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pregenteb to 
of tl{e 

Ptttliarstty of 'Sarottta 

Eric N. Armour Esq» 




I N S T I T U 

T E S 




O ?> T H E 

^Inftitutes of tl)e Hatus of englanD* 



Proverbs i2. ft8. "Ne tranfgrediaris antiquos terminos qucs pofuerunt patres tuL 

Terminos proprise poteftatis egreflus in aliam meflem perperam mittit 
falcem fuam. 

Authore EDWARDO COKE, Milite, J. C. 

Haec ego grandaevus pofui tibi, candide leftor. 

ILonlion : 

Printed for E. and R. BROOKE, Bell-Yard, near Temple Bar, 



Of the fcveral Courts in this Fourth Part of the 
Institutes, treated of. 

C'p. Pag. 

I • yJ F the high and moft honourable Court of Parliament, i 

2. Of the Councel Board or Table. - - - 5J 

3. Of the Power and Authority of the Prote^or, - - 58 

4. Of the Court of the High St eivard of England. - - ibid. 

5. Of the Court of Star-Chamber, coram Rege et Concillo. 60 

6. Of the Court for Redrejfe of Belays of Judgements tn the 

Kings great Courts. - - - - - 67 

7. Of the Court of Kings Bench, coram Rege. - - 7^ 

8. Of the Court of Chancery, coram Rege in Cancellaria. 78 
^. And incidently of the Court of Requefls. - - - 97 

10. Of the Court of Common Pleas. - - - - 99 

11. Of the Court of Exchequer, - - - - loj 

12. Of a Court to enquire of and certifie unlawful and un- 

true Accounts in the Exchequer, - - - - 117 

13. Of the Court of Exchequer Chamber, - - - 118 

1 4. QT the Firji Fruits and Tenths Ecclefiafticall. - - 1 20 

15. Of the Court of Augmentations. - - - - 121 

16. Of the Court of gener all Surveyors of the Kings Lands, 

i^c, - - - ----122 

17. Of the Court of Chivalry before the Lo. Conftable and 

Earl Mar jh all. - - - - - -123 

18. Of the Court of the Marfhalfea. - - - 130 

1 9. Of the Counting-houfe of the Kings Hcufhcld, called the 

Greencloth, and by the way of the War drop, &c. - 131 

20. 0/ the Court of the Lord Steward, Treafurer and Con- 

troller of the Kings Iloufe, concerning Felony by compaf- 

fing, &c. to kill the King, ^c, - - - - 133 
11* Of the Court of the Lord Steward of the Kings Houfe, 

A 3 cr 

The table. 

Cap. Paj. 

or in his Ahjence of the 'Treafurer and Controller of the 
Kings Houfe, and Steward of the Marfhaljea, of 'Trea^ 
Jon J Murder J and Blood-fhed within the Kings Houje, 133 
2-2. Of the Court of the Admiralty proceeding according to 

the Civil Law, - - - - -134 

23 . Of the Court of the Commijfton under the Great Seal hy 

force of the Statute ofi% H. 8. cap. i^. for Criminall 
and Marine Caujes -proceeding according to the Courfe 
of the Common Law ^ r - - - - I47 

24. Of To^'tmoots or Tort- Courts, - - - - 148 

25. Of the Power and Authority of Commiff oners and others 

for maintaining and er elding of Beacons^ Light-houfeSy 
ard Sep -marks ^ and concerning V/atches, - - ibid. 

a6. Dc Confervatore feu Cuftode Treugarum, i, Inducia- 
rum cc falvorum Regis QQVi^\!i^yyK\\x\^andincidently of 
the Office :, Authority^ and Priviledge of AmhaJfadorSy 
and of Leagues^ treaties, and Truces, - - -152 

27. Of the Courts of the Juffices of AJfife, and ^/Nifi Prius. 158 

28. Of jtijlices of Oier and Terminer, - - - 162 

29. Of the Courts of Jpeciall Juftices of Oier and Terminer ^ 

concerning i. Purveyors. 1. Mij demeanors of Villains^ 
&c. 3. Sums of Money colleSledfor Houfes of Corrections 
^c. 4. CoUedges^HoJpitalss charitable VJeSy ^c, - 166 

30. Of Jufiices of Gaol- delivery, - - -. - 168 

31. Of the Court of the Seffions of the Jufiices of the Peace, 170 

32. Of the Court of Inquiry of the Defaidts of Juftices of 

Peace^^c. cciicerning Riots i&c. - - - 184 

22' Of the Court of Jufiices in Eire or Itinerant, - - ibid. 

34. Of the Court cf Jufiices cf Trailehajion, - - - i85 

35. Of the Courts of IVards and Liveries. - - - 188 

36. Of the Court of the Duchy Chamber of Lancafler at WeJi- 

7ninfier. - - - - - -204 

37. Of the County Palatine of Chef er, - - - 211 

38. Of the County Palatine cf Durham, - - - 216 

39. OftheroyallFranchifeofEly, - - - - 220 

40. Of the Comity Palatine cf Pembroke, - - - 221 

41. Of the Fra7ich'ife of Hexham and Hexhamflnre, - - 222 

42. Of the Courts of the Cin^iie Ports, - - _ ibid. 


Tt' a b l e. 

43. 0//^<? C^//r/ c/zi?^ EjciKaior and of Commiftoners for 

finding Offices, ^c. - - - - - 22$ 

44. Of the Courts of the Univerftties of Cambridge and Ox- 

ford. -------- 227 

45* Of the Courts of the S tanneries in Cornzvall and Devon. 229 

46. Of the Court of the Mayor of the Staple, - - - 237 

47. 0/ //^Jif legal Courts and their Jurif dictions within the 

Principality of TFales. - - - - - 239 

48. Of the Court of Equity before the Preftdent and Councell 

of ^FaleSy and the Marches of the fame. - - 242 

49. Of the Prefident and Councell in the North, - - 245 

50. Of the Courts and their JurifdiElions within the City of 

London, and 

1 . Of the Huftings - . _ . - 24^ 

2, 3.'The two Courts of the Sherifs - - - ibid. 

4. The Court of Equity before the Lord Mayor, commonly 

called the Court of Confcience. - - - 248 

5. The Court of the Mayor and Aldermen. - - ibid. 

6. The Court of Orphans. - - - - 249 

7. The Court of Common Councell. - - • ibid. 

8. The Court of the Wardmote. , . - - ibid. 

9. The Court of Halimote. _ - • - ibid. 

10. The Court of the Chamberlain for Prentices. - - 350 

11. The Court for the Confervation of the Water and River 

of Thames. - - - - - - ibid. 

12. The Court of the Coroner in London. - - - ibid. 

13. The Court of the Efcheator in London. - - ibid. 

14. The Court of Policies and Afluranccs in London. - ibid. 

15. The Court of the Tower of London. - - - 251 
J 6. The Jurifdif^ion, &c. of the Colkdge of Phyfitians in 

London, &-c. - - - - - ibid. 
Of the Court of the Juftices affigned for the Government 

of the Jews. . - - - - - 254 

Of the Courts of StanclifFe and Friendkne Wapentake. ibid. 

51. Of the City of Wefiminfler, - - - - 255 

52. Of the City of Norwich. - - - - -256 

53. Of the Court of the Tourn. - - - - -259 

54. Of the Court of the Leet or View of Frank-pledge. - 261 

S^. Of the County Court, 266 

f^6. Of the Hundred Court, - - - - -267 
^-J . Of the Court Baron. 268 

58. Of 

The table. 

Cap. Pag. 

58. Of the Court of Ancient Bemefne. - - - 269 

59. Of the Court of the Coroner, - - - - 271 

60. Of the Court of Pipowders, - - - -I'll 

61. Cy/^^? C(:?^r/ ^/^^ C/^r^ (?/*/Z'^ Market, - - - 27J 

62. Of the Court of the Commifftoners of Sewers, - - 275 
^3* Q/^ ^^'^ Co^r/ ^ /^^ Commifftoners upon the Statute of 

Eankrouts, - - - - - - -277 

64. Of Comyniffoners for Examination of Witneffes. - - 278 

65. Curia Curfus Aqua apud Gravejend, - - - 280 

66. Of the Kings Swanheard, - - - - - ibid. 

67. O//^^ JVardens Courts in the Eafl, Wefiy and Middle 

Marches adjoyning to Scotland. - - - - 281 

68. Of Callais^ or Callis Caletum, - - - - 282 
(i(). Of the Ifle of Man i and of the Law and Jurijdi^ion of 

thejame, ------- 283 

70. Of the Ifles of J erf ey^ and Garnfey^ and of the Law and 

Jurifdi^ion of the fame, - - - - -286 

^i.OfthelfleoffVight. ------_ 287 

72. Of the Ifland called Lindesfarn^ &e* called alfo the Holy 

Ifland, ------- 288 

73. Of the Forefls, and the Jurifdi5fion of the Courts of the 

For efts, - - - - - - -289 

74. Of the Ecclefiafticall Court s^ viz, 

1. The Court of Convocation. - - , - 321 

2. Concerning Siibfcription. - - - _ 322 

3. Of the High Commiflion in Caufes Ecclefiafticall. •^ -' 324 

4. The Prerogative Court. ----- 335 

5. The Court of the Arches. - - - - 337 

6. The Court of Audience. . - , - ibid. 

7. The Court of Faculties. - ^ - , . ibid. 

8. The Court of Peculiars, Curia Peculiarium. - - 338 

9. The Confiftory Courts. - - . - - ibid. 

10. The Court of the Archdeacon, or of hh CommifTary. - 339 

11. The Court of Delegates, and incidenlly of Appeals, - - ibid. 
\2. The Court of Commiffioners^ of Review. - . - 34.1 

The Courts of the Confervators of the Priviledges of St. 

Johns of Jerufalem, , . - . - ibid. 

75. Of Scotland, - - - - - . - - 345 

76. Of the Kingdome of Ireland^ ^ . - . 349 
?'/[7^ Epilogue., 



T r B I. 

P R O CE M I U M. 

IN the two former parts of the Inftitutes, we have prin- 
cipally treated de communibus placiiis, and of tliofe two 
great pronouns \jneum Sc tuum.] In the third we have 
handled placita corona^ and criminal caufes. But becaufe 
rerum ordo confunditur^ ft unicu'tque jurlfdi^lo mn fervetur^ Rtpils, 

we in this fourth and laft part of the Inftitutes are to fpeak 
of the jurifdidion of the courts of juftice within this realm. 

JurifdiSIio eji authorhas judicandi Jive jus dicendi int* partes Junjdiaio juidf 
de aSi'tonibus perfonarum et rerum fecundum quod dedu^a fue" ^^J^ " '^' "*°°' 
runt in judicium per authoritatem ordinariam feu delegatam : pjetaii 6 ^^6* 
And again, ^ furifdiSJio eji potejias de publico introduBa cum J["1j» ^^• 
neceffitate juris dicendi. It is derived of /«;•, and ditio^ i. po^ En ic cafe del 

-^ . : -^ ' ^ Marflialfea. 

ie/iai juris. 

^ Curia hath two feverall fignifications, and accordingly it c CurU quid? 
is feverally derived. It lignifieth the kings court, where his 
royall perfon, and his honourable houfehold doe refide, and is 
all one with palatium regium^ and is derived aao tS xufln'y of 
the lord, becaufe the foveraign lord refideth there. It alfo 
fignitieth a tribunall> or court of juftice, as here it doth, and 
then it is derived a cura-, quia ejl locusy ubi publicas curas ge^ Fcftui. 

Of jurifdiiSlions fome be ecclefiafticall, and fome civill, or 

tcmporall : of both thefe fome be primitive, or ordinary with- 

X aut 




out commlffion ; fome derivative, or delegate by commifKon, 
Of all thefe, fome be of record, i;nd fome not of record j 
fome to enquire, hear, and determine, fome to enquire only ; 
fome guided by one law, fome by another ; the bounds of ali 
and every feverall courts being mod neceffary to be known. 
For as the body of man is beft ordered, when every particular 
member exercileth his proper duty : fo the body of the com- 
monwealth is beft governed when every feverall court of juf- 
tice executeth his proper jurifdi6lion. But if the eie, whofc 
duty it is to fee, the hand, to work, the ket, to go, fhall ufurp, 
and incroach one upon anothers work: as for example, the 
hands or feet, the office of the eie to fee, and the like; thefe 
fhould afluredly produce dif6rder and darknefTe, and bring the 
whole body out of order, and in the end to deftru6lion. So 
in the common wealth ('juftice being the main preferver there- 
of) if one court fhould ufurp, or incroach upon another, it 
"Would introduce incertainty, fubvert juftice, and bring ali 
; things in the end to confufion. 

Now when I confidered how much it would tend to the 
honour of the kings majefty, and of his laws, to the advance- 
ment of juftice, the quiet of the fubje£l, and generally to the 
good of the whole common wealth (no king in the Chriftian 
world having fuch tribunals, and feats of juftice, as his ma- 
jefty hath, which, God willing, in this treatife we fh-all make 
to appear) that all the high, honourable, venerable, and 
neceffary tribunals, and courts of juftice v/ithin his majefties 
realms and dominions, as well civill as ecclefiafticall, might 
be drawn together, as it were, in one map, or table, (whicl) 
hitherto was never yet done) that the admirable benefit, 
beauty, and delegable variety thereof might be, as it were, 
uno intuitu beholden, and that the manifold jurifdi6lions of 
In the preface to the fame might be diftin6lly underftood and obferved. We 
the inftiujus.^ having (as elfe where we have faid) colle6l:ed fome materials 
towards the raifmg of this great and honourable building, and 
fearing that they fhould be of little ufe after my deceafe, being 


nerval minutns. 

R O E M E. 

very fhort, and not cafily of others to be underftood, if I 
fhoiild have left them as they were. 

Out of the duty that I owe to his mofl excellent Majefty, 
and my zeal, and afFe£lion to the whole common wealth, I 
have adventured to break the ice herein, and to publifh more 
::t larf^c thofe things which in our reading wc had obfervcd 
concernins; jurifJi6^ion of courts. I confeflc it is a labour 
of as great pains, as difficulty: for as in an high and large 
building, he that beholds the fame after it is finiflied, and fur- 
niftied, fceth not the carriages, fcafFolding, and other in- 
vifible works of labour, induftry, and (kill in architecture : 
fo he that looketh on a book full of variety of important matter, 
cfpecially concerning facred laws, after it is printed and fairly 
bound and polifhed, cannot fee therein the carriage of the ma- 
terials, the fearching, finding out, perufmg, and digefting of 
authorities in law, rols of parliament, judiciall records, war- 
rants inlaw, and other invifible works, tarn laboris^ quam * in^ « Mirer-aa auajt 
genii : yet I was the rather encouraged thereunto, both be- 
caufe I have publifhed nothing herein, but that which is 
grounded upon the authorities and reafon of our books, rols of 
parliament, and other judiciall records, and efpecially upon the 
refolution of the judges of latter times upon mature delibera- 
tion in many cafes never publiflied before ; wherewitli I was 
well acquainted, and which I obferved and fet down in writ- 
ing, while it was frefh in memory. 

There be amongft the kings records divers and many rols, 
whereof you (hall find little or no mention (that we remem- 
ber) in our books, viz. Rot. Parliament. Rot. Placitorum Co- 
rona^ Rot. Placitorum Parliament. Rot. Clauf. Rot, Bre^ 
vium^ Finium^ Inquifttionwn^ Liberationum^ Rot. Cartarum^ 
Efchaetriay Pat. Rot. Ordinationum^ Rot. Francia^ Scoties^ 
Vajconia^ et Almania^ Rot^ Romana^ Rot. Judaorum^ Rot, 
Ragman^ Brangwin^ Rot. Contrarienftum (and the rea- 
fon of the naming of this roll thus, was for that Thomas 
tarl of Lancafter (a man fingularly beloved) taking part 



with the barons againft king E. 2. in hatred of the Spen- 
cers, it was not thought fafe for the king, in refpedt of their 
power and greatneffe, to name them rebels or traitors, but 
contrarients) and fome others. In" this and other parts of our 
Inftitutes we cite divers records out of many of tliefe rols: 
Herein, as in the reft of our works, you fhall obferve, that 
in the courfe of our reading we took all in our way, 
and omitted little or nothing, for there is no knowledge 
(feemeth it at the firft of never fo little moment) but it will 
ftand the diligent obferver in ftced at one time or other. 

And thus for all our pains, wifhing the benevolent reader 
all the profit, we (favente Deo^ et aufplce Ghriflo) begin 
with the high, and moft honourable court of parliament. 





CAP. I. 

Of what Perfons this Court conjijleth. 

THIS court confifteth of the kings majefty fitting there as in Scr the firft oHrt 

his rovalLjiaiiuciucapacitv, and of the three eftates of the of thdnftirures, 

/• ^ realm': tizTof the lords 4yiritnall,archbifho3>s and bifhops, Xl^^J^^^'^^l'^l 

being in number 24, who fit there by fuccefiion in refpeft of their ^^^ narn'^s o<s 

tounties, or * baronies parcell of their bllhopricks, which they parliame-nr, and 

hold alfo in their politick capacity ; and everv one of thefe when the antiqu ty 

anv parliament is to be holden, ought, ex debito iufiiti^e^ to have ^ilfT * j- 

' •. c r -r"!- 1 J ^ II J 1 -rr Modus tfnevdt, 

a writ or uinnnions. The lords ternporall, dukes, marquilks, p^^i ^^^ ^^ ' 
e::rls, vifcounts, and barons, who fit there by reafon of their dig- ^ Aiit'nfbi 
nities which they hold by defcent or creation, in number at tliis ricks ot En janJ 
tin^.e 106 : and like^vife every one of thefe being of full age ought w nf the kings 
to have a writ of fumnions ex ilebito jvjliti<:e . The third eftate is pi 'grnitors in- 
thc commons of the rcalme whereof there be * knights of (hires or ^'^'^^"'5'°"^ '** 
counties, citizens of cities, ar.d burgefies of burghes. AH which anrf("uodati°n 
arc refjrflively ele»5ted by the fliireS or counties, cities and ttrtfndum ter a- 
burghes, by force of the kings writ ex dehito jujlkife^ and none m'uatum Jeu ha. 

I of them ought to be omitted : and thefe reprefent all the commons *omam, and were 
of the whole realme, and trufied for them, and are in number at of ^"cient time 
-1 • ^- ' donative, and 

this time 493. thefe bifiops are 

called by writ to 
the parliament as other lords of pirliament be. Rot. Claufe 9 H. 4. m. i. Glanvll. lib. 7. ca. i. 
vcrf. firrrT). Brad. lib. 5. fo. 412. 427. a. 10 H. 4. 6. 21 E. 3. 60. 17E. 3.40. 48. 73. Dlcetug 
deane of London. » 5 R. 2. cap. 4, fta^ ulr. io are they ranked. Pruv. 11. 14. Salui ub't mults 
eofifelia. Rot. Pari. 7H. 4. nu. a. Muhorum conjilia requiruntur in magna. 

Of what Number, 

In the beginning Romulus ordained an hundred fenators for the Fcftui. 
good government of the common wealth : afterwards they grew to 
300, and fo many were of -l^c houfe of commons in Fortcfcue's 
time ; who treating with what gravity ftatutes are made, faith ; Dum Fortefcue, cap 
nca unius, aut centum folum cojifuhorum vlrorum prudentla^ fed plus quant 1%, fo. 40, 
trecentorum ele^orum hominum^ quali numeio olimfenatM Romanorum re- 
^ebatw\, ipfafiatvta editafunt. 

Cicero, lib. i. 
Epift. faiinij. 


Rot. Pari. 

50 E. 3. Bonum 


« 14 H. 8.3. 

per Fineux Hol- 
lenf. chron. 
54 H. 8. 956, 
957. Dier 
38 H. 8. 60,61. 
a& 3E.6. ca.36. 
^28 E. 3. ca. 6. 
Reglft. 177. 
F. N. B. 164. k. 
PI. R. 232. 
Stanf. PI. 
Cor. 49. 
^ For this d'lf- 
tinftlon, fee the 
fecond part of 
the Inftitutes, 
Mag. Cart. verb, 
[per pares.] 
to. 29. a. 

0{ ancient time 
both houfes fat 

nu. 8. 

The High Court of Parliament. Cap. i. 

Erant aiitc77i fcnatorcs rnajcrnvi genthan^ ctfenatores mimrum gentium^ 
ex patrici'is et mhiltbus de.ili^ hit ex populo. 

And it is obferved that when there is befl: appearance, there is 
the heft fuccefle in parliament. At the parliament holden in the 
feventh year of the raign of H. s;. holden before the duke of Bed- 
ford, gardian of England, of the lords fpiritiiall and temporall, 
there appeared but thirty in all : at which parliament there was but 
one aft of parliament palHd, and that of no great weight. In asirn 
50 E. 3. all the lords appeared in pcrfon, and not one by proxie. At 
which parliament, as it appeareth in the parliament roll, fo many 
excellent things were fped and done, as it was called bonum parlia- 

And the king and thefe three eftates * are the great corporation 
or body politick of the kingdome : and do fit in two houfes, viz. 
the king and lords in one houfe, called the lords houfe, and the 
knights, citizens and burgefles in another houfe, called the houfe of 

* For this word [commons] fee the ftatute of 28 E. 3. whereby it 
is provided that the coroners of counties fliall be chofen in full 
county per les commons de 7nefme les counties. Commons are in le- 
gall underftanding taken for the frank tenants or freeholders of 
the counties. ^ And wbofoever is not a lord of parliament and 
of the lords houfe, is of the houfe of the commons either in per- 
fon, or by reprefeiitation, partly coagmentative, and partly repre- 

But of ancient time both houfes fat together. In 8 H. 4. an 
a6l of parhamjent concerning the fucceffion of the crown in- 
tailed to H. 4. whereunto all the lords feverally fealed, and 
Sir John Tebetot the fpeaker in the name of the commons, put 
to his feale. 

Note, that in the letters to the pope by all the nobility of Eng- 
land at the parliament holden in 28 E. i.' the conclufion is this, h 
cuius rei tefiimonium Jigilla nojlra tarn pro nobis quam pro tcta communi- 
tate prad. regni Aji^dia prcefcntlb.funt appenfa. Hereby I gather, 
that at this time the commons had no fjieaker, but both houfes fat 
together, for if the commons had then had a f[}eaker, they would 
have appointed him to have put to his feale for them, as in 8 H. 4. 
they did. Certain it is, that at the firft both hcufes fat to- 
gether, as it appeareth in the treatife De modo tenendi parliamentian. 
Vide Rot. Pari. 5 E. 3. nu. 3. and in other places in the fame roll, 
and in 6 E. 3. in divers places it appeareth that the lords and com- 
mons fat together, and that the commons had then no continuall 
fpeaker, but after confultation had, they agreed upon fome one or 
more of them that had greateft aptitude for the prefent bufmefle to 
deliver their refolution, which wrought great delaiesof proceeding, 
and thereupon the houfes were divided, and the fureft mark of the 
time of the divifion of them is, when the houfe of commons at 
the firft had a continuall fpeaker, as at this day it hath. 

After the divifion the commons fat in the -chapter houfe of tlie 
abbot of Weftminfter. 

And this court is aptly refembled to a clock which hath within 
it many wheels, and many m:Otions, all as well the lefier as the 
greater mull move: but aftertheir proper manner, place, and mo- 

Cap. I . The High Court of Parhament. 

tion ; if the motion of the Icfler be hindered, it will hinder the mo- 
tion of the greater. 

The Names. 

Tills court is called by feverall names, as anciently [iv'tenage 
mote] cotrventus fapientum ; parliamentum^ of which we have fpoken 
in another place; comitia^ a corundo^ quia coeunt ibi dcllberaturi Je 
• rtrdu'is et undent ibus vcgotiis regni, etjiaturrty ct J.frnjioriem regni^ et 
ecckfitt Anglican.-e conccrneyitibtts. ^ Lcmm\ine concilium regniy ^ ge- 
net ale concilium regnl^ et ^ co*iciHum rcgniy and aji/a generalisy and 
fij:fa ab ajfid^ndo^ as ajpfa de Clarendon 22 H. 2. 

Upon foiiie of the records and rols of the parliament it is 

Pcrlege quee rc^ni clarijfima conciliorum 

Sunt monumenta^ aliter nil prceter /omnia cernis, 

* And Virgil writing of the parliament of the gods ufed the fame 
word of amcilium in the fame fenfe. 

Panditur interea domus omnipotentis O^ympi, 
, Conciliumq; I'ocat divum pater ^ atq; hominum rex^ ^c. 

Tacitus in wV/z Jgricol^e in the time of the Britons calleth it con- 
i-entusy a cofivenicndo. 

Ingulphus, who died before 1109, faith, Rex Eldredus convocavit 
magnates, epifcopos, procacs, et opiimates ad tra^andum de publicis nc- 
gotiis regni. 

Tully calleth it, Confcjfum fenatorum^ a conjidendo. 

See the firft part 

of the InftituicJ, 

feA. 164. ubi 


* Breve parliam. 

** Brcvia origi- 

naiia de vado, 


«: W. I. in ex- 



cap. 10. & lib. 

J 3. cap. 32. 

Lib. 9. cap. 10. 

BraiSlon lib. 3. 

tradh a. cap. 3. 

^ jtneidos 10. 

concilium deo- 



34 H. 6. 40. a 

Parliaments in Scripture, 

And the like parliarr.ents have been holden in Ifrael, as it ap- 
pcareth in the holy hi (lory. Convccavit David omnes principes Ifrael., 
duces, tribunes, et prapojjtos turmarum, tribunes, c.nturioius, et qui pr^e- 
grant fubjiantjis et pt>JJe[Jionibus regis, filiof que fuos, cum eunuchis, et po' 
tcnfes, et robii/iijimos quofque in exercitu Jerufalem. And when they 
"were all afllmbled, the king himfelf fliewed the caufe of calling 
that parliament. Audite me fratres met et populus meus, cogitavi ut 
adificarcm domum in qua requiefceret area foederis domini, et ad fca- 
helium pedum Dei j.oliri, et ad adificandum omnia pneparavi, ^c. 
^ And the like parliament did king Solomon fon of king David hold. 
Congregavit Solomon majores natu Ifrael, et cun^os principes, tribunes, 
et capita familiarufn de filiis Ifrael in Jerufalem, C3*r. ^ There was 
alfo a parliament holden in tlie time of the judges. Convenit uni- 
xcrfus Ifrael ad civitatcm quaji homo unus eadem mctite, et uno conflio^ 
^c. And that parliament builded on fuch unity, had blefled 
fuccefle. . 

Of this court of parliament the king is caput, principium et finis. 
And as in the naturall body when all the fmews being joyned in 
the head do join their forces together for the ftrengthning of the 
body, there is uliimum potentice : \o in the politique body when the 
king and the lords fpirituall and temporall, knights, citizen?, and 
V. -.^^ . are all by the kings command aflembled and joyned to- 

S 2 gether 

Chron. ca. i8. 


A<SuS aiflivo- 

rum (unt in pa- 

tiente dirpofito, 

faith t ic philo- 


^ z Chron. ca. 5. 


^ Judges 2c. II. 

Modus tencnd. 


Rot. pari, anno 
3 H. 6. nu. 3. 

Virg. Georg. 
Ilium non po- 
puJi fafces, non 
purpura regum 

Ariftotle. Bar- 

The High Court of Parliament. Cap, i„ 

gether under the head in confultation for the common good of the 
whole realm, there is ultimum fapientice » 

What Properties a Parliament Man Jhould have. 

It appeareth in a parliament roll, that the parliament beincr, as 
hath been faid, called commune conciliuuh every member of the 
houfc being a counfeller, (hould have three properties of the ele- 
phant ; firft, that he hath no gall: fecondly, that he is inflexible, and 
cannot bow : thirdly, that he is of a moft ripe and perfeft mem.ory : 
which properties, as there it is faid, ought to be in every member 
of the great councell of parliament. Firft, to be without gall, 
that is, without malice, rancor, heat, and envy, in elcphante melan- 
cholia tranjit in nntrimentwn corporis^ Every gallifh inclination (if 
any were) ftiould tend to the good of the whole body, the com* 
mon wealth. Secondly, that he be conftant, inflexible, and not to 
be bowed, or turned from the right, either for fear, reward, or 
favour, nor in judgement refpe6t any perfon. Thirdly, of a ripe 
memory, that they remembring perils pail, might prevent dangers 
to come, as in that roll of parliament it appeareth. Whereiinto 
we will adde two other properties of the elephant, the one, that 
though they be maximcs virtutis, et maximi inteUediis^ of greateft 
ftrength, and underftanding, tamen gregatim femper^ inceduni, yet 
they are fociable, and goe in companies ; for ani?nalia gregalia non 
funt nociva., fed animalia folivaga Junt noci'va. Sociable creatures 
that goe in flocKs or heards are not hurtful], as deer, flieep, &c. 
but beafts that walk folely, or Angularly, as bears, foxes, &c. are 
dangerous and hurtfull. The other, f'hat the elephant is philan- 
thdpos, homini erranfi viam cjiendit^ and thefe properties ought every 
parliament man to have. 


a Mich. 5 E. X. 
in communi 
banco. Rot. ico. 
Line. Pafch. 
39 E. I. Rot. 
145. Abbot dc 
Selby. Pafch. 
28 E. I. coram 
xcge rot. between 
the King and 
Venables In 
<Juare k^jiedit. 
2Vlich. gx.'l. 
coramreferot. 6. 
and many others 
where the caufes 
and reafons, pro 
«t contra have 
been fet down, 
ice. 6 E. 3. fo. 5. 
per Herle. 
3E.4. 2. b. 7.? 
jct H. 6. 63. a. 
aa E. 4. i«, per 

Of Records of Parliament, 

The reafon wherefore' the records of parliament have been (o 
highly extolled, is, for that therein is fet down in cafes of diffi- 
euky, not only the judgment, or refolution, but'the reafons, and 
caufes of the fame by fo great advice. * It is true * that of ancient 
time in judgemients at the common law, in cafes of difficulties 
either criminal!, or civili, the reafons and caufes of the judgement 
were fet down in the record, and fo it continued in the reigns of 
E. I. and moft part of E. 2. and then there was no need of re- 
ports : but in the reign of E. 3. (when the law was in his height) 
the caufes and reafons of judgements, in refpeLl of the multitude 
of them are not fet down in the record, but then the great cafuifli'i^ 
and reporters of cafes (certain grave and fad men) publiflied the 
cafes, and the reafons and caufes of the judgements or refolutions, 
which from the beginning of the reign of E. 3. and fmce we 
have in print. But thefe alfo, though of great credit, and excels 
lent ufe in their kind, yet far underneath the authority of the par- 
'■^ment rols, reporting the a<fts, judgements, and refolutions of that 
.gheft court. 

8. per HufTey. rot. par. 19 E. i. rot. 12. Margery Weylandj cafe. Nota quia op- 

Cap. I. The High Court of Parliament. 

7*/,.. S "•>""-" ^ of Parliament, 

The king </r Mi:/<i^>:r:!o coiLnii (fof ^O be the \y^n^v:> ui the writ Proy. 13. 16. 
of parliamcm) refolving to have a parliament, doth out of the ^*/'^"*^'^°^* 
court of chancery fend out vvritb of lummons at the leaft forty ^n'o.^^vTdetnfra. 
days before the parliament begki : every lord of parliament, either 1 hfVe writs of 
ipiritualJ, as archbifliops, and bifliops, or temporal!, as dukes, mar- fummons you 
quiflcs, earls, vifcounts and barons; peers of the realm, and lords j^*l' fi"'!/'" ' . 
of parliament ought to have feverall writs of fummons. x^r^xlilToT fox 

they are not in 
iheRfgidcr, and in that rol are the writs Dc cxpcnfis militum, civiutn et burgcnfium, ct procurato* 
rum clcri, and thefe are in the Kegider alfo. 

Temporall AJjiJlants, 

And all the judges of the realm, barons of the exchequer of 
the coif, the kings learned councell,.* and the civilians mafters * ^'^SJ/^* *^'' - 
of the chancery are called to give their afliftance and attendance fj^ "cai'i^at*- 
in the upper houfe of parliament, but they have no voices in par- tendants. 
Hament ; and their writs differ from the writs to the barons : for 
their writs be, Qluod interjitis nohifcum et cum caterh de conjilio nojlro 
(and fometimes nohifcum only) fuper pramlffis traSlaturi^ vefirumque 
confilhim impenfuri ; but the writ to the barons is, QubJ interftis cum 
pralatisy maonatibus ft proceribus fuper d'lHis negotiis tra^aturi, v^f 
trumque confilium impenfuri, 

Spirituall Jjft/iants, Procuratores Cleri. 

And in every writ of fummons to the bifliops, there is a claufe ^^^'^^^^^^^^^ 
requiring them to fummon thefe perfons to appear perfonally at the ciau "s^E. 2° ' 
parliament, which is in thefe words, Pr.-emonientesdecanum ct capitulum m. 15. Dorf. 
ecclefia vejira Nonuicenfs^ ac archidiaconos toiumque clerum vtjira dio- lb. 5. E. 2. 
cef quod iidem decani et archdiaconi in propriis perfonis fuis^ ac di^um "^- ^ 5- 
capitulum per unum^ idemque da us per duos procuratores idoneos plenam j^' JVo ^2 e'5* 
^' fHfficitntem potefiatem ah ip/is capitulo et clero divijim hahcntes pra- p-,*t j. '^, j/ 
did^ die et loco perfmaliter interfnt ad confentitndum liiis qua tunc ibi- lb. 36 E. 3. 
d:m de communi coifilio diiii regni nojiri divinafavente dementia con- m. 16. Rot. par. 
tigerit or dinar i : and the bifhop under his feal make certificate ac- '^^- ^' ""'j^^" 
cordingly. And thefe are called prccuratores deri^ and many times |j R.^a/prol 
have appeared in parliament as fpiriluall affiftants, to confider, curatorcs Cleri. 
confult, and confent, ut fupra^ but had never voices there, becaufe reg. 261. a. 
they were no lords of pariiament. Some have thought, that be- F.N. B. 2.29. a. 
taufe the clergy were not party to the eledion of the knights, ciero""^"'" 
citizens, and burgefles, that \\\t{t procuratores cleri were appointed to j^ fafclcul. lite- 
give their confent for them, but then thev fliould have had voices, rarum procurar, 
which queftionlcffe they never had. And by the words of the ^^c. 13 H. 4. & 
writ it was to confent to thofe things which by the common coun- L^h/rcafter tit 
cell of the realm fliould happen to be ordained, fo as their confent p^j^j^J^" 
was only to fuch things as were ordained de communi ccncilio regr.i, 
and that there might be an a«fl of parliament without them : 'and 
in many cafes multitudes are bound by ads of parliament which 
^e not parties to the eledions of knights, citizens, and burgefll's 

B 3 ^^ 

5 The High Court of Parliament. Cap. i^ 

as all they that have no freehold, or have freehold In auncient de- 
mefne, and all women having freehold, or no freehold, and men 
within the age of one and twenty years, &c. And it appearetli 
by the treatife de ?nodo tenendi parUament\ ^c. that the proitors of 
the clergy fliould appear, cum prafaitia cor um Jit mcejjaria (which 
proveth that they Vv-ere voiceleffe aififtants only) and having no 
voices, and fo many learned bifhops having voices, their prefence 
is not now holden neceffary. 
11^. 3. bre' jf J5 |.Q ^g obferved that in the writs of parliaments to the bi- 

bre%?2 72 1' ■? ^^ps (being lords ecclefiafticall fecular) they are named by their 
Bre' 2*91. * " Chriftian names and name of their office; as, Rex^ ^c. reveroidif- 
7 H. 6. 27. in Chijio patri yohanni eadem gratia archiepifccpo Cantuar'. or 

2.1 E. 4. 15. rex^ &c. revcrendo in ChrifiO patri Johanni epifcopo 'Noriuicenf. CiXc. 
b-'jo'd^^'^of '''"* ^^^^ '^^ ^^*^ firname be added it makes not the writ vicious. 
Hament^ and^"^* -^^^ ^^^ abbots and priors being lords of parliament, rehgious 
when they a^d regular, might be named by the name of their office only, as 

ccifed, fee here- Jtex dUeBo Jibi in Chrifio ahhati Sandi Edmondi de Bury, ^c 
after, pa. ^ p^ duke, a marquifle, an earl, and vifcount are regularly named 

7 He' la * ^ ^y their Chriftian names, and the names of their dignities, and rarely 
jiE. 3!bre'473. (yet fometimes) by their firnames ; nor are they named by their 
knighthood, if they have any, but rarely. If a baron be a knight, 
he is regularly named by his Chriftian name, firnam.e, and by miles 
or c/iivalicr, and his barony. If he be no knight, then he is 
named by his Chriftian name, and the name of his barony; bat 
if the (irname be added, it maketh not the writ vicious. And this 
holdeth as well where the baron taketh his dignity of a place, as 
where he taketh it of his firname ; but where the firname is digni- 
fied, there to make a formail writ, it is good to add the place of 
his barony. 

Of ancient time the temporall lords of parliament were com- 
manded by the kings writ to appear, // Jide et hmagio^ quibus nobis 
tenemini, and in the reign of E. 3. in Jide et ligeancia, and fometime, 
in fide et ho?nag:o, but at this day conftantly in fide ct liveancia^ be- 
caufe at this day there are no feodall baronies, in refpe(!^t v.'hereof 
homage is to be done, which in'21 E. 5. was the true caufe of this 

The ecclefiafticall barons fecular or regniar were commanded 
by the kings writ to be prefent, in fide et ddct'llcne^ quibus ?iohis tene- 
mini^ as the buTiops are at this day. 

We find in the rols of parhament a v.'rit in anno 23 R. 2. and 
fucceflively in every parliament untiil andin the ftft year of H. 6. 
amiongft t|ie barons that came to the parliament, it is faid magifiro 
Thom.-r de \a Warre^ and fome fay that the addition of magfitr^ was 
to diftinguifti liim from them that were knights : as in the roll 
of I E. 4. am.ongft the barons it is faid, 'Johanni de Audehy armigero^ 
for that the reft of the b-.rons (faving himfclf) and the lord 
Clynton were chivaliers. And others doe hold that he was of the 
clergy before ti e dignity defcended to him, and in that refpeft he 
was called magifier. 

In the roll ot 5 H. 5. and in many fncceeding rols we find baro 

applied to the lord of Greyftock, as Radul^h barcni de Greifiock^ 

and Jchanni baroni de Grefiock^ rmd to itw other. 

II E. 3. tit. bre, In many rols we find the barons that were knights, named chi- 

473- valiersf wherein we obferved, that they liked to be called chivaliert 


Cap. I . The High Court of Parliament. 

raliier then mililcs after lhclec;nll word (for equn aurattu is not ufcd 
in law.) For example, in anno i H. 4. Edmumlo Grev Ue Ruthin cliim 
vaiietf ^c. ami under fublcribcd thus, tnilitcs omms^ cxccptis Jc 
hanne dc Audeley mmigao^ et Johanne domino de Clynton, Aful iii 
3 E. 4. all the barons (faving the lord Scales) have tJie additions 
of ih'valifi'Sy and fubfcribed thus, Equita awati omnes pr^ttrr domi- 
m<m Scales. And in 7 H. 4. all the barons have the addition of 
chv.ilifrs, and therefore fubfcribed thus, cquites awati omtics. Here- 
by and by many others it appeareth that the b irons, if they were 
knights, were fo named ; and that they were not named chivaliers 
iinltlle they were knights. But in the reign of H. 8. and fince, 
barons are named chivaliers in the writ of lummons, though they 
be no knights. 

Baner legally bantrium^ vxillum^ baneiher^ unde haneihcrius or ba^ 
nerius^ i. baro^ vexillarius major^ ct banerettm a diminutive of banerms^ 
vrxillarius minor. A baron is called banerhcrius or banerius of the 
banner, (be nig the enfigne of his honour) ferveth for a guide and 
direiflion : fo the baron obferving the end of his nobility fliould 
be an example and guide to others, as well in war as in peace, in 
all notable liabilities and vertues, and fo of the baneret : both the 
baron and tiie baneret hath one kinde of baner : far the baneret is 
crearei in the field in the kings hoft, and (amongft other things) 
by curting the fliarp point of his pennon, and making it a banner. 
i. vcxillum baronis : fo as the baneret hath the baner, but not the 



De Baneretto, 

et uade. 

22 E. 3. 18. tit. 

dignity of the baron. And this doth notably appear by the cafe ^^^^j' 3' ^^' ""■* 
in 22 E. 3. the very words of which refolution 1 will fird fet ^ * 

downe, and then the effect. Un fuit challenge fur ceo que il fuit a 
baner., et non allocatur: car Jil Joit a baner y et ne tient per barony^ il 
ferra in ajjife. That is, one was challenged becaufe he had the ban- 
ner and was a baneret, et non allocatur by the rule of the court, 
becaufe albeit he had the banner, yet ne tient per barony^ that is, he 
was no baron of parliament. 

Nota feriem temporis^ John Coupland a valiant leader in anno 
20 E. 3. neer Durham, at Nevils Caflle, took in aperto pr^lio, 
David the fecond, king of Scots; for which king E. 3. created 
him kniglit baneret, and gave him lands and livings, and in 22 E 3. 
the cafe in law fell out. 

For this order of knighthood fee Camdens Britannia 124, and 
for this cafe of Sir John Coupland, Camden in Line. pag. 618. 
See 3 5 H. 6. fo. 46. There the challenge was that he was a ba- 
neret a lord of parliament. See 48 K. 3. 30. 48 AIT. pi. ultimo. 
Lib. 6. fo. 55. But Sir John Coupland was not the firfl baneret 
that England had, as * fouiC have thought, and was with us be- 
fore the reign of E. 3. for in pelle exitus anno 8 E. 2. in fcaccario pag 
Johannes de Cromlewele baneret tus. And ex compoto garderobee anno 
q E. 2. Nicholaus de Gray was declared by writ of E. 2. to be de 
familia regis tauquam banacttus, both for his precedency and 

For fummoning of the commons a writ goeth out to the lord 
warden of the Cinque Ports for the eledion of the barons of the 
fame, who in law are burgeifes, and to every flieriffe of 52 coun- 
ties in England and Wales for the choife and election of knights, 
citizens, and burgefles, within everv of their counties reipec- 

B 4 77/< 

* Spesd. 
See hereafter. 

The High Court of Parliament. Cap. i . 

The Beginning of the Parlia77ient, 

llot.pail 3H.6. p^^ j.j^g retryne of the writs the parliament cannot begin but by 
H'.'e.'fat in par- ^^"'^ royall prelence of '.he king either in perfon or by reprefenta- 
liamentwhenhe tion. By repiefentatioii two vvayes, either by a gardian of Eng- 
^as 3 or 4 ye^rs land by letters patents under the great feale when the king is in re- 
•old,and fodidhe ^^.^/^ ^^i^ of f^g realme : or by commiffion under the great feale of 
England to certain lords of parliament reprefenting the perfon of 
the king, he being within the realme in refpeft of feme in- 

* The patent of the office of a gardien of England reciteth his 
fpeedy going beyond fea, or in remotis^ or urgent occafiors and the 
caufe thereof. "Nos quod pax noftra tam in nfira abfmtia pra- 
fentia i»violabiHter obJervetuTy et quod Ji at comnmnis jujiit'ra Jvigulis con^ 
qicerentlhus in fuis a^ionibus et querelis^ de fidelitate diledi et fidelis 
ncfiri Edzuardi ducis Cornubi^^ et comitis Ceflria filii nojiri primogeniti 
pknarie confidentes^ conjlltuimus ipfum cijlodem di^i regjii nojiri ac locum 
noftnim tenent' in eodem regno quam diu in diRis tranfmarinis partibus 
moram feeerimus^ vel donee inde aliud duxerimxis. (And this is that 
capitalis ju/!iciarius mentioned in Mag. Carta, cap. 11. when the 
king is extra regnum) with a claufe of aiullance. ' But yet if any 
parliament is to be holden there mud be a fpeciall commllTion to 
the gardien, to begin the parliament, and to proceed therein : but 
xkietejie of the M'rit of fummons ILall be in the gardiens name. 

* A parliament was" holden in quint i quinto^ viz. anno 15 H. 5. be- 
fore John duke of Bedford, brother and lieutanant to the king, 
and gardien of England, and was fummoned under the iefie of 
the gardien or lieutenant, [f It is ensffled, that if the king be- 
ing beyond the feas, caufe to funimon a parliament in this realme, 
by his writ under the ttjie of his lieutenant: and after fuch fum- 
mons of parliament gone out of the chancery, the king arriveth 
in this realm: that for fuch arnvall of the fame king fuch par- 
liament fhall not be dilfolved, but the parliament fliall proceed 
without new fummons.] 

^ In 3 E. 4. a parliament was begun in the prefence of the 
&c. utjup> Rot. king and prorogued iintiil a further day ; and then William arch- 
parl. 3 E. 4. biiliop of York the kings commiiftry by letters patents held the 
fame parliament and adjourned the fime, &c. The caufe of t!)e 
faid prorogation was, for that the king was enforced to go in per- 
fon to Glocederfliire to repreffe a rebellion there. 

As hath been faid, the kings perfon may be re^fented by 

commiffion upder the great feale to certain lords g^parliament 

authorizing them to begin the parliament, and both the r^rdicn 

and fuch commiffioners do fit on a forme placed neer to the de- 

Rot. clauf. anno grees that go up to the cloth of eflate. 

8 E. 1. 7. Sept. y^j^fi jj-, ^g jf|J2. the queen by her commiiTion under the grer.t 
feale bearing date the 2S of Oclober anno 2B, recithig that flie fof 
urgent occafions could not be prefent in her royall perfon, did 
authorize John Whitguift archbiiliop of Canterbury, William 
baron of Burghley lord treafurer of England, and Elenry earle of 
Derby lord fteward of the houihold then being, ad inchoandum^ 
^c. tenendum^ (jfc. et ad prccedendum^ isSc. et ad fad en d^ omnia et 
Jivgida^ \^c, nee non ad parlianientum adjornandum et pro) ogandum^ ^c. 


in the 6 and ^ 
yeaic of his 
reign. The 
royall perfon 
two wayes. 
a Rot. pat. an. 
24 E, 3. m. iS. 
The patent of 

See Rot. pari. 
^5 E. 3. hu. 10. 


Hot. pari. 5H. 5. 
rii. I. 

f 3 H. 5 cap. I. 
5n print. 
JN'ctn, ^ia in 
frccjent'ia majons 
eeffat potejlas ml- 
■noris And the 
letters patents 
of this office 
is with a quam- 
d'lu in parti-. 
hu: tranfmanris 
tvrram fecerimuSf 

*Rot. X.13. 14. 
Like letters pa- 
tents to the earl 
of Warw. in the 
fan-:e parliament. 
ru. 15. 
Pari. 28 EHz. 
See an excellent 
prefidept hereof, 

m. 26. & I pars 
pit. an. 8 E. z. 
m. 26. with a 
of attendance. 
Simile 10 E. 2. 
a part pat. m. 
?.o. I? £. 3. nu. 
I. ftat. 2 in ab- 
fentia gardiaui 

Cap. I . The High Court of Parliament, ^ 

which commillion is entred in tuec verba in the Journali Hook ir\ 
the lords huiile, and in the upper | art of the page above the be- 
i^inning ot th« commiflion is written, domina rc:^ma repraifentatur 
po- lommtj/ionnyios, viz. ^c. the 29 day of October, the (aid coin- 
inilhontrs litting on a forme before the cloth of eflate, after the 
conimiilion read, adjourned the parliament untill the 15 of Fc- 
briKirv following, &:c. And this parliament began the 29 of Octo- 
ber, and not tlie 15 of February, whertin the printed book is mif- 
taken, for thtn The parliament begun, and was prorogued. 

Thus much (liall fuffice, when the kings perfon Ihall be repre- 

But when the parliament fliall rot begin at the day of the re- 
turnc, but for certaine urgent caufes then to be prorogued untill 
another day, and then to be holden before the king, there is a 
ready way for the effecting thereof, and that is by writ patent ProrogueJ ty 
under tlie whole great feale, reciting the writ of fummons, and to wntpatcau 
bear te/ie before the retornc thereof, and figned above with the 
kings figne manuell, and dirc<fled pr^latls, magnaiihus^ proarihus 
hujus regnif ac mil'itihus^ civibusy et burgenjibus convocatis et clevis ad 
hoc parTiammtum pro quibvfdam caujis et conjiderationihuiy Cs'r. to pro- 
rogue the parliament to a certaine day, and at the retornc of the 
fummons, this writ being read in the upper houfe before certaine 
of the lords of parliament, and of the commons there afTembled, 
and prorogation made accordingly, the parliament is prorogued : 
and this was fo done in anno i Eliz. the retorne of the fummons 
of parliament being the 9 of October, and by fuch a writ it was DIer. 3 El. 203. 
prorogued untill the 25 of February following, at what time in a. And herein 
judgement of law the parliament did begin, and was holden, and the printed book 
not on the 9 of Odober, as it was adjudged. A like prorogation reth^forhere'thc 
was made by the queens like writ of the parliament holden anno parhament bc- 
5 Eliz. at both which dayes of prorogation, the parliament did gun not. 
hold before the queen her felfe, untill the diflblution of the fame, 
which writs are entred in hac verba in the Journali Book. 

IVhat is to he done the firji Day of Parliament. 

*[ 8] 

On the firft day of the parliament, the king or mod commonly (ix E. 3. Sir 
the lord chancellor or keeper of the great feale in the prefence of William Thorpe 
]the lords and commons, do fliew the caufes of the calling of his \ '«^« J" '«• 
high court of parliament, but the king * may appoint any other: g sir Bart, dc 
as many times, the chiefe juftice of England, and fometirae * fome Burghcrft. 
other, as may appear in the parliament rols, only onelwilltranfcribe. ^5 £• 3- ""• 16. 

^ At this day Sir Henry Green the kings chiefe juftice (although ^7 E. 3. nu. -. 
the lord chancellor were prefent) in the prefence of the king, the \ e, ^.nu i 
lords and commom, declared the caufes of the parliament ^ in sir William 
English, viz. For redrefle of matters touching the church, for ob- Sharfliull chiefe 
fervation of the peace, for the affairs of Scotland, for the inhaun- i"'^- 45. '^^ 3- 
cing of the price of wooU, &c. ** But at the next meeting Simon ^"J;^; cd?^^^^' 
Langham biftiop of Ely (hewed the caufes of parliament, and in juitkc4VE.'3 

nu. 2. hir Jo. 
Knivct chiefe juftice. 50 E. 3, nu, 2. Sir Jo, Knivct chief juftice. 51 E, 3. nu, 13, by Sir Robert 
Aftiton the kings chamberlain. •* Pari. 36 E. 3, nu. i, Simon Langha-n b. of Eiy chancellor, c And 
fo was It done ever after. 5 R. 2. nu. 2. The caufes of parliament were in ancient time ihewcd M 
the chamber d« peint, or St. Edwards chamber. ^ Parlia, ^7. E. 3. nu. i. 

The High Court of Pariiament, Cap. r. 

the end, he did in the kings name require the commons to make 
choice of a learned and difcreet man to be their fpeaktr: and 
when a bifliop was lord chancellor, he took a text of fcripture 
Avhich he repealed in Lr.thi, and difcourfed upon the fame. But 
when a judge was lord chancellor, he took no text, but in manner 
of an oration fliewed fummarily the caufes of the parliament. 

Sickneffe caufe 

to remove the 


I H. 4. nu. 62. 

63. Rot. par), 

I H, 5. nu. 9, 

10, II. 

Rot. pari. 15 H. 

6. nu. io» & 27. 

Sicknefs no 
caufe to remove 
a member of the 
houfe of com- 

38 FT. S. pari. 
Br. 7. 

The Elc^lon of the Speaker. 

It is true the commons are to chufe their fpeaker : but feeing; 
that after their choife the king may refufe him, for avoiding of 
expence of time and conteftation, the ufe is (as in the conge de 
eflier of a bifhop) that the king doth name a difcreet and learned 
ir,an whom the commons eleft : but without their ele(5lion no 
fpeaker can be appointed for them, becaufe he is their mouth, and 
trulled by them, and {o neceflary, as the houfe of commons can- 
not fit without him : and therefore a grievous fickneffe is a good 
caufe to remove him, as in i H. 4. John Chenye fpeaker chofen 
and allowed, was for fickneffe, fo as he could not ferve, dif- 
charged, and Sir John Doreward chofen in his place : and fo was 
William ^turton, after he was chofen and allowed fpeaker, re- 
moved for grievous ficknefle, and Sir John Doreward chofen in 
his place. At the parliament holden in 15 H. 6. Sir John Tirrell 
knight was chofen and allowed fpeaker, and for grievous fickneffe 
removed, and William Beerly efq ; chofen in his place, &c. 

But ficknefi^e is no caufe to remove any knight, citizen or bur- 
gefie of the houfe of commons : fo note a diverfity between the 
fpeaker, and any other of the houfe of commons, and this diver- 
fity being not obferved begat an error by fonie opinion in 38 H. 8. 
tit.-* Parhament, Brook 7. for continuall experience is to the con- 

What the fpea- 
ker fhall do 
when he is 

The king may 
allow of his ex- 
cuf?, and dif- 
aJlow him, as 
Sir John Pop- 
ham was. 
i8 H. 6. nu. 6. 
Tlie proteflation 
of the fpeaker. 

The Prefentment of the Speaker, 

When the commons have chofen their fpeaker, the perfon 
elected fianding in his place difabling himfelfe to undergoe fo 
weighty a charge, as in his difcretion he thinks fit, defires them to 
proceed to a new choife : which being denied, and he fet in the 
chaire, then he prayeth them to give him leave, that he may dif- 
able himfelfe to the king: after this they prefent him to the king 
in the lords houfe ; where after he hath difabled himfelfe to fpeak 
before the king, and for the whole body of the realme, and made 
humble fuit to the king, left by his infufhciency the bu(ine(fe of 
the realme may be hindred, to be difcharged, and a more fufficient 
man to be chofen : if he be allowed by his majeftie, then he mak- 
eth a proteftation confifling on three parts: firfl, that the com- 
mons in this parliament may have free fpeech, as of right and by 
cuftome they have ufed, and all their ancient and jufl priviledges 
and liberties allowed to them. Secondly, that in any thing he fhall 
deliver in the nam.e of the commons (if he fhall commit any er- 
ror) no fault may be arretted to the commons, and that he mav 
refojrt again to the commons for declaration of their true intent, 
and that his error may be pardoned. The third is, that as often as 


Cap. I . The High Court of Parliament. *g ■ 

neceflitv for his majcftics fcrvicc, and the good of tlie common 
wealth (liall rcqurc, he may by the dire<ftioii of the iiouie of com- 
mons have accelfc to his royaU perfoii. 

• This is in the parliament rols called a proteftation in refpetft of Rot. par. i. R. 

the firft parr, the nature whereof is to be an exclufion of a conclu- »• nu. 15. &c. 

lion, and herein that the houie of commons be not concluded to V''*nu^x^s-* ^' 

fpeak only of thofe things which the king or lord chr.ncelor, &c. Arnold Savage 

haih delivered to them to be the caules of the calling ot this court fpeakcr. 5 H. 4. 

of parliament, but in a parlianreniary courfe of all other arduous nu. 8. 7H. 4. 

and urgent bufinefTc, which principally confift in thcfefive branches, ""• » »• Sir jo- 

as it appearcth in the writs of fummons to the lords fpirituall and a,,',7b d nu 3a 

temporal), viz. , h. .. nu. 7. 

2 H. 5. nu i<x 

And fo in fucceedlng times called a piotcftatiun. 

The Matters of Parliament, 

T. Touching the king. 2. The (late of the kingdome of England. ^^^^ pg^, ^ jj^ 

3. The defence of the kingdome. 4. * The (late of the church of 4. An ^a n- 

England : and 5. The defence of the fame church. And this ap- tituled. Jndem- 

peareth by expreffe words in the parliament writ in thefe words : «'"' ^" Jeigmort 

Pro quibufdam arduis urgentibus tiegotiis^ fios, Jiaturn^ et defenjicnem \^\^^^*^ " 

regn'i nojiri Jn^li^e^ et ecchjice AnglicatKe concernent'ibus qwiddam par- « See W. i. 

liamcntum nu/irum^ Cs'c. tenet i ordinarjimus^ ^c. And thefe words anno 3 E, i. ia 

[the ftate and defence of the kingdome] are large words, and in- the preamble, 

elude the reft. And though the ftate and defence of the church of ^^^ ^*^^*^ ''^ ^^ 

England be laft named in the writ, yet is it firft in intention, as it I,"y'"chu"ch. 

appeareth by the title of every parliament: as for example, * To And the 2 part 

the honour of God and of holy church, and quietnefle of the of the infti tares, 

people, &c. "W- ]' «^P- I- 

Now for as much as divers lawes and ftatutes have been enabled ^^^^^ ^ '^ ^"' 
and provided for thefe ends aforefaid, and that divers mifchiefs in a ^g^, ^ 
particular, and divers grievances in generall concerning the honour 50 E. 3. &c 
and fafety of the king, the ftate and defence cf the kmgdome and 
of the church of England might be prevented, an excellent law- 
was made <2»;;o 36 E. 3. which being applyed to the faid writs of -g^ - cap. 10. 
parliament doth in i^^ and elfe6tuall words fet downe the true Parliaments 
fubjeft of a parliament in thefe words. For the maii tenance of « u^jnt to be hol- 
the faid articles and ftatutes, and redrefle of divers mifchiefs and **'=" ^^^^ ^^ * 
grievances which daily happen, a parliament fliall be holden every "^i^!"^ 
year, as another time was ordained by a * ftatute. ,. {^^^ |jg| 

Before the conqueft parliaments were to be holden twice every Edgar cap. 5. 
year, Celeberrimus autem ex omni fatrapia bis quctannis conientus agi- 
tur. King E. i. kept a parliament once every two year for the moft 
part, and now it is enaded, that a parliament (liall be holden once 
every year. * * 

The Romans vanquiftied our anceftors the ancient Britains, for Tacitus in vita 

that tliey afTembled not, they confulted not in common with them, Agrlcolx, pag. 

nor common councels, as Tacitus in vita Agiicolae faith. Necaliud 3^6. 

adverfus wilidiffimas gentes pro ncbis utilii/Sy quam quod in * commune * Nota, Com- 

Tion cotijulunt. Rarus ad propulfandum commune per iculum convertus : rruneconcilium, 

ita dum Jinguli pugnantf univetji vincwttur. But to return to the mat- Conventus. 
ters of pariiament. 


Ana every city- 
two citizens, and 
out of every 

g-f Jhe High Court of Parliament. Cap. i, 

4 H, S. c. 8. And it is ena<!^ed and declared by authority of parliament in artna 

4 H. 8. That all fuits, accufc;ments, condemnations, executions, 

fines, amerciaments, punifiiments, corrections, charges, and im- 

pofitlons at any time from thenceforth to he put, or had upon any 

member, either of that prefent parliament, or at any parliament at 

* Neq; tlmida any time after that aft to be holden, for any bill, * fpeaking, rea- 

probitas, neque foning, or declaring of any matter or matters concerning the par- 

imprcba forti- Hament. to be communed, or treated of, be utterly void and of 

eft utiUs.^""'"'' "°"^ ^^^^' ^"^^^^^^^ ^^^"^^ ^^'^"<^^ ^^ generall. Now what matter 

or matters concern the parliament appear before. And this ciaufe of 

theaft of 4 H. 8. is declaratory of the ancient law and cuftome of 

the parliament. 

ffhe like writ to And this doth not only appear by the writs direfted to the lords 

all the other of parliament, but by the writs for ele6lion of the commons. For 

inwlTe's tS"^ example. The writ to the fheritfe of Norfolk for eledion of tlie 

hive bu"one knights, cltizens, and burgefies within that county is, Rex viceco- 

knight and one miti Norff, falutem. Quia nos de avijamento et ajfenfu concUii nofiri pro 

buigefie. quihufdam arduis et nrgentibus negotiis^ nos, Jiatum^ et defenfionetn yegni 

r I O 1 nofiri Anglia, et ecclejia Anglican^ concernentibus quoddam parliamen- 

tum nojlrum apud^ &V. teneri ordinaverimus^ et ibidem cum pr^latisy 

a Nota^ ad fa- magnatihus, et prcceribus didi regni mjiri colloquium habere et traBa > 

t'ie)idum et con- turn : ipji vicecoiU, "Norff. prctcipimus firuiitcr i'/ijungend\ quod fa^a 

jentiertJum. ^^ procl&matiorie in proximo com': tat u tuo pofi receptionem ejufdem brevis, duos 

miJitcs g:adiis cinBos, Ci/c. elegifaccret, ^c. * ad faciendutn et co?i- 

fentiendum Jiiis quc^ twic ibidem de com?nuni concilia nofiro Anglia (fa- 

1)111 gli two bur- venie Tho) ccntingerent ordinari ^ fuper negotiis anfedi^is, it a quod pro 

fefles. ^ defe^lu potejlatis hujufmodi^ feu propter improvidam eh^ionem militum^ 

t> Nota,juperve- cirium et burgenjium pradifff" diha tiegotia iiojira inftda nen yemanereni 

^cu:: antcaiclis, c[uovifmodo. And this power extendeth equally to all knights, ci- 

tizens and burgefles of parhament. 

What the Speaker fiall doe after his Alhzuance^ 

After the commons with their fpeaker are come from the lord,? 
houfe, and that the fpeaker is fet in the chair, then he defireth 
the commons, that feeing they have chofen him for their mouth, 
that they would favourably aflift him in their arduous and im- 
portant affairs, and that he will do them the beft fervice he 
can with all diligence and faithfuU readinelTe, or to the hke ef- 

The JVrlts ofSumfnons of Parliament^ which are to be found in 
the clofe Roll from time to time. 

Seeing the fummons of parliament (as hath been find) is by the 
kings writs, which tend to the beginning of the parliament, it fliall 
be neceflary to fpeak fomewhat of thofe writs. And it is to be 
*Braa.l. 5. f. obferved, that the fubftance of thofe writs ought to continue in 
4-^3- ^^2"p' ^^^^^ originall effence without any alteration, or addition, unlefle it 
1^2 ca."*i2 '^^^' ^^ ^y ^^ ^^ parliament. For * if originall writs at the common 
W. 2. ca. 2*5. law can receive no alteration, or addition, but by aft of parliament^, 
J. P'w of the Inft. a midto fortiori, the writs for the fummons of the higheft court of 
lea. loi. Epift. parliament can receive no alteration or addition, but by aft of par- 

Cap. I . The High Court of Parliament. 

lianicnt. Wliere « the writs of fummons iffucci out of the chan- 
cer)', and were rcturrabie in the court of parliament, the return 
thereof could not be altered, and returnaWc into the chancery, 
but by aft of parliament. And bccauic the words of the writ 
for elcft ion of knights, &'C wtre, ^ duos mililes gladiis cin^os^^c. 
it required an aft of parliament, that not.iMt: cfduircb might be 

VValfingham faith, that in anno D;.:. .,._;..- was a^w 

6 H. 4. in the writs of the fummons of parliament, there was ad- 
ded by the king a commandment in the writ, that no lawyer fliould 
be returned knight or burgefTe, (but tlic hirtorian is deceived, for 
there is no fuch claufe in thofc writs, but it was wrought by the 
kings letters by pretext of an ordinance in the lords houfe, in 
46 E. 3.) But at the next parliament in 7 H. 4. at the grievous 
complaint of the commons, being interrupted of their free eleftion 
by thofe letters (which were letters of juftice and right) it is, 
amongft other things, enafted, that eleftions * fliould be freely, 
and indifferently made notwithftanding any prayer, or command- 
ment to the contrary, i.Jineprece^ by any prayer or gift, et Jine ^re- 
<epto, without commandment of the king by writ, or otherwife, or 
of any other which was a clofe, and prudent falve, not only for 
that fore, but for all other in like cafe, and is but an aft declaratory 
of tlie ancient law and cuftomc of parliam.ent. 

Petitions in Parliament. 


« 7 H. 4. ca. 1 ?. 
Rot. par. ^ R. X, 
nu. 1, 2, &c. 
thfy be nuw r«. 
tur.ied into the 
chancery, ami 
of ihe clrrlc of 
thf croMm chere^ 
<> 23 H. 6. 
ca. 15. 

Pari r,R4. This 
was called rW&f- 
tum par/iamen- 
iutrif ia k-learn- 
ing pariamtiit. 
Rot. pari. 46 E, 
3. nu. 13. 5 R. 
2. c. 4 7 H. 4, 
ca. 1 5. Se- here- 
after more of 
this maruT, in 
this chapr. pa. 
and who b« eii- 
gible, &c. 
• Nota. 
W. I. ca. 5. 
5E. I. 

On the firft day of the parliament, after the commons be depart- 
^ to choofe their fpeaker, then are certain juftices affiflants, and 
civilians mailers of the chancery attendants, viz. four juftices, and 
two attendants appointed to be receivers of the petitions of Eng- 
Jand, Ireland, Wales, and Scotland, and that thofe that will deliver 
their petitions, are to deliver them within fix days following. At that 
time there are other juftices and civihans attendants, viz. three juf- 
tices and two attendants appointed to be receivers of petitions for 
Gafcoign and other * places beyond the feas, and of the iflcs, and 
that they deliver their petitions within fix days, &c. 

Then are appointed of the nobility lords of parliament and 
bifliops, viz. fix of the nobility, and two bifhops to be triers of 
the faid petitions for England, Ireland, Wales, and Scotland, they 
together, or four of the prelates and lords aforefaid, calling to them 
the kingslearned'^ounceil, attendants in parliament when need Ihould 
be, and to fit in the chamber of the treafurv. The like appointment 
of the nobility and bifliops to be triers of the petitions for Gafcoign, 
and other places beyond the feas, and of the ifles, and a place appointed 
for their fitting, calling to them the kings learned councell when need 
ftiould be. For petitions to be preferred into the lords houfe in par- 
liament for the countries and places aforefaid, this was the ancient 
conftant law, and cuftome of the parliament continued untill this 
day. Wherein thcfe three things are to be obferved. Firft, the ex- 
tent of the jurifdiftion of the parliament of England. Secondly, 
that for expediting of caufes, there fhould be receivers of all peti- 
tions, both of judges of the realm for their knowledge in the laws of 
the realm, and of civilians attendants, who might prepare and in- 


Receivers of pe- 
titions of Eng- 
land, Ireland, 
Wales, Scot- 

• Gafcoin, 
Guyan, Poitcrs, 
Anjou, ice. 

Triers of peti- 

The High Court of Parliament. Cap. T. 

form the triers, being lords of parliament, of the quahty of thofe 
petitions. Thirdly, that there fhonld be of the lords fpirituall and 
temporall triers of thofe petitions to try out whether they were rea- 
fonable, and good and necelfary to be offered and propounded to 
the lords. 

Of , etitions in parliament fome be of right, fome of grace, and 
fome mixt of both : fome preferred by the lords fpirituall, fome 
by the lords temporall, fome by the commons, fome by the 
lords and commons. Extra parliament urn nulla pettt'io eft ^rata^ licet 
necpjjaria ; in parliamento nulla petitto Ji ingrata^ Ji neceffaria. ^ All 
petitions ought to contain convenient certainty and particularity, fo 
as a direft anfwer may be given to them. 

^ Petitions being timely preferred (though very many) have been 
anfwered by the law and cuftome of parhament before the end of 
the parliament. This appeareth by the ancient treatife, De modo 
tenendi parliam^ntum, CsV. in thefe words faithfully tranflated 
in a fair aid ancient manufcript, for bils and petitions. The 
parliament ought not to be ended while any petition depcndeth 
undifculTed, or at the leaft, to 'which a determinate anfwer is not 
made. " 

And in the parliament rols, there is a title towards the end of the 
parliament. The petition of the commons, &c. with their anfwer 
entred and recorded in the roll of parliament. « And one of the 
principall ends cf calling of parliaments is for the redrelTe of the 
mifchiefs and grievances that daily happen. * Innovations and no- 
velties (fometimes termed in rols of parliament novelties) in parlia- 
mentary proceedings are moil dangerous, and to berefufed. ^ And 
fometime the king doth anfwer the petition of the commons by the 
aflent of the prelats, counts, barons, and commons themfelves, fuch 
unity hath been for the common good in parliaments in former times. 

Appointment of Committees of Grievances^ ^c. 

The commons being the generall inquifitors of the realm, have 
principall care in the beginnmg of the parliament to appoint days 
of committees, viz. of grievances (both in the • church and com« 
mon -wealth) of* courts of juftice, of priviledges, and of advance- 
ment of trade. Thefe committees when they meet, they eleft 
one of them to fit in the chair in likenefle of the fpeaker : the 
committee may examine and vote the queftions handled by them, 
and by one, whom they appoint, report their refolution to the 
houfe, and the houfe, fitting the fpeaker, to determine the fame 
by queftion. 

to redtefl'e griev- 
ances. And the words of the writ of parliament be, Dc arduh et urgentibut vegotus Jlatum et dt» 
Jenfionem ecclefia Anglicana concernentibuim 

* [ " I 


* Rot. par. 
x8E. I. fo. 3.& 
i6. 50 E, %. 
Du. 125. 66. Si. 
17 E. -^.nu. 55, 
56 36 E. 3. 
nu. 35. 43 E.3. 
Du. 19. 45 E. 3. 
Jiu. 33. 47 E. 3- 
nu. 16. I R. 2. 
Du. r\z. he. 

^ Ro. par. 

17 E. 3, nu. 60. 
25 E. 3. nu. 60. 
50 E. 3. 212. 

I R.2. 134- &c. 
zR. 2. nil. 38. 

1 H. 4 132. 

2 H. 4. 3. 25. 
3H. 4. 113. 
23 E. 3. nu. 42. 
25 E. 3. nu. 12. 
36 E. 7. nu. 31. 
50 E. 3. nu. 52. 
^ 36 E. T,. ca. 10. 

18 E 3. ca. 1.4. 
50 E). 3. nu. 17. 
Lions cafe. 
Rot. par. I H. 5. 
nu. 17. 13H.4. 
nu. 9. II H. 4. 

* Innovations & 

•» 36 E. 3- 
Rot. 19. &c. 

^ Bradlon. Gra- 
vius eft aeter- 
nani quam tem- 
poralem Ixdere 
And it appear- 
eth by the fta- 
tuteof 36 E. 3. 
cap. :o. That 
it is one of the 
principall ends 



The Hi'^h Court of Parliament. 




Any lord of the parliament by licence ot tiic king upon juit ^i E. 4.50. 
caule to be abftnt, may make a proxy: and in the bundle of l he ancient rr- 
proxics nano 5 H. 5. it appeurcth, that in thole days a fpirituall cord, Z)fw»'« 
lord in parliaiucnt might have made his proxie to the procurators of *'f>'Y^forl. &(. 
the clcrgie, or to any other clerk, but at this day he cannot make ^^' j"'^'*"'f' 
it but to a lord of parliament: but a knight, citizen, or burgefl'e of 
the houfe of commons cannot by any means make any proxy, be- 
caufe he is ele(fled and ti'ulled by multitudes of people. 

Of the' ancient Treatlfe called Modus tcncndi Parliamentum. 

Now for antiquity and authority of the ancient treatife, called 
modui ienendi farliamcntum^ ^c, whereof we make often ufe in this 
part of the Inftitutes; certain it is, that this modus was rehearfed 
and declared before the Conqueror at the time of his conqueft, and 
by him ap^^m^vcd for England, and accordingly the Coftquerour ac- 
cording to modus held a parliament for England, as it appeareth in 
ai E. 3. fo. 60. 

After king H. s. had conquered Ireland, he fitted and tran- 
fcribed this modus into Ireland in a parchment roll, for the holding 
of parliaments there, which no doubt H. 2. did by advice of his 
judges, being a matter of fo great weight and legal!. This modus 
in the parchment roll tranfcribed as aforefaid, by H. 2. remained 
in Ireland, and in anno 6 H. 4. was in the cullody of Sir Chrillo- 
pher Prcfton knight, a man of great wifdome and learninsj, which 
roll king H. 4. in the fame year, de ajjetifu Johannh Talbot chi- 
valier his lieutenant there, and of his councell of Ireland, exempli- 
fied for the better holding of the parliaments there ; and in the ex- 
emplification it exprefly appeareth that H. 2. did tranfcribe this 
modus, as is abovefaid. 

This modus was feen by the makers of the ftatute of Magna 
Carta, anno 9 H. 3. ca. 2. concerning the reducing of the • ancient 
reliefsof entire earldomes, baronies, and knights ifees according to 
fuch proportions as is contained in the modus, which they could 
not have done fo punctually, if they had not feen the fame, where- 
of you may read more at large in the firft part of the Inftitutes, 
fe<4. 103. fo. 76. Verbo Relief. And fome part of this modus is 
cited in the parliament roll, anno 1 1 R. 2. and other records of par- 
liament, and upon diligent fearch we can find nothing againft it. 
But many very ancient copies you may find of Jthis modus, one 
whereof we have (ttn in the reign of H. 2. which containeth the 
manner, form, and ufage of Gilbert de Scrogel marfliall of Eng- 
land, in what manner he occupied and ufed the faid room and 
office in all his time, and how he was admitted, &c. at the coro- 
nation of H. 2. and of his knight marfliall, and other inferior offi- 
cers, &c. and adjoined thereunto, and of the fame hand is this mo- 
du% as fit for him to know. 

But left it might be faid to me, as it was once faid to an oratour, 
> Ijo having Ipoken much in commendation of Hercule? : it was 


See the fccond 

, part of the Inft. 

. Mjg. Carta ca.z. 

flpag. 7, 8. 
See the ftrft part 
of the Inftltures 

' See the 2. part 
Inft. pa. %. the 
charter of king 
H. I. at his co- 
ronation having 
relation to modus 
ten;n.ii pari. 
See aifo the char- 
ter of king Johrt 
'aihno 17, Math. 
par. z^S.peroHm 
t'lquum reltv'.vm^ 
-viz. tarci comith 
pro comlte inte^rt 
ICO 1. baertt ba- 
ronis pro haronis 
inugra iQomarc. 
et bocres mUttls de 
feoHo militis inte- 
gro, 5!. See 
Mag, a. 
• It isjudly 
called antiquum 
reieviutrty becaufe 
ic is according to 
the proportion of 
this ancient mo- 


At the parlia- 
ment holden 
an* I £liz. 


Lib. Sap. 17.32. 
Mat. Par. pa. 

Rot. CI. an. 
3 E. I. m. 9. In 

Rot. par. 40 "E. 3. 
nu 8. an aft 
never yet printed. 

The High Court of Parliament. Cap. t^' 

demanded of one that flood by, Quis vituperavit f ad quod nonfoit 
refponfum. But now let us return to proxies. 

A lord of parliament by licence obtained of the qneen to be 
abfent, made a proxy to three lords of parliament, Conjun^im et 
dhifirn dans eh potejlatem traBandJ^ tradat'ihufque auxilium et con/ilium 
impendendi^ atque flatutis et or dhiationibus^ qua ina^itat'' contigerhit^ 
cotijentiemli, ha quod ncn Jit melior eondith occupantis. And one of the 
procurators s;ave confent to a bill, and the two others faid, not con- 
tent. And firft it was by order of the lords debated amongft the 
judges and civilians attendants, and conceived by them that this 
was no voice, and the opinion was affirmed by all the lords of 
parliament y?r/^//w. Another queftion was moved at that time, 
that if a lord of parliament make a proxy, and after come into the 
lords hoiife of parliament, and fit there without arguing, confent- 
ing or fpeaking any thing: and it was conceived by the judges 
and civilians, that this fitting there without faying any thing was 
a revocation in law of his proxy; a fortiori, if he moved, or fpake 
to any matter there propounded, and their opinion was refolved by 
'the lords faiatlm. And thefe were the proxies of the bifliop of 
Bathe, the lord Howard chamberlain, and of the lord Windefor. 

King John in the 1 3 year of his reign being in extream fear of 
both the pope and the French king, and efpecially of his own fub- 
jefts (and what is fear, faith Solomon, but a betraying of the fuc* 
cours that reafon offereth.?) fent ambafTadours to Adm.iralius Mur- 
melinus great empefour of Turky Sir Thomas Hertington and Sir 
Ralph Nicholfon knights, and Sir Robert of Londoii ckrk, nun- 
t'los fuos fecretijlmost to offer to be of his religion, and to make his 
kingdome tributary to him, and he and his fubjecis to be his vaf- 
fals, and to hold his kingdome of him. But that infideil great 
prince, as a thing unworthy of a king, to deny his religion, and 
betray his kingslome, utterlv refufed to accept. King John in the 
14 year (the next year) of iiis reign by his charter 15 }.iay, by the 
threats and perA\^afion of the popes commiffary Panduhhus fur- 
rendered his kingdomesof England and Ireland to pope Innocent 
the third, cum csmmu7ti conjilio haronum (as he inferred therein) and 
that thence forward he would hold his crown as feodary to the 
pope, paying for both the faid kingdomes icco. marks. Where- 
upon doing hoTiage and fealty to the pope by the hand of Pan- 
dulphus, and taking off the crown from his head furrendred it to' 
the pope by Pandulphus, at whofe feet he laid alfo the royall en- 
fignes, his fcepter, fword and ring: all which was a'terwcsrd ac- 
cepted, approved, and ratified by the pope, by his bull which was 
called Bidda awea. 

Gregcri-is papa petlit a rege E. i. per I'tterai annman ccnfum rooo 
■mere. Rex riifpoiidctfejine pralatis et procc^-'ibus regnimn prdjl: refponlere^ 
et quod jurejurando in coionationefoa fuit aflriSlus, quod jura regni fui 
ferrjarct illibata., nee aliqvid quod diadema tangdt regni ejafdem ahfque 
ipforum req^ijit" conjilio facer et. 

In anno 40 £. 3. the pope by his ambaflador demanded of the 
king homage for the kingdome of England and land of Trelaid, 
and the arerages of loco marks by the year, granted by 'king [ohn 
to pop- Innoceiv the third and his fucceiTors, ";^1 threatened that 1f 
it were not paid, the pope was refclved to proceed agait:!: the kir zv 
Whereupon the king in the fame yeair cailfjth bis court cf par- .- 

2, ' 7--H% 

Cap, I. The High Court of Parliament. J3 

mcnt, and in the bcc;inning of that parliament (faith the re- I have tliought 

cord) Fuit monfhe a Ics preiatrs, duhs^ countes, baronsy Us c/uva- ir'|J.*?,V"!« 

/•. '^..'»,T' » r t J icrioc It tn pro- 

t^rs Jti counties^ ahv^etn et bur^rjjcs en k prefcnce le toy per le ^^j^ jdionate. 

chsncelkry amatV Us avoicnt ent endue Us caufes lUl fummons del par- 
liament en f^enerally mrs la volume le toy fui/l que Us caufes feujfent 
monftresa eux en efpeciall ^ lew difo'tt content le roy avoit entcneiue (jue le 
pape perforce dun fait quel il dit que le rry Johan ffoit au pape de luy 
faire homage pur le realme d^ Efigleterre ft la terre d' frland ct que per 
caufe du dit hmage qil luy deveroit paicr chefcun an pcrpetuelmerj mi lie 
marcsy efi en volume de faire prcccs devrrs le roy et fon roialm pur le dit 
fervice et cms recovei'ir ; de qoi le roi pria as diis prelats^ dukrs, coumes 
et barons /avr avys ct bon confc'il^ et ce qil enferroity en cafe que le pape 
vorroit procc.ler devcrs liy^ oufon dit roialine per cclle caufe : ct Ics pre- 
lots requeroient au roy quils fe purroient per eux fcul avifer et refpondre 
lendemaiuy qucux prelatz. le dit Undemain adeprimcs pey eux mefmesy et 
puis Us autrcs dukes^ countes^ barons et gentz refpomlirent et difoient^ que 
le dit roy Johan ne nul autre purra mettre lui^ m: fn roialmcy ne fon 
people en tielc fuhiediou fanz affnt^it accorde deux : et Us communes fir f ^4 1 

ce demandi'% et avifez refpondireM en mefme le manere ; fur qui feu/l or' No king can put 
dtine^ et ajfcniu per commune ajjent en tnanere quevfuyt. En fe prefent himJelf nor his 

parUment tcnuz a Weftm' Lund y pro fchein apres la invention de lafeinte '■^^''"» '?^'' "'^ 
• 1 t • 7 T-> ; . •/ r 1 n J r- people, in facli 

croice Ian du reign le roy hdioard quarantfrne^ tant fir lejiat de finte mbjii^ion with- 

eglifcy come des droits de fon roialm et de fa corone 7noiy.tcniry entre out aircnt of the 

nutrts chofes e/ioient mmfircz coment ad efie parlee^ et dit que le pape per lords and com- 

force dun fait quele il dit que le roi Johan, iadis roy d' Engktcrrefefoit "^^"5 »" P"''^- 

au pape au peipctuite de luy faire homage pur le roialme Denglctcrre et la ^^^^ .'^ j^ lohn'' 

ttrre de Irland, et per caufe du dite hojuag- de luy rendre un annuel cens : ha.J done it by 

ad efle en volume de faire proceffe devers le roi pur les dit% fervices et the common 

cens recoverir ; la quele chofe monflree as preiats, dues, countes, barom, et councell of hi« 

la commun^ pur ent avoir lour avys tt bon confeiL ct demandee de eux ce ''^'^°"* ^^ "'^ 

1 . c r 1 • 1 • 7 charter purport- 

qe le rot enjtrra en cafe que le pape vorrcit proceder ou rien attempter de- ^ j ^^ [^ bound 

vers lui oufon roialme per celU caufe? Qucux prelats, diics^ countes^ barcns not, for that it 

et communes en fur ce plein deliberacion refponderont et dfoient dune ac- was not dene ia 

coide, que U dit roy Johan ne nul autre purra mettre luy ne fon roialme ne ^"^^^^^^^^^J 

fon people en tiel fubjcftion fanz affent de eux, et come piert per plufcurs \J^^^^ ^^^^ ^^^^^ 

evidences, que fi cefeuji fait ^ ce fettji fait fanz leur affnt, et encovtre fon jpons: and al- 

feiement en fa coronacion, et outre ce le dues, countes, barons, gents et com- bdt it might (a» 

munes accorderent ei grantercnt que en cafe que U pape Je afforceroit ou here it apprar- 

rien attempt eroit per troces, ou en auter manere de fait de confireindre le j''"» '^ cannot b« 

r r f a 1 r • n i- ,-i / 77 a- •/ donc Without 

rot ou Jes fibjetts de per fait ce queft dit q'llvoet darner telle par tie qils authority of par. 

refifront et contreefterront ove toute leur puiffance, liament) yet it 

This noble and prudent king took the faireft and fnreft way to is c^nra Ugtm 

give fatisfa<Elion, whereof the pope beine certified, the matter ever <^ corfuttutiinm 

fince hath refled in quiet. ^''i"T'!l^. 

J. T • I 1 1 I . 1 1 . . r 11 !• doe lucha thinf, 

* It IS declared by the lords and commons in full parliament, a, ^^ the next 

npon demand miade of them on the behalf of the king, that they record in 42 £. 

could not afient to any thing in parliament, that tended to the dif- 3- appearctb. 

herifon of the king and his crown, whereunto they were fworn. *^il. 

Sec hereafter in the cafe of Ireland. ^ZlJiio pZ '' 


Ltx ct dnfuetudo ParUamenti, 

By the ancient law, rnd cuftome of the parliament a proclama- 7 E. a. Utat, ^t 

tion ought to be made in Wcftminfter in the beginning of the •J'/'iAoT'-pa?. 

parliament, that no man upon pain to lofe all that he hath, (liould '"^""^ "'""- 

IV. Inst. C during 

tans, armtu 

14 The High Court of Parliament. Cap. i« 

a E. 3. ca. 3. during the parliament in London, Weftminfter, or the fuburbsv 
Ror. par. 6E. 3. ^(. wear any privy coat of plsLte, or goe armed, or that games or 
""■g j^y J other playesof men, women, or children, or any other pallimes or 

14 E.' 3.' nu. z' ftrange fnews fhould be there nfed during the parliament: and the 

15 E. 3. nu. 2. reafon hereof wjs, that the high court of parliament (hould not 
17 E. 3. nu. 3. thereby be difturbed, nor the members thereof (which are to attend 
j8 E. 3. nu. 2. jj^g arduous and urgent bufinefle of the church and commoij- 
25 E* 3^ ftat!" i^.' wealth) fliould net be withdrawn. 

nu. 58. 25 E. 3. * It is alfo the law, and cuflome of the parliament, that when 
fiat.2. nu.5.&c. any new device is moved on the kings behalf, in parliament for 
privy coa: or j^jg ^id, or the like, the commons may aufwer, that tliey tendred 

armour. ^.j^^ kings eftate, and are ready to-aid the fame, only in this new de- 
Games or plays. . & , ' . ' ^ ' . , -^ , . 
Rot. par. anno "^^^e th^y dare not agree without conference with their countries; 
13 L 3. nu. 5. whereby it appeareth, that fucli conference is warrantable by the 
& 8. law and cuflome of parliament. 

* See hereafter _^j^jj jj jg jq j^^ obferved, though one be chofen for one partis 
'** cular county, or borough, yet when he is returned, and fits in par-. 

liament, he ferveth for the whole realm, for the end of his com- 
ming thither, as in the wTit of his election appeareth, is generall,, 
ad faciendum et confentiendum hiis qua tunc et ibidem de co?mmini con- 
Jilio diSIi regni mftri (favefite deo) contigerint ordinal' i fupcr negotiis pra:- 
diRis. i. pro quibiifdam ardiiis et urgent ibus negoiiis nos, Jiatum^ et d:- 
fcnji'.nem regni noftri AngVue et ecclejics Anglican^^ concernentihiu^ which 
T L ^5 J arerehearfed before in the writ. 

^IrUaJenn *^"^ ^^ ^^^^'^ ^^"^^^ of juftjce hath laws and for its direc- 

IftaTex ab om- t'"^"? fome by f the common law, fomeby the civill and canon law,, 
nibus eft quEc- fome by peculiar lawes and cuftomes, &:c. So the high com-t of 
renda, a multis parliameuty^/x propiis kgibus et confuetudinibu^ fubjifit. It is * lex st 
ignorata, a pau- (^Q^jjuetudo parliamenti^ that all weighty matters in any parliament 
Fleca'^"ib^2. moved Concerning the peers of the realm, or commons in parlia- 
cap. 2. * * ment affembled, ought to be determined, adjudged, and difcufTed 

* Rot. par. II by the cou rfe of the parliament, and not by the civill law, nor yet 

R. 2. nu. 7. by the common laws of this realm ufed in more inferiour courts; 

^r u I A^ ^^"^^ which was fo declared to be fecundum lezem et confuetudlnem parUa," 
of the Inftituies, . . , ^ ^ . 1 '^ , , "^ , • 1,11 

fed 3. verb. En ^-^^h concernmg the peers or the realm, by the kmg and all the 

la ley. lords fpirituall and temporall ; and the like pari ratione is for the 

Rot. par. 2H.4. commons for any thing moved or done in the houfe of commons : 

""• ^^* and the rather, for that by another law and cuftome of parliament, 

the king cannot take notice of any thing faid or done in the houfe 

Rot. pari. 3 H. 6, of commons, but by the report of the houfe of commons: and 

M 'VJr"^^? ^^ ^^^''y rnem.ber of the parliament hath a judiciall place, and can be 

no witneiTe. And this is the reafon that judges ought not to give 

Rot.p3r.27H.6. ^^Y Opinion of a matter of parliament, becaufe it is not to be de- 

nu. 18. the earle cided by the common laws, hwi fccundian le<^em ct confuetudlnern 

of Arundels cafe, parlia/nenti : and fo the judges in divers parliaments have con- 

R , „ ^ fefled. And fome hold, that every offence committed in any 

nu" te^'^zj] 28.* ^^^^^'^ punilhable by that court, mufl be puniflied (proceeding cri- 

baron Tho'rps minally) in the fame court, or in fome higher, and not in any in- 

cafc. feriour court, and the court of parliament hath no higher. 
5 H. 4. nu. iz» Upon his petition exhibited to the king, wherein the queflion 

The earl of Nor- was, whether the power which be had raifed was high treafon, &c. 

thnmberlands which petition (faith the king) let be delivered to the juflices by 

"^* them to be confidered. Whereupon the lords made proteflation, 

q H^4° hidem ^^^^ ^^^ order thereof belonged to them, which was to them aU 

tiity des/cignwrs lowcd, and they refolved it to be no treafon^ 

et commons. And 

Cap. I. The High Court of Parliament. 15 

And becaufe we have a cafe in 3 E. 3. iq. concerning the law 
and cuftomc of parliament, we have thought good to fct t^own the 
record of that cafe ^/^ vrrh in wrbwrt, and then to examine the re- 
port of the faid cafe, and the opinion there delivered, wherein wc 
fhall defire the learned to confider well the ftatute of 5 R. 2. flat. 
2. cap. 4.. and thereupon to confider what (as that ftatute fpeaketh) 
hath been done of old times, &c. And Iionv that ad faith done, 
and not faid. 

yohfjnnes rpifcopus H^nion in mifcriconVta pro plurihus defaltis. Idem Pj^ch. 3 E. 3. 
Johnnnrs epi/ropus attachiat\fuit ad refpr.mV domino rcgi, de eo qtiare f°"^i r'^g«rot-9- 
cum in pnrViamento regis apud mvam Sanim nuper tetrt^ per ipfum dom':- j^-^j^ ^'^^^ ^^"^ 
ttum ngem inhihitum fui ffet ^ ne quis ad diflum parliamenfum fu?nmonitus was by writ 
ab eodfm recedeict jine licenc* regis: idem epifcopui durante parliaments original!. 
.preedid. ab eodem Jine iiQcntia regis recrj/tt in regis con temp turn manifcf- 
tum^ et contra iuhibitionem regis (iipradi^um. Et unde idem dominus The Jcclaratlon. 
rex per Adam de Fincham^ qui fequitur pro eo^ dicit^ quod pro'di^s 
JoJiawres epifcopus fcit ei tranfgrejf. et contemptum pradid. f r . in 
contempt, regis miiHe libratum. Et hoc off'i rt wri fie are pro domino rege^ idc. 

Et prcedidus epifcopus in propria pcrfona fiia venit^ et dffendit cmnem The plea of the 
contemptum et tranfgrejf. et quicquid^ ^c. et dicit, qucd iff. efl unus de bjfhop to the ju- 
pnribus re^ni, et pralatus facrof ecclefice.^ et eis in eji venire ad par Ha- «''''^'<^'on of the 
mentum domini regis per Jummonitir.ncm et pro voluntatc ipfius domini 
regis cum febi placuerit^ * et dicit^ quod fi quis torum deliquerit erga f l6 1 

dcminum regem in parliamento aliquo, in parliamento debet corrigi et ^ -^q^^ hoc 
emendari^ et non alibi in minor' cur' quam in parliamento : per quod non 
intendit^ quod dominus rex velit in cur'* hie de hujufmodi travfgr. et con- 
tempt, faflis in parliamento refponderi, tsfc. Etfuper hoc datus eJi eis 
dies coram rege a die fanfl^e Trin. in quiinlecem dies ubicunq; isfc, 
falvis rationibus. Ad quem diem prad. epifcopus renit in propria per- 
fona fua^ et datus eft ei dies coram domino rege a die f and i Mich, in 
15 dies uhicunq\ ^c. in eodem ftcttu quo nunc^ ^c. falvis tationi- 
bus fuist ^c. Ad quem diem venit pradid. Adam qui fqurtur^ 
^c. Et fimiliter fra:didus epifcopus m propria perfona fa. Et pra- 
diSlus Adam pro f^r^dido domino re^e dicit^ quod cum placcat ei par- 
liamentum fuum ienere pro utilitate regni fui de regali poteftate fua 
facit iUudfommonni ubi et quando, i^c. pro voluntate fua^ et etiamfacit 
proliiberi exiftentibus tunc ad parliamentum^ ne quis eorum abinde recedat 
eontra prohibitionem fuam^ tffc. abfq. licentia, ^c. Et fi quis eorum This is the alle- 
mbinde recedat contra prohibitionem, ^c, in contempt, regis, ^c. bene gation of the 
liceat ipfi domino regi fumere fedani erga hujufmodi delinqwntes in qua ^'"6» attorney. 
curia placcat fibi, ^c. Et ex quo dominus rex pro voluntate fua par- 
liamenta fua tt net, i^c. petit judicium pro ipfo dcmino re^i, fi idem do- 
minus rex duel dcbeat, feu compelU ad profcquend' i,i hac parte alibi 
contra voluntatcm fuam., ^c. 

Et pradiHus epifcopus dicit ut prius, quod cum aliquis deliquerit in The B. maln- 
parliamento, ibidem debit corrigi et emendari, t^c. et licet aliquis fum- f*'"' "is torrocr 

•. /r • »• , •^. • fr 1/ 11 plea tothtfjUfU- 

monitus ej/et irniendi aa pantamentum, tt non vemj/tt ibidem, debit ^^(x.qu.. 

puniri, per quod non intendit, quo d dominus rex velit a'-ibi^i efpondcri quam 

in parliamento, (iXc. Et fuper hoc datus eft eis dies ufq; in cra\ anima- 

rum uLicunque, Z^c. in eodem fiatu quo nunc, ^c. Ad quem diem venit 

tarn praedid. Adam, qui fequitur pro domino rege, quam pradid, 

efl copr.s in propria perfona fa. Et datus eft eis dit s coram domino rege in 

c^ctb. Sanfti Hilarii ubicunq. ^c, Jahis rationibus Juis, £sfr. Ad quem 

diem pradi^. epifcopus venit^ et datus eft ei di(s ulterius coram domino 

C z rege 

a 6 The High Court of Parliament. Cap. i , 

rege in oBah^ Fur. beata Maria uhicunq^ ^sSd Ad quern diem venii 
tarn fr< epij'ccpm^ quam 'Johannes de Lincoln' quifequitur pro do' 
mino rege^ et datus eft eis dies uherius coram domino rege a die PafchfC 
in quinque feptimanas ubiciinq\ ^c. Salvis rationtbus^ ^c. Ad quern 
diem 'venit tarn prc^d. epifccpus in propria perfcna fua^ quam pradi^, 
Johannes de Lincoln^ qui fequitur pro diSlo domino rege, ifSc. Et datus 
eft eis dies ulterius a die SanSli Michaelis in 1 5 dies ubicunq; ^c. falvis. 
Jibi rationibusfuis hinc in dicend^ &V. 
[17 4 And this is all that is in the record, whereby it appeareth that 

the plea of the biihop to the jurifdiftion of the court after divers 
dayes given did Hand, and was never over- ruled agreeably to the 
faid refolutions in former times, that judges were not to determine 
matters concerning the parliament, as is aforefaid. Touching the 
report of the faid cafe, thus far forth it agreeth, that this contempt 
cannot be punifhed in any other court than in the kings bench: fo 
as the queftion is only for that court. It appeareth that the reporter 
never faw the faid record, only took it by the care of that which 
was fpoken in court (a dangerous kind of reporting, and fubjeft to 
many raiftakings, for feldome or never the right cafe is but) as in 
this cafe it fell out. For firll:, where the record faith, that the par- 
liament was holden at Sarum, the report is of a parliament holden 
at Salop. 2. The report faith, that John B. of Winchefter was 
arraigned, which implieth that he was indi6ted, &c. where he was 
fued by originall writ. 3. The inhibition made by the king al- 
ledged in the record, is not in the report. 4. Concerning the 
iudden opinion of Scrope in this report : by his opinion the parlia- 
ment it felfe could not have punifhed this contempt : for he faith, 
Ceux q. font judges de parliament., font judges de lour piers, mh le roy 
nad my pier in fon teue demefn, pur q. il ne poet p. eux eftre judge^ 
donques ailors que cy ne poet efre judge, whereas without queftion the 
parliament might have puniflied this contempt : and concludeth 
with a rule at the common law, that the king may fue in what 
court it pleafeth.him. But matters of parliament (as hath been often 
faid) are not to be ruled by the common law : and it feemeth that 
the reft of the judges were againft Scrope, for th^ plea was never 
over- ruled, as by the record it appeareth. 

Vide per indidamenta termino Pafcha 1 &* 2 Fh. et Mar, coram 

rege rot. 48. Informations j5referred by the attorney generall againfi: 

39 of the houfe of commons for departing without licenfe contrary 

to the kings inhibition in the beginning of the parliament; whereof 6 

being timorous burgelTes ad redlmendam vexaiionem fubmitted them- 

felves to their fines, but whether they paid any, or very fmall, wc 

^"^M* ^ ^^^\ ^sve not yet found. And * Edmond Plovvden the learned lawyer 

inter pl'arr'eg^is* P^^^^ed, that he remained continually from the beginning to the end 

ct isginae. of the parliament, and took a travers full of pregnancy : and after 

his plea was^ff?^ die per demife le roign. 

If offences done in parliament might have been punifhed elfc- 
v;here, it fliall be intended that at jbme time it would have been 
put in ure. Vid. the firft part of the -Inftitutes, feft. 108. 

JSy^ow the faid informations an7io i & 2, Ph. and Mar. againft 39 of 

the houfe of commons follow in thefe words. Pafch 1 £i/ 2 Ph. and 

Sdw. GrlfSn, Mar. regis et regime, Midd. ^ msmcrand'^ quod Edzvardus Griffyn 

ar^ attornai^ domin. regis et regina generalis, qui pro eifdem doming 

rxge £i doTiiina regina fequitur^ 'venit hie in cur'' di^ormn daminorufn re- 

Cap. r. The High Court of Parliament. 1/ 

ghet regirt^ cormn ipfis rege et regina apuJ H^tftm' die Sahhathl proxtm^ 
jMift (jutnd' Pafclu ifto eoJcm termhiOy et dot cur' hie inteUiji et informari. 
Quod cum ad parliamcntum dominorum rc^is et retina nunc tent' apud, 
IVeJi' annis regnorum futnum primo et fee undo iMitum fult per ipfos do- Ir.hibitum fui?. 
mi Hum regent et dominant rc^nam in eodem parliamento^ quod nullus ad 
idem pariiament\fummonitus, et ibidem inter ejpnsy ab eodem pari lamcnto 
ahfque fpeciali licentia diflorum' dminorum regis et re^in/e^ et em' par- 
liament' prtcdifi' recederet^ feufeipfum aliquo modo ahfentaret. (luidam 
/amen TJiomas Denton de in com' Oxon ar' Henrictts Gary 

de in com* gent* Richardus Warde de in 

com' or' Edmund. Ploiudcn de Tybmerjlie in com, Berks ar- [ i8 ] 

mrger^ Henricus Chiverton de in com. ar.Rohertus 

BroTune de in com. "Johannes Courke de in 

com. Johannes Pcthebrige de in com. JoJiannes 

Melhewes de in com. Johan. Courtney de in 

com. Radulphus Michel de in com. Tliomas 

Mathew de in com. Richardus Brafey de in 

com. Tliomas MnJJye de in com. armig\ Pe- 

trus Frechwell de in com. miles. Henrkus Vernon de 

Sydbeyy in com. Da'hy armt^. Wlllielmus Moore de villa Derb. in com. 
Derb. gen. IVillieltnus Banibrigge de in com. Johannes Eve- 

high de in com. gen.'Nich. Adamts deDartrr.outh^aliasClif-' 

ionHarny; in com* Devon gen. Richardus Phdipps de in com. 

or. Anthonius Dylvington de in com. Andreas 

Hoorde de in com. Chrijlopherus Hoell de 

in com. Dorf. gen. Johannes Mannocke de in com. 

gen. Thomas Phelippi de in com. Johaxnes Hamond di 

in com. Johannes Plielipps de in com. 

Willielmus Randall junior, de in com Johannes Myne 

de in com. Hugo Smyth de in com. gen. Ro' 

gerus Gerrardde in com. gen. Radulphus Scrcope de 

in corn. gen. Thomas Moore de Hamhled. in com Buck. gen. WillieU 

mus Reade de in com. ar. Henricus Maunock de in com, 

ar. Joh. Maynarde de villa SanSli Albani in com. Hertf. ar. Nick. 
Dcbden de in com. gen. et PhiUp^us TirtvJyt de in 

com, af qui funimonitifuey unt ad parliamcntum., et in eodem 

parliamenlo co?nparuerunt^ ac ibidem intcrfucrunt mandat' et inhibitionem M2n<iatum et 
dominorum regis et regin^efutradid' parvi pendtntes, acjiatum reipublicts mhibhionem. 
hujus regni Avglia: minime cur antes aut ponder antes uojliafc'd. 1 2 die Ja^ 
nuarii annis regnorum di^orum dominorum regis et regin^e nunc primo 
et fiCundo fupradi^is^ et durante parliamento prcedi^o ab eodem par^ licentia didorum domir.orum regis et regina et curfutspns' 
did. contempfucfe recejfcrunt in ipforum dominorum regis et reginie ac - " 

mundat' et inhibiticnis fuorum pradiB' curicsq; precdlil. contempt' mani- , 
fefium^ ac in magnum reipublicce /latum hujus regni /ingli<:e detriment'^ 
nee non in pernicicfum exemplum omnium aliorum^ ^c, Unde idem at' 
iornatus doMinorurn regis et rcgin.^ petit advifamentum cur' in pramif. et 
debit' legis procejf. verf. eofdcm Thcmam Denton^ Henriaim Cary^ Ri* 
chardum IFarde, Edm. Plowden^ Hinricum Chivcrton^ Rcbertum 
Browne, Joh. Courk, Joh. Ptthybridge, Joh. M.lhe-iues, Joh, Courtney y 
Radulph. Michelk, Thomam Mathr.oe, Richardum Brafey, Thomam 
Ma£e, Pctrum Frechzvell, Hcnricum Fernon, VFill. Moore, tVilL 
Banibrigge, Joh. Evtleigh. Nich. Adamts, Richardum Pkelipps^ An- 
thmium Ddvin^ton, Andream Hoorde^ thrijlopkerum Hoell, Johannem 
Mamock^ Tkmam Phelipps, Johan. Hamond, Joh. Phelipps^ J^iUiel- [ I9 ] 

C 3 ftium, 

1 9 The High Court of Parliament. Cap. r , 

mnm Randall, Joh. Moyne, Hugonem Smithy Rogerum Gerrard^ Ra- 
dulphum Scroope^ Tho. Moore ^ IJ'^ill. Rtad^ Henricujn Mannock^ ^ohan, 
Maynardy Nicholaum Dehden^ et Phil. Tyrwhyt fieri ad itfpondend, do- 
mino regi^ et domime regin^e de contcfupt' pradifl. O^r. 
Mich. 3&4Ph, Et niodo fcil. die Veneris prox' pojl craji' animarum ijlo eodem termlno 
& Mar. ro. 36. coram domin. rege et domina regina apud IVejV vcn' pradiH. Edm. 
inter plac. regis pio-u:d-n per Andream TulTe.r attornatum fuum; et habit' audit' informa- 
et regmac. . . f „ »• » 1 • r • ;• 7 » • ; • 

tioms preedictte die , qmci ipje non intcndtt quod dommus rex et dominet 

regina nunc ipfum Edmtm' pro pnemijjis vel aliquo tr(£miJJoruin impetere 

feu occajionare 'velint aut dehent : Quia dicit quod ipfe ad diSV parlia- 

menf in informatione pradid^ /pccijicat' interfuit et pnefens juit^ ac in 

eodem parliamento continue re?nanjit^ viz. a principio ipjius parliamenti 

vfq; ad finetn ejufdem. Ahfq; hoc quod ipfe idem Edmund. Plcwden d'lSlo 

12 die Januarii^ an. primo et fecundo fupradi^' dur ant' parliament* 

pradt^' ab eodem parliament' Jine licentia didorum dominorum regis et 

regince^ et cur' futx praulid' confemptuofe recejjit in it forum dominorum 

Nota, tKe preg- ^cgis et regint^ ac mandat^ et inhihitimis fuorum pradiH:' cur ice q\ p^ad* 

nancy of this coniemp' manifejl* ^ ac in jnagnum reipublica ftat' hujus regyii Angliee 

travers. detrime?it'^ nee non in perjiiciofufn exemplum omnium aliorum modo \et 

bine le per e- j^Qy^y^a prout per informac' pradi^' veif, eum fupponitur. Et hoc pa- 

raius eft verificare prout cur. ^c. unde pet' judicium : et quod ipfe de 

pra;mijf. per cur' hie diniittatw\ ^c. 

Per deannis Midd. Ve. fac' Thomam Conflable de Grimfbye in com. Lincoln, ar. 

3 & 2 Ph. & Hen. Lcigh^ de in com. Franclf Farnliam de Querne 

Mar. Rot. 48. j„ ^.^^^ Leic. ar, Li. lo. Mic. 2 & 3 Ph. regis et Mar. reginae. Joh, 

Holcroft. fen. de in com. milit. Will. Bromley de 

in com. ar. Tho. Somerft de in com. ar. 

Georg. Ferrers de Marhyaf in com. Herif. gen. 'Nich. Potvtrell de Ex~ 
intlon in com. Nott' ^ ar. F. Hill. 3 & 4 Ph. k. Mar. Tho. Moyle de 

in com' Kane' milit. Tho. Waters de in com. 

.ar. Will. Tylcock de chit' Oxon' gen. Li. lo Hil. 2 & 3 Ph. & Mar. 
Tho. Balkden de IV^clyngleigh in com. Sur. milit^ Li. lo. Mig. 

2 & 3 Ph. & Mar. Maik Cradockde villa Staff, gen. Li. lo. Hil. 2 & 

3 Ph. & Mar. Georgium Lye de villa Salop, gen. Cell", proceff". per 
inandat' attornat' dominorum regis & reginae, quia iilterius profe- 
qui non vult verf. i})fum Geo. Lye. Joh. Hoord de Bridgejwrfh in 
com. Salop, gen. F. Mic. 5 & 6 i h. & Mar.. Jo//. A/fop de villa dc 
Ludlo^Y in com. Salop, gcji. WiL Laurence de civ. Wintoji- gen. Li. lo. 
Mich. 2 & 3 Ph. & Mar. Robert Hudfon de civ. Winton gen. Li. lo. 
lit antea. Edm. Roivfe de Donwich in com. S?iff. ?nil. Rob. Coppinge dc 
Dcnivich in com' Srff. ar. joh. Harm an dc hofpicio dom. regis et dom. 
i€gin<£ gen. Will. Cro'tvch de Wdloive in com' Somerf. ar. Tho. Levies ck 

f 20 3 villa de VFels In com' Somerf gen. Li. lo. Hil. 2 & 3 Ph. & Mar. WiL 

Godiiyn de Wels prad' in com' Somerf gen. F. Mich. 3 & 4 Ph. Zc 
Mar. Joh. AJkburnham de AJliburnham in com' Suff. ar. Li. lo. Mic. 2 & 
3 Ph. & Mar. Walt. Reyncum de civ Cicef in com" Suff. gen. Li. 
lo. Tr. 2 &.3 Ph. & Mar. Wll. Moody ere de Slindon in com' Suff. gen, 
F. Tr. 4 & j; Ph. & Mar. Joh. Roberts de in com' Stiff, gen. utlegat. 
l5c. y/il. Pellet de Steininge in com' Suff. gen. F. Pafch. 2 & 3 Ph. & 
Mar. Rich.Boivyer de Arundell in ccjn' Si{j]\ gen. Li.lo. Mic. 3 & 4 
Ph. & Mar. Will. Danby de in com. Wepnerl. gen. Rob, 

Gnffyth de civ' Nov^e Sarum in co?n' Wilts, draper, Li. lo. ut iiipra. 
Joh. Hooper de civ. Islova; Sarum in cc?n' Wilts^ gen. Li. lo. Mic. 2 &c 
3 Ph. & ?-Iar. Wd. Clark de in com. Grif. Curtys 


Cap. r. The High Court ot Parliament. 20 

<ie Br ad flock in com' JVilts ^en. Li. lo. ut fupra, &:c. Tho. I Hi Je 
Dcnxfes'mcom. irUts gen. F. Ilii. 2 & 3 Ph. & Mar. Kdio. Umytm 
Jc London ^cn. Li. lo. Mic. 2 &: 3 Ph. & Mar. Tlio. Parker de 

in com* Joh. Reade de London gen. Y. Hil. 2 & 3 Ph. & 

Mar. Arih, Aden de civ' Erijlol mrrch. tgtd. Pajne de civ. BripL 
gen. If a. Homfjhire dc London gen. Li. lo. Mic. {^ 4 Ph. & Mar.f/ CcflT. proccff. 
P€t. Tayltr dc Murlboro-M in com' Jillts, tnylor. Li. lo. Mic. 3 & 4 vcrf. Gccrgium 
Ph. & Mar. rcfp,iegi de quibujdam tranfgrejf. ct contempt, unde im- W* die er d 
fteht* fimt. m\{t. Ic Roync. 

Mid. Fie. fac' cr' Tf in E.Iw. Braxdende civ' JVigorn. gen. Georg. p^^ ^^^^^^ ^^^^•, 
Ne^ficrt de Droitzvich in com' fVigorn. gen. WiL Wigjicne de Wolftone ^^ ^j.J,jj ^^ ^ 
in com* Jfar. mil. Li. lo. Mic. 2 & 3 Ph. & Mar. 'Radulph. Brnvne ph. and Mar. 
de If'oodloivesin com. ^Far.grn. Li. lo. Mich. 3^4 Ph. & Mar. ^Ji. rot. 48. 
Harforde dc civ' Coveut. gen. Celf. proccll'. &c. Nich. FryJIte de 

in com' Rich Rayleton de in com. Marc, 

Jfyrley de civ. Lichfield^ gen. ff^a/t. Johfon de villa de King/l.n futer 
HulL Jac. Brenne de in com. gen. Joh. Payfon de 

in com. Kane. ar. Joh. Cheney de in com. Kane, 

armigerum If W id mum Oxenden de in coin. Kane, arrfli- 

gaiim. Iho. Ktys de in com. Kane. gen. IVil. Hannington dc 

in com, Kane. Joh. Tyjfurs de in com. 

Nich. Cryffe de in com. Kane. ar. Edio. Htrhsrt de Sta'ujley 

in com. Salop ar, F. Hil. 4 & 5 pra:d. Ph. & Mar. &c. Rich. Lloyde 
de in ccm. Kane. gen. Joh. de Knylle de in com. 

ar. Hen. Jones de in com. mil. Meredith Gaines 

de in com. gen. et Rich. Bulkelty de in com. 

mil. ^cfp' ^cgi de quibujdam tranfgr. et contempt, unde 

impetit' funt. Et pojlea^ fed. teiminofand. Trin. annis 4^5 Ph. td Non prof. vcrC 
Mar. pro eo quod fufficienter hie in cur' teJUitum ejl quod pradid. Joh. Harford tanium. 
Harfcrd habuit licentiam recedere a parliamehto. &V. Ideo Ediv. Grif- 
fyn ar. atiotnat. dominorum regis et legina; general: s qui pro ipjis rege 
€t regina in hac parte fequltur., dicit quod ipfe vlterius in hac pane verf. 
pra-fatum Jch. Harford p7ofequi ncn vult. Ideo ccjf hie. procejf. verf, ^^t die per de- 
•um omnino^ C^c. mife Ic Rojnr. 

And to deal clearly, this is all that we can find concerning this [ 21 ] 

matter. Thus you may obferve, that the poor commons, mem- 
bers of the parliament, in diebus illis, had no great joy to continue 
in parliament, but departed. But now to proceed. 

Of Writs of Error in Parliament, 

If a judgement be given in the kinjjs bench either upon a writ of Thehoufc of ^ 
error, or otherwife, the party grieved may upon a petition of right the lords isadi- 
made to the king in tnglllh, or in French (which is not ex dehito jufli- "'"^. '^^'li*"/ 
/:^, out tor decency, for that the former jadgement was given co- jiE. 3. fo. 3. 
ram rege) and his anfwer thereunto, fat jufitia, have a writ of error Regift. 17. lib. 
directed to the chief juftice of the kings bench for removing of the Imr.Raft. 184. 
record in prcfjens pa) liamtntum, and thereupon the roll it felt, and a 
tranfcript in parchment is to be brought by the chief juftice of the 
kings bench into the lords houfe in parliament: and after the 
tranfcript is examined by tlic: court with the record, the chief juf- 
tice cani th back the record it felf into iht: kings bench, and then 
tbr plaimile is ro aflign the errors* and thereupon to have a fcire 
fac' againft the adverle party, returnable either in that parliament, 
or the next ; and the proceeding thereupon fliail befnptr unorcm re- 

C 4 €ordi^ 


Rot par. poft 
feftum SandU 
HiJ. anno l8 E.I. 
rot. 8. 

Rot. par. 4 E. 3. 
jia. 13. Rich, 
earl of Arundels 
cafe. lb. 28 E. 3. 
iiu. II, 12. Mor- 
timer earl of 
JWarclies cafe. 
See Pafch. 
a8 E. 3. coram 
regeroc. 37 Wi- 
gorn. the fame 
cafe. 33 H. 8. 
ca, 20. 29 Eliz. 
ca. 2. rot. par. 
7 R. 2. nu. 20. 
S R. 2. nu. 14. 

nu. 15. SirTho- 
mas Methams 

Rot. par. 5®E.3. 
iia. 48. 


^ Rot. par. 
15 R. 2. nu. 23. 
,& 18 R. 2. nu. 
3^1, 12, 13, 14, 
jE'5. This par- 
liam. of 18K. 2. 
IS not mentioned 
in the printed 
book, bccnufe 
no a6t pafled at 
this parliament. 
See 2 H. 4. 
nu. 40. 

The High Court of Parliament. Cap. r^*- 

eord':^ et mn /uper recordum. All this, and many mare excellent 
matters of learning are contained in the records following; whereof 
a light touch is hereafter given, the records at large being too long 
here to be rehearfed. And the proceeding \ipon the writ of error is 
only before the lords in the upper houfe. Secundum legem et confuchi- 
dinem parliament i. 

Queritur Guilidmus de Valencia contra concilium re^is, i. Jufiic^ co- 
ram rege^ pro injufto judicio tan^en^ alloc ationem Dionijia: filia GulUelmi 
demonte Canifo ut hared^ : Jed dominus rex ratum hah^t eorum fa^um^ et 
judicium rcdditum ejl contra Giiilielmum de Valencia. 

If a nobleman had been erroneoufly attainted of treafon, &c. he 
might have had his writ of error in parhament, notwithftanding 
the ftatute of 33 H. 8. ca, 20. for that muft be intended of lawful! 
records of attainder : but if the attainder be eftabliflied by autho- 
rity of parliament, then he mull exhibite his petition in parliament 
to be reflored of grace. But now by the flatute of 29 El. ca. 2. 
it is ordained, that no record of attainder of high treafon that then 
was, for the which the party attainted had been executed for the 
fame treafon ihould be reverfed for error : but this extendeth only 
to attainders of high treafon, and not to any attainder of high tiiea- 
fon after that ad, nor to any high treafon before, for the wliich the 
party was not executed. 

The prior and covent of Montague by their petition declare, 
that Richard Seimour had obtained an erroneous judgement againft 
the faid prior in the kings bench, upon a judgement given in the 
comm.on place upon a fine for the mannor of Titenhull in the 
county of Somerfet, &c. And the princi[rall error was for denying 
©f aid of the king where it was grantable, and that hanging a 
writ of rigxht, the faid Richard fued 2.fche fac. And command^ 
ment was given to the chancelor of England, that he fliould 
make a writ of poiTeiTion nnd feifon to be had, and other procefle 
upon that judgment to be made : in this record you ihall obferve 
excellent pleading. 

Error in parliament upon a judgment in an appeal of death upon 
an acquitall of the defendant,, and inquiry of theabettoi's, &:c. 

And (that we may obferve it once for all) when one fueth in par- 
liament to reverfe a judgement in the kings bench, he flieweth in 
his bill which he exhibiteth to the parliament fome error or errors,, 
whereupon he prayeth zfclre facias. 

The bifliop bi Norwich iheweth that an erroneous judgment 
was given agaiufl: him in the common place for the archdeaconry 
of Norwich belonging to his prefentation, and prayed that thofe. 
errors might be heard, and redreiTed there : whereunto anfwer was- 
made, that errors, by the law, in the c mmon place are to be cor- 
rec1:ed in the kings bench, and of the kings bench in the parliament- 
and not otherwife. 

I R. 2. nu. 28, 2g. 2 R. 2. nu. 31. A writ of error in parlia- 
ment between William Mountacute earl of Sarum, and Roger of 
Mortimer earl of March of a judgment in the kings bench. 

* The dean and chapter of Litchfield recovered in the common: 
place againft the prior of Newport Pannel : the prior by writ 
of error reverfeth the judgment in the kings bench : the dean anji 
chapter by writ of error in parliament reverfeth the judgment m 
the kings bench, and affirmeththejudgnaent in the comrfion'place. 

Cap. I . The High Court of Parliament. 22 

and a commandment given to the chancelor, that the judgement in 
the common place be executed by proccflc by him to be made. 

^ John Sheppy complains of a judgement in the kings bench in «> Rot. par. 
£ writ of error. 15R.2. nu.xi. 

* Error in parliament between William Mountaciite earl of ^ziR.i. no.a5, 
Sali(bury, and Roger de Mortimer carl of March, for the caftle, » H. 4. no. 15, 
town, and honour of Dcnbeigh, &c. upon a judgment given 
in the kings bench, and had a /cite fae* returnable the next par- 

•* William Seward alias Cheddre complaineth, that where he by d Rot. par. 
that name was prefcnted and induced to the parfonage of Wotton i K. 4. nu. 91. 
Under Egge in the county of Glouc', and thereof continued the 
pofleffion by the fpaceof four years, untill the king by untrue fug- 
gellion prefented Sir John Dawtry to the parfonage of Underhegge 
in that countv, where there was no fiich parfonap;e called Under- 
hegge, as the faid William pleaded in a quare imped' t brought by the 
king in the kings bench ; upon which writ the king recovered by 
the default the parfonage of Underhegge, and not Under Egge, 
whereby upon a writ fent to the bifliop of Worceller, the faid Wil- 
liam was put from his parfonage of Under Egge : for which mif- 
takingand error, the judgment for the faid John in full parliament 
was reverfed, and a writ awarded to the faid bifliop for the reftitu- 
tion of tlie laid William. 

The record and judgment given in the kings bench for the king, R<>tpar. i5R.t. 
againft Edmond Balfet for certain lands, &:c. was for divers errors ""-M-^^iH.^ 
reverfed in parliament, and reflituticn of the premifles with the ""' ^ * 
mean profits reftored to the faid Edmond. 

In error in parHament between Roger Deyncoiirt, and Ralph de 5 H. 4. nu. 40. 
Adderlye for a judgement given in the kings bench for the manner 
of Anflye in com' Warr'. Sir William Gafcoign chief jultice deli- 
vered a copy of the record and procefle, word for word, under his 
hand, &c. to the clerk of the parliament, &c. 

In error in parliament between Richard Quatermayns and Wil- Rot par, 3H. $> 
lam Hore, &c. upon an erroneous judgement ^iven in the kings ""• ^■ 
bench in an acftion of trefpafle, and the plaintif entred his atturny 
of record to proceed therein. 

John Beauchamp lord Abergaveny complained in parliament Rot.par. 10H.6. 
upon an erroneous judgment given upon a verdid in the kings nu.5i.& 11H.6. 
bench in 2i fcirc fac* upon a recognifance in the chancery for keep- ""• '♦°' 
ing the peace. In the record whereof are excellent points of 
learning, as well touching the recognifance, as the procefle, and 

Error in parliament, Pafch. 31 H. 6. upon a judgment given Rot.par.3iH.6 
in an aflize in the kings bench, et intmtur fuper marginenty rot. mit- 
tifur in parliamcntum per Joharmen Forte/cue termim Pa/chte anno 
31 H. 6* 

And to- omit many others, to defcend to fome of latter times, Ror. par. 23 EI. 
Richard Whalley recovered in aflife by verdict againfl divers te- Dier 23 El. 
iiants, who brought a writ of error in the kirrgs bench, where the ^- 373- 
judgment in the aflife was aflirmed, the tenant complained in parlia- 
ment for error in the kings bench. 

Error in parliament upon complaint of Sir Chriftopher Heydon Rot.par.iz^ac 
knight of a judgment in a writ of error in the kings bench, between ^ 

the faid Sir Chriflopher plaintif, ani Roger GodfSve and others de- 

2^ The High Court of Parliament. Cap. r * 

fendants, upon a judgment given for the faid Roger, &c. againfl 
the faid Sir ChriftOpher in an aflife b^re juftices of aifife, wherein 
the judgement in the affife was affirmed in the kings bench, whereof 
the complaint was made, fed nonpravaluit. 
In cafe of trea- A peer of the realm being indided of treafon, or felony, or 
jbn, &c. the mifprifion of treafon, may be arraigned thereof in parliament, a 
makethe'ir'proc- ^'"^ fteward being appointed, and then the lords fprituall fliall 
tors. The peers make a procurator for them ; and the lords, as peers of the realm, 
arc judges of during the parliament are judges, whether the offence be treafon, 
treaion, &c. dii- g^^. tliat is fuppofed to be committed by any peer of the realm, 
''"^t^^&r"^'"*' ^"^ "°^ ^^^ juftices, as it appeareth in the earl of Northumberlands 
Rot. par. sH.4. ^^^^> '^o^* P^'''- f) H* 4* "^* ^ ^? ^^' ^^^ ^'^ ^'^^ parliament holden 
nu. II, li. 21 R. 1. fiib titulo FL Coronce, in a roll annexed, &c. before the 

Rot.par.aiR.z. fleward of England and other lords temporall, Richard earl of 
fubtitPlac. Co- Arundels cafe. Rot. pari. 31 H. 6. nu. 49. Thomas earl of De- 
Rot** aftiH 6 ^^^^ ^^^ arraigned of high treafon before Humphry duke of Buck* 
nu.ig. fteward of England hac vice, and was acquited by his peers, 10 E. 

4. fo. 6. b. Stanf. Pi. Coron. 153. b. 

Of Judicature* 

Now order doth require to treat of other matters of judicature 

. Vide placita jj^ ^^^ \oxAs houfe, and of matters of judicature in the houfe of 

anno^33^E* i. commons. And it is to be known, that the lords in their houfe 

rot. 33. Niciio- have power of judicature, and the commons in their houfe have 

laus Segrave ad- power of judicature, and * both houfes together have power of 

judge per prae- judicature : but the handling hereof according to the worth and 

barones et^alS ^'^^g^t of the matter would require a whole treatife of it felf ; and to 

de concilio. At ^^7 the truth, it is beft underllood by reading the judgements and 

the parliament records of parliament at large, and the journals of the houfe of the 

at York anno lords,and the book of the clerk of the houfe of commons, which 

12 E. 2- C'o«A- jg ^ record, as it is affirmed by ad of parliament in atmo 6 H. 8. 

deratum ejt per , ^ J tr 

pralatrjiy comites, ^^' ^"* 
baroneiy et com' 

munitatem Angl'ta* The lord Awdeleys cafe. At the par), at Weftm' 15 E. a. Hugh le pier ad- 
judge per les felgnours et commons. Rot. pari. 4a E. 3. nu. 20. Sir John at Lee adjudged by the 
lords and commons. Rot. pat. 50 E. 3. 2. parte, A pardon to the lord Latimer of a judgement in 
parliamant. Rot. pari. 50 E. 3. nu. 34. Lo. Nevils caie. 

See Rot. clauf. i R. 2. m. 5. 8. 38, 39. A trefage councell le roy\ 
les feigniors et comjnons^ ^c. Rot. pari. 1 H. 4. nu. 79. it is no a6t 
of parliament but an ordinance, and therefore bindeth not in fuc- 
ceffion. Rot. par. 2 H. 5. nu. 13. error alfigned that the lords 
gave judgement without petition or aiTent of the commons. Rot^ 
par. 28 H. 6. nu. 19. and many others in the reign of king H. 6. 
king E. 4. 

And of latter times, fee divers notable judgements, at the profe- 
cution of the commons, by the lords at the parliaments holden 18 
and 21 Jac. regis^ againft Sir Giles Mompeffon, Sir John Michel^ 
vifcount S. Albone lord chancellor of England, the earl of M, 
lord treafurer of England, whereby die due proceeding of judica- 
ture in fuch cafes doth appear. 



Cap. I . The High Court of Parhamcnt. 

Thomas Long g.ivc the maior of Wcftbury four pound to be 
ele<5^eti bnrgefTe,' who thcrciiiMjn was eledcd. This mntrcr was 
examined and adjudged in the houfe of commous, /rcufu/nm Ifgem 
(t confuetudviem parVtamenii^ and the niaior fined and imprifoned, and 
Long removed : for this corrupt dealing was to poyfon the very 
fountain it felf. 

Arthur Hall a member of the houfe of commons for publifliing 
and difcovtring the conferences of the houfe, and writing a book 
to the difhonor of the houfe, was upon due examination, yf<raW«w 
legem et confuetudinem pari: amentia adjudged by the houfe of com- 
iDons to be committed to the Tower for fix months, fined at five 
hundred marks, and expelled the houfe. 

Mun^lon ftroke William Johnfon a burgefle of B. returned into 
the chancery of record, for which upon due examination in the houfe 
of commons, it was rcfolved \\\:xt fecuntlum legem et cojifuctudinetn 
pafliamenti^ every man muft take notice of all the members of the 
houfe returned of record at his perill : but otherwife it is of the 
fervant of any of the members of the houfe ; for there he that 
ftriketh, &c. muft have notice. And the houfe adjudged Mun<flon 
to the Tower, &c. 

If any lord of parliament, fpirituall, or temporal!, have com- 
mitted any oppreflion, bribery, extortion, or the like, the houfe of 
commons, being the generall inquifitors of the realm (comminsj 
out of all the parts thereof) may examine the fame, and if they find 
by the vote of the houfe, the charge to be true, then they tranf- 
mit the fame to the lords with the witneffes and proofr. 


In the book of 
the houfe of 
commons it the 
parliament hol- 
drn 8 Elir. 
Ipcalccr. fo. 19. 

23 El. lib. fo. 14. 
Fopham atturny 
geaerali fpcuker. 

lb. i. April)*, 
1 Mariae. 
Vid. 1 1 H. 6. 
c. II. 5 H.4. 
ca. 6. 


See Rot. pari. 
8 H, 6. nu. 57. 

Pnviledge of Parliament, 

And now after judicature, let 11s fpeak fomewhat of prlviledge 
oi parliament ; experience hath made the priviledges of parlia- 
ments well known to parliament men, yet will we fpeak fomewhat 

Mag'ijier militia Templi petit quo J dijtringat (cat alia unius dt con- 
ciiio) tetnpcrte parliament i pro redditu unius domus in London : rcM tC" 
fpondet^ non viditur honcftum^ qmd illi de concilio fuo diftiirparJur tern" 
pore parliamcnii^ fed alio te7npore, i^fc. Whereby it appeareth that a 
member of the parliament flial have privlledge of parliament, not 
only for his fcrvants, as is aforefaid, but for his horfes, &c. or other 
goods difireinable. 

Querela Comitis cor nubile ^ verfus B'gonem de Clare et pfioremfanHa 
Trinitati: London, quod ipji tempore parliamenti ipfum comitem in medio 
aula Wejlm^ ad procurationem ipjius Bogonis citaverunt, quod compareret 
coram archiepifcopo Ca?ituar\ ^c. Ipje prior venit et Bogo Jimiliter^ et 
ponuntfr in gratiam, mifericordiam, et voluntatem regis de alto et haj/i, 
ob quod mandantur turri London : pojlca venit didus Bogo et finem fecit 
dotnino regi pro pradida traufgreffiore per duas mille marcas, ^c. et 
quoad pr a did' comitem refpondeat comiti lOOO. //. pro tranfgreJJIone Jtbi 
fad\ ^c. et prad'dus prior mittitur ibidem ad faciend' fecundum quod 
thefaurarius ei dicet ex parte dni. regis. 

^ And yet the ferving of the faid citation did not arred, or reftrain 
his body, and the fame prlviledge holdeth in cafe of y;^^ pcena, or 
other procelfe out of any Qourt of equity. 


Vide inter leges 
Edw. ConfelT. 
c. 3. 

Pctitinnes coram 
domino icge ad 
parliament' poll 
feitum San^ 
Mich, anno 
x8 £. I. to. 7. 

Plac. coram rege 
ec ejus concilio 
adparliam. luum 
poit leftum 
San^i Hil. anno 
18 E.i. loJ. I. 
Vide inf. 10 E. 3, 
more hereof con- 
cerning itivkti^ 
of a citation 


Rot. parllam. 
anno 8 E. 2. in 8E.a. 


In Scacc' ex Ori- 

g'lnali de anno 

10 E. 3.. ro. Z7. 


• That Is, in 

court of parlia- 


This John de 
Thorefby was 
then clerk of the 


* Rot. pari, 
anno 17 E. 4. 
nu. 36. 
Vid. 21 £•4- 
fol. 3^» 39- 
Rot. pari- anno 
8 H. 6. nu. 57, 
Vide inf'3' P** 

The High Court of Parliament. Cap. ta 

Pex mandavit jujiiciariis fuis ad ajjifas^ jurat', ^c. capknd. af- 
Jignat' quod fuperfedeant captioni eorunde.?n uhi comites^ bar ones et alii 
fummoniti ad parliamentum regis funt partes, qiiamdiu diSlum parliam. 

De non procedendo ad capiend* ajpfas verfus illos^ qui ad parliamentum 
regis apud Eborum venerunt. 

Rex omnibus balivis et fidelibus fuis ad quos, ^c. falutem. Sciatis^ 
quod cum curia nojira in quibus * negotia rcgni nnjlri 'dedecantur ubiq; 
adeo liberie Jinf et exempta^ et a tempore quo non extat memoria li- 
bera et exenipta fuerunt^ quod nee aliqua forum ecclefiaficum concer- 
nentia in elfdem curiis nojiris fieri feu exequi, nee aliqui eafdem curias 
nojiras ad aliqua forum ecchfiaficum contingentia faciendum vel exe- 
quendum ingredi debeant^ 'vel confueverunt aliquihus temporibus rctroa^is^ 
ac magifter Henricus de Harewedon clericus, Edmundus de Lukenore et 
Johanmis de WedUngburgh de eo quod ipfi nuper in cancellaria nofira in 
prafentia •venerabilis patris I. Cantuarienfis archlepifcopi cancdlarii 
nofiri quafdam citationes five monitiones dileSio clerico nojiro Johanni de 
Thorefby^ ne non provocationes^ appellationes et irfirumenta publica fuper 
citationibus feu monitionibus pradiSlis in nofiri contemptum et corona 
nofira ac regies dignitatis nofira prajudicium^ et contra lihertat'Cm et 
exemptionem pradiSV fecerunt per inquifitionem in quam fe inde in curia 
nofira coram dile^o cancellario nofiro et aliis de concilio nofiro pofuerunt 
convict fuijjent et ea occafione prifona noftra mancipati in eadem ad 
voluntatem nofiram moraturi, Nos de gratia' nofira fpeciali ad requifi- 
tionem Philippa regina Anglia confortis nofira chariffima perdonavimus 
eidem Henrico,, Edjnundo et Johanni imprifonamentum pradiSlum ; ita 
tamen quod nobis fatisfaciant de redemptiojief/a occafione pramifforum^ et 
quod fuper citationibus ,, monitionibus,, provocationibus,, appellationibusfeu in- 
ftrumentis pradiHis in di^a ^cancellaria nofira fie fa^is proceffum all- 
quern nonfaciant,, nee quicquam quod in nofiri vsl juris corona nojlra pra- 
judicium cedere pofft attemptent vel attemptare faciant de catero quovis 
modo* In cujus^ ifSc. Tefie rege apud turrim London 1 5 die Aprilis, 
ex originali de anno 10 E. 3. Rot. 27. Not, 

* Priviledge of parliament in informations for the king, generally 
the priviledge of parliament do hold,ualefle it be in three cafes, viz, 
treafon, felony, and the peace. 

Of Statutes^ or Asis of Parliament, 

a Vid. 14 R. 2 
nu. 15. & 13 
p. 4. nu. 25, 

There is no a6l of parliament but mufl have the confent of the 
lords, the commons, and the royall aCTent of the king, and as it 
appeareth by * records and onr ^ books whatfoever pafieth in par- 
4 H. 7. i3. b, liament by this threefold confent, hath the force of an a6l of par- 

The difference between an aft of parliament, and an ordinance 
in parliament, is, for that the ^ ordinance vvanteth the threefold con- 
fent, and is ordained by one or two of them. 

p. touts les juf- 

tices. 7 H. 7. 


47.3. Biook 

prerogative 134. 

Fortefcue fo. lo. 

cap. 18. Dier 

I Mar. 92. ^ Rot. pari, 25 E. 3. nu. 16. &c. 39 E. 3. t2. 22 E. 

4. Mar. 144- 39 ^' 3- 7- Thorp male erravit. Rot. pari. 37 E, 3. nui 

between acts of parliament and »rdinaa<:es. 2 R. 2,, flat, 2. nu. 28. 

3. 3. 8 H. 6. cap. 29. Dier 
39. J R. 2. nu, 56. diverfitjr 

I have 


Cap. I . The High Court of Parliament. 25 

*I have read of a rcftitution in blood, and of lands of one ""isH«. 
William dc Lafciiby by the king, by the afHtnt of the lords fpi- 
rituall, niid coimnons, '(omittinj^ the lords tcin])orall) this we hold 
is an ordinance, amfno a<^ of parliament. And wJien the clergy 
is omitted and the a^l made by the king, the lords tempcrall, and 
commons. See the rols of parliament and authorities following, 
viz. Rot. pari. Pafch. ' 15 E. 2. the cafe of the Spencers. 3 R. 2. « Repeal i E. 3. 
cap. 3. in print; Our foveraigne lord by the common confcnt of <^=»P- ^- ^^f- »• 
all the lords temporall, and at the petition of the commons, &c. ' J.^' 3- ^'^ P«- 
7 R. 2. cap. 12 accord. 1 1 R. 2. nu. 9, 10, 1 1. See i H. ;. c. 7. SecRot.par. an. 
^21 R. 2. nu. 9. & 10. 6 H. 6. nu. 27. 7 H. 8. Kelw. 184. the 1 H. 4. part 5. 
opinion of the juftices agreeable with the laid ads of parliamenL m. 36. the Ifle 
And note the mutability in this particular cafe of the Spencers, of °^^^" ^7^"/° 
this high court of parliament. The judgement by parliament in \^^^^ ^^^^ J^^j^ 
15 E. 2. againft the Spencers, was in the fame year by i£t of par- and commons, 
liament repealed: that repeale was repealed by authority of par- f Repeal. iH.4. 
liament in i E. 3. that repeal of i E. 3. was repealed by a6t of cap. 3. 
parliament in 21 R. 2. and that of 21 R. 2. was repealed by au- 
thority of parliament in i H. 4. And fo the judgement againft 
the Spencers ftandeth in force. 

The Dlvifion of JSfs of Parliament, 

Of a<^s of parliament fome be introduflory of a new law, and 
fome be declaratory of the ancient law, and fome be of both 
kinds by addition of greater penalties or the like. Againe, of afls 
of parliament, fome be general), and fome be private and particu- 
lar. All ads of parliament relate to the firft day of parliament, if 33 H. 6. fol. 17, 
it be not otherwife provided by the ad. 

, The fever all Formes of ABi of Parliament. 

In ancient time all ads of parliament were in form of petitions. Dler3.Mar,i3f. 

And for the feverall forms of ads of parliament, fee the princes ''^- ^- ^°- ^ *"« 

cafe in the 8 book of Reports. Now for the reading, comtnittine, ?T'""^ "^*^*. 

amendmg, mgrofling, votmg, and paffing of bils m either houfe, ingroffin^lft' 

and touching conferences with the lords, and for the priviledge of rohof a<5s«f 

any member of either houfes, and of their fervants more then hath parliamcnr. 

been faid, they be fo ordinary and well knov/n, and in fuch con- R0r.parl.7H 4. 

tinuall pradice, as it were but expence of time to treat any more """ ^" 
of them. And for that many times the rols of the parliament 
have not been truly ingrofled, at the reqqert: of the commons cer- f 26 1 

tain of them are to be appointed, who Ihould be at the ingro fling 
of the rols of parliament. 

In former Times Acls of Parliament were proclaimed by the 

When I read the cafe of premunire in 39 E. 3. upon the flatute 
of 27 E. 3. of provifors again!! the bifliop of Chichcfter, and ob- 
fervino that ferjeant Cavendilh of counccll with the biHiop ob- 
JeAcd two things: firft, that the ad whereupon the writ was 



John jlToere. 
Printing was in- 
vented in Mcath 
in Germany, an- 
no domini 1441. 
and came to us 
in the raign of 
H. 6. SeeBodin 
De Methocio hi- 
itoriae. II. 7. Una 
rypograpbia cum 
cmnibt'.s omnium 
Kjeterum in-uentis 
certare facile po- 
tejl. Polyd'.r 
Virn^il ae 'wvent. 
rerutn lib. 1. 
sap. 7. Cardan, 
de njanetate re- 
rum lib. 3, 
£ap. 64. 

At theparlia- 
jTiCnt in aniio 
loE. 3. 

* Nota that the 
cujlcdiam corn- ■ 
talus, fn'jnld fee 
jn his county to 
be kept. 

At the pirlia- 
'ftUaii. i. R. 2. 

The High Court of Parliament. Cap. i . 

grounded, was no ftatute. Secondly, that if it were a ftatnte, it 
was never publifiied in the county : whom Sir Robert Thorpe 
chiefe jiifrice anfwered. Although proclamation be not made in 
the county, every one is bound to take notice of that which is 
done in parliament: for as foon as the parliament hath concluded 
any thing, the law intends, that every perfon hath notice thereof, 
for the parliament reprefents the body of the whole realm : and 
therefore it is not requifite that any proclamation be made, feeing 
the flatute took effetfi before. This gave me to underfland, that 
albeit it was not required by law that ftatutcs fliould be publifhed 
in the county; yet feeing in thofe days and long after, the ufe of 
printing came not into this realm ; the ufe was (as it appeareth by 
Cavendiflies fpeech) that they fnould be publifiied in the county, 
to the end that the fubjecfts might have exprelTe notice thereof, 
and not to be overtaken by an intendment in law, which gave 
me occafion to fearch and inquire how this ufage was, and how 
long it continued. And in the end I found, tliat at every parlia- 
ment the afts that palfed were tranfcribed into parchment, and 
by the kings writ directed to the flieriffe of every county of Eng- 
land, and commandement given to him, that all the faid ftatutes 
in all places through his whole bayliwick, as well within franchife 
as without, where lie (liould finde moil fit, that he not only fliould 
proclaime them, but to fee that they fliould be firmly obferved and 
kept. And the ufage was to proci2im them at his counjy court, 
&c. and there to keep the tranfcript of the afts, that who fo 
v/ould, might reade or take copies thereof. And this writ was 
fometin)e in Latine and fometimiC in French, as in thofe dayes the 
fi:atutes were ena6ted in Latin or in French. But an example of 
the one, and of the other will more illuflrate this matter. 

Ed^d)'ird7!s Dei grat^ rex Angliee et Franci^^ et dominus Hiherma 
vh' Norff.fahd. Qu<^dam Jlatiita p- nos^ prcelatos., comites^ barones^ 
tt alios magnates ad par liamentum nojirum fentu?n apud Ebcrum in cro. 
Ajceiifipnis ulfim' p}\<eterit^ crdinavimus et Jiabilivimus^ proztt fe(]uitury 
and recite the feverall flatutes lerbatlm. And then the writ con- 
cludeth. Et ideo tibi prcecipimus^ quod Jiatuta ilia et omms artictdos 
in e'fdem contcntos in fingidii locis in baliva tua^ tarn tjifra libertates^ 
quam extra, itbi expedire videris^ publice proclamari €t * firmiter teneri 
et ohfervari facias. Te/ie^ t'^c. 

Richard p. la grace de Dieu roy Dengliferre et de France., et feigniour 
fp Ireland a mjire 'vifcount de Norjf. falut. Sadies que at honeur de 
Dkn, et reverence de faint ffgHfe et pur nurrer peace., unitie., et concord 
in t.uis parts deins no/ire reahne., I e quel nous dejirons mult entirement^ 
del ajfent des prelafs, dukes., counts et barons de me/me nojire realme, al 
infiance et Jpeciall reqw/i des com7mris de noJlre realme ajjhnbles a no fire 
parliament te^ius a Wefljn. a la qidnzim de S. Michael Ian de noJlre 
rergnc primier avons fait ordeifier et ftablier certainefiatuts en cancndrnent 
et rellevcment d^ mifme noftre realme^ et en la forme que Jenfuift. Pri- 
mermcnt efl affentus e.t ejlablie, que faint eglife eit et enfy fe touts les 
droitnres^ &c. rehearfing all tlie ftatutes that pafTed at that parlia- 
ment. And the writ concludeth thus. Et pur ceo vous mandons 
qtie touts Ics fiaiuts faces crier et puhVier., et firjnament tener p. my vo/Ire 
b^^lliefolo7^q; la forme et tenor de icel^ et ceo ne leffes en a fun ?nanner. 
Date p. te/Imoignants de nofre grand f ale al Wefl7n. le prifnier jour de 
Fc'-ertr Ian de no/he reigne primer. And the like writs continued 


Cap. I. The High Court of Parliament. fzf) 

Untill the beginning of the reign of H. 7. long time after printing 
within the reign otH. 6. (as liath bin faid) came unto us. 

Prorogation^ Adjournment^ Continuance^ and what maketh a I *7 J 

Scjfton of Parliament, 

^wc piling of any bill or bils by giving the royal affent there- 
unto, or the giving any judgement in parliament doth not make a 
feffion, but the feflion doth continue untill tlmt feflion be prorogued 
or dilTolved : and this is evident by many j)reridents in parliament 
gncient and late. 

The parliament of 14 E. 3. began at Weftminfter the Wednef- Rot. pari. 
day after Mid Lent : the firft Monday of the parliament, the ninth H E. 3- ^'t* 
part of their grain, wooll, and lambe, &c. was granted to the P''";°- ""* 7> 8, 
king, on condition that the king would grant their petitions in a ^' 
fchedule beginning. Thefe be the petitions which by the com- 
mons and lortis was drawne into a forme of a ftatute, and pafled 
both houfes, and the royall affent thereunto, and the fame exempli- 
fied under the great feah After this the parliament continued, and 
divers a<5ls made, and petitioiw granted, and in the end that parlia- 
fnent was diflblved. 

In the parliament holden anno 3 R. 2. it is declared by aft of Rot, pari. 3 R. 2. 
parliament that the killing of John Imperiall ambafladour of Je« '^"- ^^- ^'^• 
noa, was high treafon, crimen l^fa majejiatis^ and yet the parlia- 
ment continued long after, and divers a6ts of parliament after- 
wards made, and petitions granted : and in the end the parliament 

In the parliament begun the firfl day of March, anm 7 H. 4. on Rot. pari. 7 H. 4. 
Saturdrjy the 8 day of May it was enacted by the king, the lords ««*• 29« &c. 
Ipirituall and temporal!, and the commons, that certain Tlrangers by 
name, who feemed to be oflicers to the queen, (lioukl by a day 
depart the realm, and proclamation thereof in kinde made by writ, 
by authority of parliament, which parliament continued, and di- 
vers other afts or parliament made, and petitions anfuered : and ou 
the 22 day of December 8 W. 4. diflblved. 

The parliament begun 7 November, and on the firft day of the Rot. pari. iH. 7. 
parliament it was relolved by all the judges, that thofe that were ""• 
attainted of treafon, and returned knights, citizens, or burgefles of "^ ^' 7- ^°' 4* '»• 
parliament, that the attainders were to be reverfed by authority of 
parliament before they could fit in the houfe of commons : and 
that after the attainders reverfed, both the lords, and thofe of the 
houfe of commons might take their places, for fuch as were attaint- 
ed could npt be |awfull judges, fo long as their attainders flood in 
force: and thereupon the attaindci's were reverfed by act of parlia- 
ment, and then they took their places in parliament, and the par- * R^t. par. 
iiament continued, and divers afts made. 33 ^■>'^- begun 

* The bill of queen Katharine Howards attainder pafled both n^.^^t^/cun' 
houfesabout the beginning of the parliam.cnt, whereunto the king fit- "nu'^cd t1"l thr"' 
ting the parliament by his letters patents gave his royall aflent, firft of ^^prilfol- 
and yet the parliament continued untill the firft day' of April), lowing. 
and divers afts of parliament pafled after the laid royall aflent On the 12 of Fc- 
given. Divers more mig'vt be produced, but thcfe fliall fuf« „7/\^h !A7-" 
^ce. bo as albeit bite palie both houfes, and the royall aflent the Tower, fit- 
given ting the parlia- 


27 The High Court. of Parliament. Cap. i., 

Prorogoa farro jrivcn thereunlo, there is no feflion untill a prorogation 6r a dif- 

^rogo,urJe folution. 

^Ad]^urrlr uncle '^'"'^ cliverfitv between a prorogation and an adjournment, or 
adjournare.ctad- Continuance of the parliament, is, that by the prorogation in open 
journanientum, iji court there is a feffion, and then fuch bils as paffed in either 
ad diem dicers, ot houfe, or by both houfes, and had no royall affent to them, muft 
^m dare.^ ^ g ^^ the next alfembly begin again, &c. for every feverall feffion of 
24H^? nu. I. ' parliament is in law a feverall parliament : but if it be hut ad- 
tzcH. 8. nu. I. journed or continued, then is there no feffion: and confequently, 
a6 H. 8. nu. I. all things continue ftill in the fame ftate they were in before the 
27 H. 8. nu. I. adjournment or continuance. 

^'^'^V E6 ^^^ ^^^ ^^^^^ of divers aas of parliament be. At the feffion 
nu I &c. holden by prorogation, or by adjournment and prorogation, but 

3 Mari^ fefl". 2. never by continuance or adjournment tantum. And the ufuall 
a8 Eliz. nu. i. form of pleading is, ad fe/Jimcm tentam^ ^c. per prorogatiotiem. 
&c. And in 

every of them it ' 

is faid [and there continued untiil fuch a day;] and yet in them divers adjournments were. See the 
Tournall Book in the lords houfe. Ultimo junll 14 E/lz. Cujios magnl figllli cx mandato domina /•<?- 
Ftna adjounia'vit prafensparHawent'' u/q; In fejium omnium fanffcrum. And in the parliament in anno 
go £liz. Cuftos magnl figilli ex mandato domina reglna (the queen being abfent.) 

r 28 1 ^^ ^'^^^ ^^^" ^^""^ longer and more curious for the clearing of 

this point for two reafons, i. For that the adjournment or con- 
tinuance (as before it appeareth) is much more beneficiall for the 
common-wealth for expediting of caufes, then a prorogation. 
2. In refpe£t of a claufe in the a6t of fubfidie hi the pariiament 
holden in anno 18 Jac. regis^ which is but declaratory of the former 
law, as by that which hath been faid appeareth. 

When a parliament is called and doth fit, and is diflblved with- 
out any a<4 of pariiament pafled, or judgement given, it is no 
feffion of parliament, but a convention. 

In the 18 year of R. 2. at a parHament holden before the duke 
t8°r!^2*! which f>f York (the' king being in his paflage to Ireland) the petitions of 
kegan i5Hiiarii. the commons were anfvvered : and a judgement given in the kings 
bench for the prior of Newport-pannell, againfl: the dean and 
chapter of Lichfield was reverfed, but no a6t of parhament paf- 
it6^ and therefore this parliament is omitted in the piint, ; but it 
is no queftion but it was a feffion of parliament, for otherwife the 
judgen.ent lliould not be of force : and many times judgements 
given in parliament have been executed, the parliament continuing 
before any bill paffied. 

The Thiife of Commons is a dijiin^ Court. 

Kota^ the houfe ('f commons is to many purpcfes a diftinfl court, 

y.nd tljerefore "is not prorogued, or adjourned by the prorogation 

or adjournment of the lords houfe : but the fpeaker upon fignifi- 

A .^ cation of the kings pleafure by the afient of the houfe of com- 

\>' mons, doth fay : this court doth prorogue or adjourn itfelf; and 

v^" ^^'en it is prorogued or adjourned, and not before. But when it is 

^ diiTolved, the houfe of commons are fent for up to the higher 

houfe, ,and there the lord keeper by the kings commandement dif. 

folveth the parliament ; and then it if diffolved, and not before. 

8 ■ ' And 

Cap. 1 . The High Court of Parliament. z% 

And the king at the time of the diflblution ought to be there in 

pcrfon, or by reprcfcntation : for as it cannot begin without the 

prcfenieofthekin^ cither in perfon or by reprcfcntation (as before 

it hath been laici) lo it cannot end or be dilFolved without his pre- 

fence either in pcrfon or by reprcfcntation. Nihil enim tarn con- Bra£lon. 

Vfnimt eH natwali aquitati, unttmquodq; dijjblvi eo iigamine quo lij^a- 

turn cji. 

It is declared by a£l of parliament, that the kings letters patents 33 ^ 8. can. 21, 
under his great fealc, and figned with his hand, and declared and [°/tcr3*1tentsi^ 
notified in his abfence to the lords fpirituall and temporall, and pig^ , jyj^^ *- 
commons aflemblcd in the higher houfe of parliament, is, and Comm'jjion au 4 
ever was of as good ftrength and force, as if the kings perfon had Sfignwn, Ss?c. a 
been there perlonally prefent, and had affented openly and pub- doner royaiUffint, 
licklytothcfame. 1« X P ^.,,^^ 

come eft defirc. 

Of Subfidies and Aides granUd by Parliament, 

Subfidie is derived of the verb fubjidiari, which fignifieth to be 
ready to help at need, unde fuhjidium^ which fignifieth aide and help 
at need, fo properly called, when fouldiers were ready to help 
the foreward of the battell : and aptly was the word fo derived, 
afwell becaufe that which we call uokv fubfidia, fubfidies, were 
anciently called auxiiia, aides, granted by aft of parliament upon 
need and neceflity : as alfo, for that originally and principally they 
were granted for 'the defence of the realm, and the fafe keeping of 
the feas, &c. Comniunia pericula requirunt communia auxilia. 

This word \^fubjidia\ is common, as well to the Englifli, as to 
the French. Concerning fubfidies hear what a ftranger truly ^^' Cominaeui, 
writetli. Reges Anglia nihil talcy niji convocatis primis ordinibus, et 5* *^^* 

ajJentienU populo^ fufdpiunt. Qu^ ccvfuetudo valde mihi laudanda vi- 
dctur ; inter vent etite enim populi voluntate et ajjenju crefcit robur^ et 
fotentia regum^ tt major ejl ipforum authoritas, et feliciores pro* 

Subfidies taken in their generall fenfe for parliamentary aides are 
divided into perpetuall and temporary : perpetuall into three parts, 
viz. \vAo cujluma antiqua^five magnuy cuftuma nova five parva^ and in- [29] 
to cuftome of broad cloth. Temporary, whereof there are three 
kindes, viz. i. Of tonnage and [)oundage of ancient time granted 
for a year or yeares incertainly, and of latter times for life. 2. A 
fubfidie after the rate of 4s. in the pound for land ., and 2 s. 8d. 
for goods. And 3 Tor an aide called a fifteenth. And of tliefe in 

Cujluma anil qua five magna, 

Cujluma antiqua five magna was by 2i^. of parliament granted to See hereafter, 

king E. I. his heirs and fuccefibrs for tranfporlation of three ". ix.Verb. de 

tliHigs, viz. wools, woolfels, and leather, viz. for every fack of "o^s Cuftome*, 

woolj^ntaining thirty fix ftone, and every ftone fourteen pound, f^'*- £ '/'"rJ^ 

I A ^^^^ ' *"^ ^"'* ^'^^^^ hundred woolfels half a mark, and for pal. 3 e. j. 

a laft of leather thirteen (hillings four pence, to be paid as well by m. 1. dac 10 

Grangers as by Englifli. Prarlati, magnates, et tota communitas an- Novcmb. which 

fiejjcrunt quondam ecrfuciudinem nobis de lanit, felliius et coriis ^^^ ^'fThe'^el'r* 

^^- ^^' ' • ^ ^'^'^^' for he begaa KU 


rpiga 17 Nov. 
Confirrrat. car- 
taianj Vet.. 
fo. 36. a. 
* Int. bi-evia de 
term Mirh. 
a6 E. J. In ffi. 
rtmem. re /is. 
* 45. 

6 H. 6, nu. II. 
iz E. 4- ca. ^. 

7 E. 4. nu. 30. 
J E. 6. ca. 13. 
1 Mar. cap. 18. 
lEliz. ca. 19. & 
3 Jac. regis ac- 

Cuftuma is de- 
rived ot" the 
French word cot/- 
^aw, ). trJbutum 
feu vedigal. 
Rot. cart 3 1 E. i. 
nu. 44. called 
Carta merca- 
toria. This was 
queftioried rot. 
ordinat. anno 5 E 
ca. z6. F. N.B. 

The High Court of Parliament Cap. r. 

/iirfiitP marc\ de 300. pellihus dhwd' ?necrc\ et de lafia corkrum unam 
m.trcam. In the ftatute called Confirmatknts cartarum c.nno 1^ E. i. 
th^-re is a faving in th^fe woi'cis, ^ave a nons^ ei ncus hrirrs la cvfiome 
de% hynesy peahe et quires j^ra>?t* per k comminalfy du realm, Ste aifo 
the like i-n the pre<'imblc; ; * Salva tanicn nobis tt h^redihus nojhis 
cujiutna lanarum^ pcUium et tcrioYum per communitaiem dldi rtgni mhis 
puni* ccnceff. 

* Note it is fald in divers record?, ^er communifatem An^lia nobis 
conccJ}\ becaufe all grants of lubfidies or aides by parliament fioe 
begin in the hoiife of commons, and firft granted by them : alfo 
becaufe in effei^l the whole profit which the king reapeth doth 
come from the commons. 

Cufluma parva et nova. 

In the 31 year of E. i. the merchant Grangers in coniideration 
of certain liberties and priviledges granted to them, and a releafc 
to them of ail prifes and takings, gave to the king and his heirs, 
three fliiliings four pence, ultra antiquam cufit>7nam iit prius cor.cejf. 
So as where the fubjeft paid a noble, the flranger paid ten fliii- 
lings, &c. See the ilatutes of i H. 7. ca. 2. 11 H. 7. cap. 14. 
22 H. 8. cap. 8. 

. '2. but allowed of in parliament, anno i E. 3. 9 E. 3. ca. i. 27 E. 3. fiat. StapK 
217. d, 259. a. 

1 El. DJer 165. 

Of wools dra- 
ped into cloth 
no cuftome was 


Int. Orig. dc 
^4 E. 3, rot. ; 

Cuftome of what Things^ ex antiquo. 

And it is to obferved, that of ancient time no cuftome was by 
Eriglifh or ftranger, but for wools, woolfcl?, and leather. Hereby 
it appeareth how neceflary the knowledge of ancient records, and 
of the true originall of every thing is. 

In the reign of E. 3. a great part of the wools for the which 
fbch cuftome was granted, and paid, as is aforefaid, was draped 
into broad cloth: whereupon qiieftion grew, whether upon the 
tranfportation of the cloth, into which tlie wool was draped, 
euftome fhoiild be proportionably paid, having regard to the 
quantity of the wool fo converted into cloth: and it was relolved, 
that no cuftome fhould in that cafe be paid, becaufe the wool by 
the labour and indullry of man was changed into another kind of 
merchandize : wherewith the king held himfelf fatisfied, and fo it 
appeareth in the kings own writs and records enrolled in the ex- 

The firft a6l oi parliament that gave any fubfidy of cloth, was 
in anno'2.\ E. 3. (nor printed) viz. fourteen pence of lieges, and 
one and twenty pence of ftrangers, for every cloth of aifife, and 
two ftiilhngs four pence of lieges, and three ftiillings fix pence of 
ftrangers for every cloth of fcarlet, &c. Fide inter origin,uV de 
fcaccario, 24 E. 3. rot. 13. And the reafon of granting the 
faid fubfidies of broad cloth was, Quia jam magna pars lance regni 

noftri in ezdem reg>:o ^annificiiiir^ ds que 

cujiuma aliqua non eji foluta^ 

Cap. r. The High Court of Parliament. 30 

per qiml pycf.iuum qu ' wis ct fuhJiiUis lanarum^ Ji extia di^um l5'.»7^-3-''°^4- 

r<'rr:u;n r/:icn(n!ur, p< I mui^ m multo Mmifiuunturt Sc, And ^''*: »«« f^C'jn**^ 

yet it in any c:\fe the kiag might by his prerogative have fct any [*ytej°M " 

impofitioP; lie Height have fct one in that cafe, for that, as it ap- cap. 30 

jx'arcrh b\ tliat rccon', by making of cloth the king loft his cuf- I^yi7E.5.iut.i. 

tomes of wool: and therefore for further fatisfaftion of the king *»" 4-^a*>»» 

for tl>€ ciiftome of wool ; at the parliament holden in anno 27 E. 3. ® * * 

a Uibfiiiy was j!;ranted to the king his heirs and fuccelTors, (* over ^.. '^' ^^^'"^ 

the cnllomcs thereof due) viz. of every whole cloth of affife not lnnlz[^^^% '** 

ingrained, four pence, and for the half of fuch a cloth, two pence, The aln^genVce 

and of every cloth ingrained five pence, and of the halfe t^vo or the fubjcfl 

pence half penny, and of every cloth of fcarlct fix pence, and of g'^ntrd by par- 

the half three pence; and the alnegers fee is granted to him by j^J^'p' 

a.5t of parliament, viz. for the meaiuring of every cloth of afliie Confuct^udi^csj* 

of the feller a half penny, and of half a cloth a farthing for his flat, de Scacca- 

oifice, and no more, nor iliall they take any tiling for a cloth that '"'o* 5» ^- 3* 

is Itfle ; and that he take nothing of the alnage of any cloth but ^^"^"'T'- <ie» 

only of fuch cloth as is to be fold. And both in this a6l, and in ^^^\ ^a " 
fome acl> in the reign of H. 3. confuttudines et cujlimife^ which are ' '- ■ '• 

engliflied, cuftomes, are taken i"or the fubfidies that were granted 
by parliament, for verily thofe were ancient and right cuftomes 
or fubfidies. And in tlie ftatute of 1 1 H. 4. cuftomes and fub- 
fidies are u fed as j^;7<?^^7;;«fj. 


Butlerage is a cuftome due to t1ie king of two ihillings of every 
tun of wine brought into this realm by ftrangers: but Englifhmen 
payeth it not. 

In libro riiheo in fcaccaria in cnjlodia rememoratoris regls^ fol. 265. Lib. rubfus in 
the grant of king John to the merchants of Aquitain trading for ^^.'"- ^°- ^65. 
wines thence into England of divers liberties, viz. De liberiatikis ^'g" ^1^* ^' S" ^ 
concej/is mercatoribm vinttariis de ducatu Aqititayiia^ reddendo regi et ofYorkscafc 
h.-ertdibus fuis 2.s. de quolibet dolio vini duili fer eofdem infra re^num 
Angliie vel potfjlate regis. 

AH merci-ant ftrangers in confideration of the grant to them by ^°^ cartarum 
the king of divers l-bmies and freedoms, Cor.cfJJerunl quod de quoli- JJ""°^' f^'j/j 
bet dolio vini qucd cdduce^t lel adduci facerent infra regtiutn, ^c. foU Ca'rta mercal 
''jent nobis et hajediluj noflrii tmnine cufiuma duos folidcs, ^r. toria. 


Prifage is a cuftome due to the king of the wines broueht in by ri r 

the merchants of England of every fliip having twenty tuns or Rot oat aoH*!' 

more, two tuns, viz. one before the m.aft, and the other behind, Rot! par". 28 Ei' 

paying twenty fliiilings for each tun; and this is called certa prifa^ pioMath.dcCo-' 

and rcda frifa^ and regia prifa^ as in the record enfu'ng appeareth, '"™l>ar'. 
and hereof mtrc! ant ftrangers are difcharged, per cartam mercato- 
ria.ft, 31 E. I. ubifupra. 

Memwandum quod rex hahct ex antiqua confnetudine de qualihet nave ^; ^cc- 20 R. 2. 

mercatoris vini 6. carcat' applican' infra aliquem portum An^Ua de vi- "^""^Tr. 13 F. x- 

gimidoliis duo dolia, et de decern doliis unum de prifa regia^pre quodam I^Jl* ""^-^V,^* 

cirtoabanliqif,a>nfiitut^foh^\ I J I ¥ 'f^ ^^^^ ' '" 

D a Fertby 


43E.:?. ca. 3. & 
X H. 8. ca. 5. 

Concerning the 
alnaging of new 

[ 30 

Sec Rot. pari. 

50 E, \. nu. 142, 

Cog ware Ker- 


See hereafter, 

cap. 67. 

Sec Rot. pari, 

9 H. 4. nu. 34. 

Kendall clothes, 

&c. 1 1 H, 4, c. 2. 

cmQ:. II H. 4. 

nu. 26. for rem. 

nants of cloth, 

&c. iiH,4.c.7. 


The High Court of Parliament. Cap. t. 

Hereby it appeareth that prifage is due by prefcriptlon, and that 
it was a certainty of ancient time ordained to be paid. 

It is called butlerage becaufe the kings chief butler doth receive 
it, and prifage, becaufe it is a certain taking or purveyance for 
wine to the kings ufc. 

In Hilary tearm, a;wo, 1 fac, regis, upon a fiiit made to the king 
by the duke of Lenox, queftion was moved concerning new dra- 
peries, as frizadoes, bayes, northern cottons, northern dozens, 
clothrafti, durances, perpctuanoes, fuftians, canvas, fackcloth, wor- 
ileads, and fluffs made of worftead yarn, whether the king might 
grant the alnaging of them with a reafonable fee, or whether they 
were within the faid ftatute of 27 E. 3. And thefe queftions were 
by the kings commandment in this Hilary Term referred to all the 
judges of England to certifie their opinions concerning the fuit to 
the lords of his privy councell ; who upon often hearing of the 
caufe, and mature dehberation, and conference amonglt them- 
felves, in the end in Trinity term following with one unani- 
mous confent, certified in writing in thefe words following, viz. 
To the lords and others of his majefties mod honourable privy 
councell. Our duties to your lordfliips remembred. May it 
plcafe the fame to be advertifed, that according to your letters in 
that behalf, we have heard the matter touching the fearm of the 
alnage, and meafurage, that is fought to be granted by his majefty 
of fundry kindes, as well of new made drapery, as of other ftulfs 
made within this realm. And upon hearing as well of fome of the 
part of the mafler of Orkney, as of others, both of the behalf of 
the duke of Lenox and mafter Shaw, have informed our felves 
touching the fame. And for our opinions we are refolved, that 
all new made drapery made wholly of wool, as frizadoes, bayes, 
northern dozens, northern cottons, cloth raih, and other like dra- 
pery, of what new name focver, for the ufe of mans body, arc 
to yeeld fubfidy and alnage according to the ftatute of 27 E. 3. and 
within the office of the ancient ahiage, as may appear by feverall 
decrees in that behalf made in the exchequer in the time of the 
late queen. But as touching fuftians, canvas, fackcloth and fuch 
like made meerly of other fluff then wool, or "being but mixed 
with wool, we are of opinion, that no charge can be impofed for 
the fearch or meafurage thereof, but that all fuch patents fo made 
are void, as may appear by a record of the 1 1 . year of H. 4. 
wherein the reafon of the judgment is particularly mentioned, 
which we held not amiffe to fet down to your lordfliips, which is 
thus, The fame king H. 4. granted the meafurage of all woollen 
cloth and canvas that fhould be brought to London to be fold by 
any (Iranger or denizen (except he were free of London) taking 
one half penny for every piece of cloth fo meafured of the feller, 
and one other half penny of the buyer, and fo after the rate for a 
greater or lefTer quantity', and one penny for the meafuring of loo. 
els of canvas of the feller, and fo much more of the buyer. And 
although it were averred that two other had enjoyed the fame office 
before with the like fees, viz. one Sherin^ by the fame kings grant, 
and one Clythcroe before by the grant of king R. 2. yet, amongfl 
other reafons of the judgment, it was fet down and adjudged, that 
the former pofTefhon was by extortion, and coertion, and without 
right, and that thofc patents were in merationem, opprejjionem et de^ 


Cap. I. The High Court of Parliament. 31 

pnupciationcm popiiU Jcmitti rcgts^ et nm in crrund^itlomm ejtffiUm fopuh^ 
isfc. and no benefit to the king, and therefore the piitentb void. 
And as touching the narrow new ftuffe made in Norwich and 
c^her places witl» worftead yarn, wc are of opinion that it h not 
p.rantablC; nor fit to lie granted, for we cannot i\n{\, that there was 
tier any alnagr upon Norwich worftcads. And for thefe fluffs, 
il after they be niatle and tacked up for lale by the makers thenroi, 
they fliould be again opened to be viewed and meafurcd, they will 
not well fall into their old plaits to be tacked up as before, wiiich will 
be (as is atiirmed) a great hinderance to the falcs thercct in grofie, 
for that they will not then appear to l>e fo merchandizable, as they 
were upon tlie fiift making of them up: and even fo wc hun)bly 
take our leaves. Serjeants Inn, the 24. of June. 1605. Which 
certificate being read by the lords of the privy councell (I being 
then atturny generall and prcfent) v as well approved by them all, 
and commandment given, that it ftiould be kept in the councell 
cheft to be a direction for them to give anfwer to all fuits of that 

And it is to be obferved, • that afts of parliament that are made 37 E.3. ca. 5, 6, 
againft the freedome of trade, merchandizing, handycrafts, and f^ ^' ^' -'*" ** 
my fteries, never live long. de TayiJs ^ 


G^d Bills or Alotions in Parliament Jeldorm die, [ 32 1 

It IS an obfervation proved by a great number of prefidents, that 8 F z n .. 
never any good bill was preferred, or good motion made in par- '7 £• 3- "«'• 49« 
liament, whereof any memoriall was made in the Journall Book, ' ^' ^' ^"; ^^ 
or otherwife, though fometime it fucceeded not at the fird, yet ^ r.' l[ n^' ^ 
hath it never died, but at one time or other hath taken effect ; i H. 4. nu. 121, 
which may be a great encouragement to worthy and indu^rious ar- * ^' 4. «»". 83. 
tempts, as taking fome few examples for many, which I have *^^-4« au.po. 
quoted in the margent. ' ' !," ' •♦• '*"* *7' 

7 H. 5. CO. 18. 
1 H. 6. nu. 41. 7E. 4. nu. 20. j^s ef Par /lament z B. 5. cap. x. 25 E. 3. «;»- s'. 4 H. 4. 
ca. 22. I H. 5. cap. 1. 15 H. 6. ca. 14. i R. 3. ca. 3. 21 H, 8. cap 5. ^Z H. i. c^p. 4. 
26 H. 8. cap. 3. 3 I H. 8. ca. i. 32 H. 8. cap. 32. s E. 6. cap. 8 & 13. i 5c 2 t'u. Li Mjt. 
«ap. 1 3. Vide Infra, cap. 8. pa. 

The Suhjidy of Tunnage and Poundage, 

By the fubfequent records you fhall obferve 1 3. things, i. The 
grant of poundage only. 2. Of tunnage and poundage, 3. Seve- 
raJl rates, fometimes 6. d. 8. d. 12. d. for poundige. 4. Some- 
times 2.S. 18. d. 3. s. 5. Hac vice, I, 2, 3, 4. years, for life 6. To 
merchants, &c. 7. To have intcTmilh >a and to vary, left the 
king ihould claim it as a duty. 9. Exprciled upoa free gift. 
9. Upon condition to keep the Teas, and for commerce. 10. That 
15 ever the confideration and caufe of the grant. 11. Granted 
without retrofpea. 12. Sometimes double of itrangers. 13. Cloth 
excepted, that it be not fiibjeA to tannage and poundage. 31 

^* ^' r p 

* Of poundage only, and 6.d. in the pound, for two years upon a^fc ^^f\' 
condition, &c. *' ^ 

Da 6. d, for 

iiR. 2. nu. iz. 
e 13R.2, nu.2o. 

32 The High Court of Parliament. Cap. i , 

6R. a. nu. 13. ^ 6. d. for poundage, and 2. s. for tiinnage of wine, hac vice. 

*= 7 R. 2. ftat. I. ^ 6.d. of every pound of merchandize, and 2. s. of every tun 

^ 5R. 2. nu. 40. of wine, upon condition, &c. hac vice. 

9 R. 2. nu. J I. ^ Sometime to have interniiflion, and to vary, left the king 

10 R. 2. nu. 18. fliould claim as duties. 
^ for tunnage of wine 3.S. and 6.d. for poundage for one 

year. 12. *^ 3.S. for tunnage of wine, 12 d. for poundage, hac vice. 
517R. 12. 8^.(i. for poundage, and 18 d. for tunnage of wine for three 

^-2H. 4 nu. 9. h 8. d. for poundage and 2.s. for tunnage of wine. 
*4H. 4. nu. 28. * 12. d. for poundage, and 3.S. for lunnage of vyine for three 
fcv^ H years. 

8 H. 4. nu."q.^' ^ 12. d. for poundage, and 3. s- for tunnage of wine for feverall 

9 H. 4. nu. 27. times upon condition, fonietime for one year. In thefc and moil 
I ^^ ^^'^^ former granted upon condition for due employment^ of 
»"i?H4 nu 10. ^^^^^ °^'^" S^'*^*^ ^^^^^> ^^^^ ^^ entred, and the king to have a cer- 
p o ' tain fum ^ more exprefly. 

'5' "• 7* tx 12. d. for poundage, and -^.s. for tunna^re of wine for four 
" y,,^.3^ ' ' 

P 2 H. 6. nu. 14. o -phe Yikt fubHdy is granted to the king for his life upon con- 

^3^. 6. nu. 17. ditions, &c. which was the firfl grant of tunnage and poundage 

9 H. 6. nu. 14. for life, which was a leading grant, as hereafter appeareth. 
'■ 16. P The fubfidy of poundage only for two years. 

* 31 H. 6. nu. 8. 1 Tunnage of wine and poundage granted for feverall years. 

^'^^P-^' ' Tunnai^e and poundage, ut prius of denizens, double of 

* Not- .J n c )f a ") t, y 
t E • V itJ'angers. 

ca. I'^^in p^hit"^' * Tsnn?ge of v\ine and poundage granted to H. 6. for life with 

"Rot par ' ^^ exception of all woollen * cloth: and here cloth was firll ex- 

I H. 7. not cepted, and was a leading exception in all fubfequent afls. 

printed, for he ^ Tunnagc of wine and poundage granted to E. 4. for life with 

haa many Tub- no retrofpedt, but for the time to come. 

e(?none."^^"'''' " ^^ ^^^^ parliament holden mm i H. 7. a like aft was made for 

^Ror.t-arl.iK.g. ^h^ grant of the lubfidies of tunnage and poundage to him for his 

not printed. lll^- 

Vid.6 H. 8. ^ And the like fubfidy was granted to king H. 8. at the parlia- 

ca. 14. in pnnt. rntnt holden amo i. of his reign for his life. 

L 33 J The like grant was made to E. 6 queen Mary, queen Eliz. and 

iE^6. ca. 13. j^jj^g Janies for their feverall I'ves, and in all thefe it is affirmed, 
1 Eii^z." cap' in". ^^^^ ^'^'^ ^^^^^ grants Were made by aft of parliament to king H. 7. 
jjac.'ca. 33. * and king H. 8. 

The confideration of the grant of the fubfidies of tunnage and 
poundage is ever, as is aforeihid, expreffcd in the grant, for the 
keeping and fafeguard of the feas, and for intercourfe of mer- 
chandize fafely to come into this realm, and falely to ivdiTe out of 
the fame. And this pertainetfi properly to the office of the lord 
* Rot, par. admirall to fee the confideration of the a61: to be performed, 

nH.^ nu'io * They are granted of the free good will of the fubjefls, and fo 
exprefiy fet down in the parliament roll. 

In king James his reign, when I was a commifTioner of the 

trcafury, ihefe fubfidies granted for life amounted to one hundred, 

A bcok of rates ^^^ threefcore thoufand pounds per anniini^ and fo letten to farm, 

cr values. The values of the merchandize for the which the fubfidy of j)oundage 

is paid, do appear in a book of rates in print, whereby the mer- 

* chant 

Cap, I. The High Court of Parliament. 33 

chant knows what he is to pay. The fwblldy of tunna^c of wine 
is tMt;iin in tt.cfc ac>s by the contents of the veflcis; and none of 
t' > afts doe extend to nny other liquid merchandize imported or 
( A >)iied, hut unto wines only : and facing nothing is more inccr- 
lain then the continuance of the values of merchandizes where- 
fore the I'ubfidy of poundage U paid, it were good at every grant 
of them to fet down the rates in a fchedule annexed to the bill. 

SubfJies temporary and ujuall at his Day, 

SubfidJes temporary and ufuall at this day. And this is when 
the commons in parliament freelv grant to the kinjr an aid to be 
levied of every fubjcft of his lands or goods after the rate of 4.S. 
in the pound for lands, and 2.s. 8.d. for goods, and for aliens for 
goods double, to fuch ends and for fuch confiderations, and to be 
paid at fuch times, as by the a<fl;s thereof (which are ufuall and 
fre(]uent) df>e a: pear. And in former times in this kind of fyb- 
fidy, this order was ohferved, that over and above the fnbfidy of 
tunnage and poundage, the commons never gave above one fub- 
fidy of this kind, and two fifteens, (and fometime \t^t) one fab- 
(idy amountir.a to itstvAw thoufand pounds, and each fifteen at 
twenty ni:^e thoufand pounds, or near thereabouts; nor above ope 
fubfidy, which did rife to twenty thoufand pounds, the clergy gave 

At the parlianrent holden in 31 Ellz. the commons gave two, and four fifteens, which firft brake the circle. 
\\\ 55 Eliz. three Aibfidies and fix fiftecni. 
In 39 Eliz. three uibfidies and fix fifteens. 
In 43 Eliz. four fubfidies and eight fifteens, &c. 
In 21 Jac. regis^ three fubfidies and fixe fifteens in fliorter times 
then hsd been before. 

In 3 Car. regU^ five fubfidies in ihortefl time of all. 
And it is worthv of obfervation how qnie-tly fubfidies granted 
in forais ufuall and accuftomable (though heavy) are borne; fuch 
a power hath ufe and cuftome: on the other fide, what difoon- 
tents and diftuibances fubfidies framed in new molds doe raife, 
(fuch an inbred hatred novelty doth hatch) is evident by examples 
of fonrer times : 

As that of 4 R. 2. a new invention of fubfidies of the kings RotPar. 4R.«. 
fubie<f^s of either fex by the poll, Sec. for the furnifiiing of the ""• ^5- 
earl of Buckingham for his going into France, whereupon a llrong ^ '^' °"' ^** 
^nd a flrange rebellion cnfued, wherein three great and worthy 
officers were by the rafcail rebels barbaroudy and wickedly mur- 
dered, viz. Simon Sudbury archbiftiop of Canterbury, chancelour 
of England, the prior of S. Johns of Jerufalem, treafurer of Eng- 
land, and Sir John Cavendifli chief jullice of England. 

In 4 H. 7. another like new found fubfidy was granted, which Hollcn|h Chron. 
raifed a rebellion in the north, in which the noble carl of Nor- 769. 
thumberland a commilfioner in that fubfidy, was by the rebels 
cruelly and caufelefly (lain. 

In anm 16 H. 8. to furnifli the king for his going in his royall [ 34 ] 

pcrfon into France, a new device for getting of mony was fet on Hollcnflj. Chron. 
toot, which made the headlefle and heedlcfle multitude to rife in ^9^* 

D 4 rebellion, 


Rot. par. 9 E. 3. 
nu. 5. 

9 H. 6. nu. 15. 
JO H.6. nu. 50. 

The High Court of Parliament. Cap. i, 

rebellion, imtill Charles Brandon the noble duke of Siiff quieted, 
and difperfed them. 

At the parliament holden in 9 E. 3. when a motion was made 
for a fubfidy to be granted of a new kind, the commons anfwered, 
that they would have conference with thofe of their feverall coun- 
tries and places, who had put them in trufl, before they treated of 
any fiich matter. 

Vide 9 H. 6. nu. 15. Every knights fee to pay 20 s. and fo ac- 
cording to the value under or over, and fo of the ckrgy for lands 
purchafed fince 20 E. i. And all other having 20 1. lands not 
holden as is aforelaid, 20 s. &c. This whole fubfidy for certain 
doubts the king utterly releafed, fo as there is no mention made 
of the fame: but hereof thus much fliall fuffice. 

Safie 'viatorem mva^ non vetus orb'ita fallit. 

Of Fifteenst ^Inzims^ t^c. 

Fifteen?, Qujn- A fifteen is a temporary aid granted to the king by parliament, 
zimor Taflc, or which without further inquiry is certain, and therein difFereth fiom 
Quinta dccima. ^^^ fubfidy, which is ever uncertain, untiU it be afTefled. 

The fifteen of ancient tirre was the fifteenth part of goods niove- 
able, but in 8 E. 3. all the cities, boroughs, and towns in England 
were rated certainly at the fifteenth part of the value at that time 
generally upon the whole town, whereof you fliall read more at 
large in the fecond part of the Inflitutes, in the lall chapter of 
Magna Carta, verb. Quinta7n decimam partem bonorum mobil'ium. 

Second part Inft. 
Mag. Carta cap. 

Of Tenths, 

There is declma pars of the laity, and for the mofl part of cities 
and boroughs by thtir goods (Vid. i R. 2. nu. 26.) which pro- 
portionably is, fecundiim decimam quintam partem. That which 
we call tax, tallage, tenth, and fifteen, the Saxons called geldinn*, 

* Doomfday. we ufe the word changing g to j, for geiding^j^ee'ding, C^c. 

l^orff. in Wane- No *• fubfidy before the end of the parliament, becaufe it is to 

)unt,i.Wayland, accompany the pardon. 

& ibid, in Fre- '^ ■' ^ 

bringe in Maf- 

firgham, &c. * Rot. par. it R. 2. nu. 11. This Is contained in the aft of fubfidy, and (o an 

8ft of parliament; and accordliigly fubfidies, &c. have been granted, as in the book oi ftatutes ap- 

pt areth. 

Rot. par. rH. 5. 
nu. 20. I H. 6. 
ru.46. 3 H. 7. to 
the queen. 6 . .8. 
to the duke of 

Of j£ls of Parliament of Ccnfirmailon of Letters Patents. 

We have read of particular ads of confirmation of letters pa- 
tents ; but the firfl of lands, &c. that was the more generall, was 
the ffatute of 31 H. 8. ca. 13. of mopa'ierits (to make thofe 
lands the more paffable) but alter that, gr uerall ads of confirma- 
tion of letters patents have been very frequent. 


Cap. I. The High Court of Parliament. •1-34 

Hoiv the Lords give their f^oi(ei. 

In the lords houfc, the lords give their voices from the puifne 
\or<\ Jaiatim by the word of [content,] or [not content.] 

A bill was preferred at the parliament holden in anno6H.6» Rot. par. 6H.6. 
that no man nioukl contraft or marry himrdt to any qiieen dow- ""• *7. 
agerof England without fpeciali licen«.e and alfent of the king, 
on pain to lofe all his goods and lands. The biihops and clergy 
aflented to this bill, by the word ot [content,] as far forth as the 
fame fwarveil not from the law of God and of the church, and fo 
as the fame imported no deadly f n. At ttiis time there were be- 
iides the archbifliops and bifliops, 27 abbots and 2 pri.irs, ( ;lbeit [ 3S] 

in troth the number was many limes uncertain, as in tiie dole roll How many lord« 
it appeareth) which ftverally held per l>ayon:am, and were lords of ^P'r'tuali m foe- 
parliament, and lb continued untill they were dilfoived in the reign 
of H. 8. The entry of the faid aft of 6 H. 6. in the roll is: It is 
f nafted by the king, lords temjorall, and conuiions, that xio man 
fhould contraft or mnny himfelt to any queen of England, v\ith- 
out the fpeciali litcnfe and aiTent of the king, on pain to ioie all his 
goods and lan<is. The bifhops and clergy affented to this bill, as 
far forth as the fame fwerved not froai the law of God, and ot the 
churcli, and fo as the fame in ported no deadly finne. 

This is holden to be an -^h oi parliament : liift, for that the af- 
fent of the clergie con Id n t be conditi-inall. Secondly, it was not 
againft the law of God nor of the church, nor imported any deadly 
iinne to make this law by authority of pariianjent, as it appeareth by 
Magna Carta, cap. 7. which had by 32 afts of parliament been con- 
firnied, and many others. 

This law was made after the marriage rf queen Katherine dow- 
ager of H, ^. wiih Ow en a;> Mereditr ap Gr<;no (defcen led of the 
princes of Wales) by whom fhe had idue ir.dmond of Hadham afore- 
laid, earle of Richmond, and Jafper of Hatfeild, after earl of Fem- 
broke, and duke of Bedford. 

How the Commons give their Voices. 

and i 

le commons give their voices upon the qtieftion, by yea or no, 
«..- .fit be doubtfull, and neither party yield, two are appointed to takeih it, and 
number them ; one for the yea, another ibx the no : the vea jjoing ^^^^ ^'^^ '^'"'^ 
out, and the no fitting : and thereof report is made to the iioule. "'*"''" ^^«a»- 
At a committee, though it be of the whole houfe, the yeas go of 
one fide of the houfe, and the noes on the other, whereby it will eafily 
appear which is thegreatefl number. 

How Parliaments fucceed not well in five Cafes, 

It is obferved by ancient parliament men out of record, that par- 
liaments have not fuccecded well in five cafrs. Firfl, when the 
king hath been in difpleafure with his lonis, or with his commons. 
a. When any of the great lords were at variance between them- 
felves. 3. When there was no good correfpondencc between the 


S5 The High Court of Parliament. Cap. i. 

"^ lords and the commons. 4. When there was no unity between the 

commons themfelves. 5. When there was no preparation for the 
parliament before it began. 

* Por the I : fo eflentiali is the kings good will towards his 

* ^E^' ^^nu commons, that it was one of the petitions of the commons to the 
^•Ind'ihi w^iifto ^^"S» ^^^^ ^- would require the archbifli. and all others of the 
the clergie, De clergy to pray for his eftate, for the peace and good govcri^ment of 
crando pro rege the land, and for the continuancc of the kings good will towards 
^ regr.oy which j^is comoions : whereunto the thrice noble king afTented with thefe 
Se"daves.^" effeftual words, The fame prayeth the king : and many times the 
. ' * like petitions for the lords. ^ How the king in all his weighty af- 

^' P^'j'^*^ ^ fairs had ufed the advice of his lords and commons, (fo grea't a truft 
2- E.' \. nu.'i^5« ^*"^ confidence he had in them.) Alwaies provided, that both lords 
50 E. 3. nu.2." *>^^^ commons ke^p them within the circle of the law and cuftome 

of the parliament. 
"Rnt par.4H.6. ^ ^^■'' ^^^ fecond : at the parliament holden in 4 H. 6. what va- 
nu. 12. See the |;iance was there between the duke of Gloc. and tlie b. of Win- 
a6i;sof that par. chefter, and their friends on either fide ; the fuccelfe was, that little 
liamcnt. ^.^^ ^qy\q, in any parliamentary courfs at that parliament, and that 

little was of no moment. 
•^Ror.par. 3H.6. ^ At the parliament holden in the third year of H. 6. the great 
jiu. 1. cc io. controverfie was between John earl maril.all, and Richard earl of 

Warwick with like fuccefle. 
e Rot pari. *" The like controverfie between Wjiliam earle of Arundell 

ayH.e. nu. 18. and Thomas ear! of Devon, for fiiperiority of place, with liHe 
''Rot. par.2H.4. event. And many more might be cited. ' And alwayes in 
^u- H- the beginning amity was made bsr.veen the grandees of the realm 18 2c, i^y ihikins; cf hands and kiifin^, and fometime bv * iubmif- 

* Rot. Pari. -^ o ->' - 

count of Arun- For the third, when it was demande<i by the Jords and com- 
deu to the duke mons what might be a principall motive for them to have good 
of Lancaih fuccefTe in parliament, it was anfwered, F,r'ths infupe^-akiles^ fi 

4 1. . nu. 12. Jy^^Yitis in/dparahiles. Exphfum eft illud diverhtum ; d.vhfe^ ei im-^ 
pera^ cum radix et vertex imprii in ohdientium con/er/u rata funt, 
r 36 1 Foi* the fou'th, unity between tne conim^ns themfelves. It 

Rot. pari, anno is moft necei^ary in both thefe, and agreeable to the parlia- 
II H. 4. nu. 10. nient in the book of Judges, ^uaji homo unus^ fadem mente^ una con- 
the king defiied Z^,"^, 

^^'^''d^'u' For the fifth, the fummons of parliament is by forty dayes or 

2,0 ju icum. above before the fitting, to the end that preparations might be 
had for the arduous and urgent affairs of the reahr.e : anci that both 
the king, according to the exam.ple of king David, and likcwife the 
iChron. cap. 28. nobles and commons fliould prepare; for praparata meditatimes 
funt fcmper fanlores et meliorcs quam proper ata^ wheiein both houles 
may greatly expedite the bufinefle of the common wealth in par-? 
liament, if .they will purfue the ancient cuftome of parliament, 
viz. in the beginning thereof to appoint a fele<5l: comroitttc to con- 
sider of the biis in the two laft parliaments that pafTed both houfes, 
or eirher of them, and fuch as had been preferred, read, or com- 
mitted, and to take out of them fuch as be moH profitable for the 


Cap. i« The High Court of Parliament. 36 

The Honour and Antiquity of the Parliament, 

i or tiK- honour and aiulquity of the parliament, fee the firft part 7W-6.2S.I»b.n. 
of the Inftitutes fe<?>. 164. verb, Fehne ks hur^ejfei^ and in the J"^*^** ^^ ^. 
pref.icc to the ninth book of my Reports, fo. t, 2, 3, 4, &c. where ^!^^*jj ^fj,^ 
unto you may addc, Inf ie^es ktkvatdi re /f, ca . 8. </t tccle* ca. 8. 
'^ ' ilh^ feii. tie apibus vert^ (sfe. Hrc enim pr/edicavit hiatus 

r. et oncejja funt a regr bnrotiibus et pnpulo. A grant by^ex- 
picliu act of pariiament. f^ide Infra^ cap. 79. pag. 

The Power and Jurifdi^ion of the Parliament^ /V- /^ • 

* Of the power andjurifdicf^ion of the parliament, for making of * Sec 13 E1I«« 
hws in proceeding by bill, il is fo tranfcendent and abfolute, as it c^p. i. 
cnunot be confined cither for caufes or perfons within any bounds. ?^^*^v'5* 
Ot this court it is trulv laid : ^ Si antiqultatem fpe^es^ ejl "jctuftijfima^ ^^ „' 

fi dignitatem^ eft honwatiffuna^Ji jurijdi^ionem^ ejl capccijjima. bp f « 

* Huic ego iiec metas rerum^ nre fempora pom. < Virgil. 
Yet fome examples, are defired. ^ Daughters and heirs apparant «J Rot. par. 
of a man or woman, may by a«5l of parliament inherit during the 12 E.4,nu. 20, 
life of the anceflor. ' ' 21, 2z. the cafe 
« It mav adiuge an infant, or minor of full aee. ^J ^^^.^'T.m^ 
^ To attaint a man of treafon aUer his death. rence and Glo- 
8 To naturalize a n^eere alien, and make him a fubjcct borne, ceiler. 
^ It may baftard a childe that by law is legitimate, viz. begotten by c „* 
an adulterer, the liufband beipg within the foure ieas. duke of Buck- 
To legitimate one that is illegitimace, c.nd born before 'marriage ingham. 
abfolutely. And to \t<^\X\n\2Xt fecundum quid, but not fmpliciler. f 21 
As to take one example for many. Sir Ro. PIcfing- 

* Joi^n of Gaunt duke of Lancafler had by Katherine Swinford ««"• 

before marriage four ill gitimate children, viz. Henry, John, Tho- 3i H. 6. cap. i. 
mas, and Joane. And becaufe they were borne at ^ Eeauiort in 2 Thisisufuall 
France, they were vulgarly called Henry de Beaufort, &:c. John '" '"*"y pariia- 
before the 20 year of R. 2. was knighted, and Henry Lecam.e """"• 
prieft. 1 At the parhament holden 20 R. 2. thcking by acft of parlia- ^Rot.par.5&6. 
mcnt in forme of a charter doth legitimate thefe tnree foimes, and 1* • 6. the lo. mar- 
Joane the dauc;hter : and the charter beginneth thus. Rex^ ^^c. "^"^^^^^^^"^i^' 
chnriffimis confanguineis noftris ncbilibus viris ™ fokanv.i militi : 
n H^rico clerico : « noma ? domicello, ac dika^ nobis nobili miilini '' ^°^- P^^- ="""<* 
^ yohamue Beaufort domicella germanis prcecharijftmi aimtculi nofii, 
JoJiannii ducii Lancaftricv natis li^eis vcftris faLtem, ^c. Kos didi "^ B*aufort came 

to the Koufe of 
Lane, by m^- 
r-ige between Blanch of Artois, and Edmond firft earle of Lanca/l. ^ Rot. pat. »o R. 2. membr. t. 
^''^ This J. hn in anno 21 R. j. was crratpd carle ofSomcrfet, and marquifleDorfet. But in i H. 4, 
the martuJiQiip was taken away by parlinmenr, " Henry was after biffiop or Winchtfter, 

csrdinall of S. Ewfcby, ani chnnccllor of tnglami. * TMs Thomas was in 21 R. 2. created 
carle of Dorfet. P For domueliusy is'c. See Lamhe inter, e^es Edw. fo. 139. b. hJct ifijijcrett 

d«mic$ilui dt plur'tbut diamvSf quia filioi vccamus domicdloty Angii vero muJ/ot, m^ natot return. 
S Joane was fitft aanictl w Ralph the ftrfl earle of Wcftmerland, and after to RobcitFcfrcn lord of 


27 The High Court of Parliament. Cap* j . 

axMicnli nojiri genitoris vffirt frccibus inclinati^ v>hifcum qui (ut affcri* 
iur) dtfe^um nataiium ■patimin'i^ ut hiijufmodi dtfe^u (quern ejufq; qua- 
liiatis quafcunq; prafentibus habere volumus pro fnfficientur expreffis) mn 
Nota. ohjiante ad qiaecunque honor ii dignitatesy (* except a dignitate regali) 

praheminmciasy Jiatus, gradus^ et officia publka it privata tarn perpetua 
quam temporalia^ atq; feudaV ac nobiV quibufcunque nominihus nunru' 
pantuTy etiamji ducaius^ principat\ comitat\ baronia^ vel aJa feuda 
fuer'mt^ etiamji mediate^ vel immediate vel a nobis dependeant feu teneart~ 
iur^ praficiy promo/veri^ eligi^ cijfumi et admiiti, illaq; recipere, retinere, 
pcrinde libere et Ucite valeatis, ac Ji de legitimo thoro iiati exijleretis^ 
quibufcunque fatutii feu corf uetudini bus regni nojiri Angliie in contra • 
rium editisjtu obfervatis (qua: hie habemus pro tctaliter exprefjis) nequet^ 
quam ohfiantihus ; de plenitudine nofira regalis potefatis, ac de affenfu 
parliamenti r.oflri tenove prtcfentium difpenfamus. vofque ft 'uefrnm quetn^ 
lihet natalibus refituimus, et iegitimamus. In cujus rei tefimonium* 
Tefe rege apud Vl^efim. 9 die Febr. Per ipfum regem in f)ai liarr.ento. 

In this at'^ are divers things wo. thy of obfervation. i. The 
names whereby they were legitimated. 2. That this legitimation 
was not fjHpliciier^ hut fee undum quid : for th.y were legitimated 
and made capable of all dignities, except the royall dignity : fo as 
this legitimation extended not to make them or their pofterities in- 
heritable to the crown, but to all other dignities. 3. Tnat before 
tlieir legitimation, they were not created to any of their dignities, 
4. The briefe and artificial! penning of this legitimation, with 
generall words, as if the particularity were expreited, and with a 
brief non obfanie, and w^ith as little blemifli as may be. 5. And 
» Nota, pro co- hereby it appeareth, that * H. 7. being fon of Edmond of Had- 
rona. ham Carle of Richmond, and Margaret his wife, daug ter and heir 

Rot. pari, anno of John de Beaufort duke of Somerfet : which Margaret lineally 
I H. 7. not in (jefcended from the faid John de Beaufort, legitimated and made 
7V1.4. cap. 3. capable of all dignities, as is aforefaid, excepta regali dignitate^ that 
the like to H. 4. the beft title of H. 7. to the crown, was by Elizabeth his wife, 
the right of the eldeft daughter of E. 4. yet before this marriage the crown was by 
crovvne being ^^ ^f parliament intayled to H. 7. and to the heirs of his body, 
t en m tie e- ^j^^ Y\ahi of the crownc then beine in the faid Elizabeth, eldeft 
lip d3ut;ptcr and daughter oi ii. 4. 6. In this act the faid Thomas before his iegi- 
heirotVionel timation could not be called efqu ire, and therefore he hath this 
duke > f Ch- addition of * domicello^ either derived of the French word domoicelly 
■^"J^^" jj ^^ which fignifieth a young fouldier not yet knighted, or fignifieth 
J ' "^c H. 8. ' nobly born. And note, Johan. the daughter, had the addition of 
cap. 22. repeal de Beaufort and domiceUa in that fenfe alfo, 

by 2.8 H. 8. ^ And albeit 1 fiiide an attainder by parliament of a fubje»5l of 

cap. 7. & I Mar. ]^\^ treafon being committed to the tower, and forth-coming to 
c^^' '*i7i"^!-'* be heard, and yet never called to anfwcr in any of the houfes of 
ip principio. parliament, although 1 queltion not the power of the parliament, 
* See Hovenden, for Without queftion the attainder ftandeth of force in law : yet 
pag. 608. for this this I fay of the manner of the proceeding, Auferat oblivio, f po- 
word dcmiccl. ^^ , j^ ^^^^ utcunque flentium tegat : for the more high and abfo- 
tz H 8^^^ ^'■^^^ the jurifdi6tion of the court is, the more juft and honourable 

The attainder of it ought to be in the proceeding, and to give example of juflice to 
Tho. Cromwell inferiour courts. But it is demanded., lince he was attainted by 
euilc of i-ffex. parliament, what fhould be the reafon that our hidorians do all 
agree in this, that he fuffered death by a law which he himfelf had 
made. For anfwer hereof, I had it of Sir Thomas Gawdye 


Cap. I. The High Court of Parliament. 

knight, a grave and reverend judge of the kings bench, who 
lived at that time, that king H. 3. commanded him to attend the 
chicfc juftices, and to know whether a ivan that was forth-coming 
might be attainted of high treafon l)y |)arliamcnt, and never cal- 
led to his anlwer. The judges anfwerrd, that it was a dangeroiis 
queftion, and that the high court of pailiamtnt ought to give ex- 
amples to infcriour courts for proceeding according to juftice, and 
no inferior court could do the like ; and they thought that the high 
court of parliament would never do it. But being by the exprefle 
commandemciit of the king, and preflTed by the laid earle to 
jrivc a dlreift anfw'er: they faid, tliat if he be attainted by par- 
liamect, it could not come in queftion afterwards, whether he 
were called or not called to anfwer. And albeit their opinion was 
according to law, vet might they have made a better anfwer, for 
by the flatutes of Mag. Cart. ca. 29. 5 E. 3. cap. 9. & 28 E. 3. 
cap. 5. No man ought to be condemned without anfwer, &c. 
which they might have certified, but fada tenent tnulta^ qu^c fieri 
proliihentur ; the afl of attainder being pafled by parliament, did 
bind, as they refolved. The pr.rty againft whom this was in- 
tended, was never called in queftion, but the firft- man after the 
laid refolution, that was fo attainted, and never called to anfwer, 
was the faid earl of Eflex; whereupon that erroneous and vulgar 
opinion ainongft our hiftorians grew, that he died by the fame law 
which he himfelf had made. The rehearfall of the faid attainder 
can work no prejudice, for that I am confidently perfwaded, that 
fuch honourable and worthy members fhall be from time to time 
of both houfes of parliament, as never a^iy fuch attainder, where 
the party is forth comniing, (hall be had hereafter without hearing 
of him. 

* NuKquiJ lex nofira judlcat hont'mem^ n'fi prius n -tdierit ab ipfo^ et 
c^^overit quid faciatf Doth our law judge any man, before it 
hear him and know what he doth ? ^ It is not the manner of the 
Romans to deliver any man to die, before that he which is accufed 
have the accufers face to face, and have licence to anfwer for 
himfelf concerning the crinx laid againft him. 

' Ait Jofun ad Acab^ fili mi^ da gloriam Domino Deo Ifrae!^ et cm- 
fitcre mihi quidfeceris^ tie abfcondas, 

^ ivterrogntus Levita maritus muHcris inteifeSlie quomodo tantum 
fcelus perpetratum ej/ct, ^c. And the conclufion is after hearing 
and difcerning the caufe, confider, confuit, and then give ien- 

* And as evil was the proceeding in parliament againft Sir John 
Mortimer, third fon of Edmond the fecond earl of March (de- 
fccnded from Lionel! duke of Clarence) who was indi(fted of high 
treafon for certain words, in eflfet.^, that Edmond earl of March 
Ihould be king hv right of inheritance, and that he himfelf was 
next rightfull heir to the crown after the faid earl of March; 
wherefore if the faid earl would not take it upon him, he would: 
tnd that he would eoe into Wales, and raife an army of 20000. 
men, &c. which indiftment (without any arraignment or pleading) 
being meerly faigned to blemifii the title of the Mortimers, and 
withal being infutficient in law, as by the fame appeareth, was 
confirmed by authority of parliament : and the laid Sir John be» 
iag brought into the parliament without arraignment or anfwer, 




^ h'x. divlna. 
J"hn 7. V. 15. 
Dcut. c. 17.V. lo. 
& ca. 19. V. 15. 
Mat. Par. 18 Jo- 
hannis 273. 
Ir.civlU 'uitietur 
t: contra care ties 
ejfi in bomintm 
ahfentem rov, "jo- 
catum, cort'- 
v'tBum nee c<ir- 

Hereof fee fauU 

^ Afts 25. 16. 
Gen. 3, 9. Dixit 
dominus, Adam* 
ubi es ? Vide 
Ccn. tS. 21. 
II. 7. 8. 
<• Praxif fanfio- 
rum Jofua;. x^, 
i«, 23.&C. 
^ Jud. 20. 3. 
nu. 18. 

38 The High Court of Parliament. Cap. i. 

judgement in parliament was given againft him upon the faid in* 
didmcnt ; that he ftiould be carried to the tov\ er of London, and 
dnwn through the city to Tiborn, and there hanged, drawn 
and quartered, his head to be fet on London bridge, and his four 
(Quarters on the four gates of London, as by the record of parlia- 
ment appeareth. 

57?^ Proceeding in Parliament again/} Jbfenis, 

The ancient law and cuf!:ome of the parlianient was, that when 
ianr man was to be charged in parlirioient with any crime or of- 
fence, or mifdemeanour, thr kings writ was dire6ted to the flierif 
to fumnnon and injoin the party to appear before the king in the 
next parliament. For example. 
Pladtainparlia- Dcminus tex mandavit vic^ qvod aj/uTvphs fecuni quatuor de d^fere- 
mentodommi t'toribus et legr' miliilbus com'* Jui in prpfa ptrfona Jua accederet ad 
rf' Norcbam'pt" ^'^'^^olaum de Segrave^ et ipfum in pr^ifentia i-rn di^orum niiUnm fum- 
mojC et ex parte domini regis firmiter ei ifijimi^tref qucd ej/e' coram domino 
re^e in proximo pailiament^ fuo apu.l Wejim' in priino adventu domini 
re?.is '^bidcm ad audiendam vduniatem ipjius domini regis fupet hiis, qua 
tunc ibidtm proponere intendcrct verf. eum^ et ad fact end. m et rcdpien- 
dum idterius qticd curia domini regis confideraret in prrmijjts. Et vie'' 
mod:) mandavit quod affnmptis fecum Th-na IFrde^ Waltero filio Robertt 
r 39 3 ^^ Da'ventry. Roberto de Gray de Wollnjion^ et Radidpho de J^onnavill 

quatuor miVt\ ^c. in propria perf.najiia accefjlt apud Stoive ad ma- 
nerium pnedi^i Nicholai^ et in prajhitia torw^dem mihtum fiimmotC 
prcsdiSium Nicholaum^ et ei firmitcr hnjimxit quod ejjet coram domino 
rege in ijio parliamento nunc jvxtaformam et tettorcm mnidati prad\ ^'c. 
Placlta coram Almaricus dc Snn^o Amando^ 7na^iji€r 'Johannes de San^io Amctndo 

pirsTE^i' IJ^illielmm de Mmte Jcnto, Richar^ks Atichaw conjlabularius cafiri 
Rot. 19. Oxon. ^y^^^h Rich, de Hurle^ Thomas de Carkton c a pell anus, Johannes de 
Rosj Johannes de Trenbrigg, IFillielmus Atteivarde frater ejus, et Phi- 
lippus de Wigenton nttachiat' fuerunt per vie" in cajfro Oxon" per pra- 
cept^ domini regis refponfud eidem domino regi in parliamento fuo in cya- 
Jlinofanffi Math^i apoJloU anno rcgn'i fui iLyLxxW. fxper qu'ibnfdam cri^ 
minibus et tranjgrejjionibus i'ltfra/criptis, et inde per manucapfmiem fuf- 
, Jicient' adjarnaf coram ipjo domino regi hie ad hunc diem, Jcllicet e die 
Pafcha in xv. dies, ^c. 

Or a writ might be directed to the party himfelf, when any com- 
plaint was made againft him, De injuriis. gravaminihus, aut molejla^ 
tionibus, to appear in his proper perfon before the king and his conn- 
cell, &c. As for example : 
Placlta coram Dominus rex mandavit hrcje fiium Roberto df Burgherjk inhcec verba., 

rfgc apud Can- Edwardus Dei gratia, <ffc, Diledio etfideJifuo Rob rto de BwgherJ/i con- 
V^L tnno'l^-n'i fi^^"^^^'" ^^/' ' fi^' ^^''^^ "'' cuftod' fuo qulnque portunm, fahtnn. Quia 
regis e""" ■;cf'" dile^li's nobis in Chr i ft abbas de FaverffJiam et Robertas de Gurne ba- 
Confimile breve livus fuus ejifdem villa ccraffi covcilio ncfiro apud Eborum exijienle de di- 
ubi fupra eldem verfs avaminihus et -molcfiationious eis pervos voluntar^ et abfq; 
Roberto de caifa rationabili ',mdtipilcit(r illatis graves querimonias dcpofucrunt, pe- 

Burgierlh a tcntes inftanter ut els fuper hoc fieri faieremvs renicdlmn cp'^ortunum ; 

et baron um propter quod deaimus eis atem coram n: bis et conciko nrfiro a die PaJck. 

quinquepor- in XV. dics^ ^f. ad querelas fi^as pr^ a Lias tunc ofiendtnd\^ etadfa- 
tuura. eiend* 

Cap. I . The High Court of Parliament. 39 

dtitd' fiipa hoc uUerius et reiipumV qucd jujlhia fuaikrtt; vcbit mmn- 
dnmui^ quod in f,ro^ ria pcrfona vejira fitis CAam n-^bis et concilio mjiro ad 
diem prtediFl' frJifatis nhbati tt lalivis fuis fupcr pramijis rcfpotu' 
faBur* et recepiur' quod curia mjlra conjideraveiit in hac tarte^ (t th 
injuriisy gtaiaminrbus^ molr/iatio/tibus ft dijiridionibus indebitis pr^tfntis 
clb/iti et baHvis fuis interim inferendis penitrts deffiendo. Et hnhcn!iT 
ibihcc breve, Tejfe me i-fo npud Linlifcum xxx. die Januani^ anno re^ni 
m/hi xxx. f^irtute eujus brevisprttdiflui Rcberhis vcnit, et bieve illnd 
fnfulit ad diem in eodcm contcntum. Et prtedii^ut abbas 'venit et querelas 
ftcm prctulit in quodam rotulofcriptas^ et qras in crma hie querelando often" 
Mt et legcrefecit^ dd quibus prima eft ktc^ O/f. 

Now thty which abient thcmfelves ftiall be proceeded withall, 
vide 50 E. 3. nu. 37. Adam Buries cafe, 2. parte ptent. 21 R. 2. 
nu. 15, 16. Rot. Par. 17 R. 2. nu. 28. 11 H. 4. nu. 37, 38. 
15 H. 6. nu. 4. 33 H. 6. fo. 17. Sir John Pilklngtonscafe. 

And wliere by order of law a man cannot be attainted of high ^jj '«' ^^ ^ 
treafon, unlcfTe the offence be in law high treafon, he ought not and othc"?AnA 
to be attainted by generall words of high treafon by authority of f«thca£l'of the 
parliament (as fometime hath been nfedj but the high treafon ought attainder of tlic 
to be fpeciiilly expreiTtd, feeing that the court of parliament is the '°'"** Cromwel!, 
highefi: and moll honourable court of juflice, and ought (as hath uJbi* fu^JJ, " ' 
been faid) give example to inferiour courts. 

Tlicre was an atfl of parliament made in the 1 1 year of king Amifchicvoui 
H. 7. which had a fair flattering preamble pretending to avoid di^ terinTpr«mS; 
vers milchiefs, which were, i. To the high dilplealure or al- iniiH. 7. 
mighty God. 2. The great let of the common law, and, 3. The [ 40 ] 

great let of the wealth of this land : and the purvien of that aft 
tended in the execution contrary, ex dlamctro^ viz. to the high 
difpleafure of almighty God, the great let, nay the utter fubver- 
(jon of the common law, and the great let of the wealth of this 
land, as hereafter fliall manifefily appear. Which aft followeth in 
thefe words : 

ca. II. 

The king our fovereign lord calling to his remembrance 
that many good ftatutes and ordinances be made for the pu- 
nifhment of riots, unlawfull afiemblies, reteinders in giving 
and receiving of liveries, figns and tokens unlav^fully, extor- 
tions, maintenances, imbracery, exceflive taking of wages con- 
trary to the ftatutes of labourers and artificers, the ufe of un- 
lawfull games, inordinate apparell, and many other great en- 
ormities and offences, which been committed and done daily 
contrary to the good ftatutes, for many and divers behoofull 
confiderations feverally made and ordained, to the difpleafure of 
almighty God, and the great let of the common law, and 
wealth of this land, notwithftanding that generally by the 
juftices of the peace in every (hire within this realm in the 
open fedions is given in charge to enquire of many offences 
Committed contrary to divers of the faid ftatutes, and divers 
•nquefts thereupon there ftraiily fworn, and charged before 
the faid juftices to enquire of the premifTes, and therein to pre- 
fent the troth which any letted to be found by imbracery, 


II H. 7. ca. J. 


a Upon inform a- 
tiQtn w'Miout any 
*> By their dif- 
cretion, and not 
fecur.dum legem fef 
Angl. as all pro- 
ceedings ought 
to be. 

c Obfolete fta- 
tutes and all, and 
fpt-cially fuch as 
tinne had fo al- 
tered from the 
originallcaufe of 
the making 
thereof, as either 
they cuuld not 
at all, or very 
hardly beob- 
lerved and kept. 

[41 ] 

But it extended 
to a premunire, 
mifpiition of 
ireafon, &c. 

The High Court of Parliament. Cap. \, 

maintenance, corruption and favour ; by occafion whereof 
the faid llatutes be not, nor cannot be put in 'ue execution : 
for reformation whereof, for fo much that before this time 
the faid offences, extortions, conte vpts, and ether the pre- 
miiTes might not, nor as yet may be conveniently puniftied by 
the due order of the law, except it were fii fl foun-l and pre- 
fented by the verdi6t of twelve men thereto duly fworn, which 
for the caufes afore rehearfed will not find nor yet prefent the 
truth : wherefore be it by the advice and aflent of the lords 
fpirituall and temporall, and the commons in this prefent par- 
liament afTembled, and by authority of the fame ena6led, or- 
dained and eftablifhed, that from henceforth as well the juf-> 
tices of affife in the open feilions to be holden afore them, as 
the juftices of peace in every county of the faid realm, * upon 
information for the king before them to be made, have full 
power and authority ^ by their difcretion to hear and determine 
all offences and contempts committed and done by any perfon 
or perfons againft the form, ordinance, and eff'e^t of * any fta- 
tute made and not repealed, and that the faid juftices upon 
the faid information have full power and authority to award 
and make like proceffe agaiuft the faid ofi^enders and every 
of them, as they fhould or might make againft fuch perfon 
or perfons as been prefent and indi6led before them of trefpafie 
done contrary to the kings peace, and the faid oft'ender, or of- 
fenders duly to punifh according to the purport, form, and 
effVit of the ftatutes. Alfo be it enadted by the faid autho- 
rity, that the perfon which (hal give the faid information for 
the king fhall by the difcretion of the faid juftices content and 
pay to the faid perfon or perfons againft whom the faid infor- 
mation fhall be fo given his reafonable cofts and dammages in 
that behalf fuftained, if that it be tried or found againft him, that 
fo giveth or maketh any fuch information. Provided always, 
that any fuch information extend not to treafon, murder, or 
felony, nor to any other offence, wherefore any perfon (hall 
lofe life, or member, nor to lofe by nor upon the fame infor- 
mation any lands, tenements, goods or chattels to the party 
making the fame information. Provided alfo that the faid in- 
formations fnall not extend to any perfon dweUing in any other 
ihire, then there, as the faid information ftiall be given or made, 
faving to every perfon or perfons, cities, and towns, all their 
liberties and franchifes to them and every of them of right be- 
longing and appertainino;. 

1 H. S. ca. 6. 

By pretext of this law Empfon and Dudley did commit up. 
on the fubje6l uniufferable preiTures and oppreffions, and there- 
fore this ftatute was jultly foon after the deceafe of H. 7. re- 
pealed at the next parliament after his deceafe, by the ftatute of' 
1 H. 8. ca. 6. 

A good caveat to parliaments to leave all caufes to be meafured by 


Cap. I. The High Court of Parliament. 

the golden and freight mctwand of the law, and not to the Incer- 
tain and crooked cord of difcj-ciion. 

It is not aimoft credible tu forefee. when any maxime, or fun- 
damentall law of this realm is altered (as elfewhere hath b?en ob- 
served) what dangerous inconveniences doe follow, which moO 
cxprefly appearcth by this moll unjuft and flrange aft of 1 1 H. 7. 
for hereby not only Emplbn and Dudley tbemfclves, but fuch jm- 
tices of peace (corru,;t men) as they caused to be authorized, com- 
mitted mod grievous and heavy oppreliions and exadVions, grinding 
of the face of the poor fubje.^s bv penall laws (be they never fo ob- 
folete or unfit for the time) by m formation only without any pre- 
fentmcnt or triall by jury being the ancient birthright of the fub- 
je(fl, but to hear and determine the fame by their difcfetion, in- 
ili(f\ing fuch penalty, as the flatutes not repealed iinpofcd : rhefe 
and other like oppreffions and exA(ftions by or by the means of 
Empfon and Dudley and their inflrunients, brought infinite trea- 
fures to the kings colfers, whereof the king himfelfin the end with 
great grief and compunction repented, as in * another place we 
luve obferved. 

This ftatute of 1 1 H. 7. we have recited, and fhewed the juft 
inconveniences thereof, to the end, that the like fhould never 
hereafter be attempted in any court of parliament. And that 
others might avoid the fearfull end of thofe two time-fervers, Emp- 
fon and Dudley. Qui eorum vejiigia injijiunt, ewum exitus perhor- 

See the ftatute of 8 E. 4. ca. 2. the ftatute of liveries, an infor- 
mation, &c. by the difcretion of the judges to (land as an originall, 
&c. This act is defervedly repealed. 

Vide 12 R. 2. cap. 13. Punifliment by difcretion, &c. Vide 
5 H. 4. ca. 6. 8. See the * Commiffion of fewers. Difcretion 
ought to be thus defcribed. Difcrctio eft- difcernere per legem quid Jit 
jujlum. And this defcription is proved by the comqion law of the 
land, for when a jury doe doubt of the law, and defire to doe that 
which is juft, they find the fpeciall matter, and the entry is, Et fuper 
tola materia^ ^c. petunt dlfcretionem jujiiciariorum^ and fometime, ad- 
vif amentum et difcrstionem jiifticiariorum in pyamifjii^ ^c. that is, they 
defire that the judges would difcern by law what is juft, and give 
judgement accordingly. 


Sm the - 


1 . 
f.. , 

tion "r I , 
the maxiincj ut' 
ti>e liM. 

• In tfie c''»p- 
tcr of ihe Court 
of W'jrcis and 

* Lib. 5. fo. 
100. Ro( ki cafir. 
Lib. lo. Iy. ii3. 

PI. com. 348. 
Barnard > cai'e. 


ASls againjl the Power of the P arliament fuhjequent hind not, [ 42 ] 

An article of the ftatute made in 11 R. 2. cap. 5. is, that no iH. 4-nu. 144. 

perfon fliould attempt to revoke any ordinance then made, is re- 21 R.z. ny. 20. 

pealed, for that fuch reliraint is r.gainft the jurifdi£tion and power rcpralcd Sy 1 H. 

of the parliament, the liberty of the fubjeCt,' and unreafonable. ■♦• "• ^'^ g 

And likewife the laft will and teftament of kine R. 2. under the v;h"?"ji"*/ * 

great feal, privy feal, and privy fignet, \yhereby he devifed cer- 
tain mony, treafure, &c. to his fuccefTors upon condition to 
obferve all the a<fts and orders at the parliament holden in an^o 
: of his rci^n, was holden unjuft and unlawfujl, for that it rc- 
;:.a!ned the loveraign hberty of the kings his fucceflbrs. 

Si2ndr>' lords of parliament (but no biftiops) or fix of thfm, and 

certi;ta knights of ftiires of the commons or three of them are ; u- 

^^irjrfed by authority of parliament to examine, anfwcr, and plainly 

IV. iNiT. ' E 4etcrmLic 

na. 37. 

at R. 2. ca. 16. 
21 R. a. 11-.44. 

42 The High Court of Parliament Cap. 1^ 

determine all the petitions exhibited in that parliament, and the- 
matters contained in the fame by their good advice and difcretion, 

1 H. 4. nu. 70. ^^- T^^ ^"'^g'"' power of a parliament to be committed to a fevr is 

holden to be againft the dignity of a parliament, and that no fucb 
commiffion ought to be granted. 

2 H. 4. ca. 22. An aft in 1 1 R. 2. ca. 3. that no man againft whom any judg- 
nu 1a ^ ^* "^^"N o^ forfeiture was given fhould fue for pardon or grace, &c. was 

holden to be unreafonable without example, and againft the law and 
cuftome of parliament, and therefore that branch by authority of 
parliament was adnichaled, and made void. 
26 H, 8. ca. T. Alfo I find that in times paft the houfes of parliament have not 
A(\s of parlia- been clcarly dealt withall, but by cunning artifice of words utterly 
ment ought to deceived, and that in cafes of greateft moment, even in cafe of 
de^'f "ai'd^not ^^^^ ti'cafon, as taking one example for a warning in Uke cafe* 
cunningly and hereafter. 

darkly penned, K.i"g H. 8. after the clergy of England had in their convocations 

fpeciriUy in cii- acknowledged him fuprcam head of the church of England, thought 

minall caufcs. [^ ^o diiBcult matter to have the fame corroborated and confirmed 

by authority of parliament, but withall fecretly and earneftly de- 

ftred that the impugners r.nd deniers thereof, though it were but by 

woi^dy might incur the oifence of high treafon, and finding the 

one, that is, the acknowledgement of his fupremacy likely to 

*26H. 8, ca. I. have good pafTage, and having little hope upon that which he 

'I-26H. 13. found to effeft the other concerning high treafon, fought to have 

3 By word. &c. it pafle in feme other a6t by words clofely cowched, though the 
thisbyconftruc- former aft of fupremacy had been the proper place. * And there- 
tion referres to foj-g jn t|jg ^^ ^f recognition of his fupremacy it is enafted, that he 
t 6 2. caue. fliould have annexed and united to the crown of this realm the 
th?*uern or"^'^^ ^^^^ ^"^ ^^'^ thereof: f and afterwards towards the end of the par- 
prince* liament, a bill was preferred whereby many offences be high trea- 

cis ' » ,.,^^ ^0"? snd thereby it is enafted, That if any perfon or perfons by 
^Deprive, an OD- „ , ■ ^ --r ' 1 ti 1 1"^ 

fcure word, word or writmg, i praftile or attempt any bodily harm to the 

'1 Note this weird ^'"S' ^^^ ^ queen or tlieir heirs apparent, 2 or to <= deprive them or 

[title] in the ^^Y of theni, of fheir dignity, ^ title, or name of their royall 

former a£t. eftates, 3 or that the king fhould be an ® heretique, fchifmatique, 

*^ Parker b. of tyrant, infidell, or ufurper of the crown, &:c. that every fuch per-^n- fon fo offending fliould be adjudged traytors, 8ic. So as now by 

*ir"'/T ^ri' ^^''^ latter aft, he that by word or writing attempts to deprive the 

animowo mZ ^'"S ^^^^^^ ^''^^^ ^^ ^'^ ^""^^^^ ^^^^^ '^ ^ traytor, but the former zil 

fuUf tiondum ^ad annexed to the crown the title of the ftile of fupremacy, and 

enim quldjlbl hk therefore he tliat lliould by word or writing attempt to deprive th^ 

iK^-vus wllet titu. king thereof fliould be a traytor. And *" upon this law of 26 H. 8. 

lus,aut quorfum ^.^^^ j ^ ^^^ denying of the kings fupremacy divers fnffered death as 

fpexU,&c^' in cafe of high treafon, whereas all laws, efpecially penall, and 

"<■ But'this aaii- f^*^"^^P^^^y thofc that are penall in the higheft degree s ought to be 

ved noLlong, for ^9 plainly and perfpicuouffy penned, as every member of both 

t>Aice it was re- houfes may itp.derftand the fame, and according to his knowledge 

ptakd, %iz. by and confcience give his voice. ^ Er'it autem lex honeflay jufia, po£i- 

\ lu' ^"^^ htiis^ fecnn:ium naturain ef fecundnm corifuetudhiem patr'i^^ temper i que' 

' .'. conveniens^ necejpnia et utilis^ manifejia qiioque^ ne aliau'id per objcuri^- 

a qua 1 les f^f^.^ inc^uii!m captione * contrudatj nulla privaio commodo. fed pro com • 

laws ought to ... .{. ^ . .,/. r n- • -n n 

j^3v^_ viuni ctv:ufn iitilitate conjcripta^ tdco tn ipja conjiituttojie: ijia conji* 

^ Ifidor 2 Ety- deranda fvnt^ quia cum leges inftituta fuerint iron crit libermn arhitrium 

Hipl. judicate de ipfis^ ftd oportebit judicare fecundum ipfas-^ which be ex- 

*[ ^3 j celleiit 

Cap. I. The High Court of PariiamciiL. 4-5 

ccUcnt i-ulcs for all narliamrnts to follow. But the flatutcof 5 Eliz. J V.Wt. c», t. 
ca. I. hath concrrmnjj; the * fupremacy dealt plainly and perfpitu- ^^^^ Mt/jt/i 
oully as by the fame appcarcth. ,;^ ,• 'yfjj" /»' 

lilt ^«/r adilfuifi 
/.'■'/'■rrr,', ^c. Exod. Ji. IJ, l6. Mofei cuftoi utnufjuc lahtiia. Numb. lo. i, 2. A//« cuft.. ufi- 
I. ... .\r. Ju(hua 14. i. Congrtgainf J^fua^ &c. 28. dimi/ir. I Chron. 15. 4- ' Chron. i'>. 4 . 
Hix D.iviii. 2 Chron. 5. 2. RexSolotron z Chron. 29. 15. &c. Ezekiat. No'a. 1 S.>m. 15. ly. £/ 
«;r Samuel ad Saul^ ncnne cum parvmlut tfjct caput in tribubui fuHut ts f and the tribe of Levi wa» one, 
1 Maccab. 14. 44. Sec hereafter ca. 74. 


And albeit it appearcth by thefc examples, and many other that Subfequent par- 
might be broiiglit, what tranfcendent power and authority this court j^aTifnt' cannot 
of parliament hath, yet though divers parliaments have attempted thcTor^eT 
to banc, rcftrain, fufpend, qualifie, or make void fubfequent par- 43 g. 3. ca. i, 
liaments, yet could they never effe(5l it, for the hitter parliament 11 H. 7. ca. i. 
hath ever power to abrogate, fufpend, qualifie, explain, or make ^SH. 8. 00,17. 
void the former in the whole or in any part thereof, notwithftand- '., • * "v^V 
ing any words of reftraint, prohibition, or penalty in the former: for b! of Cant, cak! 
it is a maxime in the law of the parliament^ quod leges po/iaiores 
prions conir arias abrogant. 

JSfs of Parliament enrolled in other Courts* 

For the better obfervation of any aft of parliament enafted for Int. placita parlj 
th& commonwealth, or of a petition of right, or judgment in par- '^. ^- '• rot- 18; 
liament, or the like, and to incouragc the judges that the fame m\',j^°^ \l'_ 
may be duly executed, the fame may be inrolled in the courts of citumint. com. 
juftice in this manner. The tenor of the record muft be removed GIoc' & com. 
into the chancery by writ of certiorari^ and delivered into the kings Heref. k Eiltx 
bench by the hands of the chancelor or lord keeper, and fent by "■"■• 1°}'^^^^^' 
mittimus to the court of common pleas, and by like mittimus into j^n'o^rf irr'la 
the exchequer, and the king by his writ m^y command any court Mat^na Carta, 
to obferve and firmly to keep fuch an aft of parliament, as it ap- Pafch. 33 E. i, 
peareth by thefe two precedents. Ex Rotdo Clauf. anno zS E. i. ^°^- P^""- N'<^*'- 
m. 1. Dorf. Rex tliefaurat' et baronibus fuis de fcaccar'' falutem. Qttia ^^If^^^^ ^^^^^ 
volumus quod Magtia Carta domini Henrici quondam regis An^lice patris -pr 12 E 2 
nojiri de libertatibus Anglice quam confirma'vimns et etiam innovavimus to. 60. de irr. 
in omnibus et Jingulis articulis fuis firmiter et inviolahiliter obfervetur. Petition in par- 
F'obis mandamus quod cartam pr^di^layn in omnibus et Jingulis fuis J'=»^<?nt>a'^»"'*' 
articulis quantwn in vobis eji coram vobis in dido fcaccario obfervari fa- " '^'^' 
ciatis firmiter et teneri, T. R. apud DunfresT.'if. die Odobris. 

Rex jujiic^ fuis de banco falutem : Cum in alleviationem gravaminum 
quie populus r eg 711 no fir i occajione guerrarum had am ^ tolcravit., ac in 
emendationtm flatus ejufdem populi^ nee nm ut ex h:cfe exhibeat adnojlra 
fervicia promptioreniy nohifque in agendis nojlris libentius fitbfidium facial 
in futurum^ quofdam articulos eidem pofulo plurimum (annuente dyminoj 
proftituros tie gratia Jiofira fpeciali duxerimus concedendos. Kobis manda- 
mus quod didos articulos quos 'vobis mittimus fi^dlo nojlro cojifignatoT coram 
vobis in banco pradido quantum in vobis ejl juxta vim, formam et effec 
tum eorunlem obfervari faciatis firmiter et teneri, T. R. apud Dunfres 
^o. die Odciris. 

E a Evcfj 


the High Court of f'arliament. Cap. i . 

5 R. 1. ftat. t, 
c. 4 rot, ^>ar, 
31 H. 6. nu. 46. 
fines were fetjic. 

If any of the 
lords or com- 
xnons come not^ 
ice. they {hail 
be fined. 


v.. 3 E. 3. jg. 

Cup. If any of the 
lords or com- 
mons depart, c'cc 
they flialL be 
fined. I &z Ph. 
and M. rot. 48, 
ut fuD. 

• 5 R. X. ftat. z. 
ca. 4* 

Every Member of the Parliament ought to come. 

Every lord fpiritiiall and temporall, and every knight, citizen, 
and burgefTe {hall upon fiimmons Gorre to the parlianitnr, 'xcept 
he can reafonably, and honeftly excufehinifelf, or elfe he {hall be 
amerced, &c. that is, refpe<5lively, a lord by the lords, and one of 
the commons by the commons. 

By the {latuteof 6 H. 8 ca. 16. no knight, citizen or burgeflc 
of the houfe of commons fhall depart from the parliament without 
licence of the fpeaker and commons, the fame to be entrcd of re- 
cord in the book ot the clerk of the pariirment, upon pain to lofe 
their wages. 

If a lord depart from parliament without licence, it is an of- 
fence done out of the parliament, and is finable by the lords : and 
fo it is of a member of the houfe of commons, he may be fined 
by the houfe cd comrrvons. Vide i & 2 Ph. and Mar. coram rege. 
Rot. 48. divers informations by the attorney generall for departing, 
without licenfe, utfupra. 

• The punifhment of fhcriffes for their negligence in retorning 
of writs, or for leaving out of their retorns any city or borough 
which ought to fend citizens and burgefles. 

Advice concerning new and plaufible proje^s cmd offers in 

Secbcfort pa. 14. When any plaufible projecfl is made in parliament to draw the 
rur„ par. 13E. 3. lords and commons to aflent to any aft (efpecially in matters of 
weight and importance) if both hou'fes do give upon the matter pro- 
jelled and promifed their tonfent, it fliali be moft neceflary, they 
being trufted for the common -wealth, to have the matter projeded 
and promifed (which moved the houfes to confent) to be eflablifli- 
. cd in the fame a6l, iefl the benefit of the a6t be taken, and the 
matter projefted and promifed never performed, and fo the houfe* 
of parliament performe not the truft repofed in them. As it fell 
«ut (taking one example for many) in the reigne of H. 8. On the 
kings behalfe the members of both houfes were informed in parlia- 
ment, th?>t no king or kingdom.e was fafe, but where the king had 
three abilities. Firft, to live of his own, and able to defend his 
kingdomiC upon any fudden invafion or infurreftion. 2. To aide 
his confederatss, otherwife they would never a{ri{t him. 3. Tare- 
x^ard his well deferring fervants. Now the project was, that if the 
parliament would give unto him all the abbies, priories, friories, 
nunneries, and other monafleries, that for ever in time then to 
come, he would take order that the fame {hould not be converted 
to private ufe : but firft, that his exchequer for the purpofes afore- 
faid fliould be enriched. Secondly, the kingdome ftrengthened by 
z continuall maintenance of 40 thoufand well trained fou Idlers witb 
'fkilfull captains and commanders. Thirdly, for the benefit and eafe 
of the fubjeft, who never afterwards (as was projefted) in any time 
to come {liould be charged with fubfidies, fifteenths, loanes, or other 
Common aides. Fourthly, left the honour of the realme {hould re- 
ceive any <iin:iinution of honour by the di(Iblution of the laid mo- 


Cap. I . The High Court of Parliamcm. 44 

naftmcs, there being 29 lords of pBrliament of the abbots and priors 

(that held of the king^r harmiamy wiitreof more in the next leafe) 

that th- king wovild create a number of nobles, which we omit. 

The faid inonafteiies were given to the king by authority of divers «7H. S. demo- 

ails of parliamenr, but no provifion was therein made tor the (aid "*^^"«*» * 

proje<5>, or any part thereof; * ov\y aJfac'temV f«puTum\\\tit^(i{- SiH.S.caplJi 

icffions were given to tlie king his heirs and fuccelTors to do and •»7H.i.c».al« 

ufe therewith I is and their own wils, to the pleafurc of almighty 

God, and the honour and profit of the realmc. 

Now obierve the cataltropht j in the fame parliament of 
32 H. 8. when the grfat and opulent priory of Saint Johns of 3»H. 8. «. aj. 
Jerufalem was given ro the king, he demanded and had a fubfidie 5?'h. s cap 26 
both of the clergieand laity. And the like he had in 34 H. 8. and & a^ * 
in 37 H 8. he had another fubfidie. And fince the difiblution of 37^. 8.cap.24. 
the faid monalleries he exa£led divers loanes, and againft law re- 
ceived the fatiie. 

TVhom the King may call to the Lords Houfe <f Parliaments 

If the king by his writ calleth any knight or efquire to be a lord Rot.Clauf. in 
of the parliament, he cannot refufe to ferve the king there in com- ^°^^- '° "• 7« 
muni illo cmcilioy for the eood of his country. But if the king had ^ • ^l^^^- 

It J -.11 • 1 111 • 1 Writs to d:vcrt 

called an * abbot, prior, or other regular prelate by writ to the par- adcrd'mtm mHi^ 
liament to the common councell of the realme, if he held not of the uccdt balnea Juf- 
king perharoniam^ he might refufe to ferve in parliament, f becaufe cipiendjuxtaan- 
auoad feculariay \\e was mortuus in lege^ and therefore not capable to *^"om conjuetw 
have place and voice in parliament, unlefle he did hold per baroniam^ Jfi'atam!"" '"^ 
and were to that common councell called by writ, which made • of regular prc- 
him capable: aad though fuch a prelat regular had been often cal- lats that hold 
led by writ, and had de fa^o had place and voice in parliament, p*r baroniam. 
yet if in res veritate he held not per barcniam^ he ought to be dif- t L 45 J 
charged of that fervice, and to fit in parliament no more. ^I^^a'^T^^ " 

* For that the abby of Leicefter was founded by Robert Fitz- p,i"iamcnc"at'''' 
Robert carle of Leicefier (albeit the patronage came to the crowne York, an. 12 E. 
by the forfeiture of Simon de Mountford earle of Leic.) yet being 2. in the cafe of 
of a fubjecls foundation, it could not be holden per baroniam^ and *^ *'*'*°^ °^ ^• 
therefore the abbot had no capacity to be called to the parliament, ^^^^11^^^ 
and thereupon the king did grant, quod idem abbas et fuccejjores fui stanf. pT^cor. 
deveniendo ad par}} amenta et concilia nojiravc! h<£rcdum nojlrorum quiet: 153. a. 
Jim et exoneratiimperpetuum. * Rot. pat. an. 

^ De jure et c nfuetudine Anglia ad archidiaconatum Cantuarienfrm^ *^ ^ 3- P^^f- '• 
Ci/f. abbot s, prirres^ aliojq; prctlat^s qiiofcunque per baroniam d< d mino ^u"in d^rf °^ 
rege tenentes penint't in parliamentis rcgiis quibujcunque ut pares regni ,j g ,, part 2. 
pr^di^i perfonaliier interrjpy ibiq; de regni negotiis ac altis traSlati m. 1 1 Religi.ut 
confuet's cum C(Citris'didi rcgni paribus ac aliis ibidem jus interejjeridi , f' tvgnont per 
habenttbus confulere et trac^are, ordinare^ ftatuere^ et diffinite^ ac catera ^"'^y J'"'^ "- 
facne qu^e parlimmenti tempo e ibid, immunient faciend\ ^parlUiment'' "* 

No man ought to fit in that court of parliament, but he vd. ibid. 13 E. 
that hath right to fit there: for it is not only a perfonall offence in 3. part a. m. 
him that fitteth there without authoritv, but a publick offence J* ^ '* 
to the CDurt of parliament, and confequ'ently to the whole realme. j^^|;''*,** JJ *' 
But all the cafes abovefai 1, and others that might be remembered *rt!c* 34!* "' 
touching this point, as little rivers, do flow from the fountain of 
^'OiUis tcnendi parliamcntum^ where it is faid. Ad parliamentum Jum^ Modus tencndi 

E 3 ntoneri P«l. ca, 2. 


This is \nfra cx- 
pljined by the 
affife of C.a- 

loU. 2. cap. Ill 
Mat. Par. 97, 
-Affifa de Cla- 

Rot. pari, II & 
?i R. 2^ 

Cart, libcrtat. a 
rege Johanne 
anno 17 regni 
fui concefT. Mat. 
^ar. 343. . 


* Nflta, ^ 
knights fee Is the 
fervice of ^ 
knight, that is 
cf a man at 
e'rmf, or of war. 
Hereof fee the 
feccnd part of 
the Inftit. cap. 
de Mi lit; bus. 

1 E. z. Inter 
leges Edw. cap. 
ai lb. ca. 9. 

* I. Curiam ba- 
ronis. Glanv. li. 
8. cap. II, ace'. 
Bra'ft. li. 3. J 54, 
b. Camd, Efit, ' 

The PTigh Court of Parliament. Cap. i. 

v.cncri cf vejiire dehent raticre t emir a fuc^ omnes et Jinguli arch'iepifc'^ 
ep'ifcopi^ ahhates^ priores et alii majores clcri qui ienent per ccmltatum vel 
baroniam ratione htjufmodi ienur<^^ et nulli minor es^ niji eorum p-afentia 
necejjaria vel utilis reoutetur^ ^c. 

One rare and ftrange creation of a lord regular of parliament 
we cannot pafTe over, which M'as, that king H. 8. in the fifth year 
of his reign, by his letters patents under the great feale, did grant 
unto Richard Banham abbot of Tavellock in the county of De- 
von, being of his patronage, and to the fucceflbrs of the iaid 
abbot, ut eorum quilibet^ qui pro tempore ibidem fucrtt ahlns^ Jit et erit 
nnus de fpiritualibiii et religiojis dominis parliamenti mjiri.^ hceredum 
ct fucceJJ'oiurn vojiioriim^ gaudend' honor e^ privilegio et liber t at ihus ejuf- 

By that which hath been faid, it appeareth that this creation of 
a regular lord of parliament was voide, for that the abbot was 
neither bare, nor had baroniam, ^c. And if the king might create 
abbots or priors lords of parliament in this manner, by the fame 
reafon he might create deans and archdeacons lords of parliam.enr, 
which without queftion he cannot. 

By the a6t of parliament of 10 H. 2. called the afTife of Cla- 
rendon, it is declared, Ut pars confiietudinum et libertaUim antecej/o- 
rum regis, viz. Henrici primi et aliorum^ qute obfervari dcbait in regno 
et ab onmibus tencri, viz. archiepifcopi^ epifcopi^ et univcrfee pcrjaia 
regni, qui de rege tenent in capite habeant pojjeffivnes fuas de rege Jicut; 
baroniam, tt inde refpondeaiit jujliciariis et minijlris regis, et fequantiir 
et faciant omnes confuetudines regias, et Jicut ccetcri baroncs debcnt intc~ 
rejje judiciis curia regis cum barontbjis, qnoufq; perveniaiM' * ^d dimi-j 
Huticncm monbrorum vel ad mortem. So as by this aifl a tenure of 
the king in chiete was in equipage with a barony. 

And king John by his great charter of liberties made anno ij of 
his reigne, granteth, Qtwd faciemus Ju?nmoneri archiepijcopos, epif- 
cQpos, abbaies, comites, et majores barcncs regni Jingulatiih per liter as 
noftrds.^ Out of this claufe we are to obferve thefe things : Firft, 
that thefe barons called here majores, were lords of parliament, an4 
called thereuntp by the kings writs. Secondly, that they were, 
called majores comparatively, and that was in refpec^ of others, 
which were called barones 7nimres, or ncbiles minores, and were free- 
holders that * hold by knights fervice and efcusge. i. Servitiunt 
Jcuti, of three forts, viz. milifes, axmigeri, et geneioji, knights, ef- 
quires, and gentlehomes, or gentlemen. Thefe barones nwiores 
were lords of manners, and h?;d not the dignity of lords, but. had 
courts of their freeholders, which to this day are called court ba- 
rons, curic-e baroniar. Of this baron it is faid in that law made by 
king Edward before the conqueft : Barones qui Juam habent * cu- 
riam de Juis Imninihus, vide ant ut fic de eis agant, quatemis trga dcuni 
rcaium non incurrant, et re^.em 7ton ojjendaftt. 

Baro a bar, Ger?nanica lingua llberum et Jul juris Jignificat. i. which 
, agreeth well with that whicli hath been faid. 2'. I'hst baro major 
was calkd baro major regni, 3. That every greater baron was feve- 
rally fumironed by the kingi writ, v/hich ccntinueth to this dr.y. 


Cap. r. The High Court of Parliament. 46 

The Fees of the Knight Sy Citizen Sy andBurgeJfes of Parliament, 

Firft, for the knight of any county it is 4 s. prr diem, and fo it indorf. dauC 

hath been time out of niiiui, which is particulnrly exprelTed in an. 46 t. 3. nu. 

many records, but let us take one in hrrc verba. Joharmrs Shordch 4 R"'. ciauf, 

ilitum comitatus MidJ/i'/ex vcnientium n '.pari mcntum tent'' ahud j.„J *'!•'"_','• 

I . , • » 7 / »i !• aecxpenus miiir. 

■ in cro, ammarum ulttm pr^tteiit habet nllocatmiem 4 //. ct Rcgift. fo. 192. 

4 J. pro 2 1 diebus pro expcnfis fuis veniendo ad parliament^ pr^edi^' a. ace' 

ihid. mctandOi, et exindc ad propria redewiHo., capiendo pet diem 4^. Diota. VenUndo^ 

Tefle repe apud IVefim' 24 die Nuvcmb. anno 46. Kverv citizen and '""'''""/'» ;;'^'- 

burgefle is to have 2 s. per diem^ ut Jupra, mutatis mutandis. p^^ ^ g 

* Nota the writ de cxpe>,Jis militum^ (sfc. doth comprehend the nu. 45. 3(5 H. ?. 

fumme according to the abovefaid computation, and a commande- cap. 11. Sec the 

nient to the (heritfe to levie the fame ** de communitate comitatus ancient treatil.-, 
pticdi^' tarn intra libcrtates^ quam extra. (Civitatibus et burgis de 'f^ otenendt 

quibus cives et burgenjts ad parliamentum noftrum^ ^c. 'venerunt dun- ^ 

taxat exceptis.) The hke writs to the flierifFes de txpenjis civium et ^ ^^ ^^^l^^' 

burgenjium^ to levie the fame in cities and boroughs. of 12 R, 2. ca. 

'An. I R. 2. nu. 11. the commons petitioned in pariiament, 12. and fee 

that all pcrfons having lay fee might contribute to the charge of *3H* 6. ca. ir. 

the knights, and to all tallages. The kino- anfwered, [ i'he lords of ^Tl. ',^^ ^f''^'^ 

the realm wil not loie their old liberties,] note the writ is de com- fam«.. 

munitate, S.t 8 R. 2. tit. 

^ Alfo there is a writ in the Regifter de exptJiJis militis non levandis Avowrjc 260. 

mb hominib' de antiquo d'nico, nee ab nativis. '^ Other difcharges de what the com- 
^ c ;v, nion law was. 

expenjis mditum. 

<■ For the wages of the knights of the fliire of Cambridge fee ^°"' '^'^ ""^- 
the ftatute of 34 H. 8. cap. 24. Conjimile pro ivfula de Eh, ^c. V!d"fup?pa i 

8 H. 4. an. 14. of his reigne fummoned a parliament cro. Purifi- For the legail * 
cationis, and he deceafed 20 Martii following, fo as the parliament underftandingof 
was diffolved by his deceale. Thereupon it was a queftion, 'h'* "^^^^ com- 
whether the knights and biirgelTes fliould have their wages feeing "^°"^ 
nothing palled in that parliament. And it was relblved, that if "^ Rot. par i R 
upon view of the kings ^ records any like prefulents may be found, *• ""• '*• 
allowances of their fees dial be made. » Alfo the clergy were ^ Reg'ft- 261. 
contributory by reafon of thsir benefices to the expences of the p^^g^^' ^^ 
procurators of the clergy. e d • ^^ ' 

^ But chaplains which are mafters of the chancery and attendants iq2*^^iVr^2* 
at the parhament, flial not be contributory by reafon of their bene- ca. 12. 
fices to the expences of the clergy, as by the Regifter ubifupra ap- f 34 H. 8. ca. 24. 
pears: and this was by an ad of - ariiament made in • 4 ^.3. which 9 H. 6. iiu.46. 
in generajl words is recited in the writ directed to the arcn-deacon % Rot. par. 
for their difcharge. i H. 5. nu. 26. 

^ Nota, for prt- 
' Rcgift. 261. F. N. B. 229. a. k Vid. fup, pa. 4, 5. ♦ Pari. an. 4E. 3. a^iud Wintan, 
whereof there is no roll now remaining. 

E 4 tru 


The High Court of Parliament. Cap. i, 

See the 



5 R a. 

Vid. lu 
5. Rot. 

p. pa. 


7 R. 2. 


Dof. c 






Vi. ftal 


J Mar. 



35' 3<5, 

All this dnth 
s>pp!»rir in the 
rols of parli3f , 
jnent in all the 

Thefe two v/ere 
commonly called 
the earii ut 

Who be eUribU to be a Knight^ Citizen^ or Burgeffe of Parlia^ 


A knight baneret being no lord of parliament is eligible to be 
knight, citizen, or burgefle of the houfe of commons being under 
the degree of a baron, who is of the Joweft degree of the lords 
houfe. But Tnonias Camois was nor only a knight baneret, but 
a baron and lord of parliament in anno 7 R. 2. and ferved in that 
parliament as a baron of the realme, and therefore as of a thing 
notorious he was difchargad. One under the age cf 21 years is 
not eligible, neither can any lord of parliament lit there untill he 
be of the full age of 2 1 years. 

An alien cannot be eleded of the parliament, becaufe he is not 
the kings liege fubjeft, and fo it is albeit he be made denizen by 
letters patents, &c. for thereby he is made quaji^ feu tanquam ligeus : 
but that will not ferve, for he muft be Ugcus rcvera, and not quaji, 
Csff. And we have had fuch an one chofen and difallowed by the 
houfe of commons, becaufe fuch a perfon can hold no place of 
judicature ; but if an alien be naturalized by parliament, then he is 
eligible to this or any other place of judicature. 

But it is objeded that Gilbert de Umphrevill earle of Ancgos 
in Scotland, was called by the kings writ to the parliament in 
39 E. 3. by the name of Gilbert earle of Andgos : and in a writ 
of raviiliment of ward brought againft him, by the name of Gil- 
bert Umphrevill chivaler, he pleaded to the writ, that he was earle 
of Andgos not named in the writ : and for that he was fummoned 
to every parliament by the name of the earle of Andgos, and the king 
fent to him a writ of parHament under the great feale, as to a peer 
■ of the land, by judgement of the court the writ did abate. We 
have fearched for the truth of this cafe, and do finde it in the plea 
rolls in this manner. 

Richard de Umphrevill baron of Prodhowe and Redefdale in 
the county of Northumberland, had ifiue Gilbert, who after the 
death of his father w as a baron of this realm, and in the reign of 
H. 3. married with Mawde daughter and heir of the earl of And- 
gos in Scotland, who by her bad idue Gilbert, who was earle of 
Andgos as heir to his mother, and baron of Prodhow and Redefdale 
as heir to his father: he fat in parliament upon fummons by writ 
in 27 E. I. 28 E. I. 30 E. I. 35 E. i. i E. 2. and 2 E. 2. by the 
naiTe of Gilbert earle of Andgos. Robert his fonne fat in par- 
liament, arjio 12 E. 2. by the fame name of dignity, and fo forth, 
all E. the feconds reign. And Gilbert his fonne fat in parliament 
in 6 E. 3. and in every parliament following untill, and in 4 R. 2. 
by the famie name. And in Gilbert his fonne (who deceafed in 
anm [^ H. 6.) that firname of Umphrevil ceafed. Hereby it ap- 
peareth that the faid Richard Umphrevil and his pollerity, from 
whence foever they originally defcended, were liege Engliftimen j 
for if they had been aliens, they could not have enjoyed the lord- 
fhips of Prodhowe, Otterhorne, Harbottle, and Redefdale in Eng- 
land, nor the barony of Kime in Lancafhire, which the two laft 
Gilberts enjoved. And note, the book in 39 E. 3. concludeth, that 


Cap. I. The High Court of Parliament. 47 

Gilbert Umplircvil was fummoned to the parliament under the 
great fcale, come un pior M realme. 

A bilhop cled may fit in parliament as a lord thcneof. Hii. i8 E. i. 

ft). 4. nu, loj. 

Of KnightSy Citizens and Burgejfes of Parliament, 

None of the fudges of the kings bench, or common pleas, or • Rot, par. 

barons of the exchequer that have judiciall places can be chofen 31H. 6. av^Ji^ 

knight, citizen, or burged'e of parliament, as it is now holden, be- ?J»**- 

caule they be afliOants 'in the lords hoiile ; and yet you may reade in ^^°^f^ ^* ^^^^^ 

the *■ parliament roll, an. 31 II. 6. that Thorp baron of the ex- unleit Hc^ctc 

chequer was fpeaker of the parliament. But any that have judi- knight of tne 

ciall places in the court of wards, court of duchie, or other courts Aire, &c in the 

ecclefiafticall, or civill, being no lord of parliament, are eligible, bookofburgeffe* 

» None of the clergv, though he be ri the loweft order, arc !„f!!J!.? 
,. .. , , , . , *". . ° , rr c 1- ^ i_ y Commons, 

eligible to be kmght, citizen, or burgeue of parliament, becaufe , ^j^^ NoweU 

they are of another body, viz. of the convocation. ^^Cg ^^^ af^g, 

A man attainted of treafon or felony, &c. is not eligible: for wasdeaneof 
concerning the election oi two knights, the words of the writ be, Paul* being a 
Duos milites glaJiis cin^ios magis idoTieou et difcretos eligi fac. And Prebend. 1 Mar. 
for the election ot citizens and burg (Tes, the words ot the writ be, f 4.8 1 
Z)«oi, ^c, de di/cret'oribus et magis fufficientihus^ which they cannot 
be faid to be, v\ hen they are attainted of treafon or felony, &c. 

Maiors and bailiftes of townes corporate are elegible againft the 
opinion in Brook, anno 38 H. 8« tit. Parliament. 

Any of the profeflion of the common law, and which is in 
pra(ftice of the fame, is eligible. For he which is eligible of com- 
mon right cannot be difablcd by the faid ordinance in parliament Rot. par. 46 E. 3. 
in the lords houfe in 46 E. 3. unlefle it had been by aft of par- nu. 10. 
liament : and if it had been by authority of parliament, yet had « ^^^^ ^ 
the fame been abrogated by the faid llatures of 5 R. 2. flat. 2. cap. \j^\ 7 H. 4. 
2. and 7 H. 4. cap 1 5. which are generall lawes without any ex- ca. 15. 
cept'on, as hath been faid. 

At a ])arliament holden at Coventry anno 6 H. 4. the parlia- Rot. CUmf.ann© 
ment was fummoned by writ (and hv colour of the faid ordinance) 6 H. 4. 
it was foihidden, that no lawyer Ib'ould be chofen knight, citi- ^pett^°as*'a5-sl 
ten, or burgelTe, by reafon whereof this padiament was fruitleffe, \^ \x. this pL- 
and never a good law made thereat, and therefore called indoSlum liament of little 
parliamentum, or lack-learning parliament. And feeing thefe writs ornocffeft, «a 
were againft law, lawyers ever fince (for the great and good fervice ^^ ^^^ ^*'"' *P" 
of the common- wealth) have been eligible : for as it hath been RoJ^pari coE 3. 
faid, the writs of parliament cannot be altered without an aft of nu.83. an ordL* 
parliament : and albeit the prohibitory claufe had been inferred in nance that no\ 
the writ, yet being againft law, lawvers were of right eligible, and iheriffe fliould 
might have been elefted knight, citizen, or burgelTe in that par- *'*=J"^'" °*" 

liament of 6 H 4. , . , , , b"n'd no't'tbe 

By Ipeciall order of the houfe of commons the attorny generall fubjca until a 
is not eligible to be a member of the houfe of commons. ftatute made 

At the parliament holden i Caroli regis, the flieritfe for the ' ^*'' ^ ^' 
county of Buckingham was chofen knight for the county of 
Norff^. and returned into the chancery : and having a fuhpaux out 
of the chancery ferved upon him, at the fuit of the lady C. pen- 
fkftie pariiamento^ upon motion, he had the priviiedge of parliament 


48 The High Court of Parliament. Cap. i, 

allowed unto him by the judgement of the whole houfe of com- 

Whojhallhe Electors of KnighiSy Citizens j and BurgeJJeSy how 
and when : and of Eleilions, 

Who fiiall be electors, and who iliall be chofen, and the time, 
place, and manner of eleftion, and therein the duty of the flieriffe, 
you may reade in the pofitive lawes of 7 H. 4. cap 15. 1 1 H. 4. 
cap. I. I H. 5. cap. i. 8 H. 6, cap. 7. 10 H. 6. ca. 2. 23 H 6. 
cap. 15. 6 H. 6. cap. 4. &c. which need not here be particularly 
^EWz.cip. I. No knight, •■citizen or burgefTe can fit in parliament before he 

hath taken the oath of fupremacy. » 

n./e Rot. clauf. 7 R. 2. 7 O^ohris in dorf. Sir Thomas More- 
ville elefted one of 'the knights for the county of Hertford, ibid. 
James Beraers chofen to ferve in parliament, and both of them 
difcharged. See the record. 

No eie^lion can be made of any knight of the fliirc but be- 
tween 8 and 1 1 of the clock in the forenoone : but if the elecftion 
be begun within that time, and cannot be determined within thofc 
hours the election may be made after. 

For the elecfMon of the knights, if the party of the freeholders 
demand the poll, the flierifl'e cannot deny the fcrutiny, for he can- 
not difcerne who be freeholders by the view : and though the 
party would wave the poll, yet the flieriife mufl proceed in the 

If the king doth newly incorporate an ancient borough (which 
fent burgefles to the parliament) and granteth that certain fele»5led 
burgelTcs fliall make eleAion of the burgefles of parliament, where all 
the burgelfes elected before, this charter taketh not away the elec- 
tion of the other burgefTes. And lb, if a city, &c. hath power to 
make ordinances, they cannot make an ordinance that a lefle num- 
ber fliall ele6f burgelfes, for the parliament then made the eledion. 
[ 49 ] before : .for free eleftions of members of the high court of par- 
' liament are pro bono publico, and not to be compared to other cafes, 
of eleftion of maicrs, bailifles, &c. of corporations, &c. 
]lo par. 5H.4. If one be duly cleilcd knight, citizen, or burgefTe, and the 
nu- 32* llieriffe returne another, the returne mull: be reformed, and amend- 

ed by the flieriffe: and he that is duly ele»5led mufl be in- 
ferted : for the election in thefe cafes is the foundation, and not the 

By originall grant or by cuflome, a feleded number of burgefles 
■ may ele6t and binde the refidue. 

Concerning Charters cf Exemption, 

The king cannot grant a charter of exemption to any man to be 
freed from ele<ftion of knight, citizen, or bu'rgeffe of the parlia- 
ment (as he n ay do of fome inferiour oflice or places) becaufe the 
Pafch. 3 E. 3. elections of them ought to be free, and his attendance is for the fer- 
fo. 19. tir. Co- vice of the whole realme, and for the benefit of the king and his 
ron. F. 161. people, and the whole common-wealth hath an intereft therein: 


29 H. 6. 

cap. 3. 

Rot. par. 

1 part. 

I.E. 3. 

Koi. pat 

4 part. 


T. 15. 

pre* Do. 



Rot. pat. 


part 2. m. i. 

pro Dom 


39 E. 3. 


34 H. 6. 


33 a 6. 


Cap. I . The High Court of Parliament. 49 

and thprcforc a charter of exemption that king H. 6. had made to 
the citizens of York of exemption in that cafe, was by a*.^ of par- 
liament ena«^ed and declared to be voide. And though we finde 
fonic prefuiciits that lords of parliament have fued out charters of 
exemption from thrir fervice in parliament, yet thofe charters are 
liolden to be void : for though they be not eligible, as is aforefaid, 
yet their fervice in parliament is for the whole realme, and for the 
benefit of the king and his people, of which fervice he cannot be 
exempted byany letters patents. And if he hath lafam bhantafjam^ 
or be extremely fick, or the like, thefe be good cauies of his excufc 
in not comming, but no caufe of exemption, for he may recover 
his memory and health, &c. So as the faid prefidents were grants 
ile faSloy not de pre : for if the king cannot grant a charter •( ex- 
emption from being of the grand aliife in a writ of right, or of a 
jury in an attaint for the milchiefe that mav follow in thofe private 
a(ftions, a/ortioriy he cannot grant any exemption to a lord of par- 
liament : for his fervice in parliament is publick for the whole 
realme. But if any lord of parliament be fo aged, impotent, or 
fick, as he cannot conveniently without great danger travel! to 
the high court of parliament, he may have licenfe of the king 
under the great feale to be abfent from the fame during the conti- 
nuance or prorogation thereof: but if the rehearfall be not true, or 
if he recover his health, fo as he become able to travell, he muft 
attend in parliament. Or without any fuch licenfe obtained, if he 
be fo agf'd, impotent, or fick, as is aforefaid, and yet is amerced 
for his abfence, he may reafonably and honeftly excufe himfelfe by 5 R. 2. c. 4; 
the ftatute of $ R. 2. ftat. 2. 

After the precept of the fheriffe directed to the city or borough 
for making of eleftion, there ought/ecundum legem et confuetudinem 
parliam. to be given a convenient time for the day of the elecflion ; 
and fufiicient warning given to the citizens or burgefles that have 
voices, that they may be prefent : otherwife the election is not 
good, unlefle fuch as have voycesdoe take notice of themfelves and 
be prefent at the ele»5tion. 

Any eleftion or voyces given before the precept be read and pub- 
liflied, are void and of no force : for the fame eleftors after the pre- 
cept read and publiflied may make a new ele6tion and alter their 
voyces, fecum/um legem et confuetudinem parliarnenti. 

Thus much have we thought good to fet down concerning 
knights, citizens, and burgeffes, becaufe much time is fpent in 
parliament concerning the right of cleftions, &c. which might more 
profitably be imployed pro bono publico. 

Now to treat more in particular (as it hath been much defired) Sec before pag. 
of the lawes, cuftomes, liberties and priviledges of this court of 24, 25. 
parliament (which are the very heartftrings of the conimon-wealth, 
whereof we have remembred fome : and you may fee fome * few * »6 R. 2. rot. 
other examples in the margent too long here to be rehearfcd) f would '^'^"^- '" '^"'■'"• 
take up a whole volume of itfelfe: certain it is, as hath been faid, n"u"7" * 

that curia parliamcnti fuis propriis legibusfuhjijlit, i H. '4. nu. 143. 

All the juflices of England and barons of the exchequer are af- 2 W. 4. nu. n, 

iiftants to the lords to informe them of the common law, and there- * ^- ■»• <^»- »• 


Indtmnity det 
Eeifntours & commons, i H. 5. nu. 9. cap. 1. 4 H. 8. ca. 8. vcrf. fincra. a gcnerall law. 6 H. 3 



The High Court of Parliament. Cap. i . 

» Rot. pari. unto are called feverally by writ. * Neither doth it belong to them 
L H^6."n"u' \\ ^^^ ^''^^^ ^^^" ^^'^) ^^ i"^g« o^ any law, cuftome, or priviledge of 
27H. 6. nu.18. parliament. ^ And to fay the truth, the lawes, cuftomes, liber- 
31H. 6. nu.26, ties, and priviledges of parliament are better to be learned out 
^7- Lamb, hter of the rols of parliament, and other records, and by prefidents 
f$ru,ca. 3. "" ^"^ continuall experience, then can be exprefled by a^y one mans 

eapmla 'venun^ Pgy ^arios h^us le?em experientia fecit. 

tibusy^fivejum- , . . ... , 

TKonitifuntf Jive Mutta muito exercitamentis faciliusy quam regulis percipus* 

ftr je quid agew 

dum babuerintj fit pax. 

Rot. par. 45 E. 3. 

ru. 32. 

The decay of the 


The kings navy 
exceeds all 

* Patricuis, 
lib. 5. De infti. 
tutjone leipub- 

Of the burgefes 
ef parliament. 
About 300 feC 
fionb of pari'u- 
menr fince the 
cone J:- if. 

Confuhations in P arliament for Maintenance of the Navie, 

In many parliaments confultations have been had for the main* 
tenance of the navie of England, and remedies provided againft de- 
cay of the fame : as taking one example for many. In the parlia- 
ment holden in amio 4; E. 3. the commons amongft their petitions 
do affirme, that the decay of the navy doth arife by three caufes. 
Firfl, for that fundry m.ens fhips are feifed for the king, long be- 
fore they ferve, whereby the owners are driven at their charges to 
find their mariners, to their undoing. Secondly, for that mer- 
chants, the nourifhers of the navy, are oft reftrained in their fliip- 
ping, whereby mariners are driven to feek other trades and livings. 
Thirdly, for that the maiflers of the kings Ihips do take up mailers of 
other fiiips as good as their felves are, whereby the moft of thofc 
fliips do lye ftill, and the marine-rs enforced to feek new livings : 
whereof they prayed remedy. To this petition of right the kingj 
royall anfwer was, That he would provide remedy. 

The kings navy exceeds all others in the world for three things, 
viz. beauty, Ilrength, and fafety. For beauty, they are fo many 
royall palaces : for flrength (no part of the world having fuch iron 
and timber as England hath) fo many moving caftles and barbi- 
cans : and for fafety, they are the moft defenfive wals of the realm. 
Amongft the Ihips of other nations, they are like lions amongft filly 
beafts, or falcons amongft fearfuU fowle. 

In the reign of queen Elizabeth (I being then acquainted with 
this bufinefle) there were 33 befides pinnaces; which fogardedand 
regarded the navigation of the merchants, as they had fafe vent for 
their commodities, and trade and traffick flouriftied. A worthy . 
fubjed for parliaments to take into confideration, and to provide re- 
medy as often as need fl all require. For navigation, fee Gen. 
6. 14. Sapient 14. 6. * Remp. qnofi navem cxijiimare debemus^ 
qu<^ cmninm mambus cfficioq; indiget^ ^c. A leak in a fllip is 
timely to be repaired: for as it is in the naturall body of mas, . 
{o it is in the politick body of the common-wealth. Non mor- 
bus in phrifq; fed morbi wgleBa curatio corpus interfich. And thus 
much for confultations in parliament concerning the navy of Eng- 

Seethe firft part of the Inftitutes. Seil. 164. verb. ]Fe'igne les 
burgefes al parliamfnt.] And there have been fince the con- 
quelt about 500 feflions of parliament, whereof divers are not- 

In perufing over the rols of parliament we find firft divers a6ls of 


Cap. I. The High Court of Parliament. -fjt 

parliament in print that arc not of record in t!tc roll of parliament. 
Secondly, many a^s of pariiamr nt tliat be in the rols o . arlia- 
mcnt, and never yet printed. Thirdly, di crs ciaufcs otniitcd in 
die print which arc in the parliament roll. F^jurthly, more in the 
print than in the record. Fifthl , many variances btt.veen the 
print and the roll. Sixthly, ftaiutes rci>€aled or difatfirmed, and 
yet printed, &c. Seventhly, whole parliaments omitted out of 
the print. Eightly, whole parliaments repealed, or a great part. 

And of every of thefe taking fome examples ; for to handle all 
at large would require a whole treatifc, which (we having broken 
the ice) fome good man and lover of his countrey (we hope) will [ 5' ] 

undertake to wade thorow 

As to the firft, thefe are in print, and not of record, * 20 E. 3. To the firi>. 
the oath of the judges. 27 E. 3. cap. 4, 5, 6, 7, 8. concerning the * See the third 
Alneger and Gafcoigne wines. 37 E. 3. cap. 7. touching ftlver ra"o/theln- 
veflell. 37 E. 3. cap.- 19. of hawkes. 2 R. 2. cap. 5. of nefwes, ft^"te»,D*w 
Vid. II R. 2. II. 2 R. 2. cap. 3. of fained guifts. 7 R. 2. cap. '"^''J'*^'''' 
1$. againft maintenance. 9 R. 2. cap. 3. of error and attaint. 
II R. 2. cap. 4, 5, & 6. not of record. 13 R. 2. cap. 1 1. touch- 
ing clothes. 13 R. 2. cap. 19. concerning falmons. 13 R. 2. cap. 2. 
touching pilgrims. 13 R. 2. cap. 15. concerning the kings caftles 
and gaoles. 14 R. 2. ca. 7. concerning tinne. 17 R. 2. cap. 8. of 
unlawfull aflemblies. 17 R. 2. cap. 9. concerning falmons. 27H. 6. 
cap. 3. touching imployments, &c. 

As to the fecond : thefe a6ts of parliament are of record, and not To the fecond. 
in print, an. 11 E. 3. the creation of the duke of Cornwall, &c. See the Princes 
by authority of parliament. 3 R. 2. nu. 39. concerning juftices of cafe, lio. 8, to.i^ 
peace, a profitable law for them. 8 R. 2. nu. 31. concerning the 
jurifdi<5tion of the conftable and marrtiall. 20 R. 2. concerning 
the legitimation of the children of John of Gaunt duke of Lane, 
by Kath. Swinford. 5 H. 4. nu. 24. a commiflion or aft of par- 
liament for arraying and muftering of men. 8 H. 4. nu. 12. 
clergy exempted from arraying and muftering of men. 1 1 H. 4. 
nu. 28. againft bribery and brocage in great officers, judo^es, 
&c. II H. 4. nu. 63. concerning attornies, &c. 6 H. 6. nu. 27. 
that a queen of England dowager, (liall not contraft her felfe or 
marry without the kings Ucenfe. 9 H. 6. nu. 25, concerning fees 
of privy counfellors, and other head officers. And very many 

As to the third: in thefe afts of parliament divers claufes are Tothethirc*; 
omitted out of the print, which are in the parliament roll. 36 E. 3. 
cap. 3. in the adt of purveyors, Sec. in the claufe of the penalty, 
the fteward, treafurer, and controller are exprefly named, biit 
omitted in the print. 2 R. 2. Hat. 2. cap. 4. in confirmation of li- 
berties, &c. faving the kings regality, is omitted. 13 R. 2. cap. i. 
concerning prefentations of the king, the laft claufe, concerning 
ratifications of the king, is omitted. 13R. 2. cap. a. touching pro- 
vifions. 14 R. 2. cap. 4. nu. 9. concerning regrators of wools, 
high prices omitted in the print. 1 7 R. 2. cap. 4. of malt, leaveth 
out Hcrtfordfhire. 2 H. 5. cap. 3. nu. 38. concerning enquefts, 
2 H. 5. ca. I. nu. 30. concerning juflices of peace. 9 H. 4. cap 8. 
nu. 43. concerning provifions. 8 H. 6. nu. 50. cap. 10. concern- 
ing proces during the kings will, omitted in the print. 

Ai to the fourth ; in thefe there is more in the print then 'n the T» thcfonnlv 
4 rtMrd. 


to the fifth. 

To the fixth^ 


Rot. par. II H.^. 
nu. 12. vide 
7 H, 4. nu. II. 

To the feventh. 

To the elj.;hth. 
a Where the 
printed book 
fuppofe that 
tl-icre was ano- 
ther parliament 
in anno 11; E. 3. 
whereby the 
former flstute 
was repealed, 
the truth 5?, the 
parliament was . 
] 5 Palch. anji(* 
17 E. 3, 

The High Court of Pariiament. Gap. ri 

record. 9 H. 4. cap. 8. nu. 43. touching provifions. 2 H. 5. ftat. 
2. cap. 3. nu. 38. touching jurors, &c. 

The fifth: In thefe the print vary from the record in fome 
materiall thing. Generally in all the ftatutes made concerning 
provifions, or other the iifurpations of the pope, the biting and 
bitter words are left out in the print. As to take an example or 
two. Vi. 38 £. 3. in print, cap. i, 2, 3, 4. and in the roll, nu. 9. 
&c. 3 R. 2. cap. 3. in print. Rol, nu. 37. &c. the bifliops being 
lord chancellors. 9 R. 2. nu. i. the print mifl:^ke the beginning, 
of the parliament, viz. Monday after S. Luke, for Friday. 9 H. 4.' 
cap. 2. nu. 26. concerning attornies, &c. A roll of parhament 
intituled 14 E. 4. where it fliouldbe 13 E. 4. 9 H. 5. cap. 2 & 3. 
printed as perpetuall in fome books, where they were to endure 
but untill the next pariiament. 

The fixth: ftalutes pretended to be enabled, and after difaf- 
firmed, and yet printed. 5 R. 2. cap. 5. flat. 2. touching inqui- 
ries of herefies. j^nm 6 R. 2. nu. 52. difaffirmed by the commons, 
for that they protefi:ed it was never their meaning to be jufi:ified, 
and to binde themfelves and their fucceflbrs to the prelats no more 
then their anceflors had done before them. Robert Braibroke 
bifliop of London was then lord chancellor. By this and that which 
followes, it appearetb how necefiary it was in thofe daycs to have 
fome of the commons to be (as hath been faid) at the ingrof- 
fing of the parliament rols, as appeareth rot. pari, anno 6 H. 4. nu, 
56. 7 H. 4. nu. 65. &c. ct 7nodo tenaicP pari. cap. 8. 2 H. 4. cap. 
15. difavowed by the commons, and yet the pretended aft printed 
2 H. 5. cap. 6. again ft preachers, dila vowed the next parliament 
by the commons, for that they never alTented, and yet the fuppofed 
aft printed. 

• The feventh : whole parliaments omitted out of the print, 
wherein there be many notable things to be obferved. an. 3 E. 2. 
a parliament holden at Weftm. 3 Sept. Dorf. clauf. 2 E. 2. 
m. 14. f&: 22. anms 4 E. 2. apud London. Z, E. 2. apud Wejlm. 
6 E. 2. ib. Ifis. 7 E. 2. ib. 8 E. 2. apud Eborum. 11 E. 2. apud 
W^ejTm. 16 ¥,. 2. apud Rippon^ et pc/iea apud Eborujn. an. 6 E. 3. a 
parliament holden at Weftminfier the Monday after the feaft of S. 
Gregory, anno 8 E. 3, a parliament holden at York the day be- 
fore the feaft of S. Peter m cathedra, anno 11 E. 3. at Weftm, 
whereat the prince was created duke of Cornwall, &c. an. 13 E. 
3. holden at Welim. in 15 Mich. 2a E. 3. at Weftm. the Monday 
next after the week in the middeft of Lent. 29 E. 3. a parliament 
holden at Wefrm. the day after S. Martin. 40 E. 3.' at Weftm. the 
Monday after the invention of the crofte. 7 R. 2. at Weftm. the 
Fridriy after the feaft of S. IMark, &c. 

The eighth: whole parliaments repealed and made void by fub- 
fcquent parliaments, i H. 4. cap. 3. repealed. 21 R. 2. which had 
repealed the parliament of 1 1 R. 2. and reviveththe fame. By 39 
H.6. cap. I. a pailiament holden at Coventry ^z/;w58 wholly 
repealed. Rot. par. 12 E. 4. nu. A whole parliament holden anm 
49 IL 6. et reodeptionis Ytgm fui primo^ is repealed and reverfed. 
^ Fide the parliament of 15 E. 3. repealed, rot. pari. a:tno 17 E. 3. 
nil. 23. For there it is agreed that the ftatute of 15 E. 3. (liall be 
utterly repealed, and lofe th.e name of a ftatute, as contrarie to the 
laws and prerogative : and for that foiiie articles there made r.4'e 
' ■ ■ yea- 

Cap. 2 The Councell Board. 

reafouablc, It is agreed, that fucli articles and others agreed in 
this parliament fliall be made into a ftatule by tiie advice of the 
ju ft ices. 

* Many records of parliament can hardly be imderftood, unlefle 
you joyn'e thereunto the hiftory of that time. For example : « the 
cardinall of Winclicfter, uncle of the king, declareth in open par- 
liament, that he being in Flanders, in his journey to Rome, re- 
turned back of his own will to purge himfelfe of a bruit, that he 
flioulcl be a traytor to the realm, wliereof (no accufation being 
againft him) he was cafily purged by the duke of Gloc. proteftor, 
by the kings commandement. But adde the hiftory thereunto, 
that the cardinall having certain of the kings jewels in ga^e, meant 
to have them brought after him : but thefe jewels being arrefted 
and ftay'd at Sandwich by the kings commandement, and the 
bruit hereof comming to the cardinals eare (he being therewith ex- 
ceedingly troubled) for the recovery of them, returned in poft to 
the parliament. Now after he was purged of the bruit of fup- 
pofed treafon ; touching the faid jewels flayed at Sandwich to the 
great hindrance of the cardinall, as he complained. It was on a 
motion on his behalfe, ordered that the cardinall fliould pay to the 
king fix thoufand pound more for them, and lend to the king thir- 
teen thoufand pound, which was done. 

And for a concliifion hereof, and of this chapter of the high 
court of parliament, it is to be remembred, that by the ftatute of 
42 E. 3. cap. I. all llatutes are repealed that are againft Magna 
Carta, or Carta de Forefta. 

See hereafter cap. 75;. how and in what manner parliaments be 
holden in Scotland. And cap. 77. how and what manner parlia- 
ments be holden in Ireland, and how biis fhall pafle there, never 
before this time publiflied, as we know. 


*» Hiftoriej 
fometimc ex-' 
plaine records of 
c Rot. pari. 
10 H. 6. nu. 14; 

This appeareth 
in the i'ame par- 
liament nu. 15. 

Parliaments In 
In Ireland. 



Of the Councell Board, or Table, 

^T^ HIS Is a mofl noble, honourable, and reverend afTembly of 
'■' the king and his privy councell in the kings court or palace : 
* with this councell the king himfelf doth fit at his pleafure. 
Thefe councellors, like good centinels and watchmen, confult of, 
and for the ^ publique good, and the honour, defence fafety, and 
profit of the realm. ^^ cnnfuiendo^ fecundHm excellentlam^ it is' called 
the councell table. *= private caufes, left they fliould hinder the 
niiblique, they leave to the juftices of the kings courts of juf- 
''ce, and medille not with them : they are called concilium regis pri. 
vatum^ concilium Jecrctum^ et continuum concilium regis, ** The num. 

Ro^ par. 1 R. 2. nu. 87. 112. Rot. par. 7 H. 4. nu. 41. 
par. CO E. 3. nu. lo. 12. i R. 2. nu. 4. Rot. pat. i parte, 
66, 67. I. parte of th- Inftitutes, fcft. 164. rot. clauf. 16 E. 2. 
htf dt magnt) et dejtc'rtto ctmlk rtgU jurat\ 

* Rot. clauf. 

12 E. 3. parte 2. 

m. 19. 39 E. 3. 

fo. 14. rot. pat. 

1 R. 2. parte 

m. 16. 8 H. 4. 

nu. 7^) &c. 

Rot. par. X H. 6. 

nu. 15 

^ Pio bono pub- 

« ao E 3. ca. I. 

25 E. 3. ca. 1. 

ftjt. 4. 42 E. 3. 

II H. 4. mt. 14. 23. 47. d Rot. 
TO. 10. Rnr. pari. 7 H. 4. 31. 41. 
m. 5. in Do.-f. Veiu dt btllo mtnt$ 



The Councell Board, 


Stanf. 72. F. 

Senatores junt 

partes corporis 


Rot. par. 3 H. 6. 

nu. 3. 

* Inas ca. 46. 

^ Alvredusc. 15. 
Hugh Spencer 
the father, and 
Hugh the fon 
ievili CQunfellors. 


Magna Carta. 

ber of them is at the kings will, but of ancient time there were 
twelve, or thereabouts. Of the diver/jry of the kings feveraU 
councels, you may read in the firft part of the Inftitutes, feft. 

See Rot. pat. 44 E. 3. parte 1. m. 1^. de concilio regis 

King E. 3. would have his councellors to have four properties. 

1. That he be parens Jul ^ knowing that he would never be provi- 
dent for him, that would not be a good huiband for himfelf. 

2. That he fhould not be cupidus rei alienee, no covetous, nor 
greedy man, for ei nihil turpCy cui nihil fatis. 3. That he fhould be 
avarus reipuhUca', covetous for the kings treafure and common- 
wealth : and 4. That htfuper omnia Jit expertus ; in what place the 
king (hall employ him, that he be expert; for great offices are 
never well managed by deputy, where the officer himfelf is but a 

To thefe councellors all due honour and reverence is to be 
given, for they are incorporated to the king himfelf, and bear 
part of his cares, they are his true treafurers, and the profit- 
able inttruments of the flate. Such honour was given to coun- 
fellors of ftate in ancient time, « that if one did ftrike in a fena- 
tors or councellors houfc, or elfewhere \t\ his prefence, he was 

*" See Vet. Mag. Cart. fo. 51. 2. parte. Hugh Spencer the father, 
lord Spencer earl of Winchefter, and the kings chamberlain, and 
Hugh his fon earl of Gloc'' were adjudged in parliament to be ex- 
iled, &c. amongft other articles, fix were. Firfl, for that they by 
their evill covin would not fuffer the grandees of the realm, nor 
the kings good cmmcellors to fpeak with or come neer the king, 
or to give him good councell, or that the king might fpeak with 
them, but only in the prefence or hearing of the faid Hugh the 
father, and Hugh the fon or of one of them, and at their wil, an<f 
according to fuch things as pleafed them. Secondly, for giving 
cvill councill to the king, not to anfwer the petitions of the great 
men and others, but at their pleafure. Thirdly, that they^ to at- 
tain by their malice and covetoufneffe to the diiheritance of the 
great men of the realm, and deftruction of the people, put out 
good and covenable minifters, which had their places by aflent, and 
put in others falfe and evil of their covin, that they fiiould nor 
caufe right to be done. And fherifs, efcheators, confiables of 
cafties, and others in the offices of the king, not covenable 
for the king, nor for the people they di<d make, and caufed juftices 
to be made not cormfants rn the laws of the lafKl, to hear and de- 
termine things touching the great men and people of the realm, 
&c. And fo, that which ought to be for the maintenance of the 
peace, and of good men, and punifliment of evill, was turned to' 
the diflieritance of the great men, and deftru<5iion of the people. 
Fourthly, that they falfely and malicionfly did counfell the king to- 
raife horfe and arms, &c. in deftru6lion of the good people, againfr 
the form of Magna Carta, and fo by their evill counfell would 
have moved war within the realm^ to the deftrucVion of holy 
church, and of the people,, for their proper quarrel!. Fifthly, for 
defeating by their evill counfell that which the king had granted in 
his parliament by his good counfell, by the afient of the peers of 
the landy to the di/honour of t!ie king, and againfi right and rea- 

Cap. 2. The Councell Board. 54 

fi>n. Sixthly, they would not fulTcr the to take reafonabic 
fines, &c. upon alienntions A'C. Rcafl the whole. 

Hereby it appcareth that one or two ouj^ht not to be fole coun- 
1> Uors, and to make a monopoly thereof: tor true it is that Honier 


//■ / , /' /jurr^u/im pofrn's tu fortUcr o?n*tlafoluSy Hom^. 

-^ V; •.,;:/• aliis Hhi hello pollen tkdnunt, See the art'd^J 

Huic Jnltandi artim^ voce ftuic^ citharnque camnau Wooifcv 5i?rrnf . 

Inferuitquc fagax all'tfub jcthrc ma^nus ter cap Chjn- 

Jui>itcr ingmium, ^t mult is ejl * utiiis illc, eery, pa. Ait, i;, 

• The dntv of a privy counfellor appeareth bv his oath, which * }' 

confifteth on' ihefc articles or parta. ' ^ \^^^'* ^'•'^ "'^ 

I. That he fliail a«; iAX forth ?s ciinninj; and difcrefion fufFcreth, ^° " 

truly, juftly and evenly coiinfell and advife the king in all matters * ^^ P^^-^ ^^ 

to be commoned, treated, and demeaned in the kings councell, or j^j^.a' vid. vV-. 

by him as the kings counfellor. M,ig. Carr. 

1. Generally in all things that may be to the kings honour and par:e i. fo. i/'.r, 

behoof, and to the good oi his realms, lordfllips and fubje<f^fi, j"r^*r.trtum an- 

M'itht^ut partinlitv, or exception of perfons, not leaving, or efchew- ^'^^'^'^l^^^ j 

ing fo to do for affcclion, love, meed, doubt, or dread of any per- ^3^ ,^^' 

fon or perfons. Nota, vide Inf. 5, 

3. That he fhall keep fecret the kings counfell, and all that 
fliall b^ commoned by way of councell in the fame, without that 
he fhall conmion it, pubiilh it, or difcover it by word, writing, or 
in any otherwife to any perfon out of the fame councell, or to any 
of the fame councell, if it touch him, or if he be party thereof. 

4. That he fliall not for gift, meed, nor good, ne promife of Rot. par. 11 Ff 4., 
•o-d by him, nor by mean of any other perfon receive or admit nu. 2S. 

lor any promotion, faYouring, nor for declaring, letting, or hind- 
ring of any matter or thing to be treated or done in the laid coun* 

q. That he fhall with all his might and power help and Nora, fuprj a, 
ftrengrhen the kings faid councell iti all that fljall be thought to 
the fame coumell for the univerfal f-ood of the king and his land, 
rind for the peace, refl, <\m\ tranquillity of the fame. 

^ 6. T!)at he fliall withftand "hny perfon or perfons of what con- 
dition, eflate or degree they be of, that would by way of feat, at- 
tempt, or intetid the contrary. 

7. And generally that he' (hall obferve, keep and doe all that 
a tjood and true counfellor ou^ht to doe unto his foveraign 

By force of this oath and the cuflome of the rralm he is a privy 
counfellcr without any patent or grant during the life of the kii.g 
that maketh choice of him. 

It is enadcd that all the kings ccunfcllors and other head officer 
there named fiiail iiave yearly nut of the exchequer fuch fees b;. 
wav of reward as are there exprefled. 

Every privy counfellor hath a voice and place in the court' of 
rr.\r-c lumber, as in the chapter of the court of Ihr-chamber ap- 

For the better performance of which oath, kJngH. 8. would 
w.fli that his counfellors wouJd commit Emulation, diflirrulation 

In-t.IV. \. ;u^4 


The Councell Board. 


and partiality to the porters lodge when they came to {it in coun- 


Principalis con- 


Capi talis confi- 


You fhall have 

what we have 

obferved by our 

own reaciing, of 

others learn that 

Tvhich is here 


21 H. 8. ca. 20. 
Vid. rot. pari. 
50 E. 3. nu. 12. 

LcrdPrj'Vf Seal. 
See rot. pari, 
<;o E. 3. nu. 10. 
& nota bene. 

'The oath of the 
Lo. Frivy Seal, 

H. 8. 

0/ the Prefident of the Councell 

There is, and of ancient time hath been a prefident of the 
councell, who was fometime called prmcipalis conJiUarhiSy and 
fometime capitalis ccTiJiliarius^ Rot. par. 9 E. 2. comes LancaJT . 
50 E. 3. I R. 2. T, pars. pat. nu. 22. i H. 6. nu. '26, 27. dux 
Bed/. Rot. pat. i H. 6. parte 3. dux Gkc\KoU pari. 10 H. 6. nu. 
g. dux Gkc\ See rot. pari. 11 H. 6. nu. ig. rot. pari. 22 H. 6. 
dux Eborum. Rot. pat. 13 E. 4. part i. Johannes Rujfel ep'ifcopus Roffen' 
etpcftea Lincoln^ prff Jens confdii. Lit' record curice Jlellat'' Johannes Fijher 
epifcopus Rojf' prjjidens conjUii 12 H. 7. A. 25 H. 8. ufq; 37 H. 8. 
Carolus Brandon dux Suff' in lihro pacis^ rot. parL 1 E. 6. Pawlet. 
In the Journall book of parliament. 5 E. 6. & 7 E. 6. dux Nor- 
thumb. I & 2 Ph. and Mar. co7nes Arundel^ &c. 

Acts of parhamrnt naming the prefidents of the councell, 31 H. 
S. cap. 20. 3 1 H. 8. ca. 10. 34 H. 8. ca. i. 

This olhce was never granted but by letters patents under the 
great feal duiante beneplacito^ and is very ancient : for John bifliop 
of Norwich was prefident of the councell in anno 7 regis Jo- 
ha7ints^ Holl. fo. 169. Math. Paris 20c;. and Math. VVeftm': dortjii- 
•vit tanien hoc officium regnante magna EUzahetha. 

The lord prefident is faid in the ilatute of 21 H. 8. ca. 20. to 
be attending upon the kings moft royall perfon, and the reafon of 
his attendance is, for that of latter times he hath ufed to report to 
the king the pafiages, and the fi:ate of the bufinelfe at the councell 
table. See 50 E. 3. ubifupra. 

Next to the prefident of the councell, (as more fully appeareth 
in the chapter of prefidency) fitteth in councell, &c. the lord 
privy feal, who befides his oath of a privy counfellor taketh a 
particular oath of the privy feal, which confifieth on four parts: 

1. That he, as far forth as his cunning and difcretion fuffereth, 
truly, jufi:ly, and evenly execute, and exercife the office of the 
keeper of the kings privy feal to him by his highnefi^e committed. 

2. Not leaving or efchewing fo to do for afieiffion, love, meed, 
doubt, or dread of any perfon or perfons. 3. That he fliall take 
fpecial regard, that the fiiid privy feal in all places where he ftiall 
divert unto, may be in fuch fubfi:antiall v.'ife ufed and fafe kept, 
that no perfon without the kings fpeciall commandment or his af- 
fent, or knowledge, fliall move, feal, or imprint any thing with the 
fame. 4. Generally, he fliall obferve, fulfill, and doe all and every 
thing, which to the office of the keeper of the kings privy feal 
duly belongeth, and appertaineth. 

This is an office of great trufi: and fliill, that he put this feal to 
no grant without good warrant, nor with warrant, if it be againft 
law, undue, or inconvenient, but that firfi: he acquaint the king 

Upon the lord privv feal are attendant four clerks of the privy 
feal : now how, and in what wife, the kings grants, writings, and 
leafes, fliall palte the three feals, viz. the privy fignet, the privy 


Cap. 2. 

The Councell Board, 

fcal, and the great fcal, and the diitic:; of the clerks of the prlVy 
fignet, and privv ft nl, and what fees ihall be, and where none 
at all, &CC. and many articles concernhig the palfing of the kings 
grants, &:c. you may read in the ilatute of 27 H. 8. a law worthy 
of obfervati'on. And of this aft you may read Lib. 8. fo. 18. b. 
In the Princes cafe. This ofticcr is named in the ftatutcs of 2 R. 2. 
ca. (;. and 12 R. 2. ca. 11. • clerk of the privy fcal. In rot. pari. 
XI H. 4. nu. 28. Garden Jcl privy feal : and in tlie Ilatute of 34 H. 
8. ca. 4. lord privy feal. This feal is called by fcverall names. 
By the Satuteof 1 1 R. 2. cap. 10. it is provided that letters of the 
fignet, nor of the kings fecrct feal ftiall be from henceforth fent in 
dammage or prejudice of the realm, nor in difturbance of the law. 
Vide Mir. ca. 3. §. Exception nl pcnvcr de judge. 

In the Oatute of Articuli fuper Cartas^ cap. 6. 28 E. i. it is 
called the little feal, and like wife in the ftatute of 2 E. 3. cap. 8. 
it is fo called. Regill. fo. 1^6. parvumjigillum. 50 E. 3. nu. 185. 
F. N. B. 180. Flcta, lib. 2. cap. 12. §. ^EJi int.' Cffc. Cujlos privati 
Jigitliy clerks of the fignet, cJerici Jignetti are named in the faid a6t 
of 27 H. 8. &c. and are four in number attendant upon the kings 
principall fecretary who always hath the keeping of this feal or 
fignet, for fealing of the kings privy letters : thele four clerks fit 
at the fecretaries board. He that defireth to read more of the 
duty of privy counfellors, and how, and for what caufes they are 
to be puniftied, if they offend ; let him read the parliament roil of 
the 50 year of E. 3. nu. 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 
25, 26, 27, 28, 29, &c. 34, 35, &c. 

A6ts of parliament concerning the kings privy councell, 25 E. 
3. ca. 4. flat. 4. 28 E. 3. cap. 31. 42 E. 3. cap. 3. in print. 9 R. 
2. nu. 12. II H. 4. nu. 28. 13 H. 4. cap. 7. 3 H. 7. cap. 14. 
3 E. 6. cap. 5. 21 Jac. ca. 3. concerning warrants of afiiltance, 
&:c. 3 Caroli. ca. i. in the petition of right, concerning loans, &c. 
imprifonment, &c. martiall law, foldiers, &c. 

See hereafter pa. in the chapter of the Chancery in the articles 
againfl cardinall Woolfey, artic. 9, 10, 15, &c. concerning privy 

It appeareth by the writs and records of parliament, that the 
high court of parliament is refolved to be holden by the king 
per advif amentum conjilii fuiy that is, by advice of his privy cofltn- 

Orders of parliament for the privy councell, and other things 
concerning them in the rols of parliament. 50 E. 3. nu. fo. 12. 
15. 21. 34. 42 E. 3. nu. 27. Sir John Lees cafe, i R. 2. nu. 87. 
1.12. Ror. pat. 1 R. 2. parte i. m. 16. 2 R.2.ftat. i. nu. 49. 
Rot. pari. 1 H. 4. nu. 2. 7 H. 4. nu. 31, 32, 33. 41. 66, d'j^ 68, 
&c. II H. 4. nu. 14. 13 H. 4. nu. 3. i H. 6. nu. 30, 31, 32. 
2 H. 6. nu. 15, 16, 17. 8 H. 6. nu. 27, 28. certain articles to 
the number of eighteen touching the order of the kings councell 
(amongft which the eleventh is, that all offices and benerices of the 
kinp gift, fuch as had ferved him or his father, fhould be prefer- 
red thereunto) are eftabliflied by the king, the bifhops and lords. 
9 H. 6. nu. 25. II H. 6. nu. 19. Six articles, whereof the lafl 
was, that a roll (hould be made of fuch as at any time had ferved 
in the wars, or o;herwife, to the end they flioiild be preferred to 

F a ofiBces 


27H.8. ca. II. 

• An humble 
name of a grc.iC 
offictr, and in 
thofe acts rank- 
ed amongft the 
grandees of the 

See the 2 part of 
tlie Inftiu 
Artic. fuper 
Cart. ca. 6. 


F. N. B. 85. a. 
See artic, fuper 
Cartas, ubifupra. 
lib. 8. ubi fupta. 

9R. 2. nu. 12, 

and 1 1 H. 4. 

nu. 28. not in 


3 E. 6. ca. 5. 



The Councdl Board. 

Cap. ^* 

Prov. II. 13. 

Tobie 12. 

Valerius lib. 4. 


Veget'us lib. 3. 
de re miliUri. 

Erafmus in 

• Curtlus. 




* Book of Judg* 
I9. ver. ultimo. 
Confider, con- 
fult, and then 
give fentence. 
a Seneca. Non 
femperin uno 
gradu,fed in una 
via, non femitat, 
fed aptat. 
^ Saluft. Prluf- 
quam incipias, 
confulto, & ubi 
confuiueris ma- 
ture fado opus 

CiiH.4. nu. 14. 

offices and benefits. 12 H. 6. nu. 4. De mtendentiis coufiliarkrum, 
31 H. 6. nu. 30. Vide Rot. pat. 32 H. 6. parte i. ni. 22. 

A6ls of coimcell concerning the fame. ^oi. finium. 20 E. 3. 
m. 8. rot. clauf. 4 H. 4. in dorf. m. 13. clauf 25 E. 3. m. 10. 
pat. 19 R. 2, parte 2. m. 8. chuf. 20 E. 3. parte i. m. 26. The 
clerks of the councell are attendants upon the lords and others cf 
the privy councell. Concerning; the clerks of the councell and 
their duty, fee rot. pari, anno i H. 6. nu. 32. 2 H. 6. nu. 17. &c. 

Of thefe a6ls of parliament, orders in parliament, and a6ls of 
councell we have referred you (for avoiding of tcdioufneile) to the 
originals. Q«/ amhulaf fraduknter revelat arcana^ qui autem fidelis eji 
celat, &V. 

Bonum eft ahfcondere facr amentum regis, opera autem dei revelare ho- 
nor ificum. 

Nihil ma^is optandum^ quam ut rcrum gcrendat urn confilta^ quoad ejifs 
fieri pot er it, quam fnaximc occulta Jint, 

Eximia eft virtus -prtejiare fdentia rehi/s, 
Ac contra gravior culpa tacenda loqui. 

Nulla funt melicra ccnfdia, quam qu^ ignoraverit adverfarius ante- 
quam facias, ^c* Quid fieri debeat, traSIaio cum mnltis ; quod faHii- 
rus /iSy cum paucijjimis ac fidel'ijftimis, CsjV. Confilia nifi fint abfcondita, 
exitum raro profptL iunt. 

Confilia callida et aztdacia prima fronte lata, traflatu dura, eventu 

In confiliario imprimis requiritur temper a7rti a-, quia * novandist quam 
gerendis rebus aptiora ingenia ilia ignea. And it is certain that men 
of fiery and furious fpirits eafily become faftious. 

In cojfiliario principis tria m^xime requiruntur, lihcrtas,fides^ et Veri- 
tas : libertas confilii efi ejus vita et ejjentia, qua erepta, ccnfilium eva- 
nefcit. ■ 

Private resfemper officere, officientque publicis ccnfiliis, pejftmum vert 
affedus et judicii venenumfua cuique utilitas, 

Tu civem patremque geris^ tu ccnfule cwnSlis ; 
Non tlbi, nee tua te move ant, Jed public a vota^ 
All which, and much more are comprehended within the orth 

Some rules of counfell, which in councell we have obferved, 
we will adde. Firft, that it is fafefc to give a king counfell, when 
he demandeth it. Secondly, the truefl: and bed counfell is ever 
given to a king;, when the queftion \% {<:) evenly propounded, as the 
counfellor knoweth not which way the king himfelf inclineth. 
Thirdly, that * prapropera concilia fiint raro profpera : for refolution 
fliould never goe before deliberation, nor execution before refolution. 
Fourthly, when upon debate and deliberation it is by the councell 
table well refolved, the * change thereof upon fome private infor- 
mation is neither iafe nor honourable, ^ nor that alter refolution 
timely execution be delayed. Fifthly, it is a mean of profperous 
fuccefie when the queftion is debated with a few, not that he 
fliould rely upon them, but that thereby the ftate of the queftion 
may be wel underftood, to the end the fame may be plenarily and 
fully propounded to the whole board. Sixthly, *= good counfel is 
the foul of the fi:ate. Seventhly, when coynfellors doe hide or 


Cap. 4. The Court of the High Steward of Engl. 57 

iHfguifc the truth, it is full of danger both to the king and to 

^ themfelvcs. Eiy.hthly, violent courfes are lilce to hot waters that «i Malum confi- 

niay do good in an exlreniity, but the ufc of them doth fpoil the I'^m confultori 

ftomach, and it will require thcni ftronger and ftronger, and by ^*^^*"^jy"; 

little and little they will Icflen their own operation. Laftly, fuch ,g^H^3*"nu. xq. 

fear as doth not fal in conjlamem virum^ is an enemy to good coun- Segrave* cafe, 

fd: for what is fear, * but a betraying of fuch fuccours, as reafon Rot. par.soE.j. 

(and counfell) fhould altord. ' _ ""• »4. Scgnio* 

No lord ot parliament takes any place of precedency in refpeft *'*^""<^" <^*'=' 

he is a privy counfellour. Buf under that degree fuch place a "^ Sap, la, 
ivivy counccUor fliall take, as is fet down in ferie crdxnum tcm^crt 
H. 7. hereafter remembred in the chapter of Precedency. 

CAP. III. [ 58 ] 

Of the Power and Authority of the Protedtor 
and Defender of the Realm and Church of 
England during the Kings tender Age. 

SE E Rot. pari, anno i H. 6. nil. 26. &- 27. 2 H. 6. nu. 16. 
6 H. 6. nu. 22, 23, 24. 8 H. 6. nu. 13. 11 H. 6. nu. 19. 
32 H. 6. nu. 71. where you ftiall finde his authority, place, and 
precedency well expreflld and defcribed. 

The fureft way is to have him made by authority of the great 
councell in parliament. 

See Holiinglheds Chronicle, pa. 1069. which may give you oc« 
cafion to fearch for the recordi of fuch protedors as are there re* 
hear fed. 

C A P. IV. 

The Court of the High Steward of England, 
intituled, Placita Coronce coram T^hom. Duce^ 
N. Senefchallo AngUa^ 

"LJ IS ftile \s f^nefchalhts Anglic. This office is very ancient, FiiJ-iU, 

^ •*• and was before the conqiieft. For I reade in an ancient and Tbe antiquity «f 

authenticall manufcript, intituled authoritasfinefchalli Angliec : *'* e^*^'- 

where putting an example of his authority, faith : Siait accidit God- -^^^^0/3^" ",^1 

ivino comiti Kanciof tempore tcgis Edwardi antecejptrii tVtllielmi duds ^^ j^e realm. 

Nui:nandi.e pro huju/modi male gc/iis et conjlliis fuis (per fenefchallum i H. 4. t. 

Anyr^iue) adjitdicaius etfor-jfecii comitivam fuam. 13 H. 8. 13. 

in the time of the Conoueror William Fitf-Euftace wasileward Nona 

^f ' •■ ' ' ' ^-d in the reign of WUliani Rufus and H. i. "?' **- 

f 3 Hugh 


The Court of the High Steward of Engl. Cap. 4. 

Hugh Gr,intremenel baron of Hinkley held that barony by the faid 

Of ancient time this office was of inheritance, and appertained 
to the earldome of Leicefter, as it alfo appeareth by the faid re- 
cord : Senefchalcia /Ingl'iee pert'inet ad comiti'va7n de heicejier^ et perti' 
tiuit ab antlquo. That is, that the earldome of Leicefter was hol- 
den by doing of the office of fleward of England. Other re- 
cords teftifie that it iliould belong to the barony of Hinkley. The 
truth is, that Hinkley vvas parcell of the pofleffions of the earle of 
Leicefter, for Robert Bellomont earle of Leicefter in the reigne of 
H. a. married with Petronil daughter and heir of the faid Hugh 
Grantfemenel baron of Hinkley and lord fteward of England, and 
in her right was fteward of England. And fo it continued, until! 
by the forfeiture of Simon Mountfort it came to king H. 3. who 
in the 50 year of his reign, created Edmond his fecond Ton earle 
of Leicefter, baron of Hinkley, and high fteward of England, 
which continued in his line untill Henry of Bullinbroke * fon and 
heir of John of Gaunt duke of Lancafter and earl of Leicefter, 
who was the laft that had any eftate of inheritance in the office of 
the fteward of England. Since which time it was never granted 
to any fubjeft, but only hac "vice. And the reafon was, for that the 
power t of the fteward of England was fo rranfcendent, that it was 
not holden fit to be in any fubjeds hands: for the laid record 
faith, ^ Et fciendum eft quod ejus officium eft fupervidere^ et regularcfub 
rege, et hnmed'iate poft regem rotum regnu?n Anglia^ et omnes minijiros le- 
gum infra idem rrgmvn iemporibus pads et ^usrrarum^ ^c. and pro- 
ceedeth particularly with divers exceeding high powers and autho- 
rities, which may well be omitted, becaufe they ferve for no pre- 
fent ufe. 

*= And albeit their power and authority have been ftnce the 
reign of H. 4. but hac vice, yet is that /mc vice limited and appoint- 
ed. As when a lard of parliament is ^ indicted of treafon or fe- 
lony, then the grant of this office under the great feal is to a lord 
of parliament, reciting the indiftnient, '^ Nos confider antes quodjujii-^ 
tia eji virtus excellens et altijftmo complacens, eaq\ pro.' omnibus uti vo- 
lentes, ac pro eo quod officium ftne/challi Anglic y ciijus fra-fentia fro 
adminijiratione juftitia et executione ejnfdejn in hac parte facien^ requi- 
ritur, vt accepi?nus, jam vacat : de fideliiate^ ftrenuitatCy provida cir- 
cumfpeBione, et indiiftria vejiris plurimum confidentes ordinavimus et con- 
d See tb" fecond f^^^^^^v^s vos ex hac caufa et caujis fenejchallum noftrum Anglice ad ofti" 
part of the In- ^'^^ /////.o^ cmi omnibus eidem officio in hac parte debitis et pertinent ibus 
hac vice gerend* , accipiend\ et exercend\ ^ dantes et concede?ites vobis 
tenore prejentium plenam et fvfficientem potejiatem et author itatem, ac man' 
datum fpeciale indi^amentum prcfdicl. ^c. So as it appeareth, that 
this great officer is wholly reftrained to proceed only upon the re- 
cited indiftment. And he to v/hom this office is granted, muft be 
a lord of parliament, and his proceeding is to be ^ fecundum leges ef 
confuctudines Anglic J for fo is his commiffion. And hereof you may 
reade more at large in the third part of the Inftitutes, cap. High 
Treafon. ^ Alfo at every coronation he hath a commiflion under 
the great feale hac vice, to hear and determine the claimes for grand 
ferjeanties and other honourable fervicesto be done at the corona- 
tion for the folemnization thereof: for which purpofe the high 
fteward doth hold his court fome convenient time before the coro- 


* Rot. par. 
ai R. 2. nu. 4. 
Int. placita co- 
ronse Jchn cf 
Gaunt duke of 
Lane, and earl 
of Leicefter, 
fleward of Eng- 

His authority 
hac ince: and 
therefore he is 
not mentioned 
in the ftatute of 
31 H. 8. ca. 10. 
concerning the 
placing of great 


^ Herewith 
agreeth the cuf- 
tom. of Norm, 
cap. 10. fo. 17. 
pa. 866. 
*^ His authority 
{bac vice) limit- 

flitutes, Mag 
Cart. cap. 29. 
3 H. 4. cap. I. 
e He is fole 
judge by the 
common law, 
and can make 
no deputy. 
i'Stanf. pi. cor. 
152. I H.4. 
fo. 1. J3 H. 8. 
fo. II. b. 
S His rule, 
^ His further 

Cap.4. The Court of the High Steward of Engl. 59 

nation. Sec a prcfuient hereof before the coronation of king R. 2. 
John duke of Lancaftcr then (k-vvard of Kngland, (wlio in claymes 
before him was ^\\n\ trr/fjomtaMefilgnior U royde Ca/ile et Leon^et f<- 
nefchal D'^ttngUicire) and held his court in uWja Aula apuH P^cftm. 
Me Jovis ftroxime anle atrouatloncm* Qtue quidem coronatio hahita et 
fclemni'zatafHittiieJovts/fquaitej viz. 16 Jul ii anno 1 R. 2. 

Thf firlt that vas created hnc vice for the folemnization of the 
coronation of H. 4. was Thomas his ftcond fon. * And upon * V". 1 H. 4. 
the arraignment of John Holland earl of Huntingdon, the firft that J°* Th '^'wV 
was ci^ated fteward of England hac vice^ was Edward earl of ffngham^p 767 

Devon. and others wha 

Rot. pari. 37 H. 6. nu. 49. Thomas Courtney earl of Devon affirmethathe 

wns arraigned of high treafon before Humphrey duke of Gloc. /lac w's beheaded at 

vice fteward of England, and acquited. And (o was ^ the lord b ''S confmons ' 

Dacres of the north arraigned of high treafon before Thomas do errc^.°"""°"'' 

duke of Nortf. /iac vice fteward of England and acquited by 26 ^ ^^ p ^, 

P^^'**^* 26 H. 8. of juf. 

When he fitteth by force of his oflice he fitteth nncJcr a cloth of ticeSpilman* 
eftate, and fuch as direft their fpeech unto him, fay, Pleafe your report, 
grace my lord high fteward of England. The ftile of the faid John 
of Gaunt was, JJiannes Jilius regis AngU.-e^rex Legionis et Cajlellcv^ dux 
Aquitaniee et Lancajirice^ coma Derbio'^ Lincolnicc, et Lcicejir^^fenef- 
chalius AngVu-e. And in refpeft his power before it was limited was 
fo tranfcendcnt, I finde no mention made of this great officer in 
any of our ancient authors, the Mirror, Brat^on, Britton, or Flcta. 
It feemeth ihey liked not to treat of his authority. Neither do I 
finde him in any a<5l of parliament, nor in any book cafe before 
I H. 4. and very few fince: which hath caufed me to be the See the third part 
longer in another place to fet forth his authority and due proceed- of the Inftitutes, 
ing npon the arraignment of a peer of the parliament, by judi- cap. Treafon. 
ciaJl record and refolution of the judges, agreeable with conftant 

For the etymologic and fignification of (fcnefchalhs) fee the firft 
part of the Inftitutes: and though it hath feverall derivations, yet f 60 1 

as being applied to England, it is properly derived from fen, that Yxx^ part of the 
isjuftice, 2iX\(\fc}iale, that is, governour or officer, that is, pnefcc- Inftit. icdl. 7S. 
tusfcu officiariuijujiitia. And this agreeth well with his authority 
and duty to proceed (as hath been id^A) fecundutn leges et confuctudl- 
Tus Anglia, 

It is to be obferved, that as the peers of the realm that be triors 
or peers, are not fworne, fo the lord fteward being judge, &:c. is not 
fworn : yet ought he according to his letters patents to proceed fe^ 
(up.dum hgem et confuetudinem Anglia, 



The Court of Star-Chamber. Cap. 5, 

CAP. V. 

The Honourable Court of Star-Chamber, coram 
Rcge ct Conciliofuo : Of ancient Time, coram 
Rege in Camera, &c. 

That it Is an 
eminer.t court 
pro-ved by f e- 
(ords and a£is of 
i^ 22 Lib. aff. 
pi. 5.. 

t Rot. pat. 
1 part. m. I ■5. 
F-^t'ud andfalfe- 

"^ l^ot. pat. 
1 part. m. 13. 
F'^l/hood in art 
xjjicer and rafmg 
of a recerd. ■ 

'' Rot. clauf. 
42 E. 3. m. 8. in 

d ?r. 

Vid. rot. pat. 
2 R. 2. 1 part. m. 
for rafing. 
12R.Z. cap. II. 
ocv. ie councel. 

« Rot. clauf. 
4.1 E- 3. Cambd. 
Btit. 230. 

t Rot. clauf. 
16 R. 2. in dorf. 

Ui- II. 

g Pat. 6 H. 5. 

& conumile 
anno 7 H. 5. pro 
erwiclce in Com' 

IN * the 28 year of the reign of £. 3. it appeareth, that the retorns 
cor<^m noh'is^ are in three manners, connn nobis in camera (which, 
it is faid, was afterwards called camera jUllata.) 2. Coram nobis 
ubicunque fuerinius in Jnglia^ which is the kings bench ; and coram 
nobis in cancdlarla. And of all t!ie high and honourable courts of 
juilice, this ought to be kept wilhin his proper bounds and jurif- 

■^ Jn 38 E. 3. coram rcge it concilio, John Redland complained of 
Robert Splnke for delivery of prisoners upon falfe fuggeftion made 
to the king : upon hearing the cauie, the defendant was acquitted, 
the plaintife imprifoncd. 

'^ In 39 E. 3. Ralph Brantingham one of the chamberlains of the 
exchequer complained before the king and his counceli of Richard 
Cefterneld clerk deputy of the kings treafurer, in the receipt for di- 
vers allowances, payments, &c. unduly made, and for rafing of re- 
cords, &-C. Upon the hearing of the caufe by the whole couriCeli, 
the defeijdant was acquitred, and the plaintife removed from his 
office, and committed to prifon. 

^ The abbot de Bniera, and R^gg^ his monk fen- 

tenced coram rege et concilio^ for raling of letters parents, and in- 
ferting other words: and the letteri patents by fentence can-^ 

« In awio 41 E. 3. in a bill of complaint exhibited to the king by 
Elizabeth the widov\' of Nicholas Awdeley plaintife, againft Jane 
Awdeley defendant, who appeared before the kings counceli, vjz. 
the chancellour, treafurer, juftices, and others alTemblcd en la chani' 
hsr des eftoicls pres de la receits. 

^ A fuit depending before the king and counceli between the 
abbot of Saint Auflcn of Canterbury and others concerning wrecks, 
&c. The abbot brought his a6i:ion at the common law againft the 
parties, who being thereupon arrefted and imprifoaed, the flieriffe 
was con^.manded by the kings writ to deliver then), and to forbear to 
ferve any other proces againft them : and the reafon there yeilded 
is notable, Quia non ejl juri co?/famm^ aut hotiejitan, quodaliquis de hVu 
qua coram nobis et coyicilio nofiro in d'JcuJJione pendrnt^ alibi Inde inter I tu 
placitari deheat^ aut apparere. 

s A fuit depending before the king and his counceli, bcweeu 
W. G. of the one part, and H. S. of the other part : a fequelh'ation 
js ordered for the oreftrvation of the things in queUion. 

Cap. 5. The Court of Star- Chamber. 

^ In 17 H. 6. an inrolmcnt of a confcflion of John Ford of 
Lon. nierccr before the lord trcafi.rer and others of the kings coiin- 
ccll in the ftar chamber tor the * fraudulent packing and tranfporting 
of wooll, with a writ to the flieriffe of London to fct him on the 

The abbot of Weftminfter exhibited his bill to the king againft 
the flieriffcs of London for arrefting and drawing out with force a 
privilcilgcd perfon out of the fandtuary ot S. Martins le grand be- 
longing to the fdid abbey : which matter after due proceedings be- 
ing heard in the court of ftar-chambtr before the lords and others of 
the kings councell, and Hodey and Newton chief juftices, which 
juflices determining, that by law the party ought to enjoy the pri- 
viledgc of fan6tuary, the flieritfes were grievoudy fined in the Itar- 
chamber by particular name : which fentence the lord Dier, as he 
hath leported under his own hand, faw upon a reference to him 
and jullice Southcote out of the ftar chamber, Trin. 11 rrgifur 
Eiiz. concerning the fanduary of Wefrm. for Hampton and W'hit- 
acres being in for debt. And the lord Dier made this note with his 
own hand. No/a, pur le Jiar-ihavihcr, And this is a notable proof 
of the jurifdiction of the court for fining, &c. That the bill was 
exhibited to the king, and that the two chief juflices then did fit, 
und were judges (amongft others) in that court. 

For divers riots, extortions, oppreffions, and grievous offences 
by divers perfons done againfl: the kings peace and lawes, to divers 
of his liege people, commandement hath been given by the kings 
writs under the great feale (which continue untill this day) to ap- 
pear before the king in the chancery, or before him and his coun- 
cell at certain dayes to anfwer to the premifles, which commande- 
ment hath been many times difobe\ ed, Provifion is maHe by that 
acf for the punifhment of fuch difobedience, as by that a«5l appear- 
eth. True it is, that this ad was but temporary, yet it alfirmetb 
fo much as before hath been faid, 

Afino 35 H. 6. A writ of certiorari was directed: Tlicmce Kent 
ckrico concilii : volentes certis de caujis certiorari Jul er tenorem cujufdam 
a8us Pafch. ultime profterito atud Wejlm. in camera ftellata concernen' 
Johnniiem ducem Norff. And iee there proces of rebellion againfl the 
faid cinke. 

Robert Davers a counfellor at law by bill exhibited to the king, 
i'c. for defamation of rafmg a record. And the faid Robert by 
the kings councell in camera Jiellata was acquited, and John Broket 
that made the rafure fentenced. 

Tne kings councell affembled in the flar- chamber. The lord 
Cromwels cafe. 

An order in the flar-chamber for the duke of Yorks councell 
to have accelfe to him, becaufe called into the chamber by privy 
feale, &:c» 

An exemplification of a complaint by Richard Heron againfl John 
Prout, coram rege et conjiliariis fuis in camera flcllat a ^ for a great mif- 
dcmeanour concerning wools. 

Anno 8 E. 4. proceeding by Englifh bill, anfwer, replication, &c. 
cf.ram rege et concilio. 

Anno 20 E. 4. a fentence in the flar-chamber for turbulent 
and undue eledtions between the abbot of Bury and tlie inhabi- 


^ Rot. cUuC 
1- H. 

Anno 29 H. 6. 
Trin. I. Elix. 
Dier. manufcript 
not iroprintcd. 

Stat. de3iH.6. 

cap. 2. 

Vide Rot. part. 

I H. 6. nu.4X. 

Ex bundellobre* 
vium regis. 
35 rf- 6. 

Rot. clauf. 
IX H. 6. 

Rot. clauf, 
28 H. 6. 


m. 20. 


Rot. petit. SE. 4. 

par:. ». 


6if The Court of Star-Chamber. Cap. 5. 

We have omitted many other records, but becaufe they be of 
like nature we have contented our felf with thefe. And now we 
will confult with our book cafes, and reports of law: wherein ei- 
ther coram rcge et concilio, or coram rege et concilio in camera Jiellata^ is 
Book cafet and 39 E 3. fo I4. 19 alT. pi. i. 40 aff. 38. 13 E. 4.0. in camera 

reporuofla-^. j^^n^^^^ yid. 27 E. 3. cap. 13. 21 E. 4, 71. in camera fell at a. 
2 R. 3. fo. 2. & II. /■« camera Jiellata. 1 H. 7. 3. in camera JleU 
lata. This court in ancient times fat but rarely, for three caufes. 
Firftj for that enormious and exorbitant caufes which this court 
dealt withall only in thofe days rarely fell out. Secondly, this 
court dealt not with fuch caufes, as other courts of ordinary 
juftice might condignely punilh, ne dignitas hujus curiae vilefceret. 
Thirdly, it very rarely did fit, left It fnould draw the kings pri- 
vie councel from matters of ftate, pro bo?to publico^ to hear pri- 
vate caufes, and the principail judges from their ordinary courts of 
r 52 1 Th^.\. which now is next to be confidered mferie temporis is the 

3 H. 7. ca. I. ftatute of 3 H. 7. the letter whereof foiloweth : 

21 H. 8. ca. 20. It is ordained that the chancelour anci treafurer of England, 
the k^'^^^''^^"^ °^ ^"^ ^^ keeper of the kings privy feal, or two of them, calling 
cell added ^°""' ^^ them a biftiop and a temporal lord of the kings mofl: ho- 
nourable privy councell, and the two chief juftices of the 
kings bench and common place for the time being, or other 
two juftices in their abfence, upon bill or information put 
to the faid lord chancelour or any other againft: any perfon 
for unlawfull maintenance, giving of liveries, figns and to- 
kens, and reteyners by indentures, promifes, oaths, writings or 
otherwife, imbraceries of his fubjeils, untrue demeaning of 
Iherifs in making of pannels, and other untrue returns, by 
taking of mony, by injuries, by great riots, and ur.lawfull 
aftemblies, have authority to call before them by writ or 
privy feale the faid mifdoers, and they and other by their 
difcretion, by whom the truth may be known to examine, 
and fuch as they find therein dcfedtive, to punifti them after 
their demerits, after the form and effe6t of ftatutes there- 
of made in like manner and form as they (hould, and ought 
to be puniihed, if they were thereof convict after the due or- 
der of law. 

Camden Brit. Qamcvct Jiellata autlioritatem prudentijfimus princeps HmricuTfeptimis 

iia parliament aria adauxit et co7iJlahili'vit^ nonnulii primum injiitnilfc 
falfo cpinantur. 

Upon this ftatute and that which formerly hath been faid, thefe 
fix conchiftons do follow. The firft conclufion is, that this aft of 
3 H. 7. did not raife a new court : for there was a court of ftar- 
chamber, and ail the kings privy councel judges of the farre. For 
if the faid aft did eftablifti a new court, then fliould thofe four or 
any two of tiiem be only judges, and the reft that they ftiould call 
to 'them ftiould be but affiftants, and aidants, and no judges : for 
the ftatute of 31 E. 3, cap. 12. which raifeth a new court, and be- 

Cap. 5. The Court of Sur-Chambcr* 62 

fore new judges, is introdudory of a new law, by having conu- 
lance ot error in the exchequer/ wl»ich fliall be reverfcd in the ex- 
chequer chamber belorc the chancelour and trcafurer, or calling 
to ihein tw o judges, there the chancelour and treafurer are only 
judges in the writ ot error, and fo in the like. But it is clear that 
thetw^ juftices in the ftar-chambcr are judges, and have voices, as 
it hnih ! 'en olrcn rcfolved, and daily experience teacheth. And 
furth-.- to clear this point, if the juftices fliould be but afliftants 
and no judges in the ftar-chaniber, for that they are to be called, 
&c. then, and for the fame reafon ftiouM neither lord fpirituall nor 
temporall, nor other of the privy counccll be judges, nor have 
voices in tl:c court of ftar-chamber. And therefore the fudden opi- 2 H. 7. 13. 
nion in 8 H. 7. and of others not obferving the faid diftin(5tion be- Plow. Com.393. 
tween a*5^s declarator)' of proceedings in an ancient court, and afts 
introciudoiy of anew law in railing of a new court, is both con- 
trar)' lo law, and cont^nuall experience. 

The fecond concfufion is, that the a£l of 3 H. 7. being in the • 
afBrmative is not in fome things purfued. For where that z£t di- 
refteth that the bill or information lliould be put to the lord chan- 
celour, &:c. all biis and informations in that court are conftantly 
and continually direfted to the kings niajefty, as they were before 
the faid aft ; and it is a good rule, that where the aft of 3 H. 7. is 
not purfued, mere (if there be many judiciall prefidentsin another 
fort) they muft have warrant from the ancient court; and yet it is 
good (as much as may be) to purfue this aft, there being no greater 
afTurance of jurifdiftion then an aft of parliament. And where 
there be no fuch prefidents, then the ilatute as to the judges mull 
be purfued : and that was the reafon that in default of others, Sir T 6"? 1 

Chriftopher Wray chief juftice of Eiigland for a time was made lord 
privy fcal to fit in the ftar-chamber, ne curia dcjiceret in jujiitia ex- 

Thirdly, that this aft being (as hath been faid) in the affirma-. • 
tive, and enumerating divers particular offences, albeit (injuries) 
is a large word, yet that court hatli jurifdiftion of many otner, as 
is manifeft by authority, and daily experience, and this muft of 
neceffity be in refpeft of the former jurifdiftion. 

Fourthly, this aft in one point is introduftory of a new law, • 
which the former court had not, viz. to examine the defendant, 
which being underftood after his anfwer made, to be upon oath 
upon interrogatories, which this ancient court proceeding in crimi^. 
nail caufes had not, nor could have but by aft of parliament, or 
prt fcriptton, the want whereof efpecially in matters of frauds and 
deceits (being like birds clofely hatched in hollow trees) was a mean 
that truth could not be found out, but before the ftatutethe anfwer 
M-as u;jon oath. 

Fifthly, where it is faid in this aft. And to punifti them after * 
their demerits after the form and effeft of ftatutes made, &c. The 
plaintife may rhoofe whether he will inform upon fuch ftatutes as 
this aft direfteth, or for the offence at the common law, as he might 
have done before this aft, which proveth that this aft taketh not x 
away the former jurifdiftion. 

6. I^ftly, that the iurifrliftion of this court dealeth' not with any • 
offence, that is not malum infr, againft the conunon law, or malum 
pnhthitum^ againft fome ftatute. 



The jurlfJiSIicn 
of this court 

Camden Brit. 
130, Jn camera 
Ji ell at a traSIantur 
criminaUa, per- 
juriay Jmpojiuraj 
dolus ma I us y ex- 

For proceeding, 
ere tenus, lee be- 
fore ro. clauf. 
27 H. 6. John 
i'ords cafe. 
Rot. cUuf. 
42 E. 3. the ab- 
bot of Brueries 
Cafe, &c. Jn no- 
urns or do eji cr- 
d'iKtmjurii r.on 

£ 64 ] 

Pafc. 12 Ja.Re^. 

The Court of Star- Chamber. Cap. 5. 

It is to be obferved that neither the flatutes of 37 E. 3. ca. 18. 
38 E. 3. cap. 9. 42 E. 3. ca. 3. 17 R. 2. ca. 6. nor any other 
ilatute taketh away the jiirifdicflion of any fetled court of juftice, 
neither is the court of flar-chamber named in any of them, and yet 
was it a court then and before that time. 

Divers fpeciall a6ls of parliament have been alfo jurifdic- 
tion to this court, viz. 12 R. 2. ca. 11. 2 R. 2. cap. 5. 13 H. 4. 
cap. 7. 33 H. 8. cap. i. 4 & 5 Ph. and M. cap. 8. 5 Eiiz. ca. 9, 
10. & cap. 14. 27 Eliz. cap. 4. 

And feeing the proceeding according to the laws and cuftomes 
of this realm cannot by one rule of law fuffice to punifli in every 
cafe the exorbitancy and enormity of fome great horrible crimes 
and offences, and efpecially of great men, this court dealeth with 
them, to the end that the medicine may be according to the dif- 
eafe, and the punilhment according to the offence, Ut pcena ad 
paticos^ metus ad omnes perveniat^ without refpeft of perfons, be they 
publique or private, great or fmall. 

As for oppreffion, and other exorbitant offences oi great men, 
(whom inferiour judges and jurors (though they fliould not) would 
in refpecl of their greatneffe be affraid to offend) bribery, extor- 
tion, maintenance, champerty, imbracery, forgery, perjury, di: ~ 
perfers of falfe and dangerous rumours, news, and fcandaioiis li- 
belling, falfe and partial! mifdemeanours of flierifs ad Uailifs of 
liberties, frauds, deceits, great and horrible riots, routs, and un- 
lawfull aflemblies, fingle combats, challenges, duels, aud other 
hainous and extraordinarv offences and mifdemeanours; but ordi- 
nary, and fuch offences as may be fufficiently and condignlv pu- 
niflied by the proceeding of the common laws, this court leavcth 
t(i the ordinary courts of juftice and dealeth not with them, 7ie dig- 
n'ltas hujus curice vilefceret^ as before isTaid. 

The proceeding in this court is by bill or information, by exa- 
mination of the defendant upon interrogatories, and by examina- 
tion, of witnelfes, and rarely ore tenus^ upon the confeffion of the 
party in writing under his hand, v/hich he again muft freely con- 
feffe in open court, upon which confellion in open court, the 
court doth proceed. But if his confeffion be fet down too fncrt, 
or otherwife then he meant, he may deny it, and then they can- 
not proceed agaiuft him but by bill or information, which, is the 
faireft way. 

The informations, bils, anfwers, replications, &c. and interroga- 
tories are in Englifh, and ingroffed in parchment, and filed up . 
All the writs and procciTe of the court are under the great feal : 
the fentences, decrees and acls of this court are ingroffed in a fair 
book with the names of the lords and others of the kings councell 
and jultices that wereprefent and gave their voices. 

In an information in tliis court by the atturny generall againfl 
Sir Stephen Prober, Birkenhead and others for confpiracy again ft, 
and fcandall of the earl of Northampton, and Edward lord VVoot- 
ton two of his majefties privy counfell: at the hearing of which 
raufe there fat eight in court, and four of them condemned the de- 
fendant : and the lord chancelour, the two bifhops, and the chan- 
celour of the exchequer acquitted him. And the queftion was, 
whether the defendant fhould be condemned or no: and herein it 
'.\as ir:ovcd by the king^ learned councell. that when the voices be 


Cap. 5. The Court of Star-Chambcr. 64 

cquall, that in that cafe, of which part the lord chancellor xvas, ^ 
on that fide it (lioukl be decreet), without regard, whether it was 
for the plaintif ordcfendaiu: and it was rdblved, that regularly 
et Ac cofiimum jure, in refpcA of the equality of the voices no ien- 
tence could be given in that cafe, as it holdeth in the high court of 
parhament, and all other courts, according to the old nile, pariSus 
fattcctiis nus abfolvitur. And therefore^ the; prefidents of this court Erodius fo. lu. 
were to be learched ; for except prefulents could make a difference 
between this court and others, the defendant could not be fen- 
tenced. Whereupon the court referred this queftion to the two 
chief juftices, that they calling unto them the kings learned coun- 
ccll to view prefidents, whether by the cuftome of this court the 
common rule in other courts is altered. Before whom in the pre- 
fence of the kings learned councell two prefidents were produced 
for proof of the laid cuftome, viz. one Termiho Hil. a7Juo 39 Eliz. 
between Gibfon plaintif, and Griffith and others defendants: HII. 
wherein the complaint was for a riot. And upon hearing of cJ^fo^s^^^lfe^*' 
the caufe eight fat in court, and four gave their fentence that 
the defendants were guilty, and the other four, whereof the lord 
chancelour was one, did acquit the defendant?, and no fentence of 
condemnation was ever entred. But the juftices took it, that that 
prefident tended not to prove any fuch cuftome, for it agreed with 
the rule in other courts. Another prefident was fliewed, Termino Hll. 45 El. in 
Hil. 45 Eliz. in an information by the queens atturny generall camera ftdlar^, 
againft Bathern and others for forging of a will, &c. ' Upon the ^athcrns cafe 
hearing of the caufe, the prefence confiding of eight, whereof 
four gave fentence a^iainft the defendant for forgery, and to be pu- 
nifhed according to the ftatute of 5 Eliz. the other four, whereof 
the lord chancelour was one, found him guilty of a mifde- 
meanour, and not of the forgery, and impofed a fine of five 
hundred pound only, and imprifonment, and that was entred ac- 
cording to the lord chancelours voice. But no rule of court was 
Ihewed for entring thereof in tliat manner : fo as it appeared not: 
that it was ever moved, or debated in court, and in that cafe all 
concluded againft the defendant, and it is but one prefident. Now 
whether this one, being fuch a one as it is, and fo late, be fuffi- 
cient to alter the generall law and courfe of all otlier courts, I 
leave to the judgment of this honourable court : and fentence was 
never given againft Sir Stephen Procter agreeable to the generall 
rule in other courts. See Rot. pari. 8 H. 6. ini. 28. 

Lawrence Hide and Henry Hide 'efqu ires, exhibited a bill of MIc. 36^57 El. 
complaint againft George Coriet and others upon the ftatute of 
32 H. 8. cap. 9. for unhwfull maintenance; and complained for 
three feverall leafes for certain years of the parfonage of Dynton 
in the county of Wiltf. whereof the lelTor nor any of his anceftors 
were in polTeffion within a year before, &c. and purfued the 
ftatute : upon which part of the bill (for the bill concerned riots 
and other things) the defendant demurred in law, and the caufe^ 
of the demurrer were. Firft, that by the faid a6l this court had no 
jurifdi£tion of this caufe upon this ftatute, becaufe that the ^t\ 
which is introductory of a new law did not give jurifdiflion to 
this court, but the liiit muft be in the courts o? the common lav\ 
upon this aCV, which (faid they) alfo appeared, in that in the rz- 
oiedv given by the adt in this claufc, In zv/ik/t ailluny hilly pla-nt. 


Dier Mich. 6 k 
yEliz. fo. 236. 

Dier 15 El. 323. 
in camera ftel- 
Iat\ Taverners 
cafe. Pafc. 

27 EI. in camera 
Charnocks cafe. 

The Court of Star-Chamber. Cap. 5, 

er information no cj/oign^ proteBion, wager of law, or injunction fiall 
he allowed, and that no efToign, &c. did lie in this court. The 
fecond obje-ftion was, this court had no power to give the plain- 
tif remedy to have execution in this court of the penalty given 
by this ad. Whereunto upon great advifement it was anfwered 
and refolved. As to the firft : that the flatute did give jurifdidlion 
to this court, for it is one of the kings courts, &c. intended in 
the aft : and the ftatute of 3 H. 7. declareth that this court hath 
jurifdiftion of maintenance, and this ad of 32 H. 8. doth adde but 
a greater penalty : and as to the claufe of elfoin, &c. it mufl be 
coi\^XMt^ reddendo fingula fingulis, ^c. for as no efToin, &c. lieth 
in this court, fo no injunction is awarded in the court of common 
pleas, &:c. As to the fecond : it was refolved that this court had 
power in this cafe to grant execution of the penalty inflided by 
this a6l, as in a like cafe had been done, in the cafe of James Ta- 
verner. And both thefe points had formerly been refolved in this 
court, 14 Maii. 27 Eliz. between Robert Bradfhaw efquire plaintif, 
and Robert Charnock efquire defendant, upon this ftatute, and 
the cafe decreed accordingly, and a commiflion awarded out of this 
court, to enquire of the value, &:c. And for thefe caufes by the 
rule of the whole court, the demurrer was over-ruled, and the de- 
fendant ordered to anfwer. 

This court fitteth twice in the week in the term time, viz. on 
Wednefdays, and Fridays, except either of thofe dayes fall out ta 
be the firft or laft day of the terme, and then the court fitteth not, 
but it conftantly holdeth the next day after the terme ended ; but if 
any caufe be begun to be heard in the terme time, and for length 
or difficulty cannot be fentenced within the term, it may be conti- 
nued and fentenced after the term. 

It is the moft honourable court, (our parliament excepted) that 
is in the Chriftian world, both in refped of the judges of the court, 
and of their honourable proceeding according to their juft jurifdic- 
tion, and the ancient and juft orders of the court. For the judges- 
of the fame are '(as you have heard) the grandees of the realm, 
the lord chancelor, the lord treafurer, the lord prefident of the 
kings councell, the lord privy fcal, all the lords fpirituall, tem- 
porall, and others of the kings moft honourable privy councelly 
and the principall judges of the realm, and fuch other lords of 
Camb.ubi fupra. parliament as the king ftiall name. And they judge upon confef- 
fion, or depoiition of witneffes : and the court cannot fit for hear- 
ing of caufes under the number of eight at the lenft. And it is 
truly faid, Curia camera Jiellatce, Ji vetujiatem fpe^emus, ejl anti- 
quijlma, Ji dignitatem, honor atijfima. This court, the right inftitu- 
tion and ancient orders thereof being obferved, doth keep all Eng- 
land in quiet. 

Albeit the ftile of the court be coram rcge et concilio, yet the kings 
councell of that court hear and determine caufes there, and the king 
in judgment of law is always in court. As in the kings bench the 
ftile of the court is coram rege, and yet his juftices who are his coun- 
cell of that court doe hear and determine, and fo coram rege in can- 
cellaria, and the like. 

So this court being holden coram rege et concilio, it is or may be 

compounded of ^ three fevemll councels. That is to fay, of the 

lords and others of his majefties privy councell, always judges with- 

§ out 

7 he digmty of 
this court'i 

The judges ef 
this court. 

^ See the i. part 
of the Inftitutes. 
iea. 164. FerL 
"jeigne les Bur- 
gejfes a I parlia- 

4E. 3. 2, 3 afT. 
pi. ^^^ 

Cap. 5. The Court of Star-Chamber. 


out appointment, as before it appcaretiK z. *• The judges of ei- ''39 £.3. s. 

ther bench and barons of the exchequer arc of the kings councel for 19 E. 3. Judj. 

matter of law, &c. and the two chief juftices, or in their ahfence ^^nf- 174. 

other two juftices, are ftanding judges of this court. 3. The ^^'^'^^'s^.dt 

lords of pnrliament are properly tie ' mni^m concilio regis, but neither rrmffarih. 

thefe, being not of the kings privy councell, nor any of the reft i6R.z. Stat.Je 

of the judges or barons of the exchequer are Handing judges of this Premunire. 

roiirt "^3 Ad. pi. 15. 

191. 27 H. 6. ^. 
a R. 3. 10. ^ 17 Aug. 5 H. 4. in the etchange between the king and the earl of Northum- 
»>-r!'.r!J, m turre. 37 E. 3. ca. 18. &C. Note the parliainent is called commune concilium* 

h is now, and of ancient time hath been called the chanfiber of 
tlie * ftars, the '^ flar-chamber, the *" f!:arred chamber, in refpeftthe 
roof of the court is garniOied with golden ftars. Some have ima- 
gined that it ftiould be called the ftar- chamber, becaufe crim'inafiel' 
limat* are there handled : others of this Saxon word Jireran, to 
fteer or rule as doth the pilot, becaufe this court doth fteer and 
govern the ftiip of the common -wealth. Others, becaufe it is 
full of windows; but the true caufe of the name is, becaufe, as is 
aforefaid, the roof is ftarred. In all records in Latin, it is called 
camera Jicllata. 

The procefle in this court \%fuppcena^ attachment, procefle of re- 
bellion, &c. all under the great feal. 

In this court there is the clerk of the councel), which is an of- 
fice of great account, and truft, for he is to receive, endorfe, enter, 
keep, and certifie the bils, pleadings, records, orders, rules, fen- 
tences and decrees of the court : and I find that in former times 
men of great account have had that office in this court: as to give 
you a little tafte thereof: king H. 6. by his letters patents, 15 July 
anno regni fui 22. granted the fame to Thomas Kent do(^or of 
the law for his life, calling him clerkum concilil nofiri^ and foon 
after fwore him of his privy councell. King H. 7. anno i. of 
his reign, granted the fame oftice to John Bladefwell doftor of 
laws for tearm of his life : but hereof this little tafte Ihall fuf- 

Laftly, it remaineth to be {^tx\ what jurifdiftion this court hath 
in puniihment, and where, and in what cafes this court may in- 
flict puniftiment by pillory, papers, whipping, lofte of ears, tack- 
ing of ears, Jiigmata in the face, &c. (For it extendeth not to any 
offence that concerns the life of man or obtruncation of any mem- 
ber, the ears only excepted, and thofe rarely and in moft hainous 
and deteftablt; offences.) But herein the fureft rule is, that feeing 
it is an ancient court, the prefidents of the court are to be follow- 
ed, and the rather for that the court confiftetii of fuch learned and 
honourable judges. And novelties without warrant of prefidents 
are not to be allowed : generally fome certain rules are to be fol- 
lowed, cfpecially where no prefidents are extant in the cafe. * Q/W 
arhitrio ju.iids relinquifur^ non facile trahtt ad cffujionem fanzuinis : for 
general! a<5ls of parliament which inflict punifhment, viz. fur for' 
ftiture dc corps et de avoir, Effc. thefe are expounded not to extend 
to life, or member, but to imprifonmen% &c. 

Sec the f:rft part of the Inftitutes, fe(fl. 745. verb. Felony, ilfa- 


The name of this 




<^ In many of the 

records before 


f 25H. 8. ca. T. 


Sir Tho. Smith. 

lib. 2. ca. 4. 


Officer i of the 
court jwirn. 

20. 'i. i^ipottf' 
ttitem Jihi Jumit 
inju/ie, odietur. 
• Seefiatut. de 
mont-fa tempt 
E. I. 35E.1 
20 E. 3. ca.f. 
And note where 
he (hih lofc his 
ears for deiama- 
tiofl of rhc queen. 

66 For RedrefTe of Delayes of Judgements. Cap. 6« 

jore pcena ajfecius, qumn Icgihus Jlatut'' cjt^ non eft infamis. Poena gr a* 
• vior ultra legem pofita ajilmationem confervat. Confejfus in jure pro judi - 
cato habetur^ cum quodajnmodo fua fententia damnatur. Cum confilentc 
fp07Jte mitius eft agendum. 

In Jiac curia non agitur de deliilis ordinariis^ ne dignifas hujus curiae 

Quicquid judicis autJiorifati Juhjicitur.^ ncvltati nonfuhjiciiur. 

1 67 3 

CAP. tr. 

A Court for RedrefTe of Delayes of Judgements 
in the Kings great Courts^ 

J4E.3. cap. 5. 
lUt. I. 

Kot. pari, a R 2. 
jiu. 63. confirm- 
ed by parliament. 

Tu<}gfments de- 

♦ Nota, >5ygcod 
advice of rhe 
trealurer, and 

vu dices. 

Good, .ucord. 

Vide Rffg'.ft, 
io. 124, b. 
Rex Johannt de 
JB. Milit', &c. 

'npHIS court is raifed by the ftatute of 14 E. 3. which follovvetb 
^ in thefe words. 

Itsm.^ Becaufe divers mifchieves have happened of that, 
that in divers places, as well in the chancery, as in the 
kings bench, the common bench, and in the exchequer, be- 
fore thejuftices afligned, and other juftices to hear and de- 
termine deputed, the judgements have been delayed, fome- 
times by difficulty, Ibmetimes by divers opinions of the 
judges, and fomctime for fome other caufe : it is alTented, 
eitablifhed, and accorded, that from henceforth at every par- 
liament iliall be chofen a prelate, two earls, and two barons, 
which (hall have commiiHon and power of the king to heare 
by petition delivered unto them the complaints of thofe that 
will complaine them of fuch delayes and grievances made, and 
they fhall have power to do come before them at Weftmin- 
fler, or elfewhere, where the places or any of them fhall be, 
the- tenor of records and procefTes of fuch judgements fo de- 
layed, and to caufe the fame juftices to come before them, 
which {hall be then prefent to hear their caufe and reafons of 
fuch delayes : which caufe and reafon fo heard by * good 
advice of themfelves, the chancelor, trcafurer, the juftices of 
the one bench, and of the other, and other of the kings coun- 
cell, as many and fuch as fhall feem convenient, fhall proceed 
to take a good accord, and make a good judgement: and ac- 
cording to the fame accord fo taken, the tenor of the fame re- 
cord, together with the judgement which fhall be accorded, 
Ihall be remaunded before thejuftices, before whom the plea 
, did depend; and that they fhall give judgement according to 
the fame record : and in cafe it feemeth to them that the dif-:> 
ficulty be io great, that it may not well be determiaed with- 
out alFent of the parliament, that the faid tenor or tenors (hall 
be brought by the faid prelate, earles, and barons in the next 


Cap. 6. For Redreflc of Delayes of Judgements. 67 

parliament, and there (hall be a final accord taken what judge- 
ment ought to bo given in this cafe, and according to this ac- 
cord it (hall be coinniandcd to the judges before whom the plea 
did depend, that they (hall proceed to give judgement without 


Hcfore i!ie making of thl^ ftatute delay of judgements was forbid- R-gia. 13 r. i. 
den both by the conmion law, and by rt6ls of parliament.. By the ^- N B. 23. c 
common law. i. It is required, th^t pLna e/ aL'nsju/titirtfijt par- And fo upon co- 
tiiuSf Cd'c. not plena alone, nor cr/mx alone, but both /Av;^ £•/ f^- " •"* . 
/cris. All wviXs of praecipe quod reJtlat^ are, Quod juj}e etji'ie Jila- 
ttone reddat^ ^c. All judicial writs ViXt fine dilatimcy (sfc. 2. There 
did and yer doth lyea writ </<'/)rotW(f«^o .t^y//^/;W«w, when the juf- Rcgl/>. To. 22. 
tlces or judges of any coUrt of record, or not of record, delayed the ^- ^V^^-^'^^^' ''* 
party plaintife or defendant, demandant or tenant, and would not Narm."cap 27. 
give judgement i and thereupon an aliasphr\ and an attachment, 
&c. doth lye. And the words of the writ be, Quia reddkio judicli L "° J 

kqi eJa" qiue eft coram vob'is^ ^c. de quadam tymifgrejfime eidem A. per Diutuma dila* 
purfat^ B. itlata, ut d'tc'iUo\ diuturnam cep'it dilationcm ad grave da?n- t'o- 
num ipfiiis A.ficut ex querela Jua accepimus, vohls prceclpimus quod ad ju- 
dicium inde reddendum cum ea celeritate <pue fecundum legem d confuetu^ 
d'mem rerni rw/lri ptocedas, ^c. 

3. Likewife when jufticcs or judges oi^ anV court of record, or Regi^. To. 1?. 
hot of record gave judgement, and delayed the party of his execu- FN.B. fo.zo. a> 
tion, the party grieved may have a writ de executione judicli ; by ^' 

which writ the juftices or judges are commanded, Quod executlomm 
judicli nuper redditi^ Cfft. de loquela quo'fuif^ &/r. per breve nofirum^ \Sfc, 
fine dllaritme fieri fiac\ And thereupon an alias^ plur* ziid attach- 
ment, &c. do lye. 

4. By the meeting together upon adjournment of the caufe out ^^'^ hereafter, 
of the court, where the caufe dependeth, &c. All the judges,^ a^'a^^^^h'^"'^'^ 
Sjx. which now we call an exchequer chamber caufe, warranted by chamber ^*^"^ 
the common law and ancient prefidents beforfc this ftatute : and 

the frequent ufe of this court of exchequer chamber hath been the 
Cciufe that this court upon the a6l of 14 E. 3.. hath been rarely pK 
in ure. 

5. By the kihgs writ comprehending ^/Wyf dlficukas atlqua in- 2 E. % fo. 7. 
ierfit, that the record fhould be certitied into the parliament, and £iiys Callers 

to adjourne the parties to be there at a certain day. Si obfcurum el "fc. B raft. lib. f» 

Jifiicile fit judicium^ ponantur judlcla in refipeB.^ Hfq^iC magham curiam. *^^" *" ^°^* ^ ' 

An excellent record, whereof vou may read in the parliament sfrGe^. Sun/* 

holden at Weftrainfter the Tuefday after the tranllation of Becket, tons cafe, 
<Knno 14 E. 3. 

Secondly, by a^ls of parliament. ln^ulU. i^endemttSy nulU negahimzist. Mag. Cart. 

^t dlfferemus jufiltlam vet return. '^ "• *9' 

That it (hall not be commanded neither by the great-feale, tiof 2 E. 3. f% %, 

by the little-feale, nor by letters, nor any other caufe to delay per Aidham. 

right : and albeit fuch commandement come, &c. that by them the |g £ V°"'^*t' 

jiillices furceafe not to do rii^ht in no manner, f^ide 2 E. 3. cap. J, £.3. an! 161. 

8. 14 E. 3. cap. 14. 18 E. 3. ftat. 3. 2 R. 2. a ftatute not in 39 E. 3. 37. 

print, Rot. pari. nu. 51. whereby it is e-v^^ed, that no judice fliall n H. 4. 5. 76- 

flay juftice for any writ, letter of the great-feal or privy-feal, of 9 "• 6- 5^- *>• 

•ther commandement whatfoever a {ainfl the laws and Uatutes before \„^^^ ^^^^ ^ 

IV. Ikst. C that F. N. B. Hoi 

68 For Redreffe of Delayes of Judgements. Cap. 6. 

that time made, Rot. par. 2 H. 4. nu. 64. anno 5 H. 4. nii. 33. all 
* ^*l?~ ^"^ J which are declaratory of the common law. * And upon the faid 
w,^ ,B. 240. , a«5l of 2 E. 3. a writ is framed, direfted to the juftices, by which 
they are commanded, Quod ad jufiit'tam partzhus, ^s^c. faciend^ vir- 
tu te aliatjuj mandati de magno JigiUo^ et parvo Jig'dh vohis direB'' feu 
dzrigend' nidlattnus fuptrftdeatis^ ^c. And thus much for the com* 
mon law and a<^s of parliament. 

This (latute of 14 E. 3. cap. 5. confifteth of two generall parts, 
viz. the preamble and the body of the 2.^. In the preamble 
three things are to be obferved. i. That (notwithftanding the 
provilion of the common law) mifchiefs do happen by delay of 
judgements. 1. It enumerateth in what courts thefe delayes do 
happen, viz. in the chancery, in the kings bench, the comimon 
bench, and the exchequer, the jullices affigned, and other juf- 
tices to hear and determine deputed. 3. It declareth how thele 
delayes have grown, viz. fometime for difficulty of the matter in 
law, fometime in diverfity of opinion of the 'judges, and fome- 
times for fome other caufe, that is, by commandements, letters, or 
meffages of the king or great men, &c. In the body of the a^ 
we have collated many obfervations. i. That at every parlia- 
ment there (hall be chofen a prelate, two earls, and two barons, 
(or one bifhop, two earles, and two barons.) viz. At this parlia- 
ment were chofen, i. John Stratford archbifhop of Canterbury, 
(a man famous for learning, loyalty, and vertuous living.) 2. Rich. 
Fitzalan earle of Arundel, a man of great wifdome, prowes, and 
integrity. 3. William Clynton earle of Huntingdon, and admi- 
rail of England, a man lately before advanced for his fingular va- 
lour, wifdotne, and vertue. 4. The lord Wake of Lidel. and 
5. Ralph lord BalTet of Drayton, two of the moft renowned ba- 
rons of England. Quos omnes honoris caufa nomino. 
( 69 ] 2. This a<5l doth appoint that the prelate, two earls, and two ba- 

rons ate to have a commiffion and power of the king under the 
great feal (and none of them can be abfent) which commiffion is 
to en«3ure untill the next parliament. 

3. This commiffion and power confifteth on ten parts, i. Ad 
audimdum^ to hear the petition delivered to them, the complaints 
of thofe that will complain to them of fuch delayes or grievances 
made. a. Ad 'venire faaend' to do come before them at Weft- 
minfter, or elfewhere, the tenor of the records and procelTes of 
fuchjudgemcntsfo delayed; and this is to be done by the kings writ 
of ceitiorari. 3. Ad venire faciend\ to caufe the fame juftices to 
come before them. 4. Ad audi end' fuas ratio?ies et caufa s talium di^ 
lationusn^ to hear their reafons and caufes of fuch delayes which 
ought to be entred of record. 5. Which caufes and reafons fo heard, 
ad procedendum^ to proceed to make a good accord. 6. But this muft 
be done not only by themfelves, but by the good advice of certain 
affiftants appointed by the ad, viz. the chancelour, treafurer, the 
juftices of the one bench and the other, and other of the kings coun- 
cell, as many, and fuch as they fliall think convenient. 7. Ad ca» 
piendum^ to take a good accord of the affiftants. 8. Ad faciendum^ 
to make a good judgement. 9. Ad remandandum^ to remaund be- 
fore the juftices, before whom the plea did depend, the tenor of 
the f^id record, together with ihe judgement that fo fliall be ac- 

Cap. 6. For Redrcflc of Dclayes of Judgements. 

corded. Lallly, that thofe julliccs (hall "prefently give judgement 
accordinjT to the faid record. 

A commilliun granted in i8 E. 3. grounded upon this ftntute, 
and referring to the lame bting ena<^ted, as there it appeareth, at 
a parlianu*nt holden Jie Mncwii proxlm' pojl medium quadrarefima 
anno 14 J?. 3. rc^ni An{ltee et Francie primo^ there being two par- 
liaments in that\vear, whicij you may reade, being worthy of ob- 
lervaiion, for it is a good expofition of this z€t. 

4. It is further provided by the Hiid act of 14 E. 3. that in cafe 
it feemeth to ihcm» that the ditficulty is fo great, that it cannot well 
be determined without aflent oi' parliament, that the tenor or tenors 
fliall be brought by the faid prelate, earls, and barons unto the 
next parliament, and there (liall linall accord be lakeii what judge* 
ment fiial! be given in this cafe. 

* It is bcttcn- that the demandant be delayed, then the tenant dif- 
herited, or that the law be altered. Shard. We cannot nor will delay 
anv man in refpc»5t of our oath. 

^ The juftices ought to delay no man in the name of the king 
where the king hath no right. Tne demandant fliall n(3t be legally 
delayed twice for one cauie. 

* Delay in a quare impedlt^ though it be by eloign, is a diflurb- 
ance. ^ Stmpn- fur eji in mora. ' In circnliu impii ambulant, 

^ In divers cafes the party grieved fliaii have an a6tion for un- 
juft delay. 

8 Tolk morarn, fe?npey mcuit differ re par atis 

But feeing neither the common law, nor any of the a(5ls of par- 
liament do extend to ecclefiaflicaii courts, it is then demanded, 
what if an inferiour ordinary will refufd, or delay to admit and jin- 
^itute a clerk prelented by the right patron, to a church within his 
dioces, or the like : or delay, or refufe to give fentence in a caufe 
depending before him. It is anfwered, that tlie archbifhop of the 
province may grant his h letters under his feale to all and lingular 
clerks of his province, to admonilli the' ordinary, within nine 
dayes to performe that which by juftice is defired, or otherwife to 
cite him to appeare before him or his officiall at a day in thofe 
letters prefixed, and to cite the party that hath futFered fuch delay, 
then and there likeaife to appeare, and further to intimate to the 
faid ordinary, tlia^ if he neither perform that which is enjoyned, 
nor appear, he himfelfe without further delay will performe the 
juftice required. Or in the former of the faid cafes, the party de- 
layed may have his quare imp, but that is thought not to be ff 
Tpeedy a remedy. 


P^uht concfrn'ieg 

13H.4. 4, 
24.E. 3. 04. a. 

''4^. 1.2.3. 
22 H. 6. 39. pet 
10 E. 3. 57. 
40 E. 3. 22. &c.' 

•=4 £3-14. 
6 E. 3. 4. 

^ Bradion. 

^ Piaf. 12. 9. 

Ua^. 3.4- 

iS E. 3 12, 13. 

20 H. 6. 10. 

21 E. 4, 12,23. 
F. N. B. 96. f! 
97 b. 

S Ovidtus. ' 
^ This ;s ca!l«4 
duplex qufrehf 
neceffary 'to be 
known for find- 
ing cf inftitu- 
tlons, &c. 

G a 


yo ' The Court of Kings Bench • Cap*y^ 

CAP. VIl. 

The Court bf Kings Bench, coratji Rege, 

h\h. 3. cap. 7. TjR ACTON doth make in few words a notable expreffioft 

to. £05« b. J3 of this court. Haiet rex phres curias in quibus di-otrfa aBiones 

ler?ninaniur^ et illariim curiarum Jiahet utiam propria?)!^ Jicut att- 

lam re-'iam^ et ju/iiciarios capitaies qui proprias cavfas reg'ias terminanty 

et aliorum omnium^ per querelam, vel per privilegium^ Jive libertatem. 

Fa loS. a. And foon after fpeaking of the juftices of this court faith : Item 

jujliciariorum quidam funt capitaies^ generaks^ perpetui^ et majores a 

latere regis rrjidentes^ qui omnium aliorum cm'rigere tenentur injurias, et 

err ores. 

And Brltton faith : In droit des jujiices que font ctjjignes de nous fuer 

* Nota. *^ /^«(fr nojire Urn ou q. nous feons en Angliterre. * Vcilons que eux eiant 

conufam de amender faux judgements et de terminer appeales et auters 

* Aeran'tcrpro- trefpaffes faitz enconter nojire peace, et '* enconier noftre jurifdiSlion, et 
liibittons. ^'^u^' record fe ejieant Jolonq; ceo que nous manderons per nojre bre. 

Fleta in defcribujg this court faith: Habet et rex curiam fuam et 
juficiarios fuos tarn milifes quam clericos locum fuum tenentes in Anglia^ 
coram quibus, et non alibi nif coram femetipfo et concilio fuo vel audi- 
toribus fpecialibus falfa judicia et errores jujliciariorum revertuntur et 
eorriguTUur : ibidem etiatn terminantur brevia de appellis, et alia brevia 
" - J^P^f a^ionibus criminalibus et injuriarum contra pacem regis illatai um 

impetrata, et anmia, in quibus continetur ubi tunc fuerimns in Anglia. 
LiWhig€rm ^^ ^^e Black Book of the exchequer, it is thus faid of the chief 

fcaccaiio, cap- 4. juftice of this court : capitalis jijlitia prafdet piitnus in regno. Out 
of thefe three ancient authors we obferve thefe fix conclufions. 
Firfl, where Brafton faith, Habet rex phres curias in quibus diverf^ 
« Note this word aSliones * terminantur ; hereby, and in effedl by ^ Britton, and this 
^ See Brirton, conclufion foiloweth, that the king hath committed and diftributed 
f. I- fpeaking ^ ^jg whole power of judicature to feverall courts of juftice, and 
of the king, t tiigj-efore the judgement mud be idco confderatum eji per curiam. 
^"/fufBjom in And herewith do agree divers acts of parliament and book cafes, 
nofire profer per- fome whereof, for iliuftration, we will briefly remember; and leave 
fon a aier & ter- the judicious reader to the reft. 

tniticr toutt querels b Prcrjijum, eoncor datum et concejfum eft, quod t am majores, quam mi- 
de pcope. V J- j^^^^ jiftitiam habeant et ncipiant in curia domini regis. ^ That the 
*charge en plujois l^wes ecclefiafticall and temporall were and yet are adm.iniftred, ad- 
parti come eft or- judged, and executed by fundry judges, &c. ^ Expedit etiam yna- 
deinst (3'c» gijiratus reipublicee conftitui, quia per eos qui juredicendo pr^efunt effeHus 

b°- \ m^ik" ^^^ accipitur ; parum efi enimjus in civil ate ejje, nif fnt qui pojfunt jura 

\^i . 'i R 4. * * For the pleafure of God and quietnefle of our fubjeds as to 

ca. 22. fave our confcience, and to keep our oath, by the aflent of our 

c. jj ?.cap. 2. great naen and other of our councell, we have commanded our 

i"R^^?'i*h juftices, that they fliall from henceforth do even law and execution 

ca ? toL 3. b* ^^ ^^S^^ ^^ ^'^ ^"'* fubjefts, rich and poor, without having regard 

c 20 E- 3. cap. !• to «iny psrfon, without letting to do right for any letters or com- 

fpeaking m the ' niandemeiit 

Cip. 7. The Court of Kings Bench. -f^o 

irandemciit which may come to them from us, or from any othov 

or by an V other canfe. W. r. ». 3 E. 1; 

A^rtcjaMe to that great canon of the law mno 3 E. i. which we ^"P* •• 
have iranfla ted into Latin : Rex pracipit quod pax facr^fanSl/e ecclefie ^^'"* '*'•'• 
et regni folini cujhdintur et cmfervctur in ommbus;^ quolq; jujlitiafingulh 
tam pauper i JUS quam divitibui adminifiratur^ nulla habit a perfonarum L 7 ' J 

rat.onc. Sjc the fecond p^rt ot liie Inftitutes, W. i. cap. i. 

8 K. 4. the king hath committed all his power judicial], fomc 8^-4* ^- »9- 
in one court, and lome in another, fo as if any would render hiin- 
ftifc to the judgement of the king in fuch cafe where the king 
hath committed all his povvcr judiciall to others, fuch a render ,„ , ^ - 
ihnuldbe to noeffca. And 8 H. 6. the king doth judge by his Grit; F°c! ^"^ 
judges (the king having diftributed his power judiciall to feverall 
foun^) and the king hath w holly left matters of judic-atiire accord- 
ing to his liwes to his judges. 

And albeit it be ena<fled that the delinquent fliall be fined at the zR.j. fol ir, 
will of the king, Non dominus rex in camera fua^ nee aliter niji per 
Jufliciarios fuos (Juiem imponit) et heec eji voluntas regis, viz. per jufti' 
ciarios et legem fuam^ unu?n eft dicere. 

The fecond co.iclufion is, that in thofe dayes this court of kings 
bench did follow the court : and therefore Braxton calleth it aulam 
regiam, becaufe they fat ii the kings hall. Britton calleth the juf- 
tices of thi.s court, jujlices ajjigne^ de nous Jiter : and Fieta, uii tunc 
/uerimus in Jnglia. 

The third is, that it is called the kings bench, and the pleas 
thereof coram rege : becaufe in this court (as Bra^lon faith) thofe 
capitales ju'liciarii proprias regis caufas terminant, and therefore the 
kiiTg himfclfe cannot be jU(ige /;/ propria cavfa. 

The fourth is, that under thefe words S^propiias caufas) are in- Ofthefeyou 

eluded three things. Firft, all pleas of the crcwne ; as all manner may read in 

ol treafons, felonies, and other pleas of the crown which ex con- Glantil. Ijk i. 

^tto, are aptly called propria cauja,' regis, becaufe they are piacita "J*' ^^*^' ^g^ 

cmon^ regis. Secondly, regularly to examine and correal all and and in the third 

all manner of errors in fa':r^ and in law, of all the judges and juf- part of the In- 

tices of the • realm in their judgements, procefle, and proceeding ftitutes /^^-r /s. 

in courts of record, and not only^in pleas of the crown, but in all ""^' ^ ^^*"^* 

pleas, real!, perfonali, and mixt, (the court of the exchequer ex- ^^^ '"?"". 

cepted, as hereafter ihall appear.) And this is pro:rium quarto niodoto *c m Ireland 
.1 , . . , . .r'^ ^ I ' ■( . . i-i 0* err.)rs in tne 

tne^ king m this court : tor regularly no other court hath the like ^\^^^ trench 
jurifdii'^ion, and therefore may be well called propria cavfa regis, the.e. lib. 7. 
and thefe two be of high and foveraign juriidiaion. » Thirdly, this *"o- i8. F. N. B. 
Court hath not only jurifdiftion to con-e<5t errors in judicial! pro- **• W- Afl*. 7. 
ceeding, but other errors and mifdemeanours extrajudicial! tending ^^ /^' ^^^ 
to the breach of the peace, or opprellion of the fubjefts, or raifing of t^^'^bV: pscafc 
fa<ftion, controverfy, debate, or any other manner of mifgovern- V|j* lo^l"," 
ment ; fo that no M'rong or injury, either publick or private, can be ca. 3. Mar- 
done, but that this (liall be reformed or punifl\ed in one court or flwilea. 
other by due courfe of law. As if any perfon be commitred to 
prifon, this court upon motion oug'.it to grant an habeas corpus^ 
and upon returne of the caufe do juftice and relieve the party 
wronged. And this may be done though the party grieved hath 
no priviledgc in this couit. It granteth prohibitions to courts 
temporall and ecclefiafticall, to keep them within their proper ju- 
fifJidion. Aifo this court n.av baile any perfon for any offence 

G 3 what". 

^t The Court of Kings Bench, Cap. 7, 

whatfoever. And if a freem?.n in city, burgh, or town corporate 

be dibfranchifed unjuftly-, albeit he hath no priviledge in this 

court, ytt this court n^ay relieve the party, as it appeareth in James 

Bagges cafe, ubifupra^ et/ic in fimilihus , 

r. N.B. 89. 92. Fourthly, this court may hold plea by writ out of the chancery 

coram ?e^e '' °^ ^^^ trefpafles done vi et armis, of replevins, of * quare impe- 

rot. 56.' Line. ^'^i-Mc 

^ 2 pare of the ^^^ ^'^^ fecond part of the Inflitutes, the 1 1 chapter of Mag. 

Inllituces, Mag- ^^^'ta, Commiinia placita ncn fequantur curia-m mjlravt. 
naCarta,c2p.ii. _ Fifthly, this court hath power to hold pita by bill for debt, de- 
tinue, covenant, promife, and -cXX other perfonall anions, eji^aime. 
firme, and the like, againft any that is in cufi-dia marefchdli ^ or any 
officer, minider, or cierk of the court : and the reafon hereof is, 
for that if they fliould be fued in any other court they fhould have 
the priviledoe of this court : and left there fbiould be a fayler of 
juftice (which is fo much abhorred in law) they lliali be impleaded 
here by bill though thefe a6lions be comm.on pleas, and are not re- 
[ 72 ] ftrained by the faid aft -.f Magna Carta, iibi fupra, Likevvife the 

officers, minifters, and clerks of this court privileged by law in 
refpeft of their neceirary attendance in court, may impleade others 
^arVd'%hc L^ ^'^ ^''^ '" ^^^ anions forefaid. And all this appeareth by Brafton, 
flitutes ^ubi "' ^^^^° X\yt<^ whtw Magna Carta was made, uoi fupra : where he 
Aipra. 27 H. 3, f^^th, Ei alicrutn omnium p:r querelam I'd per privjlegium Jive liherta- 
coiainrege. tern. And continuall experience concurretli with antiquity herein. 

^^- 9' H' P. ca/ius per querimcniam mefcatorvm Flandricv et imp'ifcnatus 

uz Uaut. ^g-^yf cicmino ?rj^/hus et haut in pkgio adfiandiim re&o^ et ad refpon- 
dendum proidihi'! ?mrcatorihus, et cnvibus aJiis qui veyfus ewn loqui v)- 
luerint^ ^c. This plea was after t'^ie flatute of Magna Carta, anno 
9 H. 3. Of thefe words Zt/j and haut^ two French words. Hus 
lignifying an elder tree, and haut the fiaffe of a halbcrr, ^z. I 
leave the conjefture that iomt have made thereof to themfelves : 
we think it was then common bail changed now to Do and Ro^ and 
the rathe for this word [cffnt.'] And it is obfervable, that then 
putting in baile at one mans I'uit, he was in cuftcdia marej<:kalli to 
anfwer all others which would fue him by bill, and this continueth 
31 H. 6. 10. b. to this day. If any perfon be in a/Jicdia Tnaufchalli, <Dc. be it by 
adjudge. Commitment, or by latitat', bill of Mid' or other proces of law, 

it is fufficient to give the court j.uriidiftion : and the rather, for 
that the court of common picas i- not able to difpatch all the fub- 
jefts caufes, if the faid aftions fliould be ccnfihed only to that 
court. And fecrrg none but ferjeants at law. can pracftife in the 
court of common pleas, it is neceffary that in this coi;rt of kings 
bench apprentices and other counfellors of law might by experi- 
ence inable tliemfelves to be called ferjeants afterwards; otherwife 
ferjeants muft want experience, which is the life of their profef- 
iioD. And the proceedings in that court for fo long time, and 
under fo m.iiiy iionourable juv'^ges and reverend fages of the law, 
hath gotten fiich a foundation, as cannot now without an aft: of 
parliament -be iliaken. And the errors in the kings bench cannot 
be ravened (but in certain particular aftions by the flatute of 2'/ 
Fliz. cap. 8. wherein <^he jurifdiftion of the court is faved) but in 
the high court of parliament, as before in the chapter of the cour^ 
of parliament appearctli. 

Cap. 7. The Court of Kings Bench. yt 

Sixthlv, if a wnr in rcall aftion be abated by judgement in the » TT r t»- 
couri ol common plciis, and in a writ of error the judgement is l^^'^'^^' 
rcverfed in iliis court, and the writ is adjudged good, this court ,j H.^jTio 
iliall proceed upon this writ, and is not retrained by Magna Carta^ nauvo babcnd»> 
uhi fupra^ ne curia domini repts defice\et injufiitin exhibenda. 

Tliis court may hold plea in aflife ot nwd d'i£njin without 2x\j *'• "N' B. 177. 
patent, for it is querela and not pJacitum, and fo not within theie ^^^^ ^^ 
words ctmmunia fJaei/a, as it hath been expounded and warranted 
by rontinuall experience. 

' A/dre/ac' to repeal a patent of the king may be brought in 3H.4.7. 
this court. And where ^'leta faith, l^ijl coram femetipCo et conctlio 
fuoy vel auditoribm fpecialib* fal/a judicia ac errora jufiiciariorum rc~ 
xrrtuntur : It is to be known that all the common law errors in th^ 
court of exchequer (being the proper cou^t ot the king for his rc- 
vciuie and protit) were examinable before commilfioners appointed See mow fcerrof 
by the kin^^s writ under his great feal, which Fleta here calleth au- »n the chapter of 
ditmesfpecfaks. But now by the ftatute of 31 E. 3. the chance- ^.jE.*,'. c^^zi. 
lour and treafurer taking to them the juftices and other fage per- ' 

fons, fuch as to them feemeth to be taken, (hall examine the errors, 
in the exchequer, &c, 

* In ancient time, when pleas were holden in parliament, when * Kot.par. 

the parties defcended to ilTue, the record was adjourned into the J ^ ': nu-97- 

,.»,,,.,, "^ riacir. ml. jo. 

kings bench to be tried tlrere. jjc novoBurgoic 

** See the ftatute of W. i. againfl prenofterous hearings in this Regraan, jcc. 

court, and the expofition of the fame in the fecond part of the In- b w ,^ ^ 

ftitUlPS. ^ Againft pr/pof- 

* By the'flatuteof ^;v/t'^/>^Gr;7. thcchancelourand thejuilices teroos beanngs. 
of the kings bench were to follow the court : but notwithftanding c ^rr. fup. cart, 
both the chancery and the kings bench were at this time fetled ^SE- 1. cap. j. 
courts during the fevcrall terms * of the year, as by infinite records Gia-.. tcmp«. 
both before and after this ftatute doth appear. So as at this time gc'^b*^^'^^'^ 
they did not attend in the kings court, but when they were called Ceram fu/!iciis 
yet were accounted as parcell of the kings houfhold as long as domini regii im 
they followed the court : but this cumberfonie attendance wholly ^""^0 JfHemihus, 
cea'fed in the rtign of E. 3. and yet the lord chancelour would ^"^ ^^djuJuat* 
have had his purveyance, as if he had continued ftill as one of the J^'e^rv ti'fmi'* 
houftiold, untill he and all others, but thofe of the kings, queens, fr«ru i e. a!du- 
or princes houlhold only, were reftrained by a£V of parliament, ring all his reign 

34 E. 3. cap. 5^. •f' «vei7 Overall 

^ term in thej tare. 

And in all thofc 
times and termes the court of chancery did fit. 34 E. 3 ca. «, 


Alfo upon penifaU of the records in the reign of H. 3. from the And fo did the 
beginning of his reign untill the ending of it, this court fat in the chancery both of 
term time where the other courts of juftice did fit. And the pleas ^^^^ ^«'ng to 
were ftiled to be holden coram ri'ge as to this day they are : and this ^'*'"' purpofe* 
appearethby Fitzh. Abridgement, in the titles of Corone, of Brief, ;t"ap°,J^arethfn** 
of Waft, &c. and by Bra(5ton who in many places voucheth the chanter of 
judgments in the reign of H. 3. in terms coram rege. .And this the court of 
appcarcth alfo in elder times : but hereof thus much fliall fuffice to chaaccry. 
prove, that at the making of the faid a(^ of 28 E. i. and long be- 
fore, this court in term times fat with the kings other courts, 
^nd fpecially for pleas of the erown, &c and that the fisud aft 

G 4 is 


3 $l.Dler 187. 
^7 Aff. p. 1. 

7E. 4 18. 
4H. 7. 18. 
14 H. 7.21. 
li. 9. to. 118. a 
& b. 

Segnior San- 
chers cafe. 

17 E. 3- 13- a; 

Jib. 4, fo. 57. in 
the Sadlers cafe. 
tl.Com. 262. 

» 21 Aff. 12. 
47 aff. I. 28 aff. 
52. 21 H. 7.29. 

l>Pafch.i2E. 3. 

coram rege, 
"tV. I. cap. 3. 
lib. 9. fo. uS. 
libi iui^ra. 

Hll. I J=ic. Sir 
iy\:a!ter Raleighs 
caff, &c. 
1^1. Com. £0388. 
count de Leic' 
tafe ?.cc'. 

5.2 E. 3. 6. b. 

2:4. E. 3. 73. 
29 afi. 52. cor. 1 £> 

6 H. 8. cap. 6. 
It; extcndeth on-, 
3y to felonies, 
and nr^urders. 

[74 J 

r>ec befoie cap. 
v/lien a wric of ' 
error is fued of a 
judgrtient, coram 
rege, they pro- 
cc^cjupet tiri:,rrm 
7 ecordii and th 
rccofd it ielf ' 

^ H. ;. cap. iOj 

The Court of Kings Bench. Cap. 7. 

IS to be Intended, that the chancelour and the judges of this court 
Ihould attend the king and follow the court when they were re- 

It is truly faid that the juflices^/i? lanco regis have ftipream autho- 
rity, the king himfeif fitting there as the law intends. They be more 
then juftices in eire. 

The juftices in this court are the (overaign juflices ofoier and 
terminer, gaol-delivery, confervaiors of the peace, &c. in the. 
realm. See the books in the inargent, you Ihall find excellent 
matter of learning concerningthe fupream jurifdidtion of this court. 

In this court the kings of this realm have fit in the high bench, 
and the judges of that court on the lower bench at his feet ; but 
judicature only belongeth to the judges of that court, and in his pre- 
fence they aniwer all motions, &c. 

The juftices of this court are the foveraign coroners of the 
land, and therefore where the (lierif and coroners may receive 
(ippeals by bill, a fortiori the juftices of this court may do it. 

* So high is the authority of this court, that when it comes and 
■fits in any county, the juftices of eire, of oier and terminer, gaol- 
delivery, ^ they which have conufance, &c. doe ceafe without 
any writing to them. But if any indictment of t^^eafon cr felony 
in a furaign county be removed before certain co.nrmiftior.ers of 
oier and terminer in the county where this coyrt fits, yet they may- 
proceed, becaufe this court (for that this Indiftment was not re- 
.HKjved before them) cannot proceed for that offence. But if an in-p 
dicrment be taken in Midd. in the vacation, and after this court fit 
in the next term in the fame county (if this court be adjourned), 
then may fpeciall commiflioners of oier and terminer, &c. in the 
interim proceed upon that indidment, but the more ufuall way is 
by fpeciall commiffion. And a|l this was refoived by all the 
judges cf iii"ngland at Winchefter te;rm, anno i Jacobi regis, in the 
cafe of Sir Everard Digby and others : and (o had it been re- 
foived, Mich. 25 & 26 £liz. in the cafe of Arden and Somervile, 
for this kind of Ij ecial commiffion of oier and terminer: and here- 
with a-recth PI. Com. in the earl of Lcic' cafe, anno i Mar. regina. 

And fo fupreani is the jurifdiftion of this court, that if any re- 
cord be rem.ox ed into this court, it cannot (being as it were in his 
centre) be remaunded back, unlefte it be by iid" of parliament. And 
this ;;pj eareth by the judgment of the parliament in anno 6 H. 8. 
but by the authority of that a6l indi{?:ments of felonies and murders 
removed into the kings bench may by the juftices of that court be re- 
^maundedjand this courtmay fend down as weli the bodies of all felons 
and r.iurderers, as their indi6tments into the counties where thefam^' 
murders or felonies were committed cr done, &c. in fuch manner, 
&;c. as if the indi61;,ments had not been brought into the kings bench. 
But the juftices of the kings bench of their own authority may grant 
dint/i p7ii:s in cafe of treafon, felon)-, and other pleas : for tl'.ere they 
fend but the tranfcript of the record, and not the record itfelf, as 
fiiall be faid in the cliapter of Juftices of mfifrius. But it the juf- 
tices of ti^e kings bench doe perceive that any indi>ftment is to be 
renioved into that court by pradife or for delay, the court may re^ 
fufe to receive the fame, before it be entred qf record, and re-" 
mand the fame back again for Juftice to be done. 

jBy the ftatute of a H. 4. the clerk of the crown of this court, if 

'' '^ ' ' fouricQ^Q 

Cap. 7. The Court of Kings Bench. 74 

fourfcorc or an hundred men be indi(5led of felony or trefpafTe, of 
one fclony, or one rrcfpalTe, and they plead to an ilVue, as not 
guilty, the faid clerk ought not to take for the venire fac*, nor 
for the entring of the plea but two ftiillings only, and not two 

iliillings for every one, which at^ is made in affirmance of the »6Aa: p. 47, 
common law. So if one man he indicated of two fevf-rall felo- 
nies or trcfpafles, and is acquiled, he iball pay but for one deli- 

Out of this court are other Courts derived, as from one fountain Defignatlojudi- 

feveral fprings and rivers, in relma of the multiplicity of caufes, '''"'''°r"'!V^?^.* 

which have mcrealed. Junfrliilto iftius curtte eft m^inalnjeu ordi^ ^^^^ oiJinaria "k 

mirioy ^ non delc^ata. The jultices oi this court have no commiflion, lege, 

letters patents or other means to hold pleas, &c. but their power is # cianvil lib x 

originnll and ordmary. Tiiey were calleti anciently * ju/iici^^juf- ca. 6, 13. &c. ' 

(iciariiy Ixum tcnentes ciomini regisy ^c. The chief ju^ice, ^jujii.ia faepenumero. 

jlngna, jufi'itia prima^ iufiiclarius Anglia^ jufljciarius AngUr capita- a ljj, p'ero in 

///, and ju'Hciarius m/fer capitalis ad placita coram nobis terminantl\ fcaccario. par. i. 

To obieirve tlie changes of thefe names, and the reafon and change ca. 4. 

thereof, is worthy of obfervation. ^^"^ '» any 

Before the reign of E. i . the chief ju(>ice of this court was created f^hlcl^wTh 

by letters patents, and the form thereof (taking one example for all) fcen')'^thc',^were 

was \\\ theie words. callpo fummijuf^ 

Rex^ (ffc. arckiepijcopis, epijcopisy abhafll^ust prior ihus^ com if thus, 'i'-'^' '• 
iaronihus^ vicecomitibus^ forejiariis^ et omnibus aliis fideh bus rtgni An- '^ot.cart.45H3, 
^//>, falutem. Cum pro confirvatiofie noftra^ et trnnquillitatis re^ni ^' 

nofiriy ft ad iujiitiam univerjis et Ji^iguHs de regno nojlro exhibendam con- 
fiituerimus dileBum et fiddem nojirum Philippum B ajfet juji'i ciai turn An- Capitalis jufti- 
glite quamdiu nobis placuerit ca.ita'cm. Fobis mandamus m fid", qua ciarius Angliae, 
nobis tcnemi7ii firmiter injun^entcs^ quatenus in omnibus qUiC ad offic'ium 
jujiiciarii pKvdiBi^ nee non ad cotfrvationem pacis noflr<e et regni nojlri 
e:d:m dum in officii prceaido fieterit^ plenius fitis intenticntss, Tejie re^ 
gfy Cifc. 

Herein 6 things are to beobferved. 1. That the creation of his 
office was by letters patents. 2. That this otficM was originally 
inftituted for three things, i. Pro con/ervatione no^ra. 2. Tran-i 
qudlitatis regni nojlri. 3. * Ad ju/iitiam univerjis et Jingulis de regno *»This was the, 
iwjlro cxluhtndam. The third thmg to be obkrved is, that he was <^''i'nal j-^rifdic- 
MtA julliciarius Anglian capitalis. 4. That Philip Ballet was confti- ^;^" °* ^^'* 
tuted chief juliice of England, and after made knight, for he was 
not knight at the making of the letters patents. This Philip was 
of Welled by in the county of Northampton, and was excellently 
learned in the laws of the realm ; he was younger brother of baron 
Balfet of Draiton Baifet in the county of Staff', c, Tliat he was 
condituted cunmdiu nobis placuerit. Laftly, the claule of attendance, 
and the perfotis that are to give attendance, &c. to him, are very 
remarkable. This Philip BafTet was the laft of this kind of creation 
by any like letters patents, and he died chief juftice neer to the 
end of the reign of H. 3. king R. 1. being a wife and prudent 
prince knowing that cut plus licet quam par eji^ plus vult quam licet^ 
(as moft of thefe fummi jujiiciarii did) made three aiteruions, 
I. By limitation of his authority. 2. By chzx^gmg/ummus ju^icia^ 
riusy to capitalis jujlic* 3. By a new kind of creation, viz. by 
yixxt^ lef^, if he had continued his former manaer of creation, he 



7S The Court of Kings Bench. Cap, j. 

might have had a defire of his former authority, which three doe 

cxprcfly appear by the writ yet in ufe. viz. 

Rex^ itSc. E. C. militifalutem. Sciat'zs quod conjlltmmm vos jv.fticia'- 

rium nojlium capitalem ad placita coram nobis tenenda^ durartte heneplu'^ 

cito nojiro. Tejie, ^c. 

Which vi^rit being called breve doth in few words comprehend 

the fubftance of the former letters patents : ^ox capitaUs jujiiciarius 

iiojlcrvindi ad placita cora?n nobis tenenda includes ail tliat which was 

truly intended to be granted to him in the former letters pa'ents^ 
-. which alterations were made by authority of parliament, tiiough not 

t V"the Con-' ^°^ extant. For it is a rule in law, that ancient offices muft be 
iJable and Mar- g^^^f^d in fuch foHTts and in fuch manner, as they have ufed to be, 
ihall for this unlefTe the alteration were by authority of parliament. And con- 
point, tinuall experience approveth, that for many fucceifions of ages with - 

out intermiffion, they have been, and yet arc called by the faid 
Rot. par. 25 t;. I. writ, et optimus kgrim interpres cofifuetudo. But after the faid ahera- 
fo named in the tion, viz. in anno 25 E. I. Reginaldus de Grey (was ^Atc) jufii- 
writofpania- «.rz?7Vj An^lia. and hc was in lepall proceedings called caphalii, 
H)e«t to him di- ■ n- • • n \. i- . ^ ^ . ,. . \;. . . , ,. 

reded jitjiiciarius nojter^ when his patent was, capitaiis jujitciarius Anghce. 

I^ota, this fine We have {<^tx\. a fine in thefe words: H^c e ft final is concordia 

was levied^ Inter faSia in curia domini regis apud Wejf a die fan ^i Michaeiis in ires fep' 

MartwumAoja^ t}jna?ii7s<; anno regni rec-is HenricJ filii regis JcJiannis 5. coram domino 

Juetert tn et^'" Hubertc de Bur go capitalijitjilciario AnglicS et aliis domni regis Jidelibus 

'i'hurjlanrum Baf^ t^^^c ibi prafentibus, 

fet defer cientemde * In the writ de homine reptegiand\ he (which was formerly call*. 

3 carucaf urra ed capitolis jvfticiariiis Anglia ) is called capitaiis juftic* rofier^ and. 

f. ^'^^' f^^.'^."'^ fometime cap. iuliic' re^is. The ftile of this court of kines bench is 

him mthekings a ?■ - ^ 1 • j' o. r i* ^ i • 11 1 

bench, in 3 H.^. Angha m the mnrgent ; and in divers aas of parhament he is called 

before Mag. Car. chief juflicc of England. 34 H. 8. cap 26. 37 H. 8. cap. is. 

and ftiied fd/zV. 2 E. 6. cap. 13. 5 E. 6. Cap. II. 

^upclar' AngUa, fhe chief juftice in Ireland is called capitaiis iufiiciai Hibernia at 

^ther fines with Pafch. 13 E. I. (the pleas in this court are coram rege) then 

the fame ftik, were filled thus, Placita coram locum d:mini regis tenmtibus^ cs'c. ideo, 

ap^eg'ft. fo. 77. '^^"^^ 'ii^de jiirata coram rege vtl ejus loca?n tenentibus. 15 Pafclue^ 

24 E. I. Jlaf de ^c within which words all the judges of the kings bench v/ere in- 

tcnfuhat" 3 E. 3. eluded, 
coron. 361. ^ b j^ji^ domini q6q. in the abbv of Ramfey this epitaph was en-. 

Lib.Int. Co. tit. „ t\ i-t • • 7 •■' • r ? ■ / .\- 4 i- 

&£iion fur le cafe gi"^^'^"* «^c. De Athvinus inclyti regis Edgar i cognatus lotius Angliai 
feet. 5. -^ * *• ahkrniannus^ &c. who was without quellion chief juftice of all 

Hldenr.anniju- England. Inter leges Ahiredi c^\). 34. he is called cyniuger ealJormany 
dices dicli fuiic !• regis aldertnannus Jive fenator^ fve judex. Vide cap. 3. 15. & 
ia diebus iliis. 38. et infer leges Edovardi ca. 35. 

The reft of the judges of the kings bench have their offices by 
letters patents in thefe words. Rex omnibus ad quos prcefentes liters 
fervenerint^ J'alutem* Sciatis quod co7ijiituimus diletlum et fidtlem Jo - 
hannem Dcdcridge miliiem unum jiijiiciarimian ad placita corajn nobis 
«r.raa,ll. 3. tenenda durante bcjieplacito noflro^ tefte^ ^c» ^ Thefe juftices of the 
l^ioS. kings bench are ftiltid i. Capitaiis, s. Generales. 3. Ferpetui, 

4. Majores a latere regis rffidentes :> but the chief juftice is only call- 
ed by the king capitaiis jujitciarius nojier. They are called i. Ca- 
ptales^ in refpeifl of their fupream jurifdiftlon. 2, Gejicrales, in 
refped of their generall jurifdi6tion throughout all England, &c. 
3. Perpaui^ for tiiat they ought not to be rerriOYe4 without juft 


Cap. 7. The Court of Kings Bench. fyj 

caufc. 4. Majores a latere regis refidenta^ for their hofwr and fafirty, 
that rhcy fliouUI be proiraed by the king in admmiltratton of juf- 
tice, for th.u tljey be a latere iegis. 

And where in $ E. 4. it is holden by all the jufticp^ in the L. 5E4. 137, 
exc .iquer chamber thai a man cannot bejiiftlc? by writ but by 
patent or commiflion, it is to be underftood of all the judges, 
faving the chief juftice of this court. But both the chief juftice, 
and tlie reft of the judges may be dlfcharged by writ under the 
great fcal. 

None can be a judore of this court unlefle he be a ferjeant of the 
degree of the coif, and yet in the writ of patent to them uiade, they 
are not named ferjeants. 

If a wr.L he returnable coram jufticiariis nojiris apud W<'Jlm\ it ftiall [ 7^ 3 

be returned in the comn.on placj : but if it be returnable in this 
court, it muft be coram fiobis uhkwiq-^cfuerimus in JInglin. See the 
fecond prrt of the Inltitutes, Mag. Cart. cap. 11. and the expofi- 
tion upon the fame. 

In former times fome ill difpofed clerks of this court, becaufe 
they could hiive no originall out of the chancery for debt returnable 
into this court, they would fue out an originall actio©, of trefpafle 
(a meer feigned aftion) returnable into this court, and fo proceed 
to exigent, (where in truth the caufe of a£lion is for debt) L.nd 
when the defendant appeared, &c. all the former procf ed;ngs were 
waved, and a bill filed for the defendant for debt. This is an im- W. j. ca. 29. 
juft pradice in derogation of the dignity and honour of this court, ^'**- -o ^ 6. 
and worthy of fevere punilhment accordino to the ft:.tute of W. i. 37-av3"E-3-32. 
c. 29. when it is round out: Vide 111 the chapter or tne court or one thing is pre- 
coHimon pleas in the end thereof. tended and ano* 

Now that we may here fay fomewhat to a vulgar objeftion of then done. 
the multiplication of fuits in law both in this court, and other of ^l"lt' plication 
his majelties courts at Weftm' more then hath been in the reigns peacr*' 
of E. 3. R. 2. II. 4. H. 5. H. 6. E. 4. and R. 3. It is to be ob- pienry. 
ferved, that there be lix caufes of the increafe of them, whereof two DiiVolution of 
be general, and the other four particular. Tlie generall be peace, monafte ics, &c. 
and plenty: the particular, i. The difTolution of fo many mona- c*"J^?"' 
fterics, chanteries, &cc. and the difperfing of them into fo many Atcurnicl 
leverall hands. 2. The fwarm of informers. 3. The number of 
concealers. 4. The multitude of atturnies. 

For the firft generall : in the reigns of £,3. R. 2. H. 4, H. 5. 
and part of the reigii of H. 6. in ref"pe6t of the wars in France, &c. siUnt hget Inter 
and in the refidue of the reign of H. 6. and in the reign of E. 4. arma. 
in refpect of the bloody and inteftine wars, and in almoft conti- 
nuall alarums w ithin the bowels of this kingdoms, between the 
houfes of Lancafter and York, there could not be fo many fuits in 
law, as fince this kingdome hath enjoyed peace, which is the firft Concordia pae- 
gcnerall caufe, peace is the mother of plenty, (which is the fecond v.* res creicunt 
general caufe) and plenty the nurfe of fuits.' In particular, by the " pulentialitej. 
difTolution of monafieries, chanteries, &:c. and difperfing of them, 
&c. Upon the ftatutes made concerning the fame (there being 
fuch a confluence of ecclefiaftioal poO'ellions) there arofe many 
queftions and doubts, whereupon luits were greatly increafed. 
a. Informers and relators raifed many fuits, by informations, writs, 
&c. in the kings courts at Weftni' upon pcnall ftatutcs, many 
whereof were obfolete, inco^vcnicut, aud not fit for thofe d.ivs. 


* See the pre- 
ambles of the 
ilat. of 4 H. 4. 
ca. 18. 

33 H. 6. ca, 7. 
*• Diminution of 

monaft. and 
chantedes, &c. 
35 El. ca. 3. 
21 Ja. cap, 2. 

^ 21 Jac. ca. 4. 
See the third 
part of the Ind. 
cap. aga"nft 
vexatious vela- 
tors infovraers 

<l A'ttyrnles. 
Rot. par. 2gE. I. 
th-iis e! atturnatis. 
X5 R. 2. nu. 2.S. 
4 il. 4s ca. 18. 
3*3 H. 6. ca. 7. 
See, Rot. pari. 
13 H. 4. nu. 63. 
jGol in print. 

* zi Jac. ca. 16. 

See the 3 part of 
the Inll. Clip. - 
againft Mono- 
poJifts and Pro- 

'\ Ca;. regis c. i. 
21 Jac. ca. 28. 
3^, Car. ca, 4. 

The Court of XIngs Bench. Cap. 7. 

and yet remained as fnares ujion the fubjeft, fo as the {\Ah]tCt 
might jullly fay with Tacitus, Prius vitns laborav'imus^ nunc leglhus^ 
3. Coiiceaiors, helluones^ that endeavoured to fwallow up caihe- 
drall churches and the ecciefiafticall polTeffions of church-nien, 
and the livings of many others of the kings fubjeds. Laftly, the 
multitude of * atturnies, more then is hmked by law-, is a' great 
caufe of increafe of fuits. 

* But now on the other fide,, to fliew what great hope there is, 
that fuits in law lliall decreafe, for that in eftc6l all the particular 
caufes of the increafe of them are taken away, which we have 
tJiought good to remember. 

^ For the firft, the ftatute of 35 Eliz. cap. 3. hath remedied part, 
but the ftatute 0121 Jac. ca. 2. hath given a plenary falve for the 
-whole milchief, whereof you may read at large in the third part of 
the Inftitutes, cap. 87. againft concealors, turbidum hominum genus. 
*^ For the fecond, by the ftatute of 21 Jac. cap. 4. Informations, 
&c. upon penall ftatutes are to be heard and- determined in their 
proper counties, and not in the courts at Wtftminller, whereby the 
vexatious fwarm of informers, who aie beft trufted where they are 
leaft known, are vaniftied and turned again to their former occu- 
pations. ^ Concerning atturnies,^ the number are fet down, and 
that they ought to be learned and vertuous, and as 1 underliand, 
the judges at this time have this matter in confideration. But be- 
fides thefe, there are fome other ftatutes made for avoiding and de- 
creafing of vexatious fuits. As an ^ act in 21 Jac. regis, cap. 16. 
far limitation of aftions and avoiding fuits in law, a good and be- 
neficiall law. Another ad at the fame parliament, cap. 13. for th^ 
further reformation of jeofafis, * a good law for ending of fuits. 
Another at the fame parliament, cap. 8. to prevent and punifli 
ahufes in procuring of proeefle oi fo-perfedtas of the peace and good 
behaviour, out of his majefties courts at Wellminfter, &c. whereby 
infinite vexations, troubles, and charges of the fubjeas are pre- 
vented. Another at the fame parliament, ca. 23. for avoiding of 
vexatious delays in caufes by removing of actions and fuits out of 
inferiour courrs, wherein the former alxife was vexatious, griev- 
ous, and cliargeable to the fubje(5l. A branch of an a6t at the 
fame parliament, cap. ^6. for pleading of tender of amends in an, 
action of trefpalle, quare dauf, fregit^ for a trefpafie b.y negligence, 
or involuntary, wherein the defendant ma^eth no title, &c. an ex- 
cellent and necelTary law for avoiding of trifling and vexatious 
fuits, efpecially in champion countries. An ad at the fame par- 
liam.enL, cap. 2. againft monopolies and new projects, &c. a great 
quiet for the time to come. Anno 3 Carol'i Regis, nunc, cap. i. 
The petition of right concerning the rights and ftberties of all the 
fubje6ls of this realm for their' repofe and quiet. Laftly, the re.r 
peal of fo many obfolete penaU ftatutes is a great mean of dimi- 
nution of fuits. 

For the abovefaid general! caufes, viz. peace and plenty, long 
may they happily by the goodnefTe of God continue without abufe 
within this realm. 

The kings bench hath authority for great mifprilions and of- 
fences, to adjudge and infli(?t corporall luniftiment, as pillory, pa- 
pers, and the like : whereof you may read m.any preftdents in the. 
third part of the Iafti>utes, p'ag. 219., ^so. 

Q A Fj 

Cap, 8. The Court ot Chancery. 


CAP. viir. 

The Court of Chancery. 

CERTAIN it is, that both the Brlttiflj and Saxon km^s had 
their chancelors and court of chancery, the only court out 
of which originall writs doe ifTue : as taking fome few ercam- 
ples before the con ni ell. 

Edward the ConfeiTor had Rcinbald his chancelor. This Ed- 
ward gri'nred many mannors, lands, &c, and franchifes to the abbot 
of Wcllininfler, and endeth his chirter thus. Ad ulthnwn^ carinyn 
ifiam Jigillari jufjiy et ipfe mami vica prop* in Jl^wn cruets iniprefji^ et 
idonem tejlcs anmtart pr.eceti : and among^l: thofe witnefTes this you 
fliail finde Sivardm mtmius ad vicem Re'mbaldi rfC^ie di^fiiiatis can* 
cfllnrii hanc cartam fcripji et fubjcripji. He had alio Lefrick to his 

King Etheldred alfo had a wofthy name, and a worthy man to 
his chancelor. Rex Ethddredus ftAtuil atque conceffit quitenus eccU- 
Jiam de Elyc ex tunc et fcmper in regis ■* curia cav.cellarice ageret digni- 
iatem^ ^c. This king began his reign, anno domini 978, which al- 
beit it was void in law to grant the ch?ncelor hip of England in 
fucceffion, yet it proveth that then there was a court of chancery. 

King Edgar had Adulph : king Edrcd liad Timrkettle : king 
Edmond the fame: king Athetftane Wolfme their chancelors, &c. 

For further proof that there was a court of clmncery before all 
thefe kings time, out of which writs remediall ifir.^ed, as they doe 
to this day : hear what the Mirror faith, Le primer confJtutions or.- 
Jcnus per Us viels rcyr^ ^c. ordein fuit qvc chefcun e\t del clnncfyy le 
my brief remedial a Jon pleint fans difficultie. Hereby it appearcth 
that in the reign of king Alfred there was a court of chancery out 
of which writs remedial 1 ifTued, wh'ch was not then inftituted, but 
affirmed to be a court then in ej[; and enafted that out of that 
court writs remediall fhould be granted w'tliout diflicultv, which 
law continueth to this day. And thus much tcucl]ing the court of 
chancery before the conquefl : and therefore * Polydor Virgiil, 
who artirmeth this court to come in with the Conqueror, peyperam. 

In a charter to the abbot of W-flminfter by Willnm the Con- 
queror, and amongft the witnelTes ir is written thus, Ego M/^urititn 
regis cancellarius favendo iegi, et figillavi. Arfaftn> bidioi) of N'ortli- 
elmham in Nortf, who tranflated his fee to Thetiord, was alfo 
chancellor to the Conqneror. 

Cancellarii Angli.<e (."'rnita! eft^ ut fectindus a rege in regno haheatur^ 
ut altra tarte friUi rcgii^ cpicd et ad ejus pert i net cufodiarn^ propria fz- 
nct mnndata^ dfc. 

Omnia brevia de pace^ ^c. irrotulari dehcvt in rotuh cancelU^ 

T*l'ta faith. Eft inter cetera quoddam officivm quod d citur eincfUa- 
ria^ quod uno provide et dfcreto^ ut epfcopo vcl cleric j^ iv.agn^ diznltatis 
debet CQmmitti fimul cum cura magni figilli regni^ cujus fubjlituti funt 


The anflfalfy cf 
this court. 
26 L. 3. afr.p.24, 
and thv preface 
to the rl>ir<l book 
of Reports. 
Hiftory ofEly, 
Hugo Petrobur* 
genJis, Leland. 
ForteCc. <;ap. 17. 

In the fecona 
book cf the Hif- 
tory of Ely, 
written in ths 
reign of king 
Stephen Icon 
-after the cou- 

* Curia Canc\ 

Mirror ca. j. 
§. 3. & vide 
ca. 5. §. 
p:<r ie mnhnentx 
di pa-f^cn le ro^ 
in le chancery <<« 
ttmp% le rcy A- 
frtd. JCi^i: Ai- 
fred began to 
iciijn anno dom, 
o"2, and was 
father to king 
Edward fcnior, 
father of the faJi 
* Error Polydari. 

FItx. Sttrphcn. 
rrmporc H. z. in 

-• end ot Stow. 

rvcy of Land. \x. 
ca. I. & 5. Jic. 


The Court of Chancery. Cap. 8^ 

W.2. 13 E. I. 
c. I. 13 E. I. 

ca. 23, 24. 


1 part Inftit. 
feft. 101. Eplft. 

r.b. 9. 

Vid. poftea 
ca. lo. of the 
court of com- 
mon pleas. 

Ubl non eft fcl- 
entia, non eft 
17 E. 3. fo. II. 
14. 23. 37. 

Kot. 22. nu. 15. 

Hot. par. 5 R. 2. 
fiu. 20. 

cancellar'' mines in Anglia^ Hihernm^ IVallin^ et Scot'' omnefqiie Ji^'t^la 
regis cujiodientes ubique prater cufiode7n Jigiili privati. Qui ajfocientur 
clerici honejii, circumfpeBi do77iisio regi jurati, qui in legibus et con- 
fiietudinibus Anglicanis notitiam habeant pleniorem^ quorum officium Jit 
fuppUcat'.ones et querelas conquer entiuni audire et examinare^ et eis fuper 
qualitatibus injuriaruni of,e7ifarum debitum remedium exhibere per hrevia 

Breve de forma donationis in tevotere fatis ejl in ufu in cancellaria. 

In cancellaria et in regifiru cancellarice. 

For the antiquity and authority of this book of the regifter of the 
chancery, fee the firft part of the Inftitutes, verb, per le Regijier^ 
and in the epiftle to the ninth book of my Gommentaries. 

But to proceed (omitting many others) Robert Parning took the 
ftate and degree of a ferjeant at law in 3 E. 3. and became the 
kings ferjeant, and for his profound and excellent knowledge of the 
laws, in Trin. term 14 E. 3. was 24. Julii by writ created chief 
juftice of England: in which office he remained untill the 15 of 
December follo'.ving, on which day he was made lord treafurer o^ 
England. In that office he remained untill the 15 year of the reign 
of the fame king, and then was conftituted lord chancelour. This 
man knowing that he that knew not the common law, could never 
well judge in equity (which is a jufl: correction of law in fome 
cafes) did ufually fit in the court of common pleas, (which court 
is the lock and key of the common law) and heard matters in law 
there debated, and many times would argue himfelf, as in the re- 
port of 17 E. 3. it appears. 

In the 30 year of E. 3. Sir Robert Thorpe chiefe juftice of the 
common pleas (not Sir William Thorpe chiefe juftice of England^ 
convicted of fordid bribery) a man of Angular judgement in th6 
laws of this realm, was conftituted lord chancelour of England. 
And in the parliament anm 45 E. 3. a grievous complaint was 
made by the lords and commons, that the realme had bin of long 
time governed by men of the church in difherifon of the crown^ 
and deiired that lay. men only might be principall officers, &c. 

After the deceale of Sir Robert Thorpe ^ Julii anno 46 E. 3. Sir 
John Knivet knight, chief juftice of England, a man famous in his 
profeffion, was made lord chancellor of England, who deceafed ijt 
anno 50 E. 3. &c. 

In perufing the rolls of parliament in the times of thefe lord 
chancelours, we finde no complaint at all of any proceeding before 
them. But foone after, when a chancelour was no profeffbr of the 
law, we finde a grievous complaint by the whole body of the 
realm, and a petition that the moft wife and able men within the 
realm might be chofen chancelours, and that he feek to redreffe the 
enormities of the chancery. But leaving many other records to 
their proper places hereafter, we will conclude this point concern- 
ing the antiquity and jurifdidion of this court with the opinion of 
all the judges of the realm in 9 E. 4. in a fuit in the court of ex- 
chequer againft the clerk of the hamper in the chancery upon his 
account in the exchequer, where it was holden by all the juftices in 
the exchequer chamber, that all the courts of the king have been 
time out of memory, fo as a man cannot know which of them is 
the ancienteft court. And juftice Young the plaintife demanded 
pf the 'uftices, what if the chancelour command me upon a payne^ 

j Cap. 8. The Court oi Ciianccry. 7 j 

i (hail not fuc him ? To whom Billing the chief juftice an- 
i, you arc not bound to obey it, bcciufe that commandment 
b . V unit iiw : but fciiig inal toucheth upon ihe juhfdidion of the 
court, let us in tlw next place handle that point. 

The JurifdiL^kn of ihe Court, 

In the chancery are two courts, one ordinary, coram Jomhio re^e * g e i * 

in can:eHAria^ * wherein the lord chancelour or lord keeper of t!ie g e. 4. 15I 

j:,reat feale proceeds according to the right lint* of the laws and fla- 14 K- 4. ?• 

tiKrs of the realn, Jtcundum legem et-c nfuetud'mtm ylu^r'O'. ^ An- ^^*"- P"^**** 

other extraordinary accordincr to the rule of cquitv, /ecaff^w aquum p,*°' ^°*^5- ^ 
/ K A a i\ c .\ c ^ 1 . »^ ,7 f J. com. fo, 7a, 

ci bcnum. And nrit ot the former court. ' 

* He hath jft)\^er *o hold plea oifche fac' for repeal of the kings ' Rot. par. 8 h. 4, 
letters patents, of petitions, mo^/lrans de droits, traverfes of offices, ""> 1^2. 2R.3.1. 
partitions in chancery, of fcire fac* upon recognifances in this 
court, x^rits of^nudit^ quere fa s.ndjare/ac^ in the nature of an audita 
^creJa to avoid executions in this court ; ^ dowments in chancery, p^^'o *?^* 
the writ de dote aJ/Jonanda upon offices found, execution upon the stanf.prxt cl 
llatute ftnple, or recognifance in nature of a rtatute ftaple upon the Rot. p=.r. 1 8 E. 3. 
a£t of 23 H. 8. but the execution upon a flatute merchant is retorn- nu. 41, 42, 
able either into the kings bench, or into the common place, and 
all perfonall actions by or againft any ofncer or minifter of this f ^O ] 

court in refpeft of their lervice or attendance there. * In thefc if * '3^' -• ^-^""^ 
the parties defcend to ifliie, this court cannot try it by jury, but the ^^^^\ '"^* ^^' 
lord chancelour or lord keeper delivereth the record by his proper 
hands into the kings bench to be tried there ; becaufe for that pur- 
pofe both courts are accounted ** but one, and after triall had to be lo'E.s. 61, 
remanded into the chancery, and there judgement to be given. ^4- ^' 3^ o^. 73, 
But if the»e be a demurrer in law, it (liall be argued and adjudged 
in this court. Nota, the legall proceedings of this court be not 
inrolled in rolls, but remaine in Jilaciis being filed up in the office 
of the pety-bag. * Upon a judgement given in this court a writ of ^ ^.^^- 3-25.17. 
error doth He retornable into the king's bench: ** the Itile of the \my:^' ^y 
court of the kings bench is coram re^c (as hath been faid) and the pj, com. 79-. L, 
ftile of this court of chancery is coram domino rege in cancell-iria^ ct a j^ ^^ 
addiiio piobat mimrifntem. And in this court the lord chancciour or H. 6.rot. 5. int, 
the lord keeper is the fole judge ; and in the kings bench there are pJa:it» regis, 
four judges at the leaft. 

This court is qfficina jitftitiie, out of which all originall writs and ojidna juftitUtm 
all commiflions which pafTe under the great feal go fi^rtli, which 
great feal is clavis regni^ and for thofe ends this court is ever open. Flcta Hb. a. 

Of this court Flcta ubi fupra^ faith, Dtcuntur bicvia cum fint for- "• '*• Brad, 
mat a ad fimilitudinem regulie juris ^ qu^e brevittr^ et paucis veibis inten- g .^' °'^^o' 
tionerhproferentis exponunt^Jicut regula juris, rem qua eft breviter enar- p|,ja jib. 5, 
rat : non tamcn ita debet ej^'e bre. quin rat'on'^m ct vim intentionis ccnti- ca. 35. U 3^. 
Tieat, Etfunt qua dam brevia formatafubfuis caji^us^ et qua dam de cur- 
fu r^u^r cmfilio totius rcgni funt ap^rohatn. qua quidem mutari non poterunt 
^hfque eorundtm contraria voluntate. Sunt et hr^-^Ja ex eis fequcntia qua 
tircuntvr judicialia, et fapius variantur Jccundum placitcrum 
proponent* et refpondent\ petentis et exciticnfis el Jccundum vaiietatem 
refponjioniun. Sunt et qutedam qu/r dicuntur ma^rjiinlia et ftpius va- 
riatUur/ccunJum diverjitatem cafuwn, fa^oium. ct guerslarunif et quorum 


Eo The Court of Chancery. Cap. 8. 

qu^Jam Junt pefjonalia^ et qua dam realia^ et qua dam mixtd^ fecundum 
quodfunt a6tknes di'verf^e vel 'varire, quia tot erunt formuli£ brevium^ 
quodfunt genera adionum^ quia non potefi quisjine brevi dgere^ pra^cipue 
de libero tenemento fuo, quia non tenetur quis refpondere Jine brevi, niji 
gratis voluerit, et cum hocfecerit quis, ex hoc ei non injuviabitur : volenti 
enim etfcienti non fit injuria, De eadem autetn re, plures alicul conipe- 
fere poterunt adiones, or dine aute^n, ut convenit, obfervato. Breve qui' 
de?n regis in fe nullam debet continere falfitatem, nee aliquem errorem * 
apparre debet vel in prima fui figura non vitiofum, maxime fi fuerit pa- 
tens five apertuni, quia originalia qu^edafn funt claufa, et qu<xdam aper- 
ta, Et five aperta, five daufa, apparere non dcbent abrafa, nee aboli' 
ia : et fi in'Oeniatur abraf.o, tunc refert quo loco, a quo, et quando. Quo 
loco? videlket utrunt in narraiionefa^li vel juris. Si autem in narra- 
tionefa^i, cadet coram jufiic' quafi fiifpc^um, F^^a enim et nomind 
mutari non dibe?Jt, fed jura ubiqiic fcribi pojfunt . A quo? utrum vidc" 
licet per clericum cancellar^ cui autoritas data fuerit, vel aufu teiuerariQ 
per alium, fictit clericwnjufiic^^ vel vie' ad procurationem alicujus partis .• 
quo cafu omnes agentes et confetitientcs tanqua?n falfarii puniantur. Jtem 
quando f vidJicet utrum hoc fiat antequam hre. in curia refufcitatum et 
public at um, vel pofi. Si autem pofi, erit breve fiifpe^um et cadet, fi a 
tenente fuerit hoc calumpniatum. Fiunt autem brcvia judicialia in cancel^ 
la' ia ex recognitionihus et contra^ibus habitis et in rotulis cancellaria ir- 
rotulatis et ex recordo cancel! ario et clericis fibi affociatis per hac con/iitu~ 
tionem concefjo. Quia de hiis qut^ recordata funt coram cancellar' domini 
regis, et ejus jufiic' qui recordum habent et in rotulis eorum irrotulaniur, 
Tien debet fieri proceffiis placiti per fmnmonitionem, vel attachiament\ ef- 
fonia, vifus ire. et rdiasfolempnitates cur' ficut fieri confuevit ex contrafli- 
buSi et conventionibus faBis extra curiam. Obfervandum efi de catero 
quod ea quee inveniuntur irrotulata coram hiis qui reccrdion habent vel in 
finibus content a, cumfint contra^ us five conventiones vel ohligationes five 
fervicia aut confuetudines recognita five alia qttacunq; irrotulata quib* 
cur' regis fine juris et ct>nfiituttonis offenfa author it atem prafiare potefi' 
L ol J talem de cetera habeat vigor em, quod non fit neceffe de hiis placitare in 

poflerum, fed cum venerit querens ad curiam domini regis, fi recens fit 
cognitio, vel finis, viz infra annum per bre. levatus, ftatim habeat bre, 
de executione illius recognitionis fahce : et fi forte a majore tempore 
tranfaHo faSl a fuerit ilia recognitio, vel finis levatus : pracipiatur vie* 
quod fcirefac' parti de qua fit queremonia, quod fit ad cert urn diem, ofienf 
fi qind fciat dicere quafe hujus irrotulata vel in fine contenta executionem 
habere non debeant. Et fi ad diem venerit, et nihil fciat dicere quare 
executio fieri non debeat, pra-cipiatur vie' quod rejn irrotulatam vel in find 
content am exequi fac'. Eodem modo mandetur ordinario in fuo cafUy 
cbfervato nihilom'mus quod infer ius dicetur in fiatuio de medio qui per JU' 
dicium aut recognitionem eft obligatus. Ex hac quiJem confiitutione ori' 
Untur bria. judicialia in ca^icellaria ficut coram ipfisjufiic. Tpfi autem 
eollaterales etfocii cancellarii effc dicuniur prceceptores, eo quod bria. cau' 
fif examinatis remedialia fieri pra:cipiunt, et hoc quoque cum fine denar"* 
ad opus domini regis, et quoque fine fine, eo quod omnia bria. non funt 
omni tempore aquipollentia. De brevibus autem coram juHic* ad priijias 
affifas cum in partes illas venerint, fines caper e non confueverunf, eo quod 
ad tempus itineris jufiic' ligat confiitutio Magftce Car tee qu<^ talis efl ; 
NulU jufiitiam negabimus, vendcmus, vel differemus : fed non inhibetut 
quin fines capiantur pro brevibus poffe[ponum, et aBionum perfonalium, pr§ 
cekriore jufiltia habcnda ; qui guidem pro ytalitatibus et quantitatibus 


Cap. 8. The Court of Chancery. ftl 

fwti<mrm ctmctjjlt in eifdcm hrevibut imhrtviahuntur^ et in rotulis cancel-* 
iariit irrotulm^ur, Qui quiJrm rotuli Jingulis annis aj fcaccar* lihcra' 
hwiUury et Jittn hujus cxtrahuntur ct fcr fummon* Jem car it kvcntur, 
Clmufttla vtrojin'ts talis (//', Et cape fecuritatcni u prtcfato tali dc 40 
rolid. ad ojHJs noftruni pro iioc brcvi. Verba autcm cxtra^^ de /caeca- 
riofunt ft^ec, Dc A. de B. pro brevi habciid' di.n marc' vel ampiiut 
pfout jinis fa^usfunit. Conccduntur aliqiinndo conquerentib* cb/nvorcm 
f)auf>rrtaus quod ubi pricfumi potcji Jlc quod plegios invrnirc nonpojjunt de 
prrjlqucfui^ clamor em fuum quod fccuritatem pritjlcnt vie* per jidci inter- 
( :i:iinirH Juanty mn tamcn in a^lordbus perfonalibus hoc concedcndum eji, 
Hnhet et rex cUricoi in officio illo cxj.ertos et legates qui formulas bre^ium. 
c gnofcunt^ qt/i approbanda admit tunt et dcfc^iva omnino rcpellunt^ qu:b* 
omnia bria. priu/quam ad Jj^illum prover.iunt cum deliberatione dijiiude 
rt aperte in rationc^ didione^ litera ct Jyllaba examinare injundum ejl, 
lEt fciendum quod nullum brc. niji per mantis eorundem ad Jigillum debet 
tid.fdtti. Habet etiam fex clericos fuos pranotarios in officio illo ^ qui cunt 
clcricis mcrmratis familiares^ Eifc. effc confueverunt et pnecipue ad -vidum 
et xrjtitum qui ad bria. fcrihenda fccundwn divcrjitatcs qucrelarum funt 
intiiulati. Et qui omnes pro vi^u ct 'vcjlitu de proficuo JigilU in cujuf- 
csinquc ufus perveuerit debent honejle invcniri. Sunt etiam n'diilominus 
clerici Juzvnes et pedites quibus de gratia cancellar'' conceffum eft jro ex~ 
peditione populi bria. facere curforiay dum tamenfub adiccatione cleiico^ 
mm fupe^iorum fuerint qui eorumfafla in eorum receperint pericula. Et 
in quclibet bri. debet fcribent'is nomen inbrcviari qui luarrantizare pote- 
tint in peccalores fi ncceffe fuerit. Et ne prcefati clerici fuperflua petant 
fiipendia pro fcriptura fua^ confitutum ejl quod tarn clerici jufic ' quam 
cancellar^ defolj denario pro fcriptura nnius brevis fe teneant contentos. 

And this court is the rather alwaycs open, for that if a man be 
wrongfully imprifoned in the vacation, the lord chancelour may 
.s^rant a habeas corpus and do him juflice according to law, where 
neither the kings bench nor common pleas can grant that writ but 
in the term time ; but this court may grant it either in term time or 
vacation. So likewife this court may grant prohibitions at any 
timeeitlier in terme or vacation ; which writs of prohibition are not 
retornable : but if they be not obeyed, then may this court grant 
an attachment upon the prohibition retornable either in the kings 
bench or common place. 

• The author of that book fpeaking of the court of chancerv, * New Talcs, ot 
and of the jurifdic^ion it then had, faith, Curia cancellar i,e regic^ efl "^^ ^'<^rrm~ 

_ • /• • 7 •; • • 7-7 f r I 1 • • ''O""* written 

cuua orainaria pro brevibus miginalibus emanandts, Jed r.on placitis »bout the beijm- 

«mmunibus tencndis. ning of E. 3. 

Divers ads of parliament give authority to the lord chancelour to ^7 E- 3- cap. 13. 

hcareand * determine divers offences and caufes in the court of » R- 3* ^o- 3- 

chancery, which is ever intended in this court proceeding in La- ^\^^'^^^\ jgg^ 

Viu^fecundum legem et confuitadinem j^nglia', and the defendant flinll not a refolvp. 
be fworn to his anfwer, nor examined upon interrogatories, and upon ♦[ 82 ] 
ilRie joyned it fliall be tried in the king's bench, ut in Jimlhbus ca- 
/iiusfolet. But our purpofe is not to enumerate all thefe ftatutes, 
for our aim is principally at the generall jurifdidion of this court. 

The officers and minifters of this court of common law doe O^ittn and «;- 

principally attend and doc their fervice to the great feal, as the "^fij^^ 'f '^'' 

* twelve mafters of the chancery, whereof the maSer of the rols is s« the 2 pan of 

the Inrt. W. X, 
c V t^verh. C/erki 4c CanceUaria. • In tlic parliament rol of 5 R. ». nu. at. they are Cilie* 
chJef clerks. ^ ^ ' * 

IV. Inst. H tJie 

82 The Court of Cliancery. Cap. 8* 

the chief, who by their original! inftitution, as it is proved be- 
fore, fhoiild be expert in the common law, to lee the forming and 
framing of originall writs according to law, which are not of courfe ; 
whereupon fuch are called in our ancient authors bre^vla mngijlralia. 
The clerk of the crown, the clerk of the hamper, the fealer, the 
chafe wax, the controller of the chancery, twenty four curfitors 
for making writs of courfe or formed writs according to the regiiler 
of the chancery, the clerk of the prefentations, the clerk of the 
facukies, the clerk examiner of letters patents, the clerks of the pet- 
tibag, and the fix atturnies. The proceHe in this court is under 
the great feal according to the courfe of the common law. 

Having fpoken of the court of ordinary jurifdiftion, it followeth 
according to our former divifion, that we fpeak of the extraor- 
dinary proceeding according to the rule of tqvuty ^ fecundum ^quum 
€1 bcnum^ wherein we will purfue our former order. 

Albeit our ancient authors, the Mirror, Glanvill, Bra^lon, Brit- 
ton and Fleta doe treat oi the former court in chancery, and of 
originall writs and commifiions ilfuing out of the fame, yet none 
of them do once mention this court of equity. V/e have alfo 
confidered what cafes in this court of equity have been reported in 
our books, and we find none before the reign of H. 6. and in that 
kings time, and afterwards plentifully, we then turned owr eies to 
a6Vs of parliaments and parliament rols. 

* Some have thought that the ftatute of 36 E. 3. gave the chan- 
celor his firft authority for his proceeding in courfe of equity, by 
which it is ena6led, That if any man think himfelf grieved con- 
trary to any of the articles above written, or others contained in 
divers ftatutes, will come to the chancery or any for him, and 
thereof make his complaint, he fliall prefently have there remedy by- 
force of the faid articles and ftatutcs, without elfewhere purfuing to 
have remedy. But certainly this aft giveth the chancelor no power* 
to proceed in courfe of equity, but that he grant to the party 
grieved originall writs which are called remediall grounded upon 
any ftatute for his relief, and there is no ftatute that gives the 
party grieved remedy in equity. Laftiy, the laft words of the aft, 
without elfewhere purfuing to have remedy, doe manifeft that the 
meaning of the makers of the aft is to dircft the party to be re- 
lieved by the common law, by aftions upon thefe ftatutes, and not 

In the parliament holden 13 R. 2. the conimons petitioned to 
the king, That neither the chancellor nor other counfellor doe 
make any order againft the common law, nor that any judgment 
be given without due procelTe of law. W hereunto the kings an- 
fwer was, The ufages heretofore fhall {land, fo as the kings royalty 
be faved. In the fame parliament another petition was, That no 
perfon fliould appear upon a writ De quihufdarn ccrtis de caujis^ be- 
fore the chancelor or any other of the councell, where recovery is 
therefore given by the common law : whereunto the kings anfwer 
is, The king willeth as his progenitors have done, faving his re- 
i^R.ft. ca. 6. jj^ tfie parliament holden in 17 R. 2. it is enafted at petition 
of the commons. That forafmuch as people was compelled to come 
before the kings councell, or in chancery, by writs grounded upon 
untrue fuggeftions, that the chancelor' for the time being prefently 


Of the tnt'iqmty 
ef this court of 
equity . 

Henry Beaufort 
fon of John of 
Gaunt bifhopof 
Winch, cardi- 
nal of St. Eufe- 
bius, lord chari 
celcr in the be- 
ginning of the 
reign of H 6. 
and in that 
kings r^ign John 
Kemp cardinaU 
of S. Rufeline 
archb fhop of 
York, lord 
See Rot, pari. 
a8 H. 6. nu. 10. 
&3«; H. 6. fo. 3. 
» 36 E. 3. cap. 9. 

Rot. par. 13 
K. 2. nu, 30. 

tUap. 8. The Court of Chancery. ♦Sj 

after that fuch fuggcftions be duly found and proved untrue, (hall 

have power to ordain and award dammages according to his dif- 

cretion ♦ to him which is Co travelled unduly as \s aforelaid. This 

*St cxtendeth to the chancelor proceeding in courfe of equity, 

and extendeth not to a demurrer in law upon a bill, but upon 

hearing of the caufe upon thefe words in the afi [duly found and 7 £• 4- «>• »4» 

])rovcd] and this is the tirft parHament that I find touching this 

^natter. And in the roll of the fame parliament, I finde the firft: 

tlecree in chancery that ever I obferved, the efFetft whereof was: p^^ ^ 

John de Windfor complaineth and rcquircth to be reftored to the ^° io! wllliam 

manners of Rampton, Cottenhani and Wcftvvick with their ap- Courtrry (on of 

purtcnances in the county of Cambridge, the which were adjudged Hugh earl of 

to him bvtlie kings award, then in the pofleflion of Sir John Lifley, Devon, was then 

and now wiihholden by Sir Richard le Scrope, who by champerty ^'jj'',^°^,h^a*°'* 

bought the fame : the caufe was this. Upon a petition of Wind- ^^^^^ ^^cn this 

for againll Lifley they both compromltted the matter to the kings decree was made. 

order, the king committed the fame to the councell, they after di- 

gefting of the fame made a decree for Wiudfor under the privy 

leal, tliey fend warrant to the chancelor to confirm the fame, which 

Mas done under the great feal by a fpecial injunftion to Lifley, 

and to write to the flicrif to execute the fame. After this, Litley 

ty petition to the king requireth that the fame may be determined 

at the common law, notwithflanding any former matter : the king 

accordingly by privy feal giveth warrant to the chancelor to make 

a fiipeifedea^^ the which was done by privy feal, after which Sir 

Kichnrd Lefcrope bought the fame. Upon the ripping of the 

whole inatter, this fale was thought no champerty, w/iereufK)n it Champerty. 

was adjivdged, that the faid Windfor fliould take nothing by his 

laid fuit, but to ftand to the common law, and that the faid Sir 

Richard fliouId goe without day. 

The commons petitioned that no writs or privy feals be fued R'^t par.z H.4, 
out of the chancery, exchequer or other places to any man to ap- """ ^^• 
pear at a day upon a pain, either before the king and his councelj, 
or in any other place, contrary to the ordinary courfe of the com- 
rnon law ; whereunto the king anfwcred : that fuch writs fliould 
not be granted without neceffity. 

Amongfl: the petitions of the commons you fliall find this, that ^ot- P*""- 3 ^- 5* 

all writs oifuhtxena and cnth de caufis, going out of the chancerv and "'i* ^ . - - 
1 I t 11 I 1 ° " J r J Edmond Staf- 

the exchequer may be enrolled, and not granted or matters deter- f^rj ar(.j,j, ^f 

rninable at the common law, on pain that the plaintif doe pay by York, W3s lord 

way of debt to the defendant forty pound : w hereunto is anfwered, chancellor at 

the king will be advifed. Jj^f y,^;^- 

It is enafted, to endure until! the next parliament, that the ex- n^. 2/*^ ^ ^* 

ception (how that the party hath fufficient remedy at the com- R or. I'Jr. i H. 6, 

moM law) (hall difcharge any matter in chancery. At the n xt nw. 41. 
parliament you (ball find a petition in thefe words. No man to 
be (jailed by pri\7 feal or fuhpcena to anfwer any matters bui fuch 

as have no remedy by the common law, and that to appear fo by Nerergood pctf- 

the teftimony of two juftices of either bench, and by indenture t'on in parlja- 

betweea them and the plaintif, which plaintif Ihall always appear ^^^ '*p|'» |»« 

in proper j^erfon, and find furety by recognisance to profccute tak-effedL*' 

with effie£l the matters of the bill only, and to anfwer dammagcs Vid. fup. pa. 3a, 

if the fame fall out ag^i^^ the plaintif,' 1% H. 6. ca. 4. 

H 2 - But 


30 H. 6. fo. 26. 
4E.4.8. 14E.4. 
I. 16 E. 4. 9. b. 
1% E. 4. 13. 

6 E. 4. 10. b. 

fortefc. ca. 34. 
Rot. par. 14 E. 4. 
ru. 5. William. 
Shetfords cafe 
Doft. & Stud. 
cap. 18. 24. 50. 

31 H. 6. ca. 2. 


The Court of Chancery. Gap. 8 , 

But in tf •/«o 1 5 H. 6. for a perpetuall law, and for the triie jiirif- 
di(5lion of this court it is enaAed in thefe words. 

Iie?ny forafmuch as divers perfons have before this time 
been greatly grieved by writs oi [uhpoena^ purchafed for mat- 
ters determinable by the common law of his land, to the great 
dammage of fuch perfons fo vexed, in fubvcrfion, and Impe- 
diment of the common law aforefaid ; our foveraign lord the 
king will, that the ftatutes thereof made (liall be kept after the 
form and efFe6t of the fame. And that no v^rit oi juhpcena 
be granted from henceforth till furety be found to fatisfie the 
party fo grieved and vexed for his dammages and expences, if 
fo be that the matter may not be made good, which is con- 
tained in the bill. In amio 31 H. 6. cap. 2. there is a provifo 
in thefe words. Provided that no matter determinable by the 
law of this realm fhall be by the faid ad determined in other 
form then after the courfe of the fame law in the kings courts 
bavins: determination of the fame law. 

Trln. 2 Jac. 

* Pafcb. 29 El. 
in Scaccario 
Woods cafe. 
Vide 7 El. Dicr 
2.38. Seignior 
Shandots cafe. 

JtcafonSf I. a 
ynjjori cd mhiui. 
Rot par. 2R. z. 
yju. 18. 

Rot. par. 13R.S. 
«u. 10. 

a Regitla, 

37 H 6. 14. 
a; H. 8. 18. 

Trln. 'i, Jac, 
resi.m fcaccartO. 
Sir Thomas 

Tr. 2 Jac. rcgis^ upon fuit made to the king for ere<5ling of a 
new office for taking of furety according to the faid aft of 15 H. 
6. cap. 4. the king referred the caufe to Popham chief jiiftice, who 
npon conference with the judges in Fleetftreet, refolved that the 
furety was by force of that a6l to be by obligation, and to be 
made by the party grieved himfelf, becanfe it concerneth his dam- 
mages and colls, and the court was to fet down the form and fum 
of the obligation, and in the end the fuit prevailed not. 

* Pafch. 29 Eliz. infcaccarlo^ in Woods cafe adjudged upon the 
flatutc of 2 E. 6. cap. 13. for the like reafon that the forfeiture 
for non-payment of tithes (liall goe to the party grieved. 

1. Rot. par. 2 R. 2. nu. 18. the high court of parliament re- 
lieveth but iiich as cannot have remedy but in parliament. 

The parliament for matters determinable at the common law 
doth remit the parties thereunto. 

2. "Nunquam decuvritur ad exiraordinarium, fed uhi deficit ordina^ 

3. Whereas matters of faft by the common law are triable by 
a jury of twelve men, this court fliouid draw the matter ad al'tud 
examen^ that is, to judge upon depofition of witnelfe?, which 
fliouid be but evidence to a jury in actions real, perfonail, or 

This court of equity proceeding by Englifli bill is no court of 
record, and therefore it can bind but the j)erfon only, and neither 
the llate of the defendants lands, nor property of his goods or 

Egerton lord chancelour impofed a fine upon Sir Tho. The- 
milthorp knight, for not performing his decree m chancery con- 
cerning lands of inheritance, and eftreated the fame into the ex- 
chequer: and upon proceite the party appearing pleaded that 
the fine was impofed by the lord chancelour for not perform- 
ance of his decree, and that he had no power to aflelfe the fame. 
The atturny generall confefled the plea to be true, et petit advU 
/amentum curiae, concerning the power of the chancelor in thig 


Cap. 8. The Court of Chancery, 





cafe, and upon debate of the queftion in court, and good advife- 
nicnl taken, it was adjudged that the lord cliancelor had t\o 
power to .iflcill- :inv fiicli hne, for then by a mean he tright bind 
the interi-rt ot the land where he Iwd no jjower, but of the pcrfon 
only, and thcreup.Mi the iaid Sir Thomas Themilihorp wa» dif« 
cnarged of tiie faid fine. 

/Attcr.vard the uid lord chancclor decreed againft Waller cer- 
tain lands, and for not perforniaace of the decree impoftd a, fine 
uj)on him, and u\Ktn procclTe out of the court of chancery ex- 
tenilcd tne lands that Waller had in Midd. &c. whereupon Waller 
broight his allile in the court of common i)lcas, where the opinion 
of tiie whole court agreed in omnibus, with the court of exche- 

The lord chancelor or the lord keeper is fole judge both in 'The Judge cftH% 
this court of equitv, and in the court concerning the common "Jf* •/ 'i*''J» 
law; but in caits of weight or dilMculty he doth alUft himfelf with 
fome of the judges of the realm, and no greater exception can 
be taken hereunto then in cafe of the lord fteward of Fngland 
be ng fole judge in triall of tiie nobility, who alfo is affifled with 
fome of the judges. 

For this court of equity the ancient rule is good. Three things 
5irc to be judged in court of conlbience : covin, accident, and 
breach of confidence. 

All covins, frauds, and deceits, for the which Is no remedy by th^ 
ordinary courfe of law. 

Accident, as when a fervant of an obligor, morgageor, &c. is 
fent to pay the mony on the day, and he is robbed, &c. remedy is 
fo be had in this court againft the forfeiture, and fo in the like. 

The third ii> breach of truft and confidence, whereof you have 
plentifuU authorities in our books. 

The cafe in the chancery between the earl of Worcefter and 
other ; hintifs, and Sir IMf)yl Finch and Eliz. his wife defendants 
was this. The queen being fcifed of the mannor of Raveilon 
and of certain lands in Stokegoldiiigton, (which the plaintif pre- 
tended to be a mannor either in right or reputation) granted by her 
letters patents the niannors of Raveilon and Stokegoldington to- 
the faid 3ir Moyl, and John Awdelye, and their heirs: but this 
was upon confidence, that thev Ihould grant the mannor of Rave- 
fton to Sir Thomas Heneage and Anne his wife, and to the heirs 
of Anne : and the mannor of Stokegoldington to Sir Thomas an^ 
Anne, and the heirs of Sir Thomas. Sir Movie and Awdelye by 
deed indented and inrolled termim Trin. 1588. 30 Eliz. in this 
court for a thouland pound bargained an! fold to Sir Thomas He- 
nage and his wife the manners of Ravedon and Stokegoldington, 
?nd the fgiie of the priory of Ravefion in the county of Buck, 
gnd all other their lands, tenements and hereditaments in Raven- 
fton, Wefton, Pidington, and Stokegoldington, in the county 
of Buck. To have and to hold the mannor of Ravefton and 
ihe fcile of the faid priory, and all the premifles in Ravenfton, 
\\'ellon, Pidington, and Stokegoldington (other then the faid 
iiiannor of Stokegoldingron) to the faid Sir Thomas and dame 
Anne, and the heirs of the faid dame Anne : and to have and to 
imid the faid mannor of Stokeg. to the faid Sir Thonws and dame 
Aiine, and tq the hein* of Sij- 'I'homas. Sir Thomas had ifTix by 

\\ 3 th« 


Mich. 42 Sc 45 
£1. inCancellar*. 

A truft cannot 
be afllgncd over. 
a2 El. Dier fo, 

369. pJ. 50. 

85 The Court of Chancery, Cap. ?•, 

the faid dame Anne the faid Elizabeth one of the defendants his, 
only child, and afterwards the faid dame Anne died : the defendant 
alleadged that Sir Thomas was difleifed of Stokegoldington, and 
the piiiintif denied it. And after Sir Thomas by deed indented 
and inroUed, bargained and fold the mannor of Stokegoldington 
to the plaintif for payment of his debts and died : and for pay- 
ment of his debt?, they exhibited their bill againft Sir Moyl, and 
the faid Eliz. his wife, for the faid mannor of Stokegoldington, 
and the lord chancelor decreed it for the plaintif. And upon a 
petition preferreu by the defendants to queen Klizabeth, ilie re- 
ferred the confideration of the whole cafe to all the judges of Eng- 
land : and after hearing of the coiinfell of both parts on feverall 
days, and conference between themfeives, thefe points for rules in 
A d'l^eifor fub- equity were refolved. Firft, that if there were any dilTeifon, that 
ic<a to no trui^. nothing palTed to the plaintif either in right or equity, for the dif- 
feifor was fubje6l to no truft, nor any Juhpccna was roaintainabiA 
againft him, not only becaufe he was in the pofi^ but becaufe the 
right of inheritance or freehold was determinable at the common 
law and not in the chancery, neither had cejli que iife (while be had 
his being) any remedy in that cafe. Secondly, it was refolved by 
all iht juftices, that admitting that Sir Thomas Heneage had a. 
truft, yet could not he affign the fame over to the plaintif, becanfe- 
it was a matter in privity between them, and was in nature of a 
chofe in atil-ion, for he had no power of the land, but only to feek 
remedy by fubpana^ and not like to ce/ii que ufe^ for thereof there. 
Ihould be p'jfejjiofratris. and he fliould be fworn on juries in refpe6t 
of the ufe, and he liad power over the land by the ftatute of i R. 3. 
cap. and if a bare truft and confidence might be affiened over 
great inconvenience might thereof follow by granting of the fame 
to great men, &c. Thirdly, when the land defcended to Elizabeth 
one f 1 the defendants, as heir to her mother, and the truft defcended to 
her irom her father, the truft was drowned and extingi ifhed. Fourths 
ly, when any ntle of freehold or other matter determinable by the 
common law come incidently in queftion in this court, the fame 
cann( t be decided in chancery, but ought to be referred to the 
triall of the common law^ where the party grieved may be relieved 
by error, attaM«t, or by adion of higher nature. And when th^ 
fuit is for evidences, the certainty whereof the plaintif furmifelh 
he knoweth not, and without them he fuppofeth that he cannot 
fue at the common law : It was refolved that if the defendant 
make no title to the land, then the court hath juft jurifdiftion to, 
proceed for the evidence ; but if he make title to the land by his 
anfvver, then the plaintif ought not to proceed, for otherwise by 
fuch a fun.. if'/, inheritances, freeholds, and matters determinable by 
[ 86 3 the common law fti l!1 be decided in chancery in this court of 

equity. An 1 thus were thefe points refolved by Sir John Pop- 
ham, Sir Edmond Aaderfon, Sir William Periam, and Walmeflye, 
Gawdye, F nner, and Kingefmill juftices, and Clark and Srvill 
barons of the excliequrr, and all this amongft other things they 
certified v.nde. their hands into die chancery, and thereupon the 
former decree was reverfed. And in debating of this cafe it was 
refolved by the two chief juftices, chief baron, and divers-other 
juftices, that if a man make a conveyance, and expreTe an ufe, the 
party himfelf or his heirs fhall not be recei ed to averre a fecrea 
^ft, other then the exprefle limitation of the ufe, unlefTe fuch 

■ truf^ 

.Mitter's aetc- 
n-,'' a-jle by the 
tommon law 
cnnmt be dccid- 
(;•-• 1., chaiicery. 

Suit for evi- 

Cap. 8. The Court of Chancery. %§ 

truft or confidence doe a; ; .or othcrwifc declared by 

lome apparent matter. /\ i . : lid, that covin, atcidtnr, 

a«d breach of confidence were within the proper jurifdidlion of 
this court. 

Thomas Throckmorton efquire exhibited a bill in this court J!"**^^^ *4* 
tgainft Sir Moyl Fincli knight, claiming a Icafe of the man- ''«^«Ac«U«r 
nors of R. and S. for many years to come, and flicw clear 
matter in ecpiity to be relieved againft a forfeiture pretended by Sir 
Moyle for breach of a condition where there was no default in 
tiic plaintif, &.C. Unto which bill the defendant pleaded this plea, 
that for the triall of the forfeiture ot which leafe, he made a leafc 
for years to one privilcdged in the exchequer, who brought an 
tJcHioiie fnrne againft the plaintif, and upon pleading a denuirrer in 
Jaw, the leflee had judgment to recover againft Thomas Throck- 
morton (now plaintif iii chancery :) whereupon Tliomas Throck- 
morton brought a writ of error in the exchequer chamber, where 
upon due proceeding the judgement was affirmed, and demanded 
judgn;ent, if after thcfe judgements given at the common law he 
ougnt to be drawn to make any further anfwer in this court of 
equity. And Egerton lord chancelor delivered his opinion in 
court, that the defendant fhould anfwer to the bill : and forafmuch 
as tf e cafe was of great confequence, the confideration of the de- 
murrer was by the queen referred to all the judges of England : be- 
fore whom the counceli of Throckmorton faid, that the intent of 
the lord chancelor was not to impeach the faid judgments, but 
<;onfelling the faid judgments, to be relieved upon matter in 
equity : as if a man hath (as he is advifed) two matters to aid 
him, matter at the common law, and matter in equity, and being 
impleaded at the common law, doth by advice of his counceli 
aflay the common law, where his adverfary prevaileth againft him, 
and hath judgment accordingly, yet in this cafe the party may, 
confefling the judgment, fue to be relieved upon a collateral! matter 
in equity : and thereupon they fhewed fome prefidents in time of 
H. 8. E. 6. 6iz. and one in the point between Ward and ruU 
wood. But upon great deliberation it wns refolved by all the 
judges of England, that the plea of Sir Moyl Finch was good, 
and that the lord chancelor ought not to examitie the matter in 
equity after the judgement at the common law : for though the lord 
chancelor (as hath been faid) would not examine the judgment, 
yet he would by his decree take away the tffeft of the judgment : •27E.3. cap. r. 
and for the prefidents, thev were .rounded upon the fole opinion 4- H. 4. cap. zz. 
of the lord chancelor, an'd pafled Jub J^knth. But that fuch a ^^^^^ Soct'*i 
courfe ftiould be permitted, it ftiould be not only full of incon- .smd. '30. W*. z, 
venience, but direv5fly againft the laws and ftatutes of the realm, ca. 5. 
againft which no prefident or prefcription can prevail ; * which ^i^- Hafch. 
you may read at large in the third part of the Inftitutes, cap. Pre- 5 ^' 4 ^^ra™. 
munire. Whicii refolution of the jud ^es was figi\ified by Popham simoo*Nwre« " 
9hief juftice to the lord chancelor, and thereupon no further pro- caie. 
ceeding was againft Sir Moyle Finch, but his uiea ftood. Noia. 

In a cafe depending in chancery by Englifli bill between Means ^*"^- 37 ^ 3* 
plaintif and Saint-John and his wife adminiftratrix of John Alnion ^ "* Caucellar, 
defendant, the cafe was this : that the intellate took the profits of 
the lands of the plaintif being witnin age by force of a trult re- 
tofed in him by the father of the plaintif by liis Uft will, the 

n 4 ywriy 

86f The Court of Chancery. Cap,^ g. 

C 87 ]. 

yearly value of which lands was fourfcore pounds fer anmm^ and 
the inteftate took the profits from the 23 year of queen El. until! 
the 33 year of her reign, and with parcell of the profits purchafed 
lands in fee which descended to his heir, and left affets to his ad- 
mi niftratrix one of the defendants to fatisfie the plaintif, all debts 
paid. The queflion was, whether in this cafe the adminiflratrix 
might not be charged in equity for the faid mean profits : and Sir 
Thomas Egerton mafter of the rols faid, that he had feen a cafe in 
chancery in anno 34 H. 6. refolved by all the judges of Englanci- 
remaining in the Tower, that where the feoffees to ufe took the 
profits of the land, and received the rents, and made their execu- 
tors, and died leaving affets to fatisfie all debts over and above the 
faid rents and profits, that the executors fliould be charged to fatis- 
fie cejii que ufe for the faid rents and profits, and accordingly it was 
decreed in Mears cafeagainft the defendant: but whether the heir 
fliould be contributory or no, it was doubted. 
Pafch. 3zEI. in Withams cafe in the chancery was, that a tearm for years was 
^ncellana.^ granted to the ufe of a feme fole,' fhe took liufband and died, whe- 
Eborum. ' * ^'^'^'' ^^^ hufband fhould have the life, or the adminiftrators of the 
Vide 7 E. 4. 14. feme, was referred to the judges ; and by them it was refolved, that 
&18E. 4. II. the adminiflrators fliould have it, and not the hufband, becaufc 
^ ^^* that tills truft of a feme was a thing in privity, and in nature of an 

aftion, for which no remedy was but by writ o{ fnhpatna. And fo 
it was refolved by the juf^ices in Waterhoufes cafe, Hil. 8 Eliz. 
Eborum, for the truft runneth in privity in this cafe, and a huf- 
band fhould not be tenant by the curtefie of an ufe, nor the lord of 
the villain fliould have it at the common law. 
J^'"- ?^ ^^* ^^'' A man poffeffed of a tearm for years in lands, by his laft will de- 
kings bench in '^^^^^^ the fame to One and the heirs of his body begotten, made his 
Peacocks cafe. executors and died, the devifee entreth by the affent of the execu- 
tors, hath iffue and aliens the tearm and dieth : this alienation bar- 
reth the iifue, for a tearm for years cannot be entayled. And af- 
31 Elir. between terwards ^w;o 31 Eliz. in a cafe depending in chancer)^ between 
Higgins and Eliggins and Milles it was certified by the lord Anderfon and juflice 
Mils in Cancel- Walmfley (to whom it was referred) that no efiate taile could be. 

• of a tearm, and that the alienation of the devifee did bar the ifTue. 

Mic. 26. & In a premunire between John Perrot plaintif, and T. M. H. W. 

27 El. coram and others defendants, it was refolved by Sir Chriftopher Wray 
p|^^*^ . chief iuflice, and the court of kings bench, that the queen could 

loH. 6. ic'in "°^ ^"^^'"^ ^ court of equity by her letters patents, and that there 
London by pre- could be uo court of equity but by acl of parliament, or by pre- 
fciption. fcription time out of mind of man. But the queen might grant 

Notathisrefolu- power tmcre placita, or ccnvfans de-plea^ for all miift j"dge accord- 
thTcoVrcot'Te- ^''S ^^ °'^^ Ordinary rule of the common law, but otherwife it is of 
quefts. See here- proceedings extraordinary without any certain rule, 
after, cap. 9. Thefe cafes which upon fo great and mature deliberation have 

been refolved bv the judges of the realm, and whereunto we were 
privy and well acquainted with, we have thought good to report, 
and publifli for the, better direftion in hke cafes hereafter. 

He is made lord chancelor of England, or lord keeper of the 

Howhehcreateef. great feal, per iradltknem magni figiUi fihi per domimmi regent^ and by 

Camden, p. 131. taking his oath, /orz/z^ canccUarium conjlituendi regnante Henrico fe~ 

cu7ido full appendaido 7nagnum Anglic Jigillum ad collum cancellani 

ekai. ' ■ 

6 Some. 

Cap. 8. The Court of Chancery. 9f 

Some have gotten it by letters patents, • at will, and ^ one for ■ 35 H 6. 3. B. 
irrn of his lilc ; but it was hoUlen void, becaufe an ancient office o^Wmch. 1H.6, 


iijuft be grantetl, as it hath been accuftomed 

nu. 16 

t> Cardinal 
Wool fey. 

* It is enabled and declared, that the common law of this c ^ £i, ^^ ,g, 
realm is and always was, and ought to be talccn, that the keeper 

of the great fciil of England for the time being hath always 
kiid, ufed, aivd executed, and from thenceforth may have, take, 
ufe, and execute the fame and the like place, authority, pre- 
heminence, jurifditStion, execution of laws, &c. as the lord 
chancelor of England for the time being lawfully ufed, Sic, 

And fo it appeareth in 18 E. 3. nu 41. that the lord chancelor, Rotpar. X8E.3. 

er lord keeper for the time being ought to have conufance. nu. 41. 

• I finde that king H. 5. had two great feals, one of gold, which [ 88 ] 
he delivered to the bi Hi op of Durefme, and made him lord chan- ^Rot.par. iH.<k 
celour of England, and another of filver, which king Henry the ""• '3» i4» 

c delivered to the biftiop of London to keep. l?., },' " j* ^' 

" kVilliam de Ayremin garden des roues del cfiancelar et Jes com- ubi fupra. 
pa^^ions gardens dd grand feale. At this time was Robert Burnel b stat. de formt 
biihop of Bath and Wels chancelour of England. mitteiidi extraa. 

^ It is to be obferved, that where divers ancient flatutes fpeak of in fcaccarium, 
the chanctlour and of his lieutenant, it mud of neceflity be in- '""^ '^ ^- '• 
tended of fuch a lieutenant, as the law doth allow of, and that can- **^* ^^f^ ^^^ 
not be of a deputy, for the chancelour cannot make a deputy, but c a e 
locum tetuns is to be taken for one that holdeth the place, or hath jg libertatibus* 
equall authoritie of the chancelour, and that is cujios mngni fgitli : pcrquircndis. 
and this agreeth with the judgement of the fa id parliament in 5 Vet. Mag. Carta, 
Eliz. But all queftions are now taken away by the faid ad of 5 P^""^ ^- ^°- '*^^ 
Eliz. and at this day there being but one great feale, there cannot ^^^ ^'^^* ^ 
be both a lord chancelour and a lord keej^er of the great feale at 
pne time, l)ecaufe both thefe are but one oftice, as it is declared by 
the faid ad^. 

It is faid before, that the chancelour by his ordinary power may C&ncellarlusunde. 
bold plea oifcirefac^ to repeale the kings letters patents under the 
great feal being always inrolled in this court, which we (to make 
a true derivation of his name) fliall now particularly touch. This 
writ oi fc'irc fac^ to repeal letters patents doth lye in this ordi- 
nary courfe of juftice in three cafes. The firft, when the king by 6 E. 4. 9. 
bis letters patents doth grant by feverall letters patents one and Dicr 3Eiiz. 137. 
the felf fame thing to feveral perfons, the former patentee fhall * ^- 3- 7- 
have difcire fac' to repeal the fecond patent. Secondly, when the ^J £* ^ ??* 
king granteth any thing that is grantable upon a falfe fuggeftion, 
the king by his prerogative yw;-^ ngio may have zfcirefac* to repeal Lib. 2. fo. 14.&C 
his own grant. Thirdly, when the king doth grant any thing, 
which by law he cannot grant, he jure rcgio (for advancement of 
juftice and right) may have ^ fcirc fac' to repeal his own letters 
patents. Now the judgement in all thefe three cafes is, (^uhd 
pradifla^ litter re patentes di^i domini regis revocentur^ canctllentui\ 
evacuentur^ adnullentur^ et vacutty ct invalidity pro nullo pcnitus hahean- 
tur^ ct tcncantur ; ac etiam quod irrolulamentum eorundem cancelletur^ 
cajfetur^ et adnihiletury tsfc. Hereof our lord ciiancelour of Eng- 
land (for forein chancclours, it may be, have not like autiiority) 

88 The Court of Chancery. Cap. 8. 

IS called cancellarius^ a eancellando^ i. a d^gniori parte,, b^ino^ the high- 
eft point of his jurifdi(^ion to cancell tiie kings letter.; patents un- 
der the great feale, and da. riming the inrolment therLCi, by draw- 
*the Lord chart- ing ftrikts through it like a letrice. 

f ^" p^^* -^"^ ^^^^ ^^^^ which hath been faid concerning tiiC office of ^he 

lo R rot 8 ^^^'^^ chancelour, or lord keeper is included within hi';^ ouh, which 
Theoatlirecited! foUoweth in tllefe words, and confifteth upon fix parts. He fhall 
Vjd. rot. pari. fweare, 

iiH,4. I. That well and truly he fhall ferve our foveraigne lord the 
b Becaufe he \C\v\g and his •» people in the office of c. aiicelour ( :r lord keeper.) 
iu^dicfcTe,'' as is ^' ^^^^ ^^ ^^'^^^ ^^^ ^^S^^^ ^o al! '.-iuiiner of ()eople, poore and 
aforelaid. * Hch, after the ^ lawes and ufages of the reahn. 

*^ lo R. 2. rot. 3. That he fhall truly couniei the k'ng, and his counfell he 
par. nu. 8. fhall ^ iayne and keep. ' 

i/e.^ nu' Jo ^' '^^^^ ^^ ^^^^^ "°^ ^J^T^ "°'* ^^''^^ '"-'^^ ^^^'^^ ^^ difheriting of 

35. 37.4i""42.* t:he king,, or "^ that the rights of the crowne be decreafed by any 

^ Lauie is an meanes as far as he may let it. 

ancient French 5. And if he may not let it, he fhall make it clearly and ex- 
word, and figni- prefly to be known to the king;, with his true advice and coun- 
iiethtohide. f ll 

10 R. 2. nu.6,7, 6- And that he fliall do and purchafe the kings profit in all that 
8. &c. the cafe of he reafonablv may, as God him help, and bv the contents of tiii^ 

Mkh. de la Pole book. 
Chancelour of 

[ S9 ] Articles againjl Car din all IVooljey, 

Vid. ardc, 20, 

41, 26, 38. "41. Now for as much as the articles exhibited to king H. 8. r dh 
^2. 44. 46. Decemhris anno 21 of his reign, by the lords and others of his privy 

councell (whereof Sir Thomas More lord chancelour was one) 
and by two of the principall judges of the realm againfl cardinall" 
Woolfey, do in divers of the articles concern the jurifdi<f^tion of 
the chancery, (viz, the %o and 36 articles, &c.) and other titles of 
this fourth part of the Inftitutes, we have thought good juftly and 
truly to tranfcribe from the very originall, under the proper hands 
of the lords and others of the privy councell, and of the faid 
judges, (which we have feen and had iii our cuftody) and have 
(;;ompared this tranfcript with the originall it felfe, and have (be- 
caufe they are of great weight and ufe to many purpofes) tran- 
fcribed it de verbo in verhum^ without omiilion of any thing, as, 
matters of that nature ought to be : and the rather, for that in our 
Chronicles they are very untruly rehearfed : and before this time 
(that we finde) the true articles were never printed. 

Conftrained by neceffity of our fidehty and confcience, c«m- 
plaine and fliew to your mod royall majefty, we your graces hum- 
ble, true^ fakhfull, and obedient fubje^ts : that the lord cardinal! of 
York, lately your graces chancelour, prefuming to take upon him 
the authority' of the popes iegat de latere,, hath by divers and many 
fundry wayes and fafliions committed high and notable grievous, 
offences, mifufing, altering, and fubverting the order of your 
graces lawes: and otherwife contrary to your high honour, prero- 
gative, crown, eftate, and dignity regall, to the ineftimable great 
hinderance, diminution, and decay of the univerfall weaith of this 
your graces realm. And it is touched fummarily and particularly 
in cert;aia articles here foUowing, which be but a few in compari-, 

Cap. 8. The Court of Chancery. S9 

Ibn of all his enormities, cxccfTcs, and tranfereflions committed 
againll your graces lawes. That is to lay : 

1. FiVft, where vour grace and noble progenitors within this The fo? eraigntyj 
your realm of England, beinz kings of England, have been fo prerogative, 
free, that they have had in all the world none otiicr fovcraignc, but [Jo^n " |"j '?*** 
immediate lubjert to Almighty God in all things touching the re- h,,, e'? thT*" 
gality of your crown of England, and the fame preeminence, pre- crownc of Kaj- 
rogative, jurifdiftion, lawfull and peaceable pofleffion your grace land, 

and your noble proj^enitors hive hnd, ufed, and enjoyed, without 
interruption or bulindfe therefore by the fpace of aoo years and 
more: whereby your grace maypiefcrbe againft the po[)es holi- Prefcrlbe. 
nefle, that he mould not, nor ought to fend or make any legat, to 
execute any authority legatine contrary to your gr^xcs prerogative 
within this your realme. Now the lord cardinal! of York being Cardlnali of 
your fubjecit and naturall lieoe borne, hath of his high, orgallous, York, 
and infatiable minde, for his own Angular advancement and iro- 
fir, in derogntion, and to the great imblemiflmient and hurt of 
your faid regali jnrifdidion and prerogative, and the long continu- 
ance of the pofleflion of the fame, hath obtained authority lega- Authority lega- 
tine : by reafon whereof he hath not only hurt your faid prefcrip- tine, 
tion, but alfo by the fail authority legatine, hath fpoyled and taken Sp.-yled many 
away from many houfes of reli ion within this your realm much houfes of rdi. 
fubftance of their goods. And alio hath ufurped uoon all your ^'"" 
ordinaries within this vour re?.lme muc . pan of their jurifd;6tion, ^'"''Pf ' "P- 

• J ^' c • J ^ ^L -. L ^ r 'on ordinaries. 

m derogation of your prerogative, and to the great hurt ot your 
faid ordinaries, prelates, and reiigious. 

2. Alfo the faid lord cardinall being yo\ir ambaflTadour in France, Ambafladour, 
made a treaty with tlie Fr. nch king for the pt^pe, your majefty not 
knowing any part thereof, nor named in the fame ; and b'nding 

the faid French king to abide his order and award of any contro- 
verfie or doubt fhould arife upon the fame, betwixt the faid pope 
and the French king. 

3. Alfo the faid lord cardinall being your ambafladour in Ambafladour 
France, fent a commiffion to Sir Gregory de CaflTalis under your 

great feale in your graces name, to conclude a treaty of amity with 

the duke of Ferrare, without any commandment or warr-int of [ 90 ] 

your highneffe, nor your faid hi^hnefTc advertifed or made privy 

to the fame. * 

4- Alfo the faid lord cardinall, of his prefumptiious minde, in 
divers and many of his letters and inftru*5lions fent out of this 
realm to outward parts, had joyned himfelf with your grace, as in 
laying and writing. The king an^i I would ye fhould do thus. The Tbckiflg and I. 
king and I do give unto you our hearty thankes. Wiiereby it is 
apparent that he ufed himfelf more ^ike a fellow to your highnes, 
then like a fubjetf^. 

5. Alfo where it hath ever been accudomed within this realm, 
that when noble men do fware their houfliold fervants, the firil 

part of their oath hath been, that they fliould be true liege men to OaJv 
the king and his heirs kings of England : the fame lord cardinall 
caufed his fervants to be only fworne to him, as if there had been 
no foveraign above him. 

6. And alfo whereas your grace is our foveraign lord and head, 
in whom ftandeth all the furety and wealth of this realm ; the 
^me lord caxdinall knowing himfcllc to have the fuul rnd conta*. 


JO The Court of Chancery. Cap. S. 

Cveat pocks. gious difeafe of the great pocks broken out upoa him in divers 
places of his body, came daily to your grace, rown ng in yoiireare 
and blowing upon your raoft noble grace with his perilous and in- 
fedive breath, to the marvellous danger of your highnefie, if God 
of his infinite goodnefle had not better provided for your highnefTe, 
And when he was once healed of them, he made your grace to be- 
leeve, that his difeafe was an impofthume in his head, and of none 
other thing, 

7. Alfo the faid lord cardinall by his authority legatine, hath givea 
by prevention the benefices of divers perfons, as well fpirituall as 
temporall, contrary to your crown and dignity, and your lawes 
and ftatutes therefore provided: by reafon whereof he is in danger 
to your grace of forfeiture of his lands and goods, and his body at 
your plealure. 

8. Alfo the faid lord cardinall taking upon him otherwife then a 
true counfellour ought to do, hath ufed to have all ambaffadours ta 
come firft to him alone, and fo hearing their charges and intents, it 
is. to be thought he hath intruded them after his pleafure and pur« 
pofe before that they came to your prefence, contrary to your high 
commandment by ymir graces mouth to him given : and alfo la 
other perfons fent to him by your grace, 

9. Alfo the faid lord cardinall hath pra(5lifed fo, that all man^ 
ner letters fent from beyond the fea to your highneffc, have- 
comen firft to his hands,^ contrary to your high commandment 
by your own mouth, and alfo by others fent to him by your 
grace : by reafon whereof, your highnefie nor any of your coun* 
cell had knowledge of moe matters but of fuch as k pleafed 
him to fhew them : whereby your highneffe and your counceH 
have been compelled of vtry force to follow his devices, which 
oftenrimes were fet forth by him under foch crafty and covert 
meanings, that your highnefle and your councell have often times 
been abufed : infomuch that when your councell have foynd and* 
put divers doubts and things v.'hich afterwards have enihed, he ta 
abufe them ufed thefe words, [1 will lay my h^ad that no fuch, 
thing fliall happen.] 

10. Alfo the faid lord cardinall hath prai^ifed, that no manner 
perfon having charge to make efpiall of things done beyond the fea, 
ihould at their returne come firft to your grace, nor to any other of 
your councell, but only to himfelf : an^l in cafe they did the con- 
trary, he punifhed them for their fo doing. 

11. Alfo the faid lord cardinall hath granted licences under 
vour great feal, for carrying out of grain and other victuals after 
the reftraint hath been made thereof, for his own lucre and lin- 
gular advantage of him and his fervants for to fend thither as he 
bare fecret favour, without your graces warrant or knowledge 

12. Alfo the faid lord cardinall ufed many years together, not only 
to write unto all your ambafladours refident with other princes in 
his own name, ^11 advertiferaents concerning your graces affairs. 
being in their charge, and in the fame his letters vvrote many 

[ gx ] things of his own, mind without your graces pleafure known, con- 

cealing divers things, which had been neceffary for them to know : 
but alfo caufed tliem to write their advertifements unto him. And 
of the fame letters he ufed to conceal for the compalfing oihis pur- 



Forein arnbaf* 

Lettera fent from 
feeyond fea. 
fh& to him. 


Torclgn mtclll-^ 
gen.c to him. 

Ltcenfes to 
tranfpoic grain 
and vidluallt 

refident with 
other princes. 


Cap. 8. The Court of Chancery. (^t 

poft n»any things both from kH your other counfcloiirs, ?ind from 
your i'tAf nllb. 

13. Alfo where good hofpitality hath been nfcd to be kept in HorpUalitjr »a 
lioules and plncc«; of religion of this realm, and many poore peo- ^\fjuics of idi- 
ple thereby relieved, the laid hofpitality and relief is now tlecaycd *'*" <'^*y'<*« 
nnd tiot wfed : and it is commonly reported that tlie occafion 

thereof is, bccaufe the faid lord cardi nail hath taken fuch impofi- 'inpofitiom. 
tions of the rnlcrs of the faid houfes, as well for his favour in mak- 
ing of abbots and priors, as for his vifitation by his authority lega*- 
tine. And yet ncverthelelTe taketh yearly of fuch religious hoiiies, Yearly cbar^eik 
l*uch yearlie and continuall charges, as they be not able to keep 
hofpitalitie as they were iifcd to do : which is a great caufe that 
there be fo many vagabonds, beggei"s, and thieves. 

14. Alfo where the fame I. cardinal faid before the fuppreflion Suppnfliooof 
of fuch houfes as he hath fupprelfed, that the poflelTions of them houfes. 
thould be fet to ferme among your lay fiibje<flts after fuch reafon- Reafo aW 
able yearly rent as they Ihould well thereupon live, and keep jrood rents. 
hofpitality : and now the demefne pofleiiion of the fame houfes 

iince the fupprefTion of them hath been furveyed, met, and mea- 

fured by the acre, and be now fet above the value of the old rent. Above tfacv^ac. 

And alfo fuch as were fermors by covent feal, and copieholders be 

put out and amoved of their fermes, or elfe compelled to pay new New fine. 

line contrary to all equitie and confcience. 

15. Alfo the faid lord cardinall fitting am6ng the lords and other 

of your mod honourable privie councell, ufed himfclf, that if any Abtifed thtynrr 

man would iliew his minde, according to his duty, contrary to the councclL 
opinion of the faid cardinall, he would fo take him up with his ac- 
"cuftomable words, that they were better to hold their peace then 
to fpeak, fo that he would heave no man fpeak but one or two great 

j>erlonages, fo that he would have all the words himfelfe, and con- All the wor^ 

lumed much time with a fair tale. himfdfc 

16. Alfo the faid lord cardinall by his ambition and pride hath Ambition and 
hindred and undone many of your poore fubjec^s for watU of dif- PJ!*^"^ 
patchment of matters, for he would no man (liould meddle but pat "h **^ *^*^' 
himfelf, infomuch that it hath been athrmed by many wife men, NoVantom«<l- 
that ten of the mod wifeft and mod expert men in England were die buthimkite. 
not fufticient in convenient tim.e to order the matters that he would 

retain to himfelfe. And many times he deferred the ending of 

matters, becaufe that fuiters ihould attend and wait ujx>n him, Suters to attend. 

whereof he had no fmall pleafure, that his houfe might be reple- 

niflicd with fuiters. 

17. Alfo the faid lord cardinall by his authority legatine hath Taken the pooi« 
ufed, if any fpiritnall man having any riches or fubdance, deceaf- of rpiritualimcn 
cd, he hath taken their goods as his own, by reafon whereof their deceafcd. 
wills be not performed : and one mean he had to put tliem in 

fear, that were made executors, to refufe to meddle. 

18. Alfo the faid lord cardinall condrained all ordinaries in All ordinarfe*, 
England yeerly to compound with him, or elfe he will ufurp halfe, &c.tocoinpouai 
or the whole of their jurifdi6tion by prevention, not for good or- «"th hiuj. 

der of the diocefles, but to extort treafure : for there is never a 
poore archdeacon in England, but that he paid yearly to him a 
portion of his living. 

19. Alfo the faid lord cardinall hath not only by his untrue Slandered TelK. 
iliggeftion to the pope fkimefuUv Ihndered manv good relif^ious g'ous Uovfti m 

houfe.s ^^P°?^' 


By aiithorlty of 
hi: buil fup- 
preffed 30 houfes 
of religion* 

Gaufed divers 
ofHces to be 
found untruly. 

lExaroined mat- 
ters in chancery 



His fervancs 

The popes par- 

fhQ Court 0/ Chancery. Cap. 8 < 


Eleftions of ab- 
bots, priuis, SiC. 





Penfion out of 

houfes, and good vertuous men dwelling in them, but alfo fup- 
prelTed by reafon thereof above thirty houfes of religion. And 
where by authority of his bull he fhould not fuppreffe any houfe, 
that had mo men of religion in number above the number of 6 or 
7, he hath fupprefTed divers houfes that had above the number. 
And thereupon hath caufed divers offices to be found by verdi£t 
untruly^ that the religious perfons fo fupprefTed had voluntarily 
forfaken their faid houfes, which was imtrue, and fo hath caufed 
open perjury to be committed, to the high difpleafure of Almighty 

2b. Alfo the faid lord cardinall hath examined divers and many 
matters in the chancery after judgement thereof given at the com- 
mon law, in fubverfion of your lawes, and made fome perfons re- 
ftore againe to the other party condemned that, that they had in 
execution by vertue of the judgement at the common law. 

21. Alfo the faid lord cardinall hath granted many injunftions 
by writ, and the parties never called thereunto, nor bill put in 
againft them : and by reafon thereof, divers of your fubje6^s have' 
been put from their lawfull polTeffion of their lands and tenements. 
And by fuch means he hath brought the more party of the fuiters 
of this your realm before himfelf, whereby he and divers of his 
fervants have gotten much riches, and your fubjeds fuffered great 

22. Alfo the faid lord cardinall to augment his great riches 
hath caufed divers pardons granted by the pope to be fufpended, 
which could not be revived, titt that the faid lord cardinall were 
rewarded, and alfo have a yearly penfion of the faid pardon. 

23. Alfo the faid lord cardinall not regarding your lawes nor 
juflice, of his extort power hath put out divers and many fermors 
of his lands, and alfo patentees of the arch-bifhoprick of York and 
the biflioprick of Wincheller, and of the abbey of St. Albons, which 
had good and fuilicient grant thereof by your lawes. 

24. Aifo the fame lord cardinall, at many times when any 
houfes of religion have been void, he hath fent his officers thither^ 
and with crafty perfwafions hath induced them to compromit 
their eledion in him. And that before he named or confirmed 
any of them, he and his fervants received fo much great goods of 
them, that in manner it hath been to the undoing of the houfe. 

25. Alfo by his authority ^gatine, the fame lord cardinall hath 
vifited the moft part of the religious houfes and coUedges of this 
your realm, and hath taken from them the twenty fifth part of 
their lively-hood, to the great extortion of your fubjefts and dero- 
gation of vour lawes and prerogative, and no law to bear him fo to 

26. Alfo when matters have been near at judgement by proces 
at your common law, the fame lord cardinall hath not only given 
and fent injundlions to the parties, but alfo fent for your judges, 
and exprefly by threats commanding them to defer the judgement, 
to the evident fubverfion of your lawes, if the judges would {9 
have ceafed. 

£7. Alfo whereas neither the bifhop of York nor Winchefter, 
nor the abbey of S. Albons, nor the profit of his legation, nor the 
benefit of the chancery, nor his great penfion out of France, nor 
his ward?, and other inordinate taking could not fuffice him, he 


Can. 9. The Court of Chancery, gi> 

hath Tiadc his fonnc mnter to fp<nd fcven and twenty hundred HU fon Winter. 

pounds bv the year, which he takcth to his own ufc, and giveth 
him not uift two liundrcd pounds yearly to live upon. 

a8. Alfo where the (iiid lord caniinall did firft fie unto your 
orace to have your aflcnt to he 1: g.»t ^.* /r7/ar, he promifed and fo- L«gat De fgtere. 
1 ill »;v proreftcd before your majeftie, and before the lords both His prom;fc. 
f.iriiuail and tcniporall, that he would nothing (\o nor attem ;t by Nothing agalnil 
tiie virtue ot his legac'e, that ftiould be contrary to vour gra- J^'';"]^*"** ®f 
dons prerogative or regalitie, or to the damage or prejudice of the Zi\otht prcju- 
jurifdidion of anv oniinarv', and that by his legacie no man fliould dice of ordinary 
be hurted nor offended: and upon that condition, and no other, jutfdiaioii. 
he was admitted bv your grace to be legate within this your realm : 
which condition he hath broken, as is well known to all your fub- Breach of pro- 
jefts. And when that he m^de this promife, he was bufie in his mife. 
fuit at Rome to vilit all the clergy of England both exempt and not 

29. Aifo upon the fuit of the faid lord cardinall at Rome to Untrue furmlfc 
have his authority legatine, he made iinttiie furmife to the popes tothep>pcof 
holinefle againft the clergi^ of your realm : which was, that the die chrgy. 
regular perfons of the faid c'ergie irid given themfelves in reprohum 

fcnfum ; which words S. Paul writing to t!ie Romans applyed to 
abominable finne : which (lander to your church of England fliall 
for ever remaia in the regilter at Rome, againft: the clergy of this 
your realm. 

30. Alfo the faid lord cnrdinali had the more part of the goods f 93 ] 
of do<ftor Smith late bifliop of Lincoln, bifliop Savage of York, q ^^^^^^ ^^^ 
mafter Dalbye archdeacon of Ric'.n uit, mal'-er Tonyers, doflor exwrtioo" "'^ 
Rothall late bifliop of Durham, an., cf dodlor Foxe late bifiiop of 
Winchefter, contrary to their wils, and your laws and juftice. 

31. Alfo at the oier and tern.ii er at York, proclamation was Extortion of 
made that every man fliould put in their bils for extortion of ordi- ordinaries, 
nnries, and when divers bils were rut in agamft the officers of the ^"^'"^."'c"^^' 0^ 
faid lord cardinall of extortion, tor tr-.king twelve pence of the removed" i^nt^ * 
pound for probation of tellament^, whereof divers bils were found the chancery, 
before juftice Fitzherbert and r *her conmiflioners, the faid lord 

cardinall removed the faid indifl o'^nts into the chancery by c« - 
tiorari^ and rebuked the faid Fitzherbert for the fame caufe. 

32. Alfo the faid lord cardinall hath bufied and endeavored Made debate be- 
himfelf by crafty and untrue tales to make diffention and debate t«f"en the nobl«i 
amongft your nobles of your realm, which is ready to be proved. ° *'*"^ ™* 

33. Alfo the faid lord cardinals otficers have divers times com- Purveyance for 
pelled your fubjefts to ferve him with carts for carriage, and alfo p ^* 

his fervants have taken both corn and cattle, fifti, and all other th^'kin?"" cc 
vi(5luall, at your graces price, or under, as though it had been for Vid.ini. 35, 36. 
your grace, which is contrary to vour I iws. 

34. Alfo the faid lord cardinall hatii miiufed himself in your Keeping great 
moft honourable court, in keeping of as great efta'c there in your *^'*''^'^ "* '^'-"^ 
abfence, as your grace would have done if you had been there 

prefrnt in your own > erfon. 

35. Alfo his fervants by ver-ue of your commifTion under your P irveyance. 
broad feal by him to them given, have taken cattel and all other ^* ■f^«-»«'»e "> 
vi£tuall at as low a price as your purvey v)rs have do"!e for your P**"*'> *"*'*• 
grace by your prerogative, againft the laws of your rc^im. 

36. Alfo where it hath been acculioaied that your purveyors for PurTey«ac«. 



Injunftlon not 
to fuo for par- 
don forcaufes in 
the ftar- cham- 

A great pre- 


Legh of Ad ling- 

The card, kept 
jtarkes daugliter 
and had by her 
two children. 

Clerk of the 

Prices of visu- 

Pulled down the 
prices^ ice. 


The cardinals 
hat in the 
kings coin of 
groats, SiC. 

the Court of Chancery. Cap. S. 

your honourable houfliold, have had yearly out of your town and 
liberty of S. Albons three or four hundred quarters of wheat, 
truth it is, that fince the lord cardinall had the room of the abbot, 
that your faid purveyors could not be fuffered by him and his of- 
ficers to take any wheat within the faid town or liberty. 

37. Alfo he hath divers times given injunctions to your fervant* 
that have been for caufes before him in the ftar- chamber, that 
they, nor other for them fhould make, labour by any manner way, 
directly or indirectly, to your grace to obtain your graces favour or 
pardon ; which was a prefumptuous intent tor any fubjeCt. 

38. Alfo the faid lord cardinall did call before him Sir John 
Stanly knight, which had taken a farm by covent feal of the ab» 
bot and covent of Cheller, and afterward by his power and might 
conti-ary to right committed the faid Sir John Stanly to the prifon 
of Fleet by the fpace of a year unto fuch time as he compelled the 
faid Sir John to releafe his covent feal to one Leghe of Adlington, 
which married one Larks daughter, which woman the faid lord 
cardinall kept, and had with her two children. Whereupon the 
faid Sir John Stanly upon difpleafure taken in his heart made him* 
felf monke in Weftminfter, and there died. 

39. Alfo on a time your grace being at S. Albons according to 
the ancient cuftome ufed within your verge, your clerk of the 
market doing his office, did prefent unto your officers of your mod 
honourable houfliold the prices of all manner of victuals within 
the precinCt of the verge. And it was commanded by your faid 
officers to fet up the faid prices both on the gates of your honor- 
able houfliould, and alfo within the m.arket place within the town, 
of S. Albons as of ancient cuftome hath been ufed. And the 
lord cardinall hearing the fame, prefumptuoufty, not like a fubJeCt 
caufed the aforefaid prices which were fealed with your graces feal, 
accuftomably ufed for the fame, to be taken off and pulled down 
in the faid market place, where they were fet up : and in the fame 
places fet up his owne prices fealed with his feale, and would if it 
had not been letted in fembiable manner, ufed your feal ftanding 
upon your gates. And alfo would of his prefumptuous mind 
have openly fet in the ftocks within your faid town your clerk of 
your market. By which prefumption and ufurpation your grace 
may perceive that in his heart he hath reputed himfelf to be equal! 
with your rcall majelty. 

40. Alfo the faid lord cardinall of his further pompous and pre- 
fumptuous mind hath enterprifed to join and imprint the cardinals 
hat under your arms in your coin of groats made at your city of 
York, which like deed hath not been leen to be done by any fub- 
jeCt within your realm before this time. 

41. Alfo where one Sir Edward Jones clerk parfon of Crowly 
in the county of Buck' in the eighteenth yeer of your moft noble 
reign let his faid parfonagc with all tithes and other profits of the 
fame to one William Johnfon by indenture for certain years, with- 
in which years, the dean of the faid cardinals colledge in Oxen- 
ford pretended title to a certain portion of tithes within the faid 
parfonage, fuppofing the faid portion to belong to the parfonagc 
of Chichelly, which was appointed to the priory of Tykeford lately 
fupprefled, 'where (of truth) the parfoni of Crowly have been 


Cap. 8. The Court of Chancery. 


peaceably polTcficd of the fald portion out of the time of mind. 
Whereupon a jubpmta was dirc<hcd to the faid Johnfon to ap|)ear Subp<rn«# 
afore the lord cardinall at Hampton-court, out of any tearm, with 
an injtnidtion to futfer the faid dean to occupy the faid portion. 
Whereupon the faid Johnfon appeared before the faid lord cardinal I 
at Hampton-court, where without any bill, the faid lord cardinall 
conimitted him to the Fleet, where he remained by the fpace of 
twelve weeks, bccnufe he would not depart with the laid portion. 
And at the laft upon a recognifance made that he Hioiild appear 
before the faid lord cardinall whenfoever he was commanded, he 
■was delivered out of the Fleet ; howbeit as yet the faid portion is 
io kept from him that he dare not deal with it. 

42. Alfo where one Martin Decowra had a Icafeof the mannor 
of Balfall in the county of Warwick for tcarm of certain years, 

an injunction came to him out of the chancery by writ upon pain Injun^ion. 

of a thoufand pounds, that he fliouid avoide the pofleffion of the 

fame mannor, and fuffcr Sir George Throckmorton knight to rake 

the profits of the fame mannor to the time the matter depending 

in the chancery between the lord of S. Johns and the faid Decowra 

were difculfcd. And yet the faid Decowra never made anfwer in 

the chancery, ne ever was called into the chancery for that matter. 

and now of late he hath received a like injundion upon pain of 

two thoufand pounds contrary to the caiirfe of the common law. 

43. Alfo whereas in the parliament chamber, and in open par- 
liament communication and devifes were had and moved, wherein 

mention was an incident made of matters touching herefies, and Herefics md cr- 
erroneous fefts, it was fpoken and reported by one bilhop there ^^^^'^^^ f^"^*- 
being prefent, and confirmed by a good number of the fame bi- 
fliops, in prefence of all the lords fpirituall and temporal I then af- 
fembled, that two of the faid bifliops were minded and defircd to 
repair unto the univerfity of Cambridge for examination, reforma- 
tion, and correftion of fuch errars as then feemed and were re- 
ported to reign aniongft the ftudents and fcholars of the fame, as 
well touching the Lutherane fe(ft and opinions, as otherwife. The 
lord cardinall informed of the good minds and intents of the faid 
two bifliops in that behalf, exprefly inhibited and commanded 
them in no wife fo to doe. By means whereof, the fame errors, 
as they affirmed, crept more abroad and took greater place ; fayin-.j 
furthermore that it was not in their defaults, that the faid herefies 
were not puniflied, but in the faid lord cardinall, and that it was 
no reafon any blame or lack fliould be arretted to them for his of- 
fence: whereby it evidently appeareth that the faid /.ord cardinall 
befides all other his hainous offences, hath been the impeachcr and 
dillurber of due and direct corre<5tion of herefics, being highly to 
the danger and perill of the whole body, an<;1 good chriftian people 
of this your realm. ' 

44. Finally, forafmuch as by the aforefn'id articles is evidently ^ 
declared to your mod royall majcfty, that the lord cardinall by his [ 95 J 
outrageous pride hath greatly fliadowed a Ibng fcafon your graces 

honor, which is moft highly to be regarded, and by his infatiable 
avarice and ravinous appetite to have riches and treafure without 
meafure, hatii fo grievoufly opprefied your poor fubjecfts with fo 
manifold crafts of bribery and extortion, that the common- wealth 
oi this your graces realm is thereby greatly tiecavcd and impove- 
IV. f.NST. I ' r.fhed. 


* Chief juftice 
of England. 

* Sir Anth. 
Fitzh. a juftice 
of the c:u t of 
common pleas. 

* He was not 
called mafter of 
the rols, until! 
II H. 7. ca. zo, 
but never fo 
called in any 
letters patents of 
this office. 

^ Fortcfc. C3. 24. 

* See the charter 
of eiedlion by 
king H. 3. 
Holling. 12S1. 
VJd. Rot, pari. 
18 E. I. nu. 
There were 
above fourfcore 
converts in 

18 E. I. and 
petitioned in 
parliament for 
more relief. 
*^ Rot. pat. 1 1 Ap. 
S.I E. 3. which 
you may read at 
large in Hul- 

pa. 1281. ii$2. 
•i Ex bundello 
petic. pari, 
1 R. 2. 

Garden ties relies 
de la chancer'^ ct 
dc la tntajon dcs 
convirjti de Lcn~ 

Nota the mafter 
of the rols or 
keeper is garde.a 
of the houfe of 
converts of the 
patronage or gift 
cf the king. 

The Court of Chancery. Capi 8. 

rifhcd. And alfo by his cruelty, iniquity, afFeftion, and partiality, 
bath fubverted the due courfe and order of your graces laws to tlie 
undoing of a great number of your loving people. 

Pleaie it your moft royall majefly therefore of your excellent 
goodnefTe towards the weal of this your realm and fubje(5ls of the 
i'ame, to fet fuch order and direction upon the faid lord cardinall, as 
rnay be to the terrible example of other to beware fo to oifend youi 
grace, and your laws hereafter. And that he be fo provided for 
that he never have any power, jurifdI6lion or authority hereafter 
to trouble, vex, and impoverifli the common-wealth of this your 
realm, as he hath done heretofore, to the great hurt and dammage of 
every man almoft high and low, which for your grace fo doing, 
will daily pray, as their duty is, to almighty God for the profper- 
ous eftate of your moft royall majefty, long to endure in honor 
and good health, to the pleafure of God, and your hearts moft de- 
fire. Subfcribed the firft day of December the 21 year of the reign 
of our foveraign lord king Henry the 8. 

T. More. T. Norffblk. Charl. Sulf. Tho. Dorfet. H. Exon. 
John Oxinford. H. Northumberland. G. Shrewibury. R. Fitz- 
water. T. Rocheford. T. Darcy. W. Mountjoy. WiUiam Sandys. 

William Fitzwilliam. Henry Guldeford. * John Fitz James. 
* Anthony Fitz Herbert. 

So thefe articles began to be fnbfcribed by Sir Thomas More 
lord chancelor, and ended with the two judges of the law. 

There be in this court many officers, minifters, and clerks of 
the court, the principall whereof is the * mafter of the rols, an- 
ciently called garden ties rolles^ ckricus rctulortim^ cu/Ios rotidorum. And 
this is an ancient office, and grantable either for life, or at will, at the 
pleafure of the king. ^ The houfe annexed to his office, is called 
donius cur.verforuu:^ fo called becaiile * king H. 3. founded this houfe 
to be a houfe of Jews as flionld be converted to the true religioji 
of Jefus Chrift, and there fliould ha\e maintenance and allow- 
ance, which continueth to this day. King E. 3. amio 15 of his 
reign, by letters patents annexed this houfe to the office of a/Jios 
rotulorian, and this office is grantable by letters patents : for the 
more affin*ance whereof, and of divers things v/orthy of obferva- 
tion, we have thought good to fet down an acl of parliament con- 
cerning this matter iiv hefe words. 

* King E. 3. by his charter amio j;i of his reign did grant after 
the death of William Burftall then keeper of the rols and of the 
fiime. houfe of converts of the kings grant to the keeper of the 
rols for the time being, and annexed it to the faid office hnperpe-' 
tuum, and further granted that after the deceafe of the faid Wil- 
liam, the chancelor or keeper of the great leal after the voidance 
of the faid office of keeping of the rols to inftitute fucceffivcly the 
keepers of the rols, in di^la domo conierjorum^ et aifiodes illos ponend* 
in pojfeffiorie ejufde?n^ ^c. This charter was confirmed by ad of 
parliament, as by that which folioweth appeareth. 

^ A mjirc trejdoute H. le rcy et Jon honour ahle coimfeil en ceft parlia- 
jnent fufplie f OK petit cUrke VFilliam dc Burftall gardciner dts rolles dc 
la cancellarie, et gardeii\ier de la msafon des converfes de Londres quele eft 
de voftre honorable patrohage que come le dit IVilliam a fes irefgraundes 
cujlages et reparills la chappelle de les edifices du dit jneafon^ et noftre 
Jeig?iiork roy darei?ie ('.que dieu ajfoil) piirmaiutenance de la dit chappelle 


Cap. 8. The Court of Chancery. 96 

€t meafen a la p*ier du Hit tVilliam panta pttr luy ft fcs heires per fes 
Utters patents ifue le dit mea/on de corrverfe apres k dccenfc du Jit H'il- 
Uam dfmerern n toxs jetnT rts var.h^n' de dits roUes pur Ic temps ejieants 
i9ir:c tlijaont en ic c r cot ain forme com} rife en letter i 

^ ^ :>^ pUaJe a ttofire dtt ^ ^ rcy ef fei^nion du pnrliartent 

cmjirmcr la dit p-ant ct les Utters patents i/fr.t tnt feiii%, et Us chojes 
otmprifes en jcels en tuier de charitie, Whercuiito lull aflciU was 
given by authority of parliament. 

After which ad of parliament John de Waltham gardein or Rot. pat. 6 R. 2, 
ke^l cr of the rols obtained of R. 2. in the fixth year of his reign 
letters patents, whereby the king granted to him et fuccefforibus fuis 
cufiodibus rotulorum the laid houfe of converts ; and the reafon here- 
of feemeih to be, for that in the faid charter of 5 1 K. 3. fl^i ctfuc- 
eejoribus f: is wanted. This John of Waltham was in 12 R. 2. 
bifliop of Salilbnry, and aficr treafurcr of England. Hereby ic 
appeareth what ettate the mailer of the rols hath in domo converfo- 
rum. And this houfe is the place where the rols of the chancery 
are kept, and are fo called becaufe they arc written in parchment, 
and made uj) in bundels of rols, that is to fay, of charters, letters 
patents, commiflions, deeds enrolled, recognifances, &c. 

Thefe records fince the beginning of H. 7. remain in the rols, 
and all before were tranfmitted into the Tower, and there re- 

Alfo for fiirther manifefl^ation hereof, we have thought good to 
fct down a letters patents of this office in the 25 year of H. 6. and 
the rather for that it was granted authoritate parliamenti^ in thefe 
words, Henricus Dei gratia nx Anglia^ et Franciee^ et domi?ius Hiher- 
ni^^ omnibus ad quos prcefentes Irce. tervcnerint. Sciatis quod cum nos ^'^'■'<^"' nofter 

, ^- J ■ 1- \T I ' ^. n • t • r • n- • cuitos rotulorum 

tertio dtcimo die T^Qvembris^ anno regni nofiri dccimo fptimo cunjtituimus etlibrorum can- cleticum ncji\u?n JoliannenSt.ptnden cujlodem rotulorum tt li- cellar' noftrse 
hrorvm cancellarice nrjlrce cum omnibus ad officium illud fpeilantibus^ per- cum omnibus ad 
cipiend' in eodcm officio feoda^ commoditaies^ et proficua confueta^ quamdiu ^^A' "'"p^ij- 
nabis placuerit, Et ultaius dederimus, et conce/Tcrimus eidem Johanni /^_ * „ a, - ' 
culiodiam domus no/tra converjorwu prafato officio pfo inhabit atione diHi coavcri'orum. 
-.ijlodii per progenitores noflros quondam reges Anglia ab antiquo depcfitte^ 
ft atmexce : habendum et tenendum cuflodiam illam cum omnibus juribus et 
pertinentiis fpe^antibus ad eandtm^ prout in Iris, nofris patent ibus inde 
corfetiis plmius continetur. Nos bonuni et gratuifum fo^^icium quod di- 
le^us clericus nofler Thomas Kirkby nobis ante hac tempera multiplidter 
impendit^ indicfyue Impemkrc non defjiit merite contcmplantes^ ac de fide- 
li'tate, circumf^eSiicne et induftria ipfus Thom^e plenius confidentes^ con- 
Jiituimus iffum Thomam cufiodem rotulorum et librorum cancellaria nofirce Cuftos rotulo- 
cum omnibus ad officium illud fpe^antibus, pcrcipiendo in eodcm officio rum, 4ii. 
feoda, ccmmoditntes^ et proficua confueta a tempore quo officium illud per 
ceffionem feu alio modo quocunque proximo vac are contiga-it, quamdiu no- 
bis placuerit. Et ultc^ius dedimus ct concfffimuSy ac p, prcefr.tcs damus 
't concedimus eidcm Ihom/e cuflodiam di^^ domus nne. conveiforvm p'if- 
'"•to ofUcio pro inliabitationc ejufdcm cuflcdis per didos progenitores mo^. 
ih anti<^ (ut pramitittur) difpofiter et annex.^. Hal^end' et tenend* 
. :Jem Thom/e cuflodiam illam cum omnibus juribus et pertinentiis fpeC' 
tiiniibus ad candem quamdiu ipfum Tliomam dtdum officium cuficdis rctu- 
krum et librotum pr^di^orum habere et ttneie five occvpare contlrjiit. 
Eo quod cxpreffa mentio de vcro "jalae annuo officii prerdihi et caterer urn 
pramifjorum feu alicujus eorum, nut de aliis donis feu concejfijnibt's per 
ms pra-fat7 Thoma mit^ fute tenpcra faais in prafcntihus faHei non 

I 2 txiflit^ 



* Belonging an- 
ciently to his of- 

See theftatutcof 
34 H. 8. cap. 8. 

The Court of Requefls. Cap. 91 

exi/l'it^ aut td'iquibus aHihus Jive ordlnatlonihus in contrartum edith Jive 
ordh.afis, aut all qua alia cauja^ re^ J'eu materia in aliquo non ohjlanii- 
hus. In ci'jus ret tejlimonium has Iras, nras. Jieri Jedmus patentes* 
Tejle meipjo apud Maidjion vicejimo nono die Martii^ anno regni nri, vice- 
fmo (juinto. Authoritate parliamenti. 

Of latter times in the grant of this office he is ftiled ckricus * 
parvce bag^e^ cujhs rctidorum, et domus converforum. 

The niafter of the rols hath injure officii, tlie gift of the offices of 
fix clerks in the chancery. 

In the abfence of the lord chancellor he heareth caiifes and giv- 
eth orders. 

See in the third part of the Inllitutes, cap. Praemunire. 


The Court of Requefts. 

Sec hereafter the 
Courts of Au- 
dience and Fa- 
culties, pa. 

CafTaneus 7 part, 
fo. 136. b. 

See before cap. 
Chancery. Pe- 
rots cafe, pag.87. 
See the articles 
again ft c aid i nail 
"Woolfy, p. 89. 
See Hah Chro- 
nicle ubi fupra. 
and Guines 
learned preface 
to his readiniT in 
Ct Llovd. Rot. 

HAVING fpoken of the court of chancery, fwayed and go- 
verned by the lord chancelour, or keeper of the great feale : 
it fliall be fit in this place to treat of the jurifdiftion of the 
court of requefls, wherein the lord privie feale at his pleafure, and 
the maflers of requefls doe affemble and fit. And the originall in- 
flitution hereof was, that fuch petitions as were exhibited to the 
king, and delivered to the maflers of the requefls, Ihould be perufed 
by them, and the party directed by them to take his remedy ac- 
cording to their cafe, either at the common law, or in the court of 
chancery. And thereupon they were called tnagijiri a lihellisfup- 
plicum : and in this refpect this meeting and confultation was called 
the court of requefls, as the court of audience and faculties are 
called courts, albeit they hold no plea of controverfie. 

Thofe which in former times would have this court to be a 
court of judicature, took their aime from a court in France, which 
is called curia eorum quos requejlaium, i.Jupplicatlonum palatii 77iagiJlros 
•vocant, apud quos caja eorwn tantum agitur^ qui regis o/Jcquiis dcputati^ 
vel pri'vihgio donatt funt : hujus curiae judices otlofunt. But others 
taking this jurifdit^ion to be too narrow, contend to have it extend 
to all caufes in equitic equnll with the chancery, and their decre€S 
to be abfolute and uncontrcllable. But neither of thefe are war- 
ranted by law, as (liall evidently appear. 

In the reign of H. 8. the mailers of requeits thought (as they 
intended) to Hrengthen their jurifdi6tion by coramifiion, to hear 
and determine caufes in equity. But thofe commiHions being 
not warranted by law (for no court of equity can be raifed 
by commifTion) foon vaniflied, for that it had neither a6l of 
parliament, nor prefcription time out of minde of man to efra- 
blifli it. 

* Mich. 40 & 41 Eiiz. In the court of cornmon pleas, upon 

the Inner Temple, about 16 El. * Tr. 40 El. in comrouni banco inter Stepney 
1157. See Hals Chront 8 H. 8. fc. 5= . a^rceth with the law. 

a bill 

Cap. 9. . The Court of Rcqilclls. jj^^ 

a bill exhibited in the court of rcqucfts againft Flood, for default 
of anfwer an attachment was awarded ;igaiiift I'lood uhdcr ll,<i 
privie lealc, to Stepney then flicrille of Carnarvon, who by iorce 
of the faid writ attache.! Flood, and would not let him go, untiii 
he had cntrcd into an obligation to the (lieriffe to appear before his 
majcflies coiinccll, in the court of rcquefts : upon which obligation 
the (lierilfe brought an a£lion of debt for default of appearance, 
and all this matter appeared in pleading. And it was adjudged 
upon folemne argument, that this which was called a court of re- 
quefts, or the white hall, was no court that had power of judicature, 
but all the proceedings thereupon were coram nofijudicey and the 
arreft of Flood was falfe imprilbnmcnt, fo as he might av'oi<l the 
bond by dures at the common law, without aide of the ftaturc of 
23 H. 6. ca. 10. 

The punifliment of perjur}' in the court of Whitehall by the 
flatutes of 33 H. 8. cap. 9. and 5 Eliz. cap. 9. doth not give it 
any jurifdiiftion of judicature, no more than the ftatutes that give 
againft a gaoler an aftion for an efcape, or puniflieth a gaoler of [ ng^ T 
his owne wrong for extortion, an officer of his own wrong fliall be 
punillied by the (latutes in that cafe provided, and yet the flatutes 
thereby make them no lawfull officers: for it is one thing to punifli, 
and another to give authority. So it was juflice in the parlia- 
ments to punifli perjury in the Whitehall, although the court were 
holden by ufurpation, and io before it appeareth to be by the 
judgement in Stepneys cafe. See Beverlyes cafe, lib. 4. 123, 124. 
and the cafe of the orphans of London, lib. 5. fo. 73. where it is 
called the court of requefts, taking the fame to be according to the 
originall inflitution. And as gold or filver may as currant money 
paflTe even with the proper artificer, though it hath too much allay, 
untill he hath tried it with the touchftone : even fo this nominative 
court may pafle with the learned as juftifiable in refpctft of the out- 
fide by vulgar allowance, untill he advif.-dly looketh into the roots, 
of it, and try it by the rule of law : as (to fay the truth) I my feif 
did: hwt errores ad fun principia refaiCycJl refeliere^ to bring errors. 
to their driit^ is to fee their laft. « 

The author of the book of diverfity of courts written in 21 H. 8, 
doth not fo much as mention any fuch court : nor the Doclor and 
Student who wrote in 23 H. 8. treating of matters of equity nevec 
rncntioneth any fuch court : nor in any of the reports of H. 8. or 
of any other before him, we finde any mention made of any fuch 
court Herein, as in all other things, we have dealt clearly and 
plainly, upon what authorities and reafons we have grounded 
our opinion : and when we undertook to write, we refolved to pub- 
lifli nothing ccnfcicntia^ which we (by Gods fpeciall Error, qui now 
grace) have performed, without any fpark of contradidion, or rs'ift'tur, appro* 
refpect of any private whatfoever : that charge ever founding in mine ''*'"''• 
eare» that is given to all that take upon the«Ti to write, Ne quid falfum Rcgula. 
auUant^ ne quid inum non audcant. And although the law be I'uch 
i'S wc have fet down ; yet in refpc«ft of the continuance that it 
hath had by permiffion, and of the number of decrees therein 
had, it were worthy of the wifdome of a parliaircnt, both for the efta- 
hlilhment oi things for the time pad, and for fome certaine pro«« 
villon with reafonable limuations (if fo It (hall be thought convc- 

I 3 nicni 

The Court of Common Pleas. Cap. 10=. 

nient to that high court) for the time to come : et Jic Uberavi «?;/» 
mam tneam. 


CAP. X. 

The Court of Common Pleas> 

Mi>. Cart, 
ca. II. 

Braftonllb. 3. 
fo. 105. b. 

* Ufc fup. 
fo. loS. a. 

Britton fo. ji, 
cap. 2. U lib. 1. 
cap. 54, 

Sec the fecond ^ 
part of thelnftl- 

tutis Mag. Cart, 
cap II. 
Vid. 17 E. 3. 50 
^are incUmbra- 
<vitt and in the 
chapter of the 
kings bench 
here before. 
'* Vid. fup. 
pa-79. ' 

BY the flatute of Magna Carta, cap. ii. it is provided, Q^ucii 
cojnmunia placita nonfequantur curiam mflratn^ fed tencantur he* 
ccrto. Hahet rex etiam curiam^ et jujiiciarios in banco rejidentes^ 
qui cognofcunt de omnibus placitis^ de quibus authritateyn habent cogno- 
fcendi^ et Jine warranto jurifdiSiionem non habe7it nee ccercio7iem. Et 
pauIo pojl. Sunt etiam alii jujiiciarii * ferpetuiy certo Icco i-e/iden-' 
teSf Jicut in banco ^ locuelas omnes de quibus habent luarrantum termi- 
nantesy qui o/nnes juri/'di^ionem habere incipiunt preftitofacramento. 

Oujire ceo voilons q. jujiices demorgent continuahnent a Wejlm, ou ai- 
lors la^ ou nous voudrons ordeiner^ a pleader comunes pleas folonq; ceo que 
nous les manderons per nous breifes ; i£int que des parols deduces devant 
eux per nous breifes eyent record. 

Out of thefe, three things are to be pbferved : firft what fliall be 
faid commimia placita. They are not called coinmunia placita in re- 
fpeft of the perfons, but in refpecfl of the quality of the pleas. Re- 
gularly pleas are divided into pleas of the crown, and into common 
or civill pleas. Pleas of the crowne are treafon and felony, and mif- 
prifion of treafon and felony, &:c. This court is the lock and the 
key of the common law in common pleas, for herein are reall aftions^ 
>vhereupon fines and recoveries (the common aflurances of the 
realm) do pafTe, and all other reall aftions by originall writs are 
to be determined, and alfo of all common pleas mixt or per- 
' fonall : in divers of which, as it appeareth before in the chapter of 
the Kings Bench, this court and the kings bench have a concurrent 
. authority. 

• Robert Parning the kings ferjeant at law 24 July 14 E. 3. wai- 
createdchiefjuftice of England, in which office he remained until 
the 15 of December following, and then he was made lord trea- 
furer of England ; in which office he continued untill the 15 year 
of E. 3. when he was made lord chancelour of England : ^nd while 
he was lord chancelour, he would come and fit in this court being 
the lock and key of the common law, as is afqrefaid : and there 
debate matters in law of greateft difficulty, as it appeareth in the re- 
port of the year of 17 E. II. 14.23. 37.&C. knowingafluredly,,^ 
that he that knowes not the common law, can never rightly judge of 
matters in equity : whereof at that time very few matters were de- 
pending before him in chancery. 

2. Thefe words of Bra6lon, \^Jlne ivarranto jurifdiilionem non ha- 
bent,'] are \vell expounded by Britton, that that warrant is by the 
kings writs, folonq\ ceo que nous les manderons per 7ious breifes. So as 
regularly this court cannot hold any common plea in any a6tion, 
reall, perfonall, or mixt, but by writ out of the chancery, and re- 
tcrnable into this court. 

3. That 

Cap. 10. The Court of Common Pleas. 9f 

3. That in certain cafes thrs court may hold plea by bUl without 
any writ iti the chancery, as for or againft any officer, miniftcr, or 
privileilged perfon of this court. 

Alfo this court without any xvrit may upon a fugeeftion <rrant 8 R.t. Attach- 
prohibitions to keep, as well tcniporail as ecdcrialticaU courts, mrnt fyr prohib. 
within their bounds and jiirifdicf^ion, without any originall or plea ^'j^"'^"^ 
depending : for the common i-uv which in tliofe cafcb is a prohibi- j^ £ ^ '.'ftjon 
tion ot it felt ftands in ftcad of an originall, whereof there be infi- fur left At. 34. 
nite prefidents in this court. And Sir Thomas Egcrton lord chan^ T 100 1 
celour Mich. 7 Jac. regis called Fleming chief juftice and all the 
judges of the kings bench, and Tanfeild chief baron, and the reft 
of the barons of the exchequer, of whom the chanceiour demanded 
whether the court of common pleas had authority to grant any pro- 
hibition without writ of att^ichment or plea depending : who upon 
mature deliberation unanimouily refolved, that this court might 
grant prohibitions upon fuggeftions without any writ of attachment 
or plea depending for the reafon aforefaid, and according to a mul- 
titude of prefidents. The jufticcs of the common pleas were not 
called, becaufe they had often refolved the point before. So as now 
this point concerning the jurifdiction of this court for granting of 
prohibitions upon fuggeftions, where there is neither writ of at- 
tachment, nor pica depending, is in peace, being refolved by the 
juliices of the bench and of the common pleas, and by the barons 
of the exchequer. 

4. This court upon an adjournment upon a forein voucher may ^'^^ ^^^ fccond 
hold plea likewlfe upon other foreign pleas, and upon generail ^^j^ ^^ 'n'^Jigfo 
bartardy, Ne uvques accoupk in loiall matrimony^ ^c. for none but points.* * 
the kings courts, and no inferiour court ftiall write to the bifhop. 
bo likcwife upon ancient demefne pleaded, &c. 

Tile chiete juftlce of the common pleas is created by letters pa- ' 

tents. Rex^ &V. Sciatis qmd co?ijUtu:mus diledum ct fiddcm E. C, 
militfm, capitalem jujiiciarium * de comiiium banco. Habendum quam- 
diu noh'ts placuerit^ cum vadiis et feodit nb antiqrio dcbitis ct con/ue-^ * ^^ ^^^^ '^* 
/;■/. In cujus rei tcjiimonium lias lit eras nojiras fieri fuimus patenter,. j^nTcT^ft^rth* 
lejtc^ Cl/f. cornmpn pica* 

And each of the juftices of this court hath letters pr tents. Sciatis there holden. 
quod confiituimui dikilum tt filelem P. ^. mill tern unum jufiiciariorum 
noftrorum de communi banco, (jfc. But none can be conllituted judge 
of this court un!e(re'he be ferjeant at law of the degree of the coife, 
and yet in the letters patents to them made, they are not named fcr- 

The jurifdidion of this court is generail, and extendeth through^ 
out all England. 

^ For the antiquity of this court fee before in the chapter of the Seethe fecond 
kings bench adjoining thereunto, 6 E. 3. where a fine was levied piitofthe JnAi- 
in this court 6 K. i. and in 39 E. 3. a plea in this court in i H. 3. tutes,Mag.c»rt. 
And that I may fpcak once for all thejuftices of the kings bench, or 5*£ -."52. 
«f this court of the com.non bench, that they obfcrve the ancient 39 e.%. 24. 
rule of bw, Nemo duobus utatur ofiuiisy for none of them can take x* £■ 3- ^*^ !• 
any other office, or any fee, or reward but of the king only. And 
it were behoovcfuU to the common-wealth and advancement of juf- 
tice and right, and preferment of well dcfcrving men, if the like 
courfe were holden concerning all offices, as well ecclefiafticall as 
tcmporall and civiJl; and that no man following the example of the 

I 4 reverend 

communl bmco, 
r)r. 146. Rotel 
in f hefaur. 

ic(5 The Court of Common Pleas. Cap. 10. 

reverend judges flionld enjoy two offices. For feverall offices werq 
never inftitiited to be ufed by one man. 
Term. Tr'n. Thejurifdiition of this court for punifliment of their officers and 

anno 19 E. I. in minifters. Petrus de LuffenJiam indiFiatus quod ipfe in curia hie a die 
SanHi Hillarii in i 5 dies anno regni regis nunc \ g, falfo et maliciofe de~ 
levit adjornationeni ejufdem ejfoin* ad diem ilium intrati de com'' Rotel. 
pro Roberto AttehaJe de South- Luff enha7n petente ct Radidph. de Kirhehy 
tenent^ de placito terre^ &fc. Et quejitus qualitcr fe velit inde acquietare^ 
dicit quod in nullo eji inde culpabilis^ et de hoc ponit fe fuper jurani de 
fociis in cur'' hie. Et qui jurati dicunt fu[)er facrafncntum fuum^ quod 
prcedi8ui Radulfhus pr^ediBis die etannofuitin cur^ hie, et dixit prt^e- 
di^o Retro quod pradiBum ejp>'inum fuit adjornat^ et pra-diSius Petrus 
intravit infra bancum et rotulos de ejJoift\ et cum pcrpendijfet quod le off. 
fuit apj:ofitum molivit ipfe policem fuum et indefrotavitfuper le ajf. quoifq 
illudfere omn'ino delevit utfc faceret prcedi^uin Robertwn aniifffe breve 
fuum^ CaV. Jdeo confderat^ ef quod pradiSlus Petrus com7mttitur gaol(£ 
de Ficete cufiodiend^ ptr uninn annum et unmn diem pro falfitate et de- 
r 1 01 1 ceptione prcediSlis^ et tunc red'imtndus pi voluntate domini regis ^^c. Ei 

fciend' qmd liber atus fuit gaolce die Mercurii prox ante fejiuyn Ban(Rt:e 
■ Margaretce virginis hoc anno., ^jdc. Pofiea die Veneris prox* ante fef urn 
.Sandce Margaretce virginis anno 20 deliberatus efi pradi^us Petrus^ et 
inhibitum ef ei, qucd nihil habct n'lfi vefes pendejites in dorfo, admit ti fur 
ad difnid^ marc, per 10 li. JVil. de Okeham, iia tMnen quodfi ad plus 
fuficiat, £sxV. Ju/iic' refervant cis potefatem, &'<r. 
Mich. 19 E. I. in Et quia prctdi^us "Johannes de Vpton in cur'' hie"* recognovit quod hoc 
banco rot. 191. anjio in lefate ccncefjit quod pradi^iam defaltam -emitteret., et pro ilia 
Northampton. concefjionc reccpit 20s. in atifumpno^ ct poftea ad pr^d'ifiam tertia-m fep- 
ti?nanam Sandi Michaelis idem jihannes remifit pradiHam defaham^ 
per quain pradi£iiis IVilllehnus recuperaffe potuit pr a did urn ten in 
fraudem et deceptionem pnedidi Willielmi ; ideo ipfe pro falftate pr^- 
dida committitur gaol^ de Fleet commoraturus per annum et diem, ^c. 
'» W. I. cap. 29. pgy fcrmam '^ fiatuti., C^c. Po/lea pofi annum et diem^ ^c. pradidus 
fohamies ^-enit et dtl'iheratus ejl fccundum fatutum., ^c. et inhib'itum efi 
ei., Csfc. et finiv'it pro una jnarca. 
Eodpm rot. nu. g^,;^ cxaminatur f'raus de brevi in jur'' per vic^ retorn'' iermin^ Trin' 

et per quenda-m al'iuni panellum ejufdem mutatmii et contrefedufsn^ unde 
ccnirefador per jui^ ejl cnlpabilis., et adjudicatur gaola de Fleet e per an- 
num et diem. Et quia fcriptor ejufdem brevis licet defalfiiate et mali- 
tla non fuit particeps^ nee aliquid mali feciffe putavit^ ^c. Cufiodia- 
iiir, Cf/f . et fnem fecit per unam mar cam. 
Hil. ao E. Et quia Rogcrus de Langeport attornatus eJi mal^ fanue, et dcfati- 
^^nco rot, 109. p-^-y// (.^y'' . ijgQ committ'itur paoLe. ^c. Et cuaRtis rotulis de indida- 
mentis attornatorum^ CfJV. compertum ef quod idem Rogerus indidatus fuit, 
quod ipfe fuit converfans in cancell et focius Ada de Pontefrado., qui 
fafavit fg'illum domini regis, et falfa brevia ccmpojuit., t^c. Et qua- 
Jitus qualiter fe velit acquietare^ dicit qucd clericus ef^ et non potefi in 
curia hie domino regi inde refpondere. Et quia nidlus or dinar ins 
ipfum petit, i^c. iicc ipfe Roger us^ aliter fe velit inde ac quiet are, ideo 
ipfe cominittitur gaoL-e quoufque^ &r. Et tn'itt'itur ad turrim Lon- 
don, 'iffc. 

The officers of this court are many, viz. Cufos hrevium, tres pro- 
thonotar'ii^ three prothonotaries : clericus luan antortmi., clerk of the 
warrants : clericus argenti regis, clerke of the kings lilver : quatuor 
£xigc:idarii^ exigeiirers : quaiuordeccm fjlazariiy fiiazers : clericus ju- 


zio. London. 

North ainplon. 

Cap. II. The Court of Exchequer. loi 

taforum^ clerk of the juries : claicus ejffoniofvm^ clerk of the c{- 
foignfs: claicus utJa^ariorum^ clerkc ot the outlawries: this be- 
longs to tlic oflice of the attorny geuerall, who cxercifcih it by de- 

\i\ form/er times great abufes have been by attornies of this 
court, bv I'uing out a judiciall proces without any originall : which 
when it hath been found out, it hath bccne leverely punilhed ; 
for many inconveniences thereupon doe follow. For example, in 
20 H. 6. an attorny of the common place had made a capias di- 20 H. 6. 37. a. 
rc£^ed to the IheritVe of York, whereof there was no originall ; at ^^- '• ^*P- ^9* 
which day of the retorne an attachment was awarded by the courft 
againrt the attorny to anfwer the deceipt, whereupon he was taken 
aftd examined, and confelled it, and thereupon by the court he was 
committed to the Fleer, imprifoned for a moneth, and that his 
name fliould be drawn out of the roll of attornies, and never 
fliould be attorny either in this court or any other, and thereunto 
he was fworne. Note the feverity of this judgement doth (hew the 
heynoufneHe of the offence. 

An attorny fued out an hahae facias fcijinam againfl one, by L ^^^ J 

force whereof the true tenant was put out of his freehold, where 17 E. 3. 51, 52. 

in truth there was no record of any recovery: the party grieved ^"^'^^f J^^^J*^ 

brought an action of deceit a^j^ainft the attornv, and recovered da- ^""' '^ ^JaX.^ 
" . • •/- J ' cnme, and tne 

mages, and the attcrny impnloned. party grieved 

Mttr.ornniluin quod inagijier Johannes Lovell qui fuit cvjlos rotulorum may have his 
€t brevium domini regis de banco per manus Juas proprias Uberavit Jo- a^ '^n- 
hanni Bacon clerico de mandato domini r^gis in hac verba. Ediuardus^ P^fch.aoE. i.ia 
i^c, Dikdo ckrico fuo Jchanni Lcve'l falutcm. Cum commijerimus *><'n<:o, roc poft. 
ddc^o clerico n'^Jito jfohanni Bacon cujiod'' rofu/oruvt et brevium nojiro- 
mm de banco ; habendum qunm din nobis placuerit : vobis mandamus 
quod eidem Johanni rotulos et brevia prredifla qua Junt in cnjlodia vejlra 
ex commijfione mjira per chirographum inde intet vos et ip/um conficiend* 
fine dilaticne liberetis cujlcd' in forma pr^tdi^a. T. me ipfo apud Ste- 
benheth 1 7 Ai^rilis anno re^ni nojiri 20. quo pradi^us Johannes libeiavit di^o Johanni Bacon rotulos 
',/ brevia de termhto San^i MichacUs atino i 7, ujque hunc terminum^ et 
jimiliter rotulos de ejfon*. Et fcripta dedi^a et fufpe^a cum tallcis de- 
fiiff, una cum compotis dedi^\ ac etiam 160 nof Jinium^ duas ligulas 
de reccrdisfine die, f/ 14 certificaC epifccpcrum. 



The Court of Exchequer. ^^St^^:^: 

ill the plurall 

T number. 

HE authority of this court is of originall jurifdiclion without ' Of ancient 

any commiflion. Of this court Brlt'ton fpesking in the kings -'»"« ^^n '^^* 

perfon faith. » rdons nous que a ncus efchekers a ireflm' et at- ^J^'r- 

lors eymt nous ^ ireafcrers^ et nous ^ banns illonques jurijdidion et re-*'iv-.t..r 

ord dc cJwfcs que touchent lour office a oier et determiner touts Irs cavfts pa^tc 1. ca. 4. 

que touchrnt nous debts^ et auxi a ncus fees, et les incident chofts^ Jans See the 14 chir. 

ies quctix tiels cho/ts ne fntrront ejire tries, et ^uc ilx eycnt pvwer a co- °^j^JS ^ ''* 

i03 The Court of Exchequer. Cap. 1 1. 

nufter Je dtiles que Ion dolt a nous dettors per ou nous fnijjons pMs toff 
aprocJier a nre. dett. 
£t fo. 29. b. d £n ^Yoit des purprejlures vodons nous que h noifances foienf otifies 

aux co/iages des purprejiours^ et les fujfeiables Jo'ient prife in no/ire maine 
a la value per an fott inrolk^ et folcnque le difcretions des ireafors et des 
harons de nous efchequers foicnt arenes a fee farm a eux que plnis voUmt 

* Et fo. 38. b. « Et fott auxi cnquls de nos cuflomes de quirs et de leynes qui les ount 

coilles, et comhien les coillcurs ouni bien fnffert de paffer defachs de leyne 
fauns payer aflame^ et comhien eit valu la cuftome chefcun au en chfcun 
manner e de cuficme a nous apur tenant et ceux articles foient ier mines a 
noflre efchchr felonc la difcretion de nos barons. 

See the Cuftumer of Normandy, cap. ^. & 6. touching the ex- 
chequer there, both of another jurifdi<5^on, and of other judges, 
and officers, then our court of exchequn Js. 
Mirror ca. 1. Lrfchehr tfi un place quane que flenteni ifi ordeine pur k pren le roj 

^; '^'^ ^'Jfi. ^^ ^^"^ cJiivaliers. 2 Clerks^ on 2 homesy Ires, font affignes pur oier et 
paee^ u J, e- tcr?n'iner ks torts faUs al toy et n fa cor one en droit de ces fies ei ces fran- 
chrfes^ n les accounts des bayliffs^ et dei r^xcivors de deniers le roy et des 
adminiftrators de ces hiens per la vicice de une foveraign que eft trca- 
frer de Jlfigliterre. Les chivaliers fololen* eftre appeles deuk ba- 
rons pur a^erer les amerciaments de counties^ et des barons et des tenants 
ccuniies ei baronies cy que md ne fuit affcre forfq^te per ces piers* 

A cellc place efioii afjl^ne wi feaU ove garden pur fait e ent acquit* 
tance de chefci.n payment que a'voir le xohit^ et de fealer les bres. et les 
efireti fouth cere -Oerte iffanf di celle plact pur le provt le roy* En cellc 
place Jtnt auxi cJt amber I cities et plujors ctuters minif&'s que ne touch my 
molt a la ley^^ 
I:t cvi. I. § ^. Ordeine fuit lefchcquci in mariner ccnie enfuij}^ et Ics paines pecuniels 

* Til is was in ^^f countees et barons en cetieuiy et auxi de tenants, counties et * baronies 
rcfpecl ot the te- difniendies et que ceux amerciaments fuijjent afered per les barons dei 
nure, tor a!I efchequer. et que kin envoafi les e/lreets de lour amerciaments al efchequer 
earldomes and -^ ^ •; /> V , • ; W . 

baronies were ''" f' ^i'^fal/pnt amercies en la court le rp' 

holden JncapirK. Oufler ceo nul com?non plea ne foit deformes tcnris en lejcneqner en- 

CO E. 3. air. I2C. counter la forme de la grand charter. 

26 afl". 37. g Fleta'(for Brac^on trcateth not of this conrt) faith. Babet et 

f Artie, fup. Ycx curiam funm et jufticiarios fugs refidentcs adfcaccctvium. And this 

"S^E Tstlt de ^^ ^^^ ^ ^^^'^^- '" ^""•" 

Roreland. ^ ^ This court is divided into two parts, viz. judiciall accounts, cal- 

toE. i.reg. 187. Itdi fcaccarium computoru?n, and into the receipt of the exchequer. 

^ FJeta li. 2. ^ Una origo utriufque fcaccarii, fuperioris fcilicei, et inferioris^fed quic- 

.a. 2. quid in fuperiori computatur, in inferiori folvitur . 

*» Ockam. Before we obferve any thing out of thefe ancient authors and 

a6ls of parliament, it fliall be neceflary to fet down the great of- 

f 104. 1 ficers, the judges, and other officers and minifters of this court, as 

they be at this day. 

Fifus m one lenfe is taken for the exchequer, properly it is 

fporta a hamper, wherein the confifcations, feffements, and other 

moneys of tlie king were carried into the treafury. 

TheofficenofihU I. Do7ninus thefaurarins AnglicT : which office he hath at this day 

court. by the delivery of a white ftaffe, at the kings will and pleafure. 

Rot.par. i5R,2. In former times he had this great office by delivery of the keys 

lui. 6. & 7. ^golden keys) of the treafury ; when trea'fure failed, the white 

Cap. II. The Court of Exchequer. 104 

Ibffe fervcd to reft him upon it, or to drive away Importunate 

2. Vu/hvrarius/caecarii anciently c^MtA arcarius ah arcay and this Vide rot. pa. 
office he hath by letters patents. For both thofc offices he hath \l^^^>^^^^ '' 
365. 1, fees, robes out of the wardrop 1 5. 1. 7. s. 8.d. in toto 380. 1. " ' 
7.S. 8.d. • Hugo Patcfluill was firft trcafurer of the exchequer, • M»th. Parii 
and ;3SttTfummus tftrfaurarius. jj^ "• J. P*- 39 x< 

Cancfllariuj fcnccarU, that keepeth the feal. See PI. com. 321. j^m Vx34. 
Lefchequer ad ckancehr ct feale ; et let ires, vfuall in U chancery in lef- And fo wasTho. 
chequer^ ^c. font pluis ^nci<nt que le rc^ijlcr. See of the chancelor Wimondham, 
of the exchequer hereafter in the court of the exchequer chamber, anno dom. 1258. 

Cc^pi talis baro et barones alii. 50 H. 3. 

Subthefaurarius fcaccarii^ anciently called locum tencm thefaurarii. 
Pctrus de IViVcbye locum tenens thefaurarii^ anno 30 E. i. et plures alii: 
he nameth the two praifers of all the goods fcifed or not cuftomed, 
and ordereth whether the party ftiall have been at the price or not, 
he appointed the fteward, cook and butler for the provifion of the 
Itar- chamber : he in the vacancy of the treafurer doth all things in 
the receipt, that the treafurer doth. In the flatute of 39 EJ. 
ca. 7. and 43 El. in the fubfidy of the clergy he is called under- 
treaiurer of England. Concerning this matter I finde of record 
this writ following. 

Edwnrdui rex AugVut et dominus Hibernl^ baronihus et camerariis Rof, brevlum. 
[vis de fcaccario fuo^ falutem. Quum pro eo quod * 'venerabilis pater W, 20 £• 2. 
archiepifcopus Ebcrum nuper thefnurarius fcaccarii pri^di^i^ circa diverfa * Archbifhop 
negotia in partihus Lorealibus ejl occupntus, quo minus intendcre poffit ad feufurcr of the 
ia qn^ ad oficium illud in ^ diSlo fcaccario pertinent cxercenda^ conjli- ^^^ equer. ^ 
tuerimus vcncrahllem patrem fohannem Wintonienfetn epifcopum * teneiitem Nota m difto 
Ucvm thefaurarii fcaccarii pradi^l^ quoufque de officio illo aliter duximus ^*^^*'''°- 
iyrdinandum^ percipiendo in eodem officio (dum illud fc ttnuerit ) feodum 
confuctum^ •* prout in Uteris noflris patentibus pr^fato epifcopo inde con- 
fe^is plenius continetur. Vobis mandamus quod ipfum epifcopum ad offi- of'^jT'^^T*'^ 
cium admittatii et ei in his qiuie ad qfficium predi^um pcrtineant inten- granted by Ict^. 
datis in forma pr^edida, Tejle Edvjardo flio nofro p'imogenito cuflode ters patents. 
%egni nofiri^ apud Hereford fexto die Novembris, anno regni nojlri vice- Cuftos rcgni 

The office and duty of the lord treafurer of England doth appear vid. the lord 
by his oath, which (landeth upon e:ght articles. chancdori oath 

1. That well and truly he Ihali ferve the king and his people in '"/he chapter 
the office of treafurer. t> v y of the Chancery. 

2. That he fliall doe right to all manner of people, poor and rich, 
of fuch things as concern his office. 

3. The kings treafure he fhall truly keep and difpend. 

4. He fhrJl tnily counfell the king. 

5. The kings councell he fliall * Tayn and keep. • Lain is an old 

^ 6. That he fliall neither know nor fuffer the kings hurt, nor his French word, to 
diflieriting, nor that the rights of the crown be decreafed by any *^***^** 
mean, as far forth as he may let it. 

7. And if he may not let it, lie fliall make knowledge thereof 
clearly and exprcfly to the king with his true device and counfell. 

8. And he fhall doe and purchafe the kings profit in all that he 
may rcafonably doe : which in effe<fl agreeth with the oath of the 
lord chancelor, as you may read iibifupra. 


^ Un-lcr-trea- 


Forma conftitu. 
tionis thefau- 
rarii Anglias. 

Vid. Rot. Car- 
tarum anno 
»7H. 3. 

HIl. 25 El. co- 
ram baronibus. 

Note the ftatute 
fpeaketh of the 
chancelor and 
treafurcr gene- 
rally which is 
iotendcd of the 
treafurer of 
ling! and, in dig- 
mori fenju. 
See lib. i. fo. 11. 
Sir William Pel- 
hams cafe. 
* Note hereby it 
clearly appearcth 
that the trea- 
Airer and barons 
of the exchequer 
are keepers of 
the records j'jdi- 
cia'l of the ex- 
cheq'ier. Vide 
9 ^- v 

The Court of Exchequer. Cap. 1 1 • 

Imprimis poji Jigillationem patentium de illo officio vocctur in cur'* 
cancellarice^ coram domino cancellario genilus fiexis faciifacr amentum, ut 
fuperius fcribitur, et deinde Jigillatum erit breve regis direBum baronibus 
et camer arils de/caccario de attendenc* recitans effeHum di^arum lite 
varum patentium. Et inde recejjerit didus dominus cancellarius ad cu- 
riam fcaccarii et ibidem (dido thefaurai io Jiante) ad barram legan- 
tur liters patentes pradid' et Ji7niliter pr^didum bre. et vocatus eji 
idem thcfaurarius ad Iccum fuuni per diHwn dominum cancellarium ac- 
cipiens cejfflim, et liberatce erunt tunc et ibideju claves officii thcfaurarii, 
et cmnes officiarii Pub fe recedent cum ipfo thefaurario in thefamum et 
dantes ei attcndenc\ This we have traafcribed de verbo in verbum 
hi eijdem -verbis. 

The lord treafurer of England hathalfo granted to him by letters 
patents under the great feal, thefaurariam fcaccarii regis ^AvgUce, 
which of ancient time was a diftinft office by itfelf. The office 
of the treafurer of the exchequer did principally take care of the 
green wax, fees, and tenures, as it is faid; he hath alfo with tlie ba- 
rons the cuftody of records as by the infuing record appears. 

In an information of intrufion in the exchequer againft Rrace, 
judgment was given for t!ie queen againft Brace, who brought a 
writ of error direfted to the lord chancelor and lord treafurer, and 
they made a warrant under their feals to the barons to bring the 
record before them. And Manwood chief baron obje6led againd 
both the writ and the warrant, for that the ftatute of 31 E. 3. 
c. 12. that giveth this writ of error is general), that the lord 
chancelor and lord treafurer fliall caufe to come before them the 
record arid procefTe of the exchequer, and in as much as no fpe- 
ciaH writ was given by the ftatute, therefore the writ ought to be 
direfted to them that have the keeping of the record according 
to the courfe of the common law. * And for that the treafurer 
of the exchequer and barons have the . keeping of the records of 
the exchequer, tlie writ of error ought to have been directed to 
therii, and that the lord chancelor and lord treafurer of England 
are judges in this cafe, and not the treafurer of the exchequer. And 
upon fearch of prefidents all the writs of error from the making of 
the ftatute untiil 7 Eliz. were direfled to the treafurer of the exche- 
quer, and barons to bring the record before the lord chancelor and 
lord treafurer: but in 7 El. and fi nee divers writs have been di- 
reiled as this writ was, &c. But it \^as refolved by the lord chan- 
celor, lord treafurer, and the two chief juftices affiftants, that the 
writ ouo-ht to be directed to the treafurer of the exchequer and 
barons that have the record in their cuftody according to the an- 
cient courfe and prefidents, and thereupon this writ abated. 

Here four things are to be obferved. i. That albeit the barons, 
as hath been laid, are the fole judges, yet the treafurer of the ex- 
chequer is jovned with them in keeping of the records, whereof 
tiie barons are judges, for they are parcell of the kings treafure. 
^, That writs of error are to be'dire(5led to them that have the cuf- 
tody of the record wherein any judgment is given ; as a writ of er- 
ror to reverfe a judgment in the court of common pleas, ftiall be 
directed ♦:o the chief juftice only who hath the cuftody of the body 
of the record wherein the judgment is given, but the originall writ 
and warrant of atturny are not in his cuftody. 3. That albeit the 
lord treafurer 15 alfo treafurer of the exchequer, yet the writ of er- 

C^p. 1 1 . The Court of Exchequer. 

TOT 13 direacd to him as trcaftircr of the exchcriiicr, and the baron?, 
to have the record before hitnfelf as trt-afuroT of England and the 
chancelor. 4. That at the makirii; of the ftatute of 31 E. 3. 
that givcth the writ of trrror, the offices of trcafiircr ot En^'hnd 
and the tiraliircr of the exchequtr were in feverall hands as by 
the writs of error brouglit foon after appcarcth. Before the faid 
Itatiite of 31 E. 3. the errors in the exchequer were fomctlmes 
examined in parliament, and fometinies before commilfioners by 
force of the kings writ under the great feal.^ 

It was petitioned in parliament in 22 E. 3. nil. 25. that erro- 
neous judgments in the exchequer might be reverted in the kings 
bench, but it fuccecded not. 

Vide term. Pafch 14 E. 3. a writ dire6^ed to the treafurer and 
barons calling to them fuch juftices as they ihould think fit, to 
examine the record, &c. of the judgem.ent in the exchequer, &c. 
for the countelTe of Kent againft the abbot of Ramfey, upon 
which judgement the abbot brought his writ of error. Fitzherbert 
for another piiipofe abridgeth the cafe, XW.fcirefac. 122. 

Hil. II E. 3. in Vbro rubco in fcac carlo fo. 322. the cafe of John 
de Lecellre chamberhine of the exchequer, a notable prefident to 
the like efFecfl. Lege^ ^uia optime. 

Nota in the aft of 31 E. 3. that is called the councell cham- 
ber, which now is called the exchequer chamber, becaufe there 
was the alTembly of all the judges being the kings councell for de- 
ciding of matters in law. 

The chamberlaines of the exchequer. For thefe officers fee in 
the firft part of the Inft. lib. 2. cap. Grand' Serjeanty, feft. 153. 
the office mentioned in the letters patents is, rfficium unlus came- 
rariorum de recept* fcaccarii^ Jive officium un'ms earner ariori:m de fcac- 
carioy and is granted for term of life to be exercifed by him or his 
deputy. To this office belong the office of one of the dorekcep- 
crs of the receipt. 

Contrarotulator. Of fo great regard is the right ufe of the pipe, 
as there is a controller thereof, which no other office in this 
court hath. And the chancelour of the exchequer is the con- 
troller of the pipe. 

Rememeratores. 3. viz. regit^ thefmirarii^ et primorum fru^uum. 

Clericus pipe. Of this officer fomewhat is necelTary to be faid. 
The originall inftitution of this court was taken from a conduit 
or conveyance of water into a ciflcrne : for as water is conveyed 
from many fountains and fprings by a pipe into a cifterne of a 
honfe, and from thence into the leverall offices of the fame : "^ '' 
golden and filver ftrcam is drawne from feverallcourts as fc 
of juftice, and other fprings of revenue reduced and collcftril i;i> 
one pipe, and by that conveyed into the ciftern of his majellies rr 
ccipt, &c. Therefore all accounts and debts to the king are deli- 
vered and collcfted out of the offices of the khigs remembrancer, 
and treafurers remembrancer, &c. and drawn down and put in 
rharge in the pij>e. So as whatfoever is in charge in tliis roll, 
or pipe, is faid in law to be duly in ciiarge. The clerk of the 
pil>e in the patent of his office, is called InyroJJator magm rot. in 

Alfothc treafurers remembrancer is by his office to char 
enter from tlie originall into the an.iuall, otherwifc called ilij gr^at 




iic. Vid ,R > 
nu. !) 
Vitm de !i ; 
cafe. Klich. \-yii 
34 E. I. coram 
Kogcro ! H 
ham f< al 
ticiariis, -. .. 


I part of the la- 
ftitutcs, cap. 
Grand Icrjaiity, 
icct. ic-j. 

See the ftat nf 
5R. z. c. 14. 
ftar. I. 2^ .^-i 
p. 60. 

D:.- - 


Duly In chaise. 
The roll of re- 

5 Auditors. 
I H. 7. 4. a. 
Sir Rich. Lees 

Quamdiu fc be- 
ne geflerit. 


Green wax. 

4a E. 3. cap. 9. 
fU. 4. cap. 3. 

4 H. 5. cap. 2. 

The Cdiirf of Exchequer. Cap. 1 1. 

roll, all fee-farme rents and other rents whatfoever upon leafes of 
lands within the fiirvey of this court : and whatfoever is in charge 
in this roll is faid to be duly in charge, Alfo he ought to keep an- 
other roll, commonly called a roll of reverfions, as of grants of 
lands and offices in taile, for life or years a^/que compoto, aut all- 
quid inde reddendo^ to the end, as often as need fhall require, 
writs may be granted to enquire whether the iflue be fpent, the lefTee 
dead, &C. 

There be five auditors of the kings revenues within the furvey 
of this court, and their office is to take the accounts of the kings 
receivers, Iheriffs, efcheators, colle^lors, and cuftomers, and to aun^ 
dite and perfect them. But an auditor cannot allow any licenfe or 
grant, for the auditor knoweth not whether the licenfe or grant be 
good or no : but upon petition itought to be allowed by the barons 
who know the law, et Jic dejimilibus. Neither can the auditor put 
any thing in charge, for his office is (as hath been faid) but to take 
and audite accouiits: for the words of his patent be, Concejfwim B, 
officium unius auditorum fcaccarli nojlri quod I. S. nuper hahuit et cccu- 
pavit : hahejidwn et tenendum prcedicium officium pfirfato B. quam din 
fe bene gejferit in eodan per fe 'vel fiifficient'' deput* fuum. Nay, though 
the barons do order upon fight of any record or evidence, that any 
thing (hall be put in charge, this is ufed to be done to bring it in 
queftion, but it is not in law accounted to be duly in charge (un- 
till it be recovered, received, and accounted for of record : for it is 
not judicially done, becaufe it may be done in the abfence of the 
party. Neither can any auditor make Tifupa; but of that that hath 
been received and accounted for before. 

Auditor of the prefts take and audite the accounts of Ireland, 
Barwick, the mint, and of any money imprefted to any man. 

Auditor of the receipts. Firil, he is a kinde of filacer, for he 
fileth the tellers bils and entreth them. Secondly, he is a remem- 
brancer, for he giveth to the lord treafurer a certificate of the 
money received the week before. Thirdly, he is an auditor, for he 
maketh debentures to every teller before they pay any money, and 
taketh and auditeth their accounts. Befides all thefe he keepeth. 
the black book of receipts, and the lord treafurers key of the trea- 
fury, and feeth every tellers money locked up in the new trca- 

Forififec' oppofitor^ the foreln oppofer, he doth oppofe all fheriffes 
and bailiffs of liberties of their green wax; under thefe words 
[green wax] are included fines, iflues, and amerciaments, recogni- 
zances for the peace, recognizances for appearance in any other 
court, and good behaviour, and fuch like incertainties certified in 
feveral ftreats into the office of the lord treafurers remembrancer, 
who delivereth the fame to the clerk of the extreats fo be put into 
proces. And becaufe the extreats annexed to the writ are under a 
feale in green wax, they are vulgarly called greenwax. But felons 
goods, waifes, ftrayes, outlawes goods, deodands, and fuch like, are 
within the llieriffes accounts, with which the efcheator was wont 
to deale. 

Clericus extraaorum, clerk of the extreats, his office is partlv 
touched before. 

Here it may be demanded what the meaning of thefe words (of 

cftreats that fowne not) is. The aa of 4 H. 5. cap. 2. being ori- 

§ ginall 

Cap. 1 1 . The Court of Exchequer. i 07 

in Vrcnch, is m frof^iio itiicmatty Da cjireati uwvt fovrcnn^ 

1 by turnine the two linglc c-y into a "jo was firft made /o7i;/^«, 

iid afterwaitis^^'wf. Kow /cr-vrnn properly fignificth to be re- 

nrmbrtxt, and fuch cafuahics, as arc not to be remembred run 

not in demand, that is, art: not levinble. 

Clnuui mftilvrum maketh a roll of all fiich fummes as the See the flat, of 
(heriffe upon proces for the grcenwax rctorn nihil, and delivereth RotH.verf. i- 
tlut roll into the oHice of the lord treafurers remembrancer to have "^"** 
o:ecution done of it for the king. See the ftaiute of 5 R. 2. 
in. 13. flat. I. concerning thoferetorns of w/Z'/V and the difchargc 
• >f. 
ricttsplacitomm^ clerk of the pleas. In this mans office all the 
,^ and priviledged perfons in this court arc to fue and be fued. 
Wi ..iis matter more hereafter. 

Marffchcdius, marfliall. To this officer the court committeth the Stat, de 51 H 3. 
keeping of the kings debtora during the fitting of the term, to the ^^^^ut. 5. 
end they may provide to pay the kings debts, or elfe to be further 
imprifoned. Such offices as are found vhtute officii, and brought 
into the exchequer, are delivered to him, to be delivered over to the 
lord treafurers remembrancer. He alfo appointeth a\iditors to 
fherifftj, cfcheators, cuftomers, and colleAors for taking their ac- 

CUricus fummonitionum, clerk of the fummons. 

Deputati camerarii duo, called under-chamberlains of the exche- 
quer: they cleave the tallies written by tlie clerk of the tallies, 
and read the fame, that the clerk of the pell and the controUei-s 
thereof may fee their entries be true : they alfo fearch for all re- 
cords in the treafury. 

Sccufidarii reniemoratcris regis duo. 

Secumlarii rcmemoratoris thjaurarii duo, 

Secundarii pip-^ duo. 

In the other part of the exchequer which is called the receipt. Rq^ ^\^^^^ 
Concerning the courfe of the receipt of the exchequer, fee Rot. 39 E. 3. nicrnb. 
Clauf. 39 E. 3. m. s6. 26. 

The two chamberiaines. Of the dutv of thefe officers fee in Firft part of 
the firft part of the Inftitutes. Vide 51" H. 3. ftat. 5. 14 E. 3. the inftir. 
cap. 14. ^*^- '5?- 

CUricus talUarum, There be two kind of tailes .or tallies, the L ^^^ J 
one is called a talley of * debt, and the other is calltd a tally of a , r. 2. cap <. 
* reward; of both which you may read in divers afts of par- b^^fj g 

i»^f"^- . 31H.8. cap.iV.' 

Clericus peUis, clerk of the pc!e. His duty is to enter every tel- 2 t. 6. cap 4 
lers bill into a roll, called/^//// recepiorum. His duty alfo is to en- 
ter in another roll payments called ptllis exitus ; and by wliat war- 
rant the payment was made. 

Numaatorcs, 4 tellers. The office of a teller confifteth in four 
duties. I. To receive monies due to the king. 2. To give to 
the clerk pelUs receptorvm a bill thereof, whereby he may be charg- 
ed. 3. To pay to all perfons monies by warrint of the auditor 
of the receipt. 4. They make yearly and weekly books of th' ir 
receipts and payments, which they deliver to the lord ireafurer. 

Jun^}^<-" talliorum duo. 

D ' rtnii duo* 

CV. . . .,r. 


Pari. 5 k. 2. 
ca. i€. ftat.^. 

Vid. in the of- 
fice of the kings 
Mich. 26 H. 6. 
rot. 46. 

The duties of 
the kings re- 

The duties of 
the lord trea- 
fiirers remem- 

See hereafter in 

the chapter oi 

the court of 


1 R, z. cap. 5. 

[ 109] 

The Court of Exchequer, Cap. 1 1 , 

Talrellara or dinar ii 4. 

S crib a duo, 

Ojiciarii declmarum et primitiartim. 

•By the ftatute of 5 R. 2, for making a commlffion in the ex- 
chequer the clerk (liall not take for his fee above 1 s. only ; nor 
for a record of niji prius with tlie writ but 2 s. only, as afore this 
time was wont to be done and ufed. 

See in the end of a book containing many little books, as Fitz- 
herbertsjuftice of peace. Carta feod\ ^c, the fees of the officers 
of the exchequer. 

But it fnall be neceflary to fet down the d'Jties of the kings re- 
membrancer, and of the lord treafurers remembrancer. 

The office of the kings remembrancer confifteth principally in 
eight duties. His firft is to write proccs againft colleftors of cuf- 
tomes, fubfidies, and fifteens. 2. He entreth in his office all re- 
cognizances before the barons, and taketh bonds for any of the 
kings debts, for obferving of orders, or for appearances, and his 
duty is to make out proces upon every of ,them. 3. He maketh 
proces upon informations upon penall llatutes, all which informa- 
tions are entred in his office. 4. He maketh bills of compofition 
upon inform.ations upon penall ftatutes, 5. He taketh the fialment 
of debts and entreth them. 6. The clerk of the liar-chamber cer- 
lifieth into his office the fines fet in the flar-chamber ; this officer 
maketh a record thereof, and draweth them down into the pipe. 
7. Into this office ought to be delivered to be fafely kept, all af- 
furances, conveyances, and evidences, whereby any lands, tenements, 
hereditaments, or other things are granted to the king. 8. Alfo 
there is a court of equity holden in the exchequer chamber by 
Englifii bill : all the bils and proceedings thereupon are entred in 
th-e office of this officer. See the ftatute of 5 R. 2. cap. 14. flat. i. 

The office of the lord treafurers remembrancer principally con- 
fifteth in eight duties, i. His duty is to preferve the broad- 
fpreading and fruitfull tree of tenures fo many wayes beneficiall to 
the crown, and the jurifdiftion of the court of wards, which fome- 
times were within the furvev of this court, but fince taken from 
it. He maketh out proces for the kings revenue by reafon of the 
tenures of the king (wards excepted.) 2. He maketh proces of 
fieri fac* and extent for debts due to the king either in the pipe, or 
with the auditors. If a clerk of this court make any writ of pro- 
ces for a debt which hath been paid and the tallies thereof joyned 
and allowed, he fliall lofe his office, and be imprifoned untill he 
hath fatisfied the party fo much as by the difcretion of the trea- 
furer and barons he is endamaged. 3. He maketh proces againil all 
Iheriffs, efcheators, receivers, and bayliffs, to bring them to ac- 
count. 4. To make an entry of record, whereby it appeareth 
whether Iheriffs and other accountants pay their proffers due at 
Eafter and Michaelmas. 5. He maketh another entry of record, 
to the end it may be known whether ftieritfs and other accoun- 
tants keep their dayes of prefixion. 6. The green-wax is certified 
into his office, and are by him delivered to the clerk of the ef- 
treats, as hath been faid. 7. There ought to be brought into this 
office all the accounts of cuftomers, controllers, and all other ac- 
counts to make thereof in this office an entrv of record, to avoid 


Cap. 11. The Court of Exchequer. 109 

all delay and concCTlmcnt in the kings bufmcs. 8. See the fiatute 
of J R. 2. cap. 14. ftat. I. 

Conccrnliij> tlielc ofhcers there h an excellent law mnde in <; R. 2. Rot. PjrI. 5R.2. 
\v!icrebv it is ena^cd. [that from henceforth no baron of the ex- "u. 105. and 
rlicquer, clerk of the pipe, remembrancer, oppofer, controller, ^°^J|^^y "> ^ 
clerk of the pleas, and clerk of the foreign uiminons, auditor, or 
other chief oftictr of the exchequer be made, unlede he be well 
learned in the law, or otherwife very fkilfull in the courfes and 
liKifTts of the exchequer.] Here is the heartftring of this court, 
for albeit the lawes and orders thereof be mod excellent, yet the 
benefit thereof confifb in good and Ikilfull ofhcers and minillers. 

Thefe things being undcrftood, let us now perufe our ancient 
aiuhors, for out of the old fields muft come the new corne. 

Eyrnt mus treaforets. Hereby it appeareth being in the plurall Rof.parl. 3H.6. 
number, that there be two treasurers, whereof wc have fpoken be- '^"•47- 
fore. There is alfo a treafurer of the kings chamber, ih/aurarius 
camera regis, which is not accountable in the exchequer, but to 
the king himfelf. If the king apj^oint fome whom he trufts to 
take his account, this is cdeemed lo be done by the king himfelf, 
Qui ftr aliumfacit^ fer ipfum facne <viddur. 

Et nous barons illonques jitrifdiclion. * All judieiall proceedings 2S H. 6. 11, i.-, 
according to law in the excliequer, are coram baronibus, and not ro- ^^' *• ^*- 9- 
ram thfaiirario et baronibus : but the court of equity holdtn in the *' I' *° ' ^' 
exchequer chamber, is holden before the lord treafurer, chancelor. The court of 
and barons. Of this court we have given a touch before, and fjt^ify it the 
fhall treat more hereafter. Note the judicial! proceedings before 'J^^^'?""'* 
the barons are in rols, but they are not numbred as in other s-e hereafter 

•-^oyrtS. ^ cap.13. pa. iiS. 

The oath of the barons of the exchequer exprefling their duties Rols not num- 
confifteth upon ten articles, i. That well and truly he (hall ferve ^""ed. 
in the othce of baron of the kings exchequer. 2. 'That truly he l^'/f/^ "-^ ^^' 
Ihall charge and difcharge all manner of people, as well poor as SeeTheftatuteof 
rich. 3. That for highnelFe nor for riches, nor for hatred, nor 20 E. 3. cap. 2. 
eftate of no manner of perfon or perfons, nor for any deed, gift, 
nor promife of any perfon the which is made to him, nor by craft, 
nor by ingen he Ihall let the kings right. 4. Nor none other per- 
fons right he fhall difturbe, let or refpite contrary to the lawes of 
the land. 5. Nor the kings debts he fliall put in refpite, where 
that they may goodly be levied. 6. That the kings need he fliall 
fpeed before all others. 7. That neither for gift, wages, nor good 
deed, he Ihall • layne, dillurbe, nor let the profit or reafonable ad- * Laynr, ;\ to 

vantage of the king in the advantage of any other perfon, nor of -~- - 

himfelf. 8. That nothing he (hall take of any perfon for to do 
v.Tong or right, to delay or to deliver, or to delay the people thai 
have to doe before him ; but as haftily as he may them goodly to 
deliver without hurt of the king, and having no regard to any pro- 
fit that might thereof to him be therein, he (hall make to be de- 
livered. 9. Where he may know any wrong or prejudice to hr 
done to the king, he rtiall put and do all his power and ddigence 
that to redrcfTe, and if he may not do it, that he tell it to the king: 
or to ihem of his councell, which may make relation to the king, 
if he may not come to him. 10. The kings councell he fliall keep 
and layne in all things. 

IV. Inst. K In 

conccalc or hlde» 

Tiiall by record. 

Mic. 27 Si 28 
El. in fcaccar. 

inrer Leroigne 
et Savil. 

33 H. 6. 19. 5i> 


For trbll by re- 
cords, vid, Mich. 
32 & 33 E. I. 
coram Rpge. 
Robertas ar- 
chiep. Cant. Sec. 
Hil. 8 E. 2. co- 
r^m regc, Corn- 
wall. Waltcrus 
epifc. Exon, &c. 

22 E. 3. nu. 17. 

51 E. 3. nu. 27. 

5 R. 2. cap. 9. 
C'oiufe of the 
exchequer a- 
gaintt law, &:z. 

* That Is, by his 
atrorny : and 
therefore the ad- 
mittance of an 
attorny in thefe 
cafes, is not ex 
gratia curia (as 
is faid in the 
cotnuion plead - 
i III;) but ex debit 

The Court of Exchequer. Cap. 11. 

In the exchequer at the fiiit of the khig in an information of 
intrufion of lands, Wherein iflue is joyned, which may be tried by 
the country ; yet where the king hath a direct record or records for 
the manifeilation of his title, the kings attorny may pray that the- 
triall may be by records, whereof you may reade a notable cafe, 
Mich. 27 & 28 Eliz. in the exchequer where the cafe was, that in 
an information of intiufion info certain lands, &c. againft Savil^ 
the iiTue was whether certain lands belonged to a houfe or no, and 
upon a tryall by record judgement v.^as given againft Savil. Af- 
terwards Savil the defendant died, and his fonne and heir brought 
a writ of error in the exchequer chamber, where it was holden, 
that this kinde of tryall by records was before the ftatute of 33 H, 
8, cap. 39, the words whereof be, That all and every triall and 
trials of all manner of fuits, bils, plaints, informations, &c. and 
iflues in the court of exchequer, fliall be made and tried by due 
examination of witneile, writings, proofes, or by fiich other wayes 
or means, as by the court of exchequer fhall be thought expedient j 
and that every fuch judgement, decree or decrees, fliall be good, 
perfe^l, and in full ftrength, force, and efiecl in law, to all intents, 
conftrudlions and purpofes. And yet, notwithftanding the gene- 
rality of thefe words, if a judgement be given upon a triall by re- 
cord, a writ of error doth lie tliereupon ; bccaufe, as to that point, 
this aft is but in afiirmance of the common law. 

It was petitioned in parliament, that remedy might be found, 
that no accountant in the exchequer do run in iflues before he be 
warned. The kings anfwer was, the proces therein fliall be firft a 
'venirefGc\ then a dijiringns^ and after a writ out of the chancery 
to the treafurer and barons. 

It was alfo petitioned in parliament, that fuch as owe to the 
king may upon their account be allowed of all fuch lones, as be 
due unto them, or to any of his anceftors: whereunto the king 
anfwered, the treafurer and barons fliall make allowance of due 

So great care was taken by the court of exchequer (which is the 
centre of the kings revenue and profit) that no man might fue or 
plead for their difcharge of any debts, account, or other demand, 
without having expreite commandement by writ or letter of the 
great feal. But by the ftatute of 5 R. 2. it ap)peared, that the parties 
ought to have been received thereunto, according to the law, with- 
out any fuch writ or letter : and that the obtaining of fuch writs 
or letters was to the great difquietnefle, mifchiefe, and delay of the 
parties impeached, and no advantage to the king. And where be- 
fore that time no plea could be allowed in the exchequer by r.t- 
torny, but in proper perfon : by the faid adit it is ordained that the 
barons of the exchequer fliall have full power to hear every anfwer 
of every demand made in the fame : fo that every perfon that is im- 
peached or impeachable of any caufe by himfelf or by * any perfon, 
fliall be received in the exchequer, to plead, {\\^^ and have his rea- 
fonable difcharge without carrying or fuing any writ or other com- 
mandement vvhatfoever. So as by this a6t both thefe mifchiefs are 
provided for. And out of this acft this generall conchifion may 
be juftly collected, that fuch courfe of the exchequer as tendeth 
to the difquietncife, mifchiefe, and delay of the fubjeft, and no 
advantage t© the king, is againft law, and ought not to be allowed. 


Cap. II. The Court of Exchequer. no 

And it is to he obfcrvcil, that Britton doth joyn in ihls claufe, the 
treafuriTs nnd barons. 

• And into the exchequer chamber or the likr, all cafes of * remport rtzh 

greareit difficulty in the kinj;s bench or common picas, &c. are^ ^^1^1[*'^1'q]'\ ^ 

and of ancient time liavc been adjourned and there debated, ar- j'andi caff/**^" 

giR'd, and rcfolvcd by all the judges of England and barons of the yu/lkiani Uc 

exchequer. See more of this court i/i/ray cap. 13. pagiii. 121. audurtex furfttr. 

tts dtbanco^cum 
haronihus fcaccarii ct dom'.ni regis fiielihus i/llc rfjtdentihui colloquiumy ^c. Rot. trtfcaccarjo de Crnvtar i . 
Ft. Ctrm^c c«ram jufi'u^ itincuJitidus afud Turr'nn London, an. 4 E. I. Rot. Clauf. 13 E. i. injrj. 
f>. tzt. //./. 32 E. 1. coraiK ngf TVignrn. Mic. 6 E. X. in commutii banco Defpenceri cafe. Mlc. \\, 
£. 6. coram rege, cafe of the burj,cires ot" Great Varmouth. 

-^ atr €t terminer touts la caufes que touchont nous debts. Here debts t E 4.' 7 
are taken for all mariner of duties due to the king. ^ E. 4! 14. b. 

Et auxi a nous fees. Here the tenures of the king (wherof we 16. b. 
have fpoken before) are exprefled. And albeit there be many te- 
nures of the king both in eapiie, and by knights fervice ot fome 
honor or man nor, &c. yet thtre be many nw)re by the error or neg- 
ligence of follicitors, by fning out of licences or pardons of aliena- 
tion, where in troth the mannors or lands were not holden of the 
king in caplte. 

But Mich. 39 & 40 Eliz. it was refolved by all the judges of Mich. 395: 40 
England, when I was attorny generall : that if a man purchafe a • 'a-^l^ '**'' '* 
licenfe or pardon, and after being called into the exchequer do "r 'ml 
plead the licenfe or pardon, that neither the purchafe nor pleading ^ 
is any conclufion, but the tenure may afterwards upon another 
alienation be traverfed or denied. For tiie words of the licenfe or 
pardon be, Qu<€ de nobis tenentur in capite (ut diciiur;) for neither the 
charge in this cafe is direi5l being grounded upon a licenfe or par- 
don, nor the plea; for the licenfe or pardon is pleaded, as it is, ut 
dicitur : and therefore neither the one nor the other doth conclude. 
But if he in his plea doth by exprelfe words (with a bene et vaum 46 E. 3. 33. 
eft, ^c.J confcfTe a tenure, in capite, and In difcharge thereof plead 19 AIT. 35*. 
the pardon or iicenle in difcharge thereof, there is a conclufion 7 E- 6. Edoppcl, 
wrought: and fo are the books to be intended: which refolution ^q'^V'o^^' 
I heard and obfcrved, and have reported it for advancement of 
truth and right. 

Concernfng liceiifes of alienation, and the fliort pleading of li- '8 Jac. op. 
cenfes and pardons, there is a profitable ftatute made anno i8 Jac. i J3c.rsg.c3.26. 
fegis, and another tf/7/;o i Jac. cap. 26. concerning orders of the ex- 

Et let incident chofes fauns hs qftcux, &c. Qjiando lex aliquid alietti 
cmcedit, concedae vldetur et id fine quo res ipfa ejfe non potefi, 

Et que ils eyent power a conuficr des dttts quektuloit a nous det tors per 20 E. 3. Icy 52. 
5* nous pttijfons pluis'toft approcher a noftre dctt. This is the ancient S H. 5. 4. 
prerogative of the king as it appeareth in our books. 

The king brought an action of debt in this court agninfl a prior 38 AfT. p. 
alien. The prior had proces againll A whodcteined goods from him, 
without whjch he could not aufwer the king. A came and claimed 
the ^-nxls as his tithe'^ as parfon of D, the piior claimed the tirhcs 
of S ; and thereupon iflfue taken for the king triable in 
' ;der. 

\i he that is in execution will in this court confclTe himfelf J R- »• cap. i»* 
debtor to the Jeing, whrre he is no debtor of record, he (lull be 

K. 2, remanded 


in original. 

-Anno i6 E. 4. 

rot. 13. '_ 

Nota herein five 


I. Per wanu- 


1. Commijimus. 

3. Cufiodlam. 

4. Yielding a 

5. Provtf'-f qucd 
Ji quis alius plus 

dare 'voluerit. 

Nota Britton 

lup. ^ eux que 

pluis •voilent 


See 27 H. 8. 

cap. II. 

Rot. pat. 5H. 6. 


IT H. 6. 28. b. 
S H. 6. 34. Br. 

Leafe 71. 
See for this word 
Vide 27 H. 8. 
ca. I. a fpeciall 
provifo for the 
JO. treafurer. 
*32H. 6. ca. 5. 5.^ 
4 H. 4. cap. 18. 
Dier fo. ;5o3. 

S?e in the chap- 
ter of the Court 
vf Wards. 
* Vid.pi. CO'. 

The Court of Exchequer. Cap. 1 1. 

remanded to the firfl prifon, and after the creditor be fatisfied, then 
to be committed to the Fleet untill he hath paid the fumme con- 

Solcnq; le djfcretion dts treaforers et harons^ ^'V. Jlicnis events a 
fearme a eux que finis voilent doner. To the end that no lands in 
tlie kings hands, which ought to be to the kings profit, fliould be 
without a farraor that (liould yeild a rent to the king, the treafurer 
in certain cafes, and with certain cautions ought to mak? a warrant 
to the great feal for demifing thereof, that is to fay, not only of 
lands extended, of lands during the vacation of any abbey, and of 
lands feifed for an alienation without llcenfe, and before 23 H. 8. 
of land in ward, or the like upon uncertainties, but alfo of the 
demeans of the crown out of leafe, &c. 

The leafe will be beft exprelTed by an example, firft of lands ex- 
tended. Rex omnibus ad quos, ^c. Jalutem. Scinf's quod per nianu- 
captionem IValteii Mathezu de TVeftyri' in com'' Mid. yruman, et Nich. 
Whitfeild de eadein, yeoman. Convtiijimus Rico. Fofler^ cujlodiam 
unius Jliopce, 30 acr^ terra ^ 3 acr^ prati^ et 4 acr^ paflwce cum 
pertvi' in Stanford in com* Lincoln^ qua fuerunt Silvani Scuthorpe^ 
qua in manus regis Edzcardi nupcr regis Anglice tertii fro 138 //. 
6 J. % d. in quihus idem Silvanus prefato nupcr regi ienehaf^ fi'^fi^t 
fuerunt ., et in manibus no/iris ea de caufa adhuc exifiunt. Ha- 
bendum a fcjio SanSli MicJiaelis anno regni nofiri 1 3 ufque finem I o 
annorum ex tunc proxime fequerC et plenarie co'nplendorujji. Reddendo 
inde nobis per annum in cujrodia pradida 25 .r, prout nobis rcfponfum ejly 
ad fefia PafcL-e^ et Sandi MichaeV per a quale s portiones. Provifo 
femper quod f aliquis alius dare voluerit de incremento per annum pro cuf- 
todia pradiflajine fraude vel malo iyigenio^ quod tunc did us Richardus 
taiitum pro eaJem folvere teneatur^ Ji cujlodiam prcediclam habere volue- 
rit. In cujus rei\ ^c. Tefe R. apud li'ejim. 7 die Novemb. anno 
regni nofiri decimo fexto. 

Note by many prefidents the lord treafurer m.ay make a war- 
rant to grant the lands extended, either for yeari, or quam diu in 
manibus nofris fore contigerit. 

The lord treafurer made a warrant to the lord chancelour to de- 
mife to John Pempons land parcell of the dutchy ot Cornwall for 
the tearm of fifteen years in the like form of words as the before 
recited leafe was. This leafe was pleaded in 11 H. 6^ and though 
the leafe v/as by the words of commifmusy and commifimus ciftodiam 
terra^ ^c. yet in pleading the lelfee pleaded a demife of the land 
it felf, and there allowed to be good, which Is worthy of obfervation. 

Vide in originaV infcaccario de anno 21 & 1Z H. 7. rot. 4. et ibid. 
23 H. 7. rot. 12. many fuch leafes. But of ancient time, as it 
appeareth by Britton, both the treafurer and barons did demife, 
&c. * Letters patents of the alnnge fliall paflTe only by the lord 
treafurers warrant. And the gift of the office of the efcheator be- 
long to his office. Vide in the chapter of the Court of Ef- 

By the flatiites of 8 H. 6. cap. 16. and 18 H. 6. cap. 6. it 
appeareth that the chancelor or treafurer had power to make leafes 
in certain cafes of wards lands : but that is altered by the flatute 
of 32 of H. 8. of eredion of the court of wards. * Note the 
Ifatute of 18 H. 6. ca. i. extends only to the kings warrant, and 
not to the warrant of the lord treafurer. 


Cap. II. The Court of Exchequer. 1 1 2 

♦ It is to be obfcrved, that when in any ad^ of parliament or other * Hit i8 E. u 
record the trcafurcr is named for demiling, or other intenneciling ^* V- nu. *»8. 
with any of the kings revenue, it is to be intended of the trtafurer 
of the cxche<^uer. 

Df nous ct'Jioifies de (juin (t Uynesy ^c, Wbvit thefe cu domes Second part of 
were appearctli in the lecond pnrt of the Inftttuteb, by the ftatute L^'rrV.d ^ATpra 
of confirmation cattarum, the laft branch, and the expofition upon cap. Pari. p.29. 
the fame, whereby it appeareth that the king had no ciiftonie but 
fuch as was granted to him by ail of parliament. 

Lrfcliequn eft un place quarre. U is fourfquare and the carpet that Mirror. 
frnietime lay ujion it had wrought in it the form of a chelTe board, Ockham. 
and thereupon it was called the exchequer : and about tiie end of 
the reign of £. i. this court was new built, and therefore in 2 £. 3. 
it was called the novel cfchcquer, and It was new built upon this » ^' 3« a^ 
cccafion. Both the parts of the efchequer were of an ancient fo'- P*""- 3 ' E- '. 
building, and weak ; fourfcore and one perfons (whereof the abbot ""* ''* 
of W'cltni' and forty ei^ht of his monkes were part) brake into 
tlie receipt, and feloniouny robbed the king of a hundred thoufand 
pounds, adilammim in^ftimahil:^ faith the record. Ail thefe foui- ^'ota, the mb- 
icore and one were indited of this felonv, and committed to the ''"y «>^f'»^' king 
tower of London, &c. and this was the occafion of the new build- 2!J^'*r"^T '* 
ing ot both tiicle parts of tlie elclicquer. tnablU. 

Qui folemait efi onkln fur le prc^e k roy. Here is a fliort, but an " 2 E. 3. 25. 
effe<5luall defcription of the jurildi^ftion of this court, that is, for J^^cry Sharlag* 
the profit of the king. This profit is cither immediate, or me- Scirc^af' ? ^"' 
diatc : * immediate, as of lands, rents, franchifes, hereditaments, 44E.3.27. Re* 
debts, duties, accounts, goods, chattels, and other profits, and be- gift. 187. b. 
nefits whaifoever due to the king. ^Mediate, as firft, the privi- I'rohibit. 38.tff. 
ledge of the officers, and * minifters of the court: for two things '^•'^ rot. par. ^ 
doe principally fupport the jurifdidion of a court, viz. the jurt \ jj' ^\""j ^ 
prefervation of the dignity of it, and the due attendance of the rot. par. 2 H. 4. 
officers and minifters of the fim.e to fue and be fued in this court. 101. Dat' tji ne. 
2. « By quo minus. 3. It extendeth (as hath been faid) to the ^'^ '»'<%«• 
debtor of the kings debtor. 4. To prifoners in this court to be ^^°^' ^5^*^^" ibid* 
fued here. 5. To accountants that have entred into their ac- i 3 h. 4, 3V. ' 
count, except ** colle«flors of difmes they (hall not be fued by bils, 8 H. 5. Ley* 6 6. 
neither if he be fued in any other court, ftiall he have the privi- 20 E. 3. Ley 52. 
ledge of this court. ' 3^ H. 6. 24, 

Ou dtux diivalicn^ et 2 derks^ ou 2 hemci kttres. 2. Chivalias be ^^o 
hereafter explained. 2 CUrks^ ou 2 homes kttres, the one is intended 2, e. 4. 44, 45* 
to be the baron of courfe, the other the clerk of the pipe. &c. 8 H. 6. 34. 

■f De fes fees ctfraucl.if.s. Of fees, that is tenures, whereof we 36 ^-^-^^.li. 5. 
have fpoken before. Franchifes, bein^ flowers of the crown, are [ ^\ »^>on(Mr 
notorious and known. ^e^cafc. u H. 7- 

Et les accountsy <^c. All accounts to the king ought to be made b Stat. de Rut- 

upon oath, and it is beft for the king to have the accounts to be l-«nd. 10 E. i 

taken in this court, for accounts taken by commiflion are little for * Rcg'jJJ" 'S? 

'' F. N.B. 90. K 

Information ue 
intrnfjon ou trant. & 117, c. terrar taile. Vid. 32 H. ?. cap. 39. 16 £li«. Dier 328. ^ 14 E- 3- 
brev. 7S9. 20 E. 3. Ley 52. 2 H. 4. 9. 8 H, 5. 6. 10. 8 H. 5. Ley 66. 11 H. 7. a6. IN* 
Com. 322. Lib. 6. fo\. 18. «• J R. 3. cap. 14. 5 R. 2. cap. 10. ftat. i. the barons (hall hear, 
Ac. without any writ, letter or commandment 4 H. 4. rap. 9. 7 H. 4. cap. 11. concerning com - 
miffioni. 13 Eliz.cap.9. Sewer?. 14 E. 7. cap. ti. Weights 13 R. ». cap. a. No rtcognitana 
or fcondin doubJc. r "^ ^ f • 7 r Ifll 

K t the 

113 '^^.^ Court of Exchequer, Cap. 1 1 , 

e Stat, de Rut- the kings benefit. <^ The keeper of the wardrobe is to make his 

land, lo E. I. account once in the year in the exchequer. *" Once in the year the 

f Ro. par. treafurer of Ireland fliall account in the exchequer of England. 

2 1 E. I. rot. 3. g rpj^^ accounts of the exchequer to be more fliortiy heard, niade, 
g 5 R. 2. ca.n- anfi inorofied, &c. 

P Rot. par. h The treafurers of the kings chamber are only accountable to 

3 H. 6. nu. 47. ti^g king, and not in this court of exchequer, hut yet the king, by 

the advice of fome whom he may trufl in fecret doth take account 
thereof, as before is fa id. 

s8 H. ".nu.iio. ^/i^i? rccordum et procejjurn contra Petriem de Rivalles alias Fetrum de 
Or'iall^ tfie/aurarium et earner arlimi, regis fotius Anglia et Hihernia,^ ei 
cujiodcm omnium for eft arum ^ et omnium tortiiutji mojis de compoto reddit* 
de oficlls p'csdlHh^ et de judiclo contra ipfuvi reddlto per dffaltam^ 
quia venire recufavlt^ nlffalvo regis conduciu, quod rex denegavlt^ ^'^'-^fi 
infolltu'/n et In debit urn. 

Per le vleiu de un foreralgfi que efi treafurer Dengllterre. Of this 
great officer we have fpoken before. 

Le 2 chivallers fololent ee. z barons^ ^c. And herewith agreeth 

Bra£Von lib. 3. Brafton, Comltcs vero 'uel barones nonftmt amerclandl^ nl/i per pares fuos 

to. lib. b. feamdum modum delUlL et hoc per bar ones de fcaccarlo vel coram 

See the 2 part of -^ ' -f ^ 

thelnlL Mag. ''^g^^ , , r • 1 1 1 • 

Cart. ca. 14. -^^ eel place Jont auxt chamber lems^ et plujors auters rmnijiers^ que ne 

touch my molt a la ley. Hereof we have fpoken before. 
Artie fup. Cart. Nul common plea nefolt dlformes ienus in lefchequer encontcr leform del 
ubi fupra. Stat, grand charter. Upon this a6t four f-^verall opinions have been con- 
deRotland. ceived. * I. That this court might originally have holden plea of 

*°P^'c'm'^2oo. ''^11 common pleas ; and this they think to prove by the title of 
Glanvils book, which taking it altogether is this, Tra^atus de leglbus, 
^c. tempore Henrici 2. ccjnpofitm^ jifiltice gulernacula tenente illuflri 
viro Ranulfho de Glanvllla^ juris regjii et antlquarum conjuetudlnum eo 
tempore perlflfimo^ et illas fclum le^rs continet et confuetudlnes^ fe- 
cundum quns placiiatur in curia j'egls ad fcaccarlum coram juftlclarlls ubi- 
cunque fuerlnt. 2. Others think that at the making of Magna 
Carta, the court of the exchequer was parcel of the kings bench, 
whicl) they infer upon the words of this ac'l, No common plea (liall 
be holden in the efchequer againft the great charter, in which 
charter curia nofira is onlv intended of the kings bench. 3. That 
in Magna Carta, to which this ftatiite refers, there is no reftraint, 
and therefore this fiatute of artlc' fuper cartas refiraineth not. 
4. That the ordinance of Rutland is no ftatute, but made by the 
king for the order of this court, in the fecond part of the Infti- 
tutes, in the expofition of Magna Carta, cap 11. we have fpoken 
nothing of this matter, but thought good to referre it to this ac1: 
being his proper place. 

As to the firft : it ap])eareth by the faid ancient authors, and by 
the authority, of our books, that the ir.ftitution and jurifdiclion of 
this court have been only for the kin^^s bufmefle and profit, &c. 
as hath been faid. For the title of Glanvik bock: firft, it was 
never of hi^ own making, for he would never have given himfelfe 
fuch high and fuperjative titles, as lllufri vlro jwis regni^ ^c. eo, 
tempore perltlffimo. s. He that added the title fpeaketh of three 
courts, viz. I. /« curia regis. 2. Ad fcaccarlum. 3. Coram jujilclarlis 
Ghnv. Jib. 9. uhlcunque fuerlnt. For the firft, viz. In curia regis, he intendeth 
cap, i:. &c. juflice in elre^, ^c. for example, Inqulrentur purprefurce vel in capl- 
tall curla^ -vel coram jifilclis regis ad tales inqrnfitlones faclend' In dl^ 


Cap! 1 1 . The Court of Exchequer. + 1 ' 3 

vnfftyreghi panes tranfniiJfM tcr juratam patria Jhx victnet^ 2. Ai 
Jcatcaiiumt this court he doth luentioii but once (that I remember) Lib. 7. cap. 10. 
ill all his hook in thcfe wonJs. Si veto <lomintn rex aliquam cufto' 
tiiam nUcui commt ferity tunc tltftinguitur utrum ci cujioiliam plmo jure 
cummljerit ita quoj nullum eum inde rrdt^ure cornpofun; oportat ad fcnc- 
cat turn, whicii agceeth with the originall inftitution and jiirii(li<ttioii [ II4 ] 
of tiie court concerning the profit of the king. 3. Cmmjujiidatlis 
uhtcunquc fun'tnt is the kin;ijs bench, whereof Glanvil was cliief 
jiul.'ce, and oi the pleas in that court is in clfcft the funi of hk 

As to the fecond : i. Glanvile who wrote in the reipjn of H. 2. 
doth (as harh been faid) name the exchequer as a diliint'l court 
for t\e accounts to be made to the king. 2. In the * black book • The author of 
of the exchequer dedicated to H. 2. of the obfervations of the ex- ^'''^ ^^^^ '» . 
chequer, it is faid, iV///// licetjiatutafcaccnrii infrin^crc^ I'cl as quwois ^^rl^nf^iiiin. 
temeritate rejxftnc^ habet in hoc commune cum ipfa donwii rc^ii curia, in ^,^ ^^J^ and an 
qua ipje in propria ptrj'ona jura d'ljccrnit^ nee recordationi nee Jcnt entity in orticcr of the 
eo latte licent alicui ccntradicerc Whereby it appears tiiat the kibgs exchcqucrcap, i. 
bench and exchequer were diilinft courts in the reign of H. 2. 

To the third, our (latute is intituled nrticuU fnper cart* that is, ar- 
ticles upon Mti^na Carta et Carta de Forrjia : to as the fenie of this 
acl is, that the exchequer fliould hold no common plea no more 
then the kings bench : for the form of the great charter is, Qwd 
communia placita mn fc quant ur curiam mjirain. Secondly, our If a - 
lute is but an aflirmance of the common law concerning theju- 
rifdi^lion of this court, and this doth exprelly and notably appear 
in the Regifter in thefe words. Rex thefaurar* et baronihus de fcac- Reg'f*. 1S7. b. 
cat io falute7n. Cum fceundum legem et confuetudinem regni nojiri com'- 
munia placita coram vobis ad fcaccarium prediH'' placitari non debeant^ 
nifi placita ilia nos vet aliquc?n minijirorrim nojirorum cjufdr^m feaccaril 
Jpecialitrr tangant, Ss'c. Here it is to be obfcrved that this writ of 
prohibition is not grounded upon the ftatute oi artic' fuper cart' or 
any other ftatute, but upon the common law and cufloir.e of 
the kiUgdome, which concerning the jurifdidion of this court 
doth in omnibus zgrct with our ancient authors and year-books, 
wherein you (hall obferve an admirable haniMJiiy and confent in fo 
nianv fuccellions of ages. 

This is a ftatute proved by the title thereof, and for that it is en- Stat.dcRotlmd. 
tred in the parliament roll, and in the Regifter 187. b. it is called 10 E. i. Vid. pi. 
Jlatutum de Roll and. . Com. 221. per 

Now it is good to know, liow the law commonly calle..! irfpondcat ^^^"•^"•R'^S"^ 
f'iperior, holdcth in this cotirt and in other courts, and firfl by the Rcjpon'deat Jape- 
records of this court, and tiien by a6f s of parliament. rlor. 

Mc/fiorand qud allccuto prcvfato Hllliclmo morantur nuper vic^ fuper ^"t' praccept' de 
Icratione 40. s, extra/1' in ma^no rotulo de anno 12 in kanc* fub nomine 1!!.'"'"° ^^"^' ^ 

r/ri;. ri ;• ^ » r' » r lr r, Hll. anno I4 E.'I. 

n illtam rlerlizan tmius coronatorum com Kane pro faljo returno. Idem cxparte icmem 
IViUiehrMs vie' die* fupcr facramentum fuum quod prafatus ll^illidmus rcgi« rot- 9. ia 
Herlizan non habct tcrr* lel ten'ta, bona, feu eatalla in balliia fua, nee i^*< 
habuit unde di^' denar' livari fojjint. Et quia ipfe coronator elc^us erat Ccrcaa/sr. 
p^r comitatum juxta formam Jlaiuti, t^c. it a quod in dcJeHu ejufdem coro^ 
r.alor* totus comitatus ut dehor et fupaior, or. habcant regi rrfpwuierey 
pr^cip^ nunc vie* quod de terris et tenementis hujvfmodi totius comitatus in 
baUixa fua firifac* pradi^* xL s. et cos habcat hie in cro. clauji 
Pa/larfufer pjoffrum jiium regi Jdveud\ Ai quern diem vie" non re- 

K 4 i^rn* 


a H. 6. cap. lo. 

The Court of Exchequer. Cap. 1 1, 

tori{ Irevc* LIfo Jiait alias in cro San£ll Johan' Baptijlte. For 
more prefidents in the exchequer of this kind, fee Mic. 17 R. 2, 
rot. Mic. 19 H. 8. rot. 4. Ehorum. Pafch. 30 FI. 8. rot. 3Q. 
Wiltef. Midi. 5 E. 6. rot. 130, &c. Stat, de 52 H. 3. de Jcac- 

How it holdeth in other courts. Vid. 11 E. 2. tit. Det. 172, 
where the flierifs be removable as in London for their infufnciency, 
refpondeatfuperlor^ that is, the maior and comminalty of London. 

45 E. 3. 9, 10. Prior datife et r ano^jeable fu^'er efchape^ r-]fpondeat 

fiiperiGr, 14. E. 4. Pur ivfiifficienry del bailie dun liber tie respondeat 

doynlmis lihettatis, Vid, 44 E. 3. 1 3. 50 E. 3. 5. 14 EL 4. 22. 

II H. 6. 52. 30 H. 6. 32. W. 2. cap. 2. 5"/ mn habeat ball- 

vus unde reddat^ redJnt fupericr. 

There is a generall itatute concerning all the courts of the king, 
worthy of obfervation in thefe words. 


//<?w, To the intent that better and more fure government 
be had within the courts of our lord the king for his profit, 
and eafe of his people, which have to purfue, and doe in the 
fame. It is ordained and eftablilhed that all the officers made 
by the kings letters patents royall within the faid courts, which 
have power and authority by vertue of their offices of old times 
accuftomcd, to appoint clerks and minifters within the fame 
courts, (hall be charged and fworn to appoint fuch clerks 
and minifters, for whom they will anfwer at their perilly 
which be fufficieiit, faithfull, and attending to thjit which pcr- 
tajneth to them in performance of the bufincllc, as well of the 
king as of his people, 

In the fame m.anner we have ordained in the right of the 
barons of the exchequer, and we have exprefly charged them 
ihem belongeth in our prcfcncc, that they {hall doe right and reafon to all our 
doing of right fubjcds, great and fmall, and that they (hall deliver the people 
and leofonui le- ^e^f^nablv and without delay of the bufmefle which they have 

j^a'.l proceedings. ^j,{. , •,•'^1 • luuj 

to doe before them, without undue tarrynig as hath been done 
in times paft. 

20 E. 3. ca.z, 

Hereby it ap- 
peareth that to 

Mich. 13. J3. In 
Banke h roy in 
8 H. 5.4. 45 E. 3. 
Decics tantuTTt. 




7 Jac. cap. 15. 

It was rcfolvec] in the cafe of auditor Povie, that if A be in - 
debted to B, and B is indebted to the king, that the king by his 
prerogative may levie his debt upon A : but this levying ought to 
be of an immediate, and not of a mediate debtor to the debtor of 
the king. As if A be indebted to B, and B to C, and C to the king, 
the king cannot levy his debt of A, for then it might be levied in 
infinitum^ quod rcprobatur itijure^ and this appeareth in our ])Ooks. 

For affignmcnt of debts made to the king, fee in my Reports. 

By ]ht fiatute of 7 Jac. no debt fliall be affigned to the king his 
heirs or fucceflbrs by or from any debtor or accountant to his ma- 
jefly, his heirs or fucceffors, other then fuch debts as did before " 
grow due origijially to the kings debtor. 

No obligation, recognizance or ftatute made forfaving harmlcfe 
or performance of covenants, & c. though it be forfeited, or for any 
caufe, other then a due debt, can be affigned to the king by any 
of his debtors. Thefe affignmcnts of debts to the king are not f^- 


Cap. II. The Court of Exchequer. 1T5 

voured in law when the kings immediate debtor is able to pay Iiir. 
debt ; for by ihe aflignment at the kings fuit the body, lands and 
goods of the debtor to the kings debtor are liable to the king, 
whereas at the fubjefts fuit, he could have had but his body 
on\v Uy capias a J /athfiicintfi\ or his goods only by Jieri fac\ or 
halt his lands and goods by elegit. By the ftatute of i R. 2. a i R. 2, ca. ix, 
penalty is provided for him who confefleth a debt to the king 
(that U not debtor to the king of record) to delay the execu- 
tion of others. 

The barons of the exchequer are the fo veralgn auditors of Eng- 
land, for if a man aiFign auditors to a bailif or receiver to account, * E' 3- »*. 
and the auditors will not allow juft and realbnable allowances but c*,nt'J' *'" 
commit the bailif or receiver to prifon, f\ich prifoner may have 8 E. 4.16. 
an originall writ oi ex parte talis returnable before the treafurer and F. N. B. 129. f. 
barons of the exchequer, &c. for his relief in that behalf. Rcgift. 137. 

Upon the accountant in the exchequer of B. Fulham the kings Rot. clauf. anno 
butler, he demanded allowance of certain parcels of wines given by + ^- 3- ">• »• 
the king to certain perfons by word of mouth without writing, aiid 
it was difallowed by the rule of the court. 

Upon the account in the exchequer of Richard Bury keeper of R'^f- cJ«u^- anno 
the wardrobe, he demanded allowance for certain veflels of gold ^ ^* 3- "^- '9' 
and filver and certain jewels given by the king w^ tenus to Ifabeil 
queen of England, and others to Philip queen of England confort 
of the king, d non allocatur^ by the like rule of the court: for 35H.8.Pncroj. 
the gifts by word in both thefe cafes are void, which with Peti- B.61. X4E. 4. 
lians cafe that foUoweth are good rules to eflablifli the law in ^' ^• 
a cafe wherein there hath been variety of opinions in our books. 

Hil. 6 E. 4. rot. 14. in fcaccario inter brevia in dorf. Petilians T 116 1 
cgfe. A waiTant under the fignet is not fufficient to iffue any 
trcafure of the king out of the receipt, but it muft be under the 
great or privy feal. 

If the barons doe not dlow unto an accountant before them Reglft. 192. a.b. 
fuch juft demands ?.s he maketh, he may have a writ De allocationc ^ ^93- 
facierttla^ dire(fled to the treafurer and barons commanding them to 
allow the fame. 

Of a Liberate y^r payment of a penfion or debt, ^c. 

^ A liberate is an originall writ ifTuing out of the chancery, and is 
dirc£led to fome officers that have of the kings mony in his hands to 
pay over a penfion, debt, or duty. And it is not called a liberate 
by reafon of any fuch word contained in the writ, (as for the mod 
part writs are) for the words be quod Jolvas oxfolvatis^ but it is fo 
named ab efftHu. But fuch a writ cannot be directed to the kings 
fermor to pay a penfion, &c. becaufe, though the ferm or rent be 
behind, yet it is not the kings tmtill it be paid, and all the writs in 
the Regifter are direded as is aforefaid to officers, as to the treafu- 
rer and chamberlain, to a cuftomer, &c. The form of the writ 
appeareth in the Regifter 192, 193. And there it appearcth that 
there be two kinds of writs of liberate^ one dormant or currant 
and continuall, and another hac rice and particular. And it is 
fometimps accompanied with a writ of allowance, as there you may 


1 1 6 Court of Accounts in the Exchequer. Cap. 1 2. 

Tf the officer have fufficient in his hands to pay, &c. at the time 
of the liberate delivered to him, he is become debtor (by adi of law) 
to the party, for which he may have an a^lion of debt : but after 
the liberate filed out, and before the delivery, the king mayNdif- 
charge the officer of the kings money in his hands. And if the 
king deceafe before the delivery of the liberate^ the officer hath no 
warrant to pay it. 

If the officer at the time of the delivery of the liberate have of the 
kings money to pay but part, and not the whole, the writ is no 
warrant to him to pay part. See 21 H. 6. tit. det. 43. 27 H. 6. 
9. 37 H. 6. 24, 25. 9 E. 4. 12. 14. I H. 7. 8. 2 H. 7. 9. 
F. N. B. 121. f. br. tit. Taile Jef chequer. 

Vid. Mag. Cart. cap. 22. Liberationem antlqmtiis Jlatut'*^ id ejly 
precium an tiq uitus fia tut urn . 

The courfe of the efchequer is, that as foon as a flierif or efchea- 
tor enter into his account for iffiies, amerciaments and mean profits, 
to mark upon his head O. 'Ni. which is as much as to fay, oneratur^ 
niji habeat fufficie7item cxonerationem, and prefently he is become the 
kings debtor, and a debet fet upon his head, and thereupon the 
parties peravaile are become debtors to the flierif or efcheator, and 
difcharged againft the king. 
DIer 7 EI. i-^t. The ancient courfe of the efchequer hath been, that if in an in- 
formation of intrufion into lands or tenements the defendant plead 
not guilty, he flial lofe thepoffieffion; and it is faid that the rea- 
fon of this courfe is, firfl for that regularly the kings title appear- 
eth of the record, and therefore the defendant may take knowledge 
thereof, and the rather for that in every information of intrufion it 
is fpecified of whofe pofieffions the lands, &c. were : but if the de- 
fendant plead not guilty, the kings learned counceil cannot know 
the defendants title, to provide to anfwer the fame, as the defen- 
dant may doe to the kings title. 

["7] CAP. XII, 


A Court to enquire of, and certifie unlaw- 
full and untrue Accounts in the Exchequer. 

6 H. 4. cap " 'T^HIS court fitteth by commiffion under the great feal by force 
See rot." pari. ^ -*' of the ftatute of 6 H. 4. dire6led and fent, together with the 
6 H. 4. nu. 59. tenour of the account, to the moftlawfiiU and difcreet perfons 

for the prmt i^ ^hg counties, where the accountants be officers, to enquire and 
certifie the profits which the fherifFs, efclieators, alnagers, con- 
trollers, and other the kings officers have received, &c. by them up- 
on their faid accounts deceitfully concealed, &c. and being attainN 
ed of the faid frauds and deceipts, they fliall forfeit treble the value, 
and their bodies to prifon, untill they have made fine and ranfome 
to the king, after the discretion of the judges. 

But (as hath been faid before) it is certain, that it is ever mod for 
the kings benefit that accounts be yearly taken in the exchequer, 


^.varveth from 
'ije record. 

Cap, 1 3. The Court, &c. in the Exchequer Chamber. 1 17 

nnd not bv commiflion : and to thnt end an ordinance was made ^'^^pP"' ""'^ 
in the parliament holdcu anno 2t K. i. in rhefe words: Dominus vidc'rot.paT)'. ^ 
tex viilt ft prard/^if, qrta^ tic (■ nfl in anno compo- .>{ r. ,. Nich. 

tui rnfi-onl^ et Hibcmirt ffv , /^//>, ct thrfau- dr Clcre the- 

uvlurn llhnnU reddantur ad Jcacca^ium AnAui-, ct ihid. audlan- f-urariui Hi- 
iw f€i' thefaurar' it bar ones fuos. ^/cr/i^n of account within the ^"°'*- 

And of tlic court of the exchequer we will end with an old vcrfe 
ingraved in Hone in the exchequer wall, 

h^rrdirns Jnm<> reditiirui fs remulus A'gi. 

Thechiet baron is created by letters patents, and the office is 
granted to him quamdiufe bene g'ejjtrit, wherein he hath a more fix- 
ed eftate (it being an citate for lite) then thejuftices of cither 
bench, who have their offices but at will : and quamdiufe bene gejferit j'*^ infti'/fJa 
mull be intended in matters concerning his office, and is no more 
then the law would have implyed, if the office had been granted for 
life. And in like manner are the reft of the barons of the exchequer 
ronftituted, and the patents of the attorney generall, and fohcitor 
are alfo quam dlu fe henegejfait. 

C A P. XIII. [ 118 ] 

The Court of Equity in the Exchequer 

THE judges of this court are the lord treafurer, the chancelour, 
and barons of the exchequer. Generally, their jurifdi(5lion 
is as large for matter of equity, as the barons in the court of 
the exchequer have for the benefit of the king by the common law: 
♦or all the proceedings both in this court of equity, and of that by 
the common law ought to be, as hath been faid, for the profit or be- 
nefit of the king, or touching the king: and if in either court they Art der. cap. 4. 
hold any plea, which is not for the profit or benefit of the king, ^'g'^* f<»l- 187. 
or wiiich toucheth not the king, there lyeth a prohibition, which, as iand*ca**^Sdl' 
is aforefaid, appearcth in the Regifter : for all are faid commwtia piacita xtio. 
which are not placita corome. 

By the ftatuie of 33 H. 8. cap. 39. they have full po.ver and au- 
thority to difcharge, cancell and make void, all and fingular re- Cancdl. 
cognizances and bonds made to the king for payment of any debt 
or fumme of money, or for j)erformance of conditions, &:c. upon 
Ihewing the acquitance, &c. or any proof made of payment and 
performance. Alfo to canccU and make void by their difcretion all Cancel!, 
recognizances made for any appearance or other contempt. And 
that if any perfon of whom any fucii debt or dutv is demanded, al- 
ledgf, plead, declare, or flic w in the faid court Sufficient caufe and Matter »n la\», 
matter in law, reafon and good confcience in barre or difcharge of rcafon and good 
the faid debt or duty, and t!ie fame matter fufficiently prove in the c°'*^"«"^«« 
faid court : then the faid court fhall have power and authority to 
judge apd allow the (aid proof, and clearly acquit and difcharge 
5 fuch 

1 1 8 The Court, &c. in the Exchequer Chamber. Cap. 1 3. 

Lib. 7. (0. iS. 
Sir Thomas Ce- 
cils cafe, and 
refolved by Eng- 
lifh bill in the 
exchequer cham- 
ber. See there 
divers prefidents. 
* Lib. 7. fo. 20. 
ubi fupra. 
Etlib. 3. fo. 12. 
Sir Wil. Her- 
berts cafe. 

31 E 3. tit 
Leny. I. 
35 H. 6.56. 



44 E. 3.45. 
13 E, 4. 6. 
S H. 5. 4. 
PI. com. 323. a. 
This prerogative 
holdeth not only 
in cafe of rent, 
fervicp, but in 
cafe of a rent 
charge, and rent 

Cancellarm fcac- 


Mirror, cap. 2. 

^ 13. &cap. 5. 


fiich perfon and perfons. Alfo'Iands chargeable to the kings debts 
in the feifin and pofleffion of divers and fiindry perfons, the fame 
fliall be wholly and * intirely, and in no wife feverally liable to 
the payment of the faid debt and duty : but in the faid a^: of 
33_H. 8. all manner of eftates, rights, titles, and interefts, as well 
of inheritance as freehold, other then joyntures for term of life, are 

By the faid ad of 33 H. 8. fpeciall jurifdiaion is given to the 
court of augmentation, when title is pretended to any mantjors, 
lands, tenements, or hereditaments, bargained, fold, or exchanged 
by the king, upon which letters patents there is or fliall be referved 
any annuail rents or farms, paiable in the court of augmentations, 
and divers other claufes which gave to the court of augmentation 
jurifdiction. But the court of augmentation is but in fhew annexed 
to the court of the exchequer, and not dejiire, as hereafter it appear- 
eth in the chapter of the Court of Augmentations. And therefore 
this court of exchequer chamber cannot claime any jurifdiction 
given and appropriated to' that court, for that the court of augmen- 
tations is diflblved. 

I. S. holdeth lands of the king by fealty and a yearly rent, and 
rnaketh a leafe thereof for years to A. B pretends that'l. S. leafed 
the fame to him by a former leafe; albeit there is a rent ifTuing out 
of thefe lands to the king, yet neither A nor B can fue in this court 
by any priviledge in refpe<4 of the rent, for that the king can have 
no prejudice or benefit thereby, for whether A or B doth prevaile, 
yet muft the rent be paid : and if this were a good caufe of privi- 
ledge, all the lands in England holden of the king by rent, &c. 
might be brought into this court. 

But if Black acre be extended to the king for the debt of A as the 
land of A, and the king leafeth the fame to B for years, referving 
a rent: C pretends that A had nothing in the land, but that he was 
feifed thereof, &:c. this cafe is within the priviledge of this court, 
for if C prevaile the king lofeth his rent. 

The king maketh a leafe to A of Black acre for years referving 
a rent and A is poflefled of a tearm for years in White acre, the 
king may diftrain in White acre for his rent, yet A hath no privi- 
ledge for White acre, to bring it within the jurifdiction of this court. 

Note reader, where our books fay, that the king may diflrain 
for his rent in all the other lands of his tenant, of whomfoever the 
fame be holden, it is thus to be underftood, that the other lands 
muft be in the aftuall poiTefTion of the kings tenant, for he cannot 
diftrain in thofe lands in the pofleffion of his tenant for life, tenant 
for years, or at will. 

Some are of opinion that a court of equity was holden in the 
exchequer chamber before the flatute of 33 H. 8. And then it 
muft be a court of equity by prefcription : for we find no former 
adl of parliament that doth create and eftabhfh any fuch court : 
and if it be by prefcription, then judiciall prefidents in courfe of 
equity muft guide the fame : as to the jurifdiition, certain it is that 
there hath been of ancient time an officer of the exchequer called 
cancellariiis fcaccarii^ of whom amongft other officers of the ex- 
chequer Fieta faith thus: Officiutn vera canctllmii tfl Jigilhm regis 
cujiodire Jimul cum contrcrotulis de projicuo regni. And the Mirror 
faith, Perjure eji per la ou ilfiiit chancelor del efchequer vea a tiel a f aire 


Cap. 14. Firft Fruits and Tenths Ecclefiafticall. 1 19 

iuy acquittance tie tant que ai'oit pay al cfcluqucr Je la tU tt Ic roy fouth le 
frak del ejchcqun ou Jelay a /aire acquiitancc dc lid jour tanq. a tirl 
jcufy i:fc. His ancient fee is 40 marks. Livery out of llie ward- 
robe 12 li. 17 s. 4. d. /*« /o/o 39 li. 10 s. 8d. See 25 H. 8. cap. 16. 

* The exchequer hath a chancelour and feal, and the writs • PI. torn 2;i. 
ufuall in the chancery in the exchequer to feafe land, are more an- 
cient then pffro^' ^^S"' 

Hereupon it is collefted, that feeing there hath been time out of 
minde ot man a chancelour of the exchequer, that there (hould 
alfo be in the exchequer a court of equity. 

Where fonie doe vouch 22 E. 4. tit. Petition 9. for the naming 
of the chancelour of the exchequer in granting of writs of fcarch 
to the treafurer and chancelour, the book is falfe printed, for it 
fliould be the chambcrlaines and treafurer of the exchequer : for 
no writ of fearch is direcfled to the chancelour, &c. but to the trea- 
furer and chamberlam of the exchequer, who have the cultody of 
the records, &rc. 

* We find a petition of the commons in 2 H. 4. that no writs * Rot. par. 

or privie feals be fued out of the chancery, exchequer, or other ^ H- 4- ""• ^f 
place, to any man to appear upon a pain, &:c. to anfwer, &;c. con- 
trary to the ordinary courfe of the common law : whereurito the 
king anfwered, that fuch writs fliould not be granted without ne- 

* j^nno 3 H. 5. the commons petitioned that all writs oi fub poena ''^of- pari- anno 
and catii de caujis going out of the chancery and the exchequer \ ^^'-i}' ^^ * 
might be inroUed, and not granted of matters determinable at the 5 jj. 7 \t 
common law on pain of4oli. The kings anfwer was. That he 8h. 7. 13. 
would be advifcd. lib. i, fo. ir. 

* So as in the exchequer there are thefe feven courts, i. The y^t- N. B. 
court of pleas, 2. The court of accounts, 3. The court of re- Do^f^an*'nE"i' 
ceipt, 4. The court of the exchequer chamber being the • affembly infcheUulapcnd. 
of all the judges of Enoland for matters in law, 5. The court of Etfi ccntingat 
exchequer chamber for errors in the court of exchequer. 31 E. 3. f*"^* ^c. Vld- 
cap. 8. and 31 Eliz. cap. i. 6. A court in the exchequer chamber '"P"' P*^- "^* 
for errors in the kings bench. 27 Eliz. ca. 8. 31 EHz. ca. i. Co. ^[ Eiiz.cap. 1 
pi. Intr. fo. 2. 24. 37. and 7. This court of equity in the exche- 27 Eiiz cap.'g/ 
quer chamber. 31 Eliz. cap. i". 

Co. pt. Intr. 

*"o. 2. 24. 37. 


Of Firft-fruits and Tenths Ecclefiaflicall. 

A Court of the firft-fruits and tenths was raifed, officers con- Star.dc jiH. ? 

•'^ ftituted, of chancelour, treafurer, kings attorny, two auditors, <^»P- 45- 

and two clerks : authority given them to compound for -firft- R"'tp««'-47E.'?. 

^ I! ts, bonds taken therefore ftiould be of like force as a ftatute ""h.^°. 

1* I'le: but this court was diOblved by queen INIan' r^x\. i. ufT. 2. Lz ' ' 
cap. 10. 

Thcfe were granted to the crown by the ftatute c : i. , < 

cnv. 3. But all the clergy were exonerated and difcharged thereof »^ 5* 
wticrwards, anno 2 &; 3 Ph. and 3!ar. can. j "? •♦ 

120 Firft Fruits and Tenths EcclefiaftlcalL Cap. 14, 

1 Eliz. cap. 4. 
obferve the alte- 
ration and alter- 

25 H. 8. cap. 5. 
1 Eliz. cap. 4. 

a Wair. an. Dotn. 
1316. Trivet. 
Ranulphus Ci- 
ftrenfis, li. 7. 
c. 42. Polyd. 
Virg. lib. 8. 
cap. 2. Platina. 
Fox, &c. 
bjE. 3. Rot. 
clauf. m. 4. 
c Pari. 1 R. 2. 
nu. 66. 

d Ret pa*-: 4 R. 2. 
nu. 44. 
e Note they 
were not fo an- 
cient with us, as 
is pretended. 

f Rot.par.6H.4. 
nu. 50. 

I 6H. 4. cap. 1- 
nu. 43. 

ii9E.3.tit. Ju- 
rifdiction. 22. 

J^26H,8. cap. 3, 


Num. 18. 2&. 
&c. Vi. Jcrom. 
in Eze. ca. 44. 
T. zS. Stc, 

The flatute of 26 H. 8. revived, and firfl-fruits and tenths of 
the crergy "reunited to the crown by amo i Eliz. cap. 4. But no 
court is revived, but firft-fruits and tenths to be wir.hin the rule, 
furvey, and government of the exchequer, and created a new of- 
fice, and officer, viz. a remembrancer of the iirft-fruits and tenths 
of the clergy, who taketh all compofitions for the faid firft-fruits 
and tenths, and maketh proces againll fiich as pay not the lame. 

Firft-fruirs, or annates, primitice^ are the firft-fruits after avoid- 
ance of every fpirituall living for one whole year (except vicarages 
not exceeding 10 li. and penonages not exceeding 10 marks) but 
all are to pay tenths. 

Ecclefiafticall livings were fometimes valued by a book of tixa- 
tion made in 20 E. 1. which remaineth in the exchequer, and by 
another taxation in 26 H. 8. which alfo rer^aineth in that court. 
And according to this latter taxation are the values of ecclefiafticall 
livings computed for the firft-fruits and tenths. What pope firft 
impofed firft-fruitS; untill * hiftorians do agree, I will not trouble 
my Teif. 

What we finde of record concerning firft-fruits, we will fum- 
marily relate. 

^ The king forbiddeth H. P. the popes nuntio to colled firtl- 
fruits, &c. 

<= That the popes collector be willed no longer to gather the firft- 
fruits of benefices v/ithin this realm being a very novelty, and that 
no perfon do any longer pay them. 

^ The commons do petition that provifion may be made againft 
the popes collectors for levying of the firft-fruits of ecclefiafticall 
dignities within the realm. The anfwer of the king in parliament 
is, There fljall be granted a prohibition in all fuch cafes where the 
popes collectors fliall attempt any fuch *= novelties. 

*" Upon complaint niade by the commons in parliament, the 
king willeth that prohibitions be granted to the popes collectors for 
receiving of firft-fruits. 

g Againft firft-fruits by arch-bifliops and bifliops to the pope of 
Rome, terming it a horrible mifchief and damnable cuftome. 

^ It is enacted, that the popes collectors ftiould not from thence- 
forth levy any money within the realm for firft-fruits of any eccle- 
fiafticall dignity by any provifion from Rome upon pain of the 
ftatute of proviibrs : but this is omitted out of the print of 9 H. 4. 
cap. 8. 

^ The biftiop of Norwich had in 19 E. 3. by prefcription time 
out of minde of man firft-fruits within his dioces of all churches 
after ever\' avoidance. But thefe alfo were given to the crowne 
^ by the ftatute of 26 Hen. 8. cap. 3. 

Tenths ecclefiafticall, decima^ thefe are the tenth part of the 
value of all ecclefiafticall livings yearly payable to the king, his 
heirs and fucceftbrs by the faid ftatute of 26 H. 8. and i Eliz. to 
be valued as is abovefaid. 

Thefe the pope (as the canonifts hold) pretended to have de 
jure diiino^ as due to the high prieft by pretext of thefe words, Prae- 
cipe Levitis afq; dcnuncia, cum acceperitis a filiis Ijrael decimas quas 
dedi ivSis^ primifias earum cffcrte Domino^ id eft decimam partem de- 
cifntf^ ut reputetur vobis in ohlaticnem primitiarum tam de areis^ quam 
de tor cular thus et imiverjis quorum accipictis pri?nitias offer te Domino, et 


Cap. 1 6. The Court of Survcyours. iji 

thte ea Aaron facer ihti. But the parliaments in a c H. 8. and 26 H. 

8. were not of opinion that thefe tenths did belong to the bifliop 

of Rome ; as by the fcverall preambles thereof appcareth, whicli 

we have added ; for that we have endeavoured to fliew through all 

this work the fcverall claims or pretences of every thing whereof 

we have treated. And king Philip and queen Mary yeilded not 

thefe tenths to the pope, but (as hath been faid) by authority ol 

parliament difchargetl the clergy thereof: which tiiey would never 

have done, if they had taken them to be due to the pope de jure 

iiivhto. And the bifliop of Norwich could not have prefcribed to 

have firft-fruits within his dioces, if they had been due to the pope 

Je jure //:v:no : and the rather, for that Anthony de Becke, lor J^^^-^A^'*' lv 

whom the prefcription was made, was a reteiner to the court of /)![' ' '**"'" 

Rome, and made bifliop of Norwich by the pope. 


The Court of Augmentations of the Revenues 
of the Crownc of England. 

THIS court was ere<5led by authority of parliament in an- 
27 H. 8. confiding of a chancelour, treafurer, attorny, folir;- 
tor. And all lands, &c. belonging to monafleries, and pur- 
chafed lands were within the furvey atid governance of this courr 
This court could not be creeled but by parliament, becaufe a 
cliancelour and a court of eaiiiiv were conltituted. More Irrcoi 
in thcnextcbapt' 

C A P. XVI. [ 122] 

The Court of Generall Surveyours of divers of 
the Kings Lands with Power to make Lcafes 
for Twenty-one Years ereded by Adtof Par- ^jH.s.cip ;> 
liament in 33 H. 8. 

"DOTH thefe courts king H. 8. by his letters patents anno rfpni 
^ fui 38 diflblved, and eredled a new court of augmentations by 

his letters patents. The diflblution was holden void, becaufe BraA. Nihil tam 
they were created by authority of parliam.ent. Vid. the re- cor 
hearfall of the ftatute of 7 E. 6. cap. 2. and the erection was "' 
alfo void for the caufeai«»refaid. And thereupon the faid letters lue'diiroiviVo 
patents, as well for the diflblution of the former, and for the crec- r,gamine quo ra- 
tion of the new court of augmentations were confirmed and eftab- gatum eft. 
liihed by tac faid a£t of 7 E. 6. 7 E- 6. cap. 1. 
Queen Mary according to the power given to her for diflblution 

122 The Court of Chivalry. Gap. lyV 

of the faid court by a«5l of parliament holden the fifth of Oilober 

in the firft yeare of her reigne, did afterwards by her letters patents, 

bearing date 23 Jamiayii in the fame yeare dilfolve the faid court 

of augmentations; and the next day following by other letters pa- 

Dler 4EI1Z. 16. tents united the fame to the exchequer, which was utterly void. 

So refolved by becaufe file had diflblved the fame before : fo as fiie purfued not 

ail the J ad Res. i .1 •. ^ 

^ her authority. 



The Honourable Court of Chivalry before the 
Conftable and Mariliall. 

The jille cf the Tj OT. Pat. 12 H. 4. m. This court is called curia Tnilitarb 

court. IV and rot. pari. 2 H. 6. nu. 9. the marfliall court. 

The judges. Xhe judges of this court are the lord conftable of England 

s? ^h ^fi-ft art ^"^ ^^^ ^^'^ marfliall of England, and this Court is the fountain c/f 

cf^thelnftitutcs. ^^^ marfliall law. And the earl marPaall is bofh one of the judges, 

fed. 745. many and to fee execution be done. 

ether authorities Conjiahle cr cunjiahle is compounded of two Saxon words, cun- 

f^^^*^- inge per contraclionem kinge^ and (lahlcy id eft, columen^ quafi colu?nen 

'i^'"rtZ\he ^'^S'^^^ anciently written cunhigjiabk. MaijJiall anciently written 

Ii'iftitutes, feet, marfcolc^ likewife of two Saxon words, viz. tnarc for eqtiu^., and 

0:02 £; 153. fialc curator^ quaji curator e quorum : for the marfliall mnrifchallus^ 

and the derivation thereof, fee the firft part of the Inftitutes, fe6l. 

102. fol. 74. fe6t. 154. fo. 106. feftion 74;;. fo. 391. 
The place, 'fhis court of chivalry was anciently holden in the kings hall. 

The jurijdimon. The jurifdi»5lion is declared by the itatute of 13 R. 2. flat. i. 

Rot. par. 8R. 2. Eecaufe the commons doe make a grievous comiplaint, that 

nu. 31. notin ^^ court of the * conftable and marfliall have incroached to 

Sat?i.^^c^2** them, and daily doe encroach contrails, covenants, trefpafles. 

Rot. pari. 8 H.6. debts and detinues, and many other anions pleadable at the 

nu. 38. common law, in great prejudice of the king and of his courts, 

*ldT!nfia^^"' and to the great grievance and opprelTion of his people, the 

J H. 4. cap. 14. king w^illing to ordain a remedy againft the prejudices and 

grievances aforefaid, hath * declared in this parliament by the 

*Nota declared, advice and aflent of the lords fpirituall and temporail the 

power and jurifdi6lion of the faid conftable in the form that 


The pciver and To the conftable it appertaineth to have conufance of con- 

juujdiakn. trails and deeds of arms, and of war out of the realm, ( i ) and 

alio of things that touch war within the realm, which cannot 

be determined or difcufied by the common law, with other 

ufages and cuftomes to the fame matters pertaining, which 

other Conftables have heretofore duly and reafonably ufed in 

their time, joyning to the fame that every plaintif fhall declare 

plainly his matter in his petition afore that any man be Tent for 


Cap. 17. The Court of CH^alry. 12j 

to anfwcr thereunto. And if any will complain that ai/. 
be commenced before the conihble and marftiall, that 1 
be tried by the law of the land, the fame complainant ihail 
have a privy fcal of the king without ililficulty diredted to the 
faid conilaMe and marfh;*!! to furceafe in that plea, till it b9 
difcu'lcJ by the kin^r^ councell, if that matter ought and of 
right pertaiiTCth to chat court, or otherwife to be tried by the 
common law of the realm of England, and alfo that they fur- 
ceafe in the mer.n tir."!c. 

oto L,n imici -.-.ii . i lut 1 .1.!. -ir,^, cap. High Treafon, paj^. 26. 
Rot. pat. 25 E. 3. parte i. m. 16. i H. 4. between the lord Morly 
and the earl of Siruin, the record whereof we have feen. Rot. 
pat. 2 H. 4. parte i. m. 7. between Kighly and Scroop. Rot. pat. 
3 H. 4. Baliefhuls cafj. Rot. Vafcon. 9 H. 5. nu. 14. Bullemers [ I24 ] 
cafe. Rot. pari. 21 R. 2. nu. 19, &:c. Rot. pari. 2 H. 6. nu. 9. 
Holl. Chron. 424. 3 H. 4 Sir John Annefleys cafe. See this 
rale Walfing. pa. 237. Ducllu>n percujjum. Ibidem 8 R. 2. 446. 
John Vv'aldies ca^e. For this cafe of WalQi, fee Walfing. pa. 311. 
and Stowes Annals 477. Howes Chron. 8 H. 6. 371. between 
John Upton and John Down. Vide Stowes Survey of Londoa 
385. See this cale, rot. pat. 8 H. 6. parte 2. m. 7. Annals 609. 
Stow. ibltL anno 25 H. 6. anm domini 1446. between John Davyi 
and William Catur his mafter, Annals 655. ibid. 586. batrell joyn- 
ed between Thomas Fitz-Thomas prior of KiLran and James 
Butler earl of Ormond ; but when it came to the point the king 
forbad it. \ ide Rot. psrl. 2 H. 6. nu. 9. John lord Talbot lieve- 
tenant of Ireland accufed the earl of Ormond of high treafon be- 
fore the earl of Bedford conftable of England in his marflials 
court, the king did abolifh the accufation. 

What judgmciu fliall be given when either party is vanquifhed, 
fee the articles of the duke of Glouc' conftable of England about the 
beginning of the reign of R. 2. The law of arms is, that the ap- 
pellant being overcome fliall incurre the fame punilhment, that tlic 
defendant ought to have done if he had vanquiflied. 

See an ancient manufcript in French <?ntitulcd Modus fadend* 
Aiellufn coram r:'^c. Bone foy et droit et ley de arms voet que lappedlant 
encourye niefme peyne que Ic tiefendant deverolt, fd foit cojivi^ et di/com- 
ft. * And ti^s feenieih to be confonant to the law of God. ^ 

This nianufcript treatcth both of the jurifdiflion and manner of ^ndThc fud •«■« 
the proceeding before the conftable and marfliall, and for that it is flj^ll makp dili- 
long, and I doubt not but copies thereof are \x\ many hands, I gent IfKjuifitidn, 
have not inferted it here. ^^-^ '^tt.e ?c- 

There are m.any in forain parts that have written of combats, f"'5t\^jj'^h"A 
&c. in Latine, French, and Italian. As Alciat, Lancelottus, Con- ha'h'giren falfc 
radus, Johannes de Lignano, Mutio JulHno Politano, Bcrandler, witncircajjainft 
Bcutheus, I)efdigueres,,&:c. to whom we refer the readfr, for that his hrocher,thrn 
h is (afe to follow the acfls of parliament concerning the jurifdic- j^^"'^ ''"V h a* 
tion of this court, and fuch prelidents as have been before the con- fh^J-JJ to d*je 
llabU and marftiall in the marftials court within this realm. to hli brother, 

(i) Out of the realm.'\ This is to be underftood in any forain and ihou rt»alt 
part beyond the feas, in partilus extcris et trnn/marinis. For upon P"^ «*••' »way 
the fea the hath jurifdiaion, which adiairall (our En;;liili ♦'p'T'themiddsft 

IV. I: ;. h NcpiUDc) '''^•'* 


56 H. 8 
35 H. 8 


cap. 2. 
6. cap. II. 

The (Jourt of Chivalry. Cap. 17. 

Neptune) cannot meddle with any thing beyoiid the feas upon the' 
land, and the conftable and marfliall have no conufance of any 
thina done upon the fea. 

Where by thefe a<5ls it is provided, that all treafons, mifprifion 
of treafons, or concealment of treafons committed out of this 
realm of England, iliould be inquired of, heard and determined in 
the kings bench by good and lawful me:i of the fame (liire where 
the faid bench Oiall fit, or elfe before fuch commiffioners and ia 
fuch (litre, as fliould be affigned bv the kings commiffion by good 
and lawful men of the fame faire, in like manner and form to all 
intents and purpofes as if fuch treafons, &c. had been done within 
the hmc, &c. None of thefe a6ls doth take away the junfdi6fion 
of the conftable and marfliall, where one accufeth another of high 
treafon done out of the realm : for of fuch an accufation of one 
againfl another of any high treafon done out of the realm the con- 
flable and marfliall fliould have comifance thereof: becaufe high 
treafon is not triable by jury according to the courfe of the com- 
mon laws of the realm in that cafe for want of proof, as by all the 
prefidents aforefaid it appeareth: Neither doth the faid act of 
35 H. 8. or 5 E. 6. take away the ftatute of 28 H. 8. cap. 15. for 
try all of treafons done upon the fea, albeit they be done out of the 
realm. See hereafter cap. 25. and the third part of the Inftitutes, 
cap. of Piracy, pa. 1 1 1, & 112. and there was no doubt conceived 
of the triall of them. See the preamble of the ftatute of 35 H. 8^ 
and of 5 E. 6. 

* If any merchant Engltdi be fpoiled, or his goods taken from 
No re remedy by ii'^"* bcyoud fea by auv merchants flrangers, and the Eiiglifli mer- 
chant cannot upon fuit attain f to juftice there, he fliall have upon 
teflimony thereof a writ out of the chancer) to arreft the nier- 
chants ftrangers if they come into England or their goods, &c* 
nntill they be fatisfied. See hereafter tl:e chapter of Admiralty. 

Before this a6t at a parliament holden in the 8 year of R. 2. 
it w'as enacfed, that no plea which fliouid concern the Gommon 
law fhould be tried before the conflable and the marfnall. 

No addition either of perfons or of jurifdi6lion can be added to 
this court, imlelTe it be by aft of parliament, * for ancient court* 
ought to be exercifed according to the ancient and right inllitu- 

In the appeal aforel^iid between Upton and Down in 8 H. 6*. 
after battell joyned, the kings writ out of the court of chancery 
iflucd to the flierifs of London, as we find it entred and recorded 
in the great book of the abby cf Bury fo. 87. as foUoweth. 

Rex vic^ London fahtem : predpimus 'vohis jmnit' hijittigcntes qiiorf 
quo/Jam li/Ias et b arras Je 7ncre.mio fortes et fath fuffickntes pn quodam 
duello inter Joharmem Vpton appellant em et Jchmmcni Doivn dcfcnden-^ 
tem^ fecundcm legem armorinn die Lu7ia prox* futur'' apud JJ'rftfmith- 
jield In fuhirh" cllitatis pradi^^ Deo dante terficiend'' contra dirm prr^- 
d'lHum Ttofirls filmttilms et expevfts crigi^ conjtrin^ et fieri fac'' in omnibus 
prout in ultimo duello ihide/n faclo fa^\fuenint^ et qtiod terra infra- 
lijlas prtedi^^ cum fabulo fufficiente et equalii^ cooperatur^ ita quod ali- 
Olouc' conftable ?^^' ^^P^^^^ grandes aut arena infra eafdetn lift as ?ninime ijiveniantur 
o{ Fngland, quovifmodo t et de o?nnibus et fiyiguUs pecunieinim Jumniis quas circa pre- 

3h^ut the begin- ihi^a (ippUcavifitls^ not vciii in CQrnp^h vejiro ad fcaccarium nojlrunf 
n!p.p,of th(i It'ign • ■ ' ■ 

See 1E.6. ca.i2. 
ii. 5 E. 6. ca. II. 
in the 3 part of 
the laft. p. 24. 

See 5^1. ca, 5. 

F.N. B. 114 b 

the common 
Jaw fi)r wrong 
done beyond the 

t[^25 ] 
Rot. par. 8 R. a. 
nil. 3 I. not 

Rot. par. 5R.a. 
ru. 39- Bennet 
Wiimots cafe. 
6 H.7. 5. Simile. 
* Rcgul. 6 H. 7. 
4> 5- 

Breve Vic'* Lon- 
don pro liltia & 
barris, &-C. pro 
duello fac'. 
Lex arrriorum. 
Pro duclln, &c. 
See the articlca 
fet down by 
ftocU duke of 


Cap. 17. The Court of Chivalry. tlj 

per prefins matulatum nojirimty Jehitam allocatioficm habere facit* 
fUUSs ^V. 

By this wTit \vc obfcn'c 4. thing?. 1. That (licrifs dnght to Sec mod* fw.' 

make ihc lifts, &c. 2. The iiianiitT how thcv are to m.:kr: thci-p. duciium cbrai» 

3. That they ouglit to ir.akc them by the kings u ; That ' *^* 

ihcy are to be made at the kings charges. 

Ev the ftatute of i H. 4. all appeals of thinj;s done within tlie » f^- 4' cap. 14. 
reahn fliall be tried and determined by the good laws of the rea^ni, 
&c. And that all appeals made of things done out oi the reahn 

Ihall be tried and determined before the conftable and marlliall of Rot. par. 11H.4. 

England for tlie time being, JClid that no appeal be purl\ied in par> """ ^^' 

They proceed according * to the cimomes and iifages of that ' ^1^- A» 

court, and in cafes omitted, according * to the civil \?lv:^ fccumlum B^^t^fi^Uluv} 

ie^em a^ morum. And therefore upon attainders before the con i;Sc. 

liable and marflinll of England for the time bising no knd is for- * 37 H. 6. fo. 3. 

feited, or corruption of bloud wrought. Forrefc' cap. 32. 

For records, book-cafes, and other authorities in law as well ^**' ^ 
for the expofition of the faid llauites, as for the jurifdiiffion and 

proce. difigs of this court, ^ fee the firll part of the Inflitutes, fec>. '' nH. 4. nu.24. 

102. and 74v and pcrufe the authorities there cited. See alfo the All ilatutcs made 

petition or ri^ht, 3 Car. cap. i. *""'; k"? ,1' 

♦t- \'~'\\rr I'l- courts ot the 

It IS to be oblcived that after lentence pronounced m this court c nfiabic and 

of chivalry in cafe of arms the pnrty grieved may appeal to the nurfnail and 

king, whereof vou may read a notable record, Rot. pnt. 13 R. 2. 2<^'Tiirar of E»g- 

parte 3. Note 'alfo a ipeciall rol, an. 14 R. 2. intituled rot. fro- l'"^ fta''.|>f'' b-' 

r^ • r^ • ■ r • > n- ' i o / • ?■ fcrved. \ ide rot. 

crjs in cuiia nnlitnn :n caya annOium, mt Kic um le bcroop chivalicr^ pj^l, r h. 4,. 

et Robnium Grcvemr chivalicr. nu. 24. An z€t 

And for this caufe (amongft others) ^ t!x heralds are attendants '^"t in print 
upon this court. Of thefe heralds there be tres renrcs, viz. G:itftr rex touching: a com- 
armoritm, Clarcr.ccux * rex at/mrttm rx parte nuftrali. Nor toy rex arttio- ', '^1 "'r 

rum ex pmte b'jrcaii^ et f^x alii iurahit. Thefe Englifi) heralds are terinj; of rr.en, 
melFengers of w^r and peace, fkilfuU in defcent?, pede^ree?, and whi».h at this 
armories ; they marfliall the folemnilies at coronations, tlfcy ma- '^"J' '* ^'^ ioi^^% 
nage combats 'before the conftable and mai-ftiall, and upon rcqucft Vjj ! q h**^'' 
they folemnizc the funerals of noble, honourable, reverend, and n iz Ckrgr 
worftiipfull parfonaoes. ■ They were tirft inciirporatcd by king exemproutof 
R. 3. and afrtrvvards newly incorporated by king Philip and'queen ^^at. Sec alf) 
Mary. Th^ir leariiing and faithfull dealing in defccnts and pcde- ^^ ^; 3- ^*'- *• 
grees upon juft proof n^ay be a mean to quiet many controverfies JJ^^flion oMk«I.' 
about the titles of honors, dignities, and inheritances. tenancy. See 

* In the Prophet Ezechiel it is thus written : Dlcit dominus detts, herraft'era- 
rt erit maims mca fuper propiietns^ qui vidaif 'cana^ et dtvinant mevda- "»""g^ the cc- 
'cium : in ccncilio popuii mei non erunl. et in faiptura domus Ifracl jwn *^''"^'^**'^*'' 
fcribentur. "^ > J i' J courts, t.t Ap- 

Upon thefe latter words divines doe hold, Qtiod mcs ernt in Ifrael\ Vid. Clover S2, 
ijuod unaqu^que familia gmealogiam ejus Jcribcr.t, in qua dinofceh<itur 5^3- 

' Saxonicc 
Epnhold ». ho- 
nortm teneni, Litine fstclalc*. 5 E. 4. 6. b. PI. Com. I2»b. * Rot. 1 R. 3. rot. pat. a it 3 I'h. 
and Mar. i8 July : their colledge is in the parifh of S. Uennet in' Gallic Wiu.xtA awrd granted to 
the corporation of the herads by letters parents bearing date i8 July 15C5. .inno 2 & 3 Ph. 
and M*r. Etcch. 13. S, 9. Pfalm. 69. D Itantur dt lihro livemhimj ,t ^um juftn ntn fcr'^jntur, 

I Eldr. ca.». 61 ill nuafutuitt fcrifturam gemali^gta jUiC a ntn ■<■' . " '• ''■• '"«;. 

♦ [ 126 ] 
JL 2 quiiitet 


<: Difch^rgcdof 

^ Rcgiil. iSy.b. 

r. N B. 247.C . 

* Or in the 
kings bench or 
other courr. 
ti Ota, probarone. 
Vid. 8 H. 6. 9, 
10. 14 H. 6. z, 
lib. 6. to. <;3. b. 
e Countes de 
Rut-lands cafe. 

10 E. 2. CaiTi- 
deij Erit. rot. 
cut. 23 H. 3. 
Hu. 32. 34, A!- 
marlckeail of 
Leic' Math. Par. 

* Inquifi:' 
!a.i H. 6. poft 
martetn Wil- 
itf;iml domini ds 

Hi J. anno 3r El, 

[ 127] 

The Court of Chivalry. Cap. 17. 

(jUililpet de qua tribu erat., et dt qua familia^ . et qua Jicereditas rjus ejfe 
deheret^ et ilk qui penltus dejiruer ctur non f.riherefur. 

^ Thefe heralds are difcharged of fubfidies, tols and other 
charges of the comnion-vvealth, bv letters patents of E. 6. a7ino 3. 
of his reign. 

See the iiril: part of the Tnftitutes for degrees, and creations of 
nobility, ?,nd triall thereof, Se6l. 9. fo. 16. and Sect. 95. fo. 69. 
whereiaito you may adde a notable writ in ^ the Regifler, when a 
baroa or any higher degree of noi/dity is fued in the * court of 
common pleas, and procefie awarded agdnft him by capias or exi- 
gent^ then may he fiie out this writ. 

Rex jujiicinriis fuis de banco faluiem. ^lar,dami:s vobis^ qucdji G. T. 
miles coram vohls adfedam alicujris per a^ione^n perfonalem implacitatus 
exijUt^ talem procejjmn et non alium 'verfus ipfum in adicne pradiila 
fieii fac'iatis^ quaV 'verfus dominos^ magnates ^ cc7nites Jive barcnes regni 
nojtri Anglice qui ad parliajneMtum no/irum de fommonitione nojlra venire 
dchent nut eorum aliqiicm fecundum legem et cojifuc tudinem regni nojiri 
Aiiglid' fuerit facicnd'* ^ quia pra.diB'' G. T. unwn baronu?n regni 
no/iri pradi^^ ad parliament a mjlra de fofnmonitione regia venientium re 
cordariy csfc. 

The barony of Edmond de Eincourt commonly Deincourt of 
Langley in Lincolnfiiire originally created by writ, had long con- 
tinued in his firname, and having no i(uie male, defirous that his 
firname, arms, and barony, all which he held in fee fimple might 
continue, by humble fuit importuned king E. 2. for that he 
conceived, Quod cognomen /uu?n et arma pojl mortem fuum delerentur^ et 
corditer ajjciiabat ut po/l Tuortcm ejus in memoria haberentur^ ut de ma- 
neriis et armis fuis feojfaret qucmcunque voluerit : and in tiie end he 
obtained his fuit by the kings letters patents under the great feal, 
and afterwards about 19 E. 2. he affigned according to the kings 
grant his firname, arms, and pofTeffions. For we find in the clofe 
rols that the faid Edmond baron of Eincourt fat in parliament un-= 
till and in 18 E. 2. and that after his deceafe his aflignee fat in 
parliament in 1 E. 3. by the name of William de Eincourt, and 
in his heirs males the dignity, firname, and poflefiions continued 
♦ untill 21 li. 6. and then his heir male together with the name 
and dignity ceafcd. 

And I did hear the baron of Burghley lord treafurer deputy to 
the earl of Shrewibury then earl marfiiall of England, in hearing 
of the caufe by the queens commandement between Edward Nevil 
and lady Mary Vane daughter and heir of Henry lord of Aburgaveny 
for the right of the barmy of Aburgaveny, vouch a record in the 
reign of E. 4. That the lord Koe, who bare for his enfigns of 
honor quarterly filver and fable, having no illue male, by his deed^ 
under his feal granted his name, arms and dignify over, but having 
not the kings licence and warrant, the fame was in parliament ad- 
judged to be void. 

Our heralds are conftitutcd by letters patent?, and have many 
cer4;n;cnies done unto them at their creation, but thofe ceremonies 
are not of the efience of their olfice, but the letters patents only : 
and fo was It adjudged .in the kings bench, in the reign of Queen 
Fiiz. ia the c:iie of Dethick king of arms. But thus much of he- 
r-aiJs u\iijn this occafion /hc.lJ futiicei and now let us return to our 
4-oafhbk ^iid marfiulL 


Cap. 17. The Court of Chivalry. iiy^ 

In ancient laws before the conqucft, you fliall read df fureiocUlt Int' Icgcj VA- 
t cxerchtts,abht}\^. exneitusetXOtc^i^fiitcerc. L*m!,'li'*6* Ho- 
' ith either of theie great olHcers, cmftiibxtlartui vcndeo'/nnaL**' 
Qj j; :Jii v-i^teli^ebantur per cQrtifr.une concilium pro communi caji.j^. De He- 

*/. . fxr provincins et potricos in pleno folk i.ote. rctochiis. 

1 hi;> otiicc of t!ie conftable of England was afterwards of inheri- ^j/.*"''*'"* **"^' 
tance by the tenure of the niannors of liarlefield, \ewman, and Llmbard ubl 
Whitenhiirll by grand ferjeanty, in the line of the Bohuns earls of fup Hovcod. 
liercford, and Klkx, and afterwards of right in tlie line of the ubi fop. 
St*aftbrds and dukes of Buckingham as heirs generall to them : at 
the laft by the opinion of * all the judges it was lawfully dtfcended ♦ Sec 11 El. 
to Edward duke of Buckini;ham, who was attainted of treafon, in ^^^^ ^^^'JV^^ 
anno 13 H. 8. whereby this office became forfeited to the crown, *^^'* m6H. 8. 
and fincc that lime botii in refpeft of the amplitude of the autho- 
rity both in war and peace, and of the charge, it was never granted 
to any fubje»5l, but now of late kac vice. 

For the ofHce of the earl niarfliall, fee the firft part of the Infti* 
tutes, i't&.. 102. & 13^. 

The efFc6t of the grant of this office of conftable of England is 
in very it\w wortis, viz. qfficium conjlabitlarii Anglia una cum omni- 
bus feodis^ proficuis^ commoditatibus^ tt cmoliimentis quibufcunque officio 
p-adiClo qKalitercunque pertivetitibus, et ab antiquo dcbilis et confuetis. 
And by no means we are to follow the irregular prefideiit of the 
grant thereof by king E. 4. in the 7 year ot his reign to Richard 
Widevilc earl Rivers and lord of Grafton and De la mote for 
his life : which patent you fhall find rot. pat. anno 7 E. 4. part i. 
and is direcfly againft the common law and the ftatutes concern- 
ing the jurifdiclion of this office: and therein to over-reach all the 
good and wholefome laws made for the declaration of the jurifdic- 
tion of this great office, power was given to the earl Rivers to have 
connfance in cafe of high ireafon, and other caufes and alfairs, 
que in curia corijiabulaiii An?Ji(^ ab antique^ viz. domlm Guilichni 
Couqueflcris pro<reiiitoris regis, feu aliquo tempore citra, tradari, audiriy 
exam 'nivi et dccidi cojifuevcrunt, ftu de jure dcbuenir.t five debent, et di^ 
verfn alia perperam. And therefore by no means the fame or the 
like is to be drawn into example. 

For grants of this great office of conftablc of England, fee the 
prefi lents, ar.d by that which hath been faid choofe the bell. 
Rot. pat. I H. 4. parte i. Henrico comiti North pi vita. Rot. pat. 
^ H. 4. parte 2. J hanni filio regis, ad p!acitnm. Rot. parL 
I IT. 6. nil 23. Duci GLuc* ad placitum. Rot. pat. i H. 6. 
parte 2. Johanni duci Bedford pro vita. Rot. pat. 8 H. 6. parte i. 
Rlcliardo duci Elcrum in ahfentia Johannis ducis Bedford. Rot. pat. 
2; H. 6. parte i. Johmmi vicecom' de bello monte. Rot. pat. 28 
H. 6.^ p^rte 2. m. 22. H:nrico com. Northtimbr. ad placitum. Rot. 
pat. 29 H. 6. parte l. Edmundo duci Sowerfet ad placitum. Rot. 
pat. I E^ 4. parte 3. m. 188. Johanni com. inborn*. Rot. pat. 
7 E. 4. parte I. Johanni domino Tiftoft. Rot. pit. 7 E. 4. Ubi 
fupra Rickardo'com' Rivers. Pat. 8 E. 4. parte i. Pat. 9 E. 4. 
C'orgio duci Clarenc\ Pat. 9 E. 4. parte 2. Richardo duci Gloc\ Ule mn'mm ■«• 
Vm. 10 E. 4. parte, '-^ Johanni X^ptoft comiti JVtgorn, pro vita. »»'»'•#•'*'.• but 
Pat. 16 E. 4. parte I. Ricardo duci Ebotum. Henri eus Stafford dux ^fj' t^^ bcvct"" 
Richingham jure harfditario. Pat. i R. 3. Thomas d. minus Stanley, unpaid, rri^jV* 
Kdv.'ardis dux Buck\iure hared'ta'io. fmtm. 

Thi| jreat office hath been ufually granted, as by the prefidents [ 128 ] 

L 3 aforefaid 

J 28. The Court of Chivalry. Cap. 17. 

aforefaid appeareth, exercendum perfe vcl per fufficientes deputatos fuoSy 
" Jtu per Jiifficicn* deputatuni fuiim. 

There is alfu an otiice of fuhconfiahularius granted to Thomas. 
Kent doftor of laws. Pat. 23 H.6. parte 2. biniile pat. 22 E. 4. 
rn. 2. 

There Is ah?) clericus conflalularits AtigUce^ et projhOtor cavjarum ef 
ncgoticruTn rcgiain ma'vjiatan iangen\ This oflice was granttd to 
Thomas Appiilton with a fee of five marks. Pat. 8E. 4. parte 1. 

Concerning tlic grants of the office of earl mnrfliall of Eng- 
land : for this office ever pafled by the grants of tlie king, and never 
belonged to any fubjeft by reafon f)f tenure, as the Itewardfliip^ 
and conftablefiiip of England fometime did. 
Ro. Cart. V.ex^ ^c.fciath quod cum nos 7iuper de gratia nojira Jpeciali concef- 

20 R. 2. m. I. ferimus diUcJo covfanguineo njiro ThomiC comiti Nofingham officium, 
"•3' rnarejchcdli An^llce : habendum ad tot am vit am fiinm, Nos jam de ulie- 

riori gratia nojlra concejjimus prcefato confanguineo tiojiro officium pne- 
* Tills is the dicfum * una cum nomine et hcncre comitis marefchalli. Habendum Jibi 
iirfl: ftiie tliat ^^ hcerea'ibiis fuis mafculis de ccrpore fuo cxeuntibus cum omnibui feodis^ 
ever canse )a proficuis et pertiner.t'is quibufcunque dido officio qualitercunque fpe^anti- 
any pa eru. bus imperpctumn, Uiis tejlihus^ ^c. Dat' \1 Junii ajrno rcgnijui lO, 

Ro. C3rt.9R.2. This charter of creation is confirmed by a6l of parliament. The. 
**"» ^7- forn,er grant before recited, vet fliorter then this, was made anno 

9 R. 1: 

For other grants of this office in Rot. Cartarum, pat. & pari. 
See Rot. C^rt. i Johannis parte 2, nil. 85. Rot. Cart. 9 E. 5^ 
iiu. 32. 

I H. 3. m. 14= 16. 
22 R. 2 parte r. m. 12. 
I H. 4. parte i. & 5. m. 6. 
I R. 3. parte i. m. 12. 
Vide Rot. Pat.<^ i H. 7. parte 3. 
) 2 H. 8. parte 2. 
25 H, 8. parte 2. 
I E. 6. parte 2. m. 19. & 22. 
19 Ja. parte 13. nil, 5. 

f 3 H. 6. m. 181. 
I I Mariac, nu. 34. 

Vide Rot. 


^ 20 R. 2. nil. 33, 
I Pari. 21 E. I. rot. i. 

Pat. ^^ E. 4. 
pi. 2. 

Qua: pertinent ad officium 
comitis marefchalli^ ^c. 

There was alfo -vicemartfchallus^ which office was granted to Tho, 
Grey hac vice* 

Vide lib. nigr. de fcaccario^ concerning the offices of the confla- 
ble and marfhall, et lib. rubiofo. 36. 

See alfo the n^arfliall of England, Fleta lib. 2. cap. 4, 5. an4 
Britton in principio lihri . 

See Mich. 13 E. 2. infcaccarioprofe'.;disconj}abulariiA)iglit:e. 

Hil. 5 E. 3. in fcaccario ccrtificatio fad' regt fro officio marefchalli^ 
I E. 3. fo 16. 2 E. 3. io. 12. 48'E. 3. 3. Rot. pari. 2 R. 2. 
im. 47. j; R. 2. tit. Triall. 54. Rot. par. 5 ET. 4. nu. 39. Keyl- 
wey 172. Stanf. Pi. Cor. 65. Fortefcue ca,. 32. fo. 38. 5 Mar. 
]^r, tit. Batteil ic. 

"* Haejlita 

Cap. 17. 1 lig CuLUL ui chivalry. -f-lzS 

Hncflita ii-iuiu .ii a foWicr hired and departing witliout liccticc, 
derived oi herc^ excrcUui^ ^\v\j!':ten, to depart. 

Jfaiiy foldicr have covenanted to fcrve the king in his war, and Rci;«, 
appear not at the time and placc^ppoinlcd, there lyeth by the & i'ar. 5 E. 3. 
conuiion law an original writ o« capias comiuChs a J proficifauJuni^ ""• *8' 
direi'^cd to two of the kings ferjeants at arms to arrell and take [ 129 ] 
liim wlicrefoever lie may he found, and to bring him coram concilio 
rr>/iro with a claufe of a'liiftance ; but of tiiis matter fee the third 
p.irt of the Inilitutes, cap. [Soldiers that depart, &:c.] See 3 Car, 
tijc petition of right concerning martiall law, and the commilUon 
to lieutenants, &c. 

To conclude with fomc fljort touch concerning right of war. 
Si qiiinJo accclfois ml expug)ia7i:lam civitatem, offcres ti pvurmm pacem_: "cut. 20. ic -tc. 
and fee there many things concerning right of war. Q«;j rex iturus ^''* ^^ V* 
iommitter: bellum adverfus allum regemt non ftiims prim cc^itat Ji pofjit 
cum (l:Cfm millibus occurrere d qui cum vii^htti imUibin njenit adfc^ 
alioquin illo adimc longe agentc kgationem mittens rogat ea qua pads 

Haud fadl: vincitur qui Je fuis et advcrfarii copiis verc potent Tachut. 
iutiicare, Qtii colloquium ofj'crt^jemper pavrfcit^ he that offereth parly ^(g<^^"y<iert 
is ever afraid. Nulla f wit meliora onfilia quam qme ignmaverit ad- ""''''"''* 
vcrfarius ant a uam facias. 

ISiulIum be turn cji juftuni nifi aiit pro rebus petitis geratur^ aut ante Cicero offjc\ 
ihnunciatum fit^ et indi^um. 

Jure gentium non licet indiRas inimicitias exercere et b'llum gerexe^ Camden, 
priufquam ille a quo injuria Jit or/a montatur illicitam injuriam refar- 
circ^ et ab injuria abjijlcre. 

Jujium autcm bellum ejl quod tria hcec habet^ authorcm, caufatn^ 

Semper in tralio hiis maximum periculmn^ qui max'imc timent. Sa/ufi. 

Lf.ngn belli pits per atio celercm dat "dftoriam. J'''g(f- «' Stntca, 

Ideo Jufcipienda funt bella^ ut fine injuria in pace vivatur. Cicero ubi fup, 

Lt republic a maxiine confirvanda funt jura belli. An!:. 10, 

• Olim veteri Age armcrum civcs ct burgenfcs militiam tra^are pro^ » Vid. z^'L. 3. 
hihitifucrunt. tit. coion. 

We vouch Vegctius for h's own honor and worthinefle, and for 
that Fortefcue, fo. 79. b. cireth him. 

L 4 C A P. 

130 The Court of the Marfhalfea. Cap. 18. 


The Court of the Marfhalfea. 

The name. TT ^ ^ ^^^^ derivation of marefchallus et marefchalcia^ fee before in 

I part of the In- ^ the next preceding chapter of the court of the conftable and 
fticutes, §. 102. marfhall, that they be derived from two Saxon words whicli 

J ^35-. . we conceive tendeth much for the proof of the antiquity and ho- 

j/je aniquity and ^^^ ^£ ^^^ nation, feeing other nations have the fame officers and 

4 H?6. 8. L. offices ; and in refpe£l their name is derived from the language of 

5 E. 4. 229. our anceftors, it is like they took the fame from us. 

JVkerefore it is Albeit in this court the fteward snd marfliall of the houfhold 

f'^'^ca the court of ^j.g judges, and the fteward hath the precedency, yet the court 
fv( marpaljea. j^ ^^|j^j ^j^^ ^^^^^^ of marfhalfea for three caufes. Firft, he is not 
only a judge, but feeth that execution (which is the life of the 
law) be done. Secondly, his office is in force both in time of 
peace, and in time of war. Thirdly, though the conftable hath the 
precedency of the marftiall of England, yet tl:e court holden be- 
fore them is called the mar{\iall court for the caufes aforefaid. See 
before in the chapter of the conftable and marftiail, fee alfo rot. par. 
anno 8 H. 4. nu. 82. that the court of the marfliall can hold no 
plea but fuch as were holden in the reign of E. I 
Thejunpmoncf For the jurifdi^lion of this court, and within what precin6l, fee 
this court is on- in my Reports, lib. 10. fo. 68, 69, &:c. Le caje del marJJtalfea^ 
ginaland^rdi- \}^Q, 6. fo. 20, 21. Michelbornes cafe. 7 H. 4. 15. in Calvins 
''^j^- cafe, Lib. 4. fo. 46, 47. Swifts cafe. See pari. 30 E. i. rot. 2. 

^ ' ' ' j\n inquifitions concerning any citizen of London (hall be taken 

in LonJon. 
Hll. 20 R. 2. Pertinct ad rtim-efcalluni cur'' hi c venire fac'' jur ai or e s Jupcr f denes 

^'^l^^-^^A '^°''' (^^p^''^ ^^'^ -inarMoUre In aula regis, 

^ ■ " ' This court hath his foundation from the common law of Eng- 

\V. I., ca. 26. This rnrirftiall by the ftaUite of W. \. can take no fee for doing of his office but only of the king, but fuch fees as latter a6ts of par- 

liament have given him, he may take. See the third part of the 
Liftitntcs, cap. Extortion. 

For the fees of the marftiall of the kings houfe, and of ftaffe 

bearers, and fervitors of bjls, fee the ftatute of 2 H. 4. cap. 23. 

Rot par. 17E.3. To conclude this chapter with an a6l of parliament not in print. 

pu. 34. It is enafted that every perfon arrefted into the marflialfea, may 

tell his own tale, and that the officers doe not paffe the verge, 

^ee par. 50 E. 3. nu. 91. 162. 


Cap. 19. The Conntiiig Houfc, &c. 131 


The Countlng-houfe of the Kings Houfchold. 
Donms Compotus Hofpitii Regis^ 

IT is comn-.only called the green cloth, in refpcc^ of the green- 3jH.8.cap.i». 
cloth upon the table, whereat the honourable offic^irs hereafter 

mentioiUvl do fit, viz. the lord ftevvard, the treafuriT of the 
kings hoijfe, the controller of the kinos honfe, the mafter of the 
houlehold, the colTerer, and two clerks controllers continually fit- 
ting in this connting-hoiife for thcfe purpofes. Firil, for daily tak- 
ing the accounts for ail expences of the faid iioufehold. Secondly, 
for making oi" provifions for the faid houfehold, according to the 
laws and llatutes of the realm. Thirdly, for making of payment 
for the fame accordin^dy. Fourthly, for the good government of 
the kings fervants of houfehold. Fifthly, ihe cofferer is to pay the 
wages to the kings fervants beneath the Ifaires, and the lord cham- 
berlaine above the flairs of tlie kings houfehold. Vide 39 Eiiz. 
cap. 7. and he is to account in the exchequer for about 4000011. 

See Fieta ^1? thefaurarii hofptt'ii r<r;'V, ^c. Habet en: m rex Flctalib. «. 

alics cltucos in hojAtlo fuo^ et thefaurar^ garderob^ fuee qute c/i locus cz. 13. 

ckricis tantum afjj'uatusy qucC In Francis camera clericmum appellatvr. Thefaurarius. 
rr • • t r • \ » • r •!• r .., Gardcrobx. 

riuic enim thejaurario cur expens regis et jamiUa Ju.v committit\ q. 

cum clerko provid) Jibi ajjoclato pro controt^ latore rccordum habet ut in 

kiis q. ojicium fuum contingunt. 

Ojfficium the/, gardnob.-e ejl pccuniamt jocalia excmna. regifa^a re- Compotum re4- 

cipoe et reccpta rcgifque fecretn cufiodire, et dc receptls expens* facfre ^^'^' 

rationabiLs, exprnjarumque partis ulas inlreviare^ et dr. particulis comt> 

' • • ad fcaccnrium Jingulis annis in fejio Saii^/e Margaret. r abfque 

prccjlando^ eo quod de confdio regis eji jurat us ^ et unde prim* debet De confillo regit 

.._ :;:fic et apcrte comp* reddcrc de omnibus recen' feparatim per fe in j-'r^^"*- 

;.7.j rctulo. In alio atitem rotulo de expenjis cotidiants de quibus fen au- ^"^""^ cotnp* 

divcrit camp\ Jimul cum the/, et cmfcciofuo. hem de nccejfariis expenf. 

in quibus empticnes e quorum^ carta?ia et plura alia contincnt\ Item dc 

donis. Item de oblationibus et clrcmofynts. hem de vadiis militum. 

Item de vadiis baUJ}ai\ Item de fcod' forhiftcis. Item de prajiii' et 

cc omm.doi*. 

h^m dc expenf. gardeiob/€ in qnib* pannorvm^ pelure^ cere 

teie'^ et hujufmodi comprehenJuntur. Item de jvcalibus. Item de 

J. forinfccis^ in quibmdiverfi Qucranf in compot* reddendo Item de 

r.unctis. Item de falconar* . 

J7ief. autcm memora'.us convenire debet fngulis noSlibus fn. hfpitii^ ConTenIre fin- 

cimerar* conirot''latotem et chricum ejus, cojjiarium^ mar'' aula et hof gvi'is n'>£^iba». 

tl-.' ' r:i:!\'e(, mat ^ frvicntem et duos hojiiar' aula et hfiiar camera fer- ** "*""*• 

fncm ferculcrum^ pincernam, panetr* piflorem et clcricum eo- 

. ^ . - . . .^iLijrum^ q, de expenf, dietay viz. panisy vin'j et r^ • 'A ^'^Z-V- 

r*.r7, crp/torumj falisy fu^us^ cafei (t hujufmodi refpondebit. 

1 3 1 "f The Counting Houfe, &c. Cap. 1 9, 

Magidri Ccco- Ji^jn cluos viagijhos cnicrum^ lafcknaT\ f.okiar'^ fcuiellar'^ falfar^ eP 

jumclericusCo- clericum coquiiKe qui de elfdem officlh pro omnibus in eorum preffentia de 
^^'^^ ' expenj. lUius dict^e reddit raticnem, quorum omnium prcrfe^itia necejfaria 

eji. Item dcenifjinar'' ^ '^ajiitor^ fervieatem ad cvjiodinm fummar' ct carec- 
tarum depute tu n ei clericam de mare/c-alcia cum marefcalV frafiore equo^ 
rum^ qui qiiid('r,z clericus de expenf. ftni ci aven' lit ere fi aSfure (quorum, 
ft harnejie pro tquis et carctlis ac de vadiis Jervie?it' /cut if tr arum cleri- 
torum ef garc" rcfp07idehit^ cuj^ inter -Jffcire tarn de hi is qui de novo erunt 
admijji ad vad^ ^'^g^^i quam de vagantibus et in hiis vadia minuere et an- 
^ere. Vadia autem ahfentibus fine fpeciali pr.vcepto regis nifi ohfequio reg* 

tT f^^^^^^i minime concedunt\ pra^fentia autem coronatoris regis necejfaria erit 
^ «• in pleno comfotOj compcti auditores Juper foro frumenti tt aven. infiruet 
ei edocet qualit' proclarnat'' in eifdem parti bus per quod Jtielius fcire poffint 
quot panes cbolati fiere debent de quart* fritinent. quibus 07nnibus congre- 
gatis audire debettt expenf. et rationabilem compot' illius dietce. 

MarefchaUi autem de fupervenicnfibus debent inferiori mar'' tefiimonium, 
perhibcre, Ho/iiarius miles kofiiariis aliis de numero ferculorum Jarde- 
naj ', C0C9, camerar''-^ hofiari^ camer^ ^'^^'^7 c^ f<^ quilus alii et fc audiat*^ 
compoius dc tota dieta. 

And then followeth a defcription of the duties of the feverall 

officers abovefaid, worthy the readir.g. 

Artie, fup. Cart. The cofferer is in Fleta called ccfrarius of the coffer: becaufe 

cap, 2. he fhould have money in his cofer to pay wages, &c. as is afore- 

faid. It ir, enabled by theftatwte of 28 E. i. cap. 2. That all pur- 

* Counting veyours fliail account m the ^f houfehold, or in the wardrobe. Rot. 
liaufe having the par. 28 E. 3. nu. 34. no purveyour arreiled (liali be brought be- 
greeacioth. ^ ^^^^ ^j^^ councell, &c. but take his remedy by the common law. 
nn.'XA^ '^ ^^^ ^^^ ^^^'^*-^ P^^'- ^^ ^^^^ infiitutes, cap. Purveyours. 

* 6 E a ca " * ^^^ ^'^^ flatutes concerning purveyours, am^o 36 E. 3. cap. 2, 
5 4.&C. '*** 3> 4> 5i 6) ^c. But obft-rve that there is left out of the print the 

pain on the fleward, treafurcr, controller, and other officers of the 
houfehold atlhe kings will, for not executing the ftatute : which 
omiffion hath made thofe of the greencloth the bolder. 
Rot par -xSI. -. ^^^ ^^^^^ parliament it was alfo enabled, that the kings cariages 
»u. i&. fboidd be made iu as cafie manner as migln be, and that in the 

fummer, and other times convenient, as in Auguft (which is alfo 
left out of the print.) For the kings cariages fee Mag. Cart, cap 21. 
and the expofition upon the fame in the fecond part of the In- 

For the Wardrobe-, vide 15 E. 3. rot. per fe. 1 E. 4. ca. i. clerk 
of the wardrobe, Kot. pr.rl. 7 H. 7. the expences of the kings 
houfehold and wardrobe, i H. S. an aft concerning the great 
wardrobe. 3 Ti, 8. the aihgnment for the kings wardrobe. 39 Eliz. 
cap. 7. mafter of the wardrobe, whofe office is accountable in the 
exchequer. See W. i. cap. 44. what iiTues the kings juftices are 
to eftreat into the v/ardrobe : more of the wardrobe, Rot. clauf. 
33 E. I. m. 3, rot. liberatiojium, n E. 2. m. 4. To conclude, fee 
Rot. clauf. 18 E. 4. m. 13. where it appeareth that letters and 
writings concerning matters of Hate, which were not fit to be made 
vulgar, were inroUed in the wardmbe, and not in the chancery, as 
\k. infra, leagues were and ought to be, as it appeareth in 19 E.^4. 6. And 

thus much of the wardrobe being mentioned in Fleta. 

The officers of the countin2;-houre never held plea of any 

C A F, 

cap. it). 

Cap. 21. The Court of the Lord Steward. 133 

C A P, XX. 

The Court of the Lord Steward, Trcafurer, and 
Controller of the Kings Houfehold, concern- 
ing Felony by compafTing or Confpiracy to 
kill the King, or any Lord or other of the 
Kings Councell, &c. 

THEY have jurifdiiE^ion by a«5t of parliarrient, to enquire, 3 ir. 7. cap. 14. 
he.irc, and dcftermlne the faid offfiice, as particularly and at ^ part of the In- 
large apjiearcth in the third part of the Inftitutes, cap. Fclonv, ^'tutcs cap.Fc- 
by compaffing. or confpiracy to kill the king, &c. ' [^il^ :,\\"„'^^l: 

cy to kill the 
king, fo.67. 


The Court of the Lord Steward of the Kings 
Houfe, or in his i^bfence of the Treafurer, 
and Controller of the Kings Houfe, and 
Steward of the Marfhalfea, 

'np HEY have jurirdi<^ion by a£l of parliament to enquire of, 33H.S. cap.ia, 

-■• hear, and determine all treafons, n^ifprifion of trcafop.s, mur- Sec thcfl-atute 

ders, manllaughtf-rs, bloudfhed, and other malitious flrikings, tor the tmll ani 

whereby b'ood iliall he (bed in any of the palaces and houfes of ^X''.° "^^ 

the king, or in any other houfe where the king in his royall perfon Raftall pi. 124. 

lliall beabiding. And by that aft the * limitsand bounds of the kings See the third part 

palaces or houfe, or the houfe where the royall perfon is abiding, of tbelnftitutcs, 

are particularly and expreHy fet forth and defcribcd. In this and Jj. Mifprifion. 

like cafes we refer you to the flatute it fclfe, for compendia funt d'tf- •y^^^^^ 

f^i^' ' ca. 12."'" 



The Court of the Admiralty. Cap. 22, 

CAP. XXfl. 

The Court of the Admiralty proceeding accord- 
ing to the Civiil Law. 

Articidi Admiralifatis, 

ArtKXi^ Jfdmtra- 

The articles- of 

the admiralty. 
The proces ant] 
proceedings in 
this court are in 
the name of tlic 
iord admiralJ. 

The complaint of the lord admirall of England to the kings 
moft excellent majelty againft the judges of the realmc, 
concerning prohibitions granted to the court of the admir- 
ralty 1 1 die Febr, penidtimo die iertnini Hilarity anno 8 Jac. 
regis : the t^^Qz. of which complaint was after by hrs ma-, 
jeffcies comman5ement fet downe in aiticles bj doctor Dim 
judge of the admiralty; which are as followeth, with an- 
I'wers to the fame by the judges of the realme : wliicb they 
afterwards confirmed by three kinds of authorities in law, 
I. By ad^s of parliament. 2. By judgements and judiciall 
proceedings : and lafUy^ by Book cales. 

Tbt title of the 

% OitjeSiion. 

The Bvfvisr, 

The defer' ptlorr 
and limitation 
©f the (fea) 
wherein the lord 
admirall hatu 

Certain grievance,'; whereof the lord adrnirall- and his officers of the 

admiralty do efpecially complain, and defire redrefle, 

TH A T whereas the conufance of all contracts and other 
things done upon the fea belongeth to the admirall jnrifdic- 
tion, the fame are made triable at the common law, by fup-, 
pollngthe fame to have been done in Cheapfide,and fuch places. 
By the lawes of this realm the court of the admirall hath no 
conufance, power, or jurifdiclion of any manner of contra6l, plea, 
or querele within any county of the realm, either upon the lanrl 
or the water: but every fuch contratS:, plea, or querele, and all 
other things rifmg within any county of the realm, either upon 
the land or the water, and alfo v^^reck of the fea ought to be tried, 
determined, difcufTed, and remedied by the lawes of the land, and 
not before, or by the admirall nor his lieutenant in any manner. 
So as it is not materiall vvliether the place be upon the water infra 
fiuxum et refluxiim aquce \ but whether it be upon any water within 
any county. Wherefore we acknowledge that of contraft s, pleas, and 
qiierels made upon the fea, or any part thereof which is not within 
any county (from whence no triall can be had by twelve men) tb^e 
admirall hath, and ought to have jurifdiftion. And no prefident 
can be (lievved that any prohibition hath been granted for any con- 
trail, plea, or querele concerning any marine caufe made or dene 
upon the fea, taking that only to be the fea wherein the admirall 
hath jurifdiftion, which is before by law defcribcd to be out of 
any county. See more of this matter in the anfwer t^ the fixth 


X O/'iu'lioa. 

S.*e here^/ter m 
the proofg If 
judgcmenta ani 
judtciall pie£. 


Cap, 22. The Court of the Admiralty. *fi34 

When ataions arc brought in the admiralty upon bargains and 
contrarts made bcvond the feas, wherein the common law can- 
not adminiftcr jufticr, yet in thcfe cafes prohibitions arc awarded 
aaainft the admirall court. 
Bargains or contrn6Vs made beyond the feas wherein the com- 
mon law cannot adminifter jnftice (which is the cffe(^ of this ar- 
ticle) do belong; to the conftable and marfliall; for the jurifdi<J^ion 
of the admimll h wholly conhned to the ica, which is out of any 
county. But if any indenture, bond, or other fpecinlty, or any 
contraft be made beyond fea for doing of any act or payment 
of any money witliin this realm, or otherwife, wherein the com- 
mon law can adminiftcr juftice, and give ordinary remedy ; in 
diefe cafe neither the conftablc and marftinll, nor the court of the 
admiralty hath any jurifdiftion. And thereiorc when tiiis court of 
the admiralty hath dealt therewith in derogation of the coinmoa 
law, we fincJe that pi"uhibitions liave been granted, as by law they 

Whereas time out of minde the admirall court hath ufed to take 3 %'«^/«». 
Ifipulations for appearance and performance of the adts and 
judgements of the fame court: it is now affirmed by the judges 
of the common law, that the admirall court is no court of record, 
and therefore not able to take fuch ftipiilation:-; : and hereupon pro- 
hibitions are granted to the utter overthrow cf that jurifdic^tion. 
Tlic court of the admiralty proceeding by the civili law is no 1'he Anjwer. 
court of record, and therefore cannot take any fuch recogni- « 

lance as a court of record may do. And for taking recognifances 
agaijifl the lawcs of the realme, we findc that prohibitions have 
been granted, as by law, they ought. And if an erroneous fentcnce 
be given ia that court, no writ of error, but an appeale before cer- 
tain delegates do lye, as it appeareth by the ftatute of 8 Eliz. rcgzrur, S Elit. cap. 5, 
cap. 5. which proveth that it h no court of record. 

That charter-parties made only to be performed upon the feas are 4 OhjeS'um. 
daily withdrawn from that court by prohibitions. 
If the charter-party be made within any city, port town, or 1b< /ififtaer, 
bounty of this realm, although it be to be peiformed either upon 
the Teas, or beyond the feas, yet is the fame to h^ tried and deter- 
tniaed by the ordinary courle of the common law, and not in the 
court of the admiralty. And therefore when that court hath in. 
croched u{X)n the common law in that cafe, the judge of the ad- 
miralty and party fuing there have been prohibited, and oftentimes 
the party condemned in great and grievous damages by the laws of 
che realm. 

That the claufe of «ox objlante Jlatuto^ which hath foundation in his 

majefties prero<7ative, and is currant in all other grants, yet in 

the Jord adnurais patent is faid to be of no force to warrant the 

determination of the caufes committed to hiin in his lordfliips 

patent, and io rejected by the judges of the common law. 

Without all queftion the ftatutse of r 3 R. 2. cap. 3. 1 5 R. 1. 

cap. 5. and 2 H. 4. cap. 1 1. being ftatutes declaring the jurifdic- 

tion of the court of the admirall, rnd wherein all the fubie6ls of 

the realm have intercft, cannot be di/penfcd with by any nou ob- 

Jiaittc^ and therefore not worthy of any anfwer: but by colour 

thereof, th.e court of the admiralty hath contrary to thofe a^s of 

parli.iuient incroched upon the jur)r'''''^i'^n (^^ f'^^* ^^mmon law, 


5 Oijiff'Mt, 

1 3 R. 1. cap, J, 
ic R. 1. cap. 5, 
2H. 4. cap. J I, 

135 ^^^ C^"^^ of ^he Admiralty. Cap. 2ii, 

to the intolerable grievance of the fubje(?l:s, which hath oftentimes 
urged them to complain in your majefties courts of ordinary juftice 
at VVellm. for their fehef in that behalf. 

^Obje£lhn: To the end that the admirall jurifdiftion may receive all manner 

of impeachment and interruption, the rivers beneath the firft 
bridges, where it ebbeth and floweth, and the ports and creeks 
are by the judges ot the common law affirmed to be no part of the 
feas, nor within the admirall jufifdiclion : and thereupon prohi- 
bitions are ufually awarded upon actions depending in that 
court, for contracts and other things done in thofe places ; not- 
withftanding that by ufe and praflife time out of mind, the ad- 
mirall court have had jurifdiclion within fuch ports, ci'eeks, and 
*CbeAnJ'wer. The like anfvver as to the firfl. And it is further added, that 

for the death of a man, and of mayhem (in thofe two cafes only) 
done in great fliips, being and hovering in the inaine ftreame only 
beneath the points of the fame rivers nigh to the fea> and no other 
place of the fame rivers, nor in other caufes, but in thofe two only, 
the admirall hath cognifance. But for all contrafts, pleas, and 
querels made or done upon a river, haven, or creek, within any 
county of this realm, the admirall without quellion hath not any 
jurifdidion, for then he fiiould hold plea of things done within the 
body of the county, which are triable by verdid of twelve men, 
£ 136 3 ^nd meerly determinable by the common law, and not within the 
court of the admiralty according to the civil law. For that were 
to change and alter the laws of the realm in thofe cafes, and make 
thofe contracts, phas, and querels triable by the common laws of 
the realm to be drawn ad aliiul cxamen^ and to be fentenced by the 
judge of the admiralty according to the civil laws. And how dan- 
gerous and penall it is for them to deal in thefe cafes, it appeareth 
bv judiciall prefidents of former ages. See the anfwer to the firft 

Tbe 7 OhjcB. That the agreement made in anno dominl 1 5 7 v between the judges of 
the kings bench and the court of the admiralty for the more 
quiet and certain execution of admirall jurifdi(3:ion is not ob- 
^bc Anl ■ ferved as it ought to be. 

nj'Wi.n rjy^^ frippofed agreement mentioned in this article hath not as 

yet been delivered unto us, but havin^r heard the fame read over 
before his majefty (out of a papef not fubfcribed with the hand of 
any judge) we anfwer, that for {& much thereof as differeth from 
thefe anfwers, it is againft the laws and flatutes of this realm : and 
therefore the judges of the kings bench never alTented thereunto, a$ 
is pretended, neither doth the phrafe thereof agree with the tearms 
of the laws of the realm. 

Many other grievances there are, which in difcuffing of thefe for* 
mer will eafily appear worthy alfo of reformation. 
Tie jinfiver, 'pj-jjg ^j-ticle is fo generall, as no particulai' anfvver can be made 

thereunto, only that it appeareth by that which hath been faid, that 
the lord admirall his otncers and minillers principally by colour of 
the faid void non ohjianfe, and for want of learned advice have un- 
juitly inCroached upon the common laws of this realm, whereof 
the marvail is the leife, for that the lord admirall, his lieutenants, 
officers, and minillers have without all colour incroached and in- 
truded upon a right and prerogative due to the crown, in that they 


^ht 8 OhjtEi, 

Cap. 22. The Court of the Admiraltj^. 136 

have fcifed, and convcrttcl to their own \ifcs goods and chattels 
ofinfinitc vnliic taken by pinm*s at fca, and otlicr gords and chat- 
tels which in no fort apjxTrain unto his lordfbij) by his letters pa- 
tents, wherein the laid rton <>f>Jiavtr v^ contained, and for the whicli 
he and his ofhccrs remain accountable to his majcfty. Ami they 
now wanting in this blcded time of peace caufcs appertaining to 
their naturafi jurifdi«5lion, they now incroach upon the jurifdit^ioii 
of the cotnmon-Iaw, left they fliould fit idle and reap no profit. 
And if a greater number of prohibitions (as they affirm) hath beeii 
<Tanted fince the great benefit of this happy peace, then before in 
time of hodility, it "movcth from their own incroachmcnts upon the 
jurifdi<^ion of tlic common law. iSo as they do not only unjuftJr 
incroach, but comphin alfo of the judges of the realm for doing of 
juftice in thefe cafes. 

Touching our proceedings in granting of prohibitions concern- 
ing any of the laid articles, two things are to be confidered of. 
Firft, the matter; and fecondly, the manner. For the matter no- 
thing hath been done therein by your m.ajeftics courts at Well:min- 
<ler,^ but by good warrant of law and former judiciall prefident. 
And for the manner, we have granted none in the time of vaca- 
tion, nor in the temi time in any of our chambers, nor in the court 
in the terme time ex officio^ but upon motion made in open couit 
by learned conncelt, and alter a day prefixed, and warning given 
to the adverfc party, and upon reading of the libell in open couit, 
and hearing of the counceli learned of fuch of the parties as were 
warned and did attend. 

The faid anfwers are proved and confirmed (as is aforefaid) by 
three kind of authorities in law. Firfi", by authority of the high 
courts of i^arliament. Secondly, b^r judgments and judiciall 
prefidents. Thirdly, by book-cafes, and the authority of our 

Concerning the a6ls of parliament: it is ena(?^ed by the ftatute ^Bj am of per. 
made in 13 R. 2. ca. 5. That tlw admirals and their deputies ^'^"r^"^' 
(liall nst meddle from henceforth with any thing done within the •* ' ' ^* >* 
realm of England, but only with things done upon the fea, ac- 
cording to that which hath been duly ufed in the time cf the no- 
ble king Edward grandfather of king R. 2. By the which it is 
manifefi, that the jurifdi(flion of the court of admiralty is only con- { 137 1 
fined to things done upon the fea, which tlie adverfe party yeelded, 
but t;laimeth by a colour oi z non ohjlante^ ^c. which is utterly 
void, as hath l>een faid. 

By the ftatute of 15 R. 2. cap. 3. it is ena^Ved and declared, 15 r. 
That the court of the admiral! hath no manner of conufance, 
power nor jurifdic^ion of any manner of contrail, plea or querell, 
or of any other thing done or rifing within the bodies of the coun- 
ties, either by land or by water, and alfo of wrock of the fea, but 
all fuch manner of contrails, pleas, and querels, and dl other 
things rifing within the bodies of the counties .•-: well by land as 
by water, as is aforefaid, and alfo wreck of the fea fluU be tried* tcr- 
nuiu'd, difcuffed, and renudied by the laws of the land, and not M«t*, th«*loti 
before, nor by the admirall nor his lieutenant in no manner. N'e- a^imi^ail h«d\ 
veribclene of 'the death of a man, and of a may htm dons in great f'o"^^ ^.f/of* 
ihipfi, being and hovering in the main ftrean) of the great nvers the death of* 
OJily bencatli the points of t'lc Time rivers, and In no other place man, and may- 
J of ht«n, then ia 

oJier caiiu. 

137 The Court of the Admiralty. Cap. 22, 

of the fame rivers, the admiral (liall have conufance. This latter 
claufe giveth the admirall further jurifdicftion in cafe of death and 
mayhem, (with neither of which w6 ever medled) but in all other 
happening within the Thames, or in any other river, port, or wa- 
ter, which are within any county of the realm, (as all rivers and 
havens be, as hereafter fhall manifellly appear) by exprefle words 
of this a£t of parliament, the admirall or his deputy hath no jurif- 
cliftion at all. Wherein it is to be obferved, how curious the 
makers of this ftatute were to exclude the admirall of all manner of 
jurifdi6lion within any water which lyeth within any county of the 
&SI.4. cap. n. The flatute of 2 H. 4. cap. 11. ena^leth, That the faid aft of 
13 !]^. a. cap. 5. be firmly holden and kept, and put in due exe- 
cution, and further at the prayer of the commons that as touching 
a pain to be fet upon the admirall or his lieutenant, that the fta- 
tute and common law fliall be holden againft them, and the party 
grieved lliall recover his double dammages. By which a»fl it ap- 
peareth, that the flatute of 13 R. 2. is but an affirmance of the 
common law, as fliall alfo manifeftly appear hereafter. 

Which three a^ls cannot be difpenfed withall by a non oljlante^ 
as hath been laid before, but remain in full force, and hath been 
put in due execution in all ages. 
4^ El. cap. II. The fratute of 27 Eliz. cap. 11. defcribeth particularly the li- 

mits of the lord admirals jurifdi^tion in thefe words. All and 
every fuch of the faid offences before mentioned, as hereafter fhall 
be done on the main fea, or coafl of the fea, being no part of the 
body of any county of this realm, and without the precimfl, jurif- 
5 £li cap. 5. didion and liberty of the cinque ports, and out of any haven or 
pier, fliall be tried and determined before the lord admirall, &c. 
So as by the judgment of the whole parliament the jurifdi6lion of 
the lord admirall i.s wholly confined to the main fea, or coafls of 
the fea being no parcell of the body of any county of this realm. 

And by thefe four acts of parliament all the faid objeflions that 

have been made, or can be m-ade againfl the proceedings of the 

kings courts at Wefrminfter (being grounded on the fame) are fully 

anfwered. And we will conclude this iirll part with the faying of 

fobsS.S. 10. Ti. Qod himfelfe. Almighty God (as he hirafelf out of a whirlwind 

fpake) hath Unit up the fea within certain dores and bounds, (^uis 

conclufit ojliis mare^ quando erumpebat^ q^^^J^ ^^^ vulva procedens : cir- 

cumdedi ilhid tcrminis mcis^ et pofu't veSIem et cjila^ et dixi^ TJfque hue 

ven'ies^ et non proades amplius^ et li'ic ccnfringes tumentes flu^us ejus» 

%. By jud^ementi Concerning the fecond kind of proof, viz. by judgments and 

and judicial f re- judicial prelidents, every of them in all fuccelTions of ages in ferie 

Jidenn. temtorh, taking fome in every age for many that might be cited. 

Regift. Origin. Regiiter Origin, fo. 129. F. N. B. 114. If goods be taken 

fo. 129. F.N.B. from an Englifli man in Spain beyoi:d the fea, and the party can- 

114- not obtain juRice there, he flial have a writ to the flierlf to ^rrell 

the body Qi the offenders, and to feife of their goods to the value : 

which proveth that the admirall cannot hold plea thereof, for that 

f 138 3 the party hath remedy by the common law, and the admirals 

power is only fupcr ahum mare. 

aw. 6 H. 6.1 Hil. 6 H. 6. rot. 303. in the court of common pleas between 

Rot. 303. In John Burton plaintif, and Bartholomew Put defendant, the cafe 

^^"^' was this upon the faid ilatutes. The faid Bartholomew fued, the 


Cap. 22. Tlic Court of the Admiralty. ijS 

faid John Burton in the admirall court, before Thomas duke of 
Exeter tiicn ad nirall oi lingiand, for tluu the faid John Burton 
with force and urn*-; ihv- fecot^d day of September, anno i H. 6. 
thjcc fliips of tht faid Bartholnmevv with liis prisoners and mer- 
chandi/ei 1 1 the value o: 960 marks, 5 s. 5 d. cb. in the fame 
fliips bei; g 'id take nnd carrv away, fuppofmg by his libell the 
fam- to be x.\S^:\\ away, Jut^ ahum tnatCj upon the hic^h fea. Al- 
though the tiktig. afore. aid w^s ift/ra corpus corfirtatus in Bt'/ltnu (the 
faid mips lying in the haven or B.iftow) and not upon the high In Port^, 
fea, contrary t'> the form au'^l effcft of the faid ftatutes ; the parties 
-defcended t'> an iffue, which was found for the plaintif and dam- 
mages afleifc:! for the plnintif to 700. 1, And it appeareth by the 
record, that this being the firft cafe that we can yet find that re- 
ceived judgme^qt in the court of coinmon pleas upon the faid fta- 
tutes, the fame depended in advifement and deliberation eight 
terms : and then the record faith, Ef fuptr hoc auJlto tarn recordo 
quant verediclo trfedi^o^ et per curiam plenlus inteUefl' : confideratunt 
eft quod pi- ted* 'Johnr.nes Burt en tecitperet tei'fs'' prafat^ Bartholomceum 
damnafua prted'i/la occafone attachinmeiiti, prcfccutionis^ et vcxationis-, 
quam n-ijar^ m ft cu/iagiorum ad feptingentas lihras per juratores prad* 
Jfitpcrius njefi in dutlum per Jiatutum^ fcV. quee damna in dupio fe eX' 
tendunt ad mille et 400. /. et idem Bart/i. pcenam decern librarum 
frga dominrm regern nunc per idem Jiatut'' incurrat^ et capiatw^ et qucrens 
remittit 400, /. Upon which judgment four things are to be ob- 
ferved. Firft, that- -it is contempornnea expojitio, being made within 
twenty ye?rs of the making of one of the faid flatutes, and content- 
fonanea expofitio eft optima. Secondly, that albeit the faid three 
fliips with the prifoners and m.erchandizes in them lay in the ha- 
ven, inter jluxum et refluxum aqute^ and infra prlmos pontes^ yet tliat 
the haven is infra cotpus romitatus^ and that for taking of the Ihips 
and the prifoners, end merchandizes in the fame no fuft ought 
to be in the admirall court, but at the common law. Thirdly, 
that the court of admiralty hath no jurifdi(ftion but fuper ahum 
mare^ which is not within any county, for the record faith, that 
the faid three fhips with the prifoners and merchandize in the fame, : 

did lye infra comitat' Briftolia^ et non fuper ahum mare^ as the plain- 
tif in the admirall court fuppofed the fame to be. Laftly, that 
judgment fo folenmly, and with fuch advifement given, if it were 
alone, were fufticient to give full fatisfa^lion in this point : for 
judicium eft tanquam juris didum^ and judicium fro veritate accipitur. 
But to proceed. 

Pafch. J2 H. 6. rot. 124. a like a6lion brought by Robert Pafch. uRfi. 
Cupper upon the faid ftatutes in the court of common pleas (re- rot. 124. in banc 
citing the faid three ftatutes) againll John Rayner of Norwich, for 
that the faid Ravner did fue the faid Cup[)er in the court of ad- 
miralty before John countee of Huntingdon and Ivery lieute- 
nant to John duke of Bedford admirall of hngland, for that Rayner 
having a fliip in poitu aqurc Jememuthe infra corpus com* Noiff. ready In Partu. 
for a voyage to Zealand the faid Cupper entered the faid Ihip ly- 
ing in'the faid haven, and took away divers goods in tlie flinie 
})ein^, ajftrendo per pr/vdi^um ptaciium res illas fuper ahum mate 
rir.r'J:Ji^ a: ft res ilia fuptr a} turn nuire emerft/Jentt cum >ifm ibiy fed 
abudjnnemutham contra fern: a jn flatulorum pra:d'y which alfo provCll^ 
that the haven is within the bodv of the county. 

IV. Inst. M U 

J 3^ t The Court of the Admiralty, Cap. 22, 

In the fame tcrme in the fame court a like aftion between, 
John Widewell and the faid John Rayner, rot. 123. which with 
many others being to one effed we omit. 
* Mich. 31 H. 6, * Mich. 31 H. 6. rot. 315. between William Hore, and Jeffery 
rot. 315. in banc. Unton for a fuit in the court of admiralty before Henry duke of 
?r * ** ^^' ^ Exeter, admirall of England, concerning a contra6l of fonrfcore 
Cna proiii'b^ti'on P^""^^ Upon a charter-party of affrait of a iliip of the faid Jeifery 
ypon a charter- called the Trinity of Harflew to goe from the port of Pole * to- 
party. Hii. wards the parts of Ifeland, cum contranus ilk apjul novam Sarum infra. 
ij EJiz. rot. corpus ccmitaius^ et non fuper ahum mare fa^ us et Junius fuit, contra. 
410. r. . pen- j'Qj-jn^^ JlatutGrum pned' The defendant pleaded to iffue, which 
finite others ud- '^'^^ found againft him, and dammages affefled to a hundred marks, 
en charter-parl and cofts to forty pound : and thereupon judgment is given by the 
ties. court, that he fiiould recover his dammages in duplo^ according to, 
*[ ^39 ] the ftatute, &c. Which judgment direclly proveth, that if a 
charter-party or any other contraft be made within city, town, or 
county of the realm, though the performance thereof be to be done 
i^nd performed upon the high fea, yet the admirall hath no. jurif- 
difticn, bc:caufe it may be tried by the common law, as by the 
faid record it appeareth. But where the whole is tobe done Jiiper 
ahum mare^ and no part of it infra corpus comitatus^ the admirall hath, 
3- ^^' 8- ca. 14. 'Y\\t tlatute of 32 H. 8. c. 14. concerning fraights of fliips glv- 
eth to the lord admir.iU or his deputy power to make cei-tificate 
concerning the fliips of aliens in ports, &c. And if the lord ad- 
mirall or his deputy be not refiant, then it giveth'power to the cuf- 
tomer and controller, or their deputy to make certificate ; but 
■without qiieflion this giveth no power to the lord admirall to hold 
plea of fraights of fhips more then he had before, no more then it 
doth io the cufi;omerand controller, to whom equal! power is given 
by the a6t to make certificate concerning the fhlps of aliens, &:c. 
in the abfence of the lord admirall or his deputy, as to the lord ad- 
iK\\Xd\\ or his deputy being prefent : and yet no maii will afiirm, 
that the culiomer and coiuroiler can hold plea of fraights. 
Mich. 38 H. 6. Mich. 38 H. 6. rot. 36. cr. A premunire brought by John 
rot, 36. cr, CafTy efquire, Q«/, kijc. againll Richard Beuchamp, Thomas 
Paunce efqiiires, and others upon the flatute of 16 IV 2. for fuing 
in curia. Rcmana vel alihit of matters belonging to the comm<on lavv. 
For that the defendant did fue the plaintif in the admirall court be- 
fore Henry duke of Exeter, that the faid John Callye did take and 
carry away certain jewels fuper ahum mare^ uhi idem JohaiiJies CaJJye 
bona ilia apud Sjra ford at. Bowe infra corpir cc7nitatus Midd' et non 
fuper ahum mare cepit, which is fo evident, and of fo dangerous con- 
fequent, as no application fhalll)e made thereof. 
Book of entries. I" the book of entries fo. 23. tit. Admiralty, it appeareth that 
io. 23. ■ Xht taking of a fhip called the Trinity of London lying upon the 
river at E. in the county of Kent is v\ot. fuper altujn mare^ but iti- 
fra corpus comttatus Kanfi^. And therefore a fuit for the taking of 
that fliip lying there in the admirall court before John earl of Hun- 
tingdon admirall of England appeareth to be againfl the laid fla- 
tutes, and yet no queftion that taking was infra fiuxum et refluxum 
marts ^ et infra primes pontes. 
Book of entries. 9 H. 7. A premunire brought for a fuit in the admiral court be- 
»bi fufra. ^Qj-e John earl of Oxford for taking and carrying away quandam 
" ^ a naviculam. 

Cap. 22, The Court of the Admiralty. 139 

navj'r.'ihm apud Hortm Kry nt Sauthhn^ ^c. fiippofing the fame to 
be y.'/'.r altu.'ft marry where it was infra corpus comitatus, 

Mich 16 H. 8. rot. 140. The river of Thames at Iklin^f- Mich. i6H.I« 
gnte is not within tlje juriAhdion of the admirall, but infra corpus '"«• I40' 

35 H, 8. A prohibition to John Dudley knight, vifcount Lifle B^ok of cntrie*, 
for holding plea in the court of admiralty for a contrad made "'^ '"f^'^' 
ill rivi Uiamrjl-r^ Uippofina; the hmt to be fuprr nltum mnre^ 
wlicre in truth it was in rivo Tliamefite apud B. in com* EJftx^ which 
iiotA'ichniindiHg was infia jiuxum et rcjiuxum aquce^ et infra pi imos 


Hil. 36 f f. 8 rot. 38. cr. The like prohibition inter Wheler et Hil. 36 H. 8, 
H'armr.eoJem tnmno rot. fnter Tooly ct LavcSy a prohibition for a '°^* 38. cr. 
contrav't made at Danlike, in partibus tmtifinarinis. And in 2 Jac. Hil. 2 Jac. re- 
regisy the whole court of common pleas, becauie the libell fup- gis. In c-mmuni 
pofcd rhe ad to be don« in portibas exteris et tranfmarinis, granted ^/"'- '"'' '^^''°- 
a prohibition. I'l^T/^tv/ s 

Trin. 38 H. 8. rot. 126. between Crane and Bell a promife "Df/.Tr. ' 
made at Dertir.oiuh, thar a iliip called tlie Mary Fortune fliould 3SH.8. rot.126. 
j)-fle fufeJy without taking and furprifiiig. Sec. which fliip was after 
taken by the Spanysrds /^^vr al/uni niave is not determinable in tb.e f 140 1 

court of the adiiiiraK'y, for that albeit the taking was upon the high 
fca, yet the promile was made upon the land, whereupon an a^ion 
doth lye at the common law. 

Tr. 3 & 4 Ph. and xMar. rot. 709. between Lawrence Maflie- T/' ' ** ^ f ''• * 
rode, and Richard Wyn, a prohibition out of the court of com- ;„ "anco' '^' 
mon plctis to the court of the admlialty, William lord Howard 
then lord adminll bein-/. 

Tr. 3 & 4 Ph. and Mar. rot. 8t r. the like prohibition sranted Eodem tcrm'no 
nut of the fame court to the Cvr.Kt of admiralty between Robert rot. 181. in banc. 
Inne plaintif, and Roger Garlind defendant. 

Hil. 4 & 5 Hi. and Mar. rot. 831. the like prohibition. JJ''- 4*: 5 P. Sc 

Many are tlie prefidents in the roii^n of the late queen Eliz. in * ^°'* *^*' 
the court of co-nmon plras, the kings bench and excl^equer, 
wliich wc purpofcly omit, and infift rather upon the more ancient, 
yet one or two we will remember concerning things happening be- 
yond fea, whereupon an a«ff ion did iyc at the common law agreeable 
with the prefident in the reign of H. 8. 

Mich. 39 &c 40 Kli/. rot. 3 1 v;8. A prohibition out of the court I^Hch. 39 ic 40 
of common pleas for a fuit in the admirall court upon a bill under ^'- '*»^ S'S^- 
the parties !)ai:d and fcal for French crowns, for that the bill was 
made beyond fe.i. 

And Mich. 3 Jac. a prohibition was granted in the like cafe to Y^^- 3 Jac la 
the admirall court by the court of efclicquer.forSirJohn Swinarlon '""*''• 
having the priviledge of that court for a matter rifing beyond the 
(t^. And divers prohibitions granted alfo in the like cafe in the 
kin^s bench. 

For caufes of aaions which are tranlltory done out of the See in the ch apt. 
realm, an adion may lye at the common law^ but if the cnufe be th«-c'i:W» .bk " 
cnminall or locall done' bevond fea, then before the con liable and andMarfhJ.' 
iHarfliall only. 

Concerning the lad manner of proof, viz. by book-cafes and 3. ffy *!•* m/tt 
authoriiies ol our booki, "" ^ "'tit^ritiu i» 

M 2 In ^«'' 


Temps E. i. A- 
vowry 192. in 
foramuni banc. 

8 E. 2. tit. 
ron. 399. 


43 E. 3. 

Vui. 5 E. 3. 3. 

Pafch. 17 El. in 
fc iccario. 

■ [ HI ] 

E. 3. 3. 

46 E, 3. tit. Co- 
nufans 36. 

7R.a. Tref- 

riffe in Sta- 
thom pi. 5^ 

The Court of the Admiralty. Cap. 22, 

In the Regifter the mod ancient book of the law, fo. F. N. B. 
fo. 87. I. & 88. F. 

In temps E. i. t't. Avovvry 192. a replevyn was bronglit for 
the taking of a Ihip in the coaft of Scarborow in the fea, and for 
carrying the fame from thence into the county of N. Mutford 
the plaintif counteth of a taking in the coaft of Scarborow, which 
is neither town nor place, out of which a jury may be taken, for 
that the coaft is four miles long, and alfo of a thing done in the 
fea, this court hath no conufance, for certain judgement is given 
thereof to mariners. Berry chief juftice of the common place j 
the king wiileth, that the peace be as well kept on the fea, as 
on the land, and we find that yon are come hither by due procelTe, 
and tlicrefore ruled him to ani'wer. Out of which four things are 
to be obferved. Firft, that it is called the fea which is not\vith- 
in any county from whence a jury may come. Secondly, that the 
fea (being not within any county) is not within the jurifdiction of 
the court of common pleas, but belongs to the adrnirall jurifditlion. 
Thirdly, that when the ftiip came within the river, then it is con- 
fefTed to be within the county of Northumberland. Laftly, that 
when a taking is partly on the fea, and panly in a river, the com- 
mon law fnall have jurifdiflion. 

8 E. 2. tit. coron. 399. It is no part of the fea, where one may 
fee what is done of the one part of the water, and of the other, 
as to fee from one land to the other, that the coroner fhall exercife, 
his office in this cafe, and of this the country may have know- 
ledge ; whereby it appeareth that things done there are triable by 
the country (that is, by jury) and confequently not in the admirall 

43 E. 3. Norff. as the faid lord Dier voucheth the record in 
Mich. 15 & 16 El. faying (quod vidi) the cafe was, that the abbot 
of Ramfey was feifed of the mannor of Brancafter in Norf. bor- 
dering upon the fea, upon ftxty acres of marfli of which mannor 
the fea did flow and reflow ; and yet it was adjudged parcell of the 
abbots mannor, and by confequence within the body of the county 
unto the low water mark. 

And it was adjudged Pafch 1 7 El. in the exchequer, Diggs be- 
ing plaintif, that the land between the iiowing and reflowing of 
the fea belonged to the lord of the mannor adjoyning, as the lord 
Dier doth there report. 

48 E. 3. 3. If a mariner makes a covenant with me to ferve me 
in a fliip upon the fea, yet Ji loimr nefoit pay, it fliall be demanded 
in this court by the common law, a ne per la ley de manner. 

46 E, 3. tit. Conufans 36,. An aftion of trefpa.Te was brought 
for taking of a fbip in t'he haven of Hull again ft certain perfons ; 
the maior and bailifTes of Hull demanded conufance by the charter 
of the king granted unto them, that the citizens and burgefles of 
fluU fhould not be. impleaded alibi de aliqiiihus tranfgrejjionihus, cott' 
ventionihiis et contra^ibus itifra biirgum, ^c. quam infra, hir^um. And 
the conufans was granted ; which proveth that the haven of Hull 
where the ftiip did ride was infra burgiim de Hull, and by confe- 
quence infra corpus comitaius, and determinable by the common 
law, and not in the admirall court. 

7 R. 2. tit. trefpajfe in StatJiom, pi. 54. In trefpafTe for a ftiip 
and certain merchandize taken away (which trefpaife muft of ne- 

, ceiHty 

Cap. 22. The Court of the Admiralty. 141 

ccflity be allcdgfd in fomc town and coutify in fomc river or 
haven) the defendant pleaded, that he did take tliem /// k haut mere 
nvcUs Nurmnm qurux Jont enemies U roy. And it is ruled a good 
pica, which concurrcth with the other books. 

7 H. 6. 22. 35. An a^'tion Heth at the common law for fore- 7 W. 6. 2: - 
fiallinij, &c. in a port or haven, for thnt it is infra corpus comitaiusy 
and triable by the common law, and by conl'equence the admirall 
liath no jurifdii^'tion there. 

19 H. 6. 7. The Ihtute doth reftraine tliat the admirall fhall not 19 H. 6. 7. 
hold plea of any thing rifing within any of the counties of the 
realm, but executions he may make upon the land. And therefore 22 AfT, p 93. 
where it is faid in 22 All', pi. 93. that every water, which flows 
and reflows, is an arme of the i'ea, yet it followeth not that the ad- 
niirall fliall have jiirifdiflion there, uniefie it be out of every 
county, or elfe fuch a place whereof the countrcy cannot take 
knowledge, as it appeareth in the book of 8 E. 2. before cited. 
But of this more hereafter. 

Fortefcue, cap. 32. fo. 38. Nam Ji qua fiiper ahum mare extra Fortcfc. cap. 32. 
corpus cuiujltbet ccmitatus regni illius fiant qucC pojlfnodum in placito co- fo. 38. 
rarr: aii;nirnl!o AngVur . deducantur per tcjles^ ilia juxta legum Anglit:e 
Jandimes terminari debcnt^ which proveth bv expreffe woitIs that the 
jurifdiclion of the admirall is confined to the high fca, which is not 
within any county of the realm. 

2 R. 3. fo. 12. Hibernid funt fuh admirallo AngliiC de refada fu- a R. 3. 12. 
pn- ahum mare^ which agreeth with the, viz. that the jurif- 
diction of the admirall '\^ fuper ahum mare. 

Stanford, lib. i. pi. cor. fo. 51. b. If one be flaine upon any Stanf. pi. cor. 
^rme of the Tea-, where a man may fee^the land of the one part and ^^- 5^' ''• 
ot the other, the coroner fhall inquire of this, and not the admi- 
rall, becaufe the country may take conufance of it, and doth 
vouch the faid authority of 8 E. 2. whereupon he concludeth in 
tlKfe words. So this proveth, that by the common law before the 
(btute of 2 H. 4. &:c. the admirall had no jurifdie^ion but upon 
the high fea, which only authority were fufhcient to overrule all 
the faid queftions. For hereby appeareth, that the jurifdi(^ion of 
the admirall is only confined by the common law to the high fea, 
»nd agreeth with all the former book cafes and aifls of parlia- 

4 & 5 Ph. and Mar. DIer 1 59. b. By the libell in the admirall 4 & 5 Ph. dni 
court the caufe is fuppofed to commence fur le haut mere et infra ^*''- Dicr 159. 
rtrifdidionem dd admiralty ubi revera faffa fuit in tali loco infra cor- 
us comitall/s et non fuper ahum mare. Whereby it alfo appeareth^ 
that the lord admirals power is confined to the high fea. 

Pafch. 28 Eliz. in the kings bench the cafe was, that a charter- p^^h. a8 BUx 

party by deed indented, was made at Thetford in the county of 

Norfolk, between Evangelifl Conftantine of the one party, and 

Hugh Gynne of the other part, by the which Conftantine did' cove- 

mt with Gynne that a certain * fliip fhould faile with merchan- 

.'zes and goods of Hugh Gynne to Muttrell in Spaine, and there 

Mould remain by certain dayes, &c. Upon the breach of which 

)venant Gynne brought an action of debt of 500 1. upon a claufe [ 142 ] 

■\ th: fame charter, and alledged the breach of the covenant, for 

lat the fliip did not remain at Mutterel in Spaine by fo many 

yes as were limited by the covenant. Whereupon ifFuc was 

M 3 taken 

142 The Court of the Admiralty. Csp. 22* 

taken and tried before Sir Chrlflopher Wray chief juftice of Eng- 
land, and found for the plamtife : and in arreft of judgement it 
was fliewed, that this ilfne did rife out of a place totally and mcerly 
in a forein kingdonie out of the reahre, from whence no jury of 
twelve men could come, and therefore tlie triall was infufiicient. 
But it was adjudged by Sir Chr'fffopher Wray, Sir Thomas 
• Gavvdy, and the whole coi:rt of kings bench after great delibera- 
tion that the plaintife (l^onld recover 500 !i. bciides his damages 
and coils, for that the charter party whereupon the action is 
brought was made at Thetford within this rcahne, and that the 
triall being in the fame place where the ad ion was brought was 
RJIch. 30 & 31 And the like cafe was after adjudged in the fame court, Mich. 
£hi. corjniiegc. ^q & ^ i Eliz. in an action upon the cafenpon an affumpfit ground- 
ed upon an inftrumcnt called a policy, commonly made between 
iPicrchants for affurance of their goods, whereby the imdertaktr did 
affume that fuch a fliip fliould faile from Melcome Regis in the 
county of Dorfet unto Abvilc in France fafcly without violence, 
!kc. and declared that the faid fliip in failing towards Abvile, 
that is to fay, in the river of Somne in the realme of France was 
arreftecl by the French' king, &c. whereupon iflue was taken 
and tried, where the aft ion upon the affumpfit was brought, and 
againe the validity of the triall newly queftioned, and in the end 
rcfolved ^and adjudged as before; wdiich judgement proves, that 
where part of the contraft: or other thing is made in any place 
within any of the counties of the realm, though the performance 
thereof be upon the high fea, th.e triail and determination of the 
whole aft belongeth to the common law, and confequently the 
court of the admiralty ought not to deale therewith. 

Thefe anfwers being delivered to king Jan;es, magna eji Veritas et 
'ThUngsprero' Now for the great prerogative and intereft that the king of 
gaiivt of tbe jeat England hath in the feas of England, and for the antiquity of the 
^l' ■ ■ f court of the admiralty of England, and of the name of the admirall, 
becourt7ad' ^e have feen an ancient and a notable record, intituled, De fupe- 
miralty long be- rioritate maris Anglic et jure officii admiralitatis in eodem. * So much 
fore the reign of whercpf as wc finde in archivis regis, we will tranfcribe de verbo in 
E. 3. in -whoje rjerbum, as it is in the record it felf. 

(tap fome have 

dreamed it began. * In archivis. in Turri London, 

This caufe was ^ v:us feignieurs auditors deputes per le rois de Englitcrre et de 

handled in or Trance a redreffer les damages faits as gents de lour roialmes et des au- 

about J^^^J- ^^ f^fs fares fubgits a lour feignuries per mer et per terre en temps de pees 

by*divers parts et de treives. Mon/irent les procurows de prelats et nobles^ et del admi" 

of the record it roll de la mier d'Engliterre et de cominalties des cities et des 'uilles, et 

appeareth. ^ dds merchants, mariners, mejjagiers, et pekrins et des touts aultres du 

Admirall of the ^-^ royalme d'Engliterre et des aultres terre s fubgits a la feignurie ' 

fea of England. ^^ ^.^ ^^^ d'Engliterre et daillours fico?Ne de la vimine de Genue, Ca» 

teloigne, Efpaigne, Alemaigne, Sdand, Hoyland, Frije, Dennemarch, et 

Ncrzvay et de plufours aultres lieux del empier, que come les roys d'Eng* 

Time out of Ittcrre per raifon du dit royalme du temps dont it ny ad memoir e du con-^ 

n>Inde. ^^^^/^ euJJ'ent ejl en paiceable pojefion de la foveraigne fcignwie de la 

Lawes, ftatutes, ^^-^^ d^Engliiere et des ijles ejieanis enyceleper ordinance et ejiablicanent 

a»d ordinances. ^^^ ^^^^^ ejiatuts, et defcnfes . ct des vejcaux autrement 


Cap. 22. The Court o^the Admiralty. *I43 

^^ftrvtrs (ftte vejfcaux Ai merclianJ'fe et tic frurte prmthr ft fauve ^ardi 
Joner at txtu cas que mtjiur fora ct par onJinauce entrg tcut mantre tUs 
^enti taunt J.iutreji^tmrie crime tie lour propre dr tons * auLrrsfaitz neccf^ 
ftvies a litgnrti,' Je pces^ droit ure et etjuitie par el^ttques pajfanti et per 
fnuvanj^ garde et toute tnanere de conifance et ju/lke hauUe et bajje 
fur IfS i/ifet Ich^ ejiatuts^ orJennnces ft defrnces^ et pur touts autres fails 
^urux a U ^ovanvifut dcfowwraigne fcipiurie nppirttnir purrent es licux 
fivandlt^. Et A de /? admit all dc la d'lt mier drputey per Ic roy d^Eng- 
liter ey ct tous les auhres admirals par mefme ctlui ny d'Englitcre et ccs De Botertort, 
aucefers iades royes d'Englticre eujfnt eji ev paifehlc pojfeffim de la dit jdrci"" "^ »«»« 
fiuveraigm gart-e we la conifance et juflice ct touts Ics au'trcs appurte- Note for the an- 
fiances avatitditzforprife en cafe dappele et de qutrelc de eux a lour tiquiiy of the 
fouveraigtics rcys d' Engliterc de defalte de droit on de mahals judgement^ ;idmirall of 
ft rfpccialmcjit pur empechement metre ct jnfitce faire feurte prendre de England, The 
la pees de tout manere de vents ufants armes en la dit mier ou menans . ^^.'^'i, 

tiiejs aultremcnt apparretUes ou garnics que nappertitnt au nifj de mar- ^f ^^^ i^^ coaft- 
c'hcmts et en tcuts auhres points en queux Jiomtne poit avoir reafonahle jng upon Yar- 
catfe de fufpition vers eux de robbery^ ou des aultrrs mesfaitz. Et come mouth in Nor- 
le maifirc de niefs du dit roialme d Englittre en abfence des dits admirals ^°^^ («"'ght o»cr 
eufftrtt cfte en paifble pofpf/ion de cvnuflie et juger des touts fait s en la ^pj' "f ti^a'lla- 
dlte miei- entre touts mantre de gents felone les lois eflatuts et les defenfes^ tion in anno 
franchifi et cujluiv.cs. 22 E. i. 

Et come en le primer article de laiiliance nadgaires fait entre les The league le- 
dites rois en les ttaites fur le darreine pees de Paris foient comprlfes les twcen E. 1. and 
paroles que fcnfuiev.t en unefedule annexe aycefc. ^^^ French 

Priinerm».nt il eft traite et accorde entre nous et les mrffngers et les "2- 

frocurours defurdiz. at mm des dits roys que yceux rqysferront Inn a lau- 

tre defores en avant bons verrois et loyaux amyes et eydans countre tout 

hommefauue lefglife de Rome en tiels manere que Ji rfcun cuplufours qui- 

cmiques ilz.fuif)}nt vcloient dtpontictr^ empefcher^ cu trotibler les dits 

rrys en franchifes et liberties^ priviledges es droits, es droitiires, ou es 

cuflumes de eux et de lour roialntes quils foront bons it loyaux amys et 

aydans countre toute liomme que puijje venire et mcrir a dfendre^ gardir 

et maintenir les franchifes, les liberties, les privilege s^ les droitXy les 

dtoituieSf et les cufivmes defufdites, except le dit roy d'Englitere monfeur 

yohn due de Breban en Brabant et fcs hcires dtfcendus de lui et dc la 

fide le roy Denglitere, et except pur le dit nofire f'igmor le ny de France Margaret the 

excellent prince Duhert roy d' Alemaigne fes heires roy d' Akmaigne, et ^^^^^ daughter 

mourfiettr Johan counte de Henan en Henan. et que lun ne ferra en ccn- ° *. *,' .**J , 
r I r 1 I • / zT 7 t "larrjea to John 

Ja/le ne en aide ou lautre per de vie, membre, ejfate ne honour tempor el. the duke of Bra- 

Morfi^ur Reymer Grimbald. maifre de la navie du dit rty de France que bant an. dom. 

fe dit eflre admirall de la dit mier depvtey per fon feignior avant dit pur 1^9°' *f »8 E. r, 

fa guerre contre les Flemings apres le dite alliance faite et affirmee con- MvinfierRaymcr 

tre le forme et ta jorce de mejme lalliance et lintcnfiofi de ceux qui la tcrof the Fienck 

frent loffice del admirall en la dite mier Denglitere par commifpon du dit navie. 

roy de France torfeoufement empriji et ufa un an et plus en pernant le gents 

et marchants du roialme d^Englitere et daillours per la dite mier pafjaints 

ovefque lour biens et les gents ainfi prifes liver a a la prifon de fon dit 

feigniour le rcy d: France lour biens et a les refceivors per 

me/me eeluy roy de France a ceo deputey en les ports de fon dit royalme 

CMte a luy f of ait et acquis fijl amener per fonjuggement et agcnd, et la 

prife et detenue des dites gents ove lour dites biens et manharjifes et fon [ 144 ] 

dit juggementy et agar d fur la forf^iiturc de eaux et acqueji ait jujlifie 

dtvaot v^usfeigneun auditors en efcritts per nty lautoritic defa dite com- 

M 4 mi/Jicn 


The Court of the Admiralty. - Cap. ii. 

viiffion fur Vactmiralte nvnnf elite per hi ainjl nfurpe et per tine defenfe 

comuntment fait per le roy ci'EfiiJitere ptr my fan poer lelonc la forme de 

le tiers article de lalliance avantdite qui conticvt Its paroles defifecripts 

en requerant que de ceo il en fitjfe quita ct ahfo'uts en grand damage et 

prejudice du dite roy d' Englitere et da preiots if nobles et aultres defuf- 

nomes. Purquoy les dits prccurours et les noms de lours dit% fign'oin s a 

vous feigniours auditors avantditz pryent que dcVnnrance dfevce et liajiitie 

des dites gents ovefq; lour liens et marchandifcs anf trifes et dttenues 

The admirall of faicets efre fait al admirall du dit roy d Encrlifne a qui la conilhice 
England to - -^ .- . . . - - ^ ^> . */ J 

viiom the conu- 

fance appertain^ 


treijit a faire due fatisfaBion a touts les dits dmnages fa-cant come it 
pirra fuffre et en fa defalte fon dit feignior le roy de France per que il 
efoit deputey al dit offce, et que apres dcvje fatisfaHion fait% as dits 
damages le dit monfer Raymerfoit fi duement punis pur le hlemiffemeni 
de la dite alliance^ que la puniJ?on de luy foit as aultres example pur 
temps a venir. 

Item in alio rotulo 

Annnirall of 

It em J a la fin que vcnes et con fit. res les fames des proces et lei 
letters ordenees per les confailbis le aiel noftre feignicr le roy, (ffc, efpe.' 
cialment a retenir et maintenir le fouvci'aign cue fs dits auncefers roys: 
d* Englitere foloyent avoir en la dite mier d'' Englitere quant al amend- 
ment declaration et interpretation des loix per eux faitcs a gwerner touts 
matter es des gents paffants per la d te mier. Et priinerement a fon ad- 
mirall et as maifers et inarinm da nifs de Cync ports d^ Englitere, et 
des autres terrcs annexes a la cor one d' Englitere emtndant a fa armee en 
la dite mier pur retenir et maintenir la garde des I is avantdifz, et la 
pnwffon de touts fait-z. al cncoiinire en la mier fuf dite. 

Item in alio retido de articulis fuper quihus juflitiarii domini 
regis funt confulendi de anno regni regis £.3. 12. 

Item ad fincm qmd refumatur el continuatut ad fuhdttorum profecu- 
* E. i.avus E.3. tionem forma procedendi quondam ordijiata et inchoata per * arvum do' 
mini nofri regis tt ejus cotfliutn ad retinendum et confervandum anti^ 
quam fupervjitatem maris Anglia, et nos officii admiralitatis in eodem 
quoad corrigendum, interpretandum, declarandum et confervandum leges 
et fatuta per ejus antecefj'ores A7iglia reges dudum ordinata ad confer- 
'uandwn pacem et jufiitiam i?itef omnes gentes nationis cujufcunque per 
?nare Anglia trajifeuntes, et ad cogmfcendum fuper omnibus in con' 
trarium atte??iptatis in eodem, ct ad puniendum delinqucntes et dajnna 
paffs futisfaciendum, Qucs quidem leges et fatuta per dominum Ri- 
chardum quondam regem Angli<£ in reditu fuo a terra fanHa correSla fuc' 
runt, intr.rprctata et in infula Oleron public at a et nominata in Gallica 
lingua. La ley Olyronn. 

And long before this king Edgar in his charter faith thus : Mild 
concefjit propitia divinitas cum Anglorum imperio omnia regna infularwn 
oceani cumfuisferociffmis regibumfquc Norioegiam ac maximum partem 


R. I. 

Infula deOIyron 
in Gallia. 


?ee this charter 
in the epiftle to 
the 4 book of 

Cap. 22. The Court of the Admirahy. 14J 

Hi'>a-n':,e cum Jua nohll\Uima civitate Je Dul/lina Jnglorum regno fuhju' 

We have alfo found a record in lo E. 3. in t'aefe words. . 

RexJilr'io fi fiJfli fuo Gnl/nJo J( Say a^miralhjiotcejua' navium f^g , °^,^ 
iih ere .: /;> vcrjf, partes occideuiales^ falulein. Cum nufer 

vch'is pa- ■ ^r vtaniUvnlmus quod vos una cum quihu/dofn na- 

viius dr ■■' ■ nojh'ts quas dc ^erra pro ohfequio mjlro muniri 

(t parar: a tnare proficijl\rcmini ad obviand^ ettcJiJIcruP '^ ■ 

(jjiLu/Jum ^aLis tn dfi^rfu pmiibus exirris p^oviJIs et Itj/n'mibus arma^ 
tis muni f is qUit' ad partes dominii nojiri ad gravand' ms ct gentes nojlras^ 
\*el ad partes Scoti^e in inimlcorum mfiromm ibidem fucctvfiim div.rtere 
Mt accepimus proponibant. Et quia jam nobis ab aliquibus ejl relatutn 
quod gale.€ hujujmcd: ufqiie ad nutnerum 'uigiijfi et /ex ad partes Britau* 
et Norman* noviter accejftrunt et ibidem adhuc fe tcncnt ad mala^ ut 
credit ur^ contra nos ei nojlros qua: poteruni perpetrand\ vel adfuccurrcnd^ 
Jiff it nojiriry ut padtcitufy inimicis. Nos advertcntcs quod progeni- 
tores mfiri rcges Angliee domini maris /inglic^ani chcumquaque et etiam 
dffenfircs contra hojilum invajiones ante Juec tempera extilcrunt, et pluri' 
mum nos tiedtrct^ Ji honor no fter regius in defenjiofte hujufmodi nojlris (quod 
ohjit) deperiat temporibus^ aut in aliquo minuatur^ cupientefque hujuf- 
modi f>ericu:is auxiliante domino obviare^ ac falvationi ac defenjicni 
regni et pcpuli nofirmum provider e, malitiamque hojilum nojlrcrum re^ 
frenari : vobis in fide et ligeancia quibus nobis ajlriffi tjiis, et ficut 
de vobis fpecialiter ccnfidimus^ mandamUs firmiier injungcndo quod Jia- 
tim vifis prafentibus et abfque ultcriori dilatione naves portuum pra- 
diffwum^ ac alias naves qua jam par atie exijlunt Jupra mare tematis^ 

And becaufc the reader by this record fliall difcern, that of 
ancient time there were feveral adinirals (for the wifdom of 
thofe dayes would not trull one man with To great a charge, nor 
any man to have a certain eftate in an office of fo great truft). 
I will briefly give the reader fuch light thereof as I Iiave found of 

Rex commJfit Galfrido de Lucy maritimam Anglia cujhdiend'* quam- Rot. pat. aano 
diu domino regi placueiiti &*<:. * "■ 3» 

Rix commtfii Rjchardo Aguillum marinam regis Ncrf. et Suff". ^c. Rot- pat anno 
^amdiu nobis placuerit. 9 W« 3* 

Petrus de Rival capitaneus Piffanic fiabet ad totam vitam fuam cuf- Ror. Car. 
t^diam omnium portuum et totius cojler.'e marine Angliee^ excepto portu de '5 ^- 3- 
Dofwr^ qui eji in cuflodia Huberti de Bur go. 

iy\Uielmus dc Liybourne conjlituitur capitaneus nautaium et marina' Rot. Vafcon. 
riorum de regno et potefiatis regis^ quamdiu regi placuerit, *^ ^- '• m. 8. 

IViUielmus de Leybourne admtr alius Anglii^. Rot. par. 23 E. j. 

IV^illielmus de Leybourne capitaneus marinariorum, ^c. 2 parte pat. anno 

To let you know what we have obferved in thofe times : there J,5 E- \- m H- 
were alfo two other, the one had the government of all the fleet „,,^"g"* 
from the mouth of the Thames weftward, and the other from the 
mouth of the Thames northward. 

Johannes Botttort cujlos regis portuum maritlmorum verfuf partes b?* i parte pat. 
reales. 25 Martii. asE. i. m. 9. 

Nichxdaus Kyriell cwftituitur admlr alius fiite omnium naxium nb ore i parce p.^t, 
aqu/e Thame/is tarn quinque portuum ^ quam aliorum portuum et locorum »o £• >• 
per cofieram maris verfus paitrs occidentnhs^ quamJiu rij^i pluuait* 
T^e lege apttd Turrim London 8 Decembris. 

F hrtn 

146 The Court of the Admiralty. Cap. ^2. 

Clauf. I 5 E. 2. 
par. 15 E. 2. 
Tefte rege apud 
Ebor. 19 Mail. 

j£. 3. m. 21. 

Robertus de Leyhoi n admir alius quarundam navhim regis fiif mare oc- 
Rohertus Baftayli admirallus flotce ■navium ah oi'e aqutv Thamejis d-'. 
JinguUs per tubus 'verfus au/lrum. 
" Johannes Perbrome co?iJlituiiur capitaneus^ ct aJmir alius flctie navium 
magnce Gercmuthe et omnium allorum locorum ab ore aquce Thamejis 
per cojteram maris verfus partes loreales^ quamdiu, ii^V. Tejle rege 
ipartcpnt. anno j. apud Stamf. 1\ Aprilis. 

Warrojius -de Valhignes co7iJlitintur capitaneus et admirallus fi:t.^ na- 
vium ab . re aquce Thamefis tajn quinque por'tuum qunm alicrian par- 
tuum ei I corum per cofieram maris verfus partes occidenlahs^ quam- 
I diu^ ^c. ut fvpra. 
r Pctnis Bard cidmir alius navium ab ore aqu<£ Tliair.efs verfus partes oc- 
% parte clauf. \ cidentales, 1 8 Augufti, 

rz . 3. in or . < Thomas de Dray ten admirallus ah ore aquce THrMcfs verfus partes i>o- 
L realcs, \'^ Aug'ufi. 

And fo in the reigns of R. 2. H. 4. H. 5. H. 6. But in thefe and 

in former times there was a great admirall of England, vid. fupta 

pa. 142, 145, 144. 

Kot pat. anno y^g ^mg did by charter conftitute John Holland duke of Exeter 

itiiA'^^ * ^"<^' Kenry his fon to be admir alios Anglic, Hlhcmiie^ ct Aquitania\ 

pro termino visdr. 

This charter being of a judiciall office and granted to two, we 
hold to be void : for fuch ancient offices mull be granted as thev 
formerly have bfeen. This duke is he that is mentioned in the for- 
mer records, who being a great peer of the reahn endeavoured to 
incroach u; on the common law, but the fubjec^s by courfe of law 
were defended and recompenfed. 
Rot. pari. 7 H. 4. The merchants, maiiners, and owners of i^hips undertook the 
**"• j9» ^f>- ^c. fafcguard of tiie feas for the fublidies of tunnage and poun- 
9 H aHu. 10 ^^&^' ^^' ^"^ ^^^^^ merchants fliould name two perfons, the one 
for tne Touth part, the other for the north part, who by commif-. 
fion fliould have the like power as other admirals have had touch- 
ing the fame. 

Addition of feme Reccrds of ParliamenU 

tiH. 4. nu.24. All fiatutes made concernino- the court of the admirall fliall be^.,7R.2. obferved. 

viu.!-]. II H. 4. Sundry towns of the weft: part prayen remedy againft the offi- 
nu. 61. ' cers of the adnnralty for holding plea of matters determinable by 

the Common law, the which they pray may be revoked : the kings 
anfwer was, The chancelor by the advice of the juftices upon 
hearing of the matter fhall remit the matter to the conimon law, 
and grant a prohibition. 
7 R. 2. nu. 14. The earl of Northumberland admirall of the north, and the eart 
of Devon' admirall of the weft:, to receive the fubfidj^ of tunnage 
land poundage, and to keep the feas. 

Addition of Bool: s. 

See the firft part of the Inftitutes, fe61:. 459. and k€c. 677. 
>. -5 459. oi U77. . where Littleton ipeaktth of a out of the realm, or beyond 

^ part Infiiti 
459. di 67- 

Cap. 22. The Court of the Admiralty. 


fr^y and adilc the notable cafe in Mich, i f H. 4. fo. i r, 

yl 85. Sovinjrics cafe, the defendant in an appeal of death being 

outlaw cd, brought his writ of error, and allignal for error, tliat at 

riie time nf the outlawry, and before, he was in the kings fervicc 

\iix>n the fca in tlic companv of the lord Berkley then admirall, and I^rd Berkeley 

had a writ unto him to ceruhe. 

6 R. 2. tit. Proteftion 46. 7 R. 2. tit. TrefpalTe Statham. 
TO H. 7. fol. 7. a. Vide i9 H. 6. nu. 5",. where the owner 
of a (hip fliall anfwer for hurt done by his fliip, though he be not 
part\- thereunto. 

* Vid. Lacics cafe, Cr. 25 El. li. 2. fo. 93. Vid. li. 5. fo. 106, 
107. and 108. Sir Henry Contlables cafe. Lib. 6. fo. 47. Dow- 
dalescafe. Brook, tit. Error 177. 

See certain ftatntcs, viz. 27 E. 3. cap. 13. Stat. Staple. 31 H. 6. 
cap. 4. 2 R. 3. cap. 6. 28 H. 8. cap. 16. 

It appeareth by tlie former records, that the admiralty is fome- 
time called admiralitas^ fon>etime admirallatus^ and fometime by The name. 
other names, as admiralliu^ capitaneus or cujios maris^ or marimr, or 
maritan:^^ cr JUta navium^ that is, of the navy floating on the fea. f 14.7 1 

Lev marine y ley des mariners. 

The otHcei- is called admirall indifferently both in Englifh and 
in French. We name him in Latin admirallus^ and the court curia 
admiralitatisy derived of amir^ id tji, prafeilus^ et aA»o? i. n^arinus^ 
prafedus marinus, admiralius^ adviiralltis^ admiralli curia res mariti- Canaden. 
mas tradat : in hac numerantur admirallus AngUa^ locum tenens ct JU' 
dexy fcrib.-e duo^ferviens curiae viceadmirallii Anglian. 

H^da or hitha^ i. pectus a haven, as Queea-hithe, Lamb-hithe, 
&c. Hafne courtsy now haven or port courts, fialfle, i. partus. 

To conclude, the king of Englands navy doth excell the fhip- 
ping of all other forain kings and princes : for if you refpe<5l beau- 
tifull ftatelinefle, or (lately beauty, they are fo many large and fpa- 
cious kingly and princely palaces. If you regard ftrength and de. 
fence, they are fo many moving impregnable caftles, and barbicans, 
and u ere tearmed of old the wals of the realm. When our Eng- 
lifh navy is among the (hips of other nations, it is like lions inter 
pecora campi^ and like a falkOn /«/^ phajian&s ^perdices^ et alia vola- 
tilia timida call. 

Befides, no part of the world have fuch timber for building and 
reparing of (hips as our king hath. 



Of Port-mooted. 

Cap. 24- 


The Court of the Gommiifion under the Great 
aSH.8.cap.i5. Seal by Force of the Statute of 28 H. 80 
cap. 15. 

^'he ccmmj/JIcners. 

Tcbt heard and 
determined by the 
iimmon law. 
See the 3 part of 
the Inftit. cap. 
Piracy, pa. iir, 
liz. &c. 

^T^rilS court miift be holden corarn adm'tralh Anglic ^ feu cjns h- 
■*■ cum tehentc, and 3 or 4 fuch other fubftantiall perlbns, as ihali 
be named by the lord chancellor for the time being. 

Their jurifdiclion is to hear and determine all treafons, felonies; 
robberies, murders, and confederacies committed or done upon the 
fea, tVc. 

Thefe offences fliall be heard and determined according to the 
courfe of the common law, and therefore feme of the judges of the 
realm are ever in this commiflion. 

Concerning the mifchief that was before the making of this fta- 
tute, and how the faid a6t hath, been formerly expounded, you 
may read plentiful! matter in the third part of the Inftitutes, 
cap. Piracy. 

The procefTe and proceedings herein are in the name of the 
king : fee before cap. Chivalry, p. 124. that the ftatute of 35 H. 8. 
cap. 2. nor that of 5 E. 6. c. 11. taketh not away this a6l oi 
28 H. 8. concerning treafons ; Note, that in all the commillions 
granted for the execution of this aft of 28 H. 8. fince the faid acls 
of 35 H. 8. 5 E. 6. power and authority is given to hear and de- 
termine all treafons, &c. done upon the fea. 

I 148] 


Of Port-mbbtes, alias Port Courts, alias Port-< 
mote Courtes. 

* See m the 

chapt. of the 
Courts of the 

* Hereof cum- 
jneth in London 
Qijeenhithe, and 
in Lambith 
fcimoiiit.icj &c. 

APortmote is a court kept in haven towns, or ports, and thereof 
taketh his name curia portusy Gj'c. 
Partus eji locus in quo exportantur et importantur merces^ a portdtt- 
^0. And they zrc port^ regni the * gates of the realm, ^ Hitha and 
heda often in Domefday is taken for a haven or port, anciently writ- 
ten hafne and now haven, by changing the/* into -yas is ufuall. 

Every haven is within the body of the county, &c. whereof fe« 
before plentifuU matter in the chapter of the court of the admiralty 
proceeding according to the civil law. See 43 Eliz. cap. 15. 


Cap. 25. Com. for Beacons, Sea-marks, &c. 148 


The Power and Authority of Commiflioncrs 
and others for the maintaining and ercding 
of Beacons, Signes of the Sea, or Light- fhe'Jllft^'/ar^ 
houfcs, and Sea-marks, and concerning ^"^'^'"8'» 

T}E/JCON, this word is derived of the Saxon word Beacon^ i. fpe- Beacon. 
-*-^ culum, wide fpeculantur advcntus hojiiurn, and is often cdWtdJignum 
fpeculatvm., and btchan in the Saxon hn^nage is fgnum dare, 
and we ufe the word to becken to at this day. 

Before the reign of E. 3. there were but (lacks of wood fef upon 
high places, which were fired when the comming of enemies were 
defcried, but in his reign pitch boxes, as now they be, were 
in ft '•ad of thofe ftacks of wood fet up, and this properly is a 

Light-houfes, iynes fpeculatoru, feu monitorii, feu honen maritimum, Ligbt-bsufn. 
feu * pharus, undc vafus, * •""o t5 <}>«vSF, 

hii'Kina mhi'vagte toU'it phariis tcmula lun^, *'^ 'ft* '«"^«'''»- 

TIrefe light-houfes are properly to dire6t feafaring men in the 
night when they cannot fee marks, and thefe are 2M0 figna fpecula- 


Sea-marks;* as fteeples, churches, caftles, trees, and fuch like for Sca.marks, 
d'rciftion of feafaring men in the day time, and thefe are called 
fgfia marina, or fpeculatoria, or figna nautts, whereof Virgill 5 

Hie liridem ALneai frondenti ex ilice met am 

Conf/ttuit * fgnum nautis pater, wide reverti * W eft inilj- 

Scivcrit, et longos ub'i circumfieRere curfus, for. mum. 

So as you may dividey^c-f«/^ or figna fpeculatoria, or fgna nautis 
into three branches, viz. into beacons, light-houfes, and fea-marks. 

At the common law none but the king only could ere(fl any of 
thefe three, which ever was done by the kings commiflion under 
the great fe J, as taking fome few examples for many. 

De f^nis ffrer montes per ignemfaciend* . T iaq 1 

De fignis fuper montes faciend\ Rot. Scotiae. 

Rex affignavlt * Hemlcum Epu. Norwic^ et ^ Willielmum comltcm 10 E. 3. 

^uff. et alios, ^c, (inter alia) ad fgna fpeculatoria fuper mmfes in Rot-Clauf.Vafc' 

com^ Norf. ponend*, Et fimiles commifliones in aliis comitatibus, 1° , J'' , 

rj- , D . J y n • » . • 7" • •/ /- Rot. Franc 

f^tde Kot. clauf. i K. 2. m. /^i. m dors pro vigiliu et igntbus fpecu- ^y e. 3. m. ao. 

latoriis, et monitcriis. a Hcnricum 

He that is defirous to fee more of beacons, &c. and watchino- Spencer, hcof » 

of the fame, let him read the <= a^ of 5 H. 4. which is an aft o^ [°jjj|^" '''="'°* * 

parliament, and Dors' pat. anno 28 H. 6. parte 2. m. 21. in com* bvyUHamUffoni 

Kane"* et memh. 13. pro com* Norf. pro fgnis, anglice beacons, et vigi' comes Suff. 

liis. Et Dors* i^at. anno i E. 4. parte 3. &:C. ' Rot. par. 5 H4. 

Uut of latttr liaics by the letters paunts granted to tlie lord ad- "•?• *4' "ot ••» 

^ mirall rrr^y^ 

be read. 


SEliz. cap. 13. 

Pafch. tjac. It 
wa« rcfolved by 
the two chief 
juftices, atturny, 
and folicitor, 
that this aft ex- 
tended as well to 
Ijght-houfes in 
the night, as to 
beacons, Sic, by 
the day. 

Convi£l of out- 

Com. for Beacons, Sea-marks, &c. Cap. 25. 

mirall he hath power to ere£l beacons, feamarks, and figns for the 
fea. &c. ' 

By the a6l of 8 Eliz. it is provided and enafted, That the 
mafier, M^ardens and affiftants of the Trinity hor.fe of Debtford 
ftrond (a company of the chiefeft and moft expert mafters and go- 
vernors of fhips) fliall and may lawfully from time to time at their 
will and pleafure, and at their coils, make, ered, and fet up fuch 
and fo many beacons, marks, and figns for the fea in the fea-flioars, 
and uplands neer the fea coafts, or forelands of the fea only for 
feamarks, as to them fhall feem moft meet, whereby the dangers 
may be avoided, and ihips the better come to their ports. And all 
fuch beacops, marks and figns fo by them to be erefted fliali be 
continued, renewed and maintained from time to time at the colls 
and charges of the faid mafter, wardens and affiflants. An excel- 
lent law, that this power and authority was given to them which 
had greateft fkill, feeing they were works for the fafety of the 
realm, and fafeguard of the lives of feafaring men, and that thefe 
works (liould be erefted, and made, and continued by them at 
their own cofts and charges, becaufe they knew to goe the nearefi: 

Becmagium fignifieth money due or payable for the maintenance 
of beacons, or the watching of the fame. What puniflimcnt they 
incur which take down, fell, or otherwife cut down any feamarks, 
fee tJiC faid a£t of 8 El. ubifupra^ wherein it is to be obferved, that 
if the perfon offending be not able to pay the penalty tiierein in- 
fli^ed, he fnall be deemed convict of outlawry, ipfo facloy to all 
conilruclions and purpofes : the Hke whereof we have not obferved 
in any other ftatute. 

Ward'voiie^ alias "warioite^ or tvard pem:y^ to be free from contri- 
bution of money to watches and wards. 

We have out of an ancient manufcript tranfcribed this ordina- 
tion that foUoweth, which in the county of Ncrf, hath been ever 
obferved, and it is very probable, that the like hath been done by 
like authority in other maritime couiities. 


Robertus de 
Monte alto and Bardolfe 
fat in pari la- 
ment, 14 E, 2. 
as barons of the 
realm, as ap- 
peareth in the 
parliament rols. 

*5H4. cap. 3. 
"Watches to be 
made upon the 
fea coft by the 
number of the 
people, in the 
places, and in 
manner and 
form as they 
were wont to be. 

Ordinatio pro viglll* ohfervdnd'' in com'' pretdi6i' a Lynns tifqu 



Hac igimr auihritate mandati nos Robert de Monte alto et^ Tltornas de 
Bardolfe mandamus v'lc^ Novf. quod 'venii e fad at coram nobis apud Nor- 
ivic' die Mercurii infeji^ decoUationis Satifii Johannis BnptiJT ptox'futur'* 
omnes milites^ omnes capit^ con/I abul liundred\ tt co-njiahd^ vili^ et duos 
homines de di/creticr* cujujlibet villa' uhi portus vel applicaV navitim in 
balllvafuatam hfra liheri^.f quatji extra in com'' pradi^' ad confulend'.^ 
formand\ auxilia'id' quahicr et quotnodo di^* cujiod^ fecur'ius proj'alvatione 
partium iUarum fieri pojity et adfaciend'' quod ex parte dom. regis Juper 
pr^emijjis injungitur. Ad queyn dietn nos diH'' Robert'' et Thomas per- 
fonaliter aeceffimus ibidem^ ac milit\ capit^ con/labur hundred\ conjia- 
buV vill* cum omnibus homin'ibus v'dV ubi applicaf navinm exiji^ de portu 
Lynne et de portu Yarmeuth coram nobis ibidem compar\ et ajferuerunt^ 
quod valde necejje ejfet profalvaf tot'ius patrio' quod vigiW fiant in f locis 
pericidojis Jicut * ayitiqiio more fieri folebant juxta mare. Et quod pnmes 
homines corpw* valid'' de idm^ Norf, contribmnd' ad iir/aciind^ per quod 


Cap. 25. Com. for Beacons, Sea-marks, &c. 


lie {ctot!: 
viz. apt. 


' .'/' r/i (juoii dua viji^^iW per fix hommti 

iTn fn- nrSirs fieri in kunJretV dt Free." 

: Iwrne^ to quod diH'' hundred 

. per 1 4 Uucas. Et quod qui* 

■:: (t per nucli/n pro vaJiis fuis 3 </. Et quod 

: r.g eidtm hunthcd^ de Fuebri^^e ad contrt" 

ad v/ar;7/' ilia faclcnd' viz. pro qualibet fcptiman' 4 r. (id. et 

uiev: hundred, de Frecbrigge 6/. pro feptiman\ Etfciend* eji TJ. vili, 

cofUinentui in di^* huudredo qu,e aj/i'^narttur ad difV vi^ill* faciend. 

Fiat etlam una vigiW apud Southlynne in Clynchern^ ^c. 

hem quod una 'o'lgilV fid in hundred' de Smithdon opud Tlwrnham per 

ffx }u>minci^ eo quod ditium humhed* jungit fe mari de Dcrfingham ufq\ 

D.epedid fer.n per 1 2 Itucns. Et quod hundred de Southi^rnthoe et Laitn- 

Jicke eidjiiug ddcm hundred^ de Smyth Jon ad contribuend' ad vigiW ///' 

faciend\ viz. Iiundredo de Southgrenhoe 3/. 6^. per feptimcmC et hun^ 

dred. de Landiche ^s. per /ei,timam\ et hunched . de Smythden 3/. Et 

e:ntiuent^ in difV hundred* 79. xnlV ad vigiW ilia facievd. 

Et fiit una vigiW in hundred^ de Galhz'je apud Burnham per 4. 
Icmincs^ eo quod Ji^' hundred, jungit fe mari de Dce^edalc u/que Holkham 
per 3. Ifucas. Et hundred, de BrothercrcJJe adjungit' eidcm hund* ad 
cvntribuend. advigill' ill' faciind\ viz. hundred' de Brotheraofilf 3 j. fer 
Jrptim* et idem hundred, de Gall(K':e 4 j. per feptim.* Et fcicnd' <?y^ 45. 
'i.'dV funt in di^' hundred' ad 'VigilV ilia faciend. 

Item fiit utC viglll' in hundred* de Northgretdioe apud Holkham per 
6. homir.tSy eo quod di^' hundred' jungit Je mariy a HdUiani ufque Mar- 
ion per 6. leucas, Et hundred' de fVeyland^ GiltcroJJe^ Grimfiioe^ et 
Erjliam adjung' eidem hundred' ad contribiieruT ad vigiW ilia faciend'^ 
viz. fftylond 2 s. per feptim' ^ Grimjhoe is. per feptif?i\ Gihcrojf 2 s. 
p.r feptim'y et Erjham 2 s. per feptim'^ et idem humlnd de NorthgrenJioe 

2 s. per fepiim'. Et fciend' ejl quod 76 viW funt in diH' Inmdred' Oil 
'vigilV ilV faciend. 

IteiK fiet unum vigill* in hundred' de Holt apud f^^nbcrnn per- /ex ho- 
mines., eo quod did' hundred' jungit fe mari h Marfim ufque Shering' 
Ihim ptr 7 leucas. Et hundred, de Eynsford et Hemp/lecd adjung' eidem 
hundred, de H't ad linund' ad vigiW faciend\ viz. Eynsfoid 4 /. 
per feptim\ Hewfleed 3/. bd. per feptim' et idem hundrea* de Holt 

3 /. per fept. et fciend. ejl quod 70 vill. fuiU in did' hundred* ad vi- 
giW ill faciend. 

Item fiet unum vigilP in hundred, de Korfherpingham in duohus locisy 
viz. afud Runtcn et Trimmingham per 5 homines^ eo quod did. hundred, 
jung Je mari a Sheringham ufque Munfye becke per decern leucas, et hun- 
dred. de S .utherpingham et Mi t ford cum vill. infra liber i* adjung. eidem 
hundred, ad vigiW illafacienda^ viz. Southerpingham 6 s. % d. per fept. 
Mitford ^f.6d. per fept. et Norther pingh am 12 s. 6 d. per- fept. Etfciend* 
efi (mod 77. vill' funt in hundred, prad. ad vigill. ill. faciend. 

Item fiet unum vigill. in hundred, de Tunfied apud Baflioick per fex 
hominest eo quod did. hundred' jungit fe mari a Munfley ufque IValcote 
per 4 leucat. Et hundred, de Humhleyard et Foavrehoe adjung. eidem 
hundred, ad anUribuend. ad vigil, ill. faciend' y viz. Humhleyard 3 s. per 
fept. Fonarehoe I s. per fept. et Tunflead 4 J. G d. per fept, et fciend. 
ejl <mod 76 vill. funt in did. hund. ad vigil, ill. faciend. 

Item fiet unum vigil, in hundred, de Happing in duobuslocisy viz. apuel 
H^f>^:^rfh7ry:v pfr 4 hmines et apud JVaflurJham per 4 liomincs, eo quod 






Grim (hoc 

















* Vigillarmm. 

Dorf. Clauf. 
8H. 4. m.?. 
& 10. 

Com. for Beacons, Sea-marks, &c. Cap. 25, 

c^ii^, hunJ, jtmgiffe mart a Walcote ufque Wimbefdele in loco pcrkulofo 
fer 6. leucas. Et hmdred. de Taverham^ Depwade^ Shropham ct Dj£& 
adjung. eidem hund. de Happing ad contribuend. ad vigil, ill. faciend, 
.viz. hund, de Taverham 2 s. per fept. Depeiuade "^s. per felt. Shop- 
ham 5 s. per feptim. et DiJJe 2 j. per fept. et di^. hund. de Happing i x. 
per fept. Et fciend, efi quod 6o. vill.funt in hund. vigil, ill. 

Item fet unum vigil, in hnnd. de Eaftfiegge et Wefflegge in tiibus 
locis^ viz. apud Winterton per 6 homines^ apud Saltivos haven per fex ho- 
mines, et apud Fwdham per fex homines, eo quod di^. hund. jungitfe 
mart a Wykeldock if que Bnnton in Mitford in loco pericuhfo per 7 leucas. 
Et hund. de Waljham, Blovofeild, Loddon, et Clavering adjung. eidem 
hund. ad contribuend. ad vigill. ilia faciend. viz. Waljham 4J. 6d. 
per fept. Bloicfield 4 j. 6 d. per fept. Loddon 5 s. 6 d. per fept. 
Clavering ^ s 6 d. per fept. Weflfiegg 2 s. per fept. Eaftfle^g 2 s. per 
fept. Et fciendum efl quod 102 vill. funt. in did. hund. ad vigil. Hi. 

Prcscept. e[i onmibus capital, confabul. de hund. adjung. mari in locisr 
pra-did. in forma prcediHa hac infant, die dominica frox. futur. et fimi- 
liter pracept' ef efdcm capital, conjiabul. et omnibus aliis fubconfabul. 
hundred, totius com. quod fine dilatione levari et reparari fac. fgna et 
fitrbares fuper mont. altior. in quolibet hund. ita quod tota patria per 
illafgna qmtiefcunque neceffefuit premuniri poffet, et quod ipfe confabul. 
capital, per avixam. confabul. villariim et aliorum proborum fiominum 
agif.fac.fideliterdenar, pro vad. vigil, in hundred, pr^did. inftant. 
quod, ordinat.folvend. de feptimana in feptim. ita quod d fed. in vigil. 
pr^difi. nullo modo inveniatur per eoium dfeSl. et fimiliter quod omnes 
qui agift.funt ad arm a et potent, ad port and a at ma, et omnes illi qui 
loco potent, ad arma fua portanda affgnai.fint providi et parati fnt indies 
node ad veniend. folemniter diflinil. et aperte in prafent. domini VKal- 
teri de Norivic. epifcopi juxta nos affiden. ibidem cur. ^ cacar. totius 
. com. Norf. coram nobis vn.fecimus prod amar. Et fimiliter pneeept. efi 
vie. quod Icvar. fac. denar. agif. in hundred, prcedid. pro co/lis ci vad.. 
prced. folvend. 

For watches, and againfl night-walkers, fee the ftatute of Winch. 
13 E. I. cap. 4. 5 E. 3. cap. 14. Vid. 5 H. 7. 5. 

Vide Lamb, inter leges Edovardi regis, fo. 136. into- leges WlU 
lielmi regis, fo. 12^. a. 

Quod homines de Larkefield, Filbarozv freet, Nezvclmrch, et Worth in 
com' Kanc^ tenentur facere vigilias in Romney Marfk. 


Cap. 26. Of Ambafladours, Leagues, 6cc, 152 


De Confervatore feu Cujlode Treugarunt, .1. Indu- 
ciarum et falvorum "kegis Condu^uum^ 

And incidently of the Office, Authority, and 
Priviledge of Ambafiadours ; and of Leagues, 
Treaties, and Truces. 

BY the ftatiite of 2 H. 5. robbery, fpoyling, breaking of truces, aH. $. ca. 6. 
and fafe conduces by any of the kings liege people and fub- ftat. i. 
je(fls within England, Ireland, and Wales or upon the main 
fea, was adjudged and determined to be high trealon : but this 
branch concerning high treafon is repealed bv the ftatute of 
60 H. 6. But by the faid a.ft of 2 H. (;. for the better obferva- *oH. 6. cap. 11. 
tion of truces and fafe condU(5ts, confer vat or indiiciarum et fdl-vorum 
rfjris^uum was raifed, and appointed in every port of the fea 
by letters patents : his office was to enquire of all offences done 
againft the kings truces and fafe condufts upon the main fea (out 
of the counties, and out of the liberties of the cinque«ports) as ad- 
mirals, of cuftome, were wont. 

It concerneth the jurifdiflion of divers courts, and efpeclally of 
the faid court before mentioned upon the faid ftatute of 28 H. 8. 
and of the court of the admiralty, to know the rights of leagues 
and ambaffadours, as far as the lawes of England extend unto, for 
of them we will only treat. 

All leag\ies or fafe condu6ls are, or ought to be of record, that '9 E- 4- 6- ^' 
is, they ought to be inrolled in the thancer}' to the end the fub- *^ Jl* ^' *^*f-*- 
']t^ may know, who be in amity with the king, and who be not t ^jg fupia*** 
who be enenucs, and can have no action here; and who in p. 132. 
league, and may have a(5tions y)erfonall here. * In all treaties, the • Regula. 
power of the on« party and the other ought to be equall. 

A league may be broken by leavying of war, or by ambaf- 
fadour or herald. ^ t^E.a.uU 

Bryan held opinion in 19 E. 4. jtbi fupra^ that if all the fubjei^s iv,pr».' Sec th« 
of England would make war with a king in lca:^ue with th.*; king th'rd part of 
of England without the aflent of the king of England that fuch a 1"^'*-. 
war was no breach of the league. See the ftatute of 2 H. 5. cap. ^J*//^ *l «u"e 
6. in the preamble. ^ H* 5. ca?. 6. 

In the duke of Norf. cafe Hil. 14 Eliz. the queftion was, whc- jj-^ ,^ £ •,. 
' er the lord Hcrife and other fubjeds of the king of Scots, tint 
vvithout his aflent had wafted and burnt divers towns in England, 
and proclaimed enemie*^, were enemies in law within the ftatute 
of 25 E. 3. the league being between the king and the Scot : and 
re^ol^^ed that they were enemies. 

And in the bilhop of Roffes cafe, anr.. 13 Eliz. the queftion be- Hil 
' \f, Anlecatvs^qiid lebtUicnem centra prir.dpem aJ quern Ugatus cmcitatj 

iV. In: I . >■ * legati 

iS^f Of Ambaffadours, Leagues, &c. Cap. 26. 

legafi privilegiis gaiulcat.^ et non ut hofth ^pcenisfubjaceat. And it waS' 
refolved that he had loft the priviledge of an ambafladour, and was 
fubjeft to ])unifliment. 
Hil. iz Jac. Sa.-nufcl Palache affirming himfelfe to be the fubjeft and ambaf- 

fadour of Mula Sedan king of Morocco to the flates of the United 
Provinces, to treat and iiegociate with fhem of dlve'rs matters be- 
tween them ; and they of tihe United Provinces having accepted 
him fbr an agent or legat. And the laft of June 1611, there being 
enmity between the king of Morocco and the king of Spaine, the 
king of Morocco made a eommifiion. to the faid Samuel to take 
Spaniards and their goods. The 2.5 of Oftober 1613, ^^^^ ^^"S 
of England- gave him letters of fafe condufl: as a publick miniOer 
fent to the ftates of the United Provinces; 3 Martii 161 3, the 
Hates licenfed him to Jeavie men to furnifli hisfliips, &:c. In June 
[ 153 ] ^614 he took a carvell of the Spaniards at the Canaries laden with 

Carvel, or cara- fugar, and another (lilp there alfo laden with hides, of jhe g^ods 
vel, isafwift Qf Spaniards; and after, with diftrefTe of wind, he with the faid 
prifes was driven to Plimouth, there being at that time league 
both between England and Spain, and between England and the 
United Provinces, and wars between Spain and the United Pro- 
vinces; A«d againft this- Samuel the Spanifli ambalTadour here in 
England complained at the Gouncell table, and charged him with 
piracy. The faid Samuel and" his company being arrefted, and the 
goods feifed, the Spanifli ambafTadour prayed that he might proceed 
aoainft him as a pirat upon the faid ftatute of 28 H. 8. cap. 15. 
The lords of the councell referred the confideration of this reqiieft 
to the chiefe juftice of England being prefent at the table, and to 
the niafter of the rols, and Sir Daniel Dun judge of the admiralty, 
to confider of the cafe, and to dire6t a courfe of juftice therein in- 
differently. And the faid referrees heard the councell learned 
both in the eommon a?id civiil lawes on both fides on two feverall 
dayes in this terme: and after conference between themfelves, and' 
with others, thefe points were refolved. Firft, that at this day there 
* Null! nifi ab- could be no ambaftadour without letters of credence of his '^ fove- 
ibluti prmcipcs^ raigne, to another that had foveraigne authority. Legatus per litera» 
et qui majeftatis ^^j-^^ legaiione fidem facer-e debet^ ft ex-iganhir^ et comnionitorhim, f. in- 
"Taws conffitiTcre Jirudiones privat\ for the ambaftadour fiimfelf for his dire6lion. 
pofTunt. Secondly, that of ancient time ambaftadours were called- or.'?- 


yirgil. y^fnq; orator es aderant ex^ urbe Latino^ 

Idem, II Velati ramis ole'i-^ 

^Eneid, Legati 

reJpoKja ferunt. p^^^^ afterwards they were called legnti a, nuntii a nun* 

^Mn^^l^Nuntms '«*^«A ^"^^ afterwards ambajfiafores or embojfioiores^ and fometimeo'- 
haec Idmon agents : for omnis- legatus ejl- agens, but oninis-agens is not legatus : for' 

Pbrygiomea if he be fent from a ki-ng or abfolute potentate or ftale to a king 
dlpa tyrartr.o q^ abfolute potentate orlftate to treat between them, although he ' 
Haud placinirs -^^ ^^^ letters of credence be termed an agent or nuntws, yet he ii' 
■''-' * an ambafTadour or legate. j 

Thirdly, it was refolved, that amballadours ought to be kept: from | 
all injuries and uTongs, and by the law of all countries, and of ali t 
nations tliey ought to be fafe and fare in every place, in fo much \ 
that it is not lawful! to hurt the amb^ifiodour^ of our enemies : andtj 


Cap. 26. Of AmbafTadours, Leagues, &c. 

herewith agrccth the civill law. And if a baniOicd man be fcnt 
as ariibairadour to the place frotn whence he is baniflied, he may 
not be detained or offended there, and this alfo agrceth with the 
civill law. 

The cafe (which ux have (ecn reported) in the reign of H. 8. 
was this : there being amity between king H. 8. and the French 
king, and enmity between H. 8. and the pope, • R. Pole a rebeU 
and traitor to the king of England Hycth to Rome, whom the pope 
being in amity with Che French king fcndeth as ambaffadour to 
him: the king of England demandeth his rebell of the French 
king, notwithUanding he was fent as zmbziiadour, fed ko» preifaiuif. 
And it is truly faid, whofoever faid it. Quia vnitas a quocunque did' 
tur a Deo efi^futt feniptr etiam apud Gentiles (qui 7ruVam tenehant vera' 
fidei rationem) inviolabile. nomen nuncii et legati^ etiamji ah hojlibus mit- 
terenUir fcmptr fnhi^ ct hodic apud Sararenos et Turcos^ a quibufcunque 
tuta dejiinantur legationcs ct lifn-ar^ etiamji illis ad quos defer antur 
motejltrjjnt et injuriofe. But if a forein ambafladour htmgprorex com- 
mitteth here any crime, which is contra jus gentium^ as treafoii, fe- 
lony, adultery, or any other crime which is againil the law of na- 
tions, he lofcth the priviledge and dignity of an ambaffadour as un- 
worthy of fo high a place, and tnay be puniflied here as any other 
private alien, and not to be remanded to his foveraigne but of cur« 
tefie. And fo of contrafts that be good jure gentium he muft an- 
fwer iTcre. But if any thing be malum piohibitum by any aft of 
parliament, private law or cuftome of this realme, which is not 
ynalrvn in fe jure gentium,, nor contra jus geutiumy an rmbalTadour re- 
ading here fliall not be bound by any of them : but otherwife it is 
of the fubjefts of either kingdome, &c. 

Pafch. 36 Eliz. Henry de Vale and other Frenchmen imported 
divers manufaftures, as cloth of tilTue, cawles, points, &c. Where- 
upon Tomlinfon and other good merchants of London exhibited 
divers informations upon the ftatute of 19 H. 7. which prohibit 
the fine; of whom the Frenchmen complained at the councell 
table, and it was refolved by the lord treafurer Burghleigh and the 
whole councell, that it was no breach of the league between this 
kingdom and France, for that in the articles of the league the 
lawes of either kingdome be excepted: and therefore if Tomlinfon. 
the fubjeft being a French merchant (hould trade into France, he 
mud obferve the laws and cuflomes of France. 

Fourthly, it was refolved, that admit the faid Palache was noam- 
baS.dour, notwithflanding becaule there was enmity betwee/i the 
king of Spain and the king of Morocco, he could not be indifted 
as a pirat before commiflioners upon the faid (latute of i3 H. 8. 
Eecaufe that one enemy cannot be a felon for taking of the goods 
of another enemy. Aiul the words of the faid ad be, [that fhc 
commifljoners by force of the faid a£l (hall proceed, as if the of- 
ience had been committed upon the land, and according to the 
courfe of the corr.mon law.] 

See 2 R. 3. by all the juftices, that this is no felony, which cafe 
is in his parts rcmcmbred hereafter. For it is very oWervable vvbct 
the law of Enghnd is in that cafe. It was holden by fome of the 
civihan', that albeit the Spaniard could not proceed againl) him 
criminattcr, upon the faid aci of 28 H. 8. yet the goods being in 
fok anici^ ilmt is, in the foIJe of the king of Er^land, who w&j in 

N 1 league 


t. fi. F. d« Uz%, 
§RcrumCol. 9. 

* %tt the thJri 
part of^ the In- 
ftitutes, cap. 
High Trcifon, 
verb. Overt Jaft, 
pi. 14. Tempore 
H. 6. 

Pafch. 36. in 


19 H. 7. tap. it. 

a R. 3 (o. 

154 Of Ambafiadours, Leagues, &c. Cap. 26* 

league with both, that the Spaniard might proceed again ft Palache, 

civzUter in the admirall court : but that was refolved to the con- 

-TTrin. 2. Jac. co- ^^.^^^ ^^ Popham chiefe juitice, and the whole court of the kings 

ran. rege. bench Trin. 2. Jac. to be againft the law of England in that cafe : 

where the cafe was this, that where the king of England was in 

league with the king of Spain, and with thofe of Holland, &c. and 

there was enmity between the king of Spain and thofe of Holland, &c. 

and one of Holland upon the high fea in aperto prcello took the goods 

of a fubje6l of Spain, and brought them into England, ivfra corpus 

comitafuj^ and for that the goods were hi folo cimkl^ the Spaniard 

whofe goods were taken hbelled for them civlliter in the admirall 

court. It was refolved by the whole court of the kings bench 

upon conference and deliberation, that the Spaniard had loft the 

property of the goods for ever, and had no remedy for them in 

England. And relyed principally upon the book in s R. 3. 7/^^/ 

fupra^ being of fo great authority : for by that book, he that will 

fue to have reftitution of goods robbed' at fea, ought by law to 

prove two things. Firft, thatthe foveraigne of the plaintife was at 

the time of the taking in amity with the king of England, Secondly,. 

that he that took the goods was at the time of the taking in amity 

with the foveraigne of him whofe goods were taken: for if he which 

took them was in enmity with the foveraigne of him whofe goods 

were taken, then was it no depredation or robbery, but a lawful! 

taking, as every enemy might take of another : all which ap- 

27 E. 3. ca. 13. peareth in the faid book. See the ftatutes of 27 E. 3. and 31 H. 6. 

* "^n'i'^ca A ^^^^ expounded in 2 R. 3. ubi fupra. Vide 7 E. 4'. 14. 13 E. 4. 

7E. 4. fo.*^i4. 9* ^^ ^- 3- ^^* ^3- concerning this matter. And for that there 

13 E. 4 9. "^vas enmity between the king of Spain and thofe of Holland, 

2 2E. 3. 16, 17. therefore it could not be depredation, but a lawfuU taking. It was 

Regi^ft. 129. aifo refolved by the court of the kings bench, that the goods fo 

" u" u'u»' ^^^* taken bein? v*-ithin this realm, viz. 'iTifra corpus comitatus^ in foh 

IJota.' amicr^ that it the Spaniard lue for them civditer m the court ot the 

admiralty, that a prohibition iliould be granted, and that it fliould 

• be determined by the laws and ftatutes of England, and not by the" 

civill law. 

With this refolutlon of the kings bench do6tor Taylor an feng- 
liftiman, and folicitor for the king of Spain, was at the firft much 
offended, but when he had taken advice and underftood the rea- 
fon of the rcfolution, he was well fatisfied. 
Lib. 5. fo. ic6. If a fliipwrack be on the fea, yet if any of the goods come to' 
liand within this realm, the admirall fhall not have jurifdidion, 
but it belongeth to the common law. 

See the third part of the Inftiiutes, cap. Treafon: what offence 

it hath been, and what it is at this day to kill a foreign ambaffa- 

[ 155 3 dour: and fee there 3 R. 2. John Imperials cafe, ambaffadour of 

J Chro. 19. 3. Genoa. It appeareth in the holy hiftory, viz. in the firft book of 

^'^' the Chronicles, that injury and'difgraces offered to king Davids 

ambalfadours which he lent to Hanon king of the Moabites, /2<:/ <:o«- 

foland'* ei fupi a 7?mtem patrls fui, gran Jem etiam antumeUam fujiinue- 

runt^ (jfc. was a juft caufe of warre by David againft the Mcabites, 

and was feverely revenged, as by the holy hiftory it appeareth. 

„ There be four kindes of leagues, i. fcBi^u-s pads, and that a 

clni^Ai^ 1-c. Chnfti^" prince may have with an infidell. Si fieri poJJJtyqucdfxvobis- 

Abi-ah. cu.iue^e' tj}^ cum omnibus hominibns paccm habeatis, 2. J/xdus congraiulationis 

Sodom. five 

Cap. 26. Of AmbaiTadours, Leagues, &c. 155 

five ccnfolationh. And this may a Chriftian princtf niake with an 
infidtll as David did with Hanon: ubi fupra. 3. FceJus commttia- 
tionis nercium five commcrcii. And thib alfo may be made with an jofua cap. 9. 
infidell, as king Solomon did with Hiram an infidell, and Jofua did aKing^j.i.itc. 
with the Gibionircs. 4. FoeJus mutui auxi/ii, and this cannot be *« 34 3S- 
done with an infidell or an idolater. Jehofaphat king of Juda, ]^^^\\\ 
m^dc/iVi/us mutui auxiJii witli Achab king of Ifrael, an idolater : for J„ , J^ J J* 
Achal) faid to Jeholaphat, ferti mecum in Ramoth G ilea J. Ciii ille re- 19,^0. *c«p.ia 
/pwtJctj Ut ego <t tUy ft ficut populus tuus^fic et pof.ulus mcus tecum erimus ^ Chron. 19. ». 
in 6elio : in which warre Achab was (lain, and Jehofaphat was in ex- ^ ^^P- *°* 35» 
treame danger. And after, as the text faith, Riverfus cfi autem Jehofa- 
phat rex Judt in dontum /nam pacifice in Jaufa'cn^ cui occunit • jehu ^ J^ prophet 
filius Hananiy et ait ad illtim^ impio prcbes auxdlum^ et hi is qui odertint 
dominum amicitia jungeris^ et idcirco iram quidein domini mcrcbaris. 
And the laws of England concernino thefe four leagues are as you 
perceive grounded upon the law of God. 

But here arifeth a queftion, that (texngfoedus pads, or fcrdus com- 
txercii may be ftricken between a Chriftian prince and an infidell 
pagan and idolater, and thofe leagues are to be eftablilhed by oath, 
whether the infidell or pagan prince may fwear in that cafe by falfe 
gods, feeing he thereby offendeth the true God by giving divine 
worlhip to falfe gods. This very doubt was moved by Publicola 
to S. Augut^ine, who refolyeth the fame thus: he that taketh the Aug. Epift. 154. 
credit of him that fweareth by falfe gods not to any evill but good, ad Fublkolam. 
he doth not joyn himfclfe to that finne of fwearing by devils, but is 
partaker with thofe lawful! leagues wherein the other keepeth his 
faith and oath. But if a Chriftian ftiould any way induce another 
to fweare by them, herein he (liquid grievoufly fin. And feeing 
the leagues in thefe cafes are warranted by the word of God, et per -^"g"^-. '■''• <*« 
praxm fandtorum in Jacra Jcnptura^ ail incidents thereunto are per- j.^ Praxis fanc- 
mitted : for per praxin fan^orum the praflife of holy men in fcrip- torum interpres 
ture, may often time be collected how tb.e commandements in it praceptorum. 
are to be underftood, and praxis fan^orum appeareth before. 

And it is to be obferved that of ancient time, and untill latter Rot. pari. 9 H. 6. 
dayes no ambafladour came into this realme before he had a fafe ""• i*- endlong 
conduct. For as no king, &c. can come into this realm without a \^^\\\^ -. CaU 
licence or fafe conduvft, fo no proiex^ Trfc which reprcfenteth a vins cifei De 
kings perfon can doe it. For fafe rondu<f^s fee the writs in the rege Marr.e. 
Regifter defalvo conduFtu^ and the ftatutes of 1 5 H. 6. 18 H. 6. and I^fg'^- *"u.25, 
20 H. 6. with all incidents thereunto. And king H. 7. that wife ^^' -^ r 
and politique king would not in all his time fufi'er lieger ambafia- jg h. 6 cap*. 8 
dors of any foraine king or prince within his realm, nor he any 20 H. 6. cap. i. 
with them, but upon occafion ufed ambaftadors. i H. 7. fo. 10. 

• Every ambafiador ought to have four qualities, exprefled in this ^<^g*^/ °^ ^^« 

^prfc -1 7 r poj,g fworne, &-c. 

•:• Fourc qualities 
Nuncie, fis verax, tacitus^ cekft atquefidelis, ought to be in aa 

* J r I . , /- . 1 ambafladour. 

Ana or him another faith. 

Fcedtiis orator^ pacis via, terminus ine^ 
Semen amicitia, belli fuga^ litibus hofiis. 

William de la Pole duke of Suff. by the commons was charged R'^'-P'- ^^ ^- 
(amongft other things) with this, that he procured the king, in his ""' * * 
rrefence only without any other of the counctil, to have fecrec 
• onfercnc* with the French a.mbafladors, &c. for the which 

N 3 (amo.ngil 


1 Decemb. 
ai H. 8. 

See thefe articles 
before in hac 
•vet-bay cap. 
artic. a, 3. 9, 
10. la.. 

« A truce. 
Rot. Franc' 
19 E. 3. in. 10. 
part I. 

^ See the truce 
at large, lib. par. 
10. 5. 

<■ A league, 
rot. par. 4 H. 5. 
nu. 14. 
f^ 9 E. 4. 2. a. 
e 39 H. 6. 3q. 
fRo.pat. 35E.5. 
part 2,. m. 24. 
clauf. 10 H. 4. 
Tii. 15. nunt'iui 
Rot. clauf. 
34 H. 3. m. I. 
rot. clauf. 
ixR. dcrf. 
5 ^.0. p^r. 
jy'R. a. 
part 1. m. 23. 
Rot. Franc. 
12 H. 6. m. ?• 
Rot. pat. 
11 H. 6. 
IS pvt. m. 6.. 

Of Ambafiadours, Leagues, &c. Cap. 26, 

(amongfl other things), he was baniflied, &c. as by the record ap- 

* Cardinall Wolfey was charged with thefe notable high and griev- 
ous offences (amongft others) viz. That he being the kings am- 
baflador in France made a treaty with the French king for the 
pope, the king not knowing any part thereof nor named in the. 
fame, and binding the French king to abide his order and award,^ 
if any controverfie or doubt Ihould arife between the faid pope, 
and the faid French king. 

Alfo that the faid lord cardinall being the kings ambaflador in 
France fent a commiiTion to Sir Gregory de Caflalis under the great 
feal in the kings name to conclude a treaty of amity with the duke 
of Ferrare without the kings commandement or warrant, nor the 
king advertifed nor made privy to the fame. 

Alfo the faid lord cardinall taking upon him otherwife then a 
true privy councellor ought to doe, hath ufed to have all ambafTa- 
dors to come firft to him alone, and to hear their charges and in* 
tents, &c. 

Alfo the faid lord cardinall ufed many years together not only 
to write to all the kings ambaffadors in forain parts with other 
princes in his own name all advertifements concerning the kings 
affairs being in their charge, and in the fame letters wrote many 
things of his own mind without the kings pleafure known, con- 
cealing divers things which had been necellary for them to know, 
but alio caufed them to write their advertifements to him, and of 
the fame letters he ufed to conceal, for the compaffing of his pur- 
pofe, many things both from the kings councell and the king him- 

The difference between a league and a truce is, that a truce Is a 
ceffation from warre for a certain 'time: a league is an abfolute 
ftriking of peace. 

• Of a truce we have read in anno 19 E. 3. to this effeft. Rex 
foji initas indiicias cum Francorum rege fer mediai'njnfm ^ Romani pon- 
tljiiii^ capias ftias hcllicas demum reduxit^ pfif-a depreJiendttis frafaf 
reytm' hcjiilia contra ipfum nicliri^ ct 7iw:tio> prafaU pontijicis 
Jinulata pace. di/Jidiuin fovere^ pranvjja omnia pn lit eras patentes ey;,- 
ponenda a'uxity ct czan prn fato rege rcfunipjit, 

^ A league and alliance was made between king H. 5. hi:, heirs and 
fncceflbrs, and Sit^ifmond king of the Romans h's heirs and fuccef- 
fors kings of the Romans, and was confirmed by -dd: of parlian-.ent. 
The inftrument wherepf is very long, but act fo long as eififtuaU 
and worthy of obfervation. 

** It is faid in 9 E. 4. that a league made between two kings 
(without naming of fucceflors) dotii not extend to fucceffors, al-; 
though by our lavv^ rex mn inter moritur. 

^ Juftice Afaton is of opinion, that no anibafTador ought to be 
fent to the pope, but there may be mcrny preii dents to the contrary, 
for befides hisfpiriuinll jurifdiftion he is a temporal! prince, whereof 
fee a prefident among many others, ^ Rot. pat. 35 E. 3. parte 2. 
memb. 24. and likcwife the pope fent ambaffadors into England, 
who were fworn not to attempt any thing prtjudiciall to tf.c king 
or kingdom.e. 

« And that we mav give foir.e tafle of every kmd : in times paft 
the king of England lei t anibaff^.dois to generall councels, as taking 


C^p. 26. of AmbaflaeJours, Leagues, &c. +15^ 

one example of tliat fort for many. M am ilium Bnfilicm' fub Eu- ^ ^j^j^^ qjt, 

^enio pa^rty quorum Jefihiati ftoit per re^em amhaffiat.rfs et orntores epif- y^^^ doOor of 

topi * kohnius Lor}(ion\ Philip/ui Exoni^s\ Johannes R'>ffnt\ Jo^ <Jiyinity. John 

hannti Bniacens* el Remnrdus Aqumens' Ed'ui comes Moritm, ah- Ltng.lon doaor 

bates Glafion' et beat.r Mari^ Ebofum, priof Norwici, Hemicus Biom- °; J^j^i^J^'^^J^^'^,, 

flet miles y ((fominus f^'rfcite) Thomas Bro^vuc Icyum doflor dcccinus Sa- f^jfi^,'fgyf ^^^j, 

lytrty Johnnnes CollnH/e rniU'Sy et aHi. Their authority was in ihele cijfion,fVillielm. 

words. Dnntes et damus eis et ipforum mnjofi parti pctejfatcm et man' yihbai bear^ 

datum tam Pcneralc quam fpcciale nomine noflro et pro mbis in eodcm con- ^'"'f t"^^''"^' 

.... ;f. M '',,»• 1- . 1 ] ]• ^ J I- The IcttTti of 

eilio intaejjtndty tratlandiy communicandiy et concluikndi tam de /it is ^j^^ where- 

qu.'T reforniationem eccleji<€ univerfalis in capttc ct in membrisy quam in i,y generall 

hiis qtiic fidei ortiiodoxa: fulcifnenttiniy re-^umque ac prinxipmn pacificati- councels are 

onan coicesxerepoicrunty nee non ds et fuper pace perpetuOy gucrrarumve ob' calbd, yoii may 

jUneniia into nos et Carolum f adverfarium nojirnm de Franciay ac ctiam p *^ |^" ^^^ ^"^^ 

ha^andiy coinmunicandi^ et appun^uaudiy cor/entiendi infupery et /i opus 1245, pa. 386.* 

fiterit^ dijffentiemU hiis quee jiixta deliberation em didi cmcilii inibijiatui, jlT ^cn 1 

et ordinari contigerit, Promittcntes et promittimus bona fide nos ratum^ 

gratuwy et firmum peiprtuo hahiturum totum et quicquid per didos am- 

hajjiatores, oratores, et procurator esnojiros y aut majorej/t partem eorundem 

adumy fadumy Jeu ge/ium fuerit inpnemiJJiSy et infingidls pr^mifforurn^ 

ei hoc idem cum de et fiiper hiis certiorati fuerimus quantum ad nos 

et Chrijlianum principem attinety execuiioni debit^-e curabimus deman- 

dcLr*, In cujus rei iefiimonium has liter as nojiras fieri fecimus pa- 

tcntes. Dat* fub magni figilii mfiri iefiimonio in palatio nofiro Wefim^ 

10 die Julii. 

We have exprelTed this ambaflage the more particularly., for that, R«^ pat. anno 
to this councell alfo I find that Henry Beauford (fon of John of '* ^^- '^^j"""^*^]; 
Gaunt by Katherin Swinford) bifhop of Winchefter and cardinall ^^^^ 12. part ». 
of S. Eufebye addrefTed himfelf and had licence to tran^fport and „!. 13. 
carry with him 20000 1. of gold and filver (mute, but moving am- 9 E. 3. ex i. 
ba(Tadors) notwithftanding the ftatutes of 9 E. 3. cap. i. and '>^'*'"a"' 
5 R. 2. cap. 2. &c. For the form of a fafc conduft (which is r./j? j, le 
called de fal*vo conduilu) fee t!ie Regifler. And for the effect and *^' ' ^' 
validity thereof, fee the ftatutes of 1 5 H.6. cap. 3. 18 H. 6. cap. 4. 
20 H. 6. cap. I. 

Recordum et procrfs'' contra Pctrum de Rival thcfaurariiim ct camera- Anno i8 H 
rium titius Anglia et Hibernuty et cujlod' omnium for efi arum et omnium- 
portuum marisy ^c. di ccmpoto regi reddito de officiis pradiHis et de ju- 
dicio contra ipfiim rcdlito per dejaltamy quia venire recufuvlt^ nifi fal\!o 
regis condu^Uy quod rex denegavit qunfi infditum et indthitum. 

What reward legats have had in former times you may read, 
Rot. liberat. 11 H. 3. m. 13. Rot. clauf. 11 H. 3. m. ii. in dorf. 
Rot. liberat 3 E. i. ra. 9. Eodcm rot. i E. i. m. 2 Rot. alman. 

11 E. 3. per totum rotidum. 

See Beda in his hiftory of England, Lib. i. cap. 11. hereafter 
cap. 75. Of Scotland, in fine^ the danger of uuwile and inccrtain 

N 4 CAP. 


Juftices of Affize and Nifi prius. Chap. 27. 


The Court of the Juftices of Affife, and Nifi 


Glanvil lib. 13. 
cat). 32,, 33. &c. 
Brad. lib. 4. io. 
J 64. b. 

Britton fo.Tc6. 
b. 1 12. 118. 
Iletali.4. cap. I. 
& 5. Mirror 
ca. 2. § 15. 
Stat. Waliiae in 
Vet. Mag. Car. 
a part. fo. 12. 
26 aff. p. 24. 
* F, N. B. 177. 
Reg. See the 
1 part of the 
In'h fe6V. 442. 
Mag. Car. ca. 30. 
39 H. 6. 19. b. 

When juftices of 
sfiife by patent 
firft began. 
^ The patent cf 
the juftice of af- 
liie. ■ 

ad ajjijas. 
Hereunto be- 
long commif- 
lions of aflbciat'* 
writs of admit- 
tance, and of Ji 
r.on omnesy ^c. 
Y. N. B. 177. 
Regifter, and a 
wilt to the fhe- 
3 if to bring .be- 
fore them 
Iret'ia a ijis' ju- 
rat' ct ccrujicat'' 

'' "Jurct^ when 
thii recognitors 
n.e turned in 
jurcttan:. 19 E. 2. 

air. 418.29 air. 
p. 7S. ?<c. 
^ Certificat. 
hereof you may 
read in F. N, B. 
ana theRegiller. 
'' Nota, 
*^ W. i. ca. 25. 

FO R the writ of afiife, whereof the juftices take their name; 
in all ancient authors, it is called aj^/a novce dijjeifmce^ or petit 
brief de novel d'JJeiJin, Of which writ Bra£lon faith. Recog^ 
n'ltio afjifa nova dijjeijin,:e mult'is •vip-Uiis excogitata et inventa fu'it re- 
aiperaridce poJfefJiGnis gratia, ut per Jumniariam cognitionem abfque magna 
juris folennitate^ qucji per compendium^ negotium terminetur. Anil the 
Mirror faith, that for expedition of juftice, and oufting of delayes, 
it was ordained by Raimlph de Glanvil! ; but I finde the writ 
more ancient, as it appeareth in 26 Aff". pi. 24. 

At the common law alTifes were not taken but either in * bank, 
or before juftices in eire, and this was a great delay to the 
plaintif, and a great moleftation and vexation of the recognitors of 
the affife. For remedy whereof, it is enafted by the ftatute of 
Magna Carta, Cluod recognit tones de nova dijjlijina^ et de morte ante- 
cejjoris non capiantur niji in fuis propriis comitatibus^ et he mode nos Ji 
extra regnumfuere capitalcs jujiiciarii nojlri^ mittent jiijiiciarhs njiros 
per iinnmquemque ccmitatnm feinel in anno^ qui^ Cf/r- capiant comitatibus 
illis ojjifas pradirtas. By force of this aft, tbefe three conciufions 
are to be obferved. P^irft, that no affife can be returnable in the 
kings bench, or common, unleffe the diffeifm be done in 
the county whefe the benches-fit refpedivdy, or if both benches fit 
in one county, then the plaintif hath election to miake it return- 
able in which bench he will. Secondly, that the juftices of both 
benches in that cafe have jurifdi6tion originaliy and ordinary with-, 
out any patent. Thirdly,"' that upon the laid 'ad of Magna Carta 
letters patents to juftices of affife were framed for the taking of af- 
ftfes in tlie proper counties in thefe word<?. 

t RiX, tsc dihais et fukliliis fuis R.M. unijific'fuorumde banco^ 
et I. L. uni fafiic' fuorum ad placita coram nok-s t.nend' iifign' fahiem^ 
Sciatis quod cojiflituunv s vos jufiici arias noflros una cum hiis quos vcbis of- 
/ociaverimus\ ad omnes ^ aj/ifas^ ^ jurat'', ^ certifcaf coram quibufcunque 
jufiic' tarn per diierfa Irtvia dotnini Johannis nuper regis Anglia; pains 
noflri^ quam per dive ^ fa brevia noftra in ccni' nofiris Southt'' Wilitf. Dorf, 
Somerfet' Devon^ et Cornub' ac in civitate Exon' arranian' capisnd\ Et 
ideo I'obis matidamus, quod ad certos dies et loca qucs vos ad hoc pi ovide- 
ritis, q///s\jt:rat', et artifcationes illas capiatis; ^ faSIuri inde quod ad 
jvftitiam pertinet fecundum legcm^ et confuetudinem regni nofli i j^ngVue^ 
Salvis Jiobis atnerciamcntis inde provenien\ Mandavi^nm enim vicecomi- 
tibus nrfcris ccm' ct civitat' pradifr\ quod ad certcs dies ct kca quos eis 
fcire facialis afjis\ jurat' et certificat' ill as una cum breiibus origin^ et 
omnibus allis ca tani'/n' coram vobis venire fac\ In cujus rei teftimo- 
niu?n, tlfc. 

* By this writ the feifin and pofteffion was recovered, and be- 
came moft frec^r.ciir. Qtria non cjl aliud breve in cancellaria, per quod 


Cap. 27. Jufticcs of AiTifc and NIfi prius. -f 1 58 

iptoentes habent tmm fejiinum remetiiumy quam per afftfam. ' And ' W. a. c*. ^a 

after the ftatutc of W. 2. was made ana thereby it was provided, ▼»«*-4E'3c«p». 
quod ajjignentur duo jufiiciai it jurat! ^ coram quibus^ et non aliis^ capiantuf 
aj/tfet^ Qc. adplui tcr per annum. 

* Dominus rex^ ^c. tra-cepit^ quod de ctttero affignentur oflo jujil- 'Ro.par.aiE i^ 
ciarii circumfpefii et dijaeti ad ajifasy jurat\ et certificate capiend' per '^t- J- Dejuai- 
totum regHum Anglla^ viz. and dividcth the realm into eight jjarts, ^'*'"* *^'»o«««. 
and to every part afligneth two juftices. 

But divers a<5ls of parliament have given unto juftices of aflife f I50 1 

authority in many cafes. ^ 

^ Per leflatut' de finibui cap. %. iuJUciarii ad afpfas capiendas affig- . ^7 .* ** '**'* 

• 71/ J \ t>- • r 1-T / ae nn»bus cap. t. 

nati deliberent gaolas in com lUis tarn inna Uoertates quam extra de To deliver jraoJj 

pifonariis quibufcunque. ' Appeals of murder, robbery and rape ' 22 E. 4.19. 

may be commenced before juftices of aflife. •* Power given to juf- ** Stat, de Ap- 

tices of aflTife to try the appeals of approvers. * Jufiiciarii ad oj/i- ^^^J'^"' *"• 

fas capiend^ ajjlgnat't non compellant juratores dicer e prcccife, ^ vv 2 cap 

^ Juftices of aflife fliall enquire for non-returning, and falie re- ^ w. 2. cap. 3^9! 

turns of fljerifs. 2 E. 3. cap. 5, ' 

* Juftices of aflife may hear and determine of confpirators, falfe ^ Artie, (up. 
informers, and wicked procurers of dozens, enquefts and juries at "* ^^ ^* '• 
the complaint of any without writ, and without delay, and of con- ^ j^' \ ^"' 
federacies and champerties and maintainers, bearers, and alliances by Regift.'ise. 188. 
bond, &c. ^ Of defaults of ftierifs, cfcheators, bailifs, and other 4 £• 3- ca. 12. 
officers. ^^ maiors and 

' Juftices of aflife may enquire of defaults, &c. of puniftiment r^tJi/'^jJ",'/' 

of victuallers,- &c. which fell at unreafonable prices. h 20 £. 37ca, 6. 

^ They have power to hear and determine riding and going * 23 E. 3. ca. 6. 

armed, &c. and to punifli jufticts of peace, flierifs, baillies, and '^ ^ E. 3- ^^ 3* 

.others for not doing their office in that cafe. tJn^°R^''T'- 

' They may hear and determine treafon in counterfeiting of ofunl awful** '' 

money, &c. ^ They fliall do execution of the ftatute of 13 H. 4. maintenance, 

of riots done in their pretence upon pain of an hundred pound. ' 3H. 5. ca. 7, 

° And by the ftatute of 2 H. 5. ccmmiflions fliall be awarded to |^.»3H-4 c»p.7. 

enquire of the default of juftices of alUfc, and of juftices of peace in " * * 5* "P-^- 
that behalf. 

« They fliall enquire of, hear, and determine all offences con- 

trary to the ftatute of 23 H. 6. concerning flierifs, under-ftierifs, 33 H. 9. 

and their clerks, coroners, ftewr.rds of iranchifes, baiiifs, and iof fliouung. 
keepers of prifons for e.vtortion, and for letting to bail fuch as 
were not bailable, or for denying of bail to them that ought to 
be bailed, &c. 

P Juftices of aflafe fliall take bail of him that is acquitted of P 3H. 7 car. i. 
murder within the year to anfwer to the api:>eal of the party, 5 Eliz. 
cap. ^. of Informers. 5 Eliz. cap. 4. of Labourers. 

^ Juftices of alfife of gaol-delivery, and of the peace, fhall en- q 7. 
quire of the defauh of coroners. 

' Juftices of affifc, &:c. fliall enquire of falfe making of leather. ' '8 HI. cip. 9. 

• Of amending of high-ways. « Of hunttrs in parks. " Of unlaw- ' 'y|'- "?• »"• 

full taking ot flflies. « Of forgery of falfe deed, r A^ainft de- « 5 1,; ,7p.* ^^J 

ceipt in hnnen-cloth. * Agaiuft perjury. • Of ufury and many « 5 El. cap. * 

other things, ^ 1 EJ. ca. 14. 

* Jufliccs of aflFife twice in the year ought to proclaim the ftatute * 5 ^^ "• 9» 

of 3Z H. 8. and other ftatAiUs' again ft unlawful! maintenance, a-VHVca*. 

^•hamperty, imbracery, and i:::]?.'.v:i;ll !"*' * ' '•• ^ ^ They ought to b 33 h. 8. ci 9. 


159 Juilices of Affize and Nifi prius. Cap. zj, 

proclaim the flatute of unlaw full games in their circuit. See the 
Cuftumer of Nonuraidy, cap. 19. 

^ Now concerning juliices of niji prius ^ they were firfl inflituted 
by the ftatute of W. 2. of ilTiies joyiied in the common bench, 
and kings bench : and their authority is annexed to the juftices of 
affife, and is hy force of a judiciall writ, and therefore we have 
joyned them under one title. And this appeareth in the judiciall 
wx'it oi niji prius^ wliich is: 

«W. i.e. 30. S3e 
the 2 part of the 
Inft. the expofi- 
tion of this adi. 
Vid. Fleta !. 4. 
c. 5. Vid. Hil. 
32 E. 3. m. 5. 
lee the authority 
of juftices of iiifi 
prius, m libro meo 

fo. 54. b. the pi. begun, Et auxhit en rifi prius grant de-vant Stonf. 

*Ti:e writ of nifi 

Reg. judic. 48. 
75. W. 2. ca. 30. 
6 £. 6. Dier 77. 


•J R. 2. ca, 7. 
iS El. ca. 12. 

9 El. pier 261. 

27 E. I. de fini- 
bus. F. N. B. 
241. e. 

Stat, de York. 
12E. 2.C.3.&4. 
2E. 3. ca. 16. & 
4 E. 3. cap. 2. 
14 E. 3. ca, 16. 

Edt. clauf. 
jcE. 2. m. 10. 

7.N.B. 240. e. 
.Stanf. 15^). 
Nifi prius in 
ireafon. 4 £. 3. 
cap. II. 
^ 24 E. 3. f. 25. 
rr.t.par. 37 E. 3. 
i;u. j8. f.N.B. 
HI. «• 

'*ioE,4. fo. 14. 

2iE.4. 18. 
■x Ma'': [>icr iro. 

Rex vlcecomiti faJutem. Pj\<ecipimus tihi quod venire fac' coram juf- 
ticiariis nofiris apud Wejim^ in o^ab. Sa7iSli Michaelis^ vel coram 
pijliciay iis nojiris ad affifas in cojn tuo per form am Jiatuti nofiri inde 
provii* capiend"* q^gnatis^Ji prius die Luuce prox' antefef^um, ^c. apud, 
^c. icnerint 11. ta?n milites qiiam alios ^ ^c. 

And by the faid aft the juftices of nijz prius have power to 
give j^idgment in affife of darrein prefentment and quare impedit. 

By the ftatute of 7 R. 2. niji prius fhall be granted as well in 
the exchequer as elfevvhere. 

Of ifiues joyned in the kings bench, common bench, and ef- 
chequer, the chief jnftices, or chief baron, or in their abfenccs 
two other juftices or barons of the faid feverall courts, as juftices 
of niJi prius for the county of Midd. within the terme, or four days 
after fliall feverally try, &:c. and that comniiffions, and writs of 
niJi prius fliall be awarded, &c. It is to be obferved that there is 
but a tranfcript of the'^it'Cord fcnt to the juftices of ni/i prius. 

By the ftatute-of 27 E. i. dffimhus^.cz. 4. it is provided, Qiiod 
inquiftiones et recognitiones capiantur tempore vacaticnis coram aliquojuf- 
ticiario de utroque banco, coram quibus placitum deduBu7n fuerit. See 
the ftatutes of York, 2 E. 3. cap. 16. 4 E 3. ca. 2. and the fta- 
tute of 14 E. 3. cap. 16. which ftatute doth provide that niJi prius 
may be taken in every plea real and perfonall before two, fo that 
one be juil ce of one of the benches, or the chief bnron or ferjeant 
fworn, without any regard where the plea depended, and this ftand- 
£th yet at this day. Vid. 42 E. 3. cap. 11. 19 H. 6. fol. 47. 
33 H. 6. fol. T4.' 16 H. 7. tol. 14. 5 Mariae Dier fol. 163. 

Concordatum fuit per 4otum concilium regis, quod nullus vicecomes aut 
coronatorfiat jujliciarius ad af/Jfas rapiend'.gaolas deliberarid\ tranfgrejs* 
audiend^ et terminand\ feu ad aliqucd aliud officium jufiic^ faciend\ en 
quod debcni ejfe ijitenderAcs aliis jujiiciariis. Which act is declaratoiy 
of the common law, for that (as by the reafon yeeWed in the aft- 
it appeareth) thefe offices be incompatible, the one being atten- 
dant unto, and within the controlment of the other. 

14 H. 6. cap. I. Juftices of 7iifi prius have power in all cafes 
of felony and treafon to give judgmejit as well where the pnfoner' 
is acquitted, as where he is attainted, and to award execution, 

* Where the king is a party, a niji prius may be granted, if the 
kings atturny aftent unto it. 

la appeal of murder, robbery, and rape brought in the kings 
bench, if the parties be at iftuc, a niji prius may be granted before 
juftices of aiftfe. z^ E. 3. 30. 14 E. 3. N/Ji prius 16, 22 E. 4, 
19. 21 ri. 7. 36. 9 El. Dier 261. 42 E. 3. c. 11. 8 H. 5. 6. 
^ But it i'^: to be obferved, that if the appellee be acquited belore 


Gap. 27. Juftices of Afiife and Nifi prlus, i$o 

jufticcs oini/i piusy they have power to acquit, &c. and give judge- 
ment, as is aforcfaid. 

* They may alfo enquire and judge of the aUbettors and dim- < See th« x part 

mages by the Ihtute of W. 2. cap. 12. and not by the faid ndt of of ihelnrt. uoo« 

14. H. 6. And I'o it is if the appeal be brought before the juilices **•'• "ctofW.*. 

of aflife, they liave alfo power to enquire and judge, ut/uftra. ^*^' '*' 

** Thefe juftices of «i^ /);///; were inftituted for two caufes, viz. * »7 E. 1. flat 

1. Propter intoUrabikm Jaipur am juratorum^ et in excnerationem jurato- ^ fi""k»u%c«p.4« 

•;. 2. Ad celerem jujlitinm in ca parte exh'tbendam. «g . 1 • 

Inquijitiones et jurat* in placiio terrce capicnd' qua ma^rue non funl W. 1. cap. 30. 
examinationcs^ capiantur in patria^ Ci^c. 

And hereupon a prohibition is grantable to juftices of aflife, Rc^iri. i26. 
Quod non caperent in patria inquijitiones qua magna indigent examina- 

By the originnll inflitution of juftices of aflifcs and oi niji prius, '4 E. 3- »^- Br. 

the tryall fl'ould be before two at the leaft, and it were much for f|^*|,*j*'o ^^^' 
the advancement of juftice and right, to l.ave the law put in due 
execution, iov plus "vident cculi quam ocuhts^ and fpecially in pleas of 
the crown concerning the life of man, in regard whereof they fliall 
be worthy of greater allowance. 

Before the juftices of aflife in pays a forain plea, viz. villenage ^»ermanufcript. 

was pleaded, for tryall wiiereof the record was removed into the ae'afl"*' ^'"* 
common bench, and there a venire fac* was awarded, and retorne, 
fervie^ and a habeas with a viji prius was prayed. And it was 
obje6^ed that the iflue was not joyned in bank, nor judgment to 
be given there, and yfet in the end the prayer was granted, as in 

a • certificate, upon an aflife a nifi prius fliall be granted : * and fo r j^j i 

it is upon a forain voucher, receipt fliall be granted, and a tryall ♦ 7 h. 4. 45. 

by a nifi prius had. 8 E. 4, 16. 

^ The juftice of niji prius may grant a taics de circumfiantihus^ F.N. B. 183.11. • 

cither when but one or more aj)pcar of the principall panncll, or * 18 E. 3. 1. 

where eleven doc appear: and all the jury may be of the tales dc 49 E- 3- y» 

arcumjiantibus^ as it was upon a tales at the common law. ^ icHi ca 6 

^ Where the king is party, a ni/ prius is grantable for the king, ^^ EI.Dier 376.* 

but not for the party v.ithout aflent of the kings atturny, and i'o 4«k5Ph.icMar. 

are the books to be' intended. ' "r- 7- H £•• 

«• In attaint the pLiintif craved a nifi prius, and becnufe one of ^- 9- "^ ^'; 

, . . ^ -r • XT ^ 1 • II cap, iz. Vid. 

the petit jury was priioner in Newgate, and came in ward and gEiix.DJer 14 c. 

pleaded, and was remanded, and if a nifi prius fliould be granted he c 25 e. 3. 39. 

Ihould lofe his challenges, the court denyed to ^ grant any niJi prius 18 E. 3. 58. 

ptherwife a n-Ji prius may be granted in an attaint. '4 E- 3- Nifi 

^ In trefpaife between the duke of Exeter and the lord Cromwell, ^!.'"*J, h*? 14! 

the councell of the duke moved for a ntji prius ^ and for that the f. N. B. 14a 

duke was a prepotent prince in that country, and the venire fac* be- Stanf. pi. cor. 

ing returned, there was a great rout in the hall, fo as if a niJi prius 'S^* "• •>• 

file u Id be granted great inichief might enfue, therefore no nifi prius ^JF* 3- ">• *• 

was granted. ^ t^,i,!xl^* 

More you may read of the writs of aflife and oiniji prius in our n e. 3. 17. 

books, that which hath been" faid concerning the jurildiilion may 6air. p. 7. 

fufticc. It is called a writ oi niji prius^ but the words * \% ^- 3- ^^'.^ 

of the writ are Si prius, ^c. And albeit the authority of juftices of J'/^^; "'.^JJi'^ 

aflife (as it hath appeared) hath by ac'l of parliament been exceed- j,. 

ingly enlarged both in di<;nity and multitude of caufes, yet they re- f 3a H. 6. 9. 

tain their t;rft and origiaall nair.e, albeit afliles hre in ihefc days nE. 3. 16, 


F.K.B. J4i.a 
Dicr4 £1. 215. 


J uftices of Oler and Terminer. Cap, 


very rarely taken before them. See in the chapter of Juftices of 
Peace powers and authorities lately granted to juftices of aflife and 
juftices of 7uji prius. 

i 1623 


Juflices of Oier and Terminer, 

For generall 
conmiiffions, fee 
4^ afT. pi. 5. 
z R. 2. cor. 47. 
pi. com. 390. 
Ccuntte diLeW 

Hereupon they 

arc- called juftices 
of oier and ter- 

*•' Nota, thefe 
general! words. 

* Notr. 

THE authority of juftices of e:>r and terminer is by commiffion. 
Of coinnnfiions of o/Vr and termhier there be two forts, one ge- 
ncraJl, fo called becaufe it is generall, in reipeft of the perfons^ 
the offences, and the places where the offences are committed, the 
which conimillion foUoweth in thefe words. 

Elizahetk Dti gratia Anglic ^ Francia^ et Hi&ernio' regbia^ fidei de- 
fenfoTy ^c, Charijfimis confangubieis fuls WiUlelmo marchioni Wintony 
Henrico comiti Southi\ ^c. ac dllefiis et jidelibus fuis Rogero Maniuood 
■uni jujiic^ fuorum de banco ^ jfohanni Jefferay uni viftic ad placita coram 
nobis tcnend* aj/ign\ Johanni Arundcll 7niliti, ^c. Johanni S. Joknt 
Humf» IFalrond^ William Pool^ Petro Edgecombe^ Thomas Morton^ ^c. 
falutem. Sciatis quod aj/igftavimus vos et ires vejiruyn^ quorum aliquem 
'vejirum vos prof at' Roger um Mamvcod et Johannem Jefferay unum ejfe. 
vohimus jujiiciarios nofiros ad inquirendum per facr amentum proborum e^ 
legalium hominum decern^ nojius Souiht' Wiltef. Dorfet^ Somerfet^ Devon, 
et Ccrnub. et ecrum quolibct^ ac aliis 'viis^ modis^ et mediis quibus melius fci- 
veritis^ aut poteritis tam infra liber tates quam extra^ per quos rei veritas 
melius fclri poferit dc quibiifcunque proditionibus mijprijionibus proditiojiumy 
infurre^ionibus^ rebellion'ibus^ murdris^ felcntis, homicidiis, interfe^ionibus^ 
hurglariis^ raptibus muUerum^ congregationibus et conventiculis ilUcitisy 
verborum prolationibus^ coadjutationibus^ mifprijionibus^ confcederationibus, 
faljis allegantiisy trarifgrejfwnibus^ riotis^ rout is ^ rettntionibus^ efcapiisy 
contemptibiis^falfitatibus^ negligentiis^ ccncelame?itis, jnanutenentih, oppref- 
Jionibus^ cambipartiis^ deceptionibus^ et * aliis malefaflis^ offenjis^ et 
injur a s quibufcunque^ nee non accejjar^ e.rundem infra coni' pradi^^ et 
eorum quemlibet^ tam infra libertatis^ quam extra per quofcunque et qua- 
Jitercuuque habit\ fad\ perpetrat' five commifs\ Et per quos vel per 
quem^ cui vel quibus, quando^ qualiter, et quomodo^ ac de aliis articulis 
tt circumfiantiis pramifs. et ecrum aliquod vel aliqua qualiter cjmque 
co7tcernen. Et ad eafdem proditiones et alia picemiffa (hac vice) au~ 
dlend. et ter?ninand. fecund um legem et confuetudinem regni ncfiri An- 
gli<^' Et ideo vobis mandamus quod ad certos dies et loca quos v:s, vel 
/res vefirum, quorum aliquem vejirum ex vobis prafat. Rcgei U77i Man- 
mood et yi:han7ie7n y^fsray U7tum (ffe volumus, ad hoc piovideriiis dili- 
gent er fupcr pramifis faciatis i7iqufitiones^ et premiffa om7iia tt fingula 
audiatii et terminetis, ac ea facialis et expleatis in for77ia pr^difia 
* fa^uri i7ide quod ad jujlitia77t pertinet fecundimi leg€7n et corfuetudl7ie.7n 
regni ncfiri Anglia. Salvis nobis amercia7nentis et aliis ad nos i7idc fpec- 
tantibus. ]Mandavin:us enim vicecomitibus nofiris com* prcediH. quod ad 
certQS dies et Icca, quos vos vel tres vcfirwn^ qucri'.7n aliquem vfiruin 


Cap. 28. Jufticcs of Oier an J Terminer. ^163 

ex vobis pr^efat, Ro^erum Mmnoooil et JJiannem Jffffra^ unum ejje 
voIstmuSf eis fare feceritis vtnire fac* cvnm vobis^ vd tribus ve/lrum^ 
quorum aliquem * vcjlrum v^bh prttfat'' R^^^rrum MamoocU el *Johamtein 
Jeffcray unum effc 'volumus^ tot et tales prcbos et If gales hotnines tie hnl- 
livis Juts tarn infra l't6atates^ qunm extra per quos ret Veritas melius 
fciri poterit et inquiri. In cujus rei tejlimonium has literns nojlras Jit ri 
fecimus pattntes^ Tejle vie ipfa apud IV^iflm* 2 y Me Junii anno rej^ni 
fto/iri tiecimo oflavo. 

t Regift. iir, 

2 Particular commiffions of oier and terminer fo called in refpei^ p^ jj g^* 
of the perfons of the offences, or of tb.e places, whereof you fliall iii. For ojr's- 
finde five pre fidents in the Regifler: f i. Againft the bifliop of culaV comm-r. 
Winchefter and his minifters. 2. De navefrafla^ if the goods fionsf-e 
ought to be taken for wreck. 3. Of divers oppreflions, &c. ex- 4» ^J P'- '*• 
tortions, &c. by the king? mini iters. 4. Of oier and terminer for 29 e /"-q 
the prior of Daventry. And 5. for the king in time of vacation, Rot.ciauJ. 
which you may reade there. J8 H. 3 m. 1 5. 

■ Concerning tonimiflions of oier and terminer ten conclufions '^^ P^^ro de Rj- 
are to he obfcrved. i. That oiers and termiiiers flmll not be Tj'g 
granted, but before the jnftices of the one bench or the other, or 34 ^\}.lll'l 
the juftices errant, and that for great or horrible trefpailes, of the To be named b* 
kings efpecial grace, according to the ftr.tiite in the time of his ^^'^ ^ou^t an* 
■* grandfather. &ct"''"''^* 

^ And in the Regifter there is '^ fuperfedeas^ quia no^t enormis of -2 E " ca*'*^ 
tranf^re//io^ which word [enormis] is in the llatute of W. 2. uhi fttp. which expends t» 
** To coiTimiflioners of oier and terminer a writ oi fuperfeJias was Enquiries, 
delivered, quia enormis tranfgrejjio non eji^ idea fupcrfedeant^ fior it was ^ .''* 4* cap. 9. 
not but for cutting down of trees. « And afterward a writ of pro- f^ "'^' P*'** 
cedendo under the great feal of later date was delivered to them to for conimiffiy^s' 
proceed fecundum legem et confuetudinem An^lice non objlante atiquo of inquiry wluc 
mandate, fjfc. by vert ue whereof, notuithllanding the fornier writ, Perfons ought tc 
they did proceed by advice of nil the juftices. For a writ of/uper^ ^* named: <n 
fedeas is one thing, and an abfolute repe.ile or countermand of the bctwe^cn'co **^ 
coinmiflion it felfe is another, hfnpcrfedeas is but to ft:iy, or for- minioncrsofea- 
bear the proceedings, * that \s, fupa- advifamentum federe, and is S^'ry, and o( 
not mes un/urcejfe de advifemeni. And fuch may the cutting down "'f *"*^ tcr- 
of trees be, as it may be emrmis tranfgrefpo, and therefore nolwith- b'ly'^j 
(landing a fupeifedeas the caufe may proceed by a writ of proce- cap. 20! '^ ' ' 
dendo. But after an abfolute n^pcale or countermand by the king *^Rfgift. 124, 
of tlvi co-nmiflion it felf, the commiflioners cannot proceed after »*5-^£-3. 
by force of any procedendo, but there muft be a new commiifion, J'P- *• 

The fecond conclufion is, that comnuflTions are like to the kings v;? n * '***'* 
writs, luch are to be allowed which have wan-ant or law and con- and oier and 
tinuall allowance in courts of juftice. For all commilfions of new tcripiner 4. 
invention are againft law untill they hive allowance by a(ft of par- ^ R«gift. jh* 
liament. *" Commiflions of nczrll inquiries are declared to be void : J^* . , 
2 commiflions to aflay weights and meafurcs (being of new inveii- f is^'-jtcap'^l^ 
tion) arc declared to be void, and that fuch conimiffions fhould f iSE-3. tap.4^ 
not be after granted. So as a commiflion is a delegation by war- 
rant of an a(^ of parliament, or of the common law, whereby jurif- 
diiftion, power, or authority is conferred to others. Sapientis ju* 
Hic'is ejl c'gitare tantum Jibi rjfe perm^Jfwn, quantum commijpim et eredi'^ 
turn. And it is a good rule for all commiflioners to hold the likf, 
and ever to keen thcir'fclvcs w'thin tliL'ir commiflion. 



Rot. par. 2 H.4* 
iiu. Z2. 

Rot. pari. 511,4. 
hu. 39. 

Vid. 42 ad p. 5. 


42 Aff. p. 12. 
Vi. F. N. B. 
xio. b. Regifler 
125. &c. 

3 Mar. Br, com- 
miiTions 23. 

Vide 29. aff. 33. 

t-j;i. 2 H. 4 

lot. 4. 

Empfons cafe. 

Jufticesof Oier and Termineri Cap. 2 Si 

The commons do petition, that ccrtaine commiflions lately fent 
to cities for the making of certaine boats and buUingers being 
done without aiTent of parliament, might be repealed. The king 
doth anfiver, That after conference with the lords, reafonable an- 
fwer fliould be made. And that thefe commiilions took no efFe(5l, 
appeareth in this, that no further complaint was thereof made, and 
no fuch commiffion was ever after gi'anted. 

At the petition of the commons, the king granted that one Ben- 
net Wilman, who was imprifoned to anfwer before the conftable 
and marfliall of England^ fhould be tried according to the com- 
mon laws of this realm, notwithflanding any commiffion to the 
contrary; And thereupon a writ was accordingly directed to the 
juflices of the kings bench, as there it appeareth. Of thefe kindes 
many more authorities might be cited, but let us return to our juf- 
tices of oier and terminer. 

In the reigd of E. 3. the juftices were fo carefull, that no inno- 
vation fliould creep in concerning commiffions of oier and termi- 
ner, that certain juftices having their authority by writ, where 
they ought to have had it by commiffion, though it were of the 
forme and words that the legall commiffion ought to be, John Kni- 
vett chief juftice by the advice of all the judges refolved, that the 
faid writ was contra legem. And where divers indidments were 
before them found againft T. S. the fame, and all that was done 
by colour of that writ was damned* 

The third conclufion is, that juflices of oier and terminer can- 
not proceed upon any indiftment, but upon indi6lments taken be- 
fore themfelves, for their authority is, ad inqidrend\ audknd\ et 

The fourth ccriClufion, that juflices of oier and terminer may 
upon an indicftment found proceed the fame day againfl the party in- 
dialed. But againfr this there feems to be great authority : for in 
Kelwey fo. i ;;g. b. it is thus faid. Mem. que en breife de oier et ter- 
miner. P. 9 i7. 8. fur le infurredion in Londres ilfuit determine clere- 
ment per touts pifuces Dengliterre^ que juftices d'oier et termiiicr ne ptnr 
inquire itn jour., et me/me le jout determim., nient fluis que jujiices de 
peace ; mes jujiices de gaol delivery et jujiices in eire poien Lien. It 
may be that he that fet down this cafe took it upon trud, for it 
agreetli in effeft tot idem verhis with the Chronicle in 9 H. 8. 
fo. 843. and it is erroneous in divers main points, i. That the 
oier and terminer was by writ, where it was and ought to be by 
commiffion, as hath been faid. 3. That juftices of oier and ter- 
miner cannot enquire one day, and determine in the fame day, 
which without qucftion they may do : for proof whereof we will 
cite fome few records in flead of many. 

Thomas Marks bifnop of Carlifle before commiffioners of oier 
and terminer was indi^led, tried, and adjudged all in one day, 
for high treafon. 

Die Ltince poji fejlum Sam^i Michael is, anno i H. 8. before Fi flier, 
Brudnell, Palmes, &c. commiffioners of oier and terminer. Sir 
Richard Empfon was indided of high treafon and tried all in one 
day. And we defirous to fee the entry, upon not guilty pleaded, 
it is thus : Ideo inter diB"* dominum rcgem et di£V Rich. Empfon m'di^ 
tern in in/lanf diem ad horam prifnarn poji meridiem^ ^c. apnd caftrum 
de Ncrthampion vaicrunt, (^c. qui nee, ^c» ad reccgrofc\ ^c, .Ad 

Cap. 18. Juflices of Olcr and Terminer. 164 

Jim ^uidem diem horant^ rt cnjlrum de NorthampC venit coram />r«r* 
'u' jiijiic'' pr^iP Rich. Emf'f.n, ^c. 

2 Dec anno 3 K. 6. at VVcftni. before Richard Lifter, Edward 
Mountagiie, Roger Cholmclcy, Edmond Mcrton, William Port- 
man, and HumJrey Browne, and other commilfjoners of oier and 
terminer, Robert Bell was indicted of high trcafon nnd tried the 
fame day, 10 Dec' anno 3 E. 6. before Sir William Vortmaii and, 
other juftices of oier and terminer at Reading in the county of 
Berks Thomas Bonham was indicted of high treafon and tried t^ic 
fame day, 4 Augiifti 10 Eliz. John Felton was before commif- 
fioners of oier and terminer in London indi(^ed of high treafon, and 
tried the fame day by the advice of all the judges of England. ^ 
* Nota, the award in the roll by the inftices of oier and terminer ^J ^"' ^^" 
to the fheritre to returne a jury, is not fufiicient ; but there ought rlencc agrccth 
to be a precept to the flieriffe, under the feals of the commilfioners 4 H. 5. Ut. En- 
for tlie returning of a jury, but otherwife it is in the kings bencii. q«<^ft' 55* 

^ The third error in the faid cafe of 9 H. 8 that juftices of peace ** ^^ E. 4. cor. 
cannot inquire and try the fame day, which withont queftion they 44- ^"1<1«» ^o* 
mav, for they are fpeciall juftices of oier and terminer: and where- °° *** 
fore juftices of oier and terminer flionld not try the fame day, as 
well as juftices of gaole-delivery, and jiiftices in eire, no found 
reafon can be given. 

* The fifth conclufion is, that if any offence be prohibited by ^ViAtLeftatutir 
.iny ftatute, and name not in what court it fliall be puniftied; or l?r^'^«*^" '"' 
?i the fl:atute appoint that it fliall be puniflied in any court of re- jn.rofiWs*' ^i 
cord : in both thefe cafe it may be heard and deiermined before regrators.' 
juftices of oier and terminer. And fo it fcemeth to me if * the fta- 33 H. 
tute appoint the penalty to be recovered in any of the kings courts Of unlawful! 
of record, according to the opinion of Catlyn, Sanders, and V.^^^' 7 
W^hiddon ; for the court of oier and terminer is the kings court of sec ma^nv fta- 
record. ^ tur-* wherein 

The fixth conclufion is, that the king may make a commifllon juftices of oier 
of affociaiion dire(5ted to othei-s to joyn with the juftices of oier and ''"^ termmtr an» 
terminer, and a writ of admittance to the juftices of oier and termi- '*^p iffcT 
ner to admit the others into their fociety, which writ is clofe. •- ^ J 
There is alfo a writ of Si non omnrs dire(fted to the juftices of oier 
and terminer and to their aflbciates : the formes of all which you 
may f"ead in the Regifter ub'tfupra^ and in F. N. B. uhifupra. And 
in all thefe commilTions and writs, the juftices are directed with 
this rule, FaHwi quoJ ad jujiitian: pertinct feaindum legem et confuetu- 
d'lnem Angl'ue^ which is a true mark of a lawfull commiffioii. 

Tlie f?venth. If the juftices fit by force of tlie commiflionj Commiffioinj 
and do not adjourne the commilfiony it is determined. ^''* '^ 

The eighth, [utiices of oier and term.iner, or juftices of 9 H.4. coror. 
peace, cannot afligne a coroner to an approver; for it is not J<f^i. ^*V ^ 
within the commiliioa of eitiicr of ihcm, but juftices of gaokodeli- 
verv may do it. 

The ninth. Juftices of oier and terminer fhall fend their re- 9 - 
cords «nd proces determined, and put in execution to the exche- 
quer at Mich, every year to be delivered there to the treafurer aud 
chamberkins, &c. to keep them in tlie treafury. 

The tenth. None of thefe commilfioners, or of afCfe, or gaole- ^^ Aff". p. S. 
delivery, or of the peace, or otlier of the kinps comn.illioncrs arc L. t 
•ountermanded by any new commiflion, unleifc the new commif- »o ^ 4- ♦"" - 

fion *-^ 

165 Speciall Juftices of Oier and Terminer. Cap. 29. 

fion be Ihewed unto them for fo many as it is fliewed unto ; or 
that it be proclaimed in the countj^, or that the new commiffioners 
do fit and keep their feflions by force of the new commiffion, the 
former commiffion is countermanded. 

Kelwey n6. 
Br. commifl*. 6, 
Vi. infra pag. 
169. Thefta- 
tute of 2 & 3 

Ph. and M. cap. 1^. for cities or towns corporate being no counties, but it ektcndeth net to com- 
miffioners of oier and terminer. 

1 E. 6. ca. 7i 

« Nota, the ge- 
neral! words. 

And a right profitable flatute is made concerning this matter, viz. 
That no proces or fuit before any juflices of affife^ gaole-delivery, 
oier and terminer, juflices of the peace, or * other of the kings com- 
miflioners, fhall not in any wife be difcontinued by the making or 
pubhfhing of any new commiflion or affociationj or by altering of 
the names of any of the faid jilflices or com.mifTioners, but that 
the new juftices and commiffioners may proceed in every behalfe^ 
as if the old juftices and commiffioners had flill remained and con- 
tinued not altered* 

tl66 3 


The Courts of Speciall Juftices of Oier and Ter- 
miner, of and concerning, i. PurveyourSo 
2. Mifdemeanours of Villaines, &c. 3. Sums 
of Money colleded for Houfes of Correc- 
tion, Sec. 4. Colledges, Plofpitals, and cha-^ 
ritable Ufes. 

i6 E. 3. cap. 4. 
Of purveyours. 

Buyers of vlc- 
tuall, &c. 
takers of car- 

Andfirft of Puvvepuri, 

THIS court is raifed by the ftatute of 36 E. 3. whereby it is 
enafted, That commiflions fhall be made to two good men 
and lawfull of every county, and the third to be of the kings 
houfe. So that if any of the three come not, the two fhall pro- 
ceed to enquire of the behaviour and a6ts of the faid buyers and 
takers, and how much the faid buyers have taken and bought; 
and how much carriage : and to heare and determine the contempts^ 
outrages, and trefpafles in that behalfe, as well at the kings fuit, as 
of every man that will complaine of them. 

Thel'e commifTions are to be granted ex merito jujtltite^ and can- 
not be denied. And it is to be obferved, that the aftion or fuit 
given by the faid ad is not popular ; for either the king only is to 
have it, or the fubjed only that will complaine. 

And for better information to be made to the faid juftices of the 
things aforefaid, the fteward, treafurer, and controller of the two 
houfes, (viz. of the king and queen) at every quarter or halfe 
year fliall certifie into the chancery the parcels taken in every 
towne, and of every perfon; and the chancelor fhall fend the faid 

' certitficaie 

Cap. ig. Speciall Jubilees of Oier and Terminer. i66 

critificatc to the juftices which fhall be {o afligned. And tlut this 
ni'i extt-nd ami liold pl;»cc as well agaiiill the purveyors of the great 
liurftrs of the hid two Iwufcs, as agaiuft the buyers or takers before 

2 . Csnccrnlng Alljdemeanours^ . ^V. of Viiiain^ 
See :1 e ftatutc of i R. 2. cap. 6. i R. 2. tap «. 

3. Of and for Sums of Money collet ed for Moufes of CorreC" 

tion^ or foi' the Foore-, i!fc. 

This court is raifed by the ftatute of 39 Eliz. cap. 4. as by 3^ z\'n. cap. 4. 
the hme appenreth, wherein this is to be oblerved, that their pro- i Jac. cap. 7. 
ceedings, judgement-^, and executions fliall remain good and availe- 
•able in law, without any redrcfle to be had by fuit in any other 

See the Second part of the Inftltutes the expofilion of thefe fta- 

4. Ccncermng Colkdges^ Hofpltats^ or Ahnes-houfeSy or for 

charitable and lawfull Purpofcs and Ufes, 

It is lawfnll for the lord chancelonr or loi'd keeper of the ^reat 39 Eli«. rap. <;. 
ftflle, and for the chancelonr of the duchy of Lancafter (for lands f 16^ ] 
within the county pala;ine of Lancafler) to award commiffions un- 
der the great feale, or feale of the county to the bifliop of tl)e ^ ^,^ .^ 
dioces and his chancelor, and to other perfons of * good and found tfrefred^A-T - 
behaviour, to enquire by the oathes of twelve lawfull men, &:c. as b? a cornmif- 
by all other good and lawfull means of all and fingular colledges, fi ner. 
hofpirals, and other p'aces, foXmded or ordained for the charitable CoIIedeti in 
reltefe of poore, aged, and impotent people, maimed fouldiers, botHuniverfirir', 
fchooles of learning, orphans, or for fnch other good, charitable, of VVcfln. Ei. 
aiTd lawful! pnrpofes and intents. And alio of lands, tenements, ^?"*-/*'' ^^"'''" 
and hereditaments, leafes, gond^ asid chattels given or appointed cjth^drau"'^ 
for the like lawfuH and charitable \\k>i. As alfo for reparation church^f, Jtc. 
of highwnyes, of bridges, and fcabnnks, for maintenance of Iree- arc excepted, 
fchooles and poore fcholars, and of orphans and fatherlefTe chil- I-' "tends not to 
drcn, and fnch like good and lawfull charitable ufes. And to en- J,*"f^*j;^/|*j;' 
quire of the abufts of mifdcmeanours, mif-imployments, falfities, pnrare where* 
(ieirauding the trulis, alienations, and mifgovernments, &c. And thereisa fpccinll 
?.fpLT fnch inquiry made upon hearing and examining thereof to ppvcrno«i-, *• 
let downe fuch orders judgements, and decrees as the faid good ^,7^'',' 
and charitable ufes may be truly obferved in full, ample, and mofl ^^J^fl' 
iiberall fort, &c. Which orders, judgements, and decrees (not be- \ 
ing contrary to the order«, ftatutes, and decrees of the donors or c . 
founders) fliall ftand * firme and good, according to the tenor and Buui.i.exc.p- 
purport thereof: which orders, judgements, and decrees arc to be '""' "'"'•^' ' ' 
certified under the feals of the commiflioners refpc6tively, either 

tion fxttr.A% t j; 
to ■ 

prieved may comp'.nin tn the loH cban':'l<^ur or \or\ Icfp^r, or ^'> ♦>>€ cb»nC-lour oj the J.4J 
duchy, f r tliL-'r lednlTe therein, &c. and th")- havr Pov;r r© judge, S:c. accord, ng to cqu'ty 

ly . o iiitg 

I (^J Juftices of Gaolc Delivery, Cap. 30, 

into the chancery of England, or of the county palatine of Lan- 

• caller. 

It is to be obferved that when any a6t of parliament doth an- 
thorife the lord chanceloiir or lord keeper to make or grant any 
commlffionimder the great feale, that he may make or grant the 
fame without any further warrant, becaufe the king is party ti> 
the aft of parliament, and there cannot be a greater warrant tee- 
the lord chancelour, &c. then the act of parliament. 

[168] C A P. XXX. 

Juftices of Gaole Delivery- 

Their Authority is by CommifTion in thefe Words. 

tU comn^hn of JpLIZABV^TH, ^c. Dilc^h et fiJeUhus fuis AB, CD. 

gaol-deli-veiy. "*-^ ^c, Salutem. Sciat'n quod ccnJiituimusvoSitres^ et duos vejlrum^ 

Note, they are quorum aliquem veftrum vos pr^efat^ A B. ^c. unum effe volumus^ 

called the kmgs juftiiiarlos nojlros ad ^aolam mftram cajlri noftr't de C. de * prifon^ in 

*^ Their com- "^ f^//?' hac vice delihcrand, Et idea vohh mandamus quod ad certwn 

jniflion extends diem quern vosy tres vel duo ve/irum (quorum vos prafat* A B. ^c. unum 

•nly to them (JJe 'volumus) ad hoc prov'idcritis^ conveniatis apud caftru7n pr^di^^ ad 

that are in pri- gaolam illam deliberand' * faBuri inde quod ad jujiitiam pertinet fecun- 

^""i dum legejn et confuetudinem regni no/iri Anglia. Salvis nobis amercta^ 

mentis et oliis ad nos indc fpeBa7itibus. Mandavimus enim vie'* nojlro 

com^ nojiri M. quod ad certtan diem quern vos, tres, vel duo veftru7n (quo- 

ru/n vos prafnt'' AB. et CD. unwn cjje volu?nus) ei fcirefeceritis, omnes 

trifones eju/dem gaola et eoruni attachia?nenta coram vobis, tribus, vd 

duobus vejirumy (quorum ali quern vejirum ex vobis prcefat. AB. et CD* 

unum ejje volumus ) ibidem venire fac. In cujus rei tejiimoniutn has UtC" 

ras nojir as fieri fecimus patentes. Tcjle, &'c. 

See the fecond 1> By the law of the land, ne homines diu detineaniur in prifona, but 

partoi'tbelniht. that they might receive /)/^«<j;w et cclercm jufiitiam, this commifTion 

itat. de Glouc ^^^^ inftituted, and by this commiliion oaols ought to be delivered 

*> 4E.' 3. cap. 2. ^ thrice in the year, and oftner if need be. 

17.R. z. cap. 9. Their authority is by this commiflion, which confifteth in ^ few. 
•^ Thrice in the words. Conflituimus vos jufiiciarios nojlros ad gaolam nifiram caflri 
year, and oft- noJlri de C de prifonibus in ea exifientibus hac vice, delibermid. ^ Thefe 
^N'ta"" w but juftices ought to be, bone gents et fagei aiders que des places, £sV. 
rftcauall words. Upon this authority and by ftatutes given unto them, thirteen 
* 4 E. 3. cap. 2. conclufions do follow. 

f 4E, 3. cap. 2. I. <■ Juftices of gaole delivery may arraign any man that is in 
3Mur.Br.C0m- prifon in that gaole upon an indidment of felony, trefpaflc, &c. 
Tr '^"coron 47. before juftices of peace, thoiigh it were not found before them- 
felves, which (as hath been faid) juftices of oier and terminer can- 
not do. Juftices of peace fliall deliver their indi6tments to the 
juftices of gaole delivery. 
^ H, 5. enqueft 2. They ftiall take a panell of a jury retorned by the ftieriffe, 
5S- without making any precept to him, as juftices of oier and ter- 

miner (as hath been faid) ought to make, and the reafon of the 



Cap. 30. Jiiftices of Gaole Delivery. 

difference is, bccaiifc a genrnill commandment is made to tlie ftie- 
ritfc by the jullices of gaole delivery to rctorn juries againft their 
comminj^: but if they have a fpeciall commiflion, othcrwifc it is 
by Hankeford. 

3. They may deliver furj^ej^s for felony, &c. by proclamation, 
againft whom there is no fuflicicnt evidence produced to the great 
inqueft to indift them, &c. which jufticcs of oicr and terminer, 
or juflices of peace cannot do. 

4. They may inquire and rake indiftments of felorjy, &c. of 
piiioners before thetn, and proceed upon them. And l"o was it rc- 
iblvcd in an appeal of murder brought by Apharry againfl Morgan, 
who pleaded that he was autfrfoiiz, indi£Ved and convifted of the 
fame felony, and had his clergy before jullices of gaole delivery, 
and pleaded over to the felony (and the }>lea allowed.) And \o 
may jullices of oier and terminer doe, which is to be obferved by 
the judicious reader, for both of them have authority to enquire, 
heare, and determine of fuch as be prifoners in the gaole : and in 
that cafe they have a concurrent authority. 

5. If a man be indicfled before jullices of peace, and there- 
upon outlawed, and is taken and committed to prifon, the juftices 
of gaole delivery may award execution of this prifoner. 

6. They may affigne a coroner to an approver, and make pro- 
ccs againft the appellee in a forein county. 

7. * They may punifli thofe that let men to baile or niainprife, 
which are not bailable by law, or fufFer them to efcape. 

By the ftatute of i E. 6. it is provided in thefe words. 

And be it, &c. That in all cafes where any perfon or perfons 
heretofore have been, or hereafter (hall be found guiity of any 
manner of treafon, murder, manflaughter, rape, or other felony 
whatfoever; for the which judgement of death fl\ould or may en- 
fue, and fliall be repried to prifon without jadgement at that time 
given againft him, her, or them fo found guilty, that thofe perfons, 
that at any time hereafter ftiall by the kings letters patents be af- 
figned juftices to deliver the gaole where any fuch perfon or per- 
fons found guilty, fliall remain ; ftiall have full power and autho- 
rity to give judgement of death againft fuch perfon fo found guilty 
and repried, as tiie fame juftices before whom fuch perfon or per- 
fons was or were found guilty might have done, if their commif- 
fion of goale delivery had remained and continued in full force and 

8. Here by the judgement of the whole parliament this conclu- 
fion doth follow, that juftices of gaole defivery, according to the 
generality of the words of their commiflion, may deliver the gaole 
of prifoners committed for high treafon, which we prefer before 
any private opinion, efpecially concluding with a queie. 

9. » Juftices of gaole delivery fliall fend their records and p/TO- 
ces determined, and put in execution to the exchequer at Michael- 
mas every year to be delivered there to the treafurer and chamber- 
lains, &:c. to keep them in the treafury. 

JO. ^ Juftices of gaol delivery may receive appeals of robber)* 
and murder by bill, but the appellees muft be in prifon before 

i : . ' To thefe juftices commiftions of allbciit'on, and writs of 

O c admittance. 



Pafch. 29 llir. rege, in- 
ter Apharry and 
Morgan in ap- 
peal. 9 H. 7. 9. 
2R. 3.coron.47. 


1511. 7. 5b. 

28 E. 1. 
Stanf. pi. cor. 
143. c. 

• 27 E. I. ftat 
4E. 3. cap. X. 
I & i. Ph. and 
Mir. cap. 13. 
I E. 6. cap. 7. 
Treafon, 5cc. 

27 E. T. d« «. 
nib. cap. "{, 
Sec iS E. I. Oe 

ApprllJtis, the 


V. a R. -. cor. 

A-f. cife Jc Cj- 

ii-.S,. :■;. 

Stan;", p'. cor. r -, 
58. .V xSz. t.' 
* 9 F- 3- cap <; b. 
'» 10. 
DlcT fo. C9. 
3 H. -. cap. f. 

St. I '. -■. L, r. 

169 Juflices of Peace. Cap. 3 1 . 

admittance, and /Two/z omms (as hath been faid of the jiidices of oier 
^ and terminer) are directed. 

6 R. 2. cap. 5. j2. ^ Juftices of gaole dehvery iliall keep their feffions in the 

prlncipall and chief towns of the counties where the flure courts of 

the fame counties be holden. 
J & 3 Ph. and 13. Bv the ftatute of 2 & 3 Ph. and Mar. it is provided, that all 

Mar. cap. 18. • cr r 1 * i j v ^ . ' 

♦ H fi fi commimons of the * peace or gaole delivery to any city or towne 

.cap. . corporate not being a country of it felfe, fliall ftand and remaine, 

the granting of any like commiilion of the peace or gaol delivery 

in any fliire, lathe, rape, riding, or wapentake, being of a latter 

date, to the contrary notwithftanding. 

See in the chapter of oier and terminer conchfione 9. more con- 
cerning juilices of gaole delivery. Vide 44 AiT. pi. 21. 

See authorities lately granted to juftices of gaoie delivery in the 
chapter next enfuingpf juftices of peace, 

[170] CAP. xxxr. 

Juftices of Peace. 

Si R Anthony Filz-Herbert, one of the juftices of the co\irt 
of common pleas, and divers others have written of the ju- 
rifdi6fion and power of juftices of the peace, both in the 
court of the feffions of peace, as without; to whofe labours I re- 
fer the reader. 

And it is fuch a forme of fubordinate government for the tran- 
quillity and quiet of the realm, as no part of the Chrlftlan world 
hath the like, if the fame be duly executed. 
j^efore the con- To the former treatifes are neceflary to be added certain a<5ls or 
ti^\x?% Deface parliament made in the 21 year of our late foveraigne lord king 
I'h ^7' cap 12 J^"^^^» ^"^ certain caveats, additions, and obfcrvationS ticcefTiry to 
"be known. De pace violata ; 'vide hit' legCs Alvredi^ cap, 36. Kd- 
luardi cap, 6. 

But as a preface to all that fhall be faid of the office 2r\f\ duty of 
juftices of peace, we will begin with that which is ena«5lcd by the. fti:- 
tuteof 4 H. 7. as a neceflary caveat to all juftices of peace, viz. Tfee 
king confidereth that a gi'eat part of the wealth and prorj)pritv of 
the land ftandeth in that, that his fubje<^s may live in furety under 
his peace in their bodies and goods : and that th hufbandry of 
this land may increafe and be uphol'den, w^hich muit be had by 
due execution of lawes and ordinances, chargeth and commandeth 
the juftices of the peace to endeavour them to do and execute the 
t^nor of their comnuflion, the faid lawes and ordinances ordained 
for fubduing of the premifes, as they will ftand in love and favoui' 
of bis grace, and in avoiding the pains that be ordained, if they 
do the contrary. "And over that he chargeth and commandetli, 
that every man, what degree or condition that he be of^ that let 
therri in word or deed to execute their faid authority in any manner 
-or forme abovefaidithat ihey Ihew it to his grace ; and if they do it 


Cap. 3I* Juftices of Peace. 170 

not, and it come to 1ms knowledge by otlier then bv them, thc^ 

Ihall not be in his favour, but taken as n)cn out of credence, and 

be put out of comnjilFion for cvtr. And over this he chargeth 

and comniandcth all manner oi men, as well the poore as the ricby 

which be to him all one in due niinil}n<tii)n of jullice, that is 

hurt or grie^eil in any thing, that the faid jufticc of peace may 

beare, determine, or execute in any wife, that he fo grievtd make 

his compFaint to the juftice of the peace that next awclleth unto 

him, or to any of his fellowes, and defire a remedy: and if then h« 

have no remedy, if it be nigh fuch time as his juftices of aflifes 

come into that Ihire, that then he fo grieved (liew his complaint 

to the fame juftices; and if he then have no remedy, or if the 

complaint be made long afore the comming of the juftices of af- 

iife, then he fo grieved come to the kings highnefle or to his chan- 

celour for the liir.e being, and ftiew his griefe : and his faid highnefle 

then flull fend for the faid juftice to know the caufe why his faid 

fubje«5ls be not eafed, and his lavves executed. Whereupon if he 

Hnde any of them in default of executing of his lawes in thcfc 

premifey, according to his high commandment, he ftmll doe to [ 171 1 

him fo offending to be put out of the commiflion, and furthermore 

to be punilhed according to his demerits. And over that his faid 

Iiighnefle ftiall not let for any favour, affeftion, coft, charge, nor 

none other caufe, but that he fliall fee his lawes to have plain and 

tnie execution, and his fubjecls to live in furety of their lands, 

bodies and goods according to his faid laws, and the faid mifchiefs 

to be avoided, that his fubje«5ts may increafe in wealth and pro- 

fperity to the pleafure of God. 

AikI where the words of the faid aft be : and further to be pu- 
niftied according to his demerits. Thefe words are fo to be under- 
ftood, that he fliall be puniftied in an ordinary cour e of juftice by 
way of indictment upon this aft, for his conteni{)t, <S:c. and not 
by any abfolute power, as hath been often obferved. 

it is to be obferved, that when juftice Fitzherbert and fome 
others did write of the authority of juftices of peace, the cominif- 
fion ot the peace ftood overburdened and incumbered with divers 
Aatutes, fome whereof were before, and fome fince repealed: and Coraoare the 
with fome, whereas there was none fuch, and ftuffed with many old with the new 
vain and unneceftary repetitions, and inany other corruptions crept commiflion, and 
into it by miftaking of clerks, &c. For amendment and correc- the reformj- 
tion whereof (being a matter of fo great importance) Sir Chrifto- t'ow, additions^ 
))her Wray chief juftice of England,^ Mich. 32 & 35 Eliz. alFem- "lUp^J!*^' 1 
bled all the judges of England, and upon pcrnfall had of the Mich. 32 i 3* 
former commiflion of the peace, and upon due confideration had l"i. tbc comn.iu 
thereupon, and often conference^ between themfelves, they rcfolvcd ^^oaof the pear* 
upon a reformation of the former, with divers additions and altc- \^°'^f^^\*^ 
rations both in matter and method, as ir now ftamicth at this day : XngUnd!' *^ 
and there needpth yet another reformation of that alfo; for fince u H.4. ca. 3. 
that time divers ftatutes then in force have been repealed, and di- 8 H. 6. ca. 4. 
vers have expired. As for example, all the ftatutes of liveries in- * E.4ca. a,«:c. 
quirable by juftices of peace are repealed by the ftatutc of 3 Car. ^^£i*^^"*'" 
cap. 4. faving the ftatute of i R. 2. cap. 7. inquirable before juftices 
of aflife, vide fupra^ pa. i :;g. Alfo the ftatute of 27 H. 8. cap. 22. 
that the owner of any fcite or precinft, &:c. of anv diflblvcd reli- 
gious hcrfe under the value of 200 1. fer annum^ /or the keeping 

O 7 01 

lyi Juftices of Peace. Cap. 31 ^ 

r of honeft and conthniall houfliold thereupon, and inquirable by 

juftices of peace is repealed by 21 ]clc. rrgis cap. 28- And the 

13 R. 2. ca. 8. ftatiite of 13 R. 2. cap. 8. and 4 H. 4. cap. 23. for taking by any 

4 H. 4. ca. 25. inholders jn gain above a half penny in a biifhell of oats over the 

common price in the market, and inquirable by juftices of peace 

be alfo repealed by the faid ac*^ of 21 Jac. Likewife the ftatuteof 

39 El, ca. 2. 39 El^cap. 2. concerning hiifbandry and tillage, which being but 

4 H. 7. ca. 19. a probationer for a time, was difcontlnued 2t Jac. And the fta- 
" ^-i ^8 "^a ^"'^ ^^^^^ concerning houfes of hiifbandry and tillage in 4 H. 7. 7 H. 8. 
5^. 6.*c*ap! 5. ' ^7 ^^' ^- 5 ^- ^' ^"^ 5 Eiiz. are all repealed by ai Jac. and 

5 E!. ca. 2, divers others, &c. 

It is a good rule therefore for all judges and juftices whatfoever, 
that have jurifdiftion by any ftatute v.'hich at the firft was tempo- 
rary, or for a time, to conlider well before they give judgement^ 
whether that ftatute have been continued or made perpetuall : and 
if it Vv'ere at the firft made perpetuall, whether it be not repealed or 
altered by any latter ftatute. Erudimbii qui jud'icatis tcrram. See in 
the fecond part of the Inftitutes the expofttion upon the ftatute of 
22 H. 8. ca. 5. 
42 v.. 3. cap. 9. Juftices of peace may enquire if eftreats be not ftievved by (he- 
w. I. cap. 19. rifs, &c. to the party indebted and totted. A neceflarv law for the 
7 H. 4. ca. 3. eafe of the rubie6t. 

Concerning the nomination of juftices of peace, fee the ftatutea 
Rof.par.2SE.3. of 12 R, 2. Cap. 2. 2 H. 5. ftat. 2. Cap. I. 18 H. 6. ca. II. where- 
^1"' y- unto you may add, that before all thefe another aft not in print 

^oE •; nu 6 ^^^^ made in 28 E. 3. as well for their nomination, as how and 
50 . 3. nu. 4. ^^ ^hon^ tl^ey fj^jjii 5e difcharged. Certain it is that he, thit is 
named in the commiffion of peace unvder the great feal to be a juf- 
tice of peace is a lawfuU juftice of peace. 
[ 172 ] At the parliament holden anm 21 Jac. reg'is^ there was an excel- lent law made, entituled, An acl for the eafe of the fubjefl con- 
cerning informations upon penall ftatutes, which aft for that it prin- 
cipally concerneth juftices of peace, is here inferted in hac verba as 

This wastlie Whereas the ofFences againft divers and fundry pcenall law.s 
ancient and pru- ^^^ ftatutes of the rcalmc may better, and with more eafe and 
pa^il.ment ("as ^^^^ charge to the fubjeft, be commenced, fucd, informed 
(before it hath againft, profccuted and tried in the counties where fuch of- 
appeaied) that fences fiiall be committed. And whereas the poor commons 
idm"miihcd'and ^^ ^^^^ realm are grievoufly charged, troubled, vexed, mo- 
tried in their It^Sitdi^ and difturbcd by divers ^ troublefome perfons, com- 
proper counties, ^nonly called relators, informers, and promoters, by profecut-. 
drawn up to the ^"g ^^^" enforcing tHem to appear m his maj cities courts at 
courts at Weft- Weflminfter, and to anfwer oft-ences luppofed by them to be 
ininrter for the committed ap-ainft the faid pcenall laws and ffatutes, or elfe to 

caules in this 1 • 1 1 r 1 r 

preamble ex- compound With them for the lame. 

pre fled. 

^ Of this kind of nnen, it was formerly truly faid, Hoc genus bominumfemper'vttahUur, et tamen fem- 
f€r in cl'v'itateretinebilur. But this law confifting of izszn parts remedied all the former inconvenien- 
ces, and the abufes of thefc troublefome perfons. 

1. For 

t-'ap. 3 1 . Juftices of Peace. 172 

I. For remedy whereof be it rn:i<^tccl by the authority of 
this prcLnt parliament, that all oft'cnccs hereafter to be com- . ,1?*/* ^"^ 

•I •» 11/1 .- !•« • juifjcct or 

mittcd ag.unlt any pcnall Itatute, for which any common in- ,. ai 

former or promoter may lawfully ground any popular adtion, i- N 

bill, plaint, fuit or information *> ocforc juftices of aflifc, juftices ^' ofj^i ur'^ 

of nifi prius, or gaol-dclivery, juftices of oier and terminer, ^. Poce. 

or juftices of the peace in tlieir general), or quarter feflions, But ihcgrratcft 

(hail after the end of this prefent f^jftion of parliament be com- ex^curi w Jhit 

menced, fued, profecuted, tried, recovered and determined by aa viUi belong 

way of action, plaint, bill, information or indidlment before tf> th«juft.ceiof 

juftices of aflife, juftices of nifi prius, juftices of oier and ter- J!""V*''""*' 

• 1 ' fL- r 111 "^ 1 ^ 1 • /!• f there be many 

miner, and jultices ot gaole-dclivery, or before the juftices ot learned io the 

peace of every county, city, borough, or town corporate, and [***• 

liberty, ^ haviui; power to enquire of, hcarc and determine the •' ?u*!rt"^^ 

lame wit'.im this realm or England or donunion ot Wales, peace no new 

wherein fuch oftlnccs fliall be committed, in any of the courts, P»«" 'ocafM 

places of judicature, or liberties aforelhid refpedtivcly, only at rarga^veThcm 

the choice of the parties, which Ihali or will commence I'uit, none, and f© of 

or profecute for the fame, ** and not elfewhere, favc only in the ti^c/cft of the 

fald counties, or places ufuall for thofe counties or any of ^^l^^^ "* 

them d So as they 

cannot b: com- 
menced, Sic. in any of the kings courts ac Weftnainfter. 

1, * And that like procefTe upon every popular a(flion, bill, ^ By this branch 

plaint, information or fuit, to' be commenced, or fued, or pro- fawfy'dothTe' 

fecuted after the end of this prefent feliion of parliament by upon every po- 

force of, or according to the purport of this act, be had and P"'*'' a<^^ion, a 

awarded to ail intents and purpofcs as in an adtion of tiefpafTe fo^xeclt^wT o*f 

vi et armis at the common law. jufticc. 

3. ^ And that all and all manner of informations, ad^ions, ^ Thiseiaufewt* 
bils, plaints, * and fuits vvhatfoever hereafter to be commenced, ^^.^^\ mi>ft '^ 
fued, profecuted, or awarded either by the atturny generall of fiiouid be bound 
his majefty, his heirs, or fucceftbrs for the time being, or by exprefly by tbi» 
any ofHcer or officers whatfoever for the time being, or by f^Jn\^t?on iVthc 
any common informer, or other perfon whatfoever in any of courts at Wcft- 
his majcftics courts at Weftminfter, for or concerning any of minrterihouidbc 
the offences, penalties, or forfeitures afore&id, Ihall be void, ^ng^'atfurny^ 
and of none effect, any law, cuftonie, or ufagc to the contrary generaH, by any 
thereof notwithftiuidin'^-. common infor- 

4. And be it further cnadled by the authority aforefaid, that peJf'n'^'vhit^, 
in all informations to be exhibited and 'n\ ail bils, counts, ever. Nets the 
plaint*;, and declarations in any action or fuit to be commenced g-'^crjliry cf 
againft any perfon or perfons, either by, or on the behalf of ^ "^ "^'"^^' 
the 8 king or any other for or concerning any offence com- cd. 
mitted, or to be committed a^inft any penall ftatute, the of- ' - — -- -^^'n 
fence ^ fhall belaid and alleadged to have been committed in J^P'°P«'""o- 

bot in affirmance of the true invitation of the common law, for vifi«i viemhra faffs fr.^ 
fjtrtf and for theic infjrmers they were beft tiufted, where ihey were Icaft known. Thu ;v a s y 
bcncficiall daufe for every defendant to take h^ld of. ♦f 17 «s1 

O 4 the "^ ' •- 


< uch before hi 

'^JZ « Juftices of Peace. Cap. 3^ 

the laid county where Cuch offence in truth was committed 
and not elfewhere.^ And if the defendant to any fuch infor-. 
mation, adion or fuit, pleadeth that he oweth nothing, or that 
he is not guilty, and the plaintif or infojmer in (uch informa- 
tion, a£i:!on or fuit upon evidence to the jury that fhall try the. 
iflue, fhall not both prove the offence laid in the faid inlbrma- 
tion, adion or fuit, and that the fame offence was committed 
in that county, then the defendant and defendants fliali be found 
not guilty. 

5. And be it further ena6)Led by the authority aforefaid, that 
^ That Is in any no officer or miniiter in any ^ court of record fliall receive, 
of the courts be- £|e ^^ ^^^^^ ^f ^-gcord any information, bill, or plaint, count, 

iorejuftices of J i • 1 i -^ , r-i ^^ n 

affife, and other ^"^ cleciaration, grounded upon the laid penall Itatutes or any 

3ufiices named of them, which beforc by this 7x3. are appointed tp be heard and 

of thh^'ft^^ "^ cletermined in their proper counties, untill the, or re- 

^ The informer ^'^^^^ ^ath firif taken a ^ corporall oath before Ibme of the 

akean judges of that court, that the offence or offences laid in fuch 
information, action, fuit, or plaint, was or were not committed 

he received. ^^ ^^J Other county, then where by the laid inrormation, bili^ 

A beneficiail plaint, couut or declaration the fame is, or are fuppofed to have 

r'.ufe aifo for ^^^^ Committed, and he beleeveth in his confcience the offence 

The detendar.f, . /, . . . . . ■ . 

J Note, within ^^^^ Committed ^ withm a year before tne mtormation or luit 
-1 \ear beiore the within the fame county, where the faid information or fuit 
mtormation. ^^^ Commenced, the fame oath to he there entred of record. 
TlXV^^'^lt ^\ ^^^ ^^ ^^ ^"^^^ enadcd by the authority aforefaid, that if 
any information, fuit, or adlion (hall be brought, or exhibited 
againft any perfon or perfons for any offence committed, or to 
be committed againft the form of any penali law either by, or 
'^u'VJlSr ^^ ^" ^^^ behalf of the king, or by any other, or on the behalf 
i. For that in* ^^ ^^^ ^^"g ^^i<^ ^^J Other, it fhall be lawfull for fuch defen- 
The courts afore- dants to plead the gcnerall * iffue, that they are not guilty, or 
3aid,fpeciaiJybe- ^^^^t they owc nothinor, and to give fuch fpeciall matter in evi- 
peace, there are "ence to the jury that fhall try the fame, W^hich matter being; 
i.ot fuch ikiifuil pleaded had been a good and fufficient matter in law, to have 
!n?clc"k?fcr ^^^*^^^^S^^ ^^^ ^^i^ defendant or defendants againft the faid in- 
good 'ple.dir!g\s formation, fuit, or action ; and the faid matter fhall be then as 
•were In the available to him or them to all intents and purpofes as if he, or 
they had fufiiciently pleaded, fet forth, or alleadged the fame 
matter in bar, or difcharge of fuch information, fuit, or ac- 

the irtakers of tion. 

^!j''^''j'''^I7''^^'^ Provided alwayes that this ad or any claufe contained 

oatitmigh^t plead ^^^^cin fhall not extend to any information, fuit, or adfion, 

the general! in'ue. grounded upon any law or ftatute made againft popifh recu- 

■j.. Kirtheeafe fants, or for, or concerniH*'^ popifh recufancy, or asainfl thofe 

and benefit of the ^i ^ /u n r , ^/ ^, it- ^ ]• • r • 

lubjt'ft, great "^^^ *^^^^ ^'^^ frequent the church and neare divine lervice, nor 

cnaiges growing 

Vy fpeciaJl pleading. 3. For avoiding of demurrers upon ftri(ft, and nice points of pleading. 

4. For avoiding of writs of error, which often are brought in lel'ped of fpeciali pleading. 


kings courts at 
"Wclhr.infter , 
and therefore 

Cap. 31. Jufticcs of Peace. 1 74 

Co any information, fuit, or a«fbion for maintenance, champctry, 
or buying of titles, nor to any fuit, or information grounded 
upon the ftatutc made in the lirll year of the reign of our fo- 
vcraign lord the king, of a fubfidy granted to the king, of tun- 
1 'N poundage, wool, &c. nor for or concerning the con- 
•. ;iing or defrauding the king, hi« heirs or (uGceHbrs of any 
cultome, tiuinagc, poundage, fubfidy, impoft, or prifage, or for 
tranfporting of gold, filver, ordinance, powder, (hot, munition 
of all forts, wool, woolfcls, or leather, but that fuch offence 
may be laid or alleadgcd to be in ♦ any county, at the pleafure • Tiiis provii* 
of any informer, any thing in this a<St to the contrary notwith- "'crreth only ro 

mation, Sec. 
grounded upon any of the fiatutfs in this provifo mentioned can be commenced, &.C. in any of the 
kings courts nt Wcftminilcr but before the jurtices of allile, julUccs of nili priuf, or gaol delivery, 
juiticcs of oicf and termiiicr, or juftices of peace. 

There was another mifchief which lay heavy upon the fubjeft, 
whereof ad van taoc might be taken by any informer, which was 
not provided for by this a<5t, viz. divers former ftatutes, which in 
refpeet of the alteration of times lay as fnares upon the people, and 
at this day could not be performed. For example: that a yard of '*^^-'' ^^P* ^» 
broad-cloth of the fined making fcarlet grayned, or other cloth 
grayned, what colour foever it be, (liould not be fold above the 
value of 16 s. a broad yard, &:c. Which act and many other a£ts 
of parliament of like nature, and other obfolete laws to a very 
<;ieat number were at this parliament utterly repealed, and made *'J* 18. 
void. We advife therefore the juftice of peace (for to him we 
principally direct our fpeech, though it concern the reft of the 
juftices before named) ferioufly to read over that a£l, where all 
rliofe obfolete laws are particularly mentioned and repealed, and 
therefore no Information, &c. can be commenced, &:c. upon any 
of them. 

At ihefame parliament alfo anno 21 Jac. re^is, an other good and 
profitable law was made concerning juilices of peace and others, the 
tt nor whereof ifi as folio weth. 

The Title. Jn Jjf to enlarge and make perpetuall the A^ ** J-'*^- ^^ " 
made for eafe in pleading againjl trouble form and contentious 
fuits profecuted againjl Jujliccs of the Peace^-Maiors.^ Con- 
jlahUi^ and certain others his Majejlies Officers for the 
laivfull execution of their office^, made in the 7. year of his 
Majejlies mojl happy reign. 

Whereas an zdi intituled, an a<Sl for eafe in pleading againft 
ttoublefome and contentious fuits profecuted againft juftices of 
the peace, maiors, conftables, and certain others his majefties C '75 3 

Officers for the lawfull execution of their office made in the fe- il^^''^"^**^" 

V'-nth year of his majefties moft happy reign of England, was tended to 

\^xit to continue but for fvvcn y^ars, and from thence to the 1 Juftice* of 

end P*-*^** 


2 Maiors or 
bailifs of cities or 
towns corporate. 

3 Headborows. 

4 Portreves. 

5 Conftables. 

6 Tithingmen. 

7 CoUedlors of 
fubfidies and fif- 
teenths, and not 
to any officer not 
named in that adl 

This a£l of 
ai Jacobi ex- 
tendeth to 

1. Churchwar- 

2. All perfons 
called fvvorn- 
men executing 
the office of 

3. All overfeers 
of the poor. 

4. All others in 
their aid and af- 
fiftance, and not 
to any other of- 
ficer or penbn 
not named in 
this adt. 

This branch ex- 
tendeth to 

1 Actions upon 
the cafe. 

2 Trefpaflc. 

3 Battery. 

4 Falfe impri- 

TJie zOunns 
.aforefaid fhall 
be laid in the 
propej county. 

To plead the ge- 
fjcrall iffue. 


Juftlces of Peace. Cap. 31* 

end of the next parliament, after the faid. feven years which by 
experience hath fince been found to be a good and profitable 
Jaw. Be it therefore enadled by the kings moil excellent ma- 
jefty, the lords fpirituall and temporall, and the commons in 
this prefent parliament afTembled, and by the authority of the 
fame, that the faid act fhall from and after the end of this 
prefent fefTion of parliament be perpetuall, and have con- 
tinuance for ever. 

Maie perpetuall. 

And be it further ena6ted by the authority aforefaid, that all 
churchwardens, and all perfons called fworn-men executing 
the office of the churchwardens, and all overfeers of the poor, 
and all others, which in their aid or affiftance, or by their 
commandement fhall doe any thing touching or concerning his 
or their office, or offices, (hall hereafter be enabled to receive 
and have fuch benefit and help by vertue of the faid a6l, to all 
intents, conftruclions, and purpofes, as if they had been fpe- 
cially named therein. 

And whereas notwithftanding the faid flatute, the plaintif is 
at liberty to lay his a<5tion which he fhall bring againft any 
juftice of peace, or other officer in any forain county, at his 
choice, which hath proved very inconvenient unto fundry of 
the officers, and perfons aforefaid, that have been impleaded by 
fome contentious and troublefome perfons in countries far re- 
mote from their places of habitations. 

Be it therefore further enacted by the authority aforefaid, 
that if any action, bill, plaint, or fuit upon the cafe, trefpafle, 
battery, or falfe imprifonment (hall be brought after the end 
of this prefent feffion of parliament againft any juftice of peace, 
maior, or baylif of city, or town corporate, headborow, port- 
reve, conftable, tything-man, colle6tor of fubfidy or fifteens, 
cTiurch wardens, and perfons called fworn-men executing the 
office of churchwarden, or overfeer of the poor, and their de- 
puties, or any of them, or any other which in their aid, or af- 
fiftance, or by their commandment, fhall do any thing touch- 
ing or concerning his or their office or offices, for or concern- 
ing any matter, caufe or thing by them or any of them done 
by vertue or reafon of their or any of their office or offices, 
t}\at the faid action, bil, plaint, or fuit fhall be laid within the 
county where the trefpafle or fact fhall be done and commit- 
ted, and not elfewhere And that it fhall be lawfull to and 
for all and every perfon, and perfons aforefaid, to plead there- 
unto the generall ifTue, that he or they are not guilty, and to 
give fuch fpeciall matter in evidence to the jury which fhall 
try the fame, as in or by the faid former aiSt is limited or de- 
clared. And that if upon the tryal of any fuch action, bill, 
plaint, or fuit, the plaintif or plaintifs therein fhall not prove to 
the jury v/hich fhall try the fame, that the trefpafle, battery, 


Cap. 3 1 . Juftlccs of Peace. 1 76 

imprifonmcnt, or other fafl, orcaufe of his, her, or their fuch The pUlntif op- 
a<5tion, bill, plaint, or luit was, or were had, made, commit- ^"uft^^rottSiie 
ted, or done within the county where fuch action, bill, pbint, thccaufeor ac 
or fuit fhall be laid, that then in every fuch cafe, the jury *'on '•'» «*<>'»« 
which lliall try the fame, (hall find the defendant and dcfcn- pJo^^J^ouX 
dants in every fuch a<Stion, bill, plaint, or fuit, not guilty, 
without having any regard or rcfpc6l to any evidence given by 
the plaintif or plaintifs therein touching the trcfpafle, battery, 
imprifonnnent, or other caufe, for which the fame action, bill, 
plaint, or fuit is, or (hall be brought : and if the verdict (hall 
pade with the defendant or defendants in any fuch a6^ion, bill, 
plaint, or fuit, or the plaintif or plaintifs therein become non- 
fuit, or fufFer any di(continuance thereof, that in every fuch 
cafe the defendant or defendants fliall have fuch double cofts, 
and all other advantages and remedies, as in and by the faid 
former ac^ is limited, directed, or provided. 

See alfo another aft the fame parliament, anno 21 Jacobi regis^ a1Jac.ea.t5. 

An Aul to triable "Judges and yuflices of the peace to give 
rejiitiition ofpojfejjion in certain cafes. 

Be it ena6led by the authority of this prefent parliament, ,. judges or iuf- 
that fuch judges, juftices, or juftice of the peace, as by reafon ticesoftheking* 
of any a6t or a6ls of parliament now in force are authorlfed, Pencil. 4 H. 7. 
and inabled upon inquiry to give reftitution of polibflion unto \ juft'iceitfthc 
tenants of any eftate of freehold, of their lands, or tenements peace. 8 h. 6., 
which (hall be cntred upon with force, or from them with- ''}?■ 9- I'f) 9- 
holden by force, fhall by reafon of this prefent a£t have the KeU^ iV^^^* 
like and the fame authority and ability from henceforth (upon NotjufticMof 
indictment of fuch forcible entries, or forcible withholdings °'?' ^"<* ^^f- 
before them duly found) to give like reftitution of po(re(rion X"juflk/"ia 
unto tenants for tearm of years, tenants by copy of court-rol, i^ad ot dijii/ivit 
guardians by knights fervice, tenants by elegit, ftarute mer- which was for- 
chant and (taple of lands, or tenements by them fo holden, diamcm *no J"* 
which (hall be entred upon by force, or holden from them ftiaii be Li, 
by force. *J"'f» txpuHt^ tt 

See 8 H. 6. cap. 9. and 31 El. cap. 11. *m9vit, or dai. 

exttndcth to 
I. Tenant fjr years. 2. Tenant by copy, &c. 3. Gnardent mt cb'valry. 4. Tenant by ckait 
5. By ftatute merchant. 6. By iUtute ftaplc, which no furmer a£l extended ante. 

//; termino Pafch. 6 E. i. Coram rege prima fuit injiitutio jufiiciari" 
cruvi pro pace confervanda. 

Rot. pari. 18 E. i. fo. 3. nu. 41. Homines de Cheferjhire qui one- 
rat: funt de fervlcntibus pacts fujientandis, pttunt exonerari dc oncrihut 
j'atut' If in/on, i5c. Rex non habet ccnfiVmm mutandi confutudincs^ nee 
fialutajua revocandi. 

The lord chancelor and others of the privy counccll doc re- p<,rf dm^ ^ 
.Hiove divers juftices of peace for that they we.c rctayning to the 8 R. 2. m. 5.* 
irchbilhop, &:c. 



Rot. par. sR.a. 
jiu. 39. 


[ ^7:1 

13E.4. 9. 
ao E. 4. 6. b. 
He may enter 
into the houfe 
the door being 
open. See lib. 5. 
f. 91, 92. Se- 
jnains cafe. 

7 E. 3. 16. 

ti9 £• 3- 9- 

2, E. 4. 8.9E.4. 


Mag. Cart. c. 29. 
* Read the ftat. 

J4H.8!f. 16 a. 

3 H. 7- ca. 3. 
1 & 2 Ph. and M. 
ca. 13. & 2 & 3 
Ph. and Mar. 
«. 10, ' 

Juftlces of Peace. Cap. 31. 

See a profitable an4 good law for juflices of peace in the par- 
liament roll, and not in print. 

But let us return to the duty of a judice of peace, for melius ejl 
recurrere quant male currere. 

One or more juftice or juftices of peace cannot make a warrant 
upon a bare furmife to break any mans houfe to fearch for a fe- 
lon, or for floln goods, for they being created by ad of parlia- 
ment have no fuch authority granted unto them by any aft of 
parliament: and it fhouid be full of inconvenience, that it fhould 
be in the power of any juftice of peace being a judge of record 
upon a bare fuggeftion to break the houfe of any perfon of what 
ftate, quality, or degree foever, and at' what time foever, either 
in the day or night upon fuch furmifes. But if the party fuf- 
peftcd be indided, then the (lierif by force of the kings writ 
may demand the party indifted to be delivered ; and that not 
done, he may break open the houfe, &:c. and apprehend the felon, 
for that the kings writ is TS-Non omittas propter aliquam liber tat em : 
but if the kings proceffe be in debt, trefpaffe, &:c. at the fuit of a 
party, there the fherif by force of the kings writ cannot break 
open the houfe of the fubjeft. And fo is the book in 13 E. 4. 
io. 9. which faith; it was holden, that for felony or fufpition of 
felony a man may break the houfe to take the felon, and two rea- 
fons are yeelded in the book. i. Becaufe it is for the common 
weale to take them. 2. Becaufe the king hath an intereft in the 
felony, and in fuch cafe the writ is a Non omittas propter aliqtiam 
liber tatem : but otherwife it is for debt, or trefpafle, the llierif or 
any other cannot break the houfe to take him. And yet it is to be 
underftood, that if one be indided of felony, the flierif may by 
proceffe thereupon after denyall made, &c. break the houfe for 
his apprehenfion, or upon hue and cry of one that is flain or 
wounded, fo as he is in danger of death, or robbed, the kings of- 
ficer that purfueth may (if denyall be made) break a houfe to ap- 
prehend the delinquent : but for juftlces of peace to make war- 
rants upon furmifes, for breaking the houfes of any fubjeds to 
fearch for felons, or ftoln goods, is againft Magna Carta, Kec 
fuper eum ibimus^ nee fiiper cum 7nitteriius^ nrji per legale pidicmn parmm 
fuorum^ vel per legem terne : and againft the * ftatute of 42 E. 3. 
cap. 3. &c. And we hold the refolution of the court, viz. of 
Brudnell, Pollard, Broke, and Fitzherbert in 1 4 H. 8. to be law, 
that a juftice of peace could not make a warrant to take a man for 
felony, unleUe he be indifted thereof, and that muft be done in 
open ffeffions of the peace. For the juftice himfelf cannot arreft 
one for felony, unleiTe he himfelf fufpeft him, (as any other may) 
and by the fame reafon he cannot make a warrant to another. 
And all this appeareth in that book, and is agreeable with our for- 
mer "books, in 42 AiT. p. 5. & 12. &: 24 E. 3. tit. Com. Br. 3. 
and with reafon, for this warrant to take a felon fhould be in na« 
tuj-e of a capias for felony, which cannot be granted before indift- 
ment, fior after indiftment, but in open court. And this is the 
reafon wherefore juftices of peace before indlAment could not 
have let any charged with felony or fufpitioa to bail, or mainprife, 
becaufe juftices pf peace are judges of record, and ought to proceed 
upon record, and not upon furmifes. Sed di/linguetida funt iem- 
porfl,^ et concordabis Irgfs : for ft nee the ftatuies of 1 & 2 Ph. & 


Cap. 3^« Juft Ices of Peace. 177 

Mar. cap. 13. and 2 & 3 Ph.& Mar. cap. 10. (the words whereof 
be, That the laid jufticcs, or one of tlicm being of the quorum, 
when any fuch prifoncr is biought before them for any man- 
flaughter, or felony, (liall take examination, ice.) if any perfon 
l)e charjred with any manner of fclonv, and information be given 
to a jullice of peace of the felony or uifpition of felony, and fear- 
eth that the kings pence may be broken in apprehending of him, 
the faid jufticc may make a warrant to tlie conftable of the town 
to fee the kings peace kept in the apprehending and bringing of 
the parly charged with or fufpeifted of the felony before him, and 
the pariy that givcth the information of his knowledge or fufpition » 2 H. 7. 3. .v 
to be prefent and arreft the delinquent; and in this manner it is 15. 4H.7. 2,3. 
implied and intended by the faid ilatutes for the prifoner to be 5 "• 7- ■*. 10 H* 
brought btfore them: and this (as we take it) agrecth with the 7«7- »oH, 7. 
common ufe and obfervance ever fince thofe ftatutts. And this g £.4. 3.^.*°* 
agreeth alfo with the faid book in 14 H. 8. that a juftice of peace 10 E. 4.. 17. 
may n^.ake his warrant for the falvation of the peace, meaning 9 E- 4- *6- 
to aflift the party that knoweth or hath fufpition of tlie felony. »»E-4-4- 13^- 
But in this cafe neither the conftable, nor any other can break ^ £ "l , ^^ h' 
open any houfe for the apprehenfion of the party fufpc<5fed or g. -j. ,. ojcr 
charged with the felony, for it is in law the arrell of the party that 7 £112.236. b. 
hath the* knowledge or fufpition, who cannot break open any [ 178 ] 
houfe : but if the * door of the houfe be open, he may enter into 
the fame, and arreft the party. Thus much upon reading of fome « 20 E. 4. to. 6. 
that have written of the office of juftlces of peace, we have thought 17 e. 4. 5 a. 
good to adde. For though commonly the houffs or cottar^es of Larab. fo» 1&8, 
poore and bafe people be by fuch warrants fearched. Sec. yet if it '^9' 
be lawfull, the houfes of any fubje^V, be he never fo great, may *BiUe and main- 
be fearched, &:c. by fuch warrant upon bare furmifes. C'^'V 

• Concerning bailement and mainpr'fe, and what offmders were part'of theTn- 
baileable by the conmion law, you may in the fecond part iiitutps. w. i. 
of the Inflitutes, W. i. ca. 15. Now fomething is neceflTary to be ca. 15. ro).47z, 
added in refpect of fome variety of opinions touching the true di- *^- GUnv. 
verfity and fignification of bailment, mainprize, jicie'ijujf, furety, ^'■^■"* '■ 
pledges, plerin^ plcvina, r<y)/<r<i;/w,t>orough, and the /ike. And firft of 27 £. 1. (br. 5o 
baile. finibai cap. 3. 

Some derive this word from the French word hailkr^ ^^^cA ^^- Of hail end haU- 

/iere^ to deliver, becaufe the prifoner is delivered out of prifon ; mtm, 
but it cannot be fo derived : for the entry is, haditur in or fer baU 
I'lum^ and then the fenfe (or non-fenfe) fhould be, he is delivered 
into delivery. But this word baUium is truly 'fetched from the 
French nown bail., that fignifieth a gardian, keeper, or gaoler: 

* and herewith agreeth Bradon, w!io faith, 'N-n trit ulfnius per bal- » Braaon UN. -\. 

Hum dim'tttendus. And againe. Per ballium d'tmittatur vfqne a.-hctt' foL 1:3. AnJ 

turn jujlitiariorum., al'wquin remanent in prifon a : and in the iiur^cpage, l^^'^i^'^'grccth 

tradas in ballium iz probis liominibus. We reade not in Brittoa of J;/,,'^' 

this word bailc, but of fome other words hereafter following. Que lib. i. - 

plevijfent corps dc koine ceux ne font my proprcment pledges mesfont mani- Mirror cj. 2. 

per not s fur ceo que tlz, fuppofent que ceux plev: fable font livers a eux ptr ^ »4* 
haile corps pur corps. ^ 

♦ There bailment is called a living prifon. * f "J" *** *^T' 
*» A man arrelled or imprifoned (and bailable) for felony flial be j^ e. 3. ^.^'b. 

bailed before it appeareth whether he be guilty or no. R^it if a luainf^riie 1. 
man be convifted by verdift or confcffion, &c.' be is not bailable, 3 F- 3- «'»''• V4. 

bc«..fe ^ '"'=''-■.-- 


Juiliices of Peace. Cap. 31 

c 3312.3. main- 
pi iie 12. 
^* This agreeth 
with the former 


C36 E. 3- >b.i3 
ac' 4 H. 6. 5J. 
22 H. 6. 59. 
32 H.6. to. 4. 
ac' 3911.6.27. 
21 H. 7. 33- 
* Vid. infra f. 

^ 36 E. 3. ubi 
fup. Br. Main- 
prife 89. 

21 H. 7. 20. b. 
per Fineux. 
F. N.B. 251. d. 

See Lamb. 

fo. 352, 35> 
F. N.B. 251. f. 



• Vid. fupra f. 


25 E. 3. 39. 
3 E ;?. tit. cor. 
40 Afl". 42. 
3 E. I. cap. 15. 
27 E. 1. flat, de 
fiaibus, cap. 3. 

HU. 18 H. 8. 

Bendl. This bail 
is cletermiiicd by 
the judgment, 
if the principajl 
be then there 

ai H. 7. 40. b. 

becaiife it appeareth that he is guilty. So, if upon examination a 
man confetTeth a felony, if the mittimus be for felony confefled, 
he cannot be bailed. 

*= By Shard there is a diverfity between bail and mainprife; for 
the entry of the bail is, that fuch an one traditur in ballium^ in 
which cafe they be his '' gardians : and if they fuffer him to efcape, 
they fhall anfwer for it. 

* And where it is faid there, Etper quo/dam ihferrapende^ it was 
fpoken but in * terrorem^ and thereupon a quere is made of it. And 
that it was no felony in ancient time, hear what the Mirror faith. 
It is abufion to think that fuch pain fliould be awarded to the bail, 
as to the principals which made default, where they were but amer- 
ciable in that cafe. 

^ And where any man is delivered In hallium^ he may fafely be 
kept by his bail for their indempnity, becaufe the xjourt of juftice 
doth deliver him unto them to be fafely kept. 

The manner of the feverall entries of the bail is worthy of ob- 
fervation, becaufe it is only attained unto by obfervation of preli- 
dents, and the courfe of courts. 

And firfl in cafe of bailment for felony by the common law, 
thofe that do bail him are feverally bound to the king by recogni- 
fance in a certain fumme, that the prifoner fhall appear at a cer- 
tain day, &c. Et ultra quilihet eoriwi corpus pro cor pore^ Cs'r. 

The bail of a felon before- two juftices of the peace, where- 
of one to be of the quorum by the ftatutes of i &: 2 Ph. & 
Mar. & 2 & 3 Ph. & Mar. is for the felon in double, and for 
each of the bail in fingle. As for example: if the felon be 40 li. 
the bail is 20 li. a piece. And herein to obferve in effect three 
things. I. Jd comparendum at the next o;aole delivery. 2. Ad 
JIandum redo de fehnia prcediHa. 3. Ad refpondendum diBo do^ 
mino regi^ &">. See the fecond part of the Inftitutes, the ftatute 
of Marlebridge, cap. 27. if the party bailed propter privilegium cle- 
ric ale refpondere noluerit^ non amercicntur illi qjiibus iraditus fuit in b al- 
lium. There mvift be alfo a liberate in that cafe to the gaoler, if 
the felon be formerly committed to prifon, to deliver him out of 

Before the faid ftatutes of 3 E. i. cap. 15. 27 E. i. cap. 3. and 
I & 2 Ph. and M. cap. 13. If any perfon had been let to bail 
that was not bailable: by Jaw this amountethto a negligent efcape, 
and fhall be puniflied as a negligent efcape of a felon fliall be, that 
is, to be fined at 5 H. But by the ftatute of i & 2 Ph. and Mar. 
the juftices of gaole delivery fhall in that cafe fet what fine upon 
the judices of peace, &c. they fhall think fit. Upon z capias, and 
a cepi corpus returned, the entry is traditur in ballium 8 die Mail 
anno 16 regis H. 8. Jo. Long, 6Sc. iifq; diem Mercttrii prox' futur\ 
et Jic de die in diem, et iermino in ter^ninuni, quoufq; placiturn pradi^um 
terminetur, viz. qidlibet eorum corpus pro corpore. 

If A be in cuftodia marefchar in the kings bencli, and a bill of 
debt be brought againfl him ; and the defendant finde B for his 
bail, B entreth a recognifance to the plaintife with this condition 
precedent, Qiiod fi contigcrit prad^ defcndentem debit* et damna ilia 
pr.-efato querent i minime folvere, aut ft prifon ce marefchalli ea occafo7ie 
non rcddere, that then he would fatisfie the fame. 

Nota, in thefe perfQuall a6lions the baile is only bound, and 
§ their 

C^P' 31* Jufticesof Peace. 179 

their recoenifancc is generall, and of no 'certain fiimmr, .1 , ,l ,, ..i 

cafe of felony : and againft him that is by bail in the kings bench, 

any ftranger in the fame term may fiie him by bill in any ycx 

fonall aftion; otherwife it is if he were by mainprife r/e die in ^tim. 

Hut if A be outlawed in any pcrfonall a^ion, and taken by force 9 ■ 

of a capias utUgatunty and plead any plea triable by the country in Jj . 

avoidance of the outlawry, as that he was comniorant in another bench 

county, &:c. In this cafe A fliall be bailed, and the entry is, Sufrr 

hcc^ T B, et B T. manucpperunt pr^fat, A hahendiim corpus ejus hicj 

irfc. ct Jic He die in diem in quemhhct diem placitiyquoufque placitum prtf- 

dlSlum terminctur^ et judicium inde reddltum fuerit^ vj/. quilibet ewum Here the ball -ic 

c^pus pro corpore : etpr^dieius A ojjumpjit pro feipfo ejjlr.dl tunc hie ad '*°""*' '" "^ '^"'" 

qucmlibct diem placiti pr^di^i fuhporna 40 //. ^cji contingat ipfum A, ^^rbcrt'^r^^ 

iid aliquem diem^ ^c. defaltttm facere^ aut ftilam fuam in hac parte psincif.«ll ir. 1 

mn profequi. Note, wherefoever the principall is bound, it is in a ceruinfum. 

certain fiimme. 

And where feme do hold, that in all cafes when any flatiite en- Stanf.p' ^ - - ' 
a»5leth that the body of the delinquent fhall be committed to pri- b. 
fon at the will of the king, he cannot be let to mainprife before 
the kings will be known ; the rule is good if it be rigiiily under- 
Itood ; for he cannot in that cafe by force of any Aich flatute be 
imprifoned, before he be indiifted, convi6ted, and judgement given, 
and then he cannot be bailed or letten to mainpriie, becaufe his 
offence appeareth, as hath been faid. 

And the cafe there cited in 24 E. 3. upon the flatute of 2 E. 3. 24 E. 3. 33. Sir 
cap. 3. for going armed in Weftm. hall, &c. the book faith, that Tho. Figgot* 
Thomas Figgot chivaler fuit arraine per Shard, ^c. which provcth ^'^^• 
that he was indii'^ed, arrained, and legally proceeded with, neither 
was his armour forfeited before conviction. And note, that the 
faid act in that cafe giveth the forfeiture of his armour, and impri- 
fonment: and therefore in that cafe he fhall not be fined: but Sir 
Thomas Figgot might have been bailed before convii5lion. 

In the next place we are to fpeak of mainprife, manucaption which qj mcinpn/f, 
deriveth it felf, and fignifieth a taking into the hand. 

Every bail is mainprife, (for thofc that are bail take the perfon 
bailed into their hands and cuRody) but every mainprife is not a 
bail, becaufe no man is bailed but he that is arrcfled, or in prifon : 
for he that is not in cuflody or prifon cannot he delivered out, as 
before it appeareth. But a man may be mainperned which never '7 E. -j. fo. 1. 
was in prifon, and therefore mainprife is more large then bail. As !^p'^ ^' *' « 
in an appeal of felony, the defendant wage battcil, &c. and a day ap- ^ MlinVrifc^^l 
pointed, Sec. the plaintife fliall finde mainprife, &c. to appear, 5cc. • « ^.4. v 
And yet he never was in prifon or under cuflody. And ♦ fome- i H. 6 6. " 
time thefe mainpernors are called pledges. AKo if A be In ex'e- 30 E* 3. 20. 
cution for debt, &c. at the fuit of T, and fueth a fcve fac" upon *^ ^* 3- »*• 
a releafe or the like, the entry is, Et fuper hoc prtedihui A. dimittitur \\ „* ■*" *^" 
per manucapt tL U. h r . qui eum manuceperunt, ad habendum corpus fance 17. 
ejus hie ad pr^fatiim terminum^ et Jic de die in dicm^ t^c. quoufque indi 8 H. 6. 30. 
judicium re ddit urn fun it. Et Ji pro pr^di^. T. tranjiait, exeqttatur^ 
viz. quilib t fub poena eifOli. quas quilibet recogwrjit, (sc. ad opus ipfius j" l3o T 

T. levari^ ^c. Ji cmtigerit ipfum A. ad aliquem diem placita dffaltam 
jacere^ feu idem placitum cum effe^u mini me prcfequi, vel ft ah exccu- 
tione judicii., Ji pto pra-d. T. rtddatur verfus ipfum A.faciend. rctrahcre^ 
^c. And this is properly in the entry faid, by mainprife, and no 
haile, becaufe it is for the plaintife in thc/clrefac' who was in cxe- 


* Reglfter. 
Bra(ft.lib.3. 154. 

* -^3 E. 3. main- 
prifeia. 36E. 3. 
5b. 13. I R. 2. tit. 
bill 9. 9E.4. iz. 

31 H. 6. 10. 

32 H. 6. 4. 
39H. 6. 37. 
21 H. 7. 33. a. 
Vid. 4 H. 6. 8. 
per Cokeine. 

Of pledges. 
Glanvil li. 10. 
c.5.Stat deoffic. 
cor.4E. I. Plcgii 
de profequendo. 

^F.N. B. 31. f. 
«c 195. h. 
17E. 3. 75. b. 
Lib, 8. 61. & 
lib. 5. 49. ^. 
Bradt. li. 4. 
f. 254. a. 
* Regula. 
^ Regift^. 288. 
F. N. B. 19. 
18 E. 4. 9. 
^ Vid 2 H. 6. 
f. 11;. 2 part of 
the Inft. W. 2. 
cap. 2. 

*^ 31 E. 3. main- 
prife 21. 
42 E. 3. 7. ace' 
f T2 Ei. Dier 
a88. 20 E. 3. 
pledu-es II. 
9 £.'4.27. 

2H.4. 17. 
iS E. 4. 9. 
i H. 7. I. 17. 
? See Mag. Cart, 
cap. 8. 2 part of 
the Inftitutes. 

^Regift. F.N.B. 
25. See the third 
partof thelnftit. 
cap Fugitives. 
^ 2 H. 7. fo. 2. 
33 H. 7. 10. b. 
^ I3H-7. fo. 10. 
b 14H. 7 8. per 
Fineux & Trem. 
Thefe words are 
'veil explained. 
Hil. joEiiz. co- 
ja.n rege intra. 

Juftices of Peace. Cap. 31 

ciitlon. Now for as much as every bail is a mainprife (as hath been 
faid) bail is oftentimes tearmed in our books by the name of main- 
prife as before it hath partly appeared, and as it appeareth in the 
* writ de manucaptione. 38 PL. 3. fo. 14. ir H. 6. 31. ijo E. 3. 11, 
I H. 7. I. And in divers ads of parliamient, Afton Burnell 
It E. I. 4 E. 3. cap. 2- 23 H. 6. cap. 10. i & 2 Ph. and Mar. 
cap. 13. 

Laflly, * there is a maniftft diverflty between de die In dktn , and a 
bail : for he that is by mainprife de die in diem no bill can be main- 
tjiinable againfl him: otherwife it is againft him that is by bail per 
curj^rm curi<<J, 

Plcgii ixnd plegiatio are derived of the French word pleige^ which 
fignifieth one that undertaketh for another, 2. {wx-tX-y ^ jidd jujjlr . 
Now as every bail is a mainprife, fo every bail and mainprife is 
ex vi termini pkgiatio : which fee in Gianvile for the act of fureti- 
fhlp. But in legall underftanding it is taken, firfi for the pledges 
which the demandant or plaintife fmde in fuch writs as begin Si A 
(i. querens) fecerit te fecurum de clamor e fuo profcqiiendo^ Ci/r. And 
theie are called //f^/7 /^^ />rff/'^Z(r<!?W(?, and the reafon of thefe were, 
for the anfwering of the king of the amerciament if the deman- 
dant or plaintife were barred or nonfuit, &c. fo cautious were the 
founders of our law, that the king fliould ever be anfwered of 
fuch duties as belonged to him : but the writ of the ^ king, queen, 
or of an infant, fliall not comprehend that claufe, fi fecerit te fecu- 
rum^ ^c. becaufe they (hall not in thofe cafes be amercied. But 
it is obfervable, that the tenant or defendant diall finde no pledges : 
and yet if judgement be given againft him he flial be amercied, 
&c. for * melior eft conditio pojjidetif is et rei, quam aficris. 

<= Pledges may be found in the chancery, or may be entred at 
anytime hanging writ or bill by the difcretion of the juftices, upon 
gaging deliverance by the avowant he fliall finde pledges de libera- 
tione ilia facienda, 

^ There be ^\(o plegii de reform hahoido by the ftatute of W. 2; 
of pledges come plevin^ rephvyn^ replegiari^ ^c. See the ftatute of 
Marlebridge, ca. 27. that traditus in hallium^ repkgiatus, ct per ple- 
gios is all one ViV\<\Jym?iyma, 

« When the defendant commethin by cap. or exigent he ftiall 
not finde pledges but mainprife. 

*" He that lueth by bill ftiall finde pledges de profequendo in fine 
hilla^ which have been controverted in books. 

We have hitherto fpoken of pledges in a judiciall courfe. 
s There be alfo voluntary pledges, as you may reade in Fleta, lib. 
2. cap. 5. 32 £. 3. mon/lrans desfait%. 179. 42 E. 3. 11. 44 E. 3. 
21. 48 E. 3. 20. 22 Eliz. Dier 270. F. N. B. 137. c. 

Surety comprehendeth all the former. And note, there is a 
furety by the common law, and furety by ftatute. By the com- 
mon law, h as in a writ de fecuritate invenienda rx exeat regnwn^ Cs'r, 
There is furety of the peace, and furety of the good behaviour de 
bonogeftu. The furety of the peace cannot be broken without fome 
aft, as an affray, or battery, or the like. But the furety de bor,r> 
gejiu confifteth chiefly, that a man demean himfelf well in his port 
and ^ company, doing nothing that may be caufe of the breach of 
the peace, or of putting of the people in fear or trouble ; and that 
it doth not confift in obfervation of things that concern not the 


^*^P*3'* Juitices 01 I'cacc, iSo 

peacr, as in not well doin^^, his art or occupntion. Tims i;ir is t.ic 
nuthority of the book in 2 H. 7. by the refohition of all the juf- 
ticcs aflTcmblcd for that piirgofc. Put in mine opinion, the repor- 
ter malcfc T^eJJit In the laft words of the cafe. 

' At a generall I'efiions bolden at Bridgcwater in the county of ' '<"• :^ * >• 
Sommerfet, anno 28 Eliz. one William King witii furciics was coram rege. 
bound by rccognifance to appear at the next grnerall fefiions of the 
peace in the fame county, et qwif interim p henegereret aga /iiiiam do- 
minnm rerrinam^ et cnnfliim ptpulu ^fuum. And after at the next fertions, 
William Ring appeared and was indi(fted for Oanderous words fpoken [ l8x ] 
iiuce his bindir.g, viz. for faying at one time to Edvv. Kyrton, cfq; 
Thou irt a pelter, thou art a liar, and haft told my lord lies, and 
I will make thee a poor . And he was further indicted, 

that fince the faid recognifance, claufum cujufdam Joliunnis l^ichy 
vi et trmis fregit et intravh et averia et catalla ipfixis Johannis in 
clattft pr.tdicio depafcent' illicit e vexavit et chajiavit. And after* 
wards at another time he laid to the faid Kyrton, Thou art a 
drunken knave : which indicftment was removed into thi kings 
bench. And hereupon two queftions were debated divers times 
both at the baiTe ana the bench. Firft, admitting that all that is 
contained in the indictment to be true, whether any therein was in 
judgement of law a breach of the faid recognifance. The fecond, 
for how much the faid indictment was good In law. As to the 
firfl it was refolved, that neither any of the words, nor the tref- 
pafle, were any breach of the good behaviour, for that none of 
them did tend immediately to the breach of the peace, for thoiig^i 
the faid words (efpecially thou art a lyar, &:c. thou art a drunk'ii 
knave) are motives and mediate provocations for breach of the 
peace, yet tend they not immediately to the breach of the i^eace ; 
as if William King had challenged Kyrton, or fcnt him a chal- 
lenge to fight with him, or had threatened Kyrton to beat or 
wound him, or the like : thefe tend immediately to the breach of 
the peace, and therefore are breaches of the recognifance of the 
good behaviour. And this diverfity was juftly colle«5ted upon the 
coherence and context of the ftatute of 34 E. 3. wher^jby juftices 3^ £. 3. cap. a. 
of peace are afilgned for keeping of the peace, and to reftrain the 
offenders, rioterb, and all other barattors, and to chaftife them ac- 
cording to their trefpaflb and offence j and to inquire of pillors and 
robbers, in the parts beyond the feas, and be now come again, and 
go wandring and will not labour, &c. (And thus much for pu- 
nifliment of offences againft the peace after they be done : now 
followeth an exprelfe authority given to the juftices, for prevention 
of fuch offences before they be done.) viz. * And to take of all * Ti);."! wat -'•- 
them that be not of good fame, (that is, that be defamed and '^^ J/^.jl^^"-^'*'""^ 
juftly fufpc(fted that they intend to break the peace,) where they pre'^Tc aulh.) r; 
fliadl be found fufficient furety and mainprife of their good beha- », jjf^irc* <rt 
viour towards the king and his people (which muft cnncerne the peace 
kings peace, as is alfo provided by the word fnbfequent) to the in- 
tent that the people be not by fuch rioters troubled or indamaged, 
nor the peace bKmifhed, nor merchants nor other pa fCng by the 
iiighwayes, difturbed, nor put in the pcrill that may happen of 
Tuth offenders. For the trefpalfe, &c. Although every wrong- 
full frefpaffe is, quare vi et armis et coitra pa^m^yct ihefe force and 
■rms, or contra tacem implyedin bware not taken to be fuch as flull 
IV. Inst. ' P u-kir 

i8i Juftices of Peace. Cap. 31. 

make a breach of the good behaviour ; becaiife they are trefj3a{fe 
upon the land or touching goods or chattels, and not the perfon of 
a man. 

21 E. 4. 10. As to the fecond point it was holden, that the indiftment con- 

cerning the words was void and coram non judice^ and good only for 
the trefpaire, quare claufiim^ &V. Bat if there be any juft caufe of 
breach, he ought to have ?i fcire fac'' upon the recognifance. 

2j H. 6. 26. In an account, if a capias ad computand'' be awarded ngainft the 

defendant, and thereupon he is outlawed, and rendreth himfelf to 
the prifon of the Fleet, and auditors be afiigned to him, before 
whom they be at i(fue, and the auditors bring the record into the 
common place, and the defendant found furety in 200 li. to ap- 
pease in proper perfon every day pendente placito ; and if the ilTue 
pafle againft him, that he rendreth himfelfe to prifon. 

* 45 E. 3. Sure- a A tine y«r conufajjce de droft wvls levied to an infant, and be- 

*y 24- caufe the infant ou2;hL to pay the fine to the kins;, he found /fr«r/- 

*T ^ ^ tatcrn de jirie Jolvendo, 

F. n! B. 79 g. There is alfo a writ de fecuritate pacis^et de hens gerendo. 

2 H.7. 1.4.&C. ^ In ho77iine replcglando the defendant avow for that the plaintife 
36 H, 6. 23. is his villain regardant. The plaintife faid that he is free, and 

3 H- 4- 9- thereupon they were atiffue, the plaintife praved that he might gage 
b 6 E. 4. 8. deliverance. And it was awarded thai he Hiould have deliverance 
3z U. 4. 4. a. ^^ j^j^ goods, and finde no furetv that the avow- ant fliould have the 
I- H.7. 17. a. goods again if it were found for him. But note when the avow- 
^\ H. 7. 3. ant be at iffue upan the villenage, ^ then the plaintife fliall find 

furety to fue cum effeFtu. 
r 182 1 Surety; by (tatutes: fee the flatute of W. i. cap. 20. Dema^ 

Sc2 F. N. B. ' lefaBonbus in parcis in the fecond part of the Inftitutes in the expo- 
fition of the fame : the flatute of Gloc, cap. 4. and W. 2. cap. 21. 
for fiiiding of furety in a csjfavit. See alfo the fecond part of the 
Inftitutes in the expoFition thereof. 

The Itatute of W. 2. c. 4. Et ftatut. dc def:infione jiiris^ anno 20 
E. I. of finding of furety by tenant by refceipt. See the fecond 
part of the Infiitutes the expofition of the fame. And m^any other 
whereof we need not to make mention ; only this is obfervable, 
that when anv llatute doth require pledge., or furety to be found, 
tliey ought to be fufficient, for infufiicient pledges are no pledges 
in judgement of law ; and furety cannot be ex I'i termini unlefle it 
be fufficient. 

It appeareth by W. 2. cap. 29. that the '^- writ de odio et atta 
concerning the baUment of prifoners is groimded upon Magna Car- 
^''^^i6^^"" ^^* And it is holden by fomc, that writ is not now in ufe, but is 

"pie-. '133,134. taken away by the ftatute of 28 E. 3. But this writ is revived 
28 E. 3. cap, 9. again bv the ftatute of 42 E. 3. cap. i. wdiereby it is enafted that 
Stanf. pi. cor. if ^ny ftatute be m.ade again ft Magna Carta, or Carta de Forejla, it 
77- ^- is enabled to be void. See more of this matter in the fecoud part 

corarn'releiot!' of the Inftitutes, Mag. Cart. cap. 26. which were unnecefTary 
71 & 79". here to be rehearfed. This writ de odio et atla is omitted by Fitzh. 

ile;iift. a6S. b. in his N. B. Concerning the writ de maniicaptione^ one kind there- 
F. N. B. 250, a. ^-^f (lire^led to the flicrif is a Vv-rit grounded upon, and rehearfing the 
f''*^r't''2l'E -. ft?it^^^eofW. 1. cap. ic. and how that before him by a certain 
ly^ '„y ' ^' inquifit'^on of office A B iiandeth indicted de quodam latrccinio cujuf- 

dam cqu:^ &V. Now in as n:uch, as by the ftatute of 28 E. 3. he 



W. 2. ca. 2C 
Tvlae. Cart. 


Cap. 31 

Jiiftices of Peace. 


Regil. 80. !• 
Rffif^. 153 b. 

4c 351. 0. ;». V. 

Reg' ft. 79- 
F. N. B aca 

ri. f. f. 

See Br«0. li. J. 
i»i. 154. Flcta 
li. a. c«. a. 

Bria. II. 5, 
to. J 4 5. Driroa 
fo. 49, FJetJi, 
li. I. ca. 40. 
Mirror ca. z. 
^. \J.!aaf>ptalJ4 

cannot take fiich :• • '• ' ' • • • any writ or coniiuifljon, 

Hicrtforc that wi . But the writ of mam- 

— ' • < , as to the jurticcs of the 

: for the ftatutc of 28 E. 5. 

» , to irirriis, ;in>i u; luc ; ii> Onlv UpOH taking o*^ —'•"'•- 

t: ; writ of manucni^tioKe nwy in or her cafes be 

the mcnf. Vide the ftalute of 4 E. 3. cap. 2. for the cou.^ ui i.ic 

nurnulfea, F. N. H. 1%, I. 

For the writ of homht re^hgiatttV ^ fee the Rcgiftrr, fo. 133. 
r. N. B. 66. E. Hil. 4^ E. $. f«m/» W'' rot. no. Siiffcv. 
Mich. 5 H. 4. rot. 26. Dcvo}i per breve reikis in duobus com' Wil- 
liam Scuttcs cafe. 11 H. 4. 15. F. N. B. 68. c. cap. in Wi- 

So odious was unjnft imprifonmcnt, or iinjuft deteyning of any 
11 in prifon, as in ancient time there lay a writ de pace et int' 
•:r'nto^ C*fc. ubi liber hmi^ ^c. uno mo Jo propter injujrnm cab- 
tiouc:!!^ ct alio moth propter injujlnm dctcniitnemt (dc* And there you 
may read the form of the writ of ap{)eal, de pace et imprifmnmento^ 
which we have the rather remembred, that it may be obferved 
what fevernll remedies the law hath allowed for the relief and 
eafe of the poor prifoner. But the readied way of all is. by habeas 
corpus in the term time, or in the vacation out of the chancery, 
as you m.iy read at large in the fecond part of the Inftitutc--, Ma;/. 
Carta cap. 29. and ftaait. de Gloc. c. 9. and the expofition upon 
the fame. 

The clerk of the cro\vn, clerk of the peace, and clerks of afiife 
fliall cerrifie brieflv a tranfcript of fnch attainder, outlawry or con- 
vidion as is had for any kind of felony before juftices of oier and f">%»lajinguiit 
terminer, juftices of gaol delivery, and juflices of peace before ''jff^'^'' ^•'*« 
the king in his bench, there to be and remain of record, &c. * See 
the ftatute, a very neceflary law for the plea oi antafoitz attaint or 
convi<ft for ouftine of clcrgv, &:c. and for efcheats and forfeitures 
to the kmg. 

* For the better imderflanding of this aft of parliament, it is to 
he underftood, that fnch attainders of outlawry and conviftions of 
felony before any of the juftices named in this a6t, as are certified, 
or delivered into the kings bench, are under the cuftody of the 
clerk of the crown of that court, and for that caufe he is named in 
this aft. 

See the ftatute of g E. 3. cap. 5. by which it is ordained ^nd 
eftabliflied, that juftices of aftife, gaol delivery, and of oier and 
terminer, fliali fend all their records and procelFes determined, 
and put in execution to the exchequer at Mich, every year once 
to be delivered there, and the treaiurer and chamberlains, &c. 
ftiall keep thenj in the treafiiry as the manner is, fo that the 
juftices always doe firft take out the cftreats of the faid records and 
procefl'es againft them to fend to the exclictiuer, as they were wont 

By the ftatute of 11 H. 4. ca. 3. juftices aftigned f/t/r/, juftices 
of aifife) ftiall caufc to be delivered into rhe kings treafury all the 
records of aflifcs, mordanceftor, and of certifications before them 
determined every fecond year. 

All ijidiftnieuis and prdt iitments in the flicrifs turn, or law d-ivt 

P 2 

^4 H. 8. cap 14. 
eJ to be rtddtiuU 

8 E. 4« ig. 

» Vid. Dier 8 EL 
253. 254. upon 
anorhfr branch 
o\ this adl. 
^ 14 H. 7. zo.ptr 

to bs under itt>o<t 

of the kio^s 


14 H. 7. 15. b, 

ptr Merdauct, 


1 1 N. 4- cap. 2. 
13 H. 4. er- 
ror yi. 


.» L. 4. iv. %. 


Juftices of Peace. 

Cap. 31, 

3 H. 7. ca, I. 

lib. Intr. Raft. 


3 H. 7. ca, I. 

W.I. an. 3 E.I. 
cap. I. 

Juftitia pacis 
mater & nutrix. 

I Mar. cap. 12. 
3&4E. 5. 
Though the bo- 
dy of thefe ads 
be repealed, yet 
the ax'icme re- 
hearfed in the 
preamble fliall 
continue for 

* 32 H. 8. cap. 9, 

ftiall be delivered to the juftices of peace of the fame county, at 
their next feffions of peace to award procefTe, &c. 

After the murder or manflaughter found before the coroners 
they fliall deliver their inquifitions afore the juftices of the next gaol 

If any perfon be murdered in the day, and the murderer efcape 
untaken, the townfhip (liall be amercied, and the coroner hath 
power to enquire thereof upon view of the body, and the juftices of 
peace have power to inquire of fuch efcapes, and to certifie afore 
the king in his bench. 

And (that we may fay fomewhat of every thing) forafmuch as 
the charge to be given at thefeflions of the peace confiftfiih on two 
parts, laws ecclellafticall for the peace of the church, and laws ci- 
vill or temporal! for the peace of the land, it Ihall be very fit to 
lay, as a foundation of the charge, that excellent law eftablifhed by 
authority of parliament, which we have tranflated into Latin. Im- 
primis rex vuk, et pracipit quod pax facrofan^^e ecclejla^ et terr^e fo- 
lide cujiodiatur et confervetur in omnibus, qucdqiie ju/iitia Jingulisy 
tarn pauperihus^ quam divitihus adminijirettir^ nulla habita perfotiarum 

Firft of all, the king willeth and commandeth that the peace of 
holy church, and of the land be well kept and maintained in all 
points, and that common right (/. juftice) be done to all, as well 
poor as rich, without refpe6l of perfons. 

Hereupon the charge to confift upon two parts, i. Of 
clefiafticall, and 2. Of laws civill, or temporal!, with an exhorta- 
tion to doe juftice. 

Or an other axiome or principle of the law may be the'founda- 
tion of the charge. Imprimis intereft reipublic^, ut pax in regno ccn^ 
fervetur, et quceciinaue pad adverfentur provide declinentur. 

It is moft necefTary in a commonwealth to provide, that tran- 
quillity and peace be continued in the realm, and that all things be- 
ing contrary thereunto may by forefight be efchewed. 

* Or that of 32 H. 8. There is nothing within this realm that 
conferveth the fubjefts in more quietnelTe, reft, peace, and good 
concord, then the due adminiftration of his laws. 

t)r the like, fee the third part of the Inftitutes, in Epilogo^ 


^^^P' 33* Jufticcs I'^ F*'(t. 184 


A Court of Inquiry of the Dchuilts of the Juf- 
tices of Peace, Juiliccs of AHiic, Shcrifs, and 
Under-Sherifs, touching the Execution of the 
Statute of 13 H. 4. cap. 7. concerning Riots, 
Aflemblies, and Routs. 

THIS court is raifed by the ftatute of 2 H. 5. and is a court aH.s. cap. I. 
oiiiy of inquiry, and to certifie the inquefls incontinent into See 19 H. 7. 
the chancer)', as by the faid itatute more at large appeareth. *• *^* 


Juflices in Eire, 

THEY were originally inftituted for the good rule of the fub- See the 2 part of 
je£ts, and for the eale of tlie countries, and that fuch as had the Inft. W. 1. 
franchifes might chime them. "p. ^l' 

They were called jujiiciarii in itinere, or itinerantcs^ in refpeft of ^raaon lib. 3. 
other juftices that were rejidentes. In the black book in the exche- Britton fo. 1 
quer, cap. 8, they are csilitd ju/iiciarii Jcanibulantes^ ct peilufir antes, j e. 3. fo, ay. 
See Vet. Mag. Cart. 2 part. fo. 72. Aruc\ et facramenta in iii^ Kclw. fo. 143. 

Their authority was by the kings writ in nature of a commif- 
fion, they had jurifdi(flion of all pleas of the crown, and of all 
aiftioni reall, perfonall, and mixt : they road from (even years to 
feven years (but now by tlie ftatuteof 27 H. 8. ca. 24. all juftices 
in eire muft be by letters patents imdcr the great feal.) In what 
county foever they came, all other courts during the eire ccafed, 
and all thofe pleas in that county, or riiing there before any other, 
the juftices in eire might proceed upon as the others might have 
done. For example: a writ was direfted to the juftices of the Regi*. 
common picas to adjorn, and fend all the pleas of that county ?. N. B. 243. k. 
which were in the court of common pleas before the juftices in eire »4 ^- ?• »9' 
to be determined before them, &:c. And if judgment had been '5"-7-5« 
within that county, the juftices in eire might award execution 
without a fclre fac\ See the firft part of the Inftitutes, fecft. 514. 
and read the ancient books and other authorities there quoted for 
their antiquity anc^ jurifdi«5tion, and the caufes wherefore they va- 
niftjcd away. But the other juftices of eire. viz. of the foreft, con- 
tinue to this dav according to their originall inftitution. See the 
cliapter of the Court of the Foreft. Sec alfo the Iccond part of the 

P 3 Inftitutes, 

i^^'f Juftices in Eire. Cap. 33. 

Inftitutes, Marlbridge 24, 25. 27. W. i. cap. 18. Sc W. 2. 
cap. 10. and the expofition of every of them. 

What franchifes and liberties oiiaht to be claimed before ju dices 
in eire, fee Hb. 9. fol. 24. the cafe of the abbot of Strata Mar- 

The flile of their court was, Placita dejuratis et qffi/is ef coron. de 

ittnere Johannh de Valllbus et fociorum jujiic' inner' apud Ockham m 

coni' Rutland in crajiino epiphani^ Domini^ anno regni regis Edzu. 14. 

Thefe jufticeb in eire did hold their courts, as hath been faid, 

[ 185 ] from {t\tn years to {t\/Qn years, and firft they began with pleas of 

Braa.Lb. 3. fo. the crown, for faith Bradon, Imprimis incitere debent de placiti[ co- 

V!^'^' V^'^* ^^"'^^ ^^^ quibus terininaniitr afticnes criviinalcs tarn major es quam mi- 

ca^ ^2Q "veff. ^^^'^'•^- -^'^^ one could not be indi6ted for any thing, concerning 

fincm. ' ' t^^ pleas of the crou-n, done before the laft eire : for fo it appear- 

__., eth by Bra^lon, Ncn erit quarendum de placitis illis coronce qua emer- 

Vide pt^ftea, ca. Jeyunt ante allud iter jujiiciariorum, et qua coram eis propojita nonfuerimt, 
6ouf Pjpowdei-s. ^^^ i^y Fleta, Ex capitulis de -ceteribus placitis corona alias prafen- 
tatis et nbndum terminatis^ jolet exceptio qnibnfdam indiSiatis orirz^ quod 
de novo indi^amento de faB* ante ultimum iter impofito non tenetur 
refpondere ; et Ji non Jit alhcabilis^ Jequituf quod juratorcs hundredi pU" 
niendifunt de c^mcelamento^ lel de perjurio convincendi. 

And it were to be wifhed that in criminail caufes at the kings 
fuit, there were a limitation of time, fpecially in cafes concerning 
the life of man. The comm.on law in appeals at the fuit of the 
party hath in thofe cafes limited a time, viz. that they muft be 
brought within the year and the day after the offence committed : 
and the reafon thereof was, that the caufe might be tryed, whiles 
it was frefh in memory, and that fuch as could teflifie were living. 

Vid. Hil. 15 E. 1. tn banco rot. i;6. they could adjoru into ano- 
ther county. 
Rot. par. 20^.1. -jj^g juftices in eire might inquire of the deeds of juftices of gaol 
*°^'' * delivery. 

Brad:on faith, EtJipoJ} intcrvalhm acctfare velit^ non erit de jure 

audiendus^ niji docere potejl fe fiiijfe, jvftis rationibui impeditum. And 

Bra6fon alfo faith, that after the charge given the juftices in eire, 

debent transferre fe in locum fecretum^ et convocati^ adje quatuor, 'oelfeXy 

Bujonesjj've vcl pluribus de major ibus de coin* qui dicuntur * bufones com'' ad quorum 

urjones, " ^ nutum dependent vota aliorum qualiter a d'no. rege et concilio fuc Jit pyovi- 

botirfon : ioK zs'it ff^'^^* quod omnes tarn 7niUtes quam alii qui Junt^ \f^ annorum et amplius 

is in the pruverb, jurare debent^ ^c. 

He that bean th 

the purfe ruleth the roaft, which agreeth v'lth Bradlons ciefcription here, Ad qmrum nutum dtperidaa 
ijota aliorum. So vulgarly called, which alfo Brad-on infinuateth, when he faith, i^ul dicuntur Jm- 
Jones. •■ It is mifprinted, and fhould be iz annorum, 2 for 5. S^ee the ? part of the inlt. Mag, 
Car. ca, 7. & 3? 

Br.junfd. 716. Sq gj.^jj|. ^,gg fj^g authority of juftices in eire, that if they came 
fL'ta"li!'i ca ic* '"^° ^^''^ County where the juftices of the court of common pleas 
§ Ek- I'apiru/is ' ^^U the jurifdiftion of that court during the eire ceafed, but they 
mrJ.Jincm. yeelded to the kings bench. 

See cap. Itineris, Vet. Mag. Cart. part. i. fo. ico. 151, &c. 
See Hovenden, ann' D'ni. 11 j6. Vid. Hil._^i3 R. 2. pi. 2. Of 
proceedmcTs before them. 
Re':nT-. 19. b. Hex jiifliciariis fuis prox^ itinerantlbus in com. N. falutem. Qui^ 

'^'Yf'^', per * commune c^nciliwn re^ni ncf,.ii Anojia prcvijum eji, quod quj- 

Kegiilerisagood expufulonof this ft.tute. See the 2 part of the Jnft. V/. 2. cap. 10. 


Cap. 3.i. JuiLKc.-> v.i Tiailballoil, 185 

liUt liber homo liheie poffit facne attwnatum ad llhrrtata Jua. 
candas^ exigendas^ ptflfyurndaf^ rt de/endendns ; vobis mandamus^ quod 
aftornat* qurm A per Htnai/uat pntentes Ju> loco altornmr volunit. a I 
libertaus fum vmdicandaiy exigendas^ prfifcquendnt^ ft difendt 

ram vobis in itinere ve/ho in com* prat di^o^ loco ipfiut h fine dijj. 

ad hoc rrcipiatis^ &*<". 

See alfo another writ in the P--''- - '■■ '■■•- P^ -'-"-r-rr -v-t. 
tcnd^ in itinercy ^c. 

CAP. XXXIV. [i86j 

The Court of Juftices of Trailbafton. 

THESE juftices flit by force of the kings coinmiiliu]) of oicr 
and terminer grounded, as fonie hold, upon an ordinance 
made by king E. i. and the lords at a parliament holden in 
anno 33 E. i. for the hafty proceeding. And therefore they were 
called juftices of trailballon, becaufe they proceeded as fpeedily as 
one might draw, or trail a ftaffe. I'hey fay upon the faid ordi- 
nance in the fame year, viz. 33 E. i. a commiflion of oier and 33E. i. in Dorf, 
terminer -vocat' trailebajion fecundum ordinatiorum indcfa^^ in parlia' pat. parte i. 
fnento de anno 33 E. 1. By this it apj^earcth, as fome have con- 
ceived, that this commillion was builded upon an ordinance in 
parliament, and not iipcn an a<ft of parliament. 

Others fay that this commiflion was grounded upon an acl of Vct. Mag. Cart, 
parliament in anno 3 3 E. i . intituled, Statutum quod vocatur Ragman de % parte fo. 28. 
jufliciariis ajtgnatis. See the iiatute, and that the ordinance men- 
tioned in the commiflion of 32 E. r. is the flatute Ragman^ fla- 
tutes being often called by the name of ordinances, for every fta- 
tutc is an ordinance, fed mn e conveifo. 

But let us now consider what lignt our books have given us, the 
flatuie being fomewhat obfcure and dark. 

In Trin. 2 E. 3. we read this cafe. William de B. fued a writ ^ j. , ^^ j, 
of error returnable in the kings bench upon a judgement given in 
a plea of land at the fuit of John Hodey, which was pleaded by 
bill before juflices of trailbafton, where becaufe the juftices of 
trailbafton did fend only the record of the plea, they were com- 
manded to fend the tranfcript of their commiflion, and the bill alfo 
with the paiinell, the which they did, and again the record alfo. 
In which cafe you may obferve thefe five conclufions. Firft, it 
was afligned for error, that John Hodey made his plaint cf cer- 
tain land againft William de B. being prefent in court before the 
juftices of trailbafton, and he was put to anfwer without nuiking 
of proceffe againft him, and therefore they erred in receiving the 
plea without procefle, Lc, fed non allocatur. Secondly, for the 
juftices of trailBafton be in their cafe as juftices in circ ; and 
in cire when the party puts in his bill againft another which 
Is preie!t in court, the juftices la eire ought to receive it. Third- 
ly, :. error was aliigned, that it appeared by the record, that 

P 4 prcfently 

1 86 Juftices of Trailbafton. Cap. 34. 

prcfently the juftices of trailbafton took an inqueft de circumjian^ 
tibuit which came not in by procefie to give their verdi6l, and alfo. 
it appeared by the record, that the twelve gave their verdi6l, fupe7\ 
facra?neniiim fuum^ without faying de confen/u partium \ fed non alio- 
r catur. For in trailbafton and in eire certain mea are mude to 

come by whom thofe jiiftices doe inquire ex officio^ that is, without 
proceife, whereiinto the parties which have pleaded to iflue agree 
\o be tryed by them, the court erreth not if they take an enqueft 
of them, and it is not found of record, that William de B. did dif- 
aflent : and as to the other point, the court fliall intend an aflent 
where there appeareth no difaflent. Fourthly, the errors affigned 
being no errors, the court did fearch for errors, and to affirm 
the judgment or to reverfe it. And the court did find in the firlV 
record which was fent, that Wilham de B. dicit qucd in nullo eji 
hide adpahilis^ et de hoc potiitfefuper patrimn^ where John de Hodey 
[ 187 j which was plaintif did notjoyn with him, ef pradicius qmrens fitnili- 

ier, which joyning was in the fecond record certified ; but for that, 
that record came in without warrant, and the iirft record certified 
is the record in law, thereupon the former judgement was re- 
verfed. Fifthly, that no error was affigned, that the juftices of 
trailebafton had no lawful jurifdidion, but a writ of error bro\3ght 
upon their judgement, whereby, and by all the context of this 
cafe their jurifdiftion was affirmed, the judges of the kings bench 
J. g having, as is aforefaid, a tranfcppt of their commiffion. Alfo 

they had jurifdidlion in cafe of indictment of death, and fo allow- 
ed, but appeals of felony were excepted in the faid ftatute. 
T^E. 3, Vide Dorf. Pat. anno 14 E. 3. part 3. m. 8. & 2. A commif- 

fion of trailbafton vcas granted to Robert Parning treafurer and 
others in London, Middlefex and Surrey, and like commilhons 
were granted in other counties. 
Rot.parl. iR. 2. A petition was exhibited by the commons in full parliament, 
joi. who prayed that no manner of eire or trailbafton might be holden 

during the warres, or 20 years, &:c. but it was not granted. 

But pracipitatio eJi tiot'ercajujiiiiee : and both in refpecl of the 
precipitation and of fome reference to the next parliament by the 
ftatute of Ragman, this commiffion wholly long fince vaniflied, and 
is left out of the Regifter as not to be put in execution. But the 
commiftion of oier and terminer there remaineih as neceftary and 
iifeful for the punifliment of horrible and enormious offences. See 
before the chapter of Oier and Terminer. 


C^p. 35. The Court of Wards and Liveries. |99 


The Court of Wards and Livcncs railed by Au- 
thority of Parliament. 

FIRST, the king our faid foveraigne lord by the authority afore- The ftatute of 
faid, ordaineth, m^eth, eftabUnieth, and ercacth a certaine ^i",^;");-;t^ 
court commonly to be called for ever The Court of the Kings n„g"wardi. 
Wards: which court by authorit}' aforefaid continually and for A court of re- 
ever (hall be a court of record, and fliall have one feale to be cord, 
graven and made after fuch form, fafhion, and manner, as (liall by thefiatuteof 
be appointed by the kings highnefle, and (hall remaine and be or- ^^^ offic*" f the 
dered, as hereafter (hall be declared. liveries is an- 

nexed CO the 
court of wards. So as now it is in the court of wards and rivcries. 

Alfo be it ena6ted by authority aforefaid, that all wards See the firft part 
which the kings highneiTd now is, or hereafter (hall be inti-". ' " 
tuled to have, with their mannors, lands, tenements, rents. All wards, 
remainders, reverfions, fervices, and all other hereditaments man nor5, lands, 
whatfoever they be, as well in pofTeflion as reverfion, and all 
revenues, i(rues, and profits of the fame, and every part 
thereof, for (he time the fame (ball be, or ought to be in the 
kings pofleiTion, (hall be in the order, furvey, and governance in the order, 
of the faid court, and the minifters of the fame, in manner and f^irvey, &c. 
forme, as by this act is declared and limited. 

Alfo that the (aid matter of the wards for the time being 
fhall have full power and authority to award under the feak- to 
be appointed to the faid court in the kings name fuch proces pro^cs. 
and precepts with reafonable pains to be therein limited, as 
be now commonly ufed in the court of the kings duchy 
chamber of Lancaiter being at Wcftm. againft every perfon or Duchy chamber, 
perfons whatfoever they be, for and concerning the intereft-, 
right and title of the kings majefty, his heirs and fuccefibrs, of 
in or for any wards lands, tenements, rents, account, receit, in any wife 
fervices, or other caufe in any wife touching or cojicerning touchingor con- 
any thing appointed by the order of the faid court, or any "'"'"*» 
part thereot, for and on the behalfe of our faid foveraigne lord 
the king, or to or for any debt, riling and growing by occa- Debt. 
fion of the fame. 

Alfo be it enabled by the authority aforcCiid, that the (aid 
attorny, receiver general!, and auditors (hall diligently from 
time to time attend upon the faid mairter in the faiJ court for Attend, 
the hearing and ordering cf matters and caufes in the fame 
court for the time of tour terms in tlic year ufually kept (or 

By the faid z€t 
of 33H. S. the 
furveyour is ad- 
ded, and to take 
piace befbre the 



No proces out 
the exchequer 
for or concerning 
any ward, SiC. 

iSSf- The Court of Wards and Liveries. Cap. 3 r. 

the law at Wcftm. and procure with alj diligence, that all 
rents, fermes, profits, cafualties, improvements, and other 
emoluments of the wards mariages, ideots, and all manners, 
lands, tenements, and hereditaments being in the furvey and 
governance of the faid court, fhall be truly and juftly paid, and 
anfvvered to the faid receiver generall of the faid court to the 
ufe of the kings highnefle without concealing any part there- 
of. And fiiall alfo caufe and procure procefle to be made 
againft fuch as fhall be indebted to the kings highnefle and 
their fureties, of and for any part thereof, from time to time, as 
the time and cafe fhall require without any delay. 

Alfo be it enafted by the authority aforefaid, that all manner 
of proces that fliall be made out of the kings exchequer to 
or againll: any perfon or perfons for any ferme, rents, ifTues 
or profits concerning the premiiTes or any part thereof, or any 
other thing limited in this ail to be in the furvey, order, and 
governance of the faid court, and the miniflers thereof, fhall 
be clearly void and of none effed to all intents and purpofes. 

Alfo be it enacted by the authority aforefaid, that the faid 
mafter by the advice of the faid attorny, receiver generall, 
and auditors, or three of them, whereof the faid mafter to be 
one of them, fhall have authority by this act to furvey all the 
Widowes, ^ kings widows, and to treat, commune, and conclude as well 
with all and every of the kings widows that now be, or here- 
after fhall be, and that have married themfelves without the 
kings licenfe, or that hereafter fhall happen to marry them- 
felves without the kings licenfe, for their reafonable fines to be 
made to the kings ufe, and to tax and aflefle the fame by their 
difcretion according to the ftatute of Prarogativa Regis : the 
fame fines to be paid to the receiver generall of the wards 
lands, as the fame may appear yearly in his account. 

Alfo be it ena61:ed by the authority aforefaid, that the faid 
mafter by the advice of the faid attorny, receiver generall and 
auditors, or three of them, fliall have authority by this ad to 
furvey, govern and order all and fmgular ideots and naturall 
fools now being in the kings hands, or. that hereafter fhall 
come and be in the kings hands. And alio to furvey and or- 
der all the mannors, lands, tenements, and other hereditaments 
whatfoever, now being in the kings hands, or in the hands of 
any other pe/fon or perfons to their ufes, or to the ufe of any 
of them, that hereafter fhall come and be in the kings hands, 
his heirs and fucceflbrs in the right of any of them by reafon 
of his graces prerogative royall : and alfo by the advice of the 
faid attorny, receiver generall, and auditors, or three or two 
—A fer, of them, to let and fet the mannors, lands, and tenements to 
the kings ufe for the time of the kings intereft for fuch rent 
and fine, as by their difcretion fhall be thought convenient; 
the finding arid keeping of the fliid perfons their wives and 
children, and the reparations of their houfes and lands alwayes 
to be confidercd in the doing thereof; the fame rents and fines 

refer ved 

Natural! fools. 

Cap. 35- The Court of Wards and Liveries. 189 

rcfcrved to the kings grace to be paid alwaycs to the hands of 
the receiver gencrall of the wards lands for the time being, as 

the fame may app" •• • "^ '■ * '• '^ "'id be rcr< -'!- ! -- the 

court of wards. 

And al(b be it cnactcti ny tiic :iu:iu>rity aforcuiid, urii: the 
faid niaffcr for the time being (hall have power and authority 
to take V noes of all and every pcrfon and pcrfons that 

Ihull be U) the court of wards and liveries to anfwer Called by procc*. 

to any matter ailedged againil thein in the faid court, to make 
their daily appearance in the (liid court, to anfwer to fuch 
matters as to them then and there from time to time fhali be 
ailedged. And that all fuch recognifances of what fummc fo- 
cver they be, (hall be as good and cftectuaJl in the law to ail 
intents anvl purpofes, as recognifances taken in the kings hii^h 
court of chancery, or elfewherc before any judge of record [ 190 J 
within this realm. And that the faid mafter for the time be- 
ing with the advice of the court, or of fuch member of the 
fame as tlien (hall be prefent, fo that they be two bcfidc the 
faid mafter, fhall have full power and authority to moderate To moderate re- 
fuch recognifances as be or fhall be there forfeited, and to fet ^'^so'^ce*. 
fines for the fame to the kings ufe under the fummes contain- 
ed in the faid recognifances ; the faid fines to bo levied by 
like proces o{ fcire facias^ as by the ftatute made in the 27 
yeare of our foveraigne lord the kings reigne is given to the 
chancelour of the court of augmentations of the revenues of 
his graces crown. And that the faid mafter for the time be- 
ing with the advice aforefaid (hall have power and authority 
to commit to ward any perfon or perfons for his or their 
difobjdicnce, contempt, or other offence made, or to be made 
triable within the kings court of the wards and liveries, and 
upon the faid matters ordered or decreed there, to deliver them 
from prifon, and to canccU and make void all recognifances 
and obligations taken or hereafccr to be taken in the fame 
court to the kings ufe when and as often as the laid mafter, 
with the advice of the faid court or three of them, (hall fee 
and perceive the matters and caufes, for the which any fuch 
recognifances or obligations hath or hereafter fhall happen to 
be taken, to be finifhed and ended, and the kings grace his 
heirs and fuccefTors, or the party thereupon fatistied, without 
any other warrant for the fame. 

And alfo fhall have full power and authority to hear and dc- The autlorUyf 
termine all and all manner of debts, detinues, trefpalFes, ac- the rouru tj mx- 
counts, reckonings, wafts, deceipts, negligences, defaults, con- '^'9"!''*^^'^* 
tempts, complaints, riots, quarrels, fuits, ilrifes, controverfies, /Ctiau;e^of ih? 
forfeitures, offences, and other things whatfoevcr they ftiall be, ftjtu(eof33 H.8. 
which ftiall hereafter grow, be moved, ftirre^, procured, pur- '^^? 39- 
fued, or arife in, for, or upon any matter, caufe, or other 
thing * afligned, comajitted, or appointed to the fcverall di- •AfTi neJ. 
fwwlions, orders, and governances of tilt lame courts, or any 


i9^ The Court of Wards and Liveries. Cap, 35, 

of them, or for or upon any manner of thing or things which 
may or fhall touch or in any wife concern the fame, whereia 
the king {ball be only party. And alfo all manner of ftates for 
tearme of years between party and party concerning the pre- 
mifes, and to corre£t and punifti by their difcretions all and 
every perfon and perfons which before them fliall be con- 
vi6led of any of the premifes according to the nature, qua- 
lity, or quantity of his or their oiFence or offences, caufe or 
caufes, matter or matters (ail and all manner of treafons, mur- 
ders, felonies, eftatcs, rights, titles, and interefts as well of in- 
heritance as freehold, other then joynw^ures for tearm of life, 
only excepted and alwayes foreprifed.) 

Before we defcend to the fevemll parts and branch of thefe a£ts, 
it iliall be expedient for advancement of truth to handle and clear 
two queftions. Firft, when wards became due to the kings of 
England, by what title, and upon what reafon. Secondly, who 
^ had the charge of the kings wards ; how they were difpofed of, 

and in what court this revenue was anfwered before the reign of 
H. 8. 
r igi 1 The firfl contains three things. Time, title, and caufe. And 

in all thefe three Polydor, and fuch as follow him, do erre. For 
Polydor lib. 1 6. Poly dor faith that Henricus 3. an7to domhii 1219. qui avitum regnum 
pag. 288. civlli bello^ ac dijjenjionibiis vajiatum^ opibus fpoliatum^ atque prope con- 

fedum pauio ante adeptus erat^ cum lei domejiicce imp: a pre (Jus ^ non pof- 
fet fine auxilio fuorum^ AJiaticwn bellum juvare^ vkamque regiam dccen- 
ter degere, prmclpes foluto prius tributo^ pro eo bello gerendo pojlea ex- 
Ixcogitato novo cogitato novo veHigalis genere^ ut regem Juum ea inopia levarent^ * idtr^ 
vedigalisgcnere conccjferunty ut qucties quifpiam eortim^ qui pojfejfiones haberent "^ quarum 
ro coi.ce u- ^,^^ ^jp^ dominus^ ante pioreretur qiiam liberi quos fecijjet hceredes v'tgeji- 
b Quarum rex '''^'^^ alter um agerent annum, turn eatenus tarn ipfe ha^res quam patrimo- 
efie; dominus. niutn In potejlate atque tutela regis foret, et ille patrimonii hujufmodi pro- 
'ventus caper et^ quoad hceres ad earn tstatem perveniret : quia apud An- 
glos mvrc majorum pervctujlo co7ifervandarum facultatum caufa^filiusmas 
natu grandior Jit folus lueres, vel filiee Ji mares liberi nulli Jinf. Egit 
rex gratias omnibus generatim pro munere^ ac ut ne id humanitatis in ob- 
livionem iret, deinceps ijiiujjnodi mbilium h^eredum tuteias ut rem Jibi 
valde utile?-,! accuraiijjime Jiifcepit, Std illud beneficium nequaquam ipjt 
nobiiitati pojlremo bmo fuit, quando c<^teri reges qui fecuti Junt, non ha- 
bit a ratione^ quod a principib:is' olitn in Henricum duntaxat collccaiunt 
juijfdt^ ut qui pauper ejjet decentius perfonam regiam per illud fujlineret 
Jibi etiajji perpetuatum voluerunt. Quid, quod ita res cur a ofnnibusjuity 
ut non modo reges, fed reliqui locoriini do?ni7ii in hareditates ncbillum de-^ 
fiivMcrum eodem modo i}ivaferir.t, id quod etiam nunc Jit, et lege ccrta ob- 
fe: "jcitur. Unum iftud injiitutum eji tandem aliquando corrigendum, quippe 
u: od quantum uni vel alter i com modi, tantum aliis inccmmodi affert : Jane 
::a ufu venit, ut populorwn qui bus Jiareditates 'veniunt tuttd^e fcepe a loco- 
rum dominis ad tempus Jicut diHum eft, illormn tutor ibus per auBiotiem 
v:.ndr.ntur, quo Jic JaRo lucro, ab ea cducajidorum f'uerorum cur a vacui 
JiKU (t qui emunt, emunt autem tam mbiles, quam homines novi, Ji modo 
plus diderrnt, ea pnrfertim. de cauja redimant, ut pupillos mbilium fuis 
^ ' liber is matrimonio conjwigent. Idq; fiepijfime fad wit, antequam illi 

^ubefcant, quo fmul vi'vendo^ cum primum per etatem liceaf, urgent e vo- 


Cap. 35. The Court of Wards and Liveries. 191 

luptatum titilht'tone invicem commifcranturt ut nc pojlca^ cum adoUver'mt^ 
jam mntui poUuti nuptras rfpudiare (jucnnty qui fie fcfe ab inmnte at ate 
Itbultnihui Aalecortintes internum non Itominrs^ fed ob virium vifirmUatein 
f>lane homtinciones gip^nunt a major tbus tlfgenrranten. j4lqui nobilitas cum 
/trim is ro damnum jacit lottgr ing ntijjimum quod hominei fiumili loco nnti 
ptT ejufmodi connubia fanguinem cum ea focient^ cont iminentqtie in diet 
fin^ulot ejus vetuflum genus, et pupUli ipji h Jinu matrum per emptimcm 
nepti parum inlerdum honeflis in alitna ilomo injiituantur^ Oritur vel 
/tine res alia indigna de qua nunc toccre Jibet, ijlorum enim conjugum 
gratia admodum modica atiquctics exiftit cum ante atntem^ et aliquando 
contra voiuntatem nobiles fctmimv, lirique plebeis copulati perraro inter 
fe amcnt, Pnrterco et illud, qua^ttum patrimonia nobdium, caufa hujufct 
tuteLe laccrentur a nvois poJfeJp>ribus ; quifuis avarc commoditatibus jTer- 
licntes pecus omne non modo tondcntyfed dcglubunt egregie, ^tque h.c fji 
principum munus, quod regias opes maxime adanxit. 

Herein Poly dor hath erred in all three. For firO, where he af- 
firmeth for the time, that this novum veSHgalis genus was excogitatum, 
and granted to king Henry the third anno domini 12 19. which was 
in the third vear ot his reigne, Glanvil who wrote in the reign of 
H. 2. treatetK of wardfliips due to the king and other lords : to the r jq2 "I 
king in thefe words. Notanduftt tan:en quodjt quis in capite tenere de- Lib.7. cap.o, 10. 
het, tunc ejus cvjlcdia ad dominum rcgcm plene pertinet, Jtve alios dtmi- And Ockham 
nos habeie debeat five non, quia aominus rex nullum potefi habere parem, ^^" ^rott ttm- 
multo minus feniorern, zifc. And he treateth ubi fupra of wardfliips ^''u' JJ' *'- '^^' 
then diie. (which holdeth law till this day) and fpeakcth nothing of ftipsan/livcrka! 
the beginning of them. 

King John in the feventeenthyear of his reign made a great charter, Mattb. Pari* 
and granted concilio baronum^ quod cuflas t\cs haredis qui infra atalem P'g- H6- 
fuer^ non capiat de terra Jueredis wji rationabiles exitus, et rationabiles con- 
fuetudines et rationabilia ferviiia, cthfrcfine deflru^ione et vnflo homlnum 
vdrerum. Et Ji nos com?niferimus cufl ■!' im alicui talis terrce vkecomiti vel 
alicui alii, qui de exit ib^ terr^ illius •♦•5k I bait refpondcre,et ille deflrnc- 
tionem ae cujhdlafeccrit vel 'vajiu?ti, nos ob il.o capicmus emenJam, et tn ra 
commit t atur duobus legalibus et difcretishomiiiibus deftudo illo, quifimiliter 
nobis refpondeant, ficut pnediHum efl. Cufios autem quamdiu cu/loHam 
free habuerit, fufentet domos, parcos, vivaria, fla^na, mokndina, ct ce- 
tera ad illam t err am pertinent la de exitibus terra: cjufdsm. Et rcddat 
h^redi, cum ad plenam a tat em perventrif, t err am fuam tot am iri/lau" 
rat am de carucis, et omnibus aliis rebus, ad minus fecundum quod ilia re- 

1, Where Polydor faith, Ulfro conceffcrunt ut quotiis, &c, he af- i ^. ;;..,... in- 
firmetli that it came from the grant of the fubjeci to the king. ftiiute$.fca.io3. 
The truth is, that all tenures by knights fervice, which lince the 
conqueft dr.weth ward and manage (for reliefe was due before) 
were ei'hcr created and referved by tne king, or before of 18 E. 1. P'liv.^'^r f^ ',, 
quia emptores terrarum ay the fubjefls of th? realm. If by the king, ' 
it is cither of the perfon of the king, ut de co^ma, v/hicli we call wj. K«Ai»-'i t^ 
in capite, oT of fome honour or mannor. If by a fubjei^>, either thck-ng.' 
of h!^ perfon or of an honor or manor. And all thefe te- ipaitoriht 
nures have been created according 10 this rule, cujus eft dare^ ejus eft ^"**- ^^- '• 
dfpm'.:e. And all the lands in England originally i ' 

tiic kii.^, and are holden of him med.^tely or immcd 

3. He utterly miftaketh the end of the creation of tn • 
by k.iigiits fervice, which were origia.uly created for the 

192 The Court of Wards and Liveries. Cap, j^, 

of the realm by his own fubjeds, which is more fafe then to truft 
to foreigners. But hereof you rtiay reade at .large in Littleton, 
{e6t. 95, 96. & 103. and Li. Rub. Mavult enim princeps domejiicos^ 
quam Jiipendiarios beUicis appmere cnjihus> 

This tenure which now is called efcuage, or fervicium fcuti, was 
of ancient time named expeditlo hominum cum fcutis^ as you ' may 
reade in the charter of king Kenulphus, who anno domhii ^21 ct 
regni fui 25 granted to the abbot of Abbandon many manners and 
lands, and referved quod expeditionem duodecim virorum cum' tanth 
called Athclweg, y2-«//i exerceant^ anttquos pontes^ et arces renovent^ ^c. Of all other 
onr. 995. fe,.vj(,gg jjj^(j charges he and his fucceflbrs were difcharged. 

In nomine excelji tonaniis^ cujus nutu et miferatlone a pio patre pra' 
ditus^ ego Ethelred 7 ex fotius inful^e cum confenfu et licentia dptimatwn 
meorum aViorumque meorum fideVium daboy et lihenti animo concede Clofic, 
quandam rurls pailicidam^ hoc efi^ 20 ivanfos in loco quern ruricolce voci- 
/^«/ at yceantun in h^ereditatem perpeluam^ et fejnper liber permaneat 
mtis et tgnotisy magnis et modicis, ad habend* et tradend* qualicunq. va- 
luer it relinquat ob omni tribute ct * fervicio rcgali^ niji conJlruRione pon- 
tis^ et arcis tedijicatione^ et hojiium expeditione. AHum ejl autem hoc mea 
concejfionis donum anno dominies incarnationis 1 00 1 . ^c. 

In the book of Domefday you Ihall finde it thus recorded. 
Sudrie. Epifcopus Baicc^ 

llle qui tenet deWodardo reddit ei 50/. etfcrmcium unius miliiis, and 
in divers other places. And in Domefday mention is often madf" 
of drenches or drenges which is as much to fay as tenentes per fervi- 
cium militare. 

Many others of this kind might be cited to prove that prudent 

antiquity ever provided by refervation of tenure (amongft other 

things) for the defence of the realm againft the invafion of 


Glanvil. ]. 7. All our ancient authors treat hereof. See the firfl part of the In- 

C.9. 10. Ockham flltutes, fe6t. 103. ind fee the Grand Cuftumer of Normandy, cap. 

Britton fo. 162 
b. Lib. P.ub. 

The charter of 
anno dom. 821. 
The like char- 
ter ot'kingEthel- 
red to a knight 

The charter of 
king Ethelred. 

Bracfton I'b. 2, 
fo. 36,37. &Cv 
I part of the In- 
ilitutesfeft. 103 
Verb Chivaier. 

Comming of 

Regift fo. 2. 
Domefday tit, 

[ 193 

m diverfn iccis. 
Mirror cap. 165. 
Bradon lib. 2. 
fo. 36. a. 85. 
Britton fo. 162. 
28. 95. 
Fietll. I. ca. 8. 

33. &c. fo. 49. 

You have heard before de regali /ervicio, before the conqljef^, 
but that regale fer in civ.m (which was knight fervice) drew unto it 
relief, but neither wardfliip of the body or of the land, as hath 
been faid. It is true that the Conqueror in refpeft of that royall 
fervice as a badge of the conqueft took the wardfliip of the land 
and the marriage of the heirs within age of fuch tenants, but this 
extended not to the tenures of the fnbjefts by knights fervice, as it 
appeareth bv Bra^lon : Dicitur regale fcrviciwn^ quia fpeilat ad do- 
minum rege^n, et non aliirm^ et fecundum quod in conquejlu fiut adinven- 
turn ; et hujvfmodi ferv'cla pci/ijlvuntur ration e tenementorum^ ef non per^ 
tenemejitis pro^jeniunt^ nt J2 dlcatur facicndo indcforin- 


Ubi fupra. 

The tenure (as 

before it appear- 

eth)wa5 not then >«^''?^7;?, y^/-^^^ 

invented, buc fecum fervicit.'?n^ vel regale _f'rvrciu!n^ Jive fcr-vicium domini regis^ ^c. 
So as the Conqueror provided for himfelf, but other lords at the 
firft by fpeciall refervation fmce the conqueft provided upon gift 
of lands, for thenifeives ; Regis ad excmplum totus co?nponitur orbis^ 
wherein that which we had from the Conqueror we freely confefTe, 
and that \A'h;ch the Normans had from us, we have truly related 
in other places. 

The eood king H. i. fon of the Conqnerour finding that the 
wardfliip of the body and kinds of his tenants by kn'ght fervice 


the fruits oi the 
'tenure of the 
king, viz. ward- 
ship and manage, 
whicS Vv-as Brac- 
tons meaning. 


35. i he Court of Wards unilLivcric-. ")3 

cxa<f>cd by his father was both grievous and unjuft, by iu. i;*.... 
charier nnw frimo rr^i /u»^ recitinj^ QrmI reirnum /vum o;prr/lu/n ctat 

itt': ' '^ (anil particularly /rOT/wr/)r//r/iyi/V tlid grant 

(i\ : Q.';ot//i uxor cum liber it remanfcrit^ JoUm fuam 

(t .m corpHi fuum U^itimr fervnhit^ tt ram non da- 

iit rtt^ €t Icrrce tt lib if or urn cujlos crit Jive uxoryfivt 

olius frcptKLiuicf., ^'c To be (liort bv t!iat golden charter, omti'S 
malas confuetuJineSy qutbui re^num An^Vue invtjle opfrimdatur^ inde 
/khflulity ct la^am regis Etlovanli reddidit. Thtfe were called king 
Edwards laws, not that king Edward made ihem, ffd quia ex tribus 
legibus^ fc. Anghrum^ Dvrrwti^ et Merciorum unnm U?em contmunem 
cdidlt. FideRanulpkCeftricvf, Lib. i. cap. ^o. 

And where foiiie have obje(5ted tiiat wardfliip is a badge of fer- 
vitiide, for that in the writ of nativo habendo, one of tlie explees 
(amongft others) is capiendo redemptionem ab eoprofdiis et filiabus mari- 
iandis et aliis villanis fcrvicils. That is, taking rai\foine of him for 
the marriage of his fons and dauojhters, and other villain fervices. 
To this it is anAvered, that the king for manage of his wards tak- 
cth no ranfomes, but fuch moderate fums of money, as in refpeft 
of the quality and ftate of the ward, he, or (lie, all circumflatices 
confidered, is able to pay, and in regird thereof, he hath the pro- 
teflion of tlie court of wards during minority : but if ranfomes 
lliould be taken, it fliould not only be againll the right inliitutioa 
of wardfliips before remembred, but alfo a badge of fervitude: and 
therefore by the Ibtute of Magna Carta, of H. 3. cap. 4, 1;, 6. 
(feeing the crown had a long pofTeflion of the wardfhip of the 
body and lands of the kings tenant by knights fervice) it was pro- 
vided, firft, that the king or his grantee or committee fliould not ^ ^ ^ . 
take of the lands of the heir * but reafonable iiTues, reafonable a^t^^^{J"j^' 
cuftomes and reafonable fervices, without deftru^lion, &:c. (and pg^t^^ that ic 
all wnreafonable and excefiive things are againft the common law, might be ob- 
exceffi-Mm omne in jure reprohatur.) Secondly, fhall keep up the icrvcu. 
houfes and other inheritance o^ the heir, and deliver to the heir all 
his lands flored with ploughs and all other things (woods and all) 
at leaft as he received them : whereby it appearerh, thai tlie value of 
the marriage fliould be fo reafonable, as the heir lliouid not at his 
full age be enforced for payment thereof to fell either lands or 
goods. Thirdly, that if tlie heir be maried, tkit he be advanced 
thereby, and not difparaged. 

John earl of Oxford being the kings ward maried without the i j l. 6., nu. 19. 
kings licence, for the wliich, both for the contempt, and for the [ ^94 J 

duty to the king for fo marying, he was fined at three ihoufand 
pounds, which was not the value of his lands by one year : and yet 
he petitioned in parlianient to be pardoned of part thereof, which • Rot. finlam. 
was thought reafonable. And certainly the reafonable ruing of 14H. 3.111.9. 
wardfli'ps of the body and lands is both according to the laws of H"cof fccM.r.^ 
the realm, and a mean or mcreale or the kmgs revenue. \i\z, 16 H. 3. 

As to the third : there, were of ancient and latrer times mafiers or 0/ Hubert Jc 
keepers of the kings wards for the kings beft advantage, and Hie Bur^o, & Ste. 
profits and revenue thereof were anfwered in the kings co.irt of P^=" Sfgr^ve. 
exchequer: as takin;^ one example or two in (lead of n\-nv for fi!"; *!!'* "^ '**** 

, j* • ° * ' nnium, anno 

both The pomts. ^ 3 E. i.m.4. rot. 

♦ Rex commijit Randulpho de Nova villa etifcopo Co, .pfinvo par. ^ E. i m.33. 

dc $egrave cujlodiam omnium efchaetcrum fucrum qui accidunt ^rr toiurn rot. finiurr. 

re^num ^S- t. i. .u. 14. 

i 94 The Court of Wards and Liveries. Cap. 3 ^. 

re^num Anglice^ tarn in nvatdlx^ quant in otnnihns aliis efchaelis quee regi 
accidere poJ/t?2t^ et refpondend^ inde ad fcaccarium. 
a Rot. pat. a See the ftatute of 51 H. i.Jiatut' de fcaccario. Sherifs fhall be 

a5H. 6. partez. keepers of the kings wards, and anfw^erable for the iffues thereof 
^' ^^' in the exchequer. 

*> See the firft ^ What care there was of ancient time to pfeferve the tree of 

part of thelnfti- pious, honourable, and profitable tenures of the king, and for pro- 

tutes, h. 2. j>ir £j. efpecialfy tenures in capife and by knights fervice, and that the 

king lliould b^ truly anfwered of wardlhips^ and other fruits and 

profits due unto him by reafon thereof, it notably appeareth by the 

articles inquirable by the juftices in eire, and by our ancient books. 

* Capit. Itlnerls * De efchaetoribus et fuhefchaetorihus in fe'tjina domhii regis facientibus 

in Vet. Mag. vdjriim^ 'vel deJiruHionem in parcis^ hofcis^ wvariis, vel ivarrennis infra 

Bradt lb * (i{ftodias Jihi commlJJ'us per dominwyi regent^ quantuni ei de qiiihus^ et a 

1 1 6. b. ^^^ tempore. Item de eifdem qui occa/ione hujufmodi ceperint bona defunc- 

Britton io. 28. toruniy vel haredum in manu domini regis injujie^ donee redimereniur ab 

Fieta ]. I. ca.2o» m, et quid^ et quantum pro hujufmodi redemptione^ ei quid ad opuifuum 

inde retinuerint^ et a quo tempore. Item de eifdem qui minus fufficienter 

terras alicujus in favorem ejufdem, vel alterius ciijufcunqiie cui cujlodid 

terrarum illarum dari^ vendi vel concedi debuerit^ in deceptionem domini 

regis, et ubi^ et quando, et quid inde ceperint^ et a quo tempore. Item de 

eifdem qui prece^ precio, vel auxilio^ vel favor e confenferint, vel coffulue-' 

rint quod cujlodi^e domini regis vender entur pro minor e precio, quam vendi 

deberentfecundnm verum valorem, velmaritagia ad dominumregemfpe^an- 

tia. Etf aliquo modo concelaverint cuflodias domini regis, vel maritagia 

heeredum, vel tenentium de rege in capite, vel maritagia dominarum, vi- 

duarum maritatarum fme licentia regis ^ et Ji quid propter hoc ceperint et 

quantum, et a quo tempore. Item de hiis qui refervaverint ad opus pro- 

priuni cufodiani, vel maritagium per leve precium^ Jive per conceJ amentum 

faBtim verfus doffiinum regem, et cujufmqdi damnum rex inde habuerit, et 

a quo tempore. Item cujufmodi feifierint terras, et per quantum tempus 

s eas in manu domini regis tenuerint. Item de terris captis in ?nanu domini 

' regis, qua capi non debereut, ct poflea refcitiitis per pra:cepfum do?uini 

regis cum perccptis, utrum percepta re/iituei hit ad jnandata doinini regis, 

vel non. Et de omnibus pradi^is faBis tt com?niJis infra viginti et 

qu'inqu^, annos proxime pradidos pradicii jufticiarii fe inlromittant. Et 

omnes illi qui fentiunt fe fuper hils gravatos^ et inde conquer i valuer int, au' 

diantur, et fiat eisfuper hoc jujilcia, et ipfe juficiarii pro hiis qu£S domi' 

num regem cont'mgunt diligenier inquirant, &c» 

Vet. Mag Carta Primo et principaliter inquiratur defeodis militum, et advocafionibus 

160, 161. Inter, ecclefarum ad dominion regem pertinentibus, viz, quot funt,et quce funt 

capit. Efcaetrias. ter.ementa, et qvantitas tcnurce, et per ques fervicia. 

\ IQ? 1 Ite^n, ffeoda ilia integrafint vel demembrata, non habendo refpefiian 

ad tempus. Itanfi demembrata, per quern, quando, cui, qualiter, quo- 

modo, et quantum valent per annum. Itemfi iradantur alicui ad termi- 

num vita, vel annorum, fine licentia regis, tunc cui, quando, qualiter^ 

et quomodo, et quantum valent per annum. Et fi tenentur pet medium^ 

per quern jnedium. 

Item de tenementis qu^e tenentur de rege in capite, vel teneri debent, 
Ji aliquis faciat fe medium inter dcminum regem, et verum tenentem 
fuum, tunc quaratur iibi, quando, qualiter, et quomodo, et ad quod dam- 
num regis, velfi modo tenurain mutavcrint. 

Item de aliis qui tenent de corona per mtignam ferjantiam, vel par^ 

vam, antiquum dominicum do?nini regis, focagium^ fee di firm am, vel per 

aliquod frvicliim, fi iidem iensntes a!iqit:d aliena-vcri.'it, vel demembra-. 

8 vcintf 

>-,.;. 195 

%cnnr, cu:, v...-- . ■>, y.'. .-; - J-v.- jnn >!.: i.^r^ua 

honere, five Jc crort/ij et , w, qtii <h rcf^e te- 

t:ur' ' ;."/, )r::ravfrit ttnuram fnamj 

I .' ^jlltcr^ et quomcJof ct ad quod 

::t Vfilet per annum, 
. , Jive aliquod fer^vicittm^ 
J.u u.i^u.z^ L\. .rnino rr^i dtb'.tas^ tunc quit, qunr.doy qual'itevy 

et quomoMy et . ./, et qucm reddUum^ et quas ccnfuetudines^ et 

qu/e tencmcnta tcu^nt Jc quibus debentur hujufmodi fcrvlcia^ ct quantum 
valmt per antiu;ti^ et ad qu d damnum regis- htrufmodi concelament(9 

Itemy dc Imtredibus quorum cujlndia et maritagitt^i pertinent ad doml- 
t!um rtgrm^ et doMtnus rex ea habi'Crit^ qunndo d. beret habeic. Et Ji 
aliquis kujuf,r:otu h^redum mvrrjfus fuer':t fine author it ate curiae et abfque 
Ic^itima tetaiii fua pr'Jfatione Ji infra atatem, et fi phn^ <etatisy abjque 
faciendo re^i fr^magiuiiy vel aliud Jcrvicium quod ei deiet. Et tunc 
quis fit tile haresy quo tempore iniravit^ tt pcfi mortem cujus^ et per quod 
Jcrvicium ilia hceredltns teneniuur tt quantum inlet per annum. 

Item dc 'viduis fimilitcr qunrum maritagium perthut ad reiem^fifie mcL- 
ritaverint fine licentia regis, cui^ quando, cujus confenfuy et ad quod dam- 
num rcgiiy ct quantum ttnementa valcnt qucr tenent in dAem dc primo ma- 

Item de he red: bus qui dtbcrent eJJe in cufiodia regis ^ et quis cufiodiam 
ufarpa'^etit fuptr legemt et a quo tempore, tt quantum t^vin'n'n quce te- 
tient lalent per annum. 

' Item fi aliquis hqufmodi h^redum cujus anicctjj^r <.\. , ^ . .. ;:.iit in cj- 
pite, five de aliquo luvrcde in cuficdia regis exficnte, maiiiatus fuerit 
fine licentia regis, tunc ciii, quando, et per cujus conjenjum, ^z ^" "•'••• 
/c/7vr ilia: vi.'ait per annum, et quantum cept pro mar'tagio. 

Item fi domiriica teme domini regis in ijio lunpentngio funt m icu-. 
fintu ficut eJJe debaent, vel fi tiahuniur a'l finnam, fi dimittantur fic- 
air.dum vaLrem annuum earun k n, et fi ciifijdcs, vl firmarii vafium 
vel diflruSlionem. venJiticnem feu exilium fecerint in eifdem, vel in let' 
lis exifitntibus in manu dcmih'i picdiam^ vel alio modoj 

quit, ubi, quando, ^c. 

Yea fo precious was h'iimeclwrc icr,i:rcs of the king, as you read 
in the parliament roll in ;8 E. i. in theie words. 

GUbertus de XJmphrevill petit Ucenticm quod pojfit fe;jfare Gilher- L ' 9^ J 

turn filium fuum fri'r.ogenitum,, et Mavgar. uxorcm ejus de mansrio Juo ^ot* P". i S E. r. 
de Overton, tenend' de ipjo Gilhcrto patre durante tcta vita ipfius patris, -^^^u.^^.'. 
ct pofi ejus decejfum de capilalihus dominis feodi. Refpovs. Rex nm vuh ^f j^his 
allquem medium. Idto ncn concej/it. 

By the ftatute of 14 E. 3. if the licir o, r;s tenant 

chief, &:c. be fomui within age, and the next iiiciida of the heir, '""^ • 
towhom the inherit;;nce canm^t defcend, fliall come and offer the^ 
to take the faid lands, yetlding the value to the WvAg till t!;c age of 
the heir, us far forth as other will yeeld without fr.iud ;. by accord 
between the chancelor and the trcafurcr, they fhall have commif- 
fion to keep the faid lands by^^ood and fulficient furcty till the 
age of the faid heir, and to anfwcr the king the v.'.luc. Jn this aft 
this treafurer is iirendcd of the trcafurcr of ih.e c\cl.c(;;icr. See 
before in the chapter of the court of exchequer. 

Amongft the petitions of the commons, ihcv } : he fiM •'' 

Hatute of 14 E. r. may be obferved, which the kidggranU J^; ^^<^«- ?"••;• 

IV, Tnst. ^ (^ . ^^-i^u-iiJ^- 


* Ro. par. 22 E. 
4. nu 6. not 
in print. 

IbiJem nu. 17. 

4 H. 7. ca. 17. 
A generall law. 
Note thefcverall 
penningsof thefe 
two feverall a6ts. 

Dier, i ^ 2 El. 
fo. 174. b. 

Kevlway 7 ,H. S. 
176. between 
Conifby and 
for the heir of 


Lib. 4. fo. 55. 
&c.Vid.2 £. 6. 
cap. 8. Li. 7. 
fo. 45. Li. 8. 
168, 169. 
See the 2. part 
of the In(h cap. 
the (latute of 
2 E. 6. cap. 8. 
Sec 50 E. 3. 
nu. 184. 
See hereafter 
I H. 8. cap. 12. 
This proclama- 
tion we have. 

See the ftatute 
of I H. 12 
In ratifying 

[ 197 ] 

The Court of Wards and Liveries. Cap. 35^. 

* It is provided by aft of parliament in nmio 22 E. 4. that 
where fiindry of the kings tenants holding of him immediately, as 
of his duchy of Lane', by fundry recoveries, fines and feoffments 
in ufe, defeated the king of wardfliips of body and lands^: it is 
enafted, that the king and his heirs fliall have the wardfhip and 
cuftody of the body and lands of every fuch perfon being within 
age, to whofe ufe the fee fimple or fee tail of any hereditaments {o 
holden fliall grow as heirs by the death of any of his aunceilors, 
and if they be of full age to have relief notwithdanding any fuch 

An exaft provlfion is made for writs to be granted out of the 
chancery for the embefiling of any fuch heir upon purfuit of the 
atturny of the duchy. 

By the flatute of 4 H. 7. it is provided that the lord of cejii que. 
life,, no will being declared, &c. fnall have a writ of right of ward 
for the body and land, and the heir of ce/ii que rife being of full age 
at the death of his aunceflor lliall pay relief. And the heir of cefu 
que ufe fhall have like action of waft, as if the aunceftor had died 
feifed, &c. 

Upon this ftatiite, a cafe that had in Mich, i & 2 Eliz. depend- 
ed undifcufled thirty years, as the lord Dier reports, but not in the 
court of wards, (for that court had not then had fo long continu- 
ance) but in the chancery and the court of wards it had fo long 
continued, though in 7 H. 8. it had been refolved by all the judges 
in the exchequer chamber, that cefii que ife of lands in fee by 
knights fervice in raplte^ and of lands holden of another lord in 
focage dyirig feifed of the ufe of both, his heir within age, and no 
will by him declared, that the prerogative fliall hold place : which 
refolution if it had been publiflied in print, the tedious and charge- 
able fuit had not fo lono; continued. 

Now for traverfes, Morfirans de droit, &c. to be relieved again ft 
offices found for the king, you may read at large in our books, and 
efpeclally in the Sadlers Qafe in the fourth book of our reports, 
which being the birthright of the fubjeft for his relief againfl a 
falfe ojffice found, cannot be denyed upon juft caufe fliewed, but 
not to be ufed for delay. This was the offence of Sir Richard 
Empfon and Edmund Dudley privy counfellors to king IT. 7. and 
mailers of his forfeitures (a new and unaccuftomed office) who 
caufing fecret and falfe offices (as fliall appear hereafter) to be 
found, the parties grieved were denyed to have their traverfe, Mon- 
' firans de droit, &V. which king H. 7. a little be'ore his death being 
far gone into a confumption, with great remorfe of confcience 
amongfi: other things repented, and by proclamation under the 
great feal in print (amongft other things publiflied in thefe words. 

And that none of his fubjeds ne make no doubt nor difficulty 
in all caufes leefull to make traverfes, for his highnefle will ex- 
prefly, and ftraightly chargeth and commandeth his chancelour 
and treafurer that they not only admit fuch traverfes but alfo grant 
the ferms, where the cafe flial require, according to the true courfe 
of his laws. 

Hereupon many men were admitted to their traverfes, and many 
on the other fide were without remedy: for by the pra6lice-of 
Empfon and Dudley, many were not onely denyed to traverfe, but 


tnp. 25* The Court of WarJs and Livcrics. 197 

inforced upon fuch falfe offices to fiie out their gcncrall liveries, 
wIitTcby they were concluded, and could not by Ivm Ix pr|.i)ittcd 
to their trnvcrfe. 

Kijif^ H. 8. in the firft ycnre of his reignc ii.:^;. *...^ to give , jj g „ g 
r* !n (iy .: ;ainft fccret offices, dolh hy a^ of parliament j^rovide, ^H.i.c»p.%, 
*• That every etc hea tor and commiffioncr fliall fit in convenient 14E. 3. cap. 13. 
and open places, according; to the (larute heretofore made: and 36E.>ctp. 13. 
that the faid efcheatoi-s and commiffioners (hall fuffer every perfon V^\ui. V' 
to give evidence openly in their prefcnce, to fuch inquefls as lliall curemcnt oiT 
be taken before any of them, upon paine of xl. li. Empfon arid 

And by the preamble and other parts of tins a<ft of t H. 8. the I^udlcy ''n.-cj 
finifter and unjuft deahng of the faid Empfon and Dudley, con- J^^t^^^r^J jn 
cerning the finding of officers, are pourtrayed out, whereby the anTiren'wcre 
kings fubje(^s then of late had beene fore hurt, troubled, * and denied to give Jn 
MTonged, and fome diflierited by nine other wayes, i. In cauf- evidence for 
ing untrue offices to be found.', c. In returning of offices that F-^f of their 
never were found. 3. In changing of the offices that were tnily ^|8^^'*"«* 
found. 4. That efcheators and ccmniilTioners were men of no a see before cap 
livelihood, but indigent and unworthy perfoii?, ready to ferve Of the high '' 
turner-', and having nothing to lofc, or to make fati.-,ftn5lion to court of par- 
the party grieved. 5. That jurors were returned for the finding ''ament. 
of offices of no hability, or behaviour. 6. That the efcheator or 
commilTioncr, when the jury were agreed of their verdi<5l, would' 
not receive the fame, but therein ufe dclayes. 7. TJiat the clerk 
of the petit bag, &c. would refiife to receive, and file fuch in- 
quifitions as were found and offered to them. 8. The like of 
the officer in the exchequer, of offices returnable into the exche- 
quer. 9. The clerke of the petit ba_9: would refufc to tranfcribe 
the offices, Sec. into the exchequer. For all which, and the 01 her 
two before named, remedy is provided by this ac^, as by the fame 
appeareth. At the fame parliament for the redrelfe of parties i h. 8. cap. i» 
grieved for fuing out of liveries, another adl is made, intituled, 
An a6l concerning untrue inquiutions procured by Empfon and 
Dudley, in thefe words. 

Shewcn -to your difcreet wifdomes, that where divers and 
many untrue inquifitions by the procurement of Richard Emp- 
fon knighr, and Kdmund Dudley, have beene had and taken 
within this realme, as well before coinmiffioners afllgncd by 
letters patents of the late king, king Henry 7. as before his 
efcheators, as well by vertuc of writs of the faid late king, as 
by vertue of their o.^ce, by the which inquifiti -ns fometime 
parcell of the faid lands contained in the faid inquifitions, and 
fometime the whole lands there founden holden of the faid late 
king in capite, where in troth the faid 1 inds contained in the 
faid inquifitions, nor no parcell of them was holden of the faid 
late king in Capite, ne of any of his progenitors : to the which 
inquifitions the parties then grieved by the fame, could not, 
nor might not take their traverfe to the fame according to the 
law of the land, but were inforced and conftrained to me their 
* livery of the fame out of the hands of the iaidlate king, • Th: ;.• - 

CL2 Whereby ^,^:^-: 

*I98 The Court of Wards and Liveries. Cap. 35. 

Gcneraiilivery whereby they wcre, and be ^ concluded to fay, that the faid 

a M'i!ih^*7^'r"acobi ^^^^^ ^6 holden of the king in chiefe, to their great lofTe and 

r'-toived by the hindrance, vvliere in truth they were not holden of the faid 

uv^ chiefe juf- Jate king, ne of any his progenitors. Wherefore be it ena6t- 

cSbaitn'^tnd ^*^> ordained and eftabliihed * by the king our foveraigne lord, 

the court of the lords fpirituall and temporal!, and by the commons in this 

w.irds, 5n Flol- prcfent parliament aflembled, and by the authority of the fame, 

t! Thac'^the fu- ^^^^^ every perfon and perfons having pofTeffion of the faid lands 

it)g of a generall Contained in the faid inquifitions, or any part thereof, may 

))\ery concJud- be admitted to have their travcrfe to the faid untrue inquifitions, 

l)e"'tt\^-erretT "^^twithftanding any livery fued in the time of the faid late 

by this aft of i<^ing, king H. 7. And that it be further ena6led by the fame 

pariiament, but authority, that any livery fued of the fame in the time of the 

ctherwife It IS of ^^-^ y^^^ kino^, ne any thincj- contained in the fame livery, be 

y tpeculi hvery, i r r l ° r r u i • 

fur that, as tq any concJulion alter the courie ot the common Jaw, or m any 

the tenun^, is wife hurtfull or prejudiciall to anv perfon or perfons, that fhall 

hu^.,ut duitur. i^^ppg^j to tend their traverfe to the faid office, but that they 

ciiuion or cftop- and every of them mail be admitted to their traverie to the 

peUontinyeth f^uJ inquifitions, and to have like advantage in the law, as 

li"" of 'ihe^hdre ^^^"c^^ "° livery had beene fued of the fajne in the time of 

that fueth the the faid late king, and this at the reverence of God, and in 

geiieraU livery j the way of Charity, &c. Provided alway, that they, or any 

for jurors are ^^- ^j^^^ which fQall tend their traverfe to any of the faid in- 

t.,fei;u!i.:c>}ri\^nd quilitioiis in any manner and torme as is atorelaic, mail not 

aie not bound be rcitored to any mean iffues or profits of lands and tene- 

"' T^iat^y fuing "^^"^"s comprifed in the faid inquifitions. 

ot livery, and 

the dtatii of the heire, the office Is executed, and hath taken his full efFe£t, and therefore theeftop- 
pel expirctli therewith, and after the (office cannot be traverfcd. Vide 46 E, 3. fol. 12. 44. AiT. 
■p. 2<. Noid diBuin Moivbrayy tb'uie-.-n. Si un tient de roy, &>:. i H, 4. 6. 33 H. 6, fol. 7. per Laicon. 
Obltrvewel! the remedies provided by tnis particular ad, &c. whereby che comnnon law is affirmed. 

S-ethefirft part Novv touching liveries whTch in thofe dav$ were generall, what 

fJif^-^i^'-^'ee"' ^^^''^^ ^f troubles the fubjsas fuffered for miffing of Hvery in 

beforJta'p.'of refpe»5l of pretended omillions, and the like, what .charging the 

the high court fubje^ts with vahies not found by anv office, nor appearing by any 

of parliament. melius inqnbenJwn wlih mean rates where none were, or for longer 

time, then they were due, and the like, and thefe not recovered by 

courfe of law, but fending for the parties by purfevants, and by 

their awfull countenance mixt with menaces and threats, drew 

them to compofitions : which, and other like opprelfions and in- 

juftice, filled king li. 7. cofers ; for by the clofe roll in anno 3 H. 8. 

it appeareth, that the king left in his cofers fifty and three hundred 

thoufand pounds, moft part in foreine coine, which in thofe dayes 

was not of leift value. Notwithftanding king H. 8. at his parlia- 

5 H. 8. cap. 7. ment holden in anno 5 of his reigne, cap. 7. moved for a fubfidie, 

and was denied it ; whereupon an aSt was made for taking out of 

generall pardons, as a meane to bring money to the king. But I 

perfwade my felfe the reader will inquire what became of thefe two 

wicked men, Empfon and Dudley. The anfwer is, that firft they 

were feverally indicted as followetb.. 

yurafores pra'/evtant quod Richardus Empfon nuper de London miles^ 
nuper confdlarius excellentifimi priticipis Henricl ?iuper regis Anglia fepti-^ 


Cap, 25' The Court of Wuiu^ .mu ]^ivwj<.>. -frgS 

■"', lO. i/.'C M::iiy rtnno rrj^n: ffiVii nuper rrgis vicr/tmo, ac divtrfu vi- 
i'^us antra (t f>cfira aMtei Lonu'criy rjjV. Deum f>r^ ocuUs non habtns^ 

ffii ut filius - ' ; hnoirm^ tti^nitatem^ et f^offt^ritattm 

i-fli nuper ' '.Z'''/"* ^^J^^'*^ minime vakre^fij ut 

r->'- — r y y\g'!i aiViiibet'e * uiuk mn?r"-' ♦ Am, i-, 

fecuntlnm ejus voluttiatrm 
., igvtn Anglue fubvertns^ ( ,n/rr [\, 
:nno a uti London ittparacli'ia et ward' Ai 



Ad traver/ias 


ir. ■ij:\<:j.rj IS vi'j ;j:t''m-'St ct cjjicia de intrujiombus ft nlie- 
de mancriis, ten-is^ ft tmementis^ dverjis ligeis ipjius nuper p ic„ 
\ ( tnvcttin piocuravit et excltnvit^ quod I'fi r.ianerio^ terms et tene- \\(.^. 
'tenia in inauifuiohibus illis fpcaficai* dc doni'nio yff!^r in capite vei aliter &c- 
■ ', cum ita non fuit, ac pojiea cum didi ligri didi nuper regis ad 
■>urs illns fie fa^* traverfins in curia ipjius nuper regis fecund um ^"^,„j po,, p^,. 
hre et allegare vo'utfftnt^ iidem ligei ad tr aver fias Idas tuifTcnc, 
'''./, ffd fe dibit's et legiiimis traverfiis ad oficia pr^r- 1 1 qq J 

. . - •-:•.•> et retar davit ^ quoufque ipji cum di3o Ricardo di- 
/. / . ^- .• it :.: rtablks f.nes et rcdefu'-tifmes^ tarn pro commode ip- 
./ r.upcr ^igis, quani pro fingulari comimdj ifjjus Ricardifecer*, in mag- p,.o (inp)lirt 
\im depaupcrationem eontndem ligconim. Et quod pr^^dlSlns Ricardus ci-i.m .j> ipfus 
^/V?' die et avno in parochia et vjarda prcediSl\ ac diver/is vicibus antea Ric udi. 
/ po/iea^ diverfos ligcos di^' nuper regis de di^o domino rcge diverfa ma- 
Oy terras^ et tenementa pkr fervic^ milit^ tenenf\ et mat* antfcejfor* 
Juts ipjis infrn es totem exigent* ^ et in cuflonia di^' nupH't regis rat tone 
tfuvrje fuce^ cum ad eetotes hzitimas pnvenerunt^ et debitam liberationtm 
maneriorum^ t,rrarunj, et tenementorum fnorum fccundum farmam it Tegem 
An^liie^ etc Jesundum curfum cancdlaria ipjius nuper regis profequi vo- Ad debitam M* 
liijjenty ad hoc recipi ncn potuijjenty fed ad hoc faciend' lotaliter ne- berat-onem aJ- 
gat' et exclus' futrunt^ quoufm itfi cion pradi^' Ricardo diverfas mag- "'Ijjl' """ F°" 
r, as et importablles fines et redemption? s^ tarn pro commodo ipfus regisy 
quam pro ccmmodo ipftus Ricardi fecer\ in niagnam depauterationem eo- tj^j xtfi\\.\c rf 

r'.ndem ligeorum ejufdem nuper regis. (And the coneliifion of the in- th? i'-t'> 

iliciment is,) Per quod plures et diverf populi didii nuper regis hits gra- cor.. 
i\im:nibus et iniuftis extortionibus muitipiiciler hrquebantm\ intjntum ^''":. 
ipr.d populi diiHt nuper regis ve^Jus tpfum regem multipltciter 'w*''"- *gr•,cvancc^, ao 
v.urahanty et malignabant in magnum p'riculum ipftus nuper r^"- ' worthy to h ■ 

is regni fui AngVue^ ac fubvcrfonem kgum et confuetudinum ^'«/?/(f/« read, bu: cnn- 
■;rW. crn«nottUc 

_, . . , .,..,.« .... /• . 1 p matcrr in 1> > 1. 

Tn:e It IS, that in this indiament (proditoriej was tiled biit^for' 
.? -oravation, and as a preparative to oreater oiFences, for in tl:e qui inn-h.i , 
lame yeare thty were both indicated of high treafon both by the cor.m <-r • 
common law, and a<fl of parUamenr, and in the 2. yeare of H. S. 
they loft both their heads. And albeit in fonie refpe<^s the fpecial: 
livery is for the benefit of the heyre, yet the fees and diarc^es are 
lo great, and the bonds and covenants, &c. (o many, fo intiicate, 
and dangerous, as it were worthy to be redreffed, for the eafe and 
quiet of the fatherle^Te, and widow, (being no benefit to the iiing, 
but to fill the purfes of clerkes and officers) by authority of parlia- 
ment ; and the rather, for that fi)eciall liveries were of ancient 
tiir.e, as fimrt as the charges thereof; whereof you may read e a 
notable prefident, when wardlliips and liveries were in their cradles, 
which followeth in thefe words. 

Richardus Dei gratia rexAnglitSy dux Normar.niry Atn/'tiini^y cttmn 
hidfgavitt^ archiepifcopisy epfcopis^ abbot ibuSj comitiluSj harwibus^ ^*'> 
0^3 ■ulliciariii, '*'' 

199 '^^^ Court of Wards and Liveries. Cap. 35. 

Ju/Iiciariis, vicecofnitihus, et omnibus ballivh^ et fidelilm fuis^ ad quos 
* Nota, concef- pr^fens charta pervenerit^ fahtem. Sciatis nos * conceffiJJ'e^ et prafe?itt 
fP Is a fure charta noftra confirmajfe dikfio et fiJeli noftro ^ Galfrido filio Petri, et 

wor momnem Beatricia de Sayeo uxorl ejus, tanquani jujio et prophiquiori h^eredi, to- 
will anfwer to a ^^^^ terram comitis ^ IVilllelmi de Mandevlle, qu<^' ei jure hcereditario 
livery. pertinebaty cu?n omnibus pertinentiis, et libcrtaiibusy et liberis confuetudini- 

t> This Geffery busfuis. Qiiare '■^olunnis, et firmiter pracipimus quod pr^ediBi Galfri- 
Fitzpeter was ^/^^^ gf Beatrix uxcr fua, et Juergdes eorum habeant et teneant de nobis tt 
tice of Endaivl' ^'■'^^^'^^^^^^ noflris tot am pradiBam terra?H cum pertifientiis fuis ficut pra- 
'^ Til is William diHus co?nfs lyUliehnus de Mandevile eant melius, et liber ius, et honor' fi - 
de Rlandcvilc cejittu:, et integritis^ et quietius habuit imquam et pojfedit, in bofco, et 
was earle of piano, viis, /emit is, pratis, pafcuis, pajluris, aquis, vivariis, Jiagnis, 

'^^' pifcariis, nioJendinis, turbariis, in advocationibus ecclejiarum, in cvfto- 

diis valeBorum, et donaticnibus puellarum, et in omnibus aliis locis et aliis 
rebus, Hiis t;Ji:bus l^a'.tcro Rothomagenji archiepifcopo, Johanne Ebo- 
r 200 1 racenf. epifcopo, Rogcro de Pratcllis dapifero nojlro, Richardo de Kanvile, 

Bertram de Verduno, Radulpho fillo Godfredi earner urio noflro. Da- 
tum per manum magilhi R. mali catuJi cltrici 7ioJlri, anno regni nnjiri 
Jecundo, xxiij. die Januarii apud Mejfanam. 

Now are wc arrived at the faid ad of parliament in anno 32 H. 
8. wherein, and in the ftatute of 33 H. 8. befides the expofition 
of the feverali texts, we will obferve what alterations thefe two a(5ls 
have made. 

Ordaineth, mahth, eJlabliJJieth, and ereSleih a court, &'<:,] Herein 
three things are to be obferved. i. That this new court could not 
be erected without an aft of parliament. 2. That when a new 
court is erefted, it is neceifary that the jurifdiftion and authority of 
the court be certainly fet downe. 3. That the court can have no 
other jurifdi6tion, then is exprefled in the erection, for this new 
court cannot prefcribe. 
^^{k'^' VsiT^ Pafch. 6 Ja. the cafe betvveene the king and the bifhop of Sa^ 
buries cafe ^ ' ' lilbury, referred to the two chiefe juftices and chiefe baron, by the 
lords of the honourable order of the garter, was this. King E. 4, 
by his letters patents in French, bearing date 10 Odobris, anno 15, 
of his reigne, reciting, that where there was no office of the chan- 
celor of the garter, that there fliould be fuch an office of the chance- 
lor of the garter, and that none fliould have it but the biftiop of 
Salilbury for the time being : we will and ordaine, that Richard 
Beauchampe, now bifnop of Salilbury, fhould have it for his lile, 
and after his deceaie, that his fucceflors fliould have it for ever, 
And amongfl divers other points it was refolved unanimoufly, that 
this grant was void, for that a new office was ere6led, and it was 
not defined what jurifdicfion or authority the officer fliould have, 
and therefore for the incertainty it was void. Which being re- 
ported to the lords, they were well fatisfied therewith, and there- 
upon the office was granted to Sir John Herbert the kings fecre- 

'Accintofrecoyd.'\ Where it is to be noted, that albeit the pro- 
ceeding in this court be in Englifli, yet it is a court of record by 
exprefTe words of the ad. 

And ^lall have clfo a feale, ^c^ This is alfo necefTary to a 

That all icardsy ^c.'\ This claufe extendeth as well to the coun- 
ties palatines of Lancaflcr, Chefler, and Durefme, as to any other 


Cap. 25' The Court of Wards and Livericj. 

tile parts of tl. ;lmd, but in fcvcrall manners. For 

as to the wards wiiliin the realm of Rngland (out of the faid coun- 
ties palatines) the writ for the Hnding of the office, &c. illueth out 
of the chancery of Knj^land, returnable in the chancery of Eng- 
land. And as to the wards \n the counties palatines of Lancaftcr 
and Durelme, the writ likewifeiirutth out of the chancery of Eng- 
land, but is returnable into the chancery rtfpedively of thefc two 
counties palatine, and the chanceiors thereof arc to tranfcript them 
into the court of wj^rds. 

• liut for wards in the county palatine of Chefter, no writ ifTucth 
out of the chancery of England, but it ougiit to be found by force 
of a writ or commiluon out of the chancery there in the exche- 
quer, and tranfcripted by -the chamberlain of that county palatine 
into the court of wards. ^ Kos <lum haredes in cujlodia nofira exijiunty 
imiemnes cl fine cxluered.itione confeware tenemur. 

' And by this claufe of this 2(51 of 32 H. 8. the power that the 
lord chancelor and treafurer had for letting of wards lands, &c. is 
taken away. 

** By the llatute of r8 EI. it is eng^Ved, that all inquifitions and 
offices to be found before any efcheator or commiflior.ers, by ver- 
tue of any writ or commillion, or othervvife within the iaid county 
palatines of the faid duchie of Lancafter, Chefter, and Durefme, 
or any of them, fliall be returned by the laid efcheators.or com- 
niifiioners within one month next after the taking of any fuch of- 
iice or inquifition into fuch place or places, and to fuch otiice and 
offices, as heretofore they have ufualiy beene accullomed to be cer- 
tified and returned into, upon paine to forfeit for every default xl. li. 
■to the ufe of our faid fovereign lady, her heirs and fucceflbrs. And 
that the clerk of the faid duchy of Lane', the vicechamberlain of 
the faid earldome of Chefter, and the chancelour of the faid county 
palatine of the faid biflioprick of Durefnic, or other the faid officers 
or minifters within the faid counties palatines, or their deputy or 
deputies, and every of them for the time being; having authority to 
receive any fuch office or inquifition, to whole hands any fuch of- 
fice or inquifition fhall come to, (liall certifie, or caufe to be cer- 
tified under his or their hands in parchment the true tranfcript of 
every fuch office or inquifition taken before any of the faidefchca- 
tors or commilfioners unto the mailer of the laid court of wards and 
liveries, in fuch like manner, form and fort, as is limited and ap- 
j)ointed to the c/erks of the petit bag in her highneffe faid court of 
chancery to tranfcript the fame, upon pain to forfeit for eveiy fuch 
default 5. li. to the ufe of our faid foveraigne lady, her heirs and fuc- 
ceflbrs: which tranfcript fo to be certified iliall there remaine of 
record in like manner and form to all intents and purpofes, as 
the tranfcripts of other offices already certified into the faid court 
by the clerks of the petit bag in her majcflies high court of chan- 
cery, are ufed: any cuftonie, ftatute, art, provifo or provifoes 
heretofore had, made, or ufcd to the contrary in any wife ootwith- 

The ftatute of 32 H. 8. for erection of the court of wards ex- 
tended only to wards: but the ftatute of 33 H. 8. anncxeth to 
this court liveries alfo. Now in what cafes the heire (hall be in 
ward or fue his livery, either by ttje common law, or by the ila- 
tutcs, and ipecially of 32 H. 8.' and 34 H. 8, &c. and of all inci- 

0^4 deny 


V. Rot. JMlrl^ 
9 R a 1^. tif 

i^ , .ul 

to ihr 
of Ifa 

h^- - 

.Scaniy bad irar- 
ricd, i<3t the 
mannor of La- 
tham holdcn of 
him in chicfe ^i 
oi hi J county 

V. 26H. 8. g.b. 
* 14 Eliz. Dier. 

»>Mich. 26 E. I. 
cram r-- • 
Buck '. 

c 8H.6.V-P. 16. 
18 H. 6. rap. 6. 

[201 ] 

201 The Court of Wards and Liveries. Cap. 35. 

dents .to the fame, you fhall reade plentifull matter both in the firfl 
part of the Inftitutes, cap. Efcuage, and cap. Service de Chivaiier : 
and airo in the books of my Reports. 

Which the kings hghncjje^ CsrV.] Although fuccelTors be not 
here named, (yet kings highnelfe) being fpoken in his royall and 
politick capacity, which never dieth, doth extend to his fucceffors : 
othervvife this court had been diflblved by the demife of H. 8. 

* Mich, 7 E. 1., ^ All thejuftices in Ireland certified, Quod homagium tantum Jat 

jn banco, fccundum confv.ctudinem fence Hihernia cujiod' et marLtag\ licet fervi- 

A?i' ^^ r»^ ^^^^'' ciiim miliiaje non debeatuj-. 

Abbot or Malm- k ?- • 7 r / t r-m • ' i rr , r 

ihm'ics cafe. intitled to have.\ 1 hat is by office to be found. 

^ See 33 H. 8. With their manners andlands^ £3'c.] This claufe extendeth only to 

cap. 22. A pro- the inheritances of 'the ward, and not to any of liis goods or chat-f 

vifo for the t^ig (jg|3{.g Qj. (j^^ties, &c. but hereof more fnall be faid hereafter in 

ducny or Lan- i.' i 

caaer. his proper place, 

c 14 Eliz, Dier. In the order^fwvey and g^rjemance of the faid court.'] ^ The generall 

303, . words of this a6t extend not into Ireland, for that is a divided and 

^Mlch. 14.H.8. diftinft kingdome, and hatha proper feale. ^ Nor to the lile of 

Icnus per Brad- -^ bccaufe it is uo part of the realm of Endand, and out of the 

nely Brook etritz. rxL i rr-ii i ^ ii ii 

in Keylways re- P^^^'^r ot the chancery of England, and not to be bound by our 

port. And fo was parliament of England, but by fpeciall name, 
it h(-ldenTrin. And that tJie m after cf the faid 'vjards\ By this claufe the mafler 

40 E!Iz, by Pop. only hath power to award proces. 

and Pervam ' ^^^'^^ proces and precepts with reafonahle pains therein Vwiited^ as he 

upon a cafe re- ^^'^^ commonly ufed in the court of the duchy chamber of Lavcajier being 

ferred to them at JVefm.'\ ^ Note, the duchy of Lancaiter vvas created a county 

by the lords of palatine by aft of parliament in amo c;o E. 3. Adeo plcne ei iji- 

thecouncell,be- fg^yg j^r^f comes Ccfrice iifra cundcm com' Ceftri^ di?nofcitm obti- 
tween the earle /\ii_ "^ ^ -^ r i-n 'i^u 

ofDerby andihe ^'^^^' ^^^ hereupon the court of wards is well wanantecl to be 

heirs generall. a court of equity, and accordingly from the ereftion hereof it hath 

« See more here- proceeded. 

of in the chapter f J7^^ ^y concernin? the title of the kings 7naje/Iy.'] This is evi- 
of the court of i^„. " -^ S JJJ^ 

X-ancafter, And that the 7nafier of the court rf wards for the time being Jli all make. 

And PI. com. and appoint ,all and ftvgular fartlcidar receivers^ feodaries^ and fur- 

fo. 2,14. & 215. I'eyors in every fire f and a fo fees for the execution of tie fame under the, j-g^ig of the fame office in fuch zoife as thefa?ne officers may be ahvayes te- 

Townfends" afe. ^"^^^^^^^ ^' '^^^ dfcretion of the faid ccurt. ] 

r 202 1 Feodarius or fendattrius is derived a feodo feu fcudo^ which in one 

* Seethe firfl: ^<^"^^ fignifieth a * feigiuory or tenure: his office confifteth prin- 
part of the Inft. cipally in three things. 1'. And principally to be fldlfuU in the 
^e^. I- knowledge of the kings tenures within his office out of records and 

authenticall books. 2. At the finding of offices to doe his ut- 
termoft indeavour to manifeu the truth concerning the kings te- 
nures. 3. After the office found to furvey the wards lands, and 
rate it. 

Or otiier caufc in aty wife touching or concerning any thing appointed 
to the order cf the faid court, for y and on the behalf e of our foteraigne 
cafe!^^* *^' ^ lord the king.'] By this claufe, if the heir within age and inward 
See Mag-. Cart. ^^^^ ^"7 goods and chattels, debts, duties, or other thing due 
cap. 5. The unto him, an information may be exhibited by his majefties attorny 

ftock of goods of his wards for his majeftie on the behalfe of the heir : for this doth 
to'tlie heire°'"^ touch or Concern the value of the wardOiip of the body, which is 
G'anvi!,^fo,'54. *'PP^^^^^^^ ^7 this a6t to the order and furvey of this court, for the 
F:e:a, ii. i, ' valuq 

p, II. ' 

See PI. Com. 

Cap. 3 j. The Court of Wards and Livericj?. 202 

value of the manage is hrreby aflvnnrrH. But if th? hf'v 

death of liis anccftor be < 

tain, no fuit car) be in t\u , 

belongitvr to the heir of iull aj^c : * lor ihis Uoth not iii any w'lic • Prrr«g»tl?» 

concern anv thing appointed to the order of this court, viz. neither rcgi*, cap. 3, 

the wardfliip of the body, or of the lands of the iicire. 

^f/o be it ntndcd that ifie /aid altornyy receiver j^enn all, and audi- 
tcrsy ^c.] The judges of this court are the mailer, the furveyor, 
thcatlorny, receiver generall, and the auditors of that court. For 
the words of the flatute of 32 H. 8. are, That thefaid attorny, re- 
ceiver general!, and auditors, fiiall diligently troin time to time at- 
tend upon the faid mafter in the faid court ior the hearing and or- 
dering of matters and caufes, &c. and the ftaiute of 33 II. 8. hath 
added the furveyour in the fccond place in that court : and albeit 
lio;7cris caufa^ they are to attend on the mafter, as the chief and princi- 
pali otficer of the faid court, for fo he is ftiled by both the (aid fta- 
tutes : yet fuch attendance is for the hearing and ordering of matters 
aiid caufes, &c. which maketh them judges. And fee the oath of the 
furveyour which proveth his office to be judiciall: for by the ftatute 
of 3 3' H. 8. his oath is (inttr alia J That he fliall minifter equal 
juftice to rich and poore, &c. and that he take no gift or reward 
tor any matter depending, &:c. in that court. And the like oatli in 
etfe<ft taketh the attornv, the receiver generall and aUv;itors, by the 
faid a(fl of 32 H. 8. And fo it was refolved in auditor Curies cafe 
when Robert earle of Sahlbury was mafter of the wards and lord 
treafurer of England. 

See the ftatute of Lincolne 29 E. i. Stanf. Avrr. regis, ca. Re- 
f:ifer. See a notable cafe upon that ftatute within three years after 
the making thereof. Hil. 32 'E. i. coram rege. Northampton J or- 
den T wine w ikes cafe. 

At the parliament holden 18 Jaccbi regis it was moved on the 
kings behaife, and commended by the king to the parliament for 
a competent yearly rent to be aflTured to his majcfty, his heirs and 
fuccetlors, that the king would aflent that all wardihips, primer 
feafons, reliefs for tenures in capite, or by knights fervice (hould 
be difcharged, &c. Wherein amongft certain old parliament men 
thefe thirteen things did fall into confideration for the effefbin;; 

1. That it muft be done by a6t of parliament, and otherwifc it 
cannot be done. 

2. That all lands, tenements, rents, or hereditaments, holden of 
the king, to be holden by fealty only, as of fome honour, and fuch 
rent, as is now due. 

3. That all lands holden of fubjefts, bodies politick or corpo- 
rate, by knights fervice to be holden by fealty, and fuch rent as is 
now due ; for if lands ftiouid be holden of them by knights fervice, 
the fame might come to the king, 

4. All fubje<5ts, bodies politick artd corporate to be difabled to 

take any lands, tenements, rents, or hereditaments of the king, his [ 203 ] 
heirs, or fucctflTors by any other tenure, then by fealty only, and 
yearly rent, or without rent of fome honour. 

5. No fubje(5f, bodies politick or corporate to create by any 
jicenfe, or any other way or means, any other tenure then by 


HH. 7. 

Jae. U. 

1 1, f. . 


in auditor Curlet 



* Fwft fearch 
xnuft be made 
what the king 
hath been an- 
swered for thefe. 



'i cji 
lanth Jommum 
Hope is the 
dreame of a 
waking man. 

Pfal. 46, 9. & 
€7. 6. 

Dcut. 27. 19. 

The Court of Wards and Liveries; Cap. 35. 

fealty and rent, or without rent upon any eftate in fee-fimple, fee- 
tayl, or otherwife. 

6. In reipecl of the faid difcharge and frcedonie of the fubjefts 
and their pofterities, and that they Ihall be alio difcharged thereby 
of fines and licenfes of alienations, refpeA of homage and reliefs : 
*a competent rent to be afTured to the king, his heirs, and fuccef- 
fors of greater yearly value then he or any of his predeceiTors had 
for them all, which rent is to be infeparably annexed to the crown, 
payable at the receipt only. 

7. A convenient rent to be afTured to the lords for every knights 
fee, and fo ratably. 

8. CornmilTions for the finding out of the tenures of the king, 
and the fubje6tto be returned. Sec. 

9. Ideots and madmen to be in the cuftody of fome of their kin- 
dred, &c. and not of the king, his heirs or fucceflbrs. 

10. The court of wards to be diflblved withpenfions to the pre- 
fent officers. 

11. Provifion to be made for regulating of gardien in focage, 
and that the anceftor may appoint gardiens, &c. and that no gar- 
dien fliall make a grant to the king. 

12. Provifion to be made that bifliops fliall continue lords 
of parliament, notwithflanding their baronies be holden in fo- 

13. That the acl ftiall be favourably interpreted for difcharge of 
all wardihips, &c. 

Which motion, though it proceeded not to effe(5t,yet we thought 
good to remember it, together with thefe confiderations ; * hoping 
that fo good a motion tending to the honour and profit of the king 
and his crown for ever, and the freedom and the ijuiet of his fub- 
jefts and their pofi:erities, will fome time or other (by the grace of 
God) by authority of parliament one way or other tal^ effeA and 
be eftabll filed; 

And we will conclude this chapter with holy fcripture: Deu: 
ejl pater orphanorum^ et judex induarum. And again, Deit^ cujlodit 
advenas, pupillum^ et viduam fufcipitit. And laiily, in Deutero- 
nomy 27. 19, MaUdiBiis eji cjiii pervcrtet jiidk'mm advencr, pupilli^ 
et vidua* 

C A P. 

Cap. 36. The Court of the Duchy Chamber. 204 


The Court of the Duchy Chamber of Lancafter 
at Wcftm'. 

I^ORASMUCH (as it hath been faid) the court of wards hath 
fome reference to this court of the duchy, we thought it fit to 
treat of this court of the duchy next after the faid court of 
wards, for that it may give fome light thereunto. Now for that the 
county of Lancafter is a county palatine, it fliall be necefTary to 
fliew the beginning and ere(^ion thereof. 

King Edward the 3. created John his fourth fon earl of Rich- n^^ „,. ..^. 

mond, anno itcmini 1355, he 19 Mait anno domtnt 131J9 married 29 E. 3. 
Blanche youngeft daughter of Henry duke of Lancafter (the fccond 
duke that England faw.) Duke Henry died of the plague, anro 

35 E. 3. At the parliament holden anno 36 E. 3. the king in fiill Rot. par, 36 E, 

parliament did gird his fon John with a fword, and feton his head v nu. 36, 37, 

a cap of furre, and upon the fame a circle of gold and pearls, and ^<'^- P*** *n^ 

named him duke of Lancafter, and thereof gave to him, and to ^ ^* 
his heirs males of his body, and delivered him a charter. 

In full parliament, anno 50 E. 3. the king ereifled the county of Rot. pit anno 

Lancafter a county palatine, and honoured the duke of Lancafter 50 E. 3. See tb« 

therewith for tearm of his hfe in thefe words. »• pt- o^ihe Inft. 

Edioardus Dei gratia. &'r. Sciatis quod fi nos debita conRdtnatione Mag Cart. 0,31. 

r n T ^ • 7- • • ^ /, ... 7Z H. 6, fo. It. 

fenjantes gejtus magmjicos cunctonim qui ncbis in guerris no/tr:s laudabi • \y^^ j^j^- ^^y 

liter et Jirenue fcrvierunt^ ipfos defuleremus honoribus attoUere^ £9* pro vi- make a county 

ribus juxta merita pramiare^ quanta magis filios nojiros, quos tarn in fa- palatine by his 

pientia^ quam in gejlu mbili alios pracellere con/picimus, et qui nobis h" *^5^" patentt 

cum tenuerunt^ et tenere poterunt potiorem^ nos convenit majoribus honori- ^gn^"' ^^ '*' 

bus et graiiis prarogare ? conjider antes itaque pobitatem Jlrenuam^ etfa- a Dc jffcnfo prae-^ 

pientiam pracellentem chariffimi filii nojlri Johannis regis Cajicll^e et Le- latorum et pro- 

gionis^ ducis Lancajirice^ qui laboribus et expenjis femper Je nobis obfe- "funn. 

quiofum exhibuit pro nobis pluries in necejfitatibus intrepidefe guerrarum " k^ ' 

difcriminibus exponendoy et volentes eo pretextu^ ac defiderantes eundern be obiervcd for 

filium nojlrum aliquali commodo et lumore ad prafcns (licet nm ad plenum ercfting a county 

prout digna merita expo/cunt) remunerare ; ex certa fcientia ncjlra^ et palatine. 

lato corde * de ajfcnfu pralatorum et proccrum in inftanti parliamento * Canccllana. 

noftro apud Wejim^ convocaf exijlen* : ^ conccjfimus pro nobis et heeredi- * .. 'V" " 

bus nofiris prafato filio nojlro quod ipfe ad totam vitam/uam habeat infra • Jufticiariot 

comitatum Lancajlria cancellariam fuam^ ac brevia fua fub figillo fui Juo« tam ad pfau 

pto officio cancellarii, de/utandoj confignando jufliciarios fuos tam ad pla- ctacoron* 

cita cmonegy quam ad quacunque alia placita communem legem tangentia^ quam alia pla- 

tenenda, ac cognitioncs eorundrm^ et quafcunque executiones per brevia Ao'.xcunq- «li» 

fua et mijii/iros fuosfacienJas. Et qu^cunque alia libertates et jura jura regalia ad 

regaiia ad comitatum palalinum pertiner.tia^ adeo libere et integre ft- «-"»* piljtinum 

cut comes Celiria infra eundern comitatum Cefiria dipnofcitur •btinere^ peitmcntia. 

^^ -> J J i> J > ^ Adeo liber? et 

« But It appeareth by the book of 26 E. 3. 59. b. that the faid !»« 

Ilenry duke of Lancafter had the like grant j for there io 9^pr<ecit>e Sec 19 h. 6. n. 

3 the *^^l4-«- ^ 

^ <^ 26 E. 3. 59. b. 

204*1* The Court of the Duchy Chamber. Cap. 36. 

the tenant vouched, and rhat he might be fiimmoned in the county 
of Lane', and the vouchee challen^';ed, becaufe in the county of 
Lancafter the kings writ did not run, /ed-mn-iaUocafur^ but a writ 
fent to the duke or to his lieutenant to fummoh the vouchee in the 
fame m.anner'as it fliould be done in Cheirer. Vid. 39 E. 3. 
Voucher 198. 
Divers have It IS called comitatus palatinus, a county palatine, not a comite in 

counties pala- refped: of the dignity of an earl, but a comitatu, and a palatio regis, 
tjnesthatarenot becaufe the owner thereof, be he duke or earl, &c. hath in that 
pear 'he^'reafteu^" ^^^"^7 j^^'^ regalia, as fully as the king * had in his palace, from 
whence all juftice, honors, dignities, fr>inchifes and priviledges, as 
* [ 205 ] from the fountain, at the firft flowed. Neither by this charter was' 
the duke of Lancafter created count palatine, but the county was 
made a county palatine. The power and authority of thofe that 
had counties palatines \vas king-like, for they might pardon trea- 
fons, murders, felonies, and outlawries thereupoi]. They might 
alfo make jullices of eire, juftices of affile, of gaol delivery, and 
* zo H. 7. 6. 8. of * the peace. And all originall, and judiciall writs, and all man- 
ner of indiclments of treafon and felony, and the procelfe thereupon 
were made in the name of the perfons having fuch county pala- 
tine. And in every writ and indidm.ent within any county pala- 
tine, it was fuppofed to be contra pacem of him that had the county 
27 H. 8. cap. 24. palatine. But thefe and fome others are taken away from them 
that have fuch counties palatines, and annexed to the crown, and 
all writs to be made in the kings name, but the tefte is in the 
name of him that hath the county palatine : and they fliall have 
Pafch. 12 Ellz. forfeitures of knds and goods for high treafon, which forfeiture ac- 
Dier, 288, 289. (^j.o^yefh by the common law. But for treafons or forfeits given 
after the ereftion of the county palatine by any a<5t of parliament, 
they fliall not have them. 
27 H. 8. cap. 24. Juftices of affifc, of gaol delivery, and of the peace are and ever 
fince the ereftion of the county palatine of Lancafcer have been 
made and affigned by commifiion under the feal of the county 
palatine of Lancafter. 
37 H. 8. ca. 19. In the county palatine of Lancafter lines are levyed with three 
36 H. 6. fo. 33. proclamations, &c. before the jullices of aftife there, or one of 
9 H. 7. o. 12. jj^gj^^ gj^jj pjj recoveries to be had of any lands or tenements in the 
county palatine are to be had in the court of that county palatine, 
and cannot be had at Weftminfrer. 
a 22 H. 6. 48. * In trefpafle in the county palatine of Lancafter, the defendant 

pleaded a forain releafe, the court prefixed a day to the parties in 
bank, the record muft be removed by certiorari in chancery, and 
by w////z;2z^-r into the bench, there to be try cd. , , 
b 27 E. 3. 84. ' b i{ ifPue be joyned in the kings bench, or coiiimon bench try- 
ai H. 7. 33. ^ble in the county palatine of L^anc', it IhalL be tryed in the 
39 ^ ^ ^^' ^^' county of Lane' and remaunded hither. 

32 H. 6. 25. ^ Where a releafe or other fpeciall deed is pleaded in bar in any 

19 E. 3. trial 66. court at Weftminfter, within a franchife where the kings writ run- 
45 E. 3 vifneso. ^leth not, it fliall be tryed where the writ is brought. See the 
^9 E. 3- cap. 4. books quoted in the margent. And in this variety of opinions I 
\ Ai*^9H.°6. hold the law to be, that this ftatute of 9 E. 3. extends not to 
32.53. 21E 4.8. 

a. & b. 27 E. 3. 84. 46 E. 3. vlfne 53. Ver touts In jujiica, 10 H. 4. 40.10 II. 6. 15, 16.; Per 
Martyn. 8 H. 6. 3. per Strange. Lib. Int. RaftaJI fol. 


Cap. 30. ihc Court cfthc Duchy Chamber. 205 

cafes when nny other ifluc is jojulhi iryable in the county pnl.i. 
tine or other franchife: and I ground my opinion ujKin the r;- 
folution ofrill the judges of England in the exchequer chamber, in 
^«/;o.32 H. 6. 25. See 39 H. 6. 21, 22. 21 H. 7. 33. 21 E. 4. 

,;, 34, 3J;, 36. 

Vid. lib. Intr. fo. 8i, 82. pi. 8. I : i debt, in 

':rn GuilMtall civitatii I^nJort* 

' King H. 4. by his charter by authority of parliament, ann^ < Ror, ^. i H. 

prin:o of his reign, doth fever the poflTenions of the duchy, &c. from 4>''»''»u'<?'lCart« 

the crown : arid that which John oi Gaunt held for life, is eftabliftj- J*^^" ^'- ^ ^* 

ed/or ever, and - fpeqially by the liatutes of 1 E. 4. and i H. 7. ^Z^'aZtu' 

hereafter mentioned: and this feparation H. 4. made, for tint a cotona aiibori. 

he knew he had the duchy of Laiicafter Cpar muhis re^nis) by tau parriammti 

furc and indefcfible title : and he gouid not be both nx and aux, *""* rtgnl fui 

but fpecially that his title to the crown was not fo aflured, for C^^'j v 

tiiat after the dcccafe of K. 2. the rig*:t of the crown was in the 4. i>i. com. 

heir of Lionel! duke of Clarence, fecond fon of K. 3. John of 119. b. 
Gaunt farhcr of H. 4. being the fourth fon : and therefore he in- 
tended not, that by the law of the crov<n the duchy fliould go with 
the crown, and that he (liould be feifeJ thereof in right of tiic 
crown, as the king afterwards was of the pofleffions of the ducliy 

* of York, earldome of March, and others. •Vice Rot. pari. 

Humpiirey de Bohun earl of Hereford, EfTex and Northampton i H- ^'. Pu:ition 

being the firft and laft e.^rl of that name, and feifed of large pof- r'^'"^/*'V^"-5- 

fcflions in England and Wales, had iiTue two daughters : * Eleanor aniThefaid^ 

the eldeft maried to Thomas duke of Glouc', and Mary maried to Eicanor. 
the Earl of Hertford. 

It is enain:cd that all the mnnnors and hereditaments which de- r 206 1 

fcended to H. 5. after the deceafe of the faid Mary his mother, as Rot par. anno 

fon and, heir unto her, (hould be di (levered from the crown of * H» 5- ou. 30. 

England, and annexed to the duchy of Lancaller, and to be of the ^ ^'^- ""• '5- 

fame nature, as by the kings letters patents efiahliflied by parlia- that no'und "** 

ment there appeareth ; where yoii may read of many iranchifes and fliould pafie of 

liberties belonging to the duchy. ducf .' ■: 

* Here it is to be obferved, that albeit thefe pofleflions defcend- ^^\ 
^cd to king H. 5. as heir to his n^.other, yet he was thereof feifed 

in jure corome, and therefore this adt diflevereth them from the a"see \\^ 1? part 

crown. . . Inft fea. 8. 

•* The duchy of Lancafteras feparated, &c. is by a£V of parlia- *>Ror.[ar. 1E.4. 

ment aflured to E. 4. and his heirs kin^s of England. By this ?(0. ^^' *^- 

all intaiis of the duchy, or of any land annexed thereunto are cut vid'^iiTc*"* 

off, and by this made fee fimple to E. 4. and his heirs kings th« Princes cafe, 

of Kjiglajid. In an a<ft of parliament without queftion this ii- ' Rot par. 

mitjtion of a fee fimple is good. See the whole a<^. i H. 7. 

^^It is enaded thai H. 7. fliould have, hold, and enjoy to him * ;^^^* ^i* f'^^^" 
and his • heirs for evermore the countv palatine of Lancafter, 
and all honors, &'C. By which atft alfo all former intaiis are cut 
off, ^nd in this ftate doth the duchy ftand at this day. ** All uijl. ai i-.4•6o- 
lands, &:c. parcel! of this duchy given to the kino; by the fta- X'«' P**^*^ ' ^'^ 
tute of monafteries, chanteries are ftill within the furvey of the 1 <fj h 3 
duchie. Within the county palatine of Lancafter the duke hav- cap. 7y^ 1 »- <^ 
ing jura re^alidy his jurifdi^ftion and priviiedges therein were very ca. 1 , 
great. cjp. ; 


2 & 

Mar. cap ao. 


«= Rot. par. 9 R. 
s. nu. 13. 
28 H. 8. Brook 
Livery 55. Li- 
very within the 
county palatine, 
but not of a te- 
nure without. 
a6 H. 8. 9. 

Vid. 33 H. 8. 

c. 39. 22 H. 8. 

c. 20. 3 E. 6. 

ca. 1. cuftos ro- 


*^ a & 3 Ph. and 

l^ar. ca. 20. 

21 E. 4. 60. 71. 
PI. com. 219. 

Vid, 33 H. 8. 
cap. 39. which 
fee before in the 
chapter of the 
court of ward?. 
See 27 H. 8. ca. 
li. there a'fo is 
ia chancelor of 
the county pa- 

Hil.iE.6. Brook 
Travers. 53. 

t [ 207 3 

* In hoc erratum 
ejiy as it appear- 
eth in PI. com. 
ubi fupra. 
-f- It is found for 
the king, for he 
IS not duke. 
Huimes cafe, 
Mich. 7 Jac. in 
curia ward. Tra- 
Ters de oflice 
eftoppel per fuer 
de livery. 

The Court of the Duchy Chamber. Cap. 36, 

* The duke of Lane' complaineth by mouth to the king, bi- 
Ihops, and lords in full parliament ; that where after the death of 
Thomas of Lathome who held the mannor of Lathome in the 
county of Lane' of the faid duke in chevage, whereby the man- 
nor was feifed into the hands of the faid duke of Lancafler accord- 
ing to his county palatine of Lancafter, yet notwithftanding John 
Stanley knight as in the right of Jfabell his wife daughter and heir 
of the faid Tho. had entered, and taken the profits of the faid 
mannor without any livery or other fuit made in the chancery of 
the faid duke, for which he prayed remedy. After which, upon 
full advice of the juflices of both benches, and others of the kings 
learned councell, it was declared in the faid parliament, that the 
entry of the faid John into the mannor, as aforefaid, was unlaw- 
full, and that the faid John ought to make fuit by petition, or 
otherwife in the chancery of the (aid duke for the livery of the faid 
mannor in fuch cafe to be fued for. 

Of the franchifes and liberties belonging to the county palatine 
of Lane, you may read rot. par. 2 H. 5. ubi fupra. 

^ Lands to be annexed to this duchy under the great feal fliall be 
as good, as if it had been annexed by parliament. 

See the flatute of 5 El. cap. 23. concerning writs q{ Jignificavit^ 
and excommunicato capiendo. 

Lands within the county palatine fliould pafle by the dukes 
charter without livery of feifon or attornment, but of lands parcell 
of a mannor annexed to the duchy without the county palatine, 
there ought to be livery of feifon, and attornment of tenants, and 
in the fame degree is it in the kings cafe. The reafon hereof is, 
for that the county of Lane' was a county palatine, and the duke 
then \\?Ajura regalia. 

The proceeding in this court of the duchy chamber at Weftm' 
is as in a court of chancery for lands, &c. within the fiirvey of 
that court by Englifli bill, &c. and decree; but this chancery 
court is not a mixt court as the chancery of England is, partly of 
the common law, and partly of equity, as hath been faid. Sec 
before in the chapter of the Court of Chancery. 

The procefTe is by privy feal, attachment, &c. as in the chan- 

The officers of this court be the chancelor, the atturny, the re- 
ceiver generall, clerk of the court, the auditors, fiirveyors, the 
meflenger. There is an atturney of the duchy in the chancery, and 
another in the exchequer. There be four learned in the law af- 
fiflants, and of councell with the court. 

Where by office a tenure is found of the king ut de ducatu Lan- 
cafirice^ and in truth % it is not io^ there needeth no traverfe, for the 
king hath the duchy * as duke and not as king, and a man fhall 
not traverfe, but where it is found f for the king : fed aliter utitur 
in diehus no/Iris^ as it appeareth in the cafe following. 

Le roy (in droit defon duchie de Lane* ) fegnior^ Rich. Hulmefeijie del 
mannor de Male in le coimtie de Lane* tenus del roy come defon dit duchie 
per fervice de chivalry mefne^ et Robert Male (feife des ierrcs in Male 
tenus del mefne ceme de fon dit mannor per fervice de chivalry) ten** 
Rich. Hulme morifi ; apres que mort^ anno 31 H. ^. fuit trove que il 
morifi feijie del dit mefnaliie^ et que ceo dfcend al Edmonde fon ftz dcins 
age^ et trove k tenure avanidit^ ^c, et durant le temps que il fuit in 


Cap. 56. The Court of the Duchy Chamber. 207 

^nrJ ■ * ^^ H. 9. fuit frn>e 

fi-r V pet'ovailr^ et que 

Cfo <j -c- dins ai^f^ et que I.: clit tennncic fuit teiut 

tiel 1 *r» frrvice ilr (hivalrie (cu in vrrttif ceo fuit • 

tenus d.l EJ nandc I ' / in U roy come del dit mejnal" 

tie^) per que h rty J r le ten\ et puis 4 Jac. regis 

npres le mort de Ruli. Muk que fuit lineal heire del dit Robert 
^l f:\ per un outer office trove fuit que le dt Rich, morifl feif^r d4 dit 
tenoficy^ et ceo teij^oif del roy come defon duchy per fervice ' fon 

heire drins a^e, fur ceo Rich. Huhne covftn et heire del dit >■ .se, 

ad prefcrre un bill dejire admit a fon trav rs de cefl darrein ofjict trove 
in anno 4 Jac* Le qutflion fuit^ le quel loffice trove in 35 H. 8. foit 
afcun effoptel nl dit Hul*ne a trazerfer le darrein office^ ou ft le dit 
Hulmefara chrfe primerment a traverfer loffice de 35 H. 8. Et fuit 
chief} que i! doit primermerit travers loffice in 35 H. 8. come in le cafe de 
26 Ed. 3. fol. 65. que fin. fynci font levy de terre in ancient drmcfne^ le 26 E. 3. fol. 65, 
fe^ni.r de que la terre efl tenus^ doit aver brief e de difcent a reverfer le 
primia fine, et in ceo le 2 fine ne ferra barre. Et que le primicr ojffice 
efiopptra r/ lon^e come ceo remaine in free. A que fuit refpcmde ct refohs 
per les 2 chifjvfices^ et chief baron, et le court ae gards, que le trover 
dun office ncfl pas afcun rfioppel, car ce^. nefi que enqueft dffice, et le par- 
ty ^1 eve aver a travers a ceo come ad eftre co'fcfje, et pur ceo farts quefiicn 
ceo nefi pas efloppel\ mes quant offise efl trove fauxemen^ que tcrre efl 
tenus del roy per fervice de chivalrie in capite, ou in verity la terre efl 
tenus del auter fegnior, ou del roy mrfme in focage., fi le heire fua gener all 
livery, (fl tenus //f 46 E. 3. I2. per Movchray ct Perfey que il navera 4G E. 3. n, 
fite aprcs d'avcrre que la terre nefi pas tenjts del roy, Cs'c . mes eeo nefi 
furfque efotpel al luire mefne que fua la livery et nc concludera fon heire : 
car ifpnt d't Moivhrny mefme^ exprefment in nutiel Qafe in 44 AfT. pi. 3 ^, 44 AfT. pi. 35, 
qus efioptcl per filer de livery efloppcra fohment mefme le heire durant fon 
vie : et in i H. 4. fo. 6. b. la le cnfe efl rnyfe de expreffe corifeffion el i H. 6. b. 
fver de livery per Uffue in tail fur faux office, et h efl tenus que les juror i 
fur novel diem claufit extremurn aprcs le mort de tiel heire font ala'ge 
flonque lour confience a trover que la terre nefi pas tenus, ^c. car ilzfont 
jure ad veritatein dicendam, ct lour trover eft appel \'trtd\^um, quafi 
di<5lum verltatis : quel reafon auxiferve quant le heire in fee fimple fuifl 
livery fur faux office que les furon apresfort mort doient trover felonque le 
verify, ijiut efl dit in 33 \l. 6. fo. 7. per Laicon que fi 2 foers font 33 H. 6.fol. 7. 
trove fuiresy dont Inn efl baflard, fi'.% joine in fute de livery, ceflt que P*^ L^'con. 
joiric ove le baflard in livey^ ne alledgera hafiardy inPaut\ mes nul livre L ^^*' J 

dit que hfloppel indurer'' pluis lon^ement que durant fon vie. Et quant li* 
very efl fue per un heire, le force et effeSl del record de cefl livery efl exe* 
cute et determine per fn mort ct pur ceo le efl-yppel expirer* ove le mort le 
heire ; mes ceo efl dcflre intend dun gener all livery, carfpeciall livery ne 
concludera omnin:, come appear apres. Les parols di gener all livery, quant 
le heire efl trove de pleine age, font. Rex efcaetori, &-C. Scias quod 
cepinius homagium 1. fiHl et hapredis B. defundi de omnibus tcnis 
ct tenementis quas idem B. pater fuus tenuit de nobis in capite die 
quo obfit, et ei terras et tenementa reddidimus. Et ideo tibi pneci- 
pimus, &c. eidem I. de omnibus terris el tenementis praedifl', &c. 
plenam fcifinam habere fac', &c. Et quant le heire ftdt in gard afm 
plein age, le br-efe de Ivety dins- Rex, &c. Qiiia I. filius et bxrcs 
B. defun<5li, qui de nobis tenuit in capite, aetatem fuam coram tc 
fufficient' prob. vit, &c. cepimus homagium ipfius I. de omnibus 
terris et tenementib qua; idem B. pater fuus icouit de nobis in capite 


2o8 The Court of the Duchy Chamber. Cap, 36- 

die quo obiit, et ei terras et tenementa reddidimus : et ideo tibi prae- 
cipimns, ut fiipra. Quel breif eft le Jute del keire et pur ceo co?nent que 
toutes les parols del breiffont les par oh le toy (come tout les breifs le roy 
• f^nt) et coment que le breif dz livoy eft generally de omnibus terris et 

tenementis de quibus B. pater I. renuit de nobis in capite die quo 
obiit,y2jr«j dire^ affirmac que afcun mannor in pariiculcr ejl tenus in ca- 
pite, et nient objfant que ceo nefi forjqiie p-ofecutlon dun breif le roy^ et 
nul judgment fur ceo ; uncore in t ant que general I livery eji foundue fur 
loffice^ et per lofficefuit trove que divers terres et taxmentsfuer'' tenus del 
roy in capite, a ceft caufe lefuer de cefl breif concluder' le heii e fclement 
que fuifi le livery^ tt aprtsfon mort les jurors in novel breif de diem clau- 
'[it. cxtYcmuxn font alarge^ co?ne efi avandit^ et f cefu jury troxe faux- 
ment tenure del roy. auxi le fegnior de que la terre eft tenus poet tr avers ceft 
office^ ou f terre foit tenus del roy, l^c. in focage, le heire poet travers 
cef darrein office^ car per ceo il cfi greve fokn:e?it, et ne travers le py inier 
offtce^ et quant le pier fuift livtry et mort, le concbfion eft execute et paft^ 
come eft dit adevant. Et nota la ef unfpeciall livery, -mcs ceo proceede 
de grace le roy^ et neft pas fute le heire^ et le roy poet grante ceo ou al 
plein age devant aetate probanda, &c. ou al heire deins a.e, come ap' 
jii E. 3. 40. piert in 2i E. 3. 40. et ceo eft generally et ne affirm direBinent afcun 
46 E. 3. 33. tenure come le generall livery fift^ mes ove un, ut dicitur, et pur ceo neft 

46 Afli. p. afcun eftoppelfins queftiony et al common ley fpeciall livery foet over eflre 

^ i^r^' V' grant devant afcun office trove^ mcs ore per leftaiut de 53 H. 8. ca. 22. 
33 H. 6 ^o. efi purvien^ That no perfon or pcrfons having lane's or tenements 
2.1 H. 6. zS. above the yearly value of 5 1. fliall have or fue any livery before 
37 H. 8. B. ef- inquifition or office found before the efcheator or other commif- 
JJ^PP^Jl 21^-7 E. fioner, mes per un expreffe clauf in mefme la^e, livery may be made 
See 4 Mr^^inft °^ ^^^ lands and tenements comprifed or not comprifed in fuch of- 
cap. Pardon. fices. Iffint fi office foit trove dafcun parcell^ i^c. ceo fffift^ et fi le 
Mich. 39 & 40 terre trove tn loffice ne.xceade 20 /. donques le heire poet fuer gfncr all livery 
EJ. fo!. 397. apres office ent trove^ come eft avandit ; mes ft la terre nexceade 5 /. per 

annum, donques generall livery p-^iet eflre fue fans office ent ti eve per garrant 
del mafter de gards, ^c. Vid. Dier 23 El. 377. que le roigne, ex. de- 
bito juftiriop, nef lye a ceft jour puis le dit aB ^^ 33 H. 8. a graunter 
fpeciall livery, mes efi afon eledion a gr aunt' fpeciall livery, ou a chafer 
le heir a un generall livery. 
[ 209 3 ^^-'^^ ^^^^ refolve in cef cafe que loffice de ^^ H. 8. ne fuit pas tra- 

verfable, car fon travers demefne pro-vera que le rry aver' caufe daver 
gar d per caufe de gard, et quant I e yoyvient al poffffion per faux office 
cu aut* fneanefur pretence dun droits, cu in veritie il nad fiel droit, uncore 
Which cafe we f appiert que le roy ad afcun auter droit ouintereft a aver et tener la terre, 
have rehearfed in /^ 7iul travefera ceft office ou title le rcy, pur ceo que le judgement in le 
pua<>e"whe^iei"n tfewers eft, Ideo confideratum eft quod manus domini regis a poiTtf- 
\ve reported it fione amoveantur, &c. Qiie ne doit efre quant appiert al court que le 
when it wasfrefh roy ad droit OU intereft daver la terre, et ove ceo accord, 7 H. 4. foi.33. 
in memory, and ifi /^ countee de Kents cafe ; et que apres generall livery fue per le heir de 
war\ibiiAcd° ^o^^^'i ^'^^e le office ne poet eftre traverfe per fen heir: Et iffint auxi 
fuit refolve per laftiftants del court de gards in Scurf elds cafe in cwia 
ivardorum. Tr. 8 Jacobi. 

What leafes may be made of lands, &c. within the furvey of 

the duchy of Lancailer ; fee the ordinances of the court of duchy 

concerning; leafes to be made, &c. aiino zoll. 6. 

Mich. 6 Sc 7 See ^\^q j)jej. ]\iich. 6 5^ 7 Eliz. the refolution of all the judges 

\7.. ier2-;2. conccming Icafcs made bv the chancelor of the duchy chamber. 


27 H. 8. ca, 11. 

And if the Icafe cither in pofll-fTion or rcvcrfion be niaclc under Uic i ;'f,.»i.',M:.. 
tliichy I'tal, QtfW tiomittus rex de advifamfnto ct n/p.:/u conciLi ducalus t tc^Vh. tni 
LaKcnJlriit dimijity CsV. the leafc is g.v-J, alli.oiigh ia truth the ^- **P- *<>• 
chanctlor made it, and put to the Ic-lc of the duchy. For fuch 37H.8.c*p. il 
Icafes under the duchy fcal, or under the fcal of the county palatine 
of lands within the fame, arc of as great force as hndsof the crown 
under the great fea!e. 

Aiixit hy fpcciall provifion and conftnu^ion, to a grant of lands ,, £ f^^ 
and tenen^ents parccll ot the duchy of Lancnlter that lye out of the Rot. p7r. i*'h. L 
county palatine, there mud be livery of ftifin and aitornamcnt, as nu. 8i. 
the cafe requireth, vet the grant under the fer.l of the duchv is mat- ^'^ Cartam H. 
ter of record in refpert of the dignity of the perfon of the king, Ji^^'/'^'^'^^"J' 
and ncedeth no delivery to make it a deed (as deeds between fub- corona auiZniatt 
jtfts ought to have) and if the fame be denied, «<;« ejifa^um cannot parL ann* n^ri 
be pleaded, but nul tiel record. j-i i- 

And if the king by his letters patents under the feal of the duchy ^^^' P**"^- 3 "• 
doth grant a revcrfion cxpeftant upon an eftate for life or years of Kot"parI i E 
lands parcellofthe faid duchy lying out of the county palatine, the 4, nu. x6. 
reverfion doth pafTe maintcnant to the patentee by force of the let- Rot. pari. 1H.7. 
tcrs patents : but he lliall not have an adion of wafte, or diilraine ""• *• ^*'^- *• 
jbefore attornament. * For this cafe is like to the cafe of a fine j^^ ^ J^ 
between ful3Je<51s, which is matter of record : and fo the kings let-r p. lofi.i. fo. 7. 
tcrs patents under the duchy feal are as high a matter of record (if nonomittas,«cc. 
not higher then a fine.) And this tendeth both to the honour of the p*"" prerogar, 
king and the fafety of fuch as purchafe fuch reverfions of the king, ^^"f- ?«•■'• *H. 5. 
that tJie ftate of the reveiTion fliould pafle by thofe letters patents: ^'^"^ ^ ^^ ^^ 
otherwife if the patentee dve before attornament, the -letters patents ,1 £.'4. nu. V.i! 
fliould be void, and the validity of the kings grant (liould depend Dicr MIc. 6 5: 7 
upon the pleafure of the IcfTee, and many inconvcniencies fliould J**^/ »»'>>^up«"'»' 
thereupon follow. And all this appearet'h by that great and grave ^ ^rtof the i nft* 
refolution of the cafe of the duchy of Lancafter reported by Mr. f^ -^q 
Plowden, that no flatute now in force doth feparate the duchy piowd. Com. 
from the perfon of the king, nor to have the perfon of the king fe- 2»i- !»• 
parate from tiie duchy, nor to make the king duke of Lancailer Vide Rot. part- 
having regard to the pofTelTions of the duchy, nor to alter the qua- \^^q^^' **"* 
lity of the perfon of king H. 7. but only that tlie king fhould have 
to him and to his heirs the faid duchy leparatc from the other pof- 
fcffions ; in which cafe the duchy at the leaft is JDyned to the perfon 
of H. 7. and to his heirs, and the perfon of the king remain as it 
did before, for nothing is faid to the quality of the perfon of the 
king, nor to the alteration of his name. And the perfon of the 
king fliall not be infeebled becaufe the duchy is given to the kinw 
and his heirs, but remain alwayes of full age, as well to gifts and 
grants by him made, as to adminiftration of juftice: whereupon it 
was refolved, that leafes made by E. 6. being within age of lands, [ 210 1 
either within the county of Lancailer or without parcel! of the duchy 
(the ro^all and politick capacity of the king being not altered) were 
not voidable by his nonage : a juft refolution, and tending to the 
fafety and quiet of purchafers and farmors, and proveth dircAIy 
that the royall and politick capacity of the king being not altered 
(as to thefe polTeflions) the letters patents of the king of thefe pof- 
feffions under the duchv feale are of record : and wc finde r 
nion in our books, or any thing in any record, that we ren,. 
againfl this. So as the law concerning thb point is, that for grants 

IV. Inst. K oC 

21 a The Court of the Duchy Chamber. Cap. 36* 

of rcverfions by letters patents under the kings feal of the cKichy of 
Lancafter, there mil ft be attornament for lands out of the county 
palatine to make a privity, as in cafe of a nne for the aftion of 
Vide 27 H. 8 wafte or diflrelTe : but of lands within the coanity palatine, the rfe- 
cap. II. for tke verfions pafTe by letters patents under the Teal of the county pala- 
feve all feales. ^^^^ bot!i for the eftate and for the privity of the action and of the 
Corn of fcvveis^ diftrefTe : and yet the feal is as high a matter of record in the one 
under the feal of c^f^ ^s in the Other. And herewith agreeth the continual pra6tife 
the duchy, and in the court of the duchy of Lancafter. For if a reverfion be 
they becommif- granted Under the duciiy leal in fee or in tayl, &c. of the lands of 
fioners of record. ^^-^ duchy expe<5lant upon a Icafe for years, life, &c. a writ in 
Englifh is ufually granted in the kings name under the duchy feal 
reciting the grapi, and commanding th*! particular tenanr to at- 
torn : or if iT oe of a mannor in pofleftion, a writ fikewife ii> 
Engliili is ufually granted commanding the tenants generally to at- 

The feal of the dnchy of Lancafter remains with the chancelor 
at Weftm. And the feal of the county palatine remains always in 
a cheftin the county paLitine under the fafe cuftody of the keeper 
27 H. 8. cap. x6. thereof. All grants and leafes of lands, tenements, offices, &c. in 
the county palatine of Lancafter fliall paile under that feal and no 
other: and all grants and leafes of lands, tenements, offices, &c. 
out of the county palatine and within the ftirvey of the duchy, 
Bier ubi fupra. Hiall pafle under the feal of the duchy, and no other : other- 
wife fuch grants and leafes fliall be void by the apparent intention 
of the aa. 
Fl. com. aa2. See alfo pi. com. 222. notable matter concerning leafes made of 

lands within the furvey of this court, the king being within age, &c. 
refolded and decreed to be good. 

This county palatine was the youngeft brother, and yet beft be- 
loved of all other, for it had more honors, mannors, and lands 
annexed unto it, then any of the reft, by the houfe of Lan- 
. cafler, and by H. 8. and queen Mary, albeit they were defcend- 
ed alfo of the houfe of York, viz. from Eliz. the eldeft daughter 
of E. 4, 
» Roialties, * For the great 'roialties, franchifes, liberties, priviledges, im- 

franchifesjlibe^- munities, quictances, and freedomes, which the duke of Lancafter 
ties, &c jj^j JQY }^]^ ajj(j his nien and tenants, fee rot. pari, ^ig Lun^e poft ec- 

^u°^ o^ no^t in^" ^^^' ^^^^^ Martini an. 2 U. ^. all which are eftabliflied, ratified and 
print, and efta- confirmed by authority of parliament, neceftary to be known Dy 
bllfhed and con- fuch as havc any of thefe pofTeiiions. 

firmed Rot. par- 
liann. anno 3 H, 
^. nu. 15, 


Cap. 37. The County Palatine of Chcfter, 2tl 


Of the County Palatine of Chcfier. 

SKEING the ereif^ion of the county palatine of Lancaftcr hath 13 1. 3. Voath. 
reference to the county palatine of Cheftcr, we have thought iS. 49 ^- 3- 9* 
good to entreat of it in this place, for that one giveth light to the '9 H- 6. la. 
bthcr. lzE.*4 iV* 

* We have fpoken of the county of Lancaftcr raifed to a county • a man m»y 
palatine by zA of parliament. We (lull now fpeak of a county have a counrv 
palatine created by prefcripiion. palatine by ?re- 

> We find that Hugh Lupus fonne of the vifcount of Ave- , "P^'g""; * ^- "^ 
renchcs in Normandy by his wife William the Conquerours fifter i^e'. 4.*f6 
\ras the firil hereditary' earle of England created by his uncle nR.i.a.t). 
the Conquerour earl of Chefter, and in the ftile of a conque- Regift. ij.». 
rour, Totnm<]: hir.c ccmitatum tenendum fihi et * heredihiu tta libtre ^h«iLi:pu$<i;4 
acl gladium^ Jtcut ipfe rex hnehat Angliam ad co)^nam^ ded'it. f To of^woo^f ( 
this earldome is annexed the county of Flint in Wales. ed, argent. 

This is the nioft ancient and moll honourable county palatine re- • In Feefimplt. 
mainina in England at this day, * with which dignity the kings t*j^-2-"p.9. 
eldeft fonne hath been of long time honoured. ' "aiR.i.cap.g. 

By this general ^rant this Hugh earl of Chefter had ;Vr^ regalia ' • 4- ^a. 1. 
within the county, and confequeiitly bad comitaium palatinum with- 
out any expreiTe words thereof, and by force thereof he created 
eight Chefliire barons, which was the firfl vifible mark of a 
county palatine. That is to fay, Robert Fitz-Hugh baron of Thefebaroiw 
Malpa% Richard de Vernon baron of Scibbrokei William Wal- had within their 
bank baron of Nantwich, William the fon of Nigil baron of Hal- fevcrall courts 
ton, Hamond de Mady baron of Dunham, Gidebcrt de Venables X"/*"j,^'/"" 
baron of Kinderton, Hugh the fonne of Norman baron of Hawar- ' ''^ *" " ''■ 
dyn, and N. baron of Stockport. By the faid generall grant t - 

he had not the patronage and tenure of the bilhoprick 9f Chefter, <-; , 

for thus I reade in the Book of Domefdav made in the time of this ^^^Z** f;w 
Hugh earl of Chefter. CeJlreJJure. Tenet cpifcopus ejufdem civitatls Chi'/h'"yo^u may 
Je rege^ quod adfuum pertinct epifcopatum ; totam rcliquam teiram comi- fee at l.irge, Rot 
taius tenet Hugo comes de rege. Inffjex. Pat. an. 

• Britton faith, Voilons mm que jujlkcs errant foient ajjignes de les »8H.6. pa«c 
cJiaptcrs oicr et terminer en chcfcun county e^ et en chefcun /ranch -fe de 7 Vn^'\}f' u 
ans en 7 ans^ et autiel poer voilons que nous * chief juft ices de Ireland et j^ ^*-. 5. 
Cefire event. «« Chief Juftice 

, ' Within this county palatine, and the counhr of the city of dcChe/ler. 
Chefter, therie is, and anciently hath been a principall officet call- * =7 "-J/; 5- 
ed the *" chamberlain of Chefter, who hath, and time out of minde chc.^^t. 
hath had the J4irifdi<5lion of a chancelour; and that the « court of «c,urtor"c:.;M. 
Exchequer at Chefter is and time out of mind of man hath beea <juer. 
the h chancery court for the faid county palatine, whereof the k chtncsry 
chamberlain of Chefter is judge in equity. He is alfo judge of mat- court, 
ters » at the common law within the faid countv, «s in the court * -At the «*ti. 

Ra of ^•°J'''- 


^ A mixt court-. 

1 Vice chamber- 
«,The juftlceof 

[ 212 ] 

Sir James Dier, 




lo Febr. ii re- 

gini£ Elizab. 

« KingH. 7. 
made it a county 
of it feltc. Cam- 
den. 459. a. 
* By prefcrip- 

The chamtfr- 
1am of Chefter. 

The juftics of 

Pfror, forsin 
pica and forein 

The County Palatine of Chefter. Cap. 37^ 

of Chancery at Weflni ; for this court of chancery is a '^ mixt 

There is alfo a ' vice-chanibfrlaln, which is the depTitv of thcf 
chamberlain. And theFC is within tl;e fame a jujftice called ^ the 
jufiice of Chefitr, who hath jurifdii^ion to hear and determine 
matters of the crown, and of corraon pkas. Of fines and recoveries 
levied and fiifFertd as well withiti the county palatine of Cheller as 
of the city of CbeOer. See the ftatuies of 2 E. 6. ca. 28. & 43 
£liz. cap, 1 5. But of th.efe and other matters concerning this 
county palatine we have thought good to fet clown the refolution 
of four reverend judges (whom v.e knew) upon view of records 
and evidences, ai^d mature deliberation thereupon in writing, in 
thefe words. 

The opinion of Sir James Dler knight, chiefe juftice of the com* 
mon pleas at Wcftminfler, Richard Wcfton and Richard Har- 
pur efquircs, two other juftices of the fame common pleas, and of 
Thomas Cams efqnire one of t!ie jufticcs of the picas to be h(3l- 
den before the queens majefty, declared and prefenfed to her high- 
nefTe the 10 day of Februarv anmdom- i i;68. by vertue of her ma- 
jeuies letters tons diie6led the fecoiid day vi the fame month con- 
cerning tljejurifdiclion and liberties of the county palatine of Chef- 
ter, and the authority of the chamberlain, and his office there: 
and concerning the controverfie between the lord prefident 
and conncell in Wales, and the faid chamberlains office lately 
grown upon Thomas Radfords cafe exhibited unto us : as en- 

Firit, by that which we have fetn and confidered, the county o^ 
Chefter (wherein * the city of Ghcfter is now, and by a good time 
paft hath been a county of it felf) of * very ancient time before 
the reign of king H. 3. hath been, and yet is a county palatine, 
with other members thereunto belonging: and fo from time to 
time hath been received and allowed in the law. And therefore the 
lawes, rigbtfuU iiHiges, and cuilomes of the faid county palatine are 
to be preferved and maintained. 

It further evidently appeareth, that by the like time of anti- 
quity and continuance, there hath been ?d\^ yet is in the faid 
county palatine one pri'icipall or head ofiicer called the chamber- 
lain of Chefter, who hath, and ever had. all jurifdidions be- 
longing to the office of a chancelour within the laid county pa- 

Ahd that there is alfo within the faid coimry palatine ajufticefor 
matters of the common pleas, and the pleas of the crown, to be 
heard and determined within the laid county palatine, commonly 
called the juftice of Cheifter. 

We aUb fee that all pleas of lands or tenements and all other con- 
tracts, caufes, and matters riling and growing within the fame 
county palatine are pleadable, and ought to be pleaded, heard, and 
judicially determined within the faid county palatine, and not elfe 
where out of the faid county palatine. And if any be pleaded, 
heard, or judged but of the faid county palatine, the fame is 
void, and coram mn jndice^ except it bee in cafe of error, foreiga 
plea, or foreign voucher. 

, We alfo fee that no inhabitant of the fame county palatine by 
the liberties, lawes, and ufages of the faid county palatine ought to 


Cap. 37. The County Palatine ofChcftcr. ^12 

he cailctl or compelled by any writ or proccs to appear or anfwcf Trfaforj ar.4 
any matter or catifc out of tac Tame couniy pnbiinc lor any the "r-jr. 
-caui'cs atorofaiti, but only in cnulcs of tri-afon and error. And the 
queens writ dolli not conje, nor ougiit to be allowed or ufed within 
the laid county palatine, but under the feal of tuc laid county j>ala- Sei' of th« 
tine, except writs of proclamation by the ftatute of E. ;6. amo regni «*>«nty pAUdot. 
Jut py'tmo. 

It doth further appear uiKo us by good matter of record to us Coort of the cs- 
ihewed, that the court of the exchequer at Che fter is, and by the chequer Utbc 
lime of antiquity and continuance aforefaid hath been ufed as the '^'^•"WT «oo^ 
chancery court for tlie fame cr>unry palatine, and that the cliam- 
berlaine of ChciVr is the chief officer and judge of tiiat court, and Chtmberlamc 
that lie is, and time out of mind hath been a conlervator of the judge of ihac by vertue of the lame olhce, and hath like power, authority, ^^"'^• 
preheniinence, jurifdiifion, execution of law, and all other cuf- A confervator 
tomes, commodities, and advantages pertaining to the jurifdiiftion of the peace, 
of a chancelour within the faid county palatine of Chefter, as the 
cliancelor of the duchy of Lancafter hath uicd, had and ought to 
have ufed and executed withiu the faid county palatine of Lan- 
cafter : which more evidently appeareth alfo by the nnderfiandin^ 
of the firft grant made by king E. 3. to John his fonne then duke Gf 
Lancafter, whereby he made the fame county palatine of Lan- 
cafter, referring the faid duke to have his chancelor, liberties, and 
regiU jnrifdiction to a county palatine belonging, adco liberc et in- Sec the grint 
iegre^ jicut comes Ctjlyia infra pundem comiiatum Cejiria dignofcitur before. 

Alfo it appeareth unto us that the vicechamberlaiu did lawfully Vlce-chamber- 
■:..\\di orderly commit to prifon Thomas Radford nanicd in the cale lalnr. 
prefented unfo us, for that he refufed to put in fureties of the peace f 213 1 
within the faid exchequer upon atiidavit made in that behalf. And 
taat the proceedings of the counfcll of the marches touching the en- Councell' of th« 
largenient of tiic laid RadfonI from the faid imprifonment, and alfo mjiches. 
I heir further prder and dealing againft the faid vicechamberlnin was, 
and is without fulhcient authority, and contrary to the jurifdidion 
of the othce of the faid chamberlain, and the ancient laws and h- 
berties of the fame county pgla,tine. 

And we doe alfo alhrm that the ftatute of 34 and 35 H. 8. called The prefident 
the ordinances of VV^les, vvhe*reby the authority of the lord prefident »"d ^ "■ ' 
and councell within the donfmion and principality of Wales and ^^'''^ 
marches of the fame is eftablifhed, and hath the force of a law, f^^'^^ 
for or concerning the determination of caufes and matters of the xhc cot-ntie? nf 
fame, comprehendeth not the counties of Chefter, and the city of Chejie.-, 
.Chefter, becnufe the fame counties of Chefter and tlie city of Chef- ^'^y °^ - 
ter be no part nor parcel of the faid dominion or principality of ^^^*J^J^\i^^ 
Wales, or of the marches of the fame. Vaiej. 

Between Sir John Egerton plaintif, and William earl of Der- j^jj ,, jac. i© 
by chamberlain of Chefter and others defendants, for the truft ihclha.icery. 
of an intereft of a tearm in lands in the county of Ciicfttr, their 
points were refolved by the lord ciiancelour and by the chief 
juftice of England, juftice Dodderidge, and juftice Wincbe, whom 
the lord chancelor called to be his alhftants as followeth. 

Firft, that the chamberlain of Chefter beini/ fote jud^e in ViJ.ln; 
rouitv, or hii deputy, cannot decree anv cainc ^A'heirein he hj.rfelf ***■•*' ^ ■ 

^ ' ' „ . anno :o t. X- 

■■^3 ^ CorAinre^r, 

213 The County Palatine of Cheftcr. Cap. 37. 

is party, for he cannot he judex in propria caufa^ but in that cafe he 

may complain in the chancery of England, 
jii H. 3. brc. Vide 21 H 3. breve 88 1. in ralionabili parte verfus coniitem Cejlrla 

^** de h^r edit ate D. quondam comit^ Ccftria;, Comes dicit quod mluit re^ 

fbondere de terra in coni* Cejirice uhx brevia domini regis non currunt extra 

lihertates fuas niji cur'' conJider\ et confideraium fuit per curiam quod 


2. If the defendant dwell out of the county palatine, if any of 
the county palatine have caufe to complain againft them for mat- 

1? AfT, 3S2. ter of equity for lands or goods within the county palatine, the 
33 E. 3. m. plaintif may complain in the chancery of England, becanfe he hath 
"^ ©^'^"S H. 6?6 ^^ means to bring them to anfvver, and the court of equity can bind 
7 h! 6. 37. * * but the perfon, tor othervvife the fubiea: fiiould have juft caufe of 
% E. 4.8. II H. fuit, and fliould not have remedy : and when particular courts fail 
.4. 27. &c. of juftice, the generall courts fhall give remedy, m curies regis deji-^ 

Cerent in iujiitta exhlhcnda. 

3. It was refolved, that the king cannot make any commilfion 
to hear and determine any matter of equity, but matters of equity 
ought to be determined in the court of chancery, whofejurifditfion 
therein have had continuall allowance, and fo was it refolved in^ 

* See thh cafe * Perots cafe. 

in the chapter 4. Upon confideration had of the faid certiScate of the lord 

of the Chancery, j)-,^^^ ^^^ jj^^ ^^^^ Other judges, it was refolved, that for things 
^^" '^' tranfitory though in truth they were emergent within the county 

palatine, yet by the generall rule of law, the plaintif may al- 
See in the chapt. ledge thefe^to be done in any county where he will, and the de- 
of the County fendant cannot plead to the jurifdidion of the court, that they 
Ratine of Dur- ^^^^^ A^nz^ ^q, within the county palatine: but if the plaintif 
I! * fuppofe the tranfitory caufe of aftion to be in the county palatine, 

that may be pleaded to the jurifdidlion, otherwife it is of things lo- 

An office found by commiflion in the nature of a mandamusi^ 
ifTuing out of the chancery at Weftminfter before the commilfioners 
in com' Oflria foi* lands holden in capite in the fame county, was 
holden void per con/ilium curia wardorwn, for it ought to be by writ 
or commiffion out of the exchequer in the county palatine, which 
is the court of chancery there. 

If an erroneous judgment be given before the chamberlain in 

tlie exchequer in any matter wherein he proceedeth according to 

the courfe of the common law, the writ of error fliall be directed 

Gamer ario feu ejus locum tenenti ; but if the judgment be given before 

f 214 ] the jullice of Chefler, then the \vrit is directed Jujlklaiio Cefiti^efive 

JlegUt io. 17.3. ejus locum tetienti. And note that in a writ of error to the * county 

34 H. 6. 42. of C heller, day (liall be given by fo long time, that three counties 

6 H 4. 9. Lib. j^ay [^g holden before the return of the fame writ in the kings bench, 

Dier ^-^Ir ^-^o ^^^^'^^'^ ^^ f^""^ months, by which time the juftices or lieutenant 

32*1. Dier*i8El' within the fame County may redreflTe the error, if they will, and this 

^4q, 346. by the ufages of the fame county; but in a writ of error upon a 

* Note thefe fine they have no fuch power : and the plaintif ought to bring the 

general) words ^,.5^ ^f gj-^^j. (^ ^]^^ j-^g^j- county after the te/le^ and there it fhall be 

to !he charti\»r- XtzA^ coram judicatoribus ratione tenurarum fuarum ibidem \ and the 

lain as to the ^ plaintif fliall aifign the error without praying procefTe againff th^ 

jufticcbythe tenant or defendant, but only to y>^z.\ judi cater cs to examine the 

rule of the Re- error, and if error be found thev mav advife ihereon, or prefently 

lift, ubifup. ' ' reform 

Cap. 37. The County Palatine of Cheftcr. 


reform it, and award reftitution, or by their difcrction ihcy may 
award procclTc returnable at the next county againft the tenant or 
4lefc;idaiit ad attdlcHiV ftrorrt^ (>\ hich is reafonable and necellar)' to 
be granted) and (o return their own judgment given bv them qx 
their predeceflbr, M\f\ then there is an end of the bufinefle, and the 
record flwU remain there without removing; and by this means 
they (hall fave an hundred pound forfeiture to the king. But if 
tliey atlirm the judgment which is erroneous, tlieir affirmation and 
ihe record ousjlit to be reinoved into the kings bench, if the party 
phintif be grieved tlicrewith: and if their aftirmation be erroneous, 
aithougtrtheir firft judgment was given by their predoceMors, not- 
withllanding they fliall forfeit the hundred pounds. And the party 
■grieved by their afKrmation or reverfall ought to bring a fpecial 
writ of error peremptory, which fliall not be examined by them, for 
that all this is to be underflood where error in law is afligned : for 
upon the writ of error firfl brought, if any error in fait be aflign* 
iCd, as death of one of the parties, hanging the plea, or the like, 
which is tryable by the country, they cannot hold plea there- 
of, but return the record, with the writ into the kings bench. 
Neit'aercan they bold plea of a releafe of errors after the judg- 
nrent or the like, for they are only to examine the errors of 
the record or procefle, and all this -doth notably appear in our 
■books. But if no fuch ufage had been, the record ought to have 
been removed by the writ of error into the kings bench, as it ought 
4o be in other cafes. 

Egerton the queens folicitor moved in the chancery to have a Hil. 29 Eil*, 
<miorari to the county palatine of Chefter for the removing of a 
record of affife taken in that county between Cotton and others 
plaintifs, and Venables and others defendants, wherein the recog- • . '' 

nitors of aflife gave a falfe verdi<5t, and to the intent, that a writ of - • 

attaint might be brought in the kings bench, a certiorari was prav- 
ed. And it wa« doubted, whether an attaint did Ive in this cale, 
but of the county palatine. And by the opinion of Wray and An- 
derfon chief juftices, and Man wood chief baron, upon confidera- 
tion had of the ftaute of 23 H. 8. cap. 3,. whereby it is enabled in 
thefe words, That ail attaints hereafter to be taken (ball be taken 
before the king in his bench, or afore the jufliccs of the common 
place, and in no other courts; they relblved and fo ccrti(ied the VIJ. 3 El. DIer 
lord chancelor that for a falle verdict given in the county palatine 202. b. Bcn<ji«e« 
of Chelicr, the attaint ought to be brought either in the kinj^a 3 El«i. 
J)enchor common place, and not in the county palatine of Chefter, 
and thereupon a certiorati was granted for the removing of the re- 

Hil. 29 Eliz. coram rege. The cafe was that queen Elizabeth HI?. 29 El. Ce- 
bv her letters patents granted the cultodv of the caftle of Chefter "in re^r.Hud- 
to John Pafton, and Richard Huddlcftone efquires, and the furvi vor ^J*J.°JJ ^JJ^* 
of them ; John Pafton died, and in ^J'circfac' againft Iluddlefton 
in the exchequer before the chamberlain, (Glafier then being de- 
puty chamberlain) to repeal the faid grant, &:c. judgment was 
given againft Huddlefton that the patent fliould be adnullcd and 
cancelled, and hereupon Huddlefton brought his writ of error. 
And It was objefVed that before anv writ ot error ought to have 
been granted, Huddlefton ought to fiavc fucd to the queen by pcti- 
iion to have a writ of error according to the book in a 3 E. 3. fo.«4. 



2^ E. V f« «4* 
F. N. B. fo. 


215 The County Palatine of Chefler. Cap. 37, 

But it was anfwered, that here in this cafe no inheritance was reco- 
vered by the judgment, and if Huddlefton that claimed the office ♦ 
but for tearni of his Hfe Ihouid be driven to his petition, where- 
in great delny might be ufed, his life might end before he could 
obtain his writ of error, therefore the writ of error in this cafe 
was to be granted without any petition: and of that oj^nion was 
the whole court of the kings beach, and fo the writ of error did 
Patch. 9 E. a. Judices ct JeRatores com'' CeJIrice mn confueverunt apponere JigiUa fua 

Ror. ^2. aliciii recordo in prafentia jufi idariorum. 

T^ s' ca n Before the iialute of 34 H. 8. neither tlie county palatine of 
Chefter fent knights to the parliament, nor citizens out of the citv 
of Chefter. 
z-j H. 8. ca. 5. Before the ftatute of 27 H. 8. the lord chancellor of England 
a] pointed no juftices of peace, juftices of quorum or goal delivery 
within the county of Chefter. 
s2 E. 4. Jurifd. The mannor of C. in the county of York was holden of the 
^^- ^'^- ■l"'^- prince, as of the county of Chelier, and that ail pleas reall and 
jie^aturTmme-' pei'fonall rifing within the county, or within any parceli of land hol- 
diate or mediate, den of the couiUv ought to be impleatled within the faid county 
palatine: for the king by his letters patents may ordain a court at 
York, or in any other county which ftiall have jurifdiclion through 
the whole realm, and fo it was refolved. 
Lit. Pat. 6. Apr. The city of Chefter was made a county of itfelf by king H. 7. 
^^ ^- 7- by letters patents, dat. 6 Aprilis 21 of his reign. 

5 El. cap. 43. See the ftatute of 5 El. cap. 23. concerning writs ci Jignificavit 

iSEl. cap. 8. and excom' capiendo Seethe ftatute of i8 El. ca.p. 8'. making of 

more juftices then one. 
9 H. 6. cap. 10. j3y the ftatute of 8 H. 6. cap. 10. it is provided, That upon every 
, )de cap. 13. indictment or appeal by which any perfon dwelling in any other 
county then there where fuch indiftment or appeal is, or fliall be 
taken of treafon, felony, and trefpafte, &c. before any exigent 
awarded, &c. that after the firft writ of cap^as^ another writ of 
capias fhall be awarded direfted to the (herif of the county whereof 
he is or was fuppofed to be converfant in the iiididmeat, &:c. 
otherwife the oiltlawry to be void. 
l^ H, 6. I, 2. In an appeal in the kings bench in the county of Dorfet where 

the appellee was demurrant at Chefter, procefte continued until! 
he was outlawed without any capias into Chefter, and it was object- 
ed that the capias could not iiliie into Chefliire, for it is a franchife 
into which the kings writ runneth not. Holden at the common 
law for certain things a writ ftiall idlie to the franchife of Chefter 
as for treafon, and tiie ftatule is made by authority of parliament, 
and is generall as well within franchife as without, and therefore 
the aift bein;; generall ftiall be taken generally to extend into Chef- 
ter, quod conceditur^ .but this is a leading cafe, 

Vid. lib. Int. Coke, fo. 230, 231, 252, & 296, 297. See an 
a£b of parliament. Rot. par. 9 H. 4. nu. 45. touching adjornment 
in pleas. 


Ca\->, 38. The County Palatine of Durham, 2j6 

Of the County Palatine of Durham 

THIS is alfo a county palatine by prefcription parcell of the 10 E. 5. 41, 
biflioprick of Durham, which was firft raifed, as it is faid, ** ^- 3- Voo- 
foon aiter the time of William the Conqueror. ^^Te'^^R^ ^^ 

Yet 1 find that this county palatine hath been qucftioned (but 'f^ijii 54. '^^'u 
with evil fuccefle.) For at the parliament hoi \cn anno 11 H. 6. 4. Vouchee 
Thomas bifliof^ of Durham prayed a conn liflion under the great 39- 11^.4. 
feal to certain there named, who by v«rtue thereof fat and inquired +°' *^ ^- ^• 
at Hartlepole being within his county palatine of the rights of the ]l* J1[* 'j', £*[ 
County palatine with all the dependents. Whereupon Sir William g. 1 Mar. flat. 
Kure knight the kings atturny made divers obje6tions, that the bifliop 2. ca. a. 
ought to hiive no county palatine, neither liberties royall. On the ^''^- P"- '^ H. 
contrary part the bifhop produceth his proofs, and the matter on «* "«* *^* , 
both parts ferioufly debated. In the end judgment was given in plfch. a/l^ i 
pari ainent for the bifliop, and that the faid inquifitions returned rot. 5. a noub^ 
ill the chancery or elfewhere (hould be vod. See the record be- rccora for the 
ing ver)' long, and vet wonliy tiie reading. L'-'lk'^^'^'/n '^ 

When the bifhop hinifelf, that ought to doe juftice and right to „Ime. 
others, will doe injury and wrong wichin his county palatine, and 
that he cannot be a judge in his own caufe: fee a notable record 
intituled thus. Recoulum coram domino re^e porre^um per manm WIU 
iie^m't de Bereford et Rogert dc Hdgham jufikiar domtr.i regis ad quere- 
lus infra libertatem epifcopatus DuneM audiend^ et terminand^ ajignat* 
;v Liec ve ba. 

P Licit a ai>ud Dunelm' coram Willielm') de Bereford et Rogero de Heig' Pafch, 30 £• 1. 
ham jufiiciariis dom'ini fegis ad vetaes querelas Ricardi prior is Dunelm* 
(t aliorum hominum epifcopatus ejufdem do.mni regis prius pone^as et ncm 
Jetcrminatas audiend^ et terminand affignai* . 

Ricardus de Hoton prior Dunelm'' qu'.ritur de * Anthonio epifcopo Du- Northumh, 
n6lm\ ^c. The record is long, but therein you (hall obfervc fe- Dunelm. 
vt-rall plaints of the prior againrt the bifhop, whereupon ilFuesare * This wax Afv. 
joyned, and verdidls given againft the bifliop, and judgments given *!!°"A^"*'*i°* 
worthy the reading. By record it appeareth that the bifliop gr'atnelftV* nt- 
had within the county of Durefme regalitatemfuam. vcr any biihop 

I find aifo another record in the fame kings time, viz, wai, Woolfi^ 


Placita coram domino rege apud Wefm* de termino Seuifii Michaelis Mich. 34 E. |. 
anno regno regis E. Jilii regis Hnrici ^^.fniente, 34 ro. 32. Coram r<j« 

Dominus rex mandavit hieve fuum epifcopo Dunelm* in futc verba, 
^diuardus dei gratia rex Anglia^ dominus HiberniiTy et dux Aquitani4!t 
vcnerabili in Chri/io patri A. eadem gratia epifcopo Dunelm* falutem. 
Cum Odelivo filia Ricardi de HurcheviMrth^ Matdd* <ie Su.ynebume^ et 
Ricardus Boiche^ et Agnes uxor ejus arraniaverunt quandam afjifam 
mvtis antic ff lis it frn libertatem veflrani epfcopatus pradiB* * coram * Juft»ce« of th« 

,....,, ,, ^■.:.:„^„„, Guy,lu.,J,M '■':■ • " ^- T'.rffy J:,'^7„„ ,^. 

P^ trttOB, 


3^ E. 3. Vouch. 
97. 14 H. 6. 
fo. 3. 

33 E. 3. Voucher 
165.45E.3. 17. 
Vid. 19 E..3. 
triall 66. 19 E. 
3. jurifd. 29. 
33 E. 3.ib. 57. 

45 E- 3- 
Viuie 50. 

19 H. 6. 5a. 

Dier 12 El. 288. 
V(kich was the 
cafe, of James 
bi/hop of Dur- 

Vouch. 39. 
36 H. 6. ib. 49. 
^ Praerogativa 
teg. cap. I. 

16 E. 3. tit. 
Livery 29. 

Glanv. li. 7. c. 
20. Bra<3- 1. 2. 
fo. 85. 9 H. 3. 
prasr. 25. 21 H. 
3. ib. 26. 
* Prsr. regis 
ca.' 3. 

Trin. 38. EJ. in 
curia wardoium. 

The County Palatine of Durham. Cap. 3S. 

pleaded. At which day the tenant was efibined, and a day- given 
over. At that day a writ came to remove the record in the 
common bank, and a day given to the parties in the common 
bank, and this proceeding of the bifliop was accordino- to the 
nfage there. And after by the advice of the whole coiirt^ a -j.^nire 
fac" iffued out of the common bank to try the ifTue jovned at 

If a man in the county palatine of Durham vouch a mreipner 
to warranty, the demandant may counterplead that the vouchee hath 
aiTets within the county palatine for the delay. 

In a writ of trefpalfe des biais emportes deins un certeine ville.^ the 
defendant faid, that the place where the plaintife fuppofed the 
taking away, is within the franchife of the B. oi Durham, where 
the kings writ runneth not, but is a franchife royall, judgement de 
breife. Whereunto the plaintife faid, that the defendant came in 
by diftrefle, and fo the court feifed of the plea. Finchden giving 
the rule of the court faid, the court is not in this cafe feifed of the 
plea, but that fliould be where conufance or franchife is chal- 
lenged, which lieth not in this cafe, but the bifliop hath franchife 
royall into which the kings writ runneth not, and therefore for not 
denying of the exception the writ abated. Note ihe towne wherein 
the tranfitory trefpafTe was alledged by the plaintife was within the 
county palatine. 

If the tenant vouch two, one within the county palatine of Dur- 
ham, and the other at the common law, fummons fnall be awarded 
to the lord of the county palatine, commanding him to fu nmon 
the vouchee to beat a certain day before the juftices here to trv the 
warranty: in this cafe if the tenant recover in value, thejufticeis 
lliall write to the lord of the county palatine to render in value, 
qtiodfuit concejjlim. 

See Dier 12 El. where he that h.<i\h jura regalia fhall have forfei* 
ture of high treafon, whereof w^/(? before in the chap, of the County 
Palatine of Lane. 

* If the one be vouched, and the tenant prayeth that he may ba 
fummoned in the county of York, and the county };alatine of Dur- 
ham, the voucher fliall fraud, for if he be fummoned in the county 
of York, it fufficeth. 

* Dominus rex hahehit cuftodiam cmnhm tcrrarutn eoyum qui de ipjh 
fe?ienf in capite per fervicium mi lit are ^ de quibus ipji tenentes fucr'' jeijiti 
in domin'co fuo ut de fecdo die qjio ohicrunt de quocunque tenuerunt per 
hujufmodi fervicium, ^c. exfeptis feodis efifcopi Dunelni' inter Tine ei 

I. This exception extendeth not to the body. ^. If the bifuop 
did after this ftatute purchafe any feigniory between Tine and Tefe 
it extendeth not to that. 3. That before this ftatute, the king 
ought to have had the wardfhip of the lands, as appeareth in our 
books, contrary to Poles opinion in this cafe. 

* The third chapter of the faid ftatute of prarogativa regis doth 
give the king primer feifon, &c. without any faving of the bifliop 
of Durefme. 

Sir Thomas Gray knight was feifed in fee of the manner of 
Chilhngham in the county of Northumberland holden of the queen 
by knights fervice in capite^ and of the mannor oi Rolfe in the 


Cap. 39. The Fianchife of Ely. i'219 

county palatine of Durham holHc n of the bifliop of Durlwm hv 
knights Icrvice incapite^ and died feifcd of both, his fonne and hcfr 
of full age. And although on the bch.ilfc of the bifliop forii<- ( 
dents were (hewed in like cafe, yet the two chief juftit cs I' 
and Anderfon prima facie did hold, that the primer feifon of ana i( . 
themannorof Rolfe belonged to the king. 

The town of Crekc in the county of York holden of the bifliop ii E. 4. jaxiM. 
of Durham, 5cc. Ihall be imj)leade(f within the county palatine of pi- 61. 
Durham, and in no other place : and fo is the manner of Howden 
in the county of York. 

The king (hall have the temporalties of the blHiop of Durham, 5R. 2. trUII^ 
and for a church that becommcth void the king (hall Iwvc a quare 

See the ftatutc of 5 El. ca. 23. concerning the writs ofjignifica' 5 El, ca. 23. 
vit and excorn' capiendo.. 

It was holden by all the ju(^ices, that if a man be furety for an- u E, 3. 49. 
other to keep the peace, and after he breaketh the peace, and the ' ^•.4- ««'• 
furety hath lands in the county * palatine of Durham, the king (hall p fj%*^'' 
command the bifliop of Durham or his chancclor to do exe- ♦f 020 1 
cuiion. And fo it is in the other counties jwlatines. In the fame '• ^ 

manner it is of a ftatute ftaple, &c. Recognizances, &c. 

Vide 9 E. 3. fol. 58. 17 E. 3. fol» 56. rot. pari, r F. 6. r^t. r '* 
7 E. 6. part. 8. 1 Mar. cap. 3. 

Of the Royall Franchife of Ely. 

IN divers ftatutes it is named the county palatine of Ely. King 33 H. 8. cap. to. 
H. I. in the 10 year of his reign, of the rich monaflerv oi 5 EL cap. 13. 
Ely made a cathedrall church, and of the abby made a bifhop- 
rick, and for his dioceffe a(rigned unto him the county of Cam- 
bridge, which before was within the diocefe of Line*: in recom- 
pence whereof Robert Bluet bifhop of Lincoln, then ehancelor of 
England had to him andbisfucceflbrs three man nors, parcell of the 
poflefTions of the abby, viz. Spaldwiche, Bicklefworth, and Bug- 
den. And for the chapter of this new bilhop, he in(fituled that 
there (liould be a prior and covent. But in refjje^t of the re- 
venues, for that their principall mannors were granted away, the 
number of monkes being 70 were brought down to 40. And king 
H. I. granted to this new bi(hop and his fucce(rors y«ra regalia 
within the Ifle of Ely. But the faid prior and convent were in the 
reign of H. 8. fupprelTed, and in ftead thereof a dean and ; 
daries were raifed to be the chapter of the bifliop, and a gi 
fchool for a mafter and 24 ftholars. 

This royall jurifdi£tion the bifliop hath by prefcription grounded 
upon the faid grant as well in pleas oi the crown, as in commou 
pleas before his iuflices. 



Trln. 3 E. i. 
Rot. 62. Coram 
iRogero de Scry- 
ton et focilB fuis 
jufticiariis de 
banc. Trin. 
j6 E. I in com- 
muni banco 
Rot. 89. Cant. 

3 H. 6. triall 2. 

Lib. Int. Raft. 


The Franchife of Ely. 

Cap. 39. 

45 E. 3. S. 

5 E. 2. conurms 
*8.2i E.4. 35. 

24 E. 3.conu- 
fans 74. 20 E. 3. 
ibid. 85. 49 E. 
3. 24. See 23 E. 
3. 22. accord. 

The liberty of thebifliop of Ely hath been anciently allowed by 
the court of common pleas for lands in Wifbichj within the ifl^ 
whereof ^ prtecite quodreddat was brought. 

Again, Allocatur libertas ep'ifcopo Elienji pro terris infra hifidnm de 
Ely prout aliasyfcilicet in rotulo Martini de Littlebury etfociisfuis annis 
55 69* «;6 H. 3. a7ino 14 regis nunc coram Thoma de tVayland etfcciis 
jut's. Item Mich. 16 regis nunc. rot. 27. 

In trcfpafle the defendant pleaded an arbitrament mad^ at A. 
in the Ille of Ely, and thereupon ilTue was joyned, the plaintif 
Ihewed that Ely is a franchife royall, and they of the ifle iliall 
not be impannelled out, and prayed a •venire fac^ to the Iherif of 

lifue being joyned and the vifne to come cut of Ely, the entry 
ib', Super quo prcediB^ ( querevi) dicit quod E. prcvditV ejl infra infulam 
EHens\ qucdqiie epifcopus Ellens'* talem habet libertatem in ijifula pr^~ 
diHa^ quod jjidlus jujiiciar'' nee aliquis minifter domini regis infulam iU 
lam ingredi debet ad allquod officirmi ihi exercend\ nee liberi tenentes nee 
r<fidentes in eadcjn infula illafn ingredi debent ad aliqua-m jurat am extra 
Infidam iUamfaciend\ et petit breve domini regis de venire fac' hie 12. 
de vicineto de Soliam, qua cjl propinquior villa in pradiSi- com\ CantaP 
extra infulam priediSf adjacen'' pnedi^^ villa de Ely ad triandum ex- 
itum prced'' . Et quia vidctur jufticiariis hie quod pet it io ilia efi rationi 
eonfonans^ ideo prcecept'' efi vic^ Cant'' quod vemrefac* hie tali die 12, de 
*uicineto illo^ per quos, ^c. 

Sentence was given in the ecclefiafticall court in Cambridge, 
and the defendant was fummoned a*: Hadington in the ifle and 
franchife of Ely, as he might be, for where the adion is intire, and 
not feverall, whereof part is within the franchife and part without, 
the franchife fliall not be allowed. As if one take a man in a place 
at the common law, and carry him into a franchife and there itii- 
prifon him, this court fliall hold plea, quia mag'is dignum trahit ad 
fe minus d'lgymm^ ^^f^ ^c fmilibus. 

In an allien of account againfl one as baylif of lands in H. and 
A. and H. is within the franchife of the Ifle of Ely, and becaufc 
the plaintif might have charged the defendant as bailif of A. and it 
is no reafcn that by joyning of them in one writ to diflierit the 
bifhop of his franchife, the writ abated. 


Cap. 40. The County Palatine of Pembroke. |ax 


OF the County Palatini of Pembroke. 

THIS was an ancient county palatine within Wales, and the Rot. j>nlumfnt« 
earle was c^mes palatinusy and h^Ajura re^nlia^ and all things Hil, li K. i 
irloncrina to a counfv nalatine. bur the lnrffHiAinn h<»r*'nf tva« f^. 6. 7otut 

belonging to a county palatine, but the jurifdi£llon hereof was ^"- ^ '^«"'* "*" 
taken away by the ftatuteof 27 H. 8. cap. 26. the county palatine ^"^^^f/"-' 
then being m the kings hands. ,, ^Au.t ca^uL 

And for further proof that it was a county palatine, fee the char- etfi)^iHum, &c. 
tcr of E. 3. to Lawrence de Haftings in thefe words. 27 H. 8. cap. 26. 

Rex omnilms ad quosy ^c. falutem, Sciatis quod circumfpeflienis et Carta legii E.3. 
Ae^antla prfffagium quod ex apt is confanguinei nojiri charijjimi LaurenlU j-"j*^ ^ Oaob. 
dc Hajiingi juventuiii aufpkiis concepimusy merito ms inducunty mt ipfum r©. pau 15 E. 
in his que honoris fui debitam con/eivationent refpiciunty pronis fciroribus 3. m. 12. 
profequamur. Cum itaque heredltas bona memorise Audomari de Valen- 
iia comitis Pembrochia (ut dicitur) jampridfm Jine hcnede de corpore/u9 
proa-eato deccdentis ad forcres fuas fuerit devoluta^ inter ip/as et earum 
haredes pioportionabiliter dividenda : quia con/fat nobis quod prafatus yott \\tn that 
Laurentius qui diB^ Audomar'' in partem harcditatis fuccedit eft ex ip* the eldcft fifler 
Jius Audotnari foTore feniori defcendens^ et Jic peritorum ajprtione^ quos ought to have tht 
fuper hoc confuluimuSi fibi debeatur prarogntiva nominis ; et tumor is jh/- ™*' °''» "?<»» 
turn et debitum reputamus ut idem Laurentius exfenioriforore caujam ha* ^-^^ learned 
bensy ajfumat et habeat nomen comitis Pembrechi^y quod di^us Audo" mtn, 
marui habuit dum vivebat: quod qui dem (quantum in nobis eji) Jibi Prarro* atlra ef 
confirmamusy ratificamusy et etiam approbamus ; vclentesy et conctdentes hopor comkU 
ut diflus Laurentius pnerogativam et honorem comitis palatini in terris palatini. 
quas tenet de hareditate diQi Audomari, adeo pkno, et eodem modo ha- Sjcut Auddm»- 
beat et teneat^ Jicut idem Audomatus illas habuit et tenuit tempore quo '"*'** 
deceit. In cujus, ^c» TeJU rtge apud MmUm Martini die OAob, 
0uino rcgni 1 3. 



The Court of the Cinque Ports. Gap. ^i. 


<Df the Franchife of Hexam and Hexamfliirc- 

a H. 5. cap. 5. 
9 H. 5. cap. 7. 
S E. 4. cap. 2. 
33 H. 8. cap, 10,, 13. 

'T'HIS was fometime parcell of the pofleffions of the archbifiiop of 
-■■ York, and claimed by him to be a county palatine 

At the parliament holden in 2 H. 5. it is refolved that Hex- 
amftiire was a franchife where the kings, writ went not. 

And in the ftatnte of 33 H. 8. it is named a county palatine. 
But at the parliament holden in anno 14 Ehz. it was ferioufly 
examined, and in the end four conclulions were enatfted by autho- 
rity of parliament, i. That whiles it was in the hands of the arch- 
bifhop it was tearmed and named a county palatine, where in rio;ht 
or proof there was none fuch. 2. That it is within, and parcell 
of the county of Northumberland. 3. That al pleas of the crown, 
and fuits between party and party fhall receive like triall, &c. as the 
reft of the fubje(5ts of Northumberland ought to have, 4. That the 
ilierifand other officers ofthe county of Northumberland may exe- 
cute his or their office, &c. within Hexam and Hexamfhire. So 
as whatfoever it was before 14 Eliz. it is now no county palatinej 
lior franchife royall. 


Of the Courts of the Cinque Ports^ 



Lib. Int. Raft. 


A T the firft the priviledged ports were but three. For at 
■^ making of the book Oi Domefday, which was in the 14 
of the Conqueror, there are but three named in that book, viz. 
Dover, Sandwich, and Rumney, and that thefe three in the time 
of Edw'ard the Confedor were exonerated of fuch charges and bur- 
thens, as others did bear; after two ports were added to them by 
the Conqueror, viz. Haftings and Hithe. 

Bradon who wrote in the reign of H. 3. nameth Haftings, Ro- 
muall, Heya, * Dover, and Sandwich to be the five ports. Of thii 
number of five were thefe ports called the Cinque Ports, as it ap- 
peareth by a writ which Bra£ton rehearfed in the fame place, viz. 

oe Boloftia veiiit ^ • 

ad conqueftum tempore Willielmi regis bailardi, et in illo conqueftu perqulfivit wardam de Dovcria 
in feodo et habuit, et tenuit toto tempore prsedict' regis Willielmi ufque ad tempus regis Henrici, 
avi legib Honrici fii" regis J'ohannis, etdidtus rex Hen. avus dedit didlo Piiarano 60. libratas terrse 
ia (.-Ichambio pro D^veria, viz. inanerium de Wendovre pro xl. libr. terr*, KingfhuU pro x. libf". 
ui:x, tt 7 hidasi" Eton pro 10 li. terrae; In lib. de Abbathia Miff. io. 114. 

Fex Vic'' Ncr^. et Snjf. falutem. Scintis quod fommomri fecimus ad 
talcm diem a^td Shcpiuty cmnia placlta di Qjdnque P 01 tubus -^cut tcv.eir 


Uraa. li. 3. 
f. \ 18. 

* Memorant^um 
quod Pharanus 

In Dorf. etrt. 
anno i Re. Jo. 
pa.te 2. m. ii. 


Cap. 42. The Courts of the Cinque Ports. 222 

JehcMt^ etfoUnt cw,im fufiicirt'iis ttMit Shipivey. Ft iilen tibi fttropi' 
mus quod hocfchi facitti himinilms tl- Jfrn^frtnoe, tt balivis de Dwrvoix^ 
itrt <fU9i1 fi aliquis cwtquni volunit / fit de Itbolnte vtl infra 

lihertftttm (lainqur Pcttuum, tunc j >f<v}€y coram pnrjatis juf' 

ticiaiiii no/iru (jmcrflam fuam propoJitHtus^ tt juftitiam inde rctfptmus, 
Tefify Cs^f. 

After two more, viz. Winchclfcy and Rvc were added : for T 
find a record annn i rcgif Johannis* auod Winchtlfey ct Rye debent 
ejfc in attxdi::M vilU tie Hajtings ad faciend* regis fcrvicium 20 na- 
vium^ Cifc, 

And thefchavc the fame franchifes and liberties that the former 
had; and every one of thefe fend two burgcfles by the name oi ba- 
rons of the Cinque Ports to the parliament, as by the records of the 
return of them remaining in chancery at every parliament doth ap- 
pear. And albeit two be added, yet they hold their former name 
of the Cinqiie Ports. Thefe poits or havens doe lye towards France, 
and therefore prudent antiquity provided, that tlxy fhould be vigi- 
bntly and fccurely kept, for performance whereof thefe ports liave 
a fj)ecirtli governor or keeper, called by his office lord warden or 
keeper of the Cinque Ports, and is alfo admirall, and hath the ju- 
rifdi<5tion of the admiralty amongft their, and is exempt from the 
admiralty of England. This warden in former tiiDCs was ever a 
man of great fidelity, wifdome, courage, and experience, for that 
he had the charge of the principall gates of the realm. He is alfo 
conliaWe of the caftle of Dover, his jurildi^cion as conftable 
is limited by the flatute of Afic/u/^et- Cartas^ anno 28 E. i. which 
vou may read, and the exjxjfition thereof in the fccond part of the 

The franchife of the Cinque Ports hath been time out of mind 
partly by ancient parliam.ents, partly by ancient charters, &c. and 
confirmed by exprcfle nane by the ftatute of Magna Carta, ca. 9, 
and were made five by William the Conqueror. 

For the belter underftanding of our books ; it is to be known 
that there is a great diverfity between the principality of Wales, 
the counties palatines, &c. and the Cinque Ports. For Wales was 
originally no part of England, but county palatines were parrell of 
the realm of England and divided in jurifdiclion, and the Cinque 
Ports are parcell of the county of Kent, and yet ubi breve domini 
regis ndn currit^ but have not jura regalia^ and tliercfore regularly no 
writ of error did lie of a judgement in Wales, otherwife it is in the 
counties palatines. A judgment here of lands in Wales or in the ^ ^ ^^ 
county ixiiatine is void, but a judgement given here of lands in 3611.6.33,341 
the Cinque Ports is good if i^ni priviledgc be not pleaded, for they 
be part of the county, and the Aranchife may be demanded in an- 
other a£lion. 

And it is to be obferved that within the Cinque Ports there be 
divers courti, one before the conftable of the caftle of Dover, 
(whereof foniewhat hath been faid before) there be other courts 
vithin the ports themfelves, before the maiors and the jurats, and 
another which is called curia Quinjue Portuum apud ^hep'vaey^ whereof 
we ftiall f;icak hereafter. 

If any of the kings courtsdoc write to have a recorti in the Cinque *3 e 
ports, or fordoing of any thing within the fame, the writ fliall be 60. 
dirc(f^ed Conftahulario cajiri dc D<rjer^ et gardiano Quittqme PtrtuMm, for 

IV, Inst. 5 lie 

50 E. 3. 5. 

Artie. fupeiCart. 
cap. 1. 2. part of 
the Infticutet. 
» E. 4. 17. 
17 E.4. 16, 17. 
36 H. 6. 74. 
Fortffc. lib. 
Int. Raft. fo. 


JO H. 6. 6 & 7. 

Regtft. t'o. 

F. N. B. So. b. 

240. a. 

F. N. B. So. b. 
See I E. 4. 10. 
Rcglfl. 153. 

t Rot. pari, 
anno tS E. x. 
fo. 6. nu. 115. 
Inter Ab- 
batem de Fe- 
vei/ham et Ba- 
ron' de port de 


a 30 H. 6. 6 & 7. 
Dier 23 El. 376. 
Brook Cinqus 
Ports 2^. 
T^mpsH, 8, di- 
verfity des 

b HH. iS E. I. 
f. 6. Rot. par. 
nu. 115. Dorf. 
clauf. anno 30 E. 
1- m. 13. 

^ Curia Sluinque 
Portuum de Shep- 
ivey. Nota, this 
for the ftile of 
the court. 
See Draft, lib.' 3. 
Ubl fupra. 
'* 50 E. 3. 5. 
33 E. 3. lit. Ju- 
rifd. 60. 
1 E. 3. io, 2. 

49 ^' 3- ^4- 
1 I R. 2. bre. 
636.46 E. 3. 8. 
33 H. 6. 4. , 
8 H. 4. 7. 

* 39 E- 3- 17- 
30 Aff. pt. I. 
8 E. 3. 27. 
^^49 E' Z-^\- " 

The Courts of the Cinque Ports. Cap, 42. 

he is the immediate officer to the kings courts for execution of the 
kings writs within the Cinque Ports. For example : 

If a man plead a record within the Cinque Ports, and the other 
plead mil iid record, there fliall goe a writ to the conftable of Dover 
to certifie the record, for the courfe. is for the kings courts to write 
to the conftable, and he fliall fend to the barons, that is to the maior 
and jurats, to certifie him of the record which is before them, and 
he fhal certifie the kings court, and fo the conftable is the imme- 
diate officer to the kings court. 

Note, though books fay that the writs fliall be direfted to the 
conitable of Dover, yet the writ is to be directed Conjiahulario cajiri 
de Dover , ct ffardiano Qiilnque Portuum. 

A man hatli a judgment in any of the kings courts, and the de- 
fendant hath no land or goods but in the Cinque Ports, the plain- 
tif fliail have a writ to the conftable of Dover to make execu- 
tion. And fo it is if a man will have furety of the peace againft: 
any perfon v\ithin the Cioque Ports, then he fliall have a writ out 
of the chancery directed to the conftable of Dover, for the doing 

* Et quia in quadam carta d mini regis nunc continetm\ quod omnes 
quereLe verfus ipjos barones C^uinque Portuum apud Shepiuey terminari de- 
bent coram cufiode (^uivque Portuum^ py cecept'' eji Stephano de Penecejir 
nunc cujiodi quod partibus prt^sdidis coram co certum diem affignet et fac* 

jiijlicice co77iphr?ientum. 

* If an erroneous judgment be given in the Cinque Ports before 
any of the maiors or jurats, it fliall be redrefled before the conftable 
of Dover at the court at Shepwey, which court was raifed of an- 
cient time by letters patents of E. i. 

^ The court of the Cinque Ports holden at Shepwey adjudged the 
abbot of Feverfham (which abby was within the Cinque Ports) 
for his ofi'ence to be imprifoned, for the which the archbiftiop of 
Canterbury caufed the kings minifters of Dover to be cited into the 
ecclefiafticali court, &c. The record faith, Qtiiafecundum confue- 
tudimm regni aiprobatum, et ratioiie juris regii, ^nini/Iri regis pro ali- 
quibus qu^e ftcerunt rntinne ifficii fid, trahi non debeant. Rex prohibiiit 
archicpifcopo Cant'' tie molejiarifactat fnini/iros fuos Dcvor\ de eo quod 
abb At em cfe Fe''>)erfnam pro deli^o fuo incarcerajjent per conjidera- 
tione-m ^ curiae Q^uinque Portuum de Shepivey^ &c. The whole re- 
cord is worthy to be read over; this fliall fuffice for the end that I 
aim at. 

Vide pleta lib. 2. cap. 48. the Huftings apud Shepweye. 

^ The jurifdi(5lion of the Cinque Ports is generall, and extends 
as w^ell to perfonall adions, as to a6tio*:s rcall and mixt, or which 
touch the freehold, but fo it is not in ancient demefne, for regu- 
larly that jurifdiAion extends not to perfonall aftions. 

Jf a precipe be brought of land, part within the Cinque Ports, 
and part without, the whole writ fliall abate: et Jic de Jimilibus. 
* And there is a diverfity between a franchife to demand conufans, 
and a franchife, ubi breve domini regis non currit : for in the firft 
cafe the tenant or defendant fliall not plead it, but the lord of the . 
franchife muft demand conufans, but in the other cafe the defen- 
dant may plead it to the writ. 

*= The mannor of P. within the Cinque Ports was holden of the 
king as of the honour of Egle, and efcheated to the king for want of , 
/ ^ ' hcir^ 

Cap. 43. The Court of the Efchcator, &c. 224 

heir, the k\rz ^nrrrh &.r mr^nrtrir of P. tn nnothrr. An'l it U 
adn it of 

nn. : i the 

C XLIII. [225] 

The Court of the Elchcatcr, and of Commif- 
lioncrs for finding of Offices, 6cl. 

Til K gift of the office of efchcator bclongeth to the office of 14 E. j. cap. 8* 
the lorJ treafurcr, wlio oranteth the (aire by his <leed. He i H. S. cap 8. 
is to continue in his office but one year, > H. S, cap. a, 


For the derivation of his name, his antiquity, and fon.c part 
of this office, fee the firft part of the Inrtitiues, fec^. 4. where the 
ancient authors, and ninny aiithoriiies be quoit;d: be ouglit to be 
ieifed of 40. marks land, except cfcheators in cities and counties 

All writs originall of i/iem claujlt exiremum^ mnn.'iamus^ devenerunt^ 
melius tn<juirtn^^ qu<e plura^ t^r. are dirc(5>ed to hi.n to fi nde 
an office for the king after the death of his tenant, which held by 
knights fervice In capite^ or otherwife by knights ftrvice. 

This officer in cafe of efclteats for treafon, felony, or in cafe of 
wardlhi,), or primer feafon, may find .'uvoffice inriute oj'icii. But * h 3 ca a . 
in cafe of wardfliip, or primer {cMow, M he findc an otiice virtute ' ' ^' * ' 
oijUcHs if the land, &c. be of the yearly value of $. li. (or above) he 
(hall lofe every time ac fliall fit 5. pounds. 

Offices found bcf'»rc him virtute officii^ he may returne either in- Lib. t. fo. 41. h. 
to the' court of chancer)', or into the exchequer, Tiving at this Alton w^iodt. 
dav for wardlhips, or primer fcifon, whicii he njuH return into 4 4-24- 
the chancery: forby the ftatutc of 32 H. 8. cap. 46. the court of i» 
exchequer is barred to deale with the lame. And oftices fou; 1 
befb— '•=•" - ^tute brevis^ are to be returned by him into the chaa- 
cen . 

If wf :;: i y fofce of a writ, he ought to take the inqueft within a^ ^ j| 5^ ^ 
nrKincth next after the delivery of the writ, and he ought to returne s n. 6.' 16. 
the fame within a moneth after he takcth ' r" - ' ./^ ,g h. © -. 


8ec capit* e/chaetritr^ whereof the cfcni:iror m:iy iav^,v:irr : and Maj . Cart. 
the fiatutc <^ efchnitoribusy arnio 2q E. i. Vide Dier. 248. 240. i part, f* 160, 

• He is ri< ' !t' pro catalli^ felomim^ fu^lt'i'wrum^ it hujufmo*ii» *^/' ^ 

* All offi' )(.fore him, or commiilioners ought to be found * '^'y'*- 6 H. g, 
by the oatlics ot twelve men, every juror to have lands, &c. to bV#f. 8 c«&f 
the yearly value of 40 s. in the fame count}*, « and indented, and one 3 H. k. cj^ ». 
part ' alcd, and by him the other part, w! remain ' J4 *• y 
with a of thcjurj', and to be taken in ^ s, and **?• n 3* *• 
open pLitci. For fccret offices arc abhorred in law, lull u! vexation ^•^*^ M.»tfc«r- 
and charge, and never have good fucceflc. S*n ^6 ^jp ,f 

:> cither be nor the comn.iffioners can take any cnquell of in 

S % qu I 

225 The Court of the Efcheator, &c. Cap. 43. 

quiry of any other perfons, but fuch as be impanelled and returned 

by the flierife. 

1 H. 8. cap. 8. If he or the commiflioners fliall deny any perfon to give evidence 

3 ^' 8. cap. 2. openly in his prefence to fuch eaqiiefls as (liall be taken before him 

for the finding of an office, he (hall forfeit 40 li. If he, or the 

commiffioners, or any of them (hall refufe to take a verdi6l of the 

enqueft offering to prefent the fame, he Ihall lofe 100 li. to the 

party grieved. 

*4^- 3- 55* ^ An office found before commiffioners is as forcible in law as if 

it had been found before the efcheator. 

Sec tV.€ z. part The efcheator ought to take no fee by the ftatute of W. i. but 

of the InftJturc?, ^f the king onely, but if he find an office by force of any writ, and 

a^ H'eioi^p^i?. ^c^'^^<i'"g to the fame for the king, hee fhall have a fee of 40 s. by 

I H. 8. cap. 8, ' ^'^^ ftatute of 23 H. 6. but if it be found * before him by writ, or ex 

*r 226 1 #^''^» that the lands are holden of a fubje«5t, or if he find an office 

for the king virtute officii^ there is no fee due to him. But the com- 

niiffioners ought to take no fee at all, though an office be found for 

the king, becaufe they are not within the ftatute. 

a ^3 H. 8. * The efcheator finding an office for the king by force of any 

«^P- ^'^' writ, not exceeding the value of 5 U. fliall not take above 1 5 s. and 

fe 31 H. 8. the commiffioners can take nothing: ^ but the mafter of the wards 

cap. 46. may allow commiffioners, counfe flours, and feodaries their cofts. 

i2^E 'I*cav q' * '^^^ efcheator may make deputies, but fuch able men, for whom 

F. n! B. 100. c. ^^^ ^'^^^ anfwer, and that have fufficient lands in the fame county, 

9 H. 6. fo. 60. SiC. and the efcheator fliall certifie the name or names of his 

deputy or deputies, under his letters patents into the exchequer 

within twenty dayes after deputation made. And no deputy fliall 

•^ 5 E. 3. cap, 4. take upon him to occupy that office, except the efcheator hath 

Regifter, 177. lands to the value of 20. li. ^ And if any fub-efcheator be 

made, not having fufficient, he may be removed by the kings writ 

dire<5led to the efcheator defubefchaetore amovendo. 

« 21 E. 4.23. * If the efcheator, fubefcheator, or commiffioner, returne a 

F. N. B. 100. c. falfe office, an adion upon the cafe doth lye againft them by the 

I H. 8. cap. 8. p^^^y grieved, although thev be offices of record, befides the pe- 

o H*. 6.* fo.^60.* "^^^y of 100 I. by the ftatutes of i H. 8. and 3 H. 8. ^ The 

f Regift. io. ' oath oi the efcheator exprefling his duty, appeareth in the Regifter, 

301. b. fo. 301. b. 

C 10 H. 7. 7. b. 5 If I be poflefTed of the jroods of a man outlawed in trefpafle, 
and I deliver them to the efcheator, I am difcharoed, guod Brian 
affirmavh : for he faid that the efcheator is the kings minifter, and 
chargeable for the goods. 


Cap. 44. Univerfitics of Cainbr. and Oxford. 227 


Courts in the Univerfitics of Cambridge and 


T is true that each of tliefc univerntics hath divers cc'irt«, jiirif- LiheraDam tn6 
di«5\ions, and powers, by the charters of tiie kings of this fcimct* .re /.- 
reahne, divers of which were imt grantable by charter, but by •"'"' rr//»*/K*. 
authority of parliament, which being efpyed, queenc Elizabeth, 
(who could (we ri)eake it of knowledge) not onely Ipeak the lan- 
guages of French, Italian, and Spanifli, but was learned in the 
Latinc and Greek learned tongues, and excelled all others of her 
iex in knowledge both divine and humane,) for the great love and 
favour that her majeftie bare to her highnetre univerfitics, and for 
the great zeal and care that the lords and commons in parliament 
had for the maintenance of good and godly literature, and the ver- 
tuous education of youth wfthin either of the faid univerfities; and 
to the intent that the ancient privileges, liberties and franchifes of 
either of the faid univerlitie^, granted, ratified and confirmed by 
the queenes hiahncire, and her moft noble progenitors, might be 
had in great eltimation, and be of greater force and ftrength, for 
the belter increafc of learning, and the further fuppretling of vice: 
it was ^na<fted by authority of parliament holden in the 13. yeare 
of her moft^profperous reigne: 1. That each of tlie univerfities 
fhould be incorporated by a certaine name (albeit they were an- 
cient corporations before.) 2. That all letters patents of the 
queens highnelTe, or by any of her progenitors or predecciTors, 
made to either of the faid corporated bodies feverally, or to any of 
their predeceiTors of either oi the faid univerfities, by whatfocver 
name or names, the chancelor, mafters, and fcholars of either of 
the faid univerfities, in any of the faid letters jrairnts had beene 
named, fliould be good and effet^tuall, and available in law, to all 
intents, conftru<fVions and purpofes, &c. as amply, fully, and 
largely, • as if the faid letters patents were recited verbatim in that • j^^^^ ,t, .,-^ ^^ 
a<5t of parliament, any thing to the contrary notwithHanding. n*TjiJ ur.n ana 

3. That the chancelor,' m^.'^eVs and fcholars of cither of the faid effcauaiUowU. 
univerfities, and their fucceflbrs for ever, (hould feverally have, 

hold, polfefTe, and enjoy, and tife to them and their fucct Ifors for 
ever, all manner of mannors, &c and heretlitaments, and all man- 
ner of liberties, franchifes, immunities, quietances, and privileges, 
view of frankpledge, law daves, and other things whalibever they 
be, which cither of the (aid corporutcd bodies had held, occupied 
or enjoyed, or of right ought to have had, ufed, occup*. d, and 
enjoyed, according to the true intent and meaning of the let- 
ters patents whatfocver, any ftatiite, bw, ufvige, tuftome, or other ' 
thin^ or things, made or done to the cn^^'rr^ '^,^t .i-hn?fuiing. 

4. i'hat all letters patents of the oueenes her 
progaiiton or prcdcccflbrs, and all mannci «* ..w/v...vv, : -.;:fei, 

S 3 iaununiticsy 

and efiv£ti!aii 
words. Adus 

rum virtutibus 
cbftat res vexata 

227f' Univerlities of Cambr. and Oxford. Gap. 44. 

* Nota hoc. immunities, quietances, and privileges, leets, law dayes, * and all 

other things whatfoever therein exprefled, given or granted to ei- 
ther of the faid univerfities, by what name foever, be, and by 
vertue of this a6l fliould be eftabjlftied and confirmed, any ftatiite, 
Note thefe ge- law, ufage, cuftom, conftru6lion, or other thing to the contrary 

nerall binding notwithftanding. 

'' By this bleflcd a£l of parliament, all the courts, franchifes, liber- 
ties, priviledges, immunit'es, &c. mentioned in any letters patents, 
&c. to either of the faid univerfities (which were too long here 

* Haud facile to be rccited) * that they might profper in their lludy with quiet- 
eni^eigunt quo- nefle, are eflablifhed, made good and effect: uall in law, againft any 

quo 'v-mrranXo^ fcire facias, or other fuits, or any quarrell, conceal-. 
ment or other oppofition wliatfoever. See the letters patents of 
king H. 8. bearing date prhno Aprilis anno 14. of his reigne, made 
r ^28 1 to the univerfity of -Oxford : and other letters patents bearing date 
26 Aprilis, anno 3 regni Eliz. made to the univerfity of Cam- 
bridge, both which are by expreiTe name eftablidied and confirmed 
by the faid ai'^ of 13 Eliz. In which ad there is a faving to all, 
other then to the queenes majefiy, her heires and fiiccedbrs. Et 
fiC omnia in tuto. 

Touching the jurifdi(5lion and conufans of divers things belong- 
ing to the univerfity of Cambridge, fee the parliament roll of 5 
R. 2. nu. 45, &:c. till nu. 66. 

The maior, bailifes, and comminalty of Cambridge were ac- 

cufed, for that they in the late tumults and uprores confedered 

with divers other mifdocrs, brake up the treafury of the univerfity 

l^otafprchdohr) of Cambridge, and thereout took and burned fundry the charters, 

ifieancientchar- g^^,^ ^^ the faid Univerfity, and alfo compelled tlie chancelor and 

ter., recor s, ^ fcholars of the faid univerfity, under their common feals to releafe 

^c. or the uni- 1 r • 1 • 1 , rr n r i-i • 1 ir 

veifity ofCam- to the laid maior and burgeues, all manner or hberties, and alioi 
bridge burnt by all a6lions rcall and perfonall, and further to be bound to them m 
reheh, great fummes of money : whereupon it was agreed in forme fol- 

lowing: that one writ fiiould be direfted to the maior, baiiifes, and 
comminalty of Cambridge, that then were to appeare in the par- 
liament, and to anfvver (the forme thereof doth there appeare.) 
And that another writ in forme aforefaid fiiould be direfted to the 
nmor and bi?ilifes that were at the tinie of the offence, (the forme 
whereof doth there appeare alfo.) The maior and baiHfes that then 
were appeared in proper perfon, and pleaded not guilty, ne witting 
thereto; the comminalty by their atturneyes appeared at the day. The 
iiiaior and bailifes, that before were at the time of the offence, appear- 
ed alfo in proper perfon, and the faid maior anfwered, That he was 
not privy to any i^Lich acl, but only by compulfion of others, if any 
thing were therein done ; the which the kings learned councell then 
did difprove, as by the record appeareth. The burgelfes of Cam- 
bridge delivered into the parliament the faid two deeds fealed by the 
chancelor and fcholars, the one deed contained a releafe of all li- 
berties and priviledges with a bond of 3000. li. to releafe all fuits 
9gainft the faid burgefTes. The other was a releafe of all adion^ 
reall and perfonall, as there doth appeare. Upon the reading of 
which two deeds, they both were commanded to be cancelled for 
the caufes aforeiaid. After this the chancelor and fcholars aforefaid 
by way of petition, and in form of fundry articles exhibited, ftiew-. 
^d the beginning an4 whole difcourfe of the faid maior and bailifsi 


Cap. 45. The Courts of the Stannerics, ficc. 228 


cffc<5>iially and lar^rdy. Upon reading of which bill, it w.*w cfc 
inaiidcxi ol' the laid biirgclRs what they could lav, whcrfi^rt- tirir 
liberties late by the king conlirmed Ihould not be fcifed into the 
kings hands as forfeited. 

They require 3. things, vi... i. A opy of the bill, 2. Coun- 
ccU, and 3. Rerpii;ht to anfwer. To the co,.y of the hill ua^an- 
Avcred, that fithcn* c they heard the fan'ic, it lliould fufVuA , for I>v 
law they ought to have no copy. To counccU, it u 
wherein councell was to be had, they fliould have, wh: : 
tlien were apj)ointcd to anfwer to no crime or offence, but only 
touching tlieir liberties. After many dilatbry fliifts and fubicr- 
fuges, the Hiid burgefles touching their liberties only, having no 
colour of defence, fubmitted themfelves to the kings mercy and 
grace, faving their anfwers to all other matters. , The king there- Nora, by i€k of 
upon by common confent of the parliament, and by authority of v^i^'^»^tnx. 
the fame, feifed the fame liberties into his hands as forfeited. And Y'^' ****• P*'' 
after the king granted to the chancelor and fcholars aforcfaid, Nota'lJburb*' 
within the faid town of Cambridge and * fuburbs of the f-'.me the prov/ih a city, 
alfife, conufance, and correction, of bread, ale, weights, meafures, Noia, th- 
regrators, and foreflallers, with the lines, and amerciaments of <he "»> z^^' 
fame, yeelding therefore yearly at the exchequer 10 1. And ccr- *°"»*=" • 
tain liberties the king after granted to the faid maior and baillies, 
and increafed their former fee farm. 

This univerfity of Cambridge hath power to print within the 
fame o/nnes et o?nmmoJos libros, which the univerfity of Oxford hath 
not. See a notable record in parliament, 13 H. 4. concerning the Roc par. i; H. 
univerfity of Oxford, by the which it was decreed and adjudged *J" " ". 
by authority of parliament, that the popes bul fliould not impeach, *' 
or alter the right and cuftome of ^ny thing concerning that univer- 
fity, and therefore was difallowed, too iong to be here infcrted. 

CAP. XL V. r 229 ] 

The Courts of the Stanneries in Cornwall and 

THE flile of the court of flanncry is, and alwayes hath been, 1^ oji. ^f th 
Magna curia dominl regis ducatus fui Cornuhiie apud Crvkocnicn court. 
in com' Devon' coram A. B, cufiodc fiannaride diSli domim regit in 
di^o com' Devon. 

The officers of this court be the (leward, underwarden, &c. The officers. 

It is C3\\t(\ Jlannaria^ a JfannOy becaufe the lord warden hathju* 
rifdi<^ion of all the tynne in Cornwall and Devon. Tynnc is a 
Saxon word, and derived a tinnitu^ and the tynuers arc called finM- 

The jurifdiaion of this court is guided by fpeciall lawes, by cuf- i-j^^j.j,;<y <.. 
tomes, and by prefcription time out of mind, which {o hx as we j,^ 
find it to be allowed by the rcfolution of the judges, or by art of s«c ihc t;* ^\ 
parliament, we will recite. ^^^ lofla** 

S 4 U ^^' 

Mich. 4 "Eliz. In 

229 The Courts of the Stanneries, &c. Cap. 45, 

In cancellaria apud JVeJfm. coram Nicho, Bacon milite cuJiocV magni 
JigilliAngltcefroJiannatorihus^ die Veneris y viz. 14 die^Novem- 
hris anno regnt Elizabethce regime quarto. Inter Martinum Tre- 
ivynarde que^'' in cur'' Jiannar'' corn Cornub\ et Johan7iem KiUegrevj 
et Georgium Trezvynard defend. 
Where the 14 day of Oftober laft part, the matter in qiieilion 
touching the allowing or difallowing of writs of error, as well be- 
tween the parties aforefaid, as alfo for and concerning all other 
writs of error touching all caufcs determinable in the ftannary court 
in Cornwall, was by the order of the lord keeper of the great feal of 
England committed to the hearing and examination of Sir William 
Cordel knight mailer of the rols^and Sir James Dier knight chief 
jnftice of the common pleas, and juflice Wefton ; to the intent 
upon the due confideration of the caufe they fhould make report 
unto the faid lord keeper of their opinions and proceedings therein, 
as in thei/ judgements fhonld feem mofl agreeable to juilice and 
equity : who having accordingly travelled diligently for the un- 
derRanding of the truth of the premifes upon the deliberate hearing 
and examining of the caufe in the prefence ot the councell learned 
of both fides, and upon the perufing and confideration of the an- 
cient prefcriptions, cuftornes, liberties, and charters exhibited by 
the faid parties concerning the premifes, have this day made their 
report unto the faid lord keeper as foUoweth. That is to fay : 
that for as much as the faid plaintife could not, nor did not Ihew 
forth any record or prefident, whereby any judgements or execu- 
tions heretofore pafTed in any of the faid ftannery courts have been 
reverfed by writ of error in any of the queens majefties courts of 
her bench or common pleas: and for that it appeareth unto tliem 
that divers and fundry inconveniencies were likely to enfue by al- 
lowing of fuch writs of error, and upon other caufcs and con'fule- 
rarions them efpecially moving : they in their opinions think it not 
meet nor convenient that any writs of error fliould palTe or be fuf- 
fered in fuch cafe to reverfe any of the faid judgements or execu- 
tions. Upon which report made, it is this day ordered by the faid 
lord keeper of the great feale, that the order heretofore taken the 
15 of June lafi: pafl: made againft the lord warden of the ftanneries 
aforefaid, his officers and others mentioned in the fame, concern^ 
ing the not allowing or not executing of any writ or writs of error : 
and all and lingular the contempts contained in the fame order fup- 
pofed by them to be committed, concerning the not allowing or 
not executing of any writ or writs of error as is aforefaid, fhall be 
clearly fniflrated and void, and they and every of them clearly re- 
leafed and difcharged, any thing in the fame order to the contrary 
notwithftanding. And that the faid defendants and every of them 
fhall be at their hberty to take their advantage againft the laid plain- 
tife for their executions had or to be had in any of the faid (tannery 
courts according to the cuftome of the fame courts without let or 
impeachment of any writ or writs of error, or of falfe judgement 
fued or to he fued in any of the faid courts of the kings bench or 
common pleas. And that from henceforth, no writ or writs of 
error or falfe judgement be hereafter fued in any of the faid courts 
of the kings bench or common pleas to reverfe any judgement or 
judgements in any of the faid courts of {lanneries heretofore 
^ivenj or hereafter to be given, untill upon further confideration 


No writ of error 
lyeth upon any 
judgement in the 
ftannery courts. 
Vide fimile. 
Dier 23 Eliz. 
fo. 376. 

But judgements 
ihall be reverfed 
by appeal as in 
the next page 



Cap. 45. The Courts of the Stanncries, &c. 

of the ancient [grants and liberties of the faid courts of ftnnnarics, 
or upon fomc other fufticieni caufc or matter, it fliall be otherwife 
ordered and deterniincd by this court of the chancery. 

In camera Jlellata apMtl H^efltn* nram condlio ibiJem die Mercmrii^ 
viz, 29 fiie Novrmb. anno regni dn^r. Elix. Dei rrntia rej^ifne 
^ngliit^ Franciit^ et Hiherni^^ fidei d<fei:for\ idc.frpiimo i 564. 

Where a matter in variance been heretofore n oved, and 
dej^ending in this honourable court, between Martin Trewvnard 
plaintife, and John Raflcarrock, William Gilbert, John Kiilegrew 
the yonger, James Drcvve, and other defendants bv two fcverall 
bils exhibited into this court, whereof the lall bill containcth no 
other matters of effecl being not mentioned in the firft bill, other 
then the taking of certaine cattell of the faid complainant and 
others. And where alio it appeareth this prefent day, that the tak- 
ing of the faid cattell was by certaine of the faid defendants law- 
fully authorifcd for that purpofe by the fteward of the ftannery 
court of Penwith and caried into the county of Cornwall for iin 
execution upon a condemnation by judgement had in the faid court 
again ft the faid plaintife. Touching which condemnation the faid 
complainant hath complained as well in the court of chancery by 
bill, and in the kings bench by writ of error, as alfo in this court, 
as appeareth in the firft of the faid two bils here depending, mean- 
ing by fome of thcfe waves to call in queftion the vali lity of the 
faid judgement, and was out of the faid feverall courts by order 
difcharged and difmilfed, referring the proceeding upon the faid 
judgement to the order of the faid ftannery court, according to di- 
vers ordinances by divers ancient charters, cuftomes, and liberties 
belonging to the ftannery ratified by a6t of parliament. And where 
it doth alfo appear that the taking of the faid cattell, whereupon 
the faid laft bill in this court is exhibited was only for the execu- 
tion of the faid recovery. And where alfo it doth further appeare, 
that by the lawes and ordinances of the faid ftannery (if any fuch 
caufe of complaint be miniftred) the fame is to be redreffed by ap- 
pellation in feverall degrees, viz. firft to the fteward of the ftan- 
nery court where the matter lyeth, then to the underwarden of 
the ftanncries, and from him to the lord warden of the fame ftan- 
naries : and for default of juftice at his hands, to the princes privy 
councell, and not examinable either here in this court or in any 
other eourt. It is therefore this prefent day ordered, that the faid 
feverall bills of complaints, and the faid defendants named in the 
fame, with all the caufes therein mentioned, be forthwith difmifled 
out of this court to be determined according to the faid lawcs and 
ordinances in the faid ftannery, and not elfewherc. 

The refolution of all the judges (by force of his majeftics let- 
ters) concerning the ftanneries in Devonfhire and Cornwall 
upon the hearing of the councell learned of both parties at 
feverall dayes, and what could be alledged and (hewed on 
either party, and upon view and hearing of th*? former pro- 
ceedings in the courts of the ftanneries both before and fincc 
a certaine aft of parliament made concerning the ftanneries in 
* 50 E. 3. 
Firft, we are of opinion, that as well blowers as all other labour- 
errand workers (without fraud or covine) in or about t^e ftanne- 


Mich. 7 Elis. 
Rrginat in Ca- 
mera Slelliu 
19 Nov. 

Erroneous Y^fr 
menrs in the 
ftannery are to 
be rtTcried by 
appellation, and 
to whom this 
appellation &4U 
be made. 

Ternti. Micd. 
4 Jac. rrgia. 

• Sp« thil tA of 
pailiament here- 
after in tht« 

231 The Courts of the Stanneries, &c. Cap. 45. 

nes in Cornvx^all and Devon, are to have the privilege of the ftan- 
neries during the time that they do work there. 

Secondly, that all matters and things concerning the flanneries, 
^ or depending upon the fame, are to be heard and determined in 

thofe courts according to the cuftome of the fame time out of mind 
of man ufed. 

Thirdly, that all tranfitory actions between tynner and tynner or 
worker and worker (though the caufe be collaterall, and not per- 
taining to the ftannery) may be heard and determined within the 
courts of the ftanneries according to the cuftome of the faid courts, 
albeit the caufe of a^ion did rife in any place out of the tanneries, 
if the defendant be found within the llannery ; or may be fued at 
the common law at the ele(5lion of the plaintife. But if the one 
party c^nly be a tinner or worker, and the caufe of a<Elion being 
tranfitory and collaterall to the flannery do rife out of the faid ftan- 
neries, then the defendant may by the cuftome and ufage of thofe 
courts plead to thejurifdi(5tion of the court, that the caufe of aftion 
did rife out of the ftanneries, and the jurifdidion of thofe courts, 
which by the cuftome of the court he ought to plead in proper per- 
fon upon oath. And if fuch plea to the jurifdidlion be not al- 
lowed, then a prohibition in that cafe is to be granted. And 
if in that cafe the defendant do come to plead to the jurildic- 
tion of the court upon his oath, he ought not to be arrefted eun- 
do^ redeundo, vel morando^ at the fuit of any fubje£l in any corpo- 
ration, or other place where the faid courts of the ftannery fliall be 
then holden. 

Fourthly, if the defendant may pleade to the jurifdiftion of the 
court in the cafe before m.entioned, and will not, but plead and ad- 
mit the jurifdiftion of the court, and judgment is given, and the 
body of the defendant taken in execution, the party cannot by law 
liave any aftion of falfe imprifonment, but tb,e execution is good 
by the cuftome of that court. But if in that cafe it doth appear by 
the plaintifes own ftiewing,' that thecontraft or caufe of a<5lion \Vas 
made or did rife out of the flanneries, and the jurifdi6tion of thofe 
courts, or if it appear by the condition of the bond whereupon 
the a6lion is grounded, that the condition was to be performed 
in any place out of the jurifdift ion of thofe courts, then all the 
proceedings in fuch cafes upon fuch matter apparent, are coram mn 

Fifthly, we are of opinion, that no man ought to der^urre in 
that court for want of form, but only for fubftance of matter. As 
if an aftion be brought there for words which will bear no aiffion, 
or an action of debt upon a contraft againft executors or admini- 
ftrators, or fuch like: in fuch cafes a demurrer may be uf)on the 
matter. And that the proceedings there muft be according to the 
cuftome of thofe courts ufed tim.e out of minde of man : for that 
no writ of error doth lye upon any judgement given there, but the 
remedy given to the party grieved is by appeal, as hath been time 
out of rainde of man accuttomed. 

Sixthly, that the courts of the ftannery have not any jurjf- 
diftion for any caufe of adion that is locall, rifing out of the ftan- 

Seventhly, that the priviledge of the workers in the ftanneries 

do not extend to any caufe of action that is locall rifing out of the 

ftanneries (for matters of life, member, and plea of land are by 

3 exprefle 

Cap. 45, The Courts of the Stanncrles, ice. +231 

exprcfTe words excepted in their charters) ; c 

exempt from juftice. 

Vide !;b. Intr. Coke fo. 467. tit. Prohibition, and 
b. in error. Vide Flcta lib 6. cap. 7. § Sn^itia vro. 

Such charters, records, :.nd aAs of parliament as we have ob- [ 232 ] 
fervcd concerning the ftanncry» vc will according as wc h-ive done 
throughout this treatife recite in/en'etcm/cr.s. 

J l.t.nrcs fiei yrutiitrex Af-^lia\ tffc. Sciatis quo J intuitu DeK *t In Rpiiftm 
frof.ilute ammte nojita d dtmus rt oncrf^mus,, ac prtfntti carta nftra Ef" cop' F.ion. 
iOftfirmavimui Deoy rt eccltfia 6 'tr Pitrr Exon\ et v€nrrabili pntii * r^^'i W4» Sl- 
• Sintoni Exon* cpi/cofo (t fucc [foribuifuii Exon epifcopif dicimam dean- ^"'"jej,^ oT*'** 
tiqua firma Jlanni in com' Dcwn' et Cor nub. habendum /tbi ct fucccf York, and con- 
faribus fuii cum omnibus libertatihui ct liberis cwjududinihus ad earn ptf- frcrae bi/Koji. 
tinentibus per manus illius vcl ilhrum qui Jlanneriam habuerint in cufio- ' Johan. 

Rex Roberto de Courtney falutem. Mandamui vobis quodjine rftla- r^j ' j' ^ ^ 
tione (t difficultaie aliqua habere faciatis * Ifabella regitite matri nojirtr m. 4. 
/ianneriam com* Devon* cum cuneoct omnibus pertinent*, Tejle com* mare- * She was the 

Jchallo, ^c. ttr^^»r\i^^' 

* Rex concejfit Johanni filio Rici Jlanneriam in Ccrnubia^ reddendo ?^*gf^^ ^^"^ 
mille marcas. Simile ayino 5 H. 3. rotfinium. 'Rot. fin. 4 H.*. 

*• Rcx^ ^c. Sciatis quod comfiiiffimus Ric*o dileHofratri noftrojlan' b^^, paMoH 

neriam nojlram Cornubi<e cum o)nnibus pertin*^ ^c, 3, m. 9. 

* There be two feverali charters of liberties and priviledges both c r„,, p,^ ^^^^ 
bearing date 10 j^prilis anno 33 E. i. \.\\t one m2idt ad emendationem i- The liberties 

Jlannariarxtmmjlrarumin com* Devon^ and the o\.\\tr ad emendationem «^<* P'i»«l«dge« 
fiannariarum nojlrarum in com* Cornubi^, ^ which you may read J p*, ^^""'* 
at large in PI. Com. " Thefe charters were allowed in anno jjg' "** ^*^* 
35 E. I. «^ 35E. I. in the 

*" The charter of 33 E. i. was confirmed to the tynners of Dc- Jrrafury. 
von', dc verbo in verbum^ and the like in i E. 3. and 17 E. 3. ^Rot.pjt.4E.a. 

s Vide rot. Alntania^ anno 12 E. 3. part. i. nu. 17. An ordi- , *^y 17^*^ 
nance of the king by advice of his councell concerning tynne. 

A leafe made to Tuleman de Linberghe de cunagio Jlanneria et de Rot. pat.aiE. t. 
emptione totius Jlanni in com* Devon* et Cor nub* pro fine mille marcarum Vide Rot. pat. 
ci 3500. marcarum redditus. Thefe were things done de fado^ but »6 Apr. anno 
let us turn our felves to that, which hath the force of a law, viz. g ^* ^l5'J^'**'* 
^ an excellent declaration, limitation and expofition of the faid hRo^p^^'r^jj 
charters of 33 E. i. that was made in the parliament holden in rni. 3. hoidcn the 
50 E. 3. oy authority of the fame, but never printed, (which we Monday after 
have fet down in luec verba, to the end that no fyllable of the lame •!?* ^^^^ ^^ ^ 
Ihould be omitted) it is ena«5led as followtth. Gregory. 

A trefexellent et trefredout feignour le roy^Jupplicfa poure commune del 
county di DevonJJiire que luypleafe pet Vavys des prdats, countees, barons, et 
outer s/ages in ccjl prefent parliament ordeiner rcmedle decco que les eftey- 
uorsj et les minijlrcs del ejleynery dtl dit county ont long temps a la dit com- 
munefibien as fcigneurs come as autres fait, et font de jour in autre diver/es 
extortions, opprejfims et grievances per colour delesfranckifes a eux gr antes 
per les chartres mjlrejeigneur le roy^ et defies progenitors incontre la ley et 
le purport des ditT, chartres, et per lour malveis interpret at ion dicelies : et que 
les dits chartres et lesfiranchifies comprifies enycelUs puififientlcux et declarex 
fP article en article fi q; la commune du dit county puij/'cnt efilre apt is dtoi- 
twelment d^ycelks, ct que ceft declaration fioit mys en re cot d, EtfinuloT' 
ticleyfioit en les ditz chartrei que touche cufitomcs ou ufiages, que plefie a 
pojlreditjeignieur le roy ti'ofdeirjcr et mandcr en breifi temps fiujifiants jufi- 

Z$2 The Courts of the Stanneries, &c. Cap. 45. 

tices fe'igniours et autres apris de la ley a celles parties denquher des dites 
cujiomes et tifages^ et quils eyent pnyur d^oyer et terminer tous les confpira- 
cies^ confederations^ alUau?ices^ champerties^ extoytionSy oppreffions^ K^'^^~ 
vances^ fauxines et maifitenances qu'enx les dit% ejieynors' et lourminijlres 
mt fait a la dite commune^ cu a nul de eux qui plendre fe vorra, et ce 
auxi hien alfuit le rqy, come de la party entcndants que le roy nofirefeig- 
\ ^33 J ^^^^ ^^^ gaigner a molt, et d^ autre parte fe re-iuede ne lour yfo'it ore fait 
il%ferront en breife temps pur la greinder party d^fherites^ et de/iruitz a 
ioutzjours^ que Dieu ne voilla. Le temur d'' afcuns des articles de les dites 
chartres que lour hefoignetit de declaration fenfuent cy apres premerement^ 
ceji afj'aff avoir . 

Sciatis nos ad emendationem fiarmar'' nofir* in com'' DcjorH ad tranquil- 
lit at em et ut'ilitatern fiannatorum nc/irorum prcediBorum earundem con- 
cefpffs pro nobis et haredihus nofiris^ quod omnes fannatores prced' operaw- 
tes inftannariis illis quc-e funt dominica nofira^ dum operantur in eifdem 
fiannarils liberi fnt et quieti de placitis nativorum, et de omnibus placitis 
et qnerelis curiam nojiram et hceredum noflrorum qualitercunque tangenti" 
bus^ it a quod non refpondeant coram aliquibus jujiiciariis vel minifiris nof- 
iris feu lueredum no/lrorum de aliquo placito feu querela infra pradiiV 
flannarias emergentibus^ nif coram cufiode nofrofannariarum nofirarum 
prt^di^arum qui pro tempore fuerit^ (exceptis placitis terr^^ "jit^e^ et mem' 
brorum) nee non recedant ab operatio7iibus fuis per fummonitionem alicujus 
miniflroruni noflrorum feu ha^redum noflrorum^ nif per fummonitio7iem diHi 
cujlodis nofri, Et quod quieti fnt de omnibus tallagiis, theoloniis^falla- 
giisy auxiliis et aliis cufumis quibufcunque in •villis^ portubus^ feriis et 
mercatis infra com'' pradiilum de bonis fuis propriis^ ^'c. 

Sur quoy plrfe declarer f autres perfones que les cfainors operants in les 
efayncr'ies averont et emoyeront la f ranch fe grante per la dite chartrc du 
roy defcijiiie la dite chartre voet^ quod omnesfannatores pr^d'iHi oper antes 
infamiariis illis fnt liberi^ ^c. Et auters per formes que les overcurs^ cejU 
afcavoir lours maijires que les lovent et lours fervants et autres claymont 
mefme la franchife, Et auxint plefe declarer fi les d'it% cuercrs y ave- 
ront les franchfes en autre temps que quant ilz overont in mefme Veji- 
^nery^ dcficome la chartre voet dum operanUir in eifdem fannariis liberi 
fnt, ^c. 

Endroit de les dites paroles. Operantes in fannariis illis j et dum ope- 
rantur in eifdem fannariis^ foient clerement entendus^ de operar'i'is laboran- 
iihus duntaxat infamiariis illis f ne fraud e et dolo^ et non de aliis^ nee 
alibi labor antibus. 

Itemfoit declare f mefnes les over ours averont mefme les franchifes 
tant Come ils averont aillors que in les defmefnes que feurent au roy laiell 
no/Ire fignior It roy que ore ef. ha quel roy ayell lour grantaf la dite 
chartre autemps del dit grant des franchifes deficome la chartre voet, 
quod omnesfannatores pradidi operantes inftannariis illis qucs funt domi- 
nica 72oftra, dum operantur in eijdem ftannariis fnt liberi, td'c. Et Hz 
clamant d' avoir toutfoit il e'lnfi quils over out aillours qu^en les dites defmefnes 
le roy lay el. 

Endroit de cef article pur ce que ily a une autre article en mefme le 
V chartre, que lour donne conge et licence defover, in terris, maris, et vaftis 

ipfus domini regis et aliorum quorumcunque in com"* pr^dido, et aquas, 
et curfus aquarum ad operat'iones ftannariarum pra:diSiarum divertereubi 
et quotiens opusfuerit, et emere bufcum ad funduram ftannit fcut anti- 
quitus fieri confuevit, fne impedimento domini regis, haredum Juorum, 
f 234 1 epifcoporum, abbatum, comitum,baronuni, fu aliorum quorumcunque, ^c. 

Jlfemhle m befignabk cliofe en ce cafe que lour cuft times et ufagesfoient 


Cap. 45. The Courts of the Stanncries, &c. 234 

dili^srrmmciit enquix^ et que le ^nrde'me He Irjieynerie/oit choree que ii ne 
foeffre nul tnnour del dit ejlcyneric fovt r en prees^ ue autre h<yt^ nevf 
abate autry hoys ou autry mcafms^ ne hejlmxr caue m court Ae eatu per 
malice . Et Ji per cafe le dit gardein fe y vwra cxcu/er que let ditt 
ejfeyftors ny voillent oheire a/es maundemrnts^ ne cejfer lour malice put luy 
que tant toft il fe face monjlrer al grand cot fed le roy^ ct due et hajlive 
remedy ent feira ordcigncs. 

Item foit declares in fpeciall comen lesjujlices qu'ore ferrottt affignes 
dialler celles marchers fur ent fair e la dite enqunre prend ont liffue du pais 
f afcuny chiete enfre parties, et coment crjlc article precedont touchant U$ 
cujiumes ct ufages rjloit ufes devant lafefaunce de la dit chartre Vaiel, et 
per queux gents tielle iffuefrrra tries f cejlnfc avoir le quel per fweins fole^ 
ment, ou per ejlaynors feulment, ou per anibidrux, ^ic, 

Endroit de cefi article, en foit la lys pris du grant confeil et y foient 
les records en eyre fi nullcs y foient, et autres evidences et remcmlrancet 
deins le treafoiy le roy et aillours, et auxint les remembrances ties feig- 
niors queux y ont ejire pur le temps frches et duement examines, et 
auxint foient les liures et evidences quelles les dits efoynors ent ont en" 
vers eux venes et regardes, ifjint que Ic y purr a le mieltr, venir al droit 

Item foit declare f le gardein del ejlaynery puiffe tenir pke entre efiey 
nor et forein de querele fourdant ailloitrs que in les lieux ou ilzfont over ants 
defcome la chartre voet, quod cujlos mjicr pradi^us vel ejus locum tenens 
teneat omnia placita inter /lannatores pradi^os emergen' et etiam inter ip" 
fos et alios forinfecos di omnibus tranfyi ej/ionibus, querelis, et contraBibus 
fa^is in locis in quibus operantur infra ftannarias ptr^rdiSlas Jimilittr 
emcigen\ ^c. Quar^ il tient plee dc tieux queieles fourdants ckafcune 
parte deins la dit counte. 

Endroit de ccji article. Se ont extende la juriflifiion cl element folon 
les paroles del dit Cliartre, cejiaffavoir, in locis ubi iidem operctrii ope- 
rantur, et nemi aillours, ne en autre manner. 

Item plefe declarer de ceo que la dite chartre voet einfi. Et ft quijlan- 
natorum trcedi^orum in aliquo deliquei int per quod incarcerari deheant 
per cufodcm pradi^um arre/lenhtr, et in prifona nojlra de Leit^ord et mm 
alibi detineantur, quoufque fecundum legem et confuetulinem regni mfiri 
deliberentur. Et en cefi cafe que efrvnorfoit prife pur felmy et liverex em 
gardeiny il ef fuffert fwent aller a large de quoy grand per ill avient mmli 
defois et aujfi de ceo que la delivet ance del ilit gaolc nef pajje fait une 
foitz en dis ans. Et que pis ejt per coloiti- de mefme cefe article le dit 
gardtin prent hors dautre prifon les emprifones pur arreragesfur accomptSy 
et les mette a Lydeford ou ilzfont in tant fovores quilz my font force de 
jamays fair gree a lour feigniors, 

Endroit de cejle article en foit enqui% diVgemment devant les jttfliett 
que ore y ferront prof chemement aj^gnes denqueire per quelle authority ilxy 
fait einfy de puis que en mefme la chartre font exceptes per fpeciall tuufz 
plees de terre et de vie, et de membre, et celle enquefte rctwmefoit de- 
clare en efpeciallfl bufoigne. * 

And according to this aft a commiflion ifllied out in thcfc 

Ed-iVardus Dei gratia Anglict ct Francia rex et dominus Hiiemut RotMt.$oB.). 
dile^is et fidclibus fuis * Guidmi de Brian et Johanni de Mmtaj^^ [ 235 ] 

Roberto de Belknap, Hugoni de Segrave, Hmrico Perchaie, et ff^alter9 • Tbeiir two f«ir- 
de Clopton,falutem. Cum dominus Edwardus quondam rex Anglite mms tuu wen buoM 
rtofer per car tarn fuam quam confirmavimus ad emendatianem fteummri" ^J^ *^FY.Z 
mrumfuarum in com' Devon ad tranq-ji/litat^Ti, et utll-tatfm flatrnMrnrnm imin iJt fu%» 

235 '^^^ Courts of the StannerieSi &c. Cap. 45. 

fmrum earundem conceffertt pro fe et heeredibus fuis^ quod OJJines ft anna- 
tores pradini opcr antes in ftamtariis ills qua fuerunt dominica fua^ dum 
operentur in eifdem Jiannariis ejjent Ubtri et quieti de omnibus placitis 
nativorum^ et de omnibus placitis et querelis curiam Jiiam et haredum 
fuorum qualiterctinque tangentibus : ita quod non refponderent coram ali^ 
qutbus jujiiciariis vel miniflris ipjins nvi noftri vel liter edum fuorum de 
aliquo placito vel querela infra pradi^as fiannarias emerget^ nif coram 
Pleas of land, cujiode Jiannariarium prcedi^armn qui pro tempore fuerit : (exceptis pla- 
I e am mem er ^y^y^ terrce^ vita^ et membrorimi^) neC rccederenl ab operationibus fuis 
per fummonitionem aliquorum minifrorum diHi avi noftri feu haredum 
fuorum nifi per fummonitionem communem di^li cufodis, et quod quieti 
efpnt de omnibus tallagiisj t/ifoloniisy auxi/iis, fallagiis, et aliis cuf- 
tumis quibifunque in villis, por tubus ^ feriis et mercatis irfra coin' prce- 
di^um de bonis fuis propriis. Concejfrit etiam eifdem ft annatoribus quod 
fodere poffunt fannu7n et turbas ad Ji^mnum fundendum ubique in tcrris^ 
moris et vafiis fuis et allorum quorumcunque in com'' pradi^o^ et aquas^ 
et curfus aquarum ad operationem fannariarum pnediSlarum diver tere^ 
ubi et quoties opus fuerit, et emigre bifcam ad funduram ftann: fcut an- 
ftquitus fieri confuevit, fine i?npedimejtto ipftus avi noftri vel hcsredum fuO' 
Xum^ epifcoporum, abbatum, priorum, comitum^ baronum, feu aliorum 
quorumcunque. Et quod cuflos pradidus vel ejus locum tenens teneat om- 
nia placita inter flannatores prcedidos emergentia, et etiam inter tifos et 
alios forinfecos de omnibus tranfgrejftonibus, querelis et contraBibus faRis 
in locis in quibus operentur inf> a fannarias prtvdiSias fmiliter emergen'^ 
et quod idem cuftos habrret plenam poteftatem ad ftannatores pradidos et 
alios forinf CCS in hujvf nodi placitis jufticiandi et partibus juficiam fa~ 
ciend' pro t jujium^ et prius in fiamiariis illis fu'fjet uf latum, Et f qui 
fannatorum ptcediHorum in aliquo delinquant per quod inc arc erari debe- 
rent^ per cuftodem pr<^di5lum arrefarentur, et in prifona de Lydeford, et 
non alibi cuflodirentia\ et delivere7itur , quotfque fecundum legem et confue- 
tudinem regni Anglia delibcrarentw. Et f aliqui fannatorum pr<^' 
didorum fuper aliquo fa^o infra coni* pradiidurh non tangent e Jiann arias 
pradi^'' fe pofuerijit in inquiftionem patrice, una medietas juratorum in- 
quiftionis Jiufufmodi efjet de f annatoribus pradidis, et alia 7nedietas de 
forinfecis. Et de fado totalitcr tnngente fannarias prcediclds fierent in- 
quiftiones fcut fieri confueverint, fcut per infpeSlionem rotulorum cancella- 
rice nofra nobis conftat. Ac etiam ex clamofa iiifnuaticne ta7n magna- 
turn qua7n communitat'' com* pradiff in prefeiiti parliamento 7toflro gra- 
viter conquerentium ad nofrum pervenerit auditUTn, quod ftannatores prcu- 
didi ac oficiarii, balivi et miftifri did^ ftannaria cartam pradiSlam 
pro libiiofuee voluntatis interpret antes, etdebitum intelledum ejufdem car- 
ter pervertentes, et etiam excedentes, ac qui dam alii in magtio numero 
offer entes fe fore fannatores cinn 7ionfuerinl, habit is inter eos confpira- 
tionibus, confoedtrationibus, et alligantiis, qua?7iplurima extotfones, op- 
r 205 1 preffones^ falf tales, deceptiones, cambipartias ambidextras, 7nanute- 

*• nentias, tranfgrefftones, damna, gravamina et excefpis diverfs fubditis 

nojlris diB' com' colore carta fupradiHa per plures vices fecerunt, et i7i- ' 
dies facer e non defftant in nojiri contemptum et ipforum conquer entimn 
grave prajudiciitm, did'' com'' verifmilem defruBionem et evcrfionem 7na- 
nifefam. Nos aff'eilantes fngidcs fubditos no/trosfib qu'ifAo et deb it o rc- 
gnnine gubernare, et noleiites tanta malefcia,f per pradid* Jiannatores, 
officiafios^ ballivos vel minifros^ aut alios qufcunque psrpetrata exifunt, 
aliqual'iter tranfne i?:'ipunita ; ajftgnavi772us vos, quinque^ quafuor^ tres et 
duos veftrufn^ (quoru7n vos prafat' Robert^ mum ejfe ijolumus) juftici- 


Cap. 45. The Courts of the Stanncrics, &c. 236 

arios ncjlroi (iJ ittauiirnilu'H f>rr ptcrnmenlum prof 
nufn de ccHi' pttiiu^V tarn infra I'lUrtatti qunrrt ( 
tat tnelius I ' , rt aitjs 1/ 

quibkfcutic- niSuit cor/ 

oppr(ffion'ihui^ Ja '.'. , .irr ;!■ : , ifHis^ amt:<it xtm^ /;.«- 

nutfKcntiis^ /;<7'/;^ Iv. . , -//•.. , .niv^us et cxcfffibui per 
qtafcunquejlannatora vcl rdioi in com' praruiJI' faiHiSy et pet ^voi, tW 
per quem^ quihus perfonisy ubi et tjuibui temf^rihuu qualiter et quomrrio, ft 
dc aliis aiticttUs et circumfiattttis p> - uuque 

pla:ius irritatem ; etadprttmijpiom. .m nd Jrn 

tram quam difiorum conqucrentium et eoyum fi.i^uLrum et aVtorum quotum^ 
cunque pro nobis^ eudt pro feipfis profequi volant inm^ audientV et termi- 
naruT fecundum l(?em et confnetudinem re^ni nojiri An^liee : fahisfem* 
per difiis jlnnnatoribus liber tatibus et privih^iis eis per cartam pnediflmn 
cmceJIfis^ Et ideo vobis metndamus quod ad ccrtos diem et I c: qucs -:•«/, 
qubtque* quattior^ tres vel duo rc'irum (quorum rjx frirfat'' RfJrrf* i/ru^t 
cjje volumusj ad hoc provide 

fitiomei\ et confpirationciy r , . .. 

jhrics^ faljitatcty diceptionesy cambipartias^ nmbtdextras^ maftutenenltaSj 
trarfi^effionesy damna^ gravamina^ et exccjjiis pradi&J. audi at it et ter- 
minetis in forma pr^diHa^faSuri inde qud ad jujiitiam pertinet^fccun" 
dum legem et confuetudinan I'cgni nojiri Anglite, Salvis nobis amercia- 
mentis at aliis ad nos inde fpeHantibus. Mandavtmus enim vie* com* 
pr<rdiS* quod ad certos diem et loca quos tw, quinque^ quatsM^ tres vet 
duo vefirum (quorum -vos preefat' Robert* unum ejfe volumus) ei fcire 
fdC* venire fac* coram vobis quinque^ quatuor^ tres vel duohus vejlrum tat 
et tales probes et legates liotnines de baliva fua tarn vifra liber tales quam 
extra^ f>rr quos rei ivritas melius fciri p^tcrit et inquiri. In ctr-- "• 
tr iinonium has literas, nofiras fieri fecimus patenles, Tefie me 1/ 1 
ff '' ■ -r;' /(Xfo die yulii^ anno regni nojiri Angliae 50. Rjtgni V€i i.nji , t 
ice 3 7. Per conJV.ium in parlianttnto, 

ijiit whn" !one upon *' ■ - iiniffion we have not yet 


The fai )f 33 E. i. to mc rynncrs of Corawall was con- Rot. pat 8 R. 2, 


And the ciKirrer of 33 E. i. to the tynners of Devon* was alfo Rot. pat. anno 
confirmed. ' ^- ♦ 

The like confirmation to the tynners of Devon. ^°*- P*^ 3 " r- 

See the ft'atute of ii H. 7. cap. 4. concerning cunage and 

It was refolved by the whole court that ^amnr«, tyn| otherwife Mich. 4 
whitelead, nor black lead, nor any other bafe metall did belong to Cameni SccUau. 
the kinr; bv h?s prerogative, as gold and fjlver doe, alhe'it rh-re 
may' t of the • filver, b'" s [^37] 

thcf'> igthofthc ; being ca .r^ 

comes dci«;ctive. 

There be five kinder of bafe metals, five cupium (bc- 

caufe it was found ■ nc hold, m Cypro) copper, fi^rmumi 

tynnc, frrrum iron, nad, znd crichakum htyo. Polvbiui . Pdyblot 

lit wroie that this iHand was abundantly fiored PHnius lib. ca.K, 
.7 aui iuxta * Belaittm prcmmiariitm incoLmt mtr* . 9« Dipdorut Sl- 
a '■ . L • I' ' I r cuius lib. C. ca. 

, qui eojta: .: ani^ humamores rehquts ergm hof- g f^ 14s. «o- 

/ ur^ kit ex inri J ..r venas fifiati ejftdimt fiemttiim miifab Aofvfto. 

'fv (dutium in quantiam injulamfirtml Britaimicam jwxtOy qnam F'eSam •Am Vd»««B, 

vocant: ^^i^^ptrf 

237 The Court of the Mayor of the Staple. Cap. 46. 

vacant : ex h'lis infulis mercatores eniptum Jlannum in Galliam portant 
inde diehus fere iriginta cum equis ad fcntem Ey idan'i jiuminis perducunt. 

See M. Camden, pa. 134. in Cornwall. 

And for as much as ty nne is a ftaple commodity, let us in the next 
place treat of the court of the mayor of the ftaple.' 


The Court of the Mayor of the Staple, 

«a7E. 3.cap, 
See the firlt part 
of the Inftirutes. 
Sedt. 3. verb, tn 
la ley. m. 
aj E. 3. cap. 19. 

THIS court is guided by the law merchant, which is the law of 
^^^^ the ftaple, and is holden at the wool-flaple at Weftm. And 

there are alfo two conftables, " and a certain number of cor- 
reftors to do that which pertaineth to their office, as in other flaples 
is accuftomed. 

This court (though it was far more ancient) is frrengthened and 
warranted by acfV of parliament which can beft expreile the jurif- 
di(n:ion thereof, and followeth in thefe words. 

£7 E. 3. ftat. 2. 
c. 21. 


The law mer- 


Itemj becaufe the flaples cannot long continue, nor the or- 
dinances thereof made and to be made be kept, If good exe- 
cutors and juftices be not ftablifhed to make thereof good and 
ready execution : we have ordained and eftablifhed, that in 
every tovirne where the ftaple is ordained, a mayor, good, law- 
full, and fufficient (hall be made and eftablifhed, having know- 
ledge of the law merchant, to governe the ftaple, and to doe 
right to every man after the law aforefaid, without favour, 
fparing, or griefe doing to any. And In every place where 
the ftaple is, fhall be two covenable conftables now at his be- 
ginning put by us, to do that pertaineth to their ofEcCj as in 
other ftaples is accuftomed ; and when they fhall be dead or 
changed, then other fhall be chofen by the commlnalty of the 
merchants of the faid places. And that no malor hold the 
ofHce over the year, unlefTe he be newly chofen by the comml- 
nalty of the merchants, as well of ftrangers, as of denizens. 
And that the fald mayor and conftables have power to keep 
the peace, and to arreft offenders in the ftaples for debt, tref- 
pafTe, or other contradl, and them to put in prifonj and punifh 
after the law of the ftaple. And a prifon fhall be ordained for 
the fafe keeping of them that fo fliall be imprlfoned. And the 
mayors, fherlfFs, and bailiffs of the townes, where the ftaple 
is, or joyning to the ftaple, fhall be attending to the mayor 
and minifters of the ftaple to do execution of their command- 
ments upon pain of grievous forfeiture : and one lord or other 
of the moft fufficient in the country where the ftaple is, fhall 
be affigned to be aide to the mayor and minifters of the ftaple 
tojuftifiethe rebels, which by the faid mayor and minifters 


Cap. 46. The Court of the Mayor of die staple. ajS 

cannot be juftified, and to maintain and counfcll them when 
need (hall ho to the good governance of the ft;ii)le, and to re- 
drcllc at every mans complaint that that (hall be done amiHc 
by the faid mayor or miniftrrs, or other, and to do right to 
the complainants in thisbehalfc. And that the fame mayor and 
Conftables do not, nor ordainc any thing contrary to this ordi- 
haiKe, nor make interpretation nor exception to them other- 
wife then the words do purport, but if there be any thing that is 
doubted, it (hall be (hewed to our councell, and there aeclared 
by good f '• ■ - 

* Sec the itatiitc of 36 E. $. cap. 7. That merchant (Irangfrs * 36 ^- 3 "P-7. 
may either fue before the mayor of the (laple according to the Taw ^"^' ^^- ^ "•*• 
merchant, or at the common law. ""' *'* 

^ The bounds of the ftaple at Weftm. begin at Temple Bar, and ** »« K %.€m. i c 

extend to Tuthill. In other cities and towns, w-thin ti)e wals: J^/^'l^^* 

where no wals be, the bounds of the ftaple (lull extend through all c J- 21 3. c». 8. 

the city or town. %% e. 3. c». 13. 

* See 27 E. 3. howtriall (hail be had per medietatem lingua: et Rot. Cmc 
vide II E. I. Cart* Mrrcalof", 31 E. 1. nu. 44. 

* See the ftatute of 27 E. 3. that the mayor of the (hple **?£ 3 ap-9-