A COMPENDIUM OF THE Laws and Government Eccleſiaſtical, Civil and Military, OF ENGLAND, SCOTLAND & IRELAND, AND DOMINIONS, Plantations and Territories Thereunto belonging, WITH THE Maritime Power thereof, AND Iuriſdiction of Courts THEREIN.
Methodically Digeſted under their Proper Heads.
By H. C. ſometime of the Inner-Temple.
LONDON, Printed by the Aſſigns of Rich. and Edw. Atkins, Eſquires, for I. Walthoe, and are to be ſold by Iohn Deeve, at Bernard's-Inn-Gate in Holbourn. 1699.
AT my firſt Entrance into the Study of the Laws of England, knowing Method and Order conduce much to the enlightning of the Ʋnderſtanding, rendring things more perſpicuous, and comprehenſive to the diſcerning Judgment, and ſitting them better for the retaining Memory; I reſolved to obſerve a Regular Courſe, and therefore ſearched for ſuch Authors, and endeavoured to make uſe of ſuch Means as might beſt correſpond with my Deſign therein. But among the ſeveral Treatiſes of the Laws and Government of this Kingdom, and Juriſdiction of Courts heretofore written by ſeveral Eminent and Learned Men, finding none were ſo compleat, nor had that Beauty of Order and Ʋniformity at might be expected. And the Lord-Coke in the Epilogue to his Fourth Inſtitutets concerning the Juriſdiction of Courts, deſiring the Wiſe-hearted and Expert Builders would amend both the Method, and Ʋniformity, and the Structure it ſelf, where they ſhould find any Deficiency in the Architecture; and conſidering that great Alterations have been made ſince by divers Acts of Parliament and otherwiſe, I was enduced to compile this. Methodical Compendium of the Laws and Government of England, and the Dominions thereunto belonging, to direct and facilitate my farther Studies. But the Importunity of ſome having prevailed with me to promiſe (contrary to my firſt Intention and Inclination) to make it Publick: If it prove beneficial to others, it will ſurmount all the Ambition may be thought to be in
See the Alphabetical Table at the End of the Book.
OF GOVERNMENTS there can be but Three kinds, viz. One, or More, or All, muſt have the Sovereign Power of a Nation: If one, then it is a Monarchy; If more, (as an Aſſembly of Choice Perſons) then it is Ariſtocracy; if All (that is, a General Aſſembly of the People,) then it is a Democracy: And now in courſe we are firſt to ſpeak of,
The Monarchical Government, which as moſt reſembling the Divinity, and approaching neareſt to Perfection, being eſteemed the moſt Excellent, is of two ſorts, Regal and Political: The firſt ſort,
Monarchy Regal was begun by Nimrod, who (after the World began to increaſe) got unto himſelf a Dominion2 over others; and yet in Scripture he is not called a King, but a Mighty Hunter before the Lord: So Belus did ſubdue the Aſſyrians, and Ninus the moſt part of Aſia; and ſo did the Romans uſurp the Empire of the World.
And thus having ſet forth the beginning of the Regal Government of Kingdoms; which Law Regal was no other thing but the Pleaſure of the Prince, as in the Firſt of Kings you may read more at large: We will now, as being more for our purpoſe, declare how Kingdoms of Political Government were firſt begun, which we may term,
Monarchy Political. St. Auguſtine in the 19th Book De Civitate Dei, ſaith, A•People is a Multitude of Men aſſociated by the Conſent of Law, and Communion of Wealth: And yet ſuch a People without a Head, is not worthy to be called〈◊〉Body; as in Natural things, the Head cut off is not called a Body, but a Trunk Wherefore Ariſtotle in his Civil Philoſophy ſaith, Whenſoever One is made of Many, among the ſame, One ſhall be the Ruler, and the other ſhall be the Rule•And this Ruler thus raiſed and appointed in Kingdoms is called a King from the Saxon word Koning, intimating Power and Knowledge, wherewith every Sovereign ought eſpecially to be3 Inveſted: And thus of a Multitude of People ariſeth a Kingdom, which is a Body Myſtical. And in this Body Myſtical, or Political, the Intent of the People (like Blood in the Natural Body) is the firſt lively thing; that is Politick proviſion for the Utility and Wealth of the ſame People, which is imparted to the Head and members of the ſame Body, whereby it is Nouriſhed and Maintained; and by the Law, which cometh from Ligando, of Binding, this Myſtical Body is knit and preſerv'd together, and the Members and Parts thereof, as the Natural Body by Sinews, do every one retain their proper Functions: And as the Head of a Natural Body cannot change his Sinews, nor withhold from his Inferiour Members their peculiar Powers of Nouriſhments; no more can a King, which is the Head of the Body Politick, change the Laws of that Body, or withdraw from the ſaid People their proper Subſtance againſt their Wills.
And therefore it now follows, that we ſpeak ſomewhat of the Fundamentals of laws in General, and then deſcend to the particular Fundamentals of the Laws of England; and afterwards briefly declare the Executive Powers of the ſame. And firſt of
WHich are Four, that more properly belong to this our Buſineſs; (viz.) The Law Enternal, The Law of Nations, Divine Law, and Human Law.
LEx Aeterna is the Reaſon of the Divine Will, whereby God will•ave all things of him Created, to be moved and directed to a good End; and it is called The first Law, and all other Laws are derived from it. And this Law Eternal none may be able to know, as in himſelf, but the Bleſſed alone: But God of his Goodneſs revealeth it to all, in as much as is neceſſary for them, otherwiſe he ſhould bind his Creatures to impoſſible things, which to be in God is moſt wicked to think. And God reveals this Law Eternal, or the Divine Will, to the Rational Creature Three manner of ways, that is, Firſt by the Light of Natural Underſtanding, and then it is called The Law of Reaſon: Secondly, by Divine Revelation, and then it is called The Divine Law: Thirdly, by Reaſon in the Prince, or any other Secondary Pe ſon Governing, who hath power to Impoſe a Law upon this Subjects, and5 then it is called Humane Law, altho' it be Originally inſtituted from God: And becauſe whatſoever the Second Cauſe doth, the Firſt doth alſo by a more Noble manner; therefore the aforeſaid Three Laws are called in God, One Law Eternal; and this is that Law of which it is written, Prov. 8. Per•me Reges regnant, Et legum conditores juſta diſcernunt.
LEx Rationis, which amongſt Doctors is alſo called The Law of Nature, or Jus Gentium, The Law of Nations, may be doubly conſidered, that is, either as it reſpects all Creatures, even Irrationals, for all Irrational Creatures, not hindred, do live and ſubſiſt under certain Rules to them ſet by Nature, they alſo conſerve their kind and by Inſtinct of Nature nouriſh their Young; and things by Nature contrary to them they fear, and eſpecially when alone it reſpects the Rational Humane Creature, created to the Image of God: And it is called The Law of Nations, for that it ought to be kept by all Nations, as well among the Jews and Gentiles, as Chriſtians. And thus, The Law of Reaſon is a participation of The Law Enternal:6 From whence it is ſaid in the Pſalms, Signatum eſt ſuper nos Lumen vultus tui Domine, ſcilicet, Lumen Veritatis.
LEx Divina, is a true Sign reveal'd to the Rational Creature of the Divine Reaſon, Willing the Rational Creature, to be held or bound to do ſomething, or not do it, for obtaining Eternal Felicity, as are the Laws of the Old Teſtament, which are called Morals, and the Evangelical Law; and ſometimes it is called, Law inſtituted by Man, but improperly nevertheleſs, when the Law is for obtaining Eternal Felicity.
Moreover, beſides The Law of Reaſon and Humane Law, it was neceſſary for the Direction of Humane Life, to have the Divine Law, for Four Reaſons: Firſt, Whereas Man was created to enjoy Eternal Beatitude, it was neceſſary that beſides the Law of Reaſon and Humane Law, he ſhould be Directed to his End by a Law Divinely inſtituted. Secondly, For the incertainty of Humane Judgment, that he ſhould be directed by a Law given by Divine Inſpiration, from which it appeared, that he might by no means deviate. Thirdly, Becauſe the Judgment of Man may not be of7 Interior Acts; therefore it was neceſſary to have a Law Divine, which ſhould rectifie the Interiors, as well as the Exteriors of Men, Fourthly, Becauſe Human Law cannot puniſh every evil Act, it was neceſſary to have a Divine Law, which ſhould let no Evil go unpuniſhed; and theſe four Reaſons are touched in this Verſe,
Lex Domini immaculata convertens animas, Teſtimonium Domini Fidelis ſapientiam praeſtants Parvulis.
LEx Humana ſive Poſitiva, is a Law Deduced by Reaſon, from the Law of Reaſon, and the Divine Law; and therefore in every Poſitive Law well Inſtituted, there is ſomewhat of the Law of Reaſon, and the Divine Law, And Humane Law is a true ſign by Humane Tradition and Authority, immediately Conſtituted: And that Human Law be Juſt, Two things are required; That is, Prudence and Authority, becauſe it is called Lex à ligando, but every Sentence of a Prudent Man doth not bind the Community or any of them, if he do not preſide over them. And in the Law of Men theſe Proprieties are required, viz. That they be Honeſt, Juſt,8 Poſſible, according to the Cuſtom of the Country, and convenient to the place and time; Neceſſary, Profitable, Manifeſt; alſo that they be Ordained for no Private end, but for the Common good; and Humane Laws not contrary to the Divine Law ought to be kept alſo in Conſcience, Et qui eas ſpernit Deo reſiſtit.
From what hath been ſaid it appears, That the Divine Law reſpects the Spiritual end, The Law of Reaſon the Natural end, and that Human Law may direct to both; And the Law of Reaſon takes of Nature of the thing for a Foundation, but Human Law, the publick Expedience or Good.
Now of theſe Four Laws, all Laws in general conſiſt and be ſounded, if they are good. And that we may ſhew particularly, and more eſpecially from whence ariſe,
WE muſt know that the Law of England, or Humane Law in England, takes its Fundamentals from Six chief Principles: Firſt, The Law of Reaſon. Secondly, Divine Law. Thirdly, Divers Cuſtoms of the Kingdom. Fourthly, Divers Principles called9 Maxims. Fifthly, Particular Cuſtoms in certain places. Sixthly, From divers Statutes of the Common Council of the Kingdom in Parliament; of which we ſhall ſpeak ſomething in order.
And firſt, The Law of Reaſon is held in this as in all other Kingdoms; and the Learned in the Laws of England make two Degrees of the Law of Reaſon, (ſcilicet) Lex. Rationis Primariae, & Lex Rationis ſecundariae: Ex Primaria, From the firſt are forbidden Murder, Manſlaughter, Oppreſſion of the Innocent, Perjuries, Deceits and many ſuch like. But the manner of puniſhing theſe ſorts of Offences, is according to divers Principles and Maxims or Statutes, to this end eſpecially ordained; and it is called the Law of Reaſon primary; For that thoſe things which are Commanded or Forbidden by that Law, are grounded upon Reaſon alſo, without any other Law joyned or oppoſed to it: The Law of Reaſon ſecundary is likewiſe divided in two parts, That is, General and Particular; The Law of Reaſon ſecundary General, is derived from that Law of Propriety General, which is held throughout the World; From this are prohibited Thefts, Diſſeiſins, and many other, And it is called the Law of Reaſon10 Secundary, for that it is founded not upon Reaſon alone, but from the Law of Propriety, and the Reaſon derived from that Law; for becauſe the Law of property ſaith, Such a thing is the proper Goods of ſuch a Man; Therefore ſaith Reaſon, grounded upon that Law, that thing is not to be taken from him unjuſtly againſt his Will. And the Law of Reaſon Secundary Particular, is that which is Founded upon divers General and Particular Cuſtoms, and divers Maxims and Statutes, only had and ordained in the Kingdom of England: As if a Diſtreſs dye, it ſhall not be imputed to him who diſtrained; but to him who hath the Propriety, becauſe the Defect is to be aſſigned in him, for that he did not pay the Rent: And Reaſon is founded upon the Cuſtom aforeſaid, ſo that there need not be any Written Law had thereof. And we find ſo many Secundary Reaſons in the Laws of England, that many are willing to affirms the whole Law of England, to be proved by Reaſon, which notwithſtanding is by no means to be affirmed, as by another Example.
By a certain Statute it is Ordained, That he who hath abjur'd the Realm, whilſt he is in the publick High-way, ſhall be in peace with our Lord the11 King and not in any ſort moleſted; and by the Cuſtom of the Kingdom, he is to be conducted from Town to Town, by the Conſtables, &c. to the Sea-port, &c. Now if he Eſcape, the Conſtable ought not to be charged to the King, becauſe by reaſon of the Statute, he could not keep him in ſafe Cuſtody, or uſe any Force or Impriſonment whereby he might be kept in ſafe Cuſtody; and the Reaſon is grounded upon that Statute. And ſome ſay, Robbery is to be prohibited from Reaſon Primary, even before the Law of Property, for that it was not Lawful even when all things were in Common, to take any thing from another by force, or to throw him out of his Habitation; but that ſuch Robbery is to be puniſhed with Death, is from the Cuſtom of the Law of England. Alſo from the General Law of Property aforeſaid, by the Laws of England are excepted Birds, Wild beaſts and Beaſts of Warren, in which by the Laws of England is no Property to any One, unleſs they be Tame; yet nevertheleſs by the Laws of England in the Eggs of Herons, and ſuch like, Building in the Woods of any, is a Property. And for that every Deduction of Reaſon in the Laws of England, proceeds12 from the firſt Principles, or from ſomewhat from thoſe Principles derived, no Man althô the moſt Wiſe, can Judge juſtly or Argue rightly in the Laws of England, if he know not theſe Principles.
The Second Fundamental of the Law of England is Lex Divina, whereby to puniſh the Tranſgreſſors againſt the Divine Law. The Law of England in many Courts of our Lord the King doth Inquire of Hereticks: Alſo if any Statute be made or ſet forth againſt them; as that none ſhall give Alms, it ought to be of no force; alſo, Perſons Excommunicated in the Laws of England may not Proſecute, nor have Communication with others whilſt the Excommunication is certified. And from the ſame Fundamental the Law of England admits the Spiritual Juriſdiction of Tithes, and other things which do of right belong to the Eccleſiaſtical Juriſdiction, and receives Canonical or Eccleſiaſtical Laws, Quae non Excedunt poteſtatem ferentis: ſo that in many Caſes it behoves the Kings Juſtices to Judge according to the Laws of the Church; As if the Law of the Church be, that the Sentence of Divorce is not in force till it is affirmed upon Appeal, The Judges of our Lord13 the King, ſhall form their Judgment according to the Laws of the Church; And if A. B. and C. D. have Goods and Chattels joyntly, and A. B. by his laſt Will, give his part to E. F. the Eccleſiaſtical Judges are bound in this caſe to adjudge this Will void.
The Third Fundamental of the Law of England, is the General Cuſtoms of the Kingdom, which are divers General Cuſtoms uſed and approved of in Ancient time, throughout the whole Kingdom of England, and who attempts any thing againſt them Works againſt Law and Juſtice; And theſe are properly called the Common Law, and ought always to be determined by the Judges, whether a General Cuſtom or not, and not by the Country; and of theſe and other Principles or Maxims, a great part of the Law of England depends; and therefore the King by his Coronation Oath promiſeth (inter alia) that he will faithfully obſerve all the Cuſtoms of the Kingdom; and the Ancient Cuſtoms of the Kingdom, is the Original and Foundation of divers Courts in the ſame Kingdom; Whereof one is The Chancery of the Kingdom, in which (inter alia) Writs original are obtained, directed to other Courts of the King; another The Kings-Bench,14 in which are handled all Treaſons, Murders, Homicides, Felonies, and other things done againſt the Kings Peace; another Court is called The Common Bench, in which Common Pleas are handled; (That is to ſay,) of Lands and Tenements, Debts and Chattels and ſuch like; another Court is called The Kings Exchequer, in which are handled divers matters touching the King alone, as of Sheriffs, Eſcheats or Receivers, Bayliffs and other the Kings Officers and the like; and theſe are called Courts of Record, becauſe thoſe who preſide as Judges ought to be aſſigned by the Kings Letters Patent; and theſe Courts have many and divers other Authorities, of which we ſhall ſpeak more hereafter in their proper places, and likewiſe of divers other Courts of inferiour Authority in the Kingdom of England: And althô in divers Statutes and Books, mention is made of the Authority of theſe Courts; yet we have no written Law of their Inſtitution; for their Inſtitution depends upon the Cuſtom of the Kingdom, which hath ſo great Authority, that they may not be altered, or their Names changed or altered, but by Act of Parliament. Alſo there is an Ancient Cuſtom, which is confirmed15 by the Statute of Marlebridge; That all ſhall do and receive Juſtice in the Kings Court, and another, that none ſhall be put to Anſwer, or be judged, but according to the Law of the Land; and this is confirmed by Magna Charta: And there are other General Cuſtoms in the Kingdom of England, which retain the force of Law, as that the eldeſt Son ſhall ſucceed the Father in the Inheritance, and many more, not here to be recited.
From whence it appears, that Cuſtoms in the Laws of England may not be proved by Reaſon alone, for how can it be proved by Reaſon, that the Husband ſhall have the Wife's Land for Term of his Life, as Tenant by that Law, and that the Wife ſhall have only the Third part, ſcilicet, that it ſhall be ſo done and not otherwiſe? And it is certain, that the Law of Property is not the Law of Reaſon, but a Cuſtomary Law, and ought to be accounted amongſt the General Cuſtoms of the Kingdom, and there is not any Statute or written Law of the Inſtitutions of the Cuſtoms of the Law of England, but according to the Skilful in the Law of England: The Ancient Cuſtoms of the Law of England are of themſelves of ſufficient Authority;16 and the Cuſtomary Law is the moſt firm Law, provided ſuch a Cuſtom be not againſt the Law of God, or the Law of Reaſon.
The Fourth Fundamental of the Law of England conſiſts of Divers Principles, which the Learned in the Law call Maxims, always eſteemed and held for Law of this Kingdom of England, which none Learned in the Law may contradict, becauſe every one of them gives Faith or Credit to it ſelf; and whether a Maxim or not is to be tried by the Judges, as before is ſaid of General Cuſtoms of the Kingdom, and not by the Country: And theſe Maxims are not alone taken for Law, but alſo all other like caſes, and all things neceſſarily following upon them, are to be placed in like Law, and they are in the ſame force and ſtrength in Law as Statutes; and althô all theſe Maxims might conveniently be numbred amongſt the aforeſaid General Cuſtoms, ſince Ancient Cuſtom is the ſole Authority, as well of theſe as thoſe; yet becauſe thoſe General Cuſtoms are diffuſed and known, they may eaſily and without ſtudy in the Laws be known, but theſe Maxims are only known in the Kings Courts, or by thoſe who are Learned17 in the Law; and now for example ſake we will mention a few of them, ſince to declare them fully great Volumes would not ſuffice: And firſt, there is a certain Maxim in the Laws of England, that no Preſcription in Lands maketh a Right; alſo, that Preſcription in Rents and Profits to be taken in the Lands of another maketh a Right; alſo, that the limitation of Preſcription is generally taken à tempore cujus centrarij Memoria hominum non exiſtit, &c.
And further, there are many other Maxims, as in certain Actions, The Proceſs is by Summons, Attachment and Diſtreſs Infinite; and in ſome by Capias Infinite, &c. and that there ſhould be theſe divers Proceſſes in divers Actions, may ſeem expedient and reaſonable; but that there ſhould be theſe divers Proceſſes had in the Law of England, and none other, cannot be proved by Reaſon; therefore they muſt neceſſarily have their force from the Maxims aforeſaid, or the Ancient Cuſtom of the Kingdom: And ſome Maxims ſeem to be founded upon Reaſon Secundary; and therefore ſome may think they may be put unto the firſt Fundamental of other Laws of England; as if any command a Treſpaſs, he is a Treſpaſſor, &c.
18And there are other Maxims and Customs, which are not ſo manifeſtly known, but may be known by the Law of Reaſon; partly by Books of the Law of England, which are called Year Terms, partly by Records in the Kings Treaſury, and remaining in the Kings Courts; and by a Book called the Register, and by divers Statutes, in which ſuch Cuſtoms and Maxims are often recited. Vide Doctor & Student.
The Fifth Fundamental of the Law of England conſiſts of Divers particular Cuſtoms, uſed in divers Countries, Towns, Lordſhips, or Mannors and Cities of the Kingdom; which ſaid particular Cuſtoms, becauſe they are not againſt Reaſon, nor the Law of God, altho' they are contrary to the aforeſaid General Cuſtoms, and Maxims of Law, yet they retain the force of Laws: And they ought not always to be determined by the Judges, whether there be ſuch a Cuſtom or not, unleſs in a few particular Cuſtoms ſufficiently known and approved in the Kings Courts, but ought to be tryed by the Country: And of theſe particular Cuſtoms I ſhall put a few for Example; As there is a Cuſtom called Gavelkind in Kent, where all the Brothers ſhall19 Inherit as the Siſters do at Common Law: By Burrough Engliſh, in the Town of Nottingham, the younger Son ſhall Inherit: In ſome Countries the Wife ſhall have all the Inheritance of her Husband, in Name of Dower, ſo long as ſhe continues a Widow: And in ſome Countries the Man ſhall have half the Inheritance of the Wife during his Life, although he hath no Iſſue by her: In ſome Countries the Infant may make a Feoffment at his Age of Fifteen years: And in ſome Countries, when he can Meaſure an Ell of Cloth; yet ſuch Infant may not make Warranty, for if he do, it is void in Law, neither may he in ſuch caſe make a Releaſe. Thus are held many other particular Cuſtoms.
The Sixth Fundamental conſiſts of Divers Statutes Ordained in Parliament, when other Fundamentals of the Law of England are not ſufficient; for it is to be known, that altho' the Law of Reaſon may be aſſigned to be the firſt and principal Fundamental of the Law of England: yet the Law of Reaſon is not of ſo great force and efficacy in the Laws of England, that it alone being known, all the Law of England is known: For beſides the Law of Reaſon, he who deſires to know the Laws of20 England, ought to know the Cuſtom of the Kingdom, as well General a Particular, and the Maxims and Statutes of Law, or otherwiſe, altho' h•were the wiſeſt of Men, he will underſtand but few things of the Truth o•the Law of England.
From theſe things before contain'd it may be deduced, which often fall out, That in one and the ſame caſe two or three Fundamentals of Law ought to concur together before the Plaintiff may obtain his Right, as by Example may appear: As if any afte•Entry by him made into any Land with a ſtrong hand, make a Feoffmen•for Maintenance, to defraud the Poſſeſſor of his Action; then the Demandant by the Statute of 8 Hen. 6. cap. 9. ſhall recover his treble Damages, according to what Damages ſhall be aſſeſſed by the Jury: In which caſe it appeareth that ſuch Entry is prohibited by the Law of Reaſon Secundary; but that the Demandant ſhall Recover, his treble Damages, is by the aforeſaid Statute: And that the Damages ſhall be Aſſeſſed by the Jury, is by the Cuſtom of the Kingdom: And thus Three Fundamentals of Law concur in this caſe.
21And it is to be noted, that there are many Cuſtoms, as well General as Particular, and alſo Divers Laws, called Maxims, which take not their force from ſtrong Reaſon, but from the Cuſtom of the Kingdom: For by Statutes they may be changed into the contrary, and what can be changed, can never be affirmed to be the Law of Reaſon Primary: As for Example; How doth it ſtand with Reaſon or Conſcience, That if one Bound in an Obligation to pay Money, pay part of the Money, but takes no Acquittance, or loſe it; by the Laws of England he ſhall be compell'd to pay that Money again, becauſe of the General Maxim, That in an Action of Debt upon Bond, the Defendant may not plead Nihil debet, or Quod poecuniam ſolvit, nor otherwiſe diſcharge himſelf unleſs by Acquittance, or other ſufficient Writing amounting to a Diſcharge in Law; and this to avoid the great Inconvenience which would follow, if every one by word alone might avoid an Obligation.
And thus having briefly ſet forth the Fundamentals of the Law of England, we ſhall proceed to the Government, and the Legiſlative and Executive Power of the Laws of England.
THe Government of England is〈◊〉the firſt and beſt kind, viz. Monarchical Political Government.
BEing Supream Governour in〈◊〉Cauſes, and over all Perſons, fro•Him is derived all Authority and Jur•diction, He being Quaſi Intellectus Age••Forma formarum, &c. And from th•King with the Advice of
THat moſt Honourable Aſſemb••in the Kings Court or Palace, a•others receive their Motion. It is calle•Concilium Secretum, Privatum, vel Cont•nuum Regis Concilium. This is the Hig•Watch-Tower, wherein the King an•his Nobles Counſellors, ſurvey all h••Dominions, and ſometimes all the D•minions of the World, Conſulting th•Honour, Defence, Profit and Peace〈◊〉his People, and their Protection fro•Violence or Injuries, either at home〈◊〉from abroad.
23And theſe Privy Counſellors, by the Cuſtom of the Kingdom (being part of the Fundamental Laws of England, as before is mentioned) are ſuch as the King pleaſeth to chooſe, and are made without Patent or Grant, being only Sworn, that according to their Power and Direction, they ſhall truly, juſtly and evenly Counſel and Adviſe the King in all Matters to be treated in His Majeſties Council, and ſhall keep Secret the Kings Council, &c. And they are ſo to continue during the Life of the King, or during the Kings Pleaſure.
And theſe Lords of the Privy Council are, as it were, incorporate with the King, in bearing the burthen of his Cares; wherefore the Striking in the Houſe or Preſence of a Privy Counſellor, ſhall be grievouſly Fined: Conſpiring his Death by any within the Cheque-Roll is Felony, and Killing any one of them is High Treaſon.
And although before the latter end of Henry the Third, Quod proviſum fuit per Regem & Conſilium ſuum Privatum, Sigilloque Regis Confirmatum, proculdubio Legis habuit vigorem, ſaith Spelman; yet at preſent they take Cognizance of few Matters that may well be determined by the known Laws, and Ordinary Court of Juſtice.
24The Preſident of this Council was ſometime called Principalis Conciliarius, and ſometimes Capitalis Conciliarius; and this Office was never granted but by Letters Patent of the Great Seal durante bene placito, and is very ancient, for John Biſhop of Norwich was Preſident of the Council, Anno 17 Regi•Johannis, Dormivit tamen hoc Officium regnante magna Elizabetha. The Lord Preſident is ſaid in the Statute of 21 H. 8. cap. 20. to be attending upon the King moſt Royal Perſon; and the reaſon o•his attendance is, for that of latter times he hath uſed to report to the King the Paſſages, and the State of the Buſineſs at the Council Table.
Next to the Preſident ſitteth in Council, &c. The Lord Privy Seal, who beſides his Oath of a Privy Counſellor taketh a particular Oath of the Privy Seal, which conſiſteth of four parts. Firſt, That he juſtly exerciſe the Office of Keeper of the King's Privy Seal to him committed. Secondly, Not leaving ſo to do for Affection, Love, Doubt or Dread of any Perſon. Thirdly, That he ſhall take ſpecial regard, that the ſaid Privy Seal in all places where he ſhall go to, may be in ſuch ſubſtantial wiſe uſed and ſafe kept, That no Perſon without25 the Kings Special Command or Aſſent, ſhall Move, Seal or Imprint any thing with the ſame. Fourthly, Generally he ſhall obſerve, fulfil and do all and every thing which to the Office of the Keeper of the Kings Privy Seal duly belongeth and appertaineth.
This is an Office of great Truſt and Skill: That he put his Seal to no Grant without Warrant nor with Warrant, if it be againſt Law, undue, or inconvenient, but that firſt he acquaint the King therewith.
Upon the Lord Privy Seal are attendant four Clerks of the Privy Seal.
How the Kings Grants, Writings and Leaſes paſs the three Seals, viz. The Privy Signet, the Privy Seal and the Great Seal, and the Duties of the Clerk of the Privy Signet and Privy Seal, and what Fees ſhall be paid, and where none at all, &c. and many Articles concerning the paſſing of the Kings Grant, &c. you may Read in the Stat. of 27 Hen. 8. This Officer is named in ſome Statutes, Clerk of the Privy Seal, in others Garden del Privy Seal, and in the Stat. 34 Hen. 8. Lord Privy Seal.
26By Stat. 11. R. 2. cap. 10. It is provided, That Letters of the Signet, nor of the Kings ſecret Seal ſhall be from henceforth ſent in Damage or Prejudice of the Realm, nor in Diſturbance of the Law.
It appeareth by Writs and Records of Parliament, that the High Court of Parliament is reſolved to be holden by the King Per adviſamentum Conſilij ſui, viz. by advice of his Privy Council.
Acts and Orders of Parliament for the Privy Council, and other things concerning them in the Rolls of Parliament, you may Read in the Statutes and Originals at Large, mentioned in Cokes 4. Inst. cap. 2.
No Lo•d of Parliament takes any place of Precedency in reſpect he is a Privy Councellor, but under that Degree, ſuch place a Privy Councellor ſhall take, as is ſet down in Serie ordinum, tempore Hen. 7.
The King by advice of his Privy Council, doth publiſh Proclamations binding to the Subject, provided they be not againſt Statute or Common Law.
The Privy Councellors ſit in order Bareheaded when the King Preſides, and the loweſt declares his Opinion firſt,27 and the King laſt declares his Judgment, and thereby determins the matter.
For their Precedency and Place, ſee the Statute of 31 H. 8. directing the ſame.
The time and place of holding the Council, is wholly at the Kings pleaſure; which is ſeldom or never held without the preſence of One of
The Secretaries of State; of which, ſince the latter end of the Reign of H. 8. there have been Two, both of equal Authority, and both ſtyled Principal Secretaries of State; theſe every day attend upon the King, and receive and make diſpatch of the Petitions and Deſires of the Subjects at home, and for Foreign matters.
The Sectetaries have the Cuſtody of the Kings Seal called the Signet, which gives denomination to an Office conſtantly attending the Court, called The Signet Office, wherein Four Clerks prepare ſuch things as are to paſs the Signet, in order to the Privy Seal or Great Seal.
The Four Clerks in Ordinary of the Privy Council, are to Read what is brought before the Council, and draw up ſuch Orders as the King and Lords ſhall direct, and cauſe them to be Regiſtred:28 And belonging to the Secretaries is,
The Paper-Office, where all Paper-Writings and publick Matters of State, and Tranſactions of Miniſters abroad, and what paſſes the Secretaries is tranſmitted and kept. And now we proceed to
THe King being Chief Perſon, as being Perſona Sacra & Mixta cum Sacerdote, is the Supream Biſhop of England: For at his Coronation, by a ſolemn Conſecration and Unction, he becomes a Spiritual Perſon, Sacred and Eccleſiaſtical, having both Corona Regni & Stola Sacerdotis put upon him.
He is Patron Paramount of all Eccleſiaſtical Benefices, to whom the laſt Appeal in Eccleſiaſtical Affairs is made, and who alone hath the Nomination of all Perſons for Biſhopricks and Chief Dignities and Deaneries, and ſome Prebends in the Church, &c. And next to the King are the Primates, Metropolitans, or
Archbiſhops, one of Canterbury, the other of York, each of which have their peculiar Dioceſs, beſides a Province of ſeveral Dioceſſes; and theſe Archbiſhops29 have the Style of Grace, with the Title of Lord prefixed in ſpeaking to them, and are termed Arch or Chief Biſhops, it ſeeming requiſite to our Anceſtors (according to other Chriſtian Churches, ſince the firſt Nicene Council) to have amongſt a certain number of Biſhops, One to be Chiefeſt in Authority over the reſt, for the remedy of General Diſorders, or when the Actions of any Biſhop ſhould be called in queſtion, &c. And next under theſe Archbiſhops are,
Biſhops Twenty four, whereof Twenty one Biſhops, with their Biſhopricks or Dioceſſes, are in the Province of Canterbury, and the other Three in the Province of York, who are in Conformity to the firſt Times and Places of Eſtabliſhed Chriſtianity, One of the Clergy Ordained in every City, to have the preheminence over the reſt of the Clergy within certain Precincts: And theſe are likewiſe Lords in reſpect of their Baronies annexed to their Biſhopricks, and for eaſing the Biſhop of ſome part of his Burthen, as the Chriſtians waxed Great; or as in reſpect of the Largneſs of the Dioceſs in the primitive Times, there were Ordained Chorepiſcopi, Suffragan, or Subſidiary Biſhops; ſo in England are ſuch Ordained by the Name of
30Biſhops Suffragans, or Titular Biſhops, who have the Name, Title, Style and Dignity of Biſhops; and as other Biſhops are Conſecrated by the Archbiſhop of the Province, each one to execute ſuch Power, Juriſdiction and Authority, and receive ſuch Profits as are limited by the Biſhop or Dioceſan, whoſe Suffragan he is. By Act of Parliament of King Henry the 8th, ſtill in force, they are to be only of ſeveral Towns therein named; and in caſe the Archbiſhop, or ſome other Biſhop deſire the ſame, the Biſhop is to preſent Two Able Men, whereof the King chuſeth One, for any of the places named. And the next in the Church Government is the
Arch-Deacon, who tho' a Presbyter himſelf, is ſo named for that he hath Charge over the Deacons, who are to be guided and directed by him under the Biſhop; and of theſe are Sixty in England. And next under them are
Deacons, or Deans, from the Greek〈…〉〈 in non-Latin alphabet 〉, becauſe anciently ſet over Ten Canons at the leaſt, which Canons were prudent and pious Paſtors, placed in a Collegiate manner at every Cathedral or Apoſtolick See, where they might not only be ready to aſſiſt the Biſhop in certain weighty Caſes, but alſo fit themſelves for Government and31 Authority in the Church; and accordingly in every Cathedral Church in England is
A Dean, and under him a certain number of Prebendaries or Cannons; and this Dean is ſometimes ſtyled, Alter Epiſcopi Oculus, the other being the Arch-Deacon; and of theſe Deacons are 26 Deans of Cathedral and Collegiate Churches, and 544 Prebendaries. And next are
Rural Deans, or Archi-Presbyters, ſo called, becauſe they had uſually charge over Ten Country Parſons, Presbyters or Prieſts, having the Guidance and Direction of them; and of theſe are many in England. And in the laſt place are
Paſtors, Presbyters or Prieſts of every Pariſh, commonly called Rectors, unleſs the Praedial Tithes are Impropriated; and then they are called
Vicars, quaſi Vice Fungentes Rectorum; and of theſe Rectors, or Parſons and Vicars are about 9700, beſides Curates, who for Stipends aſſiſt ſuch Rectors and Vicars, that have the Cure of more Churches than One.
Of all which, with their manner of Election, Conſecration, Function, Precedence, Priviledges and Duties, &c. you may Read more at large in32 ſeveral Authors, who have writ particularly thereof; to whom I refer, and proceed to the firſt Great Wheel moved by the King and his Privy Council in the Eccleſiaſtical Government, which is
BEing a National Synod, which the King (by the Advice of his Privy Council) uſually Convokes, for the Church Legiſlative Power; or for making Eccleſiaſtical Laws, or conſulting of the more weighty Affairs of the Church, in this manner:
The King directs his Writ to the Archbiſhop of each Province, whereupon the Archbiſhop directs his Letter to his Dean, citing himſelf peremptorily; and then willing him in like manner to Cite all the Biſhops, Deans, Archdeacons, Cathedrals and Collegiate-Churches, and all the Clergy of his Province, to the Place, and at the Day prefixt in the Writ: But directeth withal, that One Proctor ſent for each Cathedral and Collegiate Church, and Two for the Body of the Inferiour Clergy of each Dioceſs may ſuffice.
33The Dean Provincial accordingly directs his Letters to the Biſhop of every Dioceſs within the Province, Citing them in like manner to appear perſonally; and the Cathedral and Collegiate Churches, and Inferiour Clergy of his Dioceſs, to ſend their Proctors to the Place, and at the Day appointed; alſo to certifie to the Archbiſhop, the Names of all ſo Summoned by them.
The Place where the Convocation of the Clergy was uſually held, was heretofore at St. Paul's Church; of latter Times in King Henry the Sevenths Chappel at Weſtminſter.
The Higher Houſe in the Province of Canterbury, conſiſting of Twenty two Biſhops, of whom the Archbiſhop is Preſident, ſitting in a Chair at the Upper end of a Great Table, and the Biſhops on each Side of the ſame Table, all in their Scarlet Robes and Hoods, the Archbiſhops Hood Furr'd with Ermin, the Biſhops with Minever.
The Lower Houſe, conſiſting of Twenty two Deans, Twenty four Prebendaries, Fifty four Archdeacons, and Forty four Clerks, repreſenting the Dioceſan Clergy; in all One hundred Sixty ſix Perſons.
34Their Juriſdiction is to deal with Hereſies, Schiſms, and other meer Spiritual and Eccleſiaſtical Cauſes, and therein to proceed Juxta Legem Divinam, & Canones Eccleſiae; and as they are called, ſo they are often commanded by the King's Writ, to deal with nothing that concerns the King's Laws of the Land, his Crown and Dignity, &c. And the ſame is ſo Declared by Act of Parliament 25 Hen. 8. cap. 19. And what Cannons they make with the Royal Aſſent, are binding upon themſelves and all the Laity: But before the above-mentioned Act, a Diſm•granted by the Clergy in the Convocation, did not bind the Clergy before the Royal Aſſent.
The firſt Day of their meeting, the Upper Houſe chuſe a Biſhop for their Prolocutor; and the Lower Houſe (being required by the Higher) chuſe them a Speaker or Prolocutor, whom by two Members they preſent to the Upper Houſe, One of them making a Speech in Latin, and then the Elect Perſon makes another Speech in Latin; and then the Archbiſhop Anſwers in Latin, and in the Names of all the Lords approves the Perſon.
35Both Houſes Debate and Tranſact only ſuch matters as His Majeſty by Special Commiſſion alloweth.
In the Higher Houſe all things are firſt propoſed, and then communicated to the Lower Houſe.
The Major Vote in both Houſes prevails.
Out of Parliament time they uſually aſſemble about Nine of the Clock in the Morning: And firſt, the Junior Biſhop ſays (in Latin) Prayers, beginning with the Litany and Prayer for the King, &c. In the Lower Houſe the Prolocutor ſays Prayers.
The Parliament, when required, confirms the Conſults of the Clergy, that the People may be thereby induced to obey the Ordinances of their Spiritual Governours.
The Archbiſhop of York, at the ſame time holds a Convocation for his Province at York in like manner, and by Correſpondence doth debate and conclude the ſame Matters with the Convocation for the Province of Canterbury.
Inter Leges Inae, Anno Domini 727, A Convocation of the Clergy is called Magna Servorum Dei frequentia.
36All the Members of both Houſes have the like Priviledges for themſelves and Menial Servants, as the Members of Parliament, and this by Statute.
Now they are required to ſubſcribe Three of the XXXIX. Articles. Vide Stat. 13 Eliz. cap. 19. And the Canons ratified by King James, 1 Jac. 1. And for
THere are provided divers Excellent Courts; the chief whereof for Criminal Cauſes, was
THe Juriſdiction whereof was Enacted 1 Eliz. That Her Majeſty, Her ▪ Heirs and Succeſſors, ſhould have power by Letters Patents under the Great Seal, to ▪ Nominate and Authorize ſuch perſon or perſons, being Natural born Subjects to Her Highneſs, as Her Highneſs, her Heirs or Succeſſors ſhould think fit, to Exerciſe and Execute all manner of Eccleſiaſtical Juriſdiction within the Realms of England and Ireland, or any other Her Highneſs Dominions, to Viſit and Reform all Errours, Hereſies or Schiſms, Abuſes, Offences37 and Contempts, &c. which by any manner of Spiritual and Eccleſiastical Power, can or may be lawfully Reformed, &c. And that ſuch perſon or perſons ſhould have full Power by Virtue of the ſaid Act, and Her Majeſties Letters Patents, to Exerciſe and Execute the Premiſſes according to the Tenour and Effect of the ſaid Letters Patent.
And upon Declaration of this Act the Lord Coke raiſes two Queſtions: Firſt, What Cauſes ſhould belong to this Court: Secondly, In what caſes they may Fine and Impriſon? As to the firſt it is certain, That by the principal Clauſe of Reſtitution in that Act, all Spiritual and Eccleſiaſtical Juriſdiction heretofore exerciſed or uſed, or which might have been lawfully exerciſed or uſed, were by the Authority of that Parliament annexed and united to the Imperial Crown of this Realm. For whatever Power or Juriſdiction did belong to, or was exerciſed by the Pope De facto, doth now De jure belong to the King: But by reaſon the Eccleſiaſtical Judges, before the making of that Act, ought to have proceeded according to the Eccleſiaſtical Cenſures of the Church; and could not Fine and Impriſon, unleſs they had Authority by Act of Parliament: Therefore the38 Lord Coke, by reaſon of the Clauſe i•this Act, That the Commiſſioners ſhall Execute the Premiſſes, according to the Teno••of the Letters Patent; which Clau••refe•s•o the former parts of this Act viz The Ancient Juriſdiction reſtore•by this Act,•a•th, the Commiſſione•had not power to Fine and Impriſon.
This Commiſſion was uſually grante•to perſons of the Higheſt Quality i•Church and State, ſo often, and for〈◊〉long time, as the King did thin•fit.
In Queen Elizabeths Time, ſaith th•Lord Coke, it was Reſolved, the Hig•Commiſſion ſhould be limitted to certia•Enormities and Exorbitant Cauſes ▪ And many Preſidents were brought〈◊〉Prohibitions againſt their Authority〈◊〉Fine and Impriſon, both out of th•Kings-Bench and Common-Pleas. B••this Court being now Abrogated by th•Statute of 16 & 17 Car. 2. cap. 11.
The Courts of the Archbiſhop〈◊〉Canterbury come next in courſe, th•Higheſt of which is,
SO called from the Arched Church of St. Mary in Cheapſide, where this Court hath been uſually kept, as appears by Record in Edward the Firſt's time. The Judge hereof is the Dean of the Arches, who under the Archbiſhop of Canterbury, hath Juriſdiction over a Deanery, conſiſting of Thirteen Pariſhes within London, exempt from the Juriſdiction of the Biſhop of London. Hither are directed all Appeals in Eccleſiaſtical Matters, within the Province of Canterbury. And to this Court belong divers Advocates, all Doctors of the Civil Law, Two Regiſters and Ten Proctors. The next Court of the Archbiſhop is,
KEpt within the Archbiſhop's Palace, and medleth not with any manner of Contentious Juriſdiction; but only with Matters pro forma, as Confirmation of Biſhops, Elections, Conſecrations, and Matters of Voluntary Juriſdiction; as granting the Guardianſhip of the Spiritualties, Sede vacante of Biſhops, Admiſſion and Inſtitution to Benefices, Diſpenſing with Banns of Matrimony, and ſuch like.
THis is alſo a Court, although it holdeth no Plea of Controverſie:〈◊〉belongeth to the Archbiſhop, and his Officer, is called Magiſter ad Facultates.
And the Authority is raiſed by the Statute of 25 H. 8. cap. 21. whereby Authority is given to the Archbiſhop and his Succeſſors to grant Diſpenſations, Faculties, &c. by himſelf or his ſufficient Commiſſary or Deputy, for any ſuch matter heretofore had at the See of Rome, or by the Authority thereof.
THis is the Court where Teſtaments are proved, and Adminiſtrations granted, where the Party dying within his Province hath bona Notabilia within ſome other Dioceſs than where he dieth, which regularly is to be to the value of Five pounds, but in the Dioceſs of London, it is Ten pounds compoſition.
By 16 Rich. 2. Rot. Par. not in Print, It is aſſented in full Parliament, that the King may make his Teſtament, which before that was doubtful; and41 Hen. 4th made his Teſtament, and his Executors refuſing, Adminiſtration was granted by the Archbiſhop of Canterbury, with the Teſtament annexed to the ſame.
When the King is made Executor, he Deputes certain Perſons to take the Execution upon them, and appoints others to take the Accompt.
The Probate of every Biſhop's Teſtament, or Granting Adminiſtration of his Goods, althô he hath not Goods but within his own Juriſdiction, doth belong to the Archbiſhop.
From this Court the Appeal is to the King in Chancery.
The Archbiſhop of York hath the like Courts, and alſo the Court of Audience.
THe Archbiſhop of Canterbury hath a peculiar Juriſdiction in divers Pariſhes within the City of London, and other Dioceſſes, &c. and there are Fifty ſeven ſuch Peculiars within the Province of Canterbury.
It is an Ancient Priviledge of the See of Canterbury; that whereſoever any Manors or Advowſons do belong unto that See, that place forthwith42 becomes exempt from the Ordinary and is reputed a Peculiar, and of th•Dioceſs of Canterbury.
And there are certain peculiar Juri•dictions, belonging to ſome certain Par•ſhes; the Inhabitants whereof, are exem••from the Archdeacon's Juriſdiction, an•ſometimes from the Biſhops Juriſdictio•
And a Dean or Prebendary having〈◊〉Rectory or Impropriation in anoth••Biſhop's Dioceſs, hath often a Court〈◊〉Peculiars, held for him in that partic•lar Pariſh.
Note, That there are ſome Deans〈◊〉England without any Juriſdiction, on•for Honour ſo Stiled, as the Dean〈◊〉the Chappel Royal, and Dean of th•Chappel of St. George at Windſor. Mo••over ſome Deans there are without a••Chapter; yet enjoying certain Juri•dictions, as the Dean of Croyden, th•Dean of Battel, and the Dean of Bo••ing, &c.
THe Conſiſtory Courts of every Archbiſhop and Biſhop of every Dioce••in Eccleſiaſtical Cauſes, is holden befo••his Chancellor in his Catheral Church or before his Commiſſary in places〈◊〉43the Dioceſs, too far remote for the Chancellor to call them to the Conſiſtory.
From theſe the Appeals are to the Archbiſhop of either Province reſpectively.
By many Records in Hen. 3. and Edw. 1. It appears no Biſhop could make a Will of his Goods or Chartels coming of his Biſhoprick, &c. without the King's Licenſe; wherefore the Biſhops conſented to give the King Six things, That they might freely make their Wills. Firſt, Their beſt Horſe or Palfrey, with Bridle and Saddle. Secondly, A Cloak with a Cape. Thirdly, A Cup with a Cover. Fourthly, A Baſon and Ewer. Fifthly, One Ring of Gold. Sixthly, His Kennel of Hounds, for which a Writ iſſueth out of the Exchequer after the Deceaſe of every Biſhop.
The King by the Verdict of Twelve recovered 10000 Marks againſt the Biſhop of Norwich, for that he proſecuted againſt the Abbot of St. Edmundſbury, to appear before him againſt the King's Prohibition; For which it was adjudged, That his Temporalities ſhould be ſeiſed, and his Body taken.
If an Alien or Stranger be preſented to a Benefice, the Biſhop ought not to admit him.
THis Court is to be holden, whe••and in what place the Archdeaco•either by Preſcription or Compoſitio•hath Juriſdiction in Spiritual Caſes with in his Archdeaconry; and from hi•the Appeal is to the Dioceſan, and〈◊〉is called Oculus Epiſcopi.
And every Archdeacon hath〈◊〉Court and Juriſdiction, where ſmall••differences ariſing within his Limits a••pleaded.
Alſo, the Dean and Chapter hath〈◊〉Court, and take Cognizance, of Cauſ•hapning in places belonging to th•Cathedral.
Laſtly, There are ſome peculi••Juriſdictions, the Inhabitants where••are exempt ſometimes from the Arc•deacon's Juriſdiction, and ſometim•from the Biſhops Juriſdiction.
THis Court is ſo called becauſe Delegated by the King's Commiſſio•under the Great Seal, to ſit upon an A•peal to the King in the Court of Cha•cery in three Cauſes. Firſt, When〈◊〉45Sentence is given in an Eccleſiaſtical Court, by the Archbiſhop or his Official. Secondly, When a Sentence is given in any Eccleſiaſtical Cauſe in places exempt. Thirdly, When any Sentence is given in the Admirals Court, by the order of the Civil Law.
And having ſpoken of Appeals in Eccleſiaſtical Cauſes, that you may know the Reſolution of the Judges, and Learned in the Eccleſiaſtical Law, in what Cauſes, from what Courts, and in what time Appeals are to be made. Vide Lord Dyer & Coke's 4 Inſt. Eccleſiaſtical Courts.
THe Laws and Conſtitutions of the Eccleſiaſtical Government in England are: Firſt, General Canons made by General Councils, Arbitria Sanctorum Patrum, The Opinions of Fathers, the Grave Decrees of ſeveral Holy Biſhops of Rome. Next, our own Conſtitutions made anciently in ſeveral Provincial Synods, either by the Legates Otho and Othobone ſent from Rome, or by ſeveral Archbiſhops of Canterbury. All which are by the Statute of 25 Hen. 8. in force in England, ſo far as they are not Repugnant to the46 King's Prerogative, or the Cuſtoms, Laws or Statutes of the Realm: Then the Canons made in Convocations of latter times, as 1 Jac. and confirmed by his Royal Authority: Alſo, Statutes Enacted by Parliament touching Eccleſiaſtical Affairs: And Laſtly, Divers Cuſtoms not written; and where theſe fail the Civil Law takes place.
THe manner of theſe Tryals are firſt, a Citation goes out; Then they proceed to Bill, and Anſwer; then by Proofs, Witneſſes and Preſumptions, the matter is argued Pro and Con, and the Canon and Civil Laws Quoted; And then without Jury the Definitive Sentence of the Judge paſſeth, and after that Execution.
THe manner of Trying Criminal Cauſes is by way of Accuſation, Denunciation, or Inquiſition. The firſt, When ſome one takes upon him to prove the Crime. The ſecond, When the Church-Wardens preſent, and are not bound to prove, becauſe it is preſumed they do it without Malice, and47•hat the Crime is Notorious. Laſtly, By Inquiſition, when by reaſon of common fame, inquiry is made by the Biſhop Ex officio ſuo, by calling ſome of•he Neighbourhood to their Oath, or•he party accuſed to his Oath Ex officio. But by the prevailing part in the Long-Parliament, this power was taken from the Church, the want whereof is one main cauſe of the Libertiniſm and Debauchery of the Nation.
PUniſhments inflicted by theſe Spiritual or Eccleſiaſtical Courts, according to theſe Spiritual or Eccleſiaſtical Laws, are firſt, the party delinquent is admoniſhed. Next goes forth
Minor Excommunicatio, whereby he is Excommunicated or Excluded from the Church, or at leaſt from the Communion of the Lord's Supper, diſabled to be Plaintiff in any Suit, &c. and this commonly for Non-appearance upon Summons, or not obeying the Orders of the Court: This power of leſſer Excommunication the Biſhop may Delegate to any Grave Prieſt with the Chancellor. Then
Excommunicatio Major, is not only an Excluſion from the Company of Chriſtians48 in Spiritual Duties, but alſo i•Temporal Affairs. And this commonly for Hereſie, Schiſm, Perjury, Inceſt, &c. and for the more Terrour,〈◊〉is done by the Biſhop himſelf in prope•perſon; and being ſo Excommunicate a Man cannot be in any Civil or Eccleſiaſtical Court either Plaintiff or Witneſs; and in caſe any contin••Forty days Excommunicate, the King ' •Writ de Excommunicato capiendo is granted out of the Chancery againſt him ▪ whereupon he is caſt into Priſon without Bail, till he hath ſatisfied for th•Offence. And then there is
Anathematiſmus inflicted upon an obſtinate Heretick, whereby he is declared a publick Enemy to God, Rejecte•and Accurſed, and delivered over t•Eternal Damnation: And this is to b•done by the Biſhop alſo in his ow•perſon, aſſiſted by the Dean and Chapter, or Twelve other grave Prieſts. An•Laſtly, There is
Interdictum, whereby is prohibited〈◊〉Divine Offices, as Chriſtian Burial〈◊〉Adminiſtration of Sacraments, &c. i•ſuch a place or to ſuch a people: If this be againſt a people, it followeth the•whereſoever they go; but if againſt the place only, then the people may g•to Divine Office elſewhere; and beſides49 theſe general Cenſures of the Church, which reſpect Church-Communion, there is another touching the Body of the Delinquent, called
Publick Penance, when the Delinquent is to ſtand in the Church Porch on a Sunday, Bare-head and Feet, in a White Sheet bewailing himſelf, and begging every one that paſſeth by to pray to God for him, &c. and this by divers Writers appears to be the practice uſed by the Primitive Churches.
And this Puniſhment, if the Crime be not very notorious, may by the Canons of the Church of England, be commuted to a Pecuniary mulct to the Poor, or to ſome other pious Uſe.
TO the before-mentioned Puniſhments, both Clergy and Laity are ſubject; but there are Puniſhments to which the Clergy only are liable, as firſt,
Suſpenſio ab Officio, Is when the Miniſter for a time is declared unfit to execute the Office of Miniſter. Then,
50Suſpenſio à Beneficio, when the Miniſter is for a time deprived from the profits of his Benefice; and theſe two Cenſures are wont to be for ſmaller Crimes; Then
Deprivatio à Beneficio is for a greater Crime, wherein a Miniſter is wholly and for ever deprived of the profits of his Benefice or Living. And Laſtly,
Deprivatio ab Officio, when a Miniſter is for ever deprived of his Orders; and this is called Depoſitio or Degradati••and is commonly for ſome heinous Crime deſerving Death, and is performed by the Biſhop in a Solemn manner, pulling off from the Criminal his Veſtments, and other Enſigns of his Order; and this in the preſence of the Civil Magiſtrate, t•whom he is then delivered to be puniſhed as a Layman, for the like Offence.
And this may ſuffice for a ſho••view of the Eccleſiaſtical Government.
A Brief Account of the Eccleſiaſtical Government having been given: In the next place we are to Treat of the Civil Government, the firſt great Wheel moved therein by the King and his Privy Council, Being
BEfore the Conqueſt called the Great Council of the King, conſiſting of the Great Men of the Kingdom. It was alſo called Magnatum Conventus, or Praelatorum Procerumque Conſilium, and by the Saxons Michel Gemot and Witenage Mote; after the Conqueſt it was called Parliamentum, from the French word Parler, ſtill conſiſting of the Great Men of the Nation, as ſome hold, until the Reign of Hen. 3. when the Commons alſo were called: The firſt Writs to Summon or Elect them being ſaid to bear date 49 Hen. 3. above 400 years ago; ſo that now this High Court conſiſts of,
52The King, who being Caput, Principium & Finis Parliamenti, Sits there as in his Royal Politick Capacity.
The Lords Spiritual; As the Two Archbiſhops, and Biſhops being in number about Twenty four, who ſit there by Succeſſion, in reſpect of their Baronies; and to every one of theſe, Ex Debito Juſtitiae a Writ of Summons is to be directed.
The Lords Temporal; As Dukes, Marqueſſes, Earls, Viſcounts and Barons, who ſit there by reaſon of their Dignities; and were in the Lord Cokes time about 106, now near twice that number.
And every of theſe being of full Age, Ex Debito Juſtitiae ought to have a Writ of Summons. And
The Commons of the Realm being Knights of Shires, Citizens of Cities, and Burgeſſes of Burroughs; all which are reſpectively Elected by the Counties, Cities and Burroughs, and none of them ought to be omitted; and theſe were in number in the Lord Cokes time 493, now about 513 perſons.
Spiritual Aſſiſtants, are Procuratores Cleri, who are ſo called as by the Writ to the Biſhop before mentioned appears; to Conſult, and to Conſent, but never had Voices, as being no53 Lords of Parliament: And by the Treatiſe De modo tenendi Parliamentum, they ſhould appear cum praeſentia eorum ſit neceſſaria.
Temporal Aſſiſtants, Are all the Judges of the Realm; Barons of the Exchequer, and of the Coif.
The King's Learned Council, and the Civilians, Maſters of the Chancery, are called to give their Aſſiſtance and Attendance in the upper Houſe of Parliament, but have no Voice; and their Writs differ from the Barons, being Quod interſitis nobiſcum, cum caeteris de concilio nostro, ſuper praemiſſis tractaturi, veſtrumque Concilium impenſuri.
Romulus Ordained 100 Sena•ours, which were afterwards increaſed to 300; and of that number were our Houſe of Commons in Forteſcue's time.
The Perſon Summoning is the King, or in his Abſence the Cuſtos Regni, or in his Minority the Protector Regni doth Summon the Parliament, which cannot be begun, without the Kings Preſence, either in Perſon, or Repreſentation by Commiſſion under the Great Seal, or by a Guardian of England by Letters Patents.
54The manner of Summoning a Parliament is in manner following: About 40 days before their time of Sitting, the King cum Adviſamento Conſilij ſui, Iſſues out of Chancery Writs of Summons to every Lord of Parliament Spiritual and Temporal, Commanding the Lords Spiritual in Fide & Dilectione; and the Lords Temporal per Fidem & Allegiantiam to Appear, Treat, and give their Advice in certain Important Affairs concerning the Church and State, &c. And the Warrant is per ipſum Regem & Concilium.
And for Summoning the Commons, a Writ goeth to the Lord Warden of the Cinque Ports, for Election of the Barons of the Cinque Ports, who in Law are Burgeſſes; and to every Sheriff in the 52 Counties in England and Wales, for the Choice and Election of Knights, Citizens, and Burgeſſes, within every of their Counties reſpectively; Two Knights for each County; Two Citizens for each City; and One or Two Burgeſſes for each Burrough, according to Statute, Charter or Cuſtom.
Perſons Elected for each County ought to be Milites Notabiles, or at leaſtwiſe Eſquires or Gentlemen fit to be made Knights; they ought to be Native55 Engliſhmen, or at leaſt ſuch as have been Naturalized by Act of Parliament: No Alien or Denizen, none of the 12 Judges, no Sheriff of a County, no Eccleſiaſtical perſon having Cure of Souls, may be a Parliament Man. And for Legality of Sitting in Parliament, he muſt be 21 years old.
All the Members of Parliament both Lords and Commons, with their Menial Servants and neceſſary Goods, are Priviledg'd during the time of Parliament Eundo, Morando, & ad proprium redeundo; But not from Arreſts for Felony, Treaſon or Breach of the Peace.
If the King do not think fit the Parliament ſhall Sit at the day of Return of the Writ, he may by Writ Patent Prorogue them till another day, as was done 1 Eliz.
At the day of Meeting of the Parliament, The King, and by his Direction the Lord Chancellor, The Lord Keeper of the Great Seal, or ſome other by the Kings appointment, Declares the Cauſes of Calling the Parliament; as in Ed. 3. time, Sir Henry Green Lord Chief Juſtice, although the Lord Chancellor were preſent. And when a Biſhop is Lord Chancellor, he uſually takes a Text of Scripture56 in Latin and Diſcouſes thereupon ▪ And when a Judge, by way of Oration, he Declares the Cauſe of Calling the Parliament.
The Lords in their Houſe have power of Judicature. The Commons in their Houſe to ſome purpoſes have power of Judicature, and both together have power of Judicature. But this will require a whole Treatiſe. 4 Co. Inst 23.
The Lords give their Voices from the Puiſne Lord Seriatim, Content, or not Content.
The Commons give their Votes by Yeas, and Noes; and if it be doubtful Two are appointed, one for the Yeas, another for the Noes, to number them; the Yeas going out, and the Noes ſitting ſtill as being content with their Condition; but at a Committee although of the whole Houſe, the Yeas go on one ſide, and the Noes on the other, whereby the greateſt number will eaſily appear.
The Royal Aſſent to Bills paſſed both Houſes, is given in this manner: The King Sitting in his Throne of State, with his Crown on his Head, in his Royal Robes, and the Lords in their Robes; The Clerk of the Crown Reads the Title of the Bills, to which the Clerk of the Parliament according57 to directions from the King, Anſwers; if a publick Bill Le Roy le veut; if a private Bill Soit fait comme el eſt Deſire; or otherwiſe Le Royn ſ'adviſera, being a abſolute Denial in a Civil way.
If it be a Bill for Money given his Majeſty; then the Anſwer is, Le Roy remercie ſes loyaux ſujets accepte leur Benevolence, & auſſi le veut.
The Bill for the King's General Pardon, hath but one Reading in either Houſe, for this Reaſon, becauſe they muſt take it as the King will pleaſe to give it: ſo the Bill of Subſidies granted by the Clergy, aſſembled in Convocation for the ſame Reaſon. When the Bill for the General Pardon is paſſed by the King; the Anſwer is thus, Les Prelates Seigneurs & Communes en ce Parliament Aſſembles, au nom de tous vos autres Sujets, remercient tres humblement votre Majeste & prient Dieu vous donner en ſante bonne Vie, & longue.
All Acts of Parliament before the Reign of Hen. 7. were paſſed, and enrolled in Latin or French, now in Engliſh.
Moſt of our ancient Acts of Parliament run in this Stile: The King at the Humble Request of the Commons, with the Aſſent of the Prelates, Dukes, Earls58 and Barons hath Ordained or Enacted; After it was thus, The King by the Advice and Aſſent of the Lords Spiritual and Temporal, and with the Aſſent of the Commons doth Enact: Of latter times it hath been thus, Be it Enacted by the Kings moſt Excellent Majeſty, by, and with the Advice and Conſent of the Lords Spiritual and Temporal, and of the Commons; Although the words of the Writ, for Summoning the Commons is only ad Conſentiendum, and not ad conſilium impendendum; as it is in the Writ to the Lords.
The Adjourments are made in the Lords Houſe, by the Lord Chancellor, to what other Day, or Place the King thinks fit.
The Prorogations are made in the ſame manner, only a Prorogation makes a Seſſions, and puts an end to all Bills not paſſed the Royal Aſſent.
At the Diſſolution of the Parliament the King commonly comes in Perſon, ſending for the Houſe of Commons: After Speeches made, the Lord Chancellor by the King's Command Declares the Parliament Diſſolved.
59The Houſe of Commons is not prorogued or adjourned, by the prorogation or adjournment of the Lords Houſe; but the Speaker, upon ſignification of the King's pleaſure, by the aſſent of the Houſe of Commons, doth ſay, This Houſe doth Prorogue, or Adjourn it ſelf. But when it is Diſſolved, the Houſe of Commons are ſent for up to the Higher Houſe, and there the Lord Keeper by the King's Commandment Diſſolveth them. And it may be obſerved, That as the Parliament cannot begin without the King's preſence, either in Perſon or by Repreſentation, ſo it cannot end without; Nihil enim tam conveniens eſt Naturali Aequitati, unumquodque Diſſolvi eo Ligamine quo ligatum eſt, Coke's 4 Inſt. 28.
The Proceedings and Tranſactions, being referr'd to Authors, who have Written thereof at large, we ſhall only mention ſome remarkable things concerning the ſame. And firſt,
Any Lord upon juſt cauſe to be abſent, may make his Proxy; but he cannot make it but to a Lord of Parliament: And a Commoner may not make a Proxy.
King John, in the Thirteenth year of his Reign, ſent Embaſſadours to Admiralius Murmelius, Great Emperour60 of Turkey, Sir Thomas Harrington and Sir Ralph Nicholſon, Knights, and Sir Robert of London, Clerk, Nuncios ſuos Secretiſſimos, to offer to be of his Religion, and become Tributary to him, and He and his Subjects would be his Vaſſals, and to hold his Kingdoms of him: But that Infidel Great Prince, as a thing unworthy of a King to Deny his Religion, and betray his Kingdom, utterly refuſed to accept. King John the next year ſurrendred his Kingdoms of England and Ireland to Pope Innocent the Third, paying 1000 Marks for them; which being afterwards Demanded with Homage by the Pope, Anno 40. Ed. 3. In full Parliament it was fully agreed, That Anſwer ſhould be Returned, That niether King John, nor any for him, could put Himſelf, his Realm, or People, in any Subjection without their Conſent; And that if the Pope did attempt to gain it by Force, they would reſiſt with all their power.
Rot. Parl. 4.2 Ed. 3. It is Declared in full Parliament, That they could not aſſent to any thing in Parliament, that tended to the Diſheriſon of the King or his Crown, whereunto they were ſworn.
61By the Law and Cuſtom of Parliament, when any New thing is Deviſed, they may Anſwer, That they dare not Conſent to it without Conference with their Countries, Co. 4 Inſt. 14, 34.
As every Court of Justice hath Laws and Cuſtoms for its directions, ſome by the Common Law, ſome by the Civil Law and Canon Law, ſome by Peculiar Laws or Cuſtoms, &c. ſo the High Court of Parliament, Suis propriis Legibus, & Conſuetudinibus ſubſistit.
Informations were preferr'd by the Attorney General againſt 39 Members of the Houſe of Commons, for Departing without the King's Licenſe, whereof ſix ſubmitted to their Fines, and Edmund Plowden, the Learned Lawyer, pleaded, That he remained continually from the beginning to the end of the Parliament, and took a Traverſe full of Pregnancy; and after his Plea was Sine die per demiſe le Reigne. In the Kings-Bench,
Upon Petition of Right to the King, either in Engliſh or in French, and the Anſwer thereunto Fiat Juſtitia, a Writ of Errour may be had directed to the Chief Justice of the Kings-Bench, to remove a Record in praeſens Parliamen•um.
62An Act of Parliament muſt have th•Aſſent of King, Lords, and Commons; but if it want this Threefold Conſent, it is not an Act, but an Ordinance.
Of Acts of Parliament ſome be Declaratory of the ancient Law, ſome be Introductory of a New Law, and ſome be of both kinds, by addition of greater Penalties, or the like.
In ancient Times all Acts of Parliament were in form of Petitions; and for the ſeveral Forms of Acts of Parliament, ſee the Prince's Caſe, 8 Co. Rep. 20.
The Paſſing of a Bill doth not make a Seſſions, but the Seſſions continueth till a Prorogation, or Diſſolution.
And the difference between an Adjournment and Prorogation is, that after an Adjornment all things ſtand as they did before; but after a Prorogation, al•former proceedings not paſſed the Royal aſſent, are made null and void.
When a Parliament is called and doth ſit, and is Diſſolved without any Act of Parliament paſſed, or Judgmen•given; then it is no Seſſions, but a Convention, Co. 4 Inſt. 28.
A Bill was preferred An. 6 Hen. 6. that none ſhould Marry the Queen Dowager of England without licenſe and aſſent of the King, on pain to loſe all63 his Goods and Lands. The Biſhops and Clergy aſſented by content, ſo far as the ſame ſwerved not from the Law of God, or of the Church; and ſo far as the ſame imported no deadly Sin. The Act of Parliament is holden good and abſolute; for that the aſſent of the Clergy could not be conditionally, neither was it againſt the Law of God, &c. as appears by Magna Charta, cap. 7. Confirmed by 32 Acts of Parliament, Co. 4 Inſt. fo. 35.
Of this Court it is ſaid, Si Antiquitatatem ſpectes eſt Vetuſtiſſima, ſi Dignitatatem eſt Honoratiſſima, ſi Juriſdictionem est Capaciſſima, Forteſcue.
— Huic nec metas rerum nec tempora pono.
King Henry the Eighth commanded Thomas Earl of Eſſex to attend the Chief Juſtices, and know, Whether a Man that was forth-coming, might be attainted of Treaſon by Parliament, and never called to anſwer. The Judges anſwered, It was a dangerous Queſtion, and that the High Court of Parliament ought to give Examples to Inferiour Courts, for proceeding according to Juſtice, and no Inferiour Court could do the like; and they64 thought the High Court of Parliament would never do it. But being by expreſs Commandment of the King, preſſed by the ſaid Earl to give a Direct Anſwer; they ſaid, That if he be attainted by Parliament, it could not come in queſtion afterwards, whether he were called, or not called to Anſwer, which was according to Law: Altho' they might have made better Anſwer, ſince by Magna Charta, no Man ought to be condemned without being called to anſwer. But, Facta tenent multa, quafieri prohibentur.
By ancient Law, when any one was to be charged in Parliament with any Crime, Offence or Miſdemeanour, The King's Writ was directed to the Sheriff, to ſummon and enjoyn the Party to appear before the King in the next Parliament; or otherwiſe it may be directed to the party himſelf, as appean by the Writs.
King Henry the Eighth being in Convocation ackowledged Supream Head of the Church of England, thought it no difficult matter to have it confirmed by Parliament; but was ſecretly deſirous to have the Impugners of it incur High Treaſon; but having little hope to effect that concerning High Treaſon, ſought to have it paſs in ſome other65 Act by words cloſely couch'd; and therefore in the Act for Recognition of his Supremacy, the Title and Style thereof is annexed to the Crown. Afterwards by another Act, whereby many Offences are made High Treaſon; It is amongſt other things Enacted, That if any perſon or perſons, by Word or Writing, Practiſe or Attempt to deprive the King or Queen, or their Heirs apparent, of their Dignity, Title or Name of their Royal Eſtates, ſhould be adjudged Traytors: Whereupon many were put to death.
The Will of Richard the Second, whereby he gives Money, Treaſure, &c. to his Succeſſors, upon condition that they obſerve the Ordinances and Acts made at the Parliament in the 21th year of•is Reign, is adjudged void, it being in•eſtraint of the Sovereign Liberty of his Succeſſors. And it is a certain Maxim, That Leges poſteriores, priores•ontrarias abrogant.
The Acts of Parliament, or Petition of Right, may be Inrolled in any, or all•ther Courts of Record.
Every Member ought to come, or•e may be Fined; and the Sheriff, if he•ake not due Return of all Writs may•e puniſhed.
66King Henry the Eighth projected in Parliament, No King or his Kingdom could be ſafe without Three Abilities; Firſt, To be able to Live of his own, and to be able to defend his own Kingdom. Secondly, To aſſiſt his Confederates, elſe they would not aſſiſt him. Thirdly, To reward his well deſerving Servants. Now the Project was, That if the Parliament would give all Priories, Monaſteries, &c: That for Ever in time to come, He would take care the ſame ſhould not be converted to private uſe, but employ'd to enrich hi•Exchequer, for the purpoſes aforeſaid. To maintain 40000. Soldiers for ſtrengthning the Kingdom, The Subjects ſhould not be burthened with Subſidies, Loans &c. That for 29 Lords of Parliament Abbots and Priors, he would create〈◊〉Number of Nobles. Now the Monaſteries were given to the King, but〈◊〉Proviſion for the Project made by theſ•Acts, only Ad faciendum populum, theſ•Poſſeſſions were given to the King an•his Succeſſors, to do therewith at his an•their own Wills, to the pleaſure of Al•mighty God, and the honour and pro••of the Realm. Now obſerve the Cat•ſtrophe in the ſame Parliament of Hen••the Eighth: When the Opulent Prior•of St. John's of Jeruſalem was given t•67the King, he demanded and had a Subſidy both of the Clergy and Laity: And the like he had in the 34th of Henry the Eighth, and in the 37th of Henry the Eighth: And ſince the Diſſolution of Monaſteries he Exacted divers Loans, and againſt Law received the ſame.
If the King by Writ call any Knight or Eſquire, to be a Lord of Parliament, he may not refuſe, for the good of his Country.
The Fees of Knights of Parliament is Four ſhillings per diem, Citizens and Burgeſſes Two ſhillings, Coke's 4. Inſt. 46.
The Parliament at Coventry, Anno 6 Hen. 4. for that in the Writs it was Directed purſuant to the precedent Ordinance of the Houſe of Lords, That no Lawyer ſhould be Elected; It was called Indoctum Parliamentum; and ſuch Prohibition was Null and Void, and the Ordinance afterwards Repeal'd.
The Sheriff of Bucks was Returned Knight for Norfolk, and being afterwards ſerved with a Subpoena, pendente Parliamento, had the priviledge of Parliament allowed him, 1 Caroli Regis primi.
68Judges are not to Judge of any Law Cuſtom, or Priviledge of Parliamen•they being more properly to be learne•out of the Rolls of Parliament Record•and by Preſidents, and continual experience, than by or from any Man Penn.
Parliament, from Parler la Ment〈◊〉called, becauſe every Member ough•ſincerly Parler la Ment for the good〈◊〉the Common-wealth, is the Higheſt an•moſt Honourable Court of Juſtice〈◊〉England; conſiſting of the King, th•Lord Spiritual and Temporal, and th•Commons conſiſting of Knights; Citize•and Burgeſſes; and in Writs and Judical Proceedings, it is called Comm••Concilium Regni Angliae: It appeareth That divers Parliaments have bee•holden before and ſince the time of the Conqueſt, which are in print, and many more appearing in ancient Records an•Manuſcripts.
There have been in that time, and ſince the Conqueſt till the Lord Coke•time 280 Seſſions of Parliament; and at every Seſſions divers Acts made, n••ſmall number whereof are not in Print Cokes 1 Inſt. 110. a.
The Juriſdiction of this Court is ſ•Tranſcendent, That it Maketh, In•largeth, Diminiſheth, Abrogateth, Repealeth69 and Reviveth Laws, Statutes, Acts and Ordinances, concerning Matters Eccleſiaſtical, Capital, Criminal, Common, Civil, Marſhal, Maritime, &c. And none can begin, continue or diſſolve the Parliament but by the King's Authority, Cokes 1 Inſt. 110.
None can be ſent out of the Realm, no not into Ireland againſt his will, albeit by Order of Parliament, Cokes 2 Inst. 47, 48.
Trial by Peers, of Peers of Parliament, was very ancient and in the time of the Conqueror, both for Men and Women; and anciently thoſe that were not Lords of Parliament were Judged in caſe of Treaſon or Felony, by the Peers of the Realm.
By Authority of Parliament it was declared, That Urban the 12th was duly elected Pope, Cokes 2 Inſt. 274.
Few or none of the Acts made in Ed. 1. time have been Repealed, Cokes 2 Inſt. 280.
Where Communitatem Angliae, and many ſuch Words are taken for the Parliament; and as there was a legal word Guidagium, being an Office for guiding Travellers through dangerous paſſages, ſo the Laws of the Realm are•o guide the Judges in all Cauſes, Cokes 2 Inst. 526.
70Cardinal Woolſey endeavouring to bring in the Civil Law, was the occaſion that but one Parliament was held from the 7th to 21th year of Hen. 8. Cokes 2 Inst. 626.
George Nobles, a Prieſt, Attainted by Verdict for Clipping the Kings Coi•was Adjudged and Executed at Tybur•as a common perſon; and Merx〈◊〉ſhop of Carliſle, for Treaſon again••Hen. 4. had Judgment as in caſe〈◊〉High Treaſon: But Cor Regis in manu D•mini, he was pardoned, Cokes 2 Inſt. 63•
The Parliament at Oxford, 42 Hen. 〈◊〉was called Inſanum Parliamentum 12 Ed. 2. The Parliament of Whiteband 5 Ed. 3. Parliamentum bonum, 10 R. 〈◊〉Parliamentum quod fecit Mirabilia, 21 R. 〈◊〉Magnum Parlimentum, 6 H. 4. Parl••mentum indoctum, 4 Hen. 6. Parliam••tum Fuſtium. 14 H. 8. The Black Parl••ment. 1 E. 6. Parliament 'pium, & 1 Ma••Parliament 'propitium, Parliaments of Q. Pia, Juſta, & Provida, 21 Jac. 1. Foelix Pa•••amentum: And the Parliament in the〈◊〉year of King Ch. 1. Benedictum Parl••mentum. The Reaſons of moſt of the Appellations appear upon Record, C••3 Inſt. 2.
It is Lex & Conſuetudo Parliamen••That whereſoever the Parliament S••Proclamation ſhould be made, forb•ing71 wearing of Armour, and all Plays and Games of Men, Women or Children, Cokes 3 Inſt. 160.
The Britons loved the Laws of England, and petitioned to have the Laws of England in all caſes of the Crown uſed in Wales: And now ſeeing there are Sheriffs in Wales, the Writs for Election of Knights, Citizens and Burgeſſes are directed to them, returnable in Chancery, Cokes 4 Inst. 241.
Every Lord of Parliament ought to have a Writ of Summons, ſent to him out of the Chancery at leaſt 40 Days before the Parliament begin; and the Writ of Summons to the Barons is, Quod interſitis cum Praelatis Magnatibus & Proceribus ſuper dictis Negotijs tractaturi veſtrumque Conſilium Impenſuri; but the Writ to the Aſſiſtants, as all the Judges, Barons of the Exchequer, of the Coif, the Kings Learned Councel, and the Civilians, Maſters of the Chancery, are different from the other; as thus, Quod interſitis Nobiſcum, & cum caeteris de Concilio noſtro, (and ſometimes Nobiſcum only) ſuper Praemiſſis tractaturi, veſtrumque Conſilium Impenſuri; and the Writs of Summons to the Biſhops, &c. you may ſee in Cokes 4 Inſt. 4, 5, 6, 9, 10, 14, 47, 48, 50.
72And at the Return of theſe Writs, the Parliament cannot begin but by the Royal Preſence of the King, either in Perſon, or by Repreſentation, Cokes 4. Inst. 6.
The Writs of Summons are to be found in the Cloſe Rolls, and the Forms of them you may ſee in Cokes 4 Inſt. 9, 10. Which Forms, as alſo the Forms of all other original Writs, are not to be altered but by Act of Parliament; and where they Iſſued out of the Chancery, and were Returnable in the Court of Parliament, the Return thereof could not be altered, and Returnable into the Chancery: But by Act of Parliament, 7 H. 4. cap. 15. They be now returned into the Chancery, and kept in the Office of the Clerk of the Crown there; ſee the Statute of 4 H. 7. cap. 15. and Cokes 4 Inst. 9, 10.
Who ſhall be Electors, and the Sheriffs duty in Electing, you may ſee in the ſeveral Statutes, whereof ſome are mentioned in Cokes 4 Inst. 48.
If Erroneous Judgment be given in the Kings-Bench, it ſhall upon petition of Right be brought into Parliament, to be reverſed, or affirmed; and the proceedings thereupon you may read in Cokes 4 Inſt. 21.
73None of the Judges of Kings-Bench, Common-Pleas or Exchequer are Eligible, becauſe Aſſiſtants in the Houſe of Lords, nor any of the Clergy, becauſe of the Convocation; but thoſe who have Judicial places in other Courts are Eligible, Cokes 4 Inſt. 47.
Thorpe could not be Speaker, unleſs he were Knight of the Shire, Cokes 4. Inſt. 47. in the margent.
Tenants in ancient Demeſne, not contributary to the expences of Members in Parliament; nor Chaplains who are Maſters in Chancery, to Proctors in Parliament, F. N. B. 507. Cokes 1 Rep. 25, 160.
A ſaving in an Act of Parliament, Repugnant to the Body of the Act is void, Cokes 1 Rep. 47. Alton Woods's Caſe.
He who taketh a Gift by Act of Parliament, ſhall not have other Eſtate than is given by the Act, Cokes 1 Rep. 47, 48. Alton Woods Caſe.
An Act of Parliament, or the Common Law, may make an Eſtate void as to one, and good as to another, which a Man by his breath or words cannot do, Cokes 1 Rep. 87. Corbet's Caſe.
74The Statute of 27 Hen. 8. Extirpating and Extinguiſhing all the Eſtate of the Feoffees, Non poſſunt agere ſeu permittere aliquid in prejudice of Ceſtuy que uſe, Cokes 1 Rep. 132. Chudley's Caſe.
An Act of Parliament, may make Diviſion of Eſtates, and therefore not like to Caſes at Common Law, Cokes 1 Rep. 137. Chudleigh's Caſe,
An Act of Parliament, is the Higheſt Conveyance, and a latter doth take away a former Act, Cokes 2 Rep. 46.
Parliamentum, Teſtamentum, Arbitramentum, to be conſtrued according to the intent of the makers, Cokes 3 Rep. 27. Butler and Baker's Caſe.
Of Statutes which concern the King, the Judges ought to take notice, Cokes 4 Rep. 13. Lord Cromwell's Caſe. The like of general Acts, Cokes 4 Rep. 76. Holland's Caſe.
The of Stat 13 & 18 Eliz. concerning Leaſes by Deans and Chapters are general Statutes, whereof the Court ought to take notice, although they be not found by the Jurors, Cokes 4 Rep. 120. Davenport's Caſe.
Miſtaking the word Diſtrictionem for Destructionem, altering the ſenſe of the Statute of Glouceſter, although but by one letter, adjudged it was matter of75 ſubſtance, and the Writ could not be amended, Cokes 5 Rep. 45. Freeman's Caſe.
The Acts of 7 Hen. 7. and 3 Hen. 8. are perpetual Acts, for the word King doth include all his Succeſſors, Cokes 6 Rep. 27. Caſe of Soldiers.
Althô the Statutes ſpeak only of the Party, yet Executors and Adminiſtrators ſhall take advantage of it, Cokes 6 Rep. 80. Sir Edw. Phitton's Caſe.
Reſolved in Englefield's Caſe, That by tender of the Ring according to the Condition, the Uſes were void, and the Eſtate veſted in the Queen by force of the Attainder, and of the Act, 33 H. 8. Cokes 7 Rep. 15.
In the caſe of the Prince, the King's Charter having the Force of Parliament, is ſufficient in it ſelf without any other Act; for it is affirmed by Parliament, by Stat. 9 H. 5. That it was agreed at the Parliament, 11 Ed. 3. That the eldeſt Sons of the Kings of England were Dukes of Cornwal, and that Dutchy ſhould remain to them, without being given elſe where, Cokes 8 Rep. Caſe of the Prince, from 25 to 29.
In many caſes the Common Law doth comptrol Acts of Parliament, and ſometimes ſhall adjudge them76 void. For when an Act of Parliament is againſt common Right and Reaſon, or repugnant and impoſſible to be performed, the Common Law ſhall adjudge it void, Cokes 8 Rep. 118. Dr. Bonham's Caſe, and 128, 129, Caſe of the City of London.
When an Act of Parliament maketh any Coveyance good againſt the King or other Perſon certain, it ſhall not take away the Right of any other, althô there be not any ſaving in the Act, Cokes 8 Rep. Sir Francis Barington's Caſe 138.
In caſe of Sentence of Deprivation of one, and Preſentment, Inſtitution and Induction of another after, by relation of a General Pardon, all are reſtored without Appeal or new Preſentation, Admiſſion or Inſtitution, Cokes 9 Rep. Lord Sanchar's Caſe.
In an Act of Parliament miſnaming of a Corporation, when the expreſs meaning appeareth, ſhall not avoid the Act, no more than in a Will, Cokes 10 Rep 54 to 57. Caſe of the Chancellor of Oxford.
If an Act of Parliament were intended to Repeal a former Act, it could not be by general and doubtful words, Cokes 10 Rep 138. the Caſe of Cheſter Mills.
77It cannot be intended that a Statute made by Authority of the whole Realm, ſhould do any thing againſt Truth, Cokes 11 Rep. 14. Priddle and Napper's Caſe.
The Title of the Act is no part of the Act, as the preamble is; and Penal Statutes ſhall be taken by intendment to remedy miſchiefs, and ſuppreſs Crimes, Cokes 11 Rep. 34. Powlter's Caſe.
Penal Statutes are to be followed (chiefly in Informations) ſtrictly and in terminis, according to the purview of the Act, Cokes 11 Rep. 56. Dr. Forſter's Caſe.
Where the Rule is, Leges Poſteriores priores contrarias abrogant, countrarium est duplex, Vide Cokes 11 Rep. 63. Dr. Foſter's Caſe.
Statut 'Praerogativa Regis ſaith, The King ſhall have Annum Diem & Vastum, which is as much as to ſay; he ſhall have the Trees, &c. to his own diſpoſition, Cokes 11 Rep. 83. Levis Bowles's Caſe.
By Stat. 4. Ed. 3.14. A Parliament ſhall be holden once a year, and oftner if need be.
By Stat. 36 Ed. 3.10. A Parliament ſhall be holden every year.
78By Stat. 5 R. 2. Stat. 2.4. Every Perſon and Comminalty having Summons of Parliament ſhall come thither, in pain to be amerced, or otherwiſe puniſhed; and if the Sheriff doth not Summon them, he ſhall be likewiſe amerced, or otherwiſe puniſhed, as hath been uſed in times paſt.
What perſons are to be Elected, Knights, Citizens and Burgeſſes, to ſerve in Parliament; the manner of their Election and Levying of their Expences, and the divers Acts of Parliament for regulating their Elections; you may ſee in the Statutes at large.
By Stat. 6 Hen. 8.16. No Knight, Citizen, Burgeſs or Baron of any of the Cinque-Ports, ſhall depart from the Parliament without Licenſe of the Speaker, and Commons in Parliament aſſembled, to be entred upon Record, in the Clerk of the Parliaments Book, on pain to loſe their Wages.
By Stat. 33. H. 8.21. The Kings Royal Aſſent by his Letters Patents under the Great Seal, and Signed by his Hand, and notified in his abſence to the Lords and Commons aſſembled in the upper Houſe, is, and ever was of as good ſtrength and force, as if the King were perſonally preſent, and had publickly aſſented thereunto.
79By Stat. 12 Car. 2. cap. 1. It's declared, That the Parliament begun the 3d of November 16. Car. 1. is diſſolved, and that the Lords and Commons now ſitting are the two Houſes of Parliament, notwithſtanding any want of the Kings Writs of Summons, or any other defect.
Stat. 16 Car. 2 cap. 1. The ſitting and holding of Parliament ſhall not be intermitted above three years; and now a new Parliament is to be called every Three years, Stat. 6 W. & M.
Stat. 30 Car. 2. cap. 1. No Peer ſhall Vote, make Proxy, or Sit during any Debate in the Houſe of Peers, nor any Member of the Houſe of Commons Vote, or Sit there after their Speaker Choſen, till they firſt take the Oaths of Allegiance and Supremacy, and Subſcribe, and Repeat the Declaration in the Act mentioned, between the hours of nine in the Morning, and four in the afternoon, at the Tables in the middle of the ſaid Houſes, in a full Houſe, in ſuch order as each Houſe is called over; for which Declaration and other Matters ſee the Statute at large: But now thoſe Oaths by late Acts are altered, and others appointed in their ſtead.
A Brief account having been given of the Parliament, in which is comprehended the Legiſlative power, in Temporal Affairs: We are next to conſider the Executive power in the ſame, and that is generally in the King, he being the Fountain of Juſtice, and Lord Chief Juſtice of Engla•d; and becauſe he is Caput, Principium, & Finis Parliamenti, by which the Laws are made, and nothing can have the force of Law, without his conſent given in Parliament, by Le Roy le veut, therefore All the Laws of England are called the Kings Laws; All the Courts of Judicature are called the Kings Courts; And all the Judges of theſe Courts are called the Kings Judges.
And the High Court of Parliament, being the Higheſt Court of Judicature, all other Courts and Perſon in England are ſubject to it.
HIs Stile is Seneſchallus Angliae, which word Seneſchallus hath ſeveral Derivations; yet as being applied to England; it is properly derived from Sen, that is, Juſtice and Schale, that is, Governour or Officer; that is, Praefectus ſeu Officiarius Juſtitiae. And this agreeth well with his Authority and Duty, to proceed Secundum Leges & Conſuetudines Angliae.
This Office is very ancient, and was before the Conqueſt; For in an ancient and Authentical Manuſcript, Intituled, Authoritas Seneſchalli Angliae, where putting an Example of his Authority; ſaith, Sicut accidit Godwino Comiti Kanciae tempore Regis Edw 'anteceſſoris Willielmi Ducis Normandiae pro hujuſmodi male geſtis & conſilijs ſuis (per Seneſchallum Angliae) adjudicatus & forisfecit Commitivam ſuam.
In the time of the Conqueror, William Fitz Eustace was Steward of England; and in the Reign of William Rufus and Hen. 1. Hugh Grantſemenel Baron of Hinkley, held that Barony by the ſaid Office.
82Of ancient time this Office was of Inheritance, and appertained to the Earldom of Leiceſter, as it alſo appeareth by the ſaid Record: Seneſchalcis Angliae pertinet ad Comitivam de Leiceſter, & pertinuit ab antiquo; That is, that the Earldom of Leiceſter was holden by doing of the Office of Steward of England. Other Records teſtified, tha•it ſhould belong to the Barony of Hinkley. The truth is, That Hinkley was parcel of the Poſſeſſions of the Ear•of Leiceſter; for Robert Bellomont Ear•of Leiceſter, in the Reign of Hen. 2 Married with Petronilla, Daughter and Heir of the ſaid Hugh Grantſemenel Baron of Hinkley, and Lord Steward o•England, and in her right was Steward of England: And ſo it continued, until by the Forfeiture of Simon Montford, it came to King Hen. 3. who i•the 50th year of his Reign, created Edmond his Second Son Earl of Leiceſter, Baron of Hinkley, and High Steward of England, which continued is his Line, until Henry of Bullinbrook, So•and Heir of John of Gaunt, Duke o•Lancaſter and Earl of Leiceſter; who was the laſt that had any Eſtate of Inheritance in the Office of the Steward of England; ſince which time it wa•never granted to any Subject, bu•83but only hac vice; and the reaſon was, for that the Power of the Steward of England was ſo tranſcendent, that it was not holden fit to be in any Subjects hands: For the ſaid Record ſaith, Es Sciendum eſt quod ejus Officium eſt ſupervidere, & regulare ſub Rege, & immediatè poſt Regem totum regnum Angliae, & omnes Ministros legum infra idem Regnum temporibus pacis & guerrarum, &c. and proceedeth particularly with divers exceeding High Powers and Authorities, which may well be omitted, becauſe they ſerve for no preſent uſe.
And albeit their Power and Authority have been ſince the Reign of Henry the Fourth, but hac vice, yet is that hac vice limited and appointed: As when a Lord of Parliament is Indicted of Treaſon or Felony, then the Grant of this Office, under the Great Seal, is to a Lord of Parliament, reciting the Indictment; Nos conſiderantes quod Juſtitia eſt virtus excellens & Altiſſimo complacens, aeque prae omnibus uti volentes; ac pro eo quod Officium Seneſchalli Angliae, cujus praeſentia pro adminiſtratione juſtitiae & executione ejuſdem in hac parte facien requiritur, ut accepimus jam vacat: De fidelitate, ſtrenuitate, provida circumſpectione, & indu•tria veſtris plurimum c•nfidente•ord•n•vimus & conſtituimus vos84 ex hac cauſa & cauſis Seneſchallum noſtrum Angliae ad Officium illus cum monibus eidem Officio in hac parte debitis & pertinentibus hac vice gerend ', accipiend' & exercend 'dantes & concedentes vobis tenore praeſentium plenam & ſufficientem poteſtatem & authoritatem, ac mandatum ſpeciale indictamentum praedict', &c. So that it appeareth that this great Officer is wholly reſtrained to proceed only upon the recited Indictment. And he to whom this Offic is granted, muſt be a Lord of Parliament, and his proceeding is to be Secundum Leges & Conſuetudines Angliae; for ſo is his Commiſſion: And hereof you may read more at large in Coke's 3 Inſt. Chap. High Treaſon. Alſo at every Coronation he hath a Commiſſion under the Great Seal hac vice, to hear and determine the Claims for Grand Serjeanties and other Honourable Services, to be done at the Coronation for the ſolemnization thereof: For which purpoſe the High Steward doth hold his Court ſome convenient time before the Coronation. See a Preſident hereof before the Coronation of King Richard the Second, John Duke of Lancaſter, then Steward of England (who in Claims before him was ſtyled, Tres Honourable Seignior Roy de Caſtile & Leon, &85 Seneſchalle d' Engleterre,) and held his Court in Alba Aula apud Weſtm. die Jovis proximè ante Coronationem; Quae quidem coronatio habita & ſolemnizata fuit die Jovis ſequente, viz. 16 Julij Anno 1 Ric. 2.
The firſt that was Created Hac vice, for the Solemnization of the Coronation of Henry the Fourth, was Thomas, his ſecond Son; and upon the Arraignment of John Holland Earl of Huntingdon, the firſt that was Created Steward of England Hac vice, was Edward Earl of Devon.
When he ſitteth by force of his Office, he ſitteth under a Cloth of State, and ſuch as direct their Speech unto him, ſay,May it pleaſe your Grace, my Lord High Steward of England. The ſtyle of John of Gaunt was, Johannes filius Regis Angliae, Rex Legionis & Caſtellae, Dux Aquitaniae & Lancaſtriae, Comes Derbiae, Linconliae & Leiceſtriae, Seneſchallus Angliae. And in reſpect his Power, before it was limited, was ſo Tranſcendent, no mention is made of this Great Officer in any of our ancient Authors, the Mirror, Bracton, Britton or Fleta. It ſeemeth they liked not to treat of his Authority; neither is he found in any Act of Parliament, nor in any Book Caſe before the 1ſt of Henry86 the Fourth, and very few ſince: which hath cauſed me to be the longer (ſaith the Lord Coke) in another place, to ſet forth his Authority and due proceeding upon the Arraignment of a Peer of the Parliament, by Judicial Record and Reſolution of the Judges, agreeable with conſtant Experience.
As the Peers of the Realm that be Tryors or Peers are not ſworn, ſo the Lord Steward being Judge, &c. is not ſworn; yet ought he according to his Letters Patents to proceed Secundum legem & conſuetudinem Angliae, Co. 4. Inst. cap. 4.
In Enditemene de Treaſon ou Felony ver•un des Pieres del Realm, le Tryal eſt per ſ•s Pieres, quel maner de tryal in Appel, neſ•grauntable; per que depuis que cel Trial per ſes Pieres, eſt le proper Trial que appertient al piere del Realm, quant ſur Enditement de Treaſon ou Felony il ad plead d•rien culpable, Veions l'order & proces d•cest Tryal. Appiert An. 1. H. 4. fol. 1. & An 13 H. 8. fol. 11. que quant un Seigniour del Parlement ſerra arraigne de Treaſon〈◊〉Felony dount il eſt endite: Le Roy perſ••Letters patents ferra un graunde & ſag•Seigniour d'eſtre de grand Seneſcha••d' Engleterre pour le jour de l'arraignment, qui devant le dit jour, ferra precept a ſon Serjaunt d'Arms qui eſt appoint d•luy87 ſervire durant le temps de ſon Commiſſion, a faire venir devaunt luy 20 ou 18 Seigniours del Parlement a meſme la jour, Et puis al jour, quant le Seneſchalle ſerra ſouth le drape d'estate ſur l'arraignment del priſoner, & ad fait lye ſon Commiſſion, le dit Serjaunt retourna le dit precept, & les Seigniours ſerront de ceo demaund '& quant ils ount apparus, & ſerrount en lour places, le Conſtable del Tower ſerra demaund a ameſner al Court ſon priſoner, quel ſerra conduct per luy al barre. Et donques le dit graund Seneſchal monſtra a le priſoner la cauſe pour quel le Roy avoit aſſemble la les Seigniours & luy, & commaundra luy de reſponder ſauns aſcun pavour, & ſur ceo cauſera le Clerk del Coron a lier l'Enditement a luy, & de luy demander ſil ſoit culpable ou nemy, a quel apres que il ad reſp' de rien culpable, Le dit Clerk demand 'ouſter de luy coment il voile este try: A quel il peut dire per Dieu & ſes Pieres. Et maintenant ſur coe, Les Serjeants & Attorney le Roy, deneront Evidence vers luy: A quel quant le priſoner reſpondue; Le dit Conſtable ſerra commaund de retirer le dit priſoner del barre a aſcun lieu pour le temps que les dits Seigniors ſecretment parleront en le dit Court enſemble. Et ſur ceo les Seigniors ſe levent ſuis de lour places, & conſultant enſemble, & ceo que ils facent ils facent ſur lour honours, ſans aſcun ſe•rement88 d'estre miniſter a eux. Et quant eux touts ou les greinder part de eux ſont agrees, Ils returneront a lour places, & ſeeront. Et donque le grand Seneſchal demaundera del plus puiſne Seignior aperluy, ſil qui eſt arraign, ſoit culpable, ou nemy, & iſſint del ceſtuy que eſt prochein al puiſne, & iſſint del remenant ſeriatim tanque il eſt peruſe touts, & cheſcun des Seigniors, reſpondra aperluy. Et donques le dit, Seneſchal remaundra pur le dit priſoner, qui ſerra reameſnus al barr, a qui le dit Seneſchal reherſera le Verdit & donera Judgment accordant. Et ceſt matter de Tryal, eſt done come ſemble per le Statute de Magna Charta cap. 29. qui eſt in ceſt manner:
Nullus Liber homo capiatur vel impriſonetur, aut diſſeiſietur, de libero tenemento ſuo, vel libertatibus, vel liberis conſuetudinibus ſuis, aut utlagetur, aut exuletur, aut aliquo modo deſtruatur, nec ſuper eum ibimus, nec ſuper eum mittemus, niſi per legale judicium parium ſuorum vel per legem terrae; Nulli vendemus, nulli negabimus, aut differemus juſtitiam vel rectum.
89Stat. 20 Hen. 6.9. Tryal of Dutcheſſes, Counteſſes and Baroneſſes, for Treaſon or Felony, ſhall be as Noblemen, Peers of the Realm, and not otherwiſe, notwithſtanding the Statute of Magna Charta, cap. 29. which mentioneth Men only to be Tryed by their Peers.
Mes nul de ceux Statutes, ad este miſe in ure d'extender a un Eveſque ou Abbe, coment que ils injoyent le noſme del Seignior de Parlement, car ils nont cel noſme d'Eveſque ou Abbe ratione Nobilitatis, ſed ratione Officij, ne ont lieu en Parlement in reſpect de lour Nobility, eins in reſpect de lour poſſeſſion, ſcil. L'auncient, Baronies annexes a lour Dignities. Et accordant a ceo, il y ad divers Preſidents d'ont l'un fuist in temps le Roy Henry le 8. Et vide P. 10 E. 4. f. 6. Que un des Piers endite de Treaſon ou Felony: Peut ſi pleiſt al Roy eſtre arraign de ceo en le Parlement, & donque les Seigniors Eſpirituels ferront un Procurator pur eux. Eo que per le Canonical Leys, ils meſmes ne doient condemner aſcun a mort, Stamford's Pleas of the Crown, fol. 152.
CAlled Curia Cancellariae, becauſe a•ſome think the Judge of the Cou•ſate antiently Infra Cancellos, at th•Eaſt end of our Churches, being ſeparated per Cancellos from the Body of the Church, as peculiarly belonging to the Prieſt, were then••called Chancels. But others derive it••ther from the Power of the Lord Chancellor; who is called Cancellarius à Cancellando, The higheſt point of his Power being to Cancel the Kings Letter Patents, and damning the Inrollme••thereof, by drawing ſtrokes through〈◊〉like a Lattice, in ſeveral caſes; as whe••the King grants any thing upon fa•••Suggeſtion, or what by Law he cannot grant.
And in the Chancery are two Court•one of Ordinary Juriſdiction, Cora••Domino Rege in Cancellaria; And th••other of Extraordinary Juriſdiction.
The Court of Ordinary Juriſdictio••proceeds according to the Right Li••of the Laws and Statutes of the Real••Secundum Legem & Conſuetudinem Angliae; and hath power to hold Plea〈◊〉Scire facias for Repeal of the King〈◊〉Letters Patents, of Petitions, Monſtra••91de droits, Traverſes of Offices, Partitions in Chancery, of Scire facias upon Recognizance in this Court, Writs of Audita Querela, to avoid Executions in this Court, Dowment in Chancery by the Writ De Dote aſſignanda, upon Offices found, Executions upon the Statute Staple, or Recognizance in nature of a Statute Staple, by the Act of 23 H. 8. But Execution upon Statute Merchant is retornable into the Kings Bench, or Common Pleas; all perſonal Actions, by or or againſt an Officer or Miniſter of this Court, in reſpect of their Service, or Attendance there: But theſe, if the Parties deſcend to Iſſue, this Court cannot try by Jury, but the Lord Chancellor, or Lord Keeper delivereth the Record by his proper Hands into the Kings Bench to be tried there; becauſe for that purpoſe both Courts are accompted but one, and after Tryal had, to be remanded into Chancery, and there Judgment to be given; but if there be a Demurrer in Law, it ſhall be argued and adjudged in this Court.
This Court is Officina Justitiae, out of which all Original Writs, and Commiſſions under the great Seal do Iſſue, which great Seal is Clavis Regni, and for theſe ends this Court is ever open. 92And for that, if any be wrongfully Impriſoned in the Vacation, the Lord Chancellor may grant an Habeas Corpus to do him Juſtice, which only other Courts can do in Term time; and alſo, may grant Prohibitions in Term time or Vacation, which are not returnable; but if not obeyed, then may this Court grant an Attachment upon Prohibition returnable either in the Kings Bench or Common Pleas.
The Author of Novae Narrationes written about the time of E. 3. ſaith, Curia Cancellariae Regiae eſt Curia Ordinaria pro Brevibus Originalibus emanandu, Sed non Placit is Communibus tenendis. The Proceedings of this Court remain in Filacijs in the Office of the Petty Bagg.
Divers Acts of Parliament give Authority to the Lord Chancellor to determine divers Offences and Cauſes in the Court of Chancery, which is ever intended in this Court, proceeding in Latin, ſecundum Legem & Conſu•tudinem Angliae; and the Defendant ſhall not be Sworn to his Anſwer, nor Examined upon Interrogatories; but upon Iſſue joyned it ſhall be tried in the Kings Bench, ut in ſimilibus Caſibus ſolet. And thus having ſpoken ſomewhat of the Ordinary Juriſdiction of this Court, we now come to treat of
PRoceeding according to the Rule of Equity, Secundum Aequum, & Bonum. But before we ſet forth the Juriſdiction and manner of proceeding therein, it may not be thought improper to ſet forth and deſcribe what this Equity is, and that it may the better be underſtood, let us conſider what leadeth thereunto, which is firſt,
Syndereſis; That is, a Natural power of the Soul, fixed in the higher part thereof, moving to good, and abhorring evil; and the Divine Wiſdom joyneth the beginning of Secondary things; to the latter end of the firſt things, as an Angel is Intellectual by Nature, and not made rational by Diſcourſe; and to this nature Man by Syndereſis approacheth, and is joyned. Secondly,
Reaſon; For when Man was Created he received from God a double Eye, the exteriour of the Fleſh, whereby he might ſee the viſible things; and the Interiour of Reaſon, whereby he might know the inviſible; to the end that, by that of the Fleſh, he might behold, know and avoid his viſible Enemies, and by that of94 Reaſon, be enabled to overcome his Spiritual Enemies, who war againſt his Soul. And moreover ▪ Reaſon according to the Learned is that power of the Rational Soul which diſcerneth between good and evil, the better by compa••ng the one with the other, which alſo chooſeth virtue and loveth God: And Reaſon is divided into two parts, the Superiour and the Inferiour; for the ſuperiour part of Reaſon tendeth only to Divine Eternal things, and endeavoureth and reaſoneth, that this is to be done, or not to be done, becauſe God hath commanded or prohibited it. The inferiour part of Reaſon is declined, or bent to the Government of temporal things; and endeavoureth or reaſoneth to prove by Humane Laws that this is to be done, o•not to be done, or that it is honeſt o•diſhoneſt, or that it is expedient, o•not expedient for the Common-wealth And in the next place we come to conſider and ſpeak of
Conſcience, Which is a word compounded of Cum & Scientia, and is as much as to ſay Knowledge of one thing with another; and is thus ſaid to conſi••in two things, Knowledg by himſelf ▪ and Knowledge with another: In the firſt, Conſcience importeth a certain95 natural Act, not of knowing only, but moving alſo, and alſo inclineth the Soul to proſecute good and to avoid evil; and in this manner it is accompted the ſame as above in Reaſon, and is alſo conjoyned to the ſuperiour light of Reaſon, which is called Syndereſis. Therefore St. Jerom and others, call Conſcience it ſelf Syndereſis, and then Conſcience it ſelf is always right. In the ſecond place, Conſcience importeth more properly Knowledg with another thing, ſtill with ſome particular Act; and thus Conſcience properly ſpeaking, is no other thing than the applying of a certain Knowledg to ſome particular Act, from whence it may be deduced, that from the moſt perfect knowledg of ſome Law or Science, and the right application of that knowledg to ſome particular Act, followeth the moſt pure, perfect and beſt Conſcience; and if there be a defect in knowledg of the truth of that Law, or in the application of the ſame to ſome Act, there followeth thereof an Error, or defect of Conſcience. And as Syndereſis delivereth a univerſal Maxim or Principle, in which it cannot Err, ſcilicet; That an unlawful thing is not to be done; now it may be aſſumed that an Oath is unlawful,96 it being ſaid Math. 5. Ego autem di••vobis non jurare omnino; But if any wi••hold from theſe words, that an Oath is lawful in no caſe, he erreth in Conſcience, becauſe he hath not full knowledg of the truth of the ſaid Goſpel nor doth confer that place of Scripture with others, in which an Oath is allowed to be lawful: And the reaſon why Conſcience may Err in the aforeſaid Aſſumption and the like, is, becauſe Conſcience is formed from the Aſſumption of ſome particular Propoſition or Queſtion, under univerſa•Rules of things to be done; and as the light of a Candle is put in a Houſe, that they may ſee what things are i•the Houſe; ſo God hath placed Conſcience in the middle of the Rational Soul, as a Light whereby it may diſcern what is to be done, or not to be done; and now let us proceed to deſcribe
Equity, Which is Juſtice, weighing all circumſtances tempered with the ſweetneſs of Mercy, which ought to be kept in every Law, and this he well underſtood who ſaid, Ipſae eteni•Leges cupiunt, ut Jure regantur; and the Wiſeman ſaith, Noli eſſe juſtus multu••▪ otherwiſe Summa juſtitia, ſumma inj•ſtitia fit.
97But that we may more clearly declare what Equity is, It is to be known, that becauſe it is impoſſible to inſtitute any General Rule of Law, which will in no caſe be defective, therefore Legiſlators attend to that which happeneth in many things, and not to particular caſes, nor indeed can they, ſince to obſerve the Sentence of Law in ſome Caſes, is both againſt the Equality of Juſtice and Common Good; ſo that in ſome Caſes it is good, yea abſolutely neceſſary (praetermitting the words of the Law) to follow that which reaſon of Juſtice requireth. And to this end Equity is ordained, which is alſo called Epicaya, ſcilicet, to moderate the Rigour of the Law, and it taketh not away the very Right, but that which ſeemeth to be Right, by general determination of Law. And caſes may happen in which the Law of God, and the Law of Reaſon, would be violated by the obſervance of them; as in the Law of England there is a general Prohibition, that it ſhall not be lawful for any Man to enter into the Ground of another without Authority of the Owner, or of the Law; yet it is excepted, That if Beaſts by the Highway eſcape into another Man's Corn, he that driveth them may juſtifie the98 Entry to fetch them out; and many other ſuch like. And thus it appears, That Equity rather attends the intention than the words of Law.
And thus having briefly ſet forth what Equity is, we are next to know that this Court of Extraordinary Juriſdiction grounded thereupon, relieveth none but ſuch who are without remedy in other Courts; For nunquam decurriter ad extraordinarium, ſed ubi defecit Ordinarium.
This Court is Superiour to the other Tribunals, that ſo the rigour of the Law in them might be here moderated, and amended according to Conſcience and Equity; and proceeding by Engliſh Bill, the Witneſſes are examined in private; the Decrees in Engliſh or Latin; no Jury, but all Sentences given by the Judge of the Court, much like to the Courts of the Civil Law;••binds the perſon only, and not his Lands or Goods.
But referring the full proceeding an•practiſe therein, to thoſe Books a••Authors who treat thereof at large We ſhall next give a•rief accompt of.
THe Lord Chancellor, or Lord Keeper of the Great Seal, is created Per traditionem Magni Sigilli ſibi, per Dominum Regem; And by taking his Oath conſiſting of ſix Articles, the ſubſtance whereof is:That he ſhall well and truly ſerve the King and his People in the Office of Chancellor or Lord Keeper, Shall do Right to all People according to the Uſages and Laws of the Realm, Shall truly Counſel the King, and preſerve and advance the Rights of the Crown;And he is ſole Judge in both of the before mentioned Courts in Chancery, being Summum ambientis animi quaſi ſolſtitium, and is Magiſtratuum omnium Antiſtes.
And to the Lord Chancellor are twelve Aſſiſtants, called Maſters (anciently Clerici Cancellariae) of whom the chief is,
The Master of the Rolls, who hath a Place of great Dignity, and is in the Gift of the King; either for Life, or during the Kings Pleaſure, and hath Jure Officij the gift of thoſe conſiderable Offices of the Six Clerks in Chancery, hath the keeping of the Rolls, and the Houſe of the Converted Jews,100 and in the abſence of the Chancellor, hears Cauſes, makes Orders by virtue of a Commiſſion with two Maſters, and that Jure Officij. And the
Maſters of Chancery, who are commonly Doctors of the Civil Law, are Aſſiſtants to the Court and ſit there by turns to ſhew what is the Equity of the Civil Law, and courſe of the Court, and what is Conſcience: And theſe Maſters ought to be expert in the Common Law, to ſee the framing of original Writs according to Law; which are not of courſe, whereupon ſuch are called in ancient Authors Brevia Magiſtralia. And next to theſe is,
The Clerk of the Crown, who by himſelf or his Deputy continually attends the Lord Chancellor for ſpecial matters of State, and hath a place in the higher Houſe of Parliament; he makes all Writs for Elections of Members of Parliament, Sitting in Parliament upon Warrant directed to him upon the Death, or removal of any Member, and all Commiſſions of Oyer and Terminer, Gaol Delivery, and many other Commiſſions for diſtribution of Juſtice. And next is,
101The Prothonotary of the Court, whoſe Office is chiefly by himſelf, or Deputy to Expedite Commiſſions for Embaſſies. And then
The Clerk of the Hamper or Hanaper, ſometime ſtiled Warden of the Hamper, whoſe Office is to receive all Money due to the King, For the Seals of Charters, Patents, Commiſſions and Writs, and to attend the Keeper of the Seal daily in Term time, and at times of Sealing, with Leather Bags now (but anciently probably with Hampers,) wherein are put all Sealed Charters, Patents, &c. And then delivers thoſe Bags to the Comptroller of the Hamper.
The Warden of the Fleet is to take off the Priſoners ſent from this Court for Contempt to the King or his Laws, or that will not pay their Debts, &c. who commonly Executes it by a Deputy.
The Serjeant at Arms, whoſe Office is to bear a great Guilt Mace before the Lord Chancellor, or Keeper for the time being.
The Six Clerks, whoſe Office is to Inrol Commiſſions, Pardons, Patents, Warrants, &c. that are paſſed the Great Seal; they were ancienly Clerici, and afterwards forfeited their Places if they102 did Marry. Theſe are the Attorneys as well for Plaintiff, as Defendant in every Suit in Court.
Two Examiners, Their Office is to Examine Witneſſes upon Oath, and put their Depoſitions and Anſwers to their Interrogatories in Writing.
Three Clerks of the Petty Bag, Their Office is to make all Patents for Cuſtoms, Comptrollers, Conge d'eſlire. Firſt, Summons of Nobility, Clergy, Knights, Citizens, and Burgeſſes to Parliament.
The Subpoena Office executed by a Deputy, is to Iſſue out Writs to Summon Perſons to appear in Chancery.
The Clerk of the Patents, or Letters Patents under the great Seal of England, and may be executed a Deputy.
The Regiſter of the Court, hath under him Deputies, Two Regiſters for the Court, Two Regiſters for the Rolls, Entring Clerks, and one Clerk of the Reports, or keeper of the old Book.
The Affidavit Office granted by Letters Patents, where all Affidavits are Filed, and may be executed by a Deputy.
The Curſitors are Twenty and four, who are appointed to ſeveral Shires, and are to make out original Writs103 that belong to this Court, or Common Pleas, and theſe are a Corporation within themſelves, and many of them Execute their Places by Duputies.
By Stat. 15 H. 6.4. none ſhall ſue forth a Subpaena, untill he find ſurety to ſatisfie the Defendant his Damages and Coſt, in caſe he do not veriſie his Bill.
Three things are to be Judged in Conſcience, by the ancient Rule (viz.) Covin, Accident and breach of Confidence.
This Chancery is ever open, and never is or can be Adjourned, Cokes 2 Inſt. 53.
In ſe Defendendo lies no Appeal; And when it is found ſo, the King muſt pardon it of courſe; That is, in the Court of Chancery, The Pleas whereof be Coram Domino Rege in Cancellaria. And there the Lord Chancellor upon the Record certified to him in the Chancery, by a Writ of Certiorari, ſhall of courſe, by force of the Statute of Glouceſter cap. 9. Grant him his Pardon, without ſpeaking thereof to the King, Cokes 2 Inſt. 316.
The ordinary power of the Chancery is very ancient; but no Court of Equity there until Hen. 4. time: But ſince, The Chancellors attend upon the King to decide matters in Equity,104 as the other Judges did, to decide Matters in Law.
The Chancellors in Edward the Thirds time, would come and ſit in the Common Pleas, and ſpeak there to Matters in Law, Co. 2. Inſt. 552, 553.
The Office of Keeper, ſame power with Chancellor, by the Statute of 5 Eliz. cap. 13.
King Alfred, Anno Domini 872. gave a Pardon to Wolstan, which was enrolled in the Court of Chancery, which Record Wolstan Vouched, Coke's 2 Inſt. 554.
The Chancery cannot bind the Intereſt in Lands, but the Perſon only, 1 Co. Rep. 139.
Therefore if Copyholder after Severance alien, there is no Means againſt him, but by Decree in Chancery, and that cannot bind the Land, 4 Co. Rep. 25. Copyhold Caſes.
HEld in a Chamber at one End of Weſtminſter-Hall, having the Sign of a Star over one Door thereof, Anciently called Camera Stellata, The Chamber of the Stars, Star-Chamber, and105 the Starred Chamber, in reſpect of the Roof of the Court, garniſhed with Golden Stars. Some have imagined, that it ſhould be called the Starred Chamber, becauſe Crimina Stellionat 'was there handled: Others of the Saxon word Steeran, to Steer or Rule as doth the Pilot; becauſe this Court did ſteer and govern the Commonwealth: Others, becauſe it is full of Windows: But the true cauſe of the Name was, becauſe the Roof was ſtarred.
This Court ſate twice a Week in Term-time, viz. on Wedneſdays and Fridays, except either of thoſe Days fell out to be the firſt or laſt Day of the Term, then it ſate not, but was conſtantly held the next Day after Term ended: But if any Cauſe was begun to be heard in Term-time, and for length or difficulty could not be ſentenced within the Term, it was continued and ſentenced after the Term.
Divers Acts of Parliament gave Juriſdiction to this Court, for to puniſh horrible and enormous Crimes, and other exorbitant Offences in Great Men; but ordinary Offences, and ſuch as may be ſufficiently puniſhed by the proceedings of the Common Law, this Court left to the ordinary Courts of Juſtice.
106The proceeding in this Court wasby Bill or Information, by Examination of the Defendant upon Interrogatories, and by Examination of Witneſſes, and rarely Ore tenus, upon the Confeſſion of the party in Writing under his Hand; which he again muſt confeſs freely in open Court, upon which Confeſſion the Court did proceed: But if the Confeſſion was ſet down too ſhort, or otherwiſe than he meant, he might deny it, and then they could not proceed againſt him, but by Bill or Information, which was the faireſt way.
The Informations, Bills, Anſwers, Replications, &c. and Interrogatories were (in Engliſh) Engroſſed in Parchment and Filed up. All the Writs and Proceſs of the Court were under the Great-Seal. The Sentences, Decrees and Acts of this Court were Ingroſſed in a fair Book, with the Names of the Lords and others of the King's Council and Juſtices that were preſent, and gave their Voices.
In the 28th year of the Reign of Edward the Third it appeareth, that the Retorns, Coram nobis, are in three manners: 1 Coram nobis in Camera, (which was afterwards called Camera ſtellata.) 2. Coram nobis ubicunque fucrimus in Anglia,107 which is the Kings-Bench: And 3. Coram nobis in Cancellaria.
By the Statute of 3 Hen. 7. the Letter whereof followeth: It was Ordained, That the Chancellor and Treaſurer of England, and the Keeper of the King's Privy Seal; or two of them, calling to them a Biſhop, and a Temporal Lord of the Kings moſt Honourable Privy Council, and the two Chief Juſtices of the Kings-Bench and Common-Pleas for the time being, or other two Juſtices in their abſence, upon Bill or Information put to the ſaid Lord Chancellor, or any other againſt any perſon, for unlawful Maintenance, giving of Liveries, Signs and Tokens, and Retainers by Indentures, Promiſes, Oaths, Writings or otherwiſe, Imbraceries of his Subjects, Untrue demeaning of Sheriffs in making of Pannels, and other untrue Returns, by taking of Money, by Injuries, by great Riots and unlawful Aſſemblies, have Authority to call before them by Writ or Privy Seal, the ſaid Miſdoers; and they and others by their Diſcretion, by whom the Truth may be known to Examine, and ſuch as they find therein Defective, to puniſh them after their Demerits, after the Form and Effect of Statutes thereof, made, in like manner and form, as they ſhould and ought to be puniſhed, if they were thereof Convict after the due Order of Law.
108Camerae Stellatae authoritatem prudentiſſimus Princeps Henricus Septimus, ita Parliamentaria adauxit & Conſtabilivit nonnulli primum inſtituiſſe falſo opinantur.
But the Act of 3. Hen. 7. did not raiſe a New Court; for there was a Court of Star Chamber before, and all the Kings Privy Council Judges of the ſame.
But By the Statute of 16 & 17. Car. 1. cap. 10. this Court is abſolutely Diſſolved.
THis Court is raiſed by the Statute of 14. E. 3. which followeth in theſe words:
Item, Becauſe divers Miſchiefs have hapned of late, that in divers places as well in the Chancery as in the Kings-Bench, the Common-Bench, and in the Exchequer, before the Juſtices aſſigned, and other Justices to hear and determine matters, the Judgments have been delayed ſometimes by Difficulty, ſometimes by divers Opinions of the Judges, and ſometimes for ſome other Cauſe. It is aſſented, eſtabliſhed and accorded, That from henceforth at every Parliament ſhall be choſen a Prelate, two Earls, and two Barons, which109 ſhall have Commiſſion and Power of the King to hear by Petition delivered unto them, the Complaints of thoſe that will complain to them of ſuch Delays and Grievances made, and they ſhall have power to come before them at Weſtminſter, or elſwhere, where the places or any of them ſhall be; the Tenour of Records and Proceſſes of ſuch Judgments ſo delayed. and to cauſe the ſame Juſtices to come before them, which ſhall be then preſent, to hear their cauſe and reaſons of ſuch delays; which Cauſe and Reaſons ſo heard by Good Advice of themſelves, the Chancellor, Treaſurer, the Juſtices of the one Bench and of the other, and other of the King's Counſel, as many and ſuch as ſhall ſeem convenient, ſhall proceed to take a good Accord, and make a good Judgment; and according to the ſame Accord ſo taken, the Tenor of the ſame Accord, together with the Judgment which ſhall be Accorded, ſhall be remanded before the Juſtices before whom the Plea did depend, and that they ſhall give Judgment according to the ſame accord: and in caſe it ſeems to them that the Difficulty be great, that it may not well be determined without Aſſent of the Parliament, that the ſaid Tenor or Tenors ſhall be brought by the ſaid Prelate, Earls and Barons in the next Parliament, and there ſhall be a final Accord taken what Judgment110 ought to be given in this caſe; and according to this Accord it ſhall be commanded to the Judges before whom the Plea did depend, that they ſhall proceed to give Judgment without delay.
Before the making of this Statute delay of Judgments was forbidden, both by the Common Law and by Acts of Parliament. By the Common Law 1. It is required, That Plena, & celeris, Justitia fiat partibus, &c. not plena alone, nor celeris alone, but both plena & celeris. All Writs of Praecipe quod reddat are, Quod juſte ſine dilatione reddat, &c. All Judicial Writs are Sine dilatione, &c. 2. There did and yet doth lye a Writ De procedendo ad judicium, when the Juſtices or Judges of any Court of Record, or not of Record delayed the party Plaintiff, or Defendant, Demandant, or Tenant, and would not give Judgment, and thereupon an Alias, Plur, and an Attachment, &c. doth lye: And the Words of the Writ be, Quia redditis Judicij loquelae quae eſt coram vobis, &c. de quadam tranſgreſſione eidem A. perpraefat. B. illata, ut dicitur, diuturnam cepit dilationem ad grave dampnum ipſius A. Sicut ex querela ſua accepimus: Vobis praecipimus, quod ad judicium inde reddend cum ea celeritate quae ſecundum Legem & conſuetudinem regni noſtri procedas, &c.
111Likewiſe when Juſtices or Judges of any Court of Record, or not of Record, give Judgment, and delayed the party of his Execution, the party grieved may have a Writ De executione Judicij; by which Writ the Juſtices or Judges are commanded, Quod executioonem judicij nuper redditi, &c. de loquela quae fuit, &c. per breve noſtrum, &c. ſine dilatione Fieri fac ', and thereupon an Alias, Plur', and Attachment, &c. do lye.
By the meeting together upon Adjournment of the Cauſe out of the Court where the Cauſe dependeth, &c. all the Judges, &c. which now we call an Exchequer Chamber Cauſe, Warranted by the Common Law and Ancient Preſidents before this Statute; and the frequent uſe of this Court of Exchequer Chamber hath been the Cauſe that this Court upon the Act of 14 E. 3. hath been rarely put in ure.
By the King's Writ, comprehending Quod ſi difficultas aliqua interſit, that the Record ſhould be certified into the Parliament, and to Adjourn the parties to be there at a certain Day, Si obſcurum & difficile ſit Judicium, ponantur judicia in reſpect 'uſque magnam curiam. An excellent Record whereof you may read in the Parliament holden112 at Weſtminſter the Tueſday after the Tranſlation of St. Thomas Becket, Ann•14 E. 3.
Secondly, By Acts of Parliament, Nulli vèndemus, nulli negabimus, aut differemus, justitiam vel rectum.
That it ſhall not be commanded neither by the Great Seal, nor by the Little Seal, nor by Letters, nor any other cauſe to delay Right; and albeit ſuch commandment come, &c. that by them the Juſtices ſurceaſe not to do Right in no manner.
In divers caſes the party grieved, ſhall have an Action for unjuſt delay.
But ſeeing neither the Common Law, nor any of the Acts of Parliament, do extend to Eccleſiaſtical Courts, it is then demanded, What if an Inferiour Ordinary will refuſe, or delay to admit, and inſtitute a Clerk preſented by the right Patron, to a Church within his Dioceſs or the like, or delay, or refuſe to give Sentence in a Caſe depending before him? It is Anſwered, That the Archbiſhop of the Province, may grant his Letters under his Seal to all and ſingular Clerks of his Province, to admoniſh the Ordinary within Nine113 days, to perform that which by Juſtice is deſired, or otherwiſe to cite him, to appear before him, or his Official at a day in thoſe Letters prefixed, and to cite the party that hath ſuffered ſuch delay, then, and there likewiſe to appear; and further to intimate to the ſaid Ordinary, that if he neither perform that which is enjoyned, nor appear, he himſelf without further delay, will perform the Juſtice required; or in the former of the ſaid Caſes, the party delayed, may have his Quare impedit, but that is thought not to be ſo ſpeedy a remedy, Cokes 4 Inſt. cap. 6.
THis Court is ſo called, becauſe antiently the King ſat there ſometimes in Perſon upon a high Bench, and the Judges upon a low Bench at his Feet, to whom the Judicature belongs in the abſence of the King.
And the Pleas here are betwixt the King and Subject; As for Treaſons, Felonies, Breach of the Peace, Oppreſſion, Miſgovernment, &c. And moreover it examineth, and corrects all Errors in facto, and in jure of all the Judges and Juſtices of England, in their114 Judgments and Proceedings, and this not only in Pleas of the Crown, but in all Pleas Real, Perſonal and Mixt, except only in the Exchequer. And in this Court are
Four Judges. Firſt, The Lord Chief Juſtice created by Writ thus, Mathis Hale Militi Salutem, Sciatis quod conſtitu•mus vos Juſticiarium Noſtrum capitalem, ad Placita coram nobis tenenda, durant•bene placito Noſtro, Teſte me ipſo ap•l Weſtminſt.
Three other Judges hold their Places by Letters Patents in theſe word, Rea Omnibus ad quos Praeſentes Litterae pe••nerint Salutem, Sciatis quod Conſtitu•mus Dilectum & Fidelem R.R. Militem, un••Justiciariorum ad placita coram nobis••nenda, durante bene placito noſtro, Test•&c.
Theſe Judges and all the Officers of this Court have Salaries from the King, and the Chief of them Liveries out of the great Wardrobe.
In this Court all young Lawyers, who have been called to the Bar are allowed to Plead and Practiſe.
This Court may grant Prohibition to keep other Courts, both Eccleſiaſtical and Temporal within their Bounds and due Juriſdiction.
115The Juriſdiction thereof is General, and extendeth to all England, is more uncontrolable than any other Court, becauſe the Law preſumes the King always is preſent there in Perſon.
None may be Judge here but a Ser•eant, who upon taking his Degree is obliged to wear a Lawn Coif under•his Cap for ever after.
The King hath wholly left matters of Judicature according to his Laws, to his Judges; and albeit the Delinquent ſhall be Fined at the Will of the King, Non Dominus Rex Camera ſua, nec aliter niſi per Justiciarios ſuos Finem imponit.
Errors in the Kings Bench cannot be reverſed, (except in certain particular caſes, by Stat. 27 Eliz. c. 8. wherein the•uriſdiction of the Court is ſaved) but in the High Court of Parliament.
A Record brought into this Court cannot (as it were being in its Center) be remanded back, unleſs by Act of Parliament; But Indictments of Fe•onies, and Murders may be remanded,•nd ſent by the Juſtices of that Court•nto the ſeveral Counties.
The Juſtices of the Kings Bench may grant a Niſi prius in caſe of Treaſon, Felony, and other Pleas; but if they116 perceive an Indictment to be removed into that Court by practiſe, or for delay, they may ſend it back again for Juſtice to be done.
In this Court the Sentence is give•by the Chief Juſtice, the others all〈◊〉the moſt part aſſenting. If they cannot agree, it is referred to a Demurrer i•the Exchequer Chamber, before all the Judges of both Benches, and Chie•Baron of the Exchequer: And now〈◊〉us ſpeak ſomewhat of
THe Prothonotary recordeth all Jud•ments, Orders and Rules of Cour••and all Verdicts given, being not〈◊〉Crown matters.
The Secondary is his Deputy for〈◊〉ſaid Cauſe, who keeps and mak•up theſe Records in Books, and alway•attends the Court.
The Clerk of the Crown Frames〈◊〉Indictments of Felony, Treaſon, M•ther, &c. all manner of Appeals, a••is after to Record them and enter〈◊〉Verdict, and to make and keep th•Records of theſe matters. And hath〈◊〉Deputy.
The Clerk of the Exigents Frames〈◊〉Proceſs of Exigi facias, and Reco••the Oulawry.
117The Clerk of the Papers keeps all Rolls, Script Pleadings, and other things which are not of Record.
The Custos Brevium Files all Writs Original and Judicial, after their Return by the Sheriffs, and is chargable for the ſame if imbezled.
The Cuſtos Sigìlli Seals all Judicial Writs, Patents and Licenſes iſſuing out of the Court, and taketh the Fee, and thereof makes Accompt.
The Attorneys which are for Plaintiffs, and Defendants in every Cauſe Frame and make Pleadings.
The Marſhal of the Court who either by himſelf, or his Deputy or Servants, attends the Court to receive Priſoners committed to their Cuſtody.
The Clerk of the Declaration, keeps and Files Declarations after they are Ingroſſed, and continued on the Back, from the Term you Declare, till Iſſue Joyned.
The Clerk of the Rules makes all Rules, and Enters them and gives Copies, and alſo Files all Affidavits, &c.
The Phillizers, one for each County, to make all mean Proceſs after Original, in proceeding to the Utlary.
118The Clerk of the Errors allows〈◊〉Writs of Error, and makes the Superſedeas thereupon, and Tranſcribes the Records into the Exchequer Chamber.
The Cryers always attend the Court, to call Non-ſuits, give Oaths to Wi•neſſes, Jury Men at Tryals, and d•ſuch other Buſineſs as the Court ſha••direct, and at the end of every Term do attend the Court.
The Porter of the Court, who bring•all Records into Court, when they a••to be uſed.
This Court may Bail any perſon fo•any Offence whatſoever; and if a Free man in any City, Burrough or Tow•Corporate be Disfranchiſed unjuſtly, albeit he hath not priviledge in th••Court, yet this Court may relieve the party, as appears in Coke's 11 Rep. Jam••Bagg's Caſe. Et ſic in ſimilibus.
H. P. Captus per querimoniam Merca••rum Flandriae, & impriſonatus offert Domino Regi Hus & Haut in plegio ad ſt••dum recto, & ad reſpondendum praedi•••Mercatoribus, & omnibus alijs qui v••ſus eum loqui voluerint, &c. The French word Hus ſignifying an Elder-Tree, and Haut the Staff of a Halbert, a••thought then to be Common Ba•changed now to Doo and Roo, and th••119then putting in Bail at one Man's Suit, was (in Cuſtodia Mareſchalli) to anſwer all others that ſhould Sue him by Bill, and this continueth to this Day.
A Scire facias to Repeal a Patent of the King, may be brought in this Court.
In Ancient time when Pleas were holden in Parliament, when the Parties deſcended to Iſſue, the Record was Adjourned into the Kings-Bench.
By Stat. 18 Ed. 3. The Oath to be given to Juſtices when they take their place is to this effect, viz. To ſerve the King in their Offices, To warn them of any Damage, do Juſtice, take no Bribe, give no Council where he is a Party, maintain no Suit, nor deny Right (though by command from the King,) To procure the Kings profit, and to be anſwerable to the King in Body, Lands and Goods, if found in default.
By Stat. 10. H. 6. not in Print, The Juſtices, Serjeants and the King's Attorney, ſhall be paid their Wages by the Treaſurer of England at Eaſter and Michaelmas, without any other Suit.
By Stat. 28 Hen. 8. All Attaints ſhall be taken in the Kings-Bench, and Common-Pleas, and not elſewhere.
120Stat. 5 Ed. 3.12. If Outlary happen before Juſtices of Oyer and Terminer, and the Juſtices be riſen before the Party yield himſelf, he ſhall do it in the Kings-Bench.
The Juſtices in this Court are the Sovereign Juſtices of Oyer and Terminer, Gaol Delivery, Conſervators of the Peace, &c. in the Realm, and Sovereign Coroners of the Land: And therefore where the Sheriff and Coroners may receive Appeals by Bill, à Fortiori the Juſtices of this Court may do it.
Out of this Court are other Courts derived in reſpect of the multiplicity of cauſes which have increaſed.
Juriſdictio iſtius Curiae eſt Original••ſeu ordinaria, & non delegata: And the Juſtices of this Court were called Anciently Juſticiae, Juſticiarij, Locum tenentes Domini Regis, &c. And the Stile of this Court is Anglia in the Margent, and the Chief Juſtice was called Juſticia Angliae, Juſticia prima, Juſticiarius Angliae capitalis, & Justiciarius noſter, capitalis, ad placita coram nobis terminand•, and in divers Acts of Parliament he is called, Chief Juſtice of England.
121The Kings Bench hath Authority for Great Miſpriſions and Offences, to Adjudge and Inflict corporal Puniſhments, as Pillory, Papers and the like, Coke's 4 Inſt. cap. 7.
THis Court is ſo called, becauſe there are debated the uſual Pleas, between Subject and Subject, althô not in reſpect of Perſons, but in reſpect of the Pleas, being Communia placita: And ſome ſay this Court as well as others, was at firſt held in the King's Houſe whereſoever he reſided: But by Magna Charta it is ordained, This Court ſhould not be Ambulatory, but held at a certain place, and that hath ever ſince been in Westminſter-Hall.
And this Court is the Lock and Key of the Common Law in Common Pleas; for here all Real Actions, whereupon Fines, Recoveries, and Common Aſſurances of the Realms do paſs, and all Real Actions by Original Writs are to be determined, and all Common Pleas mixt, or perſonal, in divers whereof this Court, and the Kings Bench have a concurrent Authority.
122This Court Regularly holds no Plea, but by Original Writ out of the Chancery, and returnable into this Court; But in certain caſes it holds Plea by Bill without ſuch Writ, as for or againſt perſons priviledged in this Court.
Alſo, without Original Writ, this Court may upon ſuggeſtion grant Prohibitions to keep Eccleſiaſtical Courts within their Limits and Juriſdiction.
This Court, (but no inferiour Court) may write to the Biſhop to certifie Baſtardy, or Legal Matrimony; ſo likewiſe upon ancient Demeſne pleaded.
The Lord Chief Justice of the Common Pleas or Common Bench, holds his place Durante bene-placito, by Letters Patent in this form, Rex, &c. Sciatis, quod conſtituimus dilectum & fidelem, E C. Militem Capitalem Juſticiarium de Communi Banco habendum quamdiu nobis placu••it, cum Vadijs, & Feodis ab antiquo debitis, & conſuetis. In cujus rei Teſtimonium has Literas noſtras fieri fecimus Patentes, Teſte, &c.
123And the three other Judges have Letters Patent: Sciatis quod conſtituimus dilect '& Fidelem, P. W. Militem, unum Juſticiariorum nostrorum de Communi Banco, &c.
The Juriſdiction of this Court is general, and extendeth throughout all England: And for the Antiquity of this Court, Vide 6 E. 3. where a Fine was levyed in this Court, 6 R. 1. And none of the Judges of this Court may take Fee of any but the King; and they ought to obſerve (and likewiſe all other Officers) the Rule in Law, Nemo Duobus utatur Officijs. And now we come to
THe Cuſtos Brevium, who is the Chief Officer of the Court.
The Three Prothonotaries, in whoſe Offices all Pleadings are Entred, and all Common Recoveries Recorded, and Exemplified.
The Clerk of the Warrants, who entreth all Warrants of Attorney, and inrolleth all Deeds acknowledged before Juſtices of the Court.
The Phillizers, who have the ſeveral Counties of England divided amongſt them, and make all mean Proceſs upon Original before Appearance.
124The Clerk of Eſſoyns, who entreth all Eſſoyns, and Exceptions in all Actions, and prepareth and marketh all Rolls for the Court.
The Clerk of the Utlaries, who makes all Capias utlagatum upon return of the Exigents brought him: The Kings Attorney is Maſter of this Office.
The Exigenters appointed for ſeveral Counties, who make the Writs of Exigents and Proclamations, upon the return of the Pluries Capias brought them.
The Clerk of the Superſedeas, who makes Writs to ſuperſede the Utlary, upon the Parties appearing to the Exigent.
The Clerk of the Juries, who makes Writs of Habeas Corpora Jur ', & Diſtringas Jur', for Tryal of Iſſues.
The Chirographer, who makes the Indentures of Fines Levied.
The Clerk of the Kings Silver, who Enters upon Record the Money which the King is to have upon Fines, for the Poſt Fines, according to the value of the Land, as the ſame is rated upon the Writs of Covenant.
The Clerk of the Errors, who makes the Superſedeas upon the Writs of Error, and doth Tranſcribe the Records out of the Common Pleas into the Kings Bench.
125The Clerk of the Treaſury, who keeps the Rolls of the Court and makes Copies, and Exemplifications thereof, and alſo all Records of Niſi prius, which are after the ſame Term wherein Iſſue is joyned.
The Proclamator of the Court, The Keeper of the Court, The Office of Inrolment of Fines and Recoveries erected by Statute.
Four Cryers or Tipſtaffs, Subſtitutes to the Proclamator.
The Warden of the Fleet, who by himſelf or his Deputy is to attend the Court; That Priſon being proper for all Commitments out of this Court.
The Pleaders are Serjeants of the Coif; none under that degree are admitted to Plead at the Bar, nor to Sign any ſpecial Pleadings in that Court.
The Attorneys are many, being not limitted.
In this Court all Civil Cauſes, Real or Perſonal are uſually tried according to ſtrict Rule of Law; and Real Actions are Pleadable in no other Court.
The Proceedings in this Court are by Origin•l Summons, Attachias, Capias, Alias Capias, Pluries Capias, Exigi Facias, and Proclamation into the County126 where the Defendant dwelleth: And for their General Rule, ſee the Books at large.
The King allows the Lord Chief Juſtice a Fee, Reward, Robes and Two Tun of Wine: And to the Three other Judges, and to Four Serjeants he alloweth Fees, Rewards and Robes to each.
The Clerk of the Superſede as holds his Place by Patent: The Phillizers are in the Gift of the Lord Chief Juſtice, and hold for Life.
The Four Exigenters are in the Lord Chief Juſtice Gift, and are for Life.
This court hath Juriſdiction for granting Prohibitions upon Suggeſtions, where there is neither Writ of Attachment nor Plea depending, Coke's 4. Inſt. 10.
And this Court hath Juriſdiction for Puniſhment of their Officers and Miniſters.
IS ſo called (as ſome think) from the Chequer wrought Carpet Covering, the great Table in that Court ▪ Or elſe from the French Eſchequier a Cheſs-board, becauſe the Accomptants in that Office were wont to uſe ſuch Boards in their Calculation; And the Authority of this Court, as all the other Courts before mentioned is of Original Juriſdiction, without any Commiſſion, not Inſtituted by any Statute or Written Law, but have their Juriſdiction Originally from the Ancient Cuſtoms of the Kingdom.
And this Court is divided into Two parts, (viz.) Judicial Accompts called Scaccarium Computorum, and the Receipt of the Exchequer. Una Origo Utriuſque Scaccarij, Superioris, ſcilicet & Inferioris, ſed quicquid in Superiori computatur, in Inferiori ſolvitur ': But before we proceed further it will be neceſſary to declare
DOminus Theſaurarius Angliae, hath his Office by delivery of a White Staff at the Kings Will and Pleaſure;128 In former times by delivery of the Golden Keys of the Treaſury: When Treaſure failed the White Staff ſerved to Reſt him upon it, or drive away importunate Suitors. The Office and Duty of the Lord Treaſurer appears by his Oath, Conſiſting of Eight Articles, for the due Execution of his Office, and truly to Council and Adviſe the King; as in the 4th Inſtitutes you may Read more at large. And he hath the keeping of the Kings Treaſure, and Records of the Exchequer; and hath many Officers at his ſole Appointment, hath the nomination of Eſcheators in every County, and is to appoint a Meaſurer for Cloths; he with others joyned with him, grant Leaſes of the Crown Lands, and giveth Warrants to certain perſons to have their Wine Cuſtom Free. The ancient Salary of the Lord Treaſurer was, 383 l. 7 s. 8 d. lately it hath been 8000 per Annum. The Office is ſometimes Executed by Commiſſion; and he is alſo Treaſurer of the Exchequer, by Letters Patent under the great Seal. And next to the Lord High Treaſurer is,
Cancellarius Scaccarij, who keepeth the Seal, Et les Brev. uſual in le Chancery, en le Exchq ', &c. ſont pluis ancient129 que le Regiſter. He is ſometimes under Treaſurer, and Governor of the Court. Under the High Treaſurer is, The Comptroller of the Pipe, and many Officers are at his Appointment, and theſe ſeldom ſit in Court. But there is
The Lord Chief Baron, who is created by Letters Patent Quam diu ſe bene geſſerit, and Anſwers the Bar, take•Recognizances for the Kings Debts, &c. and with him commonly ſit.
Three other Barons, who in his Abſence ſupply his Place according to Seniority. And there is alſo
One Curſitor or Puiſne Baron, who adminiſters the Oaths to the Sheriffs, Under-Sheriffs, Searchers, Surveyors, &c. of the Cuſtom-Houſe.
And in the upper Exchequer are theſe under Officers;
The Kings Remembrancer, in whoſe Office are Two Secondaries, and Six others who are Sworn Clerks; and his Office and Duty is; Firſt, To Write Proceſs againſt all Collectors of Cuſtoms, Subſidies, &c. Secondly, He entre•h all Recognizanees before the Barons, and taketh Bonds for the Kings Debts, for obſerving of Orders, or for Appearances, and makes out Proceſs thereupon. Thirdly, He makes out Proceſs130 upon Penal Statutes, and enters all Informations in this Office. Fourthly, He makes Bills of Compoſitions upon Penal Statutes. Fifthly, He taketh the Stalment of Debts, and entreth them Sixthly, Into this Office ought to be delivered all Conveyances, and all Evidences whereby any Lands, &c. are granted to the King. Seventhly, There being a Court of Equity holden in the Exchequer Chamber by Engliſh Bill; all the Bills and Proceedings thereupon are entred in this Office. See the Statute of 5 R. 2. cap. 14. Stat. 1.
The Lord Treaſurer's Remembrancer, whoſe Office is to make out Proceſs againſt all Sheriffs, Receivers, Bayliffs, &c. And for their Accompts and many other things, as Eſtreat-Rules, all Charters and Letters Patent, whereupon any Rents are reſerved to the King; and formerly here were Two Secondaries, and Ten other Sworn Clerks. If any Clerk make Proceſs for any Debt paid, the Tallies whereof are joyned and allowed, he ſhall loſe his Office, be Impriſoned, &c. He maketh Entry of Record of Sheriffs and Accomptants, paying their proffers at Eaſter and Michaelmas, and makes Entry of keeping their days of Prefixion. The Green Wax is certified131 into his Office, and by him delivered to the Clerk of Eſtreats: All Accompts of Cuſtomers, Comptrollers, &c. are here entred to avoid all delay and concealment.
The Clerk of the Pipe, the Original Inſtitution of whoſe Office was from a Conduit, or Conveyance of Water into a Ciſtern; For all Accompts and Debts to the King are drawn from and delivered out of the Offices of the Kings Remembrancer, and Lord Treaſurers Remembrancer, &c. and charged in the Pipe: So as whatſoever is in charge in this Roll or Pipe, is ſaid to be duly in charge. In the Patent of this Office he is called Ingroſſator Magni Rot 'in Scaccario: Here are under him Eight Sworn Clerks. Here Accomptants have their Quietus eſt, and Leaſes are made of Extended Lands.
Comptroller of the Pipe, He writeth out Summons twice every year to the high Seriff, to levy the Farms and Debts of the Pipe, and keepeth a Comptrolment or Roll of the Pipe Office Accompts.
Clerk of the Pleas, in whoſe Office all the Officers of the Exchequer, and Priviledged Perſons, as Debtors to the King, &c. are to have their Priviledge, to Plead, and be Impleaded as to all132 matters at the Common Law: And the Proceedings are accordingly by Declarations, Pleas and Trials as at Common Law, becauſe they ſhould not be drawn out of their Court, where their attendance is required. In this Office are Four Sworn Attorneys.
Foreign Oppoſer, to whom all Sheriffs repair to be oppoſed of their Green-wax, and from thence is drawn down a charge upon the Sheriff to the Clerk of the Pipe.
Clerk of the Eſtreats or Extracts, is every Term to receive from the Office of the Treaſurers Remembrancer, all Debts or Sums to be levied for the King's uſe, and to make Schedules for ſuch Sums as are to be charged.
Auditors of the Impreſt are Two, who Audit the great Accompts of the King's Cuſtoms, Wardrobe, Mint, Firſt-fruits and Tenths, Naval and Military Expences, Moneys Impreſſed, &c.
Auditors of the Revenue are Seven; Theſe Audit all the Accompts of the Kings other Revenue that ariſeth by Aids.
Auditors of the Receipts is a kind of Filazer, for he Files all Tellers Bills, and Enters them. Secondly, He is a Remembrancer; for he giveth the Lord Treaſurer a Certificate of the Money received the Week before.
133Thirdly, He is an Auditor, for he maketh Debentures to every Teller before they pay any Money, and taketh and audietth their Accompts; and keepeth the Black Book of Receipts, And the Lord Treaſurers Key of the Treaſury, and ſeeth every Tellers Money Locked up ſafe in the new Treaſury.
Remembrancer of the firſt Fruits Executed by Two Deputies, they take all compoſitions for Firſt-Fruits and Tenths, and make out Proceſs againſt all which pay not the ſame.
Clericus Nihilorum, maketh a Roll of all ſuch Sums as the Sheriffs upon Proceſs of the Green-wax return Nihil, and delivers that Roll into the Office of the Lord Treaſurers Remembrancer to have Execution done of it for the King.
Mareſchallus, To this Officer the Court committeth the keeping of the Kings Debtors during the Sitting of the Term, to the end they may provide to pay the Kings Debts, or be further Impriſoned; ſuch Offices as are found Virtute Officij, and brought into the Exchequer, are delivered to him to be delivered over to the Lord Treaſurer's Remembrancer. He alſo appointeth Auditors to Sheriffs, Eſcheators, Cuſtomers and Collectors for taking their Accompts.
134Clericus Summonitionum, Clerk of the Summons.
Deputati Camerarij, which are Two, called Under-chamberlains of the Exchequer: They cleave the Tallies written by the Clerk of the Tallies, and read the ſame, that the Clerk of the Pell, and the Comptrollers thereof may ſee their Entries be true; They alſo ſearch for Records in their Treaſury: And there are other Officers as Clerk of the Parcels, Uſher of the Exchequer, whoſe Office is Executed by a Deputy, and four Under-uſhers.
THe Lord High Treaſurer of England, of whoſe Office and Dignity we have ſpoken before in the uppe•Exchequer: And concerning the courſe of the Receipt in this Exchequer, you may read more in Rot 'Claus' 39 E. 3. M. 26.
The other Officers there are one Secretary. And next is
The Chancellor, who hath a princip••power, not only in the Exchequer Court, but there alſo, in the managing and diſpoſing of the Kings Revenue.
135Two Chamberlains, in whoſe Cuſtody are many ancient Records, Leagues and Treaties with Foreign Princes; The Standards of Moneys, Weights and Meaſures; The Famous Books called Doomeſday, and the Black Book of the Exchequer.
Four Tellers, Their Office is to receive all Moneys due to the King, and thereupon to throw down a Bill through a Pipe into the Chamberlains or Tally Court.
Clerk of the Pells, is to enter every Tellers Bill in a Parchment Skin, in Latin Pellis, whence this Office hath its name.
The Two Deputy Chamberlains, Sit in the Tally Court, cleave the Tallies and examin each piece a part, as is ſaid before in the Upper Exchequer.
Two Uſhers, who take care to ſecure the Court by Day and Night, and all the Avenues leading to the ſame, and are to furniſh all Books, Paper, &c.
One Tally Cutter, who provides fitting Hazel, cuts them ſquare and of full lengths, and hath dividend Fees with the other Officers, of the Party who ſueth it out.
The Four Meſſengers of the Receipt, are Purſuivants Attendants upon the Lord Treaſurer for carrying his Letter and Precepts to all Cuſtomers, Comptrolers136 and Searchers, and all other His Majeſties Meſſages, where the Lord Treaſurer ſhall command them.
In caſe of any Penſion given by the King, there is only 5 l. per Cent. paid to all the Officers, for all publick payments, not 5. s. for the Hundred pounds.
For all Moneys paid in by the King's Tenants or Receiver, it coſts them but 6 d. or at moſt but 3 d. for every payment under 1000 l.
The Collectors and Receivers coſt the King not above Two in the pound, and at his Exchequer it coſts nothing.
For the Courſe of the Exchequer, and Duty of the ſeveral Officers, you may Read in the Authors, who have treated thereof more at large.
There is a General Statute concerning all the Courts of the King, made 2 Hen. 6. cap. 10. That all Officers made by the King's Letters Patents within his Courts, which have Authority (ab antiquo) to appoint Clerks and Miniſters within the ſaid Courts, ſhall be Sworn to appoint for whom they will anſwer, and ſuch as are ſufficient, and will be Faithful and Diligent in their places.
137In the ſame manner we have Ordained in the Right of the Barons of the Exchequer, that we have expreſly charged them in our preſence, that they ſhall do Right and Reaſon to all our Subjects, and that they ſhall deliver the People reaſonably and without delay, &c. And more of the Officers of this Court, and their Duty, you may read in the Statutes at large.
Reſolved in the Caſe of Auditor Provy, that if A. be indebted to B. and B. is indebted to the King, that the King by his Prerogative may Levy 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 reprobatur in Jure.
The Barons of the Exchequer are the Sovereign Auditors of England; for if a Man Aſſign Auditors to a Bailiff, or Receiver to Accompt, and the Auditors will not allow juſt and reaſonable allowances, but will Commit the Bailiff or Receiver to Priſon, ſuch Priſoner may have an Original Writ of Ex parte talis returnable before the Treaſurer and Barons of the Exchequer for his relief.
138If the Barons do not allow an Accomptant before them ſuch juſt Demands as he maketh, he may have a Writ De Allocatione facienda, directed to the Treaſurer and Barons, Commanding them to allow the ſame.
Gifts by word of Mouth from the King, not allowable but void.
Neither is a Warrant under the Signet, ſufficient to Iſſue any Treaſure of the King out of the Receipt, but it muſt be under the Great, or Privy Seal.
Whereas it is ſaid, That the King may Diſtrain in all the other Lands of his Tenant of whomſoever they are holden, it is thus to be underſtood; That the other Lands muſt be in the actual Poſſeſſion of the Kings Tenant, for he cannot Diſtrain in thoſe Lands in the Poſſeſſion of his Tenant for Life, Tenant for Years, or at Will, Coke's 4 Inſt. cap. 11, 12, 13.
The Oath of the Barons of the Exchequer, expreſſing there Duties conſiſteth upon Ten Articles: 1ſtThat well and truly he ſhall ſerve in the Office of Baron of the King's Exchequer: 2ly, That truly he ſhall charge and diſcharge all manner of People as well Poor as Rich: 3ly, That for no highneſs, nor for Riches nor for hatred, nor Eſtate of no Perſon or Perſons whatſoever,139 nor for any Deed, Gift nor Promiſe of any Perſon the which is made to him, nor by Craft, nor by Engin he ſhall let the King's Right: 4ly, Nor none other Perſons Right he ſhall diſturb, let or reſpite contrary to the Laws of the Land: 5ly, Nor the Kings Debts he ſhall put in reſpite where that they may goodly be levied: 6ly, That the Kings need he ſhall ſpeed before all others: 7ly, That neither for Gift, Wages, nor good Deed, he ſhall lain, diſturb nor let the profit or reaſonable advantage of the King, in the advantage of any other person, nor of himſelf: 8ly, That nothing he ſhall take of any perſon for to do wrong, or right to delay, or to deliver, or to delay the people that have to do before him, but as haſtily as he may them goodly to deliver without hurt of the King, and having no regard to any profit that might thereof to him be therein, he ſhall make to be delivered: 9ly, Where he may know any wrong, or prejudice to be done to the King, he ſhall put and do all his power and diligence that to redreſs, and if he may not do it, that he tell it to the King, or to them of the Councel, which may make relation to the King,140 if he may not come to him: 10ly, The King's Counſel he ſhall keep, and lain in all things.And like to the Chief Baron, the reſt of the Baron are conſtituted by Letters Patent; and the Patents of the Attorney General, and Solicitor are alſo Quamdiu ſe bene geſſerit, Coke's 4. Inſt. cap. 11, 12.
The Lord Chief Baron is Sworn by the Lord Chancellor, or Lord Keeper for the time being; and in matters of Law, Information, and Plea he anſwereth the Bar and all Suitors. He ever giveth Judgment in the Term-time only, and gives his directions to the Remembrancer in this manner: If the King's Attorney ſay nothing for the King, between this and ſuch a day, for ſuch a matter, enter Judgment for A.B. Or, if the Party fo•nothing for ſuch a matter, by ſuch a day enter Judgment for the King. Practick part of the Law, Court of Exchequer.
THis Court Sits by Commiſſion under the Great Seal, by force of the Statute of 6 Hen. 4. Directed and ſent with the Tenor of the Accompt to diſcreet perſons in the County, where141 the Officers be to Enquire, and certifie the profits by them received; and if they be attainted of Fraud, they forfeit treble value, and their Bodies to Priſon, until they make Fine, and Ranſom at the diſcretion of the Judges.
In the Exchequer Wall is this old Verſe Ingraven.
THe Judges of this Court are the Lord Treaſurer, Chancellor and Barons of the Exchequer.
And generally their Juriſdiction is as large for matter of Equity, as the Barons in the Court of Exchequer have for benefit of the King at the Common Law. For all the
Proceedings both in this Court of Equity, and of that at the Common Law ought to be touching the King; or otherwiſe, there lieth a Prohibition, which appears by the Regiſter for all are Communia Placita, which are not Placita Coronae.
More of the Juriſdiction and Authority of this Court, you may ſee by the Statute of 33 Hen. 8. and Coke's Inſtit. cap. 13.
THis is the Office of the Common Law, and the Proceedings in moſt things agreeable to the Kings-Bench, and Common Pleas.
Their Leading Proceſs is Quo minus, or Subpoena; the Quo minus is like the Capias, or Latitat to take the Body of the Defendant, and was anciently granted to the Kings Tenants, or Debtors only.
But now the Practice of this Office is grown General in all caſes almoſt by the Subpoena, which being eaſier brings much into this Office, eſpecially in Wales, where the King's Writ runs not, only Capias Utlagatum.
There are Four Attorneys, and in their Declarations they always ſuppoſe the Plaintiff to be Debtor to the King.
In this Office, all Officers of the Exchequer are to Sue and be Sued, and all manner of Accomptants, and all Suits removed out of any Court of Record by the King's Writ, or out of any Court at Weſtminſter by the Red Book.
143The Execution after Judgment, or Verdict, is by Fieri Facias, or Capias ad ſatisfaciend ', as in other Courts of Common Law.
The Defendant in ſome caſes muſt put in Sureties upon Appearances to render, if he be condemned, and this Bail or Recognizance muſt be taken before a Baron in Court, and not otherwiſe.
Firſt-Fruits and Tenths were granted to the Crown by the Statute of 26 H. 8. cap. 3. But the Clergy being diſcharged thereof Anno 1 & 2 Philip and Mary, they were again reunited to the Crown 1 Eliz. cap. 4. but no Court revived. And being under the Governance of the Exchequer, a New Office was created, and an Officer, viz. Remembrancer of the Firſt-Fruits and Tenths. And more concerning them, and the manner of Taxation of them, you may read Coke's 4th Inſt. cap. 14.
The Court of Augmentations. Within the Survey and Governance of this Court were all Lands belonging to Monaſteries, and Purchaſed Lands; but Queen Mary by her Letters Patent in the Firſt year of her Reign diſſolved it, and united it to the Exchequer; as by the Articles thereof may appear.
144The Surveyor General's Court is Diſſolved, the Office only remaining.
So that in the Exchequer are Seven Courts: 1. The Court of Pleas, 2. The Court of Accompts, 3. The Court of Receipt, 4. The Court of the Exchequer Chamber, being the Aſſembly of all the Judges in England for Matters in Law; 5. The Court of Exchequer-Chamber for Errors in the Exchequer; 6. The Court in the Exchequer-Chamber for Errors in the King's-Bench, And 7. The Court of Equity in the Exchequer, Chamber: of all which ſee the Books and Statutes mentioned in Coke's 4 Inſt. c. 13.
THeſe Juſtices take their Names from the Writ of Aſſize, called Aſſiza Novae Diſſeiſinae, or Petit Brief de Novel Diſſeizin. And the Mirror ſaith, That for Expedition of Juſtice it was ordained by Ranulph de Glanvil; but by 26 Aſſ. 24. it appears to be more Ancient. At the Common Law Aſſizes were not to be taken, but either in Bank, or before•uſtices in Eyre: But by Magna Charta it is Enacted, Quod Recognitiones de Nova, Diſſeiſina, & de Morte Anteceſſoris, non capiantur niſi in145 ſuis propriis Comitatibus, &c. And upon that Statute of Magna Charta, the Letters Patent to the Juſtices are framed in theſe Words, (viz.)
Rex, &c. Dilectis & Fidelibus ſuis R. M. uni Juſticiariorum ſuorum de Banco, & I.L. uni Juſticiariorum ſuorum ad Placita coram nobis tenenda Aſſign ', Salutem: Sciatis, Quod Constituimus vos Justiciarios noſtros una cum hiis quos vobis aſſociaverimus ad Omnes Aſſizas, Jurat', Certificat ', coram quibuſcunque Juſtic', tam per diverſa Brevia Domini Johannis nuper Regis Angl 'Patris noſtri, quam per diverſa Brev' noſtra in Com' noſtris South ', Wiltes', Dorſet ', Devon', & Cornub ', ac in Civitate Exon', arranian 'capiend'; Et ideo vobis Mandamus quod ad certos dies & loca quos vos ad hoc provideritis, Aſſiſ. Jurat ', & Certificat', illas capiatis, Facturi inde quod ad Juſtitiam pertinet ſecundum Legem & conſuetudinem Regni noſtri Angliae, Salvis nobis amerciamentis inde nobis provenien '; Mandavimus enim Vicecomisibus noſtris, Com' & Civit' praed ', quod ad certos dies, & loca quos eis Scire faciatis, Aſſiſ. Jurat', & Certificat 'illas una cum Brevibus Originalibus & omnibus aliis ea tangen', coram vobis venire faciat '. In cujus rei Teſtimonium, &c.
146By this Writ the Seiſin and Poſſeſſion was recovered, and became more frequent, Quia non eſt aliud Breve in Cancellaria, per quod Querentes habent festinum remedium, quam per Aſſiſam. And after the Statute of Weſtminſter was, and thereby provided, Quod aſsignentur duo Juſticiarij jurati, coram quibus, & non aliis, Capiantur Aſſiſae, &c. ad plus ter per Annum.
And Rot. Parl. 21 Ed. 1. Dominus Rex, &c. praecepit, quod de caetero aſſignentur Octo Juſticiarij Circumſpecti & diſcreti ad Aſſiſas, Jurat ', & Certificat' capiend ', per Totum Regnum Angliae, and divideth the Realm into Eight parts.
Per Stat. de Finibus 27 Ed. 1. cap. 1. Justiciarij ad Aſſiſas capiendas aſſignati, deliberent Gaolas in Com' Illas tam infra Libertates, quam extra, de Priſonariis quibus cumque. And Appeals of Murder, Robbery, Rape, &c. may be commenced before Juſtices of Aſſize: And divers other Powers and Authorities are given to J•ſtices of Aſſize, and Gaol-delivery; for which ſee the Statutes, and Coke's 4 Inſt. cap. 27.
Juſtices of Aſſize ſhall enquire for Non Returning, and Falſe Return of Sheriffs.
147May hear and determine of Conſpirators, falſe Informers, and wicked Procurers of Dozens, Inqueſts and Juries, at the complaint of any without Writ, and without Delay, and of Confederacies and Champerties, and Maintainers, Bearers, and Alliances by Bond, &c. Of Defaults of Sheriffs, Eſcheators, Bayliffs, and other Officers.
Juſtices of Aſſize may enquire of Defaults, &c. of Puniſhment of Victualers, &c. which ſell at unreaſonable Prizes.
They have power to hear and determine riding and going Armed, &c. and to puniſh Juſtices of the Peace, Sheriffs, Bayliffs, and others, for not doing their Office in that caſe.
They may hear and determine Treaſon in Counterfeiting of Money, &c. They ſhall do Execution of the Statute of 13 H. 3. of Riots done in their preſence, upon pain of an Hundred pounds, and by the Statute of 2 H. 5. Commiſſions ſhall be Awarded to Enquire of the Default of the Juſtices of Aſſize, and of Juſtices of Peace in that behalf.
They ſhall enquire of, hear, and determine all Offices contrary to the Statute of 23 H. 6. concerning Sheriffs, Under-ſheriffs, and their Clerks, Coroners, Stewards of Franchiſes, Bayliffs,148 and Keepers of Priſons, for Extortion, and for letting to Bail ſuch as were not Bailable, or for denying Bail to them that ought to be Bailed.
Juſtices of Aſſize ſhall take Bail of him that is acquitted of Murder; within the Year to anſwer to the Appeal of the party; 5 Eliz. cap. 5. of Informers, 5 Eliz. cap. 4. of Labourers.
Juſtices of Aſſize, of Gaol-delivery, and of the Peace, ſhall enquire of the default of Coroners.
Juſtices of Aſſize, &c. ſhall enquire of falſe making of Leather, of Amending of High-ways, of Hunters in Parks, of Unlawful taking of Fiſhes, of Forgery of Falſe Deeds, againſt deceipt in Linnen Cloth, againſt Perjury, of Uſury, and many other things.
Juſtices of Aſſize twice in every year ought to proclaim the Statute of 32 H. 8. and other Statutes againſt unlawful Maintenance, Champerty, Embracery, and unlawful Retainers; they ought to proclaim the Statute of Unlawful Games in their Circuit.
See the Cuſtumary of Normandy, c. 19. Coke's 4. Inst. cap. 27.
The Juſtices of Niſi prius were firſt Inſtituted by Stat. W. 2. cap. 30. Of Iſſues joyned in the Kings-Bench, and their Authority is annexed to the Juſtices of149 Aſſize, and is by force of a Judicial Writ, and therefore we have joyned them under one Title. And this appeareth by the Writ:
By the Statute of 7 R. 2. Niſi prius ſhall be granted in the Exchequer, as well as elſewhere.
Of Iſſues joyned in the Chancery, Kings-Bench, Common-Bench, and Exchequer, the Chief Juſtices, or Chief Baron, or in their abſence, two other Juſtices or Barons of the ſaid ſeveral Courts, as Juſtices of Niſi prius for the County of Middleſex within the Term, or four days after each Term, ſhall ſeverally Try, &c. And for their ſeveral other Powers and Authorities, vide le Stat. and Coke's 4 Inst. cap. 27.
And this Writ of Niſi prius is (ſo called, becauſe the word Prius is before Venerint in the Diſtring as, &c. which150 was not ſo in the Venire facias, upon The Statute of Weſtm. 2. cap. 30.) although the words of the Writ are Si prius, &c. And albeit Juſtices of Aſſize have their Dignity and Authority much increaſed, yet they retain their Original Name, although Aſſizes are now rarely taken before them: For that the Common Action of Ejectment hath Ejected moſt Real Actions, and ſo the Aſſize is almoſt out of uſe.
Juſtices of Niſi prius have power to give Judgment in Aſſize of Darrein Preſentment, and Quare Impedit.
And that Commiſſions, and Writs of Niſi prius ſhall be awarded, &c. It is to be obſerved, That there is but a Tranſcript of the Record ſent to the Juſtices of Niſi prius.
By the Statute of 27 E. 1. de Finibus, cap. 4. it is provided, Quod Inquiſitiones & Recognitiones capiantur tempore Vacationis, coram aliquo Juſticiario de utroque Banco, coram quibus placitum deductum fuerit.
See the Statutes of York, 2. E. 3. cap. 16. 4. E. 3. cap. 2. and the Statute of 14. Ed. 3 cap. 16. which Statute doth provide, That Niſi prius may be taken in every Plea Real or Perſonal before Two, ſo that one be Juſtice of one of the Benches,151 or the Chief Baron or Serjeant ſworn, without any regard where the Plea depended, and this ſtandeth yet at this day.
Concordatum fuit per totum Cocilium Regis, quod nullus Vicecomes aut Coranat 'fiat Juſticiarius ad Aſſiſas capiend' Gaolas Deliberand ', Tranſgreſs' audiend '& terminand', ſeu ad aliquod aliud officium Juſtic 'faciend', eo quod debent eſſe intendentes aliis Juſticiariis. Which Statute is Declaratory of the Common Law.
14 H. 6. cap. 1. Juſtices of Niſi prius have power in all caſes of Felony, and Treaſon, to give Judgment, as well where the Priſoner is acquitted, as where he is Attainted, and to award Execution.
Where the King is a Party, a Niſi prius may be granted, if the King's Attorney aſſent unto it.
In Appeal of Murder, Robbery, Rape, brought in the King's Bench; if the parties be at Iſſue, a Niſi prius may be granted before Juſtices of Aſſize.
And if Appeal be brought before Juſtices of Aſſize, they have alſo power to enquire and judge.
Theſe Juſtices of Niſi prius were Inſtituted for two cauſes, viz. 1. Propter intolerabilem jacturam Juratorum, & in exonerationem Juratorum. 2. Ad celerem Juſticiam in ea parte exhibendam.
152A Prohibition is grantable to Juſtices of Aſſize, Quod non caperent in patria inquiſitiones quae magna indigent examinatione.
By the Original Inſtitution of Juſtices of Aſſize, and Niſi prius, the Tryal ſhould be before Two at the leaſt; for plus vident oculi, quam oculus, eſpecially in Pleas of the Crown, concerning the Life of Man.
The Juſtices of Niſi prius may grant a Tales de Circumſtantibus, either when but one or more appear of the principal Pannel, or where Eleven do appear; and all the Jury may be of the Tales de Circumſtantibus, as it was upon a Tales at the Common Law.
A Niſi prius may be granted in an Attaint.
In Treſpas between the Duke of Exeter, and the Lord Cromwell; The Counſel of the Duke moved for a Niſi prius, and for the Duke was a Praepotent Prince in that Country, and the Venire facias being Return'd, there was a great Rout in the Hall, ſo as if a Niſi prius ſhould be granted great Miſchief might enſue, therefore no Niſi prius was granted, 32 H. 6.9. Coke's 4. Inſt. cap. 27.
THe Authority of theſe Juſtices is by Commiſſion; and of theſe are two ſorts,
The General Commiſſion, which is ſo called, becauſe it is General in reſpect of the Perſons, the Offences, and Places, where the Offences are committed, the ſubſtance of which Commiſſion is thus:
REx, &c. Fidelibus ſuis R.M. & aliis, Salutem, Sciatis quod Aſſignavimus vos, & Tres veſtrum, quorum aliquem veſtrum vos praefat 'R.M. & L.G. unum eſſe volumus, Juſticiarios noſtros ad inquirendum per Sacramentum proborum & legalium hominum de Com' noſtris South', Wiltes ', Dorſet', Somerſet ', Devon', & Cornub ', & eorum quobilet ac aliis viis, Modis, & Mediis quibus melius ſciveritis, aut poteritis tam infra Libertates, quam extra, per quos rei veritas melius ſcire poterit, de quibuſcunque Proditionibus, Miſpriſionibus Proditionum, Inſurrectionibus, Rebellionibus, Murdris, Feloniis, Homicid•is, Interfectionibus, Burglartis, Rop••bus Mulierum, Congregationibus, & Conventiculis illicitis, Verborum prolationibus, Coadiju•ationibus,154 Mispriſionibus, Confederationibus, Falſis allegantiis, Tranſgreſſionibus, Riotis, Routis, Retentionibus, Eſcapiis, Contemptibus, Falſitatibus, Negligentiis & Concelamentis, Manutenentiis, Cambipartiis, Deceptionibus, & aliis Malefactis, Offenſis, & Injuriis quibuſcunque; Necnon acceſſar 'eorundem infra Com' praed', & eorum quemlibet, &c. Et eaſdem proditiones, & alia praemiſſa, (hac Vice) audiend ', & terminand', ſecundum Legem & Conſuetudinem regni noſtri Angliae, &c. As you may read at large in Coke's 4th Inſt. cap. 28.
The particular Commiſſions of Oyer and Terminer, are ſo called in reſpect of particular Perſons, Offences, or Places for which they are granted, whereof you may ſee Freſh Preſidents in the Regiſter; 1. Againſt the Biſhop of Wincheſter, and his Miniſters; 2. De Nave fracta, if the Goods ought to be taken for Wreck; 3. Of divers Oppreſſions, Extortions, &c. 4. For the Prior of Daventry; 5. For the King in time of Vacation; of all which you may read there more at large.
And concerning Commiſſions of Oyer and Terminer, Ten Concluſions are to be obſerved; 1. That they are not granted but before the Juſtices of the one Bench, or of the other, or before155 the Juſtices Errant, and that for great and horrible Treſpaſſes of the King's ſpecial Grace, according to the Statute of W. 2.13 Ed. 1.
Commiſſions are like to the King's Writs, ſuch only are to be allowed which have Warrant of Law, and continual Allowance in Courts of Juſtice.
They cannot proceed upon any Indictment, but ſuch only as are taken before themſelves.
They may upon Indictment found, proceed the ſame day againſt the party Indicted; as in Hill. 2 H. 4. Rot. 4. Thomas Merx, Biſhop of Carliſle, was before Commiſſioners of Oyer and Terminer Indicted, Tryed, and Adjudged for High Treaſon all in one day.
And for other Concluſions and their proceedings therein, you may read more at large in Coke's Fourth Inst. cap. 28.
If any Offence be prohibited by any Statute, and name not in what Court it ſhall be puniſhed; or if the Statute appoint that it ſhall be puniſhed in any Court of Record, in both theſe caſes it may be heard and determined before Juſtices of Oyer and Terminer.
The King may make a Commiſſion of Aſſociation, directed to others to joyn with the Juſtices of Oyer and Terminer,156 and a Writ of Admittance to the Juſtices of Oyer and Terminer, to admit the others into their Society, which Writ is cloſe. There is alſo a Writ of Si non omnes directed to the Juſtices of Oyer and Terminer, and to their Aſſociates, the Forms of all which you may read in the Regiſter, and in F. N. B. And in all theſe Commiſſions, and Writs, the Juſtices are directed with this Rule: Facturi quod ad justitiam pertinet ſecundum Legem & conſuetudinem Angliae.
If the Juſtices ſit by force of the Commiſſion, and do not adjourn the Commiſſion, it is determined.
Juſtices of Oyer and Terminer ſhall ſend their Records and Proceſs determined, and put in Execution, to the Exchequer at Michaelmas every year, to be delivered there to the Treaſurer, and Chamberlain, &c. to keep them in the Treaſury.
None of theſe Commiſſioners, or of Aſſize, or of Gaol-delivery, or of the Peace, or other of the Kings Commiſſioners, are countermanded by any New Commiſſion, unleſs it be ſhewed unto them for ſo many as it is ſhewed unto; or that it be proclaimed in the County, or that the New Commiſſioners do ſit and keep their Seſſions by force of the new Commiſſion,157 whereby the former Commiſſion is countermanded. Concerning which ſee the Statute of 1 Ed. 6. cap. 17. Co. 4. Inſt. 165.
Anno 1 Mariae, Stat. 2. cap. 2. Upon concluſion of her Marriage with Philip the Son of the Emperour and Prince of Spain; It is provided, That the ſaid Prince ſhall not promote, admit, or receive to any Office, Adminiſtration, or Benefice in the Realm of England, and Dominions thereunto belonging, any Stranger or Perſons not born under the Dominion and Subjection of the ſaid moſt Noble Queen, Co. 3. Inſt. 225.
Judges, and other Officers in Courts, may be increaſed, or diminiſhed as need ſhall require; and at Entrance ſhall take an Oath to ſerve the King and his People duly, Wingate's Abridgment of the Statute of 14 Ed. 3. Title Judgments, fol. 303.
Aſſociation is a Patent ſent by the King either of his own motion, or at the Suit of the party Plaintiff to the Juſtices of Aſſize, to have other Perſons aſſociated to them: And upon that Patent the King will ſend a Writ to the Juſtices to admit them; and if there be Three Juſtices, and one dye, the King may grant a Patent of Aſſociation,158 to Aſſociate another to the Two; and a Writ which ſhall be cloſe to the other two to admit him; Terms del Ley.
Si non omnes, Is if thoſe Aſſociated or ſome of them cannot come, then the King may make a Patent for other Juſtices, or for One Juſtice to be Aſſociated in his Room, to take thoſe Aſſizes and Juries; And the Forms of theſe ſeveral Writs of Aſſociation you may ſee in F. N. B. 412 to 418.
And if the King make Three Juſtices to take Aſſizes, and make them a Patent of ſi non omnes, if one of them dye, the other two may proceed, F. N. B. 416.
And the King may make Aſſociation in Juries as well as in Aſſizes, as alſo in Attaints, and alſo one Aſſociation after another; and any Aſſociation may be made to a Sheriff in a Rediſſeiſin; and although the Aſſize be diſcontinued, yet if the other Re-attachment is Sued, the Aſſociation ſhall ſtand good and the ſi non omnes; and a Re-attachment may be ſued to revive thoſe Aſſizes, altho' there be ſeveral Adjournments; and the Aſſociations and ſi non omnes, ſhall ſerve for all the Aſſizes, F. N. B. 417, 418.
159Bailiff in Magna Charta extendeth to any Judge or Miniſter of the King; and Bailie le Roy is underſtood Justice le Roy, Coke's 1 Inſt. 168.
Juſtices of Aſſize have alſo Commiſſions of Oyer and Terminer, of Gaol-delivery, and of the Peace, of Aſſociation, ſi non omnes throughout their Circuits, ſo as they are armed with ſimple, yet ordinary Juriſdiction, they ſometimes being bounded with expreſs Limitations, Facturi quod ad Justitiam pertinet ſecundum Legem & Conſuetudinem Angliae; And in former time according to their Original Inſtitution, and their Commiſſion both the Juſtices joyned, both in Common Pleas, and Pleas of the Crown, Coke's 1. Inſt. 263. a.
In ancient time, Prelates as well as other Noble-men were Chancellors, Treaſurers and Judges, being Expert and well Learned in the Laws of the Realm, Coke's 1 Inſt. 304, 8. Coke's 2 Inst. 98, 265.
Capitalis Justiciarius in Glanvil is taken for Cuſtos Regni, who may name Juſtices; and Original Writs ſhall bear Teſte under his name, which no Officer may do whilſt the King is within the Realm.
160In the time of Ed. 1. Juſtices would not proceed in Caſe of the Death of Man without the King's Writ.
By Magna Charta cap. 26. Nihil de caetero detur pro brevi inquiſitionis ab eo, qui inquiſitionem petit de vita, vel de membris, ſed gratis concedatur, & non negetur. Breve inquiſitionis, being the Writ Odio and Atia anciently called Breve de bono & malo, by this Statute of Life and Member; which the Common Law gave to a Man that was Impriſoned, though it were for the moſt hainous Crime, for the Death of a Man, for the which without the King's Writ he could not be Bailed; yet the Law favouring the Liberty, and Freedom of a Man from Impriſonment, and that he ſhould not be detained in Priſon, until the Juſtices in Eyre ſhould come, at what time he was to be Tried, he might Sue out this Writ of Inquiſition directed to the Sheriff; Quod aſſumptis tecum cuſtodibus placitorum Coronae in pleno comitatu per Sacramentum proborum, & legalium hominum de, &c. inquiras (inde appellatur Breve inquiſitionis) utrum A. captus, & detentus in Priſona, &c. pro morte W. unde rettatus (i. e. accuſatus exiſtit) ſit odio, & atia, &c. niſi indictatus vel appellatus fucrit, coram Juſtitiariis noſtris ultimo itincrantibus in partibus161 illis, & pro hoc captus, & Impriſonatus. For by the Common Law, in omnibus autem placitis de felonia, ſolet accuſatus, per plegios dimitti, praeterquam de placito de homicidio, ubi ad terrorem aliter ſtatutum eſt.
But this Writ was taken away by a late Statute, viz. in 28 E. 3. becauſe as ſome pretended it became unneceſſary, for that Juſtices of Aſſize, Juſtices of Oyer and Terminer, and Juſtices of Gaol-delivery came at the leaſt into every County twice every year; but within Twelve years after this Statute it was Enacted, That all Statutes made againſt Magna Charta ſhould be void, whereby the Writs of Odio and Atia and De ponendo in Ballium are revived, and ſo in like caſes upon all the Branches of Magna Charta: And therefore the Juſtices of Aſſize, Juſtices of Oyer and Terminer, and of Gaol-delivery, have not ſuffered the priſoner to be long detained, but at their next coming have given the priſoner full and ſpeedy Juſtice by due Tryal, without detaining him long in priſon, Coke's 2 Inſt. 42, 43.
A perſon examined may require a Copy of his Examination, take time to anſwer, and put his anſwer in writing, and keep a Copy of it, Coke's 2 Inſt. 51.
162All cauſes ought to be heard and determined before the Judges openly in the Kings Courts; the King having diſtributed his Judicial power to ſeveral Courts of Juſtice, Coke's 2 Inſtitutes 103.
If a priſoner be mute by act of God, The Judges who are to be of Council with the priſoner ex officio, ought to enquire if he be the ſame perſon, and of all other pleas which he might have pleaded; But if it be by his own Act, he is to be forthwith put to his pennance, Coke's 2 Inſt. 178.
If the Priſoner Demur, and it be Over-ruled he ſhall be hanged, but not have pain, fort & dure, ibidem.
Juſtices may puniſh any act done in deceit of the Court, 2 Inſt. 215.
Judicis officium eſt Opus diei in die ipſo perficere, according to the Statute of W. 1. cap. 47. and not defer it, or prefer others upon any requeſt or importunity, Coke's 2 Inſt. 256.
Sapientis Judicis eſt cogitare tantum ſibi eſſe permiſſum quantum commiſſum & creditum, Coke's 4 Inſt. 163.
By Stat. 4 Jac. 1. cap. 1. It is provided, that whereas in regard of ſome difference, and inequality of the Laws, Tryals and Proceedings in caſe of Life, between the Juſtice of the Realm of163 England, and that of the Realm of Scotland; It appeareth to be moſt convenient for the contentment and ſatiſfaction of all his Majeſties Subjects to proceed (with all poſſible ſeverity) againſt ſuch Offenders in their own Country according to the Laws of the ſame, whereunto they are Born and Inheritable, and by, and before the Natural Born Subjects of the ſame Realm, if they be there apprehended. And by the next Clauſe is provided, that Felonies committed by Engliſh Men in Scotland, ſhall be inquired of, heard and determined before Juſtices of Aſſize, or Commiſſioners of Oyer and Terminer and Gaol-delivery, being Natural born Subjects within the Realm of England and no other. And the like in another Clauſe, with an addition of Juſtices of the Peace to be Natural born Subjects within England, Coke's 3 Inſt. 226.
Juſtices of the Kings-Bench, Oyer and Terminer, Gaol-delivery, and of the Peace may enquire of, hear, and determine all Murders, and Felonies within the Verge; becauſe their Juriſdiction and Authority are generally through the whole County, Coke's 4 Rep. 46, 47. Caſe of Appeals.
164The Juſtices of Aſſiz•have one Commiſſion of Oyer and Terminer directed to them, and divers other Inhabitants of the Shires, whereunto their Circuits extend, whereof each of the Juſtices of Aſſize are of the Quorum, for offences hapning in their Circuits, which without this Commiſſion they cannot do, Terms del Ley, Cok's 4 Inſt. En le Table.
The Statute of 2 Ed. 3. requireth that no Commiſſion of Oyer and Terminer be granted, but before Juſtices of one Bench or the other; or Juſtices Itinerant, and that for horrible Treſpaſſes.
Where the Commiſſion of Oyer and Terminer lies in caſe of Extortions, by Under-ſheriffs, Eſcheators, Clerks of Markets, Hunters in Parks, taking of Goods not Wreck'd, in vacancy of Biſhopricks for Hunting in Parks, for Robbing Piſcaries, and in many other caſes the Forms of Writs and Aſſociations, and ſi non omnes to them, Vide F. N. B. 243 to 251.
If the Treſpaſs be not Enormis ſeu horribilis, a Writ of Superſedeas lieth, or Rev•ation, Coke's 2 Inſt. 419.
Upon an Indictment found by the Commiſſioners before the Term, a Special Commiſſion of Oyer and Terminer165 may be granted for them to proceed, altho' the Court of Kings Bench be ſitting in the ſame County: But it is beſt for the Commiſſion to bear Teste after the beginning of the Term: But General Commiſſions of Oyer and Terminer are ſuſpended during the term or time the Kings Bench ſits in the ſame County; or if the Kings Bench be adjourned, the General Commiſſion may proceed, Coke's 3 Inſt. 27. Coke's 4 Inſt. 163.
The Kings Bench is more than Eyre; Therefore in Term time no Commiſſions of Oyer and Terminer, or Gaol-Delivery by the Common Law may ſit in the County where the Kings Bench ſitteth, for praeſentia majoris ceſſat potestas minoris, and therewith agreeth 27 Aſſ. p. 1. But Carliſle and Erwing were Indicted and Arrained in London where the Murder was Committed, before Juſtices of Oyer and Terminer in the Term time, becauſe in another County than where the Kings Bench ſit, Coke's 9 Rep. 118. Lord Sanchar's Caſe.
For Tryal of Treaſons Committed out of the Realm, &c. by Commiſſions appointed by the King, &c. See the Statute of 26 Hen. 8. 33 Hen. 8. 35 Hen. 8. 5 and 6. of Ed. 6, &c.
166If a Commiſſion of Oyer and Terminer be diſcontinued or expired, &c. the Indictments and Records ſhall be removed into the Kings Bench, as to their proper Center, Coke's 2 Inſtitutes 419.
THeſe Courts are Four in number, Raiſed by ſeveral Acts of Parliament, Two of which, viz. That concerning Purveyors, and that concerning Miſdemeanors of Villains being obſolete We ſhall only give a Brief account of the Style, and Nature of the other Two, referring their Juriſdiction and Proceedings therein, to the Acts of Parliament themſelves. And firſt of that concerning
THis Court is Raiſed by the Statute of 39 Eliz. cap. 4. wherein is to be obſerved, That their Proceedings, Judgments, and Executions ſhall remain good, and available in Law, without any Redreſs to be had by Suit in any other Court; as you may ſee more at167 large by the Statute, and Expoſition thereof, in Coke's Fourth Inſtitutes. And the other is concerning,
BY the Statute of 39 Eliz. cap. 6. The Lord Chancellor (or Chancellor for the Dutchy of Lancaſter, for Lands in that County) may award Commiſſions to the Biſhop of the Dioceſs, and his Chancellor, and other perſons of good and ſound Behaviour; To enquire of all Colledges, Hoſpitals, and other places Founded or Ordained for the Charitable relief of Poor, Aged, and Impotent people, Maimed Soldiers, Schools of Learning, Orphans, or for ſuch other good, charitable, and lawful Purpoſes and Intents. And of all Lands, &c. given or appointed for thoſe uſes: As alſo for Reparations of all High-ways, Bridges, and Sea-Banks, for Maintenance of Free-Schools, and Poor Scholars, and of Orphans, and Fatherleſs Children, and ſuch like good and lawful Charitable uſes, and to enquire of the Abuſes, Miſdemeanors, Miſ-employments, Falſities, defrauding the Truſts, Alienations, Miſgovernments,168 &c. And to ſet down ſuch Orders, Judgments, and Decrees, that the ſame may be obſerved in full, ample, and moſt liberal ſort, &c. Which Orders, Judgments, and Decrees (not being contrary to the Orders or Decrees of the Donors) ſhall be firm, and good, and are to be certified by the Commiſſioners into the Chancery of England, or of the County Palatine of Lancaſter, &c.
And it is to be obſerved, that when any Act of Parliament doth authorize the Lord Chancellor or Keeper to make a Commiſſion under the Great Seal, he may do it without further Warrant, the King being party to the Act of Parliament.
But this Statute was afterwards Repealed by 43 Eliz. 4. Saving for the Excution of Orders and Decrees before made by Commiſſioners, according to the Statute.
And by the Statute of 43 Eliz. 4. It ſhall be lawful for the Lord Chancellor, or Lord Keeper for the time being, and for the Chancellor of the Dutchy of Lancaster (within that Precinct) to Award Commiſſions into any part of the Realm, reſpectively to the Biſhop there and his Chancellor (if any at that time) and to other Perſons of Good Behaviour,169 Authorizing Four or more of them to Inquire as well by the Oaths of Twelve, or more Lawful Men, as otherwiſe of all Grants, Gifts, Augmentations, Limitations, and Appointments, and of all Abuſes and Miſemployments of all Land, Tenements and Hereditaments, and of all Goods and Chattels given, limitted or appointed to Charitable uſes, &c. See the Statute at large, and 21 Jac. 1. cap. 1.
BY the Law Ne homines diu detineantur in Priſona; but that they may receive, Plenam & celerem Juſtitiam. The Commiſſion of Gaol-Delivery was Inſtituted 4 E. 3. and by this Commiſſion Goals ought to be delivered Thrice in the year, and oftner if need be; and the Authority given thereby conſiſteth in theſe few Words, Conſtituimus vos Justiciarios noſtros ad Gaolam noſtram Caſtri nostri de C. de Priſonibus in ea exiſtentibus, hac vice deliberand '.
And theſe Juſtices may arraign any man in that Goal upon any Indictment for Felony, Treſpaſs, &c. before Juſt•ces of Peace, though not found before themſelves, which Juſtices of Oyer and Terminer cannot do; and they may170 take a Pannel of a Jury Return'd by the Sheriff, without making any Precept to him, which Juſtices of Oyer and Terminer may not. To theſe Juſtices Commiſſions of Aſſociation, Writs of Admittance, and Si non omnes (like as to Juſtices of Oyer and Terminer are directed) and other Authorities, Juriſdictions, and Priviledges they have; of which you may Read at large Coke's 4 Inst. cap. 30.
By the Statute of 6 R. 2.5. Juſtices of Aſſize, and Gaol-Delivery ſhall hold their Seſſions in the chief Towns of every County, where the Shire Courts there uſe to be holden.
By the Statute of 8 R. 2.2. no man of Law ſhall be Juſtice of Aſſize or Gaol Delivery in his own Country; and the Chief Juſtice of the Common-Bench ſhall be aſſigned amongſt others to take Aſſizes, and to deliver Gaols; but as to the Chief Juſtice of the Kings-Bench, it ſhall be as for the moſt part of 100 years laſt paſt hath been wont to be done.
By the Statute of 14 H. 6.3. the Seſſions of the Juſtices of Aſſize and Gaol-delivery in Cumberland ſhall be holden (in the time of Peace and Truce) in the City of Carliſle, and not elſewhere, according to the Statute of 6 R. 2 5.
171By Stas. de Finibus levatis, cap. 3.27 E. 1. Juſtices of Aſſize preſently after the Aſſizes taken ſhall deliver the Gaols; but if one of them be a Clerk, the other that is Lay, aſſociating unto him one of the moſt diſcreet Knights of the County, ſhall deliver the Gaols.
The Juſtices ſhall then alſo Enquire, Whether Sheriffs, or any other, have let out by Plevin any Priſoners not pleviable, or have offended in any thing againſt the Statute of Weſtm. 2.13 E. 1. and ſhall puniſh them according to the force of the ſaid Statute.
By the Statute of 2 E. 3 2. Juſtices of Gaol-delivery, and Oyer and Terminer, procured by Great Men, ſhall not be made againſt the Form of the Statute of 27 E. 1. cap. 3. And Aſſizes, Attaints, and Certifications, ſhall be hereafter taken before Juſtices commonly aſſigned, being good and lawful Men, and having knowledge in the Law, according to the Statute of Westm. 2.29 Ed. 1.
By the Statute of 4. E. 3.2. good and diſcreet Perſons ſhall be aſſigned in all Shires of England to take Aſſizes, Juries, and Certifications, and to deliver the Gaols Three times in the year at leaſt.
172Juſtices of Gaol-delivery ſhall have power to Deliver the Gaols of thoſe that ſtand Indicted before the Kee•ers of the Peace, which Keepers ſhalt ſend thoſe Indictments before the Juſtices of Gaol-delivery, who ſhall have power to Enquire of, and puniſh Sheriffs Gaolers and others, which do any thing againſt this Act.
Judges ought not to Deliver their Opinions before-hand of any Criminal Caſe, tha•may come before them Judicially; For how can they•e indifferent, who have delivered their Opinions before hand, wi•hout hearing of the party, Co. 3 Inſt. 29.
By the Statute of 19 H. 7.10. the Sheriff of every County ſhall have the keeping of the Common Gaol there, except ſuch as are held by Inheritance or Succeſſion; Alſo all Letters Patents of the keeping of Gaols for Life or Years, are annulled and void. Howbeit neither the Kings-Bench nor Marſhalſea ſh••l be in the cuſtody of any Sheriff; a•d the Patents of Edward Courtney Earl of Devon, and John Morgan, for Keeping of Priſons are excepted.
By the Statute of 6 Hen. 8.6. the Juſtices of the King's-Bench have power (by their Diſcretions) to Remand as well the Bodies of Felons, as their Indictments173 into the Counties where ſuch Felonies were committed; and alſo to command the Juſtices of Gaol-delivery, of Peace, and all other Juſtices and Commiſſioners, there to proceed and determine ſuch Felonies in like manner, as if their Bodies and Indictments had not been removed.
Juſtices of Gaol-delivery may take a Pannel of a Jury Returned by the Sheriff without making any Precept to him, as Juſtices of Oyer and Terminer ought to make, becauſe a General Commandment is made to the Sheriff by the Juſtices of Gaol-delivery, to Return Juries againſt their coming.
They may deliver Suſpects for Felony, &c. by Proclamation againſt whom there is no ſufficient Evidence produced to the Great Inqueſt ▪ to Indict them, &c. which Juſtices of Oyer and Terminer or Juſtices of Peace cannot do.
If a Man be Indicted before Juſtices of the Peace, and thereupon Outlawed, and is taken and committed to Priſon, the Juſtices of Gaol-delivery may award Execution of this Priſoner.
They may aſſign a Coroner to an Approver, and make Proceſs againſt the Appellee in a Foreign County.
174They may puniſh thoſe that let Men to Bail or Mainprize which are not Bailable by Law, or ſuffer them to Eſcape.
By the Statute of 1 E. 6. In all Caſes where any Perſon or Perſons heretofore have been, or hereafter ſhall be found guilty of any manner of Treaſon, Murder, Manſlaughter, Rape, or other Felony whatſoever; for the which Judgment of Death ſhould or may enſue, and ſhall be Repried to Priſon without Judgment at that time given againſt him, her, or them, found ſo Guilty, that thoſe Perſons that at any time hereafter ſhall by the King's Letters Patents, be aſſigned Justices to deliver the Gaol where any ſuch Perſon or Perſons found Guilty ſhall remain; ſhall have full Power and Authority to give Judgment of Death againſt ſuch perſon ſo found Guilty and Repried, as the ſame Juſtices before whom ſuch Perſon or Perſons was or were found Guilty might have done, if their Commiſſion of Gaol-Delivery had remained in force.
Juſtices of Gaol-Delivery ſhall ſend their Records and Proceſs determined, and put in Execution to the Exchequer at Michaelmas every year, to be delivered there to the Treaſurer and Chamberlains, &c. to keep them in the Treaſury.
175Juſtices of Gaol-delivery may receive Appeals of Robbery and Murder by Bill; but the Appellees muſt be in Priſon before them. Co. 4 Inſt. c. 30.
And more of their Juriſdiction and Authority you may read in the Statutes at large.
THe word Foreſt is made by changing E. into O. from Fereſta, (hoc eſt,) Ferarum ſtatio; it being a Manſion, or ſafe dwelling of all Beaſts of the Wood, and this Foreſt doth conſiſt of Eight things, viz. Soil, Covert, Laws, Courts, Judges, Officers, Game and certain Bounds; of all which we ſhall ſpeak ſomewhat in order as they lie. And Firſt of
The Soil of the Foreſt, which is Woody ground where there is good Covert, and Fruitful Paſtures; and it is not material that the Wood belong to the King or another; And when the King will make a Foreſt, a Writ ſhall be Iſſued to the Sheriff of the County where the Foreſt ſhall be, to Enquire what place ſhall be fit to make a Foreſt, who thereupon ſhall take an Inqueſt and Inquire of the content of the Place and the Bounds, and ſhall put176 the ſame Bounds in certainty, and all he doth he ought to return into the Chancery, and when the King is thereof aſcertained by ſuch matter of Record, the King ſhall by Letters Patents command the Sheriff to make Proclamation, That the place which he hath returned ſhall be afterwards a Foreſt, and that none ſhall Hunt within thoſe Woods they being for his Pleaſure to reſerve the Wild Beaſts, and Game to himſelf: And this Foreſt is not neceſſarily to be made in every County. But in
The Grand Covert, and Woody Ground where the Beaſts may have place of Defence and Food, which are called Vert, and are to be preſerved to the end that the Game may have both Shelter, and Browze; And yet altho' ſuch Commandment be made by the King as aforeſaid, it is no Foreſt until Wild Beaſts are put there, which ſort of Wild Beaſts are thoſe which are herein after mentioned. And are called
The Game of the Foreſt, conſiſting of Seven kinds, which by the Laws of England are Beaſts of the Foreſt, viz.
The Hart in Summer, The Hind in Winter, with their proceed which are thus Termed; The Male, The firſt year A. Calf, The ſecond A Brooket. 177The third A Spayad, The fourth A Staggard, The fifth A Stagg, The ſixth A Hart. And ſo afterward the Female, The firſt year A Calf, The ſecond A Brocketts Siſter, The Third A Hinde.
The Buck in Summer, The Doe in Winter, with their proceed thus Termed; The firſt year A Fawn, The ſecond A Pricket, The third A Sorel, The fourth A Sore, The fifth A Buck of the Firſt Head, The ſixth A Great Buck.
The Hare Male, and Female, with their proceed which are called, The firſt year A Leveret, The ſecond A Hare, The third A Great Hare.
The Wild Boar whoſe proceed is Termed; The firſt year A Pig, The ſecond A Hogg, The third A Hogg-stear, The fourth A Boar, and after A Sanglier; And theſe four kinds being wholeſome Food for Man, are called Beaſts of Venery, and Veniſon.
But the other Three kinds as,
The Wolf, The Marton, The Fox, being Solivaga, and Nociva, are not called Veniſon, although they are accompted Beaſts of the Foreſt: And befor it be a perfect Foreſt, the King muſt appoint certain
Officers, Foreſters, or Keepers, in Fee, or for Life, who by Charta de Foreſta, are to be as many178 as ſhall ſeem ſufficient; Four Verderors, Twelve Regarders, Agiſtators Four, Under Foreſters Eight, The Wood-ward and the Game-keeper, or Maſter of the Game of the Foreſt. The Foreſtor is made by Letters Patents, The Verderors by Writ; How the Reſt are made, and for their Authority, See the Books at large. And next we ſhall briefly deſcribe.
The Courts of the Foreſts which are Four, To be held within the Foreſts at ſuch places, times and in manner, herein after expreſſed, viz.
The Court of Attachments, or the Woodmote Court; This is to be kept before the Verderors, every Forty days throughout the year, and thereupon it is called the Forty-day Court: At this Court the Foreſters bring in the Attachments de Viridi, & Venatione, and the Preſentments thereof, and the Verderors do Receive the ſame and Inrol them. But this Court can only Inquire and not Convict: But it is obſerved, That no Man is to be Attached by his Body for Vert or Veniſon, unleſs he be taken with the mayneer within the Foreſt, or otherwiſe the Attachment muſt be by his Goods.
179The Court of Regard or Survey of Dogs, is holden every third year for Expeditation, or Lawing of Dogs.
The Court of Swanimote, is to be holden before the Verderors as Judges by the Steward of the Swanimote, thrice in the year; and the Foreſters ought to preſent their Attachments at the next Swanimote Court; and the Freeholders within the Foreſt are to appear at the Swanimote to make Inqueſt and Juries: And this Court may Inquire De ſuperoneratione Foreſtariorum, & aliorum Miniſtrorum Forestae, & de eorum Oppreſſionibus Populo Noſtro illatis; And this Court may not only Inquire, but Convict alſo, but not give Judgment.
The Court of the Juſtice Seat, holden before the Juſtice in Eyre of the Foreſt, who hath Authority and Juriſdiction to hear and determine concerning Vert and Veniſon, by force of Letters Patents under the Great Seal; whereof there be Two, One for the Foreſts on this ſide Trent, the other beyond Trent; by which Letters Patents the King doth grant unto him,
Officium Guardiani, Capitalis Juſticiarij, ac Juſticiarij ſui itinerantis, omnium & ſingularum Foreſtarum, Parcorum, & Warrenarum ſuarum, cum ſuis Pertinentijs180 quibuſcunque ultra Trentam Existen ', &c. Dantes & concedentes eidem A. B. plenam Authoritatem, & Potestatem tenore praedictarum Litterarum Patentium; Omnia, & omnimoda Placita, Querelas, & Cauſas Forestarum, Parcorum, Chacearum, & Warrenarum praed', tam de Viridi Gram ', quam de Venatione, ac de alijs cauſis quibuſcunque infra eaſdem Forestas, Parcos, Chaceas & Warrenas, eveniend', ſive emergen 'audiend', & determinand ', habend', Occupand ', Gaudend', & Exercend ', Officio praed' cum pertin 'per ſe, vel per ſufficient'. Deputatum ſuum ſive Deputatos ſuos, ſuffic 'durante vita ipſius A. B. &c.
And this Court of the Juſtice Seat cannot be kept oftner than every Third year, and other Juſtices in Eyre kept their Courts every Seventh year: And it muſt be Summoned Forty days at leaſt before the Sitting thereof; And one Writ of Summons is directed Cuſtodi Forestae Domini Regis vel ejus Locum tenenti in eadem; And this Writ conſiſts of two parts: Firſt, To Summon all the Officers of the Foreſt, and that they bring with them all Records, &c. Secondly, All perſons who claim any Liberties or Franchiſes within the Foreſt, &c. and to ſhew how they claim the ſame: And this Court of Juſtice Seat hath Juriſdicton to Inquire, hear and determine181 two things: Firſt, All Treſpaſſes within the Foreſt, according to the Laws of the Foreſt: Secondly, All the claims of Franchiſes, Priviledges and Liberties within the Foreſt, as to have Parks, Warrens, Vivaries, to be quit of Aſſerts, and purpreſtures, To cut down his own Woods without view of the Foreſter, &c. And this Chief Juſtice may by the Statute of 32 Hen. 8. cap. 35. make his Deputy.
And for Reparation to the Juſtice Seat, is a Writ of Regard directed to the Sheriff of the County as followeth:
For the Duty of Foreſters, Verderours Agiſtators, &c. in preſenting Offences in the Foreſt, Vide Ordinatio Foreſtae, 34 Ed. 1. and Coke's 4 Inſt. cap 73.
Any perſon having right to make any claim may in perſon, or by Attorney the firſt day of the Eyre Exhibit his Petition; But he ſhall be fined if he make falſe Claim.
The other Writ of Summons is directed to the Sheriff of the County, and the ſubſtance thereof is to Summon all Archbiſhops, Biſhops, Abbots, &c. having Lands, &c. within the Foreſt, and Four Men of every Village within the Foreſt, and all others who ought to come before the Juſtices of the Pleas of the Foreſt, That they be at Pickering Launce, &c. before Four Great Learned Men, Juſtices in Eyre of the Foreſt, to do what thereunto belongs, and to bring their Regards with all Attachments, &c. To which the Sheriffs make183 a full Return, &c. And next we are to ſpeak ſomewhat of
The Laws of the Foreſt, which conſiſt chiefly of the Statute De Charta de Foreſta, and Ordinatio de Foreſta, 34. E. 1. And Foreſt Laws of England, which are certain and eſtabliſhed by Authority of Parliament: Of which you may Read in the Statutes at large.
And of Foreſts in England are Sixty nine; of ſo great Antiquity, that no Record or Hiſtory doth mention their Beginnings; Except New Foreſt in Hampſhire, Erected by W. the Conquerour as Conquerour; And Hampton Court Forest, Erected by Hen. 8. by Authority of Parliament: And now we come to ſpeak of
The Metes, and Bounds of the Foreſt according to Charta de Foreſta, Hugh de Nevill, and Bryan de Liſle were appointed Commiſſioners to Inquire what were the ancient Metes, and Bounds of ſuch Foreſts as Hen. 2. Or any King after him had enlarged, which with divers other Perambulations, and Deaforeſtations were made, and are returned into the Chancery, and remain of Record in the Tower.
184And a Perambulation of the Foreſt of Sherwood, was made the 9 of Sept. 30 Hen. 8. By Robert Brimeſly, and Fifteen others Regarders of that Foreſt, which Perambulation began from the King's Caſtle of Nottingham, and from thence proceeding to Kingsbridge Meadow Gate, from thence by the Old Trent, unto the Old Watercourſe of Leen, &c. round the Foreſt. And now this leads incidently to ſpeak of
The Purlieus, which containeth ſuch grounds as H. 2. R. 1. or King John added to their Ancient Foreſts over others Mens grounds; and which were Diſaforeſted by force of the Statute of Charta de Forest 'cap. 1. & 3. and the Perambulations, and Grants thereupon is derived from a French Adjective, and a French Noun, viz. Pur, which ſignifieth clear, entire and exempt and Lieu (that is place) as a place clear and exempt from the Foreſt: And both of theſe derived from the Latin adjective, and Noun, viz. Purus Locus. And the Serambulation whereby the Purlieu is Deafforeſted is called in French Pourallèe i. e. Perambulatio. By this it appeareth, That Chaſes that never were Foreſts cannot have any Purlieu, and conſequently the caſe of 16 Eliz. Dyer 326. is miſtaken, for the Chaſe of185 Whaddon never was a Foreſt.
The Owners of the Soil within the Purlieu may at their will and pleaſure Fell, Cut down, Eradicate, and Stub up all Timber, Trees, Woods, and Under-woods, and convert the ſame into Arrable Land, or diſpoſe and incloſe the ſame, as if the ſame had never been Afforeſted.
The King's Ra••gers may Re-chaſe with their Hounds any Deer out of the Purlieu into the Foreſt again, and may preſent unlawful Huntings, and Hunters of the Kings Deer within the Purlieu, as in the Night, or at unſeaſonable Deer, or by one no Purlieu Man. As appears by the Rangers Oath, Coke's 4 Inst. cap. 73. And where is no Purlieu, there are no Rangers.
The Kings Game or Deer are not marked, therefore Ranging out of the Foreſt, and Purlieu (if any be) belonging to the King: Therefo•e the Abbot of Whitby Huntting in Whitby Foreſt, adjoyning to the Foreſt of Pickering, which belonged to the Earl of Lancaſter; The Sheriff being commanded to Summon the Abbot before the Juſtices in Eyre, 8 E. 3. Rot. 42. He pleaded his Title to the Foreſt, and that all Abbots of that place by their Grants might with Engins, Netts, &c. take Wild Beaſts.
186By which it appears, That when the Kings Game range out of the Foreſt, they are at their natu•al Liberty, Et occupanti conceduntur. And now a word of
The Drifts of the Foreſts by the Statute of 32 Hen. 8. all Foreſts, Chaſes, Commons, Heaths, Moors and Waſt grounds, within England and Wales, are to be driven at the Feaſt of St. Michael yearly, or within 15 days after, or at any other ſeaſon or time of the year. And the end of theſe Drifts is, Firſt, To ſee if thoſe who ought to Common do Common with ſuch Cattel as by Preſcription, or Grant they ought: Secondly, That they do not Surcharge: Thirdly, If the Cattel of any Stranger be there who ought not to Common at all.
A Forreſt being as it is deſcribed before, that which hath Power to hold the ſeveral Courts before mentioned; it is further to be obſerved, That if the King having a Foreſt, grant the ſame to a Subject in Fee, the Grantee ſhall have no Foreſt, becauſe he hath no power to make Juſtices, and Officers of the Foreſts to hold Courts, &c. But if the King grant a Foreſt to a Subject with this further, That upon requeſt made in Chancery, he and his Heirs187 ſhall have Juſtices of the Foreſt, Then the Subject hath a Foreſt in Law. As the Duke of Lancaſter had the Foreſts of Pickering and Lancaſter. And the Abbot of Whitby had the Foreſt of Whitby in the County of York.
A Chaſe is where there are Keepers only, and no Court of Swanimote, but is governed by the Common Law. And when a Foreſt is granted by the King to a Subject (without the Power above mentioned to have Juſtice of the Foreſt,) Then that which was a Foreſt before, ſhall be ſaid to be a Chaſe; and a Chaſe is a certain compaſs of Ground to nouriſh and maintain Deer granted by the King in my own Land, and is not incloſed, but lieth open.
A Park is Land incloſed, and ſtored with Wild Beaſts, which may be had by Preſcription, as well as by Grant of the King; and a Park is always incloſed with ſome Pale, Wall or the like, and is not open, for if it lie open, it is cauſe of Forfeiture or Seiſure.
A Warren is where one by Grant of the King, or by Preſcription, doth uſe to have Pheaſants, Partridges, Conies, and Hares, and no other Wild Beaſt, or Vermin within certain of his Lands. And none may make a Warren but the188 King, no more than they may make a Foreſt, or Chaſe, becauſe it is a ſpecial Priviledge which belongeth to the King only: But it may be had by Preſcription. And in every Warren is a Maſter, and Servants to attend for the ſafeguard of the Beaſts, and Birds of Warren; but there is no Court of Swanimote or other Court; For Treſpaſs done in a Warren is puniſhable by the Common Law; And the King may grant to me Warren which he hath in ſuch his Demeſne Land, And alſo which he hath in Lands of others; And may grant me Waren in my Lands for Conies and Hares, and to an other that he have Warren there for Partridge, and Pheſant; And if the King grant that none ſhall Chaſe or Hunt any Beaſts in my Land, it is a good grant for Beaſts of Chaſe, and Warren, and it is not a Warren; but a Free Chaſe. And for other matters relating to Foreſt, Park, Chaſe, and Warren, Vide compton's Juriſdiction of Courts and Coke's 4 Inſt.
The Beaſts of Park or Chaſe properly extend to the Buck, the Doe, the Fox, the Roe, the Marton, but in a common and Legal Senſe, to all the Beaſts of the Foreſt.
189The Foreſt and Chaſe differ in Offices and Laws, every Foreſt is a Chaſe, but every Chaſe is not a Foreſt.
Beaſts of Foreſt are properly a Hart, Hind, Buck, Hare, Boar, Wolf, ut ſupra but legally all Wild Beaſts of Venery.
There are both Beaſts and Fowls of Warren, as Hares, Conies and Roes called in Records Capreoli; Fowls of two ſorts, Terreſtres and Aquatiles; Terrestres of two ſorts, Silvestres and Campeſtres; Campeſtres as Partridge, Qu•il, Rail, &c. Silveſtres as Pheſants, Woodcock, &c Aquatiles, as Mallard, Hern, &c Of the Officers of Park, Foreſt, &c and Conditions annexed and cauſes of forfeiture, See Coke's 1 Inſt. 233. a. b.
Vivarium is taken for Waters where Fiſhes are kept, Coke's 2 Inſt. 162.
It is not lawful for any Man to Erect a Park, Chaſe or Warren without a Licenſe under the Great Seal of the King, who is Pater Patriae and Head of the Common-wealth, for the Common Law gave no way to matters of Pleaſure, (wherein moſt Men do exceed) for that they brought no profit to the Common-wealth.
190Unto a lawful Park three things are requiſite. Firſt, A Liberty either by Grant of the King, or by Preſcription. Secondly, Incloſure by Pale, Wall or Hedge. Thirdly, Beaſts Savages of Park.
By Stat. Weſtm. 1. cap 20. Treſpaſſes in Parks and Vivaries ſhall make good, and high amends according to the manner of the Trepaſs, have Three years Impriſonment, make Fine to the King, or otherwiſe find Surety no more to Offend, or elſe to Abjure the Realm.
If one Hunt in a Park, or Fiſh in a Pond, altho' he kill no Deer, or take any Fiſh; yet this is a Misfeazance within this Statute.
And this Act being Affirmative to the Common Law, the party may bring his Action upon this Statute, or may waive the benefit of this Act, and bring his Action of Treſpaſs Generally at the Common Law.
If the Damages given be too ſmall, the court may encreaſe the Damages.
The King may pardon the Exemplary Puniſhments, Coke's 2 Inſt. 200, 201.
To Steal a Tame Deer not known is no Felony, Coke's 2 Inſt. 20.
191The Office and Duty of Foreſters, how to be executed by Deputy for a Woman; of what a Foreſt doth conſiſt, Co. 4 Inſt. 289. What paſtes by Grant of a Foreſt, See Coke's 4 Inſt. 289, 314.
Foreſts called Walds and Buckholts; The ſeveral Courts of the Foreſt, Foreſts Laws, The Beaſts and Seaſons of the Beaſts of the Foreſts, Deafforeſtations, Drifts of the Foreſts, Purlieus, Treſpaſſes, &c. Vide Coke's 4 Inſt.
Parks called by the Saxons, Deorfald of Herbage, and Pawnage in Parks.
The King cannot make a Foreſt or Park in other Mens Grounds.
Parks are not to be guided by Foreſt Laws, Coke's 4 Inſt.
Where the Owners may cut down Woods in Free Chaſes, and where they muſt have Common; And divers matters concerning Foreſts, Chaſes and Warens, See Coke's 4 Inſt.
By the Statute of 22 E. 4. The Owner of Woods in Foreſt, &c. ought firſt to cut the Woods, and then to incloſe.
By the Statute of 35 Hen. 8. They ought firſt to Incloſe, and then within four Months cut the Wood; And the Stature Weſtminſter, De Malefactoribus in Parcis, Charta de Foreſta, and other Acts concerning Foreſts, &c. are General192 Laws concerning all Perſons, whereof the Court Ex Officio ought to take notice, Coke's 8 Rep 137, 138. Sir Francis Barrington's Caſe.
If Fair, Market, Hundred, Leet, Park, Warren and the like are appendant to Mannors, or in Groſs, and afterwards they come back to the King, they remain as they were before in Eſſe, not Drowned in the Crown, Coke's 9 Rep. 25. Abbot of Strata Marcella.
If Licenſe be given to a Duke to H•nt in a Park; The Law for conveniency giveth him ſuch attendance as is requiſite to the Dignity of his Eſtate. And what ſhall be cauſes of Forfeiture of a Parkerſhip, By cutting more than neceſſary for Browſe, or Miſuſing, Nonuſing or Refuſing his Office, &c. Vide Coke's 9 Rep. 49, 50. Earl of Shrewbury's Caſe.
None can make a Park, Chaſe or Warren in his own Land without the Kings Licenſe, and if he do in a Quo Warranto, they ſhall be ſeiſed into the Kings hands: But a Man for his Pleaſure may Hawk, Hunt, &c. in his own Land without any Licenſe.
The King granted to another all the Wild Swans, between London-Bridge and Oxford, Coke's 11 Rep. 86, 87. the Caſe of Monopolies.
193More concerning Foreſts, Game, &c. and the Diſcovery and Puniſhment of Offenders therein; you may Read in the Statutes concerning Foreſts, Deer-Stealers, Hunters and Game, &c. at large.
THey are Originally Inſtituted for the good Rule of the Subject, and for the Eaſe of the Countries, and that ſuch as had Franchiſes might claim them. They were called Inſticiarij in Itinere, or Itinerantes in reſpect of other Juſtices that were Reſidentes: In the Black Book in the Exchequer, they are called Inſticiarij Deambulantes &, Perluſtrantes.
Their Authority was by the Kings Writ in nature a Commiſſion, And the Stile of their Court was, Placita de Juratis, & Aſſiſis, & Coron 'Itinere Johannis de Vallibus, & Sociorum Juſtic' Itiner 'apud Ockham in Com' Rutland' in Crastino Epiphan 'Dom' Anno Regni Regis Edw. 14.
They had Juriſdiction of all Pleas of the Crown, and all Actions Real, Perſonal and Mixt, they Rode and held their Courts, from Seven years, to Seven years; and firſt they began with194 Pleas of the Crown. But now by the Statute of 27 Hen. 8. cap. 24. All Juſtices in Eyre muſt be by Letters Patents under the Great Seal.
In what County ſoever they came, All other Courts during the Eyre ceaſed, and all Pleas in that County or ariſing there before any other, The Juſtices in Eyre might proceed upon as the other might have done.
See the firſt part of the Inſtitutes of their Antiquity, and Juriſdiction, and the Cauſes wherefore they vaniſhed away; And what Franchiſes, and Liberties, ought to be claimed before them, See the Caſe of the Abbot of Strata Marcella, Coke's Rep. Lib. 9.
Eyre Juſtices or Itinerant as we call them, were Juſtices that uſed to Ride from place to place throughout the Realm to Adminiſter Juſtice; And they had anciently Authority to Grant Land ſeized, for Alienation without Licenſe as Juſtices of the Foreſt, (who in Effect as to this purpoſe are Juſtices in Eyre) may do at this day of Land Incloſed without the Kings Licenſe, Terms del Ley.
Juſticiarij Itinerantes were ſo called in reſpect, that the Juſtices reſiding at Weſtminster were Juſticiarij Reſidentes, Eyre being Quaſi Iter: And theſe Juſtices were much like in this Reſpect to195 the Juſtices of Aſſize at this day, altho' for Authority and manner of proceeding far different, and as the Juſtices of Aſſize by many Acts of Parliament, and other Commiſſions increaſed in power, ſo the Juſtices Itinerant vaniſhed away, Coke's 1 Inſtitutes 293. a.
FRom the Proceeding, being as quick as one might trail, or draw a Staff, and having ſome Powers like that of Oyer and Terminer, being alſo vaniſhed we ſhall not further mention, but refer to Coke's 4 Inſt. cap. 34.
Three new things which have fair pretences are commonly hurtful to the Common-wealth. Firſt, New Courts. Secondly, New Offices either in Courts of Juſtice, or out of them, which cannot be done but by Parliament. Thirdly, New Corporations Trading into Foreign parts, and at home, which in the end produce Monopolies, Vide Stat. Art. ſuper Chartas cap. 1. where was the firſt ground of raiſing the Juſtices of Trebaſton or Trailbaſton, who had ſuch Authority as Juſtices in Eyre; But albeit they had their Authority by Parliament; yet Error upon their proceeding196 did lie in the Kings Bench: Which being known, and their Authority fettered with many Limitations, they by little and little vaniſhed, Coke's 2 Inst. 540.
THis Court was raiſed by Authority of Parliament, 32 Hen. 8. cap. 46. concerning the Authority, and Juriſdiction whereof, you may ſee the Statute, and Coke's 4 Inst. cap. 35. To which I refer, it being now taken away by the Statute of 12 Car. 2. cap. 24. The Revenue of Exciſe being ſetled in the Crown inſtead thereof.
THis is in nature of a Court Baron, wherein the Suitors are Judges, and is no Court of Record, For Brevia Clauſa Recordum non habent.
All thoſe that hold of theſe Manors in Soccage are called Tenants in Ancient Demeſne, and they Ploughed the Kings Demeſnes of his Manors; and Plowed, Sowed, Manured, and Managed all like neceſſaries to the Kings Husbandry; And that they might apply themſelves more freely to their197 Labours, They had Six Priviledges: 1ſt, Not to be impleaded for their Lands out of the Mannors; But by the Little Writ of Right-cloſe, directed to the Bailiffs of the Kings Manors, or to the Lord of the Manors, if in the hand of a Subject: 2ly, Not to be Impannelled to appear at Weſtminſter, or elſe where upon any Inqueſt or Tryal: 3ly, To be Free of all Tolls for things concerning Husbandry, or Suſtenance. 4ly, To be Free from Taxes, and Tallages by Parliaments, unleſs ſpecially named: 5ly, Of Contributions to Expences of Knights of Parliament: 6ly, If they be ſeverally diſtrained for other Services, they all may join in a Writ of Monstraverunt to ſave charges.
And theſe Priviledges remain, altho' the Manor be come to the hands of Subjects, and altho' their Services of the Plough, is for the moſt part changed into Money.
Lands in ancient Demeſne may be extended upon a Statute Merchant, Staple or Elegit, and regularly all general Statutes extend to ancient Demeſne: But Rediſſeiſin, and ſome others do not lie in ancient Demeſne, For which ſee Coke's 4 Institutes cap. 58. and their Priviledge doth not extend to Perſonal198 Actions, in which by common Intendment the Title of the Freehold cannot come in debate.
The Demandant cannot remove the Plea, but the Tenant may for Seven Cauſes, Vide Coke ſupra. Thoſe Manors are called Ancient Demeſne of the Crown, which were in the hands of St. Edward the Confeſſor, or William the Conqueror, and ſo expreſſed in Doomeſday Book, begun in the 14 year of Will. the Conqueror 1081, and finiſhed in Six years; And againſt this Book for Trial of Ancient Demeſne lies no Averment. And therefore is like the Doom and Judgment at Doomes-day.
THeir Authority is by Commiſſion under the Great Seal, Now grounded and warranted by the Statute of 23 H. 8. cap. 5. where upon mentioning only ſome Obſervations made by the Lord Coke, we ſhall briefly ſet forth their Juiſdiction, and Authority.
Firſt, That the Commiſſioners ſhall be named by the Lord Chancellor, Lord Treaſurer, and two Chief Juſtices, or any Three of them, whereof the Lord Chancellor to be one.
Secondly, Every Commiſſioner muſt199 take the Oath preſcribed by the Act before the Lord Chancellor or Juſtices of Peace in their Quarter Seſſions, And ought to have Lands, &c. of Forty Marks yearly, and no Farmer of Lands within the Precinct of the Commiſſion, unleſs he have Lands of Freehold worth 40 l. yearly.
Thirdly, The Avowry, or Juſtification for a Diſtreſs taken, ſhall be generally that the Diſtreſs was taken by force of the Commiſſion for a Lot, or Tax Aſſeſſed by the Commiſſion, or for ſuch other cauſe.
Fourthly, There muſt be Six Commiſſioners to Sit by force of the Commiſſion.
Fifthly, The Act of 23 Hen. 8. Doth not extend to reform Nuſance by Sand riſing out of the Sea, and driven to Land by Storms: A ſpecial Proviſion is therein made for the County of Glamorgan.
Sixthly, A Commiſſion of Sewers ſhall continue Ten years, unleſs repealed; or determined by any new Commiſſion, or by Superſedeas.
Seventhly, That Laws, Ordinances, and Conſtitutions made by force of ſuch Commiſſion, and written in Parchment, and Indented under the Seals of the Commiſſioners, or Six of them,200 whereof one part to remain with the Clerk, and the other in ſuch Place as Six of the Commiſſioners ſhall appoint, ſhall without the Royal Aſſent, or any Certificate ſtand in force.
Eighthly, That if any ſuch Commiſſion be determined by Expiration of Ten years from the Teſte, Then ſuch Laws ſo Indented, and Sealed ſhall ſtand in force for a year after, and the Juſtices of the Peace, or Six, (whereof One to be of the Quorum) ſhall have Power to Execute the ſame.
Ninthly, Upon granting a new Commiſſion during that year, the Power of the Juſtices ſhall ceaſe.
Tenthly, The Commiſſioners not to make any Certificate, or Return of their Commiſſion, orany their Ordinances, Laws, and doings by force of the ſame.
Eleventhly, See an Alteration by the Statute of 13 Eliz. concerning Fees.
Twelfthly, Neither the Commiſſioners of Sewers, nor any other have any ſuch Abſolute Authority; but their proceedings are bound by Law.
By Act of Parliament 3 Jac. 1. Walls, Ditches, Banks, Gutters, Sewers, Gates, Cauſeys, Bridges and Water-courſes in or about the City of London, where is no Paſſage for Boats, nor the Water doth Ebb, and Flow, are made ſubject201 to the Commiſſion of Sewers, which they were not before.
And of their Juriſdiction and Authority to Superviſe all Walls, Sewers and Gutters, &c. upon the Sea-Coaſts, and elſe where, and to enforce all Perſons concerned to pay a proportionable part according to the Lands, or Eſtate they have towards the Repair of them, and to that end to make Laws, and Ordinances, and to force the Obſervation of them, Vide F. N. B. fo. 113, 114. Coke's 4. Inſt. cap. 62. And the Statutes at large.
And it is to be noted, that Sewer or Suera is derived from the word Sue, or Iſſue, as the Lord Coke obſerves, and taken for a Sewer, Channel or Gutter of Water.
THe name, and wickedneſs of Bankrupts, comes from Foreign Nations, for B•ruque in French is Menſa, and a Banqueror or Exchanger is Menſarius in Latine, and Rout is a Sign, or Mark metaphorically taken for one that hath ſo ſpent his Eſtate that nothing remains but the Mark, or mention thereof.
202The Commiſſion upon complaint made in Writing to the Lord Chancellor, is granted under the great Seal of England, and their Juriſdiction and Authority is declared and warranted by the Statute of 34 Hen. 8. being the firſt made againſt Engliſh Bankrupts, and the Statute of 13 Eliz. 7. and 1 Jac. 1. cap. 15. and 21 Jac. 1. cap. 19, &c. And the Commiſſioners muſt purſue the Power given by thoſe Acts, or they are liable to the Action of the Party grieved; But they may plead generally.
They have power to Examine the Offender upon Oath, and after he be declared a Bankrupt, to Examine his Wife upon Oath, and Witneſſes alſo, And have power to break open any Houſes, Ware houſes, Chambers, Trunks, Cheſts, &c. of the Offenders: For all which ſee Coke's 4 Inſt. cap. 63. and the Statutes at large.
There is a Court called Curia Curſus Aquae apud Graveſend, and others like it in private, Of which it belongs not to us to treat.
COmmiſſioners and Examiners are not bound ſtrictly to the Letter of the Interrogatory, but ought to Explain every other thing which neceſſarily ariſeth thereupon, for manifeſtation of the whole Truth.
They ought not to diſcover to either Party, or any other, any of the Depoſitions taken, before publication granted.
Nor ought to confer with either Party after the Examination begun, or take any new Inſtructions.
They muſt take the Depoſitions Gravely, Temperately, and without Menace, or Interruption in hindrance of the Truth, which are grievouſly to be puniſhed; And after the Depoſitions taken, muſt Read the ſame diſtinctly to the Witneſſes, and ſuffer them to explain themſelves, and it is ſafe that the Witneſſes ſubſcribe their Names, or Marks to the Paper-Book; But they muſt be certified in Parchment.
Interrogatories ought to be Single, and Plain, Pertinent to the matter in queſtion, but in no ſort Captious, Leading, or Directory.
204In ſome caſes the Courts of Common Law judge upon Witneſſes, but they muſt ever give their Teſtimony Viva Voce, as in Dower, if the Iſſue be whether the Husband be alive or no.
Bracton ſaith, an Alien may not be a Witneſs, but that muſt be underſtood an Alien Infidel, for the Biſhop of Roſſe a Scot was admitted a Witneſs, and Sworn, 4 Eliz. in the caſe of the Duke of Norfolk.
Witneſſes, ought to come to be depoſed untaught and without Inſtruction, And ſhould ſay from his Heart, Non ſum doctus, nec Inſtructus, nec curo de Victoria, modo miniſtretur Juſtitia, Coke's 4 Inſt. cap. 64.
HAth been of ancient time by his Office Magiſter deductus Cygnoram, And or his Authority you may Read in Rot. Patentium, Anno 11 H. 4. Part. 1 M. 14, &c. and Coke's 4•nſt. cap 66. But he hath no Court. No Powl can be an Eſtray but a Swan.
AUlneger of Aulne in French, and that of Ulna. Ulnator: Is an ancient Officer of the Kings Gift before any Statute; For in 14 Eliz. Sir Thomas Darlington was by the Kings Letters Patents Aulneger of Broad Cloath, and had a Fee of the King; for the Fee he had of the Subject was by the Statute of 27 E. 3.
Of ancient time no Cuſtom was paid by the Engliſh, or Stranger but for Wools, Woolfels, and Leather; In the Reign of E. 3. a great part of the Wool was draped into Cloth, And it was adjudged notwithſtanding, that becauſe the Wool was changed by the Labour, and Induſtry of Man into another kind of Merchandizing, no Cuſtom ſhould be paid for it.
The firſt Act of Parliament that gave any Subſidy of Cloath was Anno 23 Ed. 3. (not Printed) viz. 14 d. of Lieges, and 21 d. of Strangers, for every Cloath of Aſſize, and 2 s. 4 d. of Lieges, and 3 s. 4 d. of Strangers, for every Cloath of Scarlet, and the reaſon of granting theſe of Broad Cloath was, Quia jam Magna Pars Lani Regni noſtri in eodem Regno Pannificitur, &c.206 And for further ſatisfaction of the King for Cuſtoms of Wools, Anno 27 E. 3. A Subſidy was granted to the King, his Heirs and Succeſſors (over the Cuſtoms thereof due) viz. of every whole Cloath of Aſſize not Ingrained 4 d. the Half Cloath 2 d. every whole Cloth Ingrained 5 d. the Half Cloth 2 d. 1 / 2, The whole Cloth of Scarlet 6 d. The Half Cloath 3 d.
The Aulnegers Fee is granted by Act of Parliament, viz. for the Meaſuring of every whole Cloath of Aſſize of the Seller, a Half penny, and for the Half Cloth One farthing, and no more, and for Cloth leſs, or not to be ſold, nothing.
Nota, Conſuetudines, & Custumae, Cuſtoms and Subſidies are taken as Synonima's.
In Hillary Term Anno 2 Jac. 1. Upon Suit to the King by the Duke of Lenox; a Queſtion being moved, whether new Draperies, as Frizadoes, Bays, &c. were within the aforeſaid Statute; It was reſolved by the Judges, That all new made Drapery made wholly of Wool, as Frizadoes, Bayes, Northern Dozens, &c. are to yield Subſidy, and Aulnage according to the Statute of 27 E. 3. But Fuſtians, Canvas, Sackcloth, &c. made meerly of other Stuff are not to be charged therewith.
FOR the Civil Government of Counties, the King makes choice of ſome of the Nobility, Clergy, Gentry, and Lawyers, Men of Worth, and Parts, who have their uſual Reſidence in the County, ſo many as the King pleaſeth to keep the Peace of the County: And theſe by the Commiſſion under the Great Seal are called
Juſtices of Peace, at firſt Styled, Wardens of the Peace; and ſuch whom the King moſt confideth in, in, or doth reſpect, are made Juſtices of the Quorum, ſo called from thoſe words in the Commiſſion, Quorum A.B. Unum eſſe volumus; which imports, that ſome buſineſs of more importance may not be tranſacted without the preſence or concurrence of one of them.
One of the principal Juſtices of the Peace and Quorum, is by the Lord Chancellor made Cuſtos Rotulorum; ſo called, becauſe he hath the cuſtody of the Rolls or Records of the Seſſions, and is to bring them to each Quarter-Seſſions.
208Every Quarter of the year theſe Juſtices meet at the Chief or Shire Town, where the Grand Inqueſt or Jury of the County is Summoned to appear, who upon Oath are to Inquire of all Traytors, Hereticks, Thieves, Murderers, Money Coiners, Riots, &c. Thoſe that appear to be guilty, are by the ſaid Juſtices committed to Priſon to be tryed at the next Aſſizes, when the Judges of Westminſter come their Circuits before-mentioned.
Every County being ſubdivided into Hundreds, ſo called at firſt either for containing one Hundred Houſes, or an Hundred bound to take Arms; or Wapentakes, (ſo called from touching a Weapon, as the manner at this day is in Sweden at their ſolemn Weddings, for their chief Witneſſes to lay all their Hands upon a Launce or Pike) every ſuch Wapentake, or Hundred, hath commonly a Bayliff, a very ancient Officer, but now of ſmall Authority: Alſo Officers called High-Conſtables, at Firſt ordained by the Statute of Wincheſter, 13 Ed. 1. for Conſervation of the Peace, and View of Armour; they diſperſe Warrants, and the Orders of Juſtices of the Peace, to each Petit Conſtable.
209There are alſo in every County Two Officers called Coroners, whoſe Office is to Inquire by a Jury of Neighbours, how and by whom any Perſon came by a Violent Death, and to enter the ſame upon Record, which is a Matter Criminal, and a Plea of the Crown, and thence they are called Crowners, or Coroners.
Theſe are choſen by the Freeholders of the County, by virtue of a Writ out of the Chancery, they were Anciently men of Eſtates, Birth, and Honour.
Every County hath alſo A Clerk of the Market, whoſe Office is to keep a Standard of all Weights and Meaſures exactly according with the King's Standard, and kept in the Exchequer; and to ſee that none other be uſed in the ſame County, to Seal all Weights and Meaſures made exactly by the Standard in his cuſtody, and to burn ſuch as are deficient.
And theſe Justices and Officers have every of their ſeveral and reſpective Courts within the County; of which we ſhall briefly ſay ſomewhat particularly, and Firſt of
BY Act of Parliament 1 E. 3. cap. 16. the King Wills, That for the better Keeping and Maintenance of the Peace, Good Men and Lawful be Aſſigned in every County to Keep the Peace. And thus began this Subordinate Government, for the Tranquility and Quiet of the Realm, which no part of the Chriſtian World can parallel: But referring the Reader to ſeveral Acts of Parliament, and Authors who have Treated of their Juriſdiction and Authority both in and out of Seſſions: We ſhall only make ſome ſhort and brief Remarks and Obſervations thereupon. As, Firſt,
He that is named in the Commiſmiſſion of the Peace under the Great Seal, is certainly a Justice of Peace; Such of theſe in whom the King more particularly confideth are called Juſtices of the Quorum.
Their Office and Duty is to be conſidered, that ſome Things cannot be done without Two Juſtices, and in ſome caſes One or Two muſt be of the Quorum; and when a Statute appointeth a thing to be done by Two Juſtices; if the Offence be againſt the Peace, one may grant a Warrant to211 bring the Offender before theſe Two Juſtices, or may take Bail for his Appearance at the next Seſſions; or he may bind him to the Good Behaviour, and ſo to appear at the next Seſſions, but he may not determine the Matter alone. And whatever one Juſtice may do, may ever be done by more.
And they may be puniſhed for their Neglect.
Any Juſtice may require any number of Men to aſſiſt him in his Duty, for apprehending all Felons, Murderers, and the like, and ſuch as are able muſt obey them, or they may be bound to the Good Behaviour, or Fined for their Diſobedience. But he cannot give Warrant to break open any mans Houſe, to Search for a Felon, or ſtolen Goods, upon a bare Surmiſe.
A Justice of Peace may do all that a Constable or Private perſon may do, touching Keeping the Peace by Common Law.
They are in the Room of the Ancient Conſervators of the Peace, and have the ſame power they had.
Where a Statute giveth a power in general of any Offence, and doth not mention where it is to be done, it cannot be done out of the Seſſions of the Peace; but if it give power to do a212 Special thing, it may be done out of any Seſſions.
They muſt act cautiouſly in Execuing the power given them by Acts of Parliament, and ſee that they ſtrictly purſue it; and therefore muſt obſerve the words of the Statutes, which are penned diverſly, and conſider if they are not Repealed.
The Juſtices have power in ſmall Offences, or Treſpaſſes, to appoint ſuch Recompence as he ſhall think fit; and if he judge him unable, or if he do not make, and pay ſuch Satisfaction, he may order him to be Whipp'd; and for the ſecond Offence he may order him to be bound to the Good Behaviour, or ſend him to the Houſe of Correction.
If the Offender be able, he muſt bear the Charge of himſelf, and thoſe who convey him to Priſon, or otherwiſe the Juſtice may give Warrant to levy it upon his Goods.
Any one Juſtice may compel a Man to take Crack'd-Money, and may determine all Defaults about Money, 19 H. 7.15. 17 E. 4.1. 6 W. 3.
There muſt be Two or more about dividing of a Wood, being appointed thereunto by the Seſſions upon the Lord's Complaint, 35 H. 8.7. 13 E.
213Any Juſtice of Peace may require ſuch as are between 15, and 60 years of Age, to be Sworn to Keep the Peace.
There muſt be Two Juſtices, one Quorum, to give the Sheriff, and his Bayliffs, and Deputies their Oaths, and this Exì officio without Commiſſion; otherwiſe of a Special Bayliff. See 27 Eliz. 12.
Recognizances muſt be Certified next Aſſizes, or Seſſions, 5 & 6 Ed. 6 25.
A Superſedeas out of Chancery is to be certified at the Seſſions, together with the Recognizance.
A Certiorari brought before the Day, will diſcharge the Recognizance; and this Writ of Certiorari comes from the Chancery.
If any Officer have a Warrant from a Juſtice of Peace, and ſhall have a Superſedeas from the Chancery, or Kings-Bench, or any Juſtice of Peace of the County, and yet urge the party to find Sureties, he may refuſe to give it, and if he arreſt him he ſhall have Falſe Impriſonment againſt him.
An Alias Capias, or Exigent awarded againſt one Indicted of Treſpaſs, or the like, upon Surety found in Chancery, may be ſtayed from thence, or the Sheriff commanded not to arreſt him; or if214 he be arreſted, to take Sureties and let him go. So, when he hath given Sureties.
Two Juſtices, Quorum unus (ſome ſay one Juſtice) may grant a Superſedeas.
The Certiorari to remove the Record is in it ſelf a Superſedeas, but a Man may have a Superſedeas to the Sheriff alſo.
Supplicavit is a Command out of Chancery, or Kings-Bench, to bind ſome one to the Peace, or Good Behaviour; concerning which Seven things are obſervable. Vide Shepherd's Juſtice 224.
Mittimus is the Warrant to ſend the Priſoner to Gaol, and it muſt be in Writing under Hand and Seal, unleſs it be by Order of Seſſions: The Cauſe muſt be expreſſed, otherwiſe it will not be the ſame Offence in him who ſuffers an Eſcape: If it be without Bail, or Mainprize, and yet the Cauſe expreſſed is Bailable, other Juſtices may Bail him.
The Conviction of Offenders by the Common Law is by Indictment and Jury; For Trial by Examination and Witneſſes, is not allowed but where it is at the Diſcretion of the Juſtices, or ſo directed by Statute.
Juſtices of Peace ought to be cautious; for they may be Puniſhed either215 in the Seſſions, or by Juſtices of Aſſize.
Their Reward is 4 s. per Diem for themſelves, and 2 s. per Diem for their Clerks, to be paid with their Charges in ſome Caſes out of Fines levied by the Sheriff, beſides ſeveral Fees, and other Allowances. Vide Shepherd's Juſtice. They ſhall not be puniſhed for Ignorance, &c.
The Seſſions is a Court where the Justices ſit for Execution of their Office; and there are Two kinds of Seſſions.
The General, or Quarter-Seſſions, for General Execution of their Commiſſion over all their Limits, and kept Quarterly, viz. In the firſt Week after Epiphany, The firſt Week after the Clauſe of Eaſter, The firſt Week after Tranſlation of St. Thomas the Martyr, being the 7th of July, And the firſt Week after St. Michael (or more often, if need be,) And in this Court the Juſtices are Judges, of whom there may not be leſs than Two, whereof one of the Quorum: And they ought to ſit at the moſt Principal and Chief Towns, and where it hath been uſually held. And all things done before them are of Record, againſt which no Averment lieth. And for their ſeveral Powers216 and Juriſdictions, beſides what is mentioned before, you may read the Statutes and Authors at large, who treat thereupon; To whom we refer, and paſs on to their Power in
The Special Seſſions, which is of Special uſe, for Ridding the Gaols, and other purpoſes; And herein they may take as much, and as little buſineſs upon them, as they pleaſe, and have (unleſs in ſome particular caſes) the ſame Power as in their Quarter-Seſſions. And this Special Seſſions may be kept at any place, and held at any time, and as long as the Juſtices think fit, and may be kept by One Juſtice, or more, who have like power in many caſes with the Juſtices in or out of their Quarter-Seſſions; of which you may read more in Authors at large.
And this Special Seſſions is alſo ſometimes called Statute Seſſions, It being enjoyned by ſeveral Statutes, that they with the Conſtables of every Hundred do meet, and that Maſters and Servants do appear, for deciding Differences, Rating Servant's Wages, and beſtowing of People are fit to Serve, and Refuſe, or cannot get Maſters in Service: And now a word or two of their manner of
217Proceeding, which in an ordinary way lieth in Three things: 1. Information, 2, Hearing and Tryal, 3. In giving Judgment and doing Execution.
By Information the Judges of theſe Courts take knowledge of Offences, either by preſentment of Publick Officers, as Stewards of Leets, Superviſors of High-ways, Conſtables, or the like: And theſe are not ſent to the Grand Jury to be found by them, but are a Perfect Information of themſelves, to which the party accuſed muſt anſwer. And the Information given by the Jury, is Two ways, either by Indictment or, Preſentment; and the Juſtices are to receive in this ſuch Indictments they ought but none other; and they muſt ex officio ſee they are well drawn.
A Juſtice may preſent Defaults, as of High-ways, &c. upon his own View-And any Man may Inform againſt Offenders without danger: But theſe Common Informers muſt be allowed of Record, and if once turned out, are never again to be admitted; and muſt proſecute within the time limited by the Statute of 31 Eliz. and muſt bring his Informations in the ſame County, and to theſe ends muſt be ſworn, 21 Jac. 1.4. And now we proceed to
218Hearing and Tryal, in which are included the Calling the party, his Appearance and Defence. The Proceſs for Calling the party upon Indictments for Treaſon, or Felony, is 1. Capias, 2. Alias Capias, 3. Exigi facias. If for Indictments of Leſſer offences, a Venire facias, and if Sufficient then Diſtringas, and Proceſs Infinite. But if Nihil habet be Returned, then Capias, Alias, Pluries, and Exigi facias.
The Proceſs upon any Indictment, or Preſentment for an Offence againſt a Statute, ſhall be ſuch as the Statute ſhall direct; otherwiſe, the Ordinary Proceſs of the Common Law. There are other Proceſſes, as Freri Facias, and Capias after Judgment, for doing Execution, 5 amp; 6 Ed. 6.14. and in ſome caſes Elegit. See 31 Eliz. 7.
But touching Proceſs Three things muſt be obſerved; 1. That no Proceſs Iſſue but upon Inquiſition of Twelve Men, or Return of a Sworn Officer, ſome Special Caſes excepted; 2. They are not granted upon Suggeſtion by Word, or Writing; 3. Nor may Proceſs Iſſue, but Sedente Curia; And ſometimes the party comes in by
Recognizances, which are to be Certiſied to the next Seſſions after they are taken, when and where the Appearance219 of the party, or his Default of Appearance is Recorded and Certified. And Bail is to be taken Quando ſtat indifferenter, but not otherwiſe.
The Juſtices cannot Award Proceſs upon Recognizance forfeited, but muſt certifie the ſame, and the cauſe of Forfeiture into ſome of the Courts of Record at Westminster, That Proceſs may Iſſue from thence.
Superſedew from above, muſt be brought by the party at the Seſſions, for if he ſend, it will ſcarcely be allowed.
If one be bound to appear at the Quarter Seſſions, he muſt appear there, If at the Seſſions; he may appear at any Seſſions, Dalt. J.P. 237.
Certiorari coming before the day to remove the Recognizance into the Chancery, or Kings Bench, will diſcharge the appearance, Dalt. J. P. 237.
After Appearance the Party muſt either confeſs, and ſubmit to the Fine, or Traverſe the Charge, and if ſo he muſt be bound to Proſecute it, unleſs it be Tryed preſently, which muſt be by Pety-Jury. And this is called an
Arraignment or Tryal, and if they paſs for the King, And find him guilty of the offence, or he confeſs it, or ſtand out an Utlary, ſo that it come to a
220Conviction, Then are the Juſtices to give Judgment, and ſee Execution done according to Law, In which they muſt obſerve theſe Rules. Firſt, In giving
Judgment, They muſt adjudge Men according to Law, For where the Law appointeth a Corporal, they may not inflict a Pecuniary Puniſhment, Et ſic è converſo. Neither may the change the Degree of Puniſhment: They have power to inflict Corporal Puniſhments, as Death, cutting of the Parts of the Body, Burning or Marking, Impriſoning, Whipping, Stocking or Cucking Stool, and Pecuniary Puniſhments, as loſs of Offices, Lands or Goods, Fines or Iſſues, Amerciaments: In fame, as to Brand a Man that is Perjured, that his Teſtimony afterwards ſhall be of no Credit; They may not ſet a Fine, or Amerciament but Sedente Curia, and all Fines muſt be reaſonable, Where the Stature appoints a Penalty, no other can be impoſed, neither may the Juſtices mitigate it after the Party is Convicted by Confeſſion, or otherwiſe; But if the Party Indicted before his Conviction come into Court, and Proteſt his Innocency; yet Quia noluit placitare, &c. he putteth himeſelf to the grace of the Court, the Juſtices may,221 and do uſually Impoſe a Moderate Fine, and by Order forbear the proſecution. Other Judgments being rarely or more ſeldom given, or Executed by Order of theſe Courts, or the Seſſions; But the Pillory, Whipping, or Fine, The Execution of the two firſt being commonly known, we ſhall only ſpeake of The
Fine which, if it be at Common Law, hath Impriſonment incident, till it be paid, yet in ſuch Caſe the Juſtices, may take a Recognizance for Payment of it, and deliver the Party out of Priſon, or they may cauſe the Clerk of the Peace to Eſtreat all Fines, and Amerciaments, by Indenture into the Exchequer, for the Sheriff to levy, and they are to keep one part of the Indenture themſelves. Thus having giving a Short view of the Juriſdictions, and Proceedings of theſe Juſtices in their Seſſions, I refer all other Matters concerning them, and their Authority to the Authors, who have written largely upon that Subject.
THis Court is raiſed by the Statute of 2 Hen. 5. And is a Court only of Inquiry touching the Execution of the Statute of 13 Hen. 4 cap. 7. concerning Riots, Routs, and unlawful Aſſemblies, And they are to certifie their Inqueſts incontinently into the Chancery, As by the ſaid Statute more at large appeareth, See 19 Hen. 7. cap. 13.
THe King every Michaelmas Term, upon nominating ſix by the Juſtices Itinerant, Three whereof are Struck out by the Lord Chancellor, Treaſurer and Judges, out of the remaining three; about Craſtino Animarum yearly pricks one fit perſon for Sheriff of each County, (except for Weſtmoreland and Durham) which are Hereditary, who is to Execute the Kings Mandates, and all Writs directed to him out of the Kings Courts, Impannel Juries, bring Cauſes and Criminals to Tryal, and to ſee Sentences both in Civil and Criminal Affairs Exectuted, To attend, and Guard the223 Itinerant Judges twice a year while in their County, with great Pomp, and Feaſting at the Aſſizes, and hath attendant on him his Under-ſheriff, Clerks, Stewards of Courts, Bailiffs of Hundreds, Conſtables, Gaolers, Serjeants, and Beadles, with a Train of Servants on Horſeback in rich Liveries, at the Reception of the Judges. He Collects all publick Profits, Fines, &c. of the County. And for Exerciſing his Judicial Power hath theſe Courts.
THe Tourn called anciently Shiregmote, Is a Court of Record holden before the Sheriff, The ancient Inſtitution whereof by King Alfred was before Magna Charta, To hear and determine all Felonies (Death of Man excepted) and Common Nuſances. See the Charter of William the Conqueror: Magna Charta and Expoſition thereupon, the ſecond part of Coke's Inſtitutes, and Coke's 4 Inſtitutes, cap. 53.
The Stile of this Court is, Curia Viſus Franc 'pleg' Domini Regis apud B. coram Vicecomite in Turno ſuo; And ſeems to have its Denomination from the French Tour (i. e.) Ambitus, circuitus, And is as much to ſay as, The224 Sheriffs Courſe, or Perambulation; For which and the Articles Inquirable there, See Greenwoods Juriſdiction of County, Courts, and other Authors at large, and Coke's 4 Inſtitutes cap. 53. And this Court is ſaid to be Schola Inſigniendi Juvenes, A School to Inſtruct young Men in the ancient Laws of the Kingdom.
THis is a Court of Record, at the firſt derived and taken out at the Tourn, becauſe the people did undergo great trouble in travelling to the Sheriffs Tourn; Leets, or Views of Frankpledge were granted to Lords of Manors, within certain Precincts; yet this Court in whoſe Manor ſoever it is kept, is ſtill accompted the Kings Court, becauſe the Authority is Originally apertaining to the Crown, and thence derived to inferior perſons, And whoſoever hath the Leet, hath the ſame Authority within the Precinct, as the Sheriff hath within the Tourn. And Lep or Leet is a Saxon word from the Verb Zelepian, (z) being added Euphoniae gratia, i. e. Convenire to aſſemble together, unde Conveutus.
225And the Stile of this Court is, Curia Viſus Franc 'pleg' tent 'apud B. coram A.B. Seneſchallo.
This Court of the Leet, as likewiſe the Tourn, are Inſtituted for the Common Weal; As for Conſervation of the Kings Peace, Puniſhment of Common Nuſance, as for ſelling Corrupt Wines, and Victuals, &c. And by divers Acts of Parliament, the Juriſdiction of this Court hath been increaſed, to the end the Subject might have remedy, and Juſtice at his own Door. And therefore the Steward ought to be knowing in the Law, for Ignorantia Judicis, eſt calamitas Innocent is: Of the Antiquity and Juriſdiction of this Court which is very ample, you may Read more at large, Coke's 2 Inſtitutes, Magna Charta, cap. 17.35. & 4 Institutes cap. 54,
There are Three things to be conſidered in holding of Tourns, or Leets.
1ſt, Time which muſt be twice in a year, viz. within one Month after Easter, and one Month after Michaelmas, at the Tourn after Earſt, No Actions Popular are to be inquired after, &c But only to take their Suit who are Suitors, which at the Sheriffs Tourn are all Men from 12 to 60 years of age within the County, (Eccleſiaſtical Perſons, Peers,226 and Women excepted) and at the Leet the like Perſons within the Precinct, which is called Suit Real, by Reaſon of their Allegiance to which they are Sworn to be true, and Loyal to the King; and to take the view, &c. And at the Tourn, or Leet after Michaelmas, then to inquire of ſuch things which are inquirable there.
2ly, The place where the Leet is to be holden, and that muſt be within the Precinct, or Liberty in Loco debito, & coſueto, and if it be done otherwiſe, whatever is acted in it is void.
3ly, The Perſons who are all Freeholders within the Precinct, or Liberty, and are obliged to come by the Service of their Fees, and all others of fit age, except the perſons above mentioned to be excepted.
The Sheriff in the Tourn, or Steward in the Leet, as Judge hath a double Authority: 1. Election of Officers: 2. Puniſhment of Offenders, And this Puniſhment of Offenders is in a twofold manner, and in it are to be reſpected. 1. Actus Curiae for Punition of Offences in Curia, where the Sheriff, or Steward as Judge, may puniſh by Fine; without Inquiry by the Country, &c. As if a Juror ſworn refuſe to make Preſentment,227 depart without giving his Verdict, or refuſe to be Sworn, the Steward may impoſe a reaſonable Fine upon him: 2. Actus Patriae for Puniſhment of Offences Extra Curiam, where the Jurors who are ſworn have peculiar Cognizance, and have Authority to Preſent and to Aſſeſs Amerciaments, for them.
And the Sheriff, or Steward by the Statute of 18 Ed. 1. may Inquire of ſeveral Miſdemeanors from the higheſt Treaſon, to the loweſt Treſpaſs, tho' not here puniſhable; He may alſo Impannel a Second Jury, to Enquire of the Defaults and Concealments of the Firſt, and ſo Fine them for their offence. And for default of Reſiants, he may compel a Stranger coming within the view, to be of the Inqueſt. And the Officers he hath Election of are.
The Bailiff, who is to Collect the Rents, and Profits of the Manor, or Liberty, and Give a true accompt thereof, and to execute all the Precepts of the Court.
The Conſtables who are choſen, and are to ſee the publick peace kept, Watch and Ward obſerved; Learn the Contents of the Statute of Wincheſter made againſt Rogues, &c. And to puniſh ſuch as play at unlawful Games.
THe Stile of this Court is, Bucks Curia prima Comitatus E.C. Militis, Vicecomiti Com. praedict ', Tent' apud B. &c.
And the next Court is Curia ſecunda E. C. &c. And ſoforth of the reſt.
Of the Juriſdiction and Authority of this Court you may Read in the Statute of Magna Charta cap. 35. The Suitors are Judges, except in a Rediſſeis in the Sheriff is Judge, and a Writ of Errour lieth upon his Judgment; And being no Court of Record, It holdeth no Plea of any Debt, or Damages to the value of Forty ſhillings or above, Nor of any Treſpaſs Vi & armis, becauſe a Fine was due thereby to the King; But of Debt, Detinue, Treſpaſs, and other Actions perſonal above Forty ſhillings, The Sheriff may hold Plea by force of a Writ of Justicies, for that is in nature of a Commiſſion to him, and is Vicountiel and not returnable; And the Sheriff may before any County Court, award a Summons to his Bailiff, returnable within two or three days at his Diſcretion, to Summon the Defendant by his Goods, &c. to anſwer, and if the Bailiff return Nihil,229 and the Plaintiff remove the ſame by a Pone, into the Common-Pleas, that Court ſhall not grant a Capias, for the nature of the Writ doth not warrant a Capias, and the Sheriff could not grant the ſame, neither doth the Writ of Juſticies alter the nature of the Court of the County, for therein the Sheriff is not Judge, but the Suitors; and upon a Judgment given therein, a Writ of Falſe Judgment doth lie, and not a Writ of Errour. And in divers Real Actions a Writ of Juſticies doth lie, as in Breve de Admeaſurement of Dower, of Paſture, De Nuſance, &c. As by our Books may appear. And Pleas ought not to be hence removed (without cauſe,) as appears by the Writs of Pone, Recordare, The Writ of Falſe Judgment, Accedas ad Curiam, which are yet in uſe.
In this Court upon the Exigent after Quint 'Exact', The Coroners give Judgment, Ideo Utlagetur per Judicium Coronatoris; But by this Judgment No Goods are forfeited before the Outlary appear of Record, and that is the Reaſon, that no Man can Claim the Goods of Outlaws by Preſcription, neither ſhall ſuch an Outlawry diſable the party till the Exigent be returned.
230This Court is holden at any place within the County, except in Northumberland, Suſſex and Cheſter, where it is limited to be held at certain places by Statute; And is to be holden once every Month, counting 28 days to the Month.
No Fine can here be inpoſed, becauſe it is no Court of Record: But a Man may be there amercied for Contempt, or Diſturbance of the Court, In the preſence of the Court.
And in this Court are theſe Officers.
The Sheriff who is Elected yearly, Craſtino Animarum by the Statute of 9 E. 2. and 14 E. 3. cap. 7. And his Letters Patents bear date commonly the ſixth of Novemb. unleſs in caſe of neceſſity: And before the next County day after his Election, and Diſcharge of the old Sheriff, he ought to depute.
A County Clerk, who according to Fleta ought to be Endued with Circumſpection, Fidelity, Providence, Humility, Peace, and Modeſty, Expert in the Laws and Cuſtoms of his Country, and of ability to direct the Bailiffs, and other Miniſters in Dubious Things. He may not Practiſe as an Attorney at the ſame time, nor Act without conſent of Suitors; he muſt Depute honeſt able231 Bailiſſs to Execute the Proceſs, and Precepts of the Court, and after Plaints entred (which muſt be in full County Sedente Curia, Except in caſe of Replevins) he muſt Iſſue ſufficient Precepts directed to his Bailiff to Attach, or Warn the Defendants to appear at next County Court, and at the Adjournment of every Court, muſt appoint a day certain for the next Court; To the intent the Country may know when to Reſort thither, to hear the King's Exigents, and Proclamations read.
The Coroner is a Principal Officer, being choſen in this Court by a Writ De Coronatore eligendo directed to the Sheriff, whereupon he is choſen by the Freeholders, or Suitors in full Court, and is there publiſhed; and afterwards his Election certified into the Chancery by the Sheriff, and the County Clerk Adminiſters to him an Oath for due Execution of his Office: then he Sits there with the Sheriff every County Court, where Exigents and Proclamamations being proclaimed five County days, Once in open Seſſions, and once at the Church Door, If at the fifth County day the Defendant appear not, the Coroner gives Judgment, That he be out of the King's Protection, and232 out of the Aid of the Law. A Man being then ſaid to be Outlawed as it were Extra Legem poſitus, becauſe he is ſuppoſed to be once Sworn to the Law; But a Woman is ſaid to be waved, (Waviatur) becauſe ſhe was never Sworn to the Law.
The Attorneys may do all things in the Name, and as the Act of him who gave them the Authority, as if he did it himſelf, For he is Aliorum Negotiorum Geſtor, and Qui per alium facit, per ſeipſum facere videtur. And theſe ought to be honeſt, and juſt, according to their Oath. And ought not to delay their Clients, (Argenti gratia) not demand Moneys otherwiſe than is allowed them by the Court.
The Bailiffs are Servants and Miniſters of the Law, and by Conſequence to the party at whoſe Suit he is to diſtrain, And therefore ought to be True, Vigilant, and not exoculated with Bribes; Ought to be contented with the Fees allowed, for if they Extort more, or commit any Error contrary to their Precept, they forfeit Forty ſhillings, by the Stature of 27 Eliz. No Bailiff, or other Perſon, ought to take a Diſtreſs or Execute Proceſs, till he be Sworn, but now Experience ſhews the Contrary. King Alfred hanged Judge233 Arnold for ſaving a Bailiff from Death, who had robbed the People by Diſtreſs, and for Extorting of Fees.
AS the Leet was derived for the Eaſe of the People out of the Tourn; So this Court of the Hundred for the ſame cauſe was derived out of the Court of the County; And is (in nature) a Court Baron, where the Suitors are Judges, and is no Court of Record.
The Stile of this Court is, Curia E. C. Milit is Hundredi ſui de B. in Com' Bucks, Tent ', &c. coram A. B. Senceſchallo ibidem.
Officers Incident to this Court, are chiefly the Conſtables of the Hundred commonly called,
The Chief Conſtables, ſo named, becauſe the Conſtables of Towns are called Petit Conſtables; The Conſtables of the Hundred are Created by the Statute of Wincheſter 13 E. 1. And their Authority thereby limitted to five things: 1st, To make view of Armour: 2ly, To preſent before Juſtices Aſſigned all ſuch Defaults, they ſee in the Country about Armour: 3ly, Defaults of Suits of Towns: 4ly, Of High-ways: 5ly, To234 preſent ſuch as lodge Strangers in uplandiſh Towns, for whom they will not Anſwer.
And theſe diſperſe all Warrants of the Juſtices of Peace to the Petit Conſtable; and divers other Authorities are given to them, and the Petit Conſtables by Acts of Parliament, which they muſt ſtrictly obſerve; For that no Officer conſtituted by Act of Parliament, may Preſcribe as the Officer by the Common Law may.
Term. 2 Car. Regis, Forteſcu of Bucks Plaintiff, and the Sheriff of the ſame Defendant, The Plaintiff had divers Hundreds granted to him for Life, Reſerving a Rent which the Sheriff diſallowed, and put in Bailiffs of his own; And the Attorney General was commanded to avoid the like in other Counties, for that they were againſt Law, and belonged to the Office of the Sheriff.
And this diviſion of Counties into Hundreds is very Ancient, and thought to be ſo called at firſt, either for containing an Hundred Houſes, or an Hundred Men bound to bear Arms, and hath (commonly a Bailiff an Ancient Officer, but now of ſmall Authority, And if there be a Bailiff of a Liberty, Or a Sheriff's Bailiff of a Hundred235 Wapentake, or Tything, which hath not Lands or Tenements ſufficient within the County, there lieth a Writ De Ballivo Amovendo, by the Statute of 4. E. 3. cap. 9.
THe Stile of this Court is, Curia Baronis A. B. Militis Manerij ſui praedicti, (having the name of the Manor written in the Margent) Tent 'tali die, &c. coram C.D. Seneſchallo ibidem; And being calle Barons Court is the ſame as to ſay, Freeholders Court.
This Court is incident to every Manor, and is of Two natures: The Firſt by the Common Law, and the Suitors thereof are Judges, although the Plea be holden by force of a Writ of Right, and this is called a Court Baron, and may be holden from Three Weeks, to Three Weeks: The Second is a Cuſtomary Court, and that doth concern Copyholderss, And therein the Lord or his Steward is Judge.
And for as much as the Title, or Eſtate of the Copyholder is entred in the Roll, whereof the Steward delivereth him a Copy, he is therefore called Copyholder.
236And as there can be no Court Baron without Freeholders, So no Cuſtomary Court without Copyholders; And a•there may be a Court Baron of Freeholders only, and then the Steward is Regiſter; So their may be a Cuſtomary Court of Copyholders only, and then is the Lord or his Steward Judge.
And when the Court Baron is of this Double Nature, The Court Roll containeth matters appertaining to the Court Baron, as alſo to the Cuſtomary Court.
For the Antiquity f this Court, it is to be obſerved, That by the Laws and Ordinances of King Alfred, and others, It appeareth, That the Firſt Kings of this Realm, had all the Lands of England in Demeſne; And Les grand Mannors, and Royalties they Reſerved to themſelves, and of the Remnant, they (for the Defence of the Realm) Enfeoffed the Barons, (under which Name are compriſed all the Nobility,) with the like Juriſdiction the Court Baron now hath.
And this Court was firſt Inſtituted for the eaſe of the Tenants, and for the ending of Suits for Debts and Damages under Forty ſhillings: And this Court may be held at any place within the Manor, unleſs a Lord who237 hath Two or Three Manors, hath uſually kept at one of them Courts for all the ſaid Manors.
For the Cuſtoms, and manner of Proceeding in this Court, you may Read more at large in Coke's 1 Inſt. ſect. 73. Greenwood of Courts, Shepheard's, Courtkeepers guide, &c.
THe Coroner Coronator, is ſo called, becauſe he deals principally with Pleas of the Crown, Or Matters concerning the Crown; And as appears by the Writ De Coronatore Eligendo, he is Eligible by the Freeholders of the County, and after he is Elected, the Sheriff gives unto him his Oath duly to Execute his Office; and being thus Eligible (as the Sheriff and Conſervators of the Peace were in ancient Times,) they continue notwithſtanding the Demiſe of the King. And of theſe are Fout in every County; But in the Twelve Shires of Wales, and Cheſhire are but Two, and ſometimes Six in a County, and ſometimes but one.
The Court which he holdeth is a Court of Record, And as the Sheriff in his Tourn may Inquire of all Felonies by the Common Law, except the238 Death of Man; So the Coroner can Inquire of no Felony but the Death of Man, and that ſuper viſum Corporis; He may alſo Inquire of the Eſcape of the Murderer, of Treaſure Trove, Deodands, and Wrecks of the Sea.
Beſides his Judicial place, he hath alſo Authority Miniſterial as Sheriff, &c. When there is juſt Exception ▪ to the Sheriff, Judicial Proceſs ſhall be awarded to the Coroner for the Execution of the King's Writs; in which caſe he is Locum tenens Vicecomitis, and in ſome eſpecial Caſe the King's Original Writ ſhall be directed to him.
In ancient time none might have this Office but a Knight, and he muſt have ſufficient Lands within the County, whereof he may anſwer all People: But more concerning this matter you may ſee in Coke's 4 Inſtitutes cap. 59.
And beſides theſe General Coroners of Counties, there are Special Coroners of Liberties, and Priviledged Places, who have the like Juriſdiction, and Power within thoſe Places, as the other have in the County, Vide Stat. de Coronatoribus, 3 and 4. E. 1.
239When any perſon hath Murdered himſelf, or is Felo de ſe, The Coroner goeth to view the Body, and maketh out his Warrant to the Bailiffs of the Liberty to Summon a Jury, And further.
For the manner and method of keeping this Court; See Greenwood of Courts, and others who treat thereupon.
THis Office is in the Gift of the Lord Treaſurer, who grants it by Deed, and he is to continue in his Office but one year, or Once in Three years, and are One in every County.
And this name Eſcheator cometh from the word Eſcheata, a word of Art derived from the French word Eſchear (i. e. ) excidere or accidere to happen, and ſignifies properly when the Lands by accident Fall to the Lord of whom they are Holden; And then we ſay the Fee is Eſcheated.
And this Eſcheat happeneth Aut per defectum Sanguinis, For the default of Heir, Aut per delictum Tenentis, for Felony, and by Judgment Three ways,240 Aut quia ſuſpendatur per Collum, Quia abjuravit Regnum, Aut quia utlagatus eſt, And therefore ſuch as are Hang'd by Martial Law in furore Belli, forfeit no Lands.
He ought to be ſeiſed of Forty Marks Land, Except in Cities, and Counties Palatine.
In caſe of Treaſon or Felony he may find an Office Virtute Officij.
If he ſit by force of a Writ, he ought to take the Inqueſt within a Month after he deliver the Writ, and he ought to Return the ſame within a Month after he taketh it either by Writ, or Virtute Officij.
All Offices found before him, or Commiſſioners ought to be by Oaths of Twelve Men, every Juror to have Lands of the yearly value of Forty ſhillings in the ſame County, and ought to be Indented, and one part Sealed by them, and the other by him, which is to remain with the Foreman of the Jury, and they to be taken in good Towns, &c.
He or the Commiſſioners, can take no Inqueſt of any, but ſuch are Returned by the Sheriff.
241If he or the Commiſſioners, deny any Perſon to give Evidence to any Inqueſt taken before him, he ſhall forfeit Forty pounds. If he or they refuſe to take a Verdict of the Inqueſt they forfeit One hundred pounds to the Party grieved.
An Office found before Commiſſioners is as forcible, as if it had been found before the Eſcheator himſelf.
The Eſcheator ought to take no Fee but of the King: But if he find an Office by Writ for the King, he ſhall have a Fee of Forty ſhillings by the Statute of 23 Hen. 6. But if ſuch Lands exceed not in value Five pounds, then he ſhall take but Fifteen ſhillings: And if it be found that Lands are holden of a Subject, he ought to take no Fee at all.
And the Eſcheators may make Deputies that are able, For all which ſee more in the Statute de Eſcheatoribus 29 E. 1. Coke's 4 Inſtitutes cap. 43. &c.
THe Clerk of the Market is to this day called Clericus Mercati Hoſpitij Regis: And keepeth a Court, and Inquireth after Weights, and Meaſures whether they be according to the242 King's Standard, and for that Purpoſe he maketh Proceſs to Sheriffs, and Bailiffs to Return Pannels before him, &c. And he is to deliver Eſtreats of ſuch things as concern his Office into the Exchequer.
He can hold no Plea, but what was holden in the Reign of E. 1. and at this day there is not ſo much occaſion for him, or his Authority ſince Juſtices of Aſſize, Juſtices of Oyer and Terminer, Juſtices of Peace, and Sheriffs in their Tourns, and Lords in their Leets, may Inquire of Falſe Weights, and Meaſures.
Of Wine, Ale, Beer, Corn and Grain there ought to be but One Meaſure, and of all other Merchandize, per totum Regnum, De Ponderib 'vero, ſicut de Menſuris.
But notwithſtanding divers Statutes, there are two kinds of weights uſed in this Kingdom, one called Troy weight commanded by the Statute, And is thus deduced, 24 Corns of Barley dry, and from the midſt of the Ear make a peny we•ght, 20 peny weights an Ounce, and 12 Ounces a pound Troy, a Grain contains 20 Minutes, a Minute contains 24 Droits, a Droit contains 24 Blanks, Twelve Grians of Fine Gold make a Caract, 24 Caractes an Ounce, and 12243 Ounces a pound. By this Troy weight are meaſured according to Law, Pearls, Precious Stones, Gold, Silver, Bread, Wheat and ſuch like.
And this kind of Weight the Apothecaires do or ought to uſe, although by other Diviſions, and Denominations, Their leaſt Meaſure is a Grain,
Another called Avoir du Pois, A Pound of this conſiſteth of 16 Ounces, Every Ounce of 20 Peny weight, Every Peny weight 21 Grains and 9 / 10 of a Grain; It is called Avoir du Pois, becauſe thereby they have full Meaſure; By this are weighed all Phyſical Drugs, Wax, Pitch, Tarr, Iron, Steel, Lead, Hemp, Flax, Fleſh, Butter, Cheeſe, and divers other Commodities, and eſpecially every Commodity ſubject to Waſt; And thereof an 112 Pounds are called an Hundred weight.
There was another weight called Auncel weight, by Scales fixed to a Beam or Staff, and by the Hand or Forefinger, wherein was much Deceipt, and therefore aboliſhed by ſeveral Statute.
Meaſures of Troy, are of Three kinds, viz. Of Things that are Dry,244 Of Things Moiſt or Liquors, and Of Longitude, Latitude, and Profundity.
Of Dry things 4 Grains make a Peny weight, 20 Peny weight an Ounce, 12 Ounces a Pound or Pint, 2 Pints a Quart, 2 Quarts a Pottle, 2 Pottles a Gallon, 2 Gallons a Peck, 4 Pecks a Buſhel, 4 Buſhels makes a Comb, 2 Combs a Quarter, 6 Quarters make a Weigh, and 10 Quarters a Laſt.
Of Liquors 12 Ounces make a Pint or Pound, and 2 Pints a Quart, and 4 Quarts a Gallon of Wine, which is 8 Pounds Troy weight, 18 Gallons make a Rundlet, 31 Gallons and a Half make Half a Hogſhed, 42 Gallons make a Tierce, 63 Gallons a Hogſhead, 84 Gallons a Puncheon, 126 Gallons a Pipe, or Butt, and 252 Gallons make a Tun of Wine: Of Ale and Beer 8 Gallons is a Firkin, 16 Gallons is a Kilderkin, 32 Gallons is a Barrel, 63 Gallons is a Hogſhead.
The Wine Meaſure is ſmaller, than the Ale and Beer Meaſure, and holds Proportion as 4 to 5, So that 4 Gallons of Beer, are 5 Gallons of Wine; And the Meaſure of Dry things is greater than the Wine, and leſſer than the Ale and Beer Meaſure, ſo that the Gallon of this Meaſure being about 8 Pou••s Troy weight, is in proportion245 to the Wine Gallon as 33 to 28, and is in Proportion to the Beer Gallon, as 33 to 35.
Of Longitude, Latitude, and Profundity 3 Grains of Barley make an Inch, 4 Inches make a Handful, 3 Handful make a Foot, 1 Foot and ½ make a Cubit, 2 Cubits a Yard, 1 Yard and ¼ an Ell, 5 Foot a Geometrical Pace, 6 Foot a Fathom, 16 Foot and ½ make a Perch, Pole, or Rod, 40 Perch make a Furlong, 8 Furlongs make a Mile, which according to the Statute of 11 Hen. 7. ought to be 1760 Yards, or 5280 Foot; That is 280 Foot more than the Italian Mile; 60 Miles, or more exactly 69 Engliſh Miles and ½, make a Degree, and 360 Degrees, Or, 25020 Miles, Compaſs the whole Globe of the Earth.
For Meaſuring of Land, 40 Perch in Length, and 4 in Breadth, make an Acre, ſo called from the German Acker, and that from the Latin Ager, 30 Acres ordinarily make a yard Land, and 100 Acres are accounted an Hide of Land.
By the Stat. of 7 Hen. 7. The Chief Officer of ever City, and Burrough ſhall take for Sealing of every Buſhel a peny, of every other meaſure a Half peny, of every Hundred weight a peny, and every Half hundred weight a Half peny, of leſſer weight a Farthing.
246The Clerk of the Market ought not to take any Common Fine, nor to Claim any thing for Examining or Viewing of Meaſures Sealed, or other Meaſures: Of which ſee more in the Statute, and Coke's 4 Inſt. cap. 61.
THis Court is incident to every Fair, and Market, as a Court Baron is to a Manor; and is ſo called for that Juſtice for advancement of Trade is as Speedy as the Duſt may fall from a Man's Feet, Their Proceedings being De hora in horam.
And this is a Court of Record, to be holden before the Steward of the Court, and the Juriſdiction thereof conſiſteth in Four Concluſions. 1ſt, The contract or cauſe of Action muſt be in the ſame time of the Fair or Market. 2ly, It muſt be for ſome matter concerning the ſame Fair, or Market complain'd on, heard and determined. 3ly, It muſt be within the Precinct of the Fair, or Market. 4ly, The Plaintiff muſt take an Oath according to the Statute of 17 Ed. 4. cap. 2. 247But that concludeth not the Defendant.
And there may be a Court of Pipowders by Cuſtom, without a Fair or Market, and a Market without an Owner; And this Court of Pipowders by Preſcription may be extended to all Contracts, Bonds, Actions of Treſpaſs, and upon the caſe, and no Writ of Faux Judgment; but a Writ of Error lies here, and in the Ordinary Court of Pipowders incident to a Fair or Market: And this Court by Preſcription may be uſed either by way of Grant, or Confirmation. For all which ſee in Coke's 4 Inſtitutes, and Greenwood of Courts.
KIng Ed. the 3. in full Parliament Ann. 50. E. 3. Erected the County of Lancaſtar a County Palatine by Letters Patent, and Honoured his Son J. Duke of Lancaſter therewith for Term of his Life.
It is called Comitatus Palatinus a County Palatine, à Comitatu, & Palatio Regis, becauſe the Owner be he Duke, or Earl, &c. Hath in that County Jura Regalia, as fully as the King had in his Palace; And he may have his248 Chancery, and Writs under his Seal, for the Office of the Chancellor to Depute Juſtices, as well touching Pleas of the Crown, as all other Pleas, and Execution of Writs, and making Officers, and Servants, and all other, as by the Letters Patents above mentioned, granted in Parliament appears: And the King may Erect a County Palatine without Parliament by his Letters Patents; But now by the Statute of 27 H. 8. cap. 24. ſeveral of thoſe Jura Regalia are taken from them, and recontinued, and annexed to the Crown: And all Writs are now to be made in the King's Name, but the Teſte in Name of him who hath the County Palatine; And they ſhall have Forfeiture of Lands, and Goods for High-Treaſon, which Forfeiture accreweth by the Common Law; But Forfeitures given after the Erection of the County Palatine by an Act of Parliament, they ſhall not have.
Juſtices of Aſſize, of Gaol-Delivery, and of the Peace are, and ever ſince the Erection have been Aſſigned by Commiſſion under the Seal of the County Palatine of Lancaſter.
249Fines were levied with 3 Proclamations, &c. before the Juſtices of Aſſize there, or one of them, and all Recoveries to be had of Lands there, are to be had in the Court of the County Palatine at Lancaster, and not at Weſtminſter.
All Lands, &c. Parcel of this Dutchy given to the King by the Statute of Monaſteries, Chantries, &c. are ſtill within the Survey of the Dutchy.
Lands within the County Palatine ſhould paſs by the Dukes Charter without Livery of Seiſin, or Attornment, But of Lands parcel of a Manor annexed to the Dutchy without the County Palatine, there ought to be Livery of Seiſin, and Attornment of Tenants, and in the ſame Degree is it in the King's Caſe.
The Proceedings in this Court of the Dutchy Chamber at Westminſter, is as in a Court of Chancery for Lands, and other Matters within the Juriſdiction of the Court by Engliſh Bill, &c. and Decree. But this Chancery is not a mixt Court, as the Chancery of England is, partly of the Common Law, and partly of Equity, but admitting only ſome ſmall mixture of the Common Law in ſome Caſes: And in ſome Caſes they are led by their proper250 Cuſtoms, and Preſcriptions reſpectively.
The Proceſs of this Court is by Privy Seal, Attachment, and Commiſſion of Rebellion as in the Chancery.
The Officers of this Court be the Chancellor, The Attorney, The Receiver General, Clerk of the Court, The Auditors, Surveyors, The Meſſenger.
There is an Attorney of the Dutchy in Chancery, and another in the Exchequer; And there are Four Learned in the Law, Aſſiſtants, and of Councel with the Court.
The Seal of the Dutchy of Lancaster remains with the Chancellor at Weſtminſter, And the Seal of the County Palatine remains in a Cheſt in the County Palatine, under the ſafe Cuſtody of the Keeper thereof.
All Grants and Leaſes of Lands, Offices, &c. in the County Palatine of Lancaſter, ſhall paſs under that Seal, and no other: And all thoſe out of the County Palatine, and within the Survey of the Dutchy, under the Seal of the Dutchy, See the Statute of 27 Hen. 8. cap. 24.
For the great Royalties, Priviledges, &c. the Duke of Lancaster had, for him, his Men and Tenants, which are neceſſary to be known by all concerned251 in thoſe Poſſeſſions, and other matters concerning the ſame: See Coke's 4 Inſtitutes 36. and Books and Records their recited: And the Statute of 16 and 17 Car. 1. c. 10. For diſſolving the Court of Star-Chamber, and annulling and making void the like Juriſdiction excerciſed in the Court, called the Court of the Dutchy of Lancaſter, held before the Chancellor and Councel of that Court, &c.
THis is the moſt Ancicent, and moſt Honourable County Palatine remaining at this Day, with which Dignity the King's Eldeſt Son hath been of long time honoured; And this is a County Palatine by Preſcription.
Within this County Palatine, and the County of the City of Chester, there is and aciently hath been a principal Officer called the Chamberlain of Cheſter; who time out of mind, hath had the Juriſdiction of a Chancellor; and the Court of Exchequer at Cheſter is, and hath (time out of mind) been the Chancery Court for the ſaid County Palatine, whereof the Chamberlain of Cheſter is Judge in Equity; He is alſo Judge of Matters at the Common Law252 within the ſaid County, as in the Court of Chancery at Weſtminſter, for the Court of Chancery is a mixt Court.
There is alſo a Vice-Chamberlain, which is the Deputy of the Chamberlain; And alſo the Juſtice called the Juſtice of Cheſter, who hath Juriſdiction to hear and determine Matters of the Crown, and of Common-Pleas, Of Fines, and Recoveries levied, and ſuffered, as well within the County Palatine, as of the City of Cheſter; For which and much more concerning the ſame, See Coke's 4 Inſtitutes cap. 37. and the Statute of 16 & 17 Car. 1. c. 10. For diſabling the Court of Star Chamber; and Annulling and making void the like Juriſdiction exerciſed in the Court of Exchequer, in the County Palatine of Chester, held before the Chamberlain and Council of that Court.
THis is alſo a County Palatine by Preſcription, parcel of the Biſhoprick of Durham, and raiſed ſoon after the time of the Conqueror.
253Here is a Court of Chancery, which is a mixt Court both of Law, and Equity, as in the Chancery at Westminſter; But herein it differeth from the reſt, that if any Erroneous Judgment be given either in the Chancery upon a Judgment there according to the Common Law, or before the Juſtices of the Biſhop, a Writ of Error ſhall be brought before the Biſhop himſelf, and if he give Erroneous Judgment thereupon; a Writ of Error ſhall be ſued Returnable in the King's Bench.
If the Biſhop do wrong within his County Palatine, for that he cannot be Judge in his own Cauſe, Juſtices ſhall be Aſſigned to hear and determine the Cauſe, as was done in the caſe, when Richardus de Hoton Prior Dunelm 'queritur de Anthonio Epiſcopo Dunelm', alledging ſeveral Plaints againſt the Biſhop, whereupon. Iſſue was Joyned, and Verdict given againſt the Biſhop; And by that Record which was Termino Paſchae 30 E. 1. it appears, the Biſhop had within the County of Dureſme Regalitatem ſuam: And more concerning the ſame you may Read in Coke's 4 Inſtitutes cap. 38.
KIng Henry the firſt, of the Rich Monaſtery of Ely made a Cathedral Church, and of the Abbey made a Biſhoprick, and for his Dioceſs Aſſigned him the County of Cambridge, which was before within the Dioceſs of Lincoln, And this King Henry the firſt granted to this new Biſhop, and his Succeſſors Jura Regalia within the Iſle of Ely; But the Priory, and Convent were by Henry the eighth ſuppreſſed, and inſtead thereof a Dean, and Prebendaries raiſed to be the Chapter of the Biſhop, and a Grammar School for a Maſter, and 24 Scholars.
This Royal Juriſdiction the Biſhop hath by Preſcription granted upon the ſaid Grant, as well in Pleas of the Crown, as in Common Pleas before his Juſtices of his Liberties, and other Matters, Vide Coke's 4 Inſtituets cap. 39.
THis was an ancient County Palatine within Wales, and the Earl was Comes Palatinus, and had Jura Regalia, and all things belonging to a County Palatine, but the Juriſdiction thereof was taken away by the Statute of 27 Hen. 8. cap. 26. It being then in the King's hands.
THis was ſometime parcel of the Poſſeſſions of the Archbiſhop of York, and claimed by him to be a County Palatine, And at the Parliment, 2 Hen. 5. reſolved that Hexamſhire was a Franchiſe, where the Kings b Writ went not. And in the Statute of 33 Hen. 8. It is named a County Palatine, but by the Statute of 14 Elizab. cap. 13. It is declared no County Palatine, or Franchiſe Royal.
BY Doomeſday-Book it appears, that the priviledged Ports were but Three at firſt, viz. Dover, Sandwich and Rumney; afterward Two more, Haſtings and Hythe, were added to them by the Conqueror.
And theſe have ſeveral Priviledges, as to be free from Burthens, and Charges, and many others; and every of theſe ſend Two Burgeſſes to Parliament, by Name of Barons of the Cinque-Ports; and although Two more, viz. Winchelſey, and Rye be added, yet they hold their former Names of Cinque-Ports. Theſe lying towards France, Antiquity provided, they might be ſecurely kept, for performance whereof they have a Governour by his Office, called Lord Wardon of the Cinque-Ports, who is Admiral alſo, and hath the Juriſdiction of the Admiralty amongſt them; He is alſo Conſtable of Dover Caſtel, of whoſe Juriſdiction as Conſtable, vide Stat 'Artic' ſuper Chartas, and Coke's 2 Inst. 556.
There is a Diverſity between the Principality of Wales, the Counties Palatine, and the Cinque-Ports: For Wales was no part of England, but Counties257 Palatine are parcel of the Realm of England; but divided in Juriſdiction, and the Cinque-Ports are parcel of the County of Kent, and yet Ubi Breve Domini Regis non currit, but have not Jura Regalia: And therefore regularly no Writ of Error did lye of a Judgment in Wales; otherwiſe it is in the Counties Palatine. A. Judgment here of Lands in Wales, or in the County Palatine is void; but a Judgment given here of Lands in the Cinque-Ports is good, if the Priviledge be not pleaded, for they are part of the County. And in the Cinque-Ports are Divers Courts; as firſt,
The Court before the Conſtable of the Caſtle of Dover; And there be other Courts before the Majors and Jurators within the Ports themſelves; and another called Curia Quinque Portuum apud Shepway.
If any of the King's Courts write to have a Record in the Cinque-Ports, or for doing any thing within the ſame, the Writ is directed Conſtabulario Caſtri de Dover, & Guardiano Quinque Portuum.
And all Plaints againſt the Barons of the Cinque-Ports, ought to be determined at Shepway before the Warden of the Cinque-Ports.
And if an Erroneous Judgment be given in the Cinque-Ports before any258 of the Mayors and Jurats, it is to be Redreſſed before the Conſtable of Dover at the Court at Shepway, which Court was raiſed by Letters Patents of Edward the Firſt. Vide more in Coke's 4 Inſt. cap. 42. and Records there cited.
THis Counſel was raiſed by H. 8. by his Commiſſion giving them two Authorities under one Great Seal; For the King having ſuppreſſed Monaſteries of 200 l. per Annum by Act of Parliament 27 H. 8. Inſurrection was raiſed by Lord Huſſey, and 20800 Men in Lincolnſhire, whom Charles Brandon Duke of Suffolk appeaſed; and afterwards of 40000 Men more commanded by Sir Robert Aske, whom the Duke of Norfolk diſperſed; and afterwards a Great Commotion was raiſed in Lancaſhire, Westmorland, Cumberland and Northumberland, whom the Earl of Derby quieted; and divers other Rebellions being raiſed, and overcome and appeaſed, the King intending to ſuppreſs the Great Monaſteries, which he brought to paſs in 31 H. 8. for preventing future Dangers, By Commiſſion 31 H. 8. gave power of Oyer and Terminer, De259 quibuſcunque Congregationibus, Tranſgreſſionibus, Riotis, Routis, &c. per quae Pax, &c. in Com' Ebor ', Northumberland, Weſtmorland, Durham, Com' Civitatis Ebor' Kingſton ſuper Hull, & Newcaſtle ſuper Tinam gravetur, &c. ſecundum Legem, &c. vel aliter ſecundum Sanas Diſcretiones veſtras, &c. Necnon quaſcunque Actiones Reales, ſeu de Libero Tenemento, & Perſonales, &c. audiend & terminand '. But afterwards the ſaid Commiſſion being adjudg'd to be againſt Law, Firſt, For that the Clauſe Secundum Sanas Diſcretiones vestras being Reſolved by the Judges, 6 Jacobi primi, to be againſt Law; and, Secondly, the latter Clauſe was then alſo ſo Reſolved; For that Actions Real and Perſonal were not to be heard and determined by Commiſſion, but Secundum Legem, &c. to the end their Authority ſhould not be known, they procured their Commiſſion, ſhould not give them any Authority, but wholly to refer to Private Inſtructions given them, not to be Inrolled in any Court; whereof King James being informed, did give Order their Inſtruictions ſhould be Inrolled for the Advantage of the Subjects.
This Commiſſion hath had continuance, therefore the Lord Coke thinks it worthy of ſome Eſtabliſhment by Parliament.
260Henry the Eighth likewiſe raiſed a Preſident and Council for the Weſtern parts; but they of Devon and Cornwal oppoſed it: Et ſic Commiſſio illa cito evanuit.
Likewiſe no doubt is that there hath been a Preſident and Councl of York De facto; but what Juriſdiction they had is the Queſtion. But now the Courts are Diſſolved, the Juriſdiction being taken away by the Statute of 17 Car. 1. cap. 10.
THey proceed according to Marſh Law, or Borders Law; but their Juriſdiction was increaſed by Statutes, and confin'd to Northumberland, Cumberland, Westmorland, and Newcaſtle upon Tine.
But ſince King James was Monarch of both Kingdoms the ſaid Courts are vaniſhed, and Hoſtile Laws on both Sides by Authority of Parliament, in either of the Kingdoms, are Repealed.
Is ſo called à Stanno; and the Style of this Court is, Magna Curia Domini Regis Ducatus ſui Cornubiae apud Crokerenton in Com' Devon ', coram A. B. Cuſtode Stannariae dicti Domini Regis in dicto Com' Devon'.
The Lord Warden hath Juriſdiction of all the Tynn in Cornwal and Devon, and is guided therein by Special Laws, by Cuſtoms, and by Preſcriptions Time out of mind: And the Officers be the Steward, Under-Warden, &c.
By Expoſition of the Charters of 33 E. 1. Made and Declared in Parliament Anno 50 E. 3. it appears, that all Tynners, and Workers in the Tynn-Works, ſhould be Free, ſo that they ſhould not Anſwer for any Matter or Thing ariſing within the Stannaries before any other Judge or Officer, but only before the Warden of the Stannaries, (Except for Pleas of Land, Life, or Member) and ſhould not depart from their Work, for the Summons of any the King's Officers, except of his ſaid Warden of the Stannaries; and ſhall be quit of all Tallages, Tolls, Stallagiis, & aliis Cuſtumis, in Towns,262 Ports, Fairs, and Markets within the ſaid County, De bonis ſuis propriis.
Upon any cauſe of Complaint miniſtred the ſame is to be redreſſed by Appellation, Firſt to the Steward of the Stannary-Court where the matter lyeth; Then to the Under-Warden of the Stannaries, and from him to the Lord Warden, and for want of Juſtice at his hands, to the Princes Privy Council.
For the Laws, Juriſdictions, &c. of this Court, ſee more in Co. 4 Inſt. c. 45. and Records, &c. there cited.
It was Reſolved 4 Jac. 1. in Camera Stellata, That Stannum Tynne, otherwiſe White Lead, nor Black Lead, nor any other baſe Metal did belong to the King, by his Prerogative, as Gold and Silver do, albeit there may be tryed out of the baſe Metal Gold and Silver; but that is as the ſeed or ſtrength of the baſe Metal, which being Extracted becomes Defective.
There be Five kinds of Baſe Metals, viz. Aes, ſive Cuprum, (becauſe it was found out, as ſome hold, in Cypro) Copper; Stannum, Tynn; Ferrum, Iron Plumbum, Lead; and Orychalcum, Latyn. Polybius 209 years before Chriſt wrote, That this Iſland was abundantly ſtored with Tynn. Britanni qui juxta Belerium263 promontorium incolunt Mercatorum uſu, qui eo Stanni gratia navigant humaniores reliquis hoſpites habentur; hij ex terra Saxoſa cujus venas ſectati effodiunt Stannum igne eductum in quandam Inſulam ferunt Britannicam juxta, quam Vectam vocant: Ex hiis Inſulis Mercatores emptum Stannum in Galliam Portant, inde diebus fere triginta cum equis ad fontem Eridani fluminis perducunt, Coke's 4 Inſt. cap. 45.
THis Court is guided by the Law Merchant, which is the Law of the Staple, and is holden at the Wool-Staple in Weſtminster; and there alſo are Two Conſtables, and a certain number of Correctors, to do that which pertaineth to their Office, as in other Staples is accuſtomed.
And though it be more ancient, is warranted by Parliament 27 Ed. 3. Whereby it is Ordained, That
The Staple of Wools, Leather, Woolfells and Lead ſhall be holden at Newcaſtle upon Tine, York, Lincoln, Norwich, Weſtminſter, Canterbury, Ciceſter, Wincheſter, Exeter and Briſtol. For Wales, at Caermardyn; and for Ireland at Deuelin, Waterford, Cork, and Droghoada. And that ſuch as ſhall be carryed out of the264 Land, ſhall be brought to ſome of the ſaid Staple-Towns, to be weighed by the Standard, and the Cuſtoms paid. But from ſuch of the ſaid Staple-Towns which are not Port Towns, the ſaid Staple Commodities ſhall be ſent to the next reſpective Port Towns, as from Weſtminſter to London, &c. there to be weighed again by the Cuſtomers.
Item, That in every Town where the Staple is Ordained, ſhall be a Mayor choſen yearly by the Comminalty, who hath knowledge in the Law Merchant, and Two convenable Conſtables, who have power to keep the Peace, arreſt the Offenders in Staples for Debts, Treſpaſs, and other Contracts, and them to Impriſon and puniſh after the Law of the Staple, and a Priſon appointed for that purpoſe.
The Mayors, Sheriffs, and Bayliffs of the Towns where the Staple is, or joyning to the Staple, ſhall be attending to the Mayors and Miniſters of the Staple, for Executing their Commandments upon grievous Forfeiture; and one Lord or other of the moſt Sufficient where the Staple is, ſhall be aſſigned to be Aidant to the Mayor and Miniſters of the Staple, to juſtifie the Rebels that cannot be juſtified by the Mayors and Miniſters of the Staple,265 and to redreſs all Complaints, &c.
The Bounds of the Staple at Weſtminſter, ſhall begin at Temple-Bar, and extend to Tuthill. In other Cities and Towns, within the Walls; and where there are no Walls, through all the City or Town.
By the Statute of 27 Ed. 3. the Major of the Staple may take Recognizances of Debts under the Seal of the Office, but not with the Seal of the Party.
By the Statute of 23 H. 8. the Major of the Staple at Weſtminſter, and Recorder of the City of London, in the abſence of the Two Chief Juſtices out of Term, have power to take Recognizances of Debts, according to that Statute, and this is in the Nature of a Statute Staple; but it hath beſides the Seal of thoſe that take it; the Seal of the Party.
By the Statute of 36 Ed. 3. Merchant Strangers may ſue before the Major of the Staple, according to Law Merchant, or at the Common Law.
By the Statute of 8 H. 6. cap. 17. there are in England Five Staple Merchandizes, viz. Wool, Woolfells, Leather, Lead, and Tyn.
266The Mayor and Conſtables are ſworn in Chancery, to do lawfully that which pertaineth unto them.
That Staple cometh from the French Eſtape, ſignifying a Mart, or Market; and for other Matters concerning the Staple, ſee Coke's 4 Inſt. cap 46. and the Statutes, and Records there mentioned.
WALLIA, Wales, by the Saxons called〈…〉〈 in non-Latin alphabet 〉, Wales, unde Wallenſes, Walli (i. e.) Exteri ſeu Per•grini. The Britons calling Engliſhmen Saiſons. They are of the Poſterity of the ancient Britons, Inhabiting on the Weſt part of Great Brittany. This was ſometime a Realm, or Kingdom, Governed per Regulos ſuos.
But Jure Feodali the Kingdom of Wales was holden of the Crown of England, and thereby (as Bracton ſaith) was Sub poteſtate Regis, and ſo continued until the 11th Year of King Edward the Firſt, when he ſubdued the Prince of Wales, and Executed him for Treaſon. Whereof Fleta (who lived in thoſe days) ſpeaketh thus: Et unico Malefactori plura poterunt infligi tormenta, ſicut267 contigit de Davide Principe Walliae, cum per Edwardum Quinque Judiciis mortalibus torquebatur, ſuis namque Meritis exigentibus, Detractus, Suſpenſus, Diſmembratus fuit, & combuſtus, cujus caput principali Civitati, quatuorque Quarteria ad quatuor partes Regni in Odium tradit deferebuntur ſuſpendendum.
And in the 12th of E. 1. by Parliament it is declared, (ſpeaking in the Perſon of the King, as ancient Statutes were wont to do) Divina Providentia quae in ſua diſpoſitione non fallitur, inter alia, ſuae diſpenſationis munera quibus nos & Regnum nostrum Angliae decorari dignata eſt, Terram Walliae cum Incolis ſuis prius nobis Jure Feodali Subjectam, jam ſui gratia in Proprietatis noſtrae Dominium Obſtaculis quibuſcunque ceſſantibus Totaliter & cum Intergritate convertit, & Corona Regni praedicti tanquam partem corporis ejuſdem annexuit & univit. Yet this Wiſe and Warlike Nation, was long after this not ſatisfied; eſpecially for that taking part with their Rightful Liege Lord King Richard the Second, In Revenge thereof many ſevere Laws were made againſt them in the Reigns of H. 4. H. 5. &c.
And they were never in quiet, till H. 7. their own Country-man (as deſcended from Owen ap Meredith, ap268 Theodore, who Married Katharine Daughter of France, and Dowager of King Henry the Fifth, and was by Commiſſion found to be Lineally deſcended from Cadwallader King of the Britons) obtained the Crown. And yet not ſo really Reduced in his time, as in the Reign of his Son King Henry the Eighth, when
The Principality of Wales, and Dominions thereof, was by Act of Parliament 27 H. 8. Incorporated and United to the Realm of England: And it is thereby Enacted,That every Subject born in Wales, ſhould enjoy the Liberties, Rights and Laws of this Realm, and have Knights of Shires, and Burgeſſes of Parliament, &c. One Knight for each Shire, and One Burgeſs for each Burrough, and the Laws of England uſed in Wales. Vide le Stat.
And this Principality conſiſteth of 12 Counties, whereof Eight (viz.) Glamorgan, Angleſey, Carnarvan, Pembroke, Merioneth, Flint, Carmarthan, and Cardigan, by Statutum Walliae, were Erected 12 E. 1. And the other, (viz.) Brecknock, Radnor, Denby, and Montgomeroy, by 27 H. 8. Beſides the Shire of Monmouth, and other Lordſhips, and Manors in the Marſhes united to Salop, Herefordſhire, and Glouceſter.
THis is a Court of Equity before the Preſident and Council there, Warranted by the Statute of 34 H. 8. cap. 36. with Reference to Preſciption before, in theſe Words:
They ſit by force of the King's Commiſſion and Inſtructions, and proceed as in a Court of Equity by their Wiſdoms and Diſcretions; Herefordſhire, Worceſterſhire, Shropſhire, and Glouceſter, are included within this Commiſſion, pretending that theſe Four Shires are within the Marſhes of Wales.
This Court is now Diſſolved.
BY the Statute of 34 H. 8. It is Ordained, That there ſhall be Seſſions holden and kept Twive in every Year. in every of the ſaid Shires within the Dominion of Wales, which ſhall be called The King's Great Seſſions in Wales.
The Juſtice of Cheſter ſhould hold thoſe Seſſions in the Shires of Denbigh, Flint and Montgomeroy; and have nothing but his old Fee of 100 l. for the ſame.
That the Juſtice of North Wales ſhall likewiſe hold the Seſſions for the Shires of Carnarvan, Merioneth, and Angleſey, and ſhall have Fifty Pounds yearly of the King for his Fee.
That one Perſon Learned in the Laws appointed by the King, ſhall be Juſtice of the Shires of Radnor, Brecknock, and Glamorgan, and ſhall hold the ſaid Seſſions there, and ſhall have Fifty Pounds yearly of the King for his Fee.
That one other perſon Learned in the Laws, and appointed by the King, ſhall be Juſtice for the Shires of Carmarthan, Pembroke, and Cardigan, and ſhall keep the Seſſions there, and have the like271 Sum of Fifty Pounds yearly of the King for his Fee.
The ſaid Juſtices ſhall have ſeveral Letters Patents, and Commiſſions for their Offices under the Great Seal of England, to be Excerciſed by themſelves, or their ſufficient Deputies, according to the purpoſes and intents in their Ordinance ſpecified.
Theſe Juſtices may hear and determine all Pleas of the Crown, as the Chief Juſtice and other Juſtices of the King's-Bench may do in their places, and elſewhere in the Realm of England; and all Pleas of Aſſize, and all other Pleas and Actions, Real, Perſonal, or Mixt, as the Chief Juſtice of the Common Place in England, or other Juſtices of the ſame Place, may do in the Realm of England.
That open Proclamation being made in the Shire-Towns Fifteen days before of the Time, and Place they intend to keep the ſaid Seſſions, the ſaid Seſſions ſhall be held and continued for Six days together, according to the former Cuſtom heretofore uſed in North-Wales.
The Seals deviſed for each Diviſion, to be kept by the Steward and Chamberlain of each Diviſion.
272Four Judicial Seals to be in the Cuſtody of the Four Juſtices reſpectively, and the Teste of Proceſs Judicial ſhall be in the Name of the Juſtice who ſhall paſs it.
Fines, Concords, Recoveries, &c. taken before the ſaid Juſtices within their Authority reſpectively, without any Dedimus potestatem, as before the Juſtice of the Common Place in England.
There ſhall be Juſtices of the Peace, and Juſtices of Quorum, and Cuſtos Rotulorum Commiſſionated by the King in Every of the ſaid Counties, not exceeding Eight in a County; and thoſe, or two of them in each County, whereof one to be of the Quorum, may keep their Seſſions Four times in the Year, or oftner if urgent occaſion requires, and have like Authority, and Fees as Juſtices in England, Sheriffs, Eſcheators, Coroners, Conſtables of Hundreds, and other Officers, and their Courts to be had, and holden as in England. Vide le Statute.
Rodry Maure King of VVales, who died Anno 877, in the time of Alured King of England, and left Three Sons, Mervyn, Anarawd, and Cadelh, Divided his Kingdom into Three parts; Guyneth, which the Engliſh call North-VVales, the Latins Venedotia, he gave to273 Mervyn, or as ſome ſay to Anarawd; Powisland, in Latin Powiſia, which ſome call VVeſt-VVales, he gave to Anarawd, or as ſome ſay to Cadelh; and Deheobarth, which the Engliſh call South-VVales, and the Latins Demetia, he gave to Cadelh, or as ſome ſay to Mervyn: The Firſt was the beſt, becauſe the Quieteſt, the Second often Invaded by the Engliſh, and into the Third Incurſions were often made by the Engliſh, Norman, and Fleming.
The Diviſion of this Kingdom, brought in time ſuch Diviſion amongſt theſe Princes, that it was never quiet till it came under one Monarch and King again: For the Royal Dignity of a Monarch, or King, from whence all other Subordinate Dignities Tanquam Lumen de Lumine are derived, without any Diminution, will ſuffer no Diviſion, Regia dignitas eſt Indiviſibilis & quaelibet alia derivativa Dignitas eſt ſimiliter indiviſibilis.
King Edward the Third in the 17th year of his Reign, by Charter Eſtabliſhed in Parliament, created his Son Son (called the Black Prince) Prince of VVales, in theſe words: De Concilio Praelatorum Comitum Baronum & Communiam in Generali Parliamento noſtro apud Weſmonaſter 'die Lunae in Quindena274 Paſchae proximè praeterito convocato Ipſum Edwardum Pricipem Walliae fecimus & creavimus. Et dictum Principatum ſibi dedimus & conceſſimus, & per Chartam nostram confirmavimus ac ipſum de dicto Principatu, ut ibidem praeficiendo praeſidiat & praeſidendo dictas partes dirigat & defendat per ſertum in Capite & Annulum in Digito aureum, ac virgam argenteam inveſtivimus juxta morem, Habendum & tenendum de nobis ſibi & Haeredibus ſuis Regibus Angliae imperpetuum, &c.
And in the ſame manner, is the Noble and primary County Palatine of Cheſter, granted to him at the ſame time with the ſame words, Sibi & Haeredibus ſuis Regibus Angliae, which import a limited Fee; and that by his deceaſe, or attaining to the Crown, theſe Dignities might be Extinguiſhed in the Crown, to the end the King for the time being, might have the Honour and power to create his Heir apparent Prince of VVales, and Earl of Cheſter, as he himſelf had been by his Progenitors.
But otherwiſe it is in the Caſe of the Dutchy of Cornwal, Vide Coke's 4 Inſt. cap. 48. that being without Creation and ever ſince 11 Ed. 3. the Firſt begotten Son of the King is ever Duke of Cornwal.
275And this may ſuffice for a Short Survey of the Principality of Wales. And now proceed to
THe King hath the Sole Supream Goverment, Command, and Diſpoſition of the Military Power of England, both by Land and Sea; As is at large declared in Parliament, Anno 14 Car. 2. And
By Land, the next under the King is the Generaliſſimo (when in being) of all his Majeſties Forces in his Three Kingdoms, Horſe, and Foot in Say, as well within Gariſon, as without.
Theſe Forces in the late King Charles the Seconds time, conſiſted of 4 Regiments of Foot, The King's Regiment 24 Companies and near 1700 Men, The Dukes Regiment 720 Men, Another Regiment 600 Men, And the Earl of Craven's Regment of 960 Men, And the Earl of Oxford's Regiment, conſiſting of 8. Troops, about 500 Horſe beſides Officers.
276There were likewiſe in King Charles the Seconds time, Three compleat Troops of Horſe for his Life-Guard, The Kings Troop 200 Horſe, The Queens Troop 150 Horſe, and the Duke of Yorks Troop 150 Horſe.
The reſt of his Majeſties Forces in conſtant pay were diſpoſed under ſeveral Governors in ſeveral Gariſons, of which there are about Thirty two, and in ſome of them, the King had 500 Men in conſtant pay.
The pay of a Colonel of Horſe 12 s. per diem, A Collonel of Foot 20 s. per diem, and other Officers proportionably. Each of the Life-Guards 4 s. per diem, And each Trooper 2 s. 6 d. per diem, Each Foot Soldier in London 10 d. per diem, Each Foot Soldier in Garriſon 8 d. per diem.
Theſe Forces were afterwards much encreaſed, but no Orders are yet ſetled by Act of Parliament for theſe Land Forces, as there are for Sea Forces. But now they are ſettled by Act of Parliament to be 7000 natural born Subjects, The Officers included.
Beſides theſe Forces before mentioned the Standing Militia of the Kingdom is ſettled in the King, by Acts of Parliament Tempore Car. 2. to be Governed, Ordered, and Enlarged from time to time, as his Majeſty ſhall ſee occaſion.
277For Government of theſe the King by Commiſſion, Creates divers of the Peers of the Kingdom. Lieutenants of the ſeveral Counties, with power to Arm, Array, and Form into Companies, Troops, and Regiments, and to conduct upon occaſion of Rebellion, or Invaſion, and employ there Men ſo Armed within their reſpective Counties, or into any other County as the King ſhall direct, To give Commiſſions to Colonels, and other Commiſſionated Officers, To preſent to the King the Names of Deputy Lieutenants, To charge ay perſon with Horſe, Horſe-Men, and Arms, or Foot Soldiers and Arms within the ſaid County proportionable to their Eſtates, with limitation that no perſon be charged with a Horſe, unleſs he hath 500 l. yearly, or 6000 l. perſonal Eſtate, or with a Foot Soldier unleſs he hath 50 l. yearly, or 600 l. perſonal Eſtate; Thoſe that have meaner Eſtates are to joyn Two or Three together, to find a Horſe, or Horſeman, or a Foot Soldier.
The ſaid Horſe, or Foot to Muſter once or twice a year, and each Horſe-Man while he ſerves to have 2 s. a day, and each Foot Soldier 12 d. per diem.
278They have likewiſe power to levy a Fourth part of the Tax of 70000 l. per Menſem, for Ammunition; And in caſe of Marching againſt an Enemy, they have power to cauſe every Man ſo charged, to allow each Soldier a Months pay, which the King is after to pay, before they be charged, with another Months pay.
In 1588, Upon the Muſter made by Commiſſion from Queen Eliz. in expectation of the Spaniſh Invaſion, there were found to be Three Millions, and of thoſe fit for War about 600000 Men.
In all times of danger, ſome are ſet to watch at every Beacon, to give notice in a few Hours to the whole Kingdom.
There were anciently many Caſtles in all parts of England; But Inland Caſtles have been either demoliſhed, or willingly ſuffered to decay, that Rebels, or Invaders might have no Shelter, or the Invaded any Refuge to Fly to, whereby to occaſion any Lingring.
And now we come to the Military Courts, amongſt which the chief is
THis Court is called Curia Militaris, and the Marſhal Court, wherein the Lord Conſtable, and Earl Marſhal of England are Judges; And is the Fountain of the Martial Law.
Conſtable Is compounded of two Saxon words, Cunning, per contractionem King, & Stable, id eſt, Columen. q. Columen Regis anciently written Coningſtable.
Marſhal, Likewiſe of two Saxon wards, Mare for Equus, and Stale for Curator.
The Juriſdiction is declared by the Statute of 13 R. 1. To the Conſtable it appertaineth to have Conuſance of Contracts, and Deeds of Arms, and of War out of the Realm, and alſo of Things that touch War within the Realm; which cannot be determined, or diſcuſſed by the Common Law, with other Uſages and Cuſtoms to the ſame pertaining, which other Conſtables have duly and reaſonably uſed in their time, joyning to the ſame that every Plaintiff ſhall declare plainly his Matter in his Petition, before that any Man be ſent for to anſwer thereunto; And if any will complain,280 that any Plea be commenced before the Conſtable, and Marſhal that might be Tried by the Law of the Land, the ſame Complainant ſhall have a Privy Peal of the King, without difficulty directed to the ſaid Conſtable, and Marſhal to Purceaſe in that Plea, till it be diſcuſſed by the King's Council, if that Matter ought and of right pertaineth to that Court; Or otherwiſe, to be Realm of England, and alſo, that they Purceaſe in the mean time.
For Tryal by Battel between the Lord Morley, and the Earl of Sarum, and divers others there cited, See Coke's 4 Inſt. cap. 17.
In an Appeal between Upton and Down 8 Hen. 6. after Battle joyned, the King's Writ out of the Chancery Iſſued to the Sheriffs of London, as followeth:
REx &c. Vic' London ſalutem Praecipimus vobis firmiter injungentes quod quaſdam Listas & Barras de Maremio fortes & ſatis ſufficientes pro quodam Duello inter Joh. Upton Appellantem & Johan 'Downe Defend' Secundum Legem Armorum die Lunae prox 'futur' apud Weſtſmithfield in Suburb 'Civitatis praed' Deodanti281 perficiend 'contra diem praed' noſtris Sumptibus & Expenſis erigi; conſtrueri & fieri fac 'in Omnibus prout in Ultimo Duello ibidem facto fact fuer' & quod terra inter Liſtas praed 'cum ſabulo ſufficienter & Equalitter cooperiatur Ita quod aliqui Lapides Grandes, aut arena infra eaſdem Liſtas minime inveniantur quovis modo: Et de omnibus & ſingulis paecuniarum Summis quas circa praemiſſa aplicaveritis nos vobis in computo veſtro ad Scaccarium per praeſens madatum noſtrum debitam allocationem habere faciemus, &c.
And by a French Manuſcript Intituled, Modus faciendi Duellum Coram Rege Bone Foy & Droit & Ley de Armes voet quel Apellant encourge meſme peyne que le Defendant deveroit ſil ſoit Convicte & diſcomfit, And this ſeemeth to be conſonant to the Law of God, Deut. 19, 18.
They proceed according to the Cuſtoms and Uſages of the Court, and in caſes omitted according to the Civil Law, Secundum Legem Armorum, and therefore upon Attainders before the Conſtable, and Marſhal, no Land is Forfeited, or corruption of Blood wrought.
282It was reſolved in the Reign of Queen Eliz. in the Caſe of Sir Francis Drake, who ſtruck off the Head of Dowty, in Partibus tranſmarinis; That his Brother and Heir might have an Appeal. Sed Regina noluit conſtituere Conſtabularium Angliae, &c. & ideo dormivit Appellum.
The Proceeding, and Sentences here is upon Witneſſes or Combat, and not by Jury; and after Sentence in this Court in Caſe of Arms, the party grieved may Appeal to the King.
What Judgment ſhall be given, when either party is vanquiſhed, and when Tryal by Battel ſhall be for things within the Realm, before the Juſtices of the King's Bench, or Common Pleas, Vide Coke's 4 Inſtitutes cap. 17. Crompton's Juriſdiction of Courts, Fol. 82.
The effect of the Grant of the Office of Conſtable, is in few words, Officium Conſtabularij Angliae unacum Omnibus Feodis, proficuis, comditatibus, & Emolumentis quibuſcunqueOffico, praedicto qualitercunquepertinentibus, & ab antiquo debitis & conſuetis.
And now as in ſome reſpects incident to this Court, as being created by the Earl Marſhal, we ſhall in the next place ſpeak ſomewhat of.
OF this Collegiate Society are Three Stiled Reges Armorum, Anglorum, Kings at Arms, the principal of which is called
Garter, Inſtituted by King Henry the 5th, whoſe Office is to attend the Knights of the Garter at their Solemnities; To Advertiſe them of their Election, And to call them to be Inſtalled at Windſor; To cauſe their Arms to be hung upon their Seats there; To carry the Garter to Kings and Princes beyond Seas; for which purpoſe he was wont to be joyned in Commiſſion with ſome principal Peer of the Realm, and to Marſhal the Solemnities and the Funerals of all the Higher Nobility of England. The next is
Clarencieux, So called from the Duke of Clarence, to whom he firſt belonged, which Dukedom Eſcheating to King Edw. the 4th, by the Death of his Brother George Duke of Clarence; he made this Herald a King at Arms, and named him Clarencieux in French, and Clarentius in Latin.
284His Office is to Marſhal and diſpoſe the Funerals of the Leſſer Nobility, as Baronets, Knights and Gentlemen, on the Southſide of Trent, and therefore ſometimes called Surroy, or Southroy. And then
Norroy or Northroy, whoſe Office is to do the like on the Northſide of Trent; And theſe Two laſt are called Provincial Heralds.
Theſe by Charter have power to viſit Noblemens Families, to ſet down their Pedigrees, to diſtinguiſh their Arms, to appoint Men their Arms and Enſigns, and with Garter to direct the Heralds. And next are the
Six Heralds anciently belonging to Dukes have been ſometime named Dukes at Arms, and are thus called, and ranked, Windſor, Richmond, Chester, Sommerſet, York and Lancaſter; Their Office anciently was to attend Dukes in Marſhal Execution, now to wait at Court, attend publick Solemnities, Proclaim War, and Peace, &c. And perhaps named Heralds from the German Here, and Healt; that is, The Armies Champion, to denounce War, or offer Peace, as the Feciales of the Romans did.
285Theſe wait by turns upon the Kings at Arms, and have part of their Fees; And of theſe antiently were many, as likewiſe of Purſuivants. But now there are but
Four Purſuivants named Rouge Croſſe, Rouge Dragon, Portcullice and Blewmantle, from ſuch Badges heretofore worn by them as is throught.
Theſe King's Heralds, and Purſuieants were anciently Crowned, and had their Creation from the Kings Hand; But of later times the Earl Marſhal hath had a Commiſſions for every particular Creation by Letters Patents; The manner whereof, you may ſee in the Preſent State of England.
They were incorporated by King Richard the 3d, and afterwards had another Charter of Priviledge, by King Edward 6th, in the Third year of his Reign.
The Duty of the whole Colledge is to Marſhal and Order Coronations, Marriages, Chriſtnings, Funerals, Interviews, Feaſts of Kings and Princes, Cavalcades, Juſtes, Tournaments, Combates before the Conſtable, and Marſhal, &c. Alſo, they take care of the Coats of Arms, of the Genealogies of the Nobility, and Gentry, and whatſoever286 concerns Honour is their Care and Study; They are Tanquam ſacrorum Cuſtodes, & Templi Honoris Aeditui.
All theſe receive Annual Stipends out of the Exchequer; Are all to be Gentlemen at leaſt, and the Six Heralds at their Creation are expreſly made Eſquires by the King.
When Capias, or Exigent are awarded againſt a Peer, or Baron, he may have a Writ to command that they Sue out no other Proceſs againſt him, than what they ought to have againſt Lords, and Great Men, which come to the Parliament by the ancient Laws, and Cuſtoms of England.
Edmond Dein Court of Langley in Com' Lincoln '; By Letters Patents from Ed. 2. had Licenſe to Aſſign his Surname, Arms, and Poſſeſſions, which 19 E. 2. he accordingly did: But the Lord Hoc Tempore Edw. 4th Granting his Name, Arms, and Dignity over without the King's Licenſe, the ſame was in Parliament adjudged void.
The Grant of Earl Marſhal of England by Letters Patents of Rich. the 2d, and other Grants thereof, you may ſee more at large, Coke's 4 Inſtitutes cap. 17.
ALL the King's Maritime Forces, are under the Command of the
Lord High Admiral of England, ſo called from Amir in Arabick, and〈…〉〈 in non-Latin alphabet 〉in Greek; that is, Praefectus Marinis, A compound word from the Eaſtern Empire, introduced into England after the Wars in the Holy Land, by King Richard or King Edward the firſt.
His Patent was antiently Angliae Hiberniae & Acquitaniae Magnus Admirallus: But now it is Angliae & Hiberniae & Dominiorum & Inſularum eorundem Villae Caleſiae & Marchiarum ejuſdem, Normandiae, Gaſconiae & Acquitaniae Magnus Admirallus, & Praefectus Generalis Claſſis & Marium dictorum Regnorum: And this Office for the Great Truſt and Honour, is uſally given to the King's younger Son, near Kinſman, Or one of the Principal Nobility.
He hath power to Commiſſionate a Vice-Admiral, a Rear-Admiral, All Sea Captains, And alſo Deputies for particular Coaſts, Coroners, Commiſſioners,288 and Judges for the Court of Admiralty, to Impriſon, Releaſe, &c. and ſometimes to confer Knighthood on ſuch as deſerve it at Sea.
To him by Law and Cuſtom belong Penalties, and Amerciaments of Tranſgreſſors at Sea, on the ſhore in Ports and from the firſt Bridge, on Rivers towards the Sea; Alſo the Goods of Pirates, Felons, or Capital Faulters condemned, Outlawed or Horned; All Waifs, Strays, Goods, Wrecks of Sea, Deodands, a ſhare of lawful Prizes, Lagon, Jetſam, and Flotſam; that is, Goods lying in the Sea, on the Ground, Goods Floating on the Sea, and Goods caſt by the Sea on Shore, not granted to Lords of Mannors adjoyning to the Sea; All great Fiſhes, as Sea-Hogs, and others of Extraordinary bigneſs called Royal Fiſhes, Except Whales, and Sturgeons.
To the Crown of England belongs the Sovereignty of the Narrow-Sea round the Iſland of Great Britain, whereof by Ancient Right it hath had Poſſeſſion in all times, and King Edgar ſtiled himſelf Sovereign of the Narrow-Seas.
In Teſtimony whereof the Swedes, Danes, Hollanders, &c. were wont to aske leave to paſs the Britiſh-Seas, and289 to take Licenſes to Fiſh therein: And to this day Strike Sail to all the Ships of War belonging to the King of England, as oft as they paſs by any of them; thereby acknowledging his Sovereignty according to an Ordinance made at Haſtings in Suſſex by King John, about 450 years ago.
To maintain this Right, Protect Trade, and Defend their Kingdoms; The Kings of England have Ships of War for Strength, Beauty, and Sailing, Surpaſſing all other in the World; of theſe, ſuch as Ships then were King Edgar is ſaid to have 3600; And the late King Charles had 7 of the Firſt Rate, 9 of the Second Rate, 22 of the Fifth, and 18 of the Sixth Rate, beſides 30 Fireſhips, and ſeveral Small Veſſels, for Tenders, and Victuallers.
The Royal Sovereign Built by King Charles the firſt 1637, being of the Firſt Rate, was in Length by the Keel 127 Foot, in Breadth by the Beam 47 Foot, in Depth 49 Foot, her Draught of Water 21 Foot, Burthen in all 2072 Tunns, and 1492 Tunns beſides Guns and Tackle, hath 6 Anchors, the biggeſt 6000 l. weight, and the leaſt 4300 l. weight, 14 Cables, the greateſt 21290 Inches compaſs, and weighs 9000 l. weight, the leaſt 8 Inches compaſs, weighing near 1300 l. weight, 18 Maſts, and Yards, the Main Maſt 113 Foot long, and 38 Inches Diameter, the Main Yard 105 Foot long, and 23 Inches Diameter, and her Main Top 15 Foot Diameter; Had 10 ſeveral ſorts of Sails, Her greateſt called the Main Courſe, contained with her Bonnet 1640 yards of Canvas Ipſwich double, The leaſt called the Foretop Gallant Sail 130 yards of Canvas. The compleat ſuit coſt 404 l. The weight of Sea ſtore in point of Ground Tackle and other Cordage, 60 Tuns, 800 and odd Pounds.
Shee carried a Long boat of 50 Foot, a Pinnace of 30 Foot, and a Skiff of 27 Foot long.
The weight of her Rigging 33 Tun, She hath 3 Tires of Guns, 44 in the Upper, 34 in the Second, and 22 in the Lower Tire, in all 100 Guns.
She carried Officers, Soldiers, and Mariners, in all 850 Men.
The charge for Victuals, Ammunition, Wages, Wear, and Tear every Month at Sea coſts 3500 l.
291The Charge of Building a Firſt Rate Ship, with Guns, Tackle and Rigging, doth uſually amount to 62432, the leſſer Rates Charge is proportionable, A Second Rate carries from 56 to 80 Guns, A Third Rate from 58 to 70 Guns, A Fourth Rate from 40 to 60 Guns, A Fifth Rate from 24 to 32 Guns, A Sixth Rate from 6 to 18 Guns.
The Lord High Admiral may fitly be reputed Vice-Roy of the Maritime Kingdom of England; Nam in Mari ſunt Regna diſtincta idque Jure Gentium ſicut in arida Terra.
The Vice-Admiral, is an Officer to whom next under the High Admiral it belongs, to ſee the Royal Navy kept in good Repair, The Wages of Mariners, and Shipwrights duly paid, and the Ships provided of all things neceſſary.
The Lord High Admiral doth appoint in divers parts of the Kingdom Vice Admirals, with their Judges and Marſhals, by Patent under the Great Seal of the Admiralty; Theſe do Exerciſe Juriſdiction in Maritime Affairs within their Limits, and if any be aggrieved by their Sentence, or Decree, he may Appeal to the High Court of Admiralty, and of theſe round the292 Coaſts, are about 22 in England and Wales.
The Lord High Admiral hath Courts for the Maritime Affairs, whereof the Principal is at London and called
IN this Court Erected as ſome hold by Edward the Third, The Lord Admiral hath a Lieutenant, called Judge of the Admiralty, who is commonly ſome Learned Doctor of the Civil Law. Becauſe
The Proceeding is in all Civil Matters according to the Civil Law; The Sea being without the Limits of the Common Law, and by Libel they Proceed to the Action, the Plaintiff giving caution to proſecute the Suit, and to pay what ſhall be adjudged againſt him if he fail therein, The Defendant alſo giving Security, or Caution as the Judge ſhall think meet, that he will appear in Judgment, and pay that which ſhall be adjudged againſt him, and that he will ratify whatever his Proctors ſhall do in his name.
293Beſides the Civil Law, The Laws of Rhodes and Oleron are here uſed, The former for their Excellency being Incorporated into the Volumes of the Civil Laws, And Oleron being an Iſland in the Bay of Aquitain, belonging to the Crown of England, King Richard the firſt, there Compiled ſuch Excellent Laws for Sea Matters, that in the Ocean Sea Weſtward, they had almoſt as much Repute as the Rhodian Laws in the Mediterranean, and theſe Laws were called La Rool de Oleron.
Many Statutes and Ordinances were made by King Edward the Third, and other Princes and People, as at Rome, Piſa Genoa, Marſeilles, Barcelona, and Meſſina, yet that Fragment of the Rhodian Law, ſtill extant, holds the Preeminence in Maritime Affairs.
The Cuſtoms and former Decrees of the Engliſh Court of Admiralty are there, of Force for deciding Controtroverſies. And under this Court there is alſo
A Court of Equity for determining Differences between Merchant and Merchant.
In Criminal Affairs, which is moſt commonly about Piracy, The Proceeding in this Court was by Accuſation, and Information, by a Man's own Confeſſion,294 or by Eye — witneſſes he was found Guilty before he could be Condemned; But that being found inconvenient, there were two Statutes made by King Henry the Eighth, that Criminal Affairs ſhould be Tried by Witneſſes, and Jury, and that by Special Commiſſion from the King to the Lord High Admiral, wherein ſome of the Judges of the Realm are ever Commiſſioners, and the Tryal according to the Laws of England directed by thoſe Statutes as is herein after mentioned.
Between the Common Law of England, and the Civil Law, there ſeems to be Diviſum Imperium; For in the Sea ſo far as the Low Water mark is counted Infra Corpus Comitatus adjacentis, and Cauſes there ariſing determinable by the Common Law: yet when the Sea is full, the Admiral hath Juriſdiction there alſo (ſo long as the Sea Flows) over Matters done between the Low Water mark, and the Land, as appears in Hen. Conſtables Caſe, Coke's 5 Rep. fol. 107.
But for theſe Limitations, and Juriſdictions of the Court of Admiralty, ſee the Statutes above mentioned, And the Statute of 13 R. 2. & 15 R. 2. & 27 Eliz. cap. 11. Coke's 4 Inſt. cap. 22.
295And for regulating his Majeſties Navies, Ships of War, and Forces by Sea, Vide le Statute of 13 Car. 2. cap. 9.
And now as pertinent hereunto, we ſhall ſay ſomewhat of
THe Treaſurer is to Receive out of the Exchequer by Warrant from the Lord High Treaſurer of England, and pay all charges of the Navy by Warrant from the principal Officers of the Navy, his Salary is 220 l. 13 s. 4 d. beſides 3 d. in the pound of all Moneys paid by him.
The Comptroller of the Navy, who is to Attend and Comptrol all Payment of Wages, To know the Market Rates of all Stores belonging to Shipping, To Examine and Audit all Treaſurers, Victuallers, and Store-keepers Accompts, &c. his Salary 500 l. per Annum.
The Surveyor of the Navy, whoſe Office is generally to know the State of all Stores, and ſee the wants ſupplied, to find Hulls, Maſts, and Yards, and Eſtimate the value of Repairs, by Indenture to charge all Boat-ſwains, and Carpenters of his Majeſties Navy, with what Stores they receive, and at the end of each Voyage to State296 and Audit their Accompts, his Salary 490 l.
The Clerk of the Acts is to Record all Orders, Contracts, Bills, Warrants, and other Tranſactions, by the Principal Officers and Commiſſioners of the Navy.
The Commiſſioners of the Navy, whoſe Office is as above ſpecified, and Salary to each is 500 l. yearly.
Two other Commiſſioners to be at Portſmouth, and Chatham, always in readineſs to give Orders for better Management of his Majeſties Affairs in his Yards, and Store-houſes; Salary to each 350 l.
Each of theſe Officers above-named, have Two Clerks and ſome more, all paid by the Treaſurer of the Navy: All hold their Places by Patent from the King, and moſt of them during pleaſure.
The King hath for his Navy Royal, and Stores, Four Great Yards or Store-Houſes, (viz.) at Chatham, Deptford, Woolwich and Portſmouth, where his Ships are built, Repaired, and Laid up, after their Voyage. In which Yards are employed Divers Officers, of which Six are principal; The Clerk of the Check, Salary about 180 l. per Annum; Store-Keepers, Salary 286 l. per Annum, Maſter Attendants, Two at Chatham 100 l.297 per Annum; Maſter Shipwright, Salary about 113 l. per Annum; Clerk of the Comptooll 100 l. per Annum; Clerk of the Survey 140 l. per Annum; The Charges of their Clerks, and Inſtruments are included in their Salaries.
His Majeſty hath Divers Rope-Yards, as at Chatham, Deptford, VVoolwich and Portſmouth; where are made the Cable, and Cordage for his Navy.
In time of War the King hath a Yard at Harwich, where out of War is continued An Officer at 100 l. yearly.
This whole Navy Office is govern'd by The Lord Admiral, whoſe Lieutenant Admiral hath Salary 20 s. per diem, and 10 l. per Menſem for each Servant, whereof he is allowed 16.
The Lord Admiral's Secretary hath a Salary from the King of 500 l. per Annum.
All the Under Officers, as well thoſe in Yards, as thoſe belong to Ships, hold their Places by Warrant from The Lord High Admiral of England.
The Ordinary Charge of the King's Navy in time of Peace is ſcarce 70000 l. per Annum, beſides the Building of Ships, Setting out Fleets, &c. which ſome years even in Peaceable Times amounts to 12 or 1300000 l. more, as may eaſily be computed.
THis Court muſt be held coram Admirallo Angliae ſeu ejus Locum tenente, and Three or Four ſuch other ſubſtantial Perſons as ſhall be Named by the the Lord Chancellor.
Their Juriſdiction is to hear and determine all Treaſons, Felonies, Robberies, Murders, and Confederacies, committed or done upon the Sea, &c.
Theſe Offences ſhall be heard, and determined according to the Common Law; and therefore ſome of the Judges of the Realm are ever in Commiſſion.
The Miſchief before making this Statute you may ſee Co. 3 Inſt. cap. Piracy, Vide Co. 4 Inſt.
A Port-Mote, is a Court kept in Haven Towns, or Ports, and thereof taketh his Name Curia Portus.
Portus à portando, Eſt locus in quo Exportantur & Importantur Merces; and they are Portae Regni, The Gates of the Realm. Hitha, and Heda, often in Doomſday is taken for a Haven, or Port, anciently written299 Hafne, and now Haven, and hereof cometh Queen-Hith in London, and Lambhith.
Every Haven is within the Body of the County, whereof ſee more in Coke's 4th Inſtitutes, Court of Admiralty, and the Statute of 43 Eliz. cap. 15.
BEacon is from the Saxon Bechan, which is Signum dare, and we uſe the word to Becken at this day.
Before Edward the Third they ſet Stacks of Wood in High Places; but in his time Pitch Boxes, as now they be, were ſet up, and this is properly called a Beacon.
Light-Houſes, Ignes Speculatorij ſeu Lumen Maritimum, are properly to direct Sea-faring Men in the Night when they cannot ſee Marks, and theſe alſo Signa ſpeculatoria ſui Pharus, unde Verſus.
Lumina Noctivagae tollit Pharus aemula Lunae.
Sea-Marks, as Steeples, Churches, Caſtles, Trees, and ſuch like for direction300 of Seafaring Men in the Day time, are called ſigna Marina, or Speculatoria, or ſigna Nautis; whereof Virg. 5 Aeneis,
At the Common Law none could Erect any of theſe Three, but the King; It being done ever by the King's Commiſſion under the Great Seal; But of later times by Letters Patents to the Lord Admiral, he hath power to Erect the ſame.
By the Act of 8 Eliz. the Maſter, Wardens, and Aſſiſtants of Trinity-Houſe of Deptford Stroud (a Company of the chiefeſt and moſt expert Maſters and Governours of Ships) ſhall and may lawfully from time ▪ to time, at their will and pleaſure, and at, their coſts, Make, Erect, and Set up ſuch, and ſo many Beacons, Marks and Signs for the Sea in the Sea-ſhoars and Upland places near the Sea-coaſts, or Forelands of the Sea, only for Sea Marks, as to them ſhall ſeem moſt meet, whereby the Dangers may be avoided, and Ships301 the better come to their Ports: And all ſuch beacons, Marks, and Signs ſo by them to be Erected, ſhall be continued, renewed, and maintained from time to time, at the Coſts and Charges of the ſaid Maſter, Wardens, and Aſſiſtants.
If any cut down, &c. any Beacon, &c. by the Statute of 8 Eliz. 13. he ſhall incur the Penalty therein mentioned; which if he be not able to pay, he ſhall be ipſo facto convict of Utlawry.
Vide Coke's 4. Inst. cap. 25. The Tranſcript of a Manuſcript. Ordination, which hath been obſerv'd for Watch to be kept in the County of Norfolk from Lyme to Yarmouth; and it is very probable the like hath been done by like Authority in other Maritime Counties. Vide Stat. 5 H. 4. cap. 3. Watches to be made in the Sea Coaſts in places of Danger through the Realm, by the Number of People, and in manner they were wont to be made in times paſt.
BY 2 H. 5. Conſervatorum Induciarum & ſalvorum Regis conductuum was Praiſed, and Appointed in every Port of the Sea by Letters Patents; His Office was to Inquire of all Offences done againſt the King's Truces, and fafe Conducts upon the Main Sea (out of the Counties, and out of the Liberties of the Cinque-Ports) as Admirals of Cuſtom were wont.
It concerns the Juriſdiction of divers Courts, eſpecially the Court before-mentioned upon the Statute of 28 H. 8. and of the Court of Admiralty, to know the Rights of Leagues and Ambaſſadors, as far as the Laws of England Extend unto.
All Leagues, or Safe Conducts are, or ought to be of Record Inrolled in Chancery, that the Subject may know who may be in Amity with the King, and who not; who be Enemies, and can have no Action here, and who in League, and may have Actions Perſona•here.
In all Treaties, the Power of the one and the other ought to be Equal.
303A League may be broken by Levying of War, or by Ambaſſador, or Herald.
Bryan 19 E. 4. held, if all the Subjects in England would make War with a King in League with the King of England, without the Aſſent of the King of England, yet ſuch a War was no breach of the League. See 2 H. 5. cap. 6. in the Preamble.
But in the Duke of Norfolk's Caſe, 14 Eliz. the Queſtion was, Whether the Lord Heriſe, and other Subjects of the King of Scots, who without his Conſent had waſted and burnt divers Towns in England, and Proclaimed Enemies, were Enemies in Law within the Statute of 25 E. 3. the League being between the King and Scotland, and Reſolved they were Enemies.
And in the Biſhop of Roſſe's Caſe, Anno 13 Eliz. The Queſtion being, An Legatus qui Rebellionem contra Principem ad quem Legatus concitat Legati, Privilegiis gaudeat, & non ut Hoſtiis Poenas ſubjaceat; and Reſolv'd he had loſt the Priviledge of an Ambaſſador, and was ſubject to Puniſhment.
Ambaſſadors were called Orators afterwards Legati à legando, Nuntij à n•nciando; and afterwards Ambaſſiatores, or Embaſſatories and, ſometimes Agents.
In Sam. Palach's Caſe, 12 Jac. 1. affirming himſelf to be Ambaſſador of Mula Sedan, King of Morocco, mentioned Coke's 4 Inst. cap. 26. It was Reſolv'd there could be no Ambaſſador without Letters of Credence from his Sovereign to another who had Sovereign Authority; and although in his Letters of Credence he be termed an Agent, or Nuntius, yet in ſuch Caſe he is Ambaſſador or Legate. And it was likewiſe Reſolv'd, That Ambaſſadors ought to be Free, and Safe in every place by the Law of all Nations; yea, although they be Ambaſſadors of our Enemies, or a Baniſh'd Man be ſent to the place from whence he is baniſh'd. And in the Caſe of Cardinal Poole, fled to Rome from Henry the Eighth, the Pope ſent him Ambaſſador to the French King; the King of England Demandeth him (as a Traytor) from the King, notwithſtanding he was ſent Ambaſſador; ſed non praevaluit.
But if a Sovereign Ambaſſador, being Prorex, committeth here any Crime which is contra jus G•ntium, as Treaſon, Murder, Adultery, &c. he may be puniſhed as another private Alien, and not remanded to his Sovereign but of305 Courteſie: And ſo of Contracts that be good Jure Gentium he muſt anſwer here; but if any thing be Malum prohibitum by an Act of Parliament, Private Law, or Cuſtom of this Realm, which is not Malum in ſe Jure Gentium, nor contra Jus Gentium, an Ambaſſador reſiding here ſhall not be bound by them; but otherwiſe it is of the Subjects of either Kingdom. Vide Information upon the Statute of 19 H. 7. cap. 1. Coke's 4 Inst. cap. 26. concerning Prohibited Goods brought hither. See more in Palach's Caſe, Where one may not be Indicted of Piracy, for taking the Goods of the Subjects of an Enemy Prince, ſolo Amici, and where The Court of Admiralty ſhall have the Juriſdiction, and where not. And now a word or two concerning
Leagues, of which are four kinds: I. Foedus Pacis, and that a Chriſtian Prince may have with an Infidel, Si fieri poſſit quod ex vobis est, cum omnibus hominibus Pacem habeatis; 2. Foedus Congratulationis, ſive Conſolationis. And this a Chriſtian Prince may make with an Infidel, as David did with Hanon, I Chron. 19.2. 3. Foedus Commercij, ſive Commutationis Mercium. And this alſo may be made with an Infidel, as King Solomon did with Hiram, and Joſhua306 did with the Gibeonites. 4. Foedus Mutu•Auxilij. And this cannot be done with an Idolater, Jehoſaphat King of Judah made Foedus mutui auxilij with Ahab King of Iſrael, an Idolater: For Ahab ſaid to Jehoſaphat, Veni mecum in Ramoth Gilead; cui ille reſpondet, Ut ego & tu, & ſicut populus tuus ſic & populus meus tecum erimus in Bello. In which War Ahab was ſlain, and Jehoſaphat in extream danger.
But ſeeing Foedus Pacis, and Foedus Commercij may be with an Infidel, Pagan, and Idolater, and thoſe Leagues are eſtabliſhed by Oaths, whether the Infidel or Pagan may Swear by Falſe Gods, ſeeing he thereby offendeth the True God by giving Divine Worſhip to Falſe Gods. St. Auſtin moved by Publicola reſolveth, That he who taketh the Credit of him that ſweareth by Falſe Gods, not for any Evil but Good, doth not joyn himſelf that Sin of Swearing by Devils, but is partaker of thoſe Lawful Leagues wherein the other keepeth his Faith, and Oath: But if a Chriſtian ſhould any way induce another to Swear by them, herein he ſhould grievouſly ſin; And the League in theſe Caſes is warranted by the Word of God, Et per Praxin Sanctorum in Sacra Scriptura,307 all incidents thereunto are permitted.
In ancient time no Ambaſſador came into this Realm before he had Safe Conduct: For as no King can come in without the King's Licenſe, or Safe Conduct; ſo no Prorex, &c. which repreſenteth a King's Perſon can do it. For Safe Conducts ſee the Writs in the Regiſter, and the Statute of the 15th, 18th and 20th of Henry the 6th, with all Incidents thereunto. King Henry the 7th, that Wiſe King, would not in all his time ſuffer Lieges Ambaſſadors of any Foreign King or Prince within his Realm, nor he any with them; but upon occaſion uſed Ambaſſadors.
Every Ambaſſador ought to have Four Qualities,
And of him another ſaith,
The difference between a League, and Truce is, that a Truce is a Ceſſation from War for a certain time; A League is, a perfect ſtriking of Peace.
308It's ſaid 9 E. 4. That a League between Two Kings, without naming of Succeſſors, doth not extend to Succeſſors; notwithſtanding by our Law, Rex non intermoritur.
See more of this, and Ambaſſadors to the Pope and General Councils, &c. Co. 4 Inſt. cap. 26.
IS a Monarchy, or Common-wealth within a Monarchy, conſiſting of Eccleſiaſtical, Civil, and Military Perſons, and Government. And for
IS a Dean of the King's Chappel, choſen by the King, and acknowledgeth no Superiour but the King: For as the King's Palace is Exempt from all Inferiour Temporal Juriſdiction, ſo is his Chapel from all Spiritual; His Fee is 200 l. per Annum, and a Table. And,
By the Dean are choſen all other Officers, (viz.)
A Sub-Dean, or Praecentor Capellae, Fee 100 l.
309Thirty Two Gentlemen of the Chappel, whereof Twelve are Prieſts, and one of them is Confeſſor to the Houſhold, whoſe Office is to Read Prayers every Morning to the Family, to Viſit the Sick, to Examine, and prepare Communicants, to Inform ſuch as deſire Advice in any caſe of Conſcience, or point of Religion, &c.
The other Twenty Gentlemen, called Clerks of the Chappel, are with the aforeſaid Prieſts, to perform the Office of Divine Service, in Praying, Singing, &c. One of theſe being well skilled•n Muſick is Maſter of the Children, whereof there are Twelve in Ordina•y, To inſtruct them in the Rules and Art of Muſick for ſervice of the Chappel; Three other of the ſaid Clerks•re Organists, to whom upon Sundays, Collardays, and other Holydays, are•oyned the Sack-Buts and Cornets, be•onging to the King's private Muſick. Their Fee to each is 70 l. per Annum.
Four Vergers, ſo called from the Silver Rods they carry in their Hands; Alſo a•erjeant, a Yeoman, and a Groom of the Chappel.
310The King hath alſo his Private Oratory, where ſome of his Chaplains read Divine 8ervice unto him on Workingdays every Morning and Evening.
Twelve principal Feaſt-Days in the Year are called Offering-Days, viz. Christmas, Eaſter, Whitſunday, and All Saints, called Houſhold-Days, upon which the Beſant or Gold to be Offered is delivered to the King by the Lord Steward, or ſome other of the principal Officers; then New Years-Day and Twelfth-Day, upon the latter of which are offered Gold, Frankinſence, and Myrrh in ſeveral Purſes. Laſtly, Candlemaſs, Annunciation, Aſcenſion, Trinity Sunday, St. John Baptiſt, and Michaelmas-Day, when only Gold is offer'd. Theſe Offerings made by the King to God (In Signum Speciale Dominij) after Divine Service, or at the Offertory, he being attended by the Principal of the Nobility, with their Collars of the Garter, did anciently belong to the Archbiſhop of Canterbury's Diſpoſal; But now are to be Diſpos'd by the Dean of the Chappel amongſt the Poor.
The Lord High Almoner, who is the Biſhop of London for the time being, diſpoſeth of the King's Alms; and beſides all Money allowed by the King,311 hath all Deodands and Bona Felonum de ſe for that purpoſe. And under him is
A Sub-Almoner, Two Yeomen, and Two Grooms of the Almonry. The High Almoner hath no Fee, his Sub-Almoner hath Fee 6 l. 6 s. 10 d.
The Clerk of the Cloſet, or Confeſſor to His Majeſty, who is to attend at the King's Right Hand during Divine Service, to Reſolve all Doubts concerning Spiritual Matters, to wait on His Majeſty in his private Oratory, or Cloſet, and his Fee is Twenty Nobles. And there is
A Keeper of the Cloſet, whoſe Fee is 5 l. per Annum. The King hath alſo
Forty Eight Chaplains in Ordinary, (beſides the Extraordinary) who wait by Turns, Four every Month.
Anciently at Court were Sermons in Lent only, and that in the Afternoons in the open Air by Biſhops, Deans, or principal Prebendaries: And them alſo appointed by the Archbiſhop of Canterbury. Now on Aſhwedneſday in the Morning begins the Dean of the Chapel to Preach, on each Wedneſday after one of the Chaplains. Every Friday the Dean of ſome Cathedral, or Collegiate Church. On Good Friday the Dean of Weſtminſter; on every Sunday312 a Biſhop, and on Palm Sunday an Archbiſhop, On Eaſter-day the Lord High Almoner.
THe Lord Steward, is the Chief Officer of the King's Houſhold, to whom is committed the State of the King's Houſe, and all his Commands in Court to be obey'd; He hath Authority over all, except thoſe of his Majeſties Chappel, Chamber and Stable.
He is a White Staff Officer, and by his Office without any other Commiſſion Judgeth of all Treaſons, Felonies, Bloodſheds, within the King's Houſe, or within the Verge, which is 12 Miles round the Tunnel of the Court (only London by Charter is Exempted.) And this Juriſdiction of the Verge, hath from ancient time been executed by the Lord Steward with great Ceremomony, in the nature of a peculiar King's Bench, and that not only within, but without the King's Dominions.
The Lord Chamberlain is the next Officer, who hath Overſight of all the Officers belonging to the King's Chamber; except the Precincts of the King's313 Bed Chamber, which is wholly under the Groom of the Stole, and all above Stairs, who are all Sworn by him (Or by his Warrant to the Gentlemen Uſhers to the King) Hath the Overſight of all the Officers of the Wardrobes, at all his Majeſties Houſes, and of the removing Wardrobes, of the Tents, Revels, Muſick, Comedians, Hunting, Meſſengers, Trumpetters, Drummers of all Handicrafts, and Artiſans, Heralds, Purſuivants, Serjeants at Arms, Phiſicians, Apothecaries, Chyrurgeons, Barbers, &c. and Chaplains, although himſelf be a Layman; Alſo the charges of Coronations, Marriages, Entries, Cavalcades, Funerals, &c. His Fee is 100 l. yearly, and 16 Diſhes each Meal, with the Appurtenances; And moſt of the Places before mentioned are in his Gift or Diſpoſal.
The Maſter of the Horſe, is the Third Great Officer, And hath now the ordering of the King's Stables, and Races and Breed of Horſes, and hath Power over Eſcuries and Pages, over Footmen, Grooms, Riders of the Great Horſe, Farriers, Smiths, Coachmen, Sadlers, and all other Trades working to the King's Stables; To all whom he (or by his Warrant the Avenor) giveth an314 Oath to be True and Faithful: He hath the charge of all Lands, and Revenues appointed for the King's Breed of Horſes, and Charges of the Stable, and for Litters, Coaches, Sumpter horſes, &c. He only hath priviledge to make uſe of any Horſes, Pages, or Footmen, belonging to the King's Stables. At Solemn Cavalcades he Rides next the King, and leads a Leer Horſe of State; His Fee is 666 l. 16 s. 4 d. yearly, And a Table of 16 Diſhes each Meal.
Under theſe Three principal Officers of his Majeſties Houſhold, are almoſt all other the Officers and Servants.
SO called becauſe Accompts for all Expences of the King's Houſhold are there daily, The Lord Steward, The Treaſurer of the Houſhold, The Comptroller, The Cofferer, The Maſter of the Houſhold, The Two Clerks of the Green Cloth; And the Two Clerks Comptrollers, who alſo make Proviſions for the Houſhold according to the Law of the Land, and make Payments, and Orders for well Governing of the Servants of the Houſhould.
315And the Cofferer is to pay the Wages of the King's Servants below Stairs, and the Lord Chamberlain above Stairs, Vide 39 Eliz. cap. 7. And he is accomptable in the Exchequer for about 40000 l. And in the Compting Houſe is.
SO called of the Green Cloth whereat they ſit, and is compoſed of the Perſons laſt above mentioned, whereof the Three firſt are uſually of the King's Privy Councel.
To this Court being the firſt and moſt ancient Court of England, is committed the Overſight of the King's Court Royal, for Matters of Juſtice and Government, with Authority for maintaining the Peace within Twelve Miles diſtance, whereſoever the Court ſhall be, and within the King's Houſe, the Power of correcting all the Servants therein that ſhall any way offend.
The Treaſurer of the King's Houſhold, in the abſence of the Lord Steward, hath Power with the Comptroller, and Steward of the Marſhalſea, to Hear and Determin Treaſons, Felonies, and other Inferiour Crimes committed within316 in the King's Palace, and that by Verdict of the Houſhold; He bears a White Staff, and his yearly Fee is 124 l. 14 s. 8 d. And a Table of 16 Diſhes each Meal.
The Comptrollers Office, is to Comptrol the Accompts, and Reckonings of the Green Cloth; and his yearly Fee is 107 l. 12 s. 4 d. And bears a White Staff, and hath 16 Diſhes each Meal.
The Cofferer is a principal Officer, and hath ſpecial charge over other Officers of the Houſe for their good Demeanor and Carriage, and is to pay the Wages to the King's Servants, and for Proviſions by the Direction of the Green Cloth; He hath a Fee of 100 l. yearly, and a Table of 7 Diſhes daily.
The Maſter of the Houſhold is the next Officer, who is to Survey the Accompts of the Houſe; His Fee 100 Marks, and 7 Diſhes daily.
Two Clerk's Comptroller's are to Tolt and Allow all Bills of Comptrolment, Parcels, and Brievements. And the
Two Clerk's of the Green Cltth are to Sum them up; And the Fee to each of theſe Four Clerks is, 48 l. 13 s. 4 d. And between them, Two Tables of 7 Diſhes to each Table.
317The reſt of the Compting Houſe, being leſs conſiderable we paſs over, And come to give a brief Accompt of the Officers, or perſons in the ſeveral Offices. As firſt in the
Acatery is a Serjeant, a Clerk, Purveyors, Yeomen, In all Twelve.
Poultry a Serjeant, a Clerk, Yeoman, Grooms, Purveyors, in all Ten.
Bakehouſe a Serjeant, Clerk, Yeomen, Grooms, and Pages, in all Eighth.
Woodyard, a Serjeant, a Clerk; Yeomen, Grooms, and Pages, in all Eight.
Scullery a Serjeant, a Clerk, Yeomen, Grooms, and Pages, in all Twelve.
Lardour a Serjeant, Clerk, Three Yeomen, Three Grooms, Two Pages.
Paſtry a Serjeant, a Clerk, Yeomen, Grooms, and Children, in all Eleven.
Pantry a Serjeant, a Yeomen, Grooms, Pages.
Cellar a Serjeant, a Gentleman, Yeomen, Grooms, Purveyors, Pages, in all Twelve.
Buttery a Gentleman, Yeoman, Grooms, Pages, Purveyors, in all Eleven.
318Pitcher-houſe a Yeoman, Grooms, Page, and Clerk, in all Five.
Spicery Three Clerks, and a Grocer.
Chandlery a Serjeant, Two Yeomen, Two Grooms, and a Page.
Wafery a Yeoman, and a Groom.
Confectionary a Serjeant, Two Yeomen a Groom, and a Page.
Ewry a Serjeant, a Gentleman, Two Yeomen, a Groom, and Two Pages.
Laundry a Yeoman, a Groom, Three Pages, and a Draper.
Kitchen Three Clerks to the King, and Two to the Queen; The chief of theſe Clerks hath a Fee and Diet equal to an Officer of the Green Cloth; A Maſter Cook to the King, A Maſter Cook to the Queen, A Maſter Cook to the Houſhold, each of theſe Three a Table of 5 Diſhes, Six Yeomen, Seven Grooms, Five Children, in all Twenty ſix Perſons.
Boyling Houſe a Yeoman, Two Grooms.
Scalding Houſe Yeoman, Grooms, and Pages, in all Six.
Harbingers Office, a Knight, Three Gentlemen, and Seven Yeomen Harbingers; The Knight Harbingers Office, is by Letters Patent under the Great Seal of England during Life, So oft as319 the King goes broad either in England or beyond Seas; He doth by himſelf or his Deputy provide and appoint all Lodgings and Harbingage for all Great Perſons. All Noblemen, Biſhops; All his Majeſties Servants, and Attendants, and for all other his Liege People, for Ambaſſadors, and Foreigners, &c. His Salary 20 Marks per Annum. and 10 s. per diem. Out of the Exchequer, beſides Fees for Honour given by the King, and Homage done to his Majeſty and divers other Perquiſites.
Porters at Gate, a Serjeant, Two Yeomen, Four Grooms, Clerks of the Carriage, Two Yeomen Cart Takers, Six in Number, Surveyors of the Dreſſer Two, one above Stairs and another below; Marſhals of the Hall Four, Sewers of the Hall Five; Waiters of the Hall Twelve, Meſſenger of the Compting Houſe One; Bellringer One; Long Cart Takers Four; Wine Porters Eight; Woodbearer One; The Cock of the Court One.
Beſides the aforeſaid Officers b•low Stairs, there are alſo under the Lo•d Steward, all the Officers belonging to the Queens Kitchin, Cellar, Pantry, &c. And to the Kings Privy Kitchin; and to the Lords Kitchin together with320 Children, Scourers, Turnbroachers, &c. In all Sixty eight.
Theſe Officers according to their Degrees, are named Lords, Knights, Eſquires, Serjeants, Gentlemen, Clerks, Yeomen, Grooms, Pages, or Children, and theſe Succeed each other, as they Outlive thoſe next Degree above them.
As likewiſe from the Paſtry to the Acatery, as the Clerk of one Office dies the next ſucceeds; And as the Clerk of the Avenary, Spicery, or Kitchin dies; The Clerk of the Acatery ſucceeds, and from thence to be one of the Clerks Comptrollers; Then Clerk of the Compting Houſe; Then Maſter of the Houſhold; Laſtly Cofferor of the Houſhold, Higher than which he cannot riſe by Succeſſion.
Although the King pays but the ancient Fees, which at firſt were above Ten times the value; Yet the perquiſites in many Offices make ſometimes a place of 10 l. worth near 500 l. per Annum.
CAlled Mareſchallus Hoſpitij Regis, hath Juriſdicton and Cognizance of all Crimes within the Royal Palace, where one of the Parties is the Kings Servant; He is one of the Judges of the Court called,321 The Marſhalſea, or Marſhals Seat of Judicature, which is held in Southwark, and hath a Priſon belonging to the ſame. Upon Solemn Occaſions he Rides before the King with a Short Baſton, Tipt at both Ends with Gold, and hath Six Provoſt Marſhals, Or Virgers in Scarlet Coats to wait on him, and to take care of the Royal Palace, That no Beggars, Vagabonds, Common Whores, Malefactors, &c. come within or near: And now we are led to ſpeak of the Marſhals Court before mentioned. And called.
THis is an ancient Court of Record, Ordained to determine Suits between thoſe of the King's Houſe, and others within the Verge.
The Judges are the Steward and Marſhal of the King's Houſe, who have Cognizance of all manner of Pleas of Treſpaſs within the Verge, ſo as either party be of the ſame Houſe; and of all other Actions perſonal wherein both Parties are the King Servants, and this is the proper Juriſdiction of the Marſhal's Court. And a Man ſhall have Amercement in an Action brought againſt him in the Court of the Steward322 and Marſhal, when he is not of the Kings Houſe, when the Treſpaſs or Contract was made, or when the Plaintiff was not of the Kings Houſe at that time, F. N. B. 141.
Error in this Court, for that neither of the parties was of the Kings Houſe at the time of Suit brought, or for that it is not ſhewn, that the Plaintiff nor Defendant were of the Kings Houſe at that time or afterward, and every other Cauſe of Errour there, ſhall be amended in the King's Bench, 5 & 10 E. 3. c. 3. And having taken ſome ſhort remarks upon the Marſhalſey we come next to
CUria Palatij was Erected by King Charles the Firſt, By his Letters Patents dated the 2d of July, Anno Regni ſui ſexto; And made a Court of Record, called the Court of the Kings Palace at Westminſter, For the Tryal of all Perſonal Actions between Party, and Party; The Liberty whereof extends 12 Miles round Whitehal, which Juriſdiction was confirmed by King Charles the Second.
323The Judges of this Gourt are the Stewards of the Kings Houſe, and Knight Marſhal for the time being, and the Steward of the Court, or his Deputy, being always a Lawyer.
This Court is kept every Fryday in th Court Houſe on St. Margarets-Hill in Southwark, and may be held in any place within the Juriſdiction.
The Proceeding is by Capias or Attachment, which is to be ſerved upon the Defendant by one of the Knights Marſhals Men, who taketh Bond with ſuch Sureties for the Defendants Appearance at the next Court as he will be anſwerable for; The Proceſs may may be had at ſeveral places within the Liberty of the Court, appointed by the Steward which every Marſhals Man can help you to.
The Defendant upon Appearance muſt put in Bail to Anſwer the Condemanation of the Court, which if he neglect to do, the Plaintiff may have the Bond for appearance aſſigned over to his uſe.
The next Court after Ball put in, The Plaintiff ought to Declare, and ſet forth the cauſe of his Action, and ſo afterwards proceed to Iſſue and Trial by Jury, according to the courſe324 of the Common Law, and that in Four or Five Court days.
They hold Pleas of all manner of Perſonal Actions; as Debt, Treſpaſs, Battery, Slander, Trover, and all Actions of the Caſe, &c. But uſually, if the Cauſe be conſiderable as (above Five pound) they carry the Cauſe away by an Habeas Corpus cum cauſa into the King's Bench, or Common-Pleas.
The Fees of the Palace Court, or Marſhalſea, as granted by the Letters Patent, You may ſee at large in the Compleat Sollicitor.
THey, or any of them have Authority to Inquire by 12 Sad Men, and Diſcreet Perſons of the Cheque Roll; If any Servant in the Cheque under the State of a Lord make any Confederacies, Compaſſings, Conſpiracies, or Imaginations with any Perſon, or Perſons to Deſtroy or Murder the King; Or any Lord of this Realm; Or any Perſon Sworn to the King's Councel; Or the Steward, Treaſurer or Comptroller of his Houſhold,325 And if it be found, then to be put to Tryal by 12 other Sad Men of the Houſhold, and no Challenge to be allowed but for Malice; And if they are found guilty, then to be adjudged Felony, Vide le Statute, 3 Hen. 7. cap. 14.
THey, or Two of them, whereof the Steward of the Marſhelſea to be One, by vertue of their Offices without any Commiſſion, Have Authority by the Act of 33 Hen. 8. cap. 12. The ſaid Steward of the Marſhalſea being from time, to time appointed by the Lord Great Maſter, or Lord Steward for the time being; And whether the King be removed from his Palace Houſe, or Houſes, or not removed before ſuch Offence, Inquired of, Tryed, Heard, and determined, the ſaid Officers ſhall have a power to Inquire by Verdict of the King's Houſhold-Servants within the Cheque Roll, of all Perſons ſlain within the King's Houſe, or where he ſhall abide, before the326 Coroner of the King's Houſhold, And all Officers named in the Act upon Precept to them have Power to Summon 24 Perſons, Yeomen of the Houſhold, to Enquire of Treaſons, Miſpriſions of Treaſons, Murders, Manſlaughters, or other Malicious Strikings where Blood is, or ſhall be ſhed againſt the King's Peace; Upon the Preſentment, Inquiſition, or Indictment found and certified by the Coroner, The Judges, or Two of them, (whereof the Steward of the Marſhalſea to be one) ſhall make another Precept to the Clerks, and other Officers of the Houſhold, who have thereby power to warn another Jury of 24 Gentlemen of the King's Chamber, and other Servants of the Houſhold at a Day, Place; and under a pain therein appointed, to appear (whereof the Judges or Officers before whom they ſhall be returned, ſhall cauſe 12 without Challenge to be allowed, (except for Malice) To try the Offenders, and if they are Found Guilty of Treaſon, Murder, or Manſlaughter, they ſhall have Judgment of Life, and Member, and other Forfeitures as if Tried by the Common Laws of the Realm; If Guilty of Strking whereby Bloodſhed, Then to have his Right hand ſtricken off, Impriſonment327 during Life, and Fine and Ranſom at the Kings Pleaſure, The Execution to be done in the Solemn manner by the Act directed.
A Cryer, to be appointed from time to time to call Juries, make Proclamations, and do other things belonging to the Cryer of the Court.
The Coroner to be appointed from time, to time by the Lord Steward.
Tryal of Peers, as hath been uſed.
The Priviledges, and Authorities of the Marſhalſea Court within the Verge ſaved.
The Limits and Bounds of the ſaid Houſe or Houſes, to be for theſe offences within all the Edifices, Courts, &c. within the Porters Ward, or within 200 Foot of the Standard of any Gate or Gates of the ſaid Houſes.
This Act extends not to any Nobleman, or other Perſon that ſhall Strike to correct his Servants, or any of the Councel, or other Head Officers Striking with their Hand, of ſmall Strick in Executing their Office.
To Steal the Kings Goods, or entring his Houſe to Steal, ſhall be Felony, Vide le Statute at large.
THe Groom of the Stole, (that is, according to the Greek, from whence the Latin and French derive it) Groom, or Servant of the Robe, or Garment; he having the Honour to preſent, and put on His Majeſties firſt Garment or Shirt every Morning, and to order things of the Bed-chamber.
The Gentlemen of the Bed-chamber, conſiſting of the prime Nobility of England; Their Office in general is, To Wait a Week in every Quarter by, Turn in the King's Bed-chamber, there to lye by the King in a Pallat-Bed all Night, and in the abſence of the Groom of the Stole to ſupply his place. Moreover they Wait on the King when he eats in private; for then the Cup-bearer, Carver, and Sewers do not Wait. The Fee to each is 1000 l.
Of theſe are Fourteen, or more; Then there is The Vice-Chamberlain, The Keeper of the Privy-Purſe, Treaſurer of the Chamber: He pays Riding, and Lodging Wages, as the Lord Chamberlain ſhall direct.
329The Maſter of the Robes belonging to His Majeſty's perſon, who is to have the ordering of all His Majeſty's Robes; as thoſe of Coronation, St. George's Feaſt, Parliament, and of all His Majeſty's Wearing Apparel; of his Collar of Eſſes, Georges, and Garters beſet with Diamonds and Pearls.
Grooms of the Bed chamber ought to be Twelve, theſe are to be under the Degrees of Knights: Their office is to Attend in the King's Bed-chamber, to Dreſs and Undreſs the King in private, and the yearly Fee to each is Five hundred pounds.
Pages Six, whereof one is Keeper of the King's Cabinet Cloſet.
Gentlemen Uſhers of the Privy-chamber; Theſe Wait one at a time in the Privy Lodgings, &c. and are Four.
Gentlemen of the Privy Chamber in Ordinary, Forty eight Quarter-Wainters by Turns; Their office is Twelve every Quarter to Wait on the King's Perſon within Doors, and without, ſo long as he is on Foot; and when the King eats in the Privy Chamber they wait at the Table, and bring in his Meat: they Wait alſo at Reception of Ambaſſadors, and every Night lye Two of them in the King's Bed-chamber.
330A Gentleman of the Privy Chamber by the King's Commandment only, without any written Commiſſion, is ſufficient to Arreſt any Peer of England, as Cardinal Woolſey acknowledged; Theſe wear Cloak, and Sword.
Grooms of the Privy Chamber in Ordinary, Six, all Gentlemen of Quality. Theſe (as all Grooms) wait without Sword, Cloak, or Hat.
Gentlemen Uſhers, daily Waiters in the Preſence Chamber, Four; The Firſt whereof hath that conſiderable Office of the Black Rod, and in the time of Parliament is to attend every day the Lord's Houſe, and is alſo Uſher of the moſt Honourable Order of the Garter. Their office is to wait in the Preſence Chamber, and to attend next to the King's perſon, and after the Lord Chamberlain, and Vice Chamberlain to order all Affairs, and all Under Officers above Stairs, are to obey theſe.
Gentlemen Uſhers, Quarter Waiters in Ordinary, Eight; Theſe wait alſo in the Preſence Chamber, and are to give Directions (in the abſence of the Gentlemen Uſhers, Daily Waiters) to the Grooms and Pages, and other Under Officers.
331Gentlemen Waiters, Six; Cupbearers, Five; Carvers in Ordinary, Four; Sewers to the Perſon in Ordinary, Four.
Eſquires of the Body in Ordinary, Six; Their office is to Guard the King's Perſon by Night, to Set the Watch, and give the Word, and keep good Order in the whole Houſe by Night, as the Lord Chamberlain, and his other Officers, are to do by Day.
The Sewers of the Chamber, are Eight.
Groom Porter; his Office is to ſee the King's Lodgings furniſhed with Tables, Chairs, Stools, and Firing; To furniſh Cards, Dice, &c. To decide Diſputes ariſing at Cards, Dice, Bowlings, &c.
Serjeants at Arms, Sixteen; all Gentlemen, or Knights, attending upon His Majeſty. There are alſo Four other Serjeants at Arms, whereof one attends the Lord Preſident of Wales, another the Speaker of the Houſe of Commons, and another the Lord Lieutenant of Ireland ▪
Phyſicians in Ordinary, Four; one aſſigned to the Queen, and one to the Houſhold; beſides Twelve more, who are not the King's ſworn Servants, nor have Fee.
332Maſter and Treaſurer of the Jewel-Houſe, and Three Under Officers called Yeomen and Grooms; Their office is to take charge of the Gold, or Silver Gilt, Plate for the King and Queens Table, of all Plate in the Tower, of Chains and looſe Jewels not fixed to any Garment.
The Maſter of the Ceremonies Fee 200 l. One Aſſistant Fee 120 l. and One Marſhal.
One Geographer, One Historiographer, One Hydrographer, One Library Keeper, One Poet Laureat, One Publick Notary.
THe Maſter, or Keeper of the Great Wardrobe, is an Office of great Antiquity and Dignity, High Priviledges, and Immunities were conferred by King Henry the Sixth, confirmed by his Succeſſors, and enlarged by King James, the firſt who ordained this Great Officer ſhould be an Incorporation or Body Politick for ever.
His Office is to make Proviſions for Coronations, Marriages, and Funerals; To furniſh the Court with Beds, Hangings, Carpets, and other Neceſſaries; To furniſh Houſes for Ambaſſadours at their firſt Arrival here, Preſents for333 Foreign Princes, and Ambaſſadours, Cloaths of State, and other Furniture for the Lord Lieutenant of Ireland, Lord Preſident of Wales, and His Majeſty's Ambaſſadours abroad; To provide all Robes for the Foreign Knights of the Garter, for the Officers of the Garter, Coats for Heralds, and Purſuivants at Arms, Robes for the Lord Chancelor, Lord Treaſurer, &c. Rich Liveries for the Two Lord Chief Juſtices, All the Barons of the Exchequer, All the Officers of thoſe Courts, All Liveries for His Majeſty's Domeſtick Servants, All Linnen for the King's perſon, &c.
In which there is ordinarily Expended yearly about 25000 l. beſides all Extraordinaries, as Coronations; Funerals, &c.
His Salary, in compenſation of all Ancient Fees, is 2000 l. per Annum. This Office is now kept in the Savoy. Under the Maſter is
A Deputy, whoſe Salary is 200 l. A Clerk, whoſe Salary in compenſation of all Fees, and Allowances, is 300 l. per Annum.
To this Office have been lately added by Patent (during pleaſure) A Comptroller, and Surveyor, Salary to each 300 l.
334Belonging to this Office are divers Tradeſmen, Artificers, and others to number of about Forty; all ſworn Servants to the King.
Beſides the Great Wardrobe the King hath divers Standing Wardrobes at Whitehall, VVindſor, Hampton-Court, the Tower of London, Greenwich, &c. Whereof there are divers Officers.
And Laſtly, There is a Removing Wardrobe, which attends upon the Perſon of the King, Queen, and Children, Ambaſſadours, Chriſtnings, Masks, Plays, &c. at the Command of the Lord Chamberlain, who hath the diſpoſing of the Vacant places. Here are ſix Officers, one Yeoman, two Grooms, and three Pages.
The Salary of the Yeomen 200 l. each Groom 100 pounds, and each Page 100 Marks.
To All theſe together is allowed ſix Diſhes each Meal.
All Moveables belonging to this Office are at length Divided into Three parts, whereof the Yeoman hath one for his own uſe, the Grooms another, and the Pages the Third part.
IN this Office of Tents, Toyls, Hays, and Pavilions, are Two Maſters, Four Yeomen, one Groom, one Clerk Comptroller, one Clerk of the Tents.
BEſides the Maſter before-mentioned there is one Yeoman, three Grooms, one Page, Two Surveyors, one Clerk, and Perſons of ſeveral Trades.
MAſter of the Hawks, and other Officers under him about London, and other Places belonging to the King, in all Thirty Three.
MAſter of the Buck-Hounds, a Serjeant, and Thirty Four others; one Maſter of the Otter-Hounds; one Maſter of the Harriers, and Five under him.
OF the Chamber in ordinary, two Clerks of the Cheque, and Forty others.
Muſitians in ordinary, Sixty Two.
Trumpeters in ordinary, and Kettle-Drummers, in all Fifteen.
Drummers and Fifes, Seven.
Tradeſmen, one or two of all ſorts.
Watermen, Fifty Five.
Comedians, Seventeen Men and Eight Women.
Keeper of Birds in St. James's Park, one:
Keeper of the Volery, and Serjeant Painter, one of each.
With divers other Officers and Servants under the Lord Chamberlain, to ſerve His Majeſty upon Extraordinary occaſions.
Many of theſe Offices and Places are of good Credit, great Profit, and Enjoyed by Perſons of Quality.
FOur Querries (from the French Eſcurie, a Stable) of the Crown-Stable, and Eight of the Hunting-Stable; Their Office is to attend the King in337 Hunting, or Progreſs, or on any occaſion of Riding abroad, to help His Majeſty Up and Down from his Horſe. Fee to each of theſe is 20 l. yearly, the ancient Fee; but have 100 l. yearly Allowance for Diet, beſides Lodgings, and two Horſe Liveries.
Avenor, from Avena, Oats; Fee 40 l. This Place, with all the following, is in the Gift of the Maſter of the Horſe
One Clerk of the Stable, Four Yeomen, beſides Four Child Riders, Yeoman of the Styrup, Serjeant Marſhal, and Yeoman Farriers, Four Groom Farriers, Serjeant of the Carriage, Three Surveyors, A Squire and Yeoman Sadler, Four Yeomen Granators, Four Yeomen Purveyors, A Yeoman Peck-man, A Yeoman Bill-maker, Four Coach-men, Eight Litter-men, A Yeoman of the Cloſe Wagon, Sixty four Grooms of the Stable, whereof. Thirty Grooms of the Crown-Stable, and Thirty four of the Hunting, and Pad-Stable, Twenty ſix Footmen in their Liveries, to Run by the King's Horſe, &c.
The Clerk of the Market, who within the Verge is to keep a Standard of all Weights and Meaſures, and to burn all Falſe Weights and Meaſures; And from the pattern of this Standard are to be taken all the Weights and Meaſures of the Kingdom.
THe Horſe Guards, Life Guard, or Guard of the King's Body, conſiſting of Five hundred Horſemen, all or moſt of them Gentlemen and old Officers, commanded by their Captain, who is at all times of War, or Peace, to Wait upon the King's Perſon, as oft as he Rides abroad, with a conſiderable number of thoſe Horſmen well Armed, His pay is 30 s. per diem. Theſe Horſe have been divided into Three parts whereof 200 under the Command of the Maſter of the Horſe, and 150 under another Officer, and the other 150 Commanded by another Officer; The Pay to each of theſe Officers 20 s. per diem.
Under the Captains of the Guards are Two Lieutenants, a Coronet, a Quarter-Master, and Four Brigadiers. The Horſmens Pay is 4. s. per diem.
FIrſt Inſtituted by King Henry the Seventh, and choſen out of the Beſt and moſt Ancient Families of England, not only as a Faithful Guard to the King's Perſon, but to be as a Nurſery to breed up hopeful Gentlemen and fit them for Employment, Civil, and Military abroad, or at home; as Deputies of Ireland, Ambaſſadors, Counſellors of State, Captains of the Guard, Governours of Places, and Commanders in Wars both by Sea and Land. Their Office is to attend the King's Perſon to, and from his Chappel, and all publick Solemnities; A Peer of the Realm is uſually Captain, whoſe Pay is 1000 l. per Annum; his Lieutenant 200 l. yearly, his Standard-Bearer 200 l. yearly, Clerk of the Cheque 120 l. 1 s. 3 d. yearly, and Forty Gentlemen Penſioners, Fee to each is 100 l. yearly; a Gentleman Harbinger to provide Lodging for them, his Fee 70 l. 11 s. yearly.
Theſe Wait one Half by Quarter; Upon Extraordinary occaſions, All are Summoned; Their ordinary Arms are Gilt Poleaxes; their Arms on Horſeback in time of War, Curaſſiers, Arms with Sword and Piſtol. They are not340 under the Lord Chamberlain, but their own Officers, and always Sworn by the Clerk of the Cheque, who takes Notice who are abſent from their Duty.
ARe at preſent 100 Men in daily Waiting, and 70 more not in Waiting; as any of the 100 dye, his Place is filled out of the Seventy; theſe are choſen of the beſt Men under Gentlemen, and of Larger Stature than ordinary, for they were formerly to be ſix Foot high. Their Office is in their Coats and Caps, one Half with Harquebuſſes, and the other Half with Partizans, to wait upon the King in his Standing Houſes, Forty by Day, and Twenty to Watch by Night, and about the City, to Wait on the King's Perſon abroad, by Water or Land.
Their Captain's Fee is 1000 l. yearly; the Lieutenant 500 l. Enſign 300 l. Clerk of the Cheque 150 l. Four Corporals 150 l. each.
The King hath many other Inferiour Officers; which over-paſſing, we come now to
IS ſuitable to the Conſort of ſo Great a King, Splendid and Magnificent: And hath all Officers, and a Houſhold apart from the King; For Maintenance whereof there is uſually ſetled 40000 l. per Annum, and is as followeth:
THe Lord, or Grand Almoner; He hath Superintendency over all the Eccleſiaſticks belonging to the Queen.
One Confeſſor to the Queen, and Four Almoners.
One Treaſurer of the Chappel, Two Preachers, Four Clerks of the Chappel, and Four Boys.
Sixteen Chaplains Divers belonging to the Muſick, and Two Vergers, or Porters.
THere is a Counſel conſiſting of Perſons of Great Worth and Dignity; A Steward of the Revenue, A Keeper of Her Majeſties Great Seal, A Chamberlain, Maſter of the Horſe, A Vice-Chamberlain, A Principal Secretary, and Maſter of Requeste, A Treaſurer, and Receiver General, Attorney General, Solicitor General, A Surveyor General.
Six Gentlemen Uſhers of the Privy Chamber, Two Cup-bearers, Two Carvers, Two Sewers, Five Gentlemen Uſhers daily Waiters, Ten Grooms ef the Privy Chamber, Seven Gentlemen Uſhers, Quarter Waiters.
Six Pages, attending at the Back-Stairs, Four Pages of the Preſence.
A Surveyor, Proveditor, Clerk, Yeoman, Groom, Page, Tayler, and Bruſher.
Twelve Grooms of the Great Chamber, One Porter of the Back Stairs.
343A Maſter of the Queens Barge, and Twenty Four Watermen.
The Grooms of the Stole, Lady of the Robes, and of the Privy Purſe, Seven Ladies of the Bed-chamber, One Keeper of the Sweet Coffers, Six Maids of Honour, and A Governeſs, or Mother of the Maids.
Six Chamberers, or Dreſſers, A Laundreſs, A Sempſtreſs, A Starcher, A Neceſſary Woman.
Theſe are all paid by Her Majeſty out of her own Revenue.
There are beſides Divers other Officers Below Stairs belonging to the Queens Table, and Stable, paid by the King, for which is allowed 20000 l. more.
The Prince of Wales, and other the King's Children, have likewiſe their Courts, or Houſholds apart; But theſe being not certain, no certain Allowance or Settlement is of them, but are rather at pleaſure: And therefore I ſhall not particularize them, but refer to Chamberlain's Preſent State of England.
ALthough every City is within ſome of the Counties herein before mentioned; yet each of them are like a little Commonwealth, Governed by Laws, and Cuſtoms Eccleſiaſtical Civil, and Military, within themſelves; And this by Charter, or Priviledges granted and cofirmed to them by ſeveral Kings of this Realm. And there is for
A Biſhop, every City being or having been a Biſhops See, and hath a Cathedral to which belong a Dean, A Chapter, A Treaſurer, and Prebendaries, who have Lands and Revenues belonging to them for their Maintenance; and though the Biſhoprick be diſſolved, the City remains, as Weſtminſter and Cambridge, which was antiently reputed a City. And for
The Eccleſiaſtical Government of Pariſhes there is a Rector, or Vicar for every Pariſh, who is to have the Cure of the Souls of his Pariſhioners, every one of which, hath a Parſonage, or Vicaridge-Houſe, and a Competent345 allowance of Tithes for their Maintenance. And there is for
A Mayor, who is the King's Lieuetenant, choſen by the Citizens, and approved by the King, and is for one year as a Judge, to determine all Matters within his Juriſdiction, and to Mitigate the Rigour of the Law: And next in Government of Cities are the
Two Sheriffs, who are Judges in Civil Cauſes within the City, and to ſee all Execution done whether Penal or Capital, To Execute the Kings Mandates within the City, &c. And might rather be called State Reeves, or Port-Reeves, (i. e.) Urbis vel Portus Praefecti.
The Mayor, Sheriffs, and Aldermen of every City, may make Laws called
By-Laws, for the Government of the City, provided they are not Repugnant to the Laws of the Kingdom.
And theſe have ſeveral Courts which have Juriſdiction in all Civil, and Criminal Cauſes, only with Reſtraint that all Civil Cauſes may be removed from their Courts to the Higher Courts at Weſtminſter: But of all theſe we ſhall ſpeak more at large, when we come to treat of the City of London, and other346 Cities in particular, which may ſerve for an Example, or Pattern of all the reſt. And therefore we ſhall begin with
LOndon, ſo called as ſome conjecture from the Britiſh word Longdin, ſignifying in the Saxon Tongue Shipton, or Town of Ships: But others derive it otherwiſe, And therefore not to inſiſt thereon, Nam utere tuo Judicio, nihil impedio; It was Built as ſome Write 1108 years before the Incarnation of our Saviour; In the time of Samuel the Prophet, Is in length about 7 Miles and half, and about 2 Miles and half in breadth: Hath above 500 Streets, and Alleys, and 15000 Houſes within the Walls, which may not be accompted above a Sixth part of the whole City.
The Cathedral Church of St. Paul, was Built, or begun by Ethelbert King of Kent, about Anno Chriſti 610, and is the only Cathedral of that Name in Europe: Beſides this, there are 130 Pariſh Churches, beſides Chappels, which is double the number to be found in any other City in Chriſtendom.
OF London is, as before mentioned of Cities in General, By a Biſhop, and was in the time of the Britains by an Archbiſhop, but by the Saxons, the Archiepiſcopal See was removed to Canterbury, for the ſake of St. Auſtin, who firſt Preached the Goſpel there to the Heathen Saxons, and was there buried, ſince which, there have been 100 Biſhops to the preſent Biſhop there.
To this Cathedral belongs a Dean, a Chapter, and 30 Prebendaries, maintained in like manner before mentioned in the General Government of Cities.
The Eccleſiaſtical Government of Pariſhes is as before mentioned, by a Parſon, Rector or Vicar, To have cure of Souls in every Pariſh, who have a Parſonage, or Vicaridge-Houſe, and a competent Allowance in Tithes, which was anciently beſides the Tithes of Tradeſmen's gains, and mortuaries, &c. 3 s. 5 d. in the pound Rent, which they paid by a Half every Sunday and Holiday; Afterwards by 25 Hen. 8. It was ordained, and afterwards confirmed by 27 Hen. 8. and 37 Hen. 8. That 2 s. 9 d. in the pound ſhould be paid348 for the Rent of all Houſes, Shops, &c. to the Parſon, with power to the Lord Major, to Impriſon any Perſon ſhould refuſe to pay the ſame.
OF London is by a chief Magiſtrate anciently called The Prefect of London, In the Saxons time Portegreeve, by the Norman's Bailiff or Bailiffs, till King Rich. the Firſt, Anno 1189, changed the name of Bailiff to Mayor, which is now
The Lord Mayor, and is a Citizen, yearly choſen by the Citizens, and approved by the King, unleſs ſometimes for Diſloyalty, their Priviledges, and Franchiſes are taken from them; and a Guardian ſet over them, as was done by Hen. the Third, and Ed. the Firſt.
He is uſually Knighted by the King before the end of his Mayoralty, if he had not that Honour before; His and the Sheriffs Tables are open to all comers, and for his Grandeur is allowed•1000 l. for his Sword-bearers Table; His Domeſtick attendance is very. Honourable, and hath Four Officers reputed Eſquires by their places, (viz.) The Sword-bearer, Common Hunt, who keepeth a Kennel of Hounds, Common Cryer and the Water Bailiff;349 There is alſo the Coroner, Three Serjeant Carvers, Three Serjeants of the Chamber; A Serjeant of the Channel; Four Yeomen of the Water-ſide; One under Water Bailiff; Two Yeomen of the Chamber; Three Meat weighers; Two Yeomen of the Wood-wharfs, moſt of which have their Servants allowed them, and have Liveries for themſelves.
Upon the Death, or Demiſe of the King, he is ſaid to be the Prime Perſon of England; On the day of the Kings Coronation, he claims to be chief Butler, and to bear the Kings Cup amongſt the Higheſt Nobles of the Kingdom.
His Authority reaches not only over all the City but part of the Suburbs, and on the River of Thames Eaſtward, as far as Yendale or Yenleete, and Weſtward as far as Colney Ditch above Stanes Bridge, and keeps ſeveral Courts in the Counties adjacent to the Thames for Conſervation of the River, and Puniſhment of Offenders therein, And there are
Two Sheriffs of London, who are alſo Sheriffs of the County of Middleſex, and are Annually choſen by the Citizens from among themſelves in the Guild-hall upon Midſumer day, approved350 by the King, and then upon Michaelmas Eve Sworn, and preſented to the Barons of the Exchequer, to be allowed by the Barons and Sworn; If the Perſons ſo choſen refuſe to hold they incur a Penalty, unleſs they will make Solemn Oath they are not worth 10000 l.
Twenty ſix Aldermen, Preſide over the 26 Wards of the City; When any of theſe die, The Lord Mayor, and Aldermen chuſe another out of the moſt ſubſtantial Men of the City, and if any ſo choſen refuſe to hold, he is commonly fined 500 l.
All the Aldermen who have been Lord Mayor, and the Three eldeſt, who have not yet arrived to that Honour, are by their Charter Juſtices of Peace; And this City of London is Camera Regis Reipublicae, Cor & totius Angliae Epitome.
To the Lord Mayor, and the City of London, belong divers Courts of Judicature, amongſt which the chief is,
DOmus Cauſarum, Hus, being in the Saxon Tongue Houſe, and Dhing Things; It is the Higheſt Court of London, And is holden before the Lord Mayor and Sheriff, or now in the Sheriffs abſence, Six Aldermen, which ſit in Court there every Tueſday, altho' that it may not ſeem to Vary from the Command of St. Edward the Confeſſor, that it ſhould be holden every Monday, it is ſtill written to be holden on the Monday; And hath Cognizance of all Pleas Real, mixt, and Perſonal; For the Rule in the Regiſter is, Quodlibet breve quod tangit Liberum Tenementum in London dirigitur Majori ſive Custodi & Vicecomitibus, Et•lia Brevia tantum Vicecomitibus.
By Fleta lib. 28 & 48. It appears, that the name or Court is not appropriated to London only, for the King hath his Court in Civitatibus Burgis & Locis Exemptis ſicut in Huſtingis London, Winton, Lincoln, Eborum, & apud Shepway ubi Barones & Cives Recordum habent, &c.
One Week the Judges ſit upon Pleas Real, The next upon Actions mixt, or of any other nature, So that all Lands, Tenements, Rents, and Services within352 London, and the Liberties and Suburbs thereof, are Pleadable at Guild-Hall in two Huſtings, one called Husting de placito Terrae and the other Huſting Commun 'Placitorum.
And if a Man be impleaded in the Common Pleas of Lands in London; The Tenant ſhall ſay the Lands are in London, and time out of mind, &c. every one hath been impleaded for them, within the City in the Huſtings.
But ſince Real Actions have grown out of uſe by trying Titles by Ejection•firmae, The ancient Cuſtoms and Practiſe of this Court are much declined.
THe Two Sheriffs keep each of them a Court of Record within the City, by Preſcription, or Cuſtom where they hold Plea of all perſonal Actions, and have belonging to theſe Courts Two Priſons, called Compters, the one in Wood-ſtreet; The other in the Poultry.
They hold Two Court-days each in every Week, That for Wood-ſtreet on Wedneſdays and Fridays, And that for the Poultry Compter on Thurſdays and Saturdays.
353In Plaint of Debt, the Cuſtom is, the Sheriffs Ore Tenus ſend to the Serjeants to Summon, or Attach the Defendant without Warrant, and upon Nihil Returned within the City, the Serjeants by Commandment from the Sheriff have uſed to Attach; and Arreſt the Defendant, to have his Body at the next Court, before the Sheriff at the Guild-Hall.
They certifie their Records in that manner, but the uſual practiſe is to enter an Action in the Office for that purpoſe at one of the Compters, which Action muſt be carefully entred, for it is the Original of that Court, by which you declare, and from which there can be no variance: And when an Action is entred, the Serjeant may Arreſt the Defendant and bring him into Cuſtody, until he find Bail to anſwer the Condemnation, which Bail is taken by one of the Clerk Sitters at the Compter who conſtantly attend.
The Plaintiff ought to declare the firſt Court after the Defendant is Arreſted; although further time is uſually given, Ex gratia Curiae per mot '; But if the Plaintiff have no Attorney the firſt Court, a Non-ſuit may be had by the Defendant.
354If the Defendant be a Freeman he hath four defaults; But they are allowable only in Debt, Accompt, or Covenant broken, and not otherwiſe.
If the Defendant be in the Compter he is brought to the Bar by a Duci facias, which is but the Sheriffs Mandate, made by the Clerk of the Papers.
They have in each Court a Steward or Judge who is Learned in the Laws, and beſides their particular Cuſtoms, their Proceedings are generally according to the Common Law at Weſtminster; But of their particular practiſe, Vide Compleat Sollicitor and others.
There is alſo in London a Court of Chancery or Equity held before the Lord Mayor, which is commonly called
WHerein they do proceed by Engliſh Bill, Anſwer, Replication, and Rejoynder, much like the Proceedings in the High Court of Chancery.
355And the Cuſtom of London is, when a Man is Impleaded before the Sheriff, The Mayor may ſend for the Parties, and for the Record upon Suggeſtion of the Defendant, and Examin the Parties upon the Pleas, and if it be found upon Examination that the Plaintiff is ſatisfied, The Mayor may award the Plaintiff ſhall be Barred; But by no Cuſtom he can Examine after Judgment, 10 Hen. 6.14, 15.
Alſo there is a practiſe called Marking of a Cauſe before the Lord Mayor, which is after a Verdict given for the Plaintiff in the Sheriffs Court, the Defendant may get the Cauſe marked by one of the Clerks in the Lord Mayor's Court, to ſtay Judgment and Execution until the matter be Examined in Equity, where the Lord Mayor doth oftentimes mitigate the Damages or give the Defendant time to pay it, &c. This Court is held Mondays, Tueſdays, and every day, if the Lord Mayor pleaſe to ſit.
THis is a Court of Record conſiſting of the Lord Mayor, Recorder, and Twenty three Aldermen, whereof the Two Sheriffs are part; And their Proceedings is by Arreſt of the Body, or Attachment of the Defendants Goods, and in that caſe much like the other Courts of Common Law.
By the Statute of 43 Eliz. cap. 12. They have power to correct Errors uſed for default of good Governance, &c. in the City.
THe Mayor, and Aldermen by Cuſtom have the Cuſtody of Orphans within the City; And if they commit the cuſtody to another Man, he ſhould have a Raviſhment of Ward, if the Orphan be taken away, And they ſhall have cuſtody of the Lands and Goods of ſuch Orphans.
A Recognizance may be acknowledg'd, in this Court before the Mayor and Aldermen to the Chamberlain for Orphans, and he being a ſole Corporation, the Recognizance and Bond made to him and his Succeſſors concerning357 Orphans ſhall by Cuſtom go to his Succeſſors.
Executors, or Adminiſtrator are to Exhibite true Inventories before the Lord Mayor and Aldermen, and give Security by Rocognizance, or the Court may commit them to Priſon till they do it.
If the Father advance any of his Children by part of his Goods, that ſhall bar him to demand any further, unleſs the Father under his Hand, or by Will declare, it was but in part of Advancement, and then that Child putting his part in Hotchpot with the Executors, and Widow may have a Third part of the whole, and this the Civil Law calls Collatio Bonorum; How the Goods of a Freeman ſhall be divided, See Coke's 1 Inſt. Sect. 207.
THis is held by the Lord Mayor, Aldermen, and Commonalty, Reſembling the High Court of Parliament; The Commonalty being choſen out of every Ward, conſtitute the Lower Houſe, and Repreſent all the Commonalty of the City.
358Here they make Acts for the better Government of the City; For the Execution of the Laws and Statutes of this Realm, Pro Bono publico, and for the better advancement of Trade and Traffick; Provided ſuch Conſtitutions be not contrary to the Laws of the Realm: And theſe being made by Mayor, Aldermen and Commonalty, do bind within the City, And they of the Common Aſſembly do give their Aſſent by holding up their Hands.
THis Reſembles the Country Leets, Every Ward being as a Hundred, and the Pariſhes as Towns; And in in every Ward there is an Inqueſt of Twelve, or more Sworn every year to Inquire of and preſent Nuſances, and other Offences within the Ward.
THis is as much as to ſay, The Court of the Hall, being the Court which every Company in London keeps in their Halls, which was anciently called, The Hallmote, or Folke Mote.
BEfore the Chamberlain all Indentures of Apprentices are, or ought to be Inrolled, and if they be not Inrolled, and if they be not Inrolled the Apprentice may refuſe to Serve, and Sue out his Indenture in this Court at his Pleaſure, and be diſcharged of his Maſter.
The Chamberlain is Judge in all Complaints, either of the Servant againſt the Maſter, or Maſter againſt the Servant, and puniſheth the Offenders at his Diſcretion.
In this Court are all Apprentices made Free; And that may be Three manner of ways; By Service as are Apprentices; By Birthright as being the Son of a Freeman, which is called Freedom by his Fathers Copy, or by Redemption by Order of the Court of Aldermen.
THe Lord Major of London for the time being, is the Conſervator or Governor of the River of Thames, and the Iſſues, Breaches and Lands overflown from Stanes Bridge, to the Waters of Yendal or Medway; And hath Authority for puniſhment of ſuch as uſe unlawful Netts, or Engins in Fiſhing, or take Fiſh under Size, or unſeaſonably, &c. 4 Hen. 7. cap. 15.
And in all Commiſſions touching the Water of Lee, the Lord Mayor ſhall be one, 3 Jac. cap. 14.
THe Mayor is Coroner within the City, And this Court is holden before him or his Deputy, See Coroner before in the Counties.
THe Lord Mayor is alſo Eſcheator within the City; And this Court is holden before him or his Deputy, Vide Eſcheator before in Counties.
THis Court Sitteth by Force of the Commiſſion under the Great Seal, Warranted by Act of Parliament, Ann. 43 Eliz. cap. 12. there being an Officer, or Clerk to Regiſter Aſſurances.
The Juriſdiction of which Court you may read in that Act of Parliament being for Incouragement of Trade: The Judge of the Admiralty, Recorder, Two Doctors of Civil Law, Two Common Lawyers, Eight Merchants, or any five of them to determine all differences concerning Aſſurances, as they ſhall think fit without Formalities of Pleadings; And to Commit to Priſon without Bail all ſuch as diſobey their Decrees; And to that end they are to meet once a Week at the Aſſurance Office, and not to take any Fee. If any be grieved by their Decree, he may Exhibit his Bill in Chancery for Re-examination of that Decree.
The Lord Mayor is Chief Judge at the Court, or Seſſions of Gaol Delivery, held Eight times in the year, or oftner, at the Seſſions-Houſe in the Old Baily, for the City of London and County of Middleſex, for the Tryal of Criminals,362 and hath power to Reprieve Condemned perſons.
The Tradeſmen in London are divided into Corporations or Companies, and are ſo many Bodies Politick; of theſe, Twelve are called Chief Companies, and he that is choſen Lord Mayor, if he be not before, muſt be made Free of one of theſe Companies, viz. Mercers, Grocers, Drapers, Fiſhmongers, Goldſmiths, Skinners, Merchant Taylors, Haberdaſhers, Salters, Ironmongers, Vintners, Cloth-Workers: All which Companies have Aſſembling places called Halls, and each of them hath a Maſter choſen Annually from amongſt themſelves, and Subordinate Governours called Wardens or Aſſiſtants; And theſe in their Companies exactly correſpond to the General Government of the City. Several of our Kings have (to honour ſome of theſe Companies) taken their Freedom of it, as VII ſeveral Kings had been of the Taylors Company, whereof the laſt of theſe Seven being King Henry the 7th, gave them the Name and Title of Merchant Taylors; And the late King Charles the Second was made Free of the Grocers.
363There are near LX other Companies, or Corporations, All enjoying large Priviledges by the Charters of ſeveral Kings, and have Fair Halls to meet in.
HIs Late Majeſty King Charles the Second, after his Reſtoration, ſent a Commiſſion of Lieutenancy appointing ſeveral Perſons His Lieutenants, giving them the ſame Power in London, the Lord Lieutenants have in their reſpective Counties. And in purſuance of that Commiſſion, the Regiments then in being were New ſetled in this manner, viz. Six Regiments of Trained Bands Commanded by ſix Citizens Knights, and their Lieutenant Colonels all Knights, and ſix Regiments of Auxiliaries; In theſe Twelve Regiments were 20000 Men: Then there were Liſted Two Regiments of Horſe, each conſiſting of five Troops, in all 800 Horſe: But in caſe of need, in London, and within the Liberties may in a Few days be Raiſed 40000 Men.
364There is in Southwark One Regiment of Trained Bands, Fifteen Hundred Men. In the Hamlets of the Tower Two Regiments, in all Three thouſand Men: Then Holbourn Regiment, and Weſtminſter Regiment Two thouſand each; and in caſe of Neceſſity they can Raiſe 20000 more.
The Artillery Company, is as a Nurſery of Souldiers, and hath been ſo for above 60 years; the late King Charles (when Prince of Wales) Liſted himſelf therein, and the Duke of York did the like at the ſame time, who after the Reſtoration took upon himſelf the Command thereof; and under him was a Leader who Exerciſed them every Tueſday Fortnight, and the other Tueſday the Exerciſe was performed by the ſeveral Members of the Company, who are there Trained up to Command.
Of this Society are many of the Nobility, alſo the Lord Mayor, and moſt of the Aldermen: All the Commanders of the Trained Bands and Auxiliaries here Exerciſe Arms. This Company conſiſts of 600 Men.
Their Officers are A Leader, Two Lieutenants, Two Enſigns, Two Serjeants, A Provost Martial; Four Gentlemen of Arms, &c. They have alſo a Court Martial, conſiſting of A Preſident, A365 Vice-Preſident, a Treaſurer, and Twenty four Members of the Company. On the Second Tueſday in February, at a General Rendezvous every Year the Officers are Elected.
For the Security and Defence of this Famous City, and River, there hath been anciently divers Fortreſſes: But the moſt Eminent and Chief is that called.
WHich is not only a Fort or Cittadel to command, and defend, both City, and River; but alſo A Royal Palace, where our Kings with their Courts have ſometimes Lodged, A Royal Arſenal, where are Arms, and Ammunition for 60000 Men, The Treaſury for the Jewels and Ornaments of the Crown, The only Mint for coyning Gold and Silver, The Great Archive where are conſerved All the Records of the Courts at Weſtminster, The Chief Priſon for the ſafe Cuſtody of Great Perſons that are Criminals; and if the great Extent thereof within the Walls be conſidered, and its Authority over the ſeveral Hamlets without, and the many high Priviledges and Liberties366 belonging thereunto, it may rather be Reputed a City, than a Cittadel.
The Governour of this Important Fortreſs is the Conſtable, or Lieutenant of the Tower; Who is High Steward of a Court there held by Preſcription, of Debt, Treſpaſs, and other Actions of any Sum Greater or Leſſer, and hath a Deputy; Before the late Act might refuſe a Habeas Corpus, may give Protection to all Debtors belonging to the Tower within the Realm of England; hath Priviledge to take Unam Lagenam of all Wine-Ships that come; Is Virtute Officij, to be in Commiſſion of the Peace for the Counties of Kent, Surrey, and Middleſex, and (as ſome hold) to be Cuſtos Rotulorum of the County of Middleſex: His Salary is 200 l. per Annum.
His uſual Fee for every Priſoner is 20 l. at Entrance, and 3 l. a Week for an Eſquire; For a Knight 5 l. a Week; For a Baron, or above, 50 l. at Entrance, to whom the King allows 10 l. Weekly, whereof Two part goes to the Priſoner, the other Third part to the Lieutenant for Lodgings and Dyet, and 50 l. to the Lieutenant upon the Priſoners diſcharge.
The Gentleman Porter of the Tower holds his Place by Patent, and at the367 Entrance of a Priſoner hath for his Fee Veſtimenta Superiora, or a Compoſition for it.
The Gentleman Gaoler is put in by the Lieutenant of the Tower, his Fee is 41 s. of a Gentleman, 5 l. of a Knight.
Forty Warders of the Tower accounted the King's Domeſtick Servants, and Sworn by the Lord Chamberlain of His Majeſties Houſhold, or by the Clerk of the Cheque.
The Tower is not within any County or Pariſh (only a ſmall part ſome account to be in Middleſex) but is a Liberty of it ſelf, exempt from all Taxes to the King, Church, or Poor. It hath
A Parochial Church, exempt from all Eccleſiaſtical Juriſdiction of the Archbiſhop, and is a Donative beſtowed by the King without Inſtitution or Induction. And there are
Thirteen Hamlets of large Extent belonging to the Tower, whoſe Train-Bands are all bound to Aſſiſt the Conſtable or Lieutenant of the Tower, which are called The King's Company, and are to Wait on the King's Perſon in time of Need, and to go no further than the King. And within the Tower is kept
BEing the grand and ſtanding Magazine of the principal Preparatives, Habiliaments, Utenſils, and Inſtruments of War, as well by Sea as Land, for the Defence, and Safety of the Kingdom, and conſequently hath Influence in the Navies, Forts, Caſtles, and Armies thereof; having the Superintendence, Ordering, and Diſpoſing as well of the Grand Magazine lodged in the Tower, as at the Minories, Woolwich, Chatham, Windſor, Portſmouth, Plimouth, Hull, and elſewhere: And is under the Government of
The Maſter of the Ordnance, under whom, The Adminiſtration and Management of the ſaid Office is committed to the Principal Officers following, viz.
The Lieutenant of the Ordnance, who in the abſence of the Maſter of the Ordnance, is to Impart all Orders and Warrants directed to the Office, and to ſee them duly Executed, and to give Order for Diſcharging the Great Ordnance when required, upon Coronation Days, Days Feſtival, Triumphs, &c. As alſo to ſee the Train of Artillery fitted369 with all its Equipage, for Motion upon any occaſion.
The Surveyor is to Survey all the Ordnance, Stores, and Proviſions of War in the cuſtody of the Store-keeper, which he is to ſee ſo diſtinguiſhed, and placed as ſhall be beſt for their Preſervation and Safety, for a decent View and a ready Account; to allow all Bills of Debt, and to keep Check upon all Labourers and Artificers Works, and to ſee that all Proviſions received be good, and ſerviceable, and duly proved with the Aſſiſtance of the reſt of the Officers, and the Proof Maſters, and marked with the King's Mark, if they ought ſo to be.
The Clerk of the Ordnance is to Record all Orders, and Inſtructions given for the Government of the Office, as likewiſe all Patents and Grants, and the Names of all Officers, Clerks, Artificers, Attendants, Gunners, Labourers and others who enjoy the ſaid Grants, or any other Fees from the King for the ſame; To draw all Eſtimates for Proviſions, and Supplies to be made, and all Letters, Inſtructions, Commiſſions, Deputations, and Contracts for His Majeſty's Service; To make all Bills of Impreſt; and Debentures for the payment and ſatisfaction of the reſpective370 Artificers and Creditors of the Office for Work done, or Proviſions received; and Quarter-Books for the Salaries, Allowances, and Wages, of all Officers, Clerks, and other Miniſters belonging to the ſaid Office; and alſo to keep Journals, and Liegers of the Receipts, and Returns of His Majeſty's Stores, that nothing be Bought, Borrowed, Given, Received, Lent or Employed without due Record thereof, to ſerve as a Cheque between the Two Accomptants of the Office, the one for Money, the other for Stores.
The Storekeeper is to take into his Cuſtody all His Majeſty's Ordnance, Munitions, and Stores thereunto belonging, and to Indent and put in Legal Security for the ſafe keeping thereof, and to make Juſt and True Accompt, from time to time, to Receive no Proviſions whatſoever, that are manifeſtly inſerviceable, or before they have been Reviewed by the Surveyor; nor to Iſſue any proportion of Ordnance, &c. but what is agreed upon, and ſigned by the Officers, according to the appointment of the Maſter of the Ordnance, grounded upon the Order of the King, or ſix of the Privy Council, or the Lord Admiral for Matters concerning the Navy: Nor to Receive371 back any Stores iſſued till they have been Reviewed by the Surveyor, and Regiſtred by the Clerk of the Ordnance in the Book of Remains; To look that all His Majeſties Store-Houſes be well Repaired, and well Accommodated, and the Stores kept in ſuch order, and luſtre, as is fit for the Service and Honour of the King.
The Clerk of the Deliveries is to Draw all Proportions for Delivery of any Stores and Proviſions, and to be preſent at the Delivery, and by Indenture to Charge the particular Receiver of the King's Munitions, whether Captain, Gunner, or other, and to Regiſter as well the Copies of all Warrants for Deliveries, as the Proportions delivered, whereby to diſcharge the Store-keeper.
The Treaſurer, and Paymaſter of the Office, was formerly an Appendix to that of Lieutenant of the Ordnance:
But the late King Charles Erected it into a particular and diſtinct Office, and granted the ſame (as all the other before-mentioned are,) by Letters Patent; And there are other Subordinate Officers, which likewiſe hold by Patent, as
372The Maſter Gunner of England, who is to teach all ſuch as deſire to Learn the Art of Gunnery, and to oblige every Scholar by Oath not to ſerve any Foreign Prince or State (without leave,) nor to Teach any other the ſaid Art, but ſuch as have taken the ſaid Oath; and to certifie the Maſter of the Ordnance the Sufficiency of any perſon Recommended to be one of the King's Gunners, and his Ability to diſcharge the ſaid Duty.
The Keeper of the Small Guns, who hath the charge and cuſtody of the King's Small Guns, as Muſquets, Harquebuſſes, Carabines, Piſtols, &c. with their Furniture.
There are many other Inferiour Officers, and Miniſters Attendants and Artificers, as Clerks, Proof-Maſters, Meſſengers, Maſter Smith, Maſter Carpenter, Maſter Wheelwright, Maſter Gunnſmith, Furbuſher, &c. which for Brevity are here omitted, as likewiſe the King's principal Engineer:
The Maſter of the Ordnance hath a Superintendency, and Juriſdiction over all the King's Engineers, Employed in the ſeveral Fortifications of the Kingdom, moſt of whom have their Salaries, and Allowances payable in the ſaid Office, to which they are accountable,373 and from whence they receiev their particular Orders and Inſtructions, according to the Directions and Commands given by the King, and ſignified by The Maſter of the Ordnance.
Nota, The ſeveral ſorts of Cannon ſeem to be denominated from the Rapacious kind of Creatures whoſe Names they bear; as Faulcons, Faulconets, Sakers, Culverins, from the Latin Coluber, Baſilisks, Griffons, Dragons, &c.
WHere is minted all the Bullion that is Minted in England, although the King may ſet up a Mint in any other Place of the Kingdom. In this are divers Perſons of Quality and Worth, whereof the principal is
The Warden of the Mint, who is to Receive the Silver, and Gold brought in by Merchants or Goldſmiths, or others; to pay them for it, and to Overſee all the reſt; his Fee is 100 l. per Annum. And next is
The Maſter Worker, who Receives the Bullion from the Warden, cauſes it to be Melted, delivers it to the Moneyers, and receives it from them again when374 Minted, and hath an Allowance by the Pound weight, but no ſet Fee. And next is
The Comptroller, who ſees all the Money be made according to the Juſt Aſſize, to overſee the Officers and Comptrol them, if the Money be not as it ought to be; his Fee is 100 Marks, and theſe three laſt above hold by Patent of the King. The next is
The Aſſay-Maſter, who weighs the Bullion, and ſees it be according to the Standard; his Fee is 200 Marks.
The Auditor to take the Accounts, and make them up.
The Surveyor of the Melting, who is to ſee the Bullion caſt out, and not to be alter'd after it is delivered to the Melter, which is after the Aſſay-Maſter ▪ hath made Tryal thereof.
There are moreover A Clerk of the Irons, A Graver, A Weigher, A Teller, Melters, Blanchers, Moneyers, and other Officers belonging to the Mint.
IS of Venerable Antiquity, and the Keeper, and Deputy dignified with Special Truſt. The Keeper hath a Salary of 500 l. per Annum, and is properly in the Gift of the Maſter of the Rolls, and afterwards His Majeſty hath uſually by Letters Patents Confirmed it.
As the Chappel of the Rolls and Petty-Bag Office fill, the Records are ſent hither by a Writ formed for that purpoſe; and theſe Records (amongſt other things) contain the Foundations of Abbeys and Religious Houſes; as The Chappel of the Rolls contain thoſe of their Diſſolution, and the Donation of the Lands, of which many Families are now poſſeſſed; The Leagues and Treaties with Foreign Princes; The Atchievements of this Nation in France, and Foreign parts; The Original of All Laws, that have been Enacted or Recorded until Richard the Third; The Homage and Dependency of Scotland upon England; The Eſtabliſhment of Ireland in Laws and Dominions; The Dominion of the Brittiſh Seas, totally excluding French, and Dutch, to Fiſh therein without Licenſe from England,376 proved by Records before the Conqueſt; The Intereſt of the Iſles of Man, and of Jerſey, Guernſey, Sarke, and Alderney, the Four laſt being the Remaining part of the Norman Poſſeſſions; The Title of our Kings to the Realm of France, and how obtained; And all that our Kings, and Princes have till that time Done or Confirmed at home or abroad; Tenures of all the Lands in England, Extents of Mannors, and Lands, Inquiſitions Poſt mortem, being of great Advantage upon Trials of Intereſt or Deſcent, Liberties, and Priviledges granted to Cities, Towns Corporate, or private Men; as Court Leets, Waifs, Eſtrays, Markets, Fairs, Free Warrens, Felons Goods, &c. Or what elſe could come to the Crown or paſs out of it, Writs, Pleadings, and Proceedings as well in Chancery as at Common Law, and in the Exchequer, Inſpeximus, Inrolments, &c. Deeds, and Contracts, between party and party; and, The Juſt Eſtabliſhment of all the Offices in the Nation; The Metes and Bounds of all Foreſts, with the Rights of the Inhabitants therein, and many other; And therefore in the Petitions of the Commons in Parliament 46 E. 3. ſaid to be perpetual Evidence of every man's Right, and the Records of the Nation.
377Theſe Records are repoſited in the place called Wakefield Tower, being many Cart Loads; Thus diſtinguiſhed, Rotuli Patentium, Chartarum, Parliamentorum, Clauſarum, Finium, Scotiae, Vaſconiae, Franciae, Hiberniae, Walliae, Normanniae, Almaniae, Oblatae, Liberatae, Extractae, Perambulationes, Foreſtae, Scut ', Rotul', Marſhal ', Romae de Treugis Chart', & Patent 'fact' in Partibus Tranſmarinis Patent 'de Domibus Judaeorum Protection' de Perdonation ', &c. Stapulae, cum multis aliis, Depicted lately upon every Preſs belonging to each King's Reign, and very eaſie to be brought forth for uſe.
This Office is to be open from 7 till 11 in the Morning, and from 1 till 5 in the Afternoon on all Working-days, only in December, January, and February they open an Hour later in the Morning, and ſhut up an Hour earlier at Night.
All Records ſince Richard the Third, are yet in the Chappel of the Rolls.
The Money allowed by the King for the Maintenance of all theſe Officers, and keeping thls Vaſt Structure in Repair, amounts to a vaſt Sum.
NEar the Tower is St. Katherines, which hath a Royal Juriſdiction for the Eccleſiaſtical Cauſes, and Probate of Wills, and belongeth to the Queen; from whom if any will Appeal it muſt be to the King in his Chancery, who thereupon Iſſueth out a Commiſſion under the Great Seal; as in Appeals from the Arches or Prerogative.
SUrpaſſeth all others in Europe; It hath 19 Arches, 20 Foot between each Arch, is 800 Foot in Length, 60 High, and 30 Broad, and hath a Draw-Bridge almoſt in the Middle, Built 1209, in the Reign of King John.
The Charge of keeping it in Repair is ſo Great, that our Aunceſtors thought fit to have a Large Houſe, a vaſt Revenue in Lands, and Houſes, and divers Officers to be apart for the conſtant Care and Repair thereof. The Principal whereof are the
379Two Bridgmasters choſen yearly out of the Body of the Liveries, upon Midſummer-day, after the Sheriffs and Chamberlain.
The Bridge over the River Lee at Stratford was built an Hundred years before, and being the firſt Arched Stone-Bridge ſeen in England, gave it the Name of Stratford-Bow.
Not far below this Famous Bridge, is the place for Receipt and Management of all Impoſitions laid on Merchandizes Imported, and Exported into and from this City, which is called
WHerein are Employed a great Number of Officers; whereof the Firſt and Chief are
Six Commiſſioners, who have Charge of all His Majeſties Cuſtoms in all Ports of England, Salary to each is 2000 l. a year. And theſe have many
Deputies Cuſtomers, Collectors, Comptrollers, Surveyors, Searchers, Waiters, &c. in the Port of London, and in all the Out-Ports.
Collector of Subſidies, or Cuſtoms Outwards, Fee Two hundred ſeventy ſix pounds; Collector of Customs Inwards, Fee Four hundred ſixty ſix pounds Thirteen ſhillings380 Four pence; Cuſtomer Inwards, Fee Sixty two pounds Six ſhillings Eight pence; Cuſtomers of Cloth, and Petty Cuſtoms, Fee Two hundred ſeventy ſeven pounds; Cuſtomers of the Great Cuſtoms Two, Fee Fifty pounds a piece; Comptroller of Cuſtoms Inwards, and Outwards, Fee Two hundred fifty five pounds; Comptroller of Cloth, and Petty Cuſtoms, Fee One hundred pounds; Surveyors of Cuſtoms Inwards, and Outwards, Fee Three hundred pounds; Surveyor General, Fee Five hundred pounds; Comptroller of the Great Cuſtom, Fee Thirty pounds; Regiſter of the Seizures, Fee One hundred and ſix pounds; Chief Searcher, Fee One hundred Twenty pounds; Five Under-Searchers, Eighteen King's Waiters, Fee to each Fifty two pounds; Surveyor of the Out-Ports, Fee Two hundred and Fifty pounds. The Perquiſites to each of theſe Officers are very conſiderable, and to ſome more than their Salaries.
In all the Out-Ports the King hath the like Officers, who all Receive Salaries likewiſe out of His Majeſty's Revenue.
THe King by Letters Patent doth Conſtitute his Poſt-Maſter General, who keeps one General Office in the City of London, from whence Letters, and Packets are diſpatched.
Monday to France, Italy, Spain, Flanders, Germany, Sweden, Denmark, &c. and to Kent.
Tueſday to the United Netherlands, Germany, &c. and to all Parts of England, Scotland and Ireland.
Wedneſday to Kent only, and the Downs.
Thurſday to France, Spain, Italy, and all Parts of England and Scotland.
Fryday to the Spaniſh and united Netherlands, Germany, Sweden, Denmark and to Kent.
Saturday to all Parts of England, Scotland and Ireland.
And the Anſwers of theſe Letters are Received in the ſaid Office in due Courſe, and diſperſed from thence according to the Directions.
This Office is managed by a Deputy, and other Officers to the number of Seventy ſeven Perſons, who give their actual Attendance.
382Upon this Grand Office Depends 182 Deputy Poſt-Maſters in England, and Scotland, Moſt of which keep Regular Offices in their Stages, and Sub-Poſt-Maſters ink their Branches; And alſo in Ireland another General Poſt-office for that Kingdom, which is kept in Dublin, conſiſting of 18 like Officers, and 45 Deputy Poſt-maſters.
The Poſt-maſter General keeps for Tranſport of Letters to France Two Packet-boats, to Flanders Two, to Holland Two, to Ireland Three, at Deal, Two for the Downs, which he Maintains at his proper Charge.
And the Market Towns of England are ſo well Appropriated to the Reſpective Poſtages, that they have an eaſy, and certain conveyance of Letters in due Courſe of the Mails every Poſt.
The number of the Letters Miſſive in England, tho' formerly inconſiderable, yet are now ſo great that the Office hath been Farmed at 30000 l. a year.
The Charge of Letters here is Leſs, and the Expedition Greater, than in any Foreign Country.
A Letter of a Sheet of Paper coſts 2 d. for 80 Miles, Two Sheets 4 d. and an ounce 8 d. and in 24 Hours the Poſt goes 120 Mile, and in Five days383 an Anſwer may be had from a place 300 Miles diſtant.
And for Riding Poſt you pay only 3 d. a Mile, and 4 d. to the Poſt Boy at every Stage.
IN London, are the Colledges or Houſes of the Municipal, or Common Law Profeſſors, and Students, Which are Fourteen, ſtill called Inns; the old Engliſh name for Houſes of Noblemen, Biſhops, or Men of Extraordinary Note, The loweſt of which as being heretofore Preparatory to the other, and therefore may properly be placed firſt are,
WHich are Eight, and may probably be ſo called, becauſe there dwelt ſuch Clerks as did chiefly Study the forming of Writs, which regularly appertain to the Curſitors, which are Officers of Chancery; The firſt of theſe called Thavies Inn, was begun in the Reign of King Edward the Third, and ſince Purchaſed by Lincolns Inn, as was alſo Furnivals Inn; Then in Holbourn is384 Bernards Inn, Then New Inn, St. Clements Inn, Cliffords Inn, anciently the Houſe of the Lord Clifford, Staple Inn belonging to the Merchants of the Staple, and Lyons Inn, anciently a Common Inn with the Sign of the Lyon.
Heretofore many were entred here before they were admitted of the Inns of Court; But they are now taken up with Attorneys, Sollicitors, and Clerks who have their Chambers apart, and their Diet at a very eaſie Rate in a Hall together, where they are obliged to Appear in Grave Long Robes, and Black knit round Caps; Theſe belong all to ſome Inns of Court, who ſend yearly their Barriſters to Read to them.
SO named as ſome think, for that the Students therein are to ſerve; The Courts of Judicature are Four.
The Two Temples Purchaſed by ſome Profeſſors of the Common Law above 300 years ago, and called the Inner and Middle-Temple in relation to Eſſex Houſe; which was alſo a part of the Houſe of the Knight's Templers, and called the Utter Temple, becauſe Seated without Temple Bar.
385Lincolns Inn, belonging anciently to the Earls of Lincoln. And
Greys Inn belonging to the Noble Family of the Greys.
Theſe Societies are no Corporations, nor have any Judicial Power over their Members, but have certain Orders among themſelves, which have by conſent the force of Laws; For Lighter Offences they are only Excommuned or put out of Commons, and for Greater they loſe their Chambers and be expelled the Houſe, after which they are not to be Received into any of the other three Societies: And theſe alſo at Chappel, Hall, or Courts of Judicature, Wear a Grave Black Robe, and Cap, and at other times walk with Cloak and Sword.
They have no Revenues being not enabled to Purchaſe, But defray the Charges of the Houſe, with what is paid at Admittances and Quitrents for Chambers, Penſions, and other ſmall Duties.
The whole Company of Gentlemen in each Society, may be divided into Four parts; Benchers, Utter Barriſters, Inner Barriſters, and Students.
386Benchers are the Seniors, to whom is Committed the Government of the Houſe, And out of thoſe is yearly choſen a Treaſurer, who Receiveth, Diſburſeth, and Accompteth for all Moneys belonging to the Houſe.
Utter Barriſters are ſuch, who for Learning and Standing are called by the Benchers, to Argue in the Society Doubtful Caſes, which are called Moots from the Saxon Mote, or French Mot, a Word, and whilſt they Argue, Sit Uttermoſt on the Form's or Benches, which they call the Bar.
Out of theſe are choſen Readers for the Inns of Chancery, belonging to the reſpective Inns of Court where in Term time, and Grand Vacations, they argue Caſes in the Preſence of Attorneys and Clerks.
Inner Barristers are all the Reſt, who for want of Learning or Time are not to Argue; and yet in a Moote before the Benchers, Two of theſe Inner Barriſters do for their Exerciſe, Recite by heart the Pleading of the ſame Moot caſe in Law French, which Pleading is the Declaration at large of the ſame Moote Caſe, the one taking the part of the Plaintiff, the other of the Defendant.
They divide the year into three Parts, That is, the Two Learning Vacations,387 which begin the firſt Monday in Lent, and the firſt Monday after Lommas-day, and continue Three weeks and Three days each; the Term Times, and the Dead or Mean Vacations.
The Exerciſes of Study in theſe Learning Vacations, are the greateſt, which are in manner following:
The Benchers appoint the eldeſt Utter Barriſter to Read amongſt them openly in the Hall, whereof he hath notice half a year before; He then the firſt day about 8 of the Clock chuſeth ſome Statute, whereupon he grounds his whole Reading for that Vacation, and Declares ſuch Miſchiefs, and Inconveniencies as were unprovided for before the ſame Act, And then reciteth certain Doubts he hath deviſed, that may grow upon the Statute, and declareth his Judgment therein; After which, One of the younger Utter Barriſters repeateth One queſtion propounded by the Reader, and by way of Argument endeavoureth to prove the Readers Opinion to be againſt Law, and after him the Senior Utter Barriſters, and Readers one after another according to Seniority do declare their Opinions in the ſame; and then the Reader who did put the Caſe, endeavoureth to confute Objections388 laid againſt him, and to confirm his own Opinion; After which the Serjeants, and Judges (if any be preſent) declare their Opinions; Then the youngeſt Utter Barriſter again rehearſeth another Caſe, which is proſecuted as the former was: And this Exerciſe continueth daily about three or four Hours.
Out of thoſe who have Read once in the Summer Vacation, and are Benchers, is choſen always one to Read in Lent, who obſerves the like manner of Reading as before is Expreſſed.
In the mean Vacation after Dinner Caſes are Argued, and after Supper, Mootes brought and Pleaded by the Inner Barriſters, in the Preſence of the Utter Barriſters.
IN theſe Learning Vacations after Supper (or Drinking on Faſting Nights) in the Hall the Reader, with one or two of the Benchers comes in, To whom one of the Utter Barriſters propounds ſome doubtful Caſe, which being argued by the Benchers, and afterwards by him that moved the Caſe; The Benchers ſit down on the Bench at the upper end of the Hall, whence389 they are called Benchers, And upon a Form in the Middle of the Hall ſit Two Utter Barriſters, and on each ſide of them ſits one Inner Barriſter, who in Law French declareth to the Benchers (as Serjeants do at the Bar in the King's Courts to the Judges) ſome kind of Action: The one being as it were Retained for the Plaintiff, The other for the Defendant; Then the two Utter Barriſters Argue ſuch Queſtions as are diſputable within the Caſe, after which the Benchers do likewiſe declare their Opinions, how they take the Law to be in thoſe Queſtions.
In theſe Mootings the Junior argueth firſt, as do the Judges in the Exchequer Chamber, and Serjeants in open Courts of Judicature.
The Inner and Utter Barriſters Plead here in Law French, and the Benchers in Engliſh, and at the Readings, The Readers Caſes are put in Engliſh.
IN the Learning Vacation each Utter Barriſter, who is a Reader in the Inns of Chancery, go with Two Students of the Inn of Court, to the Inn of Chancery, where he is appointed to Read, and there meet him commonly Two of each Inns of Court, who ſitting as the Benchers do in the Inns of Court at their Mootes, they hear and Argue his Caſe.
In the Term time the only Exerciſe of Learning, is Arguing and debating Caſes after Dinner, and Mooting after Supper, as in the Vacation time.
IF there be a ſufficient number of Students to keep a Solemn Christmaſs, then the Students before Christmaſs hold a Parliament, and certain of them are appointed to be Officers in Imitation of the Kings Court, as Comptroller of the Inner Temple, ſo of the Middle Temple, ſtiled Lieutennant of the Tower, and Treaſurer, &c. Theſe bear Rule during the time of Chriſtmaſs, and are to behave themſelves391 with that Port and Gravity, as if they (as perhaps they may afterwards) were ſo in the Kings Houſe.
At ſuch time they have divers Divertiſments, as Feaſting every day, Singing, Dancing, Dicing, which is allowed to all Comers, and is ſo Exceſſive, that the Butlers Box uſually amounts to above 50 l. a Day and Night, With which and a Small Contribution from each Student, are the great Charges of the Christmaſs defrayed.
When their Treaſure is great they ſometimes create a Prince, giving him ſuch Title they think fit, And he hath all Officers, and a Court Suitable to a Great Prince, and many of the Prime Nobility and Great Officers of State have been Entertained by him, with Feaſting, Enterludes, &c. As was ſometime done with Great Magnificence by Sir John Lort, by the Title of Prince de la Grange.
From All Saints-day to Candlemaſs, each Houſe uſually hath Revells on Holy days, that is, Muſick, and Dancing, and for this is uſually choſen ſome young Student to be Maſter of the Revels.
EVery Quarter the Benchers cauſe one of the Standing Officers of the Houſe, to Summon a Parliament, which is an Aſſembly of the Benchers (which are called the Sage Company) in a place called the Parliament Chamber, Where they treat of matters for good Ordering of the Houſe. Here are the Readers for Lent and Summer Vacation Elected; The Treaſurer choſen; Auditors appointed, To take the Accompts of the old Treaſurer; Offences committed by any of the Society Puniſhed, &c.
In the Four Inns of Court are about 800 Students.
THe Common Law Student, when he hath been admitted of ſome Inn of Court, where he is firſt called a Moote Man, and after about Seven years Study an Utter Barriſter, and after Twelve years more, and having performed his Exerciſes is choſen a Bencher, and ſometime after a Reader; He then wears a long Robe different393 from other Barriſters, and is in Capacity to be made Serjeant, when the King pleaſe to call him, and when he is arrived to that Degree, he hath his Diet and Lodging in one of thoſe Two Inns called Serjeants Inn, And theſe are called Servientes ad Legem Serjeants at Law, and are as Doctors in the Civil Law, Only Doctoris appellatio est Magiſterij, Servientis vero Miniſterij; And therefore Doctors of Law are allowed to Sit within the Bar, in Chairs covered, whilſt Serjeants ſtand without the Bar bare Headed, Only their Coifs or Caps on: And,
IS, when the number of Serjeants is Small, The Lord Chief Juſtice of the Common Pleas, by the Advice and Conſent of the other Judges, makes choice of 6 or 8 more, or leſs, of the moſt grave, and learned of the Inns of Court, and preſents their Names to the Lord Chancellor, or Keeper, who ſends by the Kings Writ to each of them, to appear on ſuch a day before the King to Receive the State and Degree of a Serjeant at Law; at the Time appointed; They being habited in Robes394 of Two Colours, viz. Brown and Blew, come accompanied with the Students of the Inns of Court, and attended by a Train of Servants and Retainers in certain Peculiar Cloth Liveries to Weſtminster-Hall, there in Publick take a Solemn Oath, and are Clothed with certain Robes and Coifs, without which they may no more be ſeen in publick, and making their Count at the Common Pleas Bar, and cauſing Rings to be diſtributed amongſt the Officers, and Clerks of the Court, they afterwards Feaſt the great Officers and Perſons of the Kingdom in a Magnificent manner, and give Gold Rings to the Princes of the Blood, Archbiſhops, Chancellor, and Treaſurer of Forty ſhillings value, to Earls and Biſhops, Rings of Twenty Shillings value, to other Officers, Barons, Prelates, &c. Rings of leſs value. And, out of theſe are choſen
WHen any Judges are wanting, The King by Advice of his Counſel makes choice of ſome of theſe Serjeants to ſupply his or their Places, and Conſtitutes him, if Chief Juſtice of the King's Bench by Writ; But if395 others, then he or they are Conſtituted by Letters Patents Sealed by the Chancellor, who Sitting in the Middle of the reſt of the Judges, in open Court by a Set Speech Declares to the Serjeant, or Serjeants there brought in, the King's Pleaſure, and to the People the Kings Goodneſs in providing the Bench with ſuch Able, Honeſt Men, and cauſeth the Letters Patent to be Read, and being departed, The Chief Juſtice placeth him on the Bench Junior to all the reſt, and having taken his Oath, well and truly to ſerve the King and his People in the Office of Juſtice, To take no Reward, To do equal and Speedy Juſtice to all, &c. he Sits to the Execution of his Office; And now being a Judge hath thereby great Honour and a Conſiderable Salary, beſides Perquiſites, for each one hath at leaſt 1000 l. a year from the King, and now beſides his Serjeants Habit he hath a Cloak put over him, and cloſed on his right Shoulder, and inſtead of his Caputium lined with Lamskins, it is now lined with Minever, or De Minuto vario, only the Two Lord Chief Juſtices, and the Lord Chief Baron of the Exchequer, have their Hoods, Sleeves and Collars, turn'd up with Trimme.
396To theſe Two Serjeants Inns belong the Twelve Judges and about Twenty ſix Serjeants.
CAlled Doctors Commons, being Purchaſed by Dr. Henry Harvy long ſince Dean of the Arches, for the Profeſſors of the Civil Law in this City, where Commonly the Judge of the Arches, The Judge of the Admiralty, And the Judge of the Prerogative, and divers other Eminent Civilians Preſiding, and having their Diet and Lodging there in a Collegiate Manner: It was uſually known by the name of Doctors Commons, which being conſumed in the late Dreadful Fire, and now Rebuilt at the Charge of the ſaid Doctors, they now keep their Courts and Pleadings there every Term, which begins and ends almoſt at the ſame time with that at Westminſter. Thoſe that are allowed to be ▪
Advocates, and plead in theſe Courts are all to be Doctors of the Civil Law, in one of the Univerſities of England, who upon their Petition to the Archbiſhop of Canterbury, and his Fiat obtained are admitted by the Judge of397 the Court, on condition, not to Practiſe one whole year after his
Admittance, which is in this manner;
Two Senior Advocates in their Scarlet Robes, with the Mace before them, conduct him up to the Court, with Three low Reverences, and Preſent him with a ſhort Latin Speech, and the Reſcript of the Archbiſhop; Then the Oaths of Allegiance, and Supremacy, and ſome other preſcribed by The Statute of the Arches being taken, he is Admitted by the Judge, and a Place or Seat in the Court aſſign'd him, either à Dextris, or Siniſtris, which he is always to keep when he pleads.
The Judges, and all the Advocates in theſe Courts, when they plead, always wear their Scarlet Robes, with Hoods lined with Taffata if they be of Oxford, or White Miniver Furr if they be of Cambridge, and all Black Round Velvet Caps; and the Proctors wear, or ought to wear Hoods lined with Lambskin, if not Graduats; But if Graduats, Hoods, according to the Degree.
There are divers other Civilians, whereof ſome not Advocates, are Chancellors to Biſhops or Commiſſaries: The Vicars Generals, and Chancellors are appointed by the reſpective Archbiſhops, and Biſhops by Letters Patent398 under their Seals, and Confirmed by the Dean, and Chapter of the reſpective Cathedrals.
The Proctors are perſons that Exhibit their Proxies for their Clyents, and make themſelves parties for them, and draw and give in Pleas, or Libels and Allegations in the behalf of their Clyents, produce Witneſſes, prepare Cauſes for Sentence, and attend the Advocates with their Proceedings. And their
Admittance is alſo by the Fiat of the Archbiſhop, Introduced by the Two Senior Proctors, and are allowed to Practiſe immediately after their Admiſſion; They wear Long Black Robes and Hoods lined with White Furr, Taking the Oaths now Enjoyned by Act of Parliament.
All Proceſs in the Court of Arches, runs in the Name of the Judge thus: Robertus Wiſeman Miles LL. Dr. Almae Curiae Cant 'de Arcubus London', Officialis Principalis; and Returnable in the Comman-Hall at Doctors Commons.
The Title of the Judge of the Admiralty is, Supremae Curiae Admiralitatis Angliae Locum tenens Judex ſive Praeſidens: The Writs and Decrees run in the Name of The Lord High Admiral; and the Court held alſo in the Common Hall at Doctors Commons.
399The Title of the Judge of the Praerogative Court is, Curiae Praerogativae Cant 'Magiſter Cuſtos ſive Commiſſarius; And all Citations and Decrees run in the Name of the Archbiſhop.
The Judge is attended by the Regiſter, who ſets down the Decrees and Acts of the Court, and keeps the Records of all Original Wills, and Teſtaments of parties Dying, having Bona Notabilia, in the place called the Praerogative Office, where (for a moderate Fee) any one may Search for, and have a Copy of any Teſtament or Adminiſtration, ſince the Rebellion of Wat Tyler and Jack Straw.
Upon Appeals to the Court of Delegates, the Judges are appointed by the Lord Chancellor under the Great Seal Pro illa vice, which Court is alſo kept in the ſame Common-Hall the day after the Praerogative in the Afternoon. The Citations, and Decrees there run in the King's Name: And from thence of courſe lies no Appeal; but the King of his meer Praerogative Royal doth many times grant A Commiſſion of Review.
BY Charters and Acts of Parliament of Henry the Eighth, and ſince, have certain Priviledges, Whereby no Man though a Graduate in Phyſick in Oxford, or Cambridge, may without Licenſe under the ſaid Colledge Seal, Practiſe Phyſick in London, or within ſeven Miles thereof, nor in any other part of England, (in caſe he hath not taken any Degree in Oxford or Cambridge) whereby they have power to puniſh Offenders, make By-Laws, purchaſe Lands, ſearch Apothecaries Shops, in and about London, are freed from Offices and bearing Arms, may practiſe Phyſick or Chyrurgery, not only in London, but in any other part of England.
This Society had anciently a Colledge in Knight-Rider-Street, the Gift o•Dr. Linacre, Doctor to King Henry the Eighth, afterwards had their Colledge in Amen Street, Endowed by Dr. He•vey, with his whole Inheritance, which being conſumed in the late Dreadful Fire: The Fellows having purchaſed Ground, have now Raiſed a Magnificent401 Structure in Warwick Lane. And of this Colledge is
A Preſident, Four Cenſors, and Eight Elects, who are all Principal Members of the Society, one of which is choſen yearly to Preſide.
The Four Cenſors have by their Charter Power to Survey, Correct, and Govern all Phyſicians, or others that ſhall practiſe Phyſick in London, or within ſeven Miles of the ſame, and to puniſh Offenders as they ſhall ſee cauſe. For all which ſee the Statutes mentioned in Coke's 4 Inst. fo. 251.
In Rot. Pat. 32 H. 6. M. 17. it's Recorded, That the King with Aſſent of his Council, aſſigned certain Phyſicians, and a Chyrurgeon, to Adminiſter in and about his perſon Potions, and other parts of Phyſick, and to moderate his Dyet. To which they were every one commanded to be Attendant. Whereby it appears, No Phyſick ought to be given to the King without Warrant, and that by Advice of his Privy Council, and no other Phyſick than what is ſet down in Writing, and that•hey may uſe the Aid of Chyrurgeons Named in the Warrant; but no Apo•hecary, they being to prepare all things•hemſelves.
402The Science of Phyſick by the Statute of 32 H. 8. is Declared, to contain the Knowledge of Chyrurgery.
If one of the Myſtery of a Phyſician take a Man in Cure; and give him ſuch Phyſick that he dye within three days thereof without any Felonious intent•and againſt his Will, it is no Homicide.
But Britton ſaith, If One, not of the Mystery of a Phyſician, or Chyrurgeon, take upon him the Cure of a Man, and he dieth of the Potion, or Medicine; this is Covert Felony.
BUilt by Sir Thomas Greſham, and Endowed by him with the Revenue of the Royal Exchange, by him Built; before which he gave one Moiety to the Mayor and Commonalty of London upon Truſt, That the Major and Aldermen ſhould find Four able perſons to Read Divinity, Geometry, Aſtronomy, and Muſick there, and to Allow each of them Fair Lodgings, and 50 l. a year; and the other Moiety to the Company of Mercers upon Truſt, to find Three able Perſons to Read Civil Law, Phyſick, and Rhetorick, and to have Lodgings, and the like403 Allowance. Theſe ſeveral Lecturers are to Read in Term time every Day, except Sundays; In the Forenoon in Latin, and in the Afternoon the ſame in Engliſh: The Muſick Lecture only in Engliſh.
There is alſo a Mechanick Sort of Lecture for Natural Philoſophy, Inſtituted by Sir John Cutler, with a Salary of 50 l. per Annum, to be Read at the time•nd place where the Royal Society ſhall meet.
THis was Founded by Thomas White Doctor in Divinity, for the uſe of the Clergy in London, and Liberties•hereof, and a part thereof for Twenty•oor People, for which he gave Three Thouſand pounds, and for the Main•enance of the poor People 120 l. yearly for ever, and 40 l. yearly for a Sermon in Latin at the beginning of•very Quarter, and a plentiful Dinner•or all the Clergy that ſhall meet•here. There was a Spacious Library•uilt by John Sympſon Rector of St. Olaves Hartſtreet, and well furniſhed with Books.
THis was heretofore a Convent of Carthuſian Monks, called in French Des Chartreaux. It is called Sutton's H••pital alſo, and conſiſts of A Maſter, o•Governour, A Chaplain, A Master, and Uſher to Inſtruct 44 Scholars, beſide•80 Decayed Gentlemen, Souldiers, an•Merchants, who have all a plentif••Maintenance of Dyet, Lodging, Cloath and Phyſick, &c. The Scholars fit for the Univerſity have Twenty pound•yearly allowed them for Eight year after they come to the Univerſity〈◊〉and others fitter for Trades have a conſiderabl Sum of Money to bind them out Apprentices. And they have all Officers expedient for ſuch a Society; as Phyſician, Apothecary, Steward, Cooks, Butlers, &c. who have all Competent Salaries:
This vaſt Revenue was the Gift of an ordinary Gentleman, Mr. Thomas Sutton, Born in Lincolnſhire, and was of ſuch Account, that by the King's Letters Patents, Perſons of the Higheſt Quality; as the Archbiſhop of Canterbury, Lord Chancelor, Lord Treaſurer ▪ and Thirteen others are Governours, and Overſeers thereof.
ARe St. Paul's, Founded An 1512. by John Collett Dr. of Divinity and•ean of St. Paul's, for 153 Children to•e Taught gratis; There being a Maſter, Uſher, and Chaplain, who have•arge Stipends, and the Maſter, Wardens, and Aſſiſtants of The Company of•ercers in London have the overſight•hereof.
And divers other Schools which are•ndowed; as Merchant-Taylors, Mercers-Chappel, &c. which for brevity ſake I•mit.
The Arms of the City of London•re Argent, A Croſs Gules, with the Sword of St. Paul, not the Dagger of William•alworth, as ſome have conceited;•or this Coat did belong to the City before Walworth ſlew Wat Tyler, as•earned Antiquaries affirm.
THis Burrough was granted by King Edward the Sixth by Lett•ers Patents to the Major, Commonal•y, and Citizens of London, and is cal•ed the Bridge-Ward, without (and Governed by One of the 26 Aldermen406 of) London; It hath nothing Remarkable, but that it pays more in a Subſidy to the King, and Muſters more Men than any City in England, except London.
THE Ancient, Stately Abby Church here, was Founded by the Pious King Edward th•Confeſſor, and richly Endowed, afterwards Rebuilt by King Henry the Third with that rare Architecture now ſeen ▪ Wherein are moſt Magnificent Tombs, and Monuments of our Kings, Queens, and Greateſt Nobles; To the Eaſt-end of which is added A Chappel by King Henry the Seventh, which for curiou•Artificial Work without, and within ▪ For a Monument of Maſſy Braſs moſt curiouſly wrought, is ſcarce to be parallel'd in the whole World.
This huge Fabrick ſtands where firſt was the Temple of Apollo, and afterwards King Sebert the Firſt Chriſtened King of the Eaſt Saxons, who firſt Built St. Paul's Church in London, Built here likewiſe this Church to St. Peter.
407It taketh the name from this Monaſtery, which Minſter ſignifieth, it being called Weſtminſter in reſpect of the Eaſt Miniſter, not far from the Tower of London.
This Monaſtery 30 Hen. 8. was Surrendred to the King, who Erected thereof a Dean and Chapter, Anno 33 Hen. 8. It was raiſed to a Biſhop•ick, and Tho. Thurlby made the firſt and laſt Biſhop thereof. Queen Eliz. Converted it into a Collegiate Church, and therein placed a Dean, Twelve ſeculiar Canons, or Prebendaries, Pety Canons, and others of the Quire to the number of Thirty; Ten Officers, belonging to the Church, as many Servants belonging to the Collegiate Diet; Two School-Maſters; Forty Scholars; Twelve Alms-men with plentiful Allowance for all, beſides Stewards, Receivers, Regiſters, Collectors and other Officers, The Principal whereof is the High Steward of Westminſter, who is uſually one of the Prime Nobility.
The Dean is intruſted with the Rega•ia at the Coronation, and Honoured with a place of neceſſary Service at•ll Coronations, and with a Commiſ•ion of the Peace within the City and Liberties of Weſtminster.
408The Dean and Chapter inveſted with all Juriſdiction, both Eccleſiaſtical and Civil, not only within the City, and Liberties of Westminſter; but within the Precincts of St. Martins le Grand, and in ſome Towns in Eſſex, Exempted in the one from the Juriſdiction of the Biſhop of London; And in the other from that of the Archbiſhop of Canterbury.
It hath a Royal Juriſdiction for Eccleſiaſtical Cauſes, and Probate of Wills, and a Commiſſary from whom is no Appeal, but to the King in his Chancery; Who thereupon Iſſueth out a Commiſſion of Delegates under the Great Seal of England.
When the Convocation is Adjourned from St. Pauls (for the conveniency of being nearer the Parliament) to Weſtminſter: The Biſhops firſt declare, (upon a Proteſtation made by the Dean there,) that they intend thereby not to violate that High Priviledge, viz. That no Archbiſhop, or Biſhop may come there without leave of the Dean firſt obtained.
There is alſo a fair publick Library, free for all Strangers to Study both Morning and Afternoon, always in Term time.
409Within this City are Twelve Wards; Out of which are Elected One Burgeſs, and One Aſſiſtant in every Ward, and out of theſe Twelve, Two are Elected yearly on the Thurſday in Easter Week, to be Chief Burgeſſes, and ſo to continue for the year enſuing; Theſe Burgeſſes have Authority by Act 27 Eliz. To Hear, Examine, Determine, and Puniſh according to the Laws of the Realm, and lawful Cuſtoms of the City of London, Matters of Incontinency, Common Scolds, Inmates and Common Annoyances, and to commit ſuch Perſons as ſhall offend againſt the Peace, and thereof give knowledge within Twenty four hours to ſome Juſtice of Peace within the County of Middleſex.
Next the Abbey Church ſtood the Palace Royal, and uſual Place of Reſidence of the Kings of England, who ordinarily held their Parliaments, and Courts of Judicature in their Dwelling Houſes, and many times ſate themſelves in the ſaid Courts of Judicature, as they do ſtill in Parliament: But after the Parliament was divided into two ſeveral Houſes, which was about 50 Ed. 3. The Commons aſſembled in the Chapter Houſe of the Abbot of Weſtminſter, until 1 Ed. 6. which gave to the410 King Colledges Chauntries, Free Chappels, &c. The King being thereby Poſſeſſed of the Ancient Beautiful Free Chappel of St. Stephen, Founded by King Stephen, which had Revenues of the old yearly value of 1085 l. It afterwards ſerved for the Houſe of Commons.
A great part of this Huge Palace was in the time of Hen. 8. deſtroyed by Fire, what remained hath ſtill been Employed for the uſe of the Parliament and Courts of Judicature; The Great Hall where thoſe are kept Built by King William Rufus, or by Richard the Second as ſome hold, being for all Dimenſions not to be equalled by any Hall in Chriſtendom.
Radulphus de Ingham Chief Juſtice of England, a very poor Man being Fined before him at 13 s. 4 d. in another Term moved with Pity, cauſed the Record to be raſed and made 6 s. 8 d. For which he for his Fine made the Clock to be heard into Weſtminster Hall, and the Clock-houſe which coſt 800 Marks, Tempore Ed. 1. and continueth to this Day.
Anno 37 Hen. 8. The King's Mannor of Westminſter, was made an Honour.
THis is an Ancient City, For in Ancient Manuſcripts it appears, That In tempore Steph. Regis de nova Fundata & ut Villa populata Communitas fact•.
And it is highly commended for many things, Quod ſuis Opibus Frequentia, Aedificiorum Elegantia, Templorum Pulchritudine & Numero (Paraecias enim plus minus 30 complectitur,) Civum ſedulitate in Principem fide in Exteros Humanitate inter Celebrrimas Britanniae Urbes merito connumeranda, &c. Moenibus Validis (in quibus crebrae diſpoſitae Turres & Undecim Portae) undique Obſepta niſi ad ortam qua Flumen (cum ſinuoſo flexu 4 Pontibus pervium Septentrionalem urbis partem interluerit) profundo alveo & praecipitibus Rupis defendit; It is preferred before all the Cities in England, except London, hath above 30 Pariſhes, and is as large within the Walls as London; it had within it and the Liberties Six Religious ▪ Houſes, and One Hoſpital,
Anno 27 Hen. 8. The Biſhoprick of Norwich becoming void by the Death of Richard Nick, commonly called the Blind Biſhop, The King nominated412 the Abbot of the Monaſtery of St. Bennets de Hulmo in the County of Norwich, to be Biſhop of Norwich. And afterwards 4 Feb. 27 Hen. 8. It was Enacted by Authority of Parliament, That ſuch Perſon as ſhould be Elected and Conſecrated Biſhop of Norwich, ſhould have, and enjoy, united to the ſaid Biſhoprick the Monaſtery of St. Bennets; And all Manors, &c. belonging to the ſame. And ſhould be Abbot of the ſaid Monaſtery of St. Bennets, and have the Dignity of the ſaid Abbacy United, Incorporated, and Knit to the ſaid Biſhoprick.
For the Courts of Juſtice in this City, we have Treated of the like in London, and therefore ſhall only mention an Act of Parliament concerning the Juriſdiction thereof, 2 R. 2. N. 39. Not in Print; Whereby it is Enacted for the Citizens of Norwich, That if their Cuſtoms, and Uſages heretofore uſed, or hereafter to be uſed be Difficult or Defective in part, or in all, Or that the ſame need any due amendments for any matter ariſing, whereof Remedy was not aforetime had; That then the Bailiffs and Twenty four Citizens of the ſame City, ſo therefore yearly to be Choſen, or the413 greater part of them, ſhall from henceforth have Power to Ordain ſuch Remedies as are moſt agreeable to Faith and Reaſon; and for the moſt Profit, the Good, and Peaceable Government of the ſame Town, and of Strangers thereto repairing as to them ſhall ſeem beſt; So as ſuch Ordinance be profitable for the King ▪ and his People.
By the Statute of 14 Hen. 4. The Merchants and Artificers of Worſteds in Norfolk, may ſell their ſingle Worſteds to any Place, or Perſons in Amity with the King notwithſtanding any Inhibition, or Liberty to the contrary.
In the time of King Edward the Confeſſor, there were 1300 Citizens within this City, and they paid 20 l. to the King, and 10 l. to the Earl; And beſides theſe 20 s. and Four Prebendaries, and Six Sextaries of Honey, a Bear, and Six Dogs to Bait him; Now it pays 70 l. to the King, and 100 l. to the Queen, and a Palfrey, and 20 l. of White Rent to the Earl.
It is a County of it ſelf, and hath Two Sheriffs, and large Liberties without the Walls; See the Statute of 33 He•. 8. How many Attorneys ſhould be at Norfolk; See Rot. Parl. 18 Ed. 1.414 f. 5. Concerning the ancient Liberties of this City.
Burgi & Civitat 'Fundat' & Aedificat 'ſunt ad Tuitionem Gentium & Populorum Regni, & idcirco obſi•vdri debent, cum omni Libertate Integ•itate & Ratione.
The Beautiful Cathedral was begun by Herbert Biſhop of Norwich, Anno 9 Willielmi Rufi.
The Strong Caſtle called••anch Flower Environed with the City, but no part thereof, but of the County of Norwich, was not Built by Bigott Earl of Norwich, for we find a Charter of King Stephen. Rex, &c. Sciatis me Dediſſe in Feode & Hereditate Willielmo Commiti Warren Filio meo Caſtellum Norwici cum Toto Burgo, &c.
And Reef de W•et Earl of Norwich, Defended this Caſtel againſt William the Conquerour, who was driven out of England, and Travelled with his Wife to Jeruſalem, Vide Coke's 4 Inſt. cap. 52.
THeſe are the Two Eyes, or Luminaries of the Kingdom, and are now Stiled Univerſities; A Profeſſione Univerſalium Scientiarum & Artium Liberalium A Univerſity being properly an Incorporation, under one Government of many publick Schools, ordained eſpecially for the Study, and Profeſſion of Divinity, Civil-Law, and Phyſick, as alſo Philoſophy, and other Liberal Arts and Sciences. And of theſe Univerſities, the firſt and moſt ancient is thought to be
QUaſi Ousford Iſidis Uadum, From the name of the Chief River Iſis whereon it is Seated; It lies in 51 Degrees, 42 Minutes Latitude, and above 22 Degrees Longitude, almoſt the ſame Climate with the Famous Univerſity of Athens, and was a place for publick Studies above 900 years ago, and much Augmented by the Learned Saxon King Alured; And is an ancient City, conſiſting of Two ſorts of Inhabitants,416 viz. Students and Citizens living one amongſt another; yet wholly Separate for Government Laws and Manners ▪ The Univerſity, next under the King being Governed by
The Chancellor, who is commonly ſome of the prime Nobility, Elected by the Students in Convocation, to continue Durante Vita: And is to take care of the Government of the whole Univerſity, To maintain the Liberties and Priviledges thereof, To call Aſſemblies, To hear and determine Controverſies, Call Courts, Puniſh Delinquents; &c. And next to him in Dignity is,
The High Steward nominated by the Chancellor, and approved by the Univerſity, and is alſo Durante Vita; and to Aſſiſt the Chancellor, the Vice Chancellor and Proctors upon their Requeſts, in the Execution of their Places; Alſo to hear, and determine capital Cauſes, according to the Laws of the Land, and Priviledges of the Univerſity, ſo oft as the Chancellor ſhall require him. And the Third Officer is,
The Vice Chancellor, who is commonly the Head of ſome Colledge nominated yearly by the Chancellor; And in the Chancellors ▪ Abſence may do almoſt417 whatever the Chancellor might do, if preſent; Moreover he takes care that Sermons, Lectures, Diſputations, and other Exerciſes be performed, That Heretiques, Fanatiques, Nonconformiſts, Panders, Bawds and Whores, &c. be expelled the Univerſity, and Converſe of Students, That the Proctors, and other Officers, and publick Servants of the Univerſity perform their Duty, And that Courts be duly called, and Law Suits determined without delay; In a word, that whatever is for the Honour or Profit of the Univerſity, or may conduce to the Advancement of good Literature, may be carefully obtained. And Fourthly,
The Two Proctors choſen every year out of the ſeveral Colledges by Turns; Theſe are to Aſſiſt in the Government of the Univerſity, and particularly in Scholaſtick Exerciſes, taking Degrees, in Searching after, and Puniſhing all Violators of Statutes, or Priviledges of the Univerſity, all Night-Walkers, &c. They have alſo the Overſight of Weights, and Meaſures, that the Students may not be wronged. And next is,
418The publick Orator, who is to write Letters according to the Orders of the Convocation, or Congregation, And to make Solemn Harangues at the Reception of any Prince, or Great Perſon. And then is,
The Cuſtos Archivorum, who is not only to Collect and Keep the Charters, Priviledges, and Records that concern the Univerſity; But alſo is to be always ready to produce them before the Chief Officers, and to Plead the Rights and Priviledges of the ſaid Univerſity. And Laſtly is,
The Regiſter of the Univerſity, who is to Regiſter all Tranſactions in Convocations, Congregations, Delegacies, &c. And beſides theſe are certain publick Servants as,
The Six Beadles, ſo called from the High Dutch Briton, or Low Dutch Bidden, To Summon, Admoniſh, or Pray. Three of theſe are called Squire Beadles, carry large Maces of Silver Guilt, and the other Three are Yeomen Beadles, and carry large Silves Maces Un-guilt; Their Office is always to Wait on the Vice Chancellor in Publick, doing what belongs to his Place, and at his Command to Seiſe any Delinquent and carry him to Priſon, To Summon any, To publiſh the calling of Courts, or419 Convocation•, To conduct Preachers to Church and Lecturers to Schools, &c. And upon more Solemn occaſions, is a Seventh called
The Virger, from the Silver Rod which h•carries, who with the other Six walks before the Vice Chancellor, and is ready to obſerve his Commands, and to wait on Grand Compounders, &c.
The other publick Servants, of leſſer note we ſhall not mention.
The Students in Oxford anciently (as now in moſt Univerſities beyond Seas) without any Diſtinction of Habit lived in Citizens Houſes, and had Meeting places to hear Lectures and Diſputes; After that, were divers Houſes for Students only to live together called Inns from the Saxon, or Hoſtells from the French. And now
Halls where every Student lived wholly upon his own Charges. And of theſe were formerly Two hundred, and in them as Armachanus writes 30000 Students, until
Colledges were by the Bounty of divers Kings, and other Patrons Endowed with Revenues, to maintain ſuch Students as by Merit, and Worth ſhould be choſen from time, to time, in Lodging, Dyet, Cloaths and Books, with420 large Salaries; For Profeſſors to Inſtruct them, for a Head to Govern them according to certain Statutes, and Ordinances made by the ſaid Patrons, and Founders. And the firſt of Colledges, Endowed in Europe are Univerſity Baliol, and Merton, all made Colledges in the 12th Century after Chriſt. The other 15. Colledge's, viz. Chriſts Church, St. Mary Magdalen, New Colledge, All Souls, Corpus Chriſti, Queens Colledge, St. Johns, Trinity Colledge, Brazen Noſe, Oriel Colledge, Wadham, Lincoln, Exeter, Jeſus, and Pembroke Colledge, are of leſſer Antiquity: And theſe Colledge•have within their own Walls Lectures, Diſputations, All Profeſſions, and Liberal Sciences, Read and Taught, and in ſome of them publick Lectures for all Comers, and large Salaries for the Readers; In ſo much as they ſeem ſo many compleat Univerſities: And are not Inferiour to ſome in our Neighbouring Countries.
The Halls where Students live of their own Means (only Excepted ſome Annual Penſions annexed to One or Two of them) are in number Seven, viz. Magdalen Hall, Edmund Hall, Alban Hall, New Inn, Glouceſter Hall, St. Mary Hall, Hart Hall.
421The whole number of Students in Oxford, that live upon the Revenue of the Colledges are about 1000; And of other Students about twice as many, beſides, Stewards, Manciples, Butlers, Cooks, Porters, Gardiners, &c.
The Diſcipline in theſe Colledges, and Halls, is, Firſt all that intend to take any Degree, are to take their Dyet and Lodging, and have a Tutor, conſtantly in ſome Colledge or Hall; then they are to perform all Exerciſes, to be Subject to all Statutes, and to the Head of the Houſe: Next they are to be Subject to the Chief Magiſtrate of the Univerſity: To perform publick Exerciſes, and to be ſubject to the publick Statutes thereof; To ſuffer themſelves to be ſhut up by Night in their Houſes; They are never to be ſeen abroad out of their Chambers, much leſs out of their Colledges, without their Caps and Gowns (which is no where elſe obſerved but in Spain,) their Gowns are all to be Black, only the Sons of the Higher Nobility are herein Indulged, and all Doctors are Honoured with Purple, or rather Scarlet Robes.
422The Degrees taken in the Univerſity are only Two, viz. Batchelour, and Maſter anciently as well in Divinity, Law, and Phyſick, as in Arts. But now the Degrees in thoſe three Profeſſions are Batchelours, and Doctors, The time required by Statute for taking the aforeſaid Degrees, is Four years Study to be a Batchelor, and Three years more to be Maſter; To take the Degree of Doctor of Divinity, the Student muſt firſt take the Degree of Maſter of Arts; Then after Seven years more he may be Batchelor, and Four years after that Doctor in Divinity. Three years after Maſter of Arts, the Student may be Batchelor, and in Four years more Dr. of Laws, and the like for Dr. of Phyſick: The Exerciſes required for taking theſe Degrees are many, and difficult; yet not ſuch but they may be performed in leſs time by any of good Ability.
In the afore mentioned Three Profeſſions, and in the Arts there Proceeds Maſters, or Doctors yearly about 150, and every Lent about 200 Batchelors of Arts.
At the Act, or time of Compleating the Degree of Maſter, both in the aforeſaid Three Profeſſions, and Arts, which is the Monday after the 6th of423 July yearly; there are uſually great Solemnities, not only for publick Exerciſe, but alſo Feaſtings, Comedies, and a mighty concourſe of Strangers from all Parts to their Friends, then compleating their Degrees; whereby, and by the fet Fees, it coſts a Doctor about 100 l. and a Maſter of Arts about 20 or 30 l.
Many Priviledges have been granted to the Univerſities by Charter of divers Kings, Favourers of Learning; As by Charter of King Edward the Third, The Mayor of Oxford is to obey the Orders of the Vice Chancellor, and to be in ſubjection to him.
The Mayor with the Chief Burgeſſes of Oxford, and alſo the High-Sheriff of Oxfordſhire, every year in a Solemn manner take an Oath given by the Vice Chancellor; To obſerve and conſerve the Rights, Priviledges and Liberties of the Univerſity of Oxford.
And every year on the day of St. Scholastica, (being 10 February,) a certain number of the Principal Burgeſſes, Publickly and Solemnly do pay each one a Penny, in token of their Submiſſion to the Orders and Rights of the Univerſity.
424By Charter of Hen. the Fourth, It is left to the choice of the Vice Chancellor, whether any Member in the Univerſity there Inhabiting, accuſed for Felony, or High Treaſon ſhall be tried by the Laws of the Land, or by the Laws and Cuſtoms of the Univerſity, Tho' now where Life or Limb is concerned, the Criminal is left to be Tried by the Laws of the Land.
No Student of the Univerſity may be Sued at Common Law for Debts, Accompts, Contracts, Injuries, &c. but only in the Courts of the Vice-Chancellor, who hath Power as aforeſaid to Determine and Puniſh Delinquents; To Impriſon, Inflict Corporal Puniſhment, To Excommunicate, To Suſpend, and to Baniſh.
The Univerſities are Subject to the Viſitation, or Correction of none but the King, or whom he pleaſe to Commiſſionate.
The Chancellor, and in his abſence the Vice-Chancellor, is not only in Place, but in all Affairs of Moment (though concerning the City it ſelf) Superiour to the Mayor of the Town.
All Members of the Univerſity are ſubject to the Vice-Chancellor, and his Judicial Courts; which are Ruled wholly by the Civil Law.
425By the Statute of 13 Eliz. The Two Univerſities are Incorporated (albeit they were ancient Corporations before.) All Letters Patent, Liberties, Priviledges, &c. granted to either of the Univerſities are Eſtabliſhed, and Confirmed.
King James the Firſt Honoured both Univerſities, with the Priviledge of ſending each Two Burgeſſes to Parliament.
The Terms in Oxford begin the Firſt on the 10 of October, and ends the 17 of December, and is called Michaelmas Term; Second called Hillary or Lent Term, begins the 14 of January, and ends the Saturday before Palm Sunday; The Third called Eaſter Term, begins the 10 day after Eaſter, and ends the Thurſday before Whitſunday; The Fourth is called Trinity Term, beginning the Wedneſday after Trinity Sunday, and ends after the Act ſooner or later, as the Vice-Chancellor, and Convocation think meet.
There are beſides in Oxford many ſtately publick-Schools, The famous Bodleian Library, which for a Noble, Lightſom Fabrick; number of choice Books, curious Manuſcripts, diverſity of Languages, Liberty of Studying, Facility of finding any Book, may426 equal the Famous Vatican. The Curious Architecture of the Theater, The Excellent Printing Preſſes, The Publick Phyſick Garden, &c. are not for our purpoſe further to deſcribe.
WHat hath been ſaid of Oxford, may ſuffice for the Univerſity, and Town of Cambridge; which if ſhe will, in Complaiſance at any time give place to Oxford, yet at the ſame time, ſhe will Challenge it before any other Univerſity in the Chriſtian World. But in ſome few things ſhe differs from Oxford, as for that,
The Chancellor is not ſo (Durante Vita) but may be elected every Two years, Aut manere in eodem Officio durante Tacito Conſenſu Senatus Cantabr ': He hath under him a Commiſſary, who holds a Court of Record of Civil Cauſes, for all Priviledged Perſons under the Degree of Maſter of Arts, where all Cauſes are Tried, and Determined by the Civil and Statute Laws; and by the Cuſtoms of the Univerſity.
427The High Steward is choſen by the Senate, and holds by Patent from the Univerſity.
The Vice Chancellor is choſen yearly by the Senate on the 3d day of November, Out of Two Perſons nominated by the Heads of the ſeveral Colledges, and Halls.
The Two Proctors are choſen every year as at Oxford, according to the Circle of the Colledges and Halls. There are alſo,
Two Taxers, who with the Proctors have care of Weights and Meaſures, as Clerks of the Market. There are alſo,
Three Squire Beadles, and one Yeoman, Beadle.
The Students here have no Houſes but what are Endowed: For the Colledges, and Halls differ only in name. And theſe Houſes, Endowed are but Sixteen, viz. St. Peters Colledge, Clare Hall, Pembroke Hall, Corpus Chriſti Colledge, alias Bennet Colledge, Trinity Hall, Convile and Cains Colledge, Kings Colledge, Queens Colledge, St. Katherines Hall, Jeſus Colledge, Christs Colledge, St. Johns Colledge, Magdalen Colledge, Trinity Colledge, Emanuel Colledge, Suſſex and Sidney; But theſe are generally ſo large, that the number of Students428 is commonly little different from thoſe of Oxford.
Degrees at Cambridge are uſually taken as at Oxford, Except in Law, and Phyſick, whereof after Six years they may take the Degrees of Batchelour, and after Five years more, that of Doctor.
The firſt Tueſday of July is always. Dies Comitiorum, there called the Commencement; Wherein the Maſters of Arts, and the Doctors of all Faculties, compleat their Degrees reſpectively, as the Batchelours of Arts do in Lent, beginning at Aſhwedneſday.
Many Priviledges have been likewiſe granted by ſeveral Kings to this Univerſity, As every Michaelmaſs-day, The Mayor of the Town, at the Entrance into his Office, takes a Solemn Oath before the Vice Chanceller to Obſerve, and Conſerve the Priviledges, Liberties and Cuſtoms of the Univerſity: Alſo on Friday before St. Simon and Jude at a Magna Congregati in St. Maries Church, The Mayor brings with him Two Aldermen, Four Burgeſſes, and Two of every Pariſh, to take their Oaths before the Vice Chancellor, for the due ſearch of Vagabonds, Suſpected Perſons, &c. At the ſame are Sworn 14 Perſons for the Univerſity,429 and Fourteen for the Town to look to the Paving, and Cleanſing of the Street.
The Univerſity hath alſo a Court Leet, held twice every year, wherein are preſented all Nuſances, &c.
The Terms in Cambridge, begin Lent Term, the the 13 of January, and ends the Friday before Palm-Sunday, Easter Term the Wedneſday after Eaſter Week, and ends the Week before Whitſuntide; Trinity Term the Wedneſday after Trinity Sunday, and ends the Friday after the Commencement, and Michaelmaſs Term begins the 10 of October, and ends the 16 of December.
Cambridge lies in 52 Degrees, 20 Minutes Northern Latitude.
Both theſe Univerſities are Two eaſie days Journey from the Capital City of London, and about the like Diſtance from each other.
ANd other Towns Corporate, Is much after the ſame manner with Cities. In ſome there is a Mayor, in others One or Two Bailiffs, who have equal Power with the Mayor and Sheriffs, and during their Offices they are Juſtices of Peace within their Liberties, and have there the ſame Power that other Juſtices of Peace have within their County.
IN every Village is a Government Eccleſiaſtical, and Civil; which if only obſerved, might render the whole Kingdom Happy. And firſt the
THe Parſon or Vicar, who hath Curam Animarum, The care of the Souls of his Pariſhioners, For which he hath the Tithes, Glebe, and Church Offerings. And hath under him,
The Church-wardens and Sides Men, To take care of the Church and Church Aſſemblies.
The Overſeers of the Poor, To take care of the Poor, Sick, Aged, Orphans, and other Objects of Charity. And Laſtly,
The Clerk to wait on him at Divine Service. And for
THe Lord of the Manor or Soil, who from the Crown immediately holds or mediately holds Dominium Soli; Is ſaid to have in him; The Royalty as if he were a little King; and hath a kind of Jurisdiction, and a Court Baron incident to the Manor, and ſometimes a Court Leet, by Grant from the King to which the Inhabitants owe Suit and Service, and432 where ſmaller Matters (as Eſcheats upon Felonies, or other Accidents, common Nuſances, &c. Admitting of Tenants, paſſing of Eſtates, Reliefs, Herriots, Hunting, Hawking, Fiſhing, &c. or other matters Of which you may ſee more at large in the Deſcription of the Juriſdiction of theſe two ſeveral Courts) may be heard and determined. And under the Lord is
The Conſtable, or Headborough, Choſen yearly by the Lord or Steward in the Leet, to keep the Peace in caſe of Quarrels; to ſearch any Houſe for Robbers, Murderers, and others who have broken the Peace; to raiſe Hue and Cry after Robbers; to ſeize Offenders, and keep them in the Stocks or other Priſon, till they can bring them before ſome Juſtice of Peace, to whom the Conſtables are ſubſervient upon all occaſions, either to bring Criminals before them, or to carry them by their Command to the Common Priſon.
Thus having in a Brief and Methodical manner deſcribed the Conſtitution of the Engliſh Government; For the Excellency thereof, we may wel•conclude with the Poet,
CAlled by Heylin, The Sporades not (as he ſaith) that they are ſo named in any Author, but being many, he thought fit to include them under that general Name. The Chief of which are
INſula Euboniae modo Manniae, hath been an ancient Kingdom, as appears by Walſingham, pag. 287. and Coke's Reports, Lib. 7. fol. 21. Calvin's Caſe. And yet we find it not Granted, or Conveyed by the Name of a Kingdom;434 Sed per Nomen Inſulae, &c. cum Patronatu Epiſcopatus. The Patronage of the Biſhoprick of Sodor, being a Viſible Mark of a Kingdom, Est nempe Jus ipſius Inſulae, ut quiſquis illius ſit Dominus, Rex vocetur; cui etiam fas eſt Corona Aurca Coronari, Walſingh. 17 R. 2.
This Iſland was taken from the Britains by the Scots, and from them regained by Edwin King of Northumberland. Afterwards the Norwegians ſeiſed it, from whom Alexander the Third wreſted it; and about the Year 1340. William Montacute, Earl of Salisbury, deſcended from the Norwegian Kings of Man, won it from the Scots, and afterwards ſold it to W. Lord Scroope, who forfeiting the ſame for Treaſon to King H. 4 he granted it to H. Percy Earl of Northumberland, who being 5 H. 4. Attainted of Treaſon, In 7 H. 4. it was by Parliament Enacted, the King ſhould have the Forfeiture of all his Lands and Tenements. And afterwards 7 H. 4. the King granted the Iſle, cum Patronatu Epiſcopatus unto Sir John Stanley, firſt for Life, and afterwards to him and his Heirs. Sir John had Iſſue Sir John Stanley Knight, who had Iſſue Sir Henry Stanly, Lord Chamberlain to King Henry the Sixth, who Created him Lord Stanley. He had Iſſue Thomas, whom435 King Henry the Seventh Created Earl of Derby, to him and the Heirs Male of his Body, &c. Vide Co. 4 Inſt. cap. 69.
The Laws and Juriſdiction of this Iſle differs from other places; For they call their Judges Deemſters, which they chuſe out of themſelves: And they determine all Controverſies without Proceſs, Pleading, Writing, or any Expence at all. If any Caſes be ambiguous, or of greater weight, it is referred to Twelve, which they call Claves Inſulae. They have Coroners (quos Annuos vocant) who ſupply the Office of Sheriff: But altho' the King's Writ runneth not into this Iſland, yet his Commiſſion extendeth thither for Redreſs of Injuſtice, and Wrong. The Biſhop was Inſtituted by Pope Gregory the Fourth, is under the Archbiſhop of York, being annexed to that Archbiſhoprick by King Henry the Eighth, but hath neither Place nor Voice in the Parliament of England. In hac Inſula Judex Eccleſiaſticus citat, definit, & infra Octo dies parent, aut carcere intruduntur.
The People are a Religious, Induſtrious and True People. They have peculiar Laws or Cuſtoms; For if a Man ſteal a Horſe, or an Ox, it is no Felony, becauſe he cannot hide them; but if he436 ſteal a Capon, or Pigg, he ſhall be hanged, &c.
In this little Kingdom are Two Caſtles, Seventeen Fariſhes, Four Market Towns, and many Villages.
It is ſcituate againſt the South part of Cumberland, from which it is diſtant 21 Miles; Is in Length 30 Miles, in Breadth 15, but in ſome part only 8 Miles. The Soil is abundant in Flax, Hemp, Oats, Barley, Wheat; and Biſhop Merrick writing to Cambden, when he was compoſing his Britannia, ſaith,Our Iſland for Cattle, Fiſh, and Corn, hath not only ſufficient for it ſelf; but ſendeth ſtore into other Countries.The chief Towns are Balacurri, and Ruſſin, or Caſtle-Town, the Seat of the Biſhop. On the Hill Sceaful may be ſeen England, Scotland, and Ireland; Here are alſo, bred the Soland Geeſe. The People ſpeak a Mixture of the Norwegian, and Iriſh Tongues.
IS accounted a Shire of Wales, bordereth on Carnarvanſhire, is in Length 20, in Breadth 17 Miles, containing in former times 360 Towns, and Villages, the chief whereof are437 1. Beaumaris towards Wales, 2. Newburg, 3. Aberfraw, on the South-ſide.
This Iſland for its abundant Fertility is called Mam Cymri, i. e. Mother of Wales. It was once the Seat of the Druids, firſt Conquered by Suet onius Paulinus, and united to the Engliſh Crown by the Valour of Edward the Firſt.
IS in Compaſs 20 Miles, and ſufficiently ſtrong, by reaſon of the dangerous Seas. It containeth 12 Towns or Villages, the Chief being St. Hillary and St. Malo, and four Caſtles. The Ground is plentiful in Grain and Sheep, moſt of them having four Horns, of whoſe Wool our Jerſey Stockings are made.
IS diſtant 20 Miles from Jerſey, to whom it is much Inferiour in reſpect of Fertility, and Largneſs; but more commodious by reaſon of the ſafe Harbours. It containeth 10 Pariſhes, the Chief being St. Peters, the Port or Haven, and Market Town.
Theſe Iſlands of Jerſey and Gernſey lye both nigh unto Normandy, and Bretaign, and did in ancient time belong438 to the Dutchy of Normandy. But Henry the Firſt Overthrowing his Elder Brother Robert, united the Dutchy of Normandy, with theſe Iſles, to the Kingdom of England. And altho' King John loſt Normandy, and Henry the Third took Money for it; yet theſe Iſles continued Faithful to England, the poſſeſſion thereof being a good Seiſin of the whole Dutchy.
Concerning the Judicature and Cuſtoms of theſe Iſles, it appeareth by Records in the Tower, Quod Rex Johannes conſtituit 12 Coronatores Juratos ad Placita & Jura ad Coronam ſpectantia, cuſtodienda, Et conceſſit pro ſecuritate Inſularum, Quod Ballivus de caetero per viſum Coronatorum poterat placitare ſine Breve de Nov. Diſſeiſinae facta infra Annum, De Morte Anteceſſorum infra Annum, De Dote ſimiliter infra Annum. And now they have a Governour appointed by the King of England, and Twelve Aſſiſtants ſelected out of every ſeveral Pariſh. And for the moſt part they proceed according to the Cuſtoms of Normandy: Altho' the King's Writ runneth not into theſe Iſles, yet his Commiſſion under the Great Seal doth. But the Commiſſioners muſt judge according to the Laws and Cuſtoms of the Iſles.
THe Iſle of Wight is eſteemed part of Hampſhire, from which it is ſevered by a dangerous Streight of the Sea. It contains 20 Miles in Length, Twelve in Breadth, and is Governed by the Laws of England, as the other Shires have been; the Soyl is anſwerable to the Husbandman's Expectation; The Sheep bear fine Wool, and the Trees ſtore of Fruit. Here are One Foreſt, Two Parks, and 36 Towns and Villages, the Chief being Newport, Yarmouth, and Brading.
The Iſland is ſtrongly ſcituated, being Inacceſſible towards France; but becauſe the North-ſhoar is Level, it is fortified on that ſide with Three Caſtles, viz. Yarmouth, Cows, and Sandhead Caſtle; and in the Midſt of the Iſland is Carisbrooke Caſtle, wherein hath ſometimes been Armor for 50000 Men, and in every Village a Great Piece of Ordnance.
This Iſle was taken from the Britains by Wolphur King of Mercia, and hereof King Henry the Sixth Crowned Henry Beauchamp, Earl of Warwick, King, and he was after named Primus Comes440 totius Angliae; ſed cum illo Novus hic & inſolitus Titulus omnino evanuit.
CAlled by the Engliſh, and Belgians, Scilly Iſlands; by Antonine in his Itinerary, Sigdoles; by Solinus, Silyres; by ſome Greek Writers Heſperides, and Caſterides, are ſcituate againſt the Weſtern Cape of Cornwal, from which they, are diſtant 24 Miles. They are in Number 145, of which 10 only are of Eſtimation, viz. 1. Armath, 2. Agnes, 3. Sampſon, 4. Scilly, 5. Breſar, 6. Ruſo•, 7. St. Helens, 8. St. Martins, 9. Arthur 10. St. Maries, Chief of all the reſt, being 8 Miles in compaſs; ſufficiently Fruitful, and ſtrengthned with a Caſtle, called Stella Maria by Queen Elizabeth.
Theſe Iſlands are ſtored with Graſs, Grain, and Lead; which laſt was once carried hence into Greece. Hither the Roman Emperors Baniſhed Condemned Men to Work in the Mines. Theſe were ſubdued to the Engliſh Crown by Athelſtane.
LEndisfarne, ſcituate near the River Lied, called alſo Holyfarne, or Holy Iſland, on the confines of Northumberland; Hath one Caſtle, one Church, one Pariſh, and a ſafe Haven, defended by a Blockhouſe.
It was in ancient time a Biſhops Seat, after Tranſlated to Dureſme, and is Governed by the Laws of England.
It was called Holy Iſland, for that many Religious Men in times paſt retired thither, being a Solitary place.
There are divers other Iſlands, as Denny, Londay, and Chaldey in the Severn Sea; Thanet, and Sheppey, near Kent; Farne Iſle, near Lindisfarne, and Cockat Iſlands near Northumberland; and many others of ſmall account.
A COMPENDIUM OF THE Laws and Government OF SCOTLAND, WITH THE ISLANDS Thereunto belonging.
Anno Domini 1699,
IS ſo called from Scotti, Scitti, or Scythi a People of Germany, over whoſe Northern Bounds the Name Scythia did once extend. Theſe ſeized on a part of Spain next to Ireland, and Anno 424. on the Weſt part of this Country. It is the reſt of the Iſle of Albion, or Great Britain; in Length from Dungesby-Head to the South parts of Gallway 250 Miles, in Breadth from Aberdeen to the Iſle of Mule 150 Miles; hath no place diſtant from the Sea 62 Miles, and ends like the ſharp point of a Wedge. It was anciently called Calidonia, and ſometimes Albania; now by the French l'Eſcoſſe, by the Italians la Scotia, by the Spaniards la Eſcocia, and by the Germans Schotlandt; and is ſeparated from England by the Rivers Tweed, and Solway, and the Cheviot Hills, in the midſt between which, were
446The Borders ſometimes extended to Edinburgh, and Sterling in Scotland; and at other times were enlarged, and took in Cumberland, Northumberland and Westmorland in England, and were Secured or Defended by three Officers in each Kingdom; called Lord Wardens of the Marſhes. But now by the Marriage and Union of the two Kingdoms, The Officers and Warres, which were the cauſe of them, are extinct.
Scotland was for many Ages Governed by its own Kings, (but with divers conſiderable Alterations) till the year 1602, it was to our great ſatisfaction united to England for ever; and does ſtill remain under it, Governed by a Vice-Roy called Lord Commiſſioner.
Here were formerly two Populous Nations, the Scots before deſcribed, and the Picts, who were indeed very Britains, who Fled into the Northern parts (which are ſtill almoſt Free) when the Romans entred the Scuth parts of Britain: Theſe uſing the ancient Cuſtoms of Painting their Bodies, after the reſt were more Civilized, were by the Romans called Picts: They Swayed here a long while alone till the year 424, when the Scots ſet footing in Britain, with whom they contracted a League447 againſt the Britains; but after, Warring among themſelves, Kenneth King of Scots, vanquiſhed Dunsken King of the Picts, and thereby extinguiſhed both their Kingdom, and Name Anno 839. After James the 6th, being the 36th King, united the Crown of England and Scotland.
Their chief Commodities Cattle, Courſe Cloaths, Frizes, Fiſh, Lead Oar, Iron, Saltpetre, Linnen Cloath, Train Oyl, ſome Hides, and Tallow.
The Country is divided into the High-lands, and Low-lands. The firſt Rude, The other of like Ingenious Diſpoſition, and Language almoſt with the Engliſh; theſe being the Off-ſpring of the Saxons; and the High-landers The true Scots; who ſpeak the Iriſh Tongue, and call both the Low-landers, and Engliſh, Saxons.
The Goſpel was firſt Preached here by Palladius Anno 431. They are now Proteſtants, and thoſe chiefly Presbyterians. Their Language in the South parts a corrupt Engliſh, and on the North, and Weſt parts a Dialect of the Iriſh.
The Diviſion is into two Parts, viz.
1. High-land or North Scotland, ſomewhat the larger of the Two, the Seat of the old Scots 170 Miles long, and448 130 broad, divided into 13 Counties, viz. 1. Cathneſs, Chief Towns-Wick, and Catneſs. 2. Strathnavern, Chief Town Strathy. 3. Sootherland, Chief Town Dornock. 4. Roſſe, Chief Town Tayne. 5. Murray, Chief Town Elgen. 6. Loquabrea, Chief Town Innerlochy. 7. Broad-Alben, Chief Town_____8. Athol, Chief Town Blaire. 9. Buquihan, Chief Town Stanes. 10. Marr, Chief Town Aberdeen. 11. Mernis, Chief Town Bervy. 12. Anguis, Chief Towns Dundee, and Brechin. 13. Perth; Chief Town Perth; the Chief Town of the whole Aberdeen.
2. Lowland, or South Scotland, bordering on England; The Seat of the old Picts 156 Miles long, and 110 broad, divided into 22 Counties, viz. 1. Lorn, chief Town Dunstafag. 2. Cantire, chief Town Kiltan. 3. Argile, chief Town Innerera. 4. Lennox, chief Town Dunbarton. 5. Menteith, chief Town Dunblain. 6. Strathern, chief Town Abernethy. 7. Fife, chief Town St. Andrews. 8. Sterlin, chief Town Sterlin. 9. Lothien, chief Town Edinburgh. 10. March, chief Town Coldingham. 11. Tivedale, chief Town Jedburg. 12. Twedeſdale, chief Town Pebles. 13. Cledeſdale, chief Town Glaſcow. 14. Cunningham, chief Town449 Irwing. 15. Kile, chief Town Aire. 16. Carrick, chief Town Bargenny. 17. Galloway, chief Town Kircowbrig. 18. Niddeſdale, chief Town Dumfrees. 19. Annandale, chief Town Annand. 20. Eskedale. 21. Euſdale, and 22. Iſle of Arran.
Edinburgh is the Chief of the Kingdom, and Seat of the former Kings.
Theſe Provinces are divided into Sheriff-doms, which are Hereditary, and into 13 Dioceſſes for Eccleſiaſtical Government by Malcolm 3d Anno 1072. And into the two Arch-biſhopricks of St. Andrew and Glaſco, Ann. 1478. St. Andrew having 8 Biſhops under him, and Glaſco 3. The Archbiſhop of York, before that time being Metropolitan of Scotland: And Palladius Anno 411, was ſent by Celeſtinus Biſhop of Rome, to be their firſt Biſhop.
The chief Rivers are two, viz. 1. Spey, and 2 Tey.
The chief Hills are thoſe of Cheviot, and Albany.
The chief Lakes, 1 Lomond, 2 Neſſa, and 3 Tay.
450The miraculous things. 1. The Lake of Mirton, part of whoſe Waters Congeal only. 2. The Lake of Lennox, 24 Miles round, in which are 30 Iſlands, one of them driven with every Tempeſt, and 3. the Deaf-ſtone 12 foot high, and 33 Cubits thick.
The Archbiſhopricks two, Biſhopricks 12, and Univerſities 4.
The Arms Sol, a Lyon Rampant Mars, with a double Treſſure Counterflowry, added upon making the perpetual League with France.
Barbarons were the Feides here, and the Cuſtom changed into Mercheta Mulieris, by Malcolm Conmer, at Requeſt of his Wife, Siſter to Edgar Atheling.
Scotland was an Heptarchy, but now a Monarchy; King James the firſt, endeavoured in Parliament to make a Union of both Kingdoms: But the Judges Reſolved, That Anglia had Laws, and Scotia had Laws: But the new Erected Kingdom of Britannia ſhould have no Laws; and therefore, till there was a Union of the Laws, there could be no Union of the Kingdoms.
The mighty and ancient Kingdoms of England, and Scotland, were anciently but one; and as their Religion,451 and Language was one; ſo there was one kind of Government, and one Law, which Ruled both, with many Unanimous Agreements between them, which evidently appeareth, by many Proofs.
First, That the Laws of Scotland are divided as the Laws of England, into the Common Laws, Acts of Parliament and Cuſtoms; their Common Laws being principally contained in two Books, One called Regiam Majestatem, becauſe it beginneth (as doth Juſtinian's Inſtitutes) with thoſe words, And agreeth in ſubſtance with our Glanvil, and moſt commonly de Verbo in Verbum, and many times our Glanvil is cited therein. The ſecond Book is called Quoniam Attachiamenta, it beginning with thoſe Words.
Secondly, The Deſcent of the Crown of Scotland, and of Lands to Subjects, is the ſame with England.
Thirdly, They have the like High Court of Parliament, conſiſting of Lords Spirituals, Lords Temporal and Commons. But of latter times, the Lords Spiritual chuſe eight Temporal Lords, and the Lords Temporal eight Spiritual Lords. Theſe Sixteen make choice, of eight for Counties, and eight of Cities, and Burroughs, in all452 32; But whatſoever is agreed upon by them, the King or his High Commiſſioner doth allow or diſallow, by moving of the Scepter, &c.
Fourthly, They have the ſame Degrees of Nobility, as, Dukes, Marquiſſes, Earls, Viſcounts and Barons.
Fifthly, The ſame great Officers as Chancellor, Treaſurer, Lord Privy Seal, Secretary, &c.
Sixthly, The ſame Miniſters of Juſtice, as Sheriffs, Coroners, &c.
Seventhly, The ſame Laws for the moſt part, appropriated unto England, viz. Tenant by the Curteſy, becauſe they had Laws as England had.
Eighthly, The like Writs as De Recto, Aſſiſa de Novel Diſſeiſin, Mort de Anceſtor, de Gard, de Ideot 'inquirend', Replegiar ', Attachm', &c.
Ninthly, They agree with Magna Gharta, concerning Ward-ſhips.
Tenthly, With Charta de Foreſta, for it is lawful for Biſhops, Earls and Barons, coming or returning through the Kings Foreſts, at the Kings Command to kill own or two Beaſts, in the ſight of the Foreſter; Or otherwiſe in his Abſence to blow his Horn, that he appear not to take it Thieviſhly.
453Eleventhly, The Lord of whom the Land is holden per Antiquius Feoffamentum ſhall have the Wardſhip of the Body.
Twelfthly, The Sheriffs ſhould cauſe the Acts of Parliament, to be proclaimed as heretofore in England.
Thirteenthly, The Sheriffs there have Inheritance in their Office, as ſometimes in England, and ſtill in Cumberland they have.
Fourteenthly, The ſame Vocables of Art, are uſed in both Kingdoms.
But by reaſon of their Acts of Parliment, which in many Points have altered, diminiſhed and abrogated, many of the old, and made new Laws, and other Proceedings, the diſtinct Kingdoms, as they now ſtand, have many different Laws, Coke's 4 Inst. 345, 346.
By the Statute of 1 Jac. 1.2. An Authority is given to certain Commiſſioners of both Houſes of Parliament, to Treat with certain Commiſſioners of Scotland, concerning the Settlement of an Union and Peace between the Kingdoms of England and Scotland.
By the Statute of 4 Jac. 1. Laws of Hoſtility, and the dependences thereof between the two Nations454 of Scotland, and England are Repealed.
Felonies Committed by Engliſh Men in Scotland, ſhall be Tried in Cumberland, Weſtmorland or Northumberland, before Commiſſioners and Jurors of England; for which ſee more in the Statute.
By the Statute of 7 Jac. 1.1. If an Engliſh Man ſhall commit Felony in Scotland, and then fly into England, the Juſtices of Aſſize or one of them, the Juſtices of Gaol Delivery in their Gaol Delivery, or four of them, or the Juſtices of Peace in Seſſions, or four of them, may ſend the Offender into Scotland, to be Tried.
By the Statute of 19 Car. 2. cap. 13. Twelve perſons to be nominated by the King, ſhall be Commiſſioners for this Kingdom; who, or five, or more of them, after the 10th of January 1667, and before the 25th of March 1688; and ſo from time to time may meet at ſuch place in England as the King ſhall appoint, with Commiſſioners for the Realm of Scotland; and Treat and Determine concerning the Liberty of Trade between the two Kingdoms, by ſuſpending Impoſitions, &c. charged ſince the 25 of March, in 12 year of the Kings Reign; upon Commodities455 of the Growth or Manufacture of either Kingdom, or of any of the Engliſh Plantations, or other Commodities Exported out of England into Scotland; their Determinations to be reduced into Writing, under the Hands and Seals of the Commiſſioners, and being Ratified by the King, ſhall be in force for a year, from the Date of ſuch Ratification, or to the end of the next Seſſion of Parliament.
By the Statute of 22 Car. 2. cap. 9. Perſons to be nominated by the King under the Great Seal, or ſo many of them as ſhall be appointed to be of the Quorum, ſhall have power to Treat with Commiſſioners, to be Authoriſed by the Parliament of Scotland, concerning an Union of the Realms, and ſuch other Matters as they ſhall think fit, for the Kings Honour, and Good of both Kingdoms. Their Proceedings to be reduced into Writings or Inſtruments Tripartite, one part whereof to be preſented to the King, another to the Parliament of England, and a third to that of Scotland: Provided that nothing to be agreed on by them, ſhall be of force till confirmed by Act of the Parliament of England.
456By the Statute of 4 Jac. 1.1. He that is once Tried in Scotland, ſhall not be called in Queſtion again for the ſame Offence.
By the Statute of 2 Ed. 4.8. Merchandize carried into, or brought out of Scotland, or the Iſles thereof, ſhall be firſt brought to Berwick, in pain to forfeit the ſame.
As the Law hath wrought four Unions. 1ſt, The Union of both Kingdoms, under one Natural Liege Sovereign King, being ſo acknowledged by the Act of Recognition. 2ly, The Union of Liegeance and Obedience of the Subject of both Kingdoms, due by the Law of Nature to their Sovereign. 3ly, The Union of Protection of both Kingdoms, equally belonging to the Subjects of either of them. 4ly, The Union of the three Lyons of England, with that one of Scotland United and Quartered in one Eſcutcheon.
So the Law doth make four Seperations. 1st, England and Scotland remain ſeveral and diſtinct Kingdoms. 2ly, They are Governed by ſeveral Judicial, or Municipal Laws. 3ly, They have ſeveral diſtinct and ſeperate Parliaments. 4ly, Each Kingdom hath ſeveral Nobilities; For albeit a Poſtnatus in Scotland, or any of his Poſterity be457 the Heir of a Nobleman of Scotland, and by his Birth Legitimated in England, yet he is none of the Peers or Nobility of England, for his Natural Ligeance and Obedience due by the Law of Nature, maketh him a Subject, and no Alien within England: But that Subjection maketh him not Noble within England, for that Nobility had its Original by the Kings Creation and not of Nature. More of which matter you may Read at large hereafter in Ireland: And that the higheſt and loweſt Dignities, as a King, and that of a Knight are nevertheleſs univerſal, Coke's 7 Rep. 15. Calvin's Caſe.
In ancient time part of Scotland (beſides Berwick) was within the Power, and Ligeance of the King of England; yet was Governed by the Laws of Scotland.
The Caſe in 42 Ed. 3.2. Ruleth it, That ſo many as were Born in that part of Scotland, that was under the Ligeance of the King, were no Aliens, but inheritable to Lands in England; yet was that part of Scotland in another Kingdom governed by ſeveral Laws: And certainly, if they were Natural Subjects in that Caſe, when the King had but part of Scotland,458 when the King hath all Scotland, they ſhall be Natural Subjects, and no Aliens.
Barwick is no part of England, nor Governed by the Laws of England; yet they that have been Born there, under the Obedience of one King, are Natural Born Subjects and no Aliens.
There were ſometimes in England, whiles the Heptarchy laſted, ſeven ſeveral Crowned Kings, of ſeveral and diſtinct Kingdoms; but in the end the Weſt Saxons got the Monarchy, and all the other Kings melted (as it were) their Crowns, to make one Imperial Diadem for the King of the Weſt Saxons over all: Now when the whole, was made the actual and real Ligeance and Obedience of one King, they were all Natural born Subjects, and capable of, and Inheritable unto any Lands in any of the ſaid Kingdoms. Of all which matters and things laſt above mentioned, you may read at large in Coke's 7 Report, Calvin's Caſe.
By the Statute of 4 Jac. 1. For Repeal of Hoſtile Laws, It is Enacted, That no Engliſhman ſhall be ſent out of England into Scotland, for any Offence done in Scotland, until the459 Realms be made one in Laws and Government.
There was a Proclamation the 20 of Octob. 20 Jac. 1. concerning the Kings Stile of Great Britain, wherein all Judicial, and Legal Proceedings are excepted, Cokes 4 Inſt. 345.
ARE the Orcades or Iſles of Orkeny in number 32, Situate againſt the North Cape of Scotland: The chief being Pomonia, whoſe prime Town is Kirkwal, honoured with a Biſhops See, and ſtrengthened with two Caſtles; It is ſtored with Tinn and Lead, and called by the Inhabitants Mainland. The 2d Hotlands or Oceti, the Inhabitants Bibaciſſimi ſunt, tamen non inebriantur.
Theſe Iſles in Solinus time were not Inhabited, being over-grown with Ruſhes: Now are they Populous, and Fertile, were firſt diſcovered by Julius Agricola, and firſt poſſeſſed by Normans, or Norwegians who ſurrendred them to Alexander, King of Scotland 1266. They ſpeak the Gothiſh Language.
Schetland lies two days Sailing North of Orcades, and is ſuppoſed to be the Thule of the Ancients.
460The Hebrides, becauſe Scituate Weſt of Scotland, in number 44. The chief Ila 24 Miles long, and 16 broad, Plentiful in Wheat, Cattle and Herds of Red Deer: The Iſle of Sky 40 Miles long; Iona famous for Sepulture of the Kings of Scotland: Mula 25 Miles bigger than the other. The People both in Language and Behaviour reſemble the Wild Iriſh, and are called Redſhanks.
A COMPENDIUM OF THE Laws and Government OF IRELAND, WITH THE ISLANDS Thereunto belonging.
Anno Domini 1699,
FROM Erinland, ſignifying in their Language a Weſtern Land, lies on the Weſt of England and Wales, in length from the North parts of Antrim, to the South parts of Cork 285, in breadth from the Eaſt parts of Down, to the Weſt parts of Mayo, 160 Miles long; Anciently called Juverna, Hibernia, Overnia, Jernia, Scotia minor, Bernia and Vernia, now by the Natives Eryn; by the Welſh, Yverden; by the Germans, Irlandt; by the Italians, Irlanda; and by the