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the council, but from the judges themselves, as an cannot control law; which doth not at all infringe extenuation, or at least an obscuring of the proofs of the rule of " optima legum interpres consuetudo ;" the usage and practice, in that we show forth no for usage may expound law, though it cannot overinstructions from 17 H. VIII. to 1 Mariæ.
rule law. To these six points I will give answer, and, as I
But of the other side I could show you many cases, conceive, with satisfaction.
where statutes have been expounded directly against For Bristol, I say it teacheth them the right way, their express letter to uphold precedents and usage, if they can follow it; for Bristol was not exempt by as 2 and 3 Phil. et Mar. upon the statute of Westany opinion of law, but was left out of the instruc-minster, that ordained that the judges coram quibus tions upon supplication made to the queen. formatum erit appellum shall inquire of the damages,
For Cheshire, we have answered it before, that and yet the law ruled that it shall be inquired before the reason was, because it was not probable that the the judges of Nisi prius. And the great reverence statute meant to make that shire subject to the juris- given to precedents appeareth in 39 H. VI. 3 E. IV. diction of that council, considering it was not subject and a number of other books; and the difference is to the high courts at Westminster, in regard it was exceedingly well taken in Slade's case, Coke's Rea county Palatine. And whereas they said, that so ports, 4, that is, where the usage runs but amongst was Flintshire too, it matcheth not, because Flint-clerks, and where it is in the eye and notice of the shire is named in the statute for one of the twelve judge: for there it shall be presumed, saith the book, shires of Wales.
that if the law were otherwise than the usage hath We showed you likewise effectual differences be- gone, that either the council or the parties would tween Cheshire and these other shires : for that have excepted to it, or the judges ex officio would Cheshire hath a chancery in itself, and over Cheshire have discerned of it, and found it; and we have the princes claim jurisdiction, as earl of Chester ; ready for you a calendar of judges more than sit at to all which you reply nothing.
this table, that have exercised jurisdiction over the Therefore I will add this only, that Cheshire went shires in that county. out secundo flumine, with the good-will of the state ; As for exception, touching the want of certain inand this is sought to be evicted adverso flumine, structions, I could wish we had them; but the want cross the state ; and as they have opinion of four of them, in my understanding, obscureth the case judges for the excluding of Cheshire, so we have the little. For let me observe unto you, that we have opinions of two great learned men, Gerrard and three forms of instructions concerning these shires Bromley, for the including of Worcester; whose extant; the first names them not expressly, but by opinions, considering it was but matter of opinion, reference it doth, namely, that they shall hear and and came not judicially in question, are not inferior determine, &c. within any the places or counties to any two of the other ; but we say that there is no within any of their commissions; and we have one opposition or repugnancy between them, but both of the commissions, wherein they were named; so may stand.
as upon the matter they are named. And of this For Cholmley's instructions, the words may well form are the ancient instructions before the statute stand, “ that those shires are annexed by commis- 17 H. VIII. when the princess Mary went down. sion;" for the king's commission or instructions, for The second form of instructions go farther, for those words are commonly confounded, must co they have the towns, and exempted places within operate with the statute, or else they cannot be an the counties named, with tanquam as well within nexed. But for that conceit that they should come the city of Glocester, the liberties of the duchy of in but in 11, when Cheshire went out, no man that Lancaster, &c. as within any of the counties of any is in his wits can be of that opinion, if he mark it : of their commissions; which clearly admits the for we see that the town of Glocester, &c. is named counties to be in before. And of this form are the in the instructions of 1 Mar. and no man, I am sure, instructions 1 Mariæ, and so long until 11 Eliz. will think that Glocester town should be in, and And the third form, which hath been continued Glocestershire out.
ever since, hath the shires comprehended by name. For the conceit, that they had but jurisdictionem Now it is not to be thought, but the instructions precariam, the precedents show plainly the contra which are wanting, are according to one of these ry; for they had coercion, and they did fine and three forms which are extant.
Take even your imprison, which the judges do not upon petitions ; choice, for any of them will serve to prove that the and besides, they must remember that many of our practice there was ever authorized by the instructions precedents, which we did show forth, were not of here. And so upon the whole matter, I pray report suits originally commenced there, but of suits re to be made to his Majesty, that the president and manded from hence out of the king's courts as to the council hath jurisdiction, according to his intheir proper jurisdiction.
structions, over the four shires, by the true construcFor Sir John Mullen's case, the rule is plain and tion of the statute of 34 H. VIII. sound, that where the law appears contrary, usage
A DRAUGHT OF AN ACT
AN USURIOUS SHIFT OF GAIN, IN DELIVERING COMMODITIES INSTEAD OF MONEY,
WHEREAS it is an usual practice, to the undoing tailer, chapman, or known broker of the same and overthrowing many young gentlemen and others, commodities, and knowing that it is bought to be that when men are in necessity, and desire to borrow sold again, to help and furnish any person, that tradmoney, they are answered, that money cannot be had, eth not in the same commodity, with money, he shall but that they may have commodities sold unto them be without all remedy by law, or custom, or decree, upon credit, whereof they may make money as they or otherwise, to recover or demand any satisfaction can: in which course it ever comes to pass, not only for the said wares or commodities, what assurance that such commodities are bought at extreme high soever he shall have by bond, surety, pawn, or prorates, and sold again far under foot to a double loss; mise of the party, or any other in his behalf. And that but also that the party which is to borrow is wrapt all bonds and assurances whatsoever, made for that in bonds and counter-bonds ; so that upon a little purpose, directly or indirectly, shall be utterly void. money which he receiveth, he is subject to penalties And be it further enacted, by the authority aforeand suits of great value.
said, that every person, which shall after the time
aforesaid be used or employed as a broker, mean, or Be it therefore enacted, by the authority of this procurer, for the taking up of such commodities, present parliament, that if any man, after forty days shall forfeit for every such offence the sum of one from the end of this present session of parliament to hundred pounds, the same to be, &c. and shall be be accounted, shall sell in gross sale any quantity of farther punished by six months imprisonment, withwares or commodities unto such a one as is no re-l out bail or mainprise, and by the pillory.
THE UNION OF THE LAWS
OF ENGLAND AND SCOTLAND.
Your Majesty's desire of proceeding towards the | vatum, the one being the sinews of property, and union of this whole island of Great Britain under the other of government; for that which concerneth one law, is, as far as I am capable to make any opi- private interest of meum and tuum, in my simple nion of so great a cause, very agreeable to policy opinion, it is not at this time to be meddled with ; and justice. To policy, because it is one of the best men love to hold their own as they have held, and assurances, as human events can be assured, that the difference of this law carrieth no mark of separathere will be never any relapse in any future ages to tion; for we see in any one kingdom, which is most a separation. To justice, because “dulcis tractus pari at unity in itself, there is diversity of customs for the jugo:" it is reasonable that communication of privi- guiding of property and private rights; "in veste valege draw on communication of discipline and rule. rietas sit, scissura non sit.” All the labour is to be This work being of greatness and difficulty, needeth spent in the other part; though perhaps not in all not to embrace any greater compass of designment, the other part; for, it may be, your Majesty in your than is necessary to your Majesty's main end and high wisdom, will discern that even in that part there intention. I consider therefore that it is a true and will not be requisite a conformity in all points. And received division of law into jus publicum and pri- although such conformity were to be wished, yet
perchance it will be scarcely possible in many points Where a man doth compass or imagine the death to pass them for the present by assent of parlia of the king's eldest son and heir, if it appear by any ment. But because we that serve your Majesty in overt act, it is treason. the service of our skill and profession, cannot judge Where a man doth violate the king's wife, it is what your Majesty, upon reason of state, will leave treason. and take; therefore it is fit for us to give, as near as Where a man doth violate the king's eldest daughwe can, a general information : wherein I, for my ter unmarried, it is treason. part, think good to hold myself to one of the paral Where a man doth violate the wife of the king's lels, I mean that of the English laws. For although eldest son and heir, it is treason. I have read, and read with delight, the Scottish Where a man doth levy war against the king and statutes, and some other collection of their laws; his realm, it is treason. with delight, I say, partly to see their brevity and Where a man is adherent to the king's enemies, propriety of speech, and partly to see them come so giving them aid and comfort, it is treason. near to our laws; yet I am unwilling to put my Where a man counterfeiteth the king's great seal, sickle in another's harvest, but to leave it to the it is treason. lawyers of the Scottish nation; the rather, because Where a man counterfeiteth the king's privy seal, I imagine with myself that if a Scottish lawyer it is treason. should undertake, by reading of the English statutes, Where a man counterfeiteth the king's priry or other our books of law, to set down positively in signet, it is treason. articles what the law of England were, he might Where a man doth counterfeit the king's sign oftentimes err: and the like errors, I make account, manual, it is treason. I might incur in theirs. And therefore, as I take Where a man counterfeits the king's money, it is it, the right way is, that the lawyers of either nation treason. do set down in brief articles what the law is of their Where a nian bringeth into the realm false money, nation, and then after, a book of two columns, either counterfeited to the likeness of the coin of England, having the two laws placed respectively, to be with intent to merchandise or make payment thereoffered to your Majesty, that your Majesty may by with, and knowing it to be false, it is treason. a ready view see the diversities, and so judge of the Where a man counterfeiteth any foreign coin curreduction, or leave it as it is.
rent in payment within this realm, it is treason. Jus publicum I will divide, as I hold it fittest for Where a man doth bring in foreign money, being the present purpose, into four parts. The first con current within the realm, the same being false and cerning criminal causes, which with us are truly counterfeit, with intent to utter it, and knowing the accounted publici juris, because both the prejudice same to be false, it is treason. and the prosecution principally pertain to the crown Where a man doth clip, wash, round, or file ang and public estate. The second, concerning the of the king's money, or any foreign coin current br causes of the church. The third, concerning magis. proclamation, for gain's sake, it is treason. trates, offices, and courts: wherein falleth the con Where a man doth any ways impair, diminish, sideration of your Majesty's regal prerogative, falsify, scale, or lighten the king's money, or any whereof the rest are but streams. And the fourth, foreign moneys current by proclamation, it is treason. concerning certain special politic laws, usages, and Where a man killeth the chancellor, being in his constitutions, that do import the public peace, place and doing his office, it is treason. strength, and wealth of the kingdom. In which Where a man killeth the treasurer, being in his part I do comprehend not only constant ordinances place and doing his office, it is treason. of law, but likewise forms of administration of law, Where a man killeth the king's justice in epre, such as
are the commissions of the peace, the being in his place and doing his office, it is treason visitations of the provinces by the judges of the cir Where a man killeth the king's justice of assise, cuits, and the like. For these in my opinion, for the being in his place and doing his office, it is treason. purpose now in han deserve a special observation, Where a man killeth the king's justice of oper because they being matters of that temporary nature, and terminer, being in his place and doing his office, as they may be altered, as I suppose, in either it is treason. kingdom, without parliament, as to your Majesty's Where a man doth persuade or withdraw any of wisdom may seem best; it may be, the most profit- the king's subjects from his obedience, or from the able and ready part of this labour will consist in the religion by his Majesty established, with intent to introducing of some uniformity in them.
withdraw him from the king's obedience, it is treason. To begin therefore with capital crimes, and first Where a man is absolved, reconciled, or withdrawn that of treason.
from his obedience to the king, or promiseth his
obedience to any foreign power, it is treason. CASES OF TREASON.
Where any Jesuit, or other priest ordained since
the first year of the reign of queen Elizabeth, shall Where a man doth compass or imagine the death come into, or remain in any part of this realm, it is of the king, if it appear by any overt act, it is treason. treason.
Where a man doth compass or imagine the death Where any person being brought up in a college of the king's wife, if it appear by any overt act, it is of Jesuits, or seminary, shall not return within sis treason.
months after proclamation made, and within two
days after his return submit himself to take the oath In treason, no new case not expressed in the of supremacy, if otherwise he do return, or be with statute of 25 Ed. III. nor made treason by any in the realm, it is treason.
special statute since, ought to be judged treason, Where a man doth affirm or maintain any autho- without consulting with the parliament. rity of jurisdiction spiritual, or doth put in use or In treason, there can be no prosecution but at execute any thing for the advancement or setting the king's suit, and the king's pardon dischargeth. forth thereof, such offence, the third time committed, In treason, the king cannot grant over to any is treason.
subject power and authority to pardon it. Where a man refuseth to take the oath of supre In treason, a trial of a peer of the kingdom is to macy, being tendered by the bishop of the diocess, be by special commission before the lord high if he be an ecclesiastical person; or by commission steward, and those that pass upon him to be none out of the chancery, if he be a temporal person ; but peers ; and the proceeding is with great solemsuch offence, the second time, is treason.
nity, the lord steward sitting under a cloth of estate Where a man committed for treason doth volun- with a white rod of justice in his hand: and the tarily break prison, it is treason.
peers may confer together, but are not any ways Where a jailor doth voluntarily permit a man shut up: and are demanded by the lord steward committed for treason to escape, it is treason. their voices one by one, and the plurality of voices
Where a man procureth or consenteth to a treason, carrieth it. In treason, it hath been an ancient use it is treason.
and favour from the kings of this realm to pardon Where a man relieveth or comforteth a traitor, the execution of hanging, drawing, and quartering ; knowing it, it is treason.
and to make warrant for their beheading.
The proceeding in case of treason with a common ?'he punishment, trial, and proceedings in cases of subject is in the king's bench, or by commission of treason.
oyer and terminer. In treason, the corporal punishment is by drawing on a hurdle from the place of the prison to the place
MISPRISION OF TREASON. of execution, and by hanging and being cut down alive, bowelling, and quartering: and in women by
Cases of misprision of treason. burning
Where a man concealeth high treason only, withIn treason, there ensueth a corruption of blood in out any comforting or abetting, it is misprision of the line ascending and descending.
treason. In treason, lands and goods are forfeited, and in Where a man counterfeiteth any foreign coin of heritances, as well entailed as fee-simple, and the gold or silver not current in the realm, it is mis. profits of estates for life.
prision of treason. In treason, the escheats go to the king, and not to the lord of the fee.
The punishment, trial, and proceeding in cases of In treason, the lands forfeited shall be in the
misprision of treason. king's actual possession without office.
The punishment of misprision of treason is by In treason, there be no accessaries, but all are perpetual imprisonment, loss of the issues of their principals.
lands during life, and loss of goods and chattels. In treason, no benefit of clergy, or sanctuary, or The proceeding and trial is, as in cases of treason. peremptory challenge.
In misprision of treason bail is not admitted. In treason, if the party stand mute, yet nevertheless judgment and attainder shall proceed all one as
PETIT TREASON. upon verdict. In treason, bail is not permitted.
Cases of petit treason. In treason, no counsel is to be allowed to the Where the servant killeth the master, it is petit party.
treason. In treason, no witness shall be received upon Where the wife killeth her husband, it is petit oath for the party's justification.
treason. In treason, if the fact be committed beyond the Where a spiritual man killeth his prelate, to seas, yet it may be tried in any county where the whom he is subordinate, and oweth faith and obeking will award his commission.
dience, it is petit treason. In treason, if the party be non sane memorie, Where the son killeth the father or mother, it yet if he had formerly confessed it before the king's hath been questioned whether it be petit treason, council, and that it be certified that he was of good and the late experience and opinion seemeth to memory at the time of his examination and con- weigh to the contrary, though against law and fession, the court may proceed to judgment without reason in my judgment. calling or arraigning the party. In treason, the death of the party before convic
The punishment, trial, and proceeding in cases of tion dischargeth all proceedings and forfeitures.
petit treason. In treason, if the party be once acquitted, he In petit treason, the corporal punishment is by shall not be brought in question again for the same drawing on a hurdle, and hanging, and in a woman fact,
In petit treason, the forfeiture is the same with | do assemble accordingly, and do not depart after the case of felony.
proclamation, it is felony. In petit treason, all accessaries are but in case of Where a man being the king's sworn servant, felony.
conspireth to murder any lord of the realm or any
of the privy council, it is felony. FELONY.
Where a soldier hath taken any parcel of the Cases of felony.
king's wages, and departed without licence, it is
felony. Where a man committeth murder, that is, homi Where a man receiveth a seminary priest, knowcide of prepensed malice, it is felony.
ing him to be such a priest, it is felony. Where a man committeth manslaughter, that is, Where a recusant, which is a seducer, and perhomicide of a sudden heat, and not of malice pre- suader, and inciter of the king's subjects against the pensed, it is felony.
king's authority in ecclesiastical causes, or a perWhere a man committeth burglary, that is, break- suader of conventicles, &c. shall refuse to abjure the ing of a house with an intent to commit felony, realm, it is felony. it is felony.
Where vagabonds be found in the realm, calling Where a man rideth armed, with a felonious in themselves Egyptians, it is felony. tent, it is felony.
Where a purveyor taketh without warrant, or Where a man doth maliciously and feloniously otherwise doth offend against certain special laws, burn a house, it is felony.
it is felony. Where a man doth maliciously and feloniously Where a man hunteth in any forest, park, or warburn corn upon the ground, or in stacks, it is felony. ren, by night or by day, with vizards or other dis
Where a man doth maliciously cut out another's guisements, and is examined thereof and concealeth tongue, or put out his eyes, it is felony.
his fact, it is felony. Where a man robbeth or stealeth, that is, taketh Where a man stealeth certain kinds of hawks, it away another man's goods, above the value of is felony. twelve-pence, out of his possession, with an intent Where a man committeth forgery the second time, to conceal it, it is felony.
having been once before convicted, it is felony. Where a man embezzleth or withdraweth any of Where a man transporteth rams or other sheep the king's records at Westminster, whereby any out of the king's dominions, the second time, it is judgment is reversed, it is felony, .
felony. Where a man that hath custody of the king's ar Where a man being imprisoned for felony, breaks mour, munition, or other habiliments of war, doth prison, it is felony. maliciously convey away the same, to the value of
Where a man procureth or consenteth to a felony twenty shillings, it is felony.
to be committed, it is felony, as to make him acWhere a servant hath goods of his master's de- cessary before the fact. livered unto him and goeth away with them, it is Where a man receiveth or relieveth a felon, knowfelony.
ing thereof, it is felony, as to make him accessary Where a man conjures, or invocates wicked spirits, after the fact. it is felony.
Where a woman, by the constraint of her husband, Where a man doth use or practise any manner of in his presence joineth with him in committing of witchcraft, whereby any person shall be killed, felony, it is not felony, neither as principal, nor as wasted, or lamed in his body, it is felony.
accessary. Where a man practiseth any witchcraft, to dis
The punishment, trial, and proceeding in cases of cover treasure hid, or to discover stolen goods, or to provoke unlawful love, or to impair or hurt any
felony. man's cattle or goods, the second time, having been In felony, the corporal punishment is by hanging, once before convicted of like offence, it is felony. and it is doubtful whether the king may turn it into
Where a man useth the craft of multiplication of beheading in the case of a peer or other person of gold or silver, it is felony.
dignity, because in treason the striking off the head Where a man committeth rape, it is felony. is part of the judgment, and so the king pardoneth Where a man taketh away a woman against her the rest : but in felony it is no part of the judgment, will, not claiming her as his ward or bondwoman, and the king cannot alter the execution of law; it is felony.
yet precedents have been both ways. Where any person marrieth again, her or his In felony, there followeth corruption of blood, exformer husband or wife being alive, it is felony. cept it be in cases made felony by special statutes, with
Where a man committeth buggery with a man a proviso that there shall be no corruption of blood. or beast, it is felony.
In felony, lands in fee-simple and goods are forWhere any persons, above the number of twelve, feited, but not lands entailed, and the profits of shall assemble themselves with intent to put down estates for life are likewise forfeited: And by some enclosures, or bring down prices of victuals, &c. and customs lands in fee-simple are not forfeited ; do not depart after proclamation, it is felony. Where a man shall use any words to encourage
The father to the bough, son to the plough;” or draw any people together, ut supra, and they as in gavelkind in Kent, and other places.