The reports and arguments of that learned judge Sir John Vaughan Kt. late chief justice of His Majesties court of Common Pleas being all of them special cases and many wherein he pronounced the resolution of the whole court of common pleas ; at the time he was chief justice there / published by his son Edward Vaughan, Esq.

REPORTS OF S ir John Vaughan LORD CHIEF JUSTICE Of the COURT of COMMON-PLEAS .

Hil. xvii . & xviii . Caroli 2. Reg. C.B. Ro. 1032.

John Tufton Knight and Baronet . Plaint . vers . Rich. Temple Knight of the Bath and Bar. Chamberlain Hammersley Cl. John Bish. of Lich. and Cov. Defen . In a Quare Impedit for hindring him to present a fit Person to the Vicaridge of the Church of Burton-Basset in the County of Warwick , being void , and belonging to his Gift .

THE Plaintiff sets forth , That whereas Thomas Temple Kt. and Bar. was seised of two third Parts of the Mannor of Burton Basset , to which one third Part of the Advowson of the Vicaridge aforesaid ; that is , to present a fit Person to the same Vicaridge the first time , when the same then after should happen next to be void : And after the same first Presentation , then every third turn of the same Vicaridge being void for ever appertains , and did appertain , in his Demesne as of Fee .

And one Edward Wootton Kt. Lord Wootton , was seised of one other third part of the Mannor aforesaid , and of one third part of the Rectory Impropriate of Burton Basset : To which third parts one other third part of the Advowson of the Vicaridge aforesaid : that is , to present a fit Person to the same Vicaridge the second turn , when the same Vicaridge then after should happen next to be void : And after the same second Presentation , then every third turn of the same Vicaridge being void for ever doth appertain , and then did appertain , in his Demesn as of Fee .

That the said Thomas Temple was likewise seised of another third part of the Advowson of the Vicaridge aforesaid , that is , to present a fit Person to the same the third turn , when the same Vicaridge then after should happen next to be void : And after such third Presentation , then every third turn of the same Vicaridge being void for ever . Ut de uno grosso per se , ut de feodo & jure .

That the said Thomas Temple being seised of the two third parts of the said Mannor : To which , &c. the said Vicaridge became void by the resignation of Thomas Freeman then last Incumbent .

That thereupon the said Thomas Temple presented in his turn to the said Vicaridge one John Reignalds his Clerk , who was admitted , instituted and inducted thereto , in the time of the late King James .

That the said Edw. Wootton , being seised of the said other third part of the said Mannor , and third part of the Rectory aforesaid , to which , &c. dyed thereof so seised at Burton Basset aforesaid .

That after his death the said third Parts , to which , &c. descended to one Thomas Lord Wootton his Son and Heir , whereby the said Thomas Lord Wootton became thereof seised in his Demesne , as of Fee

That being so seised , he levyed a Fine of the said third Parts , to which , &c. in the Common-Pleas 4. Car. 1. in octab . S. Martini to Nicholas Pay Esq ; and Reignald Pay Gent. Com-Plainants , the said Lord Wootton , Mary his Wife , and one Henry Wootton Knight deforc .

That the said Fine was to the use of the said Lord Wootton and Mary his Wife , during their natural lives , and the longer liver of them . Then to the use of the first Son of the body of the Lord Wootton , and the Heirs Males of the body of such first Son begotten , and so to the sixth Son successively and the Heirs Males of their bodies , and so to every other the Sons of the said Lord Wootton successively .

Then for default of such issue , to the use of Margaret Wootton third daughter of the said Lord Wootton , and Mary his Wife , and of such Husband with whom the said Margaret should happen to marry for term of such husbands natural life ( If the said Margaret should so appoint the same per aliquod scriptum sub manu & sigillis suis ) : And of the Heirs Males of her body begotten for part of her marriage portion , then to the use of the Heirs of her body begotten : And for default of such , to the use of the right Heirs of the said Thomas Lord Wootton for ever .

That by the said Fine and Statute of Uses , the said Lord Wootton and Mary his wife were seised of the said two third parts to which , &c. for their Lives with the Remainders over as aforesaid .

That being so seised the said Vicaridge became void by the death of the said John Reignalds : And the said Lord Wootton presented to the same in his turn one John Cragg , who was accordingly instituted and inducted tempore Car. 1.

That the said Tho. Temple , being seised of the other third part of the said Advowson in gross levyed a Fine among other things of the said third part of the said Advowson to Edward Peeter , and Thomas Peeter Esquires , Com-plainants , and the said Thomas Temple and Hester his wife being deforceants

That this Fine was so levyed to the use of one William Peeter Esq ; and his Heirs .

That the said William Peeter , being seised by vertue of the said Fine and Statute of Uses , the said Vicaridge became void by the Resignation of the said John Cragg and the said William Peeter presented in his turn thereto one Robert Kenrick his Clerk , who was accordingly admitted , instituted and inducted tempore Car. 1.

That the said Tho. Temple being seised of the said two third parts of the said Mannor , to which , &c. dyed so seised at Burton Basset aforesaid .

That after his death the said two third Parts to which , &c. descended to one Peter Temple his Son and Heir , who was thereof seised , and dyed so seised .

That after his death , the same descended to the said Richard Temple his Son and Heir , who was , and yet is , seised of the said two third Parts

That being so seised , the said Vicaridge became void by the death of the said Robert Kenrick , which vacancy was the third vacancy of the said Vicaridge after the said first Presentation of the said Thomas Temple .

That the said Richard 12. Decembris anno 1654. presented to the said Vicaridge in his turn one Richard Manfell his Clerk , who upon his Presentation obtain'd the said Vicaridge , and was in actual possession thereof , and so being in possession a Statute was made the 25th . of April 12. of the King for confirmation and establishing of Ministers in their Ecclesiastick Possessions , ordained by any Ecclesiastick Persons before the 25th of December , then last past : And that the said Richard Manfell by vertue of the said Statute was real and lawful Incumbent and Vicar of the said Vicaridge .

That the said Lord Wootton and Mary his Wife being seised of the said third part of the said Mannor and Rectory aforesaid for their lives with remainder , as aforesaid , the said Lord Wootton so seised dyed at Burton Basset aforesaid .

That the said Mary survived him , and was thereof sole seised for term of her life by Survivorship . And being thereof so seised with Remainder , as aforesaid .

The said Margaret married the said John Tufton , and after the 8th . day of August 22. Car. 1. By a writing under her hand and seal produc'd in Court by the said John Tufton dated the same day and year appointed , that the said Fine leavyed as aforesaid in the 4th . year of the King should be , and the Conusees therein named should stand seised of the said third part , to the use of the said Margaret , and of the said John Tufton for term of his life , as by the said writing more fully appears .

By vertue of the said Fine and Statute of uses , the remainder of the said third part , after the death of the said Mary belong'd to the said John Tufton and Margaret for term of the said Johns life with remainder as aforesaid .

That the said Mary being seised of the said third Part with remainder over as aforesaid , the said Margaret at Burton Basset aforesaid , dyed without issue of her body , and the said John Tufton surviv'd her .

That the said Mary afterwards at Burton Basset aforesaid dyed seised of such her Estate , after whose death the said third part remain'd to the said John Tufton , who was thereof seised for term of his life with remainder over to the Heirs of the Lord Wootton .

That the said Tufton being so seised in a Statute made at Westminster . begun the 8th . day of May in the 13th . year of his reign and there continued until the 19th . of May in the 14th . year of his reign : It was among other things enacted , That Parsons , Vicars , and other Churchmen being Incumbents of any Ecclesiastical Living should subscribe the Declaration or Recognition set forth in the said Act in manner as by the said Act is recited ( which is set forth at large in the Pleading ) upon pain of forfeiting the said Parsonage , Vicaridge , or other Ecclesiastical Living , and to be ipso facto deprived of the same .

And the said John Tufton in fact saith , that the said Richard Mansell was in possession of the said Vicaridge of Burton Basset , and did not , as by the Act was required , subscribe the said Declaration , whereby he stood ipso facto deprived , and the said Vicaridge became void .

That such vacancy of the said Vicaridge is the third vacancy thereof , after the aforesaid Presentation of the said Lord Wootton , and therefore it belongs to the said John Tufton to present a fit Person to the same , and that the said Bishop , Richard Temple and Chamberlayne do hinder him so to do to his damage of fifty Pounds .

The said Bishop and Richard Temple plead in Bar. And first the said Bishop , That he claims nothing , but as Ordinary .

Then the said Richard Temple saith , the said Tufton ought not to have his Action against him , and taking by Protestation , that the said Tufton was not seis'd in his Demesn , as of Freehold for Term of his life of the third part of the said Mannor of Burton Basset , and of the third part of the said Rectory of Burton Basset aforesaid , for Plea saith ,

That he the said Richard Temple was , and yet is , seised of the said two parts of the said Mannor , and of the Advowson of the Vicaridge of Burton Basset aforesaid , as appertaining to the said two parts of the said Mannor in his Demesne as of Fee , and right , in the time of the King that now is ,

That being so seised the said Vicaridge became void by the said Deprivation of the said Richard Manfell , by reason whereof he the said Richard Temple , being seised of the said Advowson as aforesaid , presented to the said Vicaridge , the said Chamberlain , as was lawful for him , then traverseth absque hoc , That one third Part of the Advowson of the said Vicaridge , namely to present a fit person to the same Vicaridge every third turn of the said Vicaridge doth appertain to the said one third part of the said Mannor , and to the said one third part of the Rectory Impropriate of Burton Basset , as the said John Tufton hath alledg'd , which he is ready to aver , and demands Judgment .

And the said Chamberlaine the Clerk , taking by Protestation , that he doth not know any the matters in the Declaration to be true ; and taking also by Protestation , that before the said Vicaridge became void by the Deprivation of the said Richard Manfell , and at the time it was so void , the said Richard Temple was , and yet is , seised of the said two parts of the said Mannor , and of the Advowson of the Vicaridge of the said Church of Burton Basset , as appertaining to the said two parts of the said Mannor in his Demesne , as of Fee and right : And for Plea saith ,

That he the said Chamberlain is Vicar of the said Vicaridge by the Presentation of the said Richard Temple , and was thereto admitted , instituted and inducted .

Then traverseth absque hoc , That the said Thomas Lord Wootton after the death of the said John Reignalds , so as aforesaid presented to the said Vicaridge , being void in his turn , the said John Cragg , as the said Tufton hath alledg'd , and demands Judgment .

As to the Bishops Plea , his excuse is admitted , and the Plaintiff hath Iudgment with a cessat executio against him , and a Writ to admit idoneam personam to the Vicaridge non obstante reclamatione .

To the Defendant Temples Plea the Plaintiff demurs , and the Defendant Temple joyns in Demurrer .

To the Plea of Chamberlain the Incumbent the Plaintiff replys , That the said Thomas Lord Wootton after the death of the said John Reignalds Incumbent , as aforesaid , presented to the said Vicaridge then vacant in his turn as aforesaid , the said John Cragg , as the Plaintiff hath formerly alleag'd , Et de hoc petit quod inquiratur per patriam .

To which the Defendant Chamberlain doth not rejoyn any thing , nor joyns in issue , and therefore the Plaintiff hath Judgment to recover his Presentation , as against him , and a Writ to the Bishop non obstante reclamatione , and to remove the Defendant Chamberlain from the Vicaridge , notwithstanding his Admission , Institution and Induction , but with a cessat executio until the Plea be determined between the Plaintiff and the Defendant Temple .

THIS CASE in fact cannot be put shorter than as it hath been open'd to be upon the Record ; It being a history of several Presentations to the Vicaridge of Burton Basset , and of several suppos'd Titles , so to present in the persons , who presented .

The Questions therefore in this Case do arise from the causes of the Plaintiffs demurring to the Defendants Plea , which as hath been insisted on , are two .

1. The first is , That in a Quare Impedit Plaintiff and Defendant are both Actors , and either of them , as their right happens to fall out , may have a Writ to the Bishop to admit his Clerk , That therefore either of them must make out a sufficient Title .

For it will be unreasonable , That a man should have a Writ to the Ordinary to admit his Clerk , who hath made no Title appear to the Court , why it should be granted him .

That the Law is clear , the Plaintiff in a Quare Impedit must in his Count alledg a Presentation in himself , or those from whom he claims , and that therefore the Defendant should likewise so do .

But in this Case the Defendant in his Plea hath alledged no Presentation in any from whom he claims , or in himself .

2. The second cause of Demurrer insisted on , is , That the Defendant hath by his Plea traversed the appendency alledged in the Plaintiffs Count of the third part of the Advowson of the Vicaridge of Burton Basset to the third part of the Mannor , and third part of the Rectory of Burton Basset , whereas he ought to have travers'd the Presentation alledged by the Plaintiff in the Lord Wootton , by whom the Plaintiff claims , and not the appendency : And divers Authorities have been pretended , that so is the Law .

1. As to the first cause of Demurrer : It is true , that in a Quare Impedit both Plaintiff and Defendant may be Actors , and either have a Writ to the Bishop , as the right falls out to be .

But it is not true , that both are always Actors in a Quare Impedit : For if the Defendant hath presented his Clerk , and he be admitted , instituted and inducted before the Quare Impedit brought , the Defendant hath then no cause to have a Writ to the Bishop for the doing of that which is already done ; and consequently in such Case the Defendant is no Actor but a bare Defendant .

When a man hath presented , and his Clerk is instituted , and inducted , he is at the end of his work , and hath no more to do than to keep what he hath gotten ; for thereby he hath a full possession , which is Title sufficient , if there be not a better .

But the Plaintiff , who is to recover that which he hath not , must shew a good Title before he can recover , or he shall never avoid the Defendants possession by shewing no Title , or an insufficient , which is the same with none .

It can be neither Law nor Common Reason for the Plaintiff to tell the Defendant , you have no good Title , and thence to conclude therefore I have .

The Plaintiff must recover if at all by his own strength , and not by the Defendants weakness , as is well urg'd and clear'd in Digbies and Fitzherberts Case in the Lord Hobart .

The Defendant hath alledged in his Plea a Title pro forma , and that he hath presented by reason thereof , and that his Clerk is instituted and inducted , which is sufficient for the present and future time , if no better Title be oppos'd to it , without alledging any other Presentation in himself , or any from whom he claims .

But if the Defendant were out of possession , as the Plaintiff is , he must then make out a good Title , as the Plaintiff now must , or else the Defendant should never have a Writ to the Bishop to admit his Clerk ; and in such Case only it holde true , That the Defendant is Actor as well as the Plaintiff .

And in such Case he is to alledg a Seisin of the Advowson , as the Plaintiff must in himself , or those from whom he claims , which can never be done without alledging a former Presentation , that being the only actual Seisin of an Advowson ; for the cause , why he should present to the present vacancy .

So as the not alledging a former Presentation will be no objection to the Defendants Title , besides the Plaintiff hath alledg'd a Presentation both in his Ancessor Sir Thomas Temple of Reignalds , and in himself of Manfell for him , but I make no account of that , for if the Defendant will take advantage of a Title admitted him by the Plaintiff , he must take it as the Plaintiff gives it , which in this Case the Defendant doth not .

For the Plaintiff by his Count makes the Defendants Ancestor and himself seis'd in their Demesne , as of Fee , of 2 Parts of 3 of the Mannor of Burton Basset , and of a third part of the Advowson of the Vicaridge of Burton Basset , as appendant to the said 2 Parts .

But the Defendant by his Plea saith he was seised in Fee of 2 Parts of 3 of the said Mannor , and of the intire Advowson of the Vicaridge , as appendant to the same 2 parts , and so presented , which is another Title than that admitted by the Plaintiff .

2. For the 2 cause of Demurrer , which is a point of more difficulty , I take it for Law , and shall accordingly prove it , That when the Defendant traverseth any part of the Plaintiffs Count or Declaration in a Quare Impedit , it ought to be such part , as is both inconsistent with the Defendants Title , and being found against the Plaintiff doth absolutely destroy his Title , for if it doth not so , however inconsistent it be with the Defendants Title , the Traverse is not well taken .

To prove this I shall make use of 2 Cases urg'd at the Bar for the Plaintiff : but rightly understood , are fully against him .

The first is 10 H. 7. f. 27. 10 H. 7. f. 27. in a Quare Impedit the Plaintiff declared , that he presented such a one his Clerk , who was admitted , instituted and inducted , and after the Church became void , and he ought to present , the Defendant pleaded his Ancestor was seis'd of a Mannor , to which the Advowson was appendant , and presented , and that the Mannor descended to him , and that the Church being void , he presented and traversed , absque hoc , that the Advowson is in gross .

It was adjudged , that the Defendant ought to have traversed the Presentation , and not the Seisin of the Advowson in gross .

Whence it was inferr'd , that in the present Case the Presentation alledg'd ought by like reason to have been traversed , and not the appendency , for traversing , the appendency in this Case differs not from traversing the Seisin in gross in that Case .

But the reason of that Iudgment , when rightly understood , is very clear .

1. The Plaintiff in the Quare Impedit ( as the Case appears in the book ) did not declare , that he was seis'd of the Advowson in gross , and presented ( though perhaps if the Original Declaration did appear , it might be he did so declare ) but declares , that he presented , and his Clerk was admitted , instituted and inducted , and the Church becoming void , it belong'd to him to present again .

For which reason , be alledging no Seisin in gross of the Advowson , but only his Presentation , and that his Clerk was received , the Defendant formally ought to have traversed the Presentation , which was alledg'd , and not the Seisin in gross of the Advowson , which was not alledged .

But the Case is the same , whether he did , or did not , alledg in his Declaration , that he was seis'd of the Advowson in gross and presented .

For still the Plaintiffs Presentation was to be traversed by the Defendant , and not his being seis'd in gross , though it were true , that the Defendant , making Title by the appendency of the Advowson to his Mannor , the Plaintiffs Seisin in gross was absolutely inconsistent with the appendency , and therefore speciously to be traversed by the Defendant .

But that traverse left a Title in the Plaintiff not destroyed , and therefore was not good .

For whether the Plaintiff were seised or not of the Advowson in gross , he presenting in the vacancy , and his Clerk being admitted , instituted and inducted , he thereby gained a good Title by Vsurpation to present , when the Church became next void .

And that is the true reason in that Case , why the presentation which made the Plaintiffs immediate Title to present again , was to be traversed , and not his Seisin in gross of the Advowson , which was not material , when his Vsurpation gave him a Title , though he were not seis'd in gross before his Vsurpation .

Ander . 1 Part f. 296. p. 276. The next Case I shall use is as good authority out of the new Books as the other was out of the old . It is the Lord Buckhursts Case reported in the first part of the L. Anderson .

The L. Buckhurst brought a Quare Impedit against the Bishop of Chichester and T. Bickley for disturbing him to present to the Vicaridge of Westfield , and declared that the Advowson of the Vicaridge appertain'd to the Rectory of Westfield , whereof he was seised in Fee , and presented Maurice Sackvil his Clerk , who was thereto admitted , instituted and inducted , that the Vicaridge was a Vicaridge with Cure of the annual value of 8 l. And that the said Sackvil accepted another Benefice with Cure , by reason whereof , and of the Statute of 21 H. 8. the Vicaridge became void , and he presented and was disturbed by the Defendants .

The Bishop pleaded , that before the Writ purchased one Richard Bishop of Chichester , his Predecessor , was seised of the Advowson of the said Vicaridge in Fee as in gross , and collated to the said Vicaridge being void , one Maurice Berkley , who was inducted thereto , and the said Richard dying , the present Bishop was made Bishop , and became seised of the Advowson , and the Church became void by the said Sackvil's taking another Benefice with Cure , and he collated the said Bickley the other Defendant , and traversed absque hoc , that the Advowson of the said Vicaridge pertained to the Rectory of Westfield modo & forma , as the Plaintiff alledg'd . And Bickley , the other Defendant , pleaded the same Plea .

Vpon these Pleas it was demurred , because the traverse to the Appendency was not good , as was alledged ; and after much Argument , and many Cases cited , where the Appendency was traversable .

The Court resolved the appendency was not traversable in the Case , nor was it material , whether the Advowson were appendant or in gross , as the book is express , so as nothing could be traversable in the Case then , but the Lord Buckhursts Presentation , which after the Induction of his Clerk , though it were by Vsurpation made him a good Title to present , when the Vicaridge became next void .

Whence it follows , that if the Defendant could not traverse the L. Buckhursts Presentation of Sackvil , which was his immediate Title , the Defendant was remediless , but by a Writ of Droit d'Advowson .

And in the resolution of this Case of the L. Buckhust , the Case of 10 H. 7. before cited was principally relyed on , as warranting the Iudgment which it fully doth , it being adjudged for the same reason there , that the Seisin in Fee of the Advowson in gross was not traversable , but the Presentation was , as it was adjudged in this Case , that the appendency was not traversable by the Defendant , but the Presentation .

And by the way I observe , Hobart . Digbies Case f. 102. that in the Report of the Lord Buckhurst's Case it is admitted , that the Plaintiff in the Case of 10 H. 7. did count , that he was seised of the Advowson in gross and presented , whereas I noted the Original Case in the Book is , that he counted only upon his Presentation , and probably it was so for the reasons given in Digbies Case by the Lord Hobart , that a bare Presentment is only militant , when so alledged by the Plaintiff , and may be in such a Case , as may prove the Defendant to have right of presenting at the present avoidance , if no right be alledged by the Plaintiff , why he should present .

Whence I collect , that in both these cases of 10 H. 7. and this of the L. Buckhursts , though there were a manifest inconsistency in the first Case between the Plaintiffs Count , that he was seised of the Advowson in gross , and presented , and the Defendants Title , that he was seised of a Mannor , to which the Advowson was appendant ; for it was impossible it should be appendant for the Defendant , and in gross for the Plaintiff .

And in the L. Buckhursts Case , who counted that he was seised of the Rectory of Westfield , to which the Advowson of the Vicaridge belong'd , and the Defendant made Title , that he was seised of the Advowson in gross , which Titles were directly inconsistent , yet neither the Seisin in gross in the first Case , nor the appendency in the last Case were traversable , but the Presentation of the Plaintiffs in both , which made their immediate Titles to present at the next avoidance , whether there were a Seisin in gross , or an appendency or not , when they first presented .

As in these 2 Cases the true reason of the Law appears , why the Seisin in gross of the Advowson , nor the appendency of the Advowson alledged by the Plaintiffs were not traversable , but only the Presentation .

Hob. Digbies Case f. 103. By these Cases the Lord Hobarts scruple in Digbies Case is satisfied , where he thinks , that if a man hath gained a Title by Vsurpation at the next avoidance , he must not declare , that he was seised in Fee , formerly of the Advowson , and presented ; but must declare specially of the true Patrons former Presentation , and then the Church becoming void , that himself presented , lest otherwise he declaring , that he was seised of the Advowson in Fee , the Defendant should trice him by traversing his Seisin , which was false , when in truth he had a right to present by Vsurpation , for by these Cases it is clear , that the Seisin in gross , nor appenden●y are traversable , though alledged by the Plaintiff , when he hath gained a Title by Usurpation , but the Presentation ought to be traversed .

I shall for clearing this Learning shew in the next place , when the Seisin in gross , or appendency of the Advowson alledged by any Plaintiff in his Count is traversable by the Defendant , and not the Presentation , and the true reason of the difference .

27 H. 8. f. 29. In a Quare Impedit , the Plaintiff declared , that I.S. was seised in Fee of a Mannor , to which the Advowson was appendant , and presented , and after infeoffed the Plaintiff of the Mannor , whereby he became seised , until the Defendant disseised him , and during the Disseisin , the Church became void , and the Defendant presented , the Plaintiff entred into the Mannor , and so recontinued the Advowson , and the Church is again become void , whereby the Plaintiff ought to present .

The Defendant pleads , that a stranger was seised of 4 Acres of Land , to which the Advowson is appendant , and presented and of the four acres infeoffed the Defendant , and the Church being void it belongs to the Defendant to present , and takes a Traverse absque hoc , that he disseised the Plaintiff of the Mannor .

This Traverse was adjudged not good ; for the disseisin , or not disseisin of the Mannor was not material to intitle the Plaintiff to the Quare Impedit ; but all his Title was by the appendency of the Advowson to the Mannor , and therefore the Traverse ought to have been , and was so resolved to the appendency , which destroyed the Plaintiffs intire Title to present , and also inconsistent with the Defendants appendency of the Advowson to his four acres .

I shall only put one Case more to the same purpose out of the new Books reported by the Lord Hobart .

Sir Henry Gawdy Kt. brought a Quare Impedit against the Arch-Bishop of Canterbury , Sir William Bird , and Humfrey Rone Clerk , Sir Hen. Gandies Case Hob. 301. and declared that Sir Rich. Southwell was seised of the Mannor of Popenho in Norfolk , to which the Advowson was appendant and presented , and his Clerk was instituted and inducted , that Southwell bargained and sold the Mannor to one Barow , who being seised , the Church became void by the death of Southwels Incumbent , and so continued for eighteen months , whereby the Queen in default of the Patron , Ordinary and Metropolitan presented by Lapse one Snell , then by mean Conveyances derives the Mannor to which the Advowson is appendant to himself , and that by the death of Snell it belongs to him to present , and is disturbed by the Defendants .

The Archbishop claims nothing , but as Ordinary , Sede vacante of the Bishop of Norwich .

Sir William pleaded ne disturba pas .

And Rone the present Incumbent pleaded , that he was Parson by the Kings Presentation , and that long before Southwell had any thing in the Mannor Queen Eliz. was seised of the Advowson in gross in right of the Crown , and presented Snell ; that the Advowson descended to King James by the death of the Queen ; and he being seised , the Church becoming void by Snell's death , presented the present Incumbent , who was instituted and inducted .

And traversed absque hoc , that the Advowson was appendant to the Mannor of Popenho , and thereupon Issue was joined .

In this Case also the Traverse of the appendency by the Defendant was clearly good , and so admitted , for the Plaintiff Gaudy had no more , nor other Title to present than by the appendency of the Advowson to the Mannor , and the Incumbents death , and the appendency to the Mannor was inconsistent with the Defendants Title by the Advowson's being in gross .

These two last Cases fully prove the Rule by me taken , and which will conclude the Case in question , that the Traverse is well taken to the Appendency of the Advowson , when it is all the Plaintiffs Title to present , and is inconsistent with the Defendants .

But in this Case of Gawdys , the Iury found specially , that Southwell was seised of the Mannor with the Advowson appendant and presented , and that the Incumbent dying 2 Feb. 1588. the Queen the 15th . of Feb. in the same year presented Snell to the Church then void , per mortem naturalem ultimi Incumbentis ibidem vacantem . Et ad nostram Praesentationem jure praerogativae Coronae nostrae Angliae spectantem , and her Clerk instituted by Letters of Institution , running per Dominam Reginam veram & indubitatam , ut dicitur , patronam .

And after the death of Snell , King James presented Rone in these words , ad nostram praesentationem , sive ex pleno jure , sive per lapsum temporis , sive alio quocunque modo spectantem : and referr'd to the Court , whether the Advowson were appendant to the Mannor or not ; It was adjudged .

1. That the Advowson remained appendant notwithstanding the Queens Presentation .

2. That her Presentation could not be by Lapse , for her Presentation and Institution and Induction were in the same month of Febr. wherein the voidance was .

3. If the Queen had presented by Lapse it had made no severance of the Advowson .

4. That the Queens Presentation made no Vsurpation , because she presented , as supposing she had a Title in right of her Crown , as appeared by the form of her Presentation , which is very remarkable , and therefore her Presentation was meerly void ; for it shall not be intended , the Queen took away anothers right against her own will and declared intention .

5. For the same reason King James his Presentation of Rone , who by the form of his Presentation supposed he had a good Title , when he had none , was also void : and this agrees with the Resolution in Greens C. the 6th . Rep. that the Queens Presentation made as by Lapse , when she had no such Title to present by lapse , but another Title either in right of her Crown , or by Simony , or some other way , was void , because she was mistaken in her presentation : So if she presents by reason of some supposed Title in her Letters of presentation , when indeed she had no Title at all , the Presentation is meerly void , and though such Presentation make a plenarty , so as to avoid Lapse , yet the right Patron is not out of possession , but may present 7 years after , and if his Clark be inducted , the former presentee is immediately outed .

Hence it is to be noted as a point very observable in this Learning , that though the King may present by Usurpation , yet he shall never present by Usurpation if in the Letters of Presentation , he present by some Title which he hath not ; but if he present generally , making no Title at all by his Presentation , and his Clerk be received , and dyes , he hath gained a Title by Usurpation .

But if the King declare in a Quare Impedit , that he was seised of the Advowson in gross , or as appendant to a Mannor and presented , if he had presented before by Usurpation , the Defendant shall not traverse his Seisin of the Advowson or appendency at all .

So is it in the Case of a Common Person also , as appears in the end of the Case , 10 H. 7. where it is said , It was agreed by the Court , that if the Plaintiff entitle himself to an Advowson , as appendant to a Mannor , and sheweth a presentment , as appendant ( for so are the words ) and the Defendant shews another Presentment , without that that the Advowson is appendant , this Traverse is good , for if it be not appendant , as the Plaintiff declares , it is sufficient to destroy his Declaration ; and so there both are traversable , but otherwise , as the Case is here , viz. the principal Case first cited .

I conceive the meaning clearly to be that in the principal case , the Seisin in gross of the Advowson alledged in the Declaration was not traversable , but the presentation , which might be by Vsurpation , and made a good Title , though the Plaintiff were not seised in gross of the Advowson .

But if the Plaintiff declare the Advowson to be appendant to a Mannor , and withal sets forth in his Declaration the Letters of Presentation to the Church as appendant , there the Defendant may traverse either the appendency or the Presentation ; for though the Advowson were appendant , yet if the Plaintiff presented not , he had no Title .

Whence I infer , that if the Plaintiff had only counted a Seisin of the Mannor , to which the Advowson was appendant without shewing the presentment to be to the Church by vertue of the appendency ; the traverse of the appendency had not been good , but it must have been of the Presentation , which might have been by Usurpation , notwithstanding the alledging barely of the appendency , as is resolved before in the point in the Lord Buckhursts Case in Anderson , and in the principal Case of 10 H. 7.

But when the Count is of the appendency of the Advowson , and also of the Presentation to it as appendant there , there could be no Usurpation according to the Resolutions in Sir Henry Gaudies Case in the Lord Hobart before cited , and in Greens Case in the 6th Report of the Lord Cook .

And the not observing of this difference made the Reporter at the end of th● L. Buckhursts Case deny this latter part of the Case in 0 H. 7. because it was clearly against the reason of the principal Case in 10 H. 7. and against the Resolution of the L. Buckhursts Case , if the words of shewing the presentment to have been as appendant had been omitted in the Case .

But those words make the latter Case in 10 H. 7. exactly to agree with the Judgments both in Sir Henry Gaudies Case in Hob. and Greens Case in the 6th . Rep.

15 H. 6. Fitzh . Quare Imped . num. 77. To the 4 first Cases may be added the Case of 15. H. 6. where the Plaintiff counts in a Quare Impedit , that his Ancestor was seised of a Mannor , to which the Advowson is appendant , and presented and dyed , and that the Mannor descended to the Plaintiff , and the Church became void , whereby he ought to present : the Defendant pleads , that long after the Presentation alledged by the Plaintiff , the Defendant was seised of the Advowson in Fee , and presented such a one , and after the Church became void , and he presented the present Incumbent , and this Plea was allowed a good plea by the Court , without answering to the appendency alledged by the Plaintiff , which was in effect avoided by the Defendants Presentation after : And in this Case the Plaintiff was without remedy , unless he could traverse the Presentation alledged by the Defendant , otherwise than by his Writ of Droit d'Advowson .

Crook 2. Car. f. 61. Sir Greg. Fenner vers. Nicholson & Pasfield . As also the Case in Crook . If the Plaintiff make Title to present , as being seised of an Advowson in gross , or as appendant , and the Defendant make Title , as presented by reason of a Simoniacal presentation made by the Plaintiff , and thereby a Devolution to present to the King , under whom the Defendant claims , because the Defendant doth admit the Advowson to be in gross or appendant in the plaintiff , and that neither of them is inconsistent with the Title , made by the Defendant , he shall not traverse the Seisin in gross , nor the appendency ; but because somewhat else is necessary to give the plaintiff right to present , that is the vacancy of the Church , either by death or resignation or deprivation , which the plaintiff must alledg , and which are inconsistent with the Defendants Title , who claims not by vacancy , by death , resignation or deprivation , but by the Simony ; therefore he shall traverse the vacancy alledged either by death , resignation or deprivation , as the Case falls out , without one of which the plaintiff makes no Title , and if the present vacancy be by either of them , the Defendant hath no Title .

Now to apply these Cases to the question before us , whether the Defendant should have traversed the Presentation of the Lord Wootton alledg'd by the plaintiff , or the appendency ( which he hath done ) to the third Part of the Mannor , and third Part of the Rectory of Burton Basset . It seems clear , That in all Cases of Quare Impedits , the Defendant may safely traverse the Presentation alledged in the Plaintiffs Count , if the matter of fact will admit him so to do : for the Plaintiff hath no Title without alledging a Presentation in himself , his Ancestor , or those from whom he claims the Advowson ; but the Defendant must not traverse ( that is deny ) the Presentation alledged , when there was a Presentation , for then the issue must be found against him .

The Lord Wootton therefore having presented , by what right soever it was , there was no traversing his Presentation .

But by what right soever the Lord Wootton presented the Plaintiff hath no right to present , unless the Lord Woottons Presentation were by the appendency to the third part of the mannor , for he deriving no title to the Advowson as in gross , nor any other way , but as belonging to the third part of the Mannor , which he derives from the Lord Wootton : Therefore nothing is traversable by the Defendant but the appendency , which , if found against the Plaintiff , he hath no colour of Title .

Pasc . 19. Car. 2. Rot. 484. C. B. Henry Edes Plaintiff in a Quare Impedit against Walter Bishop of Oxford .

THat he was , and is , seised of the Advowson of the Church of Chymer in gross , in Fee , and thereto presented Will . Paul his Clerk , who was instituted and inducted accordingly , That after the Church becoming void , and so remaining by the death of the said William Paul , and it belongs to him to present , he is hindred by the Defendant .

The said Bishop by Protestation , saying the Church did not become void by death of the said William Paul , pleads that the said Church was full of the said Paul .

The said W. Paul was created Bishop of Oxford , whereby the said Church became void , and the right of presentation devolv'd to the King by Prerogative .

25 H. 8. c. 21. Then pleads the clause of the Act of 25 H. 8. which impowrs the Archbishop of Canterbury to give faculties and dispensations as the Pope did at large .

That after and before the Writ purchased Decimo of the King the said William Paul dyed at Oxford .

That after his death , the Defendant was elected Bishop of Oxford , and after and before the Writ purchased , viz. the 27. of November 1665. Gilbert now Archbishop of Canterbury and Primate of all England by his Letters of Dispensation according to the said Act , and directed to the said Walter , the Defendant , now Bishop , under his Seal then elect , and upon the Bishops petition of the means of his Bishoprick .

Graciously dispensed with him together with his Bishoprick , the Rectory of Whitney in the Diocess and County of Oxford , which he then enjoyed ; and the Rectory of Chymer aforesaid , which he by the Kings favour hoped shortly to have , to receive , hold , retain and possess in Commendam , as long as he lived and continued Bishop of Oxford , with , or without Institution and Induction , or other solemnity Canonical , and to take and receive the profits to his own use without Residence . Quantum in eodem Archiepiscopo fuit , & jura regni paterentur .

The Letters of Dispensation not to be effectual without the Kings Confirmation .

That the King after the 28 of Novemb. 17. of his Reign under the great Seal to the said Church , so void by Cession , presented the Defendant , then as aforesaid , Bishop Elect , and after , that is , the 28. of Novemb. 17. Car. 2. the King by his Letters Patents under the great Seal , dated the same day and year , and duly inrolled in the Chancery according to 25 H. 8. did confirm the Letters of Dispensation , and that the said Bishop might enjoy all things contained in them according to the form and effect thereof with clauses of non obstante aliquo Statuto , or other matter .

Then averrs , that the cause of Dispensation was not contrary to the word of God , and that the Pope in H. 8. time did use to grant the like Dispensations to the Kings Subjects , which he is ready to averr , &c.

The Plaintiff replys , That true it is William Paul Praedict . was elected Bishop of Oxford , being Incumbent of Chymer , but that after his election , and before his creation , he 2 Decemb. 1663. obtained Letters of the Archbishop under his seal of Faculties for causes therein mentioned of Dispensation to hold the Church of Brightwell , and the Rectory of Chymer , both which he then lawfully had , and to retain the same with his Bishoprick , after his consecration , &c. durant . vita sua natural . & Incumbentiâ suâ in Episcopatu praedict. & quamdiu eidem Episcopatui praeesset .

The King 9. Decemb. 15. of his reign confirmed the Letters Patents under the great Seal with non obstante according to the Ordinary form .

30. Decemb. 15. Car. 2. was created Bishop .

Vpon this Replication the Defendant demurs , and the Plaintiff joyns in Demurrer .

Note the Defendant doth not shew to whom he was presented .

He doth not say , that he enter'd by vertue of the Presentation of the King in Chymer .

In discussing the Case , as it appears , upon this Record , I take it granted .

1. If a person Incumbent of one or more Benefices with Cure be consecrated Bishop , all his benefices are ipso facto void .

2. Vpon such voidance the King , and not the Patron is to present to the benefices so void by Cession .

3. That any Dispensation after the Consecration comes too late to prevent the Voidance .

4. That the Pope could formerly , and the Arch-bishop now , can sufficiently dispense for a Plurality by 25 H. 8.

I shall therefore first make one general Question upon the Case as it appears .

Whither William Paul , Rector of Chymer , and elected Bishop of Oxford , and before his Consecration dispensed with by the Archbishop to retain his said Rectory with the Bishoprick , and having the said Letters of Dispensation confirmed by the King , and inroll'd Modo & forma prout by the Record , did not by virtue of the said Dispensation and Confirmation prevent the voidance of his said Rectory by Cession upon his Consecration ?

For if he did , the Rectory became not void until his death , and by his death the Plaintiff being Patron , hath right to present .

To determine the General Question , I shall make these Questions , as arising out of it .

1. Whether any Dispensation , as this Case is , be effectual to prevent an avoidance after Consecration ?

2. Whether the Archbishop hath power , with the King's Confirmation , to grant such a Dispensation ?

3. Whether this Dispensation in particular be sufficient to prevent a voidance of Chymer after Consecration of the late William Paul .

1. This Case differs from the Bishop of Ossory's Case in Sir J. Davies's Reports , who had a faculty accipere in Commendam with odd power , and executed it by collating himself into a Living void by Lapse .

2. It varies from the Case of Colt and Glover in the Lord Hobarts Reports , and the Dispensation there to the Bishop elect of Lichfield and Coventry , which was to retain one Benefice which he had ; and propria authoritate capere & apprendere as many as he could , under a certain value .

The defects of that Dispensation are numerous , and excellently handled by the Lord Hobart in that Case of Colt and Glover . But in our Case there is no affinity with the defects of those Dispensations , but is barely to retain what legally was had before .

Obj. 1 Per Thyrning . The Bp. of . St. Davids Case . 11 H. 4. f. 37. b. 38. a. Rolls f. 358. ob . 1. 11 H. 4. f. 60. B. per Hill . An Incumbent of a Church with cure being consecrated Bishop , his Living was void by the Law of the Land ; therefore the Pope could not prevent the voidance after consecration , for then the Pope could change the Law of the Land , and if the Pope could not , the Archbishop cannot .

The better opinion of that Book 11 H. 4. is contrary , and Answ. 1 so agreed to be in the Irish Case of Commendams , and Rolls his opinion is grounded only upon 11 H. 4.

If an Incumbent with cure take another Benefice with cure , the first is void by the Law of the Land , and the Patron hath right to present ; therefore the Pope could not grant a Dispensation , nor the Arch-bishop now can , to hold a Plurality , for that were to alter the Law of the Land , and to prejudice the Patron . But the Law was and is otherwise , therefore that reason concludes not in the case of a Bishop .

A second reason in that case of 11 H. 4. is , that such a Dispensation Obj. 2 cannot prevent the avoidance , 11 H. 4. f. 59. bi per Skreen . because there is no use of it until Consecration ; for before the Incumbent retains his Living without any Dispensation , and when consecrated , his Benefices are void , and then it is too late to dispense as is agreed .

This reason is as effectual against a Dispensation for a Plurality , Answ. 2 for before a man takes a second Living , there can be no use of it , and after by this reason it comes too late , for the Patron hath right to present .

It was in that great Case endeavoured to avoid the pressure of this Argument by saying the Dispensations in cases of Plurality were not alike with that of retaining the former Benefice , when the Incumbent was created Bishop , because in the case of Plurality there was no actual voidance , and consequently no title to the Patron to present before Deprivation , and that the Dispensation prevented the Deprivation , which was a Spiritual Act , wherewith the Patron had not to do , and by a Consequent only prevented the voidance .

It is resolv'd in Holland's Case , Digby's Case , Hollands Case . 4. Rep. Digby's Case . 4. Rep. and many others , that the Patron may present assoon as the Incumbent is Instituted in a second Living without deprivation , and that the Law was anciently so , therefore that evasion is not material .

Another answer hath been likewise offered , and passeth in the New Books for current , that in the case of Pluralities the voidance is by the Canon Law , and therefore may be dispensed with by the same Law , but in the case of a Bishop made , the voidance is by the Common Law .

If Canon Law be made part of the Law of this Land , then is it as much the Law of the Land , and as well , and by the same Authority , as any other part of the Law of the Land . And if it be not made the Law of the Land , then hath it no more effect than a Law of Utopia , therefore the Canon Law in force here is Law of the Land .

Besides their meaning is to be learn'd , who say , an Incumbents Benefice , made a Bishop , is void by the Common Law , and not by the Canon Law . The words of Thyrning in that case 11 H. 4. are , ( who was then Chief Iustice . )

11 H. 4. f. 60. b. Da. Rep. f. 81. a. & f. 68. b. I suppose that when a man Benefic'd is made a Bishop , it is by the Law of holy Church that his Benefice becomes void , and the same Law which gives the voidance may cause that it shall not be void , and that concerns the power of the Apostle . The Common Law doth not prohibit Pluralities , nor make a voidance of his Benefice when the Incumbent is Bishop , but the ancient Ecclesiastical Law of England .

Obj. 3 11 H. 4. f. 77. a. per Hill . It is a Contradiction that the Incumbent being the Bishops Subject , and the Bishop his Soveraign , should be united : the Servant , qua Servant , may as well be Master , the Tenant , qua Tenant Lord , the Deputy the Deputor , the Delegator the Delagated , which is impossible .

Answ. It is a Contradiction that a person Subject , being so should not be Subject , but no contradiction that a person Subject should cease to be so ; the subjection of the Incumbent ceaseth when the Rectory is in the Bishop ; the Deputy is not when the principal Officer executes the office in person , and relation of Lord and Tenant destroy'd , when the Lord occupies the Land himself .

If an Act of Parliament should enable every Bishop to hold his former Benefices , no contradiction would follow , nor doth now by the Dispensation .

And note , all these Reasons deny the Popes power formerly , the Arch-bishops now , and the King 's also ; for they are not Reasons against the power of the party dispensing , but that the Subject matter is capable of no dispensation .

There is no inconsistence for a Bishop to be an Incumbent , for he is a Spiritual Corporation , and being Patron of a Living , might and may have it appropriate , that is , to be for him and his Successors perpetual Incumbents .

Da. Rep. f. 80. b. The Rectories of Eastmeane and Hambleden are appropriate ad Mensam of the Bishop of Winchester , and many others in England and Ireland so appropriated .

Selden . Hist. of Tithes . ● . 6. par. 3. f. 8● . b. c. 9. par. 2. f. 253. Every Bishop , many hundreds of years after Christ , was universal Incumbent of his Diocess , received all the profits which were but Offerings of Devotion ; out of which he paid the Salaries of such as officiated under him , as Deacons or Curates in places appointed .

Quest 2 Second Question , . Whether the Pope formerly used to dispense in such a case , and consequently the Arch-bishop now can by the Stat. of 25 H. 8. c. 21 ?

1. Bishop of St. Davies Case . The particular dispensation granted to the Bishop of St. Davies in 11 H. 4. is a full instance , nor was it in the Argument of that case insisted , that the Pope could not dispense with a Bishop to retain or receive a Benefice . But the sole Question was , Whether ( in that particular case , because the Benefice to be retain'd belong'd to the presentation of a Church-man , viz. the Bishop of Salisbury ) the Dispensation did not amount to a provision , and so was within the Statute of Provisions , 25 E. 3.

2. By the Statute of 28 H. 8. it appears the Bishop of Rome did grant Faculties and Dispensations to the King's Subjects , 28 H. 8. c. 16. as Pluralities , Unions , Tryalities , Appropriations , Commendams , Exemptions ; where Commendams are enumerated : and by that Act all granted by the Pope are made void , but to be renew'd in the Chancery .

3. Procuring Commendams were so frequent in Ireland , 7 E. 4. c. 2. that a special Act of Parliament was there made 7 E. 4. against all such as should purchase Bulls for any Commendam , to put them out of the Kings protection .

4. A Bastard instituted and inducted before Deprivation , 11 H. 4. f. 78. a. & f. 60. a. 11 H. 4. f. 76. b. a Secular Priest before he became regular , whereof many were in England ( and Thyrning saith he knew that Edmond Monk of Berry , who was with Edward the Third , held many Benefices though a Monk ) and Pluralities were ordinarily dispensed with by the Pope .

5. 11 H. 4. f. 38. a. Hankford saith he hath seen that the same man was Abbot of Glastenbury , and Bishop of another Church simul & semel .

Horton , 11 H. 4. f. 76. a. The Pope may grant that one man may hold three Bishopricks at a time , which Hankford agreed , if with consent of the Patrons : For if without their consent , it was not dispensing to hold them , but granting away the property of the Patrons , which a Dispensation could not .

Henry Beaufort , Vncle to Henry the Sixth , Da. Rep. f. 80. 77. b. had a Dispensation to retain the Bishoprick of Winchester , being Cardinal , but it was ineffectual , because obtained after he was Cardinal .

Cardinal Woolsey obtained before he was Cardinal a Dispensation to hold the Arch-bishoprick of York , and the Abbey of St. Albans , together with his Cardinalship .

Lindwood . Titulo de Praebendis cap. Audistis , Lindwood . f. 100. b. Potestas quae secundum antiqua jura dabatur Episcopis ad dispensandum super pluralitate Beneficiorum restricta est , saltem in dignitatibus & Beneficiis curatis , sed circa beneficia simplicia bene poterunt Episcopi dispensare . And in the same Gloss , In dignitatibus & curatis solus Papa dispensat .

Authority in the point that a Rector of a Church dispens'd with according to 25 H. 8. before he is consecrated Bishop , remains Rector , as before , after Consecration .

●8 H. 6. f. 19. Br. Spoliation . pl. 4. 1. Where the Pope licenses one who is created a Bishop to retain his ancient Benefice , and the Patron presents another , the elder Incumbent sues a Spoliation in the Spiritual Court , it well lyes , for both claim by the same Patron , Quae supradicta omnes concesserunt , saith the Book .

Fitz. N. B. Tit. Spoliation f. 36. b. 2. The Writ of Spoliation lyes properly by one Incumbent against another Incumbent , where the right of the Patron comes not in debate .

As if a person be created Bishop , and hath a Dispensation to hold his Rectory , and after the Patron presents another Incumbent , who is instituted and inducted , the Bishop shall have against that Incumbent a Spoliation , this proves the Bishop to continue Incumbent after his Consecration , and to hold his Rectory by his former presentation .

Dy. 6. El. f. 228. b. pl. 48. 6 & 7 El. f. 233. A. p. 12. John Packhurst , Rector of Cleve in Gloucestershire , had a Dispensation to hold it notwithstanding he were advanc'd to any Bishoprick in the Realm , for three years from the Feast of St. Michael , 1560. to the same Feast 1563. he was after consecrated Bishop of Norwich , and within the three years resign'd : the Queen presented _____ one her Chaplain , supposing she had title by Cession of the Bishop ; Sir H. Sydney the Patron brought a Quare Impedit , and the Church was found to be void by Resignation of the Bishop of Norwich , and recover'd and had Judgment .

1. This case proves the Bishop of Norwich Incumbent , as formerly , notwithstanding his Consecration , else the Living had not voided by his Resignation .

2. The Dispensation was only for three years , yet he was as intire Incumbent , and might resign during those three years , as if he had not been Bishop .

3. It proves the Dispensation may be for a time only to hold his former Benefice , & ad modum concedentis , which clears the last Question , that in such a Commendam retinere the Dispensation is good , though it be but for as long as he is Bishop of that See , and then determines .

An Incumbent made Bishop , and retaining by Dispensation , may have ( which none but a perfect Incumbent can have ) a Writ of Spoliation , Juris Utrum , Vi Laica Removenda , Annuity for him , or Annuity brought against him .

In the Bishop of Ossory's case , they which argued against him conclude , out of all this difference results , viz. That a Faculty granted to one which is not Incumbent to take a void Benefice is void , and a Faculty to one which is Incumbent of a Benefice to retain the same is good . The other side for the Bishop concluded the Capere in Commendam good where the Patron was not prejudic'd , as in Lapse , and consequently the Retinere to be good , consented to by him who was to present upon voidance .

The Commendam Retinere may be for years , or any time , Colt and Glovers Case , Hobart . f. 156. the difference is manifest if their nature and reason be observed .

The difference between Retinere and Capere is no less than between holding that which is already my own , and taking that which is anothers . I am already benefic'd by Presentation , &c. in ordinary form , I would take a Bishoprick which would void the Benefice , therefore I obtain a Dispensation to continue holding my Benefice for three years , I remain Parson of the same benefice of no less estate than I had before ; and when the three years are past the benefice voids , as it would have done at the first , if there had been no Dispensation .

And again , Hob. f. 158. a Bishop by Dispensation may retain as many Benefices as he had lawfully before , but take none of new if he had his number before , &c.

William Bradbridge being Bishop of Exeter , Cok. lib. Intr. f. 475. Heales Case . Rolls 344. b. pl. 2. obtain'd Letters of Dispensation from the Arch-bishop , with the Queens Confirmation to receive any two Benefices with or without cure , and retain them with his Bishoprick within his Diocess , quamdiu Episcopatui praedict. praeesset after he was presented to the Rectory of Newton ferris , and dyed , and the Patron presented Simonaically , and after six Months the Bishop presented as by Lapse , and a Quare Impedit brought against him , where the avoidance of the Church per mortem of the Bishop of Exeter is admitted , though it be taken by protestation in that case that the Church non vacavit per mortem .

Note , the Bishop of Exeter was presented to the Arch-bishop , and instituted and inducted .

If after the death of the last Bishop , who held this Church by Dispensation , the King may present , as the case is , the next succeeding Bishop to hold it by Dispensation , he may so present the third , and so toties quoties there shall be a Bishop of Oxford , and for the same reason , viz. the small Incomes of the Bishoprick .

So shall the Patron for ever loose his Presentation , omitting nothing to be done , nor committing any thing not to be done , but doing his duty in presenting a fit person , and who deserved to be made Bishop .

Objections .

Tr. 9. E. 3. pl. 6 18 E. 3. f. 21. Fitz. N. Br. f. 34. Letter F. The most specious Objection is made upon the Books of ℈ E. 3. & 18 E. 3. and the Abbot of Thorneys case there cited ; That if the King recover in a Quare Impedit , and after confirms the Incumbents estate , yet after the Incumbents death , the King shall present , and therefore in this case .

Answ. 1 When the King hath recover'd in a Quare Impedit , he hath right to present uncontrolably by the Record , and may at his pleasure sue forth Execution , and in the mean time permit the Incumbent to continue in the Benefice at his pleasure : but here it is denied that the King hath any right to present .

Answ. 2 The Kings permission or grant , that the Incumbent should not be troubled during his life , cannot be pleaded by the Patron in barr of the Kings right to present by vertue of his Iudgment , for the Kings permisson was nothing to the Patron ; and the King ought to have Execution of his Iudgment when he demands it against him .

Answ. 3 Justice Thyrning also gives the Reason of those Books , The Cause , 11 H. 4. f. 76. b per Thyrning . 45 E. 3. f. 19. saith he , is although the King confirms the Incumbents estate , yet he had not his estate or possession by the King , but by his Patrons presentment , and by the Kings confirmation his right was neither executed nor extinct .

Answ. 4 The Kings confirmation in the present case is not of the nature of his confirmation in the case of 9 E. 3. for he doth not here as there he did , intend to transfer any right of his into the Incumbent , by continuing his possession : But his confirmation here is only formal , and to compleat the dispensation of the Arch-bishop , which is not sufficient by the Rule of the Act of 25. unless confirmed by the King : It was otherwise in the Popes case before the Act.

There are many Presidents in Mr. Noy's Book , where in like Obj. 2 case , the King , after the death of a Bishop , holding in Commendam , after his translation to another See , and after his resignation , hath presented .

All those Presidents are since the Twentieth of the Queen , which Answ. 1 cannot alter the Law . 2. Who knows in the cases of death , whether those Presentations were not by consent of the Patrons ; and doubtless there are Presidents wherein the Patrons did present , else this Question had been earlier . But Judicandum est legibus non exemplis .

Vpon Translation of a Bishop holding a Commendam in the Answ. 2 Retinere , as long as he continued Bishop there , the King ought to present , for the Dispensation is determined upon his remove , and then is as if it had not been , and a Dispensation gives no property to the Living , nor takes away any .

But where property is given to the Living , as by Presentation , Institution , and Induction , or by Grant , as in Appropriations , Hob. Colts and Glovers Case . and sometimes otherwise by the King , such presenting or granting for a year or six , is to grant it during life . As an Atturnment cannot be for a time , nor a Confirmation , nor a Denization or Naturalization , and the like , but such Acts are perfect , Manwarings Case . 21 Jac. Crook . f. 691. as they may be , notwithstanding Restriction to time , as is agreed well in Manwaring's Case .

I shall say nothing of the case of Resignation , as not being in the present Question .

Judgment was given by the Opinion of the whole Court , That the Avoidance was by Death , not by Cession .

Hill. 19 & 20 Car. II. C. B. Rot. 1785. Baruck Tustian Tristram Plaintiff , Anne Roper Vicountess Baltinglass Vidua , Defendant , in a Plea of Trespass and Ejectment .

THe Plaintiff declares , That the Defendant , vi & Armis , entred into 20 Messuages , 1000 Acres of Land , 200 Acres of Meadow , and 500 Acres of Pasture , cum pertinentiis in Thornbury , Shalston , Evershaw , Oldwick , Westbury , and Looffield , and into the Rectory of Thornbury , which Thomas Gower Kt. and Baronet , and George Hilliard to the said Baruck demis'd the First of Octob. 19 Car. 2. Habendum from the Feast of St. Michael the Arch-angel last past , for the term of Five years next ensuing , into which he the said Baruck the same day entred , and was ousted and ejected by the Defendant ad damnum 40 l.

To this the Defendant pleads Not Guilty .

And the Jury have found specially , That the Defendant is not guilty in all those Tenements , besides 5 Messuages , 400 Acres of Land , 50 Acres of Meadow , 100 Acres of Pasture , cum pertinentiis in Thornbury , Shalston , Evershaw , Oldwick , and Westbury , and in the Rectory of Thornbury , and besides in one Messuage , 100 Acres of Land , 50 Acres of Meadow , and 100 Acres of Pasture cum pertinentiis in Looffield .

And as to the Trespass and Ejectment aforesaid in the said five Messuages , &c. and in the Rectory of Thornbury , the Iury say upon their Oath , that before the said Trespass and Ejectment suppos'd 22 Junii , 12 Jac. Sir Arthur Throgmorton Kt. was seis'd in Fee of the aforesaid Rectory and Tenements last mentioned , and of the said Premisses in Looffield , and so seis'd .

A certain Indenture Tripartite was made 22 Junii , 12 Jac. between him the said Sir Arthur of the first part , Edward Lord Wootton , Augustine Nicholls Kt. Francis Harvey Esq ; and Rowly Ward Esq ; of the second part , and Sir Peter Temple , and Anne Throgmorton , Daughter of the said Sir Arthur , of the third part .

To this effect , That the said Sir Arthur Throgmorton did covenant and promise with the said Lord Wootton and Sir Augustine Nicholls , in consideration of Marriage to be had between the said Sir Peter Temple and the said Anne , and other the considerations mentioned in the said Indenture by Fine or Fines , before the Feast of St. Michael the Arch-angel next ensuing , or other good Conveyance to be levied by him and the said Dame Anne his wife , to the said Lord Wootton , &c. The scite and precinct of the Priory of Looffield , the Rectory of Thornbury , and divers Mannors , Lands , and Tenements in the said Indenture mentioned , several yearly Rents therein mentioned ; and all other his Lands in the Counties of Northampton , Buckingham , and Oxford , at any time belonging to the said Priory , to convey and assure

To the use of himself , for life , without Impeachment of Waste .

Then to the use of Dame Anne his Wife .

Then to the use of the said Sir Peter Temple , and the said Anne his Wife , during their natural lives , and the longer Liver of them : and after both their Deceases ,

To the use of the first Son of the Body of Anne by the said Sir Peter begotten ; and of the Heirs Males of the Body of the said first Son , so to the sixth Son .

Then to the use of all other Sons in succession , in like manner , of the Body of Anne , begotten by the said Sir Peter .

And for default of such Heirs , To the use of all the Issues Female of the Body of the said Anne by the said Sir Peter begotten ; and the Heirs of the Bodies of the said Issues Female .

For default thereof , To the first Son of the said Anne by any other Husband , and his Heirs Males , and so to the tenth .

In like manner to the Issues Female of the Body of Anne , with divers Remainders over .

A Proviso , That it be lawful for Sir Arthur , at all times during his life , to lett , set , and demise , all or any the said Premisses aforesaid , which at any time heretofore have been usually letten or demised to any person or persons , for and during the term of One and twenty years or under , in possession , and not in Reversion ; or for or during any other number of years determinable upon one , two , or three Lives in Possession , and not in Reversion , reserving the Rents therefore now yielded or paid , or more to be yearly due and payable during such Lease and Leases , unto such person and persons unto whom the said Premises , so to be demised , shall come , and be by virtue of these Presents , if no such demise had been made , so long as the same Lessees , their Executors and Assigns , shall duly pay the Rents , and perform their Conditions according to the true meaning of their Indentures of Lease , and commit no waste of and in the things to them demised .

The like Proviso verbatim for Sir Peter Temple , and Anne his Wife , to make like Leases during their Lives , and the Life of the longer liver of them , after the death of Sir Arthur , and Dame Anne his Wife .

That a Fine was accordingly levied , &c. to the uses aforesaid .

They find that all the Messuages , Lands , Tenements , and Rectory in the Declaration mentioned , are compris'd in the said Indenture Tripartite

They find the death of Sir Arthur Throgmorton and Anne his Wife , 2. Septemb. 1 Car. 1. and that Sir Peter Temple entred , and was seis'd for term of his life .

They find he had Issue of the Body of Anne his Wife , Anne the now Defendant , Daughter and Heir of the Bodies of the said Sir Peter and Anne his Wife ; and that Anne , Wife of Sir Peter , died 2. Sept. 3 Car. 1.

1. They find a Demise by Sir Peter Temple to Sir Thomas Gower and Hillyard of the Rectory of Thornbury , 9. Maii , 23 Car. 1. for 30 l. Rent .

2. They find a Demise by him to them of a Messuage in Thornbury , 9. March , 23 Car. 1. of Woolheads Tenement , for 16 l. 13 s. 4 d. Rent .

3. They find a Demise to them , 9. March , 23 Car. 1. of Land in Thornbury , held by Roger Rogers , Rent 13 l. 6 s. 8 d.

4. They find a Demise , 9. March , 23 Car. 1. of Nelson's Tenement in Thornbury , Rent 16 l. 13 s. 4 d. at Michaelmass and Lady-day .

5. They find a Demise , 13. March , 23 Car. 1. of Lands in Shalston , Eversham , and Oldwick , held formerly by William Hughes , Rent 15 s. 4 d.

These respective Leases were made for the term of 90 Years , determinable upon the Lives of the Lady Baltinglass the Defendant , Sir Richard Temple's , and the Life of a younger Son of Sir Peter Temple , as long as the Lessees should duly pay the Rents reserved , and commit no waste , according to the Limitation of the Proviso in 12 Jac. which is recited in the respective Leases .

6. Then the Iury find , quod predicti separales reditus super praedictis separalibus Indenturis , Dimissionis reservat . fuerint reservat . reditus de & super premissis praedictis , 22. dii Junii , Anno Jacobi Regis 12. supradict. Et quod praedict. separales reditus , &c. in forma praedict. reservat . ad Festum Sancti Michaelis Arch-angeli , quod fuit 1653. debit . non solut. sive oblat . suerint super idem Festum , sed quod iidem reditus infra unum mensem prox . post Festum praedictum praefat. Annae Roper Defend . solut. fuerunt .

7. They find a Demise to them of the Scite and Priory of Looffield , 9. March , 23 Car. 1. at the Rent of 100 l. payable equally on Lady-day and Michaelmass-day ( demised by Sir Arthur Throgmorton , and Anne his Wife , 20th . of May , 12 Eliz. 1570. to William Hewer for 21 years , Rent 100 l. Lady-day and Michaelmass with some Exceptions ) for the like term of 90 years , and upon like Limitations as in the former Leases .

The Iury find quod Tenementa praedicta cum pertinentiis in Looffield supranominat . tempore dict. Eliz. nuper Reginae Angl. fuerint dimissa ad redditum 100 l. pro termino 21. Annorum , sed dimissio & terminus 21 Annorum expirati fuerunt ; Et dicunt quod eisdem Juratoribus non constabat , quod dicta Tenementa in Looffield praedict. 22 die Junii , 12 Jac. aut per spatium 20 Annorum tunc antea fuerint dimissa ; Et dicunt ulterius quod 50 l. pro dimidio unius Anni de praedictis Tenementis in Looffield , ad Festum Sancti Michaelis Arch-angeli quod fuit Anno Dom. 1653. debit . oblatae fuerint ; Et quod praedicta Anna Roper ante Festum Annunciationis prox . sequent . intravit .

They find , that Gower and Hillyard claiming the said 5 Messuages , 400 Acres of Land , 50 Acres of Meadow , and 100 Acres of Pasture in Thornbury , Shalston , Evershaw , Oldwick , and Westbury ; As also the said Messuage and other the Premisses in Looffield , and the Rectory of Thornbury , before the supposed Trespass and Ejectment , entred upon the Possession of the Lady Baltinglass , and so possessed , made a Lease to the Plaintiff , by virtue of which he entred , and was possessed , until outed by the Defendant , as by the Declaration . But whither the Defendant be culpable , they refer to the Court.

Vpon this Verdict the Questions are two :

1. The first , Whither the Defendants entry into the six Tenements leased to Gower and Hillyard , for not payment of the Rent reserv'd upon the day of payment , were lawful or not ?

And as to that the Court is of opinion , that the Defendants Entry was lawful ; for that the Leases were not deriv'd out of the Estate of Sir Peter Temple , who was but Tenant for life , and had no Reversion in him , but out of the Estate of Sir Arthur Throgmorton , by Limitation of the Proviso in the Deed , 12 Jac. so as the Leases were not Leases upon Condition to pay the Rent at the day , to which any Demand or Re-entry was requisite for Non-payment ; but were Leases by Limitation , and determined absolutely according to the Limitation . Littl. f. 235. a. For this , Littleton is express , that the words quamdiu , dum , and dummodo , are words of Limitation . As if a Lease be made to a Woman , dum sola fuerit , or dum casta vixerit , or dummodo solverit talem reditum , or quamdiu solverit talem reditum ; so are many other words there mentioned : And if there be not a performance according to the Limitation , it determines the Lease .

But it is otherwise where a Rent is reserv'd upon Condition ; for there is a Contract between the Lessor and Lessee , and the Law evens the Agreement between them , as is most agreeable to Reason , and the supposition of their Intention .

But in the present case Sir Peter Temple had no interest in him , out of which such Leases could be deriv'd , but had a power only to make them by virtue of the Proviso in Sir Arthur Throgmortons Deed , and the Lessees must be subject to such Limitations as are thereby made .

It was agreed by the Council of the Plaintiff , That it was not a Condition for payment of the Rent , nor could it be ; but they would call it a Caution . A Condition to determine a Lease or a Limitation , is a Caution , and a material one ; but such a Caution as hath no more effect than if it were not at all , is a thing insignificant in Law ; and therefore must not supplant that , which in proper terms is a Limitation , and hath an effect .

2. The next Question is upon the Lease of Looffield , which arises upon the words of the Proviso , That it should be lawful for Sir Peter Temple to demise all or any the Premisses , which at any time heretofore have been usually letten or demised for the term of 21 years or under , reserving the Rent thereupon now yielded or paid .

And the Iury finding the Lands in Looffield to have been demised 12th . of the Queen for 21 years for 100 l. Rent , and that that term was expired , and not finding them demis'd by the space of twenty years before at the time of the Indenture , 12 Jac. Whither the Lease by Sir Peter Temple of them , be warranted by the Proviso ( there being reserv'd the Rent , reserv'd by the Lease in 12. Eliz. viz. 100. l.

The Court is of opinion , that the Lease of Looffield is not warranted by that Proviso , for these Reasons .

1. It is clear , Sir Arthur Throgmorton intended to exclude some Lands from being demisable by that Proviso , namely , Such as at any time before were not usually let and set to Farm : For where a mans power is limited to lease Lands so specially qualified ; that is , let and set usually at any time before , when he could not lease at all , without such special power given him , he is absolutely barr'd from leasing Land which is not so qualified .

2. It must be presumed Sir Arthur Throgmorton knew he had such Lands , as according to his Intention were not at any time before usually set and let , and had reason not to suffer them to be demiseable within that Proviso , to the prejudice of those in Reversion . As for example , his Mansion-house , Gardens , Curtilages , and Lands occupied in Demesne .

For it had been vain to provide against the leasing of Land in such manner condition'd , whereof he had none so condition'd . But if notwithstanding , it shall be taken that any his Lands , which at any time past , how long soever since , one , two , or three hundred years , were demised , as perhaps the scite of his House and all his Demesne were , though he knew not of it , shall therefore now be demiseable within this Proviso .

Then is the Proviso inconsistent with it self , and repugnant to his meaning ; for he intended thereby to hinder the demising of some of his Lands : But by that construction of the Proviso , every part of his Land might be demised ; for doubtless , at some time or other , every part of it was demised , and probably by Records or other ancient Evidence , might appear so to be .

3. If this were the meaning of the Proviso , the word ( usually ) in it was to no purpose ; for it had been much clearer to say , That any Lands , at any time heretofore demis'd , should be demiseable for 21 years by Sir Peter Temple , which doubtless was not Sir Arthur's meaning , and consequently this Lease of Looffield not according to his meaning .

1. Now for the literal sense of the Proviso : Rolls , Title Power . f. 261. n. 11. 2 Jac. in Ban●o . If power be to make Leases for 3 lives , or 21 years , of Lands usually letten ; Land which hath been twice letten is within the Proviso , but not Land which hath been but once letten .

Therefore this Land of Looffield letten but once , 12 Eliz. is not within the Proviso .

But I insist not much upon this case , for the words usually demis'd may be taken in two senses : The one for the often farming or repeated Acts of leasing Lands , to which sense this Case doth reasonably extend .

But the other sense of Land usually demis'd , is for the common continuance of Land in lease , for that is usually demis'd ; and so Land leas'd for 500 years long since , is Land usually demis'd , that is , in lease , though it have not been more than once demis'd , which is the more receiv'd sense of the words , Land usually demis'd .

2. The meaning of the words , at any time , is various , and of contrary meaning . If it be asked by way of Question , Were you at any time at York ? It is the same as , Were you ever , or sometime at York ? So in the Question , Was this Land at any time in Lease ? is the same , as , Was it ever , or some time in Lease ?

But when the words , at any time , are not part of a Question , but of an Answer , they have a different and contrary meaning . As if it be asked , Where may I see or speak with John Stiles ? and it be answered , You may speak with him , or see him at any time at his House . There the words , at any time , signifie at all times , and not as in the question , at some time .

So when the words are used by way of a plain enunciation , and not as part of a Question or Answer ; As , You shall be welcome to my House at any time , signifie You shall be welcome at all times .

So in the present Case , if it-be made a Question , Was such Land heretofore at any time usually letten and set to Farm ? imports in the Question , Was this Land ever , or at some time heretofore ( how long ago soever ) usually let to Farm .

But by way of enunciation if it be said , This Land was usually let to Farm at any time heretofore ; it means , This Land was commonly , at all times heretofore , let to Farm .

So this Land was usually in Pasture at any time heretofore , signifies , this Land was always , or commonly in Pasture heretofore .

So , you may lease any Land heretofore letten to Farm at any time , usually , is the same with heretofore letten to Farm commonly at all times . And this Construction of the Proviso agrees both with the words and intention of Sir Arthur .

But what was not farmed at the time of this Proviso made , nor 20 years before , could not be said to be at any time before commonly Farmed ; for those 20 years was a time before , in which it was not farmed .

But to come closer , The Proviso is that Leases may be made for 21 years of any the Lands in the Deed , reserving the Rents thereupon reserved at the time of the Deed made , viz. 12 Jac.

Which necessarily implies , that the Land demiseable by that Proviso , must be Land which then was under Rent ; for where no Rent then was , the Rent then thereupon reserv'd could not be reserv'd . But Looffield had then no Rent upon it , for it was not let of 20 years before , nor then , and therefore was not demiseable by that Proviso .

The words ( or more ) will not at all help the Plaintiff , for the words ( more or less ) are words of relation ; the one of addition to what was before ; the other of diminution ; for ( more or less ) must relate to something positive in the kind before , and can never be a relation to nothing .

So ( more wages ) necessarily implies some before , ( more meat ) ( more drink ) ( more company ) and , in all expressions ( more ) denotes a relation to somewhat before of the kind ; and in the present Case , reserving ( more Rent ) must imply some before reserved . And therefore where none was at the time of the Deed made 12 Jac. there cannot , in any congruity of speech , more be reserved , or intended to be reserved .

Quaere , If the Record be mended in the point of finding the death of Sir Peter Temple , and when he died .

In this the Chief Justice delivered the Resolution of the whole Court .

Hill. 21 & 22 Car. II. Rot. 2259. C. B. Ralph Dixon Plaintiff , Harts . ss. versus Dean Harrison Defendant ; In a Replevin , Quare cepit Averia ipsius Radulphi , & ea detinuit contra vadios & plegios , &c.

Distress , 21 Maii , 21 Car. 2. THe Plaintiff declares , That the Defendant , 21 die Maii , 21 Regis nunc , at Sandridge , in a place called Fregmorfield , took three Cows of the Plaintiffs , and detain'd them against Pledges quousque , to his damage 40 l.

The Defendant , as Bailiff of Elizabeth Rooper , Widow , Samuel Hildersham Gent. and Mary his Wife , Michael Biddulph Esq ; and Frances his Wife , Humphrey Holden Esq ; and Theodosia his Wife , avows and justifies the Caption ; for that the place in quo , &c. contains a Rood of Land cum pertinentiis in Sandridge aforesaid .

That long before the Caption , Ralph Rowlett Knight , was seis'd of the Mannor of Sandridge in the said County , whereof the said place is and was parcel time out of mind .

Grant of the Rent , June 26 8 Eliz. That the said Sir Ralph , 26. June , 8 Eliz. at Sandridge aforesaid , by his Deed in writing under his Seal , produc'd in Court , thereby granted and confirmed to Henry Goodyeare then Esquire , and after Knight , and to the Heirs of his Body , a yearly Rent of 30 l. out of all his said Mannor , and other his Lands in Sandridge aforesaid , payable at the Feasts of St. Michael the Arch-angel , and the Annunciation .

The first payment at such of the said Feasts which should happen after the expiration , surrender , or forfeiture to be made after Sir Ralph Rowlett's death , of certain terms of years , of parcel of the Premisses made to one William Sherwood and Ralph Dean severally .

With Clause of Entry and Distress to Henry , and the Heirs of his Body , if the Rent were unpaid .

And that Sir Ralph gave the said Henry seisin of the said Rent , by payment of a peny , as appears by the Deed.

Rowletts death , 1 Sept. 33 Eliz. Sir Ralph Rowlett , after the First day of September , 33 Eliz: at Sandridge aforesaid , died .

That after the Second day of September , Terms expired Sept. 2. 33 Eliz. 33 Eliz. the said terms of years expired , whereby the said Henry became seis'd of the said Rent in tail .

That Henry had Issue the said Elizabeth and Mary , Hen. Good-year died 1. Octob. 33 Eliz. and one Anne , his Daughters and Coheirs , and died 1. Octob. 33 Eliz so seis'd .

That the said Coheirs , being seis'd of the said Rent , Mary married Samuel 1. May 1634. and Anne the same time married John Kingston . to them and the Heirs of their Bodies , the First of May , 1634. Mary married the said Samuel Hildersham , and Anne married one John Kingston , whereby the said Elizabeth and Samuel and Mary , in right of the said Mary , and John and Anne in right of Anne , were seis'd of the Rent .

December 25. 1635. Anne had Issue by John her Husband , Anne had Issue Frances and Theodofia , she and her Husband John died 1 Jan. 1635. the said Frances and Theodosia ; and John her Husband and Anne died 1. Januarii , 1635.

That thereby Elizabeth , Samuel , and Mary , in right of Mary , Frances , and Theodosia became seis'd of the Rent .

April the 10th . 1647. Frances married the said Biddulph , and Theodosia the said Humphrey Holden , whereby Elizabeth , Samuel and Mary , in right of Mary ; Biddulph and Frances , in right of Frances ; and Holden and Theodosia in right of Theodosia , became seis'd of the Rent .

And for 120 l. for four years arrear after the death of John and Anne , ending at the Feast of St. Michael , 1655. being unpaid at the time and place , &c. the Defendant , as their Bailiff , entred , and distrained the said Cows .

The Plaintiff demands Oyer of the Deed of Grant , and hath it in these words , &c.

And then the Plaintiff replies , that before the time of the Caption , that is , A die Paschae in quindecim dies , a Fine was levied in the Court of Common Pleas , in the One and twentieth of the King , before the Iustices there , &c. between Richard Harrison Esquire , and the Avowants of the said Rent , with Warranty to the said Richard and his Heirs .

And that this Fine was to the use of the Conizors and their Heirs , and demands Iudgment .

The Defendant thereupon demurrs .

WHERE the Law is known , and clear , though it be unequitable and inconvenient , the Iudges must determine as the Law is , without regarding the unequitableness or inconveniency .

Those defects , if they happen in the Law , can only be remedied by Parliament ; therefore we find many Statutes repealed , and Laws abrogated by Parliament , as inconvenient , which before such repeal or abrogation , were in the Courts of Law to be strictly observed .

But where the Law is doubtful , and not clear , the Iudges ought to interpret the Law to be as is most consonant to equity , and least inconvenient .

And for this reason , Littleton in many of his Cases , resolves the Law not to be that way which is inconvenient , which Sir Edward-Cook , in his Comment upon him , often observes ; and cites the places , Sect. 87.

In the present Case there are several Coparceners , whereof some have Husbands seis'd of a Rent Charge in tail : the Rent is behind , and they all levy a Fine of the Rent to the use of them and their Heirs .

If after the Fine levied , they are barr'd from distraining for the Rent arrear , before the Fine , is the Question ? It being agreed they can have no other remedy , because the Rent is in the reality , and still continuing .

If they cannot distrain , the Consequents are ,

1. That there is a manifest duty to them of a Rent , for which the Law gives no remedy , which makes in such case the having of right to a thing , and having none , not to differ : for where there is no right , no relief by Law can be expected ; and here , where there is right , the relief is as little , which is as great an absurdity as is possible .

2. It was neither the Intention of the Conizors , to remit this Arrear of Rent to the Tenant , nor the Tenants to expect it : nor could the Conizors remit it but by their words or intentions , or both ; nor did they do it by either .

3. It is both equitable in it self , and of publick convenience , that the Law should assist men to recover their due , when detain'd from them .

4. Men in time of Contagion , of Dearth , of War , may be occasioned to settle their Estates when they cannot reasonably expect payment of Rents from their Tenants for Lives , or others , and consequently not seasonably distrain them ; and it would be a general inconvenience in such case to lose all their Rents in Arrear . So as both in Equity and Conveniency the Law should be with the Avowants .

In the next place we must examine , Whether the Avowants , that is , the Conizors of the Fine , be clearly barr'd by Law to distrain for the Rent arreare before the Fine ? For it must be agreed , they have no other remedy by the Common Law , or otherwise : to which purpose I shall open some Premises , that my Conclusion may be better apprehended .

1. A privity is necessary by the Common Law to distrain and avow between the Distrainor and the Distrained , that the Tenant may know to whom the Rent or other Duty ought to be paid ; and likewise know a lawful distress from a tortious taking of his Cattel .

2. This privity is created by Attornment , either in Fact or in Law , by the Tenant to the Lord , to the Reversioner , to the Grantee of a Remainder , or of a Rent by Deed or by Fine : Litt. Sect. 579. For this Sir Edward Cooe upon the 579th . Section of Littleton , and in many other of his Sections .

The Conizee of a Fine before Attornment cannot distrain , because an Avowry is in liew of an Action , and thereto privity is requisite ; for the same cause he cannot have an Action of Waste , nor many other Actions there mentioned , and the Authorities cited ; and so is Littleton himself expresly , Litt. Sect. 580. Section 580.

Where a man by grant to himself , or by descent from his Ancestor , hath a Rent-charge , and might once lawfully distrain , and Avow for such Rent if Arrear , by due Attornment made to him or his Ancestor , he may still do so whenever the Rent is behind ; unless by Law that power be some way lost .

1. That power may be lost by extinguishment of the Rent , by a perpetual union of the tenancy to the rent , or rent to the tenancy , or in other manner , the Grantee having no Heir .

2. It may be lost for a time by Suspension , as by such union for a time , and after restored again .

3. It may be lost by a Grant of the Rent upon Condition , 7 H. 6.3 . Br. Extinguishment , p. 17. and upon performance or breach of the Condition restored again ; but the power of distraining is not in this Case lost by any of these ways .

4. It may be principally lost by a sufficient granting over , and transferring the Rent to another ; which way comes nearest to the Case in question .

And therefore I shall agree the Case so much insisted on , which is said to be agreed per Curiam , Andrew Ognell's Case , 4. Rep. f. 49. in Andrew Ognell's Case , in the fourth Rep. That if a man be seized of a Rent-service , or Rent-charge in Fee , and grant it over by his Deed to another and his Heirs , and the Tenant Attorn , such Grantor is without remedy for the Rent arrear before his Grant ; for distrain he cannot , and other remedy he hath not , because all privity between him and the Tenant is destroyed by the Attornment to the Grantee , and he hath no more right than any Stranger to come upon the Land , after such transferring over of the Rent .

I shall likewise agree another Case , That if such Grantee should regrant the same Rent back to the Grantor , either in fee , in tail , or for life , and the Tenant Attorn , as he must to this regrant , yet the first Grantor shall never be enabled to distrain for Arrears due to him before he granted over the Rent ; for now the privity between him and the Tenant begins but from the Attornment to the regrant , the former being absolutely destroyed , and the Tenant no more distrainable for the ancient Arrears than he was upon the creation of the Rent , for Arrears incurred before , till first attorn'd .

If the Case in question prove to be the same in effect with either of these Cases , then the reason of Law for these Cases must sway and determine the Case in question .

And I conceive that there is no likeness or parity between the Case in question , and either of those Cases , either for the fact of the Cases , or the reason of Law .

I shall therefore begin with comparing this Case with the first of those Cases .

1. In the first of those Cases , he that is seis'd of the Rent-charge , doth intend to transferr his Estate in the Rent to the Grantee , and it is accordingly actually transferr'd by the Tenants Attornment to the Grant .

2. The Grantee by his Grant and Attornment to it , becomes actually seis'd of the Rent , and may enjoy the benefit of it by perception of the Rent .

3. His Wife becomes dowable of it .

4. It is subject to Statutes , Recognizances , and Debts enter'd into by the Grantee , or due from him to the King .

5. It is possible to descend to his Heir .

6. It may be Arrear , and he hath a possibility to distrain and avow for it .

1. But in the Case in question , the Conizors of the Fine did never intend to transfer their Estate in the Rent to the Conizee , nor that any Attornment be made to him : What a man intends to pass to another , he intends to be without it himself , at least for some time , which is not in this Case .

2. The Conizee never becomes actually seiz'd of the Rent , and not only doth not , but never can enjoy the perception of it ; for there is no moment of time wherein the Conizors themselves are not actually in seisin of it , and consequently may distrain if it be in Arrear , and the Conizee can never have actually seisin , or possibility to have Attornment or distrain , his seisin being but a meer fiction , and an invented form of Conveyance only .

3. The Conizee's Wife is never dowable of it .

4. It is not subject to any Statutes , Recognizances , or Debts of the Conizee .

5. It is never possible to descend to his Heir , for it instantly vests in the Conizors .

6. It can never be Arrear to the Conizee , nor hath he ever a possibility to distrain for it .

To this purpose what is agreed in the Lord Cromwell's Case , L. Cromwell's Case , 2. Rep. f. 77. 2. Rep. is applicable ; Then it is to be consider'd what seisin Perkins had , who was the Conizee of a Fine in that Case ; and he had but a Seisin for an instant , and only to this purpose , to make a Render ; for his Wife shall not be endowed , nor the Land subject to his Statutes or Recognizances , f. 77.

Therefore that first Case cited out of the Report of Andrew Ognell's Case , which I admit to be good Law , hath no resemblance with the present Case , in any circumstance or consequent ; but had the Fine been to a third persons use , the consequents had been the same as in the Case cited out of Ognell's Case , not as to the Conizee , but as to that third person to whom the rent was intended .

To conclude then this first part ;

1. That whereof the Conizors were alwaies actually and separately seiz'd , the same was never by them transferr'd to the seisin of another : But of this Rent the Conizors were alwaies in actual seisin ; for there was no moment of time wherein they were not seis'd ; therefore this Rent was never transferr'd to the seisin of another , nor could any other , for any moment of time , have a separated seisin thereof ; for what was mine at all times , could be anothers at no time .

2. It is an impossibility in Law , that two men severally shall have several Rights and Fee-simples in possession in one and the same Land , Dyer 28 H. 8. f. 12. a. p. 51. simul & semel per Fitz-herbert , in the Argument of Bokenhams Case ; and the same impossibility is so to have of a Rent . Nor hath this relation to the learning of Instants in Digbie's Case , Coke 1. Rep. and Fitz-williams in the sixth Report .

That an old Use may be revoked , and a new rais'd in the same time , and an old possession ended , and a new begun ; this is usual in all transmutation of Estates and things also : For in nature , a new form introduc'd , doth in the same moment destroy the old , according to that , Generatio unius est corruptio alterius ; but a separate possession can never be in two at the same time not out of the one , and yet in the other , more than the same Body can be in two several places at the same time .

3. If a Feoffee to use of me and my Heirs , make a Feoffment to another without consideration to the use of me and my Heirs , notwithstanding there is a new Feoffment , the words of a use to me and my Heirs , Dyer 28 H. 8. f. 12. 6. per Baldwin Chief Justice . yet the use being the former use , viz. to me and my Heirs , this latter is no new use given to me , for I cannot have that use given which I had before ; for to give what I had before is no gift , as is well press'd by that Book .

And by the same necessity , where I have the possession before , a new possession cannot be really given me by the Statute of 27 H. 8. whose operation is properly to give to him which had not the possession , but only an use ; the possession which he wanted before to the use which he had before , in such manner as he hath the use .

But here the Statute cannot give the possession to the Conizors which they never wanted , nor the Conizee never had , ad aliquem Juris effectum , though perhaps fictitiously , and in order only to a form of Conveyance , which was not the end or intention of the Statute of Vses ; but an use invented after that might be made of the Statute , in order to a general form of Conveyance , by which the parties might execute their Intentions , wherein the Conizee is but an Instrument or Property to execute their purpose , as in Cromwells Case is said ; L. Cromwells c. 2. Rep. but the Statute brings the new uses rais'd out of a feign'd possession , and for no time , in the Conizee to the real possession , and for all times in the Conizors , which operates according to their intent to change their Estate , but not their possession .

Besides , it hath been admitted at the Bar , that if the Fine had been levied without consideration , and no uses express'd , the Conizors might then have distrained for the Arrear , because the uses were the same as before , which , if granted , it resolves the Question , for the Attornment and power to distrain follows the possession , and not the use : And if after the supposed possession of the Conisee , and his being seis'd to the old uses , when the Statute gives the possession back to the old uses , the Conizors might distrain for the Arrears before the Fine , as well as for those after , what hinders their distraining for them still ? For the possession which the Statute gives to the old uses , is as new a possession as that it gives to the new uses , and the privity is the same in both Cases in regard of the Tenant .

And it is common experience , that a Fine levied without consideration or use expressed , Sir Moyle Finch's Case , 6th . Rep. f. 68. b. is to the use of the Conizor and his Heirs , who may have an action of waste after the Fine , for waste committed before , as well as he could before the Fine . The instant possession of the Conizee notwithstanding which , differs not from this Case .

The next enquiry is , What affinity this Case hath with the second Case propos'd , viz. That if one seiz'd of a Rent in Fee , grants it over to a Stranger and his Heirs , and the Tenant attorns ; if such Grantee regrants the Rent back to the Grantor and his Heirs , there must be a new Attorment of the Tenant to the Regrant ; for the privity by the first Attornment was totally destroyed , and all Arrears of Rent lost when the Tenant attorn'd to the Grantee , which Case I take to be clear Law , for by the Regrant a total new Estate is gain'd in the Rent , and thereby he who hath the Rent as if he never had any former Estate in it .

And in the present Case , the Estates after the Fine are wholly new , and other Estates in the Conizors ( to which the Tenant never attorn'd ) than the Conizors had before the Fine in these Respects :

1. Before the Fine , the Husbands had but Estates in right of their Wives , and now they are Jointenants with their Wives .

2. The Wives , before the Fine had Estates of Inheritance absolute , and now they are Iointenants with their Husbands , and among themselves where Survivorship obtains .

3. The Women were Coparceners before , and the Husbands in right of their Wives , and they are now all Jointenants .

4. Two of the Coparceners had the Inheritance of entire third parts , and the two other of one intire third part ; and now the four Women and three Husbands are equally Iointenants , which are Estates much differing from the Estates they had before the Fine .

I must agree , That where persons seiz'd of a Rent-charge , by granting it over with Attornment of the Tenant , have totally departed from their Estate , and after retake , either such an Estate as they had before , or a differing Estate in the Rent , they must have a new Attornment , and the former privity is wholly destroyed , and consequently no Arrears can be distrain'd for , by reason of the first privity which is not .

But in this Case the Conizors never were , for any moment of time , out of possession of their first Estate , nor destroyed the first privity by any new Attornment , which either was , or possibly could be ; but only some have enlarg'd their Estate , some diminish't it , others alter'd it , without destroying the old privity , which may stand well with the Rules of Law ; and consequently they may distrain for Rent arrears , and avow lawfully by reason of the first privity still continuing .

And I must observe in this Cases , that the Avowants , after the Fine , are the same persons avowing as before . 2. That after the Fine , there is but one common Avowry as before . 3. That there is no new person after the Fine , between whom and the Tenant there was not a privity before the Fine .

That a mans Estate in a Rent-charge , may be enlarg'd , diminish'd , or otherwise alter'd , and no new Attornment , or privity requisite to such alteration of Estate .

Litt. Sect. 549. A man seiz'd of a Rent-service or Rent-charge in Fee , grants the Rent to another for life , and the Tenant attorns after the Grantor confirms the Estate of the Grantee in Fee-tail , or Fee-simple , this Confirmation is good , to enlarge his Estate according to the words of the Confirmation .

Here no new Attornment to this new Estate , which now is Fee-tail or Fee-simple , in the Rent which was before , but an Estate for life is requisite , else the Confirmation were not good ; but by Littleton it is good to enlarge the Estate .

2. Sir Edward Cook in his Comment upon this Case , saith , It is to be observ'd , that to the grant of the Estate for life , Littleton doth put an Attornment , because it is requisite ; but to the Confirmation to enlarge the Grantees Estate , there is none necessary , and therefore he puts none .

No man can doubt in this Case , that if Rent had been in Arrear to the Grantee for life , when his Estate was enlarg'd , needing no new Attornment or privity , he did not thereby lose the Rent-arrear .

If two Jointenants in Fee let the Land for life , Litt. Sect. 574 reserving a Rent to them and their Heirs , if one release to the other and his Heirs , this Release is good ; and he to whom it was made shall have the Rent of Tenant for life only , and a Writ of Waste without Attornment to such Release , for the privity which once was between the Tenant for life and them in the Reversion .

So is it if one Jointenant confirms the Land to the other and his Heirs . Litt. Sect. 523.

The Law must necessarily be the same , if a man seis'd of a Rent-service or Rent-charge in Fee , grant it to two and their Heirs , or to two and the Heirs of one of them , and the Tenant attorn ; if after , one Jointenant release to the other , or he which hath the Inheritance to him which hath but an Estate for life , and to his Heirs ; the person to whom such Release is made , shall thereby have a Fee-simple , whereas before he had but for life in the Rent , and an Estate absolute , which before was joynt , without any new Attornment , for the reason of the former Case , because there was once a privity between the Tenant and them , which was never destroyed .

So is it if there be Lessee for life , the Remainder for life , he , Litt. Sect. 573 in the Reversion releaseth to him in the Remainder , and to his Heirs , all his right ; he in the Remainder hath thereby a Fee , and shall have a Writ of Waste , and likewise the Rent of Tenant for life , if any were , without any Attornment of the Tenant for life , for the former privity between them .

Enlargement of Estate by descent .

If a man seiz'd of a Rent-charge in Fee , grant it for life to A. and the Tenant attorns ; after the Grantor grants the Reversion of this Rent to the Father of A. and his Heirs , to whom A. attorns ( as in this Case he may by Sir Edward Coke's Comment ) and after the Father dies , Coke's Litt. Sect. 556. and this Reversion descends upon A. whereby he hath a Fee-simple in the Rent , no new Attornment is requisite for this enlargement of Estate .

Diminishing of Estate .

A man seis'd of a Rent-charge in Fee , grants this Rent for Seven years , to commence from the time of his death , the Remainder in Fee , and the Tenant attorns in the life time of the Grantor , 2. Rep. Sir Rowland Hayward's Case . as he must by the Resolution in Sir Rowland Hayward's Case , 2. Rep. here the Grantor hath diminish't his Estate in the Rent , from a Fee-simple to an Estate for life ; yet it cannot be doubted but he may distrain for his Rent-arrear .

And so is the Law , where a man seis'd in Fee of a Rent , for good consideration Covenants to stand seiz'd for life , with Remainder over .

Vpon these grounds upon Littleton , If a man seis'd of a Rent-charge in Fee , grant it over to a Feme sole for a term of years , the Tenant attorns , and she take Husband ; and during the term the Grantor confirm the Rent to the Husband and Wife for their lives , or in Fee ; they become Jointenants for life , or in Fee of this Rent , and need no new Attornment : This Case is proved by a Case in Littleton , Sect.

Hence it is manifest , that where a man hath a Rent for which he may once lawfully distrain by Attornment of the Tenant ( which gives sufficient privity to avow ) such Grantee or Possessor of the Rent may enlarge , or change his Estate in the Rent to a greater or lesser , or different Estate , and needs no new Attornment or privity ; therefore to distrain and avow for such Rent whenever Arrear , unless he become dispossess'd of the Rent and the privity , to distrain and avow thereby , be destroyed by a Right gained by some other to have the Rent , and a Right in the Tenant to pay it to some other .

9 H. 6. f. 43. Br. Avoury . p. 123. To this purpose there is a Case , If a man be seis'd of Land in Jure uxoris , in Fee , and leaseth the Land for years , reserving Rent , his Wife dies without having had any Issue by him , whereby he is no Tenant by the Curtesie , but his Estate is determined ; yet he may avow for the Rent before the Heir hath made his actual Entry . This Case is not adjudg'd , but it is much the better Opinion of the Book .

Objections .

The Conizors are in possession since the Fine of another Estate Obj. 1 than they were before the Fine , that is , according to the uses of the Fine , which they could not be without an Alienation of the Rent to the Conizee by the Fine , to enable the raising of that new use out of the Estate transferr'd to the Conizee by the Fine .

That by such Alienation the former privity between the Conizors and the Tenant , which they had as Parceners by Attornment to the first grant of the Rent , was destroy'd ; and therefore they cannot now distrain but for Rent-arrear , since the Fine , by the possession given them by the Statute of 27 H. 8. to which no Attornment is necessary , and not for any Arrears due before upon the old privity .

As specious as this Reason seems , it may be answer'd , Answ. That the Conizors had alwaies an actual and separate seisin , and possession of the Rent , and were at no time without it ; therefore the Conizee could have no several and separate possession of it at any time ; for it is not possible that two severally can possess the same thing , simul & semel , for the same thing can no more be in two separate possessions at the same time civilly , then the same thing can be in two separate places at the same time naturally .

Is not the Reason then of equal force , that the Conizors were at no time out of possession and seisin of this Rent , and consequently never lost the power to distrain for it .

As to say the Conizee had sometime a separate possession of the Rent from the Conizors , out of which the new uses were raised , and therefore the privity to distrain for the old Arrears was for sometime destroy'd .

Besides , if the old privity be destroy'd , the greatest absurdity imaginable in Law follows , That a man hath a right to a thing for which the Law gives him no remedy ; which is in truth as great an absurdity , as to say , the having of right , in law , and having no right , are in effect the same .

When as on the other side , the loss of the Arrears , and the Conizors right to them , is a Consequent deduc'd from the destruction of the old privity between the Conizors and the Tenant by an imaginary , and not a real possession of the Rent by the Conizee .

Obj. 2 Ognell's Case 4. Rep. Nor will it serve to say , as is insinuated in Ognell's Case , that the Conizors have dispens'd with their own right in the Arrears , and therefore such Arrears in strictness of Law , when the Fine is levied , are not due at all , but remitted , and so no absurdity to have no remedy for a thing not due .

1. By this reason a Law should be equally good that provides no remedy for performance of Contracts , as that which doth ; because all Contracts , for performance of which the Law gives no remedy , shall in Iudgment of Law be dispens'd with , releas'd , discharg'd .

2. By this reason a Rent-seck , before seisin had of it , shall be no duty , because the Law gives no Remedy before seisin : And consequently such Rent or such Arrears , as in the present Case being paid by the Tenant , may be recover'd again , as the proper mony of the Tenant , deliver'd to the Grantee of the Rent without any consideration , upon an indebitatus Assumpsit , the Law creating a promise .

So might a Debt paid after six years elaps'd , for which , by the Statute of Limitations , there was no remedy , yet that doth not cease to be a Debt , as if it had been released .

By like reason , if a man hath by accident had his Bonds burn'd or destroy'd , whereby he had no remedy to recover the Debt by Law , it should cease to be a Debt at all .

32 H. 8. c. 37. To this the words of the Statute of 32 H. 8. c. 37. may be added , which gives remedy for recovery of such Debts by Executors as were due to the Testators , and for which there was no remedy before , viz. That the Tenants did retain in their hands such Arrearages of Rents , whereby the Executors could not therewith pay the Debts , and perform the will of the Testator , &c. and surely no Arrearages could be of Rent , if they were remitted in Law ; nor was it fit the Executors should pay the Debts , or perform the Testators Will with that which was no part of the Testators Estate , either in possession , or as a credit .

If a common Recovery had been to uses of Lordships and Mannors before the Statute of 27. the Recoverors had no remedy to make the Tenants attorn ( for a quid Juris clamat would not lye upon a Recovery ) before the Statute of 7 H. 8. 7 H. 8. c. 4. c. 4. which did give remedy , and which saith , That such refusal of Attornment was to the great offence of their Conscience refusing , and not only to the disinheritance of the Recoverors , but often to the breaking of the last Wills of the Recoverees , and also to the disinheritance of Husbands , Wives , and others to whose use the Recovery was had . By which it is plain , that duties for which there is no remedy often in Law , are not therefore dispenced with , and discharged by the party , as is superficially said in Ognell's Case .

That the Conizee of a Rent granted by Fine to uses cannot have any actual seisin , or be in possession of such Rent , since the Statute of 27 H. 8. cap. 10.

Before the Statute of 27 H. 8 If a Feoffment had been to uses and no Livery given , or given by one Attorney when it ought to have been by two , the uses in such Deed of Feoffment could never rise ; so if a Reversion had been granted to uses , and no Attornment to the Grantee , no use could rise , because there was no sufficient Estate in possession . And when the Statute of Vses came , it could have no operation when the Estates in possession were not sufficient .

So if an Estate for life had been granted to the use of a man and his Heirs , an Estate in Fee could not rise out of it by the Statute of 27 H. 8. c. 10.

And if before the Statute , a Reversion had been granted by Fine to Vses , and no quid Juris clamat brought , though the Land pass'd by the Fine , yet the Tenant could not be distrain'd , nor a Writ of Waste brought against him until he attorn'd ; and when the Statute came to transferr the use into the possession , it could be but into such a possession as the Conizee had by the Fine , without power to distrain , or bring Waste , for the words of the Statute are ,

That the Estate , Title , Right and Possession that was in such person or persons , that were , or hereafter shall be seis'd of any Lands or Hereditaments , to the use , confidence , or trust of any person or persons , be from henceforth adjudged to be in him or them that have , or hereafter shall have such use , confidence , or trust , &c.

And therefore if before the Statute of 27. a Fine had been levied of a Rent-charge to uses , as this Case is , if before Attornment to , or seisin had by the Conizee , the Statute had come and brought the possession of the Rent to the use , the Cestuy que use could have had the Rent but as a Rent-seck , for which he could not distrain for want of Attornment , nor have an Assise for want of seisin , for the Conizee had no other possession of the Rent ; but after Attornment and seisin to or by Cestuy que use , his possession perhaps became perfected .

But since the Statute , if a Fine be levied of a Reversion of Lands to uses , or of a Rent , because the use and possession by the Statute come instantly together , and the Conizee of the Fine hath no time possible to bring , either a quid Juris clamat , or a quem redditum reddit , Sir Moyl Finch's Case , Coke 6. f. 68. a for , or to receive an Attornment to , perfect his possession . It was resolv'd in Sir Moyl Finch's Case , that the Cestuy use should , notwithstanding distrain , and have the same advantage , as if the Conizees possession had been perfected by Attornment and seisin .

The intent of the Statute of 27. which was to bring together the possession and the use , when the use was to one or more persons , and the possession in one or more other separate persons , was soon after the Statute wholly declined , upon what good construction or inference I know not .

For now the use ( by the name of trust ) which were one and the same before the Statute , remains separately in some persons , and the possession separately in others , as it did before the Statute , and are not brought together but by Decree in Chancery , or the voluntary Conveyance of the possessor of the Land , to Cestuy que trust .

So as now the principal use of the Statute of 27. especially upon Fines levied to uses , is not to bring together a possession and use , which at no time were separate the one from the other , but to introduce a general form of Conveyance , by which the Conizors of the Fine , who are as Donors in the Case , may execute their intents and purposes at pleasure , either by transferring their Estates to Strangers , by enlarging , diminishing , or altering them , to and among themselves , at their pleasure , without observing that rigour and strictness of Law for the possession of the Conizee , as was requisite before the Statute .

Which I have sufficiently evidenc'd by shewing that the Attornment of the Lessee to the Conizee or Reversioner , or of the Tenant to him , as Grantee of the Rent-charge , is now dispenc'd with , which was not before the Statute .

For if that were now requisite , the Conizors could not only not distrain for the Rent due before the Fine , but not for the Rent due since the Fine ; nor doth the Statute help the matter , because the Cestuy que use is in possession of the Rent by the Statute , and therefore needs no Attornment , for that is true , when the Conizee hath a perfect possession , but without Attornment the Conizee had no perfect possession impowring him to distrain ; and therefore the Statute can bring no perfect possession to the uses to that end .

And so Sir Edward Coke agrees the Law , Cok. Litt. f. 307. Sect. 55● . that since Littleton wrote , If the Conizee of a Fine before Attornment by Deed indented and inroll'd , bargains and sells a Seigniory to another , the Bargainee shall not distrain , because the Conizee , that is , the Bargainor , could not for want of Attornment .

But on the other side , a man perfectly seis'd of a Seigniory Rent , Reversion , or Remainder , bargains and sells by Deed indented and inroll'd , according to the Statute , the Bargainee shall distrain without Attornment by vertue of the Statute .

And if a Fine be now levied to a man to the use of a third person , the third person shall distrain without any Attornment made , not only to himself , by reason of the Statute , but to the Conizee , by the Resolution in Sir Moyle Finch his Case , for otherwise the Fine were to little purpose .

Which Case , though it make an Attornment not necessary , where it is impossible to be had , that the Conveyance might not be useless in effect , and an intended right to be de novo introduc'd , altogether hindred .

Shall it therefore destroy an old Attornment , which cannot but be had , and is still in being , for no other use or end , but to deprive the Conizors of a Rent and former Right justly due , to introduce a general inconvenience upon all that have granted Leases for lives , and are occasioned to settle their Estates ?

And there is great difference between a Fine levied of a Reversion , or of a Rent-charge , to the use of a third person , and to the use of the Conizors ; for a third person can never distrain , unless either an Attornment were to the Conizee , which is impossible , because no possession continues in him , so as to receive an Attornment ; or unless the construction of the Statute ( according to Sir Moyle Finch his Case ) to make the Conveyance of effect to Cestuy que use , made the Attornment , because it could not be had , not necessary , which is a great strain and violence upon the true reason of Law .

That a Conveyance , which in reason could not be good without Attornment , should be sufficient , because it could not have an Attornment , which was necessary to make it sufficient .

And this practice hath been frequent since the Statute of Uses ; Sir Will . Pelham's Case . as in making a Recovery against his nature to be a forfeiture , because taken as a Common Conveyance : To make Vses declared by Indenture between the parties , made a year after the Recovery , to be the Vses of the Recovery , Downan's Case , 9. Rep. with such Limitations as are mentioned in Downan's Case , the 9. Rep.

L. Cromwell's Case , 2. Rep. f. 72. b. To make a Rent arise out of the Estate of Cestuy que use upon a Recovery , which was to arise out of the Estate of the Recoveror and his possession . which is a principal point in Cromwell's Case , and resolv'd ; because by the intention of the parties , the Cestuy que use was to pay the Rent .

14 Eliz. Harwell versus Lucas . Moore 's Rep. f. 99. a. n. 243. Bracebridge's Case is eminent to this purpose . Tho. Bracebridge , seis'd of the Mannor of Kingbury in Com. Warwick , made a Lease for One and twenty years of Birchin Close , parcel del Mannor to Moore ; and another Lease of the same Close for Six and twenty years , to commence at the end of the first Lease , to one Curteis , rendring Rent , and after made a Feoffment of the Mannor , and all other his Lands , to the use of the Feoffees and their Heirs and Assigns , upon Condition that if they paid not 10000 l. within fifteen daies , to the said Tho. Bracebridge or his Assigns , they should stand seiz'd to the use of Bracebridge and Joyce his Wife ; the Remainder to Thomas their second Son in tail , with divers Remainders over : The Remainder to the Right Heirs of Thomas the Father ; Livery was made of the Land in possession , and not of Birchin Close , and no Attornment ; the Feoffees paid not 10000 l. whereby Bracebridge the Father became seis'd , and the first Tenant for years attorn'd to him . Adjudg'd .

1. That by Livery of the Mannor , Birchin Close did not pass to the Feoffees without Attornment .

2. That the Attornment of the first Lessee was sufficient .

Moore f. 99. n. 243. 3. Though the use limited to the Feoffees and their Heirs , was determined before the Attornment , yet the Attornment was good to the contingent use , upon not paying the mony .

In the Resolution of this Case , Wild , Archer , and Tyrrell , Justices , were for the Plaintiff , and Vaughan , Chief Justice , for the Defendant .

Trin. 21. Car. II. C. B. Rot. 1714. The King Plaintiff , in a Quare Impedit , per Galfridum Palmer Atturnatum suum Generalem . Robert Bishop of Worcester , Thomas Jervis Esquire , and John Hunckley Clerk , Defendants .

THE King counts , That Queen Elizabeth was seis'd of the Advowson of the Church of Norfield , with the Chappel of Coston in gross , in Fee in Jure Coronae , and presented one James White her Clerk , who was admitted , instituted and inducted .

That from the said Queen , the Advowson of the said Church , with the said Chappel , descended to King James , and from him to King Charles the First , and from him to his Majesty that now is , who being seis'd thereof , the said Church , with the Chappel , became void by the death of the said James White , and therefore it belongs of right to him to present , and the Defendants disturbe him , to his damage of 200 l. which the said Attorney is ready to verifie for the King .

The Defendants plead severally , and first the Bishop , that he claims nothing in the said Church , and the Advowson but as Ordinary .

The Defendant Jervis saith , That long before the said Presentation suppos'd to be made by the late Queen , one Richard Jervis Esquire , was seis'd of the Mannor of Norfield , with the Appurtenances in Com. praedicto , to which the Advowson , Ecclesiae praedictae tunc pertinuit , & adhuc pertinet in his Demesne as of Fee , and so seis'd , the said Church became void by the death of one Henry Squire then last Incumbent of the said Church , and so continued for two years , whereby the said late Queen , praetextu lapsus temporis , in default of the Patron , Ordinary , and Metropolitan , Ecclesiae praedictae pro tempore existentis dictae nuper Reginae devolutae by her Prerogative ; afterward , that is , tertio die Decembris , 28 Eliz. by her Letters Patents under the Great Seal , bearing date the said year and day at Westminster , to the said Church , then being void , presented the said James White , who was admitted , instituted , and inducted , tempore pacis , &c.

That the said James White being so Rector of the said Church , and the said Richard Jervis seis'd of the said Mannor to which the said Advowson pertained , &c. the said Richard after , at Norfield aforesaid , died so seis'd .

After whose death , the same descended to one Thomas Jervis Esquire , as Son and Heir of Richard , and from him descended to one Sir Thomas Jervis Knight , who enter'd , and was seis'd , and so seis'd the said Sir Thomas Jervis , 30. March . 14 Car. 1. March the 30th . 14 Car. 1. by his Deed in writing , seal'd at Norfield aforesaid , granted to one Phineas White the Advowson of the said Church , for the first and next avoidance only , whereby the said Phineas was possessed for the next avoidance of the said Advowson , and so possessed , the said Church became void by the death of the said James White , which was the first and next avoidance after the said Grant to Phineas .

Phineas , by virtue of his said Grant , presented one Timothy White his Clerk , who was thereupon admitted , instituted , and inducted , tempore pacis tempore Car. 1.

The said Timothy being Rector , and the said Sir Thomas Jervis seis'd as aforesaid , The said Sir Thomas died seis'd at Norfield aforesaid ; and the said Mannor , with the Appurtenances , descended to Thomas the Defendant , as his Son and Heir , who enter'd , and was , and yet is seis'd , and being so seis'd , the said Church became void by the death of the said Timothy White , and the said Thomas Jervis , the Defendant , presented the other Defendant , John Hunckley , who was admitted , instituted , and inducted , long before the Writ purchas'd .

Then Traverseth Absque hoc , That the late Queen was seis'd of the said Advowson , with the Chappel of Coston aforesaid in gross , and as of Fee , Jure Coronae suae , Et hoc paratus est verificare , and demands Judgment si Actio .

John Hunckley the Incumbent taking by protestation , That the late Queen was not seis'd , nor presented , as by the Declaration is suppos'd ; for Plea saith , That Richard Jervis was seis'd of the Mannor of Norfield , with the Appurtenances , in Com. praedicto , and the Advowson of the said Church appertain'd thereto , and pleads the same Plea verbatim , as to the Queens Presentation of White , and all other things , as Jervis the Patron pleaded , and the presentation of himself , and that he was , by the presentation of the other Defendant Jervis , admitted , instituted , and inducted into the said Church , Septemb. 15. 1660. and Traverseth .

Absque hoc , that the King was seis'd of the said Advowson and Chappel in Gross , as of Fee , Et hoc paratus est verificare , and demands Judgment .

The Attorney General replies , and as to the Bishop , claiming nothing , but as Ordinary , Demands Judgment , and a Writ to the said Bishop , and hath it with a Cesset Executio , until the Plea determined between the King and the other Defendants .

And as to the Plea of the said Thomas Jervis the Patron , the Attorney maintains the Seisin of the late Queen , and of King James , King Charles the First , and of the King that now is , of the said Advowson of the said Church and Chappel , as by the Count before is declared .

And that the said Phineas White of his own wrong , by usurpation upon the late King Charles the First to the said Church , then void by the death of the said James White , presented the said Timothy White , and Traverseth .

Absque hoc , That the Advowson of the said Church was , or is , pertaining to the Mannor of Norfield , and demand Judgment , and a Writ to the Bishop .

And as to the Plea of the Incumbent , the Attorney replies as before to the Patrons Plea , That the late Queen , King James , King Charles the First , and the King that now is , were seis'd of the said Advowson in gross , as of Fee ; and that the said Phineas White presented the said Timothy , by usurpation upon King Charles the First , and Traverseth the appendancy of the Advowson , Ecclesiae praedicta , to the Mannor of Norfield .

The Patron Jervis rejoyns and demurs upon the Attorney's Replication , as insufficient , and assigns for Cause , that the Attorney hath Travers'd matter not traversable , and that the Traverse ought to have been omitted out of the Replication , as also , that the said Plea is repugnant in it self , and wants form .

And John Hunckley the Incumbent rejoyns , That the said Advowson is pertaining to the said Mannor , as he alledged in his Plea before , Et de hoc ponit se super Patriam , and the Attorney similiter .

Imperfections in the Pleading .

1. Vpon this Quare Impedit brought , there is a good Title to present surmis'd for the King , but no more , and there is much difference between a Title appearing for the King , and suppos'd only .

2. The Defendant by his Plea in Barr , hath not well Travers'd the King's Title , for it is travers'd but in part , for only the Seisin of the Advowson in the Queen is travers'd , whereas properly the Seisin and Presentation of the Queen , by reason of her Seisin , ought to have been traversed : by Absque hoc , That the Queen was seis'd of the Advowson in gross , and presented .

3. The Seisin of the Advowson which makes not a Title alone , nor is not either traversable or inquirable by the tender of a demy mark in the King's Case , Fitz. N. Br. f. 31. Letter D. Littl. Coke 294. b. in droit d'Advowson , is not traversable neither alone in a Quare Impedit . But no Demurrer being thereupon , nor no Issue taken upon that Traverse , no more shall be said of it .

4. The King may alledge Seisin , without alledging any time ( as Sir Edward Coke saith ) in a droit d'Advowson .

26 H. 8. f. 4. a. Hob. Digby & Fitz. herb . f. 102. and Moore and Newmans Case , f. 80. and 103. Rice and Harrisons Case , Yelverton f. 211. 5. The Defendants Traverse was not necessary , because he had confess'd and avoided the Queens Presentation , by saying it was by Lapse , if the Defendant had rested upon avoiding the Queens Presentation .

6. The Attorney General ought to have maintain'd his Count , and travers'd the Queens Presentation by Lapse .

7. He doth not do so , but deserts making the Kings Title appear , and falls upon the Plaintiffs Title , that the Advowson was not appendant .

8. He offers a double Issue , that the Presentation of Phineas White was by Vsurpation , and the Advowson not appendant to the Mannor .

Certain Premisses .

If a man Counts or Declares in a Quare Impedit , That he , or his Ancestors , or such from whom he claims , were seis'd of the Advowson of the Church , but declares of no Presentation made by him or them , such Count or Declaration is not good ; and the Defendant may Demurr upon it , so is the express Book following .

1. A man shall not have a Quare Impedit , Fitzh . Nat. Br. f. 33. Letter H. if he cannot alledge a Presentation in himself , or in his Ancestor , or in another person , through whom he claims the Advowson , and that in his Count , unless it be in a special Case . Then puts that special Case , As if a man at this day , by the Kings Licence , makes a Parochial Church , or other Chantry , which shall be presentable , if he be disturbed to present to it , he shall have a Quare Impedit , without alledging any presentment in any person , and shall Count upon the special Matter .

And the Law in this , is the same in Case of the King with a Common Person , by all the Books and Presidents in the Books of Entry .

To this add the Lord Hobarts Judgment , which is alwaies accurate for the true reason of the Law . Know that though it be true , that a Presentation may make a Fee without more ( as a Presentation by Vsurpation doth ) that you never have a Declaration in a Quare Impedit , L. Hobart Digby's Case , f. 101. that the Plaintiff did present the last Incumbent without more ; but you declare that the Plaintiff was seis'd in Fee , and presented , or else lay the Fee-simple in some other , and then bring down the Advowson to the Plaintiff , either in Fee , or some other estate .

The reason is , That the Presentment alone is militant and indifferent , and may be in such a Title as may prove , that this new Avoidance is the Defendants , and therefore you must lay the Case so , as by the Title you make , the Presentation past joyn'd to your Title , shall prove that this Presentation is likewise yours , as well as the last .

Whence it follows , That to Count of an Estate and Seisin without a Presentation , or of a Presentation without an Estate , are equally vicious and naught , be it in the Case of the King , or of a Common Person , and was never in Example or President .

2. A second necessary Premise is this , and is both natural and manifest ; When you will recover any thing from me , it is not enough for you to destroy my Title , but you must prove your own better than mine .

For it is not rational to conclude , you have no right to this , and therefore I have ; for without a better right melior est conditio possident is regularly .

Hobar 1. f. 162. Colt & Glovers Case ad sinem paginae . 3. Every Defendant may plead in a Quare Impedit the General Issue , which is ne disturba pas , because that Plea doth but defend the wrong wherewith he stands charg'd , and leaves the Plaintiffs Title , not only uncontroverted , but in effect confess'd ; and the Plaintiff may , upon that Plea , presently pray a Writ to the Bishop , or at his choice maintain the Disturbance for damages .

Hob. Digby versus Fitzherbert f. 103. 104. But if a man will leave the General Issue , and controvert the Plaintiffs Title , he must then enable himself , by some Title of his own , to do it ; but yet that is not the principal part of his Plea , but a formal Inducement only : And therefore there is no sense , if you will quarrel my possession , and I to avoid your Title effectually , do induce that with a Title of my own , that you shall fly upon my Title , and forsake your own ; for you must recover by your own strength , and not by my weakness .

The Lord Hobart goes further , in giving the reason of this course of Pleading , in Colt and Glovers Case , in the place before cited , of this form of pleading in Law , there is one reason common to other Actions , wherein Title is contain'd to the Land in question specially , which is , that the Tenant shall never be receiv'd to Counter-plead , but he must make to himself , by his Plea , a Title to the Land , and so avoid the Plaintiffs Title alledg'd by Traverse , or confessing and avoiding — But in the Quare Impedit there is a further reason of it , for therein both Plaintiff and Defendant are Actors one against another ; and therefore the Defendant may have a Writ to the Bishop as well as the Plaintiff , which he cannot have without a Title appearing to the Court : And so are the Presidents , Rastal L. Intratio f. 484. a.b. when a Quare Impedit is brought against the Patron for disturbance of his Clerk , not being in possession .

The Case in brief , and the Question upon it .

Vpon the Record , as it hath been open'd , and the pleading therein between the King and the Patron , upon which all the Question ariseth first , I shall not make the Question to be , Whether there may be a Traverse taken upon a Traverse ( though that Question be in truth in the Case ) for that is a Question rather upon terms of Art , than a Questio Forensis , and rising upon the naked fact of a Case depending in Iudgment .

I shall therefore make the Question upon this Case , such as nakedly it is , without involving it in any difficulty of terms .

The King brings a Quare Impedit , and declares , That Queen Elizabeth was seis'd of the Advowson of the Church of Norfield in gross , as of Fee , and presented , and derives the Advowson to himself , and the Church became void by the death of the Queens Presentee ; and he is disturbed to present by the Defendant Jervis .

The Defendant saith , That before the Queen presented , R. Jervis , his Ancestor , was seis'd in Fee of the Mannor of Norfield , to which the Advowson of this Church is appendant , that it became void by the death of one Squire , and continued so for two years , and that the Queen then presented White her Clerk by lapse : That the Mannor and Advowson descended from Richard to Thomas Jervis , from Thomas to Sir Thomas Jervis , who granted the next avoidance to one Phineas White , who presented , upon the death of James White , one Timothy White , who was instituted and inducted , and then derives the Mannor and Advowson to himself ; and that the Church becoming void , upon the death of the said Timothy , he presented the other Defendant Hunckley , and Traverseth the Queens Seisin of the Advowson in gross .

The Law in Case of a Common Person .

If a Common Person brings a Quare Impedit , and counts his Title to present , and that he is disturbed : The Defendant , to counter-plead the Plaintiffs Title , makes ( as he must ) a Title to himself to present , and confesses and avoids , or Traverseth the Plaintiffs Title .

1. The Plaintiff shall never desert his own Title , and by falling upon , and controverting the weakness only of the Defendants Title , ever recover or obtain a Writ to the Bishop , though the Defendants Title do not appear to the Court to be sufficient for the unanswerable Reasons given by the Lord Hobart in the first place .

2. If you will recover any thing from another man , it is not enough for you to destroy his Title , but you must prove your own better than his .

3. There is no sense , if you will quarrel my Possession or Right , and I , to avoid your Title effectually , either by Traversing it , which is denying , or confessing and avoiding it , do induce that with a Title of mine own , that you shall fly upon my Title to impeach it , and forsake your own , as I said before .

4. Though I should , being Plaintiff , make it appear to the Court , That the Defendants Title is not good , but no way making it appear that my own Title is good , what inducement can the Court have to judge for me , and against the Defendant , when no more right appears for the one than the other ; and not only so , but no right appears for either ? For in such Case sure , Melior est Conditio possidentis , I ought not to be sued by him I have not wrong'd ; and he which hath no right , can suffer no wrong .

5. It is to no end the Plaintiff should set forth any Title at all , if he be not to make it good ; but it should serve his turn only to impeach the Defendants Title , and conclude so unreasonably , That if I can make it appear the Defendant hath not a good Title , therefore I have and must have Iudgment for me .

How far , in the King's Case , the Law differs not from a Common Persons Case .

1. And where the King's Title , in a Quare Impedit brought by him , appears to be no more than a bare suggestion , the King can no more than a Common Person ( and for the same reasons ) forsake his own Title , and endeavour only the destroying of the Defendants Title ; for the weakning of the Defendants Title without more , can no more make a good Title to the King , than it can to a Common Person .

2. If the King , or his Predecessor , hath presented by reason of Wardship , of Lapse , of the Temporalties of a Bishop , in his hands , of Outlawry , and in many other Cases , when the Church becomes void next after the Wards Age , and suing his Livery , after the death of him presented by Lapse , Restitution of the Temporalties , and Reversal of the Outlawry .

In all these Cases , if the King brings a Quare Impedit , and counts that he was seised of the Advowson in gross , and presented . When the true Patron shall confess his Presentation , and avoid it by shewing in their several Cases , That his Presentation was in right of the Ward , by Lapse , by reason of Outlawry , or of Temporalties , being in his hands ; The King shall desert his own Title , and controvert the Defendants respective Titles , in whose Right he did formerly present ; and if their Title happen to appear not good , recover the second Presentation against those manifest Rules of Law deliver'd .

3. If this should be Law generally , then though the King have no Title to present , nor pretend to any , for it differs not , not to pretend at all , and not to be obliged to make good the Title pretended ; it were a more compendious way , when any Patron presented , That the King should , by Scire Facias , compel him to set forth his Title , and Demurr upon it , or Traverse it , and recover the Presentation , if the Patrons Title were any way defective .

Wherein the Law differs in the Kings Case from a Common Persons Case .

But it must be agreed there are Cases in which the King may desert his own Title , and not joyn Issue upon the Defendants Traversing the King's Title , or avoiding it , but Traverse the Title made by the Defendant in his Barr , which is directly taking a Traverse upon a Traverse , which regularly a Common Person cannot do ; nor I think in any Case , Long 5 E. 4. in Waste for cutting so many Trees , and selling them . f. 100. b. but where the first Traverse tender'd by the Defendant is not material to the Action brought , as in the Case of Waste in Long , 5. E. 4. Hob. Digby & Fitz-herbert's Case , & Woodroffe & Codford's Case , 37 Eliz. Hob. f. 105.

13 E. 4. f. 8. a. 3 H. 7. f. 3. Stamford Praerogative , f. 64. b. The King counting of a Title to himself by Office found , or by other matter of Record , which is another thing than only surmising a Title , as in the Case at Barr , may chuse to maintain his own Title found by Office , and Traversed by the Defendant , or otherwise appearing of Record , and take a Traverse to the Title made by the Defendant .

The Reason is manifest ; for the Office of it self is a Title appearing for the King , and he shall never lose his Possession , having a Title , but where the Defendants Title doth appear a better . But what is this that the King should Relinquish his own Title only surmis'd , and controvert the Defendants , So is 13 E. 4. f. 8. and many other Books . whose Title , though it should appear naught , leaves no Title in the King : But when an Office is found , or a Title for the King appears by other matter of Record , if the Defendant have no Title , the King hath one by his Office , or other Record .

Some Books , prima facie , seem to make for that Opinion , That the King may generally desert his own Title , and take a Traverse to the Defendants .

Br. Prerogative , pl. 65. 7 E. 6. Brook Title Prerogative , pl. 65 Where a man Traverseth the Office of the King , and makes to himself a Title ( ut oportet ) Traversing the Title of the King contain'd in the Office , the King may chuse to maintain his own Title , or to Traverse the Title alledg'd ; for the King is not bound to stand to the first Traverse which tenders an Issue , but may Traverse the matter of the Plea of his Adversary : For this no ancient Book is cited .

But dicitur Hillar. 7 E. 6. quod sic utitur , in an Information put by the Subject for the King , in Scaccario , that where the Defendant pleads a Barr , and Traverseth the Information , the King may Traverse the matter of the Barr , if he will , 7 E. 6. and is not bound to maintain the matter contain'd in the Absque hoc .

This Case , as appears in the first part of it , was in the Case of an Office , and therefore makes not at all against my Diversity : In the latter part the Assertion seems more general , as if the King could in any Case desert to maintain the matter of his Information , and Traverse the Barr of the Defendant ; but there is nothing in this part of the Case positive enough to over-rule my Difference , and is no more but Sic utitur ut dicitur in Scaccario , which may be a mistaken Report .

The other Case is likewise in Brook , Br. Travers per sans ceo . p. 369. 38 H. 8. but no ancient Book-Case cited , but only 38 H. 8. and no more .

An Information in the Chequer , the Defendant pleads , and Traverseth a material point in the Information , whereupon they are at Issue ; there the King cannot waive this Issue , as he may in other Cases , where the King alone is party , without an Informer ut supra per Attornatum Regis , & alios legis peritos .

This Case seems likewise to conclude , That when the Information is only for the King , and a material point Traversed , upon which Issue is joyn'd , that the King is not bound to that Issue , but may take another . This dis-affirms the former Case , when the Information is by an Informer , the King must maintain his Information .

Note the close of this Case , Ut supra per Attornatum Regis , & alios legis peritos , I shall give the Case here mentioned in this ut supra , which will , I think , determine the Question , and clearly establish the Law according to the Difference taken .

That Case is likewise in Br. and cited to be as in 34 H. 8. whereof there is no Year-book , neither some four years before the last Case I mentioned . It is thus :

Br. Prerogative p. 116. 34 H. 8. Nota by Whorhood Attornatum Regis , & alios , When an Information is put into the Chequer upon a penal Statute , and the Defendant makes a Barr , and Traverseth , that there the King cannot wave such Issue tender'd , and Traverse the former matter of the Plea , as he can upon Traverse of an Office , and the like , when the King is sole party , and intitled by matter of Record ; for upon the Information there is no Office found before , and also a Subject is party with the King for a moiety , Quod nota bene .

Here it is most apparent , That upon an Information , when the King hath no Title by matter of Record , as he hath upon Office found , the King cannot waive the Issue tender'd upon the first Traverse , though the Information be in his own name , which disaffirms the second Case in that point : And for the Supernumerary reason , That the King is not the sole party in the Information , it is but frivolous , and without weight ; but the stress is where the King is sole party , and intitled by matter of Record .

I shall add another Authority out of Stamford Praerogative .

If the King be once seis'd , his Highness shall retain against all others who have not Title , nothwithstanding it be found also that the King had no Title , but that the other had possession before him , 37 Ass. pl. 11. as appeareth in 37. Ass. p. 35. which is pl. 11. where it was found , That neither the King nor the party had Title , and yet adjudg'd that the King should retain ; for the Office that finds the King to have a Right or Title to enter , Stamford Praerogative f. 62. b. makes ever the King a good Title , though the Office be false , &c. and therefore no man shall Traverse the Office , unless he make himself a Title ; and if he cannot prove his Title to be true , although he be able to prove his Traverse to be true , yet this Traverse will not serve him .

Stamford Prerogative , f. 64. b. It is to be noted , That the King hath a Prerogative which a Common Person hath not ; for his Highness may choose whether he will maintain the Office , or Traverse the Title of the party , and so take Traverse upon Traverse .

If the King take Issue upon a Traverse to an Office , he cannot in another Term change his Issue , by Traversing the Defendants Title , for then he might do it infinitely .

But the King may take Issue , and after Demurr ; 13 E. 4. expresly , and several other Books . 28 H. 6. f. 2. a. or first Demurr , and after take Issue , or he may vary his Declaration ; for in these Cases , as to the Right , all things remain , and are as they were at first ; but this ought to be done in the same Term , otherwise the King might change without limit , and tye the Defendant to perpetual Attendance .

Judgment pro Defendente .

Hill. 21 & 22. Car. II. C. B. Rot. 606. Thomas Rowe Plaintiff , and Robert Huntington Defendant , in a Plea of Trespass and Ejectment .

THE Plaintiff declares , That Thomas Wise , 1. April , 21 Car. 2. at Hooknorton in the County of Oxford , by his Indenture produc'd , dated the said day and year , demis'd to the said Thomas Rowe the Mannor of Hooknorton , with the Appurtenances , 4 Messuages , 100 Acres of Land , 50 Acres of Meadow , 400 Acres of Pasture , and 50 Acres of Wood , with the Appurtenances , in Hooknorton aforesaid . As also the Rectory and Vicaridge of Hooknorton , and the Tithes of Grain , Hay , and Wool , renewing in Hooknorton aforesaid ; To have and to hold the Premisses from the Feast of the Annunciation of the Virgin , then last past , to the end and term of Seven years then next ensuing .

That by virtue thereof , the said Thomas Rowe the Plaintiff , into the said Mannor and Tenements enter'd , and of the said Rectory , Vicaridge , and Tithes , was possessed .

That the said Robert Huntington the Defendant , the said First of April , with Force and Arms , into the said Mannor , Rectory , Vicaridge and Tithes , entred , and him Ejected against the Peace , to his great damage , and whereby he is endamaged 100 l.

The Defendant Huntington pleads not Culpable . And thereupon Issue is Ioyn'd .

The Jury give a Special Verdict , That as to the Trespass and Ejectment in the said Mannor and Tenements , and in the said Rectory , Vicaridge , and Tithes aforesaid , excepting 200 Acres of Pasture , parcel of the said Mannor of Hooknorton , That the Defendant Huntington is not Culpable . And as to the said 200 Acres , they say , that long before the said Trespass and Ejectment ,

That is , the 14th . day of October , 1. Mar. one Robert , then Bishop of Oxford , was seis'd in his Demesne , as of Fee in Right of his Bishoprick of the said Mannor , whereof the said 200 Acres are parcel , and so seis'd the said 14th . of October , 1 Mariae , at Hooknorton aforesaid , by his Indenture of Demise , seal'd with his Episcopal Seal , Dated the said day and year , and shew'd in Evidence to the Jury , made between the said Bishop of the one part , and John Croker of Hooknorton Esq ; of the other part , for Considerations in the said Indenture of Demise mentioned , had demis'd , and to farm lett , to the said Croker ; Among other things , the said Mannor with the Appurtenances , whereof the said 200 Acres are parcel , To have and to hold , to the said Croker and his Assigns , from the end and expiration , prioris Dimissionis in eadem Indentur . Mentionat . for and during the term of Ninety years then next following .

The tenor of which Indenture of Demise follows , in haec verba :

This Indenture made the Fourteenth day of October , 1 Mariae , &c. Between the said Bishop and the said John Croker , &c witnesseth , That where the said Bishop , by the name of the Reverend Father in God , Robert King , Abbot of Tame , and Commendatory of the late Monastery of Oseney , in the County of Oxford , and the Covent of the same , by their Deed Indented , Dated 6. April , 29 Hen. 8. with the Consent of their whole Chapter , Have demis'd , and to farm lett ,

All that their Mansion or Farm of Hooknorton , with the Appurtenances in the said County , and all the Mansion and Farm Demesne , Lands , Meadows , Leasowes and Pastures , with all Commodities and Profits to the said Mannor belonging or appertaining , and the customary works of all the Tenants , not granted nor remitted before the Date of the Deed ; And the Parsonage of Hooknorton , and all Lands , Tenements , Meadows , Tithe Corn and Grain , Hay and Wool , and all Profits to the said Parsonage belonging ; And also the Vicaridge of Hooknorton aforesaid , with the Appurtenances ; And all Lands , Tithes , Profits , to the said Vicaridge belonging .

And also a Pasture called Prestfield , with the Appurtenances in Hooknorton aforesaid ; And all Commons of Sheep , call'd by the name of their Founders Flock ; And the Hay of a Meadow , call'd Brown-mead , with the customary works thereto pertaining ; And the Tithe and Duty of a Mead , call'd Hay-mead in Hooknorton aforesaid .

Except and reserved to the said Abbot and Covent , and their Successors , All Tenants and Tenantries , then , or after to be set by Copy of Court-Roll , All Fines , Reliefs , Escheats , Herriots , Amerciaments , Pains , Forfeits , and all Perquisites of Courts Barons and Leets .

To have and to hold the said Farm or Mannor , and all other the Premisses , with the Appurtenances , Except before excepted to the said Croker , his Executors and Assigns , from the Feast of the Annunciation of our Lady last past before the Date of the said Deed , Indented for the term of Eighty years , rendring to the said Abbot , Covent , and their Successors yearly , during the said term .

For the said Mannor and Farm 9 l. For the said Parsonage 22 l. 2 s. For the Common of Sheep , Hay and Custom-works of Brown-Mead 5 l. For the Wool 12 l. For Prest-field 6 l. 13 s. 4 d. For the Vicaridge 6 l. 13 s. 4 d. of lawful mony , &c. at the Feasts of St. Michael the Arch-angel , the Annunciation of our Lady , by equal portions , As by the same Deed Indented , amongst divers other Covenants and Grants , more plainly appeareth .

And where also , as the said Bishop , by his other Deed Indented , Dated 8. October , 1 Edw. 6. hath demis'd and to farm lett , unto the said John Croker , all that his Mannor of Hooknorton aforesaid , with all Messuages , Tofts , Cottages , Orchards , Curtilages , Lands , Tenements , Meadows , Leasowes , Pastures , Feedings , Commons , waste Grounds , Woods , Underwoods , Waters , Mills , Courts-Leets , Fines , Herriots , Amerciaments , Franchises , Liberties , Rents , Reversions , Services , and all other Hereditaments whatsoever they be , set , lying , and being in Hooknorton aforesaid , in the said County , with the Appurtenances .

Except certain Lands and Tenements in the said Town in the Tenure of the said John Croker , for certain years then enduring .

To have and to hold , All the said Mannor of Hooknorton , and all other the Premisses , with the Appurtenances , Except before excepted to the said John Croker and his Assigns , from the Feast of St. Michael the Arch-angel last past , before the Date of the said latter Deed Indented , to the full end of the term of Ninety years from thence next ensuing .

Rendring to the said Bishop and his Successors yearly , during the said term , Eleven pounds , four shillings , and nine pence , at the Feasts of the Annunciation and St. Michael the Arch-angel , by equal portions , as by the said latter Deed , among other Covenants and Grants , more plainly appears .

The Reversion of all which Premisses are in the said Bishop , and to him and his Successors do belong , as in Right of his Church .

Now witnesseth , That the said Bishop hath demis'd , Ind. 1 Mar. and to Farm lett , and by these Presents doth demise , &c. to the said John Croker , All the said Mannor and Farm of Hooknorton , together with all Messuages , &c. And all and singular other the Premisses , with the Appurtenances , in the said several Indentures specified and contain'd .

To have and to hold the said Premisses contain'd in the said first Indenture , to the said John Croker , his Executors and Assigns , from the end , expiration , and determination of the said term specified in the said first Indenture , unto the end and term of Ninety years next ensuing , yielding therefore yearly to the said Bishop and his Successors , for the said Premisses , specified in the said first Indenture , such and like Rents as in the said first Indenture are reserv'd , at the same daies and times ; and

To have and to hold , All the Premisses specified in the said latter Indenture , from the end , expiration , and determination of the said term specified in the said latter Indenture , until the end and term of Ninety years then next ensuing : Rendring yearly for the Premisses in the said latter Indenture specified , such and like Rent as is reserv'd by the said latter Indenture , and at the same days and times .

Then follows a Clause of Distress if the Rent be behind for a Month.

And if the said several yearly Rents reserved by these Indentures , or any of them be unpaid in part , or in all , by the space of one quarter of a year after any the said Feasts , at which the same ought to be paid , and be lawfully demanded , and no sufficient Distress upon the Premisses , whereupon the same is reserved to be found ; Then to be lawful for the said Bishop , and his Successors , into such of the Premisses , whereupon such Rents being behind , is , or are reserved , to re-enter , and to have as in their former estate .

And the said Jurors further say , That the aforesaid Indenture of Demise afterwards , the Tenth of May , Anno 1 Mar. aforesaid , by the then Dean and Chapter of Oxford , under their Common Seal , was confirm'd , and find the tenor of the Confirmation in haec verba .

They further find , That the said Two hundred Acres of Pasture , at the time of making the said Indenture , and at the time of the Trespass and Ejectment , were , and yet are parcel of the said Mannor of Hooknorton .

They further find , That the Rent for all the said demis'd Premisses , reserv'd by the said Indenture for one whole half year , ended at the Feast of Saint Michael the Arch-angel , 1643. was behind and unpaid ; and that Robert , late Bishop of Oxford , the Nine and twentieth and Thirtieth Day of December , 1643. into the Parsonage House then , and by the Space of Forty or Fifty years before , reputed and call'd the Mannor-house ; And that he then , at the said Parsonage-house , by the space of One hour next before the Sun-setting of both the said two daies , remain'd and continued until , and by the space of One hour after Sun-setting of both daies , demanding , and then did demand the Rent for the half of the year aforesaid .

They further say , That there was no sufficient Distress upon the Premisses at the time of the demand of the said Rent thereupon ; And that the said Bishop , the said Thirtieth Day of December , 1643. aforesaid , into the said Premisses enter'd .

They further say , That all the Right , State , and Title , term of Years , and Interest of , and in the Mannor , Tenements , Rectory , and other the said Premisses , by virtue of the said Indenture of Demise by the said late Bishop , as aforesaid , granted to the said John Croker , by mean Assignments came to the said Thomas Wise .

That by virtue of the said several Assignments , the said . Thomas Wise afterwards , the Fourth of January , 1667. into the Premisses enter'd , and was possessed for the Residue of the term of years , prout Lex postulat . That he so possessed , afterwards the said First Day of April , 21 Car. 2. at Hooknorton aforesaid , demised to the said Thomas Rowe the said Mannor and Tenements , Rectory and Vicaridge whereof the said Two hundred Acres are parcel .

To have and to hold , to the said Rowe and his Assigns , from the Feast of the Annunciation last past , for the term of Seven years then next ensuing : That by virtue thereof , the said Rowe enter'd , and was possessed , until the said Robert Huntington , the said First of April , 21 of the King , by Force and Arms , by the command of the foresaid Robert , late Bishop of Oxford , into the said Two hundred Acres , upon the Possession of the said Thomas Rowe , to him demised by the said Wise , as aforesaid , for the said term , not yet past , enter'd and Ejected him . But whether upon the whole matter , the said Robert be Culpable of the said Trespass and Ejectment , they refer to the Court.

By this Verdict , in the recited Indenture , if any such were , of 29 H. 8. the Farm of Hooknorton , and the Mannor of Hooknorton , were the same thing ; and the Mannor known and demis'd by the name of the Farm , as well as the Farm by name of the Mannor . The Mannor of Hooknorton being call'd the Farm of Hooknorton , because it was lett to Farm , and rented out ; and the Farm called the Mannor , because it had the Requisits of a Mannor , viz. Demesne & Services .

Therefore where it is recited in the Deed 1 Mar. That the Abbot and Covent of Osney , had by their Deed of 29 H. 8. demis'd to John Croker , All that their Farm of Hooknorton , it was the same , as if it had been the Mannor of Hooknorton .

1. For that the next words are , And all that Mansion Demesne , Lands , Meadows , Leasowes , and Pastures to the said Mannor belonging , and no Mannor is named before , but the Farm which was known to be the Mannor .

2. The Habendum of the Premisses demised , is , To have and to hold the said Farm or Mannor of Hooknorton , which also shews they were the same .

3. In the render of the Rent , it is yielding and paying for the said Mannor and Farm Nine pounds .

4. By the Demise of 1. Mar. subsequent , the said Mannor or Farm is demis'd .

And the 200 Acres in question , being found to be parcel of the said Mannor , consequently they are recited to be demis'd by that Indenture suppos'd of 29 H. 8. But the Jury find not the Mannor and Farm to be the same .

The next thing to be noted is , That by that recited Indenture of 29 H. 8. if any such were , several Rents were reserved upon several particulars , and not one intire Rent upon the whole , namely 9 l. upon the Mannor or Farm ; Another Rent upon the Parsonage , another on the Vicaridge ; and so upon several other particulars .

And by the Lease of 1 Mariae , it is yielding and paying such , and the like Rents , in the Plural Number , as are reserved by the said first Indenture . So as the Rents were several in the first Indenture , by the meaning of that of 1 Mar.

And yielding and paying such and like Rent , as is reserv'd by the latter Indenture , for the Premisses therein contain'd . Here it is such Rent , in the singular number , as is reserv'd , not as are reserved , as in the former .

Then in the Clause of Re-entry for Non-payment , it is that the Re-entry should be into such of the Premisses , whereupon such Rent being behind was reserv'd , therefore not into all the Premisses .

Whence it follows , That there being several Rents , several Demands were respectively to be made before Re-entry , as well for those reserv'd in the first Indenture , as for that in the second Indenture recited .

And it being found , That the Demand made by the Bishop at the Parsonage-house in Forty three , was for the half years Rent reserved of all the Premisses demis'd by the Indenture of 1 Mar. it follows , That more Rent was demanded than was payable in any one place , consequently the Demand not good , nor the Re-entry pursuing it ; and thus far the Case is clear against the Defendant : For the Lease of 1 Mar. could not be avoided by that Re-entry , in all , nor in part , if the Leases of 29 H. 8. and 1 E. 6. were well and sufficiently found by the Jury to have been made .

Note , The Jury finding that the Rent reserved for all the Premisses , was behind for half a year , ending at Michaelmas , 1643. not expressing the Sum of the Rent , is no more than to find , That no Rent was paid for the said half year .

And their finding , That the Bishop did demand the said half years Rent , finding no Sum by him demanded , is no more than to find , That he demanded such Rent as was due for the said half year . So as notwithstanding the Juries finding , That no Rent was paid for the said half year , and their finding of the Bishop's demanding of what was due for the said half year ; It doth not therefore follow , That they find any Rent to be reserv'd by the said Lease of 1. Mar. or that there was a Demand of any Rent admitted to be so reserv'd .

But if the Leases of 29 H. 8. and 1 E. 6. be not well and sufficiently found by the Jury to have been made ; The Consequent then is , That in Law there are no such Leases ; for de non apparentibus , & non existentibus eadem est ratio ad omnem juris effectum .

And then it follows , That the Lease of 1 Mar. of all the Premisses specified in the Indenture of 29 H. 8. and of all specified in the Indenture of 1 E. 6. for Ninety years Habendum , from the respective Expirations of the terms specified , and under the respective Rents reserv'd by those Indentures , will be void as to the terms intended to be granted , and the Rents reserv'd , because the beginning of the terms and particulars of the Rents can be known , but from the Demises 29 H. 8. and 1 E. 6. when no such Demises are , because the Jury hath found no such .

For this the Case of 3 E. 6. reported by the Lord Brooks , in his Title of Leases , N. 62. is clear , and in several Cases since adjudg'd , is admitted for good Law .

The Case is , Br. tit . Leases , N. 66. 3 E. 6. If a man Leases Land for certain years to J. S. Habendum post dimissionem inde factam to J. N. finitam , and J. N. hath no Lease of the Land , the Lease to J. S. shall commence immediately for the term of years granted him .

So in our Case , the Lease of 1 Mar. of the Mannor and other the Premisses granted to Croker for Ninety years , Habendum , as to some particulars , from the expiration of a former Lease granted 29 H. 8. And as to other particulars , from the expiration of a Lease granted 1 E. 6. when no such Leases were granted , because not found to be granted . Therefore the Lease of 1 Mar. for Ninety years , shall commence immediately from the Sealing , and consequently ended about the 21 or 22 of King Charles the First .

And then the Defendant Huntington's Entry , the First of April , 21 Car. 2. by command of the Bishop , was lawful , the term of Ninety years granted 1 Mar. and then beginning , being long before expired .

And by the same Reason , If a Lease be granted to J. S. for Forty years , to commence after the expiration of the term granted to J. N. and under the same Rents as are reserv'd in the Demise to J. N. ( who in truth had no Demise ) The term of Forty years to J. S. shall commence immediately , because the number of years are express'd , but without any Rent ; because the reservation of such Rent as was reserv'd in the Demise to J. N. who had no Demise , must be no Reservation of Rent .

And consequently in the present Case , though the Lease for Ninety years , which number of years is express'd , be a good Lease , to commence immediately from 1 Mar. yet the Reservation of the Rent being such thereupon as was reserv'd by the Leases of 29 H. 8. and 1 E. 6. when in truth there are no such Leases , must be a void Reservation upon the Lease of 1 Mar. because there is no expression of any Rent , but that which was reserved in Leases , which are not all Ad omnem Juris effectum in this Case , because they are not found .

So as the sole Question is reduc'd to this , Whether by this Verdict the Iury have well and sufficiently found any Leases 29 H. 8. and 1 E. 6. or either of them were made to Croker ?

1. And it seems clear , That the Jury have not in express terms , and positively found , either of those Leases to have been made , for then they must have found that the Abbot Commendatory of Osney , and the Covent there , had made such Lease to Croker , dated 29 H. 8. &c. and in like manner that the said Abbot being then Bishop of Oxford , had made 1. of E. 6. a Lease to Croker for such a term of years , and under such Rents and Reservations , &c. but there is no such finding in this Verdict .

2. The second Inquiry is , Whether the Iury having found ( as they have ) that the then Bishop of Oxford did by Indenture , dated 1. Mar. Lease to Croker the Mannor of Hooknorton for Ninety years , which Indenture they find in haec verba , in which there is a recital of a Lease made 29 H. 8. and of another 1 E. 6. to the said Croker ( but neither in haec verba ) be not a good and sufficient finding of such recited Leases , to have been actually made , because recited in the Lease of 1 Mar. which is expresly found to have been made .

But certainly , it can never follow that the reciting of the Deeds of 29 H. 8. and 1 E. 6. to have been made in the Deed of 1 Mar. which is expresly found to have been made , is a sufficient finding of those two other Deeds to have been actually , & re vera made ; for the strange consequence of that would be ,

1. That no Deed really seal'd and deliver'd between the parties to it , and so agreed to be , could make recital of a thing which was false , or which was not according to the recital , which is a sensless Assertion .

2. By that reason all Fables recited , nay , all sorts of recited lies , at least ( all such as had possibility of being true ) would become truths , whether orally recited , or in Books , Letters , or other Writings ; for the difference of recital any other way , and recital in a Deed , will not vary the Case , because the recital in a Deed may as equally be false , as in other waies of recital ; unless a man think that any false recital in a Deed shall be a conclusion against the parties , and such as claim from them , which I shall anon make appear to be false .

3. It were perniciously dangerous , That Recitals in a true Deed , that other Deeds were seal'd and deliver'd , should make such Deeds recited in Law , to be true Deeds ; for then by feign'd Recitals of other Deeds in a true Deed , men might make what Titles they pleas'd .

4. It would be worse than actual forging of such recited Deeds , because the forgery of Deeds is punishable , and thereby such Deeds made ineffectual ; but false Recitals are neither punishable , nor the effect of them destroy'd , if they should be admitted : But this is so clear , that I shall say no more in it .

If then those two Deeds be neither directly found , nor the finding a Recital of such Deeds in the Deed of 1 Mariae , be a sufficient finding of them , it remains , if they be found at all , they must be found by Inference and Argument only . And as for that , though in a general Verdict , finding the point in Issue , by way of Argument , for the Plaintiff or Defendant , be never permitted , not though the Argument be necessary and concluding .

As in an Action of Debt brought for 20 l. the Defendant pleaded payment , and issue thereupon . The Iury found that the Defendant debet the 20 l. this was no good Verdict ; for the matter in issue , payment or not , was not directly found , but by way of Argument , though the Argument was necessary there , Rolls 693. Barry & Phillips , N. 30. that the Defendant did not pay the 20 l. which he did owe , for he could not both pay it , and yet owe it . And this Case was affirmed in Error .

Yet I confess in a Special Verdict , That strictness is not rigidly observ'd , where the Iury find only the matter of Fact , when in a general Verdict they find both Fact and Law , that is , the whole matter in issue ; yet in a special Verdict they must find the Case in Fact clear , and without Equivocation to common intent , else they find nothing whereupon the Court can determine what the Law is .

There are no words in this Special Verdict that can be strain'd to a finding of the Deeds of 29 H. 8. and 1 E. 6. by way of Inference and Collection , but these .

They find that Robert , Bishop of Oxford , by Indenture dated the 14th . of Octob. 1 Mar. demis'd to Croker the Mannor of Hooknorton , with the Appurtenances , inter alia Habendum , to the said Croker , and his Assigns , from the end and expiration , prioris dimissionis in eadem Indentur . mentionat . for and during the term of 90 years then next following : The tenor of which Indenture follows in haec verba , and so find the Indenture of 1 Mar. verbatim , but not the tenor dictae prioris dimissionis , for if they had so found , it had varied the Case .

Which finding only of the Deed of 1. Mariae , verbatim , and that thereby the Mannor of Hooknorton was demised for Ninety years , a fine prioris dimissionis in the Indenture of 1. Mariae mentioned , it cannot be made out by any rational Inference , That they have clearly found such a former Demise , or otherwise than as recited to have been by the Indenture of 1. Mariae .

For to find that such a Letter was written , or such a Book made by J. S. is not to find that all things , or any thing contain'd or mention'd in that Letter or Book , are , or is true .

No more finding a certain Deed , as that of 1 Mariae , to be seal'd and deliver'd by J.S. is not a finding that every thing mentioned or recited in that Deed , is true .

The Context of the Verdict explain'd .

I find it conceiv'd by some , That by the words of the Verdict , Habendum à fine prioris dimissionis in Indentura praedict. mentionat . the Iury have found two things .

The first from the words Habendum à fine prioris dimissionis , That there was a former Demise from the Expiration of which the term granted 1 Mariae begins .

The second from the words In Indentura praedict. mentionat . That such former Demise is mentioned in the Indenture 1 Mar.

And thence conclude , That a former Demise , mentioned in the Indenture of 1 Mar. is by the Iury found to have been actually made : And consequently the sense of the words of the Verdict , and Iury's meaning must be , as if they had been Habendum , from the Expiration of a former Demise , and which former Demise is mentioned in the Indenture of 1 Mar.

But surely there is a clear difference between the Iuries finding a former Demise to be , and their finding a former Demise mentioned to be : For a former Demise may be found mentioned to be , which notwithstanding never was .

The words therefore of the Verdict , genuinely read and expounded , are , Habendum from the Expiration of a former Demise ( not which positively was ) but Habendum from the Expiration of a former Demise mentioned in the Indenture of 1 Mar. to be .

But a Demise may be mentioned in the Indenture of 1 Mar. to be , which yet never was .

And then the meaning of the words and Iury will evidently be Habendum , from the Expiration of a former demise which the Indenture of 1 Mar. mentions , recites , or saith to be formerly made .

And by this the Jury do not find , That any former demise , mention'd in the Indenture of 1 Mar. was really made .

I must agree , That as a Witness may prove the Contents of a Deed or Will , so may a Jury find them , the Deed or Will it self not being found in haec verba .

But if a Jury , by their Verdict , shall take upon them to collect the Contents of a Deed , and yet by the same Verdict find that Deed in haec verba , the Court is not to regard the Collection they have made of the Substance of the Deed , but the Deed it self .

As for instance , If a demise should be made to J. S. for a certain term of years , Habendum , from the day of the making the demise , and the Jury should find the Deed made to J. S. for the term Habendum from the making of the demise , Cujus quidem Indent . fact . to J. S. tenor sequitur in haec verba .

By this Verdict , it both appear'd what Collection the Jury made in their Iudgment of the Habendum , of the Deed to J. S. and also what the Deed it self syllabically was , which varied from what the Jury conceiv'd it to be ; for the Habendum in the Deed appears to be from the day of making of the demise ; but the Jury collected it to be from the making . Here the Court shall not regard the Collection by the Jury , but the Deed it self , as to the Commencement of the Term.

1. So in the present Case , the Jury finding , That the Bishop of Oxford , by his Indenture of 1 Mar. demis'd the Mannor of Hooknorton Habendum , from the Expiration of a former demise therein mention'd , for Ninety years , and then setting forth the Indenture verbatim ; is not a finding at large ; and as if no lease verbatim , were found that the Bishop made a lease for Ninety years , to begin from the Expiration of a former demise , made 29 H. 8 or 1 E. 6. for a certain term , but is a Collection of the Substance , as they conceiv'd of the Deed of 1. Mar which immediately they find in haec verba .

And consequently , the Deed it self being syllabically found , the Court is not to regard their Collection of the purport of it .

2. Another Reason is , That if those words in the Verdict , Habendum from the end of a former Demise mentioned in the said Indenture , had been omitted , and they had only found the Bishop had Seal'd and Executed the Indenture , 1 Mariae , to Croker , Cujus quidem Indent . tenor sequitur in haec verba , &c. all that is pretended to be found by this Verdict , had been as fully , and more clearly found , by finding the Indenture of 1 Mar. only .

For finding that Indenture in haec verba , they had found that the Bishop had demis'd the Mannor of Hooknorton , Habendum , from the Expiration of a former Demise therein mentioned for Ninety years ; which is all they have now found . Therefore the finding by way of redundance , over and besides finding the Deed it self , what was equally found in finding the Deed only , is not to be regarded , but as over-doing and impertinent .

3. Besides , such a construction of the Verdict makes it absolutely equivocal and uncertain ; for if the words , Habendum à fine prioris dimissionis in Indentura predict . mentionat . be but their Summary Collection of what the Indenture 1 Mar. contains , then it is but finding a recital of a former Demise ; but if otherwise , it is finding a former Demise really and positively , which do toto coelo differre , and confound the Iudgment of the Court.

4. Put the Case any other person , having seen the Deed of 1 Mar. should be asked , What the effect of it was ? his Answer would be , as the Jury have found , That it was a Demise by the Bishop of Oxford to Croker , of the Mannor of Hooknorton , and other things Habendum for Ninety years , from the Expiration of a former lease mentioned in that Demise .

But such Answer did not assert , That there was actually such a former Demise , as is mentioned in that Deed of 1 Mar.

Why then must the Jury , asserting but the same thing in the same words , be strain'd to assert more , viz. That there actually was such a former Demise as is recited in the Indenture 1 Mariae ?

5. Either this Habendum à fine prioris dimissionis in the Indenture of 1. Mariae , said to be mentioned , is intended by the Jury to be the Habendum of the Deed of 1 Mariae , or not ; if the Habendum of that Deed , then nothing is found by it , but what is found by finding the Deed it self of 1 Mariae , and then it is Habendum à fine dimissionis of a Deed only recited in that of 1 Mariae , and no more ; but if not , and that by finding this Habendum , more be found than by finding the Deed of 1 Mariae barely , then two Habendums of the same thing are found for the Deed of 1 Mar.

6. Beyond all this , if the Juries finding that the then Bishop of Oxford , by his Indenture 1 Mariae , did , inter alia , demise to Croker the Mannor of Hooknorton , Habendum à fine prioris dimissionis in Indentura praedict. mentionat . shall be ( as is contended ) an absolute and positive finding of a former Demise made , to whose expiration the Indenture 1 Mariae referrs , it must be either the demise 29 H. 8. or that of 1 E. 6. for no other are mentioned in the Indenture 1 Mar. and it can be but a finding of one of them ; for the words , à fine prioris dimissionis in Indentur . praedict. mentionat . cannot possibly extend to both .

Be it then understood the Demise 1 E. 6. for in that the Mannor is clearly named ; the Consequence must be , That the Deed of 1 Mar. which is an intire lease , as well of the Mannor , as of the Vicaridge , Parsonage , and of other things under several Rents , for Ninety years , commencing , as to the Mannor , from the Expiration of the suppos'd Demise 1 E. 6. shall be a good lease for Ninety years thence forwards , because that recited Demise is also suppos'd to be positively found by the Jury , by those words of their Verdict .

But as to the Vicaridge , Parsonage , and other things , and the Rents thereupon reserv'd , which are demis'd by the Indenture of 1 Mar. for Ninety years , to commence from the Expiration of the other recited Demise , suppos'd in 29 H. 8. the lease of 1 Mar. must commence immediately from the Date , because the Jury have not found that recited Demise positively , but only as recited , and therefore not found it to be a real Demise , and consequently the lease of 1 Mariae , as to those particulars , referring the term to commence from the Expiration of a term granted 29 H. 8. not in esse , because not found , must begin from 1. Mar. which , doubtless , the Jury never intended .

But now for Authority , I will resume the Case formerly cited of 3 E. 6. in the Lord Brook . If A. makes a Lease to B. Habendum for Forty years , from the expiration of a former Lease made of the Premises to J. N. and this be found occasionally , by special Verdict , as our Case is ; but the Jury in no other manner find any Lease to be made to J. N. then as mentioned in the Lease to B. By the Resolution of that Book , the Lease to B for Forty years , shall begin presently .

And who will say in this Case , That because the Jury find a Lease made to B. for Forty years Habendum , from the Expiration of a former Lease made to J. N. that therefore they find a Lease made formerly to J. N. when in truth J. N. had no such Lease ; for they only find what the Habendum in the Lease to B. is , which makes a false mention of a former Lease to J. N. but had no Evidence to find a Lease which was not .

Exactly parallel to this is our present Case ; the Jury find the Bishop of Oxford , by a Lease dated the Fourteenth of October , 1 Mariae , demised to Groker the Mannor of Hooknorton , Habendum , to him and his Assigns for Ninety years , from the Expiration of a former Demise , mentioned in the said Indenture of Lease 1 Mariae : But do not affirm or find , explicitly or implicitly , any former demise made when they only find summarily the Habendum of the Lease , 1 Mariae , which mentions such a former Demise .

Cr. 10 Car. 1. f. 397. Another Case I shall make use of , is the Case of Miller and Jones versus Manwaring , in an Ejectment brought in Chester , upon the Demise of Sir Randolph Crew : The Jury in a Special Verdict found , That John Earl of Oxford and Elizabeth his Wife , were seis'd in Fee in Right of Elizabeth , of the Mannor of Blacon , whereof the Land in question was parcel , and had Issue John ; the said John , Earl of Oxford , by Indenture dated the Tenth of February , 27 H. 8. demis'd the Mannor to Anne Seaton for Four and Thirty years , Elizabeth died 29 H. 8. And the said Earl of Oxford died March 31. H. 8.

Afterwards John the Son , then Earl of Oxford , the Thirtieth of July , 35 H. 8. by Indenture reciting the Demise to Anne Seaton , to be dated the Tenth of February , 28 H. 8. demis'd the said Mannor to Robert Rochester Habendum , after the End , Surrender , or Forfeiture of the said Lease to Anne Seaton for Thirty years .

It was adjudged first in Chester , and after , upon Error , brought in the Kings Bench ; It was resolv'd by all the Iudges ( who affirmed unanimously the first Iudgment ) That the Lease to Rochester began presently at the time of the Sealing , for several Reasons .

1. Which is directly to our purpose , because there was no such Lease made to Anne Seaton , having such beginning and ending as was recited in Rochester's lease .

2. Because the lease made by John , first Earl of Oxford , was determined by his death , Three years before Rochester's lease , and consequently no lease in esse when the lease was made to Rochester ; which Reasons are in effect the same , viz. That a lease made to commence from the end of any lease suppos'd to be in esse , which indeed is not , the lease shall commence presently .

From this Case these Conclusions are with clearness deducible .

1. That if a lease be found specially by a Jury , in which one or more other leases are recited , the finding of such lease is not a finding of any the recited leases : Therefore the finding of the lease made to Rochester , was not a finding of the lease therein recited , to be made to Anne Seaton in any respect .

2. The second thing clearly deducible out of this Case , is , That although the Jury , by their Special Verdict , did find that John the Son , Earl of Oxford , did by his Indenture demise to Rochester for Thirty years , the Mannor of Blacon , Habendum , from the End , Surrender , or Forfeiture of a former lease thereof made to Anne Seaton , dated the Tenth of February , 28 H. 8. yet this was not a finding of any such lease made to Anne Seaton , but only a finding of the Habendum , as it was in the lease made to Rochester , which mentioned such a lease to be made to Anne Seaton .

So in our present Case , the Jury finding that the Bishop of Oxford , 1 Mariae , did demise the Mannor of Hooknorton to John Croker Habendum , for Ninety years , from the Expiration of a former Demise mentioned in the Indenture of 1 Mar. is not a finding of any such former Demise to be made ; but a finding , that in the Indenture 1 Mariae , it is suggested there was such a former Demise , and no more .

And if any man shall object , That in Rochester's Case the Reason why no such lease is found to be made to Anne Seaton , in 28 H. 8. to be , because it is found that the lease made to Anne Seaton was in 27 H. 8. that is not to the purpose , because the Jury might find , and truly , that a lease was made to her , Dated the Tenth of February , 27 H. 8. but that was no hindrance ; but that another lease was made to her in 28 H. 8. as is mentioned in Rochester's lease , which had been a Surrender in Law of that made in 27 H. 8.

Therefore it is manifest , That the sole Reason why no such lease was admitted to be in 28 H. 8. is no other than , because the Jury find no such to have been made , but find a suggestion of it only in Rochester's lease : And it is the same exactly in our present Case .

The third thing deducible from the Case , is , That a Demise by Indenture for a term Habendum , from the Expiration of another recited or mentioned term therein , 35 H. 6. 34 Br. Tit. Faits . p. 4. 12 H. 4. 23 Br. Faits 21. which is not ( or not found to be , which is the same thing ) is no Estoppel or Conclusion to the Lessee or Lessor , but that the Lessee may enter immediately , and the Lessor demise or grant in Reversion after such immediate lease .

There is another Case , resolv'd at the same time , between the same Persons , and concerning the same Land , and published in the same Report , and specially found by the same Jury . Edward Earl of Oxford , Son of John , the Son of John Earl of Oxford , by Indenture between him and Geoffry Morley , Dated the Fourteenth of July , 15 Elizabethae , reciting , That John his Father , by Indenture the Thirtieth of July , 35 H. 8. had demised to Robert Rochester the said Farm or Mannor of Blacon , Habendum for Thirty years , from the end or determination of the lease made to Anne Seaton , the Tenth of February , 27 H. 8. which is a false recital ; for the lease to Rochester was to commence from the end or determination of a lease made to Anne Seaton , that is recited to be made the Tenth of February , 28 H. 8. and that afterwards , the said John Earl of Oxford , had granted by Indenture , Dated the Six and twentieth of March , 35 H. 8. reciting the lease to Anne Seaton , the Tenth of February , 27 H. 8. to Hamlett Freer , the Reversion of the said Mannor of Blacon , Habendum , the said Mannor and Premisses from such time as the same shall revert , or come to the possession of the said Earl , or his Heirs , by Surrender , Forfeiture , or otherwise , for Sixty years , for so is the Case put in one part of the Report ; but in another part of it , it seems to be , That the Demise to Freer was when it should revert , after the Expiration , Surrender , or Forfeiture , omitting the words , or otherwise of the Lease made to Anne Seaton , which will nothing vary the Case . The said Edward , Earl of Oxford 〈…〉 demised the said Mannor or Farm of Blacon , to the said Geoffry Morley , Habendum , from the end of the said Leases for Fifty years .

The Question was , Whether any of these leases , made either to Hamlett Freer or Morley , be good , or were in esse at the time of the lease , made by Sir Randolph Crew to the Plaintiff : Sir Randolph Crew claiming the Inheritance from the Earl of Oxford , and Sir William Norris the Leases from Freer and Morley , and under him the Defendant . And Iudgment was given in Chester for the Plaintiff .

And upon a Writ of Error of this Iudgment brought in the Kings Bench , wherein the Error assign'd was , The giving of Iudgment for the Plaintiff . After several Arguments at Barr , and at the Bench , Seriatim by the Iustices , it was unanimously agreed , The Iudgment in Chester for the Plaintiff should be affirmed .

And that neither the Lease to Freer , nor that to Morley , was good to avoid the Plaintiffs Title .

As for the lease to Freer , it being a grant of a Reversion nominally , and by Agreement of Parties , there being no Reversion , because no lease , at the time of the Grant , was in esse , either of Seatons or Rochesters , upon a point of Rasure in Rochester's Demise found in the Case , and for that Land in possession , could not pass by the name of a Reversion , though by the name of Land a Reversion may pass ; for he who will grant Land in possession , cannot be thought not to grant the same , if only in Reversion , L. Chandoes Case , 6. Rep. according to the doctrine of Throgmorton's Case in the Commentaries .

And for that Morley's lease was to commence after the lease granted to Rochester , which was to commence after that granted to Seaton the Tenth of February , 27 H. 8. whereas no such lease was granted to Rochester , but a lease to commence after one granted to Seaton , in 28 H. 8. It was resolv'd , None of those leases were in esse , and that Morley's lease commenced therefore presently .

The words of the Resolution are these , as to Morley's Lease ; It was Resolv'd that Morley's Lease was not in esse ; for that misrecites the former Leases , and so hath the same Rule as the former , where it recites Leases and there be none such ; Therefore it shall begin from the Date , which being in the Fifteenth of the Queen , for Fifty years , ended 1623. which was before the Lease made to the Plaintiff ; for these Reasons Judgment was affirmed . ;

The same Conclusions are deducible from this lease to Morley , as from the former to Rochester , and therefore I will not repeat them : But here are two Judgments in the very point of our Case , and affirmed in a Writ of Error unanimously in the Kings Bench.

And where it is thought material that the Jury have found a half years Rent to have been behind at Michaelmas , 1643. and thence inferr'd , the Jury have found the leases by which that Rent was ascertain'd , namely , the leases of 29 H. 8. and 1 E. 6.

Surely if a lease be for a term of years , to commence from the end of a former term , and for such Rent as is reserv'd upon such former Demise that never was ; as no term can commence from the end of another which never was , so no Rent can be behind , which cannot appear but by a Demise which was never made , that is , which is never found to be made .

Add further , That if the Iury had found the Leases of 29 H. 8. and 1 E. 6. to have been made , as is mentioned in the lease of 1 Mar. that had not been a sufficient finding of them .

For a Deed is not found at all , nor a last Will , when only the Jury find but part of the Deed or Will , for the Court cannot Iudge but upon the whole , and not upon part .

It it be found in Assise the Defendant was Tenant , and disseis'd the Plaintiff , nisi verba contenta in ultima voluntate W. M. give a lawful Estate from W. M. to R. M. and find the words contain'd in the Will , but not the Will at large ; the Court cannot judge upon this Verdict , 38. 39 El. B.R. West and Mounsons C. Rolls 696. Tit. Tryal . whose Office it is to judge upon the whole Will which is not found . 38 , 39 El. B. R. West and Mounsons Case , Rolls 696. Title Tryal .

So for the same reason , finding but part of a recited Deed , and not the whole , is as if no part were found , and it appears by the Deed of 1 Mariae , that both Deeds of 29 H. 8. and 1 E. 6. are recited therein but in part ; for after as much as is recited of either Deeds respectively is said , as more plainly appears among other Grants and Covenants in the said Deed.

And if other Grants were in the Deed of 29 H. 8. besides those recited , then the express Grant of the very Mannor of Hooknorton , might be one of those Grants which is urg'd not to be granted , because not recited in 29 H. 8. nominally , and if so , here being two former demises of the Mannor mentioned in the Indenture 1 Mar. and for different terms ; the one 29 H. 8. for Eighty years , the other 1 E. 6. for Ninety years , and so expiring at different terms , it is uncertain from which Expiration the demise of the Mannor 1 Mar. shall Commence , and consequently the demise having no certain Commencement , will be void by the Rector of Chedington's Case , 1. Rep.

But admitting the Mannor not demis'd by 29 H. 8. yet the Jury finding the demise 1 Mar. Habendum à fine prioris dimissionis , and not prioris dimissionis ejusdem Manerii , it is uncertain still , Whether the Habendum à fine prioris dimissionis , as the Jury have found it , shall referr to the end of the demise 29 H. 8. or to that of 1 E. 6. both of them being prior demises mentioned in the Indenture 1 Mar. for if only the demise 29 H. 8. had been mentioned in that of 1 Mar. the demise 1 Mar. for its Commencement , must of necessity have referr'd to the Expiration of the demise by 29 H. 8. though the Mannor pass'd not by it , and it will not then change the uncertainty , because the demise 1 E. 6. is mention'd .

Nor shall you , to this finding of the Jury , suppose a different finding from their finding barely the Indenture of 1 Mar. call in aid any thing from the Recitals in 1 Mar. and so make up a Medley Verdict , partly from what the Jury find expresly , and partly from what is only recited , and not otherwise found .

As for instance , The Jury find the Mannor demis'd for Ninety years , Habendum , from the end of a former demise mention'd 1 Mar. This Verdict in it self , finds no Commencement of the term , by not finding from the Expiration of which term it begins , nor find no Rent reserv'd . But the demise of 1 Mar. as to them , must be made out from the recitals of Deeds not found to be real , which is a way of confounding all Verdicts .

When the Jury say , The Mannor of Hooknorton was demis'd à fine prioris dimissionis in Indentura predict . mentionat . for Ninety years , they do not say , à fine prioris dimissionis ejusdem Manerii .

So as if nothing else were , the former Indenture mention'd might be of the Vicaridge , or any other thing , and not at all of the Mannor ; and yet by the Indenture of 1 Mar. the demise of the Mannor was to Commence from the Expiration of such former demise , whatever was demis'd by it .

But the Indenture of 1 Mar. demiseth all the Premisses contain'd in the first Indenture , Habendum from the Expiration of the term .

Ergo , If the Mannor be not compris'd in the first Indenture , it cannot be demis'd by 1 Mar. from the Expiration of the first term in the first Indenture .

But admitting this , Who can say the Mannor of Hooknorton is not compris'd in the first Indenture .

For first , What if only part of the first Indenture is recited , and not all , in the Deed of 1 Mar. and so the Mannor omitted in the recital , though it were compris'd in the Indenture of 29 H. 8. and perhaps the Jury might , if that Indenture were produc'd to them , see it was compris'd in the Indenture , though not recited to be so .

2. What if the Indenture of 29 H. 8. were mis-recited in 1 Mar. and instead of the Mannor , the word Mansion recited ?

3. It is apparent , That the Indenture of 29 H. 8. was not recited , nor pretended to be recited verbatim in that of 1 Mar.

Because after so much of the Indenture of 29 H. 8. as is recited in that of 1 Mar. it is said , as by the said Indenture , viz. 29 H. 8. among divers other Covenants and Grants , more plainly appeareth .

So as there were other Grants in the said Indenture of 29 H. 8. than are recited in 1 Mar. and the Grant of the Mannor by name might be one of them .

4. How can it appear to us , but that the Jury did find the Mannor of Hooknorton to be expresly demis'd by the first Indenture , if any thing were demis'd by it .

If then the Jury did conceive the Mannor of Hooknorton was demis'd by the first recited Indenture , as most probably they did :

When they find , That by the Indenture of 1 Mar. the said Mannor was convey'd à fine prioris dimissionis in Indentur . praedict. mentionat . And there are mentioned in the Indenture of 1. Mar. two former demises of the Mannor , viz. that of 29 H. 8. for a term of Eighty years , and that of 1 E. 6. for a term of Ninety years , there is no certain Commencement of the term of 1 Mar. because it is as uncertain from which of the two former demises it takes his Commencement , as if ten former demises were mention'd , and for different terms , and then it could Commence from neither of them .

But admit it should be taken to Commence from the end of the term of 1 E. 6. and not from the other , because in that term ( if any such were ) the Mannor is without scruple demis'd ; yet we must remember , the present Question is not of the Mannor , but of Two hundred Acres , parcel of the Mannor . And in the Lease of 1 E. 6. though the Mannor be demis'd , yet there is an Exception of certain Lands and Tenements in the Town or Vill of Hooknorton , which Croker then held for certain years enduring .

How doth it appear , That the Two hundred Acres in question , were not those Lands excepted out of the demise of 1 Mariae ? For though they were parcel of the Mannor , they might be severally demis'd and excepted ; and though it be found , Cok. Litt. 325. a. That at the time of the Demise , and at the time of the Trespass , the Two hundred Acres were parcel of the Mannor , it is not found that they were not part of the Lands in the Vill of Hooknorton , at the time of the demise made 1 Mar. then in Lease to Croker , and excepted out of the said demise of 1 Mar. for if they were , the Plaintiff makes no Title to them .

If the Issue be , 15 Jac. B.R. between Ven● and Howel . whether by Custome of the Mannor a Copyhold is grantable to Three for the Life of Two , and it be found that by the Custome it is grantable for Three Lives , that is not well found , for it is but an Argument , Rolls 693. Title Tryal . That because a greater Estate may be granted , a less may , and a new Venire Facias granted , because the matter in Fact , whereupon the Court was to judge , and was the point of the Issue , was not found .

Hill. 10 Car. 1. B. R. Wilkinson and Meriams Case , Rolls 700. & 701. Tit. Tryal . If a Jury find that J.S. was seis'd in Fee of Land , and posses'd of certain Leases for years of other Land , made his Will in writing , and thereby devis'd his Leases to J.D. and after devis'd to his Executors the residue of his Estate , Mortgages , Goods , &c. his Debts being paid , and funeral Expences discharg'd . It being referred by the Jury to the Court , Whether by this devise the Executor hath an Estate in Fee , or not ? This is no perfect special Verdict ; because the Jury find not the Debts paid , and the Funeral Expences discharg'd , which is a Condition precedent to the Executors having an Estate in Fee , and without finding which the Court cannot resolve the matter to them referr'd by the Jury ; Therefore a Venire facias de novo was awarded .

Judgment was given for the Defendant .

Trin. 22. Car. II. C. B. Rot. 461. Richard Edgcomb Knight of the Bath , Executor of Pierce Edgcomb Esquire , his Father , is Plaintiff . Rowland Dee Administrator of Charles Everard Esquire , during the Minority of Charles Everard , Son of the Intestate , Defendant .

In an Action of the Case upon an Assumpsit .

THE Plaintiff declares , That the Intestate , the Thirteenth of July , 1664. at London , in the Parish of St. Mary Bow , in the Ward of Cheap , in consideration that the said Pierce Edgcomb would , at his request , lend him 500 l. promis'd the said Pierce to repay it within Seven daies after demand with Interest , after the rate of 4 l. per Centum .

That thereupon the said Pierce Edgcomb after , at the time and place aforesaid , did lend the said Intestate 500 l.

That the said Pierce , the Testator , afterwards , the Fourteenth of July , 17 Car. 2. at the place aforesaid , required the Intestate to pay the said 500 l. with Interest , after the rate aforesaid , both which amounted to the Sum of 520 l.

He lays further , That the said Intestate was indebted to Pierce the Testator , the Fourteenth day of July , 1664. in the Sum of 500 l. for mony before that time to him lent by the said Pierce .

And in Consideration thereof , the said Fourteenth of July , 1664. in the said Parish and Ward , promis'd to pay when requir'd .

But that neither the Intestate in his life time , nor the Defendant , to whom the Administration of his Goods were committed , during the Minority of Charles Everard , Son of the said Intestate , at London , in the Parish and Ward aforesaid , did pay the said Sums , nor either of them , amounting to 1020 l. to the said Pierce Edgcomb in his life time , nor to the said Richard , the Plaintiff , after his death ; Though required by the Intestate afterwards in his life time , that is , upon the First of August , 17 Car. 2. And the said Defendant , after the death of the Intestate , viz. the Tenth day of March , 18 Car. 2. and often after , at the said Parish and Ward , by the Testator Pierce were requir'd . And the said Defendant , after the death of the Testator , the First day of January , 21 Car. 2. was required , at the place aforesaid , by the Plaintiff , to pay the said mony , which he did not , and still refuses , to his damage of 800 l.

The Defendant pleads payment after the Plaintiffs Writ purchas'd , of several great debts due by Bond and Bills obligatory from the Intestate , to several persons at his death , in number One and thirty .

That the Intestate , the Two and twentieth of December , 16 Car. 2. became bound in a Recognizance in the Chancery to Sir Harbottle Grimstone Baronet , Master of the Rolls , and to Sir Nathaniel Hobart , one of the Masters of the Chancery , in 2000 l.

And that the said 2000 l. is still due and unpaid , and the said Recognizance in its full force , unsatisfied or discharg'd .

He pleads , the City of London is an ancient City , and that within it , time out of mind , hath been held a Court of Record of the Kings , &c. before the Mayor and Aldermen of the said City , in Camera Guild-hall ejusdem Civitatis , of all personal Actions arising and growing within the said City .

That the Intestate , at the time of his death , was indebted apud London praedict. in the Parish and Ward , praedict. to one William Allington in 2670 l. 17 s. 7 d. And who , after the purchase of the Plaintiffs Writ , the Tenth of March , the Eighteenth of the King , came to the said Court , before Sir Thomas Bludworth then Mayor , and the Aldermen in the said Chamber , according to the Custome of the said City , held , us'd , and approv'd .

Et praedictus Willielmus Allington tunc & ibidem in eadem Curia secundum consuetudinem praedictae Civitatis , affirmabat contra praedictum Rolandum Dee ut Administratorem , &c. quandam Billam originalem de placito debiti super demand . Mille sexcentarum & septuaginta librarum , & decem & septem solidorum , & septem denariorum legalis monetae , &c.

And that it was so proceeded , according to the Custome of the said City , that the said William Allington had Judgment to recover against the Defendant the said Debt , and 85 l. 16 s. for damages , &c.

And that after , the Defendant , in full satisfaction of the said Judgment , paid to the said William Allington the Sum of 2670 l. and 17 s.

Then pleads about Four and twenty Recoveries and Judgments thereupon in the Kings Bench , in Pleas of Debt without Specialties , all satisfied but one of 7000 l. and more , due to one Cornwallis .

Then pleads Plene administravit , all the Goods of the Intestate , at the time of his death , to be administred , and that he had not die Impetrationis brevis Originalis praedicti , nec unquam postea aliqua bona seu cattalla predict . Car. Everard , tempore mortis suae in manibus suis administrand . praeterquam bona & cattalla ad valentiam separalium denariorum summarum per ipsum sic , ut praefertur solutarum in exonerationem , separalium Judiciorum , scriptorum obligatori orum , & billarum obligatoriarum predict .

Ac praeter alia bona & cattalla ad valentiam decem solidorum , quae executioni Recognitionis praedict. ac Judicii praedicti per praefatum Carolum Cornwallis versus ipsum , ut praefertur recuperat . onerabilia & onerata existunt .

Et quod ipse Rolandus modo non habet aliqua bona seu cattalla quae fuerunt praedict. Caroli tempore mortis suae administrand . praeter praedicta bona & catalla ad valentiam praedictorum decem solidorum quae executioni recognitionis praedict. ac Judicii praedict. per praefatum Carolum Cornwallis recuperat . sic ut praefertur onerata & onerabilia existunt . Et hoc paratus est , &c. Et petit Judicium . Then

Averrs the debts , so as aforesaid by him paid , to be bonâ fide paid , & pro veris & justis debitis , owing and unpaid by the Intestate at the time of his death .

And that the several Iudgments aforesaid , against him recover'd , were for true and just debts of the Intestate , owing by him at the time of his death .

The Plaintiff taking , by protestation , that nothing alledg'd by the Defendant was true , Demurrs upon the Plea .

The Causes offer'd to maintain the Demurrer , are these :

1. That one of the Iudgments pleaded in Barr obtain'd by William Allington in the Court of London , before the Mayor , &c. against the Defendant for 2670 l. 17 s. 7 d. due to the said Allington by the Intestate Everard , was not duly obtained , and is insufficient to Barr the Plaintiff .

2. That the Defendants special Plea in Barr appearing in any part of it to be false and insufficient , the Plaintiff ought to have Iudgment for his whole debt .

1. For the first Cause , it was urg'd as an Exception to the Defendants Plea , That by the Plea it appears , that time out of mind a Court hath been held in the City of London , before the Mayor and Aldermen , of all personal Actions arising and growing within the said City .

And that the Intestate was , at the time of his death , indebted to the said Allington at London , within the Parish and Ward of St. Mary Bow and Cheapside .

But it is not alledg'd , That the said debt did arise and grow due in London , within the said Parish and Ward ; for wheresoever the debt did arise and grow due , yet the debtor is indebted to the creditor in any place where he is , as long as the debt is unpaid .

And therefore to say , The Intestate was indebted to Allington in the said Sum apud London , &c. affirms not that the debt did arise and grow due at London ; and if not , the Court had no Iurisdiction of the Cause .

The effect of the Defendants Barr is only to shew , That such a Judgment was obtain'd in such a Court against him , and not to set forth the whole Record of obtaining it ; for it were vast Expence of time and mony so to do , as often as occasion is to mention a Record ; and referrs to the Record , prout per Recordum plenius liquet , where the Plaintiff may take advantage of any defect therein . But if that were necessary , it is well set forth ; for his Plea is ,

Et praedictus Willielmus Allington tunc & ibidem in eadem Curia secundum consuetudinem Civitatis praedictae , affirmabat contra praedictum Rolandum Dee ut Administratorem , &c. quandam billam originalem de placito debiti , &c.

And the Custome being to hold Plea of personal Actions arising within the City , if he affirmed a Bill of Debt , according to the Custome ,

It must be of a debt arising and growing due within the City .

2. A second Exception was , That it is not set forth for what the debt was , whereby the Court may judge whether it were payable or not by the Administrator .

To this it was answer'd , That the course in London is for the Plaintiff to declare that the Debtor being indebted to him at such a time and place , Concessit solvere , such a Sum to him , at such a time , for they enter not there at large , as at Westminster , all the pleading ; and the City Customes have been often confirmed by Parliament , and if Exception be taken to the Jurisdiction , it must come from the Defendant .

However that will not avoid the Iudgment , and is but Error .

3. A third Exception was , It is not set forth that the Intestate was indebted to Allington in his own right .

But it must be intended if he were indebted to him by Law , that it was in his own right .

4. A fourth Exception was , That the Defendant pleads Iudgment was given for the Plaintiff , quod recuperaret debitum praedictum ; where the Iudgment should be quod recuperet .

It is not the Defendants concern to recite the words of the Iudgment , as it was given by the Court , but the effect of it relating to the Defendant , and so it is more proper to say Iudgment was given quod recuperaret . The Court say , ideo consideratum est per Curiam ; but he who relates what they did , saith , ideo consideratum fuit per Curiam . But my Book is quod recuperet .

5. A fifth Exception was , That the Plea sets forth the Action was brought against the Defendant Dee in London , as Administrator of the Intestate , omitting durante minori aetate Caroli Everard filii .

That will not avoid the Iudgment , Rolls , Good & Pincents Case , Tit. Executors f. 910. 14 Car. 1. B.R. Piggots Case , 5 Rep. though the Minor were of Age sufficient to administer himself ; nor is it of prejudice to any , as was resolved in the Case of one Pincent .

But if an Administrator , durante minori aetate , brings an Action , he must averr the Administrator or Executor to be under the Age of Seventeen years .

6. Sixthly , it was urg'd as resolv'd in Turners Case , Turners Case 8. Rep. f. 132. That the Recital of Allingtons Declaration in London , not mentioning the Debt to be per scriptum obligatorium , it shall not be intended to be so .

And it was urg'd as resolv'd in that Case of Turner also , That it being a Debt but by simple Contract , the Administrator was not chargeable with it .

That is a Resolution in Turners Case supernumerary , and not necessary to support the Iudgment given , and consequently no Iudicial Resolution for the Iudgment given in Turners Case was well given , because the Iudgments given before the Mayor of Cicester , pleaded in barr of the Plaintiffs Action were resolv'd to be coram non Judice , because it appear'd not that the Mayor of Cicester had any Iurisdiction to hold Plea by Patent or Prescription .

But admitting that an Executor or Administrator , according to that Resolution , is not chargeable ( if by chargeable be meant compellable ) at the Common Law in an Action of Debt brought upon a simple Contract of the Testator or Intestate , to pay such Debt ; what would it avail the Plaintiff in that Case , or can in this Case , unless the Resolution had been , That though the Iurisdiction of the Court of Cicester had been well set forth , yet a Iudgment there obtain'd against the Executor , upon a simple Contract of the Testators , had been no Barr in an Action of Debt brought upon an Obligation of the Testators ( But there is no such Resolution there ) for a Iudgment obtain'd upon such a simple Contract , is as much a Iudgment when had , as any other , upon Obligations , and the Books and use are clear , That Judgments must be satisfied before Debts due by Obligation . It is true , it is a Waste of the Goods of the Dead in the Executor , to pay voluntarily a Debt by simple Contract before a Debt by Obligation whereof he had notice ( and not otherwise ) in that Case . But no man ever thought it a Devastavit in the Executor , to satisfie a Iudgment obtain'd upon a simple Contract , before a Debt due by Obligation .

Yet I shall agree , the Executor by the Common Law , might have prevented this Iudgment , by abating the Plaintiffs Writ at first , which he had power lawfully to do , but he had equal power lawfully not to abate it , and us'd that last lawful power , and not the first , and wrong'd none in using it .

To this may be added , That the Iudgment upon a simple Contract is the Act of the Court , and compulsory to the Executor , and he hath then no Election , but must obey the Iudgment .

In conclusion though it were agreed , That in the Action of Debt brought by Allington upon a simple Contract , Iudgment ought not to have been given against the Defendant being Administrator , but the Writ should have abated , because the Administrator was not chargeable . And though the Iudgment given were erroneous , and for that cause reversible , yet standing in force unrevers'd ; It is a good Barr to the Plaintiffs Action .

But lest this should countenance Iudges abating the Writ ex officio , in such Actions brought , or Plaintiffs to bring Error upon Iudgments given in such Actions , I conceive the Law is clear , That Iudges ought not , ex officio , to abate such Writ , nor otherwise than when the Executor or Administrator , Defendant in such Action demurrs , and demands Judgment of the Writ , and that Iudgment given against such Defendants not demurring to the Writ , is not Erroneous , unless for other cause .

If it be urg'd further , That though a Iudgment obtain'd upon a simple Contract , be a barr to an Action of Debt brought after upon an Obligation , or to an Action of the Case upon an Assumpsit to pay mony , as the present Case is .

Yet it should not barr , if the Action upon which it was obtain'd , were commenc'd pending a former Action upon an Obligation , or upon an Assumpsit for mony , in which the Intestate could not have waged his Law .

The answer is as before , such Iudgment barrs until revers'd , if admitted to be reversible ; as it is not .

But the Law is setled , That wheresoever an Action of Debt , upon Bond or Contract , is brought against a man , he may lawfully confess the Action , and give way to a Judgment , if there be no fraud in the Case , although he have perfect notice of such former Suit depending ; nor is there any restraint or limit of time for confessing an Action brought upon a simple Contract , more than upon a Bond.

And to satisfie any Debt upon Obligation , 5 H. 7. f. 27. b. Moore , Scarle● Case . f. 678. Crook . 38 El. f. 462. Green & Wilcocks Case . before a Iudgment so obtain'd , is a Devastavit in the Executor or Administrator , and so it is to satisfie any latter Judgment , if there be not assets to satisfie the first also . So are the express Books ; to those points of 5 H. 7. per Curiam : and Scarles his Case in Moore and Green , and Wilcock's Case in Crook . Eliz.

Yet in 25 Eliz. when an Action of Debt for 100 l. was brought against an Executor in C. B. and pending that , Debt was brought against him in B. R. for 100 l. which latter he confess'd , and the Iudgment there had , pleaded in Barr to the first Action .

And upon Question if the Plea were good , Fenner and Walmesley held it good , but Anderson , Mead , Wyndham , and Periam argued to the contrary , and that he ought to have pleaded the first Action pending to the second Action brought . The Arguments of both sides you may see in Moore , f. 173. Moore , 25 El. f. 173. where it is left a Quere , the Iudges doubting the Case ; but since the Law is taken , That the Iudgment is a good barr to the first Action .

It will be still objected , That if the Law be that Executors or Administrators may pay debts upon simple Contracts of the deceas'd , to which they are not bound , and thereby prevent the payment of a debt to which they are bound ; It is repugnant to Reason , and consequently cannot be Law ; for that is in effect , at the same time to be bound , and not bound to pay : For he who may not pay being bound , is not bound at all . For clearing this we must know ,

Though Executors or Administrators are not compell'd by the Common Law to answer Actions of Debt for simple Contracts , yet the Law of the Land obligeth payment of them . For ,

1. Vpon committing Administration , Oath is taken to administer the Estate of the dead duely , which cannot be without paying his debts .

2. Oath is taken to make true accompt of the Administration to the Ordinary , and of what remains , after all Debts , Funeral Charges , and just Expences of every sort deducted .

3. This appears also by the Statute of 31 E. 3. c. 11. That Administrators are to administer and dispend for the Soul of the Dead ; and to answer to other to whom the dead persons were holden and bound , which they cannot better do , than by paying their debts .

And as this was the ancient Law and practise before in the Spiritual Court , so by the new Act in 22 and 23 of the King , for the better settling of Intestates Estates , It is enacted accordingly , that upon the Administrators accompt , deductions be made of all sorts of debts .

This appears to be the ancient Law by the Great Charter , c. 18. and long before by Glanvill in Henry the Second's time , and Bracton in Henry the Third's time .

4. And by Fitz-herbert in the Writ de rationabili parte bonorum , the debts are to be deducted before division to the wife and children . And upon the Executors accompt all the Testators debts are to be allow'd before payment of Legacies , which were unjust , if the payment of them were not due , as appears by Doctor and Student .

Executors be bound to pay Debts before Legacies by the Law of Reason , and by the Law of God ; for Reason wills that they should do first that is best for the Testator , that is , to pay debts , which he was bound to pay before Legacies , which he was not bound to give .

2. It is better for the Testator , his Debts should be paid , Doct. & Stud. l. 2. c. 11. for not payment of which his Soul shall suffer pain , but none for not performing his Legacy .

The Ordinary upon the accompt , L. 2. c. 10. f. 158 in all the Cases before rehears'd , will regard much what is best for the Testator . And I conceive the Ordinary may inforce the payment of Debts upon Contracts , as well as Legacies or Marriage mony , and no Prohibition lyes .

An Executor or Administrator may retain for his own satisfaction a Debt by single Contract , due from the Testator or Intestate , which he could not do , unless the payment were lawful .

If at the Common Law , the Executors payments of Debts , upon simple Contracts were not just , Why have the Iudges , in all Ages , given Judgment for the Plaintiffs , unless the Defendant either Demurrs in the Commencement of the Plea , or avoids the Debt by special matter pleaded , and put in issue ; but he shall never , in such case , either Arrest the Iudgement , or bring Error after Iudgment for that Cause .

And so it is agreed for Law in Read and Norwoods Case in Plowden , where the Iudges had view of numerous Iudgments in that kind , as there appears .

And if such Debts were not justly to be so demanded and paid , it had been against the Iudges Oath to pass such Iudgments ; for the Defendant is not bound to Demurr , but leaves the Iustice of the Plaintiffs demand to the Court.

In Decimo H. 6. Cotsmore , 10 H. 6. f. 24. b. 25. a. who gave the Rule in the Case in question , hath these words ; The Law will not charge Executors with a duty due by a simple Contract made by the Testator . Then if such Action be brought against Executors upon a simple Contract made by the Testator , and they will not take advantage at the beginning of the Pleas in abatement of the Writ , but plead other matter which is found against them , they never shall have advantage to shew that before Judgment ( that is in Arrest of Judgment ) and that I have known adjudg'd in this place once before this time .

Here is not only his own Opinion , but a Iudgment by him cited in that Court formerly in the point .

I shall add another Case to this purpose . A man brought a Writ of Debt against another , 15 E. 4. f. 29. 2. and counted that he sold certain Goods to his Testator for the Sum in demand . Littleton caus'd the Attorney of the Plaintiff ( as printed ) but should be Defendant , to be demanded , and so he was ; and Littleton demanded of him , Si'l voyl avoyder son Suite , not his own , but his who counted against him que dit que voyl , and after Littleton said to the Attorney of the Plaintiff , The Court awards , that you take nothing by the Writ ; for know , that a man shall never have an Action against Executors , where the Testator might have wag'd his Law , in his life time , quod nota .

It was not proper to ask the Plaintiffs Attorney , Whether he would avoid his Clyents Suit , and an unlikely answer of his to say , Yes ; but a rational demand to the Defendants Attorney , Whether he would avoid his Suit who counted against him ? and probably he should answer Yes ; and after Littleton said to the Attorney of the Plaintiff , the Court awards you take nothing by your Writ : If he had been the person to whom the question was first asked , and who immediately before had answer'd , Yes ; the Book had not been that after Littleton said to the Attorney of the Plaintiff , but that Littleton said to him who was the same he discours'd with .

The Print thus rectified , this Case agrees with the Law deliver'd by Cotsmore . An Executor is sued , and declared against in Court , for so was the Course then , upon a simple Contract of his Testators , the Iudge asks his Attorney , Whether he had a mind to avoid the Suit ? who answer'd , Yes . If the Iudge had thought fit , he might have avoided the Suit without making any question , but knowing it was not consonant to Law to avoid a Suit upon a simple Contract , unless the Executor himself desired it ; He therefore asked him the Question , and finding he did desire it ; the Iudge presently told the Plaintiffs Attorney , He could take nothing by the Writ . Else you see the Consequence of this Iudgment , That the Iudges , ex officio , should prevent any Iudgment for the Plaintiff in Debt , brought upon a simple Contract against an Executor , whether the Executor would or not , against former and subsequent usage .

Brook in Abridging this Case , and not reflecting upon it rightly , abridges it , that Littleton demanded the Plaintiffs Attorney , If he would avow his Suit ; whereas the word is clearly avoid , not avow : and to what purpose should he ask that Question ; for sure it was avow'd as much as could be , when counted upon at the instant in Court .

Then Brook makes a Note , Br. Executor pl. 80. Nota cest Judgment ex officio .

And this Note of Brooks mis-led the Lord Anderson once to the same mistake , if the Report be right ; but the like hath not been before or since . Rob. Hughson's Case . Gouldsboroughs Rep. 30 Eliz. f. 106. & 107. An Action was brought against an Administrator upon a Contract of the Intestates , who pleaded fully administred , and found against him . Anderson said that ex officio , the Court was to stay Iudgment , and did so , because the Administrator was not chargeable upon a simple Contract .

But since that Case of Hughson , one Germayne brought an action of Debt against Rolls , as Executor of Norwood , for Fees , as an Attorney in the Common Bench , and for soliciting in the Queens Bench , Germayne versus Rolls , 37 & 38 El. Cro. 425. pl. 24. and for mony expended about a Fine for Alienation . Rolls pleaded Ne unque Executor , which was found against him , and Judgment given : Vpon which Rolls brought a Writ of Error , and the Error assign'd was , That the Action lay not against an Executor , because the Testator could have waged his Law . But it was resolv'd , That for Attorney's Fees , the Testator could not wage his Law , but for the rest he might ; and that the Executor might have demurr'd at first , but pleading a Plea found against him , it was said he was Concluded ; some difference of Opinion was .

But agreed , That the Executor confessing the Action or pleading , nil debet , in such Case , and that found against him , he hath no remedy .

And Popham remembred Hughson's Case in the Common Pleas , and would see the Roll , for he doubted , that both in that Case , and this of Germayne , the Executor had not confessed the Debt in effect .

But after it was moved again , and all the Judges , Hill. 38 Eliz. Cro. 459. pl. 4. but Gawdy , were of Opinion that the Judgment was well given , as to that Cause ; but it was revers'd for a Cause not formerly mov'd , which was ,

That an Action of Debt would not have layn against the Testator himself for part of the mony in demand and recovered ; that is , for the mony for soliciting , which was not a certain Debt , but to be recovered by Action on the Case .

Some Cases in the Old Books may seem to colour this Opinion , That the Judges , ex officio , in an Action of Debt brought against an Executor or Administrator for a simple Contract of the Testators or Intestate , ought to abate the Writ .

25 E. 3. f. 40. The first is 25 E. 3. f. 40. where an Action was brought against an Executor upon a Tally struck by the Testator . The Iudges said , Nil Capiat per breve , if he have no better specialty .

12 H. 4. f. 23. The like Case is 12 H. 4. f. 23. where a like Action was brought against the Executor or Administrator upon a Tally of the Testators , and there it appears the Defendants Council would have demurr'd , and the Cause is mentioned , That the writing of the Tally might be washed out by water , and a new put in the place , and the Notches chang'd , and the Iudgment was Nil capiat per breve .

This being the same Case with the former , the reason of the Iudgment was the same of grounding an Action upon a Specialty not good in Law .

Besides , it appears in the latter Case , the Executor opposed the Action by offering to demurr , and for any thing appearing , he did so in the first .

41 E. 3. f. 13. The other Case is 41 E. 3. f. 13. where an Action upon the Testators simple Contract was brought against an Executor , and the Executor of a Co-executor to him , the Writ was abated for that Reason , and said withal , There was no Specialty shewed but the first reason abating the Writ necessarily , it no waies appears the Iudges would , ex officio , have abated the Action for the last Cause , if the Executor desired it not .

So as when the Executor or Administrator hath once pleaded to an Action of Debt , upon a single Contract , he is equally bound up for the event , as in any Action wherein the Testator or Intestate could not have waged Law .

It is therefore an ill Consequence for the Plaintiff to say , I have brought an Action upon a simple Contract , wherein the Intestate could not have waged his Law .

Therefore I must be paid before another Creditor , by simple Contract , bringing an Action wherein the Intestate might wage his Law , for it is in the Administrators power , by omitting to abate the Writ at first , to make the Debt demanded by Action in which the Intestate might have waged his Law , to be as necessarily and coercively paid , as the other Debt demanded by Action , wherein he could not wage his Law .

And if the Executor believes the Debt by simple Contract demanded by Action of Debt to be a just Debt , it is against honesty , conscience , and the duty of his Office to demurr , whereby to delay , or prevent the payment of it .

Besides , though since that illegal Resolution of Slade's Case , grounded upon Reasons not fit for a Declamation , much less for a Decision of Law ,

The natural and genuine Action of Debt , upon a simple Contract , be turned into an Action of the Case , wherein a man is deprived of waging his Law ; It is an absurd Opinion , to think that therefore Debt demanded by it , ought to have precedency for payment of a Debt due by simple Contract , but quite the contrary .

For Actions of the Case are all Actiones injuriarum , & contra pacem , and it is not a Debt certain , in reason of Law , that can be recovered by those Actions , but damage for the injury ensuing upon the breach of promise , which cannot be known until a Iury ascertain what the damage is : Therefore a man did never wage his Law for a demand incertain ; for he could not make Oath of paying that , which he knew not what it was , as consisting in damage .

Now although the Iury give in damages regularly , the money promised to be paid , yet that changeth not the reason of the Law , nor the form , for still it is recovered by way of damage , and not as a Debt is recovered .

Which shew the Action much inferiour and ignobler than the Action of Debt , which by the Register is an Action of property , and no reason a damage uncertain in its own nature should be paid before a certain Debt by simple Contract , which were the first Debts , and will probably be the last of the World , for Contracts by writing were much later ; and there are many Nations yet , where Letters are unknown , and perhaps ever will be .

And that which is so commonly now received , That every Contract executory implies a promise , is a false Gloss , thereby to turn Actions of Debt into Actions on the Case : For Contracts of Debt are reciprocal Grants . A man may sell his black Horse for present mony , at a day to come , and the Buyer may , the Day being come , seize the Horse , for he hath property then in him , which is the reason in the Register , that Actions in the Debet , and also in the Detinet , are Actions of Property ; but no man hath property by a breach of promise but must be repair'd in damages .

The last Exception was , That a Recognizance in the nature of a Statute Staple of 2000 l. in the Chancery , is pleaded in Barr.

And it is not said , That it was per scriptum Obligatorium , or seal'd , as the Statute of 23 H. 8. requires , nor that it was secundum formam Statuti .

Cr. 10 Car. 1. f. 362. Goldsmiths Case , versus Sydnor . And Goldsmith and Sydnors Case was urg'd to be adjudg'd in the point , which Case is so adjudg'd by the Major part of the Court.

But in that Case it is pleaded , that Sydnor , before the Chief Justice of the Common Pleas , concessit se teneri Ed. Hobert in 400 l. to be paid at Pentecost next ensuing , & si defecerit , &c. voluit & concessit per idem scriptum quod incurreret super se haeredes & Executores poena in Statuto Stapulae .

So as it appears , The Recognizance was taken before the Chief Justice of the Common Pleas , and that the Conuzor was to incurr the penalty of the Statute Staple , and therefore a Recognizance in the nature of a Statute Staple , was there intended to be pleaded , but it was not pleaded that it was taken secundum formam Statuti in general , nor specially per scriptum Obligatorium under Seal , as it ought to be .

But here it is not pleaded , That the Conuzor was to incurr the penalty of the Statute Staple ; nor that it was taken before any person authorized to take a Recognizance in the nature of a Statute Staple , by the Statute of 23 H. 8. c. 6. for the Chancellor is not so authorized .

But that it was a bare Recognizance entred into in the Court of Chancery , which all Courts of Westminster have power to take , and that it remains there inroll'd . And that the said Sum of Two thousand pounds should , for default of payment , be levied of the Conuzors Lands , Goods , and Chattels , and Execution of such Recognizances are to be made by Elegit of the Lands as well as Goods .

And it appears by the Statute of Acton Burnell 13 E. 1. which is the Law for the Statute Merchant , That such Recognizances for Debt were before the Statute Merchants taken by the Chancellor , the Chief Justices , and Judges Itinerant , but the Execution of them not the same as of the Statute Merchant , nor are they hindered by that Statute from being as before expresly .

And in 4 Mariae , upon a great search of Presidents , Br. Recognizance p. 20. Hill. 4 Mar. It was resolv'd , That every Iudge may take a Recognizance in any part of England , both in Term and out of Term.

The like Resolution was in the Lord Hobart's time . Hob. f. 195. Hall & Wingfields Case .

So as the Recognizance here pleaded , is not a Recognizance in the nature of a Statute Staple , nor so pleaded , but a Recognizance entred into in the Court of Chancery , as Recognizances are entred into in the Court of Common Pleas , or Kings Bench , and as they were entred before Recognizances by Statute Merchant or Staple . But

Such Recognizances are to be satisfied before Debts by simple Contracts , and before Debts by Obligations also , Rolls , Executors f. 925. 14 Jac. B.R. Robson and Francis Case . which avoids the Exception .

Now as to the Second Question .

Admitting the Iudgment in London as pleaded , be no sufficient barr of the Plaintiffs Action ; or if it be , that the Recognizance as pleaded , is no sufficient barr : For if those will barr , there is no further Question .

If then , Iudgment ought to be for the Plaintiff , upon the Defendants Plea to the whole matter ? And I conceive it ought not .

I shall agree , That if the Defendant plead several Judgments against the Intestate , or himself as Administrator , and Statutes entred into by the Intestate , and concludes his Plea , That he hath not , nor at any time had , assets in his hand of the Intestates Estate , praeterquam bona & cattalla sufficient . to satisfie those Judgments and Statutes , and averrs they are unsatisfied , and which assets are chargeable with the said Judgments and Statutes , that this is a good Plea in barr of the Plaintiffs Action , and so it is admitted to be in Meriel Treshams Case ; Meriel Treshams Case , 9. Rep. and the Plaintiff must reply , That he hath assets ultra , what will satisfie those Judgments and Statutes , as is there agreed .

But if the Plaintiff reply , That any one of those Judgments was satisfied by the Intestate in his life time , saying nothing to any of the rest . And the Defendant demurr upon this Replication , the Plaintiff must have Iudgment , for the Plea was false , and the falshood detrimental to the Plaintiff , and beneficial to the Defendant ; for having pleaded , he had no more assets than would satisfie those Iudgments , one of them being satisfied before , he hath confessed there is more assets than will satisfie the other Iudgments , by as much as the Iudgment already satisfied amounts unto , which would turn to his gain , and the Plaintiffs loss , if his demurrer were good .

Turners Case 8. Rep. But to plead , That he hath not bona & cattalla praeterquam bona quae non attingunt , to satisfie the said Judgments and Statutes is not good for the incertainty ; for if the Judgments and Statutes amount to 500 l. 20 l. are bona quae non attingunt , to satisfie them ; so is 40 l. so is 100 l. so is 200 l. and every Sum less than will satisfie ; so as by such Plea there is no certain Issue for the Iury to enquire , nor no certain Sum confess'd towards the payment of any Debt , as is well resolv'd in Turners Case .

So if a man pleads he hath not assets ultra , what will satisfie those Iudgments , the Plea is bad for the same reason , for 20 l. is not assets ultra , that will satisfie them , nor 40. nor 100. nor 200. nor doth that manner of pleading confess he hath assets enough to satisfie : As to say , I have not in my pocket above 40 l. is not to say , I have in my pocket 40 l.

But in this Case , the Defendant hath pleaded payment of several Bonds , Bills , and Judgments , and pleads one Recognizance of 2000 l. and one Judgment of 7000 l. wholly unsatisfied , and concludes his Plea with plene administravit .

And that he had not , die impetrationis brevis , nec unquam postea aliqua bona seu cattalla , of the Intestates , in manibus suis administranda praeterquam bona & catalla , ad valentiam separalium denariorum summarum per ipsum , sic ut praesertur solutarum , in discharge of the said several Judgments , Bonds , and Bills

Et praeterquam alia bona & catalla ad valentiam decem solidorum quae executioni recognitionis praedict. & judicii praedict , per praefat. Car. Cornwallis recuperat . onerabilia existunt .

Now upon this Plea , if Allington's Iudgment of 2670 l. or the Statute of 2000 l. or both , be avoided , yet the Plaintiff hath no right to be paid , until the Iudgment of 7000 l. be so satisfied , and that some assets remain after the satisfaction of it in the Administrators hands , for before the Plaintiff hath no wrong , nor the Administrator doth none , nor hath any benefit by not satisfying the Plaintiff .

That spungy Reason that the Defendants Plea is all intire , and therefore if any part be false , as either in that of Allington's Iudgment , or the Recognizance , the Plea is bad , is not sense ; for if the falshood be neither hurtful to the Plaintiff , nor beneficial to the Defendant ; why should the Plaintiff have what he ought not , or the Defendant pay what he ought not .

Suppose the Defendant pleaded a Iudgment obtain'd against the Intestate , or himself , and that the Intestate or himself were married at the time of the Iudgment obtain'd ( which in truth was false , for that the one or the other was unmarried at that time ) his Plea being otherwise good ; Should this falsness cause the Plaintiff to recover ? surely no , for the falsness is not material , nor any way hurtful to the Plaintiff .

Besides , the usual pleading , as appears both by Turners and Treshams Case , is that the Plaintiff must avoid all payments pleaded in barr , until some assets appear in the Administrators hands remaining , and then he is to have Iudgment .

Much noise hath been about this Case , and without Reason , as I suppose , though there were no precedent Iudgment in the point , but there is a Judgment per Curiam .

An Action of Debt was brought against Executors , 9 E. 4. f. 12. b. who pleaded a former Recovery against them of 200 l. and Execution issued , and pleaded likewise another Recovery against them of 100 l. and travers'd , that they had no assets but to satisfie that Execution of 200 l. the Plea was adjudged good by the Court , and that the Plaintiff must reply , They had assets in their hands , ultra the said 200 l. and ultra the said 100 l. for before the 100 l. were also satisfied the Plaintiff was not intitled to his Debt , as the Book is .

Hill. 18 & 19 Car. II. C. B. Thomas Price is Plaintiff , against Richard Braham , Elizabeth White , Elianor Wakeman , and Richard Hill Defendants , In an Action of Trespass and Ejectment .

THE Plaintiff declares , That one Henry Alderidge , the First of November , 18 Car. 2. at the Parish of St. Margarets Westminster , demis'd to the Plaintiff and his Assigns , an Acre of Land , with the Appurtenances , in the Parish of St. Margarets aforesaid .

Habendum from the Thirtieth of October then last past , for the term of Five years next ensuing ; by virtue whereof he entred , and was possessed , untill the Defendants afterwards , the same day entred upon him , and did Eject him , to his damage of 20 l.

To this the Defendants pleaded , That they are not Culpable .

Special Verdict is found . By which it is found , That the Defendants are not Culpable of Entry and Ejectment in the said Acre , excepting a piece thereof , containing One hundred and Eighty Foot thereof in length , and Eight and twenty Foot in breadth .

And as to that piece they find , that the same , time out of mind , was a Pool , until within Twenty years last past , during which Twenty years it became fill'd with Mudd .

They find , That before the Trespass suppos'd , that is , the First of August , 1606. King James was seis'd , in right of the Crown , of the said Pool , and three Gardens , with the Appurtenances , in St. Margarets aforesaid , in his Demesue as of Fee .

They find again , That the same First Day of August , 1606. A Water-work was built in the said Gardens , and the said Pool was thence us'd , with the said Water-work , until the Twelfth Day of March , in the Eleventh year of King James .

That King James so seis'd , the said Twelfth of March , by his Letters Patents under the Great Seal of England , bearing Date the said Twelfth of May , 11 Jac. in consideration of 70 l. 10 s. of lawful mony of England , paid by Richard Prudde , and for other considerations him moving , at the nomination and request of the said Richard . Et de gratia sua speciali , ex certa scientia & mero motu for him , his Heirs and Successors , granted to the said Richard Prudde and one Toby Mathews , Gent. and to their Heirs and Assigns ; among other things the said Three Gardens and Water-work thereupon erected , to convey water from the River of Thames to divers houses and places in Westminster , and elsewhere , with all and singular the Rights , Members , and Appurtenances , of what nature and kind soever .

They further find , That the said King James , by his said Letters Patents , for the consideration aforesaid , for him , his Heirs and Successors , granted to the said Richard Prudde and Toby Mathew , their Heirs and Assigns ( inter alia ) Omnia & singula stagna , gurgites aquas , aquarum cursus , aquaeductus , to the said Premisses , granted by the said Letters Patents , or to any of them , or to any parcel of them , quoquo modo spectantia , pertinentia , incidentia , vel appendentia , or being as member , part , or parcel thereof , at any time thentofore had , known , accepted , occupied , used , or reputed , or being together with the same , or as part , parcel , or member thereof , in accompt or charge , with any of his Officers , as fully and amply as the same were formerly held by any Grant or Charter , Ac adeo plene libere & integre , ac in tam amplis modo & forma , prout idem nuper Rex aut aliquis progenitorum sive predecessorum fuorum premissa praedict. per easdem Litteras Patent . prae-concess . & quamlibet seu aliquam inde partem , sive parcellam habuerunt , habuissent , vel gavisi fuissent , & habuissent vel habere uti & gaudere debuiffent aut debuit .

They further find , That the said Pool was necessary for the Water-work aforesaid , and that it could not work without the said Pool .

They further find , That the King , who now is , by his Letters Patents dated at Westminster the Fifteenth of February , the Eighteenth of his Reign inroll'd in the Exchequer , in consideration that Henry Alderidge Gent. a piece of Laud , and other the Premisses granted by the said Letters Patents , cover'd with water and hurtful mudd , would fill up at his proper charges , and perform the Covenants and Agreements in the Letters Patents contain'd , for him , his Heirs and Successors , granted the aforesaid piece of Land , containing as aforesaid in length and breadth , by the name of All that piece of Land or broad Ditch , lying and being in the Parish of St. Margarets Westminster , with particular Boundaries thereto expressed ,

To have and to hold from the Feast of the Annunciation last past , for the term of One and twenty years thence next ensuing .

They find , That the said Henry Alderidge entred into the Premisses , then in the possession of the Defendants , and so possess'd , made the Lease to the Plaintiff , Habendum to him and his Assigns , as in the Declaration .

That the Plaintiff entred by virtue thereof into the said piece of Land , and was possess'd , till the Defendants Ejected him .

And if upon the whole matter , the Defendants be Culpable , they assess damages to 12 d. and costs to 40 s. And if they be not , they find them not culpable .

The first Question is , What can pass by the name of Stagnum or Gurges ? for if only the water , and not the soyl , passeth thereby , the Question is determined , for the piece of Land containing such length and breadth , cannot then pass .

Fitzh . N. Br. 191. b. Lett. H. By the name of Gurges , water and soyl may be demanded in a precipe .

34 Ass. pl. 11. Coke Litt. f. 5 , 6. ad finem . By the name of Stagnum the soyl and water is intended .

1. Where a man had granted to an Abbot , totam partem piscariae suae , from such a Limit to such a Limit , reservato mihi Stagno molendini mei . And the Abbot , for a long time after the grant , had enjoyed the fishing of the Pool . It was adjudg'd , the Reservation extended to the water and soyl ; but the Abbot had the fishing by reason of long usage after the Grant , which shewed the Intent .

1606. 4 Jac. The next Question is , When the soyl may pass by the word Stagnum , whether it may , as belonging and pertaining to the Water-work erected 6 Jac. and granted away with the Pool , as pertaining to it in 11 Jac. as it is found : or to the Gardens , which seems a short time , especially in the Case of the King , to gain a Reputation , as belonging and appertaining .

As to this Question , things may be said pertaining in Relation only to the extent of the Grant . As an antient Messuage being granted , with the Lands thereto appertaining , and if some Land newly occupied , and not antiently with that Messuage , shall pass as appertaining , is a proper Question ; but that is a Question only of the extent of the Grant , and what was intended to pass , and not of the nature of the Grant .

Four Closes of Land , part of the possessions of the Priory of Lanceston , came to King Henry the Eighth , and after to Queen Elizabeth , usually call'd by the Name of Drocumbs , or Northdrocumbs . A House was built 21 Eliz. as the Book is , by the Farmers and Occupiers of these Closes upon part . In 24 Eliz. she granted , Totum illud Messuagium vocat . Drocumbs , ac omnia terras & tenementa dicto messuagio spectantia in Lanceston .

After King James made a Lease of the Four Closes call'd Northdrocumbs , or Drocumbs ; Gennings versus Lake , 5 Car. 1. Crook 168. and upon question between the Queens Patentee and the Kings , Iudgment was given for the Queens Patentee : Because , though the House was newly erected before the Queens Grant , yet the Land shall be said belonging to it , and it shall pass by such name as it was known at the time of the Patent ; and that was a stronger Case than this , there being but Three or Four years to give Reputation of belonging or appertaining .

Another meaning of the words belonging or appertaining , is , when they relate not to the extent or largeness of the Grant , but to the nature of the thing granted . As if a man newly erect a Mill in structure , and hath no Water-course to it , if he grants his Mill with the Appurtenances , nothing passes but the structure . But if he , after the structure , acquire or purchase a Water-course to it , and grant it with the Appurtenances , the Water-course passes , because the Mill cannot be used without it . So it is for the Mill-damm or Bank , or the like . So if he acquire an inlargement or bettering of his Water-course , that additional water shall pass as pertaining , how lately soever acquired .

So if a man grants his Saddle , with all things thereto belonging , Stirrops , Girths , and the like pass .

So if a man will grant his Viol , the Strings and Bow will pass .

And the Pool was belonging and appertaining to the Water-work in this last sense , as pertaining to the nature of the thing granted , without which it could not be us'd ; for the Iury find ,

Quod Stagnum praedictum fuit necessarium pro structura ( Anglicè Water-work ) praedict. quodque eadem structura sine eodem Stagno operare non potuit .

And where a thing is so pertaining to the nature of the thing granted , it is belonging and pertaining immediately as soon as the thing is erected , and it is annexed to it .

And note , the Iury do not find that aqua Stagni praedict . but the Stagnum it self , was necessary for the Water-work . Nor do they find that the Water-work could not operare sine aqua Stagni , but sine Stagno praedict . And thereby they find that the Water and Soyl , which Stagnum signifies , was necessary for the work , and it could not work without it .

Pasch. 19 Car. II. Henry Stiles Plaintiff ; Richard Coxe Baronet , Richard Coxe Esquire , John Cromwell , Thomas Merrett , and Charles Davies Defendants ; In an Action of Trespass , of Assault , Battery , and False Imprisonment .

1. THE Plaintiff declares , That the Defendants , the last day of December , in the Seventeenth year of the King , in the Parish of St. Mary Bow in the Ward of Cheap in London , assaulted , wounded , and kept him in Prison by the space of two days next following , to his Damage of One hundred pounds .

2. The Defendants plead , They are not Culpable of the Trespass , Assault , Battery , &c. aforesaid .

3. The Iury find Richard Coxe Esquire , and Charles Davies , not Culpable accordingly .

4. And as to the rest of the Defendants they find specially , That before the suppos'd Trespass , that is , the Eight and twentieth day of September , in the Seventeenth year of the King , one Richard Baughes Esquire , one of the Iustices of the Peace of the County of Gloucester , issued his Warrant under his Hand and Seal to the Constable and Tithingmen of Dumbleton in the said County , to apprehend and bring before him the Plaintiff Henry Stiles , and others , to answer to such matters of Misdemeanour , as on his Majesties behalf , should be objected against them by Sir Richard Coxe Baronet , then high Sheriff of the said County .

They find the Warrant in haec verba .

5. That the said Warrant was afterwards , and before the Trespass , delivered to one Samuel Williams , Constable of Dumbleton , to be executed , and that upon the said last day of December , mentioned in the Declaration , being Sunday , immediately before Divine Service , the Plaintiff sitting in a Seat of the said Church of Dumbleton , by order of Richard Dasney Esquire , his Master , who claimed right to the said Seat , the said Plaintiff being no Parishioner there , nor dwelling in the said Parish , the said Samuel being then Constable , arrested the said Plaintiff .

6. That the said Plaintiff at first resisted , and refused to obey the said Warrant , and after obey'd it . That the said Samuel the Constable , required the said Defendant Thomas Merret , to assist him to convey him before a Iustice of the Peace . But the said Samuel , Thomas Merret , and John Cromwell , convey'd him to the House of the said Samuel in Dumbleton .

7. Et tunc , the aforesaid Richard Coxe Miles , sent for the said Samuel ; at the House of the said Samuel in Dumbleton aforesaid , Et praecepit eidem Samueli , to lay the Plaintiff in the Stocks , and thereupon the said Samuel , John , and Thomas , convey'd the Plaintiff fromwards the way to the said Richard Baughes Iustice of the Peace , and about Eleven of the Clock of the same day in the morning , put the Plaintiff in the Stocks .

8. They find the Act of 21 Jac. particularly cap. 12. And the Recital therein of the Act of 7 Jac. cap. 5. being an Act intitled , An Act for easie pleading against troublesome and contentious Suits against Justices of the Peace , Mayors , Constables , &c.

9. And find particularly . That it was Enacted by the said Parliament , Quod si aliqua Actio , Billa , &c.

10. But whether upon the whole matter by them found , the said Sir Richard Coxe Baronet , John , and Thomas are Culpable , they know not . Et petunt advisamentum Curiae in Praemissis .

11. And if upon the whole matter so found , the Court shall think quod actio praedicta possit commensari in London . Then they find the said Richard Coxe Baronet , John , and Thomas Culpable of the Trespass , and assess damages to One hundred Marks , and Costs to Three and fifty shillings and four pence .

12. But if the said Court be of Opinion , That the aforesaid Action could only be laid in the County of Gloucester , then they find the said Richard Coxe Baronet , John , and Thomas not Culpable .

The words of the Act of 21 Jac. cap. 12. and which are particularly found by the Iury , are

1. That if any Action , Bill , Plaint , or Suit upon the Case , Trespass , Beating , or False Imprisonment , shall be brought against any Justice of the Peace , Mayor , or Bayliff of City , or Town Corporate , Headborough , Portreeve , Constable , Tithingman , &c. or any of them , or any other , which in their Aid or Assistance , or by their Commandment , shall do any thing touching or concerning his or their Office or Offices , for or concerning any matter , cause , or thing , by them or any of them , done by virtue or reason of their , or any of their Office or Offices . That the said Action , Bill , Plaint , or Suit , shall be laid within the County where the Trespass or Fact shall be done and committed , and not elsewhere .

2. And that it shall be lawful to every person and persons aforesaid , to plead the general Issue , and to give the special matter in evidence . As by the Act of 7 Jac. cap. 5.

3. That if upon the Tryal of any such Action , Bill , Plaint , or Suit , the Plaintiff therein shall not prove to the Jury , Trespass , Beating , Imprisonment , or other Fact or cause of Action , Bill , Plaint , &c. was or were had , made , or committed within the County wherein such Action , Bill , Plaint , or Suit , shall be laid , That then the Jury shall find the Defendant or Defendants , in every such Action , Bill , Plaint , or Suit , Not guilty , without having any regard or respect to any Evidence given by the Plaintiff touching the Trespass , or other cause of the Action , Bill , Plaint or Suit , &c.

4. If Verdict shall pass with the Defendant or Defendants , or if the Plaintiff therein become Non-suit , or suffer any discontinuance thereof , the Defendant or Defendants , shall have such double Costs and other Advantages , as by the Act of 7 Jac. cap. 5. is provided .

The first Question upon this Special Verdict , is

Whether if any Officer in the Act mentioned , or any in his assistance , shall do things , by colour of their Office , not touching or concerning their said Office , and shall be therefore impleaded ? Or if they , or any of them shall be impleaded for or concerning any matter , cause , or thing by them , or any of them , done by pretence of their Offices , and which is not strictly done by virtue or reason of their Office , but is a misfeasance in Law , shall have the benefit of this Act , of having the matter tryed in the County where the Fact was done , and not elsewhere ?

If so ,

1. They shall not have the Tryal for any matter touching their Offices in the County where the Fact was done , unless the Plaintiff please to lay it there , and if he so pleas'd , it might have been laid there before the Act of 21. which was purposely made to compel the laying of the Action where the Fact was done .

2. By such Exposition of the Act , the Action shall never be laid where the Fact was done ; for if it may be laid elsewhere at all , if it be found upon the Tryal , That the Officers question'd did not according to their Office , there will be no cause to lay the Action in the proper County ; for the Iury where the Action is laid , will find for the Plaintiff for the Misfeazance ; and if it be found the Defendants have pursued their Office , wherever the Action is laid , the Iury will find for the Defendants , and then no cause to lay an Action in the County where the Fact was done ; So Quacunque via data , the Act will be useless .

3. If it can be laid in another County , without hearing Evidence , it cannot be known whether the Officer hath misdone , or not . How then can the Iury ( as the Act directs ) find the Defendants Not guilty , without regard or respect to the Plaintiffs Evidence ; for then the Iury must regard the Evidence , to find whether the Officer hath mis-done , and not regard the Evidence at all , to find the Officers Not guilty , as the Act doth order .

Nor is there any inconvenience , because by the Intention of Law , whether the Officers have done justifiably , or not , without this Act of 21. the Action ought to be laid where the Fact was done ; and the Act is but to compel the doing of that where an Officer is concerned , that otherwise fieri debuit , though factum valet not being done .

The second Question is , Whether upon the special points referred to the Court by the Iury , they have found all the Defendants , or any of them , and whom , Not guilty ?

It hath been admitted at the Barr , That the Defendants , excepting Sir Richard Coxe , cannot be found culpable by this Act of 21. and it being a Trespass , that some may be guilty , and not others ; which is true .

But the Question is not , Whether some of the Defendants might have been found guilty , and others not ? but whether , as this Verdict is , all or none must be Culpable .

1. The Iury referr to the Court , Si actio praedicta potuit commensari in London , then they find all the Defendants culpable . And if actio praedicta potuit commensari tantummodo in the County of Gloucester , then they find all the Defendants by name , Not Culpable .

So as the matter is , Whether this individual Action brought joyntly against all the Defendants , might be laid in London ? For that is the Actio praedicta , not whether an Action might be laid in London for the Trespass against any of these Defendants ? and in that first sense , Actio praedicta , could not be in London ; for it could not be there laid , as to some of the Defendants .

2. Secondly , they referr to the Court , Whether Actio praedicta , which is this Action , jointly brought against all the Defendants , could only be laid in the County of Gloucester ; and if so , they find for the Defendants ; to which the Court must answer , That this Action , so jointly brought , could only be laid according to Law , ad omnem Juris effectum , in the County of Gloucester .

3. Thirdly , if the Court should be of Opinion , That the Action was well laid , as to Sir Richard Coxe , but not the rest , the Iury find not him Guilty , and not the rest ; for they find all equally Guilty , or equally not Guilty .

4. Fourthly , That which differs his Case from the rest , is , That he was not assistant or aiding to the Constable ; for he bad , that is , praecepit , or commanded the Constable to put the Plaintiff in Cippis .

But as to that , the ancient Law was both adjudg'd in Parliament , and allowed , That it was contra consuetudinem Regni , that a man should be condemn'd in a Trespass , De praecepto or auxilio , if no man were convicted of the Fact done .

It was the Case in Parliament of Bogo de Clare , 18 E. 1. John Wallis Clerk , entred his House , and brought Letters of Citation from the Arch-bishop of Canterbury : Some of the Family of Bogo made Wallis eat the said Process and Wax thereto affixed , Et imprisonaverunt & male tractaverunt : For which , and the Contempt to the King , he brought his Action against Bogo ; who pleaded , That he named no persons in certain , nor alledg'd that the Fact was done by his command , and demanded Iudgment thereupon , and was discharged .

Notwithstanding , by the Kings pleasure , for so enormous a Trespass , done in Contempt of the Church , for the Contempt done within the Verge , and in time of Parliament , and for the bad Example ,

Bogo was commanded to answer the King of the Trespass done in his House , Et per Manupastos & Familiares suos ; and a day given him to produce before the King and his Council , those of his Family : which was accordingly done , but they who were said to have done the Fact , were fled .

Et super hoc idem Bogo perit Judicium , si de Praecepto , missione vel assensu , si sibi imponeretur ad sectam Domini Regis respondere debeat , antequam factores principales , aliquo modo de facto illo convincantur . Whereupon Iudgment was given . Et quia per consuetudinem & legem Angliae , Nullus de praecepto vi & auxilio aut missione respondere debeat antequam factores aliquo modo convincantur ; Consideratum est quod praedictus Bogo ad praesens eat inde sinedie , & praedictus Jo. le Wallis sequatur versus factores principales prout sibi viderit expediri si voluerit , & six persons manuceperunt praedictum Bogonem ad habendum ipsum coram Domino Rege ad respondendum ipsi Domino Regi ad voluntatem suam , cum praedicti factores de facto illo fuerint convicti , si Dominus Rex versus eum inde loqui voluerit .

A Iudgment in Parliament , at the Kings Suit , That it was against the Custome and Law of the Kingdom , to convict a man , de praecepto , auxilio , aut missione , in a Trespass , before some , who did the principal Trespass , were convicted .

And the reason of that Law is very pressing , for else a man may be found Culpable of aiding or precepting a Trespass to be done , when the doers of the Trespass are acquitted , and not Culpable , which is to be Culpable of aiding the doing of a thing never done , which is impossible .

It will be said , The Law in that Case is since alter'd , and otherwise practis'd . But who could alter a Law affirm'd by Judgment in Parliament , to be the Custome and Law of the Kingdome , without an Act of Parliament to alter it , which was not ; or at least an Error in another Parliament , if that might be , which is not so clear .

For this is not like a Judgment given in one Court , and after contraried in another , or in the Chequer Chamber . Any Law of the Kingdom might as well be alter'd without Act of Parliament , as this :

5. However letting that pass ; but as the Law is now taken , no man can be guilty of aid or assistance to a Trespass not done , and which is the same whereof the Actors are acquitted .

But in this Case , They that put the Plaintiff in the Stocks are found not Guilty , and another Defendant found Guilty for bidding him be put in the Stocks .

6. Another reason is , That Coxe cannot be Culpable of a Trespass , which cannot , or must not be proved ( which is the same ) But by the Statute no regard or respect is to be had of the Evidence proving the Trespass , if the Fact be not proved to be done where the Action is laid : Therefore there can be no Evidence against Coxe , for Evidence not to be regarded , and not at all , is the same .

7. If the other Defendants cannot by the Statute be found Culpable , because they were aiding and assisting the Constable , though in an undue execution of his Office , no more can Coxe : For aid or assistance may be by direction or precept , as well as by corporal strength : And therefore , if they be free for assisting to put the Plaintiff in the Stocks forcibly , Coxe is free for advising and bidding him be put there directively .

8. Lastly , the Statute intends like benefit to the Defendants , when the Fact is not proved to be done where the Action is laid ; as if the Plaintiff became Nonsuit , or suffer'd a discontinuance . But in case of Nonsuit or Discontinuance , all the Defendants were to have their double Costs both by 7 and 21 Jac. for a Nonsuit or Discontinuance cannot be against some of the Defendants , for the Nonsuit and Discontinuance are of the entire action . Therefore here all the Defendants shall have double Costs .

And if the Iury had not meant the Defendants equally free , or equally faulty , they would have added in their Verdict , That if upon the whole matter found , the Court should think that Actio praedicta would lye in London against some of the Defendants , and not others , then they found such against whom it might be laid in London Culpable , and the rest not Culpable .

The Record is , Et praedictus Richardus Coxe Miles , Except . accersivit the Constable , whereas there is no praedictus Richardus Coxe Miles , but Baronettus ; and there is another praedictus Richardus Coxe Arm●ger , which makes the Verdict incertain in this point .

Quaerens nil Capiat , &c.

Pasch. 21 Car. II. in Banc. William Hayes Plaintiff , and Charles Bickerstaff Defendant , In Arrest of Judgment .

CHarles Bickerstaff being possessed of a long term of years in certain Woodlands and Copces in Cobham , in the County of Kent , Demis'd , Sett , and to Farm lett the same for Six years , parcel of his term to the Plaintiff , under a Rent and other Reservations , and Covenanted ; The Plaintiff keeping and performing the Agreements of his part to be kept and performed .

Quod praedictus Willielmus Hayes legitime haberet , teneret , & gauderet , & habere , tenere , & gaudere , potuisset praedicta , dimissa , praemissa juxta conventionem praeantea ; in & per Indenturam praedict. dimiss . absque aliquo impedimento , perturbatione , evictione , vel interruptione quibuscunque de vel per dictum Carolum Bickerstaff Executores , Administratores , vel Assignatos suos , aut aliquem eorum prout per Indenturam praedictam plenius apparet .

That by virtue of the said Demise he entred , and was posses'd , and that after , the Defendant being possess'd for a longer term , granted the Reversion to Charles Duke of Lenox , to whom the Plaintiff atturn'd ; and that afterwards the said Duke , and others by his command , entred upon the Plaintiff , although he observ'd all Agreements of his part , and carried away many Loads of Faggots and Wood , and kept , and still keeps him out of Possession , to his Damage of Eight hundred pounds .

And brings his Action for breach of the Covenant aforesaid .

The Defendant pleads Enjoyment according to the Demise , and Traverseth the Grant of the Reversion to the Duke , Modo & Forma .

All Covenants between a Lessor and his Lessee , are either Covenants in Law , or Express Covenants .

By Covenant in Law , the Lessee is to enjoy his Lease against the lawful Entry , Eviction , or Interruption of any man , but not against tortious Entries , Evictions , or Interruptions , and the reason of Law is solid and clear , because against tortious acts the Lessee hath proper Remedy against the wrong doers .

So are the express Books of 22 H. 6. 22 H. 6. f. 52. b. 32 H. 6. f. 32 b. N. Br. ●45 . b. Letter L. where a man leas'd by Deed-poll without express Covenant , and 32 H. 6. where the Lease was by Deed Indented .

If the Lessor seaseth the term by Deed-poll , Nat. Br. and outeth the Lessee , he shall have a Writ of Covenant upon that Deed-poll , although he hath no Indenture of it . But if a stranger , who hath no right , outs the Lessee , then he shall not have a Writ of Covenant against the Lessor , because he hath remedy by Action against the stranger ; but if a stranger enter by elder Title , then he shall have a Writ of Covenant , for he hath no other Remedy .

This shews the Law gives not Remedy to the Lessee upon the Covenant , when he hath a proper and natural Remedy against another who doth the wrong .

By the same Reason , if the Lessee be by express Covenant to enjoy his term ( or enjoy it against all men , which is the same ) he shall not have an Action of Covenant against the Lessor , unless he be legally outed or evicted : For if he be outed tortiously by any stranger , he hath his Remedy .

So is the express Book of 26 H. 6. f. 3. b. where it is agreed , That the warranty of a Lease for years , is but an Action of Covenant , which extends not to tortious Entries for the former Reason .

Yet I agree , If the Lessor expresly Covenants that the Lessee shall hold and enjoy his term without the Entry or Interruption of any , whether such Entry or Interruption be lawful or tortious ? There the Lessor shall be charg'd by an Action of Covenant for the tortious Entry of a stranger , because no other meaning can be given to his Covenant .

Accordingly the new Authorities run grounded upon that sound and ancient Reason of Law , That the Lessor shall not be charg'd with an Action upon his express Covenant for enjoyment of the term against all men , where the Lessee hath his proper Remedy against the wrong doer .

Against this Truth there is one Book that hath , or may be pretended , which I will cite in the first place , because the Answer to it may be more perspicuous from the Authority I shall after deliver to redargue that Case .

Dyer , 15 , 16 Eliz. 328. a. pl. 8. It is the Case of Mountford and Catesby in the Lord Dyer . Catesby , in consideration of a Sum of mony and a Horse , made a Lease to Mountford for term of years , Et super se assumpsit , quod the Plaintiff Mountford pacifice , & quiete haberet & gauderet , the Land demis'd durante termino sine evictione & interruptione alicujus personae ; after Catesby's Father entred upon him and so interrupted him ; whereupon Mountford brought his Action upon this Assumpsit , and Catesby pleaded he did not assume , and found against him . It was moved in Arrest of Judgment for the Defendant , That the entry might be wrongful , for which the Plaintiff had his Remedy , but disallowed , and Iudgment affirmed for the Plaintiff ; because , saith the Book , it is an express presumption and assumption , that the Plaintiff should not be interrupted : And this Case is not expresly denied to be Law in Essex and Tisdales Case in the Lord Hobart , as being an express Assumption .

Though the Lord Dyers Case be an Action of the Case upon an Assumpsit , and out Case an Action of Covenant ; yet in the nature of the Obligation there seems no difference , but in the form of the Action : For to assume that a man shall enjoy his term quietly , without interruption , and to covenant he shall so enjoy it , seems the same undertaking .

But if the reason of Law differ in an Assumpsit from what it is in a Covenant , as seems implyed in Tisdales Case , then this Case of the Lord Dyer makes nothing against the Case in question , which is upon a Covenant , not an Assumpsit .

Hob. f. 34 , 35. 1. Elias Tisdale brought an Action of Covenant against Sir William Essex , and declared , That Sir William convenit , promisit , & agreavit , ad & cum praedict. Elia quod ipse idem Elias haberet , occuparet , & gauderet , certain Lands for Seven years , into which he entred , and that one Elsing had Ejected him , and kept him out ever since . Resolv'd because no Title is laid in Elsing , he shall be taken to enter wrongfully , and the Lessee hath his Remedy against him . Therefore adjudg'd for the Defendant Essex .

Here is a Covenant for enjoying during the term , the same with enjoying without interruption ; ( for if the enjoyment be interrupted , he doth not enjoy during the term ) the same with enjoying without any interruption , the same with enjoying without interruption of any person ; which is the Lord Dyers Case , but here adjudg'd the interruption must be legal , or an Action of Covenant will not lye , because there is remedy against the Interrupter . So is there in the Lord Dyer's Case .

And a Rule of that Book is , That the Law shall never judge that a man Covenants against the wrongful acts of strangers , unless the words of the Covenant be full , and express to that purpose : which they are not in our present Case , because the Law defends against wrong .

Brocking brought an Action upon an Assumpsit against one Cham , and declared , Brocking versus Cham , Cr. 15 Jac. f. 4. 5. p. 10. That the Defendant assumed the Plaintiff should enjoy certain Lands according to his Lease , without the lett , interruption , or incumbrance of any person ; and shews in Fact , That this Land was extended for Debt due to the King by process out of the Exchequer , and so incumbred . After Verdict for the Plaintiff , it was moved in Arrest of Iudgment , That no good breach was assigned , because he did not shew that the Incumbrance was a lawful Incumbrance , for else he might have his Remedy elsewhere , and Iudgment was given for the Defendant .

This Case was upon an Assumpsit , as the Lord Dyers was , and by as ample words ; for the Land was to be enjoyed without any lett , which is equivalent to the words of quiete & pacifice , in the Lord Dyers Case ; which is a Case in terminis , adjudged contrary to that in the Lord Dyer , and upon the same reason of Law in an Assumpsit , as if it had been a Covenant , viz. because the Plaintiff had his Remedy against the wrong doer .

Chauntfloure brought an Action of Covenant against one Pristly and Doctor Waterhouse , as Executors of John Mountfitchett , Cr. 45 El. f. 914. pl. 4. and declared , That the Testator had sold him Nine and twenty Tuns of Copras , and agreed , That if the Testator faild of payment of a certain Sum of mony upon a day certain , That the Plaintiff might quietly have and enjoy the said Copras , that the money was not paid at the day , and that he could not have and enjoy the said Nine and twenty Tuns of Copras ; Iudgment was given by Nihil dicit against the Defendants , and upon a Writ of Enquiry of Damages , 260 l. Damages given : Vpon motion in Arrest of Iudgment , It was resolved by the whole Court , That the breach of Covenant was not well assign'd , because no lawful disturbance was alledg'd , and if he were illegally hindred or disturbed of having the Copras which he had bought , he had sufficient remedy against the wrong doers .

Dod was bound in an Obligation to Hammond , conditioned that Hammond and his Heirs might enjoy certain Copyhold Lands surrendred to him . The Defendant pleaded the Surrender , and that the Plaintiff entred , and might have enjoyed the Lands : To which the Plaintiff replyed , That after his Entry , one Gay entred upon him , and outed him ; It was adjudg'd the Replication was naught , because he did not shew that he was evicted out of the Land by lawful Title ; for else he had his Remedy against the wrong doer .

This was in an Action of Debt upon a Bond , condition'd for quiet enjoyment : So as neither upon Covenant , upon Assumpsit , or Bond condition'd for quiet enjoying , unless the breach be assign'd for a lawful Entry or Eviction , ( and upon the same reason of Law , because the lessee may have his Remedy against the wrong doers ) an Action of Covenant cannot be maintain'd .

Cok. 4 Rep. Nokes's Case . To these may be added a Resolution in Nokes his Case in the fourth Report , where a man was bound by Covenant in Law , That his Lessee should enjoy his term , and gave Bond for performance of Covenants , in an Action of Debt brought upon the Bond ; the breach was assign'd , in that a stranger had recover'd the Land leas'd in an Ejectione firmae , and had Execution , though this Eviction were by course of law , yet for that an elder and sufficient Title was not alledg'd upon which the Recovery was had , it was no breach of the Covenant .

Inconveniencies if the Law should be otherwise .

1. A mans Covenant , without necessary words to make it such , is strain'd , to be unreasonable , and therefore improbable to be so intended ; for , it is unreasonable a man should Covenant against the tortious acts of strangers , impossible for him to prevent , or probably to attempt preventing .

2. The Covenantor , who is innocent , shall be charg'd , when the Lessee hath his natural Remedy against the wrong doer : And the Covenantor made to defend a man from that from which the Law defends every man , that is , from wrong .

3. A man shall have double Remedy for the same injury against the Covenantor , and also against the wrong doer .

4. A way is open'd to damage a third person ( that is the Covenantor ) by undiscoverable practise between the Lessee and a stranger , for there is no difficulty for the Lessee secretly to procure a stranger to make a tortious Entry , that he may therefore charge the Covenantor with an Action .

Application of the Reason of Law to the Case in Question .

1. When a man Covenants his Lessee shall enjoy his term against all men , he doth neither expresly covenant for his enjoyment against tortious Acts , nor doth the Law so interpret his Covenant .

So here , when the Lessor Covenants the Lessee shall enjoy against his Assigns , he doth not covenant expresly against their tortious acts , nor ought the Law to interpret that he doth , more than in the other Case .

2. It is as unreasonable he should Covenant against the tortious Entries of his Assigns , as against the tortious Entries of all other strangers ; For he hath no prospect , who of his Assigns may wrongfully Eject his Lessee , more than what other stranger may do it , nor any power to prevent the tort of the one , more than of the other , as being equally unknown to him . Nor is there any sensible difference to be found , where a man Covenants his Lessee shall enjoy quietly against all the Johns and all the Thomasses in the world , than where against all men ; for though the one Covenant be narrower than the other , yet the Covenantor can no more prevent the wrongs may be done by the Johns and Thomasses , than he can the wrongs may be done by any man : Nor can the Covenantee fear more a wrong to be done by them , than by any other person not so named .

3. If the Assignee of the Lessor enters tortiously upon the Lessee , he hath his proper and natural Remedy equally against him , as against any other stranger that so doth .

4. If the Lessee may charge the Covenantor with an Action in this Case , for his Assignees tortious Entry , then he may be doubly satisfied for the same Damage ; viz. by the Covenantor upon his Covenant , and by the Assignee for his Trespass , which the Law permits not , but in rare Cases , and upon special Reasons .

5. The Lessee may as well combine with some remote Assignee of the Lessors to make a wrongful Entry , to the end to charge the Covenantor therewith upon his Covenant , as with any other stranger .

6. Lastly , by the very words of this Covenant , the Lessor cannot be charg'd with breach of Covenant for the tortious Entry or Interruption of his Assignee . The words are , That the Lessee should lawfully , legitime haberet , teneret , & gauderet , & tenere , & gaudere potuisset , the Premisses without the Lett , Interruption , &c. of the Defendant , his Executors , Administrators , and Assigns .

If the Lessor were to be charg'd with the tortious Acts of his Assigns , there needed no more ( if those words would do it ) than to say , That the Lessee should have , hold , and enjoy the Lands demis'd , without interruption of the Lessor , his Executors , Administrators ; and the word lawfully was useless and sensless in the Covenant also .

But when it is said , That he should and might lawfully have , hold , and enjoy it against the Lessor , his Executors , Administrators , and Assigns , What other meaning can be given the words , than that he might , according to Law , enjoy it , and that the Lessor , his Executors , Administrators , or Assigns , should not have power lawfully to hinder him ?

For a man then is said to enjoy a thing lawfully , when no man lawfully can hinder his enjoying it .

So as by all the Authorities cited by all the Reasons of Law anciently and modernly , and by the particular words of the Covenant in question , the Defendant cannot be charg'd with breach of his Covenant for the tortious Entry of his Assignee upon the Plaintiff .

A Replevin brought , and the beasts retorn'd Elongata , whereupon there was a Capias in Withernam , and Nine Oxen taken , the Plaintiff in the Replevin gave the Sheriff's Bailiff a Bond of Ten pounds to save him harmless for those Oxen ; the Defendant in the Replevin , whose Beasts they were , brought a Detinue against the Bailiff , and thereupon he sued his Bond for his Damage , in being distrain'd in the Detinue ; this appearing to the Court , and Judgment demanded in the Action of Debt . Brintsley said , Quides vous que il doit Defender encounter touts le Mond , non ferra ne encounter null Action , aut quel vous poies aver droiturel defence sans luy per la ley per que avises vous , and so was the general Opinion , but it was not adjudg'd .

The Difference between this Covenant and a general Covenant against all men .

1. It is said this is not a general Covenant to enjoy against all men , wherein the Law is clear , but rather a Covenant against particular men .

2. That there is Authority , That if a man Covenant for quiet Enjoyment against a particular person , that Covenant shall extend to the tortious , as well as legal Entries , of such particular person .

The Covenant in question is no particular Covenant , though it be not the most general ; no more is a Covenant to enjoy against all of the names of Thomas and John , or against all men now living , or against all claiming under the Covenantor , yet no man conceives it more rational to charge the Covenantor for tortious Entries done by such , than for the tortious Entries of men of any other name . And it is as uncertain to the Covenan●or and Covenantee , who , are Assignees ; or what Assignee of the Lessor will make a tortious Entry , as what other man will do it .

But not so of a particular person , who is in the Covenantors prospect , to prevent , and the Covenantees to fear .

1. In a Covenant for Enjoyment against all men , a man Covenants for enjoyment against himself , Executors , Administrators and Assigns ( for they are a part of all men ) but not against their tortious Entries , more than against all other mens tortious Entries .

If a man Covenant for enjoyment against his Executors , Administrators , and Assigns , and all others , it is not a different Covenant from that of enjoyment against all men ; for a mans Executors , Administrators , and Assigns , and all others , are all men .

So if a man Covenants for enjoyment against A. B. and C. and all others , it is the same as to Covenant for enjoyment against all men ; for A. B. and C. and all others , are all men : Therefore that difference that this is not a general Covenant , is , Differentia soni non ponderis , and hath no reason of Law to diversitie it from a general Covenant .

Objections .

It was smartly objected by my Brother Broome , If the Lessor shall not be charg'd upon his Covenant for the tortious Entry of his Assignee by this express Covenant , then is the Covenant useless ; for by a Covenant in Law upon the Lease it self , he was to be charg'd for a legal Entry made by his Assignee , if this Covenant had not been at all .

I Answer , It is not necessary the Lessor and Lessee should understand what are Covenants in Law , and therefore they might impertinently make an express Covenant which they understood , which was already supplyed by an implyed Covenant , which they understood not .

As where a Feoffment is made by Dedi & concessi , which is a warranty in Law , it is not rare to have an express warranty of the same extent with the warranty in Law .

But there is a more close and solid reason why they are named in the Covenant ; for if they had not been express'd , the Demise it self had been a Covenant in Law against the legal Interruptions , both of them , and all men else . But by expressing a Covenant against them , the general Covenant against all men , is thereby restrain'd , and not inlarg'd against them ; for now the Lessor hath covenanted for enjoyment against the legal Evictions of himself , his Executors , Administrators , and Assigns , and of no other .

This was clearly resolv'd in Nokes his Case , where a man by his Deed granted and demis'd certain Lands for years , which Demise imported in it self a Covenant in Law , and he further expresly Covenanted for Enjoyment against himself , and all others , claiming from or under him , which express Covenant was narrower than his Covenant in Law and gave Bond for performance of Covenants . Two points were resolv'd :

1. That this Bond extended to the Covenant in Law .

2. That by the express Covenant the Covenant in Law was restrain'd , by Popham's Opinion , and all the Court.

3. It was agreed that the same had been resolv'd before about 14 El. in the Case of one Hamond . And Sir Ed. Coke in the close of the Case , saith , Much inconvenience would else happen against the intention of parties . The express Covenants in Deeds being different from the Covenants in Law usually .

4. It is there agreed , That it is not so in real Warranties as in Covenants , but it is at choice to take the Warranty in law , or the express Warranty .

Another Objection is upon the Case in 46 E. 3. 46 E. 3. f. 4. where the Lessor outed his Lessee for years , and infeoffed another of the Land , who held him out . It is agreed , That the Lessee may have a quare ejecit infra terminum against the Feoffee , yet his Action was good against his Lessor : But this Case makes nothing to the present Case .

For at the Common Law the Lessee had no Action but of Covenant against his Lessor , or an Ejectione firmae , at his choice .

The Quare Ejecit infra terminum is given by the Statute of Westminster 2. cap. 24. for recovery of his term against the Feoffee ; for an Ejectione firmae lies not against him because he came to the Land by Title of Feoffment , and not by tort : And this new Remedy by Statute takes not away the ancient at Common Law , but the Common Law gives not two Satisfactions for the same Injury , as it would if the Covenantor and the Trespassor were both charg'd to answer the Lessee , and so the Book resolves .

The Book of 2 E. 4. f. 15. may be objected , A man infeoffed another , and entred into Bond to warrant and defend the Land for twelve years : Two Iudges , the Court rising , seemed to doubt whether the word defend might not extend to defend from Entries , &c.

The difference some take of a Covenant to enjoy against one or more particular men , and to enjoy against all men ; as if in the first Case the Covenantor were to be charg'd for the tortious Entries of particular men , but not where the Covenant is against all men , I understand not . As if all particular men , could they be enumerated , were not the same with all men ; and as if some particular men were not a part of all particular men ; and the reason of Law is the same for one as for all ; the party hath his Remedy against the wrong doer , and the Covenant meaning no more whether against one or all , than that the Lessee should have an indefeasible Title in Law , and being but in nature of a Warranty .

The Case which gave colour to this Opinion , That if a man covenants for enjoyment against a particular person or persons , that he covenants as well against their tortious Entries as legal .

The Case of Wilson and Foster against Leonard Mapes 32 El. remembred in Tisdels Case in the L. Hob. and reported by Crook . Hob. f. 35. Cro. 32 El. f. 212. pl. 4.

Mapes made a Lease of the Parsonage of Brankister to Wilson and Foster for a year , and covenanted to save them harmless for that years profits , against one Blunt then Parson of Brankister ; who entred upon them , and took the Tithes .

In an Action of Covenant brought against Mapes by Wilson and Foster , though they did not set forth any good Title in Mr. Blunt for that years profits , it was judg'd for the Plaintiffs , because , saith the Lord Hobert , the Covenant was to save them harmless for that years profits , against such a man particularly .

Which imported they should not be damnified in that years profits by Blunt , which was more than to warrant the Title , for Blunt might go beyond the Seas , dye insolvent , and so prevent them of their Remedy for the profits .

So in Crook it is said , That the Covenant being against a particular man , it extends to his tortious Entries arguendo , but there it appearing that Blunt was Parson of the Rectory , the Court was of Opinion that his Entry was legal and good , and therefore the Covenantor , in that Case , was charg'd for a legal Entry , and not a wrongful . So is the Book express in the end of the Case .

If a man upon sale of Land refuses to give a general Warranty against all men , but narrows his Warranty , and gives only against him and his Heirs , this alters not the nature of the Warranty ( as to make him any way answer for tortious Entries , or to subject him to any thing more than his Warranty against all men subjected him : So in a Covenant upon a Lease for Enjoyment against him and his Assigns , which ( is in the nature of a Warranty for a Chattel ) he shall not otherwise be charg'd by his Covenant , than if he had covenanted , that is , warranted , against all men .

Hill. 22 & 23 Car. II. C. B. Rot. 680. William Shute Plaintiff , John Higden Defendant , In Trespass and Ejectment .

THE Plaintiff declares , That Hugh Ivy Clerk , the Tenth of May , 22 Car. 2. at Wringlington demis'd to the said William , One Messuage , Twenty Acres of Land , Twenty Acres of Meadow , Twenty Acres of Pasture , with the Appurtenances in Wringlington ; And also the Rectory and Parish Church of Wringlington , Habendum to the said William and his Assigns , from the Fifth day of May aforesaid , for the term of Five years next ensuing .

By virtue whereof he entred into the said Tenements and Rectory , and was possess'd , until the Defendant the said Tenth day of May , in the said year , entred upon him , and Ejected him , to his Damage of Forty pounds .

The Defendant , by words of course , pleads he is not Culpable , and Issue is joyn'd , and the Verdict was taken by Default of the Defendant , and the Jury find specially .

Upon the Special Verdict , the Case appears to be this ,

John Higden the Defendant , was lawfully presented , admitted , instituted , and inducted into the Rectory of Wringlington in the County of Somerset , and Dioces of Bath and Wells , in February 1664. being a Benefice with Cure of Souls , and of clear yearly value of Fifty pounds per Annum , and in the King's Books of no more than Five pounds yearly , and that the Premisses demis'd were time out of mind , and yet are , parcel of the said Rectory .

That the said John Higden , being lawful Incumbent of the said Church and Rectory of Wringlington , the One and thirtieth of March , 1669. was lawfully presented , admitted , instituted , and inducted into the Rectory of Elme in the said County and Dioces , being a Benefice with Cure of Souls also of clear yearly value , ultra reprisas , of Forty pounds per Annum , and of the value of Ten pounds per Annum in the King's Books , and subscribed the Articles of Religion according to the Act of the Thirteenth of the Queen , 13 El. cap. 12. and was lawful Incumbent of the said Rectory of Elme , but after did not read the Articles of Religion within two Months after his Induction in the Church of Elme , according to the Act of 13 Eliz.

Primo Maii 1669. Hugh Ivy , Lessor of the Plaintiff , was lawfully presented , admitted , instituted , and inducted into the Rectory of Wringlington , as suppos'd void , and performed all things requisite for a lawful Incumbent of the said Rectory to perform , both by subscribing and reading the Articles of Religion , according to the Statute of 13 Eliz.

And that he entred into the said Rectory and Premisses , and made the Lease to the Plaintiff , as in the Declaration .

That the said Higden the Defendant , did enter upon the Plaintiff the said Tenth of May , 1669. as by Declaration .

The Questions spoken to at the Barr , in this Case , have been two .

1. Whether the Rectory of Wringlington , being a Benefice with Cure , and of clear yearly value of Fifty pounds , and but of Five pounds in the King's Books , shall be estimated according to Fifty pounds per Annum , to make an Avoidance within the Statute of 21 H. 8. by the Incumbents accepting another Benefice with Cure ?

But that is no Question within this Case ; for be it of value or under value , the Case will be the same .

2. Whether not reading the Articles according to the Statute of 13 Eliz. within two Months after induction into the Church of Elme , shall exclude Higden not only from the Rectory of Elme , but from the Rectory of Wringlington ? which is no point of this Case : For whether he read or not read the Articles in the Church of Elme , he is excluded from any right to the Church of Wringlington .

For this Case depends not at all upon any Interpretation of the Statute of 21 H. 8. of Pluralities ; but the Case is singly this ,

Higden being actual and lawful Incumbent of Wringlington , a Benefice with Cure , be it under the value of Eight pounds yearly , or of the value , or more , accepts another Benefice with Cure ( the Rectory of Elme ) and is admitted , instituted , and inducted lawfully to it , be it of the value of Eight pounds or more , or under .

The Patron of Wringlington within one month after admission institution , and induction of Higden , the Incumbent of Wringlington to the Rectory of Elme , presents Hugh Ivy , the Plaintiffs Lessor to Wringlington , who is admitted , instituted , and inducted thereto the same day , and after , as by the Declaration , enters and makes a Lease to the Plaintiff , who is Ejected by the Defendant Higden .

The Doubt made by the Iury , is , if Higdens Entry be lawful .

It hath been resolv'd in Holland's Case , and likewise in Digby's Case , in the Fourth Report , and often before , since the Council of Lateran , Anno Dom. 1215. Under Pope Innocent 3. Digby's Case . Vid. Bon. C. pur Pluralities . Anderson 1. part . f. 200. b.p. 236 Vid. Moore 's Rep. a large Case to the same effect , viz. Holland & Digby's Case . That if a man have a Benefice with Cure , whatever the value be , and is admitted and instituted into another Benefice with Cure , of what value soever , having no qualification or dispensation , the first Benefice is ipso facto , so void , that the Patron may present another to it if he will .

But if the Patron will not present , then if under the value , no lapse shall incurr until deprivation of the first Benefice , and notice ; but if of the value of Eight pounds , or above , the Patron , at his peril , must present within Six months , by 21 H. 8.

As to the Second Question , Whether the Defendants , not reading the Articles in the Church of Elme , within two months after his induction there , have excluded him not only from being Incumbent of Elme , but also from Wringlington ? The Answer is ,

First , His not reading the Articles in the Church of Elme , according to the Statute of 13. is neither any cause of , nor doth contribute to his not being still Incumbent of Wringlington ; though , as his Case is , he hath no right to the Rectory of Wringlington , since the admission , institution , and induction of Hugh Ivy , the Plaintiffs Lessor , into it , as hath already appear'd .

Secondly , As for the Rectory of Elme , although it doth not appear that the Patron of Elme hath presented , as he might have done , or perhaps hath , any other Clerk ; or that any other is admitted and instituted into that Church , yet Mr. Higden can be no Incumbent there , nor can sue for Tithes , nor any other Duty ; because , by not reading the Articles , he stands depriv'd ipso facto .

For clearing this , certain Clauses of the Act of 13 Eliz. are to be open'd .

The first is ;

Every person , after the end of this Session of Parliament , to be admitted to a Benefice with Cure , except that within two Months after his induction , he publickly read the said Articles in the same Church whereof he shall have Cure , in the time of Common-prayer there , with Declaration of his unfeigned assent thereto , &c. shall be upon every such Default , ipso facto , immediately depriv'd .

There follows , relative to this Clause ,

Provided always , That no Title to conferr or present by lapse , shall accrue upon any deprivation , ipso facto , but after six Months after notice of such deprivation given by the Ordinary to the Patron .

By these Clauses immediately upon not reading the Articles , according to the Statute , the Incumbent is depriv'd ipso facto .

And the Patron may presently , upon such Deprivation , present if he will , and his Clerk ought to be admitted and instituted , but if he do not , no lapse incurrs until after six months after notice of the Deprivation given to the Patron by the Ordinary , who is to supply the Cure until the Patron present .

Another Clause of the Statute is , No person shall hereafter be admitted to any Benefice with Cure , except he then be of the Age of Three and twenty years at the least , and a Deacon , and shall first have subscribed the said Articles in the presence of the Ordinary , &c.

And relative to this Clause there is a third , That all Admissions to Benefices , Institutions , and Inductions of any person , contrary to any provision of this Act , shall be utterly void in Law , as if they never were .

Now though the Church of Wringlington became void immediately , of what value soever it were , by admission and institution of the Defendant into the Church of Elme , by the ancient Canon Law receiv'd in this Kingdom , which is the Law of the Kingdom in such Cases , if the Patron pleas'd to present .

And for that the Patron accordingly did within a month after the Defendants Admission and Institution into the Rectory of Elme , present his Clerk , Hugh Ivy , to the Church of Wringlington , who was thereto Admitted , Instituted , and Inducted within that time , which was a month before the Defendant was depriv'd for not reading the Articles in the Church of Elme .

Whereby any Interest the Defendant had to Wringlington , was wholly avoided , as the Case is .

Yet if the Church of Wringlington had been under value , and the Patron had not presented to it his Clerk before Higden's Deprivation of the Church of Elme , he might not have still continued Parson of Wringlington , as if never Admitted , Instituted , or Inducted to the Rectory of Elme .

But if he had not subscribed the Articles before the Ordinary , upon his Admission and Institution to the Rectory of Elme , he had never been Incumbent of Elme , and consequently never accepted a second Benefice to disable him of holding the first .

And so it is resolv'd in the last Case of the Lord Dyer , 23 of the Queen , where a man having a Living with Cure under value , accepted another under value also , having no Qualification or Dispensation , and was Admitted , Instituted , and Inducted into the Second , but never subscribed the Articles before the Ordinary , as the Statute of 13. requires . Vpon question , whether the first Living , vacavit per mortem , of him , or not ? the Court resolv'd , That the first Living became vacant by his death , and not by accepting the second , because he was never Incumbent of the second , for not subscribing the Articles before the Ordinary , whereby his Admission , Institution , and Induction into the second Living became void , as if they had never been .

This Case was urg'd at the Barr for the Defendant , as if his not reading the Articles within two months after his Induction into Elme , had still ( as in the Lord Dyers Case ) left him Incumbent of the first Living .

But that was mistaken ; for not subscribing the Articles , made that he never was Incumbent of the second Living , and consequently then there was no cause to lose the first .

But the Defendant having subscribed the Articles upon his Admission and Institution , was perfect Incumbent , pro tempore , of the second Living , and thereby lost the first , and afterwards lost the second , for not reading the Articles within two months after his Induction , so as he was compleat Incumbent by Admission , Institution , and Induction of the second Living , full two months before he lost it .

It was upon this Clause of the Statute smartly urg'd by my Brother Baldwyn , That if the Statute makes the Defendants Admission , Institution , and Induction to the second Living , void , as if they had never been ; For what reason doth he not still retain his first ? The Answer is as before .

1. That his not retaining the first , is no effect nor consequent of his losing the second .

But the first was lost because he accepted a second , and the right Patron thereupon presented to the first ; so as he lost the first , whilst he was , and for being , lawful Incumbent of the second : And therefore could be no effect nor consequent at all proceeding from his loss of the second , by not reading the Articles after , more than if he had lost the second by Deprivation for Heresie , or other cause .

2. The Clause of 13. is not , That all Admissions , Institutions , and Inductions to Benefices , where any person is depriv'd by virtue of that Act , shall be void as if they never were ; for so should the Clause have been to warrant the Objection made at the Barr.

But the Clause is , That all Admissions , Institutions , and Inductions made contrary to any provision of the Act , shall be void , as if they never were .

But Higden's Admission , Institution , and Induction to the Church of Elme , was not contrary to any provision of the Act , but every way legal ; but had he not subscribed the Articles before the Ordinary , then his Admission , Institution , and Induction had been contrary to the provision of the Act , and so void , as if they never were .

The Chief Justice delivered the Opinion of the Court , and Judgment was given for the Plaintiff .

Bushell's Case .

THE King 's Writ of Habeas Corpus , Dat. 9 die Novembris , 22 Car. 2. issued out of this Court , directed to the then Sheriffs of London , to have the Body of Edward Bushell , by them detained in Prison , together with the day and cause of his Caption and Detention , on Friday then next following , before this Court , to do and receive as the Court should consider ; as also to have then the said Writ in Court .

Of which Writ , Patient Ward and Dannet Foorth , then Sheriffs of London , made the Retorn following , annex'd to the said Writ .

That at the Kings Court of a Session of Oyer and Terminer , held for the City of London , at Justice Hall in the Old Baily , London , in the Parish of St. Sepulchres in Farringdon Ward without London , on Wednesday 31 die August . 22 Car. 2. before Sir Samuel Sterling then Mayor of London , and divers other his Majesties Justices , by virtue of his Majesties Letters Patents , under the Great Seal of England , to them , any four or more of them , directed to enquire , hear , and determine , according to the tenor of the said Letters Patents , the Offences therein specified : And amongst others , the Offences of unlawful Congregating and Assemblies , within the limits appointed by the said Commission within the said City , as well within Liberties as without . Edward Bushel , the Prisoner at the Barr , was committed to the Goal of Newgate , to be there safely kept , under the Custody of John Smith Knight , and James Edwards , then Sheriffs of the said City , by virtue of a certain Order , then , and there made by the said Court of Sessions , as followeth :

Ordinatum est per Curiam hic quod Finis 40 Marcarum separatim ponatur super Edwardum Bushell , and other Eleven persons particularly named , and upon every of them , being the Twelve Jurors , then , and there sworn , and charg'd to try several Issues , then , and there joyn'd between our Lord the King , and William Penn and William Meade , for certain Trespasses , Contempts , unlawful Assemblies and Tumults , made and perpetrated by the said Penn and Mead , together with divers other unknown persons , to the number of Three hundred , unlawfully and tumultuously assembled in Grace-Church-street in London , to the disturbance of the Peace , whereof the said Penn and Mead were then Indicted before the said Justices . Upon which Indictment , the said Penn and Mead pleaded they were Not guilty . For that they , the said Jurors , then , and there , the said William Penn and William Mead , of the said Trespasses , Contempts , unlawful Assemblies and Tumults , Contra legem hujus Regni Angliae , & contra plenam & manifestam evidentiam , & contra directionem Curiae in materia legis , hic , de & super praemissis eisdem Juratoribus versus praefatos Will . Penn & Will . Mead , in Curia hic aperte datam , & declaratam de praemissis , iis impositis in Indictamento praedicto acquietaverunt , in contemptum Domini Regis nunc , legumque suarum , & ad magnum impedimentum & obstructionem Justitiae , necnon ad malum exemplum omnium aliorum Juratorum in consimili casu delinquentium . Ac super inde modo ulterius ordinatum est per Curiam hic quod praefatus Ed. Bushell , capiatur & committatur Gaolae dicti Domini Regis de Newgate , ibidem remansurus quousque solvat dicto Domino Regi 40 Marcas pro fine suo praedicto , vel deliberatus fuerit , per debitum legis Cursum . Ac eodem Edwardo Bushell ad tunc , & ibidem capto & commisso existente ad dictam Gaolam de Newgate , sub custodia praefat. Johannis Smith & Jacobi Edwards adtunc Vic. Civitatis Lond. praedict. & in eorum Custodia in Gaola praedict. existente & remanente virtute ordinis praedict. iidem Johannes Smith & Jacobus Edwards , postea in eorum exitu ab officio Vic. Civitatis Lond. praedict. scilicet 28 die Septembris , Anno 22. supra dicto eundem Edwardum Bushell in dicta Gaola dicti Domini Regis adtunc existentem , deliberaverunt nobis praefatis nunc Vicecomitibus Civitatis praedict. in eadem Gaola , salvo custodiendum secundum Tenorem , & effectum ordinis praedictae . Et quia praedictus Edwardus , nondum solvit dicto Domino Regi praedictum finem 40 Marcarum , nos iidem nunc Vicecomites Corpus ejusdem Edwardi in Gaola praedicta , hucusque detinuimus , & haec est causa captionis & detentionis praefati Edwardi , cujus quidem Corpus coram praefatis Justitiariis paratum habemus .

The Writ of Habeas Corpus is now the most usual Remedy by which a man is restored again to his Liberty , if he have been against Law deprived of it .

Therefore the Writ commands the Day , and the cause of the Caption and Detaining of the Prisoner to be certified upon the Retorn , which if not done , the Court cannot possibly judge whether the cause of the Commitment and Detainer be according to Law , or against it .

Therefore the cause of the Imprisonment ought , by the Retorn , to appear as specifically and certainly to the Iudges of the Retorn , as it did appear to the Court or Person authorized to commit ; else the Retorn is insufficient , and the consequence must be ,

That either the Prisoner , because the cause retorn'd of his Imprisonment is too general , must be discharg'd ; when as if the cause had been more particularly retorn'd , he ought to have been remanded ; or else he must be remanded , when if the cause had been particularly retorn'd , he ought to have been discharg'd : Both which are Inconveniences not agreeing with the dignity of the Law . ( There is a specious Exception to this Rule , but doth not materially vary it , as shall appear . )

In the present Case it is retorn'd , That the Prisoner , being a Jury-man , among others charg'd at the Sessions Court of the Old Baily , to try the Issue between the King , and Penn , and Mead , upon an Indictment , for assembling unlawfully and tumultuously , did contra plenam & manifestam evidentiam , openly given in Court , acquit the Prisoners indicted , in contempt of the King , &c.

The Court hath no knowledge by this retorn , whether the Evidence given were full and manifest , or doubtful , lame , and dark , or indeed Evidence at all material to the Issue , because it is not retorn'd what Evidence in particular , and as it was deliver'd , was given . For it is not possible to judge of that rightly , which is not expos'd to a mans Iudgment . But here the Evidence given to the Iury is not exposed at all to this Court , but the Iudgment of the Court of Sessions upon that Evidence is only expos'd to us ; who tell us it was full and manifest . But our Iudgment ought to be grounded upon our own inferences and understandings , and not upon theirs .

It was said by a Learned Judge , If the Jury might be fined for finding against manifest Evidence , the retorn was good , though it did not express what the Evidence particularly was , whereby the Court might Judge of it , because retorning all the Evidence would be too long . A strange Reason : For if the Law allow me remedy for wrong Imprisonment , and that must be by judging whether the cause of it were good , or not , to say the cause is too long to be made known , is to say the Law gives a remedy which it will not let me have , or I must be wrongfully imprison'd still , because it is too long to know that I ought to be freed ? What is necessary to an end , the Law allows is never too long . Non sunt longa quibus nihil est quod demere possis , is as true as any Axiom in Euclid . Besides , one manifest Evidence retorn'd had suffic'd , without retorning all the Evidence . But the other Judges were not of his mind .

If the retorn had been , That the Jurors were committed by an Order of the Court of Sessions , because they did , minus juste , acquit the persons indicted .

Or because they did , contra legem , acquit the persons indicted .

Or because they did , contra Sacramentum suum , acquit them .

The Iudges cannot upon the present more judge of the legal cause of their commitment , than they could if any of these causes , as general as they are , had been retorn'd for the cause of their commitment . And the same Argument may be exactly made to justifie any of these retorns , had they been made as to justifie the present retorn , they being equally as legal , equally as certain , and equally as far from possessing the Court with the truth of the cause : and in what condition should all men be for the just Liberty of their persons , if such causes should be admitted sufficient causes to remand persons to prison .

To those Objections made by the Prisoners Council against the Retorn , as too general .

1. It hath been said , That Institutum est quod non inquiratur de discretione Judicis .

2. That the Court of Sessions in London , is not to be look'd on as an inferiour Court , having all the Judges Commissioners . that the Court having heard the Evidence , it must be credited , that the Evidence given to the Iury of the Fact was clear , and not to be doubted .

As for any such Institution pretended , I know no such , nor believe any such , as it was applyed to the present cause ; but taking it in another , and in the true sense , I admit it for truth : that is , when the King hath constituted any man a Iudge under him , his ability , parts , fitness for his place , are not to be reflected on , censured , defamed , or vilified by any other person , being allowed and stampt with the Kings Approbation , to whom only it belongs to judge of the fitness of his Ministers .

And such scandalous Assertions or Inquiries upon the Judges of both Benches , is forbidden by the Statute of Scandalum Magnatum , 2 R. 2. c. 5. Nor must we , upon supposition only , 2 R. 2. c. 5. either admit Judges deficient in their Office , for so they should never do any thing right ; nor on the other side , must we admit them unerring in their places , for so they should never do any thing wrong .

And in that sense the saying concerns not the present Case .

But if any man thinks that a person concern'd in Interest , by the Iudgment , Action , or Authority exercis'd upon his person or fortunes by a Judge , must submit in all , or any of these , to the implyed discretion and unerringness of his Judge , without seeking such redress as the Law allows him , it is a perswasion against common Reason , the received Law , and usage both of this Kingdome , and almost all others .

If a Court , Inferiour or Superiour , hath given a false or erroneous Iudgment , is any thing more frequent than to reverse such Iudgments by Writs of False Judgment , of Error , or Appeals , according to the course of the Kingdome .

If they have given corrupt and dishonest Iudgments , they have in all Ages been complained of to the King in the Starr-Chamber , or to the Parliament .

Andrew Horne , in his Mirror of Justices , Hornes Mirror , f. 296. mentions many Judges punisht by King Alfred before the Conquest , for corrupt Iudgments , and their particular Names and Offences , which could not be had but from the Records of those times .

Our Stories mention many punisht in the time of Edward the First , our Parliament Rolls of Edward the Third's time , of Richard the Second's Time , for the pernicious Resolutions given at Nottingham Castle , afford Examples of this kind : In latter times , the Parliament Journals of 18 and 21 Jac. the Iudgment of the Ship-mony in the time of Charles the First , question'd , and the particular Judges impeacht . These Instances are obvious , and therefore I but mention them .

In cases of retorns too general upon Writs of Habeas Corpus , of many I could urge , I will instance in two only .

One Astwick brought by Habeas Corpus to the Kings Bench , 9 El. Moore , f. 837. was retorn'd to be committed , per Mandatum Nicholai Bacon Militis , domini Custodis magni Sigilli Angliae virtute cujusdam Contemptus in Curia Cancellar. facti , and was presently bail'd .

13 Jac. Moore f. 839. One Apsley , Prisoner in the Fleet , upon a Habeas Corpus , was retorn'd to be committed , per considerationem Curiae Cancellar. pro contemptu eidem Curiae illato , and upon this retorn set at liberty .

In both these Cases , no inquiry was made , or consideration had , whether the Contempts were to the Law Court , or equitable Court of Chancery , either was alike to the Judges , lest any man should think a difference might arise thence .

The reason of discharging the Prisoners upon those retorns , was the generality of them being for Contempts to the Court , but no particular of the Contempt exprest , whereby the Kings Bench could judge , whether it were a cause for commitment or not .

And was it not as supposeable , and as much to be credited , That the Lord Keeper and Court of Chancery , did well understand what was a Contempt deserving commitment , as it is now to be credited , that the Court of Sessions did understand perfectly what was full and manifest Evidence against the persons indicted at the Sessions , and therefore it needed not to be reveal'd to us upon the retorn ?

Hence it is apparent , That the Commitment and Retorn pursuing it , being in it self too general and uncertain , we ought not implicitly to think the Commitment was re vera , for cause particular and sufficient enough , because it was the Act of the Court of Sessions .

And as to the other part , That the Court of Sessions in London is not to be resembled to other inferiour Courts of Oyer and Terminer , because all the Judges are commission'd here ( which is true ) but few are there , at the same time , and as I have heard , when this Tryal was , none of them were present . However persons of great quality are in the Commissions of Oyer and Terminer , through the Shires of the Kingdom , and always some of the Judges ; nor doth one Commission of Oyer and Terminer differ in its Essence , Nature , and Power from another , if they be general Commissions ; but all differ in the Accidents of the Commissioners , which makes no alteration in their actings in the eye of Law .

Another fault in the retorn is , That the Jurors are not said to have acquitted the persons indicted , against full and manifest Evidence corruptly , and knowing the said Evidence to be full and manifest against the persons indicted , for how manifest soever the Evidence was , if it were not manifest to them , and that they believ'd it such , it was not a finable fault , nor deserving imprisonment , upon which difference the Law of punishing Jurors for false Verdicts principally depends .

A passage in Bracton is remarkable to this purpose concerning Attainting Inquests .

Committit Jurator perjurium propter falsum Sacramentum , Bracton , l. 4. c. 4. f. 288. b. ut si ex certa scientia aliter Juraverit quam res in veritate se habuerit , si autem Sacramentum fatuum fuerit licet falsum , tamen non committit perjurium licet re vera res aliter se habeat quam juraverat , & quia jurat secundum conscientiam eo quod non vadit contra mentem . Sunt quidam qui verum dicunt . mentiendo , sed se pejerant — quia contra mentem vadunt .

The same words ▪ and upon the same occasion , Fleta , l. 5. c. 22 f. 336. n. 9. are in effect in Fleta . Committit enim Jurator perjurium quandoque propter falsum Sacramentum , ut si ex certa scientia aliter juraverit quam res in veritate se habuerit secus enim propter factum quamvis falsum ; and lest any should think that these passages are to be understood only of Jury-mens perjuries in foro conscientiae , it is clearly otherwise by both those Books , which shew how , by the discreet Examination of the Judge , the Error of the Jury not wilfull , may be prevented and corrected , and their Verdict rectified .

And in another place of Bracton , in the same Chapter : Judex enim sive Justiciarius ad quem pertinet examinatio , si minus diligenter examinaverit , occasionem prebet perjurii Juratoribus . And after ,

Et si examinati cum justo deducantur errore dictum suum emendaverint , hoc b●ne facere possunt , ante judicium & impune , Bract. l. 4. f. 289. a. sed post judicium non sine poenâ .

After these Authorities ,

I would know whether any thing be more common , than for two men Students , Barristers , or Iudges , to deduce contrary and opposite Conclusions out of the same Case in Law ? And is there any difference that two men should inferr distinct conclusions from the same Testimony ? Is any thing more known than that the same Author , and place in that Author , is forcibly urg'd to maintain contrary conclusions , and the decision hard , which is in the right ? Is any thing more frequent in the controversies of Religion , than to press the same Text for opposite Tenents ? How then comes it to pass that two persons may not apprehend with reason and honesty , what a witness , or many , say , to prove in the understanding of one plainly one thing , but in the apprehension of the other , clearly the contrary thing ? Must therefore one of these merit Fine and Imprisonment , because he doth that which he cannot otherwise do , preserving his Oath and Integrity ? And this often is the Case of the Judge and Jury .

Of this mind were Ten Judges of Eleven , the Chief Baron Turnor gave no Opinion , because not at the Arguments . I conclude therefore , That this Retorn , charging the Prisoners to have acquitted Penn and Mead , against full and manifest Evidence first and next , without saying that they did know and believe that Evidence to be full and manifest against the indicted persons , is no cause of Fine or Imprisonment .

And by the way I must here note , That the Verdict of a Jury , and Evidence of a Witness are very different things , in the truth and falshood of them : A Witness swears but to what he hath heard or seen , generally or more largely , to what hath fallen under his senses . But a Jury-man swears to what he can inferr and conclude from the Testimony of such Witnesses , by the act and force of his Vnderstanding , to be the Fact inquired after , which differs nothing in the Reason , though much in the punishment , from what a Judge , out of various Cases consider'd by him , inferrs to be the Law in the Question before him . Therefore Bracton ,

Bract. f. 289. a. Et licet narratio facti contraria sit Sacramento , & dicto praecedenti , tamen falsum non faciunt Sacramentum licet faciunt fatuum Judicium , quia loquuntur secundum conscientiam quia falli possunt in Judiciis suis , sicut ipse Justitiarius .

There is one Objection which hath been made by none , as I remember , to justifie this general Retorn , I would give Answer to .

A man committed for Treason or Felony , and bringing a Habeas Corpus , hath retorn'd upon it , That he was committed for High Treason or Felony ; and this is a sufficient Retorn to remand him , though in truth this is a general Retorn : For if the specifical Fact for which the party was committed , were expressed in the Warrant , it might then perhaps appear to be no Treason or Felony , but a Trespass , as in the Case of the Earl of Northumberland , 5 H. 4. question'd for Treason in raising power . The Lords adjudg'd it a Trespass ; for the Powers raised were not against the King , but some Subjects .

Why then by like Reason may not this Retorn be sufficient , though the Fact for which the Prisoners stood committed particularly express'd , might be no cause of Commitment ?

Answ. The Cases are not alike ; for upon a general Commitment for Treason or Felony , the Prisoner ( the cause appearing ) may press for his Tryal , which ought not to be denied or delayed , and upon his Indictment and Tryal , the particular cause of his Imprisonment must appear , which proving no Treason or Felony , the Prisoner shall have the benefit of it . But in this Case , though the Evidence given were no full nor manifest Evidence against the persons indicted , but such as the Jury upon it ought to have acquitted those indicted , the Prisoner shall never have any benefit of it , but must continue in Prison , when remanded , until he hath paid that Fine unjustly impos'd on him , which was the whole end of his Imprisonment .

We come now to the next part of the Retorn , viz. That the Jury acquitted those indicted against the direction of the Court in matter of Law , openly given and declared to them in Court .

1. The words , That the Jury did acquit , against the direction of the Court , in matter of Law , literally taken , and de plano , are insignificant , and not intelligible ; for no Issue can be joyn'd of matter in Law , no Jury can be charg'd with the tryal of matter in Law barely , no Evidence ever was , or can be given to a Jury of what is Law , or not ; nor no such Oath can be given to , or taken by , a Jury , to try matter in Law ; nor no Attaint can lye for such a false Oath .

Therefore we must take off this vail and colour of words , which make a shew of being something , and in truth are nothing .

If the meaning of these words , finding against the direction of the Court in matter of Law , be , That if the Judge having heard the Evidence given in Court ( for he knows no other ) shall tell the Jury , upon this Evidence , the Law is for the Plaintiff , or for the Defendant , and you are under the pain of Fine and Imprisonment to find accordingly , then the Jury ought of duty so to do ; Every man sees that the Jury is but a troublesome delay , great charge , and of no use in determining right and wrong , and therefore the Tryals by them may be better abolish'd than continued ; which were a strange new-found conclusion , after a tryal so celebrated for many hundreds of years .

For if the Judge , from the Evidence , shall by his own Iudgment first resolve upon any Tryal what the Fact is , and so knowing the Fact , shall then resolve what the Law is , and order the Jury penally to find accordingly , what either necessary or convenient use can be fancied of Juries , or to continue Tryals by them at all ?

But if the Iury be not oblig'd in all Tryals to follow such Directions , if given , but only in some sort of Tryals ( As for instance , in Tryals for Criminal matters upon Indictments or Appeals ) why then the consequence will be , though not in all , yet in Criminal Tryals , the Iury ( as of no material use ) ought to be either omitted or abolished , which were the greater mischief to the people , than to abolish them in Civil Tryals .

And how the Iury should , in any other manner , according to the course of Tryals us'd , find against the direction of the Court in matter of Law , is really not conceptible .

True it is , if it fall out upon some special Tryal , that the Iury being ready to give their Verdict , and before it is given , the Iudge shall ask , whether they find such a particular thing propounded by him ? or whether they find the matter of Fact to be as such a Witness , or Witnesses have depos'd ? and the Iury answer , they find the matter of Fact to be so ; if then the Iudge shall declare , The matter of Fact being by you so found to be , the Law is for the Plaintiff , and you are to find accordingly for him .

If notwithstanding they find for the Defendant , this may be thought a finding in matter of Law against the direction of the Court ; for in that case the Iury first declare the Fact , as it is found by themselves , to which Fact the Iudge declares how the Law is consequent .

And this is ordinary , when the Iury find unexpectedly for the Plaintiff or Defendant , the Iudge will ask , How do you find such a Fact in particular ? and upon their answer he will say , then it is for the Defendant , though they found for the Plaintiff , or è contrario , and thereupon they rectifie their Verdict .

And in these Cases the Iury , and not the Iudge , resolve and find what the Fact is .

Therefore alwaies in discreet and lawful assistance of the Iury , the Iudge his direction is Hypothetical , and upon supposition , and not positive , and upon coercion . viz. If you find the Fact thus ( leaving it to them what to find ) then you are to find for the Plaintiff ; but if you find the Fact thus , then it is for the Defendant .

But in the Case propounded by me , where it is possible in that special manner , the Iury may find against the Direction of the Court in matter of Law , it will not follow they are therefore finable ; for if an Attaint will lye upon the Verdict so given by them , they ought not to be fined and imprisoned by the Judge for that Verdict ; for all the Iudges have agreed upon a full conference at Serjeants Inn , in this case . And it was formerly so agreed by the then Judges in a Case where Justice Hide had fined a Jury at Oxford , for finding against their Evidence in a Civil Cause . That a Jury is not finable for going against their Evidence , where an Attaint lies ; for if an Attaint be brought upon that Verdict , it may be affirmed and found upon the Attaint a true Verdict , and the same Verdict cannot be a false Verdict , and therefore the Jury fined for it as such by the Judge , and yet no false Verdict , because affirmed upon the Attaint .

Another Reason that the Jury may not be fined in such case , is , because until a Jury have consummated their Verdict , which is not done until they find for the Plaintiff or Defendant , and that also be entred of Record ; they have time still of deliberation , and whatsoever they have answered the Judge upon an interlocutory Question or Discourse , they may lawfully vary from it if they find cause , and are not thereby concluded .

Whence it follows upon this last Reason , That upon Tryals wherein no Attaint lies , as well as upon such where it doth , no case can be invented ; wherein it can be maintained that a Jury can find , in matter of Law , nakedly against the direction of the Judge .

And the Judges were ( as before ) all of Opinion , That the Retorn in this latter part of it , is also insufficient , as in the former , and so wholly insufficient .

But that this Question may not hereafter revive if possible , It is evident by several Resolutions of all the Judges , That where an Attaint lies , the Judge cannot fine the Jury for going against their Evidence or Direction of the Court , without other Misdemeanour .

For in such case , finding against , or following the direction of the Court barely , will not barr an Attaint , but in some case the Judge being demanded by , and declaring to , the Jury , what is the Law , though he declares it erroneously , Ingersalls C. Cr. 35 El. f. 309. n. 18. and they find accordingly , this may excuse the Jury from the Forfeitures ; for though their Verdict be false , yet it is not corrupt , but the Iudgment is to be revers'd however upon the Attaint ; for a man loseth not his right by the Judges mistake in the Law .

Therefore if an Attaint lies for a false Verdict upon Indictment not Capital ( as this is ) either by the Common or Statute Law , by those Resolutions , the Court would not fine the Jury in this case , for going against Evidence , because an Attaint lay .

But admitting an Attaint did not lye ( as I think the Law clear it did not ) for there is no Case in all the Law of such an Attaint , nor Opinion , but that of Thirnings 10 H. 4. Attaint 60. & 64. for which there is no warrant in Law , though there be other specious Authority against it , toucht by none that argued this Case .

The Question then will be , Whether before the several Acts of Parliament , which granted Attaints , and are enumerated in their order in the Register , Reg. f. 122. a. the Judge by the Common Law , in all Cases , might have fined the Jury , finding against their Evidence and direction of the Court , where no Attaint did lye , or could so do , yet if the Statutes which gave the Attaints were repeal'd .

If he could not in Civil Causes before Attaints granted in them , he could not in Criminal Causes , upon Indictment ( wherein I have admitted Attaint lies not ) for the fault in both was the same , viz. finding against Evidence and Direction of the Court , and by the Common Law ; the Reason being the same in both , the Law is the same .

That the Court could not Fine a Jury at the Common Law , where Attaint did not lye ( for where it did , is agreed he could not ) I think to be the clearest position that ever I consider'd , either for Authority or Reason of Law .

After Attaints were granted by Statutes generally ; As by Westminster the First , c. 38. in Pleas Real , and by 34 E. 3. c. 7. in Pleas Personal , and where they did lye at Common Law ( which was only in Writs of Assise ) The Examples are frequent in our Books of punishing Jurors by Attaint .

But no Case can be offer'd , either before Attaints granted in general , or after , That ever a Jury was punish't by Fin● and Imprisonment by the Judge , for not finding according to their Evidence , and his Directtion , until Popham's time , nor is there clear proof that he ever fined them for that Reason , separated from other Misdemeanor . If Juries might be fined in such Case before Attaints granted , why not since ? for no Statute hath taken that power from the Judge . But since Attaints granted , the Judges resolved they cannot Fine where the Attaint lies , therefore they could not Fine before . Sure this latter Age did not first discover that the Verdicts of Juries were many times not according to the Judges opinion and liking .

But the Reasons are , I conceive , most clear , That the Judge could not , nor can Fine and Imprison the Jury in such Cases .

Without a Fact agreed , it is as impossible for a Judge ; or any other , to know the Law relating to that Fact , or direct concerning it , as to know an Accident that hath no Subject .

Hence it follows ; That the Judge can never direct what the Law is in any matter controverted , without first knowing the Fact ; and then it follows , That without his previous knowledge of the Fact , the Jury cannot go against his Direction in Law , for he could not direct .

But the Judge , quà Judge , cannot know the Fact possibly , but from the Evidence which the Jury have , but ( as will appear ) he can never know what Evidence the Jury have , and consequently he cannot know the matter of Fact , nor punish the Jury for going against their Evidence , when he cannot know what their Evidence is .

It is true , if the Jury were to have no other Evidence for the Fact , but what is depos'd in Court , the Judge might know their Evidence , and the Fact from it , equally as they , and so direct what the Law were in the Case , though even then the Judge and Jury might honestly differ in the result from the Evidence , as well as two Judges may , which often happens .

But the Evidence which the Jury have of the Fact is much other than that ; For ,

1. Being return'd of the Vicinage , whence the cause of Action ariseth , the Law supposeth them thence to have sufficient knowledge to try the matter in Issue ( and so they must ) though no Evidence were given on either side in Court , but to this Evidence the Judge is a stranger .

2. They may have Evidence from their own personal knowledge , by which they may be assur'd , and sometimes are , that what is depos'd in Court , is absolutely false ; but to this the Judge is a stranger , and he knows no more of the Fact than he hath learn'd in Court , and perhaps by false Depositions , and consequently knows nothing .

3 The Jury may know the Witnesses to be stigmatiz'd and infamous , which may be unknown to the parties , and consequently to the Court.

4. In many Cases the Jury are to have View necessarily , in many , by consent , for their better information ; to this Evidence likewise the Judge is a stranger .

5. If they do follow his direction , they may be attainted , and the Iudgment revers'd for doing that , which if they had not done , they should have been fined and imprisoned by the Judge , which is unreasonable .

6. If they do not follow his direction , and be therefore fined , yet they may be attainted , and so doubly punisht by distinct Iudicatures for the same offence , which the Common Law admits not .

Chevin and Paramours Case , 3 El. Dyer 201. a. n. 63. A Fine revers'd in Banco Regis for Infancy , per inspectionem & per testimonium del . 4. fide dignorum . After upon Examination of divers Witnesses in Chancery , the suppos'd Infant was prov'd to be of Age , tempore finis levati , which Testimonies were exemplified , and given in Evidence after in Communi Banco , in a Writ of Entry in the quibus there brought . And though it was the Opinion of the Court , That those Testimonies were of no force against the Iudgment in the Kings Bench , The Progress in this Writ of Right till Judgment for Paramour the Defendant , is at large 13 El. Dyer f. 301. n. 40. yet the Jury found , with the Testimony in Chancery , against direction of the Court , upon a point in Law , and their Verdict after affirmed in an Attaint brought , and after a Writ of Right was brought , and battle joyn'd .

7. To what end is the Jury to be retorn'd out of the Vicinage , whence the cause of Action ariseth ? To what end must Hundredors be of the Jury , whom the Law supposeth to have nearer knowledge of the Fact than those of the Vicinage in general ? To what end are they challeng'd so scrupulously to the Array and Pole ? To what end must they have such a certain Free-hold , and be probi & legales homines , and not of affinity with the parties concern'd ? To what end must they have in many Cases the view , for their exacter information chiefly ? To what end must they undergo the heavy punishment of the villanous Iudgment , if after all this they implicitly must give a Verdict by the dictates and authority of another man , under pain of Fines and Imprisonment , when sworn to do it according to the best of their own knowledge :

A man cannot see by anothers Eye , nor hear by anothers Ear , no more can a man conclude or inferr the thing to be resolv'd by anothers Vnderstanding or Reasoning ; and though the Verdict be right the Jury give , yet they being not assur'd it is so from their own Vnderstanding , are forsworn , at least in foro conscientiae .

9. It is absurd a Jury should be fined by the Judge for going against their Evidence , when he who fineth knows not what it is , as where a Jury find without Evidence in Court of either side , so if the Iury find , 14 H. 7. f. 29. per Vavasor in Camer . Scace . without contradiction Hob. f. 227. upon their own knowledge , as the course is if the Defendant plead Solvit ad diem , to a Bond prov'd , and offers no proof . The Jury is directed to find for the Plaintiff , unless they know payment was made of their own knowledge , according to the Plea .

And it is as absurd to fine a Jury for finding against their Evidence , when the Judge knows but part of it ; for the better and greater part of the Evidence may be wholly unknown to him ; and this may happen in most Cases , and often doth , as in Graves and Shorts Case .

Error of a Iudgment in the Common Bench , Graves vers. Short , 40 El. Cro. f. 616. the Error assign'd was , The Issue being , whether a Feoffment were made ? and the Jurors being gone together to conferr of their Verdict , one of them shew'd to the rest an Escrow pro petentibus , not given in Evidence by the parties per quod , they found for the Demandant upon Demurrer adjudg'd no Error ; for it appears not to be given him by any of the parties , or any for them , it must be intended he had it as a piece of Evidence about him before , and shew'd it to inform himself and his Fellows , and as he might declare it as a witness , that he knew it to be true . They resolv'd , If that might have avoided the Verdict , which they agreed it could not , yet it ought to have been done by Examination , and not by Error .

That Decantatum in our Books , Ad quaestionem facti non respondent Judices , ad quaestionem legis non respondent Juratores , literally taken is true : For if it be demanded , What is the Fact ? the Judge cannot answer it : if it be asked , What is the Law in the Case , the Jury cannot answer it .

Therefore the parties agree the Fact by their pleading upon Demurrer , and ask the Iudgment of the Court for the Law .

In Special Verdicts the Jury Inform the naked Fact , and the Court deliver the Law ; and so is it in Demurrers upon Evidence , in Arrest of Judgments upon Challenges , and often upon the Judges Opinion of the Evidence given in Court , the Plaintiff becomes Nonsuit , when if the matter had been left to the Jury , they might well have found for the Plaintiff .

But upon all general Issues ; as upon not Culpable pleaded in Trespass , Nil debet in Debt , Nul tort , Nul disseisin in Assize , Ne disturba pas in Quare Impedit , and the like ; though it be matter of Law whether the Defendant be a Trespassor , a Debtor , Disseisor , or Disturber in the particular Cases in Issue ; yet the Jury find not ( as in a Special Verdict ) the Fact of every Case by it self , leaving the Law to the Court , but find for the Plaintiff or Defendant upon the Issue to be tryed , wherein they resolve both Law and Fact complicately , and not the Fact by it self ; so as though they answer not singly to the Question what is the Law , yet they determine the Law in all matters , where Issue is joyn'd , and tryed in the principal Case , but where the Verdict is Special .

Hob. f. 227. To this purpose the Lord Hobart in Needler's Case against the Bishop of Winchester , is very apposite — Legally it will be very hard to quit a Jury that finds against the Law , either Common Law , or several Statute Law , whereof all men were to take knowledge , and whereupon Verdict is to be given , whether any Evidence be given to them or not . As if a Feoffment or Devise were made to one imperpetuum , and the Jury should find cross , either an Estate for Life , or in Fee-simple against the Law , they should be subject to an Attaint , though no man informed them what the Law was in that Case .

The legal Verdict of the Jury to be recorded , is finding for the Plaintiff or Defendant , what they answer , if asked to questions concerning some particular Fact , is not of their Verdict essentially , nor are they bound to agree in such particulars ; if they all agree to find their Issue for the Plaintiff or Defendant , they may differ in the motives wherefore , as well as Judges , in giving Iudgment for the Plaintiff or Defendant , may differ in the Reasons wherefore they give that Iudgment , which is very ordinary .

I conclude with the Statute of 26 H. 8. c. 4. That if any Jurors in Wales do acquit any Felon , Murderer , or Accessary , or give an untrue Verdict against the King , upon the Tryal of any Traverse , Recognizance , or Forfeiture , contrary to good and pregnant Evidence ministred to them by persons sworn before the Kings Justiciar . That then such Jurors should be bound to appear before the Council of the Marches , there to abide such Fine or Ransome for their Offence , as that Court should think fit .

If Jurors might have been fined before , by the Law , for going against their evidence in matters criminal , there had been no cause for making this Statute against Jurors , for so doing in Wales only .

Objections out of the Ancient and Modern Books .

1. A Juror kept his Fellows a day and night , 8 Ass. pl. 35. without any reason or assenting , and therefore awarded to the Fleet.

This Book rightly understood is Law , That he staid his Fellows a day and a night , without any reason or assenting , may be understood , That he would not in that time intend the Verdict at all , more than if he had been absent from his Fellows , but wilfully not find for either side : In this sense it was a Misdemeanor against his Oath , For his Oath was truly to try the Issue , which he could never do , that resolv'd not to conferr with his Fellows .

And in this sense it is the same with the Case 34 E. 3. where Twelve being sworn , and put together to treat of their Verdict , 34 E. 3. Bra. Title Jurors n. 46. one secretly withdrew himself , and went away , for which he was justly fined and imprison'd ; and it differs not to withdraw from a mans duty , by departing from his Fellows , and to withdraw from it , though he stay in the same Room , and so is that Book to he understood .

But if a man differ in Iudgment from his Fellows for a day and a night , though his dissent may not be as reasonable as the Opinion of the rest that agree , yet if his Iudgment be not satisfied , one disagreeing can be no more criminal than four or five disagreeing with the rest .

2. A Juror would not agree with his Fellows for two dayes , 41 Ass. p. 11. and being demanded by the Judges , If he would agree ; said , He would first die in Prison ; whereupon he was committed , and the Verdict of the Eleven taken ; but upon better advice the Verdict of the Eleven was quasht , and the Juror discharg'd without Fine , and the Justices said , the way was to carry them in Carts , until they agreed , and not by fining them ; and as the Judges err'd in taking the Verdict of Eleven , so they did in imprisoning the Twelfth ; and this Case makes strongly that the Juror was not to be fined , who disagreed in Iudgment only .

Much of the Office of Jurors . in order to their Verdict , is ministerial , as not withdrawing from their Fellows , after they are sworn , not withdrawing after challenge , and being tryed in before they take their Oath , 36 H. 6. f. 27. Br. Jurors . 18. not receiving from either side Evidence after their Oath not given in Court , not eating and drinking before their Verdict , refusing to give a Verdict , and the like ; wherein if they transgress , they are finable ; but the Verdict it self , when given , is not an Act ministerial , but judicial , and according to the best of their judgment , for which they are not finable , nor to be punisht , but by Attaint .

3. The Case of 7 R. 2. Title Coronae Fitz. 108. was cited , where upon acquittal of a Common Thief , the Judge said , The Jury ought to be bound to his good behaviour , during his life : But saith the Book , quere per quel ley , but that was only gratis dictum by the Judge , for no such thing was done , as binding them .

Hob. f. 114. 4. Bradshaw and Salmons Case was urg'd , where a Jury had given excessive Damages upon a Tryal in an Action of Covenant , and the Court of Star-Chamber gave Damages to the Complainant almost as high as the Jury had given upon the Tryal : But the Jury , who gave the Damages , were not question'd : Though , saith the Book , they might have been , because they receiv'd Briefs from the Plaintiff , for whom they gave Damages , which was a Misdemeanor ; but the express Book is , That the Jury could not be punisht by Information for the excessive Damages , but only by Attaint , therefore not for their false Verdict without other Misdemeanor ; which answers some other Cases alledg'd .

Nor can any man shew ( though it was said ) That a Jury was ever punisht upon an Information , either in Law , or in the Star-Chamber , where the charge was only for finding against their Evidence , or giving an untrue Verdict , unless Imbracery , Subordination , or the like , were joyn'd .

5. It was said , A Perjury in facie Curiae , is punishable by the Judge ; and such is it if Jurors go against their Evidence ; perhaps a Witness may be punisht for Perjury in facie Curiae ( which I will not maintain to be Law ) But a Jury can never be so punisht , because the evidence in Court is not binding evidence to a Jury , as hath been shew'd .

6. Some Records were cited , of Fines pro Concelamento ; no doubt it is an Article inquirable in every Oyer and Terminer , and one Jury may find it upon another .

7. Braynes Case was urg'd , 42 El. Cr. 778. but the Jurors were there fined for a manifest Combination to delude the Court , by agreeing upon two Verdicts , and concealing the latter , if the Court would be satisfied with the former .

8. Wharton's Case , reported by two Reporters , Yelverton saith , That the Judges , whereof Popham was one , and a Privy Counsellor , were very angry , and fined the Jury for their Verdict , and finding against direction .

In those Reports that pass under the Name of Noy's , the same Case is reported with this , That the Judges conceiv'd the Jury had been unlawfully dealt with to give that Verdict ; which , if true , the fining was lawful , and the Case therein reported , short by Yelverton .

9. Wagstaff's Case , in the Kings Bench lately , was the same with the present Case ; but by the Record it is reasonable to think the Jurors committed some fault besides going against their Evidence , for they were unequally fined .

But however , All the Judges having , upon this Retorn , resolv'd , That finding against the Evidence in Court , or Direction of the Court barely , is no sufficient Cause to fine ; the Jury answers all these Cases , if not answered before .

10. There remains Southwell's Case , reported by Leonard ; Lannoys C. Moore 730. some Cases out of the Court of Wards in Lannoy's Case , reported by Serjeant Moore , f. 730. where Jurors were sent to the Fleet , or threatned to be sent , for not finding Offices according to direction of the Court.

1. An Inquest of Office is not subject to an Attaint .

2. It neither determines any mans right , nor doth any party put any Tryal upon them .

3. They are only to find naked matter of fact , 3 H. 7. f. 10. b. 2 H. 4. f. 5. a. as the Books are of 3 H. 7. f. 10. b. and 2 H. 4. f. 5. a. but principally an Office for the King is in many Cases , as necessary , as an Entry for a common person , without which he can never come by , or try his right , nor can the King , without an Office , know whether he hath right to a Ward , a Morimain , or the like ; and as it is an injury to hinder a man from his Entry , whereby his right may be tryed , so it is not to find an Office for the King , whereby his right may be tryed , which concludes no man , but enables the King to a Tryal of his right , and in truth is only a finding of matter of fact , and no more .

Therefore perhaps it may be an Offence , as of a Witness refusing his Testimony , not to find an Office for the King , when clear proof is made of the matter of Fact ; but if proof be not made at all , or be altogether doubtful , or that the matter be matter of Law , the Inquest may find an Ignoramus , which a Jury , upon a Tryal , can never do : But of this I shall say no more , it concerning not the Case in question .

Presidents . That the Court of Common Pleas , upon Habeas Corpus , hath discharg'd Persons imprison'd by other Courts , upon the insufficiency of the Retorn only , and not for Priviledge .

5 Jac. Sir Anthony Ropers Case , 12 Rep. Sir William Chanseys C. and Edward Thicknes C. 12 Rep. 8 Jac. Sir Anthony Roper , committed by the High Commission Court , discharg'd absolutely in the Common Pleas , as unlawfully committed and detain'd , without any mention of Priviledge .

George Milton , imprisoned for Contempt , scandalous Words of the Court , and convicted of Drunkenness ; the Causes resolv'd insufficient , and therefore dimittitur à Prisona , and the Goaler discharg'd of him ; but he gave Bayl to attend the pleasure of the Court.

4 Car. 1. Elizabeth Ash committed by the High Commission , pro lenocinio , in like manner discharg'd ; the Cause being insufficient to detain her in Prison , or to hinder her from the priviledge of that Court , but no other mention of Priviledge put in Bayl.

7 Jac. Richard Hayes , for refusing to do Penance , as injoyn'd , committed by the High Commission , the Cause judg'd insufficient to commit , but gave Bayl as before ; he demanded a Habeas Corpus by reason of Priviledge .

But it is to be observ'd , That Priviledge lies only where a man is Officer of the Court , or hath a prior suit in the Common Pleas depending , and is elsewhere arrested to answer , and molested , that he cannot prosecute his Suit , he is then priviledged justly , and without wrong , because his Prosecutor elsewhere might have sued , if he pleas'd , in the Common Pleas.

All Priviledge is either for Officers , Clerks , or Attorneys of the Court , not to be sued elsewhere ; or for persons impleading or impleaded , having priority of Suit in the Common Pleas , arrested or fued in other Iurisdictions ; or for the Menial Servants of such Officers .

These Priviledges are not detrimental to any , because whoever hath occasion to sue an Officer , or any other , having priority of Suit as before , is not restrained to sue them in the Common Pleas , but is restrained from suing elsewhere . And this is the true Priviledge of the Court.

And the way of enjoying this Priviledge , was , by Writs of Priviledge to Supersede the proceeding of other Courts against such , who had the Priviledge of the Common Pleas , as is yet ordinary in the Cases of Attorneys , Officers , and Clerks .

And in such Writs the cause of Priviledge is mentioned , 21 H. 6. f. 20. 22 H. 6. f. 38. 34 H. 6. f. 15. and as to their Menial Servants , if not true , may be Travers'd . As 22 H. 6. 38. Debt was brought against Baron and Feme , and a Supersedeas out of the Chancery , Vide Dyer 12 El. f. 287. pl. 48. Vid. the Supersed . for Clerks of the Court , and for Attorneys anciently , and their great difference . Reg. Jud. f. 84. a. But now Attorneys are inroll'd as well as Officers . was cast for the Baron , as Menial Servant to an Officer of Chancery ; whereupon the Plaintiff said it was contain'd in the Writ that the Husband was Menial Servant to R. J. del Chancery , whereas he was not his Menial Servant , and thereupon Issue was taken . But Quere of the Officers appearing of Record in the Court may be Travers'd .

Hence it follows , Though proceeding in other Courts against a person priviledged in Banco , might be Superseded , yet it was when the matter proceeded upon in such Courts , might as well be prosecuted in the Common Bench ; But if a priviledg'd person , in Banco , were sued in the Ecclesiastical Courts , or before the High Commission , or Constable and Marshal , for things whereof the Common Pleas had no Conuzance , they could not Supersede that proceeding by Priviledge . And this was the ancient reason and course of Priviledge .

1. Another way of Priviledge , by reason of Suit depending in A Superiour Court , is , when a person impleading or impleaded , as in the Common Bench , is after arrested in a Civil Action or Plaint in London , or elsewhere , and by Habeas Corpus is brought to the Common Pleas , and the Arrest and Cause retorn'd ; if it appear to the Court , That the Arrest in London was after the party ought to have had the Priviledge of the Common Pleas ; he shall have his Priviledg allow'd , and be discharg'd of his Arrest , and the party left to prosecute his cause of Action in London , in the Common Pleas , if he will .

2. If the cause of the Imprisonment retorn'd , be a lawful cause , but which cannot be prosecuted in the Common Pleas , as Felony , Treason , or some cause wherein the High Commission , Admiralty , or other Court , had power to imprison lawfully , then the party imprison'd , which did implead , or was impleaded in the Common Bench before such imprisonment , shall not be allow'd Priviledge , but ought to be remanded .

3. The third way is , when a man is brought by Habeas Corpus to the Court , and upon retorn of it , it appears to the Court , That he was against Law imprison'd and detain'd , though there be no cause of Priviledge for him in this Court , he shall never be by the Act of the Court remanded to his unlawful imprisonment , for then the Court should do an act of Injustice in imprisoning him , de novo , against Law , whereas the great Charter is , Quod nullus liber homo imprisonetur nisi per legem terrae ; This is the present case , and this was the case upon all the Presidents produc'd and many more that might be produc'd , where upon Habeas Corpus , many have been discharg'd and bail'd , though there was no cause of Priviledge in the Case .

This appears plainly by many old Books , if the Reason of them be rightly taken , For insufficient causes are as no causes retorn'd ; and to send a man back to Prison for no cause retorn'd , seems unworthy of a Court.

9 H. 6. 54. 58. Br. n. 5. 14 H. 7. f. 6. n. 19. 9 E. 4. 47. n. 24. 12 H. 4. f. 21. n. 11. Br. If a man be impleaded by Writ in the Common Pleas , and is after arrested in London upon a Plaint , there upon a Habeas Corpus he shall have Priviledge in the Common Pleas , if the Writ , upon which he is impleaded , bear date before the Arrest in London , and be retorn'd , although the Plaintiff in the Common Pleas be Nonsuit , essoin'd , or will not appear , and consequently the Case of Priviledge at an end before the Corpus cum causa retorn'd ; but if the first Writ be not retorn'd , there is no Record in Court that there is such a Defendant .

The like where a man brought Debt , in Banco , and after for the same Debt arrested the Defendant in London , and became Nonsuit in Banco ; yet the Defendant , upon a Habeas Corpus , had his Priviledge , because he had cause of Priviledge at the time of the Arrest , 14 H. 7. 6. Br. Priviledge , n. 19.

The like Case 9 E. 4. where a man appear'd in Banco , by a Cepi Corpus , and found Mainprise , and had a day to appear in Court , and before his day was arrested in London , and brought a Corpus cum causa in Banco Regis , at which day the Plaintiff became Nonsuit , yet he was discharg'd from the Serjeant at London , because his Arrest there was after his Arrest in Banco , and consequently unlawful , 9 E. 4. f. 47. Br. Priviledge 24. and a man cannot be imprison'd at the same time lawfully in two Courts . Coke Mag. Chart. f. 53 , & 55.

The Court of Kings Bench cannot pretend to the only discharging of Prisoners upon Habeas Corpus , unless in case of Priviledge , for the Chancery may do it without question .

And the same Book is , That the Common Pleas or Exchequer may do it , if upon Retorn of the Habeas Corpus , it appear the Imprisonment is against Law .

An Habeas Corpus may be had out of the Kings Bench or Chancery , though there be no Priviledge , Mic. C. 2. Coke f. 55. &c. or in the Court of Common Pleas , or Exchequer , for any Officer or priviledg'd Person there ; upon which Writ the Gaoler must Retorn by whom he was committed , and the cause of his Imprisonment ; and if it appeareth that his Imprisonment be just and lawful , he shall be remanded to the former Gaoler ; but if it shall appear to the Court that he was imprisoned against the Law of the Land , they ought , by force of this Statute , to deliver him ; if it be doubtful and under consideration , he may be bayl'd . — The Kings Bench may bayl , if they please , in all cases ; but the Common Bench must remand , if the cause of the Imprisonment retorn'd be just .

The Writ de homine replegiando , is as well retornable in the Common Pleas , as in the Kings Bench.

All Prohibitions for incroaching Iurisdiction Issue as well out of the Common Pleas as Kings Bench.

Quashing the Order of Commitment upon a Certiorari , which the Kings Bench may do , but not the Common Pleas , is not material in this Case .

1. The Prisoner is to be discharg'd or remanded barely upon the Retorn , and nothing else , whether in the Kings Bench , or Common Pleas.

2. Should the Kings Bench have the Order of Commitment certified and quash'd , before the Retorn of the Habeas Corpus , or after , what will it avail the Prisoners ; they cannot plead Nul tiel Record , in the one case or the other .

3. In all the Presidents shew'd in the Common Pleas , or in any that can be shew'd in the King's Bench , upon discharging the Prisoner by Habeas Corpus , nothing can be shew'd of quashing the Orders or Decrees of that Court , that made the wrong Commitment .

Glanvill's C. Moore f. 836. 4. It is manifest , where the Kings Bench hath , upon Habeas Corpus , discharg'd a Prisoner committed by the Chancery , the person hath been again re-committed for the same Cause by the Chancery , and re-deliver'd by the Kings Bench ; but no quashing of the Chancery Order for Commitment ever heard of .

5. In such Cases of re-commitment , the party hath other and proper remedy besides a new Habeas Corpus ; of which I shall not speak now .

6. It is known , That if a man recover in Assise , and after in a Re-disseisin , if the first Iudgment be revers'd in the Assise , the Iudgment in the Re-disseisin is also revers'd . So if a man recover in Waste , and Damages given , for which Debt is brought ( especially if the first Iudgment be revers'd before Execution ) it destroys the Process for the Damages in Debt , though by several Originals . But it may be said , That in a Writ of Error in this kind , the foundation is destroy'd , and no such Record is left .

Drury's Case 8. Rep. But as to that in Drury's Case , 8. Rep. an Outlawry issued , and Process of Capias upon the Outlawry , the Sheriff retorn'd , Non est inventus ; and the same day the party came into Court and demanded Oyer of the Exigent , which was the Warrant of the Outlawry ; and shew'd the Exigent to be altogether uncertain and insufficient , and consequently the Outlawry depending upon it to be null . And the Court gave Iudgment accordingly , though the Record of the Outlawry were never revers'd by Error ; which differs not from this Case , where the Order of Commitment is Iudicially declar'd illegal , though not quasht or revers'd by Error , and consequently whatever depends upon it , as the Fine and Commitment doth , and the Outlawry in the former Case was more the Kings Interest , than the Fine in this .

The Chief Justice deliver'd the Opinion of the Court , and accordingly the Prisoners were discharg'd .

Hill. 23 & 24 Car. II. B. C. Rot. 615. Edmund Sheppard Junior , Plaintiff , In Trespass , Suff. ss. against George Gosnold , William Booth , William Haygard , and Henry Heringold , Defendants .

THE Plaintiff declares for the forcible taking and carrying away , at Gyppin in the said County , the Eight and twentieth of January , 22 Car. 2. Five and twenty hundred and Three quarters of a hundred of Wax of the said Edmunds there found , and keeping and detaining the same under Arrest , until the Plaintiff had paid Forty nine shillings to them the said Defendants , for the delivery thereof , to his Damage of 40 l.

The Defendants plead Not Culpable , and put themselves upon the Country , &c. The Jury find a Special Verdict .

1. That before the Caption , Arrest and Detention of the said Goods , and at the time of the same , Edmund Sheppard the younger , was , and is Lord of the Mannor of Bawdsey in the said County , and thereof seis'd in his Demesne , as of Fee , and that he , and all those whose Estate he hath , and had at the time of the Trespass , suppos'd in the said Mannor , with the Appurtenances , time out of mind had , and accustomed to have all Goods and Chattels wreck'd upon the high Sea , cast on shore upon the said Mannor , as appertaining to the said Mannor .

2. They further say , The said Goods were shipped in Forraign parts , as Merchandise , and not intended to be imported into England , but to be carried into other Forraign parts .

3. That the said Goods were wreck'd upon the high Sea , and by the Sea-shoar , as wreck'd Goods cast upon the Shoar of the said Mannor , within the same Mannor , and thereby the said Edmund seis'd as wreck , belonging to him as Lord of the said Mannor .

They further find , That at the Parliament begun at Westminster the Five and Twentieth of April , the Twelfth of the King , and continued to the Nine and Twentieth of December following , there was granted to the King a Subsidy , call'd Poundage .

Of all Goods and Merchandises of every Merchant , natural born Subject , Denizen , and Alien , to be exported out of the Kingdom of England , or any the Dominions thereto belonging , or imported into the same by way of Merchandise , of the value of Twenty shillings , according to the particular Rates and Values of such Goods and Merchandises , as they are respectively rated and valued in the Book of Rates , intitled , The Rates of Merchandise , after in the said Act mentioned and referr'd to , to One shilling , &c.

Then they say , That by the Book of Rates , Wax inward , or imported , every hundred weight containing One hundred and twelve pounds , is rated to Forty shillings , and hard Wax the pound Three shillings four pence .

They find , at the time of the Seisure of the Goods , That the Defendants were the King's Officers , duly appointed to collect the Subsidy of Poundage , by the said Act granted ; and that for the Duty of Poundage , not paid at the said time , they seis'd and arrested the said Goods , until the Plaintiff had paid them the said Fine of Forty nine shillings .

But whether the Goods and Chattels aforesaid , so as aforesaid wreck'd , be chargeable with the said duty of Poundage , or not , they know not ?

And if not , They find the Defendants Culpable , and Assess Damages to the Plaintiff to Nine and forty shillings , ultra misas & custagia .

And if the said Goods be chargeable with the said Duty , they find the Defendants not Culpable .

It is clear , Dyer 31 H. 8. 43. b. n. 22. That formerly in the times of Henry the Eighth , Queen Mary , and Queen Elizabeth , it was suppos'd that some Customes were due by the Common Law ( wherein the King had an Inheritance ) for certain Merchandise to be transported out of the Realm ; and that such Customes were not originally due by any Act of Parliament : so is the Book 31 H. 8.

It was the Opinion likewise of all the Justices in the Chequer Chamber , when Edward the Sixth had granted to a Merchant Alien , That he might Transport or Import all sorts of Merchandise , not exceeding in the value of the Customes and Subsidies thereof Fifty pounds , paying only to the King , his Heirs and Successors , pro Custumis , Subsidiis , & oneribus quibuscunque , of such Marchandises , so much , and no more , as any English Merchant was to pay .

That this Patent remained good for the old Customes , Dyer 1 Mar. f. 92. a. n. 17. wherein the King had an Inheritance by his Prerogative , but was void by the Kings death , as to Goods customable for his life only , by the Statute of Tunnage , &c.

So upon a Question rais'd upon occasion of a new Imposition laid by Queen Mary upon Clothes , Dyer 1 Eliz. f. 165. a. b. n. 57 the Judges being consuited about it 1 Eliz. The Book is ,

Nota , That English Merchants do not pay at Common Law any Custome for any Wares or Merchandises whatever , but Three , that is , Woolls , Woolfells , and Leather ; that is to say , pro quolibet sacco lanae continent . 26 pierres , & chescun pierr 14 pound , un demy marke , and for Three hundred Woolfells half a Mark , and for a Last of Leather Thirteen shillings four pence , and that was equal to Strangers and English Merchants .

This was , in those several Reigns , the Opinion of all the Iudges of the times ; whence we may learn how fallible even the Opinion of all the Judges is , when the matter to be sesolved must be clear'd by Searchers not common , and depends not upon Cases vulgarily known by Readers of the Year Books .

For since these Opinions , it is known , those Customes called the Old , or Antiqua Custumae , were granted to King Edward the First , in the Third year of his Reign , by Parliament , as a new thing , and was no Duty belonging to the Crown by the Common Law .

But the Act of Parliament it self , by which this custome was granted , is no where extant now , but undeniable Evidence of it appears .

For King Edward the First , by his Letters Patents , Dated November , the Third of his Reign , reciteth , Cum Praelati , Magnates , & tota communitas quandam novam consuetudinem nobis , & haeredibus nostris de Lanis , Pellibus & Coriis , viz. de sacco Lanae dimidium Marcae de 300 pellibus dimidium Marcae , & de lasto Corii 13 s. 4 d. concesserint , &c. whence Sir Edward Coke rightly observes , the Grant was to Edward the First himself , and his Heirs , from the words , Nobis & haeredibus nostris , in the Patent .

Coke Mag. Chart. c. 30. f. 58 , 59. 2. That no such Custome was before , from the words , quandam novam custumam , and some other pertinent Observations he makes .

And he cites the year of the Letters Patents truly , to be the Third year of Edward the First , which was the year of the Statute of Westminster the First ; but he makes the Date of the Letters Patents to be November the Tenth of that year , which in truth was November the Fifteenth : He cites likewise the Patent Rolls of Edward the First , for it M. 1. but omits the n , which is n. 1. also : He also cites the Fine Roll of 3 E. 1. to the same purpose , M. 26.

Rot. Pat. 3 E. 1. M 1. n. Rot. finium 3 E. 1. M. 24. But his citation differs in remarkable things from the Patent Roll , 3 E. 1. which runs , Cum Praelati & Magnates , & tota Communitas Mercatorum Regni nostri , and not tota Communitas , nobis concesserint quandam novam consuetudinem de lanis , pellibus , & Coriis , tam in Anglia , quam in Hibernia , & Wallia , Regnum nostrum exeuntibus ( which are omitted also in Sir Edward Coke ) in perpetuum nobis , & haeredibus nostris capiendam sicut in forma inde provisa , & communiter concessa plenius continetur ; and the particulars are mentioned of the Grant .

It appears by the Preface of it , the Statute of Westminster the First was made 3 E. 1. A son primer Parliament general apres son coronment , lendemaine de la clause de Paschae , that is on the Munday of Easter utas , in the Third year of his Reign ; so as there was no Parliament of Edward the First before this his Third year . The antiquae custumae upon Wools , Woolfells , and Leather , were granted to Edward the First , by Parliament , as appears both by the Patent , and Fine Rolls of 3 E. 1. Dated November the Fifteenth , which must be by a Parliament before the Date of the Letters Patents ; whence it follows they were granted by the Statute of Westminster the First , or by the same Parliament , and probably therefore it was by a Rider ( as Proviso's now usually are ) annex'd , by tacking to the Bill or Law of Westminster the First , and from it after casually lost .

So as it is now clear , That Antiqua Custuma , upon Woolls , Pells , and Leather was not by the Common Law , but by Act of Parliament 3 E. 1.

And if any scruple remain'd of a power at Common Law to charge Merchandise in any other manner , the Act of the Twelfth of the King , which grants him Tunnage and Poundage , clears it from question in these words , And because no Rates can be imposed upon Merchandise Imported or Exported by Subjects or Aliens , but by common consent in Parliament , it Enacts that Rates upon Merchandise shall be according to the Book of Rates , establisht by the Act , &c.

Vpon this Supposition , That by the Common Law Merchandise might be charged with Custome , as Woolls , Pells , and Leather were . Queen Mary by her Absolute Prerogative , Dyer 1 Eliz. f. 165. b. laid an Imposition of Fourteen pence upon a Cloath Transported by Natives , and One and twenty pence by Strangers , as appears in Dyer , 1 Eliz.

And upon the same ground King James , about the Twelfth of his Reign , laid an Imposition upon Currans : but these obtain'd not for Law ; and so possibly like Impositions might be laid on Wax , or any other Merchandise , but no such were laid de facto , unless by the Grants of Tunnage and Poundage to the Kings for life by Parliament .

Nor is it a true Inference , That if the Antiquae Custumae were at Common Law ( as every thing in one sense is taken for Common Law , if it be Law , when it appears not to be by Act of Parliament ) therefore it was by Arbitrary Imposition of the King , for it might be by Act of Parliament not extant , as this of 3 E. 1. and in truth , most of the Common Law cannot be conceived to be Law otherwise than by Acts of Parliament , or Power equivalent to them , whereof the Rolls are lost ; for alwaies there was a power and practise of making new Laws .

1. But it is not pretended that any Custome is laid upon Wax in any manner by the Common Law , nor by Statute , but by that of Tunnage and Poundage the Twelfth of this King .

2. This Seisure and Arrest appears by the Special Verdict to be for Poundage , according to the Book of Rates , by the Statute made the Twelfth of the King , cap. 4. which gives Two shillings to the King for every hundred weight of Wax , and therefore not for any other Duty .

3. At the Common Law , wreck'd Goods ( as these are found to be ) could not be chargeable with Custome ( if other Goods were ) for at the Common Law all wreck was wholly the Kings , and he could not have a small Duty of Custome out of that which was all his own : West . 1. c. 4. Vid. Stat. And by Westminster the First , where wreck belongeth to another , than to the King , he shall have it in like manner , that is , as the King hath his .

It remains clear then , That Wax is a Merchandise subject to pay the duty of Poundage by , and according to , the Act of the Twelfth of this King , and not otherwise .

The Question then before us ( being narrow'd ) will be , Whether Wax , or any other Goods subject to the Duty of Tunnage and Poundage by the Act and Book of Rates , the Twelfth of the King , ship'd in Forraign parts , as Merchandise , not intended for England , but for other Forraign parts , proving to be wreck , and cast by the Sea upon a Mannor , to which wreck belongs by Prescription , ought to answer the Duty of Tunnage and Poundage , as if Imported , as Merchandise , in Ships , and not as wreck ; for if any kind of Merchandise wreck'd , be subject to the Duty , all Merchandise mentioned in the Book of Rates is ?

To resolve this Question I shall observe , That all wreck cast on shoar in the Kingdom , must be conceived as Goods Imported ; for though Goods Exported may be wreck'd at Sea equally as Goods to be Imported , yet Goods Exported , if wreck'd , are not cast upon any shoar of the Kingdom as wreck , under the notion of being Exported , but under the notion of being some way Imported .

So as in this Question of wreck , to speak of any Goods or Merchandise , quatenus Exported , will be useless .

And because the Resolution of this Case depends upon the words and intendment of the Act of Twelfth of the King , c. 4. And that if any Merchandise in kind , subject to the Duties by that Act , proving wreck , cast on shoar , may be charg'd with the Duty , every Merchandise within the Act , proving wreck , will be charg'd with it ; and if any wreck'd Goods be free , all wreck'd Goods are free ; for the Act makes no difference in the kinds or species of the Merchandise .

I shall therefore recite some Clauses of the Act. 12 Car. 2. c. 4 The first is , That there is given to the King , of every Tun of Wine of the growth of France , or of any the Dominions of the French King , that shall come into the Port of London , and the Members thereof by way of Merchandise by your natural born Subjects , the Sum of Four pounds and Ten shillings , of currant English mony , and so after that rate . And by Strangers and Aliens , Six pounds of like mony .

And of every Tun of like Wines , which shall be brought into all and every the other Ports and Places of this Kingdom , and the Dominions thereof , by way of Merchandise , by your natural born Subjects , the Sum of Three pounds ; and by Aliens Four pounds and Ten shillings .

From those words I observe , That Wines liable to pay Tunnage by the Act ; must have these properties .

1. They must be Wines which shall come , or be brought into the Ports and Places of the Kingdom .

2. They must come , or be brought into such Ports or Places , as Merchandise , that is for sale , and to that end ; for no other conception can be of Goods brought as Merchandise .

3. They must come and be brought as Merchandise , and for sale , by the Kings natural born Subjects , or by Strangers and Aliens , as distinguisht from the natural Subjects .

4. The Duty payable to the King , is to be measur'd by the quality of him that imports the Commodity ; that is , if the Importer be a natural Subject , he pays less to the King , and if an Alien , more .

5. All those Wines , charg'd with the Duty by the Act , so to come or be brought into the parts or places of the Kingdom , are to be Forraign ; As of the growth of France , the Levant , Spain , Portugal , Rhenish Wines , or of the growth of Germany .

1. Whence it follows , That Wines of Forraign growth , and which by their kind are to pay Duty , if they shall come or be brought into the parts or places of the Kingdom , neither by the Kings natural Subjects , nor by Aliens , they are not chargeable with the Duties of this Act.

2. If they be not brought into the Ports and Places of the Kingdom as Merchandise , viz. for sale , they are not chargeable with the Duty .

But Wines , or other Goods , coming , or brought into the Realm , as wreck , are neither brought into the Kingdom , by any the Kings natural Subjects , nor by any Strangers , but by the Wind and Sea , for such Goods want a Proprietor , until the Law appoints one .

3. Wreck'd Goods are not brought into the Kingdom , being cast on shoar , as Merchandise , viz. for sale , but are as all other the Native Goods of the Kingdom , indifferent in themselves for sale , or other use , at the pleasure of the Proprietor .

4. All Goods Forraign or Domestique , are in their nature capable to be Merchandise , that is , to be sold ; but it follows not thence , That wheresoever they are brought into the Kingdom , they are brought as Merchandise , and to be sold , or should pay Custome , for they are transfer'd from place to place , more for other uses than for sale .

Nor are Goods which are brought to the Markets of the Kingdom to the end to be sold , therefore to pay Custome ; for so all the Goods of the Kingdom would be customable : but they must be Goods brought ab extra , within the intention of the Act , or for Exportation to be carried out of the Kingdom .

5. All Goods charg'd with the Duties of the Act , must be proprieted by a Merchant natural born , or Merchant Alien , and the greater or less Duty is to be paid , as the Proprietor is an Alien or Native Merchant ; for so are the words of the Act in the Clause for Poundage of all manner of Goods and Merchandise of every Merchant natural born Subject , Denizen and Alien , to be brought into the Realm , of the value of every Twenty shillings of the same Goods , according to the Book of Rates .

But wreck'd Goods are not the Goods of any Merchant natural born , Alien or Denizen , whereby the Duty payable should be either demanded , distinguisht , or paid .

Therefore a Duty impossible to be known , can be no Duty ; for civilly what cannot be known to be , is as that which is not .

And it is a poor shift to say , The Lord of the Mannor , who hath the wreck , is Merchant Proprietor ; For if so , I ask , Is he an Alien Merchant Proprietor , or a Native ?

If he be a natural Subject ( as he must be , having his Mannor ) he cannot be an Alien , and consequently the King can have no Alien Duty of wreck'd Goods , but Goods intended by the Act to be charg'd with the Duty , might be indifferently the Goods of Aliens or Natives : But to clear this more , put the Case .

The Act had only charg'd Merchandise imported by Aliens , and not by Natives , with the Duty ;

Then the King could have had no Duty from wreck'd Goods at all , for they could not be the Goods of an Alien Merchant ; Nor is wreck brought into the Mannor by the Lord , more than a Waif or Estray is , which if brought thither by him , is no Waif or Estray .

Besides , it is clear , The Lord of a Mannor is no more a Merchant , Native or Alien , by reason of the property he hath in wreck Goods , than he is a Merchant , Native or Alien , by the property he hath in his Horses or Cows ; for his property in a wreck is not qua Merchant of any kind , but qua Lord of his Mannor ; and every Proprietor of Goods , by what Title soever , is as much Merchant as he .

6. All Goods subject to the Duty of Tunnage and Poundage , may be forfeited by the Disobedience and Mis-behaviour of the Merchant Proprietor , or those trusted by him , by the Act : The words are , If any Merchandise , whereof the Subsidies aforesaid shall be due , shall at any time be brought from the parts beyond the Sea into any Port , Place , or Creek of this Realm , by way of Merchandise , and unshipped to be laid on Land , the Duties due for the same , not paid , nor lawfully tender'd , nor agreed for , according to the true meaning of this Act , then the same Goods , and Merchandises shall be forfeit to your Majesty .

1. But wreck'd Goods cannot be imported into any Creek or Place of the Realm , by way of Merchandise , and unshipped to be laid on Land ; for if so imported and unshipped , to be laid on Land , it is no wreck , and therefore are not Goods forfeitable by the Mis-behaviour of any within the Act , and consequently not Goods intended to be charged with the Duties by the Act.

2. By this Clause the Owner or Proprietor of Goods chargeable with the Kings Duty , is to pay or agree for the Duty with the Customers before the unshipping or landing of the Goods , else they are forfeited .

Et sunt alia quaedam quae in nullius bonis esse dicuntur sicut W●eccum Maris , grossus piscis , &c. Bract. l. 3. de Coron. f. 120. c. 3. n. 4. Constables C. 5. Rep. f. 108. b. But wreck'd Goods are cast on Land , and consequently landed , having no Owner or Proprietor , and therefore the Duty impossible to be paid or agreed for , before their landing , and when so landed , and not before , the Law makes the King , or Lord of the Mannor their Proprietor , but not fully neither , until after a year and a day allowed to the first Owners to claim them , if any such be , by Stat. Westminster the First , c. 4.

Whence it follows , That wrecks should be rather forfeited to the King ( which is not pretended ) as Goods landed ( the Kings Duty not paid or agreed for ) then seised until payment were according to the Act.

3. By this Clause , Imported Goods , intended to be charg'd by the Act , are Goods to be brought from the parts beyond the Seas .

And therefore also wreck'd Goods are not to pay the Duty for the Native Commodities of the Kingdome Shipwrackt in their passage by Sea , for Exportation , may be Imported into the Realm as wreck , yet never brought from the parts beyond the Sea , as the Clause intends Goods charg'd should be .

4. Goods cast into the Sea to unburthen a Ship in a storm , and never intended for Merchandise , are wreck , when cast on shoar without any Shipwrack .

Bract. l. 2. f. 41. b. 5. Goods derelicted , that is , deserted by the Owners , and cast into the Sea , which happens upon various occasions , as coming from infected Towns or Places , and for many other respects , will be wreck if cast on shoar afterwards , though never purpos'd for Merchandise ; Bract. l. 2. f. 41. b. n. 3. Constables C. 5. Rep. Bract. l. 3. de Coron. c. 3. n. 5 f. 120. a. more fully . ( But Goods cast overboard to lighten a Ship , are not by Bracton , nor from him in Sir H. Constables Case , esteemed Goods derelicted ; which is a Question not throughly examined ) Si autem ea mente ut nolit esse Dominus , aliud erit per Bract.

But by all the Clauses of the Act , Goods Imported into the Realm as Merchandise only , are to pay the Kings Subsidy , therefore not wreck Imported , and not as Merchandise .

6. If a Law were made , That Horses and Oxen , brought to Market to be sold , should pay the King a Poundage of their value , and a Horse or Ox coming to Market , happen to stray , and be seis'd in a Mannor that had Strayes , and there us'd according to the Law for Strayes , until a year and a day were past , without claim of the Owner , whereby the property of the Horse or Ox was alter'd , and the Lord of the Mannor had gain'd it ; will any man say Poundage should be paid for this Horse or Ox to the King , for being brought to Market to be sold ? and the Case is the same , or harder , to pay Poundage for wreck .

It remains that some Objections be clear'd .

First , It is said , That by fraud of the Merchant or his Agents , and the Lord of the Mannor , Goods not shipwrackt at all may be cast overboard , so as to be cast on shoar on the Mannor by the Tide , and so the Kings Duty avoided by confederacy .

1. This Supposal is remote , and cannot be of some wrecks possible ; as of wrecks of derelicted Goods , or of Goods cast into the Sea to unburthen a Ship .

2. If the fraud appear , there is no wreck , and the King will be righted . But to charge a legal property which the Lord of the Mannor hath in a wreck with payments , because a fraud may be possible , but appears not , will destroy all property , for what appears not to be , must be taken in Law as if it were not .

The Second Objection is , That the Kings Officers by usage have had in several Kings times , the Duties of Tunnage and Poundage from wrecks .

1. We desired to see ancient Presidents of that usage , but could see but one in the time of King James , and some in the time of the last King , which are so new that they are not considerable .

2. Where the penning of a Statute is dubious , long usage is a just medium to expound it by ; For Jus & Norma loquendi is govern'd by usage . And the meaning of things spoken or written must be , as it hath constantly been receiv'd to be by common Acceptation .

But if usage hath been against the obvious meaning of an Act of Parliament , by the Vulgar and Common Acceptation of the Words , then it is rather an Oppression of those concern'd , than an Exposition of the Act , especially as the usage may be circumstanc'd .

As for instance , The Customers seize a mans Goods , under pretence of a Duty against Law ; and thereby deprive him of the use of his Goods , until he regains them by Law , which must be by engaging in a Suit with the King rather than do so , he is content to pay what is demanded for the King . By this usage all the Goods in the Land may be charg'd with the Duties of Tonnage and Poundage ; for when the Concern is not great , most men ( if put to it ) will rather pay a little wrongfully , than free themselves from it over-chargeably .

And in the present Case , The genuine meaning of the words and purpose of the Act , is not according to the pretended usage , but against it , as hath been shew'd : Therefore usage in this Case weighs not .

The Third Objection is from the words Imported and brought into the Realm , or Dominions thereof , and that wrecks are Goods and Merchandises imported into the Realm , and therefore chargeable with the Duty .

There are no Goods ( as hath been said ) but may in a sense be termed Merchandise , because all Goods may possibly be sold , and when sold , or intended to be , they are Merchandise ; and in that sense wreck'd Goods are Merchandise , and so are all Goods else .

It is also true , That the Goods in question are by the Verdict found to be shipped in Forraign parts , as Merchandise , but not intended to be brought into England , but to be carried to some other Forraign parts ( so are the words ) .

But by the words , or some other Forraign parts , they might be intended to be carried as Merchandise into some Forraign parts , which are of the Kings Dominions , or of the Dominions of the Kingdom of England , for the Act mentions both .

And the Act limits the Duty , not upon Goods in the former sense , but upon Goods brought by way of Merchandise , by Natives or Aliens into any the Kings Dominions , which must be intended his Dominions , as of the Crown of England , for nothing could be enacted here concerning his Dominions , not of the Crown of England .

But the Verdict is uncertain , Whether they were to be carried to Forraign parts of the Dominions of England , or into parts not of the Dominion of England ; nor follows it , because Goods were intended to be sold ( that is , as Merchandise ) in a place where good market was for them , that they were intended to be sold at any other place , where no profit could be made , or not so much , or where such Goods were perhaps prohibited Commodities , therefore the words of the Act , brought as Merchandise , must mean that the Goods are for Merchandise at the place they are brought unto .

And Goods brought or imported any where as Merchandise , or by way of Merchandise , that is , to be sold , must necessarily have an Owner to set and receive the price for which they are sold , unless a man will say , That Goods can sell themselves , and set and receive their own prises .

But wreck Goods imported or brought any where , have no Owner to sell or prize them at the time of their importation , and therefore are not brought by way of , or as Merchandise to England , or any where else .

Secondly , Though in a loose sense , inanimate things are said to bring things ; as , in certain Seasons , Rain to bring Grass ; in other Seasons , some Winds to bring Snow and Frost ; some Storms to bring certain Fowl and Fish upon the Coasts .

Yet when the bringing in or importing , or bringing out and exporting , hath reference to Acts of Deliberation and Purpose , as of Goods for sale , which must be done by a rational Agent , or when the thing brought , requires a rational bringer or importer ; as be it a Message , an Answer , an Accompt , or the like . No man will say , That things to be imported or brought by such deliberative Agents , who must have purpose in what they do , can be intended to be imported or brought by casual and insensible Agents , but by Persons , and Mediums , and Instruments , proper for the actions of reasonable Agents .

Therefore we say not , That Goods drown'd or lost in passing a Ferry , a great River , an arm of the Sea , are exported , though carried to Sea ; but Goods exported are such as are convey'd to Sea in Ships , or other Naval Carriage of mans Artifice ; and by like reason Goods imported , must not be Goods imported by the Wind , Water , or such inanimate means , but in Ships , Vessels , and other Conveyances used by reasonable Agents ; as Merchants , Mariners , Sailors , &c. whence I conclude , That Goods or Merchandise imported within the meaning of the Act , can only be such as are imported with deliberation , and by reasonable Agents , not casually , and without reason ; and therefore wreck'd Goods are no Goods imported within the intention of the Act , and consequently not to answer the Kings Duties ; for Goods , as Goods , cannot offend , forfeit , unlade , pay Duties , or the like , but men whose Goods they are . And wreck'd Goods have not Owners to do these Offices , when the Act requires they should be done ; Therefore the Act intended not to charge the Duty upon such Goods .

Judgment for the Plaintiff . The Chief Justice delivered the Opinion of the Court.

Hill. 23 & 24 Car. II. C. B. Rot. 695. Richard Crowley Plaintiff , In a Replevin , against Thomas Swindles , William Whitehouse , Roger Walton , Defendants .

THE Plaintiff declares , That the Defendants the Thirtieth of December , 22 Car. 2. at Kings Norton , in a place there called Hurley field , took his Beasts , four Cows and four Heifers , and detain'd them , to his damage of Forty pounds .

The Defendants defend the Force ; And as Bailiffs of Mary Ashenhurst , Widow , justifie the Caption ; and that the place contains , and did contain when the Caption is suppos'd , Twenty Acres of Land in Kings Norton aforesaid .

That long before the Caption , one Thomas Greaves Esquire , was seis'd of One hundred Acres of Land , and of One hundred Acres of Pasture in Kings Norton aforesaid , in the said County of Worcester ; whereof the Locus in quo is , and at the time of the Caption , and time out of mind , was parcel in his demesne , as of Fee , containing Twenty Acres .

That he long before the Caption , that is , 18 die Decemb. 16 Car. 1. at Kings Norton aforesaid , by his Indenture in writing under his Seal , which the Defendants produce , dated the said day and year , in consideration of former Service done by Edmond Ashenhurst to him the said Thomas , did grant by his said Writing to the said Edmond , and Mary his Wife , one yearly Rent of Twenty pounds , issuing out of the said Twenty Acres , with the Appurtenances , by the name of all his Lands and Hereditaments , scituate in Kings Norton aforesaid .

Habendum the said Rent to the said Edmond and Mary , and their Assigns , after the decease of one Anne Greaves , and Thomas Greaves , Vncle to the Grantor , or either of them , which first should happen , during the lives of Edmond and Mary , and the longer liver of them , at the Feasts of the Annunciation of the blessed Virgin Mary , and St. Michael the Arch angel , by equal portions : The first payment to begin at such of the said Feasts as should first happen next after the decease of the said Anne Greaves , and Thomas the Vncle , or either of them .

That if the Rent were behind in part or in all , it should be lawful for the Grantees , and the Survivor of them , to enter into all and singular the Lands in King's Norton of the Grantor , and to distrain and detain until payment . By vertue whereof the said Edmond and Mary became seis'd of the said Rent in their Demesne , as of Free hold , during their Lives , as aforesaid .

The Defendants say further in Fact , That after , that is to say , the last day of February , in the Two and twentieth year of the now King , the said Anne Greaves , and Thomas the Vncle , and Edmond the Husband , died at King's Norton .

That for Twenty pounds of the said Rent for one whole year , ending at the Feast of Saint Michael the Arch-Angel , in the Two and twentieth year of the King , unpaid to the said Mary , the Defendants justifie the Caption , as in Lands , subject to the said Mary's Distress , as her Bailiffs ; And averr her to be living at King's Norton aforesaid .

The Plaintiff demands Oyer of the Writing Indented , by which it appears , That the said Annuity was granted to Edmond and Mary , and their Assigns , in manner set forth by the Defendants in their Conuzance .

But with this variance in the Deed ; And if the aforesaid yearly Rents of Ten pounds , and of Twenty pounds , shall be unpaid at any the daies aforesaid , in part or in all , That it shall be lawful for the said Edmond and Mary , at any time during the joynt natural Lives of the said Anne Greaves , and Thomas Greaves the Uncle , if the said Edmond and Mary , or either of them , should so long live , and as often as the said Rents of Twenty pounds , or any parcel should be behind , to enter into all the said Thomas Greaves the Grantors Lands in King's Norton aforesaid , and to Distrain .

Vpon Oyer of which Indenture , the Plaintiff demurrs upon the Conuzance .

Two Exceptions have been taken to this Conuzance made by the Defendants .

The first , for that it is said , The Rent was granted out of the Twenty Acres , being the Locus in quo , by the Name of all the Grantors Lands and Hereditaments in King's Norton , and that a per nomen in that Case is not good .

The Case of Grey and Chapman was urg'd , 43 Eliz. Cro. f. 822. where by Indenture S. one Prudence Cousin let a House , and Twenty Acres of Land , by the Name of all her Tenements in S. But it was not alledg'd in what Vill the Acres were .

The Court was of Opinion in Arrest of Judgment , that the naming of the Vill in the per nomen was not material .

Another Case to the same purpose was urg'd of Gay against Cay , where a Grant in possession was pleaded , 41 Eliz. Cro. f. 662. pl. 10. and not as in Reversion : And upon view of the Record , the Grantor had granted Tenementa praedicta per nomen , of a Mesuage which A. P. held for life , where the per nomen was adjudg'd not to make good the Grant .

The Court is of Opinion , notwithstanding these Cases , That in the present Case the per nomen is well enough , because it is alledg'd the Grantor was seis'd of Two hundred Acres of Land in Kings Norton , whereof the locus in quo being Twenty Acres , is parcel : By reason whereof , the Rent being granted out of every parcel of the Two hundred Acres , it is well enough to say it was granted out of the Twenty Acres per nomen of all his Lands in Kings Norton ; because the Twenty Acres are alledg'd to be parcel of all his Lands there , being Two hundred Acres .

But in Chapman's Case , It is not alledg'd that the Twenty Acres of Land demis'd were parcel of all the Tenements in S. per nomen , of which the Twenty Acres were to pass .

As for the second Case of Gay , it was not possible that Lands granted , as in possession should pass , per nomen , of Land , that was in Reversion .

The second Exception is , Because the Clause of Entry and Distress in the Deed upon Oyer of it , differs from the Clause of Entry and Distress alledg'd in the Conizance . For in the Conizance it is said , It should be lawful to Enter and Distrain if the rent were unpaid and behind after any of the Feasts whereon it was due , that is , at any Feast that should first happen after the death of Anne or Thomas Greaves , for the Rent did not commence before .

But by the Deed , If the Rent were behind at any the Feasts , the Entry and Distress is made to be lawful for it , during the joynt Lives of Anne and Thomas Greaves the Uncle , and during their joynt lives , it could not be behind , for it commenc'd not till one of them were dead .

Scarplus & Handkinson 37 El. Cro. f. 420. words repugnant and sensless to be rejected . So as the sense must run , That if the Rent were behind , it should be lawful to distrain during the joint Lives of Anne and Thomas Greaves , which was before it could be behind ; for it could not be behind till the death of one of them . Therefore those words , during their joynt natural lives , being insensible , ought to be rejected . For words of known signification , but so placed in the Context of a Deed , that they make it repugnant and sensless , are to be rejected equally with words of no known signification .

Judgment pro Defendent . The Chief Justice delivered the Opinion of the Court.

Trin. 16 Car. II. C. B. Rot. 2487. But Adjudg'd Mich. 20 Car. II. Bedell versus Constable .

BY the Act of 12 Car. 2. cap. 24. It is among other things Enacted , That where any person hath , or shall have , any Child or Children under the Age of One and twenty years , and not married at the time of his death , It shall and may be lawful to and for the Father of such Child or Children , whether born at the time of the decease of the Father , or at that time in ventre sa mere ; or whether such Father be within the Age of One and twenty years , or of full Age , by his Deed executed in his life time , or by his last Will and Testament in writing , in the presence of two or more credible Witnesses , to dispose of the custody and tuition of such Child or Children , for , and during such time as he or they shall respectively remain under the Age of One and twenty years , or any lesser time , to any person or persons in possession or remainder , other than Popish Recusants : And such disposition of the Custody of such Child or Children made since the Four and twentieth of February , 1645. or hereafter to be made , shall be good and effectual against all and every person or persons claiming the custody or tuition of such Child or Children as Guardian in Soccage or otherwise : And such person or persons to whom the custody of such Child or Children hath been , or shall be so disposed or devised as aforesaid , shall and may maintain an Action of Ravishment of Ward , or Trespass , against any person or persons which shall wrongfully take away or detain such Child or Children , for the Recovery of such Child or Children , and shall and may recover Damages for the same in the said Action , for the use and benefit of such Child or Children .

And such person or persons to whom the custody of such Child or Children hath been , or shall be , so disposed or devised , shall and may take into his or their custody to the use of such Child or Children , the profits of all Lands , Tenements , and Hereditaments of such Child or Children ; and also the custody , tuition , and management of the Goods , Chattels , and personal Estate of such Child or Children , till their respective Age of One and twenty years , or any lesser time , according to such Disposition aforesaid ; and may bring such Action or Actions in relation thereto , as by Law a Guardian in Common Soccage might do .

By the Will is devised in these words ,

I do bequeath my son Thomas to my Brother Robert Towray of Rickhall , to be his Tutor during his Minority .

Before this Act , Tenant in Soccage of Age might have dispos'd his Land by Deed , or last Will , in trust for his Heir , but not the Custody and Tuition of his Heir ; for the Law gave that to the next of Kinn , to whom the Land could not descend .

But Tenant in Soccage under Age , could not dispose the Custody of his Heir , nor devise or demise his Land in trust for him in any manner . Now by this Statute he may grant the Custody of his Heir , but cannot devise or demise his Land in trust for him for any time directly ; for if he should , the devise or demise were as before the Statute ( as I conceive ) which is most observable in this Case .

I say directly he cannot , but by a mean and obliquely he may ; for nominating who shall have the Custody , and for what time , by a consequent the Land follows , as an incident given by the Law to attend the custody , not as an Interest devis'd or demis'd by the party .

This difference is very material ; for if the Father could devise the Land in trust for him until his Son came to One and twenty , as he can grant the Custody then , as in other Cases of Leases for years , the Land undoubtedly should go to the Executor or Administrator of him whom the Father named , for the tuition , and the trust should follow the Land , as in other Cases , where Lands are convey'd in trust .

But when he cannot , ex directo , devise the Land in trust , then the Land follows the Custody , and not the Custody the Land ; and the Land must go as the Custody can go , and not the Custody as the Land can go .

Coke Litt. f. 49. a. 1 H. 7. 28. 8 H. 7. 4. As where a House or Land belongs to an Office , or a Chamber to a Corody , the Office or Corody being granted by Deed , the House and Land follows as incident , or belonging without Livery , because the Office is the principal , and the Land but pertaining to it .

A second Consideration is , That by this Act no new custody is instituted , but the office of Guardian , as to the duty and power of the place , is left the same , as the Law before had prescrib'd and setled of Guardian in Soccage .

But the modus habendi of that office is alter'd by this Act in two Circumstances . The first ,

1. It may be held for a longer time , viz. to the Age of the Heir of One and twenty , where before it was but to Fourteen .

2. It may be by other persons held , for before it was the next of Kindred , not inheritable , could have it , now who the Father names shall have it .

So it is , as if an Office grantable for life only before , should be made grantable for years by Parliament , or grantable before to any person , should be made grantable but to some kind of persons only .

The Office , as to the Duty of it , and its essence , is the same it was : But the Modus habendi alter'd .

If therefore this new Guardian is the same in Office and Interest with the former Guardian in Soccage , and varies from it only in the Modus habendi , then the Ward hath the same legal Remedy against this Guardian as was against the old . But if this be a new Office of Guardianship , differing in its nature from the other , the Heir hath no remedy against him at all in Law ; For though this new Guardian be enabled to have such Actions as the old might have , yet this Act enables not the Heir to have like Actions , or any other against him , as he might against the Guardian in Soccage .

The Intent of this Statute is to priviledge the Father against common right to appoint the Guardian of his Heir , and the time of his Wardship under One and twenty : But leaves the Heirs of all other Ancestors Wards in Soccage , as before : Therefore I hold ,

1. That such a Special Guardian cannot transferr the Custody of the Ward by Deed or will to any other .

2. That he hath no different Interest from a Guardian in Soccage , but for the time of the Wardship .

1. When an Act of Parliament alte●s the Common Law , the meaning shall not be strained beyond the words , except in Cases of publick Vtility , when the end of the Act appears to be larger than the enacting words . But by the words the Father only can appoint the Guardian , therefore the Guardian so appointed , cannot appoint another Guardian .

2. The Mother hath the same concern for her Heir , as the Father hath ; But she cannot by the Act name a Guardian , therefore much less can the Guardian named by the Father .

3. The Father cannot by the Act give the custody to a Papist , but if it may be transferr'd over by him whom the Father names , or by Act in Law go to his Executor or Administrator , it may come to a Papist , against the meaning of the Act.

4. Offices or Acts of personal Trust cannot be assign'd ; for the Trust is not personal which any man may have .

Dyer 2 & 3 Eliz. f. 189. b. 5. At the Common Law none could have the Custody and Marriage of a mans Son and Heir apparent from the Father , yet the Father could not grant or sell the Custody and Marriage of his Heir apparent , though the marriage was to his own benefit , as was resolved by the greater number of the Iudges in the Lord Bray's Case , who by Indenture had sold for Eight hundred pounds the Custody and Marriage of his Son and Heir apparent , in the time of Henry the Eighth , to the Lord Audley , Chancellor of England . Lord Cromwell , Lord Privy Seal . Sir William Paulett , Treasurer of the Houshold . The Marquis of Winchester , Lord Treasurer .

Dyer supra f. 190. b. pl. 19. The Reason given is , That the Father hath no Interest to be granted or sold to a Stranger in his eldest Son , but it is inseparably annex'd to the person of the Father .

Two Judges differ'd , because an Action of Trespass would lye for taking away a mans Heir apparent , and marrying him , whence they conclude he might be granted as a Chattel .

11 H. 4. f. 23. a. Fitz. N. Br. Tresp . f. 90. b. Lett. G. f. 89. Lett. O. But an Action of Trespass will lye for taking away ones Servant .

For taking away a Monk , where he was cloyster'd in Castigationem .

Pro Uxore abducta cum bonis Viri ; yet none of these are assignable .

West . 1. c. 48. By the Statute of Westminster the First , If the Guardian in Chivalry made a Feoffment of the Wards Lands in his Custody during his Minority , the Heir might forthwith have a Writ of Novel Disseisin against the Guardian and Tenant , and the Land recover'd should be deliver'd to the next of kinn to the Heir , to be kept and accompted for to him at his full Age.

This was neither Guardian in Soccage nor Chivalry , Coke 2. Inst. f. 260. b. By 4 , 5 P.M. c. 8. No woman child under 16. can be taken against his will whom the Father hath made Guardian by Deed or Will , yet this is no Lease of the Custody till 16. nor is it assignable . Ratcliffs C. 3. Rep. Shoplands C. 3 Jac. Cr. f. 99. but a special Guardian appointed by the Statute , and such a Guardian could not assign over , nor should it go to his Executors by the Express Book .

This Case likewise , and common Experience proves , That Guardian in Soccage cannot assign , nor shall the Custody go to his Executors ; though some ancient Books make some doubt therein .

For expresly by the Statute of 52 H. 3. the next of kin is to answer and be accomptable to the Heir in Soccage , as this special Guardian is here by Westminster the First .

These several sorts of Guardians trusted for the Heir , could neither assign their Custody , nor did it go to their Executors , because the Trust was personal , and they had no Interest for themselves .

The Trust is as personal in this new Guardian , nor hath he any Interest in it for himself ; and therefore he shall not assign it .

A Guardian in Soccage cannot transferr his Custody , because it is a personal Trust , but the Trust of this special Guardian is more personal ; therefore that he shall transferr it , concludes strangely .

The Office of a Philizer is an Office of personal Trust to do the business of the Court , and not assignable , 28 H. 8. f. 7. Dyer . no Execution can be upon it .

Sir George Reynels Case , an Office of Trust and Confidence cannot be granted for years , because then it might go to persons ( that is , to Executors or Administrators ) never trusted or confided in .

So is Littleton expresly , That all Offices of Trust , Sect. 379. as Steward , Constable , Bedlary , Bailiffwick , must be personally occupied , unless they be granted to be occupied by a Deputy , and are not assignable .

And a more near or tenderer Trust cannot be , than the Custody and Education of a mans Child and Heir , and preservation of his Estate .

It may be said , That in these Cases the Law doth particularly appoint the Guardians , and therefore no others can be . But in the Case at Barr the Father appoints the person , not the Law .

It is true , there is a difference in the Cases , but not to make the Trust more assignable in the one Case , than the other .

Where the Law appoints who shall be trusted , the Trust cannot be refused , as in the several Guardians before mentioned .

But where the Person names the Trustee , the Trust may be refused ; but once accepted , it cannot be transfer'd to others , more than where the Law names the Trustee .

An Executor hath a private office of Trust ( for we speak not of publique ) and is named by the Testator , not by the Law ; therefore he may refuse , but cannot assign his Executorship .

But it is true , an Executor may make an Executor ( due Circumstances observed ) who shall discharge the first Testators Trust , but the reason is , that after Debts paid , and Legacies , the Surplus of the Goods belongs to the Executor , proprio jure .

An Administrator hath a private Office of Trust , he cannot assign nor leave it to his Executor , he is not named by the Intestate , but by the Law in part for him , but not peremptorily , he may not claim it if he will , because it must pass through the Ordinary .

A mans Bailiff or Receiver are Offices of personal Trust , and not assignable ; so is the Office of every Servant .

An Arbitrator , or one authorized to sell a mans Land , to give Livery , or receive it , cannot assign ; it is a personal Confidence ,

1. A Custody is not in its nature Testamentary , it cannot pay Debts nor Legacies , nor be distributed as Alms.

2. It is not accomptable for to the Ordinary , as Intestates Goods are .

3. The Heir ought to have a Guardian without interruption but an Executor may be long before he proves the Will , and may at length refuse . An Administration , long before it be granted , and after , may be suspended by Appeal ; and in these times the Ward hath no certain Guardian responsal for his Estate or Person .

Shopland's C. 3 Jac. Cr. f. 99. And where it may be said , That these are naked Authorities , and the persons have no Interest , but a Guardian hath Interest , he may lett and sett the Wards Land during minority , Avow in his own name , Grant Copy-hold Estates , and the like .

It is an Interest conjoyned with his trust for the Ward , ( I speak not here of equitable trusts , without which Interest he could not discharge the trust ) but it must be an Interest for himself , which is transferrable , or shall go to his Executor .

All Executors and Administrators have Interest and Property necessary to their Trusts ; for they may sell the Goods or Leases of the Testator or Intestate , without which they could not execute the Trust .

A Monk made an Executor might do the like , who in his own right could have no Interest or Property .

But such Interest proves not that the Executors or Administrators may assign their Trust , Guardian in Soccage may demise his Guardianship and grant over his Estate . N. Br. f. 145. b. Letter H. quod nota . or that it shall go to their Executors ; for it is agreed in that Case of Shopland , That such Interest as a Guardian in Soccage hath , shall not go to his Executor , but is annexed to his Person , and therefore not transferrable .

So as I take the sense of the Act , collected in short , to be ,

Whereas all Tenures are now Soccage , and the next of kinn , to whom the Land cannot descend , is Guardian until the Heirs Age of Fourteen ; yet the Father , if he will , may henceforth nominate the Guardian to his Heir , and for any time , until the Heirs Age of One and twenty , and such Guardian shall have like remedy for the Ward , as the Guardian in Soccage by the Common Law hath .

Another Exposition of this Act hath been offer'd , as if the Father did devise his Land by way of Lease , during the minority of the Heir , to him to whom he gave the Custody in Trust for the Heir , and so the Land was assignable over , and went to the Executors , but follow'd with the Trust .

1. This is a forc'd Exposition to carry the Custody to any Stranger , to the Father , or to the Child , or to any that may inherit the Land contrary to the ancient and excellent policy of the Law .

2. By such an Exposition the Heir should have no Accompt of such a Lessee , as he may against a Guardian , but must sue in equity , for this Statute gives Actions , such as Guardians might have to him , who hath the Custody , but gives none against him .

3. If such Lessee should give the Heirs marriage , Coke Litt. f. 896. the Heir hath no Remedy , but the Guardian in Soccage shall accompt for what the marriage was worth .

Stat. Malbridge c. 17. The Statute only saith , That such person nominated by the Father may take to his Custody the Profits of all Lands , Tenements , and Hereditaments of such Child and Children , and also the Custody , Tuition , and Management of the Goods , Chattels , and personal Estate of such Child or Children ; And may bring such Action in relation thereto , as a Guardian in Soccage might do .

None of which words will charge him with the value of the Marriage , if he had nothing for it .

Na. Br. f. 139. b Lett. H. 4. If the Heir be in custody of such a Lessee , and be Guardian by nearness of kinn to another Infant . The Guardian of the Heir by Law is Guardian to both ; but such a Lessee hath no pretence to be Guardian of the second Infant by any word of the Act ; For he is neither an Hereditament , or Goods , or Chattels of the first Infant .

As to the second part ;

If the Father , being of Age , should devise his Land to J. S. during the Minority of his Son and Heir , in trust for his Heir , and for his Maintenance and Education , until he be of Age.

This is no devising of the Custody within this Statute , for he might have done this before the Statute .

If the Father , under Age , should make such a Devise , it were absolutely void ; for the same syllables shall never give the Custody of the Heir by the Father under Age , which do not give it by the Father which is of Age.

But in both Cases a Devise of the Custody is effectual , and there is no reason that the Custody devis'd shall operate into a Lease , when a Lease devis'd shall not operate into a Custody , which it cannot do .

If a man devise the Custody of his Heir apparent to J. S. and mentions no time , either during his Minority , or for any other time , this is a good devise of the Custody within the Act , if the Heir be under Fourteen at the death of the Father , because by the Devise the Modus habendi Custodiam is chang'd only as to the person , and left the same it was as to the time .

But if above Fourteen at the Fathers death , then the Devise of the Custody is meerly void for the incertainty .

For the Act did not intend every Heir should be in Custody until One and twenty , Non ut tamdiu sed ne diutius , therefore he shall be in this Custody but so long as the Father appoints ; and if he appoint no time , there is no Custody .

If a man have power to make Leases for any term of years , not exceeding One hundred , and he demises Land , but expresseth no time , shall this therefore be a Lease for One hundred years ? There is no Reason it should be a Lease ; for the greatest term he could grant , more than for the least term he could grant , or indeed for any other term under One hundred : Therefore it is void for incertainty ; and the Case is the same for the Custody .

For if the Father might intend as well any time under that , no Reason will enforce that he only intended that .

And to say he intended the Custody for some time , therefore since no other can be , it must be for that , will hold as well in the Lease , and in all other Cases of incertainty . If a man devises Ten pounds to his Servant , but having many , none shall have it for the incertainty .

It may be demanded , If the Father appoint the Custody until the Age of One and twenty , and the Guardian dye , what shall become of this Custody ?

It determines with the death of the Guardian , and is a Condition in Law ; and the same as if a man grant to a man the Stewardship of his Mannor for Ten years , or to be his Bailiff : It is implyed by way of Condition , if he live so long .

A Copyholder in Fee surrenders to the Lord , Dyer 8 Eliz. f. 251. pl. 90. ad intentionem , that the Lord should grant it back to him for term of life , the Remainder to his Wife , till his Son came to One and twenty , Remainder to the Son in tayl , Remainder to the Wife for life . The Husband died : The Lord at his Court granted the Land to the Wife till the Sons full age . The Remainders , ut supra ; The Wife marries and dies Intestate ; The Husband held in the Land ; The Wives Administrator , and to whom the Lord had granted the Land , during the Minority of the Son , enters upon the Husband .

This Entry was adjudg'd unlawful , because it was the Wives term ; but otherwise it had been , if the Wife had been but a Guardian , or next Friend of this Land .

The like Case is in Hobart . Balder and Blackburn f. 285. 17 Jac.

If it be insisted , That this new Guardian hath the Custody , not only of the Lands descended or left by the Father , but of all Lands and Goods any way acquir'd or purchas'd by the Infant , which the Guardian in Soccage had not .

That alters not the Case ; for if he were Guardian in Soccage without that particular power given by the Statute , he is equally Guardian in Soccage with it , and is no more than if the Statute had appointed Guardian in Soccage to have care of all the Estate of the Infant , however he came by it .

Besides that proves directly that this new Guardian doth not derive his interest from the Father , but from the Law ; for the Father could never give him power or interest of or in that which was never his .

The Court was divided , viz. The Chief Justice , and Justice Wylde for the Plaintiff ; Justice Tyrrell and Justice Archer for the Defendant .

Hill. 19 & 20 Car. II. C. B. Rot. 506. Holden versus Smallbrooke .

IN Trover and Conversion , and not Guilty pleaded , Robinson . the Iury gave a Special Verdict to this Effect , That Doctor Mallory Prebendary of the Prebend of Wolvey , founded in the Cathedral of Litchfield , seis'd of the said Prebend and one Messuage , one Barn , and the Glebe appertaining thereto , and of the Tithes of Wolvey in right of his Prebend , 22 April . 13 Car. 2. by Indenture demised to Giles Astly , and his Assigns , the said Prebend , together with all Houses , Barns , Tenements , Glebe Lands and Tithes thereto belonging for three Lives , under the ancient Rent of Five pounds ten shillings , Astly ( being one of the Lives ) died seis'd of the Premisses ; at whose death one Taverner was Tenant for one year ( not ended ) of the Demise of Astly , of the Messuage , Barn , and Glebe Lands , and in possession of them , whereupon the Plaintiff entred into the Messuage and Glebe , and was in the possession of the same and of the Tithes as Occupant . And afterwards Frances Astly , the Relict of the said Giles Astly enters upon the Messuage , and claims the same as Occupant , in haec verba , Frances Astly , Widow of Giles Astly , enters upon the House , and claims the same , with the Glebe and Tithe , as Occupant ; Taverner attorns to Frances Astly , and afterwards grants and assigns all his Estate in the Premisses to the Plaintiff ; afterwards Conquest , the Husband of Frances Astly , took one Sheaf of Corn in the name of all the Tithes , and afterwards demised the Tithes to the Defendant : The Tithes are set forth , and the Defendant took them , whereupon the Plaintiff brought this Action .

Before I deliver my Opinion concerning the particular Questions before open'd , arising upon this Record , I shall say somewhat shortly of Natural Occupancy and Civil Occupancy .

First opening what I mean by those terms , then briefly shewing their difference , as far only as is material to the Questions now before me ,

I call Natural Occupancy the possession either of such natural things as are immoveable , fixt , and permanent ; as Land , a Pool , River , Sea ( for a Sea is capable of Occupancy and Dominion naturally , as well as Land , and hath naturally been in Occupancy , as is demonstrated in Mr. Selden's Mare Clausum at large ; which lye unpossess'd , and in which no other hath prior right .

Or of things natural and moveable , either animate as a Horse , a Cow , a Sheep , and the like , without number , or Inanimate , as Gold , precious Stones , Grain , Hony , Fruit , Flesh , and the like , numberless also , wherein no man , until the possession thereof by Occupancy , had any other right than every man had ( which is as much as to say ) wherein no man had right , for that which is equally every mans right , is no mans right .

Whence it follows ( for I shall not speak of the usage or extent of such a possession by natural Occupancy , it being a subject too large , and not necessary for my present purpose )

1. That there can be no Occupancy natural of any thing wherein another than the Occupant hath right : For by the definition made , natural Occupancy is the first right .

2. A Claim , without actual possession , cannot make a man a natural Occupant : For ,

1. When a Claim is , cannot be possibly known to all concern'd in the Occupancy of a natural thing , and what cannot be known , is ( as to all effect of right ) as if it had not been ; nor is there any Character of a natural Claim , but the possession and use of the thing , but civilly there may , either by word or other sign , agreed on .

2. The end of a natural Right , to any natural thing , is the separate use of the thing to a part of Mankind , which cannot be used by all Mankind ; but if Claim only would give a Right to the things of nature , they might still remain , as much without use after the Claim as before , which agrees not with the end of Nature in giving a Right to natural things .

3. If Claim could give a Natural Right , one might claim all things in the Universe , not already appropriated , and might have done so in the beginning of time , when nothing almost was appropriated .

4. A natural Occupant hath no Estate of Fee , Freehold , or the like , which are Estates formed and raised by municipal Laws , but hath only a bare possession to keep or forsake .

5. That Land possessed by a natural Occupant must be without any sort of Vassallage of Service , Rent , Condition , or other Charge whatsoever , for those servitudes upon the Land cannot be conceiv'd without a former right in him that laid them , but natural Occupancy of things wherein none had any former right , or having any , have deserted it ; for naturally a man can have nothing against his own will .

6. Two or more cannot , at the same time , have severally plenary possession , that is , Occupancy , of the same thing ; therefore none can have right to that by reason of possession , whereof another is already possess'd , for then there would be two plenary Possessors severally of the same thing at the same time , which is impossible .

And although every Nation hath , by Consent and Agreement among the people of it , its proper Laws to guide and determine mens Properties to all things capable of property and ownership , yet the ancientest Nations of the World have no other right against each other to their own Countries and Territories , than this original and natural occupancy , and that Nation that will not admit a right by occupancy to another Nation in the Land so possess'd by it , must at the same time confess they have no right to their own , which they hold but in like manner .

They who would be further satisfied concerning this kind of occupancy , may resort , for exactness above other Books upon this Subject , to Mr. Selden's Mare Clausum , Seldeni Mare Clausum , l. 1. Grotius de Jure Belli . l. 1. c. 3 , 4. lib. 1. and to Hugo Grotius his first Book , de Jure Belli & Pacis , c. 3. de acquisitione originaria rerum ; &c. 4. de derelictione praesumpta , & eam secuta occupatione , &c.

1. By Civil Occupancy I mean such an occupancy , either of things immoveable , as Lands ; or of things moveable , as is according to institution and the law of the place , and particularly according to the Law of England , as to the decision of the Question before us .

2. By the Law of England , there is no occupancy by any person , of any thing which another hath a present right to possess , wherein the Law of the Land agrees with that of natural occupancy .

Occupancy by the Law must be of things which have natural existence , as of Land , or of other natural things , not of things which have their being and creation from Laws and Agreements of men ; for there is no direct and immediate occupancy of a Rent , a Common , an Advowson , a Fair , a Market , a Remainder , a Dignity , and the like .

Cok. Litt. f. 41. b. Cr. 41 El. f. 721. Crauleys C. p. 50. no Occupancy of a Rent . There can be no Occupant of any thing that lieth in grant , and cannot pass without Deed , because every Occupant must claim by a que estate , and averr the life of Cestuy que vie .

And in this the Civil Occupancy with us of Land agrees with Natural Occupancy , which must be of a thing that hath natural existence , and not only legal .

But although the Occupancy be always of a natural thing , yet the Occupant doth thereby by the Law enjoy several things , many times , that have their being by Law only , as an Occupant of Land may thereby enjoy a Common Occupant of a House Estovers , of the demesne Lands of a Mannor , the Services and Advowsons appendant , which are not themselves natural things , but things created by Law , nor are they immediately and by themselves capable of Occupancy , but with reference to , and as adjuncts of the Land ; and herein the civil Occupany differs from the natural .

And the reason is clear , because the occupancy of the Land , which ought not to lye void , doth not sever or separate any thing from the Land which the Law hath joyned with it ; and if it doth not separate from it that which is joyn'd with it by Law , though that be not capable of Occupancy in it self , as an Advowson or Common , it must follow that such things continue joyn'd or belonging to the Land as before , notwithstanding the occupancy of the Land .

Cok. Litt. f. 41. b. In civil occupancy the Land in occupancy is charg'd with all the servitude impos'd by the first Lessor or by the Law . As 1. to the payment of Rent , 2. to be subject to waste , 3. to forfeiture , 4. to other Conditions , wherein it differs from Land whereof a man is a natural occupant .

As to the civil occupancy of moveable things , which are commonly termed personal things or goods , there are few of those in our Law that have not a Proprietor ( and consequently no Occupant can be of them ) those which fall under occupancy of that kind , are for the most part found in things , ferae naturae , whose acquisition is either per piscationem , Bract. l. 2. c. 1. as in Fish , or per aucupium , as in Fowl , or per venationem , by hunting : These do cedere occupanti communi Jure .

1. Hence it follows by way of Inference and Corollary , That there can be no primary and immediate Occupancy of a Tithe , for it is not in its own nature capable of Occupancy more than a Rent or Common is , and is in truth in its nature but a Rent , it cannot pass by it self , but by Deed , and as other things which lye in grant .

A second thing that follows out of the former Premisses , is , That the Freehold , qua Freehold , is not the thing whereof there is an Occupancy ; for the Freehold is not a natural thing , but hath its essence by the positive Municipal Law of the Kingdome , it cannot abstract from the Land in this matter of Occupancy , he either entred into , or possessed . The Freehold is an immediate consequent of the possession ; for when a man hath gotten the possession of Land that was void of a Proprietor , or other thing capable of Occupancy , the Law forthwith doth cast the Freehold upon the Possessor , to make a sufficient Tenant to the Precipe . Therefore

As to the first Question , Whether Holden the Plaintiffs Entry Quest. 1 upon the Lessee Taverner's possession , into the House , Glebe , and Barn the First of March , 1666. and openly saying , I enter and take possession of this House , Glebe , and Barn , and the Ground thereto belonging , and the Tithes of Woolney , in my own Name and Right , as Occupant upon a Lease made to Giles Astly and his Assigns for three Lives , by Dr. Mallory , Prebend of Woolney , did make him Occupant of the House , Land , and Tithe , or either of them , the Lessee Taverner not having made any Claim as Occupant to any of them ?

I hold clearly , this Entry and Claim did not make Holden Occupant of the House , Land , or Tithe , or of any of them .

To every Occupant of Land , or other thing capable of Occupancy , two things are requisite . 1. Possession of the Land which was void and without Owner . 2. The having of the Freehold to avoid an obeyance , which is had as well where the possession is not void , as where it is .

The first , that is the possession , is acquired by the party , and his Act , but the Freehold is acquir'd by the Act of Law , which casts it upon the possession assoon as there is a Possessor , or where it finds a Possessor when the Freehold is in none .

1. This Claim and Entry was in Order to gain the first possession of the Land which was void ; but that was impossible to be had , for the Lessee Taverner had the possession before he held it then ; therefore the Claim was to no end .

2. Secondly , A man cannot be an Occupant but of a void Possession , or of a Possession which himself hath ; but here was no void Possession when Holden enter'd and claimed as Occupant , for the Lessee was in lawful possession of the House and Barn and Land at the time of the entry and claim .

3. Thirdly , If this Entry and Claim should make Holden a legal Occupant , which cannot be without gaining the possession , then there would be two plenary legal possessors of the same thing at the same time , Holden by his Entry and Claim , and Taverner the Lessee by virtue of his lease ; but that is impossible there should be two plenary possessors of the same thing at the same time : Therefore Holden can be no Occupant by such Entry and Claim .

Skelton & Hay , 17 Jac. Cr. 554. b. 4. This very Case in every point hath been resolv'd in the Case of Skelton and Hay , 17 Jac. where upon an Ejectment brought , a Special Verdict found , That the Bishop of Worcester made a lease to Sir William Whorehood of certain land for his own , and the lives of two of his Sons . Sir William did let the land to John Mallett at will , rendring Rent , and dyed ; Mallett continued the possession , not claiming as Occupant ; one of Sir William's Sons entred as Occupant , and made a lease to the Plaintiff in the Action : It was adjudg'd that Mallett the Defendant , being in possession , the Law cast the Freehold upon him without Claim ; and had he disclaim'd to hold as Occupant , Chamberlayn & Ewes C. Rolls 2. part . f. 151. Lett. E. keeping the possession , he must have been the Occupant , for where one entred to the use of another , he that entred was adjudg'd the Occupant .

Which Case proves one may be an Occupant against and besides his own intention , and therefore a Claim to denote his intention .

5. To be an Occupant is not necessary ; and Tenant for years , as well as at will , is Occupant by that Case .

Besides claiming to be Occupant , is to claim to be in possession , or to claim the Freehold , or both ; but the Law binds not a man to claim that which he hath already ; and therefore he that hath possession , and doth occupy the land , is not to claim possession , or to be Occupant of it ; no more is he to claim a Freehold which he already hath , for the Law hath cast it where it finds the possession ; so having both possession and Freehold , the Law binds him not to claim what he hath .

6. Claim is never to make a Right which a man hath not , but to preserve that which he hath from being lost : As Claim to avoid a Descent , whereby a man had lost his right to enter , so a man makes no Claim to be remitted , when by act of law he is in his Remitter .

As to the second Question , Whether Frances Astly , the Relict Quest. 2 of Giles , entring the Five and twentieth of March , 1667. upon the Lessee Taverner's possession , and claiming the House , Glebe and Tithe , as Occupant , and the Lessee Taverner attorning to her , makes her an Occupant of the House , Land , or Tithe ? The Question hath nothing in it differing from the former , but only the Attornment ; and it is clear , the Attornment of Taverner the Lessee doth not disclaim his possession , but affirms it ; for Attornment is the Act of a Tenant , by reason of his being in possession . Besides , admitting the Tenant a perfect Occupant , he might , continuing so , attorn to whom he pleased , as well as Astly might have done in his life time , yet still continue the Estate that was in him .

It follows then that Taverner was the undoubted Occupant , after Astly's death , of the House , Land , and Barn ; but whether he had the Tithe of Woolney by such his Occupancy , whereof Astly died seis'd , is the difficult Question ?

Another Question will arise , when Taverner the Lessee , who had by lease the House , Barn , and Land , and so found , and was Occupant certainly of those , when afterwards Taverner the Lessee , 12 June 1667 concessit & assignavit totum statum suum de & in praemissis to Holden the Plaintiff , and gave him Livery and Seifin thereupon , what shall be understood to pass by the word praemissis ? if only what was leas'd , and his Estate therein as Occupant , and likewise the Tithe , if the Tithe accrued to him by reason of being Occupant of the land ?

For if he were Occupant of the Tithe by Act in Law , by being Occupant of the land , it follows not that if he past all his Estate to Holden in the House and Land , and gave him Livery , that therefore he past his Estate in the Tithe , nor is such passing found to be by Deed.

To clear the way then towards resolving the principal Question .

1. At the time of Giles Astly's death , the Tithes and the House and Lands were sever'd in Interest ; for the Lessee Taverner had a Lease of the House , Glebe , and Barn , and the Tithe continued in Astly .

2. This severance was equally the same , as if the Tithe had been demis'd to Taverner , and the House and Land had remained still in Astly's possession .

3. Though the Freehold of both remained still in Astly at his death , notwithstanding the divided Interest in the Land and Tithe ; yet the Freehold being a thing , quatenus Freehold , not capable in it self of Occupancy , nor no natural , but a legal thing , which the Law casts upon him that is Occupant , that will not concern the Questions , either who was Occupant , or of what he was Occupant ?

Cok. Litt. f. 41. b. 4. I take it for clear , That a naked Tithe , granted by it self pur auter vie , and the Grantee dying without assignment , living Cestuy que vie , is not capable of Occupancy , more than a Rent , a Common in gross , and Advowson in gross , a Fair , or the like are , it being a thing lying in Grant equally as those others do . Coke's Littleton ; There can be no Occupant of any thing which lyeth in Grant , and cannot pass without Deed. I cited the place at full before with other Authorities against Occupancy of a Rent .

5. If a man dye seis'd of Land which he holds pur auter vie , and also dies seis'd of Rent held pur auter vie , or of an Advowson or Common in gross , held by distinct Grants , pur auter vie , and the same Cestuy que vie , or the several Cestuy vies ( for that will not differ the Case ) living : Though the Grantee died seis'd of a Freehold in these several things , I conceive that he which enters into the Land first , after his death , will be Occupant of the Land which was capable of Occupancy ; but neither of the Tithe , Advowson , nor Common , which are not capable of Occupancy , and have no more coherence with , dependence upon , nor relation to , the Land , than if they had been granted pur auter vie , to another , who had happen'd to dye in like manner as the Grantee of the Land did .

And that which hath intricated men in this matter , hath been a Conception taken up , as if the Occupant had for his object in being Occupant , the Freehold which the Tenant died seis'd of , which is a mistake ; for the subject and object of the Occupant are only such things which are capable of Occupancy , not things which are not , and not the Freehold at all , into which he neither doth , nor can enter ; but the Law casts it immediately upon him that hath made himself Occupant of the Land or other real thing whereof he is Occupant , that there may be a Tenant to the Precipe . But , as was well observed by my Brother Wilmott , No Precipe lies for setting out Tithe at Common Law ; and I doubt not , by the Statute of 32 H. 8. c. 7. though Sir Edward Coke in his Litt. f. 159. a. seems to be of opinion , Coke Litt. 159. a. that a man may at his Election have remedy for witholding Tithe , after that Statute , by Action or in the Ecclesiastical Court , by that Statute doubtless he hath for the title of Tithe as for title of Land , or for the taking of them away , but not perhaps for not setting them out .

6. When a Severance therefore is once made of the Land and Tithe , it is as much severance of them , though the Tithe remain in Astly's possession , as if he had leas'd the Land to Taverner , and the Tithe to another , if then Taverner becoming Occupant of the Land , should have had nothing in the Tithe leas'd to another , as the Land was to him , no more shall he have the Tithe remaining in Astly himself at his death .

Still we must remember the ground insisted on , That no Occupancy begins with the Freehold , but begins by possessing the Land , or other real thing , which was void and ownerless , and that by Act of Law the Freehold is cast upon the Possessor , either entring where the possession was void , or being in possession when Tenant pur auter vie died , either as Lessee for years , or at will to Tenant pur auter vie , for the Law equally casts the Freehold upon him , as was resolved in Chamberleyne and Eures Case , reported by Serjeant Rolls and others , Second Part. f. 151. Letter E. and in Castle and Dods Case , 5 Jac. Cr. f. 200.

Therefore after such Severance made by the Tenant pur auter vie , the Land and Tithe are as distinct and sunder'd from each other , as if Tenant pur auter vie had held them by distinct Grants , or leas'd them to distinct persons .

In the next place I shall agree ,

That the Occupant of a House shall have the Estovers , or way pertaining to such House , the Occupant of the Demesne of a Mannor , or of other Land , shall have the Advowson appendant , or Villain regardant to the Mannor or Common belonging to the Land , and the Services of the Mannor not sever'd from the Demesne before the occupancy .

For a Possessor of a House , Land , Demesne of a Mannor , as Occupant , doth not by such his possession sever any thing belonging to the Land , House , or Demesne , more than the Possessor by any other title than occupancy doth ; and if they be not sever'd , it follows they must remain as before to the Possessor of that to which they pertain .

So if a Mannor , being an intire thing , consisting of Demesnes and Services , which are parts constituent of the Mannor ; the possessing and occupancy of the Demesns , which is one part , can make no severance of the Services from the intire , and therefore the Occupant hath all . And these things , though primarily there can be no occupancy of them , being things that lye in Grant , and pass not without Deed ; yet when they are adjuncts , or pertaining to Land , they do pass by Livery only , without Deed.

Coke Litt. f. 121. 8. Sect. 183. Whatsoever passeth by Livery of Seisin , either in Deed or in Law , may pass without Deed , and not only the Rent and Services , parcel of the Mannor , shall , with the Demesns , as the more principal and worthy , pass by Livery without Deed ; but all things regardant , appendant , or appurtenant to the Mannor , as Incidents or Adjuncts to the same , shall , together with the Mannor , pass without Deed , without saying cum pertinentiis . And if they pass by Livery , which must be of the Land , they must likewise pass by any lawful Entry made into the Land , and such the Entry of the Occupant is .

But as by occupancy of the demesn Lands of a Mannor , the Services are not sever'd ; so if they be sever'd at the time when the occupancy happens , that shall never of it self unite them again .

Now in the Case before us , The Tithe is neither appendant or appurtenant , or any sort of Adjunct to the Glebe or House , nor are they to the Tithe , nor will a lease and livery of the Glebe simply , with the appurtenances , pass the Tithe at all , nor a Grant of the Tithe pass the Glebe ; nor are either of them constituent parts of the Prebendary or Rectory , as the Services are of a Mannor ; for a total severance of the Services and Demesne destroy the Mannor , but a severance of the Tithe or Glebe will not destroy the Rectory , more than the severance of a Mannor , parcel of the possessions of a Bishoprick , will destroy the Bishoprick ; for the Glebe and the Tithe are but several possessions belonging to the Rectory .

But it is true , that in the Case before us , and like Cases , a Grant of the Prebendary , or of the Rectory , una cum terra Glebali , & decimis de Woolney , The Tithe , which alone cannot pass without Deed , doth pass by Livery of the Rectory , Browlow , part. 2. f. 201. Rowles and Masons Case . and so pass , that though the Deed mentions the Tithe to be pass'd , yet if Livery be not given , which must be to pass the Land , the Tithe will not pass by the Deed , because the intention of the parties is not to pass them severally , but una cum , and together .

Therefore the Tithe in such Case must pass in time by the Livery , which did not pass without it , though granted by the Deed.

Yet it is a Question , Whether in such Case the Tithe passeth by the Livery or by the Deed ? For though the passing it by Deed is suspended by reason of the intention to pass the Land and Tithe together , and not severally , it follows not , but that the Tithe passeth by the Deed where Livery is given , though not until Livery given .

If a man be seis'd of a Tenement of Land , and likewise of a Tithe , and agrees to sell them both , and without Deed gives Livery in the Tenement to the Bargainee in name of it , and of the Tithe , I conceive the Tithe doth not pass by that Livery .

But a Prebend or Church man cannot now by the Statute of 13 Eliz. cap. 10. make a Lease of the possessions of his Prebendary without Deed. 13 Eliz. c. 10.

A Prebendary or Rectory is in truth neither the Glebe nor Tithe , nor both , for the one or the other may be recover'd , and might at Common Law have been aliened ; the Rectory remaining . But the Rectory is the Church Parochial , whereof the Incumbent taketh the Cure and Seisin by his Induction after his Institution , which is his Charge , and without other Seisin then of the Ring or Key of the Church-door , by Induction into the Rectory the Parson is seis'd of all the possessions belonging to his Rectory , of what kind soever .

But though by the name of the Rectory the possessions belonging to it , of what nature soever , actually vest in the Incumbent upon Induction , and may pass from the Prebendary by Livery of the Prebend or Rectory to his Lessee , according to the parties intention .

Yet it follows not , That therefore an Occupant , who can be Occupant but of some natural and permanent thing as Land is , should , by being Occupant of that whereof occupancy may be , have thereby some other thing heterogene to the nature of Land , and not capable of occupancy , as a Tithe is , being neither appendant or appurtenant , or necessary part of that whereof he is Occupant ; nor will it follow , that because by giving Seisin of the Rectory , the Tithe and Glebe belonging to it will pass , that therefore giving Livery of the Glebe will pass the Tithe . For it is observable , That if a man be Tenant in tayl of a Mannor to which an Advowson is appendant , or of a Tenement to which a Common is belonging , and discontinue the Issue in tayl , shall never have the Advowson or Common , until he hath recontinued the Mannor or Tenement .

But if a man be seis'd in tayl of a Rectory , consisting of Glebe and Tithe , and discontinue it ; after the death of Tenant in tayl , the Heir in tayl shall have the Tithe which lay in grant , but must recover by Formedon the Rectory and Glebe . This was agreed in this Court in a Case between Christopher Baker and Searl in Ejectment , Cr. 37 El. f. 407. p. 19. Baker and Searls Case . upon a Demise by the Earl of Bedford of the Rectory of D. & de decimis inde provenientibus for Lives of three other persons , and that Case seems to admit an occupancy of the Tithe , the Question being concerning the Tithe only .

Quest. 3 The next Question will be , That if Taverner , being Occupant of the House and Land , shall not have the Tithe whereof Astly was in possession at the time of his death , what shall become of this Tithe , during the lives of the Cestuy que vies ? which is the hard question .

And as to this Question ;

If a Rent be granted to A. for the life of B. and A. dies , living B I conceive this Rent to be determined upon the death of A. equally , as if granted to him for his own life . I say determined , because it is not properly extinguish'd , nor is it suspended .

For Extinguishment of a Rent is properly when the Rent is absolutely conveyed to him , who hath the Land out of which the Rent issues ; or the Land is convey'd to him to whom the Rent is granted .

And Suspension of a Rent is when either the Rent or Land are so convey'd , not absolutely and finally , but for a certain time after which the Rent will be again reviv'd .

The Reasons why it is determined are , because a thing so granted , as none can take by the Grant , is a void Grant , that is , as if no such Grant had been . Therefore a Grant to the Bishop of L. and his Successors , when there is no Bishop in being at the time , or to the Dean and Chapter of Pauls , or to the Mayor and Commonalty of such a place , when there is no Dean or Mayor living at the time of the Grant , is a void Grant , that is , as if it had not been , though such a Grant by way of Remainder may be good . By the same Reason it follows , That when any thing is so granted , that upon some contingent hapning , none can take by the Grant , nor possibly have the thing granted , both the Grant , and thing granted , must necessarily determine ; for what difference is there between saying that Rent can no longer be had , when it is determined by his death for whose life it was granted , and saying none can longer have this Rent when it determines by the death of the Grantee pur auter vie ? For there is no Assignee , Occupant , or any other , can possibly have it ; and it is therefore determined .

In an Action of Trover and Conversion brought by Salter against Boteler , Salter versus Boteler . 44 El. Cr. 901. the Defendant justifies for that one Robert Bash was seis'd in Fee of Twenty Acres in Stansted , and granted a Rent-charge to another Robert Bash , his Executors and Assigns , during the life of Frances the Grantees Wife , of Sixteen pounds per Annum . The Grantee dies , and Frances his wife takes Letters of Administration ; and the Defendant , as her Servant , and by her command took a Distress in the said Twenty Acres for Rent arrear , and impounded them ; And Traverseth the Conversion and taking in other manner .

Vpon Demurrer to this Plea , all the Court held the Plea to be bad , and gave Iudgment for the Plaintiff .

1. Because the Rent was determined by the death of the Grantee , because no Occupant could be of it .

2. Because the Feme was no Assignee by her taking of Administration .

3. None can make title to a Rent to have it against the terr Tenant , unless he be party to the Deed , or make sufficient title under it .

Moore 664. p. 907. Salter vers . Boteler . The same Case is in Moore , reported to be so adjudg'd , because the Rent was determined by the death of the Grantee ; and Popham said , That if a Rent be granted pur auter vie , the Remainder over to another , and the Grantee dies , living Cestuy que vie , the Remainder shall commence forthwith , because the Rent for life determined by the death of the Grantee ; which last Case is good Law : For the particular Estate in the Rent must determine when none could have it ; and when the particular Estate was determined the Remainder took place .

And as the Law is of a Rent , so must it be of any thing which lies in Grant , as a several Tithe doth , whereof there can be no Occupant , when it is granted pur auter vie , and the Grantee dies in the life of Cestuy que vie .

20 H. 6. f. 7 , 8. This is further cleared by a Case in 20 H. 6. A man purchas'd of an Abbot certain Land in Fee-farm , rendring to the Abbot and his Successors , Twenty pounds yearly Rent ; If all the Monks dye , this Rent determined , because there is none that can have it : It lies not in Tenure , and therefore cannot Escheat ; and though new Monks may be made , it must be by a new Creation wholly .

In vacancy of a Parson or Vicar , the Ordinary , ex officio , shall cite to pay the Tithes . Fitz. N. Br. Consultation Lett. G. This Case agrees exactly with the Grant of a Rent or other thing which lies in Grant , pur auter vie , the Grantee dying , the Rent determines , though it were a good Grant , and enjoyed at first , yet when after none can have it , it is determined . So was the Rent to the Abbot , and his Successors , a good Rent , and well enjoyed . But when after all the Covent died , so as none could have the Rent , for the Body Politique was destroyed , the Rent determined absolutely .

By this I hold it clear , That if a man demise Land to another , and his Heirs habendum pur auter vie , or grant a Rent to a man and his Heirs , pur auter vie , though the Heir shall have this Land or Rent after the Grantees death , yet he hath it not as a special Occupant ( as the common expression is ) for if so , such Heir were an Occupant , which he is not , for a special Occupant must be an Occupant , but he takes it as Heir , not of a Fee , but of a descendible Freehold ; and not by way of limitation , as a Purchase , to the Heir , but by descent , though some Opinions are that the Heir takes it by special limitation ; as when an Estate for life is made , the Remainder to the right Heirs of J. S. the Heir takes it by special limitation , if there be an Heir when the particular Estate ends . But I see not how , when Land or Rent is granted to a man and his Heirs , pur auter vie , the Heir should take by special limitation after the Grantees death , when the whole Estate was so in the first Grantee , that he might assign it to whom he pleas'd , and so he who was intended to take by special limitation after the Grantees death , should take nothing at all .

But to inherit as Heir a descendible Freehold , when the Father or other Ancestor had not dispos'd it , agrees with the ancient Law , as appears by Bracton , which obiter in Argument is denied in Walsinghams Case .

Si autem fiat donatio sic , Bract. l. 2. de acquirendo rerum dominico , c. 9. Ad vitam donatoris donatorio & haeredibus suis si donatorius praemoriatur haeredes ei succedent , tenendum ad vitam donatoris , & per Assisam mortis Antecessoris recuperabunt qui obiit ut de feodo .

Here it is evident , That Land granted to a man and his Heirs for the life of the Grantor , the Grantee dying in the life of the Grantor , the Heirs of the Grantee were to succeed him , and should recover by a Writ of Mordancester in case of Abatement ( which infallibly proves the Heir takes by descent ) who died seis'd as of a Fee , but not died seis'd in Fee .

1. Hence I conclude , That if a man dye seis'd , pur auter vie , of a Rent , a Tithe , an Advowson in gross , Common in gross , or other thing , whereof there can be no Occupancy , either directly or by consequence , as adjuncts of something else by the death of the Grantee , in all these Cases the Grant is determined , and the Interest stands as before any Grant made .

2. If any man dye seis'd of Land , pur auter vie , as also of many of these things in gross , pur auter vie , by distinct Grant from the Land . The Occupant of the Land shall have none of these things , but they are in the same state , and the Grants determine as if the Grantee had died seis'd of nothing whereof there could be any occupancy .

But I must remember you , that in this last part of my Discourse , where I said , That if a Rent , a Tithe , a Common or Advowson in gross , or the like , lying in Grant , were granted pur auter vie , and the Grantee died , living Cestuy que vie that these Grants were determin'd , my meaning was , and is , where such Rent , Tithe , or other things , are singly granted , and not where they are granted , together with Land , or any other thing out of which Rent may issue , with Reservation of a Rent out of the whole .

For although a Rent cannot issue out of things which lye in Grant , as not distrainable in their nature , yet being granted together with Land , with reservation of a Rent , though the Rent issue properly and only out of the Land , and not out of those things lying in Grant , as appears by Littleton ; yet those are part of the Consideration for payment of the Rent , Cok. Litt. f. 142. a. 144. a. as well as the Land is .

In such case when the Rent remains still payable by the Occupant , it is unreasonable that the Grant should determine as to the Tithe , or as to any other thing lying in Grant , which passed with the Land as part of the Consideration for which the Rent was payable , and remain to the Lessor as before they were granted ; for so the Lessor gives a Consideration for paying a Rent which he enjoys , and hath notwithstanding the Consideration given back again .

And this is the present Case , being stript and singled from such things as intricate it : That Doctor Mallory , Prebend of the Prebendary of Woolney , consisting of Glebe-land , a House , Barns , and Tithe of Woolney , and thereof seis'd in the right of his Prebendary , makes a Lease to Astly of the Prebend . una cum the Glebe , House , Barn , and Tithe for Three Lives , rendring the accustomed and ancient Rent of Five pounds Twelve shillings : Astly demiseth to Taverner the House , Glebe , and Barn for a year , reserving Twenty shillings , and dies , the Cestuy que vies living .

As I concluded before , Taverner is Occupant of the House , Barn , and Glebe-land , and consequently lyable to pay the whole Rent , being Five pounds twelve shillings yearly , though the Land , House , and Barn be found of the yearly value of Twenty shillings only ; but because the Rent cannot issue out of Tithes , or things that lye in Grant , it issues only out of the House , Barn , and Land which may be distrain'd on .

2. If Taverner , being Occupant of the Land , shall not have the Tithes which remain'd in Astly , according to his Lease for three Lives at the time of his death , and whereof by their nature there can be no direct Occupancy . It follows , that the Lease made by Doctor Mallory is determin'd as to the Tithe , for no other can have them ; yet continues in force as to the Land and House , and all the Rent reserv'd , which seems strange , the Land and Tithe being granted by the same Demise for three Lives , which still continue : yet the Lease to be determined as to part .

3. Though the Rent issue not out of the Tithe , yet the Tithe was as well a Consideration for the payment of the Rent , as the Land and Houses were ; and it seems unreasonable that the Lessor , Doctor Mallory , should by act in Law have back the greatest Consideration granted for payment of the Rent , which is the Tithe , and yet have the Rent wholly out of the Land by act in Law too , which cannot yield it .

4. Though Doctor Mallory could not have reserv'd a Rent out of the Tithe only , to bind his Successor upon a Lease for Lives , more than out of a Fair , though it were as the ancient Rent , and had been usually answered for the Fair ; as is resolv'd in Jewel Bishop of Sarum's Case : Jewell's Case 5 Rep. Yet in this Case , where the Tithe , together with Land , out of which Rent could issue was demis'd ; for the accustomed Rent , the Successor could never avoid the Lease , either in the whole , or as to the Tithe only .

13 Eliz. c. 10. This seems clear by the Statute of 13 Eliz. cap. 10. which saith , All Leases made by any Spiritual or Ecclesiastical persons , having any Lands , Tenements , Tithes , or Hereditaments , parcel of the Possessions of any Spiritual Promotion , other than for One and twenty years , or three Lives , whereupon the accustomed yearly Rent , or more , shall be reserv'd , shall be void .

Cokes Litt. f. 142. a. f. 144. a. Whence it is apparent , this Statute intended that Leases in some sense might be made of Tithes for One and twenty years , or Three Lives , and an ancient Rent reserv'd ; but of a bare Tithe only a Rent could not be reserv'd , according to Jewell's Case : for neither Distress nor Assise can be of such Rent , though an Assise may be de Portione Decimarum , as is clear by the Lord Dyer , 7 E. 6. and the difference rightly stated .

Therefore a Lease of Tithe and Land , out of which a Rent may issue , and the accustomed Rent may be reserved , must be good within the intention of the Statute , or Tithe could in no sense be demis'd .

5. Taverner the Lessee being Occupant here by his possession becomes subject to the payment of the Rent , to Waste , to Forfeiture , Conditions , and all things that Astly the Lessee , or his Assignee , if he had made any , had been subject to : Also

Coke's Litt. 41. He must claim by a que Estate from Astly , he must averr the Life of Cestuy que vie , so as he becomes , to all intents , an Assignee in Law of the first Lessee .

6. Without question , the Occupant being chargeable with the Rent , shall by Equity have the Tithe , which was the principal Consideration for payment of the Rent , when no man can have the benefit of the Tithe but the Lessor , Doctor Mallory , who gave it as a Consideration for the Rent , which he must still have . Therefore

I conceive the Reason of Law here ought necessarily to follow the Reason of Equity ; and that the Occupant shall have the Tithe , not as being immediate Occupant of the Tithe whereof no occupancy can be , but when by his possession of the Land he becomes Occupant , and the Law casts the Freehold upon him , he likewise thereby becomes an Assignee in Law of Astly's Lease and Interest , and consequently of the Tithe .

An ancient Rent reserv'd within the Statute of 1. or 13. of the Queen upon a Lease of One and twenty years , or Three Lives , is by express intention of that Statute a Rent for publique use and maintenance of Hospitality by Church-men , as is resolv'd in Elsemere's Case , Elsmers C. 5. Rep. the 5. Rep. and therefore if the Lessee provide not an Assignee to answer the Rent to the Successors of the Lessor for the ends of that Law , the Law will do it for him , and none fitter to be so than the Occupant , in case of a Lease pur auter vie , as this is .

And if the Occupant , being Assignee , hath pass'd all his Estate and Interest to the Plaintiff hath good cause of Action for the Tithe converted by the Defendant .

Pasch. 22 Car. II. Judgment for the Defendant . Three Justices against the Chief Justice .

Trin. 20 Car. II. C. B. Rot. 2043. Harrison versus Doctor Burwell . In a Prohibition , for his Marriage with Jane , the Relict of Bartholomew Abbot , his Great Uncle .

The Questions are ;

Quest. 1 WHether the marriage of Thomas Harrison the Plaintiff , with Jane his now wife , being the Relict of Bartholomew Abbot his great Vncle , that is , his Grand-fathers Brother by the Mothers side , be a lawful marriage within the Act of 32 H. 8. cap. 38 ?

Quest. 2 Admitting it to be a lawful marriage within the meaning of that Act , Whether the Kings Temporal Courts are properly Judges of it , because the unlawfulness , or lawfulness of it , by that Act , doth depend upon its being a marriage within or without the Levitical Degrees ? For if within those Degrees , it is not a lawful marriage by that Act. And the right knowledge of marriages within or without those Degrees , must arise from the right knowledge ot the Scriptures , of the Old Testament , specially the Interpretation of which hath been , and regularly is of Ecclesiastick Conizance , and not of Lay or Temporal Conizance in regard of the Language wherein it was writ , and the receiv'd Interpretations concerning it in all succession of time .

Quest. 3 Admitting the Kings Temporal Courts have by that Act of 32. or any other , special Conizance of the Levitical Degrees , and of marriages within them : And though this be no marriage within the Levitical Degrees ( it being articled in general to be an Incestuous marriage ) Whether the Temporal Courts of the King can take Conizance in general , that it is not an Incestuous marriage , by the Act of 32 H. 8. and consequently prohibit the questioning of it in the Ecclesiastical Courts ? Because the words of that Act are , That no marriage shall be impeached ( Gods Law except ) without the Levitical Degrees , and therefore within the meaning of that Act : Some marriages might be impeach'd according to Gods Law , though such marriage were out of the Levitical Degrees , whereof this may be one .

As to the first Question , The marriage of Harrison and Jane Resp. 1 his wife , is a lawful marriage , by the Act of 32 H. 8. cap. 38.

As to the Second , I hold the Judges of the Temporal Courts Resp. 2 have , by that and other Acts of Parliament , full Conizance of marriages within or without the Levitical Degrees .

As to the Third , I hold that , as the Law stands at this time , Resp. 3 the Kings Temporal Courts at Westminster have full Conizance what marriages are incestuous , or not , according to the Law of the Kingdom , and may prohibit the Ecclesiastick Courts from questioning marriages , as Incestuous , which the said Courts in their Iudgment shall conceive not to be so . Yet I shall agree , the Ecclesiastick Courts may proceed in order to Divorcement and punishment concerning divers marriages , and the Kings Courts at Westminster ought not to prohibit them , though such marriages be wholly without the Levitical Degrees .

I shall begin in some measure , first to clear the Second Question , viz. Whether the Kings Temporal Courts have any Conizance of the Subject matter , namely , what marriages are within or without the Levitical Degrees ? Questions of that nature being ( as must be confessed ) regularly to be decided by the Law Divine , whereof the Ecclesiastick Courts have generally the Conizance : For it were improper for us to resolve a Question in a Law , when it was left to an after Inquiry , whether we had any Conizance of , or skill in that Law , by which the Question was to be determined .

There was a time when the Temporal Courts had no Conizance of lawful or unlawful marriages ; so was there a time when the Ecclesiastical Courts had no Conizance of matters Testamentary and probat of Wills , Hensloes C. 9. Rep. but the Law-making power of the Kingdom gave them that which they had not before , and the same hath given the Temporal Courts this now , which they had not in former times . By Conizance in this sense , I intend Jurisdiction and Judicial Power , as far as it extends , concerning the lawfulness of marriages , which an Act of Parliament hath given them .

Notwithstanding it will be said , They want knowledge or skill in the Law by which it must be determined what are , or are not , the Levitical Degrees ; for they are not studied in that Divine Law , they want skill in the Original in which it was written , and in the History by which it is to be interpreted .

As specious as this seems , it is a very empty Objection ; for no man is supposed necessarily ignorant of a Law which he is bound to observe . It is irrational to suppose men necessarily ignorant of those Laws , for breach of which they are to be punisht , and therefore no Canon of Divine or Human Law , ought to be supposed unknown to them , who must be punisht for transgressing them . We are obliged not to marry in the prohibited Degrees , not to be Heretical , or the like ; therefore we are supposed to know both .

Nor is it an Exception to disable a man of having any Church Dignity whatever , that he is not knowing in the Hebrew or Greek Tongue . All States receive the Scriptures in that Language wherein the several States think fit to publish them for common use ; and it is but very lately that the Christian Churches have become knowing in the Original Tongues wherein the Scriptures were written ; which is not a knowledge of obligation , and required in all , or any , but acknowledged accidental , and enjoy'd by some .

If it were enacted by Parliament , That matters of Inheritance of Theft and Murther , should be determined in the Courts of Westminster , according to the Laws of Moses , this Objection would not stand in the way , no more can it in this particular concerning Incestuous marriages .

The Laws of one people have frequently been transferred over and become the Laws of another : As those of the Twelve Tables from Greece to Rome ; in like manner those Laws of the Rhodians for Maritime Affairs , made the Law of the Romans ; the Laws of England into Ireland : and many such might be instanced .

As another lymn of this Objection , it is said , This Act 13 H. 8. seems rather a directing Act , how the Courts Ecclesiastical should proceed touching marriages out of the Levitical Degrees , than an Act impowering the Temporal Courts to prohibit their proceeding .

When the King's Laws prohibit any thing to be done , there are regular ways to punish the Offender : As for common Offences by Indictment or Information . Erronious Judgments are remedied by Writs of Error or Appeal . Incroaching Jurisdiction by Courts where no Writ of Error lies , is corrected by the King's Writs of Prohibitions . It is most proper for the King to hinder the violating of his Laws , by impeaching of marriages which the Law will not have impeach'd , by incroaching Iurisdiction , as to hinder them from impeaching or drawing into question Contracts for Lands , or other things whereof they have not Conizance . And the King hath never otherwise remedied that fault against his Laws , but by his Prohibitions out of his Courts of Iustice .

Nor is it consonant to Law or common Reason , That they who offend , by incroaching Jurisdiction against Law , should be the redress allowed by Law only against such incroachment , which were to provide against doing wrong by him who doth it .

By the Act , no person of what estate or condition soever , Rep. 1 , 2. p.m. but that was Rep. again 1 El. c. 1. is to be admitted to any of the Spiriual Courts , and to any Process , Plea , or Allegation , contrary to the Act.

This Act therefore never intended the Ecclesiastick Courts should have any Judicial power to determine or judge what marriages were within or without the Levitical Degrees , contrary or not contrary to the Act , when it admits not any Process , Plea , or Allegation in a Spiritual Court , contrary to the Act.

For it is impossible that Court should have Conizance to determine the lawfulness or unlawfulness of a marriage , which is forbid to admit Process , Plea , or Allegation against such marriage , if it be lawful .

1. This marriage not prohibited in the 18. of Leviticus , nor the same degree with any there prohibited .

2. If marriages , neither prohibited in terminis in Leviticus , nor being in the same degree with a marriage there prohibited should be unlawful , there would be no stop or terminus of unlawful marriages .

3. The 20. of Leviticus prohibits no other marriages than the 18. of Leviticus doth , but appoints the punishments , which the Eighteenth doth not .

4. Not now to determine , Whether the marriages mentioned within Leviticus 18. be only prohibited , or marriages within the degrees there mentioned : The Talmudists hold the first ; the Karaits the second strongly : who in most concurr with our Parochial Table .

5. This marriage not prohibited by the Canons 1 Jac. Can. 99. nor contained in the Parochial Table .

6. Marriages between the Children and Parents in the ascending line intermediately prohibited ; and for what Reasons .

7. How the words ( Gods Law except ) in the Act of 32 H. 8. and the words ( or otherwise by Holy Scripture ) in the Act of 28 H. 8. c. 16. are to be intended .

8. The Defendant doth not Article , That the Vncle , Bartholomew Abbot , did carnally know Jane his wife , and then the marriage is not against Gods Law , by 28 H. 8. c. 7

The mischief by the Act of 32 H. 8. was , That the Bishop of Rome had always troubled the meer Iurisdiction and Regal Power of the Realm of England , and unquieted the Subject by making that unlawful , which by Gods word is lawful , both in marriages and other things .

Therefore it is thought convenient for this time , that two things be with diligence provided for .

The first was against dissolution of marriages consummate with bodily knowledge , upon pretence of Pre-contracts .

The other by reason of other prohibitions , to marry than Gods Law admitteth ; As in Kindred or Affinity between Cosen Germans , and so to the fourth and fifth Degree ; which else were lawful , and be not prohibited by Gods Law . — Again , that freedom in them was given by Gods Law .

To remedy these two mischiefs , All marriages consummate with bodily knowledge between lawful persons , and all persons are declared to be lawful to marry which be not prohibited by Gods Law , are made lawful by Authority of Parliament , notwithstanding any Prae-contract , &c.

But this part of the Clause to make good marriages notwithstanding pre-contracts , is repeal'd , 2 E. 6. c. 23. 1 El. c. 1.

The other Clause remains , which declares all persons lawful to marry who are not prohibited by Gods Law , but is of no use to remedy the second mischief .

For if the Pope shall expound what persons of Consanguinity or Affinity are prohibited by Gods Law to marry , he will expound Gods Law as the Canons and Popes formerly did .

That by the Word of God no man is to uncover the nakedness of the Kindred of his Flesh , and therefore marriage is prohibited as farr as there are names of Kindred and memory , which is the reason of the Old Canon Law to prohibit to the Seventh Degree , for further they had not names of Kindred . And if it would have remedied the Inconvenience , to say in the Act , That all marriages were lawful , not prohibited by Gods Law , and leave the Pope then to resolve what was prohibited by Gods Law , it was to no purpose to have added more words to the Act , but to have ended ther , and the inconvenience of prohibiting marriages , for Consanguinity or Affinity , when God did not prohibit , had still remain'd .

But the Act goes on , And that no Prohibition or Reservation ( Gods Law except ) should impeach any marriage for Consanguinity or Affinity , for so it must be understood without the Levitical Degrees , for that was the second thing specially to be provided for ; as the Act saith .

Not that no marriage should be impeached without the Levitical Degrees , which the Act intended not at all , nor was it the thing to be provided for , but not to be impeached for Kindred or Affinity without the Levitical Degrees ; as in Cosen Germans , and so forth .

For who will say , That by those words no marriage shall be impeached without the Levitical Degrees , the Act intended that no marriage for natural Impotency , for plurality of Husbands or Wives for Adultery , and the like , should not be impeached , though it were out of the Levitical Degrees .

For the Act had no aspect upon such marriages , but to hinder impeaching marriages for Consanguinity or Affinity , without the Levitical Degrees , which was the second thing by the Act , to be at that time diligently provided for .

Therefore those words , Gods Law except , must referr to such other marriages , as by Gods Law might be impeach'd , and not to any for Consanguinity or Affinity , for had not those words been the generality of the Expression , No marriage shall be impeach'd without the Levitical Degrees , had excluded the impeaching marriages for plurality of Wives or Husbands , at a time for Impotency and for Adultery , as Sir Edward Coke observes , at the end of his Comment upon this Statute in his Second Institutes .

But if those words , No marriage shall be impeach'd , Gods Law except , shall be understood , That no marriage should be impeach'd , not prohibited by the Scripture , viz. Gods Law . Then

1. There was no use of naming the Levitical Degrees at all .

2. The Pope would have interpreted the Scripture ( which belong'd to him ) to have prohibited all marriages between Kindred , as anciently , and then the end of the Act had been frustrate .

3. Wherein was the Kings Iurisdiction and Regal Power righted , if prohibiting of marriage for Consanguinity or Affinity , were to be proceeded in as formerly .

But all marriages without the Levitical Degrees , being made lawful , because the Secular Iudges by the Act of 28 H. 8. c. 7. had certain Conizance of them both expresly , and in Consequence they were no more of Ecclesiastical Conizance than Contracts concerning Land or Lay Chattels were , and therefore the questioning of them to be prohibited as the other .

This was to complain of the Pope as a wrong doer against the Law of God , viz. Holy Scripture , and diligently to provide remedy for it according to the Scripture , whereof the wrong doer was the only decisive and infallible Interpreter , as the Church then believed : which is redressing a wrong by the Iudgment of the wrong doer .

Anciently , before any Act of Parliament alter'd the Law , the lawfulness or unlawfulness of marriages , and which were incestuous , which not , were only of Ecclesiastical Conuzance , and the Temporal Courts medled not to ratifie or prohibit any marriage .

The Statute de Circumspecte agatis .

13 E. 1. Circumspecte agatis de Negotiis tangentibus Episcopum Norwic . & ejus Clerum non puniendo eos , si placitum tenuerint in Curia Christianitatis de his quae mere sunt spiritualia , viz. de Correctionibus quas faciant pro mortali peccato , viz. pro fornicatione , adulterio , & hujusmodi .

Mag. Chart. Cok. f. 488. upon that Statute . Sir Edward Coke in his Comment upon this Statute , and those words , viz. pro fornicatione , adulterio , & hujusmodi , which by the express words of the Statute are said to be mere Spiritualia , saith , and truly , That the word hujusmodi must be understood of offences of like nature with Fornication and Adultery ; as for solicitation of a womans Chastity , which is less than Fornication or Adultery ; and for Incest , which is greater . So as the Conuzance of Incest was meerly Spiritual , and concern'd not the lay Law at all originally .

2. There was no time wherein some marriages were not lawful , and others unlawful , but the Iudgment of both was meerly Ecclesiastick ; insomuch , That if a man were question'd in the Spiritual Court for a lawful marriage , the Temporal Law would afford him no Remedy by Prohibition , or otherwise , because they neither had any Iurisdiction of that Subject matter , nor were presumed to have any knowledge in those Laws , by which such matters were to be determined , which were the Laws of God , contained in the Scriptures and the Canon Law , either by Councils , or the Popes Decretals admitted in the Kingdom .

3. Although the Canon Law had been formerly relaxed , and the lawfulness of marriage enlarged by Councils and Decretals , as they might be , and were , so as sundry marriages became lawful , which were before Canonically prohibited .

Thus it happen'd in the Council of Lateran , Concil. Lateran . sub Innocent. 3. 1215. Seld. de Jure Natur. f. 608. under Pope Innocent the Third ; In quo Sancitum prohibitionem Copulae Conjugalis quartum Consanguinitatis & Affinitatis gradum , non excedere , quoniam in ulterioribus gradibus , jam non potest absque gravi dispendio hujusmodi prohibitio generaliter observari ; ( for before many Degrees beyond the fourth were forbid ) yet could the Common Law take no notice of this enlargement of lawful marriages , nor did not .

Because the lawfulness still depended upon the Law Divine , and the Canon Law , as then it stood by that alteration whereof the Secular Judges had no Conuzance or Skill to Iudge ; nor is there any Prohibition in the Register , or elsewhere to be found , concerning the questioning of any marriage in the Spiritual Court , in all the time preceding the Acts of Parliament , nor long after some of them .

But if at the time of this Council it had been enacted by Parliament , That all marriages should be lawful after the fourth Degree from Cosen Germans inclusively , then if such marriages had been questioned in the Spiritual Courts , a Prohibition had lain , because a marriage was questioned which an Act of Parliament had expresly made lawful , and whereof the Secular Judges were the most Conuzant .

But if then , by an Act of Parliament , all marriages had been made lawful , not prohibited by Gods Law , or not prohibited in the Old or New Testament , though by that Act all marriages prohibited by Canon Law , and not by Scripture , had been made lawful ; yet the Temporal Courts had thereby no manner of Iurisdiction in Cases of Marriage , because the lawfulness of them were still to be measured by a Law out of their Conuzance , that is , by the Divine Law : And such an Act of Parliament was directory only to the proceeding of the Spiritual Iudges in Cases of Matrimony , and no way advancing the Iurisdiction of the Temporal Courts , nor enabling them to prohibit the questioning of any marriage .

The Law and Reason of it being thus stated before the Acts of Parliament of 25 H. 8. c. 22. 28 H. 8. c. 7. 28 H. 8. c. 16. 32 H. 8. c. 38. 25 H. 8. c. 22. 28 H. 8. c. 7. 28 H. 8. c. 16. 32 H. 8. c. 38. We will see what alteration was induc'd by these respective Statutes in order .

And first the Act of 25 H. 8. hath these words — Since many inconveniences have fallen , as well within this Realm , as in others , by reason of marrying within the Degrees prohibited by Gods Law .

( That is to say )

The Son to marry the Mother .

The Son to marry the Step-mother .

The Brother to marry the Sister .

The Father to marry his Sons daughter .

The Father to marry his Daughters daughter .

The Son to marry his Fathers daughter , procreated and born by his Step-mother .

The Son to marry his Aunt , his Fathers Sister or Mothers Sister .

The Son to marry his Uncles Wife .

The Father to marry his Sons Wife .

The Brother to marry his Brothers Wife .

A man to marry his Wives daughter .

His Wives Sons daughter .

His Wives Daughters daughter .

His Wives Sister .

Which Degrees 1. are the Degrees expresly mentioned in the Eighteenth Chapter of Leviticus , and were for matter and language by this Act first made of Lay Conizance .

It declares those Marriages to be plainly prohibited by Gods Law , that notwithstanding they have sometimes proceeded by colour of Dispensation by mans power , which ought not to be ; For no man can dispense with Gods Law , as the Clergy in the Convocation , and most of the famous Universities of Christendome , have affirmed , &c.

Then it enacts a Separation by definitive Sentence in the Spiritual Courts of the Kingdom , without Prohibition from , or Appeal to , Rome of such marriages .

The next Act of Parliament concerning marriages prohibited , 28 H. 8. c. 7. is 28 H. 8. c. 7.

By which Act the former Act of 25. is repeal'd , not for the matter of the marriages there prohibited , as is said in that Act , and therefore

In the same words , The marriages within those Degrees are recited again , and declared to be prohibited by Gods Law .

But with these differences , that in the Prohibition ,

1. Of the Sons marrying the Step-mother , is added , Carnally known by his Father .

2. In the Prohibition of marrying his Uncles Wife , is added , Carnally known by his Uncle .

3. In the Prohibition of the Father to marry his Sons Wife , is added , Carnally known by his Son .

4. In that of the Brother to marry his Brothers Wife , is added , Carnally known by his Brother .

5. In those of marrying a mans Wives daughter , So Sir Edw. Coke referrs the Levitical Degrees to this Act. Second Inst. f. 683. or her Sons daughter , or her Daughters daughter , is added , having the Carnal knowledge of his Wife . By this Act these Degrees were the second time made of Lay Conizance .

Another alteration in this Act from the former , is , That if any man carnally know any woman , all persons , in any Degree of Consanguinity or Affinity of the parties so offending , shall be adjudg'd to be within the said Prohibitions , in like manner as if the parties so carnally knowing one another had been married . For example , If a man carnally know a woman , not marrying her , he is prohibited to marry her Daughter , or Daughters daughter , & è converso .

In all other Clauses this Act , and the former of 25. are verbatim the same , and this Act is in force .

Observations upon those two Acts 25 & 28 H. 8.

1. That by neither of these Acts , no marriage prohibited before , either by Gods Law , or the Canon Law , differenc'd from it is made lawful .

2. That the marriages particularly declared by the Acts to be against Gods Law , cannot be dispens'd with ; but other marriages , not by the Acts declared in particular to be against Gods Law , are left , statu quo prius , as to dispensations with them .

3. That neither of these Acts gave any Jurisdiction to the Temporal Courts , concerning marriages , more than they had before , but were Acts directory only to the Ecclesiastick proceeding in matters of marriage .

4. Neither of these Acts say or declare , That the Degrees rehears'd in the said Acts , and thereby declared to be prohibited by Gods Law , are all the Degrees of marriage prohibited by Gods Law .

For take the words at most advantage for that purpose , viz. Since many inconveniences have fallen by marrying within the Degrees prohibited by Gods Law . That is to say ,

The Son to marry the Mother , the Brother the Sister , &c. and that the enumeration in the Act of prohibited Degrees , had gone no further than to the Degrees of Consanguinity , not enumerating any Degrees of Affinity ; as then it had been no Inference to conclude that there were no more prohibited Degrees by Gods Law intended by the Statute , than the Degrees of Consanguinity only .

So now no Degrees being mentioned in the Statute to be prohibited by Gods Law , but those which are express'd , it cannot thence be concluded , That the Statute intended no other than those to be prohibited by Gods Law .

For those are therefore mentioned to be prohibited , because they were Degrees signally expressed , and concerning which no question or doubt could be made .

In the same manner is it if a Statute should say , Since many Inconveniences have happen'd , by doing things prohibited by the Kings Laws ; that is to say , By Depopulation of Farms , by subtracting of Tithes , by committing Dilapidations , and of many other things forbidden by the Law .

It would not be concluded , That the things so enumerated , were all the things prohibited by the Kings Laws , no more can it that the enumerated Degrees of prohibited Marriages in the Act by Gods Law , are all the Degrees by Gods Law prohibited .

The next Statute is an Act of the same Parliament , 28 H. 8. c. 16 28 H. 8. c. 16. making invalid Licences , Dispensations , Bulls , and other Instruments purchas'd from Rome : Which Act hath these words ;

That all Marriages solemnized within this Realm , By this Act the Levitical Degrees are made the third time of Lay Conizance . or in any the Kings Dominions , before the Third day of November , in the Six and twentieth year of the King , whereof there is no Divorce had by the Ecclesiastick Laws of the Realm , and which be not prohibited by Gods Law , limited and declared in the Act made this present Parliament , for establishing the Kings Succession , or otherwise by Holy Scripture , shall be lawful and effectual by Authority of this present Parliament .

1. By this Law all Marriages made before that Third of November , 26 H. 8. no divorce being had , are made good and lawful .

2. All Marriages made before that time , and not prohibited in the Degrees limited and declared in the Act of 28 H. 8. c. 7. if the Act had rested there , and gone no further , had been made good ; and if any of them had been questioned , a Prohibition would have lain out of the Temporal Courts , because the unlawfulness of marrying was restrained to the Degrees limited in 28 H. 8. c. 7. whereof the Temporal Judges had perfect Conizance , as of a lay Law ,

But the Act going further , and saying , Prohibited by Gods Law , limited in the Act of 28. or otherwise by Holy Scripture , leaves , as is objected , all Conuzance of Marriages as before , to the Ecclesiastick Courts , though not so amply .

So by those added words , Or otherwise by holy Scripture , the Act made all Marriages solemnized before that time , not prohibited by Holy Scripture , good and lawful ; by which Act , though Marriages prohibited only by the Canon Law , divided from Scripture , were made good .

Yet the tryal was , Whether the Marriage was prohibited by Holy Scripture ? which being only of Ecclesiastick Conizance , they only could judge of the lawfulness .

And that the Temporal Courts could by that Act no more judge what Marriage was lawful or Incestuous by the Holy Scripture , than what was Schism or Heresie by the Holy Scripture .

3. By this Act it is evident , The Law-makers thought some Marriages were , or might be prohibited by Gods Law , not limited in the Act of 28 H. 8.

So if the Act had limited all Marriages lawful , but those forbidden in the Five Books of Moses , or in the Book of Moses called Leviticus ; though the unlawfulness of Marriage had been more restrain'd under that expression , than under the general expression of Holy Scripture . Yet

Those Books being part of Holy Scripture , the Secular Iudges had no more Conuzance of the parts than of the whole .

And so would it have been if the Act had restrained the unlawfulness of Marriage to the Eighteenth Chapter of Leviticus , that being a part of the Book called Leviticus , the Temporal Courts could have no more Conuzance of that part or Chapter of the Book , than of the whole Book . This I think is the full of the Objection .

The last Law , and which is Cardo Questionis , as being pleaded by the Plaintiff Harrison in the Books , is the Act of 32 H. 8. cap. 38. consisting of several parts , 32 H. 8. c. 28. some whereof are Repeal'd ; as the branch concerning Pre-contracts .

I shall therefore examine that Act as it stands in force .

1. Marriages between Cosen Germans , and all Marriages onwards between Collateral Cosens , which were prohibited very far , before the Council of Lateran , and since it , those to the fourth Degree , to the making of this Act , are made lawful , and declared not to be against the Law of God , viz , in these words , — And be not prohibited by Gods Law .

2. Restraining of Marriage by reason of Carnal Knowledge within any of those Degrees , is expresly taken away , Coke's Mag. Chart. f. 6. 84. and the Marriages declared not to be against the Law of God . In these , Sir Edward Coke in his Comment upon this Statute in his Magna Charta , is express .

So if any Marriage within those Degrees shall be questioned as Incestuous in the Spiritual Courts , a Prohibition will lye upon this Act , because the Marriages , by one part of the Act , are declared expresly ,

1. Not to be against the Law of God .

2. By another , All Marriages contracted between lawful persons , as we declare all persons to be lawful that are not prohibited by Gods Law to marry , are lawful .

Ioyning then those two Clauses together , That all Marriages are lawful , not prohibited by the Law of God ; and that such Marriages of Cosen Germans , and so onwards , are not prohibited by Gods Law : It is manifest that Prohibitions will lye in such Cases .

But these Marriages concern not the Case in question .

The next Clause in the Act , and upon which the present Case stands ,

That no Reservation or Prohibition ( Gods Law except ) shall trouble or impeach any Marriage without the Levitical Degrees .

The clear sense of which Clause must be , That all Marriages are lawful , which are not prohibited within the Levitical Degrees , or otherwise by Gods Law .

So as the prohibiting of Marriages within the Levitical Degrees , and within Gods Law , whereof the Levitical Degrees are a part , is no more or less in effect , than to say , All Marriages shall be lawful that Gods Law doth not prohibit .

Whence is collected , That of Gods Law in general , or of the Levitical Degrees in particular , being a part of that Law , the Temporal Iudges had no Conuzance after this Act more than before , and that this Act , excepting in the matter of Marriages to the fourth Degree , and onwards , which it declares not to be against Gods Law , was only directory to the Ecclesiastick Courts , as the former Statutes were , and gave the Temporal Courts no Iurisdiction to prohibit questioning any Marriage but those of Cosen Germans and onwards .

But the Judges of the Temporal Courts have long since , and often , after the Act of 32 H. 8. granted Prohibitions for questioning marriages out of the Levitical Degrees , and thereby determined the lawfulness of such Prohibitions .

So as many Parliaments having past since Prohibitions granted in that kind , without complaint of it , as is likely , but certainly without redress for it . It is not safe , in a Case of publique Law , as this is , between the Spiritual and Temporal Jurisdiction , to change the receiv'd Law , nor do I think it is expected .

That being taken then as setled , That the Spiritual Courts may be prohibited to question marriages out of the Levitical Degrees .

The first question will be ,

Whether any marriages be against Gods Law , but those within the Levitical Degrees ? for if none else be , the Temporal Courts , having Conuzance of marriages within those Degrees , have consequently Conuzance of all marriages against Gods Law . Then must the words of the Statute ,

No marriage shall be impeach'd ( Gods Law excepted ) without the Levitical Degrees , be understood thus :

No marriage shall be impeach'd ( Gods Law excepted , ) viz. his Law of the Levitical Degrees .

Cok. Litt. f. 235. a. The Authority which makes for this Exposition , is Coke in his Littleton , where these words are ;

For by the Statute of 32 H. 8. cap. 38. it is declared , That all persons be lawful ( that is , may lawfully marry ) that be not prohibited by Gods Law to marry ; that is to say , that be not prohibited by the Levitical Degrees .

By which evidently he makes all the Law of God which prohibits marriages , to be only the Levitical Degrees .

But I conceive clearly , There are other Laws of God prohibiting marriages to be made ; and if made , warranting their Dissolution ; and so intended to be by this Statute of 32 H. 8. besides the Law of God in the Levitical Degrees .

1. For persons pre-contracted to another , are prohibited by Gods Law to marry against such pre-contract .

2. Persons of natural Impotency for Generation , are prohibited to marry : For marriage being to avoid Fornication , 1 Cor. 7. v. 2. if it be useless for that purpose , as natural Impotency is , it is as null .

So is the Case of Sabell , and another Case of one Bury , Dyer 2 El. 178 divorc'd at the Suit of their Wives for Impotency .

3. Plurality of Wives or Husbands is prohibited by Gods Law , the first being not prohibited by the Levitical Degrees .

And Sir Edward Coke , Cok. Mag. Ch. f. 687. a. in the end of his Comment upon this Statute , notwithstanding the passage before in his Littleton , saith expresly , That marriages made with a person pre-contracted , or with an Impotent person , could not have been question'd in order to a Divorce , by reason of this Statute , but because such marriages are against Gods Law ; yet are they all without the Levitical Degrees . This is the reason of the words , Gods Law except , for these marriages may be impeach'd , though out of the Levitical Degrees ; this answers the words , or otherwise by Holy Scripture in 28 H. 8. c. 16. also .

In what sense any Marriages and Copulations of Man with Woman , may be said to be Natural , and in what not .

In the first place , to speak strictly what is unnatural , it is evident that nothing which actually is , can be said to be unnatural , for Nature is but the production of effects from causes sufficient to produce them , and whatever is , had a sufficient cause to make it be , else it had never been ; and whatsoever is effected by a cause sufficient to effect it , is as natural as any other thing effected by its sufficient cause . And in this sense nothing is unnatural but that which cannot be , and consequently nothing that is , is unnatural , and so no Copulation of any man with any woman , nor an effect of that Copulation by Generation , can be said unnatural ; for if it were , it could not be , and if it be , it had a sufficient cause .

There are other Males and Females , differing in their Species , which never have Appetite of Generation to each other , and consequently can never have the effect of that Appetite , the kinds whereof are innumerable .

Between these the acts of Generation are so unnatural , that they are impossible , and no restraint is necessary to such by Laws , or by other Industry .

Marriages forbidden in Leviticus lawful before .

Those marriages and carnal knowledge which are amongst the most Incestuous enumerated in Leviticus the Eighteenth , were so far from being unnatural in primordiis rerum , that they were not only natural , but necessary , and commanded in that Command of Increase and Multiply , that is , the Carnal knowledge between Brothers and Sisters .

For the World could not have been peopled , but by Adams Sons going in to their Sisters , being Brothers and Sisters by the same Father and Mother , or by a more incestuous coupling than that ; and if such Carnal knowledge had been absolutely unnatural in any sense , it had never been either lawful or necessary : For whatsoever is simply and strictly unnatural at any time , was always unnatural and unchangeable .

Marriages lawful after restoring the World in Noah .

After the peopling of the World , first from Adam , then from Noah , and to the time of Moses giving the Levitical Law : Many other marriages prohibited in the Levitical Degrees . were not only lawful , but prosecuted with the most signal benedictions and promises of God .

Gen. 20. v. 12. As the marriage of Abraham with Sarah , who was his Sister , that is , the daughter of his father , but not the daughter of his mother .

So is his answer to Abimelech , and so is the Tradition of her Genealogy .

But by the Eighteenth of Leviticus , the marriage of the Sister by the Father is prohibited to the Son , viz.

Lev. 18. v. 9. Thou shalt not discover the shame of thy Sister , the Daughter of thy Father , or the Daughter of thy Mother , whether she be born at home , or born without , &c.

The next instance is of Amram , the Father of Moses and Aaron , who married Jochobed his Fathers Sister , namely the Sister of Roath .

And Amram took Jochebed his Fathers sister to his Wife , Exod. 6. v. 20. and she bare him Aaron and Moses .

Which marriage is prohibited in the 18. of Leviticus , viz.

Thou shalt not uncover the shame of thy Fathers Sister , Lev. 18. v. 12. for she is thy Fathers Kinswoman .

Jacob had two Wives at the same time , Leah and Rachel , Gen. c. 29. &c. being Sisters ; which is a known Story .

But by the Eighteenth of Leviticus — Thou shalt not take a Wife with her Sister , during her life , Lev. 18. v. 18. to vex her in uncovering her shame upon her .

Before the Prohibitions in the Eighteenth of Leviticus , and then , and after , a man not only might , but ought , in some cases , to marry his Brothers wife , that was , if his brother died childless , as appears in the History of Tamar and Judah before the Levitical Law .

Then Judah said to Onan , Go into thy Brothers wife , Gen. 38. v. 8 , 9 and do the Office of a Kinsman unto her , and raise up Seed unto thy Brother .

Onan would not ( after a strange manner ) wherefore the Lord slew him . Lev. 18. v. 16.

But in the Eighteenth of Leviticus it is said , Deut. 25. v. 5. Thou shalt not discover the shame of thy Brothers wife , for it is thy Brothers shame .

The sequel of that History is well known , and these Instances fully prove , That those several marriages before instanced , and which are prohibited in the Eighteenth of Leviticus , were lawful before , and practised by the most remarkable men for holiness of life .

Nachor , the brother of Abraham , married Milcah , his brother Harans daughter ; so the Vncle married the Neece ; Gen. c. 11. v. 29 , 30.

To this may be added , That children from nature know not their parents or kindred from other people , and therefore their Acts , whatever they be , whether of marriage or otherwise , are ( regarding nature only ) as indifferent towards their Parents and Kindred , as towards any other men or women .

The Parents may possibly know their Children , and more especially the Mother , by a knowledge that is natural , but it is impossible the Children should naturally know their Parents . Therefore they cannot naturally know that they do transgress towards their Parents .

But the knowledge of our Parents is subsequent to nature , and not coequal with her , and ariseth from Civil Laws , Education , and common Reputation , not from Nature ; we take those for our Parents whom the Laws denote to be so .

The Theban Story of Oedipus and Jocasta his Mother , is an obvious Example in this kind , where both ignorantly married each other , and had Issue between them . Of the marriage with the Mother , Seld. de Jure naturali & gentium juxta disciplinam Ebraeorum l. 5. c. 11. the Sister , the Step-mother , anciently permitted in Persia , Greece , Egypt , and other places of the East . Vide.

Besides , what is unnatural to man , qua man , must be so to all men , and at all times : But what is unnatural to this or that individual man , is unnatural only to him , and only for the time it is so , and not to other men .

How things become unnatural by Custome .

A second way by which mens Acts are said to be unnatural ( and are so in some measure ) is , When Laws Divine or Humane , do supervene upon mans original nature with great penalty for transgressing them . Mens education , à teneris Annis , to observe those Laws , the infamy attending their violation , and the religious customary observance of them , implant a horrour and aversness to break them ; so that by long custome they are not observ'd , only to avoid the punishment , and as things which were otherwise indifferent , but are observed , from an aversness and loathing , begot by Custome , to transgress them . That though men were secure from the punishment , if they broke them , yet Nature denies all appetite and inclination to violate them .

This kind of secondary Nature is eminently seen in mens aversness from some things for Food , which Custome had made detestable . As eating the Flesh of Men , Bears , Horses , Dogs , Cats , and many other things which nauseate men , and are offfensive upon no other account than that Custome hath made them so , not primitive Nature , and which upon tryals of Famine have been found both eatable and nourishing ; and by contrary Custome among some other Nations or People , are as desirable as other Food , as is exampled in the Anthropophagi , the Canibals or Men-eaters .

In this secondary way , the Copulation with the Mother , Sister , and the like , do become odious and reluctant to Nature , and generally are so where Humanity is well planted , which in the original state of nature , and without those induc'd Laws , Education , and Custome of Manners , had been as indifferent as with other women . To this purpose there is a passage , and a true one , in Simplicius , speaking when the Grecians began to desert their Incestuous marriages . — Jam cum lex & consuetudo , Seld. de Jure naturali , c. 11. f 605. sororis & fratriae consuetudine interdicat , Appetitiones non secus ac ab ipsius naturae Imperio suppressae , ita prorsus sunt immobiles , nisi forte aliquos furoris Intemperies , & dirae scelerum ultrices agitarent .

So Lucan of Incest with the Mother , Luc. l. 8. — Cui fas implere parentem Quid reor esse nefas ? —

To this secondary Nature , 1 Cor. c. 11. v. 13 , 14 , 15. hath that of St. Paul to the Corinthians reference , where he saith ,

Doth not Nature it self teach you , That if a man have long hair , it is a shame unto him ? Where no other Nature can be understood but Manners and Custome .

And for this are the Egyptians upbraided in the Prophets Isaiah and Jeremy for their Bestiality , in Copulation with their nearest Relations ; as is most frequent in Story .

That their Flesh was like the Flesh of Horses , and their Issue as the Issue of Asses . They not observing any order of Coitus , other than was found in Horses and Asses ; which is the true meaning of that place . In this way it is true , that such Incestuous marriages are unnatural , and so never made by those in whom Custome hath begot a horror and aversion to them ; but on the other side , to them which have it not , there is no unnaturalness in them ; for Nature originally hath not implanted that aversness in them , nor Custome prevailed to beget it , as it hath in the others .

Of transgressing natural Laws , and in what sense that is to be understood .

A third way of mens acting unnaturally is , when they violate Laws coeval with their original being , though the Laws be but positive Divine , or positive Human Laws , and not of nature , primarily , nor in any other sense , intelligible to be Natural Laws . But that they bind men as soon as men can be bound , and no Law can possibly precede them .

A second reason of their being natural Laws properly , is , because mans nature must necessarily assent to receive them as soon as it is capable of assenting , and hath no power to dissent from them ; for a man hath no power to dissent from , or not to assent to his own preservation , or not to dissent from his own destruction : But not to assent to the will , that is , to the Laws , of an Infinite Power , to hurt and benefit , is , to assent to his own destruction and infinite hurt , and to dissent from his own preservation and infinite benefit ; for infinite power can hurt or benefit as it pleaseth . Therefore to assent to the Laws of the Deity is natural to man .

The Jews , with great constancy , speak of such Laws as given to all mankind in this particular matter of marriage , and carnal mixture , and derive them traditionally through all antiquity , as binding all Nations and People by Gods Precept , and therefore call them , among others so given , Leges Noachidarum , or the Laws of all the Sons of Noah , by which men were from the beginning prohibited .

1. Marriage or Copulation with their Mother .

2. With the Fathers wife .

3. With a Sister by the same Mother , or with a Soror uterina .

4. With the Wife of another man .

5. Man with man .

6. Man or Woman with Beast .

From these Laws they justifie Abrams marrying his Sister by the same Father , Amrams marrying his Fathers Sister , Jacob marrying two Sisters at the same time , Thamars endeavouring to marry her Husbands brother , as not prohibited , before the Levitical Law , or any other marriage , those before mentioned excepted .

And as to Adams Sons marrying their Sisters by the same Mother , the Law was given in the beginning prohibiting it , but God dispens'd with it until the World was competently peopled , as they receive it .

And it is observed by Mr. Selden , That upon the Tradition of this general Law , 1 Cor. 5. v. 1. St. Paul rebukes the Corinthians for permitting among them such a Fornication , that is , such an Incest as was not named among the Gentiles , That a man should have his Fathers wife . Some Examples of which were in Syria , as in Antiochus and Stratonice .

In this sense it is said , A man is a natural Subject when he is so born , and is bound by the Law of his Allegiance as soon as he is , and that a Prince is that Subjects natural Soveraign , because he is bound to protect him as soon as he can be protected . Of which kind of Law of Nature , much is said in Calvins Case , but confusedly , and without clearness of conception : For these Laws of a mans subjection as soon as he is born , being the immediate means of his preservation and good , cannot but be assented to as soon as it is possible to assent , and in that are called Natural Laws .

Of the Natural Laws , in this sense given to all Mankind by the Deity , from the beginning of time , concerning Marriage and bodily knowledge , See excellent matter in that incomparable Work of Mr. Selden , De Jure Naturali & Gentium Juxta disciplinam Ebraeorum .

And under this sense of Natural Laws hath he titled that Book , De Jure Naturali & Gentium Juxta disciplinam Ebraeorum ; for so the Iews accounted the Laws , or Leges Noachidarum , given in the beginning to all Mankind , Natural Laws , though they were in truth but positive Divine Laws , because with relation to Mankind , there was no time wherein they oblig'd not .

In what sense a man is said to act unnaturally against Civil Laws or Agreement .

There is a fourth way whereby a man is said to act unnaturally , which acting is subsequent to Human Laws and Contracts between man and man , which is , when after Laws made , and Contracts civilly setled , a man shall oblige himself diametrally repugnant , and contrary to his former Obligation . As when

A Subject shall by Oath promise , or otherwise bind himself , to judge or force his King , when by his Obligation to his King , he is bound to obey him , and be judg'd by him .

When a Servant shall command and compel his Master , by whom he ought to be commanded .

To contract marriage with two Husbands , when plenary duty and obedience is to be paid to each ; and therefore impossible to be performed to both . So is it with a Servant who contracts his absolute Service to two Masters at the same time ; those things are unnatural , as not consisting with the nature of the Obligation a man or woman is under , whereof much hath been already said .

The Levitical Prohibitions of Marriage are no general Law , but particular to the Israelites .

1. All the Prohibitions of the Levitical Degrees were not coeval with mankind , as some were , viz. Marriage with the Mother , the Soror uterina , the Step-mother .

2. They were not in the restoration of mankind declared to Noah , as a Law for mankind : Both these appear by the marriages of the holy men before mentioned , within many of those Degrees .

3. They were undoubtedly deliver'd by Moses to the Jews , but not to mankind ; for Moses neither did , nor could , publish them as the World was then peopled , to mankind . And a Law not published , is no more obligative than a Law only conceal'd in the mind of the Law-giver is obligative .

4. As they were delivered to the Jews only by Moses , they bind other Nations no more than other laws of the Jews do , concerning other Subjects , as the laws of succession and inheriting lands or goods .

5. They must then be made obligative , if at all , to the generality of Christians by the New Testament ( but by what medium can that be proved ) ?

6. They are not obligative to Christians any where , as to the Jews , which appears by the law of raising seed to the Brother : vid. Canon to that purpose de Divortiis ; And by the marriage of two Sisters successively , but not together .

7. Were they obligative to Christians , as to the Jews , then all Christians would be bound to the same punishment as the Jews were for transgressing them , which was never heard . It remains then that Christians are bound to them upon another account .

Besides , it is manifest in the Fifteenth Chapter of the Acts , that when divers taught , That if the Gentiles would be saved , they must keep the Law of Moses .

It was upon that very Question resolv'd in a Council of the Apostles , It was a yoke , neither they , nor their Fathers , were able to bear .

It seem'd good to the Holy Ghost , and to them , to lay no more burthen on the Gentiles , than to abstain from some necessary things : that is , 1. From things offered to Idols . 2. From things Strangled . 3. From Blood . 4. From Fornication .

Which necessary things , are after clearly expounded by St. Paul to the Corinthians , not to be things unlawful simply , but convenient , to keep a Communion between the Jews and Gentiles , that is , the Old Church and the New .

It is further cleared , That this law was no more ( than the other Judicial laws ) given to the Gentiles .

For when the Gentiles , which have not the law , Rom. 2. v. 14. do by nature the things contained in the Law .

What is then the preferment of the Jew ? or what is the profit of Circumcision ?

Rom. 3. v. 1 , 2. Much every manner of way , chiefly , because unto them were committed the Oracles of God .

There is no colour of Argument , That the Prohibitions in the Eighteenth of Leviticus , were universal laws ; but that it is said ,

Lev. 18. v. 24. Ye shall not defile your selves in any of these things ; for in all these things the Nations are defiled which I cast out before you .

Lev. 18. v 27. For all these Abominations have the men of the Land done , &c.

How could the Land be defiled ? or the men of the Land ? Or ,

How could they be Abominations , if not prohibited ?

To the 24. and 27. Verses of the Eighteenth Chapter of Leviticus , the Answer is , That those words referr to those universal laws of the Leges Noachidarum , wherein Egypt and Canaan were defiled : As Incest with the Mother , Soror uterina , the Fathers wife ; and to those horrid offences of lying with man or beast , prohibited to all mankind from the beginning . And if the Levitical Incest were prohibited to the people of Egypt or Canaan , by some extraordinary publication ( which is not probable ) it follows not therefore they were prohibited to all mankind , the words before referring but to those Nations , or to one of them .

Concerning universal Obligation to the Levitical Prohibitions in Cases of Matrimony and Incest .

Though it be generally receiv'd by the Christian Churches from the primitive times of Christianity , That all Christians are obliged to observe those Prohibitions , as such which Human Authority cannot dispense with ; yet by what Law that Obligation was introduc'd upon the Gentiles , converted to Christianity , is not known with any satisfactory clearness . For ,

1. It is evident they are not bound by them , as they were Laws promulged by Moses to the Hebrews , both because a Law deliver'd to a particular man , or men , or to a particular Nation , or Nations , is not universal to mankind , nor binding them under any reason of a Law ; for every Precept or Prohibition is but to him or them to whom it is given .

2. There being many several States , who had their Civil Power and Jurisdiction separate from that of the Jews , the promulging of a Law by Moses to the Jews , could be no promulgation of it to different Nations , under other Civil Powers , and though the Jews believed Moses a Messenger of God's ( and so were bound to what he delivered , as by that office ) other Nations , who believed not so of him , were not bound by his Testimony , had he testified to other Nations the same things to be the will of God to them , as he did to the Jews , which he never did , nor could . Nor are other Nations bound to the Decalogue , quatenus published by Moses , for the same reason , but are bound only to what is moral of it .

3. Without a sufficient promulgation of a Law , it obligeth no more than a Law conceiv'd only in the mind of the Law-giver .

4. If Moses his Laws , in cases of Incest , extended to mankind , quatenus reveal'd to the Jews , mankind were equally bound to all other the Mosaick Laws ( whereof no alteration had been made upon the coming of the Messias ) which is contrary to the perswasion and practise of all the Gentile Nations converted to Christianity at the beginning of it , and ever since .

5. It is likewise contrary to the determination of the Holy Ghost , and the Apostles , at the great and first Council of Antioch , mentioned in the Fifteenth of the Acts , where the Gentiles were directed to observe but four Particulars of the Mosaick Law , as necessary for them , but upon what reason more necessary than the rest observed by the Christian Iews , is not clear .

6. It is true , That by some of our Statutes many of the Levitical Prohibitions are affirmed to be Gods Law , obligative to us , yet the Particulars are not therein named the Levitical Prohibitions , or to be according to the Mosaick Law ; and many Levitical Prohibitions are omitted in the enumeration of the marriages against Gods Law , made by those Statutes .

And though such declaration of them to be by Divine Law , be concluding , as to any gain-saying of ours , yet , as to others not subject to the same Authority with us , such declaration may not only be of no authority , but may be accounted sensless and absurd .

I shall therefore endeavour to shew in what notion some of those Prohibitions may be obligative , as universal positive Law , and some obliging as moral Laws , and so universal and of Divine Obligation ; the residue obliging not , quatenus delivered to the Jews , but as the same Laws delivered to them , are made universal by a new Obligation .

1. And first , All those Prohibitions mentioned in the Eighteenth of Leviticus , were positive Laws of God to them , quatenus they relate to , and terminate in degrees of Kindred therein specified ; and the breach of them punishable by the punishments ordained to that end in the Mosaick Law . And in these respects none of them are binding to any other people than the Hebrews .

2. Divers of those Prohibitions are likewise of moral prohibition , and in that sense binding all men , as in the descending and ascending Line of Generation .

As the Father is prohibited to marry his Daughter , his Sons daughter , and his Daughters daughter , and further , the Levitical Prohibition for nearness of Kin , and for the respects before , extends not .

But the Father is likewise morally ( and universally therefore ) prohibited , not only those persons , but all others descended from them interminately , that is , as far as may be known .

So in the Ascending Line , the Son is prohibited his Mother and Grand-mother , and no further , by the Mosaick Law ; but morally not only them , but all other his great Grand-mothers interminately , as far as may be known ; and so , as well as the Son , are all Males descended lineally from him . The reason of this Moral Obligation is well given by the Learned Grotius , in these words ;

Grot. de Jure belli , l. 2. c. 5. Sect. 12. pars . 2. Ab hac generalitate eximo matrimonia parentum cujuscunque gradûs cum liberis quae quo minus illicita sint ratio ni fallor satis apparet , nam nec maritus qui superior est lege matrimonii , eam reverentiam praestare potest matri quam natura exigit , nec patri filia , quia quanquam inferior est in matrimonio , ipsum tamen matrimonium talem inducit societatem , quae illius necessitudinis reverentiam excludat , &c. And again ,

Grot. de Jure belli , l. 2. c. 5. Sect. 13. pars . 3. Ut de parentibus & liberis nihil jam dicam , quippe quos , ut existimo , etiam sine expressa lege , ratio naturalis jungi satis vetat .

By the same reason , by the Moral Law the Father or Mother cannot be Servants to their Sons or Daughters ; for as Father or Mothers , honour is due to them from those they serve ; but as Servant , honour is due from them to those they serve , that is ; their Children , who are their Masters and Superiors . As Parents , their Children , whom they serve , ought to obey and reverence them . As Servants , they are to obey their Children , who are their Masters and Superiors , and to reverence them . So as this office and relation is inconsistent and repugnant between Parents and Children , and unnatural , therefore morally unlawful .

3. There are other of the Levitical Prohibitions , that by the constant tradition of the Jews were delivered to mankind in the beginning , and which they term praecepta Noachidarum , to which they conceiv'd all the sons of Adam obliged ; and these Precepts seem warranted by several places of Holy Scripture . These are ,

That a man is prohibited his Mother , his Fathers wife , his Sister by the same venter , positively from the beginning ; but a dispensation was , as to the Sisters , until a competent peopling of the world ; they add the prohibition of another mans wife , which is also Moral , as that of the Mother is .

4. How the rest of the Levitical Prohibitions , in the matter of marriage , came to be so generally receiv'd by Christians , as being authorized and prescribed by God , seems to have no foundation so warrantable as that Council of the Apostles in the Fifteenth of the Acts.

Where the Gentiles are directed to observe , as necessary only , four particulars of Moses his Law , among which they are required to abstain from Fornication , which if it had been rendred from the Septuagint , from Incest or Turpitude of Copulation , which answered the Original best ; it had much facilitated the solution of this Inquiry .

For it hath no colour , That Fornication there should signifie the same with Stuprum and Scortum , and that it should be abstained from , as a special particular of the Law of Moses , being an Offence , not only prohibited by him ( yet not at all among the Prohibitions in the Eighteenth of Leviticus ) but by all the Nations of the Gentiles respectively , as well as by Moses . And it is plain , the word 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 there rendred Fornication , most frequently signifies in the Septuagint , both Adultery and Incest ; and indeed any unlawful Copulation of man and woman .

The ends and reasons of this general Law to Christians , might be , First .

1. If the State of the Jews ( as many particular men of that State did ) had embraced Christianity , yet the Law of Moses had still been obliging to them , as to their Civil Government , as far as it could consist with Christianity , and had been an eternal Law , not to be abrogated but by God himself , who was the Law-giver . Therefore if the Gentiles observed not such of their Laws which preserved their Communion with the Gentiles from being odious and abominated by them . The Gentiles and the Jews , though both had embraced Christianity , must never have had Communion ; the Jews being bound by God still to observe Moses's Law .

2. This detestation among them could not sort with the Precepts of Christianity , newly received by both .

3. Marrying at what remoteness of Kindred they thought fit , was in the power of the Gentiles for the future , at their own election , without transgressing their local and native Laws : And therefore induc'd no inconvenience to observe that Precept .

4. Since all Nations of the Gentiles had some restraint of marriages by humane prudence , the Apostles conceived these dictated to the Jews , to be the most convenient restraints to be voluntarily practised among Christians .

5. Other the restraints directed by that Council , all which concerned Meats , which were necessary Mediums to make Communion between men , are prohibited upon the same ground , though in themselves indifferent , and of no obligation , if not made use of in a Jew's presence , who was bound from them . But Incest being a lasting offence and scandal to the Jews , could not be concealed from them , as the eating of Meats might , and therefore was to be abstained from , with resolution to continue it , or not at all .

The three other Precepts by that Council , by Authority of the Holy Ghost , as the words import , It hath seemed good to the Holy Ghost , and to us , are only concerning Meats , that is , First , of things offered to Idols ; Secondly , of Blood ; And thirdly , of things strangled ; without abstinence from which , no Communion could be between the converted Jews and Gentiles . For ,

1. Generally , in all Nations , eating together is the most signal instance and proof of Fellowship and Communion ; and if the meat prepared be desirable by some , and odious to others of the Company , the fellowship must break .

2. Among the Primitive Christians , at their Sacramental Communion , which was essential to the Christian Religion , they had their Agapae , or Love Feasts , wherein , 2 Cor. if the Food were such as the Christian Gentiles approv'd , and was abominable to the Christian Jews , a dissolution of the Communion between them must necessarily follow , and consequently the Precepts of Christianity be frustrated , both as to form and Christian kindness .

And this Fraction must have continued as long as the Hebrews Common-wealth lasted , which might have been perpetual ; but by the dissolution of that State and Government , their Laws likewise vanished , which were peculiar to that Nation , as it will fall out in the Cases of all States , when dissolved .

If the State of England , France , or Spain , or of any other Nation , be dissolved , their respective Laws end with their dissolution ; nor is it , as to this purpose , material , whether the Laws of a Nation proceed from Divine Dictates and Authority , or Humane .

For the State being dissolved , there is no lawful Coercion left for keeping , nor punishment for violating the Laws and where that is not , there is no Law common to that people : For without coercion and punishment , every man is free , that is , he is not bound to any Law of Community , at least . But perhaps Laws may be to particular men , as to Abraham to sacrifice his Son , to which he was bound , under the displeasure of the Numen .

And thus , by the dissolution of the Hebrew Common-wealth , the Gentiles were freed from those Obligations touching Meats , because the Jews were so too . The observation of them being , after the dissolution of the State , but the pleasure of a particular person or persons , and more than in order to preserve Communion between the people of the Jews and Gentiles , those particular Precepts were of no sanctity to oblige universally , more than any other the Mosaical Institutions .

2. As before the dissolution of the Hebrew Common-wealth , it was against Christian Charity and Love , to give scandal and offence to an Hebrew , by eating Meat detestable to him , because God had bound him from it ; and the Christian Gentile might , without offending any Law , abstain from the Meat , and decline giving scandal .

So after the dissolution of the Israelitish State , when the Jew was equally free as the Christian Gentile , it grew a scandal to the Gentile , That the Jew should abhor or despise Meats which God had made lawful to the Gentile .

It hath been observed by learned men , That it may be collected from the last part of the Eighteenth Chapter of Leviticus , that there was some universal preceding Law given , to abstain from those Carnal Mixtures forbid by Moses .

Defile not your selves in any of these things , for in all these the Nations are defiled which I cast out before you , verse 24. And many of the subsequent Verses are to the same purpose . And these things are called Abominations .

Whence it is inferr'd , The people could not be faulty of transgressing , had there not been a Law , for without Law there can be no transgression .

But many Answers may be given to this , as First ,

1. From the Eighteenth of Leviticus no pretence can be of an universal Prohibition of Carnal knowledge in all the Degrees there specified , though such Prohibitions might be to the particular Nations mentioned in Leviticus and Deuteronomy , to be therein defiled ; but that is most improbable too .

2. The defiling there mentioned may be intended of Sodomy , Buggery , Incest with the Mother , the Fathers wife , the Soror uterina , Adultery , agreed by the Jews to be universally prohibited , which they term Leges Noachidarum , and which are the Offences last mentioned in the Eighteenth of Leviticus before , vers. 24. before cited .

3. The marriages of many persons eminently in Gods favour , before the Mosaical Law , as Abrahams marrying Sarah his Sister by the Father ; Jacob's marrying two Sisters ; Amram's , Moses his Father , marrying Jochebed his Fathers Sister ; Marrying the Brothers wife , as in the Story of Onan before the Mosaical Prohibitions ; Nachor's , Abrahams Brother , marrying Milcah his Brother Harams daughter ; and the strong Opinion that Judah himself married Thamar his Daughter in law , as well as he had Coition with her , &c. permits not to believe many Copulations mentioned in Moses his Prohibitions , to have been before universally prohibited .

4. If among the Nations cast out before the Jews , as defiled in these things , Humane Laws had been made among them , as in every Nation of the Gentiles was usual to prohibit some marriages for nearness of Cognation ; and those Nations had not observed , but transgressed their own Laws , as is usual in all places , to offend against their known Laws , God might therefore punish them , as daily he doth , and did always the Gentiles for not keeping their own Laws , vid. Paul to the Romans per totam Epistolam .

5. Though men cannot justly make people suffer , but for transgressing Laws which they might have kept ; yet the Numen , who is just when he exerciseth absolute Dominion over his Creatures , may inflict sufferings upon a Nation for doing things he likes not , and therefore call such things abominable ; as there is an Ill which begets the making of Laws to obviate and prevent it , as well as an Ill in transgressing Laws when they are made . And he which doth contrary to natural prudence , and his own perswasion of what is best , may incur the displeasure of the Numen , as well as for transgressing a Rule or Law which he might have kept . And though this way of punishing is not proper to men , it is as proper , as the other to the Deity , to whom mans thoughts , purposes , ends , and means , are open .

That the abstaining from Incestuous marriages , according to Moses his Law , was a part of the Mosaical Law , precepted to be observed by the Gentiles at that Council , I think can be little doubted , and not the abstaining from what is accounted simple Fornication , which even by Moses his Law was often satisfied by marriage of the woman , and often by mony .

But it seems difficult , How that Precept , or the observance of it , could either cause , or preserve Communion between the Jews and the Gentiles , as those others did concerning abstinence from Meats prohibited to the Jews , and not to the Gentiles .

For first , Alliance and Affinity between the Jews and the Gentiles , before , and by the Law of Moses , was absolutely forbid , though the Gentiles ( as many of them did for many prohibited marriages ) had abstained by their own peculiar Laws from all those marriages prohibited the Jews . Therefore their Communion by Alliance or Affinity had received no advancement by abstaining from Mosaical Incests in that respect .

But besides the general Interdict of Alliance with the Gentiles , the Iews were interdicted in a special manner , any alliance or conversation with the Nations , whose Land they were to enjoy and inherit , and who were cast out before them , as being defiled in all those Copulations of Kindred , prohibited the Jews , Lev. 18. v. 24 , &c. as appears from Verse the Four and twentieth to the end of the Eighteenth Chapter of Leviticus , and which Iniquity was visited by making the Land vomit out the Inhabitants .

2. Verse the Thirtieth , the Jews are charged not to commit any one of those abominable Customes committed before them ; and if they did , they were punished by death , as appears Leviticus the Twentieth . This was enough to cause a particular detestation and abhorrency in the Jews , of such who accustomed themselves to such marriages , or any of them , above others , of the Gentiles .

3. The Nations cast out of their Land for committing those things , Deut. 7. v. 1. appear to be Seven ; The Hittite , the Girgashite , the Amorite , the Canaanite , the Perizzite , the Hivite , and the Jebusite , whose names they were commanded to destroy from under Heaven , Verse the Four and twentieth of that Chapter ; accordingly it appears they did so . Deuteronomy the Second and Third Chapters , The Amorite , and those under Og , King of Bashan , were , Man , Woman , and Child , destroyed .

Chapter the Seventh , Verse second and third , no Covenant was to be made with , nor marriage between them .

Of the Cities of these people which the Lord thy God giveth thee for an inheritance , Deut. 20. Thou shalt save alive nothing that breatheth , but thou shalt utterly destroy them , which shews their destruction was not for transgressing a Law given them by God , as their Law maker , for they were destroy'd which had not offended against the Law , as well as they which had . But it was an Act of Gods absolute dominion over his Creatures , as the Potter may do what he listeth with his Clay , which must not say why hast thou made me thus .

Whereas they had differing commands concerning Cities far from them ; As , 1. To offer them peace ; 2. If they accepted it , to make them Tributaries ; 3. If they refused it , to kill the Males with the Sword , but to spare the women and children , Deut. 20. from verse 10. to vers. the Fifteenth .

It is hence not improbable the Jews had great aversness to the Communion of such , whose mixtures in marriage were alike to these Nations , though they were not of these Nations ; for the vengeance ordained against them appears not to be for other causes ( than for those incestuous Copulations ) which were not common to all other the Nations of the Gentiles , as well as to them , that is Idolatry : And for this reason

The Apostles might direct the Gentiles to abstain from marriages that would render them odious to the Jews , and which the Christians ever after continued as most conformant to Gods will in the fitness of marriage .

But this is not reason enough to make all these marriages to be prohibited to the Gentiles absolutely by Divine Institution , as unholy in themselves , without relation to the communion with the Jews , so as to make it absolutely unlawful to change them by any Humane Law upon any occasion . But it is never prudent to change a Law which cannot be better'd in the subject matter of the Law .

Accordingly if we examine well , perhaps dispensations will be found given by the Christian Churches for marriages , within most of those Mosaical Degrees , and particularly in those marriages instanc'd in which were lawful before the Law of Moses , and which have not a moral inconsistency with them , and so a natural iniquity , and which therefore are prohibited among all civilized Nations , whether ancient or modern , as well as among the Jews , for the most part .

Selden de Jure Gentium . In some places some particular examples may be to the contrary , for special reasons of Revelation or Prophecy believ'd , as the Mother to marry the Son .

Accordingly it is affirmed by the Statutes of 28 H. 8. c. 7. & 25 H. 8. c. 22. That the marriages enumerated in both those Acts to be prohibited by Gods Law , were notwithstanding allow'd by colour of Dispensations by mans power . The words of the Statute of 28. are , after the recital of the prohibited marriages , All which marriages , albeit they be plainly prohibited and detested by the Laws of God , yet nevertheless , at some times , they have proceeded under colours of Dispensations by mans power , which is but usurped , and of right ought not to be granted , admitted , nor allow'd .

The same words are in the Statute of 25. but instead of , All which marriages , the words are , Which marriages , &c.

The second Question , What are the Levitical Degrees , I omit , because the marriage in question is in no sort in the Degrees .

Observation . And by the way it is very observable , That as we take the Degrees of Marriage , prohibited by Gods Law , to be the Levitical Degrees expressed , or necessarily implyed in the Eighteenth of Leviticus , upon parity of reason , or by Argument , à fortiori .

So there are some in Leviticus , which by the Act of 28 H. 8. cap. 7. and otherwise in our enumeration of the Levitical Degrees , we admit as absolutely prohibited , which in the Levitical Law , and in the meaning of the Eighteenth of Leviticus , were not absolutely , but circumstantially prohibited ; that is ,

1. The marriage of a man with his Brothers wife , which by 28 H. 8. cap. 7. is absolutely prohibited , and commonly receiv'd to be absolutely prohibited by the Levitical Degrees .

But was not so by the Levitical Law , nor by the meaning of the Eighteenth Chapter of Leviticus , but when the dead brother left Issue by his wife .

But if he did not , the surviving Brother was , by the Law , to marry his wife , and raise Issue to his Brother .

This Law was so known , that by all the Evangelists , a Woman , who had Seven Brothers successively , our Saviour was asked , Whose Wife she should be at the Resurrection ?

2. The second of this kind is , A man is prohibited by 28 H. 8. and by the receiv'd Interpretation of the Levitical Degrees , absolutely to marry his Wives sister : but within the meaning of Leviticus , and the constant practise of the Common-wealth of the Jews , a man was prohibited not to marry his Wives Sister only during her life , after he might . So the Text is .

Thou shalt not take a Wife with her Sister , during her life , to vex her , by uncovering her shame upon her .

This perhaps is a knot not easily untied , how the Levitical Degrees are Gods Law in this Kingdome , but not as they were in the Common-wealth of Israel , where first given .

Third Question .

The third Question , and chiefly concerning the Case in question , is , Whether Harrison's marriage with his great Vncles ( that is , his Grand-fathers Brothers wife ) be a marriage by good and sound deduction of Consequence within the Levitical Degrees not particularly expressed ? For , I think it evident , it is not among those that are express'd , neither in the Greek nor Latin Translations , nor in the British names of Kindred , where my Fathers Cosen German hath the appellation of my Uncle ; nor holpen by the gloss of being prohibited in the Twentieth of Leviticus , though not in the Eighteenth .

1. The word Uncle is an equivocal expression , and in several places signifies several Relations ; as in the British , the Father or Grand-fathers Cosen German is accounted an Uncle to the Son .

2. The Fathers Brother hath in Latin a specifique term of Relation to the Son or Daughter , viz. Patruus . But the Stat. of 28 H. 8. c. 7. recites this prohibition to be , To marry his Uncles Wife . So hath the Mothers brother , Avunculus ; but in the Greek it hath not , and is express'd only by the word Kinsman .

3. In Junius and Tremellius's Translation , done with regard to the Septuagint and the Original , the Twentieth of Leviticus , verse the twentieth , is rendred Quisquis cubaverit cum Amita sua nuditatem patrui sui retexit , where expresly , instead of , and uncovered his Uncles shame , it is uncover'd his Uncle , his Fathers Brothers shame , which makes it the same with the Eighteenth of Leviticus , verse the fourteenth .

I shall therefore first agree , That marriage with the Grand-mother , Great-grand-mother , and with the Great-grand-father , and so upwards , without limit ; is , though not expressed , equally prohibited in Leviticus , as marriage with the Father , Mother , or Grand-father , to the Son or Daughter : So as in the right Ascending Line of Generation there can be no lawful marriage .

1. The Father and Mother are the immediate natural Causes of the being of their Children , and the Grand-father and Grand-mother are natural mediate causes of their being , and so upwards , in the right ascending Line interminately ; for a man could no more be what he is , without his Grand-father and Grand-mother , and so upwards , than without his Father or Mother : Therefore they are really Parents , and necessary mediate causes of bringing the Children to have being , and consequently what is due of reverence or acknowledgment for his being , from the Child to Father or Mother , is likewise due to those other Relations in the Ascending right Line .

But the Uncle , quatenus Vncle , &c. doth no more contribute to the natural being of the Nephew or Neece , than as if he had not at all been .

The marriage of the Son or Daughter with Grand-mother or Grand-father , and so with any Ancestor , Male or Female , in the right Ascending Line , is , after Laws determining the knowledge and reverence due to Parents , unnatural and repugnant in it self .

For there is unnaturalness in Civil things , when constituted , sometimes ;

Though there be no Master or Servant originally in nature , but only parity , yet after Laws have constituted those Relations ,

A. cannot at the same time be both Master and Servant to B. there is a repugnancy in the nature of those two Offices , to be consistent in the same persons at once .

A Father or Mother cannot be Servant to their Son or Daughter ; for under the relation of Father or Mother , the Son is to obey them , but in that of Servant , they to obey him , which is repugnant , and against the nature of those Relations .

Vnder the Law it was not forbidden a man to Curse his Servant , but Death to Curse his Father or Mother . A man might correct and chastise his Servant qua such , but penal alike to chastise his Father or Mother in this sense .

The marriage of the Son with his Mother , or the Daughter with her Father , are unnatural .

For as a Husband to her , the Son is both to command and correct the Mother as his wife , but as a Son , to be commanded , and endure her Correction as Mother .

So between the Father and Daughter , there is a Reverence from the Daughter to the Father , inconsistent with the parity between man and wife ; and Laws give often a power over the daughter , which they forbid over the wife .

And the reverence and obedience from the Grand-child to the Grand-mother , in what degree soever , is the same as to the Mother , and the same consequences follow .

For if the Mother or Father have power absolute , or in tantum , over the Son or Daughter , to create reverence to them ; the same hath the Grand-mother , or Grand-father , and so forwards .

For if B. the Father have absolute or qualified power over A. the Son , and C. the Grand-father hath the same over B. the Father , then hath C. the Grand-father the same over A. the Son , not immediately but mediately by the Father .

To this purpose the Case put in Platt's Case in the Com. is most opposite . A woman Guardian of the Fleet marries her Prisoner in Execution , he is immediately out of Execution , for the Husband cannot be Prisoner to his Wife , it being repugnant , that she , as Jaylor , should have the Custody of him , and he , as Husband , the Custody of her .

To this purpose also , it is remarkable what that great Scholar and Lawyer , Hugo Grotius hath ; Eximo ab hac generalitate matrimonium parentum cujuscunque gradus cum liberis quae quo minus licita sint ratio , ni fallor , satis apparet . Grot. de Jure belli , l. 2. c. 5 : Paragr. 12. Nam nec maritus qui superior est lege matrimonii eam reverentiam praestare potest matri quam natura exigit , nec patri filia , quia quanquam inferior est in matrimonio ; ipsum tamen matrimonium talem inducit societatem , quae illius necessitudinis reverentiam excludat .

But as to other Relations , the same Author , in the same place ,

De Conjugiis eorum qui sanguine aut affinitate junguntur satis gravis est quaestio , & non raro magnis motibus agitata ; nam causas certas , ac naturales cur talia conjugia , ita ut legibus aut moribus vetantur illicita sint assignare qui voluerit , experiendo discet quam id sit difficile , imo praestari non possit .

I add only , That as the mutual duties of Parents and Children consist not with their marrying one another ; so the Procreations between them will have a necessary and monstrous inconsistence of Relation .

For the Son or Daughter , born of the Mother , and begot by the Son , as born of the mother , will be a Brother or Sister to the Father , but as begot by him , will be a Son or Daughter .

So the Issue procreate upon the Grand-mother , as born of the Grand-mother , will be Uncles or Aunts to the Father , as begot by the Son , they will be Sons or Daughters to him , and this in the first degrees of Kindred .

Besides , by the Laws of England Children inherit their Ancestors without limit in the right ascending Line , and are not inherited by them . But in the Collateral Lines of Uncle and Nephew , the Uncle as well inherits the Nephew , as the Nephew the Uncle .

In the Civil Law the Agnati , viz. the Father , or Grand-fathers Brother , are loco parentum ; and the Canons borrow it thence , but that is because they were Legitimi Tutores , or Guardians by Law to their Nephews ; with us the Lord , of whom the Land is held , is Guardian , or the next of Kin to whom the Land cannot descend , and by the same reason they should be loco parentum .

In a Synod or Convocation holden in London , in the year 1603. of the Province of Canterbury , by the Kings Writ , and with Licence under the Great Seal to consent and agree of such Canons and Constitutions Ecclesiastick as they should think fit .

Several Canons were concluded , and after ratified under the Great Seal , as they ought to be ; among which the Ninety ninth Canon is this :

No person shall marry within the Degrees prohibited by Gods Law , and expressed in a Table set forth by Authority , Canons 1 Jac. 1603. Can. 99. in the year of our Lord , 1563. and all marriages so made and contracted , shall be adjudg'd incestuous and unlawful : And the aforesaid Table shall be in every Church publickly set up and fixed , at the charge of the Parish .

This Table was first publisht in Arch-bishop Parker's time , in 1563. I know not by what Authority then , and after made a Canon of this Convocation , with the Kings Licence under the Great Seal , and so confirm'd , and since continually set up in Parishes .

By which expresly the Degrees by Gods Law prohibited , are said to be expressed in that Table , and is the same as . No person shall marry within the Degrees prohibited by Gods Law , and which are expressed in the Table . Any other Exposition of the Canon will be forc'd and violent , and the Table set up for the Peoples direction from Incest , but a snare and a deceit to them .

And this marriage is not prohibited in that Table .

There is an Objection , That by the Canon and Civil Law this Degree of Marriage in question is prohibited .

It is true ; but by the Statute of 32 H. 8. c. 38. All Prohibitions by the Canon or Civil Law , quatenus Canon or Civil Law , are wholly excluded , and unless the marriage be prohibited by the Divine Law , it is made lawful .

But suppose the Canon or Civil Law were to be taken as a measure in the subject of marriage of what were lawful .

With the Canon Law , of what time would you begin , for it varies as the Laws Civil of any Nation do , in successive Ages . Before the Council of Lateran , it was another Law than since , for marriages before were forbid to the Seventh Degree from Cosen Germans inclusively , since to the Fourth .

Every Council varied somewhat in the Canon Law , and every Pope from the former , and often from himself , as every new Act of Parliament varies the Law of England , more or less ; and that which always changeth can be no measure of Rectitude , unless confin'd to what was the Law in a certain time , and then no reason will make that a better measure than what was the Law in a certain other time : As the Law of England is not a righter Law of England in one Kings Reign , than in another , yet much differing .

Nerva forbad it ; Heraclius permitted it . Grot. Annot. 167. So doth the Civil Law , before the marriage of Claudius the Emperour with Agrippina his Brothers daughter , the marriage of the Uncle with his Neece , was not allowed among the Romans . But by a Law of the People and Senate upon that Occasion , such marriages were permitted . Many others of the like kind .

Nor did the Canon Law , and perhaps truly , take more persons to be prohibited within the Levitical Degrees , than are there expressed : What else is the meaning of that place in Levitico vero prohibitae fuerunt fere duodecim personae , &c. in the Exposition of the Arbor Consanguinitatis & Affinitatis .

Reformatio Legum Ecclesiasticarum ex Authoritate primum Regis Henrici 8. inchoata , deinde per Regem Edwardum 6. provecta , de gradibus in Matrimonio prohibitis .

Deus in his gradibus certum jus posuit Levitici 18. & 20 Capite , quo Jure nos , & omnem posteritatem nostram teneri necesse est . Nec enim illorum capitum praecepta veteris Israelitarum Reipub. propria fuerunt , ut quidem somniant , sed idem authoritatis pondus habent quod Religio nostra Decalogo tribuit , ut nulla possit humana potestas quicquam in illis , ullo modo constituere .

Hoc tamen in illis Levitici capitibus diligenter animadvertendum est , minime ibi omnes non legitimas personas nominatim explicari , nam Spiritus Sanctus illas ibi personas evidenter , & expresse posuit ex quibus similia spatia reliquorum graduum , & differentiae inter se facile posuit conjectari & inveniri . Exempli causa , cum filio non datur uxor mater , Consequens est , ut ne filia quidem patri conjux dari potest , & si patrui non licet uxorem in matrimonio habere , nec cum Avunculi conjuge nobis nuptiae concedi possunt .

Admitting this marriage out of the Levitical Degrees , whether it be so pleaded as that we ought to deny a Consultation .

Faults in the Pleading .

The Plaintiff sets forth the Act of 32. and particularly , That all Marriages are thereby lawful , contracted between lawful persons , and that all persons are lawful , not prohibited by Gods Law to marry . Then he sets forth another Clause , That no marriage shall be impeach't ( Gods Law excepted ) made out of the Levitical Degrees .

Then sets forth his marriage with his Wife , being formerly married to Bartholomew Abbot , his Grand-fathers brother ( and consequently his great Vncle ) there being no pre-contract of either side which was lawful , Secundum Jura Divina , & Humana .

And that he was libell'd for his marriage in the Spiritual Court , as incestuous and unlawful , and sets forth the Articles of the Libel in particular , and the prosecution for a Divorce .

But doth not averr , That the marriage is without the Levitical Degrees , as he should have done .

Vpon which Declaration , the Defendant demurrs , and prays a Consultation .

Whereas , In such case the Defendant must have shew'd how it was against Gods Law , according to Speccotts C. 5. Rep. if the Plaintiff had aver'd the marriage to be without the Levitical Degrees , the Defendant must either have demurr'd upon that single point , or have been forc'd to have confess'd that it was out of the Levitical Degrees , but was notwithstanding against Gods Law , upon the words of the Act , No marriage shall be impeach'd , Gods Law excepted , that is , without the Levitical Degrees .

So as by his manner of Pleading , the Court is now to Iudge , not whether the marriage be without the Levitical Degrees , but whether it be against Gods Law in general . The Defendant hath not articled , That Abbot knew the wife carnally ; and then it is not a marriage against Gods Law by 28 H. 8. cap. 7. nor that it is within the Levitical Degrees .

And upon this manner of Pleading , after a Prohibition granted , a Consultation was awarded in Mann's Case .

Mann had married his first wives sisters daughter , Cr. 33 El. 228. Manns Case . and was sued before the High Commissioners ; for although this was not prohibited within the Levitical Degrees , yet because degrees more remote are forbidden , they gave sentence of Divorce . And he grounded his Prohibition upon the Statute of 32 H. 8. c. 38. And a Consultation was prayed and granted , because the Prohibition is not to be , if it be not without the Levitical Degrees , and here it was general , and therefore not good .

Mann's Case . Moore f. 907. a. The same Case is in Moore , who Reports the Grant of a Prohibition in the Case , but mentions not the Consultation which was moved for long after the Prohibition ; and therefore alters nothing of Crook's Report . But the Record of this Case cannot be found .

Cok. Litt. f. 235. a. There is another Case of one Richard Pearson , not Parsons , wherein a Prohibition was granted out of this Court in the like case as Manns , for marrying his wives sisters daughter , in Trinity Term 2 Jac. Rot. 1032.

Sir Edward Coke saith , he was drawn into question in the Ecclesiastical Court for the Marriage , alledging the same to be against the Canons .

And that it was resolved by the Court of Common Pleas , upon Consideration of the Statute of 32 H. 8. cap. 38. that the Marriage was not to be impeach'd , because declared by the said Act to be good , in as much as it was not prohibited by the Levitical Degrees . This Case is again remembred by Sir Edward Coke in his Comment upon this Statute of 32 H. 8. in the latter Editions of his Littleton it is not printed , but it seems omitted , not by his consent , because he remembers it in his Magna Charta upon that Statute , long after printed .

But I find there was a Consultation granted in Hillary Term after the Prohibition granted , but find no appearance or Plea of the Defendant .

But by the Record of that Case , the Plaintiff declares , Qui quidem Richardus & Anna fuerunt , & sunt legales personae insimul maritari per legem Dei minime prohibitae ac extra leges Leviticales .

Quidam tamen machinans matrimonium praedictum secundum legem Dei & Hominum legitime celebratum dissolvere , Praetendens matrimonium illud fore incestuosum eosdem Henricum & Annam , &c. in placitum trahi procuravit .

Then sets forth the Articles of the Libel , whereof 1. is ,

Item quod praemissorum ratione praefat. Anna fuit ac est Affinis tui praefati Richardi , & in gradu de Jure prohibito pro aliquo matrimonio inter te , & eandem contrahendo aut habendo notorie constituta , videlicet filia naturalis , & legitima de Johanne Gardiner , alias Lucas , sorore dictae Janae Gardiner , alias Pearson , uxore tua praedictâ .

Nor is it material that he saith after , Ac licet praedict. Richardus & Anna Matrimonium praedictum fore legitimum , & per leges Leviticales minime prohibitum , & per Stat. praedict. fore bonum coram praefato Judice placitaverunt & allegaverunt , & illa inevitabili veritate probari , praedictus tamen Judex placitum illud , & allegationem admittere penitus recusavit .

For that is not an Averment , That the Marriage was out of the Levitical Degrees to the Temporal Judges ; for they can take no Issue , nor try what Plea was before the Spiritual Judge .

Then upon this pleading , it no way appears that the Libel was for marrying against the Law of God ; and if it were not , then the Spiritual Gourt had no Conizance , though it were against the Canons which the Act of 32. had excluded .

Therefore the Prohibition might well be awarded , especially because the Libel was , That the marriage was Incestuous .

Next , a Consultation might be granted , unless cause were shew'd , for it was no otherwise . Because the Suggestion was not , That the marriage was out of the Levitical Degrees , but that the persons married were extra leges Leviticales , which was as if they had said , They were not under the Jewish Common-wealth .

And then a Consultation might be granted upon this Prohibition , as upon that of Mann's Case , because the Plaintiff did not averr the marriage to be extra gradus Leviticus , and ground his Prohibition thereupon .

As those two Prohibitions were for marrying the Wives Sisters daughter , that is , the Wives Neece by the Sister . So there is a Case in the Lord Hobbard , Hobbard f. 181. a. Keppington . where one Keppington married his Wives Sisters daughter , was questioned for Incest by the High Commissioners , and sentenced , and entred into Bond to abstain from her Company , but was not divorced , and therefore the Wife recover'd a Wives Widows Estate in a Copy-hold , notwithstanding the Sentence ; but no Prohibition was in the Case .

The same Case is in the Reports which pass for Mr. Noye's , f. 29. but mistaken , for there in place of his Wives sister , it is Fathers sister .

Hill. 21. Car. II. This Case was , by the King's Command , adjourn'd for the Opinion of all the Judges of England , Trin. 22. Car. II. The Chief Justice delivered their Opinions , and accordingly Judgment was given , That a Prohibition ought to go to the Spiritual Court for the Plaintiff .

Mich. 20 Car. II. C. B. Sir Henry North Plaintiff , William Coe Defendant .

SIR Henry North hath brought an Action of Trespass , Quare clausum fregit , against William Coe , in a Close upon the new Assignment , called Westrow-hills , containing Fifty Acres , a Close called the Heyland , containing One hundred Acres , and another called the Delf and Brink , containing One hundred and fifty Acres in Milden-hall .

The Defendant pleads , That the said places are part of the Mannor of Milden-hall , whereof the Plaintiff was seis'd , tempore transgressionis suppositae , and that he was then , and yet is seis'd of an ancient Messuage , with the Appurtenances in Milden-hall , being one of the free Tenements of the said Mannor , and held of the said Mannor , by Rents and other Services , in his demesne as of Fee .

That there are divers freehold Tenements , time out of mind , in the said Mannor , held by several Rents and Services , parcel of the said Mannor , and that there were , and are , infra candem Villam , divers customary Tenements , parcel of the said Mannor , grantable Ad voluntatem Domini , by Copy .

That all the Tenants of the free Tenements , time out of mind , habuerunt , & usi fuerunt , and all the Tenants of the Customary Tenements , Per consuetudinem ejusdem Manerii in eodem Manerio , à toto tempore supradict. usitat . & approbat . habuerunt & habere consueverunt solam & separalem Pasturam praedict. Clausi vocat . Westrow-hills , cum pertinen . for all their Cattel ( Hogs , Sheep , and Northern Steers except ) levant and couchant upon their respective Messuages and Tenements every year , for all times of the year , except from the Feast of St. Edmond to the Five and twentieth of March next following , as belonging and pertaining to their several Tenements .

And likewise had , and used to have , solam & separalem Pasturam praedict. Clausi vocat . Westrow-hills , from the Feast of St. Edmund every year , to the Five and twentieth of March , for feeding of all their Cattel ( Hogs , Sheep , and Northern Steers except ) levant and couchant , &c. Excepted that the Tenants of the Demesne of the Mannor every year , from the said Feast to the Five and twentieth of March , by custome of the said Mannor depastured their Sheep there .

That at the time of the Trespass , the Defendant put in his own Cattel , levant and couchant , upon his said Messuage , Prout ei bene licuit , and averreth not that none of his said Cattel were , Porci , Oves , or Juvenci , called Northern Steers , but Petit Judicium .

The like Plea he makes for the Closes called the Haylands Delf and Brink , but that the free Tenants , as before , and customary Tenants , had solam & separalem Pasturam pro omnibus averiis ( Porcis , Ovibus , & Juvencis , called Northern Steers , excepted ) for all times of the year .

And that he put in Averia sua , levantia & cubantia , super tenementum praedictum prout ei bene licuit , & Petit Judicium .

Cum hoc quod verificare vult quod nullus bovium praedict. ipsius Willielmi suerunt Juvenci , vocat . Northern Steers .

Whereas no mention is of putting in Oxen , but Averia sua in general , and no averment that no Sheep were put in .

The Plaintiff demurs upon this Plea .

Exceptions to the Pleading .

The Defendant saith he was seis'd de uno antiquo Messuagio , being one of the freehold Tenements of the said Mannor , and that there are divers freehold Tenements within the said Mannor , and that omnes Tenentes of the said Tenements , have had solam & separalem pasturam for all their Cattel , levant and couchant , except Porcis , Ovibus , and Juvencis , called Northern Steers , in the place called Westrow-hills , and that he put his Cattel , levant and couchant , prout ei bene licuit .

1. That he was seis'd , de uno antiquo Messuagio , and of no Land , is not proper ; for Cattel cannot be levant in common intention , upon a Messuage only .

2. He saith he put in his Cattel levant and couchant , but avers not as he ought , That none of them were Porci , Oves , or Northern Steers ; for Porci there is a Rule of Court .

3. He pleads in like manner as to the Hayland Delf and Brink , That he put in his Cattel , and avers that non Bovium praedict . were Northern Steers ; when as there is no mention of putting in Oxen , but Averia generally , and no averment that there were no Sheep .

4. The Plea doth not set forth the Custome of the Mannor , but implicity that the Free-hold and customary Tenants have had and enjoy'd per consuetudinem Manerii solam & separalem pasturam for all their Cattel , which is a double Plea , both of the custome of the Mannor , and of the claim by reason of the custome , which ought to be several , and the Court should judge and not the Jury , whether the claim be according to the custome alledg'd .

The custome may be different from the claim per consuetudinem Manerii , if particularly alledg'd .

Lastly , the matter in difference is not before the Court formally by this way of pleading ; for the matter in question must be , Whether the Lord of the Mannor be excluded from pasturing with the Tenants in the place in question , or from approving the Common ? If the Defendant had distrained Damage feasant , and the Plaintiff brought his Action , and the Defendant avow'd propter solam & separalem pasturam , the Lords right to depasture had come properly in question , and by natural pleading .

Or if the Lord , upon the Tenants plea , had taken no notice of sola & separalis pastura , but had confessed that the Land was a Common , and that he had approv'd the places in question , leaving sufficient Pasture for the Tenants , if then the Tenant had demurr'd upon his Plea of Sola & separalis pastura , the right of approving had properly come in question .

A man hath no right to any thing for which the Law gives no remedy .

This must be a Common or Nothing .

1. If disseis'd , the Assise is Quare disseisivit eum de Communia pasturae suae .

If surcharg'd , an Admensuratio pasturae is Quare Superoneravit Communiam pasturam suam .

22 Ass. p. 48. Cok. Litt. 4. b. Trespass lies not for a Common , but doth for Sola & separalis pastura granted to one or more jointly ; But not here , where all cannot joyn in Action , and several Actions would cause several Fines to the King for the same offence , which the Law permits not .

He cannot avow but for Damage done to his Common , not for his Sola & separalis pastura .

2. No Common or Pasture can be claimed by Custome within the Mannor , that may not be prescribed for out of the Mannor , for what one might grant another might . Foyston & Cratchrod's Case , 4. Rep. f. 31. But no Prescription can be for Sola & separalis pastura out of the Mannor to such Common . Therefore they shall not claim it by Custome in the Mannor .

For Copy-holders must prescribe out of the Mannor that the Lord for himself , and his Tenants at will , hath always had Common in such a place , which Prescription gives the Lord what this Custome would take from him .

3. No man enjoys a Real profit , convey'd from the Lord , which he cannot re-transfer again to the Lords benefit ; but a Commoner of such a Common cannot Release , Surrender , Extinguish , or otherwise Convey this Common to the Lords benefit .

Smith & Gatewoods Case . 3 Jac. Cr. f. 152 6. Rep. f. 59. 15 E. 2. Title Prescript . pl. 51. Which is the reason in Gatewood's Case , That Inhabitants not corporate cannot prescribe in a Common ; none of them can extinguish or release that Common he claims .

A man prescribed in the sole Pasture , after carrying of the Hay , to a certain time of the year .

So tempore E. 1. a Prescription for all the Pasture , and the Owner of the Soyl could only plough , Fitz. pl. 55. super . sow , and carry his Corn , but not depasture the Grass at all .

But no Case , where different persons had by different Title , as here , in the same ground , Solam & separalem pasturam .

Nor no Case where Sola & separalis pastura is granted to a man and his Heirs ; which seems the same as granting omne proficuum terrae : For where it is alledged there may be Mines , Woods , and the like , notwithstanding the Grant of Solam & separalem pasturam , these are casual , and not constant profits ; they may be , or not be at all .

When a man brings an Action , as an Entry sur Disseisin , or the like , where he must alledge Esplees , the profit of a Mine will not serve , but for the Mine it self , which may be a divided Inheritance from the Soyl.

So may Woodland be a divided Inheritance from the Soyl , and the profit or cutting of that is not Esplees of the Land generally , but of the Woodland , but the profits of all and every part , are the Esplees of the Land , and proves seisin of the whole Land , which are in the form of pleading the Corn , Grass , and Hay , which are profits pour moy & pour tout , and where Sola & separalis pastura is granted generally away , Seisin cannot be alledg'd in taking any of these .

It is agreed generally for Law , Cok. Litt. f. 122. a. That a Prescription to have Solam & separalem Communiam incertain Land , doth not exclude the Owner of the Soyl to have Pasture or Estovers .

But by that Book a man may prescribe to have Solam vesturam terrae from a certain day , to a certain day in the year , and so to have Solam pasturam terrae . And so are the Books of 15 E. 2. pl. 51. and of E. 1. pl. 55. in Fitz-herbert , Title Prescription , but they go no further , nor determine what Estate he hath who claims Solam & separalem pasturam to him and his Heirs , excluding the Lord wholly from any Pasture , Hay , or Corn.

In granting or prescribing to have Solam & separalem Communiam , why the Lord is not excluded , is not clear by that Book , or any other . For ,

There are two notions or senses of the word Communia , the one , as it signifies that Interest in the Common which one Commoner hath against another , not to have the Common surcharg'd . And is that Interest , Fitz. Na. Br. de Admensuratione pasturae , f. 125. a. to which the Writ De Admensuratione pasturae relates , which only lies for Commoner against Commoner , and not for a Commoner against the Lord , or for the Lord against a Commoner , as is clear by Fitz-herbert .

And in this sense there may be Sola & separalis Communia , for only one may have right of Common , and no more , either by Grant or Prescription . So in this sense one part of the Tenants of a Mannor may have the sole right of Commoning in a certain place , excluding the other part of the Tenants , Foyston's C. 4. Rep. and may claim there Solam & separalem Communiam à caeteris Tenentibus Manerii .

The other notion of Communia is , when one or more hath right to Pasture with the Owner of the Soyl ; and in this sense it is impossible for a man to have solam & separalem Communiam , for one cannot have that alone which is to be had with another , nor do that alone which is to be done with another .

So as a man may have Solam & separalem Communiam in that sense , that none is to be a Commoner but himself , but not in that sense that none else should depasture the Land but he ; for Communia cannot signifie an absolute several .

As 't is a Contradiction , that a Common , which is to more than one , can be a several , and belong but to one .

So it is an equal Contradiction , That what in its nature is to be the right of one only , can be Common , and the right of more than one .

Others cannot have what is only to be had by me , more than I can have only what is to be had by others with me .

Therefore Sola & separalis Pastura may be enjoyed by one , or by many jointly , and by way of Survivor , but not by many by different Titles , as belonging to several Free-holds , for Sola & separalis pastura can be , but Soli & separatim .

Na. Br. f. 231. a. l. c. 8 E. 4. f. 17. Br. grants . pl. 95. If the King had a Corody from an Abby of two or three loaves of Bread per diem , and of so many measures of Drink , this might be granted to two or three several persons . But if he had a Corody of one Meal a day , or Sustentationem unius Valecti per diem , this could not be granted but to one , because its nature was confin'd to one .

A man cannot have an Assise of Common in his own Soyl , nor an Admensuratio pasturae , and a Common being a thing that lies in grant , he cannot grant it to himself , and no other can grant it in his Soyl to him .

So as I conclude , one or more may have Solam & separalem Communiam from other Commoners , but not from the Lord , who is no Commoner .

I cannot discern the use of this kind of Prescription for the Tenants ; for if it be to hinder the Lord from approving the Common , I think they are mistaken .

The Statute of Merton gives the Owner of the Soyl power to approve Common Grounds appendant , Cok. 2. Instit. f. 86.475 . West . 2. c. 46. or appurtenant , by Prescription , as this is , if sufficient Pasture be left for the Commoners , without considering whether the Commoners had the Common solely to themselves , excluding the Lord , or otherwise . For as to Approvement ( which the Statute provided for ) the Lord was equally , bound pasturing with his Tenants , or not pasturing with them . Therefore the Statute consider'd not that , but that the Lord should approve his own ground , so the Commoners had sufficient , whatever the nature of the Common were .

To prescribe to have in such a part of the Lord's Lands Communiam for their Cattel , excludes not the Lord .

To prescribe to have their Pasturam Communem for their Cattel , is the same thing , and excludes not the Lord .

To prescribe to have solam & separalem Communiam , is naught by Admittance .

Why then to prescribe to have solam & separalem Pasturam Communiam , which is agreed to be the same with Communiam , is naught also .

Now , to express another way that they have solam & separalem Pasturam Common to them , or wherein they Common , changeth not the matter in the meaning , but order of the words .

The Statute of Merton is , cap. 4.

1. The Lords could not make their profit de Vastis , Boscis , & Pasturis Communibus , when the Tenants had sufficientem pasturam quantum pertinet ad tenementa sua .

2. Si coram Justiciariis recognitum sit quod tantum pasturae habeant quantum sufficit , &c.

3. Et quod habeant liberum ingressum & egressum de tenementis suis , usque ad pasturam suam , tunc recedant quiet .

4. And that then the Lords faciant commodum suum de terris vastis & pasturis .

5. Et si per Assisam recognitum fuerit quod non habent sufficientem pasturam .

6. Tunc recuperent Seisinam suam per visum Juratorum , ita quod per Sacramentum eorum habeant sufficientem pasturam .

7. Quod si Recognitum sit quod habeant sufficientem pasturam , &c.

Communibus pasturis is once named , Pastura sua for Communia sua , seven times ; and the word Communia not named in this Act , but where it mentions .

8. The Writ of Novel disseisin de Communia pasturae suae , which makes eight times .

1. The granting solam & separalem Pasturam of or in Black-acre , may signifie an exclusion only of having Pasture in White-acre , or any other place than Black-acre .

2. The granting solam & separalem pasturam of or in Black-acre , may signifie the exclusion of any other person to have Pasture in Black-acre , but the Grantee , in which sense the word Solam signifies as much as totam pasturam .

3. If the Grant be of all the Pasture , the Grantor reserves nothing to himself of that which he grants , but all passes into the Grantee ; but if the Grantor restrains the Grant , after general words of granting all the Pasture , the Restriction is for the benefit of the Grantor .

Therefore when the Grant is of Solam & separalem pasturam of or in Black-acre , all the Pasture is supposed to pass , without restriction , to the Grantee ; but if words follow in the Grant , pro duabus vaccis tantum , or pro averiis levantibus & cubantibus super certum tenementum , that is a restriction for the benefit of the Grantor ; for a man cannot in the same Grant restrain for his own benefit the largeness of his Grant , and yet have no benefit of his restriction .

The Court was divided ; The Chief Justice , and Justice Tyrrell for the Plaintiff . Justice Archer and Justice Wylde for the Defendant .

Hill. 20 & 21 Car. II. C. B. Rot. 1552. Adjud'gd 23 Car. II. C. B. Gardner vers . Sheldon . In Ejectione Firmae for Lands in Sussex . Vpon not Guilty pleaded ,

IT is found by the Special Verdict , that long before the supposed Trespass and Ejectment ,

One William Rose was seis'd of the Land in question in his Demesne , as of Fee , and so seis'd , made his last Will and Testament , November the Second , 13 Jac. prout sequitur , and sets forth the Will ; wherein among other things ,

As touching the Lease which I have in my Farm , called Easter-gate , and all my Interest therein , I do give and assign the said Lease , and all my Interest therein , unto my Friends John Clerk , George Littlebury , and Edward Rose , to the intent that , with the Rents and Profits thereof , they may help to pay my Debts , if my other Goods and Chattels shall not suffice . And after my Debts paid , my will is that the Rents and Profits of the said Land shall wholly go for and towards the raising of Portions for my two Daughters , Mary and Katherine , for each of them Six hundred pounds , and for my Daughter Mary Two hundred pounds more , which was given her by my Father , her Grand-fathers Will . And those Sums being raised , my will is the Rents and Profits of the said Land shall be wholly to the use and benefit of my Son George , &c.

Item , I give to my daughter Mary my greatest Silver Bowl .

Item , I give to my daughter Katherine one plain Silver Bowl , &c.

My will and meaning is , That if it happen that my Son George , Mary and Katherine my daughters , to die without Issue of their Bodies lawfully begotten , then all my Free-lands , which I am now seis'd of , shall come , remain , and be to my said Nephew William Rose , and his Heirs for ever .

They find that the said William Rose , the Testator , before the Trespass , viz. the First of June , 14 Jac. died at Easter-gate , in the said County of Sussex , seis'd as aforesaid .

That at the time of his death , he had Issue of his body lawfully begotten , George Rose his only Son , and Mary and Katherine his two Daughters .

That George , the Son , entred into the Premisses the First of July , 14 Jac. and was seis'd prout Lex postulat .

Then after , and before the time of the Trespass , viz. June the Eight and twentieth , 14 Car. 2. George died so seis'd of the Premisses at Easter-gate aforesaid .

That at the time of his death he had Issue of his body two Daughters , Judith now wife of Daniel Sheldon , one of the Defendants , and Margaret now wife of Sir Joseph Sheldon , the other Defendant .

That after the death of George their Father , the said Judith and Margaret entred , and were seis'd before the Trespass suppos'd , prout Lex postulat .

That Mary , one of the daughters of the said William Rose , July the First , 1 Car. 2. died , and that Katherine her Sister surviv'd her , and is still living .

That the said Katherine , October the First , 20 Car. 2. at East-Grimsted , entred into the said Tenements , and was seis'd prout Lex postulat , and the same day and year demis'd the same to the said Thomas Gardner , the Plaintiff , from the Feast of St. Michael the Arch-angel then last past , for the term of Five years then next following ; By virtue whereof the said Thomas Gardner entred , and was possessed , until the said Joseph and Daniel Sheldon , the same First day of October , 20 Car. 2. entred upon him and Ejected him .

If upon the whole matter the Justices shall think the said Joseph and Daniel Sheldon culpable ; they find them culpable , and assess Damages to Six pence , and Costs to Twenty shillings . But if the Justices shall conceive them not culpable , they find them not culpable upon the words , My will is , if it happen my Son George , Mary and Katherine my Daughters , do dye without Issue of their Bodies lawfully begotten , then all my Free Lands , which I am now seised of , shall come , remain , and be to my said Nephew William Rose and his Heirs for ever .

The first Question is , Whether by this Will any Estate be Q. 1 devis'd to the Son and Heir of the Testator , or to his Sisters ?

If any Estate be devis'd , what Estate is so devis'd to them , Q. 2 or any of them ?

The third Question is , What Estate is by this Will devis'd Q. 3 to the Nephew ; and if any be , how it shall take effect , whether as a Remainder , or as an Executory devise ?

1. As to the first , it is clear , That no Estate is devis'd to the Son or Daughters , or any of them by express and explicit devise ; but if any be , it is devis'd by implication only , and collection of the Testators intent .

2. If any Estate be given by this Will by Implication to the Son or Daughters , or any of them , it must be either a Joynt Estate to them for their lives , with several inheritances in tayl , or several Estates tayl to them in Succession , that is to one first , and the Heirs of his or her body , and then to another , and so successively .

3. Such an Intail in Succession cannot possibly be , because it appears not by the Will who should first take and have such Estate , and who next , &c. and therefore such an Intail were meerly void , for the incertainty of the person first taking , as was rightly observ'd , and assented to at the Bar.

It remains then , That the Estate devis'd by this Will ( if any be ) to the Son and his two Sisters , must be a joynt Estate for their lives , with several Inheritances to them in tayl , by implication only .

And I am of Opinion , That no such Estate is devis'd by this Will to the Son and two Daughters ; and I shall first observe , That the Law doth not , in Conveyances of Estates , admit Estates to pass by implication regularly , as being a way of passing Estates not agreeable to the plainness requir'd by Law , in transferring Estates from one to another . And for that the Case is ,

A man according to the Custome of the Mannor , Seagood and Hones Case , 10 C. 1. Cr. f , 336. surrendred to the use of Francis Reeve , and of John , Son of the said Francis , and of the longest liver of them ; and for want of Issue of John lawfully begotten , the Remainder to the youngest Son of Mary Seagood , John had only an Estate for life , and no Estate tayl by implication , it being by conveyance . Though ( as the Book is ) it might perhaps be an Estate tayl by Will ; which shews , Estates by implication are not at all favour'd in Law , though in mens last Wills they are allow'd with due restrictions .

In a Will Estates are often given by implication . But I shall take this difference concerning Estates that pass by implication , though it be by Will .

An Estate given by implication of a Will , if it be to the disinheriting of the Heir at Law , is not good , if such implication be only constructive and possible , but not a necessary implication .

I mean by a possible implication , when it may be intended that the Testator did purpose , and had an intention to devise his Land to A. but it may also be as reasonably intended , that he had no such purpose or intention to devise it to A.

But I call that a devise by necessary implication to A. when A. must have the thing devis'd , or none else can have it .

And therefore if the implication be only possible , and not necessary , the Testators intent ought not to be construed to disinherit the Heir , in thwarting the Dispose which the Law makes of the Land , leaving it to descend , where the intention of the Testator is not apparently , and not ambiguously to the contrary .

Spirt & Bences C. 8 Car. 1. Cro. 368. To this purpose the Case is 8 Car. 1. where Thomas Cann devis'd to Henry his youngest Son ; Item , I give to the said Henry my Pastures in the South-fields , and also I will that all Bargains , Grants , and Covenants , which I have from Nicholas Welb , my Son Henry shall enjoy , and his Heirs for ever ; and for lack of Heirs of his Body , to remain to my Son Francis for ever .

It grew a Question , Whether this were an Intayl to Henry of the South-fields , or only of the Bargains and Grants which the Testator had from Welb , which was a very measuring Case ; and in determining this Case

All the Four Judges agreed , That the words of a Will , which shall disinherit the Heir at Common Law , must have a clear and apparent intent , and not be ambiguous , or any way doubtful , ( So are the very words of the Book ) and therefore they resolv'd in that Case , That only the Bargains and Grants had from Welb were intayl'd to the youngest Son , and that he had only an Estate for life in the Pastures in the South-fields .

1. I shall therefore now clear the difference I have taken , That the Heir shall never be disinherited by a devise in a Will by implication , and not explicit , where the implication is only a possible implication , and not a necessary implication .

2. In the second place I shall shew , That the words of this Will do not import a devise to the son and the two daughters for their lives joyntly , with respective Inheritances in tayl to the Heirs of their several bodies , by any necessary implication , but only by an implication that is possible by construction .

3. In the third place I shall shew , That being so as to the Case in question , it is not material whether the devise by way of Remainder to the Nephew , be void or not .

4. In the fourth place , ex abundante , and to make the Will of the Testator not ineffectual in that part of the Will , I shall shew , That the Nephew hath not the Land devis'd to him , when the son and the two daughters dye without Issue of their respective bodies , by way of Remainder , which cannot be but by way of Executory devise , which well may be .

5. That by such Executory devise no perpetuity is consequent to it ; or if it were , such a perpetuity is no way repugnant or contrary to Law .

To manifest the difference taken between an implication in a Will that is necessary , and implication that is only possible , the first Case I shall cite is that known Case 13 H. 7. which I shall exactly put as it is in the Book at large . 13 H. 7. f. 17. Br. Devise pl. 52.

A man devis'd his Goods to his wife , and that after the decease of his wife , his son and heir shall have the House where his Goods are : The son shall not have the House during the wives life ; for though it be , not expresly devis'd to the wife , yet his intent appears , the son shall not have it during her life ; and therefore it is a good devise to the wife for life , by implication , and the Devisors intent , Quod omnes Justitiarii concesserunt . Here I observe ,

1. That this was a devise of the House to the wife by necessary implication ; for it appears by the Will that the Testators son and heir was not to have it until after the death of the wife , and then it must either be devis'd to the wife for life by necessary implication , or none was to have it during the wives life , which could not be .

2. I observe upon this Case , That though the Goods were by particular devise given to the wife , and expresly , that was no hindrance to the wives having the House devis'd to her , also by her husband by implication necessary : which I the rather note , because men of great name have conceiv'd , That where , the devisee takes any thing by express devise of the Testator , such devisee shall not have any other thing by that Will devis'd , only by implication .

Which difference , if it were according to Law , it makes clearly against the Plaintiff , because his Lessor being one of the Daughters of the Testator , had devis'd to her expresly for a Portion , and therefore she should not have any Estate in the Land by the same Will , by a Devise by Implication , as is pretended .

But the truth is , that is a vain difference that hath been taken by many , as I shall anon evince , and therefore I shall not insist upon any Aid from it to my conclusion .

3. I note that this Devise being before the Statute of 32 H. 8. of Wills , the House devis'd must be conceiv'd devisable by Custome at the Common Law .

Before I proceed further , I must take notice that Brook , in abridging the Case of 13 H. 7. in the same numero , saith ,

Devise Br. n. 52. It was agreed , tempore H. 8. per omnes , That if a man will that J. S. shall have his Land in Dale , after the death of his wife , the wife shall have the House for her life by his apparent intent . I note first , That this Case is imperfectly put in Brook , for it mentions a devise of the Land in Dale to J. S. after the death of his wife , and then concludes that the wife shall have the House for her life by his apparent intent ; whereas no mention is made of a House , but of the Land in Dale in the devise . And this Case seems to be only a memory of another Case , Br. Devise 29 H. 8. n. 48. not abridg'd by Brook out of any other Year-book , but reported in his Abridgment in the Title Devise , as a Case happened in 29 H. 8. which is ,

That if a man will that J. S. shall have his Land after the death of his wife , and dies , the wife of the Devisor shall have those Lands for term of her life by those words , ratione intentionis voluntatis . Which Cases being in truth but one and the same Case , seem to go further than the Case of 13 H. 7. for there , as I observ'd before , the wife was to take by necessary implication , because the Heir was excluded expresly by the Will , during the life of the wife .

But by this Case in Br. Title Devise n. 48. & 52. there is no excluding of the Heir , and yet it is said the wife shall have the Land during her life by implication , which is no necessary implication , as in the Case of 13 H. 7. but only a possible implication , and seems to cross that difference I have taken before .

But this Case of Br. hath many times been denied to be Law , and several Iudgments have been given against it . I shall give you some of them , to justifie the difference I have taken , exactly as I shall press the Cases .

Trinity 3 E. 6. A man seis'd of a Mannor , part in Demesne , 3 E. 6. Moore . Rep. f. 7. n. 24. and part in Services , devis'd all the demesne Lands expresly to his wife , during her life ; and devis'd to her also all the Services and chief Rents for Fifteen years , and then devis'd the whole Mannor to a stranger after the death of his wife .

It was resolved by all the Justices , That the last devise should not take effect for any part of the Mannor , but after the wives death ; but yet the wife should not have the whole Mannor by implication during her life , but should have only the demesnes for her life , and the Rent and Services for Fifteen years , and that after the Fifteen years ended the Heir should have the Rents and Services as long as the wife liv'd : Here being no necessary Implication that the wife should have all the Mannor during her life , with an exclusion of the Heir ; she had no more than was explicity given her by the Will , viz. the Demesnes for life , and the Rents and Services for Fifteen years ; but after the Fifteen years the Heir had the Rents and Services , for it could be no more at most but a possible Implication that the wife should have the whole Mannor , during her life .

But with a small variance of this Case if the demesnes had been devis'd to the wife for life , and the Services and Rents for Fifteen years , and the whole Mannor after the wives life to J. S. and that after the wives life , and the life of J. S. his Heir should have had the Demesnes , and Services , and Rents , in that Case it had been exactly the same with the Case of 13 H. 7. because the Devisors intent had been then apparent that the Son was not to have the Mannor , or any part , until the wife and stranger were both dead , and as it was adjudg'd , the stranger had nothing in the Mannor until the wifes death ; therefore in that case , by necessary implication , the wife must have had both Demesnes and Services during her life , notwithstanding the explicit devise to her of the Rents and Services for Fifteen years , otherwise none should have had the Rents and Services after the Fifteen years , during the wives life , which was not to be intended .

15 El. Moore f. 123. n. 265. Another Case I shall make use of , is a Case Paschae 15 El. A man seis'd of a Messuage , and of divers Lands occupied with it , time out of mind , leased part of it to a stranger for years , and after made his last Will in these words , I will and bequeath to my wife my Messuage , with all the Lands thereto belonging in the occupation of the Lessee , and after the decease of my Wife , I will that it , with all the rest of my Lands , shall remain to my younger Son .

The Question in that Case was , Whether the wife should have the Land not leased by implication for her life , because it was clear , the younger Son was to have no part , until the death of the wife . And the Lord Anderson at first , grounding himself upon that Case in Brook ( as it seems ) of 29 H. 8. twice by Brook remembred in his Title Devise n. 28. and after n. 52. was of opinion , That the wife should have the Land not leased by implication : But Mead was of a contrary opinion , for that it was expresly devis'd , That the wife should have the Land leas'd ; and therefore no more should be intended to be given her , but the Heir should have the Land not in lease , during the wives life . To which Anderson , mutata opinione , agreed . Hence perhaps many have collected , That a person shall not take Land by Implication of a Will , if he takes some other Land expresly by the same Will ; but that is no warrantable difference .

For vary this Case but a little , as the former case was varied , That the Land in lease was devis'd to the wife for life , and after the death of the wife , all the Devisors land was devis'd to the youngest Son , as this Case was ; and that after the death of the wife , and the youngest son , the Devisors Heir should have the Land both leas'd , and not leas'd : it had been clear that the Heir ( exactly according to the Case of 13 H. 7. ) should have been excluded from all the Land leas'd , and not leas'd , until after the death of the wife and the younger son . And therefore in such case the wife , by necessary implication , should have had the Land not leas'd , as she had the Land leas'd by express devise , and that notwithstanding she had the leas'd Land by express devise , for else none could have the Land not leas'd during the wives life .

Horton vers. Horton . 2 Jac. Cr. f. 74. & 75. Wadham made a Lease for years , upon condition the Lessee should not alien to any besides his Children . The Lessee deviseth the term to Humphrey his son , after the death of his wife , and made one Marshall and another his Executors , and died : The Lessor entred , as for breach of the Condition , supposing this a devise to the wife of the term by implication . The opinion of the Judges was , It was no devise by implication , but the Executors should have the term until the wives death , but it was said , If it had been devis'd to his Executors after the death of his wife , there the wife must have it by implication , or none could have had it . But Popham denied that Case , because if the devise had been to the Executors after the wives death ; the Executors should , when the wife died , have had the term , as Legatees , but until her death they should have it as Executors generally , which by all opinions fully confirms the difference taken , That a devise shall not be good by implication , when the implication is not necessary ; and in this Case all agreed the Case in 13 H. 7. to be good Law , because the implication there was necessary .

Edward Clatch being seis'd of two Messuages in Soccage tenure , Dyer 15 & 16 El. 4. 330. b. and having Issue a Son and two Daughters by three several Venters . His Son being dead in his life time , and leaving two Daughters , who were Heirs at Law to the Father , devis'd one of the Messuages to Alice his Daughter , and her Heirs for ever ; and the other to Thomazine his Daughter , and her Heirs for ever , with limitation , That if Alice died without Issue , living Thomazine , Thomazine should then have Alice's part , to her and her Heirs ; and if Thomazine died before the Age of Sixteen years , Alice should have her part in Fee also . And if both his said Daughters died without Issue of their bodies , then the Daughters of his Son should have the Messuages . The youngest daughter of the Testator died without Issue , having past her Age of sixteen years , It was resolv'd , That the words in the Will , If his two Daughters died without Issue of their Bodies , did not create , by implication , cross remainders in tayl to the Devisors Daughters , whereby the eldest should take the part of the youngest , but her part should go to the Heirs at Law , according to the Limitation of the Will ; and those words were but a designation of the time when the Heirs at Law should have the Messuages .

Note , That one of the Daughters dying without Issue , the Heirs at Law by the Will had her part , without staying until the other Daughter died without Issue .

1. From these Cases I first conclude , That only possible implication by a Will , shall not give the Land from the right Heir , but a necessary implication which excludes the right Heir , shall give it .

2. That the difference taken is not sound , That one shall not take , by implication of a Will , any Land where the same person hath other Land or Goods expresly devis'd by the same Will ; for if the implication be necessary , the having of Land , or any other thing , by express devise , will not hinder another taking also by implication , as appears in the three Cases by me made use of , viz. 13 H. 7. 3 E. 6. 15 Eliz. cited out of Moore .

3. Whether any thing be given expresly by Will , or not , a possible Implication only shall not disinherit the Heir , where it may as well be intended that nothing was devis'd by implication , as that it was . But if any man think that to be material , in this Case the Daughters had respective Portions expresty devis'd them , viz. Six hundred pounds to each of them , and therefore shall not have the Land also by implication only possible to disinherit the right Heir .

Quest. 2 For the second point , These words ( My Will is , if it happen my Son George , Mary and Katharine my Daughters , to dye without Issue of their Bodies lawfully begotten , then all my Free-lands shall remain and be to my said Nephew William Rose and his Heirs for ever ) are so far from importing a devise of the Land to the Son and Daughters for their lives , with respective Inheritances in tayl by any necessary implication , that both Grammatically , and to common intendment , they import only a designation and appointment of the time when the Land shall come to the Nephew , namely when George , Mary , and Katherine happen to dye Issuless , and not before .

And where the words of a Will are of ambiguous and doubtful construction , they shall not be interpreted to the disinheriting of the right Heir , as is already shew'd .

This being clear , That there is no devise by this Will of the Land by implication in any kind to the Son and Daughters , it follows that Katherine , the surviving Daughter of the Testator , and Lessor of the Plaintiff , had no Title to enter and make the Lease to the Plaintiff Gardner ; and then as to the Case in question before us , which is only , Whether the Defendants be culpable of Ejecting the Plaintiff ? It will not be material whether

The devise to the Nephew , William Rose , be void or not ; and if not void , how and when he shall take by the devise , which may come in question perhaps hereafter .

But to that point ex abundante , and to make the Will not ineffectual in that point of the devise to the Nephew , if no Estate for lives , or other Estate , be created by this Will by Implication to the Son and Daughters , it follows , That the Nephew can take nothing by way of Remainder , for the Remainder must depend upon some particular Estate , and be created the same time with the particular Estate . Cok. Litt. f. 49. a. The Remainder is the residue of an Estate in Land depending upon a particular Estate , and created together with the same , and the Will creating no particular Estate , the consequent must be , That the Land was left to descend in Fee-simple to the heir at law , without creating either particular Estate or Remainder upon it .

Sir Edward Coke hath a Case , Cok. Litt. f. 18. a. but quotes no Authority for it ; If Land be given to H. and his heirs , as long as B. hath heirs of his body , the Remainder over in Fee , the Remainder is void , being a Remainder after a Fee-simple , though that Fee-simple determines when no heirs are left of the body of B. whether that case be law or not , I shall not now discuss ; in regard that when such a base Fee determines for want of Issue of the body of B. the Land returns to the Grantor and his heirs , as a kind of Reversion , and if there can be a Reversion of such Estate , I know not why a Remainder may not be granted of it , but for the former reason , this can be no Remainder , because no particular Estate is upon which it depends ; and if the Lord Coke's Case be law , it is the stronger , Cok. Litt. f. 18. a. Sect. 11. that no Remainder is in this Case .

But without question , a Remainder cannot depend upon an absolute Fee-simple by necessary reason ; For when all a man hath of Estate , or any thing else , is given , or gone away , nothing remains but an absolute Fee-simple , being given or gone out of a man , that being all , no other or further Estate can remain to be given or dispos'd , and therefore no Remainder can be of a pure Fee-simple .

To this purpose is the Case of Hearne and Allen in this Court . 2 Car. 1. Cr. f. 57. Richard Keen seis'd of a Messuage and Lands in Cheping-Norton , having Issue Thomas his Son , and Anne a Daughter by the same Venter , devis'd his Land to Thomas his Son , and his heirs for ever ; and for want of heirs of Thomas , to Anne and her heirs , and died .

It became a Question , Whether Thomas had an Estate in Fee or in Tayl by this Will , for he could not dye without heir if his Sister outlived him , who was to take according to the intent of the Devisor ? Two Judges held it ( and with reason ) to be an Estate tayl in Thomas , and the Remainder to the Daughter , who might be his heir , shew'd , That the Devise to him and his heirs could be intended only to be to him and the heirs of his body ; But three other Judges held it to be a devise in Fee , but all agreed , if the Remainder had been to a Stranger it had been void , for then Thomas ( which is only to my purpose ) had had an absolute Estate in Fee , after which there could be no Remainder , which is undoubted law .

The Case out of Coke's Littleton , and this Case , are the same to this purpose , That a Remainder cannot depend upon a Fee-simple ; yet in another respect they much differ : For in this last Case , after an Estate in Fee devis'd to Thomas , and if he died without heir , the Remainder to a Stranger or Sister of the half blood , not only the Remainder was void as a Remainder , but no future devise could have been made of the land by the Devisor ; for if Thomas died without heir the land escheated , and the Lords Title would precede any future devise .

But in that Case of Sir Edward Coke , which he puts by way of Grant , if it be put by way of devise , That if land be devised to H. and his heirs as long as B. hath heirs of his body , the Remainder over , such later devise will be good , though not as a Remainder , yet as an Executory devise , because somewhat remain'd to be devis'd when the Estate in Fee determin'd upon B. his having no Issue of his Body .

And as an Executory Devise , and not as a Remainder , I conceive the Nephew shall well take in the present Case . And the intention of the Testator , by his Will , will run as if he had said , I leave my Land to descend to my Son and his Heirs , according to the Common Law , until he , and both my Daughters , shall happen to dye without Issue ; And then I devise my Land to my Nephew William Rose , and his Heirs . Or as if he had said , my Son shall have all my Land , To have and to hold , to him and his Heirs , in Fee-simple , as long as any Heirs of the bodies of A.B. and c. shall be living , and for want of such Heirs , I devise my Land to my Nephew William Rose and his Heirs . The Nephew shall take as by a future and Executory Devise .

And there is no difference , whether such devise be limited upon the contingent of three Strangers dying without Heirs of their bodies , or upon the contingent of three of the Devisors own Children , dying without Heirs of their Bodies ; for if a future devise may be upon any contingent , after a Fee-simple , it may as well be upon any other contingent , if it appear by the Will the Testator intended his Son and Heir should have his Land in Fee-simple .

This way of Executory devise after a Fee-simple of any nature , was in former Ages unknown , as appears by a Case in the Lord Dyer , 29 H. 8. f. 33. concerning a Devise to the Prior of St. Bartholomew in West-Smithfield , by the clear Opinion of Baldwin and Fitz herbert , the greatest Lawyers of the Age.

But now nothing more ordinary . The Cases are for the most part remembred in Pell and Browns Case , that is , Dyer f. 124. Ed. Clatch his Case , f. 330. b. & 354. Wellock & Hamonds Case cited in Borastons Case , 3. Rep. Fulmerston & Stewards Case , &c.

I shall instance two Cases . The first is Haynsworths and Prettyes Case , Where a man seis'd of Land in Soccage , having Issue two Sons and a Daughter , devis'd to his youngest Son and Daughter Twenty pounds apiece , to be paid by his eldest Son , and devis'd his Lands to his eldest Son and his Heirs , upon Condition if he paid not those Legacies , that his Land should be to his second Son and Daughter , and their Heirs . The eldest Son fail'd of payment . After Argument upon a Special Verdict , It was resolv'd by the Court clearly , That the second Son and Daughter should have the Land .

1. For that the devise to his Son and his Heir in Fee , Hill. 41. El. Cr. 833. a. being no other then what the Law gave him was void .

2. That it was a future devise to the second Son and Daughter , upon the contingent of the eldest Sons default of payment .

3. That it was no more in effect than if he had devis'd , That if his eldest Son did not pay all Legacies , that his land should be to the Legatories , and there was no doubt in that Case , but the land , in default of payment , should vest in them .

Which Case , in the reason of law , differs not from the present Case , where the land is devis'd by devise future and executory to the Nephew , upon a contingent to happen by the Testators Son and Daughters having no issue .

18 Jac. Pell & Browns C. Cro. f. 590. The second Case is that of Pell and Brown , the Father being seis'd of certain land , having Issue William his eldest Son , Thomas and Richard Brown , devis'd the land to Thomas and his Heirs for ever ; and if Thomas died without Issue , living William , then William should have the lands to him , his Heirs and Assigns .

1. This was adjudg'd an Estate in Fee-simple in Thomas .

2. That William by way of Executory devise , had an Estate in Fee-simple in possibility , if Thomas died without Issue before him .

And it being once clear , That the Estate of Thomas was a Fee-simple , determinable upon a contingent , and not an Estate tayl , and so in the present case it being clear'd , that George , the Testators Son , had the land descended to him in Fee from the Testator , and took no Estate tayl expresly , or by implication from the Will , it will not be material whether the Contingent which shall determine that Fee-simple proceeds from the person which hath such determinable Fee , or from another , or partly from him , and partly from another , as in Haynsworth's Case , the Son determined his Fee-simple by not paying the Legacies ; in Pell and Brown's Case , Thomas his Fee-simple determined by his dying without Issue , living William , the Fee-simple vested in George the Son by descent , determines when he and his two Sisters dye without Issue ; and upon such determination in every of these Cases , the future and executory devise must take effect .

But the great Objection is , That if this should be an executory devise to the Nephew , upon the contingent of George the Son , and both his Sisters dying without Issue . It will be dangerous to introduce a new way of perpetuity ; for if a man have several Children , and shall permit his Estate to descend , or by his Will devise it to his Heir , so as he may therein have an unquestionable Fee-simple ( which is the same with permitting it to descend ) he may then devise it futurely , when all his Children shall dye without Issue of their bodies to J. S. and his Heirs , as long as A. B. and C. strangers , shall have any Heirs of their bodies living , and then to a third person by like future devise : For if he should devise it futurely to J. S. and his Heirs , as long as J. S. had any Heirs of his body , it were a clear Estate tayl in J. S. upon which no future devise could be , but it would be a Remainder to be docked .

This Objection was in some measure made by Doderidge in Pell and Browns Case , and the Iudges said there was no danger , Vid. Stiles Rep. Gay & Gaps Case , 258 , 275. because the Estate in Fee of Thomas did not determine by his dying without Heir of his body generally , but by dying without Issue , living William ; for if the land had been given to Thomas and his Heirs for ever , and if he died without Heirs of his body , then to William and his Heirs , Thomas his Estate had been judg'd an Estate tayl with the Remainder to William , and not a Fee , upon which no future or executory devise can be . So was it adjudg'd in Foy and Hinds Case 22 Jac. Cr. f. 695. & 6. and anciently 37 Ass. p. 18. 5. H. 5. f. 6. and to be within the reason of Mildmay and Corbets Case of Perpetuities .

But in Pell and Browns Case , the Iudges said it was more dangerous to destroy future devises , than to admit of such Perpetuities as could follow from them any way by determinable Fee-simples , which is true ; for a Fee simple , determinable upon a contingent , is a Fee-simple to all intents , but not so durable as absolute Fee-simples . And all Fee-simples are unequally durable , for one will escheat sooner than another by the failer of Heirs . An Estate of Fee-simple will determine in a Bastard with his life , if he want Issue . An Estate to a man and his Heirs as long as John Stiles hath any Heir , which is no absolute Fee-simple , is doubtless as durable as the Estate in Fee which John Stiles hath to him and his Heirs , which is an absolute Fee-simple . Nor do I know any Law simply against a Perpetuity , but against Intails of Perpetuity , for every Fee-simple is a perpetuity , but in the accident of Alienation , and Alienation is an incident to a Fee-simple determinable upon a contingent , as to any more absolute or more perdurable Fee-simple .

The Chief Justice , Justice Archer , and Justice Wylde for the Defendant . Justice Tyrrell for the Plaintiff .

Judgment for the Defendant .

Hill. 21 & 22 Car. II. C. B. Craw versus Ramsey . Philip Craw is Plaintiff , and John Ramsey Defendant , In an Action of Trespass and Ejectment .

THE Plaintiff declares , That Lionel Tolmach Baronet , and Humphrey Weld Esquire , January the Twentieth , the Sixteenth of the King , demis'd to the Plaintiff the Mannor of Kingston , with the appurtenances , in the County of Surrey , one Messuage , two Barns , one Dove-house , two Gardens , eighty Acres of Land , and ten Acres of Meadow , with the appurtenances in Kingston aforesaid , and other places , and also the Rectory of Kingston aforesaid , To have and to hold to the said Philip and his Assignes , from the Feast of the Nativity last past , for five years next ensuing . By virtue whereof he entred into the Premisses , and was possessed , until the Defendant , the said Twentieth of January in the Sixteenth year of the King , entred upon him , and Ejected him with force , to his Damage of Forty pounds .

To this the Defendant pleads he is not Culpable .

Vpon a Special Verdict it appear'd , That

Robert Ramsey , Alien , Antenatus , had Issue 1. Robert 2. Nicholas 3. John 4. George Antenatos

Robert the son , had Issue Margaret Isabel Jane Antenatas , living the First of Octob. 14 Car. 1. and now have Issue at Kingston .

John naturalized , 9. Maii , 1 Jac. John , the third son , by the name of Sir John Ramsey , was naturalized by Act of Parliament , holden at Westminster , May the Ninth , 1. Jac. and after made Earl of Holdernes .

George Ramsey , the fourth Son , George naturalized , 7 Jac. was naturalized in the fourth Session of Parliament held at Westminster , begun by Prorogation , 19 Febr. 17 Jac. and after had Issue John primogenitum filium , Quodque idem Johannes had Issue John the now Defendant , primogenitum suum filium , but finds not where either of these were born , nor the death of George .

Nicholas the second Son , had Issue Patrick his only Son , Nicholas had Issue Patrick a Native , 15 Jac. born at Kingston , after the Union , 1 Maii , 1618. about 15 Jac.

John the third Son , Earl of Holdernes , seiz'd of the Mannors , Rectory , and Premisses in the Declaration mentioned , with other the Mannors of Zouch and Taylboys , John covenanted to levy a Fine de Premissis , 1 Jul. 22 Jac. and divers other Lands in the County of Lincoln in Fee , by Indenture Tripartite between him on the first part , Sir William Cockayne and Martha his Daughter of the second part , &c. Dated the First of July , 22 Jac. Covenanted to levy a Fine before the Feast of St. Andrews next ensuing to Sir William of all his said Lands , To the use of himself for life , then to the use of Martha , his intended Wife , for life , with Remainder to the Heirs Males of his body begotten on her , Remainder to such his Heirs Females , Remainder to his right Heirs .

The Marriage was solemnized the Seven and twentieth of Sept. 22 Jac. John married 29 Sept. 22 Jac. He levied the Fine Octab. Michael . 22 Jac. John died 1 Car. 1. Jan. 24.

The Fine accordingly levied in the Common Pleas Octabis Michaelis , 22 Jac. of all the Lands and Premisses among other in the Declaration mentioned .

The Earl , so seiz'd as aforesaid , with the Remainder over at Kingston aforesaid , died the Four and twentieth of January , 1 Car. 1.

His Countess entred into the Premisses in the Declaration mentioned , and receiv'd the Profits during her life .

After the Earls death a Commission issued , Inquisition after his death capt. 29 Febr. 7 Car. 1. and an Inquisition taken at Southwark in Surrey the Nine and twentieth of February , 7 Car. 1.

By this Inquisition it is found the Earl died seiz'd of the Mannor of Zouch and Taylboys , and divers Land thereto belonging in Com. Lincoln , and of the Mannor of Westdeerham , and other Lands in Com. Norfolk , and of the Rectory of Kingston , and of the Advowson of the Vicaridge of Kingston in Com. Surrey , but no other the Lands in the Declaration are found in that Office . And then the Tenures of those Mannors are found , and that the Earl died without Heir . But it finds that the Earl so seiz'd , levied a Fine of the Premisses to Sir William Cockayne , per nomina Maneriorum de Zouches & Taylboys , & Rectoriae de Kingston , cum omnibus Decimis dictae Rectoriae pertinentibus , and finds the uses ut supra , and so finds his dying without Heir , &c. It finds the Fine levied in terminis Michaelis , 22 Jac. but not in Octabis Michaelis , as the Special Verdict finds , but between the same persons .

The Irish Act to naturalize all Scots , 4 Jul. 10 Car. 1. The general Act of Naturalizing the Scottish Antenati in the Kingdome of Ireland , was made in the Parliament there , begun at the Castle of Dublin the Fourth of July , 10 Car. 1.

Nicholas died 1 Sept. 10 Car. 1. Nicholas died the First of September , 10 Car. 1. Leaving Issue Patrick .

Murrey's Pat. 25 Octob. 10 Car. 1. King Charles the First , by his Letters Patents dated the Five and twentieth of October , the Tenth of his Reign , under the Great Seal , granted to William Murrey , his Heirs and Assigns , in Fee-farm , All the said Mannors , Lands , and Rectory , mentioned in the Declaration , with the Reversion depending upon any life , lives , or years .

Patrick conveys to the Earl of Elkin 16 Febr. 1651. Patrick and Elizabeth his wife , by Indenture dated the Sixteenth of February 1651. Covenant with the Earl of Elkin and Sir Edward Sydenham in consideration of Eleven hundred pounds , and bargained and sold the Premisses in the Declaration to them and their Heirs , and covenanted at the Earls charge to levy a Fine with proclamation , Patrick & Uxor . levy a Fine à die Paschae in fifteen days . to the use of the Earl and his Heirs , of the Premisses , before the end of Easter Term next , and accordingly did levy it with warranty against them , and the Heirs of Patrick , by force whereof , and of the Statute of Uses , the said Earl and Sydenham were seiz'd , &c.

The Earl and Sydenham convey to the Countess Dowager , 10 Mar. 1652. The Earl of Elkin and Sydenham , by Indenture of Lease , dated the Tenth of March , 1652. and by Deed of Release and Confirmation , conveys the Premisses to Amabel Dowager of Kent , and the Lady Jane Hart , viz. the Eleventh of March , 1652. by way of Bargain and Sale to them and their Heirs , who entred by the Lease , and were in quiet possession at the time of the Release .

The Dowager conveys to Pullayne and Neale . The Dowager and Lady Hart by like Conveyance of Lease and Release , bargained and sold to Pullayne and Simon Neale , dated the First and Second of November , 1655. who entred , and were in possession as aforesaid .

John Ramsey the now Defendant , entred in 15 Car. 2. and kept possession .

Dat. 25 Sept. 1656. Pullayne and Neale convey to Talmuch and Weld by Bargain and Sale . 20 Jan. 16 Car. 2. John Pullayne and Symon Neale , by Deed of Bargain and Sale , duly inrolled , convey'd the Premisses to Lionel Talmuch and Humphrey _____ their Heirs and Assigns .

Lionel and Humphrey demis'd to Philip _____ the Plaintiff having entred , and being in possession by Indenture , dated the Twentieth of January , 16 Car. 2. John then in possession , and John re-entred upon the Plaintiff , and Ejected him .

The Questions upon this Record will be three .

1. Whether a Naturalization in Ireland will naturalize the person in England ? If it will not , all other Questions are out of the Case .

2. If it will , then whether by that Act for naturalizing the Antenati of Scotland any , his brothers , had title to inherit the Earl of Holdernes in the lands in question ? By reason of the Clause in the Act of Naturalization , That nothing therein contained should extend to avoid any Estate or Interest in any Lands or Hereditaments , which have already been found , and accrewed to his Majesty , or to King James , for want of naturalization of any such person , and which shall and doth appear by Office already found and return'd , and remaining of Record , or by any other matter of Record .

An Office was found , as appears by the Verdict 7 Car. afore the Act , by which it is found he died seised of the Rectory of Kingston in Reversion , and of the Advowson of the Vicaridge , and died without Heir , and that the same escheated to the King ; and if all the lands in question were held of the King , it being found he died without Heir , the proviso will save all to the King .

3. Whether Nicholas Ramsey , under whom the Plaintiffs claim , be the person who had title to the lands in question , if any had ? Because

1. The death of Robert the elder Brother , is not sufficiently found before the Act of Naturalization , for then he , and not Nicholas , was heir to John .

2. Because if Robert the elder were dead before , yet he left Issue three Daughters , who were naturalized as well as Nicholas by the Act , and are the heirs to the Earl , being the Issue of his elder Brother .

If Robert had died after the Irish Act made , this Verdict had been as true as now it is : Therefore it is not sufficient to find him dead before the Act.

Et Juratores ulterius dicunt quod praedictus Robertus filius primogenitus , & natu maximus praedicti Roberti patris postea obiit , tempore mortis suae habens & relinquens tres filias de corpore ipsius Roberti filii legitime procreatas , viz. Margaret . Isabel . & Janam Alienigenas natas in Regno Scotiae ante accessionem praedict. Quae quidem Margaret . Isabella , & Jana , primo die Octobris , Anno Regni Domini Caroli nuper . Regis Angliae primi , quarto decimo , in plena vita fuerant , & habent exitus de carum corporibus exeuntes modo superstites , & in plena vita existentes apud Kingston super Thames praedict.

As to the second part , in the Case of Aliens , nothing interrupts the common course of Descents , but Defectus Nationis , as Bracton terms it . Therefore that being taken away by naturalization , they shall inherit as if it had not been , and then the eldest Brothers Issue had inherited before the second Brother .

1. It is admitted , and will easily appear , That one naturalized in Scotland since the Union , cannot inherit in England .

2. Ireland then differs from Scotland , in a common difference with Gernsey , Jersey , Isle of Man , Berwick , and all the English Plantations , for that they are Dominions belonging to the Crown of England , which Scotland is not .

3. If this difference , which was never discussed in Calvin's Case , alter not the Case from a naturalizing in Scotland , it remains , whether by Act of Parliament of England , though not extant , Ireland in this matter be not differenc'd from other Dominions belonging to England ?

1. He that is priviledg'd by the law of England to inherit there , must be a Subject of the Kings .

2. He must be more than a local Subject , either in the Dominion of England , or out of the Dominion of England ; for meer Aliens , when locally in England , or any other Dominions of the Kings , are local Subjects .

3. He must be otherwise a Subject than any Grant or Letters Patents of the King can make him ; 7 Rep. Calvins C. f. 7. a. 36 H. 6. Tit. Deniz . Br. 9. Therefore a Denizen of England by Letters Patents for life , in tayl , or in fee , whereby he becomes a Subject in regard of his person , will not enable him to inherit in England , but according to his Denization , will enable his Children born in England to inherit him , and much less will his Denization in any other Dominion .

Whence it follows , That no Laws made in any other Dominion acquired by Conquest , or new Plantation , by the King's Lieutenants , Substitutes , Governours , or People there , by vertue of the King's Letters Patents , can make a man inherit in England , who could not otherwise inherit : For what the King cannot do by his Letters Patents , no delegated power under him can do by his Letters Patents .

It follows likewise upon the same reason , That no tenure of Land , by Homage , Fealty , or other Service in any other Dominion of the Kings , acquired by Conquest , or otherwise by any Grant or Letters Patents , can make a man inherit in England , who could not otherwise inherit , Calvins Case , f. 6. b. for that is not Homagium ligeum , but Feodale , as is rightly distinguished .

4. A man born a Subject to one that is King of England , cannot therefore inherit in England , for then the Antenati in Scotland had inherited in England ; they were born Subjects to King James , who was King of England ; but not born when he was King of England .

5. A Subject born in any Dominion belonging to the Crown of England , is inheritable in England as well as native Englishmen . So the natural born Subjects of Ireland , Gernsey , Jersey , Berwick , and all the English Plantations inherit ; but the specifique reason of their inheriting in England , is not because they are born in Dominions belonging to the Crown of England , for if so , none could inherit who wanted that , and then the Postnati of Scotland should not inherit ; for Scotland is not a Dominion belonging to the Crown of England , but to the King of England .

It remains then , according to the Resolution and Reasons of Calvin's Case , That the specifique and adequate cause , why the Kings Subjects of other his Dominions than England , do inherit in England , is , because they are born his natural Subjects as the English are , he being actually King of England at the time of their birth , when their subjection begins ; Cok. Rep. Calvins Case . and so are born Liege-men to the same King .

But then , since all Liegeance and Subjection are acts and obligations of Law ( for a man owes no liegeance excluding all Civil Law ) but a man is said a natural Subject , because his Subjection begins with his birth , that is , as soon as he can be subject , and a King is said to be a mans natural Prince , because his Protection begins as soon as the Subject can be protected , and in the same sense , that a Country where a man is born , is his natural Country , or the Language he first speaks , is his natural Tongue ; why should not an Act of Law , making a man as if he had been born a Subject , work the same effect as his being born a Subject , which is an effect of law ?

1. The Reason is , That naturalization is but a fiction of Law , and can have effect but upon those consenting to that fiction : Therefore it hath the like effect as a mans Birth hath , where the Law-makers have power , but not in other places where they have not . Naturalizing in Ireland gives the same effect in Ireland as being born there , so in Scotland as being born there , but not in England , which consents not to the fiction of Ireland or Scotland , nor to any but her own .

2. No fiction can make a natural Subject , for he is correlative to a natural Prince , and cannot have two natural Soveraigns ( but may have one Soveraign , as a Queen Soveraign and her Husband in two persons ) no more than two natural Fathers , or two natural Mothers . But if a fiction could make a natural Subject , he hath two natural Princes , one where he was born , and the other where naturalized .

3. If one naturalized in Ireland should in law make him naturally born there , then one naturalized in Scotland , after the Vnion , should make him naturally born there , consequently inheritable in England , which is not contended .

4. A naturalized person in a Dominion belonging to England , is both the King 's Subject when he is King of England , and inheritable in that his Dominion , when naturaliz'd .

So the Antenati of Scotland are the King of England's Subjects when he is King of England , and inheritable in that Dominion of his , yet cannot inherit in England ; and being his Subjects before , doth not make them less his Subjects when King of England ; Or if it did , Nicholas Ramsey , before he was naturalized in Ireland , and became there a Subject to the King of England , was a Subject in Scotland of the Kings .

There are four ways by which men born out of England may inherit in England , besides by the Statute of Edward the Third , De Natis ultra Mare .

1. If they be born in any Dominion of the Kings when he is actually King of England .

2. If they be made inheritable by Act of Parliament in England , as by naturalization there .

3. If they be born Subjects to a Prince , holding his Kingdom or Territories as Homager and Liegeman to the King of England , Calvins Case , f. 21. b. during the time of his being Homager . So the Welch were inheritable in England before 12 Ed. 1. though Subjects to the Princes of Wales , who were Homagers to the King of England . So were the Scotch in Edward the First 's time , during the King of Scotlands Homage to him , and to other Kings of England , as long as it continued . And that is the reason of the Case in 14. of Eliz. in the Lord Dyer , Dyer 14 Eliz. f. 304. pl. 51. where a Scotch-man being arraign'd for a Rape of a Girl under Seven years of Age , and praying his Tryal per medietatem Linguae , because he was a Scot born , it was denied him by the Opinion of the Iudges of both Benches , for that , among other reasons , a Scot was never accounted an Alien here , but rather a Subject ( So are the words of the Book ) But they did not consider that the Homage was determined then , as it was consider'd after in Calvin's Case , when only the Postnati of Scotland were admitted inheritable in England . Vpon the same ground one Magdulph , Subject to the King of Scots , appeal'd from his Iudgment to Edward the First , Pl. Parl. 21 E. 1. f. 152. & 157. ut Superiori Domino Scotiae .

But this is to be understood where such Prince is Homager . Subjectionis , and not only Infeodationis ; for another King may hold of the King of England an Island , or other Territory , by Tenure , and not be his Subject .

4. If the King of England enter with his Army hostilly the Territories of another Prince , and any be born within the places possessed by the Kings Army , and consequently within his Protection , such person is a Subject born to the King of England , if from Parents Subjects , and not Hostile .

5 Eliz. Dyer f. 224. pl. 29. So was it resolved by the Iustices 5 Eliz. That one born in Tourney in France , and conquered by Henry the Eighth , being a Bastard between persons that were of the King's liegeance , was enabled to purchase and implead within the Realm , and was the same as if a French-man and French-woman should come into England , and have a Son born there . The like law if he had been born of French Parents in Tourney , for it was part of the Dominions belonging to England pro tempore , as Calice was .

Those under the King's Power , as King of England , in another Prince his Dominions , are under his Laws .

Fleta . l. 2. c. 3. 14 E. 1. King Edward the First being at Paris 14 E. 1. one Ingelram de Nogent stole silver Dishes in the King's House there , and after dispute about his Tryal with the King of France and his Council , he was convicted before the Steward of the King of England's House , and executed , though the Felony was done in France , in Aliero Regno .

Fleta . l. 2. c. 3. 12 E. 1. So Edmund de Murdak brought an Appeal in Gascoigne , coram Seneschallo Hospitii Regis Angliae against one William de Lesnes of Robbery done to him , 12 E. 1. infra metas Hospitii Regis infra quas invenit ipsum . And the Defendant , non potuit appellum illud per exceptionem alterius Regni declinare .

1. Regularly who once was an Alien to England , cannot be inheritable there , but by Act of Parliament , which is Common Experience .

But Ramsey was an Alien to England , being Antenatus of Scotland , and therefore cannot inherit here but by Act of Parliament .

If it be said there is an Exception to that , viz. unless he be naturalized in Ireland ; that Exception must be well prov'd , not suppos'd : For the Question being , Whether one naturalized in Ireland do thereby become as a Native of England ? must not be resolv'd by saying , That he doth become as a Native of England , otherwise it is prov'd only by begging the Question .

2. The being no Alien in England belongs not to any made the King of Englands Subject by Act of Law , when he is King of England , but to such as are born so .

Natural legitimation respecteth actual Obedience to the Soveraign at the time of the birth , Calvins Case , f. 27. for the Antenati remain Aliens , because they were born when there were several Kings of the several Kingdoms ; not because they are not by act of law afterwards become Subjects to the King of England by the Union of the Crowns : But he that is naturaliz'd in Scotland or Ireland , is not a Subject born to the King of England , but made by a subsequent Act in law .

3. And chiefly the manner of subjection of a Stranger naturaliz'd in Scotland or Ireland , doth exactly agree with that of the Antenatus , and not of the Postnatus . For ,

1. The Antenatus was another Prince his Subject , before he was the King of Englands .

2. The Antenatus might have been an Enemy to England , by a war between the several Kings before the Vnion .

So a Stranger naturalized in Scotland or Ireland , was the natural Subject of some other Prince necessarily before he was naturaliz'd , and then might have been an Enemy to the King of England , by a war between his natural Soveraign and the King of England , before he was naturalized .

But the Postnatus was never subject to any before he was the King of Englands , nor ever in possibility of being an enemy to England , both which are the properties of subjection in the native English Subject , and is the reason why the Postnatus in England is as the Natives of England .

No fiction of Law can make a man a Natural Subject that is not , for a Natural Subject and a Natural Prince are Relatives , and if an Act of Naturalization should thereby make a man a natural Subject , the same Subject would have two natural Soveraigns . one when he was born , the other when naturalized , which he can never have more then two Natural Fathers , or two Natural Mothers , except the Soveraigns be subordinate , the Inferior holding his Kingdome as Liege Homager from the Superiour .

And perhaps in the Case of Severing the Kingdoms , Calvins Case 27. as Sir Edward Coke saith .

Nor can an Act of Parliament in one place take away the natural subjection due to another Prince for want of power .

And the Law of England being , That an Antenatus shall not inherit , because an Alien , without an Act of Parliament making him none : The fiction of an Act in another Kingdom , to which England never consented , shall not alter the law here , because he is made in Ireland as if born there .

If there were an Act of Parliament in England , That persons naturalized in Ireland or Scotland , should be no Aliens in England , no man thinks that thereby Scotland or Ireland could naturalize a man in terminis in England . But a man naturalized there , would by consequent be naturalized in England , because the law of England did warrant that consequent .

But to say , That a man naturalized in Ireland is not directly naturalized in England , but by consequent , when the question is , Whether one naturalized in Ireland be thereby naturalized in England ? is to beg for a proof that which is the question .

Therefore it must be first proved , That there is a Law of England to warrant that consequent .

Inconveniences .

The Law of England is , That no Alien can be naturalized but by Act of Parliament , with the assent of the whole Nation .

1. Now if this naturalization in Ireland should be effectual for England , then a whole Nation should become Natives in England , without Act of Parliament , of what Country , Religion , or Manners soever they be , by an Act of Ireland .

2. If the Parliament of England should refuse to naturalize a number of men , or Nation , as dangerous or incommodious to the Kingdom , yet they might be naturalized , whether the Houses of Parliament would or not , by an Act of Ireland .

3. By this invention the King may naturalize in England without an Act of Parliament , as well as he may Denizen ; for if the Parliament of Ireland enact , That the King , by Letters Patents , shall naturalize in Ireland , then they so naturalized in Ireland by Patent , will be naturalized in England by consequent , so they may enact the Deputy or Council of Ireland to naturalize .

4. If an Alien hath Issue an Alien Son , and the Father be denizen'd in England , and after hath a Son born in England , the Law hath been taken , That the youngest Son shall inherit the Fathers Land . Co. Litr. f. 8. a. Doct Stud. l. 1. Cr. 17 Jac. f. 539. Godfrey & Dixons C. So is Sir Edward Coke Litr. f. 8. a. and other Books ; yet if the elder be naturaliz'd in Ireland , the Estate which the youngest hath , by the Law of England , will be plucked from him .

Having thus opened the Inconveniences consequent to this Irish Naturalization , the next is , That Judges must judge according as the Law is , not as it ought to be . But then the Premisses must be clear out of the established Law , and the Conclusion well deduc'd before great Inconveniences be admitted for Law . But if Inconveniences necessarily follow out of the Law , only the Parliament can cure them .

1. I shall begin with the admitted Doctrine of Calvin's Case . By that Case , He that is born a Subject of the King of England in another Dominion than England , is no Alien in England . So the Scots , born when the King of Scots was King of England , are no Aliens ; those born before in Scotland are . Therefore Nicholas Ramsey , who is not born the Kings Subject of Ireland , must be an Alien in England , whose Law , by the Rule of that Case , makes only Subjects born , and not made of another Dominion , not to be Aliens in England .

2. It is agreed to my hand , That an Alien naturalized at this day in Scotland , remains an Alien in England notwithstanding .

3. By the Doctrine of Calvin's Case , a natural born Subject to the Kings person of a Forraign Dominion , is not priviledg'd in England from being an Alien , else the Antenati of Scotland were priviledg'd , for they are natural born Subjects to the Kings person , as well as the Postnati .

4. It stands not with the Resolution of that Case , That the natural born Subjects of the Dominions belonging to the Crown of England ( qua such ) should be no Aliens in England , which was the principal matter to have been discuss'd , but was not , in Calvin's Case , and chiefly concerns the point in question .

The Case relied on to justifie the Iudgment in Calvins Case are several Authorities , That the King of England's Subjects formerly were never accounted Aliens in England , though they were all out of the Realm of England , and many within the Realm of France . But all these are admitted in that Case ( as most of them were ) Dominions belonging to the Crown of England ; and if so , Of Normandy , Brittain , Aquitain , Anjou , Gascoigne , Guien , Calais , Jersey and Gernsey , Isle of Man , Berwick and other Parts of Scotland . Ireland , Tourney , &c.

What Inference could be made for the Resolution of Calvin's Case ? That because the Kings natural Subjects of Dominions belonging to the Crown of England , as these did , were no Aliens in England : Therefore that Subjects of a Dominion not belonging to the Crown , as the Postnati of Scotland are , should be no Aliens in England , Non sequitur .

Therefore it is for other reason then , because natural Subjects of Dominions belonging to the Crown of England , they were no Aliens by the meaning of that Resolution . And the Adequate Reason being found out , why they are not Aliens , will determine the point in question .

1. It was not because they were natural Subjects to him that was King of England , for then the Antenati of Scotland would be no Aliens , they being natural Subjects to him that is King of England , as well as the Postnati .

2. It was not because they were natural Subjects of Dominions belonging to the Crown of England ; for then the Postnati would be Aliens in England , for they are not Subjects of a Dominion belonging to the Crown of England .

3. It remains then , the Reason can be no other , but because they were born under the same Liegeance with the Subjects of England , which is the direct reason of that Resolution in Calvins Case . Calvins Case , f. 18. b. a. The words are , The time of the birth is of the essence of a Subject born , for he cannot be a Subject to the King of England ( that is , to be no Alien ) unless at the time of his birth he was under the Liegeance and Obedience of the King ( that is ) of England . And that is the reason that Antenati in Scotland ( for that at the time of their birth they were not under the Liegeance and Obedience of the King of England ) are Aliens born , in respect of the time of their birth .

The time of his birth is chiefly to be considered , for he cannot be a Subject born of one Kingdom , that was born under the Liegeance of a King of another Kingdom , albeit afterwards one Kingdom descend to the King of the other .

Therefore Ramsey , being not under the Liegeance of the King of England at the time of his birth , must still continue an Alien , though he were naturalized in Ireland .

Notwithstanding all this , it may be urg'd ,

A person naturalized in England is the same as if he had been born in England , and a person naturalized in Ireland is the same as if he had been born in Ireland .

But a person born in Ireland is the same as if he had been Obj. 1 born , or naturalized in England .

Therefore a person naturalized in Ireland , is the same as if he had been born or naturalized in England . This seems subtile and concluding .

Answ. For Answer , I say , That the same Syllogism may be made of a person naturalized in Scotland after the Vnion , viz.

A person naturalized in England , is the same with a person born in England ; and a person naturalized in Scotland , after the Vnion , is the same with a person born in Scotland after the Vnion .

But a person born in Scotland , after the Union , is the same with a person born or naturalized in England .

Therefore a person naturalized in Scotland , after the Union , is the same with a person born or naturalized in England .

Yet it is agreed , That a person naturalized in Scotland , since the Union , is no other than an Alien in England ; Therefore the same Conclusion should be made of one naturalized in Ireland .

To differ these two Cases , it may be said , That the naturalizing Obj. 2 of a person in Scotland can never appear to England , because we cannot write to Scotland to certifie the Act of Naturalizing , as we may to Ireland , out of the Chancery , and as was done in the present Case in question , as by the Record appears .

This is a difference , but not to the purpose , and then it is the same as no difference ; For I will ask by way of Supposition :

Admit an Act of Parliament were made in England for clearing all Questions of this kind ,

That all persons inheritable , in any Dominion whatsoever , whereof the King of England was King , whether naturalized , or Subjects born , should be no Aliens in England , it were then evident by the Law , That a naturalized Subject of Scotland were no Alien in England ; yet the same Question would then remain as now doth , How he should appear to be naturalized ? because the Chancery could not write to Scotland , as it can to Ireland , to certifie the Act of Naturalizing .

Answ. 1 The fallacy of the Syllogism consists in this . It is true , that a person naturalized in Ireland , is the same with a person born in Ireland , that is by the Law of Ireland . But when you assume , That a person born in Ireland is the same with a person born or naturalized in England , that is not by the Law of Ireland , but by the Law of England . And then the Syllogism will have four terms in it , and conclude nothing .

Answ. 2.3 . But to answer the difference taken , there are many things whereof the Kings Courts sometimes ought to be certified , which cannot be certified by Certiorari , or any other ordinary Writ .

42 E. 3. f. 2. b. An Act of Parliament of Scotland may be evidence as a Sentence of Divorce or Deprivation , and Forraign Laws for raising or abasing Mony or Customes upon accompt between Merchants , but not as Records . In the Case of the Lord Beaumond , 42 E. 3. a Question grew , Whether one born in Ross in Scotland were within the Kings Liegeance ? because part of Scotland then was , and part not , in his Liegeance , the Court knew not how to proceed until Thorpe gave this Rule ; That doubtless the King had a Roll , what parts of Scotland were in his Liegeance , what not , upon the Treaty or Conclusion made , that therefore they must address themselves to the King to have that certified . The like may now happen of Virginia , Surenam , or other places , part of which are in the Kings Liegeance , part not . So the King hath , or may have , Rolls of all naturalized Subjects ; and upon petition to him , where the occasions require it , may cause the matter in his name to be certified . The like may happen upon emergent Questions upon Leagues or Treaties , to which there is no common access , but by the Kings permission .

For illustration , a feign'd Case is as good as a Case in fact . Suppose a Law in Ireland , 5 El. c. 4. f. 957 like that of 5. of the Queen , That no man should set up Shop in Dublin , unless he had serv'd as an Apprentice to the Trade for Seven years ; and suppose a Law in England , That whosoever had served Seven years as an Apprentice in Dublin , might set up Shop in London . If by a particular Act of Parliament in Ireland J. S. be enabled to set up Shop in Dublin , as if he had serv'd an Apprentiship for Seven years , by this fiction he is enabled in Ireland to set up , but not in London , unless he have really served for Seven years , as the Law in England requires .

Considerations .

That an Act of Parliament of Ireland should so operate , as to effect a thing which could not , by the Laws of England , be done without an Act of Parliament in England regularly , seems so strange , that it is suppos'd an Act of Parliament of England , did first impower the doing of it , though it be not extant by an Act of Parliament .

The Argument then is ,

1. A man is naturalized in Ireland , and thereby no Alien in England , which could not lawfully be done without an Act of Parliament in England to impower the doing it .

Which in effect is to say , a thing was done which could not lawfully be done without an Act of Parliament to warrant it , Ergo , it being done , there was an Act of Parliament to warrant it .

2. This Supposition seems rather true , because other things relating to Ireland , and admitted to be Law , could not be but by Act of Parliament in England , yet no such Act is extant ; that is , that a Writ of Error lies in the Kings Bench to reverse a Judgment given in the Kings Bench in Ireland .

3. That this must be by Act of Parliament , not by Common Lew , because such a Writ did not lye in Wales or Calais at Common Law to reverse an Error there .

Still the Argument is no better then before : Some things are of known Law , through many successions of Ages , which could not commence without an Act of Parliament , which is not extant .

Therefore a thing wholly new , not warranted by any Testimony of former time , because it cannot be lawful without an Act of Parliament , must be suppos'd , without other proof , to be lawful by an Act of Parliament .

If the lawfulness of any thing be in question , suppose the Laws of Ireland were made the Laws of England by Act of Parliament here , only Two were material to this Question , 1. That a Postnatus of a Forraign Dominion of the Kings should be no Alien , the Law is so in Ireland . 2. That persons naturalized in England are naturalized for all the Dominions belonging to England ; if the Law were so in Ireland , it follows not , That one naturalized there must be naturalized in England thereby ; for England is not a Dominion belonging to Ireland , but è contrario .

Fitz. Assise pla. 382.18 E. 2 A Writ of Error lies to reverse a Iudgment in any Dominions belonging to England ; Breve Domini Regis non currit in Wallia , is not to be intended of a Writ of Error , but of such Writs as related to Tryals by Juries ; those never did run in Forraign Dominions that most commonly were governed by different Laws . Error of a Judgment in Assize of Gower's Land , in B. R. 18 E. 2.

21. H. 7. f. 31. b. A Writ of Non molestando issued out of the Chancery to the Mayor of Calais , retornable in the Kings Bench ; and by the whole Court agreed , That there are divers Presidents of Writs of Error to reverse Iudgments given in Calais ; though it was Objected , They were governed by the Civil Law .

7. Rep. f. 20. a. Calvins Case . And Sir Edward Coke cites a Case of a Writ directed to the Mayor of Burdeaux , a Town in Gascoigny , and takes the difference between Mandatory Writs , which issued to all the Dominions , and Writs of ordinary remedy , relating to Tryals in the Kingdom .

7 Rep. Calvins Case , f. 18. a. And speaking of Ireland among other things , he saith , That albeit no Reservation were in King John's Charter , yet by Judgment of Law a Writ of Error did lye in the Kings Bench of England , of an Erroneous Judgment in the Kings Bench in Ireland .

A Writ of Error lies not therefore to reverse a Iudgment in Ireland by Special Act of Parliament , for it lies at Common Law to reverse Iudgments in any Inferior Dominions ; and if it did not , Inferior and Provincial Governments , as Ireland is , might make what Laws they pleas'd ; for Iudgments are Laws when not to be revers'd .

Pla. Parl. 21 E. 1. f. 152 , 157. Magdulph appeal'd from the Court and Iudgment of the King of Scots before King Edward the First , Ut Superiori Domino Scotiae .

And by the Case in 2 R. 3. f. 12. all the Iudges there agree , 2 R. 3. f. 12. assembled in the Exchequer Chamber , That a Writ of Error lay to reverse Iudgments in Ireland , and that Ireland was subject as Calais , Gascoigne , and Guyen , who were therefore subject as Ireland : And therefore a Writ of Error would there lye as in Ireland .

Another Objection , subtile enough , is , That if naturalizing Obj. 3 in Ireland , which makes a man as born there , shall not make him likewise as born ( that is no Alien ) in England , That then naturalizing in England should not make a man no Alien in Ireland ( especially without naming Ireland ) and the same may be said , That one denizen'd in England should not be so in Ireland .

Answ. The Inference is not right in form , nor true . The Answer is , The people of England now do , and always did , consist of Native Persons , Naturaliz'd Persons , and Denizen'd Persons ; and no people , of what consistence soever they be , can be Aliens to that they have conquer'd by Arms , or otherwise subjected to themselves , ( for it is a contradiction to be a stranger to that which is a mans own , and against common reason and publique practise ) .

Therefore neither Natives , or Persons Naturaliz'd or denizen'd of England , or their Successors , can ever be Aliens in Ireland , which they conquer'd and subjected . And though this is De Jure Belli & Gentium , observe what is said , and truly , by Sir Edward Coke in Calvin's Case , in pursuance of other things said concerning Ireland .

In the Conquest of a Christian Kingdom , 7. Rep. Calvins C. f. 18. a. as well those that served in Warr at the Conquest , as those that remain'd at home for the Safety and Peace of their Country , and other the Kings Subjects , as well Antenati as Postnati , are capable of Lands in the Kingdom or Country conquer'd , and may maintain any real Action , and have the like Priviledges there as they may have in England .

Another Objection hath been , That if a person naturaliz'd in Obj. 4 Ireland , and so the Kings natural Subject , shall be an Alien here , then if such person commit Treason beyond the Seas , where no local Liegeance is to the King , he cannot be tryed here for Treason , contra ligeantiae suae debitum , 26 H. 8. c. 13. 33 H. 8. c. 23. 35 H. 8. c. 2. Treason by an Irish man in Ireland or elsewhere , may be tryed in England by those Statutes . 33 El. Andersons Rep. f. 262. b. Orurks Case . Calvins Case , f. 23. a. by the Statute of 26 H. 8. or 35 H. 8. or any other Statute to that purpose .

1. To that I answer , That his Tryal must be as it would have been before those Laws made , or as if those stood now repeal'd .

2. His Tryal shall be in such case as the Tryal of a person naturalized in Scotland , after the Union , who is the Kings Subject , but an Alien in England .

Ireland .

Though Ireland have its own Parliament , yet is it not absolute , & sui juris , for if it were , England had no power over it , and it were as free after Conquest and Subjection by England , as before .

That it is a conquer'd Kingdom , is not doubted , but admitted in Calvin's Case several times : And by an Act of Parliament of Ireland , Stat. Hib. 11 , 12. & 13 Jac. c. 5. appears in express words , Whereas in former times , after the Conquest of this Realm by his Majesties most Royal Progenitors , Kings of England , &c.

What things the Parliament of Ireland cannot do .

1. It cannot Alien it self , or any part of it self , from being under the Dominion of England , nor change its Subjection .

2. It cannot make it self not subject to the Laws of , and subordinate to , the Parliament of England .

3. It cannot change the Law of having Judgments there given , revers'd for Error in England , and others might be named .

4. It cannot dispose the Crown of Ireland to the King of Englands second Son , or any other , but to the King of England .

Laws made in the Parliament of England binding Ireland .

A Law concerning the Homage of Parceners , 14 H. 3. called Statutum Hiberniae .

A Statute at Nottingham , 17 E. 1. called Ordinatio pro Statu Hiberniae .

Laws for Ireland made by E. 3. Pat. Rol. 5 E. 3. pars 1. m. 29. pla. Parl. f. 586 per advisamentum Concilii nostri in ultimo Parliamento nostro apud Westm. tento .

An Act that no Arch-bishop , Bishop , or Prior should be chosen , 4 H. 5. c. 6. who were Irish , nor come to Parliaments with Irish Attendants .

The late Acts made in 17 Car. 1. and many others . 17 Car. 1. 25 H. 8. c. 20 , 21.

The Resolution of all the Judges in the Exchequer Chamber , That they were bound by , and subject to the Laws of England , as those of Calais , Gascoign , and Guien , in the Case of the Merchants of Waterford , for shipping Staple Goods for Sluce in Flanders , to which they pleaded the Kings Licence and Dispensation , not pretending freedom from the Statute of 2 H. 6. c. 4. whereupon they were questioned .

Ireland receiv'd the Laws of England by the Charters and Commands of H. 2. King John , H. 3. &c.

I know no Opinion that Ireland receiv'd the Laws of England by Act of Parliament of England , nor had it been to purpose , having also a Parliament of their own , that might change them .

Sir Edward Coke is of Opinion , Cok. Litt. f. 141. b. Patt . 12 H. 3. That they received them by a Parliament of Ireland , in several Books , in the time of King John , and grounds his Opinion upon the words of several Patents of H. 3. which mention King John to have gone into Ireland , and carried with him discretos viros quorum communi Concilio & ad instantiam Hiberniensium , he appointed the Laws of England to be there observed .

Pat. 18 H. 3. Another Patent of 18 H. 3. he there cites , wherein it is said , That King John , de communi omnium de Hibernia consensu , ordained the English Laws to be there observed : And the like in effect in 30 H. 3.

Cok. 4. Inst. f. 349. The same Charters he mentions , but not in the same words , especially that of 12 H. 3. 1. and to the same purpose that King John , by a Parliament in Ireland , established the Laws of England there , in his 4. Institutes .

That which occasioned the mistake were the words , De communi omnium assensu , in the Patents , which he conceiv'd to be a Parliament .

But the Original Act and Command of King John to this purpose , and the Charter of 12 H. 3. at large ( whereof Sir Edward Coke had only short Notes ) will clear how the English Law came into Ireland , and what that Communis assensus meant ; for they were not received by Act of Parliament in those times .

Tempore Regis Johannis .

Pat. 6. Johan . m. 6. n. 17.

Rex dat . potestatem Justic . suis Hiberniae , quod brevia sua currant per totam terram nostram , & potestatem nostram Hiberniae quae ibidem nominantur .

Pat. 6. Johan .

Johannes Dei Gratia , &c. Justiciariis , Baronibus , Militibus , & omnibus fidelibus suis Hiberniae , &c. Sciatis quod dedimus potestatem Justic . nostro Hibern . quod brevia sua currant per totam terram nostram , & potestatem nostram Hiberniae , scilicet breve de Recto de feodo dimidii Militis & infra , & de morte antecessoris similiter de feod . Domini Milit. & infra . Et erit terminus de morte antecessor . post transfretationem H. Regis patris nostri de Hibernia in Angl. Et breve de Nova diss . cujus erit terminus post primam Coronationem apud Cant. Et breve de fugitivis & nativis in quo erit terminus post captionem Dublin . Et breve de divisis faciend . inter duas villas exceptis Baron . Et ideo vobis mandamus , & firmiter praecipimus , quod haec ita fieri & firmiter tener . per totam potestatem nostram Hiberniae faciatis . Teste meipso apud Westmonasteriium secundo die Novembris . 17.

Claus . 7. Johannis .

Rex M. filio Henr. Justitiar . Hiberniae , &c. Sciatis quod Deremunt exposuit nobis ex parte Regis Connaciae , quod idem Rex exigit tenere de nobis tertiam partem terrae de Connacia per C. Marcas per Annum , sibi & haeredibus suis nomine Baroniae .

Pat. 6. Johan . m. 6. n. 17.

Rex , &c. Justic . Baronibus , Militibus , & omnibus fidelibus suis Hibern . &c. Sciatis quod dedimus potestatem Justic . nostro Hiberniae , quod brevia sua currant per totam terram nostram , & potestatem nostram Hiberniae , scilicet breve de Recto de feodo Dimidii Mil. & infra , & de morte Antecessor . & similiter de feod . dimid . Mil. & infra . Et erit terminus de morte Antecessor . post transfretationem Henr. Regis patris nostri de Hibern . in Angl. Et breve de Nova Disseisina cujus erit terminus post primam Coronationem nostram apud Cant. Et breve de Fugit . & Nativis , & ejus erit terminus post captionem Dublin . Et breve de divisis faciend . inter duas villas , except . Baron . Et ideo vobis Mandamus & firmiter praecipimus quod haec ita fier . & firmiter teneri per totam potestatem nostram Hiberniae faciatis . Teste meipso apud Westmonast . ij . die Novembris .

Claus. 12 H. 3. m. 8.

Rex dilecto & fideli suo Richardo de Burgo Justic . suo Hibern . salutem , De legibus & consuetudinibus observandis in Hibernia . Mandamus vobis firmiter Praecipientes quatenus certo die & loco faciatis venir . coram vobis Archiepiscopos , Episcopos , Abbates , Priores , Comites , & Barones , Milites & Libere tenentes & Ballivos singulorum Comitatuum , & coram eis publice legi faciatis Chartam Domini J. Regis patris nostri cui Sigillum suum appensum est , Pat. 6. Joh. n. 17. Dat. apud Westm. 2 die Novemb. quam fieri fecit & jurari à Magnatibus Hibern . de Legibus & consuetudinibus Angl. observandis in Hibernia . Et praecipiatis eis ex parte nostra quod Leges illas & consuetudines in Charta praed. contentas de cetero firmiter teneant & observent . Et hoc idem per singulos comitatus Hibern . clamari faciatis & teneri prohibentes firmiter ex parte nostra , & super forisfacturam nostram ne quis contra hoc mandatum nostrum venire praesumat . Eo excepto quod nec de morte , nec de Catall . Hiberniensium occisorum nihil statuatur ex parte nostra circa quindecim dies à die Sancti Michaelis , Anno Regni nostri xij . super quo respectum dedimus magnatibus nostris Hiberniae usque ad terminum praed. Teste meipso apud Westmonast. 8. die Maii , Anno xij .

Patentes 30 H. 3. m. 1.

Quia pro communi utilitate terrae Hibern . & unitate terrarum Regis , Rex vult & de communi Consilio Regis provisum est , quod omnes Leges & consuetudines quae in Regno Angliae tenentur , in Hibern . teneantur & eadem terra eisdem Legibus subjaceat , & per easdem regatur , sicut Dominus Johannes Rex cum ultimo esset in Hibernia Statuit & fieri mandavit . Quia etiam Rex vult quod omnia brevia de Communi jure quae currunt in Angl. similiter currant Hibernia sub novo Sigillo Regis .

Mandatum est Archiepiscopis , &c. quod pro pace & tranquilitate ejusdem terrae per easdem Leges eos regi , & deduci permittant , & eas in omnibus sequantur . In cujus , &c. T. R. apud Wadestocks ix die Septembris .

Out of the Close Rolls of King Henry the Third his Time .

Clause 1 H. 3. dorso . 14.

The Kings thanks to G. de Mariscis , Justice of Ireland . The King signifies that himself , and other his Lieges of Ireland , should enjoy the Liberties which he had granted to his Lieges of England , and that he will grant and confirm the same to them .

Clause 3. H. 3. m. 8. part 2.

The King writes singly to Nicholas , Son of Leonard Steward of Meth , and to Nicholas de Verdenz , and to Walter Purcell Steward of Lagenia , and to Thomas the son of Adam , and to the King of Connage , and to Richard de Burgh , and to J. Saint John Treasurer , and to the other Barons of the Exchequer of Dublin , That they be intendant and answerable to H. Lord Arch-bishop of Dublin , as to the Lord the King's Keeper and Bailiff of the Kingdome of Ireland , as the King had writ concerning the same matter to G. de Mariscis , Justice of Ireland .

Clause 5. H. 3. m. 14.

The King writes to his Justice of Ireland , That whereas there is but a single Justice itinerant in Ireland , which is said to be dissonant from the more approved custome in England , for Reasons there specified , two more Justices should be associated to him , the one a Knight , the other a Clerk , and to make their Circuits together , according to the Custome of the Kingdom of England . Witness , &c.

The Close Roll. 5 H. 3. m. 6. Dorso .

The King makes a Recital , That though he had covenanted with Geoffrey de Mariscis , That all Fines , and other Profits of Ireland , should be paid unto the Treasure , and to other Bailiffs of the Kings Exchequer of Dublin , yet he receiv'd all in his own Chamber , and therefore is removed by the King from his Office : Whereupon the King , by advise of his Council of England , establisheth ▪ that H. Arch-bishop of Ireland be Keeper of that Land , till further order . And writes to Thomas , the son of Anthony , to be answerable and intendant to him . After the same manner it is written to sundry Irish Kings and Nobles there specially nominated .

Clause 7. H. 3. m. 9.

The King writes to the Arch-bishop of Dublin , his Justice of Ireland , to reverse a Judgment there given , in a Case concerning Lands in Dalkera , between Geoffrey de Mariscis , and Eve his wife Plaintiffs , and Reignald Talbott Tenant . By the Record of the same Plea returned into England , the Judgment is reversed upon these two Errors . The first , because upon Reignald's shewing the Charter of King John , the King's Father , concerning the same Land , in regard thereof desiring peace , it was denyed him .

The second , Because the Seisin was adjudged to the said Geoffrey and Eve , because Reynald calling us to warranty , had us not to warranty at the day set him by the Court , which was a thing impossible for either Geoffrey , or the Court themselves to do , our Court not being above us to summon us , or compel us against our will . Therefore the King writes to the Justice of Ireland to re-seise Reynald , because he was disseised by Erroneous Judgment .

Clause 28. H. 3. m. 7.

The King writes to M. Donenald , King of Tirchonill , to aid him against the King of Scots , Witness , &c. The like Letters to other Kings and Nobles of Ireland .

Clause 40. E. 3. m. 12. Dorso .

The King takes notice of an illegal proceeding to Judgment in Ireland , Ordered to send the Record and Process into England .

It was objected by one of my Brothers , That Ireland received not the Laws of England by Act of Parliament of England , but at the Common Law by King John's Charter . If his meaning be that the Fact was so , I agree it ; but if he mean they could not receive them by Act of Parliament of England ( as my Brother Maynard did conjecturally inferr for his purpose ) then I deny my Brothers Assertion ; for doubtless they might have received them by Act of Parliament . And I must clear my Brother Maynard from any mention of an Union , as was discoursed of England and Ireland : Nor was it at all to his purpose .

If any Union , other than that of a Provincial Government under England had been , Ireland had made no Laws more than Wales ; but England had made them for Ireland , as it doth for Wales .

As for the Judgment ,

Obj. One of my Brothers made a Question , Whether George Ramsey , the younger Brother , inheriting John Earl of Holdernes , before the naturalization of Nicholas , Whether Nicholas , as elder Brother , being naturalized , should have it from him ? Doubtless he should , if his Naturalizing were good . He saith , the Plaintiff cannot have Iudgment , because a third person , by this Verdict , hath the Title .

Answ. If a Title appear for the King , the Court , ex Officio , ought to give Iudgment for him , though no party . But if a man have a prior Possession , and another enters upon him without Title , I conceive the priority of Possession is a good Title against such an Entry equally when a Title appears for a third , that is no party , as if no Title appear'd for a third .

But who is this third party ? For any thing appears in the Verdict , George Ramsey died before the Earl . 2. It appears not that his Son John , or the Defendant , his Grand-child , were born within the Kings Liegeance . Patient appears to be born at Kingston , and so the Daughters of Robert by the Verdict .

The Acts of Ireland except all Land whereof Office was found before the Act to entitle the King , but that is in Ireland , for the Act extends not to England , If Nicholas have Title , it is by the Law of England , as a consequent of Naturalization .

So it may be for the Act of 7 Jac. cap. 2. he that is Naturalized in England , since the Act , must receive the Sacrament ; but if no Alien , by consequent then he must no more receive the Sacrament than a Postnatus of Scotland .

Obj. Ireland is a distinct Kingdom from England , and therefore cannot make any Law Obligative to England .

Answ. That is no adequate Reason , for by that Reason England being a distinct Kingdom , should make no Law to bind Ireland , which is not so : England can naturalize , if it please , nominally a person in Ireland , and not in England . But he recover'd by saying , That Ireland was subordinate to England , and therefore could not make a Law Obligatory to England , True ; for every Law is coactive , and it is a contradiction that the Inferior , which is civilly the lesser power , should compel the Superior , which is greater power .

Secondly , He said England and Ireland were two distinct Kingdoms , and no otherwise united than because they had one Soveraign . Had this been said of Scotland and England , it had been right , for they are both absolute Kingdoms , and each of them Sui Juris .

But Ireland far otherwise ; For it is a Dominion belonging to the Crown of England , and follows that it cannot be separate from it , but by Act of Parliament of England , no more than Wales , Gernsey , Jersey , Barwick , the English Plantations , all which are Dominions belonging to the Realm of England , though not within the Territorial Dominion or Realm of England , but follow it , and are a part of its Royalty .

Thirdly , That distinct Kingdoms cannot be united , but by mutual Acts of Parliament . True ; if they be Kingdoms sui Juris , and independent upon each other ; as England and Scotland cannot be united but by reciprocal Acts of Parliament . So upon the Peace made after Edward the Third's war with France , Gascoign , Guien , Calais were united and annext to the Crown of England by the Parliaments of both Nations , which is a secret piece of Story , and mistaken by Sir Edward Coke , who took it as a part of the Conquest of France , and by no other Title .

But Wales , after the Conquest of it by Edward the First , was annext to England , Jure Proprietatis , 12 Ed. 1. by the Statute of Ruthland only , and after more really by 27 H. 8. & 34. but at first received Laws from England , as Ireland did ; but not proceeded by Writs out of the English Chancery , but had a Chancery of his own , as Ireland hath ; was not bound by the Laws of England , unnamed until 27 H. 8. no more than Ireland now is .

Ireland in nothing differs from it , but in having a Parliament , Gratiâ Regis , subject to the Parliament of England , it might have had so , if the King pleas'd ; but it was annext to England . None doubts Ireland , as conquer'd , as it ; and as much subject to the Parliament of England , if it please .

The Court was divided , viz. The Chief Justice and Tyrrell for the Plaintiff . Wylde and Archer for the Defendant .

Trin. 25 Car. II. C. B. Rot. 1488. Thomas Hill and Sarah his Wife are Plaintiffs . Thomas Good Surrogat of Sir Timothy Baldwyn Knight , Doctor of Laws , and Official of the Reverend Father in God , Herbert Bishop of Hereford is Defendant , In a Prohibition .

THE Plaintiffs , who prosecute as well for the King , as themselves , set forth , That all Pleas and Civil Transactions , and the Exposition and Construction of all Statutes and all Penalties for the breach of them pertain only to the King and his Crown .

Then set forth the time of making the Act of 32 H. 8. c. 38. and the Act it self at large , and that thereby it was enacted , That from the time limited by the Act , no Reservation or Prohibition ( Gods Law excepted ) should trouble or impeach any marriage without the Levitical Degrees . And that no person shall be admitted after the time limited by the Act , in any the Spiritual Courts within this Kingdom , to any Process , Plea , or Allegation contrary to the Act.

They set forth , That after the making of the said Act , and the time thereby limited , the Plaintiffs being lawful persons to contract marriage , and not prohibited by Gods Law , and being persons without the Levitical Degrees , the Twentieth day of September , in the Four and twentieth year of the King , at Lemster in the County of Hereford , contracted matrimony in the face of the Church , and the same consummated and solemninized , with carnal knowledge and fruit of Children , at Lemster aforesaid .

That by reason thereof the said Marriage is good and lawful , and ought not to be null'd in Court Christian .

That notwithstanding , the Defendant , praemissorum non ignarus , fraudulently intending to grieve and oppress the Plaintiffs , unduly draws them into question before him in the Court Christian for an unlawful marriage , as made within the Degrees prohibited by Gods Laws , and there falso , caute & subdole libelling , and supposing , that whereas by the Laws and Canons Ecclesiastical of this Kingdom , it is ordained , That none should contract matrimony within the Degrees prohibited by Gods Law , and expressed in a certain Table set forth by Publique Authority , Anno 1563. and that all marriages , so contracted , should be esteemed incestuous and unlawful , and therefore should be dissolved , as void , from the beginning .

And also , That whereas by a certain Act of Parliament made and published in the Eight and twentieth year of King Henry the Eighth , It is enacted , That no person or persons , subject or residing within the Realm of England , or within the Kings Dominions , should marry within the Degrees recited in the said Act , upon any pretence whatsoever : And

That whereas the said Thomas Hill had taken to wife one Elizabeth Clark , and for several years cohabited with her , as man and wife , and had carnal kdowledge of her .

He , the said Thomas , notwithstanding , after the death of the said Elizabeth , had married with , and took to wife the said Sarah , being the natural and lawful Sister of the said Elizabeth , against the form of the said last mentioned Statute , and them the said Thomas and Sarah had caus'd unjustly to appear before him in Court Christian , to Answer touching the Premisses , although the said marriage be lawful , and according to Gods Law , and without the Levitical Degrees . And

That although the Plaintiffs have , for their discharge in the said Court Christian , pleaded the said first recited Act , yet the Defendant refuseth to admit the same , but proceeds against them , as for an incestuous marriage , against the form of the Statute .

And that notwithstanding he was served with the Kings Writ of Prohibition to desist in that behalf , in contempt of the King , and to the Plaintiffs damage of One hundred pounds .

The Defendant denies any prosecution of the Plaintiffs , contrary to the Kings Writ of Prohibition , and thereupon Issue is joyn'd , and demurrs upon the matter of the Declaration , and prays a Consultation , and the Plaintiffs joyn in Demurrer .

In the Argument upon Harrisons Case , I said , and still say , That if granting Prohibitions to the Spiritual Courts in Cases of Matrimony , were res integra now , I saw no reason why we should grant them in any Case . The matter being wholly of Ecclesiastick Conizance , my Reasons were and are

1. Because in all times some marriages were lawful , and others prohibited by Divine and Ecclesiastick Laws or Canons , yet the Temporal Courts could not prohibit the impeaching of any marriage , how lawful soever , nor take notice of it .

2. If by Act of Parliament anciently , all marriages not prohibited by Gods Law , or Canons of the Church , had been declared lawful , the Temporal Courts thereby had no power to prohibit the questioning of any marriage more than before , for it had said no more than what the Law was , and did say before such Act.

So had it been enacted , That all marriages should be lawful , not prohibited by the Levitical Law , the Church had retain'd the judging which were against the Levitical Law , as they did when the unlawfulness was not confin'd only to the Levitical Law .

And the Question now concerning what are the Levitical Degrees ? ( whereof we assume the Conizance ) is but the same as the question would be concerning what marriages were prohibited in the Eighteenth of Leviticus .

For though such Acts of Parliaments had been , yet they had given no new Iurisdiction or Conizance in matrimonial matters to the Temporal Courts , but had been only directory to the Courts which had the Conizance ; and if any Iudgment had been given amiss in them , it was to be rectified by appeal , according to those Statutes , or by Commissions of Delegacy .

But I then said , That since 32 H. 8. many Prohibitions have been granted to the Spiritual Courts concerning marriages without the Levitical Degrees in several Ages . And that therefore in a Case concerning the Extent of the Spiritual and Temporal Jurisdiction , and after so many Parliaments wherein no complaint hath been made , or certainly no redress given , it cannot be expected we should , against so many judicial Presidents , take upon us to alter the Law so long practiz'd , specially after Harisons Case , in which all the Iudges were advised with .

Therefore taking it for granted , That the Temporal Courts can prohibit the impeaching of marriages without the Levitical Degrees , by the Statute of 32 H. 8. ( for before no Prohibition was ever granted in that kind : The Question is ,

Whether the marriage of the Husband with his Wives Sister , after the Wives death , be such a marriage as by the Act of 32. the Temporal Courts may prohibit the impeaching or drawing it into question in the Spiritual Courts , in order to a Divorce or separation of the parties ? And I conceive they cannot for these Reasons ,

1. I affirm this marriage to be expresly prohibited within the Eighteenth of Leviticus , and then it must be within the Levitical Degrees .

2. If it were not so prohibited , yet it is not a marriage without the Levitical Degrees , but within them , and therefore no Prohibition will lye for impeaching it ; for marriages not to be impeached must be without the Degrees , and for that some marriages within the Degrees may be lawful .

3. That if this marriage be without the Levitical Degrees , yet it is a marriage prohibited by Gods Law , and therefore to be impeached , notwithstanding the Statute of 32. whose words are , No marriage ( Gods Law excepted ) shall be impeached without the Levitical Degrees .

As to the first ,

1. When a Law is given to any people , it is necessary that it be conceiv'd and publish'd in words which may be understood , for without that the Law cannot be obey'd ; and a Law that cannot be obey'd , is no Law .

2. The meaning of words in any Law are to be known , either from their use and signification , according to common acceptation before the Law made , or from some Law or Institution declaring their signification .

3. The Interdicts of marriage and carnal knowledge in the Levitical Law were directed formally to the men , not to the women , who are interdicted but by consequent ; for marriage and carnal knowledge being a reciprocal Act , and impossible to be done by one party , it follows that the woman being interdicted to the man , the man must also consequently be interdicted to the woman , for a man cannot marry a woman , and she not marry him .

4. The Reasons why the Interdict is ever formally to the man , are , 1. Because in the prohibited Act of uncovering the nakedness , the man properly is the primary Agent , and the woman but patient and consenting ; for a woman can no more uncover the mans nakedness naturally , than she can ravish him . 2. The man , after marriage , hath the deduction of the woman , ad Domum & Thalamum , and all the civil power over her , and not she over him ; but the womans consent to have her nakedness uncovered is forbid , and makes her consenting an equal offence with the mans ; for by the Twentieth of Leviticus the man and woman offending in that kind were to dye , which had not been but that both were Transgressors .

5. The first and most express Law prohibiting the carnal knowledge of certain persons in the Eighteenth Chapter of Leviticus , Vers. 6. is , — None of you shall approach to any that is near of kin to him , to uncover their nakedness .

6. Near of kin are words of relation , and have no positive certainty , nor are intelligible , but relatively to remoter kin ; for all the posterity of Adam being of kin in some degree ;

A person of kin to a man within two Degrees , is nearer of kin than one within four Degrees ; and one within four Degrees nearer than one within eight Degrees ; and so interminately .

Whence it follows , That the Law before cited , — Not to approach to any near of kin , to uncover their nakedness , had been useless , without knowing the persons accepted and accounted to be the near of kin .

Those persons were known to the Jews to whom the Law was given by the Law it self declaring them precisely .

Lev. 21.1 , 2. The words are — There shall none be defiled for the dead among his people , but for his kin that is near unto him ; that is , for his mother , and for his father , and for his son , and for his daughter , and for his brother , and for his sister . And without this declaring Law , it is evident that these persons are a mans next of kin , in the ascending and descending , and in the collateral line . And they which are next of kin to him must be a mans near kin necessarily , although others more remote may be also denominated a mans near kin by custome of speech .

Vpon this foundation all the Prohibitions concerning incestuous marriages , are grounded by the Eighteenth Chapter of Leviticus .

The first and most general Levitical prohibition in that kind , is in the same words as this Law , prohibiting being defiled for the dead , but for a mans kin , that is near unto him .

None of you shall approach to any that is near of kin to him , to uncover their nakedness . And after Instances are given of the persons comprehended under those words , Near of kin , as is done in the other Law concerning the dead .

As in the father , the brother , the son , whose nakedness appears to consist and terminate in their Wives : For a man cannot otherwise uncover the nakedness of a man but in his wife , which is the mans nakedness , as appears in the Text ; and those are three of the persons comprehended under the words near of kin .

The nakedness of thy father shalt thou not uncover , Lev. 18. v. 7. v. 8. which is explained as before in the next verse , — The nakedness of thy Fathers wise shalt thou not uncover : It is thy Fathers nakedness ,

Thou shalt not uncover the nakedness of thy daughter in law , v. 15. she is thy sons wife .

The nakedness of thy brother wife shalt thou not uncover ; v. 16. it is thy brothers nakedness .

Which is the same as to say , Thy father , thy brother , thy son , are thy near of kin , therefore thou shalt not uncover their nakedness by uncovering the nakedness of their wives .

Then as to the nakedness of the females terminating in their own persons .

The nakedness of thy mother shall thou not uncover , v. 7. v. 9. she is thy mother . — The nakedness of thy sister , the daughter of thy father , or the daughter of thy mother , thou shall not uncover : which is to say , Thy mother and sister are thy near of kin , therefore shalt thou not uncover their nakedness . So express Instances are made in five of the six sorts of persons declared to be near of kin .

But as Instance is made in the daughter , though she be as immediately as the son near of kin to the father , and eminently comprehended under that Law of not approaching to a mans near of kin , and by all both reason and exposition within it ; which made Sir Edward Coke , Cok. Inst. 2. f. 683. by mistake in his Table of Prohibited Marriages in his Comment upon the Statute of 32 H. 8. to set down the daughter as nominally prohibited by the Eighteenth of Leviticus , and then in the Margent to say , those Degrees are truly set down in the Statutes of 25 & 28 H. 8. whereas the daughter is mentioned in neither of them , nor in the Eighteenth of Leviticus .

The use I make of this , is to shew , That the extent of the prohibiting Law is not to be measured from the persons instanced in Leviticus ; for should it be so estimated , the Law would be narrower than it self , the Instances comprehending only five prohibited persons : But the Clause of not approaching to a mans near of kin comprehending six , and so the Law would be inconsistent with it self .

The second General Law .

Besides those six Degrees of persons before mentioned , who are past question a mans next of kin , and consequently his near of kin , and declared by the Levitical Law so to be , there are other degrees of kin prohibited , which are also undoubtedly a mans next of kin after the former six kinds , and are denoted also in Leviticus as a mans near kin ; and who are instanc'd in as , and indeed are , the next , and so the near of kin to a mans near of kin , as before , and prohibited for that reason , beyond which kindred no prohibition is found in Leviticus .

Whence a seond general Law is deduced from Leviticus the Eighteenth , That no man shall discover their nakedness who are the near of kin to his near of kin , or of them who are propinqui propinquis suis , which they draw from these words ,

Lev. 18. v. 12. Thou shalt not uncover the nakedness of thy fathers sister , she is thy fathers near kinswoman . v. 13. v. 14. v. 10. Nor of thy mothers sister , for she is thy mothers near kinswoman . Nor of thy fathers brother , which must be for the same reason , he being his fathers near kinsman . Nor of thy sons daughter , or of thy daughters daughter , for the like reason , they being near of kin to his son and daughter , as his son and daughter are to him .

All which are instanced in , in Leviticus , as prohibited for that reason , and many others are of the same relation not instanced in , as a mans mothers brother , his fathers father , his mothers father , his fathers mother , his mothers mother , his brothers daughter , his sisters daughter , and others who are equally near of kin to his near of kin , as his immediate near of kin are to himself , and were never doubted to be prohibited within the Levitical Degrees by any .

Whence also it appears , That the Instances given in this second Rule drawn out of Leviticus , are not the Law it self , nor comprehend the extent of it , but are examples only of another , or second degree of kindred , comprehended under the general Law of not approaching to those near of kin , and which are particularly specified by the Karait Rabbies .

That all persons near of kin strictly , to any the six persons first interdicted , are likewise interdicted by that Law , None shall approach to any near of kin to him to uncover their nakedness , within the meaning of the words , near of kin , is further proved by these Reasons :

1. When the Law hath denominated the Relations to be accompted near of kin ; ( as is done in this case ) none comprised under that denomination can be more or less near of kin than others so denominated . As when the Law denominates a man an Attorney , Serjeant , or the like , no Attorney is more or less an Attorney , and no Serjeant more or less a Serjeant , than any other Attorney or Serjeant . And so is it in all orders of men of the same denomination .

Therefore it appearing by the Law to be the reason of interdicting a person , because near of kin to a mans father or mother , and none of those six Relations being more or less near of kin than the other , the nearness of kin to any of them is as much reason of interdicting , as the nearness of kin to the father or mother , or any other of them instanced in .

Another reason is , because the Law forbidding the approach to any near of kin , forbids in that expression the near of kin to any of the six persons strictly denominated near of kin , as well as those six persons themselves : For in Leviticus a man is interdicted his wives daughter , and his wives sons daughter , and her daughters daughter , because they are his wives near kinswomen , whereas her daughter only is the near kinswoman to the wife in the strictest sense , and the other but near of kin to her near of kin , that is , to her daughter ; yet all of them are said to be the wives near kinswomen . So , Thou shalt not uncover the nakedness of thy mothers or fathers sister , Lev. 20.19 . for he uncovereth his near kin : before they were said to be the near kin to the mother and father , and here to be the sons near kin .

The third General Law .

The third prohibiting Rule drawn out of Leviticus , is , A man is prohibited to take a wife , and any other near of kin to her , which is grounded upon these words , Lev. 18.17 . Thou shalt not uncover the nakedness of a woman and her daughter ; neither shalt thou take her sons daughter , or her daughters daughter , to uncover their nakedness , for they are her near kinswomen .

None of the wives near kinswomen are here clearly instanced in but her daughter , not her mother , not her sister , who are equally her near kinswomen , and comprised in this prohibition , and in the reason of it , as well as the daughter : For the reason of prohibiting these persons instanced in , being , 1. Because they are the wives near kinswoman , it is evident that the wives mother and the wives sister are by the same reason prohibited , for they are her near kinswomen in the strictest sense of nearness .

His wives daughter is literally forbidden the husband , and so is ( but not so obviously ) his wives mother . For example ,

If he marry the mother , the words forbid him her daughter , and if he marry the daughter , he is prohibited the mother , else he would marry a woman and her daughter , which the words forbid , and accordingly by the Karaits Doctrine , grounded upon clear exposition , as I conceive of the Levitical prohibitions , the husband is forbidden , as near of kin to his wife , Her mother , Her daughter , Her sister .

And as the mother and daughter of his wife are expresly forbidden him in that Seventeenth verse , so is his wives sister in the next following Verse ; Neither shalt thou take a wife to her sister to vex her , during her life . They add also , as prohibited the husband by this Rule , His wives fathers wife , Her brothers wife , Her sons wife .

From the same Verse they deduce a fourth Rule , For these Rules vid. Seldens ux . Ebraica , c. 4 , 5. That the Husband is prohibited the near of kin to his wives near of kin , as before in the prohibitions of consanguinity ; for he is literally prohibited the daughter of his wives son , and her daughters daughter , and by necessary inference also his wives grand-mother by father and mother , who are the near of kin to his wives daughter and her mother , who are his wives near of kin , which they thus strongly prove .

A man is forbidden to take a woman and her sons daughter , or her daughters daughter .

Therefore if a man marry his wives grand-mother , he hath taken a woman and her sons daughter , or her daughters daughter , which is expresly forbid .

And in these are express instances given of prohibiting the near of kin to his wives near of kin , and are also termed his wives near kinswomen , as well as those which strictly are so .

By the same reason all others near of kin to his wives father , brother , or sister , are prohibited the husband , as well as those near of kin to her mother , her daughter , or son , and are equally in terminis within the words , his wives near kinswomen , of which sort they number Sixteen , the same with those prohibited in the second Rule for Consanguinity .

And it is observable , That the Parochial Matrimonial Table , in use in England , agrees in its prohibitions of marriages , which are Thirty in number , for Consanguinity and Affinity , with the Levitical Prohibitions , according to the Doctrine of the Karait Rabbins in the four former Rules .

But the Karaits prohibit Eleven Degrees of Affinity ( much of the same nature ) more than the Table doth in their two last Rules ; that is , The wives fathers wife , Her brothers wife , Her sons wife , Her Grand-fathers wife by the father Her Grand-fathers wife by the mother , Her fathers brothers wife , Her mothers brothers wife Her brothers sons wife , Her sisters sons wife , Her sons sons wife , Her daughters sons wife .

And they have Seven other Prohibitions by a fifth Rule , whereof our Table receives none .

And this harmony between our Matrimonial Table and the Karaits exposition of the Levitical Degrees , is more perhaps than hath been observed , to justifie the persons prohibited by the Table , for as many as they are , to be the same levitically prohibited .

To this may be added , That by our Vulgar Translation , and also by the Septuagint ( as I conceive ) the words , Neither shalt thou take a wife to her sister to vex her , Lev. 18.18 . to uncover her nakedness , besides the other , during her life , may be understood to prohibit the husband his wives sister absolutely , as well as to prohibit her during his wives life ; For the words ( during her life ) may relate either to the words , Thou shalt not take a wife to her sister , viz. during her life , and in that sense the meaning will be , That a man is not prohibited to marry his wives sister absolutely , Seld. de Jure naturali & Gentium , l. 5. c. 10. f. 591. but only until his wives death , and is consonant to the exposition of that place in Leviticus , by the Scribes and Talmudical Rabbies .

Or the words may be read thus , Thou shalt not take a wife to her sister to vex her , during her life , or as long as she lives , that is , to cause jealousie and vexation to thy wife , during the whole time of her life ; which sense and reading squares with the Doctrine of the Karaits upon Leviticus : and I think may well be defended by the Septuagint Translation .

The next thing I shall insist on , is , The Authority of the Canons of the Apostles so stiled ; Whether they were re vera the Apostles , or not , doubtless they are of great , both Antiquity and Authority .

Of those Canons the Eighteenth hath these words , as they are published in the Canon Law .

Can. Apost. 18 Qui duas sorores duxit aut consobrinam clericus esse non potest .

1. This Canon cannot be understood of having two Sisters for wives at the same time , for the Christians never admitted two wives , or more , at one time ; and therefore interdicting of two sisters , qua sisters , at a time , was to no purpose .

2. The other part of the Canon , which is aut consobrinam , that is , his brother or sisters daughter taken to wife , shews the Canon respected only the nearness of Relation .

That clear'd , I reason thus , either marrying the wives sister , after the wives death , was lawful when the Canon was made , or unlawful , for it relates to an offence done , qui duxit , not to a new made offence . If lawful , why then was any punishment ( namely exclusion from the Clergy ) inflicted for a lawful Act ? If it were unlawful in the Apostles time , how is it become now lawful ?

It is true , as the Learned Grotius observes on this Subject , Grot. de Jure Belli . l. 2. c. 5. Sect. 14. A marriage may be unlawful in many respects , and yet the marriage stand good , and the vinculum matrimonii not dissolv'd , but punishable some other ways , if made unlawful by Humane Authority .

But this Precept of the Apostles cannot be said of Humane Authority only , nor a new Institution , as is already noted ; nor was there any Divorce for Incest among the Iews , as is noted after , but was always among the Christians in Christian States .

2. In that time the Apostles and Primitive Christian Church had no Jurisdiction or Power of Legal Divorce , Separation , and Bastarding the Issue , how incestuous soever the marriage were , for those were Acts of Jurisdiction and Coercion , and could not be done but by the power of Laws , to which the parties were locally subject . But the Apostles and Church power was only to forbid them communion with the rest of their brethren Christians , and to deny the Offenders such things as were in their power , namely , to be of the Clergy , as was done by this Canon .

This appears by St. Paul , 1 Cor. 5. 1 Cor. 5 1. It is reported there is fornication among you , and such fornication as is not so much as named among the Gentiles , That one should have his Fathers wife ; which was an Incest of the highest degree , although denoted by the word 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 .

Yet St. Paul could do no more but direct the Corinthians from Communion with that man , and to put away from among them that wicked person : He could neither null his marriage , nor illegitimate his Issue , if he had any , nor put the Offender to death , according to the Mosaical Law , for these are effects of the Civil Power ; and among the Hebrews no Divorce was for Incest , but the marriage was void , and the Incest punisht , Seld. Ux. Ebraica , l. 1. c. 12. f. 87. 89. as in persons unmarried .

The next thing observable from this Canon , is , That the Makers were of opinion that the marriage with the Consobrina , or brother or sisters daughter , was equally unlawful as marriage with two sisters , and the punishment by the Canon is equal .

Whence it follows , That the Makers of the Canon , Apostles or others , did in those two Cases follow the exposition of the Karaits , and not of the Talmudists : The Karaits holding both marriages unlawful , but the Talmudists holding neither unlawful by Moses's Law .

But by what Law Divine the primitive and succeeding Christian Churches conceived themselves obliged ( as generally they did , and do ) in the matter of marriage , to observe the Levitical prohibitions strictly and indispensably , is a question of great difficulty : But surely they took their measures of those Prohibitions from the Doctrine of the Karaits , more than from the Scribes and Pharisees , though the last were of more Authority in the Hebrews Commonwealth , as appears by that of Matthew cap. 23. v. 2 , 3. The Scribes and Pharisees sit in Moses his Seat , all therefore they bid you observe , that observe and do . Nor was it without reason done , for such of those degrees which are not particularly specified in the Eighteenth of Leviticus ( for in those the Scribes and Karaits agree ) but are deduc'd by Argument to be prohibited . Seld. Uxor Ebraica , l. 1. c. 3 , 4. Uxor Ebraica , l. 1. c. 1 , 2. The Karaits conclude in their Prohibitions of Marriage from the Scripture it self , but the Scribes in theirs from the Tradition and Sanctions of the Elders , which Traditions the Christians often heeded not , as introduced frequently against Gods Law , as appears in the Tradition of Corban against Gods Precept of honouring the Father and Mother , Mark 7.11 . Mat. 15.3 , 4 , 5 , 6. most signally .

Nor is it strange that the Opinions of private men prevail above the publick in process of time . So happened it in Luther , Calvin , and others , in the beginning of the Reformation , whose Opinions in time grew more authentique , both in Doctrine and Discipline here , and in many other States , than the Doctrine of the Church of Rome , which was the publique before in both kinds : Many like Examples might be given , ancient and modern , which I purposely omit .

By a Canon of another very ancient Provincial Council , called Concilium Eliberinum , under Pope Silvester , Three hundred and fourteen years after Christ , and before the Council of Nice , by the Sixteenth Canon of that Council — Si quis post obitum Uxoris suae sororem ejus duxerit per quinquennium à communione abstineat . Grot. l. 2. c. 5. p. 256. Sect. 14.

By this so ancient Council , marrying the wives sister was accompted unlawful but for the same reasons as before ; they could punish it no otherwise than by wayes in the power of the Church , which was to hinder the Offender from Communion for five years .

And in this Council they followed the exposition of the Karaits also concerning marriages , and not of the Talmudists ; nor is it rational to conceive , that Canons then forbidding any sort of marriage , proceeded from an Arbitrary power , assumed by those who made them , as Law makers , to which they could no way pretend , but because it was unlawful by the Principles and Persuasion of all Christian Believers .

Vide for these Rules Selden's Uxor Ebraica , l. 1. cap. 4 , 5.

By the first Rule is interdicted to a man his near of Kin By the Matrimonial Table of England interdicted The fathers wife The fathers wife or Step-mother f. 11 The mother The mother f. 10 The brothers wife The brothers wife f. 18 The sister The sister f. 16 The sons wife The sons wife f. 15 The daughter The daughter f. 13

BythesecondRuleisinterdictedtoamanthe near of kin tohis near of kin . The Grand-fathers wife by the father The Grand fathers wife by the father f. 2 The Grand-fathers wife by the Mother The Grand-fathers wife by the mother f. 2 The Grand-mother by the Father The Grand-mother by the father f. 1 The Grand-mother by the mother The Grand-mother by the mother f. 1 The fathers brothers wife The fathers brothers wife f. 6 The fathers sister The fathers sister f. 4 The mothers brothers wife The mothers brothers wife f. 7 The mothers sister The mothers sister f. 5 The brothers sons wife The brothers sons wife f. 27 The brothers daughter The brothers daughter f. 25 The sisters sons wife The sisters sons wife f. 28 The sisters daughter The sisters daughter f. 26 The sons sons wife The sons sons wife f. 21 The sons daughter The sons daughter f. 19 The daughters sons wife The daughters sons wife f. 22 The daughters daughter The daughters daughter f. 20

BythethirdRuleisinterdictedtothehusbandhis wives near of kin . From a woman and her fathers wife Omitted . From a woman and her mother From a woman and her mother f. 12 From a woman and her Brothers wife Omitted . From a woman and her sister A woman and her sister f. 17 From a woman and her sons wife Omitted . From a woman and her daughter A woman and her daughter f. 14

BythefourthRuleisinterdictedtoamanthe near of Kin tohis wives near of Kin. A woman and her grand-mother by the mother A woman and her grand-mother by the mother f. 3 A woman and her grand-mother by the father A woman and her grand-mother by the father f. 3 A woman and her fathers brothers wife O. A woman and her fathers brothers wife f. 6 A woman and her mothers brothers wife O. A woman and her mothers brothers wife A woman and her brothers sons wife Omitted . A woman and her brothers daughter A woman and her brothers daughter f. 29 A woman and her sisters daughter A woman and her sisters daughter f. 30 A woman and her sisters sons wife Omitted . A woman and her sons sons wife Omitted . A woman and her sons daughter A woman and her sons daughter f. 23 A woman and her daughters sons wife Omitted . A woman and her daughters daughter A woman and her daughters daughter f. 24 A woman and her fathers sister A woman and her fathers sister A woman and her mothers sister A woman and her mothers sister A woman and her grand-fathers wife by the father Omitted . A woman and her grand-fathers wife by the mother Omitted .

These last four Degrees are not mentioned under the fourth Rule by Mr. Selden , but referred to by the words , & reliquis quae supersunt ex iis quae in regula secunda propinquorum sunt propinquae ; but the two first of these last four are forbid in our Matrimonial Table , not the two last , as several others of the same kind ; for the husband is not forbid by the Table the wives of his wives Grand-fathers , nor her Fathers , nor Brothers wife , nor sons wife , nor her fathers brothers , nor mothers brothers wife , nor her brothers sons wife , nor sisters sons wife , nor her sons sons wife , nor her daughters sons wife .

By the fifth Rule is interdicted that two near of Kin marry two other near of Kin. A man and his father from a woman and her daughter O. A man and his father from a woman and her sons wife O. A man and his father from a woman and her brothers wife O. A man and his father from a woman and her sister O. A man and his brother from a woman and her brothers wife O. A man and his brother from a woman and her daughter O. A man and his brother from a woman and her sons wife O.

None of those comprised in this fifth Rule are prohibited by the Matrimonial Table , but all the persons interdicted by the Doctrine of the Karaits or Scripture Rabbies , are also interdicted by the Matrimonial Table of England , excepting eleven persons before mentioned , not interdicted to the wives husband by the Table , who are interdicted by the Karaits enumeration , but in this paper are marked with Ciphers , as to the Matrimonial Table , in the first four Rules of the Karaits Doctrine . So as all the persons prohibited in those first four Rules of the Karaits , being in number Four and forty , are also prohibited by the Matrimonial Table , which , together with Eleven persons ciphered in the Table , as excepted , make up the like number of Four and forty , from which if you deduct Eleven , as excepted , there will remain Three and thirty , wherein the Table and the Karaits agree .

And whereas the enumeration of the prohibited marriages to a man are in the Table but Thirty , and by consequence so many to the woman ; for where the man is prohibited to marry the woman , the woman must reciprocally be prohibited to marry the man ; the reason is , because in the number of degrees in the Table , the Grand-fathers wife , the Grand-mother , and the wives Grand-mother , make but three degrees : But in the enumeration of the Karaits , the Grand-fathers wife by the father , the Grand-fathers wife by the mother , the Grand-mother by the father , and the Grand-mother by the mother , the wives Grand-mother by the father , and the wives Grand-mother by the mother , are severally enumerated , and so make Six persons , Three more than are enumerated in the Table , and so the Numbers agree .

The second Assertion .

And as to the second Assertion , That admitting this marriage is not within the Levitical Prohibitions , yet the Temporal Courts cannot prohibit the impeaching or drawing it into question by the Spiritual Court .

There is a great difference between marriage within the Levitical prohibitions , and marriage within the Levitical degrees , which commonly are taken to be the same . For marriage within the Levitical prohibitions was always unlawful to the Hebrews by Gods Law , that is , the Mosaick Law : But marriage within the Levitical degrees was not always unlawful ; for marriage between persons of the same nearness in Affinity or Consanguinity , which only makes the degree , was in some case and circumstance unlawful , in others lawful : So a marriage unlawful , and a marriage lawful , as the Circumstance varied in the same degree , that is , the same nearness of Relation .

The Levitical degrees , qua such , are set forth by no Act of Parliament ; but marriages which fall within some of those degrees , are said to be marriages within the degrees prohibited by Gods Law , by 28. H. 8. c. 7. & 28 H. 8. c. 16.

Nor is it said in any Act of Parliament , That all marriages within the Levitical degrees are prohibited by Gods Law .

Sir Edward Coke in the first Edition , but not in the rest , Cok. Litt. f. 235. a. Edit. 1. of his Littleton , hath , I confess , these words ; By the Statute of 32 H. 8. it is declared , That all persons be lawful , that is , may lawfully marry , that are not prohibited by Gods Law to marry , that is to say , that be not prohibited by the Levitical degrees .

By which he makes all Gods Law , by which any marriage is prohibited to be the Levitical degrees , which is not so ; nor doth he constare sibi , for in his Comment upon the Statute of 32 H. 8. he saith expresly ,

That marriage made with a person pre-contracted , or with a person naturally impotent , could not have been impeached in order to a Divorce , by reason of the Statute of 32 H. 8. but because such marriages are against Gods Law . Yet they are not marriages within the Levitical degrees .

This marriage in question therefore , though by way of Admission not within the Levitical prohibitions , if it be within the Levitical degrees at all , and whether unlawful or lawful within them , and by what Law soever so unlawful or lawful , cannot be prohibited to be impeached by the Spiritual Courts , by the Statute of 32 H. 8.

For that Act prohibits the impeaching of marriages only which are absolutely without the Levitical degrees , leaving all other to the Spiritual Jurisdiction as before the Act of 32. Now

The Levitical degrees are to be reckon'd by the persons whose carnal knowledge is forbidden a man in respect of Consanguinity or Affinity by the Law of Moses . As the carnal knowledge of the mother , the fathers wife , the sons wife , &c. in respect of Consanguinity of the wives daughter , her daughters daughter , her mother , &c. in respect of Affinity . And it is plain , the wives sister is prohibited in some respect of Affinity , by the words , Neither shalt thou take a wife to her sister , to vex her : Therefore her marriage with her sisters husband is a marriage within the Levitical degrees .

And agreed on all sides to be unlawful within the degrees , if during the wives life ; but doubted if unlawful after her death .

Next , it is certain the wives husband was restrained from taking his wives sister as he might take another woman , that is , either during his wives life , or after : Therefore his marriage with her was within the Levitical degrees .

But it must be clearly without those degrees , if the impeachment of it may be prohibited by the Act of 32 H. 8.

This marriage permitted lawful by the Canon Law , where used . Decret. Greg. l. 4. Tit. de Divortiis , c. 9. If a man marry his brothers wife , none will deny that marriage to be within the Levitical degrees ; yet in some case that marriage was lawful by the Mosaick Law , that is , if the deceased brother died issuless . But that will not hinder the impeachment of such a marriage by the Statute of 32 H. 8.

So if a man marry his fathers brothers wife , it is a marriage within the Levitical degrees . Yet if the fathers brother were by the half blood only of the mothers side , the Rabbies and Scribes held such marriage not unlawful by the Levitical Law , but by the Sanctions of the Elders . Seld. Uxor Ebraica , l. 1 c. 2. f. 8. Many such cases may be found to prove a marriage may be lawful , though it be a marriage within the Levitical degrees : But none of those can therefore be prohibited to be impeached , for they are not marriages without the Levitical degrees , as the Statute requires .

Accordingly Sir Edward Coke commenting upon the Statute of 32 H. 8. in his second Institutes , Cok. Inst. 2 f. 683. sets forth a Scheme of the Levitical degrees , as necessary to the exposition of that Statute , and therein enumerates the marriage of the wives husband with her sister to be both within the Levitical degrees , and prohibited by the Eighteenth Chapter of Leviticus .

One Man was sued before the High Commissioners , Mans Case , Moore 's Rep. f. 907. a. 33 Eliz. for marrying his wives sisters daughter , and a Prohibition was granted , as Moore Reports the Case , because the marriage was not prohibited by the Levitical Law , which was no Reason .

Crook reports the same Case , Crook . 33 El. f. 228. Mans Case . and that a prohibition was granted , but that a consultation was after granted , and that a sentence of Divorce was given .

In reporting this Case of Mans , Justice Crook's words are , A Consultation was granted , because the Prohibition is not to be , if the marriage be not within the Levitical degrees .

Which is a great mistake ; for if the marriage be within the Levitical degrees , no prohibition ought to issue ; for it ought not to be but when the marriage is without the Levitical degrees .

Then he adds , But here the prohibition was general , and therefore not good ; which is not intelligible , whatever he intended by it .

For by the Libel it must necessarily appear to the Court , That the marriage in question was either without the Levitical degrees , or within them .

If it were without the degrees , the Court did most unjustly to grant the Consultation , for it ought not to have been granted .

If the marriage were within the Levitical degrees , it had been unjust not to grant a Consultation .

But a Consultation was granted , therefore the Court conceived the marriage of the husband with his wives sisters daughter to be a marriage within the Levitical degrees , and not without them , though it be not specified in the Eighteenth of Leviticus to be prohibited .

Cok. Litt. Edit. 1. f. 235. a. Peirsons Case not Parsons . Sir Edward Coke , in the first Edition of his Littleton , saith , That one Peirson was sued in the Ecclesiastical Court for marrying his first wives sisters daughter against the Canons of the Church ; and that the Court of Common Pleas , upon consideration taken of the Statute of 32 H. 8. granted a prohibition , because the marriage was not prohibited by the Levitical degrees . And these two Cases have been principally insisted on to prove no marriage is within the Levitical degrees , if the degree be not particularly mentioned in the Eighteenth of Leviticus . But upon occasion of Harrison's Case , lately adjudg'd in this Court , I made search for the Records of those two Cases , but no Record could be found of Man's Case ; but by Crook a Consultation was granted in it .

Trin. 2 Jac. Rot. 1032. By the Record of Pierson's Case , which was in Trinity 2 Jac. it appears that in Hillary Term following a Consultation was granted , which Sir Edward Coke mentions not in his Littleton . And in the Second Edition of his Littleton , and all the subsequent Editions , that Case is omitted .

Hob. f. 181. a. Howard vers . Bartlet . Rennington's Case . I find likewise in the Lord Hobarts Reports , That one Rennington was questioned by the High Commissioners for marrying his wives Neece , and was sentenced to Penance , and bound to abstain from her Company , but they were not divorced à vinculo Matrimonii , though there was cause , saith the Book , and therefore the wife had her Dower , nor was there any prohibition in the Case .

So as by all these Cases the marriage of the husband with his wives sisters daughter , is a marriage prohibited within the Levitical degrees , for nearness of kindred to the wife ; Then of necessity the wives sisters marriage ( who is nearer to the wife ) with the wives husband must be prohibited à fortiori ; So I conceive these three Cases full against the Plaintiff .

It is not strange , That at first Prohibitions were granted upon the Statute of 32. in Cases which were not specifically mentioned in the Eighteenth of Leviticus , but after discussions of the Levitical degrees upon Consultations pray'd , It was manifestly found , That divers marriages must be prohibited within the Levitical degrees , not nominally expressed in the Eighteenth of Leviticus ; As the marriage of the father with his own daughter , Of the Grandson with his Grand-mother or Grand-fathers wife , Of the Son with his Mothers brothers wife , Of the Uncle with his brothers or sisters daughter , Cok. Inst. 2. f. 683 , 684. which since appears by Sir Edward Coke to be a prohibited marriage , and others upon like reason .

And was resolved in Arch-bishop Laud's time , in the Case of Sir Giles Alington , who was deeply fined , and a Sentence of Divorce given for marrying his brother or sisters daughter , which I heard at Lambeth House .

And no prohibition was granted , though moved for , as was very probable , and commonly reported ; but we find no Record of Prohibitions denied , for there is no Entry made of Motions not granted , but of Prohibitions granted there is , which makes the granting of a Prohibition of no great Authority , unless upon Action brought a Consultation be denied upon Demurrer .

So of the husband with his wives sisters daughter .

The third Assertion .

As to the third Assertion , That admitting this marriage be without the Levitical degrees , yet it is prohibited by Gods Law , and therefore to be impeached notwithstanding the Statute of 32 H. 8. whose words are , No marriage , Gods Law excepted , shall be impeached without the Levitical degrees .

When an Act of Parliament declares a marriage to be against Gods Law , it must be admitted in all Courts and Proceedings of this Kingdom to be so .

By an Act , 25 H. 8. c. 22. intituled , An Act declaring the Establishment of the Succession of the Kings most Royal Majesty in the Imperial Crown of this Realm .

Among sundry marriages declared by that Act to be marriages within the degrees of marriage prohibited by Gods Law , the marriage of a man with his wives sister is expresly declared to be prohibited by Gods Law , and that a Divorce should be of such marriage , if any such were .

But this Act is expresly repeal'd by an Act in 28 H. 8. c. 7. intituled , An Act for the Establishment of the Imperial Crown of this Realm .

By that Act of 28 H. 8. it is declared in these words , And furthermore , since many Inconveniences have fallen , as well in this Realm as others , by reason of the marrying within the degrees of marriage prohibited by Gods Law . That is to say , The Son to marry the Mother or the Step-mother , carnally known by his Father , The Brother the Sisters , The Father his Sons daughter , or his Daughters daughter , Or the Son to marry the Daughter of his Father , procreat and born by his Step-mother , Or the Son to marry his Aunt , being his Fathers or Mothers sister , Or to marry his Uncles wife , carnally known by his Uncle , Or the Father to marry his Sons wife , carnally known by his Son , Or the Brother to marry his Brothers wife , carnally known by his Brother , Or any man married , and carnally knowing his wife , to marry his Wives daughter , or his Wives sons daughter , Or his Wives daughters daughter , Or his Wives sister .

Then it declares , Those marriages to be indispensable , because against Gods Law , and that there should be a separation of such marriages , if any were , and the Children procreat in them to be illegitimate .

But this Clause also of this Act of 28 H. 8. as some conceive , is repeal'd by 1 & 2 Phil. & Mar. c. 8. in these words , And also all that part of the Act made in the said 28 H. 8. intituled , An Act for the Establishment of the Succession of the Imperial Crown of the Realm , that concerneth a Prohibition to marry within the degrees expressed in the said Act , shall henceforth be repeal'd , made frustrate , void , and of none effect .

By the Act of 1 & 2 Phil. & Mar. two other Laws are likewise repeal'd , which concern the question before us , viz. An Act in 28 H. 8. c. 16. intituled , An Act for the release of such as have obtained pretended Licences and Dispensations from the See of Rome : And the Act of 32 H. 8. c. 38. which hath been often mentioned .

But these two last Acts are revived by the Act of 1 Eliz. c. 1. and in force ; but neither the Act of 25 H. 8. nor 28 H. 8. c. 7. are reviv'd in express terms : And not only so , but the Act of 1 El. c. 1. hath this Negative Clause , That all other Laws and Statutes , and the Branches and Clauses of any Act or Statute repeal'd by the said Act of Repeal made in the time of the said late King Philip and Queen Mary , and not in this present Act specially mentioned and reviv'd , shall stand , remain , and be repeal'd and void in such like manner and form as they were before the making of this Act.

Whence it follows , That this marriage is not now proved to be against Gods Law , by either of these repeal'd Statutes of 25 H. 8. or 28 H. 8. c. 7. unless it be made out , that one of them at least remains at this day in force . And as for that ,

The Act of 28 H. 8. c. 16. which makes void all Dispensations from the See of Rome , and expresly revived by 1 Eliz. and all Branches , Words , and Sentences thereof , hath these words , As a Grace of the Kings to divers of his Subjects , who had married by Dispensation , notwithstanding that Act made all Dispensations from Rome void .

All marriages had from the Third of November , 26 H. 8. for which no Divorce or Separation is had , and which marriages be not prohibited by Gods Laws , limited and declared in the Act made this present Parliament for Establishing the Kings Succession , or otherwise , by Holy Scriptures , shall be good . By which words I conceive the Clause of 28 H. 8. c. 7. repeal'd in Queen Maries time , is again reviv'd .

Obj. It may be objected , The Clause of 28 H. 8. c. 7. concerning marriages prohibited by Gods Law , continues still repeal'd , because it is not specially mentioned to be reviv'd by the Act of 1 Eliz. And therefore no Act is in force declaring the husbands marriage with his wives sister to be prohibited by Gods Law .

Answ. An Act repeal'd is of no effect more than if it had been never made .

By the Act of 28 H. 8. c. 7. All marriages prohibited by Gods Law , limited and declared by the Clause of that Act , were unlawful , notwithstanding any Dispensation had before the Repeal of that Clause .

By the Reviver in 1 Eliz. of 28 H. 8. c. 16. and of every Clause in it , All marriages prohibited by Gods Law , limited and declared by 28 H. 8. c. 7. were again unlawful , as before the Repeal , notwithstanding any Dispensation .

Therefore the Statute of 28 H. 8. c. 7. was revived by the Reviver of the Statute of 28 H. 8. c. 16. in 1 Eliz. and made as effectual as before it was repeal'd , and so it continues .

If it had been enacted by Parliament after the Repeal of the Clause in 28 H. 8. c. 7. That all marriages prohibited by Gods Law , limited and declared by 28 H. 8. c. 7. should be unlawful , notwithstanding any Dispensation that enacting had revived the Clause in 28 H. 8. c. 7.

Therefore the same thing being enacted by revival of 28 H. 8. c. 16. must have the same effect of reviving that Clause in 28 H. 8. c. 7.

I will put it , for more clearness , by way of a Case ; A man before the Third of November , 26 H. 8. by Dispensation from Rome , had married his wives sisters daughter , which marriage was prohibited by the Canons of the Church , and no Divorce had been attempted in the Case until after 1 Eliz. and the Reviver of the Statute of 28 H. 8. c. 16. which made void all Dispensations from Rome .

It is plain , That this marriage being not prohibited by Gods Law , limited and declared in the Act of 28 H. 8. c. 7 : was by the express words of the reviv'd Act of 28 H. 8. c. 16. a marriage to continue good without separation , notwithstanding all Dispensations from Rome were null'd ; because it was no marriage excepted out of the Grace intended and given by that Act to the Kings Subjects married by Dispensation before November the Third , 26 H. 8. and not then separated .

But if a marriage before the Third of November , 26 H. 8. had been by Dispensation between the brother and sister , or as this Case is between the husband and his wives sister , and no Separation attempted until after 1 Eliz. and the Reviver of the Act of 28 H. 8. c. 16. These marriages were not to continue good , and without Separation by 28 H. 8. c. 16. because they were marriages particularly excepted out of the Grace granted by that Act , as being prohibited by Gods Law , limited and declared in the Act of 28 H. 8. c. 7. which proves 28 H. 8. c. 7. to be in force by the Reviver of 28 H. 8. c. 16. and consequently the marriage in question to be clearly against Gods Law , which is the thing to be proved .

In the Statute of 28 H. 8. c. 7. there are two Clauses concerning marriages , The first declaring certain marriages there recited , to be within the degrees prohibited by Gods Law , which Clause concerns the present question , and is before cited .

The second Clause , in these words , Be it therefore enacted , That no person or persons , Subjects or Resiants of this Realm , or in any your Dominions , of what estate , degree , or degrees soever they be , shall from henceforth marry within the degrees afore rehearsed , what pretence soever shall be made to the contrary thereof . Then it proceeds ,

That if there were any Divorce or Separation made of any such marriages by the Arch-bishops or Ministers of the Church of England , such Separation should remain good , and not be revokable by any Authority ; and the Children procreated under such unlawful marriage , should be illegitimate .

And if any such marriages were in any the Kings Dominions without Separation , that there should be a separation from the Bonds of such unlawful marriage .

Now we must observe , the Act of 1 & 2 Phil. & Mar. c. 8. doth not repeal this Act entirely of 28 H. 8. c. 7. but repeals only one Clause of it ; the words of which Clause of Repeal are before cited , and manifest this second Clause of the Act of 28 H. 8. and not the first to be the Clause intended to be repeal'd .

For there was no reason to repeal the Clause declaratory of marriages prohibited by Gods Law , which the Church of Rome always acknowledged ; nor do the words of Repeal import any thing concerning marriages within degrees prohibited by Gods Law .

But ( as the time then was ) there was reason to repeal a Clause enacting all Separations of such marriages with which the Pope had dispenc'd , should remain good against his Authority ; and that such marriages with which he had dispenc'd , not yet separated , should be separate .

And the words of the Clause of Repeal manifest the second Clause to be intended , viz. All that part of the Act made in the said Eight and twentieth year of King Henry the Eighth , which concerneth a prohibition to marry within the degrees expressed in the said Act , shall be repeal'd , &c.

As it is true , That if a marriage be declared by Act of Parliament to be against Gods Law , we must admit it to be so ; for by a Law ( that is , by an Act of Parliament ) it is so declared .

By the same reason , if by a lawful Canon , a marriage be declared to be against Gods Law , we must admit it to be so ; for a lawful Canon is the Law of the Kingdom , as well as an Act of Parliament : And whatever is the Law of the Kingdom , is as much the Law as any thing else that is so ; for what is Law doth not suscipere magis aut minus .

But by a lawful Canon of this Kingdom , which is enough , and not only so , but by a Canon warranted by Act of Parliament , the marriage in question is declared to be prohibited by Gods Law , therefore we must admit it to be so .

In a Synod or Convocation holden at London in the year 1603. for the Province of Canterbury , by the Kings Writ , and with the Kings Licence under the Great Seal of England , to treat , consult , and agree of such Canons and Constitutions Ecclesiastick as should be there thought fit . Several Canons were concluded and agreed

To which King James gave his Royal Assent and Approbation , and by his Letters Patents ratified and confirmed them , according to the form of the Statute made in 25 H. 8. c. 19. and commanded the due observance of them . Among which the Ninety ninth Canon is ,

No person shall marry within the degrees prohibited by Gods Law , and expressed in a Table set forth by Authority in the year of our Lord 1563. and all marriages so made and contracted , shall be adjudged incestuous and unlawful ; and the aforesaid Table shall be in every Church publickly set up and fixed at the charge of the Parish .

Which is the same as — No person shall marry within the degrees prohibited by Gods Law , and which degrees are expressed in the Table , &c.

For to the Question , What is expressed in the Table ? there can be no Answer , but the degrees prohibited by Gods Law .

But by this Table , this marriage in question is expressed to be in a degree prohibited by Gods Law , therefore it must be admitted to be so .

Another consequent is this , That by this Canon , and consequently by the Law of this Kingdom , All marriages prohibited by that Table , are declared to be within the degrees prohibited by Gods Law .

Note , That any marriage unlawful by holy Scripture , is declared here to be against Gods Law Judicially , no otherwise , than because by the Law of the Land the Scripture it self is declared and approved to be the Law of God ; for the Scripture cannot judge it self to be Scripture without some Judicature . — Therefore by the sixth Canon , tempore Ed. 6. at a Convocation in London , Anno 1552. the Authority of the Old Testament was declared . Can. 1552. At a Convocation of both Provinces in London , Anno 1562. the Canonical and Apocryphal Books of the Old Testament were particularly enumerated , Can. 1563. and the Books of the New declared Canonical , as Receiv'd . By the seventh Canon the Authority of the Old Testament Declared .

By the Act it is said , That the Clergy of this Kingdom , nor any of them , shall henceforth enact , promulgate , or execute any Canons , Constitutions , or Ordinances Provincial , by whatsoever name or names they may be called , in their Convocations , in time coming , which shall always be assembled by Authority of the Kings Writ , unless the same Clergy may have the Kings most Royal Assent and Licence to make , promulge , and execute such Canons , Constitutions , and Ordinances Provincial , &c.

The Chief Justice delivered the Resolution of the Court ; And accordingly a Consultation was granted .

In Camera Scaccarii . Edward Thomas Plaintiff . Thomas Sorrell Defendant .

THE Plaintiff by Information in the Kings Bench , tam pro Domino Rege quam pro seipso , demands of the Defendant Four hundred and fifty pounds for selling Wine in the Parish of Stepney , in the County of Middlesex , by Retail , Ninety several times , between the Tenth day of June , the Seventeenth of the King , and the Two and twentieth day of May , the Eighteenth of the King , to several persons , without licence , contrary to the Statute of 12 Car. 2. whereby he forfeited Five pounds for every several offence , which amounts to Four hundred and fifty pounds .

The Defendant pleads , Nil debet , and therefore puts himself upon the Country . The Iury find ,

That as to all the Debt , except Fifty pounds , the Defendant owes nothing . And as to the Fifty pounds , they find the Statute of 7 E. 6. c. 5. concerning retailing of Wines , prout in the Statute .

They find Letters Patents under the Great Seal , dated 2 Febr. 9 Jac. _____ prout in the Letters Patents , whereby King James incorporated the Company of Vintners in the City of London , by the Name of Master , Warden , Freemen , and Commonalty of the Mystery of Vintners in the said City , and thereby among other things granted , for him , his Heirs and Successors , to the said Master , Warden , and Freemen of the said Company , and their Successors , that they might always after , within the said City and Suburbs of the same , and within three Miles from the Walls or Gates thereof , and in all and every other City and Sea-ports , called Port-towns , within the Kingdom of England , and in all other Cities and Towns , known by the name of Thorough-fare-towns , where Posts were set and laid between Dover and London , and between London and Barwick , where any of the Freemen of the said Mystery did , or should happen to dwell and keep a Wine Tavern , and by themselves or servants , sell Wine by retail or in gross to their best advantage , in their houses , or elsewhere , Non obstante the Statute of 7 E. 6.

They find the Act of 12 Car. 2. c. 25. and the confirmation of it concerning the giving Licences to retail Wine , and the Proviso therein prout .

Provided also , That this Act , or any thing therein contained , shall not extend , or be prejudicial to the Master , Wardens , Freemen , and Commonalty of the Mystery of Vintners of the City of London , or to any other City or Town Corporate , but that they may use and enjoy such Liberties and Priviledges , as heretofore they have lawfully used and enjoyed .

They find . That the Master , Wardens , Freemen , and Commonalty of the Mystery of Vintners in the City of London , was an ancient Corporation of the said City of London , at the time of the Act of 12 Car. 2. and incorporated by the Name of Master , Wardens , Freemen , and Commonalty of the Mystery of Vintners of the City of London .

They find , That the Defendant , three years before , and during all the time in the Information , used the Trade of retailing of Wine , and kept a Tavern in the Parish of Stepney in the County of Middlesex , was an Inhabitant there , and that the Defendants house , in which the said Wine was sold , is within two miles of the City of London .

They find , That the Defendant , within the time in the Information mentioned , did sell Ten pints of Sack , as in the Information mentioned , to be drunk and spent in his said dwelling house , being a Tavern , in the said Parish of Stepney .

They find , That at the time of the sale of the said Wine , and three years before , the Defendant was a natural born Subject of the King , and a Freeman of the City of London of the said Company of Vintners .

Si pro quer . quoad 50 l. pro quer .

Si pro Def. pro Def. 1 s.

Vpon this Special Verdict three Questions have been raised .

1. Whether the Patent of 9 Jac. was not void in its Creation ?

2. Admitting it was not void in its Creation , Whether it became void by the death of King James .

3. If it were a good Patent in the Creation , nor was void by the death of King James , Whether the Proviso in the Act of 12 Car. 2. Saving all the Right of the Master , Wardens , Freemen and Commonalty of Vintners in the City of London , hath preserved all that Right which they had by the Patent of 9 Jac. against the Act of 12 Car. 2 ?

1. I conceive , That if the Patent , 9 Jac. were not void in the Creation , it remained good after the death of King James .

2. If it were not void in the Creation , nor by the death of King James , all Right that the Master , Wardens , Freemen and Commonalty of Vintners had by it , is still preserved by the Proviso in the Act of 12 Car. 2. but if the Patent of 9 Jac. was void in its Creation , or by the death of King James , then the Proviso in the Act of 12 Car. 2. aids them not at all .

So as now it is only insisted on , That the Patent of 9 Jac. was void in its Creation , for two Reasons .

1. For that the Law of 7 E. 6. was such a Law , pro bono publico , as the King could not dispence against it , more than with some other penal Laws , pro bono publico .

2. If he could to particular persons , he could not to the Corporation of Vintners , and their Successors , whose number or persons the King could never know ; and that it stood not with the trust reposed in him by the Law , to dispense so generally without any prospect of number or persons .

The Books have been plentifully urg'd at the Barr , and by my Brothers , who argued before me , therefore I shall not Actum agere to repeat them .

But I observed not that any steddy Rule hath been drawn from the Cases cited to guid a mans Judgment , where the King may , or may not dispence in penal Laws , excepting that old Rule taken from the Case of 11 H. 7. 11 H. 7. f. 11 , 12.

That with Malum prohibitum by Stat. the King may dispence , but not with Malum per se .

But I think that Rule hath more confounded mens Iudgments on that subject , than rectified them .

Yet I conceive that Case , and the Instances given in it , rightly understood , to be the best key afforded by our Books , to open this dark Learning ( as it seems to me ) of Dispensations , to which therefore I shall only or principally apply my self .

Before I enter upon it , I must previously assent , That every act a man is naturally enabled to do , is in it self equally good , as any other act he is so enabled to do . And so all the Schoolmen agree , That Actus qua actus non est malus . Rom. 4.15 . And that mens acts are good or bad only as they are precepted or prohibited by a Law , according to that Truth , Where there is no law there is no transgression . Whence it follows , That every Malum is in truth a Malum prohibitum by some Law .

In the next place , I mean by the word ( Dispensation ) when I use it , another thing than some of my Brothers defined it to be , namely , That it was Liberatio à poena ; or as others , That it is provida relaxatio Juris , which is defining an ignotum per ignotius , but liberare à poena , is the proper effect of a pardon , not of a dispensation ; For a dispensation obtained doth jus dare , and makes the thing prohibited lawful to be done by him who hath it , upon which depends the true reason of many Cases which admit not of dispensation ; but a pardon frees from the punishment due for a thing unlawfully done . Yet freedom from punishment is a consequent of a dispensation , though not its effect . But so it is also a consequent of repealing the Law , and a consequent of an exception at the making of the Law of some particular person or persons from being bound by the Law .

I come now to the Case it self of 11 H. 7. wherein I agree , That with Malum prohibitum by Stat. indefinitely understood the King may dispense .

But I deny that the King can dispense with every Malum prohibitum by Statute , though prohibited by Statute only .

1. The King may pardon Nusances that are transient , and not continuing , as a Nusance in the High-way , which still continues , and is not ended , until removed ; cannot be pardon'd : So of a Water-course diverted , or a Bridge broken down , Cok. Pla. Coron. f. 237. they cannot be pardon'd so as to acquit the Nusance-maker for committing them ; but the fine or punishment impos'd for the doing may be pardon'd .

But breaking the Assise of Bread and Ale , forestalling the Markets , ingrossing , regrating , or the like , which continue not , but which are over assoon as done , until done de novo again , may be pardon'd , like other offences : So as the Offender shall not be impleaded for them , otherwise than by persons who have receiv'd particular damage , which the King cannot remit ; this difference holds in offences by penal Laws .

22 Car. 2. c. 8. So a Mayor or Bayliff of a Town , or other Toll-taker , who is penally bound to provide true Market measures , and doth not , cannot be pardon'd by the King , because the fault still continues ; but the punishment inflicted the King may pardon . But by a Law all these offences may be pardon'd .

So it is generally true , that malum per se cannot be dispensed with ; but thence to inferr ( as many do ) that every malum which the King cannot dispense with is malum per se , is not true .

Nor is there in that Case any sufficient designation of what is malum per se , and why to prevent error in disquisition concerning it , though some instances thereof , mala per se , be very right .

I shall therefore endeavour to in stance in several kinds of mala per se , which cannot be dispens'd with , and in some mala prohibita by Acts of Parliament , and otherwise , which the King also cannot dispense with ; and to give the reason why he cannot in both , thereby to make the conclusion I drive at less confused , which is to differ penal Laws dispensable from those which are not .

Murther , Adultery , Stealing , Incest , Sacriledge , Extortion , Perjury , Trespass , and many other of the like kind , all men will agree to be mala per se , and indispensable : All which are prohibited , and by Statutes . Nor is it much to say , those are also prohibited by the Common Law , and therefore cannot be dispens'd with , if that were the reason , nothing prohibited at the Common Law could be dispens'd with , which is not so .

2. Where the Suit is only the Kings for breach of a Law , which is not to the particular damage of any third person , the King may dispense ; but where the Suit is only the Kings , but for the benefit and safety of a third person , and the King is intitled to the Suit by the prosecution and complaint of such third person , the King cannot release , discharge , or dispense with the Suit , but by consent and agreement of the party concern'd . As where , upon complaint of any person , a man hath entred into Recognizance to keep the Peace against such person , the King cannot discharge such Recognizance before it be forfeited ; but the party whose safety is concerned may , though the King only can sue the Recognizance . Some more such Cases may be .

As the Laws of Nusances are pro bono publico , so are all general penal Laws ; and if a Nusance cannot be dispens'd with for that reason , it follows , no penal Law , for the same reason , can be dispens'd with .

Therefore the reason is , because the parties particularly damaged by a Nusance , have their Actions on the Case for their damage , whereof the King cannot deprive them by his dispensation : And by the same reason , other penal Laws , the breach of which are to mens particular damage , cannot be dispens'd with .

3. Nusances and Ills prohibited by penal Acts of Parliament , are of the same nature as to the publique , 4 E. 4. f. 31. 22 E. 4. f. 22. 3 H. 7. f. 1. Br. Leet . n. 2. 19 , 25 , 26 , 30. although ( as the Law is now received ) the mala or nocumenta prohibited by Acts of Parliament , are not presentable in Leets , or the Sheriffs Torn , as Nusances at Common Law are , of which some questionless cannot be dispens'd with ; As obstructing the High way , diverting a Water-course , breaking down a Bridge , breaking the Assise of Bread and Ale : for as to these , the parties particularly damaged by them have their Actions , which the King cannot discharge .

4. Other ancient Nusances are by which no man hath a particular damage or action for it , as if a man buy provision coming to the Market by the way ( which is a Nusance by forestalling the Market ) and sells it not in the Market forestall'd , no Action lies for a particular damage to any man , more than to every man ; but the King may punish it .

So if a may buy Corn growing in the field , contrary to the Statute of 5 E. 6. c. 14. he is an Ingrosser : So selling Corn in the Sheaf is against the Common Law by Robert Hadham's Case , Cok. f. 197. c. 89. Hill. 25 E. 3. coram Rege . cited in Coke's Pleas of the Crown , and punishable by the King , but no particular person can have an Action for such ingrossing more than every man ; yet these are Nusances by the Common Law , but so made by prohibiting Laws beyond memory : As by a Law of King Athelstans , Ne quis extra oppidum quid emat , Sax. Laws . f. 49. c. 12. Will . the firsts Laws . f. 171. c. 60 , 61. Cok. Pleas Coron. 197. forestalling was prohibited . And by several Laws of William the First , Ne venditio & emptio fiat nisi coram testibus & in civitatibus . Item nullum mercatum vel forum sit , nec fieri permittatur , nisi in civitatibus regni nostri . And no way differ from publique evils now prohibited by Parliament , and may , by it , be permitted , for the Statute of 15 Car. 2. c. 5. 15 Car. 2 c. 5. gives leave to ingross without forestalling , when Corn exceeds not certain Rates . Nor see I any reason why the King may not dispense with those Nusances by which no man hath right to a particular action , as well as he may with any other offence against a penal Law , by which no third person hath cause of Action .

Whence it follows , That if an Act of Parliament call an offence a Nusance , from which no particular damage can arise to a particular person , to have his Action , the King may dispense with such a nominal Nusance as with an offence against a penal Law , for which a man can have no Action for his particular damage .

5. The Register hath no Writ of Ad quod damnum , upon any Licence to be granted , but for alienation of Capite Land , or in Mortmain , or for diverting or obstructing a Water-course , or High-way , in which Cases the Writ is directed to the certain Sheriff or Escheator of the County , where the Land-way or Water-course lye ; but for Licences for other things , as Exportation or Importation of prohibited Commodities , a Writ of Ad quod Damnum , cannot be directed to any certain Sheriff , or other Officer , to enquire .

Nor is it enough to make a thing malum per se , because prohibited at Common Law : But the reason is ,

The word Murther ( ex vi termini , in the Language it is us'd in ) signifies unlawful killing a man . The word Adultery , unlawful Copulation ; Stealing , unlawful taking from another ; Perjury , unlawful swearing ; and Trespass , ex vi termini , an unlawful imprisonment , or unlawful entry , or the like , upon anothers House or Lands , and so do the other mala instanced .

If these mala might be dispens'd with , in regard a dispensation , as I said . makes the thing to be done lawful to him who is dispens'd with , it follows , that the dispensation would make unlawful killing , which the word Murther imports , vi termini , to be lawful ; unlawful taking from another , which the word Stealing imports , to be lawful ; unlawful Swearing , which Perjury imports , to be lawful ; an unlawful Entry upon a mans House or Land , which the word Trespass imports , to be lawful , and so of the rest .

So the same thing , at the same time , would be both lawful and unlawful , which is impossible .

For the same reason , a Law making Murther , Stealing , Perjury , Trespass , or any the rest of the mala instanc'd in lawful , would be a void Law in it self .

For a Law which a man cannot obey , nor act according to it , is void , and no Law : And it is impossible to obey contradictions , or act according to them .

Therefore I may conclude those things to be mala in se , which can never be made lawful .

The instances in that Book of 11 H. 7. are none of these , but near them : the words are , But malum in se , the King , nor any other can dispense . And instanceth ,

Si Come , si le Roy , voyloit pardon de occider un homme ou de faire nusance in le haut chemin , ceo est void .

Where by the way , pardon is mis-printed for pocar done , for the King may pardon killing a man ; but if the King will give power to kill a man , or to make a nusance in the High-way , it is void .

And upon the same reason , a licence to imprison a man , to take his Land , his Horse , or any thing that is his from him , is void .

For in life , liberty , and estate , every man who hath not forfeited them , hath a property and right which the Law allows him to defend ; and if it be violated , it gives an Action to redress the wrong , and to punish the wrong-doer .

Therefore a dispensation , that is , to make lawful the taking from a man any thing which he may lawfully defend from being taken , or lawfully punish if it be , must be void .

For it is a contradiction to make it lawful , to take what may be lawfully hindred from being taken , or lawfully punished , if it be .

And that were to make two men have several plenary rights in the same thing at the same time , which no Law can effect : Therefore to do a thing which no Law can make lawful , must be malum in se .

But these instances differ from the former ; for killing a man , or taking from him his Lands or Goods , do not import , ex vi termini , that which is unlawful , as Murther and Stealing do ; for in many Cases killing a man , or taking his liberty or goods from him , is lawful , and where it is not , may by a Law be made so , which the other can never be .

As every new capital punishment ordained by Law , makes killing a man lawful where it was not before ; every new aid granted out of mens estate , makes a taking from men lawful that was not before .

But this is because a Law can alter , change , or transferr a mans property in life , liberty , estate , or any interest , as it will , which cannot be done without a Law , and thereby nothing unlawful is made lawful : But the property which a man had , and was the subject matter of the unlawful doing or taking before , is alter'd or transferred to another , either in toto or in tanto .

So as to violate mens properties is never lawful , but a malum per se , as that Book is of 11 H. 7. and according to that of Bracton ;

Bract. l. 3. f. 132 Rex non poterit gratiam facere cum injuria & damno aliorum quod autem alienum est dare non potest per suam gratiam .

But to alter or transferr mens properties to others , is no malum per se , it is daily done by the owners express consent , and by a Law without their express consent .

And as the Law is , the Lord of a Villain may transferr his Villains property , in Lands or Goods , to himself , by entry or seisure : And it is the signal difference between a Freeman and Villain , that it cannot be done to a Freeman , nor yet to a Villain to the use of any but his Lord .

The Learned and Judicious Grotius , in his excellent Work de Jure belli ac pacis , is most apposit upon this subject :

Grot. de Jure belli ac pacis , l. 1. c. 1. Sect. 5 , 6. Sicut ergo ut bis duo non sint quatuor , ne à Deo quidem potest effici , ita ne hoc quidem , ut quod intrinseca ratione malum est , malum non sit . And then follows , after some further explanation of his notion , Ita , si quem Deus occidi praecipiat , aut res alicujus auferri ; non licitum fiet Homicidium aut furtum ( quae voces vitium involvunt ) sed non erit Homicidium aut furtum ; quod vitae & rerum supremo Domino auctore fit . And it is the same to say ,

Si quem Lex occidi praecipiat aut res alicujus auferri , non licitum fiet homicidium aut furtum ( quae voces vitium involvunt ) sed non erit homicidium aut furtum quod a lege vitae & rerum potestatem habente , auctore fit .

If any need further satisfaction concerning what hath been said on this occasion , he may resort with success to the place quoted of that great Lawyer .

But it is to be observed , That altering or changing property is no subject matter for a dispensation . A man is not dispens'd with to do an act which he cannot do , but to do an act which simply he can do , but the Law prohibits his doing it , penally .

But altering or changing property is an act simply out of his power to do , which should be dispens'd with in that behalf .

And thus we see violation of property is a malum per se by that Book of 11 H. 7. and the reason why it is so , and cannot be dispens'd with .

A third kind of malum per se by that Case of 11 H. 7. 11 H. 7. is that which the Law of the Land admits to be specially prohibited , Jure Divino , Et Isint le Roy , ne nul Evesque ou Presbiter poit doner licence a un de faire Lechery , Quia est malum in se , saith the Book , that is Coition without wedlock , which offence , when by mutual consent , injures no property , having two husbands or two wives at the same time ; but that is also against the property of the first husband or wife , marriage within the Levitical degrees . 32 H. 8. c. 38. All which are admitted by the Law of the Land to be prohibited , Jure Divino , and cannot be dispenc'd with ; For no Human authority can make lawful what Divine authority hath made unlawful , without Gods leave , and then it is by his authority .

Many more particulars fall under this head , which I shall not now mention . Hence I infer mala in se to be only such as imply a contradiction to be made lawful , and consequently what may be made lawful by Human Law to be no malum in se , as not differing from other things which may be permitted or prohibited occasionally , at the pleasure of the Law-maker .

The King cannot dispense with a Nusance to the High-ways by 11 H. 7. and consequently , as some think , with no other publique Nusance , by Sir Edward Coke . Cok. Pleas of the Crown , f. 237. c. 105. For all common Nusances , as not repairing Bridges , High-ways , &c. the Suit is the Kings , but he cannot pardon or discharge the Nusance or the Suit for the same , the High-ways being necessary to support such of his Subjects as are occasioned to travel them : Of this more hereafter .

The specifical offences , which are publique Nusances , I do not reckon to be mala in se , as some do , because though it be admitted none of them can be dispens'd with , yet a Law may make them lawful ; and if so , they are not mala in se , as before .

But either a dispensation , or a Law to commit Nusances ( in those terms ) I conceive to be void , because the word Nusance imports a thing , vi termini , that is unlawful as Trespass doth ; and therefore it is a contradiction to make it lawful by a dispensation or Law .

But by a Law , a Baker or Victualler may sell Bread or Ale of such weight or measure as he pleaseth , and as they did before the Assise was made . By a Law a Water-course may be diverted ; Corn growing in the field , or Provision going to a Market may be bought up by the way , which are Nusances in Specie , so of the rest ; and therefore not mala in se , as some have thought , but mala politica , as they are prohibited .

But obstructing a High-way , diverting a Water-course , breaking down a Bridge , breaking the Assise of Bread and Ale , cannot be dispens'd with , though they are only punishable by the King , because such a Dispensation would take away the Action of those who had particular damage by the offence done .

But a Dispensation to buy the standing Corn of such a particular man , or field , or a certain provision going to such a Market , such a Market-day , may be good , for no man can declare upon a particular damage to himself thereby , for if any man could , every man could ; but a general dispensation in either kind , were an abrogation of the Laws which prohibit them , which cannot be .

Next , some Nusances are permanent , and continue still , until removed , as Ditches , Hedges , or other obstructions to the High-ways , diverting Water-courses , decay of Bridges ; these cannot be pardon'd , nor the Suit for them , until removed ; but breaking the Assise of Bread and Ale , buying provision in the way to Market , ingrossing a certain quantity of Corn , these are transient Nusances , as I conceive , which continue not , but cease , until done de novo , and such may be pardon'd , and the Suit for them ( as I conceive ) .

And note , if a man have particular damage by a foundrous way , he is generally without remedy , though the Nusance is to be punisht by the King . The reason is ,

Because a foundrous way , a decay'd Bridge , or the like , are commonly to be repaired by some Township , Vill , Hamlet , or a County who are not corporate , and therefore no action lyes against them for a particular damage , but their neglects are to be presented , and they punish'd by fine to the King .

But if a particular person , or Body Corporate , be to repair a certain High-way , or portion of it , or a Bridge , and a man is endamaged particularly by the foundrousness of the way , or decay of the Bridge , he may have his Action against the person or Body Corporate , 11 H. 4. f. 83. a. Rolls . Actions sur Case , f. 104. l. 2. who ought to repair for his damage , because he can bring his Action against them ; but where there is no person against whom to bring his Action , it is as if a man be damaged by one that cannot be known .

Though no person , Natural or Corporate , can have an Action for a publick Nusance , or punish it , but the King , upon presentment or indictment , as appears 3 E. 2. Where the Mayor and Commonalty of London brought an Action upon the Statute for forestalling the Markets , Fitz. Action sur le Stat. 3 E. 2. n. 26. which shews it must be the Stat. de Pistoribus in 31 E. 1. and after selling at double the rate , because no particular damage was alledg'd , without which the Suit was only the Kings , the Plaintiffs had nothing by their Action .

For if by any publique Nusance a man have a particular damage , 27 H. 8. 26 , 27. Cok. Litt. f. 56. a , Cok. pl. Coron. tit. Pardon . he may have his Action on the Case against the Nusance-maker .

And the reason why the King cannot dispense in such Cases , is , not only as Nusances are contra bonum publicum , but because if a Dispensation might make it lawful to do a Nusance , which differs from a Licence , to continue a Nusance in the reason of it , the person damaged by it would be deprived of his Action , for an Action cannot lye for doing that which was lawfully done ; and it is the same to alter or change property , by making what is mine to be lawfully another mans , as to licence another to damage me , and I shall have no Action or Remedy for it : And no offence against a penal Law could be dispenc'd with , if the reason of not dispensing were because the offence is contra bonum publicum , for all offences by penal Laws are such .

And it is observable , That if upon the Retorn of an Ad quod dampnum it appear to be ad dampnum vel prejudicium of no man , Cro. 8 Car. 1. f. 266 , 267. The King vers. Ward . the King may then licence the stopping up of an ancient High-way , or diverting a Water-course , or part of it , for the concern is then wholly his own , but without his licence it can never be done , though a better way be set out , and so retorn'd upon an ad quod damnum .

Offences against penal Laws to be dispens'd with .

1. There are many penal Laws , by transgressing which the Subject can have no particular damage , and therefore no particular Action ; for the Law gives not particular Actions regularly but for particular damage .

2. If any man might have an Action when he had no more damage than every other man had , thousands should equally have their several Actions , which the Law permits not .

11 H. 7. f. 12. 1 H. 7. f. 3. As if Transportation of Wooll , Mony , Corn , Horses , Bell-metal , Beer , or the like , be penally prohibited by Acts of Parliament , no Subject can derive a particular damage to himself for having an Action against the Offender .

Secondly , If one might have an Action for such offences , every man might have the like , therefore such offences are only to the King's damage in his publique Capacity of Supreme Governour , and wronging none but himself , he may ( as every man else may ) dispense with his own wrong , when it is absque damno & injuria aliorum .

And though such Laws are pro bono publico in some sense , they are not Laws pro bono singulorum populi , but pro bono populi complicati , as the King in his discretion shall think fit to order them for the good of the whole .

In this notion the estate of every Pater familias may be said to be pro bono Communi of his Family , which yet is but at his discretion and management of it ; and they have no interest in it , but have benefit by it .

Offences not to be dispens'd with .

There are other penal Laws by Acts of Parliament , and punishable at the Kings Suit by Indictment or Presentment ; the transgressing of which is to the immediate wrong of particular persons , and for which the Law gives them special Actions , with which the King cannot dispense : As he cannot licence a man to commit maintenance , to make a forcible entry , to carry distresses out of the hundred , 8 H. 6. c. 9. Stat. 1 & 2 P. & M. c. 12. contrary to the Statute , which yet are no Mala in se ; for it is no Malum in se to maintain in a just cause , to enter forcibly where the entry is lawful , to carry a distress farther or nearer ; but are mala when prohibita , and non when permissa , as they would be w●re the Laws repeal'd , and were before they were made : From whence it is clear , there are mala prohibita by Acts of Parliament with which the King cannot dispense : And next , it follows not , that a Malum with which the King cannot dispense , is a Malum in se , which are the exceptions I took to the receiv'd Rule , out of the Case of 11 H. 7.

No non obstante can dispense in these Cases , 8 H. 6. f. 19. The Chancellor of Oxfords Case . Br. Pat. n. 15. and many the like , for that were to grant that a man should not have lawful Actions brought against him , or be impleaded at least in certain Actions , which the King cannot grant .

For the same reason the King cannot licence a Baker , Brewer , or Victualler , to break the Assise of Bread or Ale , Stat. de Pistoribus c. 7. 31 E. 1. nor a Miller to take more Toll than the Law appoints , nor a Taverner to break the Assise of Wine , nor a Butcher to sell measled Swines flesh , or Murrain flesh , nor any man to forestall the Market by a non obstante of the Statute de Pistoribus , which prohibits all these under severe penalties .

Nor can he licence Butchers , Fishmongers , Poultrers , or other sellers of Victuals , nor Hostlers to sell Hay and Oats at what price they please , Stat. 23 E. 3. c. 6. 13 R. 2. c. 8. 9 Car. 1. Cam. Stell . by a non obstante of the Statute of 23 E. 3. c. 6. and 13 R. 2. c. 8. which require that the prises be moderate . And it was so resolved and decreed in the Star-Chamber by opinion of all the Judges , 9 Car. 1. and that the Iustices of the Peace , in the respective Counties , were to ascertain the prises of Hay and Oats .

He cannot licence a Labourer to take more wages , Regist. f. 190. a tit . de Servientibus . In the Table of the Register the Title is de Laborariis . nor any Officers to take more Fees than the Law allows , nor to distrain a mans Plough-Beasts , where there is other distress ; for in these , and multitudes of like cases the damaged person hath his Action equally as for a Nusance , to his particular hurt .

And even in the Case of a Common Informer , who cannot sue but in the King's Name , as well as his own , when he is once intitled to Action , which he never is but by commencing Suit , for then the Action popular is become his proper Action , the King can neither pardon , release , or otherwise discharge his right in the Suit , as is fully resolved 1 H. 7. 1 H. 7. f. 3. and in many other Books , much less can he discharge or prevent the Action of any other man .

The Statute of 12 Car. 2. c. 25. upon which this Case ariseth , hath examples of penal Laws in both these kinds . 12 Car. 2. c. 25

1. Every man is prohibited to sell Wine by retail , contrary to the Act , upon forfeiture of Five pounds for every offence ; from which offence no third man can possibly derive a particular damage to himself , for which he can have an Action upon his Case .

2. If any man should have an Action because another sold a pint of Wine without licence , every man should have the like Action which the Law permits not .

Whence it follows , That the offence wrongs none but the King , and therefore he may , as in like Cases , dispense with it .

By a second Clause in that Act , the mingling of Wine with several Ingredients therein mentioned , is penally prohibited ; as by another Clause the sale of Wine at greater prizes than the Act limits .

He that shall offend , either by unlawful mixtures , or by selling dearer than the Law admits , doth a particular wrong to the buyer , for which he may have his Action ; and therefore the King cannot dispense with either of those Offences .

Dispensations void against Acts of Parliament for maintaining Native Artificers .

The Case of Monopolies , the eleventh Report . If Forreign Manufactures , or Forreign Corn , as by the Acts of 3 E. 4. c. 4. ● 3 E. 4. c. 3. be prohibited for support of those Artificers , and the Husbandmen within the Kingdom , a Licence to one or more to bring them in , if general , is void by the Case of Monopolies , notwithstanding a Non obstante .

1. All penal Laws , when made , and in force , are equally necessary , and in things necessary there is no gradation of more or less necessary .

2. If any penal Laws were possibly less dispensable than others ( but upon the differences already given ) those capitally penal were less dispensable than those less penal ; but it is not so , 11 H. 7. f. 11. for coyning mony of right Alloy in imitation of the Kings Coyn , is capitally penal without licence , but it may be licenced .

1 H. 7. f. 3. If transporting Wooll were Felony , yet the King may licence it .

It is capital to multiply Gold or Silver by the Statute of 5 H. 4. c. 4. but may be licenc'd ; Cok. plac . Coronae , f. 74. c. 20. as was done to John Faceby , tempore H. 6. the Dispensation with a non obstante of that Statute may be seen , Coke's placita Coronae , f. 74. c. 20.

If an Ad quod damnum issue to enquire ad quod damnum vel praejudicium , a licence for a Mortmain will be : One Inquiry is — Si patria per donationem illam magis solito non oneretur , &c. Though the Retorn be , that by such licence patria magis solito oneretur , yet the licence , if granted , will be good , which shews that Clause is for Information of the King , that he may not licence what he would not , and not for Restraint , to hinder him to licence what he would . Fitz. Nat. Br. Ad quod damum , f. 222 b. Letter D. For by Fitz-herbert the usual licence now is with — Et hoc absque aliquo brevi de Ad quod damnum . And when the King can licence without any Writ of Ad quod damnum , he may , if he will , licence whatever the Retorn of the Writ be . Though it be said in the Case of Monopolies , That in the Kings Grant it is always a Condition expressed or implyed , Quod patria plus solito non oneretur , but that seems but gratis dictum .

So if the King will , ex speciali gratia , licence a Mortmain , Dyer 9 , 10 El. f. 269. a. the Chancellor need not issue any Ad quod damnum , for the King , without words of Non obstante , is sufficiently appris'd by asking his licence to do a thing , which at Common Law might be done without it , that now it cannot be done without it . And that is all the use of a Non obstante .

But whether in such Cases licences limited to certain quantities of the Commodities to be imported be good ( as some collect from that Case , as it is reported , which appears not by the Iudgment ) nor in what Cases licences may be general , or ought to be limited , is not now properly before us .

1. If Exportation , Importation of a Commodity , or the exercise of a Trade be prohibited generally by Parliament , and no cause expressed of the Prohibition , a licence may be granted to one or more without limitation to Export or Import , or to exercise the Trade : For by such general Restraint the end of the Law is conceived to be no more than to limit the over-numerous Exporters , Importers , or Traders in that kind , by putting them to the difficulty of procuring licences , and not otherwise , and therefore such general licences shall not be accounted Monopolies .

2. In such Cases the Law implies the King may licence as well as if the prohibitory Law had been that no such Importation , Exportation , or Trading should be without the King 's express licence , in which Case the licence requires no limitation to a certain quantity .

3. It is apparent , That if the exercise of a Trade be generally prohibited , the King's Licence must be without any Limitation to him that hath it , to exercise his Trade , as before it was prohibited , else it is no licence at all .

4. Where the King may dispense generally he is not bound to it , but may limit his Dispensation if he think fit .

5. If to avoid a Monopoly his Dispensation upon all prohibitory Laws generally must by Law be limited ; his limited Dispensation may be for greater quantities than were Imported or Exported before the Restraint , because the quantity in the Dispensation is left indefinite , and may be any quantity certain , and consequently the end of the Restraint equally frustrated , and the Monopoly as effectual as if the Licence had been general , though it be limited .

6. If a Commodity be prohibited to be Exported or Imported , because too great quantities of it is carried out , or brought in , the Licences ought to be limited to answer the end of the Act.

7. If Importation of a Commodity be prohibited , to maintain the Native Artificers of that Commodity in the Kingdome with livelyhood , and so of Exportation , no Licence , either with stint or limitation , or without it , seems good by way of Merchandise ; for both of them may equally frustrate the end of the Act in the support of the Native Artificers for the former reason , but such a Licence may be good to Import for a mans private use , though in the Case of Monopolies it is said , Such a Licence ( without any Limitation ) is a Monopoly , which is as much perhaps by implication , as to say that such a Licence with a Limitation is no Monopoly , quod non credo .

As to the second Question ; Admitting King James might have dispens'd with particular persons for selling Wine by Retail , as the constant course hath been since the Statute of 7 E. 6.

Whether he could dispense with a Corporation , or with this Corporation of Vintners , and their Successors , as he hath done , having no possible knowledge of the persons themselves , or of their number , to whom he granted his Dispensation ? which is the Reason insisted on why his Grant is not good . As to that ,

1. First , That the nature of the offence is such as may be dispens'd with , seems clear in reason of Law , and by constant practice of licencing particular persons .

2. Where the King can dispense with particular persons , he is not confined to number or place , but may licence as many , and in such places , as he thinks fit .

An Act of Parliament , which generally prohibits a thing upon penalty which is popular , or only given to the King , may be inconvenient to divers particular persons , in respect of person , place , time , &c. For this cause the Law hath given power to the King to dispense with particular persons .

But that Case touches not upon any inconvenience from the largeness of the Kings dispensation , in respect of persons , place , or time , which the Law leaves indefinite to the pleasure of the King , as the remedy of inconveniences to persons and places by the penal Laws , some of which may be very inconvenient to many particular persons , and to many trading Towns , others but to few persons or places , and the remedy by Dispensation accordingly must sometimes be to great numbers of persons and places , and sometimes to fewer .

If the wisdome of the Parliament hath made an Act to restrain pro bono publico , the Importation of Forreign Manufactures , that the Subjects of the Realm may apply themselves to the making of the said Manufactures for their support and livelyhood , to grant to one or more the Importation of such Manufacture ( without any limitation ) non obstante , the said Act is a Monopoly , and void .

3. It is admitted a Corporation is capable of a Dispensation ; as where the King hath an Inheritance in the thing concerning which the Dispensation is ( so it was express'd ) and therefore he may dispense with a Corporation of Merchants , or with a Town Corporate , not to pay Custome for some Commodity , as he may with particular persons .

This seems to end the Question ; For if the offence in its nature may be dispens'd with , and a Corporation be capable of a Dispensation , the King 's not knowing the persons or numbers ( which is the pretended reason ) will not avoid the Dispensation in the present Case of the Vintners .

For by the same reason dispensations to Corporations , and their Successors , would be void in all Cases , as well as in this ; for their persons and numbers must be equally unknown to the King , in every Case , as in the present Case .

That a dispensation may be granted to a Body Corporate or Aggregate , as well as to private persons . Suarez de Legibus , which Mr. Attorney cited in this Case , and is in truth a most learned Work , is very express .

Suarez de Legibus l. 6. c. 12. f. 416. Dispensatio autem per se primo versari potest circa personam privatam , quia solum est particularis exceptio à Communi Lege ; potest etiam ferri circa communitatem aliquam quae sit pars majoris communitatis , sicut uni Religioni , Ecclesiae aut Civitati conceditur privilegium , per quod excipitur à Lege Communi . Potest etiam concedi toti communitati pro uno Actu , vel pro certo tempore per modum suspensionis . This last must be understood where the Dispensator is the intire Law-maker .

And accordingly Dispensations are as frequently granted by the Pope , from whom the use of Dispensations was principally derived to us , to Bodies Corporate , that is , to religious Orders , as to private persons , Laertius Cherubinus his Bullarium . as is apparent in the Bullaries , if any will consult them ; but I forbear citing them , because they are Forreign Authorities .

2 R. 3. f. 11 , 12. 1 H. 7. f. 2 , 3. E. 3. licens'd the Citizens of Waterford in Ireland , their Heirs and Successors , to carry their Staple Merchandise to what parts they pleased beyond the Seas , being bound under great penalties by Act of Parliament , to bring them to the Staple . And the Iudges twice assembled 2 R. 3. & 1 H. 7. made no question of the Kings Dispensation , but the Question was because later Laws of Henry the Sixth's time had enacted the bringing of Irish Merchandise to the Staple at Calice .

Regist. ad quod damnum , f. 252. b. The King may licence an Aggregate Body Corporate , and their Successors , to damm up an ancient Current of the Sea through their Land for carriage by water to a Vill , and that such passage and carriage shall be by a new Current , as commodious , as appears by a Writ of Ad quod damnum in the Register , in the Case of the Prior and Covent of Christ-Church in Canterbury , which is a Body Corporate .

The like licence may be to such Body Corporate , and their Successors , Regist. f. 254. b to bring the Water-course of a Well for the use of that Community , as by like Writ of Ad quod damnum appears in the Case of the Prior and Covent of K. for diverting such a Water-course for the use of their House .

And by another like Writ , Regist. f. 255. a in the Case of the Fraternity of Fryers Minors , for diverting of a Water-course , or part of it , to serve the House of the Fraternity .

And so a Licence may be to a Corporation to stop up a High-way through their Land , a more commodious being by them set out in place of it , as is common in the Cases of particular persons .

And in all these Cases , the benefit of the Licence is to every particular person of the Corporation , more than to the Body Politique .

And these are not Licences where the King hath an Inheritance , unless all High-ways and Water-courses be accounted the Kings Inheritance .

The like Dispensation or Exemption the King may grant to a Corporation that they shall be Toll-free , which extends to every man , and not to the Corporation only in their Corporate Capacity .

And a Dispensation and Exemption differ in sound only ; for a Dispensation is properly to licence a person to do a thing which he can do , but is by a Law penally prohibited from doing it .

An Exemption is properly to licence a man , or men , not to do a thing which they are penally by a Law precepted to do .

Edward the Third granted to the Bailiffs , Mayor , 4 H. 6. f. 6. and Burgesses of Oxford , that none of them should be sworn in Iuries with Forreigners that were not of the Town .

The like Grant was made to the Commonalty and Citizens of Norwich by Edward the Fourth , 21 E. 4. f. 56. that they should not be put in Iuries out of the Town of Norfolk . These are Dispensations or Exemptions to a Corporation , and their Successors , that none of them should serve in Iuries but within their Corporation , which otherwise by the Law they must have done : And the like we meet with daily to other Towns in the Circuits .

Now if it shall be said , That High-ways , the Water-streams , Tolls of Markets , Fines of Jurors , and the like , are the Kings Inheritance as well as his Customes are ; and therefore the King , as to them , may dispense with Corporations , Then

It is clear , That penal Laws ( the breach of which enables no man to an Action for his damage thereby ) and the forfeiture and punishment for breaking them are much more the Kings Inheritance .

Therefore , ex concesso , the King may dispense with Corporations as to them .

Pl. Com. f. 487 Nicholls C. 2. The King cannot dispense in any Case , but with his own Right , and not with the Right of any other . And every Right of the Crown is its Inheritance or Interest : Therefore where the King can dispense at all , he hath an Inheritance or Interest , and consequently where he can dispense at all , he may dispense to a Corporation .

If the Laws of 7 E. 6. and 12 Car. 2. had been penn'd thus , Every man that sells Wine contrary to this Act , shall pay the King Two pence for every pint so sold ; this Two pence had been a Duty and Inheritance to the King , as his Customes are , without difference ; and as the Duty of Six pence lately was upon every quart of French Wine retail'd . Why then , the greater or less the Duty be , alters not the nature of the King's Inheritance in the Duty .

Therefore if the Acts had been , That every seller of Wine , contrary to the Act , should pay the King Five pounds for every pint sold , there Five pounds had equally been the King's Duty and Inheritance , as the Two pence before ; and there had been no restraint to sell , but what was made by payment of so great a Duty to the King ?

Secondly , The Acts so penn'd had equally hindred the selling of Wine , as now they do by words , prohibiting sale upon forfeiture of Five pounds ; for in both Cases the payment of Five pounds , whether by Forfeiture or Duty , is that which only prevents the selling .

Therefore the Laws were the same in effect , either way penn'd ; and consequently the Forfeiture of Five pounds given , as the Acts stand penn'd , is equally the King's Inheritance , as if it had been given by way of Duty .

In the next place I will shew what Dispensations or Licences are , as I conceive , unquestionably good to Corporations , and their Successors .

1. A Licence to purchase in Mortmain , which none can have but a Corporation or single Body Politique .

2. A Licence to make a Park , Chase , or Warren in their own Ground , which the Law prohibits to be done without licence .

3. A Licence to convert some quantity of their ancient Arable Land into Pasture , which was prohibited by the Acts of 4 H. 7. 5 Eliz. and divers other Laws , 4 H. 7. c. 19. most of which were repeal'd in 21 Jac. which is not material , as to the Question in hand . And that is an Offence also at the Common Law , and I remember it proceeded against as such , tempore Ca●●● . 1. in the Star-Chamber , after the Repeal of most of the Statutes prohibiting it .

4. A Licence to convert part of their Wood-land into Arable , 35 H. 8. c. 17. contrary to the Statute of 35 H. 8. and contrary also to the Common Law .

I have a Note of a Charter of King John , to an Abbot and his Covent , by which they had Licence , Nemora sua pertinentia Domui suae redigere in culturam .

5. A Licence to erect some Cottages upon their Waste , or other Lands , 31 El. c. 7. contrary to the Statute of 31 Eliz. c. 7.

6. A Licence to erect a Fair or Market .

7. A Licence to an Abbot and his Covent , Pl. Com. Grendons C. to appropriate a Rectory .

In all these Cases the King hath no knowledge of the persons themselves , or of their number , to whom he grants his Licence or Dispensation ; Therefore that can be no reason to avoid the Charter of the Corporation of Vintners .

A Dispensation or Licence properly passeth no Interest , nor alters or transfers Property in any thing , but only makes an Action lawful , which without it had been unlawful . As a Licence to go beyond the Seas , to hunt in a mans Park , to come into his House , are only Actions , which without Licence , had been unlawful .

But a Licence to hunt in a mans Park , and carry away the Deer kill'd to his own use ; to cut down a Tree in a mans Ground , and to carry it away the next day after to his own use , are Licences as to the Acts of Hunting and cutting down the Tree ; but as to the carrying away of the Deer kill'd , and Tree cut down , they are Grants .

So to licence a man to eat my meat , or to fire the wood in my Chimney to warm him by , as to the actions of eating , fireing my wood and warming him , they are Licences ; but it is consequent necessarily to those Actions that my Property be destroyed in the meat eaten , and in the wood burnt , so as in some Cases by consequent and not directly , and as its effect , a Dispensation or Licence may destroy and alter Property .

Trin. 2. Jac.

To the Presidents of Wright versus Horton , & alios .

Of Norris versus Mason , Trin. 2 Jac. Both which were the same Cases with the present , upon the Letters Patents of Queen Elizabeth , the Ninth of her Reign , to the Vintners of London .

Of Young versus Wright . Mich. 12 Car. 2.

No Answer hath been given , but that which is none , viz. That the two first Judgments were without Argument , which is not essential to a Judgment ; and Judgments are frequently given when the Cause is conceiv'd clear ( as it seems these were conceiv'd ) if there were no Argument , which is but a Non liquet .

The Answer to the last President is , That the Judgment upon the Roll is torn off . That some of the Judges are living who gave the Judgment , and many more who know it to have been given .

Other Presidents of Licences to Corporations .

6 H. 8. 1.

A Special Licence to the Fraternity of Corvisors , London , to exercise their Callings , notwithstanding a penal Statute to the contrary , 1 R. 3.

1 E. 6. 4.

Inhabitantibus in Com. Norf. & Civitat . Norwic. authoritat . barganizare pro Lanis , non obstante Statuto 37 H. 8.

2 E. 6. 3.

Mercatoribus de Venice Licenc . Special . emere in aliquo Com. hujus regni Angl. 500 Saccas Lanarum , ac illas operare , & sic operat . in partes exteras , & transmarinas carriare absque impedimento , non obstante Statut. 4 H. 7.

7 E. 6. 6.

Mercatoribus transeuntibus Licenc . asportare pecun . contra formam Statuti .

1 E. 6. 7.

Johanni Gale Mil. Licenc . pro omnibus suis servis sagittare in vibrell . non obstante Act. Parliament . Cons. Tho. Com. South .

2 R. 3. 1.

A Proclamation dispensing with a penal Statute touching Cloth-making , 1 R. 3.

9 Eliz. 3.

Henr : Campion & al. Brasiator . de Lond. & Westm. licenc . retinere alienos in servitiis suis .

27 H. 8. 2.

Major . Civitat . Heref. Licenc . perquirere terram ad Annuum valorem 40 Marcarum , non obstante Statuto .

36 Eliz. 3.

Ballivis , &c. de Yarmouth , magna Licenc . transportare 40000 quarter . frument . & gran. infra 10 Ann.

26 Eliz. 7.

President . &c. Mercatorum Hispaniae & Portugal . infra Civitat . Cestr . Licenc . transportare 10000 Dickers of Leather per 12 Ann.

1 M. 2.

Mercatoribus de le Stillyard , Licence for three years to Export any manner of Woollen Cloth , at 6 l. and under , unrowed , unbarbed , and unshorn , without forfeiture .

1 M. 11.

Mercatoribus periclitan . a Licence to transport all manner of Woollen Cloth , non obstante Stat.

Roberto Heming & alios , Licence to sell Faggots within London and Westminster , non obstante Stat.

2 Jac. 22.

A Licence to the Gun-makers of London to transport Guns .

4 Eliz. 2.

A Licence to the Mayor , &c. of Bristoll , that they may lade and unlade their Ships , &c. of their Goods , and lay the same on Land , and from Land to transport them , Non obstante Statut.

6 Eliz. 11.

Mercatoribus Periclitan . Licence to transport their Merchandises in strange Ships , Non obstante Statut.

5 Car. 1.

Mercatoribus de le East-Indies , Licence to transport 10000 l. in English Gold .

Objections against the Patent 9 Jac.

Obj. 1 That by this Patent every Freeman of London , and of the Corporation of Vintners , which freedom the City and Corporation gives to whom they please , is dispens'd with . So in effect the City of London and Corporation of Vintners give Dispensation to sell Wine , The Case of penal Laws , Seventh Rep. Answ. 1. which by Law none but the King can grant , as is resolved in the Seventh Report .

The King Incorporates a Town by name of Mayor and Burgesses , with power to the Burgesses annually to choose a New Mayor , Brook . Commission , n. 5. and grants that every Mayor , at the end of his Majoralty , shall be a Justice of the Peace in that Corporation : It is no Inference , because the Burgesses elect the Mayors , that therefore they make Justices of Peace , for they are made so by the King 's Great Seal , and not by them . The Case is in Brook , Title Commission , N. 5.

Nor is that Case of penal Laws so generally true perhaps , if not understood where the King governs in person , and not by his Lieutenant , as in Ireland , or by Governours , as in the Plantations of the Western Islands .

The City of London grants Dispensations in this Case , no more than the Burgesses make Justices of the Peace in the other .

Obj. 2 Another Objection made , is , That the King cannot dispense with a man to buy an Office contrary to the penal Statute of 5 E. 6. nor with one Simoniacally presented to hold the Living , nor with any of the House of Commons not to take the Oath of Allegiance , according to the Statute 7 Jac. c. 6. nor to Sue in the Admiralty for a Contract on the Land , contrary to the Statute 2 H. 4.

First , It is against the known practise since the Statute of Answ. 1 7 E. 6. That the King cannot dispense for selling of Wine , for that Objection reaches to Dispensations with single Persons as well as Corporations .

2. The reason why the King cannot dispense in the Cases of Answ. 2 buying Offices and Simoniacal Presentations , is because the persons were made incapable to hold them : and a person incapable is as a dead person , and no person at all as to that wherein he is incapable : For persons entred in Religion , and dead in Law , were not to all purposes dead , but to such wherein they were incapable to take or give .

3. A Member of the House of Commons is by 7 Jac. persona Answ 3 inhabilis , . and not to be permitted to enter the House before the Oath taken . A particular Action is given by 2 H. 4. for such Suit in the Admiralty , and such Licence gives the Admiralty a Iurisdiction against Law , 4 & 5 P. M. Dyer 159. Domingo Belatta's Case .

A third Objection was , That this general Dispensation answers Obj. 3 not the end and intention of the Act of 7 E. 6. but seems to frustrate and null that Law wholly : And though the King can dispense with penal Laws , yet not in such manner , as to annihilate and make them void .

If this Objection held good in fact , it is a material one ; Answ. 1 but the Act of 7 E. 6. intended not that no Wine should be sold , nor that it should be with great restraint sold , but not so loosly as every man might sell it . And since it is admitted that the Act of 7 E. 6. restrains not the King's power to licence selling Wine ( which perhaps was more a Question than this in hand ) it is clear the King may licence , as if the Act had absolutely prohibited selling Wine , and left it to the King to licence as he thought fit , not abrogating the Law . And if so ,

The end of the Act being only that every man should not Answ. 2 sell Wine that would , as they might when the Act was made , and not to restrain convenient numbers to sell for the Kingdoms use .

The King could not better answer the end of the Act , than to restrain the sellers to Freemen of London .

To the Corporation of Vintners , men bred up in the Trade , Answ. 3 and serving Apprentiships in it .

And that such should be licenc'd without restraint , is most agreeable to the Laws of the Kingdom , which permits not persons , who had served Seven years to have a way of livelyhood , to be hindred from exercising their Trades in any Town or part of the Kingdom , Taylors of Ipswich C. Report 11. as was resolved in the Taylors of Ipswich Case , in the Eleventh Report . And therefore the King had well complyed with the ends of the Law , had he licenced such to sell in any part of the Kingdom , which he did not , but confined them to Towns .

Obj. 4 It hath been said to the Case of Licences to Corporations for purchasing in Mortmain ,

That the Laws against Mortmain are not penal , because they may be dispens'd with without a Non obstante , and so cannot penal Laws be .

Answ. 1 It is durus sermo that those Laws are not penal which give the forfeiture of the Land .

2. By the Statute of 1 H. 4. c. 6. and 4 H. 4. c. 4. the King is restrained in some Cases from granting as he might at the Common Law .

Therefore without a Non obstante of those Laws , it cannot appear that the King would have granted it if he had been appris'd of those restraining Laws : Therefore a Non obstante in such Case is requisite . But when a man might , by the Common Law , purchase without licence , as in the Case of Mortmain , before the prohibiting Statutes , or might Export or Import a prohibited Commodity before restraint by Statute , a Licence ex specialia gratia is sufficient without a Non obstante : For by petitioning for a Licence , the King is sufficiently informed the Law permits not the thing without a Licence ( which is all the use of a Non obstante ) . This enough appears by the Case in Dyer 269. where a Licence , ex speciali gratia , is good without issuing any Ad quod damnum in the Case of Mortmain .

3. The Writ of Ad quod damnum in that Case , which regularly issues , informs the King better than a Non obstante would do .

Obj. 5 Next , it hath been said in the Case of Mortmain , the King dispenseth only with his own Right , and concludes not the mean Lords .

It is true , for the King in no case can dispense but with his own Right , and not with anothers .

Answer hath been offered to the President of Waterford , by Obj. 6 which the King dispens'd with the Offence of not bringing the Staple Merchandise from Ireland to Calais , being so penal , which was an Offence by 10 H. 6. c. and 14 H. 6. c. to the universal hurt of the Kingdom , and therefore much greater than selling of Wine contrary to the Statute of 7 E. 6. c. but that was as hath been said ,

Because those Merchants were to pay Custome to the King , which was his Inheritance , and with which he could dispense .

Answ. This put together sounds thus , The Merchants of Waterford were to pay Customes to the King for their Staple Merchandise , for which he might dispense if he would , but never did , for any thing appears : The Merchants of Waterford were , upon penalties , to bring their Staple Merchandise to Calais , with which the King could not dispense , had no Customes been due from them , yet he did dispense with them for that which he could not , viz. bringing their Goods to Calais , because he did not dispense with them for that which he could , viz. their Customes , there is no Inference nor Coherence in this Answer .

But it also appears by the Statute 27 E. 3. c. 11. of the Staple for the reason therein given , that the Merchants of Ireland were to pay their Customes in Ireland , and to bring their Cockets of their payments there to the Staple , lest otherwise they might be doubly charg'd .

Therefore the Customes which were paid in Ireland before the Goods brought to the Staple , was no cause for dispensing with the Corporation of Waterford for not bringing their Merchandise to the Staple , according to the penal Laws for that purpose . The Licence of Edward the Third , pleaded by the men of Waterford , was perhaps after the Statute of 27 E. 3. when they were not to pay their Customes at the Staple ; but however , the Licences by them pleaded , 1 H. 7. by Henry the Sixth , and Edward the Fourth , were long after they were to pay their Customes in Ireland , and not at the Staple .

I must say as my Brother Atkins observed before , That in this Case the Plaintiffs Council argue against the Kings Prerogative , for the extent of his Prerogative is the extent of his Power , and the extent of his Power is to do what he hath will to do , according to that , ut summae potestatis Regis est posse quantum velit sic magnitudinis est velle quantum potest ; if therefore the King have a will to dispense with a Corporation , as it seems K. James had in this Case , when the Patent was granted , but by Law cannot , his Power , and consequently his Prerogative , is less than if he could .

1. Malum prohibitum is that which is prohibited per le Statute : Per le Statute is not intended only an Act of Parliament , but any obliging Law or Constitution , as appears by the Case : For it is said , The King may dispense with a Bastard to take Holy Orders , or with a Clerk to have two Benefices , with cure ; which were mala prohibita by the Canon Law , and by the Council of Lateran , not by Act of Parliament .

2. Many things are said to be prohibited by the Common Law , and indeed most things so prohibited were primarily prohibited by Parliament , or by a Power equivalent to it in making Laws , which is the same , but are said to be prohibited by the Common Law , because the Original of the Constitution or prohibiting Law is not to be found of Record , but is beyond memory , and the Law known only from practical proceeding and usage in Courts of Justice , as may appear by many Laws made in the time of the Saxon Kings , of William the First , and Henry the First , yet extant in History , which are now received as Common Law . So if by accident the Records of all Acts of Parliament now extant , none of which is elder than 9 H. 3. ( but new Laws were as frequent before as since ) should be destroyed by fire , or other casualty , the memorials of proceeding upon them found by the Records in Iudicial proceeding , would upon like reason be accounted Common Law by Posterity .

3. Publique Nusances are not mala in se , but mala politica & introducta , though in some passages of Coke's Posthuma's they are termed mala in se , because prohibited at Common Law , which holds not for the reasons before given : For liberty of High-ways strangers have not in Forreign Territories , but by permission , therefore not essential to Dominion , because it may be lawfully prohibited . 2. Liberty of the High-ways is prohibited with us in the night , by the Statute of Winchester , in some seasons of the year , and in times of warr , and for apprehension of Thieves in time of Peace , &c. The Assise of Bread and Ale is constituted by Statute , and may be taken away . Forestalling the Market and ingrossing hath like institution ; the first was prohibited by Athelstans Laws and William the First 's , and may be permitted by a Law ; the second is allowed by the late Laws when Corn is at a certain low price , quaere the Law tempore Car. 2. the pulling down of Bridges wholly , or placing them in other places , may be done by a Law ; and what may be , or not be , by a Law , is no malum in se , more than any other prohibitum by a Law is .

Judgment was given by the Advice of the Judges in the Kings Bench , Quod Quaerens nil Capiat .

In a formedon in the Reverter . Mich. 25 Car. II. C. B. Rot. 253. John Bole Esquire , and Elizabeth his wife , and John Ely Gent. and Sarah his wife , Demandants , against Anne Horton Widow , Tenant of _____

The Writ . ONe Messuage , Thirty Acres of Land , Fifteen Acres of Meadow , Twenty Acres of Pasture , and of the third part of One Messuage , One hundred and forty Acres of Land , Four and forty Acres of Meadow , Eighty three Acres of Pasture with the Appurtenances in Tickhill and Wellingly , which William Vescy Gent. Grand father of the said Elizabeth and Sarah , whose Coheirs they are , gave to John Vescy , during the life of the said John , and after the decease of the said John , to the heirs males of the body of the said John begotten , and for default of such issue to Robert Vescy , and the heirs males of his body begotten , and for default of such issue to William Vescy , son of the said William the Grandfather , and to the heirs males of his body begotten , and for default of such issue to Matthew Vescy , and the heirs males of his body begotten : And which , after the death of the said John , Robert , William the Son , and Matthew to the said Elizabeth and Sarah , Cosins and Coheirs of the said William the Grandfather , that is to say Daughters and Coheirs of the said John , Son and Heir of the said William the Grandfather , ought to revert by form of the said gift , for that the said John , Robert , William the Son , and Matthew , are dead , without heirs males of their bodies lawfully begotten : Then counts that

The Count. William the Grandfather was seis'd of the Premisses in demand in his Demesne , as of Fee , and held the same in Soccage of the late King Charles , as of his honour of Tickhill in the said County , in free Soccage by fealty only , and so seis'd the Eight and twentieth day of November , 1628. at Tickhill aforesaid , made his last Will in writing , and thereby devised the said Lands to the said John Vescy for life , and after to the heirs males of his body begotten : And for default of such issue , to Robert Vescy , and the heirs males of his body ; and for default of such issue , to William Vescy the Son , and the heirs males of his body ; and for default of such issue , to Matthew Vescy , and the heirs males of his body ; and after the Six and twentieth of December , 1628. at Tickhill aforesaid , died so seis'd . And the said John , after his death entred , and was seis'd by force of the said gift , and died so seis'd without heir male of his body .

After the death of John , Robert entred by vertue of his said Remainder , and was seis'd accordingly , and so seis'd , died without heir male of his body , after whose death William entred by vertue of his said Remainder , and was seis'd accordingly ; and he being so seis'd , Matthew died without heir male of his body , and after the said William died seis'd of the premisses without heir male of his body : After the death of which William the Son , for that he died without heir male of his body begotten , the right of the Premisses reverts to the said Elizabeth and Sarah , who , together with their said Husbands , demand as Cosens and Coheirs of the said William the Grandfather , that is to say , Daughters and Coheirs of the said John , Son and Heir of the said William the Grandfather , and which after the death of the said John , Robert , William , and Matthew , for that they died without any heir male of their bodies , ought to revert to them .

The Tenant Anne for Plea saith , That the said William , The Barr. whose Cosens and Coheirs the said Elizabeth and Sarah are , by his Deed dated the Seventh of November , 1655. in consideration of a marriage to be solemnized between him and Anne the now Tenant , then by the name of Anne Hewett , and of 1200 l. marriage Portion , and for a Ioynture for the said Anne , and in satisfaction of all Dower , she might claim out of his Lands . And for setling the said Lands upon the issue and heirs of the said William , to be begotten of her the said Anne

Infeoffed James Lane and John Lane Gentlemen , of the said Premisses , Habendum to them , their heirs and assigns for ever , To the use of the said William Vescy the Feoffer and his assigns , for term of his life , without impeachment of Waste , and after to the use of the said Anne the Tenant ( if the Marriage succeeded between them ) for term of her life for her Joynture , and after her decease to the use of the heirs males of his body on her body begotten forever ; and for want of such issue to the use of the heirs females of him the said William Vescy upon her body begotten ; and for want of such issue , to the use of the right heirs of him the said William Vescy ; And bound him and his heirs to warrant the premisses as aforesaid , to the said Feoffees and their Heirs , to the uses aforesaid .

By vertue whereof , and of the Statute of Uses , the said William was seis'd for term of his life , with the Remainder over as aforesaid : And after the said marriage was had and solemnized between him and the Tenant Arine .

That William died so seis'd without any issue of his body , and Anne surviv'd him , and entred , and by vertue of the said Feoffment and the Statute of Uses , is seis'd in her Demesne as of Freehold for term of her life .

And that the said warranty of the said William descended from him to the said Elizabeth and Sarah , as Cosins and Coheirs of him the said William the Son , that is to say , Daughters and Coheirs of John Vescy , Brother and Heir of the said William the Son , and demands Iudgment if against the said Warranty the Demandants shall be received to demand , and avers her self , and Anne Hewett named in the Feoffment , to be the same person .

The Replication . The Demandants reply , and confess the Feoffment to uses of William , as is pleaded in Barr to Lane and Lane , and their heirs , with warranty : But further say , That the said William Vescy the Son , after , that is the Four and twentieth of December , 14 Car. 2. at Tickhill aforesaid , died without any issue of his body , which they are ready to aver , and demand Iudgment if they shall be barred of their Action against the said Anne by the said Feoffment and warranty .

The Rejoynder . Anne the Tenant rejoyns that the Replication is insufficient , and demurs thereupon .

The matter of the Replication is all set forth in the Defendants Plea in Barr , but only the time of William Vescy's death , which was not material , upon which the Demandants ought to have demur'd , and not to have replyed impertinently .

The Case upon the Pleading .

William Vescy seis'd of the Land in question in his Demesne , as of Fee , held of King Charles the First , in free Soccage , as of his Honour of Tickhill , by his last Will and Testament devis'd the same to John Vescy his eldest Son , and the heirs males of his body ; and for default of such to Robert Vescy , and the heirs males of his body ; and for default of such to William Vescy his Son , and the heirs males of his body ; and for default of such to Matthew Vescy , and the heirs males of his body , and died . Then John entred , and died seis'd without issue male , leaving two daughters , Elizabeth and Sarah , now Demandants , together with their Husbands .

After his death Robert entred , and died seis'd , without issue male .

Then William entred , and was seis'd , and Matthew , in the life of William , died without issue male ,

William , by his Deed Indented in Consideration of an intended marriage with Anne the now Tenant , and for other Considerations , infeoffed James Lane and John Lane , Habendum to them and their Heirs , to the use of William the Feoffor , for term of his life , and after to the use of Anne Hewet , now the Tenant , for her life ; then to the use of the heirs males of his body upon her begotten ; and for default of such , to the use of the heirs females of his body on her begotten ; and for default of such , to the use of his right Heirs : And bound him and his Heirs to warrant to the said Feoffees and their Heirs .

William , by vertue of the said Feoffment , and of the Statute of Uses , was possessed , and after he married the now Tenant , and died seis'd , as of his Freehold , without any issue of his body .

After his death , Anne his wife , now Tenant , by vertue of the said Feoffment and Statute of Uses , entred and was posssessed .

Against whom , Elizabeth and Sarah , Daughters and Coheirs of John Vescy , and Cosins and Coheirs of William the Devisor , bring their Formedon in the Reverter .

Anne , the Tenant in possession , would rebutt and barr them by the said warranty of William Vescy the Son , whose Cosins and Coheirs they are ( videlicet ) the Daughters and Coheirs of John , eldest Brother of the said William .

And whether the said Anne , Tenant by the said Feoffment and Statute of Uses , can rebutt them by the said warranty , is the general Question ?

For Resolution of which I must make these previous Questions .

The first is , If before the Statute of 27 H. 8. to Vses , Tenant in tayl had made a Feoffment in Fee to uses with warranty to the Feoffees and their Heirs , such Feoffees , in a Formedon in the Reverter , brought against them by the Heirs of the Donor , could have rebutted and barr'd them by the warranty of the Tenant in tayl ?

For if the Feoffees to use in such case could not have barr'd the Heirs of the Donor before the Statute by the warranty , it is evident the Cestuy que use , since the Statute , cannot barr them ; for he can have no more power since the Statute , than the Feoffees to use had before the Statute by the warranty .

I put the Case before the Statute , for clearness sake only ; for though since the Statute there are Feoffees to use as before , yet no question can be made upon their rebutter by a warranty , because the Estate is out of them by the Statute as soon as it is in them .

And as to this , the Case in effect is no more than , Whether the warranty of Tenant in tayl ( which must be admitted to be a Collateral warranty ) descending upon the Donor , or his Heirs , will barr him or them of the Reversion .

The second Question I make , admitting the Heirs of the Donor to be barr'd by the warranty of Tenant in tayl , descending upon them , is , Whether after the Statute of Uses , the Cestuy que use can have any benefit of the warranty granted to the Feoffees to use , either by way of Voucher or Rebutter ? Because the Cestuy que use is not in possession in the per by the Feoffees , but by the Statute of Uses .

The third Question is , admitting generally that the Cestuy que use shall have benefit of the warranty made to the Feoffees to use , Whether yet in this Case , Anne the Tenant being a Cestuy que use , shall have benefit of the warranty made to the Feoffees ? Because neither William , the first Cestuy que use , nor his Heir , the last Cestuy que use , in the Case could , nor can have any benefit of this warranty , because William , the first Cestuy que use , nor his Heir , could not , nor can warrant to himself ; but as to William and his Heirs , the warranty is clearly extinct .

The Argument .

And as to the first Question , I conceive the Law to be that the warranty of William , the Tenant in tayl , descending upon Elizabeth and Sarah the Demandants , his Heirs at Law , is no barr in the Formedon in Reverter brought by them , as Heirs to William their Grandfather , the Donor , though it be a Collateral warranty .

I know it is the perswasion of many professing the Law , That by the Statute of Westminster the second , De donis conditionalibus , the Lineal warranty of Tenant in tayl shall be no barr in a Formedon in the Descender , but that the Collateral warranty of Tenant in tayl is at large , as at the Common Law unrestrain'd by that Statute .

Sir Edward Coke , in his Comment upon Section 712. Sect. 712. of Littleton , A lineal warranty doth not bind the right of an Estate tayl , for that it is restrain'd by the Statute de donis Conditionalibus : And immediately follows , A lineal warranty and assets is a barr of the right in tayl , and is not restrain'd .

But the reason why the warranty of Tenant in tayl , with Assets , binds the right of the Estate tayl , is in no respect from the Statute de donis , but is by the Equity of the Statute of Glocester , by which the warranty of Tenant by the Courtesie barrs not the Heir , for the Lands of his Mother , if the Father leave not Assets to descend in recompence .

And therefore it was conceived , after the Statute de donis was made . That if Tenant in tayl left Assets to descend in Fee-simple , his warranty should bind the right of the Issue in tayl by the equity of that preceding Statute of Glocester .

Whereas if the Statute of Glocester had not been , the Lineal warranty of Tenant in tayl had no more bound the right of the Estate tayl by the Statute de donis , with Assets descending , than it doth without Assets .

For the better clearing therefore of the Law in the Case in question , I shall preparatorily assert some few things , and clear what I so assert , without which the truth of the Conclusion I hold , will not appear so naked to the Hearers as it should .

Ass. 1. The first is , That at the Common Law the distinction of a lineal and collateral warranty was useless and unknown : For though what we now call a Collateral and a lineal warranty might be in speculation and notionable at the Common Law , as at this day a Male warranty , or a Female warranty may be , yet as to any effect in Law , there was no difference between a Lineal warranty and a Collateral ; but the warranty of the Ancestor descending upon the Heir , be it the one or the other , did equally bind . And this , as it is evident in it self , so is it by Littleton , whose words are ,

Litt. Sect. 697. Before the Statute of Glocester , all warranties which descended to them , who are Heirs to those who made the warranties , were barrs to the same Heirs to demand any Lands or Tenements against the warranties , except the warranties which commence by disseisin .

Therefore , if a Question had been at the Common Law only , Whether in some particular Case the Ancestors warranty had bound the Heir ? It had been a sensless Answer to say it did , or did not , because the warranty was Lineal or Collateral , for those warranties were not defined at the Common Law , nor of use to be defined : But the proper Answer had been , That the warranty did bind the Heir , because it commenc'd not by disseisin for every warranty of the Ancestor , but such descending upon the Heir did bind him .

So if after the Statute of Glocester , Tenant by the Courtesie had aliened with warranty , had it been demanded , if the Heir were barr'd by that warranty , it had been an absurd Answer , That he was not , because it was a Collateral warranty of his Father , without Assets : For all Collateral warranties of the Father were not restrained , but his warranty in that Case which could be no other than Collateral ) was restrained by the Statute . Therefore

The adequate Answer had been , That the Fathers warranty bound not in that Case , without Assets , because the Statute of Glocester had so restrained it .

My second Assertion is , Ass. 2. That the Statute de Donis restrains not the warranty of Tenant in tayl from barring him in the Remainder in tayl by his warranty descending upon him .

1. For that the mischief complained of , and remedied by the Statute , is , That in omnibus praedictis casibus therein recited , post prolem suscitatam habuerunt illi quibus Tenementum sic conditionaliter datum fuit hucusque potestatem alienandi Tenementum sic datum , & exhaeredandi exitum eorum contra voluntatem Donatoris . But the warranty of the Donee in tayl descending upon him in the Remainder , who regularly claims by purchase from the Donor , and not by descent from the Donee in tayl , could be no disinheriting of the Issue of the Donee , claiming by descent from him , against which disinheriting only the Statute provides , which is evident by the Writ of Formedon in the Descender , framed by the Statute in behalf of such Issue of the Donee , whom the Statute intends .

2. The Statute did not provide against Inconveniences or Mischiefs which were not at the time of making the Statute , but against those which were . But at the making of it there could be no Remainder in tayl , because all Estates , which are Estates tayl , since the Statute , were Fee-simples Conditional before the Statute , upon which a Remainder could not be limited .

So is Sir Edward Coke in his Comment upon the Statute de Donis , The Formedon in Reverter did lye at Common Law , Cok. part. 2. f. 336. but not a Formedon in Remainder upon an Estate tayl , because it was a Fee-simple Conditional , whereupon no Remainder could be limited at Common Law , but after the Statute it may be limited upon an Estate tayl , in respect of the Division of the Estates .

3. The Statute formed a Writ of Formedon in the Descender for the new Estate tayl created by the Statute , and mentions a Formedon in the Reverter , as already known in the Chancery ; for the Donor , for whom the Statute likewise intended to provide , but formed or mentioned none for the Remainder in tayl .

And the Cases are common in Littleton , Litt. Sect. 716 , 718 , 719. and in many other Books , that the warranty of Donee in tayl is Collateral to him in the Remainder in tayl , and binds as at the Common Law .

But thence to conclude , That therefore the warranty of the Donee in tayl shall barr the Donor of his Reversion , because it is a Collateral warranty also , is a gross Non sequitur ; for the Donees warranty doth not therefore barr the Remainder , because it is a Collateral warranty , but because the Statute de Donis doth not restrain his warranty from barring him in the Remainder , as hath been clear'd , but leaves it as at Common Law , but it doth restrain his warranty from barring him in the Reversion , as shall appear .

There is one Case in Littleton remarkable for many Reasons , where the warranty of Tenant in tayl is lineal , and not collateral , to the person in Remainder , and therefore binds not if the Case be Law ( as may be justly doubted ) as Littleton is commonly understood .

Litt. Sect. 719. Land is given to a man , and the heirs males of his body , the Remainder to the heirs females of his body ; and the Donee in tayl makes a Feoffment in Fee with warranty , and hath Issue a Son and a Daughter , and dieth , this warranty is but a lineal warranty to the Son to demand by a Writ of Formedon in the Descender ; and also it is but lineal to the Daughter to demand the same Land by a Writ of Formedon in the Remainder , unless the Brother dieth without Issue male , because she claimeth as Heir female of the body of her Father engendred . But if her Brother release to the Discontinuee with warranty , and after dye without Issue , this is a collateral warranty to the daughter , because she cannot conveigh the right which she hath to the Remainder , by any means of descent by her brother .

1. Here the warranty of the Father , Donee in tayl , is but lineal to the Daughter in Remainder in tayl ; But she claims , saith the Book , her Remainder as heir female of the body of the Donee in tayl , which differs the Case from other persons in Remainder of an Estate tayl : But of this more hereafter .

2. And by the way , in this Case Sir Edward Coke , though he hath commented upon it , hath committed an over-sight of some moment , by using a Copy that wanted a critical emendation : For where it is said , That the warranty of the Father is but lineal to the Daughter , to demand the Land by a Formedon in the Remainder , unless the Brother dye without Issue-male , because she claims as Heir female of the body of her Father . By which reading and context the sense must be , That if the Son dye without Issue male of his body , then the warranty of the Father is not lineal to the Daughter , cujus contrarium est verum , for she can claim her Remainder as heir female of the body of her Father , and thereby make the Fathers warranty lineal to her , but only because her Brother died without Issue male .

That which deceived Sir Edward Coke to admit this Case as he hath printed it , was a deprav'd French Copy thus , Si non frere devyast sans Issue male , which truly read , should be , Si son frere devyast ; and the Translation should be , Not unless the Brother dye without Issue male , but , If her Brother dye without Issue male .

Another reason is that his French Copy was deprav'd , Because the French of it is , Si non frere devyast sans Issue male , which is no Language , for that rendred in English , is , Vnless Brother dye : For it cannot be rendred as he hath done it , unless the Brother dye , without the French had been , Si non le frere devyast , and not Si non frere devyast .

Sir Edward Coke's first Edition of his Littleton , and all the following Editions , are alike false in this Section . I have an Edition of Littleton in 1604. so deprav'd , which was long before Sir Edward Coke publisht his ; but I have a right Edition in 1581. which it seems Sir Edward Coke saw not , where the Reading is right , Si son frere devyast sans Issue male : Therefore you may mend all your Littletons , if you please , and in perusing the Case , you will find the grossness of the false Copies more clearly than you can by this my Discourse of it .

And after all , I much doubt whether this Case , as Littleton is commonly understood , that is , That this lineal warranty doth not bind the Daughter without Assets descending , be Law , my Reason is , for that no Issue in tayl is defended from the warranty of the Donee , or Tenant in tayl , but such as are inheritable to the Estates intended within that Statute , and no Estates are so intended but such as had been Fee-simples Conditional at the Common Law .

And no Estate in Remainder of an Estate tayl , that is of a Fee Conditional , could be at Common Law .

All Issues in tayl , within that Statute , are to claim by the Writ there purposely formed for them , which is a Formedon in the Descender , not in Remainder .

3. A third thing to be cleared , is , That the Statute de Donis did not intend to preserve the Estate tayl for the Issue , or the Reversion for the Donor absolutely against all warranties that might barr them , but only against the Alienation , with , or without warranty of the Donee and Tenant in tayl only ; for if it had intended otherwise , it had restrain'd all Collateral warranties , of any other Ancestor , from binding the Issue in tayl , which it neither did , nor intended , though well it might , such warranters having no title .

4. The Statute de Donis did not intend to restrain the Alienation of any Estates , but Estates of Inheritance upon Condition expressed or implyed , such as were Fee-simples Conditional at Common Law ; And therefore if Tenant for life aliened with warranty which descended upon the Reversioner , such Alienation or Warranty were not restrained by this Statute , but left at Common Law .

1. Because the Estate aliened was not of Inheritance upon Condition within that Statute .

2. He in the Reversion had his remedy by entring , for the forfeiture upon the Alienation , if he pleas'd , which the Donors of Fee-simples Conditional could not do .

These things cleared , I think it will be most manifest by the Statute de Donis , and all ancient Authority , That the warranty of Tenant in tayl , though it be a Collateral warranty , will not barr the Donor , or his Heir , of the Reversion .

After the Inconvenience before recited , That the Donees disinherited their Issue against the form of the Gift ; then follows ,

Et praeterea cum deficienti exitu de hujusmodi Feoffatis , Tenementum sic datum ad donatorem vel ad ejus haeredes reverti debuit per formam in Charta de dono hujusmodi expressam , licet exitus , si quis fuerit obiisset per factum tamen , & Feoffamentum eorum quibus Tenementum sic datum fuit sub conditione exclusi fuerunt , hucúsque de Reversione eorundem Tenementorum quod manifeste fuit contra formam doni .

Hitherto the Inconveniences and Mischiefs which followed the Issue of the Donees , and to the Donor , when they fail'd by the Donees power of Alienation , are only recited in the Statute , without a word of restraint or remedy .

The follows the remedy and restraint in these words only , and no other .

Propter quod Dominus Rex perpendens quod necessarium , & utile est in praedictis casibus ( which comprehends both Inconveniences ) apponere remedium , Statuit quod voluntas donatoris secundum formam in Charta Doni sui manifeste expressam de caetero observetur , ita quod non habeant illi quibus Tenementum , sic datum fuit sub conditione potestatem alienandi Tenementum , sic datum quo minus ad exitum illorum quibus Tenementum sic fuerit datum , remaneat post eorum obitum , vel ad donatorem , vel ad ejus haeredes , si exitus deficiat , revertatur . Per hoc quod nullus sit exitus omnino vel si aliquis exitus fuerit , & per mortem deficiet , haerede de corpore hujusmodi exitus deficiente .

1. By these words the Donee or Tenant in tayl is restrained from all power of alienation , whereby the Lands intail'd may not descend to the Heir in tayl after his death .

Therefore ,

By these words he is restrained from alienation with warranty , which doubtless would hinder the Land so to descend , if it were not restrained by the words of the Statute .

2. By the same words the Donee in tayl is restrained from all power of alienation , whereby the Lands intail'd may not revert to the Donor for want of Issue in tayl .

Therefore ,

By those words he is restrained from such alienation with warranty , whereby the Lands may not revert to the Donor , or his Heirs , for want of Issue in tayl .

For the same words of the Statute must be of equal power and extent to restrain the Donees alienation from damaging the Donor , as from damaging the Issue in tayl . Otherwise

3. Words in an Act of Parliament , That A. should have no power to hurt the right of B. nor the right of C. must signifie that A. shall have no power to hurt the right of B. but shall have some to hurt the right of C. which is that A. by his warranty shall not harm B. but may by his warranty harm C.

4. If it be said , The Statute restraining not the alienation by warranty , as to the Issue in tayl , the Issue would have no benefit by the Statute ; For it is as easie for the Donee or Tenant in tayl to alien with warranty ( and so to deprive the Issue of all benefit of the Statute ) as to alien without warranty .

But his warranty can seldom descend upon the Donor , and therefore cannot be so hurtful to him as to the Issue in tayl . How doth this satisfie the equal restraint of the Statute from harming the Donor , or the Issue in tayl ? For ,

This Logick and Reasoning is the same as to say , A. by express words is restrained from beating B. or beating C. but A. hath more frequent opportunities of beating B. than of beating C. Therefore the same words restrain A. from beating B. at all .

But not from beating C. when opportunity is offered .

5. In the next place , admit the words of restraint in the Statute de donis had been , Rex Statuit quod voluntas donatoris in Charta doni sui expressa de cetero observetur , ita quod non habeant illi quibus Tenementum , sic fuit datum sub Conditione potestatem alienandi Tenementum sic datum per Warrantiam , vel aliter , quo minus ad exitum eorum remaneat vel ad donatorem revertatur .

It had then been clear to every understanding , That the warranty of the Donee or Tenant in tayl , by the express words of the Statute , did neither barr the Donor , nor the Issue in tayl ( for words more express were not inventable to restrain the Donees warranty from barring them ) and then observe what consequents had been rightly deduc'd from such restraint made by the Statute .

The Statute expresly restrains the warranty of Tenant in tayl from barring his Issue , whence it follows , That by the Statute the Issue in tayl is not barr'd by the Lineal warranty of Tenant in tayl , because his warranty upon the Issue in tayl cannot possibly be any other than a Lineal warranty .

It might be said in like manner , the Statute de donis restrains the warranty of Tenant in tayl from barring the Donor , or his Heir of the Reversion , the consequent thence deducible had been , That the Statute had restrain'd the Collateral warranty of Tenant in tayl from barring the Donor , or his Heirs ; because his warranty falling upon the Donor , or his Heir , could be no other than a Collateral warranty .

Now it is true , the word ( warranty ) is not in syllables within the restraint of the Statute , but is necessarily implyed in it , else the Issue in tayl would be barr'd by the warranty of Tenant in tayl , without Assets , contrary to all the Current of our Books from the making of the Statute .

But those general words of the Statute restraining the Donees power of alienation in express terms , equally & pari passu for the benefit of the Donor , as for the benefit of the Issue in tayl , can never be understood to restrain the warranty of Tenant in tayl only for the benefit of the Issue in tayl , but not at all for the benefit of the Donor , but the Statute must necessarily restrain his warranty indefinitely from hurting either , and by consequent his Lineal warranty is restrained from hurting the Issue , and his Collateral warranty from hurting the Donor , to whom his warranty can never be but Collateral , as it can never be but Lineal to the Issue in tayl .

And if it be necessarily understood and implyed in the Statute , the operation must be the same as if it had been syllabically inserted in the Statute .

Then to say by the restraint of the Statute , the Donees have not power to alien the Land intayl'd , quo minus ad exitum illorum remaneat post eorum mortem ; but they have power to alien quo minus ad donatorem revertatur deficiente exitu , is to make the Statute contradictory to it self ; which saith ,

Non habeant de caetero potestatem alienandi quo minus ad exitum illorum remaneat vel ad donatorem , vel ejus haeredes revertatur deficiente exitu .

6. Again , if the Statute had provided only for indempnity of the Issue in tayl , omitting the Donor and his Heirs , by the words , Non habeant de caetero potestatem alienandi quo minus Tenementum sic datum ad exitum illorum remaneat post obitum eorum . The Donees warranty had been restrain'd ( as it is ) to barr the Issue .

And if it had only provided for the Indempnity of the Donor and his Heirs , omitting the Issue , by the words , Non habeant potestatem alienandi quo minus Tenementum sic datum ad Donatorem vel ad ejus haeredes revertatur deficiente exitu , must not his warranty have been restrain'd from barring the Donor and his Heirs in like manner ?

Why then the restraint reaching to both ( Issue and Donor ) must not both have like benefit of it ?

And for further Answer to that thin Objection , That the Statute did not provide against the Donees warranty , falling on the Donor or his Heirs , because it can fall on them but seldome , and that Laws provide against ills quae frequentius accidunt .

It is true , when the words of a Law extend not to an inconvenience rarely happening , and do to those which often happen , it is good reason not to strain the words further than they reach , by saying it is casus omissus , and that the Law intended quae frequentius accidunt .

But it is no reason , when the words of a Law do enough extend to an inconvenience seldom happening , that they should not extend to it as well as if it happened more frequently , because it happens but seldom . For ,

By that Reason , if Lands be given to a man , and the Heirs of his body , his warranty should not barr the Issue in tayl within the meaning of the Statute , because there his warranty must always fall upon the Issue in tayl ; but if given to him , and the Heirs females of his body , it should barr , because it falls less frequently upon such Heir female , which is absurd .

7. The Statute further commands , That the Donors Will be observ'd , according to the form of his Gift expressed in his Charter , which was that if the Donee died without Issue , the Land should retorn to the Donor or his Heirs . Therefore such alienation is forbid which hinders the retorn of it according to the Charter , and consequently alienation with warranty is forbid .

I add , That the makers of the Statute well understood the use of restraining the Donees warranty from hurting the Donor , or the Issue in tayl , but not possibly the use of restraining his Lineal or Collateral warranty , which were terms then useless and unknown , and therefore not in their prospect at all .

I shall now a little resume my former reasoning , for more clearing of this point .

If immediately after the Statute de Donis , Tenant in tayl had made a Feoffment in Fee with warranty , which descended upon the Issue in tayl , if it had been demanded , Whether that warranty barr'd the Issue in a Formedon in the Descender , it had been an unintelligible Answer to have said in that Age , That it did not barr the Issue in tayl , because it was a Lineal warranty ; for that had been to answer an Ignotum per multò ignotius , than which nothing is more irrational .

But the clean Answer had been , That the Donees power of Alienation was restrained in general by the Statute de Donis , and therefore his Alienation by warranty , and consequently his warranty , could not barr the Issue in tayl .

In like manner if Tenant in tayl had been with the Remainder over , soon after the Statute ( as then it might be ) and he had made a Feoffment in Fee with warranty , and dyed , and the warranty had descended upon him in the Remainder .

If it had been demanded then , Whether that warranty did barr him in the Remainder ? It had been an Answer not to be understood to have said , That it did barr him , because it was a Collateral warranty .

But the right Answer had been , That it was the warranty of the Ancestor , descending upon the Heir , and was not restrained within the Statute de Donis , and therefore must bind him in the Remainder of Common Course .

So as the Doctrine of the binding of Lineal and Collateral warranties , or their not binding , is an Extraction out of mens brains , and Speculations , many scores of years after the Statute de Donis .

And if Littleton ( whose memory I much honour ) had taken that plain way in resolving his many excellent Cases in his Chapter of warranty , of saying the warranty of the Ancestor doth not bind in this Case , because it is restraind by the Statute of Glocester , or the Statute de Donis , and it doth bind in this Case , as at the Common Law , because not restrain'd by either Statute ( for when he wrote there were no other Statutes restraining warranties , there is now a third 11 H. 7. ) his Doctrine of warranties had been more clear and satisfactory than now it is , being intricated under the terms of Lineal and Collateral ; for that in truth is the genuine Resolution of most , if not of all his Cases : For no mans warranty doth bind , or not , directly , and a priori , because it is Lineal or Collateral ; for no Statute restrains any warranty under those terms from binding , nor no Law institutes any warranty in those terms ; but those are restraints by consequent only from the restraints of warranties made by Statutes .

Objections .

On the other side was urg'd Sir Edward Coke's Opinion upon Sect. 712. of Littleton , and his Comment upon the Statute de Donis ( which is but the quoting of his Littleton ) where his words are ,

The warranty of the Donee in tayl , Cok. Litt. Sect. 712. which is Collateral to the Donor or him in Remainder being heir to him , doth bind them without any Assets : For though the Alienation of the Donee , after Issue , doth not barr the Donor ( which was the Mischief provided for by the Act ) yet the warranty being Collateral , doth barr both of them , because the Act restrains not that warranty , but it remaineth at Common Law .

These words may have a double meaning , though the alienation of the Donee doth not barr the Donor ( which was the Mischief provided for by the Act ) yet the warranty being Collateral doth barr .

If the meaning be , That the warranty is a thing Collateral to the Alienation against which provision was made , and therefore the warranty was not restrained , but the Alienation was .

By the same reason , and in the same words , it may be said , The Alienation of the Donee doth not barr the Issue in tayl ( which was the Mischief provided for by the Act ) yet his warranty , which is a thing Collateral to the Alienation , doth barr , because it remains at Common Law .

So as this Reason concludes equally , That the Lineal warranty of Donee in tayl should barr his issue , as that his Collateral warranty should barr the Donor .

Another meaning of his words may be , having first asserted that the Collateral warranty of the Donee doth barr the Donor descending upon him , and giving the reason of it , he gives no other but this , For though the Alienation of Donee in tayl doth not barr him , yet the warranty , being a Collateral warranty , doth barr him ; which is idem per idem , and the same as if he said , The Collateral warranty of Donee in tayl doth barr the Donor and him in Remainder ; for the warranty being Collateral , doth barr both of them ; which is no reason of his Assertion , but the same Assertion over again . And where it follows , For the Act restraineth not that warranty , viz. the Collateral , no more doth the Act restrain the Lineal warranty in express terms , or by any Periphrasis , more than it doth the Collateral , but restrains all power of Alienation in prejudice of the Issue or Donor , and consequently the power of Aliening with warranty to the hurt of either .

2. The second thing objected was Littleton's own Authority in the same Sect. 712. his words are ,

He that demandeth Fee-tayl by Writ of Formedon in Descender , shall not be barr'd by Lineal Warranty , unless he hath Assets by descent in Fee-simple by the same Ancestor that made the warranty . But saith not he that demandeth Fee-tayl by Formedon in Remainder , shall not be barr'd , quod nota as to the Case , Sect. 719. But Collateral warranty is a barr to him that demandeth Fee , and also to him that demandeth Fee-tayl , without any other descent of Fee-simple . Whence it was concluded , That the Collateral warranty must barr the Donor without Assets , who demands a Fee-simple . But

Littleton's words end not there , but immediately follow , Except in Cases which are restrain'd by the Statutes , in the plural number ; which words taken in , as Littleton's Case is , make his Authority directly for me .

For when Littleton wrote , there were but two Statutes which restrain'd any warranty from binding , as at Common Law , namely the Statute of Glocester and Westminster the second , de Donis ; now there is a third , 11 H. 7. c. 20.

So as those words of Littleton are the same as if he had said , Except in Cases restrain'd by the Statutes of Glocester and Westminster the second , de Donis .

Whence it follows , That by Littleton both Statutes did restrain some Collateral warranties , but the Statute de Donis restrains no other than the Collateral warranty of the Donee descending upon the Donor , it leaving all other Collateral warranties as at the Common Law . Ergo it doth restrain that , which is the solution of the Question , and according to Littleton .

I have examined several Editions of Littleton , and the words are the same in all , Si non in Cases restrained per les Estatutes .

No man will say , that by those words , Except in Cases restrained by the Statutes , Littleton meant Statutes that were not then made , nor perhaps never would be .

For that were to make him say in instructing his Son ( for , and to whom he writ his Books ) what the Law was .

But a Collateral warranty doth bind both for Fee and Fee tayl , except in Cases restrain'd by Statutes , yet to be made , and which perhaps never will be made : Besides the words restrain'd per les Estatutes by the Statutes , always denote Statutes which signally are , and not which are not .

3. The third Objection was from Littleton , Sect. 716. where it is shewed the Collateral warranty of Tenant in tayl doth bind him in Remainder in tayl , which is agreed ; for the Statute de Donis restrains not the warranty of Donee in tayl descending upon him in Remainder , as hath been cleared .

4. The fourth Objection was the Case of 41 Ed. 3. Fitz. tit . Garranty pl. 16. whence it was urg'd as Justice Herles Opinion , and by him spoken .

1. That he was at the making of the Statute de Donis .

2. That the makers of the Statute intended that the Donees warranty should not barr a Donor , stranger in blood to the Donee , but should barr a Donor of kindred to the Donee .

This Case is of no Credit in several respects . For ,

1. The Statute makes no such difference of a Donor stranger , and a Donor privy in blood to the Donee , as is urg'd in that Case .

2. The Statute is , That the Donors will was to be observ'd , expressed in his Charter of Gift ; and if a Donor were privy in blood , yet his will in his Charter might be the same as that of a stranger Donor , and was equally by the Statute to be observed .

3. The warranty of Donee in tayl could never descend upon a stranger Donor , for such could never be his Heir , nor needed any help of the Statute against his warranty .

4. The Donor in Frank-marriage , who might be Cosen to either party married , and must be of kindred to one or both Donees , is expresly named as a Donor , wronged by the Donees alienation in the Statute : Therefore a Donor of the Donees blood was within the remedy of the Statute .

5. Nor could this be Herle's Opinion in 41 E. 2. but in the Context of the Report Finchden saith , Il est dit in terms Comment Herle que fuit un Justic , dit que il fuit al fesanc del Stat. & dit as before .

And for that the name of Herle is written in the Report in large Letters , as the Judges Names use to be , it was mistaken at the Barr , as if the Context had begun , Herle que fuit un Justic dit , which could not then be an Opinion of Herles . For if he were at the making of the Statute de Donis , 13 E. 1. he could not then be less than Four and twenty , or Five and twenty years old , and must have liv'd after until 41 E. 3. above Eighty years . But the truth is , he died in , or soon after , 7 E. 3.

So it is not Herle's Opinion , but Finchden saith , It is said in Terms , that is , of the Year Books , how Herle , who was a Iustice , said , He was at the making of the Statute which was made to redress the Mischief to the Donor , who was a stranger ; And therefore he said that the Donor in the Case being no stranger , he saw no reason why he should not be barr'd , being out of the mischief of the Statute , but gave no Rule , but the Debate was adjourn'd .

Another Reason proving this , is , That it is said , Herle que fuit un Justic , which no Reporter ever said of a Iustice at present , and reporting his Opinion .

What Finchden said is grounded upon what he had heard was said by Herle in former terms . But no such Opinion of Herles appears any where , but the contrary clearly in several places .

The Reporter , at the end of the Case , 7 E. 3. f. 34. Fitz. Garranty p. 44. hath vid. 5 E. 3. Opinion Herle que le warranty le Ten. in tayl , n'est pas barr al donor pour ceo que le statut reherse le mischief quod Donatores fuerunt exclusi de Reversionibus hucusque , & les heires disherit issint à restrainer tiel point fuit le stat. de Donis Conditionalibus , fait quod voluntas donatoris observetur . Here is Herle's own Opinion expresly contrary to what Finchden by hearsay only said it was .

In another Case upon question , Fitz. 7 E. 3. f. 48. p. 46. Whether the warranty of Tenant in tayl barr'd him in Remainder ? Herle saith , Le statute voet que ceux as queux les Tenements sont done , ne eient power de alienation quo minus il descendra al Issue , ou retorn al Donor , & in ceo point le statute voet que le volunt del donor in omnibus observetur mes le statute , ne parle riens de cestuy in le Remainder , and so rul'd .

Here is the Opinion of Herle in another Case , That the warranty of the Donee in tayl barr'd not the Issue in tayl , nor the Donor , by the Statute , but barr'd him in Remainder , as not aided by the Statute .

In a question , Fitz. p. 61. Garranty . 6 E. 3. f. 56. Whether the King were barr'd by the warranty of Tenant in tayl , his Ancestor for a Reversion descended to him , with Assets ? Herle gives his Opinion as known Law then , Vous saves bien que de ley cestuy que demand per Formedon in Reverter , ne serra barr per le garranty , cestuy à que les Tenements fuerunt done in tayl , sil ne eyt per descent tout soit il heire à luy , & le quel Roy ad per descent ou non , ne poiomus enquire . And on this Case Sir Edward Coke makes an Observation , That the King was not bound by a Collateral warranty for the Reversion of an Estate in tayl , no more is any other Donor , by that Case .

So as Sir William Herle's Iudgment , who was then Chief Justice of the Common Pleas in three several years , and several Cases , was directly contrary to what Finchden , 41 E. 3. said it was upon Report .

Besides the contrary of what my Brother Ellis urg'd from this Case , may be thus inferr'd out of it : This Case admits that the Statute restrains the warranty of the Donee from barring some Donor , viz. a Donor stranger in blood , as was said ; for it restrains Alienation without warranty against all Donors , but the Statute did not restrain the Donees warranty from barring such a Donor , for his warranty could never descend upon a stranger , and the Statute did not restrain a thing which could not be : Therefore , ex concesso , the Statute restrained the Donees warranty from barring the Donor of blood to the Donee .

7 E. 3. 34. p. 44. 5. The fifth Objection was a Case 7 E. 3. that Tenant in tayl made a Feoffment in Fee , and died issuless , and the Feoffee rebutted the Donor by the warranty .

This Case rightly understood is not to the purpose , for the Donor was not rebutted by the warranty of Tenant in tayl ( which is the present question ) but by the Donors own warranty .

The Case was , That A. gave Land to W. and E. his wife , Habendum praedictis W. & E. & haeredibus inter se legitime procreatis , and warranted those Tenements to the said W. & E. & haeredibus eorum seu assignatis . The Heir in tayl made a Feoffment in Fee , and died , leaving no Issue inheritable , and the Donor was rebutted in his Formedon in Reverter by his own warranty , having warranted to the Donee , his Heirs and Assigns , and the Feoffee claimed as Assignee . And it was adjudg'd against the Donor after in the same year , as appears 46 E. 3. f. 4. b. and there admitted good Law . 46 E. 3. f. 4. b.

But Sir Edward Coke denies this Case to be Law now , saying , That the warranty determined with the Estate tayl , to which it was first annexed ; and doubtless it did so as to Voucher , but whether as to Rebutter of the Donor , the party rebutting having the Land , though another Estate in it , and deriving the warranty to himself , as Assignee , is not clear .

6. A sixt Objection was made from a Case 27 E. 3. f. 83. of a Formedon in Reverter brought , 27 E. 3. f. 83. pl. 42. and the Deed of Tenant in tayl , Ancestor to the Demandant , shewed forth , but the Book mentions no warranty ; but it is like it was a Deed with warranty , and the Plaintiff durst not demurr , but traversed the Deed , as any would avoid demurring upon the validity of an Ancestor's Deed , when he was secure , there was no such Deed of the Ancestor .

7. 4 E. 3. f. 56. pl. 58. The last Objection was a Case 4 E. 3. f. 56. p. 58. where Tenant in tayl made a Feoffment with warranty , and the warranty descended upon him in the Remainder in tayl , which barr'd him , which is a Case agreed , as before : For the Statute of Westminster the second , provides not at all for h●m in Remainder ; but as to him , Tenant in tayls warranty is left as at Common Law .

In 4 E. 3. a Formedon in the Descender was brought by the Issue in tayl , and the Release of his elder Brother , 4 E. 3. f. 28. pl. 57. with warranty , was pleaded by the Tenant Stoner , who gave the Rule in the Case : Le statute restraynes le power del Issue in tayl , to alien in prejudice of him in the Reversion , by express words and à Fortiori , the power of the Issue in tayl is restrain'd to alien in prejudice of the Issue in tayl .

Whereupon the Tenant was rul'd to answer , and pleaded Assets descended .

Here it was admitted , 10 E. 3. f. 14 , pl. 53. the Issue in tayl could not alien with warranty in prejudice of the Reversioner : And in 10 E. 3. soon after a Formedon in Reverter being brought , and the warranty of Tenant in tayl pleaded in barr . Scot alledg'd the restraint of the Statute as well for the Reversioner as for those claiming by descent in tayl . The same Stoner demanding if the Ancestor's Deed was acknowledg'd , and answered it was ; His Rule was , That the Iudgment must be the same for the Reversioner as for the Issue , in these words , Ore est tout sur un Judgment , which can have no other meaning , considering Scot's words immediately before , that the Law was the same for the Reversioner , as for the Issue in tayl , and Stoner's Opinion in the Case before to the same effect , 4 E. 3.

Objections from Modern Reports .

Moore f. 96. pl. 239. In Moore 's Reports this Case is , A man seis'd of Land , having Issue two Sons , devis'd it to his youngest Son in tayl ; and the eldest Son died , leaving Issue a Son ; the youngest aliened in Fee with warranty , and died without Issue , the Son of the eldest being within age : If this Collateral warranty shall bind the Son within age , without Assets , notwithstanding the Statute of Westminster the second ? was the question ?

And the Opinions of Plowden , Bromley Solicitor , Manwood and Lovelace , Serjeants , and of the Lord Dyer and Catlin Chief Iustice , were clear , That it is a Collateral warranty , and without Assets did barr , notwithstanding his Nonage , for that his Entry was taken away . And this was the Case of one Evans , 12 & 13 of the Queen , as it was reported to me .

This Opinion makes against me , I confess , but give it this Answer .

1. This Case is not reported by Sir Francis Moore , but reported to him , non constat in what manner , nor by whom .

2. It was no Judicial Opinion , for Plowden , Bromley Solicitor , two Serjeants , Manwood and Lovelace , are named for it , as well as Dyer and Catlin , who were then Chief Iustices of the several Courts , which proves the Opinion not only extra-judicial , but not given in any Court .

3. The motive of their Opinion was , because the warranty was Collateral , which is no true reason of the binding , or not , of any warranty .

4. An extra-judicial Opinion given in , or out of Court , is no more than the Prolatum or saying of him who gives it , nor can be taken for his Opinion , unless every thing spoken at pleasure , must pass as the speakers Opinion .

5. An Opinion given in Court , if not necessary to the Judgment given of Record , but that it might have been as well given if no such , or a contrary , Opinion had been breach'd , is no Judicial Opinion , nor more than a gratis dictum .

But an Opinion , though Erroneous , concluding to the Iudgment , is a Judicial Opinion , because delivered under the Sanction of the Judges Oath , upon deliberation , which assures it is , or was , when delivered , the Opinion of the Deliverer .

Yet if a Court give Judgment judicially , another Court is not bound to give like Judgment , unless it think that Judgment first given was according to Law .

For any Court may err , else Errors in Judgment would not be admitted , nor a Reversal of them .

Therefore , if a Judge conceives a Judgment given in another Court to be erroneous , he being sworn to judge according to Law , that is , in his own conscience ought not to give the like Judgment , for that were to wrong every man having a like cause , because another was wrong'd before , much less to follow extra-judicial Opinions , unless he believes those Opinions are right .

The other Case is in Coke , 5 Car. Salvin versus Clerk , in Ejectment upon a special Verdict ; Alexander Sidenham Tenant in tayl to him and the Heirs males of his body , the Reversion to John his eldest Brother , made a Lease for three Lives , warranted by the Statute of 32 H. 8. c. 28. with warranty . And after 16 Eliz. levies a Fine with warranty and proclamations to Taylor , and dies without Issue male , leaving Issue Elizabeth his Daughter , Mother to the Plaintiffs Lessor . In 18 Eliz. the Lease for Lives expir'd . In 30 Eliz. John the elder Brother died without Issue , the said Elizabeth being his Neece and Heir . The Defendant entred , claiming by a Lease from Taylor , and Points entred upon him as Heir to Elizabeth .

A question was mov'd upon a suppos'd Case , and not in fact within the Case , Whether if the Fine had not been with proclamation ( as it was ) and no Non-claim had been in the Case ( as there was ) this warranty should make a discontinuance in Fee , and barr Elizabeth , it not descending upon John after Alexanders death , but upon Elizabeth , who is now also John's Heir , or determined by Alexander's death .

The Judges were of opinion , as the Reporter saith , That the warranty did barr Elizabeth , and consequently her Heir , because the Reversion was discontinued by the Estate for Lives , and a new Fee thereby gain'd , and the Reversion displac'd thereby , and the warranty was annex'd to that new Fee . But this Case is all false , and mis-reported .

1. For that it saith the Lease for Lives was a discontinuance of the Reversion , & thereby a new Fee gain'd to Tenant in tayl , which he passed away by the Fine with warranty , which could not be ; for in the Case it appears the Lease was warranted by the Stat. of 32 H. 8 and then it could make no discontinuance , nor no new Fee of a Reversion could be gain'd , 40 Eliz. Keen & Copes C. 602. pl. 13. and then no Estate to which the warranty was annex'd , and so was it resolv'd 40 El. Keen & Copes Case .

2. That Opinion was extra-judicial , it being concerning a point not in the Case , but suppos'd .

3. That Case was resolv'd upon the point of Non-claim , and not upon this of the warranty , which was not a point in the Case .

4. Some of the Judges therefore spoke not to that point , as appears in the Case .

As to the second Question , Admitting the warranty of Tenant in tayl doth bind the Donor and his Heirs , yet in regard the Defendant , Tenant in possession , cannot derive the warranty to her self , from the Feoffees , as Assignee , or otherwise , Whether she may rebutt the Demandants , or not , by her possession only ? is the question ; and I conceive she may not , as this Case is .

I shall begin with those Authorities that make , and are most press'd against me , which is the Authority of Sir Edward Coke in Lincoln Colledge Case , in the third Report , and from thence brought over to his Littleton , f. 385. a.

His words in Lincoln Colledge Case , f. 63. a. are , He which hath the possession of the Land shall rebutt the Demandant himself , without shewing how he came to the possession of it ; for it sufficeth him to defend his possession , and barr the Demandant , and the Demandant cannot recover the Land against his own warranty . And there he cites several Cases , as making good this his Assertion .

In the same place he saith it is adjudg'd , 38 E. 3. f. 26. That an Assignee shall rebutt by force of a warranty made to one and his Heirs only .

This Doctrine is transferred to his Littleton , in these words , If the warranty be made to a man and his heirs without this word Assignes , yet the Assignee or any Tenant of the Land may rebutt . And albeit no man shall vouch , or have a Warrantia Chartae , either as party Heir or Assignee , but in privity of Estate , yet any one that is in of another Estate , be it by disseisin , abatement , intrusion , usurpation , or otherwise , shall rebutt by force of the warranty , as a thing annex'd to the Land : which sometimes was doubted in our Books , when as in the Cases aforesaid , he that rebutteth claimeth under , and not above the warranty .

I shall clearly agree , no man shall vouch , or have a warrantia Chartae , who is not in in privity of Estate , that is , who hath not the same Estate , as well as the same Land , to which the warranty was annexed : And the reason is evident , because the Tenant must recover if the Land be not defended to him by the warranter , such Estate as was first warranted , and no other , unless a Fee be granted with warranty only for the life of the Grantee or Grantor , in which Case the Grantee , upon voucher , recovers a Fee , though the warranty were but for life .

I shall likewise agree the Law to be as Sir Edward Coke saith in both places , if his meaning be that the Tenant in possession , when he is impleaded , may rebutt the Demandant , without shewing how he came to the possession which he then hath , when impleaded , be it by dissism , abatement , intrusion , or any other tortious way : And for the reason given in Lincoln Colledge Case , That it sufficeth that the Tenant defend his possession : But if his meaning be , that the Tenant in possession need not shew that the warranty ever extended to him , or that he hath any right to it , then I must deny his Doctrine in Lincoln Colledge Case , or in Littleton , which is but the former there repeated to be Law .

For as it is not reasonable a man should recover that Land which he hath once warranted to me , from me , what title soever I have in it at the time when he impleads me .

So on the other side , it is against reason I should warrant Land to one who never had any right in my warranty . And the same reason is , if a man will be warranted by Rebutter , he should make it appear how the warranty extends to him , as if he will be warranted by Voucher , for the difference is no other , than that in the case of Voucher a stranger impleads him in case of Rebutter , the Warranter himself impleads him , and in a Voucher he must make his title appear to be warranted , Ergo in a Rebutter . But he needs not have like Estate in the Land upon a Rebutter as upon Voucher , which is for the reason given of recovering in value .

And the only reason why the person , who is to warrant , impleading the Tenant of the Land , shall not recover , but be rebutted by the warranty , is because if he should recover the Land , the Tenant , who is intitled to the warranty , must recover in value from him again , and therefore to avoid Circuit of Action , he shall not recover , but be rebutted and barr'd , as is most reasonable .

I shall therefore first make it appear by all ancient Authorities , That the Tenant in possession shall not rebutt the Demandant by the warranty , without he first make it appear that the warranty did extend to him as Heir or Assignee .

To prove this are full in the point ,

Hill. 8 E. 3. f. 10. tit garranty pl. 48. New Edit. f. 283. b. num. 28 The Book of 8 E. 3. f. 10. of the Old Edition Hillary Term , tit . Garranty , pl. 48. where upon a great Debate it was rul'd , That the Tenant must shew how he was entitled to the warranty , and how it extended to him , and accordingly did so before his Plea was admitted by way of Rebutter .

10. E. 3. f. 42. b. New Edit. f. 391. b. num. 42 Another Book full in the point , is 10 E. 3. f. 42. b. of the Old Edition , where in like manner the Tenant was forc'd to shew how the warranty extended to him upon Debate : and it is remarkable in that Case , That his shewing the Deed of warranty to him , whose Assignee he was , and the Deed of Assignment to himself was not enough but he was compell'd to plead orally , as the manner then was ; That William , who had the warranty assign'd to him by his Deed there shew'd forth , and the reason given that the Deed of Assignment could not speak and make his Plea , and was but Evidence of the truth of his Plea .

But in that very Case , when it was replyed , That he was not Tenant by the Assignment of William , but by disseisin of the Plaintiff , it was not permitted without traversing the Assignment of William : For if he were once intitled to the warranty , what Estate soever he had when impleaded , he might rebutt , though he could not vouch . Which Case proves fully both my Positions , That a man cannot rebutt without shewing how the warranty extends to him .

2. That so doing , he may , whatever Seisin he hath at that time , be it by Disseisin , or Abatement , &c. or otherwise .

22 Ass. pl. 88. A third Case is , when the Tenant being impleaded , pleaded the warranty of the Demandants Father to one A. and bound him and his Heirs to warrant to A. his Heirs and Assigns , and that he was Assignee of A. and demanded Judgment . In that Case , because he did not plead that he was Assignee of A. by Deed , the Plea was disallow'd ( which since hath been thought not necessary ) but à fortiori if he had pleaded no Assignment at all from A. by Deed , or without Deed , to intitle him to the warranty , his Plea had been necessarily disallowed .

My next Assertion is , That the Tenant in possession setting forth how the warranty extends to him , needs not set forth by what Estate or Title he is in possession .

To this I shall cite three Books full in the point . 6 E. 3. f. 7. old Edit. new Edit. 6 E. 3. f. 187 Num. 16. 10 F. 3. f. 42. cited before old Book . 45 E. 3.

But in all these Cases it is to be noted , That the Tenant rebutting , though he was in possession of another Estate than that to which the warranty was annex'd ; yet constantly shew'd how the warranty was deriv'd to him , which Sir Edward Coke observ'd not , either in Lincoln Colledge Case , or his Littleton , but cites in Lincoln Colledge Case the Case of 45 E. 3. 45 E. 3. f. 18. and some others I shall mention after , to shew a man may rebutt , being in of another Estate than that which was warranted , which is true , but not without intitling himself to the warranty .

That the Law of rebutting stands upon the difference I have taken , besides the Authorities urg'd , will be evident for these Reasons .

As a warranty may be created , so may it be determin'd or extinguish'd various ways .

1. It may be releas'd , as Littleton himself is Sect. 748. 2. It may be defeasanc'd , as Sir Edward Coke upon that Sect. 748. 3. It may be lost by Attainder , Sect. 745. 4. It may be extinguish'd by Re-feoffment of the warranter or his Heirs , by the Garrantee or his Heir .

In all these Cases , if the warranty be destroy'd , it cannot be rebutted ; for there cannot be an accident to a thing which is not , and rebutting is an accident incident to a warranty : And therefore if the warranty have no being , there can be no rebutter .

Why then admit A. warrants Land to B. and his Assigns , during the life of B. after B. releases this warranty to A. and then Assigns to C. C. is impleaded by A. and pleads generally that A. warranted to B. for his life , and that B. is still living , if C. could rebutt A. by this manner of pleading , without shewing when B. assigned to him , so to derive the benefit of the warranty to himself , A. could never have benefit of the Release of the warranty , because it could not appear whether the warranty were releas'd before or after the assignment ; if before , then the warranty is gone , and cannot be rebutted , but if after , it may .

So if A. binds him and his Heirs to warrant to B. his Heirs and Assigns , B. dyes , his Heir releases the warranty , and dies , and then the Heir of the Heir assigns : The Tenant is impleaded by A.

If he may rebutt by his bare possession without shewing how the warranty extended to him , A. can have no benefit of his Release before any assignment was made ; for the Demandant cannot be suppos'd to know the time of the assignment , and consequently cannot know how to plead the Release , until the time of the assignment appear , which is most consonant in reason with the Authorities before urg'd .

Another reason is , That constantly , in elder times , when the Tenant pleaded a warranty to rebutt , he concluded his Plea , that if he were impleaded by a stranger , the Demandant was to warrant him , which could not be without shewing how the warranty extended to him ; for he was not to warrant him , if impleaded by a stranger ; because he had possession of the Land only .

Sir Edward Coke in Lincoln Colledge Case , cites the Book of 38 E. 3. f. 26. as adjudg'd to prove that the bare possession of the Land is sufficient for the Tenant to rebutt , for that the Assignee may rebutt a warranty made only to a man and his Heirs : If that were so , it were to his purpose ; but there is no such Case in 38 E. 3. f. 26. but the Case intended is 38 E. 3. f. 21. and he quotes the folio truly in his Littleton .

But the Case is not , That an Assignee may rebutt , or have benefit of a warranty made to a man and his Heirs only , but that a warranty being made to a man , his Heirs and Assigns , the Assignee of the Heir , or the Assignee of the Assignee , though neither be Assignee of the first Grantee of the warranty , shall have like benefit of the warranty , as if he were Assignee of the first Grantee , which hath been often resolv'd in the old Books .

To the same purpose he cites a Case out of 7 E. 3. f. 34. & 46 E. 3. f. 4. which doth but remember that of 7. as adjudg'd , That the Assignee of Tenant in tayl might rebutt the Donor ; whence he infers , as before , that the Tenant in possession might rebutt without any right to the warranty : But the Inference holds not from that Case .

The Case of 7 E. 3. was , That Land was given in tayl , and the Donor warranted the Land generally to the Donee , his Heirs and Assigns , the Donee made a Feoffment in Fee , and died without Issue ; and the Donor impleading the Feoffee was rebutted , because he had warranted the Land to the Donee , his Heirs and Assigns , and the Feoffee claimed as Assignee of the Donee , and therefore rebutted , not because he had a bare possession . But this Judgment of 7 E. 3. Sir Edward Coke denies ( and perhaps justly ) to be Law now , because the Estate tayl being determin'd to which the warranty was first annex'd , the whole warranty determin'd with it .

But however , the Case no way proves what it is alledg'd for in Lincoln Colledge Case , That a man may rebutt without ever shewing the warranty extended to him , for the Feoffee did in that Case shew it : So in the Case 45 E. 3. f. 18. the Feme , who rebutted , shew'd she was Grantee of the warranty .

To this may be added , That what is delivered , as before , in Lincoln Colledge Case , is neither conducing to the Judgment given in that Case , nor is it any Opinion of the Judges , but is Sir Edward Coke's single Opinion , emergently given , as appears most clearly in the Case .

To conclude ,

When the Feoffees were seis'd to the use of William Vescy for his life , and after to the use of the Defendant , his wife , for her life , and after to the use of the right Heirs of William Vescy .

And when by Operation of the Statute of 27 H. 8. the possession is brought to these uses , the warranty made by William Vescy to the Feoffees and their Heirs , is wholly destroy'd .

For if before the Statute the Feoffees had executed an Estate to William for life , the Remainder to his wife for life , the Remainder to his right Heirs .

The warranty had been extinguish'd by such Execution of Estate , and releas'd in Law , for it could be in none but in William and his Heirs , who could not warrant to himself , or themselves . By Littleton Sect. 743. for his Heirs , in such Case , take not by Purchase , but Limitation , because the Freehold was in him with a Remainder over to his right Heirs , and so hath as great an Estate in the Land as the Feoffees had , and then the warranty is gone by Littleton . Litt. Sect. 744.

And now the Statute executes the possession in the same manner , and the warranty is in none , for the time present or future , but extinct : If the warranty had been to the Feoffees , their Heirs and Assigns , it might have been more colourably question'd , Whether the mean Remainder were not an Assignee of the Feoffees , and so to have benefit of the warranty ; but the warranty being to the Feoffees and their Heirs only , no Estate remaining in them , no Assignee can pretend to the warranty .

2. William Vescy could by no possibility ever warrant this Estate to the Defendant during his life , and where the warranty cannot possibly attach the Ancestor , it shall never attach the Heir , as by Littleton's Case : If a man deviseth Lands in Fee to another with warranty , for him and his Heirs , his Heirs shall not be bound to the warranty , because himself could never be .

And though in that Case the Estate to be warranted , commenc'd after the death of the Warranter , and here the Remainder to the wife is in being before his death , yet the reason differs not ; for himself could no more warrant this by any possibility than that , and his Heir might as equally warrant the Estate devis'd , as this .

Next Justice Jones in Spirt and Bences Case , cites a Case 7 Eliz. the same with this Resolution , resolved in the Common Pleas , That the mediate Remainder could not be warranted .

In this Case , if the Feoffees before the Statute had either voluntarily , or by coercion of the Chancery , after the death of the first Cestuy que use for life executed the Estate of the mean Remainder , such person in Remainder could have no benefit of the warranty , being but an Assignee of the Feoffees , because the warranty was only to them and their Heirs .

No more can the person in Remainder here , whose Estate is executed by the Statute , be warranted more than if such Estate had been executed by the Common Law .

There are another sort of persons who may rebutt , and perhaps vouch , who are neither Heirs nor formally Assignees to the Garrantee , but have the Estate warranted , dispositione & instituto Legis , which I conceive not to differ materially , whether they have such Estate warranted by the Common Law , or by Act of Parliament .

The first of this kind I shall name , Ass. p. 9. 35 is Tenant by the Courtesie , who , as was adjudg'd 35 Ass. might rebutt the warranty made to his wives Ancestor ; yet was neither Heir nor formal Assignee to any to whom the warranty was granted ; nothing is said in the Book concerning his vouching , but certainly the wives Heir may be receiv'd to defend his estate , if impleaded by a stranger , who may vouch according to the warranty , or may rebutt , as the Case of 45 E. 3. f. 18. is .

But this difference is observable also , where such a Tenant rebutts , it appears what claim he makes to the warranty , and so the Inconveniences avoided which follow a Rebutter made upon no other reason than because he who rebutts is in possession of the Land warranted .

A second Tenant of this kind is the Lord of a Villain , 22 Ass. p. 37. and therefore the Case is 22 Ass. That Tenant in Dower made a Lease for life to a Villain ( which in truth was a forfeiture for making a greater Estate of Freehold than she had power to make ) and bound her and her Heirs to warranty ; the Lord of the Villain entred upon the Land in her life time , and before the warranty attach'd , the Heir , who had right to enter for the forfeiture , the Mother died , and the Heir entred upon the L. of the Villain , who re-entred , and the Heir brought an Assise . The L. of the Villain pleaded the warranty , and that the Heir , if a stranger had impleaded him , was bound to warrant the Estate , and therefore demanded Judgment if the Heir himself should implead him .

1. It is there agreed , if the warranty had attach'd the Heir before the Lords entry , the Heir had been bound : but quaere .

2. By that Book it seems the Lord , impleaded by a Stranger , might have vouch'd the Heir , if the warranty had attach'd him before the Lords entry .

But in this Case it appears , the Lord was no formal Assignee of the Villains , for this warranty must be as to an Assignee ( for the Estate warranted was but for life ) and the Lords Estate was only by order of the Law .

A third Case of this nature is , Where the Ancestor granted Lands to a Bastard , with warranty ; but how far the warranty extended , as to the Heirs , or Heirs and Assigns of the Bastard , appears not in the Case : the Bastard died without Issue , and consequently without Heir , the L. by Escheat entred , upon whom the Heir entred , the warranty of his Ancestor having not attach'd him before the Bastards death ( for it seems this was in a Case where the Heir might have entred in his Ancestors life time , & so avoided his warranty , as in the former case of the L. of a Villain ) by the Book the warranty having not attach'd him during the Bastards life , the Lord by Escheat could have no benefit of it , but if it had attach'd him , he might ; ut videtur .

In this Case , if the warranty were to the Bastard and his Heirs only , it determined , he dying without Issue , and then there could be no Rebutter or Voucher by the Lord by Escheat , if the warranty had attach'd the Heir ; but if it were to him , his Heirs and Assigns , then the Lord , whose title is by the Act and Disposition of the Law , and not as Assignee in the per had , notwithstanding the benefit of this warranty ; quod nota .

These Cases are mentioned in Lincoln Colledge Case , and in Spirt and Bences Case in Cr. 1. and in both places admitted for Law .

Nor seems this very unreasonable ; That the warranty being an incident to the Estate warranted , should accompany it where the Law dispos'd the Estate and Land warranted to all intents .

2. In many Cases the Law disposing the Estate , if the warranty attended it not , the disposition made by the Law were in vain , for without the warranty the Estate may be necessarily avoided .

Such persons who come to the Estate , dispositione Legis , are not properly in , in the post , but they modally have the Estate by consent , both of the Warranter and Garrantee , because they have it by the Act of Law , Statute or Common , to whose dispose every man is as much consenting , and more solemnly than he is to his own private Deed.

And after this way , if the two last Cases be Law , the Cestuy que use having his Estate by operation and appointment of the Statute of Uses of 27 H. 8. may have the benefit of the warranty attending the Estate , though he be no formal Assignee or Heir to the Feoffees to use .

Many other Estates are of this kind ; as Tenant in Dower , if endowed of all the Land warranted . An Occupant , Tenants by the Statute of 6 R. 2. c. 6. where the Feme consents to the Ravisher . Tenant by 4 & 5 P. M. because the ward consented to her taking away without the Guardians consent . Lands warranted , which after become forfeited to the King , or other Lords , &c.

Quaere in the Cases of 22 Ass. p. 37. & 29 Ass. p. 34. Whether , notwithstanding the warranty had descended upon the Heir , while the Lands were in the possession of the Villain in the first Case , and of the Bastard in the second Case , before any entry made by either Lord , the Lands could have rebutted or vouched by reason of those warranties , being in truth strangers to the warranty , and not able to derive it to themselves any way .

But if after the warranty descended upon the Villain or Bastard , the Villain or Bastard had been impleaded by the Heir , and had pleaded the warranty against the Heir , and had Judgment thereupon by way of Rebutter , then the Lords might have pleaded this Judgment as conclusive , and making the Villains Title , or Bastard , good against the Heir , and the Heir should never have recover'd against the Lords . And this seems the meaning of the Book 22 Ass. p. 37. if well consider'd . Though in Spirt and Bences Case no such difference is observ'd .

Caetera desiderantur .

The Court was in this Case divided , viz. The Chief Justice and Justice Archer for the Demandant , and Justice Wylde and Justice Atkins for the Tenant .