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the council, but from the judges themselves, as an extenuation, or at least an obscuring of the proofs of the usage and practice, in that we show forth no instructions from 17 H. VIII. to 1 Mariæ.

To these six points I will give answer, and, as I conceive, with satisfaction.

For Bristol, I say it teacheth them the right way, if they can follow it; for Bristol was not exempt by any opinion of law, but was left out of the instructions upon supplication made to the queen.

For Cheshire, we have answered it before, that the reason was, because it was not probable that the statute meant to make that shire subject to the jurisdiction of that council, considering it was not subject to the high courts at Westminster, in regard it was a county Palatine. And whereas they said, that so was Flintshire too, it matcheth not, because Flintshire is named in the statute for one of the twelve shires of Wales.

We showed you likewise effectual differences between Cheshire and these other shires: for that Cheshire hath a chancery in itself, and over Cheshire the princes claim jurisdiction, as earl of Chester; to all which you reply nothing.

Therefore I will add this only, that Cheshire went out secundo flumine, with the good-will of the state; and this is sought to be evicted adverso flumine, cross the state; and as they have opinion of four judges for the excluding of Cheshire, so we have the opinions of two great learned men, Gerrard and Bromley, for the including of Worcester; whose opinions, considering it was but matter of opinion, and came not judicially in question, are not inferior to any two of the other; but we say that there is no opposition or repugnancy between them, but both may stand.

For Cholmley's instructions, the words may well stand, "that those shires are annexed by commission;" for the king's commission or instructions, for those words are commonly confounded, must cooperate with the statute, or else they cannot be annexed. But for that conceit that they should come in but in 11, when Cheshire went out, no man that is in his wits can be of that opinion, if he mark it : for we see that the town of Glocester, &c. is named in the instructions of 1 Mar. and no man, I am sure, will think that Glocester town should be in, and Glocestershire out.

For the conceit, that they had but jurisdictionem precariam, the precedents show plainly the contrary; for they had coercion, and they did fine and imprison, which the judges do not upon petitions; and besides, they must remember that many of our precedents, which we did show forth, were not of suits originally commenced there, but of suits remanded from hence out of the king's courts as to their proper jurisdiction.

For Sir John Mullen's case, the rule is plain and sound, that where the law appears contrary, usage

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cannot control law; which doth not at all infringe the rule of "optima legum interpres consuetudo;" for usage may expound law, though it cannot overrule law.

But of the other side I could show you many cases, where statutes have been expounded directly against their express letter to uphold precedents and usage, as 2 and 3 Phil. et Mar. upon the statute of Westminster, that ordained that the judges coram quibus formatum erit appellum shall inquire of the damages, and yet the law ruled that it shall be inquired before the judges of Nisi prius. And the great reverence given to precedents appeareth in 39 H. VI. 3 E. IV. and a number of other books; and the difference is exceedingly well taken in Slade's case, Coke's Reports, 4, that is, where the usage runs but amongst clerks, and where it is in the eye and notice of the judge: for there it shall be presumed, saith the book, that if the law were otherwise than the usage hath gone, that either the council or the parties would have excepted to it, or the judges ex officio would have discerned of it, and found it; and we have ready for you a calendar of judges more than sit at this table, that have exercised jurisdiction over the shires in that county.

As for exception, touching the want of certain instructions, I could wish we had them; but the want of them, in my understanding, obscureth the case little. For let me observe unto you, that we have three forms of instructions concerning these shires extant; the first names them not expressly, but by reference it doth, namely, that they shall hear and determine, &c. within any the places or counties within any of their commissions; and we have one of the commissions, wherein they were named; so as upon the matter they are named. And of this form are the ancient instructions before the statute 17 H. VIII. when the princess Mary went down.

The second form of instructions go farther, for they have the towns, and exempted places within the counties named, with tanquam as well within the city of Glocester, the liberties of the duchy of Lancaster, &c. as within any of the counties of any of their commissions; which clearly admits the counties to be in before. And of this form are the instructions I Mariæ, and so long until 11 Eliz.

And the third form, which hath been continued ever since, hath the shires comprehended by name. Now it is not to be thought, but the instructions which are wanting, are according to one of these three forms which are extant. Take even your choice, for any of them will serve to prove that the practice there was ever authorized by the instructions here. And so upon the whole matter, I pray report to be made to his Majesty, that the president and the council hath jurisdiction, according to his instructions, over the four shires, by the true construction of the statute of 34 H. VIII.

A DRAUGHT OF AN ACT

AGAINST

AN USURIOUS SHIFT OF GAIN, IN DELIVERING COMMODITIES INSTEAD OF MONEY.

commodities, and knowing that it is bought to be sold again, to help and furnish any person, that tradeth not in the same commodity, with money, he shall be without all remedy by law, or custom, or decree, or otherwise, to recover or demand any satisfaction for the said wares or commodities, what assurance soever he shall have by bond, surety, pawn, or promise of the party, or any other in his behalf. And that all bonds and assurances whatsoever, made for that purpose, directly or indirectly, shall be utterly void.

WHEREAS it is an usual practice, to the undoing | tailer, chapman, or known broker of the same and overthrowing many young gentlemen and others, that when men are in necessity, and desire to borrow money, they are answered, that money cannot be had, but that they may have commodities sold unto them upon credit, whereof they may make money as they can in which course it ever comes to pass, not only that such commodities are bought at extreme high rates, and sold again far under foot to a double loss; but also that the party which is to borrow is wrapt in bonds and counter-bonds; so that upon a little money which he receiveth, he is subject to penalties and suits of great value.

Be it therefore enacted, by the authority of this present parliament, that if any man, after forty days from the end of this present session of parliament to be accounted, shall sell in gross sale any quantity of wares or commodities unto such a one as is no re

And be it further enacted, by the authority aforesaid, that every person, which shall after the time aforesaid be used or employed as a broker, mean, or procurer, for the taking up of such commodities, shall forfeit for every such offence the sum of one hundred pounds, the same to be, &c. and shall be farther punished by six months imprisonment, without bail or mainprise, and by the pillory.

A PREPARATION

TOWARD

THE UNION OF THE LAWS

OF ENGLAND AND SCOTLAND.

YOUR Majesty's desire of proceeding towards the | union of this whole island of Great Britain under one law, is, as far as I am capable to make any opinion of so great a cause, very agreeable to policy and justice. To policy, because it is one of the best assurances, as human events can be assured, that there will be never any relapse in any future ages to a separation. To justice, because "dulcis tractus pari jugo:" it is reasonable that communication of privilege draw on communication of discipline and rule. This work being of greatness and difficulty, needeth not to embrace any greater compass of designment, than is necessary to your Majesty's main end and intention. I consider therefore that it is a true and received division of law into jus publicum and pri

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vatum, the one being the sinews of property, and the other of government; for that which concerneth private interest of meum and tuum, in my simple opinion, it is not at this time to be meddled with ; men love to hold their own as they have held, and the difference of this law carrieth no mark of separation; for we see in any one kingdom, which is most at unity in itself, there is diversity of customs for the guiding of property and private rights; "in veste varietas sit, scissura non sit." All the labour is to be spent in the other part; though perhaps not in all the other part; for, it may be, your Majesty in your high wisdom, will discern that even in that part there will not be requisite a conformity in all points. And although such conformity were to be wished, yet

perchance it will be scarcely possible in many points to pass them for the present by assent of parliament. But because we that serve your Majesty in the service of our skill and profession, cannot judge what your Majesty, upon reason of state, will leave and take; therefore it is fit for us to give, as near as we can, a general information: wherein I, for my part, think good to hold myself to one of the parallels, I mean that of the English laws. For although I have read, and read with delight, the Scottish statutes, and some other collection of their laws; with delight, I say, partly to see their brevity and propriety of speech, and partly to see them come so near to our laws; yet I am unwilling to put my sickle in another's harvest, but to leave it to the lawyers of the Scottish nation; the rather, because I imagine with myself that if a Scottish lawyer should undertake, by reading of the English statutes, or other our books of law, to set down positively in articles what the law of England were, he might oftentimes err: and the like errors, I make account, I might incur in theirs. And therefore, as I take it, the right way is, that the lawyers of either nation do set down in brief articles what the law is of their nation, and then after, a book of two columns, either having the two laws placed respectively, to be offered to your Majesty, that your Majesty may by a ready view see the diversities, and so judge of the reduction, or leave it as it is.

Jus publicum I will divide, as I hold it fittest for the present purpose, into four parts. The first concerning criminal causes, which with us are truly accounted publici juris, because both the prejudice and the prosecution principally pertain to the crown and public estate. The second, concerning the causes of the church. The third, concerning magistrates, offices, and courts: wherein falleth the consideration of your Majesty's regal prerogative, whereof the rest are but streams. And the fourth, concerning certain special politic laws, usages, and constitutions, that do import the public peace, strength, and wealth of the kingdom. In which part I do comprehend not only constant ordinances of law, but likewise forms of administration of law, such as are the commissions of the peace, the visitations of the provinces by the judges of the circuits, and the like. For these in my opinion, for the purpose now in hand, deserve a special observation, because they being matters of that temporary nature, as they may be altered, as I suppose, in either kingdom, without parliament, as to your Majesty's wisdom may seem best; it may be, the most profitable and ready part of this labour will consist in the introducing of some uniformity in them.

To begin therefore with capital crimes, and first that of treason.

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Where a man doth compass or imagine the death of the king's eldest son and heir, if it appear by any overt act, it is treason.

Where a man doth violate the king's wife, it is treason.

Where a man doth violate the king's eldest daughter unmarried, it is treason.

Where a man doth violate the wife of the king's eldest son and heir, it is treason.

Where a man doth levy war against the king and his realm, it is treason.

Where a man is adherent to the king's enemies, giving them aid and comfort, it is treason.

Where a man counterfeiteth the king's great seal, it is treason.

Where a man counterfeiteth the king's privy seal, it is treason.

Where a man counterfeiteth the king's privy signet, it is treason.

Where a man doth counterfeit the king's sign manual, it is treason.

Where a man counterfeits the king's money, it is treason.

Where a man bringeth into the realm false money, counterfeited to the likeness of the coin of England, with intent to merchandise or make payment therewith, and knowing it to be false, it is treason.

Where a man counterfeiteth any foreign coin current in payment within this realm, it is treason.

Where a man doth bring in foreign money, being current within the realm, the same being false and counterfeit, with intent to utter it, and knowing the same to be false, it is treason.

Where a man doth clip, wash, round, or file any of the king's money, or any foreign coin current by proclamation, for gain's sake, it is treason.

Where a man doth any ways impair, diminish, falsify, scale, or lighten the king's money, or any foreign moneys current by proclamation, it is treason.

Where a man killeth the chancellor, being in his place and doing his office, it is treason. Where a man killeth the treasurer, being in his place and doing his office, it is treason.

Where a man killeth the king's justice in eyre, being in his place and doing his office, it is treason.

Where a man killeth the king's justice of assise, being in his place and doing his office, it is treason.

Where a man killeth the king's justice of oyer and terminer, being in his place and doing his office, it is treason,

Where a man doth persuade or withdraw any of the king's subjects from his obedience, or from the religion by his Majesty established, with intent to withdraw him from the king's obedience, it is treason.

Where a man is absolved, reconciled, or withdrawn from his obedience to the king, or prom.sein his obedience to any foreign power, it is treason.

Where any Jesuit, or other priest ordained since the first year of the reign of queen Elizabeth, shall come into, or remain in any part of this realm, it is treason.

Where any person being brought up in a college of Jesuits, or seminary, shall not return within six months after proclamation made, and within two

days after his return submit himself to take the oath of supremacy, if otherwise he do return, or be within the realm, it is treason.

Where a man doth affirm or maintain any authority of jurisdiction spiritual, or doth put in use or execute any thing for the advancement or setting forth thereof, such offence, the third time committed, is treason.

Where a man refuseth to take the oath of supremacy, being tendered by the bishop of the diocess, if he be an ecclesiastical person; or by commission out of the chancery, if he be a temporal person; such offence, the second time, is treason.

Where a man committed for treason doth voluntarily break prison, it is treason.

Where a jailor doth voluntarily permit a man committed for treason to escape, it is treason.

Where a man procureth or consenteth to a treason, it is treason.

In treason, no new case not expressed in the statute of 25 Ed. III. nor made treason by any special statute since, ought to be judged treason, without consulting with the parliament.

In treason, there can be no prosecution but at the king's suit, and the king's pardon dischargeth. In treason, the king cannot grant over to any subject power and authority to pardon it.

In treason, a trial of a peer of the kingdom is to be by special commission before the lord high steward, and those that pass upon him to be none but peers; and the proceeding is with great solemnity, the lord steward sitting under a cloth of estate with a white rod of justice in his hand and the peers may confer together, but are not any ways shut up and are demanded by the lord steward their voices one by one, and the plurality of voices carrieth it. In treason, it hath been an ancient use and favour from the kings of this realm to pardon

Where a man relieveth or comforteth a traitor, the execution of hanging, drawing, and quartering; knowing it, it is treason.

and to make warrant for their beheading. The proceeding in case of treason with a common The punishment, trial, and proceedings in cases of subject is in the king's bench, or by commission of

treason.

In treason, the corporal punishment is by drawing on a hurdle from the place of the prison to the place of execution, and by hanging and being cut down alive, bowelling, and quartering: and in women by burning.

In treason, there ensueth a corruption of blood in the line ascending and descending.

In treason, lands and goods are forfeited, and inheritances, as well entailed as fee-simple, and the profits of estates for life.

In treason, the escheats go to the king, and not to the lord of the fee.

In treason, the lands forfeited shall be in the king's actual possession without office.

In treason, there be no accessaries, but all are principals.

In treason, no benefit of clergy, or sanctuary, or peremptory challenge.

In treason, if the party stand mute, yet nevertheless judgment and attainder shall proceed all one as upon verdict.

In treason, bail is not permitted.

In treason, no counsel is to be allowed to the party.

In treason, no witness shall be received upon oath for the party's justification.

In treason, if the fact be committed beyond the seas, yet it may be tried in any county where the king will award his commission.

In treason, if the party be non sanæ memoriæ, yet if he had formerly confessed it before the king's council, and that it be certified that he was of good memory at the time of his examination and confession, the court may proceed to judgment without calling or arraigning the party.

In treason, the death of the party before conviction dischargeth all proceedings and forfeitures.

In treason, if the party be once acquitted, he shall not be brought in question again for the same fact.

oyer and terminer.

MISPRISION OF TREASON.

Cases of misprision of treason.

Where a man concealeth high treason only, without any comforting or abetting, it is misprision of treason.

Where a man counterfeiteth any foreign coin of gold or silver not current in the realm, it is misprision of treason.

The punishment, trial, and proceeding in cases of misprision of treason.

The punishment of misprision of treason is hy perpetual imprisonment, loss of the issues of their lands during life, and loss of goods and chattels.

The proceeding and trial is, as in cases of treason. In misprision of treason bail is not admitted.

PETIT TREASON. Cases of petit treason.

Where the servant killeth the master, it is pelit

treason.

Where the wife killeth her husband, it is petit treason.

Where a spiritual man killeth his prelate, to whom he is subordinate, and oweth faith and obedience, it is petit treason.

Where the son killeth the father or mother, it hath been questioned whether it be petit treason, and the late experience and opinion seemeth to weigh to the contrary, though against law and reason in my judgment.

The punishment, trial, and proceeding in cases of petit treason.

In petit treason, the corporal punishment is by drawing on a hurdle, and hanging, and in a woman burning.

In petit treason, the forfeiture is the same with | do assemble accordingly, and do not depart after the case of felony. proclamation, it is felony.

In petit treason, all accessaries are but in case of

felony.

FELONY.

Cases of felony.

Where a man committeth murder, that is, homicide of prepensed malice, it is felony.

Where a man committeth manslaughter, that is, homicide of a sudden heat, and not of malice prepensed, it is felony.

Where a man committeth burglary, that is, breaking of a house with an intent to commit felony, it is felony.

Where a man rideth armed, with a felonious intent, it is felony.

Where a man doth maliciously and feloniously burn a house, it is felony.

Where a man being the king's sworn servant, conspireth to murder any lord of the realm or any of the privy council, it is felony.

Where a soldier hath taken any parcel of the king's wages, and departed without licence, it is felony.

Where a man receiveth a seminary priest, knowing him to be such a priest, it is felony.

Where a recusant, which is a seducer, and persuader, and inciter of the king's subjects against the king's authority in ecclesiastical causes, or a persuader of conventicles, &c. shall refuse to abjure the realm, it is felony.

Where vagabonds be found in the realm, calling themselves Egyptians, it is felony.

Where a purveyor taketh without warrant, or otherwise doth offend against certain special laws, it is felony.

Where a man hunteth in any forest, park, or war

Where a man doth maliciously and feloniously burn corn upon the ground, or in stacks, it is felony.ren, by night or by day, with vizards or other disWhere a man doth maliciously cut out another's guisements, and is examined thereof and concealeth tongue, or put out his eyes, it is felony. his fact, it is felony.

Where a man robbeth or stealeth, that is, taketh away another man's goods, above the value of twelve-pence, out of his possession, with an intent to conceal it, it is felony.

Where a man embezzleth or withdraweth any of the king's records at Westminster, whereby any judgment is reversed, it is felony."

Where a man that hath custody of the king's armour, munition, or other habiliments of war, doth maliciously convey away the same, to the value of twenty shillings, it is felony.

Where a servant hath goods of his master's delivered unto him and goeth away with them, it is felony.

Where a man stealeth certain kinds of hawks, it is felony.

Where a man committeth forgery the second time, having been once before convicted, it is felony.

Where a man transporteth rams or other sheep out of the king's dominions, the second time, it is felony.

Where a man being imprisoned for felony, breaks prison, it is felony.

Where a man procureth or consenteth to a felony to be committed, it is felony, as to make him accessary before the fact.

Where a man receiveth or relieveth a felon, knowing thereof, it is felony, as to make him accessary

Where a man conjures, or invocates wicked spirits, after the fact. it is felony.

Where a man doth use or practise any manner of witchcraft, whereby any person shall be killed, wasted, or lamed in his body, it is felony.

Where a man practiseth any witchcraft, to discover treasure hid, or to discover stolen goods, or to provoke unlawful love, or to impair or hurt any man's cattle or goods, the second time, having been once before convicted of like offence, it is felony. Where a man useth the craft of multiplication of gold or silver, it is felony.

Where a man committeth rape, it is felony. Where a man taketh away a woman against her will, not claiming her as his ward or bondwoman, it is felony.

Where any person marrieth again, her or his former husband or wife being alive, it is felony. Where a man committeth buggery with a man or beast, it is felony.

Where any persons, above the number of twelve, shall assemble themselves with intent to put down enclosures, or bring down prices of victuals, &c. and do not depart after proclamation, it is felony.

Where a woman, by the constraint of her husband, in his presence joineth with him in committing of felony, it is not felony, neither as principal, nor as

accessary.

The punishment, trial, and proceeding in cases of

felony.

In felony, the corporal punishment is by hanging, and it is doubtful whether the king may turn it into beheading in the case of a peer <r other person of dignity, because in treason the striking off the head is part of the judgment, and so the king pardoneth the rest: but in felony it is no part of the judgment, and the king cannot alter the execution of law; yet precedents have been both ways.

In felony, there followeth corruption of blood, except it be in cases made felony by special statutes, with a proviso that there shall be no corruption of blood.

In felony, lands in fee-simple and goods are forfeited, but not lands entailed, and the profits of estates for life are likewise forfeited: And by some customs lands in fee-simple are not forfeited;

"The father to the bough, son to the plough ;"

Where a man shall use any words to encourage or draw any people together, ut supra, and they as in gavelkind in Kent, and other places.

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