Imágenes de páginas
PDF
EPUB

ing a reasonable fee to the same, and the king's property and royalty in the gift of the said office in perpetuity, shall be tried between Brownlow and Michell in the king's bench, or between Brownlow and the king in chancery?

So here is all this great matter, mutatio fori et partis; and therefore this writ is no dilatory or stay of suit, but the removing of a suit, whereby justice moves on still in a straight line; it giveth the party a better suit in disabling the present suit.

That this is so, you shall find it notably proved in Arden and Darcy's case, 38 Eliz. rot. 1128. which was the latest case of this writ. There when the counsel of Arden alledged that this writ was a delay of justice, and that it was against the statute of 2 E. 3. that the judge should not stay for great seal nor petty seal, and chanted upon this ground; my lord Anderson and the rest of the court stopped that allegation, and said, just as I say now, that to obey this writ is not to delay justice to the subject, but to do justice to the king, and to draw justice to the right way; even as, should I stay and stop the water of the Thames or of a river from going into a by-let or creek, to make it run the better in the right channel, this were no stopping the stream, but guiding it; and I tell you plainly it is little better than a by-let or crooked creek, to try whether the king hath power to erect this office, in an assise between Brownlow and Michell.

So then let it be understood, that this writ is not to gain the king a little time to provide how to make his defence, and so to go on in this court, but plainly an alteration of the suit and of the court. As Mr. Solicitor said prettily, the king saith now to the plaintiff, in me convertite ferrum, nihil iste, nec ausus, nec potuit; Mr. Michell is now no more your adversary, but you must plead with the King. Marry, I differ from Mr. Solicitor in that other point, that he thought the writ had been naught, if it had not the clause donec aliud habueritis in mandatis; for indeed I chose that form as the fairest and most corrected; but I can shew many precedents without it; for it is ever understood, though it be not expressed: for if the suit do fall out against the king in the chancery, then indeed you shall have aliud mandatum, that is a procedendo; but if it fall out for the king in the chancery, then your donec is like the

1

[merged small][ocr errors][merged small]

This writ is the king

not to gain

time, but to

alter the

course.

The king

party, where his right

cometh in question.

donec of the Scripture, donec solvit ultimum dodrantem, that is, never; for you shall never have aliud mandatum, but you shall have iteratum mandatum of a supersedeas omnino. But all this grows upon the same error, that men speak as if this writ were a mere dilatory, for then indeed Mr. Solicitor says well, delays may not be infinite; but this is no dilatory but a directory, I say a direction and reduction of justice from obliquity and circuity into a direct path; that is, to try the king's right in a plea with the king. So much for the discharge of the erroneous conceit of this writ.

back, nor made If Mr. Michell

Now I come to the second point of my first part, which is, that where the king's right is questioned, he must be made must be made party: for this, res ipsa loquitur vel potiùs clamat, the king shall not be surprised, nor stricken upon his accessorium quiddam to the suit of another. pretend to have right to the possession of the office of the supersedeas and fee for the present by the king's grant, and the king pretends to the gift of it afterwards, the king shall not depend upon Mr. Michell's suit, but Mr. Michell upon the king's suit; and although Mr. Michell's right be present, and the king's to come, yet posteriority in the king's case is always preferred: the rule ever holds between the king and the subject, that which is last shall be first, and that is first shall be last. For the books, they do so receive this maxim, and lay it for a law though it be fundamental, and ground infallible, as I will not authorize principles. The best books are 39 E. 3. fol. 12., 31 E. 3. Fitz: aide de roy, pl. 69. 7 H. 4, fo. 18. &c. These books have it, disertis verbis, and in terminis terminantibus, that the king's right shall not be tried, except he be made party; and the judges make a wonder of it, when they are pressed, What would you have us do by the king's right without making him party? But the cases that are not so vulgar, and yet do excellently express this learning, those I think worthy the putting.

The king's right is ever the principal,

last in time.

Aid shall be

where the land is con

veyed hang

ing the suit.

As, first, 12. Assise, pl. 41., the tenant in a præcipe conveyed the land to the king hanging the writ, and thereupon prayed aid of the king; and the court granted it; and two several judgments (saith Brooke') were vouched for it. This is somewhat a strange case, and the hardest case that can be devised or put, of making the king party.

Printed" Choke." See Brooke Aid del Roy, pl. 71., whence I take the reference, which is wrongly given as 12 Ass. pl. 49. I have not generally verified the references, except by the aid of Brooke and Fitzherbert: and I fear there are many errors.

For, first, the relation of the writ avoids all mean conveyances, by maxim.

Again, the act of the tenant ought not to prejudice the demandant, as touching the tenancy, by maxim; and yet, nevertheless, this other maxim which we have now in hand, that the king's right shall not be tried, except he be made party, is stronger than the other two, and in law mates them: but Brooke, like a grave judge, in abridging the case saith, that the king is not in justice tied to give him aid, except he please; which I conceive to be in regard of the mischief of maintenance.

Roy, pl. 88.J

The other case is an excellent case, and gives light by con- [Fitz. ald de traries; and that is the case of 15 H. 7. fo. 10. where the king granted a wardship to J. S. and there was a traverse put into the office, by one that pretended right; and a scire facias went out against the patentee, that had the grant of the wardship of the land, who came in and pleaded his estate by letters patents, and prayed in aid of the king. Saith the court, "Clearly you "shall have no aid; you are at no mischief, for the king is party already, and you may consult with him." So you see plainly, that where the original suit is in the chancery, whereby the king is party already, there the law hath its effect without circuity; and therefore, à contrariis, where he is not originally party, he must be made party.

66

Now for the reason of this, that the king must be made party in a number of cases where a subject, if he were in the like case, should not have aid, but must abide the event of the first suit; it is, no doubt, partly in point of honour, because the law accounts the king's title, where it is connected with the right of the subject, to be the principal; like as in mines gold draws the copper, which is the subject though it be in less quantity; and partly and chiefly for the salvation of the king's rights.

For the king hath a number of privileges and prerogatives in his suits which the subject hath not. Thus his counsel shall be called to it, who are conversant and exercised in the learning of his prerogative, wherein common pleaders, be they never so good, are to seek; and in the pleadings and proceedings themselves of the king's suits, what a garland of prerogatives doth the law put upon them. Again, the king shall be informed of all his adversary's titles;

[ocr errors][merged small]

How the King shall be

the king's plea cannot be double, he may make as many titles as he will; the king's demurrer is not peremptory; he may waive it and join issue, and go back from law to fact:with infinite others. Will you strip the king of all these, and make them as ordained in vain, by questioning his right in a suit between common persons, which have no such privileges? This, indeed, is lasa majestas; for he that will tell me that the king's right shall be tried between J. S. and J. D. I will think him alike of kin to Jack Cade or Jack Straw.

This foundation being laid, that the king must be made nade party. party, then followeth the third point, which is, How he shall be made party?

It follows therefore of itself, ex quâdam necessitate adamantinâ, that the case can be held no longer in the Common Pleas or this Court, for you will not revive old fables (as Justinian calls things of that nature), Præcipe Henrico regi, &c. Præcipe Jacobo regi, &c. That you will not do; and yet it comes to that, if the king should be made a defender in this court, either directly or indirectly, as by aid prayer. Why then it follows that the suit must be in the Chancery, where suits are tried properly, where the king is never upon defence, and where the king's rights or charters are tried likewise properly; for there are petitions of right discussed; there are declarations of right, which we call monstraunces de droit, sued; there are traverses to offices; and there are scire facias brought for repealing letters patents: for you may not come with a queritur against the king, but you must humbly supplicate unto him, or modestly disclose, and lay before him your right, or civilly offer a negative of his right, as it is found. These be the ways that you must proceed in, when you have to deal with the majesty of a king; and for this, without all scruple, the Chancery is the court; the Chancery, I mean, in that capacity where it proceeds as a common law court, and not as a court of equity.

And this you see by all the books shall not be only in the case of a mere suit, where the king is only party; but in a mixed suit, where the king is party together with a subject, as in the case of aid.

Now then, if any man be so subtilely ignorant (for there is a kind of subtile ignorance) as to think that the drawing of the suit into the chancery should be in case of the aid, and not of the plea of rege inconsulto; or in the plea of rege inconsulto,

[merged small][ocr errors][ocr errors]

but not where the writ is brought; he is a stranger to the books, neither doth he advise the consequence of that he says.

For, first, this is a ground that strikes silence into any man, and cannot be replied unto, that whatsoever advantage the king may have upon the prayer of the party, the same or higher he must have upon his own writ; else you expose and abandon the king's rights to the neglect or collusion of the party, and you allow the king to help another and will not allow him to help himself, which is more than absurd; and therefore the ground is sound and certain, that wheresoever you may have the AID or the PLEA, there you shall have the WRIT; but not E CONVERSO: for the king shall not watch with the eyes of the party, but with his own eyes and his counsel's.

Now to come to the authorities: for the aid I will not speak of them, because that is without colour or question; but for the plea, and for the writ, I will shew you plainly and plentifully, that the rule of the court, and the rule, or dismission (as I may term it), of the court, when the king's right is once in question (et dies datus est ad, &c. et iterum sequatur penes ipsum regem, which is ever understood of the Chancery), is not only in case of aid, but is common to the rege inconsulto, either by plea, or by office of court, or by writ.

First, For the plea of judgment si rege inconsulto, you shall find, that although that plea and the aid prayer differ in the conclusion of the party, yet that the act of the court, and that which the court doth thereupon, is the same thing. For it is true, that if the party's state be too feeble to pray an aid, as when he is a copyholder and the like; or, on the other side, where the king's estate is too feeble to bear the nature of an aid, as when the lands are seised in respect of the king's tenant's alienation, whom he licensed, or in respect of the Prior alien or the like; in all these cases the proper and natural conclusion of the party's plea ought to be, petit judicium, si rege inconsulto, &c. and not petit auxilium, &c.: but the effect that follows thereupon is all one; for the court ceaseth, and the rule is, sequatur penes ipsum regem, and the court's hands are closed till a procedendo come. Nay, if you look advisedly into the books, you shall see that that which the court doth upon the rege inconsulto is termed granting of an aid, indifferently and promiscuously, as well as upon the aid prayer itself; for so are the books, which I cite unto you truly and punctually, of 3. Ass.

« AnteriorContinuar »