Imágenes de páginas

pl. 1. 11 H. 4. fo. 39. 27 H. 8. fo. 10. in the which books the conclusion of the plea is, judgment si le roy nient conseil ; and for the act of the court, the books in terminis terminantibus are thus, et pleide fuit et habuit auxilium.

And therefore for Thorpe's opinion, that is in 28. of this book of Assise, fol. 39. Turpin's Case, you must either give it a favourable construction, or else you must bury it, and damn it under a heap of authorities.

The case was, that in an assise the defendant pleaded the charter of K. R. by the words concessimus et dimissimus, and not by dedimus, tenenda by certain services, and not by any rent, and so prayed in aid. Saith Skipwith, the more natural conclusion had been, judgment if the king not consulted with ; which, no doubt, he meant, because there was in the charter neither word dedimus nor any rent: but what was done? The plea was adjourned, et interim suer al Roy, for the book is misprinted B. for R. which is easy to miss in the Dutch letter, for the R. is with the foot turned out, and the B. is with the foot [Aid del Roy, turned in ; but Brooke, in abridging it, hath it plainer, sequatur penes ipsum regem, and the other hath no sense.

pl. 78.]

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Then follows a corollary of Thorpe's, being a kind of voluntary of his own; "There is a great difference between the aid "and the rege inconsulto; for in the aid you must plead to the "king himself, but in the other not." This if Thorpe meant thus, that in the case of the aid the king was in justice bound to take upon him the plea, whereas in the case of the rege inconsulto it is in his pleasure to waive the defence of the suit, and to grant a procedendo, — he saith somewhat; for the aid is the more obligatory to the king: but if he meant, that in the case of the aid the plea shall be discussed in the chancery, and in the case of the rege inconsulto it shall not, but that the king's counsel shall be assigned to the party, and so to go on in the first court; then it is (let me speak with reverence) but about sun-set, for clearly it is no law.

For, first, it is repugnant to the very case itself; for if so, then the court had not concluded sequatur penes ipsum regem, but to have denied the aid.

Secondly, The authorities are infinite against it, which are, beside the cases I vouched before this, 22. Ass. pl. 5. the same year, pl. 7. 39 E. 3. fo. 7. 7 H. 4. fo. 45. Ass. pl. 21. the same year, pl. 18. 45 H. 5. fo. 11. 21 H. 7. fo. 3. and infinite others.

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In all which books, upon the plea of rege inconsulto, the rule and pale of the court is the plea, or de abundant1 suer al roy.

Now for the writ itself: it is the like case, but much stronger. For the writ doth absolutely close the hands of the court; and then the subjects must have a suit that must be private or loyal 2: not private, ergo loyal2; for that the suit should be in private to the king to have a procedendo, absit verbum; for God forbid that, upon the calling of Mr. Attorney or Mr. Solicitor, in the gallery, the king should determine the right of the subject; for wheresoever the law giveth the subject a right, it giveth a remedy in open court legally.


this writ.

It is true the writ, in the present case thereof, admits a sub- Two kinds of
division: the one kind where it is purchased by the party
corroboration of his plea, either of rege inconsulto, or of aid;
the other is a writ which proceedeth from the case of the King's
Attorney, and is substantive in itself, and not induced by the
plea of the party.

I will give you the books of these.
by the plea you have 8. Ass. pl. 16. 22.
pl. 14. 46 E. 3. fo. 19. 35 H. 6. fo. 44.

For the writ induced
Ass. pl. 24. 40. Ass.

For the other writ

you have 21 E. 3. fo. 24. and 1 R. 3. fo. 13. Arden's case.

Now to conclude this part, and to give the court a better light, I will put you the differences between the plea and the writ, which are three.

First, The plea ariseth from the vigilance of the party, to draw on the king to his aid; the writ ariseth from the providence and caution of the king, to save himself, and likewise to protect the party.

Secondly, The plea must come before issue; for you shall never force the king to maintain the issue of the party, but it must come tanquam res integra to him, to take his own issue, as is 7 E. 4. fo.-3; but the writ may come any time before judgment.

And, thirdly, The plea must be grounded upon some record that appears of the king's title, or at least upon some examination of authorities, such as the law allows; and this may be counterpleaded; but the certificate of the writ is peremptory, and not to be counterpleaded. But of that hereafter:

So printed. I do not understand it.

2 So printed. Perhaps law French for "legal."

So printed. But the reference is probably to 5 Ed. 4 fo. 1. See Br. Aid del Roy, pl. 102.

it sufficeth now that I have proved (if law be law) that upon the aid, and upon the plea with the writ, and upon the writ without the plea; I say that, in all these cases, you must sue in the Latin court in chancery, and there plead with the king himself, penes ipsum regem; so that all that troubles us is no more but this, that when Mr. Brownlow goes up Westminster-hall hereafter, he shall turn a little upon his right-hand, and all shall be well.

Now if Mr. Brownlow shall ask me, whether the record itself in this court shall be in all these cases removed into the chancery? or whether a suit de novo? or, what shall be the course? I am not bound to read him a lecture what he shall do: and yet, lest you should be discouraged above measure, and think that it should be in the nature of a petition of right, which is a long suit, I will comfort you with some precedents of a more summary proceeding.

In the time of Philip and Mary, 3. and 4. between Jones and Ecks, in a quare impedit brought by Jones, the suit was stayed upon disclosure of the patronage to be in the king; the rule was given in this manner: Et super hoc dies datus fuit partibus prædictis in Sti. Martini in statu quo nunc; et dictum fuit præfato Willielmo Jones quod sequeretur interim penes dominum regem et dominam reginam: et super hoc prædictus Will. Jones venit coram rege in cancellariâ et petit breve de procedendo; super quo quæsitum fuit ab Ed. Griffith attornato regis generali, qui pro rege in hâc parte sequitur, si aliud pro rege habuit aut dicere scivit, aut potuit, quare dictum breve de procedendo præfato Will. Jones in eâ parte minimè concederetur. Qui quidem Ed. Griffith adtunc et ibidem nihil dixit, aut dicere scivit, aut potuit, quamobrem prædictum breve de procedendo eidem Willielmo in eâ parte non concederetur. And so a procedendo granted. The like record in an action of trespass between Maurice and Hazard, of a house called the White Horse in Lynn Regis, brought in this court, which had been granted by king Hen. 7 to the town of Lynn Regis, with a rent reserved; and sir Gilbert Gerrard called to it in the chancery, and upon his non dicit a procedendo. The like 35 Eliz. between Gascoigne and Pierson, in trespass in this court; the tenement in question was Ontobie; and sir John Brograve called to it, who gave way, and a procedendo.

Now for the minor proposition, Whether the king's title

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come in question? No man can contradict it; for the question will be, Whether Mr. Michell hath disseised Mr. Brownlow of his fee? Mr. Michell must justify the king's letters patents made to him for his life of the office of clerk to write the writs of supersedeas, together with the fees accustomed: then the main question of the title must be, Whether the king may erect this office? and, Whether the king shall have a perpetual inheritance to confer it when it falleth?

So that this is a title of exceeding importance to the king; for the axe is put to the root of the tree, which root hath three strings: first, matter of profit; secondly, matter of power; thirdly, matter of example or consequence.

First, Matter of profit in the gift of this particular office. Secondly, matter of power: thus the question is, Whether the king, being head of justice and judicature, may not in his own courts collect into an office, and make a proper office for that which was vagum quiddam, and loosely and promiscuously executed and done by clerks before? Thirdly, Matter of example or consequence; for this leadeth to the overthrow, at the least, of ten letters patents of like nature already past, enjoyed, and settled, which I will now specify and enumerate unto you.

The patent of subpœnas in the Chancery, which formerly were written by all clerks that writ to that court, and was collected into an office in the 17th year of Queen Elizabeth, and granted to George and Mark Williams.

The subpoenas out of the star-chamber, which both the clerks, under-clerks, and attornies of the court indifferently wrote, were collected into an office, and granted to Cotton, 1 Eliz.

The writing of diem solvit extremum, which is a legal writ, and for the subject as well as the king, which clerks of the petty bag did write, was collected into an office, and granted to Ludlowe and Dyer, 13 Eliz. 27 Martii.

The licence of alienation, formerly written by the clerks of the petty bag and the cursitor clerks, drawn into an office, and granted unto Edward Bacon, 13 Eliz. 23 April.

The writing of the supplicavit supersedeas, for the good behaviour of the peace, granted to sir George Cary, 33 Eliz. 1 Oct.

The writing of letters missive to York, granted to Lerton, in the King's time, 14 June, 4 Jac.

2ndly. Of the efficient cause.

The writing of affidavits, drawn into an office, and granted to sir James Sutterton, 20 April, 13 Jac.

The making of extents upon the statutes staple in Queen Elizabeth's time.

The making of commissions to the delegates, in appeals from sentence ecclesiastical, in Queen Elizabeth's time.

That famous erection and constitution of the cursitors for original writs, which was attributed to my father as a great service, in the beginning of Queen Elizabeth's time, though afterwards it was confirmed by act of parliament.

There be more, but I will not be exact in enumeration. My lord, for my part none of all these, no not this of Michell's now in question, ever passed my hands; they went all either before me or beside me, but, by the grace of God, I shall be able to defend them; for now, Mr. Brownlow, if you will overthrow all these, and lay open all these inclosures again, and become a kind of leveller, then we must look to you.

Now let the court judge, whether these be not a title whereto the king ought to be made a party, which is the only end and final cause of this writ; and so I leave that main part.

Now do I proceed to my second part, which is to be the efficient cause of this writ, which I declared to be the king's prerogative.

This were a large field to enter into, and therefore I will only chuse such a walk or way in it as leadeth pertinently to the question in hand: wherein I will stand only on four prerogatives, which have a great affinity with that prerogative that did beget this writ; and in every of them I will conclude this cause tanquam à fortiori.

The first is in the liberty and choice the king hath to sue in what court he will; whereupon I make this observation, that if the king may sue in what court he will where he is demandant, à fortiori he may draw a plea from another court where he is upon his defence.

The second is the prerogative which the king hath of dilatories; whereupon I infer thus, that if the king in many cases may stay a suit simply and absolutely, à fortiori he may remove a suit to the proper court in his own case.

The third is that slow motion and gradation which the law hath devised and introduced in that which is the subject of the

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