« VorigeDoorgaan »
law, in these words, viz. " de falsis monetis, Galway; Rot. Parl. 3° Ed. 4. in Castro Dublin. • quia in diversis locis contra justitiam fiunt, vo- And 12 Ed. 4. Rot. Parl, ibid, it is ordained, that
lumus, ut innullo alio loco moneta, nisi in pa- the masters of the mint in Ireland should make, • latio nostro, fiat.' Choppinus de Domanio in the castles of Dublin and Trim, and in the town Franciæ, 217. a. Yet in 28 Ed. 1. this prudent of Drogheda, five sorts of coin, the groat, the king, for the facility of exchange, caused several half-groat, the penny, half-penny and farthing; mints to be established in several towns in by which it is manifest that in former times, England; one in the Tower of London with there were five several mints in Ireland, in the thirty furnaces, another at Canterbury with eight several towns aforesaid. But all these were furnaces, another at Kingston upon Hull with discontinued in the time of Ed. 6, so that since four furnaces, another at Newcastle upon Tyne the reign of that king, all the money made in with two furnaces, another at Bristol with four Ireland hath been coined in England ; and furnaces, and another at Exeter with four fur- therefore this mixed money, coined in the naces. Tractat. de monetâ Angliæ, made in Tower of London, may be properly called the time of Ed. 1. which I found in the library current and lawful money of England. of sir Robert Cotton, which was the book of Sixthly and lastly, it was resolved, that allord Burleigh, late lord high treasurer of Eng-though at the time of the contract and obligaland. See also the close rolls of 29 Ed. 1. in tion made in the present case, pore money of the Tower of London. And this appears also gold and silver was current within this kingby the inscription of divers antient coins, on doin, where the place of payment was assignwhich are expressed the naines of the cities ed; yet the mixed money, being established in where they were coined, according to a verse this kingdom before the day of payment, may made in the time of Edi 1. and taken by Stow well be tendered in discharge of the said obliout of Robert le Brun, an antient manuscript : gation, and the obligee is bound to accept it; • Edward did smite round penny, balf-penny, and if be refuses it, and waits unuil the money farthing.'
be changed again, the obligor is not bound to And then followed,
pay other money of better substance, but it is * On the king's side, was his head and his name suficient if he be always ready to pay the written,
mixed money according to the rate for which On the cross side, the city where it was smit- they were current at the time of the tender. ten,'
And this point was resolved on consideration And this same king having established a of two circumstances, viz, the time and the mint at Dublin with four furnaces, and having place of the payment; for the time is future, constituted Alexander Norman of Lusk master viz. that if the said Brett shall pay or cause tú of the mint there, as appears in several records be paid 1001. sterling, current money, &c. and in the archives of the Castle of Dublin; after therefore such money shall be paid as shall be wards, viz. 32 Ed. 1, when he bad altered the current at such future time; so that the time form of the coin, he caused divers stamps con of payment, and not the time of the contract, sisting of two parts, of which the one contained shall be regarded. the pile, and the other the cross, to be trans Also, the future time is intended by the words mitted to the treasurer of this kingdom, as is current money; for a thing which is passed is recorded in the red book of the Exchequer here not in cursu; and therefore all the doctors, who in this manner. • Magister Gulielmus de Wi-write de re nummaria,' agree in 'this rule,
mundham, custos cambiorum domini regis in • verba currentis monetæ tempus solutionis de • Anglia, de precepto venerabilis patris Bachon. signant.' And to this purpose are several
et Wellensis episcopi, thesarrarij ejusdem do cases ruled in our books, 6 and 7 Ed. 6. Dyer • mini regis, misit doinino Gulielmo de Esen-81. b. After the fall and embasement of den, thesaurario in Hibernia, viginti quatuor money, 5 Ed. 6. debt was brought against the
pecias cuneorum, pro moneta ibidem facienda, executors of lessee for years, for rent in arrear o viz. tres pilas cum sex crucellis pro denarijs, for two years, ending Mich. 2 Ed. 6. at which tres pilas cum sex crucellis pro obolis, et duas time the shilling (which at the time of the
pilas cum quatuor crucellis pro feriingis, per action brought, was cried down to 6d.) was • Johannem le Minor, Thomas Dowle, et Jo current for 12d. the defendants pleaded a
hapnem de Shorditch, clericos, de societate tender of the rent on the days when it became operarioruin et monetariorum London, per due, in peciis monetæ Angliæ vocat. shileosdem ad monetam prædictam operandam et lings, qualibet pecia vocat, shilling, adtunc so
monetandam.' And there it is likewise men • lubili pro 12d.' und that neither the plaintiff tioned, before what witnesses the said stamps nor any other for him was ready to receive it, were delivered; for cuneus monetæ tanquam &c. and concluded that they are still ready to "sigillum regni custodiri debet,' as it is said in pay the arrears . in dictis peciis vocat. shillings, the treatise de moneta Angliæ' before men i secundum ratam,' &c. On this plea, altioned; and the reason is, because to coun- though the plaintiff demurred, yet he was conterfeit the one or the other is high treason. tent to take the money at the rate aforesaid,
And at this time there was but one mint in without costs or damages. To the same purIreland, to wit, at Dublin, But long after- pose is the case of Pollards adjudged, 29 Ed. wards, viz. 3 Ed. 4. a mint was established at 1, and reported by Dyer 82. b. where in debt Watcrford, another at Trim, and another at on an obligation for payment of 25l, at two
several days, the defendant pleads, that, at the these words currentis monetæ' shall relate to days limited for payment of the debt in demand the time of the payment; yet in wills, they
currebat quædam moneta quæ vocabatur Pol- shall relate to the time of making the will; for lards, loco sterlingi,' &c. and that the defendant the bequest is in the present tense, I give at the first day of payment tendered the moiety and bequeath,' &c. and therefore legacies of the debt in the money called Pollards, which shall be paid in such money as is current at the plaintiff letised, and that he is still ready, the time of the making the testament, or ac&c. and offered it in court, which is not denied cording to the rate thereot. It was also said, that by the plaintiff'; ideo concessum est, that he re if a man hath 1000l. of pure silver in marriage covered one moiety in Pollards, and the other with his wife, and afterwards they are divorced in pure sterling inoney. See 9 Ed. 4. 49. a causa præcontractus, by which ihe wife is to remarkable case on the change of money,
receive ber portion: or if man recovers by where it is said, that is a man in an action of ani erroneous judgment 100l. in debt, and hath deht demands 401. it shall be intended money execution in pure silver money, and alterwards which is current at the time of the writ pur- the judgment is reversed, so that he is to be chased. And there a case in the time of Ed. 1. restored to all that he hath lust, although base is put, which is directly to this purpose. In money be established in the mean time, restidebt brought upon a deed for 30 quarters of bar- tution shall be in such money as was current ley, price 201. it was found for thie plaintiff, and at the time of the marriage, and at tbe time of the jury was charged to enquire of the price at the recovery. But these latter cases were not the time of the payment, and it was said that resolved. at the time of the payment a quarter was at And as to the circumstance of place, it was 12s. but at the time of the making of the resolved, that although the contract was made deed, it was only at 3s. and the plaintiff re- in London, yet, the place of payment being covered 18l: for the corn according to the appointed in Dublin, of necessity the obligor price of it at the time of the payment. To
must make his tender in the mixed money at this purpose also, Linwood hath a notable the time of the payment; for all other money gloss on the coustitution of Simon Mepham, was cried down and made bullion by the prolib. 3. de Testamentis cap. item quia. for clamation aforesaid, and this money only estawhere the constitution is such,“ pro publica-blished ; so that if the obligce had refused this
tione testamenti pauperis, cujus inventarium mixed money, he had committed a contempt, « bonorum non excedit centum solidos sterlin for which he might be punished. Also the gorum, nihil penitus exigatur,' he maketh judges are vot bound to take notice of any mothis gloss, hic solidus sumitur pro duodeciin ney, that is not current by proclamation. And
denarijs Anglicanis, &c. Sed quæro,' saith therefore Prisot saith, 34 llen 6. 12. a. 'we he, . numquid circa hos centuin solidos debeat are not apprised of 61. Flemish, as we are of
considerari valor in moneta jain currente, l ' 100 nobles,' and therefore in all contracts of • vel valor sterlingorum qui currebant tempore merchants, ' consuetudo et statuta loci, in statuti;' and there he resolveth, quod ubi quem est destinata solutio, respicienda sunt.' dispositio surgit ex statuto, ut bic, licet ino Budelius de re nummariâ, lib. 2. c. 21. And neta sit diminuta in valore, tamen debet con- it was said, that if at this day the law should siderari respectu monetæ novæ currentis, et be taken, as it was taken in the time of Ed. 1. • non respectu antiquæ. Nam mutata moneta, that upon judgment in debt given in England,
mutari videtur statutum, ut scilicet intelliga on a testatum that the defendant hath nothing * tur de nova, et non de veteri.' See Reg st. in England, but that he hath goods and lands 50. a. and 54. b. where the king issues his writ, in Ireland, a writ of execution shall be awardto be certified of the value of a church. The ed to the chief justice or deputy of Ireland, to words of the writ are secundum tarationem de- levy the debt there, (which writ is found in cima jam currentis. And 31 Ed. 3. Fitz, H. Registro Brev. Jud. 43. b.) the sum in such Annuity 28. an anncity was granted to I. S. case shall be levied according to the rate of until he was promoted by the grantor to a suf Irish money, and not of English money, and in ficient benefice; I. S. brings a writ of annuity such coin as shall be current in this kingdom, against the grantor, who pleads that he had at the time of the execution. tendered to the plaintiff a sufficient benefice; And according to this Resolution, several and there issue was taken on the value of the other Cases on the saine point were afterwards benefice at the time of the tender.
ruled and adjudged in the several Courts of But it was said that, altbongh in contracts Record in Dublin,
79. ARTICULI CLERI: Articles (so intitled by Lord Coke) of
Complaint against the Judges of the Realm; exhibited by
Parons. [Lord Coke's ad Inst. 601.) LORD Coke, in treating of the Stat. 9 Ed. 2. the lawes of the realm, and still kept, though calied ARTICULI CLERI, says:
with great ditliculty, ine ecclesiastical courts Long before the making of this statute, that within their just and proper limits. The courts is, anno 42 H. 3. A.D. 1958, Boniface younger by pretext of these canons being at variance, 201.ne of Thomas earle of Savoy, archbishop of at length at a parliament bolden in the 51 yeare Cere's sbury, uncle of Elianor queen of Eng- of Henry the third, Bomface, and the rest of acid ?, who is iis daughter of Reymond carle of the clergy, complained (which was ultimum Ii ditore by Beatis daughter of Thomas earle refugium, and yet the right way) and exhibited
V, and sister io the said Boniface, made many Articles as grievances, called articuli dict and many canons and constitutions pro- Cleri. The Articles exhibited by the clergie vincial directly against the lawes of the realme, either by accident or inelustry cie to be which canons begun thus : Universis Chrisi found; some of the Answers are extus , 'viz. • fidelibus ad quis præsens pagina pervenerit, ' Ad 16 Articulum de usuris, resposta. ", quod • Benitachus miseratione diviva Cantuariensis licet episcopus, &c.-Ad 17 aruculen --• archiepiscopus, totius Angliæ primas, et sui • matione, &c. respondetur, si aliquis defa
sutfraganei in verbo salutari salutem. And matus, &c, si autem certæ personæ nominata ending thus : 'Actum apud Viestm', sexto • fuerint, per quas rei veritas melius seire po• iduum Junii A.D. 1238. In quorum omnium ' terit, nominantur, ad probana' matrimonium
robur et testimonium, &c.' which being ex • vel testamentum : et similiter in accusatioceeding long, we could not here insert. But 'pibus tales personæ impediendæ non sunt, the effect of them is, so to usurp and incroach quia testimonium perhibent veritati, sed propupon many matters, which apparently belonged 'ter hoc non est congregatio laicorum faciend', to the common law, as, amongst many others, quia per congregationem hujusmodi servitia the tryall of limits and bounds of parishes, and dominus possit deperire.--Ad 18 Artic' domiright of patronage, against tryall of right of nas posuit remedium.-Ad 19 Artic' respontithes (by indicurit) against writs to the bishop detur, quod archiepiscopus de episcopata upon a recovery in a quare impedit, &c. in the vacante non se intromittat quantum ad temking's courts. That none of their possessions 'poralia, sed tantum se de spiritualibus introor liberties, which any of the clergy had in the inittat, &c.—Ad 20 Artic' respondetur, quod right of their church, should be tryed before de clericis occisis, et de hiis qui forsan occidi any secular judge ; (so as they would not have contigerit, in futurum fiat justitia, secundum conusance of things spirituall, but of teinporall • legein et consuetudinem terræ, &c.—Ad 21 also) and concerning distresses and aliach- ' Artic' respondetur, quod excommunicatus per ments within their fees, and in effect, that no ordinarium, aut alium judicem competentem, quo warranto should be brought against thein, et denunciatus taliter, debebit ab abis evitari, when they had been long in possession, with an nisi forsan excommunicatus conqueratur se invective against the perverse interpretation by esse injuste excommunicatum pro aliqua re the judges of the realme (so they termed il) of 'temporali, de qua non debeat coram ordinario charters, &c. granted to them, and in substance respondere, ad cujus probationem debet adagainst tire ancient and just writs of prohibi- mitti, sed in cæteris quæ proponit, ut actor, tion in cases, where by the lawes of the realme est interim evitandus.-Ad 22 Artic' manda: they are maintainable: and commandement • bitur justiciariis, quod non fiant aliquæ prisa given to admonish the king and interdict luis per totam terram de bonis aliquorum, nisi delands and revenues, and thundred out excom bitæ prise et consuetæ.- Ad 23 Artic' rese . munications against the judges and others ifpondetur, quod cum aliqui tencant aliquod de they violated, or obeyed not the said canons rege in capite unde custodia debeatur, cusand constitutions. And this was the principall todiæ omnium terrarum de quibuscunque ground of the controversies between the judges tenentes illi tenementa illa teneant cum acciof the realme and the bishops : for this caused derint (si inde custodia babere debeatur) hacecclesiasticall judges to usurp and incroach tenus ex consuetudine approbata spectarunt upon the common law. But notwithstanding ad regem, sed episcopi si expedire videant, the greatnesse of the archbishop Boniface, and • inhibeant tenentibus suis, ne aliqua tenementu that divers of the judges of the realm were of the sibi perquirant de feodis regis.' clergy, and all the great officers of the realm, as These Answers are yet extant of record, and chancellor, treasurer, privie seale, &c. were pre are worthy to be read at large as they get lates; yet the judges proceeded according to remaine ; whereunto we referre the reader.
This is to be olserved, that none of Boniface's of his fidelity and great wisdome, and · WalCanons against the luwes of the realm, and the terus arcbiepiscopus Cantuariensis regi gracrowne and dignity of the king, and the birth • tiosissimus fuit, hæc regis æquissima responsa right of the subjeci, are bere confirmed. ad prælatorum petita obtinuit)' in the name
What the residue of the Articles and the of himselfe and of the clergy, preferred these Answers were, may be collected by that act 16 Articles, and by authority of parliament of parliament entitled • Probibitio formata de had the Answers here following seriatim to statuto Articuli Cleri,' which was made in the every one of them. And now it may seem time of Edward the first, about the beginning luigh time that we should descend to the peruof his reign, which beginneth thus : Eduard:us, sall of the preamble, and the Articles and An&c. prælulis, &c. wherein divers points are to swers. · But before we come to it, it shall conbe observed against the canons of Boniface: duce much to the right understanding of divers * 1. Quod cognitiones placitorum super feoda- parts of this act of parliament, to report unto • libus et libertatibus feodaliuin, districtionibus, you what Articles Richard Bancroft archbishop • officiis ininistrorum, executionibus contra pa- of Canterbury exhibited in the name of the
cem nostram factis, felonum negotiationibus, whole ciergy in Michaelmas terme anno 3 Ja• consuetudinibus secularibus, attachiamentis, cob. regis to the lords of the privie counced • vi laica malefactoribus rectatis, robberiis, against the judges of the realm, intitled, • arrestationibus, maneriis, advocationibus ec• clesiarum, suficientibus as sisis juratis, re
Certain Articles of Abuses, which are desir• cognitionibus laicum feodum contingenti ed to be reformed, in granling of Prohibi• bus, et rebus aliis, et causis pecuniarum,
tions, and the Answers thereunto: • et de aliis catallis et debitis quæ non sunt Upon mature deliberation and consideration, • de testanieot' vel matrimon' ad coronam in Easter terme following, by all the Judges of . et dignitatem regiam pertineant, et de regno England, and the barons of the exchequer,
de consuetud' ejusdem regni approbata, et with one unanimous couisent under their haods • hactenus observata. 2. Et proceres, et mag- (resolutions of highest authorities in law) which . nates, aut alii de eodem regno temporibus were delivered to the lords of the councell. • nostrorum prædecessorun reyum Angliæ, seu And we for distinction sake (because we shall nostra authoritate alicujus non consueverunt have occasion often to cite them) call them
contra consuetudinem illam super hujusmodi articuli Cleri 3 Jacobi. « rebus in causa trahi vel compelli ad comparendum coram quocunque judice ecclesiastico.
1. His majesty hath power to reforme abuses 63. Et quod vicecomes non permittant, quod
in Prohibitions. * aliqui laici in baliva sua conveniunt ad aliquas Objection. The clergy well hoped, that they
recognitiones per sacramenta sua faciend', had taken a good course in seeking some re. nisi in causis matrimonialibus et testamen- dresse at his majesties hands concerning sun6 tariis. Of the substance of this prohibition, dry abuses offered to his ecclesiasticall jurisdicBritton speakerh in these words, ' et queux ount tion, by the over frequent and undue granting sutfert pleader en court christian auters pleas, of prohibitions ; for both they and we supposed que de testament ou matrimonie, et de pure (all jurisdiction, both ecclesiasticall and temspiritueltie sans deniers prender de lay hone. porall being annexed to the imperiall crowne * Ou suffert lay home iorrer de vant lordinary.' of this realme) that his highnesse had been
After this the Clergy, at a Parliament holden held to have had sufficient authority in himin the raigne of the same king E. 1. preferred selfe, with the assistance of his councell
, te Articles intitled “ Articuli contra prohibition-judge what is amisse in either of his said jurisem regis,' fearing lest by reason of some gene- dictions, and to have reformed the same acrall words therein they might be prohibited in cordingly; otherwise a wrong course is taken causes, which of rigbt belonged to the ecclesi- by us, if nothing may bee reforined that is now astical jurisdiction, in these words, sub hac complained of, but what the temporall judges • forma impetrant laici prohibitionem in genere shall of themselves willingly yeeld unto. This • super decimis, oblationibus, obventionibus, is therefore the first point, which upon occa* mortuariis, redemptionibus penitentiarum, sion lately ottered before your loriiships by
violenta manuum injectione in clericum vel some of the judges, we desire may be cleared, * commissarium, et in causa defamationis, in qui- because we are strongly perswaded as touching • bus casibus agitur ad pænam canonicam im- the validity of his majesties said anthority,' and • ponendam. And a just and legall Answer doe hope that we shall be able to justitie the was made thereunto, as thereby appeareth. same, notwithstanding any thing that the But it is to be observed, that they claimed no- judges, or any other can alledge to the contrary. thing which was against the true meaning of Answer of the Judges. No man makeih the said act, called Prohibitio formata de sta- | any question, but that both the jurisdictions
tuto Artic' Cleri,' nor any of Boniface's canons are lawfully and justly in his majesty, and to bee confirmed; and so these matters rested, that if any abuses be, they ought to bee reuntill the parliament holden at Lincoln in the formed: but what the law doth warrant in ninth yeare of Edw. 2, where Walter Reynolds cases of prohibitions to keep every jurisdiction bishop of Canterbury (whom the king favour- in his true limits, is not to be said an abuse, ed, saith one, singularly for the opinion he had nor can be altered but by parliament.
2. The fornes of Prohibitions prejudiciall to subject, and the disgrace and discredit of his his majesties authonty in causes ecclesias majesties jurisdiction ecclesiasticall, the judges,
as we suppose, notwithstanding their great ticall,
learning in the lawes, will be budly able in Objection. Concerning the forme of probi- defence of them to satisfie your lordslips. bitions, forasmuch as both the ecclesiasticall dosacr. Prohibitions by law are to be and temporall jurisdictions be now united in granted at any time to restraine a court to inhis majestie, winch were heretofore de Jacto, fermeddle with, or execute any thing, which by though not de jure derived from severall heads, law they ought not to hold plea ot, and they we desire to be satistied by the judges, whether, are much mistaken that maintaine the conas the case now stundeti, the former manner trary. And it is the folly of such as will pro. of prohibitions here utisre used importing an ceed in the ecclesiasticall court for that, ecclesiasticall court to be aliud forum à foro whereof that court hath not jurisdiction ; or in regio, and the ecclesiasticall law not to be that, whereof the kings temporall courts should le gem terra, and the proceedings in those have the jurisdiction, And so themselves, by courts to bee contra coronum it dignita'en re their extraordinary dealing, are the cause of gium, may now without ottence and derogation such extraordinary charges, and not the law : to the kings ecclesiasticall prerogative be con for their proceedmgs in such case are coran tin ed, as ihough either the said jurisdictions non judice. And the kings courts that may remained now so disunguished and severed as award prohibitions, being informed either by they were befiore, or that the lanes ecclesiasti- the parues themselves, or by any stranger, that call, which wee put in execution, were not the any court temporall or ecclesiasticall doth hold kings and the realmes ecclesiasticall lawes, as piea of that, whereof they have not jurisdiction, well as the temporall lawes.
may lawtully prohibit the same, as well alter dusuer. It is true, that both the jurisdic- judgement and execution, as before. tions were ever de jure in the crowne, though the one suinetimes usurped by the see of
4. Prohibitions unduly awarded heretofore Rome; but neither in the one time, nor in the
in all causes almost of ecclesiasticall coga other baths ever the forme of prohibitions been
vizance. altered, nor can bee but by parliament. And Oljection. Whereas it will be confessed, it is contra coronam et di atatem riguam for that causes concerning testaments, matrimony, any to usurp to deale in that, which they have benefices, churches, and divine service, with not lawtull warrant from the crowne to deale many otlences against the 1, 2, 3, 4, 5, 7, 9, in, or to take from the temporall jurisdiction and 10 commandements, are by the lawes of that which belonged to it. The prohibitions this realm of ecclesiasticall cognizance, yet doe not import, that the ecclesiasiicall courts there are few of them, wherein sundry prohiare alind then the kings, or not the kings bitions have not been granted, and that more courts, but doe import, that the cause is drawne ordinarily of latter imes, then ever heretofore, into aliud exumea then it ought to be: and not because we that are ecclesiasticall judges therefore it is alw.ies said in the propositions doe give greater cause of such granting of them, (be the court temporall or ecclesiasticall, to then before have been given, but for that the which it is awarded) if they deale in any case
humour of the time is growne to be too esger which they have not power to hold plea of, against all ecclesiastical jurisdiction. For that the cause is drawn ud aliud cramen theu whereas, for examples sake, during the raigne it ought to be; and therefore contra coronam of the late queen of worthy memory, there el dignitatem regiam.
have been 488 prohibitions, and since his ma3. A fit time to be assigned for the defend- jesties time 82 sent into the court of the arches;
we humbly desire your lordships, that the dant, if he will seek a Prohibition.
judges may be urged to bring forth one probiOljection. As truching the time when Pro-bition of ten, nay the twentieth prohibition of hibitions are granted, it seemeth strange to us, all the said 488, and but 2 of the said 82, that they are not onely granted at the suit of which upon due considerations with the libels the detendant in the ecclesiasticall court after in the ecclesiasticall court, they shall be able his answer (whereby hee ffirmeth the jurisdie- to justifie to have been rightly awarded : we tion of the said court, and submitteth himselte suppose they cannot; our predecessors, and unto the same ;) but also after all allegations we our selies have ever been so carefull not to and proofts made on both sides, when the exceed the compasse and limits of the ecclesicause is fully instructed and furnished for sen. | asticall jurisdiction : which if they shall retuse tence: yea, atier sentence, yes after two or to attempt, or shall not be able to perforine, three sen'ences given, and after execution of then we referie our selves to your lordships the said sentence or sentences, and when the wisdomes, whether we have not just cause io party for his long continued disol edience is complaine, and crave restraint of this over laid in prison upon the writ of excommunicato | lavish granting of prohibitions in every cause cupiendi, which courses, forasmuch as ihey are without respect. That which we have said of against the rules of the common law in like the prohibitions in the court of the arches, we cases, as we tithe it, and doe tend so greatly to verily perswade our selves may be truly atlirmihe delay of justice, vexation, and charge of the ed of all the ecclesiasticall courts ia Èngland,