21st April 1624

WEDNESDAY, 21 APRIL 1624

I. JOURNAL OF THE HOUSE OF COMMONS, PA, HC/CL/JO/1/14

[CJ 688; f. 1]

Mercurii, 21⁰ Aprilis, 22⁰ Jacobi

SIR THOMAS HOBY reports the bill against contentious [MS torn] against officers, etc., with amendments, which [MS torn].

Engrossetur.

[Matthias] Fowle's business. Tomorrow, 2 of the clock, in the Court of Wards.

SIR NATHANIEL RICH reports the bill for the 3 lectures, [MS torn] amendments, which twice read.

Engrossetur.

Mr. Speaker went out of the chair.

The committee for continuance of statutes.

Mr. Speaker came in again.

MR. SOLICITOR tenders the bill of subsidy.

This to be first read tomorrow morning at 7 of the clock.

Moved to send a message to the Lords to speed our petition concerning religion.

Answer: that the Prince has undertaken to perform this. To expect his answer.

Sir Edward Coke sent to the Lords to desire a time for a re-conference about the bill of Wales.

The committee for the Fleet upon Friday next. Sir John Savile and Mr. Price added.

MR. [ROBERT] BERKELEY reports the bill concerning exportation of wool, etc. (recommitted, with [MS torn] additions), with amendments, which twice read.

MR. COMPTROLLER. To have the word "Scotland" stand.

So SIR JOHN SAVILE.

Ingrossetur.

SIR EDWARD COKE reports from the Lords that they have appointed 8 [o']clock tomorrow morning with [MS torn] former committee for Wales.

The patents brought into the House to be [MS torn] tomorrow morning at 8 of the clock.

[MS torn] 3a. An act for removing of actions out of inferior courts.

[f. 1v] SOLICITOR against the last provision where the action exceeds not £5. Thus all titles almost shall be tried below. Nor all utter barristers of 3 years' standing learned enough to judge of titles.

MR. [JOHN] BANKES, accordant. May by this means be both judge and parties.

SIR EDWARD COKE. This the best bill in the House. Causes removed upon a false ground.

The words "not concerning freehold or inheritance or title of land, lease or rent", by order of the House, inserted into the paper book and into the engrossed bill by the Clerk at the Board.

Upon question, passed without 1 negative.

The bill of subsidy to be read at 8 of the clock in the morning.

[Blank]

[House adjourned]

II. JOURNAL OF THE HOUSE OF COMMONS, PA, HC/CL/JO/1/13

[CJ 772; f. 155]

Mercurii, 21 Aprilis 1624

L. 1. An act as well for the provision and maintenance of Francis Bonnington, esquire, a lunatic, as for selling and disposing of part of the said lands.

L. 2. Sir John Ryves's bill to reverse a decree in Chancery.

Committed to:

This day sevennight, Court of Wards, 2 [o']clock. And all parties to have notice.

L. 2. An act for the settling and assuring of certain lands unto Dame Mary Scudamore, late wife of Sir James Scudamore, in nature of a jointure.

Committed to:

Friday next, 2 [o']clock, in the Court of Wards.

SIR THOMAS HOBY reports the bill to prevent troublesome suits commenced against justices of the peace. The amendments twice read.

Ordered, to be engrossed.

The committee for [Matthias] Fowle to meet tomorrow, 2 [o']clock, in the Court of Wards.

SIR NATHANIEL RICH reports the bill to establish 3 lectures in divinity. The amendments twice read.

Ordered, to be engrossed.

The Speaker went out of his chair, and the House fell to a committee.

Speaker went in again to his chair.

The bill of subsidy to be read tomorrow morning, 8 [o']clock.

Sir Edward Coke sent up to the Lords to desire a time for the conference about the bill of Wales and the number of the Lords' committees.

[f. 156] The committee of the Fleet to meet on Friday next; Sir John Savile and Mr. Price added to the committee.

MR. [ROBERT] BERKELEY reports the bill against exportation of wool, which was recommitted.

Ordered, to be engrossed.

SIR EDWARD COKE reports from the Lords. Have appointed the former committee, 12, and the Painted Chamber, tomorrow, 8 [o']clock, morning.

Agreed our committee of 24 shall meet them at time and place.

Sir Robert Mansell's patent and the rest to be considered of tomorrow morning, 8 [o']clock.

L. 3. An act for avoiding of vexatious delays caused by removing of actions and suits out of inferior courts.

Upon question, passed for a law.

Secret offices. This afternoon, 2 [o']clock, Court of Wards. And all the lawyers of the House to attend.

[House adjourned]

III. DIARY OF JOHN HAWARDE, WILTSHIRE AND SWINDON ARCHIVES, 9/34/2

[p. 250]

Mercurii, 21 Aprilis 1624

Bill pur remover suites hors d'inferior courtes.

Sur question, passe pur leye.

MR. BANKES [sic] fait reporte del bill pur transportacion de woolls.

Sur question, serat engrosse.

[Committee for courts of justice]

Post meridiem, Sir Robert Phelips in le chaire.

Le cause del Dame Darcy fuit oye councell learned sur ambideux parts pur le Lord Keeper's denier de quare impedit sur presentacion par luy fait de Doctor Grant al parsonage de Sutton, lease par courte de gards al dit Dame Darcy ove le corps et terre de son fils durante son minoritie. Et rule que cest presentacion oust pur [pleanartie] les 6 mois, le gard et le dit Dame Darcy dascun autre presentacion durant le minoritie, mes nemy de son enherytance sur 18 Jacobi. Mes est provide par statute de Magna Carta mes tenus grande offence de staier originall [brief] quil est shutting del gete de justice. Uncore entant que presidents furent vouche in tiels cases fait tenus error et nemy misdemeanor ne ascun corrupcion. Et referre al Lord Keepre de fairer droit al Lady pur l'enheritance et present droit en [p. 251] autrement bill pur rectifier cest en cest Huis, and issint adjourne al Sabbati proximus.

[Blank]

IV. DIARY OF JOHN HOLLES, BL, HARL. MS 6,383

[f. 137]

Wednesday, 21st of April

Mr. [William] Noye sitting in the chair for continuance and repeal of statutes.

The statute was repealed that no stoned horses must go in common, forest or chase under 14 or 15 handfuls high.

Sir Edward Coke would not have that law repealed generally that was made for the defence of the kingdom.

At last it was only repealed for Cornwall.

It is the order of the House that if more than one stand up to speak and that the Speaker rise up, they must all sit down.

Two standing up to make reports, MR. [ROBERT] BERKELEY of a public bill of transporting wool, and [MR. JOHN] GLANVILLE of the committee of privileges, [f. 137v] it was ordered that the public bill should have precedence.

The isle of Guernsey had liberty by this committee to transport 500 tods [sic] of wool.

At the committee of the courts of justice

My Lady Darcy's cause. Serjeant [Thomas] Hetley, for Dr. Grant. From the 33th [sic] of Henry the 8 to the 40th [sic] of the Queen, the Master of the Wards never presented to any living under £20 in the king's books, but the Lord Keeper ever presented. This being a question between the 2 courts, of Chancery and the Wards, not so fit to be decided in the Common Pleas or any other court but the Parliament, who, making the law, are fittest to expound it. The king does not usurp the ward's right, for he presents in his right, and my Lord Keeper Dr. Grant in his right, to this parsonage.

Sir Francis Ashley. By the statute of the 34 [sic] of Henry the 8 the Master of the Wards has power to present, for he may dispose of lands and hereditaments, and an advowson is an hereditament. This was spoken in my Lady Darcy's behalf. The Lord Keeper is not to deny his writ, though of his knowledge the party complaining has no right. One can make no lease of an advowson because there can be no annual rent reserved of it.

Dr. Grant's counsel. The king may stay the original writ in a case concerning himself until his right be tried. In 3 cases the original writ may be stayed. (They laboured to prove young [Edward] Darcy the ward's right to be still good notwithstanding my Lord Keeper's presenting of Dr. Grant.)

Serjeant Ashley, for the Lady Darcy. They labour to find us a right which we cannot find for ourselves. [f. 138] It may prove a great inconvenience to admit a boundless discretion against a limited law, meant by the Keeper.

Serjeant [Edward] Henden, for Grant. The King sent an express command to stay the quare impedit.

Mr. Stone, for Darcy. This is against the king's oath at his coronation, being sworn to do justice to all. The trust the king delivers to the Lord Keeper, who likewise takes such an oath, and therefore should not stay public justice upon a private message or verbal warrant.

Hereupon there being a general silence, Mr. [William] Noye was called up by the House to deliver his opinion, who said, if he had not formerly been of counsel with this Lady, he should not have needed to have been called upon, but now he desired to be spared.

The first question whether the Lady and her son, the ward, lose not their inheritance, having lost the first presentation to the living, which she does, and cannot recover her right but by act of Parliament. Judge Prysard [sic] in the 35 of Henry the 6 is of that opinion.

Sir Edward Coke moved because the Lord Keeper was then new come to the place, a young man and a churchman, that he should procure her and her heir as good a living from the King, and that Dr. Grant, malae fidei professor [sic], should avoid. The Lady Darcy was not out of the way, as [Mr. William] Noye said, but the Lord Keeper.

Sir Robert Hitcham. If the Lord Keeper had a warrant from the King he was faulty in tanto but not in toto. He moved to have this warrant brought forth.

One moving that the Lady Darcy should put in a bill into this House, and so to the Lords, then to the King to have her right restored, Sir James Perrot said we can neither be moderators nor directors but judges only. He moved to complain hereof to the King.

[f. 138v] Sir John Walter. Until the 34th of Henry the 8 [sic] wards were not severed from the Chancery. In the 18th of the King it was adjudged that no usurpation upon the ward should prejudice him in his inheritance, but that when he came to age he might have the same action that his ancestors had. In a case of the king, an advowson does not pass if not named.

Sir Edward Coke. Until Cardinal Wolsey's time the Lord Keeper only presented to the livings that were under 20 marks.

Mr. [John] Selden. To be considered in this question, first a point of law, how to help the Lady; then the Lord Keeper's misdemeanour.

V. DIARY OF JOHN LOWTHER, CUMBRIA ARCHIVE CENTRE, CARLISLE, DLONS/L/2/1

[f. 66v]

[21 April 1624]

[Committee for courts of justice]

Trinity, 8 Ja[c]., rot. 1,811. Emerson's case, where the King grants the manor and advowson in ward. It comes void, the [?guardian] presents, the King brought a quare impedit and barred upon supposal the Court of Wards could not grant.

[Serjeant Thomas] Hetley. In the Lord Stanhope's case, C[ommon] B[ench], that the heir, [?if] his father [?purchaser], usurpation suffered during minority. Helped by statute by the Lord Hobart's [?opposition] else then part of the statute void. That the advowson not [?devisable] by statute 34 H. 8 because no rent reservable. That 2 [?pretending] one right makes no intrusion, a[s] [?by] 2 copyholders, 2 lessees claiming both to hold no disseisin, as [Sir Thomas] Littleton if one entering claiming to hold at will so here, both the presentments being ratione minoris aetatis. That Griffin in by simony before Cordall the last presenter, so presents by lapse. That no reason to deny a quare impedit upon supposal the plaintiff has no right, but general rules admit exceptions as for great or privy seal. Where the King is prayed in aid of a Great Seal, may stay until rex consultius. [f. 67] That where a decree is in equity against a feoffee in use to convey, if he decree it, to convey if he after will sue an assize. He may deny a writ of assize or a bond to stand to order of the court performed in equity not in law, may stay execution [of] the bond. The King's commandment to stay quare impedit. 35 H. 6 [Sir John] Prisot, que heir sans remedie law launcestor nonquam seisie. Quare impedit apres 6 moyes ned remedie pour advowson, sad pro fils.

VI. DIARY OF EDWARD NICHOLAS, TNA, SP 14/166

[f. 164]

Mercredi, 21⁰ Aprilis 1624

Ordered, that the bill against transportation of wool shall be engrossed.

An act for avoiding of vexatious delays caused by removing of suits and causes from inferior courts. 3. L. This bill is now passed this House. r. p.

[f. 164v] Wednesday, 21⁰ Aprilis 1624, committee concerning abuses in courts of justice

Serjeant [Thomas] Hetley, counsel for the Lord Keeper, says that the Lady Darcy is not prejudiced of the advowson. That the King presents to the parsonage in question only in right of Master Edward Darcy, the ward. That the King is possessed of the right of presentation to that parsonage only by virtue of the office which was found on the death of the heir's father. That the Lady Darcy, as committee of her son, the heir, has no right to present. In 43 Eliz. there was a question in the Common Pleas upon a quare impedit whether the Lord Keeper or the Master of the Wards should present to advowsons of wards, wherein it was resolved in that court that either the Lord Keeper or the Master of the Wards might present to such benefices. That in 7⁰ Regis there was a devise made by lease out of the Court of Wards to the committee of all advowsons. That the Lady Darcy, by the lease which she has from the King out of the Court of Wards, has no right to present for there is a clause that she shall not present without the leave or giving first notice to the Master of the Wards.

Concerning the denial of the quare impedit, he confesses it a great injustice to deny an original writ, but the king and the Lord Keeper may deny a writ to sue in a particular court, and the Lord Keeper did only deny the writ to sue in the Court of Common Pleas but did not deny a quare impedit absolutely nor bar her from suing but left her to sue in a [f. 165] higher court, in the Parliament, for his Lordship thought it not fit to make the judges of the Common Pleas judge of his Lordship['s] right to present.

Serjeant [Sir Francis] Ashley says that when the king has granted away his right to present, the Lord Keeper cannot present in the right of the king. And in the Common Pleas, Trin., 8 Regis, rot. 1,811, between Emmerston and the Bishop of Chichester on a quare impedit there brought, it was adjudged that the committee on his Majesty's grant ought to present to such advowsons as happen. That the clause in the king's grant is that the committee shall acquaint the Master of the Wards with the clerk that shall be presented that he may see that it is a sufficient clerk that is presented.

Serjeant Hetley says that the clause in the grant to the committee of the advowsons is void because there is no fine nor rent paid unto the King for the advowson. That the Lord Keeper will give the Lady leave to present to as good a benefice. He confesses that the Lord Keeper did deny the quare impedit. He acknowledges that the law is nulli differemus, nulli negamus [sic] justiciam but there is no rule so general but there are some exceptions, as where there is a decree in Chancery for to confirm a right to a feoffee in trust, the [f. 165v] Lord Chancellor in this case may deny a writ of praecipe quod reddat. Where there is a decree in equity, the Lord Keeper may deny a writ to reverse that decree. That the King sent express command to the Lord Keeper by one of the Master of Requests that he should not grant the writ of quare impedit to disturb his Majesty's chaplain.

Serjeant Ashley. That the counsel of the other side have laboured to give a right to the Lady, but for aught he sees they cannot do, but she is still outed of her son's right if she may not out Dr. Grant. That he hopes this court will consider what it is to admit of a boundless discretion to bar a limited law. That to make a precedent of what the Lord Ellesmere did was a matter de facto but now the question is de jure. That it were dangerous for to allow of such a reason that a judge should say, I know you have no right and therefore shall have no original writ. That Dr. Grant's counsel should have done better to say that since the Lord Ellesmere, a great lawyer, did deny such a writ, that then this Lord Keeper might easily be misled by an ill precedent made by so learned a man and so great a lawyer.

Mr. Stone, being of counsel with the Lady, says that the purpose was [f. 166] to defer the writ of quare impedit until the 6 months were past and such writ not being brought within that time, the Lady not having presented, the King might present by lapse or quocumque alio modo. That the cursitor was willing to have passed the writ but told the Lady that he carried the writ of quare impedit to the seal and there it was rejected. That this denial of the writ is an offence to the King, who is to do aequum et justum, which power the King has committed to the Lord Keeper, and is contrary to the oath of the Lord Keeper. That the cases and precedents alleged by the counsel of the other side are of late year and unprecedent[ed] before, but the question of presentment is between the Lord Keeper and the Lady, but his Lordship, in denying the writ of quare impedit, makes himself both judge and party.

Mr. [William] Noye desires to be excused from delivering his opinion in this business because he was of counsel with the Lady Darcy, [blank] but being/

1. Question whether the heir by losing his presentment (his father having never presented to it before) shall lose his right of presentment. He thinks the heir shall not lose his right in this case, but this is but his [f. 166v] own private opinion. That this is much debated in the books of law and a great lawyer called Judge [Sir John] Prisot has delivered his opinion otherwise. That he believes the Court of Wards had power to grant this advowson to the committee. That the Lady being barred from presenting for the space of 6 months has lost the right of presenting: nay, if it fall again during the time of the commitment, she cannot present to it. That he thinks the Lady Darcy should have preferred a bill, not a petition, which is a wrong way.

Sir Edward Coke says that the Court of Wards had power to grant the advowson, for advowsons pass by the word "tenement". That by the usurpation of the Lord Keeper, the Lady has lost her right to present, and also he doubts the inheritance of the advowson is also lost. He moves that the Lord Keeper should procure a grant from the King of the right and inheritance of that advowson, and that the incumbent, who is possesser malae fidei, should resign up his present interest. That he takes it that the Lady does take a right course and the Lord Keeper was in the wrong.

Mr. [John] Carvile says he thinks there ought to be some course taken not only for the relief of the Lady but also for the preventing of [f. 167] the like hereafter, and that blame should be laid where it is deserved, for otherwise no man can be assured of means to recover his right when it is impeached.

Sir James Perrot says that the denying of this writ is an obstruction of the law and a denying of the right of the subject. That he thinks that this is a fault in the Lord Keeper wittingly done, and it was not ignorance but wilfulness in the Lord Keeper. And we hear of precedents wherein the like has heretofore been denied to the subject and that is now made an excuse for the Lord Keeper, and if we thus slightly pass this over, this will also be alleged for a precedent for the future to deny the like right, and it will be the more strong against the subject because this was complained of in Parliament and he that was in fault for it was here passed by unblamed.

Sir Edward Coke says that since Cardinal Wolsey's time, the Lord Keepers have presented to all the king's benefices that are under £20 per annum in the king's books, but before it was only such as were under 20 marks per annum. That the Lord Keeper had no wrong if the Lady should have presented, for the King did grant his right of presentment to the Lady.

Mr. [John] Wandesford says that there is one principal part yet unspoken to, which is that which concerns the commonwealth, and therefore he would have that here debated and considered of.

[f. 167v] Mr. [John] Selden says that in [sic] the Lady Darcy does not in her petition say that the Lord Keeper did deny her the quare impedit, but that the cursitor said he offered the said writ but it was rejected it [sic]. He would not have [us] be original informers nor take notice of a fault before a complaint be made.

Mr. [William] Strode says he is a young man and does desire that precedents may be sought forth to show whether this House may punish an unjust judge or no.

Mr. [John] Wandesford says that the counsel that was here for Dr. Grant did confess that the Lord Keeper did deny the Lady Darcy the writ of quare impedit.

Sir Humphrey May. That it is a great wrong to deny an original writ. But if we complain of his Lordship for this, he will say he has done no more than his predecessors have done before him. He would have the further debate hereof deferred until Saturday.

Mr. Solicitor says that the King's counsel did signify to the Lord Keeper that his Lordship could not deny the Lady Darcy to have a quare impedit.

Sir Thomas Wentworth would have us consider how deeply the denial of this writ does trench into the inheritance of every subject, but he thinks this rather an error than a crime in the Lord Keeper.

This is deferred until Saturday to [be] considered how to rectify the Lady, how to right the heir and how to [f. 168] lay blame on the Lord Keeper for this which he has erroneously done.

VII. DIARY OF SIR THOMAS HOLLAND, BODL., MS RAWL. D1,100

[f. 42v]

21 April

An act for [Francis] Bonnington, a lunatic.

Second read, committed. An act to enable Sir John Ryves in Dorset to pursue his course at common law notwithstanding a decree in Chancery.

Second read, committed. An act for assuring a jointure to the Lady [Mary] Scudamore.

[SIR THOMAS] HOBY, report, the bill for ease of pleadings against justice of peace.

Engrossing.

[SIR NATHANIEL] RICH, report, an act for establishing the three lectures of divinity according to the last will of William Whetenhall.

Engrossing.

The House goes on with the continuance of statutes. The repeals are read.

[MR. ROBERT] BERKELEY. Report [?from] recommitting, against the exportation of wool, woolfells, fuller's earth, fuller's clay, woollen yarn, morlings and shorlings.

Engrossing.

An act for avoiding vexations suits and delays caused by removing suits out of inferior courts.

Engrossed bills [sic] passed for a law.

VIII. DIARY OF RICHARD DYOTT, STAFFORDSHIRE RECORD OFFICE, MS D661/11/1/2

[f. 72]

April 21

A cistern in the statute is 4 [remainder of line illegible] [14?] [illegible] 5 E. 6 if repealed [remainder of line illegible] [?4 words illegible] by which may principal ...

[?2 words illegible] [?the] first statute [?3 words illegible] laws were made in time of H. 4 against Welshmen because they took part with the right heir against [f. 73] him. So these sharp laws make for the honour of that [remainder of line illegible] [illegible] laws to be repealed which cannot but ...

Bill for not removing suits out of inferior courts [2 illegible words] for the value [illegible]. Passed.

IX. DIARY OF JOHN PYM, NORTHAMPTONSHIRE RECORD OFFICE, FH/N/C/0050

[f. 74v]

April 21, 1624

An act to enable [blank] Bonnington to sell land of his elder brother's, being a lunatic.

An act for relief of Sir John Ryves against [John] Tregonwell.

An act to secure a rent charge to the Lady Mary Scudamore.

SIR THOMAS HOBY reported the bill for ease of pleading in troublesome suits against justices, etc.

The Speaker went out of the chair and some time was spent in the committee for continuance and repeal of statutes.

The Speaker returning to the chair, MR. [JOHN] GLANVILLE offered to make a report from the committee of privileges, alleging that by order of the House matters concerning our own privileges ought to have the precedency of any public bill.

Yet it was appointed that MR. [ROBERT] BERKELEYshould first report the bill against transportation of wools, which upon the recommitment was moderated in those points which were excepted against.

• 1. The name of Scotland was left out, but left included in the general words, "out of the Kingdom of England".
• 2. The forfeiture of ships restrained to foreigners and Englishmen dwelling beyond the seas.
• 3. The allowance of Guernsey enlarged from 400 to 500 tod.

The petitions remained unresolved:

• 1. For the butchers of Berwick to carry muttons into Scotland.
• 2. Liberty to transport the coarse wools of divers counties of the north, which were no staple wools.

Divers were unsatisfied with the alterations. MR. [JOHN] MORE urged for a further allowance for Guernsey, alleging it was to keep 7,000 people a[t] work, and that Hampshire had an overplus of wool which they could not vent.

MR. COMPTROLLER disliked the putting out of Scotland, alleging the King would pass the bill the better if it agreed with his own proclamation, wherein it was restrained by name.

• 2. [sic] The limitation of the forfeiture especially in regard of pinks and boats which are most ordinarily employed for carrying away of wool, which was pursued by SIR DUDLEY DIGGES, desiring the forfeiture might extend to smaller vessels not exceeding 40 tons.

[f. 75] SIR EDWARD COKE brought word from the Lords that they were ready to meet in the conference for the bill of Wales.

An act to avoid delays by removing suits out of inferior courts was now reported from the committee.

This bill contained 3 points:

• 1. No removal of any action after issue unless the issue were joined within 6 weeks (2.), in suits remanded back after one removal (3.), or suits under £5, no removal at all.

All which were limited to such courts where a[n] utter barrister of 3 years should be judge or assistant for the time being.

Divers exceptions were taken upon this report to the bill:

• 1. All titles brought in question upon actions of trespass will come by this means to be tried in the country.
• 2. It may give occasion of multiplying of suits if men should take a course to divide their actions, as in travers[e], contracts, assumpsits may be done.
• 3. In some cases the same will be both judge and party, as for penalties by by-law[s] in corporation which commonly do not exceed £5.

The first was acknowledged to be a good exception, and therefore these words were put into the bill, "not concerning freehold or inheritance", without recommitment (quod nota), being contrary to the general rule of mending only engrossed bills at the table.

Touching the 2nd, it was said that if the debt were upon contract, the defendant might hold him to it by wager of law or pleading nihil debet. In actions of traver[se] or trespass for goods taken, it was acknowledged the action might be sued. And it was replied that for a debt the plaintiff was at his choice to proceed by action of debt, in which case there was wager of law, or by action upon the law, in which [case] there was no wager. Yet was there no amendment agreed upon in this point.

The third was partly answered that few charters give jurisdiction licet seipsis tangant. The rest left unprovided for.

Eodem die, in the committee for courts of justice

The Lady Darcy had preferred a petition against my Lord Keeper for denying her the writ of quare impedit for the rectory of Sutton, to which his Lordship had presented one Dr. Grant, and the case was thus opened by her counsel.

The manor of Sutton in the county of Surrey, to which the church of Sutton is appendant, is parcel of the inheritance of [Edward] Darcy, his Majesty's ward, the wardship of whose body, the custody of his lands are committed to the Lady Darcy, the plaintiff. In August 1621 the church became void, whereof she had no notice until September following. In the meantime my Lord Keeper had presented Dr. Grant, conceiving the presentation to belong to him in right of his place, being under value. She had no remedy but by action. The proper action a quare impedit. That was denied her. She petitioned his Lordship. His answer, that he had an opinion of his own right and a care to maintain his own jurisdiction, upon which he thought the Master of the Wards did intrude, yet offered to present her chaplain to some [f. 75v] other living. By his denial she sustained this mischief:

• 1. That a quare impedit being barred after a plenarty of 6 months, she was left without means to recover her right.
• 2. That the young gentleman had lost the inheritance, for though the statute of Westminster 2, cap. 5, do preserve the right of infants during their minorities, yet this case will not be within that provision, for the words give the same action which his ancestors might have had, and this was purchased by his grandfather and there has been no avoidance since.

Serjeant [Thomas] Hetley, of counsel with my Lord Keeper. First, to the point of prejudice. That neither the possession of the Lady nor the inheritance of the ward were barred, for these reasons:

• 1. Agreeing the inheritance to settle in the ward by possession, in this case the King is in possession in right of the heir; the Lord Keeper's presentation affirm[s] the King's title and vests the inheritance in the ward, for by his office he may present whether the King be entitled in jure coronae or ratione minoris aetatis.
• 2. If the presentation were made after such time as the wardship and land were committed, her title, if it were good in law, remains still, for it was only a collation and no presentation.
• 3. The Lord Keeper's [sic] title is certain; the difference is between the 2 courts. When the Court of Wards was erected 33 H. 8, the statute never intended to take away the right of the Lord Keeper, who before that did present in the like cases, and so it continued until 43 Eliz., in all which time (being long enough for the exposition of an act of Parliament) the Master of the Wards never presented. In 43 Eliz., in the Common Pleas, there was a resolution that either the Lord Keeper or Master of the Wards might present, and according since that time until 7⁰ Jacobi, which of them had first notice have used to bestow the benefice. In 7⁰ Jacobi a device was found out that whereas before, in the committing of wards' lands, advowsons were wont to be excepted, the Master should grant the advowson with the land. And so the Lord Keeper might be barred, because the estate would be in the grantee and not in the King. But this device does not hold, for the statute intended not the Lord Keeper should be deprived of his right, and the words whereby the court may dispose lands and tenements will not extend to advowsons.
• 4. Admit that court may grant advowsons, the manner of this particular grant makes it void, for there is a covenant that the committee shall give notice of the avoidance to the Master, and not present without licence, so that she is but a committee in use.
• 5. The King cannot usurp upon himself; therefore howsoever he present it is by matter of record.

To the point of injustice, he gave 2 general reasons that the denying of a writ in this case was no injustice:

• 1. To deny a writ in a case between 2 subjects is against law, but not where the king has a right because the [f. 76] king may choose in what court he will sue, and the other party is not left without remedy by Parliament or otherwise.
• 2. A question between 2 such courts was not fit to be decided by the ordinary judges, but to be directed to the Parliament which was there sitting.

On the other part by Serjeant [Sir Francis] Ashley. If the king present in right of his ward it is no usurpation; but in this case his interest was gone, for in the commitment there are words of grant, upon which the committee may bring her action as for any other estate. The covenant for notice was only that the Master might see an able man presented. Before the statute of 33 H. 8 he confessed there was a power in the Lord Keeper, and that power not taken away but a new power erected by these general words, "dispose of lands and hereditaments". If the king had granted a manor before the statute with an advowson appendant, the Lord Keeper could not present. And if no guardian as guardian present, it is an usurpation, as was adjudged Trin., 8 Jacob., rot. 11, in the Common Pleas.

Other reasons were given by my Lord Keeper's counsel in his defence.

• 1. That the heir's inheritance was preserved by Westminster 2, cap. 5, notwithstanding his grandfather was purchaser and did never present. The mischief therein to be prevented was the disinheritance which infants did sustain by the neglect of guardians and fraud of tenants for life. The remedy is quod habeant eandem actionem qualem ultimus antecessor, etc. If the ancestor had been now alive, he might have had this action as it was lately adjudged in the Common Pleas. But if the infant come in by purchase, there is a difference.
• 2. The lease of advowson void in law. By the common law no such grant could be made under the seal of the Court of Wards. The authority erected by statute is to be pursued accordingly, which extends only to leases of lands and tenements at a rent. But advowsons are not comprised in those words nor to be valued. Therefore bishops and other ecclesiastical persons can grant no leases of advowsons. If the lease be void, then the King's title ratione minoris aetatis is affirmed as well by my Lord Keeper's presentation as it would have been by the presentation of the Master of Wards. If a question grew between a lessee and a copyholder, wheresoever the possession is, there is no disseisin because they claim both under one lord. A stranger receives another man's rent, he may either distrain or make him a disseisor; one enters upon another man's land claiming nothing, no disseisor, yet the tenant in fee simple may make him a disseisor.
• 3. The King had a better right then in right of the ward upon lapse, because he that preceded the last incumbent came in by simony.

A more particular justification of the denial of the writ was endeavoured. When the king commands proceedings to be stayed rege inconsulto, it must be by writ under the Great Seal. But there are 3 cases wherein the precedents of the Chancery give power to the Lord [f. 76v] Keeper to deny an original in a suit between subject and subject.

• 1. If there had been a decree against the wife of cestui que use for the dower, whose husband notwithstanding before the statute had a good estate in law and she after that decree would have sued out a praecipe.
• 2. If the court take a bond in the officer's name and he offer to sue the bond.
• 3. If there be a conveyance to one of the 6 clerks in trust, that he may convey over as the court shall direct.

To apply these precedents to this case was alleged that this was but a lease in trust to perform that which the court should think fit, for there was a covenant to give notice of the avoidance, etc. And there is no precedent where the lessee has presented in his own name, but the Master of the Wards under the seal. If there should be a quare impedit, it must be brought in the king's name, which the Lord Keeper might deny; and for the refusal of this writ his Lordship had the King's special commandment.

It was replied that the Lord Keeper had one ordinary way to stop proceeding by injunction and process of contempt, so the precedents may excuse but no way justify.

The Lord Keeper's counsel alleged that my Lord Ellesmere would never grant the writ of excommunicato capiendo upon the statute 2 Ed. 6 and to the point of prejudice, because it was only doubtful. They propounded on his Lordship's behalf that he would procure a grant from his Majesty whereby the ward's estate might be made certain and that my Lady should be admitted to her quare impedit.

Mr. Stone, for my Lady. My Lord Keeper's first presentation was ratione minoris aetatis, but since he has made another ratione minoris aetatis seu per lapsum temporis aut quocunque alio modo. That she might have a quare impedit to recover damages but never to remove the clerk. If he had any warrant from the King, it was verbal and not under the Great Seal; and the denial was against the king's oath, my Lord Keeper's oath and Magna Carta. In all the precedents vouched, the suit was between two other parties; but here he was a party himself, for which there is no precedent.

After the counsel went out it was debated by the committee.

Mr. [William] Noye. The heir was disinherited by the words of the statute, yet debated in our books and [Sir John] Prisot's opinion, H. 6, otherwise. The Lord Keeper could present only to those benefices that were under xx marks Cardinal Wolsey brought to £20. Where the manor may be granted by the Court of Wards, the advowson [f. 77] appendant will pass. She can never remove the incumbent nor present upon another avoidance. But she is out of the way here; we are not to advise her, but she must be relieved by bill, and desire that plenarty may not be a plea against her.

Sir Edward Coke. It has been adjudged in the Common Pleas [that] the Master of the Wards may grant a lease of an advowson. The Lord Keeper's presentment a plain usurpation. The heir gone at common law, by statute doubtful. All the printed authority this way. A quare impedit will never lie for damages after 6 months. To be ordered by Parliament that my Lord Keeper procure a grant from the King to the heir and that the incumbent resign as being malefidium [sic] possessor.

Mr. [John] Glanville. The advowson being appendant, the grant is clear for an advowson in gross. It may be doubted because there is no value, yet if a rent be reserved the king may distrain anywhere. The heir's estate questionable, but the Lady certainly not provided for. By that statute of Westminster 2, if one man have a nomination, another the presentation, he that is to nominate is the patron, for the other is but a dignity. If by the covenant she must present whom the Master nominates, upon the matter the king is the patron. Our order cannot relieve her. It must be by bill regularly. The subject ought not to be denied originals. None of the precedents reach to this case. After decrees perchance it may be done, and sometimes upon fines and recognizance. Here is no misdemeanour alleged, and therefore not to proceed upon the petition but to leave her to her bill.

Sir John Walter. The inheritance is not taken away. The book case is an opinion and no judgement. But 18⁰ Eliz. in the Common Pleas it was judged otherwise. Lands and tenements in a common person's case include advowsons appendant, but not in the case of the crown. He had no desire to break great men, or to cast shame into their faces. The Lord Keeper knew not her right at first. Afterwards, finding the covenant did plainly imply a trust, it was fit for him to stagger and not to admit her that was trusted for the King to impeach the King's right.

Mr. [Richard] Oakeley, from the Lord Keeper, made an offer to procure a grant from the King and that the incumbent should not plead plenarty.

Mr. [John] Whistler. No new grant can make the advowson appendant. But if Dr. Grant surrender and she present, there will be a remitter.

Mr. [John] Selden began to strain some reasons so far in justifying my Lord Keeper that he was interrupted.

Mr. [William] Noye vouched a precedent, H. 4. Ashton recovered a presentation, the record was embezzled, [f. 77v] so there could be no execution upon his petition. It was awarded there should be execution upon the paper book.

The resolution was referred until the Lord Keeper should make some further answer.

X. DIARY OF SIR WALTER EARLE, BL, ADD. MS 18,597

[f. 153]

Wednesday, 21st of April

SIR THOMAS HOBY'S report of the bill for quiet of the subject against vexations [sic] suits, etc.

Passed to engrossing.

The committee for the bill of continuance and repeal of statutes sat in the House.

The House sat again.

SIR JAMES PERROT moved to hasten the petition against recusants.

[f. 153v] SIR ROBERT PHELIPS. Fit in respect to the Prince to stay awhile because he undertook to move his father.

SIR THOMAS EDMONDES. It is expected the King will be here on Friday.

A message to the Lords about a conference touching the bill of Wales.

Bills being to be passed, the order of the House alleged no bills to be passed until those that went up were returned.

MR. [ROBERT] BERKELEY'S report of the bill against transportation of wool, having been recommitted.

Passed to engrossing.

Bill for avoiding vexations [sic] delays in removing suits out of inferior courts, third read.

Some words inserted. The words twice read, passed.

Wednesday afternoon, the committee for courts of justice

The Lady Darcy's case. A complaint of being denied the writ of quare impedit touching a benefice to which she had right to present, the Lord Keeper having placed in his own chaplain, Dr. Grant, in the benefice.

Sir Francis Ashley, of counsel with the Lady Darcy. Sir Robert Darcy, seized of the manor of Sutton and advowson, died; left [Edward] Darcy his heir; the wardship granted to the Lady Darcy. The Lord Keeper pretended title by virtue of his place to the presentation, and presents Dr. Grant. The Lady Darcy goes to bring [f. 154] a quare impedit. That writ was denied her. The 6 months run out, so not only the present presentation is lost, but the inheritance forever lost to the heir.

Serjeant [Edward] Henden, of counsel with the Lord Keeper.

• 1. For the right of presentation, none.
• 2. No prejudice to the inheritance.

The inheritance in Edward Darcy, the heir. The King in possession. In the right of the heir the Lord Keeper has title to present, this being under £20 per annum. The presentation in the right of the heir maintains the right of the heir. Second, true it is that this presentation was granted after the lease was made to the Lady Darcy of the ward's estate. The Court of Wards erect by act of Parliament 34 H. 8 [sic], but that law intended not to take away the right of the Lord Chancellor. Until the year 43 Eliz. the Master of the Wards did never present. A resolution then, etc. In 7⁰ Jac. a device used that the Master of the Wards should grant the land and the advowson. Admit the Master of the Wards may grant, yet is not she the true grantee. A covenant in the grant that when the church is void, notice shall be given to the Master of the Wards. [f. 154v] Lastly, the king cannot present in right and usurp. For the denial of the quare impedit, to deny a writ between party and party unjust. But for the king to deny and to choose what court, etc., a prerogative incident to the crown. Second, it being mere matter of jurisdiction between the Court of Wards and the Chancery, she was willed to repair to the Parliament.

Sir Francis Ashley. Though the king has right in right of the ward, but when he has granted it away, then, etc., so the Lord Keeper could have no right when the king had none. Second, by the statute the Master of the Wards has power to grant lands and hereditaments. An advowson is an hereditament. Where one that is no guardian presents as a guardian is an usurpation. A case adjudged, Trinity, 8⁰ Jac., rot. 1,811, a quare impedit brought against Emersham and the Bishop of Chichester, the grant was read, the advowson of Sutton therein granted by name. The clause of acquainting the Master of the Wards upon the avoidance appears to be only that a fit clerk might be provided.

Serjeant [Thomas] Hetley, of counsel with the Lord [f. 155] Keeper, acknowledged it no fit cause to deny the writ of quare impedit, right or no right. But to the point of inheritance, it is not lost but preserved by the statute Westminster 2: in the preamble 2 mischiefs recited, usurpations by guardians and by tenants in dower. Vide qualis ultimus antecessor. Secondly, this lease of the advowson void in law, but under the seal of the Court of Wards, not the Great Seal. The statute allows only lands and tenements, which yield an annual rent. An advowson is not so. The presentment being still in the ward's right is no disseisin. Third, the king had an ancienter [sic] right. One Griffin came in by simony. For the denial of the quare impedit he acknowledges it to be against the law, the statute of Magna Carta, and against the statute 2 E. 3. These general rules have particular exceptions. In some cases the king may command the stay of a writ under the Great Seal, where he has a right, not proceed rege inconsulto. Between party and party 3 cases:

• 1. Where there is a decree in Chancery against one that has right in law or cestui que use. A precedent for it in the Lord Ellesmere's time. So in case of relief in equity on a bond. So where the court orders that [f. 155v] two shall convey lands, etc. The lease made only in trust to perform that the court should think fit. The Lord Keeper has presented divers upon the like title.

Serjeant Ashley. Not fit to talk what the Lord Ellesmere did de facto but de jure. A dangerous thing to commit things to a boundless discretion against a limited law. In Chancery if a decree be made, the course is not to deny the original writ, but to lay an injunction and restrain the person.

Mr. Stone, of counsel with the Lady Darcy. The first presentation was ratione minoris aetatis, etc. But after, Dr. Grant got a new presentation sive per lapsum sive alio quocunque modo. The denial of the writ a wrong to the King, a wrong to himself in regard of his oath.

Sir Robert Phelips.

• 1. The legal point of right.
• 2. The wrong done in denying the writ, the wrong to the Lady, her son, the commonwealth.

Mr. [William] Noye's opinion.

• 1. The heir shall not be disinherited, though his ancestor had no right to present. [Sir John] Prisot's opinion otherwise.
• 2. The grant of the advowson to the Lady is good.
• [f. 156] 3. She, by reason of this usurpation, has no remedy for the present, nor for the next if it should fall.

Sir Edward Coke. The Court of Wards has power to grant an advowson, adjudged 2 Jac. in the Common Pleas. Besides under the word "tenements" Judge Prisot, H. 6 time, is of opinion that the inheritance is in such case lost, and I am of the same opinion. The Lady Darcy is in the right way of complaint, the writ being denied her.

Mr. [John] Carvile. This a complaint that concerns the commonwealth. We are to consider of it accordingly, and not to be silent. It concerns us and our posterities, and is a denial of a common right.

Sir James Perrot. The point of law not so much considerable, as the danger of the precedent. A wrong done to justice, a thing wittingly done, fit to complain of it.

XI. JOURNAL OF SIR SIMONDS D'EWES, BL, HARL. MS 159

[f. 106]

April 21, Wednesday

[Committee of the Whole House]

The bill of continuance of statutes.

[f. 106v] An act against transportations of wool, woolfells, etc. After long debate put to engrossing.