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common seal; that the common seal shall be in the custody of the prior, which is under the abbot, and four others of the discreetest of the house; and that any deed sealed with the common seal, that is not so kept, shall be void. And the opinion in the 27 H. 6. tit. Annuity 41, was, that this statute is void; for the words of the book are, it is impertinent to be observed: for the seal being in their custody, the abbot cannot seal any thing with it; and when it is All which I most humbly submit to your Majesty's in the hands of the abbot, it is out of their custody princely judgment. ipso facto. And if the statute should be observed, EDW. COKE. every common seal might be defeated by a simple surmise, which cannot be. Note, reader, the words of the said statute made at Carlisle, anno 35 E. 1. which is called Statutum Religiosorum, are these: "Et insuper ordinavit dominus rex et statuit, quod abbates Cistercienses et Præmonstratenses ordinum religiosorum, etc. de cetero habeant sigillum commune, et illud in custodia prioris monasterii seu domus et quatuor de dignioribus et discretioribus ejusdem loci conventus sub privato sigillo abbatis ipsius loci custod. deponend. Et si forsan aliqua scripta obligationum, donationum, emptionum, venditionum, alienationum, seu aliorum quorumcunque contractuum alio sigillo quam tali sigillo communi sicut præmittitur custodit, inveniatur amodo, sigillata pro nullo penitus habeantur, omnique careant firmitate.' So the statute of 1 E. 6. cap. 14, gives chanteries, &c. to the king, saving to the donor, &c. all such rents, services, &c. and the common law controls this, and adjudges it void as to the services; and the donor shall have the rent as a rent-seck to distrain of common right; for it should be against common right and reason, that the king should hold of auy, or do suit to any of his subjects, 14 Eliz. Dyer, 313. And so it was adjudged Mich. 16 and 17 Eliz. in the common place in Stroud's case. So if any act of parliament give to any to hold, or to have conusance of all manner of pleas before him arising within his manor of D. yet he shall hold no plea whereunto himself is a party, for Iniquum est aliquem suæ rei esse judicem.
Which cases being cited in the argument of this case, and I finding them truly vouched, I reported them in this case, as my part was, and had no other meaning than so far as those particular cases there cited do extend unto. And therefore the beginning is, It appeareth in our books, &c. And so it may be explained, as it was truly intended.
In all which I most humbly submit myself to your Majesty's princely censure and judgment.
case in Brooks's Abridgement, pla. 77, where it is that, if the admiral, who proceeded by the civil law, hold plea of any thing done upon the land, that it is void and coram non judice; and that an action of trangressions in that case doth lie, as by the said case it appeareth. And therefore that in that case he can neither fine nor imprison. And therewith agree divers acts of parliament; and so it may be explained, as it was truly intended.
The humble and direct Answer to the Fourth Question arising out of Dr. BONHAM's Case.
In this case I am required to deliver what I mean by this passage therein, That in many cases the common law shall control acts of parliament; and sometimes shall adjudge them to be merely void; for where an act of parliament is against common right and reason, the common law shall control it, and adjudge it to be void.
The words of my report do not import any new opinion, but only a relation of such authorities of law, as had been adjudged and resolved in ancient and former times, and were cited in the argument of Bonham's case; and therefore the words of my book are these, "It appeareth in our books, that in many cases the common law shall control acts of parliament, and sometimes shall adjudge them to be utterly void; for when an act of parliament is against common right and reason, or repugnant or impossible to be performed, the common law shall control this, and adjudge such act to be void." And therefore in 8 E. 3. 30, Thomas Tregor's case, upon the statute of West. 2. cap. 38, et artic. super cart. cap. 9, Herle saith, Some statutes are made against law and right, which they, that made them, perceiving, would not put them in execution.
The statute of H. 2. cap. 21, gives a writ of "Cessavit hæredi petenti super hæredem tenent et super eos, quibus alienatum fuerit hujusmodi tenementum." And yet it is adjudged in 33 E. 3. tit. cessavit 42, where the case was, Two co-partners, lords and tenant by fealty and certain rent; the one co-partner hath issue, and dieth, the aunt and the niece shall not join in a cessavit, because that the heir shall not have a cessavit, for the cessor in his ancestor's time. Fitz. N. B. 209, F. and herewith accords Plow. com. 110. And the reason is, because that in a cessavit, the tenant, before judgment, may render the arrearages and damages, &c. and retain
his land and this he cannot do, when the heir The humble and direct Answer to the last Question bringeth a cessavit for the cessor in the time of his ancestor; for the arrearages incurred in the life of his ancestor do not belong to the heir.
arising upon BAGG's Case.
And because that this is against common right and reason, the common law adjudges the said act of parliament as to this point void. The statute of Carlile made anno 35 E. 1. enacteth, That the order of the Cistertians and Augustins have a convent and
It was resolved, that to this court of the king's bench belongeth authority not only to correct errors in judicial proceedings, but other errors and misdemeanors tending to the breach of the peace, or oppression of the subjects, or to the raising of faction or other misgovernment: so that no wrong or
injury either public or private can be done, but it | shall be reformed and punished by law.
Being commanded to explain myself concerning these words, and principally concerning this word, misgovernment;
I answer, that the subject-matter of that case concerned the misgovernment of the mayors and other the magistrates of Plymouth.
And I intended for the persons the misgovernment of such inferior magistrates for the matters in committing wrong or injury, either public or private, punishable by law, and therefore the last clause was added, " And so no wrong or injury, either public or private, can be done, but it shall be reformed and punished by law;" and the rule is "Verba intelligenda sunt secundum subjectam materiam."
And that they and other corporations might know, that factions and other misgovernments amongst them, either by oppression, bribery, unjust disfranchisements, or other wrong or injury, public or private, are to be redressed and punished by law, it was so reported.
But if any scruple remains to clear it, these words may be added, "by inferior magistrates;" and so the sense shall be by faction or misgovernment of inferior magistrates, so as no wrong or injury, &c.
All which I most humbly submit to your Majesty's princely judgment. EDW. COKE.
MAY IT PLEASE YOUR LORDSHIP,
ABOVE a year past, in my late lord chancellor's time, information was given to his Majesty, that I having published in eleven works or books of Reports, containing above 600 cases one with another, had written many things against his Majesty's prerogative. And I being by his Majesty's gracious favour called thereunto, all the exceptions, that could be taken to so many cases in so many books, fell to five, and the most of them too were by passages in general words; all which I offered to explain in such sort, as no shadow should remain against his Majesty's prerogative, as in truth there did not; which whether it were related to his Majesty, I know not. But thereupon the matter hath slept all this time; and now the matter, after this ever blessed marriage, is revived, and two judges are called by my lord keeper to the former, that were named. My humble suit to your lordship is, that if his Majesty shall not be satisfied with my former offer, viz. by advice of the judges to explain and publish as is aforesaid those five points, so as no shadow may remain against his prerogative; that then all
the judges of England may be called hereunto. 2.
To the Right Honourable his singular good Lord, the Earl of Buckingham, of his Majesty's Privy Council.*
The Letter to the Judges.
WHEREAS in the time of the late lord chancellor intimation was given unto us, that divers cases were published in Sir Edward's Coke's Reports, tending to the prejudice of our prerogative royal; whereupon we caring for nothing more, as by our kingly office we are bounden, than the preservation of prerogative royal, referred the same; and thereupon, as we are informed, the said Sir Edward Coke being called thereunto, the objections were reduced to five only, and most of them consisting in general terms; all which Sir Edward offered, as we are informed, to explain and publish, so as no shadow might remain against our prerogative. And whereas of late two other judges are called to the others formerly named. Now our pleasure and intention being to be informed of the whole truth, and that right be done to all, do think it fit, that.all the judges of England, and barons of the exchequer, who have principal care of our prerogative and benefit, do assemble together concerning the discussing of that, which, as is aforesaid, was formerly referred; and also what cases Sir Edward Coke hath published to the maintenance of our prerogative and benefit, for the safety and increase of the revenues of the church, and for the quieting of men's inheritances, and the general good of the commonwealth in all which we require your advice and careful considerations; and that before you make any certificate to us you confer with the said Sir Edward, so as all things may be the better cleared.
To all the Judges of England, and Barons of the
There is no date to this letter, but I conceive it written in October or November, 1617. Note by Mr. Stephens.
FIRST, I bequeath my soul and body into the hands of God by the blessed oblation of my Saviour; the one at the time of my dissolution, the other at the time of my resurrection. For my burial, I desire it may be in St. Michael's church, near St. Alban's: there was my mother buried, and it is the parish church of my mansion-house of Gorhambury, and it is the only christian church within the walls of old Verulam. I would have the charge of my funeral not to exceed three hundred pounds at the most.
For my name and memory I leave it to men's charitable speeches, and to foreign nations, and the next ages. But, as to that durable part of my memory, which consisteth in my works and writings, I desire my executors, and especially Sir John Constable and my very good friend Mr. Bosvile, to take care that of all my writings, both of English and of Latin, there may be books fair bound and placed in the king's library, and in the library of the university of Cambridge, and in the library of Trinity College, where myself was bred, and in the library of Bennett College, where my father was bred, and in the library of the university of Oxonford, and in the library of my lord of Canterbury, and in the library of Eaton.
Also, whereas I have made up two register-books, the one of my orations or speeches, the other of my epistles or letters, whereof there may be use; and yet because they touch upon business of state, they are not fit to be put into the hands but of some counsellor, I do devise and bequeath them to the right honourable my very good lord bishop of Lincoln, and the chancellor of his Majesty's duchy of Lancaster. Also I desire my executors, especially my brother Constable, and also Mr. Bosvile, presently after my decease, to take into their hands all my papers whatsoever, which are either in cabinets, boxes, or presses, and them to seal up until they may at their leisure peruse them.
I give and bequeath unto the poor of the parishes where I have at any time rested in my pilgrimage, some little relief according to my poor means: to the poor of St. Martin in the Fields, where I was born, and lived in my first and last days, forty pounds; to the poor of St. Michael's near St. Alban's, where I desire to be buried, because the day of death is better than the day of birth, fifty pounds; to the poor of St. Andrew's in Holborn, in respect of my long abode in Grays-Inn, thirty pounds; to the poor of the abbey church parish in St. Alban's, twenty pounds; to the poor of St. Peter's there, twenty pounds; to the poor of St. Stephen's there, twenty pounds; to the poor of Redborn, twenty
pounds; to the poor of Hempstead, where I heard sermons and prayers to my comfort in the time of the former great plague, twenty pounds; to the poor of Twickenham, where I lived some time at Twickenham Park, twenty pounds. I intreat Mr. Shute, of Lombard-street, to preach my funeral sermon, and to him in that respect I give twenty pounds; or if he cannot be had, Mr. Peterson, my late chaplain, or his brother.
Devises and legacies to my wife: I give, grant, and confirm to my loving wife, by this my last will, whatsoever hath been assured to her, or mentioned or intended to be assured to her by any former deed, be it either my lands in Hertfordshire, or the farm of the seal, or the gift of goods, in accomplishment of my covenants of marriage; and I give her also the ordinary stuff at Gorhambury, as wainscot tables, stools, bedding, and the like (always reserving and excepting the rich hangings with their covers, the table-carpets, and the long cushions, and all other stuff which was or is used in the long gallery; and also a rich chair, which was my niece Cæsar's gift, and also the armour, and also all tables of marble and towch). I give also to my wife my four coach geldings, and my best caroache, and her own coach mares and caroache; I give also and grant to my wife the one half of the rent which was reserved upon Read's lease for her life; which rent although I intended to her merely for her better maintenance while she lived at her own charge, and not to continue after my death; yet because she has begun to receive it, I am content to continue it to her and I conceive by this advancement, which first and last I have left her, besides her own inheritance, I have made her of competent abilities to maintain the estate of a viscountess, and give sufficient tokens of my love and liberality towards her; for I do reckon, and that with the least, that Gorhambury and my lands in Hertfordshire will be worth unto her seven hundred pounds per annum, besides woodfells, and the leases of the houses, whereof five hundred pounds per annum only I was tied unto by covenants upon marriage; so as the two hundred pounds and better was mere benevolence; the six hundred pounds per annum upon the farm of the writs, was likewise mere benevolence; her own inheritance also, with that she purchased with part of her portion, is two hundred pounds per annum and better, besides the wealth she hath in jewels, plate, or otherwise, wherein I was never strait-handed. All which I here set down, not because I think it too much, but because others may not think it less than it is.
Legacies to my friends: I give unto the right | Wagstaffe, one hundred pounds. I give to Morrice honourable my worthy friend the marquis Fiatt, late Davis one hundred pounds. I give to old John lord ambassador of France, my books of orizons or Bays one hundred pounds. I give to my ancient psalms curiously rhymed; I give unto the right servant, Woder, threescore and ten pounds. I give honourable my noble friend Edward earl of Dorset, to my ancient servant, Guilman, threescore pounds. my ring, with the crushed diamond, which the king I give to my ancient servant, Faldo, forty pounds. that now is gave me when he was prince; I give I give to London, my coachman, forty pounds. I unto my right honourable friend the lord Cavendish, give to Harsnep, my groom, forty pounds. I give my casting-bottle of gold; I give to my brother to Abraham, my footman, forty pounds. I give to Constable all my books, and one hundred pounds to Smith, my bailiff, and his wife, forty pounds. I give be presented to him in gold; I give to my sister to my ancient servant, Bowes, thirty pounds. I give Constable some jewels to be bought for her, of the to my servant, Atkins, thirty pounds. I give to old value of fifty pounds; I give to Nall, her daughter, Thomas Gotherum, who was bred with me from a some jewels, to be bought for her, of the value of child, thirty pounds. I give to my servant, Plomer, forty pounds; I give to my lady Cooke some jewels, twenty pounds. I give to Daty, my cook, twenty to be bought for her, of the value of fifty pounds; pounds. I give to Henry Brown twenty pounds. and to her daughter, Ann Cooke, to buy her a jewel, I give to Richard Smith twenty pounds. I give to forty pounds; and to her son, Charles, some little William Sayers ten pounds. I give to John Large jewel, to the value of thirty pounds. I will also, twenty pounds. I give to old goodwife Smith ten that my executors sell my chambers in Gray's-Inn, pounds. I give to Peter Radford's wife five pounds. which, now the lease is full, I conceive may yield some I give to every mean servant that attends me, and three hundred pounds; one hundred pounds for the is not already named, five pounds. ground story, and two hundred pounds for the third and fourth stories; which money, or whatsoever it be, I desire my executors to bestow for some little present relief, upon twenty-five poor scholars in both universities, fifteen in Cambridge, and ten in Oxford. I give to Mr. Thomas Meautys some jewel to be bought for him, of the value of fifty pounds, and my foot-cloth horse. I give to my ancient good friend, Sir Tobie Matthew, some ring, to be bought for him, of the value of thirty pounds. I give to my very good friend, Sir Christopher Darcy, some ring, to be bought for him, of the value of thirty pounds. I give to Mr. Henry Percy one hundred pounds. I give to Mr. Henry Goodricke forty pounds. I give to my godson, Francis Lowe, son of Humphrey Lowe, one hundred and fifty pounds. I give to my godson, Francis Hatcher, son of Mr. William Hatcher, one hundred pounds. I give to my godson, Francis Fleetwood, son of Henry Fleetwood, Esq. fifty pounds. I give to my godson, Philips, son of auditor Philips, twenty pounds. I give to every of my executors a piece of plate of thirty pounds value.
The general devise and bequest of all my lands and goods to the performance of my will.
Whereas by former assurance made to Sir John Constable, knight, my brother-in-law, and to Sir Thomas Crew and Sir Thomas Hedley, knights and serjeants at law, and some other persons now deceased, all my lands and tenements in Hertfordshire were by me conveyed in trust: and whereas of late my fine, and the whole benefit thereof, was by his Majesty's letters patents conveyed to Mr. Justice Hutton, Mr. Justice Chamberlain, Sir Francis Barneham, and Sir Thomas Crewe, knight, persons by me named in trust; I do devise by this my will, and declare that the trust by me reposed, as well touching the said lands as upon the said letters patents, is, that all and every the said persons so trusted, shall perform all acts and assurances that by my executors, or the survivor or survivors of them, shall be thought fit and required, for the payment and satisfaction of my debts, and legacies, and performance of my will, having a charitable care that the poorest either of my creditors or legataries be first satisfied.
I do farther give and devise all my goods, chattels, and debts due to me whatsoever, as well my pension of twelve hundred pounds per annum from the king, for certain years yet to come; as all my plate, jewels, household-stuff, goods and chattels whatsoever, except such as by this my last will I have especially bequeathed, to my executors, for the better and more ready payment of my debts, and performance of my will.
Legacies to my servants now, or late servants: I give to my servant, Robert Halpeny, four hundred pounds, and the one half of my provisions of hay, firewood, and timber, which shall remain at the time of my decease. I give to my servant, Stephen Paise, three hundred and fifty pounds, and my bed with the appurtenances, bed-linen, and apparel-linen, as shirts, pillow-biers, sheets, caps, handkerchiefs, &c. I give to my servant, Wood, three hundred and thirty pounds, with all my apparel, as doublets, hose; and to his wife, ten pounds. I give to my late servant, Francis Edney, two hundred pounds, and my rich gown. I give to my ancient servant, Troughton, one hundred pounds. I give to my chaplain, Dr. Rawleigh, one hundred pounds. I give to my ancient servant, Welles, one hundred pounds. I give to my ancient servant, Fletcher, one hundred pounds; and to his brother ten pounds; and if my servant Fletcher be dead, then the whole to his brother. I give to my wife's late waiting-gentlewoman, Mrs. |
And because I conceive there will be upon the moneys raised by sale of my lands, leases, goods and chattels, a good round surplusage, over and above that which may serve to satisfy my debts and legacies, and perform my will, I do devise and declare, that my executors shall employ the said surplusage in manner and form following: that is to say, that they purchase therewith so much land of inheritance, as may erect and endow two lectures in either of the universities; one of which lectures shall be of natural philosophy, and the sciences in
general thereunto belonging; hoping that the stipends or salaries of the lectures may amount to two hundred pounds a year for either of them; and for the ordering of the said lectures, and the election of the lecturers from time to time, I leave it to the care of my executors, to be established by the advice of the lords bishops of Lincoln and Coventry and Litchfield.
Nevertheless, thus much do I direct, that none shall be lecturer if he be English, except he be master of arts of seven years standing, and that he be not professed in divinity, law, or physic, as long as he remains lecturer; and that it be without difference whether [he] be a stranger or English: and I wish my executors to consider of the precedent of Sir Henry Savil's lectures, for their better instruction.
I constitute and appoint for my executors of this my last will and testament, my approved good friend the right honourable, Sir Humphrey Maye, chancellor of his Majesty's duchy of Lancaster, Mr. Justice Hutton, Sir Thomas Crewe, Sir Francis Barneham, Sir John Constable, and Sir Euball Thelwall; and I name and entreat to be one of my supervisors, my most noble, constant, and true friend, the duke of Buckingham, unto whom I do most humbly make this my last request, that he will reach forth his hand of grace to assist the just performance of this my will; and likewise that he will be graciously pleased for my sake to protect and help such of my good servants, as my executors shall at any time recommend to his Grace's favour and also I do desire his Grace, in all humbleness, to commend the memory of my long-continued and faithful service unto my most gracious sovereign, who ever, when he was prince, was my patron, as I shall, who have now, I praise God, one foot in heaven, pray for him while I have breath.
And because of his Grace's great business, I presume also to name for another of my supervisors, my good friend and near ally the master of the rolls.
And I do most earnestly entreat both my executors and supervisors, that although I know well it is matter of trouble and travail unto them, yet considering what I have been, that they would vouchsafe to do this last office to my memory and good name, and to the discharge of mine honour and conscience; that all men may be duly paid their own, that my good mind by their good care may effect that good work.
Whatsoever I have given, granted, confirmed, or
appointed to my wife, in the former part of this my
W. RAWLEY, RO. HALPENY,
DECIMO tertio die mensis Julii anno Domini millessimo sexcentesimo vicesimo septimo emanavit commissio domino Roberto Rich militi, supremæ curiæ cancellariæ magistror' uni, et Thomæ Meautys armigero, creditoribus honorandi viri domini Francisci Bacon militis, domini Verulam, vice-comitis Sancti Albani, defunct', habentibus etc. ad administrand' bona jura et credita dicti defuncti Francisci Bacon defunct', juxta tenorem et effectum ipsius testamenti suprascript', ea quod dominus Thomas Crewe miles et dominus Johannes Constable miles, executores in hujusmodi testamento nominat' alias vigore mandator' sive occasionum a curia prærogat' Cantuar' emanat' ad id legitime et peremptorie citati, onus executionis testament' suprascript' in se suscipere recusarunt et denegarunt, saltem plus juste distulerunt; eoque quod dominus Humphridus Maye miles, cancellarius ducatus Lancastriæ, dominus Ricardus Hutton miles, unus justitiariorum domini nostri regis de banco coram, dominus Euball Thelwall miles, suprema curia cancellariæ magistrorum unus, et dominus Franciscus Barnham miles, executores etiam in testamento suprascript' nominat', ex certis causis eos et amicos suos in ea parte juste moven' oneri executionis testament' suprascript' expresse renuntiarunt, prout ex actis curiæ prædict' plenius liquet et apparet; de bene et fideliter administrando eadem ad sancta Dei evangelia in debita juris forma jurať.
LINTHWAITE FARRANT Registrar' deputat' assumpt'.