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wrong or injury can be done, but, that this shall be reformed or punished by due course of law.||
I know obedience is better than sacrifice for | debate, or to any manner of misgovernment. So no otherwise I would have been an humble suitor to your Majesty to have been spared in all service concerning the lord chief justice. I thank God, I forget not the fifth petition, Dimitte nobis debita nostra sicut, etc. but withal I have learned this distinction: there is, 1. Remissio vindicta. 2. Remissio pœnce. 3. Remissio judicii. The two first I am past, and have freely and clearly remitted. But the last, which is of judgment and discretion, I trust I may in christianity and good conscience retain, and not to trust too far, &c.
I must beseech your Majesty's favour to excuse me for all that I have here before written, but specially for this last needless passage; wherein I fear your Majesty will note me to play the divine, without learning, and out of season. So with my continual prayers to God to preserve your Majesty with long, healthful, and happy life, and all earthly and heavenly felicity, I rest
Your Majesty's humble and faithful subject
1. In the case of the isle of Ely, whether his lordship thinks that resolution there spoken of to be law; That a general taxation upon a town, to pay so much towards the repair of the sea-banks, is not warranted to be done by the commissioners of sewers; but that the same must be upon every par? ticular person, according to the quantity of his land, and by number of acres and perches; and according to the portion of the profit, which every one hath there.
QUESTIONS demanded of the Chief Justice of the
2. In Darcy's case, whether his lordship's judgment be as he reporteth it to be resolved; that the dispensation or licence of queen Elizabeth to Darcy to have the sole importation of cards, notwithstanding the statute, 3 E. 4, is against law.†
3. In Godfrey's case, what he means by this passage, Some courts cannot imprison, fine, or amerce, as ecclesiastical courts before the ordinary archdeacon, &c. or other commissioners, and such like, which proceed according to the canon or civil law.‡
4. In Dr. Bonham's case, what he means by this passage, That in many cases the common law shall control acts of parliament, and sometimes shall judge them to be merely void: For where an act of parliament is against common right and reason, the law shall control it, and adjudge it void.§
5. In Bagges's case, to explain himself where he saith, That to the court of king's bench belongs authority, not only to correct errors in judicial pro1 ceedings, but other errors and misdemeanors extrajudicial, tending to the breach of peace, oppression of subjects, or to the raising of faction, controversies, * Lib. 10. + Lib. 11. Ibid.
I received these questions the 17th of this instant October, being Thursday; and this 21st day of the same month I made these answers following:
The humble and direct Answer to the Questions upon the Case of the Isle of Ely.
THE statute of the 23 H. VIII. cap. 5, prescribeth the commission of sewers to be according to the manner, form, tenure, and effect hereafter ensuing, namely, to inquire by the oath of men, &c. who hath any lands or tenements, or common of pasture, or hath, or may have, any loss, &c. and all these persons to tax, distrain, and punish, &c. after the quantity of lands, tenements, and rents, by the number of acres and perches, after the rate of every person's portion or profit, or after the quantity of common of pasture, or common of fishing, or other commodity there, by such ways and means, and in such manner and form, as to you, or six of you, shall seem most convenient.
The commissioners of sewers within the isle of Ely did tax Fendrayton, Samsey, and other towns generally, namely, one entire sum upon the town of Fendrayton, another upon Samsey, &c. The lords of the council wrote to myself, the chief justice of the common pleas, and unto justice Daniel and justice Foster, to certify our opinions, whether such a general taxation were good in law. Another question was also referred to us, whereof no question is now made and as to this question we certified, and so I have reported as followeth, That the taxation ought to have these qualities: 1. It ought to be according to the quantity of lands, tenements, and rents, and by number of acres and perches. 2. According to the rate of every person's portion, tenure or profit, or of the quantity of common of pasture, fishing, or other commodity, wherein we erred not, for they be the very words and texts of the law, and of the commission. Therefore we concluded, that the said taxation of an entire sum in gross upon town is not warranted by their commission, &c. And being demanded by your Majesty's commandment, whether I do think the said resolution concerning the said general taxation to be law, I could have wished, that I could have heard council learned again on both sides, as I and the other judges did, when we resolved this point: and now being seven years past since the said resolution, and by all this time I never hearing any objection against it, I have considered of this case, as seriously as I could within this short time, and without conference with any; and mine humble answer is, That for any thing that I can conceive to the contrary, I remain still of my former opinion, and have, 1. As I take it, the express text and meaning of the law to warrant mine opinion. 2. Seeing that one town is of greater value, and subject to more danger, than another, the general taxation Lib. 8. Lib. 11.
of a town cannot, as I take it, be just, unless the particular lands, &c. and loss be known, for the total must rise upon the particulars; and if the particulars be known, then may the taxations be in particular. As it ought, as I take it, to be according to the express words of the act and commission.
3. The makers of the act did thereby provide, That every man should be equally charged, according to his benefit or loss; but if the general taxations should be good, then might the entire tax set upon the town be levied of any one man or some few men of that town; which should be unequal, and against the express words of the act and commission; and if it should be in the power of their officer to levy the whole taxation upon whom he will, it would be a means of much corruption and inconvenience; all which the makers of the act did wisely foresee by the express words of the act.
4. If the taxation be in particular, according to the number of acres, &c. which may easily be known, it may, as I take it, be easily done.
5. It was not only the resolution of the said three judges, but it hath been ruled and adjudged by divers other judges in other rates accordingly.
All which notwithstanding I most humbly submit myself herein to your Majesty's princely censure and judgment.
The humble and direct Answer to the Questions upon D'ARCY'S Case.
THE statute of 3 of E. 4. cap. 4. at the humble petition of the card-makers, &c. within England, prohibiteth, amongst other things, the bringing into the realm of all foreign playing cards upon certain penalties. Queen Elizabeth, in the fortieth year of her reign, granted to Sir Ed. D'Arcy, his executors, deputies, and assigns, for twenty-one years, to have the sole making of playing cards within the realm, and the sole importation of foreign playing cards: and that no other should either make any such cards, within the realm, or import any foreign cards, but only the said Sir Ed. D'Arcy, his executors, deputies, and assigns, notwithstanding the said act.
The point concerning the sole making of cards within the realm is not questioned; the only question now is concerning the sole importation.
It was resolved, that the dispensation or licence to have the sole importation or merchandizing of cards, without any limitation or stint, is utterly against the law.
And your Majesty's commandment having been signified to me, to know, whether my judgment be, as I report it to be resolved, in most humble manner I offer this answer to your Majesty; That I am of opinion, that without all question the late queen by her prerogative might, as your Majesty may, grant licence to any man to import any quantity of the said manufacture whatsoever, with a non obstante of the said statute: and for proof thereof I have cited about fifteen book cases in my report of this case. And the first of those book cases is the
2 H. 7. fol. 6. by the which it appeareth, that if a penal statute should add a clause, That the king should not grant any dispensation thereof, non obstante the statute; yet the king, notwithstanding that clause of restraint, might grant dispensations at his pleasure with a non obstante thereof. Therefore seeing this royal prerogative and power to grant dispensations to penal laws is so incident and inseparable to the crown, as a clause in an act of parliament cannot restrain it, I am of opinion, that when the late queen granted to Sir Ed. D'Arcy to have the sole importation of this manufacture without limitation, and that no other should import any of the same during 21 years, that the same was not of force either against the late queen, or is of force against your Majesty: for if the said grant were of force, then could not the late queen or your Majesty, during the said term, grant any dispensation of this statute concerning this manufacture to any other for any cause whatsoever; which is utterly against your Majesty's inseparable prerogative, and consequently utterly void; which falleth not out where the licence hath a certain limitation of quantity or stint; for there the crown is not restrained to grant any other licence.
And therefore where it was resolved by Popham chief justice, and the court of king's bench, before I was a judge, That the said dispensation or licence to have the sole importation and merchandizing of cards without any limitation or stint, should be void, I am of the same opinion; for that it is neither against your Majesty's prerogative, nor power in granting of such dispensations; but tendeth to the maintenance of your Majesty's prerogative royal, and may, if it stand with your Majesty's pleasure, be so explained.
Wherein in all humbleness I submit myself to your Majesty's princely censure and judgment. EDW. COKE.
The humble and direct Answer to the Question rising upon GODFREY'S Case.
SOME Courts cannot imprison, fine, nor amerce, as ecclesiastical courts holden before the ordinary, archdeacon, or their commissaries and such like, which proceed according to the common or civil law.
And being commanded to explain what I meant by this passage, I answer, that I intended only those ecclesiastical courts there named and such like, that is, such like ecclesiastical courts, as peculiars, &c.
And within these words, (And such like,) I never did nor could intend thereby the high commission: for that is grounded upon an act of parliament, and the king's letters patents under the great seal. Therefore these words commissaries and such like cannot be extended to the high commission, but, as I have said, to inferior ecclesiastical courts.
Neither did I thereby intend the court of the admiralty; for that is not a like court to the courts be fore named; for those be ecclesiastical courts, and this is temporal. But I referred the reader to the
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.
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, 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 any, 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
In all which I most humbly submit myself to your
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.
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
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. | cessarit 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 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.
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
The humble and direct Answer to the last Question arising upon BAGG's Case.
Ir 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.
the judges of England may be called hereunto.
To the Right Honourable his singular good Lord, the Earl of Buckingham, of his Majesty's Privy Council.*
The Letter to the Judges.
MAY IT PLEASE YOUR LORDSHIP,
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 ABOVE a year past, in my late lord chancellor's other judges are called to the others formerly named. time, information was given to his Majesty, that I Now our pleasure and intention being to be informhaving published in eleven works or books of Re-ed of the whole truth, and that right be done to all, ports, containing above 600 cases one with another, do think it fit, that all the judges of England, and had written many things against his Majesty's pre- barons of the exchequer, who have principal care of rogative. And I being by his Majesty's gracious our prerogative and benefit, do assemble together favour called thereunto, all the exceptions, that could concerning the discussing of that, which, as is aforebe taken to so many cases in so many books, fell to said, was formerly referred; and also what cases five, and the most of them too were by passages in Sir Edward Coke hath published to the maintegeneral words; all which I offered to explain in nance of our prerogative and benefit, for the safety such sort, as no shadow should remain against his and increase of the revenues of the church, and for Majesty's prerogative, as in truth there did not; the quieting of men's inheritances, and the general which whether it were related to his Majesty, I good of the commonwealth in all which we reknow not. But thereupon the matter hath slept all quire your advice and careful considerations; and this time; and now the matter, after this ever blessed that before you make any certificate to us you conmarriage, is revived, and two judges are called by fer with the said Sir Edward, so as all things may my lord keeper to the former, that were named. be the better cleared. 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 October or November, 1617. Note by Mr. Stephens.
*There is no date to this letter, but I conceive it written in
To all the Judges of England, and Barons of the
THE LAST WILL
FRANCIS BACON, VISCOUNT ST. ALBAN.
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.
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 Also, whereas I have made up two register-books, coach mares and caroache; I give also and grant the one of my orations or speeches, the other of my to my wife the one half of the rent which was reepistles or letters, whereof there may be use; and served upon Read's lease for her life; which rent yet because they touch upon business of state, they although I intended to her merely for her better are not fit to be put into the hands but of some maintenance while she lived at her own charge, counsellor, I do devise and bequeath them to the and not to continue after my death; yet because she right honourable my very good lord bishop of Lin- has begun to receive it, I am content to continue it coln, and the chancellor of his Majesty's duchy of to her and I conceive by this advancement, which Lancaster. Also I desire my executors, especially first and last I have left her, besides her own inmy brother Constable, and also Mr. Bosvile, pre-heritance, 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.
sently 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
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.