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NOTES UPON LORD LATIMER'S CASE.

Doubtless, my lord, this interprets that of the

manuscript story 50 Edw. 3. His offences were very high and heinous, drawing upon high treason: as the ex- On the back of this letter are the following notes by tortious taking of victuals in Bretagne, to a great

the Lord Viscount St. Alban. value, without paying any thing; and for ran- • The case of the judgment in parliament, upon soming divers parishes there to the sum of 83,0001.

a writ of error put by Just. Hu. contrary to the articles of truce proclaimed by the king; for suffering his deputies and lieutenants

“The case of no judgment entered into the court in Bretagne to exact, upon the towns and coun- of augmentations, or survey of first-fruits; which tries there, divers sums of money, to the sum

are dissolved, where there may be an entry after, of 150,000 crowns; for sharing with Richard

out of a paper-book. Lyons in his deceit of the king; for enlarging,

Mem. All the acts of my proceedings were by his own authority, divers felons; and divers after the royal assent to the subsidy." other exorbitant offences.

Notwithstanding all this, his judgment was only to be committed to the Marshalsea, and to make fine and ransom at the king's will.

But after, at the suit of the Commons, in regard QUESTIONS DEMANDED OF THE CHIEF JUSTICE of those horrible and treasonable offences, he was OF THE KING'S BENCH BY HIS MAJESTY'S displaced from his office, and disabled to be of the COMMANDMENT. king's council; but his honours not touched, and he was presently bailed by some of the lords, lordship thinks that resolution there spoken of to

1. In the case of the isle of Ely, whether his and suffered to go at large.

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 JOHN LORD NEVILLE'S CASE.

particular person, according to the quantity of 50 Edw. 3. His offences were, the not supply and according to the portion of the profit, which

his land, and by number of acres and perches ; ing the full number of the soldiers in Bretagne,

every one hath there. according to the allowance of the king's pay.

2. In Darcy's case, whether his lordship's And the second was for buying certain debts, due from the king, to his own luere, and giving the that the dispensation or license of Queen Eliza

judgment be as he reporteth it to be resolved ; parties small recompense, and specially in a case beth to Darcy to have the sole importation of of the Lady Ravensholme. And it was prayed by the Commons, that he

cards, notwithstanding the statute, 3 E. 4, is

against law. might be put out of office about the king: but there was no judgment given upon that prayer,

3. In Godfrey's case, what he means by this but only of restitution to the lady, and a general

passage, Some courts cannot imprison, fine, or clause of being punished according to his de- amerce, as ecclesiastical courts before the ordi

nary archdeacon, etc., or other commissioners, and merits.

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 My LORD,

law shall control acts of parliament, and someIf your lordship have done with that “ Mascar- times shall judge them to be merely void : For dus de Interpretatione Statutorum,"'* I shall be where an act of parliament is against common glad, that you would give order that I might use right and reason, the law shall control it, and it. And for that of 12 Hen. 7, touching the adjudge it void. grand council in the manuscript, I have since 5. In Bagges's case, to explain himself where seen a privy seal of the time of Henry 7, he saith, That to the court of king's bench belongs (without a year,) directed to borrow for the king; authority, not only to correct errors in judicial and in it there is a recital of a grand council, proceedings, but other errors and misdemeanors which thought, that such a sum was fit to be extra-judicial, tending to the breach of peace, levied; whereof the lords gave 40,0001., and the oppression of subjects, or to the raising of faction, rest was to be gotten by privy seal upon loan. controversies, debate, or to any manner of mis.

government. So no wrong or injury can be dones • Alderani Mascardi communes conclusiones utriusque juris ad generalem statutorum interpretationer accommoduia: printed at Ferrara, 1608.

• Dutton.

act.

but, that this shall be reformed or punished by due former opinion, and have, as I take it, the express course of law.

text and meaning of the law to warrant mine I received these questions the 17th of this in- opinion. Seeing that one town is of greater

stant October, being Thursday; and this 21st value, and subject to more danger, than another, day of the same month I made these answers the general taxation of a town cannot, as I take following:

it, be just, unless the particular lands, etc., 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 THE HUMBLE AND DIRECT ANSWER TO THE I take it, to be according to the express words of

QUESTIONS UPON THE CASE OF THE ISLE the act and cominission.
OF ELY.

The makers of the act did thereby provide, That The statute of the 23 Henry VIII. cap. 5, pre- every man should be equally charged, according scribeth the commission of sewers to be according to his benefit or loss; but if the general taxations to the manner, form, tenure, and effect hereafter should be good, then might the entire tax set upon ensuing, namely, to inquire by the oath of men, the town be levied of any one man or some few etc., who hath any lands or tenements, or common

men of that town; which should be unequal, and of pasture, or hath, or may have, any loss, etc.; against the express words of the act and commisand all these persons to tax, distrain, and punish, sion; and if it should be in the power of their etc., after the quantity of lands, tenements, and officer to levy the whole taxation upon whom he rents, by the number of acres and perches, after will, it would be a means of much corruption and the rate of every person's portion or profit, or after inconvenience; all which the makers of the act the quantity of common of pasture, or common of did wisely foresee by the express words of the fishing, or other commodity there, by such ways and means, and in such manner and form, as to If the taxation be in particular, according to the you, or six of you, shall seem most convenient. number of acres, etc., which may easily be known,

The commissioners of sewers within the isle it may, as I take it, be easily done. of Ely did tax Fendrayton, Samsey, and other It was not only the resolution of the said three towns generally, namely, one entire sum upon the judges, but it hath been ruled and adjudged by town of Fendrayton, another upon Samsey, etc. divers other judges in other rates accordingly. The lords of the council wrote to myself, the chief

All which, notwithstanding, I most humbly subjustice of the common pleas, and unto Justice

mit myself herein to your majesty's princely Daniel and Justice Foster, to certify our opinions,

censure and judgment. whether such a general taxation were good in law.

Epw, CoKE. . 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 : THE HUMBLE AND DIRECT ANSWER TO THE 1. It ought to be according to the quantity of QUESTION UPON D'ARCY'S CASE. lands, tenements, and rents, and by number of acres and perches. 2. According to the rate The statute of 3 of E. IV. cap. 4, at the humble of every person's portion, tenure, or profit, or of petition of the card-makers, etc. within England, the quantity of common of pasture, fishing, or prohibiteth, amongst other things, the bringing other commodity, wherein we erred not, for they into the realm of all foreign playing cards upon be the very words and text of the law, and of the certain penalties. Queen Elizabeth, in the fortieth commission. Therefore we concluded, that the year of her reign, granted to Sir Ed. D'Arcy, his said taxation of an entire sum in gross upon a executors, deputies, and assigns, for twenty-one town is not warranted by their cominission, etc. years, to have the sole making of playing cards And being demanded by your majesty's com- within the realm, and the sole importation of mandment, whether I do think the said resolution foreign playing cards; and that no other should concerning the said general taxation to be law, I either make any such cards, within the realm, or could have wished, that I could have heard coun- import any foreign cards, but only the said Sir cil learned again on both sides, as I and the other Ed. D'Arcy, his executors, deputies, and assigns, judges did, when we resolved this point; and notwithstanding the said act. now being seven years past since the said resolu- The point concerning the sole making of cards tion, and by all this time I never hearing any within the realm is not questioned: the only quesobjection against it, I have considered of this tion now is concerning the sole importation. case, as seriously as I could within this short It was resolved, that the dispensation or license time, and without conference with any; and mine to have the sole importation or merchandising of humble answer is, That for any thing that I can cards, without any limitation or stint, is utterly conceive to the contrary, I remain still of my against the law. VOL. II.–67

2 Y

And your majesty's commandment having been And being commanded to explain what I meant signified to me, to know, whether my judgment by this passage, I answer, that I intended only be, as I report it to be resolved, in most humble those ecclesiastical courts there named, and such manner I offer this answer to your majesty : That like, that is, such like ecclesiastical courts, as I am of opinion, that without all question the peculiars, etc. late queen by her prerogative might, as your ma- And within these words (And such like) I jesty may, grant license to any man to import any never did nor could intend thereby the high comquantity of the said manufacture whatsoever, with mission; for that is grounded upon an act of a “non obstante” of the said statute: and for parliament, and the king's letters patents under proof thereof I have cited about fifteen book-cases the great seal. Therefore these words “commisin my report of this case. And the first of those saries” and “such like” cannot be extended to book-cases is the 2 H. VII. fol. 6, by the which the high commission, but, as I have said, to init appeareth, that if a penal statute should add a ferior ecclesiastical courts. clause, That the king should grant any dispensa- Neither did I thereby intend the court of the tion thereof, « non obstante” the statute; yet, the admiralty; for that is not a like court to the courts king, notwithstanding that clause of restraint, before named; for those be ecclesiastical courts, might grant dispensations at his pleasure with a and this is temporal. But I referred the reader “non obstante" thereof. Therefore, seeing this to the case in Brooks's Abridgment, pla. 77, where royal prerogative and power to grant dispensations it is that, if the admiral, who proceeded by the to penal laws is so incident and inseparable to the civil law, hold plea of any thing done upon the crown, as a clause in an act of parliament cannot land, that it is void and “coram non judice;" and restrain it, I am of opinion, that when the late that an action of transgressions in that case doth queen granted to Sir Ed. D'Arcy to have the sole lie, as by the said case it appeareth. And, thereimportation of this manufacture without limita- fore, that in that case he can neither fine nor tion, and that no other should import any of the imprison. And therewith agree divers acts of same during 21 years, that the same was not of parliament; and so it may be explained, as it force either against the late queen, or is of force was truly intended. against your majesty: for, if the said grant were All which I most humbly submit to your of force, then could not the late queen or your majesty's princely judgment. majesty, during the said term, grant any dispensa

Edw. Coke. tion 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 JOHN SELDEN, ESQ., TO THE LORD VISCOUNT falleth not out where the license hath a certain

ST. ALBAN. limitation of quantity or stint; for there the crown My mosT HONOURED LORD, is not restrained to grant any other license. At your last going to Gorhambury, you were

And therefore where it was resolved by Popham, pleased to have speech with me about some paschief justice, and the court of king's bench, be- sages of parliament; touching which, I conceived, fore I was a judge, That the said dispensation or by your lordship, that I should have had farther license to have the sole importation and mer- direction by a gentleman, to whom you conmitted chandising of cards without any limitation or some care and consideration of your lordship's stint, should be void, I am of the same opinion; intentions therein. I can only give this account for that it is neither against your majesty's prero- of it, that never was any man more willing or gative, nor power in granting of such dispensa- ready to do your lordship service, than myself; tions; but tendeth to the maintenance of your and in that you then spake of, I had been most majesty's prerogative royal, and may, if it stand forward to have done whatsoever I had been, by with your majesty's pleasure, be so explained. farther direction, used in. But I understood,

Wherein in all humbleness I submit myself to that your lordship’s pleasure that way was your majesty's princely censure and judgmeðt. changed. Since, my lord, I was advised with,

Edw. Coke. touching the judgments given in the late parlia

ment. For them, if it please your lordship to hear my weak judgment expressed freely to you,

I conceive thus. First, that admitting it were no THE HUMBLE AND DIRECT ANSWER TO THE

session, but only a convention, as the proclamaQUESTION RISING UPON GODFREY'S CASE.

mation calls it; yet the judgments given in the SOME courts cannot imprison, fine, nor amerce, Upper House, if no other reason be against them, as ecclesiastical courts holden before the ordinary, are good; for they are given by the lords, or the archdeacon, or their commissaries and such like, Upper House, by virtue of that ordinary authority, which proceed according to the common or civil which they have as the supreme court of judicalaw.

ture; which is easily to be conceived, without

any relation to the matter of session, which con- in the journal only; which, as I think, is no sists only in the passing of acts, or not passing record of itself; neither was it ever used as one. them, with the royal assent. And, though no Now, the record, that in former times was of the session of the three states together be without judgments and proceedings there, was in this such acts so passed; yet, every part of the par- form. The accusation was exhibited in parchliament severally did its own acts legally enough ment; and being so received, and endorsed, was to continue, as the acts of other courts of justice the first record; and that remained filed among are done. And why should any doubts be, but the bills of parliament, it being of itself as the that a judgment out of the king's bench, or ex- bills in the king's bench. Then out of this there chequer chamber, reversed there, had been good, was a formal judgment, with the accusation although no session ? For there was truly a par- entered into that roll, or second record, which the liament, truly an Upper House, which exercised clerk transcribes by ancient use, and sends into by itself this power of judicature, although no the chancery. session. Yet, withal, my lord, I doubt, it will But in this case there are none of these: neither fall out, upon fuller consideration, to be thought doth any thing seem to help to make a record of a session also. Were it not for the proclamation, it, than only this, that the clerk may enter it, now I should be clearly of that mind; neither doth the after the parliament; which, I doubt, he cannot. clause, in the act of subsidy, hinder it. For that Because, although in other courts the clerks enter only prevented the determination of the session at all, and make their records after the term; yet, in that instant; but did not prevent the being of a this parliamentary proceeding it falls out, that the session, whensoever the parliament should be court being dissolved, the clerk cannot be said to dissolved. But, because that point was resolved have such a relation to the parliament, which is in the proclamation, and also in the commission not then at all in being, as the prothonotaries of of dissolution on the 8th of February, I will rest the courts of Westminster have to their courts, satisfied.

which stand only adjourned. Besides, there But there are also examples of former times, cannot be an example found, by which it may that may direct us in that point of the judgment, appear, that ever any record of the first kind, in regard there is store of judgments of parlia- where the transcript is into the chancery, was ment, especially under Edward I. and Edward II. made in parliament; but only sitting the House, in such conventions, as never had, for aught and in their view. But this I offer to your lordappears, any act passed in them.

ship's farther consideration, desiring your favourNext, my lord, I conceive thus; that by reason able censure of my fancy herein; which, with there is no record of those judgments, it may be whatsoever ability I may pretend to, shall ever justly thought, that they are of no force. For, be desirous to serve you, to whom I shall perthus it stands. The Lower House exhibited the petually own myself declarations in paper ; and the lords, receiving Your lordship's most humble servant, them, proceeded to judgment verbally; and the

J. SELDEN.

From the Temple, February notes of their judgments are taken by the clerk,

XIV, CICDCXXI.

MISCELLANEOUS.

THE FIRST COPY OF MY DISCOURSE TOUCH- all practice bootless, as that which is assured to

gether, not knowing whom to trust, and thinking ING THE SAFETY OF THE QUEEN'S PERSON.

be discovered. And to this purpose, to speak These be the principal remedies, I could think reverently, as becometh me, as I do not doubt but of, for extirping the principal cause of those con

those honourable counsellors, to whom it doth spiracies, by the breaking the nest of those fugi- appertain, do carefully and sufficiently provide tive traitors, and the filling them full of terror,

and take order, that her majesty receive good indespair, jealousy, and revolt. And it is true, 1 telligence ; so yet, under correction, methinks it is thought of some other remedies, which, because not done with that glory and note of the world, in mine own conceit I did not so well allow, 1 which was in Mr. Secretary Walsingham’s* time; therefore do forbear to express. And so likewise

and in this case, as was said, opinio veritate major. I have thought, and thought again, of the means

The second remedy I deliver with less assurto stop and divert as well the attempts of violence, ance, as that, which is more removed from the as poison, in the performance and execution. But compass of mine understanding; and that is, to not knowing how my travel may be accepted, be treat and negotiate with the King of Spain, or ing the unwarranted wishes of a private man, I Archduke Ernest, who resides in the place, leave; humbly praying her majesty's pardon, if where these conspiracies are most forged, upon in the zeal of my simplicity I have roved at things

the point of the law of nations, upon which kind above my aim.

of points, princes' enemies may with honour negotiate, viz. that, contrary to the same law of nations, and the sacred dignity of kings, and the

honour of arms, certain of her majesty's subjects THE FIRST FRAGMENTS OF A DISCOURSE ministers) refuged in his dominions, have con

(if it be not thought meet to impeach any of his TOUCHING INTELLIGENCE AND THE

spired and practised assassination against her SAFETY OF THE QUEEN'S PERSON.

majesty's person. The first remedy, in my poor opinion, is that

* Who died April 6th, 1590. After his death the business against which, as I conceive, least exception can of secretary of state appears to be chiefly done by Mr. Robert be taken, as a thing without controversy, honour. Cecil, who was knighted by Queen Elizabeth at Theobald's, able and politic; and that is reputation of good

about the beginning of June, 1591, and in August following intelligence. I say not only good intelligence, tary of state till July 5, 1596.

sworn of the privy council; but not actually appointed secrebut the reputation and fame thereof. For I see, + Ernest, Archduke of Austria, son of the Emperor Maxithat where booths are set for watching thievish milian 11., and governor of the Low Countries, upon which places, there is no more robbing : and though, no time, dying February 11, following. It was probably in pur

government he entered in June, 1591; but held it only a short doubt, the watchmen many times are asleep or suance of the advice of Mr. Francis Bacon in this paper, that away ; yet that is more than the thief knoweth ; Queen Elizabeth sent to the archduke, in 1594, to complain of so as the empty booth is strength and safeguard Count de Fuentes, and Don Diego de Ibarra, and other

the designs which had been formed against her life by the enough. So, likewise, if there be sown an opinion Spanish ministers concerned in governing the Low Countries abroad, that her majesty hath much secret intelli- after the death of Alexander, Duke of Parma, in December,

1592, and by the English fugitives there; and to desire him to gence, and that all is full of spies and false signify those facts to the King of Spain, in order that he might brethren; the fugitives will grow into such a vindicate his own character, by punishing his ministers and mutual jealousy and suspicion one of another, as delivering up to her such fugitives as were parties in suck

designs. Camdeni Annales Eliz. Regine, p. 625. Edit. Lug. they will not have the confidence to conspire to-duni Bat. 1625.

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