NOTES UPON LORD LATIMER'S CASE.

50 Edw. 3. His offences were very high and

Doubtless, my lord, this interprets that of the manuscript story

the Lord Viscount St. Alban.

"The case of the judgment in parliament, upon a writ of error put by Just. Hu.*

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 value, without paying any thing; and for ransoming divers parishes there to the sum of 83,0002. contrary to the articles of truce proclaimed by the king; for suffering his deputies and lieutenants in Bretagne to exact, upon the towns and countries there, divers sums of money, to the sum of 150,000 crowns; for sharing with Richard Lyons in his deceit of the king; for enlarging, by his own authority, divers felons; and divers

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 of those horrible and treasonable offences, he was displaced from his office, and disabled to be of the king's council; but his honours not touched, and

"The case of no judgment entered into the court of augmentations, or survey of first-fruits; which are dissolved, where there may be an entry after, out of a paper-book.

"Mem. All the acts of my proceedings were after the royal assent to the subsidy.”

QUESTIONS DEMANDED OF THE CHIEF JUSTICE
OF THE KING'S BENCH BY HIS MAJESTY'S
COMMANDMENT.

1. In the case of the isle of Ely, whether his

he was presently bailed by some of the lords, lordship thinks that resolution there spoken of to and suffered to go at large.

JOHN LORD NEVILLE'S CASE.

50 Edw. 3. His offences were, the not supply ing the full number of the soldiers in Bretagne, according to the allowance of the king's pay. And the second was for buying certain debts, due from the king, to his own lucre, and giving the parties small recompense, and specially in a case of the Lady Ravensholme.

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 particular person, according to the quantity of and according to the portion of the profit, which his land, and by number of acres and perches;

every one hath there.

judgment be as he reporteth it to be resolved; 2. In Darcy's case, whether his lordship's that the dispensation or license 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

And it was prayed by the Commons, that he might be put out of office about the king: but there was no judgment given upon that prayer, 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 ordinary archdeacon, etc., or other commissioners, and such like, which proceed according to the canon or civil law.

merits.

MY LORD,

If your lordship have done with that "Mascardus de Interpretatione Statutorum,' ,"* I shall be glad, that you would give order that I might use it. And for that of 12 Hen. 7, touching the grand council in the manuscript, I have since seen a privy seal of the time of Henry 7, (without a year,) directed to borrow for the king; and in it there is a recital of a grand council, which thought, that such a sum was fit to be levied; whereof the lords gave 40,000l., and the rest was to be gotten by privy seal upon loan.

Alderani Mascardi communes conclusiones utriusque juris ad generalem statutorum interpretationem accommodata: printed at Ferrara, 1608.

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 proceedings, but other errors and misdemeanors extra-judicial, tending to the breach of peace, oppression of subjects, or to the raising of faction, controversies, debate, or to any manner of misgovernment. So no wrong or injury can be done,

• Hutton.

but, that this shall be reformed or punished by due course of law.

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 Henry 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, etc., who hath any lands or tenements, or common of pasture, or hath, or may have, any loss, etc.; and all these persons to tax, distrain, and punish, etc., 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, etc. 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,

former opinion, and have, as I take it, the express text and meaning of the law to warrant mine opinion. Seeing that one town is of greater value, and subject to more danger, than another, the general taxation of a town cannot, as I take 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 I take it, to be according to the express words of the act and commission.

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.

If the taxation be in particular, according to the number of acres, etc., which may easily be known, it may, as I take it, be easily done.

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.

EDW. COKE.

QUESTION UPON D'ARCY'S CASE.

THE statute of 3 of E. IV. cap. 4, at the humble petition of the card-makers, etc. 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.

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 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 text of the law, and of the commission. Therefore we concluded, that the said taxation of an entire sum in gross upon a town is not warranted by their commission, etc. 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 VOL. II.-67

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 license to have the sole importation or merchandising of cards, without any limitation or stint, is utterly against the law.

2 Y

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, etc.

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.

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 license 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. VII. fol. 6, by the which it appeareth, that if a penal statute should add a clause, That the king should 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 JOHN SELDEN, ESQ., TO THE LORD VISCOUNT

falleth not out where the license hath a certain limitation of quantity or stint; for there the crown is not restrained to grant any other license.

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 license to have the sole importation and merchandising 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.

Neither did I thereby intend the court of the admiralty; for that is not a like court to the courts before named; for those be ecclesiastical courts, and this is temporal. But I referred the reader to the case in Brooks's Abridgment, 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 transgressions 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 princely judgment. EDW. COKE.

ST. ALBAN.

MY MOST HONOURED LORD,

At your last going to Gorhambury, you were pleased to have speech with me about some passages of parliament; touching which, I conceived, by your lordship, that I should have had farther direction by a gentleman, to whom you committed some care and consideration of your lordship's intentions therein. I can only give this account of it, that never was any man more willing or ready to do your lordship service, than myself; and in that you then spake of, I had been most forward to have done whatsoever I had been, by farther direction, used in. But I understood, that your lordship's pleasure that way was changed. Since, my lord, I was advised with, touching the judgments given in the late parlia 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 session, but only a convention, as the proclamamation calls it; yet the judgments given in the Upper House, if no other reason be against them, are good; for they are given by the lords, or the Upper House, by virtue of that ordinary authority, which they have as the supreme court of judicature; which is easily to be conceived, without

ment.

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 fall out, upon fuller consideration, to be thought a session also. Were it not for the proclamation, I should be clearly of that mind; neither doth the clause, in the act of subsidy, hinder it. For that only prevented the determination of the session at that instant; but did not prevent the being of a session, whensoever the parliament should be dissolved. But, because that point was resolved in the proclamation, and also in the commission of dissolution on the 8th of February, I will rest satisfied.

But there are also examples of former times, that may direct us in that point of the judgment, in regard there is store of judgments of parliament, especially under Edward I. and Edward II. in such conventions, as never had, for aught appears, any act passed in them.

But in this case there are none of these: neither doth any thing seem to help to make a record of it, than only this, that the clerk may enter it, now after the parliament; which, I doubt, he cannot. Because, although in other courts the clerks enter all, and make their records after the term; yet, in this parliamentary proceeding it falls out, that the court being dissolved, the clerk cannot be said to have such a relation to the parliament, which is not then at all in being, as the prothonotaries of the courts of Westminster have to their courts, which stand only adjourned. Besides, there cannot be an example found, by which it may appear, that ever any record of the first kind, where the transcript is into the chancery, was made in parliament; but only sitting the House, and in their view. But this I offer to your lordship's farther consideration, desiring your favour

Next, my lord, I conceive thus; that by reasonable 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 them, proceeded to judgment verbally; and the notes of their judgments are taken by the clerk,

Your lordship's most humble servant,
J. SELDEN.
From the Temple, February

XIV, CICDCXXI.

MISCELLANEOUS.