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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 wrong or injury can be done, but, that this shall be your Majesty to have been spared in all service reformed or punished by due course of law.ll concerning the lord chief justice. I thank God, I
I received these questions the 17th of this forget not the fifth petition, Dimitte nobis debita
instant October, being Thursday ; and this nostra sicut, etc. but withal I have learned this dis
21st day of the same month I made these tinction: there is, 1. Remissio vindicte. 2. Remis
answers following: $io pæne.
3. Remissio judicii. The two first I am past, and have freely and clearly remitted. But The humble and direct Answer to the Questions upon the last, which is of judgment and discretion, I trust
the Case of the Isle of Ely. I may in christianity and good conscience retain, and not to trust too far, &c.
The statute of the 23 H. VIII. cap. 5, prescribeth I must beseech your Majesty's favour to excuse the commission of sewers to be according to the me for all that I have here before written, but spe. manner, form, tenure, and effect hereafter ensuing, cially for this last needless passage; wherein I fear namely, to inquire by the oath of men, &c. who your Majesty will note me to play the divine, with hath any lands or tenements, or common of pasture, out learning, and out of season. So with my conti- or hath, or may have, any loss, &c. and all these nual prayers to God to preserve your Majesty with persons to tax, distrain, and punish, &c. after the long, healthful, and happy life, and all earthly and quantity of lands, tenements, and rents, by the numheavenly felicity, I rest
ber of acres and perches, after the rate of every Your Majesty's humble and faithful subject person's portion or profit, or after the quantity of and servant,
common of pasture, or common of fishing, or other T. ELLESMERE, CANC. commodity there, by such ways and means, and in At York-house, 22 Oct. 1616.
such manner and form, as to you, or six of shall
you, seem most convenient.
The commissioners of sewers within the isle
of Ely did tax Fendrayton, Samsey, and other towns Questions demanded of the Chief Justice of the generally, namely, one entire sum upon the town of King's Bench by his Majesty's commandment.
Fendrayton, another upon Samsey, &c. The lords
of the council wrote to myself, the chief justice of 1. In the case of the isle of Ely, whether his the common pleas, and unto justice Daniel and lordship thinks that resolution there spoken of to be justice Foster, to certify our opinions, whether law; That a general taxation upon a town, to pay so such a general taxation were good in law. Another much towards the repair of the sea-banks, is not question was also referred to us, whereof no queswarranted to be done by the commissioners of tion is now made : and as to this question we cersewers ; but that the same must be upon every par- tified, and so I have reported as followeth, That ticular person, according to the quantity of his land, the taxation ought to have these qualities : 1. It and by number of acres and perches; and according ought to be according to the quantity of lands, teneto the portion of the profit, which every one hath ments, and rents, and by number of acres and there.*
perches. 2. According to the rate of every person's 2. In Darcy's case, whether his lordship's judg- portion, tenure or profit, or of the quantity of common ment be as he reporteth it to be resolved; that the of pasture, fishing, or other commodity, wherein dispensation or licence of queen Elizabeth to Darcy we erred not, for they be the very words and texts to have the sole importation of cards, notwithstand of the law, and of the commission. Therefore we ing the statute, 3 E. 4, is against law.t
concluded, that the said taxation of an entire sum 3. In Godfrey's case, what he means by this in gross upon town is not warranted by their compassage, Some courts cannot imprison, fine, or mission, &c. And being demanded by your Maamerce, as ecclesiastical courts before the ordinary jesty's commandment, whether I do think the said archdeacon, &c. or other commissioners, and such resolution concerning the said general taxation to like, which proceed according to the canon or civil be law, I could have wished, that I could have
heard council learned again on both sides, as I and 4. In Dr. Bonham's case, what he means by this the other judges did, when we resolved this point: passage, That in many cases the common law shall and now being seven years past since the said control acts of parliament, and sometimes shall resolution, and by all this time I never hearing any judge them to be merely void : For where an act of objection against it, I have considered of this case, parliament is against common right and reason, the as seriously as I could within this short time, and law shall control it, and adjudge it void.ş
without conference with any; and mine humble 5. In Bagges's case, to explain himself where he answer is, That for any thing that I can conceive saith, That to the court of king's bench belongs to the contrary, I remain still of my former opinion, authority
, not only to correct errors in judicial pro and have, 1. As I take it, the express text and ceedings, but other errors and misdemeanors extra- meaning of the law to warrant mine opinion. 2. judicial, tending to the breach of peace, oppression Seeing that one town is of greater
value, and subject of subjects , or to the raising of faction, controversies, to more danger, than another, the general taxation + Lib. II.
|| Lib. 11.
• Lib. 10.
of a town cannot, as I take it, be just, unless the 2 H. 7. fol. 6. by the which it appeareth, that if a particular lands, &c. and loss be known, for the penal statute should add a clause, That the king total must rise upon the particulars; and if the should not grant any dispensation thereof, non obparticulars be known, then may the taxations be instante the statute ; yet the king, notwithstanding particular. As it ought, as I take it, to be according that clause of restraint, might grant dispensations to the express words of the act and commission. at his pleasure with a non obstante thereof. There
3. The makers of the act did thereby provide, fore seeing this royal prerogative and power to That every man should be equally charged, accord grant dispensations to penal laws is so incident and ing to his benefit or loss; but if the general taxa- inseparable to the crown, as a clause in an act of tions should be good, then might the entire tax set parliament cannot restrain it, I am of opinion, that upon the town be levied of any one man or some when the late queen granted to Sir Ed. D'Arcy to few men of that town; which should be unequal, have the sole importation of this manufacture withand against the express words of the act and com-out limitation, and that no other should import any mission; and if it should be in the power of their of the same during 21 years, that the same was not officer to levy the whole taxation upon whom he of force either against the late queen, or is of force will, it would be a means of much corruption and against your Majesty : for if the said grant were of inconvenience; all which the makers of the act did force, then could not the late queen or your Majesty, wisely foresee by the express words of the act. during the said term, grant any dispensation of this
4. If the taxation be in particular, according to statute concerning this manufacture to any other for the number of acres, &c. which may easily be known, any cause whatsoever; which is utterly against it may, as I take it, be easily done.
your Majesty's inseparable prerogative, and conse5. It was not only the resolution of the said quently utterly void ; which falleth not out where three judges, but it hath been ruled and adjudged the licence hath a certain limitation of quantity or by divers other judges in other rates accordingly. stint; for there the crown is not restrained to grant
All which notwithstanding I most humbly any other licence.
submit myself herein to your Majesty's And therefore where it was resolved by Popham princely censure and judgment.
chief justice, and the court of king's bench, before EDW. COKE. 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, The humble and direct Answer to the Questions upon against your Majesty's prerogative, nor power in
I am of the same opinion; for that it is neither D'Arcy's Case.
granting of such dispensations ; but tendeth to the The statute of 3 of E. 4. cap. 4. at the humble maintenance of your Majesty's prerogative royal, petition of the card-makers, &c. within England, and may, if it stand with your Majesty's pleasure, prohibiteth, amongst other things, the bringing into be so explained. the realm of all foreign playing cards upon certain Wherein in all humbleness I submit myself to penalties. Queen Elizabeth, in the fortieth year of your Majesty's princely censure and judgment. her reign, granted to Sir Ed. D'Arcy, his executors,
EDW. COKE. 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 | The humble and direct Answer to the Question cards, within the realm, or import any foreign cards,
rising upon Godfrey's Case. but only the said Sir Ed. D'Arcy, his executors, deputies, and assigns, notwithstanding the said act. Some courts cannot imprison, fine, nor amerce, as
The point concerning the sole making of cards ecclesiastical courts holden before the ordinary, within the realm is not questioned; the only ques- archdeacon, or their commissaries and such like, tion now is concerning the sole importation. which proceed according to the common or civil law.
It was resolved, that the dispensation or licence And being commanded to explain what I meant to have the sole importation or merchandizing of by this passage, I answer, that I intended only those cards, without any limitation or stint, is utterly ecclesiastical courts there named and such like, that against the law.
is, such like ecclesiastical courts, as peculiars, &c. And your Majesty's commandment having been And within these words, (And such like,) I never signified to me, to know, whether my judgment be, did nor could intend thereby the high commission ; as I report it to be resolved, in most humble man- for that is grounded upon an act of parliament, and ner I offer this answer to your Majesty ; That I am the king's letters patents under the great seal. of opinion, that without all question the late queen Therefore these words commissaries and such like by her prerogative might, as your Majesty may, cannot be extended to the high commission, but, as grant licence to any man to import any quantity of I have said, to inferior ecclesiastical courts. the said manufacture whatsoever, with a non obstante Neither did I thereby intend the court of the adof the said statute : and for proof thereof I have miralty; for that is not a like court to the courts becited about fifteen book cases in my report of this fore named; for those be ecclesiastical courts, and
And the first of those book cases is the | this is temporal. But I referred the reader to the
case in Brooks's Abridgement, pla. 77, where it is common seal ; that the common seal shall be in the that, if the admiral, who proceeded by the civil law, custody of the prior, which is under the abbot, and hold plea of any thing done upon the land, that it four others of the discreetest of the house; and that is void and coram non judice; and that an action of any deed sealed with the common seal, that is not trangressions in that case doth lie, as by the said so kept, shall be void. And the opinion in the 27 case it appeareth. And therefore that in that case H. 6. tit. Annuity 41, was, that this statute is void ; he can neither fine nor imprison. And therewith for the words of the book are, it is impertinent to agree divers acts of parliament; and so it may be be observed : for the seal being in their custody, the explained, as it was truly intended.
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 : The humble and direct Answer to the Fourth Ques- “Et insuper ordinavit dominus rex et statuit, quod tion arising out of Dr. Bonham's Case. abbates Cistercienses et Præmonstratenses ordinum
religiosorum, etc. de cetero habeant sigillum comIn this case I am required to deliver what I mean mune, et illud in custodia prioris monasterii seu do by this passage therein, That in many cases the mus et quatuor de dignioribus et discretioribus common law shall control acts of parliament; and ejusdem loci conventus sub privato sigillo abbatis sometimes shall adjudge them to be merely void ; ipsius loci custod. deponend. Et si forsan aliqua for where an act of parliament is against common scripta obligationum, donationum, emptionum, venright and reason, the common law shall control it, ditionum, alienationum, seu aliorum quorumcunque and adjudge it to be void.
contractuum alio sigillo quam tali sigillo communi The words of my report do not import any new sicut præmittitur custodit, inveniatur amodo, sigilopinion, but only a relation of such authorities of lata pro nullo penitus habeantur, omnique careant law, as had been adjudged and resolved in ancient firmitate.' So the statute of 1 E. 6. cap. 14, gives and former times, and were cited in the argument of chanteries, &c. to the king, saving to the donor, &c. Bonham's case ; and therefore the words of my book all such rents, services, &c. and the common law are these, “ It appeareth in our books, that in many controls this, and adjudges it void as to the services; cases the common law shall control acts of parlia- and the donor shall have the rent as a rent-seck to ment, and sometimes shall adjudge them to be distrain of common right; for it should be against utterly void ; for when an act of parliament is against common right and reason, that the king should hold common right and reason, or repugnant or impos- of any, or do suit to any of his subjects, 14 Eliz. sible to be performed, the common law shall control Dyer, 313. And so it was adjudged Mich. 16 and this, and adjudge such act to be void.” And 17 Eliz. in the common place in Stroud's case. So therefore in 8 E. 3. 30, Thomas Tregor's case, upon if any act of parliament give to any to hold, or to the statute of West. 2. cap. 38, et artic. super cart. have conusance of all manner of pleas before him cap. 9, Herle saith, Some statutes are made against arising within his manor of D. yet he shall hold no law and right, which they, that made them, perceiv- plea whereunto himself is a party, for Iniquum est ing, would not put them in execution.
aliquem suæ rei esse judicem. The statute of H. 2. cap. 21, gives a writ of Which cases being cited in the argument of this " Cessavit hæredi petenti super hæredem tenent et case, and I finding them truly vouched, I reported
I super eos, quibus alienatum fuerit hujusmodi tene- them in this case, as my part was, and had no other mentum.” And yet it is adjudged in 33 E. 3. tit. meaning than so far as those particular cases there tessavit 42, where the case was, Two co-partners, cited do extend unto. And therefore the beginning lords and tenant by fealty and certain rent; the one is, It appeareth in our books, &c.
And so it may Co-partner hath issue, and dieth, the aunt and the be explained, as it was truly intended. niece shall not join in a cessavit, because that the In all which I most humbly submit myself to your heir shall not have a cessavit, for the cessor in his Majesty's princely censure and judgment. ancestor's time. Fitz. N. B. 209, F. and herewith
EDW. COKE. 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 cessarit for the cessor in the time of his
arising upon Bagg's Case. ancestor ; for the arrearages incurred in the life of his ancestor do not belong to the heir.
It was resolved, that to this court of the king's And because that this is against common right bench belongeth authority not only to correct errors and reason, the common law adjudges the said act in judicial proceedings, but other errors and misof parliament as to this point void. The statute of demeanors tending to the breach of the peace, or Carlile made anno 35 E. 1. enacteth, That the order oppression of the subjects, or to the raising of facof the Cistertians and Augustins have a convent and tion or other misgovernment: so that no wrong or injury either public or private can be done, but it the judges of England may be called hereunto. 2. shall be reformed and punished by law.
That they may certify also what cases I have pubBeing commanded to explain myself concerning lished for his Majesty's prerogative and benefit
, for these words, and principally concerning this word, the good of the church, and quieting of men's inmisgovernment;
heritances, and good of the commonwealth; for I answer, that the subject matter of that case con- which purpose I have drawn a minute of a letter to cerned the misgovernment of the mayors and other the judges, which I assure myself your lordship will the magistrates of Plymouth.
judge reasonable; and so reposing myself upon your And I intended for the persons the misgovernment lordship's protection I shall ever remain of such inferior magistrates for the matters in com
Your most bounden servant, mitting wrong or injury, either public or private,
EDW. COKE. punishable by law, and therefore the last clause was added, “ And so no wrong or injury, either public
Superscribed, or private, can be done, but it shall be reformed and to the Right Honourable his singular good Lord, punished by law ;” and the rule is “ Verba intelli- the Earl of Buckingham, of his Majesty's Pricy genda sunt secundum subjectam materiam.”
Council,* And that they and other corporations might know, that factions and other misgovernments amongst them, either by oppression, bribery, unjust disfran
The Letter to the Judges. chisements, or other wrong or injury, public or private, are to be redressed and punished by law, it WHEREAS in the time of the late lord chancellor was so reported.
intimation was given unto us, that divers cases were But if any scruple remains to clear it, these words published in Sir Edward's Coke's Reports, tending may be added, “ by inferior magistrates;” and so the to the prejudice of our prerogative royal; whereupon sense shall be by faction or misgovernment of in- we caring for nothing more, as by our kingly office ferior magistrates, so as no wrong or injury, &c. we are bounden, than the preservation of preroga.
All which I most humbly submit to your Majesty's tive royal, referred the same; and thereupon, as we princely judgment.
are informed, the said Sir Edward Coke being called EDW. COKE. 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 MAY IT PLEASE YOUR LORDSHIP,
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 Reed 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, To all the Judges of England, and Barons of the viz. by advice of the judges to explain and publish
Exchequer. as is aforesaid those five points, so as no shadow
* There is no date to this letter, but I conceive it written in may remain against his prerogative; that then all October or November, 1617. Note by Mr. Stephens.
THE LAST WILL
FRANCIS BACON, VISCOUNT ST. ALBAN.
First, I bequeath my soul and body into the pounds; to the poor of Hempstead, where I heard hands of God by the blessed oblation of my Saviour; sermons and prayers to my comfort in the time the one at the time of my dissolution, the other at of the former great plague, twenty pounds ; to the the time of my resurrection. For my burial, I de- poor of Twickenham, where I lived some time at sire it may be in St. Michael's church, near St. Al-Twickenham Park, twenty pounds. I intreat Mr. ban's: there was my mother buried, and it is the Shute, of Lombard-street, to preach my funeral serparish church of my mansion-house of Gorhambury, mon, and to him in that respect I give twenty and it is the only christian church within the walls of pounds; or if he cannot be had, Mr. Peterson, my old Verulam. I would have the charge of my funeral late chaplain, or his brother. not to exceed three hundred pounds at the most. Devises and legacies to my wife: I give, grant, and
For my name and memory I leave it to men's confirm to my loving wife, by this my last will, charitable speeches, and to foreign nations, and the whatsoever hath been assured to her, or mentioned next ages. But, as to that durable part of my me- or intended to be assured to her by any former deed, mory, which consisteth in my works and writings, be it either my lands in Hertfordshire, or the farm I desire my executors, and especially Sir John of the seal, or the gift of goods, in accomplishment Constable and my very good friend Mr. Bosvile, to of my covenants of marriage ; and I give her also take care that of all my writings, both of English the ordinary stuff at Gorhambury, as wainscot taand of Latin, there may be books fair bound and bles, stools, bedding, and the like (always reserving placed in the king's library, and in the library of and excepting the rich hangings with their covers, the university of Cambridge, and in the library of the table-carpets, and the long cushions, and all Trinity College, where myself was bred, and in the other stuff which was or is used in the long gallery ; library of Bennett College, where my father was and also a rich chair, which was my niece Cæsar's bred, and in the library of the university of Oxon-gift, and also the armour, and also all tables of marford, and in the library of my lord of Canterbury, ble and towch). I give also to my wife my four and in the library of Eaton.
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 sently after my decease, to take into their hands all to maintain the estate of a viscountess, and give iny papers whatsoever, which are either in cabi- sufficient tokens of my love and liberality towards nets, boxes, or presses, and them to seal up until her; for I do reckon, and that with the least, that they may at their leisure peruse them.
Gorhambury and my lands in Hertfordshire will be I give and bequeath unto the poor of the parishes worth unto her seven hundred pounds per annum, where I have at any time rested in my pilgrimage, besides woodfells, and the leases of the houses, some little relief according to my poor means: to whereof five hundred pounds per annum only I was the poor of St. Martin in the Fields, where I was tied unto by covenants upon marriage; so as the born, and lived in my first and last days, forty two hundred pounds and better was mere benevopounds; to the poor of St. Michaels near St. Alban's, lence; the six hundred pounds per annum upon the where I desire to be buried, because the day of farm of the writs, was likewise mere benevolence ; death is better than the day of birth, fifty pounds; her own inheritance also, with that she purchased to the poor of St. Andrew's in Holborn, in respect with part of her portion, is two hundred pounds per of my long abode in Grays-Inn, thirty pounds; to annum and better, besides the wealth she hath in the poor of the abbey church parish in St. Alban's, jewels, plate, or otherwise, wherein I was never twenty pounds ; to the poor of St. Peter's there, strait-handed. All which I here set down, not betwenty pounds ; to the poor of St. Stephen's there, cause I think it too much, but because others may twenty pounds; to the poor of Redborn, twenty not think it less than it is. VOL. II.