Page images

more of the greatness of his place than of the | tained but to play the fool. God ever prosper duty of his place, will soon commit misprisions. you.


Star Chamber, October 24, 1620. Notes upon Mr.
Attorney's cause.

Your lordship's most obliged friend,
and faithful servant,

[blocks in formation]


It may be, your lordship will expect to hear from me what passed yesterday in the Star Chamber, touching Yelverton's cause, though we desired Secretary Calvert to acquaint his majesty


To make short, at the motion of the attorney, in person at the bar, and at the motion of my lord steward* in court, the day of proceeding is deferred till the king's pleasure is known. This was against my opinion then declared plain enough; but put to votes, and ruled by the major part, though some

concurred with me.

I do not like of this course, in respect that it puts the king in a strait; for either the note of severity must rest upon his majesty, if he go on; or the thanks of clemency is in some part taken away, if his majesty go not on.

I have "cor unum et via una ;" and therefore did my part as a judge and the king's chancellor. What is farther to be done, I will advise the king faithfully, when I see his majesty and your lordship. But before I give advice, I must ask a question first.

God ever preserve and prosper you.
Your lordship's most obliged friend
and faithful servant,

October 28, 1620.



In performance of your royal pleasure, signified by Sir John Suckling, we have at several times considered of the petition of Mr. Christopher Villiers,† and have heard, as well the registers and ministers of the Prerogative Court of Canterbury, and their council, as also the council of the Lord Archbishop of Canterbury. And setting aside such other points, as are desired by the petition, we do think, that your majesty may by law, and without inconvenience, appoint an officer, that shall have the engrossing of the transcripts of all wills to be sealed with the seal of either of the prerogative courts, which shall be proved "in communi forma ;" and likewise of all inventories, to be exhibited in the same courts.

We see it necessary, that all wills, which are not judicially controverted, be engrossed before the probate. Yet, as the law now stands, no officer of those courts can lawfully take any fee or reward for engrossing the said wills and inventories, the statute of the 21st of King Henry the VIIIth restraining them. Wherefore we hold it much more convenient, that it should be done by a lawful officer, to be appointed by your majesty, than in a cause not warrantable by law. Yet, our humble opinion and advice is, that good consideration be had in passing this book, as well touching a moderate proportion of fees to be allowed for the pains and travel of the officer, as for the expedition of the suitor, in such sort, that the subject may find himself in better case than

LORD CHANCELLOR BACON TO THE MARQUIS he is now, and not in worse.


Yesternight we made an end of Sir Henry
Yelverton's cause. I have almost killed myself
with sitting almost eight hours.
But I was
resolved to sit it through. He is sentenced to
imprisonment in the Tower during the king's
pleasure. The fine of 40007. and discharge of his
place, by way of opinion of the court, referring it
to the king's pleasure. How I stirred the court,
I leave it to others to speak; but things passed
to his majesty's great honour. I would not for
any thing but he had made his defence; for many
chief points of the charge were deeper printed by
the defence. But yet I like it not in him; the
less because he retained Holt, who is ever re-

The Duke of Lenox.

But, however, we conceive this may be convenient in the two courts of prerogative, where there is much business: yet, in the ordinary course of the bishops' diocesans, we hold the same will be inconvenient, in regard of the small employ

[blocks in formation]


IT MAY PLEASE YOUR MOST EXCELLENT MAJESTY' According to your commandment, we have heard once more the proctors of the Prerogative Court, what they could say; and find no reason to alter, in any part, our former certificate. Thus much withal we think fit to note to your majesty, that our former certificate, which we now ratify, is principally grounded upon a point in law, upon the statute of 21 Henry VIII., wherein we, the chancellor and treasurer, for our own opinions, do conceive the law is clear; and your solicitor-ge

neral concurs.

Now, whether your majesty will be pleased to rest in our opinions, and so to pass the patents; or give us leave to assist ourselves with the opinion of some principal judges now in town, whereby the law may be the better resolved, to avoid farther question hereafter; we leave it to your majesty's royal pleasure. This we represent the rather, because we discern such a confidence in the proctors, and those upon whom they depend, as, it is not unlike, they will bring it to a legal question.

And so we humbly kiss your majesty's hands, praying for your preservation.

Your majesty's most humble

and obedient servants,


York House, December 12, 1620.


10 Rich 2. The offences were of three natures: 1. Deceits to the king.

2. Misgovernance in point of estate, whereby the ordinances made by ten commissioners for reformation of the state were frustrated, and the city of Ghent, in foreign parts, lost.

3. And his setting the seal to pardons for murders, and other enormous crimes.

The judgment was imprisonment, fine, and ransom, and restitution to the king, but no disablement, nor making him uncapable, no degrading in honour, mentioned in the judgment: but, contrariwise, in the clause, that restitution should be made and levied out of his lands and goods, it is expressly said, that because his honour of earl was not taken from him, therefore his 201. per annum creation money,should not be meddled with.

* Sir Thomas Coventry, who was made attorney-general, January 14, 1620-1.

+ This paper was probably drawn up on occasion of the proceedings and judgment passed upon the Lord Viscount St. Alban by the House of Lords, May 3, 1621.


24 Edw. 3. His offence was taking of money from five several persons, that were felons, for staying their process of exigent; for that it made him a kind of accessary of felony, and touched upon matter capital.

The judgment was the judgment of felony: but the proceeding had many things strong and new; first, the proceeding was by commission of oyer and terminer, and by jury; and not by parliament.

The judgment is recited to be given in the king's high and sovereign power.

It is recited likewise, that the king, when he made him chief justice, and increased his wages, did "ore tenus" say to him, in the presence of his council, that now if he bribed he would hang him unto which penance, for so the record called it, he submitted himself. So it was a judgment by a contract.

His oath likewise, which was devised some few years before, which is very strict in words, that he shall take no reward, neither before nor after, is chiefly insisted upon. And that, which is more to be observed, there is a precise proviso, that the judgment and proceeding shall not be drawn into example against any, and specially not against any who have not taken the like oath: which the lord chancellor, lord treasurer, master of the wards, etc., take not, but only the judges of both benches, and baron of the exchequer.

The king pardoned him presently after, doubting, as it seems, that the judgment was erroneous, both in matter and form of proceeding; brought it before the lords of parliament, who affirmed the judgment, and gave authority to the king in the like cases, for the time to come, to call to him what lords it pleased him, and to adjudge them.


44 Edw. 3. His offences were, great oppressions in usurpation of authority, in attacking and imprisoning in the Tower, and other prisons, numbers of the king's subjects, for causes no ways appertaining to his jurisdiction; and for discharging an appellant of felony without warrant, and for deceit of the king, and ex


His judgment was only imprisonment in the Tower, until he had made a fine and ransom at the king's will; and no more.


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 83,000%. 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 he was presently bailed by some of the lords, and suffered to go at large.


50 Edw. 3. His offences were, the not supplying 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.

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 clause of being punished according to his demerits.


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.

"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."


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 particular 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.

2. In Darcy's case, whether his lordship's judgment be as he reporteth it to be resolved; 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 passage, Some courts cannot imprison, fine, or amerce, as ecclesiastical courts before the ordinary archdeacon, etc., 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 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 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

[blocks in formation]


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.

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.




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 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 proclama



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.

mation 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

« PreviousContinue »