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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.
THE HUMBLE AND DIRECT ANSWER TO THE
The words 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.
of the report.
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
All which I most humbly submit to your ma-
The humble and direct Answer to the fourth
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.
of the re
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 The words 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. II. cap. 21, gives a writ of Cessuvit hæredi petenti super hæredem tenent et super eos, quibus alienatum fuerit hujusmodi tenementum. And yet it is adjudged in 33 E. 3, tit. cessavit 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 neice 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 Carlisle, made anno 35 E. I. enacteth, That the order of the Cestertians and augustins have a convent and 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 custódy, the abbot cannot seal any thing with it; and when it is in the hands of the abbot, it is out of their custody 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 Religio sorum, are these: Et insuper ordinavit dominus rex et statuit, quod abbates Cistercienses and Præmonstratenses ordinum religiosorum, &c. de cetero habeant sigillum commune, et illud in custodia prioris monasterii seu do
mus 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 case, and I finding them truly vouched, I reported them in this case, as my part was, and had no other meaning than so far as those particular cases there cited do extend unto. And therefore the beginning is, It appeareth in our books, &c. And so it may be explained, as it was truly intended.
In all which I most humbly submit myself to your
The humble and direct Answer to the last Question arising upon BAGG's Case.
of the re
It was resolved, that to this court of the King's The words Bench belongeth authority not only to correct errors in judicial proceedings, but other errors and misde
meanors 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.
May it please your Lordship,
ABOVE a year past, in my late lord chancellor's time, information was given to his majesty, that I having published in eleven works or books of reports, containing above 600 cases one with another, had written many things against his majesty's prerogative.