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I know obedience is better than sacrifice; for otherwise I would have been an humble suitor to your majesty to have been spared in all service concerning the lord chief justice. I thank God, I forget
I not the fifth petition, Dimitte nobis debita nostra sicut, &c. but withal I have learned this distinction : there is, 1. Remissio vindictæ. 2. Remissio pænæ. 3. Remissio judicii. The two first I am past, and have freely and clearly remitted. But the last, which is of judgment and discretion, I trust I may in Christianity and with good conscience retain, and not to trust too far, &c.
I must beseech your majesty's favour to excuse me for all that I have here before written, but specially for this last needless passage; wherein I fear your majesty will note me to play the divine, without learning, and out of season. So with my continual prayers to God to preserve your majesty with long, healthful, and happy life, and all earthly and heavenly felicity, I rest
Your Majesty's humble At York-house, 22 Oct. 1616. and faithful subject and servant,
T. ELLESMERE, Canc.
QUESTIONS demanded of the Chief Justice of
the King's Bench by his Majesty's command-
1. In the case of the isle of Ely, whether his lord- Lib. 10. ship 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 Lib. 11.
be as he reporteth it to be resolved; that the dispenzsation or licence 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, &c. 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 controul 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 controul 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 extrajudicial, 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, 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 fol.
The humble and direct Answer to the Questions
upon the Case of the Isle of Ely. The words The statute of the 23 H. VIII. cap. 5, prescribeth lute" 23 h. the commission of sewers to be according to the man. 8, the com- ner, form, tenure, and effect hereafter ensuing, namely,
to inquire by the oath of men, &c. who hath any lands or tenements, or common of pasture, or hath, or may have, any loss, &c. and all these persons to tax, distrain, and punish, &c. after the quantity of lands, tenements, and rents, by the number of acres and
mission of sewers.
tion of the
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 The taxaEly did tax Fendrayton, Samsey, and other towns ge- commisnerally, namely, one intire sum upon the town of sioners. Fendrayton, another upon Samsey, &c. 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, That the taxation ought to have these qualities, 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 intire sum in gross upon a town is not warranted by their commission, &c. 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 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 ano
ther, the general taxation of a town cannot, as I take it, be just, unless the particular lands, &c. 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 intire 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, &c. 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 sub
mit myself herein to your majesty's princely censure and judgment.
TIE HUMBLE AND DIRECT ANSWER TO THE
QUESTIONS UPON D'ARCY'S CASE.
The statute of 3 of E. 4. cap. 4. at the humble petition of the card-makers, &c. 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
clause of the sole im
the sole importation of foreign playing cards; and that
The point concerning the sole making of cards
It was resolved, that the dispensation or licence to the words have the sole importation or merchandizing of cards, port, conwithout
any limitation or stint, is utterly against the cerning the law. . And your majesty's commandment having been portation. 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 licence to any man to import any quantity of the said inanufacture 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. 7. fol. 6. by the which it appeareth, that if a penal statute should add a elause, That the king should not 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 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