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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
QUESTION RISING UPON GODFREY'S CASE.
of the report.
Some courts cannot imprison, fine, nor amerce, as
ecclesiastical courts holden before the ordinary, archThe words deacon, or their commissaries and such like, which
proceed according to the common or civil law.
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 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 ma
jesty's princely judgment.
The humble and direct Answer to the fourth
Question arising out of Dr. Bonham's Case. 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.
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 cases the common law shall control acts of parlia- The worde ment, and sometimes shall adjudge them to be ut- of the re. terly 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 Cessavit 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 niece 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 Cistertians 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. Annu. ity. 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 custody, 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 Religiosorum, are these : Et insuper ordinarit dominus rex et statuit, quod abbates Cistercienses & Præmonstratenses ordinum religiosorum, fc. de cetero habeant sigillum commune, et illud in custodia prioris monastcrii scy do
mus et quatuor de dignioribus et discretioribus ejus-
Which cases being cited in the argument of this
In all which I most humbly submit myself to your
majesty's princely censure and judgment.
The humble and direct Answer to the last Ques
tion arising upon Bagg's Case.
It was resolved, that to this court of the King's The words
of the report.
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,
heb el 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 majes
ty's princely judgment.
May it please your Lordship,
time, information was given to his majesty, that I have ni ning published in eleven works or books of reports,
containing above 600 cases one with another, had written many things against his majesty's prerogative.