Page images
PDF
EPUB

always make my particular a cypher, when there is question of your majesty's honour and service, I think myself honoured for being brought into so good company. And as, without flattery, I think your majesty the best of kings, and my noble lord of Buckingham the best of persons favoured; so I hope, without presumption, for my honest and true intentions to state and justice, and my love to my master, I am not the worst of chancellors. God ever preserve your majesty. Your Majesty's most obliged

and most obedient servant, February 10, 1619.

FR. VERULAM, Canc.

THE FOLLOWING PAPERS, CONTAINING THE LORD CHAN

CELLOR ELLESMERE'S EXCEPTIONS TO SIR EDWARD COKE's “ REPORTS,

REPORTS," AND SIR EDWARD'S ANSWERS, HAVING NEVER BEEN PRINTED, THOUGH MR.STEPHENS, WHO HAD COPIED THEM FROM THE ORIGINALS, DESIGNED TO HAVE GIVEN THEM TO THE PUBLIC, THEY ARE SUBJOINED HERE IN JUSTICE TO THE MEMORY OF

THAT GREAT LAWYER AND JUDGE; ESPECIALLY AS THE OFFENCE TAKEN AT HIS “ REPORTS" BY KING

JAMES, IS MENTIONED ABOVE IN THE LETTER OF THE LORD CHANCELLOR AND SIR FRANCIS BACON, OF OCTOBER 16, 1616, TO THAT KING.

TO THE KING'S MOST EXCELLENT MAJESTY.

IT MAY PLEASE YOUR MOST EXCELLENT MAJESTY. ACCORDING to your majesty's directions signified

unto me by Mr. Solicitor, I called the lord chief justice before me on Thursday the 17th of this instant, in the presence of Mr. Attorney and others of your learned counsel. I did let him know your majesty's acceptance of the few animadversions, which, upon review of his own labours, he had sent, though fewer than you expected, and his excuses other than you expected, as namely, in the prince's case, the want of the original in French, as though, if the original had been “ primogenitus” in Latin, then he had not in that committed any error. I told him farther, that because his books were many, and the cases therein, as he saith, 500, your majesty, out of your gracious favour, was pleased, that his memory should be refreshed; and that he should be put in mind of some passages dispersed in his books, which your majesty, being made acquainted with, doth as yet distaste, until you hear his explanation and judgment concerning the same. And that out of many some few should be selected, and that at this time he should not be pressed with more, and these few not to be the special and principal points of the cases, which were judged, but things delivered by discourse, and, as it were, by expatiation, which might have been spared and forborn, without prejudice to the judgment in the principal cases.

Of this sort Mr. Attorney and Mr. Solicitor made choice of five specially, which were read distinctly to the lord chief justice. He heard them with good attention, and took notes thereof in writing, and, lest there might be any mistaking either in the declaring thereof unto him, or in his misconceiving of the same, it was thought good to deliver unto him a true copy. Upon consideration whereof, and upon advised deliberation, he did yesterday in the afternoon return unto me, in the presence of all your learned counsel, a copy of the five points before mentioned, and his answer at large to the same, which I make bold to present herewith to your majesty, who can best discern and judge both of this little which is done, and what

may be expected of the multiplicity of other cases of the like sort, if they shall be brought to further examination. All that I have done in this hath been by your majesty's commandment and direction, in presence of all your learned counsel, and by the special assistance and advice of your attorney and solicitor.

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 not the fifth petition, “ Dimitte nobis debita nostra sicut, etc.” 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, etc.

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
and faithful subject and servant,

T. ELLESMERE, Canc. At York-house, 22 Oct. 1616.

THE HUMBLE AND DIRECT ANSWER TO THE FOURTH QUES

TION ARISING OUT OF DR. BONHAM'S CASE.

by this

In this case I am required to deliver what I mean

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 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. III. 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. III.“ 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, etc. 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

« PreviousContinue »