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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, 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 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 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 ineans 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, etc. 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.
THE HUMBLE AND DIRECT ANSWER TO THE QUESTIONS
UPON D'ARCY'S CASE.
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.
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 licence to have the sole importation or merchandizing of cards, without any limitation or stint, is utterly against the law.
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 licence 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
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, not
withstanding 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 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,
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.
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.
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.
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,