"Mr. Northey for the plaintiff. .

The king

can not control an act of parliament that disables a

man .

"Glanville, serjeant [for defendant]. .

There

"is a great distinction between the laws of property and "those of government

The opinion of the court is as follows: "The Lord Chief "Justice took time to consider of it, and spake with the "other judges, and three or four days after, declared that "he and all the judges (except Street and Powell who

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doubted) were of opinion, that the kings of England "were absolute sovereigns; that the laws were the king's "laws; that the king had a power to dispense with any of "the laws of government as he saw necessity for it; that "he was the sole judge of that necessity; that no act of "parliament could take away that power; that this was "such a law; that the case of Sheriffs in the second year "of Henry the Seventh, was law, and always taken as law; "and that it was a much stronger case than this. "therefore gave judgment for the defendant.”

And

Thus the court held the statute invalid because it was judicially ascertained to deprive the king of a part of his rightful prerogative.

No. 3.

Of the Sheriff's case in the Year Book of 2 Henry VII., P. C.

The Sheriff's case alluded to by Lord Chief Justice Herbert was that of the shrievalty of Northumberland in the Year Book of 2 Henry VII. (p. 6 and Index under Roy). An interpretation of the report of this case, different from that given in the opinion of the court in Godden v. Hales, is to be found in the argument of Northey for the defendant. Northey's argument is reported at much greater length in 8 Bacon's Abridgment, 70–79 (ed. Bouvier) than in Shower, Comberbach or the State Trials. Northey disputed the authority of the Sheriff's case for any thing. Macaulay re

gards Northey's argument in Godden v. Hales as insincere. This imputation, if true, does not however necessarily affect the correctness of his view of the Sheriff's case.

Lord Bacon's understanding of the report of the case is found in his Maxims Reg. 19, p. 38 of the Law Tracts, 2d. Edition. It accords with the subsequent opinion in Godden v. Hales, and is as follows:

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"So if there be a statute made that no sheriff shall con"tinue in his office above a year, and if any patent be made "to the contrary, it shall be void; and if there be any "clausula de non-obstante contained in such patent to dis"pense with this present act, that such clause also shall be void; yet nevertheless a patent of the sheriff's office made "by the king for term of life, with a non-obstante will be good "in law contrary to such statute, which pretendeth to ex"clude non-obstante's; and the reason is, because it is an "inseparable prerogative of the crown to dispense with po"litic statutes, and of that kind; and then the derogatory "clause hurteth not." The marginal note quotes for this the case in the Year Book of 2 Henry VII., p. 6.

Lord Bacon thus was of opinion that a statute taking away the king's prerogative power of dispensing with laws in certain cases was not binding upon the judges, and regarded the case in 2 Henry VII. as judicial authority for that proposition.

The following account of the Sheriff's case is in part translated and in part abridged from the report in the Year Book of 2 Henry VII., p. 6:

"In the Exchequer Chamber before all the justices, it was "shown for the king, how King Edward IV., by his letters "patent had ordained that the Earl of N. be sheriff of the "same county, and had granted the office of the aforesaid "county to the said Earl for the term of his life, with all "the other offices appurtenant thereto, rendering therefor "to the king at his exchequer annually one hundred "pounds, without any account, or without rendering any "other thing therefor, etc. Now whether the patent was "good; and also how the patent should be understood. "And as to the first point the justices held the patent good;

"for it is such a thing as can well be granted for term of life, or for inheritance, since divers counties have sheriffs "by inheritance, and such begin by grant of the king. "Then was shown a resumption, and then a proviso for H. "Earl of N. was shown, so that the patent remains in its "force.

"Radcliff showed the statutes of 28 Edward III. c. 7. "and 42 Edward III. c. 5.,* whereby there should be no "sheriff for more than a year, etc.; and showed how there "was a non-obstante. And this non-obstante the king "always had upon his prerogative as well concerning the "value and contents of lands, other things granted by the "king, abandoned ships, and charters of murders, and sev"eral other cases in which there are statutes providing that "patents which do those things should be void. Neverthe"less the patents of the king are good with a non-obstante, "but without a non-obstante the patents are void because "of the statutes. So here the patent is with a non-obstante. "Wherefore, etc. But as to the second point several of the "justices held," etc.

The second point was as to how the patent should be construed. It was discussed at considerably greater length than the first point. The report ends with the following words, the precise meaning of which is important:

"But because this was the first time, the justices and ser"jeants and attorney of the king agreed that they should "study well as to the matter, and they should be heard, "and what they had said was for nothing, for they wished "to be at their liberty to say what they wished and to think "for nothing what they had now said."

If this language is to be applied to the whole report, then Northey's assertion that the case was no authority for anything, is strongly supported by it. If, however, it applies only to the discussion of the second point, the authority of the decision on the first point can not be attacked except on the general ground of error. That part of the report, which is concerned with the first point, has in itself no

*C. statute 1 of 14 Edward III. cap. 7; Statutes of the Realm, I. 283.

obscurity. It purports to give the common opinion of all the king's judges assembled in the Exchequer Chamber. That opinion was to the effect that royal letters patent doing certain things were prohibited and made void by statute, but that the king had the prerogative of derogating to such statute by a nonobstante clause in such letters patent, which then were good.

CHAPTER XVI.

Of the doctrine concerning void statutes from which Blackstone dissents in his tenth rule of interpretation.

No. 1. Of Blackstone's tenth rule for construing statutes.

No. 2. Of Coke's doctrine upon the invalidity of statutes in certain cases.

No. 3. Of the case of the Mayor and Commonally of London v. Wood.

No. 4. Of Bonham's case and Coke's opinion therein. No. 5. Of Tregor's case.

No. 6. Of the case in Fitzherbert's Abridgment, Cessavit, 42.

No. 7. Of two cases temp. Elizabeth relating to the statute of 1 Edward VI. Cap. 14.

No. 8. Of Coke on iniquum est aliquem suae rei esse judicem.

No. 9. Coke's view of the seals case in Fitzherbert's Abridgment, Annuity 41, or Rous v. an Abbot.

No. 10. Of the effect of Coke's view of the seals case in English and American legal history.

This chapter will be devoted to the consideration of the doctrine concerning the invalidity of acts of parliament in certain cases, from which Blackstone dissents in his tenth rule for the construing of statutes.

No. 1.

Of Blackstone's tenth rule for construing statutes.

Blackstone's tenth rule for construing statutes must be repeated:

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Lastly, acts of parliament that are impossible to be per"formed are of no validity; and if there arise out of them "collaterally any absurd consequences, manifestly contra"dictory to common reason, they are, with regard to those "collateral consequences, void*." He immediately adds that he lays down this rule with these restrictions, although he knows that it is generally laid down more largely, to the import that "acts of parliament contrary to reason are void."

No. 2.

Of Coke's doctrine upon the invalidity of statutes in certain cases.

The larger laying down of the rule, thus referred to by Blackstone, requires examination. It is a matter upon which he thought one way, and Coke another.

The following observation of Bowyer's may here conveniently be quoted: †

"We must receive with considerable qualifications what "Lord Coke said, in Doctor Bonham's case (8 Rep. 118), "in which he declared that the Common Law doth control "Acts of Parliament, and adjudges them void when against "common right and reason. And Lord Chief Justice Holt, "in The City of London v. Wood (12 Mod. 687), adopted "this dictum of Lord Coke, which is supported by Lord

* Commentaries, I. 91.

Readings in the Middle Temple in 1850, pages 84, 85.