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England and Wales High Court (King's Bench Division) Decisions
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Cite as: 124 ER 1098, (1673) Vaugh 330,  EWHC KB J85
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(1673) Vaugh 330; 124 ER 1098-1113
The plaintiff by information in the Kings Bench, tam pro dominio Rege quam pro seipso, demands of the defendant four hundred and fifty pounds for selling wine in the parish of Stepney, in the county of Middlesex, by retail, ninety several times, between the tenth day of June, the seventeenth of the King, and the two and twentieth day of May, the eighteenth of the King, to several persons, without licence, contrary to the Statute of 12 Car. 2, whereby he forfeited five pounds for every several offence, which amounts to four hundred and fifty pounds.
The defendant pleads, nil debet, and therefore puts himself upon the country. The jury find,
That as to all the debt, except fifty pounds, the defendant owes nothing. And as to the fifty pounds, they find the statute of 7 E. 6, c. 5, concerning retailing of wines, prout in the statute.
They find letters patents under the Great Seal, dated 2 Febr. 9 Jac. prout in the letters patents, whereby Kings James incorporated the Company of Vintners in the City of London, by the name of Master, Warden, Freemen, and Commonalty of the Mystery of Vintners in the said city, and thereby among other things granted, for him, his heirs and successors, to the said master, warden, and freemen of the said company, and their successors, that they might always after, within the said city and suburbs of the same, and within three miles from the walls or gates thereof, and in all and every other city and sea-ports, called port-towns, within the kingdom of England, and in all other cities and towns, known by the name of thorough-fare-towns, where posts were set and laid between Dover and London, and between London and Barwick, where any of the freemen of the said mystery did, or should happen to dwell and keep a wine tavern, and by themselves or servants, sell wine by retail or in gross to their best advantage, in their houses, or elsewhere, non obstante the Statute of 7 E. 6.
They find the Act of 12 Car. 2, c. 25, and the confirmation of it concerning the giving licences to retail wine, and the proviso therein prout.
Provided also, that this Act, or any thing therein contained, shall not extend, or be prejudicial to the Master, Wardens, Freemen, and Commonalty of the Mystery of Vintners of the City of London, or to any other city or town corporate, but that they may use and enjoy such liberties and priviledges, as heretofore they have lawfully used and enjoyed.
They find, that the Master, Wardens, Freemen, and Commonalty of the Mystery of Vintners in the City of London, was an ancient corporation of the said City of London, at the time of the Act of 12 Car. 2, and incorporated by the name of Master, Wardens, Freemen, and Commonalty of the Mystery of Vintners of the City of London.
They find, that the defendant, three years before, and during all the time in the information, used the trade of retailing of wine, and kept a tavern in the parish of Stepney in the county of Middlesex, was an inhabitant there, and that the defendants house, in which the said wine was sold, is within two miles of the City of London.
They find, that the defendant, within the time in the information mentioned, did sell ten pints of sack, as in the information mentioned, to be drunk and spent in his said dwelling house, being a tavern, in the said parish of Stepney.
They find, that at the time of the sale of the said wine, and three years before, the defendant was a natural born subject of the King, and a freeman of the City of London of the said Company of Vintners.
Si pro quer. quoad 50l. pro quer.
Si pro def. pro def. 1s.
Upon this special verdict three questions have been raised.
1. Whether the patent of 9 Jac. was not void in its creation?
2. Admitting it was not void in its creation, whether it became void by the death of King James.
3. If it were a good patent in the creation, nor was void by the death of King James, whether the proviso in the Act of 12 Car. 2, saving all the right of the Master, Wardens, Freemen and Commonalty of Vintners in the City of London, hath preserved all that right which they had by the patent of 9 Jac. against the Act of 12 Car. 2?
1. I conceive, that if the patent, 9 Jac. were not void in the creation, it remained good after the death of King James.
2. If it were not void in the creation, not by the death of King James, all right that the Master, Wardens, Freemen and Commonalty of Vintners had by it, is still preserved by the proviso in the Act of 12 Car. 2, but if the patent of 9 Jac. was void in its creation, or by the death of King James, then the proviso in the Act of 12 Car. 2 aids them not at all.
So as now it is only insisted on, that the patent of 9 Jac. was void in its creation, for two reasons.
1. For that the law of 7 E. 6 was such a law, pro bono publico, as the King could not dispence against it, more than with some other penal laws, pro bono publico.
2. If he could to particular persons, he could not to the Corporation of Vintners, and their successors, whose number or persons the King could never know; and that it stood not with the trust reposed in him by the law, to dispense so generally without any prospect of number or persons.
The books have been plentifully urg'd at the Barr, and by my brothers, who argued before me, therefore I shall not actum agere to repeat them.
But I observed not that any steddy rule hath been drawn from the cases cited to guid a mans judgment, where the King may, or may not dispence in penal laws, excepting that old rule taken from the case of 11 H. 7.
That with malum prohibitum by stat. the King may dispence, but not with malum per se.
But I think that rule hath more confounded mens judgments on that subject, than rectified them.
Yet I conceive that case, and the instances given in it, rightly understood, to be the best key afforded by our books, to open this dark learning (as it seems to me) of dispensations, to which therefore I shall only or principally apply myself.
Before I enter upon it, I must previously assent, that every act a man is naturally enabled to do, is in it self equally good, as any other act he is so enabled to do. And so all the schoolmen agree, that actus qua actus non est malus. And that mens acts are good or bad only as they are precepted or prohibited by a law, according to that truth, where there is no law there is no transgression. Whence it follows, that every malum is in truth a malum prohibitum by some law.
In the next place, I mean by the word (dispensation) when I use it, another thing than some of my brothers defined it to be, namely, that it was liberatio a poena; or as others, that it is provida relaxatio juris, which is defining an ignotum per ignotius, but liberare a poena, is the proper effect of a pardon, not of a dispensation; for a dispensation obtained doth jus dare, and makes the thing prohibited lawful to be done by him who hath it, upon which depends the true reason of many cases which admit not of dispensation; but a pardon frees from the punishment due for a thing unlawfully done. Yet freedom from punishment is a consequent of a dispensation, though not its effect. But so it is also a consequent of repealing the law, and a consequent of an exception at the making of the law of some particular person or persons from being bound by the law.
I come now to the case it self of 11 H. 7, wherein I agree, that with malum prohibitum by stat. indefinitely understood the King may dispense.
But I deny that the King can dispense with every malum prohibitum by statute, though prohibited by statute only.
1. The King may pardon nusances that are transient, and not continuing, as a nusance in the high-way, which still continues, and is not ended, until removed; cannot be pardon'd: so of a water-course diverted, or a bridge broken down, they cannot be pardon'd so as to acquit the nusance-maker for committing them; but the fine or punishment impos'd for the doing may be pardon'd.
But breaking the assise of bread and ale, forestalling the markets, ingrossing, regrating, or the like, which continue not, but which are over as soon as done, until done de novo again, may be pardon'd, like other offences: so as the offender shall not be impleaded for them, otherwise than by persons who have receiv'd particular damage, which the King cannot remit; this difference holds in offences by penal laws.
So a mayor or bayliff of a town, or other toll-taker, who is penally bound to provide true market measures, and doth not, cannot be pardon'd by the King because the fault still continues; but the punishment inflicted the King may pardon. But by a law all these offences may be pardon'd.
So it is generally true, that malum per se cannot be dispensed with; but thence to inferr (as many do) that every malum which the King cannot dispense with is malum per se, is not true.
Nor is there in that case any sufficient resignation of what is malum per se, and why to prevent error in disquisition concerning it, though some instances thereof, mala per se, be very right.
I shall therefore endeavour to in stance in several kinds of mala per se, which cannot be dispens'd with, and in some mala prohibita by Acts of Parliament, and otherwise, which the King also cannot dispense with; and to give the reason why he cannot in both, thereby to make the conclusion I drive at less confused, which is to differ penal laws dispensable from those which are not.
Murther, adultery, stealing, incest, sacriledge, extortion, perjury, trespass, and many other of the like kind, all men will agree to be mala per se, and indispensable: all which are prohibited, and by statutes. Nor is it much to say, those are also prohibited by the common law, and therefore cannot be dispens'd with, if that were the reason, nothing prohibited at the common law could be dispens'd with, which is not so.
2. Where the suit is only the Kings for breach of a law, which is not to the particular damage of any third person, the King may dispense; but where the suit is only the Kings, but for the benefit and safety of a third person, and the King is intitled to the suit by the prosecution and complaint of such third person, the King cannot release, discharge, or dispense with the suit, but by consent and agreement of the party concern'd. As where, upon complaint of any person, a man hath entred into recognizance to keep the peace against such person, the King cannot discharge such recognizance before it be forfeited; but the party whose safety is concerned may, though the King only can sue the recognizance. Some more such cases may be.
As the laws of nusances are pro bono publico, so are all general penal laws; and if a nusance cannot be dispens'd with for that reason, it follows, no penal law, for the same reason, can be dispens'd with.
Therefore the reason is, because the parties particularly damaged by a nusance, have their actions on the case for their damage, whereof the King cannot deprive them by his dispensation: and by the same reason, other penal laws, the breach of which are to mens particular damage, cannot be dispens'd with.
3. Nusances and ills prohibited by penal Acts of Parliament, are of the same nature as to the publique, although (as the law is now received) the mala or nocumenta prohibited by Acts of Parliament, are not presentable in leets, or the sheriffs torn, as nusances at common law are, of which some questionless cannot be dispens'd with; as obstructing the high-way, diverting a water-course, breaking down a bridge, breaking the assise of bread and ale: for as to these, the parties particularly damaged by them have their actions, which the King cannot discharge.
4. Other ancient nusances are by which no man hath a particular damage or action for it, as if a man buy provision coming to market by the way (which is a nusance by forestalling the market) and sells it not in the market forestall'd, no action lies for a particular damage to any man, more than to every man; but the King may punish it.
So if a man buy corn growing in the field, contrary to the statute of 5 E. 6, c. 14, he is an ingrosser: so selling corn in the sheaf is against the common law by Robert Hadham's case, cited in Coke's Pleas of the Crown, and punishable by the King, but no particular person can have an action for such ingrossing more than every man; yet these are nusances by the common law, but so made by prohibiting laws beyond memory: as by a law of King Athelstans, ne quis extra oppidum quid emat, forestalling was prohibited. And by several laws of William the First, ne venditio & emptio fiat nisi coram testibus & in civitatibus. Item nullum mercatum vel forum sit, nee fieri permittatur, nisi in civitatibus regni nostri. And no way differ from publique evils now prohibited by Parliament, and may, by it, be permitted, for the statute of 15 Car. 2, c. 5, gives leave to ingross without forestalling, when corn exceeds not certain rates. Nor see I any reason why the King may not dispense with those nusances by which no man hath right to a particular action, as well as he may with any other offence against a penal law, by which no third person hath cause of action.
Whence it follows, that if an Act of Parliament call an offence a nusance, from which no particular damage can arise to a particular person, to have his action, the King may dispense with such a nominal nusance as with an offence against a penal law, for which a man can have no action for his particular damage.
5. The Register hath no writ of ad quod damnum, upon any licence to be granted, but for alienation of capite land, or in mortmain, or for diverting or obstructing a water-course, or high-way, in which cases the writ is directed to the certain sheriff or escheator of the county, where the land-way or water-course lye; but for licences for other things, as exportation or importation of prohibited commodities, a writ of ad quod damnum, cannot be directed to any certain sheriff, or other officer, to enquire.
Nor is it enough to make a thing malum per se, because prohibited at common law: but the reason is,
The word murther (ex vi termini, in the language it is us'd in) signifies unlawful killing a man. The word adultery, unlawful copulation; stealing, unlawful taking from another; perjury, unlawful swearing; and trespass, ex vi termini, an unlawful imprisonment, or unlawful entry, or the like, upon anothers house or lands, and so do the other mala instanced.
If these mala might be dispens'd with, in regard a dispensation, as I said, makes the thing to be done lawful to him who is dispens'd with, it follows, that the dispensation would make unlawful killing, which the word murther imports, vi termini, to be lawful; unlawful taking from another, which the word stealing imports, to be lawful; unlawful swearing, which perjury imports, to be lawful; an unlawful entry upon a mans house or land, which the word trespass imports, to be lawful, and so of the rest.
So the same thing, at the same time, would be both lawful and unlawful, which is impossible.
For the same reason, a law making murther, stealing, perjury, trespass, or any the rest of the mala instanc'd in lawful, would be a void law in it self.
For a law which a man cannot obey, nor act according to it, is void, and no law: and it is impossible to obey contradictions, or act according to them.
Therefore I may conclude those things to be mala in se, which can never be made unlawful.
The instances in that book of 11 H. 7 are none of these, but near them: the words are, but malum in se, the King, nor any other can dispense. And instanceth,
Si come, si le Roy, voyloit pardon de occider un homme ou de faire nusance in le haut chemin, ceo est void.
Where by the way, pardon is mis-printed for pocar done, for the King may pardon killing a man; but if the King will give power to kill a man, or to make a nusance in the high-way, it is void.
And upon the same reason, a licence to imprison a man, to take his land, his horse, or any thing that is his from him, is void.
For in life, liberty, and estate, every man who hath not forfeited them, hath a property and right which the law allows him to defend; and if it be violated, it gives an action to redress the wrong, and to punish the wrong-doer.
Therefore a dispensation, that is, to make lawful the taking from a man any thing which he may lawfully defend from being taken, or lawfully punish if it be, must be void.
For it is a contradiction to make it lawful, to take what may be lawfully hindred from being taken, or lawfully punished, if it be.
And that were to make two men have several plenary rights in the same thing at the same time, which no law can effect: therefore to do a thing which no law can make lawful, must be malum in se.
But these instances differ from the former; for killing a man, or taking from him his lands or goods, do not import, ex vi termini, that which is unlawful, as murther and stealing do; for in many cases killing a man, or taking his liberty or goods from him, is lawful, and where it is not, may by a law be made so, which the other can never be.
As every new capital punishment ordained by law, makes killing a man lawful where it was not before; every new aid granted out of mens estate, makes a taking from men lawful that was not before.
But this is because a law can alter, change, or transferr a mans property in life, liberty, estate, or any interest, as it will, which cannot be done without a law, and thereby nothing unlawful is made lawful: but the property which a man had, and was the subject matter of the unlawful doing or taking before, is alter'd or transferred to another, either in toto or in tanto.
So as to violate mens properties is never lawful, but a malum per se, as that book is of 11 H. 7, and according to that of Bracton;
Rex non poterit gratiam facere cum injuria & damno aliorum quod autem alienum est dare non potest per suam gratiam.
But to alter or transferr mens properties to others, is no malum per se, it is daily done by the owners express consent, and by a law without their express consent.
And as the law is, the lord of a villain may transferr his villains property, in lands or goods, to himself, by entry or seisure: and it is the signal difference between a freeman and villain, that it cannot be done to a freeman, nor yet to a villain to the use of any but his lord.
The learned and judicious Grotius, in his excellent work de jure belli ac pacis, is most apposit upon this subject:
Sicut ergo ut bis duo non sint quatuor, ne a Deo quidem, potest effici, ita ne hoc quidem, ut quod intrinseca ratione malum est malum non sit. And then follows, after some further explanation of his notion, Ita, si quem Deus occidi praecipiat, aut res alicujus auferri; non licitum fiet Homicidium aut furtum (quae voces vitium involvunt) sed non erit Homicidium aut furtum; quod vitae & rerum supremo domino auctore fit. And it is the same to say,
Si quem Lex occidi praecipiat aut res alicujus auferri, non licitum fiet homicidium aut furtum (quae voces vitium involvunt) sed non erit homicidium aut furtum quod a lege vitae & rerum potestatem habente, auctore fit.
If any need further satisfaction concerning what hath been said on this occasion, he may resort with success to the place quoted of that great lawyer.
But it is to be observed, that altering or changing property is no subject matter for a dispensation. A man is not dispens'd with to do an act which he cannot do, but to do an act which simply he can do, but the law prohibits his doing it, penally.
But altering or changing property is an act simply out of his power to do, which should be dispens'd with in that behalf.
And thus we see violation of property is a malum per se by that book of 11 H. 7, and the reason why it is so, and cannot be dispens'd with.
A third kind of malum per se by that case of 11 H. 7, is that which the law of the land admits to be specially prohibited, Jure Divino, Et isint le Roy, ne nul Evesque ou Praesbiter poit doner licence a un de faire Lechery, Quia est malum in se, saith the book, that is coition without wedlock, which offence, when by mutual consent, injures no property, having two husbands or two wives at the same time; but that is also against the property of the first husband or wife, marriage within the Levitical degrees. All which are admitted by the law of the land to be prohibited, Jure Divino, and cannot be dispenc'd with; for no human authority can make lawful what divine authority hath made unlawful, without Gods leave, and then it is by his authority.
Many more particulars fall under this head, which I shall not now mention. Hence I infer mala in se to be only such as imply a contradiction to be made lawful, and consequently what may be made lawful by human law to be no malum in se, as not differing from other things which may be permitted or prohibited occasionally, at the pleasure of the law-maker.
The King cannot dispense with a nusance to the high-ways by 11 H. 7, and consequently, as some think, with no other publique nusance, by Sir Edward Coke. For all common nusances, as not repairing bridges, high-ways, etc the suit is the Kings, but he cannot pardon or discharge the nusance or the suit for the same, the high-ways being necessary to support such of his subjects as are occasioned to travel them: of this more hereafter.
The specifical offences, which are publique nusances, I do not reckon to be mala in se, as some do, because though it be admitted none of them can be dispens'd with, yet a law may make them lawful; and if so, they are not mala in se, as before. But either a dispensation, or a law to commit nusances (in those terms) I conceive to be void, because the word nusance imports a thing, vi termini, that is unlawful as trespass doth; and therefore it is a contradiction to make it lawful by a dispensation or law.
But by a law, a baker or victualler may sell bread or ale of such weight or measure as he pleaseth, and as they did before the assiae was made. By a law a water-course may be diverted; corn growing in the field, or provision going to a market may be bought up by the way, which are nusances in specie, so of the rest; and therefore not mala in se, as some have thought, but mala politica, as they are prohibited.
But obstructing a high-way, diverting a water-course, breaking down a bridge, breaking the assise of bread and ale, cannot be dispens'd with, though they are only punishable by the King, because such a dispensation would take away the action of those who had particular damage by the offence done.
But a dispensation to buy the standing corn of such a particular man, or field, or a certain provision going to such a market, such a market-day, may be good, for no man can declare upon a particular damage to himself thereby, for if any man could, every man could; but a general dispensation in either kind, were an abrogation of the laws which prohibit them, which cannot be.
Next, some nusances are permanent, and continue still, until removed, as ditches, hedges, or other obstructions to the high-ways, diverting water-courses, decay of bridges; these cannot be pardon'd, nor the suit for them, until removed; but breaking the assise of bread and ale, buying provision in the way to market, ingrossing a certain quantity of corn, these are transient nusances, as I conceive, which continue not, but cease, until done de novo, and such may be pardon'd, and the suit for them (as I conceive).
And note, if a man have particular damage by a foundrous way, he is generally without remedy, though the nusance is to be punisht by the King. The reason is,
Because a foundrous way, a decay'd bridge, or the like, are commonly to be repaired by some township, vill, hamlet, or a county who are not corporate, and therefore no action lyes against them for a particular damage, but their neglects are to be presented, and they punish'd by fine to the King.
But if a particular person, or body corporate, be to repair a certain high-way, or portion of it, or a bridge, and a man is endamaged particularly by the foundrousness of the way, or decay of the bridge, he may have his action against the person or body corporate, who ought to repair for his damage, because he can bring his action against them; but where there is no person against whom to bring his action, it is as if a man be damaged by one that cannot be known.
Though no person, natural or corporate, can have an action for a publick nusance, or punish it, but the King, upon presentment or indictment, as appears 3 E. 2, where the Mayor and Commonalty of London brought an action upon the statute for forestalling the markets and after selling at double the rate, because no particular damage was alledg'd, without which the suit was only the Kings, the plaintiffs had nothing by their action.
For if by any publique nusance a man have a particular damage, he may have his action on the case against the nusance-maker.
And the reason why the King cannot dispense in such cases, is, not only as nusances are contra bonum publicum, but because if a dispensation might make it lawful to do a nusance, which differs from a licence, to continue a nusance in the reason of it, the person damaged by it would be deprived of his action, for an action cannot lye for doing that which was lawfully done; and it is the same to alter or change property, by making what is mine to be lawfully another mans, as to licence another to damage me, and I shall have no action or remedy for it: and no offence against a penal law could be dispenc'd with, if the reason of not dispensing were because the offence is contra bonum publicum, for all offences by penal laws are such.
And it is observable, that if upon the retorn of an ad quod dampnum it appear to be ad dampnum vel prejudicium of no man, the King may then licence the stopping up of an ancient high-way, or diverting a water-course, or part of it, for the concern is then wholly his own, but without his licence it can never be done, though a better way be set out, and so retorn'd upon an ad quod damnum.
Offences against Penal Laws to be Dispens'd with.
1. There are many penal laws, by transgressing which the subject can have no particular damage, and therefore no particular action; for the law gives not particular actions regularly but for particular damage.
2. If any man might have an action when he had no more damage than every other man had, thousands should equally have their several actions, which the law permits not.
As if transportation of wooll, mony, corn, horses, bell-metal, beer, or the like, be penally prohibited by Acts of Parliament, no subject can derive a particular damage to himself for having an action against the offender.
Secondly, if one might have an action for such offences, every man might have the like, therefore such offences are only to the King's damage in his publique capacity of supreme governour, and wronging none but himself, he may (as every man else may) dispense with his own wrong, when it is absque damno & injuria aliorum.
And though such laws are pro bono publico in some sense, they are not laws pro bono singulorum populi, but pro bono populi complicati, as the King in his discretion shall think fit to order them for the good of the whole.
In this notion the estate of every pater familias may be said to be pro bono communi of his family, which yet is but at his discretion and management of it; and they have no interest in it, but have benefit by it.
There are other penal laws by Acts of Parliament, and punishable at the Kings suit by indictment or presentment; the transgressing of which is to the immediate wrong of particular persons, and for which the law gives them special actions, with which the King cannot dispense: as he cannot licence a man to commit maintenance, to make a forcible entry, to carry distress out of the hundred, contrary to the statute, which yet are no mala in se; for it is no malum in se to maintain in a just cause, to enter forcibly where the entry is lawful, to carry a distress farther or nearer; but are mala when prohibita, and non when permissa, as they would be were the laws repeal'd, and were before they were made: from whence it is clear, there are mala prohibita by Acts of Parliament with which the King cannot dispense: and next, it follows not, that a malum with which the King cannot dispense, is a malum in se, which are the exceptions I took to the receiv'd rule, out of the case of 11 H. 7.
No non obstante can dispense in these cases, and many the like, for that were to grant that a man should not have lawful actions brought against him, or he impleaded at least in certain actions, which the King cannot grant.
For the same reason the King cannot licence a baker, brewer, or victualler, to break the assise of bread or ale, nor a miller to take more toll than the law appoints, nor a taverner to break the assise of wine, nor a butcher to sell measled swines flesh, or murrain flesh, nor any man to forestall the market by a non obstante of the Statute de Pistoribus, which prohibits all these under severe penalties.
Nor can he licence butchers, fishmongers, poultrers, or other sellers of victuals, nor hostlers to sell hay and oats at what price they please, by a non obstante of the statute of 23 E. 3, c. 6, and 13 R. 2, c. 8, which require that the prises be moderate. And it was so resolved and decreed in the Star-Chamber by opinion of all the Judges, 9 Car. 1, and that the justices of the peace, in the respective counties, were to ascertain the prises of hay and oats.
He cannot licence a labourer to take more wages, nor any officers to take more fees than the law allows, nor to distrain a mans plough-beasts, where there is other distress; for in these, and multitudes of like cases the damaged person hath his action equally as for a nusance, to his particular hurt.
And even in the case of a common informer, who cannot sue but in the King's name, as well as his own, when he is once intitled to action, which he never is but by commencing suit, for then the action popular is become his proper action, the King can neither pardon, release, or otherwise discharge his right in the suit, as is fully resolved 1 H. 7, and in many other books, much less can he discharge or prevent the action of any other man.
The statute of 12 Car. 2, c. 25, upon which this case ariseth, hath examples of penal laws in both these kinds.
1. Every man is prohibited to sell wine by retail, contrary to the Act, upon forfeiture of five pounds for every offence; from which offence no third man can possibily derive a particular damage to himself, for which he can have an action upon his case.
2. If any man should have an action because another sold a pint of wine without licence, every man should have the like action which the law permits not.
Whence it follows, that the offence wrongs none but the King, and therefore he may, as in like cases, dispense with it.
By a second clause in that Act, the mingling of wine with several ingredients therein mentioned, is penally prohibited; as by another clause the sale of wine at greater prizes than the Act limits.
He that shall offend, either by unlawful mixtures, or by selling dearer than the law admits, doth a particular wrong to the buyer, for which he may have his action; and therefore the King cannot dispense with either of those offences.
If forreign manufactures, or forreign corn, as by the Acts of 3 E. 4, c. 4, & 3 E. 4, c. 3, be prohibited for support of those artificers, and the husbandmen within the kingdom, a licence to one or more to bring them in, if general, is void by the case of monopolies, notwithstanding a non obstante.
1. All penal laws, when made, and in force, are equally necessary, and in things necessary there is no gradation of more or less necessary.
2. If any penal laws were possibly less dispensable than others (but upon the differences already given) those capitally penal were less dispensable than those less penal; but it is not so, for coyning mony of right alloy in imitation of the Kings coyn, is capitally penal without licence, but it may be licenced.
If transporting wooll were felony, yet the King may licence it.
It is capital to multiply gold or silver by the statute of 5 H. 4, c. 4, but may be licenc'd; as was done to John Faceby, tempore H. 6, the dispensation with a non obstante of that statute may be seen, Coke's Placita Corone, f. 74, c. 20.
If an ad quod damnum issue to enquire ad quod damnum vel praejudicium, a licence for a mortmain will be: one inquiry is: Si patria per donationem illam magis solito non oneretur, etc. Though the retorn be, that by such licence patria magis solito oneretur, yet the licence, if granted, will be good, which shews that clause is for information of the King, that he may not licence what he would not, and not for restraint, to binder him to licence what be would. For by Fitzherbert the usual licence now is with: Et hoc absque aliquo brevi de ad quod damnum. And when the King can licence without any writ of ad quod damnum, he may, if he will, licence whatever the retorn of the writ be. Though it be said in the case of monopolies, that in the Kings grant it is always a condition expressed or implyed, quod patria plus solito non oneretur, but that seems but gratis dictum.
So if the King will, ex speciali gratia, licence a mortmain, the Chancellor need not issue any ad quod damnum, for the King, without words of non obstante, is sufficiently appris'd by asking his licence to do a thing, which at common law might be done without it, that now it cannot be done without it. And that is all the use of a non obstante.
But whether in such cases licences limited to certain quantities of the commodities to be imported be good (as some collect from that case, as it is reported, which appears not by the judgment) nor in what cases licences may be general, or ought to be limited, is not now properly before us.
1. If exportation, importation of a commodity, or the exercise of a trade be prohibited generally by Parliament, and no cause expressed of the prohibition, a licence may be granted to one or more without limitation to export or import, or to exercise the trade: for by such general restraint the end of the law is conceived to be no more than to limit the over-numerous exporters, importers, or traders in that kind, by putting them to the difficulty of procuring licences, and not otherwise, and therefore such general licences shall not be accounted monopolies.
2. In such cases the law implies the King may licence as well as if the prohibitory law had been that no such importation, exportation, or trading should be without the King's express licence, in which case the licence requires no limitation to a certain quantity.
3. It is apparent, that if the exercise of a trade be generally prohibited, the King's licence must be without any limitation to him that hath it, to exercise his trade, as before it was prohibited, else it is no licence at all.
4. Where the King may dispense generally he is not bound to it, but may limit his dispensation if he think fit.
5. If to avoid a monopoly his dispensation upon all prohibitory laws generally must by law be limited; his limited dispensation may be for greater quantities than were imported or exported before the restraint, because the quantity in the dispensation is left indefinite, and may be any quantity certain, and consequently the end of the restraint equally frustrated, and the monopoly as effectual as if the licence had been general, though it be limited.
6. If a commodity be prohibited to be exported or imported, because too great quantities of it is carried out, or brought in, the licences ought to be limited to answer the end of the Act.
7. If importation of a commodity be prohibited, to maintain the native artificers of that commodity in the kingdome with livelyhood, and so of exportation, no licence, either with stint or limitation, or without it, seems good by way of merchandise; for both of them may equally frustrate the end of the Act in the support of the native artificers for the former reason, but such a licence may be good to import for a mans private use, though in the case of monopolies it is said, such a licence (without any limitation) is a monopoly, which is as much perhaps by implication, as to say that such a licence with a limitation is no monopoly, quod non credo.
As to the second question; admitting King James might have dispens'd with particular persons for selling wine by retail, as the constant course hath been since the Statute of 7 E. 6.
Whether he could dispense with a corporation, or with this Corporation of Vinters, and their successors, as he hath done, having no possible knowledge of the persons themselves, or of their number, to whom he granted his dispensation? Which is the reason insisted on why his grant is not good.
As to that,
1. First, that the nature of the offence is such as may be dispens'd with, seems clear in reason of law, and by constant practice of licencing particular persons.
2. Where the King can dispense with the particular persons, he is not confined to number or place, but may licence as many, and in such places, as he thinks fit.
An Act of Parliament, which generally prohibits a thing upon penalty which is popular, or only given to the King, may be inconvenient to divers particular persons, in respect of person, place, time, etc. For this cause the law hath given power to the King to dispense with particular persons.
But that ease touches not upon any inconvenience from the largeness of the Kings dispensation, in respect of persons, place, or time, which the law leaves indefinite to the pleasure of the King, as the remedy of inconveniences to persons and places by the penal laws, some of which may be very inconvenient to many particular persons, and to many trading towns, others but to few persons or places, and the remedy by dispensation accordingly must sometimes be to great numbers of persons and places and sometimes to fewer.
If the wisdome of the Parliament hath made an Act to restrain pro bono publico, the importation of forreign manufactures, that the subjects of the realm may apply themselves to the making of the said manufactures for their support and livelyhood, to grant to one or more the importation of such manufacture (without any limitation) non obstante, the said Act is a monopoly, and void.
3. It is admitted a corporation is capable of a dispensation; as where the King hath an inheritance in the thing concerning which the dispensation is (so it was express'd) and therefore he may dispense with a corporation of merchants, or with a town corporate, not to pay custome for some commodity, as he may with particular persons.
This seems to end the question; for if the offence in its nature may be dispens'd with, and a corporation be capable of a dispensation, the King's not knowing the persons or numbers (which is the pretended reason) will not avoid the dispensation in the present case of the vintners.
For by the same reason dispensations to corporations, and their successors, would be void in all eases, as well as in this; for their persons and numbers must be equally unknown to the King, in every case, as in the present case.
That a dispensation may he granted to a body corporate or aggregate, as well as to private persons, Suarez de Legibus, which Mr. Attorney cited in this case, and is in truth a most learned work, is very express.
Dispensation autem per so primo versari potest circa personam privatam, quia solum est particularis exceptio a Communi Lege; potest etiam ferri circa communitatem aliquam qus sit pars majoris communitatis, sicut uni Religioni, Ecclesim aut Civitati conceditur privilegium, per quod excipitur a Lege Communi. Potest etiam concedi toti communitati pro uno Actu, vel pro certo tempore per modum suspensionis. This last must be understood where the dispensator is the intire law-maker.
And accordingly dispensations are as frequently granted by the Pope, from whom the use of dispensations was principally derived to us, to bodies corporate, that is, to religious orders, as to private persons, as is apparent in the Bullaries, if any will consult them; but I forbear citing them, because they are forreign authorities.
E. 3 licens'd the citizens of Waterford in Ireland, their heirs and successors, to carry their staple merchandise to what parts they pleased beyond the seas, being bound under great penalties by Act of Parliament, to bring them to the staple. And the Judges twice assembled 2 R 3, & 1 M. 7, made no question of the King dispensation, but the question was because later laws of Henry the Sixth's time had enacted the bringing of Irish merchandise to the staple at Calice.
The King may licence an aggregate body corporate, and their successors, to damm up an ancient current of the sea through their land for carriage by water to a vill, and that such passage and carriage shall be by a new current, as commodious, as appears by a writ of ad quod damnum in the Register, in the case of The Prior and Covent of Christ-Church in Canterbury, which is a body corporate.
The like licence may be to such body corporate, and their successors, to bring the water-course of a well for the use of that community, as by like writ of ad quod damnum appears in the case of The Prior and Covent of K. for diverting such a watercourse for the use of their house.
And by another like writ, in the case of The Fraternity of Fryers Minors, for diverting of a water-course, or part of it, to serve the house of the fraternity.
And so a licence may be to a corporation to stop up a high-way through their land, a more commodious being by them set out in place of it, as is common in the cases of particular persons.
And in all these cases, the benefit of the licence is to every particular person of the corporation, more than to the body politique.
And these are not licences where the King hath an inheritance, unless all high-ways and water-courses be accounted the Kings inheritance.
The like dispensation or exemption the King may grant to a corporation that they shall be toll-free, which extends to every man, and not to the corporation only in their corporate capacity.
And a dispensation and exemption differ in sound only; for a dispensation is properly to licence a person to do a thing which he can do, but is by a law penally prohibited from doing it.
An exemption is properly to licence a man, or men, to do a thing which they are penally by a law precepted to do.
Edward the Third granted to the Bailiffs, Mayor, and Burgesses of Oxford, that none of them should be sworn in juries with forreigners that were not of the town.
The like grant was made to the commonalty and citizens of Norwich by Edward the Fourth, that they should not be put in juries out of the town of Norfolk. These are dispensations or exemptions to a corporation, and their successors, that none of them should serve in juries but within their corporation, which otherwise by the law they must have done: and the like we meet with daily to other towns in the circuits.
Now if it shall be said, that high-ways, the water-streams, tolls of markets, fines of jurors, and the like, are the Kings inheritance as well as his customes are; and therefore the King, as to them, may dispense with corporations, then
It is clear, that penal laws (the breach of which enables no man to an action for his damage thereby) and the forfeiture and punishment for breaking them are much more the Kings inheritance.
Therefore, ex concesso, the King may dispense with corporations as to them.
2. The King cannot dispense in any case, but with his own right, and not with the right of any other. And every right of the Crown is its inheritance or interest: therefore where the King can dispense at all, he hath an inheritance or interest, and consequently where he can dispense at all, he may dispense to a corporation.
If the laws of 7 E. 6, and 12 Car. 2, had been penn'd thus, every man that sells wine contrary to this Act, shall pay the King two pence for every pint so sold; this two pence had been a duty and inheritance to the King, as his customes are, without difference; and as the duty of six pence lately was upon every quart of French wine retail'd. Why then, the greater or less the duty be, alters not the nature of the King's inheritance in the duty.
Therefore if the Acts had been, that every seller of wine, contrary to the Act, should pay the King five pounds for every pint sold, there five pounds had equally been the King's duty and inheritance, as the two pence before; and there had been no restraint to sell, but what was made by payment of so great a duty to the King?
Secondly, the Acts so penn'd had equally hindred the selling of wine, as now they do by words, prohibiting sale upon forfeiture of five pounds; for in both eases the payment of five pounds, whether by forfeiture or duty, is that which only prevents the selling.
Therefore the laws were the same in effect, either way penn'd, and consequently the forfeiture of five pounds given, as the Acts stand penn'd, is equally the King's inheritance, as if it had been given by way of duty.
In the next place I will shew what dispensations or licences are, as I conceive, unquestionably good to corporations, and their successors.
1. A licence to purchase in mortmain, which none can have but a corporation or single body politique.
2. A licence to make a park, chase, or warren in their own ground, which the law prohibits to be done without licence.
3. A licence to convert some quantity of their ancient arable land into pasture, which was prohibited by the Acts of 4 H. 7, 5 Eliz. and divers other laws, most of which were repeal'd in 21 Jae. which is not material, as to the question in hand. And that is an offence also at the common law, and I remember it proceeded against as such, tempore Car. 1. in the Star-Chamber, after the repeal of most of the statutes prohibiting it.
4. A licence to convert part of their wood-land into arable, contrary to the Statute of 35 H. 8, and contrary also to the common law.
I have a note of a charter of King John, to an abbot and his covent, by which they had licence, Nemora sua pertinentia Domui sue redigere in culturam.
5. A licence to erect some cottages upon their waste, or other lands, contrary to the statute of 31 Eliz. e. 7.
6. A licence to erect a fair or market.
7. A licence to an abbot and his covent, to appropriate a rectory.
In all these cases the King hath no knowledge of the persons themselves, or of their number, to whom he grants his licence or dispensation; therefore that can be no reason to avoid the charter of the Corporation of Vintners.
A dispensation or licence properly passeth no interest, nor alters or transfers property in any thing, but only makes an action lawful, which without it had been unlawful. As a licence to go beyond the seas, to hunt in a mans park, to come into his house, are only actions, which without licence, had been unlawful.
But a licence to hunt in a mane park, and carry away the deer kill'd to his own use; to cut down a tree in a mans ground, and to carry it away the next day after to his own use, are licences as to the acts of hunting and cutting down the tree; but as to the carrying away of the deer kill'd, and tree cut down, they are grants.
So to licence a man to eat my meat, or to fire the wood in my chimney to warm him by, as to the actions of eating, fireing my wood and warming him, they are licences; but it is consequent necessarily to those actions that my property be destroyed in the meat eaten, and in the wood burnt, so as in some cases by consequent and not directly, and as its effect, a dispensation or licence may destroy and alter property.
To the presidents of Wright versus Horton, & Alios.
Of Norris versus Mason, Trin. 2 Jae. Both which were the same cases with the present, upon the letters patents of Queen Elizabeth, the ninth of her reign, to the Vintners of London.
Of Young versus Wright, Mich. 12 Car. 2.
No answer hath been given, but that which is none, viz. that the two first judgments were without argument, which is not essential to a judgment; and judgments are frequently given when the cause is conceiv'd clear (as it seems these were conceiv'd) if there were no argument, which is but a non liquet.
The answer to the last president is, that the judgment upon the roll is torn off. That some of the Judges are living who gave the judgment, and many more who know it to have been given.
A special licence to the Fraternity of Corvisors, London, to exercise their callings, notwithstanding a penal statute to the contrary, 1 R. 3.
Inhabitantibus in Com. Norf. & Civitat. Norwie. authoritat. barganizare pro Lanis, non obstante Statute 37 H. 8.
Mercatoribus de Venice Licenc. Special. emere in aliquo Com. hujus regni Angl. 500 Saccas Lanarum, ac illas operare, & sic operat. in partes exteras, & transmarinas carriare absque impedimento, non obstante Statut. 4 H. 7.
Mereatoribus transeuntibus Licenc. asportare pecun. contra formam Statuti.
Johanni Gale Mil. Licenc. pro omnibus suis servis sagittare in vibrell. non obstante Act. Parliament. Cons. Tho. Com. South.
A proclamation dispensing with a penal statute touching clothmaking, 1 R. 3.
Henr. Campion & al. Brasiator. de Lond. & Westm. licenc. retinere alienos in servitiis suis.
Major. Civitat. Heres. Licenc. perquirere terrai ad Annuum valorem 40 Marcarum, non obstante Statuto.
Ballivis, etc. de Yarmouth, magna Licenc. transportare 40,000 quarter. frument. & gran. infra 10 Ann.
President. etc. Mercatorum Hispanim & Portugal, infra Civitat. Cestr. Licenc. transportare 10,000 Dickers of Leather per 12 Ann.
Mercatoribus de le Stillyard, licence for three years to export any manner of woollen cloth, at 61. and under, unrowed, unbarbed, and unshorn, without forfeiture.
Mercatoribus Perielitan, a licence to transport all manner of woollen cloth, non obstante Stat. Roberto Heming & alios, licence to sell faggots within London and Westminster, non obstante Stat.
A licence to the gun-makers of London to transport guns.
A licence to the Mayor, etc. of Bristoll, that they may lade and unlade their ships, etc. of their goods, and lay the same on land, and from land to transport them, non obstante Statut.
Mercatoribus Periclitan, licence to transport their merchandises in strange ships, non obstante Statut.
Mercatoribus de le East-Indies, licence to transport 10,000l. in English gold.
That by this patent every freeman of London, and of the Corporation of Vintners, which freedom the city and corporation gives to whom they please, is dispens'd with. So in effect the City of London and Corporation of Vintners give dispensation to sell wine, which by law none but the King can grant, as is resolved in the Seventh Report.
The King incorporates a town by name of mayor and burgesses, with power to the burgesses annually to choose a new mayor, and grants that every mayor, at the end of his majoralty, shall be a justice of the peace in that corporation: it is no inference, because the burgesses elect the mayors, that therefore they make justices of peace, for they are made so by the King's Great Seal, and not by them. The case is in Brook, title Commission, N. 5.
Nor is that case of penal laws so generally true perhaps, if not understood where the King governs in person, and not by his lieutenant, as in Ireland, or by governours; as in the plantations of the Western Islands.
The City of London grants dispensations in this case, no more than the burgesses make justices of the peace in the other.
Another objection made, is, that the King cannot dispense with a man to buy an office contrary to the penal Statute of.5 E. 6, nor with one simoniacally presented to hold the living, nor with any of the House of Commons not to take the oath of allegiance according to the statute 7 Jac. c. 6, nor to sue in the Admiralty for a contract on the land, contrary to the Statute 2 H. 4.
First, it is against the known practise since the Statute of 7 E. 6, that the King cannot dispense for selling of wine, for that objection reaches to dispensations with single persons as well as corporations.
2. The reason why the King cannot dispense in the cases of buying offices and simoniacal presentations, is because the persons were made incapable to hold them; and a person incapable is as a dead person, and no person at all as to that wherein he is incapable: for persons entred in religion, and dead in law, were not to all purposes dead, but to such wherein they were incapable to take or give.
3. A member of the House of Commons is by 7 Jac. persona inhabilis, and not to be permitted to enter the House before the oath taken. A particular action is given by 2 H. 4, for such suit in the Admiralty, and such licence gives the Admiralty a jurisdiction against law, 4 & 5 P. M. Dyer, 159, Domingo Belatta's case.
A third objection was, that this general dispensation answers not the end and intention of the Act of 7 E. 6, but seems to frustrate and null that law wholly: and though the King can dispense with penal laws, yet not in such manner, as to annihilate and make them void.
If this objection held good in fact, it is a material one; but the Act of 7 E. 6 intended not that no wine should be sold, nor that it should be with great restraint sold, but not so loosly as every man might sell it. And since it is admitted that the Act of 6 E. 7 restrains not the King's power to licence selling wine (which perhaps was more a question than this in hand) it is clear the King may licence, as if the Act had absolutely prohibited selling wine, and left it to the King to licence as he thought fit, not abrogating the law. And if so,
The end of the Act being only that every man should not sell wine that would, as they might when the Act was made, and not to restrain convenient numbers to sell for the kingdoms use.
The King could not better answer the end of the Act, than to restrain the sellers to freemen of London.
To the Corporation of Vintners, men bred up in the trade, and serving apprenticeships in it.
And that such should be licenc'd without restraint, is most agreeable to the laws of the kingdom, which permits not persons, who had served seven years to have a way of livelyhood, to be hindred from exercising their trades in any town or part of the kingdom, as was resolved in The Taylors of Ipswich case, in the Eleventh Report. And therefore the King had well complyed with the ends of the law, had he licenced such to sell in any part of the kingdom, which he did not, but confined them to towns.
It hath been said to the case of licences to corporations for purchasing in mortmain,
That the laws against mortmain are not penal, because they may be dispens'd with without a non obstante, and so cannot penal laws be.
It is durus sermo that those laws are not penal which give the forfeiture of the land. 2.
By the statute of 1 H. 4, c. 6, and 4 H. 4, c. 4, the King is restrained in some cases from granting as he might at the common law.
Therefore without a non obstante of those laws, it cannot appear that the King would have granted it if he had been appris'd of those restraining laws: therefore a non obstante in such case is requisite. But when a man might, by the common law, purchase without licence, as in the case of mortmain, before the prohibiting statutes, er might export or import a prohibited commodity before restraint by statute, a licence ex specialia gratia is sufficient without a non obstante: for by petitioning for a licence, the King is sufficiently informed the law permits not the thing without a licence (which is all the use of a non obstante). This enough appears by the case in Dyer, 269, where a licenbe, ex speciali gratia, is good without issuing any ad quod damnum in the case of mortmain.
3. The writ of ad quod damnum in that case, which regularly issues, informs the King better than a non obstante would do.
Next, it hath been said in the case of mortmain, the King dispenseth only with his own right, and concludes not the mean lords.
It is true, for the King in no case can dispense but with his own light, and not with anothers.
Answer hath been offered to the President of Waterford, by which the King dispens'd with the offence of not bringing the staple merchandise from Ireland to Calais, being so penal, which was an offence by 10 H. 6, c. and 14 H. 6, c. to the universal hurt of the kingdom, and therefore much greater than selling of wine contrary to the statute of 7 E. 6, c. but that was as hath been said,
Because those merchants were to pay custome to the King, which was his inheritance, and with which he could dispense.
This put together sounds thus, The merchants of Waterford were to pay customes to the King for their staple merchandise, for which he might dispense if he would, but never did, for any thing appears: the merchants of Waterford were, upon penalties, to bring their staple merchandise to Calais, with which the King could not dispense, had no customes been due from them, yet he did dispense with them for that which he could not, viz. bringing their goods to Calais, because he did not dispense with them for that which he could, viz. their customes, there is no inference nor coherence in this answer.
But it also appears by the statute 27 E. 3, c. 11, of the staple for the reason therein given, that the merchants of Ireland were to pay their customes in Ireland, and to bring their cockets of their payments there to the staple, lest otherwise they might be doubly charg'd.
Therefore the customes which were paid in Ireland before the goods brought to the staple, was no cause for dispensing with the Corporation of Waterford for not bringing their merchandise to the staple, according to the penal laws for that purpose. The licence of Edward the Third, pleaded by the men of Waterford, was perhaps after the Statute of 27 E. 3, when they were not to pay their customes at the staple; but however, the licences by them pleaded, 1 H. 7, by Henry the Sixth, and Edward the Fourth, were long after they were to pay their customes in Ireland, and not at the staple.
I must say as my brother Atkins observed before, that in this case the plaintiffs council argue against the Kings prerogative, for the extent of his prerogative is the extent of his power, and the extent of his power is to do what he hath will to do, according to that, ut summm potestatis Regis est posse quantum velit sic magnitudinis est velle quantum potest; if therefore the King have a will to dispense with a corporation, as it seems K. James had in this  case, when the patent was granted, but by law cannot, his power, and consequently his prerogative, is less than if he could. 1.
Malum prohibitum is that which is prohibited per le statute: per le statute is not intended only an Act of Parliament, but any obliging law or constitution, as appears by the case: for it is said, the King may dispense with a bastard to take holy orders, or with a clerk to have two benefices, with cure; which were mala prohibita by the canon law, and by the Council of Lateran, not by Act of Parliament.
2. Many things are said to be prohibited by the common law, and indeed most things so prohibited were primarily prohibited by Parliament, or by a power equivalent to it in making laws, which is the same, but are said to be prohibited by the common law, because the original of the constitution or prohibiting law is not to be found of record, but is beyond memory, and the law known only from practical proceeding and usage in Courts of Justice, as may appear by many laws made in the time of the Saxon Kings, of William the First, and Henry the First, yet extant in history, which are now received as common law. So if by accident the records of all Acts of Parliament now extant, none of which is elder than 9 H. 3, (but new laws were as frequent before as since) should be destroyed by fire, or other casualty, the memorials of proceeding upon them found by the records in judicial proceeding, would upon like reason be accounted common law by posterity.
3. Publique nusances are not mala in se, but mala politica & introducta, though in some passages of Coke's Posthuma's they are termed mala in se, because prohibited at common law, which holds not for the reasons before given: for liberty of high-ways strangers have not in forreign territories, but by permission, therefore not essential to dominion, because it may be lawfully prohibited. 2. Liberty of the high-ways is prohibited with us in the night, by the Statute of Winchester, in some seasons of the year, and in times of warr, and for apprehension of thieves in time of peace, etc. The assise of bread and ale is constituted by statute, and may be taken away. Forestalling the market and ingrossing hath like institution; the first was prohibited by Athelstans laws and William the First's, and may be permitted by a law; the second is allowed by the late laws when corn is at a certain low price, quaere the law tempore Car. 2, the pulling down of bridges wholly, or placing them in other places, may be done by a law; and what may be, or not be, by a law, is no malum in se, more than any other prohibitum by a law is.
Judgment was given by the advice of the Judges in the King's Bench, quod querens nil capiat.