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the selected writings

and speeches of

Sir Edward Coke



Volume One

edited by

steve sheppard

liberty fund

indianapolis, indiana

This book is published by Liberty Fund, Inc.,

a foundation established to encourage study of

the ideal of a society of free and responsible individuals.

The cuneiform inscription that serves as our logo and as the design

motif for our endpapers is the earliest-known written appearance

of the word “freedom” (amagi), or “liberty.” It is taken from a

clay document written about 2300 b.c. in the Sumerian

city-state of Lagash.

᭧ 2003 Liberty Fund, Inc.

Frontispiece and cover art:

volume I: Reproduced courtesy of the Right Honourable

the Earl of Leicester and the Holkham Estate.

volume II: Collection of the Editor.

volume III: Corbis-Bettmann.

08 07 06 05 04 03 p 54321

Library of Congress Cataloging-in-Publication Data

Coke, Edward, Sir, 1552–1634.

[Selections. 2003]

The selected writings and speeches of Sir Edward Coke

edited by Steve Sheppard.

p. cm.

Includes bibliographical references and index.

isbn 0-86597-313-x (pbk.: alk. paper)

1. Law—England.

I. Sheppard, Steve, 1963–

II. Title.

kd358.c65 2003

349.42Ј092—dc22 2003061935

ISBNs:

0-86597-313-x volume I

0-86597-314-8 volume II

0-86597-441-1 volume III

0-86597-316-4 set

Liberty Fund, Inc.

8335 Allison Pointe Trail, Suite 300

Indianapolis, Indiana 46250-1684

Summary of Contents

Annotated Table of Contents vii

Acknowledgments and Dedicatory xvii

A Note on the Texts, Editions, and Translations xix

Introduction xxiii

Chronology of Events Material to the Life, Times, Writings, and

Legacy of Sir Edward Coke from the Death of Henry VIII to the

Opinion in Marbury v. Madison xxxiii

Editions of Coke’s Works lxxiii

Mottoes and Crests of Sir Edward Coke lxxxix

I. Reports 1

II. Coke’s Speech and Charge at the Norwich Assizes 521

III. Excerpts from the Small Treatises 555

IV. Excerpts from the Institutes of the Lawes of England 573

V. Speeches in Parliament 1185

VI. Appendix I: Ofﬁcial Acts Related to Sir Edward Coke’s Career 1305

VII. Appendix II: The Epitaph of Sir Edward Coke 1335

Selected Readings 1341

Table of Regnal Years 1379

Index 1407

Annotated Contents

Mottoes and Crests of Sir Edward Coke lxxxix

His Ring as Sergeant of Law

His Crest

His Motto

I. Reports

Part One of the Reports

Preface Case reports and law study. 4

Shelley’s Case Classic property case; new rule

construing language of grant in tail

favors marketability over feudal interests

in entailment. 6

Part Two of the Reports

Preface The antiquity of the Common

Law. 39

Manser’s Case The dangers of legal instruments

that are unintelligible to the layman;

an illiterate person who transfers

by deed must be read the

instrument. 42

The Case of

Bankrupts

A bankrupt debtor must pay creditors

proportionately to their debts and

cannot favor one; power of

commissioners to avoid disproportionate

transfers. 45

The Archbishop of

Canterbury’s Case

Statutory interpretation; power of

religious houses to received tithes. 49

Annotated Contentsviii

Part Three of the Reports

Preface Reports, history of courts, law study. 59

Heydon’s Case The method and the role of the judge

in interpreting statutes; a copyhold case. 78

Fermor’s Case Fraud bars the legal effect of

transactions; fraud in a position of trust

is particularly odious; public policy

problems if fraud is allowed as basis for

judicial relief; a ﬁne and copyhold case. 84

Part Four of the Reports

Preface Reports, history, judge’s obligations. 94

The Lord Cromwell’s

Case

Qui tam proceeding in slander; Coke’s

ﬁrst big case. 105

Cutler v. Dixon Immunity for acts in judicial

proceeding; scandal must be based on

acts of impropriety, not good behavior. 111

Vaux’s Case Double jeopardy, being indicted twice

for the same felony, is barred 112

Slade’s Case Action on the case allowed; beginnings

of commercial and contract law. 116

Part Five of the Reports

Preface The law is important to all citizens, but

they do not know it well, which is why

Coke writes reports. 126

Foster’s Case Constables may present an arrestee to

any justice of the peace, not only the

justice who signs an arrest warrant. 128

The Chamberlain of

London’s Case

City taxes; King may grant charters to

ships to load in certain havens. 131

Clark’s Case Local governments may not create

imprisonable offences. 134

The Case of

Market-Overt

Stolen goods sold in a merchant of a

different trade than the goods can still

vest good title in a new buyer. 134

Annotated Contents ix

Semayne’s Case Rights of homeowner to bar entry;

house is to him as his castle; powers of

and limits on sheriff to enter. 135

Rooke’s Case Sewer commissioners should tax equally

all who are threatened by a riverbank;

discretion, administration. 141

Pinnel’s Case Satisfaction of debts. 144

The Case de Libellis

Famosis

Rules punishing libel, which include

statements that harm reputation, even if

true and even if the reputation is of a

dead person. 145

Part Six of the Reports

Preface Common Law existed before the

Conquest. 150

Jentleman’s Case The King can create judges, but judges

determine matters after they are

appointed. 157

Part Seven of the Reports

Preface Case of the Post-Nati described; attack

on tract from Norwich assize address for

misrepresentation. 162

Calvin’s Case Scot born after James VI of Scotland

becomes James I of England is entitled

to hold lands in England; allegiance,

majesty, conquest, natural reason; law of

nature cannot be altered. 166

The Case of Swans Feræ naturæ and Royal beasts are the

Queen’s; one of Coke’s ﬁrst cases as

solicitor. 232

Penal Statutes Elizabeth I’s grant to another to

dispense with penal burdens is void;

separation of powers and limits of Royal

prerogative to avoid a statute. 241

Annotated Contentsx

Part Eight of the Reports

Preface Antiquity of his sources. 245

Vynior’s Case The courts will not enforce an

agreement to arbitrate. 260

Dr. Bonham’s Case Censors of College of Physicians may

not imprison for unlawful practice of

medicine, regardless of the College

charter and the Act that conﬁrmed it;

the common law controls acts of

Parliament and may declare them void;

judicial review of legislation. 264

The Case of

Thetford School

Proceeds of trust must be used

according to intent of settlor. 284

Part Nine of the Reports

Preface More about antiquities. 288

William Aldred’s Case Nuisance from a pigsty; environmental

law. 308

John Lamb’s Case Liability for libel. 313

MacKalley’s Case Requirements for criminal indictment,

arrest, and juries. 314

Part Ten of the Reports

Preface Introduction to cases; antiquities and

bibliography. 327

Sutton’s Hospital Charter of incorporation; early

corporate law case; grant of a power to

act in the future is good. 347

The Case of the

Isle of Ely

Commissioners of Sewers lack powers

to decree new rivers; public versus

private goods. 378

Part Eleven of the Reports

Preface Introduction to cases. 385

The Case of Lord

de la Warre

Disability of a hereditary member of

Lords for life does not disable heir. 388

Annotated Contents xi

The Case of the

Tailors of Ipswich

None may be barred from lawful

employment by an ordinance beyond

the limits set by statute. 390

The Case of

Monopolies

Grant by the Crown of monopoly for

making cards is void; Limits on Royal

dispensing power. 394

James Bagg’s Case Citizenship; disenfranchisement must be

based on more than subject’s impolite

words. 404

Part Twelve of the Reports

Ford and Sheldon’s

Case

Recusancy; retroactivity.

419

Case of Non Obstante Custom; Parliament cannot bind King’s

prerogative. 423

If High

Commissioners

have Power to

Imprison

Church courts and the power to

imprison.

425

Floyd & Barker Immunity of counsel and judges. 427

Of Oaths before an

Ecclesiastical Judge

Ex Ofﬁcio

No man shall be examined on secret

opinions.

432

Of Pardons Royal pardon can only waive penalty,

not crime. 439

Customs, Subsidies,

and Impositions

(Bates’s Case)

Limits on Royal power to tax.

441

Buggery Unlawful sexual acts. 446

Premunire Writ (similar to prohibition) for use

against church court. 447

Nicholas Fuller’s Case No consultation with a judge

will be given out of term; construction

of jurisdiction of high commission

is a judicial matter of Common

Law. 454

Annotated Contentsxii

Sir Anthony Roper’s

Case

High Commissioners and habeas

corpus. 461

The Case of Heresy Evolution of procedure; indictment of

Lollards brought limitation of deﬁnition

by statute. 465

Langdale’s Case Prohibition does not require a suit in

Common Pleas. 471

Mouse’s Case Justiﬁcation by necessity. 477

Prohibitions del Roy The King cannot judge any case he

chooses. 478

The Lord

Abergaveny’s Case

Ofﬁce does not attach at delivery of

writ, but in seating at Parliament. 481

Of Convocations Limits on church convocations, which

cannot act contrary to the Common

Law, statute, or custom. 484

Proclamations King cannot change the law. 486

Thomlinson’s Case Habeas corpus case against Court of

Admiralty. 490

Walter Chute’s Case Ofﬁces created by the King must be to

public beneﬁt. 491

Sir Stephen Proctor’s

Case

Procedure in Star Chamber.

494

Exaction of

Benevolence

Voluntary grants demanded by the

Queen are lawful. 496

Part Thirteen of the Reports

Preface 499

Prohibitions Prohibitions. 501

The Case de Modo

Decimandi

Prohibitions debate.

505

II. Coke’s Speech and Charge at the Norwich Assizes

Preface 523

Coke’s Preface 525

Coke’s Charge 528

Annotated Contents xiii

III. Excerpts from the Small Treatises

A. Book of Entries

Preface 558

B. The Compleat Copyholder

Section 33, on Customs 563

C. Little Treatise on Baile & Mainprize

Conclusion, 29–31 569

IV. Institutes of the Lawes of England

A. The First Part of the Institutes; Coke upon Littleton

Preface Life and project of Sir Thomas

Littleton, and some about the law;

table of consanguinity 577

Sections 1–12, Fee Simple 591

Section 21, Fee Tail, part 2 681

Section 69, Tenant at Will, part 2 683

Section 80, Tenant by the Verge, part 3 684

Section 96, Escuage, part 2 685

Section 108, Knight’s Service, part 6 696

Section 138, Frankalmoin, part 5 700

Section 170, Tenure in Burgage, part 9 701

Section 199, Villenage, part 18 711

Section 342, Conditional Estates, part 17 723

Section 366, Conditional Estates, part 41 724

Section 372, Conditional Estates, part 47 731

Section 412, Descents, part 27 731

Section 464, Releases, part 20 734

Section 481, Releases, part 37 737

Section 723, Warranty, part 30 739

Section 728, Warranty, part 35 740

Epilogue 742

B. The Second Part of the Institutes

Prologue 746

Magna Carta (complete) 755

Annotated Contentsxiv

Merton, 20 Henry III

(excerpts)

Preface 914

Chapter 9 Common Law, Parliament 916

Chapter 10 Suits 921

Chapter 11 924

Marlebridge, 52

Henry III

Private disputes to be resolved by

law

Preface 924

Westminster 1,

3 Edward I (excerpts)

Preface History of statute 927

Glocester (excerpts)

Preface History of statute 932

Westminster 2,

13 Edward I (excerpts)

Preface History of statute 942

Westminster 3,

18 Edward I

Tenants may assign tenancies.

Preface 943

C. The Third Part of the Institutes

Table of Offenses 945

Preface 949

Chapter 1, High Treason 952

Chapter 2, Petit Treason 992

Chapter 3, Misprision of Treason 1028

Chapter 4, Conspiring to Kill the King 1029

Chapter 5, Heresy 1033

Chapter 6, Felonie by Conjuration, Witchcraft, Sorcery and

Inchantment 1041

Chapter 62, Indictments 1048

D. The Fourth Part of the Institutes

Table of Courts 1054

Preface 1058

Annotated Contents xv

Chapter 1, Of the High and Most Honourable Court of Parliament 1062

Chapter 7, Of the Court of the Kings Bench 1166

V. Speeches in Parliament

A. 1593 Three petitions; Coke as Speaker of the

House; liberty of speech, freedom of

Parliamentarians from arrest, and free

access for Parliamentarians; laws. 1187

B. 1621 Petition of Grievances; privileges of

Parliament; impeachments. 1194

C. 1625 Subsidies. 1217

D. 1628 Petition of Right. 1225

VI. Appendix I: Ofﬁcial Acts Related to Sir Edward Coke’s Career

A. The High Commission (Coke refuses to appear), 1611 1307

B. Commendams and the King’s Displeasure, 1616 1310

C. Coke’s Hearing, June 26, 1616 1323

D. Coke’s Arrest After Parliament, 1621 1329

E. Sir Edward Coke’s Case (The Sheriff’s Oath), 1626 1332

VII. Appendix II: The Epitaph of Sir Edward Coke 1336

Selected Readings Concerning the Life, Career,

and Legacy of Sir Edward Coke 1341

Table of Regnal Years 1379

Index 1407

Acknowledgments and Dedicatory

This project could not have been completed without the support of Liberty

Fund, its ofﬁcers and staff. Second only to their efforts were those of John

Baker, whose care has saved, in many ways, this project from an inglorious

end. I am profoundly grateful for the counsel and guidance in the development

of this project over its many years given by Richard and Morris Arnold, Barbara

Black, Marius Bolten, David Bovenizer, Alan Boyer, Dan Coquillette, Garett

Fagan, Laura Goetz, Michael Hoeﬂich, Dan Kirklin, Christian Kopff, Dan

Levine, Sam Mortlock, William Nelson, Emilio Pacheco, Mark Anthony Rey-

nolds, and especially James Stoner. Hospitality and assistance in the research

were provided by Whitney Bagnall and Kent McKeever at Columbia, David

Warrington and his staff at Harvard, Mark Nicholls at Cambridge, Sharon

Bradley at Thomas Cooley, and Glen-Peter Ahlers and David Gay at the Uni-

versity of Arkansas. The staff of the Earl of Leicester, particularly Mike Daly

and Sam Mortlock, have been terribly gracious and helpful. I am indebted

to the good ofﬁces of Mr. Mortlock, and of Marjorie and Brian Gill in pho-

tographing and conﬁrming the engraving of certain lines in Sir Edward’s epi-

taph in Tittleshall, which made possible the duplication of its inscriptions in

these volumes. Danny Abbott, Jenny Adelman, Ingrid Arinez, K. Dement,

Jay Atwood, Sylviane Donnadieu, Jessica Gunter, Richard Highsmith, John-

athan Horton, Charlene Kim, Orse Kore, Jackie Long, Al Sleicher, Louisa

Vassileva, Shanna Wells, and Brett Worlow provided valuable and tenacious

assistance in manuscript production.

This edition is dedicated to my teachers, the ﬁrst and most inﬂuential of whom

were my parents, William and Martha, all of whose care and dedication made

this edition possible.

S.M.S.

The University of Arkansas

2003

A Note on the Texts, Editions,

and Translations

This anthology of the writings of Edward Coke is designed to present a sam-

pling of the works that chronicle his career and its inﬂuence on issues of law,

constitutions, politics, government, economics, and liberty. In culling from

the vast corpus of his writings, some materials, such as cases dealing with the

struggle for judicial independence and jurisdictional primacy in the courts of

law, are overrepresented as a portion of his works. Other materials, such as

his writings on English history, titles, and estates, are quite underrepresented.

Regretably, argument and opinions of Coke’s reported by others have been

omitted owing to the limits of space and cost. It is hoped that a collected

scholarly edition of his works may one day remedy these and the other

omissions that were necessary to achieve an edition even as short as the present

one. The emphasis of this edition being on the inﬂuence of his works, it is

constructed largely from the writings as they were printed in his generation

and the next, without regard to a new comparison to the references that will

one day be mandatory for a thorough reappraisal of his works, when such an

edition is attempted.

Thus, certain limitations have been accepted in the development of this

edition of Coke’s writings. The most important was to limit the project to

the reproduction of printed materials, without attempting furthercomparisons

of those sources with manuscripts. This limitation also means that certain of

Coke’s writings that have never been published are not within the scope of

this edition.

The texts have been chosen preferring the following criteria: Editions with-

out notes, editing, or annotations by later writers are preferred; later editions

that would have been overseen by Coke and corrected by him or under his

supervision take precedence over earlier editions; editions that were translated

by Coke or by lawyers working in his tradition are preferred to those in French

and Latin; and earlier translations are preferred to later translations in order

Note on the Textsxx

to diminish the degree of anachronism, although corrected editions of early

translations have been consulted. Further, certain spelling and typographic

conventions have been modernized in order to increase the clarity of the text

for the modern reader, and some of these modernizations of the selected texts

have been adopted in the light of modernizations employed in later editions.

In particular, conventions adopted from the 1793 edition and from the prep-

aration of the Coke volumes of the 1907 English Reports have been occasionally

applied in the editing of the 1658 Reports here, the intent being to present an

edition based predominately on the 1658 text, but including such improve-

ments as may enhance its comprehensibility for the modern reader. The or-

thographic change that will most trouble specialists are the conversions of i,

j, u, v, and the long s to modern usage.

The most signiﬁcant alteration of the texts occurs in the quotations of

statutes, particularly in the excerpts from the Second Institute. Coke’s original

editions quoted the Latin text of statutes in received forms from manuscript

and printed editions. Here, the statutes have been replaced with translations

from canonical sources produced in the generations following Coke’s, which

would have been consulted by lawyers employing Coke’s materials. Magna

Carta is taken from Magna Charta (Edward Cooke, trans., London, Printed

by the assignees of R. and E. Atkins for T. Simmons, 1680), the translation

by Edward Cooke, the barrister. The reader is cautioned that this edition is

neither authoritative as a matter of current law nor the most accurate trans-

lation as a linguistic exercise, but its selection is consonant with translations

that would have reﬂected the understandings of these texts in the generations

immediately following Coke’s work. Other statutes are taken from The Statutes

of the Realm, 1810–28, a nine-volume edition of ofﬁcial, if not always precise,

translations into English, or from The Statutes at Large of 1743, an edition

edited by Owen Ruffhead that was the commercial predecessor to the ofﬁcial

edition of 1810.

All other translations are relegated to the notes and have been provided

newly for this edition.

Applying these principles, selections have been taken from the following

texts:

I. Selections from The Reports

Prefaces Vols. 1–11 The various ﬁrst London editions

Note on the Texts xxi

Reports Vols. 1–11 1658 London edition (with additional text

from 1680 and 1793)

Preface & Reports Vol. 12 1655 Bulstrode edition

Preface & Reports Vol. 13 1659 Roycroft edition

II. His Speech and Charge at the Norwich Assizes

From the second edition, 1607

III. Excerpts from the Early Treatises

The Compleat Copyholder 1644 edition

Little Treatise on Baile & Mainprize 1635 edition

Book of Entries 1671 edition

IV. Excerpts from the Institutes

First Part 1639 edition

Second Part 1642 edition (see note above regarding statutes)

Third Part 1644 edition

Fourth Part 1644 edition

V. Speeches in Parliament

1593 Cobbett’s Parliamentary History of England, I (London, 1806)

1621 Cobbett’s Parliamentary History of England, I (London, 1806), supple-

mented with private accounts recorded anonymously in A Journal or

Diary of the Most Material Passages in the Lower House of the Parliament

Summoned to be Holden the Sixteenth Day of January Anno Domini 1620

but by Prorogation Adjourned Till the 23th and then again to 30th of the

Same Month, along with The Notes by Sir Thomas Barrington of the

House of Commons in 1621.

1625 Cobbett’s Parliamentary History of England, II (London, 1807), sup-

plemented with ofﬁcial manuscript sources for the H. of C., Draft

Journal, MS. 3409, H.L.R.O. and Committee Book, MS. 3410, H.L.R.O.

Also supplemented with private accounts detailed in Bedford MS. 197

and Petyt MS. 538/8.

Note on the Textsxxii

1628 Cobbett’s Parliamentary History of England, II (London, 1807), sup-

plemented with “Proceedings and Debates of 1628” in Common Debates

1628 (New Haven, 1977), which was collected from twelve different

sources and also supplemented with materials found in manuscript

sources, Harleian MS 1601 and Stowe MS 366, and The Diary of Edward

Nicholas S.P. 16/97.

VI. Appendix I: Ofﬁcial Acts Related to Coke’s Career

Orders of Privy Council Acts of the Privy Council, HMSO, 1906

Introduction

Four hundred years ago, Sir Edward Coke published the ﬁrst volume of his

Reports. In time, his publications would include a surprisingly comprehensive

set of cases and treatises that would help to modernize the law. Moreover, his

decisions as a judge and arguments as a statesman uniquely contributed to

the foundation of the law as an institution independent of the political powers

of the state and capable of defending the freedom of the citizen. It is fair to

say that no one has contributed more to create the modern notion of the rule

of law.

Coke, whose name was pronounced “cook,” was born in 1552 in Mileham,

Norfolk, an eastern, mainly puritan country town of England. He studied at

Cambridge, became an inﬂuential and wealthy lawyer, served Elizabeth I as

Attorney General, and served James I as Chief Justice successively of the two

law courts, the Court of Common Pleas and the Court of King’s Bench. He

opposed the King’s interference in judicial affairs and was removed, although

he stayed a royal adviser for many years. He entered Parliament and fostered

the Petition of Right, a forerunner of the Bills of Rights in England and the

United States. (A detailed chronology follows this introduction.)

Coke’s inﬂuence was great at a pivotal moment in English and American

history. Teetering at the end of the 1500s, the Tudor England of which Coke

wrote and in which he was the master lawyer had seen the end of the feudal

order and the dawn of the commercial age. The Stuart England in which he

judged saw the adolescence of the printed book, of King James’s Bible and

Shakespeare’s plays. Moreover, it was an age in which kings sought ever more

control over the affairs of state and of individuals but in which individuals

had both new ideas about their own opportunities and new money with which

to pursue them. The conﬂicts that emerged to be solved by the law—disputes

about property, colonies, commerce, employment, bankruptcy, reputation,

natural resources, religion, taxes, crimes, representative and bureaucratic gov-

ernment, and liberty—were taking on many new dimensions.

Coke resolved those conﬂicts employing the system of law in a way that

Introductionxxiv

seemed predictable and consistent and, most important, that was, in the end,

without favoritism. He developed books that enshrined not only the results

of individual conﬂicts but also his view of the system, justifying it with a

mixture of history and reason. This view of law was a powerful tool, one that

also protected certain values of long-lasting inﬂuence, especially in the new

colonies then being cut into the forests of the Atlantic coast of North America.

In these colonies, up to and after the American Revolution, Coke’s statements

of the law, and of the law’s protection of the individual from unreasonable

claims by the King or the Parliament, were the central learning of every lawyer.

It has been more than a century since a new edition of any of Coke’s

writings has been published. More surprisingly, perhaps, there never before

has been an anthology that draws from the breadth of his printed works and

speeches as justice and parliamentarian. A great need persists for a scholarly

edition of all his works. Even so, this edition’s goal is much more modest, to

present the artifacts of Coke’s career, essentially in the printed forms by which

they inﬂuenced the course of the law, both for reappraisal and for inspiration

in considering the recurrent problems of the law.

Coke’s Life and Ideas

Edward Coke is a difﬁcult and complicated ﬁgure in history, which is un-

surprising, as he was a difﬁcult man living in a turbulent time. In his youth,

he was a brilliant lawyer but a political hack and a fawning courtier. In his

age, he was a scholarly judge and courageous statesman but a venal father. He

lived in a time, though, when the compromises of the feudal order were being

supplanted on the one hand by absolute monarchy and on the other by ex-

ploration and commerce.

Coke forged his views of law not by pondering its niceties but by ﬁghting

in its trenches. Coke early acquired a reverence for technique, research, and

the honing of a good theory of a case in litigation. He worked hard, had a

good memory, and learned the legal precedents as well as anyone ever had.

He would turn these techniques and skills to the service of his clients, for

whom he deployed a comprehensiveness and lack of reserve that could be

breathtaking. As an ambitious young lawyer from a good family (but not a

family so good as to tie him initially to the ancient landed interests) and as

a prote´ge´ of the master politician and royal adviser Lord Burghley, a self-made

Introduction xxv

man who saw his nation’s future in its economy, it is not surprising that Coke

found himself representing clients who needed new legal remedies and rules.

For Coke to argue for new results from old principles did not require him

to believe that he was pursuing change, or arguing for a grand theory, or

pursuing a legal revolution. He could merely uphold the rights of Parliament

to make law and of the court to apply its traditional principles. By doing so,

particularly when those principles included doctrines of reason and remedy,

he was pursuing his clients’ interests and harvesting “new corn from old ﬁelds,”

in the same manner lawyers had done for generations before him and for all

time since. Thus, he could accept, and promote, an idea of law that was at

once unchanging but also changing.

His early work therefore pursued a considerable degree of economic lib-

erality in the law, and it is no surprise to see Coke later arguing against mo-

nopoly, against lands tied in feudal bonds, and against restraints of trade.

Although he did not pursue the wholesale laissez-faire economic regime de-

veloped a century later, he was nearer to it than most in his age, and his reforms

of the law made its realization all the more possible.

A great lawyer with tremendous skills devoted without reservation to the

client can become a tool of tyrannical power if the client is a politician, and

as the attorney general of a queen Coke adored, he was hardly immune from

abusing his gifts. But when those same skills were turned to the protection

of his ﬁnal client, the law itself, Coke turned loose those gifts in its service.

In this way, Coke applied the same artiﬁce he early used to win property

and contract disputes when he later defended the power of Parliament and

the bench, the fount and the vessel of the law. He became a tireless advocate

of the monopoly of courts of law as the arbiters of disputes, challenging local

courts, church courts, private arbitrators, the Chancellor, and even the King.

Coke was ever loyal to James I personally, whom he sincerely called the

fountain of justice (as opposed to the fountain of law). Yet this loyalty was

not without limit, and Coke argued time and again that Parliament and the

Common Law remained the sole sources of the law and that all things must

be done by law, particularly the deﬁning of crimes, the levying of tax, and

the judgment of cases.

Moreover, the two ideas for which James I, and later Charles I, would most

persecute Coke, that judges must act not by command of the King but by

the dictates of law and that the law protects the King (as opposed to an all-

Introductionxxvi

powerful monarchy subordinate to none but God), can easily be seen in cases

he litigated and reported from the time of Elizabeth, which themselves rested

on antecedents Coke took pains to enumerate. Simply, the law was not only

the means by which the monarch received and gave property but also the tool

that protected the monarch’s interests in property. The King was powerless

to change the nature of a common-law estate in his own lands. OnlyParliament

could do that, and it could do so only in a manner the courts would accept.

In cases turning on means as varied as the common-law standards for the

deﬁnition of an interest in property, the construction of the meaning of a

statute, and the limitations and powers that accrue during judicial process,

the monarch’s interests in such cases were determined time and again by the

preexisting dictates of the law, or at least what the judges proclaimed the law

to have been. From such a stage—on which Coke acted practically without

a peer as the consummate artist of pleading, precedent, and argument—Coke

took all of the tools he would need not only to protect the Queen against her

adversaries but also to protect the courts and Parliament from the later kings.

These tools made Coke a dubious courtier. At times, he was embarrassingly

ingratiating, but at others his insistence on following his views of the law made

him so irritating to the monarch that, had he been a man less useful in so

many ways, it would have threatened his life. King James is said to have de-

scribed Coke as “like a cat: throw her which way you would, she will light

upon her feet.”

At the height of his career, Coke stood as a barrier against royal power to

dictate the outcome of the law. He argued for untrammeled discretion of the

judge to “do as a judge ought to do,” without royal command or assent. He

argued for a single set of laws, common throughout the realm, according to

which liberty and property would be reliably regulated, without the recurrent

loss of liberty that accompanied courts held as special privileges by local lords,

crown administrators, and church ofﬁcials. The law, as Coke articulated it,

protected the individual from tyrannical abuse.

This is, if nothing else, a recipe for the rule of law, of which Coke had a

full vision. He saw the rule of law as a complicated amalgam of precedent

and argument, reason that brought old laws to answer fresh questions, at least

to the practitioner who was both well-skilled in its arcane methods and rules

and well-versed in the law’s special customs and obligations. The tool most

essential to that vision was a comprehensive record of the methods and sub-

stance of the law, and this was the chief legacy of his writings.

Introduction xxvii

Coke’s Writings

English law for centuries had Year Books and scattered reports collecting cases,

statute rolls collecting Acts of Parliament, and a few treatises synthesizing them

both on particular topics, primarily the interests of nobles in land. Even so,

prior to Coke’s Reports and Institutes, no single written source of English law

had managed to strike the balance between the breadth and speciﬁcity needed

to convey the contours of a whole system of rules and the brevity and selectivity

needed to keep the system sufﬁciently manageable for use. Further, times had

changed, and traditional materials required revision to account for both new

principles of law and new forms of dispute.

Coke began collecting his private case reports early in his career, not just

recording cases he argued (with a decided preference for cases he won), but

collecting other cases by watching them, speaking with principals in the opin-

ions and arguments, and amassing a trove of others’ notes. He even sent his

students to hear arguments and to take notes for him when he couldn’t attend,

a task on which he seems often to have sent the young student and later colonist

Roger Williams. By the time he became Attorney General, the quality of his

notes, the range of his reports, and his authority as a lawyer made the Reports

an instant success.

Coke’s writings sometimes slant the bases for his case opinions, occasionally

slanting them until, in the opinion of some, his report has turned them upside

down. There are times when Coke describes precedents to support a position

that would require an unusually idiosyncratic view of the precedent, and he

notoriously accepts the authority of earlier law books, particularly the dubious

Mirror, with a blithe and credulous trust. Most obviously, for all of the reading

he did of history (and he read many books on history) Coke seems to have

had a very anachronistic eye for the past, often reading the oldest of precedents

as if they had been written in his own time, except for the authority they had

gained by virtue of their antiquity. Although this anachronistic tendency might

have weakened his merit as a legal authority, it also fanned the ﬂames of his

imaginative reinterpretations of ancient sources of law, a phenomenon that

made possible Coke’s wholesale translation of Magna Carta from the contract

protecting only the nobility into the law protecting all of the crown’s subjects.

Certainly a portion of the authority that Coke cited as a basis for his state-

ments of particular rules of law ranged from questionable to nonsensical. On

the other hand, the percentage of Coke’s statements for which this is true is

Introductionxxviii

nowhere near as high as his detractors sometimes imply; it is just enough to

color his enterprise a rather self-authenticating hue. And he did serve as his

own authentication. Given his unparalleled personal authority, Coke simply

pulled it off. Setting aside his, perhaps inevitable, removal from the bench,

it mattered little that the likes of Bacon and Ellesmere griped to the King that

Coke’s Reports misconstrued the cases or that his authorities were weak. In-

deed, it has mattered less that historians have plucked at the hem of Coke’s

gowns over his sources. The fact remained that once Coke—encyclopedia of

precedent, virtuoso of pleading, law teacher, Solicitor General, Attorney Gen-

eral, Lord Chief Justice of both of the great law benches, Speaker of the House,

and proud and incorruptible arbiter of the disputes of King and commoner

alike—said that something was the law, almost everyone agreed. In 1824, nearly

two centuries after his death, it was explained aptly. “Lord Coke,” wrote Chief

Justice William Best, often, “had no authority for what he states, but I am

afraid we should get rid of a great deal of what is considered law in Westminster

hall, if what Lord Coke says without authority is not law. He was one of the

most eminent lawyers that ever presided as a judge in any court of justice.”

Despite the complaints of those, like Lord Campbell, that Coke was ill-

read, his writings are models of prose by a well-read, well-rounded man of

his age. He sprinkles his reports with classical allusion; he is particularly fond

of Virgil. Moreover, he writes complicated fact patterns with a clarity that still

eludes some judges and reporters centuries later. He is a great coiner of ep-

igrams and maxims, and many of his lines have pith, wisdom, and humor.

Littered about the Reports and especially the Institutes are guarded asides to

law students, cautions to practitioners, and observations on the rules of the

law, some of which are still routinely quoted today. As generations of young

lawyers have learned, Coke’s prose can be complex and his organizationdiffuse,

but the rewards of careful reading are abundant.

Coke’s published works are essentially of three forms: reports, treatises, and

speeches. He published his own reports in eleven separate folio volumes, and

two appeared posthumously. (There are still more notes for reports that have

never been published.) To see the reports as the sum of his judicial works

would be to miss his many arguments as a lawyer and opinions as a judge,

some of which were reported later by others. His lengthiest project as seen

by his successor generations were his treatises, particularly the four Institutes,

which are usually bound into only three fat folios or six fatter quartos, not

including the short treatises on bail and mainprize and copyholding, and the

Introduction xxix

manual on pleading. The extant speeches, other than those reported as case

opinions, are largely in the form of records of the debates in Commons and

in the Privy Council, although the interesting charge to the jury at Norwich

falls into this category as well.

One word is in order when comparing the selections in this book to Coke’s

writings as a whole. Coke’s writings comfortably ﬁll a dozen books with big

spines and small print, and an editor choosing what not to include is like Ali

Baba in the cave of the forty thieves: there are too many treasures to carry

them all away. Although the width of this edition testiﬁes to the patience of

the publisher, many wonderful and signiﬁcant portions of Coke’s writings

remain untouched. Some of his writings are simply delightful, like his proof

that mastiffs are not dogs in a statute punishing dogs that enter the King’s

woods, or his tale of the judge who built Westminster clock as a penalty for

reducing a poor man’s ﬁne. Leaving these stories and many of the ﬁner points

of early modern common law aside has been rather painful, but those selected

stand as testament to the rich domain which this edition only surveys.

Coke’s Inﬂuence

At the distance of four centuries, it is easy to mistake the signiﬁcance of Coke’s

achievements. One might overestimate Coke’s contributions by missing the

signiﬁcance in his work of such predecessors as Fortescue, Bracton, and earlier

judges, or such allies as Selden and Davies, or such adversaries as Ellesmere

and Bacon. It is likewise easy to underestimate Coke’s contributions by seeing

them as but an articulation of principles that were rarely in doubt or by simply

failing to notice their signiﬁcance, breadth, or novelty.

The arena in which such mistakes are especially regrettable is in appraising

Coke’s contribution to the modern notion of the rule of law. A controversial

and multifaceted notion, the rule of law can be thought of as the idea that

no person or group controls the state but that laws are applied to everyone

equally and fairly by impartial and independent people who are themselves

bound by the laws to do so.

Although it dates from classical Greece, the idea of the rule of law made

slow headway in a world personally governed by emperors, popes, and kings.

Of course, the compromises among king, lord, and peasant necessary to main-

tain the feudal order were enshrined in law, but such laws were dependent on

an uneasy balance of power and could guarantee neither the stability necessary

Introductionxxx

for justice and predictability nor the mutability necessary for economic change

and adaptability. Such a guaranty requires a relatively stable body of laws,

sufﬁciently comprehensive to resolve the complicated questions of human

dispute. It also requires methods for determining the existence of those laws

and determining precisely which requirements of law govern a particular dis-

pute. It requires tools for enforcing such a determination without regard to

the status of the disputants, the biases of the judge, or other factors beyond

the dispute and the rules. Last, it requires a near-monopoly of those rules

as the source of resolution of disputes. Some of these requirements are terribly

problematic, such as determining when a judge acts from bias, what laws may

accord status, or what status may not be accorded by laws. Neither those

problems nor occasional lapses alter the general requirements of the rule of

law, and these requirements were each pursued quite deliberately by Coke.

The inﬂuence of this idea of law was in every sense revolutionary, especially

in the new balance it struck between monarch and subject. Indeed, notions

of a legally limited monarch and of common subjects who held rights, which

were, thanks to Coke, now deemed to have existed since Magna Carta, and

the idea of a legal machinery independent of all but the authority of the nation’s

legislature are nearly inextricable from the other causes of the English Civil

War, of the American Revolution, and of the American Civil War.

Coke was sponsor or author of many ideas that are now embedded in the

structure of the law. England has applied Coke’s reports and acknowledged

his lessons, and he deeply inﬂuenced such writers as Blackstone and Stephen,

judges such as Lord Eldon and Lord Denning, and policymakers such as Ed-

mund Burke. He is regularly cited still, and recent surveys of judicial databases

yield surprisingly thick lists of citations to Coke’s writings from the benches

of the common-law world. (A few American citations are listed in the bib-

liography in volume three.) In all, though, judicial reaction in England and

America, centuries after Coke, is now rather like the American response to

the writings of Joseph Story; that is, he remains an important ﬁgure in the

development of the law, whose works are authoritative but not conclusive in

arguing for the meaning of ideas and laws.

There are, however, wider circles in the intellectual pool through which

Coke’s ideas still ripple. Milton and, later, Locke and Montesquieu argued

for the protection of the citizen through orderly laws that are independent of

the raw power of monarch or parliament. Likewise, Fuller’s independence of

the law from the church, Harrington’s legal limits on the aristocracy, Hobbes’s

Introduction xxxi

practical view of the state, and Smith’s commerce free from oppressive laws

are seen by many commentators today as then-novel ideas. Yet these arguments

essentially traveled on roads that had been surveyed by Coke. Some, particu-

larly Thomas Hobbes, could hardly have written their greatest works but for

Coke’s antecedent writing, even if it served mainly to focus their objections.

Writers of philosophical treatises strive to present a comprehensive system,

designed to minimize contradiction in a single exposition. By contrast Coke

wrote over a long period, encompassing numerous discrete questions, and the

whole of his writings present ambiguities and contradictions in a corpus that

was not designed on philosophical lines. Simply, Coke was not a philosopher

but a lawyer. His works were somewhat inaccessible to the reader who was

neither well-skilled in the language of the law nor prepared to become im-

mersed in its study. All of that said, Coke’s inﬂuence on the political philos-

ophers of the seventeenth and eighteenth centuries, who generally learned the

law through his writings, was substantial, and they often acknowledged their

debts to him.

His inﬂuence on the practical affairs of law and state was rather more direct

in America through her colonists, the likes of Roger Williams, James Otis,

John Adams, James Madison, George Wythe, Thomas Jefferson, and John

Marshall. From Coke, Americans took not abstract notions of government

but the tools of law, among them tools of substance—citizens’ rights against

the state, common law supremacy over local law, legal protections of property

from state invasion, limits on monopoly and restraints of trade, the right to

habeas corpus, and the right to limit the burdens of taxes and criminal sanc-

tions to those that are enacted only by the people’s representatives—and tools

of process—judicial independence, judicial review of statutes, judicial review

of administrative ofﬁcials, and judicial impeachment for favoritism or bribery.

Americans also acquired the habit of case reporting, treatise writing, and stat-

utory inventory, eventually building a vast body of written and accessible law.

Aristotle’s government of laws rather than men was given a practical foun-

dation by Coke’s writings and by a career in which, as Maitland said, “The

Common Law took ﬂesh.” He was an incorruptible judge, a lawyer dedicated

to the integrity of law, whose personal authority and legal acumen forever

altered the nature of the Common Law.

Chronology of Events

Material to the Life, Times, Writings, and Legacy of

Sir Edward Coke from the Death of Henry VIII to the

Opinion in Marbury v. Madison

38 Hen. 8; 1 Edw. 6

January 28, 1547 Henry VIII dies; Edward VI becomes King.

February 1, 1552 Edward Coke is born, to Robert Coke, of Lincoln’s

Inn, and Winifred Coke (ne´e Knightley), in

Mileham, Norfolk. He later said that his birth

occurred so suddenly that his mother delivered him

on the hearth and not in her bed.

July 6, 1553 Edward VI dies.

July 10, 1553 Lady Jane Grey proclaimed Queen.

1 Mar.; 1&2 Phil. & M.

August 3, 1553 Mary Tudor, a Catholic, proclaimed Queen; Lady

Jane is sent to the Tower.

October 1, 1553 Mary crowned Queen.

November 17, 1558 Mary dies. Elizabeth, a Protestant, is pronounced

Queen.

1 Eliz.

January 15, 1559 Elizabeth I is crowned Queen.

1561 Robert Coke, Edward’s father, dies. Edward is nine.

1561(?)–67 Coke attends the Norwich free school, studying with

Mr. Walter Hawe.

Chronology of Eventsxxxiv

October 25, 1567 Coke matriculates at Trinity College, Cambridge; he

may have been tutored by Whitgift, Archbishop of

Canterbury.

1569 Winifred Coke, Edward’s mother, dies.

December? 1570 Coke goes down from Cambridge without an earned

degree. An M.A. would later be conferred by grace

of the university.

January 21, 1571 Coke enters Clifford’s Inn, London.

April 24, 1572 Coke enters Inner Temple as a student of law; he

gains particular attention in The Cook’s Case,

argued on the quality of food served in the Inn.

April 20, 1578 Coke is called to the bar, a year early under the rules

of the Inns.

1579 Coke defends a vicar, Mr. Denny, from Lord

Cromwell in an action for libel based on a religious

dispute and Denny’s statement that Cromwell, who

hired preachers who abjured the queen’s Prayer

Book, “like of men who maintain sedition against

the Queen’s proceedings.” Coke wins an arrest of

judgment by spotting a pleading by his opponent

based on a faulty translation into English of a

statute. See The Lord Cromwell’s Case, p. 105.

1579–81 Coke is counsel in Shelley’s Case, argued by order of

Elizabeth I before the Lord Chancellor and all the

judges of the realm. The case turns on whether land

can be bound up by granting the land to a person

for life, with a remainder to that person’s heirs.

Coke argued successfully that such a limitation

ought to be construed to create a single perpetual

estate, a fee simple absolute, for the person receiving

the land. This allowed the recipient and subsequent

grantees greater ability to transfer the land. See

Shelley’s Case, p. 6.

Chronology of Events xxxv

1579–85 Coke appears as junior barrister in numerous cases

under Edmund Plowden and John Popham. He

keeps a private notebook with transcriptions of cases

earlier reported in manuscripts, a commonplace

book, and notes of his own professional and

personal life; in time, this notebook will serve as the

basis for his Reports.

1580–83 Coke appointed Reader, or lecturer, of Lyon’s Inn;

this appointment is extraordinary, as it usually is

made to men ten years or more his senior.

1580–85 Coke purchases manors throughout Norfolk, raising

concerns he is monopolizing the whole land market

there. He is said to have been allowed by the Crown

to purchase only “one acre more” with which he

purchases an estate named “Castle Acre,” which had

as much acreage as he had earlier possessed.

1582 Coke circulates a manuscript of his report of

Shelley’s Case.

August 13, 1582 Edward Coke marries Bridget Paston, the “ﬁrst and

best wife,” whose dowry was £30,000; they would

have ten children and happily reside in Huntingﬁeld

Hall, Suffolk. Throughout their marriage, Coke

would commute from his house in Castle Yard to

Huntingﬁeld between terms.

1582 London municipal water is ﬁrst moved in the city by

mechanical pumps.

1583 Coke defends Lacey for murder.

1584 Coke ﬁrst serves as justice of the peace on the

Norfolk Commission of the Peace; he is reappointed

in 1586, 1588, and 1591.

Coke defends Flemming for unorthodox baptism,

having the indictment dismissed for failing to state

its relationship to an earlier conviction, raising the

Chronology of Eventsxxxvi

chance of double jeopardy. However, he loses a case

for a copyholder, despite his arguments from history

and pleading requirements.

1585 Coke successfully argues that the Queen’s grant of

an abbey did not also grant a dependent rectory

because the general language of the abbey grant was

technically insufﬁcient to grant the rectory as a

portion of the abbey.

Coke elected Recorder, a part-time judge, of

Coventry.

1585–90 Edward becomes a prote´ge´ of William Cecil, Lord

Burghley, Elizabeth’s Lord Treasurer and great

counselor.

April 2, 1586 Coke elected Recorder of Norwich.

1586 Coke represents the Register of the Court of

Admiralty in a suit for proceeds from the ofﬁce of

the co-Register. He represents the Vicar of Pancras,

arguing against a prohibition of a dispute in the

Spiritual Court for the payment of tithes. He

appeals a partition of property that fails to specify

either the statutory basis of the partition or the

nature of the estate by which the lands were held.

1587 Christopher Marlowe’s play Tamburlaine the Great is

performed, establishing blank verse as the medium

of choice on the stage.

Coke argues Sir Thomas Gresham’s Case, on behalf

of Lady Gresham, whom he saves from having to

pay a ﬁne for alienating a use. He also argues

Cooper’s Case, an action for the killing of eighteen

rabbits.

Chronology of Events xxxvii

April 5, 1588 Thomas Hobbes born.

1588–90 Coke begins careful note-taking of a wide range of

cases argued by both himself and others, as well as

collecting information for reports of unreported

cases. By 1591, he appears to have intended to

publish his reports, the ﬁrst of which would appear

in print in 1600.

1589 Coke attends Parliament as a burgess for Aldburgh,

Suffolk.

Coke wins Read and Nash’s Case, another case

involving the Greshams, and The Lord Paget’s Case,

both of which are cases on the regulation of uses, by

which lands could be held by one person for the

beneﬁt of another. He loses an unusual case with

implications for corporations, in which church

wardens sue for the theft of the church bell

committed before their tenure, a detail that required

Coke to win a difﬁcult argument, but he lost when

the court decreed that later wardens must consider

the loss to be to the parishioners, not to themselves.

William Lee invents a knitting machine, allowing

mass textile production.

1590 (est.) The microscope is invented.

1590 Coke defends Guildford, who is charged with the

crime of recruiting for the Roman church, securing

his release because the charge was brought too late.

Coke is made Bencher, or a senior lawyer, of the

Inner Temple.

October 14, 1591 Coke is unanimously elected Recorder of London,

voted £100 pension; he will serve as Recorder only

until June of 1592.

Chronology of Eventsxxxviii

1591 Coke invents a defense plea to confess and avoid a

plaintiff’s title, which is useful in claiming that the

defendant is the rightful occupant of property, even

though the plaintiff might have a legal right to

own it.

1592 Coke is appointed Reader, or lecturer on law, by the

benchers of Inner Temple; he lectures particularly on

uses. His lectures would be cut short by an

evacuation to escape the plague.

June 11, 1592 On the recommendation of Burghley, Elizabeth I

appoints Coke Solicitor General. At the time of his

appointment, Coke is chastised by Elizabeth for

bringing arguments against her interests in taking

estates by escheat, to which he tearfully responds,

assuring her of his loyalty to her.

1593 The freeholders of Norfolk elect Coke a member of

Commons “unanimous, free, and spontaneous,

without any solicitation on my part.”

February 19, 1593 Coke is elected Speaker of the House of Commons;

his opening address as Speaker both recites an

ancient tradition of strong monarchical authority

and, according to the new custom, asks for freedom

of speech in Commons. He is a loyal lieutenant to

the Queen throughout the session, burying a bill on

reformation of the ecclesiastical courts but delivering

up large new subsidies, or taxes, although he did

much to protect Parliament’s “ancient” rights. See

Coke’s speeches, p. 1187.

April 10, 1593 Parliament is dissolved; Coke gives a speech on the

antiquity of Parliament, extolling its obedience to

the sovereign. See p. 1191.

June 1593 Christopher Marlowe dies.

April 1594 Thomas Egerton is made Master of the Rolls,

vacating the ofﬁce of Attorney General. Coke and

Chronology of Events xxxix

Francis Bacon both seek the post. Coke is opposed

by the Earl of Essex, the Queen’s favorite and a

sponsor of Bacon’s. Coke is favored by Burghley.

This is the period of Bacon’s and Coke’s ﬁrst great

rivalry; Bacon refers to Coke as “the Huddler.”

April 10, 1594 Coke is made Attorney General. Although Coke

believes the appointment is the result of Burghley’s

patronage, he is likely to have been the Queen’s own

choice. Coke obstructs Bacon’s appointment as

Solicitor General, performing the duties of both

ofﬁces for over a year.

1594–95 Romeo and Juliet is ﬁrst performed.

1595 Attorney General Coke argues for the power of the

church court called the High Commission in

Cawdrey’s Case, in which a priest was barred from

preaching. The power of the Commission to employ

the penalty for a ﬁrst offense is upheld, although the

penalty had been allowed under the statute only for

repeat offenses. Coke’s precedent-laden report of the

opinion would serve as a basis for asserting royal

jurisdiction over all questions of church law. The

precedents of this report were strongly attacked by

the Jesuit Robert Parsons at the time, and Coke

would have his own arguments with the

Commission in later years. He also argues a

prohibition to assess the tithes owed a rector when a

vicar changed the crops in a ﬁeld from corn to

saffron.

1595–1603 Religious dissent from Catholics and Puritan non-

conformists grows. Coke leads efforts to suppress

pamphlets, attributed to the Jesuit Robert Parsons,

promoting the Infanta of Spain as Elizabeth’s

successor.

Chronology of Eventsxl

Elizabeth’s court is plagued by assassination plots,

real and rumored. Coke oversees numerous

interrogations of defendants, some under torture in

prison, some in court, beginning with the trial of a

Spanish spy, Elizabeth’s physician Roderigo Lopez,

for conspiring to kill her.

1596 Coke, as Attorney General, represents the

Archbishop of Canterbury, successfully defending

him against a prohibition seeking to end tithes owed

on lands taken by the Crown in the dissolution of

the monasteries. See The Archbishop of

Canterbury’s Case, p. 49.

Coke is elected Treasurer of the Inner Temple.

1597 Francis Bacon ﬁrst publishes his Essayes. The ﬁrst

book of ten will be enlarged in subsequent editions

to thirty-eight, in The Essaies of Sr Francis Bacon

Knight (1613), and to ﬁfty-eight, in The Essayes or

Counsels, Civill and Morall (1625).

June 27, 1598 Bridget Coke dies, aged 34.

August 1598 Coke courts Lady Elizabeth Hatton, granddaughter

of Burghley, the widow of the nephew and heir of

Lord Chancellor Hatton. Bacon is also a suitor for

her, being promoted to her by Essex. Coke proposes

to her at Burghley’s funeral and is accepted, thanks

to support for him from her father Thomas Cecil,

the new Lord Burghley, and her uncle, Robert Cecil.

November 7, 1598 Coke, aged 50, and Lady Elizabeth, aged 20, are

married, “a strange match, and which seemed to

afford more amusement to bystanders than comfort

to the parties concerned.” They are married secretly,

violating a church canon against marriages in private

houses or without a license or the publication of

banns. Archbishop Whitgift moves to

Chronology of Events xli

excommunicate Edward, Lady Elizabeth, the second

Lord Burghley, and the rector who married them.

Edward petitions for a dispensation, which is

granted on account of Coke’s “ignorance of the

ecclesiastical law.”

August 23, 1599 Frances Coke, the ﬁrst daughter of Coke and Lady

Elizabeth, is born, ten months after their marriage,

despite false rumors that Lady Elizabeth was

pregnant before her wedding. Queen Elizabeth I is

Frances’s godmother.

1599 Edmund Spenser, the poet and author of The Faerie

Queene, dies, aged 47.

1600 or 1601 First performances of Julius Caesar and of Hamlet.

Summer 1600 Coke argues and wins The Case of Alton Woods,

winning a large estate for the Queen, using very

technical rules of inheritance and property law, but

arguing for a narrow understanding of the estate tail,

which would help tie lands up in families and

diminish the free trade in lands.

June 1600 The Queen’s former favorite, Robert Devereux,

Second Earl of Essex, is tried before a special

commission following his disastrous attempt to quell

a rebellion in Ireland, capped by his making a

private truce with the rebel leader, although his real

crime was to disobey the Queen in a secret marriage

to one of her maids of honor. Essex is conﬁned to

his house and then deprived of most of his honors.

He loses the Queen’s favor and ﬁnancial support

and, apparently, becomes deranged.

1600 The ﬁrst volume of Les Reports de Edward Coke is

published by T. Wight. See p. 3.

February 9, 1601 Believing his life endangered following an attack on

his friend Henry Wrothesley, Earl of Southampton,

Essex accelerates a variety of conspiracies, which

Chronology of Eventsxlii

amount to rebellion. He locks four members of the

Privy Council in his house and attempts to rally

Londoners to assault the Queen’s guard, resulting in

a few small riots that end when Thomas Cecil

denounces him as a traitor. Essex is arrested the next

day.

February 19, 1601 Coke prosecutes Essex and Southampton for

insurrection. Coke employs savage oratory against

the defendants during the trial. Essex is convicted

and, on February 25, executed. Southampton is

convicted, but his sentence is later commuted to life

in prison.

March 1601 Coke prosecutes other conspirators in the Essex

rebellion.

1601 Bacon issues a book on Essex, A Declaration of the

Practices & Treasons Attempted and Committed by

Robert, Late Earle of Essex (1601), which he would

later repudiate in large part in Sir Francis Bacon His

Apologie, in Certaine Imputations Concerning the Late

Earle of Essex (1604).

Coke prosecutes Twyne’s Case, bringing a criminal

action against a debtor who commits a fraudulent

conveyance to prefer one creditor over another.

1601–10 Coke grows more aloof from the bar; his

professional rivalry with Francis Bacon, K.C., grows

more intense.

August 1601 Elizabeth I visits Coke at his house in Stoke. He

presents her with jewels and gifts worth over £1,000.

1602 Le Second Part des Reportes del Edward Coke and Le

Tierce Part des Reportes are published by T. Wight.

See pp. 37; 58.

Chronology of Events xliii

1 Jac.

March 24, 1603 Elizabeth I dies. James VI of Scotland is proclaimed

also as James I of England.

May 22, 1603 Edward Coke is knighted. In the months that

follow, his wife Lady Elizabeth becomes a conﬁdant

of the new Queen, Anne.

Spring 1603 A Catholic plot forms to capture King James and to

demand concessions for recusants. The plot includes

Lord Cobham, a friend of Sir Walter Raleigh, whom

Cobham, after his arrest, implicates in the plot,

although Cobham later recants his claim.

July 25, 1603 James VI is crowned James I.

1603 James publishes a manifesto for his rule, Trewe

Lawes of Free Monarchies (or, “True Laws of Free

Monarchies”).

Thomas Bodley opens the restored library of the

Duke Humfrey in Oxford, which in 1610 will

become a repository of all copyrighted books in the

realm.

1603–5 English deforestation drives lumber prices too high

to use wood for industrial fuel, promoting the

industrial use of coal.

Summer 1603 London is in the grip of the plague.

November 17, 1603 Coke’s nadir. He prosecutes Sir Walter Raleigh for

treason, employing disgraceful invective and unfair

tactics, which later contribute to the stay of

Raleigh’s execution. Raleigh is imprisoned in the

Tower until 1616, when he is released to prosecute a

gold-stealing expedition against Spanish Guyana. It

is a politically embarrassing failure, and James in

1618 would enforce the suspended death warrant,

and Raleigh would be executed.

Chronology of Eventsxliv

1604 The fourth volume of the Reports is published by

T. Wight. See p. 93.

Othello is ﬁrst performed.

1605 The ﬁfth volume of the Reports is published by the

Companie of Stationers. See p. 125.

Argument of the Articuli Cleri. Archbishop Bancroft

calls the law judges to answer for prohibitions

against the Church. While the written answers are

attributed to the law judges, the hand of Attorney

General Coke may well have guided their pen.

El Ingenioso Hidalgo Don Quixote de la Mancha, the

ﬁrst part of Cervantes’s masterpiece, with its ironic

but profound homage to the ideals of feudal knight

errantry, is published in Spain; it reaches England in

translation in 1612.

John Cowell publishes his treatise on English law

based on Roman law, Institutiones Juris Anglicani ad

Methodum Institutionum Justiniani.

Orlando Gibbons becomes organist of the Chapel

Royal.

November 4, 1605 Outside a cellar under the House of Lords, Guy

Fawkes is discovered with a slow match and thirty-

six barrels of gunpowder, intending to blow up

Parliament during James’s state opening on

November 5. Sir Robert Catesby has devised the

plot, carried out with six Roman Catholic

conspirators.

January 27, 1606 Coke examines and prosecutes Fawkes, Catesby, and

the other Gunpowder plotters; although he develops

the clear evidence of their guilt, he also is, again,

unusually cruel. They are all executed.

Chronology of Events xlv

1606 A. Islip for the Companie of Stationers publishes a

table summarizing the ﬁrst ﬁve volumes of the

Reports. A series of updates will follow, culminating

in this series in Fasiculus ﬂorum, Or a Handfull of

Flowers Gathered out of the Severall Bookes of Sir E.

Coke in 1618.

Ben Jonson’s comedy Volpone is ﬁrst performed.

Australia is discovered, by the Dutch.

In Bates’s Case, Coke and Chief Justice Popham

uphold the power of the King to slap a tariff on

imported currants, upholding the opinion of the

Barons of Exchequer that the King could regulate

trade only if the regulation was in the public

interest; this is an opinion that Coke would later

regret. See p. 441.

March 28, 1606 Trial of Henry Garnett, English Superior of the

Jesuits, for concealing the Gunpowder Plot. Coke

prosecutes. Garnett confesses to knowing of the plot

under the seal of confession. Based largely on

testimony from jail-house spies, Garnett is convicted

of misprision of treason and executed.

March–April 1606 Coke assists Popham in drafting the First Royal

Charter of the new Virginia Company, a charter that

assures that British subjects in the colony and their

children born there “shall have and enjoy all

Liberties, Franchises, and Immunities, within any of

our other Dominions, to all Intents and Purposes, as

if they had been abiding and born, within this our

Realm of England, or any other of our said

Dominions.” This promise is renewed in the Charter

of 1609 and later charters.

June 20, 1606 Coke is created Serjeant at Law, an honoriﬁc granted

by the Crown, which was necessary to serve as a

Chronology of Eventsxlvi

senior judge. The memorial rings he had engraved

to give to senior lawyers are inscribed Lex est

tutissima cassis, or “Law is the safest helmet,” an

abbreviation for a whole maxim: “Law is the safest

helmet; under the shield of law no one is deceived.”

Coke is made Chief Justice of the Court of

Common Pleas, on the same day he is created

Serjeant.

August 4, 1606 Coke presides at the Assizes at Norwich. He charges

jury to punish corrupt ofﬁcials. See p. 521.

1607 Sir Moyle Finch’s Case is apparently Coke’s ﬁrst

case as Chief Justice.

Coke assists the Chancellor in settling the rights of

Prince Henry to manors in the Duchy of Cornwall,

taking the manors from the grantees who had been

given them in fee by Elizabeth. Coke had brought

the case as Attorney General.

The sixth volume of the Reports is published by the

Companie of Stationers. See p. 149.

John Smith leads 120 colonists to settle Virginia.

1607–8 Coke begins judicial battles with the church court

called the High Commission, which punishes crimes

against church obedience: Prosecutions in the

Commission had been stopped by prohibitions from

the common law courts. Coke rules that the

Commission is limited to ecclesiastical matters and

can be prohibited by the law courts from

disciplining a lawyer who argued before the

Commission, who had applied to the law courts for

a prohibition. See High Commission, p. 425,

Chronology of Events xlvii

Langdale’s Case, p. 471, Nicholas Fuller’s Case,

p. 454, Premunire, p. 447.

1607–12 In a series of cases, Coke and the judges of

Common Pleas rule that the Court of High

Commission has no authority to arrest laymen and

that a layman who resists arrest by a pursuivant, an

ofﬁcial of the Commission, and kills him is not

guilty of murder. They issue prohibitions against the

Commission, enjoining them from imprisoning

people, and they grant release by habeas corpus to

others. See Anthony Roper’s Case, p. 461, Case de

Modo Decimandi, p. 505; High Commission, p. 425.

Similar orders are entered against a variety of local

courts, particularly that in York, for exceeding their

jurisdiction or deciding cases without giving the

degree of legal protection required. These

prohibitions will set the law courts on a political

collision course not only with the church and nobles

but also with the King, who was pleased by the

absolutist doctrines of the church courts and whose

courtiers controlled the local courts.

1608 A Parliamentary commission assigned in 1603 to

determine the rights in England of a Scot born after

James’s kingship in England fails to resolve the

question, and a test case is created by Parliament to

resolve the issue in the courts. In Calvin’s Case, or

the Case of the “Post Nati,” Coke, with a large

majority, accepts the King’s view and agrees that

Scots born after the accession of James VI as James I

of England are born subject to the same sovereign

and so entitled to the privileges of native English

subjects. This case would have far-reaching effects as

the basis for extending the law over colonial

subjects. See p. 166.

Chronology of Eventsxlviii

Prompted largely by the signiﬁcance of Calvin’s

Case, Coke prepares the seventh volume of the

Reports, which is published by the Companie of

Stationers. See p. 161.

November 10, 1608

In response to the Archbishop of Canterbury’s

complaint to the King of the prohibitions of the

High Commission, James moves to resolve the case

himself. Coke both defends his answer in Fuller’s

Case and argues against the King’s acting as a judge

of law. Moving from a traditional rationale for such

prohibitions that the law judges are agents of the

King, Coke asserts that the law is itself the essential

measure of such cases and that judges, not the King,

interpret the law, which is not based on reason in

general but based on the artiﬁcial reason of past

cases applied by legal custom. In response to Coke’s

statements a furious James nearly strikes him; Coke

falls on all fours and begs his pardon, and Cecil, the

Lord Treasurer, intervenes to distract the King. See

Prohibitions del Roy, p. 478.

November 24 and

26, 1608

Nicholas Fuller’s cause is heard by the King’s Bench,

which ﬁnds him guilty of schism; he is ﬁned and

imprisoned for nine weeks. See p. 454.

December 9, 1608 John Milton is born.

February 1609 Coke is summoned by the King to explain the ﬁfty

or sixty prohibitions entered against the court of the

President of York, about which the King “had

conceived great displeasure.” Coke describes the legal

1. The reader is cautioned as to the reliability of speciﬁc dates for conferences and hearings, particularly

from 1608 to 1613. The ofﬁcial records often conﬂict; for that matter, so do private accounts and secondary

sources. Most dates are recorded here relying on Coke’s notebook entries.

Chronology of Events xlix

inﬁrmities of three or four representative cases,

apparently to James’s satisfaction. See Prohibitions,

p. 501. Later that year, he appears to have been

called again to a second conference on the same

question.

May–July 1609 The King holds a conference of all the judges and

the Privy Council on the jurisdiction of the church

court of High Commission and law courts. The

particular object of the debate is over the exaction of

the modus decimandi, a special form of tithe, or

customary tax paid to the church, and the question

is whether jurisdiction to enforce this payment is to

be in the church courts or the law courts, Coke

arguing that only Parliament could put them

elsewhere. The debate rages over several meetings,

Coke convincing James that the High Commission

should rule only on serious offences of church law.

See de Modo Decimandi, p. 505.

1609 In Italy, Galileo Galilei develops an improved

telescope for measuring heavenly movement.

February 9, 1610 Parliament is in session. Coke is Chief Justice, and

so an ex ofﬁcio adviser to the Lords, but is not

active.

1610 Coke rules that a prohibition should not be given to

a party after a ruling has been made in the Spiritual

Court.

July 7, 1610 Parliament sends an address to the Crown, noting

that James’s Royal proclamations had affected the

liberty and property of subjects and had changed

laws and penalties. James agrees to sign a law

forbidding new impositions by the Crown without

the consent of Parliament.

Chronology of Eventsl

September 20, 1610 Coke is summoned to the Council by the King to

declare whether the King by proclamation can

restrict building in London or regulate the trade in

starch, necessary for ruffed collars. In one of his

most signiﬁcant attacks on the royal prerogative,

Coke, with Chief Justice Fleming, Chief Baron

Tanﬁeld, and Baron Altham, refuses to answer

without consulting other judges, after which he

issues an opinion admitting the King may require

subjects to obey the law but cannot extend his

prerogative beyond its legal bounds, cannot create

new crimes, and cannot enlarge the criminal

jurisdiction of Star Chamber. See Proclamations,

p. 486.

Fall 1610 The Royal College of Physicians ﬁnes Thomas

Bonham, a Cambridge medical graduate, for

practicing medicine near London without a license

from them to do so. The College arrests and jails

him when he does not pay the ﬁne and continues to

practice. Coke, with Judges Warburton and Daniel,

rules that the College could not enforce a monopoly

by acting as judge in a case to which it is a party. In

discussing the power of the College under its

Parliamentary authority, Coke makes one of his

most famous statements, “The common law will

control Acts of Parliament, and sometimes adjudge

them utterly void; for when an Act of Parliament is

against common right and reason, or repugnant, or

impossible to be performed, the common law will

control it and adjudge such Act to be void.” See

Dr. Bonham’s Case, p. 264.

1610–15 Despite the King’s exasperation, his respect for Coke

remains strong. Coke becomes a friend and mentor

to Prince Charles.

1611 The Parliament is ﬁnally dissolved on February 9, 1611.

Chronology of Events li

The eighth volume of the Reports is published by the

Companie of Stationers. See p. 244.

William Byrd publishes his last work, Psalmes, Songs,

and Sonnets.

In an effort by the new Archbishop and the King to

mute Coke’s criticism of the High Commission,

Coke is appointed to a newly reorganized High

Commission. In an October meeting of the

Commission, however, Coke refuses to sit with it,

claiming not to have seen the articles for the new

body, pleading ignorance of what the Commission

does and arguing it was a problem not for the Court

of Common Pleas but for the King’s Bench. While

nothing is resolved that day, the matter seems not to

have been further pressed by either side. See High

Commission, Appendix I, p. 1307.

The authorized edition of the Bible, often called the

King James Version, is published.

April 1611 Archbishop Abbot is installed as the new Archbishop

of Canterbury.

1612 Coke prohibits extra-jurisdictional proceedings by

the Lord President of Wales and by the Lord

President of the North, and he reverses attempts in

the Court of Marshalsea to act beyond its

jurisdiction. He also prohibits the Archbishop of

York from suing for a debt in the Court of

Exchequer at York.

May 24, 1612 Robert Cecil, Earl of Salisbury, Lord Treasurer,

Secretary of State, and Master of Wards, and Coke’s

friend and supporter, dies. A series of maneuvers in

the royal court, in which Bacon moves sharply

against Coke, follow over the next year.

Chronology of Eventslii

1613 The ninth part of the Reports is published by the

Companie of Stationers. See p. 287.

Coke is made a member of the Privy Council.

October 25, 1613 James acts on Bacon’s advice to reduce Chief Justice

Coke’s income and power by a promotion to the

superior but less signiﬁcant Court of the King’s

Bench, a nominal promotion but actually an attempt

to silence him. Attorney General Hobart is

promoted to Chief Justice of the Court of Common

Pleas, and Bacon becomes Attorney General.

1614 Coke’s oldest son, Robert, marries Lady Theophila

Berkeley.

Chief Justice Hobart rules, in Day v. Savage,

“Because even an Act of Parliament, made against

natural equity, as to make a man Judge in his own

case, is void in itself, for Jura nature sunt

immutabilia, and they are leges legum.”

The “Addled Parliament” begins session, but the

assembly is heavy with Puritans and lasts only a few

weeks before being dismissed, accomplishing

nothing.

James, short of funds without a Parliamentary grant

of supply, demands “benevolences,” or gifts of

money from the great men. Coke gives an unusually

large amount, £200. Coke writes that benevolences

are not illegal because they are not taxes but

offerings of free will. See Exaction of Benevolence,

p. 496.

Bacon prosecutes Peacham, an old clergyman, for

treason, on the basis of a drafted but undelivered

sermon found by agents who broke into his house.

The sermon held that subjects may, in rare

circumstances, resist a sovereign attempting to

Chronology of Events liii

subvert their liberties. Peacham refused to confess

treason, despite torture on the rack. Bacon seeks

from Coke an opinion on the legality of the charge,

prior to the trial. Coke refuses to give an opinion

that does not follow the forms of argument,

conference, and vote of the bench, and when his

view is ﬁnally given, he decides (much to Bacon’s

shock) that Peacham has not committed high

treason. At a trial six months later before a hostile

bench, Peacham is found guilty, although his

execution is not carried out, and he dies in prison.

Coke publishes his Book of Entries, a collection of

forms for pleading. See p. 567.

John Selden publishes his ﬁrst major book, Titles of

Honour.

The tenth part of the Reports is published by the

Companie of Stationers. See p. 326.

Cambridge University elects Coke to be High

Steward, an honorary ofﬁce.

James meets George Villiers, later the Duke of

Buckingham, who would become the King’s

favorite, perhaps his private consort, effectively

controlling patronage and royal authority for both

James and, later, Charles I. Buckingham’s inﬂuence

was necessary for anyone in Court to advance in

title; his inﬂuence would lead to several disastrous

wars with Spain and France and to the fall from

popularity of Charles with the people and nobility,

and would hasten the English Civil War.

1615 Coke rules that the Common Law makes treason of

suggesting the murder of the King.

The eleventh part of the Reports, the last volume of

the Reports to be published while Coke lived, is

published by the Companie of Stationers. See p. 384.

Chronology of Eventsliv

1616 Sir Thomas Overbury is murdered by agents of his

wife. James seeks to shield the murderers, the

Countess of Essex and Robert Carr, James I’s former

favorite and Earl of Somerset. Coke examines over

300 witnesses, proving Essex and Somerset had

instigated the poisoning. Although his prosecution is

universally praised, rumors circulate that he has also

discovered evidence of other crimes and suspicious

events, including the death in 1612 of Henry, Prince

of Wales, rumors fanned by Coke’s dismissal the

next year.

Captain James Smith, the leader of the Virginia

Colony at Jamestown, publishes A Description of

New England. Besides the regular run, Smith

specially prints two copies with presentation title

pages, one copy for Ellesmere and one “For the

Right Honorable Sir Edward Coke, Lord Chiefe

Justice of England.”

Ben Jonson writes Underwoods, including an homage

to Coke (at LXV), who of all the King’s servants

there were none “whom fortune aided less nor virtue

more,” when “being the stranger’s help and the poor

man’s aid, Thy just defenses made th’ oppressor

afraid.”

Ellesmere, the Lord Chancellor, grants an injunction

against a judgment obtained by fraud from the

King’s Bench. Coke seeks to have the party who was

enjoined from his judgment bring an indictment for

the crime of praemunire (improperly using church

procedures) against the original defendant. The

grand jury refuses to indict.

James asserts the power to grant commendams,

temporary church appointments that have revenues

assigned to bishops.

Chronology of Events lv

April 1616 Deaths of William Shakespeare and Miguel de

Cervantes Saavedra.

April 25, 1616 Bacon acts for James to assert the prerogative of Rege

inconsulto, that he has the power to advise judges

before they rule, and orders them to stay their

judgment until he advises them. Coke and the

judges rule, sending a letter to James that they must

do the law, and that they did it.

June 6, 1616 James summons the bench and condemns them all

for allowing lawyers’ insolence in questioning his

power. All twelve, including Coke, fall to their knees

and beg his pardon, but in Coke’s ﬁnest hour, he

refuses to admit that the King had a prerogative to

command him to stay the proceedings, which would

violate his oath as judge. Bacon and Ellesmere argue

that Coke was obliged to wait on the King’s counsel,

a point the other law judges concede. Abandoned by

his fellow judges, Coke answers that his obligation is

“to do that which shall be ﬁt for a judge to do.”

James suggests that what the judge should do is to

know and administer the ancient law, an injunction

that well describes Coke’s later project of the

Institutes. See Commendams and the King’s

Displeasure, p. 1310.

June 20, 1616 James I rules the Chancellor has jurisdiction for the

injunction over the law courts.

Mid-June 1616 Coke denies Buckingham, the royal favorite, the

power to assign a new holder as the ofﬁce of chief

clerk in the Court of Common Pleas, keeping the

position for judicial assignment.

June 26, 1616 Coke is summoned to the Privy Council and

charged with various offenses, including failing to

pay a debt to the Crown he accepted from his

father-in-law, Christopher Hatton, extending his

Chronology of Eventslvi

jurisdiction too far through praemunire, and

insulting the King in the commendams matter.

Coke’s defense falls on deaf ears. See Coke’s

Hearing, 1616, p. 1323.

June 30, 1616 Lord Treasurer Suffolk, on behalf of the Privy

Council, orders Coke to be sequestered in chambers,

to be barred from riding as a judge on circuit to

hold assizes in outlying cities, to revise his Reports

and prepare them for censorship by the king, not to

call himself “Lord Chief Justice of England” but

only Chief Justice of the King’s Bench, and not to

let his coachman ride without his hat.

October 2, 1616 Coke reports to the Privy Council that he has

repaired the Reports, listing ﬁve quite minor

corrections. The primary charge was against Coke’s

report in Dr. Bonham’s Case, in which he made no

real changes. Bacon continues to agitate for his

dismissal.

October 17, 1616 At another hearing, Coke is advised to consider ﬁve

new points in his Reports. Bacon draws up a list of

Coke’s moves against the King’s powers and

favorites, which he sends the King.

November 14, 1616 James resolves to remove Coke from the bench for

his “perpetual turbulent carriage.”

James issues a supersedeas, drafted by Bacon, which

removes Coke as Chief Justice of the King’s Bench:

“For certain causes now moving us, we will that you

shall be no longer our Chief Justice to hold pleas

before us, and we command you that you no longer

interfere in that ofﬁce, and by virtue of this

presence, we at once remove and exonerate you from

the same.”

November 18, 1616 Henry Montague is sworn in as Chief Justice of the

King’s Bench by a triumphant Ellesmere, who

Chronology of Events lvii

admonishes Montague to remember “the removing

and putting down of your late predecessor, and by

whom: the great King of Great Britain.”

1616–21 Coke is given no major positions but is assigned a

series of Star Chamber prosecutions of Dutch

merchants exporting coin, of Lord Treasurer Suffolk

on charges of bribery, and of Attorney General

Yelverton, on political grounds. He is assigned to

royal commissions on banishing Jesuits and

seminarians, on negotiating a treaty with the Dutch

regarding East Indian trade, on inquiring into ﬁnes

owed as taxes on manors, and on examining the

trade in weapons to foreign lands.

1617 Coke and Lady Elizabeth have a prolonged, very

public ﬁght over the control of their properties.

March–July 1617 In a blatant move to restore his fortunes at court,

Coke contrives to marry his daughter Lady Frances

to Sir John Villiers, the penniless brother of

Buckingham, the royal favorite. Without consulting

his wife or daughter, Coke offers her hand to

Villiers, who is twice her age but smitten with her

beauty and wealth. Lady Elizabeth hides her

daughter and tries to marry her to the Earl of

Oxford by a ruse based on a forged letter from him.

Coke gets a search warrant and leads an armed party

to Oatlands, a summer house of his wife’s cousins,

breaking in and taking Frances by force back to his

house, Stoke Pogis. Bacon attempts to intercede

with Buckingham and the King to prevent the

marriage. Bacon, on a charge by Attorney General

Yelverton, prosecutes Coke in the Star Chamber for

kidnapping. Lady Elizabeth attempts to take her

daughter back but fails, and she also is prosecuted

and jailed. The King and Buckingham side with

Chronology of Eventslviii

Coke, and the King chides Bacon for jealousy.

Bacon supports the match.

September 29, 1617 Lady Frances and Sir John Villiers are married.

James I gives her away. Coke provides a dowry of

£10,000. Lady Elizabeth acquiesces, from prison.

Lady Frances will later elope with Sir Robert

Howard, ﬂeeing the country in man’s clothing, give

birth to a bastard son, and die abroad.

Late 1617 Coke is restored to the Privy Council.

November 2, 1617 Lady Elizabeth is released from her imprisonment

(in a London alderman’s house) and renews a life

dedicated to ridiculing her husband.

1619 (circa) William Harvey discovers the role of the heart in the

circulation of blood.

1620 Coke is made a Lord Commissioner of the Treasury.

Coke is elected to the new Parliament in an honest

election for the borough of Liskeard, Cornwall.

Bacon publishes his book on philosophical method,

Instauratio Magna, also known as Novum Organum,

in which he attacks the sufﬁciency of most general

principles as a basis for deduction, to great critical

acclaim.

November 21, 1620 A group of 102 radical Puritans of the English

Separation Church land well off course from their

target in Virginia. They found Plymouth Colony in

Massachusetts Bay and would become known as the

“Pilgrim Fathers,” following a speech by Daniel

Webster in the nineteenth century. Tradition

suggests that they carried a copy of Coke’s First

Institute among their possessions on their ship, the

Mayﬂower.

January 30, 1621 Parliament commences.

Chronology of Events lix

January–June 1621 A Bill for Supply, a request by the King for the

Commons to grant him funds, is moved by

Secretary Calvert. Coke, de facto leader of the

opposition in Commons, moves that the request for

supply and the petition for grievances against

Parliament’s privileges be referred together to a

committee of the whole House. Coke presents a

defense of Parliament based on Magna Carta. He is

assisted in his efforts throughout the Parliament by

John Selden, who is not then a member.

Coke attacks a parliamentarian named Sheppard,

who is expelled from the House for arguing against a

Puritan-sponsored bill to ban dancing on the

Sabbath, which he held should be Saturday.

Coke assists in several impeachments, including

proceedings against Bacon for twenty-eight charges

of misconduct as Chancellor, mainly by accepting

gifts of money from litigants before him (although

many of these donors lost their cases). Bacon is ﬁned

£40,000, banished from ofﬁce and Parliament, and

imprisoned in the Tower, although his ﬁne is later

remitted and he serves just one day. The King would

pardon him in 1624.

Coke supports bills for free trade and against

monopolies.

James suggests that Parliament be suspended from

May to November, which Coke opposes as against

Parliament’s privileges to decide on its adjournment,

even though the King could dismiss it. Coke

succeeds in obstructing a royal commission requiring

adjournment of the Commons, after which a

majority of the House vote to adjourn. See p. 1194.

June 21, 1621 On Coke’s recommendation, Roger Williams, a

future champion of religious tolerance and leader of

Chronology of Eventslx

the colony of Rhode Island, is admitted to be a

scholar in Sutton’s Hospital, a school later named

Charter House. Williams would later serve as a

copyist for Coke, recording hearings in Star

Chamber and elsewhere. He later attends Pembroke

College, Cambridge, and appears to have brieﬂy

studied law under Coke before emigrating. See

Sutton’s Hospital, p. 347.

1621 Robert Burton publishes The Anatomy of Melancholy.

November–

December 1621

Parliament returns. Coke moves Parliament to pass

resolutions to the King advising him against an

alliance, through marriage, with Spain. The King

orders the House not to discuss such matters and

denies them any privileges by right. Coke authors a

protestation arguing for the liberties of Parliament,

including parliamentarians’ freedom of speech, as

“the ancient and undoubted birthright and

inheritance of the subjects of England.” See p. 1214.

December 14, 1621 Coke is passed over for Lord Treasurer when a raft

of new judges is appointed.

December 18, 1621 The Protestation is enrolled in the House Journal.

December 27, 1621 James sends Coke, John Selden, William Prynne,

and other leaders of the opposition to the Tower.

Coke’s house, Holborne, is sealed and his legal

papers are seized. See Coke’s Arrest after Parliament,

p. 1329. His failure to pay Christopher Hatton’s debt

is again revived, this time in the Court of Wards,

but over the following months, no evidence of

disloyalty can be produced against him.

December 28, 1621 The King prorogues Parliament, or suspends it until

the next term. He orders the Journal be seized, and

tears the Protestation Coke had drafted from it with

his own hands.

Chronology of Events lxi

January 6, 1622 James dissolves Parliament.

1622 While in the Tower, after several months’

conﬁnement without books, Coke’s conditions are

mediated; he apparently begins work on his

commentary on Littleton’s Tenures, which will

become the First Institute.

August 1622 Following intercession by Prince Charles with James,

Coke is paroled, but he is dismissed as a privy

councillor.

1622 Architect Inigo Jones, Surveyor of the King’s Works,

completes the new Banqueting House at Whitehall

in the Palladian, or Italian Renaissance style,

marking the effective end of the age of English

perpendicular gothic buildings.

1623 Shakespeare’s First Folio is published.

Coke is named to a commission in Ireland, as a

form of banishment. He responds by agreeing to

“discover and rectify many great abuses” and is

allowed to remain at home.

February 1624 Coke enters the new Parliament as an ally of

Buckingham, with whom he is brieﬂy reconciled.

Coke successfully promotes acts abolishing

monopolies and creating a system of patents for the

protection of inventors’ rights in their inventions.

May 1624 Coke conducts the impeachment of the Lord High

Treasurer Lionel Cranﬁeld, Earl of Middlesex, an

opponent of Buckingham, for bribery. Cranﬁeld is

banished from ofﬁce, ﬁned £50,000, and sent to the

Tower.

May 29, 1624 Parliament ends. Coke returns to Stoke Pogis to

write, although he is restored to the Privy Council.

March 27, 1625 James I dies.

Chronology of Eventslxii

1 Car.

March 27, 1625 Charles I becomes King, at the age of 24.

1625 Dutch law scholar Hugo Grotius publishes De Jure

Belli ac Pacis, or On the Law of War and Peace.

London and other cities are in the grip of a severe

plague outbreak.

June 22, 1625 A new Parliament is formed. Coke begins the ﬁrst

Parliament of the new King moderately, without his

by-then customary motion for the ﬁrst day from the

last two parliaments, with a motion to appoint a

committee of grievances. However, Coke soon

opposes heavy taxes and joins opposition to the

Duke of Buckingham, the favorite.

November 1625 Charles I appoints Coke, then aged 73, as Sheriff of

Buckinghamshire, thus barring him from sitting in

Parliament, because sheriffs are required by statute

to remain in their counties. The same trick is played

on Edward Alford, William Fleetwood, Sir Francis

Seymour, Sir Robert Phelips, Sir Guy Palmes, and

Sir Thomas Wentworth, opposition leaders in earlier

parliaments. Coke refuses to take the ancient oath as

sheriff, which he claims is anti-Protestant. The

judges administering it agree with him in part, but

he is ordered to take most of it, and so he must

serve. See Sir Edward Coke’s Case (The Sheriff’s

Oath), p. 1332.

February 2, 1626 Charles I is crowned king.

February 10, 1626 Coke returns to Parliament, elected from Norfolk.

The King questions the ability of Coke and other

sheriffs to be seated. Parliament appoints a

committee to examine their election and privilege,

which relies in part on an earlier statement of Coke’s

to determine that sheriffs cannot sit. Coke returns

home and spends his time drafting his Institutes.

Chronology of Events lxiii

March 1626 Francis Bacon, while driving through a London

suburb wondering whether refrigeration could

preserve meat, stops his carriage, purchases a hen,

and stuffs it with snow; he contracts bronchitis and

dies on April 9.

June 15, 1626 Parliament, including Coke’s son Clement, having

been fairly obstreperous, is dissolved. On its last day

it passes a resolution to consider Coke a de facto

member, entitled to the privileges of a member

against lawsuits.

1627 Charles, embroiled in an expensive and losing war

with Spain and in want of money, orders all knights

to lend him money and orders the arrest of the

many who don’t pay as well as those who won’t

collect it.

November 22, 1627 Argument of The Five Knights’ Case, in which four

lawyers, led by Selden, defend Sir Thomas Darnel,

Sir John Corbet, Sir Walter Earle, Sir John

Heveningham, and Sir Edward Hampden, who had

been committed to prison for not paying forced

loans and who had sought release by habeas corpus,

claiming that they could not be imprisoned unless

they had violated a law passed by Parliament. Selden

and others mount a defense of this point from

Magna Carta that would bar the Privy Council from

ordering imprisonment without a prior statute. The

King’s Bench refuses to grant the bail requested

under the habeas, and refuses to keep them there

without more from the King. The prisoners linger

until the seventy-six who refused to pay are all

released on January 2, 1628.

1628 The First Part of the Institutes of the Lawes of

England, or, A Commentarie upon Littleton, is

published by the Companie of Stationers. See p. 573.

Chronology of Eventslxiv

Coke is elected from Buckinghamshire and,

separately, elected from Suffolk to a new Parliament.

The Commons is heavy with opposition and legal

talent, including Thomas Wentworth, John Selden,

William Noye, his co-counsel from the Five

Knights’ Case, the lawyers John Pym, John Eliot,

and Duddley Digges, as well as the young, still-

obscure Oliver Cromwell.

March 17, 1628 Charles I’s opening address warns members not to

be foolish and interfere in his affairs.

March–June 1628 Coke moves for a Parliamentary committee of the

whole to consider grievances and supply. He argues

for the protection of habeas corpus, moving for a

Petition of Right. The House of Lords introduces an

amendment to save the “sovereign power of the

Crown.” Coke persuades Commons to defeat the

amendment, and the Lords to agree with its

removal. The King, advised by Buckingham, gives

an evasive answer that would not amount to

acceptance of the Petition as law. Coke denounces

Buckingham as the cause of the King’s insult to the

House. The Lords and Commons make a joint

address to Charles I, asking him to assent. Charles I

assents to the Petition of Right as a statute of the

realm. A supply bill is passed. See p. 1225.

June 26, 1628 Charles I prorogues Parliament.

August 23, 1628 Buckingham, Charles I’s favorite and closest adviser,

who has been largely responsible for the war with

France and has personally led a disastrous military

campaign to relieve the Huguenots of La Rochelle, is

assassinated. The masses in London celebrate.

January 21, 1629 Parliament recommences brieﬂy. Coke does not

attend.

Chronology of Events lxv

1629–34 Although the idea has long been with him, and

manuscript parts of the Institutes, particularly the

commentaries on Magna Carta, had been written

prior to 1621, Coke is believed during this period to

have prepared the manuscripts for the Second,

Third, and Fourth Institutes for publication.

1630 John Winthrop and approximately a thousand

Puritans sail for Massachusetts.

May 3, 1632 Coke’s horse stumbles, pinning him beneath;

although Coke believes he is not hurt, he is. His

daughter, the now-reconciled Lady Frances, returns

home to nurse him.

August 29, 1632 John Locke is born.

1633 Third edition of the First Institute is printed by

M.F.I.H. and R.Y. Assignes of I. More.

Hearing a rumor that Coke is dead, Lady Elizabeth

sends her brother to take possession of his house. He

is not dead, and Lady Elizabeth must wait another

year and a half.

Summer 1634 Coke grows ill.

September 1, 1634 Secretary of State Sir Francis Windebank and

attendants arrive at Stoke Pogis to search for

seditious papers on orders of the King and Privy

Council. They ﬁnd Coke on his deathbed and seize

his manuscripts, will, and letters.

September 3, 1634 Coke dies, aged 82. He is buried in Tittleshall, next

to Bridget, his ﬁrst wife.

1635 Coke’s A Little Treatise of Baile and Maineprize is

ﬁrst published.

Chronology of Eventslxvi

1640 Hobbes circulates his manuscript of The Elements of

Law, Natural and Politic.

November 3, 1640 The Long Parliament commences.

May 12, 1641 Parliament gives to Coke’s heirs the right to publish

the later volumes of the Institutes.

1641 The colonial General Court of Massachusetts adopts

The Body of Liberties, which is thought to be based

on Coke’s view of the law.

Coke’s The Compleat Copyholder is ﬁrst published.

See p. 563.

1642 Coke’s Second Part of the Institutes is ﬁrst

published. See p. 745.

1642–51 English Civil Wars.

1644 Coke’s The Third Part of the Institutes and The

Fourth Part of the Institutes are ﬁrst published. See

p. 944 and p. 1053.

1647 General Court of Massachusetts Bay Colony orders

the purchase of two copies each of Coke’s Reports,

First Institute and Second Institute, and Book of

Entries, as well as of two other law books. Coke’s

books are the legal mainstay of all colonial libraries.

January 20, 1649 Charles I’s last armies and allies have been defeated

in the ﬁeld, and he is brought before a specially

constituted high court of justice in Westminster

Hall. Charged with high treason and “other high

crimes against the realm of England,” the king

refuses to recognize the court because “a king cannot

be tried by any superior jurisdiction on earth.”

Despite his refusal to plead, he states that he

represented the “liberty of the people of England.”

He is found guilty and, on January 27, sentenced to

death.

January 30, 1649 Charles I is executed.

Chronology of Events lxvii

1651 Hobbes publishes Leviathan, or the Matter, Form,

and Power of a Commonwealth, Ecclesiastical and

Civil.

1653–59 Protectorate. Oliver Cromwell rules Britain.

1656 The Twelfth Part of the Reports is ﬁrst published.

James Harrington publishes Oceana, a utopian and

imaginative work of political theory, arguing for

stable economy, stable laws, and a limited

aristocracy.

1658 Oliver Cromwell dies.

1658–59 First English edition of the Reports, parts 1–11, is

published.

1659 Certain Select Cases in Law, the thirteenth volume of

Coke’s Reports, is published. See p. 499.

1 Car. 2

May 29, 1660 The restoration of the monarchy; Charles II is

crowned.

1674 England’s Independency upon the Papal Power, a

pamphlet drawn from Coke’s and John Davis’s

writings, is published in London.

1681 A Dialogue between a Philosopher and a Student of the

Common Law is published anonymously, although it

is widely known to be the work of Thomas Hobbes.

An extended criticism of Coke’s view of law, it

presents a more moderate view of sovereignty than

Leviathan.

1680 Henry Care publishes a tract strongly inﬂuenced by

the Second Institute, English Liberties: Or, The Free-

Born Subject’s Inheritance. This will go through

several printings, including American printings in

1721 and 1774.

Chronology of Eventslxviii

1 Jac. 2

February 6, 1684 James II is crowned.

1684 Edward Coke’s notes on Readings on Fines and

Recoveries are ﬁrst published.

1687 William Penn, the new governor of Pennsylvania,

writes The Excellent Priviledge of Liberty & Property

Being the Birth-Right of the Free-Born Subjects of

England, a book heavily inﬂuenced by Coke’s

writings.

1688 The Glorious Revolution.

1W&M

Feb. 13, 1689 William and Mary are crowned.

1690 John Locke publishes the Two Treatises of

Government.

1701 Parliament passes the Act of Settlement, which bars

Roman Catholics from the crown and, among many

other limits on the royal prerogative, establishes

judicial independence from royal dismissal.

1 Anne

March 8, 1702 Anne is crowned.

1708 Thomas Wood, who would write his own Institutes

of the Laws of England in 1720, based on Coke’s

Institutes, argues for university lectures based on

Coke’s works in Some Thoughts concerning the Study

of the Laws of England in the Two Universities. A

chair along such lines would be ﬁrst established in

Oxford ﬁfty years later.

1711 The Conductor Generalis, a manual for justices of the

peace and other legal ofﬁcials, is ﬁrst published in

New York. As with George Webb’s 1736 The Ofﬁce

and Authority of the Justice of the Peace, published in

Williamsburg, the book is inﬂuenced by Coke’s

Chronology of Events lxix

Reports and Institutes, as will be later manuals for

justices of the peace.

1 Geo.

August 1, 1714 George I is crowned.

1 Geo. 2

June 11, 1727 George II is crowned.

1747 Thomas Coke, Sir Edward’s grandson, is made

Viscount Coke and Earl of Leicester; this line

becomes extinct on the death of Thomas, Lord

Coke, and will be re-created in a later Thomas, Lord

Coke, in 1837, whence the title continues.

1748 Montesquieu publishes L’Esprit des Lois, arguing,

among other things, for separation of powers.

1758 Charles Viner’s chair in law, the ﬁrst chair for

lecturing on the Common Law in an English

university, is ﬁlled by William Blackstone.

1 Geo. 3

October 25, 1760 George III is crowned.

1761 James Otis, a Massachusetts lawyer, argues from

Bonham’s Case, Coke’s Institutes, the Petition of

Right, and Magna Carta that crown writs of

assistance (search warrants letting customs ofﬁcers

search any house for smuggled goods without limit)

violate fundamental law. The Superior Court in

Boston rejects his argument, one of the ﬁrst causes

of the American Revolution. The case is watched

and reported by a young John Adams, who later

bases the Fourth Amendment requirements of

reasonable searches and limited warrants on Otis’s

argument.

1762 A typical law student of the age, Thomas Jefferson is

required to read Coke’s Institutes, particularly the

First, with predictable results: “I do wish the Devil

Chronology of Eventslxx

had old Coke, for I am sure I never was so tired of

an old dull scoundrel in my life.”

1764 A new edition of Coke’s Law Tracts is published in

London by B. W. Hawkins.

1765–69 William Blackstone’s four-volume Commentaries on

the Laws of England is published in Oxford. It is

published in 1770 in Philadelphia. The work is

original, although it necessarily borrows a great deal

from the Institutes. It is sufﬁciently more obliging of

the power of Parliament and of the Crown that

Thomas Jefferson would later despair when

Blackstone is taught in lieu of Coke in the law

school at the University of Virginia.

1776 American Declaration of Independence.

1778 The Virginia Supreme Court decides Philips’s Case,

the ﬁrst of several considerations of the doctrine of

judicial review by state courts and federal circuit

judges between independence and 1803.

1779 Judge George Wythe is appointed Professor of Law

and Police in the College of William and Mary. He

is the ﬁrst university law lecturer in America. Both

he and Judge Tapping Reeve, his later competition

in Litchﬁeld, Connecticut, teach their pupils from

Coke’s Institutes and Reports.

1782 George Wythe, on the Supreme Court of Virginia,

rules that the courts cannot enforce a governor’s

pardon, or any law, that exceeds the limits of the

state’s constitution.

1783 The Treaty of Paris ends American Revolution.

1787 U.S. Constitutional Convention. The new

Constitution reﬂects many of the ideas of Coke’s

arguments, including limits on the executive from

legislative and constitutional tasks, limits raising of

Chronology of Events lxxi

taxes to legislative branch, as well as provision for

habeas corpus, impeachment of ofﬁcials, and judicial

independence by appointments for life subject only

to legislative impeachment.

1789 The U.S. Constitution comes into force.

1791 The ﬁrst ten Amendments to the U.S. Constitution

are passed.

1796 U.S. Supreme Court in Hylton v. U.S. strikes down

a tax on carriages as a violation of the uniformity

clause of the Constitution of 1789.

1798 U.S. Supreme Court in Calder v. Bull posits a

limitation of state statutes according to natural law.

It is not followed in later cases.

1799 Coke’s Institutes and Reports continue, along with

Blackstone’s works, to be the standard reading for

new law students, although Coke’s works are hard

going for poorly tutored pupils. Typical of the self-

taught clerks studying in law ofﬁces, the future

justice and professor Joseph Story writes of studying

the First Institute: “I took it up, and after trying it

day after day with very little success, I sat myself

down and wept bitterly. My tears dropped upon the

book, and stained its pages.” Only with tenacious

effort did he eventually “comprehend and reason

upon the text” and eventually, “when I had

completed the reading of this most formidable work,

I felt I breathed a purer air, and that I had acquired

a new power.”

1803 Chief Justice John Marshall announces his opinion

in Marbury v. Madison, that the U.S. courts cannot

enforce an act of Congress that is “repugnant to the

Constitution.” This case largely conﬁrms judicial

review as a principle of American constitutional law.

Editions of Coke’s Works

I. The Parts of the Reports

A. First Part of the Reports

Les Reports de Edward Coke. London: In folio [A. Islip], in aed. T. Wight,

1600. (S.T.C. 5493)

——— [Anr. ed.]. London: In folio [A. Islip], in aed. T. Wight [1601?]. (S.T.C.

5493.4)

——— [Anr. ed.]. London: In folio [A. Islip], in aed. T. Wight, 1601. (S.T.C.

5493.7)

——— [Anr. ed.]. London, 1602. (purported)

——— [Anr. ed.]. London, 1603. (purported)

——— [Anr. ed.]. London: In folio [A. Islip], for the Companie of Stationers,

1609. (S.T.C. 5494)

——— [Anr. ed.]. London: In folio [A. Islip], for the Companie of Stationers,

1619. (S.T.C. 5494.3)

——— [Anr. ed.]. In folio. London: Printed by J. Streater and E. Flesher and

H. Twyford, assigns of R. and E. Atkyns; sold by George Sawbridge [etc.],

1672. (S.T.C. 4945)

——— [Anr. ed.]. 1680. (S.T.C. C4944A)

——— [Anr. ed.]. London: By the assigns of J. More, 1636. (S.T.C.

5494.8)

——— [Anr. ed.]. London: By the assigns of R. and E. Atkyns, for S. Keble

and J. Walthoe, 1697. (S.T.C. 4947)

B. Second Part of the Reports

Le Second Part Des Reportes. . . . London: In folio [A. Islip], in aed. T. Wight,

1602. (S.T.C. 5495)

——— [Anr. ed.]. London: In folio [A. Islip], in aed. T. Wight [1604?]. (S.T.C.

5496)

Editions of Coke’s Workslxxiv

——— [Anr. ed.]. London: In folio [A. Islip], for the Companie of Stationers,

1610. (S.T.C. 5497)

——— [Anr. ed.]. London: In folio [A. Islip], for the Companie of Stationers,

1618. (S.T.C. 5498)

——— [Anr. ed.]. London: For the Company of Stationers, 1619.

——— [Anr. ed.]. London: By the assigns of J. More, 1635. (S.T.C. 5498.5)

——— [Anr. ed.]. London: By the assigns of R. and E. Atkins, for S. Keble

and J. Walthoe, 1697. (S.T.C. 4954)

C. The Third Part of the Reports

Le Tierce Part Des Reportes. . . . London: In folio [A. Islip], in aed. T. Wight,

1602. (S.T.C. 5499)

——— [Anr. ed.]. London: In folio [A. Islip], in aed. T. Wight, 1602. (S.T.C.

5499.2)

——— [Anr. ed.]. London, 1603. (purported)

——— [Anr. ed.]. London: In folio [A. Islip], for the Companie of Stationers,

1610. (S.T.C. 5500)

——— [Anr. ed.]. London: In folio [A. Islip], for the Companie of Stationers,

1619. (S.T.C. 5501)

——— [Anr. ed.]. London: By the assigns of J. More, 1635. (S.T.C. 5501.5)

——— [Anr. ed.]. London: By the assigns of R. and E. Atkyns, for S. Keble

and J. Walthoe, 1697. (S.T.C. 4968)

D. The Fourth of the Reports

Le Quart Part Des Reports. . . . London: In folio [A. Islip], in aed. T. Wight,

1604. (S.T.C. 5502)

——— [Anr. ed.]. London: In folio [A. Islip], in aed. T. Wight, 1604. (S.T.C.

5502.3)

——— [Anr. ed.]. London: In folio [A. Islip], for the Companie of Stationers,

1610. (S.T.C. 5503)

——— [Anr. ed.]. London: In folio [A. Islip], for the Companie of Stationers,

1618. (S.T.C. 5503.4)

——— [Anr. ed.]. London: For the Company of Stationers, 1619.

——— [Anr. ed.]. London: By the assigns of J. More, 1635. (S.T.C. 5503.7)

Editions of Coke’s Works lxxv

——— [Anr. ed.]. London: By the assigns of R. and E. Atkyns, for S. Keble

and J. Walthoe, 1697. (S.T.C. 4942)

E. The Fifth Part of the Reports

Quinta Pars Relationum. ...the Fifth Part. . . . London: In folio [A. Islip],

for the Company of Stationers, 1605. (S.T.C. 5504)

——— [Anr. ed.]. London: In folio [A. Islip], for the Company of Stationers,

1606. (S.T.C. 5505)

——— [Anr. ed.]. London: For the Company of Stationers, 1607.

——— [Anr. ed.]. London: In folio [A. Islip], for the Company of Stationers,

1612. (S.T.C. 5507)

——— [Anr. ed.]. London: In folio [A. Islip], for the Company of Stationers,

1624. (S.T.C. 5508)

——— [Anr. ed.]. London, 1660. (purported)

——— [Anr. ed.]. London: By the assigns of R. and E. Atkyns, for S. Keble

and J. Walthoe, 1697. (S.T.C. 4911)

F. The Sixth Part of the Reports

Le Seize Part des Reports. . . . London: In folio [A. Islip], for the Societie of

Stationers, 1607. (S.T.C. 5509)

——— [Anr. ed.]. London: In folio [A. Islip], for the Societie of Stationers,

1607. (S.T.C. 5509.5)

——— [Anr. ed.]. London: In folio [A. Islip], for the Societie of Stationers,

1621. (S.T.C. 5510)

——— [Anr. ed.]. London: By the assigns of J. More, 1636. (S.T.C. 5510.5)

——— [Anr. ed.]. London: By the assigns of R. and E. Atkins, for S. Keble

and J. Walthoe, 1697. (S.T.C. 4956)

G. The Seventh Part of the Reports

Le Sept Part des Reports. . . . London: In folio [A. Islip], for the Societie of

Stationers, 1608. (S.T.C. 5511)

——— [Anr. ed.]. London: In folio [A. Islip], for the Societie of Stationers,

1608. (S.T.C. 5511.2)

——— [Anr. ed.]. London: In folio [A. Islip], for the Societie of Stationers,

1629. (S.T.C. 5512)

Editions of Coke’s Workslxxvi

——— [Anr. ed.]. London: In folio Printed by J. Streater and H. Twyford,

assigns of E. and R. Atkins, 1671. (S.T.C. 4954A)

——— [Anr. ed.]. London: By the assigns of R. and E. Atkins, for S. Keble

and J. Walthoe, 1697. (S.T.C. 4955)

H. The Eighth Part of the Reports

Le Huictme Part des Reports. . . . London: In folio [A. Islip], for the Societie

of Stationers, 1611. (S.T.C. 5513)

——— [Anr. ed.]. London: In folio [A. Islip], for the Societie of Stationers,

1611. (S.T.C. 5513.2)

——— [Anr. ed.]. London: In folio [A. Islip], for the Societie of Stationers,

1611 [post 1640?]. (S.T.C. 5513.6)

——— [Anr. ed.]. London: In folio [A. Islip], for the Societie of Stationers,

1626. (S.T.C. 5514)

——— [Anr. ed.]. London: By the assigns of R. and E. Atkyns, for S. Keble

and J. Walthoe, 1697. (S.T.C. 4937)

I. The Ninth Part of the Reports

Le Neufme Part des Reports. . . . London: In folio [A. Islip], for the Societie

of Stationers, 1613. (S.T.C. 5515)

——— [Anr. ed.]. London: In folio [A. Islip], for the Societie of Stationers,

1615. (S.T.C. 5516)

——— [Anr. ed.]. London: In folio [A. Islip], for the Societie of Stationers,

1627. (S.T.C. 5517)

——— [Anr. ed.]. London: By the assigns of R. and E. Atkins, for S. Keble

and J. Walthoe, 1697. (S.T.C. 4940)

J. The Tenth Part of the Reports

Le Dixme Part des Reports. . . . London: In folio [A. Islip], for the Societie of

Stationers, 1614. (S.T.C. 5518)

——— [Anr. ed.]. London: In folio [A. Islip], for the Societie of Stationers,

1618. (S.T.C. 5519)

——— [Anr. ed.]. London, 1627. (purported)

——— [Anr. ed.]. London: In folio [A. Islip], for the Societie of Stationers,

1629. (S.T.C. 5520)

Editions of Coke’s Works lxxvii

——— [Anr. ed.]. London: By the assigns of R. and E. Atkins, for S. Keble

and J. Walthoe, 1697. (S.T.C. 4918)

K. The Eleventh Part of the Reports

Le Unzime Part Des Reports. . . . London: In folio [A. Islip], for the Societie

of Stationers, 1615. (S.T.C. 5521)

——— [Anr. ed.]. London: In folio [A. Islip], for the Societie of Stationers,

1616. (S.T.C. 5522)

——— [Anr. ed.]. London: In folio [A. Islip], for the Societie of Stationers,

1619. (S.T.C. 5523)

——— [Anr. ed.]. London, 1627. (purported)

——— [Anr. ed.]. London: By the assigns of J. More, 1631. (S.T.C. 5524)

——— [Anr. ed.]. London: By the assigns of J. More, 1631. (S.T.C. 5524.3)

——— [Anr. ed.]. London: By the assigns of R. and E. Atkins, for S. Keble

and J. Walthoe, 1697. (S.T.C. 4972)

L. The Twelfth Part of the Reports

The Twelfth Part of the Reports of Sir Edward Coke. London: By T. Roycroft,

for H. Twyford and T. Dring, 1656. (S.T.C. 4969)

——— [Anr. ed.]. London: For H. Twyford and T. Dring, 1658. (S.T.C. 4970)

——— 2d ed. London: By the assigns of R. and E. Atkins, for H. Twyford

and T. Basset, 1677. (S.T.C. 4971)

M. The Thirteenth Part of the Reports

Certain Select Cases in Law. London: By T. Roycroft, for J. Sherley, H. Twyford,

and T. Dring, 1659. (S.T.C. 4909)

——— 2d ed. London: By the assigns of R. and E. Atkins, for H. Twyford,

T. Basset, and B. Sherley, 1677. (S.T.C. 4910)

II. The Reports

N.B.: Various editions of the reports were often bound together as a single

set of Reports. Entries in this section include only those published apparently

bound for sale as a series.

Editions of Coke’s Workslxxviii

Les Reports de Sir Edward Coke. [Pts. 1–11 and table] London: Printed by John

Streater [etc.] sold by George Sawbridge [etc.], 1672 (2 folio; eleven parts

dated 1671, table dated 1672). (S.T.C. 4945)

——— [Anr. ed.]. 1680. (S.T.C. 4944A)

The Reports of [Pts. 1–11]. London: For W. Lee, M. Walbanck, D. Pakeman,

and G. Bedell, 1658. (S.T.C. 4944)

——— 2d ed. [Pts. 1–11]. London: By the assigns of R. and E. Atkyns, for

J. Streater, E. Flesher, and H. Twyford, 1677. (S.T.C. 4945)

——— 2d ed., with 2 tables [Pts. 1–11]. London: For H. Twyford, T. Collins,

T. Basset, J. Wright, S. Heyrick, T. Sawbridge, M. Pitt, C. Harper, and J.

Place, 1680. (S.T.C. 4946)

——— [Anr. ed.] [Pts. 1–11]. London: By the assigns of R. and E. Atkins,

for S. Keble, and J. Walthoe, 1697. (S.T.C. 4947) (also listed under heading

for each part)

——— [Anr. ed.] [Pts. 1–13]. London: By E. and R. Nutt and R. Gosling,

1727.

——— Reprint of 1727 ed., London: By E. and R. Nutt and R. Gosling,

1738.

——— [Anr. ed.] [Pts. 1–11]. London, 1762 (purported)

——— [Anr. ed.] [Pts. 1–13]. Incl. “the respective pleadings.” Rev., corr., trans.

and notes by G. Wilson. London: For J. and F. Rivington, 1776. (7 vols.)

——— [Anr. ed.]. London, for J. and F. Rivington, 1777. (purported)

——— [Anr. ed.]. London, for J. and F. Rivington, 1778. (purported)

——— [Anr. ed.]. Dublin: J. Moore, 1792–93.

——— “New ed.,” Rev., corr., trans. and notes by G. Wilson, and notes by

J. H. Thomas, J. F. Fraser. London: J. Butterworth and son [etc.], 1826. (6

vols.)

——— [Anr. ed.]. Edinburgh: W. Green & Sons; London: Stevens & Sons,

1907. (vols. 76, 77 of the English Reports)

III. Summaries and Tables of the Reports

Le Necessarie Vse & Fruit De Les Pleadings Conteine En Le Lieur De En Le

Lieur De Le Tresreuerend Edward Coke Lattorney General La Roigne ...

Richard Cary, ed. London: T. Wright, 1601.

Un Perfect Table a Touts Les Severall Livers Del Reportes. London: In folio [A.

Islip], for the Companie of Stationers, 1606. (S.T.C. 5525)

Editions of Coke’s Works lxxix

——— [Anr. ed.]. London: For the Societie of Stationers, 1618. (S.T.C.

5526)

——— [Anr. ed.]. London: By the assigns of J. More, 1631. (S.T.C. 5526.5)

——— [Anr. ed.]. London: By I. Flesher for W. Lee [and 2 others], 1652.

Fasciculus Florum. Ou Un Briefe & Alphabeticall Collection De Touts Les Mem-

orable Sentences & Texts De Latine, Conteinue En Les Reports Edwardi Coke.

Per T. Ashe &c. Lat. 8 Њ. London: G. Eld, 1617. (S.T.C. 5528)

Fasciculus Florum. Or a Handfull of Flowers, Gathered out of the Severall Bookes

of Sir E. Coke. London: G. Eld, 1618. (S.T.C. 5529)

Haec epitome undecim librorum relationum. . . . London: By the assigns of J.

More, 1640. (S.T.C. 5527)

An Exact Abridgment in English, of the Eleven Books of Reports of. . . . Lon-

don: By M. Simmons, for M. Walbancke and H. Twyford, 1650. (S.T.C.

4919)

——— 2d ed. London: For M. Walbancke and J. Place, 1651. (S.T.C. 4920)

——— 3d ed. London: By F. Leach, for M. Walbancke and H. Twyford, 1656.

(S.T.C. 4920A)

——— “3d” ed. London: By F. Leach, for M. Walbancke, 1657. (S.T.C. 4921)

——— “3d” ed. London: For G. Dawes, 1666. (S.T.C. 4921A)

...To Which Is Now Added, an Abridgment of the Twelfth and Thirteenth Books,

by John A. Dunlap, 1st American from the 3d London ed., New York: By

I. Riley, 1813.

A Perfect Abridgement of the Eleaven Bookes of Reports. London: By I. G. for

W. Lee, D. Pakeman, and G. Bedell, 1651. (S.T.C. 4941)

Un Exact Alphabetical Table De Tout. London: For W. Lee and H. Twyford,

1664. (S.T.C. 4923)

An Exact Abridgement of the Two Last Volumes of Reports. London: By H.

Twyford and T. Twyford, 1670. (S.T.C. 4922)

An Abridgment of the Reports of the Learned Sir Edward Coke, Knight; the First

Eleven Books Abridged by Sir Thomas Ireland, Knight; and the Two Last by

Thomas Manley. 4th ed., rev. and cor. Dublin: By H. Watts, 1793.

——— The Reports, in Verse; Wherein the Name of Each Case and the Principal

Points Are Contained in Two Lines. Edited by J. Worrall. London: By H.

Lintot, 1742.

——— [Anr. ed., enl.]. London: J. & W. T. Clarke, 1825.

——— 3d ed., intro., J. Wesley Miller. London: R. Pheney [etc.], 1826.

——— Reprint of 1826 ed., Buffalo, New York: William Hein Corp., 1999.

Editions of Coke’s Workslxxx

IV. Declarations and Pleadings (from the Reports)

The Declarations and other Pleadings Contained in the Eleven Parts of [his]

Reports. London: For W. Lee, D. Pakeman, and G. Bedell, 1659. (Decla-

rations and Pleadings contained in his eleven books of Reports or abridgments

of the Reports, which were printed in 1650, 1658, and 1680, were wanting.)

(S.T.C. 4917)

V. The Institutes of the Laws of England

A. The First Institute of the Laws of England,

or a Commentary upon Littleton

The First Part of the Institutes of the Lawes of England. Or, a Commentarie upon

Littleton. London: In folio [A. Islip], for the Societie of Stationers, 1628.

(S.T.C. 15784)

——— 2d ed., corr., with an alphabeticall table. London: By M. Flesher, F.

Haviland, and R. Young, 1629. (S.T.C. 15785)

——— 3d ed., corr. London: By M. Flesher, F. Haviland, and R. Young, 1633.

(S.T.C. 15786)

——— 4th ed. London: By M. Flesher, F. Haviland, and R. Young, 1639.

(S.T.C. 15787)

——— 5th ed. London: For the Companie of Stationers, 1656. (S.T.C. 4924)

——— 6th ed. London: For the Companie of Stationers, 1664. (S.T.C. 4925)

——— 7th ed. London: By J. Streater, J. Flesher, and H. Twyford, 1670.

(S.T.C. 4926)

——— 8th ed. London: For the Societie of Stationers, 1670. (S.T.C. 4927)

——— 9th ed., to which is added the Readings on Fines, and Treatise on

Bail and Mainprize. London: By W. Rawlins, S. Roycroft, and H. Saw-

bridge, 1684. (S.T.C. 4928)

——— 10th ed., with the addition of The Compleat Copyholder and many

references. London: By W. Rawlins and S. Roycroft, 1703.

——— 11th ed., to which are annexed Old Tenures, and some notes and ad-

ditions. London, 1719.

——— 12th ed. London: By the assigns of E. Sayoy, for R. Gosling and H.

Lintot, 1738.

——— 13th ed., rev. and corr. by F. Hargrave. London, 1775–88.

——— 13th ed., rev. and corr. by F. Hargrave and C. Butler. London: By T.

Wright, for E. Brooke, 1788.

Editions of Coke’s Works lxxxi

——— 14th ed., by F. Hargrave and C. Butler. London, 1789.

——— 14th ed., Dublin: For J. Moore, 1791.

Additional Notes. Additions to the 13th and 14th eds. London, 1795.

——— Additional Notes. Additions to the 13th and 14th eds. Dublin, 1795.

——— 15th ed., by F. Hargrave and C. Butler. London: E. & R. Brooke,

1794–97.

——— 16th ed. London: By L. Hansard & Sons, for E. Brooke, etc., 1809.

——— 17th ed., by C. Butler. London: For W. Clarke, 1817.

——— 18th ed. by C. Butler. London: For J. & W. T. Clarke, 1823.

——— 19th ed., with an analysis of Littleton, written by an unknown hand

in 1658–59. Edited by C. Butler. London: For J. & W. T. Clarke, 1832.

——— 1st American ed. from the 16th European ed., rev. and corr. by Ch.

Butler and F. Hargrave. Philadelphia: Johnson and Weaver, 1812.

——— 1st American ed. from the 19th London ed., corr. by C. Butler. Phila-

delphia: R. H. Small, 1853.

——— Reprint of 19th London ed. New York: Garland, 1979.

——— Reprint of 18th London ed. Birmingham, Ala.: Legal Classics Library,

1985.

Littleton’s Tenures, in English: printed from the second edition of the Commentary

of Sir Edward Coke. London: For W. Clarke and Sons, 1813.

A Systematic Arrangement of Lord Coke’s First Institute of the Laws of England:

on the plan of Sir Matthew Hale’s analysis, with the annotations of Hargrave,

Lord Chief Justice Hale, and Lord Chancellor Nottingham, and notes and

references, by J. H. Thomas. London: Butterworth, 1818.

——— 1st American ed. from the last London ed., to which are added the

notes of Charles Butler. Philadelphia: R. H. Small, 1826–27.

——— 2nd American ed. from the last London ed., to which are added the

notes of Charles Butler. Philadelphia, A. Towar, 1836.

——— Reprint of 1836 Philadelphia ed. Buffalo, N.Y.: W. S. Hein Co., 1986.

A Readable Edition of Coke upon Littleton. Edited by Thomas Coventry. Lon-

don: Saunders and Benning, 1830.

A.1. Tables and Summaries of the First Institute

——— A Table to the ﬁrst part of the Institutes. London, 1629. (S.T.C.

15788)

——— [Anr. ed.]. London: By M. Flesher, F. Haviland, and R. Young, 1630.

(S.T.C. 15789)

Editions of Coke’s Workslxxxii

A.2. Abridgments of the First Institute

An Abridgement of the Lord Coke’s Commentary on Littleton., 2d ed. London:

For W. Lee, D. Pakeman, and G. Bedell, 1651. (S.T.C. 4906)

——— [Anr. ed.]. London: By E. G. for M. Walbancke and H. Twyford,

1652. (S.T.C. 4958)

——— [Anr. ed.]. London: By the assigns of R. and E. Atkyns, 1685. (S.T.C.

4906A)

An Analysis of Littleton. Written by an unknown hand in 1658–59. London:

For J. & W. T. Clarke, 1832. (Printed with 15th and later eds. of the First

Institute)

An Abridgement of the First Part of Coke’s Institutes, with additions. London:

By the assignee of E. Sayer, for J. Walthoe, 1711.

——— [Anr. ed.]. London, 1714. (purported)

——— 2d ed. London, 1718. (purported)

——— 3d ed., corr. London: E. Nutt and R. Bosling, 1719.

——— 4th ed. London, 1725. (purported)

——— 5th ed. London: By E. Nutt and R. Gosling, for T. Osborne, 1736.

——— 6th ed. London: By H. Lintot, for T. Osborne, 1742.

——— 7th ed. London: H. Lintot, for D. Brown, J. Shuckburgh [etc.], 1751.

——— 8th ed. Dublin: H. Watts and W. Jones, 1792.

——— 8th ed. by J. Rudall. London: S. Sweet, 1822.

——— Photo reprint of 1651 London ed. New York, 1979.

Ritso, Frederick. An Introduction to the Science of the Law Shewing the Ad-

vantages of a Law Education, Grounded on the Learning of Lord Coke’s Com-

mentaries upon Littleton’s Tenures. London: W. Clarke and Sons, 1815.

Hobler, Francis. Familiar Exercises Between an Attorney and His Articled Clerk,

On the General Principles of the Laws of Real Property: the First Book of Coke

upon Littleton Reduced to Questions. To Which Is Added the Original Text

and Commentary. London: E. Eedle, 1831.

——— 2d ed. 1838.

——— 3rd ed. 1847.

B. The Second Institute of the Laws of England

The Second Part of the Institutes of the Lawes of England. London: By M. Flesher

and R. Young, for E. D., R. M., W. L., and D. P., 1642. (S.T.C. 4948)

Editions of Coke’s Works lxxxiii

——— 2d ed. London: By J. Flesher, for W. L., D. P., and G. B., 1662. (S.T.C.

4949)

——— 3d ed. London: For A. Crooke, 1669. (S.T.C. 4950)

——— 4th ed. London: By J. Streater, H. Twyford, E. Flesher, assigns of R.

and E. Atkyns, 1671. (S.T.C. 4951)

——— 5th ed. London: By J. Streater, H. Twyford, E. Flesher, assigns of R.

and E. Atkyns, 1671. (S.T.C. 4952)

——— “5th” ed. London: For A. Crooke, W. Leake, A. Roper, F. Tyton, T.

Dring, T. Collins, J. Place, W. Place, J. Starkey, T. Basset, R. Pawlett, S.

Heyrick, and G. Dawes, 1671. (S.T.C. 4952A)

——— 6th ed. London: By W. Rawlins, for T. Basset, 1681. (S.T.C. 4953)

——— [Anr. ed.]. London: W. Clarke and Sons, 1809.

——— [Anr. ed.]. London: E. and R. Brooke, 1797.

——— [Anr. ed.]. London: W. Clarke and Sons, 1817.

——— Reprint of 1642 ed. New York: Garland, 1979.

——— Reprint of 1797 ed. Buffalo, N.Y.: W. S. Hein Co., 1986.

C. The Third Institute of the Laws of England

The Third Part of the Institutes of the Lawes of England. London: By M. Flesher,

for W. Lee, and D. Pakeman, 1644. (S.T.C. 4960)

——— The Third and Fourth Parts of the Institutes. London: By M. Flesher,

for W. Lee and D. Pakeman, 1648. (S.T.C. 4961)

——— 3d ed. London: By J. Flesher for W. Lee, and D. Pakeman, 1660.

(S.T.C. 4962)

——— 4th ed. London: For A. Crooke, W. Leake, A. Roper, F. Tyton, T.

Dring, T. Collins, J. Place, W. Place, J. Starkey, T. Basset, R. Pawlett, S.

Heyrick, and G. Dawes, 1669. (S.T.C. 4963)

——— “4th” ed. London: By J. Streater, J. Flesher, and H. Twyford, 1670.

(S.T.C. 4964)

——— 5th ed. London: For A. Crooke, W. Leake, A. Roper, F. Tyton, T.

Dring, T. Collins, H. Place, W. Place, J. Starkey, T. Basset, R. Pawlett, S.

Heyrick, and G. Dawes, 1671. (S.T.C. 4965)

——— 6th ed. London: By W. Rawlins, for T. Basset, 1680. (S.T.C. 4966)

——— [Anr. ed.]. London: For E. and R. Brooke, 1797.

——— [Anr. ed.]. London: W. Clarke, 1809.

——— [Anr. ed.]. London: W. Clarke, 1817.

Editions of Coke’s Workslxxxiv

——— Reprint of 1644 ed. New York: Garland, 1979.

——— Reprint of 1797 ed. Buffalo, N.Y.: W. S. Hein, 1986.

D. The Fourth Institute of the Laws of England

The Fourth Part of the Institutes of the Lawes of England. London: By M. Flesher,

for W. Lee and D. Pakeman, 1644. (S.T.C. 4929)

——— 2d ed. London: By M. Flesher, for W. Lee and D. Pakeman, 1648.

(S.T.C. 4930)

——— 3d ed. London, 1660. (purported)

——— 4th ed. London: For A. Crooke, W. Leake, A. Roper, F. Tyton, T.

Dring, T. Collins, J. Place, W. Place, J. Starkey, T. Basset, R. Pawlett, S.

Heyricke, and G. Dawes, 1669. (S.T.C. 4931)

——— 5th ed. London: By J. Streater, H. Twyford, E. Flesher, assigns of R.

and E. Atkyns, 1671. (S.T.C. 4932)

——— 6th ed. London: By W. Rawlins, for T. Basset, 1681. (S.T.C. 4933)

——— [Anr. ed.]. London: E. and R. Brooke, 1797.

——— [Anr. ed.]. London: W. Clarke and Sons, 1809.

——— [Anr. ed.]. London: W. Clarke & Sons, 1817.

——— Reprint of 1979 ed. Buffalo, N.Y.: W. S. Hein Co., 1986.

VI. Speech and Charge at Norwich

The Lord Coke his Speech and Charge (at the Assises at Norwich). With a discoverie

of the abuses and corruption of ofﬁcers. Edited by R. Pricket. London: By R.

Raworth and N. Okes for C. Pursett, 1607. (S.T.C. 5491)

——— [Anr. ed.]. London: For N. Butter, 1607. (S.T.C. 5492)

——— [Anr. ed.]. London: For N. Butter, 1607. (S.T.C. 5492.2)

——— [Anr. ed.]. London: By R. Raworth and N. Okes, for N. Butter, 1607.

(S.T.C. 5492.4)

VII. Book of Entries

A Booke of Entries: Containing Perfect and Approved Presidents of Counts, Dec-

larations, Informations, Pleints. Edited by T. Jones, Common Serjeant of

London. London: In folio [A. Islip] for the Societie of Stationers, 1614.

(S.T.C. 5488)

Editions of Coke’s Works lxxxv

——— 2d ed. London: By J. Streater, J. Flesher, and H. Twyford, assigns of

R. and E. Atkyns, 1671. (S.T.C. 4908)

——— 2d ed. London: By J. Streater, 1671. (S.T.C. 4908A)

VIII. Little Treatise of Baile and Maineprize

A Little Treatise of Baile and Maineprize. Written by E. C. Knight. London:

For W. Cooke, 1635. (S.T.C. 5489)

——— 2d ed., corr. and enl. London: By B. Alsop and T. Fawcet, for W.

Cooke, 1637. (S.T.C. 5490)

——— Reprint with 9th ed. of First Institute. London: By W. Rawlings, S.

Roycroft, and H. Sawbridge, 1684.

——— [Anr. ed.]. London: J. Roberts, 1715.

——— [Anr. ed.]. London: By His Majesty’s Law Printers, for T. Cadell,

1783.

——— [Anr. ed.]. Amsterdam, 1973.

——— Reprint of 1635 and 1783 eds., includes indexes. New York: Garland,

1978.

IX. The Complete Copyholder

The Compleat Copyholder, 1630 (presumed; not in S.T.C.)

[Anr. ed.]. London: By T. Cotes, for W. Cooke, 1641. (Reprint of 1st ed., 1630.

The forme of keeping a copy-hold court, and court baron is wanting).

(S.T.C. 4912)

——— [Anr. ed.]. London: For M. Walbanck, and R. Best, 1644. (S.T.C.

4913)

——— [Anr. ed.]. London: For W. Lee and D. Pakeman, 1650. (S.T.C. 4914)

——— [Anr. ed. w. supp.]. London: By J. Streater, E. Flesher, and H. Twyford,

assigns of R. and E. Atkyns, 1668. (S.T.C. 4915)

——— [Anr. ed.]. London: By E. Flesher, J. Streater, and H. Twyford, assigns

of R. and E. Atkyns, 1673. (S.T.C. 4916)

——— A supplement by way of additions to. London: By E. Flesher, J. Streater,

and H. Twyford, assigns of R. and E. Atkyns, 1673. (S.T.C. 4957)

——— Reprint with 10th ed. of First Institute. London: W. Rawlins and S.

Roycroft, 1703.

Editions of Coke’s Workslxxxvi

X. Three Law Tracts

Three Law Tracts: I. The compleat copyholder; being a discourse of the antiquity

and nature of manors and copyholds, & c. II. A reading on 27 Edward the

First, called the statute De ﬁnibus levatis. III. A treatise of bail and mainprize.

Edited by W. Hawkins. London: By His Majesty’s Law Printer for J.Worrall,

1764.

——— Reprint. Abingdon, Oxon: Professional Books, 1982.

XI. Later Reprints and Excerpts

Judges Judged Out of their own Mouthes. London: By W. Bentley, for E. Dod

& N. Ekins, 1650. (S.T.C. 4938)

——— [Anr. ed.]. London: By W. Bentley, for J. Williams, 1650. (S.T.C.

4939)

Le reading del mon Seignior Coke: sur le statute de 27. E. I. [1299], appelle le

statute de Finibus Levatis. London: Excudebat T. R., sumptibus G. Lee, D.

Pakeman & G. Bedell, 1662. (S.T.C. 4943)

England’s Independency upon the Papal Power Historically and Judicially Stated

by Sr. John Davis . . . and by Sr. Edward Coke . . . in Two Reports, Selected

from their Greater Volumes. pref. by Sir John Pettus. London: by E. Flesher,

J. Streater and H. Twyford, assigns of R. and E. Atkins, 1674.

Magna Charta: Made in the Ninth Year of K. Henry the Third, and Conﬁrmed

by K. Edward the First, in the Twenty-Eighth Year of His Reign with Some

Short, but Necessary Observations from the L. Chief Just. Coke’s Comments

upon it, trans., Edward Cooke. London: by the assigns of R. and E. Atkins,

for T. Simmons, 1680.

The Great Charter of the Forest, Declaring the Liberties of it Made at Westminster,

the Tenth of February, in the Ninth Year of Henry the Third, Anno Dom.

1224, and Conﬁrmed in the Eight and Twentieth of Edward the First, Anno

Dom. 1299: with Some Short Observations Taken out of the Lord Chief Justice

Coke’s Fourth Institutes of the Courts of the Forests. London: Printed by the

assignees of R. and E. Atkins for John Kidgell, etc., 1680.

A Declaration of the Libertyes of the English Nation, Principally with Respect to

Forests. London: Printed for Richard Janeway, etc., 1681.

Argumentum anti-Normannicum: or an Argument. London: By J. Darby, for

M. Keinton, J. Robinson, S. Sprint, 1682. (S.T.C. 4907)

Editions of Coke’s Works lxxxvii

——— [Anr. ed.]. London: By J. Darby, 1682. (S.T.C. 4907A)

The Famous Case of Robert Calvin, A Scots-man: as Contain’d in the Reports of

Sir Edward Coke, Lord Chief Justice of the Common-pleas, and as it was Argued

in Westminster-Hall by All the Judges of England in the Reign of King

James VI of Scotland and I of England. Edinburgh: James Watson, 1705.

A Vindication of the Lord Chancellor Bacon, from the aspersion of injustice, cast

upon him by Mr. Wraynham: containing the said Mr. Wraynham’s represen-

tation of his own case, and the sentence pronounced against him. Together with

the learned speeches of the judges, Hubbert, Coke, and other sages in the law.

Archbishop Aboot, and other reverend prelates. The Lord Chamberlain, Earl

of Arundel, Sir Fulk Crovill, and other noble peers. Now ﬁrst published from

the original manuscript. London: For J. Peele, 1725.

The Corner Stone of the British Constitution Or, the Golden Passage in . . . Magna

Charta, with Lord Coke’s Remarks. From Second Institute. London: 1789.

Mottoes and Crests of Sir Edward Coke

The inscription on rings, which Edward Coke distributed according to

custom to commemorate his being called to become Serjeant at Law:

Lex est tutissima cassis

(Law is the safest helmet)

This is a shorthand for a maxim: “Law is the safest helmet; under the shield

of law no one is deceived.”

His Crest:

His Motto:

Prudens qui patiens

(The prudent man is patient)

This is an abbreviated form of the fuller motto:

Prudens qui patiens etenim durissima coquit

(The prudent man is a patient man, which aids him in the digestion)

The motto is a pun built on the similarity of Coke’s name to the Latin for

“digestion,” which also accounts for his choice of the ostrich as an heraldic

animal. The ostrich was, at that time, believed to have a digestion so strong

that it could eat iron, which explains the horseshoe in its beak.

Reports



Part One of the Reports

The Reports are a monumental achievement. Their scope, detail, and orga-

nization, particularly in the volumes from four to eleven, created a platform

from which the whole organization of the Common Law could be perceived.

The emphasis in early volumes of cases in which Coke took part and of cases

that were particularly prominent in settling issues of the law governing in-

heritance and land ownership increased the fame both of Coke and of his

Reports. For centuries, lawyers of the common law have referred to all reports

printed under the name of the reporter by the name of that person, save one.

Coke’s Reports have maintained such a place in the Common Law that they

alone are referred to as “The Reports.”

The First Part of Sir Edward’s Reports was published in 1600. It was

originally entitled Les Reports De Edvvard Coke L’ Attorney Generall Le Roigne

De Divers Resolutions, & Judgements Donnes Avec Graund Deliberation, per Les

Tres Reverendes Judges, & Sages De La Ley, De Cases & Matters En Ley Queux

Ne Fueront Unques Resolve, Ou Ajuges Par Devant, & Les Raisons, & Causes

Des Dits Resolutions & Judgements, which is to say in English The Reports of

Edward Coke, Attorney General of the Realm of DiversResolutions andJudgements

given upon Solemn Arguments, and with great Deliberation, and Conference of

the most Reverend Judges, and Sages of the Law; of Cases in Law which never

were Resolved or Adjudged Before; And the Reasons and Causes of the Said Res-

olutions and Judgements. Coke had circulated manuscript reports of some cases

prior to the printing. The whole of the cases in this part presents a series of

issues in the control, transfer, and obligations arising from the ownership of

property, particularly as these issues had been altered by acts of Parliament,

or were limited by ancient rules of the Common Law. There is a considerable

emphasis on the style and content of pleading, or its effect on the dispute,

and Coke reprinted some of the very extensive pleadings ﬁled in connection

with many of the cases.

Part One of the Reports4

The Preface to the Reader.

Nothing is or can bee so ﬁxed in mind, or fastened in memorie, but in short

time is or may bee loosened out of the one, and by little and little quite lost

out of the other: It is therefore necessarie that memorable things should be

committed to writing (the witnesse of times, the light and the life of trueth)

and not wholly betaken to slippery memorie which seldome yeeldeth a certain

reckoning: And herein our present time is of all that ever was to future posterity

the most ungratefull; For they of former (though not of such ﬂorishing time)

to the great beneﬁt of themselves, of us, and our posterity, have faithfully and

carefully registred in Bookes, aswell the sayings as the doings which were in

their time worthie of note and observation. For omitting others, and taking

one example for all, howe carefully have those of our profession in former

times reported to ages succeeding, the Opinions, Censures, and Judgements

of their reverend Judges and Sages of the Common Lawes: which if they had

silenced and not set forth in writing, certainely as their bodies in the bowells

of the earth are long agoe consumed, so had their grave Opinions, Censures,

and Judgements been with them long sithence wasted and worne away with

the worme of oblivion: But wee, as justly to bee blamed, as the thing it selfe

to bee bewayled, having greater cause, are lesse carefull, having better opor-

tunity, are lesse occasioned, and being in greater necessitie, are of all others

the most negligent, whom neither the excellencie and perfection of knowledge,

a thing most pleasant, nor the practise thereof in furtherance of Justice, a thing

most proﬁtable (although one great learned and grave man

hath made an

enterance) can among so many in this ﬂourishing spring time of knowledge

move any other to follow his example: The neglect whereof is in mine opinion

many waies dangerous, For I have often observed, that for want of a true and

certain Report the case that hath been adjudged standing upon the racke of

manie running Reports (especially of such as understood not the state of the

Question) hath been so diversly drawne out, as many times the true parts of

the case have been disordered & disjointed, and most commonly the right

reason & rule of the Judges utterly mistaken. Hereout have sprung many

absurd & strange opinions, which being caried about in a common charme,

& fathered on grave & reverend Judges, many times with the multitude, &

1. Edmundus Plowden.

Preface 5

sometimes with the learned receive such allowance, as either beguile or bedasil

their conceits & judgements. Therfore as I allow not of those that make mem-

ory their storehouse, for at their greatest need they shall want of their store;

so I like not of those that stuffe their studies with wandring & masterlesse

Reports, for they shall ﬁnd them too soone to lead them to error. In troth,

reading, hearing, conference, meditation, & recordation, are necessary I con-

fesse to the knowledge of the common Law, because it consisteth upon so

many, & almost inﬁnite particulars: but an orderly observation in writing is

most requisite of them all; for reading without hearing is darke and irksome,

& hearing without reading is slipperie and uncertaine, neither of them truly

yeeld seasonable fruit without conference, nor both of them with conference,

without meditation & recordation, nor all of them together without due and

orderly observation: Scribe sapientiam tempore vacuitatis tuae.

And yet he that

at length by these meanes shall attaine to be learned, when he shall leave them

off quite for his gaine, or his ease, so one shall he (I warrant him) lose a great

part of his learning: Therefore as I allow not to the Student any discontinuance

at all (for he shall lose more in a month than he shall recover in many:) So

doe I commend perseverance to all, as to each of these meanes an inseparable

incident. I have sithence the xxii. yeere of her Majesties Raigne, which is now

xx. yeeres compleat, observed the true reasons as neere as I could, of such

matters in Law (wherein I was of Councell, & acquainted with the estate of

the Question) as have been adjudged upon great & mature deliberation; And

as I never meant (as many have found) to keepe them so secret for mine owne

private use, as to denie the request of any friend to have either view or copy

of any of them; So til of late I never could be perswaded (as many can witnes)

to make them so publique, as by any intreaty to commit them to print: But

when I considered how by her Majesties princely care and choice, her Seates

of Justice have beene ever for the due execution of her Lawes, furnished with

Judges of such excellent knowledge and wisdome (whereunto they have at-

tained in this fruitfull spring time of her blessed raigne) as I feare that suc-

ceeding ages shall not affoord successors equall unto them, I have adventured

to publish certaine of their resolutions (in such sort as my little leasure would

permit) for the helpe of their memory who heard them, and perfectly knew

them, for the instruction of others who knew them not, but imperfectly heard

2. [Ed.: Leisure gives the scribe the chance to acquire wisdom. (Taken from Ecclesiasticus 38:25.)]

Part One of the Reports6

of them, and lastly, for the common good, (for that is my chiefe purpose) in

quieting & establishing of the possessions of many in these generall cases,

wherein there hath bin such variety of opinions. In these Reports I have (of

purpose) not observed one methode, to the end that in some other Edition

(if God so please) I may follow the forme that the Learned shall allowe of,

and will sequester mine opinion: For it may be I should preferre those Reports

which are lesse paineful, more compendious, and yet (perhaps) no lesse prof-

itable. I have added the pleadings at large: as well for the warrant, and better

understanding of the cases and matters in Law, as for the better instruction

of the studious Reader in good pleading, which Mast. Littleton saith

is one

of the most honorable, lawdable, and proﬁtable things in the Law: I wish the

continuances had bene omitted, and yet some of them also are not without

their fruite. To the Reader mine advise is, that in reading of these or any new

Reports, hee neglect not in any case the reading of the old Books of yeares

reported in former ages, for assuredly out of the old ﬁelds must spring and

grow the new corne, And so I conclude with the Poet:

Cum tua non edas hiis utere & annue Lector:

Carpere vel noli nostra, vel ede tua.

Beneˇ vale.

Shelley’s Case.

(1581) Trinity Term, 23 Elizabeth I

In the Court of King’s Bench, before all the Justices of England.

First Published in the Reports, volume 1, page 93b.*

Ed.: Edward Shelley and his wife Joan were tenants in special tail of a very

long-term lease for years, which is to say that they held the right to the

land under lease for life, although that right would go to their legal children

living at their death and on to their children and so forth either until there

3. [Ed.: Later editions here note a reference to Littleton §534 and 1st Institute, pp. 303, 332b.]

4. [Ed.: Since, reader, you do not publish your own, use and approve these: either do not carp at ours

or else publish your own. (Allusion to Martial, Epigrams, 1.91.2.)]

5. [Ed.: Farewell.]

*[Ed.: Coke also reports the pleadings, commencing in volume one at page 88b.]

Shelley’s Case 7

was a failure of issue (which is to say that the current holder of the lease

died and there were no children to take [in which case the lands reverted

to Edward or his successors]), or until the lease ran out. Edward and Joan

had two sons, Henry and Richard. Joan died. Henry married and had a

daughter, Mary, and his wife had conceived a second child, who would be

called Henry. Henry the father died before the Henry the younger was born

and before his father Edward had died. Edward issued an indenture, or

land transfer document, that would recover the old reversion of the fee tail,

give the estate to himself for his life, then give it to some people out of the

family for 24 years, and then give it to the heirs male of his body lawfully

begotten (Edward’s legitimate sons or their legitimate sons and so on), with

reversion in the event of a failure of issue to the heirs male of the body of

John Shelley and of others. Edward died the morning before the procedure

to recover the whole interest and enter the indenture was to be completed.

Richard, the younger son of Edward, leased the land to a fellow named

Wolfe. Henry the younger (the grandson of Edward and nephew of Rich-

ard) was born, and lawyers in his name threw Wolfe off the land. Besides

the procedural difﬁculties of whether the action of recovery was good (it

was) and whether Henry the younger had an interest (he did), the argument

turned on whether Edward’s grant in tail was any good; if all of its clauses

were in force, Richard could have made his lease. The court ruled that

Edward’s grant was of an interest for life to Edward with a remainder to

Edward’s heirs, which amounted to giving himself the whole of the estate,

giving the fee tail to himself, thus extinguishing all of the later interests.

Henry won.

Richard’s interests, in Wolfe, were represented by three serjeants; Henry’s

interests were represented by Popham, who was then the Solicitor General,

as well as Cowper and Coke. The case was heard by the entire bench, the

judges of Chancery, the Queen’s Bench, the Common Pleas, and the Ex-

chequor. There is considerable discussion of the nature of a grant, the con-

struction of words of a grant, and the vesting of interests in litigants at law.

This case has become famous as the origin of the rule now understood that

a grant of a life estate to one person, coupled with the grant of a remainder

in that person’s heirs, becomes a single estate in fee simple absolute. This

rule, here advocated by Coke, was a deliberate attempt by the courts to

limit feudal restraints on the transfer of land.

Part One of the Reports8

Nicholas Wolfe brought an ejectione ﬁrmae

of certain land in B. in the

county of Sussex, against Henry Shelley, Esq. defendant, and declared on a

lease by Richard Shelley, Esq. to which the defendant pleaded not guilty. And

a special verdict was found to the effect following, viz. that Edward Shelley

and Joan his wife were seised of the manor of Barhamwick, whereof the said

land, wherein the said ejectment was supposed, was and is parcel, in special

tail, that is to say, to them and to the heirs of their two bodies lawfully begotten,

and shews how, the remainder to the said Edward and his heirs; and it was

further found that the said Edward and Joan had issue Henry their eldest son,

and the said Richard their younger son, and afterwards the said Joan died,

and the said Henry having issue Mary yet living, died in the life of the said

Edward, his wife then big with child of the said Henry the now defendant.

And afterwards the said Edward Shelley by indenture bearing date the 25th

of September, in the ﬁrst and second year of the late King and Queen Philip

and Mary, and ﬁrst delivered the sixth day of October following, did covenant

with Cowper and Martin to suffer a recovery of the said manor, amongst other

things: and that the said recovery should be to the use of the said Edward

Shelley for the term of his life, without impeachment of waste; and after his

decease to the use of Mr. Caril and others for 24 years, and after the said 24

years ended, then to the use of the heirs male of the body of the said Edward

Shelley lawfully begotten, and of the heirs male of the body of such heirs male

lawfully begotten; and for default of such issue, to the use of the heirs male

of the body of John Shelley of Michael Grove, &c. It was also found, that

the said Edward Shelley, the 9th day of | October, being the ﬁrst day of the

term, between the hours of ﬁve and six in the morning died, and afterwards

the recovery passed the same day with a voucher over, and immediately after

judgment given, an habere facias seisinam

was awarded, the wife of the said

Henry Shelley being at that time great with child with the defendant. And

afterwards, that is to say, the 19th day of October next following the recovery

was executed; and afterwards the fourth day of December then next following,

the wife of the said Henry was delivered of the said Henry now defendant.

And it was likewise found that the said manor was in lease for years at the

time of the said judgment and recovery, by force of a lease made long before

1. [Ed.: Ejection from the land. (A writ to commence a suit at law for trespass.)]

2. [Ed.: That you cause to have seisin. (The writ of execution in real actions.)]

[94 a]

Shelley’s Case 9

the original writ purchased, upon which the said recovery was had: and that

the said Richard Shelley, second son of the said Edward Shelley, and uncle

to the said defendant, entered and made a lease to the said Nicholas Wolfe

now plaintiff in the ejectione ﬁrmae; and that the said Henry Shelley the de-

fendant entered upon the said Nicholas Wolfe and did eject him. And upon

the whole matter aforesaid the Jurors pray the advice and judgment of the

Court, if the entry of the said Henry the defendant was lawful or not; and

if, by the judgment of the Court, the entry of the said Henry should be deemed

unlawful, then the jury found that the defendant was guilty, and assessed

damages: and if the entry of the defendant should be deemed by the Court

to be lawful, then they found for the defendant that he was not guilty, &c.

This case was divided into four principal questions: whereof

1. The ﬁrst was, if tenant in tail suffers a common recovery with a voucher

over, and dies before execution, if execution may be sued against the issue in

tail.

2. The second, if tenant in tail makes a lease for years, and afterwards suffers

a common recovery, if the reversion be presently by judgment of law in the

recoveror, before any execution sued.

3. The third, if tenant in tail having issue two sons, and the elder dies in

the life-time of his father, his wife privement enseint

with a son, and then

tenant in tail suffers a common recovery to the use of himself for term of his

life, and after his death to the use of A. and C. for 24 years, and after to the

use of the heirs male of his body lawfully begotten, and of the heirs male of

the body of such heirs male lawfully begotten, and presently after judgment

an habere facias seisinam is awarded, and before the execution, that is to say,

between ﬁve and six in the morning of the same day, in | which the recovery

was suffered, tenant in tail dies, and after his death and before the birth of

the son of the elder son, the recovery is executed, by force whereof Richard,

the uncle, enters, and after the son of the elder son is born, if his entry

upon the uncle be lawful or not.

4. The fourth and last point, if the uncle in this case may take as a purchaser,

forasmuch as the elder son had a daughter which was heir general and right

heir of Edward Shelley, at the time of the execution of the recovery. And this

3. [Ed.: secretly pregnant (The 1658 edition translates the phrase into the text as ‘young with child.’

Later editions restore the French term.)]

[94 b]

Part One of the Reports10

case was argued by Anderson the Queen’s Serjeant, and Gawdy and Fenner,

Serjeants, for the plaintiff, and by Popham, Solicitor-General, Cowper, and

Coke, for the defendant.

And as to the ﬁrst point, the plaintiff’s counsel argued, that execution might

be sued against the issue in tail; and their principal reason was, because the

judgment given against the tenant in tail, and the judgment for the tenant in

tail to have in value against the vouchee, bound the right of the estate-tail,

and the issue in tail shall not avoid it by the Statute de Donis Conditionalibus,

because the law adjudgeth that, in respect of the intended recompense, the

issue in tail was not prejudiced: as if tenant in tail grant a rent for the release

of one who hath a right to the land, it shall bind the issue in tail, because it

is for the beneﬁt of the issue, and so not restrained by the said act, as it is

agreed in 44 Edw. 3. 21b. Octavian Lumbard’s Case. And if the recovery, upon

which execution is had in the life of the tenant in tail, shall not be a bar to

the issue, it would be mischievous and a great impeachment to common as-

surances of lands. And further, it was said, that the right of the estate-tail was

bound by the judgment, and not by the execution; for if the right of the estate-

tail was not bound by the judgment, it could not be bound or barred by the

execution had afterwards.

As to the second point, they conceived, that it was not any question, but

that the recoverors had not the reversion presently by the judgment, not-

withstanding the lands were in lease for years; for they said that the judgment

was, that the demandant should recover seisin of the land which was but

executory, and could not be executed until execution, entry, or claim. As if

a common or reversion, or any other thing which lieth in grant be granted

upon condition, if the condition be broken, the thing granted is not in the

grantor before claim, for it was said, that when a man may enter, or claim,

the law will not adjudge him in possession until entry or claim.

As to the third point, which was the great doubt of the case, they argued,

that the said Richard, the uncle, was in by purchase, & ex consequenti

the

entry of the defendant upon him was not lawful; and this in effect was their

principal reason:

| Argument. viz., that which originally vests in the heir, and was not in the

ancestor, vests in the heir by purchase.

4. [Ed.: and as a consequence.]

[95 a]

Shelley’s Case 11

But this use originally vests in Richard Shelley, and never was [vested] in

Edward Shelley.

And therefore the use vests in Richard Shelley by purchase.

And they said, that it was manifest that the use never vested in Edward

Shelley, for before the recovery executed no use could be raised, for the use

ought to be raised out of the estate of the recoverors, but the recovery was

not executed in the life of Edward Shelley, and therefore no use could rise

during his life. And Serjeant Anderson said, it was impossible that Richard

Shelley should be in by descent, because no right, title, action, use, or other

thing touching the uses limited by the said indentures did descend to Richard,

but only a thing intended to him, which intent in his life received no per-

fection; and therefore this case was not like any case where a right, title, action,

use, or other thing descendeth from the ancestor to the heir, but is like the

case in 5 Edw. 4. 6a. where the wife consents to a ravisher, having issue a

daughter, the daughter enters by the statute of 6 Rich. 2. a son is afterwards

born, he shall never divest it, for it vested in the daughter by purchase; so is

the case agreed in 9 Hen. 7. 25a. If a lease be made to one for life, the remainder

to the right heirs of J. S., if J. S. dies having a daughter, his wife with child

with a son, the daughter claims it by purchase, and therefore the son born

after shall never divest it; but they relied principally upon the case in 9 Hen.

7. 25a. that if a condition descends to the daughter, and she enters for the

condition broken, the son born afterwards shall never enter upon her, and

yet there she is in by descent, and the title of her entry, that is to say, the

condition, she hath as heir: and yet because she was the ﬁrst in whom it vested,

the son born after shall not divest it, which is a stronger case than our case

at the Bar.

And further it was said by the plaintiff’s counsel, that although the recovery

had been executed in the life of Edward Shelley, yet ought the heir male to

take by purchase; for they said, that the manner of the limitation of the uses

is to be observed in this case, which is ﬁrst to Edward Shelley for the term

of his life, and after his death to the use of others for the term of 24 years,

and after the 24 years ended, then to the use of the heirs male of the body of

the said Edward Shelley, | lawfully begotten, and of the heirs male of the body

of the said heirs male lawfully begotten; in which case they said, that if the

heirs male of the body of Edward Shelley should be words of limitation, then

the subsequent words, viz. and of the heirs male of the body of the said heirs

male lawfully begotten, would be void: for words of limitation cannot be added

[95 b]

Part One of the Reports12

and joined to words of limitation, but to words of purchase. And they said,

that forasmuch as those words, heirs males of the body of Edward Shelley,

might be words of purchase, that in this case the law will construe and take

them as words of purchase, for otherwise the said subsequent words, “and of

the heirs male of their bodies,” would be void. And such construction is always

to be made of a deed that all the words (if possible) agreeable to reason and

conformable to law, may take effect according to the intent of the parties

without rejecting of any, or by any construction to make them void. And

therefore Anderson put this case, if a man makes a feoffment in fee, to the

use of himself for life, and after his decease to the use of his heirs, in this case

the fee-simple executed; but in the same case, if the limitation be to the use

of himself for life, and after his decease to the use of his heirs, and of their

heirs female of their bodies, in this case these words “his heirs” are words of

purchase, and not of limitation, for then the subsequent words “and of their

heirs female of their bodies” would be void. So they concluded this point,

ﬁrst that no use could rise until execution sued, no execution was sued in the

life of Edward Shelley, and then it ﬁrst vested in Richard as a purchaser before

the son of the elder son was born: and for the latter reason, admitting the

recovery had been executed, notwithstanding the heirs male of the body of

Edward Shelley should take by purchase, and so quacunque via data,

they

concluded, that the use ﬁrst settled in Richard Shelley as a mere purchaser.

And as to the latter point, which in effect (admitting, as hath been said, that

the said words were words of purchase) was, that a lease for life is made to

A. the remainder to the heirs male of the body of Edward Shelley, if in this

case Richard may take this estate-tail by purchase as heir male, notwithstanding

his elder brother had issue a daughter which is living, and who was his heir

general; they said there was no difference as to that, where an estate-tail is

limited by gift executed, and when by way of remainder, nor when the heir

male of the body claims by descent, nor when by purchase, for if an estate

had been made to Edward Shelley, and to the heirs male of his body, in that

case | Richard Shelley without doubt should have had the land by descent,

and that by a construction on the Statute de Donis conditionalibus to fulﬁl the

mind and intent of the donor.

And so it is, if I give lands to a man, and to his heirs female, and the donee

5. [Ed.: whichever way you take it,]

[96 a]

Shelley’s Case 13

hath issue male and female, although the female be not heir general, yet she

is heir special to claim per formam doni.

And this was in effect the substance

of the three arguments published and delivered at large on the plaintiff’s part

before the Justices of the Queen’s Bench in Hilary and Easter terms, in the

23d year of the reign of Queen Elizabeth. And on the defendant’s part it was

argued contrary. As to the ﬁrst point it was argued, that execution could not

be sued against the issue in tail; and therefore as it hath been agreed, that the

judgment only against the tenant in tail did not bind, but the judgment to

have in recompense, sequitur a concessis,

that the issue in tail cannot be barred:

and for proof that in this case the issue in tail could not have any recompense:

ﬁrst it was said, that if execution could not be sued against the issue in tail,

then the issue in tail could not take any beneﬁt of the recompense. For it is

agreed in 17 Edw. 2. title Recovery in Value, Fitz. 33. 1 Edw. 3. fo. 12. that he

who vouches shall never have execution against the vouchee before execution

sued against himself; so that the judgment to recover over in value is not

material (as the case is) unless execution may be sued against the issue, which

cannot be in this case. For he who is in of an estate in possession, by title

paramount a recovery, shall not be bound by the same recovery; but the issue

in tail in our case is in of an estate in possession, which he had by title par-

amount the recovery, and therefore the issue in tail shall not be bound by the

recovery. In proof of the ﬁrst proposition, it hath been adjudged in 28

Hen. 8. reported by Serjeant Bendloes, which case began 26 Hen. 8. in the

book at large, where the case was, that an executor having judgment to recover

a debt due to the testator, and dying intestate before execution, and the Or-

dinary committing the administration of the ﬁrst testator to one, that the

administrator could not sue execution upon that recovery, because he deriveth

his interest from, and represents the person of the testator, and so before the

recovery. So it is, if there be two joint-tenants, and one makes a lease for years,

rendering rent, the lessor dies, the other shall not have the rent; because he

claims by the ﬁrst feoffor, which is paramount the lease and the reservation.

So if tenant for life makes a lease for years, reserving rent, and afterwards

surrenders to him in the reversion, not being in by force of his ancient re-

version, he cannot have the rent newly reserved. And in proof that the issue

6. [Ed.: by the form of the gift.]

7. [Ed.: it follows from these premises, (literally, “from the things granted.”)]

Part One of the Reports14

in tail was in by a title paramount | the recovery, he said, that the issue in tail

shall avoid all charges, leases, and other incumbrances made by his ancestor,

because he claims per formam doni. And if tenant in fee simple makes a lease

for life, and suffers a recovery, he and his heirs are for ever concluded; but he

said, if tenant in tail be of a reversion expectant on an estate for life, and he

suffers a recovery, and hath judgment to recover over in value, yet his issue

shall avoid the recovery, for he shall not be estopped, because he claims in per

formam doni: but if execution had been sued in the life of tenant in tail, then

forasmuch as the estate-tail doth not descend to the issue; and forasmuch as

then he may sue execution over, it is good reason to bar the estate-tail; but

if the issue in tail be in by lawful descent in possession of the estate-tail before

the recovery [is] executed, then the law seems to be otherwise. Octavian Lum-

bard’s Case in 44 Edw. 3. which hath been cited on the other side, was not

against this opinion, for there the issue in tail reaped the beneﬁt of the release

made to his ancestor; but in our case, the issue in tail being in of an estate-

tail paramount the recovery, cannot take beneﬁt of the recompense over. And

wherefore should not the issue in tail in this case, be at liberty to chuse whether

he will take the estate-tail, or otherwise to admit execution to be sued against

him, and to sue execution over in value, as well as in 14 Hen. 6. fol. 2. in the

case of exchange, in which case although assets of greater value descend to

him than the land in tail, yet he may chuse to have the one or the other at

his election.

And if tenant in tail be disseised, and levies a ﬁne to the disseisor without

warranty and dies, if the issue in tail enters, and is seised by force of the tail

before all the proclamations are made, although the proclamations be after-

wards made, yet that does not bar the issue: So if tenant in tail levies a ﬁne

and disseises the conusee, and dies before all the proclamations are made, and

after the proclamations in the time of the issue in tail pass, yet the issue is

not bound thereby, by the statute of 32 Hen. 8. and yet the words of the Act

are, that all ﬁnes after proclamations, &c. shall bar, &c. But it hath always

been held, if the issue in tail be remitted and seised by force of the tail before

the bar be complete, that is to say, before the proclamation be passed, the

issue is not bound; so in this case before execution sued, the issue in tail is

seised by force of the tail, and in per formam doni before the bar is complete,

and therefore the execution cannot be sued against him, nor can any bar after

the death of his father be made to the estate tail which is descended to him

in possession. And it is agreed in 7 Edw. 3. 335. that if a disseisor at the Common

[96 b]

Shelley’s Case 15

Law before the Statute | of Non-claim, had levied a ﬁne, or suffered judgment

in a writ of right, until execution sued, they were not bars, for the year shall

be accounted after the transmutation of the possession by execution of the

ﬁne or recovery; and so it is said in Stowel’s Case, Plow. Com. 357e.; and the

books in 28 Ass. pl. 32. 7 Hen. 4. fol. 17. 17b. Plow. Com. 55b. 12 Edw. 4. fol.

20a. were cited, that execution upon a feigned recovery against the father,

cannot be sued against the issue in tail.

To the second point they argued, that forasmuch as the land was in lease

for years, that the recovery was executed by judgment of law presently after

the judgment. And a difference was taken when the lands were in the possession

of the tenant at the time of the judgment, and when the lands were in lease

for years. And their reason of the difference was, because the recoverors in the

one case may sue execution, and in the other case may not; and because the

recoverors cannot sue execution, the law will therefore adjudge them in ex-

ecution presently; the reason thereof is, that otherwise the lessee during the

term might commit waste, and would be dispunishable by the recoveror, but

if the recoverer may enter or sue execution, then he may prevent it. And

therefore, if a ﬁne sur cognizance de droit tantum

be levied of land in pos-

session, the cognizee hath nothing before entry, as it is agreed 48 Edw. 3. fol.

15b. 10 Hen. 6. fol. 16b. and Littl. in his Chapter of Attornment fol. 131b.:

but if a ﬁne sur cognizance de droit tantum be levied of a reversion upon an

estate for life or years, or of a seignory, or any other thing which lieth in grant,

there the reversion, or thing which lieth in grant, passeth presently. And it

was said, that a common recovery is in nature of a common conveyance, and

so it appears, that a reversion, or thing which lieth in grant, is more easily

transferred from one person to another, than an estate of freehold in possession.

A condition is executory as well as a judgment, but if the feoffor cannot enter,

there the law will adjudge him in possession presently. And therefore it is

holden in 20 Hen. 7. fol. 4b. 20 Edw. 4. fol. 19a. & 22 Edw. 4. that if the

condition be collateral, and the feoffee makes a lease back again for years to

the feoffor, and then the condition is broken, the law shall adjudge the feoffor

in of a present fee-simple, because he cannot enter; and yet in that case he

8. [Ed.: ‘upon acknowledgment of right’ only (a term of art for the form of ﬁne, or judicial proceeding

to sue to convey land, and sometimes to alter the nature of a prior grant; in particular this form was used

to convey an estate in reversion or remainder.)]

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may say, that forasmuch as he cannot enter, therefore he ought to make claim;

yet the law in that case requires no claim to be made; but, in the case before,

it is otherwise, where no lease for years had been made back again, and the

reason may be for the mischief before-mentioned.

The case of Littleton fol. 84. was likewise cited, where Littleton is of opinion,

that in the case of a condition, the fee-simple shall be revested again in the

lessor, because he cannot enter, and the Law will | adjudge him in possession

without entry or claim. It was likewise said, that those things which lie in

grant, as in the case before remembered of the ﬁne, they pass to the conusee

immediately, by the ﬁne levied: so in the case of a common recovery (which

is now become a common assurance and conveyance) such things, which lie

in grant, are in the recoveror by the judgment. And therefore, there are some

opinions in the Books in 22 Ass. pl. 84. 45 Edw. 3. fol. 26b. & 30 Edw. 3. fol.

33. that if a man hath judgment to recover a rent, or common, or any thing

which lieth in grant, there the thing so recovered is in the recoveror by the

judgment, for the Books say, that the demandant is in seisin immediately by

the judgment. And they cited the case in 27 Hen. 8. fol. 7a. which is direct

in the point, that the recovery is executed immediately by the judgment; the

land being in lease for years. So they said, ﬁrst, that execution could not be

sued against issue in tail: secondly, if it was necessary that execution should

be had in the life of Edward Shelley, that it was executed by the judgment of

the law: And if the judgment was executed by operation of the law, then the

estate-tail to his heirs male of his body was in Edward Shelley, andconsequently

the entry of the defendant was lawful without question.

But for the argument of the third point, [which was the great doubt in the

case,]

admitting the Law in both the said points to be against the defendant,

that is to say, that execution might be sued against the issue in tail; and that

the recovery was not executed in the life of Edward Shelley, but after his death,

and before the defendant was born: yet the defendant’s counsel argued that

the defendant’s entry was lawful. The ﬁrst reason in effect was as followeth:

When the Law prescribes a means to perfect or settle any right or estate, if

by the act of God, this means in some circumstances (as in our case in time)

becomes impossible, yet no party who was to have received beneﬁt, if the

means had been, with all circumstances, executed, shall receive any prejudice

9. [Ed.: This aside was omitted from the 1658 edition; it had been restored by 1793.]

[97 b]

Shelley’s Case 17

for not executing it in such circumstance which became impossible by the act

of God, if every thing be performed without laches that the parties might

perform; for it would be unreasonable that those things which are inevitable

by the act of God, which no industry can avoid, nor policy prevent, should

be construed to the prejudice of any person in whom there was no laches.

And therefore the prescript Rule of Law is, that although a man shall not be

tenant by the curtesy without actual seisin; yet of a rent, or of an advowson,

if the wife dies before the rent-day, or before the avoidance, he shall be tenant

by the curtesy, as it is agreed in 7 Edw. 3. | 66a, 66b. & 3 Hen. 7. 5b. for by

the act of God it is become impossible for him to have actual possession. Also,

if lessee for the term of another man’s life, be disseised of certain lands, and

the disseisor takes the proﬁts of them, now if the disseisee will recover the

mean proﬁts, the means which the Law prescribes for the same is, That the

tenant for the other man’s life shall re-enter, and then he shall recover all

the mean proﬁts in an action of trespass; but if the means become impossible

by the act of God, by the death of the cestuy que vie,

so that he cannot re-

enter, then he shall have an action of trespass without any re-entry, because

the means is become impossible by the act of God, viz. the re-entry, as it is

held in 38 Hen. 6. fol. 28e. Also, if a lessee covenants to leave a wood in as

good plight as the wood was at the time of the lease, and afterwards the trees

are blown down by tempest, he is discharged of his covenant, quia impotent’

excusat legem,

as it is held in 40 Edw. 3. 6a. So if the father be enfeoffed with

warranty to him and to his heirs, and afterwards the father enfeoff his son

and heir apparent with warranty, and afterwards dies; now in regard the act

of God hath destroyed the warranty between the father and the son, the son

shall vouch as heir, although he is in by purchase, because the act of God hath

determined the warranty between the father and the son, as it is adjudged in

43 Edw. 3. 23b. & 30 Edw. 3. 22. So in this case, when Edward Shelley died

the morning of the same day that judgment was given, immediately upon the

judgment, the recoverors sued forth an habere fac’ seisinam, so that no laches

was in any party, but it became impossible by the act of God, that execution

could be had in the life of Edward Shelley; and therefore execution being had

after his decease, shall not prejudice the son born after, who at that time was

10. [Ed.: The person whose life measures the duration of the grant, literally, “he for whose life.”]

11. [Ed.: because impotence (i.e., powerlessness) excuses from the law,]

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Part One of the Reports18

in utero matris.

The second reason was, because the use vested in Richard

Shelley although not directly by descent as to have his age, or to toll an entry,

&c. yet in the nature and degree of a descent by reason of the original act

begun in the life of the ancestor; and their reason, in substance, was to this

purpose. Where the heir takes any thing which might have vested in the an-

cestor, the heir should be in by descent; [then, although it ﬁrst vested in the

heir and never in the ancestor, yet the heir shall take it in the nature and course

of a descent;]

but in the case here the use might have vested in Edward

Shelley, and if it had vested in Edward, then Richard Shelley would have taken

it by descent, and therefore Richard, in this case ought to take this use in the

nature and course of a descent. And therefore if a ﬁne had been levied sur

cognisance de droit tantum to Edward Shelley in fee, and after, and before

execution, Edward had died, and Richard had entered before Henry was born;

now although Richard be the ﬁrst who entereth, yet forasmuch as this ﬁne

was levied to his ancestor and his | heirs, so that he claimeth by words of

limitation; and forasmuch as the ﬁrst and original act was done in the life of

the father, and because it might have vested in the ancestor, and if it had vested

in the ancestor, it had descended, for this cause Richard had taken it in course

and degree of a descent, and the entry of the defendant had been lawful upon

him. And yet, in that case, Richard should not have been in directly by descent,

either to be in ward, or to have had his age, or to have tolled the entry of one

who had right; but otherwise it is when the remainder is limited to the right

heirs of J. S., &c. for there it beginneth in the son by name of purchase, and

never could have vested in the brother, as the Book in 9 Hen. 7. 24. cited by

the other side is agreed. So in the case of ravishment, 5 Edw. 4. fol. 6. which

was cited on the other side; for in these cases, and all the others which have

been put by the other side, the estate vested originally by purchase, and no

beginning was in the life of the ancestor, which could ever have vested in the

ancestor. And 16 Edw. 3 tit. Age Br. 51. if Richard Shelley had a seignory by

descent, and afterwards the tenancy had escheated, and after the son is born,

in that case the son shall enter upon him; for although the tenancy ﬁrst vested

in him, and never was in the father, yet because the original cause, viz. the

seignory, was in the father, therefore the son shall enter upon the uncle. And

12. [Ed.: in [his] mother’s womb.]

13. [Ed.: Bracketted text omitted from the 1658 edition; it had been restored by 1793.]

[98 b]

Shelley’s Case 19

Chapman’s Case in Mr. Plowden’s new reports, fol. 284. was cited, for there

it appears, that a covenant was made with Chapman, that he would make a

lease for years to Chapman, &c. and before the lease was made Chapman

died, and then the lease was made to his executors, so that the term did ﬁrst

commence in the executors; yet forasmuch as the covenant made to the testator

was the cause of the making of the estate to the executors, for that reason the

term was assets in the executor’s hands, as well as if it had been made to the

testator himself. So in our case, although the land ﬁrst vested in Richard, yet

it vested by reason of the recovery had against Edward Shelley, and the in-

denture made by him, and therefore Richard shall be in course of descent as

well as the executors in the course of executors.

Further, admitting that Edward Shelley had exchanged certain land with

another, and the other had entered into the land of Edward Shelley, but Edward

Shelley had died before the entry, the Law is clear that the heir of Edward

Shelley may enter into the land taken in exchange if he will, and so Perkins

clearly takes it, fol. 57a.; then admitting that Richard Shelley had entered into

the land taken in exchange, now he is the ﬁrst in whom the land vests, but

because it might have vested in Edward Shelley, and because he came to it

by words of limitation, the son of the elder son born afterwards shall enter

upon him: and yet | no right, title, use, nor action descends in this case; for

at his election the exchange might have been avoided. And so it is, if a man

seised of the manor of S. covenants with another, that when J. S. shall enfeoff

him of the manor of D., then he will stand seised of the manor of S. to the

use of the covenantee and his heirs; the covenantee dies his heir within age,

J. S. enfeoffeth the covenantor; in this case it was holden in Wood’s Case, 3

Eliz. in the Court of Wards, that the heir shall be adjudged in, in course and

nature of a descent; and yet it was neither a right, title, use, nor action that

descended, but only a possibility of a use, which could neither be released nor

discharged; yet it might, if the condition had been performed, have vested in

the ancestor, and then the heir had claimed it by descent. And therefore in

that case the heir was not in by purchase, but in by course of descent. And

admitting that in all the cases which have been put, as in the case of ravishment,

and in the case of the remainder, &c. he who might ﬁrst enter dies before

entry, and the younger son enters, and afterwards the son of the elder son is

born, now it is clear, that the son of the elder son shall divest the land from

the uncle, for it might have vested in the ancestor; and so to the case which

hath been urged by the plaintiff’s counsel in 9 Hen. 7. 25. of the condition:

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Part One of the Reports20

the solicitor and Coke said, that it might be allowed for law, if the true sense

thereof be apprehended. And therefore if the condition be, that the feoffor

or his heirs pay the sum of 201. or do any act before a day certain, that they

shall re-enter, in that case if the father dies before the day of payment, and

the daughter to save the inheritance pays the money, or satisﬁes the condition;

in these cases peradventure the son shall not divest it, for if the daughter had

not performed the condition, the land had been utterly lost. And therefore,

in that case, a good argument may be made, that the daughter may detain

the land, for qui sentit onus, sentire debet & commodum.

But if the condition

was to be performed on the part of the feoffee, or broken in the life of the

feoffor, then they said the law was clearly otherwise, for the heir entering for

such condition broken shall be in ward, and have his age, and no such special

reason as in the case next before.

It was also asked, out of what fountain this use should arise, and who was

the mother that conceived this use? and the indenture answers, the recovery.

For the indentures say, that the recovery shall be to the uses, &c. Then it was

said, if the recovery be the mother which conceived this use, and the fountain

out of which the use rose; forasmuch as this recovery was had in the life of

Edward Shelley, although the use slept, and was as embrio in utero matris

until execution sued: yet the execution | being once had, the execution shall

respect the recovery and raise the use, which slept before, which use being

once awaked, or raised, takes its life and essence from the recovery which was

had in the life of Edward Shelley. And thereupon some of the defendant’s

counsel argued in this manner, The execution of every thing which is executory

always respects the original act or cause executory, and when the execution is

done, it hath relation to the thing executory, and all makes but one act or

record, although it be performed at several times: And therefore if A. by deed

indented, covenants with B., that B. shall recover against him the manor of

D. within a year next following; and that the recovery and execution thereupon

to be had within the said year, shall be had to the recoveror in tail, &c. and

after the recovery is had within the year, and the execution is sued after the

year, in this case it is clear, that although the covenant is not pursued in time

according to the precise form of it, yet the use shall be guided by the said

14. [Ed.: who bears the burden ought also to take the beneﬁt.]

15. [Ed.: an embryo in [his] mother’s womb]

[99 b]

Shelley’s Case 21

indentures: So in the same case, if the same recovery betwixt the same parties

of the same land was suffered after the year, yet if no other intervenient agree-

ment were between the parties, the recovery shall be intended to be to the

uses of the indentures. For variance in time in such case shall not subvert the

original agreement and contract of the parties. And it is held in 6 Edw. 3. 44b.

that if the presentment to a church by an usurper be in time of war and the

institution and induction, which are but as executions of the presentment be

in time of peace, yet it shall be avoided, for the Law regards the original act

& causa & origo est materia negotii.

If a man who is non compos mentis,

gives himself a mortal wound, and before he dies he becomes of sana memoria,

and afterwards dies of the same wound; in this case, although he dies of sana

memoria by reason of his own proper wound, yet because the original cause

of his death, viz. the wound was when he was non compos mentis, he shall not

be felo de se,

because the death, &c. hath relation to the original act which

was the stroke or wound; which see 22 Edw. 3. titula Corone 244. And so it

is 33 Ass. 7. Corone 210. if a servant hath an intent to kill his master, and

before execution of his intent goes out of service, and being out of service,

executes his purpose, and kills him who was his master; this is petit-treason,

for the execution doth respect the original cause, which was the malice con-

ceived when he was servant; and yet if the law should adjudge and make

construction according to the several times, then it would be plain, it would

be no petit-treason. So in our case, the execution of the use relates to the

indentures and recovery.

| It was also asked, when after that the execution was had, so that now the

use, which before slept, is raised, what thing is it that governs and directs this

use? And it is to be answered, the indentures. And what is their direction?

That the said Edward Shelley shall have it, and after his death the heirs male

of his body, so that the indentures direct the use to the heirs male of his body

by way of limitation of estate, and not by way of purchase. And from thence

this reason was collected; The indentures direct and govern the manner and

quality of the use, but the indentures direct that the heirs male of the body

16. [Ed.: and the substance of the matter lies in the cause and origin.]

17. [Ed.: not of sound mind,]

18. [Ed.: sound memory (i.e., sane)]

19. [Ed.: a suicide,]

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Part One of the Reports22

of Edward Shelley shall take it by limitation of estate, and not by name of

purchase; and therefore Richard ought to have it as heir by limitation of estate,

and not by name of purchase; for when the execution was had, the indentures

immediately guided the use to Richard, because he was at that time heir male

of the body of Edward Shelley, which Richard is not heir after the birth of

the son of the elder son. Further it was said, admitting all the matter before

would not serve for the defendant (which the defendant’s counsel held strongly

it would) yet it is to be considered, in this case, that the estate vests in Richard

by way of limitation of use and not by any conveyance by the Common Law

in possession: and therefore admit our case had been before the making of

the stat. of 27 Hen. 8., and that the recoverors had sued execution after the

death of Edward, and before the son of the elder son was born, and then the

son of the elder son had been born. In that case it was asked, which of them

should have the subpoena? And the defendant’s counsel conceived that the son

of the elder son, although the use did ﬁrst attach in the uncle, should have

the subpoena. For if the intent of Edward Shelley may appear to the Court,

that the son of the elder son should have this use, then that is the rule by

which the use is to be guided and directed. For at the Common Law the intent

of the parties was the direction of the uses, for they were only determinable,

and to be adjudged by the Chancellor who is Judge of Equity, and that in

Chancery, which is a Court of Conscience: and as Bracton saith, fol. 18. Nihil

tam conveniens est naturali aequitati quam voluntatem domini volentis rem suam

in alium transferre ratam haberi.

And therefore in proof, that uses are directed

by the intent and meaning of the parties, divers cases were cited, 31 Hen. 6.

titulo Subpoena Fitzherbert 23. Statham Conscience 1. A man being cestuy

que use, and having an only daughter, declared his intent and meaning to the

feoffees, that after his decease his daughter should have his land. And therefore

a question | arose in Chancery, whether he might revoke this limitation of the

use made to his daughter; and in arguing this case, Fortescue held, That if

cestuy que use hath issue a daughter, and being sick, declares his intent to his

feoffee, that his daughter shall have his land after his decease; and after he

recovers his health, and hath issue a son, now he said it is good conscience

that the son should have the subpoena, for he is his heir. Note the reason of

20. [Ed.: Nothing is so consonant to natural equity as that the will of an owner wishing to transfer

his property to another should be respected.]

[100 b]

Shelley’s Case 23

Fortescue, because he is his heir. And there Fortescue said, that Conscientia

dicitur a con & scio, quasi simul scire cum Deo,

that is to say, the will of God

as near as reason wills. We ﬁnd likewise in divers other cases in our books,

that the intent of the parties is the direction of uses, by a considerable and

favourable construction. And therefore it is held in 7 Hen. 6. fol. 4b. if a man

be seised of land on the part of his mother, and makes a feoffment in fee,

reserving rent to him and his heirs, in that case, by the rule of Common Law,

as Littleton says, the rent shall go to the heir on the part of the father; but if

a man be seised of lands on the part of the mother, and makes a feoffment

in fee to the use of him and his heirs, the book is directly agreed in 5 Edw.

4. fol. 7b. that this use shall not go to the heir at the Common Law, but

forasmuch as the land and living move from the part of the mother, therefore

in equity, the use which is nothing but a trust and conﬁdence, should go also

to the heirs on the part of the mother. Littleton likewise says, that a man shall

not have a fee-simple by a feoffment or grant without these words “his heirs.”

And yet the Law is plain, that if a man had before the statute of 27 Hen. 8.

bargained and sold his land for money without these words, “his heirs,” the

bargainee hath a fee-simple. And the reason is, because by the Common Law

nothing passeth from the bargainor, but a use, which is guided by the intent

of the parties, which was to convey the land wholly to the bargainee; and

forasmuch as the law intends that the bargainee paid the very value of the

land, therefore in equity, and according to the meaning of the parties, the

bargainee had the fee-simple without these words “his heirs,” as it is held in

27 Hen. 8. fol. 5. 4 Edw. 6. Br. Estates 78. 6 Edw. 6. and in the time of Hen.

8. Br. Conscience 25. So in our case, although the use ﬁrst vested in the uncle,

admitting the case to be before the stat. of 27 Hen. 8. yet seeing that the intent

of Edward Shelley, was to advance the son of his elder son, and because in

equity the general heir is to be favoured, therefore the son after born shall

have the subpoena.

Moreover the rule in Law is, that if an estate be limited to two, the one

capable, and the other not capable, he who is capable shall take the whole,

as the cases are agreed in 17 Edw. 3. fol. 29. and 18 Edw. 3. 59. If a man gives

land to one & primogenito ﬁlio,

if he hath no son | the father takes the whole:

21. [Ed.: Conscience is so called from con (with) and scio (I know), as if to say, to know together with

God,]

22. [Ed.: [his] ﬁrstborn son,]

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Part One of the Reports24

And so it is 1 lib. Ass. 11. & tempore,

Edw. 1. Taile 24. if a man gives lands

to a man, and to such a woman as shall be his wife, the man takes the whole;

but if a man makes a feoffment in fee, to the use of himself and his wife that

shall be, and afterwards he marries, his wife shall take jointly with him, as it

was held in The Lord Pawlet’s Case, 17 Eliz. Dyer 340., notwithstanding the

whole vested at ﬁrst in the husband. Also, the rule of Law is, that a remainder

cannot stand without a particular estate, and yet the Book is agreed in 37 Hen.

6. fol. 36a. that if a man makes a feoffment in fee to the use of one for life,

and after to the use of another in fee, although the particular tenant refuses,

yet the remainder is good. And so it is said in the Book in the case of a devise.

As if a man devises lands for life, the remainder in fee, and the tenant for life

refuses, yet the remainder is good: And so note, that the limitation in uses

and estates given by devises resemble one another. So the Judges there took

the construction of devises, and of estates conveyed in use to be all one, viz.

according to the meaning of the parties: And admitting in the case here, the

land had been of the custom of gavelkind,

and upon that it had been asked,

if Edward Shelley had had sundry other sons, should the elder son only have

had the whole use? surely he only should not have it, but all equally, and yet

if he had taken it by purchase, then the elder son only ought to have it. Now

the intent of Edward Shelley, is to be proved by divers circumstances apparent

in the record; ﬁrst, if Edward Shelley had intended to have given it to the

uncle, he never would have given it him by so general a name as “heir male,”

for if the recovery had been executed in the life of Edward Shelley as was fully

intended, then it had been in manner agreed, that Richard Shelley could not

have had the land, for the “heirs male” are words of limitation; or if the son

of the elder son had been born in the life of Edward Shelley, which was im-

possible for Edward Shelley to have known the contrary, for the defendant

was born within one month after his death, then out of all question the uncle

could never have had it; and therefore except you will ground upon absurdities,

the one, that Edward Shelley knew that he should die before the recovery

executed; the other, that he should die, before the birth of the son of his elder

son, which none could know but God; it must be granted, that the intent of

23. [Ed.: in the time of,]

24. [Ed.: “Gavelkind” was a Kentish land-hold by tenure for rents. It descended on the death of the

tenant to all of his sons equally, with dower to his widow of one-half rather than one-third of the lands.]

Shelley’s Case 25

Edward Shelley was to advance his elder son, and by no means to disinherit

him. Also, at the time of his death Richard Shelley was eighteen years old:

And therefore, if he intended to advance Richard, he would not have given

his lands to his trusty friends Mr. Carill and others for twenty-four years; but

without doubt he intended that the son of his eldest son should have it; and

the same moved him to devise such a term which might be ended when the

defendant should be of ﬁt age | to receive and govern his living. The reason

why the said Edward Shelley suffered the said recovery was, (as it seems)

because Mary, daughter of his elder son named in the special verdict, would

have inherited; and if the wife of his elder son had been delivered of a daughter,

then had the land gone out of his name, and therefore for the continuance

of the land in his name and family, he suffered the said recovery; and therefore

it being by way of limitation of use, the son of the elder son ought to have

it, and especially inasmuch as no rule in Law in our case is impugned, but it

stands well, as hath been proved before, with the rule of the Common Law.

And one of the defendant’s counsel said, that at the Common Law, a use being

but a trust and conﬁdence, and, as is said in 14 Hen. 8., resting only in privity

betwixt those who had notice thereof; and forasmuch as the consciences of

the feoffees and others who were trusted became too large, and would not

perform the conﬁdence reposed in them, but made feoffments upon divers

considerations to strangers not having notice of the uses, and by divers other

fraudulent devices, did deceive and defraud those to whose uses they were

seised: therefore ﬁrst was the stat. of 1 Rich. 3. made, by which authority was

given to the cestuy que use to enter and make a feoffment; But after that statute

the feoffees oftentimes did prevent the feoffment of cestuy que use by subtle

and cunning practices, yet defrauding the cestuy que use, and not discharging

the trust reposed in them; and therefore to take away all the power and means

of deceiving by the feoffees, the stat. of 27 Hen. 8. was made. And therefore

it is holden for the better opinion at this day, that for the raising of future

uses after the stat. the regress of the feoffees is not requisite, and that they

have not power to bar these future uses, for the statute hath transferred all

the estate out of them. But he said, in our case, if the suing of the execution

after the death of Edward Shelley, and before the birth of the son of the elder

son, should make the uncle have the land, then it would rest in the disposition

and pleasure of the recoverors, whom they would make to inherit; for then

it would follow, that if they enter and execute the recovery before the birth

of the son of the elder son, then the uncle should have it, and if they would

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Part One of the Reports26

not enter until after the birth of the son of the elder son, then without all

question the son of the elder son should have the land: so that by this con-

struction, the matter would lie in the breast of the recoverers who were but

instruments, and not persons in any manner trusted to settle the inheritance

in whom they pleased, which was never any part of the meaning of Edward

Shelley, and which is very absurd in reason. And it would be mischievous that

the inheritance of any man should be at the appointment and discretion of

two strangers, who were named only as instruments, and never in any manner

trusted; and it would be a | greater mischief than any was at the Common

Law. Also, as this case is, if the sheriff had executed the recovery upon the

day on which the writ of execution was sued forth, then it had been evident

that the son of the elder son should have had the land, for then had execution

in judgment of law been in the life of Edward Shelley. But by the construction

which hath been made, it would likewise be in the power of the sheriff to

settle the inheritance in whom he pleased, for if he had executed the recovery

the same day, as might have been done, or after the birth of the son of the

elder son, then the son of the elder son should have had the land; but uno

absurdo dato inﬁnita sequuntur.

And therefore for the avoidance of these

mischiefs and absurdities, the law will adjudge Richard in the land in course

and nature of a descent, and then all the mischiefs and absurdities are avoided,

and no ground or rule in the law is thwarted.

And note, the stat. of 27 Hen. 8. is, that cestuy que use shall have the pos-

session to all intents, constructions, and purposes in law, and of and in such

like estates as they had or ought to have in the use; and that he shall have the

possession after such quality, manner, form and condition, as they had before

had, or have had the use, trust, or conﬁdence; so if the uncle before the statute

had had the use, trust or conﬁdence in nature and course of a descent, yet

the son of the elder son shall divest the use, and have the subpoena: and because

the statute executes the possession after such quality, manner, form, and con-

dition, as the use, trust, or conﬁdence was in them; for these causes the pos-

session executed by the statute ought to be subject to the entry of the son of

the elder son. And therefore, if cestuy que use had issue a daughter, and died

before the stat. of 27 Hen. 8. his wife being great with child with a son, and

before the birth of the son, the statute had been made, so that the possession

25. [Ed.: allow one absurdity, and an inﬁnite number follow.]

[102 a]

Shelley’s Case 27

had ﬁrst vested by force of the statute in the daughter, yet the son born after

might enter upon her; for the daughter had the possession in the same quality

and condition as she had the use, but she had the use by descent, and subject

to be divested by the birth of the son, and therefore he ought to have the

possession by the statute in the same quality and degree, and that is in the

nature and course of descent: But in the case of descent, the son after-born

shall enter upon the daughter, and therefore the son in this case shall enter

upon the daughter; and the like construction upon the like case hath been

made before this time, therefore Justice Mountagu in Wimbishe’s Case, and

Plowden in Plowden’s Comm. fol. 56b. held that if a woman hath a jointure

made her by her husband in tail, and hath issue a daughter, being great with

child with a son, and before the birth of the son she discontinues with warranty;

now the stat. of 11 Hen. 7. saith, that such person to whom the title after the

death of such wife | doth appertain shall enter into the lands, and shall possess

and enjoy the same according to their title to the same, as if no such discon-

tinuance had been made; and therefore he held clearly, that although the

daughter after such discontinuance ﬁrst entereth, yet the son born after shall

enter upon her by reason of the words of the stat. of 11 Hen. 7. for the words

are, that she ought to enjoy the same according to her title; but her title is in

tail, and therefore after the birth of the son, he being next heir in tail, the

title of the tail shall be devolved from her to the son.

So in our case the stat. of 27 Hen. 8. saith, that cestuy que use shall have

the possession in the same quality, manner, form, and condition as he had

the use. And therefore if a use were limited before the statute to John S. and

Jane at Gappe, and to their heirs, and afterwards they intermarry, and after

the statute is made, by which the possession is executed to them and their

heirs during the coverture; yet they shall not have a divided estate, but the

like moieties as they had in the use. So if cestuy que use be of certain lands

held by priority and of other land by posteriority, and after the statute is made,

by which execution is made of the possession of both at the same time, yet

he shall have the possession of both in the same quality as he had the use,

and all that by the express words of the statute. And it is to be noted, that

the stat. of 27 Hen. 8. doth not speak only of uses, but also of trusts and

conﬁdence, so that although no use rose in the time of the life of Edward

Shelley, yet there was a trust and conﬁdence expressed in his life. And therefore

when the use is once raised, it ought to be vested according to the trust and

conﬁdence which Edward Shelley intended and declared by the indentures.

[102 b]

Part One of the Reports28

Lastly, the defendant’s counsel argued, That the uncle could not have the

land as a purchaser, admitting the remainder had been limited to the right

heirs male of the body of Edward Shelley, in as much as the eldest son of

Edward Shelley had issue Mary his daughter, who is yet alive, as appears by

the Record, and who is heir to Edward Shelley. It hath been said, that although

Mary at the time of the death of Edward Shelley, was heir general, yet the

said Richard was at that time heir male of the body of Edward Shelley. And

therefore he might as special heir male of the body of Edward Shelley take

the remainder, although Mary is heir general; and therefore it hath been said

that if lands had been given to Edward Shelley, and to the heirs male of his

body lawfully begotten, that in that case, after his death, Richard Shelley as

heir male per formam doni shall inherit, although the daughter of the elder

son was general heir to Edward Shelley. To that they answered, and took a

difference when the heir male of the body claims by descent, and when he

claims by purchase; for in descents the law is as hath been alleged, but it is

otherwise in cases of purchase. This | difference was proved by the case in 37

Hen. 8. Br. Done 42. If a man makes a gift in tail of lands in gavelkind to a

man and his heirs male of his body lawfully begotten, and hath issue four

sons, in this case all the sons shall inherit: But if a lease for life be made of

lands in gavelkind, the remainder to the right heirs of J. S. and J. S. dies,

having issue four sons, in this case the eldest son only shall have the remainder,

for there can be but one right heir in the case of purchase.

And so is Ellerker’s opinion expresly in 9 Hen. 6. fol. 24a. If a man makes

a lease for life, the remainder to the right heirs female of the body of J. S. and

J. S. hath issue a son and a daughter, and dieth, in this case the daughter shall

not take the remainder, for she is not heir female to take by purchase. And

yet it is plain, that if a gift in tail had been made to J. S. himself, and to the

heirs female of his body, and J. S. dieth, having issue a son and daughter, the

daughter should have had the land by descent. Also in 37 Hen. 8. Br. Done

61. it appears, that the Lord Hussey made a feoffment in fee to the use of

Anne his wife for life, and after to the use of the heirs of his body, and after

the Lord Hussey was attainted of treason, and although Brook hath not ex-

pressed the judgment, yet it was said, it was adjudged, that the right heirs of

his body could not as purchaser take the remainder, because he was not heir

of his body to take it by purchase, by reason of the attainder of his father.

And yet before the stat. of 26 Hen. 8. if tenant in tail had committed high

treason the land had descended. And in Brooke’s Reports aforesaid it appears,

[103 a]

Shelley’s Case 29

that Hare, the Master of the Rolls, took the difference between a gift in pos-

session to a man and to his heirs female of his body, and a lease for his life,

the remainder to the right heirs female of his body; for in case of a remainder

(as he said) she ought to be heir indeed, or else she can never claim it by

purchase. So it appears by these authorities, that in case of purchase the heir

male of the body ought to be heir indeed. And forasmuch as in our case, the

uncle was not heir male for a man cannot have two heirs to claim by purchase,

therefore as purchaser the uncle cannot claim it. But it hath been said, that

the Statute de Donis Conditionalibus aids and helps the heir male of the body

to take, for that the will of the donor appears, that the heir male of his body

should have the land; and the statute saith, quod voluntas donatoris secundum

formam in charta doni sui manifeste expressa, de caetero observetur.

In answer

of which, one of the defendant’s counsel declared | the reason of the other

cases and authorities which had been cited, and of the difference which was

taken before; and therefore he said that the Statute de Donis Conditionalibus

did not help this case. Mr. Littleton in his chapter of Estate-tail saith, that

every gift in tail within the Statute de Donis Conditionalibus, before the making

of that statute, was a fee-simple at the Common Law; and therefore he put

the case before the Statute de Donis Conditionalibus, and examined if the same

had been a fee-simple conditional before the said statute, for otherwise it

cannot be an estate in fee-tail by the statute. For he said that the Statute de

Donis Conditionalibus was a nurse, and no mother of estates of inheritances

tail, and that it preserved the estates of inheritances in fee-tail, but did not

beget or procreate any estates tail, which were not fee-simple conditional be-

fore. And therefore he took the law to be clear, that if a man gives land to a

man & semini suo,

or to a man & liberis suis de corpore,

or prolibus suis,

or exitibus suis,

or pueris suis de corpore,

in these cases the donee hath no

estate in fee-tail, but only an estate for term of life; for if such gifts had been

made before the statute, they had been no fee-simples conditional; and there-

26. [Ed.: that the will of the donor be from henceforth observed, according to the form manifestly

expressed in the charter of gift.]

27. [Ed.: and his seed,]

28. [Ed.: and his children of his body,]

29. [Ed.: his offspring,]

30. [Ed.: his issue,]

31. [Ed.: his children (or boys) of his body,]

[103 b]

Part One of the Reports30

fore by Mr. Littleton’s rule, no estate-tail by the Statute de Donis Condi-

tionalibus. For the statute creates no new inheritances, which were no in-

heritances at the Common Law, but only nurses and preserves those which

were estates of inheritance at the Common Law. And therefore the law was

taken in the Case of Martin Hastings of Norfolk, for the manor of Elsinge,

and where an estate was made to one of his ancestors, and to the issue male

of his body, that in that case he had but an estate for life. And so it was held

by Sir Roger Manwood, then one of the Justices of the Common Pleas, clearly

in argument of Clatch’s Case, anno 16 Eliz. and therefore he examined the case

here before the said statute; and he took it without question, that if a lease

had been made for life, the remainder to the heirs male of the body of J. S.

that in that case, if J. S. had issue two sons, and the eldest son having issue

a daughter died in the life of J. S. and then J. S. had died; that in that case

the younger son of J. S. after his death cannot take this fee-simple conditional

by the Common Law, for he was not heir male of the body to take this fee-

simple by purchase; for ﬁrst he ought to be heir, and secondly he ought to

be heir male. And in that case if J. S. had been attainted of treason or felony,

the heir male of his body could never have taken the remainder, for he was

not heir, which might be the reason of The Lord Hussey’s Case before cited.

And it is holden in 12 Edw. 3. | titulo Variance 77. that where a man makes

a gift to the husband and wife, and to the heirs of the body of the husband,

and if the husband and wife die without issue of their two bodies, that then

it shall remain over; in that case although the will of the donor appears, that

the wife shall be also donee in special tail, yet forasmuch as by the order of

the Common Law she could not have an estate of fee-simple conditional, for

that cause she could not have an estate-tail by the statute. But in the said case

where lands are given to a man and the heirs female of his body; here is an

estate of inheritance vested in the donee, which estate of inheritance the Statute

de Donis Conditionalibus directs to the heir female by descent, although there

be an issue male.

And as to what hath been objected, that forasmuch as the limitation was

to the heirs male of the body of Edward Shelley, and of the heirs male of the

body of the heirs male lawfully begotten, that the heirs male of the body of

Edward Shelley should be purchasers, for otherwise the subsequent words

would be void: The defendant’s counsel answered, that it is a Rule in Law,

when the ancestor by any gift or conveyance takes an estate of freehold, and

in the same gift or conveyance an estate is limited either mediately or im-

[104 a]

Shelley’s Case 31

mediately to his heirs in fee or in tail; that always in such cases, “the heirs”

are words of limitation of the estate, and not words of purchase. And that

appears in 40 Edw. 3. fol. 9a, 9b. in The Provost of Beverley’s Case, in 38 Edw.

3. fol. 31d. 24 Edw. 3. 36b. 27 Edw. 3. fol. 87a. and in divers other books. So

inasmuch as in this case Edward Shelley took an estate of freehold, and after

an estate is limited to his heirs male of his body, the heirs male of his body

must of necessity take by descent, and cannot be purchasers; otherwise is it

where an estate for years is limited to the ancestor, the remainder to another

for life, the remainder to the right heirs of the lessee for years; there his heirs

are purchasers. Or if the remainder be limited to the heir in the singular

number upon a lease for life, there the heir takes an estate for term of life by

purchase. And if it should be admitted, that in regard of the said subsequent

words, the right heirs male should have by purchase to them and the heirs

male of their bodies, then a violence would be offered as well to the words

as to the meaning of the party, for if the heir male of the body of Edward

Shelley should take as purchaser, then all the other issue male of the body of

Edward Shelley would be excluded to take any thing by the limitation; and

it would be against the express | limitation of the party. For the limitation is

to the use of the heirs male of the body of Edward Shelley, and of the heirs

male of their bodies begotten, and for default of such issue, to divers other

persons in remainder; so if Richard Shelley being the heir male of the body

of Edward Shelley at the time of his death should take by purchase, then the

heirs male of the body of Richard Shelley only would be inheritable, and no

other of the sons of Edward Shelley, nor their heirs male, and consequently,

if Richard Shelley should die without issue male, the land would remain over

to strangers, and all the other sons of Edward Shelley which he then had and

might afterwards have, and their issues, would be utterly disinherited; because

the words were in the plural number, “heirs male of the body of Edward

Shelley,” the former construction will be against the very letter of the inden-

tures, for by that means the plural number will be reduced to the singular

number, that is to say, to one heir male of the body of Edward Shelley only:

and forasmuch as the ﬁrst words, viz. (“heirs male of the body of Edward

Shelley” include the subsequent words, viz. “the heirs male of their bodies”)

for every heir male begotten of the body of the heir male of Edward Shelley

is, in construction of law, an heir male of the body of Edward Shelley himself;

for this reason the subsequent words are words declaratory, and do not restrain

the former words. As in the case of Littleton, if a man makes a feoffment in

[104 b]

Part One of the Reports32

fee, ita quod

the feoffee shall do such an act, in that case Littleton said it is

commonly used in such cases to have also these words, “and if the act be not

done, it shall be lawful for the feoffor to re-enter,” which he said was more

than was necessary, for the ﬁrst words are sufﬁcient in law, and include them,

yet he said they were well put in, to declare and express the law to lay-people.

And lastly in this case, if Richard Shelley should not be in course and nature

of a descent, then he could not take at all; for when an estate is made to a

man, and after in the same deed, (to limit the quality of the estate) a further

limitation is made to his heirs, or to the heirs of his body; in all these cases

his heirs, or the heirs of his body, shall never take as purchasers, but in this

case these words, “heirs male of the body of Edward Shelley,” were words of

limitation; and therefore the heir male of the body cannot take as a purchaser.

And in proof of the ﬁrst proposition, it was said, that this is the reason of the

book in 40 Ass. pl. 19. and of Mr. Littleton’s Case, fol. 128. that if a man grants

a reversion, or a seignory, by deed to J. S. and his heirs, if the grantee dies

before attornment,

the attornment to the heir is void, for if the attornment

should be good, then the | heir would be in as a purchaser, where by the grant

and meaning of the parties, these words, “his heirs,” were words of limitation

to limit the estate of the grantee himself; and so it was held in Nichol’s Case

in Plow. Com. fol. 483. that if a man leases lands to a man for life, and if the

lessor dies without heir of his body, that then the lessee shall have the land

to him and to his heirs; in that case, if lessee for life dies, and then the lessor

dies without heir of his body, the heir of the lessee shall not have the land,

as it was held clearly causa qua supra.

And so the law is clear, as it is commonly agreed in our books, if two men

exchange lands in fee-simple, or fee-tail, if both the parties die before the

exchange be executed, of each part, the exchange is void; for if the heirs should

enter, they would be in as purchasers by force of the words, which were words

of limitation of the estate, and not of purchase. And upon the same reason

is Brett’s and Rigden’s Case adjudged in Plow. Com fol. 342a stronger case than

this case is. For a man devised lands to another and to his heirs, and the devisee

32. [Ed.: so that (i.e., on condition that).]

33. [Ed.: “Attornment” was the formal recognition of a transfer of a tenancy in land, by which the new

tenant acknowledges his duties, either to a lord, to a grantee, or, for a holder of a future interest, to the

present interest holder.]

34. [Ed.: for the above reason.]

[105 a]

Shelley’s Case 33

died in the life of the devisor, and then the devisor died; and it was adjudged,

that the heir should not take by the devise, for in that case the heirs are not

named as words of purchase, but only to express and limit the estate which

the devisee should have; for without the word “heirs,” the devisee could not

have the fee-simple, and the heirs are named only to convey the land in fee-

simple, and not to make any other to be purchaser than the ﬁrst devisee. So

in our case the heirs male of the body of Edward Shelley are named only to

give Edward Shelley an estate-tail, and not to make any other purchaser than

Edward Shelley only, and without those words he could not have had an estate-

tail; and therefore the uncle in our case cannot claim the land as a mere pur-

chaser, but if he takes it in any sort, he shall take it in nature and course of

a descent, and therefore quacunq. via data,

the uncle cannot have the land;

and if he take it in nature and course of a descent, (for as a purchaser he cannot

take) then the elder son shall enter upon him, and so quacunq. via data the

son of the elder son ought to have the land. And therefore to conclude: ﬁrst,

no execution could be sued against the issue in tail, because no execution was

sued in the life of Edward Shelley. Secondly, admitting execution might have

been sued against the issue in tail, and that execution was requisite to be had

in the life of Edward Shelley, inasmuch as the lands were in lease for years,

that the reversion was immediately vested in the recoveror by the judgment:

thirdly, admitting execution might be sued against the issue in tail, and that

the recovery was not executed till after the death of Edward Shelley; yet ﬁrst,

| forasmuch as it was impossible by the act of God that execution should be

sued in the life of Edward Shelley; secondly, that the indentures guide the

use, and direct it to the heirs male of the body of Edward Shelley by words

of limitation; thirdly, that the use and estate do not commence originally in

the uncle as a mere purchaser, but ﬁrst vested in the uncle by force of the

indentures made by Edward Shelley and the recovery had against him, and

might have vested in Edward Shelley, and if it had been vested in Edward

Shelley, then without doubt Richard Shelley had taken by descent; fourthly,

that the estate is conveyed by way of limitation of use, which is always directed

by the intent of the parties; ﬁfthly, that it would be absurd and mischievous

to adjudge the whole inheritance to be at the disposal of the recoverors, or

of the sheriff, who never were trusted; and lastly, that Richard the uncle ought

[105 b]

35. [Ed.: Whichever way you take it,]

Part One of the Reports34

either to claim in nature or course of descent; and then no question but the

entry of the defendant was lawful, or otherwise merely by purchase, which

by the rules of law, and for the reasons aforesaid he cannot; and therefore they

concluded that the entry of Henry Shelley the defendant was lawful, and that

judgment ought to be given against the plaintiff, that he should take nothing

by his bill.

After the said case had been openly and at large argued at three several days

by the counsel of each side in the King’s Bench, the Queen hearing thereof

(for such was the rareness and difﬁculty of the case, being of importance, that

it was generally known) of her gracious disposition, to prevent long, tedious,

and chargeable suits between parties so near in blood, which would be the

ruin of both, being gentlemen of a good and ancient family, directed her

gracious letters to Sir Thomas Bromley, Knight, Lord Chancellor of England,

who was of great and profound knowledge and judgment in the law, thereby

requiring him to assemble all the justices of England before him, and upon

conference had between themselves touching the said questions, to give their

resolutions and judgments thereof; and thereupon the Lord Chancellor in

Easter term, in the 23d year of her reign, called before him at his house, called

York-house, Sir Christopher Wray, Knight Lord Chief Justice of England, and

all his companions, Justices of the Queen’s Bench, Sir James Dyer, Knight

Lord Chief Justice of the Court of Common Pleas, and all his companions,

justices of the same Court; and Sir Roger Manwood, Knight Lord Chief Baron

of the Exchequer, and the Barons of the Exchequer, before whom the questions

aforesaid were moved and shortly argued by Serjeant Fenner, on the plaintiff’s

part, and by one on the defendant’s part.

At which time the Lord | Chancellor

was of opinion for the defendant, and openly declared his opinion before all

the justices, that upon the third question the law was for the defendant, and

therefore the defendant’s entry upon the uncle was lawful: but the said ques-

tions were not resolved at that time, the said justices desiring time to consider

of the questions. And eight or nine days after in the same term, all the said

justices and Barons met together in Serjeant’s-Inn, in Fleet Street, for the

resolution of the said case, and there the case was again shortly argued by

them; after which arguments the justices at that time did confer among them-

selves, and took further time to consider of the said questions in the next

36. [Ed.: Sir Edward Coke.]

[106 a]

Shelley’s Case 35

vacation, till the beginning of Trinity term then next following; and accord-

ingly in the beginning of Trinity term, after great study and consideration of

the said record of the special verdict, all the said justices and Barons met again

in Serjeant’s Inn, in Fleet Street; at which time upon conference amongst

themselves, all the justices of England, the Lord Chief Baron, and the Barons

of the Exchequer, except one of the puisne justices of the Court of Common

Pleas, agreed that the defendant’s entry upon the said Richard the uncle was

lawful; and four or ﬁve days after their last meeting, one of the defendant’s

counsel came to the Bar in the Queen’s Bench, and moved the justices to

know their resolutions in the said case; for their resolution was not before

known to the defendant, nor to his counsel. And Sir Christopher Wray, Knight

Lord Chief Justice, answered, that they were resolved; and thereupon asked

the plaintiff’s counsel being then at the Bar, if they could say any more on

the plaintiff’s part, who answered, That they had said as much as they could:

and also demanded of the defendant’s counsel, if they had any new matter to

say for the defendant, who said, No. And then the said Chief Justice gave

judgment, that the plaintiff should take nothing by his bill: And because the

counsel of both sides, who were present, were desirous to know upon which

of the said points their resolution did depend, the said Chief Justice openly

declared, That as to the ﬁrst point, the better and greater part of all the justices

and Barons held that execution might be sued against the issue in tail, because

the right of the estate-tail was bound by the judgment against the tenant in

tail, and the judgment over to have in value, and that in favour of common

| recoveries, which are the common assurances of the land.

And as to the second point, they were all agreed, that the reversion was not

in the recoverors immediately by the judgment: But he said, that all the justices

of England and Barons of the Exchequer, except one of the justices of the

Common Pleas, were agreed as to the third point. That the uncle was in, in

course and nature of a descent, although he should not have his age, nor be

in ward, &c.: First, because the original act, viz. the recovery, out of which

all the uses and estates had their essence, was had in the life of Edward Shelley,

to which the execution after had a retrospect: Secondly, because the use and

possession might have vested in Edward Shelley, if execution had been sued

in his life: Thirdly, the recoverors by their entry, nor the sheriff by doing of

execution, could not make whom they pleased inherit: Fourthly, because the

uncle claimed the use by force of the recovery, and of the indentures by words

of limitation, and not of purchase. These were, as the Chief Justice said, the

[106 b]

Part One of the Reports36

principal reasons of their judgment. And it was resolved by them all, that the

recovery, notwithstanding the death of Edward Shelley in the morning be-

tween the hours of ﬁve and six on the same day, was good enough. And so

it was resolved by Sir Thomas Bromley, Knight Lord Chancellor of England,

Sir Christopher Wray, Knight Lord Chief Justice of England, Sir James Dyer,

Knight Lord Chief Justice of the Court of Common Pleas, Sir Roger Man-

wood, Knight Lord Chief Baron of the Exchequer, Sir Thomas Gawdy, Knight

one of the Justices of Her Highness’s Bench, and by all the Justices of the

Queen’s Bench, and by all the Justices, saving one of the Common Pleas, and

by all the Barons of the Exchequer, that the right of the defendant was good,

and his entry lawful, and judgment was given accordingly.

Part Two of the Reports

The Second Part of Coke’s Reports was published in 1602. It was originally

published in Law French and entitled Le Second Part Des Reportes Del Edvvard

Coke Lattorney General Le Roigne, De Divers matter en Ley, avec graunde &

mature consideration resolve, & adjudge, queux ne sueront unques resolve ou ad-

judge par devant, & les raisons & causes de yceux durant le Raigne de treﬁllure

& renomes Roygne Elizabeth, le fountaine de tout Justice & la vie de la Ley. In

English, The Second Part of the Reports of Sir Edward Coke, Knight., Her Maj-

esty’s Attorney-General, of divers Matters In Law, with great and Mature con-

sideration Resolved and Adjudged, which were never Resolved or Adjudged Before:

and the Reasons and Causes thereof: During the Reign of the most Illustrious and

Renowned Queen Elizabeth, the Fountain of all Justice, and the life of the Law.

The whole of the cases in this part is a series of issues in the control, transfer,

and obligations arising from the ownership of property, including some cases,

such as the problem of bankrupts, dealing with satisfaction of debts from

property. There is a lesser emphasis in this part on both the style and the

content of pleading and on the effect of pleading in deciding the dispute.

Epigrams from the Title Page:

Ecclesiasticus Cap. 24.

Videte quod non mihi soli laboravi, sed omnibus exquirentibus scientiam.

Papian. Lib. i. Deﬁnit.

Lex est commune praeceptum, vivorum prudentium consultum, delictorum que sponte

vel ignorantia contrabuntur, communis reipublicae sponsio.

1. [Ed.: Behold, I have not labored for myself only, but for all them that seek wisdom.]

2. [Ed.: Law is a universal command, the resolution of prudent men, restraining offences (whether

knowingly or unwittingly committed), a general consensus of the common weal.]

Part Two of the Reports38

Isodorus.

Lex dicitur a ligando, quia obligat; vel dicitur a legendo, quia publice legatur.

Cic. Lib. i. de Legibus.

Cum dico legem, a me dici nihil aliud intelligi volo quam imperium; sine quo domus

ulla, nec civitas, nec gens; nec gens, nec hominum universum genus stare, nec rerum

natura omnis, nec ipse mundus potest.

Seneca ad Lucil. Epist. 108

Illud tamen prius scribam, quemadmodem tibi ista cupiditas discendi, qua ﬂagrare te

video, regenda sit, ne ipsa impediat; nec passim carpenda sunt, nec avide invadenda

universa: per partes pervenitur ad totum: aptari onus viribus debet, nec plus occupari,

quam cui sufﬁcere possumus: non quantum vis, sed quantum capis hauriendum est:

Quo plus recipit animus, hoc se magis laxat.

Idem. Epist. 45.

Lectio certa prodest, varia delectat; qui quo destinavit pervenire vult unam sequatur

viam, non per multas vagetur, non ire istud sed errare est.

Idem. ad Lucil. in Epist.

Non refert quam multos, sed quam bonos habeas libros; multitido librorum onerat non

instruit, & satius est paucis authoribus te tradere, quam errare per multos.

3. [Ed.: Lex (law) is so called from ligando (binding), because it binds, or it is so called from legendo

(reading), because it is read out in public.]

4. [Ed.: When I say the law, I wish nothing else to be understood to be said by me but imperium

(authority), without which no house, no city, no people, nor any kind of man, nor the nature of things,

nor even the world itself, can stand.]

5. [Ed.: These texts were omitted from the 1658 edition, but are included in various others. These

translations were included in the 1793 edition.]

6. [Ed.: This ﬁrst will I set down, (which else might hinder thee) how thou art to order that servant

desire of learning which I ﬁnd to be in thee; things are not every where alike gathered, nor universally all

greedily snatched: the whole is to be attained unto by parts: burdens must be ﬁtted to the strength of the

bearers; neither should we undertake more than we are able to effect: draw out so much as may satisfy not

thy mind by thy want: the very mind of man, the more it receiveth, the more it loosens and freeth itself.]

7. [Ed.: Certainty in reading is proﬁtable, variety delightful; he that desireth to come to his journey’s

end must pursue one way, not wander in many, for that is rather to err than to go forward.]

8. [Ed.: It matters not how many books thou hast, but how good, multitude of books do rather burden

than instruct, and it is far better thoroughly to acquaint thyself with a few Authors, than to wander through

many.]

Preface 39

Jero. Epist. 88

Statue tibi quot horis legas, non ad laborem sed ad delictationem.

(Preface)

To the learned Reader.

There are (sayth Euripides) three Virtues worthy [of] our meditation; To hon-

our God, our Parents who begat us, and the Common Lawes of Greece: The

like doe I say to thee (Gentle Reader) next to thy dutie and pietie to God,

and his annointed thy gracious Soveraigne, and thy honour to thy Parents,

yeeld due reverence and obedience to the Common Lawes of England: For

of all Lawes (I speake of humane) these are most equall, and most certaine,

of greatest antiquitie, and least delay, and most beneﬁciall and easie to be

observed; As if the module of a Preface would permit, I could defend against

any man that is not malicious without understanding, and make manifest to

any of judgement and indifferency, by proofes pregnant and demonstrative,

and by Records and Testimonies luculent and irrefragable: Sed sunt quidam

fastidiosi, qui nescio quo malo affectu oderunt Artes antequam pernoverunt.

There is no Jewell in the world comparable to learning; No learning so excellent

both for Prince and Subject as knowledge of Lawes; and no knowledge of any

Lawes, (I speake of humane) so necessary for all estates, and for all causes,

concerning goods, lands, or life, as the Common Lawes of England. If the

beauty of other Countries be faded and wasted with bloudy Warres, thanke

God for the admirable peace wherein this Realme hath long ﬂourished under

the due administration of these Lawes: If thou readest of the tyranny of other

Nations, wherein powerfull will and pleasure stands for Law and Reason, and

where upon conceit of mislike, men are suddenly poysoned, or otherwise

murthered, and never called to answer; Praise God for the Justice of thy gra-

cious Soveraigne, who (to the Worlds admiration,) governeth her people by

Gods goodnesse in peace and prosperity by these Lawes, and punisheth not

9. [Ed.: Tax thyself at so many hours for reading, that thou mayest do it rather with delight than with

toil.]

1. [Ed.: But there are certain scornful people who—I know not by what ill disposition—hate every

profession with which they are unacquainted.]

Part Two of the Reports40

the greatest offendor, no, though his offence be crimen laese Majestatis,

Trea-

son against her sacred person, but by the just and equall proceedings of Law.

If in other Kingdomes, the Lawes seeme to governe: But the Judges had

rather misconstrue Law, and doe injustice, then displease the Kings humour,

whereof the Poet speaketh, Ad libitum Regis, sonuit sententia Legis.

Blesse God

for Queene Elizabeth, whose continuall charge to her Justices agreeable with

her ancient Lawes, is, that for no commandement under the great or privie

Seale, writs or letters, common right bee disturbed or delayed. And if any

such commandement (upon untrue surmises) should come, that the Justices

of her Lawes should not therefore cease to doe right in any point: And this

agreeth with the ancient Law of England, declared by the great Charter, and

spoken in the person of the King; Nulli vendemus, nulli negabimus, aut dif-

feremus Justiciam vel Rectum.

If the ancient Lawes of this noble Island had not excelled all others, it could

not be but some of the severall Conquerors, and Governors thereof; That is

to say, the Romanes, Saxons, Danes, or Normans, and specially the Romanes,

who, (as they justly may) doe boast of their Civill Lawes, would (as every of

them might) have altered or changed the same.

For thy comfort and encouragement, cast thine eye upon the Sages of the

Law, that have beene before thee, and never shalt thou ﬁnde any that hath

excelled in the knowledge of these lawes, but hath sucked from the breasts of

that divine knowledge, honesty, gravity, and integrity, and by the goodnesse

of God hath obtained, a greater blessing and ornament then any other pro-

fession, to their family and posteritie: As by the page following, taking some

for many, you may perceive; for it is an undoubted truth, That the just shall

ﬂourish as the Palme tree, and spread abroad as the Cedars of Libanus.

Their example and thy profession doe require thy imitation: for hitherto

I never saw any man of a loose and lawlesse life, attaine to any sound and

perfect knowledge of the said lawes: And on the other side, I never saw any

man of excellent judgement in these Lawes, but was withall (being taught by

such a Master) honest, faithfull, and vertuous.

If you observe any diversities of opinions amongst the professors of the

2. [Ed.: Treason; lese majesty was the crime of injuring the dignity of the monarch.]

3. [Ed.: Legal decisions were made at the king’s whim.]

4. [Ed.: To no one shall we sell, to no one deny, to no one delay, Justice or Right.]

5. Psal. 91.12 [AV 92.12].

Preface 41

Lawes, contend you (as it behoveth) to be learned in your profession, and you

shall ﬁnde that it is Hominis vitium, non professionis:

And to say the truth,

the greatest questions arise not upon any of the Rules of the Common Law,

but sometimes upon Conveyances and Instruments made by men unlearned;

Many times upon Wills intricately, absurdly, and repugnantly set downe, by

Parsons, Scriveners, and such other Imperites: And oftentimes upon Acts of

Parliament, overladen with provisoes, and additions, and many times upon

a sudden penned or corrected by men of none or very little judgement in Law.

If men would take sound advise and counsell in making of their Convey-

ances, Assurances, Instruments, and Willes: And Counsellors would take

paines to be rightly and truly informed of the true state of their Clyents case,

so as their advise and counsell might be apt and agreeable to their Clients

estate: And if Acts of Parliament were after the old fashion penned, and by

such onely as perfectly knew what the Common Law was before the making

of any Act of Parliament concerning that matter, as also how farre forth former

Statutes had provided remedie for former mischiefes and defects discovered

by experience; Then would very few questions in Law arise, and the learned

should not so often and so much perplex their heads, to make atonement and

peace by construction of Law betweene insensible and disagreeing words, sen-

tences, and provisoes, as they now doe.

In all my time I have not knowne two questions made of the right of

Discents, of escheates by the Common Law, &c. so certaine and sure the Rules

thereof bee: Happy were Arts if their professors would contend, and have a

conscience to be learned in them, and if none but the learned would take

upon them to give judgement of them.

Your kinde and favourable acceptation (gentle Reader) of my former Edi-

tion, hath caused me to publish these few cases in performance of my former

promise, and I wish to you all no lesse proﬁt in reading of them, then I perswade

my selfe to have reaped in observing of them: This onely of the learned I

desire:

Perlege, sed si quid novisti rectius istis,

Candidus imperti; si non hiis utere mecum.

6. [Ed.: A defect in the men, not in the profession.]

7. [Ed.: Read this through, and if you ﬁnd anything more correct than this, dear Reader, share it; if

not, use this with me.]

Part Two of the Reports42

Manser’s Case.

(Painter v. Manser)

(1584) Easter Term, 26 Elizabeth I

In the Court of Common Pleas.

First Published in the Reports, volume 2, page 1.*

Ed.: Manser and his son promised Painter to keep certain lands free from

legal encumbrances and to sign whatever legal papers Painter required in

order to do so. When Painter sent them a legal document to release him

of liability, Manser said his son could not read and would not sign it until

it had been read to them by a lawyer. When Painter sued Manser, using

the appropriate writ of debt, Manser replied in a pleading that he had only

delayed to meet with lawyers, that he had maintained the land as promised

and that he himself had executed the lease. The court held that a person

who cannot read a language asked to sign a document in that language

must be allowed to have it read, but this allowance cannot expand the time

in which it must be signed and sealed. Manser’s other claims were lost for

a failure to plead facts necessary to sustain an afﬁrmative pleading, and

Painter won the case. The opinion is notable for its discussion of laymen’s

required knowledge of the law, for its use of relative weights of fact in

comparing a precedent, and for its instructions on the requirements of

pleading. Look also for Coke’s admonition that lawyer’s documents should

be written to be understood by the parties who need them.

Between Painter and Manser, the case was such: Painter brought an action

of debt upon an obligation against Manser, and the defendant pleads the

obligation was with condition; scil. That whereas the defendant had enfeoffed

the plaintiff of certain lands, if the plaintiff shall at all times following enjoy

those lands discharged, or otherwise kept indemniﬁed from all incumbrances,

&c.; and also, if the defendant and John Manser his son, shall do all acts and

devices for the better assurance of those lands to him, as by the plaintiff, or

his counsel learned in the law, shall be devised, that then the obligation shall

be void; And pleaded that the plaintiff had enjoyed the said lands discharged

*[Ed.: The pleadings are recorded at Pasch. 26 Eliz. Rot. 1608.]

Manser’s Case 43

and kept indemniﬁed from all incumbrances, &c.; And that the plaintiff de-

vised a writing of release to be made by the defendant and John his son, to

the plaintiff, which the defendant did seal and deliver as his deed; and because

his son was not lettered, and could not read, the said John prayed the plaintiff

to deliver it to him, to be shewed to some man learned in the law, who might

inform him if it was made according to the condition; and said further, that

if it was according to the condition, he would deliver it, which the plaintiff

refused; wherefore he did not deliver it, as it was lawful he should not: where-

upon the plaintiff demurred; and it was adjudged for the plaintiff. In this case

three points were resolved.

1st. If a man, not lettered, be bound to make a deed, he is not bound to

seal and deliver any writing tendered to him, unless somebody be present who

can read the deed to him, if he requires the writing to be read to him; And

if the deed be in Latin, French, or other language (which the party who is to

execute the writing doth not understand), in such case, if the | party demands

that one should read and interpret the writing to him, and none be present

that can read and expound the tenor of the same in that language that the

party who is to deliver the deed understands, there the party may well refuse

to deliver it. So although the man can read, yet if the deed be in Latin, French,

or other such language as the party who is to execute cannot understand, if

he require that the writing be read or expounded to him in such language as

he may understand it, and nobody be there to do it, the party may refuse to

deliver it. And it is to know that quod ignorantia est duplex, viz. facti & juris;

& rursum ignorantia facti (quoad rem nostram attinet) est duplex, videlicet, lec-

tionis & linguae.

Note, reader, that ignorance in reading, or ignorance of the

language, quae sunt ignorantia facti,

may excuse; but as is commonly said,

ignorantia juris non excusat:

For notwithstanding that there it was said, that

although the party can read and knows the language also in which the writing

was made, yet he does not know the sense and operation of the words in law,

and whether they agree with the condition of his obligation, or not; And

therefore some of the justices thought that in such case the party shall have

1. [Ed.: Whereas ignorance is of a dual nature, to wit, of fact and law, and returning to ignorance of

fact (to the degree that it is our concern here), it is (also) of a dual nature, that is, of the text and of the

language.]

2. [Ed.: Which are ignorance of facts.]

3. [Ed.: Ignorance of the law does not excuse (its breach).]

[3 b]

Part Two of the Reports44

reasonable time to shew the writing to his counsel at law to be instructed by

them, whether it be according to what he is bound to do, and namely when

there is no time limited in which it is to be done, so as in regard that the

other party might request the doing of it when he pleased, it is not possible

for the party to have his learned counsel at all times with him: and therefore

prima faeie,

it seemed reasonable, that the party shall have reasonable time,

as afore said: But at length, upon the view of the record of a judgment in this

Court, anno 16 Eliz. in the time of the Lord Dyer, between Sir Anthony Cook

and Wotton, that upon such request made to Sir Anthony Cook by Wotton,

to seal an indenture, Sir Anthony, who was not learned in the law, was obliged

to seal it peremptorily at his peril, and could not obtain convenient time to

consult upon it with his counsel; hereupon it was resolved in the case at the

Bar according to the said judgment. See the case now reported by the Lord

Dyer. Trinit. 16 Eliz. Dier 337, 338. And it was said, that the case at the Bar

was stronger than that of Sir Anthony Cook; for in this case the defendant

obliged himself, that his son, who was a stranger to the obligation, should do,

&c.: in which case he has undertaken that his son shall do it at his peril; for

he that is obliged, undertakes more for a stranger than for himself in many

cases. Vide 33 Hen. 6. 16b. 36 Hen. 6. 8. 2 Edw. 4. 2. 15 Edw. 4. 5b. 22 Edw.

4. 43. and 10 Hen. 7. 14b.

2d. It was resolved, that the [Defendant’s] pleading was insufﬁcient: for he

hath pleaded, that the plaintiff had enjoyed the | land discharged and kept

harmless from incumbrances, where he ought to have shewed how: So if he

had pleaded, that he had saved him harmless, he ought to have shewed how;

but in such case, if he had pleaded in the negative, non fuit damniﬁcatus,

there it is otherwise. Secondly, he hath pleaded, quod quoddam scriptum re-

laxationis,

was sealed and delivered, and doth not shew whether the release

concerns the lands mentioned in the condition; and for all these causes the

plaintiff had judgment to recover.

Note reader, there is great reason, that the writing should be expounded

in such language, that the party may understand it, although he could read;

because, by the law, he is at his peril to deliver it presently upon request, and

hath not time to consult upon it with learned counsel.

4. [Ed.: on ﬁrst sight; presumptively,]

5. [Ed.: he was not damaged,]

6. [Ed.: that a certain deed of release,]

[4 a]

The Case of Bankrupts 45

The Case of Bankrupts.

(Smith v. Mills)

(1589) Trinity Term, 31 Elizabeth I

In the Court of the King’s Bench.

First Published in the Reports, volume 2, page 25a.

Ed.: John Cook, a merchant, went bankrupt, owing Robert Tibnam £64

and another group of creditors £273, 12d. The second group of creditors

got a commission in bankruptcy against Cook. Cook gave part of his goods

to Tibnam in partial payment of his debt, and Tibnam sold them. But the

bankruptcy commissioners sold the same goods to the group of creditors

in partial satisfaction of their debts. In an important case construing the

then-two-decade-old bankruptcy statute, Chief Justice Wray of the King’s

Bench held that the sale by the commissioners was good, that the purpose

of the statute was to protect all of the creditors of a bankrupt, and that a

bankrupt debtor cannot give preferential settlements to one creditor, but

both debtor and creditors must accept an equal settlement for all of the

creditors.

Gregory Smith, Cullamor, and other good merchants of London, brought

an action upon the case upon trover and conversion of divers goods, inLondon,

against Thomas Mills, and upon not guilty pleaded, the jury gave a special

verdict to this effect: John Cook, of Spalding, was possessed of the same goods,

and exercising the trade of buying and selling, 30 Januarii, 29 Eliz. became a

bankrupt, and absented himself secundum formam statuti,

(which was found

at large), and the said 30 Januarii was indebted to the plaintiffs, being subjects

born, in £273 12d. pro merchandizis per quemlibet eorum prius venditis;

and

then also was indebted to Robert Tibnam, being also a subject born, in £64.

Afterwards, 12 February, 29 Eliz. the plaintiffs exhibited a petition to the Lord

Chancellor to have a commission upon the Statute of Bankrupts; and 17 Feb-

ruary, 29 Eliz. a commission was granted, according to the said statute, under

the Great Seal, to William Watson and others. And afterwards, 21 Februarii,

29 Eliz. John Cook gave and delivered the said goods to Tibnam, in satisfaction

1. [Ed.: according to the form of the statute,]

2. [Ed.: for merchandise previously bought from each of them;]

Part Two of the Reports46

of part of his said due debt, the goods being of the value of £24. And afterwards,

ultimo Martii,

29 Eliz. the commissioners, by deed indented, sold to the

plaintiffs jointly the said goods, and at the same time the said Mills, then

factor to Tibnam in ea parte,

refused to come in as creditor, but claimed the

said goods as the proper goods of his master, by the gift aforesaid; and after-

wards the goods came to the defendant’s hands, and he converted them; but

whether the said sale of the said commissioners, notwithstanding the said gift

and delivery to Tibnam, be good or not, that was the doubt referred to the

consideration of the Court. And judgment was given by Wray, | Chief Justice,

and the whole Court, for the plaintiffs. And in this case divers points were

resolved:

1st, That the said sale made by the said commissioners, was good; and

because the doubt arose only upon the words and intent of the stat. of 13 Eliz.

cap. 7., the Court considered the several parts and branches thereof: First, the

Act describes a bankrupt, and whom he defrauds, scil. the creditors. 2. To

whom the creditors should complain for relief, scil. to the Lord Chancellor.

3. How, and by what way, relief and remedy is provided, scil. by force of a

commission under the Great Seal, &c. 4. The authority of the commissioners,

scil. to sell, &c. that is to say, to every one of the creditors a portion, rate and

rate alike, according to the quantity of his or their debt. So that the intent of

the makers of the said Act, expressed in plain words, was to relieve the creditors

of the bankrupt equally, and that there should be an equal and rateable pro-

portion observed in the distribution of the bankrupt’s goods amongst the

creditors, having regard to the quantity of their several debts; so that one should

not prevent the other, but all should be in aequali jure.

And so we see in

divers cases, as well as the Common Law, as upon the like statutes, such

constructions have been made; for, as Cato saith, Ipsae etenim leges cupiunt ut

jure regantur;

And therefore it is held, in 35 Hen. 8. tit. Testaments, Br. 19.

a man holdeth three manors of three several lords by knights service, each

manor of equal value, he cannot devise two manors and leave the third to

3. [Ed.: on the last [day] of March,]

4. [Ed.: in that behalf,]

5. [Ed.: in the same legal position.]

6. [Ed.: The laws themselves desire to be ruled by right;]

[25 b]

The Case of Bankrupts 47

descend, according to the generality of the words of the Acts of 32 & 34 Hen.

8. of Wills, for then he should prejudice the other two lords, but, by a fa-

vourable and equal construction, he can devise but two parts of each manor,

so that equality between them shall be observed. And in 4 Edw. 3. Assize 178.

the lord of a town cannot improve it all, leaving sufﬁcient common in the

lands of other lords, within the Statute of Merton, cap. 4. And so, in cases

at the Common Law, an equality is required; as, in 11 Hen. 7. 12b. a man

binds himself in an obligation and his heirs, and hath heirs and lands on the

part of his father and on the part of his mother, both heirs shall be equally

charged; 48 Edw. 3. 5a, 5b. in dower, if the heir be vouched in three several

wards within the same county, he shall not have execution against one only,

but all shall be equally charged; 29 Edw. 3. 39. the like case. So here, in our

case, there ought to be an equal distribution secundum quantitatem debitorum

suorum;

but if, after the debtor becomes a bankrupt, he may prefer one (who

peradventure hath least need), and defeat and defraud many other poor men

of their true debts, | it would be unequal and unconscionable, and a great

defect in the law, if, after that he hath utterly discredited himself by becoming

a bankrupt, the law should credit him to make distribution of his goods to

whom he pleased, being a bankrupt man, and of no credit; but the law, as

hath been said before, hath appointed certain commissioners, of indifferency

and credit, to make the distribution of his goods to every one of his creditors,

rate and rate alike, a portion, according to the quantity of their debts, as the

statute speaketh. Also, the case is stronger, because this gift is an assignment

of the bankrupt after the commission awarded under the Great Seal, which

commission is matter of record, whereof every one may take conusance.

Lastly and principally, the Court relied upon other words in the Act, scil.

“And that every direction, bargain and sale, &c. done by the persons so au-

thorised as is aforesaid, in form aforesaid, shall be good and effectual in law,

&c., against the said offender, &c., and against all other persons claiming by,

from, or under such offender, by any act had, made, or done, after any such

person shall become bankrupt, &c.:”

So that, in as much as this assignment and delivery of the said goods was

after the said Cook became bankrupt, notwithstanding that, the commis-

7. [Ed.: according to the amount of their debts:]

[26 a]

Part Two of the Reports48

sioners may well sell them. And the Court resolved, that the provisoconcerning

gifts and grants bona ﬁde,

makes no gift or grant good, which the bankrupt

makes after he becomes bankrupt, but excludes them out of the penalty in-

ﬂicted by the same proviso. And divers exceptions were taken to the verdict

by the defendant’s counsel.

1. That it was not found, that the said sale by the commissioners of the

said goods was by deed enrolled, as they objected the words of the said Act

require: but to that, it was answered, and resolved by the Court, that the words

of the Act concerning enrolment of the deed coming next after these words,

“goods and chattels,” are, “or otherwise to order the same for true satisfaction

and payment, &c., and that every direction, order, &c., shall be good and

effectual;” so this sale, without deed enrolled, is good enough.

2. It was objected, that it was not found that the commissioners had ﬁrst

seen the goods before their sale; for the words of the Act are, scil. “to be

searched, viewed, &c.:” to that, it was answered, and resolved, that the said

words, “or otherwise to order, &c.” “and that every direction, &c.” refer it

to the discretion of the commissioners, and peradventure they cannot come

to the sight of them.

3. That the commissioners ought to make several distributions to the several

creditors, and not to make a joint sale, or assignment, to several creditors; for

if | he owed A. £20, B. £20, and C. £5, a joint sale, or assignment, to A. B.

and C. is not according to the power given to the commissioners by the said

Act; for the Act limits them to make disposition “amongst the creditors, &c.,

to every one a portion, rate and rate alike, according to the quantity of their

debts;” but in this case, he, who hath the least debt, shall have as great interest

in the goods, as he who hath the greatest; and so such assignment, in the said

case put of several debts, is void, quod fuit concessum per Curiam.

But to that

it was answered, and resolved by the Court, that in the case at the Bar, it

appears by the verdict, that the debt due to the plaintiffs was joint, for they

found, ut supra, that the said John Cook was indebted to the plaintiffs in £273

12d., which shall be intended a joint-debt, and so the sale good, in the case

at the Bar.

4. That for as much as the words of the Act are, “To every of the said

8. [Ed.: (In or with) good faith,]

9. [Ed.: which was granted by the Court.]

[26 b]

The Archbishop of Canterbury’s Case 49

creditors a portion, rate and rate alike, distribution ought to be made to all

the creditors:” But here it appears, that the said Tibnam was a creditor, and

£64 due to him, and yet nothing is allotted or assigned to him, so the sale is

void: To that it was answered, and resolved by the Court, that in this case the

factor of the said Tibnam, in ea parte, refused to come in as a creditor, but

claimed all the goods: And this Act gives beneﬁt to those who will inquire

and come in as creditors, and not to those, who either out of obstinacy refuse,

or through carelessness neglect, to come before the commissioners and pray

the beneﬁt of the said statute; for vigilantibus et non dormientibus jura sub-

veniunt,

for otherwise a debt might be concealed, or a creditor might absent

himself, and so avoid all the proceedings of the commissioners by force of the

said Act. And every creditor may take notice of the commission, being matter

of record, as is aforesaid, and so no inconvenience can happen to any creditor

who will be vigilant, but great inconvenience will follow, and the whole effect

of the Act be overthrown if other construction shall be made.

| The Archbishop of Canterbury’s Case.*

(Green v. Balser)

(1596) Trinity term, 38 Elizabeth I

In the Court of King’s Bench.

First Published in the Reports, volume 2, page 46a.

Ed.: When Henry VIII dissolved the monasteries and religious houses in

England, all of their property went to the Crown under a statute that also

freed all such property from the obligation to pay tithes, or religious taxes,

which went to the estates of ecclesiastical superiors. A later statute gave the

Crown title to these same lands but did not free property from the obligation

of tithes. Prior to the dissolution, a religious college had owed tithes to its

local rectory. After dissolution, the lands of the college went to Lord Cob-

ham, and the rectory went to the Archbishop, whose tenant, Balser, at-

tempted to collect tithes from Lord Cobham’s tenant, Green. Green sought

a prohibition against the Archbishop, which is to say an order from the

court forbidding the Archbishop to act. The case turns on a statutory anal-

10. [Ed.: The laws aid those who are vigilant, not those who sleep,]

*[Ed.: The 1658 edition spells this, “The Archbishop of Canturburies Case.”]

[46 a]

Part Two of the Reports50

ysis of the language of the two statutes, particularly the later statute, passed

in 1547, the ﬁrst year of Edward VI. The analysis of the statute sets forth

many rules on interpretation: a rule requiring two elements does not apply

to one; the statement of a burden on an inferior person does not place a

burden on a superior person, and that general words regarding the land do

not apply to duties not arising from the land. Coke and others represented

the Archbishop. The court held that the later statute was held to apply in

this case and, because the tithes were owed at the time of the dissolution,

the tithes were still owed. The Archbishop won.

In a prohibition in the King’s Bench, between Green and Balser; the case

was, That in Maidstone was a religious College, to which the Rectory of

Maidstone was appropriated. And the said College had divers lands and ten-

ements within the said parish of Maidstone, and all was given to the King by

the statute of 1 Edw. 6. And afterwards the rectory was conveyed to the Bishop

of Canterbury, and the lands, parcel of the possessions of the said college,

were conveyed to the Lord Cobham; and now the farmer of the Lord Cobham

brought a prohibition against Balser, farmer of the said rectory, to Whitgift,

Archbishop of Canterbury, and in his prohibition he alleged the branch of

the statute of 31 Hen. 8. concerning discharge of tithes; and shewed, that the

master of the said College was seised of the said lands, and of the said rectory,

simul & semel,

as well at the time of the making of the Act of 31 Hen. 8. as

at the making of the said Act of 1 Edw. 6., and held them discharged of tithes;

and shewed the said Act of 1 Edw. 6., by which the said college was given to

King Edward the sixth; and thereupon the defendant did demur in law. And

in this case divers questions were moved.

1. If the said college came to the King as well by the statute of 31 Hen. 8.,

as by the statute of 1 Edw. 6.; for if this college came to the King by the statute

of 31 Hen. 8. then without question the said branch of the said Act concerning

the discharge of tithes, extends to it: and it was objected by the plaintiff’s

counsel, that the words of the said Act are general, scil. “that all Monasteries,

&c. Colleges, &c. which hereafter shall happen to be dissolved, &c. or by

any other | means come to the King’s Highness &c., shall be vested, deemed,

and adjudged by authority of this Parliament in the very actual and real pos-

1. [Ed.: Together and at one time,]

[46 b]

The Archbishop of Canterbury’s Case 51

session of the King, &c.” And when this College came to the King by the

stat. 1 Edw. 6. it came to the King within these words of the Act “by any

mean.” But it was answered by the defendant’s counsel, and resolved by the

Court, That that could not be for several reasons:

1. When the statute speaks of dissolution, renouncing, relinquishing, for-

feiture, giving up, &c. which are inferior means, by which such religious

Houses came to the King, then the said latter words “or by any other means”

cannot be intended of an Act of Parliament: which is the highest manner of

conveyance that can be; and therefore the makers of the Act would have put

that in the beginning, and not in the end, after other inferior conveyances,

if they had intended to extend the Act thereunto. But these words “by other

means” are to be so expounded, scil. by any other such inferior means. As it

hath been adjudged, that bishops are not included within the statute of 13

Eliz. cap. 10, for the statute beginneth with colleges, deans and chapters, par-

sons, vicars, and concludes with these words, “and others having spiritual

promotions;” these latter words do not include bishops, causa qua supra.

the statute of West. 2. cap. 41. the words of which are, statuit Rex, quod si

abbates, priores, custodes hospital’ & aliarum domorum religiosarum, &c.

These

latter words do not include bishops, as it is holden 1 & 2 Phil. and Mary,

Dyer, 100. 109. for the cause aforesaid.

2. The said clause of 31 Hen. 8. that the said religious houses shall be in

the King by authority of the same Act; and the statute of 1 Edw. 6. enacts,

that all colleges; &c. shall be by authority of this Parliament, adjudged and

deemed in the actual and real possession of the King; so that the latter Par-

liament being of as high a nature as the ﬁrst was, and providing by express

words, that the colleges shall be, by authority of the said Act, in the actual

possession of the King, the said college cannot come to the King by the Act

of 31 Hen. 8. It is said in 29 Hen. 8. Parliament. & Stat. Br. if lands be given

to tenant in tail in fee, his issue cannot be remitted, for the latter Act doth

take away the Stat. de Donis, &c., 3. The usual form of pleading of them,

which came to the King by the statute of 1 Edw. 6., and by the Act of 31 Hen.

8., doth manifest the law clearly, scil. to plead surrender or relinquishment,

2. [Ed.: for the above reason.]

3. [Ed.: the King has laid down that if abbots, priors, keepers of hospitals and other religious houses,

etc.]

Part Two of the Reports52

&c. virtute cujus ac vigore

of the statute of 31 Hen. 8. the King was seised;

but to plead the Act of 1 Edw. 6. of Chauntries, virtute cujus ac vigore of the

statute of 31 Hen. 8. was never heard or seen: and for all these causes it was

resolved, that this college came to the King by the Act of 1 Edw. 6., and not

by the Act of 31 Hen. 8.

The second question was, forasmuch as the said college came to the King

by the Act of 1 Edw. 6., and not by the Act of 31 Hen. 8. | whether the said

branch of discharge of tithes extends to such colleges which after came to the

King by any other Act, and not by the Act of 31 Hen. 8.; and it was objected,

that the said branch should extend to colleges which come to the King by

any other Act, for it was said, that although the preamble of the said branch

saith, “The late monasteries, &c.” yet this is not literally to be understood of

monasteries only which were dissolved before the Act, for “late” is to be con-

strued according to the body of the Act, scil. of those which were dissolved

before, or which should come to the King afterwards by the said Act, so that

when they are dissolved and in the King by force of this Act, this Act may

call them “late;” quod fuit concessum per Curiam.

Also they said, that the

words of the branch itself are general, scil. “any monasteries, &c. colleges, &c.

without any limitation, so that they conceived, that the words of the said

branch, made for them, and that this clause of discharge should extend to all

monasteries, &c. colleges, &c. quaecunque,

by what means soever they came

to the King; and they said, that the intent of the Act was so, for the intent

of the Act was to beneﬁt the King, and to make the subject more desirous of

purchasing them, &c. Against which it was said by the defendant’s counsel,

and resolved by the Court, that neither the words, nor the meaning of the

said branch, did extend to any monasteries, &c. but to those only, which came

to the King by the Act of 31 Hen. 8.; for it would be absurd, that the branch

of the Act of 31 Hen. 8. should extend to a future Act of Parliament, which

the makers of the Act of 31 Hen. 8., without the spirit of prophecy, could have

no foreknowledge of; but this clause of discharge of tithes, shall extend only

to those possessions which came to the King by the same Act. And where it

was said, that the ﬁrst words of the branch were general, the same is true, but

4. [Ed.: by virtue and by force]

5. [Ed.: which was granted by the court.]

6. [Ed.: whatsoever,]

[47 a]

The Archbishop of Canterbury’s Case 53

the conclusion of that branch is, “in as large and ample manner as the late

abbots, &c.” So that “late” being so intended, as it hath been agreed on the

other side, scil. only of religious houses which came to the King by 31 Hen.

8.; it is clear, that that branch cannot extend to this college, which came to

the King by the Act of 1 Edw. 6.

The third question was, admitting that the said college had come to the

King by the stat. of 31 Hen. 8. If such general allegation of unity of possession

of the rectory and of the lands in it, was sufﬁcient; and it was resolved by the

Court, That it was not sufﬁcient; for no unity of possession shall be sufﬁcient

within the same Act but a lawful and perpetual unity of possession time out

of mind, as it was adjudged M. 34 & 35 Eliz. in a prohibition between Valentine

Knightly, Esq. plaintiff, and William Spencer, Esq. defendant, where the case

was, the plaintiff in the prohibition shewed, that Philip, Abbot of Evesham,

and all his predecessors, time out of mind were seised as well of the rectory

impropriate of | Badby cum Newman, in the county of Northampton, as of

the manor of Badby cum Newman, in Badby aforesaid, in his demesne, as of

fee, in the right of his monastery, simul & semel, until the suppression of the

same monastery, quodque ratione inde,

the said abbot, and all his predecessors,

until the dissolution of the same monastery, had held the said manor dis-

charged from the payment of tithes, until the dissolution of the same house;

and shewed the branch of the statute of 31 Hen. 8. concerning discharge from

the payment of tithes, and conveyed the said manor to Knightly, and the said

rectory to Spencer, who libelled in the Spiritual Court for tithes of the de-

mesnes of the said manor, against Knightly, who upon the matter aforesaid

brought the prohibition, and it was adjudged, that the prohibition was main-

tainable; For the said branch of the Act of 31 Hen. 8. was made to prevent

two mischiefs, one, that otherwise all the impropriations of rectories to houses

of religion, had been disappropriate; for if the body to which the rectory is

appropriated, had been dissolved, the impropriation to such body had been

dissolved also, as appears by 3 Edw. 3. 21 Edw. 4. 1a. 21 Hen. 7. 4b. F. N. B.

33k, 33l. Another mischief was, that whereas many religious persons were dis-

charged from the payment of tithes, some by their order, as the Cistertians,

Templars, Hospitallers of St. John of Jerusalem; as appears by 10 Eliz. Dyer

277; some by prescription, some by composition, some by the Pope’s bulls,

7. [Ed.: and that by reason thereof,]

[47 b]

Part Two of the Reports54

&c.; and the greater part of religious houses, as the said Abbey of Evesham

was, were founded before the council of Lateran; and before time of memory,

it would be inﬁnite, and in a manner impossible by any search, to ﬁnd all the

discharges and immunities which such religious houses had. And for this rea-

son also the said branch was made. And the great doubt in the said case, was

conceived upon this word “discharge,” for it was said, that unity of possession

was not any discharge of tithes, and by consequence was not such discharge

as was within the intent of the said Act. And for the force of this word “dis-

charge,” 18 Edw. 3. Bar. 247. 35 Hen. 6. 10b. 22 Edw. 4. 40B. & 6. Hen. 7.

10b. were cited. But as to that it was resolved by the Court:

1. That the statute doth not say, discharge of tithes, but discharge of payment

of tithes.

2. The statute doth not say, discharge of payment of tithes, absolutely, but

as freely as the abbot, &c. held it at the day of dissolution; and then this word

“discharge” being referred to a certain time, may be intended of a suspension

by unity. As if a man seised of a rent disseises the tenant of the land, and

makes a feoffment with warranty, the feoffee shall vouch as of land discharged

of the rent, and yet the rent was but suspended; | but every suspension is a

discharge for a time, and the discharge being referred to the time of the war-

ranty, extends to the suspension. Quod vide

30 Edw. 3. 30. 3 Hen. 7. 4. 41a.

21 Hen. 7. 9a. b. F. N. B. 135e.

3. The statute saith, “as freely as the abbot, &c. retained the same.” And

it was said, that it was the intent of the King, and of the makers of the Act,

to discharge the land of payment of tithes in such cases of unity of possession,

being a general case, to induce purchasers the rather to purchase the land for

greater prices.

4. For the inﬁnite impossibility, and the impossible inﬁniteness, as hath

been said, all the discharges which such religious houses had, could not be

known; and the same construction was made in this Court, Hil. 24. Eliz. in

a prohibition between John Rose and William Gurling, for tithes in Flixton

in the county of Suffolk. See 18 Eliz. Dyer 349. The Parson of Peykirk’s Case.

And it was likewise resolved in the said Case of Knightly, that nothing could

be traversed but the unity, for ratione inde, &c.

is but the conclusion and the

8. [Ed.: which see, or look up]

9. [Ed.: by reason thereof, etc.]

[48 a]

The Archbishop of Canterbury’s Case 55

judgment of the law upon the precedent matter; but it was also resolved, that

if before the dissolution the farmers of the demesnes had paid tithes, &c. to

the abbot, &c., then the intendment of the law, by the reason of the said unity

of possession (which ought to be time out of mind), that the land was dis-

charged of the payment of tithes, will not hold place. For as Bracton saith,

stabitur presumptioni donec probetur in contrarium.

But if the lands were

always occupied by the abbots, or demised over, and no tithes at any time

paid for the same before the Act, although the land be conveyed to one, and

the rectory to another, yet the land is discharged of the payment of tithes;

And if the farmers of the demesnes had paid tithes before the Act, the same

should be pleaded by the defendant in the prohibition, and issue thereupon

might be taken, as it was in the like case, Trin. 38 Eliz. in this Court, between

Edward Grevil, Esq. possessor of the demesnes of the manor of Nasing, in

the county of Essex, plaintiff, and Martin Trot, proprietor of the Rectory of

Nasing, defendant, were against such unity of possession in manner and form

aforesaid alleged by the plaintiff in the Abbot of Waltham and his predecessors,

&c. in the rectory and demesnes, and with like conclusion as aforesaid: The

defendant alleged payment of tithes by the farmers of the said demesnes (with-

out any traverse by the rule of the Court) and issue was joined thereupon,

and it was tried against Trot, and therefore the prohibition stood. And it was

likewise resolved, that although the plaintiff in the case at Bar alleged, that

the master of the said college, at the time of the making of the said Act of 1

Edw. 6., held them | discharged of tithes; and although the lands of such

religious persons may be discharged of tithes by prescription, as it hath been

lately adjudged in the case of one Wright in this Court, or by composition,

&c.; yet such general allegation that he was discharged of tithes, was not

sufﬁcient, without shewing how he was discharged, either by prescription,

composition, or other lawful means. But if the land had come to the King

by the statute of 31 Hen. 8. then by force of the said branch of discharge of

the payment of tithes, such general allegation, that such prior, &c. held the

land at the time of the dissolution of the said priory discharged of the payment

of tithes, without shewing how, had been sufﬁcient, and so is the common

use in prohibitions.

The fourth question, in the case at Bar, was, whether any house which was

10. [Ed.: a presumption will stand good till the contrary is proved.]

[48 b]

Part Two of the Reports56

ecclesiastical, and not religious, as bishops, deans and chapters, archdeacons,

and the like, shall be within the Act of 31 Hen. 8.; for no house within the

Act of 31 Hen. 8. is said religious, but such which was regular, and which

consisted of such persons as had professed themselves, and vowed three things,

that is to say, obedience, voluntary poverty, and perpetual chastity; and those

are called in our law, dead persons in law. For after such profession their heirs

shall have their lands, and their executors or administrators their goods, and

that was called mors civilis;

which was the reason that when a lease for life

was made, always the Habendum

was, to have and to hold to him durante

vita sua naturali,

for it was then taken, that if the Habendum had been durante

vita sua (without saying naturali) the civil death, that is to say, the entry into

religion, had determined it. But it was resolved by the Court, that no eccle-

siastical house, if it be not religious, is within the Act of 31 Hen. 8. for divers

reasons:

1. The words of the Act are always, through the whole Act, in the copulative,

“religious and ecclesiastical,” so that if it be ecclesiastical only, it is out of the

Act.

2. The makers of the Act, gave the King as well those religious and eccle-

siastical houses which were dissolved, &c. as those which should be afterwards

dissolved; but none were dissolved before the Act, but only religious houses,

and no house ecclesiastical only; for no bishoprick, deanery, archdeaconry,

&c. or such-like ecclesiastical and secular corporation was dissolved before;

therefore no ecclesiastical house which was not religious, (which after the Act

shall be dissolved,) was within the intent and meaning of the said Act.

3. It is enacted by the statute of 31 Hen. 8. that all religious and ecclesiastical

houses, which after shall be dissolved, &c. shall be in the actual possession

of the King, in the same state and condition as they were at | the time of the

making of the said Act; upon which clause of the statute it was adjudged,

Pasch. 5. Eliz. Rot. 1029, reported by Serjeant Bendloes, and Mich.6&7

Eliz. Dyer 231., and Plow. Com. 207., that if an abbot after the said Act grants

the next avoidance of an advowson, or makes a lease for years, and afterwards

surrenders, so that by the Act, the possessions of the abbey ought to be in the

King, in the same state and condition as they were at the time of the making

11. [Ed.: civil death,]

12. [Ed.: “To have;” the portion of deed beginning with the words “To have and to hold.”]

13. [Ed.: during his natural life,]

[49 a]

The Archbishop of Canterbury’s Case 57

the Act; and at the time of making of the Act, the land and the advowson

were discharged of all interest, for this reason it was adjudged in both cases,

that the lease and the grant were void by the said Act. But if a dean and

chapter, and other such ecclesiastical and secular corporations should be within

the said Act, then if they should surrender their possessions, they would avoid

all their own grants and leases, which would be dangerous. And that was one

principal reason that the colleges, chantries, &c. which came to the King by

the Acts of 37 Hen. 8. or 1 Edw. 6. should not vest in the King by the Act of

31 Hen. 8., for the mischief before, for avoiding of their leases, grants, &c.

And to conclude this point, it was held in the Common Pleas, in Parret’s Case,

concerning the Priory of Frideswide, that if the house be not religious and

regular, it is not within the Act of 31 Hen. 8.

And as to the opinion of 10 Eliz. Dyer 280. Corbet’s Case, Concerning the

Priory of Norwich, it seems that that differs much from other deans and

chapters, for the Dean and Chapter of Norwich was once religious, for they

were prior and convent before; and yet that case was denied by Popham Chief

Justice, and some other of the Judges, for the reasons and causes aforesaid.

Fifthly, it was held by the Court, that although it is provided by the statute

of 1 Edw. 6. that the King shall have the lands of the colleges, &c. “in as ample

and large manner as the said priests, wardens, &c. had or enjoyed the same,”

that these general words should not discharge the land of any tithes, for they

are not issuing out of land, but are things distinct from the land. For as the

book is in 42 Edw. 3. 13. a. the prior shall have tithes of land against his own

feoffment of the same land; and it is no good cause of prohibition, to allege

unity of possession in a college, which came to the King by the statute of 1

Edw. 6., as a man may, by the statute of 31 Hen. 8., in an abbot, prior, &c.,

as aforesaid; for the statute of 1 Edw. 6. hath no such clause of | discharge of

payment of tithes, as the statute of 31 Hen. 8. hath. And therefore such per-

petual unity, as hath been said before, will not serve upon this Act of 1 Edw.

6. And afterwards a consultation

was granted: and another consultation was

granted the same term in another prohibition sued upon the same matter

between Green and Buffken. And Laurence Tanﬁeld and others, were of coun-

sel with the plaintiff, and the Attorney-General and others with the defendant.

14. [Ed.: A consultation returned an action to a court from which it was removed by the petition for

prohibition.]

[49 b]

Part Three of the Reports

The Third Part of Coke’s Reports was published in 1602. It was originally

published in Law French and entitled Le Tierce Part Des Reportes Del Edvvard

Coke Lattourney general le Roigne, de Divers Resolutions & Judgements donnes

avec graunde deliberaction, per les tresreurened Judges, & Sages dea la ley, de cases

& matters en ley queux ne sueront vnques resolve ou adjudge par deuant, & les

reasons & causes des dits resolutions & Judgements, durant les tresheureux regiment

de tresillustre & renomes Royne Elzabeth, le fountaine de tout Justice & la vie de

la ley. In English, The Third Part of the Reports of Sir Edward Coke, Knight.,

Her Majesty’s Attorney-General, of divers resolutions and Judgements given with

great deliberation, by the most reverend Judges and Sages of the Law, of Cases

and matters in law which were never Resolved or Adjudged Before: and the Reasons

and Causes of the said resolutions and Judgments, during the most happy Reign

of the most Illustrious and Renowned Queen Elizabeth, the Fountain of all Justice,

and the life of the Law. The cases in this part continue to discuss issues of

property, with an emphasis on cases of ﬁrst impression resolving recent issues

of statutory construction and the legal deﬁnitions of estates in land. There is

a greater emphasis in these cases, though, of matters dealing with relations

between husband and wife, as well as guardianship and inheritance. There are

also more cases considering the nature of leaseholds and the problems of debt-

ors and creditors.

Epigrams from the title page:

In memoria aeterna erit justus, & non tenebit ab auditione mala. Psal. 105.

1. [Ed.: The just man shall be in everlasting remembrance, and he shall not be afraid of evil tidings.

(Psalms 112:6–7, or 111:7 in the Vulgate.)]

Preface 59

Justicia omnium virtutum princeps est, tuta & ﬁda comes humanae vitae; ea enim

imperia, regna, populi, civitates reguntur, quae si de medio tollatur, nec constare possit

hominum societas.

Isidor.

Justicia in sese virtutes continet omnes.

(Preface)

To the Reader.

How proﬁtable and necessarie the Reports of the Judgements and Cases in

Law published in former ages have beene, may unto the learned Reader by

these two considerations amongst others evidently appeare. First, that the

Kings of this Realme, that is to say, Edward the third, Henry the fourth, Henry

the ﬁfth, Henry the sixth, Edward the fourth, Richard the third, and Henry

the seventh did select and appoint foure discreet and learned professors of

Law, to report the judgements and opinions of the Reverend Judges, as well

for resolving of such doubts and questions wherein there was (as in all other

Arts and Sciences there often fall out) diversitie of opinions, as also for the

true and genuine sense and construction of such Statutes and Actes of Par-

liament, as were from time to time made and enacted. To the end that all the

Judges and Justices in all the severall parts of the Realme might as it were

with one mouth in all mens cases pronounce one and the same sentence, whose

learned workes are extant and digested into Nine severall volumes, wherein

if you observe the unitie and consent of so many severall Judges and Courts

in so many successions of ages, and the coherence and concordance of such

inﬁnite severall and divers cases, (one as it were with sweet consent and amitie

proving and approving another) it may be questioned whether the matter be

worthy of greater admiration or commendation: For as in nature we see the

inﬁnite distinction of things proceed from some unitie, as many ﬂowers from

one root, many rivers from one fountain, many arteries in the body of man

from one heart, many veyns from one liver, and many sinewes from the braine:

So without question, Lex orta est cum mente divina,

and this admirable unitie

2. [Ed.: Justice is the prince of all virtues, a safe and faithful companion of human life; indeed it rules

empires, kingdoms, peoples, and cities; and, if it is taken away, human society cannot stand ﬁrm.]

3. [Ed.: Justice contains all the virtues in itself.]

1. [Ed.: Law arose by the divine will,]

Part Three of the Reports60

and consent in such diversitie of things proceed from God the fountaine and

founder of all good Lawes and constitutions. Secondly, in consideration of

the sweet and delectable fruit that hath beene reaped by those workes for the

due administration of justice, and the government of the Realme in peace and

tranquilitie. Besides these there bee Reports ﬁt for stronger capacities of equall

authority, but of lesse perspicuity then the other, and these bee the judiciall

records of the Kings Courts, wherein cases of importance and difﬁcultie are

upon great consultation and advisement adjudged and determined, in which

Records the reasons or causes of the Judgements are not expressed; For wise

and learned men doe before they judge, labour to reach to the depth of all

the reasons of the case in question, but in their judgements expresse not any:

And in troth, if Judges should set downe the reasons and causes of their judge-

ments within every Record, that immense labour should withdraw them from

the necessarie services of the Common-wealth, and their Records should grow

to be like Elephantini libri

of inﬁnite length, and in mine opinion lose some-

what of their present authoritie and reverence; And this is also worthie for

learned and grave men to imitate. But mine advise is, that whensoever a man

is enforced to yeeld a reason of his opinion or judgement, that then hee set

downe all authorities, presidents, reasons, arguments, and inferences what-

soever that may bee probably applied to the case in question; For some will

be perswaded, or drawne by one, and some by another, according as the ca-

pacitie or understanding of the hearer or reader is. These Records for that

they containe great and hidden treasure, are faithfully and safely kept (as they

well deserve) in the Kings treasurie: And yet not so kept but that any Subject

may for his necessary use and beneﬁte have accesse thereunto, which was the

auncient Law of England, and so is declared by an Act of Parliament in 46.

Ed. 3. in these words “Item pria les Commons, que come recorde& quecunque;

chose en la Court le Roy de reason devoient demurr’ illonques pur perpetual

evidence, & eide de toutz parties a ycelly, & de touts ceux a queux ea nul

maner ils atteignent, quant mestier lour fuit. Et ia de novell refusent en la

court nostre dit Seign’ de serche ou evidence encounter le Roy ou disadvantage

de luy; Que pleise ordeiner per estatute, que serche & exempliﬁcation soit

faitz as toutz gentz, de queconque recorde que les touche en ascun maner’,

auxybien de ce que chiet encounter le Roy come autres gentz. Le Roy le

2. [Ed.: Books of elephantine proportions.]

Preface 61

voet”:

Right proﬁtable also are the auncient bookes of the Common Lawes

yet extant; as Glanvile, Bracton, Britton, Fleta, Ingham, and Novae narrationes,

and those also of later times, as the Old Tenures, Olde Natura brevium,Littleton,

Doctor and Student, Perkins, Fitzh. Natura brevium, and Stamford, of which

the Register, Littleton, Fitzherbert, and Stamford are most necessarie and of

greatest authoritie, and excellencie; And yet the other also are not without their

fruit. In reading of the cases in the Bookes at large, which sometimes are obscure

and misprinted, if the Reader after the diligent reading of the case, shall observe

how the case is abridged in those two great Abridgements of justice Fitzherbert,

and Sir Robert Brooke, it will both illustrate the case, and delight the Readers;

And yet neither that of Statham, nor that of the Booke of Assises is to be rejected:

And for pleading the great Booke of Entries is of singular use and utilitie. To

the former Reports you may adde the exquisite and elaborate Commentaries

at large of Master Plowden, a grave man and singularly well learned; and the

summarie and fruitfull observations of that famous and most reverend Judge

and sage of the Law, Sir James Dyer Knight, late chiefe Justice of the Court

of Common Pleas, and mine owne simple labours: Then have you 15. Bookes

or Treatises, and as many volumes of the Reports, besides the Abridgements

of the Common Lawes; For I speake not of the Statutes and Actes of Parlia-

ment, whereof there bee divers great volumes. And for that it is hard for a

man to report any part or branch of any Art or Science justly and truely, which

hee professeth not, and impossible to make a just and true relation of any

thing that he understands not; I pray thee beware of Chronicle Law reported

in our Annales, for that will undoubtedly lead thee to error: For example, they

say that William the Conquerour decreed that there should be Sheriffes in

every Shire, and Justices of Peace to keepe the Countries in quiet, and to see

offenders punished, whereas the learned know that Sheriffes were great ofﬁcers

and ministers of justice, as now they are, long before the Conquest, and Justices

of Peace had not their being untill almost three hundred yeares after, viz. in

the ﬁrst yeare of Edward the third. But the module of a Preface will not suffer

mee to enter into that matter, whereat my minde began to kindle: I will onely

3. [Ed.: Item, by the Commons, that as to records & any actions in the King’s Court, reasons must

remain there as perpetual evidence and aid for all parties to the same and to all who must know the length

of their attaints. And now from recent denials in our lord’s courts of search or evidence against the King

or to others’ disadvantage, that ordinary pleas under statute, that search and precedents be made for all

people, of any record that touches in appropriate cases between the King and other people. The King

wishes it:]

Part Three of the Reports62

(to incite the studious Reader to the diligent observation of the Bookes,

wherein bee hidden inﬁnite treasure of knowledge,) note unto thee divers

excellent things worthie thy observation out of the booke case in vicesimo sexto

libro Assisarum placito 24.

for a president for thee to follow in many other

cases: There it appeareth, that in a Writ of Assise the Abbot of B. claimed to

have Conusauns of plea, and writs of Assise, and other originall writs out of

the Kings Courts by prescription time out of minde of man, in the times of

Saint Edmund, and Saint Edward the Confessor, Kings of this Realme before

the Conquest; and shewed divers allowances thereof, and that King Henry the

ﬁrst conﬁrmed their usages, and that they should have conusance of Pleas, so

that the Justices of the one Bench, or the other, should not intermeddle, out

of which Record (being now above three hundred yeares past) it appeareth,

that the predecessors of that Abbot had time out of minde of man in those

Kings raignes (that is whereof no man then knew the contrarie, either out of

his owne memorie, or by any Record, or other proofe) writs of Assise, and

other originall writs out of the Kings Courts. Now albeit that the learned do

know that originall writs are directed to the Sheriffe of the Countie where the

land doth lie, yet it is not impertinent to set downe the forme of the writ of

Assise for the better manifestation of divers things worthy of observation. Rex

Vicecomiti salutem: Questus est nobis. A. quod B. iniuste & sine iudicio disseisiuit

eum de libero tenemento suo in E. & c. Et ideo tibi praecipimus, quod si praedict.

A. fecerit te securum de clamore suo prosequendo, tunc facias tenementum illud

reseisire de catallis quae in ipso capt’ fuer’, & ipsum tenementum cum catallis esse

in pace usque ad primam Assisam cum justiciarii nostri in partes illas venerint,

& interim fac’xij, liberos & legales homines de vicineto illo vide-re tenementum

illud. Et nomina eorum imbreviar’ &’c.

And this forme of writ appeareth in

Bracton lib.4. cap.16.and in Glanvile in his 13. Booke, who wrote not long after

the Conquest: Out of which I gather foure things. 1. That time out of minde

of man before the Conquest there had been Sheriffes, for the writ of Assise,

4. [Ed.: in the sixth book of assizes, plea 24 (i.e., 6 Edw. III, Lib. Ass., pl. 24).]

5. [Ed.: The King to the Sheriff, greeting: A. has complained to us that B. has wrongfully and without

judgment disseised him of his free tenement in E. etc. Therefore we command you that, if the aforesaid

A. shall make you secure for prosecuting his claim, then cause that tenement to be reseised of the chattels

which were taken in it, and cause the selfsame tenement with the chattels to be in peace until our Justices

shall come to the ﬁrst Assize in those parts, and in the mean time cause twelve free and lawful men of the

neighbourhood to view the tenement; and cause their names to be written down etc.]

Preface 63

and every other originall writ is directed to the Sheriffe, and cannot be directed

to any other, unlesse it be in speciall cases to the Coroner, who then stands

in the place of the Sheriffe. 2. That likewise by all that time there were trials

by the oath of twelve men: for the words of the writ of Assise are, Et interim

fac’. 12. liberos & legales homines &’c.

3. That by like time there had beene

writs of Afﬁfe and other originall writs retournable into the Kings Courts,

which (seeing they be as Justice Fitzberbert saith in his preface to his booke

of Natura brevium, the rules and principles of the science of the Common

Law) doe manifestly prove, that the Common Law of England had beene time

out of minde of man before the Conquest, and was not altered or changed

by the Conquerour. 4. That by all that time there had beene a court of Chaun-

cerie, for all originals doe issue out of that Court, and none other: And in

our bookes it appeareth, that all those Mannors that were in the hands of

Saint Edward the Confessor, are to this day called Auncient demesne; And

that all King Edward the Confessors tenants in Assisis, Iuratis, seu recogni-

tionibus poni non debent;

which immunity and priviledge remaines to the

tenants of those manors, to whose hands soever the same bee come, to this

day; And this appeareth by the booke of Domes-day now remaining in the

Eschequer, which was made in the raigne of Saint Edward the Confessor, as

it appeareth in Fitzh. Nat. Breuiu¯ fol. 16. So as without controveisie the triall

by Juries, who ever were returned by Sheriffes, was before the Conquest. In

the Booke of Domes-day you shall also reade, that Ecclesia sancta Mariae de

Worcester habet Hundred’ voc’ Oswaldshaw, in qua iacent 300. hidae, de quibus

Episcopus ipsius Ecclesiae a constitutione antiquorum temporum habet omnes Red-

ditiones Socharum, & omnes consuetudines inibi pertinentes ad dominicum vic-

tum, & Regis servitium & suum: Ita ut nullus Vicecomes ullam ibi habere possit

quaerelam, nec in aliquo placito, nec in aliqua qualibet causa,

And it appeareth

by the Charter it self, that King Edgar long before the Conquest, granted to

the Church of Worcester the said franchises and hereditaments; whereby it is

6. [Ed.: And in the mean time cause twelve free and lawful men, etc.]

7. [Ed.: ought not to be put into assizes, juries, or recognitions;]

8. [Ed.: The Church of St. Mary of Worcester has a hundred called Oswaldshaw, in which lie three

hundred hides, from which the Bishop of that Church by an ancient constitution has all the Rents of

Socmen and all the customs therein belonging for the lord’s maintenance, and the King’s service (i.e. knight-

service) and his own, in such a way that the Sheriff may have (i.e. hear) any plaint there in any plea or

cause whatsoever,]

Part Three of the Reports64

evident that then there were Sheriffes: And that the Sheriffes had then a Court

and determined causes, held Pleas by plaint as to this day they doe, and that

there were Redditiones Socharum,

which prove Socage tenure, and Regis ser-

vitium

knights service, then called Regis servitium, because it was done to

or for the King, and the Realme: The same King granted the like Charter to

the Monasterie of Saint Andrew, in Ely, viz. 2. hundreds within the Isle, and

5. and a halfe without, together with viewes of franke pledge, and by expresse

words, that no Sheriffe should intermeddle within the same; But this much

(if in a case so evident it be not too much) shall sufﬁce. But if you will give

any faith to them, let it be in those things they have published concerning

the antiquitie, and honour of the Common Lawes: First, they say that Brutus

the ﬁrst king of this land, as soone as hee had settled himselfe in his kingdome,

for the safe and peaceable government of his people wrote a book in the Greeke

tongue, calling it the lawes of the Britans, and hee collected the same out of

the Laws of the Trojans: This king, they say, died after the creation of the

World, 2850. yeares, and before the Incarnation of Christ 1130. years, Samuel

then being Judge of Israel. I will not examine these things in a Quo warranto,

the ground thereof I thinke was best knowne to the Authors and writers of

them; but that the Lawes of the auncient Britans, their contracts and other

instruments: and the Records and judiciall proceedings of their Judges were

written and sentenced in the Greeke tongue, it is plaine and evident by proofs

luculent & uncontrolable: for the proofe whereof I shall be enforced onely to

point out the heads of some few reasons, yet so as you may prosecute the same

from the fountaines themselves at your good pleasure, and greater leasure.

And ﬁrst take a just testimonie out of the Commentaries of Julius Caesar,

(whose relations are as true, as the stile and phrase is perfect.) Hee in his 6.

Booke of the Warres of France faith, that in antient time the Nobilitie of

France were all of two sorts, Druides or Equites; the one for matters of gov-

ernment at home, the other for martiall empolyments abroad: To the Druides

appertained the ordering as well of matters Ecclesiasticall, as the admiration

of the Lawes and government of the Common-wealth; for so he saith, De

9. [Ed.: Rents of Socmen (Socmen are free tenants who pay socage, or ploughing the lord’s land for

a set number of days each year. A “soc” was a plough.)]

10. [Ed.: King’s Service (also “Knight’s Service,” or tenure in land held by obligation for militaryservice.)]

11. [Ed.: A writ of right for the king against anyone who claimed or usurped any ofﬁce, franchise, or

liberty, used here metaphorically.]

Preface 65

omnibus controversiis publicis privatisq; constituunt & c. & si quod est admissum

facinus, si caedes facta, si de haereditate, de ﬁnibus controversia est, decernunt

praemia, poenasq; constituunt.

Concerning the mysteries of their Religion,

they neither did, nor might commit them to writing, but for the dispatching

and deciding of causes, as well publique as private saith hee, Graecis literis

utuntur,

they used to doe it in the Greeke tongue, to the end that their

disciplines might not be made common among the vulgar: Now then this

being granted that the Druides did customarily sentence causes, and order

matters publike and private in the Greeke language, it will easily follow, that

the very same was likewise used here in Brittanny, and the consequence is

evident and necessarie, for that the whole society, and all the discipline of the

Druides in France, was nothing else but a very Colony taken out from our

British Druides, as Caesar himselfe in the same place afﬁrmeth, from whence

they learned and received all their discipline for managing of causes whatsoever.

Disciplina Druidum (saith he) in Britannia reperta, atq; inde in Galliam trans-

lata: Et nunc qui diligentius illam disciplinam cognoscere volunt, in Britanniam

discendi causa proﬁciscuntur.

The very same witnesseth Plinie also Lib. 3. ca.

I. towards the end. Nay their very name and appellation may serve for a proofe

of the use of the Greeke tongue, they being called Drudes of

dru˜c an Oake,

because saith Plinie they frequent woods where oakes are, and in all their

sacriﬁces use the leaves of those trees. Adde secondly to this, the daily com-

merce and traﬁque betwixt those Britans and French so much spoken of by

Caesar, Strabo, and Pliny: And therefore no doubt but they used one and the

same forme of covenanting by writing; which, that it was in Greeke, Strabo

plainly afﬁrmeth Lib.4. Geographiae, that the Massilienses a Greek Colonie,

and as hystories report the chiefest merchants then in the world next the

Phoenicians, so spread abroad the desire of learning their language, that even

vulgarly, instancing therein the French Nation, they did

ta’ sumbo´laia

ÿEllhnistı’ gra´fein

write saith hee their deeds and obligations in Greeke;

12. [Ed.: In fact it is they who decide almost all controversies, public and private, etc., and if any crime

has been committed, or murder done, or there is a dispute about inheritance, or boundaries, they decide

it, appointing the rewards and punishments.]

13. [Ed.: use the Greek alphabet,]

14. [Ed.: The teaching of the Druids . . . having started in Britain, and having been from thence translated

into Gaul, anyone nowadays who wishes to know that discipline more fully must go to Britain in order

to learn it.]

15. [Ed.: write their contracts or bonds in the Greek language,]

Part Three of the Reports66

And that there passed continuall trafﬁque likewise betwixt these very Mas-

siliens and the Britaines, Strabo in the same place directly afﬁrmeth, in that

saith he they vied to fetch tin from the British Islands to Massalia

e◊k tw˜n

Bretannikw˜ n nhsw˜nei◊c th’ n Massalı´an komı´sesjai

and for this it is that

Juvenall who wrote above 1500. yeares past in his 15. Satyre saith, Gallia caus-

sidicos docuit facu¯da Britannos:

Not that the French men did teach the Law-

yers of England to be eloquent, (which Caesar a most certaine Author denieth)

but that a Colonel of Grecians residing in France as Strabo saith, Gallia was

said to teach the Professors of the Lawes of England, being written in the

Greeke tongue, Eloquence. Now for matters of Religion, Strabo in his 4. book

observeth that the Britaines worshipped Ceres and Proserpina, and sacriﬁced

unto them according to the Greeke forme of superstition as they did

e◊n tv˜

Samojra´kv

in Samos. Lastly, that as well the Grecians had traﬁque here,

as that their language was not unknown to the auncient Britaines, the very

names given unto this our Countrey doe declare and prove: For Bret (from

whence our Writers as from an old British word derive the appellation of this

Island and inhabitants, because the ancient Britaines were wont to paint their

bodies, & in Juvenall are called Picti Britanni,

which was said Caesar lib. 5.

to make them seem fearfull in ﬁght to their enemies) the same word in that

very signiﬁcation is Greek, and

to’ bre´tac

in Aeschylus and Lycophoron sig-

niﬁes a picture: Now the other part of the word

tanı´a

it is in Greeke as

much as Land or Countrey: I omit the name Albion, at the ﬁrst Olbion, or

the happy Island, in Greek, together with a great multitude of English words,

as Chirographer, Prothonot. Ideote & c. yet tasting of a Greek beginning: For

that hereby as I think it is sufﬁciently proved that the lawes of England are

of much greater antiquity than they are reported to be, & than any the Con-

stitutions or Lawes imperiall of Roman Emperors. Now therefore to return

to our Chronologers, they further say that 441. yeares before the Incarnation

of Christ, Mulmutius, of some called Dunvallo M. of some Dovebant, did write

2. Bookes of the Lawes of the Britons, the one called Stat. Municipalia, and

16. [Ed.: to take from the British islands to Massalia.]

17. [Ed.: The Gaulish lawyers taught the Britons eloquence:]

18. [Ed.: on Samothrace, (note: not Samos).]

19. [Ed.: the Painted Britons,]

20. [Ed.: the idols (Coke seems here to mistake the sense of idol from “icon” to be “picture.”)]

21. [Ed.: (a sufﬁx, which Coke presumes to be of a Hellenic form for “land of.”)]

Preface 67

the other Leges Judiciariae, for so the same doe signiﬁe in the British tongue,

wherein he wrote the same, which is as much to say as the Statute Law, &

the Common Law: And 356. yeares before the birth of Christ, Mercia Proba

Queen. & wife of King Gwintelin wrote a booke of the Lawes of England in

the British tongue, calling it Merchenleg: King Alfred, or Alured King of the

West Saxons, 871. years after Christ wrote a Book of the laws of England, and

called the same, Breviarum quoddam qd’ composuit ex diversis legibus, Troia-

norum, Graecorum, Britannorum, Saxonum, & Dacorum:

In the year after

the incarnation of Christ 653. Sigabert or Sigesbert orientalium Anglorum Rex,

wrote a Booke of the Lawes of England, calling it Legum instituta

King

Edward of that name before the Conquest the 3. Ex immensa Legum congerie,

quas Brittanni, Romani, Angli, & Daci condiderunt, optima quaeq; selegit, ac

in unam coegit, quam vocari voluit Legem communem:

These and much more

to like purpose shall you read in Gildas, Gervasius Tilburien. Galfrid. of Mont-

mouth, Will’ of Malmsbury, Hoveden, Matthew of Westminster, Polidor Vir-

gil’ of Harding, Caxton, Fabian, Baleus, & others: So as it appeareth by them,

that before the Conquest there were amongst others 7. Volumes or bookes

intituled, Leges Britannorum, Statuta Municipalia, Leges Judiciariae, Mar-

chenleg, Breviariu˘ legum, Legum Instituta, & Communes Lex. Cum insignis su-

bactor. Angliae Rex Will’ ulteriores insulae ﬁnes suo subiagasset imperis, & rebelliu˜

mentes terribiliu˜ perdomuisset et exemplis, ne libera de caetero daretur erroris

facultas, decrevit subiectum sibi populu˜ Juri scripto legibusq; subiicere: Propositis

igitur Legibus Anglicanis secundum tripartitam eorum distinctionem, hoc est,

Marchenleg, Daneleg, & West-Saxonleg, quasdam reprobavit, quasdam aute˘ ap-

probans transmarinas Newestriae leges, que ad regnipacem tuenda efﬁcacissimae

& videbantur adiecit.

This saith Gervasius Tilburiensis, one that wrote in the

Conquerors time, or shortly after him: Whereby if the same were admitted,

it appeareth that some of the English Lawes hee allowed, and such of his owne

as he added where efﬁcacissimae ad Regni pacem tuenda˜,

and therefore if such

22. [Ed.: A certain abridgment which is composed from various laws of the Trojans, Greeks, Britons,

Saxons, and Danes:]

23. [Ed.: Institutes of the Laws.]

24. [Ed.: From the immense mass of laws which were left by the Britons, Romans, Angles, and Danes,

he selected the best and digested them into one body which he called the Common Law:]

25. [Ed.: The laws of the Britons, the municipal statutes, the judge-made laws, the law of Mercia, the

breviary of laws, the institute of the laws, and the Common Law . . .]

26. [Ed.: most efﬁcacious for protecting the peace of the realm,]

Part Three of the Reports68

Lawes as he added of his owne had continued (as in troth they did not) they

were not so shamelessely and falsly to be slandered, as some maliciously and

ignorantly have done; of whom I onely say:

Aut haec in nostros fabricata est machina muros,

Aut aliquis latet error, equo ne credite Teucri.

For thy satisfaction herein, heare what Sir Jo. Fortescue knight, chief Justice

of England, a man of excellent learning and authority, wrote of this matter

lib. I. cap. 17. speaking of the Lawes of England; Quae si optimae & non

extitissent, aliqui Regum illorum justitia, ratione, seu affectione co˜ncitati eas mu-

tassent, aut omnino delevissent, & maxime Romani qui legibus suis quasi totum

orbis reliquum judicabant.

After the Conquest, King Henry the ﬁrst the Con-

querors sonne, surnamed Beauclerke, a man excellently learned, because he

abolished such customs of Normandy as his father added to our Common

Lawes, is said to have restored the ancient lawes of England: King Henry the

second wrote a book of the Common Lawes and statutes of England, [divided

into two tomes,] and according to the same division, intituled the one pro

Republica Leges,

and the other Statuta Regalia,

whereof not any fragment

doth now remaine. And yet by the way I could but smile when I read in some

of them, that when Cardinal Woolsey at the last perceived untrue surmises and

fained complaints for the most part of such poore people as laded him with

Petitions, he then waxed weary of hearing their causes, & ordained by the

Kings Commission divers under Courts to heare complaints by Bill of poore

people; The one was kept in the White hall, the other before the Kings Almoner

Doctor Stokesly, a man that had more learning then discretion to be a Judge:

the third was kept in the Lord Treasorers Chamber beside the Starre-chamber:

and the fourth at the Rolles at the afternoone: These Courts were greatly

haunted for a time, but at the last the people perceived that much delay was

used in these Courts, & few matters ended, & when they were ended, they

27. [Ed.: Either this machine has been made within our walls, or there is some mistake: do not trust

the horse of Teucrus (i.e. the Trojan horse).]

28. [Ed.: And if these [laws] had not been of the best, some of those kings would have changed them

by reason of justice, or merely out of caprice, or totally abrogated them: and especially the Romans, who

judged almost the whole of the rest of the world by their laws.]

29. [Ed.: laws for the common weal,]

30. [Ed.: royal laws,]

Preface 69

bound no man by the Law, then every man was weary of them, and resorted

to the Common Law: but Tractent fabrilia fabri;

and yet it were to be wished,

that they had kept themselves within their proper element, for peradventure

with wise men some of them have reaped the reward of those that are not

beleeved when they say the troth. To the grave and learned writers of Histories

my advice is, that they meddle not with any point or secret of any Art or

science, especially with the lawes of this realm, before they conferre with some

learned in that profession. And where it is reported that it was not lawfull for

any common person to use any Seale to any Deed, Charter, or other Instrument

in the raigne of Henry the second nor long after, And therefore Richard Lacie

chief Justice of England in the raigne of Henry the second is said to have

reprehended a common person for that he used a patent Seale, when as that

pertained as he said to the King and Nobility only; Against which, Ingulphus

Abbot of Croyland, who is said to have come in with the Conqueror, saith,

Ante Normannorum ingresssum chirographa ﬁrma erant cum crucibus aureis,

aliisque signaculis sed normannos cum cerea impressione uniuscuiusque; speciale

sigillum sub intitulatione trium vel quatuor testium conﬁcere chirographa insti-

tuere.

By which it appeareth that in the Conquerors time every man might

seale with a private seale. But letting these passe, and to beleeve neither till

both of them be agreed, in troth it was ever unlawfull for a gentleman to

usurpe the armes of seales of another; and to forge or counterfait the seale of

any other was unlawfull for any. But otherwise it was never unlawful for any

Subject to put his owne seale to any Instrument, as may appeare by inﬁnite

Presidents, amongst which for an instance I thought good here to remember

one for all, which Master Joseph Holland of the Inner Temple a good Antiquary

and a lover of learning delivered unto me, and beareth date Ann. 33. H. 2.

and is sealed at this present with two faire ancient Seales, viz. of Walter of

Fridaltorpe and Helias his sonne: and for that it containeth divers matters

worthy observation, I thought good to exempliﬁe it to the Reader de verbo

in verbum. Haec est concordia facta in Comitatu Eborum die Lunae proxime

post festum Sancti Hillarii anno regni regis Henrici secundi tricesimo tertio, inter

31. [Ed.: Workmen should stick to their trade;]

32. [Ed.: Before the arrival of the Normans, charters were authenticated with gold crosses and other

devices; but the Normans began to make charters with wax impressions from the special seals which everyone

had, under the names of three or four witnesses.]

Part Three of the Reports70

Walterum de Fridastorpe & Heliam ﬁlium eius, & inter Johannem de Beverlaco,

scilicet de une carucata terrae in Fridastorpe, quam predict Joh. clamavit versas

eos in eodem Comitatu sicut jus & haereditagium fuum per breve domini Regis,

scil, quod praedict Walt & Helias ﬁlius eius dederunt, & reddiderunt praedict

Joh. pro clameo & recto suo quod in ipsa terra habuit, unam dimid’ carucatam

terrae in eadem villa, & unam tostum, scilicet illam dimid’ carucatam terrae quae

iacet inter terram Galfrid’ Wanlin & inter praedict’ carucatam terrae quam cla-

mavit, & illud tostum quod iacet inter terram Adae ﬁlie Norman’ de Sezevall,

& terram Hen. ﬁllii Thom. plenarie cum omnibus pertinentiis suis infra villam

& extra, sine ullo retenemento; Hanc vero dimid’ carucatam terrae & tostam

plenarie cum omnibus pertinentiis suit tenebit predict’ Joh. & haered’ sui de prae-

dict’ Heliae heredibus suis: Reddendo inde annuatim praedict’ Heliae & haere-

dibus suis 12. d. ad terminum Pentecost, pro omnibus servitiis que ad terram illam

pertinent: Et praedict’ Walterus & Helias & haered’ sui warrantizabu˜t praedict’

Jobanni & haeredibus suis praefat’ dimit’ carucatam terrae & tostum, cum om-

nibus pertinentiis contra omnes homines: Hanc vero concordiam ex utraque parte

afﬁdaverunt ﬁrmiter & ﬁne dolo tenend’ ﬁcut praesens chirographum testatur: &

saepe dictus Walterus atturnavit praedict’ Johannem in eodem Comitat’ ad fa-

ciendum praedict’ servicium praedict’ Heliae ﬁlio suo, & haeredibus suis; His

testibus Remigio Dapifero, Ranulpho de Glanuill’ tunc Vicecomite Eborum, Ran-

ulpho ﬁlio Walteri, Rogero de Badnut, Warino de Rollesby, Alano de Sinderby,

Radulpho ﬁlio Radulph. Will’ de Aton’, Nic. de Warham, Roberto de Mara, Alano

ﬁlio Heliae, Roberto de Melsa, Thom. ﬁlio Jodlani, Walram, ﬁlio Will’ Waltero

de Bomadnum, Alano Malebacke, Adamo de Killu˜, Roberto de Malteby, Gilberto

de Torini Willihelmo Agullu˜, Gilberto ﬁlio Richardi, Willihelmo de Backestorpe,

Helia Latimer; By which Writ the King commanded the Lord: on Quod sine

dilatione plenum rectum teneat Johanni de Beverlaco de una caracata terrae cu˜

pertinentiis in Fridastorpe quam clamat, & quam Walterus de Fridastorpe, &

Helias ﬁlius eius ei deforc’, Et nisi fecerit Vicecomes Eborum faciat, ne amplius

inde clamorem audiamas pro defectu recti.

For thy better understanding,

33. [Ed.: . . . word for word: This is the ﬁnal concord made in the county of York on the Monday

next after the feast of St. Hilary in the thirty-third year of the reign of King Henry the second, between

Walter of Fridaythorpe and Elias his son, and John of Beverley, namely concerning one carucate of land

in Fridaythorpe which the aforesaid John has claimed against him in the same county court as his right

and inheritance, by the lord king’s writ, that is to say, that the aforesaid Walter and Elias his son have given

and rendered to the aforesaid John his claim and the right which he had in that land, half a carucate of

Preface 71

hereby it appeareth that Joh. de Beverlaco

brought a Writ of Right against

Walter of Fridastorpe, and Helias his sonne, of one Ploughland in Fridastorpe,

directed to the Lord of the Mannour of whom the said plough land was holden,

which Writ was after by a Precept made by the Sherife called a Tolt, (because

it doth tollere loquelam,

from the Court Baron to the Countie Court) re-

mooved into the Countie Court, where before Ranulph de Glanvilla then

Sherife of Yorke, this concord was by consent of parties made in the County

Court, by force of the Commission given to the Sherife in default of the Lord

by the said Writ, (viz.) That the Sherife in his County Court should see that

the demandant should without delay have his full right in the said plough

land, upon which Writ in that court this Concord was made, and not onely

entred into the Rols of the Countie Court, but by way of Instrument indented,

mutually sealed by either partie; So as by this Concord the perclose of the

writ, Ne amplius inde clamorem audiamus pro defectu recti,

was satisﬁed: And

to the end that this concord might be the more ﬁrmely kept, each partie bound

him selfe to the other by an Afﬁdavit. All this is necessarily collected out of

land in the same vill, and one toft, that is to say, that half carucate of land which lies between the land

of Geoffrey Waulin and the aforesaid carucate of land which he claimed, and that toft which lies between

the land of Adam, son of Norman de Sexenall, and the land of Henry, son of Thomas, fully with all their

appurtenances within the vill and without, without any withholding, [to hold] this half carucate of land

and toft fully with all their appurtenances unto the aforesaid John and his heirs, of the aforesaid Elias and

his heirs, rendering thereof annually to the aforesaid Elias and his heirs twelve pence at Whitsun for all

services which belong to that land; and the aforesaid Walter and Elias and their heirs shall warrant unto

the aforesaid John and his heirs the aforesaid half carucate of land and the toft, with all their appurtenances,

against all men; and this concord they have sworn on both sides to keep ﬁrmly and without deceit, as the

present chirograph witnesses; and the said Walter has often attorned the aforesaid John in the same county

to do the aforesaid service to the aforesaid Elias his son, and his heirs. These being witnesses, Remigius

Dapifer, Ranulph de Glanvill, then sheriff of Yorkshire, Ranulph son of Walter, Roger de Badnut, Warin

de Rollesby, Alan de Sinderby, Ralph son of Ralph, William de Aton, Nicholas de Warham, Robert de

Mara, Alan son of Elias, Robert de Melsa (Meaux), Thomas son of Jodlan, Walram son of William, Walter

de Bomadnum, Alan Malebacke, Adam de Killum, Robert de Malteby, Gilbert de Torini, William Agullum,

Gilbert son of Richard, William de Backestorpe, Elias Latimer. [By which writ the king commanded the

lord:] ‘that without delay he shall do full right to John of Beverley in respect of one carucate of land with

the appurtenances in Fridaythorpe, which he claims, and which Walter of Fridaythorpe and Elias his son

deforce from him, so that we may hear no more complaint hereof for want of right’. (A “carucate” was

the area of ploughland that could be turned in one day with one plough; also called a “hide,” it varied

between 60 and 120 acres.)]

34. [Ed.: John of Beverley]

35. [Ed.: raise up the claim,]

36. [Ed.: So that we may hear no more complaint hereof for want of right,]

Part Three of the Reports72

this auncient & learned Instrument: for per breve Domini Regis

is expounded

to bee a Writ of Right by these words clamavit &c. ius suum;

but directly

after when it is said pro clameo & recto suo:

Also it appeareth that this concord

was made in comit’ Eborum,

and clamaevit versus eos in eodem comit’ &c. per

breve domini regis:

And all this was done coram Ranulpho de Glanvilla tunc

Vicec’:

And the learned do know that a writ of Right cannot be retournable

in the County court, but must of necessitie be remooved thither by Tolt. Good

Reader, I dare conﬁdently afﬁrme unto thee, that never any Abbot, Monke,

or Churchman that wrote any of our Annals could have understood this ex-

cellent and well indicted concord. But to returne againe to these grave and

learned Reporters of the Lawes, in former times, who (as I take it) about the

end of the raigne of King Henry the 7. ceased, betweene which and the cases

reported in the raigne of Henry the 8. you may observe no small difference:

So as about the end of the raigne of Henry the 7. it was thought by the Sages

of the Law, that at that time the Reports of the Law were sufﬁcient; Wherefore

it may seeme both unnecessarie and unproﬁtable to have any more Reports

of the Law: But the same causes that mooved the former, doe require also to

have some more added unto them for two speciall ends and purposes. First,

to explaine and expound those Statutes and Actes of Parliament which either

have bin enacted since those Reports, or where not (no occasion falling out)

in Reports expounded at all. Secondly, to reconcile doubts in former Reports

rising either upon diversity of opinions or questions mooved and left unde-

cided, for that it cannot be, but in so many Books written in so many severall

ages, there must be (as the like in all Sciences and Arts both divine and humane

falleth out) some diversitie of opinions, and many doubts left unresolved: For

which only purposes I have published the former two, and this last part of

my Reports, which I trust will be a meane (for so I intended them) to cause

the studious to peruse and peruse againe with greater diligence, those former

excellent and most fruitfull Reports: And in troth these of mine (if so I may

call them, being the Judgements of others) are but in nature of Commentaries,

37. [Ed.: by the lord king’s writ]

38. [Ed.: claimed, etc. his right;]

39. [Ed.: for his claim and right:]

40. [Ed.: in the county of York,]

41. [Ed.: he claimed against them in the same county, etc. by the lord king’s writ etc.:]

42. [Ed.: before Ranulph de Glanvill, then Sheriff:]

Preface 73

either for the better apprehending of the true construction of certaine generall

Acts of Parliament concerning the whole Realme, in certaine principall points

never expounded before, or for the better understanding of the true sense and

reason of the Judgements and resolutions formerly reported, or for resolution

of such doubts as therein remain undecided. For which purposes in my former

Reports I have reported and published for the explanation & exposition of

the Statute of 23. H. 8. ca. 10. Porters case: Of the broad spreading Statute

of 27. H. 8. cap. 10. of Uses, the cases of Chudleigh, Corbet, Shelley, Albany,

and the Lord Cromwels case: of the Statute of 34. H. 8. cap. 20. of Recoveries,

Wisemans case: Of the Statute of 13. Elizab. cap. 7. of Bankrupts, the case of

Bankrupts: Of the Statute of 34. H. 8. ca. 21. of conﬁrmation of Letters Patents,

Dodingtons case: Of the statute of 31. H. 8. of dissolution of Monasteries:

And of the Statute of 1. Edw. 6. of Chauntries, the Archbishop of Canterburies

case: And of one Branch of the great & generall Statutes of 32. and 34. H. 8.

of Wills, Binghams case. I have reported the Lord Buckhursts case, for the

true understanding and expounding of the auncient and former Booke cases

concerning Charters and Evidences, and to that end the residue of the cases

in those two former parts are published. And seeing the end of these Lawes

is to have Justice duely administred, and Justice distributed is Ius suum cuique

tribuere,

to give to every one his owne; Let all the professors of the Law, give

to these Books that Justice which these Bookes have in them: that is, to give

to every booke and case his owne true understanding: And not by wresting

or racking, or inference of wit to draw them (no not for approving a troth)

from their proper and naturall sense, for that were a point of great injustice:

For troth and falshood are so opposite, as troth itselfe ought not to be prooved

by any glose or application that the true sense will not beare. Out of all these

Bookes and Reports of the Common Law, I have observed, that albeit some-

time by actes of Parliament, and sometime by invention and wit of man, some

points of the auncient Common Law have been altered or diverted from his

due course; yet in revolution of time, the same (as a most skilfull and faithfull

supporter of the common wealth) have bin with great applause for avoyding

of many inconveniences restored againe: As for example, the wisedome of the

Common Law was that all estates of inheritance should be Fee simple, so as

one man might safely alien, demise, and contract, to and with another: But

43. [Ed.: to give to everyone his right,]

Part Three of the Reports74

the Statute of Westminster the second cap. I. created an estate taile, and made

a Perpetuitie by act of Parliament, restraining Tenant in taile from aliening

or demising but onely for the life of Tenant in taile, which in processe of time

brought in such troubles and inconneniences, that after two hundred yeares,

necessitie found out a way by Law for a Tenant in taile to alien. Also by the

auncient Common Lawes, freeholds should not passe from one to another

but by matter of Record, or solemne Liverie of seisin; But against this were

Uses invented, and grew common, and almost universall through the Realme,

in destruction of the auncient Common Law in that point: But in time the

manifold inconveniences hereof being by experience found, the Statute of 27.

Henr. 8. cap. 10. was made for restoring of the auncient Common Law againe,

as it expresly appeareth by the Preamble of that Statute: And hereof an inﬁnite

more of examples might bee added, but hereof this shall sufﬁce: And thus

much of the Bookes and Treatises, and of the Reporters and Reports of the

Lawes of England. Now for the degrees of the Law: as there bee in the Uni-

versities of Cambridge and Oxford divers degrees, as generall Sophisters, Bach-

ellors, Masters, Doctors, of whom bee chosen men for eminent and judiciall

places, both in the Church and Ecclesiasticall Courts: So in the Profession of

the Law, there are Mootmen, (which are those that argue Readers cases in

houses of chauncerie, both in Termes and graund Vacations.) Of Mootemen

after eight yeares Studie or thereabouts, are chosen Utterbaristers; of these are

chosen Readers in Innes of Chauncerie: Of Utterbarristers, after they have

beene of that degree twelve yeares at the least are chosen Benchers, or Aun-

cients, of which one that is of the puisne sort, reades yearely in Summer

vacation, and is called a single Reader; And one of the Auncients that have

formerly read, reades in Lent vacation, and is called a double Reader, and

commonly it is betweene his ﬁrst and second Reading about nine or tenne

yeares, And out of these the King makes choyse of his Attorney, and Sol-

licitor Generall, his Attorney of the Court of Wardes and Liveries, and

Attorney of the Duchy: And of these Readers are Serjeants elected by the

King, and are by the Kings Writ called ad statum & gradum Servientis ad

Legem:

and out of these the King electeth one, two, or three as pleaseth him

to be his Serjeants, which are called the Kings Serjeants; Of Serjeants are by

the King also constituted the honorable and reverend Judges, and Sages of

44. [Ed.: to the estate and degree of a Serjeant at Law.]

Preface 75

the Law. For the young Student which most commonly commeth from one

of the Universities, for his entrance or beginning were ﬁrst instituted and

erected eight houses of Chauncerie, to learne there the Elements of the Law:

that is to say, Cliffordes Inne, Lyons Inne, Clements Inne, Barnards Inne,

Staple Inne, Furnivals Inne, Davis Inne, and New Inne: And each of these

houses consist of fortie or thereabouts. For the Readers, Utterbarristers,

Mootemen, and inferiour Students, are foure famous and renownedColledges,

or Houses of Court, called the Inner Temple, to which the ﬁrst three Houses

of Chauncerie appertaine; Graies Inne, to which the next two belong; Lin-

colnes Inne, which enjoyeth the last two saving one; and the Middle Tem-

ple, which hath onely the last. Each of the Houses of Court consist of Readers

above twentie: Of Utterbaristers above thrice so many: Of yong Gentlemen,

about the number of eight or nine score, who there spend their time in Study

of Law, and in commendable exercises ﬁt for Gentlemen: The Jvdges of the

Law and Serjeants being commonly above the number of twentie, are equally

distinguished into two higher and more eminent Houses, called Serjeants Inne:

All these are not farre distant one from another, and altogether doe make the

most famous Universitie for profession of Law onely, or of any one humane

Science, that is in the world, and advaunceth it selfe above all others, Quantum

inter viburna Cupressus.

In which Houses of Court and Chauncery, the Read-

ings and other exercises of the Lawes therein continually used, are most ex-

cellent and behoovefull for attaining to the knowledge of these Lawes: And

of these things this taste shall sufﬁce, for they would require if they should

be treated of, a treatise of it selfe. Of the antiquitie of these houses, and how

they have beene changed from one place to another, I may say as one said of

auncient Cities: Perpaucae antiquae & civitates Authores Suos norunt.

Now,

what Arts or Sciences are necessary for the knowledge & understanding of

these Lawes, I say, that seeing these Lawes doe limit, bound and determine,

of all other humane lawes, arts, and sciences: I cannot exclude the knowledge

of any of them from the professor of these Lawes; the knowledge of any of

them is necessary and proﬁtable. But forasmuch as if a man should spend his

whole life in the study of these Lawes, yet he might still adde somewhat to

45. [Ed.: as great as a cypress among the brushwood. (from Virgil, Eclogues, i. 25)]

46. [Ed.: our authors have investigated very few ancient cities.]

Part Three of the Reports76

his understanding of them: Therefore the Judges of the law in matters of

difﬁculty, doe use to conferre with the learned in that Art or Science, whose

resolution is requisite to the true deciding of the case in question. Concerning

the language or tongue wherein these Lawes are written, for all judiciallRecords

are entred and enrolled in the Latine tongue: As it appeareth by an Act of

Parliament in Anno 36. cap. 15. and the words of Glanvile, Bracton, and Fleta,

Novae & Narrationes, and the Booke of Entries, and divers of our statutes are

set forth in the Latine tongue. Before the raigne of that famous King Edward

the ﬁrst, as well all Writs originall and judiciall, as all the bookes of the Law,

as Glanvile, Bracton, & c. and all the Statutes yet extant were published in

the Latine tongue; In the raigne of him and his sonne many Statutes are indited

in the Latine: (as some also of the Statutes of Richard the second be.) And

divers also bee enacted in French, for that they had divers territories and

Seigniories that spake French within their dominion, and in respect thereof

the better sort learned that language. But forasmuch as the former Reports

of the Law, and the rest of the Authors of the Law, (the Doctor and Student

who wrote in the English tongue excepted) are written in French; I have

likewise published these in the same language: And the reason that the former

Reports were in the French tongue, was for that they begun in the raigne of

King Edward the third, who as the world knowes had lawfull right in the

Kingdome of France, and had divers Provinces and territories thereof in pro-

session: It was not thought ﬁt nor convenient, to publish either those, or any

of the Statutes enacted in those dayes in the vulgar tongue, lest the unlearned

by bare reading without right understanding might sucke out errors, and trust-

ing to their owne conceit might endamage themselves, and sometimes fall

into destruction. And it is verily thought that William the Conquerour ﬁnding

the excellencie and equitie of the Lawes of England, did transport some of

them into Normandy, and taught the former Lawes written as they say in

Greeke, Latine, British, and Saxon tongues (for the better use of Normans)

in the Normane language, and the which are at this day (though in processe

of time much altered) called the Customes of Normandie: So taught hee En-

glishmen the Norman tearmes of hunting, hawking, and in effect of all other

playes and pastimes, which continue to this day: And yet no man maketh

question but these recreations and disports were used within this Realme before

the Conquerours time. But see the Preface of William de Rouell of Allenson

to his Commentary written in Latine upon the booke called, Le graund Cus-

Preface 77

tumier de Normandie,

entituled in Latine, Descriptio Normanniae,

where

hee sheweth and proveth by other Authors, that most of the Customes of

Normandie were derived out of the Lawes of England, in or before the time

of the said King Edward the Confessor, from whom William Duke of Nor-

mandie did derive the title, by colour whereof he ﬁrst entred into the crowne

of England. If the language or stile doe not please thee, let the excellencie and

importance of the matter delight and satisﬁe thee, and thereby thou shalt

wholly addict thy selfe to the admirable sweetnesse of knowledge and un-

derstanding: In lectione non verba sed veritas est amanda, saepe autem reperitur

simplicitas veridica, & falsitas composita, quae hominem suis erroribus allicit, &

per linguae ornamentum laqueos dulcis aspergit: Et doctrina in multis est, quibus

deest oratio.

Certainely the faire outsides of enameled words and sentences,

doe sometimes so bedazill the eye of the Readers minde with their glittering

shew, as they cause them not to see or not to pierce into the inside of the

matter; And he that busily hunteth after affected words, and followeth the

strong sent of great swelling phrases, is many times (in winding of them in

to shew a little verbal pride) at a dead losse of the matter it selfe, and so Projicit

ampullas & sesquipedalia verba.

To speake effectually, plainely, and shortly,

it becometh the gravitie of this profession: And of these things this little taste

shall sufﬁce.

Your extraordinary allowance of my last Reports, being freshly accompanied

with new desires, have overcome mee to publish these few excellent Judge-

ments and Resolutions of the reverend Judges and sages of the Law, tending

either to the true exposition of certaine generall Acts of Parliament, or to the

true understanding and sense of our bookes, wherein there seemeth some

diversitie of opinion: And albeit they bee few in number, yet many of them

consist of divers severall points, and comprehend in them many other Judge-

ments and Resolutions, which never before were reported. If by these labours

47. [Ed.: The Grand Coutumier (i.e. great book of customs) of Normandy.]

48. [Ed.: Description of Normandy,]

49. [Ed.: “In reading, the truth is to be loved rather than the words; for simplicity is often found to

be truthfulness and falseness combined, which lures men into error, while elaborate language scatters snares;

and in many matters there is learning which cannot be expressed in speech.” (Isidore, de summo bono,

lib. 3, Valer. lib. 3.)]

50. [Ed.: He throws out bombast and inordinately long words.]

Part Three of the Reports78

the Common-wealth shall receive any good, and the Reader reape the beneﬁt

that for his reading and study he desireth, I shall have all the reward that for

my writings and paines I require.

Vale.

Heydon’s Case.

(1584) Easter Term, 26 Elizabeth I

In the Court of Exchequer.

First Published in the Reports, volume 3, page 7a.*

Ed.: This is a construction of leases, life estates, and statutes. Otlery, a

religious college, gave a tenancy in a manor also called “Otlery” to Ware

and his son. The tenancy was established by copyhold, an ancient device

for giving a parcel of a manor to a tenant, usually in return for agricultural

services, which was something like a long-running lease with special privi-

leges for each party. Ware and his son held their copyhold to have for their

lives, subject to the will of the lord and the custom particular to that manor.

The Wares’ copyhold was in a parcel also occupied by some tenants at will.

The college then leased the parcel to Heydon for a period of eighty years

in return for rents equal to the traditional rent for the components of the

parcel. The following year, the college was dissolved and lost its lands and

rents to Henry VIII, although the act of dissolution kept in force grants

made within the previous year for a term of life. The Court of Exchequer

found that the grant to the Wares was within the statute’s protection but

that the lease to Heydon was void. The ruling was based on an important

discussion of the relationship of a statute to the pre-existing Common Law.

By considering the statute as curing a defect in the Common Law, the

remedy of the statute was limited to curing that defect. Judges are supposed

to construe statutes by seeking the true intent of the makers of the Act,

which is presumed to be pro bono publico, or intent for the public good.

[The 1658 and some other editions have the name of the college and manor

as “Ottery.”]

51. [Ed.: Farewell.]

*[Ed.: See the initial pleadings at 20 Eliz. Rot. 140.]

Heydon’s Case 79

In an information upon an intrusion in the Exchequer, against Heydon,

for intruding into certain lands, &c. in the county of Devon: upon the general

issue, the jurors gave a special verdict to this effect:

First, they found that parcel of the lands in the information were ancient

copyholds of the manor of Otlery, whereof the warden and canons regular of

the late college of Otlery were seised in the right of the said college; and that

the warden and canons of the said college, 22 Hen. 7. at a court of the said

manor, granted the same parcel by copy, to Ware the father and Ware the son,

for their lives, at the will of the lord, according to the custom of the said

manor; and that the rest of the land in the information was occupied by S.

and G. at the will of the warden and canons of the said college for the time

being, in the time of Henry the Eighth. And further that the said S. and G.

so possessed, and the said Ware and Ware so seised as aforesaid, the said warden

and canons by their deed indented, dated 12 January anno 30 Hen. 8. did

lease the same to Heydon the defendant for eighty years, rendering certain

rents severally for several parcels; and found that the said several rents in

Heydon’s lease reserved, were the ancient and accustomed rents of the several

parcels of the lands, and found, that after the said lease they did surrender

their college, and all the possessions thereof to King Henry the eighth. And

further found the statute of 31 Hen. 8. and the branch of it, scil. by which it

is enacted, “That if any abbot, &c. or other religious and ecclesiastical house

or | place, within one year next before the ﬁrst day of this present Parliament,

hath made, or hereafter shall make any lease or grant for life, or for term of

years, of any manors, messuages, lands, &c. and in the which any estate or

interest for life, year or years, at the time of the making of such grant or lease,

then had his being or continuance, or hereafter shall have his being or con-

tinuance, and not determined at the making of such lease, &c. Or if the usual

and old rents and farms accustomed to be yielden and reserved by the space

of twenty years next before the ﬁrst day of this present Parliament, is not, or

be not, or hereafter shall not be thereupon reserved or yielded, &c. that all

and every such lease, &c. shall be utterly void.” And further found, that the

particular estates aforesaid were determined, and before the intrusion Heydon’s

lease began; and that Heydon entered, &c. And the great doubt which was

often debated at the Bar and Bench on this verdict, was, If copyhold estate

of Ware and Ware for their lives, at the will of the Lords, according to the

custom of the said manor, should, in judgment of law be called an estate and

interest for lives, within the said general words and meaning of the said Act.

[7 b]

Part Three of the Reports80

And after all the Barons openly argued in Court in the same term, scil. Pasch.

26 Eliz. And it was unanimously resolved by Sir Roger Manwood, ChiefBaron,

and the other Barons of the Exchequer, that the said lease made to Heydon

of the said parcels, whereof Ware and Ware were seised for life by copy of

court-roll, was void; for it was agreed by them, that the said copyhold estate

was an estate for life, within the words and meaning of the said Act. And it

was resolved by them, that for the sure and true interpretation of all statutes

in general (be they penal or beneﬁcial) restrictive or enlarging of the Common

Law, four things are to be discerned and considered.

1. What was the Common Law before the the Act.

2. What was the mischief and defect for which the Common Law did not

provide.

3. What remedy the Parliament hath resolved and appointed to cure the

disease of the commonwealth.

And 4. The true reason and remedy; and then the ofﬁce of all the Judges

is always to make such construction as shall suppress the mischief, and advance

the remedy, and to suppress subtle inventions and evasions for continuance

of the mischief, and pro privato commodo,

and to add force and life to the

cure and remedy, according to the true intent of the makers of the Act, pro

bono publico.

And it was said, that in this case the Common Law was, that

religious and ecclesiastical | persons might have made leases for as many years

as they pleased, the mischief was that when they perceived their houses would

be dissolved, they made long and unreasonable leases: Now the stat of 31 Hen.

8. doth provide the remedy, and principally for such religious and ecclesiastical

houses which should be dissolved after the Act (as the said college in our case

was) that all leases of any land, whereof any estate or interest for life or years

was then in being, should be void; and their reason was, that it was not nec-

essary for them to make a new lease so long as a former had continuance; and

therefore the intent of the Act was to avoid doubling of estates, and to have

but one single estate in being at a time: For doubling of estates implies in

itself deceit, and private respect, to prevent the intention of the Parliament.

And if the copyhold estate for two lives, and the lease for eighty years shall

1. [Ed.: For private beneﬁt,]

2. [Ed.: For the public good. (for the welfare of the whole state and people)]

[8 a]

Heydon’s Case 81

stand together, here will be doubling of estates simul & semel,

which will be

against the true meaning of Parliament.

And in this case it was debated at large, in what cases the general words of

Acts of Parliament shall extend to copyhold or customary estates, and in what

not; and therefore this rule was taken and agreed by the whole Court, That

when an Act of Parliament doth alter the service, tenure, interest of the land,

or other thing, in prejudice of the lord, or of the custom of the manor, or in

prejudice of the tenant, there the general words of such Act of Parliament

shall not extend to copyholds: But when an Act of Parliament is generally

made for the good of the weal public, and no prejudice can accrue by reason

of alteration of any interest, service, tenure, or custom of the manor, there

many times copyhold and customary estates are within the general purview

of such Acts. And upon these grounds the Chief Baron put many cases, where

he held, that the Statute of West. 2. De Donis Conditionalibus did not extend

to copyholds; for if the statute alters the estate of the land, it will be also an

alteration of the tenure, which would be prejudicial to the lord: for of necessity

the donee in tail of land ought to hold of his donor, and do him such services

(without special reservation) as his donor doth to his lord.

2. Littleton saith, lib. 1. cap. 9. That although some tenants by copy of

court-roll have an estate of inheritance, yet they have it but at the will of the

lord, according to the course of the Common Law. For it is said, that if the

lord put them out, they have no other remedy but to sue to their lord by

petition; and so the intent of the Statute de Donis Conditionalibus was not to

extend (in prejudice of lords) to such base estates, which as the law was then

taken, was but at | the will of the lord. And the statute saith, Quod voluntas

donatoris in carta doni sui manifeste express. de caetero observetur:

so that which

shall be entailed, ought to be such an hereditament, which is given, or at least

might be given by deed or charter in tail.

3. For as much as great part of the land within the realm, is in grant by

copy, it will be a thing inconvenient, and occasion great suit and contention,

that copyholds should be entailed, and yet neither ﬁne nor common recovery

3. [Ed.: Together and at one time,]

4. [Ed.: That the will of the donor, manifestly expressed in the charter of his gift, shall be from henceforth

observed:]

[8 b]

Part Three of the Reports82

bar them; so as he who hath such estate cannot (without the assent of the

lord by committing a forfeiture, and taking a new estate) of himself dispose

of it, either for payment of his debts, or advancement of his wife, or his younger

children; wherefore he conceived that the Statute de Donis Conditionalibus

did not extend to copyholds, quod fuit concessum per totam Curiam.

But it

was said that the statute, without special custom, doth not extend to copyholds;

but if the custom of the manor doth warrant such estates, and a remainder

hath been limited over and enjoyed, or plaints in the nature of a formedon

in the descender brought in the court of the manor, and land so entailed by

copy recovered thereby, then the custom co-operating with the statute makes

it an estate-tail; so that neither the statute without the custom, nor the custom

without the statute, can create an estate-tail.

And to this purpose is Littleton, lib. 1. c. 8. for he saith, That if a man

seised of a manor, within which manor there hath been a custom which hath

been used time out of memory, that certain tenants within the same manor

have used to have lands and tenements, to hold to them and their heirs in

fee-simple or fee-tail, or for term of life, &c. at the will of the lord, according

to the custom of the same manor; and a little after, That Formedon in descender

lies of such tenements, which writ, as it was said, was not at the Common

Law.

To which it was answered by the chief Baron, that if the statute (without

custom) shall not extend to copyholds, without question the custom of the

manor cannot make it extend to them: for before the statute, all estates of

inheritance, as Littleton saith, lib. i. cap. 2., were fee-simple, and after the

statute no custom can begin, because the statute being made in 13 Edw. 1. is

made within time of memory; ergo the estate tail cannot be created by custom;

and therefore, Littleton is to be intended (inasmuch as he grounds his opinion

upon the custom, that copyholds may be granted in fee-simple, or fee-tail)

of a fee-simple conditional at the Common Law: for Littleton well knew, that

no custom | could commence after the statute of West. 2., as appears in his

own book, lib. 2. c. 10. and 34 H. 6. 36. And where he saith, that formedon

in descender lies, he also saith, that it lies at the Common Law. And it appears

in our books, that, in special cases, a Formedon in the descender lay at the

5. [Ed.: which was granted by the whole court.]

6. [Ed.: Writ available for one who had a right to lands or tenements from a gift in tail.]

[9 a]

Heydon’s Case 83

Common Law, before the statute of Westm. 2., which see 4 Edw. 2. Formedon

50. 10 Edw. 2. Formedon 55. 21 Edw. 3. 47. Plowd. Com. 246b. &c.

And where it was further objected, That the statute of West. 2. cannot

without custom make an estate tail of copyholds, because without custom,

such estate cannot be granted by copy; for it was said, That estates had been

always granted to one and his heirs by copy, that a grant to one and the heirs

of his body, is another estate not warranted by the custom: So that in such

manors, where such estates of inheritance have been allowed by custom, the

statute doth extend to them, and makes them, which before were fee con-

ditional, now by the statute estates in tail, and that the statute cannot, as hath

been agreed before, alter the custom, or create a new estate not warranted by

the custom.

To that it was answered by the chief Baron, That where the custom of the

manor is to grant lands by copy in feodo simplici

(as the usual pleading is)

without question, by the same custom lands may be granted to one and the

heirs of his body, or upon any other limitation or condition; for these are

estates in fee-simple, et eo potius,

that they are not so large and ample as the

general and absolute fee-simple is, and therefore the generality of the custom

doth include them, but not e converso;

ad quod non fuit responsum.

But it

was agreed by the whole Court, That another Act made at the same Parliament,

cap. 18. which gave the elegit

doth not extend to copyholds, for that would

be prejudicial to the lord, and against the custom of the manor, that a stranger

should have interest in the land held of him by copy, where by the custom

it cannot be transferred to any without a surrender made to him, and by the

lord allowed and admitted. But it was agreed by them, that other statutes

made at the same Parliament, which are beneﬁcial for the copyholder, and

not prejudicial to the lord, may be, by a favourable interpretation, extended

to copyholds, as cap. 3. which gives the wife a cui in vita,

and receipt, and

7. [Ed.: in fee simple.]

8. [Ed.: the rather so,]

9. [Ed.: on the contrary.]

10. [Ed.: which was not answered.]

11. [Ed.: Writ of execution either on a judgment for a debt or damages or on the forfeiture of a re-

cognizance in the king’s court.]

12. [Ed.: Writ of entry for a widow against a person to whom her husband had in his lifetime alienated

his land subject to her inchoate claims.]

Part Three of the Reports84

cap. 4. which gives the particular tenant a quod ei deforceat;

and therewith

agrees 10 Edw. 4. 2b.

And in this case it was also resolved, That although it was not found that

the said rents were the usual rents, accustomed to be reserved within 20 years

before the Parliament; yet inasmuch as they have found, that the accustomable

rent was reserved, and a custom goes at all times before, for this cause it shall

be intended, that it was the accustomable rent within the 20 years, and so it

shall be intended, if the contrary be not shewed of the other side. And judgment

was entered for the Queen.

Fermor’s Case.

(Fermor v. Smith)

(1602) Hilary Term, 44 Elizabeth I

In the Court of Chancery, and before all the justices of England.

First Published in the Reports, volume 3, page 77a.

Ed.: Richard Fermor leased a messuage, or house and its related buildings

and land, to Thomas Smith. The lease was based on a demise, or grant,

for a period of 21 years, in return for rents of £3 yearly. Smith held other

lands from Fermor as a tenant at will, which means the leases in these lands

could be ended any time by Fermor or Smith, for 20s yearly, and he held

a copyhold for more lands from Smith for 40s. Smith also held some lands

not subject to Fermor. Smith granted all of his lands in the area to Chappell

for life, and Smith levied a ﬁne and proclamations, or instituted a pro-

ceeding to cut short other interests rather like a modern proceeding to

declare an interest by adverse possession, which would cut off Fermor’s

interests in Fermor’s lands possessed by Smith. Smith continued paying all

of his rents to Fermor. The ﬁve years for the ﬁne to be completed ran.

Chappell died, which meant the reversion Smith kept when he gave Chap-

pell the life estate gave possession back to Smith. The 21-year lease expired,

and Smith claimed all of the land and barred Fermor from possession.

Fermor sued in Chancery, although Egerton the chancellor referred it to

13. [Ed.: Writ given to the owners of a particular estate (as for life, in dower, by the courtesy, or in fee-

tail) who were barred of the right of possession by a recovery against them through their default or non-

appearance in a possessory action.]

Fermor’s Case 85

the whole bench. The court held that the Parliamentary act that established

the use of ﬁnes had not been intended for use in such a fraudulent manner.

Beneﬁts acquired by fraud cannot bind the people defrauded, particularly

when there is a relationship of trust and conﬁdence between the persons

defrauding and defrauded. To allow any other result would allow “general

mischief to insue.” Fermor won.

This case presents good discussions of statutory interpretation based on

legislative intent, of fraud and fraud in a position of trust (which Coke

seems to have over-emphasized compared to other reporters of the case),

and of public policy arguments based on the effect of the ruling on sub-

sequent litigants.

In a case depending in Chancery, between Richard Fermor, Esq. plaintiff,

and Thomas Smith defendant, on the hearing the cause before Sir Thomas

Egerton, Knight, Lord Keeper of the Great Seal, the case was such; Richard

Fermor, the plaintiff, being seised of the manor of Somerton in fee, by in-

denture 6 Junii 20 Eliz. demised a messuage, parcel of the same manor, to

Thomas Smith, the defendant, for twenty-one years, rendering the yearly rent

of three pounds during the term, by force of which the defendant entered and

was thereof possessed; He was also possessed of divers other parcels of the said

manor at the will of the plaintiff, rendering twenty shillings per annum, and

held divers other parcels of the said manor by copy of court-roll according to

the custom of the said manor, rendering forty shillings rent per annum, all

which lay in Somerton: And the said Thomas Smith was seised in his demesne

as of fee of divers lands, in the same town, which were his proper inheritance.

And afterwards by his deed 15th of October 25 Eliz. demised the said house

and all the said land which he held for years, at will, and by copy, to one

Chappel for his life, Pasch. 35 Eliz. Smith levied a ﬁne with proclamations of

as many messuages and lands, as comprehended as well all the lands which

he held for years, at Will, and by copy, as his own inheritance, by covin

and

practice, to bar the plaintiff of his inheritance; the proclamations and ﬁve years

passed, Smith at all times, before and after the ﬁne, continued in possession,

and paid the said several rents to the plaintiff. Chappel died, the 21 years

1. [Ed.: Covin ordinarily refers to a secret agreement or conspiracy; here it means by stealthy, or deceitful

means.]

Part Three of the Reports86

expired, | and now Smith claimed the inheritance of the land which he held

by lease, at will, and by copy, and would have barred the plaintiff by force of

the said ﬁne with the proclamations, and ﬁve years past. And the Lord Keeper

of the Great Seal thinking and considering of the great mischiefs which might

ensue by such practices, and on the other side considering that ﬁnes with

proclamations are the general assurances of the realm, referred this case (being

a thing of great importance and consequence) to the consideration of the two

Chief Justices Popham and Anderson; and after conference between them,

they thought it necessary that all the justices of England and Barons of the

Exchequer should be assembled for the resolution of this great case. And ac-

cordingly in this same term, all the Judges of England and the Barons of the

Exchequer met at Serjeant’s Inn in Fleet-street, at two several days, where the

case was debated among them. And at length it was resolved, by the two Chief

Justices, Popham and Anderson, and by Gawdy and Walmesly, and all the

other justices of England and Barons of the Exchequer, (except two) that the

plaintiff was not barred by the said ﬁne with proclamations, and that for four

causes:

1. The makers of the Act of 4 Hen. 7. cap. 24. did never intend that such

ﬁne levied by fraud and practice of lessee for years, tenant at will, or tenant

by copy of Court roll, who pretend no title to the inheritance, but intend the

disinherison of their lessors or Lords, should bar them of their inheritance,

and that appears by the preamble of the Act of 4 Hen. 7. where it is said,

“That ﬁnes ought to be of greatest strength to avoid strifes and debates, &

c.” But when lessee for years, or at will, or tenant by copy of Court roll make

a feoffment by assent and covin that ﬁne shall be levied, the same is not to

avoid strife and debate; but by assent and covin to begin strife and debate

where none was; And therefore the Act doth not extend to establish any estate

made by such fraud and practice.

2. It was never the intent of the makers of the Act, that those who could

not levy a ﬁne, shall by making of an estate by wrong and fraud be enabled

by force of the said Act to bar those who had right by levying of a ﬁne: For

if they themselves without such fraudulent estate cannot levy a ﬁne to bar

them which have the freehold and inheritance, certainly the makers of the

Act did not intend that by making of an estate by fraud and practice they

should have power to bar them; and such fraudulent estate is as no estate in

the judgement of Law.

3. As it is said in Dalamer’s Case in Plow. Comm. 352. if any doubt be

[77 b]

Fermor’s Case 87

conceived upon the words or meaning of | an Act of Parliament it is good to

construe the same according to the reason of the Common Law; but the

Common Law doth so abhorre fraud and covin, that all Acts as well Judicial

as others, and which of themselves are just and lawful, yet being mixt with

fraud and deceit, are in judgement of Law wrongful and unlawful: Quod alias

bonum & justum est, si per vim vel fraudem petatur, malum & injustum efﬁcitur:

And therefore if a woman hath title to Dower which is one of the things

favoured in Law, and by covin between her & another causeth a stranger to

disseise the tenant of the land, to the intent that she may bring a Writ of

Dower against him, which is done accordingly, and the woman recover against

him upon a just and good title, yet all the same is void and of no force to

binde the Terre-tenant; a fortiori

in the principal Case when the lessee for

years maketh a feoffment by covin, which amounteth to a wrong and disseisin,

a ﬁne levied by him who is particeps criminis,

and who had not, nor pretended

any right to the land shall not be a barre to the lessor. And that recoveries in

Dower, or any other real Action shall be made a good title against the Tenant

who cometh to the land by wrong and covin are void and of no force appeareth

by 41 Ass. 28. 44 Edw. 3. 25 Ass. 1. 22 Ass. 92. 11 Edw. 4. 15 Edw. 4. 4. 7 Hen.

7. 11. 18 Hen. 8. 5. 12 Eliz. Dyer 295. For although that his right be lawful,

and that he hath pursued his Recovery by judgement in the King’s Court, yet

his covin maketh all that unlawful and wrongful, and yet Recoveries and chieﬂy

upon good title are much favoured in Law: Also the right of inheritance of

feme coverts,

and infants, are much favoured in Law; and yet if a feme covert

or an infant be of covin and consent, that the discontinuee shall be disseised,

and that the disseisor shall enfeoff them, and all this is done accordingly, they

are not remitted, as appears by Littleton, chap. Remitter 151. & 19 Hen. 8.

12b. And there it is held by six justices, that in such case, if the disseisor enters

by covin to the intent to enfeoff the infant, although the infant be not of

covin, &c. yet he shall not be remitted, because he who is in by him who

makes the covin shall be in the same plight as he who did the covinous act.

And it is agreed in 19 Hen. 8. 12. b. that if a man makes a disseisin to the

2. [Ed.: What is otherwise good and just, if it is sought by force and fraud, becomes bad and unjust:]

3. [Ed.: with stronger reason.]

4. [Ed.: a participant in a crime, (an accomplice).]

5. [Ed.: married women.]

[78 a]

Part Three of the Reports88

intent to make a feoffment with warranty, although he makes the feoffment

twenty months after, yet it is a warranty which commences by disseisin.

So if one makes a gift in tail to another, and the uncle of the donor disseises

the donee, and makes a feoffment with warranty, the uncle dies, and the

warranty descends on the donor, and afterwards the donee dies without issue,

the donor brings Formedon

in the reverter, and the tenant pleads the feoffment

with warranty, the demandant shall | avoid it, because it began by disseisin,

and yet the disseisin was not immediately done to the donor, but to the donee;

but by it his reversion was devested; and yet warranties are much favoured in

law. And it appears in 8 Eliz. 249. Dyer, that a vacat

was made of a recovery

in the Common Pleas had by covin. The law hath ordained, that he, who

will be assured of his goods, shall buy them in open Market, and that sale

will bind all strangers, as well as the seller, and yet it is agreed in 33 Hen. 6.

5a, 5b that a sale in Market overt shall not bind him who hath a right to the

goods, if the sale be by fraud, or the vendee hath notice that the property of

the goods was another’s. So the law hath ordained the Court of Common

Pleas as an open Market for assurances of land by ﬁne, so that he who will

be assured of his land not only against the seller, but all strangers, it is good

for him to pass it in this market overt by ﬁne; for, as it is said, ﬁnis ﬁnem

litibus imponit:

and yet covin and deceit in the case at Bar will void it. In 4

Edw. 2. Cui in Vita 22. it is held, That a resignation made by an abbot by

covin should not abate the writ. 34 Edw. 1. Warranty 88. & 19 Edw. 2. Assets

3. & 31 Edw. 1. Voucher 301., a covinous conveyance that assets should not

descend, is nothing worth. And it appears in 17 Edw. 3. 59. and 21 Edw. 3. 3.

46. that an estate made to the King, and by his letters patent granted over,

and all this by covin between him who granted to the King and the patentee,

to make an evasion out of the Statute of Mortmain, shall not bind, but shall

be repealed. And 17 Eliz. Dy. 339. a presentation obtained by collusion is void.

And 17 Eliz. Dy. 339. letters of administration obtained by collusion are void,

and shall not repeal a former administration: see 13 Eliz. Dyer 295. many cases

there put concerning covin.

6. [Ed.: Writ to take possession by virtue of a grant in tail.]

7. [Ed.: cancellation.]

8. [Ed.: a ﬁne puts an end to litigation:]

[78 b]

Fermor’s Case 89

And thereupon it was concluded, That if a recovery in Dower, or other real

action, if a remitter to a feme covert or an infant, if a warranty, if a sale in

market overt, if the King’s Letters Patent, if a presentation, administration,

&c. scil. acts temporal and Ecclesiastical, shall be avoided by covin; by the

same reason a ﬁne in the principal case levied by fraud and covin, as is aforesaid,

shall not bind; for fraus & dolus nemini patrocinari debent.

Note, Reader, in 33 & 34 Eliz. in the King’s Bench between Robert Laune

plaintiff and William Toker defendant in Ejectione ﬁrmae

of lands in Il-

fordcoom in the county of Devon, it was adjudged that where tenant for life

levied a ﬁne with proclamation and ﬁve years pass in his life, that the lessor

should have ﬁve years to make his claim after the death of the lessee. And

although this statute of 4 Hen. 7. hath a saving for the lessor in such case,

yet the saving is of such right “as ﬁrst shall grow, remain, &c.” and the right

ﬁrst accrued to the | lessor after the ﬁne and the forfeiture; but notwithstanding

that, in as much as by the covin of the lessee, he in reversion or remainder

might be barred of his reversion or remainder (for they do not expect to enter

till after the death of the lessee,) and especially when the lessee hath lands of

his own inheritance in the same town (as in the case at Bar he had), there the

lessor shall have 5 years after the death of the lessee.

So it was agreed in the same case, if tenant for life makes a feoffment in

fee to one who hath lands in the same town, and the feoffee levies a ﬁne with

proclamations; it shall not bind the lessor, but he shall have 5 years after the

death of the lessee, for the lessor cannot know of what land the ﬁne is levied,

for he is not party to the indenture or agreement between the conusor and

conusee;

So in the same case, the Judges made a construction against the

letter of the statute in salvation of the estate and inheritance of him in the

reversion. And so it hath been adjudged before in Some’s Case in the Common

Pleas, in Sir James Dyer’s time, as Plowden told me. Also it was said, that if

lessee for years makes a feoffment in fee by practice and covin, that the feoffee

should levy a ﬁne with proclamations to another (the feoffee having other

9. [Ed.: fraud and deceit should defend or excuse no man.]

10. [Ed.: Writ to recover in trespass lands from a prior present-interest holder whose interest has expired.]

11. [Ed.: The conusor, or cognisor, is the person who passes lands through an acknowledgement by

ﬁne to the conusee, who receives them.]

[79 a]

Part Three of the Reports90

lands in the same Town) and all this is done accordingly; and yet the lessee

doth continually pay the rent to the lessor, it shall not bind the lessor, for the

reasons aforesaid.

Lastly, the Judges in this Resolution did greatly respect the general mischief

which would ensue, if such ﬁnes levied by practice and covin of those who

had the particular interests, should bar those who had the inheritance, and

especially in the case at Bar, when after the ﬁne levied, the conusor continually

payed the rent to the lessor, which made the fraud and practice apparent, and

therefore the lessor was secure, and had no cause of any fear or doubt of such

fraud. But it was resolved, that if A. purchases land of B. by feoffment, or

bargain and sale, and enrols it, and afterwards perceiving that B. had but a

defeasible title, and that C. had right to it, B. levies a ﬁne with proclamations

to a stranger, or takes a ﬁne from another with proclamations, to the intent

to bar the right of C., this ﬁne so levied by consent should bind; for nothing

was done in this case which was not lawful, and the intent of the makers of

the Act of 4 Hen. 7. was to avoid strifes and debates, and by the express purview

should bind all strangers who do not pursue their right by action, or entry

within 5 years. So, if one pretending title to land enters, and disseises another,

and afterwards with intent to bind the disseisee, levies a ﬁne with procla-

mations, this ﬁne shall bind the disseisee by the express purview of the Act,

if he neither enters nor | pursues his action within 5 years; and this cannot

be called levying by covin, because the levying of the ﬁne is lawful, and the

disseisee may re-enter, or bring his action within the 5 years.

The fourth reason was, because the lessee had contrived his fraud and deceit

in so secret a manner, that he had deprived the lessor of the remedy which

the statute gave him, that is to say, to make his entry, or bring his action within

the 5 years: For how could he make his entry, or bring his action, when he

knew not of the feoffment which did the wrong? And as to the ﬁne, inasmuch

as the lessee had lands in fee-simple in the same town, every one will presume

that the ﬁne would be levied of that whereof it might be lawfully levied. And

although it contained more acres than his own land, that is usual almost in

all ﬁnes; and peradventure the lessor did not know the just quantity of the

lessee’s proper land, for that doth not appertain to him; and therefore it would

be unreasonable to give him beneﬁt, in this case, of the non-claim of the lessor,

when the wrong and covin of the lessee is the cause of his non-claim. And a

man shall not take advantage of his own wrong or covin. The possession of

[79 b]

Fermor’s Case 91

the lessee is not any mean for the lessor to take any notice of this wrong, for

he comes to the possession of the land by grant or demise lawfully; and after

the feoffment he continues in the possession as a lessee, for he pays his rent

as a lessee ought; immo

the possession of the lessee, and the payment of the

rent, was the cause that the lessor neither knew nor suspected the fraud.

Also it was said, that the fraud and covin in this case made it more odious,

because between the lessor and lessee, and the lord and his copyholder, there

is a trust and conﬁdence, and therefore a lessee for years and a copyholder

shall do fealty, which is a great obligation of trust and conﬁdence; and fraud

and deceit by him who is trusted, is most odious in law. And if the makers

of this Act had been asked, if their intent was, that such a ﬁne so levied by

such practice and covin should bind the lessors, they would have answered,

God forbid that they should intend to patronize any such iniquity practised

and compassed by those in whom there was trust and conﬁdence reposed.

But when a disseisor (although he gains the possession by wrong) levies a ﬁne

with proclamation, yet it shall bind as is aforesaid, for a disseisor venit tanquam

in arena,

and it is not possible but that the disseisee to whom the wrong is

done, and who hath lost his possession, should be conusant of it; and therefore

it will be his own folly, if he makes not his claim; and it is not accompanied

with fraud and practice by one who came to the possession lawfully, by grant

or demise, and who had a trust reposed in him by his lessor or grantor, which

fraud and practice is so secretly contrived, that the | lessor by common pre-

sumption could not have notice to make his claim, because his lessee continued

in possession, and paid his rent, as a lessee ought. And as to that which was

objected, That it would be mischievous to avoid ﬁnes on such bare averments;

It was answered, That it would be a greater mischief, and principally in these

days (in which the Poet saith,

——— Fugere pudor, rectumque, ﬁdesque,

In quorum subiere locum fraudesque, dolique,

Insidiaeque, & vis, & amor sceleratus habendi.)

12. [Ed.: more speciﬁcally.]

13. [Ed.: comes, as it were, into the arena (i.e. into the conﬂict).]

14. [Ed.: Modesty, right and faith were ﬂed away, and in their place came frauds, deceits and snares,

and violence, and wicked love of possessions. (quoting Ovid, Metamorphoses, 1. 129.)]

[80 a]

Part Three of the Reports92

if ﬁnes levied by such covin and practice should bind, And such Objection

may be made, if a ﬁne be levied to secret uses to deceive a purchaser, an

averment of fraud may be taken against it, by the stat. of 27 Eliz. cap. 4. So

if a ﬁne be levied on an usurious contract, it may be avoided by averment,

by the statute of 13 Eliz. cap. 8. And Sir Thomas Egerton Lord Keeper of the

Great Seal, commended this resolution of the justices, and agreed in opinion

with them.

Part Four of the Reports

The Fourth Part of Coke’s Reports was published in 1602. It was originally

published in Law French and entitled Le quart part des reportes del Edward

Coke chivalier, l’attorney general le roy: de divers resolutions & judgements dones

sur solemnes arguments, & avec graund deliberation & conference des tresreverend

judges & sages de la ley de cases difﬁcult, en queux sont graund diversities des

opinions, et queux ne fueront unques resolves, ou adjudges, & reporte par devant,

et les raisons & causes des dits resolutions & judgements: publies en le primier an

(le printemps de tout heureusite) de tresheureux regiment de treshault et tresillustre

Jaques roy Dengleterre, Fraunce, & Ireland, & de Escoce le 37., le fountaine de

tout pietie & justice, & la vie de la ley. In English, The Fourth Part of the Reports

of Sir Edward Coke, Knight, the King’s Majesty’s Attorney-General, of divers

Resolutions and Judgments given upon solemn Arguments, and with great De-

liberation and Conference of the most reverend Judges and Sages of the Law, of

Cases difﬁcult, in which are great diversities of opinions, and which were never

Resolved or Adjudged, or Reported before: and the Reasons and Causes of the said

Resolutions and Judgements. Published in the ﬁrst yeare (the springtime of all

happiness) of the most happie and prosperous Raigne of the Most High and Most

Illustrious James, king of England, France, and Ireland, and of Scotland the 37.

the Fountaine of all piety and Justice and the Life of the Law.

The cases in this part present issues that range further aﬁeld from property

law than do the ﬁrst three volumes. Although there are cases on the rights of

husbands and wives over property, and on debt collection and many on co-

pyholds (which are akin to modern leases), this part moves into the domains

now known as tort law, contract law, criminal law, and civil and appellate

procedure.

Part Four of the Reports94

Epigrams from the title page:

Abominabiles Regi qui agunt impie, quoniam Justicia ﬁrmat solium.

Proverb. 16. 12.

Voluntas Regis labia justa, qui recta loquitur diligetur.

Proverb. 16. 13.

Custodia innocentiam, & vide aequitatem, quoniam sunt reliquiae homini paciﬁco.

Psal. 37. 37.

(Preface)

To the Reader.

There is nothing that can bee said or written of Lawes, although the ﬁeld bee

large, and the common place thereof may seeme to be inﬁnite, but in mine

opinion may bee reduced to one of these sixe heades; Making, Correcting,

Digesting, Expounding, Learning, and Observing. Of Lawes, concerning Mak-

ing of new, sixe things amongst many other doe principally fall into consid-

eration. First, under what forme of Common wealth the Lawmakers be gov-

erned; For one consideration is requisite where the government is

Monarchicall, another when it is Artistocraticall, and a third where it is Dem-

ocraticall. Secondly, to know the several kinds of the Muncicipall Lawes of

his owne proper Nation: For the innovation or chaunge of some Laws is most

dangerous, and lesse perill in the alteration of others. Thirdly, to understand

what the true sence and sentence of the Lawes then standing is and how farre

forth former Lawes have made provision in the case that falleth into question.

Fourthly, by experience to apprehend what have beene the causes of the danger

or hinderance that hath fallen out in that particular to the Common wealth,

either in respect of time, place, persons or otherwise. Fifthly, to foresee that

a proportionall remedy be applied so, as that for curing of some defects past,

there bee not a stirring of more dangerous effects in future. Sixtly, the mean,

1. [Ed.: It is an abomination to the King to commit wickedness, for the throne is established by righ-

teousness.]

2. [Ed.: Righteous lips are the King’s desire, for they love him who speak righteously.]

3. [Ed.: Mark innocence and behold equity, for they are left to a peaceful man.]

Preface 95

& that only is by authority of the high (that in troth is the highest) Court of

Parliament. Concerning the Correction of olde, the same respectes are to be

observed, that have been said touching the Making of new. For Digesting of

former Laws into Methode and order, three things are requisite: Judgement

to know them, Art to dispose them, and Diligence to omit none of them.

The Expounding of Lawes doth ordinarily belong to the reverend Judges, and

Sages of the realme: And in cases of greatest difﬁculty and importance to the

high court of parliament: Concerning Learning & attaining to the knowledge

of these Lawes, I have in the Preface of my ﬁrst Edition somewhat touched.

The observing of Lawes doth concerne all whatsoever; but principally some

in particuler, as hereafter shalbe touched, For Summa sequar fastigia rerum.

Our kingdome is a Monarchie Sucessive

by inherent birth-right, of all others

the most absolute and perfect forme of government, excluding Interregnum,

and with it inﬁnite inconveniences; The Maxime of the Common Law being,

That the king of England never dyeth, which is true in respect of the ever

during, and never dying politique capacity. The Lawes of England consist of

three parts, The Common Law, Customes, & acts of parliament: For any

fundamental point of the ancient Common Lawes and customes of the realme,

it is a Maxime in policie, and a triall by experience, that the alteration of any

of them is most dangerous; for that which hath beene reﬁned and perfected

by all the wisest men in former succession of ages and proved and approved

by continuall experience to be good & proﬁtable for the common wealth,

cannot without great hazard and danger be altered or chaunged. Inﬁnite were

the scruples, suites, and inconveniences that the Statute of 13. Edw. 1. de Donis

conditionalibus

did introduce, which intended to give every man power to

create a new found estate in taile, & to establish a perpetuitie of his landes,

so as the same should not be aliened nor letten, but only during the life of

tenant in taile, against a fundamentall rule of the Common Law; That all

estates of inheritance were fee simple, wherupon these inconveniencies insued,

purchases defeated, leases evicted, other estates and graunts made upon just

and good consideration were avoided, creditors defrauded of the just & due

1. [Ed.: I will cover the chief points (Vergil, Aeneid 1.342).]

2. [Ed.: Successive Monarchy.]

3. [Ed.: An interval between reigns.]

4. [Ed.: concerning conditional gifts.]

Part Four of the Reports96

debts, Offendors imboldned to commit capital offences, and many other in-

conveniences followed: Also, what suits and troubles arose by the Statute of

cap. 34. Edw. 3. of Nonclaime,

enacted against a main point of the Common

Law, whereby insued the universall trouble of the Kings subjects, as it was

resolved in Parliament in 4.Hen. 7. cap.24. is apparant to all of least under-

standing: What intricate and subtile questions in lawe dayly arose upon the

validity and construction of willes of lands, which by the rule of law were not

devisable before the statuts of 32. and 34.Hen. 8. of Wils, dayly experience to

the ruine of many, and hinderance of multitudes manifestly teacheth. But

above all, certaine late inventions and devises in assurances of lands by lim-

itation of uses, under upstart and wild provisoes and limitations, such as the

Common Law never knew, doe breed and multiplie inﬁnite troubles, ques-

tions, suits, and difﬁculties: In the Parliament holden in the 20. yeare of King

Henry the third, it was mooved that Children borne before mariage (being

Bastards by the Common Lawes of this Realme, the wisedome of the Law

abhorring clandestine contracts) might be legitimate according to the Civill

or Ecclesiasticall lawes, whereunto saith the Statut, Omnes Comites & Barones

una voce responderunt, Nolumus leges Anglia mutare quae hucusque usitatae

sunt & approbatae:

In which few words is observable; First, the absolute

monaccord and unity, una voce, of all the Peeres and Lords of Parliament:

Secondly the deniall, Nolumus leges Anglie,

not of Normandy, or of any other

Nation, as is fondly dreamed, as elsewhere I have shewed, but the common

Law of England: And thirdly, the reason of their deniall: Quaehactenus usitate

sunt & approbate,

as if they should have said, we will not change the Lawes

of England, for that they have been anciently used and approved from time

to time by men of most singular wisdome, understanding, and experience. I

will not recite the sharpe Law of the Locrenses

in magna Graecia, concerning

those that sought innovation in preferring any new Law to be made, you may

read it in the glosse of the ﬁrst booke of Justinians Institutes, because it is too

sharpe & tart for this age: But take we the reason of that Law, Quia leges ﬁgendi

5. [Ed.: An early statute of limitations.]

6. [Ed.: All the Earls and Barons answered with one voice, ‘We will not change the old laws of England

heretofore used and approved’.]

7. [Ed.: We will not [change] the laws of England.]

8. [Ed.: [The laws have been] heretofore used and approved,]

9. [Ed.: Locrians. . .ancient (great) Greece,]

Preface 97

& reﬁgendi consuetudo est perniciosa.

But Platoes Law I will recite touching

this matter, which you may read in his sixt booke de Legibus; If any Citizen

doe invent any new thing, which never before was read or heard of, the Inventor

thereof, shall ﬁrst practise the same for the space of tenne yeeres in his owne

house, before it be brought into the Common wealth, or published to the

people, to the end that if the invention be good, it shall be proﬁtable to the

Inventor, and if it were nought, he himselfe and not the Common wealth

might taste of the prejudice. And I like well the Edict reported by Suetonius;

Quae praeter consuetudinem & morem maiorum ﬁunt, neque placent, nec recta

videntur,

And I would the commandement of Honorius and Arcadius were

of us Englishmen observed, Mos ﬁdelissimae vetustatis retinendus est:

And I

agree and conclud this point with the Apotheg[m] of Pereander of Corinth,

That old Lawes and new meats are ﬁttest for us. As concerning the correcting

of the Common Lawes or antient Customes of England, may be applyed all

that hath been said concerning making of Lawes: only this adde; That it hath

bin an old rule in Policy and Law, that Correctio Legum est euitanda.

And

yet concerning certaine of our penall statutes, to repeale many that time hath

antiquated as unproﬁtable, and remaine but as snares to intangle the subjects

withall; And to omit all those that be repealed, that none by them be deceived,

as for example concerning Drapery, or such like. To make one plaine and

perspicious law divided into articles, so as every subject may know what actes

be in force, what repealed, either by particuler or general words, in part or in

the whole, or what branches and parts abridged what inlarged, what ex-

pounded: so as each man may clearly know what and how much is of them

in force, and how to obey them, it were a necessary worke, and worthy of

singular commendation: which his Majesty out of his great wisedome and

care to the Common wealth, hath commanded to be done: for as they now

stand, it will require great paines in reading over all, great attention in ob-

serving, and greater judgement in discerning upon consideration of the whole,

what the Law is in any one particular point: But with this Caution that there

be certaine Statutes concerning the administration of justice, that are in effect

10. [Ed.: A custom of enacting and abrogating laws is pernicious.]

11. [Ed.: Unless things are done according to custom, and the usage of the majority, they will neither

be approved nor seem to be right,]

12. [Ed.: A custom of trustworthy antiquity ought to be kept:]

13. [Ed.: The amendment of Laws is to be avoided.]

Part Four of the Reports98

so woven into the Common Law, and so well approved by experience, as it

will be no smal danger to alter or change them: And herein according to his

Royall commandement (God willing) somewhat in due time shall be per-

formed. For bringing of the Common Lawes into a better Methode, I doubt

much of the fruit of that labour. This I know, that abridgements in many

professions have greatly proﬁted the Authors themselves; but as they are used

have brought no small prejudice to others: For the advised and orderly reading

over of the bookes at large in such maner as elswhere I have pointed at, I

absolutely determine to be the right way to enduring and perfect knowledge,

and to use abridgements as tables, and to trust only to the bookes at large:

For I hold him not discreet that will Sectari rivulos,

when he may petere

fontes.

And certain it is that the tumultuary reading of abridgements, doth

cause a confused judgement, and a broken & troubled kind of delivery or

utterance: But to reduce the said penall Laws into such methode & order &

with such caution as is abovesaid (which cannot be done but in the high court

of parliament, nor without the advise of such as before is touched) were an

honorable, proﬁtable and commendable worke for the whole common wealth.

This fourth part of my Reports doth concerne the true sence & exposition

of the lawes in divers & many Cases, never adjudged or resolved before: which

for that they may in mine opinion tende to the generall quiet & beneﬁt of

many, The onely end (God knoweth) of the edition of them, I thought it a

part of my great duty that I owe to the common wealth not to keepe them

private, but being withall both incouraged, and in maner thereunto inforced,

to publish and communicate them to all, wherein my comfort and conten-

tation is great, both in respect of your singular and favorable approbation of

may former labours, as for that I (knowing mine own weakenes) have one

great advantage of many famous and excellent men that have taken upon them

the great and painfull labour of writing: For they to give their workes the

more authority and credite, have much used the ﬁgure Prosopopeia in faining

divers Princes, and others of high authority, excellent wisedom, profound

learning, & long experience, to speake such sentences, rules & conclusions,

as they intended and desired for the common good, to have obayed and ob-

served; As Zenophon the great in his Booke which he wrote of the Institution

of Princes, faineth that king Cambyses taught and spake many excellent things

14. [Ed.: Follow the streams,]

15. [Ed.: Seek out the sources.]

Preface 99

to Cyrus his sonne; And in another Booke which he wrote of the Art of Chiv-

alry, he saineth how king Philip taught and instructed his sonne Alex[an]der

to ﬁght. But I without ﬁgure, or fayning, do report and publish the very true

resolutions, sentences, and judgements of the reverend Judges and Sages of

the lawes themselves, who for their authoritie, wisedome, learning, and ex-

perience, are to be honoured, reverenced, and beleeved. The due observation

of the said Lawes doth generally without any limitation or exception concerne

all: But principally Princes, Nobles, Judges, and Magistrats, to whose custody

& charge the due execution (the life and the soule of the Laws) is committed;

for that they in respect of their places are more eminent & conspicuous then

other men, wherein 3 things are necessarily required, Understanding, Author-

itie, and Will: Understanding concerneth things and persons; That is, ﬁrst what

is right, and just to be done, & what ill, and to be avoyded; Secondly, what

persons for merit are to be rewarded, And what for offences to be punished:

And both in reward and punishment to observe quantity and qualitie. Au-

thoritie to protect the good, and to chastice the ill. Will prompt and readie

duely, sincerely, and truely to execute the law. But forasmuch as many Ad-

versaries and two open Enemies do continually lie in wait to assault this good

and ready will, it must of necessity have two defensive compleat armors of

proofe: ﬁrst Integrity against these sixe secret adversaries, Gyftes, Affections,

Intreatie, Anger, Praecipitation, and Morosa cunctatio, peevish delay. Secondly,

Fortitude and Constancie against the terror of Malice, & feare of danger, two

open and violent enemies: VideteJudices quid faciatis, non enim hominis exercetis

judicium sed Domini, & quodcunq; judicaveritis in vos redundabit.

And Deus

est Judex justus, fortis, & patiens,

and so must every Judge bee.

Justus,without

respect to give every man his owne: And therefore Judicia are so called, because

they are tanqua˜ Juris dicta

And the law whereby you Judge est mens quadam

nullo perturbata affectu,

Arist. lib. 3Њ. polit. Fortis against malice and daunger,

Neq; timida probitas, neque improba fortitudo reipublicaeest vtilis.

AndPatiens,

when he doth Justice sincerely & with a good conscience, and yet is despised,

16. [Ed.: Judges, take heed what you do, for you do not exercise the judgment of man but of God,

and whatever you adjudge will redound upon you.]

17. [Ed.: God is a just judge, strong and patient.]

18. 1. Paralip. 19. vers. 6.

19. [Ed.: like statements of the law.]

20. [Ed.: it is for me not to confuse those who are affected (Coke’s citation is doubtful).]

21. [Ed.: neither provident timidity nor improvident fortitude is useful to the state.]

Part Four of the Reports100

despited, or disgraced: Non solum poena, sed patientia acquiret nomen perse-

cutionis, & gloriam victoriae

Aristotle lib. 2. Top: Melius est iudicare secundu˜

leges & literas, quam ex propria scientia & sententia. Ignorantia Judicis est pler-

unque calamitas innocentis.

And hereof it proceedeth that the kings of this

realme have had such speciall care of calling such men to judiciall places, as

have knowledge, and other the incidents inseperable above mentioned. And

because these Judges are (if order be observed) taken of such as be Sergeants,

especially care is alwaies taken in calling men of Learning, integrity, and living

to that state and degree; Never can a Judge punish extortion, that is corrupted

himselfe, nor any Magistrate punish any sinne as hee ought, that is known

to be an offendor therein himselfe; Therefore it is an incident inseperable to

good government, that the Magistrates to whom the execution of Laws is

committed be princpall observers of the same themselves. But herein heare

what shalbe said, to the which nothing can be added; Et nunc reges intelligite,

erudimini qui iudicatis terram. Seruite Domino in timore, et exultate ei cum

tremore, apprehendite disciplinam, ne quando irascatur Dominus, et pereatis de

via iusta.

Whosoever wil be compleat Judges, Intelligite; apprehendite, eru-

dimini, seruite, exultate

you must be apparelled with the rich roabes of un-

derstanding & learning, you must your selves imbrace discipline, you must

observe the lawes your selves, with great feare an humility, which if you will

do, Seruite Domino in timore;

you must be cheerful, & comfort your selves

in doing of Justice, for you shall ﬁnde many crosses and daungers. Et exultate,

but yet cum tremore,

doe all these thinges least ye enter into wrath, and so

ye perish from the way of righteousnesse; whereby it appeareth, that the great-

est losse a Judge or Magistrate can have, is to give himselfe over to passion

and his owne corrupt wil, and to loose the way of righteousnes, Et pereatis

via de justa.

To the whole bodie of the realme concerning this point I say,

22. [Ed.: Not only pain but suffering acquires the name of persecution and the glory of victory.]

23. [Ed.: It is better to judge according to the letter of the law than according to one’s own knowledge

and feeling. Ignorance in a judge is a great mischief to the innocent.]

24. [Ed.: Be wise now therefore, you Kings: be instructed, you judges of the earth. Serve the Lord with

fear, and rejoice with trembling. Learn discipline so that the Lord is never angry, and you lose the way of

righteousness (Psalms 2:10–12).]

25. [Ed.: Understand, learn, be instructed, serve and rejoice.]

26. [Ed.: Serve the Lord in fear,]

27. [Ed.: And rejoice,]

28. [Ed.: with trembling,]

29. [Ed.: And you lose the way of righteousness.]

Preface 101

your fault will be the greater, If having a soveraigne so religious, wise, and

learned, so great an observer of Laws, so vertuos of his own person, you apply

not your selves to his example & presidet; for the heathen Poet could say;

Regis ad exemplum totus componitur Orbis.

But whilest I was intending and

going about this Edition, I by commandment attended upon his most excellent

Matie for direction about his highnesse affaires that concerned the duty of

my place to prosecute; At what time I well perceived what princely care his

Matie had taken for execution and expedition of Justice, and that upon con-

sideration thereof hee found two impediments therein: One, that in the two

eminent courts of ordinary Justice, the Kings Bench, and the Common pleas,

there were foure Judges, and many times in cases of great difﬁcultie the Judges

being equally diuided in opinion in either Court, the matter depending long

undecided: For preventing whereof his Majestie in this Terme of Saint Hillarie,

in the ﬁrst yeere of his most happy and prosperous raigne, added a Judge more

to either Bench, Sir David Williams Knight, Sergeant at Law, to the King

Bench; & Sir William Daniell Knight, Sergeant at Law, to the Court of Com-

mon pleas, his Majesty saying, that Numero Deus impare gaudet.

The second

impediment was, that divers doubts and questions of law remained undeter-

mined, the same rising partly upon long and ill penned Statuts lately made,

partly by reason of late and new devises and inventions in assurances, which

the eye of the Law in former ages never beheld, and cannot yet incline to

allow them, and partly by conveyances and willes drawne and devised by such

as have Scientiam sciolorum quae est mixta Ignorantia:

which questions and

doubts already growne, his Majesty desired might bee resolved and determined

according to the true sence of the Lawes of the Realme. And where there have

beene som diversity of opinions betweene certain of the Courts of justice, that

the same might upon conference & mature consideration be agreed and re-

solved. And his Majesty understanding (as it seemes) by reason of my former

Editions, that I have observed many determinations and judgements of ques-

tionable and doubtfull Cases, which upon great study, consideration, con-

ference, and deliberation, have bin resolved and given by the reverend Judges

& Fathers of the Law, required me to proceed, and for the generall good and

quiet of the subject to publish them, whose commandement being to me

30. [Ed.: The whole world was created according to the King’s example.]

31. [Ed.: God rejoices in an uneven number. (Vergil, Eclogues 8.75)]

32. [Ed.: The knowledge of smatterers, which is mixed with ignorance:]

Part Four of the Reports102

Suprema Lex, hath both incouraged & imposed a necessity upon me to publish

this fourth Edition: Whith conteyneth nothing but his Majesties owne, being

sweet and fruitfull ﬂowers of his Crowne; for the laws of England are indeed

so called, Jura Coronae, or Jura Regia: Because as Bracton lib. I. cap.8. saith:

Ipse autem Rex, non debet esse sub homine, sed sub Deo & Lege, quia Lex facit

Regem: attribuat igitur Rex legi, quod Lex attribuit ei, videlicet dominationem

& imperium: Non est enim Rex ubi dominatur voluntas, & non Lex:

that is,

The King is under no man, but onely God and the Law, for the Law makes

the King: Therefore let the king attribute that to the Law, which from the

law he hath received, to wit, power and dominion: for where will, and not

law doth sway there is no King. And in the Register the wordes of the writ of

Ad Jura Regia, be, Rex &c. Salutem: Ad jura nostra Regia ne depereant, seu per

aliquorum vsurpationes indebitas aliqualiter subtra-hantur, quatenus juste po-

terimus, manutenenda, subtractaque & occupata, si quae fuerint ad statum de-

bitum revocanda, necnon ad impugnatores eorundem jurium nostrorum refraen-

andos, & prout convenit iuxta eorum demerita puniendos, eo studiosius nos decet

operam adhibere, & solicitius extendere manum nostram, quo ad hoc vinculo

Juramenti teneri dignoscimur & astringi, pluresque conspicimus indies jura illa

pro viribus impugnare &c.,

1. “That our Kingly Lawes and rights perish not,

neither be at all withdrawn by undue usurpation of any, which so far forth

as Justly we may, are to be mainteyned, & if any shall be with drawne or

diverted, to be againe restored to their due state; as also for the bridling of

the impugnors of those our said Lawes, & the punishing of them as is meet

according to their deserts, we ought the more diligently to provid, & the more

carefully to extend our hand & authority; for that we are knowne to be thereto

tyed & bound by the bond of an Oath, and for that we daily see very many

to their powers to impugne those said Lawes.” And againe, Rex & c. salutem.

Ad conseruationem jurium Coronae nostrae, eo nos decet studiosius operam ad-

hibere, quoad hoc astringimur vinculo Sacramenti, & alios conspicimus ad ips-

orum jurium eneruationem amplius anhelare &c. concluding thus, Et sciatis

quod si secus facere presumpseritis, ad vos tanquam violatores Regii juris nostri

33. [Ed.: For the King himself ought to be under no man, but under God and the Law, for it is the

Law that makes him King: therefore let the King attribute to the law what the Law attributes to him,

namely lordship and power; for where arbitrary whim rules, and not Law, there is no king.]

34. [Ed.: Writ, which was used by a King’s clerk to protect a living, or beneﬁce, for someone who

contested the King’s title, is translated in the text following this note.]

Preface 103

non immerito grauiter capiemus,

which is, “We ought the more earnestly to

provid for the conservation of the Lawes & rights of our Crown, as being

thereunto tyed by the bond of an Oath; & for that we see others the more

greedily to gape after the weakning & subverting of those said Lawes &c.

concluding thus; And know ye that if ye shall presume otherwise to do wee

shall with griefe not undeservedly hold you as violators of our Kingly rights

& Laws.” By which ancient writs appeareth: 1. What an exorbitant offence it

hath bin ever deemed to impugne or calumniate these Lawes, being the im-

periall Lawes of the Crowne. 2. That in all ages, these Lawes have had many

that sought to impugne and violate them: And lastly how grieuously such as

so presumed to offend should be punished; Nam & frustra feruntur Leges nisi

severe puniantur contemptores;

And it is truely said, that Non debet Princeps

ferre Legum suarum ludibrium:

And wofull experience hath often taught,

(which I my selfe have sometimes observed) that many of those men that have

strayned their wits, & streched their tongues to scandalize or calumniate these

Lawes, had either practised or plotted some hainous crime, and thereforehated,

because they feared the just sentence and heavie stroke. The reading of the

severall Reports & records of these Lawes, doth not only yeeld immence proﬁt,

as elswhere I have noted; but doth conteine the faithfull and true Histories

of all successive times, as well concerning the punishment of the evill for their

heinous, horrible, and exorbitant offences, as concerning the reward and ad-

vancement of men of great merit and vertue for their high and honorable

service in the common wealth: And (which is above all) they are memorials

to all posterity of the valorous piety, vertues, and victories of the Kings and

Princes of this Realme. The ﬁrst appeareth most evidently amongst other

thinges by the creations and erections of men of great desert to eminent places,

and degrees of nobility and honour, of such estates, and in such maner and

forme, as are warranted by the Lawes of the Realme: The second by the Records

of the Attainders in Judiciall proceedings against Capitall and other offen-

dours. And the third by many excellent Records, the most faithfull and per-

petuall witnesses, and worthy to be published, and made knowne to all; And

therefore at this time least my Preface should exceed his proper module of

35. [Ed.: This writ is translated in the text following.]

36. [Ed.: For the Laws will be rendered useless unless those who disobey them are severely punished;]

37. [Ed.: The prince ought not to make a mockery of his Laws:]

Part Four of the Reports104

that sort; Take one example of a Charter made by Edgar King of England,

and Recorded, and thereby faithfully continued to this day. “Altitonantis Dei

largiﬂua clementia, qui est Rex Regum, & Dominus Dominantium: Ego Edgarus

Anglorum Basileus, omniumque rerum, Insularum Occani quae Britaniam cir-

cumiacent, cunctarumque Nationum quae infra eam includuntur Imperator &

Dominus: Gratias ago ipsi Deo omnipotenti Regi meo, qui meum imperium sic

ampliauit & exaltauit super Regnum patrum meorom. Qui licet Monarchiam

totius Angliae adepti sunt a tempore Athelstani, qui primus Regum Anglorum

omnes Nationes quae Britaniam incolunt sibi armis subegit, nullus tamen eorum

ultra ﬁnes Imperium suum dilatare aggressus est, mihi tamen concessit propitia

dininitas cum Anglorum imperio, omnia regna Insularum Oceani cum suis fer-

ocissimis Regibus vsque Norvegiam, maximamque partem Hiberniae, cum sua

nobilissima Ciuitate de Dublina, Anglorum regno subiugare; quos etiam omnes

meis imperiis colla subdare Dei favente gratia coegi. Quapropter & ego Christi

gloriam & laudem in regno meo exaltare, & eius seruitium ampliﬁcare deuotus

disposui: Et per meos ﬁdeles fautores Dunstanum videlicet Archiepiscopum, Ay-

elyolanum, ac Oswaldum Archiepiscopos, quos mihi patres spirituales & consi-

latores elegi, magna ex parte disposui &c. Facta sunt haec anno Domini 964.

Indictione 8. Regni vero Edgari Anglorum Regis 6. in regia vrbe quae ab incolis

Ocleayeccastriae nominatur, in natale Domini festiuitate, sanctorum Innocentium

feria 4. &c.



Ego Edgar Basileus Anglorum & Imperator Regum gentium, cum

consensu & Principum & Archimeorum meorum hanc meam muniﬁcentiam signo

crucis corroboro.



Ego Alfriie Reginacon sensi & signo crucis conﬁrmaui.



Ego

Dunstan. Archiepiscopus Dorobor. Ecclesiae Christi consensi & subscripsi.



Ego

Osticel. Archiepiscopus Eboracensis Ecclesia consensi & subscripsi.



Ego Alferic.

Dux. Ego Bruthnod. Dux. Ego Aridgari Dux.



” Whereby is to be observed,

ﬁrst his piety and devotion towards God the fountaine of all happinesse, the

38. [Ed.: By the great clemency of Almighty God, who is king of kings, and lord of lords, I, Edgar,

king of the English and of everything, emperor and lord of all the islands of the ocean which surround

Britain, and of whatever nations they enclose, give thanks to the almighty God himself, my king, who has

so ampliﬁed and exalted my power over the realm of my fathers etc., who, although they had obtained

the monarchy of the whole of England from the time of Æthelstan, the ﬁrst of the kings of England to

subdue with arms all the nations which constitute Britain, though none of them had taken the further

step of extending their empire beyond the bounds, and has granted me by his divine favour, to subjugate

with English power all the kingdoms of the islands of the ocean, with their ﬁercest kings, as far as Norway

and the greater part of Ireland (with its most noble city of Dublin) to the English kingdom, all of which

I have with the grace of God brought together with my power; and on account of this, I have arranged

to exalt the glory and praise of Christ in my realm, and to amplify his service of devotion, and by my

The Lord Cromwell’s Case 105

true Summum bonum.

Secondly, the largenesse of his Empery, and the ﬁrst

Conquest of Ireland, long before the Raigne of King Henry the second. To

conclud, of the learned Reader my desire is, that he would eithar amend that

which herein he shall ﬁnde amisse, or at least that he will not ﬁnde fault with

any part, untill he hath seriously read over the whole, and then it may be he

will reprehend the lesse: And although herein I have taken all the labour; yet

I unfainedly wish to all the Readers, all, or at the least equall proﬁt.

Plura quidem feci, quam quae comprendere dictis

In promptu mihi sit; Rerum tamen ordine ducar.

Interea Lector valeas, & memineris quod quicunque genuinum

Sensum ac vim alicuius legis commento aut techna illuserit,

legis violator habendus est.

Bene` Vale.

The Lord Cromwell’s Case.*

(1581) Trinity Term, 23 Elizabeth I

In the Court of King’s Bench.

First Published in the Reports, volume 4, page 12b.**

Ed.: A case of slander. Lord Cromwell brought some renegade preachers

into Northlingham, to preach against the new Book of Common Prayer,

faithful supporters, namely Archbishop Dunstan, Archbishops ‘Ayelyolanus’ and Oswald, whom I have

chosen as my spiritual fathers and advisers, I have made great arrangements etc.[...]These things were

done in the year of the Lord 964, in the eighth year of the indiction, and in the sixth year of the reign of

Edgar, king of the English, in the royal town which is called [Gloucester], in the festival period of Christmas,

in the feast of the Holy Innocents etc. I, Edgar, king of the English and emperor of the kingdoms of the

world, with the consent of my rulers and great men, have conﬁrmed this my muniﬁcence with the sign

of the cross. I, Queen Ælfrith, have consented and conﬁrmed with the sign of the cross. I, Dunstan,

archbishop of Christ’s church of Dover, have consented and subscribed. I, Oscytel, archbishop of York,

have consented and subscribed. I, Duke Ælfere. I, Duke Brihtnoth. I, Duke Ordgar.]

39. [Ed.: Highest good.]

40. [Ed.: I have done more things than I can catch in words at the present; Nevertheless, I have set

things in order.]

41. [Ed.: Meanwhile, farewell Reader; and remember that whoever mocks the genuine sense and force

of any law, by scheming or craftiness, is to be considered a violator of the law.]

42. [Ed.: Farewell.]

*[Ed.: The 1604, 1658, and some other, editions spell this name “Cromwel” in the caption. Both spellings

were common, even for this one man, and “Cromwell” is the better known.]

**[Ed.: See the original pleadings, at 20 Eliz. Rot. 28.]

Part Four of the Reports106

which had been required by the Queen to be used in all churches. Edmund

Denny, the vicar of Northlingham, complained apparently directly to Lord

Cromwell, who replied, “Thou are a false varlet, and I like not of thee.”

Denny then replied to Lord Cromwell, “It is no marvel that you like not

me, for you like of those that maintain sedition against the Queen’s pro-

ceedings,” in other words, Denny accused Cromwell of supporting heresy.

Cromwell sued for scandal using a device known as a pleading qui tam

(literally, “who also”) by which a private person may bring a lawsuit for a

violation of a criminal law. The jury rejected Denny’s argument that his

statement was true. Coke defended Denny, demonstrating the faulty plead-

ing of the plaintiff’s lawyer, who had cited a poor translation of the statute

on which he based his suit from law French into English, which garbled

the nature of the claim under the statute as it was in force. This case is

interesting for a host of reasons. The use of pleadings qui tam has enjoyed

a revival in twentieth-century American procedure, and the case is also an

example of the courts’ voiding of a private act of Parliament. It is an in-

teresting case for the role played by Coke, who throughout his career sup-

ported the established Church of England against a host of detractors. It

was also Coke’s ﬁrst big case, which Coke won through the careful use of

technical pleading standards. Look for his instructions to law students in

this regard, near the end of the report. For the fate that awaited Rev. Denny

had Coke not found the technical ﬂaw, see The Case de Libellis Famosis,

at p. 145.

Henry Lord Cromwell brought an Action de Scandalis magnatum

against

Edmund Denny, Vicar of Northlingham in the county of Norfolk, tam pro

dom’ Regina, quam pro seipso;

and declared upon the stat. of 2 R. 2. cap. 5.

That if any contrive aliqua falsa nova, horribilia et falsa nuncia de Praelatis,

Ducibus, Comitibus, et aliis Proceribus et Magnatibus Angliae, &c.

by which

debate may arise betwixt the Lords and Commons (which God forbid) by

which danger, mischief and destruction may happen to the whole Realm, &c.

1. [Ed.: Concerning the slander of great men.]

2. [Ed.: both for the lady Queen and for himself [i.e. in a qui tam action].]

3. [Ed.: any false news, horrible and false tales concerning the Prelates, Dukes, Earls, and other Peers

and great Men of the Realm, etc.]

The Lord Cromwell’s Case 107

and quicunque contra fecerit,

shall incur the penalty of the stat. of W. I. c. 33.

And the defendant was charged that he said to the plaintiff, then a baron of

the realm, “It is no marvel that you like not of me, for you like of those that

maintain sedition against the Queen’s proceedings.” The defendant justiﬁed

the words, upon which the plaintiff demurred, and the bar was held insuf-

ﬁcient. And term’ Trinity 23 Eliz. in arrest of judgment it was moved by the

defendant’s counsel, that the declaration was insufﬁcient, because the said Act

of 2 R. 2. was mis-recited; for the words of the Act are, Si ascun “controver

ascum faux nouvelles et horribles et faux messoinges,”

which word “messoinges”

he who translated the statutes at large into English, has translated “messages”

which was the reason that he who drew the declaration in the case at Bar

inserted the said word “nuncia” where it should be “mendacia”. 2. The said

Act saith, “and whosoever shall do it, shall incur, &c.” And the plaintiff in

his declaration saith, et quicunq; contra fecerit, which is as much as to say,

“who shall not do it;” But against that it was objected, That the said Act was

a Private Act, it concerning only the | prelates, nobles, and certain great ofﬁcers,

whereof the Court would not take notice ex ofﬁcio; and therefore the Court

ought to take the Act as the party has alleged it: But it was resolved by Wray,

Chief Justice, Sir Thomas Gawdy, et totam Curiam,

that it was such Act,

whereof the Court ought to take notice; and eo magis

because it by a means

concerns the King himself.

1. For as much as it touches the Prelates, Nobles, and great Ofﬁcers, which

are of the King’s Council, and of eminent qualities, and serve him in so high

and honourable Ofﬁces, which they have under the King, and by his Royal

authority have the administration of justice to his subjects, by which it appears

that the slandering of them principally concerns the King himself in his Royal

government.

2. In as much as the statute saith, That danger, mischief, and destruction

may happen to the whole realm, &c. that also concerns the King, for he is

the Head of the Realm; and these are the reasons that always such actions de

scandalis magnatum

have been brought upon the said statute tam pro domino

4. [Ed.: whosoever shall do the contrary.]

5. [Ed.: If anyone should fabricate any false news and horrible and false lies.]

6. [Ed.: and the whole Court.]

7. [Ed.: all the more so.]

8. [Ed.: of great scandal (i.e., scandal of the great men).]

[13 a]

Part Four of the Reports108

Rege quam pro se ipso

and of all statutes which concern the King, the Judges

ought to take notice of them.

Also, it was likewise resolved that if the Act was private, and that the Court

ought to take it to be such as is alleged; Then the said Act was against law

and reason, and therefore void; For as the same is alleged those who do not

offend shall be punished, and that was condemnareinsontem et demitterereum:

for which cause judgment was given against the plaintiff quod nihil capiat per

billam.

And afterwards the plaintiff brought a new action, and amended the

faults of the Declaration: And then the Court was moved that the said words

were not Actionable, because it might well be that the plaintiff meant liking

of some persons which maintain sedition against the Queen’s proceedings,

and yet he did not know that they maintain sedition, nor do the words import

that the plaintiff knew that they maintained sedition. And it was said, quod

sensus verborum est duplex, scil. mitis et asper; et verba semper accipienda sunt

in mitiori sensu:

To which it was said, that sedition is a public thing. Et

dicitur seditio quasi seorsum itio magni populi, quando itur ad manus,

which

is notably described by the Poet:

Ac veluti magno in populo cum saepe coorta est

Seditio, saevitque animis ignobile vulgus,

Jamque faces et saxa volant, furor arma ministrat.

Virg. Aen.

By which sedition (being so public and violent) it was said that by common

intendment the plaintiff had notice of it; and it is not like felony or murder

which may be clandestine, and done in secret. But as to that, the Judges did

not deliver any opinion, for they said, that upon argument and consideration

they might alter their opinion | which they now conceived, which would be

dangerous to the party; and therefore they said to the defendant’s counsel, Be

9. [Ed.: also for the lord King as well as for himself [the plaintiff] in some degree.]

10. [Ed.: to condemn the innocent and acquit the guilty:]

11. [Ed.: that he take nothing by [his] bill.]

12. [Ed.: that the sense of words is of two kinds: that is, the mild and the harsh; and words are always

to be taken in the milder sense:]

13. [Ed.: Sedition is so called as if it were seorsum itio (the going asunder) of many people when it takes

place.]

14. [Ed.: And often, when a disturbance has arisen in a great nation, the base rabble rage angrily, and

now ﬂaming brands and stones ﬂy, and madness lends arms. (Virgil, Aeneid, 1. 148.)]

[13 b]

The Lord Cromwell’s Case 109

well advised, and plead, or demur at your peril; wherefore they pleaded a

special justiﬁcation (well knowing that the other matter should be saved to

them) and the effect of the justiﬁcation was, That the defendant was Vicar

of Northlinham, which was a Beneﬁce with Cure, and that the plaintiff pro-

cured J. T. and J. G. to preach severally in the church of Northlinham, who

in their sermons inveighed against the Book of Common Prayer, which was

established by the Queen and the whole Parliament in the ﬁrst year of her

reign, and afﬁrmed it to be superstitious and impious, &c. upon which the

plaintiff and defendant speaking in the said church of these sermons, because

the vicar knew they had no licence, nor were authorised to preach; when they

were ready to preach, before their sermons forbad them, but they by the en-

couraged by the Plaintiff proceeded. The plaintiff said to the defendant, “Thou

art a false varlet, and I like not of thee;” to which the vicar said, “It is no

marvel though you like not of me, for you like of these (innuendo praed’

T. and J. G.) that maintain sedition, (innuendo seditiosam illam doctrinam

)

against the Queen’s proceedings;” and so justiﬁed: And it was moved by the

plaintiff’s counsel, that this bar was insufﬁcient for divers causes.

1. The matter of justiﬁcation was insufﬁcient, because (as has been said)

sedition cannot be committed by words, but by public and violent action.

2. If the matter of justiﬁcation was sufﬁcient, then upon the said Dialogue

between the plaintiff and defendant the defendant is not guilty: But it was

said, that such justiﬁcation dialogue-wise had not been seen before; but if the

truth of the cause is such, he ought to plead not guilty, and give the special

matter in evidence.

But if he will justify, he ought to justify the words in the same sense they

import upon the matter alleged in the declaration. As if a man bring an Action

upon the Case for calling the Plaintiff murderer; The Defendant will say, that

he was talking with the plaintiff concerning unlawful hunting, and the plaintiff

confessed that he killed several hares with certain engines; to which the de-

fendant answered and said, “Thou art a murderer” (innuendo the killing of

the said hares) this is no justiﬁcation, for he does not justify the sense of the

words which the declaration imports, and therefore he ought to plead not

guilty; But as to that it was answered by the defendant’s counsel, and resolved

15. [Ed.: meaning, the aforesaid (J. T. and J. G.).]

16. [Ed.: meaning, that seditious learning.]

Part Four of the Reports110

by the whole Court, that the justiﬁcation was good. For in case of slander by

words, the sense of the words ought to be taken, and the sense of them appears

by the cause and occasion of speaking of them: for sensus verborum ex causa

dicendi accipiend’ est, et sermones semper accipiendi | sunt secundum subjectam

materiam.

Then in this case the defendant’s counsel have done well to shew

the special matter by which the sense of this word “sedition” appears upon

the coherence of all the words, that it was in the defendant’s meaning, the

said seditious doctrine against the Queen’s proceedings, scil. the said Act of

Parliament de anno primo,

by which the Book of Common Prayer was es-

tablished, and that he did not mean any such public or violent sedition as has

been described, and as ex vi termini per se

the word itself imports; and it

was said, God forbid that a man’s words should be by such strict and gram-

matical construction taken by parcels against the manifest intent of the party

upon consideration of all the words, which import the true cause and occasion

which manifest the true sense of them; quia quae ad unum ﬁnem locuta sunt,

non debent ad alium detorqueri:

and therefore in the said case of murder, the

Court held the justiﬁcation good; and that the defendant should never be put

to the general issue, when he confesses the words and justiﬁes them, or con-

fesses the words, and by special matter shews that they are not actionable.

And although he varies from the plaintiff in the sense and quality of the words,

yet it is no cause to drive him to the general issue; as in maintenance, the

plaintiff charges the defendant with unlawful maintenance, the defendant may

justify by reason of a lawful maintenance, and may not plead the general issue:

wherefore the plaintiff replied and said, Quod praed’ Edwardus Denny dixit

propalavit et praedicta verba, &c. de injuria sua propria absque tali causa,

and

thereupon issue was joined; et postea partes concordaverunt;

and this was the

ﬁrst cause that the author of this book (who was of counsel with the defendant)

moved in the King’s Bench.

17. [Ed.: the sense of the words is to be taken from the cause of the speech, and sermons are always

to be taken in reference to the subject matter.]

18. [Ed.: of the ﬁrst year,]

19. [Ed.: by force of the term by itself.]

20. [Ed.: because things that are spoken to one purpose should not be twisted into something else.]

21. [Ed.: That the aforesaid Edward Denny spoke and published the aforesaid words etc. of his own

wrong, without such cause,]

22. [Ed.: and afterwards the parties settled;]

[14 a]

Cutler v. Dixon 111

In this case Reader, you may observe an excellent Point of Learning in

Actions for Slander, to observe the occasion and cause of the speech, and how

the same may be pleaded in excuse of the Defendent.

2. When the matter in fact will clearly serve for your client, although your

opinion is that the plaintiff has no cause of action, yet take heed you do not

hazard the matter upon a demurrer; in which, upon the pleading, and oth-

erwise, more perhaps will arise than you thought of; but ﬁrst take advantage

of the matters of fact, and leave matters in law, which always arise upon the

matters in fact ad ultimum

and never at ﬁrst demur in law, when after the

trial of the matters in fact, the matters in law (as in this case it was) will be

saved to you.

Cutler v. Dixon.

(1585) Michalmass Term, 27 and 28 Elizabeth I

In the Court of King’s Bench.

First Published in the Reports, volume 4, page 14b.

Ed.: This is a note on the King’s Bench’s holding that a defendant in an

action brought before a justice of the peace may not bring a separate lawsuit

against the plaintiffs for allegations made in the pleadings of the initial suit.

It was adjudged, That if one exhibits Articles to Justices of Peace against

a person certain, containing divers great abuses and misdemeanors, not only

concerning the Petitioners themselves, but many others, and all this to the

intent that he should be bound to his good behaviour; In this case the party

accused shall not have for any matter contained in such Articles any Action

upon the Case, for they have pursued the ordinary course of Justice in such

case: And if Actions should be permitted in such cases, those who have just

cause for complaint, will not dare to complain for fear of inﬁnite vexation.

23. [Ed.: to the end.]

Part Four of the Reports112

Vaux’s Case.

(1591) Easter Term, 33 Elizabeth I

In the Court of King’s Bench.

First Published in the Reports, volume 4, page 44a.

Ed.: William Vaux was arrested for poisoning Nicholas Ridley, which ap-

parently he did at the instigation of Ridley’s wife, by having Ridley consume

a drink poisoned with ground cantharide beetles. Ridley died. Vaux was

indicted, but the form of his indictment neglected to state that Ridley

actually drank the poison. The court of assize rendered a judgment that

Vaux was a murderer but the indictment was insufﬁcient. Vaux argued he

was not guilty, but that anyway he could not be tried twice for the same

crime. The King’s Bench agreed that the Common Law will not allow

double jeopardy, or a person to be twice put in jeopardy of trial for the

same offence, but that in this case Vaux had never been truly acquitted

because he had never been in danger of punishment. An insufﬁcient in-

dictment cannot be the basis for release even upon a guilty verdict or a

confession, but there must be a new trial. Vaux was retried, found guilty,

and hanged.

William Vaux at the sessions of peace for the country of Northumberland,

held 27 Julii, anno 32 Eliz. before the justices of peace of the same county,

was indicted of voluntarily poisoning of Nicholas Ridley, which indictment

was removed into the King’s Bench: and in discharge thereof the said Vaux

pleaded, that at another time, scil. 12 Augusti, anno 30 Eliz. at Newcastle upon

Tyne in the county of Northumberland, before the Justices of Assise of the

same county the said Vaux was indicted: quod cum Nich’ Ridley nuper de W.

in com’ praed’ Armig’ jam defunctus, per multos annos, ante obitum suum nuptus

fuisset cuidam Margaretae uxori ejus, et nullum exitum habuit, praed’ Will’ Vaux

nuper de K. in com’ C. generos subdole`, caute`, at diabolice intendens mortem,

venenationem, et destructionem ipsius Nicolai, et Deum prae oculis non habens,

20 Decembris, anno 28 Eliz. apud W. praedict’ felonice, voluntarie, et ex malitia

sua precogitata, persuadebat eundem Nichol’ recipere et bibere quendam potum

mixtum cum quodam veneno vocat’ cantharides, afﬁrmans et veriﬁcans eidem

Nich’ quod’ praed’ potus sic mixtus cum praed’ veneno vocat’ canth’ non fuit

intoxicatus (Anglice` poisoned) sed quod per reception’ inde praed’ Nich’ exit’ de

Vaux’s Case 113

corpore dictae Margaretae tunc uxoris suae procuraret, et haberet ratione cujus

quidem persuasionis et instigationis praed’ Nich’ postea, scil. 16 Januarii anno

supradicto apud T. in com’ N. praed’ nesciens praedictum potum cum veneno in

forma praedict’ fore mixt’, sed ﬁdem adhibens praedict’ persuasioni dicti Willielmi

recepit et bibit, per quod praedictus Nicholaus immediate | post receptionem veneni

praedicti per tres horas immediate` sequent’ languebat, et postea praed’ 16 Jan.

anno supradict’ ex venenatione et intoxicat’ praed’ apud T. praed’ obiit: et sic

praed’ Will’ Vaux felonice` et ex malitia sua praecogitata praefat’ Nich’ voluntarie`

et felonice` modo et forma praed’ intoxicavit, interfecit, et murdravit, contra pacem,

&c.

Upon which indictment the said Vaux was arraigned before the same

justices, and pleaded not guilty: and the jurors gave a special verdict, andfound,

quod praed’ Nich’ Ridley venenatus fuit Anglice` poisoned, per receptionem praed’

cantharides, et quod praed’ Will’ Vaux non fuit praesens tempore quo praed’ Nich’

Ridley recepit praed’ canth’ sed utrum, &c.

And thereupon judgment was given

by the said Justices of Assise in this manner; super quo visis, et per Cur’ hic

intellectis omnibus et singulis praemissis, pro eo quod videtur Cur’ hic super tota

materia per veredictum praed’ in forma praed’ compert’, quod praed’ venenatio

per reception’ canth’ et praed’ procuratio praed’ Will’ ad procurand’ praed’ Nich’

ad accipiend’ praed’ canth’ modo et forma prout per verdict’ praed’ compert’ fuit

1. [Ed.: That, whereas Nicholas Ridley, late of W. in the aforesaid county, esquire, now deceased for

many years, before his death was married to a certain Margaret his wife, and they had no issue, the aforesaid

William Vaux, late of K. in the county of C., gentleman, wickedly, advisedly and devilishly intending the

death, poisoning and destruction of the selfsame Nicholas, and not having God before his eyes, on the

twentieth day of December in the twenty-eighth year of Elizabeth, at W. aforesaid, feloniously, wilfully

and of his malice aforethought, persuaded the same Nicholas to accept and drink a certain drink mixed

with a certain poison called cantharides, afﬁrming and averring to the same Nicholas that the aforesaid

drink, so mixed with the aforesaid poison called cantharides, was not poisoned but that by accepting thereof

the aforesaid Nicholas would procure and have issue of the body of the said Margaret then his wife, by

reason of which persuasion and instigation the aforesaid Nicholas afterwards, that is to say, on the sixteenth

day of January in the above mentioned year, at T. in the county of N. aforesaid, not knowing the aforesaid

drink to be mixed with the aforesaid poison, but trusting to the persuasion of the said William, accepted

and drank it, whereby the aforesaid Nicholas immediately after receiving the aforesaid poison was ill for

three hours immediately following, and afterwards, on the aforesaid sixteenth day of January in the above

mentioned year, died from the poisoning and intoxication aforesaid at T. aforesaid, and thus the aforesaid

William Vaux feloniously and of his malice aforethought wilfully and feloniously in manner and form

aforesaid poisoned, killed and murdered the aforesaid Nicholas, against the peace, etc.]

2. [Ed.: that the aforesaid Nicholas Ridley was poisoned by the receiving of the aforesaid cantharides,

and that the aforesaid William Vaux was not present at the time when the aforesaid Nicholas Ridley accepted

the aforesaid cantharides, but whether, etc.]

[44 b]

Part Four of the Reports114

non fuit felonia et murdrum voluntar’: ideo considerat’ est quod praed’ Will’ Vaux,

de felonia et murdro praed’ indictamento praed’ superius speciﬁcat’ necnon de

dicta felonica venenatione praed’ Nich’ Ridley in eodem indictamento nominati

eidem Will’ imposit’ eat sine die:

and as to the felony and murder he pleaded

not guilty.

And, ﬁrst, it was resolved per totam Curiam,

That the said indictment upon

which Vaux was so arraigned was insufﬁcient; and principally because it is not

expressly alleged in the indictment, that the said Ridley received and drank

the said poison, for the indictment is, praed’ Nich’ nesciens praed’ potum cum

veneno fore intoxicatum, sed ﬁdem adhibens dict’ persuasioni dicti W. recepit et

bibit, per quod, &c.

So that it doth not appear what thing he drank, for these

words (“venenum praed”)

are wanting; and the subsequent words, scilicet per

quod praedict’ N. immediate post receptionem veneni praedict’ &c.

which words

imply receipt of poison, are not sufﬁcient to maintain the indictment, for the

matter of the indictment ought to be full, express, and certain, and shall not

be maintained by argument or implication, because the indictment is found

by the oath of laymen.

2. It was agreed per Curiam, That Vaux was a principal murderer, although

he was not present at the time of the receipt of the poison, for otherwise he

would be guilty of such horrible offence, and yet should be unpunished, which

would be inconvenient and mischievous: for every felon is either principal or

accessary, and if there is no principal there can be no accessory, quia accessorium

sequitur principalem;

and if any had procured Vaux to do it, he had been

3. [Ed.: Whereupon, all and singular the foregoing having been seen and fully understood by the court

here, forasmuch as it seems to the court here upon the whole material found by the aforesaid verdict in

form aforesaid that the aforesaid poisoning by the acceptance of the cantharides, and the aforesaid procuring

by the aforesaid William to procure the aforesaid Nicholas to accept the aforesaid cantharides, as was found

by the aforesaid verdict in manner and form aforesaid, was not felony and wilful murder, therefore it is

decided that the aforesaid William Vaux, with respect to the aforesaid felony and murder speciﬁed above

in the aforesaid indictment, and of the said felonious poisoning of the aforesaid Nicholas Ridley named

in the same indictment, as charged against the same William, should go without day.]

4. [Ed.: by the whole Court,]

5. [Ed.: the aforesaid Nicholas, not knowing the aforesaid drink to be poisoned with venom, but trusting

to the said persuasion of the said William, accepted and drank it, whereby, etc.]

6. [Ed.: poison aforesaid.]

7. [Ed.: namely, whereby the aforesaid Nicholas immediately after the acceptance of the poison aforesaid,

etc.]

8. [Ed.: because the accessory follows the principal;]

Vaux’s Case 115

accessary before; quod | nota

a special case, where the principal and accessory

also shall both be absent at the time of the felony committed.

3. It was resolved by the Lord Wray, Sir Thomas Gawdy, Clench, and Fenner,

Justices, that the reason of Auterfoits acquit

was, because where the Maxim

of Common Law is, that the life of a man shall not be twice put in jeopardy

for one and the same offence, and that is the reason and cause that Auterfoits

acquitted or convicted of the same offence is a good plea; yet it is intendable

of a lawful acquittal or conviction, for if the conviction or acquittal is not

lawful, his life was never in jeopardy; and because the indictment in this case

was insufﬁcient, for this reason he was not legitimo modo acquietatus,

and

that is well proved, because upon such acquittal he shall not have an action

of conspiracy, as it is agreed in 9 Edw. 4. 12 a. b. vide 20 Edw. 4. 6. And in

such Case in Appeal, notwithstanding such insufﬁcient indictment, the abettor

shall be enquired of as it is there also held; and although the judgment is given

that he shall be acquitted of the felony, yet this acquittal shall not help him,

because he was not legitimo modo acquietatus; and when the law saith, that

Auterfoits acquitted is a good plea, it shall be intended when he is lawfully

acquitted; and that agrees with the old book in 19 Edw. 3. Corone 444. where

it is agreed, That if the process upon indictment or appeal is not sufﬁcient,

yet if the party appears (by which all imperfections of the process are saved)

and is acquitted, he shall be discharged; but if the appeal or indictment is

insufﬁcient (as our case is) there it is otherwise: But if one, upon an insufﬁcient

indictment of felony, has judgment, quod suspend’ per coll’,

and so attainted,

which is the judgment and end which the law has appointed for the felony,

there he cannot be again indicted and arraigned until this judgment is reversed

by error: But when the offender is discharged upon an insufﬁcient indictment,

there the law has not had its end; nor was the life of the party, in the judgment

of the law, ever in jeopardy; and the wisdom of the law abhors that great

offences should go unpunished, which was grounded without question upon

these ancient maxims of law and state; maleﬁcia non debent remanere impunita,

et impunitas continuum affectum tribuit delinquendi, et minatur innocentes qui

9. [Ed.: which note.]

10. [Ed.: previously acquitted.]

11. [Ed.: in lawful manner acquitted,]

12. [Ed.: that he be hanged by the neck,]

[45 a]

Part Four of the Reports116

parcit nocentibus:

So if a man be convicted either by verdict or confession

upon an insufﬁcient indictment, and no judgment thereupon given, he may

be again indicted and arraigned, because his life was never in jeopardy, and

the law wants its end; And afterwards, upon a new indictment, the said Vaux

was tried and found guilty, and had his judgment and was hanged.

Slade’s Case.

(1602) Trinity Term, 44 Elizabeth I

In the Court of King’s Bench.

First Published in the Reports, volume 4, page 92b.*

Ed.: John Slade entered a contract with Humphrey Morley. Slade sold the

grains he was growing on eight acres, and Humphrey promised to pay £16.

The day for payment came and went with no sign of the money from

Humphrey, and Slade sued in assumpsit, a form of contract enforcement

action that was then still controversial if an action in debt was available,

by bringing an action on the case, which is a special form of pleading that

allowed the recovery of special damages (or actual damages that included

not only money directly lost by the conduct of the defendant but also money

indirectly lost as a result of the defendant’s conduct). Thus Slade could

seek not only compensation for the damages he suffered but the money

lost on the whole debt. Humphrey was represented by Dodderidge and

Bacon. Coke represented Slade. The courts were initially divided over

whether the action could be maintained, but when the argument was

brought before the whole bench of all the courts of England, the King’s

Bench found that a person harmed by another’s breach on a contract could

seek an action, and the other benches appear to have acquiesced. Assumpsit

and action on the case were allowed, even though the plaintiff could have

sued in debt.

13. [Ed.: Misconduct ought not to remain unpunished, for impunity gives continuous encouragement

to offenders and threatens the innocent who suffer harm:]

*[See the pleadings at Hil. 38 Eliz. Rot. 305.]

Slade’s Case 117

John Slade brought an Action upon the Case in the Kings Bench against

Humphrey Morley, (which plea began Hill. 38 Eliz. Rot. 305.) And declared,

that where as the Plaintiff 10 Nov. 36 Eliz. was possessed of a Close of land

in Halberton in the County of Devon called Rack Park, containing by esti-

mation eight acres for term of divers years then and yet to come, and so

possessed, the Plaintiff the said 10 Nov. the said Close beforesaid sowed with

Wheat and Rie, which Wheat and Rie 8 Maii, 37 Eliz. were grown into blades:

The Defendant in consideration that the Plaintiff at the special instance &

request of the said Humphrey. bargained and sold to him the said blades of

Wheat and Rie growing upon the said Close (the tithes due to the Parson,

&c. excepted) did assume and promise to the Plaintiff to pay him 16l. at the

Feast of S. John the Baptist then next to come; and for not-payment thereof

at the said Feast of S. John Baptist, the Plaintiff brought the Action; The

Defendant pleaded Non assumpsit modo et forma;

and on trial of this issue

the Jurors gave a special Verdict, Scil. That the Defendant bought of the Plain-

tiff the Wheat and Rie in blades growing upon the said Close as aforesaid,

prout

in the Declaration is alleged. And further found, that between the

Plaintiff and Defendant, there was no other promise or assumption but onely

the said bargain; And against the maintenance of this Action divers Objections

were made by John Doderidge of Counsel with the Defendant.

1. That the Plaintiff upon this bargain may have ordinary remedy by Action

of Debt which is an Action formed in the Register, and therefore he shall not

have an Action upon the Case which is an extraordinary Action, and not

limited within any certain form in the Register; for ubi cessat remedium or-

dinarium, ibi decurritur ad extraordinarium, et nunquam decurritur ad extra-

ordinarium ubi valet ordinarium,

as it appeareth by all our Books; et nullus

debet agere actionem de dolo, ubi alia actio subest.

The second Objection was that the | maintenance of this Action doth take

away the Defendants beneﬁt of Wager of Law, and so bereaveth him of the

beneﬁt which the Law hath given him as his birthright. For peradventure the

Defendant hath paid or satisﬁed the Plaintiff in private betwixt them, of which

1. [Ed.: He did not undertake, in the manner and form [alleged].]

2. [Ed.: as.]

3. [Ed.: where the ordinary remedy ceases, one shall have recourse to the extraordinary; but one shall

never turn to the extraordinary where the ordinary is available,]

4. [Ed.: and no one should bring an action for a wrong where another action exists.]

[93 a]

Part Four of the Reports118

paiment or satisfaction he hath not any witness, and therefore it should be

mischievous if he shall not wage his Law in such Case. And that was the cause

(as was said) that debts by simple contract shall not be forfeited to the King

by outlawry or attainder, because that then by the Kings Prerogative the Subject

would be ousted of his wager of Law, which is his birthright as it is holden

in 49 Edw. 3. 5a. 50 Ass. 1. 16 Edw. 4. 4 & 9 Eliz. Dyer 262. And if the King

shall lose the forefeiture and the debt in such Case, and the debtor by Judgment

of the Law shall be rather discharged of his debt, before he shall be deprived

of the beneﬁt which the Law hath given to him for his discharge, although

that in truth the debt were due and payable; a fortiori

in the case at Barre,

the Defendant shall not be charged in an Action in which he shall be ousted

of his Law when he may charge him in an Action of debt, in which he may

have the beneﬁt thereof.

And as to these Objections, the Courts of King’s Bench and Common Pleas

were divided; for the Justices of the King’s Bench held that the Action (not-

withstanding such Objections) was maintainable; And the Court of Common

Pleas held the contrary. And for the honour of the Law, and the quiet of the

Subject in the appeasing of such diversity of opinions (Quia nil in lege in-

tolerabilius est eandem rem diverso jure censeri)

the case was openly argued

before all the Justices of England, and Barons of the Exchequer, Scil. Sir John

Popham Knight Chief Justice of England, Sir Edmund Anderson Knight Chief

Justice of the Common Pleas, Sir William Periam Chief Baron of the Ex-

chequer, Clark, Gawdy, Walmesley, Fenner, Kingsmill, Savile, Warberton, and

Yelverton, in the Exchequer Chamber, by the Queens Attorney for the Plain-

tiff, and John Dodderidge for the Defendant; and at another time the Case

was argued at Serjeants Inn before all the said Justices and Barons, by the

Attorney General for the Plaintiff, and by Francis Bacon for the Defendant;

and after many conferences between the Justices and Barons, it was resolved,

that the Action was maintainable, and that the Plaintiff should have Judgment.

And in this Case these Points were resolved.

1. That although an Action of debt lieth upon the contract, yet the bargainor

may have his Action of debt, or Action upon the Case at his election, and

that for three reasons or causes. 1. In respect of inﬁnite precedents, (which

5. [Ed.: so much the more so.]

6. [Ed.: (Nothing is more intolerable in law than to decide the same matter in different ways).]

Slade’s Case 119

George Kempe, Esquire Secondary of the Prothonotaries of the King’s Bench

shewed to me) as well in the Court of Comon Pleas as in the Court of King’s

Bench, in the reigns of King Hen. 6. Edw. 4. Hen. 7 & Hen. 8. by which it

appeareth, That the Plaintiffs declared that the Defendants in consideration

of a sale to them made of certain goods, did promise to pay so much money,

&c. in which | Cases the Plaintiffs had Judgment. To which precedents and

Judgments being of so great number, in so many successions of ages, and in

the several times of so many reverend Judges, the Justices in this Case gave

great regard; and so the Justices in ancient times, and from time to time did

as well in matters of form, as in deciding of doubts and questions as well at

the Common Law, as in construction of Acts of Parliament: And therefore

in 11 Edw. 2. Formedon 32. it is holden, That the ancient forms and manner

of precedents are to be maintained and kept; and in 34 Ass. 7. that which hath

not been according to usage shall not be suffered, [and in 2 Edw. 3. 29. the

ancient form and order is to be observed.]

In 39 H. 6. 30. the opinion of

Prisot’ et tot’ Cur’

was, That in a Writ of mesn

the Plaintiff ought to surmise

the tenure between the Lord paramount and the mesn, as well as between the

mesn and the tenant, and shew there divers reasons and causes of their opin-

ions; But when the Justices were informed by the Prothonotaries, that the

Book called les Tales, contained the form that had always in such Cases been

used; the Book saith, That the Justices resolved, that they would not change

the usage, notwithstanding that their opinion was to the contrary; and ac-

cording to the precedent they awarded the Declaration good: 4 Edw. 4. 44.

In a Writ of Error brought by John Paston to reverse an outlawry against him,

he did not surmise in the Writ at whose suit he was outlawed, and all the

Justices said, it was a strange Writ, and no certainty supposed thereby; for by

the Writ it did not appear whether he was outlawed at the suit of the party,

or at the King’s suit, or in what suit, or for what thing; and it might be that

he was outlawed for felony, debt, trespass, account or ﬁne to the King; But

when the Court was informed that the ancient form was such, then they

changed their opinions and awarded the Writ good. And resolved, that com-

mon course maketh a Law, although that now as there it was said, perhaps

7. [Ed.: Bracketted text omitted from the 1658 edition.]

8. [Ed.: and the whole court.]

9. [Ed.: An intermediary writ, ﬁled after the initial writ and prior to judgement.]

[93 b]

Part Four of the Reports120

reason willeth the contrary: But there the Justices said, We cannot change the

Law now, for that shall be inconvenient. And therewith agreeth L. 5 Edw. 4.

1. where it is said, That the course of a Court maketh a Law: vide Mich. 2 &

3 Phil. & M. 120. the statute of West. 2. cap. 12, quod justic’ coram quib’ format’

erit’ appellum et terminat

shall enquire of damages where the Defendant is

acquitted, yet precedents expound the Law against the express letter, Scil. That

Justices of Nisi Prius (before whom the appeal was not began) shall do it; And

many others to this effect are in our Books: But for as much as precedents

are not always allowable, for in our Books: the Judges reject some precedents,

see a notable Case in L. 5 Edw. 4. 110. for certain rules and differences in this

matter; there it is agreed, That where a question was of a retorn of an Assise,

and two or three precedents were shewed, which agreed with the said retorn;

and the Justices said, that two or three retorns or precedents doe not make a

Law or custome, especially when there are here in Court 40 and more pre-

cedents to the contrary; but if there were no precedent to the contrary it were

another | matter, if not that the Court doe adjudge it against reason, and then

it shall be amended, for perhaps the precedents passed without challenge of

the party, or debate of the Justices, as then (as it is there recited) of late it was

in a Writ of Error for reversing an outlawry in the County of Lancaster, and

the Error was because the Sheriff retorned, That ad com’ Lancastriae tent’ ibid’,

&c.

where it should be, ad com’ Lancastriae tent’ apud Lancastr’,

or other

certain place to which this word ibidem shall have relation; and although that

there were shewed 100 precedents according to the said retorn, yet the outlawry

was reversed: So that in divers Cases precedents do not make a Law; and

therefore it was said by the Justices to the parties, That he who would have

advantage of precedents ought to search for them at his peril, and for his speed,

for the Court would not search for them; for if none, or no usual precedents

are not shewn, the Court ought to adjudge according to Law and reason.

Out of which Book, 1. It is to be observed, that two or three or such small

number of precedents, doe not make a Law against the generality of precedents

in such Case.

2. That the retorn of Sheriffs or Entries of Clerks without challenge of the

party, or consideration of the Court being against Common Law and reason,

10. [Ed.: that the justices before whom the appeal shall be formulated and determined.]

11. [Ed.: at the county of Lancaster held there, etc.]

12. [Ed.: at the county of Lancaster held at Lancaster,]

[94 a]

Slade’s Case 121

are not allowable: But when the precedents are Judicial, Scil. where the Justices

by divers succession of ages have given in Actions there brought, it shall be

intended that some of the Counsel with the Defendant, or some of the Justices

before whom the Action was tried, and the Record read would have excepted

against it, if in their judgment the Action was not maintainable: but in Case

of return of an Outlawry, or entries of Clarks, the Records pass in silence,

and without exception of the parties, and therefore are not so authentical as

Judgments upon demurrers or verdicts; and therefore in such Cases Multitudo

errantium non parit errori patrocinium,

if such retorns or entries of Clerks

and Ofﬁcers be clearly in the opinion of the Justices against Law and reason:

So that in the Case at Barre it was resolved, That the multitude of the said

Judicial precedents in so many successions of ages well prove that in the Case

at Barre the Action was maintainable.

The second cause of their Resolutions was divers Judgments and Cases

resolved in our Books where such Actions upon the Case upon Assumpsit

hath been maintainable, when the party might have had an Action of debt,

21 Hen. 6. 55 b. 12 Edw. 4. 13. 13 Hen. 7. 26. 20 Hen. 7. 4 b. & 20 Hen. 7.

8 b. which Case was adjudged as Fitz James citeth it, 22 Hen. 8. Dier 22 b.

27 Hen. 8. 24 & 25 in Tatams case, Norwood and Read’s case adjudged Plowdens

Comm. 180.

3. It was resolved, That every contract executory importeth in it self an

Assumpsit,

for when one agreeth to pay money, or to deliver any thing, thereby

he promiseth to pay, or deliver it; and therefore when one selleth any goods

to another, and agreeth to deliver them at a day to come, and the other in

consideration | thereof promiseth to pay so much money to the other, in this

Case both parties may have an Action of debt, or an Action upon the Case

on Assumpsit, for the mutual executory agreement of both parties importeth

in it self reciprocal Action upon the Case, as well as Action of debt, and

therewith agreeth the Judgment in Reade and Norwoods Case Plow Comm.

128.

4. It was resolved, That the Plaintiff in this Action upon the Case upon

Assumpsit shall not recover onely damages for the special loss (if any be) which

13. [Ed.: The multitude of those in error is no defence of the error,]

14. [Ed.: Undertaking (An action to enforce a contract not under seal; the plaintiff alleges the defendant

undertook an obligation that the law should enforce.)]

[94 b]

Part Four of the Reports122

he hath, but also for the whole debt, so that recovery or barre in this Action

shall be a good barre in an Action of debt brought upon the same contract;

so vice versa, a recovery or barre in an Action of debt is a good barre in an

Action upon the Case upon Assumpsit. Vide 12 Edw. 4. 13 a. 2 Rich. 3. 14. (2)

33 Hen. 8. Action sur le Case. Br. 105.

5. In some Cases it shall be mischievous, if an Action of debt shall be only

brought, and not an Action upon the Case, as in the Case (inter) (Redman

and Peck) 2 & 3 Phil. & Mar. Dyer 113. They bargained together that for a

certain consideration Redman should deliver to Peck 20 Quarters of Barley

yearly during his life, and for not delivery in one year it is adjudged that an

Action well lieth, for otherwise it shall be mischievous to Peck, for if he should

be driven to his Action of debt, then he himself shall never have it, but his

Executors or Administrators, for debt doth not lie in such Case till all the

days be incurred, and that shall be contrary to the bargain and intent of the

parties, for Peck doth provide it yearly for his necessary use: So (5 Ma. Br.

Action sur le Case 108.) that if a sum be given in marriage to be paid at several

days, an Action upon the Case lieth for non-payment at the ﬁrst day, but no

Action of debt lieth in such case till all the days are past. Also it is good in

these days in as many Cases as may be done by the Law, to oust the Defendant

of his Law, and to try the same by the Country, for otherwise it shall be a

great occasion of Perjury.

6. It was said, That an Action on the Case on Assumpsit is as well a formed

Action and contained in the Register, as an Action of debt, for there is its

form. Also it appeareth in divers other Cases in the Register, That an Action

on the Case will lie, although the Plaintiff may have another formed Action

in the Register; F. N. B. 94 g. & Register 103 b. If a man hath a mannor within

any Honour, and has a Leet within his mannor of his Tenants, if he or his

tenants are distrained by the Lord of the Honour to come to the Leet of the

Honour, he who is so distrained may have a general Action of Trespass, or a

special Writ upon his Case: So if any Ofﬁcer take toll of him who ought to

be quit of toll, he shall have a general Action of trespass, or an Action upon

his Case, as appeareth by Fitz. ibid. 94. And if a Prior or other Prelate be

riding in his journey, and one distrainth his horse upon which | he rideth

when he may distrain other goods. he may have a general Action of Trespass

or an Action upon his Case, as appeareth in the Register (100 b. and F. N.

B. 93. H.), If the Sheriff suffer one in Execution upon a Statute Merchant to

escape, the conusee may have an Action of debt, or an Action upon the case

[95 a]

Slade’s Case 123

(H), as appeareth by the Register, 98 b. and F. N. B. 93. B. C. So if a man put

the Executors of lessee for years out of their term, they may have a special

Writ upon their Case, as appeareth F. N. B. 92. G. & Register 97. and yet he

may have Ejectione ﬁrmae,

or Trespass. And therefore it was concluded that

in all cases when the Register hath two Writs for one case, it is in the parties

election to take which Writ he will: But the Register hath two several Actions,

Action upon the Case upon Assumpsit, and also an Action of debt, and therefore

the party may elect the one or the other.

And as to the Objection which hath been made, that it shall be mischievous

to the Defendant that he shall not wage his Law, forasmuch as he might pay

it in secret: To that it was answered, That it shall be accounted his folly that

he took not sufﬁcient witnesses to prove the paiment he made; But the mischief

shall be rather on the other part, for now experience proves that mens con-

sciences grow so large, that the respect of their private commodity induceth

men (and chieﬂy those who have declining estates) to perjury; for jurare in

propria causa (as one saith) est saepenumero hoc seculo praecipitium diaboli ad

detrudendas miserorum animas ad infernum.

And therefore in debt, or any

Action where Wager of Law is admitted, the Judges doe not admit him to it

without good warning, and due examination of the party. And as to the Case

which was cited, That debts or duties due by single contract where the party

may wage his Law shall not be forfeit by outlawry, because the debtor thereby

should be ousted of his Law; To that it was answered by the Attorney General,

that in such Cases by Law debts or duties shall be forfeit to the King, and so

are the better opinions of the Books scil 3 Edw. 3. Corone 343. 19 Edw. 2. Avowry

223. If the tenant of a Prior alien is amerced for want of suit at a Court-Baron,

and the King seiseth the temporalties of the Prior alien, yet in an action of

debt brought for the same by the prior alien, he shall wage his Law, as it was

adjudged 6 Edw. 6. in Serjeant Bendloes Reports, 28 Edw. 3. 92. in Accompt, and

Stamford Pleas of the Crown 188. and inﬁnite precedents in all ages in the

Exchequer which I have seen approve it. And so it was of late resolved in the

Exchequer, and so was holden in this Case by Popham, Anderson and all the

other Justices with whom I have conferred, against the sudden opinions in

15. [Ed.: Writ to recover for trespass, literally to throw off of the land,]

16. [Ed.: Swearing in one’s own cause is often in these times the devil’s trapdoor for dragging the souls

of the wretched down to Hell.]

Part Four of the Reports124

49 Edw. 3. 5. 50 Ass. 1. 16 Edw. 4. 4. & 9 Eliz. 262. and so you have | a doubt

in our Books well resolved.

And note Reader, that in every quo minus

brought by the King’s debtor

in the Exchequer against one who is indebted to him upon a simple contract,

the Defendant shall not have his Law, for the beneﬁt of the King, as appeareth

in 8 Hen. 5. Ley 66. 20 Edw. 3. Ley. 52. 10 Hen. 7. 6. and yet there the King is

not party, a fortiori

when such debt or duty is forfeit to the King, and the

King is the sole and immediate party: And note, Reader, this Resolution as

to this point with the Judicial Law of God, upon which our Law is in this

point grounded, for it appeareth by the 22 Chapter of Exodus, ver. 7. Si quis

commendaverit amico pecuniam, &c. et ver. 10. Si quis commendaverit proximo

suo asinum, bovem, ovem, et omne jumentum ad custodiam, et mortuum fuer’,

aut debilitatum aut captum ab hostibus, nullusque hoc viderit, jusjurandum erit

in medio quod non extenderit manum ad rem proximi sui, suscipietque Dominus

juramentum et ille reddere non cogetur;

By which it appeareth; that it is in

the election of the party, either to charge the Defendant by witnesses if he

will and to oust him of his Law, or to referre it to the Defendants oath. And

the Text saith, Nullusque hoc viderit, scil.

if there be no witnesses. So by our

Law in the same Case put in the Text, the owner hath his election either to

bring his Action upon the Case in which the Defendant cannot wage his Law,

or an Action of detinue

in which he may, Et jusjurandum in hoc casu est

ﬁnis;

for the Plaintiff is bound thereby, and it is the end of all controversie.

And I wonder in these days so little consideration is had of an oath, as I daily

observe; cum jurare per Deum actus religionis sit, quo Deus testis adhibetur tan-

quam is qui sit omnium rerum maximus, &c.

17. [Ed.: Writ to recover waste brought by one with a right to house-bote or hay-bote in another’s

woods,]

18. [Ed.: so much the more so.]

19. [Ed.: If someone hands over money to his friend etc., and verse 10, if someone hands over to his

neighbour an ass, an ox, or any beast, to look after, and it dies or becomes feeble, or is seized by enemies,

and no one else sees this, there shall be a solemn oath between them that he has not laid hands on his

neighbour’s goods, and the owner shall take an oath that he will not compel him to return them. [Exodus,

xxii.] (This passage in English in some editions.)]

20. [Ed.: And no one sees this.]

21. [Ed.: Writ to recover goods in kind or, in the alternative, damages.]

22. [Ed.: The oath in this case makes an end of it.]

23. [Ed.: since to swear by God is a religious act, whereby God is called to witness, as He who is the

greatest of all things etc.]

[95 b]

Part Five of the Reports

The Fifth Part of Coke’s Reports was published in 1605. It was originally entitled

Quinta pars Relationum Edwardi Coke Equitis aurati, Regii Attornati Generalis.

De variis Resolutionibus & Judiciis, magnaˆ & maturaˆ deliberatione in rebus

permagni momenti & ponderis, aˆ reverendis Judicibus & Juris-consultissimis latis;

una` cum Resolutionum & indiciorum Rationibus & Causis. In lucem aedita anno

foelicissimi & ﬂorentissimi regni Regis Jacobi, Angliae Franciae & Hiberniae, 3.

Scotiae vero` 39. augustissimaeq. Majestati eius, justitiae fonti, & legem animae,

subiectissima observantiae ergo` merito` dedicata & consecrata. In English, The

Fifth part of the reports of Sr. Edward Coke, Knight, the Kings Attorney Generall.

Of divers Resolutions and Judgments given upon great deliberation, in matters of

great importance & consequence by the reverend Judges and Sages of the Law;

together with the reasons and causes of their Resolutions and Judgements. Published

in the yeare of the most happie and prosperous raigne of King James, of England,

France and Ireland the 3. and of Scotland the 39. and in all humblenesse, of right,

dedicated to his most excellent Majestie, being the fountaine of Justice, and the

life of the Law. The cases in this part are concerned, ﬁrst, with the adminis-

tration of law over church matters, particularly the regulation of the clergy

and church lands by ecclesiastical and law courts. There are substantial col-

lections of cases on the following: covenants in land, contracts, and leases,

including waste and rights to a shipwreck; usury and lending; executions on

a debt; the regulation and removal of ofﬁceholders; the by-laws and ordinances

of cities; city, commercial, and manorial customs; and ofﬁcials’ powers of

search and arrest.

Part Five of the Reports126

Epigram from the title page:

Quid enim laboro, nisi ut veritas in omni questione explicetur;

verum dicentibus facile cedam.

Tul. Tusc. quest. Lib. 3.

(Preface)

To the Reader.

It is truely said (good Reader) that Error (Ignorance beeing her inseperable

twynne) doeth in her proceeding so inﬁnitely multiply her selfe, produceth

such monstrous & strange Chimaeraes, ﬂoateth in such and so many incer-

teinties, and sucketh downe such poyson from the contagious breath of ig-

norance, as all such into whom she infuseth any of her poysoned breath, shee

dangerously infects or intoxicates; And that which is wonderfull before shee

can come to any end, she bringeth all things (if she be not prevented) by

confusion to a miserable and untimely end; Naturalia & vera artiﬁcialia sunt

ﬁnita, nullus terminus falso, error immensus.

On the other side, Trueth cannot

bee supported or defended by any thing but by Trueth her selfe and is of that

constitution and constancie, as she cannot at any time or in any part or poynt

bee disagreeable to her selfe; she hateth all bombasting and soﬁstication, and

bringeth with her certainty, unity, simplicity and peace at the last; Putida

salsamenta amant origanum, veritas per et placet, honestae per se decent, falsa

fucis, turpia phaleris indigent.

Ignorance is so far from excusing or extenuating

the error of him that had power to ﬁnd out the Trueth (which necessarily he

ought to know) and wanted only will to seek it, as shee will be a just cause

of his great punishment. Quod scire debes et non vis, non pro ignorantia sed pro

contemptu haberi debet.

Error and falshood are of that condition, as without

1. [Ed.: For why do I labor, if not that the truth in every question be unraveled; to the speakers of

Truth, I gladly yield, (Cicero, Tusculan Disputations, 3.46 & 3.51).]

2. [Ed.: Natural and artiﬁcial truths made by art are ﬁnite; but there is no end to falseness, and error

is immense.]

3. [Ed.: A foul sauce requires seasoning; truth is of itself pleasing, beauty is of itself comely. Falsehood

requires cosmetics; ugliness needs adornment.]

4. [Ed.: That you refuse to learn what you ought to know should not be accounted ignorance but

contempt.]

Preface 127

any resistance they will in time of them selves fade and fall away: But such

is the state of Trueth, that though many doe impugn her, yet will shee herself

ever prevail in the end, and ﬂourish like the palm-tree; shee may peradventure

by force for a time be trodden down, but never by any means whatsoever can

shee be trodden out. There is no subject of this Realme, but being instructed

by good and plain evidence of his auntient and undoubted patrimony and

birthright, (though hee hath for some by ignorance, false persuasion, or vain

feare, been deceived or dispossed) but will consult with learned and faithfull

counsellors for the recovery of the same.

The auntient & excellent Lawes of England are the birth-right and the most

auntient and best inheritance that the subjects of this realm have, for by them

hee injoyeth not onely his inheritance and goods in peace & quietnes, but

his lyfe and his most deare Countrey in safety. And for that I feare that many

of my deare Countreymen, (and most of them of great capacitie, and excellent

parts) for want of understanding of their own evidence, doe want the true

knowledge of their auntient birth-right in some points of greatest importance.

I have in the beginning of this my ﬁft work, directed them to those that will

not only faithfully counsell, & fully resolve them therein, (such as cannot be

daunted with any feare, mooved by any affection, nor corrupted with any

reward, but also establish and settle them in quiet possession. Upon just

grounds to rectiﬁe an Error in a mans owne mind is a work of a cleare un-

derstanding, & of a reformed will, and frequent with such as be good men,

& have sober and setled wits. The end of such as write concerning any matter,

which by some for want of instruction is called into controversie, should be,

with al the candor & charity that can be, used, to perswade and resolve by

demonstrative proofes the diligent Reader in the truth. But now adayes those

that write of such matters, doe for the most part by their bitter and uncharitable

invectives, transported with passion and furie, either beget new controversies,

or do as much as in them lye to make the former immortall. Certaine it is;

that some Books of that argument, that have had truth for their center, yet

because they have wanted temperance, modesty, & urbanity for their circum-

ference, have to the great prejudice of the truth hardened the Adversarie in

their errors; and by their bitter invectives, whetted them not onely to defend

themselves, and to offend in the like, but many times (beeing thereby urged

to write) to defend the error it selfe to the hurt of many, which otherwise

might have vanished away without any contradiction. He that against his

conscience doth impugne a knowne trueth, doth it eyther in respect of him-

Part Five of the Reports128

selfe, or of others; of himselfe, in that he hath within him a discontented heart;

of others, whom for certaine worldly respects he seeketh to please: Discon-

tented he is, either because hee hath not attayned to his ambitious and unjust

desires, or for that in the Eye of the state, he for his vices or wickednes hoth

justly deserved punishment & disgrace, & therefore doth oppose himselfe

against the current of the present to please others, in respect that his credit

or maintenance dependeth upon their favour or benevolence. I Know that at

this day all Kingdomes and States are governed by Lawes, & that the particular

& approved custome of every nation is the most usuall binding & assured

Lawe; I deale only with the municipall lawes of England, which I professe,

and where of I have been a Student above these 25. yeres: My only end and

desire is, that such as are desirous to see & know (as who will not desire to

see & know his own:) may be instructed: such as have been taught amisse

(every man beleeving as he hath been taught) may see and satisﬁe himselfe

with the truth, and such as know and hold the truth (by having so ready &

easie a way to the fountaines themselves) may be comforted & conﬁrmed.

Farewell.

Multaignoramus quae non laterent, si veterum lectio nobis

esset familiaris.

Macrob.lib.6.Satur.

Foster’s Case.

(1590) Hilary Term, 32 Elizabeth I

In the Court of King’s Bench.

First Published in the Reports, volume 5, page 59a.

Ed.: John Lane swore that Ursula Foster was going to injure him or burn

down his house, and he sought a general warrant from Nathaniel Bacon,

a justice of the peace, who issued it to Robert Smith, the constable. Smith

and several other constables arrested Ursula, and the constables offered to

take her to Thomas Farmer, another justice of the peace, to post bond.

Foster refused to go, but they took her to him anyway, where she entered

5. [Ed.: We are ignorant of many things which would not be hidden if we were familar with the reading

of ancient authors.]

Foster’s Case 129

a recognizance to appear in court, after which the constables took her to

Nathaniel Bacon, where she refused to post assurances of good conduct.

She sued for false imprisonment but lost. The King’s Bench found that a

constable may take a captive under a general warrant to any available justice.

John Foster and Ursula his wife brought a Writ of false Imprisonment

against Robert Smith, and upon the pleading as special verdict, the Case was

such; scil.

That the town of Brancaster is within the Hundred of Smithden,

in the County of Norfolk; and that the Defendant was praed’ tempore quo,

&c.

one of the Constables of Brancaster. And that Nathaniel Bacon, Esquire,

then one of the Justices of Peace within the said County, made a warrant sealed

with his seal directed amongst others to the Constables of Brancaster, reciting

that John Lane of Brancaster was in fear of his life, mutilation of his members,

and burning of his houses by Ursula the Plaintiff, &c. Vobis, &c. praecipimus

quod praed’ Ursulam coram aliquo justiciarior’ nostrorum ad pacem in com’

praedict’ assign’ venire faciat’, seu aliquis vestra´m venire faciat’ sufﬁcient’ man-

ucapt’, quod ipsa praedict’ Ursula praefat’ Johann’ Lane damnum & malum

aliquod, &c. non faciat, nec ﬁeri procurabit. Et si hoc facere recusaverit, tunc

ipsam sic recusantem proxim’ prison’ nostrae in com’ praed’ duci facias, &c. ibidem

moratur’ quousque gratis hoc facer’ voluer’, &c.

By force of which warrant the

Defendant did arrest the said Ursula, and that afterwards the Plaintiff and

one John Hammond | offered them to goe to Thomas Farmor, Esquire, one

of the Justices of Peace of the same County, to be bounden to the Queen

according to the purport of the said warrant; And that the said Robert Smith

did refuse to goe to the said Thomas Farmor upon which the Plaintiffs went

with the said John Hammond to the said Thomas Farmor, and there ac-

knowledged a Recognizance to the Queen to appear at the next Sessions to

be holden within the Hundred of Smithden (the which was not according to

the warrant) and that the Defendant praedict’ tempore quo, &c. by force of

1. [Ed.: that is to say.]

2. [Ed.: at the aforesaid time when etc.]

3. [Ed.: We command you etc. that you cause the aforesaid Ursula to come before any of our justices

assigned to keep the peace in the aforesaid county, or cause any of you to ﬁnd sufﬁcient mainprise, that

the said Ursula should not cause or procure to be caused any damage and harm etc. to the aforesaid John

Lane. And if she [they] should refuse this, then cause [the person] so refusing to be led to our nearest

prison in the aforesaid county, etc., there to remain until he will do this freely, etc.]

[59 b]

Part Five of the Reports130

the said warrant brought the said Ursula before the said Nathaniel, before

whom she refused to ﬁnd sureties; for which the said Defendant carried the

said Ursula to Gaol by force of the said warrant. And in this Case two Points

were resolved by Wray, chief Justice, and the whole Court.

1. That upon the said general Warrant scil. Coram aliquo Justiciar’, &c.

is at the election of the Constable, who is an Ofﬁcer and minister of Justice,

to carry the party arrested to what Justice he will, for it is more reasonable to

give election to the ofﬁcer, who in presumption of Law is a person indifferent,

and sworn to do and execute his Ofﬁce duly, then to give the election to the

Delinquent himself, who by presumption of Law will seek excuses, and perhaps

will carry the Constable, being for the most part a poor man, to the farthest

part of the County, by reason whereof such Constable would be more negligent

and remiss of such Warrants for fear of travel, and loss of their time; Which

Judgment is against the opinion of Fineux, 21 Hen. 7. 20. obiter,

whereof the

reporter maketh a Quaere.

But it agreeth with the opinion of the Lord Brook

in abridging the Case of 21 Hen. 7. tit. Faux Imprisonment, 11. Note Reader,

the Law adjudged in the point, which never (as I know) was adjudged before.

2. It was resolved, That after the Ofﬁcer in the Case above, had brought

the party before the Justice, and before him she refused to ﬁnd sureties, the

Ofﬁcer without a new Warrant or commandment may carry the party to

Prison, and that by the words of the said Warrant, Et si hoc facere recusaverint,

&c.

And Wray, Chief Justice, said, That a Justice of Peace may in such Case

make a Warrant to bring the party before himself, and the same shall be good

and sufﬁcient in Law: For, for the most part, he who maketh the Warrant,

hath best knowledge of the matter, and therefore most ﬁt to doe Justice in

the Case.

4. [Ed.: namely, before any of the Justices, etc.]

5. [Ed.: by the way.]

6. [Ed.: Query.]

7. [Ed.: And if they refuse to do this, etc.]

The Chamberlain of London’s Case 131

Cases of By-Laws and Ordinances

The Chamberlain of London’s Case.

(1590) Michaelmas Term, 32 & 33 Elizabeth I

In the Court of King’s Bench.

First Published in the Reports, volume 5, page 62b.

Ed.: The city of London passed a by-law requiring taxes on all broad-cloth

sold there, and required it to be ﬁrst approved for sale by city ofﬁcials at

Blackwell Hall, with a penalty for non-compliance. The Chamberlain of

London brought an action for debt against the merchants who had not

paid. The merchants complained that the tax was a usurpation of Parlia-

ment’s right to tax, at least over non-City residents, and that the City’s

right was not unlimited. The action for debt was removed from the city

court to the King’s Bench, where the tax was upheld as a customary regu-

lation of the City of London. In passing, the Court noted that the King

may regulate trade, requiring by charter ships to unload only in certain

ports.

The Chamberlain of London brought an Action of Debt in London at the

Guildhall there against divers persons, &c. And it was grounded upon an Act

of Common Council, or Ordinance made by the Mayor, Aldermen, and Com-

monalty of the City at their common assembly (which they make by custom,

and which amongst others is conﬁrmed by divers Acts of Parliament) by which

it was ordained, That if any Citizen, freeman, or stranger within the said City,

put any Broad cloth to sale within the City of London before it be brought

to Blackwell-hall to be viewed and searched, so that it may appear to be saleable,

and that Hallage

be paid for the same, scil. 1d. for every cloth, that he shall

forfeit for every cloth 6s. 8d. And further it was ordained, For such forfeiture

the Chamberlain of London for the time being should have an Action of debt,

&c. And because the Defendants had broken the said Ordinance, for the

penalty inﬂicted by the said Ordinance, the Chamberlain of London brought

an Action of debt in London and the same was removed by Habeas Corpus

1. [Ed.: “Hallage” is a tax on goods sold in a market.]

2. [Ed.: Note, several editions translate this as “corpus cum causa,” literally, “body with cause,” a variant

name for the writ of habeas corpus, a writ directing an ofﬁcer to present a prisoner to determine the legality

Part Five of the Reports132

into the King’s Bench. And it was moved that those in London cannot make

Laws and Ordinances to binde the King’s Subjects, and principally strangers,

for then they shall have as high authority as an Act of Parliament: And 2. The

said Ordinance (as it was urged) was against the Law and the freedom and

liberty of the Subject, to compel him to bring his Clothes to any one place.

3. The imposit. of 1d. for Hallage was a charge to the Subject, and by the

same reason they may impose 1d. they may impose 2d. and so in inﬁnit’:

And one of the Inner Temple of Counsel with the City moved to have a

Procedendo.

It appeareth by many precedents, That it hath been used within

the City of London time out of minde for those of London to make Ordinances

and Constitutions for the good order and government of the Citizens, &c.

consonant to Law and reason, which they call Acts of Common Council. Also

all their Customs are conﬁrmed by divers Acts of Parliament, and all such

Ordinances, Constitutions, or By-laws are allowed by the Law, which are made

for the true and due execution of the Laws or Statutes of the Realm, or for

the well government and order of the Body incorporate. And all others which

are contrary or repugnant to the Laws or Statutes of the Realm are void and

of no effect: And as to such Ordinances and By-laws, these differences were

observed; Inhabitants of a Town without any Custome may make Ordinances

or By-laws for the reparation of the Church, or a high way, or any such thing

which is for the general good of the publick, and in such Case the greater

part shall bind all the rest without any Custom. Vide 44 Edw. 3. 19. But if it

be for their own private proﬁt, as for the well ordering of their Common of

pasture, or the like, there, without a Custom they cannot make By-laws: And

if be a Custom, then the greater part shall not binde the less, if it be not

warranted by the Custom. For as Custom creates them, so they ought to be

warranted by the Custom Vide 8 Edw. 2. Assise 413. Also Corporations cannot

make Ordinances or Constitutions without a Custom, or the King’s Charter,

if not for things which concern the Commonwealth, as reparations of Church

or common high ways, or the like. Vide 44 Edw. 3. 19. 8 Edw. 2. Assise 413.

21 Edw. 4. 54. 11 Hen. 7. 13. 21 Hen. 7. 20 & 40. 15 Eliz. Dyer 322.

of the prisoner’s detention, sometimes used as a means of review of another court’s orders. The 1658 edition

prints this as “habeas corpus.”]

3. [Ed.: inﬁnitely.]

4. [Ed.: Writ directing a lower court to proceed to judgment.]

[63 a]

The Chamberlain of London’s Case 133

And as to the Case at Barre many Statutes were made for the true making

of woollen Cloth, which is the principal Commodity of this Realm; and to

the intent that the said Statutes might be the better executed without any

deceit, the said Act of Common Council was made, that they shall be brought

to Blackwell-hall, as to a place publick, and known, to the intent they might

be searched and viewed, if they were made according to the said Statutes. So

the said Ordinance being made for the better keeping and execution of the

said Laws, to prevent all frauds and falsities, was good and allowable by the

Law. Also the assessing of the said 1d. for Hallage was good, because it was

pro bono publico,

and it was competent and reasonable, having regard to the

beneﬁt | which the Subject enjoyed by reason of the said Ordinances, and

such assessments being for the maintenance of the publick good, and not pro

privato lucro,

were maintainable by the Law; and it was not to be said a burden

or charge to the Subject when he reaped a beneﬁt by it. But it is like Pontage,

Murage, Toll, and the like, as appearth in 13 Hen. 4. 14. b. in which Cases

the summe for reparations of Bridges, Walls, &c. ought to be so reasonable,

that the Subject shall have more beneﬁt thereby than charge.

Also the penalty inﬂicted upon the offender, be he Citizen or stranger, is

lawful, the offence being done within the City, and the summe being com-

petent and proportionable to the offence, and without a penalty the Ordinance

shall be in vain: for Oderunt peccare mali formidine poenae.

And the appoint-

ment of their Chamberlain, being their publick Ofﬁcer to bring the Action

of Debt was well and allowable by Law; and the Ordinance being according

to Law, may be put in execution without any other allowance, notwithstanding

the Statute of 19 Hen. 7. cap. 7.

And after great deliberation Wray, chief Justice, by the advice of the other

Justices, granted a Procedendo. Vide 2Edw.3.7.John de Brittain’s Case. The

King granted by his Charter that all manner of Ships coming to such a Haven

laden with Merchandizes, should be unladen at a certain place, and not else-

where, to the intent he might be better answered his Customs and other duties.

5. [Ed.: for the public good.]

6. [Ed.: for private proﬁt.]

7. [Ed.: Evil persons hate to offend for dread of punishment.]

[63 b]

Part Five of the Reports134

Clark’s Case.

(1596) Trinity Term, 38 Elizabeth I

In the Court of Common Pleas.

First Published in the Reports, volume 5, page 64a.

Ed.: This note case describes an important limit to the Chamberlain’s case,

immediately preceding it. A burgess refused to pay tax assessed to pay for

civic buildings in the new town of St. Albans and was arrested under the

town ordinances. Applying Magna Carta, the Common Pleas held that the

town had no authority to inﬂict imprisonment under a by-law.

In an Action of false Imprisonment brought by Clark against Gape; the

Defendant justiﬁed the imprisonment, because King Edward the sixth in-

corporated the town of Saint Alban’s by the name of Mayor, &c. and granted

to them to make Ordinances; And shewed, that the Queen appointed the

Term to be kept there, and that they with the assent of the Plaintiff and other

Burgesses, did assess a summe on every inhabitant for the charges in erecting

the Courts there; and ordained, That if any refuse to pay it, that he should

be imprisoned, &c. and because the Plaintiff being a Burgess, &c. refused to

pay, &c. he as Mayor justiﬁed; And it was adjudged no plea, for this Ordinance

is against the Statute of Magna Charta, cap. 29. Nullus liber homo imprison-

etur;

which Act hath been conﬁrmed above 30 times, and the Plaintiff ’s

assent cannot alter the Law in such Case; But it was resolved, that they might

have inﬂicted a reasonable penalty, but not imprisonment, which penalty they

might limit to be levied by distress, or by Action of Debt; and the Plaintiff

had Judgment.

The Case of Market-Overt.

(1596) Hilary Term, 38 Elizabeth I

In the Court of Quarter Sessions.

First Published in the Reports, volume 5, page 83b.

Ed.: This note case presents a holding of the judges of various courts that

stolen goods that are sold by a merchant whose trade is generally in the

1. [Ed.: No free man shall be imprisoned;]

Semayne’s Case 135

type of goods sold can create good title in a bona ﬁde purchaser, although

a sale made after the goods were hidden in a shop or traded in a warehouse

would not create good title in the seller. Coke, as Recorder of London,

testiﬁed to the city custom along these lines.

At the sessions of Newgate now last past, it was resolved by Popham, Chief

Justice of England, Anderson, Chief Justice of the Common Pleas, Sir Thomas

Egerton, Master of the Rolls, the Attorney General, and the Court, That if

Plate be stolen and sold openly in a Scriveners shop on the Market day (as

every day is a Market day in London except the Sunday) that this sale shall

not change the property, but the party shall have restitution; for a Scriveners

shop is not a Market overt for plate: for none will search there for such thing;

& sic de similibus, &c.

But if the sale had been openly in a Goldsmith’s shop

in London, so that any one that stood or passed by the shop might see it,

there it changeth the property. But if the sale be in the shop of a Goldsmith,

or behinde a hanging, or behinde a Cupboard upon which his Plate standeth,

so that one that stood or passed by the shop cannot see it, it shall not change

the property: So if the sale be not in shop, but in the Ware-house, or other

place of the house, it shall not change the property, for that is not in Market

overt, and none will search there for his goods. So every shop in London is

an open market for such things onely which by the trade of the owner are

put there to sale; And when I was Recorder of London, I certiﬁed the Custome

of London accordingly. Note, Reader, the reason of this case extends to all

open Markets in England.

Semayne’s Case.

(1604) Michaelmas Term, 2 James 1

In the Court of King’s Bench.

First Published in the Reports, volume 5, page 91a.

Ed.: Peter Semayne held a house in common with George Beriford, who

died, leaving his goods in the house. Semayne also held a statute-staple, a

type of bond securing a debt from Beriford. Semayne sought a writ to secure

1. [Ed.: and likewise concerning similar things, etc.]

Part Five of the Reports136

Beriford’s lands and goods in payment of the debt. He gave the writ to the

sheriffs of London, who began forfeiture proceedings against Richard

Gresham, who had succeeded to Beriford’s interests at the time of Beriford’s

death. The sheriffs offered to enter Gresham’s house to seize the goods,

which Gresham opposed. In this famous case, the King’s Bench described

the privileges of a house owner, who may defend it as his castle and greatest

refuge. He even has rights against entry and search by the King’s sheriffs,

who may break into a house to make an arrest or serve a warrant but who

might commit a trespass if they break in when they do not need. The

standards of entry by sheriffs are also discussed. Semayne lost because in

this non-felony case, Gresham was legally allowed to bar his own door.

In an Action on the Case by Peter Semayne, Plaintiff, and RichardGresham,

Defendant, the Case was such; The Plaintiff and one George Berisford were

Joynt-tenants of a house in Black Friars in London for years. George Berisford

acknowledged a Recognizance in the nature of a Statute-Staple to the Plaintiff,

and being possessed of divers goods in the said house, died, by which the

Defendant was possessed of the house by survivorship, in which the goods

continued and remained; The Plaintiff sued process of extent upon the Statute

to the Sheriffs of London; The Sheriffs returned the conusor dead, upon which

the Plaintiff had another Writ to extend all the lands which he had at the time

of the Statute acknowledged, or any time after, and all his goods which he

had at the day of his death; which Writ the Plaintiff delivered to the Sheriffs

of London, and told them that divers goods which were the said George Ber-

isford’s goods at the time of his death were in the said house: And thereupon

the Sheriffs by virtue of the said Writ, charged a Jury to make enquiry according

to the said writ, and the Sheriff and Jury accesserunt ad domum praedictam

ostio domus praedict’ aperto existen’ et bonis praedictis in praedicta domo tunc

existen’,

and they offered to enter the said house, to extend the | said goods

according to the said Writ; And the Defendant, praemissorum non ignarus,

intending to disturb the execution, ostio proed’ domus tunc aperto existen’, clau-

1. [Ed.: went to the aforesaid house, the door of the aforesaid house being open, and the aforesaid

goods then being in the aforesaid house,]

2. [Ed.: being not unaware of the foregoing,]

[91 b]

Semayne’s Case 137

debat contra Vicecom’ & jurator’ praed,’

by which they could not enter, and

extend the said goods, nor the Sheriff seize them, by which he lost the beneﬁt

and proﬁt of his Writ: And in this Case these points were resolved.

1. That the house of every one is to him as his Castle and Fortress as well

for defence against injury and violence, as for his repose; and although the

life of man is precious and favoured in law; so that although a man kill another

in his defence, or kill one per infortuntun’,

without any intent, yet it is felony,

and in such case he shall forfeit his goods and chattels, for the great regard

which the law hath of a mans life; But if theeves come to a mans house to

rob him, or murder, and the owner or his servants kill any of the theeves in

defence of himself and his house, it is no felony, and he shall lose nothing,

and therewith agreeth 3 Edw. 3. Coron. 303, & 305. & 26 Ass. pl. 23. So it is

holden in 21 Hen. 7. 39. every one may assemble his friends or neighbours

to defend his house against violence: But he cannot assemble them to goe

with him to the Market or elsewhere to keep him from violence: And the

reason of all the same is, because domus sua cuique est tutissimum refugium.

2. It was resolved, that when any house is recovered by any real Action, or

by Ejectione ﬁrmae,

the Sheriff may break the house to deliver possession to

the demandent or Plaintiff for the words of the Writ are, Habere facias seis-

inam,

or possessionem, &c.

and after Judgment it is not the house in right

and judgment of Law of the tenant or defendant.

3. In all Cases when the King is party, the Sheriff (if the doors be not open)

may break the parties house, either to arrest him, or to doe execution of the

Kings process, if otherwise he cannot enter. But before he break it, he ought

to signify the cause of his coming, and to make request to open doors; and

that appeareth by the Statute of Westm. 1. c. 17. (which is but an afﬁrmance

of the Common Law) as it hereafter appeareth, for the Law without default

in the owner abhorre destruction or breaking of any house which is for the

habitation and safety of a man, by which great damage and inconvenience

3. [Ed.: the door of the aforesaid house then being open, closed [the door] against the sheriff and jurors

aforesaid.]

4. [Ed.: by misfortune.]

5. [Ed.: everyone’s house is his safest refuge (“Every man’s home is his castle.”)]

6. [Ed.: Writ of ejectment, or removal from land.]

7. [Ed.: cause [the plaintiff] to have seisin.]

8. [Ed.: [cause the plaintiff to have] possession etc.]

Part Five of the Reports138

may follow to the party, when no default is in him; for perhaps he doth not

know of the process, which, if he had notice of it is presumed that he will

obey it, and that appeareth in 18 Edw. 2. Execut. 252 where it is said, That

the Kings Ofﬁcer who cometh to doe execution, &c. may open the doors

which are shut, and break them, if he may not have the keys; which proveth,

that he ought ﬁrst to demand them: 17 Edw. 3. 16. J. hurteth R. so as he is

in danger of death, J. ﬂieth, and thereupon Hue and Cry is made, J. getteth

into the house of T. those who pursue him, if the house be kept and defended

with force (which proveth that ﬁrst request ought | to be made) may lawfully

break the house of T. for it is at the Kings suit. 27 Ass. p. 66. The Kings Bailiff

may distrain for issues in a Sanctuary, 27 (28) Ass. p. 35. By force of a capias

upon indictment of Trespass the Sheriff may break his house to arrest the

party; but in such Case, if he break the house when he may enter without

breaking it, (that is, on request, or if he may open the door without breaking)

he is a trespasser, 41 Ass. 17. upon issue joyned on a traverse of an Ofﬁce in

Chancery, Venire facias

was awarded returnable in the Kings Bench, without

mentioning non omittas propter aliquam libertatem;

yet for as much as the

King is party, the Writ of itself is non omittas propter aliquam libertatem,

9 Edw. 4. 9. That for felony, or suspicion of felony, the Kings Ofﬁcer may

break the house to apprehend the felon, and that for two reasons: 1. For the

Commonwealth, for it is for the Commonwealth to apprehend felons. 2. In

every felony the King hath interest, and where the King hath interest there

the Writ is non omittas propter aliquam libertatem; and so the liberty or privilege

of the house doth not hold against the King.

4. In all Cases when the door is open the Sheriff may enter the house, and

do execution at the suit of any Subject, either of the body, or of the goods;

and so may the Lord in such case enter the house to distrain for his rent, or

service, 38 Hen. 6. 26. a. 8 Edw. 2. Distr. 21 & 33 Edw. 3. Avow. 256. the Lord

may distrain in the house, although he holds lands in which he may distrain.

Vide 29 As. 49. But the great question in this Case was, if by force of a Capias

or Fieri Facias

at the suit of the party the Sheriff after request made to open

9. [Ed.: Writ of capias; a predeccessor to the arrest warrant.]

10. [Ed.: Writ acting as a summons to appear.]

11. [Ed.: do not omit on account of any liberty.]

12. [Ed.: Writ of execution for collection of a debt (literally, “that you cause to be made.”).]

[92 a]

Semayne’s Case 139

the door, and denial made, may break the Defendants house to doe execution

if the door be not opened. And it was objected, That the Sheriff had well do

it for divers causes: 1. Because it is by process of Law; and it was said, That

it would be granted that a house is not a liberty, for if a Fieri fac. or a Capias

be awarded to the Sheriff at the suit of a common person, and that he make

a mandate to the Baily of a liberty who hath return of Writs, that nullum dedit

responsum

in this Case another Writ shall issue with non omittas propter

aliquam libertatem yet (it will be said on the other side) that he shall not break

the defendants house, as he shall doe of another liberty; As in the county of

Suffolk there are two liberties, one of S. Edmund Bury, and the other of S.

Etheldred of Ely, put case a Capias comes at the suit of A., to the Sheriff of

Suffolk to arrest the body of B. the Sheriff maketh a mandate to the Bailiff

of the liberty of S. Etheldred, who maketh no answer, in this Case the Plaintiff

shall have a Writ of non omittas by force at which he may arrest the Defendant

within the liberty of Bury, although that no fault be in him: 2. Admit it be

a liberty, the Defendant himself shall not take advantage of a liberty: As | if

the Bailiff of a liberty be Defendant in any Action, and process of Capias or

Fieri facis come to the Sheriff against him, the Sheriff shall execute the process

against him, for a liberty is always for the beneﬁt of a stranger to the Action.

3. For necessity the Sheriff shall break the Defendants house after a denial as

is aforesaid, for at the Common Law a man shall not have any execution for

debt, but only of the Defendants goods. Put case then the Defendant will

keep all his goods in his house, and so the Defendant by his own act shall

prevent not onely the Plaintiff of his just and true debt, but it shall be also

a great imputation to the Law, that there should be so great defect in it, that

in such Case the Plaintiff by such shift without any default in him should be

barred of his execution. And the Book in 18 Edw. 2. Execute 252. was cited

to prove it, where it is said That it is not lawful for any one to disturb the

execution of the Kings Ofﬁcer, who cometh to execute the Kings process; for

if a man might stand out in such manner, a man shall never have execution;

but there it appeareth (as hath been said) that there ought to be request made

before the Sheriff break the house. 4. It was said, that the Sheriff is an Ofﬁcer

of great authority, in whom the law reposeth great trust and conﬁdence, and

are of sufﬁciency to answer all wrongs which shall be done; And they have

13. [Ed.: gave no answer.]

[92 b]

Part Five of the Reports140

custodiam Comitatus,

and therefore it shall not be presumed that they will

abuse the house of any one by colour of doing their ofﬁce in execution of the

Kings Writs, against the duty of their ofﬁce, and their Oath also: But it was

resolved, That it is not lawful for the Sheriff (upon request made and denial)

at the suit of a common person, to break the Defendants house scil. to execute

any process at the suit of any Subject, for thereof would follow great incon-

venience that men in the night as in the day should have their houses (which

are their Castles) broken by force of which great damage and mischief may

follow, for by colour thereof, upon a feigned suit, the house of any man at

any time might be broken when the Defendant might be arrested elsewhere,

and so men should not be in safety or rest in quiet in their own houses: And

although the Sheriff be an Ofﬁcer of great authority, and trust, yet it appeareth

by experience, that the Kings Writs are executed by Bailiffs, persons of little

or no value: And it is not to be presumed, that all the substance a man hath

is in his house, nor that a man will lose his liberty, which is so inestimable,

if he hath sufﬁcient to satisfy his debt. And all the said Books, which prove,

that when the process toucheth the King, that the Sheriff may break the house,

implies that at the suit of the party, the house may not be broken, otherwise

the addition (at the suit of the King) should be vain and frivolous. And with

this Resolution agreeth the Book in 9 (13) E. 4. 9. and the express difference

there appeareth between the Case of felony, which (as hath been said) con-

cerneth the Commonwealth, and the suit | of any other subject, which is for

the particular interest of the party, as there it is said in 18 El. 4. 4. a. by Littleton

and all his Companions it is resolved, That the Sheriff cannot break the De-

fendants house by force of a Fieri Facias,

but he shall be a trespasser by the

breaking, and yet the execution which he then doth in the house is good. And

it was said, that the said book of 18 Edw. 2. was but a Nota, and not any

judicial Judgment, and it doth not appear at whose suit the Case is intended,

but it is an observation or collection (as it seemeth) of the Reporter. And if

it be of a Quo minus

or other Action in which the King is party, or is to

have beneﬁt, the Book is good Law.

5. It was resolved, That the house of any one is not a Castle or privilege

14. [Ed.: custody of the county.]

15. [Ed.: Writ to execute a judgment.]

16. [Ed.: Writ brought against delinquent debtor of the King (literally, “by which the less.”).]

[93 a]

Rooke’s Case 141

but for himself, and shall not extend to protect any person who ﬂieth to

his house, or the goods of any other which are brought and conveyed into

his house, to prevent a lawful execution, and to escape the ordinary process

of Law; for the privilege of his house extends onely to him and his family,

and to his own proper goods, or to those which are lawfully and without

fraud or covin there; And therefore in such Cases after denial upon request

made, the Sheriff may break the house; and that is proved by the Statute of

West. 1. c. 17. by which it is declared, That the Sheriff may break a house

or Castle to make Replevin, when the goods of another which he hath dis-

trained are by him conveyed to his house or Castle, to prevent the owner

to have a Replevin of his goods; which Act is but an afﬁrmance of the Com-

mon Law in such points. But it appeareth there, that before the Sheriff in

such Case break the house, that he is to require the goods to be delivered

to him; for the words of the Statute are, After that the castle shall be solemnly

demanded by the Sheriffs &c.

6. It was resolved, admitting that the Sheriff after denial made may break

the house, as the Plaintiffs Councel pretend he may, then it followeth that he

hath not done his duty, for it doth not appear, that he made any request to

open the door of the house. Also the Defendant, as this Case is, hath done that

which he may well doe by the Law, scil. to shut the door of his own house.

Lastly, the general allegation, praemissorum non ignarus,

was not sufﬁcient

in this Case where the notice of the premises is so material; but in this cause

it ought have been certainly, and directly alledged, for without notice of the

process of the Law, and of the coming of the Sheriff with the Jury to execute

it, the shutting of the door of his own house was lawful. And Judgment was

given against the Plaintiff.

Rooke’s Case.

(1598) Hilary Term, 40 Elizabeth I

In the Court of Common Pleas.

First Published in the Reports, volume 5, page 99b.

Ed.: The Commissioners of Sewers assessed Carter a fee of 8s for every acre

he had adjoining the River Thames, to pay for maintaining the bank from

17. [Ed.: being not unaware of the foregoing.]

Part Five of the Reports142

collapsing and causing ﬂoods. They assessed him because there was an

ancient prescriptive obligation of the holder of his lands to maintain the

bank, but there were many landowners whose lands would be ﬂooded, from

whom the commissioners did not assess any fees at all. Coke asserts that

Justice Walmsley in the Common Pleas held even though the prescription

existed, the statute required that the commissioners should have assessed

the costs to everyone who beneﬁtted from the ﬂood prevention, not just

the bank-owner. This case is one of the earliest examples of judicial review

of an administrative act and often thought to be a foundation of modern

administrative law. See also Case of the Isle of Ely, p. 378.

In Replevin in the Common Pleas by Rooke against Withers; The Defen-

dant justiﬁed the taking by authority of Commission of Sewers directed to

B. S. and others; to survey all walls (prout

in the Commission) in the River

of Thames, in the Country of Kent and Essex, because that one Carter, &c.

was assessed to every acre for repairing of a Bank, &c. for the not-paiment

of which he took the distress; To which the Plaintiff replied, Of his own wrong,

without such cause. And the Jurors found the Commission and the Statutes

of 6 Hen. 6. cap. 5. & 23 Hen. 8. cap. 5. And that the Commissioners did

impanel a Jury to inquire of defaults, who presented that 7 acres of meadow

in which the distress was taken, was next adjoining to the River; and that the

bank of the River was adjoining to the said 7 acres, for which they taxed Carter

to pay 8s. for every acre: And the Jury further found, that the occupiers of

the said 7 acres have used always to repair the said bank, sometimes voluntarily,

and sometimes by presentment. And further that divers other persons had

lands to the quantity of 800 acres within the same level, and subject to drown-

ing, if the said bank be not repaired: And if this assessment of the owner of

the land next adjoining onely, without any assessment of the other who had

lands subject to the like danger of drowning, was lawful or not, was the Ques-

tion. And in this Case three Points were resolved.

1. That the ﬁnding of the repairing, &c. by the occupiers of the said 7 acres

was not material, because the occupiers might be tenants at will, or other

1. [Ed.: as.]

Rooke’s Case 143

particular tenants, who by their Act cannot binde him who hath the inher-

itance.

2. That the Commissioners ought to tax all who are in danger of being

endamaged by the not repairing equally, and not he who has the land next

adjoining to the River onely; for the statute of 6 Hen. 6. cap. 5. in which |

the Commission of Sewers is formed and speciﬁed, hath precise words in the

same Commission, That no person of any estate or condition shall be spared.

Ita quod aliquibus tenentibus terrarum sive tenementorum, &c. diviti vel pauperi,

vel alteri cujuscunque conditionis, statuˆs, vel dignitat’ fuerit, qui defensionem,

commodum, & salvationem per praed’ Wallias, fossata, guttera, pontes, calceta,

& gurgites, &c. habent vel habere poterint nullatenus parcatur in hac parte.

And

if the Law shall be otherwise, inconvenience may follow, for it may be that

the rage and force of the water shall be so great, that the value of the land

adjoining will not serve to make the banks, And therefore the Statutes will

have all which are in danger and who are to take commodity by the making

of the banks, to be contributory; for qui sentit commodum sentire debet & onus:

and the said Statutes require equality, which well agreeth with the rule of

Equity: see the Case of Bankrupts in the second Part of my Reports. Et vide

35 Hen. 8. Br. tit. Testam. 19. 4 Edw. 3. Assise 178. 11 Hen. 7. 12. 29 Edw. 3.

39. & Sir William Herbert’s Case in the third Part of my Reports; Cases of

equality grounded upon reason and equity, Ipsae etenem leges cupiunt ut jure

regantur;

And notwithstanding the said words of the said Commission give

authority to the Commissioners to do according to their discretions, yet their

proceedings ought to be limited and bound with the rule of reason and Law.

For discretion is a science or understanding to discern between falsity and

truth, between right and wrong, and between shadows and substance, between

equity and colourable glosses and pretences, and not to doe according to their

wills and private affections; for as one saith, Talis discretio discretionem con-

fundit.

And Walmesley, Justice held, and it was not denied by any, That if

the owner of the land were bound by prescription to repair the River bank,

2. [Ed.: So that no tenants of lands or tenements etc., rich or poor, nor any persons, of whatever

condition, estate, or dignity, who have or could have any protection, beneﬁt and safeguard by the aforesaid

walls, ditches, gutters, bridges, causeways and weirs, shall be in any way spared in this behalf.]

3. [Ed.: he who takes the beneﬁt should also bear the burden:]

4. [Ed.: And the laws desire that they be ruled by right;]

5. [Ed.: Such a discretion confounds discretion.]

[100 a]

Part Five of the Reports144

that yet upon such Commission awarded, the Commissioners ought not to

charge him onely, but ought to taxe all who had land in danger: And to this

purpose the Statutes were made; for otherwise it might be that all the land

shall be drowned before that one person onely could repair the bank, and that

appeareth by the words of the Statutes: for which cause Judgment was given

for the Plaintiff.

Pinnel’s Case.

(1602) Trinity Term, 44 Elizabeth I

In the Court of Common Pleas.

First Published in the Reports, volume 5, page 117a.*

Ed.: Cole owed £8 10s to Pinnel, and paid £5 2s. 2d. Cole claimed Pinnel

accepted the lesser amount in satisfaction of the whole debt. Pinnel sued.

The court held that, although a debtor can choose the terms of repayment,

and the debt may be satisﬁed by something of value like a horse, a payment

for a lesser amount cannot satisfy the debt.

Pinnel brought an Action of Debt upon an Obligation against Cole of

16 l. for the paiment of 8 l. 10 s. the 11 day of Nov. 1600. The Defendant

pleaded, that he at the instance of the Plaintiff, before the said day, scil. 1 Octob.

44. apud West solvit querenti he paid to the Plaintiff, 5l. 2s. 2d. quas quidem

5l. 2s. 2d.,

the Plaintiff accepted in full satisfaction of the 8 l. 10 s. And it was

resolved by the whole Court, That paiment of a lesser summe in satisfaction

of a greater, cannot be any satisfaction for the whole, because it appeareth to

the Judges that by no possibility, a lesser summe can be a satisfaction to the

Plaintiff for a greater summe: But the gift of a Horse, Hawk, &c. in satisfaction

is good. For it shall be intended that a Horse, Hawk, &c. shall be more ben-

eﬁcial to the Plaintiff than the money in respect of some circumstance, or

otherwise the Plaintiff would not have accepted of it in satisfaction. But when

the whole summe is due, by no intendment the acceptance of parcel can be

a satisfaction to the Plaintiff: But in the Case at Bar it was resolved, that the

paiment and acceptance of parcel before the day in satisfaction of the whole,

*The initial pleadings in this case are recorded at 44 Eliz. Rot. 501.

1. [Ed.: which is precisely 5L. 2s. 2d.]

The Case de Libellis Famosis 145

shall be a good satisfaction in regard of circumstance of time; for peradventure

parcel of it before the day, shall be more beneﬁcial to him than the whole at

the day, and the value of the satisfaction is not material: So if I be bounden

in 20 l. to pay you 10 l. at Westminster and you request me to pay you 5 l.

at the day at York, and you will accept it in full satisfaction of the whole 10 l.

it is a good satisfaction | for the whole: for the expenses to pay it at York, is

sufﬁcient satisfaction: But in this Case the Plaintiff had Judgment for the

insufﬁcient pleading; for he doth not plead that he had payed the 5 l. 2 s. 2 d.

in full satisfaction (as by the Law he ought) but pleaded the paiment of part

generally; and that the Plaintiff had accepted of it in full satisfaction. And

always the manner of tender and of the paiment, shall be directed by him

who made the tender or paiment, and not by him who accepteth it. And for

this cause Judgment was given for the Plaintiff.

See Reader 36 Hen. 6. Barre 37. in debt upon an Obligation of 10 l. the

defendant pleaded, that one F. was bound by the said deed with him, and

each in the whole, and that the Plaintiff had made an acquittance to F. bearing

date before the obligation, and delivered after, by which acquittance he did

acknowledge himself to be paid 20 s. in full satisfaction of the 10 l. And it

was adjudged a good barre; for if a man acknowledge himself to be satisﬁed

by deed, it is a good barre, without any thing received. Vide 12 Rich. 2. Barre

243. 26 Hen. 6. Barre 37. 10 Hen. 7, &c.

| The Case de Libellis Famosis.

(1605) Easter Term, 3 James I

In the Court of Star Chamber.

First Published in the Reports, volume 5, page 125a.

Ed.: Coke, as Attorney General, prosecuted in the Star Chamber the pub-

lisher of poems making fun of two Archbishops of Canterbury. This opinion

delineates the standards for a libel. A person may libel another person by

harming their reputation, even by saying things that are true, whether the

person is a private or public ﬁgure, and whether the person is dead or alive.

A libeller may be punished by ﬁne, imprisonment, or the amputation of

the ears. See also the Lord Cromwell’s case, at p. 105 and Lamb’s case, p. 313.

[117 b]

[125 a]

Part Five of the Reports146

In the Case of L. P. in the Starre-chamber this Term, against whom the

Attorney General proceeded ore tenus

on his own confession, for composing

and publishing an infamous Libel in verse, by which John Archbishop of Can-

terbury (who was a Prelate of singular piety, gravity, and learning, now dead)

by circumlocutions and descriptions, and not in express terms; and Richard

Bishop of Canterbury who now is, were traduced and scandalized: In which

these Points were resolved:

1. That every Libel which is called famosus Libellus, seu infamatoriascriptura,

is made either against a private man, or against a Magistrate or publick person.

If it be against a private man it deserveth a severe punishment, for although

the Libel be made against one, yet it inciteth all those of the same family,

kindred, or society to revenge, and so may be the cause of per consequens to

quarrels and breach of the peace, and may be the cause of shedding of blood,

and of great inconvenience: if it be against a Magistrate, or other public person,

it is a greater offence; for it concerneth not onely the breach of the peace, but

also the scandal of government; for what greater scandal of government can

there be than to have corrupt or wicked Magistrates to be appointed and

constituted by the King to govern his Subjects under him? And greater im-

putation to the State cannot be, than to suffer such corrupt men to sit in the

sacred seat of Justice, or to have any medling in or concerning the admin-

istration of Justice.

2. Although the private man or Magistrate be dead at the time of the making

of the Libel, yet it is punishable for in the one Case it stirreth up others of

the same family, blood, or society to revenge, and to breach the peace and in

the other the Libeller doth traduce and slander the State and government,

which dieth not.

3. A Libeller (who is called famosus defamator) shall be punished either by

indictment at the Common Law, or by Bill, if he deny it, or ore tenus upon

his confession | in the Starre-chamber, and according to the quality of the

offence he may be punished by ﬁne or imprisonment, and if the Case be

exorbitant, by Pillory and loss of his Ears.

4. It is not material whether the Libel be true, or whether the party against

1. [Ed.: Literally, “by word of mouth,” a case heard ore tenus despite a confession determines liability,

considering the available defenses as if they had been raised in demurrer.]

2. [Ed.: Scandalous libel or scandalous writing.]

[125 b]

The Case de Libellis Famosis 147

whom the Libel is made, be of good or ill fame; for in a setled state of Gov-

ernment the party grieved ought to complain for every injury done him in

an ordinary course of Law, and not by any means to revenge himself, either

by the odious course of libelling, or otherwise: He who killeth a man with

his sword in ﬁght is a great offender, but he is a greater offender who poisoneth

another, for in the one case he who is the party assaulted may defend himself,

and knoweth his adversary, and may endeavour to prevent it: But poisoning

may be done so secret that none can defend himself against it; for which cause

the offence is the more grievous, because the offender cannot easily be known;

And of such nature is libelling, it is secret, and robbeth a man of his good

name, which ought to be more precious to him than his life, & difﬁcillimum

est invenire authorem infamatoriae scripturae;

because that when the offender

is known, he ought to be severely punished. Every infamous libel, aut est in

scriptis, aut sine scriptis;

a scandalous libel in scriptis

when an Epigram,

Rhime, or other writing is composed or published to the scandal or contumely

of another, by which his fame and dignity may be prejudiced. And such libel

may be published, 1. Verbis aut cantilenis:

As where it is maliciously repeated

or sung in the presence of others. 2. Traditione,

when the libel or copy of it

is delivered over to scandalize the party. Famosus libellus sine scriptis

may be,

1. Picturis, as to paint the party in any shameful and ignominious manner. 2.

Signis, as to ﬁx a Gallows, or other reproachful and ignominious signs at the

parties door or elsewhere. And it was resolved, Mich. 43 & 44 Eliz. in the

Starre-chamber in Halliwood’s Case, That if anyone ﬁnds a Libel (and would

keep himself out of danger), if it be composed against a private man, the ﬁnder

either may burn it, or presently deliver it to a Magistrate: But if it concerns

a Magistrate, or other public person, the ﬁnder of it ought presently to deliver

it to a Magistrate, to the Intent that by examination and industry, the Author

may be found out and punished. And libelling and calumniation is an offence

against the Law of God. For Leviticus 17, Non facias calumniam proximo. Exod.

22 ver. 28, Principi populi tui non maledices. Ecclesiastes 10, In cogitatione | tua

3. [Ed.: and has troubled himself and comes across the publisher of inﬂammatory writings.]

4. [Ed.: either is in writing, or without writing.]

5. [Ed.: in writing.]

6. [Ed.: Words or songs.]

7. [Ed.: Communication (literally “handing over” or “passing on”).]

8. [Ed.: A scandalous libel without writing.]

[126 a]

Part Five of the Reports148

ne detrahas Regi, nec in secreto cubiculi tui diviti maledices, quia volucres coeli

portabunt vocem tuam, & qui habet pennas annuntiabit sententiam. Psal. 69.

13, Adversus me loquebantur qui sedebant in porta, & in me psallebant qui bi-

bebant vinum. Job. 30. ver. 7. & 8, Filii stultorum & ignobilium, & in terra

penitus non parentes, nunc in eorum canticum versus sum, & factus sum eis in

proverbium.

And it was observed, that Job, who was the Mirrour of patience,

as appeareth by his words, became quodammodo

impatient when Libels were

made of him; And therefore it appeareth of what force they are to provoke

impatience and contention. And there are certain marks by which a Libeller

may be known: Quia tria sequuntur defamatorem famosum:

1. Pravitatis in-

crementum, increase of lewdness: 2. Bursae decrementum, decrease of money,

and beggary: 3. Conscientiae detrimentum, shipwreck of conscience.

9. [Ed.: Thou shalt not defraud thy neighbor (Lev. 17). Thou shalt not curse the leader of thy people

(Exod. 22:8). Curse not the King, No, not in thy thought and curse not the rich in thy bed chamber: for

a bird of the air shall carry the voice, and that which hath wings shall tell the matter (Eccles. 10). They

that sit at the gate speak against me, and I was the song of drunkards (Psal. 69:13). They were the children

of fools, Yea, children of base men: they were viler than the earth. And now I am their song, I am their

byword (Job 30:7,8).]

10. [Ed.: in a manner.]

11. [Ed.: because three things follow from scandalous libel:]

Part Six of the Reports

The Sixth Part of Coke’s Reports was published in 1607. It was originally

entitled Le Size Part Des Reportes Del Edw. Coke Chivalier, Chief Justice del

Common Bank. Des Divers Resolutions & Judgments dones sur solemne Argu-

ments, & avec grand deliberations & conferences des tres-reverend Judges & Sages

de la Ley, de Cases en Ley queux ne sueront unques resolve ou adjudges par devant:

Et les Raisons & Causes des dits Resolutions & Judgments. Pulblies en le cinq’ An

de treshuat & tres-illustre Jacques Roy Deengleterre, France & Ireland, & de Escosse

le 41, le Fountain de tout Pietie & Justice, & la vie de la Ley. In English, The

Sixth Part of the Reports of Sr. Edward Coke, Knight, Lord Chief Justice of Com-

mon Pleas, of divers Resolutions and Judgments given with great deliberation, by

in matters of great importance & consequence by the reverend Judges and Sages

of the Law; together with the reasons and causes of their Resolutions and Judge-

ments. Published in the ﬁfth yeare of the most beloved and most illustrious King

James, of England, France and Ireland and of Scotland the 41, the Fountain of

all piety and Justice, and the life of the Law. The cases in this part cover a wide

range of topics without quite the organization of the earlier volumes. Part Six

includes cases on the maintenance of wards (infants or others under the pro-

tection of the king), feudal obligations, the rights of nobility, the powers of

judges, procedural bars to repeat litigation, the interests in land to protect

from the waste of it by others, as well as issues regarding estates and future

interests.

Epigrams from the title page:

Neminem oportet esse Legibus Sapientiorem.

Non aliunde ﬂoret Resp. quam si Legum vigeat Authoritas.

1. [Ed.: It is necessary that no one is wiser than the law. Nowhere does a state ﬂourish unless the authority

of the law thrives.]

Part Six of the Reports150

(Preface)

To The Reader.

Since the Publishing of the Fifth Part of my Reports, a good Student of the

Common Laws desired to be satisﬁed in one special Point in my Epistle to

the second Part of my Reports,

where I afﬁrmed, That if the ancient Laws of

this noble Island, had not excelled all others (speaking of humane) it could not

be but some of the several Conquerors and Governors thereof, that is to say, the

Romans, Saxons, Danes or Normans; and especially the Romans, (who as they

justly may) do boast of their Civil Laws, would (as every of them might) have

altered or changed the same. And (saith he) some of another Profession are not

perswaded, that the Common Laws of England are of so great Antiquity, as

there superlatively is spoken. True it is, that the said Period was mine own

Opinion, but not out of mine own Head; for it is the Judgment of that most

Reverend and Honourable Judge, Sir John Fortescue Knight, Chief Justice of

England in the Reign of King Henry the Sixth; who (besides his profound

knowledge in the Law, being also an excellent Antiquary) in his Book intituled,

De Politica administratione & Legibus Civilibus ﬂorentissimiRegni Angliae Com-

mentarius,

cap. 17. saith thus:

The Realm of England was ﬁrst inhabited of

the Britans, next after them the Romans had the Rule of the Land, and then

again the Britans possessed it; after whom the Saxons invaded it, who changing

the Name thereof, did for Britain, call it England: after them, for a certain time,

the Danes had the Dominion of the Realm, and then Saxons again, but last of

all the Normans subdued it, whose Descent continueth in the Government of the

Kingdom at this present. And in all the times of these several Nations, and of their

Kings, this Realm was still ruled with the self same Customs that it is now governed

withal; which if they had not been right good, some of these Kings, moved either

with Justice, or with Reason or Affection, would have changed them, or else al-

together abolish them, and especially the Romans, who did judge all the rest of

the World by their own Laws. Likewise would other of the aforesaid Kings have

2. Praef. i. Co. Rep.

3. [Ed.: Commentary on the political government and civil laws of the most ﬂourishing realm of

England.]

4. Praef. 8 Co. Rep.

Preface 151

done, which by the Sword only possessing the Realm of England, might by the

like Power and Authority have extinguished the Laws thereof. And touching the

Antiquity of the same, neither are the Roman Civil Laws, by so long continuance

of ancient times conﬁrmed; nor yet the Laws of the Venetians, which above all

other are reported to be of most Antiquity, forasmuch as their Island in the be-

ginning of the Britans was not then inhabited, as Rome then also unbuilded,

neither the Laws of any Nation of the World which worshippeth God, are of so

old and ancient years; whereof the contrary is not to be said nor thought, but that

the English Customs are very good, yea of all other the very best.

And albeit, I had so good a Warrant for the said Assertion (for every Man

that writes ought to be so careful of setting down truth, as if the Credit of

his whole Work consisted upon the certainty of every particular period) yet

was I right glad to hear of any exception, to the end that such as were not

perswaded, might either be rightly instructed, and the Truth conﬁrmed; or

that I might upon true grounds be converted and the Error reformed: I desired

that they would propose some Particulars, as many as they would (for Gen-

eralities never bring any thing to a conclusion.) At length (for this was re-

membred when I had almost forgotten it) their great desire was to see some

Proofs, that the Common Law in these four particular Cases was before the

Conquest, as now it is.

ن First, That the Queen, being Wife to a King Regnant, was a person sole

by the Common Law to sue and be sued, to give and take, &c. solely without

the King.

ن Secondly, That a Man seised of Lands in Fee-simple, shall forfeit his Lands

and Goods by Attainder of Felony by Outlawry, and that thereby his Heirs

should be disinherited.

ن Thirdly, That a Woman being attainted of Petty Treason, should be burnt.

ن Fourthly, Whether the ancient Laws of England did permit any Appeal

to Rome in Causes Spiritual or Ecclesiastical.

I had no sooner seen these Questions, but instantly I found direct and

demonstrative Answers to the same. For the ﬁrst, behold an ancient Charter

made long before the Conquest, which followeth in these Words.

5. Co. Lit. 133. a. Seld. Tit. of Honor 86. 20 E. 3. Fitz. Nonhability 9. 4 Co. 23.b. 9 Co. 47.a. Co.Lit.3.a.

Plowden 231. a. Seld. Epinomis 11.

Part Six of the Reports152

Our Lord Jesus Christ reigning for ever. I Aethelswith

Queen of the Mercians

by Gods Grant, with the Consent of my Ealdermen, will give by Grant to Cuth-

wolph my most faithful Servitor, a certain piece of Land, being part of my peculiar

power (that is to say) a piece of Land of ﬁfteen Manses, in a place which is called

Laking, for his Obedience, and payable Mony in this manner, that is to say, a

thousand ﬁve hundred Shillings of Silver and Gold, or ﬁfteen hundred Sicles, that

he may have, possess and enjoy at his pleasure, as long as he liveth; and after his

end and limit of his days, he may leave it to whomsoever he will, for everlasting

Power and perpetual Inheritance. And this my Donation is covenanted in the year

of our Lords Incarnation DCCCLXVIII. the ﬁrst Indiction. And we do charge

all Secular Powers, in the Name of God the Father, the Son and the Holy Ghost,

to observe the foresaid inviolate. These Witnesses subscribing and consenting there-

unto, whose Names here recited are under-written. I Ethelred King of the West-

Saxons have consented and subscribed. I Burghred King of the Mercians have

consented and subscribed. I Aethelswitth Queen, have consented and subscribed,

&c.

I have here set down another Charter of Record made also long before the

Conquest, de verbo in verbum,

for a direct Answer to the second.

I Ethelred by Gods Providence Emperor of all Albion, do grant to my wel-

beloved Servitor, whose Nobility of Parentage hath given Ulfric for Name, for the

faithful Service wherewith he hath courteously served me, a certain parcel of Land,

that is to say, two Manses and an half, in a place where the Inhabitants call Aet

Dunmalton, in perpetual Inheritance, that he may well enjoy and prosperously

possess the same, as long as he is seen to run the race of this Life with vital breath,

and may leave the same to what Successor he please, after his departure from this

transitory Life. Let the said Land situated in a certain Common be free from all

wordly impediment, with all which are known to belong to the said place, as well

in great matters as in small, in Fields, Pastures, Meadows, Woods; Expedition,

building of Bridge and Castle being excepted. Such as shall diminish and violate

this my Gift (which I wish may be far from the Minds of all faithful) let them

have their part with them, of whom it shall be resounded, Depart from me ye

6. Seld. Epinomis 11. This Ethelswith was Wife to Burgh, King of the Marches, and it appeareth that

King Burgh was alive at this time, for he was a Witness to the Grant; and this Law continueth so to this

day.

7. [Ed.: word for word.]

Preface 153

cursed into everlasting ﬁre, which is prepared for Sathan and his Angels, unless

they do make amends by lawful satisfaction, obtaining Pardon by due Penance

towards God. Whereas that which Mans Memory doth overpass, the diligent search

of writing doth preserve. This is to be notiﬁed to the Readers, that the said Land

came to the disposition of my right, by the crime of a certain Mans unspeakable

Presumption, wherewith boldly and feloniously he hath not abhorred to incumber

himself, which Man his Parents named Ethelsig, albeit he hath discredited his

Name by a foul fault. And by me (as is aforesaid) the said Land is bestowed upon

my reverend Servitor. The manner of whose fault we thought good to note here

in English.

This was the Land forfeited at Dunmalton,

that Ethelsig forfeited to King

Ethelreds Hands. It was so then, that he stole Ethelwins Swine, who was Son

to Ethelmere Ealderman. Then his Man did ride to him, and took the things

stoln out of Ethelsigs House; but he burst out to the Woods, and Men outlawed

him, and Men brought to King Ethelred his Lands and his Goods. Then gave

he that Land to his servant Hawes for a perpetual Inheritance. And Wulfric,

Son to Wulfrun, after had it of him in exchange for other Lands that pleased

him better; and this was with the Kings leave, and with the Testimony of his

Wise Men.

This Donation was made in the year from the Incarnation of our Lord

DCCCCXCV the eighth Indiction, in the seventeenth year of the said King. This

Charter was witten with the consent of them whose Names are here underwritten.

I Ethelred King of Englishmen have constantly consented and ratiﬁed this Do-

nation under the Sign of the Holy Cross. I Alfrick by Gods Grace elected unto

the Archbishoprick of Canterbury, have established this Gift with the Sign of the

Cross, &c.

Touching the Third,

Caesar in his Commentaries, Lib. 6. p. 68. (who wrote

before the Incarnation of Christ above 1600 years past) afﬁrmeth, That if the

Wife be suspected of the death of her Husband, Es si compertum est, igni, &c.

interﬁciunt:

that is, and if she be found guilty of the death of her Husband,

which is Petty-Treason, the Wife is burnt to death, as she is (in that Case) at

this day.

8. Seld. Epinomis 11.

9. See in the Preface to the third Part of my Reports out of Caesars Com. Disciplina Druydu¯ in Britannia

reperta, atque in Gallia¯ translata, &c. Seld. Janus Angl. 17.

10. [Ed.: And if it is proved, she shall be put to death by ﬁre, etc.]

Part Six of the Reports154

For the last, by an Act of Parliament holden in the tenth year of King Henry

the Second, which was in Anno Domini 1164. it is enacted as followeth.

As concerning Appellations if any shall arise from the Archdeacon, they must

proceed to the Bishop, from the Bishop to the Archbishop;

and if the Archbishop

do fail in doing Justice, it must lastly come to the King, that by his Precept the

Controversie may be ended in the Archbishops Court, so that there ought not to

be any proceeding farther without assent of the King. And that this amongst

many other might not tast of Innovation, the Record saith, This Recognition

or Record was made of a certain part of the Customs and Liberties of the Predecessors

of the King, to wit, of King Henry his Grandfather, and of other Kings, which

ought to be observed in the Kingdom, and held of all for the Dissentions and

Discords often arising between the Clergy and our Lord the Kings Justices, and

the Peers of the Realm; and all the Archbishops, Bishops, Abbots, Priors, Clergy,

with the Earls, Barons, and all the Nobles, &c. have sworn and assuredly promised

in the Word of Truth, with one consent to keep and observe the said Recognition

toward the King and his Heirs in good sooth without evil meaning for ever.

But herein I perswaded my self, that every Man that had advisedly and with

an equal mind read Caudries Case, published in my last Reports, would there-

with in this point have been satisﬁed. And I must freely acknowledge, that I

never expected, that any Divine would have attempted to have made such an

Answer to that Case, as lately hath been published for two causes. First, for

that it is (exceeding all bounds of Truth and Charity) full of Maledictions and

Calumniations, nothing pertinent to the state of the Question. It becometh

not Divines to be of ﬁery and Salamandrine Spirits; neither are bitter Invectives

fomed out of an hot mouth, ever fretting it self upon the Bit of Discontentment

(the Seeds of Hatred, and means of making Controverversies immortal) be-

seeming the Lips of any man of that profession. Sure I am, that neither Quick-

sands having no stedfast ground, nor Quicksets of Brambles or Briers, are ﬁt

either for foundations, or for fences or defences, especially for him that usurp-

eth the sublime and broad spreading Name of The Catholick Divine.

that will make any Answer out of Conscience and Charity, to persuade the

adverse Party, should repeat his Authorities, his Arguments, his Reasons and

Categorically and Christianly answer the Matter ad idem,

without any In-

11. Seld. Janus Angl. 72. Rog. Hovenden f. 303.

12. Father Parsons the Jesuit.

13. [Ed.: to the same effect.]

Preface 155

vective against the person, whom his end is (or should be) to convert to his

Opinion. Young Sophisters are wont to rail (and by that means keep themselves

from a Nonplus) when they are not able to answer the Argument inforced

against them. Secondly, for that (as I published in my Epistle to the Reader)

I dealt only with the Municipal Laws of England, as a subject proper to my

Profession.

Expect not from me (good Reader) any reply at all, for I will not answer

unto his Invectives, and I cannot make any reply at all to any part of his

Discourse. True it is, that Calumniations be great Motives of Revenge, and

consequently of breach of Charity, and of Gods Commandment: And there-

fore David prayed, Redime me a calumniis hominum, ut custodiam mandata

tua.

But it is far unbeseeming a man of my Vocation, Convitium convitio

regerere:

For that were Lutum luto purgare.

And God hath left a president

of a Judge, (who also was the ﬁrst Reporter of Law) that he

was Mitissimus

super omnes homines qui morantur in terra;

whose Example all Judges (though

they be provoked every day) ought as much as they can to imitate and follow.

This only will I say in this Cause, to him and of him, Ille didicit maledicere,

& ego maledicta contemnere.

The cause that I cannot reply is, for that I have

only reported the Text, and as it were the very Voice of the ancient Laws of

this Realm proved and approved in all successions of Ages, as well by universal

consent in Parliaments, as by the Judgments and Resolutions of the Reverend

Judges and Sages of the Common Laws, in their Judicial proceeding, which

they gave upon their Oaths and Consciences.

I quoted the Year, the Leaf, the Chapter and other certain References for

the ready ﬁnding thereof. And I could have added more, if the Report of that

Case (being very long, as it is) should not have been drawn to an extraordinary

Prolixity. But when I looked into the Book, ever expecting some Answer to

the Matter; in the end I found the Author utterly ignorant (but exceeding

bold, as commonly those qualities concur) in the Laws of the Realm, the only

subject of the Matter in hand, but could not ﬁnd in all the Book any Authority

14. [Ed.: Rescue me from the calumnies of men, that I may keep thy commands.]

15. [Ed.: to make a reproach with a reproach.]

16. [Ed.: to clean dirt with dirt.]

17. Moses. because it is for the defence of the realm.

18. [Ed.: The mildest above all men who dwelt on the earth.]

19. [Ed.: He denied speaking ill, and I condemn ill speaking.]

Part Six of the Reports156

out of the Books of the Common Laws of this Realm, Acts of Parliament, or

any legal and judicial Records quoted or cited by him for the Maintenance

of any of his Opinions or Conceits: Whereupon (as in Justice I ought) I had

Judgment given for me; upon a Nihil dicit,

and therefore cannot make any

replication. For his Divinity and Histories cited by him, only published in

the said Book Ad faciendum populum,

(but how truly and sincerely his own

Conscience knowing, he thought it best for the salving of his Credit, to conceal

his Name) I will not answer, for then, I should follow him in his Error, and

depart from the state of the question, whose only subject is the Municipal

Laws of this Realm.

I have (good Reader) brought this sixth Work to a Conclusion, and pub-

lished it for thy private Instruction, for the publick good and quiet of many,

and for preventing of Danger, the Daughter of Error. I confess that Englishmens

Actions have been renowned in the Ear of the whole World, but far better

done than they have been told, for want of a good History; and their Laws

most excellent, but far better than they seem to any Eye (unless he can look

in the visial line) for want of good Stile, and fair falling Sentences (which

never were at so high a price as now they bear) but wise Men will embrace

the secrets of Skill, though they be written with an evil Pen, and will not

refuse precious Jewels, though they be brought in a plain and homely recep-

tacle.

The reporting of particular Cases or Examples is the most perspicuous

course of teaching, the right rule and reason of the Law; for so did Almighty

God himself, when he delivered by Moses his Judicial Laws, Exemplis docuit

pro Legibus,

as it appeareth in Exodus, Leviticus, Numeri and Deuteronomi.

And the Glossographers, to illustrate the Rule of the Civil Law, do often reduce

the Rule into a Case, for the more lively expressing and true application of

the same. In reading these and other of my Reports, I desire the Reader, that

he would not read (and as it were swallow) too much at once; for greedy

Appetites are not of the best digestion; the whole is to be attained to by parts,

and Nature (which is the best Guide) maketh no leap, Natura non facit sal-

tum.

And true it is that Seneca saith, (as in another place I have said) Quo

20. [Ed.: he says nothing, [a form of confession of the action].]

21. [Ed.: to make popular,]

22. [Ed.: He taught the laws with examples]

23. [Ed.: Nature does not make a leap.]

Jentleman’s Case 157

plus recipit animus, hoc se magis laxat.

The Mind, the more it suddenly re-

ceiveth, the more it loseth, and freeth it self. A cursory and tumultuary reading

doth ever make a confused Memory, a troubled Utterance and an uncertain

Judgment. If these or any other of my Works may in any sort (by the goodness

of Almighty God, who hath enabled me hereunto) tend to some discharge of

that great Obligation of duty wherein I am bound to my Profession, and give

directions for the establishment of Inheritances, Possessions and Interests in

peace and quietness, I shall reap some fruits of the Tree of Life; for my desire

shall be accomplished, and I shall receive sufﬁcient Recompence for all my

Labours; for their true and ﬁnal end shall be effected.

Accipe, quo semper ﬁnitur Epistola verbo,

Et vigeant Jura, & (Lector amice) Vale.

Jentleman’s Case.

(Between Crosby and Jentleman)

(1583) Easter Term, 25 Elizabeth I

In the Court of King’s Bench.

First Published in the Reports, volume 6, page 11a.

Ed.: In this opinion, which foreshadows many of Coke’s arguments with

James I, the judges of the King’s Bench consider when various ofﬁcials are

Judges, who are appointed by writ, by the king, or by statute, to hear certain

causes of action, or who are suiters seeking a writ of right, to which they

are automatically entitled, or a writ of justicies, which require a sheriff to

hear a dispute over a debt. The King cannot abolish courts of the common

law but may create new courts, and appoint Judges to courts, but once he

has made the appointment, the judge ought to determine matters in the

court.

It is to be observed, that the words of a Writ of Right directed to the Lord

of a Mannor are, Pracipimus tibi, quod plenum rectum teneas A de B de uno

24. [Ed.: the more the mind takes in [suddenly], the more it loses it.]

25. [Ed.: Accept—the word with which a letter always ends—and let the laws ﬂourish, and (dear reader)

Farewell.]

Part Six of the Reports158

messuagio, &c.

And the words of a Writ of Justicies are, Rex vic. S. Salutem.

Praec. tibi quod Justicies A. quod juste & sine dilatione reddat

B 20l. &c. And

so of other Writs which are Vicountiel. So the Writ of Droit close is directed

to the Lord of the Mannor; Pracipimus tibi quod secundum consuetudinem

manerii, &c. plenum rectum teneas, &c. de uno messuagio.

And the Writs are

in the same words when they are directed to the Bailifs of a Mannor. And

upon the words aforesaid it was objected, that in such cases the Lord, or the

Baylifs, or the Sherif, are Judges, for they have authority by the Kings Writ,

and the Writs are directed to them, and not to the suters; and therefore it was

said, That the difference is, when the plea is in ancient | Demesne, Court

Baron, or County Court without writ, there the suters are Judges; but when

the writ is directed to the Lord, or Baylifs, or Sherif, by which they are com-

manded to doe Right and Justice to the parties, there they are Judges. Also

it was said, that by force of Justicies

a plea may be holden in the Countie

above forty shillings, and therefore it is reason that Judge should be appointed

than the suters, who of common right are Judges of small things under forty

shillings. And to this purpose are some opinions in temp.

Edw. 1. tit. Det.

177. 21 Edw. 4. 66. b. & 21 Hen. 6. tit. Retorne. 17. 21 Hen. 6. 34. a. 44 Edw.

3. 10. where Finchden holdeth, where the admeasurement of power

is made

before the Sherif, the Sherif is Judge. But upon consideration of all the Books

it was resolved, that in none of the said Cases, the Lord of a Mannor, or the

Baylifs, or Sherif, are Judges; but bee the plea holden by writ, or without writ

the suters are Judges. And the reason why the writ shall bee directed to the

Lord, or Sherif, &c. is, because the Court Baron is the Lords Court, and the

County Court is the Sherif’s Court; and therefore it is great reason the writ

be directed to him to whom the Court doth belong, to the end he see two

things performed. 1. To hold his Courts that Justice and Right be therein done

to the parties. 2. That he answered the proﬁts of his Court which belong to

1. [Ed.: We command you that you hold full right to A. B. concerning one messuage, etc.]

2. [Ed.: The king to the sheriff of S., greeting. We command you that you justice A. that rightly and

without delay he render . . .]

3. [Ed.: We command you that according to the custom of the manor etc. you hold full right, etc.

concerning one messuage.]

4. [Ed.: Writ giving a sheriff unusually greater powers in a debt collection.]

5. [Ed.: in the time.]

6. [Ed.: The 1658 edition has here “power”; the 1607 has “dower.”]

[11 b]

Jentleman’s Case 159

him. But in case where they hold plea by force of the Kings writ, it doth not

change the nature and jurisdiction of the Court: For as these without writs

are not Courts of Record, so when the plea is holden by writ, the Courts are

of the same nature; for upon a Judgement given in both cases, a writ of false

Judgement lyeth, and not a writ of Error: But if the writ which of record

should constitute a new Judge, viz. the Lord in the one case, and the Sherif

&c. in the other, then the authority of the Judge being by the Kings Writ,

which is of Record, the Court as to this purpose shall be also of record, quod

est perspicue falsum.

For without question, as it appeareth by F. N. B. and

all the books, a writ of false Judgement lyeth in such Case, although the plea

be held by writ: Also the Kings writ cannot alter the jurisdiction of the Court

Baron, County, Hundred, &c. which are all Courts at the Common Law, and

have Judges authorised and appointed in them by the Law; and therefore all

things determinable in those Courts ought to be determined by the Judges

of the same Courts; but it is true, the King may create a new Court, and

appoint new Judges in it; but after the Court is established and created, the

Judges of the Court ought to determine the matters in the Court. And therefore

neither the Lord of ancient demesne, nor of a Court Baron, nor the Sherif

in the County Court, when the | plea is holden by writ of Right, Justicies,

Admeasurement, &c. are Judges, but the Suters, who are by the Common

Law are the Judges of the Court. And therewith agree the books in 34 Hen.

6. 35. 39 Hen. 6. 5. a. 7 Edw. 4. 23. a. 6 Edw. 4. 3. b. 12 Hen. 7. 16, &c. And

observe well the words of the writ in the Register, 10. b. Rex sectatoribus, Cur.

J. Manerii de G. quae est de antiquo dominico Coronae Angliae, ut dicitur,

Salutem. Cum secundum legem & consuetudinem infra maneria, quae hujusmodi

antiquo dominico Coronae Angliae hactenus existunt, ut dicitur, usitat’ in placitis

in Curia eorundem Maneriorum pendentibus, cum ad judicium inde reddendum

sit placitatum, sectatores hujusmodi curiae ad judicia in placitis inde reddend.

licite procedere debeant & consueverunt totis temporibus retroactis.

And there it

7. [Ed.: which is obviously false. In English in 1658, but in Latin in most editions.]

8. [Ed.: The King to the suitors of the court of J. of the manor of G., which is of the ancient demesne

of the crown of England, as it is said, greeting. Whereas according to the law and custom until now used

within the manors which are of the ancient demesne of the crown of England, as it is said, in pleas depending

in the court of the same manors, when pleaded as far as judgment to be given therein, the suitors of such

court ought, and have been accustomed in all times past, lawfully to proceed to render the judgments in

the pleas therein.]

[12 a]

Part Six of the Reports160

appeareth, that the plea did there depend by a writ of Droit close, &c. Vobis

mandamus, &c. ad judicium inde reddendum cum omni celeritate procedatis,

&c.

by which it appeareth, that although the plea is holden by writ, yet the

suters are the only Judges. It appeareth also by the said books, That in a

Hundred Court, the suters are judges, and so the Law is well resolved in a

Case, wherein there was variance in opinions in our books. But in some case,

the sheriff is made Judge by Parliament, as in Redisseisin, by the Statute of

Merton, cap. 3. And all his proceeding, by force of that Act, is of record; and

a writ of Error lyeth of a judgement given against him, &c. vide 44 Edw. 3.

10. In a Court of Pipowders the Steward is Judge, 6 Hen. 4. 3. acc. 7 Edw.

4. 23. a. In the Leet the Steward, and in the torn the Sheriff judge, 10 Hen.

6, 7. 7 Hen. 6. 12. 12 Hen. 7. 15. In the Court of Marshalsea, the steward and

marshal of the King’s house are Judges, 19 Edw. 4. 8. b. F. N. B. 241. B. 20

Edw. 4. 16. b. 7 Hen. 6. 30. 4 Hen. 6. 8. Artic. super Chartas, cap. 3.

9. [Ed.: We command you, etc. to proceed with all speed to render judgment therein, etc.]

Part Seven of the Reports

The Seventh Part of Coke’s Reports was published in 1608. It was originally

entitled La sept part des reports Sr. Edw. Coke chivaler, chiefe Justice del Common

Banke: des divers resolutions & judgements done sur solemne arguments & avec

grand deliberation & conference des tresreverend judges & sages de la ley, de cases

en ley queux ne fueront unques resolve ou adiudges par deuant: et les raisons &

causes des dits resolutions & judgements. Publies en le size an del treshaut &

tresillustre Jaques roy d’Engl. Fr. & Irel. & de Escoce le 42. Le fountaine de tout

Pietie & Justice, & la vie de la Ley. In English, The Seventh Part of the Reports

of Sir Edward Coke, Knight, Lord Chief Justice of Common Pleas, of divers Res-

olutions and Judgments given upon solemn Arguments, and with great deliberation

and Conference of the reverend Judges and Sages of the Law, of Cases in law which

were never Resolved or Adjudged Before: and the Reasons and Causes thereof.

Published in the Sixth year of the most high and Most Illustrious James, King of

England, France, and Ireland, and of Scotland the 42., the Fountain of all Justice,

and the life of the Law. Coke maintained that he had not intended to publish

another part of the Reports so quickly, but the signiﬁcance of the ﬁrst case

in Part Seven, Calvin’s Case, convinced him to bring it to print. Calvin’s Case

was of great importance to the constitution of Great Britain in the relationship

among its constituent nations and with her new colonies. The case was also

important in determining the role of the courts, the Parliament, and the King

and in determining the status of the subject to the King. Besides Calvin’s Case,

this part of the Reports covers a wide range of mainly more recent cases, of

local enforcement of criminal laws, property, appointment to ofﬁces, uses (a

predecessor to the modern trust), wild animals, estates, inheritance, procedure,

the powers of the Queen, and the effects of divorce.

Part Seven of the Reports162

Epigrams from the Title Page:

Frequentibus Argumentis & Collationibus latens veritas aperitur, cum

sub eisdem verbis saepe lateat multiplex intellectus.

Veritas saepius agitata magis splendescit in lucem.

(Preface)

Deo, Patriae, Tibi.

I had no sooner (good Reader) made an end of the Sixth Part of my Com-

mentaries or Reports, but the greatest Case that ever was argued in the Hall

of Westminster began to come in question, and afterwards was Argued by all

the Judges of England. This great Case (for that Memory is inﬁda & labilis

)

whiles the Matter was recent and fresh in mind, and almost yet sounding in

the Ear, I set down in writing, out of my short Observations which I had

taken of the effect of every Argument, (as my manner is, and ever hath been)

a summary memorial of the principal authorities and reasons of the Resolutions

of that Case, for mine own private solace and instruction. I never thought to

have published the same, for that it was not like to give any direction in like

Cases that might happen, (the chiefest end of publishing Reports) it is of his

own nature so like the Phoenix, and so singular and rare in accident, as the

union of two famous and ancient Kingdoms in ligeance and obedience under

one great and mighty Monarch. Now when I had ended it for my private, I

was by commandment to begin again (a matter of no small labour and dif-

ﬁculty) for the publick. For certainly, that succinct method and collection that

will serve for the private memorial or repertory, especially of him that knew

and heard all, will nothing become a publick Report for the present and all

posterity, or be sufﬁcient to instruct those Readers, who of themselves know

nothing, but must be instructed by the Report only in the right rule and

reason of the case in question. And as unda gignit undam,

so commonly one

1. [Ed.: The hidden truth is opened up by frequent argument and conference, since hiding beneath

the same words there is often a manifold understanding. The truth being frequently considered shines

greater in the light.]

2. [Ed.: To God, to the country, to you.]

3. [Ed.: untrustworthy and unstable.]

4. [Ed.: a wave begets a wave,]

Preface 163

labour cometh not alone: This brought on another with it; for seeing this

Case was of so rare a quality, I thought good as well for thine instruction and

use (good Reader) as for the repose and quiet of many, in resolving of Questions

and Doubts (wherein there hath been great diversity of Opinions) concerning

their estates and possessions, to publish some others that are common in ac-

cident, weighty in consequent, and yet never resolved or adjudged before: So

as it is now veriﬁed in this, that which hath been said of old, Labor labori

laborem addit.

With this Seventh Work or part of my Reports (whereunto Almighty God

of his goodness hath in this short time, amongst many other publick Em-

ployments, enabled me) I have out of my love unto all my dear Countrymen,

of what perswasion in Religion soever they be, thought good to give them all

a caveat or fore-warning in a Case of great importance, that deeply and dan-

gerously concerns them all in so high a point, that in the ﬁrst degree it is a

Praemunire,

and in the second High Treason. And yet many men, without

all fear (by reason I think they know not the Law) run into the danger thereof

almost every day. I must confess, that this is a writing or a scribling World,

quotidie plures, quotidie pejus scribunt.

And sure I am, that no man can either

bring over those Books of late written (which I have seen) from Rome or

Romanists, or read them, and justiﬁe them, or deliver them over to any other

with a liking and allowance of the same (as the Authors end and desire is they

should) but they run into desperate dangers and downfalls; for the ﬁrst offence

is a Praemunire, which is to be adjudged to be out of the Kings protection,

to lose all their Lands and Goods, and to suffer perpetual Imprisonment, and

they that offend the second time therein, incur the heavy danger of high

Treason. These Books have glorious and goodly Titles, which promise direc-

tions for the Conscience, and remedies for the Soul, but there is mors in olla:

They are like to Apothecaries Boxes, quorum tituli pollicentur remedia, sed

pixides ipsae venena continent,

whose Titles promise remedies, but the Boxes

themselves contain Poyson. This forewarning I give out of conscience and

5. [Ed.: Labour adds work to work.]

6. [Ed.: The offence of introducing a foreign power into the Kingdom, used particularly to regulate

Roman Catholics in the Kingdom.]

7. [Ed.: every day more people write, and every day worse.]

8. [Ed.: death in a jar.]

9. [Ed.: the labels whereof promise remedies, but the boxes themselves contain poison,]

Part Seven of the Reports164

care of their safety, that blindfold might fall into so great danger by their

means whom they so much reverence. I am not afraid of Gnats that can prick

and cannot hurt, nor of Drones that keep a buzzing, and would, but cannot

sting.

Non metuo pulicis stimulos, fucique susurros.

And little do I esteem an uncharitable and malicious practise in publishing

of an erroneous and ill spelled Pamphlet, under the name Pricket, and ded-

icating it to my singular good Lord and Father in Law the Earl of Excester,

as a Charge given at the Afﬁses holden at the City of Norwich, 4 Augusti 1606.

Which I protest was not only published without my privity, but (besides the

omission of divers principal matters) that there is no one period therein ex-

pressed in that sort and sense that I delivered it: Wherein it is worthy of

observation how their expectation (of scandalizing me) was wholly deceived,

for behold the catastrophe. Such of the Readers as were learned in the Laws,

ﬁnding not only gross Errors and Absurdities in Law, but palpable mistakings

in the very words of Art, and the whole context of that rude and ragged Stile,

wholly dissonant (the Subject being legal) from a Lawyers dialect, concluded,

that inimicus & iniquus homo superseminavit zizania in medio tritici:

The

other discreet and indifferent Readers, out of Sense and Reason, found out

the same conclusion, both in respect of the vanity of the phrase, and for that,

I publishing about the same time one of my Commentaries, would, if I had

intended the publication of any such matter, have done it my self, and not

to have suffered any of my works to pass under the name of Pricket, and so

una voce conclamaverunt omnes,

That it was a shameful and shamless practice,

and the Author thereof, to be a wicked and malicious falsary.

Circumvertit enim vis & injuria quemque,

Atque unde exorta est, ad eum plerumq; revertit.

In these and the rest of my Reports, I have (as much as I could) avoided

Obscurity, Ambiguity, Jeopardy, Novelty and Prolixity. 1. Obscurity, for that

10. [Ed.: I am not afraid of the sting of the ﬂea and the humming of the drone.]

11. [Ed.: an enemy and a wicked man has scattered tares in the midst of the wheat.]

12. [Ed.: they all shouted with one voice.]

13. [Ed.: For force and wrong turn themselves around, and most often return to him from whence they

came.]

Preface 165

is like unto Darkness, wherein a Man for want of Light, can hardly with all

his industry discern any way. 2. Ambiguity, where there is Light enough, but

there be so many winding and intricate ways, as a Man, for want of direction,

shall be much perplexed and intangled, to ﬁnd out the right way. 3. Jeopardy,

either in publishing of any thing, that might rather stir up Suits and contro-

versies in this troublesome World, than stablish quietness and repose between

Man and Man (for a Commentary should not be like unto the Winterly Sun;

that raiseth up greater and thicker Mists and Fogs, than it is able to disperse)

or in bringing the Reader, by any means, into the least question of peril or

danger at all. 4. Novelty, For I have ever holden all new or private interpre-

tations, or opinions, which have no Ground or Warrant out of the Reason or

Rule of our Books, or former Presidents, to be dangerous, and not worthy of

any Observation: For periculosum existimo quod honorum virorum non com-

probatur exemplo.

5. Prolixity, For a Report ought to be no longer than the

matter requireth, and as Languor prolixus gravat medicum, ita relatio prolixa

gravat lectorem.

The Case of Postnati, I confess, is longer than any of the rest, and that for

three Causes. 1. For that it was an Exchequer-chamber Case, for deciding

whereof all the Judges of England (as the Law doth require) did argue openly

and at large. 2. For that never any Case within Mans Memory, was argued

by so many Judges in the Exchequer-chamber, as this was, there having argued

the Lord Chancellor and 14 Judges. 3. For the variety as well of the important

matter, as of the several kinds of excellent Learning and knowledge, delivered

in the Arguments of this Case.

Finally, With these Wishes and Desires I conclude. 1. That the Studious

Reader might indeed receive as great proﬁt and delight in Reading this work,

as I did (unless mine own judgment deceive me) in composing and framing

thereof. 2. That quoad ejus ﬁeri possit, quaiam plurima legibus ipsis diﬁniantur,

quam paucissima vero Judicis arbitrio relinquantur.

14. [Ed.: I consider anything dangerous that is not proved by the example of good men.]

15. [Ed.: just as a prolonged illness grieves the doctor, so a prolix report grieves the reader.]

16. [Ed.: as far as may be, most things should be deﬁned by the laws themselves and little should be

left to the discretion of the judge.]

Part Seven of the Reports166

Calvin’s Case, or the Case of the Postnati.

(1608) Trinity Term, 6 James I

In the Court of King’s Bench, heard in the Exchequer

by the Chancellor and all the Judges of England.

First Published in the Reports, volume 7, page 1a.

Ed.: Under the feudal system, the absolute loyalty owed by a subject to the

King, an allegiance enforced by duties that were tied to the holding of

interests in land, made unthinkable, and illegal, the ownership of land by

one person in two different kingdoms. When King James VI of Scotland

assumed the English throne, both the Scots and the English were beholden

to the same monarch, and the traditional reason for prohibiting a foreigner

to own lands in the kingdom, which would have barred a Scot from holding

lands in England and vice versa, was considerably weakened. It was par-

ticularly difﬁcult when applied to someone who was born after James had

taken the new throne, who were called the post-nati, a phrase by which the

case is often known. The issue in this case arose when Robert Calvin, who

was a Scot born three years after James’s coronation in England, came by

land in England. His lands were entered by Richard and Nicholas Smith,

and when Calvin’s guardians sued, the Smith’s defense was that Robert

could not own the land.

The case was heard by all of the judges of England, while Coke was Chief

Justice of Common Pleas, with arguments by Bacon as Solicitor General

and Hobart as Attorney General. Coke was very active in this case, arguing

the King’s position throughout and presenting, here the last argument, for

Calvin, before the Court’s judgment. The Court, considering arguments

based on the nature of allegiance, majesty, conquest, natural reason, and

an unalterable law of nature, held that Calvin was not an alien, and he

could hold land in England. This case had tremendous implications for

James’s view of forging a single nation of Great Britain, as well as for the

rights of subjects living in the new colonies overseas. For the effects of

citizenship on a local level, see James Bagg’s Case, p. 404.

1. [Ed.: Those born after [the accession of James VI of Scotland to the throne of England].]

Calvin’s Case 167

James by the grace of God of England, Scotland, France, and Ireland, King,

defender of the faith, &c. To the Sheriff of Middlesex greeting: Robert Calvin,

gent. hath complained to us, that Richard Smith and Nicholas Smith, unjustly,

and without judgment, have disseised him of his freehold in | Haggard, other-

wise Haggerston, otherwise Aggerston, in the parish of St. Leonard, in Shore-

ditch, within thirty years now last past; and therefore we command you, that

if the said Robert shall secure you to prosecute his claim, then that you cause

the said tenement to be reseised with the chattels which within it were taken,

and the said tenement with the chattels to be in peace until Thursday next

after ﬁfteen days of Saint Martin next coming; and in the mean time, cause

twelve free and lawful men of that neighbourhood to view the said tenement,

and the names of them to be inbreviated; and summon them by good sum-

moners, that they be then before us wherever we shall then be in England,

ready thereof to make recognition; and put, by sureties and safe pledges, the

aforesaid Richard and Nicholas, or their bailiffs, (if they cannot be found),

that they be then there, to hear the recognition; and have there the summoners,

the names of the pledges, and this writ. Witness ourself at Westminster, the

3d day of November, in the 5th year of our reign of England, France, and

Ireland, and of Scotland the one-and-fortieth.

For 40s. paid in the hamper,

Kindesley.

Middlesex, ss. The assize cometh to recognise, The Count. if Richard Smith,

and Nicholas Smith unjustly, and without judgment, did disseise Rob. Calvin,

gent. of his freehold in Haggard, otherwise Haggerston, otherwise Aggerston,

in the parish of St. Leonard in Shoreditch, within thirty years now last past:

and whereupon the said Robert, who is within the age of twenty-one years,

by John Parkinson, and William Parkinson, his guardians, by the Court of

the said King here to this being jointly and severally specially admitted, com-

plaineth that they disseised him of one messuage with the appurtenances, &c.

And the said Richard and Nicholas, by William Edwards, their attorney, come

and say, that the said Robert ought not to be answered to his writ aforesaid,

because they say that the said Robert is an alien born, on the 5th day of Nov.

in the 3rd year of the reign of the King that now is, of England, France, and

Ireland, and of Scotland the thirty-ninth, at Edinburgh within his kingdom

of Scotland aforesaid, and within the allegiance of the said lord the King, of

the said kingdom of Scotland, and out of the allegiance of the said lord the

The writ of

Assize.

[1 b]

The

Count.

Aliance

pleaded in

bar.

Part Seven of the Reports168

King of his kingdom of England; and at the time of the birth of the said Robert

Calvin, and long before, and continually afterwards, the aforesaid kingdom

of Scotland, by the proper rights, laws, and statutes of the same kingdom,

and not by the rights, laws, or statutes of this kingdom of England, was and

yet is ruled and governed. And this he is ready to verify, and thereupon prayeth

judgment, if the said Robert, to his said writ aforesaid, ought to be answered,

&c. And the aforesaid Robert Calvin saith, that the aforesaid plea, by the

aforesaid Richard and Nicholas above pleaded, is insufﬁcient in law to bar

him, the said Robert from having an answer to his writ aforesaid; and that

the said Robert to the said plea in manner and form aforesaid pleaded, needeth

not, nor by the law of the land is bound to answer; and this he is ready to

verify, and hereof prayeth judgment; and that the said Richard and Nicholas

to the aforesaid writ of the said Robert may answer. And the said Richard and

Nicholas, forasmuch as they have above alleged sufﬁcient matter in law to bar

him the said Robert from having an answer to his said writ, which they are

ready to verify; which matter the aforesaid Robert doth not gainsay, nor to

the same doth in any ways answer, but the said averment altogether refuseth

to admit as before pray judgment, if the aforesaid Robert ought to be answered

to his said writ, &c. And because the Court of the lord the King here are not

yet advised of giving their judgment of and upon the premises, day thereof

is given to the parties aforesaid; before the lord the King at Westminster until

Monday next after eight days of St. Hilary, to hear their judgment thereof,

because the Court of the lord the King here thereof are not yet, &c. And the

assize aforesaid remains to be taken before the said lord the King, until the

same Monday there, &c. And the sheriff to distrain the recognitors of the

assize aforesaid: and in the interim to cause a view, &c.; at which day, before

the lord the King at Westminster, come as well the aforesaid Robert Calvin,

by his guardians aforesaid, as the aforesaid Richard Smith and Nicholas Smith

by their attorney aforesaid; and because the Court of the Lord the King | here

of giving their judgment of and upon the premises is not yet advised, day

thereof is given to the parties aforesaid before the lord the King at Westminster,

until Monday next after the morrow of the Ascension of our Lord, to hear

their judgment: because the Court of the lord the King here are not yet, &c.

And the assize aforesaid remains further to be taken, until the same Monday

there, &c.: and the sheriff, as before, to distrain the recoguitors of the assize

aforesaid, and in the interim to cause a view, &c. At which day, before the

lord the King at Westminster, come as well the aforesaid Robert Calvin by

Demurrer.

Joinder.

Continu-

ances.

Curia advi-

sare valt.

[2 a]

Calvin’s Case 169

his guardians aforesaid, as the aforesaid Richard Smith and Nicholas Smith,

by their attorney aforesaid, &c.: and because the Court of the lord the King

here, &c.

The question of this case as to matter in law was, whether Robert Calvin

the Plaintiff (being born in Scotland since the Crown of England descended

to His Majesty) be an alien born, and consequently disabled to bring any real

or personal action for any lands within the realm of England. After this case

had been argued in the Court of King’s Bench at the barre, by the counsel

learned of either party, the Judges of that Court, upon conference and con-

sideration of the weight and importance thereof, adjourned the same (ac-

cording to the ancient and ordinary course and order of Law) into the Ex-

chequer Chamber, to be argued openly there; ﬁrst by the counsel learned of

either party, and then by all the Judges of England: where afterwards the case

was argued by Bacon Solicitor General, on the part of the Plaintiff, and by

Laur. Hide for the Defendant: and afterward by Hobart Attorney-General for

the Plaintiff, and by Serjeant Hutton for the Defendant: and in Easter term

last, the case was argued by Heron puisne Baron of the Exchequer, and Foster

puisne Judge of the Court of Common Pleas: and, on the second day appointed

for this case, by Crook puisne Judge of the King’s Bench, and Altham Baron

of the Exchequer: the third day by Snigge Baron of the Exchequer, and Wil-

liams one of the Judges of the King’s Bench: the fourth day by Daniel one

of the Judges of the Court of Common Pleas, and by Yelverton one of the

Judges of the King’s Bench: And in Trinity Term following, by Warbarton

one of the Judges of the Common Pleas, and Fenner one of the Judges of the

King’s Bench: and after argued Walmesley one of the Judges of the Common

Pleas, and Tanﬁeld chief Baron: and, at two several days in the same Term,

Coke, chief Justice of the Common Pleas, Fleming, ch. Justice of the King’s

Bench, and Sir Thomas Egerton, Lord Ellesmere, Lord Chancellor of England,

argued the case (the like plea in disability | of Robert Calvin’s person being

pleaded mutatis mutandis

in the Chancery in a suit there for evidence con-

cerning lands of inheritance, and by the Lord Chancellor adjourned also into

the Exchequer chamber, to the end that one rule might overrule both the said

cases). And ﬁrst (for that I intend to make as summary a Report as I can) I

2. [Ed.: changing what ought to be changed.]

The Ques-

tion.

[2 b]

Part Seven of the Reports170

will at the ﬁrst set down such arguments and objections as were made and

drawn out of this short record against the Plaintiff, by those that argued for

the Defendants. It was observed, that in this plea there were four nouns,

quatuor nomina,

which were called nomina operativa,

because from them all

the said arguments and objections on the part of the Defendants were drawn;

that is to say, 1. Ligeantia

(which is twice repeated in the plea, for it is said,

Infra ligeantiam domini regis regni sui Scotiae, et extra ligeantiam domini regis

regni sui Angliae.)

2. Regnuum

(which also appeareth to be twice mentioned,

viz. regnum Angliae, and regnum Scotiae.)

3. Leges

(which are twice alleged,

viz. Leges Angliae, and leges Scotiae,

two several and distinct Lawes). 4. Al-

ienigena

(which is the conclusion of all, viz. that Robert Calvin is Alienigena).

1. Ligentia. By the ﬁrst it appeareth, that the Defendants do make two

ligeances, one of England, and another of Scotland, and from these several

ligeances two arguments were framed, which brieﬂy may be concluded thus:

Whosoever is born infra ligeantiam, within the ligeance of King James of his

kingdom of Scotland, is Alienigena, an alien born, as to the kingdom of En-

gland: but Robert Calvin was born at Edinburgh, within the ligeance of the

King of his kingdom of Scotland; therefore Robert Calvin is Alienigena, an

alien born, as to the kingdom of England. 2. Whosoever is born extra li-

geantiam, out of the ligeance of King James of his kingdom of England, is an

alien as to the kingdom of England: but the plaintiff was born out of the

ligeance of the King of his kingdom of England; therefore the Plaintiff is an

alien, &c. Both these arguments are drawn from the very words of the plea,

viz. Quod praedictus Robertus est alienigena, natus 5 Novembris anno regnidomini

regis nunc Angliae, &c. tertio, apud Edenburgh infra regnum Scotiae, ac infra

3. [Ed.: four nouns.]

4. [Ed.: operative nouns.]

5. [Ed.: allegiance.]

6. [Ed.: Within the allegiance of the Lord King of his realm of Scotland and outside the allegiance of

the Lord King of his realm of England.]

7. [Ed.: the realm.]

8. [Ed.: the realm of England [and] the realm of Scotland.]

9. [Ed.: laws.]

10. [Ed.: laws of England [and] laws of Scotland.]

11. [Ed.: alien born.]

The argu-

ments and

objections

on the part

of the de-

fendant.

Calvin’s Case 171

ligeantiam dicti domini regis dicti regni sui Scotiae, ac extra ligeantiam dicti

domini regis regni sui Angliae.

2. Regna. From the several kingdoms, viz. regnum Angliae, and regnum Sco-

tiae, three arguments were drawn: 1. Quando duo jura (imo duo regna) con-

currunt in una persona, aequum est ac si essent in diversis:

but in the King’s

person there concurr two distinct and several kingdoms; therefore it is all one

as if they were in divers persons, | and consequently the Plaintiff is an alien

as all the Antenati

be for that they were born under the ligeance of another

King. 2. Whatsoever is due to the King’s several politic capacities of the several

kingdoms is several and divided: but ligeance of each nation is due to the

King’s several politique capacities of the several kingdoms; Ergo, The ligeance

of each nation is several and divided, and consequently the Plaintiff is an alien,

for that they that be born under several ligeances are aliens one to another.

3. Where the King hath several kingdoms by several titles and descents, there

also are the ligeances several: but the King hath these two kingdoms by several

titles and descents; therefore the ligeances are several. These three arguments

are collected also from the words of the plea before remembered.

3. Leges. From the several and distinct lawes of either kingdom, they did

reason thus; 1. Every subject that is born out of the extent and reach of the

Laws of England, cannot by judgment of those laws be a natural subject to

the King, in respect of his kingdom of England: but the Plaintiff was born

at Edinburgh, out of the extent and reach of the Laws of England; therefore

the Plaintiff by the judgment of the lawes of England cannot be a natural

subject to the King, as of his kingdom of England. 2. That subject, that is

not at the time and in the place of his birth inheritable to the laws of England,

cannot be inheritable or partaker of the beneﬁts and privileges given by the

laws of England: but the plaintiff at the time, and in the place of his birth

was not inheritable to the Laws of England, (but only to the Laws of Scotland;)

therefore he is not inheritable, or to be partaker of the beneﬁts or privileges

12. [Ed.: That the aforesaid Robert is an alien born, born on the ﬁfth of November in the third year

of the reign of the present Lord King of England, etc. at Edinburgh within the realm of Scotland and

within the allegiance of the said Lord King of his said realm of Scotland and outside the allegiance of the

said Lord King of his realm of England.]

13. [Ed.: when two rights (nay two realms) come together in one person, it is the same as if they were

in several.]

14. [Ed.: born before [the union].]

[3 a]

Part Seven of the Reports172

of the Laws of England. 3. Whatsoever appeareth to be out of the jurisdiction

of the laws of England, cannot be tried by the same Laws: but the Plaintiff ’s

birth at Edenborough is out of the jurisdiction of the laws of England; therefore

the same cannot be tried by the Laws of England. Which three arguments

were drawn from these words of the plea, viz. Quodque tempore nativitatis

praeedictus Roberti Calvin, ac diu antea, et continue` postea, praedictum regnum

Scotiae per jura, leges et statuta ejusdem regni propria, et non per jura, leges, seu

statuta hujus regni Angliae regulat’ et gubernat’ fuit, et adhuc est.

4. Alienigena. From this word Alienigena they argued thus Every subject

that is alienae gentis (id est) alienae ligeantiae, est alienigena:

but such a one

is the plaintiff; therefore, &c. And to these arguments, all that was spoken

learnedly and at large by those that argued against the Plaintiff may be reduced.

| But it was resolved by the L. Chancellor and twelve Judges, viz. the 2.

chief Justices, the chief baron, Justice Fenner, Warbarton, Yelverton, Daniel,

Williams, baron Snig, baron Altham, Justice Crooke, and baron Heron, that

the Plaintiff was no alien, and consequently that he ought to be answered in

this Assise by the Defendant.

This case was as elaborately, substantially, and judicially argued by the Lord

Chancellor, and by my brethren the Judges, as I ever read or heard of any;

and so in mine opinion the weight and consequence of the cause, both in

praesenti et perpetuis futuris temporibus

justly deserved: for though it was one

of the shortest and least that ever we argued in this Court, yet was it the longest

and weightiest that ever was argued in any court; the shortest in syllables, and

the longest in substance; the least for the value (and yet not tending to the

right of that least) but the weightiest for the consequent, both for the present,

and for all posterity. And therefore it was said, that those that had written de

fossilibus

did observe, that gold hidden in the bowels of the earth, was in

respect of the masse of the whole earth, parvum in magno:

but of this short

15. [Ed.: And that at the time of the birth of the aforesaid Robert Calvin, and long before, and con-

tinuously thereafter, the aforesaid realm of Scotland was ruled and governed by the proper written and

unwritten laws and statutes of the same realm and not by the written and unwritten laws and statutes of

this realm of England, and it still is.]

16. [Ed.: of an alien people, that is, of an alien allegiance, is an alien born.]

17. [Ed.: at the present and in the future in perpetuity.]

18. [Ed.: of things which may be dug from the earth.]

19. [Ed.: a small thing in a great.]

[3 b]

How this

case was

argued by

the Lord

Chancellor

and the

Judges.

Calvin’s Case 173

plea it might be truly said (which is more strange) that here was magnum in

parvo.

And in the arguments of those that argued for the Plaintiff, I specially

noted, That albeit they spake according to their own heart, yet they spake

not out of their own head and invention: wherein they followed the counsel

given in God’s book, Interroga pristinam generationem

(for out of the old

ﬁelds must come the new corn) et diligenter investiga patrum memoriam,

and

diligently search out the judgments of our forefathers: and that for divers

reasons. First on our own part, Hesterni enim sumus et ignoramus, et vita nostra

sicut umbra super terram:

for we are but of yesterday, (and therefore had

need of the wisdom of those that were before us) and had been ignorant (if

we had not received light and knowledge from our forefathers) and our daies

upon the earth are but as a shadow, in respect of the old ancient dayes and

times past, wherein the Laws have been by the wisdom of the most excellent

men, in many successions of ages, by long and continual experience (the trial

of right and truth) ﬁned and reﬁned, which no one man (being of so short

a time) albeit he had in his head the wisdom of all the men in the world, in

any one age could ever have effected or attained unto. And therefore it is

optima regula, qua nulla est verior aut ﬁrmior in jure, Neminem oportet esse

sapientiorem legibus:

no man ought to | take upon him to be wiser than the

laws. Secondly, in respect of our forefathers: Ipsi

(saith the text) docebunt

te, et loquentur tibi, et ex corde suo proferent eloquia,

they shall teach thee,

and tell thee, and shall utter the words of their heart, without all equivocation

or mental reservation; they (I say) that cannot be daunted with fear of any

power above them, nor be dazzled with the applause of the popular about

them, nor fretted with any discontentment (the matter of opposition and

contradiction) within them, but shall speak the words of their heart, without

all affection or infection whatsoever.

Also in their arguments of this case concerning an alien, they told no strange

20. [Ed.: a great thing in a small [matter].]

21. [Ed.: Examine the ﬁrst generation.]

22. [Ed.: and diligently investigate the memory of [your] fathers.]

23. [Ed.: for we are yesterday’s men, and our life is but a shadow upon the earth.]

24. [Ed.: the best rule, than which nothing is more true or more settled in law, that no one ought to

consider himself wiser than the laws.]

25. [Ed.: they.]

26. [Ed.: [they] will teach you and tell you, and speak eloquently from their heart.]

[4 a]

Part Seven of the Reports174

histories, cited no foreign laws, produced no alien precedents, and that for

two causes: the one, for that the Laws of England are so copious in this point,

as God willing by the report of this case shall appear: the other, lest their

arguments concerning an alien born, should become forein, strange, and an

alien to the state of the question, which being quaestio juris,

concerning

freehold, and inheritance in England, is only to be decided by the laws of this

Realm. And albeit I concurred with those that adjudged the Plaintiff to be

no alien, yet do I ﬁnd a mere stranger in this case, such a one as the eye of

the Law (our books, and book cases) never saw, as the ears of the Law (our

Reporters) never heard of, nor the mouth of the Law (for Judex est lex loquens

)

the Judges our forefathers of the Law never tasted: I say, such a one, as the

stomack of the Law, our exquisit and perfect Records of pleadings, entries,

and judgments, (that make equal and true distribution of all cases in question)

never digested. In a word, this little plea is a great stranger to the Laws of

England, as shall manifestly appear by the resolution of this case. And now

that I have taken upon me to make a report of their arguments, I ought to

do the same as truly, fully, and sincerely as possibly I can: howbeit, seeing that

almost every Judge had in the course of his argument a peculiar method, and

I must only hold myself to one, I shall give no just offence to any, if I challenge

that which of right is due to every Reporter, that is, to reduce the summe and

effect of all to such a method, as upon consideration had of all the arguments,

the Reporter himself thinketh to be ﬁttest and clearest for the right under-

standing of the true reasons and causes of the judgment and resolution of the

case in question.

In this case 5. things did fall into consideration. 1. Ligeantia. 2. Leges. 3.

Regna. 4. Alienigena. 5. What legal inconveniences would ensue on either side.

| 1. Concerning ligeance: 1. It was resolved what ligeance was: 2. How many

kinds of ligeances there were: 3. Where ligeance was due: 4. To whom it was

due: and lastly, How it was due.

2. For the Laws: 1. That ligeance, or obedience of the subject to the Sov-

ereign, is due by the Law of nature: 2. That this Law of nature is part of the

Laws of England: 3. That the Law of nature was before any judicial ormunicipal

27. [Ed.: a question of law.]

28. [Ed.: A judge is the law speaking.]

The meth-

od that the

reporter

doth use.

What

things did

fall into

considera-

tion in this

case.

[4 b]

Calvin’s Case 175

Law in the world: 4. That the Law of nature is immutable and cannot be

changed.

3. As touching the kingdomes: How farr forth by the act of Law the Union

is already made, and wherein the kingdomes doe yet remain separate and

divided.

4. Of Alienigena, an alien born: 1. What an alien born is in Law: 2. The

division and diversity of aliens: 3. Incidents to every alien: 4. Authorities in

Law: 5. Demonstrative conclusions upon the premises, that the Plaintiff can

be no alien.

5. Upon due consideration had of the consequent of this case: What in-

conveniences legal should follow on either party.

And these several parts I will in this Report pursue in such order as they

have been propounded: and ﬁrst de Ligeantia.

1. Ligeance is a true and faithful obedience of the subject due to his Sov-

ereign. This ligeance and obedience is an incident inseparable to every subject;

for as soon as he is born he oweth by birth right ligeance and obedience to

his Sovereign. Ligeantia est vinculum ﬁdei; and Ligeantia est quasi legis essentia.

Ligeantia est ligamentum, quasi ligatio mentium: quia sicut ligamentum est con-

nexio articulorum et juncturarum, &c.

As the ligatures or strings do knit

together the joints of all the parts of the body, so doth ligeance joyn together

the Sovereign and all his Subjects, quasi uno ligamine. Glanvil, who wrote in

the reign of Hen. 2. lib. 9. cap. 4. speaking of the connexion which ought to

be between the Lord and Tenant that holdeth by homage, saith, That mutua

debet esse dominii et ﬁdelitatis connexio, ita quod quantum debet domino ex

homagio, tantum illi debet dominus ex dominio, praeter solam reverentiam,

and

the Lord (saith he) ought to defend his tenant. But between the Sovereign

and the subject there is without comparison a higher and greater connexion:

for as the subject oweth to the King his true and faithful ligeance and obe-

dience, so the Sovereign is to govern and protect his Subjects, | regere et protegere

subditos suos:

so as between the Sovereign and subject there is duplex et

29. [Ed.: Allegiance is a bond of faith. Allegiance is, as it were, the essence of law. Allegiance is a ligament,

as it were a tying together of minds, just as a ligament is a connection of limbs and joints, etc.]

30. [Ed.: the bond of trust arising from lordship should be mutual, so that the lord owes as much

to [his man] on account of lordship as he owes to his lord on account of lordship, save only reverence.

Ed.: to rule and protect the subjects.]

The 1st

general

part what

ligeance is.

[5 a]

Note.

Part Seven of the Reports176

reciprocum ligamen; quia sicut subditus regi tenetur ad obedientiam, ita rex sub-

dito tenetur ad protectionem: merito igitur ligeantia dicitur a ligando, quia con-

tinet in se duplex ligamen.

And therefore it is holden in 20 H. 7, 8. that there

is a liege or ligeance between the King and the subject. And Fortescue, cap.

13. Rex ad tutelam legis, corporum, et bonorum subditorum erectus est.

And in

the Acts of Parliament of 10 Rich. 2. cap. 5. and 11 Rich. 2. cap. 1. 14 Hen.

8. cap. 2. &c. Subjects are called liege people: and in the acts of Parliament

in 34 Hen. 8. cap. 1. and 35 Hen. 8. cap. 3., &c. the King is called the liege

Lord of his Subjects. And with this agreeth M. Skene in his book de expositione

verborum (which book was cited by one of the Judges which argued against

the Plaintiff) Ligeance is the mutual bond and obligation between the King

and his subjects, whereby subjects are called his liege subjects, because they

are bound to obey and serve him, and he is called their liege Lord, because

he should maintain and defend them. Whereby it appeareth, that in this point

the Law of England, and of Scotland is all one. Therefore it is truly said that

protectio trahit subjectionem, et subjectio protectionem.

And hereby it plainly

appeareth, that ligeance doth not begin by the oath in the Leet; for many men

owe true ligeance that never were sworn in a Leet, and the swearing in a Leet

maketh no denization, as the book is adjudged in 14 Hen. 4. fol. 19. This word

ligeance is well expressed by divers several names or synonymia which we ﬁnd

in our books. Sometime it is called the obedience or obeysance of the subject

to the King, obedientia regi, 9 Edw. 4. 7. 9 Edw. 4. 6. 2 Rich. 3. 2. in the book

of entries, Ejectione Firm’. 14 Hen. 8. cap. 2. 22 Hen. 8. cap. 8., &c. Sometime

he is called a natural liege man that is born under the power of the King, sub

potestate regis,

2. Hen. 3. tit. Dower. Vide the Statute de 11 Edw. 3. cap. 2

Sometimes ligeance is called faith Fides, ad ﬁdem Regis, &c. Bracton who wrote

in the reign of Hen. 3. lib. 5. tractat’ de exceptionibus, cap. 24. fol. 427. Est

etiam alia exceptio quae competit ex persona quaerentis, proper defectum nationis,

ut si quis alienigena qui fuit ad ﬁdem Regis Franc’, &c.

And Fleta (which book

31. [Ed.: a dual and reciprocal tie, because just as the subject is bound in obedience to the king, so the

king is bound to the protection of the subject; and therefore allegiance is properly so called from ligando

(tying) because it contains within itself a two-way tie.]

32. [Ed.: the King is made in order to safeguard the law, the bodies and the goods of the subjects.]

33. [Ed.: protection attracts subjection, and subjection protection.]

34. [Ed.: under the power of the King.]

35. [Ed.: There is also an exception with respect to the person of the plaintiff, on account of a defect

of birth, as where he is an alien born who owed allegiance [“was to the faith of”] the King of France, etc.]

Calvin’s Case 177

was made in the reign of E. 1.) agreeth therewith; for lib. 6. c. 47. de exceptione

ex omissione participis, it is said, vel dicere potuit, quod nihil juris clamare poterit

tanquam particeps eo quod est ad ﬁdem regis Franciae, quia alienigenae repelli

debent in Anglia ab agendo, donec fuerunt ad ﬁdem regis Angliae.

Vide 25 Edw.

3. de natis ultra mare.

[faith and ligeance of the King of England; and Litt.

lib. 2. cap. Homage, saving the faith that I owe to our Sovereign Lord the

King] and Glanvil, lib. 9. cap. 1. Salva ﬁde debita dom’ Regi et haeredibus suis.

Sometimes ligeance is | called ligealty, 22 Ass. Pl. 25. By all which it evidently

appeareth, that they that are born under the obedience, power, faith, ligealty,

or ligeance of the King, are natural subjects, and no aliens. So as, seeing now

it doth appear what ligeance is, it followeth in order, that we speak of the

several kinds of ligeance. But herein we need to be very wary, for this caveat

the law giveth, ubi lex non distinguit nec nos distinguere debemus;

and certainly

lex non distinguit,

but where omnia membra dividentia

are to be found out

and proved by the law itself.

2. There is found in the law four kinds of ligeances: the ﬁrst is, ligeantia

naturalis, absoluta, pura, et indeﬁnita,

and this originally is due by nature

and birthright, and is called alta ligeantia

42a

and he that oweth this is called

subditus natus.

The second is called ligeantia acquisita,

not by nature but

by acquisition or denization, being called a denizen, or rather donaizon, be-

cause he is subditus datus.

The third is ligeantia localis

wrought by the

law, and that is when an alien that is in amity cometh into England, because

as long as he is within England, he is within the King’s protection; therefore

so long as he is there, he oweth unto the King a local obedience or ligeance,

36. [Ed.: or [the plaintiff] may say that he can claim no right as a parcener because he owes allegiance

to [literally, is to the faith of] the King of France, because aliens born ought to be barred from suing in

England until they owe allegiance to [are to the faith of] the king of England.]

37. [Ed.: concerning those born overseas.]

38. [Ed.: Saving the faith due to the lord king and his heirs.]

39. [Ed.: where the law makes no distinction, we ought not to distinguish.]

40. [Ed.: the law makes no distinction.]

41. [Ed.: all the points of difference.]

42. [Ed.: natural, absolute, pure and unlimited allegiance.]

42a. [Ed.: high allegiance.]

43. [Ed.: subject born.]

44. [Ed.: acquired allegiance.]

45. [Ed.: a subject made by gift.]

46. [Ed.: local allegiance.]

[5 b]

How many

kinds of

Ligeonces

there be.

Part Seven of the Reports178

for that the one (as it hath been said) draweth the other. The fourth is a legal

obedience, or ligeance which is called legal, because the municipal laws of this

realm have prescribed the order and form of it; and this to be done upon oath

at the Torn or Leet. The ﬁrst, that is, ligeance natural, &c. appeareth by the

said Acts of Parliament, wherein the King is called natural liege Lord, and his

people natural liege subjects]; this also doth appear in the indictments of

treason (which of all other things are the most curiously and certainly indicted

and penned) for in the indictment of the Lord Dacre, in 26 Hen. 8. it is said,

praed’ Dominus Dacre debitum ﬁdei et ligeant’ suae, quod praefato domino Regi

naturaliter et de jure impendere debuit, minime curans, &c.

And Reginald Pool

was indicted in 30 Hen. 8. for committing treason contra dom’ Regem supremum

et naturalem dominum suum.

And to this end were cited the indictment of

Edward Duke of Somerset in 5 Edw. 6. and many others both of ancient and

later times. But in the indictment of treason of John Dethick in 2 and 3 Ph.

and Mar. it is said, quod praed’ Johannes machinans, &c. praedict’ dominum

Philippum et dominam Mariam supremos dominos suos,

and omitted (natur-

alis) because King Philip was not his natural liege Lord. And of this point

more shall be said when we speak of local obedience. The second is ligeant’

acquisita, or denization: and this in the books and records of the law appeareth

to be threefold; 1. absolute, as the common denizations be, to them and their

| heires, without any limitation or restraint: 2. limited, as when the King doth

grant letters of denization to an alien, and to the heirs males of his body, as

it appeareth in 9 Edw. 4. fol. 7. in Baggot’s case; or to an alien for term of his

life, as was granted to John Reynel, 11 Hen. 6. 3. It may be granted upon

condition, for cujus est dare, ejus est disponere,

whereof I have seen divers

precedents. And this denization of an alien may be effected three manner of

wayes: by Parliament, as it was in 3 Hen. 6. 55. in Dower: by letters patents,

as the usual manner is: and by conquest, as if the King and his subjects should

conquer another Kingdome or dominion, as well Antenati as Postnati, as well

they which fought in the ﬁeld, as they which remained at home for defence

47. [Ed.: the aforesaid Lord Dacre, not regarding the duty of his faith and allegiance which naturally

and rightfully he ought to have borne to the lord king, etc.]

48. [Ed.: against the Lord King, his sovereign and natural lord.]

49. [Ed.: that the aforesaid John, scheming, etc. the aforesaid Lord Philip and Lady Mary his sovereign

lords.]

50. [Ed.: whose is to give, his is to dispose.]

Ligeantia

naturalis.

Ligeantia

acquisita.

[6 a]

Calvin’s Case 179

of their countrey, or employed elsewhere, are all denizens of the kingdom or

dominion conquered. Of which point more shall be said hereafter.

3. Concerning the local obedience, it is observable, that as there is a local

protection on the King’s part, so there is a local ligeance of the subject’s part.

And this appeareth in 4 Mar. Br. 32. and 3 and 4 Ph. and Mar. Dyer 144.

Sherley a Frenchman, being in amity with the King, came into England, and

joyned with divers subjects of this realm in treason against the King andQueen,

and the indictment concluded contra ligeant’ suae debitum;

for he owed to

the King a local obedience, that is, so long as he was within the King’s pro-

tection: which local obedience, being but momentary and incertain, is strong

enough to make a natural subject; for if he hath issue here, that issue is a

natural born subject: a fortiori

he that is born under the natural and absolute

ligeance of the King (which as it hath been said, is alta ligeantia) as the plaintiff

in the case in question was, ought to be a natural born subject; for localis

ligeantia est ligeantia inﬁma et minima, et maxime incerta.

And it is to be

observed, that it is nec coelum, nec solum,

neither the climate nor the soyl,

but ligeantia and obedientia that make the subject born: for if enemies should

come into the realm, and possess a town or fort, and have issue there, that

issue is no subject to the King of England, though he be born upon his soyl,

and under his meridian, for that he was not born under the ligeance of a

subject, nor under the protection of the King. And concerning this local obe-

dience, a president was cited in Hill. 36. Eliz. when Stephano Ferrara de Gama,

and Emanuel Lewes Tinoco, two Portugals born, coming into England under

Queen Elizabeth’s safe-conduct, and living here under her protection, joyned

with Doctor Lopez in treason within | this Realm against her Majesty: and

in this case two points were resolved by the Judges. First, that their indictment

ought to begin, that they intended treason contra dominam Reginam, &c.

omitting these words (naturalem domin’ suam)

and ought to conclude contra

ligeant’ suae debitum. But if an alien enemy come to invade this realm, and

be taken in warr, he cannot be indicted of treason: for the indictment cannot

51. [Ed.: against the duty of his allegiance.]

52. [Ed.: so much the more so.]

53. [Ed.: local allegiance is something mean and small, and extremely uncertain.]

54. [Ed.: neither the climate (lit. sky) nor the soil.]

55. [Ed.: against the Lady Queen, etc.]

56. [Ed.: his natural lady.]

Ligeantia

localis.

[6 b]

Part Seven of the Reports180

conclude contra ligeant’ suae debitum, for he never was in the protection of

the King, nor ever owed any manner of ligeance unto him, but malice and

enmity, and therefore he shall be put to death by martial law. And so it was

in anno 15 Hen. 7. in Perkin Warbeck’scase, who being an alien born in Flanders,

feigned himself to be one of the sons of Edward the fourth, and invaded this

realm with great power, with an intent to take upon him the dignity royall:

but being taken in the warr, it was resolved by the Justices, that he could not

be punished by the Common law, but before the Constable and Marshal (who

had special commission under the great Seal, to hear and determine the same

according to martial law) he had sentence to be drawn, hanged, and quartered,

which was executed accordingly. And this appeareth in the book of Griffeth

Attorney general, by an extract out of the book of Hobart, Attorney general

to King Hen. 7.

4. Now are we to speak of legal ligeance, which in our books, viz. 7 Edw.

2. tit. Avowry 211. 4 E. 3. fol. 42. 13 E. 3. tit. Avowry 120, &c. is called Suit

Royall, because that the ligeance of the subject is only due unto the King.

This oath of ligeance appeareth in Britton, who wrote in anno 5 Edw. 1. cap.

29. (and is yet commonly in use to this day in every Leet) and in our books;

the effect whereof is: “You shall swear, that from this day forward, you shall

be true and faithfull to our Sovereign Lord King James; and his heires, and

truth and faith shall bear of life and member, and terrene honour, and you

shall neither know nor hear of any ill or damage intended unto him, that you

shall not defend. So help you Almighty God.” The substance and effect hereof

is (as hath been said) due by the law of nature, ex institutione naturae,

hereafter shall appear: the form and addition of the oath is, ex provisione hom-

inis.

In this oath of ligeance ﬁve things were observed. First, That for the

time it is indeﬁnite, and without limit, “from this day forward.” Secondly,

Two excellent qualities are required, that is, to be “true and faithful.” Third,

To whom? “to our Sovereign Lord the King and his heirs”: (And albeit Britton

doth say, to the King of England that is spoken proper excellentiam, to design

the person, and not | to conﬁne the ligeance: for a Subject doth not swear his

ligeance to the King, only as King of England and not to him as King of

Scotland, or of Ireland, &c. but generally to the King). Fourth. In what man-

57. [Ed.: from the law of nature, or custom.]

58. [Ed.: the ordinance of man.]

Ligeantia

legalis.

[7 a]

Calvin’s Case 181

ner? “and faith and troth shall bear, &c. of life and member;” that is, until

the letting out of the last drop of our dearest heart blood. Fifth. Where, and

in what places ought these things to be done? in all places whatsoever; for,

“you shall neither know nor hear of any ill or damage,” &c. that you shall

not defend, &c. so as natural ligeance is not circumscribed within any place.

It is holden 12 Hen. 7. 18b. That he that is sworn in the Leet, is sworn to the

King for his ligeance, that is, to be true and faithful to the King: and if he

be once sworn for his ligeance, he shall not be sworn again during his life.

And all Letters patents of denization be, that the Patentee shall behave himself

tanquam verus et ﬁdelis ligeus domini Regis.

And this oath of ligeance at the

Tourne and Leet was ﬁrst instituted by King Arthur; for so I read, Inter leges

Sancti Edwardi Regis ante conquestum 3 cap. 35. Et quod omnes principes et

comites, proceres, milites et liberi homines debent jurare, &c. in Folkemote, et

similiter omnes proceres regni, et milites et liberi homines universi totius regni

Britann’ facere debent in pleno Folkemote ﬁdelitatem domino Regi, &c. Hanc

legem invenit Arthurus qui quondam fuit inclytissimus Rex Britonum, &c. hujus

legis authoritate expulit Arthurus Rex Saracenos et inimicos a regno, &c. et hujus

legis authoritate Etheldredus Rex uno et eodem die per universum regnum Danos

occidit. Vide Lambert inter leges Regis Edwardi, &c. fol. 135 et 136.

By this it

appeareth, when and from whom this legal ligeance had his ﬁrst institution

within this realm. Ligeantia in the case in question is meant and intended of

the ﬁrst kind of ligeance, that is, of ligeance natural, absolute, &c. due by

nature and birth-right. But if the Plaintiff’s father be made a denizen, and

purchase lands in England to him and his heirs, and die seised, this land shall

never descend to the Plaintiff, for that the King by his Letters Patents may

make a denizen, but cannot naturalize him to all purposes, as an Act of Par-

liament may doe; neither can Letters Patents make any inheritable in this case,

that by the common Law cannot inherit. And herewith agreeth 36 Hen. 6.

tit. Denizen Br. 9.

59. [Ed.: as a true and faithful liege of the Lord King.]

60. [Ed.: And that all princes and earls, peers, knights and free men ought to swear, etc. in the folk-

moot, and likewise all peers of the realm and the knights and free men of the whole realm of Britain ought

to do fealty to the lord king in full folk-moot, etc. This law was introduced by Arthur, who was once a

most famous king of the Britons, [and] by authority of this law King Arthur expelled the Saracens and

enemies from the realm, etc.; and by authority of this law King Ethelred on one and the same day killed

the Danes throughout the realm. See Lambarde, under the laws of King Edward, etc., ff. 135 and 136.]

Part Seven of the Reports182

Homage in our book is twofold, that is to say, Homagium Ligeum,

and

that is as much as ligeance, of which Bracton speaketh, lib. 2. c. 35. fol. 79.

Soli Regi debet’ sine dominio, seu servitio:

| and there is Homagium feodale,

which hath his original by tenure. In Fit. Nat. Brev. 269. there is a writ for

respiting of this later homage (which is due ratione feodi sive tenurae:) Sciatis

quod respectuamus homagium nobis de terr’ et tenementis quae tenentur de nobis

in capite debit’.

But Homagium ligeum, i.e. Ligeantia, is inherent and insep-

arable, and cannot be respited.

3. Now are we come unto (and almost past) the consideration of this cir-

cumstance, where natural ligeance should be due: For by that which hath been

said it appeareth, that ligeance, and faith and truth which are her members

and parts, are qualities of the mind and soul of man, and cannot be circum-

scribed within the predicament of ubi

for that were to confound predica-

ments, and to goe about to drive (an absurd and impossible thing) the pre-

dicament of Quality into the predicament of ubi. Non respondetur ad hanc

quaestionem, ubi est? to say, Verus et ﬁdelis subditus est; sed ad hanc quaestionem,

qualis est? Recte et apte respondetur, verus et ﬁdelis ligeus, &c. est.

But yet for

the greater illustration of the matter, this point was handled by itself, and that

ligeance of the subject was of as great an extent and latitude, as the royal power

and protection of the King, et e` converso.

It appeareth by the statute of 11

Hen. 7. cap. 1. and 2 Edw. 6. cap. 2. that the subjects of England are bound

by their ligeance to goe with the King, &c. in his wars, as well within the

Realm, &c. as without. And therefore we daily see, that when either Ireland

or any other of his Majesty’s dominions be infested with invasion or insur-

rection, the king of England sendeth his subjects out of England, and his

subjects out of Scotland also into Ireland, for the withstanding or suppressing

of the same, to the end his rebels may feel the swords of either nation. And

61. [Ed.: Liege Homage.]

62. [Ed.: it is owed to the King alone, without lordship or service.]

63. [Ed.: feudal Homage.]

64. [Ed.: by reason of fee or tenure: Know ye that we have respited the homage due to us from the

lands and tenements which are held of us in chief.]

65. [Ed.: where.]

66. [Ed.: It is not an answer to the question ‘Where is he?’ to say that he is a true and faithful subject.

However, the question ‘What kind of person is he?’ is rightly and aptly answered by saying that he is a

true and faithful liege.]

67. [Ed.: and conversely.]

Homage is

two-fold.

[7 b]

Where nat-

ural legi-

ance is

due.

Calvin’s Case 183

so may his subjects of Guernsey, Jersey, Isle of Man, &c. be commanded to

make their swords good against either rebel or enemy, as occasion shall be

offered: whereas if natural ligeance of the subjects of England should be local,

that is, conﬁned within the realm of England or Scotland, &c. then were not

they bound to goe out of the continent of the realm of England or Scotland,

&c. And the opinion of Thirninge in 7 Hen. 4. tit. Protect’ 100. is thus to

be understood, that an English subject is not compellable to go out of the

realm without wages, according to the statutes of 1 Edw. 3. c. 7. 18 Edw. 3. c.

8. 18 Hen. 6. c. 19, &c. 7 Hen. 7. c. 1. 3 Hen. 8. c. 5, &c. In anno 25 Edw.

1. Bigot Earl of Norfolk and Suffolk, and Earl Marshal of England, and Bohun

Earl of Hereford and High Constable of England, did exhibit a petition to

the King in French (which I have seen anciently recorded) on | the behalf of

the Commons of England, concerning how and in what sort they were to be

employed in his Majesty’s warrs out of the realm of England: and the Record

saith, that, post multas et varias altercationes,

it was resolved, they ought to

go but in such manner and form as after was declared by the said Statutes,

which seem to be but declarative of the common Law. And this doth plentifully

and manifestly appear in our books, being truly and rightly understood. In

3 H. 6. tit. Protection 2. one had the beneﬁt of a protection, for that he was

sent into the King’s wars in comitiva,

of the protector; and it appeareth by

the Record, and by the Chronicles also, that this employment was into France;

the greatest part thereof then being under the King’s actual obedience, so as

the subjects of England were employed into France for the defence and safety

thereof: In which case it was observed, that seeing the protector, who was

Prorex,

went, the same was adjudged a voyage royal, 8 Hen. 6. fol. 16. the

Lord Talbot went with a company of Englishmen into France, then also being

for the greatest part under the actual obedience of the King, who had the

beneﬁt of their protections allowed unto them. And here were observed the

words of the writ in the Register, fol. 88. where it appeareth, that men were

employed in the King’s warrs out of the realm per praeceptum nostrum,

and

the usual words of the writ of protection be in obsequio nostro.

32 Hen. 6.

68. [Ed.: after many and various altercations.]

69. [Ed.: in the company.]

70. [Ed.: viceroy.]

71. [Ed.: by our command.]

72. [Ed.: in our following.]

[8 a]

Part Seven of the Reports184

fol. 4. it appeareth, that Englishmen were pressed into Guyenne, 44 Edw. 3.

12. into Gascoyn with the Duke of Lancaster, 17 Hen. 6. tit. Protection, into

Gascoyn with the Earl of Huntington, steward of Guienne, 11 Hen. 4. 7. into

Ireland, and out of this realm with the Duke of Gloucester and the Lord

Knolles: Vide 19 Hen. 6. 35. And it appeareth in 19 Edw. 2. tit. Avowrie 224.

26 Ass. 66. 7 Hen. 19, &c. that there was forinsecum servitium

foreign service,

which Bracton, fol. 36. calleth regale servitium;

and in Fitz. N. B. 28. that

the King may send men to serve him in his warrs beyond the sea. But thus

much (if it be not in so plain a case too much) shall sufﬁce for this point for

the King’s power, to command the service of his Subjects in his wars out of

the Realm. Whereupon it was concluded, That the ligeance of a natural-born

subject was not local, and conﬁned only to England. Now let us see what the

Law saith in time of peace, concerning the King’s protection and power of

command, as well without the realm, as within, that his Subjects in all places

may be protected from violence, and that justice may equally be administered

to all his Subjects.

| In the Register, fol. 25 b. Rex universis et singulis admirall’, castellan’, cus-

todibus castrorum, villar’, et aliorum fortalitiorum praepositis, vicecom’ major-

ibus, custumariis, custodib’ portuum, et alior’ locor’ maritimor’ ballivis, ministr’,

et aliis ﬁdel’ suis, tam in transmarinis quam in cismarinis partib’ ad quos, &c.

salutem. Sciatis, quod suscepimus in protectionem et defension’ nostram, necnon

ad salvam et securam gardiam nostram W. veniendo in regnum nostrum Angl’,

et potestatem nostram, tam per terram quam per mare cum uno valetto suo, ac

res ac bona sua quaecunque ad tractand’ cum dilecto nostro et ﬁdeli L. pro re-

demptione prisonarii ipsius L. infra regnum et potestatem nostram praed’ per sex

menses morando et exinde ad propria redeundo. Et ideo, &c. quod ipsum W. cum

valetto, rebus et bonis suis praed’ veniendo in regn’ et potestat’ nostram praed’ tam

per terr’ quam per mare ibid’ ut praedict’ est ex causa antedicta morando, et exinde

ad propria redeundo, manuteneatis, protegatis, et defendatis; non inferentes, &c.

seu gravamen. Et si quid eis forisfactum, &c. reformari faciatis. In cujus, &c. per

sex menses duratur’. T. &c.

In which writ 3. things are to be observed: 1. that

73. [Ed.: foreign service.]

74. [Ed.: royal service.]

75. [Ed.: The King to all and singular admirals, chatelains, keepers of castles, vills and other fortresses,

provosts, sheriffs, mayors, customers, keepers of ports and other maritime places, bailiffs, ministers, and

others his faithful subjects, both overseas and on this side of the seas, to whom [these presents shall come],

[8 b]

Calvin’s Case 185

the King hath ﬁdem et ﬁdeles in partib’ transmarinis.

2. that he hath protection’

in partib’ transmarinis.

3. that he hath potestatem in partibus transmarinis.

In the Register fo. 26. Rex universis et singulis admirallis, castellanis, custodibus

castrorum, villarum, et aliorum fortalitiorum praepositis, vicecom’ majoribus,

custumariis, custodib’ portuum, et alior’ locor’ maritimorum ballivis, ministris,

et aliis ﬁdelibus suis, tam in transmarinis quam in cismarinis partibus ad quos,

&c. salutem. Sciatis quod suscepimus in protectionem et defensionem nostram,

necnon in salvum et securum conductum nostr’ I. valettum P. et L. Burgensium

de Lyons obsidum nostrorum, qui de licentia nostra ad partes transmarinas pro-

fecturus est, pro ﬁnantia magistrorum suorum praedict’ obtinenda vel deferenda,

eundo ad partes praedictas ibidem morando, et exinde in Angl’ redeundo. Et ideo

vobis mandamus, quod eidem I. eundo ad partes praed’ ibidem morando, et exinde

in Angl’ redeundo, ut praed’ est, in persona, bonis, aut rebus suis, non inferatis,

seu quantum in vobis est ab aliis inferri permittatis injuriam, molestiam, &c. aut

gravamen. Sed eum potius salvum et securum conductum, cum per loca passus,

seu districtus vestros transierit, et super hoc requisiti fueritis, suis sumptibus habere

faciatis. Et si quid eis forisfactum fuerit, &c. reformari faciatis. In cujus, &c. per

tres ann’ durat’ T. &c.

And certainly this was, when Lyons in France (bor-

greeting. Know ye that we have taken into our protection and defence, and also under our security and

safeguard, W., on his coming into our realm of England and into our power, both by land and by sea,

with one yeoman (or valet), and whatsoever his things and goods, to remain for six months in order to

treat with our beloved and faithful L. for the redemption of a prisoner of him the said L. within our realm

and power, and then to return from thence to his own country. And therefore [we command you] etc.

that you support, protect and defend the selfsame W. with his yeoman, things and goods aforesaid, coming

into our realm and power aforesaid both by land and by sea and there remaining as aforesaid for the

aforesaid cause, and returning from thence to his own country, not imposing [upon them injury] etc. or

grievance. And if any wrong is done to them etc. you shall reform it. In [witness] whereof etc.; to last for

six months. Witness, etc.]

76. [Ed.: allegiance (literally “faith”) and faithful subjects in parts [lands] beyond the seas.]

77. [Ed.: protection in parts [lands] beyond the seas.]

78. [Ed.: power in parts [lands] beyond the seas.]

79. [Ed.: The king to all and singular admirals, chatelains, keepers of castles, vills and other fortresses,

provosts, sheriffs, mayors, customers, keepers of ports and other maritime places, bailiffs, ministers, and

others his faithful subjects, both overseas and on this side of the seas, to whom [these presents shall come],

greeting. Know ye that we have taken into our protection and defence, and also under our sure and safe

conduct, J. the yeoman (or valet) of P. and L., burgesses of Lyons, our hostages, who by our licence is

setting out to parts beyond the seas to obtain or bring his masters’ money, while he is going to the parts

aforesaid, staying there, and returning from thence into England. And therefore we command you not to

lay any injury, molestation etc. or grievance upon the same J. while going to the parts aforesaid, staying

Part Seven of the Reports186

dering upon Burgundy, an ancient friend to England) was under the actual

obedience of King Henry the 6. For the King commanded ﬁdelibus suis,

his

faithfull Magistrates there, | that if any injury were there done, it should be

by them reformed and redressed, and that they should protect the party in

his person and goods in peace. In the Register, fol. 26. two other writs: Rex

omnibus seneschallis, majoribus, juratis, paribus praepositis, ballivis et ﬁdelibus

suis in ducatu Aquitaniae ad quos, &c. salutem. Quia dilecti nobis T. et A. cives

civitat’ Burdegal’ coram nobis in Cancellar’ nost’ Angl’ et Aquitan’ jura sua pro-

sequentes, et metuentes ex verisimilibus conjecturis per quosdam sibi comminantes

tam in corpore quam in rebus suis, sibi posse grave damnum inferri, supplicaverunt

nobis sibi de protectione regia providere: nos volentes dictos T. et A. ab oppres-

sionibus indebitis praeservare, suscepimus ipsos T. et A. res ac justas possessiones

et bona sua quaecunque in protectionem et salvam gardiam nostram specialem.

Et vobis et cuilibet vestrum injungimus et mandamus, quod ipsos T. et A. familias,

res ac bona sua quaecunque a violentiis et gravaminibus indebitis defendatis, et

ipsos in justis possessionibus suis manuteneatis. Et si quid in praejudicium hujus

protectionis et salvae gardiae nost’ attentatum inveneritis, ad statum debitum

reducatis. Et ne quis se possit per ignorantiam excusare praesentem protectionem

et salvam gardiam nostram faciatis in locis de quibus requisiti fueritis infra district’

vestrum publice intimari, inhibentes omnibus et singulis sub poenis gravibus, ne

dictis A. et T. seu famulis suis in personis seu rebus suis, injuriam molestiam,

damnum aliquod inferant seu gravamen: et penocellas nostras in locis et bonis

ipsorum T. et A. in signum protectionis et sal’ gard’ memorat’, cum super hoc

requisiti fueritis, apponatis. In cujus, &c. dat’ in palatio nostro Westm’ sub Magni

Sigilli testimonio, sexto die Augusti anno 44 E. 3.

Rex universis et singulis sen-

there, and returning from thence into England, as above, in his person, goods or things, nor (so far as you

are able) to permit others to do so, but rather cause him to have at his own costs safe and sure conduct

as he goes through your districts and as you are thereupon requested. And if any wrong is done to them

etc., cause it to be reformed. In [witness] whereof etc.; to last for three years. Witness, etc.]

80. [Ed.: to his faithful [subjects].]

81. [Ed.: The king to all his stewards, mayors, jurats, peers, provosts, bailiffs and faithful subjects in

the duchy of Aquitaine to whom [these presents shall come], greeting. Because our beloved T. and A.,

citizens of the city of Bordeaux, pursuing their rights before us in our chancery of England and Aquitaine,

and fearing by reasonable conjectures the possibility of suffering grave damage through certain people

threatening them, both in their bodies as in their goods, have made supplication unto us to provide royal

protection: we, wishing to preserve the said T. and A. from undue oppression, have taken them the said

T. and A., their things and rightful possessions, and whatsoever their goods, into our special protection

[9 a]

Calvin’s Case 187

eschallis, constabular’ castellanis, praeposit’, minist’, et omnib’ ballivis et ﬁdelibus

suis in dominio nostro Aquitan’ constitutis ad quos, &c. salut’. Volentes G. et R.

uxorom ejus favore prosequi gratiose, ipsos G. et R. homines et familias suas ac justas

possessiones, et bona sua quaecunque, suscepimus in protectionem et defensionem

nostram, necnon in salvam gardiam nostram specialem. Et ideo vobis et cuilibet

vestrum injungimus et mandamus, quod ipsos G. et R. eorum homines, familias

suas, ac justas possessiones et bona sua quaecunque manuteneatis, protegatis, et

defendatis: non inferentes eis seu quantum in vobis est ab aliis inferri permittentes,

injuriam, molestiam, damnum, violentiam, impedimentum aliquod seu grava-

men. Et si quid eis forisfact’, injuriatum vel contra cos indebite attentatum fuerit,

id eis sine dilatione corrigi, et ad statum debitum reduci faciatis, prout ad vos et

quemlibet vestrum noveritis pertinere: penocellas super domibus suis in signum

praesentis salvae gardiae nostrae (prout moris erit) facientes. In cujus, &c. per

unum annum duratur’ T. &c.

| By all which it is manifest, that the protection

and government of the King is general over all his dominions and kingdoms,

as well in time of peace by justice, as in time of warr by the sword, and that

and safeguard. And we enjoin and command you, and each of you, that you defend them the said T. and

A., their servants, things, and whatsoever their goods, from violence and undue grievance, and maintain

them in their rightful possessions. And if anything in prejudice of this our protection and safeguard should

come to your attention, return things to their due condition. And that no one may excuse themselves by

ignorance of our present protection and safeguard, cause it to be publicly announced in places where you

shall be requested within your districts, forbidding all and singular under grievous penalties that they should

not inﬂict any injury, molestation, damage or grievance upon the said A. and T., or their servants, in their

persons or things; and, when you are thereunto requested, put our pensells (i.e. little banners or labels)

on the places and goods of the selfsame T. and A., as a sign of protection and safeguard being remembered.

In [witness] whereof, etc. Given in our palace of Westminster under the witness of the great seal, on the

sixth day of August in forty-fourth year of Edward III.]

82. [Ed.: The king to all and singular his stewards, constables, chatelains, provosts, ministers and all

bailiffs and faithful subjects in our lordship of Aquitaine to whom [these presents shall come], greeting.

We, wishing graciously to favour G., and R. his wife, have taken them the said G. and R. and their servants

and rightful possessions, and whatsoever their goods, into our protection and defence and into our special

safeguard. Therefore we enjoin and command you, and each of you, that you support, protect and defend

them the said G. and R., their men and servants, their rightful possessions, and whatsoever their goods,

not inﬂicting upon them or (as far as you are able) permitting others to inﬂict upon them any injury,

molestation, damage, violence, hindrance or grievance. And if any wrong is done to them or unduly

committed against them, you are to correct it without delay and cause things to be returned to their due

condition, as far as you know to belong to you and each of you, making pensells (i.e. little banners) upon

their houses, as the custom is, as a token of our present safeguard. In [witness] whereof, etc.; to last for

one year. Witness, etc.]

[9 b]

Part Seven of the Reports188

all be at his command, and under his obedience. Now seeing power and pro-

tection draweth ligeance, it followeth, that seeing the King’s power, command

and protection, extendeth out of England, that ligeance cannot be local, or

conﬁned within the bounds thereof. He that is abjured the Realm, Qui abjurat

regnum amittit regnum, sed non Regem, amittit patriam, sed non patrem pa-

triae

: for notwithstanding the abjuration, he oweth the King his ligeance,

and he remaineth within the King’s protection; for the King may pardon and

restore him to his country again. So as seeing that ligeance is a quality of the

mind, and not conﬁned within any place; it followeth, that the plea that doth

conﬁne the ligeance of the Plaintiff to the kingdom of Scotland, infra li-

geantiam Regis regni sui Scotica, et extra ligeantiam regis regni sui Angliae,

whereby the Defendants do make one local ligeance for the natural subjects

of England, and another local ligeance for the natural subjects of Scotland,

is utterly unsufﬁcient, and against the nature and quality of natural lineage,

as often it hath been said. And Coke, chief Justice of the Court of Common

pleas, cited a ruled case out of Hingham’s Reports, Tempore E. 1. which in his

argument he shewed in Court written in parchment, in an ancient hand of

that time. Constance de N. brought a writ of Ayel against Roger de Cobledike,

and others, named in the writ, and counted that from the seisin of Roger her

grandfather it descended to Gilbert his son, and from Gilbert to Constance,

as daughter and heir. Sutton dit, Sir, el ne doit este responde, pur ceo que el est

Francois et nient de la ligeance ne a la foy Dengliterre, et demaund judgement

si el doit action aver:

that she is not to be answered, for that she is a French

woman, and not of the ligeance, nor of the faith of England, and demand

judgment, if she this action ought to have. Bereford (then chief Justice of the

Court of Common Pleas) by the rule of the Court disalloweth the plea, for

that it was too short, in that it referred ligeance and faith to England, and

not to the King: and thereupon Sutton saith as followeth; Sir, nous voilomous

averre, que el ne est my de la ligeance Dengliterre, ne a la foy le Roy et demaund

83. [Ed.: He who abjures the realm leaves the realm but not the king; he leaves the country, but not

the father of the country.]

84. [Ed.: within the allegiance of the king of his realm of Scotland, and outside the allegiance of the

king of his realm of England.]

85. [Ed.: Sutton said: Sir, she ought not to be answered, because she is French and not of the allegiance

or faith of England, and he demanded judgment whether she ought to have an action.]

Calvin’s Case 189

jugement, et si vous agardes que el doit este responde, nous dirromus assets:

that

is, Sir, we will aver, that she is not of the ligeance of England, nor of the faith

of the King, and demand judgment, &c. | Which later words of the plea (nor

of the faith of the King) referred faith to the king indeﬁnitely and generally,

and restrained not the same to England and thereupon the plea was allowed

for good, according to the rule of the Court: for the book saith, that afterward

the plaintiff desired leave to depart from her writ. The rule of that case of

Cobledike, did (as Coke chief Justice said) over-rule this case of Calvin, in

the very point now in question; for that the plea in this case doth not referre

faith or ligeance to the King indeﬁnitely and generally, but limiteth and res-

traineth faith and ligeance to the kingdom: Extra ligeantiam regis regni sui

Angliae,

out of the ligeance of the King of his kingdom of England; which

afterwards the Lord Chancellor and the chief Justice of the king’s Bench,

having copies of the said ancient Report, afﬁrmed in their arguments. So as

this point was thus concluded, Quod ligeantia naturalis nullis claustris coercetur

nullis metis, refraenatur, nullis ﬁnibus premitur.

4 & 5. By that which hath been said it appeareth, that this ligeance is due

only to the King; so as therein the question is not now, cui, sed quomodo

debetur.

It is true, that the King hath two capacities in him: one a natural

body, being descended of the blood royal of the Realm; and this body is of

the creation of Almighty God, and is subject to death, inﬁrmity, and such

like; the other is a politic, body or capacity, so called, because it is framed by

the policy of man (and in 21 Edw. 4. 39. b. is called a mysticall body;) and

in this capacity the King is esteemed to be immortal, invisible, not subject to

death, inﬁrmity, infancy, nonage, &c. Vide Pl. Com. in the case of The Lord

Barkley, 238. and in the case of The Duchy 213. 6 Edw. 3. 291. and 26 Ass pl.

54. Now seeing the King hath but one person, and several capacities, and one

politique capacitie for the Realm of England, and another for the Realm of

Scotland; it is necessary to be considered, to which capacity ligeance is due.

86. [Ed.: Sir, we will aver that she is not of the allegiance of England, nor of the king’s faith, and we

demand judgment. And if you award that she should be answered, we will have enough to say.]

87. [Ed.: Outside the king’s allegiance of his realm of England.]

88. [Ed.: That natural allegiance is not conﬁned by any enclosures, nor restrained by any bounds, nor

constrained by any limits.]

89. [Ed.: [not now] to whom, but in what way, it is owed.]

[10 a]

To whom

and how

ligeance is

due.

Part Seven of the Reports190

And it was resolved, that it was due to the natural person of the King (which

is ever accompanied with the politique capacity, and the politique capacity as

it were appropriated to the natural capacity) and it is not due to the politique

capacity only, that is, to his crown or kingdom distinct from his natural ca-

pacity, and that for divers reasons. First, every subject (as it hath been afﬁrmed

by those that argued against the Plaintiff) is presumed by Law to be sworn

to the King, which is to his natural person; and likewise the King is sworn

to his subjects (as it appeareth in Bracton, lib. 3. de actionibus, cap. 9. fol.

107.) which oath he taketh in his natural | person: for the politique capacity

is invisible and immortal; nay, the politique body hath no soul, for it is framed

by the policy of man. 2. In all indictments of Treason, when any doe intend

or compass mortem et destructionem domini Regis

(which must needs be un-

derstood of his natural body, for his politique body is immortal, and not subject

to death) the indictment concludeth, contra ligeantiae suae debitum;

ergo,

the ligeance is due to the natural body. Vid Fit. Justice of Peace 53. et Pl. Com.

384. in The Earl of Leicester’s case. 3. It is true, that the King in genere

dieth

not, but, no question, in individuo

he dieth: as for example, Henry the

eighth, Edward the sixth &c. and Queen Elizabeth died, otherwise you should

have many kings at once. In 2 et 3 Ph. et Mar. Dyer 128. one Constable dis-

persed divers bills in the streets in the night, in which was written, that King

Edward the sixth was alive, & in France, &c: and in Coeman street in London,

he pointed to a young man, and said, that he was King Edward the sixth. And

this being spoken de individuo (and accompanied with other circumstances)

was resolved to be high Treason; for the which Constable was attainted and

executed. 4. A body politique (being invisible) can as a body politique neither

make nor take homage: Vide 33 Hen. 8. tit. Fealty, Brook. 5. In ﬁde,

in faith

or ligeance nothing ought to be feigned, but ought to be ex ﬁde non ﬁcta.

6. The King holdeth the kingdom of England by birthright inherent, by de-

scent from the blood royal, whereupon succession doth attend; and therefore

it is usually said, to the King, his heirs, and successors, wherein heirs is ﬁrst

90. [Ed.: the death and destruction of the lord king.]

91. [Ed.: against the duty of his allegiance.]

92. [Ed.: in the abstract (or literally, “of his genus”).]

93. [Ed.: in the individual.]

94. [Ed.: In faith.]

95. [Ed.: from unfeigned faith.]

[10 b]

Calvin’s Case 191

named, and successors is attendant upon heirs. And yet in our ancient books,

succession and successor are taken for hereditance and heirs. Bracton lib. 2.

de acquirendo rerum dominio c. 29. Et sciend’ est quod haereditas est successio

in universum jus quod defunctus antecessor habuit, ex causa quacunque acquis-

itionis vel successionis, et alibi afﬁnitatis jure nulla successio permittitur.

But

the title is by descent, by Queen Elizabeth’s death the crown and kingdom

of England descended to his Majesty, and he was fully and absolutely thereby

King, without any essential ceremony or act to be done ex post facto:

for

coronation is but a royal ornament and solemnization of the royal descent,

but no part of the title. In the ﬁrst year of his Majesties reign, before his

Majesties coronation, Watson and Clarke, Seminary priests, and others, were

of opinion, that his Majesty was no complete and absolute King before his

coronation, but that coronation did add a conﬁrmation and perfection to the

descent; and therefore (observe their damnable and damned consequent) that

they by | strength and power might before his coronation take him and his

royal issue into their possession, keep him prisoner in the Tower, remove such

counsellors and great ofﬁcers as pleased them, and constitute others in their

places, &c. And that these and other acts of like nature could not be Treason

against his Majesty, before he were a crowned King. But it was clearly resolved

by all the Judges of England, that presently by the descent his Majesty was

completely and absolutely King, without any essential ceremony or act to be

done ex post facto, and that coronation was but a Royal ornament, and outward

solemnization of the descent. And this appeareth evidently by inﬁnite pre-

cedents and book cases, as (taking one example in a case so clear for all) King

Henry the Sixth was not crowned until the eighth year of his reign, and yet

divers men before his coronation were attainted of Treason, of Felony, &c.

and he was as absolute and complete a King, both for matters of judicature,

as for grants, &c. before his coronation, as he was after, as it appeareth in the

Reports of the 1, 2, 3, 4, 5, 6, and 7 years of the same King. And the like might

be produced for many other Kings of this Realm, which for brevity in a case

so clear I omit. But which it manifestly appeareth, that by the Laws of England

96. [Ed.: And it is to be known that inheritance is a succession to all the right that the deceased ancestor

had, by reason of whatsoever acquisition or succession, and elsewhere no succession is permitted by right

of afﬁnity.]

97. [Ed.: afterwards.]

[11 a]

Part Seven of the Reports192

there can be no inter regnum within the same. If the King be seised of land

by a defeasible title, and dieth seised, this descent shall toll the entry of him

that right hath, as it appeareth by 9 Edw. 4. 51. But if the next King had it

by succession, that should take away no entry, as it appeareth by Littleton fol.

97. If a disseisor of an infant convey the land to the King who dieth seised,

this descent taketh away the entry of the Infant, as it is said in 34 Hen. 6. fol.

34. 45. lib. Ass. pl. 6. Plow. Com. 234. where the case was: King Henry the

third gave a Mannor to his brother the Earl of Cornwall in tail (at what time

the same was a fee simple conditional) King Henry the third dyed, the Earl

before the Statute of Donis conditional’ (having no issue) by deed exchanged

the Mannor with warranty for other lands in fee, and died, without issue, and

the warranty and assets descended upon his nephew King Edward the ﬁrst;

and it was adjudged, that this warranty and assets, which descended upon the

natural person of the King, barred him of the possibility of reverter. In the

reign of Edward the second the Spencers, the father and the son, to cover

the Treason hatched in their hearts, invented this damnable and damned opin-

ion, That homage and oath of ligeance was more by reason of the King’s Crown

(that is, of his politic capacity) than by reason of the person of the | King,

upon which opinion they inferred execrable and detestable consequences:

1. If the King do not demean himself by reason in the right of his Crown, his

lieges are bound by oath to remove the King: 2. Seeing that the King could

not be reformed by suit of Law that ought to be done per aspert.

3. That his

lieges be bound to govern in aid of him, and in default of him. All which

were condemned by two Parliaments, one in the reign of Edward the second

called Exilium Hugonis le Spencer, and the other in Anno 1. Ed. 3. cap 1.

Bracton lib. 2. de acquirendo rerum dominio,

c. 24. fol 55, saith thus, Est enim

corona Regis facere justitiam et judic’, et tenere pacem, et sine quibus corona

consistere non potest nec tenere; hujusmodi autem jura sive jurisdictiones ad per-

sonas vel tenementa transferri non poterunt, nec a privata persona possideri, nec

usus nec executio juris, nisi hoc datum fuit ei desuper, sicut jurisdictio delegata

delegari non poterit quin ordinaria remaneat cum ipso Rege. Et lib. 3. de ac-

tionibus, cap. 9. fol. 107. Separare autem debet Rex, cum sit Dei vicarius in terra,

98. [Ed.: by the sword.]

99. [Ed.: The banishment of Hugh Despenser; of Acquiring the Dominion of Things.]

[11 b]

Calvin’s Case 193

jus ab injuria, oequam ab iniquo, ut omnes sibi subjecti honeste vivant, et quod

nullus alium laedat, et quod unicuique quod suum fuerit recta contributione

reddatur.

100

In respect whereof one saith, That Corona est quasi cor ornans,

cujus ornamenta sunt misericordia et justicia.

101

And therefore a King’s Crown

is an Hieroglyphick of the Lawes, where Justice, &c. is administered; for so

saith P. Val. lib. 41. pag. 400. Coronam dicimus legis judicium esse, propterea

quod certis est vinculis complicata, quibus vita nostra veluti religata coercetur.

102

Therefore if you take that which is signiﬁed by the Crown, that is, to do Justice

and Judgment, to maintain the Peace of the Land, &c. to separate right from

wrong, and the good from the ill; that is to be understood of that capacity

of the King, that in rei veritate

103

hath capacity, and is adorned and indued

with indowments as well of the soul as of the body, and thereby able to doe

Justice and Judgment according to right and equity, and to maintain the peace,

&c. and to ﬁnd out and discern the truth, and not of the invisible and immortal

capacity that hath no such indowments; for of itself it hath neither soul nor

body. And where divers Books and Acts of Parliament speak of the Ligeance

of England, as 31 Edw. 3. tit. Cosinage 5. 42 Edw. 3. 2. 13 Edw. 3. tit. Br. 677.

25 Edw. 3. Statut. de natis ultra mare. All these and other speaking brieﬂy in

a vulgar manner (for loquendum ut vulgus

104

) and not pleading (for sentiendum

ut docti

105

) are to be understood of the Ligeance due by the people of England

to the King; for no man will afﬁrm, that England itself, taking it for the

Continent thereof, doth owe any | ligeance or faith, or that any faith or ligeance

100. [Ed.: For the king’s crown is to do justice, give judgment, and keep the peace, and without these

things the crown can neither subsist or endure. These rights or jurisdictions cannot be transferred to persons

or tenements, nor possessed by a private person—neither the usage nor the execution of the right—unless

it was given to him from above as a delegated jurisdiction; and jurisdiction cannot be delegated without

an ordinary jurisdiction remaining in the king himself.

And in book III, ch. 9, fo. 107: The king, since he is the vicar of God on earth, must distinguish right

from wrong, equity from iniquity, that all his subjects may live uprightly, that none of them should injure

each other, and that by a just award each may be restored to that which is his.]

101. [Ed.: Corona (the crown) is, as it were, cor ornans (an ornamenting heart), the ornaments whereof

are mercy and justice.]

102. [Ed.: We call the judgment the crown of the law, because it is tied up with certain bonds whereby

our lives are coerced as if by ties.]

103. [Ed.: in truth.]

104. [Ed.: we must speak as the common people.]

105. [Ed.: we must plead as the learned.]

[12 a]

Part Seven of the Reports194

should be due to it: but it manifestly appeareth, that the ligeance or faith of

the Subject is proprium quarto modo,

106

to the King, omni, soli, et semper.

107

And oftentimes in the Reports of our Book cases, and in Acts of Parliament

also, the Crown or Kingdome is taken for the King himself, as in Fitzh. Natur.

Brev. fol. 5. Tenure in capite

108

is a Tenure of the Crown, and is a Seignorie

in grosse, that is, of the person of the King: and so is 30 Hen. 8. Dyer fol.

44, 45. a Tenure in chief, as of the Crown, is merely a Tenure of the person

of the King, and therewith agreeth 28 Henry 8. tit. Tenure Br. 65. The Statute

of 4 Hen. 5. cap. ultimo gave Priors aliens, which were conventual to the King

and his heirs, by which gift saith 34 Hen. 6. 34. the same were annexed to

the Crown. And in the said Act of 25 Edw. 3. whereas it is said in the beginning,

within the Ligeance of England, it is twice afterward said in the same Act

within the Ligeance of the King, and yet all one Ligeance due to the King.

So in 42 Edw. 3. fol. 2. where it is ﬁrst said, the Ligeance of England, it is

afterward in the same case called, the Ligeance of the King; wherein though

they used several manner and phrases of speech, yet they intended one and

the same Ligeance. So in our usual Commission of Assise, of Gaol delivery,

of Oyer and Terminer, of the Peace, &c. power is given to execute Justice,

Secundum legem et consuetudinem regni nostri Angliae;

109

and yet Littleton lib.

2. in his chapter of Villenage, fol. 43. in disabling of a man that is attainted

in a Praemunire

110

saith, That the same is the King’s Law; and so doth the

111

style the same.

The reasons and cause wherefore by the policy of the Law the King is a

body politique, are three, viz. 1. causa majestatis,

112

2. causa necessitatis,

113

and

3. causa utilitatis.

114

First, causa majestatis, the King cannot give or take but

by matter of Record for the dignity of his person. Secondly, causa necessitatis,

106. [Ed.: appropriate in the fourth way. (legal allegiance)]

107. [Ed.: all, only and always.]

108. [Ed.: in chief.]

109. [Ed.: according to the law and custom of our realm of England.]

110. [Ed.: procedure for conviction for premunire.]

111. [Ed.: Writ to enforce crown rights in a living.]

112. [Ed.: by reason of majesty.]

113. [Ed.: by reason of necessity.]

114. [Ed.: by reason of utility.]

i.e. Of the

politic ca-

pacity.

The reasons

wherefore

the King

by judg-

ment of

law with a

politic ca-

pacity.

Calvin’s Case 195

as to avoyd the attainder of him that hath right to the Crown, as it appeareth

in 1 Hen. 7. 4. lest in the interim there should be an Interregnum,

115

which

the Law will not suffer. Also by force of this politique capacity, though the

King be within age, yet may he make Leases and other Grants, and the same

shall bind him; otherwise his Revenue should decay, and the King should

not be able to reward service, &c. Lastly, causa utilitatis, as when lands and

possessions descend from his collateral Ancestors, being Subjects, as from the

Earl | of March, &c. to the King, now is the King seised of the same in jure

coronae,

116

in his politique capacity; for which cause the same shall go with

the Crown; and therefore, albeit Queen Elizabeth was of the half blood to

Queen Mary, yet she in her body politique enjoyed all those fee simple lands,

as by the Law she ought, & no collateral cousin of the whole blood to Queen.

Mary ought to have the same. And these are the causes wherefore by the policy

of the Law the King is made a body politique: So as for these special purposes

the Law makes him a body politique, immortal, and invisible, whereunto our

liegance cannot appertain. But to conclude this point, our liegance is due to

our natural liege Sovereign, descended of the blood Royal of the Kings of this

Realm. And thus much of the ﬁrst general part de Ligeantiaˆ.

117

Now followeth the second part, de Legibus, wherein these parts were con-

sidered: First, That the ligeance or faith of the Subject is due unto the King

by the Law of Nature: Secondly, That the Law of Nature is part of the Law

of England: Thirdly, That the Law of Nature was before any Judicial or Mu-

nicipal Law: Fourthly, That the Law of Nature is Immutable.

The Law of Nature is that which God at the time of creation of the nature

of man infused into his heart, for his preservation and direction; and this is

lex aeterna,

118

the Moral Law, called also the Law of Nature. And by this Law,

written with the ﬁnger of God in the heart of man, were the people of God

a long time governed, before that Law was written by Moses, who was the

ﬁrst Reporter or Writer of Law in the world. The Apostle in the second Chapter

to the Romans saith, Cum enim gentes quae legem non habent naturaliter ea

116. [Ed.: by the law of the Crown,]

115. [Ed.: interregnum (interval between kings).]

117. [Ed.: concerning allegiance.]

118. [Ed.: eternal law.]

[12 b]

De legibus.

The second

general

part.

The Law

of Nature.

Part Seven of the Reports196

quae legis sunt faciunt.

119

And this is within that commandment of the Moral

Law, Honora patrem,

120

which doubtless doth extend to him that is pater pa-

triae

121

And the Apostle saith, Omnis anima potestatibus sublimioribus subdita

sit.

122

And these be the words of the great Divine, Hoc Deus in Sacris Scripturis

jubet. hoc lex naturae dictari, ut quilibet subditus obediat superio,

123

And Ar-

istotle, Nature’s Secretary, Lib. 5. Aethic. saith, That jus naturale est, quod apud

omnes homines eandem habet potentiam.

124

And herewith doth agree Bracton,

lib. 1. cap. 5. and Fortescue, cap. 8, 12, 13, and 16. Doctor and Student, cap.

2. and 4. And the reason hereof is, for that God and Nature is one | to all,

and therefore the Law of God and Nature is one to all. By this Law of Nature

is the Faith, Ligeance, and Obedience of the Subject due to his Sovereign or

Superiour. And Aristotle 1. Politicorum proveth, that to Command and to

Obey is of Nature, and that Magistracy is of Nature: For whatsoever is nec-

essary and proﬁtable for the preservation of the society of man, is due by the

Law of nature: But Magistracy and Government are necessary and proﬁtable

for the Preservation of the society of man; therefore Magistracy and Govern-

ment are of Nature. And herewith accordeth Tully lib. 3. de legibus, Sine imperio

nec domus ulla, nec civitas, nec gens, nec hominum universum genus stare, nec

ipse denique mundus potest.

125

This Law of Nature, which indeed is the eternal

Law of the Creator, infused into the heart of the creature at the time of his

creation, was two thousand years before any Laws written, and before any

Judicial or Municipal Laws. And certain it is, That before Judicial or Municipal

Laws were made, Kings did decide causes according to natural equity, and

were not tied to any rule or formality of Law, but did dare jura.

126

And this

appeareth by Fortescue, cap. 12 & 13. and by Virgil that Philosophical Poet,

7th Aeneid.

119. [Ed.: for people who have no law naturally do those things which are of law.]

120. [Ed.: Honour [thy] father.]

121. [Ed.: father of the country.]

122. [Ed.: Every soul is subject to more sublime powers.]

123. [Ed.: Here God in the holy scriptures wills it to be laid down as the law of nature that every subject

should obey the sovereign.]

124. [Ed.: The law of nature is that which has the same power among all men.]

125. [Ed.: Without government, no house, no city, no people, no kind of man, can stand, nor in the

course of time can the world itself.]

126. [Ed.: give the laws.]

[13 a]

Calvin’s Case 197

Hoc Priami gestamen erat, cum jura vocatis

More daret populis.

127

And 5th Aeneid.

——— Gaudet regno Trojanus Acestes,

Indicitque forum et patribus dat jura vocatis.

128

And Pomponius lib. 2. cap. de origine juris, afﬁrmeth, that in Tarquinius

Superbus’s time there was no Civile Law written, and that Papirius reduced

certain observations into writing, which was called Jus Civile Papirianum.

Now the reason wherefore Laws were made and published, appeareth in For-

tescue cap. 13. and in Tully lib. 2. ofﬁciorum: At cum jus aequabile ab uno viro

homines non consequerentur, inventae sunt leges.

129

Now it appeareth by de-

monstrative reason, that Ligeance, Faith, and Obedience of the Subject to the

Sovereign, was before any Municipal or Judicial Laws: 1. For that Government

and Subjection were long before any Municipal or Judicial Laws: 2. For that

it had been in vain to have prescribed Laws to any, but to such as owed

Obedience, Faith, and Ligeance before, in respect whereof they were bound

to obey and observe them: Frustra enim | feruntur leges nisi subditis et obe-

dientibus.

130

Seeing then that Faith, Obedience, and Ligeance, are due by the

Law of Nature, it followeth that the same cannot be changed or taken away;

for albeit Judicial or Municipal Laws have inﬂicted and imposed in several

places, or at several times, divers and several punishments and penalties for

breach or not observance of the Law of Nature (for that law onely consisted

in commanding or prohibiting, without any certain punishment or penalty),

yet the very Law of Nature itself, never was nor could be altered or changed.

And therefore it is certainly true, that Jura naturalia sunt immutabilia.

131

And

herewith agreeth Bracton lib. 1. cap. 5. and Doctor and Student cap. 5 and

6. And this appeareth plainly and plentifully in our Books.

127. [Ed.: This was Priam’s burden, when, after his wont, he gave laws to the assembled peoples. [Virgil,

Aeneid, 7. 246.].]

128. [Ed.: Trojan Acestes delights in his kingdom, proclaims a court, and gives laws to the assembled

senate (lit. fathers). [Virgil, Aeneid, 5. 757.].]

129. [Ed.: Since men will not follow a law devised by one man, though it is equitable, [written] laws

have been invented.]

130. [Ed.: It is in vain to make laws unless there are subjects and persons who will obey them.]

131. [Ed.: The laws of nature are immutable.]

[13 b]

Part Seven of the Reports198

If a man hath a Ward by reason of a Seigniory, and is Outlawed, he forfeiteth

the Wardship to the King: But if a man hath the Wardship of his own Son

or Daughter, which is his heir apparent, and is Outlawed, he doth not forfeit

this Wardship; for nature hath annexed it to the person of the Father, as it

appeareth in 33 Hen. 6. 55. Et bonus Rex nihil a bono patre differt, et patria

dicitur a patre, quia habet communem patrem, qui est pater patriae.

132

In the

same manner, maris et foeminae conjunctio est de jure naturae,

133

as Bracton in

the same book and chapter, and St. Germin in his book of the Doctor and

Student, cap. 5., do hold. Now, if he that is attainted of Treason or Felony,

be slain by one that hath no authority, or executed by him that hath authority,

but pursueth not his warrant, in this case his eldest son can have no appeal,

for he must bring his appeal as heir, which being ex provisione hominis,

134

loseth it by the attainder of his Father: but his Wife (if any he have) shall have

an appeal, because she is to have her appeal as Wife, which she remaineth

notwithstanding the attainder, because maris et foeminae conjunctio

135

is de

jure naturae,

136

and therefore (it being to be intended of true and right Mat-

rimony) is indissoluble: and this is proved by the book in 33 Hen. 6. fol. 57.

So if there be Mother and Daughter, and the Daughter is attainted of felony,

now cannot she be heir to her Mother for the cause aforesaid; yet after her

attainder if she kill her Mother, this is Paricide and Petit treason; for she

remaineth her daughter, for that is of nature, and herewith agreeth 21 Edw.

3. 17. b. If a man be attainted of Felony or Treason, he hath lost the King’s

legal protection, for he is thereby utterly disabled to sue any action real or

personal (which is a greater disability than an alien in league hath) and yet

such a person so attainted hath not lost that | protection which by the law of

nature is given to the King; for that is indelebilis et immutabilis,

137

and therefore

the King may protect and pardon him, and if any man kill him without

warrant, he shall be punished by the Law as a Manslayer; and thereunto ac-

cordeth 4 Edw. 4. and 35 Hen. 6. 57. 2 Ass. pl. 3. By the statute of 25 Edw.

132. [Ed.: A good king is not different from a good father, and patria (country) is so called from pater

(father), because it has a common father who is pater patriae (father of the country).]

133. [Ed.: The union of husband and wife is by the law of nature,]

134. [Ed.: by the provision of man.]

135. [Ed.: the union of husband and wife.]

136. [Ed.: by the law of nature,]

137. [Ed.: indelible and immutable.]

[14 a]

Calvin’s Case 199

3. cap. 22. a man attainted in a Praemunire,

138

is by expresse words out of the

King’s protection generally; and yet this extendeth onely to legal protection,

as it appeareth by Littleton, fol. 43. for the Parliament could not take away

that protection which the Law of Nature giveth unto him; and therefore,

notwithstanding that Statute, the King may protect and pardon him. And

though by that Statute it was further enacted, That it should be done with

him as with an enemy, by which words any man might have slain such a

person (as it is holden in 24 Hen. 8. tit. Coron. Br. 197.) until the statute

made anno 5 Eliz. cap. 1. yet the King might protect and pardon him. A man

Outlawed is out of the beneﬁt of the Municipal Law; for so saith Fitzh. Nat.

Brev. 161. Utlagatus est quasi extra legem positus:

139

and Bracton lib. 3. tract.

2. cap 11. saith, that caput geret lupinum;

140

and yet is he not out either of his

natural ligeance, or of the King’s natural protection; for neither of them are

tyed to Municipal Laws, but is due by the Law of Nature, which (as hath

been said) was long before any Judicial or Municipal Laws. And therefore if

a man were Outlawed for Felony, yet was he within the King’s natural pro-

tection, for no man but the Sheriff could execute him, as it is adjudged in 2

lib. Ass. pl. 3. Every subject is by his natural Ligeance bound to obey and

serve his Sovereign, &c. It is enacted by the Parliament of 23 Hen. 6. that no

man should serve the King as Sheriff of any County, above one year, and that,

notwithstanding any clause of non obstante

141

to the contrary, that is to say,

notwithstanding that the King should expressly dispense with the said Statute:

howbeit it is agreed in 2 Hen. 7. that against the expresse purview of that act,

the king may by a special Non obstante dispense with that act, for that the act

could not barr the King of the service of his subject, which the law of nature

did give unto him. By these and many other cases that might be cited out of

our books, it appeareth, how plentiful the authorities of our Laws be in this

matter. Wherefore to conclude this point (and to exclude all that hath been

or could be objected against it) if the obedience and ligeance of the subject

to his Sovereign be due by the Law of nature, if that law be parcel of the Laws,

as well of England, as of all other nations, and is immutable, and that Post-

138. [Ed.: Writ against those who introduce a foreign power to the Kingdom; used to regulate Roman

Catholics.]

139. [Ed.: An outlaw is, as it were, put outside the law.]

140. [Ed.: he bears the head of the wolf.]

141. [Ed.: notwithstanding, words commencing a writ relieving someone of an obligation or power.]

Part Seven of the Reports200

nati

142

and we of England are united by birth right, | in obedience and ligeance

(which is the true cause of natural subjection) by the law of nature; It followeth,

that Calvin the Plaintiff being born under one ligeance to one King, cannot

be an alien born; And there is great reason, that the Law of nature should

direct this case, wherein ﬁve natural operations are remarkable; First the King

hath the crown of England by birth right, being naturally procreated of the

blood royal of this Realm; Secondly, Calvin the Plaintiff naturalized by pro-

creation and birth right, since the descent of the Crown of England; Thirdly,

ligeance and obedience of the subject to the Sovereign, due by the law of

nature; Fourthly, protection and government due by the law of nature; Fifthly,

this case, in the opinion of divers, was more doubtful in the beginning, but

the further it proceeded, the cleerer and stronger it grew; and therefore the

doubt grew from some violent passion, and not from any reason grounded

upon the law of nature, quia quanto magis violentus motus (qui ﬁt contra na-

turam) appropinquat ad suum ﬁnem, tanto debiliores et tardiores sunt ejus motus;

sed naturalis motus, quanto magis appropinquat at suum ﬁnem, tanto fortiores

et velociores sunt ejus motus.

143

Hereby it appeareth how weak the objection

grounded upon the rule of Quanto duo jura concurrunt in una personuˆ, &c.

144

is: For that rule holdeth not in personal things, that is, when two persons are

necessarily and inevitably required by law, (as in the case of an alien born there

is;) and therefore no man will say, that now the King of England can make

warr or league with the King of Scotland, et sic de caeteris:

145

and so in case

of an alien born, you must of necessity have two several ligeances to two several

persons. And to conclude this point concerning laws, Non adservatur diversitas

regnor’ sed regnant’, non patriarum, sed patrum patriar’, non coronarum, sed

coronatorum, non legum municipalium, sed regum majestatum.

146

And therefore

thus were directly and clearly answered, as well the objections drawn from

the severalty of the kingdoms, seeing there is but one head of both, and the

Postnati and us joyned in ligeance to that one head, which is copula et tanquam

142. [Ed.: those born after [the union].]

143. [Ed.: Because a violent passion (one made contrary to nature) becomes slower and weaker the

closer it approaches its end, whereas a natural motion becomes faster and stronger.]

144. [Ed.: When two rights come together in one person, etc.]

145. [Ed.: and thus the union.]

146. [Ed.: a distinction is not to be made of realms, but of rulers; not of countries, but of fathers of

countries; not of crowns, but of the crowned; not of municipal laws, but of king’s majesties.]

[14 b]

i.e. of

Scotland.

Calvin’s Case 201

oculus

147

of this case; as also the distinction of the Laws, seeing that ligeance

of the subjects of both kingdoms, is due to their Sovereign by one law, and

that is the Law of nature.

For the third, It is ﬁrst to be understood, that as the law hath wrought four

unions, so the law doth still make four separations. The ﬁrst union is of both

kingdoms under one natural liege sovereign King, and so acknowledged by

the Act of | Parliament of recognition. The second is an union of ligeance

and obedience of the subjects of both kingdoms, due by the law of nature to

their Sovereign: And this union doth sufﬁce to rule and over rule the case in

question; and this in substance is but a uniting of the hearts of the subjects

of both kingdoms one to another, under one head and sovereign. The third

union is an union of protection of both kingdoms, equally belonging to the

subjects of either of them: And therefore the two ﬁrst arguments or objections

drawn from two supposed several ligeances, were fallacious, for they did dis-

jungere conjungenda.

148

The fourth union and conjunction is, of the three Lions

of England, and that one of Scotland, united and quartered in one escutcheon.

Concerning the separations yet remaining: First, England and Scotland

remain several & distinct kingdoms; 2. They are governed by several judicial

or municipal laws; 3. They have several distinct and separat Parliaments; 4.

Each kingdom hath several Nobilities; For albeit a Postnatus in Scotland, or

any of his posterity, be the heir of a Nobleman of Scotland, and by his birth

is legitimated in England, yet he is none of the Peers or Nobility of England:

for his natural ligeance and obedience, due by the law of nature, maketh him

a subject, and no alien within England: but that subjection maketh him not

noble within England; for that Nobility had his original by the King’s creation,

and not of nature. And this is manifested by express authorities, grounded

upon excellent reasons in our books. If a Baron, Viscount Earl, Marquess, or

Duke of England, bring any action real or personal, and the defendantpleadeth

in abatement of the writ, that he is no Baron, Viscount, Earl, &c. and there-

upon the demandant or Plaintiff taketh issue; this issue shall not be tried by

Jury, but by the record of Parliament, whether he or his ancestor, whose heir

he is, were called to serve there as a Peer, and one of the Nobility of the Realm.

And so are our books adjudged in 22 Ass. 24. 48 Edw. 3. 30. 35 H. 6. 40. 20

147. [Ed.: a coupling, and, as it were, an eye.]

148. [Ed.: separate things which ought to be conjoined.]

The 3d

general

part con-

cerning

both king-

doms.

[15 a]

Part Seven of the Reports202

Eliz. Dyer. 360. Vide in the 6 part of my Reports, in The Countess of Rutland’s

case. So as the man, that is not de jure a Peer, or one of the Nobility, to serve

in the upper house of the Parliament of England, is not in the legal proceedings

of law accounted Noble within England. And therefore if a Countee of France

or Spain, or any other foreign kingdom, should come into England, he should

not here sue, or be sued, by the name of Countee, &c. for that he is none of

the Nobles that are members of the | upper house of the Parliament of England:

and herewith agree the book cases of 20 Edw. 4. 6. and 11 Edw. 3. tit. Bre.

473. Like law it is, and for the same reason, of an Earl or Baron of Ireland,

he is not any Peer, or of the Nobility of this Realm: and herewith agreeth the

book in 8 Rich. 2 tit. Proces. pl. ultim. where in an action of Debt process

of Outlawry was awarded against the Earl of Ormond in Ireland; which ought

not to have been, if he had been noble here. Vide Dyer 20 Eliz. 360.

But yet there is a diversity in our books worthy of observation, for the

highest and lowest dignities are universal; for if a King of a forein nation come

into England, by the leave of the King of this Realm (as it ought to be) in

this case he shall sue and be sued by the name of a King: and herewith agreeth

11 Edw. 3. tit. Br. 473. where the case was, that Alice, which was the wife of

R. de O. brought a writ of Dower against John Earl of Richmond, and the

writ was, Praecip. Johann’ Comiti Richmondiae custodi terr’ et haeredis

149

William the son of R. de. O. the tenant pleaded, that he is Duke of Britain,

not named Duke, judgment of the writ? But it is ruled, that the writ was

good, for that the Dukedom of Brittain was not within the Realm of England.

But there it is said, that if a man bring a writ against Edward Baliol, and name

him not King of Scotland, the writ shall abate for the cause aforesaid. And

hereof there is a notable precedent in Fleta lib. 2. cap. 14. where treating of

the jurisdiction of the King’s Court of Marshalsea it is said, Et haec omnia ex

ofﬁcio suo licite facere poterit (ss. seneschal’ aul’ hospitii Regis) non obstante alicujus

libertate, etiam in alieno regno dum tamen reus in hospitio Regis poterit inveniri

secundum quod contigit Paris. anno 14 Ed. 1. de Engelramo de Nogent capto in

hospitio Regis Angl’ (ipso rege tunc apud Parisiam existente) cum discis argenti

furatis recenter super facto, rege Franc’ tunc presente, et unde licet curia Regis

Franc’ de praed’ latrone per castellanum Paris. petita fuerit, habitis hic et inde

tractatibus in Consilio Regis Franc’, tandem consideratum fuit; quod Rex Angl’

149. [Ed.: command John, earl of Richmond, guardian of the land and heir.]

[15 b]

Calvin’s Case 203

illa regia praerogativa, et hospitii sui privilegio uteretur, et gauderet, qui coram

Roberto Fitz-John milite tunc hospitii Regis Angl’ seneschallo de latrocinio con-

victus, per considerationem ejus cur. fuit suspensus in patibulo sancti Germani de

Pratis.

150

Which proveth, that though the king be in forein kingdom, yet he

is judged in law a king there. The other part of the said diversity, is proved

by the book case in 20 Edw. 4. fol. 6. where, in a writ of debt brought by Sir

John Douglas knight, against Elizabeth. Molford, the defendant, demanded

judgment of the writ, for that | the Plaintiff was an Earl of Scotland, but not

of England; and that our Sovereign Lord the king had granted unto him safe

conduct, not named by his name of dignity, judgment of the writ, &c. And

there Justice Littleton giveth the rule: the Plaintiff (saith he) is an Earl in

Scotland, but not in England; and if our Sovereign Lord the king grant to a

Duke of France a safe conduct to merchandise, and enter into his Realm, if

the Duke cometh and bringeth merchandise into this land, and is to sue an

action here, he ought not to name himself Duke, for he is not a Duke in this

land, but only in France. And these be the very words of that book case: out

of which I collect three things. First, that the Plaintiff was named by the name

of a knight, wheresoever he received that degree of dignity. Vide 7 Hen. 6. 14

b. accord. Second. That an Earl of another nation or kingdom is no Earl (to

be so named in legal proceedings) within this Realm: and herewith agreeth

the book of 11 Edw. 3. The Earl of Richmond’s case before recited. Third. That

albeit the king by his Letters Patents of safe conduct doe name him Duke,

yet that appellation maketh him no Duke, to sue or to be sued by that name

within England: So as the law in these points (apparent in our books) being

observed, and rightly understood it appeareth how causeless their fear was

that the adjudging of the Plaintiff to be no alien should make a confusion of

the Nobilities of either kingdom.

150. [Ed.: And he (namely the steward of the hall of the king’s household) may lawfully do all these

things by virtue of his ofﬁce, notwithstanding any liberty—even in someone else’s realm—provided that

the offender may be found in the king’s household. For example, in Paris in the fourteenth year of Edward

I, Ingelram de Nogent happened to be arrested in the household of the king of England (the king himself

then being in Paris) with discs of stolen silver recently made, the king of France being then present: and

although the [jurisdiction of the] court of the king of France was claimed by the chaˆtelain of Paris in respect

of the aforesaid thief, whereupon a discussion occurred in the council of the king of France, at length it

was decided that the king of England should use and enjoy that royal prerogative, and the privilege of his

household; and he was convicted of larceny before Robert FitzJohn, knight, then steward of the household

of the king of England, by judgment of the court, and hanged on the gallows of St Germain des Pres.]

[16 a]

Part Seven of the Reports204

Now are we in order come to the fourth Noun (which is the fourth general

part) Alienigena; wherein six things did fall into consideration. 1. Who was

Alienigena, an alien born by the laws of England. 2. How many kinds of aliens

born there were. 3. What incidents belonged to an alien born. 4. The reason

why an alien is not capable of inheritance or freehold within England. 5.

Examples, resolutions, and judgments, reported in our books in all succession

of ages, proving the Plaintiff to be no alien. 6. Demonstrative conclusions

upon the premises, approving the same.

1. An Alien is a subject that is born out of the ligeance of the king, and

under the ligeance of another, and can have no real or personal action for or

concerning land; but in every such action the tenant or defendant may plead

that he was born in such a Country which is not within ligeance of the king,

and demand judgment if he shall be answered. And this is in effect the de-

scription which Littleton himself maketh, lib. 2. cap. 14. Villen. fol. 43. Al-

ienigena est alienae gentis seu alience ligeantiae, qui etiam | dicitur peregrinus,

alienus, exoticus, extraneus, &c. Extraneus est subditus, qui extra terram, i.e.

potestatem regis natus est.

151

And the usual and right pleading of an alien born

doth lively and truly describe and express what he is. And therein two things

are to be observed; 1. That the most usual and best pleading in this case is,

both exclusive and inclusive, viz. extra ligeantiam domini Regis, &c. et infra

ligeantiam alterius Regis,

152

as it appeareth in 9 Ed. 4. 7. Book of Entries, fol.

244, &c. which cannot possibly be pleaded in this case, for two causes; First

for that one king is Sovereign of both kingdoms; second, One ligeance is due

by both to one Sovereign, and in case of an alien there must of necessity be

several kings, and several ligeances. Secondly, no pleading was ever extra reg-

num,

153

or extra legem,

154

which are circumscribed to place, but extra ligean-

tiam,

155

which (as it hath been said) is not local or tied to any place.

It appeareth by Bracton lib. 3. tract. 2. cap. 15. fol. 134. that Canutus the

Danish king, having settled himself in this kingdom in peace, kept notwith-

standing (for the better continuance thereof ) great Armies within this Realm.

151. [Ed.: An alien born is of foreign birth or foreign allegiance, and is also called peregrinus (foreigner),

alien, exotic, stranger, etc. A stranger is a subject who is born outside the land, that is, outside the king’s

power.]

152. [Ed.: outside the allegiance of the lord king, etc. and within the allegiance of the other king.]

153. [Ed.: outside the kingdom.]

154. [Ed.: outside the law.]

155. [Ed.: outside allegiance.]

The 4th

general

Part. De

alienigena.

Who is an

alien.

[16 b]

Calvin’s Case 205

The Peers and Nobles of England, distasting this government by arms and

armies, (Odimus accipitrem quia semper vivit in armis)

156

wisely and politikely

persuaded the king, that they would provide for the safety of him and his

people, and yet his armies, carrying with them many inconveniencies, should

be withdrawn; And therefore offered, that they would consent to a law, that

whosoever should kill an alien, and be apprehended, and could not acquit

himself, he should be subject to justice: but if the manslayer ﬂed, and could

not be taken, then the Town where the man was slain should forfeit 66 marks

unto the King: and if the Town were not able to pay it, then the Hundered

should forfeit and pay the same unto the King’s treasure; whereunto the King

assented. This law was penned Quicunque occiderit Francigenam, &c.

157

not

excluding other aliens, but putting Francigena, a Frenchman for example, that

others must be like unto him, in owing several ligeance to a several Sovereign,

that is, to be extra ligeantiam Regis Angl’,

158

and infra ligeanitiam alterius

Regis.

159

And it appeareth before out of Bracton and Fleta, that both of them

use the same examples (in describing of an alien) ad ﬁdem Regis Franciae.

160

And it was holden, that except it could be proved that the party slain was an

Englishman, that he should be taken for an alien; and this was called Engle-

sherie, Englesheria, that is, a proof that the party slain was an Englishman.

(Hereupon | Canutus presently withdrew his armies, and within a while after

lost his crown, and the same was restored to his right owner.) The said law

of Englesherie continued until 14 Edw. 3. cap. 4. and then the same was by

Act of Parliament ousted and abolished. So amongst the laws of William the

First, (published by Master Lambert. fol. 125.) Omnis Francigena

161

(there put

for example as before is said, to expresse what manner of person alienigena

should be) qui tempore Edvardi propinqui nostri fuit particeps legum et con-

suetudinum Anglorum

162

(that is, made denizen) quod dicunt ad scot et lot

persolvat secundum legem Anglorum.

163

156. [Ed.: We hate the hawk because he always lives in arms.]

157. [Ed.: Whosoever should ﬁnd a Frenchman, etc.]

158. [Ed.: outside the allegiance of the king of England.]

159. [Ed.: within the allegiance of the other king.]

160. [Ed.: owing allegiance to (literally, “to the faith of”) the king of France.]

161. [Ed.: Every Frenchman . . .]

162. [Ed.: . . . who in the time of our kinsman Edward had a share in the law and custom of the

English . . .]

163. [Ed.: . . . paid what was called Scot and lot according to the law of the English.]

[17 a]

Part Seven of the Reports206

Every man is either Alienigena, an Alien born, or subditus,

164

a subject born.

Every Alien is either a friend that is in league, &c. or an enemy that is in open

war. &c. Every Alien enemy is either pro tempore, temporary for a time, or

perpetuus, perpetual, or specialiter permissus, permitted especially. Every subject

is either natus, born, or datus, given or made: And of these brieﬂy in their

order. An alien friend, as at this time, a German, a Frenchman, a Spaniard,

&c. (all the Kings and Princes in Christendom being now in league with our

Sovereign, but a Scot being a Subject, cannot be said to be a friend, nor

Scotland to be solum amici

165

) may by the Common Law have, require, and

get within this Realm, by gift, trade, or other lawfull means, any treasure, or

goods personal whatsoever, as well as any Englishman, and may maintain any

action for the same: But Lands within this Realm, or houses (but for their

necessary habitation onely) Alien friends cannot acquire, or get, nor maintain

any action real or personal, for any land or house, unless the house be for

their necessary habitation. For if they should be disabled to acquire and main-

tain these things, it were in effect to deny unto them trade and trafﬁque, which

is the life of every Island. But if this Alien become an enemy (as all Alien

friends may) then is he utterly disabled to maintain any action, or get any

thing within this Realm. And this is to be understood of a temporary Alien,

that being an enemy may be a friend, or becoming a friend may be an enemy.

But a perpetual enemy (though there be no wars by ﬁre and sword between

them) cannot maintain any action, or get any thing within this Realm. All

Inﬁdels are in Law perpetui inimici

166

perpetual enemies (for the Law presumes

not that they will be converted, that being remota potentia,

167

a remote pos-

sibility) for between them, as with the devils, whose subjects they be, and the

Christian, there is perpetual | hostility, and can be no peace; for as the Apostle

saith, 2 Cor. 15. Quae autem conventio Christi ad Belial, aut quae pars ﬁdeli

cum inﬁdeli, and the Law saith, Judaeo Christianum nullum serviat mancipium,

nefas enim est quem Christus redemit blasphemum Christi in servitutis vinculis

detinere. Register 282. Inﬁdeles sunt Christi et Christianorum inimici.

168

And

164. [Ed.: subject.]

165. [Ed.: friendly soil.]

166. [Ed.: perpetual enemies.]

167. [Ed.: a remote possibility.]

168. [Ed.: 2 Corinthians 6, 15: And what covenant has Christ with Belial? Or what has a believer to do

with an inﬁdel?

[And the law says]: No Christian should be sold in slavery to a Jew, for it is unlawful that one whom

How many

kinds of

aliens there

be.

[17 b]

Calvin’s Case 207

herewith agreeth the Book in 12 Hen. 8. fol. 4. where it is holden that a Pagan

cannot have or maintain any action at all.

And upon this ground there is a diversity between a conquest of a kingdom

of a Christian King, and the conquest of a kingdom of an Inﬁdel; for if a

King come to a Christian kingdom by conquest, seeing that he hath vitae et

necis potestatem,

169

he may at his pleasure alter and change the Laws of that

kingdom, but untill he doth make an alteration of those Laws, the ancient

Laws of that kingdom remain. But if a Christian King should conquer a king-

dom of an Inﬁdel, and bring them under his subjection, there ipso facto

170

the Laws of the Inﬁdel are abrogated, for that they be not only against Chris-

tianity, but against the Law of God and of Nature, contained in the Decalogue;

and in that case, untill certain Laws be established amongst them, the King

by himself, and such Judges as he shall appoint, shall judge them and their

causes according to natural equity, in such sort as Kings in ancient time did

with their kingdoms, before any certain Municipal Laws were given as before

hath been said. But if a king have a kingdom by title of descent, there, seeing

by the Laws of that kingdom he doth inherit the kingdom, he cannot change

those Laws of himself, without consent of Parliament. Also if a king hath a

Christian kingdom by conquest, as King Henry the second had Ireland, after

King John had given unto them, being under his obedience and subjection,

the Laws of England for the government of that country, no succeeding king

could alter the same without Parliament. And in that case while the Realm

of England and that of Ireland were governed by several Laws, any that was

born in Ireland was no Alien to the Realm of England. In which precedent

of Ireland three things are to be observed: 1. That then there had been two

descents, one from Henry the second to King Richard the ﬁrst, and from

Richard to King John, before the alteration of the Laws. 2. That albeit Ireland

was a distinct Dominion, yet the title thereof being by Conquest, the same

by judgment of law might by expresse words be bound by the Parliaments of

England. 3. That albeit no | reservation were in King John’s Charter, yet by

judgment of Law a Writ of Error did lye in the king’s bench in England, of

an erroneous Judgment in the king’s bench of Ireland. Furthermore, in the

Christ has redeemed should be held in the bonds of servitude to someone who blasphemes against Christ.

[Register, fo. 282:] Inﬁdels are enemies of Christ and of Christians.]

169. [Ed.: power of life and death.]

170. [Ed.: by that fact.]

By what

laws king-

doms got-

ten by con-

quest, &c.

shall be

governed.

Ireland.

[18 a]

Part Seven of the Reports208

case of the conquest of a Christian kingdom, as well those that served in Wars

at the Conquest, as those that remained at home for the safetie and peace of

their country, and other the King’s subjects, as well Antenati as Postnati, are

capable of Lands in the kingdom or country conquered, and may maintain

any real action, and have the like privileges and beneﬁts there, as they may

have in England.

The third kind of enemy is, inimicus permissus, an Enemy that cometh into

the Realm by the King’s safe conduct, of which you may read in the Register

fol. 25. Book of Entries, Ejectione Firmae 7, 32 Hen. 6. 23. &c. Now what

a Subject born is, appeareth at large by that which hath been said de ligeantia:

and so likewise de subdito dato,

171

of a donaison;

172

for that is the right name,

so called, because his legitimation is given unto him; for if you derive denizen

from deins nee,

173

one born within the obedience or ligeance of the King, then

such a one should be all one with a natural born subject. And it appeareth

before out of the laws of King William the First of what antiquity the making

of denizens by the King of England hath been.

3. There be regulary (unlesse it be in special cases) three incidents to a subject

born. 1. That the parents be under the actual obedience of the king. 2. That

the place of his birth be within the king’s dominion. And 3. the time of his

birth is chieﬂy to be considered; for he cannot be a subject born of one king-

dom, that was born under the ligeance of a king of another kingdom, albeit

afterwards one kingdom descend to the king of the other. For the ﬁrst, it is

termed actual obedience, because though the King of England hath absolute

right to other kingdoms or dominions, as France, Aquitain, Normandy, &c.

yet seeing the King is not in actual possession thereof, none born there since

the Crown of England was out of actual possession thereof, are Subjects to

the king of England. 2. The place is observable, but so as many times ligeance

or obedience without any place within the king’s dominions may make a

subject born, but any place within the king’s dominions may make a subject

born, but any place within the king’s dominions without obedience can never

produce a natural subject. And therefore if any of the king’s Ambassadors in

forein Nations, have children there of their wives, being English women, by

171. [Ed.: a subject by reason of gift.]

172. [Ed.: gift.]

173. [Ed.: born within [the allegiance].]

Of the in-

cidents to

an alien.

Calvin’s Case 209

the Common Laws of England they are natural born subjects, and yet they

are born out of the king’s dominions. But if Enemies should come into any

of the king’s dominions and surprise any Castle or Fort, and | possess the same

by hostility, and have issue there, that issue is no subject to the king, though

he be born within his dominions, for that he was not born under the king’s

ligeance or obedience. But the time of his birth is of the essence of a subject

born; for he cannot be a subject to the king of England, unlesse at the time

of his birth he was under the ligeance and obedience of the king. And that

is the reason that Antenati in Scotland (for that at the time of their birth they

were under the ligeance and obedience of another king) are Aliens born, in

respect of the time of their birth.

4. It followeth next in course to set down the reasons, wherefore an Alien

born is not capable of inheritance within England, and that he is not for three

reasons. 1. The secrets of the Realm might thereby be discovered. 2. The

revenues of the Realm (the sinews of War, and Ornament of Peace) should

be taken and enjoyed by strangers born. 3. It should tend to the destruction

of the Realm. Which three reasons do appear in the Statutes of 2 Hen 5. cap.

and 4 Hen. 5. cap. ultimo. But it may be demanded, Wherein doth that

destruction consist; Whereunto it is answered; First, it tends to destruction

tempore belli;

174

for then strangers might fortify themselves in the heart of the

Realm, and be ready to set ﬁre on the Commonwealth, as was excellently

shadowed by the Trojan horse in Virgil’s second Book of his Aeneid, where

a very few men in the heart of the City, did more mischief in a few hours,

than ten thousand men without the walls in ten years. Secondly, tempore

pacis,

175

for so might many aliens born get a great part of the inheritance and

freehold of the Realm, whereof there shall follow a failure of Justice (the sup-

porter of the Commonwealth) for that Aliens born cannot be returned of

Juries for the trial of Issues between the king and the subject, or between

subject and subject. And for this purpose, and many other see a Charter (wor-

thy of observation) of King Edw. and the third written to Pope Clement,

Datum apud Westm’ 26. die Sept. ann. regni nostri Franciae 4 regni vero Angliae

17.

176

174. [Ed.: in time of war.]

175. [Ed.: in time of peace.]

176. [Ed.: given at Westminster on the twenty-sixth day of September in the fourth year of our reign

of France and in the seventeenth year of our reign of England.]

[18 b]

Wherefore

an alien

born is not

capable of

lands.

Part Seven of the Reports210

5. Now are we come to the Examples, Resolutions, and Judgments of former

times; wherein two things are to be observed, First, how many Cases in our

Books do over-rule this Case in question for ubi eadem ratio ibi idem jus, et

de similibus idem est judicium.

177

2. That for want of an express Text of Law

in terminis terminantibus

178

and of examples and precedents in like cases (as

was objected by some) we are driven to determine the question by natural

reason: for it was said, si cesset lex scripta id custodiri | oportet quod moribus et

consuetudine inductum est, et si qua in re hoc defecerit, recurrendum est ad ra-

tionem.

179

But that receiveth a threefold answer: First, that there is no such

rule in the Common or Civile Law; but the true rule of the Civile Law is,

Lex scripta si cesset, id custodiri oportet quod moribus et consuetudine inductum

est, et si qua in re hoc defecerit, tunc id quod proximum et consequens ei est, et

si id non appareat, tunc jus quo urbs Romana utitur, servari oportet.

180

Secondly,

if the said imaginative rule be rightly and legally understood, it may stand for

truth: for if you intend ratio for the legal and profound reason of such as by

diligent study and long experience and observation are so learned in the Laws

of this Realm, as out of the reason of the same they can rule the case in question,

in that sense the said rule is true: But if it be intended of the reason of the

wisest man that professeth not the Laws of England, then (I say) the rule is

absurd and dangerous; for cuilibet in sua arte perito est credendum et quod

quisque norit in hoc se exerceat. Et omnes prudentes illa admittere solent quae

probantur iis qui in sua arte bene versati sunt,

181

Arist. 1. Topicorum, cap. 6.

Thirdly, there be multitudes of Examples, Precedents, Judgments, and Res-

olutions in the Laws of England, the true and unstrained reason whereof doth

decide this question; for example: the Dukedom of Acquitain, whereof Gas-

coin was parcel, and the Earldom of Poitiers, came to King Henry the second

177. [Ed.: where the reason is the same, the law is the same; and where things are similar, the judgment

is the same.]

178. [Ed.: in terms to be determined.]

179. [Ed.: if a written law ceases [to be in force], it is necessary to observe that which has been brought

in by usage and custom; and, if that is lacking, recourse may be had to reason.]

180. [Ed.: If a written law ceases [to be in force], it is necessary to observe that which has been brought

in by usage and custom; and, if that is lacking, then that which is nearest and consequent upon it; and,

if that is not apparent, then it behoves to observe the rule used by Roman law.]

181. [Ed.: credit is to be given to anyone who is an expert in his craft and therefore in each by how he

has practiced [the law]. And all prudent persons are accustomed to admit those things which are approved

by those who are well versed in their craft.]

Examples

and au-

thorities in

law.

[19 a]

Calvin’s Case 211

by the marriage of Elianor, daughter and heir of William Duke of Acquitain,

and Earl of Poitiers, which descended to Richard the First, Henry the Third,

Edward the First, Edward the Second, Edward the Third 3., &c. In 27 lib.

Ass. pl. 48. in one case there appear two Judgments and one Resolution to

be given by the Judges of both Benches in this case following. The possessions

of the Prior of Chelsey in the time of war were seised into the king’s hands,

for that the Prior was an alien born: The Prior by petition of right sued to

the king, and the effect of his Petition was, That before he came Prior of

Chelsey, he was Prior of Andover, and whiles he was Prior there, his possessions

of that Priory were likewise seised for the same cause, supposing that he was

an alien born; whereupon he sued a former petition, and alleged that he was

born in Gascoin within the ligeance of the king: which point being put in

Issue and found by Jury to be true, it was adjudged he should have restitution

of his possessions generally without mentioning of advowsons. After which

restitution, one of the | said advowsons became voyd, the Prior presented,

against whom the king brought a Quare Impedit,

182

wherein the king was

barred, and all this was contained in the later petition. And the Book saith,

that the Earle of Arundel, and Sir Guy de B. came into the Court of Common

Pleas, and demanded the opinion of the Judges of that Court concerning the

said Case, who resolved, that upon the matter aforesaid the king had no right

to seize. In which case, amongst many notable points, this one appeareth to

be adjudged and resolved, that a man born in Gascoin under the king’s li-

geance, was no alien born, as to lands and possessions within the Realm of

England, and yet England and Gascoin were several and distinct countries.

2. Inherited by several and distinct titles. 3. Governed by several and distinct

Municipal Laws, as it appeareth amongst the Records in the Tower, Rot. Vasc.

10. Edw. 1. Num. 7. 4. Out of the extent of the Great Seal of England, and

the jurisdiction of the Chancery of England. 5. The like objection might be

made for default of tryal, as hath been made against the Plaintiff. And where

it was said that Gascoin was no kingdom, and therefore it was not to be

matched to the case in hand, it was answered, that this difference was without

a diversity as to the case in question; for if the plea in the case at the Bar be

good, then without question the Prior had been an alien; for it might have

182. [Ed.: Writ to recover a presentation; a real action to determine a disputed title to an advowson,

which was the control of the patronage of an ecclesiastical ofﬁce that controlled land.]

[19 b]

Part Seven of the Reports212

been said, (as it is in the Case at Bar) that he was born extra ligeantiam regis

regni sui Angliae, et infra ligeantiam dominii sui Vasconiae,

183

and that they

were several dominions, and governed by severall Laws: But then such a conceit

was not hatched, that a king having several dominions should have several

ligeances of his subjects. Secondly, it was answered, that Gascoin was sometime

a kingdome, and likewise Millain, Burgundy, Bavaria, Brittain, and others

were, and now are become, Dukdoms. Castile, Arragon, Portugal, Barcelona,

&c. were sometime Earldoms, afterwards Dukedoms, and now kingdoms.

Bohemia and Polonia were sometime dukedoms, and now kingdoms, and

(omitting many other, and coming nearer home) Ireland was before 32 Henry

the eighth a Lordship, and now is a kingdom, and yet the King of England

was as absolute a Prince and Sovereign when he was Lord of Ireland, as now,

when he is styled King of the same. 10 Edw. 3. 41. an exchange was made

between an Englishman and a Gascoyn, of lands in England and in Gascoin;

ergo, the Gascoin was no alien, for then had he not been capable of lands in

England, 1 Hen. 4. 1. the King brought a Writ of right of ward against one

Sybill, whose husband was exiled into Gascoin; | ergo Gascoin is no parcel or

member of England, for exilium est patriae privatio, natalis soli mutatio, legum

nativarum amissio

184

4 Edw. 4. 10. the king directed his Writ out of the Chan-

cery under the Great Seal of England, to the Maior of Burdeaux (a city in

Gascoin) then being under the king’s obedience, to certify, whether one that

was outlawed here in England, was at that time in the king’s service under

him in obsequio Regis

185

whereby it appeareth, that the king’s Writ did run

into Gascoin, for it is the trial that the common Law hath appointed in that

case. But as to other cases, it is to be understood, that there be two kinds of

Writs, viz. brevia mandatoria et remedialia, et brevia mandatoria et non re-

medialia: brevia mandatoria et remedialia,

186

as Writs of Right, of Formedon,

&c.

187

of Debt, Trespasse, &c. and shortly, all Writs real and personal, whereby

the party wronged is to recover somewhat, and to be remedied for that wrong

183. [Ed.: outside the king’s allegiance of his realm of England and within the allegiance of his lordship

of Gascony.]

184. [Ed.: exile is a deprivation of country, a change of native soil, a loss of native laws.]

185. [Ed.: in the king’s following.]

186. [Ed.: mandatory and remedial writs, and mandatory but not remedial writs. Mandatory and re-

medial writs . . .]

187. [Ed.: Writ brought by a person claiming a gift in tail.]

[20 a]

Calvin’s Case 213

that was offered unto him, are returnable or determinable in some Court of

Justice within England, and to be served and executed by the Sheriffs, or other

ministers of Justice within England; and these cannot by any means extend

into any other kingdom, Country, or Nation, though that it be under the

king’s actual ligeance and obedience. But the other kind of Writs that are

mandatory, and not remedial, are not tyed to any place, but doe follow sub-

jection and ligeance, in what Country or Nation soever the Subject is, as the

king’s Writ to command any of his subjects residing in any forein Country

to return into any of the king’s own Dominions, Sub ﬁde et ligeantia quibus

nobis tenemini.

188

And so are the aforesaid mandatory Writs cited out of the

injury be offered, that the same be redressed according to the Laws and Cus-

toms of that place. Vide le Register fol. 26. Stamford Praerog. cap. 12. fol. 39.

saith, That men born in Gascoin are inheritable to lands in England. This

doth also appear by divers Acts of Parliament: for by the whole Parliament,

39 Edw. 3. cap. 16. it is agreed, that the Gascoins are of the ligeance and

subjection of the King. Vide 42 Edw. 3. cap. 2. & 28 Hen. 6. cap. 5. &c.

Guyen was another part of Aquitain, and came by the same title: and those

of Guyen were by act of Parliament in 13 Hen. 4. not imprinted, ex Rot.

Parliament. eodem anno,

189

adjudged and declared to be no aliens, but able to

possess and purchase, &c. lands within this Realm. And so doth Stamford

take the law, praerog. c. 12. f. 39. | And thus much of the Dukedom of Aqui-

taine, which (together with the Earldom of Poitiers) came to King Henry the

second (as hath been said) by marriage, and continued in the actual possession

of the Kings of England by ten descents, viz. from the ﬁrst year of King Henry

the second, unto the two and thirtieth year of King Henry the sixth, which

was upon the very point of three hundred years, within which Dutchie there

were (as some write) 4. Archbishopricks, 24. Bishopricks, 15. Earldoms, 202

Baronies, and above a thousand Captainships and Bailiwicks; and in all this

long time, neither book case nor record can be found wherein any plea was

offered to disae any of them that were born there, by forein birth, but the

contrary hereof directly appeareth by the said book case of 27 lib. Ass. 48.

The Kings of England had sometimes Normandy under actual ligeance and

188. [Ed.: under the faith and allegiance by which you are held to us.]

189. [Ed.: from the rolls of the parliament of that year.]

Guyen,

Guienne.

[20 b]

Normandy,

Normenia,

Normandia.

Part Seven of the Reports214

obedience. The question is then, whether men born in Normandy, after one

King had them both, were inheritable to lands in England; and it is evident

by our books that they were: for so it appeareth by the declaratory act of 17

Edw. 2. de praerog. Regis, c. 12. that they were inheritable to, and capable of

lands in England: for the purview of that Statute is quod Rex habebit escaetas

de terris Normannorum, &c.

190

ergo Normans might have lands in England:

et hoc similiter intelligendum est, si aliqua haereditas descendat alicui nato in

partibus transmarinis, &c.

191

Whereby it appeareth, that they were capable of

lands within England by descent. And that this Act of 17 Edw. 2. was but a

declaration of the Common Law, it appeareth both by Bracton who (as it hath

been said) wrote in the reign of Henry the third, lib. 3. tract. 2. c. 1. f. 116.

and by Britton who wrote in 5 Edw. 1. c. 18. that all such lands as any Norman

had either by descent or purchase, escheated to the King for their treason, in

revolting from their natural liege Lord and Sovereign. And therefore Stamford

praerog. cap. 12. fol. 39. expounding the said Statute of 17 Edw. 2. cap. 12.

concludeth, that by that chapter it should appear (as if he had said, it is apparent

without question) that all men born in Normandy, Gascoin, Guyen, Anjou,

and Brittain, (whiles they were under actual disobedience) were inheritable

within this realm as well as Englishmen. And the reason thereof was, for that

they were one ligeance due to one Sovereign. And so much (omitting many

other authorities) for Normandy: saving I cannot let passe the Isles of Jernsey

and Gersey, parts and parcels of the Dukedom of Normandy, yet remaining

under the actual ligeance and obedience of the King. I think no man will

doubt, but those that are | born in Jernsey and Gersey (though those Isles are

no parcel of the Realm of England, but several dominions, enjoyed by several

titles, governed by several laws) are inheritable and capable of any lands within

the Realm of England, 1 Edw. 3. fo. 7. Commission to determine the title of

lands within the said Isles, according to the Laws of the Isles: and Mich. 41

E. 3. in the Treasury, Quia negotium praed’ nec aliqua alia negotia de insula

praed’ emergentia non debent terminari nisi secundum legem insulae praed’, &c.

192

190. [Ed.: that the king shall have escheats of Norman lands, etc.]

191. [Ed.: and this is likewise to be understood, if any inheritance descends to anyone born in parts

beyond the seas, etc.]

192. [Ed.: because neither the aforesaid business nor any other business arising from the aforesaid island

ought to be determined except in accordance with the law of the aforesaid island, etc.]

[21 a]

Guernsey

and Jesey.

Calvin’s Case 215

And the Register, fol. 22. Rex ﬁdelibus suis de Jernsey et Gersey.

193

King William

the ﬁrst brought this Dukedom of Normandy with him, which by ﬁve descents

continued under the actual obedience of the Kings of England, and in or

about the sixth year of King John, the Crown of England lost the actual

possession thereof, until King Henry the ﬁfth recovered it again, and left it

to King Henry the sixth, who lost it in the 28th year of his reign: wherein

were (as some write) one Archbishoprick, and six Bishopricks, and an hundred

strong towns and fortresses, besides those that were wasted in warre. Maud

the Empresse, the only daughter and heir to Henry the ﬁrst, took to her second

husband Jeffrey Plantaginet, Earl of Anjou, Tourain, and Mayne, who had

issue King Henry the second to whom the said Earldom by just title descended,

who, and the kings that succeeded him, stiled themselves by the name of Comes

Andeguv,

194

&c. untill King Edward the third became king of all France: and

such as were born within that Earldom, so long as it was under the actual

obedience of the King of England, were no aliens, but natural born subjects,

and never any offer made that we can ﬁnd to disable them for forein birth.

But leave we Normandy and Anjou, and speak we of the little, but yet ancient

and absolute kingdom of the Isle of Man, as it appeareth by diverse ancient

and authentike records; as taking one for many. Artold King of Man sued to

King Henry the third to come into England to conferr with him, and to

perform certain things which were due to King Henry the third thereupon

King Henry the third 28. Decemb. ann. regn. sui 34, at Winchester, by his

letters patents gave license to Artold King of Man, as followeth; Rex omnibus

salutem. Sciatis, quod licentiam dedimus, &c. Artoldo Regi de Man veniendo ad

nos in Angl’, ad loquend’ nobisc’ et ad faciend’ nobis quod facere debet, et ideo

vobis mandamus quod ei Regi in veniendo ad nos iu Angl’, vel ibi morando, vel

inde redeundo nullum faciat’ aut ﬁeri permittatis damnum, injur’, molestiam,

aut gravamen, vel etiam hominib’ suis quos secum ducet et si aliquid eis forisfact’

fuerit, id eis sine dilat’ faciat’ emendari. In cujus, &c. duratur’ usque ad fest’ S.

Mich.

195

Wherein | 2 things are to be observed; 1. That seeing that Artold King

193. [Ed.: The king to his faithful [subjects] of Jersey and Guernsey.]

194. [Ed.: Earl of Anjou.]

195. [Ed.: The king to all [etc.], greeting. Know ye that we have given licence etc. to Artold, king of

Man, to come to us in England to speak with us and to do for us what ought to be done; and therefore

we command you that you do not cause, or allow to be caused, any damage, injury, molestation, or grievance,

Man,

Mannia.

[21 b]

Part Seven of the Reports216

of Man sued for a licence in this case to the King, it proveth him an absolute

King for that a Monarch or an absolute Prince cannot come into England

without licence of the King, but any subject being in league, may come into

this Realm without licence; 2. That the King in his licence doth stile him by

the name of a King. It was resolved in 11 Hen. 8. that where an ofﬁce was

found after the decease of Thomas Earl of Darby, and that he died seised, &c.

of the Isle of Man, that the said ofﬁce was utterly void, for that the Isle of

Man, Normandy, Gascoin, &c. were out of the power of the Chancery, and

governed by several laws; and yet none will doubt, but those that are born

within that Isle, are capable and inheritable of lands within the Realm of

England. Wales was sometimes a kingdom, as it appeareth by 19 Hen. 6. fol.

6. and by the act of Parliament of 2 Hen. 5. cap. 6. but whilst it was a kingdom,

the same was holden, and within the fee, of the King of England: and this

appeareth by our books. Fleta lib. 1. cap. 16. 1 Edw. 3. 14. 8 Edw. 3. 59. 13

Edw. 3. tit. Jurisdict’. 10 Hen. 4. 6. Plow. Com. 368. And in this respect, in

divers ancient Charters, Kings of old time styled themselves in several manners,

as King Edgar, Britannia

Basilen’c; Etheldredus, totius Albionis dei providentia

Imperator; Edredus magnae Britanniae monarcha,

196

which among many other

of like nature I have seen. But by the Statute of 12 Edw. 1. Wales was united

and incorporated into England, and made parcel of England in possession;

and therefore it is ruled in 7 Hen. 4. fol. 1. 4. that no protection doth lie quia

moratur in Wallia,

197

because Wales is within the realm of England. And where

it is recited in the act of 27 H. 8. that Wales was ever parcel of the Realm of

England, it is true in this sense, viz. that before 12 E. 1. it was parcel in tenure,

and since it is parcel of the body of the Realm. And whosoever is born within

the fee of the King of England, though it be in another kingdom, is a natural

born subject, and capable and inheritable of lands in England, as it appeareth

in Plow. Com. 126. And therefore those that were born in Wales before 12

Edw. 1. whilst it was onely holden of England, were capable and inheritable

of lands in England.

to the same king while coming to us in England, staying there, or returning from thence, nor to his men

whom he brings with him, and if any wrong is done to them you are to cause it to be put right without

delay. In [witness] whereof, etc.; to last until the feast of St Michael.]

196. [Ed.: King; Ethelred, of all Albion the provident Emperor; Edredy great monarch of the Britons.]

197. [Ed.: because he is staying in Wales.]

Wales,

Cambria,

Wallia.

Calvin’s Case 217

Now come we to France and the members thereof, as Callice, Guynes,

Tournay, &c. which descended to King Edward the third as son and heir to

Isabel, daughter and heir to Philip le Beau, King of France. Certain it is, whiles

| King Henry the sixth had both England and the heart and greatest part of

France under his actual ligeance and obedience (for he was crowned King of

France in Paris) that they that were then born in those parts of France, that

were under actual ligeance and obedience, were no aliens, but capable of, and

inheritable to lands in England. And that is proved by the writs in the Register,

fol. 26. cited before. But in the inrolment of Letters Patents of denization in

the Exchequer, int’ originalia,

198

Anno 11 Hen. 6. with the Lord Treasurer’s

Remembrancer, was strongly urged and objected: for (it was said) thereby it

appeareth, that King Henry the sixth in Anno 11 of his reign, did make denizen

one Reynel, born in France: Whereunto it was answered, that it is proved by

the said Letters Patents, that he was born in France before King Henry the

sixth had the actual possession of the Crown of France, so as he was Antenatus:

and this appeareth by the said Letters Patents, whereby the King granteth,

that Magister Johannes Reynel serviens noster, &c. infra regnum nostrum Franc’

oriundus pro termino vitae suae sit ligeus noster, et eodem modo teneatur sicut

verus et ﬁdelis noster infra regnum Angl’ oriundus, ac quod ipse terras infra regnum

nostrum Angl’ seu alia dominia nostra perquirere possit et valeat.

199

Now if that

Reynel had been born since Henry the sixth had the quiet possession of France

(the King being crowned King of France about one year before) of necessity

he must be an infant of very tender age, and then the King would never have

called him his servant, nor made the Patent (as thereby may be collected) for

his service, nor called him by the name of Magister Johannes Reynel: But with-

out question he was Antenatus, born before the King had the actual and real

possession of that Crown.

Callice [Calais] is a part of the kingdom of France, and never was parcell

of the kingdom of England, and the kings of England enjoyed Callice in and

from the reign of King Edward the third, until the losse thereof in Queen

Maries time, by the same title that they had to France. And it is evident by

198. [Ed.: amonst the ‘originalia’ rolls.]

199. [Ed.: Master John Reynel, our servant, etc., born within our realm of France, shall be our liege

for term of his life, and shall keep himself in the same manner as a true and faithful subject of ours born

within the realm of England, and that he may and shall have power to acquire lands within our realm of

England or other our dominions.]

France,

Gallia,

Francia.

[22 a]

Calice,

Calecia,

Caletum.

Part Seven of the Reports218

our books, that those that were born in Callice, were capable and inheritable

to lands in England, 42 Edw. 3. cap. 10. Vide 21 Hen. 7. 33. 19 Hen. 6. 2 Edw.

4. 1. 39 Hen. 6. 39. 21 Edw. 4. 18. 28 Hen. 6. 3 b. By all which it is manifest,

that Callice being parcel of France, was under the actual obedience and com-

mandment of the King, and by consequent those that were born there, were

natural born subjects, and no aliens. Callice from the reign of King Edward

the third until the ﬁfth year of Queen Mary, remained under the actual obe-

dience of the king of England. | Guines also, another part of France, was under

the like obedience to King Henry the sixth, as appeareth by 32 Hen. 6. fol.

4. And Tournay was under the obedience of Henry the eighth., as it appeareth

by 5 Eliz. Dyer, fol. 224. for there it is resolved, that a bastard born at Tournay,

whiles it was under the obedience of Henry the eighth, was a natural subject,

as an issue born within this realm by aliens. If then those that were born at

Tournay, Callice, &c. whiles they were under the obedience of the king, were

natural subjects, and no aliens, it followeth, that when the kingdom of France

(whereof those were parcels) was under the king’s obedience, that those that

were then born there, were natural subjects, and no aliens.

Next followeth Ireland, which originally came to the kings of England by

conquest but who was the ﬁrst conqueror thereof, hath been a question. I

have seen a Charter made by King Edgar, in these words: Ego Edgarus Anglorum

Basilen’c, omniumque insularum oceani, quae Britanniam circumjacent, Im-

perator et Dominus, gratias ago ipsi Deo omnipotenti Regi meo, qui meum im-

perium sic ampliavit et exaltavit super regnum patrum meorum, &c. mihi concessit

propitia divinitas, cum Anglorum imperio omnia regna insularum oceani, et cum

suis ferocissimis Regibus usque Norvegiam, maximamque partem Hibern’, cum

sua noblissima civitate de Dublina, Anglorum regno subjugare, quapropter et ego

Christi gloriam et laudem in regno meo exaltare, et ejus servitium ampliﬁcare

devotus disposui, &c.

200

Yet for that it was wholly conquered in the reign of

Henry the second, the honour of the conquest of Ireland is attributed to him,

200. [Ed.: I, Edgar, king of the English, and emperor and lord of all the islands of the ocean which

surround Britain, give thanks to the almighty God himself, my king, who has ampliﬁed and exalted my

power over the realm of my fathers etc. and by whose divine favour it has been granted to me to subjugate

with English power all the kingdoms of the islands of the ocean, with their ﬁercest kings, as far as Norway

and the greater part of Ireland (with its most noble city of Dublin), to the English kingdom, on account

of which I have arranged to exalt the glory and praise of Christ in my realm, and to amplify his service

of devotion, etc.]

[22 b]

Guynes,

Tournay.

Ireland,

Hibernia.

Calvin’s Case 219

and his style was, Rex Angl’ Dominus Hibern’ Dux Normann’ Dux Acquittan’

et Comes Andegav’,

201

King of England, Lord of Ireland, Duke of Normandy,

Duke of Aquitain, and Earl of Anjou. That Ireland is a dominion separate

and divided from England, it is evident from our books, 20 Hen. 6. 8. Sir

John Pilkington’s case. 32 Hen. 6. 25. 20 Eliz. Dyer 360. Plow. Com. 360. And

2 Rich. 3. 12. Hibernia habet Parliamentum, et faciunt leges, et nostra statuta

non ligant eos, quia non mittunt milites ad Parliamentum (which is to be un-

derstood, unlesse they be especially named) sed personae eorum sunt subjecti

regis, sicut inhabitantes in Calesia, Gasconia, et Guyan.

202

Wherein it is to be

observed, that the Irishman (as to subjection) is compared to men born in

Calice, Gascoin, and Guyan. Concerning their Laws, Ex rotulis patentium de

Anno 11 Regis Hen. 3.

203

there is a Charter which that king made, beginning

in these words, Rex, &c., Baronibus, militibus, et omnibus libere tenentibus L.

salutem, satis ut credimus | vestra audivit discretio, quod quando bonae memoriae

Johannes quondam Rex Angl’ pater noster venit in Hiberniam ipse duxit secum

viros discretos et legis peritos, quorum communi consilio et ad instantiam Hib-

ernensium statuit et precepit leges Anglicanas in Hibern’ ita quod leges easdem

in scripturas redactas reliquit sub sigillo suo ad Scaccarium Dublin’.

204

So as now

the Laws of England became the proper Laws of Ireland; and therefore, because

they have Parliaments holden there, whereat they have made divers particular

Laws concerning that dominion, as it appeareth in 20 Hen. 6. 8. & 20 Eliz.

Dyer 360. and for that they retain unto this day divers of their ancient customs,

the book in 20 Hen. 6. 8. holdeth, that Ireland is governed by laws and customs,

separate and diverse from the Laws of England. A voyage royal may be made

into Ireland. Vide 11 Hen. 4. 7. & 7 Edw. 4. 27. which proveth it a distinct

Dominion. And in Anno 33 Reg. El. it was resolved by all the Judges of England

201. [Ed.: King of the English, Lord of Ireland, Duke of Normandy, Duke of Acquitain, and Count

of Anjou.]

202. [Ed.: Ireland has a parliament, and they make laws, and our statutes do not bind them because

they do not send knights to parliament . . . but their persons are the king’s subjects, just as the inhabitants

in Calais, Gascony and Guienne.]

203. [Ed.: Out of the patent rolls for the eleventh year of King Henry III.]

204. [Ed.: The king etc. to the barons, knights, and other free tenants of L., greeting. We believe your

discretion has sufﬁciently heard that when John, our father of good memory, lately king of England, came

into Ireland he took with him discerning men who were learned in the law, by whose common advice and

at the instance of the Irish he laid down and ordained the English laws in Ireland, so that he left the same

laws edited in writing under his seal at the Exchequer in Dublin.]

[23 a]

Part Seven of the Reports220

in the case of Orurke an Irishman, who had committed high Treason in Ire-

land, that he by the statute of 33 Hen. 8. c. 23. might be indicted, arraigned,

and tried for the same in England, according to the purview of that statute:

the words of which statute be, That all Treasons, &c. Committed by any person

out of the realm of England, shall be from henceforth inquired of, &c. And they

all resolved (as afterward they did also in Sir John Perrot’s case) That Ireland

was out of the Realm of England, and that Treasons committed there, were

to be tried within England by that Statute. In the Statute of 4 Hen. 7. cap.

24. of Fines, provision is made for them that be out of this land, and it is

holden in Pl. Com. in Stowel’s case 375, that he that is in Ireland, is out of

this land, and consequently within that proviso. Might not then the like plea

be devised as well against any person born in Ireland, as (this is against Calvin

that is a Post-natus

205

) in Scotland? For the Irishman is born extra ligeantiam

regis regni sui Angl’, &c.

206

which be verba operativa

207

in the plea: But all men

know, that they are natural born Subjects, and capable of and inheritable to

lands in England. Lastly, to conclude this part with Scotland itself; in ancient

time part of Scotland (besides Berwick) was within the power and ligeance

of the King of England, as it appeareth by our Books 42 Edw. 3. 2. The Lord

Beaumont’s case, 11 Edw. 3. c. 2, &c. and by precedents hereafter mentioned;

and that part (though it were under the king of England’s ligeance and obe-

dience) yet was it governed by the Laws of Scotland. | Ex rotulis Scotiae, Anno

11 Edw. 3. amongst the records in the Tower of London. Rex, &c. Constituimus

Rich. Talebot Justiciarium nostrum villae Berwici super Twedam, ac omnium

aliarum terrarum nostrarum in partibus Scot’, ad faciend’ omnia et singula quae

ad ofﬁcium justiciarii pertinent, secundum legem et consuetudinem regni Scot’.

208

And after Anno 26 Edw. 3. ex eodem rot. Rex Henrico de Percey, Ricarda de

Nevil, &c. Volumus et vobis et alteri vestrum tenore praesentium committimus

et mandamus, quod homines nostri de Scot’ ad pacem et obedientiam nostram

existentes, legibus, libertatibus, et liberis consuetudinibus, quibus ipsi et antecessores

sui tempore celebris memoriae Alexandri quondam Regis Scot’ rationabiliter usi

205. [Ed.: person born after [the union].]

206. [Ed.: outside the king’s allegiance of his realm of England, etc.]

207. [Ed.: operative words.]

208. [Ed.: The king, etc. We have constituted Richard Talbot our justice of the vill of Berwick upon

Tweed and of all our other lands in the parts of Scotland, to do all and singular the things which belong

to the ofﬁce of a justice according to the law and custom of the realm of Scotland.]

[23 b]

Calvin’s Case 221

fuerunt, uti ut gaudere deberent, prout in quibusdam indenturis, &c. plenius

dicitur contineri.

209

And there is a Writ in the Register 295 a. Dedimus potestatem

recipendi ad ﬁdem et pacem nostram homines de Galloway.

210

Now the case in

42 Edw. 3. 2. (which was within sixteen years of the said grant, concerning

the Lawes in 26 Edw. 3.) ruleth it, That so many as were born in that part of

Scotland, that was under the ligeance of the King, were no aliens, but in-

heritable to lands in England; yet was that part of Scotland in another King-

dome governed by several Lawes, &c. And if they were natural Subjects in

that case, when the King of England had but part of Scotland, what reason

should there be why those that are born there, when the King hath all Scotland,

should not be natural Subjects, and no aliens? So likewise Barwick is no part

of England, nor governed by the Lawes of England; and yet they that have

been born there, since they were under the obedience of one King, are natural

born Subjects, and no aliens, as it appeareth in 15 Rich. 2. cap. 7, &c. Vide

19 Hen. 6. 35. & 39 Hen. 6. 39. And yet in all these cases and examples, if

this new devised plea had been sufﬁcient, they should have been all aliens

against so many judgments, resolutions, authorities, and judicial Precedents

in all successions of ages. There were sometimes in England, whiles the Hep-

tarchy lasted, seven several crowned Kings of several and distinct Kingdomes,

but in the end the West Saxons got the Monarchy, and all the other Kings

melted (as it were) their Crowns to make one imperial Diadem for the King

of the West Saxons over all. Now when the whole was under the actual and

real ligeance and obedience of one King, were any that were born in any of

those several and distinct Kingdomes, aliens one to another? Certainly they

being born under the obedience of one King and Sovereign were all natural

born subjects, and capable of and inheritable unto any lands in any of the

said Kingdomes.

| In the holy History reported by St. Luke, Ex dictamine spiritus sancti, cap.

21 et 22 Act. Apostolorum,

211

it is certain, that St. Paul was a Jew, born in Tarsus,

209. [Ed.: The king to Henry de Percy, Richard de Nevil, etc., [greeting]. We will and, by the tenor

of the presents, we commit and command you and each of you that our men of Scotland, being in peace

and in our obedience, ought to use and enjoy the laws, liberties and free customs which they and their

ancestors reasonably used in the time of Alexander of celebrated memory, king of Scots, as in certain

indentures etc. is said to be more fully contained.]

210. [Ed.: We give authority to receive the men of Galloway into our faith and peace.]

211. [Ed.: By the word of the Holy Spirit, in chapters 21 and 22 of the Acts of the Apostles.]

[24 a]

Part Seven of the Reports222

a famous City of Cilicia: for it appeareth in the said 21st chapter, 39 verse, by

his own words: Ego homo sum quidem Judaeus a Tarso Ciliciae non ignotae

civitatis municeps.

212

And in the 22d chapter, 3. verse, Ego sum vir Judaeus natus

Tarso Ciliciae, &c.

213

and then made that excellent Sermon there recorded,

which when the Jews heard, the Text saith, verse 22. Levaverunt vocem suam

dicentes, tolle de terra hujusmodi, non enim fas est eum vivere: vociferantibus

autem eis et projicientibus vestimenta sua, et pulverem jactantibus in aerem,

214

Claudius Lysias the popular Tribune, to please this turbulent and profane

multitude (though it were utterly against justice and common reason) the Text

saith, Jussit Tribunus induci eum in castra, 2. ﬂagellis caedi, et 3. torqueri eum

(quid ita?) ut sciret propter quam causam sic acclamarent:

215

and when they had

bound Paul with cords, ready to execute the Tribune’s unjust commandment,

the blessed Apostle (to avoid unlawfull and sharp punishment) took hold of

the law of a heathen Emperour, and said to the Centurion standing by him,

Si hominem Romanum et indemnatum licet vobis ﬂagellare?

216

Which when the

Centurion heard, he went to the Tribune and said, Quid acturus es? Hic enim

homo civis Romanus est.

217

Then came the Tribune to Paul, and said unto him:

Dic mihi si tu Romanus es? At ille dixit, etiam.

218

And the Tribune answered,

Ego multa summa civitatem hanc consequutus sum.

219

But Paul not meaning

to conceal the dignity of his birth-right, said, Ego autem et natus sum:

220

as if

he should have said to the Tribune, you have your freedom by purchase of

money, and I (by a more noble means) by birth-right and inheritance. Protinus

ergo (saith the text) decesserunt ab illo qui illum torturi erant. Tribunus quoque

timuit postquam rescivit, quia civis Romanus esset, et quia alligasset eum.

221

212. [Ed.: I am a man, a certain Jew of Tarsus in Cilicia, a free citizen of no mean city.]

213. [Ed.: I am a man, a Jew born in Tarsus in Cilicia, etc.]

214. [Ed.: They raised their voices, saying, ‘Take him from this earth, he is not ﬁt to live,’ shouting

and casting off their clothes and throwing dust in the air.]

215. [Ed.: the tribune ordered him to be put in a fortress, and examined with whipping and torture,

in order to know the reason why they cried out against him.]

216. [Ed.: If he is a Roman and uncondemned, is it lawful for you to whip him?]

217. [Ed.: Take heed what you do. For this man is a Roman citizen.]

218. [Ed.: Tell me if you are a Roman. And he said, ‘Yes’.]

219. [Ed.: I obtained my citizenship (freedom of the city) with a great sum.]

220. [Ed.: But I was born so.]

221. [Ed.: Then forthwith those who were about to torture him departed; and the tribune also was

afraid, after he knew that he was a Roman, because he had tied him up.]

Calvin’s Case 223

as hereby it is manifest, that Paul was a Jew, born at Tarsus in Cilicia, in Asia

Minor, and yet being born under the obedience of the Roman Emperour, he

was by birth a citizen of Rome in Italy in Europe that is, capable of and

inheritable to all privileges and immunities of that city. But such a plea as is

now imagined against Calvin might have made St. Paul an Alien to Rome.

For if the Emperour of Rome had several ligeances for every several Kingdome

and Countrey under his obedience, then might it have been said against St.

Paul, that he was extra | ligeantiam Imperatoris regni sui Italiae, et infra li-

geantiam Imperatoris regni sui Ciliciae, &c.

222

But as Saint Paul was Judaeus

patria et Romanus privilegio, Judaeus natione et Romanus jure nationum;

223

may Calvin say, that he is Scotus patriae et Anglus privilegio; Scotus natione, et

Anglus jure nationum.

224

Samaria in Syria was the chief City of the ten Tribes: but it being usurped

by the king of Syria, and the Jews taken prisoners, and carried away in captivity,

was after inhabited by the Panyms. Now albeit Samaria of right belonged to

Jurie, yet because the people of Samaria were not under actual obedience, by

the judgment of the chief Justice of the whole world they were adjudged

Alienigenae, Aliens: For in the Evangelist St. Luke, c. 17. when Christ had

cleansed the ten Lepers, Unus autem ex illis (saith the Text) ut vidit quia mun-

datus esset, regressus est, cum magna voce magniﬁcans Deum, et cecidit in faciem

ante pedes ejus gratias agens, et hic erat Samaritanus. Et Jesus respondens dixit,

Nonne decem mundati sunt, et novem ubi sunt? Non est inventus qui rediret et

daret gloriam Deo nisi hic alienigena.

225

So as by his judgment this Samaritan

was Alienigena, a Stranger born, because he had the place, but wanted obe-

dience. Et si desit obedientia non adjuvet locus.

226

And this agreeth with the

Divine, who saith, Si locus salvare potuisset, Satan de coelo pro sua inobedientia

222. [Ed.: outside the emperor’s allegiance of his realm of Italy, and within the emperor’s allegiance of

his realm of Cilicia, etc.]

223. [Ed.: A Jew by country and a Roman by privilege, a Jew by birth and a Roman by the law of

nations.]

224. [Ed.: A Scot by country and an Englishman by privilege.]

225. [Ed.: And one of them, when he saw that he was healed, went back and with a loud voice gloriﬁed

God, and fell down on his face at his feet, giving him thanks: and he was a Samaritan. And Jesus answering

said, ‘Were there not ten that were cleansed? Where are the other nine? None of them is found to come

back and give glory to God except this foreigner.’]

226. [Ed.: And, if obedience is lacking, the place does not help.]

[24 b]

Part Seven of the Reports224

non cecidisset. Adam in paradiso non cecidisset, Lot in monte non cecidisset, sed

potius in Sodom.

227

6. Now resteth the sixth part of this division, that is to say, six demonstrative

illations, or conclusions, drawn plainly and expressly from the premises.

1. Every one that is an Alien by birth, may be, or might have been, an enemy

by accident; but Calvin could never at any time be an enemy by any accident;

ergo he cannot be an alien by birth. Vide 33 Hen. 6. fol. 1. the difference between

an alien enemy and a subject traytor. Hostes sunt qui nobis, vel quibus nos bellum

decernimus, caeteri proditores, praedones, &c.

228

The major is apparent, and is

proved by that which hath been said. Et vide Magna Charta, cap. 30. 19 Edw.

4. 6. 9 Edw. 3. c. 1. 27 Edw. 3. c. 2. 4 Hen. 5. c. 7. 14 Edw. 3. stat. 2. c. 2. &c.

2. Whosoever are born under one natural ligeance and obedience, due by

the Law of Nature to one Sovereign are natural born Subjects: But Calvin

was born under one natural ligeance and obedience, due by the Law of Nature

to one Sovereign; ergo he is a natural born subject.

| 3. Whosoever is born within the King’s power or protection, is no Alien:

But Calvin was born under the King’s power and protection; ergo he is no

Alien.

4. Every stranger born must at his birth be either amicus,

229

or inimicus:

230

But Calvin at his birth could neither be amicus nor inimicus; ergo he is no

stranger born. Inimicus he cannot be, because he is subditus, and for that cause

also he cannot be amicus; neither now can Scotia be said to be solum amici,

231

as hath been said.

5. Whatsoever is due by the law or constitution of man, may be altered:

But natural ligeance or obedience of the subject to the Sovereign cannot be

altered; ergo natural ligeance or obedience to the Sovereign is not due by the

law or constitution of man. Again, whatsoever is due by the Law of Nature,

cannot be altered: But ligeance and obedience of the subject to the Sovereign

is due by the law of Nature; ergo it cannot be altered. It hath been proved

before, that ligeance or obedience of the inferior to the superior, of the subject

227. [Ed.: If the place could save, Satan would not have fallen from heaven for his disobedience, Adam

would not have fallen in paradise, Lot would not have fallen on the mountain but rather in Sodom.]

228. [Ed.: Enemies are those who wage war with us; others are traitors, robbers, etc.]

229. [Ed.: friend.]

230. [Ed.: enemy.]

231. [Ed.: friendly territory.]

[25 a]

Calvin’s Case 225

to the Sovereign, was due by the Law of Nature many thousand years before

any Law of man was made: Which ligeance or obedience (being the onely

mark to distinguish a subject from an alien) could not be altered; therefore

it remaineth still due by the Law of Nature. For Leges naturae perfectissimae

sunt et immutabiles, humani vero juris conditio semper in inﬁnitum decurrit, et

nihil est in eo quod perpetuo stare possit. Leges humanae nascuntur, vivunt, mor-

iuntur.

232

Lastly, whosoever at his birth cannot be an alien to the King of England,

cannot be an alien to any of his subjects of England: But the Plaintiff at his

birth could be no alien to the king of England; ergo the Plaintiff cannot be

an alien to any of the subjects of England. The major and minor both be

propositiones perspicue verae.

233

For as to the major it is to be observed, that

whosoever is an alien born, is so accounted in Law in respect of the King:

And that appeareth ﬁrst by the pleading so often before remembered, that he

must be extra ligeantiam Regis, without any mention making of the subject.

2. When an alien born purchaseth any lands, the King onely shall have them,

though they be holden of a subject, in which case the subject loseth his Seig-

niorie. And as it is said in our Books, an Alien may purchase ad proﬁcuum

Regis;

234

but the act of Law giveth the alien nothing: And therefore if a woman

alien marrieth a subject, she shall not be endowed, neither shall an alien be

tenant by the courtesy. Vide 3 Hen. 6. 55. 4 Hen. 3. 179. 3. The subject shall

plead, that the defendant is an | alien born, for the beneﬁt of the king, that

he upon ofﬁce found may seize, and 2. that the Tenant may yield to the King

the land, and not to the alien, because the king hath best right thereunto. 4.

Leagues between our Sovereign and others are the onely means to make aliens

friends, et foedera percutere,

235

to make Leagues, onely and wholly pertaineth

to the king. 5. Wars do make aliens enemies, and bellum indicere

236

belongeth

onely and wholly to the king, and not to the subject, as appeareth in 19 Edw.

4. fol. 6. 6. The King onely without the subject may make not onely Letters

232. [Ed.: The laws of nature are most perfect and immutable, whereas the condition of human law

always runs into the inﬁnite and there is nothing in them which can stand for ever. Human laws are born,

live, and die.]

233. [Ed.: propositions of obvious truth.]

234. [Ed.: to the king’s proﬁt.]

235. [Ed.: and make treaties.]

236. [Ed.: proclaiming war.]

[25 b]

Part Seven of the Reports226

of Safe conduct, but Letters Patents of Denization, to whom, and how many

he will, and enable them at his pleasure to sue any of his Subjects in any action

whatsoever, real or personal, which the king could not doe without the subject,

if the subject had any interest given unto him by the Law in any thing con-

cerning an alien born. Nay, the Law is more precise herein than in number

of other cases, of higher nature: for the king cannot grant to any other to

make of strangers born, denizens, it is by the Law itself so inseparably and

individually annexed to his royal person (as the book is in 20 Hen. 7. fol. 8.)

For the Law esteemeth it a point of high Prerogative, Jus majestatis, et inter

insignia summae potestatis

237

to make aliens born subjects of the Realm, and

capable of the lands and inheritances of England, in such sort as any natural

born subject is. And therefore by the Statute of 27 Hen. 8. cap. 24. many of

the most ancient Prerogatives and royal Flowers of the Crown, as authority

to pardon Treason, Murther, Manslaughter, and Felony, power to make

Justices in Eyre, Justices of Assise, Justices of Peace and Gaol Delivery, and

such like, having been severed and divided from the Crown, were again re-

united to the same: But authority to make Letters of Denization, was never

mentioned therein to be resumed, for that never any claimed the same by any

pretext whatsoever, being a matter of so high a point of Prerogative. So as the

pleading against an alien, the purchase by an alien, leagues and wars between

aliens, denizations, and safeconducts of aliens, have aspect onely and wholly

unto the king. It followeth therefore, that no man can be alien to the subject

that is not an alien to the king, Non potest esse alienigena corpori, qui non est

capiti, non gregi qui non est Regi.

238

The authorities of Law cited in this case for maintenance of the Judgment,

4 Hen. 3. tit. Dower. Bracton lib. 5. fol. 427. Fleta, lib. 6. cap. 47. In temps

E. 1. Hingham’s Report. 17 Edw. 2. cap. 12. 11 Edw. 3. | cap. 2. 14 Edw. 3 Statut.

de Franciaˆaˇ. 42 Edw. 3. fol. 2. 42 Edw. 3. cap. 10. 22 Lib. Ass. 25. 13 Rich. 2.

cap. 2. 15 Rich. 2. cap. 7. 11 Hen. 4 fol. 19 13 Hen. 4. fol. 26. 14 Hen. 4. fol.

19. 13 Hen. 4. Statutum de Guyan. 29 Hen. 6. tit. Estoppel 48. 28 Hen. 6.

cap. 5. 32 Hen. 6. fol. 23. 32 Hen. 6. fol. 26. Littl. temps Edw. 4. lib. 2. cap.

Villenage. 15 Edw. 4. fol. 15. 19 Edw. 4. 6. 22 Edw. 4. cap. 8. 2 Rich. 3. 2. and

237. [Ed.: A right of majesty, and among the ensigns of the highest power.]

238. [Ed.: One cannot be an alien to the body who is not so to the head, an alien to the people who

is not so to the king.]

[26 a]

Calvin’s Case 227

12. 6 Hen. 8. fol. 2. Dyer. 14 Hen. 8. cap. 2. No manner of stranger born out

of the King’s obeysance, 22 Hen. 8. cap. 2. Every person born out of the Realm

of England, out of the King’s obeysance, 32 Hen. 8. cap. 16. 25 Hen. 8. cap.

15, &c. 4 Ed. 6. Plowd. Comment. fol. 2. Fogasse’s case. 2 and 3 Phil. and Mar.

Dyer 145. Shirley’s case. 5 Eliz. Dyer 224. 13 Eliz. cap. 7. de Bankrupts. All

Commissions ancient and late, for the ﬁnding of ofﬁces, to entitle the King

to the lands of the Aliens born: Also all Letters Patents of Denization of ancient

and later times do prove, That he is no alien that is born under the king’s

obedience.

Now we are come to consider of legal inconveniences: And ﬁrst of such as

have been objected against the Plaintiff, and, secondly of such as should follow,

if it had been adjudged against the Plaintiff.

Of such inconveniences as were objected against the Plaintiff, there remain

onely four to be answered; for all the rest are clearly and fully satisﬁed before:

1. That if Postnati should be inheritable to our laws and inheritances, it were

reason that they should be bound by our Laws; but Postnati are not bound

by our Statute or Common Laws; for they having (as it was objected) never

so much freehold or inheritance, cannot be returned of Juries, nor subject to

scot or lot, nor chargeable to Subsidies or Quinzimes, nor bound by any Act

of Parliament made in England. 2. Whether one be born within the kingdom

of Scotland, or no, is not tryable in England, for that it is a thing done out

of this Realm, and no Jury can be returned for the tryal of any such Issue:

And what inconvenience should thereof follow, if such pleas that wanted tryal

should be allowed (for then all aliens might imagine the like plea) they that

objected it, left it to the consideration of others. 3. It was objected, that this

Innovation was so dangerous, that the certain event thereof no man could

foresee, and therefore some thought it ﬁt, that things should stand and con-

tinue as they had been in former time, for fear of the worst. 4. If Postnati were

by Law legitimated in England, it was objected what inconvenience and con-

fusion should | follow, if (for the punishment of us all) the King’s royal Issue

should faile, &c. whereby those kingdomes might again be divided. All the

other arguments and objections that have been made, have been answered

before, and need not to be repeated again.

1. To the ﬁrst it was resolved, That the cause of this doubt was the mistaking

of the Law: For if a Postnatus do purchase any lands in England, he shall be

subject in respect thereof, not onely to the Laws of this Realm, but also to all

services and contributions, and to the payment of Subsidies, Taxes, and pub-

The 5th

general

part con-

cerning

inconve-

niences.

[26 b]

Part Seven of the Reports228

lique charges, as any Denizen or Englishman shall be; nay, if he dwell in

England, the King may command him by a Writ of Ne exeat Regnum,

239

that

he depart not out of England. But if a Postnatus dwell in Scotland, and have

lands in England, he shall be chargeable for the same to all intents and pur-

poses, as if an Englishman were owner thereof, and dwelt in Scotland, Ireland,

in the Isles of Man, Jernsey, or Gersey, or elsewhere. The same Law is of an

Irishman that dwells in Ireland, and hath land in England. But if Postnati, or

Irishmen, men of the Isles of Man, Jernsey, Gersey, &c. have lands within

England, and dwell here, they shall be subject to all services and publique

charges within this Realm, as any Englishman shall be. So as to services and

charges, the Postnati and Englishmen born are all in one predicament.

2. Concerning the tryal, a threefold answer was thereunto made and re-

solved. 1. That the like objection might be made against Irishmen, Gascoins,

Normans, men of the Isles of Man, Jernsey, and Gersey, of Berwick, &c. all

which appear by the rule of our books to be natural born subjects; and yet

no Jury can come out of any of those countries or places, for trial of their

births there. 2. If the demandant or plaintiff in any action concerning lands

be born in Ireland, Jernsey, Gersey, &c. out of the Realm of England, if the

tenant or defendant plead, that he was born out of the ligeance of the king,

&c. the demandant or plaintiff may reply, that he was born under the ligeance

of the King at such place within England; and upon the evidence the place

shall not be material, but only the Issue shall be, whether the demandant or

plaintiff were born under the ligeance of the King in any of his kingdoms or

dominions soever: And in that case the Jury (if they will) may ﬁnd the special

matter, viz. the place where he was born, and leave it to the judgment of the

Court: and that Jurors may take knowledge of things done | out of the Realm

in this and like cases, vide 7 Hen. 7. 8. b. 20 Edw. 3. Averment 34. 5 Ric. 2.

tit. Trial 54. 15 Edw. 4. 15. 32 Hen. 6. 25. Fitz. Nat. Br. 196. Vid Dowdales case

in the sixth part of my Reports, fol. 47. and there divers other judgments be

vouched. 3. Brown in Anno 32 Hen. 6. reporteth a Judgment then lately given,

that where the defendant pleaded, That the plaintiff was a Scot, born at St.

John’s Town in Scotland, out of the ligeance of the King; whereupon they

were at Issue, and that Issue was tried where the Writ was brought, and that

239. [Ed.: Literally, “that he should not leave the realm,” a writ issued in chancery forbidding travel

out of the kingdom without leave of the King or a court.]

[27 a]

Calvin’s Case 229

appeareth also by 27 Ass. pl. 24. that the Jury did ﬁnd the Prior to be born

in Gascoin: for so much is necessarily proved by the words trove fuit

240

And

20 Ed. 3. tit. Averment 34. in a juris utrum,

241

the death of one of the vouchees

was alleged at such a Castle in Britain, and this was inquired of by the Jury:

And it is holden in 5 Rich. 2. tit. Trial 54. That if a man be adhering to the

enemies of the King in France, his Land is forfeitable, and his adherency shall

be tried where the land is, as oftentimes hath been done, as there it is said by

Belknap: And Fitz. Nat. Bre. 196 in a Mortdanc,

242

if the ancestor died in

intinere peregrinationis sum vers. Terram sanctam

243

the Jury shall inquire of

it. But in the case at barr, seeing the Defendant hath pleaded the truth of the

case, and the Plaintiff hath not denied it, but demurred upon the same, and

thereby confessed all matters of fact, the Court now ought to judge upon the

especial matter, even as if a Jury upon an issue joyned in England, as it is

aforesaid, had found the especial matter, and left it to the Court.

3. To the third it was answered and resolved, That this judgment was rather

a renovation of the judgments and censures of the reverend Judges and Sages

of the law in so many ages past, than any innovation, as it appeareth by the

books and book cases before recited: neither have Judges power to judge ac-

cording to that which they think to be ﬁt, but that which out of the laws they

know to be right and consonant to law. Judex bonus nihil ex arbitrio suo faciat,

nec proposito domesticae voluntatis, sed juxta leges et jura pronuntiat.

244

And as

for timores,

245

fears grounded upon no just cause, Qui non cadunt in constantem

virum, vani timores aestimandi sunt.

246

4. And as to the fourth, it is less than a dream of a shadow, or a shadow

of a dream: for it hath been often said, Natural legitimation respecteth actual

obedience to the Sovereign at the time of the birth: for as the Antenati remain

aliens as to the Crown of England, because they were born when there were

240. [Ed.: it was found.]

241. [Ed.: Writ by which the incumbent holder of an interest in lands of the Church seeks recovery

of that interest from another.]

242. [Ed.: Mort’d ancestor, a writ to recover real property lost at the death of an ancestor.]

243. [Ed.: in going on his pilgrimage to the Holy Land.]

244. [Ed.: A good judge does nothing by his own whim, nor by the suggestion of his own will, but

pronounces according to statutes and laws [leges et jura].]

245. [Ed.: fears.]

246. [Ed.: Fears are to be accounted triﬂing if they would not operate upon a constant man.]

Part Seven of the Reports230

several Kings of the several kingdoms, and the | uniting of the kingdoms by

descent subsequent, cannot make him a Subject to that Crown to which he

was an alien at the time of his birth: So albeit the kingdoms (which Almighty

God of his inﬁnite goodness and mercy divert) should by descent be divided,

and governed by several Kings; yet it was resolved, That all those that were

born under one natural obedience, whiles the Realms were united under one

Sovereign, should remain natural born Subjects, and no aliens; for that nat-

uralization due and vested by birthright, cannot by any separation of the

Crowns afterward be taken away: nor he that was by judgment of Law a natural

Subject at the time of his birth, become an alien by such a matter ex post facto.

And in that case, upon such an accident, our Postnatus may be ad ﬁdem utri-

usque Regis,

247

as Bracton saith in the afore remembered place, fol. 427. Sicut

Anglicus non auditur in placitando aliquem de terris et tenement, in Francia ita

nec debet Francigena et alienigena, qui fuerit ad ﬁdem Regis Franciae, audiri

placitando in Angiui: sed tamen sunt aliqui Francigenae in Francia qui sunt ad

ﬁdem utriusque: et semper fuerunt ante Normaniam deper ditam et post, et qui

placitant hic et ibi, ea ratione qua sunt ad ﬁdem utriusque, sicut fuit Willielmus

comes mareschallus et manens Angiui, et M. de Gynes manens in Francia, et alli

plures.

248

Concerning the reason drawn from the Etymologies, it made against

them, for that by their own derivation, alienae gentis

249

and alienaeligeantiae

250

is all one: But arguments drawn from Etymologies, are too weak and too light

for Judges to build their judgments upon: for Saepenumero ubi proprietas ver-

borum attenditur, sensus veritatis amittitur:

251

and yet when they agree with

the Judgment of Law, Judges may use them for ornaments. But on the other

side, some inconveniences should follow, if the plea against the Plaintiff should

be allowed: for ﬁrst it maketh Ligeance local: videlicet, Ligeantia Regis regni

247. [Ed.: in the allegiance (literally, “to the faith”) of either king.]

248. [Ed.: Just as an Englishman shall not be heard to implead anyone for lands and tenements in

France, so should not a Frenchman and an alien born, who owes allegiance to [lit. is to the faith of] the

king of France, be heard to plead in England; yet there are some Frenchmen in France who owe allegiance

to both kings, and always did, both before the loss of Normandy and after, and who plead here and over

there, by reason that they owe allegiance to both, as was William, earl marshal, living in England, and M.

de Gynes, living in France, and many others.]

249. [Ed.: of foreign birth.]

250. [Ed.: of foreign allegiance.]

251. [Ed.: Often where the precise meaning of words is attended to, the true sense is lost.]

[27 b]

Calvin’s Case 231

sui Scotiae, and Ligeantia Regis regni sui Angliae:

252

whereupon should follow,

First, That faith or ligeance, which is universal, should be conﬁned within

locall limits and bounds; Secondly, That the Subject should not be bound to

serve the King in peace or in warre out of those limits; Thirdly, it should

illegitimate many, and some of noble blood, which were born in Gascoign,

Guyen, Normandie, Callice, Tournay, France, and divers other of his Majesties

Dominions, whiles the same were in actual | obedience, and in Berwick, Ire-

land, Jernsey, and Gersey, if this plea should have been admitted for good.

And thirdly, this strange and new devised plea inclineth too much to coun-

tenance that dangerous and desperate error of the Spencers, touched before,

to receive any allowance within Westminster Hall.

In the proceeding of this case, these things were observed, and so did the

chief Justice of the Common pleas publiquely deliver in the end of his ar-

gument in the Exchequer Chamber. First, That no commandment or mes-

suage by word or writing was sent or delivered from any whatsoever to any

of the Judges, to cause them to incline to any opinion in this case: which I

remember, for that it is honourable for the State, and consonant to the Laws

and Statutes of this Realm. Secondly, there was observed, what a concurrence

of Judgments, Resolutions, and Rules, there be in our books in all ages con-

cerning this case, as if they had been prepared for the deciding of the question

of this point: and that (which never fell out in any doubtfull case) no one

opinion in all our books is against this judgment. Thirdly, That the ﬁve Judges

of the King’s Bench, who adjourned this case into the Exchequer Chamber,

rather adjourned it for weight than for difﬁculty, for all they in their arguments

una voce

253

concurred with the judgment. Fourthly, That never any case was

adjudged in the Exchequer Chamber with greater concordance and lesse va-

riety of opinions, the Lord Chancellor and twelve of the Judges concurring

in one opinion. Fifthly, That there was not in any remembrance so honourable,

great, and intelligent an auditory at the hearing of the arguments of any Ex-

chequer Chamber case, as was at this case now adjudged. Sixthly it appeareth,

that Jurisprudentia legis communis Angliae est scientia socialis et copiosa:

254

so-

252. [Ed.: namely, the King’s allegiance of his realm of Scotland, [and] the King’s allegiance of his realm

of England.]

253. [Ed.: with one voice.]

254. [Ed.: The jurisprudence of the common law of England is a sociable and a copious science.]

[28 a]

Part Seven of the Reports232

ciable, in that it agreeth with the principles and rules of other excellent Sci-

ences, divine and human: copious, for that quamvis ad ea quae frequentius

accidunt jura adaptantur,

255

yet in a case so rare, and of such a quality, that

losse is the assured end of the practice of it (for no alien can purchase lands,

but he loseth them; and ipso facto the King is entitled thereunto, in respect

whereof a man would think few men would attempt it) there should be such

a multitude and farrago of authorities in all successions of ages, in our books

and book cases, for the deciding of a point of so rare an accident. Et sic de-

terminata et terminata est ista quaestio.

256

| The Judgment in the said Case, as entered on Record, &c.

“Whereupon all and singular the premises being seen, and by the Court of

the Lord the now King here diligently inspected and examined, and mature

deliberation being had thereof; for that it appears to the Court of the Lord

the now King here, that the aforesaid plea of the said Richard Smith and

Nicholas Smith above pleaded, is not sufﬁcient in law to bar the said Robert

Calvin from having an answer to his aforesaid writ: therefore it is considered

by the Court of the lord the now King here, that the aforesaid Richard Smith

and Nicholas Smith to the writ of the said Robert do further answer.”

The Case of Swans.

(1592) Trinity Term, 34 Elizabeth I

Before the Queen’s Commissioners.

First Published in the Reports, volume 7, page 15b.

Ed.: Joan Young and Thomas Saunger received a writ from the Exchequer,

directing the sheriff of Dorset to round up 400 loose swans from the rivers

of the county. Swans are Royal fowl, however, and a wild swan is the prop-

erty of the monarch. The right to these swans in Dorset was once held by

the local abbot, who lost the right along with the abbey to Henry VIII at

the dissollution. Henry then granted the estate to Giles Strangeways, whose

heir gave them a right to the swans for one year. The question is whether

255. [Ed.: although the laws are adapted to those things that more frequently happen.]

256. [Ed.: And thus is this question determined and ended.]

[28 b]

The Case of Swans 233

the swans were Strangeways’s or remained the Queen’s. Coke, as Solicitor

General, represented the Queen. The Court held that the swans that are

ferae naturae, or wild animals, cannot be given by transfer or taken by

prescription.

Between the Queen, and the Lady Joan Young, late the wife of Sir John

Young Knight deceased and Thomas Saunger defendants, the Case was such.

An Ofﬁce was found at W. in the County of Dorset, 18th of September Ann.

32 Eliz. before Sir Matthew Arundel and other Commissioners of the Queen

under the great Seal, Quod a villa de Abbotsbury, in praed’ com’ Dorset, usque

ad mare per insulam de Portland in eodem Com’ est quaedam aestuaria, Anglice`

a Mere or Fleet, in quam mare ﬂuit et reﬂuit, in qua quidem aestuaria sunt 500

cigni, quorum 410. sunt albi, et 90 cignetti, et quod omnes praedicti cigni et

cignetti sunt in possessione J. Young & Tho. Saunger, & quod quilibet eorum est

valoris 2s. 6d. quodque major pars tempore captionis dictae inquisitionis minime

fuer’ signat’:

which Ofﬁce being certiﬁed into the Exchequer, a writ was di-

rected to the Sheriff of the same County to seise all the said white Swans not

marked, by force whereof the Sheriff returned, that he had seised 400 white

Swans, &c. To which afterwards, Hil. 34 Eliz. the said | Joan Young and

Thomas Saunger pleaded; Quod praedict’ aestuaria sive aqua, jacet in paroch’

de Abbotsbury in Com. Dorset

(and abutted it) and that before the Inquisition

taken, the Abbot of Abbotsbury was seised de praed’ aestuaria, et de ripis et

solo ejusdem

in fee, and that at the time of the inquisition, and time out of

mind, fuit et adhuc est quidam volatus cignorum et cignettor’ feror’, vocat’ a game

of wild swans, &c. in aestuaria sive aqua illa, et ripis, et solo ejusdem nidiﬁcant’,

gignen’ et frequentant’ Anglice haunting, de quo quidem volatu cignor’ et cignettor’

praed’ abbas et omnes praedecessores sui Abbates Monasterii praed’, per totum

tempus praedict’ habuere et gavisi fuerunt, et habere et gaudere consueverunt, tot’

1. [Ed.: that from the vill of Abbotsbury in the aforesaid county of Dorset as far as the sea, by the island

of Portland in the same county, there is a certain estuary, called in English a ‘mere’ or ‘ﬂeet’, in which the

sea ebbs and ﬂows, in which estuary there are ﬁve hundred swans, whereof four hundred and ten are white

and ninety are cygnets, and that all the aforesaid swans and cygnets are in the possession of Joan Young

and Thomas Saunger, and that each of them is worth two shillings and sixpence, and that the greater part

of them at the time of the taking of this inquisition were unmarked.]

2. [Ed.: That the aforesaid estuary or water lies in the parish of Abbotsbury in the county of Dorset.]

3. [Ed.: of the aforesaid estuary and of the banks and soil of the same.]

[16 a]

Part Seven of the Reports234

proﬁc’ et increment’ omnium et singulor’ cignor’ et cignettor’ feror’, in aestuaria

praed’ nidiﬁcant’, gignen’ et frequent’ qui quidem cigni et cignetti per totum

tempus praed’ fuerunt ferae naturae, et infra idem tempus iidem cigni et cignetti

seu eorum aliqui aliquo signo non usi fuissent, nec consuevissent signari, nisi quod

praed’ nuper Abbas et praedecessores sui praed’ per totum tempus praed’ ad eorum

libitum quosd’ seu aliquos de minorib’ cignettis annuatim pullulant’ quos ad usum

et culinae et hospitalitatis suae statuerunt expendend’, in hunc modum annuatim

signare consueverunt, et usi fuerunt viz. amputare mediam juncturam unius alae,

Anglice, to cut off the pinion of one wing, cujuslibet talis cignetti, ea intentione,

quod cignetti sic amputati minime valerent avolare.

And afterwards the Abbot

surrendered the premises to King Henry the eighth who anno 35 of his Reign

granted to Giles Strangways, Esq. by his Letters Patent inter alia, totam illam

liberam Piscariam nostr’ in aqua, vocat’ the Fleet Abbotsbury praed’, ac omnia

messuag’, aquas, piscat’ et caetera haereditam’ nostr’ quaecunque in Abbotsbury,

in dict’ Com’ Dorset dict’ nuper Monasterio, &c. adeo plene et integre, &c. et in

tam amplis modo et forma &c.

and that the said Giles died, and that the same

descended to Giles Strangways his Cousin and heir, who demised to the De-

fendants the said Game of swans for one year, &c. and prayed quod manus

dictae dominae Reginae amoveantur.

Upon which the Queen’s Attorney did

demur in the law.

4. [Ed.: there was and still is a certain ﬂock of wild swans and cygnets called ‘a game of wild swans’

in that estuary or water, nesting, breeding and congregating—in English ‘haunting’—in the banks and

soil of the same, of which same game of swans and cygnets the aforesaid abbot and all his predecessors,

as abbots of the aforesaid monastery, for the whole time aforesaid, have had and enjoyed and have been

accustomed to have and enjoy all the proﬁt and gain of all and singular the wild swans and cygnets nesting,

breeding and haunting in the estuary aforesaid, which swans and cygnets for the whole time aforesaid were

ferae naturae (of a wild nature), and within the same time neither the same swans and cygnets nor any of

them were used or accustomed to be marked with any mark, save that the aforesaid late abbot and his

aforesaid predecessors for the whole time aforesaid have been accustomed annually to mark at their free

pleasure some of the smaller cygnets coming forth each year which were to be spent in his kitchen and

hospitality, in this manner, namely to amputate the middle joint of one wing—in English ‘to cut off the

pinion of one wing’—of every such cygnet, with the intention that the cygnets so amputated should not

be able to ﬂy away.]

5. [Ed.: amongst other things, all that our free ﬁshery in the water called ‘the ﬂeet’ in Abbotsbury

aforesaid, and all messuages, waters, ﬁsheries and other our hereditaments whatsoever in Abbotsbury in

the said county of Dorset [belonging] to the said late monastery etc., as plainly and fully etc. and in as

ample a manner and form, etc.]

6. [Ed.: that the hands of the lady queen be ousted.]

The Case of Swans 235

1. It was Resolved, That all white Swans not marked, which having gained

their natural liberty, and are swimming in an open and common River, might

be seised to the King’s use by his prerogative, because that Volatilia, (quae sunt

ferae naturae) alia sunt regalia, alia communia: and so Aquatilium, alia sunt

regalia, alia communia:

as a Swan is a Royal fowl; and all those, the property

whereof is not known, do belong to the King by his prerogative: and so Whales

and Sturgeons are Royal Fishes, and belong to the King by his Prerogative.

And there hath been an ancient Ofﬁcer of the King’s, called Magister deductus

cignorum,

| which continueth to this day. But it was Resolved also, That the

subject might have property in white Swans not marked, as some may have

swans not marked in his private waters, the property of which belongs to him,

and not to the King; and if they go out of his private waters into an open and

common River, he may bring them back and take them again. And therewith

agreeth Bracton, lib. 2. cap. 1. fo. 9. Si autem animalia fera facta fuerint man-

sueta, & ex consuetudine eunt, & redeunt, volant, & revolant, (ut sunt Cervi,

Cigni, Pavones, et Columbae, et hujusmodi) eousque nostra intelligantur, quam-

diu habuerint animum revertendi.

But if they have gained their natural liberty,

and are swimming in open and common Rivers, the King’s Ofﬁcer may seise

them in the open and common River for the King: for one white Swan, without

such pursuit as aforesaid, cannot be known from another, and when the prop-

erty of a swan cannot be known, the same being of its nature a Fowl Royal,

doth belong to the King; and in this case the book of 7 Hen. 6. 27. was vouched,

where Sir John Tiptoft brought an action of Trespass for wrongful taking of

his Swans; the Defendant pleaded that he was seised of the Lordship of S.

within which Lordship, all those whose estate he hath in the said Lordship,

had had time out of mind, &c. all estreies being within the said Manor; and

we say that the said Swans were estraying at the time in the place where, &c.

and we as Landlords did seise and make proclamations in Fairs and Markets,

and so soon as we had notice that they were your Swans, we delivered them

to you at such a place. The Plaintiff replied, That he was seised of the Manor

of B. joining to the Lordship of S. and we say, that we and our Ancestors,

7. [Ed.: because fowl, which are of a wild nature, are sometimes royal and sometimes common.]

8. [Ed.: master of the game of swans.]

9. [Ed.: But if wild animals are made tame, and are accustomed go and return, or ﬂy away and ﬂy

back, as do deer, swans, peacocks and pigeons, and the like, they shall be understood to be ours so long

as they have animus revertendi (the intention of returning).]

[16 b]

Part Seven of the Reports236

and all those, &c. have used time out of mind, &c. to have Swans swimming

through all the Lordship of S. and we say, that long time before the taking

we put them in there, and gave notice of them to the Defendant that they

were our Swans; and prayed his Damages. And the opinion of Strange there

was well approved by the Court, that the Replication was good: For when

the Plaintiff may lawfully put his swans there, they cannot be estrays, no more

than the Cattle of any can be estrays in such place where they ought to have

Common; because they are there where the Owner hath an interest to put

them, and in which place they may be without negligence or laches

of the

Owner. Out of which Case, these points were observed concerning Swans, 1.

That every one who hath Swans within his Manor, that is to say, within his

private waters, hath a property in them, for the Writ of Trespass was of wrongful

taking his Swans; scil. Quare cignos suos &c.

2. That one may prescribe to

have a game of Swans within his Manor, as well as a Warren, or Park. 3. That

he who hath such a game of Swans may prescribe, that his Swans may swim

within the | Manor of another. 4. That a swan may be an Estray, and so cannot

any other Fowl, as I have read in any Book. In 2 Rich. 3. 15 & 16. The Lord

Strange and Sir John Charlton brought an Action of Trespass against 3, because

the Defendants had taken and carried away 40 Cygnets of the Plaintiff’s in

the County of Bucks, to his damages of 10 l. One of the Defendants pleaded,

That the water of the Thames ran through the whole realm, and that the

County of Buckingham is adjoining to the Thames, and that the custom of

the said County of Buckingham is, and hath been time out of mind, &c. That

every Swan (for Cignet in the book is taken for a Swan) which hath course

in any water, which water runs to the Thames within the same County. That

if any Swan cometh on the land of any man, and there builds, and hath Cignets

on the same land, that then he who hath the property of the Swan shall have

2 of the Cignets, and he who hath the land shall have the third Cignet, which

shall be of less value than the other 2; and that was adjudged a good custom,

because the possessor of the Land suffers them to build there, where he may

drive them off. And by this Judgment it also appears, That a man may allege

a Custom or Prescribe in Swans or Cignets. And in the same Case it is said,

That the truth of the matter was, that the Lord Strange had certain Swans

10. [Ed.: unreasonable delay.]

11. [Ed.: that is to say, why [he took] his swans, etc.]

[17 a]

The Case of Swans 237

which were Cocks, and Sir John Charleton certain Swans which were Hens,

and they had Cignets between them; and for these Cignets the owners did

join in one Action, for in such case by the general custom of the Realm, which

is the Common Law in such case, the Cignets do belong to both the owners

in common equally, scil. to the owner of the Cock, and the owner of the Hen;

and the Cignets shall be divided betwixt them. And the Law thereof is founded

on a reason in nature; for the Cock Swan is an emblem or representation of

an affectionate and true Husband to his Wife above all other Fowle; for the

Cock Swan holdeth himself to one female only; and for this cause nature hath

conferred on him a gift beyond all others; that is, to die so joyfully, that he

sings sweetly when he dies; upon which the Poet saith,

Dulcia defecta modulatur carmina lingua,

Cantator, cygnus, funeris ipse sui, &c.

And therefore this case of the Swan doth differ from the case of Kine, or

other brute beasts. Vide 7. Hen. 4. 9. And it was agreed that none can have

a Swan mark, which in Latin is called cigninota

if it not be by the grant of

the King, or of his Ofﬁcers authorised thereto, or by prescription. And if he

hath a lawful Swan-mark, and hath Swans swimming in open and common

Rivers, lawfully marked therewith, they belong to him ratione privilegii.

But

none shall have a Swan-mark, or Game of Swans, if he hath not Lands or

Tenements of an Estate of Freehold of the yearly value of ﬁve Marks, above

all charges, on pain of forfeiture of his Swans, whereof the King shall have

one moiety, and he who seises shall have the other moiety: and that is by the

stat. of 22 Edw. 4. cap. 6. And he who hath such Swan-mark may grant it

over. And thereof I have seen a notable precedent in the time of Henry the

sixth which is such, Notum sit omnib’ hominib’ praesentib’ et futuris, quod ego

J. Steward Miles, dedi et | concessi Tho’ ﬁl’ meo primogenito, et haeredib’ suis,

cigninot’ meam armor’ meor’, prout in margine laterali pingitur, quae mihi jure

haereditar’ descendeb’ post mort’ J. Steward mil’ patris mei: Habend’ sibi et hae-

redib’ suis, una cum omnib’ cignis et cignicul’ cum dicta nota baculi nodati signat’,

12. [Ed.: The swan, chanter of its own death, modulates sweet songs with failing tongue [Martial,

Epigrams, 13. 77. 1.].]

13. [Ed.: swan mark.]

14. [Ed.: by reason of privilege.]

[17 b]

Part Seven of the Reports238

sub condit’ quod quilib’ feria solis durante vita a gula Augusti, usque ad Cornis-

privium apud dom’ meam de Darford, unum cignicul’ bene signat’ mihi aut meis

deliberet, quod si defecerit, tunc volo, quod hoc praesens chirographum cassetur

penitus, et pro nihilo habeatur. In cuj’ rei testimon’ ad instant’ Matildae uxor’

meae, meum sigil’ secret’ Christi cruciﬁxi praesentib’ feci apponi. Hiis testib’ R.

Clerico, J. D. Conyers, Alano Fabro, et al’ Dat. apud dom’ meam mansional’ de

Darf. in vigilia S. Dunst’ ep’ an’ regni Regis Hen’ post conquest’ Angliae sexti.

14. And in the Margent was printed a little ragged staff. And in this case it

was resolved, that in some of them which are ferae naturae,

a man hath jus

proprietatis,

a right of property, and in some of them a man hath jus priv-

ilegii,

a right of privilege. And there are three manner of rights of property,

scil. property absolute, property qualiﬁed, and property possessory. A man

hath not absolute property in any thing which is ferae naturae, but in those

which are domitae naturae.

Property qualiﬁed and possessory a man may

have in those which are ferae naturae; and to such property a man may attain

by two ways, by industry, or ratione impotentiae et loci;

by industry as by

taking them, or by making them mansueta, i.e. manui assueta, or domesticae,

i.e. domui assueta:

But in those which are ferae naturae, and by industry are

made tame, a man hath but a qualiﬁed property in them, scil. so long as they

remain tame, for if they do attain to their natural liberty, and have not animum

revertendi,

the property is lost, ratione impotentiae et loci: As if a man has

15. [Ed.: Be it noted by all men present and to come that I, J. Steward, knight, have given and granted

to Thomas, my ﬁrstborn son, and his heirs, my swan-mark of my arms, as painted in the side-margin,

which descended to me by hereditary right after the death of J. Steward, knight, my father, to have and

to hold unto him and his heirs, with all the swans and cygnets marked with the said sign of a knotted

staff, upon condition that every Sunday during his lifetime between the gule of August [i.e., Lammas] and

Carnisprivium [i.e., the beginning of Lent] he shall deliver to me or mine at my house of Darford one

cygnet well marked; and, if he defaults, then I will that this my present chirograph should be utterly quashed

and had for naught. In witness whereof, at the instance of my wife Maud, I have caused my privy seal

with the cruciﬁx to be set to the presents, these being witnesses: R. Clerk, J. [de] Conyers, Alan Smith,

and others. Given at my mansion house of Darford on the vigil of St Dunstan the Bishop in the fourteenth

year of the reign of King Henry the sixth after the conquest.]

16. [Ed.: of a wild nature.]

17. [Ed.: right of property.]

18. [Ed.: right of privilege.]

19. [Ed.: domesticated by nature.]

20. [Ed.: by reason of powerlessness and place.]

21. [Ed.: domesticated, that is, habituated to the house.]

22. [Ed.: intention of returning.]

The Case of Swans 239

young Shovelers or Goshawks, or the like, which are ferae naturae, and they

build in my land, I have possessory property in them, for if one takes them

when they cannot ﬂy, the owner of the soil shall have an action of Trespass,

Quare boscum suum fregit, et tres pullos espervor’ suor’, or aidear’ suar’ pretii

tantum, nupe in eod’ bosco nidiﬁcant’, cepit, et asportav’;

and therewith agreeth

the regist. and F. N. B. 86. (D) L. & 89. K. 10 Edw. 4. 14. 18 Edw. 4. 8. 14

Hen. 8. 1 b. Stamf. 25 b. &c. vide 12 Hen. 8. 4. & 18. Hen. 8. 12. But when

a man hath savage beasts ratione privilegii, as by reason of a Park, Warren,

&c. he hath not any property in the Deer, or Conies, or Pheasants, or Par-

tridges, and therefore in an action, Quare Parcum Warrennum, &c. fregit et

intrav’, et 3. damas, lepores, cuniculos, phasianos, perdices, cepit et asportavit,

he shall not say (suos)

for he hath no property in them, but they do belong

to him ratione privil’ for his game and pleasure, so long as they remain in the

privileged place; for if the owner of the Park dies, his heir shall have them,

and not his Executors or Administrators, because without them the Park,

which is an | Inheritance, is not complete; nor can Felony be committed of

them, but of those which are made tame, in which a man by his industry hath

any property, Felony may be committed. And therewith agrees the rule of the

book in 3 Hen. 6. 55 b. 8 Edw. 4. 5 b. 22 Hen. 6. 59. which is ill reported,

and 43 Edw 4. 24. vide 22 Ass. 12 Hen. 3. 13 Eliz. Dyer 306. 38 Edw. 3. 19.

Vide 2 Edw. 2. tit. Distress. 2 Edw. 3. Avowry 182. But a man may have property

in some things which are of so base nature, that no Felony can be committed

of them; and no man shall lose life or member for them, as of a Blood-hound

or Mastiff, molessus,

12 Hen. 8. 3. Vide 18 Hen. 8. 2. But he who steals the

Eggs of Swans out of the Nest shall be imprisoned for a year and a day, and

ﬁned at the will of the King; one moiety to the King, the other to the owner

of the Land where the eggs were so taken, and that is by the Statute of 11 Hen.

7. cap. 17. And it hath been said of old time, That he who steals a Swan in

an open and common River, lawfully marked, the same Swan (if it may be)

or another swan, should be hung in a house by the beak, and he who stole

23. [Ed.: [to show] Why he broke his wood, and took and carried away three sparrowhawk chicks, of

such and such a price, lately nesting in the same wood.]

24. [Ed.: [to show] Why he broke and entered the park, warren, etc., and took and carried away three

does [or] hares, rabbits, pheasants, partridges.]

25. [Ed.: his.]

26. [Ed.: mastiff.]

[18 a]

Part Seven of the Reports240

it shall in recompence thereof be obliged to give the owner so much Wheat

that may cover all the swan, by putting and turning the Wheat on the head

of the Swan, until the head of the Swan be covered with the Wheat. And it

was resolved, That in the principal case the prescription was insufﬁcient; for

the effect of the prescription is to have all wild Swans, which are ferae naturae,

and not marked nidiﬁcant, gignent, et frequentant’,

within the said Creek.

And such prescription for a Warren would be insufﬁcient, scil. to have all

Pheasants and Partridges, nidiﬁcantes, gignentes,

and frequenting within his

Manor. But he ought to say, to have free Warren of them within his Manor:

For although they are nidiﬁcantes, gignentes, and frequenting within the manor,

he cannot have them jure privilegii,

but so long as they are within the place.

But it was resolved, That if the defendants had alleged, that within the said

Creek there had been time out of mind &c. a game of wild Swans not marked,

building and breeding; and then had prescribed, that such Abbot and all his

Predecessors, &c. had used at all times to have and take to their use some of

the said Game of wild Swans and their Cignets within the said creek, it had

been good; for although Swans are royal Fowls, yet in such a manner a man

may prescribe in them: for that may have a lawful beginning by the King’s

grant: For in Rot. Parliam 16 Rich. 2. part. 1. numero. 3a. like grant was of

wild Swans unmarked in the County of Cambridge, to B. Bereford, Knight.

The like grant in Rot Parl. anno 30 Edw. 3 part 2. num. 20. the King granted

to C. W. all his wild Swans unmarked between Oxford and London for seven

years. In Rot. Parl. an. 1 Hen. 4. part. 6. numer. 14. A grant was made to John

Fenne, to survey and keep all wild swans unmarked; ita quod de proﬁcuo res-

pondeat ad Scaccarium.

| By which it appear, that the King may grant wild

Swans unmarked; and by consequence a man may prescribe in them within

a certain place, because it may have a lawful beginning. And a man may

prescribe to have Royal Fish within his Manor, as it is held in 39 Edw. 3. 35.

for the reason aforesaid. And yet without prescription they do belong to the

King by his Prerogative.

27. [Ed.: of a wild nature.]

28. [Ed.: nesting, breeding and haunting.]

29. [Ed.: nesting, breeding.]

30. [Ed.: by right of privilege.]

31. [Ed.: so that he answer for the proﬁt to the Exchequer.]

[18 b]

Penal Statutes 241

Penal Statutes.

(1605) Hilary Term, 2 James I.

Before all the Justices of England.

First Published in the Reports, volume 7, page 36b.

Ed.: Queen Elizabeth issued a grant that would allow its recipient to be

free of the burdens of a penal statute, giving the grant before there was a

judgment against the recipient for violating the statute. The grant also

allowed the recipient to give similar dispensations to others. This is contrary

to the law and will not be allowed, a view that would be reﬂected in the

seventeenth century in England’s Bill of Rights. This case is an important

illustration of common law limits on Royal authority and is essentially an

enforcement of separation of powers between the Parliament and the

Crown. Look for wonderful metaphors on the King’s powers in law, and

their limits.

This Term upon Letters directed to the Judges to have their Resolution

concerning the validity of a Grant made by Queen Elizabeth, under the great

Seal, of the penalty and beneﬁt of a penal Statute, with power to dispense

with the said statute, and to make a warrent to the Lord Chancellor, or Keeper

of the great Seal, to make as many dispensations, and to whom he pleased;

And upon great Consideration and deliberation by all the Judges of England,

It was Resolved, That the said grant was utterly against Law. And in this case

these points were Resolved, 1. That when a Statute is made by Parliament for

the good of the Commonwealth, the King cannot give the penalty, beneﬁt,

and dispensation of such Act to any subject; Or give power to any subject to

dispense with it, and to make a warrant to the great Seal for Licences in such

case to be made: For when a Statute is made pro bono publico,

and the King

(as the head of the Commonwealth, and the fountain of Justice and Mercy)

is trusted the whole Realm with it; this conﬁdence and trust is so inseparably

joined and annexed to the person of the King in so high a point of Sovereignty,

that he cannot transfer the same to the disposition or power of any private

person, or to any private use: for it was committed to the King by all his

1. [Ed.: for the public good.]

Part Seven of the Reports242

Subjects for the good of the Commonwealth. And if he may grant the penalty

of one Act, he may grant the penalty of Two, and so in inﬁnitum.

And such

grant of a penalty was never seen in our Books. But it is true, the King may

(upon any cause moving him in respect of time, place, or person, &c.) make

a Non Obstante

| to dispense with any particular person, that he shall not

incur the penalty of the Statute, and therewith agree our books. But the King

cannot commit the Sword of his Justice, or the Scale of his Mercy, concerning

any penal Statute to any subject, as is aforesaid. 2. It was also Resolved, That

the penalty of an Act of Parliament cannot be levied by any grant of the King,

but only according to the purpose and purview of the Act: for the Act which

gives the penalty ought to be followed only in the prosecution and levying

thereof: and great inconveniences would thereon follow, if penal Laws should

be transferred to subjects. 1. Justice thereby should be scandalized; for when

such Forfeitures are granted, or promised to be granted before they are re-

covered, the same is the cause of a more violent and undue proceeding. 2.

When it is publicly known, that the Forfeiture and penalty of the Act of

Parliament is granted, it is a great cause that the Act itself is not executed; for

the Judge and Jurors, and every other, is thereby discouraged. 3. Thereupon

would follow, that no penalty should by any Act of Parliament be given to

the King, but limited to such uses with which the King could not dispense.

And hereupon divers who had sued to have the beneﬁt of certain penal Laws,

were upon this Resolution denied. And the Certiﬁcate of all the Judges of

England concerning such grants of penal Laws and Statutes was in these words.

“May it please your lordships, we have (as we are required by your honourable

Letters of the 21st of October last) conferred and considered amongst ourselves

(calling to us his Majesty’s Counsel learned) of such matters as were thereby

referred unto us, and have thereupon, with one consent, resolved for Law and

conveniency as followeth: First, That the prosecution and execution of any

penal Statute cannot be granted to any, for that the Act being made by the

policy and wisdom of the Parliament for the general good of the whole Realm,

and of trust committed to the King, as to the head of Justice, and of the weal

public, the same cannot by Law be transferred over to any subject; neither

can any penal Statute be prosecuted or executed by his Majesty’s grant, in

2. [Ed.: inﬁnitely.]

3. [Ed.: Notwithstanding; an order relieving a person of a power or a liability.]

[37 a]

Penal Statutes 243

other manner or order of proceeding, than by the Act itself is provided and

prescribed: Neither do we ﬁnd any such grants in any former ages: And of

late years, upon doubt conceived, that penal Laws might be sought to be

granted over, some Parliaments have forborn to give forfeitures to the Crown,

and have disposed thereof to the relief of the Poor, and other charitable uses,

which cannot be granted or employed otherwise. We are also of opinion, That

it is inconvenient, that the Forfeitures upon penal Laws or others of like nature.

should be granted to any other before the same be recovered or vested in his

Majesty by due and lawful proceeding; for that in our experience | it maketh

the more violent and undue proceeding against the subject, to the scandal of

Justice, and the offence of many. But if by the industry or diligence of any,

there accrueth any beneﬁt to his Majesty, after the recovery, such have been

rewarded out of the same at the King’s good pleasure, &c. Dated 8 November,

1604.” And to this Letter all the Judges of England set their hands.

[37 b]

Part Eight of the Reports

The Eighth Part of Coke’s Reports was published in 1611. It was originally

entitled La huictime part des Reports de Sr. Edvv. Coke. Chevalier, Chiefe Justice

del Common Banke: des divers resolutions & jugements donez sur solennes ar-

guments & avec grand deliberation & conference des tresreverends juges & sages

de la ley, des cases en ley queux ne fueront unques resolus ou adjudgez par devant:

Et les raison & causes des dits resolutions & jugements: publie en le neufme an

de treshaut & tresillustre Jaques roi Dengl. Fr. & Irel. & de Escoce le 44. Le

Fountaine de tout Pietie & Justice, & la vie de la Ley. In English, The Eighth

Part of the Reports of Sir Edward Coke, Knight, Lord Chief Justice of Common

Pleas, of divers Resolutions and Judgments given upon solemn Arguments, and

with great deliberation and Conference of the reverend Judges and Sages of the

Law, of Cases in law which were never Resolved or Adjudged Before: and the

Reasons and Causes thereof. Published in the Ninth year of the most high and

Most Illustrious James, King of England, France, and Ireland, and of Scotland

the 44., the Fountain of all Justice, and the life of the Law. This rather long part

surveys a broad range of cases, particularly presenting cases on the privileges

of nobility, the privileges of the City of London and the regulation of pro-

fessions, although there are cases dealing with issues of property and inher-

itance.

Epigrams from the Title Page:

Magna Charta, cap. 29.

Nulli vendemus, nulli negabimus, aut differemus justitiam aut rectum.

1. [Ed.: To no one shall be sell, to no one shall we deny or delay, justice or right.]

Preface 245

Westm˜ 1. cap. 1.

Rex praecipit ut pax Sacrosanctae Ecclesiae, & Regni solide` conservetur & colatur in

omnibus, & quod Justitia singulis, tam pauperibus quam divitibus, administretur,

nulla habita personarum ratione.

(Preface)

Deo, Patriae, Tibi.

That which I have written as you know (learned Reader) in some of my former

prefaces of the Antiquitie & excellencie of our laws of England, hath produced

these two questions: First whether Historiographers do concurre with that

which there so constantly hath beene afﬁrmed: Secondly, seeing so great and

so often rehersall is made of the common Laws of England, what the body

or text of the common lawe is, and consequently where a man may ﬁnde it.

To both which in the end I yeelded to make answere. For the ﬁrst: albeit the

books and records (which are & vetustatis & veritatis vestigia)

cited by me in

the prefaces to the third and sixt parts of my Commentaries, are of that au-

thority that they need not the aide of any Historian: yet will I with a light

touch set downe out of the consent of Storie some proofes of the Antiquitie,

and from the censure of those persons who in respect of their profession (for

they were Monkes and Clergie men) may rather fall into a Jealousie of re-

feruednes then ﬂatterie, somewhat of the equitie and excellencie of our Lawes;

And that it doth appeare most plaine in successiue authoritie in storie what

I have positiuely afﬁrmed out of record, That the grounds of our common

laws at this day were beyond the memorie on register of any beginning, &

the same which the Norman conqueror then found within this realm of En-

gland.

The laws that Wil. Conqueror sware to observe, were bonae & ap-

probatae antiquae regni leges,

that is, the lawes of this kingdome were in the

beginning of the Conquerours raigne good, approved, and auncient. And, that

2. [Ed.: The King commands that the peace of Holy Church and the realm be ﬁrmly preserved and

kept in all respects, and that justice be administered to all, both poor and rich, with no respect of persons.]

3. [Ed.: To God, to the country, to you.]

4. [Ed.: records of age and truth.]

5. Ex vita Abbatis sancti Albabani.

6. [Ed.: the good, approved, and ancient laws of the Kingdom.]

Part Eight of the Reports246

the people might the better observe their duetie and the Conquerour his oath,

he caused twelve of the most discreete and wise men in everie shire throughout

all England, to be sworne before himself, that, without swarving, either ad

dextram or sinistram,

That is, neither to ﬂatter prerogative or extend privi-

ledge, they should declare the integritie of their lawes without concealing, adding,

or in any sort varying from the truth. And Aldred the Archbishop that had

crowned him, and Hugh the Bishop of London, by the Kings commandement

wrote that which the said Jurats had delivered: And these (as saith Ingulphus

)

by publike proclamation, hee declared to bee authentike, and, for ever, under

grievous punishment, to bee inviolably observed.

The summe of which, com-

posed by him into a Magna Charta (the groundworke of all those that after

followed) hee blessed with the seale of securitie & wish of eternitie, closing

it up with this generall: And wee further commaunde that all men keepe and

observe duely the Lawes of King Edward: rearing up the frontispice of his gratious

worke with his glorious stile, Willielmus Dei gratia Rex Anglorum, Dux Nor-

mannorum, Omnibus hominibus suis Francis & Anglicis Salute˘. Statuimus im-

primis super omnia vnum Deum per totum regnum nostrum venerari, vnam ﬁdem

Christi semper inuiolatam custodiri, pacem & securitatem et concordiam, iudi-

cium & Iusticiam inter Anglos & Normannos, Francos & Britones Walliae &

Cornubiae, Pictos & Scotos Albaniae, similiter inter & Insulanos, provinoias et

patrias quae pertinent ad coronam et dignitatem, defensionem & obseruationem

& honorem regni nostri, et inter omnes nobis subiectos per vniuersam Monarchiam

regni Britaniae ﬁrmite`r & inuiolabilite`r obseruari.

W. Ruf. that succeeded his

father,

so exceeded himself in misrule & oppression, that there is left no

7. Ex lib. Monast. de Lichﬁeld.

8. [Ed.: to the right [or] the left,]

9. Ex Ingulpho Abbate Crowlandense. Ex libro Antiquarum legum.

10. Ex libro manuscripto de legibus antiquis.

11. [Ed.: William, by the grace of God king of the English, duke of the Normans, to all his men, French

and English, greeting. We command ﬁrstly, above all things, that God be venerated throughout our realm,

the faith of Christ kept for ever inviolate, and peace, security and concord, judgment and justice between

English and Normans, French and Britons, Welsh and Cornish, Picts and Scots of Albany, likewise between

[blank] and the islanders, the province and countries which belong to the crown and dignity, defence,

notice and honour of our kingdom, and among all our subjects throughout the whole monarchy of the

kingdom of Britain, be ﬁrmly and inviolably observed.]

12. Ex Math. Par. monacho sancti Albani.

Preface 247

with unjust exactions, & the Justice corrupted with evill usages, as appeareth

by the great charter of his succeeding brother, king Henrie the ﬁrst,

who

therby tooke away all the evill customes wherewith the kingdome of England was

unjustly oppressed, and restored the Lawe of King Edward, (such Lawe as was

in the time of the holy Confessor) with those amendments which his father

added by the advise of his barons. What these were Math. Paris

(who hath

inserted the Charter in his storie) declareth to be the ancient Liberties and

Customes which ﬂourished in this kingdome in the time of holy king Edw. And

herewith agreeth Hoveden

in these words: King H. the ﬁrst took away all the

evil customes & unjust exactions wherwith the kingdome of England was unjustly

oppressed: he setled an assured peace in his whole kingdome, and commanded the

law of king Edward to be observed, he restored to all &c. The which, almost in

the same phrase, Florentius

a Monke of Worcester, and living in the raigne

of Henry the ﬁrst, observeth. And by whome the Injustice of the foregoing

age proceeded, and by whome and how redressed William

the Monk of

Malmesbury delivereth in these words: Henrie born in England, of kinglie birth,

&c. by his proclamation speedily sent through England: restrained the injustice

brought in by his brother and Ranulph &c. and abolished the unwonted lenitie

of some lawes, giving assurance by his owne and all the Nobilities oth, that they

should not be deluded &c. K. Stc. that succeeded his uncle, conﬁrmeth in his

great Chartre of liberties to the barons & commons of Eng. in these words,

All the Liberties and good lawes which H. king of England my Uncle graunted

unto them: And I graunt them all the good lawes and good customes which they

enjoyed in the raigne of K. Edw. and was so jealous of invocation, as Roger

Bacon

the learned Frier saith in his book, de impediments sapientiae: King

Stephen forbad by publicke edict that no man should reteine the Lawes of Italie

formerly brought into England. The next to this man was Hen. 2. who in another

great Charter established the former Lawes in these words.

Henrie by the

13. Ex Rogero Hoveden presbitero.

14. Ex Mat. Par.

15. Ex Roger Hoveden.

16. Ex Florentio-monach. Wigorn.

17. Ex Willielmo monacho Malmesbur.

18. Ex libro legu˜ Antiquarum.

19. Ex libro Rogeri Bacon de impedimentis sapientie.

20. Ex libro legu˜ Antiquarum.

Part Eight of the Reports248

grace of God King of England, duke of Normandie, and Aquitaine, Earle of Aniou,

to all Earles, Barons, and his faithful Subiects of France, and England, Greeting,

Know ye that I, to the honour of God & holy Church, & for the common amend-

ment of my whole kingdome, have graunted and restored, And by my Charter

conﬁrmed to God and holy church, and to all Earles and Barons, and to all my

Subjects, All grants and donations, & liberties and free customes, which king Henry

my Grandfather gave and graunted unto them. And all those evill customes which

he abolished and remitted, I likewise doe remit, and for me and my heires doe

agree shall be abolished. By which words it appeareth, that he had reference to

that Charter of his Grandfather that abolished the unjust exaction and usages

of his brothers raigne, and conﬁrmed the old and excellent laws under Saint

Edwards government. And no lesse ancient, even by the like authorities will

appeare the customes of some of our Cities: For of London saith Fitzstephen

(a Monke of Canterburie) it was built before that of Remus and Romulus (mean-

ing Rome) wherefore even to this day they use the same ancient laws publike

Ordinances &c. Let us descend a little lower to the times of King John the son

of Henrie the 2. He in the 17. yere of his raign made the two great Charters,

the one called Magna charta (not in respect of the quantitie but of the weight)

& the other Charta de Foresta, which are yet extant to this day. Of which the

Monk of Saint Albons faith,

Quae ex parte maxima leges antiquas & regni

consuetudines continebant: that is, which for the most part did conteine the

ancient lawes and customes of this Realme. And soone after he saith: And

those lawes and liberties which the Nobilitie of the Realme did there seeke to

conﬁrme, are partly in the above said Charter of king Henrie, and partly taken

out of the ancient lawes of King Edward: not that king Ed. the Confessor did

institute them, but that he out of the huge heape of the lawes, &c. chose the best

and reduced them into one, as in the preface to the third part of my reports

more at large it appeareth. The said great charters made by king John are set

downe in haec verba in Math. Par. pa. 246.

and in effect doe agree with

Magna Charta

and Charta de Foresta established & conﬁrmed by the great

charter made in 9. H. 3. which for their excellencie have since that time beene

21. Ex Stephanide monacho Ca´t.

22. Math. Par. an. domini 1215. pa.246. 247.

23. Math. Par. pa. 246.

24. Magna Carta. 9.H.3.

Preface 249

conﬁrmed & commanded to be put in execution by the wisdome & authoritie

of 30. severall parliaments and above. And these Laws are in the Register in

many writs called Liberties, for there it is said, according to the tenor of the great

charter of the liberties of England, so called of the effect, because they make free:

And Math. of Par. and others (as it appeareth before) stileth them by the same

name. So as the antiquitie and excellencie of our common lawes doe not only

appeare by Historians of our owne persuasion in Religion, but by these mon-

asticall writers: the which I have added the more at large in this point to that

which I afﬁrmed in my former prefaces, to the end that they agreeing together,

may the better persuade both parties to agree to the truth manifestly proved

by many unanswerable arguments in the said preface to the third part, and

by the authoritie of Sir John Fortescue chiefe Justice in the raign of K. Henry

the sixth amongst others at large cited in my preface to the 6. part, by all

which it is manifest, that in effect the verie bodie of the common lawes before

the conquest are omitted out of the fragments of such acts and ordinances as

are published under the title of the Laws of king Alured, Edward the I. Edward

the second, Ethelstane, Edward, Edgar, Etheldred, Canutus, Edward the Con-

fessor, or of other kings of England before the Conquest. And those few chap-

ters of Lawes yet remaining, are for the most part certaine acts and ordinances

established by the said severall kings by assent of the common councell of

their kingdome. As for the excellencie of our municipall lawes I will adde to

that which hath been said before, that the monk of Crowland

calleth them

the most just lawes, and Math. of Westmn

of them saith: They being by the

appointment of king Knute translated out of English into Latine, were by him

for their equity commanded to be observed as well in Denmarke as in England.

And of this matter thus much shall sufﬁce. But yet before I take my leave of

these Historians, I must incounter some of them in two maine points. First,

that the trial by Juries of 12. men (which is one of the invincible arguments

of the antiquitie of the common laws, being only appropriated to them) was

not instituted by the powerful wil of a Conqueror, as some of them peremp-

torily afﬁrme they were. The 2. that the Court of common pleas was not

erected after the statut of Magna Charta (which was made in the 9. yere of

king Henry the third) contrary to that which others do hold. For the ﬁrst, I

25. Ex Monache Crowlandiae.

26. Ex Math. Westm.

Part Eight of the Reports250

referre the learned Reader to the preface before the 3. part of my Reports,

where he shall receive full & cleare satisfaction herein, and will onely adde

the judgement of the great ornament (in his kinde) of this kingdome in his

Britania pag. 109. with which I wil conclude this point: But wheras Polidore

Virgil writeth, that Wil. the Conqueror ﬁrst brought in the trial by 12. men, there

is nothing more untrue, for it is most certaine and apparent by the laws of Eth-

eldred, that it was in use many yeres before: Neither hath hee any cause to terme

it a terrible Judgement; for free-borne and lawfull men, are duly by order im-

panelled & called forth of the neighborhood; these are bound by othe to pronounce

and deliver up their verdit touching the fact; they heare the counsell plead on both

sides before the bench or Tribunal, and the depositions of witnesses, the taking

with them the evidences of both parties, they are shut up together and kept from

meat drink and ﬁre (unlesse peradventure some one of them bee in danger of death)

until they be agreed of the matter in fact: which when they have pronounced before

the Judge he according to Law giveth sentence. For this manner of triall our most

wise & provident ancestors thought the best to ﬁnde out the truth, to auoid cor-

ruption, & to cut off all partiality & affections. And for the excellencie and

indifferencie of this kinde of triall, and why it is onely appropriated to the

common lawes of England, reade Justice Fortescue cap. 25. 26. 27. 28. 29. 30.

31. 32.&c. which being worthy to be written in letters of gold for the weight

and worthines thereof, I will not abridge any part of the same, but referre the

learned Reader to the fountaine it selfe.

As to the second, it is clearer then the light at noon day, that the court of

Common pleas was not erected after the statute of 9. H. 3. Cap. 1. 1. Common

pleas shall not follow our Court, but shal be holden in some place certaine. First,

at the same time, and in the same great Charter, and in the next Chapter

saving one, the Court of common pleas is expresly named; Assises of Darreine

presentment shall alwaics bee taken before the Justices of the Bench, & no man

doubteth but Justiciary¨ de Banco are Justices of the Common pleas. 2.King

Henry the ﬁrst, the sonne of the Conquerour, by his Charter, graunted to the

Abbot of B. a Charter of conﬁrmation of all his usages &c. And further

graunted, that hee should have Conusance of all manner of pleas, so that the

Justices of the one bench, or of the other, or Justices of Assise, should not

meddle &c. and this Charter appeareth in 26. lib. Ass. pl. 24.

3. In the booke

27. 26. lib. Assi. pl. 24.

Preface 251

case of 6. Edw. 3. fol. 54. 55

it appeareth, that 15.

Mich. in the sixt yere of

king Richard the ﬁrst, a ﬁne was levied betweene the Abbot of S. and Theoband

C. of the advowson of the Church of Preston, before the Archbishop of Can-

terbury, the Bishop of Rochester and others (Justices del Banke, that is, of the

court of common Pleas.) And it appeareth in Master Plowdens Com. in Stowels

case,

that ﬁnes were levied before the Conquest. In the Treasorie there are

yet remaining some fragments of records and judgements in the raigne of king

Rich. the 1. as wel coram Justiciariis de Banco, as coram Rege. Martin de Pateshull

was made Justiciarius de Banco in the ﬁrst yere of H.3.

which was before the

statute of Magna Charta. And in an. 10. Ed. 4. fo. 53

all the Judges of England

did afﬁrme, that the Chauncery, Kings Bench, Common-place, andEschequer,

be all the kings Courts, and have bene time out of memory of man; so as no

man knoweth which of them is the most auncient. But in a case so clere this

shall sufﬁce. And yet let me observe, that divers Bishops and other Eccle-

siasticall persons in ancient time, did studiously reade over the lawes of En-

gland, and thereby attained to great and perfect knowledge of the same. And

the saide Martin de Pateshull who was, as before is saide, chiefe Justice of the

Court of Common pleas in the ﬁrst yere of king Hen. the third, was also Deane

of Paules; of whome it is said that he was a man of great wisdome and exceeding

well learned in the Lawes of this Land. And John Britton

bish. of Hereford,

wrote an excellent worke in the daies of King Edward the 1. of the common

lawes of England, which remaine to this day. And many Noblemen have been

excellently learned in the laws of England, as taking one example for many,

least this preface should grow too large, Ranulphus de Meschives the great and

worthy Earle of Chester and the third and last of that family, (having as mine

Author saith) great knowledge and understanding in the lawes of this Land,

compiled a Booke of the same Lawes, as a witnesse of his great skill therein:

of whom Mathew Par. pag. 350.

reporteth (as an effect of his learning and

knowledge in the Lawes of this Realme:) But Ranulph Earle of Chester alone

28. 6. Ed. 3. 54. 55.

29. 15. Mich. 6. Ric. primi.

30. Pl. Com. in Stowels case.

31. Ex. rot. Pat. de anno 1.H.3.

32. 10. Ed. 4. 53.

33. Joh. Briton Episcopus Heref.

34. Math. Par. pa. 350.

Part Eight of the Reports252

valliantly resisted, as not willing to bring his Countrey into servitude (by paying

of Tenths to the Pope:) And would not suffer the religious or Clerkes of his fee to

pay the sayde Tenths, although all England and Wales, Scotland and Ireland, were

compelled to pay them. And at a partiament holden in the twentieth yeare of

king Henry the third,

the Act saith: All the Bishops desired the Lordes that they

would consent, That all such as were borne afore Matrimony should be legitimate

as well as they that be borne within Matrimony, as to the succession if inheritance,

forasmuch as the Church accepteth such for legitimate: And all the Earles and

Barons with one voyce answered, That they would not change the laws of this

Realme, which hitherto have beene used and approved. Which uniforme and

resolute answere of all the nobilitie of England, nullo contradicente,

doth

shew the inward and affectionate love & reverence they bare unto the common

Lawes of their deere Countrie. The certaine and continual practise of the

common lawes of England soone after the Conquest, even in the time of King

Henry the ﬁrst the Conquerours sonne (which almost was within the smoake

of that ﬁerie Conquest) and continued ever since, doe plainely demonstrate

that those lawes were before the dayes of William the Conquerour. For it had

not beene possible to have brought the Lawes to such a perfection as they

were in the raigne of King Henry the second succeeding, if the same had beene

so sodainely brought in or instituted by the Conquerour: Of which lawes this

I will say, That there is no humane Lawe within the circuit of the whole world,

by inﬁnite degrees, so apt and proﬁtable for the honorable, peaceable, and

prosperous governement of this kingdome, as these auntient and excellent

lawes of England be.

Ranulphus de Glanuilla chiefe Justice, in the raigne of King Henry the sec-

ond, learnedly and profoundly wrote of part of the Laws of England (whose

workes remaine extant at this day:) and in his preface he writeth, That the

king did governe this realme By the lawes of the kingdome, and by customes

founded upon reason, & of antient time obtained. By which words spoken so

many hundred yeres since, it appeareth, that then there were Lawes and Cus-

tomes of this kingdome grounded upon reason and of antient time obtained,

which hee neither could nor would have afﬁrmed, if they had beene so recently

and almost presently before that time instituted by the Conquerour. And in

35. St. Merton c.9.

36. [Ed.: no one speaking against.]

Preface 253

token of my thankfulnes to that worthy Judge,

whom I cite many times in

these Reports, (as I have done in my former) for the fruit, which I confesse

my selfe to have reaped out of the faire ﬁeldes of his labors, I will, for the

honor of him, and of his name and posteritie, which remaine to this day (as

I have good cause to know) impart and publish both to all future and suc-

ceeding ages which I have found of great antiquity, & of undoubted verity;

the original wherof remaineth with me at this day, and followeth in these

words. Ranulphus de Glanvilla Justiciarius Angliae,

fundator fuit domus de

Butteley

in com’ Suff. quae fundata erat anno Regis H. ﬁlii imperatricis 17. &

anno dom’ 1171. quo anno Tho. Becket Cantuar’ archiepiscopus erat occisus. Et

dictus Ranulphus nascebatur in villa de Stratford in com’ Suff. & habuit ma-

nerium de Benhall cum toto dominio ex dono dicti regis

H. Et duxit in uxorem

quandam

Bertam ﬁliam domini Theobaldi de Valeymz senioris, dom’ de Par-

ham, qui Theobald per cartam suam dedit dicto Ran˜ & Bertae uxori suae totam

terram de Brochous cum pertin’, in qua domus de Butteley sita est, cum aliis terris

& tenementis in libero maritagio. Pradictus vero` Ranulphus procreavit tres ﬁlias

de dicta

Berta, viz. Matildam, Amabiliam, & Helewisam, quibus dedit terram

suam ante progressum suum versus terram sanctam.

Matilda, prima soror, habuit

ex dono patris sui totam villam de Benhall integralite`r una` cum advocatione

ecclesiae ﬁve monasterii beatae Mariae de Butteley, & nupsit cuidam militinomine

Will de Auberuille, de quibus processit Hugo de Auberuille, de ipso Hugone

Will de Auberuille, de ipso Willielmo processit quaedam Johanna ﬁlia unica &

haeres, quae nupsit cuidam militi de Cancia nomine Nicholao Kyryell qui duxit

in uxorem Margaretam ﬁliam dom’ Galfridi Peche; & ille Nich’ vendidit dom’

Guidoni Ferr¯ praedict’ manerium de Benhall: & tum ille Nich’ de uxore sua

genuit alium dom’ Nich’ militem in Cancia, qui vixit ante primam pestilentiam.

Ipse autem Guido talliavit praedictum maner’ in cur’ dom’ Regis apud Westm’

in crastin’ Ascensionis dom’, anno regni regis E. ﬁlij E. primo, sibi & Alianorae

37. He did beare azure, a chiefe indented or: which coatearmor the Pastons of Norf: doe quarter at this

day.

38. Justiciarius Angliae. [Ed.: For translations of notes 38–50 see note 51.]

39. Fundator prioratus de Butteley.

40. Donum Regis.

41. Uxor eius.

42. Filiae eius.

43. Nuptie et dotationes ﬁliaru˜, & earum posteritas.

Part Eight of the Reports254

uxori suae & haeredib’ dese exeunt’: Et si ipse Guido sine haerede decederet, rem’

Wil’ de S. Quintino & haeredibus. Amabilia, secunda soror, habuit ex dono

patris sui medietatem vill’ de Bawdeseia & medietatem vill’ de Fynbergh.Amabilia

praedicta habuit virum nomine Radulphum de Ardern, de quo processit Tho.

de Ardern ﬁlius & haeres, De Th’ Radul ﬁlius & haeres, qui feossauit priorem

& conuentum de Butteley de medietate villae de Bawdesey. De predicto Radulpho

processit quidam Tho. Ardern ﬁlius & haeres. Helewisa, tertia soror, habuit ex

dono patris sui aliam medietatem villae de Bawdesey praedicta, et aliam medie-

tatem villae de Fynbergh praedicta. Helewisa praedicta habuit virum nomine

Robertu˜ ﬁlium Rob. de quo processit Rad’ ﬁlius et haeres, qui feoffavit Warinum

de Insula de medietate praedicta villae de Fynbergh. De Rad’ processit Rob’

ﬁlius & haeres qui feoffavit Ran’ fratrem suum de medietate praedicta villae de

Bawdesey. Et nota, quod praefatus Ranulp’ de Glanuilla fuit vir praeclarissimus

genere, utpote de nobili sanguine,

vir insuper strenuissimus

corpore,

qui pro-

vectiori aetate ad terram sanctam properauit,

& ibid’ contra inimicos crucis

Christi

strenuissime´ usq; ad necem dimicauit. Fuit autem Berta

ex illustri

prosapia orta, ﬁlia dom’ Theobaldi Valeymz senioris domini de Parham, quorum

& Ranulphi & Bertae

consanguinei multi, de quibus plures milites, omnes vero

gentiles & generosi, istam partem Suff. eorum incolatu & generosa carnis propagine

honoriﬁce` illustrabant annis multis.

And Henr’ de Bracton a Judge of this realm,

44. Vir preclarifﬁmus de nobili sanguine.

45. Vir strenuissimus.

46. Vide Pl. com. f.

47. 368. b. obijt apud Acres.

48. Ad terram sanctam peregrinatus.

49. Effusio sanguinis contra inimicos Christi.

50. Prosapia uxoris Bertae.

51. [Ed.: Ranulph de Glanville, Justiciar of England, was founder of the house of Buttely in county

Suffolk, which was founded in year 17 of the reign of Henry the son of the empress, and in the year of

the Lord 1171, the same year that Thomas Becket the Archbishop of Canterbury was slain. And said Ranulph

was born in the vill of Stratford in county Suffolk and held the manor of Benhall with full dominion, by

gift of the said king Henry. And he took to wife Berta, the daughter of Lord Theobald Valeymz senior,

Lord of Parham, and this Theobald gave by his charter to said Ranulph and Berta his wife all the land of

Brochous, where the home of Butteley is situated, with its appurtenances, along with other lands and

tenements, Said Ranulph sired three daughters from said Berta, namely Matilda, Amabilia and Helewisa,

to whom he gave his land before his pilgrimage to the Holy Land. Matilda, the ﬁrst sister, had as a gift

from her father the whole vill of Benhall along with a claim on the church or monastery of Holy Mary

of Butteley, and she wed a certain knight by the name of Will de Auberville, from whom was born Hugo

of Auberville, from whom was born Will de Auberville, from whom was born a certain Joan, sole daughter

Preface 255

in the raigne of K. Henry the third in his ﬁrst chapter of his ﬁrst Booke Nu-

merotertio saith: I Henry de Bracton have set my mind to serch out diligently

the ancient Judgements of the just, not without much paines and labor &c. So

as he stileth the laws of England by the name of The auncient Judgements of

the Just. The author of the Booke called Fleta (who wrote in the raigne of

king Edward the ﬁrst) in his Preface to his Worke agreeth with Glanvill con-

cerning the Antiquity and honor of the lawes of England, and there sheweth

the reason wherefore he intitled his book by the name of Fleta: But this Treatise

which may worthily be called Fleta, because it was compiled, in the Fleete, of the

Lawes of England. I have a Register of our Writs originall, written in the raigne

of K.H.2. (in whose time Glanvill wrote) containing the originall Writs which

were long before the Conquest, as in the said Preface to the third part ap-

peareth, and yet also remaining in force, such excepted as have been instituted

or altered by Acts of parliame´nt since that time, which is the most ancient

booke yet extant of the Common law, and so ancient, as the beginning whereof

cannot be shewed. To the 2. question I doe afﬁrme, That the Statutes of Magna

Charta, Charta de Foresta, Merton, Marlebridge, Westm’ I. De Bigamis, Gloc’,

Westm’ 2, Articuli super cartas, articuli Cleri, statutum Eboraic, Praerogativa

and heir, who wed a certain knight from Kent by the name of Nicholas Kyryell, who took to wife Margaret

the daughter of Lord Galfridus Peche; and that Nicholas sold to Lord Guido Ferr said manor of Benhall:

and then Nicholas sired from his wife another Lord Nicholas, a knight in Kent, who lived before the ﬁrst

plague. And said Guido entailed said manor in the court of the Lord King at Westminster on the morrow

of the Ascension of the Lord, in the ﬁrst year of the reign of king Edward the son of Edward I, to him

and his wife Eleanor and the heirs proceeding from him. And if Guido himself died without an heir, he

bequeathed the estate to Will de S. Quintinus and his heirs. Amabilia, the second daughter, had as a gift

from her father half of the vill of Bawdesia and half of the vill of Fynbergh. Amabilia had a husband by

the name of Radulph de Ardern, from whom was born Thomas de Ardern his son and heir, and Thomas

in turn sired Radulph his son and heir, who enfeoffed the prior and convent of Butteley with half of the

vill of Bawdesey. Said Radulf sired a certain Thomas Ardern his son and heir. Helewisa, the third sister,

had as a gift from her father half of the said vill of Bawdesey, and also half of the said vill of Fynbergh.

Said Helewisa had a husband by the name of Robert son of Robert, and from him was born Radulph his

son and heir, who enfeoffed Warinus de Insula with said half of the vill of Fynbergh. From Radulph was

born Robert his son and heir, who enfeoffed Ranulph his brother with said half of the vill of Bawdesey.

And note, that said Ranulph de Glanville was a man of very distinguished birth, of noble blood and

enormous strength of body, who at an advanced age made a pilgrimage to the Holy Land, and there battled

vigorously to the death against the enemies of Christ. Moreover, Berta was of an illustrious family, the

daughter of Lord Theobald Valeymz senior, Lord of Parham, and Ranulph and Berta had many kinsmen,

many of whom were knights, and all of whom were gentlemen of noble birth, and they and their illustrious

progeny for many years gave great honor to county Suffolk.]

Part Eight of the Reports256

regis, and some few others, that be auncient, amongst which, the statute of

25. E. 3. is not to be omitted, touching tresons (which for the most part are

but declarations of the Common law) together with the original writs con-

tained in the Register concerning comon pleas, and the exact & true formes

of Inditements & Judgements thereupon in criminall causes, are the very body,

& as it were the very text of the common lawes of England. And our yeare

Bookes and Records yet extant for above these 400. yeares, are but Com-

mentaries and Expositions of those lawes, originall writs, inditements and

judgements. By two cases, the one of Jebu Webbe, & the other called Black-

amores case now among others published & resolved in this blessed & ﬂorishing

spring time of his Majesties Justice, specially (among many others) it ap-

peareth, that our Booke cases and Records are also right Commentaries, and

true Expositions of Statutes and Acts of parliament. And for an example of

an originall writ, among many other, I referre the studious Reader especially

to Calyes case in Pasc’ 26. of the raigne of the late Queene Eliz. of ever blessed

memorie, now published, whereby it more clerely appeareth how iudicious

the opinion of Justice Fitzh. is in his preface to his N.B. where he saith, that

originall writs are the foundations whereupon the Law dependeth, & how

truly he calleth the´ the Principles of the law, & fortiﬁeth also the opinion of

Bracton li. 5. fo. 413. where he faith, that (Breue formatum est ad similitud’

regulae iuris:

) which Case I have reported in that forme to this end, that

Students seeing the singuler use of original writs, wil in the beginning of their

study learn them, or at least the principallest of them without booke, whereby

they shal attaine unto 3.things of no smal moment: 1. to the right under-

standing of their books: 2. to the true sense & judgement of law: & lastly, to

the exquisit forme & maner of pleding. And the Case of Barretry standeth

for an example of an inditement. The neglect of Assises & reall actions hath

produced 2. inconueniences in the Common wealth, & a 3. is (if it be not

stept on already) like to insue: 1. the multitude of suits in personall actions,

wherein the realty of freehold & inheritance is tried, to the intollerable charge

and vexation of the subject: 2. multiplicitie of suits in one and the same Case,

wherein oftentimes there are divers verdits on the one side, and divers on

thother, and yet the pf. or def. can come to no ﬁnite end, nor can hold the

possession in quiet, though it be often tried & adjudged for either party. And

52. [Ed.: A formed writ is like a rule of law.]

Preface 257

this groweth, for that the right institution of the Lawe is not obserued, to the

uniust slander of the common law, & to the intollerable hindrance of the

common wealth. In personall actions concerning debts, goods, & chattels, a

recovery or bar in one action is a bar in another, and there is an end of the

controversie. In reall actions for freehold & inheritance, being of a higher &

worthier nature, & standing upon greater variety of titles & difﬁculties in law,

there could not be above 2. trials, or at the most (& that very rarely) 3. and

in the mean time, after one recovery, the possession resteth quiet. 3. The

discontinuance of real actions will produce in the end 2. dangerous effects,

viz. want of true judgement in the Professors of the Law, & grosse ignorance

in Clerks of the right entries & proceedings in those Cases. We see that workes

of Nature are best preserved from their owne beginnings, frames of Policy are

best strengthned from the same ground they were ﬁrst founded, & justice is

ever best administred when Laws be executed according to their true and

genuine institution. And therefore to the end the ancient & excellent insti-

tution of the Common Law might be recontinued for the good of the common

wealth, (For it is convenient for the commonwealth, that there be an end of con-

troversies.) I have therfore reported 2. Cases of Assises, for that the writ of Assise

(in case where it lieth) is optimum & maxime festinum remedium:

And the

cases of Buckmere & Syms of writs of Formedon in remainder: & Ed. Altuams

case of a writ of Dower. And we, that are Judges of the Realm, have resolved

to cut off al superﬂuous & unjust delaies, & as much as we can, all fained

dilatory & curious pleadings: the admittance whereof, of late time, hath bin

a great cause why reall actions, & specially writs of Assise, have not bin so

frequent as they have been. And though in reall actions, as the weight of the

cause requireth, there are longer times given in the proceeding, then in per-

sonall actions, as appeareth in Justice Fortescues booke ca. 53. (where it ap-

peareth that those times are neither overlong, nor without just cause; For many

times in deliberations judgements grow to ripenes, but in over hastie processe never:)

yet shal the demaundant come to a timely ﬁnall end by these reall actions,

which he shall never do by prosecution of personall actions for the triall of

freehold or inheritance. And they that well observe the three parts of the

Reports in the raigne of king E. 3. shal ﬁnd few or no actions of trespas or

personal actions brought concerning any lands or tenements, but either where

53. [Ed.: the best and most speedy remedy.]

Part Eight of the Reports258

no title of freehold or inheritance came in question, or where the plaintife

could not have any reall action: and therfore amongst many others it appeareth

in an action of trespas Quare clausum fregit

brought by the B. of Coventry

& Lichﬁeld in 6. Ed. 3. fo. 34. b. exception was taken to the replication of the

B. for that he pleaded in the realty, for alwaies in those daies real cases were

determined in real actions, which made the Judges in those times to merit

that honorable testimony which Thirning chiefe Justice attributeth to them

in the 12. yere of the raigne of K. Henry the fourth that they were the greatest

Sages that ever were: & that in the raigne of K. Edward the third the law was

of the greatest perfection that ever it was; & that pleding (the greatest honor

& ornament of the law) grew in the raigne of that king to that excellency, as

that the pleading in former times having regard to the pleadings in the raigne

of king E.3. are holden by Thirning to be but feeble. I have reported the great

case of the duchy of Cornwall for divers causes. 1. Although this very case

hath bin long since (as shal appere in this Report) judicially adjudged, yet

hath the same of late bin called in question againe, partly for that the said

judgements remain privatly amongst the rest of the kings Records, unknown

but to a few, & partly, for that the resons & causes of the judgements being

(according to law) not expressed in the Record it self, gave no ful & cleere

satisfaction: but principally, for that there was no report made & published

of the true causes & resons of those resolutions & judgements. 2. To the end

that such as have not any part therof, may hereby be instructed of the true

state of the possessions of this duchy, & by this means be admonished how

they deale with any that have bought or purchased any of these possessions;

& that such as have acquired or gotten any of them, knowing that the judge-

ment was given in this case, both upon many direct authorities in the point,

& upon plain & demonstrative reason (the 2. main causes of true satisfaction)

may therwith rest satisﬁed. The last, but not the least, is, for that the most

noble & excellent Prince, who is omine nomine numine magnus,

& the greatest

that ever was before him, hath in his ﬁrst Cause in hoc forensi dicendi genere

gotten victorie. I have for some respects reported the same in Latin, wherein

I have been contented potiu`s scribere proprie` quam Latine`;

& for that the

54. [Ed.: [to show] why he broke his close (the writ of trespass).]

55. [Ed.: great by omen, by name, by power.]

56. [Ed.: in this forensic manner of speaking.]

57. [Ed.: to speak rather in my own language than in Latin.]

Preface 259

words of art which wil beare no translation, are herein so many & so frequent,

I have added the report therof in the vulgar language, that the reader may use

either of them at his pleasure. There are certein other cases now published

by me, concerning some of the most abstruse darke & difﬁcult points in the

law, & yet very necessary to be known, as in Arthur Blackamores case con-

cerning Amendments, Beechers case of a Retraxit, departure in despite of the

Court, & of Fines and Amercements, Greisleyes case of affearing of Amerce-

ments, & some others. And I have of purpose done these as plainly and cleerly,

and therewith as brieﬂy as I could. For the lawes are not like to those things

of Nature, which shine much brighter through Cristall or Amber, then if they be

beheld naked: nor like to Pictures that ever delight most when they are gar-

nished & adorned with fresh and livelie colors, and are much set out & graced

by artiﬁcial shadowes. And, whether it be in respect of the matter, or my yeres

growing fast on, being now in the 60. yere of mine age, or for what other

respect soever it be, sure I am I have felt this eighth Work much more painfull

then any of the other have been unto me. And yet hath almighty God of his

great goodnes (amidst my publike imploiments) enabled me hereunto. And

as the Naturalists say, that there is no kinde of bird or fowle of the wood or

of the plaine that doth not bring somewhat to the building & garnishing of

the Eagles nest, some, cinnamon and other things of price, and some, juniper

and such like of lesser value, every one according to their quality, power, and

ability: so ought every man according to his power, place, and capacity to

bring somewhat, not onely to the proﬁt and adorning of our deere Conntrey

(our great Eagles nest) but therein also, as much as such mean instruments

can to expres their inward intention & desire, to honor the peaceable days of

his Majesties happy & blessed government to al posterity. And for that I have

been called to this place of Judicature by his Majesties exceeding grace & favor,

I hold it my duty, having observed many things concerning my profession,

to publish amongst others certaine Cases that have been adjudged and resolved

since his Majesties raigne in his highest Courts of ordinary Justice in this calme

and ﬂorishing spring time of his Majesties justice, amounting with those of

my former edition in al to 84. And (if it shall please God) I intend hereafter

to set out an other Worke, whereof I have onely collected the materials, but

not reduced them to such a forme as I intend, left if I should leave it as it is,

it might, after my death, be published (as hath bin done in the like case) before

it be perfected. Your extraordinary alowance of my former Works, together

with your continuall and earnest desire of other Editions, have much in-

Part Eight of the Reports260

couraged me to undertake these paines: And if you shall reape in your studies

such proﬁt thereby, as I from my heart desire, and as you (from your desire

of knowledge) doe expect, then shall my Labors seeme light unto me, for my

expectation shall be satisﬁed.

Bene` vale.

Vynior’s Case.*

(1609) Trinity Term, 7 James I

First Published in the Reports, volume 8, page 81b.**

Ed.: William Wilde and Robert Vynior had agreed on a bond, by which

Wilde owed Vynior £20 15s, with a variety of accompanying obligations

and under which any disagreement about performance of the terms of the

bond would be decided by William Rugge as arbitrator. Vynior sued Wilde

for breach of his obligations, and Vynior argued that Wilde should rely on

a decision of Rugge’s. In this case, the power to enter into a binding agree-

ment to arbitration is rejected under the view that the power to revoke an

authority in another person to arbitrate was irrevocable. Vynior won.

Robert Vynior brought an action of debt against William Wilde upon an

obligation of 20 1. 15 Julii anno 6 of the same king. The Defendant demanded

Oyer of the Bond and of the Condition endorsed, which was, That if the above

bounden William Wilde do, and shall from time to time, and at all times hereafter,

stand to, abide, observe, perform, fulﬁl, and keep, the rule, order, judgment, ar-

bitrament, sentence, and ﬁnal determination of William Rugge, Esquire, Arbi-

trator indifferently named, elected, and chosen, as well on the part of the said

William Wilde, as on the part of the said Robert Vynior, to rule, order, adjudge,

arbitrate, and ﬁnally, determine all matters, suits, controversies, debates, griefs,

and contentions, hereto moved and stirred, and now depending between the said

parties, touching or concerning the sum of Two and twenty pence heretofore taxed

upon the said William Wilde, for divers kinds of Parish business, within the parish

58. [Ed.: Farewell.]

*The 1658 edition spelled these names “Vinyor” and “Wylde”; the names here have been set as to conform

to later citations.

**See the pleadings at Trinit. 7 Jac. Rot. 2629.

Vynior’s Case 261

of Themilthorpe in the county of Norfolk, so as the said award be made and set

down in writing under the hand and seal of the said William Rugge, at or before

the Feast of St. Michael the Archangel next ensuing, after the date of these presents,

That then, &c. And the Defendant pleaded, That the said Will. Rugge, nullum

fecit arbitrium de et super praemissis, &c.

The Plaintiff replyed, That after the

making of the said Writing obligatory, and before the said Feast of St. Michael,

scil. 22 Aug. Anno 6, supradicto apud Themilthorpe praed’ praedict’ Willihelm’

Wilde per quodd’ script’ suum cujus datus est eisdem die et anno revocavit et |

abrogavit, Anglice, did call back, omnem authoritatem quamcunque quam idem

Willielmus Wilde per praed’ scriptum obligatorium dedisset, et commisisset praefat’

Willielmo Rugge arbitratori suo, et adtunc totaliter deadvocavit, et vacuum tenuit

totum et quicquid dict’ Willielmus Rugge post deliberationem ejusdem scripti sibi

faceret in et circa dict’ arbitrium regulam, &c. unde ex quo praed’ Wil’mus Wilde

post confectionem praed’ scripti, et ante praed’ Festum Sancti Michaelis tunc prox’

sequen’ in forma praed’ exoneravit, et abrogavit arbitratorem praed’ de omni

authoritate arbitrandi de et super praemissis in conditione praed’ superius speciﬁc’

contra formam et effectum conditionis illius, et submissionis in ead’ mention’ idem

Robertus petit judicium, &c.

Upon which the Defendant did demur in law.

And in this case 3. points were resolved.

1. That although William Wilde the Defendant was bound in a Bond to

stand to, abide, observe, the rule, &c. arbitrament, &c. yet he may countermand

the same; for a man cannot by his act make such authority, power, or warrant

not countermandable, which by the Law and of his nature is countermandable;

As if I make a Letter of Attorney to make livery, or to sue an Action in my

name; or if I assign Auditors to take an account; or if I make one my Factor;

or if I submit myself to an Arbitrament; although that these are done by express

1. [Ed.: made no arbitration upon and concerning the foregoing.]

2. [Ed.: namely on the twenty-second day of August in the above-mentioned sixth year, at Themilthorpe

aforesaid, the aforesaid William Wilde by a certain writing of his dated the same day and year revoked

and abrogated—in English ‘did call back’—all the authority whatsoever which the same William Wilde

had, by the aforesaid bond, given and committed to the said William Rugge, his arbitrator, and then wholly

disavowed and held as void all and whatever the said William Rugge [had awarded] for him in and about

the said arbitration, rule, etc., after the delivery of the same writing, wherefore, inasmuch as the aforesaid

William Wilde after the making of the aforesaid writing and before the aforesaid feast of Michaelmas then

next following discharged and abrogated the aforesaid arbitrator in form aforesaid from all authority to

arbitrate upon and concerning the foregoing speciﬁed above in the aforesaid condition, against the form

and effect of that condition and the submission mentioned therein, the same Robert prays judgment, etc.]

[82 a]

Part Eight of the Reports262

words irrevocably, yet they may be revoked: So if I make my Testament and

last Will irrevocably, yet I may revoke it, for my act or my words cannot alter

the judgement of the Law to make that irrevocable, which is of its own nature

revocable. And therefore (where it is said in 5 Edw. 4. 3. b. If I be bounden

to stand to the award which I. S. shall make, I could not discharge that ar-

bitrament, because I am bound to stand to his award, but if it be without

Obligation it is otherwise) it was Resolved, that in the one case or the other

the authority of the Arbitrator may be revoked; but then in the one case I

shall forfeit my bond, and in the other I shall forfeit nothing; for, ex nuda

submissione non oritur actio:

and therewith agreeth Brooke in abridging the

said book of 5 Edw. 4. 3. b. and so the book of 5 Edw. 4. is well explained.

Vide (31 Hen. 6. 30 28, Hen. 6. 6b. 49 Edw. 3. 9a. 18 Edw. 4. 9. 8 Edw. 4.

10.)

2. It was Resolved, That the Plaintiff need not aver, that the said William

Rugge had notice of the said Countermand, for that is implied in these words,

revocavit et abrogavit omnem authoritatem, &c.

for without Notice it is no

revocation or abrogation of the authority: and therefore if there was no Notice,

then the Defendant might take issue, quod | non revocavit, &c.

and if there

was no notice, it shall be found for the Defendant; as if a man plead, quod

feoffavit, dedit,

or demisit pro termino vitae,

the same implieth Livery, for

without Livery, it is no Feoffment, gift, or demise; But there is a difference

when 2 things are requisite to the performance of an act, and both things are

to be done by one and the same party, as in case of Feoffment, gift, demise,

revocation, countermand, &c. And when two things are requisite to be per-

formed by several persons; as of a grant of a Reversion, attornment is not

implied in it, and yet without attornment the grant hath not perfection, but

for as much as the grant is made by one, and the attornment is to be by

another, it is not implied in the pleading of the grant of one; but in the other

case both things are to be done by one and the same party, and that maketh

the difference. And therewith agreeth 21 Hen. 6 30a. where William Bridges

brought an action of debt for 2001 upon an arbitrament against William Bent-

3. [Ed.: no action arises from a void submission [to arbitration].]

4. [Ed.: revoked and abrogated all authority, etc.]

5. [Ed.: that he did not revoke, etc.]

6. [Ed.: that he enfeoffed, gave [demised for life].]

7. [Ed.: [that he enfeoffed, gave] demised for term of life.]

[82 b]

Vynior’s Case 263

ley; the Defendant pleaded, that before any Judgment, or Award made by the

Arbitrators, the said William Bentley discharged the Arbitrators at Coventry,

in the county of Warwick; and the same was holden a good barr and yet he

did not averr any Notice to be given. So it is adjudged in (28 Hen. 6. 6 6

Hen. 7. 10, &c.)

3. It was Resolved, That by this Countermand or revocation of the power

of the Arbitrator, the Obligee shall take beneﬁt of the Obligation and that

for two causes. 1. because he hath broken the words of the Condition, which

are That he should stand to, and abide, &c. the rule, order, &c. and when he

countermands the Authority of the Arbitrator, he doth not stand to and abide,

&c. which words were put in such Conditions, to the intent that there should

be no countermand, but that an end should be made by the Arbitrator of the

Controversie, and that the power of the Arbitrator should continue till he had

made an Award; and when the Award is made, then there are words to compel

the parties to perform it, scil. observe, perform, fulﬁl, and keep the rule, order,

&c. and this form was invented by prudent Antiquity; and it is good to follow

in such cases the ancient forms and precedents, which are full of knowledge

and wisdom; and with this Resolution agreeth the said book of 5 Ed. 4. 3b.

which is to be intended, as above said, ut supra, That the Obligor cannot

discharge the Arbitrament, but that he shall forfeit his bond, and the book

giveth the reason, which is the cause of this Resolution, scilicet,

because I am

bound to stand to his award scil. to stand to his award, which I do not when

I discharge the Arbitrator. The other reason is, because the Obligor by his

own act hath made the Condition of the Obligation (which was endorsed for

the beneﬁt of the Obligor, to save him from the penalty of the Obligation)

impossible | to be performed, and by Consequence his Obligation is become

single, and without the beneﬁt or help of any Condition, because he hath

disabled himself to perform the Condition Vide (21 Edw. 4. 55 per Choke, &

18 Edw. 4. 18b & 20a) If one be bounden in a Obligation, with Condition

that the Obligor shall give leave to the Obligee for the time of 7 years to carry

wood, &c. in that case although he gives him leave, yet if he Countermands

it, or disturbs the Obligee, the obligation is forfeited. And afterwards Judge-

ment was given for the Plaintiff.

8. [Ed.: that is to say.]

[83 a]

Part Eight of the Reports264

Dr. Bonham’s Case.

(1610) Hilary Term, 7 James 1.

In the Court of Common Pleas.

First Published in the Reports, volume 8, page 113 b.

Ed.: This is, perhaps, Coke’s most famous case and most famous report,

although he likely did not see it as startling as it would be thought in later

generations. The College of Physicians held a concession in their charter

under an act of Parliament giving it the sole right to license anyone who

would practice medicine in London. Thomas Bonham was a medical doctor

educated in the University of Cambridge, who began to practice medicine

in London in 1606. He was examined by the College of Physicians, who

refused to qualify him to practice. Bonham continued in practice and the

censors ﬁned him £5 and ordered him to stop. He continued and refused

to obey the College’s orders. The president and censors of the college and

their two servants arrested Bonham. Bonham sued them for false impris-

onment. Coke, sitting in Common Pleas but with the agreement of Flem-

ing, the Chief Justice of the King’s Bench, ruled that the language of the

charter was not designed to give the college the right to imprison for un-

licensed practice in order to beneﬁt the public but to maintain the mo-

nopoly of its members and graduates, that the president did not have the

power to ﬁne, that proceedings of such a body should be recorded in writing

and not done by voice alone, that any ﬁnes they collected belonged to the

King and not to the College, and that the provision of the charter that

allowed imprisonment must be read very strictly in order to prevent the

loss of a subject’s liberty at the pleasure of others. In reaching these con-

clusions, Coke noted that the College cannot be a judge in a case to which

it is a party. He then considered whether the censors were judges, and stated

that in many cases the common law will void acts of Parliament when they

are “against common right and reason, or repugnant, or impossible to be

performed.” This is often thought to be the ﬁrst judicial statement of a

power of judicial review over legislation. As to other invalid restraints from

professions, see Case of the Tailors of Ipswich, p. 390, and for restraints of

trade, see Case of the Monopolies, p. 394.

Dr. Bonham’s Case 265

| Thomas Bonham, Doctor in Philosophy and Physick brought an action

of false imprisonment against Henry Atkins, George Turner, Thomas Mound-

ford, and John Argent, Doctors in Physick, and John Taylor, and William

Bowden Yeomen, For that the Defendants, the 10 of Novemb. anno 4 Jacobi,

did imprison him, and detain him in prison by the space of 7 days. The

Defendants pleaded the Letters Patents of King Henry the 8. bearing date the

23 of Septemb. in the 10 year his reign, by which he reciteth, Quod cum regii

ofﬁcii sui munus arbitrabatur ditionis suae hominum faelicitati omni ratione

consulere, id autem vel imprimis fore si improborum conatibus tempestive oc-

curreret, &c.

By the same Letters Patents the King granted to John Chambre,

Thomas Linacre, Ferdinando de Victoria, John Halswel, John Frances, and Robert

Yaxley, quod ipsi omnesque homines ejusdem facultatis de et in civitat’ London

sint in re et nomine unum corpus et communitas perpetua, per nomen praesidentis

et Collegii, sive communitatis facultatis medicinae London, &c.

And that they

might make meetings and Ordinances, &c. But the case at Bar doth principally

consist upon two Clauses in the Charter. The ﬁrst, Concessimus etiam eisdem

praesidenti et Collegio seu Communitati et successoribus suis, quod nemo in dicta

Civitate, aut per septem milliaria in circuitu ejusdem, exerceat dictam facultatem

Medicinae, nisi ad hoc per dicts praesidents et Communit. seu successores suos,

qui tempore fuerint, admissus sit per ejusdem praesidentis et Collegii Literas sigillo

suo communi sigillat. sub poena centum | solidorum pro quolibet mense quo non

admissus eandem facultatem exercuerit, dimidium inde Domino Regi et haere-

dibus suis, et dimidium dict’ praesidenti et Collegio applicand’, &c.

The second

clause is, which immediately followeth in these words, Praeterea voluit et con-

cessit pro se et successoribus suis, quantum in se fuit, quod per praesident’ Collegium

1. [Ed.: That whereas the function of his royal ofﬁce was considered to have regard, by virtue of his

authority, to the happiness of men of all kinds, but ﬁrst and foremost to oppose opportunely the undertakings

of the wicked, etc.]

2. [Ed.: that they and all men of the same faculty of and in the city of London be in fact and in name

a corporation and perpetual community by the name of the president and college or community of the

faculty of medicine of London, etc.]

3. [Ed.: We also grant to the same president and college or community, and their successors, that no

one within the same city or within seven miles thereof should exercise the said faculty of medicine unless

he has been admitted thereto by the said president and community, or their successors for the time being,

by the letters of the same president and college sealed with their common seal, under pain of one hundred

shillings for every month in which they exercise the same faculty while not admitted, one half thereof to

be paid to the lord king and his heirs and one half to the said president and college, etc.]

[114 a]

[114 b]

Part Eight of the Reports266

praedict’ Communitat’ pro tempore exist’ et eorum successores imperpetuum, qua-

tuor, singulis annis per ipsos eligerent qui haberent supervisum et scrutinium,

correctionem et gubernationem omnium et singulorum dict’ Civitatis Medicorum,

utentium facultat’ medicinae in eadem Civitate, ac aliorum Medicorum forin-

secorum quorumcunque facultatem illam Medicinae, aliquo modo frequentan-

tium et utentium infra eandem Civitatem et suburbia ejusdem, sive infra septem

milliarii in circuitu ejusdem Civitatis, ac punitionem eorundem pro delictis suis

in non bene exequend’ faciend’ et uten’ illa: necnon supervisum et scrutinium

omnium medicinarum, et earum receptionem per dictos Medicos seu aliquem

eorum hujusmodi ligeis dicti nuper Regis pro eorum inﬁrmitatibus curand’ et

sanand’ dand’ imponend’, et utend’ quoties et quando opus fuerit, pro commodo

et utilitat’ eorundem ligeorum dicti nuper Regis: Ita quod punitio eorundem Med-

icorum utentium dicta facultate Medicinae sic in praemiss’ delinquentium per

ﬁnes, amerciamenta et imprisonament’ corporum suorum, et per alias vias ra-

tionabiles et congruas exequeretur, as by the said Charter more fully appeareth.

And that by force of said Letters Patents, The said John Chambre, Thomas Linacre,

&c. and all the men of the same faculty in the said City were unum corpus et

communitas perpet’ sive collegium perpetuum.

And afterwards by Act of Par-

liament An. 14 Hen. 8. It was enacted, That the said corporation, and every

grant, article, and other things in the said Letters Patents contained and spec-

iﬁed, should be approved, granted, ratiﬁed, and conﬁrmed, in tam amplo et

largo modo prout poterit acceptari, cogitari, et construi per easdem Literas Pa-

4. [Ed.: He further willed and granted for himself and his successors, as much as in him was, that every

year four persons should be elected by the president [and] college [or] community aforesaid for the time

being, and their successors for ever, who should have the supervision and scrutiny, correction and governance

of all and singular the physicians [medici] of the said city using the faculty of medicine in the same city,

and of all other foreign physicians [i.e. from outside the city] whatsoever frequenting and using in any

way the faculty of medicine within the same city, and the suburbs thereof, or within seven miles of the

same city, and the punishment of the same for their offences in not well executing, performing and using

the same, and also the supervision and scrutiny of all medicines and of their receipt by the said physicians,

or any of them, to be given to, imposed on and used for the said late king’s lieges for curing and healing

their inﬁrmities as often and whenever the need arises, for the beneﬁt and utility of the same lieges of the

said late king, so that the punishment of the same physicians using the said faculty of medicine who thus

offend in the foregoing respects shall be carried out by ﬁnes, amercements and imprisonment of their

bodies, and by other reasonable and suitable ways, as by the said charter more fully appears. [And that by

force of said letters patent the said John Chambre, Thomas Linacre, etc., and all the men of the same

faculty in the said City, were] one corporation and perpetual community or college for ever.]

Dr. Bonham’s Case 267

tentes.

And further it was enacted, That the said 6 persons named in the said

Letters Patents, as Principal of the said College, and 2 others of the said College,

who should be named Electi,

and that the said Elects should choose one of

them to be President, as by the said Act appeareth: And further they pleaded

the Act of 1 Mariae, by which it is enacted, Quod quaedam concessio per Literas

Patents de incorporatione facta per praedict’ nuper Regem Medicis London. Et

omnes clausulae et articuli content’ in eadem concessione approbarentur, conced-

erentur, ratiﬁcarentur et conﬁrm’ per praedict’ Parl’; in consideratione cujus in-

actitat’ fuit authoritate ejusdem Parliamenti. Quod praed’ statut’ et actum Par-

liamenti in omnibus articulis et clausulis in eodem content’ extunc imposterum

starent et continuarent in pleno robore, &c.

And further it was enact-|-ed, That

whensoever the President of the College, or Commonalty of the faculty of Physick

of London for the time being, or such as the said President and College shall

yearly, according to the tenor and meaning of the said Act, authorize to search,

examine, correct, and punish all offenders and transgressors in the said faculty,

&c. shall send or commit any such offender or offenders for his or their offence or

disobedience, contrary to any article or clause contained in the said grant or Act,

to any ward, gaol, or prison within the same City (the Tower of London except)

that then from time to time the Warden, Gaoler, or keeper, &c. shall receive, &c.

such person so offending, &c. and the same shall keep at his proper charge, without

bail or mainprize, until such time as such offender or disobedient be discharged

of the said imprisonment by the said President, and such persons as shall be there-

unto authorised, upon pain that all and every such Warden, Gaoler, &c. doing

the contrary, shall lose and forfeit the double of such ﬁnes and amerciaments as

such offender and offenders shall be assessed to pay, by such as the said President

and College shall authorise as aforesaid, so that the ﬁne and amerciament be not

at any one time above the sum of 20 l., the one moiety to the King, the other moiety

5. [Ed.: in as ample and large a manner as it may be accepted, intended and construed by the same

letters patent.]

6. [Ed.: chosen, the elected.]

7. [Ed.: That the grant by letters patent of incorporation made by the aforesaid late king to the physicians

of London, and all the clauses and articles contained in the same grant, be approved, granted, ratiﬁed and

conﬁrmed by the aforesaid parliament; in consideration whereof it was enacted by authority of the same

parliament that the aforesaid statute and act of parliament, [and] all the articles and clauses contained in

the same, should thenceforth stand and continue in full force, etc.]

[115 a]

Part Eight of the Reports268

to the President and College, &c. And further pleaded, That the said Thomas

Bonham the 10th of April, within London, against the form of the said Letters

Patents, and the said Acts, exercebat artem Medicinae, non admissus per literas

praed’ praesidentis et Collegii sigillo eorum communi sigillat’ ubi revera praed’

Tho. Bonham fuit minus sufﬁciens ad artem Medicinae exercend’.

By force of

which, the said Thomas Bonham 30 April 1606, was summoned in London

by the Censors or Governours of the College, to appear before the President

and Censors, and Governours of the College aforesaid at the College, &c. the

14th day of April next following, super praemissis examinand’.

At which day

the said Thomas Bonham came before the President and Censors, and was

examined by the Censors de scientia sua in facultate sua in Medicin’ admin-

istrand’. Et quia praed’ Thomas Bonham sic examinatus minus apte et insuf-

ﬁcienter in praed’ arte medicinae respondebat, et inventus fuit super examina-

tionem praed’ per praed’ Praesident’ et Censores minus insufﬁciens et inexpert’ ad

artem Medicinae administrand’ ac pro eo quod praed’ Thomas Bonham mul-

totiens ante tunc examinatus, et interdictus per ipsum praesident’ et Censores, de

causis praed’ ad artem medicinae administrand’ per unum mensem et amplius

post talem interdictionem facultatem illam in Lond’ praed’ sine licentia, &c. ideo

adtunc et ibid’ consideratum fuit per praed. Praesident’ et Censores, quod praed’

Thomas Bonham pro inobedientia et contempt’ suis praed’ amerciaretur to 100s.

in proximis comitiis praed’ praesident’ et Collegii persolvend’ et deinceps abstineret,

&c. quousque inventus fuerit sufﬁciens, &c. sub poena | conjiciendi in Carcerem

si in praemissis delinqueret.

And that the said Thomas Bonham, 30 Octob.

1606, within London did practise Physick, and the same day he was summoned

8. [Ed.: exercised the art of medicine, not being admitted by letters of the aforesaid president and college

sealed with their common seal, whereas in truth the aforesaid Thomas Bonham was insufﬁciently qualiﬁed

to exercise that art.]

9. [Ed.: for examination of the foregoing.]

10. [Ed.: And because the aforesaid Thomas Bonham, being so examined, answered ineptly and in-

sufﬁciently in the aforesaid art of medicine, and was found upon the aforesaid examination by the aforesaid

president and censors to be insufﬁcient and inexpert to practise the art of medicine, and forasmuch as the

aforesaid Thomas Bonham has often previously been examined and banned by the president and censors,

for the causes aforesaid, from practising the art of medicine, he for one month and more after such in-

terdiction [exercised] that faculty in London aforesaid without licence, etc., therefore it was then and there

decided by the aforesaid president and censors that the aforesaid Thomas Bonham should be amerced one

hundred shillings for his aforesaid disobedience and contempt, to be paid at the next meeting of the aforesaid

president and college, and in the meantime to abstain etc. until he should be found sufﬁcient, etc., on

pain of being put in prison if he should offend in the premises.]

[115 b]

Dr. Bonham’s Case 269

by the Censors to appear before the President and them the 22 of Octob. then

next following, at which day Bonham made default. Ideo consideratum fuit

per praed’ Censores,

that for his disobedience and contempt he should be

amerced to 10 l. and that he should be arrested and committed to custody,

And afterwards 7 Novemb. 1606. the said Thomas Bonham at their assembly

came before the President and Censors, and they asked him if he would satisfy

the College for his dis-obedience and contempt, and submit himself to be

examined; and obey the censure of the College, who answered, That he had

practised Physick and would practice Physick within London, asking no leave

of the College, and that he would not submit himself to the President and

Censors; and afﬁrmed, that the President and censors had no authority over

those who were Doctors in the University; For which cause, the said 4 Censors,

scil. Dr. Turner, Dr. Moundforde, Dr. Argent, and Dr. Dun, then being Cen-

sors or Governors, pro offensis et inobedientia praed’ adtunc et ib’ ordinaverunt

et decreverunt, quod praed’ Thomas Bonham in carcerem mandaretur ib’ re-

mansur’ quousque abinde per praesident’ et censores, seu gubernatores Collegii

praed’ pro tempore existen’ deliberaretur,

And there then by their warrant in

writing, under their Common Seal, did commit the Plaintiff to the prison of

the Counter in London, &c. without bail or mainprise, at the costs and charges

of the said Thomas Bonham, until the said Thomas Bonham by the warrant of

the President and Censors of the said college, or their Successors, was delivered.

And Dr. Atkins then President, and the Censors, and Bowden and Taylor as

their servants, and by the commandment of the said President and Censors,

did carry the Plaintiff with the warrant, to the Gaol, &c. which is the same

imprisonment. The Plaintiff replied and said, That by the said Act of 14 H.

8. it was further enacted, And where that in the Dioces of England, out of

London, it is not like to ﬁnd always men able sufﬁciently to examine (after the

Statute) such as shall be admitted to exercise Physick in them, that it may be

enacted in this present Parliament, That no person from henceforth be suffered to

exercise or practise Physick through England, until such time that he be examined

at London by the said President and 3 of the said Elects, and to have from them

11. [Ed.: Therefore it was decided by the aforesaid censors,]

12. [Ed.: for the aforesaid offences and disobedience then and there ordained and decreed that the

aforesaid Thomas Bonham be sent to prison, there to remain until he should be delivered from thence by

the president and censors, or governors, for the time being, of the aforesaid college.]

Part Eight of the Reports270

Letters Testimonial of their approving and examination, Except he be a graduate

of Oxford or Cambridge, which have accomplished all things for his form with-

out grace: And that the Plaintiff, in the year of our Lord 1595. was a Graduate,

scil. a Doctor in the University of Cambridge, and had accomplished all things

concerning his degree for his form without grace, by force whereof he had

exercised and practised Physick within the City of London until the Defendants

had imprisoned him, &c. upon which the Defendant did demurr in Law. And

this case was often | argued by the Serjeants at Bar in diverse several Terms;

And now this Term, the case was argued by the Justices, and the effect of their

arguments who argued against the Plaintiff (which was divided into three parts)

shall be ﬁrst reported. The ﬁrst was, Whether a Doctor of Physick of the one

University or the other, be by the Letters Patents, and by the body of the Act

of 14 H. 8. restrained to practice Physick within the City of London, &c. The

second was, If the Exception in the said Act of 14 H. 8 hath excepted him or

not. The third was, That his imprisonment was lawful for his said dis-obe-

dience. And as to the ﬁrst, they did relie upon the Letter of the grant, ratiﬁed

by the said Act of 14 H. 8. which is in the negative, scil. Nemo in dicta civitate,

&c. exerceat dictam facultatem nisi ad hoc per praedict’ praesidentem et com-

munitatem, &c. admissus sit, &c.

And this proposition is a general negative,

and Generale dictum est generaliter intelligendum;

and nemo

excludeth all;

and therefore a Doctor of the one University or the other, is prohibited within

this negative word Nemo. And many cases were put, where negative Statutes

shall be taken stricte et exclusive,

which I do not think necessary to be recited.

Also they said, that the Statute of 3 H. 8 cap. 11. which in effect is repealed

by this Act of 14 H. 8. hath a special proviso for the Universities of Cambridge

and Oxford, which being here left out, doth declare the intention of the makers

of the Act, that they did intend to include them within this general prohibition,

Nemo in dicta Civitate, &c.

As to the two points they strongly held, that the

said latter clause, And where that in the Dioceses of England out of London,

&c. this clause according to the words doth extend only to places out of London

13. [Ed.: Namely, no one in the said city, etc. should exercise the same faculty unless thereto admitted,

etc. by the aforesaid president and community, etc.]

14. [Ed.: a general statement shall be understood generally.]

15. [Ed.: no one.]

16. [Ed.: strictly and exclusively.]

17. [Ed.: No one in the said city, etc.]

[116 a]

Dr. Bonham’s Case 271

and so much the rather, because they purview for London before, Nemo in

dicta Civitate, &c. Also the makers of the Act put a distinction betwixt those

who shall be licensed to practise Physick in London, &c. for they ought to

have the admittance and allowance of the President and College in writing,

under their Common Seal; but he who shall be allowed to practise Physick

throughout England out of London ought to be examined and admitted by

the President and 3 of the Elects; and so they said, that it was lately adjudged

in the Kings Bench, in an Information exhibited against the said Doctor Bon-

ham for practising of Physick in London for divers Months. As to the third

point they said, That for his contempt and dis-obedience before them in their

College, they might commit him to prison, for they have authority by the

Letters Patents and Act of Parliament, And therefore for his contempt and

misdemeanor before them they may commit him. Also the Act of—1 Mariae

has given them power to commit them for every offence or dis-obedience

contrary to any article or clause contained in the said grant or act, But there

is an express Negative Article in the said grant, and ratiﬁed by the Act of 14

H.8|Quod Nemo in dicta Civitate, &c. exerceat, &c.

And the Defendants

have pleaded, that the Plaintiff hath practised Physick in London by the space

of one moneth, &c. And therefore the Act of 1 Mariae hath authorised them

to imprison him in this case; for which cause they did conclude for the De-

fendants against the Plaintif. But it was argued by Coke Chief Justice, War-

burton and Daniel Justices at the Common Pleas, to the contrary. And Daniel

conceived, That a Doctor of Physick of the one University or the other, &c.

was not within the body of the Act, and if he was within the body of the Act,

that he was excepted by the said latter clause: but Warburton argued against

him for both the points: and the Chief Justice did not speak to those points,

because he and Warburton and Daniel did agree, that this action was clearly

maintainable for 2 other points. But to the 2 other points he and the said 2

other Justices, (Warburton) and (Daniel) did speak, Scil. 1. Whether the cen-

sors have power for the Causes alleged in their barr, to ﬁne and imprison the

Plaintif. 2. Admitting that they have power to doe it, if they had pursued their

power. But the Chief Justice before he argued the points in Law, because that

much was said in the Commendations of the Doctors of Physick of the said

College within London and somewhat (as he conceived,) in derogation of the

18. [Ed.: That no one in the said city, etc. should exercise, etc.]

[116 b]

Part Eight of the Reports272

Dignity of the Doctors of the Universities, he ﬁrst attributed much to the

Doctors of the said College within London, and did confess that nothing was

spoken, which was not due to their merits; but yet that no Comparison was

to be made, between that private College, and any of the Universities of Cam-

bridge and Oxford no more than between the Father and his Children, or

between the Fountain and the small Rivers which descend from thence: The

University is Alma mater,

from whose breasts those of that private College

have sucked all their science and knowledge (which I acknowledge to be great

and profound) but the Law saith, Erubescit lex ﬁlios castigare parentes:

the

University is the fountain, and that and the like private Colleges are tanquam

rivuli,

which ﬂow from the Fountain, et melius est petere fontes quam sectari

rivulos.

Brieﬂy, Academiae Cantabrigiae et Oxoniae sunt Athenae nostrae no-

bilissimae regni soles, oculi et animae regni, unde Religio, humanitas, et doctrina

in omnes regni partes uberrime´ diffunduntur:

but it is true, nunquam sufﬁciet

copia laudatoris, quia nunquam deﬁciet materia laudis;

& therefore, these

Universities exceed and excell all private Colleges, quantum inter viburna cu-

pressus.

And it was observed in the said Letters Patents, and the King, and

the Parliament in the Act of 14 H. 8. in making of a Law concerning Physicians,

for the more safety and health of men therein, followeth the order of a good

Physician (Rex enim omn’ artes censetur habere in scrinio pect’sui

) for, Medicina

| est duplex, removens, et promovens; removens morbum, et promovens ad salu-

tem;

And, therefore, 5. manner of persons (who more hurt the body of men

than the disease itself

) are to be removed:—1. improbi.

2. avari, qui med-

19. [Ed.: Literally, “nursing mother,” usually thought of in the sense of a foster mother.]

20. [Ed.: The law blushes when children chastise [their] parents:]

21. [Ed.: like streams.]

22. [Ed.: it is better to seek out the sources than to follow the streams.]

23. [Ed.: The universities of Oxford and Cambridge alone are the noblest Athens of the kingdom, the

eyes and minds of the realm, whence religion, humanity and learning are best diffused into all parts of

the kingdom.]

24. [Ed.: there can never be enough praise, because there never wants matter to praise.]

25. [Ed.: like a cypress among the bushes.]

26. [Ed.: (For the king is reckoned to have all the arts encased in his breast)]

27. [Ed.: physic is of two kinds, remotive and restorative: that is, removing illness, and restoring to

health.]

28. [Ed.: The 1658 edition omits here this line: one of which said of one of their patients, “ﬂeeing from

the disease, he meets a physician.”]

29. [Ed.: bad.]

[117 a]

Dr. Bonham’s Case 273

icinam magis avaritiae suae causa quam ullius bonae conscientiae ﬁducia prof-

itentur.

3. malitiosi.

4. temerarii.

5. inscii.

and of the other part, 5. manner

of persons were to be promoted, as appeareth by the said Act, scil. those who

were, 1., profound, 2. sad, 3. discreet, 4. groundedly learned, 5. profoundly studied.

And it was well ordained, That the Professors of Physick should be profound,

sad, discreet, &c. and not youths, who have no gravity and experience; for as

one saith, In juvene Theologo conscientiae detrimentum, in juvene legista bursae

detrimentum, in juvene medico caemiterii incrementum.

And it ought to be

presumed, every Doctor of any of the Universities to be within the Statutes,

scil. to be profound, sad, discreet, groundedly learned, and profoundly studied,

for none can there be Master of Arts (who is a Doctor of Philosophie) under

the study of 7. years, and cannot be Doctor in Physick under 7. years more

in the study of Physick: and that is the cause that the Plaintiff is named in

the Declaration, Doctor of Philosophy, and Doctor of Physick, quia oportet

Medicum esse Philosophum, ubi enim Philosophus desinit, incipit Medicus.

to the 2. points upon which the Chief Justice, Warburton and Daniel, gave

judgment. 1. It was Resolved by them, That the said censors had not the power

to commit the Plaintif for any of the Causes mentioned in the barr, and the

cause and reason thereof shortly was, That the said clause, which giveth power

to the said Censors to ﬁne and imprison, doth not extend to the said Clause,

scil. Quod nemo in dicta Civitate, &c. exerceat dictam facultatem, &c.

which

prohibiteth every one to practise Physick in London, &c. without licence of

the President and College; but extendeth only to punish those who practise

Physick within London, pro delicitis suis in non bene exequendo, faciendo et

utendo facultate Medicinae,

by ﬁne and imprisonment: So that the Censors

have not power by the Letters Patents, and the Act to ﬁne or imprison any

for practising Physick within London, but only pro delictis suis in non bene

30. [Ed.: greedy, who profess physic more by reason of avarice than any reliance on good conscience.]

31. [Ed.: malicious.]

32. [Ed.: timorous.]

33. [Ed.: ignorant.]

34. [Ed.: In a young theologian there is loss of conscience, in a young lawyer loss of money, in a young

physician a ﬁlling of the cemetery.]

35. [Ed.: because it behoves a physician to be a philosopher, but where the philosopher leaves off the

physician begins.]

36. [Ed.: Namely, that no one in the said city, etc., should exercise the said faculty, etc.]

37. [Ed.: for their offences in not well executing, exercising and using the faculty of medicine.]

Part Eight of the Reports274

exequendo, &c.

scil. for ill and not good use and practise of Physick. And

that was made manifest by 5. reasons, called vividae rationes,

because they

had their vigour and life from the Letters Patents and the Act itself. And the

best Expositor of all Letters Patents, and Acts of Parliament, are the Letters

Patents and the Acts of Parliament themselves, by construction, and conferring

all the parts | together, Optima Statuti interpretatrix est (omnibus particulis

ejusdem inspectis) ipsum Statutum;

And In ustum est nisi tota lege inspecta una

aliqua ejus particula proposita judicare vel respondere.

The ﬁrst reason was,

that these two were two absolute, perfect, and distinct Clauses, and as parallels,

and therefore the one did not extend to the other; for the second beginneth,

Praeterea voluit et concessit, &c.

and the branch concerning ﬁne and im-

prisonment, is parcel of the second clause. 2. The ﬁrst Clause prohibiting the

practicing of Physick, &c. doth comprehend 4. certainties;—1. certainty of

the thing prohibited, scil. practice of Physick. 2. Certainty of the time, scil.

practice for one moneth. 3. Certainty of penalty, scil. 5 l. 4. Certainty in dis-

tribution, scil. one moyety to the King, and the other moyety to the College;

and this penalty he who practiseth Physick in London doth incurr, although

he practices and uses Physick well, and proﬁtably for the body of man; and

upon this branch the Information was exhibited in the Kings Bench. But the

clause to punish delicta in non bene exequendo, &c. upon which branch the

case at barr stands, is altogether incertain, for the hurt which may come thereby

may be little or great, leve vel grave,

excessive or small, &c. And therefore

the King and the makers of the Act, cannot, for so uncertain offence impose

a certainty of the ﬁne, or time of imprisonment, but leave it to the Censors

to punish such offences, secundum quantitatem delicti, which is included in

these words, per ﬁnes, amerciamenta, imprisonamenta corporum suorum, et per

alias vias rationabiles et congruas;

2. The harm which accrueth by non bene

38. [Ed.: for their offences in not well executing, etc.]

39. [Ed.: vivid reasons.]

40. [Ed.: The best interpreter of a statute, once all the points thereof have been looked into, is the

statute itself.]

41. [Ed.: Unless the whole of the law has been looked into, it is unjust to adjudge or answer in any

one point that has been propounded.]

42. [Ed.: He moreover wills and grants, etc.]

43. [Ed.: light or serious.]

44. [Ed.: according to the seriousness of the offence...byﬁnes, amercements, imprisonment of their

bodies, and by other reasonable and suitable ways.]

[117 b]

Dr. Bonham’s Case 275

exequendo, &c.

doth concern the body of man; and, therefore, it is reasonable

that the offender should be punished in his body, scil. by imprisonment; but

he who practiceth Physick in London in a good manner, although he doth it

without leave, yet it is not any prejudice to the body of man. [3. He who

practises physic in London doth not offend the statute by his practice, unless

he practises it by the space of a month.]

But the clause of non bene exequendo,

&c. doth not prescribe any time certain, but at what time soever he ministereth

Physick non bene, &c. he shall be punished by the said 2. branch: And the

Law hath great reason in making this distinction, for divers Nobles, Gentle-

men, and others come upon divers occasions to London, and when they are

here they become subject to diseases, and thereupon they send for their Phy-

sicians in the Country, who know their bodies and the cause of their diseases;

now it was never the meaning of the Act to barr any one of his own Physician;

and when he is here he may practise and minister Physick to another by 2.

or 3. weeks, &c. without any forfeiture; for any one who practiseth Physick

well in London (although he has not taken | any degree in any of the Uni-

versities) shall forfeit nothing, if not that he practise it by the space of a month;

and that was the cause, that the time of a month was put in the Act. 4. The

Censors, cannot be Judges, Ministers, and parties; Judges, to give sentence or

judgment; Ministers to make summons; and Parties, to have the moyety of

the forfeiture, quia aliquis non debet esse Judex in propria causa, imo iniquum

est aliquem sui rei esse judicem:

and one cannot be Judge and Attorney for

any of the parties, Dyer 3 E. 6. 65. 38 E. 3. 15. 8 H. 6. 19b. 20a. 21 E. 4. 47a.

&c. And it appeareth in our Books, that in many Cases, the Common Law

doth controll Acts of Parliament, and somtimes shall adjudge them to be void:

for when an Act of Parliament is against Common right and reason, or re-

pugnant, or impossible to be performed, the Common Law will controll it,

and adjudge such Act to be void; and, therefore, in 8 E. 3. 30 a, b. Thomas

Tregor’s Case upon the Statute of West 2. Cap 38. and Artic’ Super Chartas, cap

9. Herle saith, Some Statutes are made against Common Law and right, which

45. [Ed.: not well executing, performing [medicine], etc.]

46. [Ed.: The clause here bracketted was omitted from the 1658 edition.]

47. [Ed.: not well executing, etc.]

48. [Ed.: because no one ought to be a judge in his own cause, it is wrong for anyone to be the judge

of his own property.]

[118 a]

Part Eight of the Reports276

those who made them, would not put them in execution: The Statute of West

2. Cap. 21. giveth a Writ of Cessavit haeredi petenti super haeredem tenent’ et

super eos quibus alienatum fuerit hujusmodi tenementum:

and yet it is adjudged

in 33 Edw. 3 Cessavit

42. where the Case was, Two Coparceners Lords and

Tenant by Fealty and certain Rent, one Coparcener had issue and dyeth; the

Aunt and the Niece shall not join in a Cessavit, because the heir—shall not

have a Cessavit for the cesser in the time of his ancestor. F. N. B. 209. F. and

therewith agreeth Plow. Com. 110a.; and the reason is, because in a Cessavit

the Tenant before Judgment may render the arrearages and damages, and hold

his Land again, and that he cannot doe when the heir bringeth a Cessavit for

the cesser in the time of his auncestor, for the arrearages incurred in the life

of the auncestor do not belong to the heir: and because it shall be against

right and reason, the Common Law shall adjudge the said Act of Parliament

as to that point void. The Statute of Carlisle, made anno 35 E. 1. enacteth,

That the Order of the Cistercians, and Augustines who have a Covent and

Common Seal, that the Common Seal shall be in the keeping of the Prior,

who is under the Abbot, and 4. others of the most grave of the house; and

that any deed sealed with the Common Seal, which is not so in keeping, shall

be void: and the opinion of the Court (Anno 27 H. 6 Annuity 41.) was, that

this Statute was void, for it is impertinent to be observed, for the Seal being

in their keeping, the Abbot cannot seal any thing with it, and when it is in

the Abbots hands, it is out of their keeping ipso facto;

and if the Statute

should be observed, every Common Seal shall be defeated upon a simple

surmise, which cannot be tryed. Note Reader the words | of the said Statute

of Carlisle, which was made 35 E. 1. which is called Statutum Religiosorum are,

Et insuper ordinavit Dominus Rex et statuit, quod Abbates Cisterc’ et Praemon-

straten’ ordin’ religiosorum, &c. de caetero habeant sigillum Commune, et illud

in Custodia Prioris Monasterii seu domus, et quatuor de dignioribus et discre-

tioribus ejusdem loci conventus sub privato sigillo Abbatis ipsius loci custod’ depo’,

&c. Et si forsan aliqua scripta obligationum, donationum, emptionum, vendi-

tionum, alienationum, seu aliorum quorumcunque, contractuum alio sigillo quam

49. [Ed.: “To the heir of the plaintiff against the heir of the tenant, and against those to whom such

a tenement should be alienated,” opening words of the writ of cessavit.]

50. [Ed.: Writ by a fee-holder to recover lands from a tenant who owed rents or services that had been

withheld for two years or more; a form of eviction.]

51. [Ed.: by that fact.]

[118 b]

Dr. Bonham’s Case 277

tali sigillo communi sicut praemittit’ custodit’ inveniant’ a modo sigillat’, pro nullo

penitus habeantur omnique careant ﬁrmitate.

So the Statute of 1 E. 6. c. 14.

giveth Chauntries, &c. to the King, saving to the Donor, &c. all such rents,

services, &c. and the Common Law doth controll it, and adjudges the same

void as to services, and the Donor shall have the Rent, as a Rentseck, dis-

trainable of Common right, for it should be against common right and reason

that the King should hold of any, or do service to any of his subjects, 14 Eliz.

Dyer 313. and so it was adjudged Mich. 16 & 17 Eliz. in Common Pleas in

Strowd’s case. So if any Act of Parliament giveth to any to hold, or to have

Conusans of Pleas of all manner of pleas arising before him within his Mannor

of D., yet he shall hold no plea, to which he himself is party; for, as hath been

said, iniquum est aliquem suae rei esse judicem.

5. If he should forfeit 5 l. for

one month by the ﬁrst clause, and shall be punished for practising at any time

by the second clause, two absurdities would follow, 1. that one should be

punished not only twice but many times for one and the same offence. And

the Divine saith, Quod Deus non agit bis in idipsum;

and the Law saith, Nemo

debet bis puniri pro uno delicto.

2. It should be absurd, by the ﬁrst clause to

punish practising for a moneth, and not for lesser time, and by the 2. to punish

practising not only for a day, but at any time, so he shall be punished by the

ﬁrst branch for one moneth by the forfeiture of 5 l. and by the 2. by ﬁne and

imprisonment, without limitation for every time of the moneth in which

anyone doth practise Physick. And all these reasons were proved by two

grounds, or Maxims of Law; 1. Generalis Clausula non porrigitur ad ea quae

specialiter sunt comprehensa:

And the Case between Carter and Ringstead,

Hil. 34 Eliz. Rot. 120. in Common Pleas, was cited to this purpose, where the

case in effect was, That A. seised of the Mannor of Staple, in Odiham, in the

52. [Ed.: And moreover the lord King has ordained and laid down that abbots of the Cistercian and

Premonstratensian orders [and other] religious orders etc. from henceforth should have a common seal,

in the custody of the prior of the monastery or house and four of the more worthy and discerning men

of the convent of the same place, to be laid up in safe keeping under the private seal of the abbot of the

same place etc. And if it should happen that any writings of bonds, donations, purchases, sales, alienations,

or any other contracts, be hereafter sealed with any other seal than such common seal kept as aforementioned,

they are to be deemed void and to lack all force.]

53. [Ed.: it is wrong to be a judge of one’s own property.]

54. [Ed.: God does not proceed twice against the same person.]

55. [Ed.: No one ought to be punished twice for one offence.]

56. [Ed.: A general clause is not to be extended to something which is specially mentioned.]

Part Eight of the Reports278

county of Southampton in Fee, and also of other Lands in Odiham aforesaid

in Fee, suffered a Common Recovery of all, and declared the use by Indenture,

That the Recoverer should stand seised of all the Lands and Tenements in

Odiham to the use of A. and his wife, and to the heirs of his body begotten;

and further, that the Recoveror | should stand seised to the use of him, and

to the heirs of his body, and died, and the wife survived, and entered into the

said Mannor by force of the said general words. But it was adjudged, That

they did not extend to the said Mannor which was specially named: and if it

be so in a deed, a fortiori,

it shall be so in an Act of Parliament, which (as

a Will) is to be expounded according to the intention of the makers. 2. Verba

posteriora propter certitudinem addita ad priora quae certitudine indigent sunt

referenda.

6 E 3. 12 a, b. Sir Adam de Clydrow, Knight, brought a praecipe

quod reddat

against John de Clydrow; and the Writ was, Quod juste, &c.

reddat Manerium de Wicombe et duas carucatus terrae cum pertinentiis in Cly-

drow,

in that case the Town of Clydrow shall not relate to the Mannor, quia

non indiget,

for a Mannor may be demanded without mentioning that it

lyeth in any town; but cum pertinentiis,

although it cometh after the Town,

shall relate to the Mannor, quia indiget. Vide 3 E. 4. 10. the like case. But it

was Objected, That where by the second Clause it was granted, that the Cen-

sors should have supervisum et scrutinium, correctionem et gubernationem om-

nium et singulorum Medicorum, &c.

they had power to ﬁne and imprison.

To that it was Answered, 1. That the same is but part of the sentence, for by

the entire sentence it appeareth in what manner they shall have power to

punish, for the words are, ac punitionem eorum pro delictis suis in non bene

exequendo, faciendo, vel utendo illa facultate:

so that without Question all

their power to correct and punish the Physicians by this clause is only limited

57. [Ed.: so much the more so.]

58. [Ed.: Subsequent words, added for the purpose of certainty, are to be referred back to the previous

words which lack certainty.]

59. [Ed.: Writ commanding the defendant to act or show cause why he had not acted; a predecessor

to the injunction.]

60. [Ed.: that rightfully, etc. he render the manor of Wicomb and two carucates of land with the

appurtenances in Clydrow. (A carucate is approximately 100 acres.)]

61. [Ed.: because [this inference] is not needed.]

62. [Ed.: with the appurtenances.]

63. [Ed.: supervision and scrutiny, correction and governance of all and singular the physicians, etc.]

64. [Ed.: and their punishment for their offences in not well executing, exercising, or using that faculty.]

[119 a]

Dr. Bonham’s Case 279

to these 3. cases, scil. in non bene exequendo, faciendo, vel utendo, &c.

Also

this word punitionem, is limited and restrained by these words, Ita quod punitio

eorundem Medicorum, &c. sic in praemissis delinquentium, &c.

which words,

sic in praemissis delinquentium, limit the ﬁrst words in the ﬁrst part of this

sentence, ac punitionem eorum pro delictis suis in non bene exequendo, &c.

It shall be absurd, That in one and the same sentence the makers of the Act

shall give them a general power to punish without limitation; and a special

manner how they shall punish, in one and the same sentence. 3. Hil. 38 Eliz.

in a Quo warranto

against the Mayor and Commonalty of London, it was

holden, that where a grant is made to the Mayor and Commonalty, that the

Mayor for the time being should have plenum et integrum scrutinium, gub-

ernationem, et correctionem omnium et singulorum Mysteriorum, &c.

without

granting them any Court, in which should be legal proceedings, that the same

is good for search, by which discovery may be made of offences and defects,

which may be punished by the Law in any Court; but it doth not give, nor

can give them any irregular or absolute power to correct or punish any of the

| Subjects of the kingdom at their pleasures. 2. It was Objected, That it is

incident to every Court created by Letters Patents, or Act of Parliament, and

other Courts of Record, to punish any misdemeanors done in Court, in dis-

turbance or contempt of the Court, by imprisonment. To which it was an-

swered, That neither the Letters Patents nor the Act of Parliament hath granted

them any Court, but only an authority, which they ought to pursue, as it shall

be afterwards said. 2. If any Court had been granted them, they could not by

any incident authority implicite`

granted unto them for any misdemeanor

done in Court, commit him to prison without bayl or mainprise, until he

shall be by the commandment of the President and Censors, or their Suc-

cessors, delivered, as the Censors have done in this case. 3. There was not any

such misdemeanor for which any Court might imprison him, for he only

shewed his case to them, to which he was advised by his Counsel, he may

justiﬁe, which is not any offence worthy of Imprisonment.

65. [Ed.: in not well executing, exercising or using, etc.]

66. [Ed.: so that the punishment of the same physicians, etc., thus offending in the premises, etc.]

67. [Ed.: and their punishment for their offences in not well executing, etc.]

68. [Ed.: Writ against one who exceeds or usurps a prerogative granted by the crown.]

69. [Ed.: the full and entire scrutiny, governance and correction of and singular the crafts, etc.]

70. [Ed.: implicitly.]

[119 b]

Part Eight of the Reports280

The Second point. Admitting that the Censors had power by the Act, if they

had pursued their Authority, or not? And it was Resolved by the Chief Justice,

Warburton and Daniel, that they have not pursued it for 6. causes. 1. By the

Act the Censors only have power to impose a ﬁne, or amercement; and the

President and Censors imposed the amercement of 5 l. upon the Plaintif. 2.

The Plaintiff was summoned to appear before the President and Censors,

&c. and did not appear and therefore he was ﬁned 10 l. whereas the President

hath not any authority in that case. 3. The ﬁnes or amercements to be imposed

by them by force of the Act, do not belong to them, but to the King, for the

King hath not granted the ﬁnes or amercements to them, and yet the ﬁne is

appointed to be paid to them in proximis Comitiis,

and they have imprisoned

the Plaintif for nonpayment thereof. 4. They ought to have committed the

Plaintif presently by construction of Law, although that no time be limited

in the Act, as in the Statute of West 2. cap. 12. De Servientibus, Ballivis, &c.

qui ad compotum reddend’ tenentur, &c. cum Dom’ hujusmodi servientium de-

derit eis auditores compoti, et contingat ipsos in arrearagiis super compotum suum

omnibus allocatis et allocandis, arrestentur corpora eorum, et per testimonium

auditorum ejusdem compoti mittantur et liberentur proximae gaolae Domini Regis

in partibus illis, etc.

in that case, although no time be limited when the

Accomptant shall be imprisoned, yet it ought to be done presently, as it is

holden in 27 H. 6. 8 a. and the reason thereof is given in Fogassaes case, Plowd.

Com. 17 b. that the generality of the time shall be restrained to the present

time, for the beneﬁt of him upon whom the pain shall be inﬂicted, and there-

with agreeth Plow. Com. 206 b. in Stradling’s | case. And a Justice of Peace

upon view of the force, ought to commit the offender presently. 5. For as much

as the Censors had their authority by the Letters Patents and Act of Parliament,

which are high matters of Record, their proceedings ought not to be by word,

and so much the rather, because they claimed authority to ﬁne and imprison.

And therefore if judgment be given against one in the Common Pleas in a

Writ of Recaption, he shall be ﬁned and imprisoned; but if the Writ be Vi-

71. [Ed.: at the next meeting.]

72. [Ed.: Concerning servants, bailiffs, etc., who are bound to render an account, etc., when the lords

of such servants appoint auditors of their account, and they happen to be in arrears upon the account,

everything being allowed which ought to be allowed, their bodies are to be arrested and, by the evidence

of the auditors of the same account, sent and delivered to the next gaol of the lord king in those parts,

etc.]

[120 a]

Dr. Bonham’s Case 281

contiel

in the Countie, there he shall not be ﬁned or imprisoned, because

that the Court is not of Record, F. N. B. in bre Recaption. so in F. N. B. 47

a. a plea of Trespasse vi et armis

doth not lie in the County Court, Hundred

Court, &c. for they cannot make Record of ﬁne and imprisonment; and regular

those who cannot make a Record, cannot ﬁne and imprison. And therewith

agreeth 27 H. 6. 8. Book of Entries: The auditors make a Record when they

commit the Defendant to prison; A Justice of peace upon view of the force

may commit, but he ought to make a record of it. 6. Because the Act of 14

H. 8. hath given power to imprison until he shall be delivered by the President

and the Censors, or their Successors, reason requireth that same be taken

strictly for the liberty of the Subject (as they pretend) is at their pleasure: And

the same is proved by a Judgment in Parliament in this Case; For when this

Act of 14 H. 8. had given power to the Censors to imprison, yet it was taken

so literally, That the Gaoler was not bound to receive them which they com-

mitted to him, and the reason thereof was because they had authority to do

it without any Court: And thereupon the Statute of 1 Ma. cap. 9. was made,

that the Gaoler should receive them upon a pain, and none can be committed

to any prison, if the Gaoler cannot receive him: but the ﬁrst Act, for the cause

aforesaid was taken so literally, that no necessary incident was implyed. And

where it was objected, that this very Act of 1 Mariae c. 9. hath enlarged the

power of the Censors, and upon the word of the Act; It was clearly resolved,

that the said Act of 1 Mariae did not enlarge the power of the Censors to ﬁne

or imprison any person for any cause for which he ought not to be ﬁned or

imprisoned by the said Act of 14 H. 8. For the words of the Act of Queen

Marie are according to the tenor and meaning of the said Act: Also shall send

or commit any offender or offenders for his or their offence or dis-obedience,

contrary to any article or clause contained in the said grant or Act, to any

Ward, Gaol, &c. But in this case Bonham hath not done any thing which

appeareth within this Record, contrary to any article or clause contained within

the Grant or Act of 14 H. 8. Also the Gaoler who refuseth shall forfeit the

double value of | the ﬁnes and amerciaments that any offender or dis-obedient

shall be assessed to pay; which proveth that none shall be received by any

Gaoler by force of the Act of 14 H. 8. but he who may be lawfully ﬁned or

73. [Ed.: Writ triable in the court of the sheriff, the old county court.]

74. [Ed.: with force and arms.]

[120 b]

Part Eight of the Reports282

amerced by the Act of 14 H. 8. and for that was not Bonham, as by the reasons

and causes aforesaid it appeareth. And admit that the Replication be not ma-

terial, and the Defendants have demurred upon it; yet forasmuch as the De-

fendants have confessed in the Bar, that they have imprisoned the Plaintif

without cause, the Plaintif shall have Judgement: And the difference is, when

the Plaintif doth reply, and by his replication it appeareth that he hath no

cause of action, there he shall never have Judgement: But when the Bar is

insufﬁcient in matter, or amounteth (as this case is) to a confession of the

point of the action, and the Plaintif replieth, and sheweth the truth of the

matter to enforce his case, and in judgment of Law it is not material; yet the

Plaintiff shall have Judgement; for it is true that sometimes the Count shall

be made good by the Bar, and sometimes the Bar by the Replication, and

sometimes the Replication by the Rejoynder, &c. But the difference is when

the Count wanteth time, place, or other circumstance, it may be made good

by the Bar, so of the Bar, Replication, &c. as appeareth in 18 E. 4 16b. But

when the Count wanteth substance, no Bar can make it good, so of the Bar,

Replication, &c. and therewith agree 6 Edw. 4. 2. a good case, and mark there

the words of Choke

Vide 18 Edw. 3. 34 b. 44 Edw. 3. 7 a. 12 Edw. 4. 6. 6 Hen.

7. 10. 7 Hen. 7. 3. 11 Hen. 4. 24. &c. But when Plaintiff makes Replication,

sur-rejoinder, &c. and thereby it appeareth, that upon the whole matter and

Record the Plaintif hath no cause of action, he shall never have judgement,

although the Bar or Remainder be insufﬁcient in matter, for the Court ought

to judge upon the whole Record, and every one shall be intended to make

the best of his own case. Vide Rigeway’s case, in the 3 part of my Reports 52

b. And so these differences were resolved and adjudged between Kendall and

Helyer, Mich. 25 & 26 Eliz. in the Kings Bench. And Mich. 29 & 30 Eliz. in

the same Court, between Gallys and Burbry. And Coke chief Justice, in the

conclusion of his argument did, observe 7 things for the better direction of

the President and Commonalty of the said College in time to come. 1. That

none can be punished for practising of Physick in London, but by forfeiture

of 5 l. by the month, which is to be recovered by the Law. 2. If any practise

Physick there for a lesse time than a moneth, that he shall forfeit nothing. 3.

If any person prohibited by the Statute offend in non bene exeq’, &c.

they

75. [Ed.: The French here is “nota la dictum Choke.”]

76. [Ed.: not well executing, etc.]

Dr. Bonham’s Case 283

may punish him according to the Statute within the month. 4. Those who

may commit to prison by the Statute ought to commit presently. 5. The ﬁnes

which they | set, according to the Statute, doe belong to the King. 6. They

cannot impose a ﬁne, or imprison, without a Record of it. 7. The cause for

which they impose ﬁne and imprisonment ought to be certain, for it is tra-

versable; For although they have the Letters Patents and an Act of Parliament,

yet because the party grieved hath no other remedy, neither by Writ of Error,

or otherwise, and they are not made Judges, nor a Court given to them, but

have an authority only to doe, the cause of their commitment is traversable

in an action of false imprisonment brought against them; as upon the Statute

of Bankrupts, their warrant is under the Great Seal, and by Act of Parliament;

yet because the party grieved hath no other remedy if the Commissioners doe

not pursue the Act and their Commission, he shall traverse, That he was not

a Bankrupt, although the Commissioners afﬁrm him to be one; as this Term

it was resolved in this Court, in Trespass between Cutt and Delabarre, where

the issue was, whether William Piercy was Bankrupt or not, who was found

by the Commissioners to be a Bankrupt; a` fortiori

in the Case at Bar, the

cause of the imprisonment is traversable; for otherwise the party grieved may

be perpetually, without just cause, imprisoned by them: But the Record of a

force made by one Justice of Peace is not traversable, because he doth it as

Judge, by the Statutes of 15 Rich. 2. and 8 Hen. 6. and so there is a difference

when one maketh a Record as a Judge, and when he doth a thing by special

authority, as they did in the case at Bar and not as a Judge. And afterwards

for the said two last points, Judgement was given for the Plaintif, nullo con-

tradicente

as to them. And I acquainted Sir Thomas Fleming, Chief Justice

of the Kings Bench with this Judgement and with the reasons and causes

thereof, who approved of the Judgement which we had given: And this is the

ﬁrst Judgement upon the said Branch concerning ﬁne and imprisonment,

which hath been given since the making of the said Charter and Acts of Par-

liament, and therefore I thought it worthy to be Reported and published.

77. [Ed.: so much the more so.]

78. [Ed.: no one opposing.]

[121 a]

Part Eight of the Reports284

The Case of Thetford School, &c.

(1609) Easter Term, 7 James 1.

First Published in the Reports, volume 8, page 130b.

Ed.: This case is a consideration of the interpretation of a trust for charitable

purposes. Thomas Fulmerston gave lands to “certain people” so that the

income from the lands could support a preacher for four days a year, the

erection of a free school and maintenance of four poor people. The land

grew in value so that there was greater income than necessary, and the people

acting as trustee wanted to keep the excess. The Lords ruled that the excess

must be used in accord with the grantor’s intent, and the excess was used

to support more poor people.

Upon a private bill exhibited in the Parliament for erection of a Free-school,

maintenance of a Preacher, and of 4 poor people, Scil. 2 poor men, and 2 poor

women according to the Will of Sir Thomas Fulmerston, Knight a Question

was moved by the Lords, and was such: Land of the value of 35 £. Anno 9

Eliz. was devised by Will in writing to certain persons and their heirs, for the

maintenance of a Preacher four days in the year; Of a Master and Usher of

a Free Grammar School and of certain poor people, and a special distribution

was made by the Testator himself, in the same Will, amongst them, of the

Revenues, scil. To the Preacher a certain sum, and certain sums, to the School-

master and Usher, and to the Poor people, amounting in the whole to 35 £

per annum, which was the yearly proﬁt of the Land at that time; and afterwards

the lands became of greater value; viz. the value of 100 £ per annum. Now 2

Questions were moved.

—1. if the Preacher, School-master, Usher, and Poor, should have only the

certain sums appointed to them by the Founder, or that the Revenew and

proﬁt of the Land should be imployed to the increase of the Stipend of the

Preacher, School-master, Usher, and Poor?

2. If any surplusage | doth remain, how it should be imployed?

And it was Resolved, on hearing of Councel learned on both parts several

dayes at Serjeants Inn, by the two Chief Justices, and Justice Walmsey (to

whom the Lords referred the consideration of the Case) That the Revenew

and proﬁt of the said Lands should be imployed to the encrease of the Stipend

of the Preacher, School-master, &c. and Poor; and if any surplusage doeth

[131 a]

The Case of Thetford School 285

remain, it should be expended for the maintenance of a greater number of

Poor, &c. and nothing should be converted by the Devisees to their own uses.

So in the Case in Question, Where Lands in Croxton, in the County of Norfolk,

were devised by Sir Richard Fulmerston, to his Executors, to ﬁnd the said

works of Piety and Charity, with such certain distribution as is aforesaid; and

now the value of the Mannor was greatly encreased, that it shall be employed

in performance and encrease of the said works of Piety and Charity instituted

and erected by the Founder: for it appears by his distribution of the proﬁts,

that he intended all should be imployed in works of Piety and Charity, and

nothing should be converted to the private use of the Executors or their heirs.

And this Resolution is grounded on evident and apparent reason; for, as if

the Lands had fallen in value, the Preacher, School-master, &c. and Poor

people should lose, so when the Lands doe increase in value, by the same

reason they shall gain. And they said, that this Case did concern the Colleges

in the Universities of Cambridge and Oxford, and other Colleges, &c. For

in old time when Lands were of small value, (victuals then being cheap,) and

were given for the maintenance of poor Scholars, &c. and that every scholar,

&c. should have 1 d. or 1 d. ob. a day, that then such small allowance was

Competent in respect of the price of victuals, and the yearly value of the Land;

and now the price of victuals being encreased, it shall be injurious to allow

a Poor scholar 1 d. or 1 d. ob. a day, which cannot keep him, and to convert

the residue to private uses, where, in right it ought to be imployed to the

maintenance or encrease (if it may be) of such works of Piety and Charity

which the Founder has expressed, and nothing to any private use; for every

College is seised in jure Collegii, scil.

to the intent that the members of the

College, according to the intent of the Founder, should take the beneﬁt thereof

and that nothing should be converted to private uses. Panis | egentium vita

pauperum, et qui defraudat eos homo sanguinis est.

And afterwards upon Con-

ference had with the other Justices, they were of the same opinion; and ac-

cording to their opinions the Bill passed in both Houses of Parliament, and

1. [Ed.: in law of the College, that is to say.]

2. [Ed.: The bread of the needy is their life; who defrauds them of it is a man of blood (murderer).

Eccles. 34:25).]

[131 b]

Part Eight of the Reports286

afterwards was conﬁrmed by the Kings assent. Note, Reader, there is a good

Rule in the Act of Parliament called Statutum Templariorum: Ita semper quod

pia et celeberrima voluntas Donatoris in omnibus teneatur et expleatur, et perpetuo

sanctissime perseveret.

3. [Ed.: In such a way that the intent of the Donor be faithfully and continuously observed in all things,

be carried out in full, and remain forever inviolate.]

Part Nine of the Reports

The Ninth Part of Coke’s Reports was published in 1613. It was originally

entitled La Neufme part des reports del Sr. Edw. Coke chivalier, chief justice del

common bank: divers resolutions & judgments dones fur solemne arguments, &

avec grand deliberation & conference des tres-reverend judges & sages de la ley,

de cases en ley queux ne fueront unques resolve ou adjudges par devant: et les

raisons & causes des dits resolutions & judgments: publie en le dixiesme an de

treshaut & tres-illustre Jaques Roy Dengleterre, France & Ireland, & de Escosse

le 46, le fountain de tout Pietie & Justice, & la vie de la ley. In English, The

Ninth Part of the Reports of Sir Edward Coke, Knight, Lord Chief Justice of

Common Pleas, of divers Resolutions and Judgments given upon solemn Argu-

ments, and with great deliberation and Conference of the reverend Judges and

Sages of the Law, of Cases in law which were never Resolved or Adjudged Before:

and the Reasons and Causes thereof. Published in the tenth year of the most high

and Most Illustrious James, King of England, France, and Ireland, and of Scotland

the 46., the Fountain of all Justice, and the life of the Law. Coke here presented

another wide-ranging series of topics, including cases in property, criminal

law, delivery of an instrument, copyhold, ravishment of a ward, libel, trespass,

debt, trusts, leases, and procedure. A large number of these cases were decided

in the Court of Wards.

Epigrams from the Title Page:

Marleb. Ann. 52 H. 3. cap. 1.

Provisum est concordatum & concessum, quod tam majores quam minores Justitiam

habeant & recipiant in Curia Domini Regis.

Westm. 1. Ann. 3 Ed. 1. cap. 50.

Summa Charitas est unicuiq; facere justiciam omni tempore cum opus fuerit.

1. [Ed.: It is provided, agreed, and granted that both great and small should have and receive justice

in the lord king’s court.]

2. [Ed.: It is the most charitable thing to do justice at all times when it is needed,]

Part Nine of the Reports288

(Preface)

Deo, Patriae, Tibi.

Seeing the light touch I gave in my preface to mine eight worke[s] out of

consent of historie, hath with the judicious Reader (ﬁnding it consonant to

judiciall record) wrought so good effect, I will adde somewhat thereunto,

which I am persuaded will adde to their satisfaction and solace therein, who

do reverence and love (as all men ought) the nationall Lawes of their native

countrey. I have a very auntient and learned treatise of the Lawes and usages

of this kingdome whereby this Realme was governed about 1100. years past,

of the title and subject of which booke the Author shal tel you himeselfe in

these words. Which summary I have intituled, The Mirror of Justices, according

to the vertues and substances embellies which I have observed, and which have

been used by holy Customs since the time of King Arthur, &c. And soon after.

The Law whereof this Summary is made, is of antient Usages warranted by holy

Scripture; and because it is generally given to all, it is therefore called Common.

And for that there is no other Law but this, this alone of Antiquities is by general

Councils or Parliaments permitted to be used by holy Usages, &c.

In this Book in effect appeareth the whole frame of the ancient Common

Laws of this Realm, as by these few particulars shall appear: As the diversity

and distinction of the Courts of Justice (which are Ofﬁcinae Legis.

)

And ﬁrst of the High Court of Parliament, which Court is mentioned before

by the name of Council general, or Parliament, and cap. 1. § 3. King Alfred

ordaineth for a Usage perpetual, that twice in the year, or oftner if need be, they

shall assemble themselves at London to treat in Parliament of the Government

of the People of God, how they should keep themselves from sin, should live in

quiet, and should receive right by certain Laws and holy judgments, &c.

2. The Court of Chancery. It was ordained, that every one upon complaint,

should have out of the Kings Chancery a Writ remedial, without any difﬁculty,

&c. In the time of King Alfred there was no Writ of Grace, but all Writs were

remedial, grantable (as of duty) by vertue of an Oath, &c.

3. The Kings Bench. Chief Justices holding Pleas of the King. And soon after.

To the Ofﬁce of the Chief Justices belongeth, to redress and punish by Writ the

3. [Ed.: To God, to the Country, to you.]

4. [Ed.: the workshops of the law.]

In Proemio

The Book

called The

Mirror of

Justices.

Cap. I. §. 1.

The Laws

warranted

by holy

Scripture.

Why they

be called

the Com-

mon Laws

Counsels

general or

Parliaments.

The High

Court of

Parliament.

Cro. Arg. 54.

Cap. 1.

§. 3. The

Court of

Chancery.

5. §. 1.

Cap. 4. Of

Jurisdiction.

The Kings

Bench.

Preface 289

wrongful Judgments, Wrongs and Errors of other Justices; and to cause to come

before the King the Parties and the Record with the original Writ. And before

these Justices are all Writs pleadable, returnable and determinable, where it is

mentioned, Before the King himself, &c. It belongeth, also to their Ofﬁce to hear

and determine all Plaints of personal Wrongs done within twelve miles of the King:

And to deliver the Gaol of Prisoners deliverable; and to determine all that is

determinable by Justices in Eyre, and more or less, according to the nature of their

Commission.

4. The Court of Common Pleas. To the Justices of the Bench power is given

to take Fines, to hear and determine grand Assizes, Common Pleas, &c.

5. The Court of Exchequer. Moreover the Barons of the Exchequer have Ju-

risdiction over the Kings Receivers and Bailiffs and of the alienation of the ﬁefs

(or fees) and Rights belonging to the King, and to the Rights of his Crown, &c.

6. Justiciarii itinerantes,

or Justices in Eire. The Kings do Right to all Men

by their Justices, Commissioners itinerant, assigned to have Conusans of all Pleas.

In aid of such Eires, the Sheriffs Turns and Views of Frankpledges are necessary.

And all those whom the good Men of such Enquests did endite of a capital offence,

the Kings were wont to destroy without any Answer; which Usages are yet in practise

in Almaigne: But by Warrant of Pity and Mercy (because the frailty of Man cannot

refrain from sin, unless God of his Grace give him abstinence) It is accorded, That

no Appellee or Inditee shall be destroyed without Answer.

7. The Sheriffs Turn, whereof mention is made before. The Sheriffs,of ancient

Ordinance, do hold general Assemblies twice a year in every Hundred, whither

all the Freeholders, within the Hundred are bound to come by the service of their

Fiefs (or Fees) that is to say, once after Michaelmas, and another time after Easter.

And because the Sheriffs, for the doing hereof, make their Turns (or Courses)

through the Hundred, such Assemblies are called the Sheriffs Turns. Where, it

belongeth to the Sheriffs, to enquire of all Offences personal, and of all the cir-

cumstances of Offences done in those Hundreds; and of Wrongs done by the Kings

and Queens Ministers; and of Wrongs done to the King and to the Commonalty,

according to the Articles aforesaid in the Divisions of Offences.

8. Leets on Courts des Views de Frankpledge. Concerning these Assemblies,

ﬁrst it is thus ordained, That every Hundredor shall assemble once a year; and

not only Freeholders, but all of the Hundred, as well Strangers as Denizens, from

5. [Ed.: itinerant justices.]

Cap. 4.

§. eodem.

The Court

of Com-

mon Pleas.

Eodem c.

§. eodem.

The Court

of Excheq-

uer.

Cap. 1.

§. 3. The

Ofﬁce of

Justices in

Eire.

Cap. §. 16.

The Sher-

iffs Turn.

Cap. 1.

§. 17. De

Views de

Frank-

pledge.

Part Nine of the Reports290

twelve years upwards (except Archbishops, Bishops, Abbots, Priors and all Religious

People and Clerks, Ea`rls, Barons and Knights, married Women, persons dumb

and deaf, Diseased, Bastards and Lepers, and those that are Deciners elsewhere)

to enquire of the points aforesaid, and of the Articles following; and that not by

Bondmen or Women, but by the Oaths of twelve Free-men at the least; for a

Bondman cannot indite a Free-man, nor no other that is not receivable to do suit

in the same Courts. And because it was anciently ordained, That none should

abide in the Realm, if he were not in some Decine (or Tything) and undertaken

for by Free-men, the Hundredors are once a year to view the Frankpledges and

the Sureties: And therefore are such Views called Views of Frankpledges.

9. The County Court. The Sheriffs hold a Court from Month to Month, or

from ﬁve Weeks to ﬁve Weeks, according to the greatness and largeness of the

Country; and these Courts are called Counties, where the Judgments are given by

the Suitors, if there be no Writ: And this warranted by ordinary Jurisdiction.

10. Court Barons and Hundred Courts. The other mean Courts, arethe Courts

of every Lord of the Fee, &c.

11. Courts de Pipowders. And that from day to day speedy Justice be done to

Strangers in Fairs and Markets, as of Pipowders according to the Law of Merchants.

12. Court de Admiralty. The King hath Sovereign Jurisdiction upon the Sea.

13. Courts of the Forest. The Kings Ministers of his Forest have power, by

authority of their Ofﬁce, to swear Men without the Kings Writ for the safegard

of the Peace, and for the Kings Right and the common good, &c.

He also treateth of the Professors of the Law, as of the Countors, that is,

of the Serjeants and other Pleaders. There are many that cannot prosecute nor

defend their own Causes in Judgment, and many which may not: And therefore

are Countors necessary, that that which the Plaintiffs and Actors may not or cannot

do by themselves, they may do by their Serjeants, Proctors or Friends. Countors

are Serjeants skilful in the Law of the Realm, which serve the common people to

prosecute and defend their Actions in Judgment (when need is) for their Fee.

And also of Attornies, where amongst other things it is said, None may be

an Attorny, which may not be a Countor, &c.

Of the Ministers of Justice, as Viscounts, Coroners, Escheators, Bailiffs of

Hundreds, &c. Also by the ancient Kings, Coroners were ordainedin everyCounty,

and Sheriffs to keep the Peace when the Earls were absent from their Charges,

and Bailiffs in lieu of Hundredors, &c.

Of the Prerogatives of the King: As of Deodands, Alienation to Aliens, Treasure

found, Wreck, Waif, Estray, Chattels of Felons and Fugitives, Counties, Honors,

Hundreds, Sokes, Gaols, Forests, chief Cities, chief Ports of the Sea, great Maners:

Cap. 1.

§. 15. The

County

Court.

Cap. 1. §. 15.

Court Bar-

on and

Hundred

Court.

Court of

Pipowders.

Cap. 1. §. 3.

& §. 15. of

mean Courts.

Cap. 1. §. 3.

Court of

Admiralty.

Cap. 1. §. 13.

Courts of

the Forest.

Cap. 2.

§. 5. Of

Countors.

Cap. 1. §. 3.

Ca. eodem

§. eodem.

Preface 291

These held the ﬁrst Kings as their Right, and of the residue of the Land did enfeoff

the Earls, Barons, Knights, Serjeants and others to hold of the Kings, by services

provided and ordained for defence of the Realm. It was ordained, that the Knights

Fee should come to the eldest by Succession of Heritage; and that Socage Fee should

be partable between the male Children: And that the Liege Lords should have the

Marriage.

He treateth in the ﬁrst Chapter of Crimes, and their Divisions of the Crime

of Majesty, of Fausonnery,

of Treason, of Burning, of Homicide, of Felony,

of Burglary, of Rape, &c. In the second, of Actions, of Judges, of Actors, &c.

In the third, of Exceptions dilatory and peremptory, that is, Pleas to the Writ

and in Barr, &c. of Trials by Juries and by Battail, of Attaints, of Challenges,

of Fines, &c. In the fourth, of Judgments, and therein of Jurisdiction, of Proces

in criminal Causes, and in Actions real, personal and mixt. So as in this Mirror

you may perfectly and truly discern the whole Body of the Common Laws

of England. In Mr. Plowdens Commentaries, fol. 8a. in Fogasses Case, Bradshaw

Attorny General citeth this Book by the Name of Mirror des Justices, le quel

(saith he) fuit fait devant le Conquest. The meaning of Bradshaw was, not that

the Book was made before the Conquest, but that the Text of Law which he

titeth out of that Book was the Law of this Realm, before the Conquest.

But here, though summa sequar fastigia rerum,

yet I will stay my foot and

ﬁx my staff a while, for this grave and learned Author will shew us in this

Mirror the great Antiquity of the said Courts of the Common Law, and par-

ticularly of the high Court of Parliament ever since the time of King Arthur,

who reigned about the year of our Lord 516. not that this Court and the rest

were instituted then, but that the reach of his Treatise extendeth no higher

than to write of the Laws and Usages of this Realm continued since the Reign

of that King. He citeth (as you have heard) a Statute of King Alfred, as well

concerning the holding of this Court of Parliament twice every year at the

City of London, as to manifest the threefold end of this great and honorable

Assembly of Estates. 1. That the Subject might be kept from offending, that

is, that Offences might be prevented both by good and provident Laws and

by the due Execution thereof. 2. That men might live safely in quiet: And 3.

That all Men might receive Justice by certain Laws and holy Judgments, that

is, to the end that Justice might be the better administred, that Questions and

6. [Ed.: Falsifying or counterfeiting a seal or coin.]

7. [Ed.: which was made before the conquest. . . . I will only cover the main points.]

Part Nine of the Reports292

defects in Laws might be by this high Court of Parliament explained, reduced

to certainty, and adjudged.

This Court, being the most supream Court of this Realm, is a part of the

frame of the Common Laws, and in some Cases doth proceed legally according

to the ordinary course of the Common Law, as it appeareth in 39 Edw. 3. f.

To be short, of this Court it is truly said, Si vetustatem spectes est antiquissima,

si dignitatem est honoratissima, si Jurisdictionem est capacissima.

And where Question hath been made whether this Court of Parliament

continued during the Heptarchy, let the Records themselves make answer.

King Ina began his Parliament thus, as hath been anciently translated into

Latin (which Translation I have:) Ego Ina Dei gratia West Saxonum Rex, ex-

hortatione & doctrina Cenredes patris mei, & Heddes Episcopi mei, & Erken-

waldes Episcopi mei, & omnium Aldremannorum meorum & seniorum Sapien-

tum Regni mei, multaq; congregatione Servorum Dei sollicitus de saluteanimarum

nostrarum & statu Regni mei, Constitui rectum conjugium, & justa judicia, pro

stabilitate & conﬁrmatione populi mei, benigna sedulitate celebrari: Et nullo Al-

dremanno vel alicui de toto regimine nostro conscripto liceat abolere judicia.

The like Parliament was holden by Offa King of the Mercians, and by Eth-

erbert King of Kent, and the rest of the seven Kings. After the Heptarchy,

taking some few Presidents for many, King Edward, Son of the aforenamed

King Alfred, before the Conquest the ﬁrst, held a Parliament at Exeter, and

called thither all his Wisemen: Edwardus Rex admonuit omnes Sapientes suos

qui fuerint Exoniae ut investigarent simul & quaererent quomodo pax eorum

melior esse possit quam ante fuit, &c.

And it shall evidently appear hereafter,

that this Conventus Sapientum

included the Lords and Commons of the

Parliament.

King Ethelstaen apud Grateleiane,

where all the Noblemen and Wisemen

8. [Ed.: If you seek antiquity, it is ancient; if dignity, it is most honorable; if jurisdiction, it is very

broad.]

9. [Ed.: I, Ine, by the grace of God king of the West Saxons, by the exhortation and teaching of Cenrede

my father, and Hedde my bishop, and Erkenwald my bishop, and of all my ealdormen and wise elders of

my kingdom, and by a great gathering of the servants of God, being solicitous of the health of our souls

and the estate of my kingdom, have appointed right union and just judgments to be laid down with benign

diligence for the establishment and strengthening of my people; and it shall be lawful for no ealdorman

or other person of our whole realm to abolish judgments.]

10. [Ed.: King Edward warned all his wise men to be at Exeter to investigate together and enquire how

their peace might be made better than before etc.]

11. [Ed.: meeting of wise men.]

12. [Ed.: at Grateley.]

Preface 293

of the Realm were gathered together; here was Conventus omnium Nobilium

& Sapientum.

In the Reign of the same King other of his Acts of Parliament

are stiled and anciently translated thus. Haec sunt Judiciae Exoniae quae Sap-

ientes consilio Ethelstani Regis instituerunt, & iterum apud Fresresham & tertia

vice apud ubi haec diﬁnita simul & conﬁrmata sunt.

King Edgar, sirnamed Paciﬁcation, at several places enacted many Laws by

the Counsel of his Wisemen, here was Consilium Sapientum,

whose Acts of

Parliament, being antiently translated into Latin, were intuled thus, Haec sunt

instituta quae Edgarus Rex consilio Sapientum suorum instituit, &c.

King Etheldred at Woodstock; and there Laws ordained by him and his Wise-

men: Hoc est Consilium quod Etheldredus Rex & omnes Sapientes sui condixerunt,

ad emendationem pacis omnis populi, apud Woodstock:

And another Parlia-

ment by him and his Wisemen, both Spiritual and Lay: Here was Consilium

Spiritualium & Laicorum.

And stiled another thus, Haec sunt verba pacis &

prolocutionis quae Etheldredus Rex & omnes Sapientes ejus cum exercitu ﬁr-

maverunt, qui cum Anulano, Justinio & Guemundo Stigrani ﬁlio venit.

And

held another Parliament at Habam: Haec instituerut

Etheldredus Rex & Sap-

ientes ejus apud Habam.

King Edmund at London, where he summoned both the Spiritualty and

Temporalty, and called them by one general Name of Wisemen: Here was

Conventus Sapientum Spiritualium & Temporalium.

But it is best to hear the

ancient Translator himself, Edmundus Rex congregavit magnam Synodum divini

ordinis & seculi apud Londoniae Civitatem, in Sancto Paschae solenni, &c.

13. [Ed.: a meeting of all the noble and wise men.]

14. [These are the judgments of Exeter which were instituted by the wise men of the council of King

AEthelstan, and again at ‘Fresresham’, and a third time at [blank] where these were deﬁned and conﬁrmed

together.]

15. [Ed.: council of wise men.]

16. [Ed.: These are the constitutions which King Edgar instituted by the council of his wise men.]

17. [Ed.: This is the advice which King AEthelred and all his wise men brought in for the improvement

of the peace of the whole people.]

18. [Ed.: council of spiritual and lay men.]

19. [Ed.: These are the words of peace and of the speech which King AEthelred and all his wise men

conﬁrmed with the army which came with Anulanus, Justinius and Guemundo son of Stigranus.]

20. [Ed.: These things were instituted [NB belongs with next passage].]

21. [Ed.: by King AEthelred and his wise men at ‘Habam’.]

22. [Ed.: a meeting of wise men, spiritual and temporal.]

23. [Ed.: The king assembled a great synod of the clergy [literally, divine order] and of secular persons

at the city of London at the holy feast of Easter.]

Part Nine of the Reports294

And another of his Parliaments beginneth thus, Hae sunt institutiones quas

Edmundus Rex & Episcopi sui cum sapientibus suis instituerunt apud Culincona,

&c.

And soon after, Ego Edmundus Rex mando & praecipio omni populo

Seniorum & Juniorum qui in regione mea sunt, qui investigans investigavi cum

sapientibus Clericis & Laicis.

King Canutus at Winchester; by the King and the reverend Council of his

Wisemen. There was Venerandum Concilium Sapientum.

For so was that

Parliament being of ancient time translated into Latin, called, but hear the

Title itself: Haec sunt Statuta Canuti Regis Anglorum, Danorum, Norvegarum

venerando Sapientum ejus consilio, ad laudem & gloriam Dei, & sui regalitatem,

& commune commodum, habita in Sancto Natali Domini apud Wintoniam,

&c.

All which and many more are extant and publickly known, but I will add

that which I read in the legier Book of the late Monastery of Saint Edmonds

Bury, now in my hands, of an ancient handwriting, wherein is cited a Par-

liament holden in the ﬁfth year of this King Canutus Reign; but I will keep

silence, and let the Book it self speak. Rex Canutus anno Regni sui quinto,

videlicet,

Per centum & triginta annos ante compilationem Decretorum quae

anno Domini 1150. fuer’ compilat’, anno septimo Pontiﬁcatus PapaeEugenii tertii,

& ante compilationem aliorum Canonum quorumcunq; cunctos Regni sui Prae-

latos, Proceresq; ac Magnates ad suum convocans Parliamentum in suo publico

Parliamento persistentibus personaliter in eodem Wulstano & Adelnodo Ar-

chiepiscopis & Ailwino Episcopo Elmhamense, & aliis Episcopis ipsorum suf-

fraganeis, septem Ducibus cum totidem Comitibus, necnon diversorum monas-

teriorum nonnullis Abbatibus, cum quamplurimis gregariis militibus, ac cum

populi multitudine copiosa, ac omnibus adhuc in eodem Parliamento personaliter

existentibus, votis Regiis unanimiter consentientibus praeceptum & decretum fuit,

24. [Ed.: These are the institutions which King Edmund and his bishops, with their wise men, instituted

at ‘Culincona’, etc.]

25. [Ed.: I, King Edmund, command and order all people, both old and young, who are within my

jurisdiction, that I have sought out with wise clerks and laymen . . .]

26. [Ed.: Venerable council of wise men.]

27. [Ed.: These are the statutes of Canute, king of the English, Danes and Norse, with the venerable

advice of his wise men, to the praise and glory of God, and his regality, and the common proﬁt, made at

the feast of Christmas at Winchester etc.]

28. Pryn sur 4 Institut. f. 78. [Ed.: in the ﬁfth year of his reign, namely.]

Preface 295

quod Monasterium Sancti Edmundi, &c. sit ab omni Jurisdictione Episcoporum

Comitatus illius extunc imperpetuum funditus liberum & exemptum, &c. Illustris

Rex Hardicanutus praedicti Regis Canuti ﬁlius, haeres & successor, ac sui patris

vestigiorum devotus imitator, &c. cum laude & favore Aegelnod’ Dorobornensis,

nunc Cantuariensis, & Alfrici Eborac’ Episcoporum, aliorumq; Episcoporum

suffragan’, necnon cunctoruns Regni sui mundanorum principum descriptum con-

stituit roboravitq; praeceptum.

Which immunity I know that the said Mon-

astery held until the dissolution thereof in the 31st year of the Reign of King

Henry the eighth.

But let us proceed, and yet omit many, and touch only that which hath

been controverted. It is said, that Silent leges inter arma,

and that during all

the time of the Conqueror no Parliament was lawfully assembled, &c. for

Silent leges inter arma, and during all his Reign, either the Sword was not put

up into the scabbard, or if it were, the Hand was always upon the hilt ready

to draw it again. But that a Parliament was assembled and holden according

to the common Laws of England, in William the Conquerors time, it is evident,

for that an Act established at a Parliament holden in the Reign of W. the

Conqueror was pleaded and adjudged to be ﬁrm and good and accordingly

put in execution by the Judges of the Realm, which they neither would nor

could have done, if it had been commanded by the powerful Will of the

Conqueror, and not established by a Parliament duly assembled, according

to the form and frame of the Common Law. And therefore as well for man-

ifestation hereof; as for proof of that which hath been said, you shall read in

29. [Ed.: For one hundred and thirty years before the compilation of the decretals which were compiled

in the year of our Lord 1150, in the seventh year of the pontiﬁcate of Pope Eugenius III, and before the

compilation of any other canons whatsoever, [King Canute] summoned the whole body of prelates, peers

and magnates of his realm, in his public parliament; and archbishops Wulstan and Adenoldo, bishop Ailwin

of Elmham, and other bishops their suffragans, seven dukes, with all the earls, and many abbots of various

monasteries, and great crowds of knights, personally appeared there with a copious multitude of people;

and, while all of them were still in the same parliament, it was ordered and decreed by the royal will,

everyone consenting, that the monastery of St. Edmund, etc. should thenceforth for ever be free and exempt

for ever from all jurisdiction of the bishops of that county etc. The illustrious King Hardicanute, son of

the aforesaid King Canute, his heir and successor, and a devoted imitator of the ways of his father, with

the praise and favour of bishops Aegelnod of Dover, now of Canterbury, and Aelfric of York, and other

bishops their suffragans, and also of the whole body of people of his realm, have constituted and conﬁrmed

the above mentioned command of worldly princes.]

30. [Ed.: The laws are silent amidst arms [during war].]

Part Nine of the Reports296

the Book Case of 21 E. 3. f. 60a., 60b.

That the King sued a Writ of Attachment

upon a Prohibition against the Bishop of Norwich, for that where the Abby of

St. Edmonds Bury in the County of Suffolk was founded by the Progenitors of

the King, and exempt from all Jurisdiction of the Ordinary, and that no Ordinary

should visit there, and that none should go against the said ordinance and the

foundation aforesaid: That upon controversie between Arfastus late Bishop of

Norwich, and B. late Abbot of Bury, of the Exemptions aforesaid; in the time

of William the Conqueror, at his Parliament on a certuin day holden, it was

ordained by the King, the Archbishop of Canterbury, and all the other Bishops

of the Land, the Earls, Barons, &c. That at what time the Bishop of Norwich,

or any of his successors, should go against the points of the foundation, and ex-

emptions aforesaid, that the Bishop for the time being should pay to the King or

to his Heirs thirty Talents of Gold: And declared further, how the King sent a

Prohibition to the Bishop, that he should not enter into the said Franchise, nor

attempt any thing against the priviledge of the said Church of St. Edmund, and

that notwithstanding the said Prohibition, the then Bishop of Norwich had visited

the Abby aforesaid, and had summoned the Abbot to shew the Charters of their

Foundation, wrongfully and in despight of our Sovereign Lord the King: whereunto

the then Bishop pleaded not guilty, and he was found guilty by the Verdict of the

Enquest. Whereupon it was adjudged, that the Temporalties of the Bishop should

be seised into the Kings Hands. But it was advised and resolved by all the Judges,

that in right of the Talents they could not give Judgment; for two causes: 1. For

that the Prohibition was the original Suit, and that was determined by the Judg-

ment in the Prohibition, that the Temporalties of the Bishop should be seised into

the Kings Hands, which then was the proper Judgment in the Suit. 2. Concerning

the Talents they were a penalty ordained by Parliament in that case, so that the

Penalty had no dependency upon the Prohibition, which is the original Suit. But

it was advised and resolved by the Judges, that the Bishop of Norwich had forfeited

the said Penalty of the Talents to the King, and that they ought to grant a Scire

facias

to the then Bishop for that purpose, which was granted accordingly, upon

which Writ the Bishop appeared and pleaded, and thereupon Judgment was given,

that the King should recover the said Talents, as by the said Book Case judicially

adjudged appeareth.

31. Pryn sur 4 Institut. 1, 7. 4 Inst. 12.

32. [Ed.: Writ to require a person to act or show cause to avoid acting on the basis of a record, such

as a judgment.]

Preface 297

Which Case if the Opponents had seen or known, they would have there-

with rested satisﬁed. And this notable Judgment giveth credit to that ancient

Treatise, intituled thus, (a)

Modus tenendi Parliamentum. Hic describitur mo-

dus quomodo Parliamentum Regis Angliae, & Anglicorum suorum tenebatur

tempore Regis Ed. ﬁlii Regis Etheldredi, qui quidem modus fuit per discretiores

Regni, coram Williel’ Duce Normaniae, & Conquestore & Rege Angliae, ipso

Conquestore hoc praecipiente, & per ipsum approbat’ & suis temporibus & suc-

cessoribus, suorum Regum Angl’ usitat’:

Wherein the Assembly of the Kings,

the Lords and Commons, according to the manner continued to this day, is

set down, which I have in a fair and very ancient written hand, whereby it is

manifest that Conventus Nobilium & Sapientum, &c.

included both the Lords

and the Commons of the Parliament.

It is evident

that there were Tenants in ancient demesne before the Con-

quest, and for a certainty therein, and to know of what Manors such Tenants

did hold, it appears by the Book of Domesday, that all the Tenants that did

hold any of those Manors that were in the hands of King Ed. the Son of King

Etheldred, or of King W. the Conqueror, were Tenants in ancient demesne.

And these Tenants then had and yet have these priviledges amongst others,

for that they were bound by their tenure to plow and husband, &c. the Kings

demesns before and in the Conquerors time, therefore they were not to be

returned Burgesses to serve in Parliament, to the end they might intend the

Kings Husbandry the better. 2. They were not to be contributory to the Fees

of the Knights of Shires that served in Parliament; which Priviledges (though

the cause ceaseth) continueth to this day; therefore there were Parliaments

unto which the Knights and Burgesses were summoned both before and in

the Reign of the Conqueror. For your satisfaction herein, see F.N.B. 14.e. 49

Edw.3.22.b.2.3.a. 40 Edw.3.25. 11Hen.4.2. &c. Also the ancient Towns called

Boroughs are the most ancient Towns within England, for those Towns which

now are Cities and Counties, in ancient time were Burghs, and called Burghs,

for out of those ancient Towns called Burghs came the Burgesses to the Par-

liament, which are the very words of Littleton lib. 2. c. 10. Vide 40 Ass. p. 27.

33. a) Pryn sur Inst. 1, 2, 3, tc. 78, &c. Inst. 12.

34. [Ed.: The Method of Holding Parliament ...,thetitle of the treatise.]

35. [Ed.: a meeting of noble and wise men, etc.]

36. F.N.B. 14. d.

Part Nine of the Reports298

11 Hen.4.2. 22 Edw.4.11. &c. So as it appeareth that the ancient Burghs are

the most ancient Towns of England, and consequently long time before the

Conquest; and I have found many of them since the Conquest incorporated

into Cities, and distinguished into Counties since the Conquest, but had been

ancient Burghs (from whence came the Burgesses to the Parliament) time out

of mind before the Conquest: Nay divers of the most ancient Burghs, that

yet send Burgesses to the Parliament, ﬂourished before the Conquest, and

have been of little or no account to have any such privileges newly granted

to them at any time since. And I could yet never ﬁnd when any of them, or

any other the ancientest Burghs, were of ancient time since the Conquest

endowed with that privilege.

King Henry the ﬁrst Anno Domini 1100

cum suorum consilio decrevit ut

monetagium commune quod capiebatur per Civitates vel Comitatus quod non

fuer’ tempore Edwardi Regis, hoc ne amodo ﬁet. Item quod Ecclesius non venderet

nec ad forman daret, mortuo Episcopu vel Abbate.

And this King assembled

another Parliament

on Candlemas Day at London Anno Domini 1123.

King Henry the Second in the year of our Lord God 1185. (as testiﬁeth

Mathew Paris) Convocavit Clerum Regni & populum cum omni Nobilitate ad

fontem Clericorum.

King John held a Parliament in the sixth year of his Reign, as it appeareth

by his Writs of the Chancery in these words: Rex Vicecomiti, &c. Sciatis quod

consensum est cum assensu Archiepiscorum, Comitum, Baronum & omnium ﬁ-

delium nostrorum Angliae, quod novem Milites per totam Angliam invenient

decimum Militem bene paratum equis & armis ad defensionem Regni nostri, &c.

But to proceed any further were but to gild Gold, or to add a little Drop to

the great Ocean.

Concerning the name of the Parliament two things fall into consideration,

37. Richardus Hagustadensis & Math. Paris. in brevi Historia.

38. [Ed.: In the year of our Lord 1100, [King Henry I] with his council decreed that the common mint

which was undertaken by the citizens or the county, which was not in the time of King Edward, should

not from thenceforth be done. Also that he would not sell or let to farm churches on the death of the

bishop or abbot.]

39. Ex Chronico de Peterburgo.

40. [Ed.: Called together the clergy and people of the realm, with all the nobility, to Clerkenwell.]

41. [Ed.: The King to the Sheriff etc. Know ye that it is agreed, with the assent of the archbishops,

earls, barons and all our faithful subjects of England, that every nine knights throughout England should

ﬁnd the tenth knight ready with horses and arms for the defence of our kingdom, etc.]

Preface 299

1. What the Word signiﬁeth. 2. When this supream Court was christened by

the name of Parliament: Touching the ﬁrst, it is so called for two causes, 1.

Because that every Member of that high Court hath judicial place, and for

that every Man there should without any Spirit, either of contradiction or

smoothing, Parler la ment,

speak judicially his mind, it is called Parliament.

2. The Laws there made are called Acts of Parliament, because they are to be

expounded, being part of the Laws of the Realm, by the Judges of the Law,

according to the mind and true meaning of the speakers that were the makers

of these Acts; as Testamentum

is to be expounded secundum mentem Tes-

tatoris,

and Arbitramentum secundum mentem Arbitatoris.

As to the 2d,

the Saxons called this Court micel gemott,

the great Assembly, wittenagemott,

the Assembly of Wise Men, the Latin Authors of those times called it Commune

Concilium, magna Curia, generalis Conventus, &c.

And let it be granted, that

W. the Conqueror changed the name of this Court, and ﬁrst called it by the

name of a Parliament, yet manifest it is by that which hath been said, that

he changed not the frame or jurisdiction of this Court in any point. And the

very Names in substance that were attributed to this Court before the Con-

quest, are continued after the Conquest to this day. For in the Mirror of

Justices, as appeareth before, it is called Concilium generale, Fleta lib.2.c.2.

Habet etiam Rex Curiam Suam in Concilio Suo in Parliamentis Suis, praesentibus

Praelatis, Comitibus, Baronibus, Procerib’, & aliis viris peritis.

8 R.2. Avowry

260. and in many other Books it is called Rex & Concilium: In the Original

Regist.f.280. it is called Magnum Concilium. In Dorso claus.16 E.2. M. 5.

Henricus de bello monte Baro de magno & Secreto Concilio Regis:

and Rot.

Parliam’ an. 3E.4.parte prima M. 2. it is called Magnum Concilium. Bracton

42. [Ed.: to speak the mind.]

43. Co. Lit. 110. b.

44. [Ed.: testament.]

45. [Ed.: according to mentum testatoris (the mind of the testator).]

46. [Ed.: arbitration according to the mind of the arbitrator.]

47. Tay. Hist. Gav. 65. Co. Lit. 110. a.

48. [Ed.: the great meeting.]

49. [Ed.: the meeting of wise men.]

50. [Ed.: The common council, great court, general meeting, etc.]

51. [Ed.: The King also has his court in his council in his parliaments, in the presence of the prelates,

earls, barons, peers and other learned men.]

52. [Ed.: Henry, baron de Beaumont, of the king’s great and secret council.]

Part Nine of the Reports300

lib. 1. c. 2. termeth it Magna Curia. Anno 17 E. 2. de Templariis, Super quo

convocatis Majoribus de Concilio Domini Regis tam Justiciariis quam Laicis per-

sonis in Parliamentum, concordatum est in Parliamento, &c.

And in many

Statutes in the Reigns of Henry the third Edward the ﬁrst and succeeding Kings,

it is called Commune Concilium, and Commune Concilium Regis, and Commune

Concilium Regni,

and so runneth the Writ of Wast,

and many other original

and judicial Writs. But if any be desirous to see more of this King, let him

look into the eighth part of my Reports in the Princes Case. So as I conclude,

that the nature and name of the Court, in use before the Conquest, continueth

to this day. And where some do suppose, that in the Parliament holden at

Westminster, in the third year of the Reign of King Edward the ﬁrst called

Westm’ the 1. this Word Parliament ﬁrst crept in, where it is called the ﬁrst

general Parliament by the assent of the Archbishops, Bishops, Abbots, Priors,

Earls, Barons and all the Comminalty of the Land summoned to the same,

&c. It is manifest that the name was long before that time, as well by that

which hath already been said, as for that in the 9th year of Edward 2. Son

and immediate Successor to King Edward 1. at a Parliament then holden, it

is said thus, Sciatis quod iam dudum temporibus progenitorum nostrorum quon-

dam Regum Angliae in diversis Parliamentis suis, &c.

which could not have

truly been said if the Name had ﬁrst begun in the Reign of his Father.

57,58

This is not that Court that in France bear the Name of Parliaments, for they

are but ordinary Courts of Justice which (if you believe Paulus Jovins) were

by us ﬁrst setled there: But this is that which both England and Scotland agree

in naming of it a Parliament, which the French doth term Assemblee des Estats,

or les Estats, and the German a Dyet.

Fleta ubi Supra a saith of this Court, Ubi terminatae sunt dubitationes ju-

53. [Ed.: Whereupon, the leading members of the lord king’s council, both justices and lay persons,

having been called into parliament, it is agreed in parliament, etc.]

54. [Ed.: Common council, and the king’s common council, and the common council of the realm.]

55. [Ed.: Waste]

56. Pryn sur 4 Institut. 2, &c.

57. [Ed.: Be it known that not long since, in the times of our forebears formerly kings of England, in

their various parliaments, etc.]

58. Co. Lit. 110.a.

59. [Ed.: assembly of the estates, or the estates.]

Preface 301

diciorum, & novis injuriis emersis nova constituuntar remedia, & unisuique jus-

ticia prout meruerit retribuetur ibidem.

In Master Plowdens Commentaries 388.

Le Parliament est Court de tresgrand

honour & justice, de que nul doit imaginit chose dishonourable.

I will pretermit

Fortescue sometime Chief Justice of England, in his Treatise De Laudibus Legum

Angliae,

and many others, and will conclude this Point with him that is the

chief Antiquary of his time, because he concludeth the sum of all aptly, dis-

tinctly and eloquenly,

sol. 128. b. Quod ad Angliae Tribunalia, Curias, ﬁve

Juris fora attinet, in triplici sunt apud nos differentia, alia enim sunt Ecclesiastica,

alia temporalia, & unum mixtum, quod maximum, & longe amplissimum, non

ita vetusto nomine e Gallia mutuato Parliamentum dicitur. Majores nostri Anglo-

Saxones Wittena gemott, i. Prudentum Conventus, & Geredniss, i. Concilium,

& Micel synod (a Graeca dictione, synodus) i. Magnus Conventus, Latini ejus

& Subsequentis aevi Scriptores, Commune Concilium, Curiam altissimam, ge-

nerale placitum, Curiam magnam, Magnatum Conventum, praesentiam Regis,

Praelatorum, Procerumque collectorum, commune totius Regni Concilium, &c.

vocarunt. Utque universum AEtoliae Concilium Panetolium Livio nominatur,

ita Pananglium, recte dici possit. Ex Rege enim, Clero, Nobilibus, Majoribus,

Equitibus & Burgensibus electis; sive ut signiﬁcantius dicam stylo forensi, ex Rege,

Dominis spiritualibus, & temporalibus, atque ex Communitate constat, qui univ-

ersae Angliae corpus repraesentant. Statis autem temporibus non habetur, sed a

Rege pro arbitrio indicitur, quoties de rebus arduis & urgentibus, ne quid detri-

menti Respublica capiat, consultandum, ejusdemq; solius arbitrio dissolvitur.Sum-

mam autem & sacrosanctam authoritatem habet in legibus ferendis, conﬁrmandis,

antiquandis, interpretandis, proscriptis in integrum restituendis, litibus inter pri-

vatos difﬁcilioribus decidendis, & ut semel dicam, in omnibus quae ad reipublicae

salutem, vel etiam privatum quemcunq; spectare possint.

60. [Ed.: where doubtful judgments are determined and new remedies appointed for new injuries, and

there everyone who should merit it is given justice.]

61. Plowd. 398. b. 11 Co. 14. a.

62. [Ed.: the parliament is a court of the greatest honour and justice, of which no one ought to imagine

a dishonourable thing.]

63. [Ed.: In praise of the laws of England.]

64. Camden.

65. [Ed.: There are with us three distinctions with respect to the tribunals, courts or jurisdictions of

Part Nine of the Reports302

In this ancient Mirror you may also clearly discern as far as the Reign of

the often named King Arthur, the great Antiquity of the Ofﬁcers and Ministers

of the Common Law, and of their inferior Courts, as for example, of the Ofﬁces

of the Keepers or Senators of the Shires or Counties, Custodes seu Praepositi

Comitatus,

of later times called Shireves (who saith this Author fueront or-

deines per veiels Roys quant les Countees demisterent des gards

) and of his Tourns

and County Courts: Which Ofﬁcers and division of Shires continued (as you

may read amongst the Laws of those seven Kings) though with much in-

croachment, during the Heptarchy, as taking one or two Examples for many:

Amongst the Laws of King Ina it is provided in these Words, Gif hwa hun

righter bidde beforan scirman oth the othrun deman,

the ancient Translation

thus, Si quis rectum sibi roget coram aliquo Scirman (i. Praeposito comitatus)

vel alio Judice & habere non possit, & accusatus vadium recti dare nolit, emendet

30 s. & infra septem noctes faciat ei recti dignum.

And in another place, Gif he Eldorman hy, tholige his scire, Qui furem ceperit,

vel captum reddiderit, vel ipsum dimiserit, vel furtum celaverit, reddat ipsum

furem secundum weram suam, si Eorldermannus, i. Praepositus Comitatus sit,

England; for some are ecclesiastical, some temporal, and one is mixed: and that is the greatest and most

extensive, not so long ago called parliament (borrowing the French name). The greater Anglo-Saxons called

it ‘witena gemot’, that is, a meeting of wise men, and ‘gerednis’, that is, a council, and ‘micel synod’ (from

the Greek word synod), that is, a great meeting. The Latin writers of that and subsequent periods call it

the common council, the highest court, the general plea, the great court, the great meeting, the presence

of the king, prelates and peers gathered, the common council of the whole realm, etc. And as Livy called

the supreme council of Aetolia ‘Panetolium’, so ought it rightly to be called Pan-anglium. It consists of

the king, the clergy, the nobles, and the mayors, knights and burgesses who have been elected, or (as is

more signiﬁcantly said in legal style) the king, the lords spiritual and temporal, and the commons: who

represent the body of the whole of England. At certain times it does not exist, for it is proclaimed at the

king’s pleasure whenever he needs advice concerning difﬁcult and urgent matters, lest any damage be done

to the state; and it is dissolved by the same power alone. It has the ultimate and sacrosanct authority in

laying down, conﬁrming, abrogating, interpreting and consolidating laws, deciding the more difﬁcult law-

suits between private people, and in all things whatsoever that may belong to the health of the state or to

any private matter.]

66. [Ed.: keepers or provosts of the counties.]

67. [Ed.: were ordained by ancient kings when earls were deprived of the custody [of the counties].]

68. [Ed.: If anyone leaves his lord without licence, or steals into another county, and then returns, he

shall go back to the place where he was before and make amends of sixty shillings to his lord etc.]

69. [Ed.: If anyone should seek justice to be done him before any shire-man (that is, provost of a

county), or other judge, and cannot have it, and the accused person will not give a gage of justice, he shall

make amends of thirty shillings and within seven months do him such justice as he deserves.]

Preface 303

perdat Comitatum suum nisi Rex parcere velit ei.

If the Shireve do it he shall

lose the Custody of his Shire or County: And afterwards, Si quis discedat a

domino suo sine licentia, vel in alium Comitatum se furetur, & deinceps inven-

iatur, redeat illuc ubi antea fuit, & emendet domino suo lx s. &c.

And albeit the Saxons gave this Ofﬁcer the vulgar Name used to this day,

yet it is manifest that the Ofﬁce was of ancient time before they set any foot

in England.

This word Shireve is derived of two Saxon words, viz. of Scyre,

that is, the Shire or County, and Reve, that is, Custos, or Praepositus Comitatus,

the Keeper or Gardein of the Shire; and sometime (as you see) they were called

Shire-man or Elderman of the Shire. And to this day his Patent is, Commisimus

vobis Custodiam Comitatus.

74,75

So I agree well with them which afﬁrm that

King Alfred divided England into Shires or Counties, in that he made the most

certain division of them; for where, during the time of the Heptarchy, there

were many Incroachments one upon another, and many ancient bounds ob-

scured, all that he reformed by his exact partition. But they must also agree

with me, that long before the Birth of King Alfred this Kingdom had been

divided into Shires or Counties. But hereof, at this time, this little shall sufﬁce.

I have in my custody an ancient Record intitled Kanc’ de placito apud Pi-

nendenam inter Lanfrancum Archiepiscopum Cant’, & Odonem Baiocensem Ep-

iscopum tempore magni Regis Willielmi qui Anglicum Regnum armis conqui-

sivit:

The effect whereof is, That Lanfrank Archbishop of Canterbury brought

a Writ of right Patent against the said Odo of the Manors of Raculfe, Sandwic’,

Rateburg’, Widetun, Saltwode, cum Burgo Heth ad Saltwode pertinente, Lang-

port, Huoenden, Rokinge, Broche, Detling, Prestitune, Sunderhurst, Earheth, Or-

pintune, Einsford, &c., una cum libertatibus & pertinentiis de soca, saca, Toll,

Team, Flymena, Firmith, Grithbreach, Storsteale, Haunfare, Infangentheof, cum

70. [Ed.: If he is an ealdorman, he shall forfeit his shire. He who takes a thief, or renders someone

captive, and lets him go, or conceals the theft, shall pay for the thief according to his wergeld. If he is an

ealdorman (that is, provost of a county), he shall lose his county, unless the king is willing to spare him.]

71. [Ed.: If anyone should seek justice before the shire-man or other judge.]

72. Co. Lit. 109. b. 168. a.

73. [Ed.: keeper or provost of the county.]

74. [Ed.: we have committed to you the keeping of the county.]

75. Co. Lit. 168.a.

76. [Ed.: Kent. Concerning a plea at Pennenden between Lanfranc, archbishop of Canterbury, and

Odo, bishop of Bayeux, in the time of the great King William who conquered the English realm with

arms.]

Part Nine of the Reports304

omnibus aliis consuetudinibus paribus istis, vel minoribus istis, in terris & in

aquis, in sylvis, in viis, & in pratis, & in omnibus aliis rebus infra Civitatem,

& extra, & in omnibus aliis locis:

Which Writ was removed into the County

Court by a Writ called a Tolt: and the Record saith, Quod praecepit Rex Com-

itatum totum absque mora considere, & omnes Francigenas, & praecipue Anglos

in antiquis legibus & consuetudinibus peritos in unum convenire: qui cum con-

venerint apud Pinendenam pariter considerunt, &c. Huic placito interfuerunt

Ernestus Episcopus de Rovec’, Agelricus Episcopus de Cicestr’, vir antiquissimus,

& legum terrae sapientissimus, qui ex praecepto Regis advectus fuit, ad ipsas an-

tiquas legum consuetudines discutiendas & edocendas, in una quadriga, Richardus

de Tunebreg, Hugo de Monteforti, Willielmus de Acres, Haymo Vicecomes, & alii

multi, &c. Barones Regis & ipsius Archiepiscopi, atque illorum Episcoporum hom-

ines multi, &c. cum toto isto Comitatu multae & magnae authoritatis viri, &c.

Et ab omnibus illis probis & sapientibus hominibus qui affuerunt fuit ita dir-

aciocinatum & etiam a toto Comitatu recordatum atque judicatum, quod sicut

ipse Rex tenet suas terras liberas & quietas in suo dominico, ita Archiepiscopus

teneat suae terras praedictas omnino liberas & quietas in dominico, &c.

And

let not this ancient Judgment in a Writ of Right seem strange: for since that

time, and to this day the Judgment for the Tenant in a Writ of Right is, Quod

teneat terram illam, &c. quietam, or, in pace, &c.

And under this Record it

is thus testiﬁed. Hujus placiti multis testibus multisque rationibus determinatum

ﬁnem postquam Rex audivit, laudavit, laudansque cum consensu omnium Prin-

77. [Ed.: [Following the list of locations], together with the liberties and appurtenances of soke, sake,

toll, team, ﬂymenfyrm, grithbreche, [forestel], hamfare, infangthief, and all other customs equivalent to

these, or less than these, on land and in water, in woods, in ways, and in meadows, and in all other things

within the city and without, and in all other places.]

78. [Ed.: that the king commanded the whole county to meet without delay, and that there should be

convened all the Frenchmen and especially the English who were learned in the old laws and customs;

and they met at Pennenden, and sat down together, etc. At this case were present Arnost, bishop of Rochester,

AEthelric, bishop of Chichester, a most elderly man and very wise in the laws of the land, who was brought

in a cart by the king’s command to discuss and explain the old customs of the laws, Richard de Tonbridge,

Hugh de Montfort, William de Acres [Arques], Hamo the sheriff, and many others, etc., the king’s barons

and his archbishops, and many of the said bishops’ men, etc., with the whole of that county, men of much

and great authority, etc. And it was decided by all these good and wise men who were present, and also

recorded and adjudged by the whole county, that just as the king himself holds his lands freely and quit

in his demesne, so the archbishop should hold his aforesaid lands utterly free and quit in his, etc.]

79. [Ed.: that he hold the land, etc. quiet, or in peace, etc.]

Preface 305

cipum suorum conﬁrmavit & ut incorruptus perseveraret ﬁrmiter praecepit.

And

the cause of this Controversie is there also expressed in these words. Tempore

magni Regis Willielmi qui Anglicum Regnum armis conquisivit, & suis ditionibus

subjugavit, contigit Odonem Bajocensem Episcopum & ejusdem Regis fratrem

multo citius quam Lanfrancum Archiepiscopum in Angliam venire atque in Com-

itatu de Chent cum magna potentia residere, ibique potestatem non modicam

exercere. Ac quia illis diebus in Comitatu illo quisquam non erat qui tantae

fortitudinis viro resistere posset propter magnam quam habuit potestatem, terras

complures de Archiepiscopatu Cantuar’ & consuetudines nonnullas sibi arripuit,

atque usurpans suae dominationi. Postea vero non multo tempore contigit prae-

fatum Lanfrancum Cadomensis Ecclesiae Abbatem jussu Regis in Angliam

quoque venire, atque in Episcopatum Cantuar’, Deo disponente, totius Angliae

primatum sublimatum esse, ubi dum aliquandiu resideret, & antiquas Ecclesiae

suae terras multas sibi deesse inveniret & suorum negligentia antecessorum illas

distributas atque distractas fuisse reperisset, diligenter inquisita & bene cognita

veritate, Regem quam citius potuit & non pigre inde requisivit, ut Justicia se-

cundum legem sibi ﬁeret, &c.

And thus much by way of Addition to my

former Preface shall sufﬁce.

I have in this ninth Work reported certain Cases which have been adjudged

and resolved, together with the Reasons and Causes thereof, to the end the

Learned that know the Law may be conﬁrmed, such as know it not may be

instructed, the Possessions and Interests of all in general according to Right

80. [Ed.: Having heard the conclusion of this case, by many witnesses and arguments, the king approved

it and, praising it with the consent of all his princes, conﬁrmed it and ﬁrmly ordered it to be preserved

unbroken thereafter.]

81. [Ed.: In the time of the great King William, who conquered the English realm by arms, and subjected

it to his authority, it so happened that Odo, bishop of Bayeux, and the said king’s brother, arrived in

England much earlier than Archbishop Lanfranc and resided in the county of Kent with great power,

exercising considerable authority there. And because in those days there was no one in that county who

could resist a man of such strength, because of the great power that he had, he seized numerous lands and

a good many customs of the archbishopric of Canterbury for himself, and by way of usurpation gained

control of them. Not long afterwards, however, the said Lanfranc, abbot of the church of Caen, also came

to England by the king’s command to be archbishop of Canterbury, by God’s arrangement, and supreme

primate of all England. He lived there for some time, and found many of the old lands of his church to

be missing and distributed and given away by the negligence of his predecessors, and having made diligent

enquiry and careful discovery of the truth he went to the king as soon as he could and earnestly asked

that justice be done to him according to law, etc.]

Part Nine of the Reports306

strengthened and quieted, Love and Charity between Man and Man contin-

ued, unnecessary Suits, the Causes of Contention and Expence, prevented,

and the Reign of our dread Sovereign, for his Zeal of Justice, renowed and

honoured.

And it is very observable out of what root the Doubts and Questions herein

adjudged and resolved did grow: The most difﬁcult whereof do spring out of

these two Roots, either out of Statutes enacted in that supream Court of

Parliament (whereof I have spoken) or out of supposed variety of Opinions

and Rules in our Books. Out of Acts of Parliament principally in two sorts,

either when an ancient Pillar of the Common Law is taken out of it, or when

new remedies are added to it. By the ﬁrst arise dangers and difﬁculties, and

by the second the Common Law rightly understood is not bettered, but in

many Causes so fettered, that it is thereby very much weakned. Take one

Example for both; In 5 Edwardi 3. 14.

Sir Will. Herle Chief Justice of the

Court of Common Pleas, saith, That the Statute De Donis Conditionalibus

was made in the Reign of King Edward the ﬁrst, (who (saith he) was the most

sage King that ever was) and the Cause of the Statute was to salve the Heritage

in the Blood of them to whom the Gift was made; and yet that Statute shaking

a main Pillar of the Law, that made all Estates of Inheritance Fee simple, no

Wisdom could foresee such and so many mischiefs as upon those fettered

Inheritances followed; but hereof have I given a touch in the Prefaces to my

third and fourth Work; and therefore desiring that this kind of innovation

might be left, I will for this time leave it. Concerning the supposed variety

of Opinions and Rules in our Books, I trust in many Cases herein the studious

Reader shall observe (as in my former Works he hath done) that the Law truly

distinguishing

(for ubi Lex non distinguit nec nos distinguere debemus)

they

be in these Cases well and justly accorded. And I afﬁrm it constantly, That

the Law is not incertain in Abstracto but in Concreto, and that the incertainty

thereof is hominis vitium

and not professionis:

And to speak plainly there

82. Co. Lit. 19. a, 392. b. 10 Co. 38. b.

83. [Ed.: concerning conditional gifts.]

84. Cawley 132.

85. [Ed.: where the law makes no distinction, we ought not to distinguish.]

86. [Ed.: the vice of the man, . . .]

87. [Ed.: . . . the profession.]

Preface 307

be two Causes of the uncertainty thereof in Concreto, viz. praepostera lectio

and praepropera praxis,

preposterous reading, and oversoon practise.

A substantial and a compendious Report of a Case rightly adjudged doth

produce three notable effects: 1. It openeth the Understanding of the Reader

and Hearer; 2. It breaketh through difﬁculties, and 3dly, It bringeth home to

the hand of the studious, variety of pleasure and proﬁt; I say it doth set open

the Windows of the Law to let in that gladsom Light whereby the right reason

of the Rule (the Beauty of the Law) may be clearly discerned; it breaketh the

thick and hard Shell, whereby with pleasure and ease the sweetness of the

kernel may be sensibly tasted, and adorneth with variety of Fruits both pleasant

and proﬁtable, the Storehouses of those by whom they were never planted

nor warred. Whereunto (in those Cases that be tortuosi

and of great difﬁculty,

adjudged upon Demurrer or resolved in open Court) no one Man alone with

all his true and uttermost labours, nor all the actors in themselves by themselves

out of a Court of Justice, nor in Court without solemn Argument, where (I

am persuaded) Almighty God openeth and inlargeth the understanding of the

desirous of Justice and Right could ever have attained unto. For it is one

amongst others of the great honours of the Common Laws, that Cases of great

difﬁculty are never adjudged or resolved in tenebris or sub silentio suppressis

rationibus;

but in open Court, and there upon solemn and elaborate Ar-

guments, ﬁrst at the Bar by the Counsel learned of either party (and if the

Case depend in the Court of Common Pleas then by Serjeants at Law only)

and after at the Bench by the Judges, where they argue (the puisne Judge

beginning and so ascending) seriatim,

upon certain days openly and pur-

posely preﬁxed, declaring at large the authorities, reasons and causes of their

Judgments and Resolutions in every such particular Case (habet enim nescio

qd’ energiae viva vox:

) a reverent and honourable proceeding in Law, a grateful

satisfaction to the Parties, and great instruction and direction to the attentive

and studious Hearers.

In this, as in the rest of my Works, my chief care and labour hath been for

88. [Ed.: namely, preposterous reading and premature practice,]

89. [Ed.: tortuous.]

90. [Ed.: in darkness, or in silence, suppressing the reasons;]

91. [Ed.: in order,]

92. [Ed.: for the living voice has I know not what efﬁcacy:]

Part Nine of the Reports308

the advancement of truth that the Matter might be justly and faithfully related,

and (for avoiding of Obscurity and Novelty) that it might be in a legal and

Method and in the Lawyers Dialect plainly delivered, that herein no Authority

cited might be wittingly omitted, or coldly applied; no Reason or Argument

made on either side willingly impaired; no Mans Reputation directly or in-

directly impeached; no Author or Authority cited unreverently disgraced; and

that such only as (in mine Opinion) should hereafter be leading Cases for the

publick quiet might be imprinted and published. Almighty God (who hath

of his great Goodness enabled me hereunto) knoweth that I have not taken

these Labours, either for vain Glory or upon presumption of any persuasion

of Knowledge: but true it is, that I have been ever desirous to know much;

and do acknowledge my self to owe much more to my Profession than all my

true and faithful Labours can satisﬁe: And as I truly confess, that I have no

means (for I know my own wants) to quit that Debt, so I faithfully promise

never to be found unthankful or unwilling to perform what by my uttermost

endeavour shall lie in my power. My desire of the learned Reader, with old

Bracton (sometime a famous Judge of the Court of Common Pleas (as I ﬁnd

in Record) and a Writer of the Laws) is, Ut si quid superﬂuum vel perperam

positum in hoc opere invenerit, illud corrigat & emendet, vel conniventibus oculis

pertranseat, cum omnia habere in memoria & nulla peccare, divinum sit potius

quam humanum.

Vale.

William Aldred’s Case.

(1610) Michaelmas Term, 8 James I

In the Court of King’s Bench.

First Published in the Reports, volume 9, page 57b.*

Ed.: William Aldred owned the house of Hareleston in Norfolk. Next to

the hall and parlor of Aldred’s house, Thomas Benton owned a small or-

93. [Ed.: Whatever you ﬁnd has been put in this book superﬂuously or mistakenly, correct and amend

it, or pass it over with your eyes shut, for to remember everything and commit no faults is divine rather

than human.]

94. [Ed.: Fare[well].]

*[Ed.: The initial pleadings are at Trinity 7 Jac. Rot. 2802.]

William Aldred’s Case 309

chard, which he (according to Aldred) maliciously converted to a hog sty

in order to vex Aldred. Aldred sued, claiming that the foetid and unpleasant

odors of the sty interrupted his enjoyment of his land and was a nuisance.

The King’s Bench found the swine sty to be a nuisance. Aldred won. The

case is particularly important for establishing liability for environmental

nuisances, and is an early case in environmental law.

William Aldred brought an action upon the Case against Thomas Benton,

which began Trinity 7 Jacobi, Rot. 2802. That where the Plaintiff, 29 Septemb.

6 Jac. was seised of a house, and of a parcel of land in length 31 feet, and in

breadth 2 feet and a half, next to the Hall and Parlour of the Plaintiff, of his

house aforesaid in Harleston in the County of Norfolk in fee; and where the

Defendant was possessed of a small Orchard on the East part of the said parcel

of Land, praed’ Thomas malitiose machinans et intendens ipsum Willhielmum

de easuamento et proﬁcuo messuag’ et parcell’ terrae suorum praed’ impedire et

deprivare, the said 29 day of Septemb., Anno 6 Jacobi quoddam magnum lignile

in dicto horto ipsius Thomae construxit et erexit, ac illud adeo exaltavit, &c. quod

per ligne illud, &c. tam omnia fenestr. et luminaria ipsius Willihelmi aulae et

camerarum suarum, quam ostium ipsius Williehelmi aulae suae praedict. penitus

obstupat’ fuer., &c. et praed. Thomas ulterius machinans et malitiose intendens

ipsum Willihelmum multipliciter praegravare, et ipsum de toto commodo, easi-

mento et proﬁcuo totius messuagii sui praed. penitus deprivare, praed. 29 die Sept.

an. 6, supradicto quodd’ aediﬁcium pro suibus et porcis suis in horto suo praed’

tam prope aulam et conclave ipsius Willihelmi praed. erexit, ac sues et porcos suos

in aediﬁcio in horto illo posuit, et ill’ ibidem per magnum tempus custodivit, ita

quod per | foetidas et insalubres odores sordidorum praedictorum suum et porcorum

praedict’ Thomae in aulam et conclavo praed. ac alias partes praed. Messuagii

ipsius Willihelmi penetran’ et inﬂunent’ iidem Willihelmus et famili sui, ac aliae

personae in messuagio suo praed. conversantes et existen. absque periculo infectionis

in aula et conclavi proed’ ac aliis locis messuagi praedicti’ continuare seu remanere

non potuerunt: praetextu cujus idem Willihelmus totum commodum, usum, eas-

amentum, et proﬁcuum maximae partis messuagii sui praedicti per totum tempus

praed’ totaliter perdidit et amisit ad damnum ipsius Willihelmi 40. &c.

And

1. [Ed.: namely, together with all the other proﬁts, rights, beneﬁts and emoluments coming from or

in any way belonging to all and singular the said ofﬁces, with the other premises, as plainly and fully and

[58 a]

Part Nine of the Reports310

the Defendant pleaded Not guilty, and at the Assises in Norfolk he was found

guilty of both the said Nusances, and damages assessed. And now it was moved

in arrest of Judgment, That the building of the said house for hoggs was

necessary for the sustenance of man; and one ought not to be of so delicate

nosed, that he cannot endure the sent of hoggs; for Lex non favet delicatorum

votis:

But it was Resolved, That the action for the same (as this case is) was

well maintainable; for in a house four things are desired, habitatio hominis,

delectatio inhabitantis, necessitas luminis, et salubritas aeris,

and for Nusance

done to three of them an action lieth, scil. to the habitation of the house, for

that is the principal end of a house. 2. For hindrance of his light, for the old

form of action upon the Case was signiﬁcant, scil. quod Messuagium horrida

tenebritate obscuratum fuit,

therewith agree 7 Edw. 3 50b. 22 Hen. 6 14. by

Markham, 11 Hen. 4 47. and to was a Case adjudged in the King’s Bench,

Trin. 29 El. Thomas Bland brought an action upon the Case against Thomas

Moseley, and declared how that James Bland was seised in fee of an ancient

house in Netherousegate in the Parish of St. Michael in the County of the City

in as ample a manner and form as Thomas Manners, knight, etc., or any other or other before these times

occupying the aforesaid ofﬁces, or any of them, had and took them Thomas, maliciously scheming and

intending to hinder and deprive him the said William of the easement and proﬁt of the messuage and of

part of his aforesaid land, the said 29th day of September, in the sixth year (of the reign of King) James,

constructed and erected a large pile of wood (lignile) in the said garden of the selfsame Thomas, and made

it so high, etc. that by the wood, etc. not only all the windows and lights of the selfsame William of his

hall and rooms but also the selfsame William’s door of his aforesaid hall were wholly stopped up, etc.; and

the aforesaid Thomas, further scheming and maliciously intending greatly to harm the selfsame William,

and utterly to deprive him of all the beneﬁt, easement, and proﬁt of the whole of his aforesaid messuage,

on the aforesaid twenty-ninth day of September in the above-mentioned sixth year, erected a certain building

for his sows and pigs in his aforesaid garden so near to the aforesaid hall and parlour of him the said

William, and put his sows and pigs in the building in that garden and kept them there for so long a time,

that by the foetid and insalubrious odours of the muck of the aforesaid sows and pigs of the aforesaid

Thomas, penetrating and ﬂowing into the hall and parlour and other parts of the messuage of the selfsame

William, the same William and his servants, and other persons living in his aforesaid messuage, could not

continue or remain in the aforesaid hall and parlour and other places of the same messuage without danger

of infection: by virtue whereof the same William has wholly lost and parted with all the beneﬁt, use,

easement, and proﬁt of the greatest part of his aforesaid messuage, for the whole time aforesaid, to the

damage of the selfsame William of forty pounds, etc.]

2. [Ed.: The law does not favour the whims of the dainty:]

3. [Ed.: the habitation of man, the delight of the inhabitants, the necessity of light, and the whole-

someness of air,]

4. [Ed.: that the messuage was obscured with severe darkness,]

William Aldred’s Case 311

of York; and that the said James, and all those whose estate he hath in the said

house, time out of mind, &c. had and have used to have for them his Tenants,

for life, years, and at will, in the West side of the said house seven windows

or cleristeries against a piece of land containing half a Rood, in the parish

aforesaid, adjoining to the said house, which piece of land time out of mind

was without any building, until the 28th day of September, Anno 28 El., and

shewed the length and breadth of the said windows for all the time aforesaid,

by force of which windows the said James, and all those whose estate he hath

in the said house time out of mind have used to have for them and their

Tenants divers wholesome and necessary easements and commodities, by rea-

son of open Air and light, &c. And that the said James the 20th of September

Anno. 28 Eliz. demised to the Plaintiff the said house for 3 years; and that

the Defendant, maliciously intending | to deprive him of the said easements,

et obscurare Messuagium praed. horrida tenebritate, &c.

20 November Anno.

29 Eliz. had erected a new building upon the said piece of land, so near to

the said seven windows, that the said seven windows were stopped, whereby

the Plaintif lost his said easements, &c. Et maxima pars messuagii praedict’

horrida tenebritate obscurata fuit, &c.

In bar of which action the Defendant

pleaded, quod infra praed. civitatem Ebor. talis habetur; et a toto tempore cujus

contrarii memoria non existit, habebatur consuetudo, videlicet, quod si quis ha-

buerit fenestras et visum per easdem versus terram vicini sui, vicinus ille visum

illarum fenestrarum obstruere super terram illam solebat et posset, sicut melius

viderit sibi expedire.

By force of which custom he justiﬁed the stopping of

the said Windows; and upon that the Plaintiff did demur in Law, and it was

adjudged by Sir Christopher Wray, Chief Justice, and the whole Court of Kings

Bench, that the barr was insufﬁcient in Law to barr the Plaintiff of his action,

for two causes. 1. When a man hath a lawful easement, or proﬁt, by prescription

time out of mind, &c. another Custom which is also time out of mind cannot

take it away, for the one is as ancient as the other: As if one hath a way over

the land of A. to his Freehold time out of mind by prescription &c. A. cannot

5. [Ed.: and to obscure the aforesaid messuage with severe darkness, etc.]

6. [Ed.: And the greater part of the messuage would be obscured with severe darkness, etc.]

7. [Ed.: that within the aforesaid city of York there is, and from all the time whereof the memory of

man is not the contrary has been, this custom, that is to say, that if any one has windows with a view from

the same over the land of his neighbour, that neighbour may, and has been used to, obstruct the view from

those windows over his land as might seem most expedient to him.]

[58 b]

Part Nine of the Reports312

allege a prescription or custom to stop the said way, 2. It might be, that before

time of memory the owner of the said piece of land hath granted to the owner

of the said house to have the said windows, without any stopping of them,

and so the prescription might have a lawful beginning: and Wray, Chief Justice,

then said, that for stopping as well of Air as of Light, an action lieth and

damages shall be recovered for them, for both are necessary, for it is said, et

vescitur aura aetherea;

and the said words horrida tenebritate are signiﬁcant,

and imply the beneﬁt of light. But he said, That for prospect, which is a matter

only of delight, and not of necessity, no action lieth for stopping thereof; and

yet it is the great commendation of a house if it have a long and large prospect,

unde dicitur,

Laudaturque domus longos qui prospicit agros.

But he doth not give actions for such things of delight. And Solomon saith,

Ecclesiast. 11. 7. Dulce lumen est et delectabile oculis videre solem.

Et olium (ut

Plutarchus in Conv. 7. Sap. refert.) Rex Aethiopum interrogatus quid optimum?

respondebat lucem; quis enim natura duce tenebras non exhorrescit?

and if the

stopping of the wholesome Air, give cause of Action, a fortiori

an Action

upon the case lieth in the Case at Barr, for the infecting and corrupting of

the Air. And the building of a | Lime-kill is good and proﬁtable, but if it be

built so near a house, that when it burneth the smoke thereof entereth into

the house, so that none can dwell there, an action lieth for it. So that if a man

have a watercourse running in a ditch from the River to his house, for his

necessary use, If a Glover set up a Lime-pit for Calves skins, and Sheep skins,

so near the said Watercourse, that the corruption of the Lime-pit hath cor-

rupted it, for which cause his Tenants leave the said house, an action upon

the case lieth for the same, as it is adjudged in 13 Hen. 7 26b. and the same

stands both with the Rule of Law and Reason, sc. Prohibetur ne quis faciat in

suo quod nocere possit alieno: et sic utere tuo ut alienum non laedas.

See in the

8. [Ed.: and the heavenly air feeds;]

9. [Ed.: whence it is said, A house is praised when it overlooks long ﬁelds.]

10. [Ed.: Light is sweet, and it is delightful to the eyes to behold the sun.]

11. [Ed.: And a king of Ethiopia (as Plutarch recites, in Conv. 7 Sap.), being once asked what was the

best thing, answered, the light; for who is not naturally afraid of darkness?]

12. [Ed.: so much the more so (or, it follows that).]

13. [Ed.: that is, It is prohibited that anyone should do anything in his own land which might harm

someone else; and you should so use your own as not to hurt others.]

[59 a]

John Lamb’s Case 313

Book of Entries tit. Nusance 406 b. That he who hath a several piscarie in a

water shall have an action upon the Case against him who erecteth a Dyehouse,

ac ﬁmos faeditates, et alia sordida extra domum praed. decurrentia in piscariam

praed’ decurrere fecit, per quod idem proﬁcuum piscariae suae praed. totaliter

amisit, &c.

And there is another Precedent against a Dyer, &c. quod idem

Henricus in mansione sua praed. ob metum infectionis per horridum faetorem

fumi, foeditatis, et aliorum sordidorum, &c. per magnum tempus morari non

audebat.

So in the Case at Bar, forasmuch as the Declaration is, That the

Defendant maliciously intending to deprive the Plaintif of the use and proﬁt

of his house, did erect a Swine stie tam prope aulam et conclave ipsius Willielmi,

ac sues et porcos suos in aediﬁcio illo posuit, et ill’ ibid’ per magnum tempus

custodivit, ita quod faetidi et insalubres odores sordidorum praed’ suum et por-

corum praed’ Thomae in aulam, &c. penetran’ et inﬂuen’, idem Willielmus ac

famuli sui, &c. in messuag’ praedict’ conversantes existen’ absque periculo infec-

tionis in aula, &c. continuare seu remanere non potuerunt, praetextu cujus idem

Will’ totum commodum, &c. maximae partis praed’ messuag’ per totum tempus

praed’ totaliter perdidit.

To which Declaration the Defendant pleaded Not

guilty, and was found guilty of the matter in the Declaration, It was adjudged

that the Plaintif should recover.

John Lamb’s Case.

(1610) Michaelmas Term, 8 James I

In the Court of Star Chamber.

First Published in the Reports, volume 9, page 59b.

Ed.: This note case describes requirements for liability for a libel.

14. [Ed.: and caused the fetid ﬁlth and other muck to ﬂow out of the aforesaid house into the aforesaid

ﬁshery, as a result of which the (plaintiff) wholly lost the proﬁt of his aforesaid ﬁshery, etc.]

15. [Ed.: that the same Henry for a long time did not dare to remain in his aforesaid mansion house

for fear of infection by the horrid stench of the smoke, ﬁlth and other muck, etc.]

16. [Ed.: so near to the aforesaid hall and parlour of him the said William, and put his sows and pigs

in the building in that garden and kept them there for so long a time, that by the fetid and insalubrious

odours of the muck of the aforesaid sows and pigs of the aforesaid Thomas, penetrating and ﬂowing into

the hall etc., the same William and his servants etc. living in the aforesaid messuage, could not continue

or remain in the aforesaid hall, etc. without danger of infection: by virtue whereof the same William had

wholly lost all the beneﬁt, etc. of the greatest part of the aforesaid messuage for the whole time aforesaid.]

Part Nine of the Reports314

John Lamb, Proctor of the Ecclesiastical Court exhibited a Bill in the Star-

chamber against William Marche, Robert Harrison, and many others of the

Town of Northampton, and against Shuchburghe and others, for publishing

of two libels. It was Resolved, That every one who shall be convicted in the

said Case, either ought to be a contriver of the libel, or a procurer of the

contriving of it, or a malicious publisher of it, knowing it to be a Libel, for

if any readeth a Libel, the same is not any publishing of it, or if he hear it

read, it is no publication of it, for before he read or hear it, he cannot know

it to be a Libel, or if he hear, read it, and laugh at it, it is no publishing of

it; but if after he hath read or heard it, he repeats the same, or any part of it

in the hearing of others, or after that he knoweth it to be a libel, he readeth

it to others, the same is an unlawful publishing of it; or if he writes a Copy

of it, and do not publish it to others, it is no publication of the Libel; for

every one who shall be convicted ought to be a contriver, procurer, or publisher

of it, knowing it to be a Libel. But it is great evidence that he published it,

when he, knowing it to be a Libel, writeth a Copy of it; if not that afterwards

he can prove that he delivered the same to a Magistrate to examine it; for

then the subsequent Act doth explain the precedent intent. See Reader, Bract.

lib. 3. tract. de | Corona, cap.36. fo. 155. Fiat autem injuria. cum quis pugno

percussus fuerit, verberatus, vulneratus seu fustibus caesus; verum etiam cum ei

convitium dictum fuerit; vel de eo factum carmen famosum.

MacKalley’s Case.

(In the killing of the Sergeant of London.)

(1611) Easter Term, 9 James I

Before all the Judges of England.

First Published in the Reports, volume 9, page 65b.

Ed.: A jury found the following: Richard Fells, a sergeant of the sheriff of

London, had been ordered to arrest John Murray for a £500 debt. After

arresting Murray one night, Fells was set upon by John Mackalley, John

Engles, and Archibald Miller, who tried to rescue Murray. In the ﬁght,

Murray called to his friends, “Draw, draw, rogues.” MacKalley drew a rapier

1. [Ed.: A wrong is committed not only when someone is struck with a ﬁst, or beaten or wounded

with clubs, but also when he is insulted or made the subject of infamous verses.]

[60 a]

MacKalley’s Case 315

and ran Fells through, killing him. The jury, however, was unsure that this

amounted to murder. The justices in the trial were unsure whether the facts

amounted to murder or manslaughter. All of the judges of England con-

sidered the case and found that the killing of an ofﬁcer of the law executing

process is murder. Mackalley was convicted of murder and hanged. This

is an important depiction in its consideration of the requirements of in-

dictments, of arrest, and of the role of the jury as the ﬁnder of facts, even

allowing them to leave to the judges the inferences to be derived from

ﬁndings of fact. See also Semayne’s Case, p. 135.

By command from the King all the Judges of England were command to

meet together to Resolve what the Law was upon a Record (of a special verdict

found at the Sessions of Gaol delivery holden at Newgate the ﬁfth day of

December, Anno 8 Jacobi) and accordingly all the Judges of England, and

Barons of the Exchequer, in the beginning of Hilary Term last past met to-

gether, and heard Counsel learned upon the same special verdict, as well of

the prisoners, of the King; that is to say, Sergeant Harris the younger; Anthonie

Dyet, and Randall Crewe of Counsel with the Prisoners; and Yelverton, Wal-

ters, and Coventrie for the King. And the matter was very well argued by

Councel on both sides at two several days in the same term; and divers Ex-

ceptions were taken to the Indictment, and to the verdict also.

First, against the Indictment ﬁve exceptions were taken. 1. Because it ap-

peareth, That the arrest was tortious, and by consequence the killing of the

Sergeant could not be murder, but Manslaughter: And they argued that the

arrest alledged in the Indictment was tortious, because it was in the night,

that is to say, 18 diem Nov. inter horas quintam et sextam post meridiem,

which

appeareth to the Court to be in the Night, and the Night is a time of rest

and repose, and not to arrest any one by his body, for thereof would ensue

(as in hoc causa accidit)

bloodshed; for the Ofﬁcer and Minister of Justice

cannot have such assistance, nor the peace cannot be so well kept in the Night,

that is to say, in tenebris,

as in the Day, in aperta luce:

And the Prisoner

1. [Ed.: on the eighteenth day of November between the hours of ﬁve and six after mid-day,]

2. [Ed.: happened in this case.]

3. [Ed.: in the darkness,]

4. [Ed.: in the open light,]

Part Nine of the Reports316

cannot know the Ofﬁcer or Minister of Justice in the Night; nor the Prisoner

cannot so soon ﬁnd sureties for his appearance | in the Night, and thereby

avoid his imprisonment, as he may in the day time. And they cited 11 H. 7.

5. That the Lord shall not distrain for his Rent or Services in the Night. But

it was answered by the Councel with the King, and in the end Resolved by

all the Judges and Barons of the Exchequer, That the arrest in the Night is

lawful, as well at the subjects sute as at the Kings sute; for the Ofﬁcer or

Minister of Justice ought for to arrest him when he can ﬁnd him; for otherwise

perhaps he shall never arrest him, quia qui male agit, odit lucem;

and if the

Ofﬁcer do not arrest him when he ﬁndeth him, and may arrest him, the Plaintif

shall have an action upon his Case, and recover all his loss and damages; And

it is like to the Case of distress for damage feasant, for which one may distrain

in the Night; for otherwise perhaps he shall never distrain the cattel, for they

may be taken or escape away and then he cannot distrain them: But in the

Case of Rent service it is otherwise; for the Law doth intend that the Tenant

will all the day attend upon the Land to pay his Rent, but he is not compellable

to attend in the Night, Vid. 11 H. 7 5a. 10 E. 3 21 12 E. 3. Distresse 17. and no

inconvenience will follow upon it; For although he cannot see the Ofﬁcer,

yet when he heareth him say, I arrest you in the Kings name &c. he ought

for to obey him; and if the Ofﬁcer hath not a lawful warrant, he shall have

his action of false imprisonment. And as to the ﬁnding of sureties the Law

is, That he ought to remain in prison till he ﬁnds sureties, be it in the Day

time, or in the Night. But great inconvenience will follow on the other side,

if those who are indebted to others shall in the Night go at their pleasure

without danger of arrest, for then they would become Nightwalkers, and turn

the Day into Night in despight of their Creditors. And as the Ofﬁcer or

Minister of Justice may by force of a Warrant directed to him, arrest anyone

at the Kings sute either for felony or other crime in the Night, so may he do

at a subjects suit; for the King hath no more prerogative as to the time to

make an arrest, than a subject: for the arrest is to no other but to the intent

to bring the party to Justice. And it appears by the opinion of the Court in

the Kings Bench in Semaigns Case, in the Fifth Part of my Reports, That the

Sherifs may arrest in the Night, as well at the sute of the Subject, as at the

Kings sute. And in Heydons Case in the Fourth Part of my Reports it is Re-

5. [Ed.: he (who) does evil hates the light.]

[66 a]

MacKalley’s Case 317

solved, That if one killeth a Watchman in doing his Ofﬁce, it is Murder, and

yet it is done in the Night; and if an affray be made in the Night, and the

Constable, or any other, who commeth to aid him to keep the peace be killed,

the same is Murder; for when the Constable doth command them in the Kings

name to keep | the Peace, although he cannot discern or know him to be the

Constable, yet at their perils they ought to obey him.

It was also Resolved, that although in truth between ﬁve and six of the

clock in the ninth of November be part of the Night, yet the Court is not

bound ex Ofﬁcio,

to take knowledge of it, no more than in the Case of Burglary,

without these words, in nocte ejusdem diei,

or Noctanter.

2. It was objected, that Sunday is not dies juridicus,

and therefore no arrest

can be made thereon, but the same is the Sabbath, and therefore therein every

one ought to abstain from secular affairs for the better worship and service

of God in Spirit and Truth. As to that it was Answered and Resolved, that

no judicial act ought to be done on that day, but ministerial acts may be

lawfully executed on the Sunday; for otherwise peradventure they shall never

be executed; and God permitteth things of necessity to be done that day; and

Christ saith in the Gospel, Bonum est benefacere in Sabbatho.

3. Another Exception was taken, because it is said in the beginning of the

Indictment, in Curia dicti Dom. Reg in computatorio suo, scituat. in parochia

Sanctae Michaelis

in Woodstreet, London, and doth not shew in what Ward

the said Parish was, et non allocatur;

For it is holden in 7 H. 6 36b. Every

Ward in London is an Hundred in a County, and every Parish in London is

as a Town in an Hundred, and it is not necessary to set forth in what Hundred

a Town no more in what Ward a Parish is; but the same is commonly averred,

because that there are divers Parishes in London of one name, and the Ward

is added to make distinction of one Parish from another; for which cause it

was Resolved, That in the Case at Bar the Indictment was sufﬁcient, not-

withstanding the leaving out of the Ward, for it doth not appear to us that

6. [Ed.: by reason of ofﬁce,]

7. [Ed.: in the night of the same day,]

8. [Ed.: at night.]

9. [Ed.: a Law Day, (a day on which judgment may be given).]

10. [Ed.: It is good to act well on the Sabbath.]

11. [Ed.: in the court of the said lord king in his Compter situated in the parish of St Michael.]

12. [Ed.: not allowed.]

[66 b]

Part Nine of the Reports318

there is any other Parish of that name, and this Parish is particularly described,

viz. in Parochia Sancti Michael’ in Wood-street, London. And therewith

agreeth the Rule of the Book in 7 H. 6 36b. for a Bill was ruled good in Parochia

Sancti Laurentii in Judaismo,

omitting the Ward.

The fourth Exception was, because it doth not appear in what Parish the

Sherif did commanded Fells the Sergeant to arrest the Defendants; and the

same was disallowed by all the Justices; for the words of the Indictment are,

taliter in eadem Curia process. fuit, &c.

and eadem Curia fully shewed that

the Warrant was made at the same Court mentioned before; and the same

was expressly alledged to be holden in Parochia Sancti Michaelis, &c.

| 5. It was excepted against the Indictment, viz. That the precept was to

arrest the Defendant, si inventus foret infra libertates Civitatis praed’

and the

Indictment is quod in parochia S. Martini Bowyer Rowe in warda de Farringdon

infra Londinum praed’

the Sergeant arrested him, so that he hath not pursued

the precept, for the precept is infra libertates

London, and notwithstanding

that, the indictment was resolved to be good, for the said Parish and Ward

in London shall be intended to be within the liberties of London, for these

words liberties of London are more spacious than London, and include in

them the City of London itself.

And 9 Exceptions were taken to the verdict. 1. That there is material variance

betwixt the Indictment and the Verdict, for the Indictment doth suppose that

Piot Sherif of London upon a Plaint entred, made a precept to Fells, Serjeant

at Mace to arrest the said MacKalley, the Def.; & by the verdict it appeareth

that there was not any such precept made, but that by the custom of London,

after the plaint entered, any Sergeant ex ofﬁcio at the request of the Plaintiff

may arrest the Defendant absque aliquo praecepto ore tenus, vel aliter,

so that

the Indictment being special, to make this offence Murder, by Construction

of Law upon the special matter, without any forethought malice ought to be

13. [Ed.: in the parish of St Leonard in the Jewry,]

14. [Ed.: the process in the same court was such, etc.]

15. [Ed.: if (the defendant) should be found within the liberties of the aforesaid city.]

16. [Ed.: that in the parish of St. Martin Bowyer Row in the ward of Farringdon within London

aforesaid.]

17. [Ed.: within the liberties.]

18. [Ed.: without any precept, whether by word of mouth or otherwise,]

[67 a]

MacKalley’s Case 319

followed, and proved in Evidence, which is not done in this case. And because

the Jurors have not found the said special matter contained in the Indictment,

but other matter, Judgement cannot be given against the Prisoners upon this

Indictment. To which it was answered, and in the end Resolved, That there

was sufﬁcient matter in the verdict pursuant to the matter contained in the

Indictment, upon which the Court ought to give judgement of death against

the said Prisoners, notwithstanding the said variance, and that for two causes.

1. Because that the Warrant which the Sergeant had to arrest the Defendant

was but circumstance, and is not necessary to be precisely pursued in Evidence

to be found by the Jury; but it sufﬁceth if the substance of the matter be

found without any such precise regard to circumstance: and therefore, if a

man be indicted, that he with a dagger gave another a mortal wound, upon

which he died, and in evidence it is proved that he gave the wound with a

Sword, Rapier, Baston, or Bill, in that case the Defendant ought to be found

guilty, for the substance of the matter is, That the party indicted hath given

him a mortal wound, whereof he died, and | the circumstance of the manner

of the weapon is not material in case of Indictment; and yet such circumstance

ought not to be omitted, but some weapon ought to be mentioned in the

Indictment. So if A. B. and C. are indicted for killing J. S. and that A. strook

him, and that the others were present, procuring, abetting, &c. And upon

the Evidence it appeareth, that B. strook him, and that A. and C. were present,

&c. in this case the Indictment is not pursued in the circumstance; and yet

it is sufﬁcient to maintain the Indictment, for the Evidence doth agree with

the effect of the Indictment, and so the variance from the circumstance of the

Indictment is not material; for it shall be adjudged in Law the stroke of every

of them, and is as strongly the act of the others, as if they all three had holden

the weapon, &c. and had altogether strock the dead; and therewith agrees

Plow. Com. 98 a.

So if one be indicted of the murder of another upon forethought malice,

and he is found guilty of Manslaughter, he shall have judgment upon this

verdict, for the killing is the substance, and the pretenced malice the manner

of it; and when the matter is found, Judgement shall be given thereupon,

although the manner be not precisely pursued; and therewith agreeth Plow.

Com. 101. where it is said, when the substance of the act and the manner of

the act, are put in issue together, the Jury ﬁnd the substance and not the

manner, Judgement shall be given for the substance. And I moved all the

Judges and Barons, if in this case of killing of a Minister of Justice in the

[67 b]

Part Nine of the Reports320

execution of his ofﬁce, the Indictment might have been general, sc. that the

prisoners felonice, voluntarie, et ex malitia, sua proecogitata &c. percusser’, &c.

without alleging any special matter; and I conceived that it might well be, for

the Evidence would well maintain the Indictment, for as much as in this case

the Law doth imply forethought malice. As if a Theef, who offereth to rob

a true man, kill him in resisting the thief, the same is murder of forethought

malice; Or if one kill another without provocation, and without any fore-

thought malice, which can be proved, the Law will adjudge the same murder,

and implieth malice; for by the Law of God every one ought to be in love

and charity with all men, and therefore when he killeth another without prov-

ocation, the Law implieth malice: and in both these cases they may be indicted

generally that they killed of forethought malice, for malice implied by Law,

given in Evidence, is sufﬁcient to maintain the general Indictment. So in the

case at barr; And in this case of a Sergeant, the Indictment might have been

generall, That he feloniously and of his forethought malice killed the said

Fells, and the special matter might well have been given in Evidence; | quod

fuit concessum

by all the Judges, and Barons of the Exchequer. The second

reason was, because it is expressly alleged in the Indictment, That the said

John Mackalley, &c. eundem Richardum Fells, &c. felonice, voluntarie, et ex

malitia sua praecogita, &c. percussit et inforavit, &c.

so that above the special

matter which implieth malice, it is expressly contained in the Indictment, that

he feloniously and ex malitia proecogitata killed the said Fells, and then al-

though the special matter given in Evidence had varied in substance from the

special matter contained in the Indictment, yet for as much as it was resolved

that the Indictment in this case might be general, for this cause the Evidence,

although it doth not agree with the special matter, yet it proveth, that the

prisoners killed the said Fells of their forethought malice; and so well main-

taineth the Indictment. And that in the end was the opinion of all the Judges

and Barons of the Exchequer.

2. Exception was taken to the verdict, That the Custom found by the Jury,

that after the plaint entred, the Defendant might be arrested by his body, was

19. [Ed.: feloniously, wilfully, and of their malice aforethought, etc., struck, etc.]

20. [Ed.: which was granted.]

21. [Ed.: feloniously, wilfully, and of his malice aforethought, etc. struck and stabbed, etc., the same

Richard Fells, etc.]

[68 a]

MacKalley’s Case 321

against Law, because the Defendant ought to be ﬁrst summoned before that

the warrant in nature of a Capias

can issue forth, for his body shall not be

arrested if he hath sufﬁcient, et non allocatur;

for it appeareth by the book

in 21 E. 4 66b. That by common experience daily used, that after a plaint

entred, by the custom of London, (which is established and conﬁrmed by

Parliament) the Defendant may be arrested. And in this case three points were

Resolved by all the Judges and Barons of the Exchequer. 1. that although the

process be apparently erronious, that yet if the Minister of Justice in the ex-

ecution thereof be killed, the same is murder. For the Minister is not bound

to dispute the authority of the Court, which awardeth the process, but his

ofﬁce is to execute the process: and therefore, if a Capias in an action of Debt

be awarded against a Baron, or other Peer of the Realm, which is erronious

(because their bodie by the Law is privileged in such cases) yet if the Ofﬁcer

be killed in execution thereof, it is murder. So if a Capias be awarded where

a Distress ought to issue, and in execution thereof the Ofﬁcer is killed, it is

Murder, for as the Sheriff, &c. when he is charged with an Escape shall not

take advantage of any Error in the proceeding so the Defendant when he

killeth the Sheriff, &c. shall not take advantage of Error in the proceeding.

2. It was Resolved, That if any Magistrate or Minister of Justice, in execution

of their ofﬁce, or in keeping of the peace according to the duty of his ofﬁce

be killed, it is murder, for their contempt and disobedience to the King, and

to the Law, for it is contra potestatem Regis et legis:

and therefore, if a Sheriff,

Justice of Peace, Chief Constable, Petit | Constable, Watchman, or any of the

Kings, Ministers, or any who comes in their aid be killed in doing of their

ofﬁce, it is murder for the cause aforesaid: for when the Ofﬁcer or Kings

Minister by process of Law (be it erroneous or not) arresteth one in the Kings

name, or requireth the breakers of the peace to keep the peace in the Kings

name, and they notwithstanding disobey the arrest or Commandement in the

Kings name, and kill the ofﬁcer, or the Kings Minister, reason requireth that

this killing and slaying shall be an offence in a higher nature than any offence

of this nature; and that the same is voluntary, felonious, and murder of fore-

thought malice. And a Watchman by the Law may arrest a Night-walker

22. [Ed.: Writ of arrest.]

23. [Ed.: and not allowed;]

24. [Ed.: against the power of the king and the law:]

[68 b]

Part Nine of the Reports322

4 Hen. 7 2. and if a Watchman arresteth such a one, and he killeth him, the

same is murder. Vide Heydons case in the Fourth Part of my Reports. And it

is true, That the life of a man is much favoured in Law, but the life of the

Law it self (which protecteth all in peace and safety) ought to be more favoured,

and the execution of the process of Law and of the ofﬁces of Conservators of

the peace, is the Soul and life of the Law, and the means by which Justice is

administered, and the peace of the Realm kept. Vide 2 R. 3 21. If the Principal

be erroneously attainted, the Accessory shall be put to answer, and shall not

take beneﬁt for the saving of his life of the erroneous proceeding against the

Principal. 3. It was Resolved, That the Ofﬁcer or Minister of the Law in the

Execution of his ofﬁce, if he be resisted or assaulted, is not bound to ﬂye to

the wall &c. (as other Subjects are) for Legis minister non tenetur in executione

Ofﬁcii fugere, seu retrocedere.

3. It was Objected, That the Defendant ought not have been arrested before

that the plaint was entered of Record in the Court before the Sheriff, for this

same is in truth the Court of Record where the Declaration and pleading shall

be. To that it was answered and Resolved by all, That after the plaint entered

in the Porters book, and before the entry thereof in the Court before the

Sheriff, the Defendant may be arrested by the Custom of London; and there-

with agreeth the book in 21 E. 4 66. in the point. Vide 9 E. 4 48b.

4. It was Objected, That the said Arrest found by the verdict was not lawful

for the Sergeant in this case ought to have when he arrested him, shewed at

whose sute, out of which Court, and for what cause he made the arrest, and

in what Court the same is returnable, to the intent, that if it be for any ex-

ecution, he might pay the money, and free his body, and if it be upon mean

process either to agree with the party to put in bayl according to the Law, and

to know when he shall appear, as it is Resolved in the Countess of Rutland’s |

Case, in the sixth part of my Reports. But in the Case at barr the Sergeant

said nothing but I arrest you in the Kings name, at the sute of Mr. Radford,

and so the arrest not lawfull, and by consequence the offence is not murder.

To that it was Answered and Resolved, That it is true that it is holden in the

Countess of Rutland’s case, That the Sheriff, or Serjeant ought upon the arrest

shew at whose sute, &c. But the same is to be intended when the party arrested

submitteth himself to the arrest, and not when the party (as in this case Murray

25. [Ed.: A minister of the law, in the execution of his ofﬁce, is not expected to run away or draw back.]

[69 a]

MacKalley’s Case 323

did) maketh resistance and interrupteth him, and before he could speak all

his words, he was by them mortally wounded and murdred, in which case,

the prisoners shall not take advantage of their own wrong. It was also Resolved,

That if one knoweth that the Sheriff; &c. hath process to arrest him, and the

Sheriff coming to arrest him, the Defendant to prevent the Sheriff to arrest

him, kill him with a gun, or any other engine, or weapon, before any arrest

made, the same is murder: a fortiori,

in the case at bar when he knew by

the said words, that the Sergeant came to arrest him.

5. Exception was taken, because it was not found by the Verdict, That the

said Mackalley felonice percussit, &c. but percussit only, et quod iidem Johann’

Murray, et Johannes English fuerunt praesentes, auxiliantes, &c.

and doth not

say, felonice; et non allocatur,

for the ofﬁce of the Jury is to shew the truth

of the fact, and to leave the judgement of the Law to the Court; but they have

well concluded, And if super tota materia’ praed. videbitur Justic. et Cur. hic,

quod praed interfectio dic. Rich. Felles sit murdrum, tunc Jurat. praed. dic. super

Sacramentum suum quod praed. Johannes Murray, Johannes Mackalley; et Jo-

hannes English sunt culpabiles, et quilibet eorum est culpabilis de murdro praed.

Rich. Felles modo et forma prout. per Indictamentum praed. supponitur, &c.

And because the Judges and the Court hath resolved upon the special matter,

that it is murder, the Jury have found him guilty of murder contained in the

Indictment.

6. It was Objected, That the Sergeant at the time, nor before he arrested

shewed the prisoner his Mace; for thereby he is known to be the Minister of

the Law, and from thence he hath his name, scil. serviens ad clavam; Et non

allocatur for two causes. 1. because the Jury have found, That he was serviens

ad clavam dicti Vicecomitis, et juratus, et cognitus, et minister Cur.

And a Bayliff

sworn and known needeth not (although the party demand it) shew | his

warrant, nor any other special Bailif is not bound to shew his warrant without

26. [Ed.: so much the more so (or, it follows that).]

27. [Ed.: feloniously struck (but) struck (only) and that the same John Murray and John English were

present, aiding, etc.]

28. [Ed.: feloniously and (the objection is) not allowed.]

29. [Ed.: if upon the whole matter aforesaid it shall appear to the justices and the court here that the

killing of the said Richard Fells is murder, then the aforesaid jurors say upon their oath that the aforesaid

John Murray, John Mackalley and John English are guilty, and each of them is guilty, of the murder of

the aforesaid Richard Fells in manner and form as is supposed by the aforesaid indictment, etc.]

30. [Ed.: the said sheriff ’s sergeant-at-mace sworn and known, and a minister of the court.]

[69 b]

Part Nine of the Reports324

demanding of it, 8 E. 4 14. 14 H. 7 9b. 21 H. 7 23. and where the books speak

of a known Baylif, it is not requisite that he be known to the party who is to

be arrested, but if he be commonly known it is sufﬁceth. 2. If notice were

requisite, he gave sufﬁcient notice when he said, I arrest you in the Kings

name &c. and the party at his peril ought to obey him; and if he hath no

lawfull warrant, he may have his action of false imprisonment. So that in this

case without Question the Sergeant needeth not to shew his Mace; and if they

shall be driven to shew their Mace, it should be a warning for the party arrested

to ﬂye.

7. Another Exception was taken to the Verdict, because the Custom which

gave to the Sergeant warrant to arrest, was not pursued; for the custom is,

Quod aliqua persona existens Serviens ad clavam ad requisitionem partis hujus-

modi querelam sic levantis, &c. usa fuit arrestare,

which ought to be taken

that the pleint ought to be entered before the request; but afterwards it is

found that the request was before the pleint, and so the Custom not pursued;

et non allocatur. For by the Custom it is not proved, but that the request may

be as well before as after the pleint entered; and so is the Common usage and

experience.

8. It was Objected, That the verdict was repugnant in itself, for ﬁrst they

found, that the pleint was entered de Recordo in Rot. Cur. Computator, in his

verbis, Die Sabbathi 17 die Novemb.

and afterwards they found, quod intratio

praed. in Rot. Cur. praed. facta fuit die Lunae 19 die November &c.

And the

jury cannot ﬁnd any thing against the Record itself. Vide 11 H. 6 42. 9 H. 6

37. 28 Ass. 34. 47 E. 3 19. 11 H. 4 26. 9 H. 7 3 13 H. 7 14. 33 E. 3. Judgment 255.

Dyer 32 Eliz. 147, &c. And all that was afﬁrmed for good Law. But that maketh

the Case stronger against the Prisoners, for now the Judges ought to judge

upon a pleint entered of Record in Cur’ Computator.

the Saturday the sev-

enteenth of Novemb. which was before the arrest.

9. Exception was taken to the Verdict, that the entry of the pleint was

31. [Ed.: that any person being a sergeant-at-mace, thus raising a plaint at the request of such party,

has been accustomed to arrest,]

32. [Ed.: of record in the court-rolls of the Compter in these words, on Saturday the seventeenth day

of November.]

33. [Ed.: that the aforesaid entry in the aforesaid court-rolls was made on Monday the nineteenth day

of November, etc.]

34. [Ed.: in the court of the Compter.]

MacKalley’s Case 325

without form, and so short and obscure, quod opus est interprete; et non al-

locatur.

For it was found that it was according to the Custom of London;

which is but a Remembrance to draw the Declaration at length in the Court

of Pleas, which notwithstanding is by Custom sufﬁcient to have the Defendant

arrested. And afterwards at the Sessions [of Newgate held] the ﬁfth day of

May after this Term, the two Chief Justices openly declared the Resolution

of all | the Judges and Barons of the Exchequer, to the great satisfaction and

contentment of all there present. And accordingly judgment of death was given

against the three Prisoners by the Recorder of London, in the presence of the

said two Chief Justices. And the said Mackalley was executed with other Pris-

oners at Tyborn.

35. [Ed.: it is a labour to interpret it; and (this point was) not allowed.]

[70 a]

Part Ten of the Reports

The Tenth Part of Coke’s Reports was published in 1614. It was originally

entitled La dixme part des Reports de Sr. Edw. Coke chivalier, chiefe Justice

Dengleteere des plees deste tenus devant le roy mesme assignee, & del Counseil

prive d’Estat: des divers resolutions & Jugements donez sur solennes arguments &

avec grand deliberation & conference des tresreverend Juges & sages de la ley, de

cases en ley queux ne fueront unques resolvs ou adjuges par devant: et les raisons

& causes des dits resolutions & Jugements. Publie en la unziesme an de treshaut

et tresillustre Jaqves roy Dengleterre, France, & Ireland, & de escosse le 47., le

fountain de tout Pietie & Justice, & la vie de la ley. In English, The Tenth Part

of the Reports of Sir Edward Coke, Knight, Lord Chief Justice of England, of the

Pleas assigned to be held before the king Himself, and of the Privy Council of

State, of divers Resolutions and Judgments given upon solemn Arguments, and

with great deliberation and Conference of the reverend Judges and Sages of the

Law, of Cases in law which were never Resolved or Adjudged Before: and the

Reasons and Causes thereof. Published in the Eleventh year of the most high and

Most Illustrious James, King of England, France, and Ireland, and of Scotland

the 47., the Fountain of all Justice, and the life of the Law. This part covers a

wide range of issues, with a number of cases dealing with a corporation’spowers

and liabilities; the power of particular courts; as well as more issues dealing

with estates, leases, and inheritance.

Epigrams from the Title Page:

Deo duce,

e⁄urhka.

1. [Ed.: God, the leader, Eureka.]

Preface 327

Lex tibi quod justum est, Judicis ore, refert.

Jerom. Justitia non novit Patrem, Matrem, neque Fratrem; personam

non accepit, sed Deum imitatur.

Westm. 2. cap. 39. Ad Ofﬁcium Justiciariorum spectat, unicuique coram

eis placitanti Jusititiam exhibere.

(Preface)

Deo, Patriae, Tibi.

At my times of Leisure, after my Publick Services (chearfully taking Industry,

mine old Acquaintance, for my Comfort, and aiming at the Good of my dear

Country for my comfort) and beginning with this continual and fervent

Prayer, The glorious Majesty of the Lord our God be upon us; oh! prosper thou

the Works of our hands upon us, Oh! prosper thou our handy works;

I have, by

the most gracious direction and assistance of the Almighty, brought forth and

Published this Tenth Work to the view of the Learned and Benevolent Reader.

This part containeth a true and just Report of certain Judgments and Res-

olutions given in his Majesty’s principal Courts of Justice, upon great and

mature deliberation, and in Cases of as great Importance and Consequence

as in any of my former Commentaries, which I have taken upon me and

ﬁnished (though it hath been more than difﬁcult to me) to avoid that, the

which venerable Verity doth blush at for fear, that is, That she which is the

Foundation of Justice should not be hidden and unknown; Veritas abscondi

erubescit; nihil enim magis metuit quam non proferri in publicum, vult se in luce

collocari; & quis illam occulat occultetue, quam omnium oculis expositam esse est

aequissimum.

Neither is she pleased, when once she is found out and revealed

2. [Ed.: The law repays you what is just, by the mouth of the judge.]

3. [Ed.: St. Jerome: Justice did not know a father, mother, or brother, and did not take on a personality;

but it imitates God.]

4. [Ed.: It belongs to the ofﬁce of the justices to do justice to everyone pleading before them.]

5. [Ed.: To God, to the Country, to you.]

6. [Ed.: Psal. 90. vers. 17.]

7. [Ed.: Truth blushes to be hidden, and therefore she fears nothing more than not being related in

public, and wants to be placed in the light; and if someone hides or conceals her, it is most equitable to

expose her to the eyes of all men.]

Part Ten of the Reports328

to be called into argument and question’d again, as if she were not in Verity

indeed; and therefore the Rule is, Eatenus ratiocinandum est donec Veritas in-

veniatur; ubi inventa est Veritas, ibi ﬁgendum Judicium:

Nay, Sometimes Truth

is lost by too much altercation, nimia altercatione veritas amittitur.

She takes

small delight with varnish of Words or garnish of Flowers; for simplex est sermo,

Veritas,

a´ plo˜c oÿlo´goc th˜c u◊lhjeı´ac e⁄fu,

for her place being between the

Heart and the Head doth participate of them both, of the Head for Judgment,

and of the Heart for Simplicity. Now whether it be not necessary that the

true and just Reasons and Causes of these Judgments and Resolutions, which

are not expressed in any Record, for the advancement of Truth and the pre-

venting of Error, in matters of so great Importance and consequence should

be plainly and faithfully published to all Posterity, I leave to the Censure of

the Learned and Judicious Reader.

I. I have Reported in the ﬁrst place (though it be not ﬁrst in time) the Case

of the Hospital of King James, founded by Tho. Sutton Esq; for that in mine

Opinion it doth merit to have the Precedency for two Causes. I. For that it

was an Exchequer Chamber Case, where, by the Verdict of the Grand Jury

of all the Judges of England, it was for the Hospital found Billa vera.

2. For

that the Foundation of this Hospital is Opus sine exemplo.

The imitation of

things that be evil doth for the most part exceed the Example, but the imitation

of good things doth most commonly come far short of the President: But this

Work of Charity hath exceeded any Foundation that ever was in the Christian

World, nay the Eye of Time it self did never see the like.

For, the ﬁrst Gift by Sutton of Lordships, Manors, Lands and Tenements

to continue for ever for the Maintenance hereof, doth amount to the clear

yearly value of three thousand ﬁve hundred pound, or near thereabouts, and

within these few years will be encreased to about the yearly value of ﬁve thou-

sand pounds. Probatio charitatis exhibitio operis.

And besides all this, Sutton

left to descend to the Plaintiff (a Man of mean quality) the Manor of Tarbock

in the County of Lancaster, consisting of a fair ancient House, two Parks and

8. [Ed.: Only to argue until the truth is found, and when the truth is found then to give judgment.]

9. [Ed.: truth is lost by too much altercation.]

10. [Ed.: truth is (in) simple speech.]

11. [Ed.: A true bill, or an indictment or other presentment, asserted to by a Grand Jury.]

12. [Ed.: a work without precedent.]

13. [Ed.: the display [or maintenance] of this work is proof of charity.]

Le Case de

Sutton’s

Hospital.

The yearly

value of

the posses-

sions ﬁrst

given.

Preface 329

large Demesns, plentifully stored with Timber, of the yearly value of 300 l.

and 50 l. by the year, of Rent of Assise, together with the Rectory of

worth 100 l. per Annum within the same County.

The large Revenues of this famous Hospital are to be imployed principally

for four special intents and purposes. I. For the Relief of such worthy and

well esteemed Captains, Commanders and Soldiers, as be unmarried; and have

adventured their Lives in the Wars, for the Service of the Realm, and are fallen

into poverty and impotency. 2. For redeeming of poor Captives, especially

such as are under the miserable Thraldom of Inﬁdels, and constantly keep

their Faith and the profession of true Religion. 3. For the erection of a free

School and maintenance of a Learned School-Master and Usher for training

up of poor Children in good Literature and vertuous Education, and for avoid-

ing of Idleness, the Mother of all Vice and Wickedness. 4. Within this Hospital

there shall be for ever maintained a grave and learned Divine for the Instruction

of all within this Hospital, by Preaching of Gods Holy Word, for the due

celebration of Divine Service, and the Holy Sacraments, and Catechising of

the Youth in the Principles of true Religion; for the accomplishment and

maintenance of which and other godly and charitable Uses, the said Founder

hath left also a very great and large Stock of Mony to his Executors, Richard

Sutton Esq; and John Law Gent. two faithful, constant, and industrious per-

sons.

This Work of Piety and Charity is founded in the spacious and specious

House called the Charter-House, in the Parish of St. Sepulchre, in the County

of Middlesex, having fair Orchards and Gardens, and containing twenty Acres

within the precinct thereof, so as a Man may say of it, that it is tanquam Orbis

in Urbe;

a place (as it appeareth by Record and History) ordained of God

for Pious and Charitable Uses. For Sir Walter Many of Henalt (who was created

by King Edward the third Knight of the Garter, for his Service which with

singular commendation he performed in the French Wars) when the pestilence

so reigned in London, that the Church-yards were not sufﬁcient to bury the

dead Bodies, especially of the Poor, purchased the place where now this famous

Hospital is erected, and caused the same to be consecrated for the burial of

poor Christians (which, whiles they lived were the Temples of the Holy Ghost)

And the Record telleth you that Anno Domini 1349. & Anno Regni Regis E.3.23.

14. [Ed.: as a world within a world;]

To what

intents and

purposes

the Reve-

nues shall

be imploy-

ed.

Part Ten of the Reports330

Regnante magna Pestilentia consecratum fuit hoc Caemitarium, &c. in quo, &

infra septa ejusdem sepulta fuerunt mortuorum corpora plusquam quinquaginta

millia.

But after the Plague by the goodness of the Almighty ceased, the

same Sir Walter Many, in the year of our Lord 1371. and in the forty ﬁth year

of the Reign of King Edward the third founded the Carthusian Monks there,

who by corruption of speech were vulgarly called the Monks of the Charter-

house. So as the Soyl which of ancient Time was given by Sir Walter Many,

a Knight and a Soldier, for the Sepulcher of poor Men when they were dead,

is now by Thomas Sutton an Esquire, and a Soldier, converted and consecrated

to the Sustenance of the Poor and Impotent whiles they live. And therefore

a Man may truly apply to this place the saying of the Royal Prophet, “Thou

Lord of thy goodness best prepared it for the Poor.”

And this Case was

Adjudged with the great Applause of all that heard it, or of it, and principally

for four causes. 1. For the honour of our Religion, that hath produced such

a Work of Piety and Charity, as never was in the Christian World for the ﬁrst

Foundation. 2. For the glory of the Kings Majesty, to whom ex congruo et

condigno

it is dedicated and beareth his Name. 3. For the increase of Piety

and Charity, ne homines deterrerentur a piis & bonis operibus:

And, lastly, ut

obstruatur os iniqua loquentium.

And I dare afﬁrm it, for the honour of our

Religion, that more of such good Works of Piety and Charity have been

founded within this Realm since the beginning of the Reign of our late Queen

Elizabeth of ever blessed Memory, during the glorious Sunshine of the Gospel,

than in many Ages before. And it hath been observed, That (by the blessing

of Almighty God) this Kingdom of England, for Piety, Proﬁt and Pleasure,

viz. 1. For this and such other Works of Piety. 2. For the Crowns Inheritances

of Honors, Manors, Lands, &c. and certainty of yearly Proﬁt. And Lastly, for

Forests, Chases, Parks, and other places of pleasure, hath exceeded the greatest

Monarchy in the Christian World.

15. [Ed.: In the year of our Lord 1349 and in the twenty-third year of King Edward III, while the great

plague reigned, this cemetery was consecrated, etc., in which and within the bounds whereof were buried

the bodies of more than ﬁfty thousand dead.]

16. Psal. 68.

17. [Ed.: out of suitability and worthiness.]

18. [Ed.: that men should not be deterred from pious and good works.]

19. [Ed.: that the mouth which speaks iniquity should be stopped.]

Preface 331

II. Then have I published in Mary Portingtons Case, for the general good

both of Prince and Country, the honourable Funeral of fond and new-found

Perpetuities, a monstrous Brood, carved out of meer Invention, and never

known to the ancient Sages of the Law; I say monstrous, for that the Naturalist

saith, Quod monstra generantur propter corruptionem alicujus principii.

And

yet I say honourable, for that these Vermin have crept into many honourable

Families. At whose solemn Funeral I was present, and accompanied the dead

to the Grave of Oblivion, but mourned not, for that the Commonwealth

rejoyced, that fettered Freeholds and Inheritances were set at liberty, and many

and manifold Inconveniences to the Head and all the Members of the Com-

monwealth thereby avoided.

III. Jenning’s Case vouched in Mary Portington’s Case and doth concern the

common Assurance of the Realm.

IV. And next after cometh Lampet’s Case, where Perpetuities of Leases for

many thousand years, are by consequence overthrown.

V. The Case of the University of Oxford (a Famous Seminary of the Church

and Commonwealth) tendeth to the advancement of Gods true Religion, and

in some degree for the better maintenance of a Learned and ReligiousMinistry,

out of both of the Universities of Cambridge and Oxford.

VI. The Bishop of Salisbury’s Case against both the diminution of the Pos-

sessions and yearly Revenues of the Archbishops and Bishops of the Realm,

and the prejudice of their Successors.

VII. Whistler’s Case, containing divers material Points for the better con-

struction of Letters Patents of Inheritance in divers Points commonlyhapning.

VIII. The Case of the Church-wardens of the Parish of St. Saviours, wherein

Letters Patents of Leases are well expounded, for the quieting of the Possession

of many of the Kings Farmours, and by consequence of the Inheritance and

Estates of many others.

IX. The Case of the Court of the Marshalsea, wherein the Original Insti-

tution and Jurisdiction of that Court is clearly manifested. And albeit the Law

was well known before in this Case, both by our Book Cases and Records in

all succession of Ages: yet as in great Rivers, the courses, windings, ﬁllings in,

and out-lets are by experience vulgarly known, whereas the very Fountain and

Head it self lie many times hidden and secret, so in this very Case, the Capacity,

20. [Ed.: that monsters are begotten on account of the corruption of some principle.]

Mary

Portington’s

Case.

Jenning’s

Case.

Lampet’s

Case.

Case of the

University

of Oxford.

Bishop of

Salisbury’s

Case.

Whistler’s

Case.

Wardens

of St.

Saviours.

Case of the

Court of

Marshlesa.

Part Ten of the Reports332

Process and Priviledge of this Court was often resolved in our Books and Years

of Terms, and the Jurisdiction commonly known, and yet the true original

Institution and Fountain it self lay somewhat deep and obscure, until it was

wrought out by Antiquity, which hath so manifested the true sense of the

ancient. Acts of Parliament, and the reason of our Books concerning the origi-

nal and true Jurisdiction of this Court, as the very opposites, being by venerable

Antiquity inlightened, are by Reason convinced, and by Authority satisﬁed;

and therefore they are worthy of reprehension which contemn or neglect the

study of Antiquity (which is ever accompanied with dignity) as a withered

and back-looking curiosity: multa ignoramus quae non laterent si veterum lectio

fuit nobis familiaris:

21,22

And as the Aluminor spoken of in Law, giveth light

and lustre to the letter, or ﬁgure to the coloured; so Antiquity doth give light

with great grace and ornament, both for the understanding and meaning of

the Letter of ancient Acts of Parliament, and of our Book Cases and Authorities

in Law. I wish the like were done for all his Majesties Courts of Justice, a

matter to them that have orderly read and well observed our Books, and Au-

thorities of Law, of greater labour than difﬁculty; and yet would the Work

greatly tend to the Honour of the Law, and the preventing of many Questions,

Suits, and unnecessary Charges and Delays.

X. Leonard Lovie’s Case is principally grounded upon the Statutes of 32 H.

8. cap. 1. and 34 Hen. 8. cap. 5. of Wills: which Statutes might seem to be

made ad extorquenda juris-prudentum ingenia,

so many and such intricate

and knotty Questions have grown out of those Roots, and yet adding this last

Case to the former Cases Reported by me for Exposition of those Statutes,

to Butler and Bakers, in the third Part of my Reports, fo. 27. Sir George Cursons

Case in the sixth Part, fo. 75. Sir Richard Pexals Case in the eightth Part 83.

Mights Case ibidem 163. Vigil Parkers ibidem 173, &c. I am perswaded, that if

not all, yet the principal scruples and doubts upon those Statutes, are for the

general quiet of the whole Realm cleared and resolved. And yet Men of advised

and setled Judgments will in their perfect Health provide for their Wives and

Children, and by sound advice of Learned Counsel, settle their Estates by

21. [Ed.: we are unaware of many things which would not be hidden if we were more familiar with

reading of the past:]

22. 1 R. 3.c.9.

23. [Ed.: to twist the ingenuity of those learned in the law,]

Leonard

Lovie’s

Case.

Preface 333

Conveyance in their Life-time, which may, if they will, be revocable at their

pleasure, and not to leave it to stand wholly upon their last Will, which many

times is made when they lye on their Death-Beds (and few Men pinched with

the Messengers of Death, have a disposing Memory) sometimes in hast, and

commonly by slender Advice, and is subject to so many Questions upon con-

cealed Tenures in Capite,

and other Tenures by Knights Service (in this Eagle-

Eyed World) former Conveyances, and other matters of fact, as in effect they

do for want of due information and instruction, superare jurisprudentum

artem.

And it is some blemish or touch to a Man well esteemed for his wisdom

and discretion all his Life; to leave a troubled Estate behind him, amongst his

Wife, Children or Kindred after his death. A competent Estate to Wife, Chil-

dren or Kindred in certainty and quiet, is far better than a greater, accompanied

with Questions and Troubles. But hereof I have given also a light touch in

the end of Butler and Bakers Case before mentioned; and therefore having

given this Admonition, I will here pass over to the next Case.

XI. Doctor Leiﬁeld’s Case, wherein the Reason of Law is opened, wherefore

Charters and Deeds pleaded, ought to be shewed forth in Court, and a Caveat

given how dangerous it is in Evidence to a Jury to prove Deeds and Writings

by Witnesses without shewing forth; for by that means Deeds that be razed,

interlined, or otherwise adulterated, or utterly insufﬁcient for want of legal

Words, or revocable and void against Fermors and Purchasers, have by con-

cealing and proving the effect of them by disposition of unlearned Men, for

want of good direction passed for good and authentical: And afterwards the

matter coming in question again, and the Court directing upon examination

of the Case, that the Deed ought to be shewed, upon sight thereof the in-

sufﬁciency appeared, and to the Right prevailed; which I have known both

in the Court of Common Pleas, amongst others, Mich. 5 Regis Jacobi, between

Small and Blackledge, and in the Court of Starr-Chamber in the Case between

Green and Eyer, and sometime in my Circuit since I was called to be a Judge.

XII. Edward Seymor’s Case, concerning Warranties, a cunning kind of

Learning (I assure you) and very necessary for the Purchasor: For it armeth

him not only with a Sword by Voucher to get the Victory of Recompence by

24. [Ed.: (in) chief, (a freehold held directly from the crown).]

25. [Ed.: transcend the art of jurisprudence.]

Dr. Lei-

ﬁeld’s Case.

Seymor’s

Case.

Part Ten of the Reports334

Recovery in Value, but with a Shield to defend a Mans Freehold and Inher-

itance by way of Rebutter;

which Title of the Law is in mine Opinion ex-

cellently curious, and curiously excellent. And yet when you have read this

Case, you will concur with me, that it was more weighty than difﬁcult.

XIII. Then cometh in Beaufage’s Case, as well for the Safety of Sheriffs and

their Ofﬁcers and Ministers, as for avoiding of Extortion Crimen Expilationis

which in Holy Writ, in that Imprecation against Gods Enemies, is called a

cosening Sin, Let the Extortioner consume that he hath, and let the Stranger spoil

his Labour,

Wherein you shall ﬁnd the Statute of 23 Hen. 6. c. 10. made for

avoiding of Extortion, Perjury and Oppressing, which are for the most part

linked together, very well and justaly expounded.

XIV. Next followeth Denbawd’s Case, for the just and due granting of Tales

de Circumstantibus

at the Assises for the better expedition of Trials; wherein

as well the Sheriffs and their Ministers, as the Parties, their Attornies and

followers are to be warned, that by no Practice or Confederacy, directly or

indirectly, they procure not partial and affected Freeholders to stand in View,

or by any shift to be packed on the Tales, whereby Truth and Justice may be

subverted, and the necessary Act of 35 Hen. 8. c. 6. sinisterly abused, for that

is an high Offence, and to be punished by a grievous Fine, Imprisonment and

other Exemplary Punishment.

XV, XX. Loﬁeld and Clun’s Case, touching Reservation of Rents upon Leases

for years, &c, and how the same shall be conﬁrned, necessary to be known

of all Men, because in effect it concerneth all.

XVI. Then followeth Arthur Legate’s Case, against the robbing of Church

and Common-Wealth, of the Crown and of the Country, by colour of pestilent

Patents of theevish Concealments.

XVII, XVIII. After that Pilfold and Cheyney’s Case, concerning the true and

legal manner of the assessing and enquiring of damages, &c. a necessary kind

of Learning, for that many Errors, the Causes of Expence and Delay have

been therein often committed.

27. [Ed.: the crime of plunder.]

28. [Ed.: A quotation from Psal. 109. vers. 10.]

29. [Ed.: Tales of so many of those standing by; a tale being a group of men summoned by the Court

to ﬁll an under-staffed venire.]

Beaufage’s

Case.

Denbawd’s

Case.

Loﬁeld ver-

sus Clun.

Legate’s

Case.

Pilfold ver-

sus Chey-

ney.

26. [Ed.: An answer to defend against a claim to possess land.]

Preface 335

XIX. Next cometh the Case of the Mayor and Burgesses of King’s Linn in

the County of Norfolk, wherein is well discussed what shall be deemed in Law

the true name of the Corporation in substance, to the end that Bonds, Cov-

enants, Leases, Grants or Conveyances be not in respect of too much Niceness

and Curiosity therein against all Honesty and just Dealing, impeached and

overthrown. And to say the truth, I ﬁnd not in any of our Books from the

beginning of the Reign of Edw. 3. until the Reign of Edw. 6. that any Bond,

Lease, Grant or Conveyance have been overthrown by Judgment, in respect

of the misnaming of the Corporation, but after a Window was once opened,

it is a wonder to consider what light hath been taken by Corporations both

Spiritual and Temporal, by Questions and Suits in Law, to avoid their own

Leases, Grants and Conveyances, to the hindrance of Multitudes, and undoing

of many, under colour of misnaming themselves, it grieveth good Men to

remember; Sed motos praestat componere ﬂuctus.

And this Case is reported

for the surety and quiet as well of their Fermors

and others claiming from

them, as of themselves; for Estates, Covenants and other things made unto

them, ut res magis valeat quam pereat.

XXI. Then have you Osborn’s Case; wherein is at large resolved where false

or incongruous Latin, &c. shall abate, vitiate or make void Writs, Specialties,

Charters, Deeds or Records, and where not.

XXII. Read and Redman’s Case; concerning Summons and Severance,

wherein you shall ﬁnd, when the death of the Party severed shall abate the

Writ, and when not; and in some Cases where the death of one of the Plaintiffs,

though he be not severed, shall not abate the Original Writ, &c.

XXIII. Richard Smith’s Case, in what case a Quare Impedit lyeth de

medietate, &c. Ecclesiae.

XXIV, XXV, XXVI. Then shall you read certain Resolutions upon the Stat-

utes and Commission of Sewers, a necessary kind of Learning to be known,

but more necessary (I assure you) to be put in due Execution; and that by

colour thereof a private be not privily intended, when the publique is openly

pretended. And in those Cases is well discussed what the Commissioners of

Sewers may justly and safely do by their Wisdoms and Discretions.

30. [Ed.: But it is better to calm the troubled waves (an allusion to Virgil, Aeneid, 1. 135.)]

31. [Ed.: Fermors are tenants for life or for years; later associated with agricultural holdings.]

32. [Ed.: that a thing should rather avail than perish.]

33. [Ed.: for the moiety, etc. of a church.]

Mayor de

Linn’s

Case.

Osborn’s

Case.

Read versus

Redman.

R. Smith’s

Case.

3 Cases sur

Stat. de

Sewers.

Part Ten of the Reports336

XXVII. And lastly Scroop’s Case, touching a Point of Revocations, very

necessary to be known, for that Revocations are grown so frequent; and the

Resolution of this one Point may prevent many Controversies, that might

have grown out of them, and that most commonly between Brethren and

others near of Blood and Alliance.

If any do marvail, that seeing the Matter of every particular Case doth rest

in a narrow room, and that my manner of Reporting is summary, relating the

effect of all that was said of the one side by it self, and so likewise of the other,

beginning ever with the Objections, and concluding with the Resolution and

Judgment of the Court, (which I hold to be the best order of Relation) where-

fore divers of these Reports are drawn into so great a length; the Cause is

apparent, though I allow not of it, that the Questions or Objections moved

at the Bar, and the Arguments drawn from Books, Cases and other Authorities

in Law be so many, and to say the truth, many Questions are raised rather

out of the weight of the Matter, than the difﬁculty of the Case: For I never

saw any Case of great Value proceed quietly without many Exceptions in Arrest

of Judgment. The antient order of Arguments by our Serjeants and Apprentices

of Law at the Barr is altogether altered. 1. They never cited any Book Case

or Authority in particular as is holden in 40 Edw. 3. &c. But est tenus ou agree

in nostre livres, ou est tenus ou adjudge in termes,

or such like, which Order

yet remains in Moots at the Bar in the Inner Temple to this day. 2. Then was

the Citing general, but always true in the particular; and now the Citing is

particular, and the Matter many times mistaken in general. 3. In those days

few Cases in Law were cited but very pithy and pertinent to the purpose, and

those ever pincht most, and now in so long Arguments with such a Farrago

of Authorities, it cannot be but there is much refuse, which ever doth weaken

or lessen the weight of the Argument. This were easily holpen, if the Matter

(which ever lieth in a narrow roomth) were ﬁrst discerned, and then that every

one that argueth at the Bar would either speak to the purpose, or else be short.

But seeing my desire is, and ever hath been, that the Counsel learned, and

consequently the Parties might receive satisfaction, for which cause all the

Counsel that have argued in the Case to be adjudged, ought to give diligent

attendance and attention on those days when the Judges do argue, which are

34. [Ed.: but it is held or agreed in our books or it is held or agreed in (books of) terms (i.e. the year

books).]

Scroop’s

Case.

Nul livres

cite devant

ceux-jours.

Preface 337

ever publickly long before appointed, and preﬁxed on certain days. I have for

that purpose (the pains being mine own, and the Matter not without some

fruit) in the Cases of greatest consequence made the larger Report, compre-

hending the effect of all that was objected and resolved; and yet he may be

a good Miner that ﬁndeth and followeth the main Veins, though he discovereth

not the small and unvaluable Fillets, for there peradventure materiam superabit

opus.

This only I will add as a Caveat to all the Professors of the Law, that

seeing their Arguments should tend for the ﬁnding out of the true Judgment

of Law, for the better execution of Justice, that therein they commit not man-

ifest Injustice; for I am of Opinion that he that wresteth or misapplieth any

Text, Book or Authority of the Law against his proper and genuine Sense, yea

though it be to conﬁrm a Truth, doth against distributive Justice, which is to

give to every one his own. And let not those that heard the Arguments them-

selves uttered viva voce,

with the Countenance and Gesture of living Men

in the seat of Justice in open Court, fear that when they shall read them

privately in a dead Letter, it will want much of the former grace: For though

I confess that habet nescio quam energiam viva vox,

yet when they shall read

the effect of all that was spoken at large at several times by several persons,

at the Bench and at the Bar by either part, of many and divers Matters collected

and united together, and reduced ad diem

concerning every particular point,

it will case them of much labour, and conduce much to the fetling of their

Judgment, and that, if I be not deceived, not without a Students delight.

And for that I am intreated to shew as well the times when the Register,

the Mirror of Justices, Glanvil, Briton, Fleta, the Tales or Novae Narrationes,

Old Natura Brevium, Littleton and other Books of the Laws now extant were

published, and where the Authors themselves appear not in those Books, who

were the Authors of the same, as also the Antiquity of Serjeants at Law: For

their satisfaction they shall understand, that ﬁrst the Register, which containeth

the Original Writs of the Common Law, is the ancientest Book of the Law;

for the Book-Case and Record of 26 Edw. 3. lib. Aff. pl. 24. proveth directly,

that Original Writs of Assise and other Original Writs had been time out of

35. [Ed.: the task will exceed the matter.]

36. [Ed.: orally (literally, “with live voice”).]

37. [Ed.: the living voice has I know not what efﬁcacy,]

38. [Ed.: on the day.]

Part Ten of the Reports338

mind of Man (that is, the beginning whereof cannot be known either by

Remembrance, Reading or Record) long before the Conquest, whereof I give

here but a light touch, for that I have cited the same more at large in the

Preface to the 3d Part of my Commentaries,

and I avoid as much as I can,

unpleasing Iterations: And this Book is called Registrum Cancellariae

in the

Statute of Westm. 2. cap. 24. because that the Chancery is tanquaem ofﬁcina

Justitiae,

all Original Writs issuing out of that Court: Now, for the Authority

thereof, Bracton, lib. 5. Tract’ de Exceptionibus, cap. 17. fol. 413. faith thus, Breve

quidem cum sit formatum ad similitudinem regulae Juris, quia breviter & paucis

verbis intentionem proferentis exponit & explanat, sicut regula Juris rem quae est,

breviter enarrat, &c. Sunt quaedam formata sub certis casibus de cursu & de

Communi Concilio totius. Regni concessa & approbata, quae quidem nullatenus

mutari poterint absque consensu & voluntate eorum.

Now joyning both these

Authorities together a Man may safely conclude, that this Book is most ancient

and of greatest Authority. I confess, that by force of Acts of Parliament in

succeeding Ages, divers other Writs original in Cases newly happening are (as

appeareth in the same) added thereunto. And of these ancient Writs, I will

say (as Sir Th. Smith a Secretary of State said) that all the Secretaries in Chris-

tendom may learn of them to express much Matter in few and signiﬁcant

Words.

For the Mirror of Justices, Speculum Justiciar’,

the most of it was written

long before the Conquest, as by the same appeareth, and yet many things

added thereunto by Horn a learned and discreet Man (as it is supposed) in

the Reign of Edw. 1.

Concerning Glanvil, he wrote in the Reign of Henry the second as appeareth

by this Book; and what he was it appeareth in my Preface to my Eighth Book,

a History in my Opinion worthy the reading. And about the same time was

the Treatise called the Old Tenures made.

39. [Ed.: Coke refers here to the third part of the Reports.]

40. [Ed.: Register of the Chancery.]

41. [Ed.: as the workshop of justice,]

42. [Ed.: Writs are formulated like rules of law, which brieﬂy and in a few words expound and explain

the intention of the maker, just as rules of law brieﬂy state the matter as it is, etc. Some are formed upon

certain causes and (issued) of course, and are granted and approved by the common council of the whole

realm, and these can in no way be changed without their consent and will.]

43. [Ed.: Mirror of Justices, written, probably, circa 1290, although its ﬁrst printing was long after Coke

wrote this preface, in 1642.]

Preface 339

Bracton, as elsewhere I have noted, wrote about the end of the Reign of

Henry the third.

Briton composed a learned Work and published the same in 5 Edw. I. as

appeareth in 35 H. 6. by the Commandment of Edward the ﬁrst (our Justinian)

the Tenor whereof runneth in the Kings Name, as if it had been written by

him, answerable to Justinians Institutes, which Justinian assumeth to himself,

although it were composed by others. This John Briton was Bishop of Hereford,

and of great and profound Judgment in the Common Laws, an excellent

Ornament to his Profession; and a Safety and a Solace to himself, Vide Stamford

Praerog. R. 6. & 21.

Fleta is a Work well written by some learned Lawyer, who being committed

to the Prison of the Fleet, had leasure to compile it there, and therefore stiled

his Book by the name of the Fleet, Fleta, and concealed his own Name, as in

the Preface to his Work appeareth. The Author thereof is unknown, but it

apeareth in his Book that he lived in the Reigns of King Ed. 2. and Ed. 3.

Vide lib. 1. cap. 20. §. Qui ceperunt, lib. 2. cap. 66. § Item quod nullus.

But

of the certain time when it was ﬁrst published (for peradventure it had Ad-

ditions afterwards) there is some Question made: But in seeking after this, I

ﬁnd that this Book took the Name of the Prison of the Fleet, and that the

Fleet took the Name of the River running by it called the Fleet.

The Book entituled Novae Narationes, vouched and allowed in 39 H. 6.

30. by learned Prisot and his Companions, Justices of the Court of Common

Pleas, by the Name of the Tales, was published about the beginning of the

Reign of King Edw. 3. And Old Natura Brevium afterwards in the Reign of

the same King, for f. 100. b. the Statute of 5 Edw. 3.c. 12. is called le novel

statute: but since, Additions have been made thereunto. Of this Book Sir

Anthony Fitzherbert in his Proem to his Natura Brevium faith as followeth,

Et auxy pur cel intent & purpose, fuit compose per un sage & discreet home un

liure appel Natura Brevium.

Fortescue de laudibus legum Angliae

this Book was written in the Reign

of King H. 6. in commendation of the Laws of England, containing withal

44. [Ed.: See book I, ch. 20, § ‘Who took . . .’, and Book II, ch. 66, § ‘Also that no one . . .’.]

45. [Ed.: And also for this intent and purpose there was composed, by a sage and discerning man, a

book called Natura Brevium (the Nature of Writs).]

46. [Ed.: In Praise of the Laws of England.]

Part Ten of the Reports340

much excellent Matter worthy the reading. He wrote also a Book in defence

of the Title of King Henry the sixth his Sovereign Lord and Master, to the

Crown of England; but after out of Truth and Conscience retracted the same,

both which I have; wherein he deserved singular commendation, in that he

was not amongst the number of those qui suos amassent Errores,

but yielded

to Truth when he found it. This Sir John Fortescue was Lord Chief Justice of

England, and afterwards Lord Chancellor of England, and his Posterity remain

in great and good account to this day.

Stathom’s Abridgment, ﬁrst published in the Reign of King Henry the sixth

by Stathom a learned Lawyer of that time: And the Abridgment of the Book of

the Assizes, published also about the same time, but the Author thereof is

unknown.

Littleton’s Tenures, a Book of sound and exquisite Learning, comprehending

much of the Marrow of the Common Law, written and published by Thomas

Littleton a grave and learned Judge of the Court of Common Pleas, sometimes

of the Inner Temple, wherein he had great furtherance by Sir John Prisot Lord

Chief Justice of the Court of Common Pleas a famous and expert Lawyer, and

other the Sages of the Law who ﬂourished in those days. Of this Book Hotomon

a Civilian and Canonist in his Commentary De Verbis Feudalibus, Verbo Feu-

dum,

giveth his Censure, with what Charity or Discretion, judge learned

Reader: Stephanus Pasaverinus excellenti vir ingenio, &c. Libellum mihi An-

glicanum, Littletonum dedit, quo feudorum Anglicanorum jura exponuntur, ita

incondite, absurde & inconcinne scriptum, ut facile apparet verum esse quod Pol-

idorus Virgilius in Anglicana Historia scribit, stultitiam in eo libro cum malitia

& calumniandi studio certare.

Of Hottoman and his Author I may justly say,

and will say no more, volentes esse legis doctores, non intelligentes neque quae

loquuntur, neque de quibus afﬁrmeant,

and therefore let us leave them among

the number of those qui vituperant quae ignorant.

It is a desperate and dan-

47. [Ed.: who had liked their errors,]

48. [Ed.: Of Feudal Words, the Word Fee.]

49. [Ed.: Stephen Pasaverinus, a man of excellent skill, gave me a little English book called Littleton,

in which are expounded the feudal laws of England, written so disorderly, absurdly, and inelegantly that

it may easily appear to be true what Polydore Virgil wrote in his History of England, struggle with the

nonsense in this book with ill will and with the inclination of challenge.]

50. [Ed.: they want to be doctors of law without knowing what they speak or of what they afﬁrm,]

51. [Ed.: who vituperate the things of which they are ignorant.]

Preface 341

gerous Matter for Civilians and Canonists (I speak what I know, and not

without just cause) to write either of the Common Laws of England which

they profess not, or against them which they know not. Sure I am, it were a

ridiculous Attempt and Enterprise in me (that because I confess I have read

some little part of the Civil and Canon Laws, and that with some good as-

sistance and help) by and by to write either of them or against them. But

their Pages are so full of palpable Errors and gross mistakings, as these new

Authors are out of our Charity pitied, and their Books out of our Judgment

cast away unanswered. Alas, our Books of Law seem to them to be dark and

obscure; but no wise Man will impute it to the Laws, but to their Ignorance,

who by their sole and superﬁcial Reading of them cannot understand the depth

of them. I will not sharpen the Neb of my Pen against them, for that I pity

the persons, and wish they had more Discretion, for that I honour their Pro-

fession. And for Littleton’s Tenures, I afﬁrm and will maintain it against all

Opposites whatsoever, that it is a Work of as absolute perfection in its kind,

and as free from Error, as any Book that I have known to be written of any

Human Learning. And the Posterity of this Sage of the Law (unto whom he

is a great Ornament) doth ﬂourish unto this day, of whom a Man of great

excellency in his Profession hath justly said, that he was a famous Lawyer, &c.

to whose Treaty of Tenures saith he, the Students of the Common Laws are

no less beholding than the Civilians to Justinian’s Institutes.

Fitzherbert’s Abridgment was painfully and elaborately collected and pub-

lished in 11 H. 8. by Fitzherbert then Serjeant at Law. And he wrote also another

Book called his Natura Brevium, an exact Work exquisitely penned, and pub-

lished in 26 H. 8. when he was Sir Anthony Fitzherbert Knight, one of the

Judges of the Court of Common Pleas. About the same time he wrote his

Treatise of Justices of the Peace; wherewith the Judges (as I have seen it re-

ported) found fault, for that he therein afﬁrmed that Justices of Peace having

by their Commission Authority to hear and determine Felonies, &c. could

not hear and determine Murder, which (amongst others) they clearly over-

ruled, that Justices of Peace lawfully might do.

Doctor and Student, a Book written in 23 Hen. 8. Dialogue-wise between

a Doctor of Divinity and a Student of the Common Law, the Authors Name

was S. Germin, a discreet Man and well read, I assure you, both in the Common

Law, and in the Civil and Canon Laws also.

A Book intituled a Treatise made by Divines and other learned in the Laws

of the Realm, concerning the Power of the Clergy, and the Laws of the Realm,

Part Ten of the Reports342

published in time of King Henry the eighth and after the six and twentieth

year of his Reign; for therein the Act of Parliament made in that year is men-

tioned, which Book I have.

The small Treatises concerning the manner of keeping Court Baron and Leet,

&c. Modus tenendi Hundredum, &c. Returna Brevium, Charta feodi, &c. and

Ordinances for Fees in the Exchequer were all published in the end of the Reign

of King Henry the eighth.

The Book called the Diversity of Courts, was compiled after the 21st year

of H. 8. for the Statute of 21 H. 8. for Restitution of Goods upon Inditement,

&c. is recited, fol. 117. a.

Stamford: This Book containeth two parts, one of the Pleas of the Crown,

the other of a lesser Volume, of the Prerogative of the King; but the later was

ﬁrst published by Sir William Stamford Knight, sometimes of Grays Inn, a

Man excellently learned in the Common Laws; whose Posterity prosper at

this day.

Parkins a little Treatise of certain Titles of the Common Laws, wittily and

learnedly composed and published in the Reign of King Edward 6. by John

Parkins an Utterbarister of the Inner Temple.

I cannot pretermit the Abridgment of the Statutes, and the Table, to Fitz-

herberts Great Abridgment, and the Book of Entries, proﬁtably and painfully

(I assure you) gathered and published in the Reign of the late Queen Mary,

but especially the ﬁrst two, tending very much to the case and furtherance of

the Professors of the Law, collected by William Rastal a Reverend Judge of

the Court of Common Pleas, and of great Industry; many things being since

added both to his Abridgment of Statutes and to the Book of Entries, who

originally was also the Author of the Book called the Terms of the Law.

The Lord Brook’s Abridgment, ﬁrst published in the 16th year of Queen

Eliz. This was gathered by Sir Robert Brook Knight, Chief Justice of the Court

of Common Pleas, for his private use, and was published long after his decease,

a worthy and painful work, and an excellent Repertory or Table for the Year

Books of the Law: Sed satius est petere Fontes quam sectari Rivulos.

Plowden’s Commentaries, consisting of two parts, both of them learnedly

and curiously polished, and published by himself, the one in the 13th year of

Queen Eliz. and the other in the 21st year of the same Queen, Works (as they

52. [Ed.: but it is more satisfactory to seek the sources than to follow the streams.]

Preface 343

well deserve) with all the Professors of the Laws of high account. The Author

was an ancient Apprentice of the Law, of the Middle Temple, of great Gravity,

Knowledge Integrity.

The Lord Dyer’s Book, containing the fruitful and summary Collections of

that Reverend Father of the Law Sir James Dyer Knight, late Chief Justice of

the Court of Common Pleas, for his private use and remembrance, and never

intended by him in this form to be made publique, but were as he left them

imprinted after his decease in the 25th year of Queen Eliz. the very Original

whereof, written with his own Hand, I have.

Lastly, Master Lambards Collection of the Ofﬁce of Justices of the Peace,

methodically written, was published towards the end of the Reign of Queen

Elizabeth.

Concerning the antiquity of Serjeants at Law, it is evident by the Book of

the Mirror of Justices, Justices, lib. 2. cap. des Loiers, which treateth of the Laws

of this Realm and the Ministers thereof long before the Conquest, that Ser-

jeants at Law were of ancient times called Narratores, Countors or Counteors,

because the Count or Declaration comprehended the substance of the Original

Writ, and the very Foundation of the Suit, of which part, as of the worthiest,

they took their denomination, and is all one in effect, with that which in the

Civil Law is called Libellus; and they lost not that Name in the Reign of King

E. 1. as it apeareth by the Statute of W. 1. c. 29. ann. 3 Edw. 1. for there he is

called Serjeant Countor, Serviens Narrator: And by the Statute of Articuli super

Chartas, cap. 11. anno 28 E. 1. Nest my a intender que home ne poit aver counsel

des countors, & des sages gents pur lour donant;

where under this word [Coun-

tors] Serjeants at Law are included, and until this day, when any proceeds

Serjeant, he doth count in some real Action at the Bar of the Court of Common

Pleas; and under these words (Sages gents) are included Apprentices at Law:

But since the Reign of E. 1. they have always been called Servientes ad legem

for their good Service to the Common-wealth by their sound Advice in Law;

and as in ancient time, they that preserved and kept the Peace were called

Servientes pacis or ad pacem,

so these Men are called Servientes legis or ad

53. [Ed.: It is not to be understood that one may not have counsel of counters and other learned men

for their fee,]

54. [Ed.: serjeants at law.]

55. [Ed.: serjeants of the peace (or) at the peace.]

Part Ten of the Reports344

legem or in legibus, &c.

And in that ancient Treatise of the Mirror of Justices

ubi supra, Counteurs

are described to be Serjeants skilful in Law of the Realm,

which serve the common People to pronounce and defend their Actions in

Judgment for their Fee, whose duty is there excellently described. This proveth

the great Antiquity of the Serjeants at Law. Inter placita de Parliament’ tent’

apud Ashering ann. 19 Edw. 1.

in that great Case of Thomas de Weylond it is

said, Servientes in legibus & consuetudinibus Angliae experti, &c.

and in all

our Books of years and terms from the beginning there is mention made of

them; as in 1 Edw. 3. 22. Serjeant le Roy, &c. and in 1 Edw.3.s.16. there is

mention made of an Apprentice; and he is called an Apprentice of the Law,

of this word (apprender

) for that he ought to be apprise in la ley,

and hath

manifested the same by open reading upon some Statute in that Inn of Court

whereof he is Fellow, and is next in degree under a Serjeant. And this Ap-

pellation is very ancient, and so is proved Rotulo Paliamenti in Crastino Epi-

phaniae, anno 20. Edw. 1. Rot. 5. in dorso,

The Act saith, De Atturnatis &

Apprenticiis, Dominus Rex injuxit Johanni de Mettingham & sociis suis, quod

ipsi per eorum discretionem provideant & ordinent certum numerum de quolibet

comitatu, &c.

And so is farther provided by a Record, inter communia Placita

tent’ in Hustingo London’ die Lunae in Festo Sancti Clementiae Papae anno Reg.

Edw. 3. post Conquestum 23. viz. Die Jovis proxime ante festum Sancti Gregorii

Papae anno Domini 1348. Ego Johannes Tavie Armiger lego animam meam Deo,

&c. Item lego omnia tenementa mea cum omnibus pertinentiis quae habeo in

parte Australi in Parochia Sancti Andreae, &c. Aliciae Uxori meae ad totum

terminum vitae suae, Et quod post decessum praedictae Aliciae totutum illud

Hospitium, in quo Apprenticii legis habitare solebant, per Executores meos si su-

perstites fuerint, &c. vendatur, & quod de pecunia inde percepta unus Capellanus

idoneus pro anima mea, &c. celebrand’, dummodo pecunia illa perseveraverit,

56. [Ed.: serjeants of the law, or at law, or in the laws, etc.]

57. [Ed.: counters.]

58. [Ed.: Amongst the pleas of the parliament held at Ashridge in the nineteenth year of Edward I.]

59. [Ed.: serjeants expert in the laws and customs of England, etc.]

60. [Ed.: to learn.]

61. [Ed.: learned in the law,]

62. [Ed.: in the roll of the parliament (held) on the morrow of the Epiphany in the twentieth year of

Edward I, roll 5, on the dorse (the reverse side of the roll).]

63. [Ed.: Concerning attorneys and apprentices. The lord king enjoins John of Mettingham and his

fellows that they should by their discretion provide and ordain a certain number from each county, etc.]

Preface 345

inveniatur. Item lego totum illud tenementum in quo inhabito cum tribus shopis

post decessum ipsius Aliciae ad fabricam Ecclesiae Sancti Andreae.

Out of this

Record I observe three things; ﬁrst, for the Antiquity of Apprentices of the

Law, That the House of Chancery in Holborn now called Tavies Inn, had been

of ancient time, before the 23rd year of Edw. 3., (which is about 264 years

past) an House of Court, wherein the Apprentices of the Law were wont to

inhabite: 2. For the Antiquity and true Name of that House of Chancery,

rightly called Tavies Inn. 3. That upon this Will the Case in 13 R. 2. Tit. Devise

Fitzh. 27. was adjudged, That the Remainder of the House devised to the said

Alice for life, belonged to the Parson of the Church of Holborn and his Su-

cessors. And in 39 Edw.3.f.47. b. in a Quod ei deforceat

Ingleby, Serjeant,

of Counsel with the Tenant took this Exception; This Writ (saith he) is founded

upon a Record precedent, and therefore we pray, that the Demandant may

put the Record (whereupon this Writ dependeth) in certain, and in Case of

Attaint and scire facias

(which depend upon Records) the Tenant shall have

Oyer of the Record: Wilby and Shipwith, This was never any Exception in this

place, but we have heard it oftentimes amongst the Apprentices in Houses of

Court. And concerning Apprentices of Law thus much shall sufﬁce.

The manner of the Creation of Serjeants is also most ancient; for it is by

Writ, which is commonly found in very ancient Registers, and continued to

this day, in this form, Rex, &c. Willielmo Herle Salutem; quia de advisamento

consilii nostri ordinavimus vos ad statum & gradum Servientis ad legem, in quin-

dena Sancti Michaelis proxim’ futur, suscipiend’, Vobis mandamus ﬁrmiter in-

jungentes, quod vos ad statum & gradum praedictum ad diem illum in forma

praedicta suscipiend’ ordinetis & praeparetis: & hoc sub poena mille librarum.

64. [Ed.: among the common pleas held in the husting of London on Monday, the feast of St. Clement

the Pope, in the twenty-third year of King Edward the third after the conquest, in the year of our Lord

1348: I, John Tavie, esquire, bequeath my soul to God, etc. Also I bequeath all my tenements with all the

appurtenances which I have in the south part of the parish of St. Andrew, etc. to Alice my wife for the

whole term of her life, and that after the decease of the aforesaid Alice all that inn in which the apprentices

of the law are used to dwell shall be sold by my executors, if they should survive, etc., and from the money

thereby received they should ﬁnd one suitable chaplain to celebrate for my soul, etc. so long as the money

lasts. Also I bequeath all that tenement in which I live, with three shops, after the death of the selfsame

Alice, towards the fabric of St. Andrew’s church.]

65. [Ed.: Writ by which a life tenant or other holders of a limited fee seeks lands lost through non-

appearance at an earlier proceeding.]

66. [Ed.: Writ to enforce an earlier judgment or other matter of record.]

Part Ten of the Reports346

Teste meipso, &c.

wherein for the dignity of him, it is to be observed, 1. That

he is called by the King by advice of his Council in that behalf, 2. By the

Kings Writ, 3. The Writ is directed to him in the plural number, vobis, a special

mark of Dignity: 4. That he is called ad statum & gradum Servientis ad legem:

And in the Act of Parliament of 8 H. 6. cap. 10. of the Serjeant it is said, When

he taketh the same state upon him. And in the Act of Parliament of 8 E. 4. cap.

2. al creation des Serjeants del Ley, &c.

and Creation is ever applied to Dignity.

But it is true, that the said Writ is not put into the printed Register, no more

than Writs to call any to be a Baron of the Realm or of higher Dignity, for

that those Writs originally are only de gratia Regis;

and such as are published

in the printed Register are originally de Jure Legis.

Of the Solemnity of his

Call, viz. his Hood, Robes, Coif, and other signiﬁcant Ornaments, of the great

and sumptuous Feast they make, of the Rings of Gold they give, of their

Attendants, and other great and honourable Ceremonies, I purpose not at this

time (being not pertinent to the Question I have in hand) to write any thing

at all.

Their ancient Reputation is (I assure my self) the better continued, because

they without the least alteration continue the ancient Habits and Ornaments

belonging to their state and degree; for most commonly the ancient Reverence

of any Profession vanisheth away with change of the ancient Habit, albeit the

newer be more costly, courtly and curious. And in the Act of Parliament of

24 H. 8. cap. 13. he (having both statum & gradum

) hath the Precedency of

divers that sit on the high Bench in a Court of great Eminency in Westminster-

Hall: But seing there is no Remedy given by Law for Precedency, I (dealing

only with matters in Law) mean not to meddle with it: And albeit I have

learned more of the Antiquity of this State and Degree in the School of ven-

67. [Ed.: The king, etc. to William Herle, greeting. Because by the advice of our council we have

ordained that you should take upon you the estate and degree of a serjeant at law in the quindene of

Michaelmas next following, we command you with ﬁrm injunction that you order and prepare yourself

to undertake the aforesaid estate and degree at that day in form aforesaid, and this under pain of one

thousand pounds. Witness myself, etc.]

68. [Ed.: to the estate and degree of a serjeant at law:]

69. [Ed.: at the creation of the serjeants of the law, etc.]

70. [Ed.: by the king’s grace;]

71. [Ed.: by right of law.]

72. [Ed.: an estate and a degree.]

Sutton’s Hospital 347

erable Antiquity, yet hereof thus much for this time shall sufﬁce; Et valeant

qui contabulatis mendaciis antiquitatem superstruunt.

Of these Serjeants, as of the Seminary of Justice, are chosen Judges; for

none can be a Judge, either of the Court of Kings Bench, or of the Common

Pleas, or Chief Baron of the Exchequer, unless he be a Serjeant; neither can

he be of either of the Serjeants Inns, unless he hath been a Serjeant at Law,

for it is not called Judges or Justices Inn, but Serjeants Inn; for I have known

Barons of the Exchequer (that were not of the Coif, and yet had judicial places

and voices) remain in the Houses of Court whereof they were Fellows, and

wore the Habit of Apprentices of the Law.

But I perswade my self you desire to read the Cases whereof I have given

you a taste, & tempus est Veritatis & Justitiae sancta adire penetralia:

And

therefore here will take my leave of the good Student, to whom I wish with

his increase of reading more and more a delight in this Study, an excellent

mean to attain unto augmentation of venerable knowledge (which is one of

the ends of my labours) not knowing what better thing to desire for him; and

conclude with this Distichon and direction,

Discendi modus est, dum te nescire videbis:

Disce, sed assidue; Disce, sed ut sapias.

The Case of Sutton’s Hospital.

(1612) Michaelmas Term, 10 James I

In the Court of the King’s Bench, before all the Judges of England.

First Published in the Reports, volume 10, page 23a.*

Ed.: Parliament passed an act to enable Thomas Sutton to establish a hos-

pital and school in the then-defunct foundation of Charterhouse School.

James I granted a license to Sutton to found a hospital for the relief of the

73. [Ed.: And away with them who strew antiquity with planks of lies.]

74. [Ed.: and the time has come to enter the inner sanctum of truth and justice.]

75. [Ed.: The manner of learning is, when you see yourself to be ignorant:

Study, not only to practice; Study that you may be wise.]

*The pleadings of the case are ﬁled at Mich. 10 Jacobi Rot. 574.

Part Ten of the Reports348

needy and a school for the maintenance of poor scholars, appointing Sutton

as head of the hospital for life and giving the governors of the school and

their successors the license to appoint the head after his death. Sutton pur-

chased the old buildings of Charterhouse in London and established there

the Hospital of King James and appointed a master to serve or be dismissed

at Sutton’s will, (and would be re-established in 1872 in Godalming, Surrey).

Richard Sutton and John Lawe were arrested for trespassing on the grounds.

They raised many objections to the existence of the foundation in defense.

The King’s Bench rejected their concerns, in the process inventorying many

of the obligations in chartering a corporation, or at least a charitable cor-

poration, making this opinion one of the foundations of the law of cor-

porations. Coke lists the governors established in the charter of the school

and hospital, who include not only himself but most of the leading members

of the bench.

In the King’s Bench Between Simon Baxter, Plaintiff, and Richard Sutton

and John Law, Defendants, in an action for trespass, de eo quod ipsi

30 May

10 Jac. a Capital Messuage called the Charter-house in the parish of St. Sep-

ulchre, in the County of Middlesex, freger’ & intraver’

upon not guilty

pleaded. The whole special matter was found (which you may see at length,

Mich. 10. Jacobi Rot. 574, in the Kings Bench). And the same was adjorned

out of the Court of the King’s Bench by the Judges of the same Court, into

the Exchequer Chamber; and was there argued at the Bar by John Walter [of

the Inner Temple] Yelverton of Gray’s Inn, and by Bacon Solicitor General

for the Plaintiff, and for the defendant by Coventry of the Inner Temple,

Hutton, Serjeant at Law, and by Hobart, Attorney General. And the Plaintiff ’s

Counsel argued very strongly in general: 1. That there was not any Incor-

poration created by the King’s Letters Patents, dated 22 Junii 9 Jac. Regis. 2.

Admitting the incorporation was good; yet there was not any Foundation

made by Sutton according to the authority given to him. 3. That the bargain

and sale made by Sutton, bearing date 1 Nov. 9 Jac. was utterly void, and by

consequence all the said possessions descendible to the Plaintiff. And in the

argument of this Case, these points upon these grounds were moved:

1. [Ed.: forasmuch as they.]

2. [Ed.: broke and entered.]

Sutton’s Hospital 349

1. It is Objected that by the Act of Parliament, 9 Feb. 7 Jac. Reg. mentioned

in the Record, An Hospital was legally erected and Incorporated, at Halling-

bury in the County of Essex; and all the said Manors given to it; and by

consequence the said Corporation made after the said | Act by the Letters

Patents 22 Junii 9 Jac. Reg. was utterly void. Note reader, the said Act cannot

give the said House called the Charter-house, for Sutton purchased it after-

wards, viz. 9 May 9 Jac. Reg. as appeareth by the record.

2. It was Objected that no Hospital was founded by Sutton, and therefore

the Incorporation failed; because that Sutton had the King’s Licence to Found,

Erect and establish an Hospital, which was an act precedent to be performed

by Sutton before the Incorporation, which he hath not done; and so he hath

not pursued his Licence; which Licence the King might have countermanded;

and which was countermanded in Law by the death of Sutton.

3. That the King by his Charter cannot name the House and Inheritance

of Sutton to be an Hospital, for that would-be to give a name to an Hospital

in alieno solo.

4. The place of every Corporation ought to be certain, for without a certain

place there cannot be any Incorporation; but here the Licence to Sutton is to

Found an Hospital “at or in the Charter house;” so that he may found it in

all or any part of the same house, And therefore till Sutton hath founded it

certain, there is not any certainty of the place, and by consequence no Cor-

poration. To which was added, That a place by a known name is not sufﬁcient

to support the name of an Incorporation, but the same ought to be described

by metes and bounds; And divers precedents were cited and shewed, where

the Scite of Hospitals, Priories, &c. were so particularly described.

5. The King by his Letters Patents hath intended to make a present In-

corporation, and so his words expressly import. 1. “From henceforth, &c.”

And yet no incorporation can be till Sutton hath named a Master, And the

Letters Patents bear date 22 Junii 9 Jac. Reg, And the writing of Nomination

30 Octob. Anno 9, And so the Letters Patents are repugnant in themselves

and void.

6. Until there be an actual Hospital and poor in it, there cannot be Gov-

ernours of them, for Governours ought not to be idle, or as Cyphers in Al-

gorisme; for Governours and Government, are relativa, quae sunt simul tem-

3. [Ed.: in someone else’s soil.]

1. Objec-

tion Postea

24.b.

[23 b]

2. Objec-

tion Postea

25.b.

3. Objec-

tion Postea

28.b.

4. Objec-

tion Postea

29.a.

5. Objec-

tion Postea

31.b.

6. Objec-

tion Postea

32.a.

Part Ten of the Reports350

pore,

and as well in his Will as in other Instruments, he has called it many

times his intended Hospital.

7. To every Corporation a Foundation is requisite; and here is not any

Foundation made by Sutton. For ﬁrst he ought to have per verba praescripta

& in terminis terminantibus

| Founded, Erected, and established the said

House of Charter-house an Hospital, &c. And the same was likened to Cases

of Exchange, frankalmoigne Dedi, warrantizo,

which are Frank-marriage; quae

sunt verba legalia & incompatibilia, &c.

And divers precedents were shewed

to the Justices of building of Hospitals, Schools, &c. wherein the said words

of fundo, erigo, &c.

were used. Secondly, before such lawful foundation made

by Sutton, a Stranger could not have given any land or other thing to the

Governours. Thirdly, without such Foundation, in time to come it shall not

be known who should be the Founder, whereupon confusion would follow.

8. The nomination of the Master made by Sutton is void for two reasons;

one, that he was named to Master but at will, where he ought to be named

for life, in as much as he is to have a free-hold in the Land. Also there ought

to be at least an actual Hospital Founded by Sutton according to his Licence,

before he could nominate a Master of it; For otherwise it shall be a Mathe-

matical or Utopical Hospital.

9. The said bargain and sale made by Sutton to the Governours was void

for three causes. 1. That the money which was the consideration thereof was

paid by the private persons of the Governours, and therefore the bargain and

sale of the Manors &c. cannot enure to them in their politick capacity. 2. The

Habendum

is to the Governours upon trust and conﬁdence; and a body

Politick aggregate of many cannot stand seised in trust and conﬁdence to the

use of another. 3. Because no Hospital was founded by Sutton according to

his Licence; And for all the other Objections made against the Foundation

and Incorporation, the said bargain and sale was void, and by consequence

all the said Manors descended to the Plaintiff as Cousin and heir to Sutton.

4. [Ed.: relative, and exist at the same time.]

5. [Ed.: by prescribed words and in certain terms.]

6. [Ed.: I have given, I warrant,]

7. [Ed.: which are legal words and incompatible, etc.]

8. [Ed.: I found, erect, etc.]

9. [Ed.: Clause of the grant: “to have”.]

7. Objec-

tion Postea

33.a.

[24 a]

8. Objec-

tion Postea

34.a.

9. Objec-

tion Postea

34.a.

Sutton’s Hospital 351

10. That no Hospital was Incorporated by the said Letters Patents, and

therefore it was objected, That the King could Incorporate them by the name

of Governours, &c. of the Hospital, but of an Hospital in Law, or a Legal

Hospital, as it was called; For the Governours cannot plead that they are seised

in jure Hospitalis sui,

because in Law there was not any Hospital.

Which brief Report I have made of these Objections, because I think them,

or the greater part of them were not worthy to be moved at the Bar, nor

remembered at the Bench. And that this Case was by the Justices adjourned

into the Exchequer Chamber | more for the weight of the value than for the

difﬁculty of the Law in the case. And the entire Record, as appeareth by the

Exceptions, ought to be the Case; which was openly argued in the Exchequer

Chamber by all the Judges of England and Barons of the Exchequer, except

the Chief Justice of the King’s Bench, who was then sick, Sir Robert Houghton,

Sir Augustine Nicholls, Sir John Dodderidge, Sir Humfrey Winch, Sir Edward

Bromly, Sir John Croke, Sir James Altham, Sir George Snigge, Sir Peter War-

burton, Sir Lawrence Tanﬁeld Chief Baron, and Sir Edward Coke, Chief

Justice of the Common Pleas. And it was Resolved by them in their arguments

(except by Baron Snigge and Justice Croke) that judgment should be given

against the Plaintiff, Et quia rectum est judex sui & obliqui.

A right line maketh

discovery not only of that which is right, but of that which is wrong and

crooked; and the conﬁrmation of the right and truth is the confutation of

error and falshood. I will report the effect of the reasons and causes which

afﬁrme and conﬁrme the Resolutions of the Judges, which are of so great

authority, perspicuity and gravity, that the Objections need not have any par-

ticular answer. And yet for the satisfaction of all men, every one of them shall

be particularly answered. And because that this Case doth chieﬂy depend upon

the Letters Patents; And the best Exposition of the King’s Charter is upon

the consideration of the whole Charter, to expound the Charter by the Charter

itself, verba cartae regiae aeque portant suam expositionem;

and the King’s

Letters Patents in this case are viscera causae, & expositio quae ex visceribus

causae nascitur, est aptissima & fortissima in lege.

All the parts of the Letters

10. [Ed.: in right of his hospital.]

11. [Ed.: and because right is the judge of itself and of what is crooked.]

12. [Ed.: the words of a royal charter in equity bear their own interpretation;]

13. [Ed.: the innermost parts (lit. bowels) of the cause, and an exposition which is born in the innermost

parts of the cause is the most apt and the strongest in law.]

10. Objec-

tion. Pos-

tea 34.a.

[24 b]

The Judges

who ar-

gued in the

case.

Maxim.

Viscera

causae.

Part Ten of the Reports352

Patents were considered, and every material part thereof explained according

to the true natural sense, which is the best method, upon the consideration

of many others, for the more clear Report of this Case.

The ﬁrst part of the said Charter viz doth contain a short recital of two

things, 1. of the title of the Act of 9 Feb. anno. 9. viz “An Act to conﬁrm and

enable the erection and establishment of an Hospital and Free Grammar

School, given and intended to be given by Thomas Sutton, Esquire.” which

title proveth that no Hospital was founded by the Act itself; but the scope of

the Act was to enable Sutton to erect and establish an Hospital, &c. and

therefore the title saith, “intended to be given and performed by Thomas

Sutton, Esquire;” And also the same appeareth by divers parts of the body of

the Act, which are all in futuro & nihil in praesenti.

| Be it enacted, That in

the Town of “Halingbury, &c. there may be builded one meet house for abid-

ing of poor people and Scholars, &c.” which are words de futuro

and it is

not certain in what part of the Town the House shall be built. 2. “And that

the same shall and may be called and named the Hospital of King James;”

which are words also de futuro. 3. “And that the Lord Arch-Bishop of Can-

terbury, &c. shall and may be Governour, &c. 4. And that the same Gov-

ernours, &c. shall for ever hereafter stand and be incorporated:” which words

ought to be intended to take effect after the erection of the Hospital, &c. in

a certain place, &c. And so the construction is in futuro, which well appeareth

with the future words following, and may have perpetual succession. 5. “And

may for ever hereafter, have, hold, and enjoy, Lordships, Manors, &c. without

Licence of Alienation or Licence of Mortmain.” By which it appeareth, that

this clause is not in effect, but a Licence to give Manors, Lands, &c. holden

in Capite

without other Licence of Alienation, and also without other Licence

of Mortmain. But this clause was superﬂuous and impertinent if the Land

should pass by the Act itself, for then no Licence in those cases was requisite.

And without question if it were admitted that there was a Corporation, yet

no Lands are given to them by those words, de futuro. Also although the said

Lands were given them, yet the King by his Letters Patent cannot create and

incorporate an Hospital in the Charter-house, which was purchased after the

14. [Ed.: in future, and nothing is in the present.]

15. [Ed.: concerning the future.]

16. [Ed.: in Chief, that is, a tenancy held directly from the crown.]

Part of the

King’s

Charter

Ans. to 1

Obj. Ante

23.a.

[25 a]

Sutton’s Hospital 353

Act, and the Action of Trespass in the case at Bar is for Trespass done in the

Charter-house. But it was answered by all the Justices and Barons of the Ex-

chequer (except Justice Croke) that the Act of 9. Jac. doth not Incorporate

the Governours &c. but in futuro, which never took nor could now take effect;

and by consequence no Land was or could be given to it. The 2d branch of

the recital is of the purchase of the Charter-house after the Act, which, as it

is there rehearesed, is more ﬁt and commodious than Hallingbury to be con-

verted into an Hospital.

In the second part Sutton is a suitor and petitioner to the King for four

things: 1. “To give Licence to Found, Erect, and establish an Hospital house,

&c. and Free Grammar-School, &c. at or in the Charter-house,” wherein hath

been observed the incertainty of the suit, “at or in the Charter-house” or but

of that: after. “2. Incorporate the Governors hereafter named;” so that Sutton

himself doth name the Governours which the King doth Incorporate. 3. By

such name of Incorporation | as is hereafter mentioned to have capacity and

ability, &c. by which also it appeareth that Sutton doth devise and prescribe

the name of the Incorporation; and by all these three clauses it appeareth,

That the suit of Sutton and his express consent was, that the Governours

should be named of the said House called the Charter-house. 4. Sutton was

suitor, “that the Governours, &c. might take in Mortmain for the better main-

tenance of the said Hospital, Free-school, Preacher,” &c.

The third part of the Letters Patent containeth Grants and Acts made by

the King in two manners, sc by way of Licence and by way of Grant; of the

Licences some are requisite; some abundant and not requisite, and some req-

uisite for the sustentation of the poor, &c. and not to the essence of the

Corporation; and of the grants, some are in praesenti, and some in futuro, and

of each of them some are of necessity, and some explanatory and not of ne-

cessity; and those which are of necessity, some are of necessity to the creation

of this body politick, and some to the continuance and preservation of it. And

into those branches the whole Letters Patents are divided, which shall be

observed as they arise and have place in the same Letters Patents. But before

all the Licences and Grants, the King doth preﬁx a preamble, sc. “The King

affecting so good a work, of his Princely disposition and care for the furtherance

thereof, and that the same may take the better effect, &c.” (wherein appeareth

the Honour, Charity, and pious disposition of the King) “giveth Licence to

Thomas Sutton, his Heirs, Executors, Administrators, and Assigns, at all times

hereafter at their will and pleasure to place, erect, found and establish at or

The second

branch of

the Char-

ter.

[25 b]

The 3d

part of the

Charter.

The divi-

sion of the

Charter.

Part Ten of the Reports354

in the said house called the Charter-house, one Hospital house, and place of

abiding for the ﬁnding, sustentation, and relief of poor, aged, maimed, needy,

or impotent people, &c. Also to erect, found, &c. one Free-School for the

instruction, teaching and maintenance of poor Children or Scholars, &c. And

to place and maintain a learned School-master and Usher to teach and instruct

the said Children in Grammar. And also one godly and learned preacher, to

Preach and teach the Word of God to all the said persons, poor people, and

children, members and ofﬁcers at or in the said house.” That in the ﬁrst place

doth contain the end of Sutton’s piety and charity: for Sapiens incipit a ﬁne,

& quod primum est in intentione ultimum est in executione.

And that was a

grand motive to the King of his Royal authority to give him means, sc. by

Creation of a capable body Politick by way of Incorporation, to have perpetual

succession, to perfect and perpetuate so pious and charitable a work | And

that the Incorporation ought to precede the execution of this Licence, is evi-

dent by the words and coherence of the Letters Patents, sc. For this Licence

is in futuro, sc. To Thomas Sutton, his Heirs, Executors, Administrators and

Assigns, “at all times hereafter at their will and pleasure, &c.” so that it is

future as well in persons, Heirs, Executors, &c. as in the thing to be done.

But when he cometh to the clause of incorporation, he doth it per verba de

praesenti tempore:

“And the said persons and their Successors by the name,

&c. We do by these presents for ever hereafter really and fully Incorporate,

&c.” By which it followeth, that the Incorporation being present, and the

execution of this part of the Licence future, the Incorporation ought of ne-

cessity precede the execution of the Licence. Then forasmuch as the principal

foundation of the scruple was conceived upon these words, “to found, erect,

and establish” the true Etymology and genuine sense of them was considered;

and ex vi termini fundare, nihil aliud est quam fundamentum jacere seu ponere,

&c.

to lay the foundation of a building; and in this sense the Holy Ghost

(which moved Sutton to this work of Piety) in the Scripture taketh it. And

therefore in the 3 King. Chap. 6. verse 37. Fundata est domus anno primo, et

Anno 11 perfecta fuit domus in omnia opere suo.

And 3 King Chap. 16. Verse

17. [Ed.: The wise man begins with the end, and what is ﬁrst in intention is last in execution.]

18. [Ed.: by words of the present tense.]

19. [Ed.: by force of the word, to found is nothing other than to lay or place a foundation, etc.]

20. [Ed.: 1 Kings, ch. 6, v. 37: In the ﬁrst [fourth] year was the foundation of the house laid, and in

the eleventh year was all the work on the house ﬁnished.]

Answer to

2d objec-

tion Antea

23.

[26 a]

Sutton’s Hospital 355

34. Ediﬁcavit in diebus illis Hiel de Bethel Jerico in Abiram primitivo suo fun-

davit, & in Segub novissimo suo posuit portas.

By which it appeareth that to

found, is to lay the foundation of a building, which is the ﬁrst mechanical

part of Architecture. Then when the foundation is laid, then cometh the erec-

tion of the House, as it is said by the son of Sirach 49. 15. Erexit nobis muros,

& erexit domus nostras.

And although that the foundation be well laid, and

thereupon a building well erected, yet it ought to be well joyned and estab-

lished, and therefore this word (establish) is added to make the building to

have continuance. 2 Kings 13. Stabiliam thronum ejus;

That is, I will make

his throne to have perdurance and continuance. So that to Found, Erect, and

establish, are opera laboris, & laboris architector’,

and that appeareth by the

words of the Charter itself, “The King affecting so good a work,” tam bonum

opus:

Also the subsequent words prove it also; “to found, erect, and establish,”

what? “an Hospital-house.” So that it clearly appeareth, that the effect of this

Licence is to make ﬁt and to ﬁnish and furnish an Hospital-house for the

habitation of the poor, &c. See after, Mich. 34 and 35 Eliz. the Case of the

Hospital of Bridewell for the exposition of these words, fundo, erigo, & sta-

bilio,

which is a stronger case than this is. And this word (place) in the ﬁrst

place is to be intended, as hath been said, in the last place, scil. To place poor

in it, | to erect a Free-School for the instruction of youth, and for the main-

tenance of a Preacher. But how shall this holy and charitable intention (that

the same may remain for ever) be produced to an end and effect? The Charter

itself shewth it in effect in this manner: It is impossible to take in succession

for ever without a capacity; and a capacity to take in succession cannot be

without incorporation; and the incorporation cannot be created without the

King; for this cause the Charter saith, “And for the maintenance and con-

tinuance of the said Hospital, &c. And that the same may take the better

effect, That the said persons, &c. be one body Corporate and Politick, to have

perpetual succession to endure for ever: We do by these presents for ever

21. [Ed.: 1 Kings, ch. 16, v. 34: In those days Hiel of Bethel laid the foundation of Jericho in Abiram

his ﬁrstborn, and in Segub his youngest son he set up the gates.]

22. [Ed.: He put up walls for us, and erected our houses (quoting Ecclesiasticus, chap. 49, v. 17.)]

23. [Ed.: I will establish his throne.]

24. [Ed.: works of labour, and of the labour of builders.]

25. [Ed.: so good a work.]

26. [Ed.: I found, erect, and establish.]

[26 b]

Part Ten of the Reports356

hereafter fully and really incorporate, &c. to have capacity and ability to take,

&c.” Without this capacity the end cannot take effect for inhabitants of a

Town, or other single persons (who have not capacity to take in succession

but only to their singular heirs) have capacity to take an incorporation, and

after their incorporation they have capacity to take in succession any lands,

tenements, or hereditaments; unde sequitur,

that the incorporation which

giveth capacity ought to precede the giving of any lands, &c. Another licence

is given to this new incorporation to take in Mortmain. This Licence is not

of necessity, either of the essence of the incorporation, or of the continuance

of it; but yet it is requisite for the establishing and maintenance of the end,

scil. to have the poor sustained, and scholars instructed, &c. For they cannot

be maintained without a Revenue, and they cannot take or keep the Revenue

(as has been said) without a Licence in Mortmain; and therefore these two,

scil. Incorporation and Licence in Mortmain ought to precede the donation.

For words to Found, Erect, and establish an Hospital-house, cannot be ex-

tended to the Incorporation, for that belongeth only to the King, and that

the King doth; Nor to any dotation, for as yet (as hath been said) there is not

any capacity. Ergo

it extendeth onely to the building and ﬁnishing of the

said house to be a ﬁt habitation for poor, &c. Sutton thinking and rethinking,

that as well the incorporation as the Licence in Mortmain were in their several

degrees requisite to bring his good and charitable purpose to effect, to the end

the King should grant that which was onely in his power to grant, and which

he himself without the King could not do; he was a suitor to the King to

grant him Licence to do that which of himself in respect of the ownership of

land he might do without the King, scil. To build, ﬁnish, and furnish the said

house for the habitation of | poor, as well before the Incorporation as after:

But to give it possession, &c. as hath been said he could not, and therefore

this Licence was but explanatory to declare what Sutton as owner of the Land

might do, either with the King’s Licence or without the King; and therefore,

the King cannot countermand this Licence, because it is but declaratory of

that which Sutton might do as owner of the Land without any Licence. And

this appeareth by the book in 3 H. 7. Fitz. Grant. 36. the Record whereof I

have seen, Between John Buckland, term. Vintner plaintiff, in an action of

27. [Ed.: whence it follows,]

28. [Ed.: therefore.]

[27 a]

Sutton’s Hospital 357

Trespass, and Richard Fowcher, Chaplain Defendant, Sanct. Mich. 2. Hen.

7. Rot. 155., in the King’s Bench, and in the Report at large, Termain senth

2 Hen. 7. 13a, 13b. where the case in effect is, That King Henry the fourth

by his Letters Patents, Anno 6 regni sui,

Reciting that Robert Ramsey was

seised in Fee of an house in the parish of St. Margaret in London, called the

Sun, &c. notwithstanding the Statute of Mortmain, of his especial grace, and

for 20 l. gave Licence to Robert Ramsey, that he might give 20 marks rent,

going out of the said house, cuid’ capellano divina celebranti ad altare beatae

Mar’ in eccles. S. Magni London’ singul’ diebus pro salubri statu preaed’ Rob’ &

Johan’ uxor’ suae, &c. Habend’ & tenend’ eid’ capellano & successorib’ suis ca-

pellan’ Cantariae praed’ divina in eccles. praed’ ad altare praed’ pro salubri statu,

&c. juxta ordinationem praed’ Rob. in hac parte faciend’ celebrat’ imperpet’, &c.

And afterwards the said Robert Ramsey by his deed indented 10 Junii 1407,

Founded, Ordained, and erected the said Chauntry, and ordained and named

one John Meadowe to be the ﬁrst Chaplain to do the said Divine services;

And further by the said deed granted to the said John Meadowe, the ﬁrst

Chaplain, 10 marks of yearly Rent issuing out of the said house, To have to

him and his Successors Chaplains of the said Chauntry at four usual Feasts

in London to be paid, with clause of distress, to him and his successors; And

further appointed by the same deed, That he himself should present to the

said Chauntry during his life; and after his decease, that Johanna his wife

should present to the same during her life, and after her decease, that the

Parson and Church-wardens of the said Church of St. Magnus, and their

Successors; and afterwards the said John Meadowe died, and after divers va-

cations the said Richard Fowcher was presented to the said Chauntry, and for

the said Rent behind he entered into the said house the door being open, and

took a Cup of the Plaintiff’s for a distress, &c. for which taking the action

was brought, upon which matters the parties have demurred in Law: And this

case was adjourned into the Exchequer Chamber, and there before all the

29. [Ed.: in the sixth year of his reign,]

30. [Ed.: to a certain chaplain celebrating divine service at the altar of the Blessed Mary in the church

of St. Magnus, London, every day, for the wholesome estate of the aforesaid Robert and Joan his wife,

etc., to have and to hold for ever unto the same chaplain and his successors, being chaplains of the aforesaid

chantry and celebrating divine service in the aforesaid church at the aforesaid altar for the wholesome

estate, etc., in accordance with the ordinance to be made by the aforesaid Robert in that behalf, etc.]

Part Ten of the Reports358

Judges of England divers Objections were made against this Licence and Grant.

1. That they were cuidam capellano,

and named none in certain; and when

the King’s Grant is uncertain it is void; as if the King | licenses one to give

20 marks Rent, cuid’ Abbati,

the Grant is void, because it is incertain. 2.

There is not such Chaplain till Robert Ramsey hath named and ordained one,

so that it appeareth that the Grant should be to such a one who is not in rer’

natura;

as if the King give Licence to grant to the Mayor and Commonalty

of Islington, although the Inhabitants of Islington be afterwards incorporated

by the name of Mayor and Commonalty, the Grant is void because there was

no such Corporation at the time of the Grant. 3. It was objected that in this

case the King hath not made any Incorporation, and Incorporation is a thing

to be done only by the King himself; and these words juxta ordination’ per

Rob’ Ramsey ﬁendam,

shall not enable the said Ramsey to make an Incor-

poration, for the King cannot give Licence to any to make an Incorporation,

but the said words shall give him power to make ordinances, ﬁrst touching

Masses and other Divine Services. 2. of what manner of habit he shall be, 3.

to have perpetual succession, scil. elective, presentative, or donative, and that

is the effect of the said words, and not to make a Corporation; and the King’s

Grant shall not be taken by implication; scil. by the words to make an In-

corporation, and also to give Licence to grant the said Rent, for then the King’s

Grant shall enure to two intents. 4. Admitting that there shall be an Incor-

poration by implication; yet the Incorporation ought to be before the Licence,

and here the Licence is before the Incorporation, and therefore it is void. 5.

The Grant ought to have been that the King gave Licence facere & erigere

Cantar’, &c.

and there were not any such words in the Charter; but only

Licence to grant a Rent, &c. cuid’ capellano, &c. 6. The Licence is secundum

ordination’ per R. Ramsey ﬁendam;

and therefore, the King is deceived, be-

cause he cannot have knowledge what ordinance it shall be. 7. It was objected

that the distress was without warrant and void, because the Licence did extend

to grant a Rent onely without mention of any distress. Which objections I

31. [Ed.: to a certain chaplain,]

32. [Ed.: to a certain abbot,]

33. [Ed.: in being;]

34. [Ed.: in accordance with the ordinance to be made by the aforesaid Robert Ramsey,]

35. [Ed.: to make and erect a chantry, etc.]

[27 b]

36. [Ed.: in accordance with ordinance to be made by the aforesaid Robert Ramsey;]

Sutton’s Hospital 359

have here gathered out of the book Reported at length, 2 Hen. 7. 13a, 13b.

and the Reports of Fitz. in 3 Hen. 7. Grant 36, and out of the Record itself.

As to the ﬁrst and second Objections, it was Resolved, That the Grant was

good, for all the Grants of Chauntrys are of such form, scil. cuid. Capellano,

and although there be not such Chaplain at the time it is not to the purpose;

For if the King granteth to the Commonalty of Islington that they shall be

Incorporated of a Mayor & Bayliffs, and that they have power to choose one,

it is good although the Election of the Mayor is future. So Note Reader, a

difference betwixt an estate or interest which none can take without present

capacity, and a power, liberty or Franchise, or thing newly created, which may

take effect in futuro.

As to the 3 it was Resolved, That whereas the King by

his Charter saith cuidam Capellano, it was a sufﬁcient Incorporation; and when

he saith in the Habendum sibi | & successorib’ suis,

the same maketh a sufﬁcient

succession. And so Note Reader, that this Grant of the King doth enure to

three intents, scil. to make an Incorporation, to make a succession, and to

grant a Rent. As to the 4. it was Resolved, That where the Licence to Found

the Chauntry shall be ﬁrst, and to grant after, that is needeth not, for it is not

material which is before, (for the Law shall construe that ﬁrst to the effect

which ought), but here they are simul & semel.

As to the 5, That in the

Licence there were not words of fundare, erigere, facere;

It was Resolved, That

notwithstanding the Grant was good. Nota,

reader from this, That to the

essence of a Chauntry, or other body politic, two things are onely requisite,

scil. an Incorporation and a gift, and not any words of fundare, erigere &

stabilire,

or words to such effect; for no such words were contained in the

grant of Henry the fourth and yet it was adjudged a good Chauntry lawfully

incorporated and founded. And if such words had been requisite and necessary

in Law, the judgment ought to have been given against the Chauntry, because

they were left out in the King’s grant. And thereby it appeareth, that in the

case at bar, they were explanatory and of abundance: which is a judgment in

38. [Ed.: to have unto him and his successors.]

39. [Ed.: at one and the same time.]

40. [Ed.: to found, erect, make;]

41. [Ed.: Note.]

42. [Ed.: to found, erect, and establish,]

[28 a]

37. [Ed.: in the future.]

Part Ten of the Reports360

the point, by the resolution of all the Judges in the Exchequer Chamber. As

to the sixth point, it was resolved that these words, secundum ordinationem

per R. Ramsey ﬁendam,

import sufﬁcient certainty, scil. to make Ramsey to

ordain, 1. what Masses and other divine services shall be celebrated, 2. of what

habit or order the Chaplain shall be, and 3. whether he shall be elective, pre-

sentative, or donative. And by force of these words Ramsey in the case did

ordain the same to be presentative by the Rector of the parish of St. Magnus

for ever. As to the 7. objection, It appeareth by the Report of Fitzherbert ubi

supra,

that the opinion of the two chief Justices, Hussey and Brian and

Starkey, chief Baron, and Fairfax Justice, was, That the distress was without

warrant, but Townshend conceived it to be good. But inspecto recordo,

it was

adjudged that the distress was good and well warranted by the grant. For the

Chauntry Priest did distrain in the said house for the Rent, and his distress

was adjudged lawful, and the Plaintiff barred, And the reasons, as I conceive,

were, because the King’s Charters, made for the erection of pious and charitable

works shall be always taken in the most favourable and beneﬁcial sense; and

the most beneﬁcial rent that a man can grant is a rent charge. 2. The distress

is a necessary incident to the Rent, for without that the Grantee shall be

without remedy: Verba sunt accipienda cum effectu,

and words are to be taken

with the effect. 2 Edw. 3. 3. Which case I have cited at large, because it is |

notable and pertinent, and stronger (as I conceive) then the case in question.

Secondly, power is given to Sutton “to place a Master of the said Hospital.

3. At all times hereafter to place, erect, found and establish in the said house,

&c. one Free-school for instructing youth,” (which well expoundeth the pre-

cedent words concerning the Hospital, for these words extend onely to make

ﬁt and to ﬁnish and furnish a Grammar-school within the said Charter-house)

“and a learned Preacher to teach all in the word of God. 4. We do by these

presents, ordain, constitute, limit and appoint, That the said House and other

the premises shall from henceforth be ever hereafter named incorporated and

called the Hospital of King James, founded in the Charter-house, within the

County of Middlesex, at the humble petition and at the only costs and charges

43. [Ed.: in accordance with the ordinance to be made by Robert Ramsey,]

44. [Ed.: in the text above,]

45. [Ed.: the record being inspected,]

46. [Ed.: words are to be taken with the effect,]

[28 b]

The 4

branch of

the Charter

the answer

to the 3

objection

Antea 23.b.

Sutton’s Hospital 361

of Thomas Sutton Esquire And the same Hospital and Free-school by the

name of the Hospital of King James, &c. We do ﬁrmly by these presents erect,

found, and establish and conﬁrme, to have continuance for ever.” By this

clause, the King in praesenti

giveth the name of the Hospital, but as it ap-

peareth before, Sutton hath devised it, and hath sued to the King to name it

accordingly; and that the name of the incorporation itself. (scil. At the humble

suit of Thomas Sutton,) doth import so that as it is said in 38 E.3.14.b. and

21 E.4.56a, 56b. The name of incorporation is as a proper name or name of

baptism: In this case Sutton as God-father giveth the name, and by the same

name the King doth baptize the incorporation, By which it appeareth that

the objection, That the King cannot give a name to an house which is the

Inheritance of another, is not of any value, here Sutton has consented and

assented to it, and all the same is done at his humble suit. And this objection

doth tend to the dissolution of all ancient Deans and Chapters: For at ﬁrst,

as appeareth in the third part of my Reports in the case of the Dean and Chapter

of Norwich, All the possessions were to the Bishop, and yet by his assent the

Dean and Chapter were incorporate and named of the Cathedral Church,

which did then belong to the Bishop only; and afterwards a certain portion

was assigned to the Chapter; So that the Chapter was before that they had

any possessions; And that is the reason that of common right, the Bishop is

Patron of the Prebends that because their possessions were derived from the

Bishop, and therefore he was Patron and Founder: And therewith agree 17 E.

3. 40ab., 25 Ass. pl. 8., 10 E. 3. 10., 50 E. 3. 26b., 15 Hen. 7. 11. So that at

ﬁrst the Dean and Chapter were by the assent of the | Bishop incorporated

and named of the Church Cathedral of the Bishop. And it was said, that

questions moved in the Exchequer used to be like spirits which may be raised

with much ease, but suppressed and vanquished with much difﬁculty; but

these questions were like ruinous buildings, more easily thrown down then

raised and set up. And all the arguments which have been made against this

honourable work of charity, are hatched out of meer conceit and invention,

without any ground of Law, and such which have any colour were utterly

mistaken. And as to the fourth Exception, That the place of every corporation

ought to be certain; and Sutton sueth and the King licenceth Sutton to found,

erect, &c. an Hospital “at or in the Charter-house,” which was incertain; To

47. [Ed.: in the present.]

[29 a]

Answer to

the 4 ob-

jection An-

tea 23.b.

Part Ten of the Reports362

that the Charter expressly answereth That the King by this clause doth ordain,

&c. “That the said House and other the premises, shall from henceforth for

ever hereafter be, remain, &c. and shall ever hereafter be named and called

the Hospital of King James, founded in the Charter house:” So that all the

house and premises are baptized by the King by the name of the Hospital,

&c. in which is no shadow of incertainty, and therefore Sutton as to the Licence

for the mechanical part, which (as has been said) was abundant, to get and

ﬁnish all or any part of the house for an Hospital, &c. yet all the house itself,

Orchards and Gardens &c. are named by the name of the Hospital. And it

was observed, That the King by this clause not onely nameth the said house

to be an Hospital; but by the name of the Hospital to be erected, founded,

established, and conﬁrmed; so that the King nameth it, and leaves the me-

chanical part to Sutton to perform. And of the same importance is the other

Objection, That a known name is not sufﬁcient to found an Hospital, but it

ought to be described by metes and bounds, as in divers precedents hath been

used; for it appearth in Willim de Londres’ case, 2 E. 3. 36b. Adam brought a

Scire facias

against Willim de Londres of the manor of E. the Defendant

pleaded that he himself is Master of the Hospital of St. Bartholomew and so

beareth the name of dignity not named judgment of the writ: to which the

Plaintiff replied That which the Defendant Calleth an Hospital is the Manor

of East Smithﬁeld, and was a Manor at the time of the ﬁne levied: And it was

holden by the Court, That by this Writ he ought to have the Manor, as the

Manor was at the time of the ﬁne levied; And whereas the manor was made

an Hospital after the ﬁne, by this suit he is to defeat your estate and your

name, and accordingly it was ruled that the Writ was good. Which proveth

that a manor (which imports more certainty and variety than an house known

by a certain name) may be created into an Hospital. And in 15 Ass. pl. 8. John

de Derbie’s case, A Manor made Corpus praebend’.

The ﬁfth Clause stands

upon two Branches: “1. for the better | maintenance and continuance of the

said Hospital, &c. and that the same may take the better effect, and that the

Revenues may be the better governed and imployed there shall be sixteen

Governours, and names ﬁfteen of them by express name, and such person as

from time to time shall be Master, to be the ﬁrst and present governors. 2.

48. [Ed.: Writ to enforce a judgment or other matter of record.]

49. [Ed.: A prebendal corporation; usually a charitably or ecclesiastically endowed corporation.]

The 5

clause of

the Char-

ter.

[29 b]

Sutton’s Hospital 363

And the said persons and their successors, by the name of Governours of the

Lands, &c. one body incorporate and politick, by that name to have perpetual

succession for ever to endure, We do by these presents for ever hereafter really

and fully incorporate,” and the words of this clause are verba operativa.

And

it is to know, That every Corporation or Incorporation, or body Politick and

Incorporate, who are all one, either stand upon one sole person, as the King,

Bishop, Parson, &c. or aggregate of many, as Mayor and Commonalty, Dean

and Chapter, &c. and these are in the Civil Law are called Universitas sive

Collegium.

Now it is to see what things are of the essence of a Corporation.

1. Lawful authority of Incorporation; and that may be by four means, scil. by

the Common Law, as the King himself, &c. by authority of Parliament; by

the King’s Charter (as in this case) and by prescription. The 2. which is of

the essence of the Incorporation, are persons to be incorporated, and that in

two manners, persons natural, or bodies incorporate and political. 3. A name

by which they are Incorporated; as in this case Governors of the Lands. &c.

4. Of a place, for without a place no Incorporation can be made; and here

the place is the Charter-house in the County of Middlesex. Vide 3 Hen. 6

Det. 20. 17 Edw. 3. 59b. & 45 Edw. 3. 27. 5. By words sufﬁcient in Law, but

not restrained to any certain, legal and prescript form of words. And for as

much as good pleading is lapis Lydius,

the touch-stone of the true sense and

knowledge of the Common law; the form of pleading of an Incorporation by

prescription is to be observed, for in such case he ought to prescribe in every

thing which is of the essence of the Incorporation. In the Book of Entries,

Quare Impedit 1. the pleading is, Quoddam Hospitale Sanctae Mariae de Bristow

de uno magistro, & conventu a toto tempore, &c. incorporat’ fuerunt per nomen

Magistri & Conventus Hospitalis Sanct’ Mariae de Bristow:

and there it ap-

peareth that: there they purchased Lands and Tenements, and were impleaded

without any prescription for the one or the other, because they are incorporated

by prescription by a certain name; then to implead and be impleaded, to grant

and purchase, are incidents to a body incorporate. M. 15 Hen. 7. Rot. 522. in

the Common Pleas there the prescription is Custos & vicarii collegii vicariorum

50. [Ed.: operative words.]

51. [Ed.: a university or college (i.e. corporation).]

52. [Ed.: a touchstone,]

53. [Ed.: a certain hospital of St. Mary of Bristol for a master and convent for all time, etc. were

incorporated by the name of the Master and Convent of the Hospital of St. Mary of Bristol.]

Verba oper-

ativa. The

division of

corpora-

tions.

What

things are

the essence

of a corpo-

ration

Part Ten of the Reports364

in choro | Hereford sunt & a toto tempore, &c. fuerunt incorporat’ per nomen

Custodis et Vicar’ Collegii Vicariorum in Choro Hereford’:

and there also they

purchased and were impleaded as incidents to the incorporation. Lib’ Intrat’

tit’ Ass. fol. 68. Magister, fratres, et sorores fraternitatis sive guildae novem or-

dinum sanctorum Angelorum juxta Brainford

brought an assise: the tenant

pleads, quod in villa de Brainford est quaedam fraternitas incorporata infra tem-

pus memoriae de magistro, fratribus et sororibus novem ordinum Angelorum juxta

Brainford Bridge, absque hoc quod habetur aliqua talis fraternitas: which is re-

ported in 22 Edw. 4. 34a. where the tenant at ﬁrst pleaded, No such incor-

poration, and if it be not found, and naught because two bars, and then he

pleaded the said plea, quod est quaedam fraternitas incorporata, &c.

and yet

there they were infeoffed by Bocking upon condition, and capable thereof as

incident to a corporation. And therewith agreeth the Bishop of Exeter’s case in

the book of Entries, 455. 2 Hen. 7. 17b. the Corporation of Godmanchester

34 Hen. 6 27a, 27b. in the case of the Hospital of Wycombe. v. 26 Hen. 8 1.

In 9 E. 4. 20a. The Master of the Hospital of Burton S. Lazar prescribed,

quod ipse et omnes praedecessores sui magistri hospitalis praedict’ a toto tempore,

&c. nominati et cogniti fuerunt, &c. tam per nomen Magistri hospitalis Sancti

Lazari de Burton, de ordine Sancti Lazari de Jerusalem in Angliaˆ, quam per

nomen Magistri de Burton Sancti Lazari de Jerusalem in Angliaˆ:

By which it

appeareth that this word incorporo, or any derivation thereof is not in Law

requisite to create an incorporation, but other equivalent words are sufﬁcient,

as nominati & cogniti:

and therewith agreeth 44 Ass. p. 9. in The Prior of

Plimpton’s case, and 4 Edw. 4. 7b. in the case of the Abbot of Glastenbury,

54. [Ed.: The warden and vicars of the college of vicars in the choir of Hereford are, and since time

immemorial were, incorporated by the name of the Warden and Vicars of the College of Vicars in the

Choir of Hereford:]

55. [Ed.: The master, brethren and sisters of the fraternity or guild of the nine orders of holy angels

next Brainford....]

56. [Ed.: that in the vill of Brainford there is a certain fraternity, incorporated within time of memory,

of a master, brethren and sisters of the nine orders of angels next Brainford Bridge, without this that there

is any such fraternity: (as the plaintiffs allege). . . . that there is a certain fraternity incorporated, etc.]

57. [Ed.: that he and all his predecessors being masters of the aforesaid hospital from time immemorial

etc. were named and known etc. both by the name of master of the hospital of St Lazarus of Burton of

the order of St Lazarus of Jerusalem in England and also by the name of master of Burton St Lazars of

Jerusalem in England:]

58. [Ed.: named and known:]

[30 a]

Sutton’s Hospital 365

and in none of these Books or Records was any mention made of these words,

fundo, erigo, &c.

or any other like words; for as it hath been said, they are

onely declaratory words, and the effect of them may be done by the owner

of the land without any grant. And it was well observed, that in old time the

Inhabitants or Burgesses of a Town or Borough were incorporated when the

King granted to them to have Gildam Mercatoriam

in the Register 219 b.

where the Writ doth recite, quod cum inter caeteras libertates civibus civitatis

Winton’ per cartas progenitorum nostrorum quondam Reguˆm Angliae quas per

cartam nostram conﬁrmavimus, concessum sit eisdem, quod nullus eorum qui

fuerunt infra gildam mercatoriam placitet extra murum, &c.

where guilda sig-

niﬁes contubernium seu fraternitas incorporata;

And upon that the place of

their meetings and assemblies was called the Guild-hall. And I have seen | the

Charter made by King H. 1. Textoribus Lond’,

by which he granteth to them

that they shall have Gildam Mercatoriam,

and a conﬁrmation of it made by

King H. 2. by which Charters they were incorporated. And where the opinion

of Fineux in 13 H. 8. 3. b. and of Prisot in 39 H. 6. 13. b. was cited at the barre,

that a corporation aggregate of many cannot be a body only without a Head;

the same was utterly denied: For at ﬁrst most part of the Corporations were

a body without any head by force of these words Gilda Mercatoria. And that

a Corporation aggregate of many may be without a head, see 18 Edw. 2. Annuity

48. 5 Edw. 3. 11. b. 22 Ass. 67. 29 Ass. 17. 2 Hen. 6. 9. 18 Hen. 6. 16ab. 19 Hen.

6. 80. 21 Edw. 4. 55b. 56ab. 7 Edw. 4. 14ab. 2 Maria Dyer 100. And it appeareth

by Record that Paulinus the ﬁrst Archbishop of York, after he had baptised

the inhabitants of Nottingham-shire in the River of Trent, founded a Col-

legiate Church in Southwell of Prebendaries, consecrated to the Virgin Mary,

which continueth a body without a head even to this day. See for this word

Guild or Fraternity in the book of Entries, 68. 37 Edw. 3. cap. 5. 15 R. 2. c.

5. the Statute of 1 Edw. 6. of Chantries. In which three things were observed,

59. [Ed.: I found, erect, etc.]

60. [Ed.: a guild merchant.]

61. [Ed.: whereas among other liberties [granted] to the citizens of the city of Winchester by the charters

of our forebears, formerly kings of England, which by our charter we have conﬁrmed, it is granted to them

that none of them who were in the guild merchant should plead outside the walls, etc.]

62. [Ed.: an incorporated company or fraternity.]

63. [Ed.: to the dyers of London.]

64. [Ed.: a guild merchant.]

[30 b]

Part Ten of the Reports366

1. how prudens antiquitas

did always comprehend much matter in a narrow

room: 2. that to the creation of an Incorporation the Law had not restrained

itself to any prescript and incompatible words: 3. that when a Corporation is

duly created, all other incidents are tacite

annexed to it. And for direct Au-

thority in this point in 22 E. 4. Grants 30. it is holden by Brian chief Justice

and Choke, That a Corporation is sufﬁcient without words, to implead or be

impleaded, &c. and therefore divers clauses subsequent in the Charters are

not of necessity but onely declaratory, and might well have been left out; as

1. by the same to have authority, ability, and capacity to purchase &c. but no

clause is added that they may alien, &c. and it needeth not, for it is incident:

2. To sue and be sued, implead and be impleaded, 3. To have a Seal, &c. that

is also declaratory, for when they are incorporated they may make or use what

seal they will: 4. To restrain them to alien or demise but in certain form; that

is an Ordinance testifying the Kings desire, but it is but a precept which doth

not bind in Law: 5. The survivors shall be the Corporation, that is a good

clause to oust all doubts and questions which might arise, the number being

certain: 6. If the Revenues encrease, the same shall be employed to encrease

the number of poor, &c. that is but explanatory as appeareth by the Case of

Thetford School in the 8 part of my Reports, f. 131 ab.: 7. To be visited by the

Governors, &c. the same is also explanatory; | For in this case the poore which

shall be resident in the house of the Charter-house shall not be incorporated,

but certain persons in whom the possessions are vested, who shall not be

resident there but onely to have the general, government and ordering of the

poor therein; so that this Case is out of the Statutes of 2 Hen. 5 c.l. and 14

Eliz. cap 5. for if no visitor had been appointed by the Charter, the Governors

should visit; and the books in 8 E. 3. 28. & 8 Ass. 29. do not gainsay it, where

is holden, That if the Hospital be Lay, the Patron shall visit, and if Spiritual,

the Bishop shall visit, so that every Hospital is visitable; it is true, but in the

Case at the barre the poor of the Hospital are not incorporated, and so no

legal hospital. 8. To make Ordinances; the same is requisite for the well or-

dering and governmenting of the poor, &c. but not to the essence of the

incorporation. 9. The exemption from the Ordinary is but declaratory, for

being a Lay-incorporation he neither can nor ought to visit. 10. The licence

65. [Ed.: prudent antiquity.]

66. [Ed.: tacitly.]

[31 a]

Sutton’s Hospital 367

to purchase in Mortmain is necessary for the maintenance and support of the

poor; for without Revenues they cannot live, and without a licence in Mort-

main they cannot lawfully purchase Revenues, and yet it is not of the essence

of the Corporation, for the Corporation is perfect without the same; so that

by that what hath been said, it appeareth what things in genere

are requisite

to a complete body incorporate, and which are verba operativa

in this case

(which are necessary to be known in every case) the resolution of which it

appeareth how necessary it is, that the Law and Experience joyn in hands

together.

As to the ﬁfth Objection, That no incorporation was presently made as the

Letters Patents import, nor can be till the Master was named, and therefore

the Charter is repugnant and void. To that it was answered, That this Objection

doth extend to the overthrowing of a great number of Incorporations; for

when a Corporation is created by Letters Patents, by the same Patent power

is given to them to a choose, master Aldermen, or Bailiffs, or Governours, or

the like, and yet they are presently incorporated by the same Letters Patents;

and therewith expresly agreeth Plo. Com. 592. in the Cook’s case, 21 E. 4. 59.

& 3 H. 7. Grant. 36. vouched at large before to the ﬁrst and second Objections.

Vide 32 E. 3. Aid. 39. 13 E. 4. 8. 16 E. 3. Grant 65. And it is true it is presently

by the Letters Patents a Corporation in abstracto,

but not in Concreto,

till

the naming of the Master. And a Case adjudged in the King’s Bench, Mich.

34 & 35 El. rott. 172. coram reg.

was strongly urged: the governours of the

possessions, revenues, and goods Hospitalis Ed. regis Angliae Sexti

brought

a bill of debt against Elias Germaine. The Defendant pleaded, That King

Edward the sixth | reciting the care of the city of London for the relief of poor

people and infants, concessit Majori, Civib’ et Communitati Lond’ Domum man-

sionalem rocat’ Bridewell, &c.

and there the King declareth his intent, that

Bridewell shall be founded, erected, &c. an Hospital for the said poor, &c.

idem Rex ut intentio sua melior’ capiat effectum,

and to the end the Lands

67. [Ed.: in kind.]

68. [Ed.: operative words.]

69. [Ed.: in the abstract,]

70. [Ed.: in the concrete,]

71. [Ed.: before the king (i.e. in the King’s Bench).]

72. [Ed.: of the hospital of King Edward VI of England.]

73. [Ed.: granted to the mayor, citizens and commonalty of London the mansion house called Bridewell,

etc.].

Answer to

the 5th

Objection

Antea 23b.

[31 b]

74. [Ed.: the same king, so that his intention might take better effect.]

Part Ten of the Reports368

which shall be granted to them shall be better governed, per easd’ literas patentes

voluit et ordinavit quod Hosp’ praed’ cum sic fundat’ erect’ et stabilit’ fuer’ Hos-

pital’ E. 6. Reg’ Angl. Christi Bridewell, et S. Tho. Apost’ nominetur et appelletur

imperpetuum, et quod major’ communitas et cives civitat’ praed’ forent Guber-

natores, &c. et quod iidem Gubern’ de caetero essent et forent un’ corpus corporat’

per nomen Gubernat’ possess’ reventionum et bona’ hospital E. Reg’ Angl’ Christi

Bridew. et St. Th’ Apost’, &c.

and further pleaded, quod nullum hospital’ quale

in eisd’ lit’ pat’ mentionat’ post confect’ praed’ literarum pat’ sic fundat’, erect’ et

stabilit’ fuit, &c.

Upon which the Plaintiff did demurre in law; and upon

argument at the barre and bench it was adjudged for the plaintiff. For the

said Ordinance, that the said House shall be an Hospital cum sic fundat’ &c.

fuer’

is intended onely, of the mechanical part of an actual Hospital, scil. of

the ﬁtting and ﬁnishing of the Hospital, house with poor, &c. And this Hos-

pital in intention onely is sufﬁcient to support the name of a Corporation,

and the words de praesenti, scil. quod iid’ gubernat’ de caetero essent et forent

un’ corpus corporat’ per nomen, &c.

in law doth incorporate them presently,

and shall not stay till there be an actual Hospital, or till the house be ﬁtted

or furnished, which is the mechanical part of the Hospital scil. for the hab-

itation of the poor; which is the ﬁrst thing to be observed by the said judgment,

vide 32 E. 3. Aid. 39. King Edward the third newly founded a Priory and

granted to the Monks that they might chuse a Prior, and before that the Prior

was chosen W. made a lease to one A. for life, the remainder to the Prior and

Convent; and in a Scire facias, against A. he pleaded, that W. was seised in

Fee and leased to A. the remainder to the Prior and Convent who were newly

founded by the King; and because there was not yet a Prior, the right was in

75. [Ed.: by the same letters patent willed and ordained that when the aforesaid hospital was so founded,

erected and established, it should be named and called for ever King Edward VI of England’s Hospital of

Christ of Bridewell and St. Thomas the Apostle, and that the mayor, commonalty and citizens of the

aforesaid city should be governors, etc., and that the same governors should henceforth be a body corporate

by the name of the Governors of the Possessions, Revenues and Goods of King Edward VI of England’s

Hospital of Christ, Bridewell, and of St. Thomas the Apostle, etc.]

76. [Ed.: (and further pleaded) that no such hospital as is mentioned in the same letters patent was so

founded, erected and established after the making of the aforesaid letters patent, etc.]

77. [Ed.: when it was so founded, etc.]

78. [Ed.: of the present (tense), namely, that the same governors henceforth be a body corporate by

the name etc.]

Sutton’s Hospital 369

the King until, and prayed aid of the King and the aid by award was granted,

and a Writ of Procedend’

came, and then A. the Defendant shewed, That

after the aid granted there was a Prior made and ordained in whom the right

remained, and prayed in aid of the Prior; he was ousted of the aid because

he had aid before, which proveth that the remainder in such case is good. The

second thing to be observed in the said Judgment in the said case of The

Hospital of Bridewell, is, that one corporation may be made out of another

corporation, sc. the major Citizens, and Commonalty of London, are created

in their politick capacity Governours, &c. of the Hospital of Bridewell, 9 E.

3. 18. b. many corporations may be created one out of another, as the Dean

and Chapter of Lincoln are a joynt corporation, the Dean by himself is in-

corporated, and every of the Prebends is incorporate by himself, and in a case

which is so manifest this shall sufﬁce.

| And as to the sixth Objection, That till an Hospital, be founded that no

incorporation can be, for then there shall be idle and mathematical governours.

It was answered, That there was an Hospital in potestate,

and an hospital in

exec’;

also an Hospital, in potentia

and an Hospital, actu,

An Hospital,

re,

and an Hospital, nomine.

And as to the creation of an incorporation,

an Hospital potestate, potentia, seu nomine

sufﬁceth; as one may by Letters

Patents be Governour of an Army before there be an army. Vide 17 H. 6.

Protection 56: And the same agreeth with Philosophy and reason. Aristotle

lib. 3. De generatione saith, quod caro gignit carnem;

and that is true in potestate

but not actu; and so any fowl so soon as it is hatcht is volatilis a volando, quia

habet potest’ volandi quanquam act’ volandi non habet:

So a child as soon as

he is born is said rationalis,

because he hath potestatem, although he hath

79. [Ed.: Writ requiring an inferior court to render an unspeciﬁed judgement.]

80. [Ed.: in authority,]

81. [Ed.: in execution.]

82. [Ed.: in possibility.]

83. [Ed.: by impulse,]

84. [Ed.: in reality,]

85. [Ed.: in name.]

86. [Ed.: in authority, in possibility, or in name.]

87. [Ed.: that ﬂesh begets ﬂesh;]

88. [Ed.: volatilis (fowl), from the word volando (ﬂying), because it has the potential ability to ﬂy even

though it has not yet the act of ﬂight:]

89. [Ed.: rational,]

Note.

[32 a]

Answer to

the 6th

Objection

Antea 23b.

Part Ten of the Reports370

not, and perhaps never shall have rationem actu.

And it is also proved by

old Records, and our books also, as in the Book of Enteries. Tit. Annuit 32.

33. Rex H. 5. quandam domum in quodam loco sive solo apud Shene (and ab-

butteth and boundeth the soil) quam vocari et nuncupari voluit Domum Jesu

de Bethlem de Shene, duxit ordinand’ et fundand’ et domum illam quant’ in ipso

fuit fundavit et erexit (which was but a nominative house, for none was then

built) et idcirco locum et sol’ praed’ de Shene ut primar’ fundationem dedit, &c.

by which it appeareth that a void place or soil in which an house is intended

to be built, may by the King’s Charter be named a House, and this nominative

house shall be sufﬁcient (as there it was,) to support the name of the incor-

poration. Also it appeareth by Matthew Paris 64, and Polydore Virg’ Chronic’

Chronicor’, &c.

The Hospital of St. Johns of Jerusalem in England was in-

corporated in 14 Hen. 1. of the Templers, by the name of Magister milit’ Templi

et confratres sui in Anglia in an’

24 H. 1. and yet neither the fabrick of the

Temple, nor the house of the hospital, was founded and builded, sed regnante

H. 2. of the one Jordan Biset homo pius et bene nummatus a holy marshall

monied;

and of the other Heraclius Patriarch of Jerusalem were Founders.

Vide Camden’s Britannia 311, which proveth that a void place to support the

name of a corporation may by the King’s Charter be named an Hospital or

Temple, and it is not requisite, that there be always truth in the name of the

Corporation either of an Hospital or of any other body politick. King Henry

the eighth, in the second year of his reign according to the Will of King Henry

the seventh granted to divers Bishops, Thomas Earl, of Arundel, &c. John

Fineux, and Robert Read, Chief Justices, John Young, Master of the Rolls,

&c. who were Executors of King Henry the seventh quandam peciam terrae

vocat’ le Savoy

in the parishes of Saint Clements, and St. Mary le Strand ad

intentionem quod iidem quoddam hospital’, in et super praed’ peciam terrae

90. [Ed.: reason by impulse.]

91. [Ed.: King Henry V caused to be ordained and founded a certain house in a certain place or piece

of soil at Shene which he wished to be called God’s House of Bethlehem of Shene, and founded and erected

that house as far as he could...andforthat purpose gave the place and soil of Shene aforesaid as the ﬁrst

foundation, etc.]

92. [Ed.: Chronicle of Chronicles.]

93. [Ed.: Master of the Knights of the Temple and his Brethren in England, in the year.]

94. [Ed.: but in the reign of.]

95. [Ed.: Jordan Biset, a pious and well moneyed man.]

96. [Ed.: a certain piece of land called the Savoy.]

Sutton’s Hospital 371

vocat’ Savoy erigere, fundare et estabilire possint,

4 H. 8. The King licenseth

them quodd’ Hospit’ de uno magistro et 5 capellanis super praedict’ peciam terr’

vocat’ le Savoy fundare, & Hospitale cum sic fundation’ fuerit,

shall be incor-

porated by the name Magister & Capallanorum | Hospital’ H. nuper regis Angliae

7. de Savoy,

and yet in truth it was not an Hospital, in the time of Henry

the seventh but in intention onely, and yet the King in his Charter doth call

it the Hospital of King Henry the seventh. And the same was admitted to be

a good name of incorporation by all those who argued the case betwixt Mariat

et Pascall upon the incorporation of the said Hospital, Trin. 30 Eliz. in the

Exchequer, where the Case was adjudged; or in the Exchequer chamber, where

it depended by Writ of Error. And therefore in 44 E. 3. 16. b. Regist. 23. there

the Corporation was Prior Hosp’ S. Johan’ Jerusal. in Anglia:

100

and so 9 E.

4. 6. Hospitale S. Lazari de Jerusal’ in Angliaˆ, which sufﬁceth for, the name

of the Corporation; although it be but a ﬁction, scil. that either S. John (which

was S. John the Evangelist) or Jerusalem was situate in England. So Magistri

milit’ Templi Jerusal’ in Anglia;

101

and in the Register, Prior et frat’ Sancti

Mariae de monte Carmeli in Anglia

102

So I have seen a Record, That Catharine

the ﬁrst wife of King Henry the eighth had a licence to found a Chauntry by

the name of the Chauntry de monte Calvarie extra Algate London.

103

And it

is great reason that an Hospital in expectancy or intendment, or nomination,

shall be sufﬁcient to support the name of an Incorporation, when the Cor-

poration itself is onely in abstracto,

104

and resteth onely in intendment and

consideration of the Law; for a Corporation aggregate of many is invisible,

immortal, & resteth only in intendment and consideration of the Law; and

therefore in 39 H. 6. 13b. 14 a. Dean and Chapter cannot have predecessor

nor successor. 21 E. 4. 27. & 30 E. 3. 15. 6. They may not commit treason,

nor be outlawed, nor excommunicate, for they have no souls, neither can they

97. [Ed.: to the intent that they might erect, found and establish a certain hospital in and upon the

aforesaid piece of land called the Savoy,]

98. [Ed.: to found a certain hospital of one master and ﬁve chaplains upon the aforesaid piece of land

called the Savoy, and when the hospital was so founded,]

99. [Ed.: the Master and Chaplains of the Hospital of the late King Henry VII of England of Savoy.]

100. [Ed.: prior of the Hospital of St. John of Jerusalem in England:]

101. [Ed.: Master of the Knights of the Temple of Jerusalem in England.]

102. [Ed.: Prior and brethren of St. Mary of Mount Carmel in England.]

103. [Ed.: of Mount Calvary without Aldgate, London.]

104. [Ed.: in the abstract,]

[32 b]

Part Ten of the Reports372

appear in person, but by Attorney 33 H. 8. Br. Fealty. A Corporation aggregate

of many cannot do fealty, for an invisible body cannot be in person, nor can

swear, Plow. Com. 213, and The Lord Berkley’s Case 245, it is not subject to

imbecilities, or death of the natural, body, and divers other cases. A thing

which is not in esse but in apparant expectancy is regarded in Law, as a Bishop

who is elect before he be consecrated, an infant in his mother’s belly before

his birth, &c. 5 E. 2. Bre. 80. 8 E. 2. voucher 237. 38 E. 3. 30. 41 E. 3. 5. 11

E. 3. Quare Impedit 158. So for the name of a Corporation it is sufﬁcient to

name a place in England by the name of Jerusalem, mount Calvary, mount

Carmel, Bethlehem, &c. a fortiori,

105

the name of a spacious and goodly house

well and actually buildeth by the name of an Hospital is sufﬁcient; for the

same importeth truth and certainty. By which it appeareth, that in the case

at barre there was a lawful incorporation of the Governours, &c. created and

instituted by the King’s Charter, and by consequence as well any person in

England, as Sutton, might give and grant to them before any foundation laid,

or to be laid by Sutton (as it was imagined he ought to have done before they

were capable, &c.) but the same is clearly answered and confuted before; and

in truth haec recitasse, est confutasse.

106

| As to the seventh Objection, it is to know that there are two manner of

Foundations, one fundatio incipiens,

107

the other fundatio perﬁciens,

108

and

therefore quatenus ad capacitatem, et habilitatem,

109

the incorporation is meta-

phorically called the foundation, for that is the beginning, as a foundation

quasi fundamentum capacitatis,

110

preceding the whole. And therefore in 21

H. 6. 4a. a Writ was brought against John Arden, Abbot of S. John Baptist

of Colchester; the Defendant pleaded, that before time of memory foundation

was made of the same place per nomen Abbat. eccl’ monast’ de S. Joh’ de Col-

chester, &c.

111

where Foundation is taken for Incorporation, 38 E. 3. 14. 38 E.

3. 28a. 20 H. 6. 27a. & 18 H. 6. 16a. in The Dean and Canons of Windsor’s

Case, and divers other books agree with the same, Sed quatenus ad dotati-

105. [Ed.: so much the more so, or it follows that,]

106. [Ed.: to recite this is to confute it.]

107. [Ed.: beginning foundation,]

108. [Ed.: perfecting foundation,]

109. [Ed.: as to the capacity and ability,]

110. [Ed.: as it were a foundation of capacity.]

111. [Ed.: by the name of the abbot of the monastery of St John of Colchester, etc.]

[33 a]

Answer to

the 7th ob-

jection An-

tea. 23b.

Sutton’s Hospital 373

onem,

112

the ﬁrst giving of the Revenues is called the Foundation, and who

giveth the same is the Founder in law, for proprie, fundatio est quasi fundi

datio,

113

and the ﬁrst gift is fundamentum dotationis seu collationis, et appel-

latione fundi aediﬁcium et ager continentur;

114

and that is proved by the Statute

of West. 2. c. 41. Si Abbates, Priores, Custodes Hospital’ et aliarum domorum

religiosarum fundatarum ab ipso Rege vel a progenitoribus suis alienaver’ vel de

caetero tenem’ domibus ipsis ab ipso vel a progenitoribus suis collata, &c.

115

which was observed, that in respect of tenements collated or given by the

King, the house was said to be founded by the King, but more fully in the

clause following in the said Act, Si autem domus illa a comite, barone, vel ab

aliis fundata fuerit, habeat ille a quo, &c. tenement’ sic alienat’ collat’ fuer’ br’

e ad recuperand’, &c.

116

where the collation or gift of the Tenements is called

the Foundation. And where the Founder bringeth the said Writ de contra

formam collationis,

117

the Writ of Praec’ quod reddat mesuag’ quod eid’ domui

collat’ fuer’,

118

vide 9 H. 7. 26. F. N. B. 211. Old N. B. 142. 38 Ass. p. 22. He

who giveth the ﬁrst lands is the Founder, quia fundare in that sense is nothing

else but fundum dare,

119

and therewith agreeth 14 E. 3. Corrodie 5. In a Writ

of Prohibition, where a common person is Founder of an Hospital, the writ

as appeareth in the Regis 41a. saith, Hospitale Sancti Egidii leprosorum de

Burton per antecessor’ R. ﬁlii I. ad sustentation’ leprosorum et aliorum pauper’

et inﬁrmor’ ibid’ totum in temporal’ et nihil in spiritual’ fundat’ existit,

120

and

the like Writ where the King is Founder, cum hospitale nostr’ sanctor’ Inno-

centium juxta Lincoln’ de fundatione progenitor’ nostror’ Reguˆm Angliae, &c. de

terris et possessionibus pro sustentatione pauper’ et inﬁrmor’ in eod’ hospital’ de-

112. [Ed.: but with respect to the endowment,]

113. [Ed.: properly, a foundation is as it were the giving of a fundus, (piece of ground).]

114. [Ed.: the foundation of the endowment or collation, and by the name of fundus is contained the

building and the ﬁeld;]

115. [Ed.: If abbots, priors, keepers of hospitals and of other religious houses founded by the king himself

or his forebears should henceforth alienate the tenements collated to them by himself or his forebears, etc.]

116. [Ed.: but if the house was founded by an earl, baron, or other persons, the person by whom, etc.

the tenement so alienated was collated shall have a writ to recover it, etc.]

117. [Ed.: A writ to recover a gift given to a monastery for charitable purposes and used otherwise.]

118. [Ed.: command (the defendant) that he render (to the demandant) the messuage which was collated

to the same house.]

119. [Ed.: because to found [in that sense giveth nothing else but] a fundus (piece of ground).]

120. [Ed.: The hospital of St Giles of Burton Lazars was founded by the ancestors of R., son of J., for

the support of lepers and other poor and sick people there, as wholly temporal and in no way spiritual.]

Part Ten of the Reports374

gentium dotatum existat:

121

In which it was observed, that where the ﬁrst Writ

saith fundat’ this Writ calleth it dotat,

122

39 E. 3. 17. The Abbot of Lyra brought

a Scire facias against the Dean of Woborn, where the Dean said he held of

the Patronage (that is of the King’s Foundation) and prayed aid of him, and

had aid; and there came a Writ of Procedendo, and it was challenged because

the Writ said of the Patronage | and not of the Collation, and it was taken

all one, 33 E. 3. Aid. 103. The Dean of Stafford’s case, the Deanry is said to be

of the Foundation, and a little after the King’s collation 8 Edw. 3. 56. in Sirach’s

Case, by the foundation the land is amortised, Vide 4 Edw. 3. Ass. 177. 21 Edw.

3. 60a. 24 Edw. 3. 33. 34a. 44 Edw. 3. 23. 44 Edw. 3. 11.b. 2 Edw. 3. 28. The

Earl of Richmond’s case, 6 Hen. 4, 5. 7 Edw. 4. 12. And therefore it was resolved,

That if the King had incorporated the poor of the said Hospitall, Sutton need

not have made any instrument comprehending any Foundation or erection,

&c. But his gift of the land being the ﬁrst act had made him Founder, and

the very ﬁrst donation is all the Foundation which is requisite in Law; and

to the erection of an Hospital, &c. there is not in law any thing requisite, but

incorporation and donation. And in the Report at large I have omitted all the

Arguments at length on both sides upon one common ground, where an act

to one intent shall enure to divers intents distinct in time; some holding, That

the bargain and sale doth amount not only to a Dotation, but also to a Foun-

dation, and others totis viribus e contra;

123

for it appeareth to you now without

any question, That the ﬁrst Dotation is the Foundation. And yet in that also

a difference is necessary to be well understood; scil. when the King expresses

the words, designeth the place, appointeth the number, and giveth them a

name by his Charter; so that the same is a complete Corporation; there the

Founder or Donor hath nothing to do but to make the Dotation without any

instrument comprehending these words, fundo, erigo, stabilio, &c.

124

or other

the like words. For the common person who is the Founder in such case hath

nothing to do in the power of incorporation; but when the King by his Charter

doth reserve as well the nomination of the persons, as the name of the in-

corporation to the common person who shall be the Founder, there he ought

121. [Ed.: whereas our hospital of the Holy Innocents next Lincoln, of the foundation of our forebears,

being kings of England, etc., was endowed for the support of the poor and sick staying in the same hospital.]

122. [Ed.: founded . . . endowed]

123. [Ed.: with all their might to the contrary.]

124. [Ed.: I found, erect, establish, etc.]

[33 b]

Sutton’s Hospital 375

to name the parties, and to declare by what name they shall be incorporated,

and there many times, although it be superﬂuous, he useth these words, fundo,

erigo, &c.

125

or the like. And when the common person hath done it and

declared it in writing according to his authority, then they are incorporated

by the King’s Letters Patents, and not by the common person, for he is but

an instrument, and the King maketh the Incorporation in such case in the

same manner as if all had been comprehended in the Letters Patents them-

selves: as it is true, that none but the King alone can create or make a Cor-

poration, as it is holden in 49 Edw. 3. 4. 4a. 49 Ass. 8. but, qui per alium

facit, per se ipsum facere videtur.

126

See for this difference 38 Edw. 3. 14b. 22

Edw. 4. Grant 30. 2 Hen. 7. 13a, 13b. | Grant 36. 20 Hen. 7. 7. And as to the

eighth Objection against the nomination of the Master, it was resolved that

it was good; For Sutton hath a liberty at his will and pleasure to nominate

him; and when he is named, he is Master by force of the Letters Patents, and

is now as if he had been named in the Letters Patents themselves at the be-

gining: and the other part of the Objection is answered before.

And as to the objections against the bargain and sale, it was ﬁrst resolved

without question, That money given by the Governours or any of them as a

private person, is a good consideration to grant the land to them in their

politick capacity. But the Indenture importeth that they paid it as Governours

and by such name they are acquitted by the Indenture. Also there is twelve

pence Rent reserved to Sutton and his heirs, which is a good consideration.

2. Although in the Habendum

127

a trust is declared, the same without question

cannot make the bargain and sale void, but the conveyance being by bargain

and sale, it was wisely done to declare the conﬁdence and trust. And as to the

third, the same is clearly answered and resolved as before.

And as to the last Objection, scil. That in pleading, those Governours cannot

plead, that they were seised in jure hospitalis,

128

because there was not any

Hospital incorporate, nor in esse,

129

at the time of the incorporation. To that

it was answered, That the pleading shall be that they were seised in their

125. [Ed.: I found, erect, etc.]

126. [Ed.: who does something through another is deemed to do it himself.]

127. [Ed.: Literally “to have,” the clause in the Letters Patent assigning a right to hold the powers for

some purpose.]

128. [Ed.: in right of the hospital,]

129. [Ed.: in being,]

[34 a]

Answer to

the 8th

Objection.

Ante 24a.

Answer to

the 9th

Objection.

Antea 24a.

Answer to

the 10th

Objection,

Antea 24a.

Part Ten of the Reports376

demesne as of Fee in jure incorporationis suae,

130

and so it was pleaded in the

Cooks case of London in Plow. Com. Vide Fulmerstone’s case also, in Plow. Com.

102. vide 7 Edw. 3. the case of custos altaris,

131

he counted that he was seised,

&c. in jure altaris.

132

And as to the precedents which were shewed, it was

answered, That there are many clauses inserted in Charters as well of the King

as others, ex consuetudine Clericorum,

133

which are not de necessitate legis,

134

but some declaratory and explanatory, and some prolix and nugatory, but lex

multa proﬁcientia, et preﬁcientia paucis comprehendit.

135

And all the Judges

which argued this case (except the two before-said) did conclude against the

Plaintiff, and those two also mutataˆ opinione

136

did assent to the judgment:

so that by the assent of all the said Judges nullo contradicente

137

judgment was

given against the plaintiff: And the Lord Ellesmere, Lord Chancellour of En-

gland, heard all the arguments at the barre and bench did agree in opinion

with the Judges: So that this great work of Charity hath tasted of such charity

which ought to be in Judges, which is declared in the statute | of West. 1. cap.

ult. Summa charitas est facere Justitiam omnibus personis omni tempore quando

necesse fuerit.

138

And there is a good rule for these Governours, and all other

Corporations which is expressed in the Statute de Templariis anno 17 Edw.

2. in these words, Ita semper quod pia et celeberrima voluntas donatorum in

omnibus teneatur et expleatur et perpetuo sanctissime perseveret.

139

And Sir

Thomas Fleming, Knight, after the ﬁrst day this case was argued fell sick, of

which Sickness he afterwards died, so as he never argued this case. The said

Sir Thomas Fleming was ﬁrst a Sarjeant at Law, and afterwards Solicitour

General to Queen Elizabeth, and to the King that now is for the space of

twelve years, and then was preferred to be chief Baron of the Exchequer after

the death of Sir William Periam, and then was advanced to be chief Justice

of England after the death of Sir John Popham; all which places he discharged

130. [Ed.: in right of their corporation,]

131. [Ed.: keeper of the altar,]

132. [Ed.: in right of the altar.]

133. [Ed.: by the custom of clerks,]

134. [Ed.: legally necessary,]

135. [Ed.: the law comprehends many proﬁtable and authoritative things in few words.]

136. [Ed.: changing their opinion.]

137. [Ed.: no one disagreeing.]

138. [Ed.: It is the utmost charity to do justice to all persons at all times when it is needed.]

139. [Ed.: provided always that the pious and most esteemed wish of the donors should in every respect

be kept and carried out and preserved as sacred for ever.]

[34 b]

Sutton’s Hospital 377

with great judgment, integrity and discretion, and he deserved the good opin-

ion of all that knew him, because he was of a sociable and a peaceable nature

and disposition.

Which Case I have reported at length for three causes. 1. For the Conﬁr-

mation of Incorporations founded for works of Piety & Charity in time past.

2. For the better instruction how they may be after so and established that

no exception may be taken to them. 3. For the resolving of certain opinions

and questions which were moved at the barre, and which might have disturbed

the peace of the Law. In the argument of this case many other authorities were

cited, sc. 2 Edw. 3. 47. 3 Edw. 3. 83. 5 Edw. 3. 144. 7 Edw. 3. 57. 8 Edw. 3. 67.

8 Edw. 3. 208. 18 Edw. 3. 1. 20 Edw. 3. Nonabilite 9. 20 Edw. 3. Corone 225.

21 Edw. 3. 35. 32 Edw. 3. Aid 55. 40 Edw. 3. 28. 44 Ass. 2. 13 R. 2. Breve 643.

11 Hen. 4. 12. 19. 14 Hen. 4. 8. 3 Hen. 6. 28. 7 Hen. 6. 13. 9 Hen. 6. 13, 14.

16. 20 Hen. 6. 7. 21 Hen. 6. 2. 12 Edw. 4. 17. 15 Edw. 4. 1. 21 Edw. 4. 32. 55.

57. Lib. Ent. 112. 6 Hen. 7. 14. 10 Hen. 7. 16. 11 Hen. 7. 9. 11 Hen. 7. 27. 13

Hen. 8. 13. 14 Hen. 8. 29. 32 Hen. 8. br. Corp. 78. 1 Mar. Dye. 98. 7 El. Dy,

81. the case of The College of Grainstock, 10 El. Dyer the case of The College

of Landebrevis, Pl. Com. Grendon’s case 494. Hil. 16 El. rot. 495. Sir Fr.

Fleming’s case in the Com. Pl.

The names of the governors nominated by Sutton and expressed in the said

charter, were, The most Reverend Father in God, George, Archbishop of

Canterbury, Thomas Lord Ellesmere, Lord Chancellor of England, Robert

Earl of Salisbury, John Bishop of London, Lancelot Bishop of Ely, Sir Edward

Coke then Chief Justice of the Common Pleas and now Chief Justice of En-

gland, Sir Thomas | Foster, one of the Justices of the Court of Common Pleas,

Sir Henry Hobart then the King’s Attorney-General, and now Chief Justice

of the Court of Common Pleas, John Overal, Dean of the Church of St. Paul

in London, George Mountain, Dean of Westminster, Henry Thursby one of

the Masters of the Chancery, Jeffery Nightingale, Richard Sutton, John Law,

Thomas Brown, and the Master of the said hospital for the time being; and

after the death of the said Sir Thomas Foster, one of the Justices of the Court

of Common Pleas, (who was a grave and Reverend Judge of great judgment,

constancy and integrity) Sir James Altham, Knight, one of the Barons of the

Exchequer, was according to the said Charter unanimi consensu

140

in his place.

And the said Master of the Hospital, which Sutton had nominated durante

140. [Ed.: with unanimous consent.]

The Rea-

son of re-

porting

this case at

large.

[35 a]

Part Ten of the Reports378

bene placito,

141

our soveraign Lord the King that now after the death of Sutton,

did by his Letters Patents, nominate Master for his life.

The Case of the Isle of Ely.

(1609) Michaelmas Term, 7 James I

Before the Justices of the Court of Common Pleas.

First Published in the Reports, volume 10, page 141a.

Ed.: The Commissioners of Sewers decreed that a new, seven-mile-long

river should be cut through the fens, and ordered that the new river be

paid for by a tax they levied on ﬁfteen towns. The Privy Council referred

the case to Coke and the Common Pleas for a determination of whether

the Commission had the powers necessary to do this. Coke applied the

Parliamentary acts creating the commission and giving it authority and

resolved that it only had the power to repair damage to existing watercourses

and not to make new ones. Further, it only had the power to assess in-

dividuals according to the beneﬁt the individuals reaped from the protection

of the sewers.

A Case was referred by the Lords of the Councel to Coke, Chief Justice,

Daniel and Foster, Justices of the Court of Common Pleas, concerning a

Decree made by the Commissioners of Sewers, for the making of a new River

within the Isle of Ely; and in effect the case was such. The Commissioners

of Sewers had decreed, That a new River should be cut out of the old River

of Owse, and through the main land within the same Isle, for seven miles

unto another part of the same River: And for the doing thereof, they had

severally taxed as well Fen, Drayton, Samsey, Over-Wivelingham, Rampton,

Cottenham, and nine other Towns within the County of Cambridge, out of

the Isle, as the Inhabitants of the said Isle, and the tax was general, sc. so much

of one Town, and so much of another, and sic de singulis.

And in this Case two Questions were moved: 1. If the Commissioners of

Sewers might by force of their Commission make a new River, or not.

2. If such general taxation upon the Towns was lawful, or not.

141. [Ed.: during good pleasure,]

1. [Ed.: and likewise concerning each.]

The Case of the Isle of Ely 379

As to the ﬁrst, it is to see what might have been done by the Common

Law before any Statute made thereof. And it is to known, That by the Com-

mon Law, before the Statute of 6 Hen. 6. cap. 5. the King of Right ought to

save and defend his Realm, as well against the Sea, as against the Enemies,

that the same be not drowned or wasted: And also to provide, that his Subjects

have their passage through the Realm by Bridges and Highways in safety. And

therefore if the Sea-walls be broken, | or the Sewers or Gutters are not scoured,

that the fresh waters cannot have their direct course, the King ought to grant

a Commission to enquire and to hear and determine these defaults. Which

Commission appeareth in the Register, amongst the Commissions of Oyer

and Terminer; in which it is said, Nos eo quod ratione dignitatis nostrae Regiae

ad providend’ salvationi Reg’ nostri circumquaque sumus stricti, &c.

And with

that agreeth the Statute of 6 Hen. 6. cap. 5. and the Statute of 23 Hen. 8.

Cap. 5.

And see a notable Precedent Pasch. 44 Edw. 3. Midd. 2. cor’ Rege, praecept’

est vicecom’ quod distringat A. B. & alios quod ipsi defectus walliarum erga terras

suas reparant, et si ipsi sufﬁcientes non fuerunt, quod distrin’ omnes tenentes terrar’,

&c. qui defension’, commod’, salvamen, vel damnum ratione reparat’ seu non

reparation’ walliae praed’ habent seu aliquo modo habere poterint, ita quod qui-

libet tenentium praed’ juxta quantitatem tenurae suae ibid’ contributionem prae-

fat’ A. B. et aliis ad wallias illas faciend’ & reparandas faciant indilate:

Which

Record was before any Act of Parliament that limited any form of Commission.

The second thing observable in the said Commission at the Common Law,

is this clause, Ad hujusmodi wallias, fossata, gutterus, sueras, pontes, calceta, et

gurgites in locis necessariis reparand’ & quotiescunque et ubi necesse fuerit de novo

facienda:

By which it appeareth that by the Commission in the Register at

the Common Law, that the ancient walls, gutters, or Sewers might be repaired

2. [Ed.: Inasmuch as by reason of our royal dignity we are strictly (bound) to provide for the safety of

our realm, etc.]

3. [Ed.: the sheriff is commanded to distrain A. B. and others that they repair the defects in the sea-

walls next to their lands, and, if they are not sufﬁcient, to distrain all the tenants of the lands etc. who

have or in any way might have defence, beneﬁt, safeguard or damage by reason of the repair or non-repair

of the aforesaid walls, so that each of the aforesaid tenants should without delay make contribution to A.

B. and the others, according to the quantity of his tenure there, towards making and repairing those walls.]

4. [Ed.: For repairing such walls, ditches, gutters, sewers, bridges, causeways and weirs in necessary

places, and as often and wherever need arises to renew them.]

[141 b]

Part Ten of the Reports380

or new made; but no new walls, gutters, or Sewers, by force of the said Com-

mission might be made. Then it is to see in what cases the Statutes have made

provision in these cases. And it is to know, That the Statute of 6 Hen. 6. cap.

5 doth enlarge the said Commission which was at the Common Law: for where

these words (de novo facienda)

refer onely to old Walls, Gutters, Sewers, &c.

the said Act hath these words & eadem et alia quotiescunque, et ubi necesse

fuerit de novo facienda;

which words (et alia)

being added to the former

Commission, give to the Commissioners power to make new Walls, Gutters,

Sewers, &c. but this Act did not endure but ten years; and by 18 Hen. 6. cap.

10 the like Commission was established for ten years; and by 23 Hen. 6. cap.

9. for ﬁfteen years; and by 12 Edw. 4. cap. 6. for ﬁfteen years; and by 4 Hen.

7. for twenty-ﬁve years; and by 6 Hen. 8. c. 10. for ten years, and until the

next Parliament. And afterwards the Statute of 23 Hen. 8. cap. 5. was made,

which reciteth none of the former Acts as the others do, but enacteth, That

there shall then after a Commission of Sewers “according to the manner, tenor,

form, and effect hereafter ensuing,” and rehearseth the form of the Com-

mission de verbo in | verbum:

which Commission omiteth the said words (&

alia) and followweth the Commission in that point which was at the Common

Law. The words of the Act of 23 Hen. 8. being, “And also to reform, repair,

and amend the said Walls, Ditches, Banks, Gutters, Sewers, &c. and the same

(omitting these words, and other) as often, and where need shall be, to make

new.” And the former clause concerning execution of the former Statute and

Ordinances, is restrained with these words (touching the premises,) which

refer onely to repair the old Walls or Sewers, or to make them new. And also

a subsequent clause, That all and every Statute, &c. heretofore made con-

cerning the premises, (which restraineth that clause ut supra

) not being con-

trary to this present Act, nor heretofore repealed, shall stand and be good and

effectual for-ever. So that it was Resolved by the Justices, That by force of the

said Commission founded upon the Act of 23 Hen. 8. the Commissioners

could not make the said new River out of the main land for four causes.

5. [Ed.: to renew them.]

6. [Ed.: and as often and wherever need arises to renew them and make others new;]

7. [Ed.: and others.]

8. [Ed.: word for word:]

9. [Ed.: as above.]

[142 a]

The Case of the Isle of Ely 381

1. That this Act doth prescribe the manner and form of the Commission

in express words, which extends onely to the reparation and new making of

old walls, gutters, &c.

2. That these words, et alia, which were included in the statue of 6 H. 6.

and all the said Acts are left out of this commission.

3. All the former Acts were for a time, but this Act which establishes this

Commission, is made perpetual by the statute of 3 Edw. 6. c. 8. and therefore

it shall be hard to enlarge it beyond the words, and to give power to Com-

missioners to try inventions at the charges of the Country, which perhaps shall

never take good effect, but via trita est tutissima.

4. It appeareth by the Register in the writ of Ad quod damnum,

fo. 252.

and F. N. B. 225E. That if an old Ditch or Trench coming from the Sea to

a Town, by which Boats or Vessels use to pass to the said Town; now if it is

stopped by the outrage of the Sea, and a man would sue to the King to have

leave to make a new trench, and to stop the old trench, he ought ﬁrst to sue

Ad quod damnum, to know what damage it shall be to the King or others:

By which, and by the Writ in the Register de antiqua trenchea obstruenda et

nova facienda seu habenda,

it appeareth that no new trench or river which

runneth to the Sea, can be made without the writ of Ad quod damnum, and

thereupon to obtain the Kings licence to do it. For if any Commissioners

might do it ex ofﬁcio,

great inconvenience thereupon for private gain as well

as for publick damages as stopping of Havens (which are the gates of the

Kingdom), | and other common Rivers, as particular nuisance and prejudice

to private men, by drowning of their lands and Inheritance, And therefore

such new Rivers cannot be made without the Kings Licence, grounded upon

a Writ of Ad quod damnum. See Vide the Writ of Ad quod damnum in such

case, quia optimum.

But it was resolved, That new Inventions, as of an artiﬁcial mill to cast out

the water, or of a great River out of the main Land, and other the like, are

10. [Ed.: the beaten path is the safest.]

11. [Ed.: Royal writ directing the sheriff to ascertain the damage that would be done to a town, if a

right to hold a fair is granted in the town.]

12. [Ed.: for obstructing an old trench and making or having a new one,]

13. [Ed.: by virtue of ofﬁce,]

14. [Ed.: because it is the best.]

[142 b]

Part Ten of the Reports382

not warranted by the said Commission upon the said Act of 23 H. 8. quia

nihil semel inventum est et perfectum;

So when an old Sewer is newly to be

made or cleansed, some small alteration in respect of the natural change of

the current, or otherwise for the publick good of such place (and so in the

like cases) may be made. So when an old wall by the extreme rage of the water

is broken, to preserve the lands within the same Level from inundation,another

wall, in case of inevitable necessity for the publick good of that part, may be

made to defend the people and their Lands within the same Level. For this

manner of defence by walling is no new invention, but the old way and mean

well approved of by experience, and upon the matter it is but a new making

of the old wall in a place by inevitable necessity more ﬁt than the other. But

If by the timely reparation of the old wall, the extreme danger may be avoided,

no other ought to be made; for si assuetis mederi possis, nova non sunt tentanda:

but when new inventions are proposed, as is aforesaid, if they are apparently

proﬁtable, no owner of the land there will deny to make contribution for his

advantage; and then the same ought to be made by a voluntary consent, and

not by constraint by force of the said Commission of Sewers upon the said

Act of 23 H. 8. But sometimes when a publick good is pretended, a private

beneﬁt is intended. And if any such new invention is in truth (quod raro aut

nunquam ﬁt)

good for the Commonwealth, and yet no consent can be ob-

tained for the making of it, then there is no remedy but to complain in Par-

liament, and there to provide relief, as Sir John Popham, late Chief Justice

of England, did, who exhibited a bill in Parliament anno 3 Jac. for making a

new River in the said Isle, which he himself upon his great charge begun,

knowing that without an Act of Parliament, none could be forced by force

of the Commission of Sewers, to contribute to such new attempt. But the

Bill was utterly rejected.

Also, It was Resolved that none can be taxed towards the reparation, but

those who have prejudice, damage, or disadvantage by the said nuisances or

defaults, and who may have | beneﬁt and proﬁt by the reformation or removing

of them. Also the Tax, Assessment, and charge ought to have these qualities.

1. It ought to be according to the quantity of their lands, tenements, and

15. [Ed.: nothing is perfect at the time when it is invented;]

16. [Ed.: if you can put right the familiar things, you should not try out something new;]

17. [Ed.: which is rarely or never done.]

[143 a]

The Case of the Isle of Ely 383

rents, and by number of acres and perches. 2. According to the rate of every

persons portion, tenure, or proﬁt, or of the quantity of the Common of

pasture, or of ﬁshing, or other commodity. And therefore it was clearly Re-

solved by them, That the said tax generally of a several sum in gross upon a

Town is not warranted by their Commission, but it ought to have been par-

ticular, according to the express words, upon every owner or possessor of lands,

tenements, rents, &c. observing the qualities aforesaid.

And it is to be observed, That there are three manner of Statutes which

concern Sewers: The ﬁrst consisting in defendendo et reparando wallias, seweras,

&c.

The 2. in destruendo et amovendo nocumenta, &c.

The 3. which con-

cerneth both the points, tam in destruendo quam in defendendo.

Of the ﬁrst

sort are Magna Charta, c. 15 & 16. 6 Hen. 6. c. 5. 18 Hen. 6. c. 10. 23 Hen.

6. c. 9. 12 Edw. 4. c. 6. 4 Hen. 7. c. 8. 6 Hen. 8. c. 10. Of the second sort

are Magna Charta, c. 23. 25 Edw. 3. c. 4. 45 Edw. 3. c. 4. 1 Hen. 4. c. 12. 9

Hen. 6. c. 9. 12 Edw. 4. c. 7. of the third sort of Statutes, which concern both

the former sorts, are 23 Hen. 8. c. 5. 25 Hen. 8. c. 10. 3 Edw. 6. c. 8. and 13

Eliz. c. 9.

18. [Ed.: defending and repairing walls, sewers, etc.]

19. [Ed.: destroying and removing nuisances, etc.]

20. [Ed.: both in destroying and in defending.]

Part Eleven of the Reports

The Eleventh Part of Coke’s Reports was published in 1615, and it was the last

volume to be published during Coke’s lifetime. It was originally published

entitled La unzime part des reports de Sr. Edw. Coke chivalier, chiefe justice

Dengleteere des plees destre tenus devant le roy mesme assignee & del Counseil

Prive d’Estate, des divers resolutions & judgments donez sur solemnes arguments

& avec grand deliberation & conference des tres-reverend judges & sages de la ley,

des cases en ley queux ne fueront unques resolve ou adjudges par devant, et les

reisons & causes des dits resolutions & judgments. Publie´ en la unziesme an de

treshaut et tresillustre Jaques roy Dengleterre, France, & Ireland, & de escosse le

49. Le fountaine de tout Justice & la vie de la Ley. In English, The Eleventh Part

of the Reports of Sir Edward Coke, Knight, Lord Chief Justice of England, of the

Pleas assigned to be held before the King Himself, and of the Privy Council of

State, of divers Resolutions and Judgments given upon solemn Arguments, and

with great deliberation and Conference of the reverend Judges and Sages of the

Law, of Cases in law which were never Resolved or Adjudged Before, and the

Reasons and Causes thereof. Published in the Eleventh year of the most high and

Most Illustrious James, King of England, France, and Ireland, and of Scotland

the 47., the Fountain of all Justice, and the life of the Law. The topics essentially

are unchanged from prior parts.

Epigrams from the Title Page:

Prov. cap. 11. vers. 3.

Simplicitas justorum diriget eos; & supplantatio perversorum vastabit eos.

1. [Ed.: The integrity of the upright shall guide them, and the perverseness of wrongdoers shall destroy

them [Proverbs, xi. 3].]

Preface 385

Prov. cap. 12. vers. 3.

Non roborabitur homo ex impietate; radix autem justorum non commovebitur.

Compendaria res improbitas, virtus longa.

Compendia, sunt dispendia.

(Preface)

Deo, Patriae, Tibi.

Of writing of many Books, faith Solomon, there is no end; which is understood

of such as are written to no end: I mean therefore (Learned Reader) by way

of Preface to propose unto you in few words, the substance of the Cases in

this eleventh Work, whereby you will easily collect the end and scope of the

same.

I. In the ﬁrst place I report the Case of the Lord LaWare, resolved in Par-

liament holden in the 39th. year of the Reign of Queen Elizabeth wherein

appeareth what Disabilities are personal and temporary, and barreth not the

Heir to claim Honour and Dignity from that Ancestor so disabled, or from

any other Ancestor paramount him; and also what Disablities are in Law

absolute and perpetual.

II. In the second place followeth Auditor Curles Case, resolved in the 7th.

year of the most happy Reign of King James: in this case is resolved, That

Judicial Ofﬁces cannot be granted in Reversion, but that generally such Grants

by the Common Law of England are utterly void, and therefore though this

Case be calculated for the Meridian of the Court of Wards, yet by computation

it may serve for all the Judicial Courts of England: a necessary Case I assure

you to be published, and the Law to be put in ure in these days: in which

case are also handled some other particular Points concerning the Ofﬁce of

the said Auditorship in the Court of Wards.

III. Then cometh in Sir John Heydon’s Case, adjudged in Trinity-Term 10

Regis Jacobi; wherein is perspicuously expressed, where Damages shall be sev-

2. [Ed.: A man shall not be established by wickedness; but the root of the righteous shall not be moved

[Proverbs, xii. 3].]

3. [Ed.: Wickedness is short, virtue long. Proﬁts are to be paid for.]

4. [Ed.: To God, to the Country, to you.]

Part Eleven of the Reports386

erally assessed by the Jurors; and where the ﬁrst Jury between the Plaintiff

and one of the Defendants shall assess Damages for all the Defendants, and

where not: whereby all the Books are well reconciled; for want of right Un-

derstanding whereof, many Judgments have been arrested, many that have

been given, have been overthrown by Writ of Error, to the great charge, delay

and vexation of the Party grieved.

IV. After this appeareth the Case of Priddle and Napper in Michaelmas-Term

10 Jacobi Regis; and therein is set down what Unity is sufﬁcient within the

Statute of 31 Hen. 8. to discharge the Land of Tithes, with divers other Points

concerning the same.

V. Next after Doctor Graunts Case presenteth it self, adjudged Michaelmas-

Te r m 11 Jacobi Regis, whereby you may see where Parsons and Vicars may have

certain Tithes for Houses in Cities, Boroughs, &c.

VI. Then you shall read the Case of Sir Henry Nevil, adjudged Michaelmas-

Te r m 11 Jacobi Regis: and understand that a Customary Mannor may be holden

by Copy, and that such a Lord may hold Courts, and grant Copies.

VII. Now cast your Eye upon Doctor Ayrayes Case, adjudged Michaelmas-

Te r m 11 Regis Jacobi; wherein you shall perceive what be material misnamings

of Corporations, either to avoid their own Grants by mistaking their own

Name, or Grants made to them: a Case that concerns the Good and Quiet,

not only of Colledges and other Coporations, but of their Farmors, Lessees,

and other that claim under them.

VIII. Then is offered to your view Henry Harpurs Case, resolved Trinity-

Te r m 12 Jacobi Regis; wherein Men are directed how the Kings Tenant that

holdeth by Knights Service in Capite, may dispose two parts of his Lands, &c.

for the payment of his Debts, advancement of his Wife, preferment of his

younger Children, or otherwise according to Law, and leave no trouble or

question after his Death, between his Heir and the Devisees; the want of

Knowledge whereof hath tended, if not to the undoing, yet to the great hin-

derance of many Families.

IX. Next to this have I reported Henry Pigots Case, adjudged Trinity-Term

12 Jacobi Regis, to instruct the Reader what alteration of any Deed after the

ensealing and delivery, and by whom, avoideth the Deed.

X. By this time I presume you have expected and desired to see the Case

of Alexander Poulter, that most wickedly and feloniously burnt the good Town

of Newmarket, who upon consideration of many intricate, and ill penned

Statutes, in the end was clearly (as you shall perceive) ousted of his Clergy;

Preface 387

wherein many notable and observable Points concerning Clergy, which by a

mean concern the Life of Man, are resolved, Mich. 12 Jacobi.

XI. And lest there should be error in bringing of a Writ of Error, Metcalfes

Case, Michaelmas-Term 12 Jacobi hath gotten the next place: wherein is plainly

discussed, upon what Judgment or Award a Writ of Error doth lie, and upon

what Judgment or Award it lieth not.

XII. And to avoid error in imposing of Fines upon Contempts in Leets,

and other Courts of Record. In the Case of Richard Godfrey Esq; is clearly

resolved, when the Fine ought to be several, and when joint, and when and

how a Fine unlawfully imposed, may be avoided, and when the Lord may

distrain for Court Leets, Mich. 12 Jac.

XIII. The next room Richard Lifords Case hath justly gotten, for therein is

resolved, what interest the Lessee hath in Timber Trees, when they are not

excepted, and what interest in that case the Lessor hath: what and what manner

of interest the Lessor hath in Trees excepted, and whether in that case by a

general Grant of the Reversion, they pass to the Grantee, and much necessary

Learning concerning that Matter, Mich. 12 Jac.

XIV. Then have you the Case of the Tailleurs of Ipswich, a necessary Case

for Poor Tradesmen, that many times are by Ordinances made by Incorpo-

rations, (whereby the Publick Good is pretended, and Private Respects in-

tended) barred or hindred of the Freedom of their Trade, Mich. 12 Jac.

XV. Edward Savels Case taketh up a very little standing, and shortly sheweth

that an Ejectione ﬁrmae, (that now is grown so common) lieth not for a place

known, but of certain Acres of Land, Meadow or Pasture, &c. Michael.

12 Jac.

XVI. And Benthams Case in as few Words as the other, sheweth how in

some case the omission of Matter material in a Verdict may be salved, Mich.

12 Jac.

XVII. I could not keep back Doctor Fosters Case, wherein, upon mature

consideration had of all the Statutes of Recusants, a clear way is opened, for

their just and speedy Conviction according to the Laws. A Case that con-

cerneth the Glory of God, and the Honour of our Religion, Mich. 12 Jac.

XVIII. And justly doth the Case of Magdalen-Colledge in Cambridge chal-

lenge the next place, which tendeth to the maintenance of Gods true Religion,

the advancement of Liberal Arts and Sciences, the supportation of the Ec-

clesiastical State, the preservation and prosperity of those two famous Sisters,

the Universities of Cambridge and Oxford, and of all the Colledges within the

Part Eleven of the Reports388

Realm, and the establishment of Hospitals, and provisions for the Poor, ad-

judged Paschae 13 Jacobi Regis.

XIX. And in course of time doth Lewes Bowles Case come, wherein is clearly

resolved the true operation and sense of the Clause in Leases, without Im-

peachment of Waste; and what interest the Lessee hath in the Timber of an

House prostrated by Tempest, adjudged Pasch. 13 Jac. Regis.

XX. And though it cometh not in sequence of time, yet the Case of Mo-

nopolies cannot come out of time, wherein divers things concerning Mo-

nopolies, are clearly resolved, and worthy to be published, Trin. 44 Eliz.

XXI. And I could not keep back the Earl of Devonshires Case, resolved Hill.

4 Jacobi, whereby the Prerogative of the King appeareth; That his right of

Restitution dieth not by the death of the Party that doth him wrong: the end

whereof is, that the Kings Toll may come to the right Mill.

XXII. And lastly, The Case of J. Bagge, adjudged Trin. 13 Jac. Regis, wherein

is resolved, where a Writ of Restitution for a Freeman of an Incorporation,

being disfranchised, doth lie: and incidently, who have power to disfranchise,

and what be sufﬁcient causes of disfranchisement.

This Eleventh Work (Learned Reader) I have published in the tempest of

many other important and pressing Business; and therefore could not polish

them as I desired.

If I might judge, I should say, that the Matter of these are not inferiour to

any of the other. The end of this Edition is, That God may be gloriﬁed, his

Majesty honoured, the Common Good encreased, the Learned conﬁrmed,

and the Student instructed.

The Lord de la Warre’s Case.

(1596–1597) 39 Elizabeth I

In the Court of Parliament.

First Published in the Reports, volume 11, page 1a.

Ed.: Thomas de la Warre was an hereditary member of the House of Lords.

His son, William de la Warre, was barred for his life from holding any

hereditary ofﬁces or titles, although the Queen had him sit as a puisne

member, roughly, as a junior member, in the Lords. William’s son Thomas

sought to be seated in the Lords. Coke represented de la Warre. In this

case, the court construed the nature of a disability from ofﬁce for life from

The Case of Lord de la Warre 389

a permanent disability. Finding William’s disability had been personal and

not a barrier to his son, and that Thomas could hold more than one title

at a time, Thomas was seated as a full member in the Lords.

At the Parliament holden 39 Eliz. the Case was such: Thomas la Warre,

Knight, Lord la Warre, Son and Heir of William, Son and Heir of George,

Brother and Heir of Thomas, Son and Heir of Thomas Lord la Warre, ex-

hibited his Petition to the Queen to this effect, That whereas the said Thomas

his Great Grand-father was called to Parliament by Writ of Summons, An. 3

H. 8. and afterwards the said Thomas the Besayel died; after whose death

Thomas his son was called to divers Parliaments by Writs of Summons, and

afterwards by Act of Parliament, An. 3 E. 6. for divers causes mentioned in

the said Act, it was enacted, That the said William, during his life, should be

disabled to claim or enjoy any dignity or Lordship in any Right, Estate, &c.

by Discent, Remainder, or otherwise, and afterwards the said Thomas, son

of Thomas, died; after whose death, the said William being so disabled, was

not called to any Parliament by Writ of Summons, till Queen Elizabeth called

him to Parliament by Writ of Summons, and sat as puisne Lord of the Par-

liament, and, afterwards he died. And now the said Thomas his son being

called, this Parliament by Writ of Summons sued to the Queen, that he might

have the place in Parliament of his Great Grand-father, viz. between the Lord

Berkeley and the Lord Willoughby of Eresby: And the said Petition was en-

dorsed in these words, Her Majesty hath | commanded me to signify to your

Lordships, That upon the humble suit of the Lord la Warre, she is pleased that

the matter shall be considered and determined in the House. Robert Cecil. Which

Petition being read in the Upper House of Parliament, the consideration

thereof was committed to the Lord Burghley, Lord Treasurer, and divers other

Committees; who at his Chamber in Whitehal, heard the Council Learned

on both parties, in the presence of the two Chief Justices, and divers other

Justices; and two Objections were made against the Claim of the said Lord

la Warre.

1. Forasmuch as his Father was disabled by Act of Parliament to claim the

Dignity, the Petitioner could not convey by him who was disabled, as Heir

to his Great Grand-father, and by consequence he cannot have the place of

his Great Grand-father, but his Fathers place. But it was resolved by the

Justices, That there was a difference betwixt a Personal and Temporary dis-

ability and a disability absolute and perpetual: As where one is attainted of

[1 b]

Part Eleven of the Reports390

Treason and Felony, the same is an absolute and perpetual disability by cor-

ruption of Blood, for any of his posterity to claim any Inheritance in Fee-

simple, as Heir to him, or to any Ancestor above him: but when one is but

disabled by Parliament (without any Attainder) to claim the Dignity for life,

the same is a personal disability for his life onely, and his Heir after his death

may claim as Heir to him, or to his Ancestors above him.

The second Objection was, That the said William had accepted of a new

Creation of the Queen, which dignity newly gained did discend to the Pe-

titioner, which he could not wave, and therefore the Petitioner could not have

other place than his Father had. To which it was answered and resolved, That

the Acceptance of a new Creation by the said William could not hurt the

Petitioner, because the said William was at that time disabled, and in truth

was not a Baron, but onely an Esquire; so that when the old and new Dignity

discend together, the old shall be preferred. Which resolution was well ap-

proved by all the Lords Committees, which was accordingly reported to the

Lords of the Parliament, and allowed by them all.

Whereupon it was ordered by the Lords, That the Queen should be ac-

quainted with it by the Lord Keeper of the Great Seal, which was done ac-

cordingly, and the Queen conﬁrmed the same also: All which was ordered

and entered accordingly; Whereupon, at the same Parliament the Lord De la

Ware in his Parliament Robes was by the Lord Zouch (supplying | the place

of the Lord Willoughby, then within age) and the Lord Berkley also in their

robes, brought into the House, and placed in his said place, viz. next after

the Lord Berkley; Garter King of Arms attending upon them, and doing his

ofﬁce; And I was of Council with the Lord De la Warre.

The Case of the Tailors of Habits &c. of Ipswich.

(1614) Michaelmas Term, 12 James 1.

In the Court of King’s Bench.

First Published in the Reports, volume 11, page 53a.

Ed.: The Corporation of the Tailors of Ipswich was a guild incorporated

under a charter from the King, giving them authority to regulate their trade.

The guild barred anyone from practicing as a tailor in Ipswich, unless they

had been approved by its master and wardens. William Seninge moved to

Ipswich and practiced as a tailor. The guild sued Seninge in debt, seeking

[2 a]

The Case of the Tailors of Ipswich 391

£3 13s 4d. The Court of Common Pleas declared that the common law will

not allow a man to be prohibited from a lawful trade, the protections of

the law are for those in the public trade and not family servants, but that

the plaintiffs could recover nothing by their suit. For another case on re-

straint from the professions, see Dr. Bonham’s Case, p. 264, and on the

restraint of trade, see Case of the Monopolies, p. 394.

Trin. 11 Jac. Regis in the Kings Bench, Magistri, Gardiani, et Communitas

Scissorum et operatorum pannorum villae Gipwic’ in com’ Suff’,

brought an

Action of Debt for three pound, thirteen shillings and four pence against

William Shening, and declared, That whereas the King by his Letters Patents

had incorporated the Plaintiffs by the said name, and granted to them, That

they should have plenam potestat’ et authoritat’ facere et constituere rationabiles

leges, ordinationes et constitutiones, in script’ quae eis viderentur bon’, salubr’,

util’, honest’ et necessar’ secundum eorum discretiones pro bono regimine et gub-

ernatione, &c. societatis praed’, &c.

and to set Fines and Amercements for

breach of the said Laws, &c. And recited the Statute of 19 Hen. 7. 7. By which

it is enacted, That no Master, Wardens, and Society of Crafts and Mysteries,

take upon them to make any Acts or Ordinances, nor to execute any Acts or

Ordinances, in exhaeredationem seu diminutionem praerogativae vel aliorum

aliquorum, vel contra commune proﬁc’ populi, nisi iidem actus et ordinationes

examinat’ et approbat’ furent per Cancellar’, Thesaur’ Angliae, Capital’ Justic’

utriusque Banci, vel tres eorum vel aliter coram Justic’ Assisae in eorum itineribus,

&c. sub poena forisfact’ 40l. pro quolibet tempore quo ipsi in contr’ facerent.

And

afterwards the said Corporation, in the fourth year, made divers Constitutions,

and (amongst others) that no person exercising any of the said Trades within

1. [Ed.: The master, wardens and commonalty of tailors and clothworkers in the vill of Ipswich in the

county of Suffolk,]

2. [Ed.: full power and authority to make and constitute reasonable laws, ordinances, and constitutions,

in writing, which seem to them good, wholesome, useful, honest, and necessary, according to their dis-

cretions, for the good rule and governance, etc., of the aforesaid fellowship, etc.]

3. [Ed.: to the disinheritance or diminution of the prerogative or of any others, or against the common

proﬁt of the people, unless the same acts and ordinances have been examined and approved by the chancellor

and treasurer of England, the chief justices of both benches, or three of them, or else before the justices

of assize on circuit in those parts etc., on pain of forfeiting forty pounds for each time when they do the

contrary.]

Part Eleven of the Reports392

the Town of Ipswich praed’

should keep any Shop or Chamber, or exercise

the said Faculties, or any of them, | or take an Apprentice or Journeyman,

till they had presented them to the said Master and Wardens of the said Society,

for the time being, or any three of them, and should prove that he had served

seven years at the least, as an Apprentice, and before he shall be admitted by

them to be a sufﬁcient Workman; and if any offend in any part thereof, That

he should forfeit and pay to the said Master and Wardens, and Society afore-

said, for every such offence ﬁve marks, and to levy the same by Distress, or

Action of Debt, &c. The which (amongst others) was allowed by the Justices

of Assise of the same County, according to the said Act of 19 H. 7. And that

the said William Shening, Tailor, using the trade of a Tailor, after the said

Orders made and ratiﬁed as aforesaid, the tenth of October in the tenth year

of the King came to the said Town of Ipswich, and there used the Trade of

a Tailor by the space of twenty days, before he had presented himself to the

said Master and Wardens, or any three of them, or had made proof that he

had served as an Apprentice for seven years in the said Trade, and before he

was admitted by the said Master and Wardens, or any three of them, to be

sufﬁcient a Workman, per quod actio accrevit eisd’ Magistr’ Gardian’ et Com’

to have of the said Henry the sum of three pound, thirteen shillings and four

pence.

The Defendant pleaded that he was an Apprentice by the space of seven

years, viz: 1 from the ﬁrst of September, in the ﬁrst year of the King till the

second of September in the eight year to one Henry Backet in the art of a

Tailor, &c. And that ninth of September, Anno 10. Anthony Penny, Esquire

inhabitant in Ipswich, retained him to be his household servant to serve him

for one year; And that within the same time, he by the Commandment of

the said Anthony made divers Clothes and Garments for him, his wife, and

children, as was lawful for him to do, which is the same use and exercise of

the Trade of a Tailor, whereof the Plaintiffs have declared: Upon which the

Plaintiffs did demur in Law. And in this case, upon Argument at the Bar and

Bench, divers points were resolved.

1. That at the Common Law no man might be forbidden to work in any

lawful Trade, for the Law doth abhor idleness, the mother of all evil, Otium

4. [Ed.: aforesaid.]

5. [Ed.: whereby an action has accrued to the same master, wardens and commonalty.]

[53 b]

The Case of the Tailors of Ipswich 393

omnium vitiorum mater,

and chieﬂy in young men, who ought to their youth,

(which is the time of their sowing) to learn lawful Sciences and Trades, which

are proﬁtable to the Commonwealth, and whereof they might gather the fruit

in their old age, for idle in youth, poor in age; and therefore the Common

Law doth abhor all Monopolies, which forbid any one to work in any lawful

Trade; And the same appearth in 2 Hen. 5. 5b. a Dyer was bound that he

should not use the Dyer’s craft for two years, and there Hull held, that the

Obligation was against the Common Law, and (by God) if the Plaintiff were

here, he should go to prison, till he pay a ﬁne to the King: So, and for the

same cause. If a Husbandman be bound that he shall not sow his land, the

Obligation is against Law. And see 7 Edw. 3. 65b.; If he who taketh upon him

to work be unskilful, his ignorance | is a sufﬁcient punishment to him; for,

imperitia est maxima mechanicorum poena, et quilibet quaerit in qualibet arte

peritos:

And if any one taketh upon him to work, and misdoeth it, an Action

upon the Case lieth against him. And the Statute of 5 Eliz. 4., which forbiddeth

any person to use or exercise any Craft, Mystery or Occupation, if he hath

not been an Apprentice by the space of seven years, was not enacted onely to

the intent that Workmen should be skilful, but also that youths should not

be nourished in idleness, but trained and brought up in lawful Sciences and

Trades: And therefore it appeareth, that without an Act of Parliament, none

can be in any wise retained to work in any lawful trade. Also the Common

Law doth not forbid any person to use many Arts or Mysteries at his pleasure,

Nemo prohibetur plures negotiationes sive artes exercere,

until it was forbidden

by Act of Parliament of 37 Edw. 3. cap. 6. scil. That the Artiﬁcers and people

of Mystery tye every one to one Mystery, and that none use other Mystery

but that which he hath chosen; but presently this restraint of Trade and Trafﬁck

was found prejudicial to the Commonwealth; and therefore at the next Par-

liament it was enacted, That all people should be as free as they were at any

time before the said Ordinance.

2. That the said restraint of the Defendant, for more than the said Act of

5 Eliz. hath made, was against Law; And therefore for as much as the Statute

6. [Ed.: Idleness is the mother of all vices,]

7. [Ed.: lack of skill is the greatest punishment for a workman, for in each art everyone looks to those

who are skilled:]

8. [Ed.: No one is prohibited from exercising several businesses or arts.]

[54 a]

Part Eleven of the Reports394

hath not retained him who hath served as a Apprentice for seven years to

exercise the Trade of a Tailor; the said Ordinance cannot forbid him to exercise

his Trade, till he be presented before them, or till he be allowed by them to

be a Workman; for these are against the Freedom and Liberty of the Subject,

and are a means of Extortion in drawing moneys to them, either by delay, or

some other subtle device, or of oppression of yong Tradesmen, by the old and

rich of the same Trade, not suffering them freely to live in their Trade; And

all this is against Law, and against the Commonwealth. But Ordinances for

the well ordering and government of men of Trade and Mysteries are good,

but not to restrain any one in his lawful Mystery.

3. It was resolved, That the said branch of the Act of 5 Eliz. is intended of

publick use and exercise of a Trade to all who will come, and not of him who

is a private Cook, Tailor, Brewer, Baker, &c. in the house of any for the use

of a Family; And therefore if the said Ordinance had been good and agreeable

to Law, such private exercise and use had not been within it, for every one

may live in such private manner, although he hath never been an Apprentice

in the Trade.

| 4. It was resolved, That the Statute of 19 Hen. 7. 7. doth not strengthen

any of the Ordinances made by any Corporation, with one so allowed and

proved as the Statute speaketh, but leaves them to be afﬁrmed as good, or

disafﬁrmed as unlawful by the Law; the only beneﬁt which the Incorporation

getteth by such allowance is, That they shall not incur the penalty of forty

pound mentioned in the Act, if they put in use any Ordinances which are

against the Kings Prerogative, or the common proﬁt of the people. And af-

terwards Judgment was given, quod querentes nihil caperent per billam.

The Case of Monopolies.

(1602) Trinity Term, 44 Elizabeth I

In the Court of King’s Bench.

First Published in the Reports, volume 11, page 84b.

Ed.: Early in Elizabeth I’s reign, a Statute was passed forbidding the im-

portation of playing cards. Later, a monopoly was granted to Ralph Bowes

9. [Ed.: that the plaintiffs should take nothing by their bill.]

[54 b]

The Case of Monopolies 395

to manufacture and sell playing cards, or to license others to sell them, in

England, for twelve years. At the end of Bowes’ monopoly, the queen gave

it, and the right to stamp his cards as legal, to Edward Darcy then for

twenty-one years, in return for an annual payment of 100 marks. T. Allein,

a London haberdasher, sold 180 gross of playing cards, without paying Darcy

for the privilege or for the use of his stamp. Darcy sued Allein. Darcy was

represented by Dodderidge, Fuller, Fleming, and Coke, as Attorney Gen-

eral, which he was expected to do to defend the queen’s privilege in granting

monopolies (and in reaping their revenues). Crook, Altham and Tanﬁeld,

represented Allien. The King’s Bench ruled that the grant was void, because

monopolies are against the Common Law, which protects the freedom of

trade and liberty of the subject, and against the statutes of Parliament.

This is an unusual report: Coke, at least formally, lost the Case, although

his heart was probably not in it. Notice his contrast between the public

and private good and the description toward the end of the report of the

“odious monopoly” and his contrast of the stated and real purposes of it.

For cases on restraint from the professions, see also Dr. Bonham’s Case,

p. 264, Case of the Tailors of Ipswich, p. 390.

Edward Darcy, Esquire, a Groom of the Chamber to Queen Elizabeth,

brought an Action on the Case against Thomas Allein, Haberdasher of Lon-

don, and declared, That Queen Eliz., 13 Junii, anno 30, intending that her

subjects being able men to exercise Husbandry, should apply themselves there-

unto, and that they should not imploy themselves to the making of playing

Cards, which had not been any antient manual Occupation within this Realm;

and that the making of such a multitude of cards, Card playing was become

very frequent, and chieﬂy amongst servants and apprentices and poor Artif-

icers; and to the end her subjects might apply themselves to more faithful and

necessary Trades, by her Letters Patents under the Great Seal of the same did

grant unto Ralph Bowes, Esqire, full power, license and authority by himself,

his servants, factors and deputies, to provide and buy in any parts beyond the

Sea, all such playing Cards as he thought good, and to bring them within this

Realm; and to sell and utter them within the same, and that he, his servants,

factors and deputies should have and enjoy the whole Trade, Trafﬁc and Mer-

chandize of all playing Cards: And by the said Letters Patents further | granted

to the said Ralph Bowes, That the said Ralph Bowes his servants, factors, and

deputies, and no other should have the making of playing Cards within the

[85 a]

Part Eleven of the Reports396

Realm, to have and to hold for twelve years; and by the said Letters Patents

the Queene charged and commanded, That no person or persons besides the

said Ralph &c. should bring any Cards within the Realm during those twelve

years; Nor should buy, sell, or offer to be sold within the said Realm, within

the said term any playing Cards, nor should make, or cause to be made any

playing Cards within the said Realm, upon pain of the Queens gracious dis-

pleasure, and of such ﬁne and punishment as Offenders in the Case of vol-

untary contempt deserve. And afterwards the Queen, 11 Aug. anno 40 Eliz.

by her Letters Patents reciting the former grants made to Ralph Bowes, granted

the Plaintiff, his Executors, Administrators, and their deputies, the same pri-

viledges, authorities, and other the said premisses for one and twenty years

after the end of the former time, rendring to the Queen hundred marks per

annum; And further granted to him a Seal for to mark the Cards. And further

declared, That after the end of the said term of twelve yeers, scil. 30 Junii, an.

42 Eliz. the Plaintiff caused to be made four hundred grosses of Cards for the

necessary uses of the subjects, to be sold within this Realm, and had spent in

the working of them 5000 l. and that the Defendant knowing the said grant

and prohibition in the Plaintiff’s Letters Patents, and other the premisses, 15

Martii, 44 Eliz. without the Queens License or the Plaintiffs, &c. at West-

minster did cause eightie grosses of playing Cards to be made and as well

those, as 100 other grosses of playing Cards, of which many were made within

the Realm, or brought within the Realm by the Plaintiff, or his servants, factors

or deputies, &c. nor marked with his Seal; he had imported within the Realm,

and had sold and uttered them to sundry persons unknown, and shewed some

in certain, for which the Plaintiff could not utter his playing Cards, &c. Contra

formam praedict’ literar’ patentium, et in contemptum dictae Dominae Reginae,

whereby the Plaintiff was disabled to pay his farm rent, to the Plaintiffs dam-

ages.

The Defendant, besides to one half grosse pleaded, Not Guilty; and as to

that he pleaded, that the City of London is an antient city, and within the

same, time out of mind there hath been a Society of Haberdashers; and that

within the said City there was a Custom, Quod quaelibet persona de societate

illa, usus fuit et consuevit emere | vendere, et libere merchandizare omnem rem

1. [Ed.: Against the form of the aforesaid letters patent and in contempt of the said lady queen,]

[85 b]

The Case of Monopolies 397

et omnes res merchandizabiles infra hoc regnum Angliae de quocunque, vel qui-

buscunque personis, &c.

And pleaded, That he was civis et liber homo de civitate

et societate illa,

and sold the said half gross of playing Cards, being made

within the Realm, &c. as it was lawful from him to do; upon which the

Plaintiffe did demurre in Law.

And this Case was argued at the Bar by Dodderidg, Fuller, Fleming Solicitor,

and Coke Attorney-General, for the Plaintiff. And by George Crook, Altham,

and Tanﬁeld for the Defendant. And in this Case two general questions were

moved and argued at the Bar, arising upon the two distinct grants in the said

Letters Patents, viz.

1. If the said Grant to the Plaintiff of the sole making of Cards within the

Realm were good or not?

2. If the Licence or dispensation to have the sole importation of Foreign

Cards granted to the Plaintiffe, were available or not in Law. To the bar, no

regard was had, because it was no more then the Common Law would have

said, and then no such particular Custome ought to have been alleged, for in

his quae de jure communi omnibus conceduntur, consuetudo alicujus patriae vel

loci non est alleganda,

and therewith agreeth 8 Edw. 4. 5a. &c. And although

the bar was holden superﬂuous, yet it shall not turn the Defendant to any

prejudice, that he may well take advantage of the insufﬁciency of the Court.

As to the ﬁrst question it was argued on the Plaintiffs side, That the said

Grant of the sole making of playing Cards within the Realme, was good for

three causes:

1. Because the said playing Cards were not any merchandize, or thing con-

cerning Trade of any necessary use, but things of vanity, and the occasion of

expence of time, wasting of patrimonies, and of the livings of many, the loss

of the service and work of servants, causes of want, which is the mother of

wo and perdition, and therefore it belongeth to the Queen (who is Parens

patriae, & paterfamilias totius regni,

and as it is said in 20 Hen. 7. fol. 4.

2. [Ed.: That every person of that society has been used and accustomed to buy, sell, and trade freely

all merchantable property within this realm of England from whatsoever person or persons, etc.]

3. [Ed.: a citizen and free man of the city and of that society.]

4. [Ed.: in those things that are granted by the Common Law to everyone, the custom of any region

or place is not to be alleged.]

5. [Ed.: Parent of the country, and the family head of the whole realm,]

Part Eleven of the Reports398

Capitalis Justiciarius Angliae)

to take away the great abuse, and to take order

for the moderate and convenient use of them.

2. In matters of recreation and pleasure the Queen hath a Prerogative given

her by the Law to take such order for such moderate use of them as shall seem

good to her.

3. The Queen in regard of the great abuse of them, and of the deceit of the

subjects by reason of them might utterly suppress them, and by | consequence

without injury to any one, she might moderate and suffer them at her pleasure.

And the reason of the Law which giveth the King these Prerogatives in matters

of recreation and pleasure was, because the greatest part of men are ready to

exceed in them. And upon these grounds divers Cases were put; scil. That no

subject can make a Park, Chase, or Warren within his own Land, for his

recreation or pleasure without the Kings grant or license; and if he do it of

his own head in a Quo warranto,

they shall be seised into the King’s hands,

as it is holden in 3 Edw. 2. Action sur le Statute Br. 48. and 30 Edw. 3. Rot.

Pat. The King granted to another all the wild Swans betwixt London Bridg

and Oxford.

As the second, It was argued, and strongly urged, That the Queen by her

prerogative may dispense with a penal Law, when the forfeiture is popular, or

given to the King, And the forfeiture given by the Statute of 3 Edw. 4. cap.

5. in case of bringing of Cards is popular, 2 Hen. 7. 6 b. 11 Hen. 7. 11 b. 13

Hen. 7. 8b. 2 R. 3. 12a. Plow. Com, Greindon’s Case, 502a, b. 6 Eliz. Dyer.

225. 13 El. 393. 18 Eliz. 352. 33 Hen. 8. Dyer 52. 11 Hen. 4. 76. 13 Edw. 3. Release

36. 43 Ass. pl. 19. 5 Edw. 3. 29. 2 Edw. 3. 6. & 7. F. N. B. 211b.

As to the ﬁrst it was argued by the Defendants Counsel, and resolved by

Popham Chief Justice, et per totam Curiam,

That the said Grant to the Plaintiff

of the sole making of Cards within the Realm was void; and that for two

reasons.

1. The same is a Monopoly, and against the Common Law.

2. That it is against divers Acts of Parliament.

Against the Common Law, for four causes

1. All Trades, as well Mechanical, as others, which avoid idleness (the bane

6. [Ed.: Chief Justice of England.]

7. [Ed.: Writ to enforce limits on a Royal charter.]

8. [Ed.: and by the whole court,]

[86 a]

The Case of Monopolies 399

of the Commonwealth) and exercise men and youths in labor for the main-

tenance of them and their Families, and for the increase of their livings, to

serve the Queen if need be were proﬁtable for the Commonwealth; and there-

fore the grant to the Plaintiff to have the sole making of them is against the

Common Law, and the beneﬁt and liberty of the subject; and therewith agreeth

Fortescue in laudibus Legum Angliae, cap. 26.

And a Case was adjudged in this Court in an Action of Trespass between

Davenant & Hurdis Trin. 41 Eliz. Rot. 92. where the Case was, That the

Company of Merchant Taylors in London having power by charter to make

Ordinances for the better rule and government of the Company, [so that they

are consonant to Law and reason,] made an Ordinance, That every Brother

of the same Society, who should put any cloath to be dressed by any Cloth-

worker not being a Brother | of the same Society, shall expose one half of his

cloathes to any Brother of the same Societie, who exercised the Art of a Cloath-

worker, upon pain of forfeiting ten shillings, &c. and to distrein for it, &c.

and it was adjudged, That the Ordinance, although it had the countenance

of a Charter, was against the Common Law, because it was against the liberty

of the subject; for every subject by the Law hath freedom and liberty to put

his cloaths to be dressed by what Clothworker he pleaseth, and cannot be

restrained to certain persons, for that in effect shall be a Monopoly; and there-

fore such Ordinance by color of a charter, or any grant by charter to such

effect shall be void.

2. The sole Trade of any Mechanical Artiﬁce, or any other Monopoly is

not only a damage and prejudice to those who exercise the same Trade, but

also to all other subjects, for the end of all these Monopolies is for the private

gain of the Patentees; and although provisions and cautions be added to mod-

erate them; yet res profecto stulta est nequitiae modus;

it is meer folly to think

that there is any measure in mischief or wickedness. And therefore there are

three inseparable incidents to every Monopoly against the Commonwealth.

1. That the price of the said commodity shall be raised, for he who hath

the sole selling of any commodity, may make the price as he pleaseth. And

this word, Monopoly, is said, Cum unus solus aliquod genus mercaturae univ-

ersum emit, pretium ad suum libitum statuens.

And the Poet saith,

9. [Ed.: it is indeed a useless thing to moderate wickedness;]

10. [Ed.: [Monopoly is said], when one single person buys the whole of any kind of merchandise and

sets the price at his pleasure.]

[86 b]

Part Eleven of the Reports400

Omnia Castor emit, sic ﬁt ut omnia vendat.

And it appeareth by the Writ of Ad quod damnum,

F. N. B. 222a. That

every gift or grant from the King hath this Condition, either expressly or

tacitely annexed to it, Illa quod patria per donationem illam magis solito non

oneretur seu gravetur.

And therefore every grant made in grievance and prej-

udice of the subject is void; and 13 Hen. 4. 14 b. the Kings grant which tendeth

to the charge and prejudice of the subject is void.

The second incident to a Monopoly is, That after a Monopoly granted,

the Commodity is not so good and merchantable as it was before; for the

patentee having the sole trade, regardeth only his private, and not the publicke

weale.

3. This same leadeth to the impoverishing of divers Artiﬁcers and others,

who before by labor of their hands in their Art or Trade had kept themselves

and their families, who now of necessity shall be constrained to live in idlenesse

and beggary; vide Fortescue ubi supra.

And the Common Law in this point

agreeth with the equity of the Law of God, as appeareth in Deut. cap. xxiv.

ver. 6. Non accipies loco | pignoris inferiorem et superiorem molam, quia animam

suam apposuit tibi;

You shall not take in pledg the neathet and upper mil-

stone, for the same is his life; by which it appeareth, That every mans Trade

doth maintains his life, and therefore he ought not to be deprived or dis-

possessed of it, no more than of his life. And the same also agreeth with the

Civil Law; Apud Justinianum monopolia non esse intromittenda, quoniam non

ad commodum reipublicae sed ad labem detrimentaque pertinent. Monopolia

interdixerunt leges civiles, cap. De Monopoliis lege unica. Zeno imperator statuit,

ut exercentes monopolia bonis omnibus spoliarentur. Adjecit Zeno, ipsa rescripta

imperialia non esse audienda, si cuiquam monopolia concedant.

11. [Ed.: Castor buys everything, so that he may sell everything.]

12. [Ed.: Writ directing the sheriff to determine what damage there would be if a Royal charter such

as for a fair is granted.]

13. [Ed.: that the country should not be more burdened or vexed by that donation than is usual.]

14. [Ed.: in the above passage.]

15. [Ed.: Do not take the lower and the upper millstone as a pledge, because that would take his life;

[Deut., xxiv. 6].]

16. [Ed.: For we read in Justinian that monopolies are not to be meddled with, because they do not

conduce to the beneﬁt of the common weal but to its ruin and damage. The civil Laws forbid monopolies:

in the chapter of monopolies, one and the same Law. The Emperor Zeno ordained that those practising

monopolies should be deprived of all their goods. Zeno added that even imperial rescripts were not to be

accepted if they granted monopolies to anyone.]

[87 a]

The Case of Monopolies 401

3. The Queen was deceived in her grant, for the Queen as by the preamble

appears, intended the same to be for the weal publick, and it shall be imployed

for the private good of the Patentee; [and for the prejudice of the weal public];

Also the Queen meant that the abuse should be taken away, which shall never

be by this Patent, but rather the abuse will be encreased fort the private beneﬁt

of the Patentee, and therefore, as it is said in 21 Ed. 3. 46. in the Earl of Kent’s

Case, this grant is void jure Regio.

4. This grant is of this ﬁrst impression, for no such was ever seen to pass

[by letters patent]

under the great Seal of England before this time, and

therefore it is a dangerous innovation as well without any or example as without

authority of Law, or reason. And it was observed that this grant to the Plaintiff

was made for twenty-one years, so that his Executors, Administrators, Wife,

or Children, or others inexpert in the Art and Trade shall have this Monopoly.

And it cannot be intended, That Edward Darcy Esquire, and Groom of the

Queen’s Privy Chamber hath any skill in this Mechanical trade in making of

Cards, and then it was said, That the Patent made to him was void, for to

forbid others to make Cards who have the art and skill, and to give him the

onely making of them who hath no skill to make them, shall make the Patent

utterly void, Vide 9 Ed. 4. 5 b. And although the grant doth extend to his

Deputies, and it may be said, he may appoint Deputies who shall be expert;

yet if the Grantee himself be unexpert, and the grant be void as to him, he

cannot make any Deputy to supply his room, quia quod per me non possum,

nec per alium.

And as to what hath been said, That Playing Cards is a vanity,

It is true, if it be abused, but the making of them is no pleasure, but labour

and pains. | And it is true that none can make a Park, Chase, or Warren without

the Kings licence, for that were quodam modo

to appropriate those which

are ferae naturae, et nullius in bonis

to himself, and to restrain them of their

natural liberty, which he cannot do without the Kings licence: but for hawking,

hunting, &c. which are matters of pastime, pleasure, and recreation, there

needeth no licence, but every one may in his own land use them at his pleasure

17. [Ed.: Bracketted text omitted in the 1658 edition.]

18. [Ed.: by royal right.]

19. [Ed.: Bracketted text omitted in the 1658 edition.]

20. [Ed.: because what I cannot do by myself I cannot do through someone else.]

21. [Ed.: in a certain manner.]

22. [Ed.: of a wild nature, and no one’s property.]

[87 b]

Part Eleven of the Reports402

without any restraint to be made, if not by Parliament, as appeareth by the

Statutes of 11 Hen. 7. c. 17. 23 Eliz. c. 10. 3 Jac. Regis, c. 13. And it is evident

by the preamble of the said Act of 3 Edw. 4. c. 4. That the bringing in of

forreign Cards was forbidden at the grievous complaint of the poor Artiﬁcers

Cardmakers, who were not able to live of their trades, if forreign Cards should

be brought in; as appeareth by the preamble: By which it appeareth, That the

said Act provides remedie for the maintenance of the trade of making Cards,

for as much as the same maintain divers families by their labour and industry.

And the like Act is made in 1 Hen. 3. cap. 12. And therefore it was resolved,

That the Queen could not suppress the making of Cards within the Realm,

no more than the making of Dice, Bowls, Balls, Hawks-hoods, Bells, Lewers,

Dog-couples, and other like, which are works of labour and art, although they

shall be for pleasure, recreation and pastime, and they cannot be suppressed

if not by Parliament, nor a man restrained to use any trade but by Parliament.

37 Edw. 3. cap. 16. 5 Eliz. cap. 4. And the playing at Dice and Cards is not

forbidden by the Common Law, as appeareth M. 8 & 9 El. Dyer 154 (If not

that some be deceived by false Dice or Cards, and there he who is deceived,

shall have an Action upon this Case to the deceit) and playing at Cards, Dice,

&c. is not malum in se,

for then the Queen should not suffer, nor license

the same to be done. And where King Edward the third in the 39 year of his

reign commandeth the exercise of shooting and artillery, and forbiddeth the

exercise of casting of stones and barres, and the hand and foot-balles, cock-

ﬁghting, & alios ludos vanos,

as appeareth in dors’ claus’ de an. 39 Edw. 3.

nu. 23. yet no effect thereof followed, till divers of them were forbidden upon

a penalty by divers Acts of Parliament, viz. 12 Ric. 2. cap. 6. 11 Hen. 4. cap.

4. 17 Edw. 4. cap. 3. 33 Hen. 8. cap. 9.

Also such charter of a Monopolie, against the freedom of Trade and Trafﬁck,

is against divers Acts of Parliament, scil. 9 Ed.3. c.1&2.Which for the

advancement of the freedom of | Trade and Trafﬁck extendeth to all vendible

things, notwithstanding any charter of franchise granted to the contrary, or

usage, or custom, or judgment given thereupon; which charters are adjudged

by the same Parliament to be of no force, or effect, and made at the request

of Prelates, Barons, and Grandees of the Realm, to the oppression of the

23. [Ed.: wrong in itself,]

24. [Ed.: and other useless games,]

[88 a]

The Case of Monopolies 403

Commons. And by the Statute of 25 Ed. 3. cap. 2. It is Enacted, that the Act

of 9 E. 3. shall be kept, Holden, and maintained in all points. And it is further

thereby enacted, That if any Statute, Charter, Letters Pattents, Proclamation,

Command, Usage, Allowance, or judgment be made to the contrary, that the

same be utterly void, vide Magna Charta cap. 18. 27 Edw. 3. cap. 11, &c.

As to the second question, It was resolved, That the dispensation or licence

to have the sole importation and merchandizing of goods (without any lim-

itation or stint) nothstanding the said Act of 3 Edw. 4. is utterly against Law:

For it is true, That for as much as an Act of Parliament which generally

forbiddeth a thing upon penalty which is popular, or onely given to the King,

may be inconvenient to divers particular persons, in respect of person, place,

time, &c. And for this cause the Law hath given power to the King, to dispense

with particular persons; Dispensatio mali prohibiti est de jure Domino Regi con-

cessa, propter impossibilitat’ praeviden’ de omnibus particular’, et dispensatio est

mali prohib’ provida relaxatio, utilitate seu necessitate pensata.

But when the

wisdom of the Parliament hath made an Act to restrain pro bono publico

the

bringing in of many foreign manufactures, to the intent that the subjects of

the Realm might apply themselves to the making of the said manufactures,

&c. And thereby maintain themselves and their family with their handy labor.

Now for a private gain to grant the sole importation of them to one, or divers

(without any limitation) notwithstanding the said Act is a Monopoly against

the common law, and against the end and scope of the same Act; for the same

is not to maintain and encrease the labors of the poor Cardmakers within the

realm, at whose petition the Act was made, but utterly to take away and

overthrow their trade and labours, and that without any reason of necessity,

or inconveniency in respect, place or time, and so much the rather because

it was granted in reversion for years, as hath been said, but onely for the beneﬁt

of a private man, his Executors and Administrators for his particular com-

modity, and in prejudice of the Commonwealth. And King Edward the third

by his Letters Patents, granted to one John Peche the sole importation of

Sweet-wine into London, | and at a Parliament holden 50 Edw. 3. this grant

25. [Ed.: Dispensing with things that are wrong by prohibition (i.e. legislation) is rightfully granted

to the king, on account of the impossibility of providing for every particular Case; and a dispensation is

a release of the prohibited wrong, or a measure of necessity.]

26. [Ed.: for the public good.]

[88 b]

Part Eleven of the Reports404

was adjudged void, as appeareth in Rot. Parl. an. 50 Edw. 3. Mich. 33. Also

admit that such grant or dispensation were good, yet the plaintiff cannot

maintain an Action upon the Case against those who bring in any forreign

Cards, but the remedie which the Act of 3 Edw. 4. in such Case giveth ought

to be pursued. And judgment was given and entered, quod querens nihil caperet

per billam.

And note, Reader, and well observe the glorious preamble and pretence of

this odious monopoly. And it is true quod privilegia quae re vera sunt in prae-

judicium reipublicae, magis tamen speciosa habent frontispicia, et boni publici

praetextum, quam bonae et legales concessiones, sed praetextu liciti non debet

admitti illicitum.

And our lord the King that now is in a Book which he in

zeal to the Law and Justice commanded to be printed Anno 1610. intituled

A Declaration of his Majesties pleasure, &c. p. 13. hath published, That Mo-

nopolies are things against the Lawes of this Realm, and therefore expressly

commands that No Suitor presume to move him to grant any of them.

James Bagg’s Case.

(1615) Trinity Term, 13 James I

In the Court of King’s Bench.

First Published in the Reports, volume 11, page 93b.*

Ed.: James Bagg, a burgess of Plymouth, in Devon, was a bit curmudgeonly.

He called the mayor “some prince” with not a little sarcasm, as well as

calling him a “cozenly knave” whom the council could choose a wiser man

to replace. Bagg called another burgess a “knave” and yet another a “se-

ditious fellow.” He also suggested that the mayor was exceeding his au-

thority in making merchants take loyalty oaths, after which the merchants

refused to take them, provoked wine merchants not to pay a special town

wine tax, and suggested that he seek the revocation of the town charter.

The Mayor and burgesses voted to amove, or remove, Bagg from ofﬁce,

27. [Ed.: that the plaintiff take nothing by his bill.]

28. [Ed.: that privileges which in truth are to the prejudice of the common weal nevertheless have more

specious frontispieces and pretext of public good than good and lawful grants; but an unlawful thing ought

not to be admitted under the pretext of being lawful.]

*The initial pleadings in this case are to be found at 13 Jac. 1 Rot. 23.

James Bagg’s Case 405

and he was disenfranchised. Bagg sued in the King’s Bench. The court

considered the privileges of citizenship and their protection under the Com-

mon Law, Magna Carta, and other Statutes, held that the town could not

act on these grounds to remove someone from ofﬁce or the franchise. Note

also the broad claims of jurisdiction to cure errors by ofﬁcials. For other

privileges of citizenship, see also Calvin’s Case, p. 166.

James, by the grace of God, of England, Scotland, France, and Ireland,

King, defender of the faith, &c. To the Mayor and Commonalty of the bor-

ough of Plymouth, in the county of Devon, greeting, &c. Whereas James

Bagg, one of the twelve chief burgesses, or magistrates of the borough aforesaid,

according to the custom of the borough aforesaid, hitherto used, was duly

chosen and made. And whereas the same James, in the ofﬁce of one of the

twelve chief burgesses or magistrates of the borough aforesaid, a long time

carried and well governed himself; yet, you the mayor and commonalty of

the borough aforesaid, little regarding the aforesaid James, unduly, and without

reasonable cause, from the ofﬁce of one of the twelve chief burgesses and

magistrates of the borough aforesaid, unjustly have amoved, in contempt of

us, and to the no little damage and grievance of him the said James, and the

hurt of his estate, as we, by his complaint, have understood: we therefore to

the said James, willing, due, and speedy Justice to be done in this behalf, as

is just, command you, and every of you, as heretofore we have commanded

you ﬁrmly enjoining you, that immediately after the receipt of this writ, the

aforesaid James, into the aforesaid ofﬁce of one of the twelve chief burgesses

or magistrates of the borough aforesaid you restore, with all the liberties, privi-

leges, and commodities, to the ofﬁce aforesaid belonging and appertaining;

or that you signify the cause thereof unto us, lest in your default, complaint

thereof again to us come: | and how this our writ shall be executed you make

to appear to us, from the Day of the Holy Trinity, in three weeks, wheresoever

we shall be in England, under the penalty of 40l this our writ then sending

back to us, &c. Witness E. Coke, at Westminster, the 12th day of June, in

the 13th year of our reign, of England, France, and Ireland, and of Scotland

the 48th.

By the term of Trinity, in the thirteenth year of King James, Rot. 23. ex-

ecution of this writ doth appear in a certain schedule to this writ annexed,

John Clement, Mayor, the answer of the Mayor and Commonalty of the

borough of Plymouth to the writ, to this schedule annexed; according to the

[94 a]

Part Eleven of the Reports406

command of the writ aforesaid, to the lord the King we most humbly certify,

that the Lady Elizabeth, late Queen of England, by her letters patent, sealed

with the Great Seal of England, bearing date at Westminster the 28th day of

Feb. in the 43d year of her reign, for herself, her heirs and successors, granted

to the Mayor and Commonalty of the borough of Plymouth aforesaid, and

their successors, (amongst other things), that the mayor and Recorder of the

borough aforesaid, for the time being, during the time that they should happen

to be in their ofﬁces, and also the predecessors of the said mayor then alive,

and for the time being, and their successors, should be Justices of the said late

Queen, her heirs and successors; to keep the peace in the said borough, and

within the limits, precincts, and liberties thereof; and to be kept, and to cause

to be conserved and kept, without any command, commission, or warrant

for the same to be had, or to be obtained: and further to the said lord the

King we certify, that within the borough aforesaid, there is, and from time

whereof the memory of man is not to the contrary, there has been a usage

and custom, that the mayor and twelve chief burgesses of the same borough,

stood, and were of the private council of the borough aforesaid, and twenty-

four of the other most discreet burgesses of the borough aforesaid, for the

time being, to this chosen and sworn, stood, and were, together with the

aforesaid mayor and twelve chief burgesses, of common council of the borough

aforesaid, for the regulating and government of the same borough. And that

every such burgess who was chosen into the fellowship of the twenty-four

burgesses of the common council aforesaid, before he was to be admitted to

the said fellowship, should take a corporate oath before the mayor of the same

borough, for the time being, that he should carry himself well and honestly,

as well towards the mayor of the borough aforesaid, for the time being, as

towards the aforesaid twelve chief burgesses of the said borough for the time

being, and to them from time to time should shew reverence, and that he

should maintain and uphold the liberties and common proﬁt of the borough

aforesaid, with his best counsel and advice: | and further we certify, that every

one of the aforesaid twelve chief burgesses, from time to time chosen, should

be preferred by the mayor of the borough aforesaid, or the rest of the aforesaid

twelve chief of the burgesses, or by the greater part of them, for the time being,

only without the consent or assent of the aforesaid twenty-four, the other

burgesses who are (as before is said) of the common council of the borough

aforesaid, to this required. And further we certify, that the aforesaid James

Bagg, on the ﬁrst day of May, in the 32d year of the reign of the Lady Elizabeth,

He ought to

have ﬁrst pre-

scribed that

there had been

an incorpora-

tion of a may-

or, &c. from

time whereof,

&c. Vide 22 H.

6. Prescription

47.6E.6.

Dyer 71, &c.

Twelve chief

burgesses, de

privato consilio

burgi, it would

be more aptly

said, de privato

consilio majoris

et burgensium.

They do not

prescribe or al-

lege any char-

ter that they

may disfran-

chise any of

the corpora-

tion.

The oath of a

chief burgess.

[94 b]

They do not

prescribe in

this, and yet it

is against com-

mon right. 1.

Die Maii. 32

Eliz. James

Bagg chose one

of the twenty-

four.

James Bagg’s Case 407

late Queen of England, was duly chosen and appointed one of the aforesaid

twenty-four of the burgesses of the common council of the borough aforesaid

then being, and on the said ﬁrst day of May, in the 32d year aforesaid, at

Plymouth aforesaid, took a corporal oath before the mayor of the borough

aforesaid, according to the ancient custom aforesaid, that he the said James

would carry himself well and honestly, as well towards the mayor of the bor-

ough aforesaid, for the time being, as towards the other twelve chief burgesses

of the said borough for the time being, and to them from time to time would

shew reverence, and the liberties and common proﬁt of the borough aforesaid

would maintain and uphold with his best counsel and advice: and further to

the lord the King we certify, that the aforesaid borough of Plymouth is situate

so near to the shore and sea-coasts, that by reason thereof, and by reason of

the daily meeting there of ships and vessels there coming, as well from the

parts beyond the seas, as from elsewhere, many ill-minded men, as well aliens

as within born, of evil and perverse conversation, contemners of good gov-

ernment, and disturbers of the peace, in the ships and vessels aforesaid thither

coming, in the borough aforesaid, and within the liberties and precincts of

the same staying and remaining, are daily found, who can hardly be there

brought to the obedience of good rule and government, unless the authority

of the mayor of the borough aforesaid for the time being, and of the other

chief burgesses aforesaid, with due reverence of the other burgesses and in-

habitants of the said borough, be fortiﬁed, and the persons of the said chief

burgesses, and of the mayor, from the contempt of the vulgar be preserved:

and further to the said lord the King we certify, that the aforesaid James Bagg,

not ignorant of the premises, little regarding his oath aforesaid, and the au-

thority, as well of the mayor of the borough aforesaid for the time being, as

his late predecessors aforesaid, as the other the chief burgesses of the borough

aforesaid, setting naught by, and labouring and intending to bring the same

authority into contempt: on the ﬁrst day of May, in the 6th year of the reign

of the lord the now King, the said James being then one of the common

council of the borough aforesaid, and one of the chief burgesses of the same

borough, in the presence of one | Robert TreLawny, then being mayor of the

borough aforesaid, and of many other of the inhabitants of the borough afore-

said, at Plymouth aforesaid, within the borough aforesaid, contemptuously

and malapertly carried himself, as well in gesture as in words, toward the mayor

aforesaid; and then and there, to the aforesaid Robert TreLawny, contemp-

tuously and scofﬁngly, without any reasonable cause, these words following,

[95 a]

Part Eleven of the Reports408

openly and publicly said and spoke, that is to say, “You, (the aforesaid Robert

TreLawny meaning) are some prince, are you not?” And further to the said

lord the King we certify, that afterwards, that is to say, on the ﬁrst day of

February, in the 7th year of the reign of the lord the now King, the aforesaid

James Bagg continuing his evil disposition and intention aforesaid, at Plym-

outh aforesaid, in the presence and hearing of the aforesaid Robert TreLawny,

then being a Justice of the peace of the aforesaid lord the King, within the

borough aforesaid to be kept, by reason of his mayoralty of the borough afore-

said, the year then last past, by virtue of the letters patent aforesaid, and in

the presence and hearing of very many other of the inhabitants of the borough

aforesaid, openly, publicly, and with a loud voice, without any reasonablecause,

these words following, contemptuously, falsely, and scandalously said and

spoke, that is to say, “You, (the aforesaid TreLawny meaning) are a cozening

knave;” whereas in truth, the said Robert TreLawny, all his lifetime, honestly,

and from all suspicion of any falsity, fraud, or deceit, lived altogether unsus-

pected, and in the ofﬁces, as well of the mayoralty as of chief burgess of the

borough aforesaid, with praise, carried and governed himself: and further to

the said lord the King we do certify, that on the 20th day of November, in

the 7th year of the reign of the said lord the now King, the aforesaid James

Bagg, continuing his evil disposition and intent aforesaid, at Plymouth afore-

said, seditiously and maliciously stirred up, and persuaded one Thomas Sher-

vil, then being one of the chief burgesses of the borough aforesaid, that he

the said Thomas would join himself with the aforesaid James Bagg in a con-

spiracy, to amove and depose one John Battersby, then being mayor of the

borough aforesaid, from his ofﬁce of mayoralty, without any reasonable or

Lawful cause, and then and there maliciously and contemptuously spoke to

the aforesaid Thomas Shervill of the aforesaid John Battersby, these words

following, that is to say, “Master mayor (the aforesaid John Battersby meaning)

carrieth himself foolishly in this place; and if you will join with me, we will

turn him out of his mayoralty, and choose a wiser man in his place:” whereas

in truth the aforesaid John Battersby, during the whole time of his mayoralty

aforesaid, in the | executing of his ofﬁce aforesaid, carried himself well and

discreetly, and with great integrity and gravity. And further to the said lord

the King we certify, that afterwards, that is to say, on the ﬁrst day of February,

in the 8th year of the reign of the said lord the now King, the aforesaid James

Bagg continuing in his evil disposition and intent aforesaid, at Plymouth afore-

These words

are to be repre-

hended; but

are no cause to

disfranchise

him.

These words

are scornful,

and worthy of

punishment, sc.

to bind him to

his good be-

haviour, if they

were published

when the may-

or was sitting

in execution of

his ofﬁce: but

are no cause to

disfranchise the

delinquent.

These words

are no cause to

disfranchise

him. 1. Because

nothing was

done and it

might be, that

there was just

cause to re-

move him; and

the cause certi-

ﬁe ought to be

such that it

may appear to

the Court, that

it is a just

cause to dis-

franchise him;

for the party

grieved cannot

have an answer

to it.

[95 b]

James Bagg’s Case 409

said, in the Guildhall of the borough aforesaid, in the presence of one Thomas

Fowens, then being mayor of the borough aforesaid, in the presence and hear-

ing, as well of the chief burgesses as of the other inhabitants of the borough

aforesaid, scornfully, and without reasonable cause, did speak to the aforesaid

Thomas Fowens these false and injurious words following, that is to say, “Thou

(the aforesaid Thomas Fowens, then mayor meaning,) art an insolent fellow;”

whereas in truth the said Thomas, in the whole course of his life, bore himself

towards all men honestly, civilly, and with praise. And further to the said lord

the King we certify, that afterwards, that is to say, on the ﬁrst day of August,

in the 9th year of the reign of the said lord the now King, at Plymouth aforesaid,

in the presence and hearing of the aforesaid Thomas Fowens, and of very

many other of the burgesses of the borough aforesaid, being gathered together

in the Guildhall of the borough aforesaid, the aforesaid James Bagg continuing

his evil disposition and intent aforesaid, divers contemptible words of the

aforesaid Thomas Fowens, then being mayor of the borough aforesaid, with

a loud voice spoke and uttered; upon which the aforesaid Thomas Fowens,

with mild words admonishing the aforesaid James Bagg that he would desist

from uttering such contemptible words aforesaid, the aforesaid James Bagg

thereupon, then and there, that is to say, on the 10th day of August, in the

9th year abovesaid, at Plymouth aforesaid, and in the presence and hearing

of the aforesaid Thomas Fowens, then mayor of the borough aforesaid, and

very many others of the burgesses and inhabitants of the borough aforesaid,

and in contempt and disdain of the said Thomas Fowens, then mayor, turning

the hinder part of his body in an inhuman and uncivil manner towards the

aforesaid Thomas Fowens, scofﬁngly, contemptuously, and uncivilly, with a

loud voice, said to the aforesaid Thomas Fowens, these words following, that

is to say, (“Come and kiss.”) And further to the said lord the King we certify,

that afterwards, that is to say, on the 20th day of August, in the 9th year of

the reign of the lord the now King, at Plymouth aforesaid, the aforesaid James

Bagg, with most insolent words, threatened the said Thomas Fowens, then

being mayor of the borough aforesaid, without any reasonable cause; and then

and there, to the said John Fowens, threateningly and maliciously spoke these

words following, | that is to say, “I will make thy neck crack.” And further

to the said lord the King we certify, that afterward, that is to say, on the third

day of May, in the 12th year of the reign of the lord the now King, a certain

order and friendly instrument of admonition was made by John Scobb, mayor

As above.

This is against

good manners,

and worthy of

punishment as

aforesaid; but

no cause of

disfranchise-

ment, or of in-

dictment.

[96 a]

This is repug-

nant, sc. 3

Maii and 9

Maii.

Part Eleven of the Reports410

of the borough aforesaid, and the greater part of the chief burgesses of the

same borough, in these words, that is to say, “the 9th day of May, 1614, the

day and year above-written, it was agreed by John Scobb, Mayor, and such

other of the masters here underwritten, that if Mr. James Bagg, the elder, do

not before the next sessions to be holden within the borough of Plymouth,

reconcile himself to the said mayor and his brethren, for such wrongs as he

hath committed against them, and withal faithfully promise to demean himself

more orderly and temperately for the time to come, that then he shall be clean

removed from the Bench, and a new master chosen in his room:” which order

or instrument was made and subscribed by the said mayor and nine other of

the chief burgesses of the borough aforesaid. And further to the said lord the

King we certify, that the aforesaid James Bagg, before the aforesaid next ses-

sions, in the order aforesaid mentioned, did not make any such reconciliation

or promise or conformity, as in the order aforesaid is speciﬁed, although full

notice of the aforesaid order, immediately after the making thereof, and before

the aforesaid next sessions was given to him at Plymouth aforesaid. And further

to the said lord the King we certify, that afterwards, that is to say, on the 20th

day of February, in the 12th year of the reign of the said lord the now King,

the aforesaid James Bagg continuing his evil disposition, and in his intent

aforesaid, at Plymouth aforesaid, in the Guildhall of the borough aforesaid,

in the presence and hearing of John Scobb, one of the chief burgesses of the

borough aforesaid, and then being a Justice for the keeping the peace within

the borough aforesaid, by virtue of the letters patent aforesaid, by reason of

his mayoralty of the borough aforesaid, the year then next before, and in the

presence and hearing of the then mayor of the borough aforesaid, and of divers

others of the burgesses and inhabitants of that borough, contemptuously these

words following, spoke and uttered of the aforesaid John Scobb, openly and

publicly, falsely and scandalously, that is to say, “You (the aforesaid John Scobb

meaning) are a knave;” whereas the aforesaid John Scobb honestly, | and laud-

ably carried and governed himself. And further to the said lord the King we

certify, that afterwards, that is to say, on the 10th day of December last past,

the then mayor of the said borough, and divers of the chief burgesses of the

borough aforesaid, at Plymouth aforesaid, being assembled together in the

alms-house of the said borough, to require and receive an account of the over

seers, burgesses of the borough aforesaid, as in times past, and from time

whereof the memory of man is not to the contrary, it was used, the aforesaid

James Bagg, then and there, in the presence and hearing of the said mayor,

Here it appears

that he should

be removed by

the mayor and

nine of the

masters; and in

the end of the

return, it is al-

leged, that he

was removed

by the mayor

and common-

alty, which is

repugnant.

As above.

[96 b]

James Bagg’s Case 411

and other of the chief burgesses aforesaid, without any reasonable cause, openly

and publicly said to the said Thomas Shervill, there then present, and one of

the chief burgesses of the borough aforesaid, and for the space of ten years

then last past being, these false and scandalous words following; that is to say,

“You (the said Thomas Shervill meaning) are a seditious fellow;” whereas in

truth the aforesaid Thomas Shervill always lived unsuspected of any such crime

of sedition, and from time to time in the ofﬁce of mayor of the borough

aforesaid as in the place and ofﬁce of chief burgess, honestly, discreetly, and

with great integrity, carried and governed himself. And further to the said lord

the King we certify, that whereas the said lord the King, the day of

January, in the 12th year of his reign aforesaid, at Westminster in the county

of Middlesex, with the advice of the Lords of his Privy Council of this his

realm of England, ordained and commanded, by public proclamation, and

by letters written under the proper hands of divers of the Lords of his Privy

Council sealed, that none, nor any person whatsoever, should kill or put to

sale any ﬂesh for victuals in the time of Lent then next following, contrary

to the Laws and Statutes of this realm. And that all mayors, and other head

ofﬁcers, in boroughs and towns corporate, within this kingdom of England,

in the beginning of the time of Lent then next coming, or before, should cause

all victuallers, inn-keepers, keepers of ordinary tables, and alehouse-keepers,

within the precinct of their jurisdiction, to be bounden to the lord the King

by bond, that they should not dress any ﬂesh for victuals all the said time of

Lent, then next following: and whereas afterwards, that is to say, on the 20th

day of February, in the 12th year aforesaid, one John Clement, then, and yet

Mayor of the borough of Plymouth, aforesaid, | according to the duty of his

ofﬁce, and in obedience of the said ordinance and command of the said lord

the King, sent to all the victuallers, inn-keepers, keepers of ordinary tables,

and alehouse-keepers aforesaid, within the precinct of the borough aforesaid,

that they become bound by their writing obligatory, to the use of the lord

the King, according to the tenor and exigency of the aforesaid ordinance and

command of the said lord the King, and the due execution of the ordinance

aforesaid, in that behalf required and endeavoured to effect within the borough

aforesaid; the aforesaid James Bagg, well knowing the premises,and continuing

his evil disposition and intent aforesaid, at Plymouth aforesaid, endeavouring

and attempting to hinder and make void the due execution of the aforesaid

ordinance and command of the said lord the King; and to that purpose, on

the same 20th day of February, at Plymouth aforesaid, to divers inhabitants

As above.

[97 a]

Part Eleven of the Reports412

of the borough aforesaid, and other of the King’s liege people then being, and

having then and there speech with the aforesaid James Bagg, of and upon the

business aforesaid, the said James Bagg openly and publicly spoke and uttered

these words following, that is to say, “Master Mayor (meaning the said John

Clement) doth more herein than he need, and more than he can well answer;”

meaning, that the said John Clement, in requiring the aforesaid victuallers,

inn-keepers, keepers of ordinary tables, and alehouse-keepers, to become

bounden to the use of the said lord the King, according to the aforesaid or-

dinance and command of the said lord the King, had done more than was

needful, and more than he could well answer; by reason of which speech divers

victuallers, inn-keepers, keepers of ordinary tables, and alehouse-keepers,

dwelling within the aforesaid borough, utterly refused to be bounden to the

said lord the King, according to the aforesaid ordinance and command of the

said lord the King; and further we certify, that the aforesaid Mayor and Com-

monalty of the borough of Plymouth, and their predecessors, from time

whereof the memory of man is not to the contrary, had and used to have

within the borough aforesaid a certain custom of wine, called wine-weight,

otherwise wine-wite, payable by every taverner selling wine within the borough

aforesaid, of which custom of wine aforesaid the mayor and commonalty for

the whole time aforesaid quietly and peaceably were possessed of, until the

aforesaid James Bagg, on the 29th day of November, in the 4th year of the

reign of the said lord the now King, at Plymouth aforesaid, perﬁdiously and

maliciously practise with William Bently and Thomas Lyde, being taverners

and sellers of wine within the borough aforesaid, to them revealing divers

secret counsels concerning the common proﬁt of the borough | aforesaid; and

them the said William and Thomas then and there persuaded, that they no

more should pay the aforesaid custom of wine, called wine weight, otherwise

wine-wite, nor any farm or sum of money for the same, to the aforesaid mayor

and commonalty, on which very 29th day of November, in the 4th year afore-

said, the aforesaid James Bagg, being then one of the twelve chief burgesses

of common council of the borough aforesaid, at Plymouth aforesaid, perﬁd-

iously and maliciously spoke to the said William Bently and Thomas Lyde

these words, that is to say, “You need not pay the money,” (meaning a certain

farm by them the said William and Thomas for the custom aforesaid, before

then, to the aforesaid mayor and commonalty payable for the wine-weight)

“any longer, except you list, for it is not due unto them:” by reason of which

perﬁdious and malicious words the aforesaid William Bently and Thomas Lyde

This is no

cause of dis-

franchisement

without ques-

tion: also the

innuendo is

idle and vain.

They have not

alleged, that

there was a

corporation

from time

whereof, &c.

These words

are too general.

[97 b]

The same was

but his opin-

ion, which al-

though it be

false, is no

cause of dis-

franchisement:

and his opin-

ion cannot be

a prejudice to

their right; the

innuendo is

vain and idle.

Yet remedy lies

for this duty, if

they have right

to it by the

Law.

James Bagg’s Case 413

utterly refused to pay, and yet do refuse, and by reason thereof divers strifes

and controversies are risen, and hereafter are like to arise betwixt the aforesaid

William Bently and Thomas Lyde, and the aforesaid mayor and commonalty,

for the custom of wine aforesaid, and the farm aforesaid, to the great damage

and prejudice of the aforesaid mayor and commonalty: and further to the said

lord the King we certify, that the aforesaid James Bagg, on the ﬁrst day of

May, in the twelfth year of the reign of the lord the now King, and on divers

other days and times then before, at Plymouth aforesaid, perﬁdiously said to

divers inhabitants of the borough aforesaid, and to other the liege people of

the said lord the King, upon communication between them and the aforesaid

James Bagg then before had, of and concerning the liberties and privileges of

the borough aforesaid, “that he (the said James Bagg) would overthrow and

make void the charter of the borough aforesaid,” meaning the charter aforesaid,

by the aforesaid late Queen Elizabeth to the aforesaid mayor and commonalty,

as before is said, granted; and that he the said James the liberties and privileges

of the borough aforesaid, would call in question, and the same privileges and

liberties would overthrow. And further to the lord the King we certify, that

afterwards, that is to say, the 17th day of April now last past, the aforesaid

James Bagg in the said writ named, for the causes aforesaid, by the mayor and

commonalty of the borough aforesaid, from the ofﬁce of one of the chief

burgesses and magistrates of the borough aforesaid, was amoved, &c.

John Clement, Mayor.

| Upon the matter aforesaid, and for the causes aforesaid, it was resolved

by the Court, That there was not any just cause to remove him; and therefore

by the award of the Court, a writ was directed to the Major and Commonalty

to restore him.

And in this Case, ﬁrst, it was resolved, That Authority doth belong to the

Kings Bench, not only to correct errors in judicial proceedings, but other errors

and misdemeanors extra-judicial, tending to the breach of peace, or oppression

of the subjects, or to the raising of faction, controversy, debate, or to any

manner of misgovernment; so that no wrong or injury, either publick or pri-

vate, can be done but that the same shall be reformed or punished by the due

course of Law.

For the general learning of this and the like Cases, all that was said in the

argument of this Case, was divided into these questions.

1. What were sufﬁcient causes to disfranchise a Citizen, Free-man, or Bur-

Non ofﬁcit af-

fectus nisi se-

quatur effectus:

and it may be

the charter was

void in Law, or

that it was pro-

cured by the

lesser number

of the burgess-

es, and then it

might be re-

moved; and so

he might justi-

fy these words.

[98 a]

Part Eleven of the Reports414

gess of any City or Borough incorporate, and to discharge him of his freedom

and liberty, and what not?

2. How and by whom, and in what manner, such Citizen or Burgess shall

be disfranchised?

3. If the return of his removing and disfranchisement, doth carry sufﬁcient

matter, but the same is false; what remedy shall be for the party grieved in

such Case?

As to the ﬁrst, it was resolved, That the cause of disfranchisement ought

to be grounded upon an Act which is against the duty of a Citizen or Burgess,

and to the prejudice of the publick good of the City or Borough whereof he

is a Citizen or Burgess, and against his oath which he took when he was sworn

a Free-man of the City or Borough; for although one shall not be charged in

any Judicial Court for the breach of a general Oath, which he took when he

became Ofﬁcer, Minister, Citizen, Burgess, &c. yet if the act which he doth

be against the said duty and trust of his freedom, and to the prejudice of the

City or Borough, and also against his oath, it enforces much the cause of his

removal, and there is a condition in Law tacite`

and annexed to his Freedom

or Libertie; which if he breaks, he may be disfranchised; but words of Con-

tempt, or contra bonos mores,

although they be against | the Chief Ofﬁcer, or

his brethren, are good causes to punish him, as to commit till he has found

Sureties of his Good Behaviour, but not to disfranchise him. So if he in-

tends, or endeavours of himself, or conspires with others, to do a thing

against the duty or trust of his freedom, and to the prejudice of the publick

good of the City or Borough, but he doth not execute it, it is a good cause

to punish him, as is aforesaid, but not to disfranchise him, for Non ofﬁcit

conatus, nisi sequatur effectus;

and Non ofﬁcit affectus, nisi sequatur effectus.

And the reason and cause thereof is, that when a man is a Free-man of a City

or Borough, he has a freehold in his freedom for his life, and with others, in

their publick capacity, has an inheritance in the lands of the said corporation,

and interest in their goods, and perhaps the same concerns his trade and means

1. [Ed.: silently.]

2. [Ed.: against good morals,]

3. [Ed.: An attempt does no harm if it has no effect;]

4. [Ed.: A disposition does no harm if it has no effect.]

[98 b]

James Bagg’s Case 415

of living, credit and estimation; and therefore the matter which shall be a cause

of his disfranchisement, ought to be an act or a deed, and not a conation, or

an indeavour, which he may repent of before the execution of it, and from

whence no prejudice doth follow. And those who have ofﬁces of trust and

conﬁdence shall not forfeit them by endeavours and intentions to do acts,

although they declare them by express words, unless the act itself shall ensue,

as if one who has the keeping of a park should say, that he will kill all the

game within his custody, or will cut down so many trees within the park, but

doth not kill any of the game, nor cut down any trees, it is not any forfeiture,

et sic de similibus,

for in all such Cases, either there ought to be an Act, or

such a negligence as doth amount to so much scil. to the destruction of the

game, &c. If a Bishop, Arch-deacon, Parson, &c. fells all the trees, the same

is a good cause of deprivation, 2 Hen. 4. 3b. So if a prior aliens the land which

he has in jure domus suae,

it is a cause of deprivation, as appears in 9 Edw.

4. 34. a. If a prior makes dilapidation, it is a good cause to deprive him, as it

is held in 29 Edw. 3. 16 a. (20) 28 Hen. 6. 36 a. But if it be but a conation,

or endeavour without any act done, in none of those Cases is it any cause of

deprivation; for in those Cases, voluntas non reputatur pro facto.

And if a

contempt | (be it of omission or commission) should be a good cause to dis-

franchise, the best Citizen or Burgess might be, at one time or other, dis-

franchised, which would be great cause of faction and contention in cities and

boroughs.

As to the second, it was resolved, that no Free-man of any Corporation can

be disfranchised by the Corporation, unless they have authority to do it either

by the express words of the Charter, or by prescription: but if they have not

authority neither by Charter or by prescription, then he ought to be convicted

by course of Law before he can be removed; and it appears by Magna Charta,

cap. 29. Nullus liber homo capiatur, vel imprisonetur, aut disseisitur de libero

tenemento suo, vel libertatibus, vel liberis consuetudinibus suis, &c. nisi per legale

judicium parium suorum, vel per legem terrae,

and if the Corporation have

5. [Ed.: and likewise concerning similar things,]

6. [Ed.: in right of his house,]

7. [Ed.: the will is not to be taken for the deed.]

8. [Ed.: No free man shall be taken, or imprisoned, or disseised of his free tenement, or of his liberties

or free customs, etc., unless by the Lawful judgment of his peers or by the Law of the land.]

[99 a]

Part Eleven of the Reports416

power by Charter or prescription to remove him for a reasonable cause, that

will be per legem terrae;

but if they have no such power, he ought to be

convicted per judicium parium suorum, &c.

as if a Citizen, or Free-man, be

attainted of Forgery or Perjury, or conspiracy, at the Kings suit, &c. or of any

other crime whereby he is become infamous, upon such attainder they may

remove him: So if he be convicted of any such offence which is against the

duty and trust of his freedom, and to the publick prejudice of the City or

Borough whereof he is free, and against his Oath, as if he has burnt or defaced

the charters, or evidences of the City or Borough, or razed or corrupted them,

and is thereof convicted and attainted, these and the like are good causes to

remove him. And although they have Lawful authority either by Charter or

prescription to remove any one from the Freedom, and that they have just

cause to remove him; yet it appears by the return, that they have proceeded

against him without hearing him answer to what was objected, or that he was

not reasonably warned, such removal is void, and shall not bind the party,

quia quicunque aliquid statuerit parte inaudita altera, aequum licet statuerit,

haud aequus fuerit,

and such removal is against Justice and right.

As to the third question, if they have power by Charter or prescription to

disfranchise one, and afterwards the Judges of the Kings Bench award a Writ

to them to restore him, or signiﬁe the cause, &c. and they certiﬁe a sufﬁcient

cause to remove him, but it is false; then the Court cannot award a Writ to

restore him, neither can | any issue be taken thereupon, because the parties

are strangers, and have no day in Court; but the party grieved may well have

an Action upon the special matter against those who made the Certiﬁcate,

and aver it to be false; and if it is found for him, and he obtains judgment

against them, so that it may appear to the Justices that the causes of the return

are false, then they shall award a Writ of Restitution; and this is proved by

reason of the Book of 9 Hen. 6. 44 a. where it is held, that upon a corpus cum

causa,

if the cause returned be sufﬁcient, but in truth is false, the Court ought

to send back the Prisoner, and he is at no mischief, for if they have no authority,

or the cause be false, he may have a Writ of false imprisonment, vide Fitz. tit.

9. [Ed.: by the Law of the land;]

10. [Ed.: by the judgment of his peers, etc.]

11. [Ed.: because whoever settles something without hearing the other side, even if he settles it fairly,

does not act fairly,]

12. [Ed.: A form of habeas corpus, inquiring of the cause of an incarceration.]

[99 b]

James Bagg’s Case 417

Corpus cum causa, 2. the said cause of 9 Hen. 6. 44. well abridged. So in the

other, upon such false return, the party grieved may have a special action upon

his Case as is aforesaid.

Also if the party grieved, who is so disfranchised, be for the causes of his

disfranchisement committed to prison, or if his Shop be shut up, or if with

force he be removed out of their assembly, &c. in these and the like Cases he

may have an action of false imprisonment, or an action of trespass quaredomum

fregit,

or of assault and battery; and in those actions, the causes of his dis-

franchisement ought to be pleaded, and shall be decided according to Law,

8 Edw. 3. 437. 8 Ass. 29. 31. If a Lay-man is Patron of an Hospital, he may

visit it, and depose or deprive the Master for good cause: but if he is deprived

without just cause, and by colour thereof is ousted, he shall have an Assize

because he has no other remedy; but if the Ordinary deprives a Master who

is Ecclesiastical without a cause, he shall not have an Assize, for he has no

other remedy by appeal. Vide 6 Hen. 7. 14 a. F. N. B. 4 b. 27 Edw. 3. 85. 10

Eliz. Dyer 273. pl. 35.

Also it was resolved, That such return of disfranchisement ought to be

certain, so that sufﬁcient matter may appear to the Court to disfranchise the

party; and so much the rather, because the party cannot have answer to it, as

is said before.

Lastly, it was resolved, that for none of the causes contained in the said

Certiﬁcate, the said James Bagg by Law ought to be removed; and therefore

by the whole Court a Writ was awarded to restore him to his Franchise and

Freedom, and so he was.

| Note, Reader, in the Argument of this Case much was said to exhort

Citizens and Burgesses to yield obedience and reverence to the Magistrates

in their Cities and Boroughs, because they derive their authority from the

King, and obedientia est legis essentia,

and therefore it appeareth before, how

they shall be punished who commit any contempt against them. But the

principal question of this Case was, what Acts were sufﬁcient causes in Law

for the Disfranchisement of any Citizen or Burgess, &c.

Leges posteriores priores contrarias abrogant.

13. [Ed.: [to show] why he broke the close,]

14. [Ed.: obedience is the essence of the Law,]

[100 a]

15. [Ed.: Later laws abrogate prior and contradictory laws.]

Part Twelve of the Reports

The Twelfth Part of the Reports was published in 1656, after Coke’s death and

following the parliamentary restoration to his son of the manuscripts seized

by the Crown. It was published in English, in keeping with the new Laws

banishing the Law French of Law Books of the Stuart publishers for the plain

speaking of the Protectorate of the Commonwealth, as The Twelfth part of the

Reports of Sir Edward Coke, Kt. of Divers Resolutions and Judgments given upon

solemn Arguments, and with great Deliberation and Conference with the Learned

JUDGES in Cases of Law, the most of them very Famous, being of the Kings

especiall Reference, from the C

ouncil

able,

concerning the Prerogative: as for

the digging of Salt-peter, Forfeitures, Forrests, Proclamations, &c. and the Juris-

dictions of the Admiralty, Common Pleas, Star-Chamber, High Commission,

Court of Wards, Chancery. &c. and Expositions and Resolutions concerning Au-

thorities, both Ecclesiasticall and Civill, within this Realm. Also the Formes and

Proceedings of Parliaments, both E

ngland,

reland:

With an Exposition of

Poynings Law: With Alphabeticall Tables, wherein may be found the Principall

Matters contained in this Booke. The Twelfth Part of the Reports was not as

polished as those parts that appeared while Coke lived, and it is likely impossible

now to discern whether he intended to ﬁnish and publish these, or more, of

the notes from his manuscript. It is unlikely he intended all of these Cases to

be publicly read. Even so, the Case reports are very signiﬁcant, containing many

of Coke’s notes on the most politically volatile and constitutionally signiﬁcant

Cases of his career. The cautious acceptance of these notes is typiﬁed by the

note accompanying its initial publication, by Edward Bulstrode:

I have perused this Treatise, Intituled, the twelfth part of the Reports of Sir

Edward Coke Knight; and I do, upon my reading thereof, conceive the same to

be his Collections, and that the Printing of the same (containing very much good,

and useful learning) will be for the good of this Nation, and of the Professors

of the Common Law.

Edward Bulstrod.

The second of February, 1655

Ford and Sheldon’s Case 419

Ford and Sheldon’s Case.

(1606) Easter Term, 4 James I

In the Exchequer-Chamber.

First Published in the Reports, volume 12, page 1.

Ed.: Thomas Ford was a recusant, a person who refused to attend church

in violation of the Law, making himself liable for a ﬁne of £20 per month

for non-attendance and for other penalties, including forfeiture of hisgoods.

Ford lent money to Sheldon, who gave Ford a deed giving him interests

in some of his rents as well as recognizances, which are rather like the

modern promissory note, for £21,000. When Ford was convicted of re-

cusancy, the question arose of whether the recognizances, and the debt they

represented, could be forfeit to the crown. In the Exchequer before all the

judges and Chief Justice Popham of the King’s Bench, the court considered

that debts are goods, that a penal Law cannot be extended by equity, but

that the court construed the recognizances to have been entered in an effort

to keep the money that might have been forfeit.

In an information in the Exchequer-Chamber for the King, against Thomas

Ford, Esquire, Ralph Sheldon, Esquire, and divers others; the Case was thus.

Thomas Ford was at all times before the Statute of 23 Eliz. a Recusant; and

for money lent to Sheldon, some before 23 Eliz. and some after. Ford took a

Recognizance in the names of the other Defendants, and took also a grant of

a Rent-charge to them in fee, with condition of Redemption by Deed indented:

And the Recognizance was conditioned for performance of Covenants in the

said Indenture, and afterward the Statute of the 29 Eliz. was made, by which

it was enacted, that if default of payment was made in any part of payment

(viz.) of 20 l. for every month, &c. And that then and so often the Queens

Majesty by processe out of the Exchequer may take, seize, and enjoy all the

goods, and two parts, &c. And after the said Act, and before the 34th year of

the reign of the late Queen, Ford lent great summs of money to Sheldon, and

for assurance of it took a Rent-charge by Deed Indented, with condition of

Redemption: and took also several Recognizances in the names of some of

the other Defendants, for performance of Covenants, &c. as is aforesaid;which

Recognizances did amount in all to the sum of 21,000 l. all which were to

Part Twelve of the Reports420

the use of the said Ford, and to be at his disposition, and they were forfeited:

And afterwards, viz. 41 Eliz., Ford was convict of Recusancy, and did not pay

20 l. per mensem,

according to the Statute. And if upon all this Case the King

should have the beneﬁt of these Recognizances, was the question.

And this Case was debated by Counsell learned on both sides in Court.

And it was objected by the Counsell of Ford, that if the Recognizance had

been acknowledged to Ford himself, they should not be forfeited to the King,

for the Statute speaks only of Goods. And Debts are not included within the

word (Goods). And therefore, if the King grant all the Goods which came to

him by the Attainder of J. S., the Patentee shall not have Debts due to him,

for that the Grant only extends to Goods in possession, and not to things in

action. And this Act is a Penall Law, and shall not be extended by equity.

2. It was objected that these Recognizances were acknowledged good to

perform Covenants in an Indenture concerning a Rent-charge: And therefore

savers of the realty, and are not within the intention of the said Act, which

speaks only of Goods.

3. No fraud or covin appears in the Case; And then forasmuch as no Act

of Parliament extends to this Case, it was said, that the Common Law doth

not give any beneﬁt to the King: for at the Common Law, in a far stronger

Case, if Cestuy que use

had been attaint of treason; this use forasmuch | as

it was but a trust and conﬁdence, of which the Law did not take notice, it

was not forfeited to the King, and could not be granted: and if an Use shall

not be forfeited, of which there shall be a Possessio fratris, &c.

and which shall

descend to the heir; A multo fortiori,

a mere trust and conﬁdence shall not

be forfeited.

4. It was objected, that if the Forfeiture in this Case at the Bar accrues to

the King, by the Statute of 29 Eliz. it ought to be by force of this word (Goods):

But that shall not be without question in this Case. For Ford hath not any

Goods, but only a mere trust and conﬁdence, which is nothing in consideration

of Law.

And the Court cannot adjudge that these Recognizances belong to the King

1. [Ed.: each month,]

2. [Ed.: the person for whose beneﬁt a use has been established.]

3. [Ed.: Writ establishing the claim of a half-brother when another sibling has entered the land upon

the death of their ancestor.]

4. [Ed.: So much the more so,]

[2]

Ford and Sheldon’s Case 421

by equity of the said Statute, because it is penall: Also one Recognizance was

taken in the names of some of the other Defendants, before the Statute of

the 29 Eliz. which gave the Forfeiture.

And for that reason, it cannot be imagined that it was to defeat the King

of a forfeiture, which then was not in Esse,

but given afterwards.

As to the ﬁrst objection, it was answered and resolved by all the Barons

and by Popham, Chief Justice of England, and diverse others of the Justices,

with whom they conferred, that if the recognizances had been acknowledged

to the party himself, that they were given to the King without question for

personall actions are as well included within this word, Goods, in an Act of

Parliament, as Goods in possession. But inasmuch as by the Law things in

action cannot be granted over, for that cause by his generall grant, things in

action (which only he may grant by his prerogative) without special words

passe not for his Prerogative, can never passe by general words. And it was

afﬁrmed, that so it had been resolved before, That is to say, that Debts were

forfeited to the King by the said Act of the 29 Eliz. And where the Statute

saith, “shall take, seize, and enjoy all the Goods, and two parts, &c.” Although

a debt due to a recusant cannot be taken and seised, yet inasmuch as there is

another word, viz. Enjoy, the King may well enjoy the Debt; and by process

out of the Exchequer levy it; and so “take and seise” refers to two parts of

Lands in possession, and Enjoy relates to goods.

As to the second objection. It was originally for the loan and forbearance

of mony. And as well the Recognizance as the Annuity were made for the

security of the payment of the said money: Also when the Recognizances are

forfeited, they are but Chattels personal.

As to the third objection, there was Covin

apparent: for when he was a

Recusant continually after that Statute of the 23 Eliz. and for that chargeable

to the King, for the forfeiture given by the same Act, it shall be intended that

he took these Recognizances in the name of others, with an intent to prevent

the King of levying of the Forfeiture: and all the Recognizances, which were

taken in other men’s names after the said Act, shall be presumed in Law to

be so taken, to the intent to defeat the King of his Forfeiture: True it is, that

an Use or Trust shall not be forfeited for Treason or other offence by the

5. [Ed.: in being,]

6. [Ed.: A secret agreement to defraud; a conspiracy.]

Part Twelve of the Reports422

Common Law, because it is not a thing of which the Common Law taketh

any notice, for that Cestuy que use, hath neither Jus in re,

nor Jus ad rem;

but by the Common Law, when any act is done with an intent and purpose

to defraud the King of his lawfull duty, or Forfeiture by the Duty, or Forfeiture

by the Common Law, or Act of Parliament, the King shall not be barred of

his lawful Duty or Forfeiture Per obliquum,

which belongs to him by the

Law, if the act was made De directo.

And therefore if a man Out-lawed buy Goods in the names of others, the

King shall have the Goods in the same manner, as if he had taken them directly

in his own name: So if any Accountant to the King purchase Lands in the

names of others, the King shall seize those lands for mony due unto him. |

And this appears by the Case of Walter Chirton, Trin. 24 Ed. 3. Rot. 4 in

Scaccario, where the Case was, that Walter de Chirton was indebted to the

King 1800 l. which he had received of the King’s Treasure, and did purchase

certain Lands with the Kings money; and by Covin had caused the Vendor

to enfeoff his Friends in Fee to defraud the King, and notwithstanding took

the Proﬁts himself: and afterwards Walter Chirton was committed to the Fleet

for the said Debt. And all the matter was found by Inquisition, and by Judg-

ment the Land was seised into the King’s hands Quousque;

for in case of

the King, an act done by Covin, Per obliquum, shall be equal to on act done

De directo, to the party himself; for Rex fallere non vult, falli autem non potest:

See another President, Trin. 24 Ed. 3. Rot 11. Ex Recum. Regis, where one

Thomas Favell was Collector of Tithes and Fifteenths, and was seised of certain

Lands in Fee-simple, and having diverse Goods and Chattels, Die intromissionis

de collectione et levatione

of Tenths and Fifteenths Languidus in extremis al-

ienavit tenementa sua et bona et catalla diversis personis,

and died without

Heir or Executor. In this case by the Prerogative of the King, Proces was made

as well against the Ter-tenants, as against the possessors of the Goods and

7. [Ed.: A right in the thing,]

8. [Ed.: A right to the thing;]

9. [Ed.: By reference; implicitly,]

10. [Ed.: By order of the law, explicitly.]

11. [Ed.: “until;” a temporary prohibition, an order good until an event, such as payment of a debt.]

12. [Ed.: The king does not wish to deceive, and cannot be deceived:]

13. [Ed.: On the day of the audit of the collection and levying.]

14. [Ed.: in his last illness he alienated his tenements and goods and chattels to various persons,]

[3]

Case of Non Obstante 423

Chattells although they were not Executors, &c. Ad computandum pro col-

lectione praedicta et ad respondendum et satisfaciendum inde Regni, &c. Et hoc

per Cancellarium Angliae et Capitales Justiciarios Angliae, et aliorum Justici-

ariorum utriusque Banci; quod nota bene.

As to the fourth objection, Non refert, whether the duty to accrue to the

King by the Common Law, or by Statute; but be it the one way or the other,

no subterfuge that the party can use can defeat or defraud the King: and

although one of the recognizances was taken before the Statute of 29 Eliz. yet

that was to his use, and for that it is in the nature of a Chattell in him, and

was taken in the names of others to prevent the Queen of her forfeiture, which

she might have by the Act of 23 Eliz.; and although Ford was not convict

until 41 Eliz. that is not material, for at all times before that, he was subject

to a Forfeiture for his Recusancy.

Case of Non Obstante, or Dispensing Power.

First Published in the Reports, volume 12, page 18.

Ed.: In this note, Coke considers the limits on Parliamentary control of

the King, and when the King may act in his prerogative notwithstanding

an act of Parliament to the contrary. He resolves that Parliament cannot

bind the King in a matter within his personal prerogative but it may in all

other matters.

Note; a good diversity when the King shall be bound by act of Parliament,

so that he cannot dispence with it by any clause of Non obstante.

No Act can

bind the King from any Prerogative which is sole and inseparable to his person,

but that he may dispense with it by a Non obstante; as a Soveraign power to

command any of his Subjects to serve him for the publick Weal; and this

solely and inseparably is annexed to his person; and this Royall power cannot

be restrained by any act of Parliament, neither in Thesi, nor in Hypothesi,

15. [Ed.: To account for the aforesaid collection and to answer and make satisfaction to the lord king,

etc. And this was by the chancellor of England and the chief Justices of England, and the other Justices

of both benches: which note well.]

1. [Ed.: “Notwithstanding,” a clause or writ in which the recipient is excused from some obligation or

basis of duty.]

2. [Ed.: Statement [or] by Supposition.]

Part Twelve of the Reports424

but that the King by his Royall Prerogative may dispense with it; for upon

commandment of the King, and obedience of the Subject, doth his govern-

ment consist; as it is provided by the Statute of 23 Hen. 6. cap. 8. that all

Patents made or to be made of any Ofﬁce of a Sheriff, &c. for term of years,

for life, in Fee Simple, or in tail, are void and of no effect, any Clause or Parol

de non obstante, put, or to be put into such Patents to be made, notwith-

standing. And further, whosoever shall take upon him or them to accept or

occupy such ofﬁce of Sheriff by virtue of such Grants or Patents, shall stand

perpetually disabled to be or bear the ofﬁce of Sheriff within any County of

England by the same authority; and notwithstanding that by this Act, 1. The

Patent is made void. 2. The King is restrained to grant non obstante. 3. The

Grantee disabled to take the Ofﬁce; yet the King by his Royall soveraign power

of commanding, may command by his Patent, (for such causes as he in his

wisdom doth think meet and proﬁtable for himself and the Commonwealth,

of which he himself is solely Judge,) to serve him and the Weal publike, as

Sheriff of such a County for years, or for life, &c. And so was it resolved by

all the Justices of England, in the Exchequer-Chamber, 2 Hen. 7. 66. And so

the Royall power to pardon Treasons, Murthers, Rapes, &c. is a Prerogative

incident solely and inseparably to the person of the King; and for this Non

obstante an Act of Parliament to make the Pardon of the King void, and restrain

the King to dispense with this by Non obstante, and to disable him to whom

the Pardon is made to take or plead it, shall not bind the King but that he

may dispense with it: and this is well proved by the Act of 13 Ric. 2. Parliament

2. cap. 1. For by this it was enacted, that no Charter of Pardon from henceforth

be allowed by whatsoever Justices, for Murther, Treason, Rape of a woman,

not speciﬁed in the said Charter; and if it be otherwise, be the Charter dis-

allowed.

Note, This was the surest way that the Parliament could take to restrain

the King to pardon Murther, unless that he Pardon it by express terms, which

they thought the King would not, for they knew that the King could not be

restrained by any Act to make a Pardon; for mercy and power to Pardon is

a Prerogative incident, solely and inseparably to the person of the King: And

it hath oft-times been adjudged that the King can Pardon Murther by generall

words without any expresse mention, with Non obstante, the said Statute, see

4 Hen. 4. cap. 31. In which it was ordained that no Welshman be Justice, |

Chamberlain, Treasurer, Sheriff, Steward, Constable of a Castle, Escheator,

Coroner, or chief Forester, nor other Ofﬁcer whatsoever, nor Keeper of Re-

[19]

High Commissioners Power to Imprison 425

cords, &c. in any part of Wales, notwithstanding any Patent made to the

contrary, with clause of Non obstante licet sit Wallicus natus:

and yet without

question, the King may grant this with a Non obstante. So Purveyance for the

King and his household is incident solely and inseparably to the person of the

King, and for this cause the Act of Parliament held in time of H. 3. De tallagio

non concedendo,

tit. Purveyance, in Rastall, which bars the King wholly of

Purveyance, is void, as it appears in Co. lib. fol. 69. But in all such cases,

although that the King may dispense with Statutes, yet a generall dispensation

or grant without Non obstante is void; But in things which are not incident

solely and inseparably to the person of the King, but belong to every Subject,

and may be severed, there an act of Parliament may absolutely bind the King;

as if an Act of Parliament to disable any Subjects of the King, to take any

Land of his Grant, or any of his Subjects (as Bishops) (as it is done by the

Statute 1 Jac. c. 3.) to grant to the King, this is good; for to Grant or take

Lands or Tenements is common to every Subject; and for this it is not Proprium

quarto modo,

to Kings, Scilicet omni soli et semper.

Vide the Case of Deans

and Chapters upon the Statute of 13 Eliz. vide 8 Ric. 2. cap. 2. & 33 Hen. 6.

that none shall be Justice of Assise, &c. in the County where he was born or

did inhabite; and yet the King with special Non obstante may dispense with

this, for this belongs to the inseparable Prerogative of the King, Viz. his power

of commandment to serve, &c.

Q. If High Commissioners Have Power to Imprison.

(1607) Hilary Term, 4 James I

Conference in the Serjeants Inn.

First Published in the Reports, volume 12, page 19.

Ed.: In this note, Coke records a debate among the Judges and senior mem-

bers of the bar over whether the church court, the High Commission, has

3. [Ed.: Notwithstanding he was born a Welshman:]

4. [Ed.: Concerning the not granting of tallage, which is a delegated power to collect tolls or tax.]

5. [Ed.: “appropriate in the fourth manner.” Perhaps “fourth branch.” The signiﬁcance of this reference

here has so far evaded the editor and all his friends.]

6. [Ed.: that is to say, all, only and always.]

Part Twelve of the Reports426

the power to imprison. The Commission is limited only to hearing eccle-

siastical offenses and only a limited power of incarceration.

Note, Mich. 4 Jac. post prandium,

there was moved a question amongst

the Judges and Serjeants at Serjeants Inne, if the high Commissioners in Ec-

clesiasticall causes, may by force of their Commission imprison any man or

no?

First of all it was resolved, by all, that before the Statute of 1 Eliz. cap. 1.

the King might have granted a Commission to hear and determine Eccle-

siasticall causes; but then, notwithstanding any clause in their Commission,

the Commissioners ought to proceed according to the Ecclesiasticall Law al-

lowed within this Realm, for he cannot alter neither his temporal nor his

Ecclesiasticall Laws within this Realm by his Grant or Commission; Vide

Caudrey’s Case, Fifth Report. [And they could not in any case have punished

any delinquent by ﬁne or imprisonment unless they had authority so to do

by Act of Parliament.]

Then all the question rests upon the Act of 1 Eliz.

which as to this purpose rests upon three branches.

1. Such Commissioners have power to exercise, use, occupy, execute all

Jurisdiction Spirituall and Ecclesiasticall.

2. Such Commissioners by force of Letters Patents have power, to visit,

reform, &c. all Heresies, &c. which by any manner of Spirituall or Eccle-

siasticall power, &c. can, or lawfully may be reformed, &c. so that these

branches limit the jurisdiction, and what offences shall be within the Juris-

diction of such Commissioners, by force of Letters Patent of the King; and

this is all, and only such offences may lawfully be reformed by the Ecclesiasticall

Law.

3. The third branch is, that such Commissioners, after such Commission

delivered to them so authorised, shall have power and Lawful authority by |

virtue of this act, and the said Letters Patent, to exercise, use, and execute all

the premises according to the tenor and effect of the said Letters Patent. This

branch gives them power to execute their Commission. But it was objected,

that this branch doth not give the Queen power, by her Letters Patent, to

alter the proceedings of the Ecclesiasticall Law, or gave to the Queen absolute

1. [Ed.: after dinner,]

2. [Ed.: Bracketed text omitted from 1656 edition.]

[20]

Floyd and Barker 427

power by her Letters Patent to prescribe what manner of proceedings, or

punishment concerning the Lands, Goods, or bodies of the Subject; and this

appears by the title of the Act restoring to the Crown the ancient Jurisdiction,

so that the intent was to make restitution, and not any innovation in the

proceeding or punishment: And it was observed that this last branch gave to

them power to execute all the Premisses; according to the tenor and effect of

the said letters patent, so that these words, “So authorised” in the said Letters

Patents, hath relation only to the authority of the Letters Patent, before spec-

iﬁed; Viz. such as gave to them power to visit, reform, redress, order, correct,

and amend all Errors, Heresies, Scismes, Abuses, Contempts, and Enormities

whatsoever; which, by any manner of Spirituall or Ecclesiasticall power, can

or may lawfully be reformed, &c. These are the tenor and effect of the Letters

Patent before remembered; and if any other construction shall be made;

1. It shall be against the express letters, scilicet,

said Letters Patent.

2. It shall be full of great peril and inconvenience, for then not only im-

prisonment of body, but conﬁscation of lands, goods, &c. And some corporall

punishment may be imposed for Heresie, Scisme, Incontinence, &c. Also

power may be given to them to burn any man for Heresie; which would be

against the Common Law of the Land.

[Vide a notable Case adjudged in this point, Hill. 42 El. fol. 389. as to

imprisonment, Smith’s Case, for at the last Consultation was granted: And

at last by the better opinion, as to things committed to them by Commission,

they may put ﬁne and imprisonment.]

Floyd and Barker.

(1607) Easter Term, 5 James I

In the Court of Star Chamber.

First Published in the Reports, volume 12, page 23.

Ed.: This note records the decision of the Chancellor and both Chief Justices

that a person acquitted of murder cannot pursue for conspiracy the grand

Jury who indicted him, or any of the parties to the proceedings, although

he can sue someone who conspired out of court and later swore in court

3. [Ed.: that is to say,]

4. [Ed.: The provenance of this paragraph, from the 1656 edition, is uncertain.]

Part Twelve of the Reports428

as a part of a conspiracy. Judges are immune from suit. The Case is an

important basis for the Common Law immunity from suit of Judges and

counsel.

In this very Term, between Rice ap Evan ap Floyd, and Richard Barker,

one of the Justices of the Grand Sessions in the County of Anglesey, and other

defendants: It was resolved by Popham and Coke, Chief Justices, the Chief

Baron, and Egerton, Lord Chancellor, and all the Court of Star Chamber,

that when a grand Inquest indicts one of Murther or Felony, and after the

party is acquitted, yet no conspiracy lies for him who is acquitted, against the

Indictors, for this that they are returned by the Sheriff by processe of Law to

make enquiry of offences upon their Oath, and it is for the service of the King

and the Common-wealth. And as it is said in the 10 Eliz. 265. they are com-

pellable to serve the Law, and the Court: and their Indictment or Verdict is

matter of Record, and called Veredictum,

and shall not be avoided by surmise

or supposal, and no attaint lies, And for this reason they shall not be impeached,

for any conspiracy or practice, before the Indictment: for the Law will not

suppose any unindifferent, when he is sworn to serve the King: And with this

agrees the Books in 22 Ass. 77. 27. Assise, p. 12. 21 Edw. 3. 17. 16 Hen. 6. 19.

47 Ed. 3. 17. 27 Hen. 8. 2. F. N. B. 115 a. But it is otherwise of a Witnesse,

for if he conspire out of the Court, and after swear in the Court, his Oath

shall not excuse his conspiracy before; for he is a private person, produced by

the party, and not returned by the Sheriff, who is an Ofﬁcer sworn, and the

Jurors are sworn in Court as indifferent persons: And the Law presumes, that

every juror will be indifferent when he is sworn; Nor will the Law admit proof

against this presumption.

2. It was resolved, that when the party indicted is convict of Felony by

another Jury, upon “Not guilty pleaded,” there he never shall have a Writ of

Conspiracy, but when the party upon his arraignment is Legitimo modo ac-

quietatus:

but in the case at the Bar, the grand Jury who indicted one William

Price for the murder of Hugh ap William, the Jury, who upon not guilty

pleaded, convicted him, were charged in the Star Chamber for Conspiracy

against him, and indicted and convicted, which manner of Complaint was

1. [Ed.: Verdict, (literally, “true statement”).]

2. [Ed.: In Lawful manner acquitted.]

Conspiracy

doth not

lye against

a Juror or

Indictor,

but against

a Witnesse.

Floyd and Barker 429

never seen before: for if the party shall not have a Conspiracy against the

Indictors, when the Prisoner is acquitted upon his indictment, a Multofortiori

when he is lawfully convict, he shall not charge neither the Grand Inquest

by whom he was indicted, nor the Jury who found him guilty: for the Law

in such Case doth not give any attaint, for this that he was indicted by the

Oath of twelve men at the least, and found guilty by twelve: And in these

Cases, the King is the sole party to the proceedings against the Prisoner: but

on the other side, when a Jury hath acquitted a Felon or Traitor againstmanifest

proof, there they | may be charged in the Star Chamber, for their partiality

in ﬁnding a manifest Offender not guilty, Ne maleﬁcia remanerent impunita.

And it will be a cause of inﬁnite vexation and occasion of perjury and smoth-

ering of great Offences, if such averments and supposals shall be admitted

after ordinary and judiciall proceeding: and it will be a means Ad deterrendos

et detrahendos juratores a servitio Regis.

3. It was resolved that the said Barker who was Judge of Assise, and gave

judgment upon the verdict of death, against the said W. P. and the Sheriff

who did execute him according to the said Judgment, nor the Justices of Peace

who did examine the Offender, and the Witnesses for proof of the Murther

before the Judgment, were not to be drawn in question in the Star Chamber,

for any Conspiracy, nor any witnesse nor any other person ought to be charged

with any Conspiracy in the Star Chamber, or elsewhere, when the party in-

dicted is convicted or attaint of Murther or Felony: and although the Offender

upon the Indictment be acquitted, yet the Judge, be he Judge of Assise, or a

Justice of Peace, or any other Judge, being Judge by Commission and of

Record, and sworn to do Justice, cannot be charged for Conspiracy, for that

which he did openly in Court as Judge or Justice of Peace: and the Law will

not admit any proof against this vehement and violent presumption of Law,

that a Justice sworn to do Justice will do injustice; but if he hath conspired

before out of Court, this is extrajudicial; but due examination of Causes out

of Court, and inquiring by Testimonies, Et similia,

is not any Conspiracy,

for this he ought to do; but subornation of Witnesses, and false and malicious

3. [Ed.: so much the more so.]

4. [Ed.: That wrongdoing should not remain unpunished.]

5. [Ed.: To deter and withdraw jurors from the service of the king.]

6. [Ed.: and similar [proofs],]

[24]

Part Twelve of the Reports430

Persecutions, out of Court, to such whom he knowes will be Indictors, to

ﬁnd any guilty, &c. amounts to an unlawful Conspiracy.

And Records are of so high a nature, that for their sublimity they import

verity in themselves; and none shall be received to aver any thing against the

Record itself; and in this point the Law is founded upon great reason; for if

the Judiciall matters of Record should be drawn in question, by partial and

sinister supposals and averments of Offenders, or any on their behalf, there

never will be an end of Causes: But Controversies will be inﬁnite; Et inﬁnitum

in jure reprobatur:

and for this it is adjudged in the 47 Ed. 3. 15. that a Judge

who hath a Commission, Viz. that is of Record, shall not be charged in Con-

spiracy; which is to be understood of what he did in Court, for the reasons

and causes aforesaid: and with this agree the Book, 21 Ed. 4. 67. & 27 Ass.

pl. 12. and the reason is for this, that though the party is acquitted, yet the

accusing stands with the Record: and accordingly was the Law taken in this

Case. But in an Hundred court, or other Court which not of Record, there

averment may be taken against their proceedings, for that it is no other than

matter in pais,

and not of Record; as it appears in the 47 Ed. 3. 15. Also one

shall never assign for Error, against that which the Court doth as Judges; as

to say, that the Jury gave Verdict for the Defendant, and the Court did enter

it for the Plaintiff, or to say that the party who levied the Fine was dead before

the Fine was levied, or such like. Vide 1 Hen. 6. 4. 39 Hen. 6. 52. 7 Hen. 7.

4. 11 Hen. 7. 28. 1 Mar. Dyer 89. But in a Writ of false Judgment, the Plaintiff

shall have a direct averment against that which the Judges in the Inferior Court

have done as Judges, Quia Recordum non habent’

and with this accords 21

Hen. 6. 34. And as a Judge shall not be drawn in question in the Cases aforesaid,

at the suit of the parties, no more shall he be charged in the said Cases before

any other Judge at the suit of the King. And for this in the 27 Ass. pl. 18. One

was indicted and arraigned at the suit of the King, that as he was a Justice of

Oyer and Terminer,

where certain persons were indicted | of Trespass before

him, he made an entry of Record, that they were indicted of Felony: And it

was adjudged that this Indictment was against the Law, for this that he was

7. [Ed.: And the inﬁnite is to be disapproved in Law.]

8. [Ed.: “on the country,” i.e., unsworn, or not a matter of record.]

9. [Ed.: Because they have no Record.]

10. [Ed.: A county criminal court.]

Averment.

[25]

Floyd and Barker 431

a Justice by Commission; and that is of Record; and this present act shall be

to defeat the Record, Hoc est,

to aver against that which he did as Judge of

Record, which cannot be by the Law. Vide 27 Ass. pl. 23. 2 Rich. 3. 9. 28 Ass.

pl. 21. 9 Hen. 6. 60. And it was said, that it was the case of one Nudigate,

who as a Justice of Peace had Recorded a Force upon a View, which he did

as Judge-upon-Record; and a Bill was exhibited against him in this Court, for

this, that he had falsely made a Record, where indeed there was not any Force:

and by the opinion of Catlyn and Dyer, chief Justices, it was resolved, that

that thing, that a Judge doth as Judge of Record, ought not to be drawn in

question in this Court.

Note well, that the said matters done at the Bar were not examinable in

the Star Chamber; and for this it was ordered and decreed by all the Court,

that the said Bill without any answer to it, by the said Richard Barker, shall

be taken off the File and cancelled, and utterly defaced: And it was agreed,

that insomuch as the Judges of the Realm have the administration of Justice

under the King, to all his Subjects, they ought not to be drawn into question

for any supposed corruption, which extends to the annihilating of a Record,

or of any judiciall proceedings before them, or tending to the Slander of the

Justice of the King, which will trench to the scandal of the King himself,

except it be before the King himself; For they are only to make an account

to God and the King, and not to answer to any suggestion in the Star Chamber;

for this would tend to the scandall and subversion of all Justice. And those

who are the most sincere, would not be free from continual Calumniations,

for which reason the Orator said well, invigilandum est semper, multae insidiae

sunt bonis.

And the reason and cause why a Judge, for any thing done by him as Judge,

by the authority which the King hath committed to him, and as sitting in

the seat of the King (concerning his Justice) shall not be drawn in question

before any other Judge, for any surmise of corruption, except before the King

himself, is for this; the King himself is De jure to deliver Justice to all his

Subjects; And for this, that he himself cannot do it to all persons, he delegates

his power to his Judges, who have the Custody and Guard of the King’s oath.

And forasmuch as this concerns the honour and conscience of the King,

11. [Ed.: That is.]

12. [Ed.: one must always be on one’s guard, for in good things there are many snares.]

Part Twelve of the Reports432

there is great reason that the King himself shall take account of it, and no

other.

And Thorp who was drawn in question for corruption, before commis-

sioners, was held against the Law, and upon that he was pardoned; and it is

contained in the same Record, Quod non trahitur in exemplum.

Vide the

conclusion of the Oath of a Judge. Vide the Chronicle of Stow, 18 Edw. 3.

312.

Note, Thomas Weyland, Chief Justice of the Common-bench, Sir Ralph

Hengham Justice of the Kings Bench; and the other Justices, were accused

of Bribery and Corruption; and their causes were determined in Parliament,

where some were banished, and some were ﬁned and imprisoned.

Vide 2 Ed. 3. fol. 27. That the Justices of Trayl-baston

(so called for their

summary proceeding) were in a manner Justices in Eyre; and their authority

was founded upon the Statute of Ragman, which you may see in the old Magna

Charta, Vide the form of the Commission of the | Trayl-baston, Hollingshead,

Chron fol. 312. And note it appears by the said President and Chronicle, that

the King did examine the corruption of his Judges before himself in the Par-

liament, and not by force of any Commission.

Absurdum est afﬁrmare, recredendum esse non judici.

Of Oaths Before an Ecclesiasticall Judge Ex Ofﬁcio.

(1606) Easter Term, 4 James I.

First Published in the Reports, volume 12, page 26.

Ed.: In these notes Coke records the consultation between himself and the

Chief Justice Popham of the King’s Bench regarding a bill then in Parlia-

ment about the procedures for investigations by an ordinary, that is a bishop

hearing ecclesiastical Cases in his diocese. Their most important conclusion

was that no one may be punished for crimes of thought. There is also

important language regarding the Law, that it is the inheritance of the

subject and cannot be deprived in any way but by an act of Parliament.

13. [Ed.: that it should be drawn into a precedent.]

14. [Ed.: Also, “trail-baston,” established by the Statute of Rageman of 1276, to punish misdemeanors.

By the early ﬁfteenth century, they had been replaced by the commissions of oyer and terminer.]

15. [Ed.: It is absurd to afﬁrm that the thing adjudged is to be believed and not the Judges.]

[26]

Of Oaths Before an Ecclesiasticall Judge 433

Note, Pasch. 4 Jacobi, In the time of the Parliament, the Lords of the

Councell of Whitehall demanded of Popham, Chief Justice and myself, upon

motion made by the Commons in Parliament, in what cases the Ordinary

may examine any person Ex ofﬁcio

upon oath; and, upon good consideration

and view of our Books, We answered to the Lords of the Council at another

day in the Councell Chamber.

“1. That the Ordinary cannot constrain any man, Ecclesiasticall or Tem-

porall, to swear generally to answer to such interrogatories as shall be ad-

ministered unto him; But ought to deliver to him the Articles upon which

he is to be examined, to the intent that he may know whether he ought by

the Law to answer to them: and so is the course of the Star-chamber and

Chancery; the defendant hath the Copy of the Bill delivered unto him, or

otherwise he need not to answer to it.

“2. No man Ecclesiasticall or Temporall shall be examined upon secret

thoughts of his heart, or of his secret opinion: But somthing ought to be

objected against him what he hath spoken or done. No Lay-man may be

examined Ex ofﬁcio, except in two Causes, and that was grounded upon great

reason; for Lay-men for the most part are not lettered, wherefore they may

easily be inveigled and entrapped, and principally in Heresie and Errors: And

this appears by an Ordinance made in the time of Edward I. tit. Prohibition,

Rastal.”

The words of which Ordinance are, And Quod non permittant quod alioqui

laici in balliva sua in aliquibus locis conveniant, ad aliquas recognitiones per

juramenta sua faciendas, nisi in causis matrimonialibus et testamentariis.

And

the reason that the Ecclesiasticall Judge shall examine them in these two Cases,

is for this; that Contracts of Matrimony, and the Estates of the dead, are many

times secret; and they do not concern the shame and infamy of the party, as

Adultery, Incontinency, Usury, Simony, Hearing of Mass, Heresie, &c.

And for this cause in these cases, and such like, the Ecclesiasticall Judge

ought not to examine Partem ream,

upon their Oath: for as a civilian said,

that this was inventio diaboli ad destruendas miserorum animas ad infernum:

1. [Ed.: Of the ofﬁce.]

2. [Ed.: That they should not permit any laymen in their bailiwick to be convented in any places to

make any recognitions by their oaths, except in matrimonial and testamentary causes.]

3. [Ed.: The guilty (i.e. accused) party.]

4. [Ed.: an invention of the Devil to drag the souls of the wretched down to Hell:]

The Ordi-

nary can-

not enforce

a man to

answer gen-

erall Arti-

cles Ex Of-

ﬁcio.

Part Twelve of the Reports434

and in the Register, fol. 36. 6. there is a Prohibition in this form, Praecipimus

tibi quod non permittas quod aliqui laici ad citationem talis Episc’ aliquo loco

conveniant de caetero ad aliquas recognitiones factas vel sacramenta praestanda,

(the one is the exposition of the other) nisi in casibus matrimonialibus et tes-

tamentariis: and there is an attachment upon it, pone per vad’ talem Episc’:

quod sit coram Justiciariis nostris, &c. ostensurum quare fecit summoneri, et per

censuras eccles’ distringi laicas personas vel laicos homines et foeminas ad com-

parendum coram eo ad praestandum juramentum pro voluntate sua ipsis invitis

in grave coronae praejudicium | et dignitatis nostrae Regiae, necnon contra con-

suetudinem regni nostri; et habeas ibi nomina plegiorum, &c. teste, &c.

by which

it doth appear, that this was not only against the said Ordinance, but also

against the custome of the Realm, which had been time out of mind, and also

in prejudice of the Crown and Dignity of the King: and with this agrees F.

N. B. fol. 41. And vide the Case reported by the Lord Dyer, (but the Case is

not printed,) Trin. 10 Eliz. one Leigh, an Attorney of the Common Pleas, was

committed to the Fleet by the High Commissioners in a case Ecclesiasticall,

for this, that he had been at Masse, and refused to swear to certain Articles

to be proposed to him. And held, that although in such case, Ecclesiasticall

Jurisdiction is saved by the Statute of 10 Eliz. yet they ought not in such case

to examine upon his Oath: and hereupon he was delivered by all the Court

of Common Pleas [upon the return of the matter upon a habeas corpus.

]

And in Mich. 18 Eliz. Dyer, fol. 175. in Hind’s case, who would not swear

Commissionariis Eccles’ super articulos pro usura, et ea de causa commissus est

Gaolae de le Fleet.

He was delivered by Habeas corpus per totam Curiam.

This

was also because they could not imprison.

5. [Ed.: We command you that you should not permit any laymen at the citation of any bishop henceforth

to be convented to make any recognizances or take any oaths . . . except in matrimonial and testamentary

causes. (and there is an attachment upon it) Put by gage such and such a bishop that he be before our

Justices, etc. to show why he caused lay persons (or lay men and women) to be summoned and to be

distrained by the censures of the Church to appear before him to take an oath at his pleasure, against their

will, to the grave prejudice of the crown and of our royal dignity, and also against the custom of our realm.

And have their the names of the pledges, etc. Witness, etc.]

6. [Ed.: Writ to determine the legality of an incarceration. Note also, the bracketed text was omitted

from the 1656 edition.]

7. [Ed.: Before the ecclesiastical commissioners upon articles for usury, and for that cause was committed

to the Fleet gaol.]

8. [Ed.: by the whole court.]

[27]

Of Oaths Before an Ecclesiasticall Judge 435

Vide le Statute 25 H. 8. cap. 14. Which is declaratory as to this point: It

standeth not with the right order of Justice nor good equity, that any person

should be convict, and put to the losse of his life, good name, or goods, unless

it were by due accusation, and Witnesses, or by presentment, verdict, con-

fession, or processe of Out-lawry, &c. And it is not reasonable that any Or-

dinary upon suspition conceived of his own fancy, without due accusation or

presentment, should put any Subject of this Realm in infamy and slander of

Heresie, to the perill of life, losse of good name, or goods; (et Paulo antea)

the most expert and learned man of this Realm, diligently laying wait upon

himself, cannot eschew and avoid penalty and danger, &c. if he should be

examined upon such captious interrogatories, as is and hath been accustomed

to be ministred by the Ordinaries of this Realm, in Case where they will suspect

any man of Heresie: and this was the Judgment of all the said Parliament.

See F. N. B. Justice of Peace 72. Lamb, in his Justice of Peace 338. Crompt.

in his Justice of Peace 36. 6. In all which it appears, that if any be compelled

to answer upon his Oath, where he ought not by the Law, that this is oppression

and punishable before a Justice of Peace, a Justice of Assise, &c. for this is an

Article of charge, to enquire of all Oppressions: And as to that which was

objected, that for a very long time, divers had been examined upon Oath in

Ecclesiasticall Courts; as to this it was answered, that it might very well be,

and not against Law, for the words of the Treatise or Ordinance, and of the

So that if any assent to it, and

take it without exception, that is not Contra voluntatem eorum, But to enforce

any to take it, who ought not to take it by the Law, is a great oppression; but

if any person Ecclesiasticall be charged with any thing which is punishable

by our Law, as for usury, &c. there he shall not be examined upon Oath, for

this, that his oath is evidence against him at the Common Law, and to do it

incurs the penalty of the Statute: but witnesses may be cited to testiﬁe. Register,

tit. Consult. F. N. B. 53d. Also by the Statute 2 Hen. 4. cap. 15. it is provided,

that Dictus Diocessanus per se vel per Commissarios suos contra hujusmodi per-

sonas, &c. Et ad omne juris effectum, publice et judicialiter procedat et negotium

hujusmodi, &c. terminet juxta canonicas sanctiones, which words, Juxta Can-

onicas sanctiones,

give them power to proceed according to their Cannons,

9. [Ed.: and Paul before, an apparent reference to the trials of St. Paul. Acts 22–28.]

10. [Ed.: against their will, etc.]

11. [Ed.: the diocesan, by himself or by his commissaries, should proceed publicly and judicially against

Part Twelve of the Reports436

and excludes the Common Law; and by pretext of this in the cases mentioned

in the said act, they examined as well Lay-people as | Clerks, upon their Oaths

concerning Heresie, erroneous Opinions, &c. mentioned in the said act in

the Reign of Henry the fourth, Henry the ﬁfth, Henry the sixth, Edward the

fourth, Richard the third, Henry the seventh unto the time of the said Act

of 25 Hen. 8. And for this in the reign of Henry the eighth nor in the reign

of Edward the sixth no layman was examined upon his Oath, except in the

said two Cases of Matrimony and Wills: but in the Raign of Queen Mary,

this Act of 2 Hen. 4. was revived; and then all the Martyrs who were burnt

were examined upon their Oaths: and afterwards by the 10th Eliz. the said

Act of 2 Hen. 4. is repealed, by which the Common-Law is in full force and

effect: And for this cause all the pretence of possession and practice which the

Ecclesiasticall Courts have had is strongly answered by this which hath been

said, that the words of the said Treatise and Register are, Contra voluntatem

eorum, &c. And those who have so taken it have assented to it, and that stands

with Law.

Note, that King John

after he had murthered his Nephew Arthur, and

Neice Ellenor, the Issue of his elder Brother Geffrey, after he had lost Nor-

mandy, Aquitain, and Anjowe, after that his Commons for unjust vexation

disobeyed him, his Nobles revolted from him, the Clergy oppressed by him,

and that he stood excommunicated by the Pope, and his Kingdom interdicted,

he for his protection, granted by his Charter of 13 Maii, anno regni 14. sub-

mitted himself to the obedience of the Pope: And after in the fourteenth year

of his Raign, as one destitute of all succour and safety, and from day to day

in fear to lose his Crown, by another charter he resigned his Crown and Realm

to the Pope Innocent and his Successors, by the hands of Pandolph his Legate,

and took it of him again to hold of the Pope, which was utterly void, for this,

that the Dignity is an inherent, inseparable to the Royall blood of the King,

and descendable to the next of blood of the King, and cannot be transferred

to another, no more then a Duke, or Earl, or Baron, or other Dignity, may

transfer over their Dignity, for these are incidents inseparable; also the Pope

was an Alien born, and therefore was not capable of Inheritance within En-

such persons, etc. to the full effect of the Law, and determine such business, etc. in accordance with the

canonical rules.]

12. Math. Paris, 225, 226, 227, &c.

[28]

Of Oaths Before an Ecclesiasticall Judge 437

gland: By colour of which submission and resignation, the Pope and his Suc-

cessors exacted great summs of the Clergy and Layity of England, Pro com-

mutandis poenitentiis,

to maintain the height and dignity of the Pope: And

for the better inriching of the Coffers of the Pope, Pope Gregory the ninth

sent Otho Cardinalis de Carcere Tulliano, into this Realm, when there was

indignation betwixt Henry the third and his Nobles, to collect money for the

Pope, who did collect inﬁnite summs of money, so that it was said of him,

Quod legatus saginatur bonis Angliae,

which Legate held his Councell at Lon-

don, anno Domini 1237, and 22 Hen. 3. And for the better ﬁnding out Offences

which should be redeemed with money, he, with the assent of the Bishops of

England there assembled, made divers Cannons, amongst which one was, Jus

jurandi Calumniae in causis ecclesiasticis cujuslibet, et de veritate dicendi in spir-

itualibus quoque, ut veritas facilius aperiatur et Causae celerius determinentur,

Statuimus de Caetero prestari in Regno Angliae secundum Canonicas et legitimas

Sanctiones, obtenta in contrarium Consuetudine non obstante, &c.

By which Cannon it appears that the Law and Custom of England was

against this examination of the party Defendant upon his Oath, for it is said,

Statuimus de Caetero prestari in regno Angliae,

so that this was a new Law,

and took its effect De caetero.

2. Obtenta in contrarium Consuetudine non obstante.

And this very well

agrees with the Register and the said Treatise De Regia prohibitione, And the

other Authorities, That the Law and Custom of England | was, that Lay-people

in criminall causes, be they Ecclesiastical or Temporall, shall not be examined

upon their Oath (only in causes matrimoniall and testamentary) otherwise it

is of Clerks, as is aforesaid: And for this, that it appears by the said Cannon

it self, that this was against the Law and Custom of England; whence it follows

that this Cannon shall not bind, for that the Law and Customs of England

13. [Ed.: For commuting penances,]

14. [Ed.: That the legate grew fat on the plenty of England,]

15. [Ed.: We have enacted that an oath of accusation in ecclesiastical causes, and also for saying the

truth in spiritual matters, so that the truth may more readily appear, and causes be more speedily determined,

shall from henceforth be taken in the realm of England in accordance with the canonical and Lawful rules,

any custom obtaining to the contrary notwithstanding, etc.]

16. [Ed.: We have enacted that from henceforth it shall be taken in England.]

17. [Ed.: From henceforth.]

18. [Ed.: Any custom obtaining to the contrary notwithstanding.]

[29]

Part Twelve of the Reports438

cannot be changed without an Act of Parliament, for this, that the Law and

Custom of England is the Inheritance of [the subject,]

which he cannot be

deprived of without his assent in Parliament: And it appears in Linwood, cap.

Jure jurandi, fol. 8. 6. That Boniface, Bishop of Canterbury, anno 1272. and

57 Hen. 3. a little before the death of that King made this Cannon, Statuimus

quod Laici de subditorum peccatis et excessibus corrigendis per praelatos et judices

ecclesiasticas inquiratur ad praestandum de veritate dicenda sacramentum per

excommunicationis sententias. Si opus fuerit compellantur impedientes, vero ne

hujusmodi juramentum praestetur per interdicae est excommunicatio sententia

arceantur.

In which Cannon it is to be observed, that this extends to Lay-

people; for, as appears, the Ecclesiastical Judge may examine those of the Clergy

upon their Oathes; and note, Linwood, cap. Jure jurando, fol. 6. litera E. saith

so. Hic dicitur causa editionis hujus statuti, viz. Praelati Ecclesiastici procedebant

ad inquirendum de criminibus et excessibus subditorum suorum et laı¨ci (nota hic)

suffulti potestate dominorum temporalium in hujusmodi inquisitionibus nolu-

erunt jurare de veritate dicenda.

Note well what the cause was, why Lay-people refused to be examined for

Crimes and Excess.

2. It appears, that the Judges of the Common Law by their Prohibition did

interdict, &c. as it appears by the Register and the other Authorities; in the

time of Edward I. and other Kings, Incroachments were made upon the Sub-

jects, which are here called Impedimentes, but now the canon saith Impellat.

3. That where by the Law they may examine Lay-people upon their Oath,

In Causis matrimonialibus et testamentariis,

here Boniface makes this Cannon

to extend to Peccata et excessus,

which Cannon was utterly against the Law

and Custome of England. In like manner another was made by him at the

same time, Linwood, cap. De benef. fol. 231. which Cannon being made di-

19. [Ed.: Bracketed text omitted from the 1656 edition.]

20. [Ed.: We have enacted that laymen (who enquire) of the offences and excesses of subjects, which

are to be corrected by bishops and ecclesiastical Judges, may take an oath to speak the truth under sentence

of excommunication. If need be hinderers may be compelled . . .]

21. [Ed.: Here is stated the reason for the promulgation of this Statute, that is to say, that prelates of

the Church proceeded to enquire of the crimes and excesses of their subjects, and laymen (note this),

supporting the power of temporal lords, would not swear to say the truth in such inquisitions.]

22. [Ed.: Compel.]

23. [Ed.: In matrimonial and testamentary causes,]

24. [Ed.: Wrongs and excess,]

Of Pardons 439

rectly against the Judges, who did award processe against them, if they did

impose any pecuniary pain: And prohibites them the Judges with fear of ex-

communication, the Cannon being against Law, [the Judges]

prohibitesthem

notwithstanding this thundering of Excommunication in all ages. And the

scope and purpose of the said Cannon was to perplex the Subjects, and to

enrich themselves by punishment pecuniary; And this is declared by Act of

Parliament made 9 Ed. 2. called Articuli Cleri. Si praelati imponant Paenam

pecuniariam alicui pro peccato, &c. Regia prohibitio locum habet.

[Note this.]

Of Pardons.

(1607) Trinity Term, 5* James I.

Commentary.

First Published in the Reports, volume 12, page 29.

Ed.: In this note, Coke describes limits on the king’s power to pardon,

which may not be used to abrogate guilt but only punishment, which may

not be granted in advance of an offense, and which may only be granted

for crimes that are malum prohibitum, which is to say are wrong as a matter

of Law, and not crimes that are malum in se, or wrong by their very nature.

Nota, the Law so regards the Weal-publick, that although that the King

shall have the suit solely in his name for the redress of it, yet by his pardon

he cannot discharge the Offender, for this, that it is not only in prejudice of

the King, but in damage of the Subjects. As well for according of inﬁnite Suits

they cannot have private actions, and for that reason the Suit is given to the

King, not only for himself, but also for all his Subjects, | as if a man ought

to repair a Bridge, and for default of reparation it falls into decay: In this case

the Suit ought to be in the name of the King, and the King is sole party to

the Suit, but for the beneﬁt of all his Subjects. And for this, if the King pardon

25. [Ed.: Bracketed text omitted in the 1656 edition.]

26. [Ed.: If prelates impose a pecuniary penalty on anyone for an offence, etc. a royal prohibition shall

be available.]

27. [Ed.: Bracketed text omitted in the 1656 edition.]

*[Ed.: Note the 1656 and 1658 editions record this as “5 Jac. I,” which would be 1607. Later editions

record this note as dated “7 Jac. I,” or 1609.]

Bonum

publicum.

[30]

Part Twelve of the Reports440

it, yet the Offence remains; and in any Suit in the name of the King, for redress

of it, the Offender ought (notwithstanding the pardon) to make and repair

the Bridge for the beneﬁt of the Weal-publick: but peradventure the pardon

shall discharge the Fine for the time past; And with this agrees, 37 Hen. 6.

4. 6. Plow. Com. in Nicol’s Case, 487. where the words of the Law are; If a

Bridge or a High-way is repairable by the Subject, and is in decay, the pardon

of the King shall not excuse him which ought to do it, for this, that the other

Subjects of the King have interest in it. But note, if the pardon in such case

shall discharge the Fine, for inasmuch as the Offence cannot be pardoned,

this cannot discharge the Fine, but only for the time before the pardon: but

for the time after the pardon, without question the Offender for his default

shall be ﬁned and imprisoned; the same Law, and A multo fortiori

in case of

Depopulation; for this is not only an Offence against the King, but against

all the Realm; for by this the Realm is enfeebled; idle and dissolute people

which are Enemies to the Common-wealth, abound: And for this cause De-

population and diminution of Subjects is a greater nuisance and offence to

the Weal-publick, than the hindrance of the Subjects in their good and easy

passage by any Bridge or High-way: And for this, notwithstanding the pardon

of the King, he shall be bound to re-ediﬁe the houses of Husbandry which

he hath depopulated, but peradventure for the time before the pardon he shall

not be ﬁned, but for the time after without doubt he shall be ﬁned and im-

prisoned, for the Offence it self cannot be pardoned, as in the case of a Bridge

or High-way; Quia est malum in se:

But this continues as to the Fine and

Imprisonment at all times after the Pardon; but the penalty inﬂicted by the

Statute that may be discharged, Quia prohibitum.

Vide 3 Ed. 3. tit. Ass. 443.

Where an Abbot was bound to repair a Bridge by Prescription, and after the

King by his Charter discharged him, which Charter was allowed in a Quo

warranto.

And after the Abbot was indicted at the Suit of the King, for default

of reparation of the said Bridge, and he pleaded the said Charter and allowance:

And notwithstanding it was adjudged that he should repair the said Bridge,

for this, that although the Suit be in the name of the King for the Offence,

1. [Ed.: So much the more so.]

2. [Ed.: Because it is wrong in itself.]

3. [Ed.: Because it is (a wrong only) by reason of prohibition.]

4. [Ed.: Writ of right brought by the King against anyone who usurped or exceeded the scope of a

franchise or ofﬁce.]

Customs, Subsidies, and Impositions 441

yet the King cannot discharge it, for this, that it shall be to the prejudice and

damage of his subjects: but when the King chargeth his subjects for the making

of a bridge, or causey, or wall, &c. there the King may discharge of the pontage,

murage, &c. But when one is bound by prescription or tenure, &c. to repair

a bridge, &c. there the King cannot discharge of it. And all this appears in

the said Book.

And note,

if one be bound to the King in a Recognizance for to keep the

peace against one and other the Liege people of the King, in this case the

King, before the Peace broken cannot pardon or release the Recognizance, as

it is agreed in 11 Hen. 4. 43. 37 Hen. 6. 4. 1 Hen. 7. 10. And the reason is,

although the recognizance be made to the King solely; yet inasmuch as this

is made for the beneﬁt and safety of the subjects of the King, in such Case

it cannot be discharged.

Note, no licence can be made to do any thing that is malum in se,

but

malum prohibitum

may. 11 Hen. 7. 11. 3 Hen. 7. 39 Hen. 6. 39.

Customs, Subsidies, and Impositions.

(Bates’s Case).

Commentary.

First Published in the Reports, volume 12, page 33.

Ed.: Note of a conference between Coke and Popham, then the Chief Justice

of the King’s Bench, in which they resolve that the King is limited in placing

tariffs and customs on goods entering the kingdom, unless the proceeds

are for the beneﬁt of trade, that imports of goods except wool and leather

are free of customs under the Common Law, and that money raised in this

manner cannot be given to a subject. Taxes for maintenance of public struc-

tures should be apportioned to those who beneﬁt from them. Further, they

agreed that the King may prohibit a foreigner from entry but only for the

public good.

Note, upon conference between Popham, chief Justice, and my self, upon

a Judgment given lately in the Exchequer, concerning the imposition of Cur-

5. Vid. 35 Hen. 6 29 per Fortescue & 16 Ed. 3. grant 53.

6. [Ed.: wrong in itself,]

7. [Ed.: a wrong [only] by reason of prohibition.]

Customs,

Subsidies,

and Impo-

sitions.

Part Twelve of the Reports442

rants: And upon consideration of our Books, and of Statutes to this purpose:

It appeared to us that the rule of the Common Law is in the Register, Title

Ad quod Dampnum, and F. N. B. 222a. quod patria magis solito non oneretur

seu gravetur.

Also there is another Rule, that the King may charge his people

of this Realm without speciall assent of the Commons, to a thing which may

be of proﬁt to the common people, but not to their charge; As it is held in

the 13 of Hen. 4. 16. Et Statutum de Tallagio non concedendo, Nullum Tallagium,

seu Auxilium per nos, seu heredes nostros ponatur seu levetur absque voluntate et

assensu Parliamenti. Et Magna Charta, cap. 30. Omnes Mercatores (Nisi publice

antea Prohibiti fuerint) habeant Salvum et securum conductum abire de Anglia

et venire in Angliam, et morari et ire per Angliam, tam per terram quam per

aquam, ad eniendum et vendendum sine omnibus malis Toluetis per antiquas et

rectas consuetudines, praeterquam in Tempore Guerrae;

which Statute hath been

conﬁrmed more than thirty times by severall Acts of Parliament, vide le Statute

25 Ed. 1. 3 Ed. 1. in turri, 9 Ed. 3. cap. 1, & 2. 14 Ed. 3. 2. 25 Ed. 3. cap. 2.

&c. The effect of which is, that every Merchant of this Realm, or other, may

freely buy, sell, and passe the Sea with all their Merchandizes, paying the

Customs of ancient time used. Queen Mary put an imposition upon Cloathes,

which the 1 Eliz. Dyer 165. was moved and not resolved, vide 31 Hen. 8. Dyer

fol. 43. & 1 Eliz. 165. Magna Custuma et parva Custuma,

vide 9 Hen. 6. 12

& 35. And note there the saying of Babington. Note the 1 Eliz. Dyer 165. there

was Antiqua sive magna Custuma

at the Common Law, scil. for Wools, wool-

Fels, and Leather, and this was equall to strangers as well as Denizens. And

in the time of Ed. 1. a Merchant stranger, grants over the said Customs, 3s.

4d. which is called Nova seu parva Custuma.

Upon all which and divers Records which we had seen, it appeared to us,

that the King cannot at his pleasure put any Imposition upon any Merchandize

1. [Ed.: that the country should not be more burdened or harmed than is usual.]

2. [Ed.: The Statute for not granting tallage [provides that] no tallage or aid shall be imposed or levied

by us or our heirs without the will and consent of parliament.

And Magna Carta, ch. 30: All merchants (unless they were openly prohibited before) shall have safe

and sure conduct to leave England, and come into England, and to stay and go throughout England, both

by land and by water, to buy and sell without any evil tolls, by the ancient and rightful customs, except

in time of war;]

3. [Ed.: Great customs and petty customs,]

4. [Ed.: An ancient or great custom.]

5. [Ed.: A new or petty custom.]

Customs, Subsidies, and Impositions 443

to be imported into this Kingdom, or exported, unlesse it be for advancement

of Trade and Trafﬁc, which is the life of every Island, Pro bono publico.

if in foreign parts any imposition is put upon the Merchandizes of our Mer-

chants, Non pro bono publico,

and for to make equality, for the purpose to

advance Trade and Trafﬁck, the King may put an Imposition upon their Mer-

chandizes, for this is not against any of the Statutes which were made for

advancement of merchandize, or of the Statutes which were made for ad-

vancement of Merchandize, or of the Statute of Magna Charta, cap. 30. which

is, Si aliqui Mercatores de terra contra nos guerrina inveniantur in terra nostra

in principio guerrae attachientur, &c. Quo modo mercatores terrae nostrae trac-

tantur qui nunc inveniantur in terra illa, contra nos guerrina: Et si nostra salvi

sunt ibi, illi salvi sunt in terra nostra;

for the end of all such restraints is Salus

populi:

And so in the case of Currants, which was now lately adjudged in |

the Exchequer: also in the case of Customer Smith, which was adjudged in the

Exchequer, in the reign of Queen Elizabeth both the Impositions were im-

posed, upon the said reason to make equality, for this was the truth of both

cases (Scil.) The advancement of Trade and Trafﬁck, and for this cause such

Impositions were lawfull.

And it was clearly resolved by us, that such Impositions so put, cannot be

demised or granted to any Subject, for this, that it is to augment and decrease,

or be quite taken away upon just occasion for advancement of Merchandize.

And this was one of the reasons in Customer Smiths case, that it could not be

enused; also it was assessed after the Demise.

And although that the King may prohibit any person in some cases with

some Commodities to passe out of the Realm, yet this cannot be where the

end is private, but where the end is publick, Viz. To restrain the person for

this, that, Quam plurima nobis et Coronae nostrae prejudicialia in partibus exteris

6. [Ed.: For the public good.]

7. [Ed.: Not for the public good.]

8. [Ed.: If any merchants from a land at war with us are found into our land at the beginning of the

war, they shall be attached, etc. (until it is known) how the merchants of our land are treated when they

are found in the land making war against us; and if our merchants are safe there, they shall be safe in our

land.]

9. [Ed.: The weal of the people.]

[34]

Part Twelve of the Reports444

prosequi intendit,

and to restrain any Merchandizes either in time of Dearth,

or in time of War, for Necessitas est lex temporis.

It appeared unto us also, that at the Common Law no Custom was paid,

but only for wools, Wool-fels, and Leather, which is called in Magna Charta,

Recta consuetudo;

and all others are there called Mala tolneta.

which in the

Statute De Tallagio non concedendo is called Male. And at the beginning of

the Raign of Kings, it hath for a long time been used, by authority and consent

of Parliament, to grant to the King certain subsidies of Tonnage and Poundage,

for term of his life, which began in such form, 2 & 3 Hen. 5. in the 31 Hen.

6. c. 8. & 12 Ed. 4. c. 3. for the Defence of the Realm, and maintenance of

certain Wars, by act of Parliament, which proves, that the King by his own

power cannot impose it, but by consent of Parliament; but such subsidy of

Tonnage and Poundage might be granted by the King so long as he lived; for

this, that this is limited and given to the King in certain: But an Imposition

put for equality, as hath been said, hath not any certain continuance, but is

to be augmented, diminished, or taken away, for the beneﬁt of the Common-

wealth: And for that cause it cannot be demised, vide 31 Hen. 8. Dyer 43. 1

Mar. D. 92. 1 Eliz. Dyer. 165. 2, & 3 P. & M. D. 128. 12 Eliz. Dyer. 296. 23

Eliz. Dyer. 375. 45 Ed. 3. cap. 4. 27 Ass. pl. 44. Register 192, &c.

Vide M. Ch. cap. 30. they are called Consuetudines, et per vocabulum artis,

they are called Custuma, vide le Statute 51 Hen. 3. Title Exchequer in Rastall:

It appears that there were ancient Customs, and those were for Wools, Wool-

fels, and Leather, vide le Statute 9 Ed. 3. cap. 2. That all Charters and Letters

Patents against free Trade and Trafﬁck, made, or to be made, are void.

Vide Fortescue in his Comment of the Lawes of England, cap. 36. fol. 43.

Neque Lex per se vel per ministros suos Tallagia, subsidia, aut quaevis alia onera

imponit Legeis suis aut leges eorum mutat, vel novas condit, sine concessione et

assensu totius Regni sui in Parliamento suo expresso, &c.

vide fol. 13. cap. 9.

10. [Ed.: That he intends to pursue many things prejudicial to us and to our crown in foreign parts,]

11. [Ed.: necessity is the Law of the time.]

12. [Ed.: Rightful custom.]

13. [Ed.: Evil toll.]

14. [Ed.: Customs; and in technical vocabulary.]

15. [Ed.: Nor does the king, either by himself or his ministers, impose tallages, subsidies, or any other

burdens whatever upon his liege subjects, or change their Laws, or make new ones, without the concession

and consent of his whole realm expressed in his parliament, etc.]

Customs, Subsidies, and Impositions 445

And note for the beneﬁt of the Subject, the King may make an Imposition

or Toll within the Realm, to repair High-waies, Bridges, and to make Walls

for defence: But then the summ imposed ought to be proportionable to the

beneﬁt: And this appears the 13 Hen. 4. 16. So the Imposition for equality

ought to be for the public good, see the Charter 31 Ed. 1. which is called Charta

mercatoria, ex Rot. mercator. an. 31 Ed. 1. n. 42. Patents 3 Ed. 1. n. 1 et 9. de

sacco lanae dimidium marcae; lasta coriorum, 1 Mark, &c. Fines 3 Ed. 1. n. 24.

intus et non in dorso, vide Rot. Parliament. an. 13 Ed. 3.

No new Enhancement

of Customs without | common consent: And in 22 Ed. 3. n. 8. against new

Customs and Impositions, and that Merchants may freely passe, &c. And in

the Parliament An. 8 Hen. 6. n. 29. Amongst the new Impositions granted

by Henry the ﬁfth upon Merchandizes coming to Burdeaux: And Parliament

28 Hen. 6. n. 35. the Duke of Somerset accused for causing the King to grant

unto Sir Peirce Bracy an Imposition of Wines.

Parl. 9 R. 2. n. 30. against a Patent made to the Lieutenant of the Tower,

by colour of which he took Custom of Wine, Oysters, and other Victuals to

be void.

29 Ed. 3. 11 n. Ex Rot. Parliamenti, Subsidy of Wools granted for six years,

so as during the same time no other aid or imposition be laid upon the Com-

mons.

Parliament 5 Ed. 3. n. 17, 18, 19. against new Impositions upon Staple Com-

modities, Parl. 22 Ed. 3. n. 31. against Alnage of Worsteds, 5 Ed. 3. n. 163.

against all new Impositions, and 5 Ed. 3. n. 191. 38. Ed. 3. n. 26. Rot. Parl.

against unreasonable Impositions.

Parl. 7 Ric. 2. n. 35, 36. 9 Ric. 2. n. 30. No Inquisitions or Taxes without

consent of Parliament.

Note 2 Ric. 2 Parl. apud Glocestriam, act 25. Subsidy only for defensive

Wars, not for invasive, 1 R. 2. Parl. accord. 1 Ric. 3. against Benevolence, vide

Claus. 4 Ed. 3. n. 22. bis.

16. [Ed.: The Merchants’ Charter, from the merchants’ rolls of the thirty-ﬁrst year of Edward I, number

42. Patent (roll) for the third year of Edward I, numbers 1 and 9: for a sack of wool, half a mark; for a

last of leather, one mark, and so forth. Fine (rolls) for the third year of Edward I, number 24, inside and

not on the dorse. See the rolls of parliament for the thirteenth year of Edward III.]

[35]

Part Twelve of the Reports446

Buggery.

(1607) Michaelmas Term, 5 James I.

Commentary.

First Published in the Reports, volume 12, page 36.

Ed.: This note considers the history and criminalization of certain sexual

acts.

Nota, Bugarone Italice, is a Buggerer, and Buggerare is to buggar, so Buggary

cometh of the Italian word.

The Letter of the Statute of the 25 Hen. 8. cap. 6. If any person shall commit

the detestable sin of Buggary with Man-kind, or Beast, &c. it is Felony, which

act being repealed by the Statute, 1 Mar. is revived and made perpetuall by 5

Eliz. cap. 17. And he shall lose his Clergy.

It appears by the ancient Authorities of Law, that this was Felony; but they

vary in the punishment, for Brit. who writ 5 Ed. 1. cap. 17. saith, that “Sorcerers,

Sodomers and Heretics,” shall be burned. F. N. B. 269 a. agrees with it: But

Flet. lib. 1. cap. 35. Christiani autem Apostasi, fortilegi & hujus modi & comburi

(in this he agrees with Britton, Pecorantes et sodomitae terra vivi suffodiantur).

But in the ancient Book | called the Mirror of Justice vouched in Plowden’s

Commentaries in Fogosse’s case, the Crime is more high; for there it is called,

Crimen laesae Majestatis,

a sin horrible, committed against the King: And this

is either against the King Celestiall or Terrestrial in three manners: by Heresie,

by Buggary, by Sodomy. Note, that Sodomy is with Mankind, and it is Felony

by the Statute of 25 Hen. 8.; and therefore the judgment for felony doth now

belong to this offence, viz. to be hanged by the neck till he be dead. To make

that Offence, Oportet rem penetrare, et semen naturae emittere, et effundere, for

the Indictment is Contra ordinationem Creatoris et naturae ordinem rem habuit

veneream, dictumque puerum carnaliter cognovit.

Every of which (rem habuit,

1. [Ed.: The word is spelled “Buggary” in the 1656 edition.]

2. [Ed.: Apostate Christians should be drawn and burned. . . . Unnatural offenders and sodomites shall

be buried alive in the ground.]

3. [Ed.: A crime of le`se-majeste´ (treason).]

4. [Ed.: It is requisite to penetrate the ‘thing’ (rem), and to emit and shed the seed of nature, (for the

indictment is:) against the ordinance of the Creator and the order of nature, he had venery and carnal

knowledge of the said boy.]

Corone,

Buggery.

[37]

Premunire 447

et carnaliter cognovit

) imply penetration and emission of seed: And so it was

held in the case of Stafford, who was attaint in the King’s Bench and executed.

Paederastes amator puerorum,

whereof the Greek word is, Paideracı´a, Bug-

gary with boys, vide Rot. Parliament. 50 Edw. 3. 58. complained in Parliament

that a Lumbard did commit the sin that was not to be named: So in Rape,

there ought to be penetration and emission of Seed, vide Stamfford fol. 44.

Which Statute makes it Felony; he who procures, &c. or receives the Offender,

&c. is accessary.

The words of the Statute of West. 1. cap. 34. If a man ravish a woman, 11

Hen. 4. 18. If one aid another to commit Rape, and if he be present, he is

principal in the Buggary, &c, vide Leviticus 18, 22. and cap. 10, 13. 1 Cor. 6.

ver. 9, &c.

Premunire.

(1606) Easter Term, 4 James I.

First Published in the Reports, volume 12, page 37.

Ed.: This note discusses Coke’s view of the premunire, the writ by which

a Common Law court may bar an ecclesiastical court from hearing a case

brought by a plaintiff that was in the jurisdiction not of the church court

but of the Law court. If the Case begins appropriately in a church court,

but as it develops it appears to be more appropriately a Law Case, the Law

courts may issue a writ of prohibition against further proceedings in the

church court.

Note in the Book of Doctor Cosines, intituled an Answer, &c. to the Ab-

stract, and published 1584. And a Pamphlet now lately published by Doctor

Ridley, they would obtrude upon the World, That forasmuch as that now by

the act of 10 Eliz. cap. 1. all Spiritual and Ecclesiasticall power within this

Realm is annexed to the Crown, and the Law by which they determine causes,

which belongs to their Cognizance, is the Ecclesiasticall Law of the King: That

for that cause no Premunire lies against any Spirituall Judge for any Cause

whatsoever. And some other of their Profession have some other reasons to

conﬁrm it.

6. [Ed.: A pederast, a lover of boys.]

Premunire.

Vide 15 H.

7. 9. Pre-

munire was

at the

Common

Law.

5. [Ed.: had [venery] and carnally knew.]

Part Twelve of the Reports448

1. That when the Statute of Premunire was made, Viz. in the Raign of the

Kings Edward the third and Richard the second then the Pope usurped Ec-

clesiasticall Jurisdiction, although that De jure

it belonged to the King. And

therefore, forasmuch as the King is as well De facto,

as De jure, supream head

of all, as well Ecclesiasticall as Temporall; now the Cause being changed the

Law is changed also.

2. The conclusion of the Writ of Premunire is in Domini Regis contemptum

et praejudicium, et dictae Coronae dignitatum suarum laesionem et exhaereda-

tionem manifestam, et contra formam statuti, &c.

Which proves that the Ju-

risdictions shall be now severed and united to the Crown; For that which is

united to, and derived from the Crown, cannot be said contra Coronam et

dignitatem Regis.

3. The Court of high Commission is the Court of the King, and is by force

of an act of Parliament, and Letters Patents of the King: And for this, although

it may be said, that the Consistory Courts are Curiae episcoporum,

yet the

Court by force of high Commission is the Court of the King: And for that

reason their proceedings shall not be subject to Premunire.

4. This new Court is erected by act of Parliament, and Letters Patents of

the King: And for this, where the Statute of Ric. 2. speaks De Curia Romana

seu alibi, &c.

This (alibi) cannot extend to a Court erected by Parliament,

Anno 10 Reg. Eliz.

But to these Objections it was answered and resolved by divers Justices |

in this very Term, that without question the Statutes 37 Edw. 3. 16 R. 2. &c.

De Premunire, are yet in force: And all such proceedings, by colour of Ec-

clesiasticall Law before any Ecclesiasticall Judges, who were in danger of Pre-

munire, before the said act 1 Eliz. are now in case of Premunire after the said

act; be it before the Commissioners by force of a high Commission, or before

Bishops or other Ecclesiasticall Judges: For the said acts of Premunire are not

repealed by the said act 1 Eliz.

1. [Ed.: In Law.]

2. [Ed.: As a matter of fact,]

3. [Ed.: In contempt and prejudice of the lord king, and to the harm and manifest disinheritance of

his said crown and dignity, and against the form of the Statute, etc.]

4. [Ed.: against the king’s crown and dignity.]

5. [Ed.: Bishops’ courts.]

6. [Ed.: Of the Roman Curia or elsewhere, etc.]

[38]

Premunire 449

And as to the ﬁrst and second Objections, it was answered, that true it is,

that the Crown of England hath as well Ecclesiasticall as Temporall Jurisdic-

tion, De jure annexed to it, as appears by the Resolution in Cawdries case,

from age to age: And although this was De jure, yet when the Pope became

so potent and powerfull, he did usurp upon the King’s Ecclesiasticall Juris-

diction within this Realm; but this was but meer usurpation (for the King

cannot be put out of the possession of any thing which belongs to his Crown:)

And for this reason, all the Kings of this Realm Totis viribus proinde

for the

establishment of their temporall Law, by which they inherit the Crown, and

by which they govern their Subjects in Peace, and punish those who are re-

bellious, or who commit great Offences against them and their Crown: And

they were always jealous lest any part or point of their temporall Law should

be encroached upon: And for this, if the Ecclesiasticall Law usurp any thing

upon the temporall Law, this was severely punished: And the Offender es-

teemed and adjudged an Enemy to the King by the ancient Statutes; and every

one might have killed him before the Statute 5 Eliz. and this is the reason for

why; although both Jurisdictions belong to the Crown, yet inasmuch as the

Crown itself is directed and descendable by the Common Law, and all Treason

against the Crown punished by this Law; for this cause, when the Ecclesiasticall

Judge usurps upon the Common Law, it is said Contra Coronam et dignitatem,

&c.

And all the Prohibitions directed to the high Commissioners from year

to year, from the time of the making of the said Statute 1 Eliz. doth conclude,

Contra Coronam et dignitatem Regiam.

For, as it was resolved by all the Justices, Pasch. 4 Jac. Regis, est contra

Coronam et dignitatem Regiam, when any Ecclesiastical Judge doth usurp upon

the temporal Law, because as in all those writs it appeareth, the interest or

cause of the Subject is drawn ad aliud examen, that is, when the Subject ought

to have his cause ended by the Common Law, whereunto by Birthright he is

inheritable, he is drawn in aliud examen

(viz.) to be decided and determined

by the Ecclesiasticall Law: And this is truly said Contra Coronam et dignitatem

Regiam.

And this appears by all the Prohibitions (which are inﬁnite) which

7. [Ed.: Provide with all their might.]

8. [Ed.: Against the crown and dignity, etc.]

9. [Ed.: Against the royal crown and dignity, etc.]

10. [Ed.: into another forum.]

11. [Ed.: Against the royal crown and dignity.]

Part Twelve of the Reports450

have been directed to the high Commissioners and others after the said act

1 Eliz. A fortiori, he who offends in premunire shall be said to offend Contra

Coronam et dignitatem regiam: And this in effect answers to all the aforesaid

Objections; but yet other particular answers shall be given to every of them.

As to the third, although the Court by force of high Commission is the

Court of the King, yet their proceedings are Ecclesiasticall: And for this, if

they usurp upon the Temporall Law, this is the same Offence which was before

the said act of 10 Eliz. For this was the end of all the ancient acts, that the

Temporall Law shall not in any manner be emblemished by any Ecclesiasticall

proceedings.

As to the fourth, although it be a new Court, yet the ancient Statutes extend

to it within this word Alibi, and divers new Bishopricks were erected in the

time of Henry the eighth And yet there was never any question, but that |

the ancient Acts of Premunire extended to them.

But to answer to all the Objections aforesaid, founded upon the said Statute

of 1 Eliz. out of the words and meaning of the same act; For whereas the act

1 Eliz. repealed the Statute of 1 & 2 P. M. c. 8. there is an expresse Proviso in

the said act 1 Eliz. that that shall not extend to repeale any clause, matter, or

sentence contained or speciﬁed in the 1 & 2 P. M. which in any sort toucheth

or concerneth any matter or cause of Premunire; But that all of that, which

doth touch or concern any matter of Premunire, shall stand in force and effect:

and the clause of 1 & 2 P. M. which concerns matter of Premunire, is such,

every person who by any processe out of any Ecclesiasticall Court of the Realm,

or out of it, or by pretence of any Spirituall Jurisdiction, or otherwise, contrary

to the Lawes of the land, unquiet or molest any man for any thing, parcel of

the possession of any Religious house, shall incur the danger of the act of

Premunire, An. 16 Ric. 2. which proves that as well the act 1 & 2 P. M. as the

act 1 Eliz. which creates the high Commission Court, which refers to the act

of 1 & 2 P. M. intends by express words, that the act of 16 Ric. 2 of Premunire

shall stand in force: Also the act of 1 Eliz. revives the Act of 25 Hen. 8. cap.

10. which makes a Premunire in a Dean and Chapter, &c. for not electing,

nor certifying, or not admitting of any Bishop elected; by which it is directly

proved, that the act 1 Eliz. never intended to take away the offence of Pre-

munire, but expressly provided for it, as appears by that which hath been said.

But then we are to note in what Cases a Premunire lies, in what not.

And for this, that it is so penal, it is necessary that it should be explained

and made known.

[39]

Prima

Regula.

Premunire 451

In all Cases, when the cause originally belongs to the Cognizance of the

Ecclesiasticall Court, and suit is prosecuted there, in the same nature as the

Cognizance belongs to them (although in truth the cause, all circumstances

being disclosed, belongs to the Court of the King, and to be determined by

the Common Law) yet no Premunire lies in that case, but a Prohibition. As

if Tythes are severed from the nine parts, and are carried away: if the Parson

sue for the subtraction of these Tythes in the Spirituall Court, this is not within

the case of Premunire; for it may be that the Plaintiff did not know that they

were severed from the nine parts, nor that they were carried away; nor may

the Ecclesiasticall Judge know any thing of it: And although that the Defendant

pleads this, yet the Ecclesiasticall Court may proceed to try the truth of it

without danger, vide 10 Hen. 4. 2. according with this opinion; so if a Parson

sue for Tythes of Wood, surmising that they were Silvae caeduae,

under the

age of twenty years, where in truth they were above the age of twenty years:

(In which case by the Statute of 45 Ed. 3. Tythes ought not to be paid) yet a

Prohibition lyeth and no Premunire.

But although the cause originally may appertain to the Cognizance of the

Ecclesiasticall Judge, yet if he sue for it in the nature of a Suit, which doth

not belong to the Ecclesiasticall Court, but to the Common Law, there a

Premunire lyeth; as in the case put before: If the Parson after the severing of

Tythes, will in any Ecclesiasticall Court within this Realm, sue for carrying

away his Tythes severed from the nine parts, which action by matter apparent

to the Ecclesiasticall Court, appertains to the Common Law; In such Case

both the Actor and the Judge incur the danger of a Premunire: And so it was

adjudged in 17 Hen. 8. as Spilman reports it: One Turbervile sued a Premunire

against a Parson, who by citation convened him into the Ecclesiasticall Court

within this Realm, | and there Libell’d against him for taking of Tythes which

were severed from the nine parts, and the Parson was condemned, and had

Judgment that he should be out of the protection of the King, and forfeit all

his Lands, Goods, and Chattels, and his body to perpetuall Imprisonment,

and damages to the party. So if a Mortuary be delivered to a Parson, and after

the party re-take it, if the Parson sue for this as for a Mortuary to him delivered

and carried away, he is in case of a Premunire; but after the reprisal, if he sue

for it as mortuary not executed, in nature of a suit, which belongs to Court

12. [Ed.: Coppice-wood.]

Regula

prima.

Regula

secunda.

[40]

Part Twelve of the Reports452

Christian, upon the truth of the case there is cause of Prohibition, and no

Premunire lies, vide 10 Hen. 4. 2. So the case which hath been put of suit for

tythes of Wood, if the Parson sue for tythes of wood above twenty years growth,

so that it appears by the Libell, that the Cognizance of this case doth not

belong to Court Christian (viz.) to the Court of the Archbishop of Canterbury,

the Premunire lies as you may see in the Book of Entries, tit. Dismes, fol. 221.

But in the tit. Prohibition, fol. 449. Divisione Dismes, pl. 2, 3, 4, 5, & 6. if

the Suit be Pro silva caedua, &c. So that as the Suit is framed the Cognizance

belongs to Court Christian, although that the truth be otherwise, there a

Prohibition lies, and no Premunire. For when the cause originally belongs to

the Cognizance of the Ecclesiasticall Court, although they hold plea of any

incident to it, which belongs to the Common Law, there Prohibition and not

Premunire.

When the cause originally belongs to the cognizance of the Common Law,

and not to the Ecclesiasticall Court, there although they libell for it according

to the course of the Ecclesiasticall Law, yet the Premunire lyeth, for this, that

this draws the cause which is determinable at the Common Law, Ad aliud

examen,

viz. to be decided by the Civill or Ecclesiasticall Law; and so deprives

the Subject of the beneﬁt of the Common Law, which is his birth-right: And

with this agrees the Book of Entries, tit. Premunire, fol. 229 b. and 430 a.

where it is put for a Rule, Quod Placita, Querelae, et possessiones terrarum et

tenementorum transgr. debitorum et aliorum consimilium infra Regnum Angliae

illat. ad Dominum Regem ad Regalem Coronam et dignitates suas specialiter, et

non ad forum Ecclesiasticum pertinent. Quidem I. R., &c. machinans Dominum

Regem et Coronam et dignitates suas exheredare, et cognitionem quae ad Curiam

Domini Regis pertinet, ad aliud examen infra Regnum suum Angliae in Curiam

Christianitatis coram A. W. ofﬁcial. &c. trahere, &c. quendam articulum ad

prosequendum ipsum R. in eadem Curia Christianitatis coram praefato Ofﬁciali

pro debito 20 l. et ipsum R. in eadem Curia praefato I. A. inde responsum citari,

&c.

So that if the original cause be temporall, although that they proceed

13. [Ed.: Into another forum.]

14. [Ed.: That whereas pleas, plaints and possessions [sic ] of lands and tenements, trespasses, debts,

and other such like, within the realm of England, belong especially to the lord king and his royal crown

and dignities and not to the ecclesiastical court, a certain J.[A.], etc., scheming to disinherit the lord king

and his crown and dignities, and to draw the cognizance which belongs to the king’s court into another

forum within his realm of England, [exhibited] a certain article in court Christian before A. W., ofﬁcial,

Regula

tertia.

Premunire 453

by Citation, Libel, &c. in Ecclesiasticall manner, yet this is in danger of Pre-

munire: And the reason of this Offence is expressed in the Writ, for this, that

he endeavours to draw Cognitionem (causae,) quae ad Curiam Domini regis

pertinet, ad aliud examen,

which is as much as to say, that the Debt, the

Cognizance whereof belongs to the Court of the King, and to be determined

by the Common Law, he intends by the Originall Suit to draw it to be de-

termined by the Ecclesiasticall Law.

And note, in the Indictment of Premunire against Cardinall Wolsey, Mich.

21 Hen. 8. it is said, Quod praedictus Cardinalis, &c. intend: ﬁnaliter anti-

quissimas Angliae leges penitus subvertere et enervare, universumque hoc Regnum

Angliae et ejusdem Angliae populum, legibus imperialibus, vulgo dictis legibus

Civilibus et eorum legum Canonibus in perpetuum subjugare | et subjicere, &c.

and this is included within these words, Ad aliud examen trahere,

viz. to

decide that by the Civill and Ecclesiasticall Lawes, which is determinable by

the common Law: And upon this was a notable case in Hil. an. 25 Hen. 8.

the case of Nich. Bishop of Norwich, against whom, he then being in the custody

of the Marshalsey, the Kings Attorney preferred a Bill of Premunire: And the

matter of the Premunire was such. Within Thetford in the County of Norfolk

hath been De tempore cujus, &c.

such Custom, that all Ecclesiasticall Causes

arising within that Town should be determined before the Dean of the same

Town, who hath within it peculiar Jurisdiction; and that none in the same

Town shall be drawn in plea in any other Court Christian for Ecclesiasticall

Causes, unless before the same Dean: and if any be against the said Custom

drawn in Suit before any other Ecclesiasticall Judge, and this be presented

before the Mayor of the same Town, that such party shall forfeit 6s. 8d. And

that one such sued in the Consistory of the said Bishop, for a thing arising

within the said Town of Thetford, and this was presented before the Mayor,

[of Thetford according to the custom,] for which he hath forfeited 6s. 8d. the

said Bishop cited the said Mayor to appear before him at his house in Hoxin,

etc., to sue the selfsame R. in the same court Christian before the said ofﬁcial for a debt of twenty pounds,

and [caused] the said R. to be cited in the same court to answer the said J. A. therein, etc.]

15. [Ed.: The cognizance of the cause, which belongs to the lord king’s court, into another forum.]

16. [Ed.: That said cardinal intended to complete, undermine, and subvert the most ancient laws of

England, and to subject and subdue this whole realm of England and the people of this same England to

imperial law, commonly called civil law, and to the canons of this law.]

17. [Ed.: In another forum.]

18. [Ed.: From that time.]

[41]

Part Twelve of the Reports454

in Suffolk, generally Pro salute animae,

and upon appearance libelled, Pro

parole

upon all the matter, and enjoyned him upon pain of Excommuni-

cation to annul the said Presentment [before a day: and upon a Premunire

brought for this matter]: And the said Bishop had Counsell learned assigned

him; And they objected, that as well the said Presentment as the said Custom

were for divers causes void, and therefore it cannot be said, Contra Coronam

et dignitatem Regiam,

nor hath the Bishop drawn the party Ad aliud examen,

for it ought not to be examined in any Court.

2. They objected, that the Court of the Bishop was not intended within

the act of 16 Ric. 2. 32. but In Curia Romana aut alibi;

and this alibi ought

not to be intended out of the Realm, but it was resolved by Fitz-James chief

Justice, et per totam Curiam; That be the Custom and Presentment good or

not, this is a temporall thing and determinable by the Common Law, and not

examinable in the Spirituall Court; and for this the Bishop in this case hath

incurred a Premunire.

3. That Alibi extends as well to the Courts of the Bishops, and other Ec-

clesiasticall Courts within this Realm, as elsewhere: And so the Court said,

that it had been often times adjudged, upon which the said Bishop (the matter

of the Indictment being true) confessed the said Indictment: And upon this

appearing the secondary Justice gave Judgment against him, that the said

Bishop shall be out of the protection of the King, and that his Lands, Goods,

and Chattels should be forfeited to the King, and his body to be imprisoned

Ad voluntatem Regis, &c.

Nicholas Fuller’s Case.

(1607) 5 James 1.

In the Court of King’s Bench.

First Published in the Reports, volume 12, page 41.

Ed.: Coke’s notes here describe one of his more famous confrontations with

the church courts, in which he asserted the authority of the law courts to

19. [Ed.: For the salvation of his soul,]

20. [Ed.: By word.]

21. [Ed.: Against the royal crown and dignity,]

22. [Ed.: In the Roman Curia or elsewhere;]

23. [Ed.: According to the will of the king, etc.]

Nicholas Fuller’s Case 455

determine the extent of the powers of the church courts. He also speciﬁes

that the Law court cannot give a consultation or issue writs when it is not

in session, and that a Lawyer in court may be punished for his arguments,

in the Law courts if he offends the King or government, and in the church

courts if he commits heresy.

In the great case of Nicholas Fuller of Grayes Inn, these points were resolved

upon conference had with all the Justices and Barons of the Exchequer.

1. That no Consultation can be granted out of the Term, for this, that it

is an award of the Court, and is ﬁnall, and cannot be granted by all the Judges

out of the Term, nor by any of them within the Term out of Court: And the

name of the Writ, Viz. A Writ of Consultation, imports this, that the Court

upon consultation amongst them ought to award it.

| 2. That the construction of the Statute 1 Eliz. cap. 1., and of the Letters

Patents of high Commission in Ecclesiastical causes founded upon the said

Act, belongs to the Judges of the Common Law: For although that the causes,

the cognizance of which belongs to them, are merely Spirituall, and the Law

by which they proceed is merely Spirituall, yet their authority and power is

given to them by Act of Parliament, and Letters Patents, the construction of

which belongs to temporall Judges: And for this, the consultation which was

granted is with this restraint, Quatenus non agat de authoritate et validitate

literarum patentium pro causis Ecclesiasticis vobis vel aliquibus vestrum direct.

aut de expositione et interpretatione statuti de anno primo nuper Reginae, &c.

In the same manner as if the King hath a Beneﬁce donative by Letters Patents,

although that the Function and Ofﬁce of the Incumbent be Spirituall, yet

inasmuch as he comes to it merely by Letters Patents of the King, he shall

not be visitable, not deprivable by any Ecclesiasticall authority, but by the

Chancellor of the King, or by Commissioners under the great Seal.

3. It was resolved when there is any question concerning what power or

jurisdiction belongs to Ecclesiastical Judges, in any particular case, the de-

termination of this belongs to the Judges of the Common Law, in what cases

1. [Ed.: Provided there is no litigation concerning the authority and validity of the letters patent for

ecclesiastical causes directed to you or any of you, or concerning the exposition and interpretation of the

Statute of the ﬁrst year of the late queen, etc.]

Ecclesiasti-

call Com-

mission.

[42]

Part Twelve of the Reports456

they have cognizance, and in what not; for if the Ecclesiastical Judges shall

have the determination of what things they shall have cognizance, and that

all that appertains to their Jurisdiction, which they shall allow to themselves,

they will make no difﬁculty, Ampliare jurisdictionem suam:

And according

to this resolution, Bract. lib. 5. tract. de except. cap. 15. fol. 412. Cum judex

ecclesiasticus prohibitionem a Rege suscepit, supersedere debet in omni casu, saltem

donet constiterit in Curia Regia ad quam pertinet jurisdictionem; quia si Judex

ecclesiasticus aestimare debet an sua esset jurisdictio, in omni casu indifferenter

procederet non obstante Regia prohibitione,

vide Entries, fol. 445. There was a

question, whether the Court Christian should have cognizance of a Lamp.

And a Prohibition was granted, Quod non procedant in Curia Christianitatis,

quousque in Curia nostra discussum fuerit, utrum cognitio placiti illus ad Curiam

nostram vel ad forum ecclesiasticum pertineat.

And if the determination of a

thing which appears to Court Christian, doth appertain to the Judges of the

Common Law, and the Judges of the Common Law have power to grant a

Prohibition. And all this appears in our Books, that the Judges of the Common

Law shall determine in what cases the Ecclesiastical Judges have power to

punish any Pro laesione ﬁdei,

2 Hen. 4. fol. 10. 11 Hen. 4. 88. 22 Edw. 4. 20.

So of the bounds of Parishes in 5 Hen. 5. 10. 39 Edw. 3. 23. So it belongs to

the Judges of the Common Law, to decide who ought to certiﬁe excom-

munication, and to reject the certiﬁcate, when the Ordinary or Commissary

is party, 5 Edw. 3. 8. 8 Edw. 3. 69, 70. 18 Edw. 3. 58. 12 Edw. 4. 9 Hen. 7. 1.

10 Hen. 7. 9. For this it was resolved clearly, that if any person slander the

authority or power of the high Commissioners, this is to be punished before

the Judges of the Common Law, for that the determination of their authority

and power which is given to them by the Statute, and the Letters Patents of

the King belongs to them, and not to Court Christian: And for this, that the

many articles objected against Fuller concerning the slander of their authority

2. [Ed.: To amplify their jurisdiction:]

3. [Ed.: When an ecclesiastical Judge receives a prohibition from the King, he ought to stop in every

Case until it has been decided in the King’s court to whom the jurisdiction belongs; because if the eccle-

siastical Judge should consider whether the jurisdiction is his, he would in every Case proceed indifferently,

without regard to the royal prohibition,]

4. [Ed.: That they should not proceed in court Christian until it has been decided in our court whether

cognizance of that plea belongs to our court or to the ecclesiastical jurisdiction.]

5. [Ed.: For breach of faith,]

Nicholas Fuller’s Case 457

and power, was solely determinable and punishable before the Judges of the

Common Law. One other restraint was added in the consultation: Et quatenus

non agat de aliquibus scandalis, contemptibus, seu aliis rebus, quae ad communem

legem aut statuta regni nostri Angliae sunt punienda et determinanda.

4. It was resolved, that if a Counsellor at Law, in his argument, shall | scandall

the King or his Government, Temporall or Ecclesiasticall, this is a Misde-

meanor and contempt to the Court; for this he is to be indicted, ﬁned, and

imprisoned, and not in Court Christian: But if he publish any Heresy, Schism,

or erroneous Opinion in Religion, he may be for this convened before the

Ecclesiastical Judges, and there corrected according to the Ecclesiastical Law:

for the Rule is, Quod non est juri consonum quod quis pro aliis quae in Curiis

nostris acta sunt, quorum cognitio ad nos pertinet, trahatur in placitum in Curia

Christianitatis

as it appears in the Book of Entries, fol. 448. So that the intent

is, that Heresie, Schism, or such enormous opinions in Religion, doth not

appertain to the Cognizance of temporall Courts: For this cause a Consultation

was granted, Quoad schismata, hereses, et inormiam impiam, vel pernitiosam

opinionem in religione, ﬁde, seu doctrina Christiana pie et salubriter stabilita

infra regnum nostrum Angliae, quorum cognitio ad forum ecclesiasticum spectat,

&c.

Vide Mich. 18 Hen. 8. Rot. 78. in Banco Regis. The case was, that a Leet

was held Jovis post festum Sancti Mich. Arch.

17 Hen. 8. of the Prior of the

house of S. John de Bethlehem de Sheine, of his Mannor of Levisham in the

County of Surrey, before John Beare the Steward there, a grand Jury was

charged to inquire for the King of all Offences inquirable within the said Leet,

where one Philip Aldwin, who was Resident within the said Leet, appeared

at the said Leet, Idemque Philippus sciens quandam Margaretam, uxorem Jo-

hannis Aldwin apud East Greenwich, infra jurisdictionem Letae praedictae, plu-

ries perantea corpus suum in adulterio vitiose exercuisse, ac volens ipsam Mar-

garetam pro republica in exemplum taliter offendere volentium legitime punire,

6. [Ed.: And so long as there is no litigation concerning any slanders, contempts, or other things, which

are to be punished and determined at Common Law or by the Statutes of our realm of England.]

7. [Ed.: That it is not consonant with Law that anyone should be drawn into plea in court Christian

for other things which are litigated in our courts and the cognizance whereof belongs to us.]

8. [Ed.: With respect to schismatic beliefs, heresies, and enormous impiety or pernicious opinion in

the Christian religion, faith or doctrine, as piously and wholesomely established within our realm ofEngland,

the cognizance whereof belongs to the ecclesiastical jurisdiction, etc.]

9. [Ed.: On the Thursday after the feast of Michaelmas.]

[43]

Part Twelve of the Reports458

ad dictam magnam juratam se personaliter exhibuit & eisdem sic juratis de dicta

mala & viciosa vita praefate Margaretae instructionem et informationem veraciter

dedit.

Upon which the said Margaret did draw the said Philip into the Court

of the Arch-bishop of Canterbury, and there did libell against him for defa-

mation of Adultery; And that the said Philip said in hisce anglicanis verbis;

Margaret Allen is a Whore and a Bawd, and it is not yet three weeks agone

since a man might take a Priest betwixt her legs; which english words were

parcell of the words by which he informed the Grand Inquest at the said Leet:

And upon this he had by award of the Court a Prohibition, by which Writ

it appears, Quod per leges hujus Regni Angliae omnes & singuli quicunque Domini

Regis subditi coram quibuscunque ipsius Domini Regis Justiciariis seu quocunque

alio viro judiciali ofﬁcio seculari fungente in aliqua juratam patriae jurati, vel

ad aliquas instructiones seu informationes alicui hujusmodi jurat in evidentias

dandas comparentes et evidentias dantes, ab omni impetitione et calumnia in

aliqua Curia Christianitatis propterea ﬁenda, quieti et liberi esse debent, et in

perpetuum penitus irreprehen.

And by this record it appears, & by the Statute

of 10 Edw. 3. c. 11. by which it is provided, that Indictors of Lay people or

Clerks in Turneys, and after delivering them before Justices shall not be sued

for defamation in Court Christian, but that the Plaintiff who ﬁnds himself

grieved shall have a Prohibition formed in the Chancery upon his case, which

was but an afﬁrmance of the common Law, for that the Statute provides only

for Indictors in the Turne only: And yet as well all Indictors in other Courts,

and all Witnesses, and all others who have affairs in the Temporall Courts,

shall not be sued or molested in Court Christian. vide Pasch. 6 Eliz. In the

Reports of the Lord Dyer, (which Case is not printed) John Halles in the Case

10. [Ed.: And the same Philip, knowing that a certain Margaret, wife of John Aldwin, had many times

before then at Greenwich, within the jurisdiction of the aforesaid leet, corruptly used her body in adultery,

and wishing Lawfully to punish the selfsame Margaret for the common good, as an example to others

wishing to offend in such manner,personally exhibited to the same grand Jury and truthfully gave instruction

and information to the same jurors concerning the said evil and vicious life of the said Margaret.]

11. [Ed.: in these English words;]

12. [Ed.: That by the Laws of this realm of England all and singular the lord king’s subjects whatsoever,

being sworn in a Jury of the country before whatsoever Justices of the selfsame lord king, or any other

man whatsoever performing a secular judicial ofﬁce, or appearing and giving evidence for the instruction

or information of any such juries, ought to be quit and free from any charge or accusation made in any

court Christian on that account, and utterly blameless for ever.]

Nicholas Fuller’s Case 459

of marriage, between the Earl of Hereford, and the Lady Katherine Gray,

declared his opinion against the sentence given by Commissioners Delegates

of the Queen, in a cause ecclesiasticall, under the great Seal: | And that the

said Sentence in dis-afﬁrmance of the said marriage was unjust, wicked, and

void, and that he thought that the said Judges Delegates had done against

their conscience, and could not render any reason for the said sentence: And

what offence this was, was referred to divers Judges to consider, by whom

upon great deliberation it was resolved, that this offence was a contempt as

well against the Queen, as to the Judges; and every of them were punishable

by the Common Law, by ﬁne and imprisonment: And that the Queen may

upon that sue for it in what Court she shall pleas: for the slander of a Judge

in point of his Judgment, be it true or false, is not justiﬁable, &c. And all this

appears by the Report of the Lord Dyer, so that in the said Consultation it

was well provided, that the high Commissioners should not intermeddle with

any scandall by the Common Law.

5. It was resolved, that when any Libell in Ecclesiasticall Court contains

many Articles, if any of them do not belong to the cognizance of Court Chris-

tian, a Prohibition may be generally granted; and upon motion made, con-

sultation may be made as to things which do belong to the Spirituall Juris-

diction; for the Writ of consultation with a Quoad,

is frequent and usuall,

but a Prohibition with a Quoad, is Rara avis in terra nigroque simillima Cygno.

And for these reasons it was resolved by all that the Prohibition in the case

at the Bar was well granted, which in truth was granted by Fenner and Crook

Justices in the time of the Vacation.

Note, these generall Rules concerning Prohibitions quae sparsim inveniantur

in libris nostris.

Non debet dici tendere in praejudicium ecclesiasticae libertatis quod pro Rege

& Repub. necessarium videtur.

Non est juri consonum quod quis super iis quorum cognitı´o ad nos pertinet in

Curia Christianitatis trahetur in placitum.

13. [Ed.: With respect to.]

14. [Ed.: A rare bird in the land, like a black swan.]

15. Articuli Cleri c. 8.

16. Entries 444–447.

[44]

Part Twelve of the Reports460

Episcopus teneat placitum in Curia Christianitatis de iis quae mere sunt spir-

itualia.

Prohibeatur de caetero Hospitalariis & Templariis ne de caetero trahant ali-

quem in placitum coram Conservatoribus privilegiorum de aliqua re cujus cognitio

ad forum spectat Regium.

Non concedantur citationes priusquam exprimatur super qua re ﬁeri debet

citatio.

19,20

The knowledge of all cases Testamentary, Matrimony, &c. by the goodnesse

of the Princes, and by the Lawes and Customs of the Realm appertain to

spiritual Jurisdiction.

6. It was resolved, that this especial consultation, being onely for Heresie,

Schism, and erroneous Opinions, &c. that if they convict Fuller of heresie,

Schism, or erroneous Opinion, &c. that if he recant the said Heresie, Schism,

or erroneous Opinion, that he shall never be punished by Ecclesiastical Law:

And after the said consultation granted, the said Commissioners proceeded

and convicted Fuller of Schism and erroneous Opinions, and imprisoned

him and ﬁned him two hundred pounds: And after in the same Term, Fuller

by his Councell moved the Court of Kings Bench to have a Habeas Corpus

et ei conceditur,

upon which Writ the Goaler did return the cause of his

detention.

17. Circumspecte agatis, &c.

18. West. 2. cap. 43.

19. [Ed.: which are found scattered in our Books:

That which appears necessary for the king and the common weal ought not to be said to tend to the

prejudice of the liberty of the Church.

It is not consonant with Law that someone should be drawn in plea in court Christian upon matters

whereof the cognizance belongs to us.

A bishop holds plea in court Christian concerning those things that are purely spiritual.

It is forbidden that from henceforth the Hospitallers and Templars should draw anyone in plea before

the conservators of their privileges in respect of any matter whereof the cognizance belongs to the royal

jurisdiction.

Citations shall not be granted until the matter upon which the citation is to be granted has been

expressed.]

20. Ibidem.

21. [Ed.: have a Writ of Habeas Corpus (or be released) and it was granted.]

Sir Anthony Roper’s Case 461

Sir Anthony Roper’s Case.

(1607) Michaelmas Term, 5 James I.

In the Court of King’s Bench.

First Published in the Reports, volume 12, page 45.

Ed.: One of the many grants of habeas corpus against the High Commis-

sion. Sir Anthony Roper was imprisoned by the church court for failing

to release funds for a pension owed from some of his lands to a local vicar.

The Justices of the Court of Common Pleas held that this offense was not

a heresy or other offense under the Statute giving jurisdiction to the High

Commission.

In the case of Sir Anthony Roper, who was drawn before the high Com-

missioners at the Suit of one Bulbrook the Vicar of Bentley, for a Pension out

of a Rectory Impropriate, of which Sir Anthony was seised in fee: And the

high Commissioners sentenced the said Sir Anthony to pay that, which he

refused; And upon this they committed him to Prison, who in this Term by

Habeas corpus

appeared in Court, upon the return of which Writ the matter

did appear: And it was well debated by the Justices, and was resolved, that

the said Commissioners had not authority or | commission in the said case,

for when the Acts of the 27 Hen. 8. and 31 Hen. 8. of Monasteries had made

Parsonages Impropriate, and other Religious Possessions Lay-fee, although

that Pensions were saved, yet as it appears by the Preamble of the act of 34

Hen. 8. cap. 16. those to whom the Pensions appertain, had not remedy for

the said Pensions, &c. And for this there it is provided, that if the Farmer or

Occupier of such Possessions shall wilfully deny the payment of any such

Pensions, Portions, Corrodies, Indemnities, Synod Proxies, or any other Prof-

its, whereof any Arch-bishop, Bishop, Arch-deacon, or any other Ecclesiastical

person were in possession at, or within ten years next before the time of such

dissolution of any such Monastery, &c. that then it shall be lawfull for the

said Arch-bishop, Bishop, or other Ecclesiastical person aforesaid, being so

denied to be satisﬁed and paid therof: And having right to the thing in demand,

to have such processe, as well against every such person and persons, as so

shall deny payment, &c. as against the Church and Churches charged with

1. [Ed.: Writ determining the legality of an incarceration.]

[46]

Part Twelve of the Reports462

the same, as heretofore they have lawfully done, and as by, and according to

the Lawes of this Realm they may now lawfully do, &c. And if the King hath

covenanted to discharge the Patentee, &c. of Pensions, and then suit shall be

made for the same in the Court of Augmentations, and not elsewhere; then

if the high Commissioners will determine of Pensions, they ought to do it by

the act 34 Hen. 8. and the said act gives this expressly to Ordinaries, and their

Ofﬁcials, and the high Commissioners have their authority by the act 1 Eliz.

made a long time after.

But it was objected, that the said act 1 Eliz. gave to the Queen, her Heirs

and Successors, power to assign Commissioners to exercise and execute all

manner of Jurisdiction Spiritual, to visit, reform, &c. all Schism and Heresie,

&c. and Enormities which by any manner of Spiritual Jurisdiction can, or

lawfully may be reformed. And it was said, that such Spiritual Jurisdiction

which the Bishop should have, is transferred to the high Commissioners.

But it was unanimously resolved by Coke, Walmsley, Warburton, Daniel

and Foster Justices, that the act 1 Eliz. doth not extend to this case for divers

causes, viz.

1. For that the said clause of resignation is not more large then the clause

of Restitution; and that the act of 1 Eliz. doth not take away nor alter any act

of Parliament, unlesse those only which are expressly named in the act; and

it was resolved that the high Commissioners cannot hold plea for the double

value of Tythes carried away before severance, for two causes.

1. For this, that the Statute of 2 Edw. 6. cap. 13. gave the Cognizance of it

to Spirituall Judges, which is to be intended of such Spirituall Judges who

then were.

2. Substraction of Tythes is injury and no crime, but concerns interest and

property: And for this the high Commissioners cannot meddle with it.

2. For that the words of the act 1 Eliz. are (which by any manner of Spirituall

Jurisdiction can or lawfully may be reformed). And it appears that these words

extend to crime only, and not to cases of Interest betwixt party and party; for

the words are: All such Errors, Heresies, &c. which by any manner, &c. so

that (such) and (which) are Relatives.

2. This Jurisdiction was given to the Bishops by act of Parliament, viz. by

34 Hen. 8. which is more temporal then spiritual: And for this out of the

precedent words 1 Eliz. viz. Spiritual or Ecclesiasticall Jurisdiction, which is

to be intended of Jurisdictions meerly or purely Spiritual, | but acts of Par-

liament are more temporall then spirituall.

[47]

Sir Anthony Roper’s Case 463

4. It was not the intent of the act 1 Eliz. which revived the Statute 23 Hen.

8. cap. 9. by which act it is enacted, that none shall be sued out of his Diocesse,

&c. that the high Commissioners for private causes shall send for Subjects

out of any part of the Realm, and so in effect confound the Jurisdiction of

the Ordinary, who is an Ofﬁcer and Minister so necessary that in divers causes

the Courts of the King cannot administer to Subjects without him, &c.

5. If the act of 1 Eliz. had extended to give to high Commissioners power

to determine meum et tuum,

as Pensions, Tythes, Legacies, Matrimonies,

Divorces, Administrations, Probates of Testaments, &c. the act would also

give the party grieved beneﬁt of appeal, and not give absolute authority to

the high Commissioners ﬁnally to determine Meum et tuum, and to bastardise

Issues, &c. without any controlement, for this should be to dissolve the Court

of the Ordinary which is so ancient and inevitably necessary in many cases

to the administration of Justice, in divers points of it, that without this Justice

cannot be executed.

6. The high Commissioners cannot extend themselves but only to Crimes,

for the clause which gives to them power to imprison, &c. and to punish,

&c. and imprison such Offender, &c. And Offender is only to be intended

of him who commits any crime, and not of him who detains Pension, Legacy,

Tythes, &c.

Sir Anthony Roper’s Case.

(1607) Michaelmas Term, 5 James I.

In the Court of King’s Bench.

First Published in the Reports, volume 12, page 47.*

Ed.: A different note by Coke of the preceding Case.

Praeceptum fuit Guardiano prisonae Domini Regis de le Fleete, Quod haberet

hic; viz. apud Westmonasterium immediate post receptionem hujus brevis corpus

Antonii Roper militis in prisona praedicta sub custodia sua detenti, quocunque

nomine censeretur, una cum die et causa captionis et detentionis ejusdem Antonii:

Et iidem Justiciarii hic, visa causa illa, ulterius ﬁeri fecerint quod de jure et

2. [Ed.: mine and thine, (i.e. matters of property).]

*The original pleadings in this case may be found at 5 Jac. Rot. 2254.

Hab. Cor-

pus return,

and dis-

charge by

judgment

of the

Court.

Part Twelve of the Reports464

secundum legem et consuetudinem regni Domini Regis Angliae fuerit faciendum:

Et modo hic ad hunc diem, scilicet diem Sabbati proximum post octabis Sancti

Mich. isto eodem termino venit praedictus Antonius in propria persona sua sub

Custodia praedicti Guardiani ad barram, hic praedict. et idem Guardianus, tunc

hic mand. Quod ante adventum brevis praedicti, viz. nono die octabis ultimo

praeterito praeditus Anthonius Roper miles reducit se prisonaepraedictae praeantea

commissus virtute cujusdam warranti, dati 30 die Junii ultimo praeterit’, quod

sequitur in haec verba, viz.

These are in his Majesties name to require and charge you, by vertue of

his high Commission for causes Ecclesiasticall, under the great Seal of England,

to us and others directed, that herewith you receive and take into your Custody

the body of Sir Anthony Roper Knight, and him safely detain Prisoner at this

our commandment, untill we shall give order for his enlargement, signifying

unto you, that the cause of his commitment is, for that there being a certain

cause referred unto us by his Majesties special direction, betwixt him the said

Sir Anthony Roper and John Bulbrook Vicar of Bentley, for that he detained

wrongfully from him the said Vicar, a certain yearly Pension due unto him

from the said Sir Anthony; And being thereupon called before us, and after

full hearing of | the cause in the presence of Sir Anthony and his Councel at

three or four severall times, and at the last adjudged by us to pay the said

Pension, he having somtime of deliberation given unto him by us to consider

therof, hath notwithstanding obstinately disobeyed the said Order, and doth

so still persist: And this shall be your Warrant in that behalf; Given at Lambeth

this thirtieth of June, 1607. Et quod haec fuit Causa Captionis et detentionis,

praedicti Antonii in prisona praedicta, corpus tamen praedicti Antonii modo hic

paratus habet prout per breve praedictum sibi praeceptum fuit, &c. super quo,

1. [Ed.: The warden of the lord king’s prison of the Fleet was commanded that he have here, that is

to say, at Westminster, immediately after the receipt of this writ, the body of Anthony Roper, knight,

detained in the aforesaid prison in his custody, by whatever name he should be known, together with the

day and the cause of the taking and detention of the same Anthony, (so that) the same Justices here, having

seen the cause, shall do further whatever by right and according to the Law and custom of the lord king’s

realm of England should be done. And now here at this day, namely the Saturday next after the octaves

of Michaelmas this same term, the aforesaid Anthony comes in his own person, being (led) to the bar here

in the custody of the aforesaid warden; and the same warden then sent word here that before the arrival

of the aforesaid writ, namely on the ninth day of October last past, the aforesaid Anthony Roper, knight,

brought himself to the aforesaid prison, having been previously committed by virtue of a certain warrant

dated the thirtieth day of June last past, which follows in these words, that is to say, to wit:]

[48]

The Case of Heresy 465

visis praemissis et per Justiciarios hic plenius examinatis et intellectis, videtur iisdem

Justic. hic quod praedicta causa commissionis praedicti Antonii prisonae de Fleet

praedict, in retorno praedict: superius speciﬁcata minus sufﬁciens in lege existit

ad detinendum praedictum Antonium in prisona praedict. Ideo praedictus An-

tonius a prisona praedicta per Curiam hic dimittitur, ac idem guardianus de

hujusmodi custodia per eandem Curiam hic plene exoneretur, &c.

And this was

resolved una voce by Coke chief Justice, Walmesley, Warberton, Daniell, and

Foster Justices, for the causes and reasons afore expressed.

And in the very same Term in Lanes Case, a Parson in Norfolk who sued

one of his Parishioners before the high Commissioners, for scandaling of him,

saying in the Church on the Sabbath before all his Parishioners, That he was

a wicked man, and an arrant Knave: Prohibition lyes, for this, that it was not

so enormous as the Statute intended. Note, that by express Proviso, the high

Commissioners cannot intermeddle with all Heresies, but with exorbitant

Heresies, &c. and the other shall be determined before the Ordinary.

The Case of Heresy.

(1600–1601) 43 Elizabeth I

In Conference with Sir John Popham, Chief Justice.

First Published in the Reports, volume 12, page 56.*

Ed.: These are Coke’s notes of a conference with the Chief Justice of the

king’s Bench, on the nature of a proceeding for heresy, including the evo-

lution of their procedure, and the problems of indictments brought against

Lollards, who were not heretics in the deﬁnition by Statute.

2. [Ed.: And that this was the cause of the taking and detention of the aforesaid Anthony in the aforesaid

prison; nevertheless he now has here ready the body of the aforesaid Anthony, as he was commanded by

the aforesaid writ, etc. Whereupon, the premises having been seen and fully examined and understood by

the Justices here, it seems to the same Justices here that the aforesaid cause of the committal of the aforesaid

Anthony to the prison of the Fleet aforesaid as speciﬁed above in the aforesaid return is insufﬁcient in Law

to detain the aforesaid Anthony in the aforesaid prison. Therefore the aforesaid Anthony is dismissed from

the aforesaid prison by the court here, and the same warden fully discharged by the same court here from

such custody, etc.]

*There is a most unusual degree of variation among the editions for this report. The text of the 1656

edition is reproduced here. The 1826 report being so much fuller, it is reproduced in whole in the note

** below.

Part Twelve of the Reports466

Note, 2 Mar. title Heresie, Brook per omnes Justiciarios

& Baker & Hare:

The Arch-bishop in his Province, in the Convocation, may and doth use to

convict Heresie by the common Law, and then to put them convicted into

Ley hands, and then by the Writ, De haeretico comburendo

they were burnt:

But for this, that it was troublesome to call a Convocation of the whole Prov-

ince, it was ordained by the Statute of 2 Hen. 4. cap. 15. That every Bishop

in his Diocesse might convict Hereticks; And if the Sheriff was present, he

might deliver the party convict to be burnt, without any Writ De haeretico

comburendo: But if the Sheriff be absent, or if he be to be burnt in another

**The 1826 edition provides:

The archbishop and other bishops, and other the clergy, at a general synod or convocation might convict

a heretic by the Common Law. But for this, that it was troublesome to call a convocation of the whole

province, it was ordained by the Statute of 2 Hen. 4. cap. 15. that every bishop in his diocese might convict

heretics; and, note, 2 Mary Brook, title Heresy, per omnes justic’,

and Baker, Chancellor of the Exchequer,

and Hare, Master of the Rolls, by that Statute. And if the sheriff was present, he might deliver the party

convict to be burnt, without any writ de haeretico comburendo;

but if the sheriff be absent, or if he be to

be burned in another county, then there ought to be a writ de haeretico comburendo: and that the Common

Law was such, vide lib. intra, title Indictment, p. 11. such who there are taken for heretics, some of them,

are consonant to true religion. Vide 11 Hen. 7. Book of Entries, fol. 3. 19. See Doctor and Student, lib. 2.

cap. 29. Cosin 48. 2. See the Statute of 1 and 2 Phil. and Mar. cap. 6. That Ordinaries wanting authority

to proceed against heretics, 3 F. N. B. 8. fol. 269. And the writ in the register, which in the new book is

omitted, proves this directly, 4 Bracton lib. 3. cap. 2. folio 123, 124. Concilio Oxoniensi quidam Diaconus

convictus fuit de apostasia, sed primo degradatus fuit per Ordinarium:

and true it is, that every Ordinary

may | convent any heretic or schismatic before him, pro salute animae,

and may degrade him, as Bracton

saith, and may enjoin him penance according to the censure of ecclesiastical law; but upon such conviction

at Common Law, the party convict shall not be burnt, nor any writ de haeretico comburendo lieth upon

it; for the Common Law will not commit the decision of a heresy, for the life of a Christian man, to any

sole Judge.

The makers of the Act of 1 Eliz. were in doubt what shall be adjudged heresy; and therefore if any

person be charged with heresy before the High Commissioners, they have no authority to judge any matter

or cause to be heresy, but only such as hath been so adjudged by the authority of canonical scripture, and

by the four ﬁrst general councils, or by any other general council, wherein the same was declared heresy

by the express and plain words of canonical scripture, or such as shall hereafter be determined to be

heresy by Parliament, with the assent of the convocation; for so it is expressly provided by the said Act

of 1 Eliz. And although this Proviso extends only to the High Commissioners; yet seeing in the High

1. [Ed.: according to all the judges]

2. [Ed.: for burning a heretic;]

3. [Ed.: In the council of Oxford a certain deacon was convicted of apostasy, but ﬁrst he was degraded

[from his orders] by the ordinary:]

4. [Ed.: for the salvation of his soul,]

Heresie

upon con-

ference

with Sir

John Po-

pham and

others, An.

43. Eliz.

[57]

The Case of Heresy 467

County, then there ought to be a Writ De haeretico comburendo; And that the

Common Law was such, vide lib. intra. title Indictment, pl. 11. who there are

taken for Hereticks, some of them are consonant to true Religion, vide 11

Hen. 7. Book of Entries, fol. 319. see Dr. & St lib. 2. cap. 29. Cosin. 48. 2.

Commission there be so many bishops, and other divines and learned men, it may serve for a good direction

to others, especially to the diocesan, being a sole Judge in so weighty a cause.

At this day the diocesan hath jurisdiction of heresy, and so it hath been put in ure in all Queen Elizabeth’s

reign: but without the aid of the Act of 2 Hen. 4. cap. 15. the diocesan could imprison no person accused

of heresy, but was to proceed against him by the censures of the church; for the bishop of every diocese

might convict any for heresy before the Statute 2 Hen. 4. as appears by the preamble of it, but could not

imprison, &c.; and now seeing that not only the said Act of 2 Hen. 4. but 25 Hen. 8. cap. 14. are repealed,

the diocesan cannot imprison any man accused of heresy, but must proceed against them as he might have

done before those Statutes by the censures of the church; as it appears by the said Act of 2 Hen. 4. cap.

15. Likewise the supposed Statute of 5 Rich. 2. cap. 5. and the Statutes of 2 Hen. 5. cap. 7. 25 Hen. 8. cap.

14. 1 and 2 Phil. and Mar. cap. 6. are all repealed so as no Statute made against heretics stands now in

force; and at this day no person can be indicated or impeached for heresy before any Temporal Judge or

other that hath temporal jurisdiction, as upon perusal of the said Statute appeareth.

There was a Statute supposed to be made in 5 Rich. 2. that commissions should be by the Lord Chancellor

made and directed to sheriffs, and others, to arrest such as should be certiﬁed into the Chancery by the

bishops and prelates, masters of divinity, to be preachers of heresies and notorious errors, their factors,

maintainers, and abettors, and to hold them in strong prison, until they will justify themselves to the Law

of the Holy Church. By colour of the supposed Act certain persons that held that images were not to be

worshipped, &c. were holden in strong prison, until they (to redeem their vexation) miserably yielded

before these masters of divinity to take an oath, and did swear to worship images, which was against the

moral and eternal Law of Almighty God. We have said by colour of the said supposed Statute, &c. not

only in respect of the said opinion, but in respect also, that the said supposed Act was in truth never any

Act of Parliament, thought it was entered in the Rolls of the Parliament, for that the Commons never

gave their consent thereunto. And therefore in the next Parliament, (though it was entered in the Rolls

of the Parliament) for that the Commons never gave their consent thereunto, therefore in the next Par-

liament, the Commons preferred a bill, reciting the said supposed Act, and constantly afﬁrmed, that they

never assented thereunto, and therefore desired that the said supposed Statute might be aniented and

declared to be void; for they protested, that it was never their intent to be justiﬁed by, and to bind themselves

and successors | to the prelates, more than their ancestors had done in times past; and hereunto the King

gave his Royal assent in these words, Pleist au Roy.

And mark well the manner of the penning of the Act;

for seeing the Commons did not assent thereunto, the words of the Act be, “it is ordained and assented

in this present Parliament, that, &c.” And so it was, being but by the King and the Lords. [Or rather, by

the craft of the bishops and the then chancellor.]

It is to be known that of ancient time, when any Acts of Parliament were made to the end the same

might be published and understood, and especially before the use of printing came into England, (after

the Parliament was ended) the Acts of Parliament were ingrossed into parchment and bundled up together

with a writ in the King’s name, under the Great Seal, to the sheriff of every county, sometimes in Latin,

5. [Ed.: At the pleasure of the king.]

[58]

Part Twelve of the Reports468

see the Statute of 1 & 2. P.M. cap. 6. That Ordinaries wanting authority to

proceed against Hereticks, 3. F. N. B. fol. 269. And the Writ in the Register,

which in the new Writ is omitted proves this directly, 4. Bracton, lib. 3. cap.

9. fol. 123, 124. Concilio Oxoniensi quidam Diaconus convictus fuit de Apostasia,

sed primo degradatus fuit per Ordinarium:

And true it is, that every Ordinary

may convent any Heretick or Schismatick before him, Pro salute animae,

and

may degrade him, as Bracton saith, and may injoyn him penance according

to the censure of Ecclesiasticall Law: But upon such conviction at Common

Law, the party convict shall not be burnt, nor any Writ De haeretico com-

and sometimes in French, to command the sheriff to proclaim the said Statutes within his bailiwick, as

well within liberties as without. And this was the course of Parliamentary proceedings, before printing

came in use in England, and it continued after we had the print till the reign of Hen. 7.

Note, at the Parliament holden in 5 Rich. 2. John Braibrooke, Bishop of London, being Lord Chancellor

of England, caused the said ordinance of the King and Lords to be inserted into the Parliamentary writ

of proclamation to be proclaimed amongst the Acts of Parliament, which writ I have seen, the purclose of

which writ, after the recital of the Acts directed to the Sheriff of N., is in these words, Nos volentes dictas

concordias, sive ordinationes in omnibus et singulis suis articulis inviolabiliter observari, tibi praecipimus quod

praedictas concordias sive ordinationes in locis infra balivam tuam, ubi melius expedire volueris, tam infra

libertates, quam extra, publice proclamari et teneri facias juxta formam praenotatam. Teste Rege apud Westm.

26 Maii, anno regni Regis, R. 2. 5.

But in the Parliamentary proclamation of the Acts passed in anno 6 Rich. 2. the said Act of 6 Rich.

2. whereby the said supposed Act of 5 Rich. 2. was declared to be void, is omitted; and afterwards the said

supposed Act of 5 Rich. 2. was continually printed, and the said Act of 6 Rich. 2 hath by the craft of the

prelates been ever from time to time kept from the print.

Certain men called Lollards were indicated for heresy upon the Statute 2 Hen. 4. for these opinions,

viz. Quod non est meritorium ad Sanctum Thomam nec ad Sanctam Mariam de Walsingham peregrinari. 2.

Nec imagines cruciﬁx et aliorum sanctorum adorare. 3. Nulli sacerdoti conﬁteri nisi soli Deo, &c.

Which

opinions were so far from heresy, as the makers of the Statute of 1 Eliz. had great cause to limit what heresy

was.

6. [Ed.: We, wishing the said accords or ordinances to be inviolably observed in all and singular their

points, command you that you publicly proclaim the aforesaid accords and ordinances in those places

within your bailiwick where you think ﬁt, both within liberties and without, and cause them to be kept

according to the aforementioned form. Witness the king at Westminster on the twenty-sixth day of May

in the ﬁfth year the reign of King Richard II.]

7. [Ed.: [1] that it is not meritorious to make pilgrimages to St. Thomas or to St. Mary of Walsingham;

(2) nor to adore images of the cruciﬁx and of other saints; (3) no priests to be allowed except by God alone,

etc.]

3. [Ed.: At a council at Oxford a certain deacon was convicted of heresy, but ﬁrst he was degraded by

the Ordinary:]

4. [Ed.: For the salvation of his soul,]

The Case of Heresy 469

burendo lyeth upon it; for the Common Law will not commit the Disseison

of a Heresie, for the life of a Christian man, to any sole Judge.

Nota, The makers of the act of 1 Eliz. were in doubt what shall be deemed

Heresie, Schism, or Schismaticall Opinion: And for this on purpuse the Statute

10 Eliz. provides that nothing shall be deemed Heresie by any of the Com-

missioners, by vertue of the high Commission, but what had been determined

for Heresie by one of the four generall Councils, or expresly by the word of

God, or Parliament, and will not leave it to so many of the Bishops and high

Divines who are Commissioners, to determine what was Heresie: without

question it cannot be thought reasonable that this shall be left without any

limitation to one only Bishop, but to a generall Convocation; for Plus vident

oculi quam oculus,

see Fox in Ed. 6. Tyne the Ordinary convicted none but

by commission, and it appears by Bracton, vide supra, & Britton, who writ

in 5 Edw. 1. lib. 1. cap. 17. That an Heretick shall be burnt for Heresie, but

he doth not speak of the manner of conviction: See Horne in Myrrour of

Justice; And true it is, that is appears by the preamble of the Statute, 2 Hen.

4. that the Ordinary hath Cognizance of Heresie: And this is true, as it hath

been said, Pro salute animae; but not to burn the Heretick before that Statute:

And with this agrees the Statute, 2 Hen. 5. cap. 7. 23 Hen. 7. 9. 25 Hen. 8.

cap. 14. which recites the mischief, and the said act 2 Hen. 4. introduceth,

scil. That a man incurs the losse of his life, good fame, or goods, upon naked

suspition without due examination and testimony, or presentment, viz. Con-

fession, &c. Also that the words in the said Act, viz. Cannonical Functions,

were to generall and incertain; Also that it was not deﬁned by the said act

what was Heresie, the said Act repeals the act, 2 Hen. 4. & 2 Hen. 5. and the

same act 25 Hen. 8. gives power to the Ordinary to proceed in other form

and manner then the Statute 2 Hen. 4. hath provided, viz. That the Ordinary

shall only proceed upon presentment or indictment of Heresies, or upon an

accusation of two lawfull witnesses, and not otherwise. Also the Ordinary

cannot burn the Heretick without the Kings Writ De haeretico comburendo,

so that the proceeding in that Commencement and end was altered by the

Statute 25 Hen. 8. and where this Statute sayes, Ordinaries having power to

examine Heresies, this restrains it to Ordinaries themselves and not to Suf-

fragans, Commissaries, &c. Then came the Statute of 1 Edw. 6. cap. 12. and

5. [Ed.: Two eyes can see better than one,]

Part Twelve of the Reports470

that repealed, 5 Ric. 2. 2 Hen. 5. & 25 Hen. 8. but not the 2 Hen. 4. by expresse

words, but by generall words, viz. All Statutes concerning matter of Religion:

then came the Statute 1, & 2. P & M. cap. 6. and revived the Statute 2 Hen.

4. amongst others, by the reviver of which, without more, the Statute of 25

Hen. 8. loseth its force, so that the Ordinary may proceed upon bare suspition,

and burn in any case without the Kings Writ: But by the act 1, & 2. P. & M

cap. 8. after divers acts expresly repealed, Scil. 21 Hen. 8. 23 Hen. 8. 24 Hen

8. 27. Hen. 8. but the act of the 25 Hen. 8. cap. 14. was not expresly repealed,

for this was repealed before by the act 1 Edw. 6. and yet in the end of that

long and prolix Act, there is a generall clause which is sufﬁcient of it self to

repeal the Act of 25 Hen. 8. cap. 14. without more, Scil. the Ecclesiasticall

Jurisdiction of the Arch-bishop and Ordinary to be in the same Estate, for

processe of Suits, punishment of crimes, and execution of Church censures,

with knowledge of Causes belonging to the same; and as large in these points

as the said Jurisdiction was the twentieth year of the Raign of Hen. 8. by which

Clause without question the Act of the 25. of Hen. 8. cap. 14. was repealed;

then came the Statute of 1 Eliz. cap. 1. and by this the said Act of the 1, &

2. Phil. & Mar. is repealed, except such branches as after in the Act is excepted:

And after divers acts particularly are repealed by the Act 1, & 2. Phil. & Mar.

and are revived by 1 Eliz: particularly: And after in the same act of 1 Eliz. it

is enacted, that all other Statutes repealed by the said act of Repeal of 1, &

2. Phil. & Mar. and not in this act specially revived shall remain repealed:

But the act 25 Hen. 8. cap. 14. was not particularly revived, and therefore is

repealed; And after it is enacted by the Statute of 1 Eliz. that the said act 1,

& 2. Phil. & Mar. of reviving of three Acts for punishment of Heresies, and

the said three Acts themselves shall be repealed, so that now at the Common

Law none can be burnt for Heresie, but by conviction at a Convocation, for

the Statute of 2 Hen. 4. cap. 15. and 25 Hen. 8. 14. are now repealed, and no

regard was had to the said Doctor Cosins, in his Apology pag. 48. That he

heard the two chief Justices, &c. for he doth not touch any time, or persons,

&c. And it may very well be that they said, That cognizance of Heresie belongs

to Ordinaries Quatenus

to penance, but not Quatenus to losse of life.

Note also, that by the said Writ in the Register, it appears that Hereticks

6. [Ed.: [Who are only] commanded.]

Langdale’s Case 471

convict ought ﬁrst to abjure, so that it may be said Omnes infra ovile,

and

after relapsed into the same Heresie, there he shall suffer death: And with this

accords Fitzh. but quaere de hoc.

Note, divers were convicted in the time of Queen Eliz. upon the Statute

of 2. Hen. 4. for the order and form of 25 Hen. 8. was not observed, both

which acts are repealed; So William Newburgess. lib 2. cap. 13. de haeretico

comburendo in France.

Note, the High Commission may punish Heresies, and upon their con-

viction a Writ De haeretico comburendo. See the Act 6. Ric. 2. by which the

Commons disavowed their assent to the act of 5 Ric. 2. That Hereticks shall

be imprisoned, &c. upon the Certiﬁcate of the Bishops, &c. and there the

Commons declared, that it was not their intent to be justiﬁed, nor bound

themselves, nor their Successors to Prelates, more then their Ancestors had

done in time past.

Note well, the act 5 Ric. 2. was contrived by the Prelates in the name of

the Commons, wheras they never assented: And this private act of 6 Ric. 2.

not Printed, nor was it after divers Parliaments, as it may appear before.

Langdale’s Case.

Prohibition.

(1608) Michaelmas Term, 6 James I.

In the Court of Common Pleas.

First Published in the Reports, volume 12, page 58.

Ed.: This is one of several notes in this part of the Reports discussing the

travails of Marmaduke Langdale, whose ex-wife, Joan, sued him before the

High Commission for failing to pay alimony. He sought a prohibition from

Common Pleas even though he had no suit then pending before it. The

court awarded the prohibition anyway. These notes detail the forms and

rationale for prohibitions to the ecclesiastical court.

7. [Ed.: All within the fold,]

8. [Ed.: investigate the matter.]

Part Twelve of the Reports472

In the case of Langdale in this very Term, in a Prohibition to the high

Commissioners, two points were moved; The one, if a Feme-covert

may sue

for Alimony before the high Commissioners. The other, if the Court of Com-

mon Pleas may grant a Prohibition, when no Plea is pendent in the Common

Pleas: As in this case no Plea can there depend betwixt Husband and Wife.

And forasmuch as this concerns the Jurisdiction of the Court, this was ﬁrst

of all debated, divers objections were made against it.

1. That this Court hath not Jurisdiction to hold Plea without an Original,

unlesse it be by priviledge of an Attorney, Ofﬁcer, or Clerk of the Court,

unlesse that it be in an especiall case, viz. when there is an action | there

depending for the same cause; then it was agreed that a Prohibition shall be

awarded out of the Common Pleas, in respect that the Court hath an action

there depending for the same cause, and so being possessed of the cause, it

gave the Court Jurisdiction to award Prohibition out of the same Court: And

for that the Prohibition ought to recite, Quod cum tale placitum pendet, &c.

and the Defendant Pendente placito praedicto,

hath pursued in Court Chris-

tian: And with this accords, as hath been said, F. N. B. 43 g. where it is said,

that if a man be sued in the Common Pleas for a Trespasse, if the Plaintiff

also sue in Court Christian for the same cause, the Defendant may shew this

in the Common Pleas, and shall have a Prohibition then directed to the Judges:

And so alwaies when the matter is pendent in the Common Pleas, if suit be

for the same cause in Court Christian, he shall have a Prohibition: But a man

shall have a Prohibition out of the Chancery, or Kings Bench upon his surmise,

surmising that he is sued in Court Christian for a temporall cause; And 2

Edw. 4. 11. 6. was cited, where it is held that Ne admittas,

which is a Pro-

hibition, doth not lye unlesse that the Quare impedit

be pendent.

And it was answered and resolved by Coke chief Justice, Warburton, Daniel,

and Foster, Justices, that the Common Pleas may award a Prohibition, al-

though that no Suit be there pendent, for this, that the Common Pleas is the

principall Court of Common Law for Common Pleas: For it belongs to the

Jurisdiction of the Common Pleas to determine all Common Pleas.

1. [Ed.: Married woman.]

2. [Ed.: But when such plea is pending, etc.]

3. [Ed.: While the aforesaid plea was depending,]

4. [Ed.: Writ to prohibit a bishop from admitting a clerk to contested beneﬁce or other ofﬁce.]

5. [Ed.: Writ to recover a presentment, or right to appoint a clerk to beneﬁce or advowson.]

Prohibi-

tion.

[59]

Langdale’s Case 473

Quia communia placita non sequantur Curiam nostram,

as it is enacted by

Magna Charta, which hath thirty times been conﬁrmed by other acts of Par-

liament: Then if the Ecclesiasticall Judges incroach upon the Jurisdiction of

the Common Pleas to hold Plea of any thing against the Common Law of

the Land, or of any thing triable by the Law, there the Principle Court of

Common Law shall grant a Prohibition, and that without Originall Writ, for

divers causes.

1. For that no Originall Writ which issues out of Chancery is retornable or

into the Kings Bench or Common Pleas, but is directed to Judge, or party,

or both, and is not retornable: But it appears in the Register, that if the Pro-

hibition be contemned, then the Chancellor may award an Attachment to

punish this contempt, retornable or in the Common Pleas, or in the Kings

Bench: But an Attachment in such case is but as a Judiciall Writ; And this

appears by the Register, fol. 33. And if the Attachment in such case be retornable

into the Common Pleas, &c. the Plaintiff in the Declaration shall make men-

tion of an Originall Writ in the Chancery, and of the contempt, &c. as appears

in a notable President.

2. There was great reason that no Originall Writ of Prohibition shall be

returnable, for the Common Law was a Prohibition in it self, and he who did

incroach upon the Jurisdiction of it incurred a contempt: And with this agrees

our Books, as 9 Hen. 6. 56. in Attachment upon a Prohibition in the Common

Pleas, William Babington then chief Justice of the Bench, concerning a Suit

in Court Christian of tythes of grosse Trees: And there Fulthorp the Serjeant

took exception to the Count, for this, that the Plaintiff in his Count did not

declare upon any Statute nor that any Prohibition, Scil. Original Writ was

directed unto him: And there it is held that the Statute of 45 Edw. 3. and the

Common Law also was a Prohibition in it self: And thus the rule of the Book,

19 Hen. 6. 54. Prohibition, for this, that one had sued in a Court Baron against

the Common Law; And there Ascue said, the Statute is a Prohibition in it

self, so it is held | in 8 Ric. 2. title Attachment sur Prohibition, 15. Note, by

Clopton in the Common Pleas, who then was a Serjeant, that if a Plea be

held in Court Christian, which belongs to the Court of the King, without

any Prohibition in facto, the Plaintiff shall have an Attachment upon a Pro-

hibition, for this, that the Law is a Prohibition in it self, for by the Law they

6. [Ed.: Common pleas shall not follow our court,]

[60]

Part Twelve of the Reports474

ought to hold no Plea, but that which doth belong to their Jurisdiction, Quod

fuit concessum, &c.

F. N. B. 259. Regist. 112. Supersedeas

to a Court Baron, for holding plea Vi

et armis, or above forty shillings: And F. N. B. a Writ of Consultation is as

much an originall as a Prohibition, yet the Common Pleas hath granted inﬁnite

Consultations, ergo

Prohibitions, Qui habet jurisdictionem absolvendi, habet

jurisdictionem ligandi:

And one Writ is as Originall as the other.

Note, there are many severall Writs of expresse Prohibitions, Scil. Prohi-

bitions with this word Prohibemus vobis,

and Letters in nature of Prohibitions,

as Supersedeas, by which it is commanded, Quod supersed in placito praedicto:

And Injunction is a Prohibition, and also in its nature, for the words are an

Injunction to the party, not to the Judge; And a Supersedeas is to an Ofﬁcer

or Judge, not to the party.

Prohibition of wast returnable out of Chancery, Quia retornabile.

Express

prohibitions are in two manners, the one founded upon a Suggestion, the

other upon Record; upon suggestion where plea is pendent, and yet the sug-

gestion is the foundation, for it is not so without a plea pendent, but is founded

upon Record when no plea is pendent, as shall be said hereafter: For Pro-

hibitions founded upon Record, Ne admittas, &c. ought to re-cite the plea

pendent, for all those which are founded upon Record ought to recite a plea

pendent. So a Writ to the Bishop to admit a Clark, is a Judiciall Latitat,

Dyer defends it: And as to the Book of 2 Edw. 4. it is well agreed, that this

doth not lye in the Common Pleas, unlesse a Quare impedit be depending,

for this ought to recite a Writ to be depending, and it should be against reason

to restrain any to present, or to make Wast by Estrepment,

unlesse that a

Writ be pendent: And as to the opinion of Fitzherbert, it was afﬁrmed for

good Law, for every one agrees it, that if a plea be pendent in the Common

7. [Ed.: Which was granted, etc.]

8. [Ed.: We command that you inhibit, etc.]

9. [Ed.: Writ staying the proceedings of an inferior court.]

10. [Ed.: therefore.]

11. [Ed.: He who has jurisdiction to absolve, has jurisdiction to bind:]

12. [Ed.: We prohibit you.]

13. [Ed.: That you surcease in the aforesaid plea.]

14. [Ed.: Because it is returnable.]

15. [Ed.: Writ of general summons, not restricted to service in one place.]

16. [Ed.: Spoil or waste by a life Tenant to the determine of the reversioner or remainderman.]

Langdale’s Case 475

Pleas, then a Prohibition there lies, and the pendency or not pendency of a

plea is not materiall for divers causes.

1. The pendency of a Plea may give a priviledge to the party, but no Ju-

risdiction to the Court in collaterall Suit: And there is a diversity betwixt

Priviledge of Court, and Jurisdiction of Court, for a Plea pendent may give

priviledge to the party, Eundo, redeundo & morando,

but doth not give Ju-

risdiction to the Court to hold plea by Bill by collaterall Suit against any other,

as an Ofﬁcer, Attorney or Clerk may.

2. The Prohibition in such a case where plea is pendent is no processe

Judiciall upon the Record, for it is a collaterall Suit.

3. If the Common Pleas, which is the proper Court for Common Pleas,

cannot grant a Prohibition without a Plea pendent; certainly the Kings Bench,

which holds plea of Common Pleas by secondary means, cannot do it: And

so the Archbishop of Canterbury in his Articles concerning Prohibitions holds,

that neither the one Court nor the other may grant Prohibitions in such a

case: But inasmuch as the Common Law is in stead of an Originall, as hath

been said, both Courts may grant it.

4. Inﬁnite Presidents may be shewn of Prohibitions out of the Common

Pleas, without recitall of any plea pendent, as is agreed on the other part: And

true it is, that it ought to be, if the Court hath not Jurisdiction | to grant any

without plea pendent. Every petty Clerk of the Common Law shall have by

his priviledge a Prohibition without plea pendent; a fortiori,

the Common

Law it self may prohibite any one, who against the Common Law shall incroach

upon its Jurisdiction, and enquire of things done against the Jurisdiction of

the Court. Plea pendent is cause of priviledge and not of Jurisdiction, 4 Edw.

4. 37. 37 Hen. 8. 4. Action or information upon the Statute of 2 Hen. 5. cap.

5. is but an information to the Court of wrong done to the Common Law,

for this, that no Originall Writ lies, as upon penall Law, upon Malum pro-

hibitum, this is Malum in se de quo Curia intelligi & informari voluit.

5. A President is in 22 Edw. 4. where a prohibition was granted out of the

Common Pleas, for that the Plaintiff might have a Writ of false Judgment at

17. [Ed.: literally, “In going, remaining or returning,” a privilege from arrest for debt.]

18. [Ed.: so much the more so,]

19. [Ed.: a wrong as a result of prohibition . . . a wrong in itself, whereof the court wishes to be told

and informed.]

[61]

Part Twelve of the Reports476

the Common Law: The Record it self agrees with the Report, for the words

of the Record are,

6. That Ofﬁcers and Clerks, as well in the Common Pleas, as in the Ex-

chequer, and Farmers of the King in the Exchequer, may have by priviledge

of Court a Prohibition without Originall: a fortiori, the Law it self shall have

greater priviledge then an Ofﬁcer or Clerk, and certainly to enforce the party

to bring an action will be a means to multiply Suits to no end, for the Law

it self in 4 Edw. 4. fol. 37. if any man upon the Statute of 2 Hen. 5. for not

delivering of a Libell, be brought into the Common Pleas: And if he cannot

have a Prohibition without such Suit, this shall be a cause, as hath been said,

to multiply Suits, and is against the publick Weal; For he will bring his action

upon the Statute before that he will be deprived of his Prohibition, and by

that he gives himself cause of Prohibition; every Prohibition is as well at the

Suit of the King as of the party, as is held in 28 Edw. 3. 97. false Latine shall

not abate, nor excommunication in the plaint is no plea: For this is the Suit

of the King, as well for his Jurisdiction as for the party, who by Law may

choose his Court, 15 Edw. 3. title Corrody 4. The King may sue for this con-

tempt where he pleaseth.

Note, that although the Originall cause was in the Kings Bench for Corrody,

Excommunication is no plea in disability of the Plaintiff, because it is the Suit

of the King for contempt to his Law. vide 21 Hen. 7. 71. Kelway 6. in quare

non admisit,

4 Edw. 4. 37. for not delivery of a Libell in the Common Pleas,

and then he shall have a Prohibition by all the Justices: so upon the Statute

of 2 Edw. 6. c. 13. for suing for Tythes where there is a prescription, &c. And

this shall be to introduce multiplication of Suits, when himself gives cause of

Prohibition, 38 Hen. 6. 14. 22 Edw. 4. 20. 13 Edw. 3. title Prohibition, 11. after

a Judgment in the Common Pleas, after which the Patron sues the Recoverer

in Chancery, surmising equity, Attachment upon a Prohibition out of the

Common Pleas, yet no Plea pendent.

Note, the Reporter reported this Attachment to issue out of the Common

Pleas, for the Chancellor would not prohibite him.

32 Hen. 6. 34. An Attorney in the Palace assaulted and menaced, the Court

shall take a Bill and enquire of it, 4 Edw. 4. 36, 37. there a Prohibition without

view of Libell, for this, that action was pendent, Statham Prohibition 3.

20. [Ed.: why he did not admit (apparently a heading in Kelway).]

Mouse’s Case 477

Prohibition super Articulos,

title Prohibition plea 5. gives a Prohibition

before, scil. Coram Justiciariis nostris apud West.

vide F. N. B. fol. 69 b. in a

Writ of Pone, Register indic. coram Justiciariis nostris apud West.

is the Com-

mon Pleas, F. N. B. 64 d. 38 Edw. 3. 14. Statute 2 Edw. 6. cap. 13. such Courts

grant Prohibitions who have used to grant them: Hales Case in | my Reports.

Note the reason that many Prohibitions were granted in the Kings Bench, for

that no Writ of Error lies but in Plaint.

Mouse’s Case.

(1608) Michaelmas Term, 6 James I.

First Published in the Reports, volume 12, page 63.

Ed.: A note Case. A ferryman was carrying forty-seven people, including

a fellow named Mouse, when a storm blew up and threatened the barge.

A fellow passenger threw over all of the cargo to save the barge, including

Mouse’s casket, with £113 inside. Mouse sued but lost. In Cases of necessity,

anyone may act to save lives and there is no liability to them, although

there may be liability against the ferryman.

In an action of Trespasse brought by Mouse, for a Casket, and a hundred

& thirteen pounds, taken and carried away; the Case was, the Ferry-man of

Gravesend took forty seven Passengers into his Barge, to passe to London,

and Mouse was one of them, and the Barge being upon the water, a great

Tempest hapned, and a strong wind, so that the Barge and all the passengers

were in danger to be drowned, if a Hogshead of Wine and other ponderous

things were not cast out, for the safeguard of the lives of the men: It was

resolved per totam Curiam,

that in case of necessity, for the saving of the lives

of the passengers, it was lawfull to the Defendant being a passenger to cast

the Casket of the Plaintiff out of the Barge, with the other things in it, for

Quod quis ob tutelam corporis sui fecerit, jure id fecisse videtur,

to which the

21. [Ed.: Prohibition upon the articles.]

22. [Ed.: that is to say, before our Justices at Westminster.]

23. [Ed.: Put on the register before our Justices at Westminster.]

1. [Ed.: by the whole court,]

2. [Ed.: Whatever someone does to protect his body, is deemed to be done rightfully,]

[62]

Part Twelve of the Reports478

Defendant pleads all this speciall matter; and the Plaintiff replies, De injuria

sua propria absque tali causa:

And the ﬁrst day of this Term, this Issue was

tried, and it was proved directly, that if the things had not been cast out of

the Barge, the passengers had been drowned: And that Levandi causa,

they

were ejected; some by one passenger and some by another; And upon this the

Plaintiff was non-suit.

It was also resolved, that although the Ferry-man sur-charge the Barge, yet

for safety of the lives of Passengers in such a time and accident of necessity,

it is lawfull for any passenger to cast the things out of the Barge: And the

Owners shall have their remedy upon the sur-charge against the Ferry-man,

for the fault was in him upon the sur-charge; but if no sur-charge was, but

the danger accrued only by the act of God, as by Tempest, no default being

in the Ferry-man, every one ought to bear his losse for the safeguard of the

life of a man, for Interest Reipublicae quod homines conserventur,

8 Edw. 4. 23,

&c. 12 Hen. 8. 15. 28 Hen. 8. Dyer 36. plucking down of a house in time of

ﬁre, &c. And this Pro bono publico, & conservatio vitae hominis est bonum

publicum.

So if a Tempest arise in the Sea, Levandi navis causa,

and for

salvation of the lives of men, it may be lawfull for Passengers to cast over the

Merchandizes, &c.

Prohibitions del Roy.

(1607) Michaelmas Term, 5 James I.

In Conference Before the King.

First Published in the Reports, volume 12, page 63.

Ed.: These are Coke’s notes of a conference in which he and his fellow

Judges informed the King that he does not have the privilege to personally

decide a Case at Law. The Law requires an artiﬁcial logic, in which he is

not skilled. The Law, also, protects the King. These were not the answers

the King was expecting; James was a strong proponent of the divine right

of monarchy and saw little merit to being beholden to the Law. Other

3. [Ed.: Of his own wrong without such cause:]

4. [Ed.: In order to lighten the load,]

5. [Ed.: It is in the interest of the common weal that men should be saved.]

6. [Ed.: For the public good; and the preservation of a man’s life is a public good.]

7. [Ed.: In order to lighten the ship,]

Prohibitions del Roy 479

reports of this conference do not depict Coke in as cool a light. Even so,

this report was widely circulated after its publication. This opinion reﬂects

remarks in Bracton and Fleta, earlier Law Books, but no one had been quite

so bold in presenting the ideas to a monarch. As a cornerstone of modern

notions of the rule of Law and an independent judiciary, the report is one

of the most important Law opinions in the history of the Common Law.

Note, upon Sunday the 10th of November, in this same Term, the King,

upon complaint made to him by Bancroft, the Archbishop of Canterbury,

concerning Prohibitions, the King was informed, that when the question was

made of what matters the Ecclesiastical Judges have Cognizance, either upon

the exposition of the Statutes concerning tithes, or any other thing Ecclesi-

astical, or upon the Statute 1 Eliz. concerning the high Commission, or in

any other case in which there is not express authority in Law, the King himself

may decide it in his Royall person; and that the Judges are but the delegates

of the King, and that the King may take what Causes he shall please to de-

termine, from the determination of the Judges, and may determine them

himself. And the Archbishop said, that this was clear in Divinity, that such

Authority belongs to the King by the Word of God in the Scripture. To which

it was answered by me, in the presence, and with the clear consent of all the

Judges of England, and Barons of the Exchequer, that the King in his own

person | cannot adjudge any case, either criminall, as Treason, Felony, &c. or

betwixt party and party, concerning his Inheritance, Chattels, or Goods, &c.

but this ought to be determined and adjudged in some Court of Justice, ac-

cording to the Law and Custom of England, and always Judgments are given,

Ideo consideratum est per Curiam,

so that the Court gives the Judgment: And

the King hath his Court, viz. in the upper house of Parliament, in which he

with his Lords is the supream Judge over all other Judges; for if Error be in

the Common Pleas, that may be reversed in the King’s Bench: And if the

Court of King’s Bench err, that may be reversed in the upper house of Par-

liament, by the King, with the assent of the Lords Spirituall and Temporall,

without the Commons: And in this respect the King is called the chief Justice,

20 Hen. 7. 7 a. by Brudnell:

And it appears in our Books, that the King may

1. [Ed.: Therefore it is decided by the court,]

2. 2 Ric. 3. 9. 21 Hen. 7. 8.

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Part Twelve of the Reports480

sit in the Star Chamber, but this was to consult with the Justices, upon certain

questions proposed to them, and not in Judicio;

so in the King’s Bench he

may sit, but the Court gives the Judgment: And it is commonly said in our

Books, that the King is alwaies present in Court in the Judgment of Law; and

upon this he cannot be non-suit: But the Judgments are always given Per

Curiam;

and the Judges are sworn to execute Justice according to Law and

Custom of England. And it appears by the Acts of Parliament of 2 Edw. 3.

cap. 9. 2 Edw. 3. cap. 1. That neither by the great Seal, nor by the little Seal,

Justice shall be delayed; ergo, the King cannot take any cause out of any of

his Courts, and give Judgment upon it himself,

but in his own cause he may

stay it, as it doth appear, 11 Hen. 4. 8. And the Judges informed the King,

that no King after the conquest assumed to himself to give any Judgment in

any cause whatsoever, which concerned the administration of Justice within

this Realm, but these were solely determined in the Courts of Justice: And

the King cannot arrest any man, as the Book is in 1 Hen. 7. 4. for the party

cannot have remedy against the King; so if the King give any Judgment, what

remedy can the party have, vide 39 Ed. 3. 14. One who had a Judgment

reversed before the Councill of State; it was held utterly void for that it was

not a place where Judgment may be reversed, vide 1 Hen. 7. 4. Hussey chief

Justice, who was Attorney to Edward the fourth reports that Sir John Mark-

ham, chief Justice, said to King Edward the fourth that the King cannot arrest

a man for suspicion of Treason or Felony, as others of his Lieges may; for that

if it be a wrong to the party grieved, he can have no remedy: and it was greatly

marvelled that the Arch-bishop durst inform the King, that such absolute

power and authority, as is aforesaid, belonged to the King by the word of

God, vide 4 Hen. 4. cap. 22. which being translated into Latin, the effect is,

Judicia in Curia Regis reddita non annihilentur, sed stet judicium in suo robore

quousque per judicium Curiae Regis tanquam erroneum, &c. vide West. 2. cap.

5. vide le Stat. de Marlbridge, cap. 1. Provisum est, concordatum et concessum,

quod tam majores quam minores justitiam habeant et recipiant in Curia Domini

Regis, et vide le Stat. de Magna Charta,

cap. 29. 25 Ed. 3. cap. 5. None may

3. [Ed.: in the way of judgment.]

4. [Ed.: By the court.]

5. 17 Hen. 6. 14. 39 Edw. 3. 14.

6. [Ed.: Judgments given in the king’s courts shall not be annulled (elsewhere), but a judgment shall

stand in its force until (it is annulled) by judgment of the king’s court as erroneous, etc. See Westminster

The Lord Aburgaveney’s Case 481

be taken by petition or suggestion made to our Lord the King or his Council,

unless by Judgment: And 43 Ed. 3. cap. 3. no man shall be put to answer

without presentment before the Justices, matter of Record, or by due process,

or by writ Originall, according to the ancient Law of the Land: And if any

thing be done against it, it shall be void in Law and held for Error, vide 28

Ed. 3. c. 3. 37 Ed. 3. cap. 18, vide 17 Ric. 2. ex rotulis Parliamenti in Turri, act.

10.

A controversy of Land between parties was heard by the King, and sentence

given, which was repealed for this, that it did belong to the Common Law:

Then the King said, that he thought the | Law was founded upon reason, and

that he and others had reason, as well as the Judges: To which it was answered

by me, that true it was, that God had endowed his Majesty with excellent

Science, and great endowments of nature; but his Majesty was not learned in

the Lawes of his Realm of England, and causes which concern the life, or

inheritance, or goods, or fortunes of his Subjects; they are not to be decided

by naturall reason but by the artiﬁciall reason and judgment of Law, which

Law is an act which requires long study and experience, before that a man

can attain to the cognizance of it; And that the Law was the Golden met-

wand and measure to try the Causes of the Subjects; and which protected his

Majesty in safety and peace: With which the King was greatly offended, and

said, that then he should be under the Law, which was Treason to afﬁrm, as

he said; To which I said, that Bracton saith, Quod Rex non debet esse sub homine,

sed sub Deo et Lege.

The Lord Aburgaveney’s Case.

In the Parliament.

First Published in the Reports, volume 12, page 70.

Ed.: This is a note of a judicial conference which resolved a question referred

to it by members of the House of Lords, whether a man is made a baron

II, ch. 5. See the Statute of Marlborough, ch. 1: It is provided and agreed, and granted, that both great

and small should have and receive Justice in the king’s court. And see the Statute of Magna Carta.]

7. [Ed.: out of the rolls of parliament in the Tower.]

8. [Ed.: The king ought not to be under any man, but under God and the Law.]

*[Note (in 1703 edition), Bracton and Fleta both afﬁrm, Rex libert superiore in regno Deum et legem.

Item curiam suam, i.e. comites et barones, &c.]

[65]

Part Twelve of the Reports482

or noble on the making of a writ, the delivery of the writ, or being seated

in Parliament by command of the writ. The Judges rule that he must sit,

although the ennoblement of a baron created by the king by letters patent

under the Great Seal is created once the letters are made. This Case fore-

shadows some of the technical problems at the heart of the later U.S. Case

of Marbury v. Madison.

In the Parliament a question was made by the Lord of Northampton, Lord

privy Seale, in the upper house of Parliament; That one Edward Nevil, the

father of Edward Nevil, Lord of Aburgaveney, which now is, in the 2, and 3.

of Queen Mary, was called by Writ to Parliament, and died before the Par-

liament: If he was a Baron, or no, and so ought to be named, was the question;

and it was resolved by the Lord Chancellor, the two chief Justices, chief Baron,

and divers other Justices there present, that the direction and delivery of the

Writ did not make a Baron or Noble, until he did come to the Parliament,

and there sit, according to the commandment of the Writ, for until that, the

Writ did not take its effect, & the words of the Writ were wel penned, which

are, Rex & Regina, &c. Edwardo Nevil de Aburgaveny Chivalier, quia de ad-

visamento & assensu consilii nostri pro quibusdam arduis, & urgentibus negotiis

statum & defensionem regni nostri Angliae concernentibus, quoddam Parlia-

mentum nostrum apud Westmonasterium, 21 die Octobris proximo futuro teneri

ordinavimus, & ibidem vobiscum, ac cum Praelatis, Magnatibus & Proceribus

dicti regni nostri colloquium habere & tractatum: vobis in ﬁde & Ligeantia,quibus

nobis tenemini, ﬁrmiter jungendo mandamus, quod consideratis dictorum ne-

gotiorum arduitate & periculis iminentibus, cessante excusatione quacunque,

dictis die & loco personaliter intersitis nobiscum, ac cum Praelatis, Magnatibus

ac Proceribus supradictis, super dictis negotiis tractaturis, vestrumque consilium

impensur. & hoc sicut nobis, &c.

And in the 35 Hen. 6. 46. and other Books,

1. [Ed.: The king and queen, etc. to Edward Nevil of Aburgaveney, knight. Because, by the advice and

consent of our council, we have ordained our certain parliament to be held at Westminster on the twenty-

ﬁrst day of October next coming, for certain arduous and urgent business concerning the estate and defence

of our realm of England, there to have discussion and treaty with you and with the prelates, great men

and peers of our said realm: we, ﬁrmly enjoining, command you upon the faith and allegiance which you

bear unto us that, considering the arduousness and imminent dangers of the said business, that you, leaving

aside all excuses whatsoever, be there personally at the said day and place, with us and with the prelates,

great men and peers mentioned above, to treat and give your advice upon the said business, and this as

you, etc.]

The Writ

doth not

make a

Peere, &c.

The Lord Aburgaveney’s Case 483

he is called a Peer of Parliament, the which he cannot be until he sit in Par-

liament, and he cannot be of the Parliament until the Parliament begin: And

forasmuch as he hath been made a Peer of Parliament by Writ (by which

implicitly he is a Baron) the Writ hath not its operation and effect, until he

sit in Parliament, there to consult with the King and the other Nobles of the

Realm; which command of the King by his Supersedeas

may be counter-

manded, or the said Edward Nevil might have excused himself to the King,

or he might have waived it, and submitted himself to his Fine, as one who

is destrained to be a Knight, or one learned in the Law is called to be a Serjeant,

the Writ cannot make him a Knight, or a Serjeant; And when one is called

by Writ to Parliament, the order is, that he be apparrelled in his Parliament

Robes, and his Writ is openly read in the upper house, and he is brought into

his place by two Lords of Parliament, and then he is adjudged in Law, Inter

pares Regni,

that is to say, Ut cum olim Senatores e censu eligebantur, sic Barones

apud nos habiti fuerint, qui per integram Baroniam terras suas tenebant, sive 13.

feoda militum, & tertiam partem unius Feodi militis, quolibet Feodo computato

ad 20 l. quae faciunt 400 marcas denarii erat valentia unius Baroniae integrae,

& qui terras & redditus ad hanc valentiam habuerint, ad Parliamentum sum-

moniri solebant;

So that by this it appears, that every one who hath an entire

Barony may have of right and of course a Writ to be summoned to Parliament,

for without Writ none can sit in Parliament: And with this agrees our Books,

for Una voce

they agree, that none can sit in Parliament as Peer of the Realm,

without matter of Record, and if Issue be taken, whether a Baron or no Baron,

Earl or no earl, this shall not be tryed per paiis,

but by the Record, by which

it appears, that he was a Peer of Parliament, for without matter of Record he

cannot be a peer of Parliament, | 35 Hen. 6. 46. 48 Edw. 3. 30 b. 48 Ass. pl.

6. 22 Ass. pl. 24. Register, 287. Henricus tertius post magnas perturbationes &

enormes exactiones inter ipsum Regem, Simonem de Monte forti, & alios Barones

motas & susceptas, statuit & ordinavit, quod omnes illi Comites & Barones regni

2. [Ed.: Writ staying proceedings in a lower court.]

3. [Ed.: Among the peers of the realm,]

4. [Ed.: Just as senators were once chosen for their wealth, so amongst us there were barons who held

their lands by a whole barony, or thirteen knight’s fees and the third part of a knight’s fee, each fee being

reckoned at twenty pounds, which makes four hundred marks and one penny to be the value of one whole

barony; and whoever had lands and rents to this value was usually summoned to parliament.]

5. [Ed.: with one voice.]

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6. [Ed.: on the country, or unsworn.]

Part Twelve of the Reports484

Angliae, quibus ipse Rex dignatus est brevia summonitionis dirigere, venirent ad

Parliamentum, & non alii nisi forte dominus Rex alia illa brevia eis dirigere

voluisset:

Which Act or Statute continues in force to this day, so that now

none, although that he hath an entire Barony, can have a Writ of Summons

to Parliament without the King’s Warrant, under the privy Seal at least.

But if the King create any Baron by Letters Patents under the great Seal

to him and to his Heirs, or to him and to his Heirs of his body, or for life,

&c. there he is a noble man presently, for so he is expressly created by Letters

Patents of the King, which cannot be countermanded: And he ought to have

a Writ of Summons to Parliament of right and of course, and he shall be tryed

by his Peers, if he shall be arraigned before any Parliament, but so shall not

he be who is called by Writ, until he sits in Parliament, which is the diversity.

Richard the second created John Beauchamp of Holt, Baron of Kidder-

minster, by Letters Patents, dated 10. Oct. 11. year of his Raign, where all

others before him were created by Writ.

Of Convocations.

(1610) Trinity Term, 8 James I.

First Published in the Reports, volume 12, page 72.

Ed.: These notes are of a judicial conference in which the limits of the

powers of a Church Convocation are discussed. Particularly, the convo-

cation cannot change the requirements of Common Law, Statute, or cus-

tom.

Note, it was resolved by the two chief Justices and divers other Justices, at

a Committee before the Lords in the same Parliament, on divers points con-

cerning the authority of a Convocation.

1. That a Convocation cannot assemble at their Convocation without the

assent of the King.

2. That after their assembly they cannot confer together to constitute any

Cannons without licence del Roy.

7. [Ed.: Henry III, after the great disturbances and enormous accusations moved and begun between

the selfsame king, Simon de Montfort, and other barons, enacted and ordained that all those earls and

barons of the realm of England to whom the selfsame king thinks it worthy to direct writs of summons

shall come to the parliament, and no others, unless the lord king will direct other writs to them:]

Convoca-

tion.

Of Convocations 485

3. When they upon conference conclude any Cannons, yet they cannot

execute any of their Cannons without Royall assent.

4. They cannot execute any after Royall assent, but with these four limi-

tations:

1. That they be not against the Prerogative of the King.

2. Nor against the Common Law.

3. Nor gainst any Statute Law.

4. Nor against any Custome of the Realm.

And all this appears by the Statute 25 Hen. 8. cap. 19. and this was but an

afﬁrmance of what was before the said Statute, for that it appears by the 19

Edw. 3. title Quare non Admisit, 7. where it is held, that if a Cannon Law be

against the Law of the Land, the Bishop ought to obey the commandment

of the King, according to the Law of the Land, 10 Hen. 7. 17. there is a Cannon

that no Spirituall person shall be put to answer before a secular Judge; But

this does not bind, because it is against the Common Law: And it appears by

the Statute of Merton cap. 9. that they in case of Bastardy, were enforced to

certiﬁe against the Law of the church, that Nati ante matrimonium fuerint

Bastardi, quia Ecclesia habet tales pro legitimis, & rogaverunt omnes Episcopi

Magnates quod consentirent, quod qui nati fuerint | ante matrimonium essent

legitimi,

which proves, that the Cannon Law in this point being repugnant

to the Law of the Land, was not of any force: And for this, they implored the

aid of the Parliament, Et omnes Comites & Barones una voce responderunt, quod

nolumus leges Angliae mutari, quae huc usque usitatae sunt et approbatae.

2 Hen. 6. 13. A Convocation may make Constitutions, by which those of

the Spiritualty shall be bound, for this, that they all, or by representation, or

in person, are present, but not the temporalty.

21 Edw. 4. 47. The Convocation is spirituall, and all their Constitutions

are Spirituall. Vide the Records in the tower of 18 Hen. 8. 8 Edw. 1. 25 Edw.

1. 11 Edw. 2. and 15 Edw. 2.

Prohibitio Regis ne Clerus in Congregatione sua, &c. attemptet contra jus seu

Coronam: alia, ne quod statuat in Concilio suo in prejudicium Regis seu legis,

1. [Ed.: Those born before marriage were bastards, because the Church regards them as legitimate; and

all the bishops asked the great men whether they would consent that those who were born before marriage

should be legitimate,]

2. [Ed.: And all the earls and barons answered with once voice, “We will not change the Laws of England

which have until now been used and approved.”]

[73]

Part Twelve of the Reports486

&c.

By which it appears, that they can do nothing against the Law of the

Land; for every part of the Law, be it Common Law, or Statute Law, cannot

be abrogated nor altered without an Act of Parliament, to which every one

shall be party, except for Spirituall Causes, or which concern Spirituall persons,

if it be against the Prerogative of the King and the Common Law.

Proclamations.

(1610) Michaelmas Term, 8 James I.

In Conference Before the Lord Treasurer.

First Published in the Reports, volume 12, page 74.

Ed.: These are Coke’s notes of a conference with the Privy Council, in

which the King and Council sought an opinion on the authority of the

King to pass proclamations to restrict building in London or to regulate

the trade in starch, which was particularly in demand for the clothing of

the well to do, as it was necessary for ruffed collars. Coke, with Chief Justice

Fleming, Chief Baron Tanﬁeld, and Baron Altham, initially refused to an-

swer without consulting other Judges. Later, Coke answered, saying that

the King can only require subjects to obey the Law, but he could not extend

his prerogative beyond its legal bounds, could not create new crimes, and

could not enlarge the criminal jurisdiction of Star Chamber. It was one of

Coke’s most signiﬁcant attacks on the royal prerogative.

Memorand. That upon Thursday, 20 Sept 8 Regis Jacobi, I was sent for to

attend the Lord Chancellor, Lord Treasurer, Lord privy Seal, and the Chan-

cellor of the Dutchy; there being present the Attorney, the Solicitor, and Re-

corder: And two questions were moved to me by the Lord Treasurer; the one

if the King by his Proclamation may prohibit new Buildings in and about

London, &c. The other, if the King may prohibit the making of Starch of

Wheat; And the Lord Treasurer said, that these were preferred to the King as

grievances, and against the Law and Justice: And the King hath answered, that

3. [Ed.: The king’s prohibition that the clergy in their convocation, etc. should not attempt anything

against his right or crown. And another, that they make no enactment in their council in prejudice of the

king or the Law, etc.]

Proclamations 487

he will confer with his privy Council, and his Judges, and then he will do

right to them; To which I answered that these questions were of great im-

portance. 2. That this concerned the answer of the King to the body, viz. to

the Commons of the house of Parliament. 3. That I did not hear of these

questions untill this morning at nine of the Clock: for the grievances were

preferred, and the answer made when I was in my Circuit. And lastly, both

the Proclamations, which now were shewed, were promulgated, anno 5 Jac.

after my time of Attorney-ship: And for these reasons I did humbly desire

them that I might have conference with my Brethren the Judges about the

answer of the King, & then to make an advised answer according to law and

reason. To which the Lord Chancellor said, that every President had ﬁrst a

commencement, and that he would advise the Judges to maintain the power

and Prerogative of the King; and in cases in which there is no authority and

President, to leave it to the King to order in it according to his wisdome, and

for the good of his Subjects, or otherwise the King would be no more than

the Duke of Venice; And that the King was so much restrained in his Pre-

rogative, that it was to be feared the bonds would be broken: And the Lord

privy Seal said, that the Physitian was not alwaies bound to a president, but

to apply his Medecine according to the quality of the disease: And all concluded

that it should be necessary at that time to conﬁrm the Kings Prerogative with

our Opinions, although that there were not any former President or Authority

in Law, for every President ought to have a Commencement.

| To which I answered, That true it is, that every President hath a Com-

mencement, but when Authority and President is wanting, there is need of

great considerations, before that any thing of novelty shall be established, and

to provide that this be not against the Law of the Land: for I said, that the

King cannot change any part of the Common Law, nor create any Offence

by his Proclamation, which was not an Offence before, without Parliament.

But at this time I only desired to have time of consideration and conference

with my Brothers, for Deliberandum est diu, quod statuendum est semel;

which the Solicitor said, that divers Sentences were given in the Star Chamber

upon the Proclamation against building, and that I my self had given sentence

in divers cases for the said Proclamation: to which I answered, that Presidents

1. [Ed.: It requires a long time to deliberate concerning something which is laid down in an instant;]

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Part Twelve of the Reports488

were to be seen, and consideration to be had of this upon conference with

my Brethren, for that Melius est recurrere, quam male currere;

And that In-

dictment concludes, Contra leges & statuta;

but I never heard an Indictment

to conclude, Contra Regiam Proclamationem.

At last my motion was allowed,

and the Lords appointed the two chief Justices, chief Baron, and Baron Altham

to have consideration of it.

Note, the King by his Proclamation, or other waies, cannot change any

part of the Common Law, or Statute Law, or the Customs of the Realm, 11

Hen. 4. 37. Fortescue in laudibus Angliae legum, cap. 9. 18 Edw. 4. 35, 36,

&c. 31 Hen. 8. cap. 8. hic infra: Also the King cannot create any Offence by

his Prohibition or Proclamation, which was not an Offence before, for that

was to change the Law, and to make an Offence which was not, for Ubi non

est lex, ibi non est transgressio, ergo,

that which cannot be punished without

proclamation, cannot be punished with it. Vide le Stat. 31 Hen. 8. cap. 8.

which Act gives more power to the King then he had before, and yet there

it is declared, that proclamation shall not alter the Law, Statutes, or Customs

of the Realm, or impeach any in his Inheritance, Goods, body, life, &c. But

if a man shall be indicted for a contempt against a Proclamation, he shall be

ﬁned and imprisoned, and so impeached in his body and goods, vide Fortescue,

cap. 9. 18. 34. 36. 37, &c.

But a thing which is punishable by the Law, by ﬁne and imprisonment, if

the King prohibit it by his Proclamation, before that he will punish it, and

so warn his Subjects of the peril of it, there if he commit it after, this as a

Circumstance aggravates the Offence; But he by Proclamation cannot make

a thing unlawful, which was permitted by the Law before: And this was well

proved by the ancient and continuall forms of Indictments, for all Indictments

conclude, Contra legem & consuetudinem Angliae,

or Contra leges & statuta,

&c.

but never was seen any Indictment to conclude Contra Regiam procla-

matı´onem.

2. [Ed.: It is better to run back than to keep running astray;]

3. [Ed.: Against the Laws and Statutes;]

4. [Ed.: Against the royal proclamation.]

5. [Ed.: Where there is no Law, there is no trespass; therefore,]

6. [Ed.: Against the Law and custom of England.]

7. [Ed.: Against the Laws and Statutes, etc.]

8. [Ed.: Against the royal proclamation, etc.]

Proclamations 489

So in all cases the King out of his providence, and to prevent dangers, which

it will be too late to prevent afterwards, he may prohibit them before, which

will aggravate the Offence if it be afterwards committed: And as it is a grand

Prerogative of the King to make Proclamation (for no Subject can make it

without authority from the King, or lawfull Custom) upon pain of ﬁne and

imprisonment, as it is held in the 22 Hen. 8. Procl. B. but we do ﬁnde divers

Precedents of Proclamations which are utterly against Law and reason, and

for that void, for, Quae contra rationem juris introducta sunt non debent trahi

in consequentiam.

An Act was made, by which Forraigners were licensed to Merchandize

within London, Hen. 4. by Proclamation prohibited the execution of it, and

that it should be in suspence Usque ad proximum Parliamentium,

which was

against Law, vide dors. claus. 8 Hen. 4. Proclamat. in London. But 9 Hen. 4.

| An Act of Parliament was made, That all the Irish people should depart the

Realm, and go into Ireland before the feast of the Nativity of the blessed Lady,

upon pain of death, which was absolutely in terrorem, and was utterly against

the Law.

Hollinshed 722. An. Dom: 1546. 37 Hen. 8. the Whore-houses, called the

stews, were suppressed by Proclamation, and sound of Trumpet, &c.

In the same Term it was resolved by the two chief Justices, chief Baron,

and Baron Altham, upon conference betwixt the Lords of the privy Council

and them, that the King by his Proclamation cannot create any Offence which

was not an Offence before, for then he may alter the Law of the Land by his

Proclamation in a high point, for if he may create an Offence where none is,

upon that ensues ﬁne and imprisonment: Also the Law of England is divided

into three parts, Common Law, Statute Law, and Custom; But the Kings

Proclamation is none of them: Also Malum, aut est malum in se, aut prohi-

bitum,

that which is against Law is malum in se; malum prohibitum

is such

an Offence as is prohibited by Act of Parliament, and not by Proclamation.

Also it was resolved, that the King hath no Prerogative, but that which the

Law of the Land allows him.

9. [Ed.: Whatever is brought in contrary to the reason of the Law ought not to be treated with con-

sequence.]

10. [Ed.: Until the next parliament,]

11. [Ed.: A wrong is either wrong in itself, or a wrong by reason of [statutory] prohibition,]

12. [Ed.: a wrong in itself; a wrong by reason of prohibition.]

[76]

Part Twelve of the Reports490

But the King for Prevention of Offences, may by Proclamation admonish

his Subjects that they keep the Lawes, and do not offend them, upon pun-

ishment to be inﬂicted by the Law, &c.

Lastly, if the offence be not punishable in the Star Chamber, the Prohibition

of it by Proclamation cannot make it punishable there: And after this reso-

lution, no Proclamation imposing Fine and Imprisonment, was afterwards

made, &c.

Thomlinson’s Case.

(1605) Hillary Term, 2 James I.

In the Court of Common Pleas.

First Published in the Reports, volume 12, page 104.

Ed.: A note on a grant of a writ of habeas corpus to a litigant arrested by

the Court of Admiralty for failing to give evidence in a Case ﬁled before

it, but which did not happen on the sea and was not in its jurisdiction. A

note by the editors of the ﬁrst edition suggests that this opinion was written

for insertion into Part Seven of the Reports, but Coke withdrew it on the

command of the King.

Theodore Thomlinson had brought an action of Account for Goods against

one Philips in the Common Pleas, and thereupon Philips sued Thomlinson

in the Court of the Admiralty, supposing the Goods to have been received in

forain parts beyond the Seas: and the said Thomlinson being committed for

refusing to answer upon his Oath to some Interrogatories there proposed to

him, brought his Habeas Corpus,

which was returned thus, Ego William Pope

Marescallus supremae Curiae Admiralitatis Angliae Dom. Justic. Sereniss.Reginae

nostrae in brevi huic Schedulae annex. speciﬁcat. Certiﬁc. quod infra vocat. Theo-

dore Thomlinson ante advent. istius brevis capt. fuit & custodiae meae commiss.

ex eo quod dictus Theodorus Thomlinson vinculo sacramenti coram Judice Ad-

miralitatis Angliae astrictus ab respondend. quibusdam articulis contra eum in

dictaˆ cur’ dat’ &c. sub poena quinque librarum &c. contumaciter examen suum

13. [Ed.: The tribune of the people interrogating.]

1. [Ed.: Writ to ascertain the legality of an incarceration.]

Tribuna

plebium

inter-

rangte.

Walter Chute’s Case 491

subire recusavit, Idcirco, &c.

And it was resolved by the Court of Common

Pleas.

1. That the Court of Admiralty hath no Cognizance of things done beyond

Sea, And this appears plainly by the Statute of 13 Ric. 2. cap. 5. the words of

which Statute are, that the Admirals and their Deputies shall not meddle from

henceforth of any thing done within the Realm, but only of a thing done

upon the Sea, Vide 19 Hen. 6. fol. 7. For things transitory done beyond the

Seas, are either triable in the Kings Courts, or the party grieved may have his

remedy before the Justices where the Fact was done beyond Seas.

2. That the proceedings in the Court of the Admiralty are according to the

course of the Civill Law, and therefore the Court is not of Record, and by

consequence cannot assesse any Fine in such case, as Judges of a Court of

Record may do.

3. That the Return above mentioned was insufﬁcient, as being too generall,

because it is not speciﬁed for what cause or matter Thomlinson was examined,

so as it might appear that the Interrogatories were of such things, as were

within their Jurisdiction, and that the party ought by Law to answer upon

his Oath, for otherwise he might very well refuse.

This case was intended to have been inserted by my Lord Coke into his 7th.

Report, but not then published, because the King commanded that it should not

be Printed, but the Judges resolved ut supra.

Walter Chute’s Case.

(1614) Easter Term, 12 James I.

In Conference in Serjeants’ Inn.

First Published in the Reports, volume 12, page 116.

Ed.: This is a note of an unusual judicial conference in which they con-

sidered the legality of the King’s creating a variety of ofﬁces, particularly

2. [Ed.: I, William Pope, marshal of the supreme court of Admiralty of England, certify unto the lords

Justices of our most serene queen speciﬁed in the writ annexed to this schedule that the within-named

Theodore Thomlinson was taken and committed to my custody, before the arrival of this writ, forasmuch

as the said Theodore Thomlinson was constrained by the bond of an oath to answer before the Judge of

the Admiralty of England upon certain articles given against him in the same court, etc. on pain of ﬁve

pounds, etc., and contemptuously refused to undergo his examination. Whereupon, etc.]

Part Twelve of the Reports492

one for Walter Chute to register aliens. The Judges held that it would be

illegal for the King to create the ofﬁce, because it would be more for private

gain than for public beneﬁt. This is an important limit imposed by Law

on royal patronage and so on royal revenue.

Walter Chute Sewer to the King, did exhibite a Petition to the King, that

for the safety of the Realm, and the security of strangers within the Realm,

that the King would vouchsafe to erect a new Ofﬁce of Registering of all

strangers within the Realm, except Merchant-strangers, to be kept at London,

and to grant the said Ofﬁce to the Petitioner, with a reasonable Fee, or without

a Fee: And that all strangers, except Merchant-strangers, might depart the

Realm within a certain convenient time, if they do not repair to the said

of the Councel did refer to me, by their honourable Letters of the 13. of Novem.

1613, that I calling to me Counsel learned in the Law, should consider what

the Law is in that behalf, and how it may stand with conveniency and policy

of State, to put the same in execution, and by whom it ought to be performed:

And upon conference had with the Justices of the Common Pleas, and the

other Justices and Barons of Serjeants Inne Fleetstreet; It was resolved, that

the erections of such new Ofﬁces, for the beneﬁt of a private man was against

all Law, of what nature soever: And therefore where one Captain Lee did make

suit to the King to have a new ofﬁce to make Inventory of Goods of those

who died testate or intestate; It was resolved by the Lord Chancellor and my

self, that such Grant shall be utterly void, although no certain person hath

it, and that this was against Common Law, and the Statute of 21 Hen. 8. In

like manner, another sued | to have the Registering of Birth-dates, and the

time of the death of each person within the Realm, and that it might be on

Record and authenticall: So Mich. 19 Jac. To make a new Ofﬁce in the upper

Bench, for the only making of all Latitats at the suit of the Lord Daubigny,

and after him of the Lord John Hungerford, and others, was resolved to be

void. So Littletons suit, to name an Ofﬁcer to be a generall Register, or rather

Tabler or Indexer of all Judgements, for Debts and Damages, Recognizances,

Bils, Obligations to the King, Deeds inrolled, Fines upon Offenders in the

Star Chamber, and other Courts whatsoever: and this was pretended to be

for the beneﬁt of the Purchaser, and the ready ﬁnding of Records; and to such

purpose was made the Statute of the 27 Eliz. for inrolling of Statutes; but the

Suit was rejected by the two chief Justices and others: for every Court shall

New erect-

ed ofﬁce

void.

[117]

Walter Chute’s Case 493

choose Ofﬁcers either by Law or Prescription: the Law or Custom may not

be changed without a Parliament; and so it was resolved Hil. 12 Jac. Regis;

and divers other such inventions were resolved to be against Law and Record.

As to the second, in the case of Sir Walter Chute, concerning the conven-

iency or inconveniency of it, it was resolved, that it was inconvenient for divers

causes. 1. For a private man to have private ends. 2. The numbring of Strangers

by a private man would infer a Terror, and the King and Princes of other

Countries will take offence at it, and will do the like to the Kings Subjects.

3. It is to be considered what breach it will be to former Treaties.

As to the third, in the case of Sir Walter Chute, that may be performed

without any inconvenience; and so it was devised by the Lord Burleigh, and

other Lords of the Councel: An. 37 Eliz. viz. To write Letters to the Mayors,

Bayliffs, or other head Ofﬁcers of every City, Borough, or Town, where any

strangers are resident, to certiﬁe how many strangers, and of what quality are

in their Cities, &c. the which they are to know in respect of their Inhabitants,

and Contributions to the poor, and other charges, and this may be done

without any writing.

Which Suit being made to the Lords, was well approved by them, and the

Suit utterly disallowed the 3. Dec. An. 3 Hen. 8. Commission granted to divers,

to certiﬁe the number of Strangers, Artiﬁcers, with the number of their Ser-

vants within London, and the Suburbs thereof, &c. according to the Statutes.

See Candishs Case, 29 El. for making of all Writs of Supersedeas in the Kings

Bench.

13 Eliz. A grant of an Ofﬁce of Thomas Knivet, to examine all his Majesties

Auditors and Clerks of the Pipe concerning their Ofﬁces for years: It was

resolved by the Court to be against Law, for it belongs to the Barons who are

Judges; and it is also an Invocation in a Court of Justice. 25 Eliz: A Grant of

an Ofﬁce to Thomas Leichﬁeld to examine all deceits false allowances of the

Queens ofﬁcers for eight years, resolved to be void.

The making of Subpoenas in Chancery anciently belonged to the six Clerks:

The late Queens Majesty granted the same by Patent to one particular man.

The keeping and ﬁling of Afﬁdavits in Chancery anciently belonged to the

man.

The erecting and putting down of Innes hath been anciently in the power

of the Justice of Peace. His Majesty hath given that power by Patent to a

particular man.

Part Twelve of the Reports494

| The taking of the Depositions, and all other proceedings, before and by

the Commission which hath used to be taken and kept by the Commissioners

themselves, or some Clerk of their appointment; his Majesty hath granted the

same by Patent to one particular man.

The King by his Letters Patents granted to Simon Darlington the Ofﬁce

of Alveger and limited what Fees he should take.

The sole drawing, writing, and ingrossing of all Licences and Pardons was

granted to Edward Bacon Gent. with the Fee that had formerly been taken,

and a Restraint for all others, &c.

The Ofﬁces of Subpoenas was granted to Thomas George and others during

life, with the fee of 2s. and a restraint that no others presume to make those

Writs.

The Ofﬁce of making and registering all manner of assurances and Policies,

&c. was, by Letters Patents granted to Richard Gandler Gent. with such fees

as the Lord Major and others should rate, with power to rate fees, and a restraint

of all others, &c. which was during pleasure, and afterwards to him and others

during lives.

The Ofﬁce of writing Tallies and Counter-Tallies granted to Sir Vincent

Skinner.

The ofﬁce of ingrossing Patents to the great Seal, and an encrease of fees

granted late to Sir Richard Young, and Mr. Pye.

Sir Stephen Procter’s [Proctor’s] Case.

(1614) Easter Term, 12 James I.

In Conference in Star Chamber.

First Published in the Reports, volume 12, page 118.

Ed.: Note of a judicial conference in Star Chamber, on the result when

Judges are evenly divided on a judgment. The Common Law courts did

not enter judgment unless there was a majority. The Chief Justices held

that the matter for the Star Chamber should be resolved according to its

own precedents. Coke recites only two, which are not utterly conclusive.

In an Information preferred in the Star Chamber by the Attorney-generall,

against Stephen Procter, Berkenhead, and others, for Scandall and Conspiracy

of the Earl of Northampton, and the Lord Wooton. At the hearing of this

case, were present eight Lords, Scil. The chief Baron, the two chief Justices,

[118]

Quare.

Judges di-

vided in

the Star

Chamber.

Sir Stephen Procter’s Case 495

two Bishops, one Baron, the Chancellor of the Exchequer, and the Lord Chan-

cellor: And the three chief Justices, and the Temporall Baron condemned Sir

Stephen Procter, and ﬁned and imprisoned him: But the Lord Chancellor,

the two Bishops, and the Chancellor of the Exchequer acquitted him. And

the question was, if Sir Stephen Procter shall be condemned or acquitted; and

it seemed to some of the Clerks prima facie,

that the better shall be taken for

the King, and that he shall be condemned, but others were of the contrary

opinion; and hereupon the matter was referred to the two chief Justices, calling

to their assistance the Kings learned Councel: And ﬁrst they resolved, that

this question must be determined by the Presidents of the Court of Star Cham-

ber, for that Court is against the rule and order of all other Courts, for in the

Kings Bench, the Common Pleas, or the Exchequer, or in the Exchequer

Chamber, where all the Justices are assembled, if the Justices are equally di-

vided, no judgment can be given. And so it is in the Court of Parliament;

and therefore this course ought to be warranted by the custom of the Court:

And as to that, two Presidents only were produced for the maintenance of

the said Custom, Viz. One in the Hilary Term, 39 El. between Gibson Plaintiff,

and Grifﬁth and others Defendants, where the Complaint was for a Riot, and

at the hearing of the Case, there was eight present, four gave their judgements

that the Defendants were guilty, but the other four, whereof the Lord Chan-

cellor was one, pronounced | the Defendants not guilty, and no sentence of

condemnation was ever entered, because the Lord Chancellor was one of the

four who acquitted them. The other was Hil. 45 Eliz. In an information by

the Attorney-general against Katherne and others, for forging of a Will, and

a Misdemeanor for procuring a fraudulent Deed to defeat the Queen of her

Escheat: And eight were in presence at the hearing of the Cause, whereof four

found the Defendants guilty of Forgery, and did inﬂict the punishment ac-

cording to the Statute of the 5 Eliz. but the others, whereof the Lord Chancellor

was one, gave sentence, that the Defendants were guilty of the Misdemeanor,

and not of the Forgery, and imposed a ﬁne of 500 l. only, which decree was

entered according to the Lord Chancellors voice, although the sentence on

the other side was more beneﬁciall for the King, and no other president could

be found in this case, the which I have reported this Term.

1. [Ed.: on the face of it,]

[119]

Part Twelve of the Reports496

Exaction of Benevolence.

First Published in the Reports, volume 12, page 119.

Ed.: In this note case, Coke described the precedents for the monarch re-

questing gifts from wealthy nobles to fund various projects when there was

no money left from the last Parliamentary supply, or grant of taxes. Because

the benevolences were technically voluntary, they were lawful. This case

has a considerable signiﬁcance as a predecessor decision to the Five Knights’

Case and the Petition of Right.

Note, the exaction under the good name of Benevolence began in this

manner.

When King Edward the fourth, had a Subsedy granted to him in the 12

Edw. 4. by Parliament, because he could have no more by Parliament, and

without a Parliament he could not have any Subsedy to be levied of the Lands

and Goods of the Subject, he invented this shift or device, in which three

things are to be observed.

1. The cause.

2. The Invention.

3. The Successe.

1. The Duke of Burgandy, who had married Margaret, the Sister of Edward

the fourth solicited King Edward to joyn in War with him against the French

King, to which the King easily consented, because he sought revenge against

the French King for aiding the Earl of Warwick, Queen Margaret, and Prince

Edward, and their party, and therefore, to make War against the French King,

was the cause.

2. The invention was, The King called before him at severall times a great

number of the wealthiest of his Subjects, to declare to them his necessity, and

his purpose to levy War for the honour and safety of the Kingdom, and de-

manded of each of them a certain summ of money, and the King treated with

them, with such great grace and clemency, and with such gentle prayer to

assist him in his necessity, for the honour of the Realm, that they very freely

yeelded to his request, for the honour and safety of the Realm. Amongst the

rest, there was a Widow of a very good Estate, of whom the King meerly asked

1. Hollingshead, 11 Edw. 4 694. Stow. 701.

Concern-

ing Benev-

olence.

Exaction of Benevolence 497

what she would willingly give him for the maintenance of his Wars; By my

faith, quoth she, for your lovely countenance sake, you shall have twenty

pound, which was more then the King expected; the King thanked her, and

vouchsafed to kisse her, upon which she presently swore he should have twenty

pounds more.

3. The successe and event was: That wheras the King called this a Benev-

olence to please the people, yet many of the people did much grudge at it,

and called it a Malevolence.

Primo Ed. 5. in the Oration of the Duke of Buckingham in Guild hall in

London, he inveighed, amongst other things, against this Taxation under the

name of Benevolence. 1 Ric. 3. cap. 2. the Subjects of the Realm shall not be

charged with such charge or imposition called Benevolence, which tendeth

to the subversion of the Law, and destruction of Commonalty, as appears in

the Preamble (where any such charge). And that such exaction before taken,

under the name of benevolence, shall not be drawn into example | to make

such or the like charge, but shall be damned and adnulled for ever: But it

appears by the Preamble, that this was against the wil and liberty of the Subject,

but a free-wil offering is not restrained.

An. 6 Hen. 7. The King declared in Parliament, that he had just cause of

War against the French King, which for the causes there shewn was approved,

and for that he desired a Benevolence towards the maintenance of it; and every

one promised his helping hand, the which the King greatly commended; and

to the intent that the poorer sort might be spared, he demanded it by way of

a Benevolence, according to the example of Edward the fourth and published,

that he would by their open hands measure their benevolent hearts; and he

who gives but a little, according to his gift.

By this means he collected great summs of money, with some grudge for

the extremity shewn by the Commissioners, 11 Hen. 7. cap. 20. An Act was

made for levying of that Benevolence, according to their assent, but only of

such as assented.

An: 20 Hen. 7. A Commission to levy what was granted by 11 Hen. 7.

Note, that 15 Hen. 8. a Commission under the great Seal, called a Com-

mission of Anticipation, to collect the Subsidy before the day.

An: 16 Hen. 8. For War with France, a Benevolence levied by Commission

2. Stow 880.

[120]

Part Twelve of the Reports498

with great Curses and Imprecations against the Council, and with successe,

for it was to levy a sixth part of the value in money or Plate against the good

will of the Subject.

An: 26 Hen. 8. Another Benevolence levied by Commission for mainte-

nance of War against France, with ill successe, for it was exacted of the Subject

against his good will. But if the Subjects of their free will, without any com-

pulsion, will give to the King for publick uses any summs of money, this is

not prohibited by any Statute.

And the Statute 11 Hen. 7. cap. 18. proves this, where the Parliament compels

them who have freely granted any thing to the King for publick use, to

pay it.

Feb. An: 40 Eliz. It was resolved by all the Justices and Barons, that a free

Grant to the Queen without coercion is lawfull, and accordingly they granted

to the Queen, Quod nota bene, quia, &c.

3. [Ed.: which note well, because, etc.]

Part Thirteen of the Reports

The Thirteenth Part of Coke’s Reports was published in 1659 under the initial

title of the publisher, Certain Select Cases in Law, Reported by Sir EDWARD

COKE, Knight, Late Lord Chief Justice of ENGLAND And one of His Maj-

esties Council of State: Translated out of a Manuscript written with his own

hand. Never before Published. In later editions of the Reports, it was bound

in under the title The Thirteenth Part of the Reports published from the notes

of Sir Edward Coke, Knight. after his Death. The reports in this part were drawn

from the same manuscript as those in Part Twelve.

(Preface)

To The Reader.

Reader,

It may seem altogether an unnecessary work to say any thing in the praise

and vindication of that Person and his Labours, which have had no less then

the generall approbation of a whole Nation convened in Parliament: For if

King Theodorick in Cassiodore could afﬁrme, Neque enim dignus est a quopiam

redargui qui nostro judicio meretur absolvi,

That no man ought to be reproved

whom his Prince commends. How much rather then should men forbear to

censure those and their Works which have had the greatest allowance and

attestation a Senate could give, and to acquiesce and rest satisﬁed in that

judgement? Such respect and allowance hath been given to the learned Works

of the late Honourable and Venerable Chiefe Justice, Sir Edward Coke, whose

Person in his life time was reverenced as an Oracle, and his Works (since his

decease) cyted as Authentick Authorities, even by the Reverend Judges them-

1. [Ed.: For neither is it worthy in any place to reprove someone who in our judgment deserves to be

absolved.]

Part Thirteen of the Reports500

selves. The acceptance his Books (already extant) have found with all knowing

Persons, hath given me the conﬁdence to commend to the publick view some

Remains of his, under his owne hand-writing, which have not yet appeared

to the World, yet (like true and genuine Eaglets) are well able to behold and

bear the light: They are of the same Piece and Woofe with his former Works,

and in respect of their owne native worth, and the reference they bear to their

Author, cannot be too highly valued: Though, in respect of their quantity and

number, the Reports are but few; yet, as the skilfull Jeweller will not lose so

much as the very ﬁlings of rich and precious mettals; and the very fragments

were commanded to be kept where a Miracle had been wrought, Propter mir-

aculi claritatem et evidentiam:

So these small parcels, being part of those vast

and immense labours of their Author, great almost to a Miracle (if I may be

allowed the comparison:), were there no other use to be made of them (as

there is very much, for they manifest and declare to the Reader many secret

and abstruse points in Law, not ordinarily to be met with in other Books so

fully and amply related) deserve a publication, and to be preserved in the

respects and memories of Learned men, and especially the Professors of the

Law; and to that end they are now brought to light and published. If any

should doubt of the truth of these Reports of Sir Edward Coke, they may see

the originall Manuscript in French, written with his own hand, at Henry

Twyfords Shop in Vine-Court Middle Temple.

Farewell.

J.G.

2. [Ed.: On account of the clarity and distinctness of the miracle:]

Prohibitions 501

Prohibitions.

(1609) Hilary Term, 6 James I

In Conference before the King.

First Published in the Reports, volume 13, page 30.

Ed.: These are Coke’s notes of another conference in which he defended

the prohibitions issued against the local court held by the Lord President

of York, only one term after his last conference. Coke chronicles typical

prohibitions to the King’s satisfaction. See De Modo Decimandi, p. 505.

Upon Wednesday, being Ashwednesday, the day of February, 1606.

A great Complaint was made by the President of York unto the King, That

the Judges of the Common Law had, in contempt of the Command of the

King the last Term, granted sixty or ﬁfty Prohibitions at the least out of the

Common-Pleas, to the President and Councel of York after the sixth day of

February, and named three in particular, (scil.) between Bell and Thawptes,

another between Snell and Huet, and another in an Information of a Riotous

Rescue preferred by English Bill by the Attorney General against Christopher

Dickenson, one of the Sheriffs of York, and divers others, in rescuing of one

William Watson out of the Custody of the Deputy of one of the Pursuivants

of the same Councel who had arrested the said Watson by force of a Com-

mission of Rebellion awarded by the President and Councel, which Prohi-

bition in the said Information was (as was afﬁrmed) denyed upon a motion

made in the Kings Bench the last Term, and yet granted by us. And the King

sent for me to answer to that Complaint: and I onely, all the rest of the Justices

being absent, waited upon the King in the Chamber neer the Gallery; Who,

in the presence of Egerton Lord Chancellor, the Earl of Salisbury Lord Trea-

surer, the Lord of Northampton Lord Privy Seal, the Earl of Suffolk Lord

Chamberlain, the Earl of Worcester, the Archbishop of Canterbury, the Lord

Wotton, and others of his Councel, rehearsed to me the Complaint aforesaid:

and I perceived well, that upon the | said Information he had conceived great

displeasure against the Judges of the Common Pleas, and chieﬂy against me;

To which I (having the Copy of the Complaint sent to me by the Lord Treasurer

the Sabbath day before) answered in this manner, That I had, with as much

brevity as the time would permit, made search in the Ofﬁces of the Preig-

[31]

Part Thirteen of the Reports502

nothories of the Common Pleas: and as to the said Cases between Bell and

Thawptes, and Snell and Huet, no such could be found: but my intent was

not to take advantage of a Misprisal: and the truth was, that the sixth day of

February the Court of Common Pleas had granted a Prohibition to the Pres-

ident and Councel of York, between Lock Plaintiff, and Bell and others De-

fendants: and that was, a Replevyn in English was granted by the said President

and Councel, which I afﬁrmed was utterly against Law: For at the Common

Law no Replevyn ought to be made, but by Original Writ directed to the

Sheriff. And the Statute of Marlbridg cap. 21. and West. 1. cap. 17. hath au-

thorized the Sheriff upon Plaint made to him, to make a Replevyn; and all

that appeareth by the said Statutes, and by the Books of 29 Edw. 3. 21. 8 Eliz.

Dyer 245. And the King neither by his Instructions had made the President

and Councel Sheriffs, nor could grant to them power to make a Replevyn

against the Law, nor against the said Acts of Parliament; but the same ought

to be made by the Sheriff. And all that was afﬁrmed by the Lord Chancellor

for very good Law: And I say, that it might well be that we have granted other

Prohibitions in other Cases of English Replevyns. Another Prohibition I con-

fess we have granted between Sir Bethel Knight, now Sheriff of the County

of York, as Executor to one Stephenson, who had made him and another his

Executors, and preferred an English Bill against Chambers, and divers others

in the nature of an Action upon the Case, upon a Trover and Conversion in

the life of the Testator of goods and Chattels, to the value of 1000 l. and

because the other Executor would not joyn with him, although he was named

in the Bill, he had not any remedy at the Common Law, he prayed remedy

there in Equity: and I say, that the President and Councel have not any au-

thority to proceed in that Case, for divers causes.

1. Because there is an express limitation in their Commission, that they

shall not hold plea between party and party &c. unless both parties, or one

of them, tanta paupertate sunt gravati,

that they cannot sue at the Common

Law: and in that case the Plaintiff was a Knight, and Sheriff, and a man of

great ability.

2. By that Suit the King was deceived of his Fine, for he ought to have had

200 l. Fine, because that the damages amounted to 4000 l. and that was one

of the causes that the Sheriff began his Suit there, and not at the Common

1. [Ed.: are grieved with such poverty,]

Prohibitions 503

Law: another cause was, that their Decrees which they take upon them are

ﬁnal and uncontroulable, either by Error, or any other remedy. And yet the

President is a Nobleman, but not learned in the Law; and those which are of

the Councel there, although that they have the countenance of Law, yet they

are not learned in the Law; and nevertheless they take upon them ﬁnal and

uncontroulable Decrees in matters of great importance: For if they may deny

Relief to any at their pleasure without controulment, so they may do it by

their ﬁnal Decrees without Error, Appeal, or other remedy: which is not so

in the Kings Courts where there are ﬁve Judges; for they can deny Justice to

none who hath Right, nor give any Judgment, but the same is controulable

by a Writ of Error, &c. | And if we shall not grant Prohibitions in Cases where

they hold Plea without authority, then the subjects shall be wrongfully op-

pressed without Law, and we denyed to do them Justice: And their ignorance

in the Law appeared by their allowance of that Suit, scil. That the one Executor

had no remedy by the Common Law, because the other would not joyn in

suit with him at the Common Law: whereas every one learned in the Law

knoweth, that summons and severance lieth in any Suit brought as Executors:

and this also in that particular Case was afﬁrmed by the Lord Chancellor; and

he much inveighed against Actions brought there upon Trover and Conver-

sion, and said, that they could not be found in our ancient Books.

Another Prohibition I confess we have granted, between the L. Wharton,

who by English Bill sued before the Councel, Banks, Buttermere, and others,

for ﬁshing in his several Fishings in Darwent in the County of C. in the nature

of an Action of Trespass at the Common Law, to his damage of 200 l. and

for the causes next before recited, and because the same was meerly deter-

minable at the Common Law, we granted a Prohibition, and that also was

allowed by the Lord Chancellor. And as to the case of Information upon the

Riotous Rescous, I having forgotten to speak to that, the King himself asked

what the Case was? to whom I answered, that the case was, That one exhibited

a Bill there in the nature of an Action of Debt, upon a Mutuatus

against

Watson, who upon his Oath afﬁrmed, that he had satisﬁed the Plaintiff, and

that he owed him nothing, and yet because the Defendant did not deny the

Debt, the Councel decreed the same against him, and upon that Decree the

Pursuivant was sent to arrest the said Watson, who arrested him upon which

2. [Ed.: Action to collect a debt not much under seal.]

[32]

Part Thirteen of the Reports504

the Rescous was made: and because that the Suit was in the nature of an Action

of Debt upon a Mutuatus at the Common Law, and the Defendant at the

Common Law might have waged his Law, of which the Defendant ought not

to be barred by that English Bill, quia beneﬁcium juris nemini est auferendum:

the Prohibition was granted; and that was afﬁrmed also by the Lord Chan-

cellor: whereupon I concluded, that if the principal cause doth not belong

unto them, all their proceedings was coram non Judice,

and then no Rescous

could be done: but the Lord Chancellor said, that though the same cannot

be a Rescous, yet it was a Riot, which might be punished there: which I denyed,

unless it were by course of Law by force of a Commission of Oyer and Ter-

miner, and not by an English Bill: but to give the King full satisfaction in

that point, the truth is, the said Case was debated in Court, and the Court

inclined to grant a Prohibition in the said case; but the same was stayed to

be better advised upon, so as no Prohibition was ever under Seal in the said

Case.

Also I confess, that we have granted divers Prohibitions to stay Suits there

by English Bill upon penal Statutes: for the manner of prosecution, as well

for the Action, Proces, &c. as for the count, is to be pursued, and cannot be

altered; and therefore without question the Councel in such cases cannot hold

Plea, which was also afﬁrmed by the Lord Chancellor. And I said, that it was

resolved in the Reign of Queen Eliz. in Parots Case, and now lately in the

Case of the President and Councel of Wales, That no Court of Equity can be

erected at this day without Act of Parliament, for the reasons and causes in

the Report of the said Case of Parot.

And the King was well satisﬁed with these reasons and causes of | our pro-

ceedings, who of his Grace gave me his Royall hand, and I departed from

thence in his favour. And the surmise of the Number, and that the Prohibition

in the said Case in the Information was denied in the Kings Bench, was utterly

denied: for the same was moved when two Judges were in Court, who gave

not any opinion therein, but required Serjeant Hutton who moved it, to move

the same again when the Court was full, &c.

3. [Ed.: because the beneﬁt of the Law is not to be taken away from anyone:]

4. [Ed.: beyond its jurisdiction,]

[33]

The Case de Modo Decimandi 505

The Case de Modo Decimandi,

and of Prohibitions,

debated before the Kings Majesty.

(1609) Trinity Term, 7 James I

In Conference before the King.

First Published in the Reports, volume 13, page 37.

Ed.: These are Coke’s notes on the three-day debate on prohibitions held

in 1609, before the King and Council, between the bishops and Lawyers

of the civil Law, and the Common Law Judges over whether attempts by

priests to collect tithes that are due de modo decimandi, or according to

custom, can be brought in the ecclesiastical courts, or whether they must

be brought in the Law courts. The debates are illustrative of the dispute

between the Law and the church that was then ranging on several fronts.

Richard, Archbishop of Canterbury, accompanyed with the Bishop of Lon-

don, the Bishop of Bathe and Wells, the Bishop of Rochester, and divers

Doctors of the Civil and Canon Law, as Dr. Dunn Judg of the Arches, Dr.

Bennet Judg of the Prerogative, Dr. James, Dr. Martin, and divers other Doc-

tors of the Civil and Canon Law came attending upon them to the King to

Whitehall the Thursday, Friday, and Saturday after Easter-Term, in the Coun-

cel-Chamber; where the Chief Justice, and I my self, Daniel Judg of the Com-

mon-Pleas, and Williams Judg of the Kings-Bench, by the command of the

King attended also: where the King being assisted with his Privy Councel, all

sitting at the Councel-Table, spake as a most gracious, good, and excellent

Soveraign, to this effect: As I would not suffer any novelty or Innovations in

my Courts of Justice Ecclesiastical and Temporal; so I will not have any of

the Laws, which have had judicial allowances in the times of the Kings of

England before him, to be forgotten, but to be put in execution. And for as

much as upon the contentions between the Ecclesiastical and Temporal Courts

great trouble, inconvenience and loss may arise to the subjects of both parts,

namely when the controversie ariseth upon the jurisdiction of my Courts of

ordinary Justice; and because I am the head of Justice immediately under God,

and knowing what hurt may grow to my Subjects of both sides, when no

1. [Ed.: Of the custom of tithing,]

Part Thirteen of the Reports506

private case, but when the Jurisdictions of my Courts are drawn in question,

which in effect concerneth all my Subjects, I thought that it stood with the

Ofﬁce of a King, which God hath committed to me, to hear the controversies

between the Bishops and other of his Clergy, and the Judges of the Laws of

England, and to take Order, that for the good and quiet of his Subjects, that

the one do not encroach upon the other, but that every of them hold themselves

within their natural and local jurisdiction, without encroachment or usur-

pation the one upon the other. And he said, that the onely question then to

be disputed was, If a Parson, or a Vicar of a Parish, sueth one of his Parish

in the Spiritual Court for Tythes in kinde, or Lay-fee, and the Defendant

alledgeth a custom or prescription De modo Decimandi, if that custom or

prescription, De modo Decimandi, shall be tryed and determined before the

Judg Ecclesiastical where the Suit is begun; or a Prohibition Lyeth, to try the

same by the common Law. And the King directed, that we who were Judges

should declare the reasons and causes of our proceedings, and that he would

hear the authorities in the Law which we had to warrant our proceedings in

granting of Prohibition in cases of Modo Decimandi. But the Archbishop of

Canterbury kneeled before the King, and desired him, that he would hear

him and others who are provided to speak in the case for the good of the

Church of England: and the Archbishop himself inveighed much against two

things:

1. That a Modus Decimandi should be | tryed by a Jury, because that they

themselves claim more or less modum Decimandi; so as in effect they were

Tryors in their own cause, or in the like cases. 2. He inveighed much the

precipitate and hasty Tryals by Juries: and after him Doctor Bennet, Judg of

the Prerogative Court, made a large Invection against Prohibitions in Causis

ecclesiasticis:

and that both Jurisdictions as well ecclesiastical as temporal, were

derived from the King; and all that which he spake out of the Book which

Dr. Ridley hath lately published, I omit as impertinent: and he made ﬁve

Reasons, why they should try Modum Decimandi.

And the ﬁrst and principal Reason was out of the Register, fo. 58. quia non

est consonans rationi, quod cognitio accessarii in Curia Christianitatis impediatur

ubi cognitio Causae principalis ad forum Ecclesiasticum noscitur pertinere.

And

2. [Ed.: in ecclesiastical causes.]

3. [Ed.: because it is not consonant with reason that the cognizance of an incidental matter in court

[38]

The Case de Modo Decimandi 507

the principal cause is Right of Tythes, and the Plea of Modo Decimandi sounds

in satisfaction of Tythes; and therefore the Conusance of the original cause,

(scil.) the Right of Tythes appertaining to them, the Conusance of the bar of

Tythes, which he said was but the accessary, and as it were dependant upon

it, appertained also to them. And whereas it is said in the Bishop of Winchesters

Case, in the second part of my Reports, and 8 Edw. 4. 14. that they would

not accept of any Plea in discharge of Tythes in the Spiritual Court, he said,

that they would allow such Pleas in the Spiritual Court, and commonly had

allowed them; and therefore he said, that that was the Mystery of iniquity

founded upon a false and feigned foundation, and humbly desired the ref-

ormation of that Error, for they would allow Modum Decimandi being duly

proved before them.

2. There was great inconveniency, that Lay-men should be Tryers of their

own Customs, if a Modus Decimandi should be Tryed by Jurors; for they shall

be upon the matter Jurors in their own cause.

3. That the custom of Modo Decimandi is of Ecclesiastical Jurisdiction and

Conusance, for it is a manner of Tything, and all manner of Tything belongs

to Ecclesiastical Jurisdiction: and therefore he said, that the Judges, in their

Answer to certain Objections made by the Archbishop of Canterbury, have

confessed, that suit may be had in Spiritual Courts pro modo Decimandi; and

therefore the same is of Ecclesiastical Conusance; and by consequence it shall

be tryed before the Ecclesiastical Judges: for if the Right of Tythes be of Ec-

clesiastical Conusance, and the satisfaction also for them of the same Juris-

diction, the same shall be tryed in the Ecclesiastical Court.

4. In the Prohibitions of Modus Decimandi averment is taken, That although

the Plaintiff in the Prohibition offereth to prove Modum Decimandi, the Ec-

clesiastical Court doth refuse to allow of it, which was confessed to be a good

cause of Prohibition: But he said, they would allow the Plea De Modo De-

cimandi in the Spiritual Court, and therefore cessante causa cessabit & effectus,

and no Prohibition shall lie in the Case.

5. He said, that he can shew many consultations granted in the cause De

Modo Decimandi, and a Consultation is of greater force then a Prohibition;

Christian should be hindered where it is known that the cognizance of the principal cause belongs to the

ecclesiastical jurisdiction.]

4. [Ed.: when the cause ceases, the effect ceases also,]

Part Thirteen of the Reports508

for Consultation, as the word imports, is made with the Court with consul-

tation and deliberation. And Bacon, Solicitor-General, being (as it is said)

assigned with the Clergy by the King, argued before the King, and in effect

said less then Doctor Bennet said before: but he vouched 1 Ric. 3. 4. the

Opinion of Hussey, when the Original ought to begin in the Spiritual Court,

and afterwards a | thing cometh in issue which is tryable in our Law, yet it

shall be tryed by their Law: As if a man sueth for a Horse devised to him,

and the Defendant saith, that the Devisor gave to him the said Horse, the

same shall be tryed there. And the Register 57 and 58. If a man be condemned

in Expences in the Spiritual Court for laying violent hands upon a Clark, and

afterwards the Defendant pays the costs, and gets an Acquittance, and yet the

Plaintiff sueth him against his Acquittance for the Costs, and he obtains a

Prohibition, for that Acquittances and Deeds are to be determined in our Law,

he shall have a Consultation, because that the principal belongeth to them.

38 Edw. 3. 5. Right of Tythes between two spiritual persons shall be determined

in the Ecclesiastical Court. And 38 Edw. 3. 6. where the Right of Tythes comes

in debate between two spiritual persons, the one claiming the Tythes as of

common Right within his Parish, and the other claiming to be discharged by

real composition, the Ecclesiastical Court shall have Jurisdiction of it.

And the said Judges made humble suit to the King, That for as much as

they perceived that the King in his Princely Wisdom did detest Innovations

and Novelties, that he would vouchsafe to suffer them with his gracious favor,

to inform him of one Innovation and Novelty which they conceived would

tend to the hinderance of the good administration and execution of Justice

within his Realm.

Your Majesty, for the great zeal which you have to Justice, and for the due

administration thereof, hath constituted and made fourteen Judges, to whom

you have committed not onely the administration of Ordinary Justice of the

Realm, but crimina laesae Majestatis,

touching your Royal person, for the

legal proceeding: also in Parliament we are called by Writ, to give to your

Majesty and to the Lords of the Parliament our advice and counsel, when we

are required: We two chief Justices sit in the Star-Chamber, and are oftentimes

called into the Chancery, Court of Wards, and other High Courts of Justice:

we in our Circuits do visit twice in the year your Realm, and execute Justice

5. [Ed.: (jurisdiction over) the crime of le`se-majeste´ (treason).]

[39]

The Case de Modo Decimandi 509

according to your Laws: and if we who are your publique Judges receive any

diminution of such reverence and respect in our places, which our predecessors

had, we shall not be able to do you such acceptable service as they did, without

having such reverence and respect as Judges ought to have. The state of this

Question is not in statu deliberativo,

but in statu judiciali;

it is not disputed

de bono,

but de vero, non de Lege ﬁenda, sed de Lege lata;

not to frame or

devise new Laws, but to inform your Majesty what your Law of England is:

and therefore it was never seen before, that when the Question is of the Law,

that your Judges of the Law have been made Disputants with him who is

inferior to them, who day by day plead before them at their several Courts

at Westminster; and although we are not afraid to dispute with Mr. Bennet

and Mr. Bacon, yet this example being primae impressionis,

and your Majesty

detesting Novelties and innovations, we leave it to your Grace and Princely

consideration, whether your Majesty will permit our answering in hoc statu

judiciali,

upon your publique Judges of the Realm? But in Obedience to

your Majesties command, We, with your Majesties gracious favor, in most

humble manner will inform your Majesty touching the said Question, which

we, and our predecessors before us, have oftentimes adjudged upon judicial

proceedings in your Courts of Justice at Westminster: which Judgments cannot

be reversed or examined for any Error in Law, if | not by a Writ of Error in

a more high and supream Court of Justice, upon legal and judicialproceedings:

and that is the ancient Law of England, as appeareth by the Statute of 4 Hen.

4. cap. 22.

And we being commanded to proceed, all that which was said by us, the

Judges, was to this effect, That the Tryal De Modo Decimandi ought to be by

the Common Law by a Jury of twelve men, it appeareth in three manners:

First, by the Common Law: Secondly, by Acts of Parliament: And lastly, by

inﬁnite judgments and judicial proceedings long times past without any im-

peachment or interruption.

But ﬁrst it is to see, What is a Modus Decimandi? Modus Decimandi is,

6. [Ed.: in a deliberative state,]

7. [Ed.: in a judicial state;]

8. [Ed.: for the good of it;]

9. [Ed.: for truth, not to make Law but to lay down what it is;]

10. [Ed.: [a Case] of ﬁrst impression,]

11. [Ed.: in this judicial state,]

[40]

Part Thirteen of the Reports510

when Lands, Tenements, or Hereditaments have been given to the Parson and

his successors, or an annual certain sum, or other proﬁt, always, time out of

minde, to the Parson and his successors, in full satisfaction and discharge of

all the Tythes in kinde in such a place: and such manner of Tything is now

confessed by the other party to be a good bar of the Tythes in kinde.

1. That Modus Decimandi shall be tryed by the Common Law, that is, that

all satisfactions given in discharge of Tythes shall be tryed by the Common

Law: and therefore put that which is the most common case, That the Lord

of the Mannor of Dale prescribes to give to the Parson 40s. yearly, in full

satisfaction and discharge of all Tythes growing and renewing within the Man-

nor of Dale, at the Feast of Easter: The Parson sueth the Lord of the Mannor

of Dale for his Tythes of his Mannor in kinde, and he in Bar prescribes in

manner ut supra:

The Question is, if the Lord of the Mannor of Dale may

upon that have a Prohibition, for if the Prohibition lyeth, then the Spiritual

Court ought not to try it; for the end of the Prohibition is, That they do not

try that which belongs to the Tryal of the Common Law; the words of the

Prohibition being, that they would draw the same ad aliud examen.

First, the Law of England is divided into Common-Law, Statute-Law, and

Customs of England: and therefore the Customs of England are to be tryed

by the Tryal which the Law of England doth appoint.

Secondly, Prescriptions by the Law of the Holy Church, and by the Com-

mon Law, differ in the times of limitation; and therefore Prescriptions and

Customs of England shall be tryed by the Common Law. See 20 Hen. 6. fo.

17. 19 E. 3. Jurisdiction 28. The Bishop of Winchester brought a Writ of

Annuity against the Archdeacon of Surry, and declared, how that he and his

successors were seised by the hands of the Defendant by title of Prescription,

and the Defendant demanded Judgment, if the Court would hold Jurisdiction

being between spiritual persons, &c. Stone Justice, Be assured, that upon title

of prescription we will here hold Jurisdiction; and upon that, Wilby chief

Justice gave the Rule, Answer: Upon which it follows, that if a Modus De-

cimandi, which is an annual sum for Tythes by prescription, comes in debate

between spiritual persons, that the same shall be tryed here: For the Rule of

the Book is general, (scil.) upon title of prescription, we will hold Jurisdiction,

12. [Ed.: as above:]

13. [Ed.: into another forum.]

The Case de Modo Decimandi 511

and that is fortiﬁed with an Asseveration, Know assuredly; as if he should say,

that it is so certain, that it is without question. 32 Edw. 3. Jurisd. 26. There

was a Vicar who had onely Tythes and Oblations, and an Abbot claimed an

Annuity or Pension of him by prescription: and it was adjudged, that the same

| prescription, although it was betwixt spiritual persons, should be tryed by

the Common Law: Vide 22 Hen. 6. 46 and 47. A prescription, that an Abby

time out of minde had found a Chaplain in his Chappel to say Divine Service,

and to minister Sacraments, tryed at the Common Law.

3. See the Record of 25 Hen. 3. cited in the case of Modus Decimandi before:

and see Register fo. 38. when Lands are given in satisfaction and discharge of

Tythes.

4. See the Statute of Circumspecte agatis, Decimae debitae seu consuetae,

which proves that Tythes in kinde, and a Modus by custom, &c.

5. 8 Edw. 4. 14. and Fitz. N. B. 41 g. A Prohibition lieth for Lands given

in discharge of Tythes. 28 Edw. 3. 97. a. There Suit was for Tythes, and a

Prohibition lieth, and so abridged by the Book, which of necessity ought to

be upon matter De Modo Decimandi, or discharge.

7 Edw. 6. 79. If Tythes are sold for mony, by the sale the things spiritual

are made temporal, and so in the case De Modo Decimandi, 42 Edw. 3. 12.

agrees.

7. 22 Edw. 3. 2. Because an Appropriation is mixt with the Temporalty,

(scil.) the King’s Letters Patents, the same ought to be shewed how, &c. oth-

erwise of that which is meer Temporal: and so it is of real composition, in

which the Patron ought to joyn: Vide 11 Hen. 4. 85. Composition by writing,

that the one shall have the Tythes, and the other shall have mony, the Suit

shall be at the Common Law.

Secondly, By Acts of Parliament.

1. The said Act of Circumspecte agatis, which giveth power to the Eccle-

siastical Judg to sue for Tythes due ﬁrst in kinde, or by custom, i.e. Modus

Decimandi: so as by authority of that Act, although that the yearly sum soun-

deth in the Temporalty, which was payd by Custom in discharge of Tythes,

yet because the same cometh in the place of Tythes, and by constitution, the

Tythes are changed into mony, and the Parson hath not any remedy for the

14. [Ed.: Tithes due or accustomed,]

15. [Ed.: The 1659 edition misnumbers this and the next paragraph “7” and “8.”]

[41]

Part Thirteen of the Reports512

same, which is the Modus Decimandi at the Common Law; for that cause the

Act is clear, that the same was a doubt at the Common Law: And the Statute

of Articuli Cleri, cap. 1. If corporal pennance be changed in poenam pecuni-

ariam,

for that pain Suit lieth in the Spiritual Court: For see Mich. 8 Hen.

3. Rot. 6. in Thesaur’. A Prohibition lieth pro eo quod Rector de Chesterton

exigit de Hagone de Logis de certa portione pro Decimis Molendinarum;

so as

it appeareth, it was a doubt before the said Statute, if Suit lay in the Spiritual

Court de Modo Decimandi. And by the Statute of 27 Hen. 8. cap. 20. it is

provided and enacted, That every of the subjects of this Realm, according to

the Ecclesiastical Laws of the Church, and after the laudable usages and cus-

toms of the Parish, &c. shall yield and pay his Tythes, Offerings, and other

duties: and that for subtraction of any of the said Tythes, offerings, or other

duties, the Parson, &c. may by due Proces of the Kings Ecclesiastical Laws,

convent the person offending before a competent Judg, having authority to

hear and determine the Right of Tythes, and also to compel him to yeild the

duties, i.e. as well Modus Decimandi, by laudable usage or Custom of the

Parish, as Tythes in kinde: and with that in effect agrees the Statute of 32 Hen.

8. cap. 7. By the Statute of 2 Edw. 3. cap. 13. it is enacted, That every of the

Kings Subjects shall from henceforth, truly and justly, without fraud or guile,

divide, &c. and pay all manner of their predial Tythes in their proper kinde,

as they rise | and happen in such manner and form as they have been of Right

yielded and payd within forty years next before the making of this Act, or of

Right and Custom ought to have been payd.

And after in the same Act there is this clause and Proviso, Provided always,

and be it enacted, That no person shall be sued, or otherwise compelled to

yield, give, or pay any manner of Tythes for any Mannors, Lands, Tenements,

or Hereditaments, which by the Laws and Statutes of this Realm, or by any

priviledg or prescription, are not chargeable with the payment of any such

Tythes, or that be discharged by any compositions real. And afterwards, there

is another Branch in the said Act; And be it further enacted, That if any person

do subtract or withdraw any manner of Tythes, Obventions, Proﬁts, Com-

16. [Ed.: into pecuniary penalty.]

17. [Ed.: forasmuch as the rector of Chesterton demanded a certain portion from Hugh de Logis for

tithes of mills.]

[42]

The Case de Modo Decimandi 513

modities, or other Duties before mentioned (which extends to Custom of

Tything, i.e. Modus Decimandi, mentioned before in the Act, &c.) that then

the party so substracting, &c. may be convented and sued in the Kings Ec-

clesiastical Court, &c. And upon the said Branch, which is the Negative, That

no person shall be sued for any Tythes of any Lands which are not chargeable

with the payment of such Tythes by any Law, Statute, Priviledg, Prescription,

or Real Composition. And always when an Act of Parliament commands or

prohibits any Court, be it Temporal or Spiritual, to do any thing temporal

or spiritual, if the Statute be not obeyed, a Prohibition lieth: as upon the

Statute de articulis super Cartas, ca. 4. Quod Communia Placita non tenentur

in Scaccario:

a Prohibition lieth to the Court of Exchequer, if the Barons

hold a Common-Plea there, as appeareth in the Register 187. b. So upon the

Statute of West. 2. Quod inquisitiones quae magnae sunt examinationis non

capiantur in patria;

a Prohibition lieth to the Justices of Nisi Prius. So upon

the Statute of Articuli super Cartas, cap. 7. Quod Constabularius Castr. Dover,

non teneat Placitum forinsecum quod non tangit Custodiam Castri,

185.

So upon the same Statute, cap. 3. Quod Senescallus et Mariscallus non

teneant Placita de libero tenemento, de debito, conventione,

&c. a Prohibition

lieth, 185. And yet by none of these Statutes, no Prohibition or Supersedeas

is given by express words of the Statute. So upon the Statutes 13 Ric. 2. cap.

3. 15 Ric. 2. cap. 2. 2 Hen. 4. cap. 11. by which it is provided, That Admirals

do not meddle with any thing done within the Realm, but onely with things

done upon the Seas, &c. a Prohibition lieth to the Court of Admiralty.

So upon the Statute of West. 2. cap. 43. against Hospitalers and Templers,

if they do against the same Statute, Regist. 39 a. So upon the Statute de Pro-

hibitione regia, Ne laici ad citationem Episcopi conveniant ad recognitionem fa-

18. [Ed.: That common pleas should not be held in the Exchequer.]

19. [Ed.: That inquisitions which require great examination should not be taken in the country.]

20. [Ed.: That the constable of Dover Castle should not hold a foreign plea which does not touch the

keeping of the castle.]

21. See Lib. Entr. 450, a Prohibition was upon the Statute that one shall not maintain; and so upon

every penal Law. See F. N. B. 39. b. Prohibition to the Common Pleas upon the Stat. of Magna Charta

that they do not proceed in a Writ of Praecipe in Capite, where the Land is not holden of the King. 1 &

2 Eliz. Dyer 170, 171. Prohibition upon the Statute of barrenes, and pettit is onely prohibited by implication.

22. [Ed.: That the steward and marshal should not hold pleas of freehold, debt, covenant, etc.]

23. [Ed.: Writ from a superior court to an inferior court to stay proceedings.]

Part Thirteen of the Reports514

ciend. vel Sacrament. praestanda nisi in casubus matrimonialibus & Testamen-

tariis,

a Prohibition lieth. Regist. 36. b. And so upon the Statute of 2 Hen.

5. cap. 3. at what time the Libel is grantable by the Law, that it be granted

and delivered to the party without difﬁculty, if the Ecclesiastical Judg, when

the cause which depends before him is meer Ecclesiastical, denyeth the Libel,

a Prohibition lieth, because that he doth is against the Statute; and yet no

Prohibition by any express words is given by the Statute. And upon the same

Statute the Case was in 4 Edw. 4. 37. Pierce Peckam took Letters of Admin-

istration of the Goods of Rose Brown of the Bishop of London, and afterwards

T. T. sued to Thomas Archbishop of Canterbury, That because the said Rose

Brown had Goods within his Diocess, he prayed Letters of Administration

to be committed to him, upon which the Bishop granted him Letters of Ad-

ministration, and afterwards | T. T. libelled in the Spiritual Court of the Arch-

bishop in the Arches against Pierce Peckam, to whom the Bishop of London

had committed Letters of Administration to repeal the same: and Pierce

Peckam, according to the said Statute, prayed a Copy of the Libel exhibited

against him, and could not have it, and thereupon he sued a Prohibition, and

upon that an Attachment: And there Catesby Serjeant moved the Court, that

a Prohibition did not lie, for two causes: 1. That the Statute gives that the

Libel shall be delivered, but doth not say that the Plea in the Spiritual Court

shall surcease by Prohibition. 2. The Statute is not intended of matter meer

spiritual, as that case is, to try the Prerogative and the Liberty of the Archbishop

of Canterbury and the Bishop of London, in committing of Administrations.

And there Danby Chief Justice, If you will not deliver the Libel according to

the Statute, you do wrong, which wrong is a temporal matter, and punishable

at the Common Law; and therefore in this case the party shall have a special

Prohibition out of this Court, reciting the matter, and the Statute aforesaid,

commanding them to surcease, until he had the Copy of the Libel delivered

unto him: which case is a stronger case then the case at the Bar, for that Statute

is in the Afﬁrmative, and the said Act of 2 Edw. 6. cap. 13. is in the Negative,

scil. That no Suit shall be for any Tythes of any Land in kinde where there

is Modus Decimandi, for that is the effect of the said Act, as to that point.

And always after the said Act, in every Term in the whole Reigns of King

24. [Ed.: concerning the royal prohibition, that laymen be not convented at the citation of a bishop

to make recognitions or take oaths except in matrimonial and testamentary causes,]

[43]

The Case de Modo Decimandi 515

Edward the sixth, Queen Mary, and Queen Elizabeth, until this day, Pro-

hibitions have been granted in Causa Modi Decimandi, and Judgments given

upon many of them, and all the same without question made to the contrary.

And accordingly all the Judges resolved in 7 Edw. 6. Dyer 79. Et contemporanea

expositio est optima & fortissima in lege, & a communi observantia non est re-

cedendum, & minime mutanda sunt quae certam habuerunt interpretationem.

And as to the ﬁrst Objection, That the Plea of Modus Decimandi is but

accessary unto the Right of Tythes; it was resolved, that the same was of no

force, for three causes:

1. In this case, admitting that there is a Modus Decimandi, then by the

Custom, and by the Act of 2 Edw. 6. and the other Acts, the Tythes in kinde

are extinct and discharged; for one and the same Land cannot be subject to

two manner of Tythes, but the Modus Decimandi is all the Tythe with which

the Land is chargeable: As if a Horse or other thing valuable be given in

satisfaction of the Duty, the Duty is extinct and gone: and it shall be intended,

that the Modus Decimandi began at the ﬁrst by real composition, by which

the Lands were discharged of the Tythes, and a yearly sum in satisfaction of

them assigned to the Parson, &c. So as in this case there is neither Principal

nor Accessary, but an Identity of the same thing.

2. The Statute of 2 Edw. 6. being a Prohibition in it self, and that in the

Negative, If the Ecclesiastical Judg doth against it, a Prohibition lieth, as it

appeareth clearly before.

3. Although that the Rule be general, yet it appeareth by the Register it

self, that a Modus Decimandi is out of it; for there is a Prohibition in Causa

Modi Decimandi, when Lands are given in satisfaction of the Tythes.

As to the second Objection, it was answered and resolved, That that was

from, or out of the Question; for status Quaestionis non est | deliberativus sed

judicialis,

what was ﬁt and convenient, but what the Law is: and yet it was

said, It shall be more inconvenient to have an Ecclesiastical Judg, who is not

sworn to do Justice, to give sentence in a case between a man of the Clergy

and a Lay-man, then for twelve men sworn to give their Verdict upon hearing

of Witnesses viva voce,

before an indifferent Judg, who is sworn to do Right

25. [Ed.: And contemporary exposition is the best and strongest in Law. and one should not go back

on common observation; and things which have had a certain interpretation are not to be changed.]

26. [Ed.: the state of the question is not deliberative but judicial.]

27. [Ed.: orally (Literally, with living voice).]

[44]

Part Thirteen of the Reports516

and Justice to both parties: But convenient or inconvenient is not the Ques-

tion: Also they have in the Spiritual Court such inﬁnite exceptions to Wit-

nesses, that it is at the Will of the Judg with which party he shall give his

sentence.

As to the third Objection, it was answered and resolved: First, That satisfactio

pecuniaria

of it self is Temporal: But for as much as the Parson hath not

remedy pro Modo Decimandi at the Common Law, the Parson by force of the

Acts cited before might sue pro Modo Decimandi in the Ecclesiastical Court:

but that doth not prove, That if he sueth for Tythes in kinde, which are utterly

extinct, and the Land discharged of them, that upon the Plea de Modo De-

cimandi, that a Prohibition should not lie, for that without all question ap-

peareth by all that which before hath been said, that a Prohibition doth lie.

See also 12 Hen. 7. 24 b. Where the original cause is Spiritual, and they proceed

upon a Temporal, a Prohibition lieth. See 39 Edw. 3. 22 Edw. 4. Consultation,

That right of Tythes which is meerly ecclesiastical, yet if the question ariseth

of the limits of a Parish, a Prohibition lieth: and this case of the limits of a

Parish was granted by the Lord Chancellor, and not denyed by the other side.

As to the Objection, That an Averment is taken of the refusal of the Plea

de Modo Decimandi; it was answered and resolved, That the same is of no

force for divers causes:

1. It is onely to Enforce the contempt.

2. If the Spiritual Court ought to have the Tryal de Modo Decimandi, then

the refusal of acceptance of such a Plea should give cause of Appeal, and not

of Prohibition: as if an Excommunication, Divorce, Heresie, Simony, &c. be

pleaded there, and the Plea refused, the same gives no cause of Prohibition:

as, if they deny any Plea, meer spiritual Appeal, and no Prohibition lieth.

3. From the beginning of the Law, no Issue was ever taken upon the refusal

of the plea in Causa Modi Decimandi, nor any Consultation ever granted to

them, because they did not refuse, but allowed the plea.

4. The refusal is no part of the matter issuable or material in the plea; for

the same is no part of the suggestion which onely is the substance of the plea:

and therefore the Modus Decimandi is proved by two Witnesses, according to

the Statute of 2 Edw. 6. cap. 13. and not the refusal, which proveth, that the

Modus Decimandi is onely the matter of the suggestion, and not the refusal.

28. [Ed.: pecuniary satisfaction.]

The Case de Modo Decimandi 517

5. All the said ﬁve matters of Discharge of Tythes mentioned in the said

Branch of the Act of 2 Edw. 6. being contained within a suggestion, ought

to be proved by two Witnesses, and so have been always from the time of the

making of the said Act; and therefore the Statute of 2 Edw. 6. clearly intended,

that Prohibitions should be granted in such causes.

6. Although that they would allow bona ﬁde de Modo Decimandi,

without

refusal, yet if the Parson sueth there for Tythes in kinde, when the Modus

is proved, the same being expressly prohibited by the | Act of 2 Edw. 6. a

Prohibition lieth, although the Modus be spiritual, as appeareth by the said

Book of 4 Edw. 4. 37. and other the cases aforesaid.

And afterwards, in the third day of debate of this case before his gracious

Majesty, Dr. Bennet and Dr. Martin had reserved divers consultations granted

in Causa Modi Decimandi, thinking that those would make a great impression

in the Opinion of the King: and thereupon they said, That Consultations

were the Judgments of Courts had upon deliberation, whereas Prohibitions

were onely granted upon surmises: And they shewed four Presidents:

One, where three joyntly sued a Prohibition in the case of Modo Decimandi,

and the Consultation saith, Pro eo quod suggestio materiaque in eodem contenta

minus sufﬁciens in Lege existit, &c.

2. Another in Causa Modi Decimandi, to be payd to the Parson or Vicar.

3. Where the Parson sued for Tythes in kinde, and the Defendant alleged

Modus Decimandi to be payd to the Vicar.

The fourth, where the Parson libelled for Tythe Wool, and the defendant

alleged a custom, to reap corn, and to make it into sheaves, and to set forth

the tenth sheaf at his charges, and likewise of Hay, to sever it from the nine

cocks at his charge, in full satisfaction of the Tythes of the Corn, Hay, and

Wool.

To which I answered, and humbly desired the Kings Majesty to observe

that these have been reserved for the last, and center point of their proof: And

by them your Majesty shall observe these things:

1. That the Kings Courts do them Justice, when with their consciences and

oaths they can.

29. [Ed.: an agreed scheme for tithing, in good faith.]

30. [Ed.: scheme.]

31. [Ed.: Forasmuch as the suggestion and the matter therein contained is insufﬁcient in Law, etc.]

[45]

Part Thirteen of the Reports518

2. That all the said Cases are clear in the Judgment of those who are learned

in the Laws, that Consultation ought by the Law to be granted.

For as unto the ﬁrst president, the case upon their own shewing appeareth

to be, Three persons joyned in one Prohibition for three several parcels of

Land, each of which had a several manner of Tything; and for that cause they

could not joyn, when their interests were several; and therefore a Consultation

was granted.

As to the second president, The manner of Tything was alledged to be payd

to the Parson or Vicar, which was altogether uncertain.

As to the third president, The Modus never came in debate, but whether

the Tythes did belong to the Parson or Vicar? which being betwixt two spiritual

persons, the Ecclesiastical Court shall have Jurisdiction: and therewith agreeth

38 Edw. 3. 6. cited before by Bacon: and also there the Prior was of the Order

of the Cistertians; for if the Tythes originally belonged to the Parson, any

recompence for them shall not bar the Parson.

As to the last president, the same was upon the matter of a Custom of a

Modus Decimandi for Wool: for to pay the Tythe of Corn or Hay in kinde,

in satisfaction of Corn, Hay and Wool, cannot be a satisfaction for the Wool;

for the other two were due of common right: And all this Appeareth in the

Consultations themselves, which they shew, but understand not. To which

the Bishop of London said, that the words of the Consultation were, Quod

suggestio praedicta materiaq; in eadem contenta minus sufﬁciens in Lege existet,

&c.

so as materia cannot be referred to form, and therefore it ought to extend

to the Modus Decimandi.

| To which I answered, That when the matter is insufﬁciently or uncertainly

alleged, the matter it self faileth; for matter ought to be alleged in a good

sentence: and although the matter be in truth sufﬁcient, yet if it were insuf-

ﬁciently alleged, the plea wanteth matter. And the Lord Treasurer said openly

to them, that he admired that they would alledg such things which made more

against them than any thing which had been said. And when the King relied

upon the said Prohibition in the Register, when Land is given in discharge

of Tythes, the Lord Chancellor said, that that was not like to this case; for

there, by the gift of the Land in discharge of Tythes, the Tythes were actually

discharged: but in the case De Modo Decimandi, an annual sum is payd for

32. [Ed.: That the aforesaid suggestion and the matter therein contained is insufﬁcient in Law, etc.]

[46]

The Case de Modo Decimandi 519

the Tythes, and the Land remains charged with the Tythes, but ought to be

discharged by plea de Modo Decimandi: All which was utterly denyed by me;

for the Land was as absolutely discharged of the Tythes in casu de Modo De-

cimandi, when an annual sum ought to be payd, as where Land is given: for

all the Records and presidents of Prohibition in such cases are, That such a

sum had been always, &c. payd in plenam contentationem, satisfactionem &

exonerationem omnium & singularium Decimarum, &c.

And although that

the sum be not payd, yet the Parson cannot sue for Tythes in kind, but for

the mony: for, as it hath been said before, the Custom and the said Acts of

Parliament (where there is a lawful manner of Tything) hath discharged the

Lands from Tythes in kinde, and prohibited, that no suit shall be for them.

And although that now (as it hath been said) the Parsons, &c. may sue in the

Spiritual Court pro Modo Decimandi, yet without question, at the ﬁrst, the

annual payment of mony was as Temporal, as annual proﬁts of Lands were:

All which the King heard with much patience. And the Lord Chancellor an-

swered not to that which I had answered him in, &c.

And after that his most excellent Majesty, with all his Councel, had for

three days together heard the allegations on both sides, He said, That he would

maintain the Law of England, and that his Judges should have as great respect

from all his Subjects as their predecessors had had: And for the matter, he

said, That for any thing that had been said on the part of the Clergy, that he

was not satisﬁed: and advised us his Judges to confer amongst our selves, and

that nothing be encroached upon the Ecclesiastical Jurisdiction, and that they

keep themselves within their lawful Jurisdiction, without unjust vexation and

molestation done to his Subjects, and without delay or hindering of Justice.

And this was the end of these three days consultations.

And note, That Dr. Bennet in his discourse inveighed much against the

opinion in 8 Edw. 4. 14. and in my Reports in Wrights Case, That the Eccle-

siastical Judg would not allow a Modus Decimandi; and said, That that was

the mystery of iniquity, and that they would allow it. And the King asked,

for what cause it was so said in the said Books? To which I answered, that it

appeareth in Linwood, who was Dean of the Arches, and of profound know-

ledg in the Canon and Civil Law, and who wrote in the Reign of King Henry

the sixth, a little before the said Case in 8 Edw. 4. in his title de Decimis, cap.

33. [Ed.: in full contentment, satisfaction, and discharge of and singular the tithes, etc.]

Part Thirteen of the Reports520

Quoniam propter, &c. fo. 139 b. Quod Decimae solvantur, &c. absque ulla dim-

inutione: and in the gloss it is said, Quod Consuetudo de non Decimando, aut

de non bene Decimando non valet.

And that being written by a great Canonist

of England, was the cause of the said saying in 8 Edw. 4. that they would not

allow the said plea de Modo Decimandi; for always the Modus | Decimandi is

lesse in value then the Tithes in specie, and then the same is against their

Canon; Quod decimae solvantur absque diminutione, & quod consuetudo de non

plene Decimando non valet.

And it seemed to the King, that that Book was

a good Cause for them in the time of King Edward the fourth to say, as they

had said; but I said, That I did not relie upon that, but upon the grounds

aforesaid, (scil.) The Common Law, Statute-Laws, and the continuall and

inﬁnite judgements and judiciall proceedings, and that if any Canon or Con-

stitution be against the same, such Canon and Constitution, &c. is void by

the Statute of 25 Hen. 8. Cap. 19. which see and note: For all Canons, Con-

stitutions, &c. against the Prerogative of the King, the common Laws, Statutes,

or Customs of the Realm are void.

Lastly, the King said; That the high Commission ought not to meddle with

any thing but that which is enormious and exorbitant, and cannot permit the

ordinary Proces of the Ecclesiasticall Law; and which the same Law cannot

punish. And that was the cause of the institution of the same Commission,

and therefore, although every offence, ex vi termini,

is enormious, yet in the

Statute it is to be intended of such an offence, is extra omnem normam,

Heresie, Schisme, Incest, and the like great offences: For the King said, That

it was not reason that the high Commission should have conusance of common

offences, but to leave them to Ordinaries, scil. because, that the party cannot

have any appeal in case the high Commission shall determine of it. And the

King thought that two high Commissions, for either Province one, should

be sufﬁcient for all England, and no more.

34. [Ed.: and in the Gloss it is said that a custom of not tithing, or of not tithing in full, does not

avail.]

35. [Ed.: That tithes be paid, etc. without any dimunition, and that a custom of not tithing, or of not

tithing in full, does not avail.]

36. [Ed.: by force of the term,]

37. [Ed.: outside every rule,]

[47]

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