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Under God and the Law - Joyce Lee Malcom, The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, vol. 1 
The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, 2 vols, ed. Joyce Lee Malcolm (Indianapolis: Liberty Fund, 1999). Vol. 1.
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Under God and the Law
Edward Coke, The Second Part of the Reports
Sir Edward Coke, 1552-1634
The Second Part of the
Her Majesty’s Attorney-General,
Divers Matters in Law, with great and mature Consideration resolv’d and adjudg’d, which were never resolv’d or adjudg’d 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.
With References to all the BOOKS of the COMMON LAW, as well Ancient as Modern.
Videte quod non mihi soli laboravi, sed omnibus exquirentibus scientiam.
Ecclesiasticus, Cap. 24.
Lex est commune praeceptum, virorum prudentium consultum, delictorum quae sponte vel ignorantia contrahuntur, communis reipublicae sponsio.
Papian, Lib. 1. Definit’.
Lex dicitur a ligando, quia o bligat; vel dicitur a legendo, quia publice legatur.
Cum dico legem, a me dici nihil aliud intelligi volo quam imperium; sine quo domus ulla, nec civitas, nec gens, nec ho minum universum genus stare, nec rerum natura o mnis, nec ipse mundus potest.
Cic. Lib. 1. de Legibus.
Thomas Wight. 1602.
The feisty and brilliant Sir Edward Coke was probably the greatest champion of the common law. His extraordinary career spanned three reigns: he served as speaker of the House of Commons and later as attorney-general under Queen Elizabeth; as chief justice of the common pleas and chief justice of the King’s Bench under James I; and was an outspoken member of Parliament under James and Charles I. His role in a series of cases that limited the powers of the king and church courts led to his dismissal from the bench in 1616. Coke remained active in Parliament, leading the effort for passage of the Protestation of 1621 and the Petition of Right in 1628.
Coke’s renowned Reports of cases he heard argued during the reigns of Elizabeth and James began to appear in 1600 and ran to thirteen volumes, the last two published by Parliament after hisdeath. They are the most famous reports ever written on the common law and appeared in numerous editions, abridgments, and translations. The prefaces were in Latin and English, the main texts in Norman French with the pleadings in Latin. In the prefaces Coke laid out his defense of the antiquity and superiority of the common law and the high court of parliament as well as the independence of the judiciary. He exalted claims to individual liberties derived from a constitution more ancient than Magna Carta and laid a basis for both the British and American legal systems. Notwithstanding attacks on the accuracy of his versions of cases, his impact was enormous. The preface to the second volume of Reports, reprinted here, first appeared in 1602 while Coke was attorney-general. The original title page was entirely in Latin.
To the learned Reader.
There are (sayth Euripides) three vertues worthe our meditation; To honour God, our Parents who begat us, καὶ νόμους τε κοινοὺς Ἑλλάδος and these 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 Parentes, yeeld due reverence and obedience to the Common Lawes of England: for all Lawes (I speake of human) 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 defende 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 Recordes 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 human) so necessarie for all estates, and for all causes, concerning goodes, landes, or life, the common Lawes of England. If the beautie of other Countries be faded and wasted with bloudie warres, thank 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 standes for Law & Reason, and where upon conceit of mislike, men are suddenly poisoned, or otherwise murthered, and never called to aunswere; Praise God for the Justice of thy gracious Soveraigne, who (to the worlde’s admiration), governeth her people by God’s goodnesse in peace and prosperity by these Lawes, and punisheth not the greatest offendor, no, though his offence be crimen laese Majestatis, Treason 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 the Law, and doe injustice, than Displease the King’s 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 auncient Lawes, is, that for no commaundement under the great or privie Seale, writtes or letters, common right be disturbed or delayed.1 And if any such commaundement (upon untrue surmises) should come, that the Justices of her Lawes should not therefore cease to doe right in any point.2 And this agreeth with the auncient Law of England, declared by the great Charter, and spoken in the person of the king; Nulli vendemus, nulli negabimus, aut differemus Justiciam vel Rectum.3
If the auncient 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 incouragement, cast thine eye upon the Sages of the Law, that have been 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 goodnes of God hath obtained, a greater blessing and ornament than any other profession, to their familie 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 hetherto I never saw any man of a loose and lawles 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 oppinions amongest the professors of the Lawes, contende 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 trueth, the greatest questions arrise not upon any of the Rules of the Common Law, but sometimes uppon Conveyances and Instruments made by men unlearned; Many times upon Willes intricately, absurdly, and repugnantly set downe, by Parsons, Scriveners, and such other Imperites.4 And oftentimes upon Actes of Parliament, overladen with provisoes, and additions, and many times on a sudden penned or corrected by men of none or verie little judgement in Law.
If men would take sound advise and counsell in making of their Conveyances, Assurances, Instruments, and Willes: And Councellors would take paines to be rightly and truely informed of the true state of their Client’s case, so as their advise and counsel might be apt & agreeable to their Client’s estate: And if Acts of Parliament were after the olde fashion penned, and by such only 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 should verie few questions in Law arise, and the learned should not so often and so much perplexe their heades, to make attonement and peace by construction of Law betweene insensible and disagreeing wordes, sentences, and Provisoes, as they now doe.
In all my time, I have not knowen two questions made of the right of Discents, of Escheates by the common Lawe &c. so certaine and sure the Rules thereof be: Happy were Artes if their professors would contende, 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 kind and favorable acceptation (gentle Reader) of my former Edition, hath caused me to publish these few cases in performance of my former promise, & I wish to you all no lesse profit in reading of them, than I perswade myselfe to have reaped in observing of them. This only of the learned I desire.
Sir Edward Coke, The Twelfth part of the Reports
Sir Edward Coke 1552-1634
The Twelfth part of the
EDWARD COKE, Kt.
Divers Resolutions and Judgments given upon solemn
Arguments, and with great Deliberation and Conference with the Learned Judges in Cases of
The most of them very Famous, being of the Kings especiall Reference, from the
Concerning the Prerogative; As for the digging of
Salt-peter, Forfeitures, Forrests, Proclamations, &c. And the Jurisdictions of the Admiralty, Common Pleas, Star-Chamber, High Commission, Court of Wards, Chancery, &c. And Expositions and Resolutions concerning Authorities, both Ecclesiasticall and Civill, within this Realme.
Also the Formes and Proceedings of Parliaments, both in
ENGLAND, & IRELAND;
With an Exposition of Poynings LAW.
Non est leges condendi authoritas; ubi non est obediendi necessitas, & é converso.
With Alphabeticall Tables, wherein may be found the Principall Matters contained in this Book.
Printed for Henry Twyford and Thomas Dring, and are to be sold in Vine-Court Middle Temple, and at the George in Fleet-street, neer Cliffords-Inne, 1658.
Prohibitions del Roy,” printed in part 12 of Coke’s celebrated Reports, is one of the most cited of all Coke’s cases and of clear importance to the issue of sovereignty. King James had raised the question of the king’s right to decide cases in the court of King’s Bench. This pretension, Coke informs us, he tactfully denied, pointing out that while the law was based upon reason and his majesty was well endowed with that commodity, cases were not to be decided by natural reason “but by the artificial reason and judgment of Law”—an art that required many years to master. James then cautioned that this being so the king would be under the Law “which was Treason to affirm.” Coke deftly handled this crucial point in a famous response. He quoted the great medieval jurist Henry Bracton’s pronouncement that the king was under no man, but he was under God and the law.
Writs of prohibition had been used to remove cases from ecclesiastical and admiralty courts to the common law courts on the ground the former courts lacked proper jurisdiction to try them. Coke had angered the church by repeatedly using writs of prohibition against ecclesiastical courts. A prohibition del roy denies the king’s jurisdiction.
This case occurred in 1607 while Coke was James’s chief justice of the common pleas but was not published until 1656. The edition used here is that of 1658. The manuscript version of the twelfth part of the reports in which it appeared was among Coke’s papers seized by Charles I in 1634 upon Coke’s death. Seven years later, on the petition of the House of Commons, Charles returned the manuscripts to Coke’s heir, Sir Robert Coke. Coke’s planned twelfth volume of Reports was published during the Protectorate. The mistakes in several of the legal citations are doubtless due to the fact that the work was published by those less painstaking than the author.
Michaelmas Term. 5 James I
Prohibitions del Roy.
Note, upon Sunday, the tenth of November, in this same Terme, the King, upon complaint made to him by Bancroft Arch-bishop of Canterbury, concerning Prohibitions, the King was informed, that when Question was made of what matters the Ecclesiasticall Judges have Cognizance, either upon the Exposition of the Statutes concerning Tiths, or any other thing Ecclesiasticall, or upon the Statute 1. Eliz.1 concerning the high Commission, or in any other case in which there is not expresse Authority in Law, the King himselfe 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 determine, from the determination of the Judges, and may determine them himselfe. And the Archbishop said, that this was cleer 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 cleer consent of all the Justices 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, according to the Law and Custome of England, and alwayes Judgements are given, Ideo consideratum est per Curiam, so that the Court gives the Judgement. And the King hath his Court, viz. in the upper House of Parliament, in which he with his Lords is the supreame 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 erre, that may be reversed in the upper house of Parliament, 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 H. 188.8.131.52 by Brudnell:3 And it appears in our Books, that the King may 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 alwayes present in Court in the Judgement of Law; and upon this he cannot be non-suit:4 But the Judgements are alwayes given Per Curiam; and the Judges are sworn to execute Justice according to Law and custome of England. And it appeares by the Act of Parliament, of 2 Ed. 3. cap. 9.52. Ed. 3. cap. 1.6 That neither by the great Seale, nor by the little Seale, Justice shall be delayed; ergo, the King cannot take any cause out of any of his Courts, and give Judgment upon it himselfe, but in his owne cause he may stay it, as it doth appeare, H.4.8.7 And the Judges informed the King, that no King after the conquest assumed to himselfe to give any Judgment in any cause whatsoever, which concerned the administration of Justice within this Realme, but these were solely determined in the Courts of Justice.8 And the King cannot arrest any man, as the Book is in 1 H.7.4.9 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. 3.14.10 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.H.7.4 Hussey chiefe Justice,11 who was Attorney to Ed. 4. reports, that Sir John Markham chief Justice said to King Edward 4 That the King cannot arrest a man for suspition of Treason or Felony, as other of his Leiges 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 informe the King, that such absolute power and authority as is aforesaid, belonged to the King by the Word of God, vide 4.H.4.cap.2212 which being translated into Latine, the effect is, Judicia in Curia Regis reddita non annihilentur, sed stet judicium in suo robore quousq; per judicium Curiae Regis tanquam erroneum,&c. vide West, 2 cap. 5.13vide le Stat. de Marbridge. cap 1.14Provisum est, concordatum, & concessum, quod tam majores quam minores justitiam habeant & recipiant in Curia Domini Regis, & vide le Stat. de Mag. Charta. cap. 29.,1525 Ed. 3. cap. 5.16 None may be taken by petition or suggestion made to our Lord the King or his Councill, unless by Judgement. And 43 Ed. 3. cap. 3.17 no man shall be put to answer without presentment before the Justices, matter of Record, or by due Processe, or by Writ Originall, according to the Ancient Law of the Land: And if anything be done against it, it shall be void in Law and held for Error, vide 28 Ed. 3. cap. 3.,1837 Ed. 3. cap. 18.,19vide 17 R. 2. ex rotulis Parliamenti in Turri act 10.20 A controversie 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 concerne 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 art 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 & Lege.21
[1. ]2 Edw. III, cap. 8, Statute of Northampton, 1328. This section reads “That it shall not be commanded by the great Seal nor the little Seal to disturb or delay common Right; and though such Commandments do come, the Justices shall not therefore leave to do right in any point.” See Statutes of the Realm, vol. 1, 259.
[2. ]20 Edw. III, cap. 1, 1346, Ordinance for the Justices. In Section 1 the king proclaims that all his justices have been commanded “That they shall from henceforth do equal Law and Execution of right to all our Subjects, rich and poor, without having regard to any Person, and without omitting to do right for any Letters or Commandment which may come to them from Us, or from any other, or by any other cause.” See Statutes of the Realm, vol. 1, 303.
[3. ]Magna Carta, cap. 29. “To no one will we sell, to no one will we deny or delay right or justice.”
[4. ]Unskillful ones.
[1. ]Eliz. cap. 1, 1558/59, An Act Restoring to the Crown the Ancient Jurisdiction over the State Ecclesiastical and Spiritual, and Abolishing All Foreign Power Repugnant to the Same. This act created the powerful Court of High Commission, an ecclesiastical court with jurisdiction over the ecclesiastical state and persons as well as issues of heresies, schisms, contempts, and enormities. See Statutes of the Realm, vol. 4, part 1, 350-55.
[2. ]This citation is incorrect and probably should read 19 Hen. VII, cap. 7, 1503-4. This statute declares that corporations shall not make or enforce any ordinances without the approbation of the chancellor, nor may any corporations restrain suits in the King’s courts. See Statutes of the Realm, vol. 2, 652-53.
[3. ]Robert Brudenell was an important justice of the late fifteenth and early sixteenth centuries serving as chief justice from 1521 to 1531. Here Coke also cites 2.R.3.9.21. This citation is incorrect as no statutes were passed after the first year of Richard III. This should probably be 1 Ric. III, cap. 9, An Act touchinge the Marchaunts of Italy, 1483-84. See Statutes of the Realm, vol. 2, 489-93, and 490, n. 8.
[4. ]“Non-suit” is the name of a judgment against a party in a legal proceeding who has failed to appear to prosecute his action or failed to prove his case.
[5. ]This citation ought to be to 2. Edw. III, Statute of Northampton, cap. 8, 1328, which states that “it shall not be commanded by the great Seal nor the little Seal to disturb or delay common Right; and though such Commandments do come, the Justices shall not therefore leave to do right in any point.” See Statutes of the Realm, vol. 1, 259.
[6. ]2 Edw. III, Statute of Northampton, cap. 1, 1328, confirms that Magna Carta and the Charter of the Forest shall be observed in all points. See Statutes of the Realm, vol. 1, 257.
[7. ]This appears to be an inaccurate citation as there were no laws passed in 17 Henry VI.
[8. ]1 Edw. 3, cap. 14, None shall commit Maintenance. This statute states, “Because the King desireth that common Right be administered to all Persons, as well Poor as Rich; he commandeth and defendeth, That none of his Counsellors, nor of his House, nor none other of his Ministers, nor no great Man of the Realm by himself, nor by other, by sending of Letters, nor otherwise, nor none other in this Land, great nor small, shall take upon them to maintain Quarels nor Parties in the Country, to the Let and Disturbance of the Common Law.” See Statutes at Large, vol. 1, 195.
[9. ]1. Hen. VII, cap. 4, 1485, An Act for Bishops to Punish Priests and Other Religious Men for Dishonest Life gives bishops the authority to imprison priests for incontinency.
[10. ]This citation is inaccurate as there are no statutes between the thirty-eighth and the forty-second years of Edward III. However, 37 Edw. III, cap. 18, makes the point discussed. See Statutes of the Realm, vol. 1, 382.
[11. ]Sir William Hussey or Huse was chief justice of the King’s Bench under Henry VII from 1481 until his death in 1495. He successfully protested against the practice of the Crown consulting with judges.
[12. ]4. Hen. IV, cap. 22, 1402, repeats the statute 25 Edw. III, st. 6, cap. 3, which states that the king’s appointments to benefices will be repealed and annulled if the title is found to be unjust or the benefice already filled. In the latter instance the incumbent is entitled to due process.
[13. ]13 Edw. I, Statute of Westminster, sec. cap. 5, 1285, concerns writs for the recovery of an advowson of a church, apparently necessary because of competing claims to present. Judgments in these cases were to remain in force until reversed and remedies to cover particular circumstances are laid out.
[14. ]52 Hen. III, The Statute of Marlborough, cap. 1, 1267, entitles all persons to receive justice from the king’s courts. Those who take revenge themselves shall be punished. See Statutes of the Realm, vol. 1, 19.
[15. ]Magna Carta, 1225, cap. 29, the version commonly referred to in the seventeenth century, is the famous linchpin of the great charter. It combines cap. 39 of the 1215 version with cap. 40, the two together usually counted as cap. 29. It reads, “No free man shall be taken or imprisoned, or disseised of any freehold of his or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go or send against him, except by lawful judgment of his peers or by the law of the land. To no one will we sell, to no one will we deny or delay, right or justice.”
[16. ]25 Edw. III, stat. 5, cap. 4, 1351-52, states that no one shall be taken “by Petition or Suggestion made to our Lord the King, or to his Council” without lawful presentment, or disenfranchised but by “the Course of the Law.” If anything is done to the contrary “it shall be redressed and holden for none.” See Statutes of the Realm, vol. 1, 321.
[17. ]43 Edw. III, cap. 3, 1369, was designed to prevent extortions by the king’s butler and his lieutenants who had been taking the goods of merchants for the king’s use, in particular wine.
[18. ]28 Edw. III, cap. 3, 1354, None shall be condemned without due Process of Law. This chapter specifically protects every man “of what Estate or Condition that he be.” See Statutes of the Realm, vol. 1, 345.
[19. ]37 Edw. III, cap. 18, 1363. The act states that men have made suggestions to the king that, contrary to Magna Carta, certain individuals be imprisoned and dispossessed without due process of law. All those that make such suggestions are henceforth to be taken before the “Chancellor, Treasurer, and his Grand Council,” must find surety to pursue their suggestion and, if it be found evil, incur the same pain “the other should have had if he were attainted.” See Statutes of the Realm, vol. 1, 382.
[20. ]17 Ric. II. c. 10, 1393-94, Two Lawyers shall be Commissioners of Goal Delivery. See Statutes of the Realm, vol. 2, 90.
[21. ]That the King was under no man, but under God and the Law.