Front Page Titles (by Subject) Part Two of the Reports - Selected Writings of Sir Edward Coke, vol. I
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Part Two of the Reports - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. I 
The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 1.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
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 adjudge 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 Majesty’s Attorney-General, of divers Matters In Law, with great and Mature consideration 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.1
Papian. Lib. 1. Definit.
Lex est commune praeceptum, vivorum prudentium consultum, delictorum que sponte vel ignorantia contrabuntur, communis reipublicae sponsio.2
Lex dicitur a ligando, quia obligat; vel dicitur a legendo, quia publice legatur.3
Cic. Lib. 1. 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.4
Seneca ad Lucil. Epist. 1085
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.6
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.7
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.8
Jero. Epist. 88
Statue tibi quot horis legas, non ad laborem sed ad delictationem.9
(Preface) To the learned Reader.
There are (sayth Euripides) three Virtues worthy [of] our meditation; To honour 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.1 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 gracious Soveraigne, who (to the Worlds admiration,) governeth her people by Gods goodnesse in peace and prosperity by these Lawes, and punisheth not the greatest offendor, no, though his offence be crimen laese Majestatis,2 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 Law, and doe injustice, then displease the Kings humour, whereof the Poet speaketh, Ad libitum Regis, sonuit sententia Legis.3 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 differemus Justiciam vel Rectum.4
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 profession, 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.5
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 Lawes, contend you (as it behoveth) to be learned in your profession, and you shall finde that it is Hominis vitium, non professionis:6 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 Conveyances, 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, sentences, 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 Edition, 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 Iperswade my selfe to have reaped in observing of them: This onely of the learned I desire:
(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 and kept indemnified from all incumbrances, &c.; And that the plaintiff devised 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: whereupon 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 |[3 b] 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, lectionis & linguae.1 Note, reader, that ignorance in reading, or ignorance of the language, quae sunt ignorantia facti,2 may excuse; but as is commonly said, ignorantia juris non excusat:3 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 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,4 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 |[4 a] 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,5 there it is otherwise. Secondly, he hath pleaded, quod quoddam scriptum relaxationis,6 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.
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, in London, 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,1 (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;2 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 February, 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 of part of his said due debt, the goods being of the value of £24. Andafterwards, ultimo Martii,3 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,4 refused to come in as creditor, but claimed the said goods as the proper goods of his master, by the gift aforesaid; and afterwards 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, |[25 b] 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 proportion 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.5 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;6 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 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 favourable 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;7 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, |[26 a] 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 authorised 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 commissioners may well sell them. And the Court resolved, that the provisoconcerning gifts and grants bona fide,8 makes no gift or grant good, which the bankrupt makes after he becomes bankrupt, but excludes them out of the penalty inflicted 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 |[26 b] 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.9 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 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 subveniunt,10 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.
|[46 a] 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 didnotfree 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 Cobham, and the rectory went to the Archbishop, whose tenant, Balser, attempted 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 analysis 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 tenements 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,1 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 |[46 b] 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 possession 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, forfeiture, 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, parsons, vicars, and concludes with these words, “and others having spiritual promotions;” these latter words do not include bishops, causa qua supra.2 So the statute of West. 2. cap. 41. the words of which are, statuit Rex, quod si abbates, priores, custodes hospital’ & aliarum domorum religiosarum, &c.3 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 Parliament 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, &c. virtute cujus ac vigore4 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. |[47 a] 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 construed 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.5 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,6 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 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 |[47 b] 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,7 the said abbot, and all his predecessors, until the dissolution of the same monastery, had held the said manor discharged 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 demesnes of the said manor, against Knightly, who upon the matter aforesaid brought the prohibition, and it was adjudged, that the prohibition was maintainable; 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 discharged 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, &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 reason 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 “discharge,” 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 ofpayment 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; |[48 a] but every suspension is a discharge for a time, and the discharge being referred to the time of the warranty, extends to the suspension. Quod vide8 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.9 is but the conclusion and the 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 discharged of the payment of tithes, will not hold place. For as Bracton saith, stabitur presumptioni donec probetur in contrarium.10 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 (without 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 |[48 b] 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 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;11 which was the reason that when a lease for life was made, always the Habendum12 was, to have and to hold to him durante vita sua naturali,13 for it was then taken, that if the Habendum hadbeen 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 ecclesiastical 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 ecclesiastical 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 |[49 a] 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 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 shouldbewithin 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 |[49 b] discharge of payment of tithes, as the statute of 31 Hen. 8. hath. And therefore such perpetual unity, as hath been said before, will not serve upon this Act of 1 Edw. 6. And afterwards a consultation14 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 counsel with the plaintiff, and the Attorney-General and others with the defendant.
[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.]
[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.]
[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.]
[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].
[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.]
[* ][Ed.: The pleadings are recorded at Pasch. 26 Eliz. Rot. 1608.]
[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).]
[4. ][Ed.: on first sight; presumptively,]
[5. ][Ed.: he was not damaged,]
[6. ][Ed.: that a certain deed of release,]
[1. ][Ed.: according to the form of the statute,]
[2. ][Ed.: for merchandise previously bought from each of them;]
[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;]
[7. ][Ed.: according to the amount of their debts:]
[8. ][Ed.: (In or with) good faith,]
[9. ][Ed.: which was granted by the Court.]
[10. ][Ed.: The laws aid those who are vigilant, not those who sleep,]
[* ][Ed.: The 1658 edition spells this, “The Archbishop of Canturburies Case.”]
[1. ][Ed.: Together and at one time,]
[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.]
[4. ][Ed.: by virtue and by force]
[5. ][Ed.: which was granted by the court.]
[6. ][Ed.: whatsoever,]
[7. ][Ed.: and that by reason thereof,]
[8. ][Ed.: which see, or look up]
[9. ][Ed.: by reason thereof, etc.]
[10. ][Ed.: a presumption will stand good till the contrary is proved.]
[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,]
[14. ][Ed.: A consultation returned an action to a court from which it was removed by the petition for prohibition.]