The Online Library of Liberty

A project of Liberty Fund, Inc.

• Acknowledgments and Dedicatory
• A Note On the Texts, Editions, and Translations
• Introduction
• Chronology of Events
• Editions of Coke’s Works
• Mottoes and Crests of Sir Edward Coke
• I: Reports
• Part One of the Reports
• The Preface to the Reader.
• Shelley’s Case.
• Part Two of the Reports
• (preface) to the Learned Reader.
• Manser’s Case.
• The Case of Bankrupts.
• |[46 A] the Archbishop of Canterbury’s Case. *
• Part Three of the Reports
• (preface) to the Reader.
• Heydon’s Case.
• Fermor’s Case.
• Part Four of the Reports
• (preface) to the Reader.
• The Lord Cromwell’s Case. *
• Cutler V. Dixon.
• Vaux’s Case.
• Slade’s Case.
• Part Five of the Reports
• (preface) to the Reader.
• Foster’s Case.
• Cases of By-laws and Ordinances the Chamberlain of London’s Case.
• Clark’s Case.
• The Case of Market-overt.
• Semayne’s Case.
• Rooke’s Case.
• Pinnel’s Case.
• |[125 A] the Case De Libellis Famosis.
• Part Six of the Reports
• (preface) to the Reader.
• Jentleman’s Case.
• Part Seven of the Reports
• (preface) Deo, Patriae, Tibi. 2
• Calvin’s Case, Or the Case of the Postnati. 1
• The Case of Swans.
• Penal Statutes.
• Part Eight of the Reports
• (preface) Deo, Patriae, Tibi. 3
• Vynior’s Case. *
• Dr. Bonham’s Case.
• The Case of Thetford School, &c.
• Part Nine of the Reports
• (preface) Deo, Patriae, Tibi. 3
• William Aldred’s Case.
• John Lamb’s Case.
• Mackalley’s Case. (in the Killing of the Sergeant of London.)
• Part Ten of the Reports
• (preface) Deo, Patriae, Tibi. 5
• The Case of Sutton’s Hospital.
• The Case of the Isle of Ely.
• Part Eleven of the Reports
• (preface) Deo, Patriae, Tibi. 4
• The Lord De La Warre’s Case.
• The Case of the Tailors of Habits &c. of Ipswich.
• The Case of Monopolies.
• James Bagg’s Case.
• Part Twelve of the Reports
• Ford and Sheldon’s Case.
• Case of Non Obstante, Or Dispensing Power.
• Q. If High Commissioners Have Power to Imprison.
• Floyd and Barker.
• Of Oaths Before an Ecclesiasticall Judge Ex Officio.
• Of Pardons.
• Customs, Subsidies, and Impositions.
• Buggery. 1
• Premunire.
• Nicholas Fuller’s Case.
• Sir Anthony Roper’s Case.
• Sir Anthony Roper’s Case.
• The Case of Heresy.
• Langdale’s Case.
• Mouse’s Case.
• Prohibitions Del Roy.
• The Lord Aburgaveney’s Case.
• Of Convocations.
• Proclamations.
• Thomlinson’s Case.
• Walter Chute’s Case.
• Sir Stephen Procter’s [proctor’s] Case.
• Exaction of Benevolence.
• Part Thirteen of the Reports
• (preface) to the Reader.
• Prohibitions.
• The Case De Modo Decimandi, 1 and of Prohibitions, Debated Before the Kings Majesty.

|[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.

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 debtors and creditors.

Epigrams from the title page:

[* ][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.]

[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.)]

[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.]