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Part Four 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.
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Part Four of the Reports
The Fourth Part of Coke’s Reports was published in 1602. It was originally published in Law French and entitled Le quart part des reportes del Edward Coke chivalier, l’attorney general le roy: de divers resolutions & judgements dones sur solemnes arguments, & avec graund deliberation & conference des tresreverend judges & sages de la ley de cases difficult, en queux sont graund diversities des opinions, et queux ne fueront unques resolves, ou adjudges, & reporte par devant, et les raisons & causes des dits resolutions & judgements: publies en le primier an (le printemps de tout heureusite) de tresheureux regiment de treshault et tresillustre Jaques roy Dengleterre, Fraunce, & Ireland, & de Escoce le 37., le fountaine de tout pietie & justice, & la vie de la ley. In English, The Fourth Part of the Reports of Sir Edward Coke, Knight, the King’s Majesty’s Attorney-General, of divers Resolutions and Judgments given upon solemn Arguments, and with great Deliberation and Conference of the most reverend Judges and Sages of the Law, of Cases difficult, in which are great diversities of opinions, and which were never Resolved or Adjudged, or Reported before: and the Reasons and Causes of the said Resolutions and Judgements. Published in the first yeare (the springtime of all happiness) of the most happie and prosperous Raigne of the Most High and Most Illustrious James, king of England, France, and Ireland, and of Scotland the 37. the Fountaine of all piety and Justice and the Life of the Law.
The cases in this part present issues that range further afield from property law than do the first three volumes. Although there are cases on the rights of husbands and wives over property, and on debt collection and many on copyholds (which are akin to modern leases), this part moves into the domains now known as tort law, contract law, criminal law, and civil and appellate procedure.
Epigrams from the title page:
Proverb. 16. 12.
Abominabiles Regi qui agunt impie, quoniam Justicia firmat solium.1
Proverb. 16. 13.
Voluntas Regis labia justa, qui recta loquitur diligetur.2
Psal. 37. 37.
Custodia innocentiam, & vide aequitatem, quoniam sunt reliquiae homini pacifico.3
(Preface) To the Reader.
There is nothing that can bee said or written of Lawes, although the field bee large, and the common place thereof may seeme to be infinite, but in mine opinion may bee reduced to one of these sixe heades; Making, Correcting, Digesting, Expounding, Learning, and Observing. Of Lawes, concerning Making of new, sixe things amongst many other doe principally fall into consideration. First, under what forme of Common wealth the Lawmakers be governed; For one consideration is requisite where the government is Monarchicall, another when it is Artistocraticall, and a third where it is Democraticall. Secondly, to know the several kinds of the Muncicipall Lawes of his owne proper Nation: For the innovation or chaunge of some Laws is most dangerous, and lesse perill in the alteration of others. Thirdly, to understand what the true sence and sentence of the Lawes then standing is and how farre forth former Lawes have made provision in the case that falleth into question. Fourthly, by experience to apprehend what have beene the causes of the danger or hinderance that hath fallen out in that particular to the Common wealth, either in respect of time, place, persons or otherwise. Fifthly, to foresee that a proportionall remedy be applied so, as that for curing of some defects past, there bee not a stirring of more dangerous effects in future. Sixtly, the mean, & that only is by authority of the high (that in troth is the highest) Court of Parliament. Concerning the Correction of olde, the same respectes are to be observed, that have been said touching the Making of new. For Digesting of former Laws into Methode and order, three things are requisite: Judgement to know them, Art to dispose them, and Diligence to omit none of them. The Expounding of Lawes doth ordinarily belong to the reverend Judges, and Sages of the realme: And in cases of greatest difficulty and importance to the high court of parliament: Concerning Learning & attaining to the knowledge of these Lawes, I have in the Preface of my first Edition somewhat touched. The observing of Lawes doth concerne all whatsoever; but principally some in particuler, as hereafter shalbe touched, For Summa sequar fastigia rerum.1 Our kingdome is a Monarchie Sucessive2 by inherent birth-right, of all others the most absolute and perfect forme of government, excluding Interregnum,3 and with it infinite inconveniences; The Maxime of the Common Law being, That the king of England never dyeth, which is true in respect of the ever during, and never dying politique capacity. The Lawes of England consist of three parts, The Common Law, Customes, & acts of parliament: For any fundamental point of the ancient Common Lawes and customes of the realme, it is a Maxime in policie, and a triall by experience, that the alteration of any of them is most dangerous; for that which hath beene refined and perfected by all the wisest men in former succession of ages and proved and approved by continuall experience to be good & profitable for the common wealth, cannot without great hazard and danger be altered or chaunged. Infinite were the scruples, suites, and inconveniences that the Statute of 13. Edw. 1. de Donis conditionalibus4 did introduce, which intended to give every man power to create a new found estate in taile, & to establish a perpetuitie of his landes, so as the same should not be aliened nor letten, but only during the life of tenant in taile, against a fundamentall rule of the Common Law; That all estates of inheritance were fee simple, wherupon these inconvenienciesinsued, purchases defeated, leases evicted, other estates and graunts made upon just and good consideration were avoided, creditors defrauded of the just & due debts, Offendors imboldned to commit capital offences, and many other inconveniences followed: Also, what suits and troubles arose by the Statute of cap. 34. Edw. 3. of Nonclaime,5 enacted against a main point of the Common Law, whereby insued the universall trouble of the Kings subjects, as it was resolved in Parliament in 4.Hen. 7. cap.24. is apparant to all of least understanding: What intricate and subtile questions in lawe dayly arose upon the validity and construction of willes of lands, which by the rule of law were not devisable before the statuts of 32. and 34.Hen. 8. of Wils, dayly experience to the ruine of many, and hinderance of multitudes manifestly teacheth. But above all, certaine late inventions and devises in assurances of lands by limitation of uses, under upstart and wild provisoes and limitations, such as the Common Law never knew, doe breed and multiplie infinite troubles, questions, suits, and difficulties: In the Parliament holden in the 20. yeare of King Henry the third, it was mooved that Children borne before mariage (being Bastards by the Common Lawes of this Realme, the wisedome of the Law abhorring clandestine contracts) might be legitimate according to the Civill or Ecclesiasticall lawes, whereunto saith the Statut, Omnes Comites & Barones una voce responderunt, Nolumus leges Anglia mutare quae hucusque usitatae sunt & approbatae:6 In which few words is observable; First, the absolute monaccord and unity, una voce, of all the Peeres and Lords of Parliament: Secondly the deniall, Nolumus leges Anglie,7 not of Normandy, or of any other Nation, as is fondly dreamed, as elsewhere I have shewed, but the common Law of England: And thirdly, the reason of their deniall: Quaehactenus usitate sunt & approbate,8 as if they should have said, we will not change the Lawes of England, for that they have been anciently used and approved from time to time by men of most singular wisdome, understanding, and experience. I will not recite the sharpe Law of the Locrenses9 in magna Graecia, concerning those that sought innovation in preferring any new Law to be made, you may read it in the glosse of the first booke of Justinians Institutes, because it is too sharpe & tart for this age: But take we the reason of that Law, Quia leges figendi & refigendi consuetudo est perniciosa.10 But Platoes Law I will recite touching this matter, which you may read in his sixt booke de Legibus; If any Citizen doe invent any new thing, which never before was read or heard of, the Inventor thereof, shall first practise the same for the space of tenne yeeres in his owne house, before it be brought into the Common wealth, or published to the people, to the end that if the invention be good, it shall be profitable to the Inventor, and if it were nought, he himselfe and not the Common wealth might taste of the prejudice. And I like well the Edict reported by Suetonius; Quae praeter consuetudinem & morem maiorum fiunt, neque placent, nec recta videntur,11 And I would the commandement of Honorius and Arcadius were of us Englishmen observed, Mos fidelissimae vetustatis retinendus est:12 And I agree and conclud this point with the Apotheg[m] of Pereander of Corinth, That old Lawes and new meats are fittest for us. As concerning the correcting of the Common Lawes or antient Customes of England, may be applyed all that hath been said concerning making of Lawes: only this adde; That it hath bin an old rule in Policy and Law, that Correctio Legum est euitanda.13 And yet concerning certaine of our penall statutes, to repeale many that time hath antiquated as unprofitable, and remaine but as snares to intangle the subjects withall; And to omit all those that be repealed, that none by them be deceived, as for example concerning Drapery, or such like. To make one plaine and perspicious law divided into articles, so as every subject may know what actes be in force, what repealed, either by particuler or general words, in part or in the whole, or what branches and parts abridged what inlarged, what expounded: so as each man may clearly know what and how much is of them in force, and how to obey them, it were a necessary worke, and worthy of singular commendation: which his Majesty out of his great wisedome and care to the Common wealth, hath commanded to be done: for as they now stand, it will require great paines in reading over all, great attention in observing, and greater judgement in discerning upon consideration of the whole, what the Law is in any one particular point: But with this Caution that there be certaine Statutes concerning the administration of justice, that are in effect so woven into the Common Law, and so well approved by experience, as it will be no smal danger to alter or change them: And herein according to his Royall commandement (God willing) somewhat in due time shall be performed. For bringing of the Common Lawes into a better Methode, I doubt much of the fruit of that labour. This I know, that abridgements in many professions have greatly profited the Authors themselves; but as they are used have brought no small prejudice to others: For the advised and orderly reading over of the bookes at large in such maner as elswhere I have pointed at, I absolutely determine to be the right way to enduring and perfect knowledge, and to use abridgements as tables, and to trust only to the bookes at large: For I hold him not discreet that will Sectari rivulos,14 when he may petere fontes.15 And certain it is that the tumultuary reading of abridgements, doth cause a confused judgement, and a broken & troubled kind of delivery or utterance: But to reduce the said penall Laws into such methode & order & with such caution as is abovesaid (which cannot be done but in the high court of parliament, nor without the advise of such as before is touched) were an honorable, profitable and commendable worke for the whole common wealth. This fourth part of my Reports doth concerne the true sence & exposition of the lawes in divers & many Cases, never adjudged or resolved before: which for that they may in mine opinion tende to the generall quiet & benefit of many, The onely end (God knoweth) of the edition of them, I thought it a part of my great duty that I owe to the common wealth not to keepe them private, but being withall both incouraged, and in maner thereunto inforced, to publish and communicate them to all, wherein my comfort and contentation is great, both in respect of your singular and favorable approbation of may former labours, as for that I (knowing mine own weakenes) have one great advantage of many famous and excellent men that have taken upon them the great and painfull labour of writing: For they to give their workes the more authority and credite, have much used the figure Prosopopeia in faining divers Princes, and others of high authority, excellent wisedom, profound learning, & long experience, to speake such sentences, rules & conclusions, as they intended and desired for the common good, to have obayed and observed; As Zenophon the great in his Booke which he wrote of the Institution of Princes, faineth that king Cambyses taught and spake many excellent things to Cyrus his sonne; And in another Booke which he wrote of the Art of Chivalry, he saineth how king Philip taught and instructed his sonne Alex[an]der to fight. But I without figure, or fayning, do report and publish the very true resolutions, sentences, and judgements of the reverend Judges and Sages of the lawes themselves, who for their authoritie, wisedome, learning, and experience, are to be honoured, reverenced, and beleeved. The due observation of the said Lawes doth generally without any limitation or exception concerne all: But principally Princes, Nobles, Judges, and Magistrats, to whose custody & charge the due execution (the life and the soule of the Laws) is committed; for that they in respect of their places are more eminent & conspicuous then other men, wherein 3 things are necessarily required, Understanding, Authoritie, and Will: Understanding concerneth things and persons; That is, first what is right, and just to be done, & what ill, and to be avoyded; Secondly, what persons for merit are to be rewarded, And what for offences to be punished: And both in reward and punishment to observe quantity and qualitie. Authoritie to protect the good, and to chastice the ill. Will prompt and readie duely, sincerely, and truely to execute the law. But forasmuch as many Adversaries and two open Enemies do continually lie in wait to assault this good and ready will, it must of necessity have two defensive compleat armors of proofe: first Integrity against these sixe secret adversaries, Gyftes, Affections, Intreatie, Anger, Praecipitation, and Morosa cunctatio, peevish delay. Secondly, Fortitude and Constancie against the terror of Malice, & feare of danger, two open and violent enemies: Videte Judicesquid faciatis, non enim hominis exercetis judicium sed Domini, & quodcunq; judicaveritis in vos redundabit.16 And Deus est Judex justus, fortis, & patiens,17 and so must every Judge bee.18Justus, without respect to give every man his owne: And therefore Judicia are so called, because they are tanquã Juris dicta19 And the law whereby you Judge est mens quadam nullo perturbata affectu,20 Arist. lib. 3°. polit. Fortis against malice and daunger, Neq; timida probitas, neque improba fortitudo reipublicae est vtilis.21 And Patiens, when he doth Justice sincerely & with a good conscience, and yet is despised, despited, or disgraced: Non solum poena, sed patientia acquiret nomen persecutionis, & gloriam victoriae22 Aristotle lib. 2. Top: Melius est iudicare secundũ leges & literas, quam ex propria scientia & sententia. Ignorantia Judicis est plerunque calamitas innocentis.23 And hereof it proceedeth that the kings of this realme have had such speciall care of calling such men to judiciall places, as have knowledge, and other the incidents inseperable above mentioned. And because these Judges are (if order be observed) taken of such as be Sergeants, especially care is alwaies taken in calling men of Learning, integrity, and living to that state and degree; Never can a Judge punish extortion, that is corrupted himselfe, nor any Magistrate punish any sinne as hee ought, that is known to be an offendor therein himselfe; Therefore it is an incident inseperable to good government, that the Magistrates to whom the execution of Laws is committed be princpall observers of the same themselves. But herein heare what shalbe said, to the which nothing can be added; Et nunc reges intelligite, erudimini qui iudicatis terram. Seruite Domino in timore, et exultate ei cum tremore, apprehendite disciplinam, ne quando irascatur Dominus, et pereatis de via iusta.24 Whosoever wil be compleat Judges, Intelligite; apprehendite, erudimini, seruite, exultate25 you must be apparelled with the rich roabes of understanding & learning, you must your selves imbrace discipline, you must observe the lawes your selves, with great feare an humility, which if you will do, Seruite Domino in timore;26 you must be cheerful, & comfort your selves in doing of Justice, for you shall finde many crosses and daungers. Et exultate,27 but yet cum tremore,28 doe all these thinges least ye enter into wrath, and so ye perish from the way of righteousnesse; whereby it appeareth, that the greatest losse a Judge or Magistrate can have, is to give himselfe over to passion and his owne corrupt wil, and to loose the way of righteousnes, Et pereatis via de justa.29 To the whole bodie of the realme concerning this point I say, your fault will be the greater, If having a soveraigne so religious, wise, and learned, so great an observer of Laws, so vertuos of his own person, you apply not your selves to his example & presidet; for the heathen Poet could say; Regis ad exemplum totus componitur Orbis.30 But whilest I was intending and going about this Edition, I by commandment attended upon his most excellent Matie for direction about his highnesse affaires that concerned the duty of my place to prosecute; At what time I well perceived what princely care his Matie had taken for execution and expedition of Justice, and that upon consideration thereof hee found two impediments therein: One, that in the two eminent courts of ordinary Justice, the Kings Bench, and the Common pleas, there were foure Judges, and many times in cases of great difficultie the Judges being equally diuided in opinion in either Court, the matter depending long undecided: For preventing whereof his Majestie in this Terme of Saint Hillarie, in the first yeere of his most happy and prosperous raigne, added a Judge more to either Bench, Sir David Williams Knight, Sergeant at Law, to the King Bench; & Sir William Daniell Knight, Sergeant at Law, to the Court of Common pleas, his Majesty saying, that Numero Deus impare gaudet.31 The second impediment was, that divers doubts and questions of law remained undetermined, the same rising partly upon long and ill penned Statuts lately made, partly by reason of late and new devises and inventions in assurances, which the eye of the Law in former ages never beheld, and cannot yet incline to allow them, and partly by conveyances and willes drawne and devised by such as have Scientiam sciolorum quae est mixta Ignorantia:32 which questions and doubts already growne, his Majesty desired might bee resolved and determined according to the true sence of the Lawes of the Realme. And where there have beene som diversity of opinions betweene certain of the Courts of justice, that the same might upon conference & mature consideration be agreed and resolved. And his Majesty understanding (as it seemes) by reason of my former Editions, that I have observed many determinations and judgements of questionable and doubtfull Cases, which upon great study, consideration, conference, and deliberation, have bin resolved and given by the reverend Judges & Fathers of the Law, required me to proceed, and for the generall good and quiet of the subject to publish them, whose commandement being to me Suprema Lex, hath both incouraged & imposed a necessity upon me to publish this fourth Edition: Whith conteyneth nothing but his Majesties owne, being sweet and fruitfull flowers of his Crowne; for the laws of England are indeed so called, Jura Coronae, or Jura Regia: Because as Bracton lib. I. cap.8. saith: Ipse autem Rex, non debet esse sub homine, sed sub Deo & Lege, quia Lex facit Regem: attribuat igitur Rex legi, quod Lex attribuit ei, videlicet dominationem & imperium: Non est enim Rex ubi dominatur voluntas, & non Lex:33 that is, The King is under no man, but onely God and the Law, for the Law makes the King: Therefore let the king attribute that to the Law, which from the law he hath received, to wit, power and dominion: for where will, and not law doth sway there is no King. And in the Register the wordes of the writ of Ad Jura Regia, be, Rex &c. Salutem: Ad jura nostra Regia ne depereant, seu per aliquorum vsurpationes indebitas aliqualiter subtra-hantur, quatenus juste poterimus, manutenenda, subtractaque & occupata, si quae fuerint ad statum debitum revocanda, necnon ad impugnatores eorundem jurium nostrorum refraenandos, & prout convenit iuxta eorum demerita puniendos, eo studiosius nos decet operam adhibere, & solicitius extendere manum nostram, quo ad hoc vinculo Juramenti teneri dignoscimur & astringi, pluresque conspicimus indies jura illa pro viribus impugnare &c.,34 1. “That our Kingly Lawes and rights perish not, neither be at all withdrawn by undue usurpation of any, which so far forth as Justly we may, are to be mainteyned, & if any shall be with drawne or diverted, to be againe restored to their due state; as also for the bridling of the impugnors of those our said Lawes, & the punishing of them as is meet according to their deserts, we ought the more diligently to provid, & the more carefully to extend our hand & authority; for that we are knowne to be thereto tyed & bound by the bond of an Oath, and for that we daily see very many to their powers to impugne those said Lawes.” And againe, Rex & c. salutem. Ad conseruationem jurium Coronae nostrae, eo nos decet studiosius operam adhibere, quoad hoc astringimur vinculo Sacramenti, & alios conspicimus ad ipsorum jurium eneruationem amplius anhelare &c. concluding thus, Et sciatis quod si secus facere presumpseritis, ad vos tanquam violatores Regii juris nostri non immerito grauiter capiemus,35 which is, “We ought the more earnestly to provid for the conservation of the Lawes & rights of our Crown, as being thereunto tyed by the bond of an Oath; & for that we see others the more greedily to gape after the weakning & subverting of those said Lawes &c. concluding thus; And know ye that if ye shall presume otherwise to do wee shall with griefe not undeservedly hold you as violators of our Kingly rights & Laws.” By which ancient writs appeareth: 1. What an exorbitant offence it hath bin ever deemed to impugne or calumniate these Lawes, being the imperiall Lawes of the Crowne. 2. That in all ages, these Lawes have had many that sought to impugne and violate them: And lastly how grieuously such as so presumed to offend should be punished; Nam & frustra feruntur Leges nisi severe puniantur contemptores;36 And it is truely said, that Non debet Princeps ferre Legum suarum ludibrium:37 And wofull experience hath often taught, (which I my selfe have sometimes observed) that many of those men that have strayned their wits, & streched their tongues to scandalize or calumniate these Lawes, had either practised or plottedsome hainouscrime, and therefore hated, because they feared the just sentence and heavie stroke. The reading of the severall Reports & records of these Lawes, doth not only yeeld immence profit, as elswhere I have noted; but doth conteine the faithfull and true Histories of all successive times, as well concerning the punishment of the evill for their heinous, horrible, and exorbitant offences, as concerning the reward and advancement of men of great merit and vertue for their high and honorable service in the common wealth: And (which is above all) they are memorials to all posterity of the valorous piety, vertues, and victories of the Kings and Princes of this Realme. The first appeareth most evidently amongst other thinges by the creations and erections of men of great desert to eminent places, and degrees of nobility and honour, of such estates, and in such maner and forme, as are warranted by the Lawes of the Realme: The second by the Records of the Attainders in Judiciall proceedings against Capitall and other offendours. And the third by many excellent Records, the most faithfull and perpetuall witnesses, and worthy to be published, and made knowne to all; And therefore at this time least my Preface should exceed his proper module of that sort; Take one example of a Charter made by Edgar King of England, and Recorded, and thereby faithfully continued to this day. “Altitonantis Dei largiflua clementia, qui est Rex Regum, & Dominus Dominantium: Ego Edgarus Anglorum Basileus, omniumque rerum, Insularum Occani quae Britaniam circumiacent, cunctarumque Nationum quae infra eam includuntur Imperator & Dominus: Gratias ago ipsi Deo omnipotenti Regi meo, qui meum imperium sic ampliauit & exaltauit super Regnum patrum meorom. Qui licet Monarchiam totius Angliae adepti sunt a tempore Athelstani, qui primus Regum Anglorum omnes Nationes quae Britaniam incolunt sibi armis subegit, nullus tamen eorum ultra fines Imperium suum dilatare aggressus est, mihi tamen concessit propitia dininitas cum Anglorum imperio, omnia regna Insularum Oceani cum suis ferocissimis Regibus vsque Norvegiam, maximamque partem Hiberniae, cum sua nobilissima Ciuitate de Dublina, Anglorum regno subiugare; quos etiam omnes meis imperiis colla subdare Dei favente gratia coegi. Quapropter & ego Christi gloriam & laudem in regno meo exaltare, & eius seruitium amplificare deuotus disposui: Et per meos fideles fautores Dunstanum videlicet Archiepiscopum, Ayelyolanum, ac Oswaldum Archiepiscopos, quos mihi patres spirituales & consilatores elegi, magna ex parte disposui &c. Facta sunt haec anno Domini 964. Indictione 8. Regni vero Edgari Anglorum Regis 6. in regia vrbe quae ab incolis Ocleayeccastriae nominatur, in natale Domini festiuitate, sanctorum Innocentium feria 4. &c. ✠ Ego Edgar Basileus Anglorum & Imperator Regum gentium, cum consensu & Principum & Archimeorum meorum hanc meam munificentiamsigno crucis corroboro. ✠ Ego Alfriie Reginacon sensi & signo crucis confirmaui. ✠ Ego Dunstan. Archiepiscopus Dorobor. Ecclesiae Christi consensi & subscripsi. ✠ Ego Osticel. Archiepiscopus Eboracensis Ecclesia consensi & subscripsi. ✠ Ego Alferic. Dux. Ego Bruthnod. Dux. Ego Aridgari Dux.38 ✠” Whereby is to be observed, first his piety and devotion towards God the fountaine of all happinesse, the true Summum bonum.39 Secondly, the largenesse of his Empery, and the first Conquest of Ireland, long before the Raigne of King Henry the second. To conclud, of the learned Reader my desire is, that he would eithar amend that which herein he shall finde amisse, or at least that he will not finde fault with any part, untill he hath seriously read over the whole, and then it may be he will reprehend the lesse: And although herein I have taken all the labour; yet I unfainedly wish to all the Readers, all, or at the least equall profit.
The Lord Cromwell’s Case.*
(1581) Trinity Term, 23 Elizabeth I In the Court of King’s Bench.
First Published in the Reports, volume 4, page 12b.**
Ed.: A case of slander. Lord Cromwell brought some renegade preachers into Northlingham, to preach against the new Book of Common Prayer, which had been required by the Queen to be used in all churches. Edmund Denny, the vicar of Northlingham, complained apparently directly to Lord Cromwell, who replied, “Thou are a false varlet, and I like not of thee.” Denny then replied to Lord Cromwell, “It is no marvel that you like not me, for you like of those that maintain sedition against the Queen’s proceedings,” in other words, Denny accused Cromwell of supporting heresy. Cromwell sued for scandal using a device known as a pleading qui tam (literally, “who also”) by which a private person may bring a lawsuit for a violation of a criminal law. The jury rejected Denny’s argument that his statement was true. Coke defended Denny, demonstrating the faulty pleading of the plaintiff’s lawyer, who had cited a poor translation of the statute on which he based his suit from law French into English, which garbled the nature of the claim under the statute as it was in force. This case is interesting for a host of reasons. The use of pleadings qui tam has enjoyed a revival in twentieth-century American procedure, and the case is also an example of the courts’ voiding of a private act of Parliament. It is an interesting case for the role played by Coke, who throughout his career supported the established Church of England against a host of detractors. It was also Coke’s first big case, which Coke won through the careful use of technical pleading standards. Look for his instructions to law students in this regard, near the end of the report. For the fate that awaited Rev. Denny had Coke not found the technical flaw, see The Case de Libellis Famosis, at p. 145.
Henry Lord Cromwell brought an Action de Scandalis magnatum1 against Edmund Denny, Vicar of Northlingham in the county of Norfolk, tam pro dom’ Regina, quam pro seipso;2 and declared upon the stat. of 2 R. 2. cap. 5. That if any contrive aliqua falsa nova, horribilia et falsa nuncia de Praelatis, Ducibus, Comitibus, et aliis Proceribus et Magnatibus Angliae, &c.3 by which debate may arise betwixt the Lords and Commons (which God forbid) by which danger, mischief and destruction may happen to the whole Realm, &c. and quicunque contra fecerit,4 shall incur the penalty of the stat. of W. I. c. 33. And the defendant was charged that he said to the plaintiff, then a baron of the realm, “It is no marvel that you like not of me, for you like of those that maintain sedition against the Queen’s proceedings.” The defendant justified the words, upon which the plaintiff demurred, and the bar was held insufficient. And term’ Trinity 23 Eliz. in arrest of judgment it was moved by the defendant’s counsel, that the declaration was insufficient, because the said Act of 2 R. 2. was mis-recited; for the words of the Act are, Si ascun “controver ascum faux nouvelles et horribles et faux messoinges,”5 which word “messoinges” he who translated the statutes at large into English, has translated “messages” which was the reason that he who drew the declaration in the case at Bar inserted the said word “nuncia” where it should be “mendacia”. 2. The said Act saith, “and whosoever shall do it, shall incur, &c.” And the plaintiff in his declaration saith, et quicunq; contra fecerit, which is as much as to say, “who shall not do it;” But against that it was objected, That the said Act was a Private Act, it concerning only the |[13 a] prelates, nobles, and certain great officers, whereof the Court would not take notice ex officio; and therefore the Court ought to take the Act as the party has alleged it: But it was resolved by Wray, Chief Justice, Sir Thomas Gawdy, et totam Curiam,6 that it was such Act, whereof the Court ought to take notice; and eo magis7 because it by a means concerns the King himself.
1. For as much as it touches the Prelates, Nobles, and great Officers, which are of the King’s Council, and of eminent qualities, and serve him in so high and honourable Offices, which they have under the King, and by his Royal authority have the administration of justice to his subjects, by which it appears that the slandering of them principally concerns the King himself in his Royal government.
2. In as much as the statute saith, That danger, mischief, and destruction may happen to the whole realm, &c. that also concerns the King, for he is the Head of the Realm; and these are the reasons that always such actions de scandalis magnatum8 have been brought upon the said statute tam pro domino Rege quam pro se ipso9 and of all statutes which concern the King, the Judges ought to take notice of them.
Also, it was likewise resolved that if the Act was private, and that the Court ought to take it to be such as is alleged; Then the said Act was against law and reason, and therefore void; For as the same is alleged those who do not offend shall be punished, and thatwas condemnare insontem et demitterereum:10 for which cause judgment was given against the plaintiff quod nihil capiat per billam.11 And afterwards the plaintiff brought a new action, and amended the faults of the Declaration: And then the Court was moved that the said words were not Actionable, because it might well be that the plaintiff meant liking of some persons which maintain sedition against the Queen’s proceedings, and yet he did not know that they maintain sedition, nor do the words import that the plaintiff knew that they maintained sedition. And it was said, quod sensus verborum est duplex, scil. mitis et asper; et verba semper accipienda sunt in mitiori sensu:12 To which it was said, that sedition is a public thing. Et dicitur seditio quasi seorsum itio magni populi, quando itur ad manus,13 which is notably described by the Poet:
By which sedition (being so public and violent) it was said that by common intendment the plaintiff had notice of it; and it is not like felony or murder which may be clandestine, and done in secret. But as to that, the Judges did not deliver any opinion, for they said, that upon argument and consideration they might alter their opinion |[13 b] which they now conceived, which would be dangerous to the party; and therefore they said to the defendant’s counsel, Be well advised, and plead, or demur at your peril; wherefore they pleaded a special justification (well knowing that the other matter should be saved to them) and the effect of the justification was, That the defendant was Vicar of Northlinham, which was a Benefice with Cure, and that the plaintiff procured J. T. and J. G. to preach severally in the church of Northlinham, who in their sermons inveighed against the Book of Common Prayer, which was established by the Queen and the whole Parliament in the first year of her reign, and affirmed it to be superstitious and impious, &c. upon which the plaintiff and defendant speaking in the said church of these sermons, because the vicar knew they had no licence, nor were authorised to preach; when they were ready to preach, before their sermons forbad them, but they by the encouraged by the Plaintiff proceeded. The plaintiff said to the defendant,“Thou art a false varlet, and I like not of thee;” to which the vicar said, “It is no marvel though you like not of me, for you like of these (innuendo praed’15 J. T. and J. G.) that maintain sedition, (innuendo seditiosam illam doctrinam16 ) against the Queen’s proceedings;” and so justified: And it was moved by the plaintiff’s counsel, that this bar was insufficient for divers causes.
1. The matter of justification was insufficient, because (as has been said) sedition cannot be committed by words, but by public and violent action.
2. If the matter of justification was sufficient, then upon the said Dialogue between the plaintiff and defendant the defendant is not guilty: But it was said, that such justification dialogue-wise had not been seen before; but if the truth of the cause is such, he ought to plead not guilty, and give the special matter in evidence.
But if he will justify, he ought to justify the words in the same sense they import upon the matter alleged in the declaration. As if a man bring an Action upon the Case for calling the Plaintiff murderer; The Defendant will say, that he was talking with the plaintiff concerning unlawful hunting, and the plaintiff confessed that he killed several hares with certain engines; to which the defendant answered and said, “Thou art a murderer” (innuendo the killing of the said hares) this is no justification, for he does not justify the sense of the words which the declaration imports, and therefore he ought to plead not guilty; But as to that it was answered by the defendant’s counsel, and resolved by the whole Court, that the justification was good. For in case of slander by words, the sense of the words ought to be taken, and the sense of them appears by the cause and occasion of speaking of them: for sensus verborum ex causa dicendi accipiend’ est, et sermones semper accipiendi |[14 a] sunt secundum subjectam materiam.17 Then in this case the defendant’s counsel have done well to shew the special matter by which the sense of this word “sedition” appears upon the coherence of all the words, that it was in the defendant’s meaning, the said seditious doctrine against the Queen’s proceedings, scil. the said Act of Parliament de anno primo,18 by which the Book of Common Prayer was established, and that he did not mean any such public or violent sedition as has been described, and as ex vi termini per se19 the word itself imports; and it was said, God forbid that a man’s words should be by such strict and grammatical construction taken by parcels against the manifest intent of the party upon consideration of all the words, which import the true cause and occasion which manifest the true sense of them; quia quae ad unum finem locuta sunt, non debent ad alium detorqueri:20 and therefore in the said case of murder, the Court held the justification good; and that the defendant should never be put to the general issue, when he confesses the words and justifies them, or confesses the words, and by special matter shews that they are not actionable. And although he varies from the plaintiff in the sense and quality of the words, yet it is no cause to drive him to the general issue; as in maintenance, the plaintiff charges the defendant with unlawful maintenance, the defendantmay justify by reason of a lawful maintenance, and may not plead the general issue: wherefore the plaintiff replied and said, Quod praed’ Edwardus Denny dixit propalavit et praedicta verba, &c. de injuria sua propria absque tali causa,21 and thereupon issue was joined; et postea partes concordaverunt;22 and this was the first cause that the author of this book (who was of counsel with the defendant) moved in the King’s Bench.
In this case Reader, you may observe an excellent Point of Learning in Actions for Slander, to observe the occasion and cause of the speech, and how the same may be pleaded in excuse of the Defendent.
2. When the matter in fact will clearly serve for your client, although your opinion is that the plaintiff has no cause of action, yet take heed you do not hazard the matter upon a demurrer; in which, upon the pleading, and otherwise, more perhaps will arise than you thought of; but first take advantage of the matters of fact, and leave matters in law, which always arise upon the matters in fact ad ultimum23 and never at first demur in law, when after the trial of the matters in fact, the matters in law (as in this case it was) will be saved to you.
Cutler v. Dixon.
(1585) Michalmass Term, 27 and 28 Elizabeth I In the Court of King’s Bench.
First Published in the Reports, volume 4, page 14b.
Ed.: This is a note on the King’s Bench’s holding that a defendant in an action brought before a justice of the peace may not bring a separate lawsuit against the plaintiffs for allegations made in the pleadings of the initial suit.
It was adjudged, That if one exhibits Articles to Justices of Peace against a person certain, containing divers great abuses and misdemeanors, not only concerning the Petitioners themselves, but many others, and all this to the intent that he should be bound to his good behaviour; In this case the party accused shall not have for any matter contained in such Articles any Action upon the Case, for they have pursued the ordinary course of Justice in such case: And if Actions should be permitted in such cases, those who have just cause for complaint, will not dare to complain for fear of infinite vexation.
(1591) Easter Term, 33 Elizabeth I In the Court of King’s Bench.
First Published in the Reports, volume 4, page 44a.
Ed.: William Vaux was arrested for poisoning Nicholas Ridley, which apparently he did at the instigation of Ridley’s wife, by having Ridleyconsume a drink poisoned with ground cantharide beetles. Ridley died. Vaux was indicted, but the form of his indictment neglected to state that Ridley actually drank the poison. The court of assize rendered a judgment that Vaux was a murderer but the indictment was insufficient. Vaux argued he was not guilty, but that anyway he could not be tried twice for the same crime. The King’s Bench agreed that the Common Law will not allow double jeopardy, or a person to be twice put in jeopardy of trial for the same offence, but that in this case Vaux had never been truly acquitted because he had never been in danger of punishment. An insufficient indictment cannot be the basis for release even upon a guilty verdict or a confession, but there must be a new trial. Vaux was retried, found guilty, and hanged.
William Vaux at the sessions of peace for the country of Northumberland, held 27 Julii, anno 32 Eliz. before the justices of peace of the same county, was indicted of voluntarily poisoning of Nicholas Ridley, which indictment was removed into the King’s Bench: and in discharge thereof the said Vaux pleaded, that at another time, scil. 12 Augusti, anno 30 Eliz. at Newcastle upon Tyne in the county of Northumberland, before the Justices of Assise of the same county the said Vaux was indicted: quod cum Nich’ Ridley nuper de W. in com’ praed’ Armig’ jam defunctus, per multos annos, ante obitum suum nuptus fuisset cuidam Margaretae uxori ejus, et nullum exitum habuit, praed’ Will’ Vaux nuper de K. in com’ C. generos subdolè, cautè, at diabolice intendens mortem, venenationem, et destructionem ipsius Nicolai, et Deum prae oculis non habens, 20 Decembris, anno 28 Eliz. apud W. praedict’ felonice, voluntarie, et ex malitia sua precogitata, persuadebat eundem Nichol’ recipere et bibere quendam potum mixtum cum quodam veneno vocat’ cantharides, affirmans et verificans eidem Nich’ quod’ praed’ potus sic mixtus cum praed’ veneno vocat’ canth’ non fuit intoxicatus (Anglicè poisoned) sed quod per reception’ inde praed’ Nich’ exit’ de corpore dictae Margaretae tunc uxoris suae procuraret, et haberet ratione cujus quidem persuasionis et instigationis praed’ Nich’ postea, scil. 16 Januarii anno supradicto apud T. in com’ N. praed’ nesciens praedictum potum cum veneno in forma praedict’ fore mixt’, sed fidem adhibens praedict’ persuasioni dicti Willielmi recepit et bibit, per quod praedictus Nicholaus immediate |[44 b] post receptionemveneni praedicti per tres horas immediatè sequent’ languebat, et postea praed’ 16 Jan. anno supradict’ ex venenatione et intoxicat’ praed’ apud T. praed’ obiit: et sic praed’ Will’ Vaux felonicè et ex malitia sua praecogitata praefat’ Nich’ voluntariè et felonicè modo et forma praed’ intoxicavit, interfecit, et murdravit, contrapacem, &c.1 Upon which indictment the said Vaux was arraigned before the same justices, and pleaded not guilty: and the jurors gave aspecial verdict, and found, quod praed’ Nich’ Ridley venenatus fuit Anglicè poisoned, per receptionem praed’ cantharides, et quod praed’ Will’ Vaux non fuit praesens tempore quo praed’ Nich’ Ridley recepit praed’ canth’ sed utrum, &c.2 And thereupon judgment was given by the said Justices of Assise in this manner; super quo visis, et per Cur’ hic intellectis omnibus et singulis praemissis, pro eo quod videtur Cur’ hic super tota materia per veredictum praed’ in forma praed’ compert’, quod praed’ venenatio per reception’ canth’ et praed’ procuratio praed’ Will’ ad procurand’ praed’ Nich’ ad accipiend’ praed’ canth’ modo et forma prout per verdict’ praed’ compert’ fuit non fuit felonia et murdrum voluntar’: ideo considerat’ est quod praed’ Will’ Vaux, de felonia et murdro praed’ indictamento praed’ superius specificat’ necnon de dicta felonica venenatione praed’ Nich’ Ridley in eodem indictamento nominati eidem Will’ imposit’ eat sine die:3 and as to the felony and murder he pleaded not guilty.
And, first, it was resolved per totam Curiam,4 That the said indictment upon which Vaux was so arraigned was insufficient; and principally because it is not expressly alleged in the indictment, that the said Ridley received and drank the said poison, for the indictment is, praed’ Nich’ nesciens praed’ potum cum veneno fore intoxicatum, sed fidem adhibens dict’ persuasioni dicti W. recepit et bibit, per quod, &c.5 So that it doth not appear what thing he drank, for these words (“venenum praed ”)6 are wanting; and the subsequent words, scilicet per quod praedict’ N. immediate post receptionem veneni praedict’ &c.7 which words imply receipt of poison, are not sufficient to maintain the indictment, for the matter of the indictment ought to be full, express, and certain, and shall not be maintained by argument or implication, because the indictment is found by the oath of laymen.
2. It was agreed per Curiam, That Vaux was a principal murderer, although he was not present at the time of the receipt of the poison, for otherwise he would be guilty of such horrible offence, and yet should be unpunished, which would be inconvenient and mischievous: for every felon is either principal or accessary, and if there is no principal there can be no accessory, quia accessorium sequitur principalem;8 and if any had procured Vaux to do it, he had been accessary before; quod |[45 a] nota9 a special case, where the principal and accessory also shall both be absent at the time of the felony committed.
3. It was resolved by the Lord Wray, Sir Thomas Gawdy, Clench, and Fenner, Justices, that the reason of Auterfoits acquit10 was, because where the Maxim of Common Law is, that the life of a man shall not be twice put in jeopardy for one and the same offence, and that is the reason and cause that Auterfoits acquitted or convicted of the same offence is a good plea; yet it is intendable of a lawful acquittal or conviction, for if the conviction or acquittal is not lawful, his life was never in jeopardy; and because the indictment in this case was insufficient, for this reason he was not legitimo modo acquietatus,11 and that is well proved, because upon such acquittal he shall not have an action of conspiracy, as it is agreed in 9 Edw. 4. 12 a. b. vide 20 Edw. 4. 6. And in such Case in Appeal, notwithstanding such insufficientindictment, the abettor shall be enquired of as it is there also held; and although the judgment is given that he shall be acquitted of the felony, yet this acquittal shall not help him, because he was not legitimo modo acquietatus; and when the law saith, that Auterfoits acquitted is a good plea, it shall be intended when he is lawfully acquitted; and that agrees with the old book in 19 Edw. 3. Corone 444. where it is agreed, That if the process upon indictment or appeal is not sufficient, yet if the party appears (by which all imperfections of the process are saved) and is acquitted, he shall be discharged; but if the appeal or indictment is insufficient (as our case is) there it is otherwise: But if one, upon an insufficient indictment of felony, has judgment, quod suspend’ per coll’,12 and so attainted, which is the judgment and end which the law has appointed for the felony, there he cannot be again indicted and arraigned until this judgment is reversed by error: But when the offender is discharged upon an insufficient indictment, there the law has not had its end; nor was the life of the party, in the judgment of the law, ever in jeopardy; and the wisdom of the law abhors that great offences should go unpunished, which was grounded without question upon these ancient maxims of law and state; maleficia non debent remanere impunita, et impunitas continuum affectum tribuit delinquendi, et minatur innocentes qui parcit nocentibus:13 So if a man be convicted either by verdict or confession upon an insufficient indictment, and no judgment thereupon given, he may be again indicted and arraigned, because his life was never in jeopardy, and the law wants its end; And afterwards, upon a new indictment, the said Vaux was tried and found guilty, and had his judgment and was hanged.
(1602) Trinity Term, 44 Elizabeth I In the Court of King’s Bench.
First Published in the Reports, volume 4, page 92b.*
Ed.: John Slade entered a contract with Humphrey Morley. Slade sold the grains he was growing on eight acres, and Humphrey promised to pay £16. The day for payment came and went with no sign of the money from Humphrey, and Slade sued in assumpsit, a form of contract enforcement action that was then still controversial if an action in debt was available, by bringing an action on the case, which is a special form of pleading that allowed the recovery of special damages (or actual damages that included not only money directly lost by the conduct of the defendantbutalsomoney indirectly lost as a result of the defendant’s conduct). Thus Slade could seek not only compensation for the damages he suffered but the money lost on the whole debt. Humphrey was represented by Dodderidge and Bacon. Coke represented Slade. The courts were initially divided over whether the action could be maintained, but when the argument was brought before the whole bench of all the courts of England, the King’s Bench found that a person harmed by another’s breach on a contract could seek an action, and the other benches appear to have acquiesced. Assumpsit and action on the case were allowed, even though the plaintiff could have sued in debt.
John Slade brought an Action upon the Case in the Kings Bench against Humphrey Morley, (which plea began Hill. 38 Eliz. Rot. 305.) And declared, that where as the Plaintiff 10 Nov. 36 Eliz. was possessed of a Close of land in Halberton in the County of Devon called Rack Park, containing by estimation eight acres for term of divers years then and yet to come, and so possessed, the Plaintiff the said 10 Nov. the said Close beforesaid sowed with Wheat and Rie, which Wheat and Rie 8 Maii, 37 Eliz. were grown into blades: The Defendant in consideration that the Plaintiff at the special instance & request of the said Humphrey. bargained and sold to him the said blades of Wheat and Rie growing upon the said Close (the tithes due to the Parson, &c. excepted) did assume and promise to the Plaintiff to pay him 16l. at the Feast of S. John the Baptist then next to come; and for not-payment thereof at the said Feast of S. John Baptist, the Plaintiff brought the Action; The Defendant pleaded Non assumpsit modo et forma;1 and on trial of this issue the Jurors gave a special Verdict, Scil. That the Defendant bought of the Plaintiff the Wheat and Rie in blades growing upon the said Close as aforesaid, prout2 in the Declaration is alleged. And further found, that between the Plaintiff and Defendant, there was no other promise or assumption but onely the said bargain; And against the maintenance of this Action divers Objections were made by John Doderidge of Counsel with the Defendant.
1. That the Plaintiff upon this bargain may have ordinary remedy by Action of Debt which is an Action formed in the Register, and therefore he shall not have an Action upon the Case which is an extraordinary Action, and not limited within any certain form in the Register; for ubi cessat remedium ordinarium, ibi decurritur ad extraordinarium, et nunquam decurritur ad extraordinarium ubi valet ordinarium,3 as it appeareth by all our Books; et nullus debet agere actionem de dolo, ubi alia actio subest.4
The second Objection was that the |[93 a] maintenance of this Action doth take away the Defendants benefit of Wager of Law, and so bereaveth him of the benefit which the Law hath given him as his birthright. For peradventure the Defendant hath paid or satisfied the Plaintiff in private betwixt them, of which paiment or satisfaction he hath not any witness, and therefore it should be mischievous if he shall not wage his Law in such Case. And that was the cause (as was said) that debts by simple contract shall not be forfeited to the King by outlawry or attainder, becausethatthen by the Kings Prerogative the Subject would be ousted of his wager of Law, which is his birthright as it is holden in 49 Edw. 3. 5a. 50 Ass. 1. 16 Edw. 4. 4 & 9 Eliz. Dyer 262. And if the King shall lose the forefeiture and the debt in such Case, and the debtor by Judgment of the Law shall be rather discharged of his debt, before he shall be deprived of the benefit which the Law hath given to him for his discharge, although that in truth the debt were due and payable; a fortiori5 in the case at Barre, the Defendant shall not be charged in an Action in which he shall be ousted of his Law when he may charge him in an Action of debt, in which he may have the benefit thereof.
And as to these Objections, the Courts of King’s Bench and Common Pleas were divided; for the Justices of the King’s Bench held that the Action (notwithstanding such Objections) was maintainable; And the Court of Common Pleas held the contrary. And for the honour of the Law, and the quiet of the Subject in the appeasing of such diversity of opinions (Quia nil in lege intolerabilius est eandem rem diverso jure censeri)6 the case was openly argued before all the Justices of England, and Barons of the Exchequer, Scil. Sir John Popham Knight Chief Justice of England, Sir Edmund Anderson Knight Chief Justice of the Common Pleas, Sir William Periam Chief Baron of the Exchequer, Clark, Gawdy, Walmesley, Fenner, Kingsmill, Savile, Warberton, and Yelverton, in the Exchequer Chamber, by the Queens Attorney for the Plaintiff, and John Dodderidge for the Defendant; and at another time the Case was argued at Serjeants Inn before all the said Justices and Barons, by the Attorney General for the Plaintiff, and by Francis Bacon for the Defendant; and after many conferences between the Justices and Barons, it was resolved, that the Action was maintainable, and that the Plaintiff should have Judgment. And in this Case these Points were resolved.
1. That although an Action of debt lieth upon the contract, yet the bargainor may have his Action of debt, or Action upon the Case at his election, and that for three reasons or causes. 1. In respect of infinite precedents, (which George Kempe, Esquire Secondary of the Prothonotaries of the King’s Bench shewed to me) as well in the Court of Comon Pleas as in the Court of King’s Bench, in the reigns of King Hen. 6. Edw. 4. Hen. 7 & Hen. 8. by which it appeareth, That the Plaintiffs declared that the Defendants in consideration of a sale to them made of certain goods, did promise to pay so much money, &c. in which |[93 b] Cases the Plaintiffs had Judgment. To which precedents and Judgments being of so great number, in so many successions of ages, and in the several times of so many reverend Judges, the Justices in this Case gave great regard; and so the Justices in ancient times, and from time to time did as well in matters of form, as in deciding of doubts and questions as well at the Common Law, as in construction of Acts of Parliament: And therefore in 11 Edw. 2. Formedon 32. it is holden, That the ancient forms and manner of precedents are to be maintained and kept; and in 34 Ass. 7. that which hath not been according to usage shall not be suffered, [and in 2 Edw. 3. 29. the ancient form and order is to be observed.]7 In 39 H. 6. 30. the opinion of Prisot’ et tot’ Cur’8 was, That in a Writ of mesn9 the Plaintiff ought to surmise the tenure between the Lord paramount and the mesn, as well as between the mesn and the tenant, and shew there divers reasons and causes of their opinions; But when the Justices were informed by the Prothonotaries, that the Book called les Tales, contained the form that had always in such Cases been used; the Book saith, That the Justices resolved, that they would not change the usage, notwithstanding that their opinion was to the contrary; and according to the precedent they awarded the Declaration good: 4 Edw. 4. 44. In a Writ of Error brought by John Paston to reverse an outlawry against him, he did not surmise in the Writ at whose suit he was outlawed, and all the Justices said, it was a strange Writ, and no certainty supposed thereby; for by the Writ it did not appear whether he was outlawed at the suit of the party, or at the King’s suit, or in what suit, or for what thing; and it might be that he was outlawed for felony, debt, trespass, account or fine to the King; But when the Court was informed that the ancient form was such, then they changed their opinions and awarded the Writ good. And resolved, that common course maketh a Law, although that now as there it was said, perhaps reason willeth the contrary: But there the Justices said, We cannot change the Law now, for that shall be inconvenient. And therewith agreeth L. 5 Edw. 4. 1. where it is said, That the course of a Court maketh a Law: vide Mich. 2 & 3 Phil. & M. 120. the statute of West. 2. cap. 12, quod justic’ coram quib’ format’ erit’ appellum et terminat10 shall enquire of damages where the Defendant is acquitted, yet precedents expound the Law against the express letter, Scil. That Justices of Nisi Prius (before whom the appeal was not began) shall do it; And many others to this effect are in our Books: But for as much as precedents are not always allowable, for in our Books: the Judges reject some precedents, see a notable Case in L. 5 Edw. 4. 110. for certain rules and differences in this matter; there it is agreed, That where a question was of a retorn of an Assise, and two or three precedents were shewed, which agreed with the said retorn; and the Justices said, that two or three retorns or precedents doe not make a Law or custome, especially when there are here in Court 40 and more precedents to the contrary; but if there were no precedent to the contrary it were another |[94 a] matter, if not that the Court doe adjudge it against reason, and then it shall be amended, for perhaps the precedents passed without challenge of the party, or debate of the Justices, as then (as it is there recited) of late it was in a Writ of Error for reversing an outlawry in the County of Lancaster, and the Error was because the Sheriff retorned, That ad com’ Lancastriae tent’ ibid’, &c.11 where it should be, ad com’ Lancastriae tent’ apud Lancastr’,12 or other certain place to which this word ibidem shall have relation; and although that there were shewed 100 precedents according to the said retorn, yet the outlawry was reversed: So that in divers Cases precedents do not make a Law; and therefore it was said by the Justices to the parties, That he who would have advantage of precedents ought to search for them at his peril, and for his speed, for the Court would not search for them; for if none, or no usual precedents are not shewn, the Court ought to adjudge according to Law and reason.
Out of which Book, 1. It is to be observed, that two or three or such small number of precedents, doe not make a Law against the generality of precedents in such Case.
2. That the retorn of Sheriffs or Entries of Clerks without challenge of the party, or consideration of the Court being against Common Law and reason, are not allowable: But when the precedents are Judicial, Scil. where the Justices by divers succession of ages have given in Actions there brought, it shall be intended that some of the Counsel with the Defendant, or some of the Justices before whom the Action was tried, and the Record read would have excepted against it, if in their judgment the Action was not maintainable: but in Case of return of an Outlawry, or entries of Clarks, the Records pass in silence, and without exception of the parties, and therefore are not so authentical as Judgments upon demurrers or verdicts; and therefore in such Cases Multitudo errantium non parit errori patrocinium,13 if such retorns or entries of Clerks and Officers be clearly in the opinion of the Justices against Law and reason: So that in the Case at Barre it was resolved, That the multitude of the said Judicial precedents in so many successions of ages well prove that in the Case at Barre the Action was maintainable.
The second cause of their Resolutions was divers Judgments and Cases resolved in our Books where such Actions upon the Case upon Assumpsit hath been maintainable, when the party might have had an Action of debt, 21 Hen. 6. 55 b. 12 Edw. 4. 13. 13 Hen. 7. 26. 20 Hen. 7. 4 b. & 20 Hen. 7. 8 b. which Case was adjudged as Fitz James citeth it, 22 Hen. 8. Dier 22 b. 27 Hen. 8. 24 & 25 in Tatams case, Norwood and Read’s case adjudged Plowdens Comm. 180.
3. It was resolved, That every contract executory importeth in it self an Assumpsit,14 for when one agreeth to pay money, or to deliver anything, thereby he promiseth to pay, or deliver it; and therefore when one selleth any goods to another, and agreeth to deliver them at a day to come, and the other in consideration |[94 b] thereof promiseth to pay so much money to the other, in this Case both parties may have an Action of debt, or an Action upon the Case on Assumpsit, for the mutual executory agreement of both parties importeth in it self reciprocal Action upon the Case, as well as Action of debt, and therewith agreeth the Judgment in Reade and Norwoods Case Plow Comm. 128.
4. It was resolved, That the Plaintiff in this Action upon the Case upon Assumpsit shall not recover onely damages for the special loss (if any be) which he hath, but also for the whole debt, so that recovery or barre in this Action shall be a good barre in an Action of debt brought upon the same contract; so vice versa, a recovery or barre in an Action of debt is a good barre in an Action upon the Case upon Assumpsit. Vide 12 Edw. 4. 13 a. 2 Rich. 3. 14. (2) 33 Hen. 8. Action sur le Case. Br. 105.
5. In some Cases it shall be mischievous, if an Action of debt shall be only brought, and not an Action upon the Case, as in the Case (inter) (Redman and Peck) 2 & 3 Phil. & Mar. Dyer 113. They bargained together that for a certain consideration Redman should deliver to Peck 20 Quarters of Barley yearly during his life, and for not delivery in one year it is adjudged that an Action well lieth, for otherwise it shall be mischievous to Peck, for if he should be driven to his Action of debt, then he himself shall never have it, but his Executors or Administrators, for debt doth not lie in such Case till all the days be incurred, and that shall be contrary to the bargain and intent of the parties, for Peck doth provide it yearly for his necessary use: So (5 Ma. Br. Action sur le Case 108.) that if a sum be given in marriage to be paid at several days, an Action upon the Case lieth for non-payment at the first day, but no Action of debt lieth in such case till all the days are past. Also it is good in these days in as many Cases as may be done by the Law, to oust the Defendant of his Law, and to try the same by the Country, for otherwise it shall be a great occasion of Perjury.
6. It was said, That an Action on the Case on Assumpsit is as well a formed Action and contained in the Register, as an Action of debt, for there is its form. Also it appeareth in divers other Cases in the Register, That an Action on the Case will lie, although the Plaintiff may have another formed Action in the Register; F. N. B. 94 g. & Register 103 b. If a man hath a mannor within any Honour, and has a Leet within his mannor of his Tenants, if he or his tenants are distrained by the Lord of the Honour to come to the Leet of the Honour, he who is so distrained may have a general Action of Trespass, or a special Writ upon his Case: So if any Officer take toll of him who ought to be quit of toll, he shall have a general Action of trespass, or an Action upon his Case, as appeareth by Fitz. ibid. 94. And if a Prior or other Prelate be riding in his journey, and one distrainth his horse upon which |[95 a] he rideth when he may distrain other goods. he may have a general Action of Trespass or an Action upon his Case, as appeareth in the Register (100 b. and F. N. B. 93. H.), If the Sheriff suffer one in Execution upon a Statute Merchant to escape, the conusee may have an Action of debt, or an Action upon the case (H), as appeareth by the Register, 98 b. and F. N. B. 93. B. C. So if a man put the Executors of lessee for years out of their term, they may have a special Writ upon their Case, as appeareth F. N. B. 92. G. & Register 97. and yet he may have Ejectione firmae,15 or Trespass. And therefore it was concluded that in all cases when the Register hath two Writs for one case, it is in the parties election to take which Writ he will: But the Register hath two several Actions, Action upon the Case upon Assumpsit, andalsoan Actionofdebt, and therefore the party may elect the one or the other.
And as to the Objection which hath been made, that it shall be mischievous to the Defendant that he shall not wage his Law, forasmuch as he might pay it in secret: To that it was answered, That it shall be accounted his folly that he took not sufficient witnesses to prove the paiment he made; But the mischief shall be rather on the other part, for now experience proves that mens consciences grow so large, that the respect of their private commodity induceth men (and chiefly those who have declining estates) to perjury; for jurare in propria causa (as one saith) est saepenumero hoc seculo praecipitium diaboli ad detrudendas miserorum animas ad infernum.16 And therefore in debt, or any Action where Wager of Law is admitted, the Judges doe not admit him to it without good warning, and due examination of the party. And as to the Case which was cited, That debts or duties due by single contract where the party may wage his Law shall not be forfeit by outlawry, because the debtor thereby should be ousted of his Law; To that it was answered by the Attorney General, that in such Cases by Law debts or duties shall be forfeit to the King, and so are the better opinions of the Books scil 3 Edw. 3. Corone 343. 19 Edw. 2. Avowry 223. If the tenant of a Prior alien is amerced for want of suit at a Court-Baron, and the King seiseth the temporalties of the Prior alien, yet in an action of debt brought for the same by the prior alien, he shall wage his Law, as it was adjudged 6 Edw. 6. in Serjeant Bendloes Reports, 28 Edw. 3. 92. in Accompt, and Stamford Pleas of the Crown 188. and infinite precedents in all ages in the Exchequer which I have seen approve it. And so it was of late resolved in the Exchequer, and so was holden in this Case by Popham, Anderson and all the other Justices with whom I have conferred, against the sudden opinions in 49 Edw. 3. 5. 50 Ass. 1. 16 Edw. 4. 4. & 9 Eliz. 262. and so you have |[95 b] a doubt in our Books well resolved.
And note Reader, that in every quo minus17 brought by the King’s debtor in the Exchequer against one who is indebted to him upon a simple contract, the Defendant shall not have his Law, for the benefit of the King, as appeareth in 8 Hen. 5. Ley 66. 20 Edw. 3. Ley. 52. 10 Hen. 7. 6. and yet there the King is not party, a fortiori18 when such debt or duty is forfeit to the King, and the King is the sole and immediate party: And note, Reader, this Resolution as to this point with the Judicial Law of God, upon which our Law is in this point grounded, for it appeareth by the 22 Chapter of Exodus, ver. 7. Si quis commendaverit amico pecuniam, &c. et ver. 10. Si quis commendaverit proximo suo asinum, bovem, ovem, et omne jumentum ad custodiam, et mortuum fuer’, aut debilitatum aut captum ab hostibus, nullusque hoc viderit, jusjurandum erit in medio quod non extenderit manum ad rem proximi sui, suscipietque Dominus juramentum et ille reddere non cogetur;19 By which it appeareth; that it is in the election of the party, either to charge the Defendant by witnesses if he will and to oust him of his Law, or to referre it to the Defendants oath. And the Text saith, Nullusque hoc viderit, scil.20 if there be no witnesses. So by our Law in the same Case put in the Text, the owner hath his election either to bring his Action upon the Case in which the Defendant cannot wage his Law, or an Action of detinue21 in which he may, Et jusjurandum in hoc casu est finis;22 for the Plaintiff is bound thereby, and it is the end of all controversie. And I wonder in these days so little consideration is had of an oath, as I daily observe; cum jurare per Deum actus religionis sit, quo Deus testis adhibetur tanquam is qui sit omnium rerum maximus, &c.23
[1. ][Ed.: It is an abomination to the King to commit wickedness, for the throne is established by righteousness.]
[2. ][Ed.: Righteous lips are the King’s desire, for they love him who speak righteously.]
[3. ][Ed.: Mark innocence and behold equity, for they are left to a peaceful man.]
[1. ][Ed.: I will cover the chief points (Vergil, Aeneid 1.342).]
[2. ][Ed.: Successive Monarchy.]
[3. ][Ed.: An interval between reigns.]
[4. ][Ed.: concerning conditional gifts.]
[5. ][Ed.: An early statute of limitations.]
[6. ][Ed.: All the Earls and Barons answered with one voice, ‘We will not change the old laws of England heretofore used and approved’.]
[7. ][Ed.: We will not [change] the laws of England.]
[8. ][Ed.: [The laws have been] heretofore used and approved,]
[9. ][Ed.: Locrians. . .ancient (great) Greece,]
[10. ][Ed.: A custom of enacting and abrogating laws is pernicious.]
[11. ][Ed.: Unless things are done according to custom, and the usage of the majority, they will neither be approved nor seem to be right,]
[12. ][Ed.: A custom of trustworthy antiquity ought to be kept:]
[13. ][Ed.: The amendment of Laws is to be avoided.]
[14. ][Ed.: Follow the streams,]
[15. ][Ed.: Seek out the sources.]
[16. ][Ed.: Judges, take heed what you do, for you do not exercise the judgment of man but of God, and whatever you adjudge will redound upon you.]
[17. ][Ed.: God is a just judge, strong and patient.]
[18. ]1. Paralip. 19. vers. 6.
[19. ][Ed.: like statements of the law.]
[20. ][Ed.: it is for me not to confuse those who are affected (Coke’s citation is doubtful).]
[21. ][Ed.: neither provident timidity nor improvident fortitude is useful to the state.]
[22. ][Ed.: Not only pain but suffering acquires the name of persecution and the glory of victory.]
[23. ][Ed.: It is better to judge according to the letter of the law than according to one’s own knowledge and feeling. Ignorance in a judge is a great mischief to the innocent.]
[24. ][Ed.: Be wise now therefore, you Kings: be instructed, you judges of the earth. Serve the Lord with fear, and rejoice with trembling. Learn discipline so that the Lord is never angry, and you lose the way of righteousness (Psalms 2:10–12).]
[25. ][Ed.: Understand, learn, be instructed, serve and rejoice.]
[26. ][Ed.: Serve the Lord in fear,]
[27. ][Ed.: And rejoice,]
[28. ][Ed.: with trembling,]
[29. ][Ed.: And you lose the way of righteousness.]
[30. ][Ed.: The whole world was created according to the King’s example.]
[31. ][Ed.: God rejoices in an uneven number. (Vergil, Eclogues 8.75)]
[32. ][Ed.: The knowledge of smatterers, which is mixed with ignorance:]
[33. ][Ed.: For the King himself ought to be under no man, but under God and the Law, for it is the Law that makes him King: therefore let the King attribute to the law what the Law attributes to him, namely lordship and power; for where arbitrary whim rules, and not Law, there is no king.]
[34. ][Ed.: Writ, which was used by a King’s clerk to protect a living, or benefice, for someone who contested the King’s title, is translated in the text following this note.]
[35. ][Ed.: This writ is translated in the text following.]
[36. ][Ed.: For the Laws will be rendered useless unless those who disobey them are severely punished;]
[37. ][Ed.: The prince ought not to make a mockery of his Laws:]
[38. ][Ed.: By the great clemency of Almighty God, who is king of kings, and lord of lords, I, Edgar, king of the English and of everything, emperor and lord of all the islands of the ocean which surround Britain, and of whatever nations they enclose, give thanks to the almighty God himself, my king, who has so amplified and exalted my power over the realm of my fathers etc., who, although they had obtained the monarchy of the whole of England from the time of Æthelstan, the first of the kings of England to subdue with arms all the nations which constitute Britain, though none of them had taken the further step of extending their empire beyond the bounds, and has granted me by his divine favour, to subjugate with English power all the kingdoms of the islands of the ocean, with their fiercest kings, as far as Norway and the greater part of Ireland (with its most noble city of Dublin) to the English kingdom, all of which I have with the grace of God brought together with my power; and on account of this, I have arranged to exalt the glory and praise of Christ in my realm, and to amplify his service of devotion, and by my faithful supporters, namely Archbishop Dunstan, Archbishops ‘Ayelyolanus’ and Oswald, whom I have chosen as my spiritual fathers and advisers, I have made great arrangements etc.[...] These things were done in the year of the Lord 964, in the eighth year of the indiction, and in the sixth year of the reign of Edgar, king of the English, in the royal town which is called [Gloucester], in the festival period of Christmas, in the feast of the Holy Innocents etc. I, Edgar, king of the English and emperor of the kingdoms of the world, with the consent of my rulers and great men, have confirmed this my munificence with the sign of the cross. I, Queen Ælfrith, have consented and confirmed with the sign of the cross. I, Dunstan, archbishop of Christ’s church of Dover, have consented and subscribed. I, Oscytel, archbishop of York, have consented and subscribed. I, Duke Ælfere. I, Duke Brihtnoth. I, Duke Ordgar.]
[39. ][Ed.: Highest good.]
[40. ][Ed.: I have done more things than I can catch in words at the present; Nevertheless, I have set things in order.]
[41. ][Ed.: Meanwhile, farewell Reader; and remember that whoever mocks the genuine sense and force of any law, by scheming or craftiness, is to be considered a violator of the law.]
[42. ][Ed.: Farewell.]
[* ][Ed.: The 1604, 1658, and some other, editions spell this name “Cromwel” in the caption. Both spellings were common, even for this one man, and “Cromwell” is the better known.]
[** ][Ed.: See the original pleadings, at 20 Eliz. Rot. 28.]
[1. ][Ed.: Concerning the slander of great men.]
[2. ][Ed.: both for the lady Queen and for himself [i.e. in a qui tam action].]
[3. ][Ed.: any false news, horrible and false tales concerning the Prelates, Dukes, Earls, and other Peers and great Men of the Realm, etc.]
[4. ][Ed.: whosoever shall do the contrary.]
[5. ][Ed.: If anyone should fabricate any false news and horrible and false lies.]
[6. ][Ed.: and the whole Court.]
[7. ][Ed.: all the more so.]
[8. ][Ed.: of great scandal (i.e., scandal of the great men).]
[9. ][Ed.: also for the lord King as well as for himself [the plaintiff] in some degree.]
[10. ][Ed.: to condemn the innocent and acquit the guilty:]
[11. ][Ed.: that he take nothing by [his] bill.]
[12. ][Ed.: that the sense of words is of two kinds: that is, the mild and the harsh; and words are always to be taken in the milder sense:]
[13. ][Ed.: Sedition is so called as if it were seorsum itio (the going asunder) of many people when it takes place.]
[14. ][Ed.: And often, when a disturbance has arisen in a great nation, the base rabble rage angrily, and now flaming brands and stones fly, and madness lends arms. (Virgil, Aeneid, 1. 148.)]
[15. ][Ed.: meaning, the aforesaid (J. T. and J. G.).]
[16. ][Ed.: meaning, that seditious learning.]
[17. ][Ed.: the sense of the words is to be taken from the cause of the speech, and sermons are always to be taken in reference to the subject matter.]
[18. ][Ed.: of the first year,]
[19. ][Ed.: by force of the term by itself.]
[20. ][Ed.: because things that are spoken to one purpose should not be twisted into something else.]
[21. ][Ed.: That the aforesaid Edward Denny spoke and published the aforesaid words etc. of his own wrong, without such cause,]
[22. ][Ed.: and afterwards the parties settled;]
[23. ][Ed.: to the end.]
[1. ][Ed.: That, whereas Nicholas Ridley, late of W. in the aforesaid county, esquire, now deceased for many years, before his death was married to a certain Margaret his wife, and they had no issue, the aforesaid William Vaux, late of K. in the county of C., gentleman, wickedly, advisedly and devilishly intending the death, poisoning and destruction of the selfsame Nicholas, and not having God before his eyes, on the twentieth day of December in the twenty-eighth year of Elizabeth, at W. aforesaid, feloniously, wilfully and of his malice aforethought, persuaded the same Nicholas to accept and drink a certain drink mixed with a certain poison called cantharides, affirming and averring to the same Nicholas that the aforesaid drink, so mixed with the aforesaid poison called cantharides, was not poisoned but that by accepting thereof the aforesaid Nicholas would procure and have issue of the body of the said Margaret then his wife, by reason of which persuasion and instigation the aforesaid Nicholas afterwards, that is to say, on the sixteenth day of January in the above mentioned year, at T. in the county of N. aforesaid, not knowing the aforesaid drink to be mixed with the aforesaid poison, but trusting to the persuasion of the said William, accepted and drank it, whereby the aforesaid Nicholas immediately after receiving the aforesaid poison was ill for three hours immediately following, and afterwards, on the aforesaid sixteenth day of January in the above mentioned year, died from the poisoning and intoxication aforesaid at T. aforesaid, and thus the aforesaid William Vaux feloniously and of his malice aforethought wilfully and feloniously in manner and form aforesaid poisoned, killed and murdered the aforesaid Nicholas, against the peace, etc.]
[2. ][Ed.: that the aforesaid Nicholas Ridley was poisoned by the receiving of the aforesaid cantharides, and that the aforesaid William Vaux was not present at the time when the aforesaid Nicholas Ridleyaccepted the aforesaid cantharides, but whether, etc.]
[3. ][Ed.: Whereupon, all and singular the foregoing having been seen and fully understood by the court here, forasmuch as it seems to the court here upon the whole material found by the aforesaid verdict in form aforesaid that the aforesaid poisoning by the acceptance of the cantharides, and the aforesaidprocuring by the aforesaid William to procure the aforesaid Nicholas to accept the aforesaid cantharides, as was found by the aforesaid verdict in manner and form aforesaid, was not felony and wilful murder, therefore it is decided that the aforesaid William Vaux, with respect to the aforesaid felony and murder specified above in the aforesaid indictment, and of the said felonious poisoning of the aforesaid Nicholas Ridley named in the same indictment, as charged against the same William, should go without day.]
[4. ][Ed.: by the whole Court,]
[5. ][Ed.: the aforesaid Nicholas, not knowing the aforesaid drink to be poisoned with venom, but trusting to the said persuasion of the said William, accepted and drank it, whereby, etc.]
[6. ][Ed.: poison aforesaid.]
[7. ][Ed.: namely, whereby the aforesaid Nicholas immediately after theacceptance ofthepoisonaforesaid, etc.]
[8. ][Ed.: because the accessory follows the principal;]
[9. ][Ed.: which note.]
[10. ][Ed.: previously acquitted.]
[11. ][Ed.: in lawful manner acquitted,]
[12. ][Ed.: that he be hanged by the neck,]
[13. ][Ed.: Misconduct ought not to remain unpunished, for impunity gives continuous encouragement to offenders and threatens the innocent who suffer harm:]
[* ][See the pleadings at Hil. 38 Eliz. Rot. 305.]
[1. ][Ed.: He did not undertake, in the manner and form [alleged].]
[2. ][Ed.: as.]
[3. ][Ed.: where the ordinary remedy ceases, one shall have recourse to the extraordinary; but one shall never turn to the extraordinary where the ordinary is available,]
[4. ][Ed.: and no one should bring an action for a wrong where another action exists.]
[5. ][Ed.: so much the more so.]
[6. ][Ed.: (Nothing is more intolerable in law than to decide the same matter in different ways).]
[7. ][Ed.: Bracketted text omitted from the 1658 edition.]
[8. ][Ed.: and the whole court.]
[9. ][Ed.: An intermediary writ, filed after the initial writ and prior to judgement.]
[10. ][Ed.: that the justices before whom the appeal shall be formulated and determined.]
[11. ][Ed.: at the county of Lancaster held there, etc.]
[12. ][Ed.: at the county of Lancaster held at Lancaster,]
[13. ][Ed.: The multitude of those in error is no defence of the error,]
[14. ][Ed.: Undertaking (An action to enforce a contract not under seal; the plaintiff alleges the defendant undertook an obligation that the law should enforce.)]
[15. ][Ed.: Writ to recover for trespass, literally to throw off of the land,]
[16. ][Ed.: Swearing in one’s own cause is often in these times the devil’s trapdoor for dragging the souls of the wretched down to Hell.]
[17. ][Ed.: Writ to recover waste brought by one with a right to house-bote or hay-bote in another’s woods,]
[18. ][Ed.: so much the more so.]
[19. ][Ed.: If someone hands over money to his friend etc., and verse 10, if someone hands over to his neighbour an ass, an ox, or any beast, to look after, and it dies or becomes feeble, or is seized by enemies, and no one else sees this, there shall be a solemn oath between them that he has not laid hands on his neighbour’s goods, and the owner shall take an oath that he will not compel him to return them. [Exodus, xxii.] (This passage in English in some editions.)]
[20. ][Ed.: And no one sees this.]
[21. ][Ed.: Writ to recover goods in kind or, in the alternative, damages.]
[22. ][Ed.: The oath in this case makes an end of it.]
[23. ][Ed.: since to swear by God is a religious act, whereby God is called to witness, as He who is the greatest of all things etc.]