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.

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:

• Ac veluti magno in populo cum saepe coorta est
• Seditio, saevitque animis ignobile vulgus,
• Jamque faces et saxa volant, furor arma ministrat.14

• Virg. Aen.

By which sedition (being so public and violent) it was said that by common intendment the plaintiff had notice of it; and it is not like felony or murder which may be clandestine, and done in secret. But as to that, the Judges did not deliver any opinion, for they said, that upon argument and consideration they might alter their opinion |[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.

[* ][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.]