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Part Five 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 Five of the Reports
The Fifth Part of Coke’s Reports was published in 1605. It was originally entitled Quinta pars Relationum Edwardi Coke Equitis aurati, Regii Attornati Generalis. De variis Resolutionibus & Judiciis, magnâ & maturâ deliberatione in rebus permagni momenti & ponderis, â reverendis Judicibus & Juris-consultissimis latis; unà cum Resolutionum & indiciorum Rationibus & Causis. In lucem aedita anno foelicissimi & florentissimi regni Regis Jacobi, Angliae Franciae & Hiberniae, 3. Scotiae verò 39. augustissimaeq. Majestati eius, justitiae fonti, & legem animae, subiectissima observantiae ergò meritò dedicata & consecrata. In English, The Fifth part of the reports of Sr. Edward Coke, Knight, the Kings Attorney Generall. Of divers Resolutions and Judgments given upon great deliberation, in matters of great importance & consequence by the reverend Judges and Sages of the Law; together with the reasons and causes of their Resolutions and Judgements. Published in the yeare of the most happie and prosperous raigne of King James, of England, France and Ireland the 3. and of Scotland the 39. and in all humblenesse, of right, dedicated to his most excellent Majestie, being the fountaine of Justice, and the life of the Law. The cases in this part are concerned, first, with the administration of law over church matters, particularly the regulation of the clergy and church lands by ecclesiastical and law courts. There are substantial collections of cases on the following: covenants in land, contracts, and leases, including waste and rights to a shipwreck; usury and lending; executions on a debt; the regulation and removal of officeholders; the by-laws and ordinances of cities; city, commercial, and manorial customs; and officials’ powers of search and arrest.
Epigram from the title page:
Tul. Tusc. quest. Lib. 3.
Quid enim laboro, nisi ut veritas in omni questione explicetur; verum dicentibus facile cedam.1
(Preface) To the Reader.
It is truely said (good Reader) that Error (Ignorance beeing her inseperable twynne) doeth in her proceeding so infinitely multiply her selfe, produceth such monstrous & strange Chimaeraes, floateth in such and so many incerteinties, and sucketh downe such poyson from the contagious breath of ignorance, as all such into whom she infuseth any of her poysoned breath, shee dangerously infects or intoxicates; And that which is wonderfull before shee can come to any end, she bringeth all things (if she be not prevented) by confusion to a miserable and untimely end; Naturalia & vera artificialia sunt finita, nullus terminus falso, error immensus.2 On the other side, Trueth cannot bee supported or defended by any thing but by Trueth her selfe and is of that constitution and constancie, as she cannot at any time or in any part or poynt bee disagreeable to her selfe; she hateth all bombasting and sofistication, and bringeth with her certainty, unity, simplicity and peace at the last; Putida salsamenta amant origanum, veritas per et placet, honestae per se decent, falsa fucis, turpia phaleris indigent.3 Ignorance is so far from excusing or extenuating the error of him that had power to find out the Trueth (which necessarily he ought to know) and wanted only will to seek it, as shee will be a just cause of his great punishment. Quod scire debes et non vis, non pro ignorantia sed pro contemptu haberi debet.4 Error and falshood are of that condition, as without any resistance they will in time of them selves fade and fall away: But such is the state of Trueth, that though many doe impugn her, yet will shee herself ever prevail in the end, and flourish like the palm-tree; shee may peradventure by force for a time be trodden down, but never by any means whatsoever can shee be trodden out. There is no subject of this Realme, but being instructed by good and plain evidence of his auntient and undoubted patrimony and birthright, (though hee hath for some by ignorance, false persuasion, or vain feare, been deceived or dispossed) but will consult with learned and faithfull counsellors for the recovery of the same.
The auntient & excellent Lawes of England are the birth-right and the most auntient and best inheritance that the subjects of this realm have, for by them hee injoyeth not onely his inheritance and goods in peace & quietnes, but his lyfe and his most deare Countrey in safety. And for that I feare that many of my deare Countreymen, (and most of them of great capacitie, and excellent parts) for want of understanding of their own evidence, doe want the true knowledge of their auntient birth-right in some points of greatest importance. I have in the beginning of this my fift work, directed them to those that will not only faithfully counsell, & fully resolve them therein, (such as cannot be daunted with any feare, mooved by any affection, nor corrupted with any reward, but also establish and settle them in quiet possession. Upon just grounds to rectifie an Error in a mans owne mind is a work of a cleare understanding, & of a reformed will, and frequent with such as be good men, & have sober and setled wits. The end of such as write concerning any matter, which by some for want of instruction is called into controversie, should be, with al the candor & charity that can be, used, to perswade and resolve by demonstrative proofes the diligent Reader in the truth. But now adayes those that write of such matters, doe for the most part by their bitter and uncharitable invectives, transported with passion and furie, either beget new controversies, or do as much as in them lye to make the former immortall. Certaine it is; that some Books of that argument, that have had truth for their center, yet because they have wanted temperance, modesty, & urbanity for their circumference, have to the great prejudice of the truth hardened the Adversarie in their errors; and by their bitter invectives, whetted them not onely to defend themselves, and to offend in the like, but many times (beeing thereby urged to write) to defend the error it selfe to the hurt of many, which otherwise might have vanished away without any contradiction. He that against his conscience doth impugne a knowne trueth, doth it eyther in respect of himselfe, or of others; of himselfe, in that he hath within him a discontented heart; of others, whom for certaine worldly respects he seeketh to please: Discontented he is, either because hee hath not attayned to his ambitious and unjust desires, or for that in the Eye of the state, he for his vices or wickednes hoth justly deserved punishment & disgrace, & therefore doth oppose himselfe against the current of the present to please others, in respect that his credit or maintenance dependeth upon their favour or benevolence. I Know that at this day all Kingdomes and States are governed by Lawes, & that the particular & approved custome of every nation is the most usuall binding & assured Lawe; I deale only with the municipall lawes of England, which I professe, and where of I have been a Student above these 25. yeres: My only end and desire is, that such as are desirous to see & know (as who will not desire to see & know his own:) may be instructed: such as have been taught amisse (every man beleeving as he hath been taught) may see and satisfie himselfe with the truth, and such as know and hold the truth (by having so ready & easie a way to the fountaines themselves) may be comforted & confirmed.
Multaignoramus quae non laterent, si veterum lectio nobis esset familiaris.5
(1590) Hilary Term, 32 Elizabeth I In the Court of King’s Bench.
First Published in the Reports, volume 5, page 59a.
Ed.: John Lane swore that Ursula Foster was going to injure him or burn down his house, and he sought a general warrant from Nathaniel Bacon, a justice of the peace, who issued it to Robert Smith, the constable. Smith and several other constables arrested Ursula, and the constables offered to take her to Thomas Farmer, another justice of the peace, to post bond. Foster refused to go, but they took her to him anyway, where she entered a recognizance to appear in court, after which the constables took her to Nathaniel Bacon, where she refused to post assurances of good conduct. She sued for false imprisonment but lost. The King’s Bench found that a constable may take a captive under a general warrant to any available justice.
John Foster and Ursula his wife brought a Writ of false Imprisonment against Robert Smith, and upon the pleading as special verdict, the Case was such; scil.1 That the town of Brancaster is within the Hundred of Smithden, in the County of Norfolk; and that the Defendant was praed’ tempore quo, &c.2 one of the Constables of Brancaster. And that Nathaniel Bacon, Esquire, then one of the Justices of Peace within the said County, made a warrant sealed with his seal directed amongst others to the Constables of Brancaster, reciting that John Lane of Brancaster was in fear of his life, mutilation of his members, and burning of his houses by Ursula the Plaintiff, &c. Vobis, &c. praecipimus quod praed’ Ursulam coram aliquo justiciarior’ nostrorum ad pacem in com’ praedict’ assign’ venire faciat’, seu aliquis vestrám venire faciat’ sufficient’ manucapt’, quod ipsa praedict’ Ursula praefat’ Johann’ Lane damnum & malum aliquod, &c. non faciat, nec fieri procurabit. Et si hoc facere recusaverit, tunc ipsam sic recusantem proxim’ prison’ nostrae in com’ praed’ duci facias, &c. ibidem moratur’ quousque gratis hoc facer’ voluer’, &c.3 By force of which warrant the Defendant did arrest the said Ursula, and that afterwards the Plaintiff and one John Hammond |[59 b] offered them to goe to Thomas Farmor, Esquire, one of the Justices of Peace of the same County, to be bounden to the Queen according to the purport of the said warrant; And that the said Robert Smith did refuse to goe to the said Thomas Farmor upon which the Plaintiffs went with the said John Hammond to the said Thomas Farmor, and there acknowledged a Recognizance to the Queen to appear at the next Sessions to be holden within the Hundred of Smithden (the which was not according to the warrant) and that the Defendant praedict’ tempore quo, &c. by force of the said warrant brought the said Ursula before the said Nathaniel, before whom she refused to find sureties; for which the said Defendant carried the said Ursula to Gaol by force of the said warrant. And in this Case two Points were resolved by Wray, chief Justice, and the whole Court.
1. That upon the said general Warrant scil. Coram aliquo Justiciar’, &c.4 it is at the election of the Constable, who is an Officer and minister of Justice, to carry the party arrested to what Justice he will, for it is more reasonable to give election to the officer, who in presumption of Law is a person indifferent, and sworn to do and execute his Office duly, then to give the election to the Delinquent himself, who by presumption of Law will seek excuses, and perhaps will carry the Constable, being for the most part a poor man, to the farthest part of the County, by reason whereof such Constable would be morenegligent and remiss of such Warrants for fear of travel, and loss of their time; Which Judgment is against the opinion of Fineux, 21 Hen. 7. 20. obiter,5 whereof the reporter maketh a Quaere.6 But it agreeth with the opinion of the Lord Brook in abridging the Case of 21 Hen. 7. tit. Faux Imprisonment, 11. Note Reader, the Law adjudged in the point, which never (as I know) was adjudged before.
2. It was resolved, That after the Officer in the Case above, had brought the party before the Justice, and before him she refused to find sureties, the Officer without a new Warrant or commandment may carry the party to Prison, and that by the words of the said Warrant, Et si hoc facere recusaverint, &c.7 And Wray, Chief Justice, said, That a Justice of Peace may in such Case make a Warrant to bring the party before himself, and the same shall be good and sufficient in Law: For, for the most part, he who maketh the Warrant, hath best knowledge of the matter, and therefore most fit to doe Justice in the Case.
Cases of By-Laws and Ordinances The Chamberlain of London’s Case.
(1590) Michaelmas Term, 32 & 33 Elizabeth I In the Court of King’s Bench.
First Published in the Reports, volume 5, page 62b.
Ed.: The city of London passed a by-law requiring taxes on all broad-cloth sold there, and required it to be first approved for sale by city officials at Blackwell Hall, with a penalty for non-compliance. The Chamberlain of London brought an action for debt against the merchants who had not paid. The merchants complained that the tax was a usurpation of Parliament’s right to tax, at least over non-City residents, and that the City’s right was not unlimited. The action for debt was removed from the city court to the King’s Bench, where the tax was upheld as a customary regulation of the City of London. In passing, the Court noted that the King may regulate trade, requiring by charter ships to unload only in certain ports.
The Chamberlain of London brought an Action of Debt in London at the Guildhall there against divers persons, &c. And it was grounded upon an Act of Common Council, or Ordinance made by the Mayor, Aldermen, and Commonalty of the City at their common assembly (which they make by custom, and which amongst others is confirmed by divers Acts of Parliament) by which it was ordained, That if any Citizen, freeman, or stranger within the said City, put any Broad cloth to sale within the City of London before it be brought to Blackwell-hall to be viewed and searched, so that it mayappeartobesaleable, and that Hallage1 be paid for the same, scil. 1d. for every cloth, that he shall forfeit for every cloth 6s. 8d. And further it was ordained, For such forfeiture the Chamberlain of London for the time being should have an Action of debt, &c. And because the Defendants had broken the said Ordinance, for the penalty inflicted by the said Ordinance, the Chamberlain of London brought an Action of debt in London and the same was removed by Habeas Corpus2 into the King’s Bench. And it was moved that those in London cannot make Laws and Ordinances to binde the King’s Subjects, and principally strangers, for then they shall have as high authority as an Act of Parliament: And 2. The said Ordinance (as it was urged) was against the Law and the freedom and liberty of the Subject, to compel him to bring his Clothes to any one place. 3. The imposit. of 1d. for Hallage was a charge to the Subject, and by the same reason they may impose 1d. they may impose 2d. and so in infinit’:3 |[63 a] And one of the Inner Temple of Counsel with the City moved to have a Procedendo.4 It appeareth by many precedents, That it hath been used within the City of London time out of minde for those of London to make Or dinances and Constitutions for the good order and government of the Citizens, &c. consonant to Law and reason, which they call Acts of Common Council. Also all their Customs are confirmed by divers Acts of Parliament, and all such Ordinances, Constitutions, or By-laws are allowed by the Law, which are made for the true and due execution of the Laws or Statutes of the Realm, or for the well government and order of the Body incorporate. And all others which are contrary or repugnant to the Laws or Statutes of the Realm are void and of no effect: And as to such Ordinances and By-laws, these differences were observed; Inhabitants of a Town without any Custome may make Ordinances or By-laws for the reparation of the Church, or a high way, or any such thing which is for the general good of the publick, and in such Case the greater part shall bind all the rest without any Custom. Vide 44 Edw. 3. 19. But if it be for their own private profit, as for the well ordering of their Common of pasture, or the like, there, without a Custom they cannot make By-laws: And if be a Custom, then the greater part shall not binde the less, if it be not warranted by the Custom. For as Custom creates them, so they ought to be warranted by the Custom Vide 8 Edw. 2. Assise 413. Also Corporations cannot make Ordinances or Constitutions without a Custom, or the King’s Charter, if not for things which concern the Commonwealth, as reparations of Church or common high ways, or the like. Vide 44 Edw. 3. 19. 8 Edw. 2. Assise 413. 21 Edw. 4. 54. 11 Hen. 7. 13. 21 Hen. 7. 20 & 40. 15 Eliz. Dyer 322.
And as to the Case at Barre many Statutes were made for the true making of woollen Cloth, which is the principal Commodity of this Realm; and to the intent that the said Statutes might be the better executed without any deceit, the said Act of Common Council was made, that they shall be brought to Blackwell-hall, as to a place publick, and known, to the intent they might be searched and viewed, if they were made according to the said Statutes. So the said Ordinance being made for the better keeping and execution of the said Laws, to prevent all frauds and falsities, was good and allowable by the Law. Also the assessing of the said 1d. for Hallage was good, because it was pro bono publico,5 and it was competent and reasonable, having regard to the benefit |[63 b] which the Subject enjoyed by reason of the said Ordinances, and such assessments being for the maintenance of the publick good, and not pro privato lucro,6 were maintainable by the Law; and it was not to be said a burden or charge to the Subject when he reaped a benefit by it. But it is like Pontage, Murage, Toll, and the like, as appearth in 13 Hen. 4. 14. b. in which Cases the summe for reparations of Bridges, Walls, &c. ought to be so reasonable, that the Subject shall have more benefit thereby than charge.
Also the penalty inflicted upon the offender, be he Citizen or stranger, is lawful, the offence being done within the City, and the summe being competent and proportionable to the offence, and without a penalty the Ordinance shall be in vain: for Oderunt peccare mali formidine poenae.7 And the appointment of their Chamberlain, being their publick Officer to bring the Action of Debt was well and allowable by Law; and the Ordinance being according to Law, may be put in execution without any other allowance, notwithstanding the Statute of 19 Hen. 7. cap. 7.
And after great deliberation Wray, chief Justice, by the advice of the other Justices, granted a Procedendo. Vide 2Edw.3.7. John de Brittain’s Case. The King granted by his Charter that all manner of Ships coming to such a Haven laden with Merchandizes, should be unladen at a certain place, and not elsewhere, to the intent he might be better answered his Customs and other duties.
(1596) Trinity Term, 38 Elizabeth I In the Court of Common Pleas.
First Published in the Reports, volume 5, page 64a.
Ed.: This note case describes an important limit to the Chamberlain’s case, immediately preceding it. A burgess refused to pay tax assessed to pay for civic buildings in the new town of St. Albans and was arrested under the town ordinances. Applying Magna Carta, the Common Pleas held that the town had no authority to inflict imprisonment under a by-law.
In an Action of false Imprisonment brought by Clark against Gape; the Defendant justified the imprisonment, because King Edward the sixth incorporated the town of Saint Alban’s by the name of Mayor, &c. and granted to them to make Ordinances; And shewed, that the Queen appointed the Term to be kept there, and that they with the assent of the Plaintiff and other Burgesses, did assess a summe on every inhabitant for the charges in erecting the Courts there; and ordained, That if any refuse to pay it, that he should be imprisoned, &c. and because the Plaintiff being a Burgess, &c. refused to pay, &c. he as Mayor justified; And it was adjudged no plea, for this Ordinance is against the Statute of Magna Charta, cap. 29. Nullus liber homo imprisonetur;1 which Act hath been confirmed above 30 times, and the Plaintiff’s assent cannot alter the Law in such Case; But it was resolved, that they might have inflicted a reasonable penalty, but not imprisonment, which penalty they might limit to be levied by distress, or by Action of Debt; and the Plaintiff had Judgment.
The Case of Market-Overt.
(1596) Hilary Term, 38 Elizabeth I In the Court of Quarter Sessions.
First Published in the Reports, volume 5, page 83b.
Ed.: This note case presents a holding of the judges of various courts that stolen goods that are sold by a merchant whose trade is generally in the type of goods sold can create good title in a bona fide purchaser, although a sale made after the goods were hidden in a shop or traded in a warehouse would not create good title in the seller. Coke, as Recorder of London, testified to the city custom along these lines.
At the sessions of Newgate now last past, it was resolved by Popham, Chief Justice of England, Anderson, Chief Justice of the Common Pleas, Sir Thomas Egerton, Master of the Rolls, the Attorney General, and the Court, That if Plate be stolen and sold openly in a Scriveners shop on the Market day (as every day is a Market day in London except the Sunday) that this sale shall not change the property, but the party shall have restitution; for a Scriveners shop is not a Market overt for plate: for none will search there for such thing; & sic de similibus, &c.1 But if the sale had been openly in a Goldsmith’s shop in London, so that any one that stood or passed by the shop might see it, there it changeth the property. But if the sale be in the shop of a Goldsmith, or behinde a hanging, or behinde a Cupboard upon which his Plate standeth, so that one that stood or passed by the shop cannot see it, it shall not change the property: So if the sale be not in shop, but in the Ware-house, or other place of the house, it shall not change the property, for that is not in Market overt, and none will search there for his goods. So every shop in London is an open market for such things onely which by the trade of the owner are put there to sale; And when I was Recorder of London, I certified the Custome of London accordingly. Note, Reader, the reason of this case extends to all open Markets in England.
(1604) Michaelmas Term, 2 James 1 In the Court of King’s Bench.
First Published in the Reports, volume 5, page 91a.
Ed.: Peter Semayne held a house in common with George Beriford, who died, leaving his goods in the house. Semayne also held a statute-staple, a type of bond securing a debt from Beriford. Semayne sought a writ to secure Beriford’s lands and goods in payment of the debt. He gave the writ to the sheriffs of London, who began forfeiture proceedings against Richard Gresham, who had succeeded to Beriford’s interests at the time of Beriford’s death. The sheriffs offered to enter Gresham’s house to seize the goods, which Gresham opposed. In this famous case, the King’s Bench described the privileges of a house owner, who may defend it as his castle and greatest refuge. He even has rights against entry and search by the King’s sheriffs, who may break into a house to make an arrest or serve a warrant but who might commit a trespass if they break in when they do not need. The standards of entry by sheriffs are also discussed. Semayne lost because in this non-felony case, Gresham was legally allowed to bar his own door.
In an Action on the Case by Peter Semayne, Plaintiff, and Richard Gresham, Defendant, the Case was such; The Plaintiff and one George Berisford were Joynt-tenants of a house in Black Friars in London for years. George Berisford acknowledged a Recognizance in the nature of a Statute-Staple to the Plaintiff, and being possessed of divers goods in the said house, died, by which the Defendant was possessed of the house by survivorship, in which the goods continued and remained; The Plaintiff sued process of extent upon the Statute to the Sheriffs of London; The Sheriffs returned the conusor dead, uponwhich the Plaintiff had another Writ to extend all the lands which he had at the time of the Statute acknowledged, or any time after, and all his goods which he had at the day of his death; which Writ the Plaintiff delivered to the Sheriffs of London, and told them that divers goods which were the said George Berisford’s goods at the time of his death were in the said house: And thereupon the Sheriffs by virtue of the said Writ, charged a Jury to make enquiry according to the said writ, and the Sheriff and Jury accesserunt ad domum praedictam ostio domus praedict’ aperto existen’ et bonis praedictis in praedicta domo tunc existen’,1 and they offered to enter the said house, to extend the |[91 b] said goods according to the said Writ; And the Defendant, praemissorum non ignarus,2 intending to disturb the execution, ostio proed’ domus tunc aperto existen’, claudebat contra Vicecom’ & jurator’ praed,’3 by which they could not enter, and extend the said goods, nor the Sheriff seize them, by which he lost the benefit and profit of his Writ: And in this Case these points were resolved.
1. That the house of every one is to him as his Castle and Fortress as well for defence against injury and violence, as for his repose; and although the life of man is precious and favoured in law; so that although a man kill another in his defence, or kill one per infortuntun’,4 without any intent, yet it is felony, and in such case he shall forfeit his goods and chattels, for the great regard which the law hath of a mans life; But if theeves come to a mans house to rob him, or murder, and the owner or his servants kill any of the theeves in defence of himself and his house, it is no felony, and he shall lose nothing, and therewith agreeth 3 Edw. 3. Coron. 303, & 305. & 26 Ass. pl. 23. So it is holden in 21 Hen. 7. 39. every one may assemble his friends or neighbours to defend his house against violence: But he cannot assemble them to goe with him to the Market or elsewhere to keep him from violence: And the reason of all the same is, because domus sua cuique est tutissimum refugium.5
2. It was resolved, that when any house is recovered by any real Action, or by Ejectione firmae,6 the Sheriff may break the house to deliver possession to the demandent or Plaintiff for the words of the Writ are, Habere facias seisinam,7 or possessionem, &c.8 and after Judgment it is not the house in right and judgment of Law of the tenant or defendant.
3. In all Cases when the King is party, the Sheriff (if the doors be not open) may break the parties house, either to arrest him, or to doe execution of the Kings process, if otherwise he cannot enter. But before he break it, he ought to signify the cause of his coming, and to make request to open doors; and that appeareth by the Statute of Westm. 1. c. 17. (which is but an affirmance of the Common Law) as it hereafter appeareth, for the Law without default in the owner abhorre destruction or breaking of any house which is for the habitation and safety of a man, by which great damage and inconvenience may follow to the party, when no default is in him; for perhaps he doth not know of the process, which, if he had notice of it is presumed that he will obey it, and that appeareth in 18 Edw. 2. Execut. 252 where it is said, That the Kings Officer who cometh to doe execution, &c. may open the doors which are shut, and break them, if he may not have the keys; which proveth, that he ought first to demand them: 17 Edw. 3. 16. J. hurteth R. so as he is in danger of death, J. flieth, and thereupon Hue and Cry is made, J. getteth into the house of T. those who pursue him, if the house be kept and defended with force (which proveth that first request ought |[92 a] to be made) may lawfully break the house of T. for it is at the Kings suit. 27 Ass. p. 66. The Kings Bailiff may distrain for issues in a Sanctuary, 27 (28) Ass. p. 35. By force of a capias9 upon indictment of Trespass the Sheriff may break his house to arrest the party; but in such Case, if he break the house when he may enter without breaking it, (that is, on request, or if he may open the door without breaking) he is a trespasser, 41 Ass. 17. upon issue joyned on a traverse of an Office in Chancery, Venire facias10 was awarded returnable in the Kings Bench, without mentioning non omittas propter aliquam libertatem;11 yet for as much as the King is party, the Writ of itself is non omittas propter aliquam libertatem, 9 Edw. 4. 9. That for felony, or suspicion of felony, the Kings Officer may break the house to apprehend the felon, and that for two reasons: 1. For the Commonwealth, for it is for the Commonwealth to apprehend felons. 2. In every felony the King hath interest, and where the King hath interest there the Writ is non omittas propter aliquam libertatem; and so the liberty orprivilege of the house doth not hold against the King.
4. In all Cases when the door is open the Sheriff may enter the house, and do execution at the suit of any Subject, either of the body, or of the goods; and so may the Lord in such case enter the house to distrain for his rent, or service, 38 Hen. 6. 26. a. 8 Edw. 2. Distr. 21 & 33 Edw. 3. Avow. 256. the Lord may distrain in the house, although he holds lands in which he may distrain. Vide 29 As. 49. But the great question in this Case was, if by force of a Capias or Fieri Facias12 at the suit of the party the Sheriff after request made to open the door, and denial made, may break the Defendants house to doe execution if the door be not opened. And it was objected, That the Sheriff had well do it for divers causes: 1. Because it is by process of Law; and it was said, That it would be granted that a house is not a liberty, for if a Fieri fac. or a Capias be awarded to the Sheriff at the suit of a common person, and that he make a mandate to the Baily of a liberty who hath return of Writs, that nullum dedit responsum13 in this Case another Writ shall issue with non omittas propter aliquam libertatem yet (it will be said on the other side) that he shall not break the defendants house, as he shall doe of another liberty; As in the county of Suffolk there are two liberties, one of S. Edmund Bury, and the other of S. Etheldred of Ely, put case a Capias comes at the suit of A., to the Sheriff of Suffolk to arrest the body of B. the Sheriff maketh a mandate to the Bailiff of the liberty of S. Etheldred, who maketh no answer, in this Case the Plaintiff shall have a Writ of non omittas by force at which he may arrest the Defendant within the liberty of Bury, although that no fault be in him: 2. Admit it be a liberty, the Defendant himself shall not take advantage of a liberty: As |[92 b] if the Bailiff of a liberty be Defendant in any Action, and process of Capias or Fieri facis come to the Sheriff against him, the Sheriff shall execute the process against him, for a liberty is always for the benefit of a stranger to the Action. 3. For necessity the Sheriff shall break the Defendants house after a denial as is aforesaid, for at the Common Law a man shall not have any execution for debt, but only of the Defendants goods. Put case then the Defendant will keep all his goods in his house, and so the Defendant by his own act shall prevent not onely the Plaintiff of his just and true debt, but it shall be also a great imputation to the Law, that there should be so great defect in it, that in such Case the Plaintiff by such shift without any default in him should be barred of his execution. And the Book in 18 Edw. 2. Execute 252. was cited to prove it, where it is said That it is not lawful for any one to disturb the execution of the Kings Officer, who cometh to execute the Kings process; for if a man might stand out in such manner, a man shall never have execution; but there it appeareth (as hath been said) that there ought to be request made before the Sheriff break the house. 4. It was said, that the Sheriff is an Officer of great authority, in whom the law reposeth great trust and confidence, and are of sufficiency to answer all wrongs which shall be done; And they have custodiam Comitatus,14 and therefore it shall not be presumed that they will abuse the house of any one by colour of doing their office in execution of the Kings Writs, against the duty of their office, and their Oath also: But it was resolved, That it is not lawful for the Sheriff (upon request made and denial) at the suit of a common person, to break the Defendants house scil. to execute any process at the suit of any Subject, for thereof would follow great inconvenience that men in the night as in the day should have their houses (which are their Castles) broken by force of which great damage and mischief may follow, for by colour thereof, upon a feigned suit, the house of any man at any time might be broken when the Defendant might be arrested elsewhere, and so men should not be in safety or rest in quiet in their own houses: And although the Sheriff be an Officer of great authority, and trust, yet it appeareth by experience, that the Kings Writs are executed by Bailiffs, persons of little or no value: And it is not to be presumed, that all the substance a man hath is in his house, nor that a man will lose his liberty, which is so inestimable, if he hath sufficient to satisfy his debt. And all the said Books, which prove, that when the process toucheth the King, that the Sheriff may break the house, implies that at the suit of the party, the house may not be broken, otherwise the addition (at the suit of the King) should be vain and frivolous. And with this Resolution agreeth the Book in 9 (13) E. 4. 9. and the express difference there appeareth between the Case of felony, which (as hath been said) concerneth the Commonwealth, and the suit |[93 a] of any other subject, which is for the particular interest of the party, as there it is said in 18 El. 4. 4. a. by Littleton and all his Companions it is resolved, That the Sheriff cannot break the Defendants house by force of a Fieri Facias,15 but he shall be a trespasser by the breaking, and yet the execution which he then doth in the house is good. And it was said, that the said book of 18 Edw. 2. was but a Nota, and not any judicial Judgment, and it doth not appear at whose suit the Case is intended, but it is an observation or collection (as it seemeth) of the Reporter. And if it be of a Quo minus16 or other Action in which the King is party, or is to have benefit, the Book is good Law.
5. It was resolved, That the house of any one is not a Castle or privilege but for himself, and shall not extend to protect any person who flieth to his house, or the goods of any other which are brought and conveyed into his house, to prevent a lawful execution, and to escape the ordinary process of Law; for the privilege of his house extends onely to him and his family, and to his own proper goods, or to those which are lawfully and without fraud or covin there; And therefore in such Cases after denial upon request made, the Sheriff may break the house; and that is proved by the Statute of West. 1. c. 17. by which it is declared, That the Sheriff may break a house or Castle to make Replevin, when the goods of another which he hath distrained are by him conveyed to his house or Castle, to prevent the owner to have a Replevin of his goods; which Act is but an affirmance of the Common Law in such points. But it appeareth there, that before the Sheriff in such Case break the house, that he is to require the goods to be delivered to him; for the words of the Statute are, After that the castle shall be solemnly demanded by the Sheriffs &c.
6. It was resolved, admitting that the Sheriff after denial made may break the house, as the Plaintiffs Councel pretend he may, then it followeth that he hath not done his duty, for it doth not appear, that he made any request to open the door of the house. Also the Defendant, as this Case is, hath done that which he may well doe by the Law, scil. to shut the door of his own house.
Lastly, the general allegation, praemissorum non ignarus,17 was not sufficient in this Case where the notice of the premises is so material; but in this cause it ought have been certainly, and directly alledged, for without notice of the process of the Law, and of the coming of the Sheriff with the Jury to execute it, the shutting of the door of his own house was lawful. And Judgment was given against the Plaintiff.
(1598) Hilary Term, 40 Elizabeth I In the Court of Common Pleas.
First Published in the Reports, volume 5, page 99b.
Ed.: The Commissioners of Sewers assessed Carter a fee of 8s for every acre he had adjoining the River Thames, to pay for maintaining the bank from collapsing and causing floods. They assessed him because there was an ancient prescriptive obligation of the holder of his lands to maintain the bank, but there were many landowners whose lands would be flooded, from whom the commissioners did not assess any fees at all. Coke asserts that Justice Walmsley in the Common Pleas held even though the prescription existed, the statute required that the commissioners should have assessed the costs to everyone who benefitted from the flood prevention, not just the bank-owner. This case is one of the earliest examples of judicial review of an administrative act and often thought to be a foundation of modern administrative law. See also Case of the Isle of Ely, p. 378.
In Replevin in the Common Pleas by Rooke against Withers; The Defendant justified the taking by authority of Commission of Sewers directed to B. S. and others; to survey all walls (prout1 in the Commission) in the River of Thames, in the Country of Kent and Essex, because that one Carter, &c. was assessed to every acre for repairing of a Bank, &c. for the not-paiment of which he took the distress; To which the Plaintiff replied, Of his ownwrong, without such cause. And the Jurors found the Commission and the Statutes of 6 Hen. 6. cap. 5. & 23 Hen. 8. cap. 5. And that the Commissioners did impanel a Jury to inquire of defaults, who presented that 7 acres of meadow in which the distress was taken, was next adjoining to the River; and that the bank of the River was adjoining to the said 7 acres, for which they taxed Carter to pay 8s. for every acre: And the Jury further found, that the occupiers of the said 7 acres have used always to repair the said bank, sometimes voluntarily, and sometimes by presentment. And further that divers other persons had lands to the quantity of 800 acres within the same level, and subject to drowning, if the said bank be not repaired: And if this assessment of the owner of the land next adjoining onely, without any assessment of the other who had lands subject to the like danger of drowning, was lawful or not, was the Question. And in this Case three Points were resolved.
1. That the finding of the repairing, &c. by the occupiers of the said 7 acres was not material, because the occupiers might be tenants at will, or other particular tenants, who by their Act cannot binde him who hath the inheritance.
2. That the Commissioners ought to tax all who are in danger of being endamaged by the not repairing equally, and not he who has the land next adjoining to the River onely; for the statute of 6 Hen. 6. cap. 5. in which |[100 a] the Commission of Sewers is formed and specified, hath precise words in the same Commission, That no person of any estate or condition shall be spared. Ita quod aliquibus tenentibus terrarum sive tenementorum, &c. diviti vel pauperi, vel alteri cujuscunque conditionis, statûs, vel dignitat’ fuerit, qui defensionem, commodum, & salvationem per praed’ Wallias, fossata, guttera, pontes, calceta, & gurgites, &c. habent vel habere poterint nullatenus parcatur in hac parte.2 And if the Law shall be otherwise, inconvenience may follow, for it may be that the rage and force of the water shall be so great, that the value of the land adjoining will not serve to make the banks, And therefore the Statutes will have all which are in danger and who are to take commodity by the making of the banks, to be contributory; for qui sentit commodum sentire debet & onus:3 and the said Statutes require equality, which well agreeth with the rule of Equity: see the Case of Bankrupts in the second Part of my Reports. Et vide 35 Hen. 8. Br. tit. Testam. 19. 4 Edw. 3. Assise 178. 11 Hen. 7. 12. 29 Edw. 3. 39. & Sir William Herbert’s Case in the third Part of my Reports; Cases of equality grounded upon reason and equity, Ipsae etenem leges cupiunt ut jure regantur;4 And notwithstanding the said words of the said Commission give authority to the Commissioners to do according to their discretions, yet their proceedings ought to be limited and bound with the rule of reason and Law. For discretion is a science or understanding to discern between falsity and truth, between right and wrong, and between shadows and substance, between equity and colourable glosses and pretences, and not to doe according to their wills and private affections; for as one saith, Talis discretio discretionem confundit.5 And Walmesley, Justice held, and it was not denied by any, That if the owner of the land were bound by prescription to repair the River bank, that yet upon such Commission awarded, the Commissioners ought not to charge him onely, but ought to taxe all who had land in danger: And to this purpose the Statutes were made; for otherwise it might be that all the land shall be drowned before that one person onely could repair the bank, and that appeareth by the words of the Statutes: for which cause Judgment was given for the Plaintiff.
(1602) Trinity Term, 44 Elizabeth I In the Court of Common Pleas.
First Published in the Reports, volume 5, page 117a.*
Ed.: Cole owed £8 10s to Pinnel, and paid £5 2s. 2d. Cole claimed Pinnel accepted the lesser amount in satisfaction of the whole debt. Pinnel sued. The court held that, although a debtor can choose the terms of repayment, and the debt may be satisfied by something of value like a horse, a payment for a lesser amount cannot satisfy the debt.
Pinnel brought an Action of Debt upon an Obligation against Cole of 16 l. for the paiment of 8 l. 10 s. the 11 day of Nov. 1600. The Defendant pleaded, that he at the instance of the Plaintiff, before the said day, scil. 1 Octob. 44. apud West solvit querenti he paid to the Plaintiff, 5l. 2s. 2d. quas quidem 5l. 2s. 2d.,1 the Plaintiff accepted in full satisfaction of the 8 l. 10 s. And it was resolved by the whole Court, That paiment of a lesser summe in satisfaction of a greater, cannot be any satisfaction for the whole, because it appeareth to the Judges that by no possibility, a lesser summe can be a satisfaction to the Plaintiff for a greater summe: But the gift of a Horse, Hawk, &c. in satisfaction is good. For it shall be intended that a Horse, Hawk, &c. shall be more beneficial to the Plaintiff than the money in respect of some circumstance, or otherwise the Plaintiff would not have accepted of it in satisfaction. But when the whole summe is due, by no intendment the acceptance of parcel can be a satisfaction to the Plaintiff: But in the Case at Bar it was resolved, that the paiment and acceptance of parcel before the day in satisfaction of the whole, shall be a good satisfaction in regard of circumstance of time; for peradventure parcel of it before the day, shall be more beneficial to him than the whole at the day, and the value of the satisfaction is not material: So if I be bounden in 20 l. to pay you 10 l. at Westminster and you request me to pay you 5 l. at the day at York, and you will accept it in full satisfaction of the whole 10 l. it is a good satisfaction |[117 b] for the whole: for the expenses to pay it at York, is sufficient satisfaction: But in this Case the Plaintiff had Judgment for the insufficient pleading; for he doth not plead that he had payed the 5 l. 2 s. 2 d. in full satisfaction (as by the Law he ought) but pleaded the paiment of part generally; and that the Plaintiff had accepted of it in full satisfaction. And always the manner of tender and of the paiment, shall be directed by him who made the tender or paiment, and not by him who accepteth it. And for this cause Judgment was given for the Plaintiff.
See Reader 36 Hen. 6. Barre 37. in debt upon an Obligation of 10 l. the defendant pleaded, that one F. was bound by the said deed with him, and each in the whole, and that the Plaintiff had made an acquittance to F. bearing date before the obligation, and delivered after, by which acquittance he did acknowledge himself to be paid 20 s. in full satisfaction of the 10 l. And it was adjudged a good barre; for if a man acknowledge himself to be satisfied by deed, it is a good barre, without any thing received. Vide 12 Rich. 2. Barre 243. 26 Hen. 6. Barre 37. 10 Hen. 7, &c.
|[125 a] The Case de Libellis Famosis.
(1605) Easter Term, 3 James I In the Court of Star Chamber.
First Published in the Reports, volume 5, page 125a.
Ed.: Coke, as Attorney General, prosecuted in the Star Chamber the publisher of poems making fun of two Archbishops of Canterbury.Thisopinion delineates the standards for a libel. A person may libel another person by harming their reputation, even by saying things that are true, whether the person is a private or public figure, and whether the person is dead or alive. A libeller may be punished by fine, imprisonment, or the amputation of the ears. See also the Lord Cromwell’s case, at p. 105 and Lamb’s case, p. 313.
In the Case of L. P. in the Starre-chamber this Term, against whom the Attorney General proceeded ore tenus1 on his own confession, for composing and publishing an infamous Libel in verse, by which John Archbishop of Canterbury (who was a Prelate of singular piety, gravity, and learning, now dead) by circumlocutions and descriptions, and not in express terms; and Richard Bishop of Canterbury who now is, were traduced and scandalized: In which these Points were resolved:
1. That every Libel which is called famosus Libellus, seuinfamatoriascriptura,2 is made either against a private man, or against a Magistrate or publick person. If it be against a private man it deserveth a severe punishment, for although the Libel be made against one, yet it inciteth all those of the same family, kindred, or society to revenge, and so may be the cause of per consequens to quarrels and breach of the peace, and may be the cause of shedding of blood, and of great inconvenience: if it be against a Magistrate, or other publicperson, it is a greater offence; for it concerneth not onely the breach of the peace, but also the scandal of government; for what greater scandal of government can there be than to have corrupt or wicked Magistrates to be appointed and constituted by the King to govern his Subjects under him? And greater imputation to the State cannot be, than to suffer such corrupt men to sit in the sacred seat of Justice, or to have any medling in or concerning the administration of Justice.
2. Although the private man or Magistrate be dead at the time of the making of the Libel, yet it is punishable for in the one Case it stirreth up others of the same family, blood, or society to revenge, and to breach the peace and in the other the Libeller doth traduce and slander the State and government, which dieth not.
3. A Libeller (who is called famosus defamator) shall be punished either by indictment at the Common Law, or by Bill, if he deny it, or ore tenus upon his confession |[125 b] in the Starre-chamber, and according to the quality of the offence he may be punished by fine or imprisonment, and if the Case be exorbitant, by Pillory and loss of his Ears.
4. It is not material whether the Libel be true, or whether the party against whom the Libel is made, be of good or ill fame; for in a setled state of Government the party grieved ought to complain for every injury done him in an ordinary course of Law, and not by any means to revenge himself, either by the odious course of libelling, or otherwise: He who killeth a man with his sword in fight is a great offender, but he is a greater offender who poisoneth another, for in the one case he who is the party assaulted may defend himself, and knoweth his adversary, and may endeavour to prevent it: But poisoning may be done so secret that none can defend himself against it; for which cause the offence is the more grievous, because the offender cannot easily be known; And of such nature is libelling, it is secret, and robbeth a man of his good name, which ought to be more precious to him than his life, & difficillimum est invenire authorem infamatoriae scripturae;3 because that when the offender is known, he ought to be severely punished. Every infamous libel, aut est in scriptis, aut sine scriptis;4 a scandalous libel in scriptis5 when an Epigram, Rhime, or other writing is composed or published to the scandal or contumely of another, by which his fame and dignity may be prejudiced. And such libel may be published, 1. Verbis aut cantilenis:6 As where it is maliciously repeated or sung in the presence of others. 2. Traditione,7 when the libel or copy of it is delivered over to scandalize the party. Famosus libellus sine scriptis8 may be, 1. Picturis, as to paint the party in any shameful and ignominious manner. 2. Signis, as to fix a Gallows, or other reproachful and ignominious signs at the parties door or elsewhere. And it was resolved, Mich. 43 & 44 Eliz. in the Starre-chamber in Halliwood’s Case, That if anyone finds a Libel (and would keep himself out of danger), if it be composed against a private man, the finder either may burn it, or presently deliver it to a Magistrate: But if it concerns a Magistrate, or other public person, the finder of it ought presently to deliver it to a Magistrate, to the Intent that by examination and industry, the Author may be found out and punished. And libelling and calumniation is an offence against the Law of God. For Leviticus 17, Non facias calumniam proximo. Exod. 22 ver. 28, Principi populi tui non maledices. Ecclesiastes 10, In cogitatione |[126 a] tua ne detrahas Regi, nec in secreto cubiculi tui diviti maledices, quia volucres coeli portabunt vocem tuam, & qui habet pennas annuntiabit sententiam. Psal. 69. 13, Adversus me loquebantur qui sedebant in porta, & in me psallebant qui bibebant vinum. Job. 30. ver. 7. & 8, Filii stultorum & ignobilium, & in terra penitus non parentes, nunc in eorum canticum versus sum, & factus sum eis in proverbium.9 And it was observed, that Job, who was the Mirrour of patience, as appeareth by his words, became quodammodo10 impatient when Libels were made of him; And therefore it appeareth of what force they are to provoke impatience and contention. And there are certain marks by which a Libeller may be known: Quia tria sequuntur defamatorem famosum:11 1. Pravitatis incrementum, increase of lewdness: 2. Bursae decrementum, decrease of money, and beggary: 3. Conscientiae detrimentum, shipwreck of conscience.
[1. ][Ed.: For why do I labor, if not that the truth in every question be unraveled; to the speakers of Truth, I gladly yield, (Cicero, Tusculan Disputations, 3.46 & 3.51).]
[2. ][Ed.: Natural and artificial truths made by art are finite; but there is no end to falseness, and error is immense.]
[3. ][Ed.: A foul sauce requires seasoning; truth is of itself pleasing, beauty is of itself comely. Falsehood requires cosmetics; ugliness needs adornment.]
[4. ][Ed.: That you refuse to learn what you ought to know should not be accounted ignorance but contempt.]
[5. ][Ed.: We are ignorant of many things which would not be hidden if we were familar with the reading of ancient authors.]
[1. ][Ed.: that is to say.]
[2. ][Ed.: at the aforesaid time when etc.]
[3. ][Ed.: We command you etc. that you cause the aforesaid Ursula to come before any of our justices assigned to keep the peace in the aforesaid county, or cause any of you to find sufficient mainprise, that the said Ursula should not cause or procure to be caused any damage and harm etc. to the aforesaid John Lane. And if she [they] should refuse this, then cause [the person] so refusing to be led to our nearest prison in the aforesaid county, etc., there to remain until he will do this freely, etc.]
[4. ][Ed.: namely, before any of the Justices, etc.]
[5. ][Ed.: by the way.]
[6. ][Ed.: Query.]
[7. ][Ed.: And if they refuse to do this, etc.]
[1. ][Ed.: “Hallage” is a tax on goods sold in a market.]
[2. ][Ed.: Note, several editions translate this as “corpus cum causa,” literally, “body with cause,” a variant name for the writ of habeas corpus, a writ directing an officer to present a prisoner to determine the legality of the prisoner’s detention, sometimes used as a means of review of another court’s orders. The 1658 edition prints this as “habeas corpus.”]
[3. ][Ed.: infinitely.]
[4. ][Ed.: Writ directing a lower court to proceed to judgment.]
[5. ][Ed.: for the public good.]
[6. ][Ed.: for private profit.]
[7. ][Ed.: Evil persons hate to offend for dread of punishment.]
[1. ][Ed.: No free man shall be imprisoned;]
[1. ][Ed.: and likewise concerning similar things, etc.]
[1. ][Ed.: went to the aforesaid house, the door of the aforesaid house being open, and the aforesaid goods then being in the aforesaid house,]
[2. ][Ed.: being not unaware of the foregoing,]
[3. ][Ed.: the door of the aforesaid house then being open, closed [the door] against the sheriff and jurors aforesaid.]
[4. ][Ed.: by misfortune.]
[5. ][Ed.: everyone’s house is his safest refuge (“Every man’s home is his castle.”)]
[6. ][Ed.: Writ of ejectment, or removal from land.]
[7. ][Ed.: cause [the plaintiff] to have seisin.]
[8. ][Ed.: [cause the plaintiff to have] possession etc.]
[9. ][Ed.: Writ of capias; a predeccessor to the arrest warrant.]
[10. ][Ed.: Writ acting as a summons to appear.]
[11. ][Ed.: do not omit on account of any liberty.]
[12. ][Ed.: Writ of execution for collection of a debt (literally, “that you cause to be made.”).]
[13. ][Ed.: gave no answer.]
[14. ][Ed.: custody of the county.]
[15. ][Ed.: Writ to execute a judgment.]
[16. ][Ed.: Writ brought against delinquent debtor of the King (literally, “by which the less.”).]
[17. ][Ed.: being not unaware of the foregoing.]
[1. ][Ed.: as.]
[2. ][Ed.: So that no tenants of lands or tenements etc., rich or poor, nor any persons, of whatever condition, estate, or dignity, who have or could have any protection, benefit and safeguard by the aforesaid walls, ditches, gutters, bridges, causeways and weirs, shall be in any way spared in this behalf.]
[3. ][Ed.: he who takes the benefit should also bear the burden:]
[4. ][Ed.: And the laws desire that they be ruled by right;]
[5. ][Ed.: Such a discretion confounds discretion.]
[* ]The initial pleadings in this case are recorded at 44 Eliz. Rot. 501.
[1. ][Ed.: which is precisely 5L. 2s. 2d.]
[1. ][Ed.: Literally, “by word of mouth,” a case heard ore tenus despite a confession determines liability, considering the available defenses as if they had been raised in demurrer.]
[2. ][Ed.: Scandalous libel or scandalous writing.]
[3. ][Ed.: and has troubled himself and comes across the publisher of inflammatory writings.]
[4. ][Ed.: either is in writing, or without writing.]
[5. ][Ed.: in writing.]
[6. ][Ed.: Words or songs.]
[7. ][Ed.: Communication (literally “handing over” or “passing on”).]
[8. ][Ed.: A scandalous libel without writing.]
[9. ][Ed.: Thou shalt not defraud thy neighbor (Lev. 17). Thou shalt not curse the leader of thy people (Exod. 22:8). Curse not the King, No, not in thy thought and curse not the rich in thy bed chamber: for a bird of the air shall carry the voice, and that which hath wings shall tell the matter (Eccles. 10). They that sit at the gate speak against me, and I was the song of drunkards (Psal. 69:13). They were the children of fools, Yea, children of base men: they were viler than the earth. And now I am their song, I am their byword (Job 30:7,8).]
[10. ][Ed.: in a manner.]
[11. ][Ed.: because three things follow from scandalous libel:]