Front Page Titles (by Subject) Foster's Case. - Selected Writings of Sir Edward Coke, vol. I
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Foster’s Case. - 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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(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.
[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.]