The Online Library of Liberty

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• 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.

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.

[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.]