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.

Rooke’s Case.

(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.

[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.]