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.

(Preface) To The Reader.

Since the Publishing of the Fifth Part of my Reports, a good Student of the Common Laws desired to be satisfied in one special Point in my Epistle to the second Part of my Reports,2 where I affirmed, That if the ancient Laws of this noble Island, had not excelled all others (speaking of humane) it could not be but some of the several Conquerors and Governors thereof, that is to say, the Romans, Saxons, Danes or Normans; and especially the Romans, (who as they justly may) do boast of their Civil Laws, would (as every of them might) have altered or changed the same. And (saith he) some of another Profession are not perswaded, that the Common Laws of England are of so great Antiquity, as there superlatively is spoken. True it is, that the said Period was mine own Opinion, but not out of mine own Head; for it is the Judgment of that most Reverend and Honourable Judge, Sir John Fortescue Knight, Chief Justice of England in the Reign of King Henry the Sixth; who (besides his profound knowledge in the Law, being also an excellent Antiquary) in his Book intituled, De Politica administratione & Legibus Civilibus florentissimi Regni Angliae Commentarius,3cap. 17. saith thus:4The Realm of England was first inhabited of the Britans, next after them the Romans had the Rule of the Land, and then again the Britans possessed it; after whom the Saxons invaded it, who changing the Name thereof, did for Britain, call it England: after them, for a certain time, the Danes had the Dominion of the Realm, and then Saxons again, but last of all the Normans subdued it, whose Descent continueth in the Government of the Kingdom at this present. And in all the times of these several Nations, and of their Kings, this Realm was still ruled with the self same Customs that it is now governed withal; which if they had not been right good, some of these Kings, moved either with Justice, or with Reason or Affection, would have changed them, or else altogether abolish them, and especially the Romans, who did judge all the rest of the World by their own Laws. Likewise would other of the aforesaid Kings have done, which by the Sword only possessing the Realm of England, might by the like Power and Authority have extinguished the Laws thereof. And touching the Antiquity of the same, neither are the Roman Civil Laws, by so long continuance of ancient times confirmed; nor yet the Laws of the Venetians, which above all other are reported to be of most Antiquity, forasmuch as their Island in the beginning of the Britans was not then inhabited, as Rome then also unbuilded, neither the Laws of any Nation of the World which worshippeth God, are of so old and ancient years; whereof the contrary is not to be said nor thought, but that the English Customs are very good, yea of all other the very best.

And albeit, I had so good a Warrant for the said Assertion (for every Man that writes ought to be so careful of setting down truth, as if the Credit of his whole Work consisted upon the certainty of every particular period) yet was I right glad to hear of any exception, to the end that such as were not perswaded, might either be rightly instructed, and the Truth confirmed; or that I might upon true grounds be converted and the Error reformed: I desired that they would propose some Particulars, as many as they would (for Generalities never bring any thing to a conclusion.) At length (for this was remembred when I had almost forgotten it) their great desire was to see some Proofs, that the Common Law in these four particular Cases was before the Conquest, as now it is.

¶ First, That the Queen, being Wife to a King Regnant, was a person sole by the Common Law to sue and be sued, to give and take, &c. solely without the King.5

¶ Secondly, That a Man seised of Lands in Fee-simple, shall forfeit his Lands and Goods by Attainder of Felony by Outlawry, and that thereby his Heirs should be disinherited.

¶ Thirdly, That a Woman being attainted of Petty Treason, should be burnt.

¶ Fourthly, Whether the ancient Laws of England did permit any Appeal to Rome in Causes Spiritual or Ecclesiastical.

I had no sooner seen these Questions, but instantly I found direct and demonstrative Answers to the same. For the first, behold an ancient Charter made long before the Conquest, which followeth in these Words.

Our Lord Jesus Christ reigning for ever. I Aethelswith6 Queen of the Mercians by Gods Grant, with the Consent of my Ealdermen, will give by Grant to Cuthwolph my most faithful Servitor, a certain piece of Land, being part of my peculiar power (that is to say) a piece of Land of fifteen Manses, in a place which is called Laking, for his Obedience, and payable Mony in this manner, that is to say, a thousand five hundred Shillings of Silver and Gold, or fifteen hundred Sicles, that he may have, possess and enjoy at his pleasure, as long as he liveth; and after his end and limit of his days, he may leave it to whomsoever he will, for everlasting Power and perpetual Inheritance. And this my Donation is covenanted in the year of our Lords Incarnation DCCCLXVIII. the first Indiction. And we do charge all Secular Powers, in the Name of God the Father, the Son and the Holy Ghost, to observe the foresaid inviolate. These Witnesses subscribing and consenting thereunto, whose Names here recited are under-written. I Ethelred King of the West-Saxons have consented and subscribed. I Burghred King of the Mercians have consented and subscribed. I Aethelswitth Queen, have consented and subscribed, &c.

I have here set down another Charter of Record made also long before the Conquest, de verbo in verbum,7 for a direct Answer to the second.

I Ethelred by Gods Providence Emperor of all Albion, do grant to my welbeloved Servitor, whose Nobility of Parentage hath given Ulfric for Name, for the faithful Service wherewith he hath courteously served me, a certain parcel of Land, that is to say, two Manses and an half, in a place where the Inhabitants call Aet Dunmalton, in perpetual Inheritance, that he may well enjoy and prosperously possess the same, as long as he is seen to run the race of this Life with vital breath, and may leave the same to what Successor he please, after his departure from this transitory Life. Let the said Land situated in a certain Common be free from all wordly impediment, with all which are known to belong to the said place, as well in great matters as in small, in Fields, Pastures, Meadows, Woods; Expedition, building of Bridge and Castle being excepted. Such as shall diminish and violate this my Gift (which I wish may be far from the Minds of all faithful) let them have their part with them, of whom it shall be resounded, Depart from me ye cursed into everlasting fire, which is prepared for Sathan and his Angels, unless they do make amends by lawful satisfaction, obtaining Pardon by due Penance towards God. Whereas that which Mans Memory doth overpass, the diligent search of writing doth preserve. This is to be notified to the Readers, that the said Land came to the disposition of my right, by the crime of a certain Mans unspeakable Presumption, wherewith boldly and feloniously he hath not abhorred to incumber himself, which Man his Parents named Ethelsig, albeit he hath discredited his Name by a foul fault. And by me (as is aforesaid) the said Land is bestowed upon my reverend Servitor. The manner of whose fault we thought good to note here in English.

This was the Land forfeited at Dunmalton,8 that Ethelsig forfeited to King Ethelreds Hands. It was so then, that he stole Ethelwins Swine, who was Son to Ethelmere Ealderman. Then his Man did ride to him, and took the things stoln out of Ethelsigs House; but he burst out to the Woods, and Men outlawed him, and Men brought to King Ethelred his Lands and his Goods. Then gave he that Land to his servant Hawes for a perpetual Inheritance. And Wulfric, Son to Wulfrun, after had it of him in exchange for other Lands that pleased him better; and this was with the Kings leave, and with the Testimony of his Wise Men.

This Donation was made in the year from the Incarnation of our Lord DCCCCXCV the eighth Indiction, in the seventeenth year of the said King. This Charter was witten with the consent of them whose Names are here underwritten. I Ethelred King of Englishmen have constantly consented and ratified this Donation under the Sign of the Holy Cross. I Alfrick by Gods Grace elected unto the Archbishoprick of Canterbury, have established this Gift with the Sign of the Cross, &c.

Touching the Third,9 Caesar in his Commentaries, Lib. 6. p. 68. (who wrote before the Incarnation of Christ above 1600 years past) affirmeth, That if the Wife be suspected of the death of her Husband, Es si compertum est, igni, &c. interficiunt:10 that is, and if she be found guilty of the death of her Husband, which is Petty-Treason, the Wife is burnt to death, as she is (in that Case) at this day.

For the last, by an Act of Parliament holden in the tenth year of King Henry the Second, which was in Anno Domini 1164. it is enacted as followeth.

As concerning Appellations if any shall arise from the Archdeacon, they must proceed to the Bishop, from the Bishop to the Archbishop;11 and if the Archbishop do fail in doing Justice, it must lastly come to the King, that by his Precept the Controversie may be ended in the Archbishops Court, so that there ought not to be any proceeding farther without assent of the King. And that this amongst many other might not tast of Innovation, the Record saith, This Recognition or Record was made of a certain part of the Customs and Liberties of the Predecessors of the King, to wit, of King Henry his Grandfather, and of other Kings, which ought to be observed in the Kingdom, and held of all for the Dissentions and Discords often arising between the Clergy and our Lord the Kings Justices, and the Peers of the Realm; and all the Archbishops, Bishops, Abbots, Priors, Clergy, with the Earls, Barons, and all the Nobles, &c. have sworn and assuredly promised in the Word of Truth, with one consent to keep and observe the said Recognition toward the King and his Heirs in good sooth without evil meaning for ever.

But herein I perswaded my self, that every Man that had advisedly and with an equal mind read Caudries Case, published in my last Reports, would therewith in this point have been satisfied. And I must freely acknowledge, that I never expected, that any Divine would have attempted to have made such an Answer to that Case, as lately hath been published for two causes. First, for that it is (exceeding all bounds of Truth and Charity) full of Maledictions and Calumniations, nothing pertinent to the state of the Question. It becometh not Divines to be of fiery and Salamandrine Spirits; neither arebitter Invectives fomed out of an hot mouth, ever fretting it self upon the BitofD is contentment (the Seeds of Hatred, and means of making Controverversies immortal) beseeming the Lips of any man of that profession. Sure I am, that neither Quicksands having no stedfast ground, nor Quicksets of Brambles or Briers, are fit either for foundations, or for fences or defences, especially for him that usurpeth the sublime and broad spreading Name of The Catholick Divine.12 He that will make any Answer out of Conscience and Charity, to persuade the adverse Party, should repeat his Authorities, his Arguments, his Reasons and Categorically and Christianly answer the Matter ad idem,13 without any Invective against the person, whom his end is (or should be) to convert to his Opinion. Young Sophisters are wont to rail (and by thatmeanskeepthemselves from a Nonplus) when they are not able to answer the Argument inforced against them. Secondly, for that (as I published in my Epistle to the Reader) I dealt only with the Municipal Laws of England, as a subject proper to my Profession.

Expect not from me (good Reader) any reply at all, for I will not answer unto his Invectives, and I cannot make any reply at all to any part of his Discourse. True it is, that Calumniations be great Motives of Revenge, and consequently of breach of Charity, and of Gods Commandment: And therefore David prayed, Redime me a calumniis hominum, ut custodiam mandata tua.14 But it is far unbeseeming a man of my Vocation, Convitium convitio regerere:15 For that were Lutum luto purgare.16 And God hath left a president of a Judge, (who also was the first Reporter of Law) that he17 was Mitissimus super omnes homines qui morantur in terra;18 whose Example all Judges(though they be provoked every day) ought as much as they can to imitate and follow. This only will I say in this Cause, to him and of him, Ille didicit maledicere, & ego maledicta contemnere.19 The cause that I cannot reply is, for that I have only reported the Text, and as it were the very Voice of the ancient Laws of this Realm proved and approved in all successions of Ages, as well by universal consent in Parliaments, as by the Judgments and Resolutions of the Reverend Judges and Sages of the Common Laws, in their Judicial proceeding, which they gave upon their Oaths and Consciences.

I quoted the Year, the Leaf, the Chapter and other certain References for the ready finding thereof. And I could have added more, if the Report of that Case (being very long, as it is) should not have been drawn to an extraordinary Prolixity. But when I looked into the Book, ever expecting some Answer to the Matter; in the end I found the Author utterly ignorant (but exceeding bold, as commonly those qualities concur) in the Laws of the Realm, the only subject of the Matter in hand, but could not find in all the Book any Authority out of the Books of the Common Laws of this Realm, Acts of Parliament, or any legal and judicial Records quoted or cited by him for the Maintenance of any of his Opinions or Conceits: Whereupon (as in Justice I ought) I had Judgment given for me; upon a Nihil dicit,20 and therefore cannot make any replication. For his Divinity and Histories cited by him, only published in the said Book Ad faciendum populum,21 (but how truly and sincerely his own Conscience knowing, he thought it best for the salving of his Credit, to conceal his Name) I will not answer, for then, I should follow him in his Error, and depart from the state of the question, whose only subject is the Municipal Laws of this Realm.

I have (good Reader) brought this sixth Work to a Conclusion, and published it for thy private Instruction, for the publick good and quiet of many, and for preventing of Danger, the Daughter of Error. I confess that Englishmens Actions have been renowned in the Ear of the whole World, but far better done than they have been told, for want of a good History; and their Laws most excellent, but far better than they seem to any Eye (unless he can look in the visial line) for want of good Stile, and fair falling Sentences (which never were at so high a price as now they bear) but wise Men will embrace the secrets of Skill, though they be written with an evil Pen, and will not refuse precious Jewels, though they be brought in a plain and homely receptacle.

The reporting of particular Cases or Examples is the most perspicuous course of teaching, the right rule and reason of the Law; for so did Almighty God himself, when he delivered by Moses his Judicial Laws, Exemplis docuit pro Legibus,22 as it appeareth in Exodus, Leviticus, Numeri and Deuteronomi. And the Glossographers, to illustrate the Rule of the Civil Law, do oftenreduce the Rule into a Case, for the more lively expressing and true application of the same. In reading these and other of my Reports, I desire the Reader, that he would not read (and as it were swallow) too much at once; for greedy Appetites are not of the best digestion; the whole is to be attained to by parts, and Nature (which is the best Guide) maketh no leap, Natura non facit saltum.23 And true it is that Seneca saith, (as in another place I have said) Quo plus recipit animus, hoc se magis laxat.24 The Mind, the more it suddenly receiveth, the more it loseth, and freeth it self. A cursory and tumultuary reading doth ever make a confused Memory, a troubled Utterance and an uncertain Judgment. If these or any other of my Works may in any sort (by the goodness of Almighty God, who hath enabled me hereunto) tend to some discharge of that great Obligation of duty wherein I am bound to my Profession, and give directions for the establishment of Inheritances, Possessions and Interests in peace and quietness, I shall reap some fruits of the Tree of Life; for my desire shall be accomplished, and I shall receive sufficient Recompence for all my Labours; for their true and final end shall be effected.

• Accipe, quo semper finitur Epistola verbo,
• Et vigeant Jura, & (Lector amice) Vale.25

[2. ]Praef. i. Co. Rep.

[3. ][Ed.: Commentary on the political government and civil laws of the most flourishing realm of England.]

[4. ]Praef. 8 Co. Rep.

[5. ]Co. Lit. 133. a. Seld. Tit. of Honor 86. 20 E. 3. Fitz. Nonhability 9. 4 Co. 23.b. 9 Co. 47.a. Co.Lit.3.a. Plowden 231. a. Seld. Epinomis 11.

[6. ]Seld. Epinomis 11. This Ethelswith was Wife to Burgh, King of the Marches, and it appeareth that King Burgh was alive at this time, for he was a Witness to the Grant; and this Law continueth so to this day.

[7. ][Ed.: word for word.]

[8. ]Seld. Epinomis 11.

[9. ]See in the Preface to the third Part of my Reports out of Caesars Com. Disciplina Druydū in Britannia reperta, atque in Galliā translata, &c. Seld. Janus Angl. 17.

[10. ][Ed.: And if it is proved, she shall be put to death by fire, etc.]

[11. ]Seld. Janus Angl. 72. Rog. Hovenden f. 303.

[12. ]Father Parsons the Jesuit.

[13. ][Ed.: to the same effect.]

[14. ][Ed.: Rescue me from the calumnies of men, that I may keep thy commands.]

[15. ][Ed.: to make a reproach with a reproach.]

[16. ][Ed.: to clean dirt with dirt.]

[17. ]Moses. because it is for the defence of the realm.

[18. ][Ed.: The mildest above all men who dwelt on the earth.]

[19. ][Ed.: He denied speaking ill, and I condemn ill speaking.]

[20. ][Ed.: he says nothing, [a form of confession of the action].]

[21. ][Ed.: to make popular,]

[22. ][Ed.: He taught the laws with examples]

[23. ][Ed.: Nature does not make a leap.]

[24. ][Ed.: the more the mind takes in [suddenly], the more it loses it.]

[25. ][Ed.: Accept—the word with which a letter always ends—and let the laws flourish, and (dearreader) Farewell.]