Front Page Titles (by Subject) Penal Statutes. - Selected Writings of Sir Edward Coke, vol. I
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Penal Statutes. - 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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(1605) Hilary Term, 2 James I.
Before all the Justices of England.
First Published in the Reports, volume 7, page 36b.
Ed.: Queen Elizabeth issued a grant that would allow its recipient to be free of the burdens of a penal statute, giving the grant before there was a judgment against the recipient for violating the statute. The grant also allowed the recipient to give similar dispensations to others. This is contrary to the law and will not be allowed, a view that would be reflected in the seventeenth century in England’s Bill of Rights. This case is an important illustration of common law limits on Royal authority and is essentially an enforcement of separation of powers between the Parliament and the Crown. Look for wonderful metaphors on the King’s powers in law, and their limits.
This Term upon Letters directed to the Judges to have their Resolution concerning the validity of a Grant made by Queen Elizabeth, under the great Seal, of the penalty and benefit of a penal Statute, with power to dispense with the said statute, and to make a warrent to the Lord Chancellor, or Keeper of the great Seal, to make as many dispensations, and to whom he pleased; And upon great Consideration and deliberation by all the Judges of England, It was Resolved, That the said grant was utterly against Law. And in this case these points were Resolved, 1. That when a Statute is made by Parliament for the good of the Commonwealth, the King cannot give the penalty, benefit, and dispensation of such Act to any subject; Or give power to any subject to dispense with it, and to make a warrant to the great Seal for Licences in such case to be made: For when a Statute is made pro bono publico,1 and the King (as the head of the Commonwealth, and the fountain of Justice and Mercy) is trusted the whole Realm with it; this confidence and trust is so inseparably joined and annexed to the person of the King in so high a point of Sovereignty, that he cannot transfer the same to the disposition or power of any private person, or to any private use: for it was committed to the King by all his Subjects for the good of the Commonwealth. And if he may grant the penalty of one Act, he may grant the penalty of Two, and so in infinitum.2 And such grant of a penalty was never seen in our Books. But it is true, the King may (upon any cause moving him in respect of time, place, or person, &c.) make a Non Obstante3 |[37 a] to dispense with any particular person, that he shall not incur the penalty of the Statute, and therewith agree our books. But the King cannot commit the Sword of his Justice, or the Scale of his Mercy, concerning any penal Statute to any subject, as is aforesaid. 2. It was also Resolved, That the penalty of an Act of Parliament cannot be levied by any grant of the King, but only according to the purpose and purview of the Act: for the Act which gives the penalty ought to be followed only in the prosecution and levying thereof: and great inconveniences would thereon follow, if penal Laws should be transferred to subjects. 1. Justice thereby should be scandalized; for when such Forfeitures are granted, or promised to be granted before they are recovered, the same is the cause of a more violent and undue proceeding. 2. When it is publicly known, that the Forfeiture and penalty of the Act of Parliament is granted, it is a great cause that the Act itself is not executed; for the Judge and Jurors, and every other, is thereby discouraged. 3. Thereupon would follow, that no penalty should by any Act of Parliament be given to the King, but limited to such uses with which the King could not dispense. And hereupon divers who had sued to have the benefit of certain penal Laws, were upon this Resolution denied. And the Certificate of all the Judges of England concerning such grants of penal Laws and Statutes was in these words. “May it please your lordships, we have (as we are required by your honourable Letters of the 21st of October last) conferred and considered amongst ourselves (calling to us his Majesty’s Counsel learned) of such matters as were thereby referred unto us, and have thereupon, with one consent, resolved for Law and conveniency as followeth: First, That the prosecution and execution of any penal Statute cannot be granted to any, for that the Act being made by the policy and wisdom of the Parliament for the general good of the whole Realm, and of trust committed to the King, as to the head of Justice, and of the weal public, the same cannot by Law be transferred over to any subject; neither can any penal Statute be prosecuted or executed by his Majesty’s grant, in other manner or order of proceeding, than by the Act itself is provided and prescribed: Neither do we find any such grants in any former ages: And of late years, upon doubt conceived, that penal Laws might be sought to be granted over, some Parliaments have forborn to give forfeitures to the Crown, and have disposed thereof to the relief of the Poor, and other charitable uses, which cannot be granted or employed otherwise. We are also of opinion, That it is inconvenient, that the Forfeitures upon penal Laws or others oflikenature. should be granted to any other before the same be recovered or vested in his Majesty by due and lawful proceeding; for that in our experience |[37 b] it maketh the more violent and undue proceeding against the subject, to the scandal of Justice, and the offence of many. But if by the industry or diligence of any, there accrueth any benefit to his Majesty, after the recovery, such have been rewarded out of the same at the King’s good pleasure, &c. Dated 8 November, 1604.” And to this Letter all the Judges of England set their hands.
Part Eight of the Reports
The Eighth Part of Coke’s Reports was published in 1611. It was originally entitled La huictime part des Reports de Sr. Edvv. Coke. Chevalier, Chiefe Justice del Common Banke: des divers resolutions & jugements donez sur solennes arguments & avec grand deliberation & conference des tresreverends juges & sages de la ley, des cases en ley queux ne fueront unques resolus ou adjudgez par devant: Et les raison & causes des dits resolutions & jugements: publie en le neufme an de treshaut & tresillustre Jaques roi Dengl. Fr. & Irel. & de Escoce le 44. Le Fountaine de tout Pietie & Justice, & la vie de la Ley. In English, The Eighth Part of the Reports of Sir Edward Coke, Knight, Lord Chief Justice of Common Pleas, of divers Resolutions and Judgments given upon solemn Arguments, and with great deliberation and Conference of the reverend Judges and Sages of the Law, of Cases in law which were never Resolved or Adjudged Before: and the Reasons and Causes thereof. Published in the Ninth year of the most high and Most Illustrious James, King of England, France, and Ireland, and of Scotland the 44., the Fountain of all Justice, and the life of the Law. This rather long part surveys a broad range of cases, particularly presenting cases on the privileges of nobility, the privileges of the City of London and the regulation of professions, although there are cases dealing with issues of property and inheritance.
Epigrams from the Title Page:
Magna Charta, cap. 29.
Nulli vendemus, nulli negabimus, aut differemus justitiam aut rectum.1
Westm̃ 1. cap. 1.
Rex praecipit ut pax Sacrosanctae Ecclesiae, & Regni solidè conservetur & colatur in omnibus, & quod Justitia singulis, tam pauperibus quam divitibus, administretur, nulla habita personarum ratione.2
[1. ][Ed.: for the public good.]
[2. ][Ed.: infinitely.]
[3. ][Ed.: Notwithstanding; an order relieving a person of a power or a liability.]
[1. ][Ed.: To no one shall be sell, to no one shall we deny or delay, justice or right.]
[2. ][Ed.: The King commands that the peace of Holy Church and the realm be firmly preserved and kept in all respects, and that justice be administered to all, both poor and rich, with no respect of persons.]