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Part Eight of the Reports - 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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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
(Preface) Deo, Patriae, Tibi.3
That which I have written as you know (learned Reader) in some of my former prefaces of the Antiquitie & excellencie of our laws of England, hath produced these two questions: First whether Historiographers do concurre with that which there so constantly hath beene affirmed: Secondly, seeing so great and so often rehersall is made of the common Laws of England, what the body or text of the common lawe is, and consequently where a man may finde it. To both which in the end I yeelded to make answere. For the first: albeit the books and records (which are & vetustatis & veritatis vestigia)4 cited by me in the prefaces to the third and sixt parts of my Commentaries, are of that authority that they need not the aide of any Historian: yet will I with a light touch set downe out of the consent of Storie some proofes of the Antiquitie, and from the censure of those persons who in respect of their profession (for they were Monkes and Clergie men) may rather fall into a Jealousie of referuednes then flatterie, somewhat of the equitie and excellencie of our Lawes; And that it doth appeare most plaine in successiue authoritie in storie what I have positiuely affirmed out of record, That the grounds of our common laws at this day were beyond the memorie on register of any beginning, & the same which the Norman conqueror then found within this realm of England.5 The laws that Wil. Conqueror sware to observe, were bonae & approbatae antiquae regni leges,6 that is, the lawes of this kingdome were in the beginning of the Conquerours raigne good, approved, and auncient. And, that the people might the better observe their duetie and the Conquerour his oath,7 he caused twelve of the most discreete and wise men in everie shire throughout all England, to be sworne before himself, that, without swarving, either ad dextram or sinistram,8 That is, neither to flatter prerogative or extend priviledge, they should declare the integritie of their lawes without concealing, adding, or in any sort varying from the truth. And Aldred the Archbishop that had crowned him, and Hugh the Bishop of London, by the Kings commandement wrote that which the said Jurats had delivered: And these (as saith Ingulphus9 ) by publike proclamation, hee declared to bee authentike, and, for ever, under grievous punishment, to bee inviolably observed.10 The summe of which, composed by him into a Magna Charta (the groundworke of all those that after followed) hee blessed with the seale of securitie & wish of eternitie, closing it up with this generall: And wee further commaunde that all men keepe and observe duely the Lawes of King Edward: rearing up the frontispice ofhisgratious worke with his glorious stile, Willielmus Dei gratia Rex Anglorum, Dux Normannorum, Omnibus hominibus suis Francis & Anglicis Salutĕ. Statuimus imprimis super omnia vnum Deum per totum regnum nostrum venerari, vnam fidem Christi semper inuiolatam custodiri, pacem & securitatem et concordiam, iudicium & Iusticiam inter Anglos & Normannos, Francos & Britones Walliae & Cornubiae, Pictos & Scotos Albaniae, similiter inter & Insulanos, provinoias et patrias quae pertinent ad coronam et dignitatem, defensionem & obseruationem & honorem regni nostri, et inter omnes nobis subiectos per vniuersam Monarchiam regni Britaniae firmitèr & inuiolabilitèr obseruari.11W. Ruf. that succeeded his father,12 so exceeded himself in misrule & oppression, that there is left no register of his goodnes in this kind, for in his time the kingdom was oppressed with unjust exactions, & the Justice corrupted with evill usages, as appeareth by the great charter of his succeeding brother, king Henrie the first,13 who therby tooke away all the evill customes wherewith the kingdome of England was unjustly oppressed, and restored the Lawe of King Edward, (such Lawe as was in the time of the holy Confessor) with those amendments which his father added by the advise of his barons. What these were Math. Paris14 (who hath inserted the Charter in his storie) declareth to be the ancient Liberties and Customes which flourished in this kingdome in the time of holy king Edw. And herewith agreeth Hoveden15 in these words: King H. the first took away all the evil customes & unjust exactions wherwith the kingdome of England was unjustly oppressed: he setled an assured peace in his whole kingdome, and commanded the law of king Edward to be observed, he restored to all &c. The which, almost in the same phrase, Florentius16 a Monke of Worcester, and living in the raigne of Henry the first, observeth. And by whome the Injustice of the foregoing age proceeded, and by whome and how redressed William17 the Monk of Malmesbury delivereth in these words: Henrie born in England, of kingliebirth, &c. by his proclamation speedily sent through England: restrained the injustice brought in by his brother and Ranulph &c. and abolished the unwonted lenitie of some lawes, giving assurance by his owne and all the Nobilities oth, that they should not be deluded &c. K. Stc. that succeeded his uncle, confirmeth in his great Chartre of liberties to the barons & commons of Eng. in these words,18All the Liberties and good lawes which H. king of England my Uncle graunted unto them: And I graunt them all the good lawes and good customes which they enjoyed in the raigne of K. Edw. and was so jealous of invocation, as Roger Bacon19 the learned Frier saith in his book, de impediments sapientiae: King Stephen forbad by publicke edict that no man should reteine the Lawes of Italie formerly brought into England. The next to this man was Hen. 2. who in another great Charter established the former Lawes in these words.20 Henrie by the grace of God King of England, duke of Normandie, and Aquitaine, Earle of Aniou, to all Earles, Barons, and his faithful Subiects of France, and England, Greeting, Know ye that I, to the honour of God & holy Church, & for the common amendment of my whole kingdome, have graunted and restored, And by my Charter confirmed to God and holy church, and to all Earles and Barons, and to all my Subjects, All grants and donations, & liberties and free customes, which king Henry my Grandfather gave and graunted unto them. And all those evill customes which he abolished and remitted, I likewise doe remit, and for me and my heires doe agree shall be abolished. By which words it appeareth, that he had reference to that Charter of his Grandfather that abolished the unjust exaction and usages of his brothers raigne, and confirmed the old and excellent laws under Saint Edwards government. And no lesse ancient, even by the like authorities will appeare the customes of some of our Cities: For of London saith Fitzstephen21 (a Monke of Canterburie) it was built before that of Remus and Romulus (meaning Rome) wherefore even to this day they use the same ancient laws publike Ordinances &c. Let us descend a little lower to the times of King John the son of Henrie the 2. He in the 17. yere of his raign made the two great Charters, the one called Magna charta (not in respect of the quantitie but of the weight) & the other Charta de Foresta, which are yet extant to this day. Of which the Monk of Saint Albons faith,22Quae ex parte maxima leges antiquas & regni consuetudines continebant: that is, which for the most part did conteine the ancient lawes and customes of this Realme. And soone after he saith: And those lawes and liberties which the Nobilitie of the Realme did there seeke to confirme, are partly in the above said Charter of king Henrie, and partly taken out of the ancient lawes of King Edward: not that king Ed. the Confessor did institute them, but that he out of the huge heape of the lawes, &c. chose the best and reduced them into one, as in the preface to the third part of my reports more at large it appeareth. The said great charters made by king John are set downe in haec verba in Math. Par. pa. 246.23 and in effect doe agree with Magna Charta24 and Charta de Foresta established & confirmed by the great charter made in 9. H. 3. which for their excellencie have since that time beene confirmed & commanded to be put in execution by the wisdome & authoritie of 30. severall parliaments and above. And these Laws are in the Register in many writs called Liberties, for there it is said, according to the tenor of the great charter of the liberties of England, so called of the effect, because they make free: And Math. of Par. and others (as it appeareth before) stileth them by the same name. So as the antiquitie and excellencie of our common lawes doe not only appeare by Historians of our owne persuasion in Religion, but by these monasticall writers: the which I have added the more at large in this point to that which I affirmed in my former prefaces, to the end that they agreeing together, may the better persuade both parties to agree to the truth manifestly proved by many unanswerable arguments in the said preface to the third part, and by the authoritie of Sir John Fortescue chiefe Justice in the raign of K. Henry the sixth amongst others at large cited in my preface to the 6. part, by all which it is manifest, that in effect the verie bodie of the common lawes before the conquest are omitted out of the fragments of such acts and ordinances as are published under the title of the Laws of king Alured, Edward the I. Edward the second, Ethelstane, Edward, Edgar, Etheldred, Canutus, Edward the Confessor, or of other kings of England before the Conquest. And those few chapters of Lawes yet remaining, are for the most part certaine acts and ordinances established by the said severall kings by assent of the common councell of their kingdome. As for the excellencie of our municipall lawes I will adde to that which hath been said before, that the monk of Crowland25 calleth them the most just lawes, and Math. of Westmn26 of them saith: They being by the appointment of king Knute translated out of English into Latine, were by him for their equity commanded to be observed as well in Denmarke as in England. And of this matter thus much shall suffice. But yet before I take my leave of these Historians, I must incounter some of them in two maine points. First, that the trial by Juries of 12. men (which is one of the invincible arguments of the antiquitie of the common laws, being only appropriated to them) was not instituted by the powerful wil of a Conqueror, as some of them peremptorily affirme they were. The 2. that the Court of common pleas was not erected after the statut of Magna Charta (which was made in the 9. yere of king Henry the third) contrary to that which others do hold. For the first, I referre the learned Reader to the preface before the 3. part of my Reports, where he shall receive full & cleare satisfaction herein, and will onely adde the judgement of the great ornament (in his kinde) of this kingdome in his Britania pag. 109. with which I wil conclude this point: But wheras Polidore Virgil writeth, that Wil. the Conqueror first brought in the trial by 12. men, there is nothing more untrue, for it is most certaine and apparent by the laws of Etheldred, that it was in use many yeres before: Neither hath hee any cause to terme it a terrible Judgement; for free-borne and lawfull men, are duly by order impanelled & called forth of the neighborhood; these are bound by othe to pronounce and deliver up their verdit touching the fact; they heare the counsell plead on both sides before the bench or Tribunal, and the depositions of witnesses, the taking with them the evidences of both parties, they are shut up together and kept from meat drink and fire (unlesse peradventure some one of them bee in danger of death) until they be agreed of the matter in fact: which when they have pronounced before the Judge he according to Law giveth sentence. For this manner of triall our most wise & provident ancestors thought the best to finde out the truth, to auoid corruption, & to cut off all partiality & affections. And for the excellencie and indifferencie of this kinde of triall, and why it is onely appropriated to the common lawes of England, reade Justice Fortescue cap. 25. 26. 27. 28. 29. 30. 31. 32.&c. which being worthy to be written in letters of gold for the weight and worthines thereof, I will not abridge any part of the same, but referre the learned Reader to the fountaine it selfe.
As to the second, it is clearer then the light at noon day, that the court of Common pleas was not erected after the statute of 9. H. 3. Cap. 1. 1. Common pleas shall not follow our Court, but shal be holden in some place certaine. First, at the same time, and in the same great Charter, and in the next Chapter saving one, the Court of common pleas is expresly named; Assises of Darreine presentment shall alwaics bee taken before the Justices of the Bench, & no man doubteth but Justiciarÿ de Banco are Justices of the Common pleas. 2.King Henry the first, the sonne of the Conquerour, by his Charter, graunted to the Abbot of B. a Charter of confirmation of all his usages &c. And further graunted, that hee should have Conusance of all manner of pleas, so that the Justices of the one bench, or of the other, or Justices of Assise, should not meddle &c. and this Charter appeareth in 26. lib. Ass. pl. 24.27 3. In the booke case of 6. Edw. 3. fol. 54. 5528 it appeareth, that 15.29Mich. in the sixt yere of king Richard the first, a fine was levied betweene the Abbot of S. and Theoband C. of the advowson of the Church of Preston, before the Archbishop of Canterbury, the Bishop of Rochester and others (Justices del Banke, that is, of the court of common Pleas.) And it appeareth in Master Plowdens Com. in Stowels case,30 that fines were levied before the Conquest. In the Treasorie there are yet remaining some fragments of records and judgements in the raigne of king Rich. the 1. as wel coram Justiciariis de Banco, as coram Rege. Martin de Pateshull was made Justiciarius de Banco in the first yere of H.3.31 which was before the statute of Magna Charta. And in an. 10. Ed. 4. fo. 5332 all the Judges of England did affirme, that the Chauncery, Kings Bench, Common-place, and Eschequer, be all the kings Courts, and have bene time out of memory of man; so as no man knoweth which of them is the most auncient. But in a case so clere this shall suffice. And yet let me observe, that divers Bishops and other Ecclesiasticall persons in ancient time, did studiously reade over the lawes of England, and thereby attained to great and perfect knowledge of the same. And the saide Martin de Pateshull who was, as before is saide, chiefe Justice of the Court of Common pleas in the first yere of king Hen. the third, was also Deane of Paules; of whome it is said that he was a man of great wisdome and exceeding well learned in the Lawes of this Land. And John Britton33 bish. of Hereford, wrote an excellent worke in the daies of King Edward the 1. of the common lawes of England, which remaine to this day. And many Noblemen have been excellently learned in the laws of England, as taking one example for many, least this preface should grow too large, Ranulphus de Meschives the great and worthy Earle of Chester and the third and last of that family, (having as mine Author saith) great knowledge and understanding in the lawes of this Land, compiled a Booke of the same Lawes, as a witnesse of his great skill therein: of whom Mathew Par. pag. 350.34 reporteth (as an effect of his learning and knowledge in the Lawes of this Realme:) But Ranulph Earle of Chester alone valliantly resisted, as not willing to bring his Countrey into servitude (by paying of Tenths to the Pope:) And would not suffer the religious or Clerkes of his fee to pay the sayde Tenths, although all England and Wales, Scotland and Ireland, were compelled to pay them. And at a partiament holden in the twentieth yeare of king Henry the third,35 the Act saith: All the Bishops desired the Lordes that they would consent, That all such as were borne afore Matrimony should be legitimate as well as they that be borne within Matrimony, as to the succession if inheritance, forasmuch as the Church accepteth such for legitimate: And all the Earles and Barons with one voyce answered, That they would not change the laws of this Realme, which hitherto have beene used and approved. Which uniforme and resolute answere of all the nobilitie of England, nullo contradicente,36 doth shew the inward and affectionate love & reverence they bare unto the common Lawes of their deere Countrie. The certaine and continual practise of the common lawes of England soone after the Conquest, even in the time of King Henry the first the Conquerours sonne (which almost was within the smoake of that fierie Conquest) and continued ever since, doe plainely demonstrate that those lawes were before the dayes of William the Conquerour. For it had not beene possible to have brought the Lawes to such a perfection as they were in the raigne of King Henry the second succeeding, if the same had beene so sodainely brought in or instituted by the Conquerour: Of which lawes this I will say, That there is no humane Lawe within the circuit of the whole world, by infinite degrees, so apt and profitable for the honorable, peaceable, and prosperous governement of this kingdome, as these auntient and excellent lawes of England be.
Ranulphus de Glanuilla chiefe Justice, in the raigne of King Henry the second, learnedly and profoundly wrote of part of the Laws of England (whose workes remaine extant at this day:) and in his preface he writeth, That the king did governe this realme By the lawes of the kingdome, and by customes founded upon reason, & of antient time obtained. By which words spoken so many hundred yeres since, it appeareth, that then there were Lawes and Customes of this kingdome grounded upon reason and of antient time obtained, which hee neither could nor would have affirmed, if they had beene so recently and almost presently before that time instituted by the Conquerour. And in token of my thankfulnes to that worthy Judge,37 whom I cite many times in these Reports, (as I have done in my former) for the fruit, which I confesse my selfe to have reaped out of the faire fieldes of his labors, I will, for the honor of him, and of his name and posteritie, which remaine to this day (as I have good cause to know) impart and publish both to all future and succeeding ages which I have found of great antiquity, & of undoubted verity; the original wherof remaineth with me at this day, and followeth in these words. Ranulphus de Glanvilla Justiciarius Angliae,38fundator fuit domus de Butteley39in com’ Suff. quae fundata erat anno Regis H. filii imperatricis 17. & anno dom’ 1171. quo anno Tho. Becket Cantuar’ archiepiscopus erat occisus. Et dictus Ranulphus nascebatur in villa de Stratford in com’ Suff. & habuit manerium de Benhall cum toto dominio ex dono dicti regis40 H. Et duxit in uxorem quandam41 Bertam filiam domini Theobaldi de Valeymz senioris, dom’ de Parham, qui Theobald per cartam suam dedit dicto Rañ & Bertae uxori suae totam terram de Brochous cum pertin’, in qua domus de Butteley sita est, cum aliis terris & tenementis in libero maritagio. Pradictus verò Ranulphus procreavit tres filias de dicta42 Berta, viz. Matildam, Amabiliam, & Helewisam, quibus dedit terram suam ante progressum suum versus terram sanctam.43 Matilda, prima soror, habuit ex dono patris sui totam villam de Benhall integralitèr unà cum advocatione ecclesiae five monasterii beatae Mariae de Butteley, & nupsit cuidam militinomine Will de Auberuille, de quibus processit Hugo de Auberuille, de ipso Hugone Will de Auberuille, de ipso Willielmo processit quaedam Johanna filia unica & haeres, quae nupsit cuidam militi de Cancia nomine Nicholao Kyryell qui duxit in uxorem Margaretam filiam dom’ Galfridi Peche; & ille Nich’ vendidit dom’ Guidoni Ferr̄ praedict’ manerium de Benhall: & tum ille Nich’ de uxore sua genuit alium dom’ Nich’ militem in Cancia, qui vixit ante primam pestilentiam. Ipse autem Guido talliavit praedictum maner’ in cur’ dom’ Regis apud Westm’ in crastin’ Ascensionis dom’, anno regni regis E. filij E. primo, sibi & Alianorae uxori suae & haeredib’ dese exeunt’: Et si ipse Guido sine haerede decederet, rem’ Wil’ de S. Quintino & haeredibus. Amabilia, secunda soror, habuit ex dono patris sui medietatem vill’ de Bawdeseia & medietatem vill’ de Fynbergh. Amabilia praedicta habuit virum nomine Radulphum de Ardern, de quo processit Tho. de Ardern filius & haeres, De Th’ Radul filius & haeres, qui feossauit priorem & conuentum de Butteley de medietate villae de Bawdesey. De predicto Radulpho processit quidam Tho. Ardern filius & haeres. Helewisa, tertia soror, habuit ex dono patris sui aliam medietatem villae de Bawdesey praedicta, et aliam medietatem villae de Fynbergh praedicta. Helewisa praedicta habuit virum nomine Robertũ filium Rob. de quo processit Rad’ filius et haeres, qui feoffavit Warinum de Insula de medietate praedicta villae de Fynbergh. De Rad’ processit Rob’ filius & haeres qui feoffavit Ran’ fratrem suum de medietate praedicta villae de Bawdesey. Et nota, quod praefatus Ranulp’ de Glanuilla fuit vir praeclarissimus genere, utpote de nobili sanguine,44vir insuper strenuissimus45corpore,46qui provectiori aetate ad terram sanctam properauit,47& ibid’ contra inimicos crucis Christi48strenuissimé usq; ad necem dimicauit. Fuit autem Berta49ex illustri prosapia orta, filia dom’ Theobaldi Valeymz senioris domini de Parham, quorum & Ranulphi & Bertae50consanguinei multi, de quibus plures milites, omnes vero gentiles & generosi, istam partem Suff. eorum incolatu & generosa carnispropagine honorificè illustrabant annis multis.51 And Henr’ de Bracton a Judgeofthisrealm, in the raigne of K. Henry the third in his first chapter of his first Booke Numerotertio saith: I Henry de Bracton have set my mind to serch out diligently the ancient Judgements of the just, not without much paines and labor &c. So as he stileth the laws of England by the name of The auncient Judgements of the Just. The author of the Booke called Fleta (who wrote in the raigne of king Edward the first) in his Preface to his Worke agreeth with Glanvill concerning the Antiquity and honor of the lawes of England, and there sheweth the reason wherefore he intitled his book by the name of Fleta: But this Treatise which may worthily be called Fleta, because it was compiled, in the Fleete, of the Lawes of England. I have a Register of our Writs originall, written in the raigne of K.H.2. (in whose time Glanvill wrote) containing the originall Writs which were long before the Conquest, as in the said Preface to the third part appeareth, and yet also remaining in force, such excepted as have been instituted or altered by Acts of parliamént since that time, which is the most ancient booke yet extant of the Common law, and so ancient, as the beginning whereof cannot be shewed. To the 2. question I doe affirme, That the Statutes of Magna Charta, Charta de Foresta, Merton, Marlebridge, Westm’ I. De Bigamis, Gloc’, Westm’ 2, Articuli super cartas, articuli Cleri, statutum Eboraic, Praerogativa regis, and some few others, that be auncient, amongst which, the statute of 25. E. 3. is not to be omitted, touching tresons (which for the most part are but declarations of the Common law) together with the original writs contained in the Register concerning comon pleas, and the exact & true formes of Inditements & Judgements thereupon in criminall causes, are the very body, & as it were the very text of the common lawes of England. And our yeare Bookes and Records yet extant for above these 400. yeares, are but Commentaries and Expositions of those lawes, originall writs, inditements and judgements. By two cases, the one of Jebu Webbe, & the other called Blackamores case now among others published & resolved in this blessed &florishing spring time of his Majesties Justice, specially (among many others) it appeareth, that our Booke cases and Records are also right Commentaries, and true Expositions of Statutes and Acts of parliament. And for an example of an originall writ, among many other, I referre the studious Reader especially to Calyes case in Pasc’ 26. of the raigne of the late Queene Eliz. of ever blessed memorie, now published, whereby it more clerely appeareth how iudicious the opinion of Justice Fitzh. is in his preface to his N.B. where he saith, that originall writs are the foundations whereupon the Law dependeth, & how truly he calleth thé the Principles of the law, & fortifieth also the opinion of Bracton li. 5. fo. 413. where he faith, that (Breue formatum est ad similitud’ regulae iuris:52 ) which Case I have reported in that forme to this end, that Students seeing the singuler use of original writs, wil in the beginning of their study learn them, or at least the principallest of them without booke, whereby they shal attaine unto 3.things of no smal moment: 1. to the right understanding of their books: 2. to the true sense & judgement of law: & lastly, to the exquisit forme & maner of pleding. And the Case of Barretry standeth for an example of an inditement. The neglect of Assises & reall actions hath produced 2. inconueniences in the Common wealth, & a 3. is (if it be not stept on already) like to insue: 1. the multitude of suits in personall actions, wherein the realty of freehold & inheritance is tried, to the intollerable charge and vexation of the subject: 2. multiplicitie of suits in one and the same Case, wherein oftentimes there are divers verdits on the one side, and divers on thother, and yet the pf. or def. can come to no finite end, nor can hold the possession in quiet, though it be often tried & adjudged for either party. And this groweth, for that the right institution of the Lawe is not obserued, to the uniust slander of the common law, & to the intollerable hindrance of the common wealth. In personall actions concerning debts, goods, & chattels, a recovery or bar in one action is a bar in another, and there is an end of the controversie. In reall actions for freehold & inheritance, being of a higher & worthier nature, & standing upon greater variety of titles & difficulties in law, there could not be above 2. trials, or at the most (& that very rarely) 3. and in the mean time, after one recovery, the possession resteth quiet. 3. The discontinuance of real actions will produce in the end 2. dangerous effects, viz. want of true judgement in the Professors of the Law, & grosse ignorance in Clerks of the right entries & proceedings in those Cases. We see that workes of Nature are best preserved from their owne beginnings, frames of Policy are best strengthned from the same ground they were first founded, & justice is ever best administred when Laws be executed according to their true and genuine institution. And therefore to the end the ancient & excellent institution of the Common Law might be recontinued for the good of the common wealth, (For it is convenient for the commonwealth, that there be an end of controversies.) I have therfore reported 2. Cases of Assises, for that the writ of Assise (in case where it lieth) is optimum & maxime festinum remedium:53 And the cases of Buckmere & Syms of writs of Formedon in remainder: & Ed. Altuams case of a writ of Dower. And we, that are Judges of the Realm, have resolved to cut off al superfluous & unjust delaies, & as much as we can, all fained dilatory & curious pleadings: the admittance whereof, of late time, hath bin a great cause why reall actions, & specially writs of Assise, have not bin so frequent as they have been. And though in reall actions, as the weight of the cause requireth, there are longer times given in the proceeding, then in personall actions, as appeareth in Justice Fortescues booke ca. 53. (where it appeareth that those times are neither overlong, nor without just cause; For many times in deliberations judgements grow to ripenes, but in over hastie processenever:) yet shal the demaundant come to a timely finall end by these reall actions, which he shall never do by prosecution of personall actions for the triall of freehold or inheritance. And they that well observe the three parts of the Reports in the raigne of king E. 3. shal find few or no actions of trespas or personal actions brought concerning any lands or tenements, but either where no title of freehold or inheritance came in question, or where the plaintife could not have any reall action: and therfore amongst many others it appeareth in an action of trespas Quare clausum fregit54 brought by the B. of Coventry & Lichfield in 6. Ed. 3. fo. 34. b. exception was taken to the replication of the B. for that he pleaded in the realty, for alwaies in those daies real cases were determined in real actions, which made the Judges in those times to merit that honorable testimony which Thirning chiefe Justice attributeth to them in the 12. yere of the raigne of K. Henry the fourth that they were the greatest Sages that ever were: & that in the raigne of K. Edward the third the law was of the greatest perfection that ever it was; & that pleding (the greatest honor & ornament of the law) grew in the raigne of that king to that excellency, as that the pleading in former times having regard to the pleadings in the raigne of king E.3. are holden by Thirning to be but feeble. I have reported the great case of the duchy of Cornwall for divers causes. 1. Although this very case hath bin long since (as shal appere in this Report) judicially adjudged, yet hath the same of late bin called in question againe, partly for that the said judgements remain privatly amongst the rest of the kings Records, unknown but to a few, & partly, for that the resons & causes of the judgements being (according to law) not expressed in the Record it self, gave no ful & cleere satisfaction: but principally, for that there was no report made & published of the true causes & resons of those resolutions & judgements. 2. To the end that such as have not any part therof, may hereby be instructed of the true state of the possessions of this duchy, & by this means be admonished how they deale with any that have bought or purchased any of these possessions; & that such as have acquired or gotten any of them, knowing that the judgement was given in this case, both upon many direct authorities in the point, & upon plain & demonstrative reason (the 2. main causes of true satisfaction) may therwith rest satisfied. The last, but not the least, is, for that the most noble & excellent Prince, who is omine nomine numinemagnus,55 &thegreatest that ever was before him, hath in his first Cause in hoc forensi dicendi genere56 gotten victorie. I have for some respects reported the same in Latin, wherein I have been contented potiùs scribere propriè quam Latinè;57 & for that the words of art which wil beare no translation, are herein so many & so frequent, I have added the report therof in the vulgar language, that the reader may use either of them at his pleasure. There are certein other cases now published by me, concerning some of the most abstruse darke & difficult points in the law, & yet very necessary to be known, as in Arthur Blackamores case concerning Amendments, Beechers case of a Retraxit, departure in despite of the Court, & of Fines and Amercements, Greisleyes case of affearing of Amercements, & some others. And I have of purpose done these as plainly and cleerly, and therewith as briefly as I could. For the lawes are not like to those things of Nature, which shine much brighter through Cristall or Amber, then if they be beheld naked: nor like to Pictures that ever delight most when they are garnished & adorned with fresh and livelie colors, and are much set out & graced by artificial shadowes. And, whether it be in respect of the matter, or my yeres growing fast on, being now in the 60. yere of mine age, or for what other respect soever it be, sure I am I have felt this eighth Work much more painfull then any of the other have been unto me. And yet hath almighty God of his great goodnes (amidst my publike imploiments) enabled me hereunto. And as the Naturalists say, that there is no kinde of bird or fowle of the wood or of the plaine that doth not bring somewhat to the building & garnishing of the Eagles nest, some, cinnamon and other things of price, and some, juniper and such like of lesser value, every one according to their quality, power, and ability: so ought every man according to his power, place, and capacity to bring somewhat, not onely to the profit and adorning of our deere Conntrey (our great Eagles nest) but therein also, as much as such mean instruments can to expres their inward intention & desire, to honor the peaceable days of his Majesties happy & blessed government to al posterity. And for that I have been called to this place of Judicature by his Majesties exceeding grace & favor, I hold it my duty, having observed many things concerning my profession, to publish amongst others certaine Cases that have been adjudged andresolved since his Majesties raigne in his highest Courts of ordinary Justice in this calme and florishing spring time of his Majesties justice, amounting with those of my former edition in al to 84. And (if it shall please God) I intend hereafter to set out an other Worke, whereof I have onely collected the materials, but not reduced them to such a forme as I intend, left if I should leave it as it is, it might, after my death, be published (as hath bin done in the like case) before it be perfected. Your extraordinary alowance of my former Works, together with your continuall and earnest desire of other Editions, have much incouraged me to undertake these paines: And if you shall reape in your studies such profit thereby, as I from my heart desire, and as you (from your desire of knowledge) doe expect, then shall my Labors seeme light unto me, for my expectation shall be satisfied.
(1609) Trinity Term, 7 James I
First Published in the Reports, volume 8, page 81b.**
Ed.: William Wilde and Robert Vynior had agreed on a bond, by which Wilde owed Vynior £20 15s, with a variety of accompanying obligations and under which any disagreement about performance of the terms of the bond would be decided by William Rugge as arbitrator. Vynior sued Wilde for breach of his obligations, and Vynior argued that Wilde should rely on a decision of Rugge’s. In this case, the power to enter into a binding agreement to arbitration is rejected under the view that the power to revoke an authority in another person to arbitrate was irrevocable. Vynior won.
Robert Vynior brought an action of debt against William Wilde upon an obligation of 20 1. 15 Julii anno 6 of the same king. The Defendant demanded Oyer of the Bond and of the Condition endorsed, which was, That if the above bounden William Wilde do, and shall from time to time, and at all times hereafter, stand to, abide, observe, perform, fulfil, and keep, the rule, order, judgment, arbitrament, sentence, and final determination of William Rugge, Esquire, Arbitrator indifferently named, elected, and chosen, as well on the part of the said William Wilde, as on the part of the said Robert Vynior, to rule, order, adjudge, arbitrate, and finally, determine all matters, suits, controversies, debates, griefs, and contentions, hereto moved and stirred, and now depending between the said parties, touching or concerning the sum of Two and twenty pence heretofore taxed upon the said William Wilde, for divers kinds of Parish business, within the parish of Themilthorpe in the county of Norfolk, so as the said award be made and set down in writing under the hand and seal of the said William Rugge, at or before the Feast of St. Michael the Archangel next ensuing, after the date of these presents, That then, &c. And the Defendant pleaded, That the said Will. Rugge, nullum fecit arbitrium de et super praemissis, &c.1 The Plaintiff replyed, That after the making of the said Writing obligatory, and before the said Feast of St. Michael, scil. 22 Aug. Anno 6, supradicto apud Themilthorpe praed’ praedict’ Willihelm’ Wilde per quodd’ script’ suum cujus datus est eisdem die et anno revocavit et |[82 a] abrogavit, Anglice, did call back, omnem authoritatem quamcunque quam idem Willielmus Wilde per praed’ scriptum obligatorium dedisset, et commisissetpraefat’ Willielmo Rugge arbitratori suo, et adtunc totaliter deadvocavit, et vacuum tenuit totum et quicquid dict’ Willielmus Rugge post deliberationem ejusdem scripti sibi faceret in et circa dict’ arbitrium regulam, &c. unde ex quo praed’ Wil’mus Wilde post confectionem praed’ scripti, et ante praed’ Festum Sancti Michaelis tunc prox’ sequen’ in forma praed’ exoneravit, et abrogavit arbitratorem praed’ de omni authoritate arbitrandi de et super praemissis in conditione praed’ superius specific’ contra formam et effectum conditionis illius, et submissionis in ead’ mention’ idem Robertus petit judicium, &c.2 Upon which the Defendant did demur in law. And in this case 3. points were resolved.
1. That although William Wilde the Defendant was bound in a Bond to stand to, abide, observe, the rule, &c. arbitrament, &c. yet he may countermand the same; for a man cannot by his act make such authority, power, or warrant not countermandable, which by the Law and of his nature iscountermandable; As if I make a Letter of Attorney to make livery, or to sue an Action in my name; or if I assign Auditors to take an account; or if I make one my Factor; or if I submit myself to an Arbitrament; although that these are done by express words irrevocably, yet they may be revoked: So if I make my Testament and last Will irrevocably, yet I may revoke it, for my act or my words cannot alter the judgement of the Law to make that irrevocable, which is of its own nature revocable. And therefore (where it is said in 5 Edw. 4. 3. b. If I be bounden to stand to the award which I. S. shall make, I could not discharge that arbitrament, because I am bound to stand to his award, but if it be without Obligation it is otherwise) it was Resolved, that in the one case or the other the authority of the Arbitrator may be revoked; but then in the one case I shall forfeit my bond, and in the other I shall forfeit nothing; for, ex nuda submissione non oritur actio:3 and therewith agreeth Brooke in abridging the said book of 5 Edw. 4. 3. b. and so the book of 5 Edw. 4. is well explained. Vide (31 Hen. 6. 30 28, Hen. 6. 6b. 49 Edw. 3. 9a. 18 Edw. 4. 9. 8 Edw. 4. 10.)
2. It was Resolved, That the Plaintiff need not aver, that the said William Rugge had notice of the said Countermand, for that is implied in these words, revocavit et abrogavit omnem authoritatem, &c.4 for without Notice it is no revocation or abrogation of the authority: and therefore if there was no Notice, then the Defendant might take issue, quod |[82 b] non revocavit, &c.5 and if there was no notice, it shall be found for the Defendant; as if a man plead, quod feoffavit, dedit,6 or demisit pro termino vitae,7 the same implieth Livery, for without Livery, it is no Feoffment, gift, or demise; But there is a difference when 2 things are requisite to the performance of an act, and both things are to be done by one and the same party, as in case of Feoffment, gift, demise, revocation, countermand, &c. And when two things are requisite to be performed by several persons; as of a grant of a Reversion, attornment is not implied in it, and yet without attornment the grant hath not perfection, but for as much as the grant is made by one, and the attornment is to be by another, it is not implied in the pleading of the grant of one; but in the other case both things are to be done by one and the same party, and that maketh the difference. And therewith agreeth 21 Hen. 6 30a. where William Bridges brought an action of debt for 2001 upon an arbitrament against William Bentley; the Defendant pleaded, that before any Judgment, or Award made by the Arbitrators, the said William Bentley discharged the Arbitrators at Coventry, in the county of Warwick; and the same was holden a good barr and yet he did not averr any Notice to be given. So it is adjudged in (28 Hen. 6. 6 6 Hen. 7. 10, &c.)
3. It was Resolved, That by this Countermand or revocation of the power of the Arbitrator, the Obligee shall take benefit of the Obligation and that for two causes. 1. because he hath broken the words of the Condition, which are That he should stand to, and abide, &c. the rule, order, &c. and when he countermands the Authority of the Arbitrator, he doth not stand to and abide, &c. which words were put in such Conditions, to the intent that there should be no countermand, but that an end should be made by the Arbitrator of the Controversie, and that the power of the Arbitrator should continue till he had made an Award; and when the Award is made, then there are words to compel the parties to perform it, scil. observe, perform, fulfil, and keep the rule, order, &c. and this form was invented by prudent Antiquity; and it is good to follow in such cases the ancient forms and precedents, which are full of knowledge and wisdom; and with this Resolution agreeth the said book of 5 Ed. 4. 3b. which is to be intended, as above said, ut supra, That the Obligor cannot discharge the Arbitrament, but that he shall forfeit his bond, and the book giveth the reason, which is the cause of this Resolution, scilicet,8 because I am bound to stand to his award scil. to stand to his award, which I do not when I discharge the Arbitrator. The other reason is, because the Obligor by his own act hath made the Condition of the Obligation (which was endorsed for the benefit of the Obligor, to save him from the penalty of the Obligation) impossible |[83 a] to be performed, and by Consequence his Obligation is become single, and without the benefit or help of any Condition, because he hath disabled himself to perform the Condition Vide (21 Edw. 4. 55 per Choke, & 18 Edw. 4. 18b & 20a) If one be bounden in a Obligation, with Condition that the Obligor shall give leave to the Obligee for the time of 7 years to carry wood, &c. in that case although he gives him leave, yet if he Countermands it, or disturbs the Obligee, the obligation is forfeited. And afterwards Judgement was given for the Plaintiff.
Dr. Bonham’s Case.
(1610) Hilary Term, 7 James 1.
In the Court of Common Pleas.
First Published in the Reports, volume 8, page 113 b.
Ed.: This is, perhaps, Coke’s most famous case and most famous report, although he likely did not see it as startling as it would be thought in later generations. The College of Physicians held a concession in their charter under an act of Parliament giving it the sole right to license anyone who would practice medicine in London. Thomas Bonham was amedicaldoctor educated in the University of Cambridge, who began to practice medicine in London in 1606. He was examined by the College of Physicians, who refused to qualify him to practice. Bonham continued in practice and the censors fined him £5 and ordered him to stop. He continued and refused to obey the College’s orders. The president and censors of the college and their two servants arrested Bonham. Bonham sued them for false imprisonment. Coke, sitting in Common Pleas but with the agreement of Fleming, the Chief Justice of the King’s Bench, ruled that the language of the charter was not designed to give the college the right to imprison for unlicensed practice in order to benefit the public but to maintain the monopoly of its members and graduates, that the president did not have the power to fine, that proceedings of such a body should be recorded in writing and not done by voice alone, that any fines they collected belonged to the King and not to the College, and that the provision of the charter that allowed imprisonment must be read very strictly in order to prevent the loss of a subject’s liberty at the pleasure of others. In reaching these conclusions, Coke noted that the College cannot be a judge in a case to which it is a party. He then considered whether the censors were judges, and stated that in many cases the common law will void acts of Parliament when they are “against common right and reason, or repugnant, or impossible to be performed.” This is often thought to be the first judicial statement of a power of judicial review over legislation. As to other invalid restraints from professions, see Case of the Tailors of Ipswich, p. 390, and for restraints of trade, see Case of the Monopolies, p. 394.
|[114 a] Thomas Bonham, Doctor in Philosophy and Physick brought an action of false imprisonment against Henry Atkins, George Turner, Thomas Moundford, and John Argent, Doctors in Physick, and John Taylor, and William Bowden Yeomen, For that the Defendants, the 10 of Novemb. anno 4 Jacobi, did imprison him, and detain him in prison by the space of 7 days. The Defendants pleaded the Letters Patents of King Henry the 8. bearing date the 23 of Septemb. in the 10 year his reign, by which he reciteth, Quod cum regii officii sui munus arbitrabatur ditionis suae hominum faelicitati omni ratione consulere, id autem vel imprimis fore si improborum conatibus tempestive occurreret, &c.1 By the same Letters Patents the King granted to John Chambre, Thomas Linacre, Ferdinando de Victoria, John Halswel, John Frances, and Robert Yaxley, quod ipsi omnesque homines ejusdem facultatis de et in civitat’ London sint in re et nomine unum corpus et communitas perpetua, per nomen praesidentis et Collegii, sive communitatis facultatis medicinae London, &c.2 And that they might make meetings and Ordinances, &c. But the case at Bar dothprincipally consist upon two Clauses in the Charter. The first, Concessimus etiam eisdem praesidenti et Collegio seu Communitati et successoribus suis, quod nemo in dicta Civitate, aut per septem milliaria in circuitu ejusdem, exerceat dictam facultatem Medicinae, nisi ad hoc per dicts praesidents et Communit. seu successores suos, qui tempore fuerint, admissus sit per ejusdem praesidentis et Collegii Literas sigillo suo communi sigillat. sub poena centum |[114 b] solidorum pro quolibet mense quo non admissus eandem facultatem exercuerit, dimidium inde Domino Regi et haeredibus suis, et dimidium dict’ praesidenti et Collegio applicand’, &c.3 The second clause is, which immediately followeth in these words, Praeterea voluit et concessit pro se et successoribus suis, quantum in se fuit, quod per praesident’Collegium praedict’ Communitat’ pro tempore exist’ et eorum successores imperpetuum, quatuor, singulis annis per ipsos eligerent qui haberent supervisum et scrutinium, correctionem et gubernationem omnium et singulorum dict’ Civitatis Medicorum, utentium facultat’ medicinae in eadem Civitate, ac aliorum Medicorum forinsecorum quorumcunque facultatem illam Medicinae, aliquo modo frequentantium et utentium infra eandem Civitatem et suburbia ejusdem, sive infra septem milliarii in circuitu ejusdem Civitatis, ac punitionem eorundem pro delictis suis in non bene exequend’ faciend’ et uten’ illa: necnon supervisum et scrutinium omnium medicinarum, et earum receptionem per dictos Medicos seu aliquem eorum hujusmodi ligeis dicti nuper Regis pro eorum infirmitatibus curand’ et sanand’ dand’ imponend’, et utend’ quoties et quando opus fuerit, pro commodo et utilitat’ eorundem ligeorum dicti nuper Regis: Ita quod punitio eorundem Medicorum utentium dicta facultate Medicinae sic in praemiss’ delinquentium per fines, amerciamenta et imprisonament’ corporum suorum, et per alias vias rationabiles et congruas exequeretur, as by the said Charter more fully appeareth. And that by force of said Letters Patents, The said John Chambre, Thomas Linacre, &c. and all the men of the same faculty in the said City were unum corpus et communitas perpet’ sive collegium perpetuum.4 And afterwards by Act of Parliament An. 14 Hen. 8. It was enacted, That the said corporation, and every grant, article, and other things in the said Letters Patents contained and specified, should be approved, granted, ratified, and confirmed, in tam amplo et largo modo prout poterit acceptari, cogitari, et construi per easdem Literas Patentes.5 And further it was enacted, That the said 6 persons named in the said Letters Patents, as Principal of the said College, and2 others of the said College, who should be named Electi,6 and that the said Elects should choose one of them to be President, as by the said Act appeareth: And further they pleaded the Act of 1 Mariae, by which it is enacted, Quod quaedam concessio per Literas Patents de incorporatione facta per praedict’ nuper Regem Medicis London. Et omnes clausulae et articuli content’ in eadem concessione approbarentur, concederentur, ratificarentur et confirm’ per praedict’ Parl’; in consideratione cujus inactitat’ fuit authoritate ejusdem Parliamenti. Quod praed’ statut’ et actum Parliamenti in omnibus articulis et clausulis in eodem content’ extunc imposterum starent et continuarent in pleno robore, &c.7 And further it was enact-|[115 a]-ed, That whensoever the President of the College, or Commonalty of the faculty of Physick of London for the time being, or such as the said President and College shall yearly, according to the tenor and meaning of the said Act, authorize to search, examine, correct, and punish all offenders and transgressors in the said faculty, &c. shall send or commit any such offender or offenders for his or their offence or disobedience, contrary to any article or clause contained in the said grant or Act, to any ward, gaol, or prison within the same City (the Tower of London except) that then from time to time the Warden, Gaoler, or keeper, &c. shall receive, &c. such person so offending, &c. and the same shall keep at his proper charge, without bail or mainprize, until such time as such offender or disobedient be discharged of the said imprisonment by the said President, and such persons as shall be thereunto authorised, upon pain that all and every such Warden, Gaoler, &c. doing the contrary, shall lose and forfeit the double of such fines and amerciaments as such offender and offenders shall be assessed to pay, by such as the said President and College shall authorise as aforesaid, so that the fine and amerciament be not at any one time above the sum of 20 l., the one moiety to the King, the other moiety to the President and College, &c. And further pleaded, That the said Thomas Bonham the 10th of April, within London, against the form of the said Letters Patents, and the said Acts, exercebat artem Medicinae, non admissus per literas praed’ praesidentis et Collegii sigillo eorum communi sigillat’ ubi revera praed’ Tho. Bonham fuit minus sufficiens ad artem Medicinae exercend’.8 By force of which, the said Thomas Bonham 30 April 1606, was summoned in London by the Censors or Governours of the College, to appear before the President and Censors, and Governours of the College aforesaid at the College, &c. the 14th day of April next following, super praemissis examinand’.9 At which day the said Thomas Bonham came before the President and Censors, and was examined by the Censors de scientia sua in facultate sua in Medicin’ administrand’. Et quia praed’ Thomas Bonham sic examinatus minus apte et insufficienter in praed’ arte medicinae respondebat, et inventus fuit super examinationem praed’ per praed’ Praesident’ et Censores minus insufficiens et inexpert’ ad artem Medicinae administrand’ ac pro eo quod praed’ Thomas Bonham multotiens ante tunc examinatus, et interdictus per ipsum praesident’ et Censores, de causis praed’ ad artem medicinae administrand’ per unum mensem et amplius post talem interdictionem facultatem illam in Lond’ praed’ sine licentia, &c. ideo adtunc et ibid’ consideratum fuit per praed. Praesident’ et Censores, quod praed’ Thomas Bonham pro inobedientia et contempt’ suis praed’ amerciaretur to 100s. in proximis comitiis praed’ praesident’ et Collegii persolvend’ et deinceps abstineret, &c. quousque inventus fuerit sufficiens, &c. sub poena |[115 b] conjiciendi in Carcerem si in praemissis delinqueret.10 And that the said Thomas Bonham, 30 Octob. 1606, within London did practise Physick, and the same day he was summoned by the Censors to appear before the President and them the 22 of Octob. then next following, at which day Bonham made default. Ideo consideratum fuit per praed’ Censores,11 that for his disobedience and contempt he should be amerced to 10 l. and that he should be arrested and committed to custody, And afterwards 7 Novemb. 1606. the said Thomas Bonham at their assembly came before the President and Censors, and they asked him if he would satisfy the College for his dis-obedience and contempt, and submit himself to be examined; and obey the censure of the College, who answered, That he had practised Physick and would practice Physick within London, asking no leave of the College, and that he would not submit himself to the President and Censors; and affirmed, that the President and censors had no authority over those who were Doctors in the University; For which cause, the said 4 Censors, scil. Dr. Turner, Dr. Moundforde, Dr. Argent, and Dr. Dun, then being Censors or Governors, pro offensis et inobedientia praed’ adtunc et ib’ ordinaverunt et decreverunt, quod praed’ Thomas Bonham in carcerem mandaretur ib’ remansur’ quousque abinde per praesident’ et censores, seu gubernatores Collegii praed’ pro tempore existen’ deliberaretur,12 And there then by their warrant in writing, under their Common Seal, did commit the Plaintiff to the prison of the Counter in London, &c. without bail or mainprise, at the costs and charges of the said Thomas Bonham, until the said Thomas Bonham by the warrant of the President and Censors of the said college, or their Successors, was delivered. And Dr. Atkins then President, and the Censors, and Bowden and Taylor as their servants, and by the commandment of the said President and Censors, did carry the Plaintiff with the warrant, to the Gaol, &c. which is the same imprisonment. The Plaintiff replied and said, That by the said Act of 14 H. 8. it was further enacted, And where that in the Dioces of England, out of London, it is not like to find always men able sufficiently to examine (after the Statute) such as shall be admitted to exercise Physick in them, that it may be enacted in this present Parliament, That no person from henceforth be suffered to exercise or practise Physick through England, until such time that he be examined at London by the said President and 3 of the said Elects, and to have from them Letters Testimonial of their approving and examination, Except he be a graduate of Oxford or Cambridge, which have accomplished all things for his form without grace: And that the Plaintiff, in the year of our Lord 1595. was a Graduate, scil. a Doctor in the University of Cambridge, and had accomplished all things concerning his degree for his form without grace, by force whereof he had exercised and practised Physick within the City of London until the De fendants had imprisoned him, &c. upon which the Defendant did demurr in Law. And this case was often |[116 a] argued by the Serjeants at Bar in diverse several Terms; And now this Term, the case was argued by the Justices, and the effect of their arguments who argued against the Plaintiff (which was divided into three parts) shall be first reported. The first was, Whether a Doctor of Physick of the one University or the other, be by the Letters Patents, and by the body of the Act of 14 H. 8. restrained to practice Physick within the City of London, &c. The second was, If the Exception in the said Act of 14 H. 8 hath excepted him or not. The third was, That his imprisonment was lawful for his said dis-obedience. And as to the first, they did relie upon the Letter of the grant, ratified by the said Act of 14 H. 8. which is in the negative, scil. Nemo in dicta civitate, &c. exerceat dictam facultatem nisi ad hoc per praedict’ praesidentem et communitatem, &c. admissus sit, &c.13 And this proposition is a general negative, and Generale dictum est generaliter intelligendum;14 and nemo15 excludeth all; and therefore a Doctor of the one University or the other, is prohibited within this negative word Nemo. And many cases were put, where negative Statutes shall be taken stricte et exclusive,16 which I do not think necessary to be recited. Also they said, that the Statute of 3 H. 8 cap. 11. which in effect is repealed by this Act of 14 H. 8. hath a special proviso for the Universities of Cambridge and Oxford, which being here left out, doth declare the intention of the makers of the Act, that they did intend to include them within thisgeneralprohibition, Nemo in dicta Civitate, &c.17 As to the two points they strongly held, that the said latter clause, And where that in the Dioceses of England out of London, &c. this clause according to the words doth extend only to places out of London and so much the rather, because they purview for London before, Nemo in dicta Civitate, &c. Also the makers of the Act put a distinction betwixt those who shall be licensed to practise Physick in London, &c. for they ought to have the admittance and allowance of the President and College in writing, under their Common Seal; but he who shall be allowed to practise Physick throughout England out of London ought to be examined and admitted by the President and 3 of the Elects; and so they said, that it was lately adjudged in the Kings Bench, in an Information exhibited against the said Doctor Bonham for practising of Physick in London for divers Months. As to the third point they said, That for his contempt and dis-obedience before them in their College, they might commit him to prison, for they have authority by the Letters Patents and Act of Parliament, And therefore for his contempt and misdemeanor before them they may commit him. Also the Act of—1 Mariae has given them power to commit them for every offence or dis-obedience contrary to any article or clause contained in the said grant or act, But there is an express Negative Article in the said grant, and ratified by the Act of 14 H.8|[116 b] Quod Nemo in dicta Civitate, &c. exerceat, &c.18 And the Defendants have pleaded, that the Plaintiff hath practised Physick in London by the space of one moneth, &c. And therefore the Act of 1 Mariae hath authorised them to imprison him in this case; for which cause they did conclude for the Defendants against the Plaintif. But it was argued by Coke Chief Justice, Warburton and Daniel Justices at the Common Pleas, to the contrary. And Daniel conceived, That a Doctor of Physick of the one University or the other, &c. was not within the body of the Act, and if he was within the body of the Act, that he was excepted by the said latter clause: but Warburton argued against him for both the points: and the Chief Justice did not speak to those points, because he and Warburton and Daniel did agree, that this action was clearly maintainable for 2 other points. But to the 2 other points he and the said 2 other Justices, (Warburton) and (Daniel) did speak, Scil. 1. Whether the censors have power for the Causes alleged in their barr, to fine and imprison the Plaintif. 2. Admitting that they have power to doe it, if they had pursued their power. But the Chief Justice before he argued the points in Law, because that much was said in the Commendations of the Doctors of Physick of the said College within London and somewhat (as he conceived,) in derogation of the Dignity of the Doctors of the Universities, he first attributed much to the Doctors of the said College within London, and did confess that nothing was spoken, which was not due to their merits; but yet that no Comparison was to be made, between that private College, and any of the Universities of Cambridge and Oxford no more than between the Father and his Children, or between the Fountain and the small Rivers which descend from thence: The University is Alma mater,19 from whose breasts those of that private College have sucked all their science and knowledge (which I acknowledge to be great and profound) but the Law saith, Erubescit lex filios castigare parentes:20 the University is the fountain, and that and the like private Colleges are tanquam rivuli,21 which flow from the Fountain, et melius est petere fontes quam sectari rivulos.22 Briefly, Academiae Cantabrigiae et Oxoniae sunt Athenae nostrae nobilissimae regni soles, oculi et animae regni, unde Religio, humanitas, et doctrina in omnes regni partes uberrimé diffunduntur:23 but it is true, nunquam sufficiet copia laudatoris, quia nunquam deficiet materia laudis;24 & therefore, these Universities exceed and excell all private Colleges, quantum inter viburna cupressus.25 And it was observed in the said Letters Patents, and the King, and the Parliament in the Act of 14 H. 8. in making of a Law concerningPhysicians, for the more safety and health of men therein, followeth the order of a good Physician (Rex enim omn’ artes censetur habere inscrinio pect’sui26 )for, Medicina |[117 a] est duplex, removens, et promovens; removens morbum, et promovens ad salutem;27 And, therefore, 5. manner of persons (who more hurt the body of men than the disease itself28 ) are to be removed:—1. improbi.29 2. avari, qui medicinam magis avaritiae suae causa quam ullius bonae conscientiae fiducia profitentur.30 3. malitiosi.31 4. temerarii.32 5. inscii.33 and of the other part, 5. manner of persons were to be promoted, as appeareth by the said Act, scil. those who were, 1., profound, 2. sad, 3. discreet, 4. groundedly learned, 5. profoundly studied. And it was well ordained, That the Professors of Physick should be profound, sad, discreet, &c. and not youths, who have no gravity and experience; for as one saith, In juvene Theologo conscientiae detrimentum, in juvene legista bursae detrimentum, in juvene medico caemiterii incrementum.34 And it ought to be presumed, every Doctor of any of the Universities to be within the Statutes, scil. to be profound, sad, discreet, groundedly learned, and profoundly studied, for none can there be Master of Arts (who is a Doctor of Philosophie) under the study of 7. years, and cannot be Doctor in Physick under 7. years more in the study of Physick: and that is the cause that the Plaintiff is named in the Declaration, Doctor of Philosophy, and Doctor of Physick, quia oportet Medicum esse Philosophum, ubi enim Philosophus desinit, incipit Medicus.35 As to the 2. points upon which the Chief Justice, Warburton and Daniel, gave judgment. 1. It was Resolved by them, That the said censors had not the power to commit the Plaintif for any of the Causes mentioned in the barr, and the cause and reason thereof shortly was, That the said clause, which giveth power to the said Censors to fine and imprison, doth not extend to the said Clause, scil. Quod nemo in dicta Civitate, &c. exerceat dictam facultatem, &c.36 which prohibiteth every one to practise Physick in London, &c. without licence of the President and College; but extendeth only to punish those who practise Physick within London, pro delicitis suis in non bene exequendo, faciendo et utendo facultate Medicinae,37 by fine and imprisonment: So that the Censors have not power by the Letters Patents, and the Act to fine or imprison any for practising Physick within London, but only pro delictis suis in non bene exequendo, &c.38scil. for ill and not good use and practise of Physick. And that was made manifest by 5. reasons, called vividae rationes,39 because they had their vigour and life from the Letters Patents and the Act itself. And the best Expositor of all Letters Patents, and Acts of Parliament, are the Letters Patents and the Acts of Parliament themselves, by construction, and conferring all the parts |[117 b] together, Optima Statuti interpretatrix est (omnibus particulis ejusdem inspectis) ipsum Statutum;40 And In ustum est nisi tota lege inspecta una aliqua ejus particula proposita judicare vel respondere.41 The first reason was, that these two were two absolute, perfect, and distinct Clauses, and as parallels, and therefore the one did not extend to the other; for the second beginneth, Praeterea voluit et concessit, &c.42 and the branch concerning fine and imprisonment, is parcel of the second clause. 2. The first Clause prohibiting the practicing of Physick, &c. doth comprehend 4. certainties;—1. certainty of the thing prohibited, scil. practice of Physick. 2. Certainty of the time, scil. practice for one moneth. 3. Certainty of penalty, scil. 5 l. 4. Certainty in distribution, scil. one moyety to the King, and the other moyety to the College; and this penalty he who practiseth Physick in London doth incurr, although he practices and uses Physick well, and profitably for the body of man; and upon this branch the Information was exhibited in the Kings Bench. But the clause to punish delicta in non bene exequendo, &c. upon which branch the case at barr stands, is altogether incertain, for the hurt which may comethereby may be little or great, leve vel grave,43 excessive or small, &c. And therefore the King and the makers of the Act, cannot, for so uncertain offence impose a certainty of the fine, or time of imprisonment, but leave it to the Censors to punish such offences, secundum quantitatem delicti, which is included in these words, per fines, amerciamenta, imprisonamenta corporum suorum, et per alias vias rationabiles et congruas;44 2. The harm which accrueth by non bene exequendo, &c.45 doth concern the body of man; and, therefore, it is reasonable that the offender should be punished in his body, scil. by imprisonment; but he who practiceth Physick in London in a good manner, although he doth it without leave, yet it is not any prejudice to the body of man. [3. He who practises physic in London doth not offend the statute by his practice, unless he practises it by the space of a month.]46 But the clause of non bene exequendo, &c. doth not prescribe any time certain, but at what time soever he ministereth Physick non bene, &c. he shall be punished by the said 2. branch: And the Law hath great reason in making this distinction, for divers Nobles, Gentlemen, and others come upon divers occasions to London, and when they are here they become subject to diseases, and thereupon they send for their Physicians in the Country, who know their bodies and the cause of their diseases; now it was never the meaning of the Act to barr any one of his own Physician; and when he is here he may practise and minister Physick to another by 2. or 3. weeks, &c. without any forfeiture; for any one who practiseth Physick well in London (although he has not taken |[118 a] any degree in any of the Universities) shall forfeit nothing, if not that he practise it by the space of a month; and that was the cause, that the time of a month was put in the Act. 4.47 The Censors, cannot be Judges, Ministers, and parties; Judges, to give sentence or judgment; Ministers to make summons; and Parties, to have the moyety of the forfeiture, quia aliquis non debet esse Judex in propria causa, imo iniquum est aliquem sui rei esse judicem:48 and one cannot be Judge and Attorney for any of the parties, Dyer 3 E. 6. 65. 38 E. 3. 15. 8 H. 6. 19b. 20a. 21 E. 4. 47a. &c. And it appeareth in our Books, that in many Cases, the Common Law doth controll Acts of Parliament, and somtimes shall adjudge them to be void: for when an Act of Parliament is against Common right and reason, or repugnant, or impossible to be performed, the Common Law will controll it, and adjudge such Act to be void; and, therefore, in 8 E. 3. 30 a, b. Thomas Tregor’s Case upon the Statute of West 2. Cap 38. and Artic’ Super Chartas, cap 9. Herle saith, Some Statutes are made against Common Law and right, which those who made them, would not put them in execution: The Statute of West 2. Cap. 21. giveth a Writ of Cessavit haeredi petenti super haeredem tenent’ et super eos quibus alienatum fuerit hujusmodi tenementum:49 and yet it isadjudged in 33 Edw. 3 Cessavit50 42. where the Case was, Two Coparceners Lords and Tenant by Fealty and certain Rent, one Coparcener had issue and dyeth; the Aunt and the Niece shall not join in a Cessavit, because the heir—shall not have a Cessavit for the cesser in the time of his ancestor. F. N. B. 209. F. and therewith agreeth Plow. Com. 110a.; and the reason is, because in a Cessavit the Tenant before Judgment may render the arrearages and damages, and hold his Land again, and that he cannot doe when the heir bringeth a Cessavit for the cesser in the time of his auncestor, for the arrearages incurred in the life of the auncestor do not belong to the heir: and because it shall be against right and reason, the Common Law shall adjudge the said Act of Parliament as to that point void. The Statute of Carlisle, made anno 35 E. 1. enacteth, That the Order of the Cistercians, and Augustines who have a Covent and Common Seal, that the Common Seal shall be in the keeping of the Prior, who is under the Abbot, and 4. others of the most grave of the house; and that any deed sealed with the Common Seal, which is not so in keeping, shall be void: and the opinion of the Court (Anno 27 H. 6 Annuity 41.) was, that this Statute was void, for it is impertinent to be observed, for the Seal being in their keeping, the Abbot cannot seal any thing with it, and when it is in the Abbots hands, it is out of their keeping ipso facto;51 and if the Statute should be observed, every Common Seal shall be defeated upon a simple surmise, which cannot be tryed. Note Reader the words |[118 b] of the said Statute of Carlisle, which was made 35 E. 1. which is called Statutum Religiosorum are, Et insuper ordinavit Dominus Rex et statuit, quod Abbates Cisterc’ et Praemonstraten’ ordin’ religiosorum, &c. de caetero habeant sigillum Commune, et illud in Custodia Prioris Monasterii seu domus, et quatuor de dignioribus et discretioribus ejusdem loci conventus sub privato sigillo Abbatis ipsius loci custod’ depo’, &c. Et si forsan aliqua scripta obligationum, donationum, emptionum, venditionum, alienationum, seu aliorum quorumcunque, contractuumaliosigilloquam tali sigillo communi sicut praemittit’ custodit’ inveniant’ a modo sigillat’, pro nullo penitus habeantur omnique careant firmitate.52 So the Statute of 1 E. 6. c. 14. giveth Chauntries, &c. to the King, saving to the Donor, &c. all such rents, services, &c. and the Common Law doth controll it, and adjudges the same void as to services, and the Donor shall have the Rent, as a Rentseck, distrainable of Common right, for it should be against common right and reason that the King should hold of any, or do service to any of his subjects, 14 Eliz. Dyer 313. and so it was adjudged Mich. 16 & 17 Eliz. in Common Pleas in Strowd’s case. So if any Act of Parliament giveth to any to hold, or to have Conusans of Pleas of all manner of pleas arising before him within his Mannor of D., yet he shall hold no plea, to which he himself is party; for, as hath been said, iniquum est aliquem suae rei esse judicem.53 5. If he should forfeit 5 l. for one month by the first clause, and shall be punished for practising at any time by the second clause, two absurdities would follow, 1. that one should be punished not only twice but many times for one and the same offence. And the Divine saith, Quod Deus non agit bis in idipsum;54 and the Law saith, Nemo debet bis puniri pro uno delicto.55 2. It should be absurd, by the first clause to punish practising for a moneth, and not for lesser time, and by the 2. to punish practising not only for a day, but at any time, so he shall be punished by the first branch for one moneth by the forfeiture of 5 l. and by the 2. by fine and imprisonment, without limitation for every time of the moneth in which anyone doth practise Physick. And all these reasons were proved by two grounds, or Maxims of Law; 1. Generalis Clausula non porrigitur ad ea quae specialiter sunt comprehensa:56 And the Case between Carter and Ringstead, Hil. 34 Eliz. Rot. 120. in Common Pleas, was cited to this purpose, where the case in effect was, That A. seised of the Mannor of Staple, in Odiham, in the county of Southampton in Fee, and also of other Lands in Odiham aforesaid in Fee, suffered a Common Recovery of all, and declared the use by Indenture, That the Recoverer should stand seised of all the Lands and Tenements in Odiham to the use of A. and his wife, and to the heirs of his body begotten; and further, that the Recoveror |[119 a] should stand seised to the use of him, and to the heirs of his body, and died, and the wife survived, and entered into the said Mannor by force of the said general words. But it was adjudged, That they did not extend to the said Mannor which was specially named: and if it be so in a deed, a fortiori,57 it shall be so in an Act of Parliament, which (as a Will) is to be expounded according to the intention of the makers. 2. Verba posteriora propter certitudinem addita ad priora quae certitudine indigent sunt referenda.58 6 E 3. 12 a, b. Sir Adam de Clydrow, Knight, brought a praecipe quod reddat59 against John de Clydrow; and the Writ was, Quod juste, &c. reddat Manerium de Wicombe et duas carucatus terrae cum pertinentiis in Clydrow,60 in that case the Town of Clydrow shall not relate to the Mannor, quia non indiget,61 for a Mannor may be demanded without mentioning that it lyeth in any town; but cum pertinentiis,62 although it cometh after the Town, shall relate to the Mannor, quia indiget. Vide 3 E. 4. 10. the like case. But it was Objected, That where by the second Clause it was granted, that the Censors should have supervisum et scrutinium, correctionem et gubernationem omnium et singulorum Medicorum, &c.63 they had power to fine and imprison. To that it was Answered, 1. That the same is but part of the sentence, for by the entire sentence it appeareth in what manner they shall have power to punish, for the words are, ac punitionem eorum pro delictis suis in non bene exequendo, faciendo, vel utendo illa facultate:64 so that without Question all their power to correct and punish the Physicians by this clause is only limited to these 3. cases, scil. in non bene exequendo, faciendo, vel utendo, &c.65 Also this word punitionem, is limited and restrained by these words, Ita quod punitio eorundem Medicorum, &c. sic in praemissis delinquentium, &c.66 which words, sic in praemissis delinquentium, limit the first words in the first part of this sentence, ac punitionem eorum pro delictis suis in non bene exequendo, &c.67 2. It shall be absurd, That in one and the same sentence the makers of the Act shall give them a general power to punish without limitation; and a special manner how they shall punish, in one and the same sentence. 3. Hil. 38 Eliz. in a Quo warranto68 against the Mayor and Commonalty of London, it was holden, that where a grant is made to the Mayor and Commonalty, that the Mayor for the time being should have plenum et integrum scrutinium, gubernationem, et correctionem omnium et singulorum Mysteriorum, &c.69 without granting them any Court, in which should be legal proceedings, that the same is good for search, by which discovery may be made of offences and defects, which may be punished by the Law in any Court; but it doth not give, nor can give them any irregular or absolute power to correct or punish any of the |[119 b] Subjects of the kingdom at their pleasures. 2. It was Objected, That it is incident to every Court created by Letters Patents, or Act of Parliament, and other Courts of Record, to punish any misdemeanors done in Court, in disturbance or contempt of the Court, by imprisonment. To which it was answered, That neither the Letters Patents nor the Act of Parliamenthathgranted them any Court, but only an authority, which they ought to pursue, as it shall be afterwards said. 2. If any Court had been granted them, they could not by any incident authority implicitè70 granted unto them for any misdemeanor done in Court, commit him to prison without bayl or mainprise, until he shall be by the commandment of the President and Censors, or their Successors, delivered, as the Censors have done in this case. 3. There was not any such misdemeanor for which any Court might imprison him, for he only shewed his case to them, to which he was advised by his Counsel, he may justifie, which is not any offence worthy of Imprisonment.
The Second point. Admitting that the Censors had power by the Act, if they had pursued their Authority, or not? And it was Resolved by the Chief Justice, Warburton and Daniel, that they have not pursued it for 6. causes. 1. By the Act the Censors only have power to impose a fine, or amercement; and the President and Censors imposed the amercement of 5 l. upon the Plaintif. 2. The Plaintiff was summoned to appear before the President and Censors, &c. and did not appear and therefore he was fined 10 l. whereas the President hath not any authority in that case. 3. The fines or amercements to be imposed by them by force of the Act, do not belong to them, but to the King, for the King hath not granted the fines or amercements to them, and yet the fine is appointed to be paid to them in proximis Comitiis,71 and they have imprisoned the Plaintif for nonpayment thereof. 4. They ought to have committed the Plaintif presently by construction of Law, although that no time be limited in the Act, as in the Statute of West 2. cap. 12. De Servientibus, Ballivis, &c. qui ad compotum reddend’ tenentur, &c. cum Dom’ hujusmodi servientium dederit eis auditores compoti, et contingat ipsos in arrearagiis super compotum suum omnibus allocatis et allocandis, arrestentur corpora eorum, et per testimonium auditorum ejusdem compoti mittantur et liberentur proximae gaolae Domini Regis in partibus illis, etc.72 in that case, although no time be limited when the Accomptant shall be imprisoned, yet it ought to be done presently, as it is holden in 27 H. 6. 8 a. and the reason thereof is given in Fogassaes case, Plowd. Com. 17 b. that the generality of the time shall be restrained to the present time, for the benefit of him upon whom the pain shall be inflicted, and therewith agreeth Plow. Com. 206 b. in Stradling’s |[120 a] case. And a Justice of Peace upon view of the force, ought to commit the offender presently. 5. For as much as the Censors had their authority by the Letters Patents and Act ofParliament, which are high matters of Record, their proceedings ought not to be by word, and so much the rather, because they claimed authority to fine and imprison. And therefore if judgment be given against one in the Common Pleas in a Writ of Recaption, he shall be fined and imprisoned; but if the Writ be Vicontiel73 in the Countie, there he shall not be fined or imprisoned, because that the Court is not of Record, F. N. B. in bre Recaption. so in F. N. B. 47 a. a plea of Trespasse vi et armis74 doth not lie in the County Court, Hundred Court, &c. for they cannot make Recordoffineandimprisonment;andregular those who cannot make a Record, cannot fine and imprison. And therewith agreeth 27 H. 6. 8. Book of Entries: The auditors make a Record when they commit the Defendant to prison; A Justice of peace upon view of the force may commit, but he ought to make a record of it. 6. Because the Act of 14 H. 8. hath given power to imprison until he shall be delivered by the President and the Censors, or their Successors, reason requireth that same be taken strictly for the liberty of the Subject (as they pretend) is at their pleasure: And the same is proved by a Judgment in Parliament in this Case; For when this Act of 14 H. 8. had given power to the Censors to imprison, yet it was taken so literally, That the Gaoler was not bound to receive them which they committed to him, and the reason thereof was because they had authority to do it without any Court: And thereupon the Statute of 1 Ma. cap. 9. was made, that the Gaoler should receive them upon a pain, and none can be committed to any prison, if the Gaoler cannot receive him: but the first Act, for the cause aforesaid was taken so literally, that no necessary incident was implyed. And where it was objected, that this very Act of 1 Mariae c. 9. hath enlarged the power of the Censors, and upon the word of the Act; It was clearly resolved, that the said Act of 1 Mariae did not enlarge the power of the Censors to fine or imprison any person for any cause for which he ought not to be fined or imprisoned by the said Act of 14 H. 8. For the words of the Act of Queen Marie are according to the tenor and meaning of the said Act: Also shall send or commit any offender or offenders for his or their offence or dis-obedience, contrary to any article or clause contained in the said grant or Act, to any Ward, Gaol, &c. But in this case Bonham hath not done any thing which appeareth within this Record, contrary to any article or clausecontainedwithin the Grant or Act of 14 H. 8. Also the Gaoler who refuseth shall forfeit the double value of |[120 b] the fines and amerciaments that any offender or dis-obedient shall be assessed to pay; which proveth that none shall be received by any Gaoler by force of the Act of 14 H. 8. but he who may be lawfully fined or amerced by the Act of 14 H. 8. and for that was not Bonham, as by the reasons and causes aforesaid it appeareth. And admit that the Replication be not material, and the Defendants have demurred upon it; yet forasmuch as the Defendants have confessed in the Bar, that they have imprisoned the Plaintif without cause, the Plaintif shall have Judgement: And the difference is, when the Plaintif doth reply, and by his replication it appeareth that he hath no cause of action, there he shall never have Judgement: But when the Bar is insufficient in matter, or amounteth (as this case is) to a confession of the point of the action, and the Plaintif replieth, and sheweth the truth of the matter to enforce his case, and in judgment of Law it is not material; yet the Plaintiff shall have Judgement; for it is true that sometimes the Count shall be made good by the Bar, and sometimes the Bar by the Replication, and sometimes the Replication by the Rejoynder, &c. But the difference is when the Count wanteth time, place, or other circumstance, it may be made good by the Bar, so of the Bar, Replication, &c. as appeareth in 18 E. 4 16b. But when the Count wanteth substance, no Bar can make it good, so of the Bar, Replication, &c. and therewith agree 6 Edw. 4. 2. a good case, and mark there the words of Choke75Vide 18 Edw. 3. 34 b. 44 Edw. 3. 7 a. 12 Edw. 4. 6. 6 Hen. 7. 10. 7 Hen. 7. 3. 11 Hen. 4. 24. &c. But when Plaintiff makes Replication, sur-rejoinder, &c. and thereby it appeareth, that upon the whole matter and Record the Plaintif hath no cause of action, he shall never have judgement, although the Bar or Remainder be insufficient in matter, for the Court ought to judge upon the whole Record, and every one shall be intended to make the best of his own case. Vide Rigeway’s case, in the 3 part of my Reports 52 b. And so these differences were resolved and adjudged between Kendall and Helyer, Mich. 25 & 26 Eliz. in the Kings Bench. And Mich. 29 & 30 Eliz. in the same Court, between Gallys and Burbry. And Coke chief Justice, in the conclusion of his argument did, observe 7 things for the better direction of the President and Commonalty of the said College in time to come. 1. That none can be punished for practising of Physick in London, but by forfeiture of 5 l. by the month, which is to be recovered by the Law. 2. If any practise Physick there for a lesse time than a moneth, that he shall forfeit nothing. 3. If any person prohibited by the Statute offend in non bene exeq’, &c.76 they may punish him according to the Statute within the month. 4. Those who may commit to prison by the Statute ought to commit presently. 5. The fines which they |[121 a] set, according to the Statute, doe belong to the King. 6. They cannot impose a fine, or imprison, without a Record of it. 7. The cause for which they impose fine and imprisonment ought to be certain, for it is traversable; For although they have the Letters Patents and an Act of Parliament, yet because the party grieved hath no other remedy, neither by Writ of Error, or otherwise, and they are not made Judges, nor a Court given to them, but have an authority only to doe, the cause of their commitment is traversable in an action of false imprisonment brought against them; as upon the Statute of Bankrupts, their warrant is under the Great Seal, and by Act of Parliament; yet because the party grieved hath no other remedy if the Commissioners doe not pursue the Act and their Commission, he shall traverse, That he was not a Bankrupt, although the Commissioners affirm him to be one; as this Term it was resolved in this Court, in Trespass between Cutt and Delabarre, where the issue was, whether William Piercy was Bankrupt or not, who was found by the Commissioners to be a Bankrupt; à fortiori77 in the Case at Bar, the cause of the imprisonment is traversable; for otherwise the party grieved may be perpetually, without just cause, imprisoned by them: But the Record of a force made by one Justice of Peace is not traversable, because he doth it as Judge, by the Statutes of 15 Rich. 2. and 8 Hen. 6. and so there is a difference when one maketh a Record as a Judge, and when he doth a thing by special authority, as they did in the case at Bar and not as a Judge. And afterwards for the said two last points, Judgement was given for the Plaintif, nullo contradicente78 as to them. And I acquainted Sir Thomas Fleming, Chief Justice of the Kings Bench with this Judgement and with the reasons and causes thereof, who approved of the Judgement which we had given: And this is the first Judgement upon the said Branch concerning fine and imprisonment, which hath been given since the making of the said Charter and Acts of Parliament, and therefore I thought it worthy to be Reported and published.
The Case of Thetford School, &c.
(1609) Easter Term, 7 James 1.
First Published in the Reports, volume 8, page 130b.
Ed.: This case is a consideration of the interpretation of a trust for charitable purposes. Thomas Fulmerston gave lands to “certain people” so that the income from the lands could support a preacher for four days a year, the erection of a free school and maintenance of four poor people. The land grew in value so that there was greater income than necessary, andthepeople acting as trustee wanted to keep the excess. The Lords ruled that the excess must be used in accord with the grantor’s intent, and the excess was used to support more poor people.
Upon a private bill exhibited in the Parliament for erection of a Free-school, maintenance of a Preacher, and of 4 poor people, Scil. 2 poor men, and 2 poor women according to the Will of Sir Thomas Fulmerston, Knight a Question was moved by the Lords, and was such: Land of the value of 35 £. Anno 9 Eliz. was devised by Will in writing to certain persons and their heirs, for the maintenance of a Preacher four days in the year; Of a Master and Usher of a Free Grammar School and of certain poor people, and a special distribution was made by the Testator himself, in the same Will, amongst them, of the Revenues, scil. To the Preacher a certain sum, and certain sums, to the Schoolmaster and Usher, and to the Poor people, amounting in the whole to 35 £ per annum, which was the yearly profit of the Land at that time; and afterwards the lands became of greater value; viz. the value of 100 £ per annum. Now 2 Questions were moved.
—1. if the Preacher, School-master, Usher, and Poor, should have only the certain sums appointed to them by the Founder, or that the Revenew and profit of the Land should be imployed to the increase of the Stipend of the Preacher, School-master, Usher, and Poor?
2. If any surplusage |[131 a] doth remain, how it should be imployed?
And it was Resolved, on hearing of Councel learned on both parts several dayes at Serjeants Inn, by the two Chief Justices, and Justice Walmsey (to whom the Lords referred the consideration of the Case) That the Revenew and profit of the said Lands should be imployed to the encrease of the Stipend of the Preacher, School-master, &c. and Poor; and if any surplusage doeth remain, it should be expended for the maintenance of a greater number of Poor, &c. and nothing should be converted by the Devisees to their own uses. So in the Case in Question, Where Lands in Croxton, in the County of Norfolk, were devised by Sir Richard Fulmerston, to his Executors, to find the said works of Piety and Charity, with such certain distribution as is aforesaid; and now the value of the Mannor was greatly encreased, that it shall be employed in performance and encrease of the said works of Piety and Charity instituted and erected by the Founder: for it appears by his distribution of the profits, that he intended all should be imployed in works of Piety and Charity, and nothing should be converted to the private use of the Executors or their heirs. And this Resolution is grounded on evident and apparent reason; for, as if the Lands had fallen in value, the Preacher, School-master, &c. and Poor people should lose, so when the Lands doe increase in value, by the same reason they shall gain. And they said, that this Case did concern the Colleges in the Universities of Cambridge and Oxford, and other Colleges, &c. For in old time when Lands were of small value, (victuals then being cheap,) and were given for the maintenance of poor Scholars, &c. and that every scholar, &c. should have 1 d. or 1 d. ob. a day, that then such small allowance was Competent in respect of the price of victuals, and the yearly value of the Land; and now the price of victuals being encreased, it shall be injurious to allow a Poor scholar 1 d. or 1 d. ob. a day, which cannot keep him, and to convert the residue to private uses, where, in right it ought to be imployed to the maintenance or encrease (if it may be) of such works of Piety and Charity which the Founder has expressed, and nothing to any private use; for every College is seised in jure Collegii, scil.1 to the intent that the members of the College, according to the intent of the Founder, should take the benefit thereof and that nothing should be converted to private uses. Panis |[131 b] egentium vita pauperum, et qui defraudat eos homo sanguinis est.2 And afterwards upon Conference had with the other Justices, they were of the same opinion; and according to their opinions the Bill passed in both Houses of Parliament, and afterwards was confirmed by the Kings assent. Note, Reader, there is a good Rule in the Act of Parliament called Statutum Templariorum: Ita semper quod pia et celeberrima voluntas Donatoris in omnibus teneatur et expleatur, et perpetuo sanctissime perseveret.3
[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.]
[3. ][Ed.: To God, to the country, to you.]
[4. ][Ed.: records of age and truth.]
[5. ]Ex vita Abbatis sancti Albabani.
[6. ][Ed.: the good, approved, and ancient laws of the Kingdom.]
[7. ]Ex lib. Monast. de Lichfield.
[8. ][Ed.: to the right [or] the left,]
[9. ]Ex Ingulpho Abbate Crowlandense. Ex libro Antiquarum legum.
[10. ]Ex libro manuscripto de legibus antiquis.
[11. ][Ed.: William, by the grace of God king of the English, duke of the Normans, to all his men, French and English, greeting. We command firstly, above all things, that God be venerated throughout our realm, the faith of Christ kept for ever inviolate, and peace, security and concord, judgment and justice between English and Normans, French and Britons, Welsh and Cornish, Picts and Scots of Albany, likewisebetween [blank] and the islanders, the province and countries which belong to the crown and dignity, defence, notice and honour of our kingdom, and among all our subjects throughout the whole monarchy of the kingdom of Britain, be firmly and inviolably observed.]
[12. ]Ex Math. Par. monacho sancti Albani.
[13. ]Ex Rogero Hoveden presbitero.
[14. ]Ex Mat. Par.
[15. ]Ex Roger Hoveden.
[16. ]Ex Florentio-monach. Wigorn.
[17. ]Ex Willielmo monacho Malmesbur.
[18. ]Ex libro legũ Antiquarum.
[19. ]Ex libro Rogeri Bacon de impedimentis sapientie.
[20. ]Ex libro legũ Antiquarum.
[21. ]Ex Stephanide monacho Cát.
[22. ]Math. Par. an. domini 1215. pa.246. 247.
[23. ]Math. Par. pa. 246.
[24. ]Magna Carta. 9.H.3.
[25. ]Ex Monache Crowlandiae.
[26. ]Ex Math. Westm.
[27. ]26. lib. Assi. pl. 24.
[28. ]6. Ed. 3. 54. 55.
[29. ]15. Mich. 6. Ric. primi.
[30. ]Pl. Com. in Stowels case.
[31. ]Ex. rot. Pat. de anno 1.H.3.
[32. ]10. Ed. 4. 53.
[33. ]Joh. Briton Episcopus Heref.
[34. ]Math. Par. pa. 350.
[35. ]St. Merton c.9.
[36. ][Ed.: no one speaking against.]
[37. ]He did beare azure, a chiefe indented or: which coatearmor the Pastons of Norf: doe quarter at this day.
[38. ]Justiciarius Angliae. [Ed.: For translations of notes 38–50 see note 51.]
[39. ]Fundator prioratus de Butteley.
[40. ]Donum Regis.
[41. ]Uxor eius.
[42. ]Filiae eius.
[43. ]Nuptie et dotationes filiarũ, & earum posteritas.
[44. ]Vir preclariffimus de nobili sanguine.
[45. ]Vir strenuissimus.
[46. ]Vide Pl. com. f.
[47. ]368. b. obijt apud Acres.
[48. ]Ad terram sanctam peregrinatus.
[49. ]Effusio sanguinis contra inimicos Christi.
[50. ]Prosapia uxoris Bertae.
[51. ][Ed.: Ranulph de Glanville, Justiciar of England, was founder of the house of Buttely in county Suffolk, which was founded in year 17 of the reign of Henry the son of the empress, and in the year of the Lord 1171, the same year that Thomas Becket the Archbishop of Canterbury was slain. And said Ranulph was born in the vill of Stratford in county Suffolk and held the manor of Benhall with full dominion, by gift of the said king Henry. And he took to wife Berta, the daughter of Lord Theobald Valeymz senior, Lord of Parham, and this Theobald gave by his charter to said Ranulph and Berta his wife all the land of Brochous, where the home of Butteley is situated, with its appurtenances, along with other lands and tenements, Said Ranulph sired three daughters from said Berta, namely Matilda, Amabilia and Helewisa, to whom he gave his land before his pilgrimage to the Holy Land. Matilda, the first sister, had as a gift from her father the whole vill of Benhall along with a claim on the church or monastery of Holy Mary of Butteley, and she wed a certain knight by the name of Will de Auberville, from whom was born Hugo of Auberville, from whom was born Will de Auberville, from whom was born a certain Joan, sole daughter and heir, who wed a certain knight from Kent by the name of Nicholas Kyryell, who took to wife Margaret the daughter of Lord Galfridus Peche; and that Nicholas sold to Lord Guido Ferr said manor of Benhall: and then Nicholas sired from his wife another Lord Nicholas, a knight in Kent, who lived before the first plague. And said Guido entailed said manor in the court of the Lord King at Westminster on the morrow of the Ascension of the Lord, in the first year of the reign of king Edward the son of Edward I, to him and his wife Eleanor and the heirs proceeding from him. And if Guido himself died without an heir, he bequeathed the estate to Will de S. Quintinus and his heirs. Amabilia, the second daughter, had as a gift from her father half of the vill of Bawdesia and half of the vill of Fynbergh. Amabilia had a husband by the name of Radulph de Ardern, from whom was born Thomas de Ardern his son and heir, and Thomas in turn sired Radulph his son and heir, who enfeoffed the prior and convent of Butteley with half of the vill of Bawdesey. Said Radulf sired a certain Thomas Ardern his son and heir. Helewisa, the third sister, had as a gift from her father half of the said vill of Bawdesey, and also half of the said vill of Fynbergh. Said Helewisa had a husband by the name of Robert son of Robert, and from him was born Radulph his son and heir, who enfeoffed Warinus de Insula with said half of the vill of Fynbergh. From Radulph was born Robert his son and heir, who enfeoffed Ranulph his brother with said half of the vill of Bawdesey. And note, that said Ranulph de Glanville was a man of very distinguished birth, of noble blood and enormous strength of body, who at an advanced age made a pilgrimage to the Holy Land, and there battled vigorously to the death against the enemies of Christ. Moreover, Berta was of an illustrious family, the daughter of Lord Theobald Valeymz senior, Lord of Parham, and Ranulph and Berta had many kinsmen, many of whom were knights, and all of whom were gentlemen of noble birth, and they and their illustrious progeny for many years gave great honor to county Suffolk.]
[52. ][Ed.: A formed writ is like a rule of law.]
[53. ][Ed.: the best and most speedy remedy.]
[54. ][Ed.: [to show] why he broke his close (the writ of trespass).]
[55. ][Ed.: great by omen, by name, by power.]
[56. ][Ed.: in this forensic manner of speaking.]
[57. ][Ed.: to speak rather in my own language than in Latin.]
[58. ][Ed.: Farewell.]
[* ]The 1658 edition spelled these names “Vinyor” and “Wylde”; the names here have been set astoconform to later citations.
[** ]See the pleadings at Trinit. 7 Jac. Rot. 2629.
[1. ][Ed.: made no arbitration upon and concerning the foregoing.]
[2. ][Ed.: namely on the twenty-second day of August in the above-mentioned sixth year, at Themilthorpe aforesaid, the aforesaid William Wilde by a certain writing of his dated the same day and year revoked and abrogated—in English ‘did call back’—all the authority whatsoever which the same William Wilde had, by the aforesaid bond, given and committed to the said William Rugge, his arbitrator, and then wholly disavowed and held as void all and whatever the said William Rugge [had awarded] for him in and about the said arbitration, rule, etc., after the delivery of the same writing, wherefore, inasmuch as the aforesaid William Wilde after the making of the aforesaid writing and before the aforesaid feast of Michaelmas then next following discharged and abrogated the aforesaid arbitrator in form aforesaid from all authority to arbitrate upon and concerning the foregoing specified above in the aforesaid condition, against the form and effect of that condition and the submission mentioned therein, the same Robert prays judgment, etc.]
[3. ][Ed.: no action arises from a void submission [to arbitration].]
[4. ][Ed.: revoked and abrogated all authority, etc.]
[5. ][Ed.: that he did not revoke, etc.]
[6. ][Ed.: that he enfeoffed, gave [demised for life].]
[7. ][Ed.: [that he enfeoffed, gave] demised for term of life.]
[8. ][Ed.: that is to say.]
[1. ][Ed.: That whereas the function of his royal office was considered to have regard, by virtue of his authority, to the happinessofmen of allkinds, but firstandforemosttoopposeopportunelytheundertakings of the wicked, etc.]
[2. ][Ed.: that they and all men of the same faculty of and in the city of London be in fact and in name a corporation and perpetual community by the name of the president and college or community of the faculty of medicine of London, etc.]
[3. ][Ed.: We also grant to the same president and college or community, and their successors, that no one within the same city or within seven miles thereof should exercise the said faculty of medicine unless he has been admitted thereto by the said president and community, or their successors for the time being, by the letters of the same president and college sealed with their common seal, under pain of one hundred shillings for every month in which they exercise the same faculty while not admitted, one half thereof to be paid to the lord king and his heirs and one half to the said president and college, etc.]
[4. ][Ed.: He further willed and granted for himself and his successors, as much as in him was, that every year four persons should be elected by the president [and] college [or] community aforesaid for the time being, and their successors for ever, who should havethesupervision and scrutiny, correction and governance of all and singular the physicians [medici] of the said city using the faculty of medicine in the same city, and of all other foreign physicians [i.e. from outside the city] whatsoever frequenting and using in any way the faculty of medicine within the same city, and the suburbs thereof, or within seven miles of the same city, and the punishment of the same for their offences in not well executing, performing and using the same, and also the supervision and scrutiny of all medicines and of their receipt by the said physicians, or any of them, to be given to, imposed on and used for the said late king’s lieges for curing and healing their infirmities as often and whenever the need arises, for the benefit and utility of the same lieges of the said late king, so that the punishment of the same physicians using the said faculty of medicine who thus offend in the foregoing respects shall be carried out by fines, amercements and imprisonment of their bodies, and by other reasonable and suitable ways, as by the said charter more fully appears. [And that by force of said letters patent the said John Chambre, Thomas Linacre, etc., and all the men of the same faculty in the said City, were] one corporation and perpetual community or college for ever.]
[5. ][Ed.: in as ample and large a manner as it may be accepted, intended and construed by the same letters patent.]
[6. ][Ed.: chosen, the elected.]
[7. ][Ed.: That the grant by letters patent of incorporation made by the aforesaid late kingtothephysicians of London, and all the clauses and articles contained in the same grant, be approved, granted, ratified and confirmed by the aforesaid parliament; in consideration whereof it was enacted by authority of the same parliament that the aforesaid statute and act of parliament, [and] all the articles and clauses contained in the same, should thenceforth stand and continue in full force, etc.]
[8. ][Ed.: exercised the art of medicine, not being admitted by letters of the aforesaid president and college sealed with their common seal, whereas in truth the aforesaid Thomas Bonham was insufficiently qualified to exercise that art.]
[9. ][Ed.: for examination of the foregoing.]
[10. ][Ed.: And because the aforesaid Thomas Bonham, being so examined, answered ineptly and insufficiently in the aforesaid art of medicine, and was found upon the aforesaid examination by the aforesaid president and censors to be insufficient and inexpert to practise the art of medicine, and forasmuch as the aforesaid Thomas Bonham has often previously been examined and banned by the president and censors, for the causes aforesaid, from practising the art of medicine, he for one month and more after such interdiction [exercised] that faculty in London aforesaid without licence, etc., therefore it was then and there decided by the aforesaid president and censors that the aforesaid Thomas Bonham should be amerced one hundred shillings for his aforesaid disobedience and contempt, to be paid at the next meeting oftheaforesaid president and college, and in the meantime to abstain etc. until he should be found sufficient, etc., on pain of being put in prison if he should offend in the premises.]
[11. ][Ed.: Therefore it was decided by the aforesaid censors,]
[12. ][Ed.: for the aforesaid offences and disobedience then and there ordained and decreed that the aforesaid Thomas Bonham be sent to prison, there to remain until he should be delivered from thence by the president and censors, or governors, for the time being, of the aforesaid college.]
[13. ][Ed.: Namely, no one in the said city, etc. should exercise the same faculty unless thereto admitted, etc. by the aforesaid president and community, etc.]
[14. ][Ed.: a general statement shall be understood generally.]
[15. ][Ed.: no one.]
[16. ][Ed.: strictly and exclusively.]
[17. ][Ed.: No one in the said city, etc.]
[18. ][Ed.: That no one in the said city, etc. should exercise, etc.]
[19. ][Ed.: Literally, “nursing mother,” usually thought of in the sense of a foster mother.]
[20. ][Ed.: The law blushes when children chastise [their] parents:]
[21. ][Ed.: like streams.]
[22. ][Ed.: it is better to seek out the sources than to follow the streams.]
[23. ][Ed.: The universities of Oxford and Cambridge alone are the noblest Athens of the kingdom, the eyes and minds of the realm, whence religion, humanity and learning are best diffused into all parts of the kingdom.]
[24. ][Ed.: there can never be enough praise, because there never wants matter to praise.]
[25. ][Ed.: like a cypress among the bushes.]
[26. ][Ed.: (For the king is reckoned to have all the arts encased in his breast)]
[27. ][Ed.: physic is of two kinds, remotive and restorative: that is, removing illness, and restoring to health.]
[28. ][Ed.: The 1658 edition omits here this line: one of which said of one of their patients, “fleeing from the disease, he meets a physician.”]
[29. ][Ed.: bad.]
[30. ][Ed.: greedy, who profess physic more by reason of avarice than any reliance on good conscience.]
[31. ][Ed.: malicious.]
[32. ][Ed.: timorous.]
[33. ][Ed.: ignorant.]
[34. ][Ed.: In a young theologian there is loss of conscience, in a young lawyer loss of money, in a young physician a filling of the cemetery.]
[35. ][Ed.: because it behoves a physician to be a philosopher, but where the philosopher leaves off the physician begins.]
[36. ][Ed.: Namely, that no one in the said city, etc., should exercise the said faculty, etc.]
[37. ][Ed.: for their offences in not well executing, exercising and using the faculty of medicine.]
[38. ][Ed.: for their offences in not well executing, etc.]
[39. ][Ed.: vivid reasons.]
[40. ][Ed.: The best interpreter of a statute, once all the points thereof have been looked into, is the statute itself.]
[41. ][Ed.: Unless the whole of the law has been looked into, it is unjust to adjudge or answer in any one point that has been propounded.]
[42. ][Ed.: He moreover wills and grants, etc.]
[43. ][Ed.: light or serious.]
[44. ][Ed.: according to the seriousness of the offence...by fines, amercements, imprisonment of their bodies, and by other reasonable and suitable ways.]
[45. ][Ed.: not well executing, performing [medicine], etc.]
[46. ][Ed.: The clause here bracketted was omitted from the 1658 edition.]
[47. ][Ed.: not well executing, etc.]
[48. ][Ed.: because no one ought to be a judge in his own cause, it is wrong for anyone to be the judge of his own property.]
[49. ][Ed.: “To the heir of the plaintiff against the heir of the tenant, and against those to whom such a tenement should be alienated,” opening words of the writ of cessavit.]
[50. ][Ed.: Writ by a fee-holder to recover lands from a tenant who owed rents or services that had been withheld for two years or more; a form of eviction.]
[51. ][Ed.: by that fact.]
[52. ][Ed.: And moreover the lord King has ordained and laid down that abbots of the Cistercian and Premonstratensian orders [and other] religious orders etc. from henceforth should have a common seal, in the custody of the prior of the monastery or house and four of the more worthy and discerning men of the convent of the same place, to be laid up in safe keeping under the private seal of the abbot of the same place etc. And if it should happen that any writings of bonds, donations, purchases, sales, alienations, or any other contracts, be hereaftersealedwithanyother sealthansuchcommonsealkeptasaforementioned, they are to be deemed void and to lack all force.]
[53. ][Ed.: it is wrong to be a judge of one’s own property.]
[54. ][Ed.: God does not proceed twice against the same person.]
[55. ][Ed.: No one ought to be punished twice for one offence.]
[56. ][Ed.: A general clause is not to be extended to something which is specially mentioned.]
[57. ][Ed.: so much the more so.]
[58. ][Ed.: Subsequent words, added for the purpose of certainty, are to be referred back to the previous words which lack certainty.]
[59. ][Ed.: Writ commanding the defendant to act or show cause why he had not acted; a predecessor to the injunction.]
[60. ][Ed.: that rightfully, etc. he render the manor of Wicomb and two carucates of land with the appurtenances in Clydrow. (A carucate is approximately 100 acres.)]
[61. ][Ed.: because [this inference] is not needed.]
[62. ][Ed.: with the appurtenances.]
[63. ][Ed.: supervision and scrutiny, correction and governance of all and singular the physicians, etc.]
[64. ][Ed.: and their punishment for their offences in not well executing, exercising, or using that faculty.]
[65. ][Ed.: in not well executing, exercising or using, etc.]
[66. ][Ed.: so that the punishment of the same physicians, etc., thus offending in the premises, etc.]
[67. ][Ed.: and their punishment for their offences in not well executing, etc.]
[68. ][Ed.: Writ against one who exceeds or usurps a prerogative granted by the crown.]
[69. ][Ed.: the full and entire scrutiny, governance and correction of and singular the crafts, etc.]
[70. ][Ed.: implicitly.]
[71. ][Ed.: at the next meeting.]
[72. ][Ed.: Concerning servants, bailiffs, etc., who are bound to render an account, etc., when the lords of such servants appoint auditors of their account, and they happen to be in arrears upon the account, everything being allowed which ought to be allowed, their bodies are to be arrested and, by the evidence of the auditors of the same account, sent and delivered to the next gaol of the lord king in those parts, etc.]
[73. ][Ed.: Writ triable in the court of the sheriff, the old county court.]
[74. ][Ed.: with force and arms.]
[75. ][Ed.: The French here is “nota la dictum Choke.”]
[76. ][Ed.: not well executing, etc.]
[77. ][Ed.: so much the more so.]
[78. ][Ed.: no one opposing.]
[1. ][Ed.: in law of the College, that is to say.]
[2. ][Ed.: The bread of the needy is their life; who defrauds them of it is a man of blood (murderer). Eccles. 34:25).]
[3. ][Ed.: In such a way that the intent of the Donor be faithfully and continuously observed in all things, be carried out in full, and remain forever inviolate.]