The Online Library of Liberty

A project of Liberty Fund, Inc.

• Acknowledgments and Dedicatory
• A Note On the Texts, Editions, and Translations
• Introduction
• Chronology of Events
• Editions of Coke’s Works
• Mottoes and Crests of Sir Edward Coke
• I: Reports
• Part One of the Reports
• The Preface to the Reader.
• Shelley’s Case.
• Part Two of the Reports
• (preface) to the Learned Reader.
• Manser’s Case.
• The Case of Bankrupts.
• |[46 A] the Archbishop of Canterbury’s Case. *
• Part Three of the Reports
• (preface) to the Reader.
• Heydon’s Case.
• Fermor’s Case.
• Part Four of the Reports
• (preface) to the Reader.
• The Lord Cromwell’s Case. *
• Cutler V. Dixon.
• Vaux’s Case.
• Slade’s Case.
• Part Five of the Reports
• (preface) to the Reader.
• Foster’s Case.
• Cases of By-laws and Ordinances the Chamberlain of London’s Case.
• Clark’s Case.
• The Case of Market-overt.
• Semayne’s Case.
• Rooke’s Case.
• Pinnel’s Case.
• |[125 A] the Case De Libellis Famosis.
• Part Six of the Reports
• (preface) to the Reader.
• Jentleman’s Case.
• Part Seven of the Reports
• (preface) Deo, Patriae, Tibi. 2
• Calvin’s Case, Or the Case of the Postnati. 1
• The Case of Swans.
• Penal Statutes.
• Part Eight of the Reports
• (preface) Deo, Patriae, Tibi. 3
• Vynior’s Case. *
• Dr. Bonham’s Case.
• The Case of Thetford School, &c.
• Part Nine of the Reports
• (preface) Deo, Patriae, Tibi. 3
• William Aldred’s Case.
• John Lamb’s Case.
• Mackalley’s Case. (in the Killing of the Sergeant of London.)
• Part Ten of the Reports
• (preface) Deo, Patriae, Tibi. 5
• The Case of Sutton’s Hospital.
• The Case of the Isle of Ely.
• Part Eleven of the Reports
• (preface) Deo, Patriae, Tibi. 4
• The Lord De La Warre’s Case.
• The Case of the Tailors of Habits &c. of Ipswich.
• The Case of Monopolies.
• James Bagg’s Case.
• Part Twelve of the Reports
• Ford and Sheldon’s Case.
• Case of Non Obstante, Or Dispensing Power.
• Q. If High Commissioners Have Power to Imprison.
• Floyd and Barker.
• Of Oaths Before an Ecclesiasticall Judge Ex Officio.
• Of Pardons.
• Customs, Subsidies, and Impositions.
• Buggery. 1
• Premunire.
• Nicholas Fuller’s Case.
• Sir Anthony Roper’s Case.
• Sir Anthony Roper’s Case.
• The Case of Heresy.
• Langdale’s Case.
• Mouse’s Case.
• Prohibitions Del Roy.
• The Lord Aburgaveney’s Case.
• Of Convocations.
• Proclamations.
• Thomlinson’s Case.
• Walter Chute’s Case.
• Sir Stephen Procter’s [proctor’s] Case.
• Exaction of Benevolence.
• Part Thirteen of the Reports
• (preface) to the Reader.
• Prohibitions.
• The Case De Modo Decimandi, 1 and of Prohibitions, Debated Before the Kings Majesty.

Part Nine of the Reports

The Ninth Part of Coke’s Reports was published in 1613. It was originally entitled La Neufme part des reports del Sr. Edw. Coke chivalier, chief justice del common bank: divers resolutions & judgments dones fur solemne arguments, & avec grand deliberation & conference des tres-reverend judges & sages de la ley, de cases en ley queux ne fueront unques resolve ou adjudges par devant: et les raisons & causes des dits resolutions & judgments: publie en le dixiesme an de treshaut & tres-illustre Jaques Roy Dengleterre, France & Ireland, & de Escosse le 46, le fountain de tout Pietie & Justice, & la vie de la ley. In English, The Ninth 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 tenth year of the most high and Most Illustrious James, King of England, France, and Ireland, and of Scotland the 46., the Fountain of all Justice, and the life of the Law. Coke here presented another wide-ranging series of topics, including cases in property, criminal law, delivery of an instrument, copyhold, ravishment of a ward, libel, trespass, debt, trusts, leases, and procedure. A large number of these cases were decided in the Court of Wards.

Epigrams from the Title Page:

(Preface) Deo, Patriae, Tibi.3

Seeing the light touch I gave in my preface to mine eight worke[s] out of consent of historie, hath with the judicious Reader (finding it consonant to judiciall record) wrought so good effect, I will adde somewhat thereunto, which I am persuaded will adde to their satisfaction and solace therein, who do reverence and love (as all men ought) the nationall Lawes of their native countrey. I have a very auntient and learned treatise of the Lawes and usages of this kingdome whereby this Realme was governed about 1100. years past, of the title and subject of which booke the Author shal tel you himeselfe in these words.In Proemio The Book called The Mirror of Justices. Cap. I. §. 1.Which summary I have intituled, The Mirror of Justices, according to the vertues and substances embellies which I have observed, and which have been used by holy Customs since the time of King Arthur, &c. And soon after. The Law whereof this Summary is made, is of antient Usages warranted by holy Scripture; and because it is generally given to all, it is therefore called Common.The Laws warranted by holy Scripture.And for that there is no other Law but this, this alone of Antiquities is by general Councils or Parliaments permitted to be used by holy Usages, &c.

In this Book in effect appeareth the whole frame of the ancient Common Laws of this Realm, as by these few particulars shall appear: As the diversity and distinction of the Courts of Justice (which are Officinae Legis.4 )

Why they be called the Common Laws Counsels general or Parliaments.And first of the High Court of Parliament, which Court is mentionedbefore by the name of Council general, or Parliament, and cap. 1. § 3. King Alfred ordaineth for a Usage perpetual, that twice in the year, or oftner if need be, they shall assemble themselves at London to treat in Parliament of the Government of the People of God,The High Court of Parliament. Cro. Arg. 54. how they should keep themselves from sin, should live in quiet, and should receive right by certain Laws and holy judgments, &c.

2. The Court of Chancery. It was ordained, that every one upon complaint, should have out of the Kings Chancery a Writ remedial, without any difficulty, &c.Cap. 1. §. 3. The Court of Chancery. 5. §. 1. In the time of King Alfred there was no Writ of Grace, but all Writs were remedial, grantable (as of duty) by vertue of an Oath, &c.

Cap. 4. Of Jurisdiction. The Kings Bench.3. The Kings Bench. Chief Justices holding Pleas of the King. And soon after. To the Office of the Chief Justices belongeth, to redress and punish by Writ the wrongful Judgments, Wrongs and Errors of other Justices; and to cause to come before the King the Parties and the Record with the original Writ. And before these Justices are all Writs pleadable, returnable and determinable, where it is mentioned, Before the King himself, &c. It belongeth, also to their Office to hear and determine all Plaints of personal Wrongs done within twelve miles of the King: And to deliver the Gaol of Prisoners deliverable; and to determine all that is determinable by Justices in Eyre, and more or less, according to the nature of their Commission.

Cap. 4. §. eodem. The Court of Common Pleas.4. The Court of Common Pleas. To the Justices of the Bench power is given to take Fines, to hear and determine grand Assizes, Common Pleas, &c.

5. The Court of Exchequer. Moreover the Barons of the Exchequer have Jurisdiction over the Kings Receivers and Bailiffs and of the alienation of the fiefs (or fees) and Rights belonging to the King,Eodem c. §. eodem. The Court of Exchequer. and to the Rights of his Crown, &c.

6. Justiciarii itinerantes,5or Justices in Eire. The Kings do Right to all Men by their Justices, Commissioners itinerant, assigned to have Conusans of all Pleas.Cap. 1. §. 3. The Office of Justices in Eire. In aid of such Eires, the Sheriffs Turns and Views of Frankpledges are necessary. And all those whom the good Men of such Enquests did endite of a capital offence, the Kings were wont to destroy without any Answer; which Usages are yet in practise in Almaigne: But by Warrant of Pity and Mercy (because the frailty of Man cannot refrain from sin, unless God of his Grace give him abstinence) It is accorded, That no Appellee or Inditee shall be destroyed without Answer.

Cap. §. 16. The Sheriffs Turn.7. The Sheriffs Turn, whereof mention is made before. The Sheriffs, of ancient Ordinance, do hold general Assemblies twice a year in every Hundred, whither all the Freeholders, within the Hundred are bound to come by the service of their Fiefs (or Fees) that is to say, once after Michaelmas, and another time after Easter. And because the Sheriffs, for the doing hereof, make their Turns (or Courses) through the Hundred, such Assemblies are called the Sheriffs Turns. Where, it belongeth to the Sheriffs, to enquire of all Offences personal, and of all the circumstances of Offences done in those Hundreds; and of Wrongs done by the Kings and Queens Ministers; and of Wrongs done to the King and to the Commonalty, according to the Articles aforesaid in the Divisions of Offences.

Cap. 1. §. 17. De Views de Frankpledge.8. Leets on Courts des Views de Frankpledge. Concerning these Assemblies, first it is thus ordained, That every Hundredor shall assemble once a year; and not only Freeholders, but all of the Hundred, as well Strangers as Denizens, from twelve years upwards (except Archbishops, Bishops, Abbots, Priors and all Religious People and Clerks, Eàrls, Barons and Knights, married Women, persons dumb and deaf, Diseased, Bastards and Lepers, and those that are Deciners elsewhere) to enquire of the points aforesaid, and of the Articles following; and that not by Bondmen or Women, but by the Oaths of twelve Free-men at the least; for a Bondman cannot indite a Free-man, nor no other that is not receivable to do suit in the same Courts. And because it was anciently ordained, That none should abide in the Realm, if he were not in some Decine (or Tything) and undertaken for by Free-men, the Hundredors are once a year to view the Frankpledges and the Sureties: And therefore are such Views called Views of Frankpledges.

Cap. 1. §. 15. The County Court.9. The County Court. The Sheriffs hold a Court from Month to Month, or from five Weeks to five Weeks, according to the greatness and largeness of the Country; and these Courts are called Counties, where the Judgments are given by the Suitors, if there be no Writ: And this warranted by ordinary Jurisdiction.

Cap. 1. §. 15. Court Baron and Hundred Court.10. Court Barons and Hundred Courts. The other mean Courts, arethe Courts of every Lord of the Fee, &c.

11. Courts de Pipowders. And that from day to day speedy Justice be done to Strangers in Fairs and Markets, as of Pipowders according to the Law of Merchants.

Court of Pipowders. Cap. 1. §. 3. & §. 15. of mean Courts.12. Court de Admiralty. The King hath Sovereign Jurisdiction upon the Sea.

13. Courts of the Forest. The Kings Ministers of his Forest have power, by authority of their Office,Cap. 1. §. 3. Court of Admiralty. to swear Men without the Kings Writ for the safegard of the Peace, and for the Kings Right and the common good, &c.

He also treateth of the Professors of the Law, as of the Countors, that is, of the Serjeants and other Pleaders.Cap. 1. §. 13. Courts of the Forest. There are many that cannot prosecute nor defend their own Causes in Judgment, and many which may not: And therefore are Countors necessary,Cap. 2. §. 5. Of Countors. that that which the Plaintiffs and Actors may not or cannot do by themselves, they may do by their Serjeants, Proctors or Friends. Countors are Serjeants skilful in the Law of the Realm, which serve the common people to prosecute and defend their Actions in Judgment (when need is) for their Fee.

And also of Attornies, where amongst other things it is said, None may be an Attorny, which may not be a Countor, &c.

Cap. 1. §. 3.Of the Ministers of Justice, as Viscounts, Coroners, Escheators, Bailiffs of Hundreds, &c. Also by the ancient Kings, Coronerswere or dained inevery County, and Sheriffs to keep the Peace when the Earls were absent from their Charges, and Bailiffs in lieu of Hundredors, &c.

Ca. eodem §. eodem.Of the Prerogatives of the King: As of Deodands, Alienation to Aliens, Treasure found, Wreck, Waif, Estray, Chattels of Felons and Fugitives, Counties, Honors, Hundreds, Sokes, Gaols, Forests, chief Cities, chief Ports of the Sea, great Maners: These held the first Kings as their Right, and of the residue of the Land did enfeoff the Earls, Barons, Knights, Serjeants and others to hold of the Kings, by services provided and ordained for defence of the Realm. It was ordained, that the Knights Fee should come to the eldest by Succession of Heritage; and that Socage Fee should be partable between the male Children: And that the Liege Lords should have the Marriage.

He treateth in the first Chapter of Crimes, and their Divisions of the Crime of Majesty, of Fausonnery,6 of Treason, of Burning, of Homicide, of Felony, of Burglary, of Rape, &c. In the second, of Actions, of Judges, of Actors, &c. In the third, of Exceptions dilatory and peremptory, that is, Pleas to the Writ and in Barr, &c. of Trials by Juries and by Battail, of Attaints, of Challenges, of Fines, &c. In the fourth, of Judgments, and therein of Jurisdiction, ofProces in criminal Causes, and in Actions real, personal and mixt. So as in this Mirror you may perfectly and truly discern the whole Body of the Common Laws of England. In Mr. Plowdens Commentaries, fol. 8a. in Fogasses Case, Bradshaw Attorny General citeth this Book by the Name of Mirror des Justices, le quel (saith he) fuit fait devant le Conquest. The meaning of Bradshaw was, not that the Book was made before the Conquest, but that the Text of Law which he titeth out of that Book was the Law of this Realm, before the Conquest.

But here, though summa sequar fastigia rerum,7 yet I will stay my foot and fix my staff a while, for this grave and learned Author will shew us in this Mirror the great Antiquity of the said Courts of the Common Law, and particularly of the high Court of Parliament ever since the time of King Arthur, who reigned about the year of our Lord 516. not that this Court and the rest were instituted then, but that the reach of his Treatise extendeth no higher than to write of the Laws and Usages of this Realm continued since the Reign of that King. He citeth (as you have heard) a Statute of King Alfred, as well concerning the holding of this Court of Parliament twice every year at the City of London, as to manifest the threefold end of this great and honorable Assembly of Estates. 1. That the Subject might be kept from offending, that is, that Offences might be prevented both by good and provident Laws and by the due Execution thereof. 2. That men might live safely in quiet: And 3. That all Men might receive Justice by certain Laws and holy Judgments, that is, to the end that Justice might be the better administred, that Questions and defects in Laws might be by this high Court of Parliament explained, reduced to certainty, and adjudged.

This Court, being the most supream Court of this Realm, is a part of the frame of the Common Laws, and in some Cases doth proceed legallyaccording to the ordinary course of the Common Law, as it appeareth in 39 Edw. 3. f. To be short, of this Court it is truly said, Si vetustatem spectes est antiquissima, si dignitatem est honoratissima, si Jurisdictionem est capacissima.8

And where Question hath been made whether this Court of Parliament continued during the Heptarchy, let the Records themselves make answer. King Ina began his Parliament thus, as hath been anciently translated into Latin (which Translation I have:) Ego Ina Dei gratia West Saxonum Rex, exhortatione & doctrina Cenredes patris mei, & Heddes Episcopi mei, & Erkenwaldes Episcopi mei, & omnium Aldremannorum meorum & seniorum Sapientum Regni mei, multaq; congregatione Servorum Dei sollicitus de saluteanimarum nostrarum & statu Regni mei, Constitui rectum conjugium, & justa judicia, pro stabilitate & confirmatione populi mei, benigna sedulitate celebrari: Et nullo Aldremanno vel alicui de toto regimine nostro conscripto liceat abolere judicia.9

The like Parliament was holden by Offa King of the Mercians, and by Etherbert King of Kent, and the rest of the seven Kings. After the Heptarchy, taking some few Presidents for many, King Edward, Son of the aforenamed King Alfred, before the Conquest the first, held a Parliament at Exeter, and called thither all his Wisemen: Edwardus Rex admonuit omnes Sapientes suos qui fuerint Exoniae ut investigarent simul & quaererent quomodo pax eorum melior esse possit quam ante fuit, &c.10 And it shall evidently appear hereafter, that this Conventus Sapientum11 included the Lords and Commons of the Parliament.

King Ethelstaen apud Grateleiane,12 where all the Noblemen and Wisemen of the Realm were gathered together; here was Conventus omnium Nobilium & Sapientum.13 In the Reign of the same King other of his Acts of Parliament are stiled and anciently translated thus. Haec sunt Judiciae Exoniae quae Sapientes consilio Ethelstani Regis instituerunt, & iterum apud Fresresham & tertia vice apud ubi haec difinita simul & confirmata sunt.14

King Edgar, sirnamed Pacification, at several places enacted many Laws by the Counsel of his Wisemen, here was Consilium Sapientum,15 whose Acts of Parliament, being antiently translated into Latin, were intuled thus, Haec sunt instituta quae Edgarus Rex consilio Sapientum suorum instituit, &c.16

King Etheldred at Woodstock; and there Laws ordained by him and his Wisemen: Hoc est Consilium quod Etheldredus Rex & omnes Sapientes sui condixerunt, ad emendationem pacis omnis populi, apud Woodstock:17 And another Parliament by him and his Wisemen, both Spiritual and Lay: Here was Consilium Spiritualium & Laicorum.18 And stiled another thus, Haec sunt verba pacis & prolocutionis quae Etheldredus Rex & omnes Sapientes ejus cum exercitu firmaverunt, qui cum Anulano, Justinio & Guemundo Stigrani filio venit.19 And held another Parliament at Habam: Haec instituerut20Etheldredus Rex & Sapientes ejus apud Habam.21

King Edmund at London, where he summoned both the Spiritualty and Temporalty, and called them by one general Name of Wisemen: Here was Conventus Sapientum Spiritualium & Temporalium.22 But it is best to hear the ancient Translator himself, Edmundus Rex congregavit magnam Synodum divini ordinis & seculi apud Londoniae Civitatem, in Sancto Paschae solenni, &c.23 And another of his Parliaments beginneth thus, Hae sunt institutiones quas Edmundus Rex & Episcopi sui cum sapientibus suis instituerunt apud Culincona, &c.24 And soon after, Ego Edmundus Rex mando & praecipio omni populo Seniorum & Juniorum qui in regione mea sunt, qui investigans investigavi cum sapientibus Clericis & Laicis.25

King Canutus at Winchester; by the King and the reverend Council of his Wisemen. There was Venerandum Concilium Sapientum.26 For so was that Parliament being of ancient time translated into Latin, called, but hear the Title itself: Haec sunt Statuta Canuti Regis Anglorum, Danorum, Norvegarum venerando Sapientum ejus consilio, ad laudem & gloriam Dei, & sui regalitatem, & commune commodum, habita in Sancto Natali Domini apud Wintoniam, &c.27

All which and many more are extant and publickly known, but I will add that which I read in the legier Book of the late Monastery of Saint Edmonds Bury, now in my hands, of an ancient handwriting, wherein is cited a Parliament holden in the fifth year of this King Canutus Reign; but I will keep silence, and let the Book it self speak. Rex Canutus anno Regni sui quinto, videlicet,28Per centum & triginta annos ante compilationem Decretorum quae anno Domini 1150. fuer’ compilat’, annoseptimoPontificatusPapae Eugenii tertii, & ante compilationem aliorum Canonum quorumcunq; cunctos Regni sui Praelatos, Proceresq; ac Magnates ad suum convocans Parliamentum in suo publico Parliamento persistentibus personaliter in eodem Wulstano & Adelnodo Archiepiscopis & Ailwino Episcopo Elmhamense, & aliis Episcopis ipsorum suffraganeis, septem Ducibus cum totidem Comitibus, necnon diversorum monasteriorum nonnullis Abbatibus, cum quamplurimis gregariis militibus, ac cum populi multitudine copiosa, ac omnibus adhuc in eodem Parliamento personaliter existentibus, votis Regiis unanimiter consentientibus praeceptum & decretum fuit, quod Monasterium Sancti Edmundi, &c. sit ab omni Jurisdictione Episcoporum Comitatus illius extunc imperpetuum funditus liberum & exemptum, &c. Illustris Rex Hardicanutus praedicti Regis Canuti filius, haeres & successor, ac sui patris vestigiorum devotus imitator, &c. cum laude & favore Aegelnod’ Dorobornensis, nunc Cantuariensis, & Alfrici Eborac’ Episcoporum, aliorumq; Episcoporum suffragan’, necnon cunctoruns Regni sui mundanorum principum descriptum constituit roboravitq; praeceptum.29 Which immunity I know that the said Monastery held until the dissolution thereof in the 31st year of the Reign of King Henry the eighth.

But let us proceed, and yet omit many, and touch only that which hath been controverted. It is said, that Silent leges inter arma,30 and that during all the time of the Conqueror no Parliament was lawfully assembled, &c. for Silent leges inter arma, and during all his Reign, either the Sword was not put up into the scabbard, or if it were, the Hand was always upon the hilt ready to draw it again. But that a Parliament was assembled and holden according to the common Laws of England, in William the Conquerors time, it isevident, for that an Act established at a Parliament holden in the Reign of W. the Conqueror was pleaded and adjudged to be firm and good and accordingly put in execution by the Judges of the Realm, which they neither would nor could have done, if it had been commanded by the powerful Will of the Conqueror, and not established by a Parliament duly assembled, according to the form and frame of the Common Law. And therefore as well for manifestation hereof; as for proof of that which hath been said, you shall read in the Book Case of 21 E. 3. f. 60a., 60b.31That the King sued a Writ of Attachment upon a Prohibition against the Bishop of Norwich, for that where the Abby of St. Edmonds Bury in the County of Suffolk was founded by the Progenitors of the King, and exempt from all Jurisdiction of the Ordinary, and that no Ordinary should visit there, and that none should go against the said ordinance and the foundation aforesaid: That upon controversie between Arfastus late Bishop of Norwich, and B. late Abbot of Bury, of the Exemptions aforesaid; in the time of William the Conqueror, at his Parliament on a certuin day holden, it was ordained by the King, the Archbishop of Canterbury, and all the other Bishops of the Land, the Earls, Barons, &c. That at what time the Bishop of Norwich, or any of his successors, should go against the points of the foundation, and exemptions aforesaid, that the Bishop for the time being should pay to the King or to his Heirs thirty Talents of Gold: And declared further, how the King sent a Prohibition to the Bishop, that he should not enter into the said Franchise, nor attempt any thing against the priviledge of the said Church of St. Edmund, and that notwithstanding the said Prohibition, the then Bishopof Norwich hadvisited the Abby aforesaid, and had summoned the Abbot to shew the Charters of their Foundation, wrongfully and in despight of our Sovereign Lord the King: whereunto the then Bishop pleaded not guilty, and he was found guilty by the Verdict of the Enquest. Whereupon it was adjudged, that the Temporalties of the Bishop should be seised into the Kings Hands. But it was advised and resolved by all the Judges, that in right of the Talents they could not give Judgment; for two causes: 1. For that the Prohibition was the original Suit, and that was determined by the Judgment in the Prohibition, that the Temporalties of the Bishop should be seised into the Kings Hands, which then was the proper Judgment in the Suit. 2. Concerning the Talents they were a penalty ordained by Parliament in that case, so that the Penalty had no dependency upon the Prohibition, which is the original Suit. But it was advised and resolved by the Judges, that the Bishop of Norwich had forfeited the said Penalty of the Talents to the King, and that they ought to grant a Scire facias32to the then Bishop for that purpose, which was granted accordingly, upon which Writ the Bishop appeared and pleaded, and thereupon Judgment was given, that the King should recover the said Talents, as by the said Book Case judicially adjudged appeareth.

Which Case if the Opponents had seen or known, they would have therewith rested satisfied. And this notable Judgment giveth credit to that ancient Treatise, intituled thus, (a)33Modus tenendi Parliamentum. Hic describitur modus quomodo Parliamentum Regis Angliae, & Anglicorum suorum tenebatur tempore Regis Ed. filii Regis Etheldredi, qui quidem modus fuit per discretiores Regni, coram Williel’ Duce Normaniae, & Conquestore & Rege Angliae, ipso Conquestore hoc praecipiente, & per ipsum approbat’ & suis temporibus & successoribus, suorum Regum Angl’ usitat’:34 Wherein the Assembly of the Kings, the Lords and Commons, according to the manner continued to this day, is set down, which I have in a fair and very ancient written hand, whereby it is manifest that Conventus Nobilium & Sapientum, &c.35 included both the Lords and the Commons of the Parliament.

It is evident36 that there were Tenants in ancient demesne before the Conquest, and for a certainty therein, and to know of what Manors such Tenants did hold, it appears by the Book of Domesday, that all the Tenants that did hold any of those Manors that were in the hands of King Ed. the Son of King Etheldred, or of King W. the Conqueror, were Tenants in ancient demesne. And these Tenants then had and yet have these priviledges amongst others, for that they were bound by their tenure to plow and husband, &c. the Kings demesns before and in the Conquerors time, therefore they were not to be returned Burgesses to serve in Parliament, to the end they might intend the Kings Husbandry the better. 2. They were not to be contributory to the Fees of the Knights of Shires that served in Parliament; which Priviledges (though the cause ceaseth) continueth to this day; therefore there were Parliaments unto which the Knights and Burgesses were summoned both before and in the Reign of the Conqueror. For your satisfaction herein, see F.N.B. 14.e. 49 Edw.3.22.b.2.3.a. 40 Edw.3.25. 11Hen.4.2. &c. Also the ancient Towns called Boroughs are the most ancient Towns within England, for those Towns which now are Cities and Counties, in ancient time were Burghs, and called Burghs, for out of those ancient Towns called Burghs came the Burgesses to the Parliament, which are the very words of Littleton lib. 2. c. 10. Vide 40 Ass. p. 27. 11 Hen.4.2. 22 Edw.4.11. &c. So as it appeareth that the ancient Burghs are the most ancient Towns of England, and consequently long time before the Conquest; and I have found many of them since the Conquest incorporated into Cities, and distinguished into Counties since the Conquest, but had been ancient Burghs (from whence came the Burgesses to the Parliament) time out of mind before the Conquest: Nay divers of the most ancient Burghs, that yet send Burgesses to the Parliament, flourished before the Conquest, and have been of little or no account to have any such privileges newly granted to them at any time since. And I could yet never find when any of them, or any other the ancientest Burghs, were of ancient time since the Conquest endowed with that privilege.

King Henry the first Anno Domini 110037cum suorum consilio decrevit ut monetagium commune quod capiebatur per Civitates vel Comitatus quod non fuer’ tempore Edwardi Regis, hoc ne amodo fiet. Item quod Ecclesius non venderet nec ad forman daret, mortuo Episcopu vel Abbate.38 And this King assembled another Parliament39 on Candlemas Day at London Anno Domini 1123.

King Henry the Second in the year of our Lord God 1185. (as testifieth Mathew Paris) Convocavit Clerum Regni & populum cum omni Nobilitate ad fontem Clericorum.40

King John held a Parliament in the sixth year of his Reign, as it appeareth by his Writs of the Chancery in these words: Rex Vicecomiti, &c. Sciatis quod consensum est cum assensu Archiepiscorum, Comitum, Baronum & omnium fidelium nostrorum Angliae, quod novem Milites per totam Angliam invenient decimum Militem bene paratum equis & armis ad defensionem Regni nostri, &c.41 But to proceed any further were but to gild Gold, or to add a little Drop to the great Ocean.

Concerning the name of the Parliament two things fall into consideration, 1. What the Word signifieth. 2. When this supream Court was christened by the name of Parliament: Touching the first, it is so called for two causes, 1. Because that every Member of that high Court hath judicial place, and for that every Man there should without any Spirit, either of contradiction or smoothing, Parler la ment,42 speak judicially his mind, it is called Parliament.43 2. The Laws there made are called Acts of Parliament, because they are to be expounded, being part of the Laws of the Realm, by the Judges of the Law, according to the mind and true meaning of the speakers that were the makers of these Acts; as Testamentum44 is to be expounded secundum mentem Testatoris,45 and Arbitramentum secundum mentem Arbitatoris.46 As to the 2d,47 the Saxons called this Court micel gemott,48 the great Assembly, wittenagemott,49 the Assembly of Wise Men, the Latin Authors of those times calledit Commune Concilium, magna Curia, generalis Conventus, &c.50 And let it be granted, that W. the Conqueror changed the name of this Court, and first called it by the name of a Parliament, yet manifest it is by that which hath been said, that he changed not the frame or jurisdiction of this Court in any point. And the very Names in substance that were attributed to this Court before the Conquest, are continued after the Conquest to this day. For in the Mirror of Justices, as appeareth before, it is called Concilium generale, Fleta lib.2.c.2. Habet etiam Rex Curiam Suam in Concilio Suo in Parliamentis Suis, praesentibus Praelatis, Comitibus, Baronibus, Procerib’, & aliis viris peritis.51 8 R.2. Avowry 260. and in many other Books it is called Rex & Concilium: In the Original Regist.f.280. it is called Magnum Concilium. In Dorso claus.16 E.2. M. 5. Henricus de bello monte Baro de magno & Secreto Concilio Regis:52 and Rot. Parliam’ an. 3E.4. parte prima M. 2. it is called Magnum Concilium. Bracton lib. 1. c. 2. termeth it Magna Curia. Anno 17 E. 2. de Templariis, Super quo convocatis Majoribus de Concilio Domini Regis tam Justiciariis quam Laicis personis in Parliamentum, concordatum est in Parliamento, &c.53 And in many Statutes in the Reigns of Henry the third Edward the first and succeeding Kings, it is called Commune Concilium, and Commune Concilium Regis, and Commune Concilium Regni,54 and so runneth the Writ of Wast,55 and many other original and judicial Writs. But if any be desirous to see more of this King, let him look into the eighth part of my Reports in the Princes Case. So as I conclude, that the nature and name of the Court, in use before the Conquest, continueth to this day. And where some do suppose, that in the Parliament holden at Westminster, in the third year of the Reign of King Edward the first called Westm’ the 1. this Word Parliament first crept in, where it is called the first general Parliament by the assent of the Archbishops, Bishops, Abbots, Priors, Earls, Barons and all the Comminalty of the Land summoned to the same, &c. It is manifest that the name was long before that time, as well by that which hath already been said, as for that in the 9th year of Edward 2. Son and immediate Successor to King Edward 1. at a Parliament then holden, it is said thus, Sciatis quod iam dudum temporibus progenitorum nostrorum quondam Regum Angliae in diversis Parliamentis suis, &c.56 which could not have truly been said if the Name had first begun in the Reign of his Father.57 ,58 This is not that Court that in France bear the Name of Parliaments, for they are but ordinary Courts of Justice which (if you believe Paulus Jovins) were by us first setled there: But this is that which both England and Scotland agree in naming of it a Parliament, which the French doth term Assemblee des Estats, or les Estats, and the German a Dyet.59

Fleta ubi Supra a saith of this Court, Ubi terminatae sunt dubitationes judiciorum, & novis injuriis emersis nova constituuntar remedia, & unisuique justicia prout meruerit retribuetur ibidem.60

In Master Plowdens Commentaries 388.61Le Parliament est Court de tresgrand honour & justice, de que nul doit imaginit chose dishonourable.62 I will pretermit Fortescue sometime Chief Justice of England, in his Treatise De Laudibus Legum Angliae,63 and many others, and will conclude this Point with him that is the chief Antiquary of his time, because he concludeth the sum of all aptly, distinctly and eloquenly,64sol. 128. b. Quod ad Angliae Tribunalia, Curias, five Juris fora attinet, in triplici sunt apud nos differentia, alia enim sunt Ecclesiastica, alia temporalia, & unum mixtum, quod maximum, & longe amplissimum, non ita vetusto nomine e Gallia mutuato Parliamentum dicitur. Majores nostri Anglo-Saxones Wittena gemott, i. Prudentum Conventus, & Geredniss, i. Concilium, & Micel synod (a Graeca dictione, synodus) i. Magnus Conventus, Latini ejus & Subsequentis aevi Scriptores, Commune Concilium, Curiam altissimam, generale placitum, Curiam magnam, Magnatum Conventum, praesentiam Regis, Praelatorum, Procerumque collectorum, commune totius Regni Concilium, &c. vocarunt. Utque universum AEtoliae Concilium Panetolium Livio nominatur, ita Pananglium, recte dici possit. Ex Rege enim, Clero, Nobilibus, Majoribus, Equitibus & Burgensibus electis; sive ut significantius dicam stylo forensi, ex Rege, Dominis spiritualibus, & temporalibus, atque ex Communitate constat, qui universae Angliae corpus repraesentant. Statis autem temporibus non habetur, sed a Rege pro arbitrio indicitur, quoties de rebus arduis & urgentibus, ne quid detrimenti Respublica capiat, consultandum, ejusdemq; soliusarbitriodissolvitur.Summam autem & sacrosanctam authoritatem habet in legibus ferendis, confirmandis, antiquandis, interpretandis, proscriptis in integrum restituendis, litibus inter privatos difficilioribus decidendis, & ut semel dicam, in omnibus quae ad reipublicae salutem, vel etiam privatum quemcunq; spectare possint.65

In this ancient Mirror you may also clearly discern as far as the Reign of the often named King Arthur, the great Antiquity of the Officers and Ministers of the Common Law, and of their inferior Courts, as for example, of the Offices of the Keepers or Senators of the Shires or Counties, Custodes seu Praepositi Comitatus,66 of later times called Shireves (who saith this Author fueront ordeines per veiels Roys quant les Countees demisterent des gards67 ) and of his Tourns and County Courts: Which Officers and division of Shires continued (as you may read amongst the Laws of those seven Kings) though with much incroachment, during the Heptarchy, as taking one or two Examples for many: Amongst the Laws of King Ina it is provided in these Words, Gif hwa hun righter bidde beforan scirman oth the othrun deman,68 the ancient Translation thus, Si quis rectum sibi roget coram aliquo Scirman (i. Praeposito comitatus) vel alio Judice & habere non possit, & accusatus vadium recti dare nolit, emendet 30 s. & infra septem noctes faciat ei recti dignum.69

And in another place, Gif he Eldorman hy, tholige his scire, Qui furem ceperit, vel captum reddiderit, vel ipsum dimiserit, vel furtum celaverit, reddat ipsum furem secundum weram suam, si Eorldermannus, i. Praepositus Comitatus sit, perdat Comitatum suum nisi Rex parcere velit ei.70 If the Shireve do it he shall lose the Custody of his Shire or County: And afterwards, Si quis discedat a domino suo sine licentia, vel in alium Comitatum se furetur, & deinceps inveniatur, redeat illuc ubi antea fuit, & emendet domino suo lx s. &c.71

And albeit the Saxons gave this Officer the vulgar Name used to this day, yet it is manifest that the Office was of ancient time before they set any foot in England.72 This word Shireve is derived of two Saxon words, viz. of Scyre, that is, the Shire or County, and Reve, that is, Custos, or Praepositus Comitatus,73 the Keeper or Gardein of the Shire; and sometime (as you see) they were called Shire-man or Elderman of the Shire. And to this day his Patent is, Commisimus vobis Custodiam Comitatus.74 ,75 So I agree well with them which affirm that King Alfred divided England into Shires or Counties, in that he made the most certain division of them; for where, during the time of the Heptarchy, there were many Incroachments one upon another, and many ancient bounds obscured, all that he reformed by his exact partition. But they must also agree with me, that long before the Birth of King Alfred this Kingdom had been divided into Shires or Counties. But hereof, at this time, this little shall suffice.

I have in my custody an ancient Record intitled Kanc’ de placito apud Pinendenam inter Lanfrancum Archiepiscopum Cant’, & Odonem Baiocensem Episcopum tempore magni Regis Willielmi qui Anglicum Regnum armis conquisivit:76 The effect whereof is, That Lanfrank Archbishopof Canterbury brought a Writ of right Patent against the said Odo of the Manors of Raculfe, Sandwic’, Rateburg’, Widetun, Saltwode, cum Burgo Heth ad Saltwode pertinente, Langport, Huoenden, Rokinge, Broche, Detling, Prestitune, Sunderhurst, Earheth, Orpintune, Einsford, &c., una cum libertatibus & pertinentiis de soca, saca, Toll, Team, Flymena, Firmith, Grithbreach, Storsteale, Haunfare, Infangentheof, cum omnibus aliis consuetudinibus paribus istis, vel minoribus istis, in terris & in aquis, in sylvis, in viis, & in pratis, & in omnibus aliis rebus infra Civitatem, & extra, & in omnibus aliis locis:77 Which Writ was removed into the County Court by a Writ called a Tolt: and the Record saith, Quod praecepit Rex Comitatum totum absque mora considere, & omnes Francigenas, & praecipue Anglos in antiquis legibus & consuetudinibus peritos in unum convenire: qui cum convenerint apud Pinendenam pariter considerunt, &c. Huic placito interfuerunt Ernestus Episcopus de Rovec’, Agelricus Episcopus de Cicestr’, vir antiquissimus, & legum terrae sapientissimus, qui ex praecepto Regis advectus fuit, ad ipsas antiquas legum consuetudines discutiendas & edocendas, in una quadriga, Richardus de Tunebreg, Hugo de Monteforti, Willielmus de Acres, Haymo Vicecomes, & alii multi, &c. Barones Regis & ipsius Archiepiscopi, atque illorum Episcoporum homines multi, &c. cum toto isto Comitatu multae & magnae authoritatis viri, &c. Et ab omnibus illis probis & sapientibus hominibus qui affuerunt fuit ita diraciocinatum & etiam a toto Comitatu recordatum atque judicatum, quod sicut ipse Rex tenet suas terras liberas & quietas in suo dominico, ita Archiepiscopus teneat suae terras praedictas omnino liberas & quietas in dominico, &c.78 And let not this ancient Judgment in a Writ of Right seem strange: for since that time, and to this day the Judgment for the Tenant in a Writ of Right is, Quod teneat terram illam, &c. quietam, or, in pace, &c.79 And under this Record it is thus testified. Hujus placiti multis testibus multisque rationibus determinatum finem postquam Rex audivit, laudavit, laudansque cum consensu omnium Principum cipum suorum confirmavit & ut incorruptus perseveraret firmiter praecepit.80 And the cause of this Controversie is there also expressed in these words. Tempore magni Regis Willielmi qui Anglicum Regnum armis conquisivit,&suisditionibus subjugavit, contigit Odonem Bajocensem Episcopum & ejusdem Regis fratrem multo citius quam Lanfrancum Archiepiscopum in Angliam venire atquein Comitatu de Chent cum magna potentia residere, ibique potestatem non modicam exercere. Ac quia illis diebus in Comitatu illo quisquam non erat qui tantae fortitudinis viro resistere posset propter magnam quam habuit potestatem, terras complures de Archiepiscopatu Cantuar’ & consuetudines nonnullas sibi arripuit, atque usurpans suae dominationi. Postea vero non multo tempore contigit praefatum Lanfrancum Cadomensis Ecclesiae Abbatem jussu Regis in Angliam quoque venire, atque in Episcopatum Cantuar’, Deo disponente, totius Angliae primatum sublimatum esse, ubi dum aliquandiu resideret, & antiquas Ecclesiae suae terras multas sibi deesse inveniret & suorum negligentia antecessorum illas distributas atque distractas fuisse reperisset, diligenter inquisita & bene cognita veritate, Regem quam citius potuit & non pigre inde requisivit, ut Justicia secundum legem sibi fieret, &c.81 And thus much by way of Addition to my former Preface shall suffice.

I have in this ninth Work reported certain Cases which have been adjudged and resolved, together with the Reasons and Causes thereof, to the end the Learned that know the Law may be confirmed, such as know it not may be instructed, the Possessions and Interests of all in general according to Right strengthened and quieted, Love and Charity between Man and Man continued, unnecessary Suits, the Causes of Contention and Expence, prevented, and the Reign of our dread Sovereign, for his Zeal of Justice, renowed and honoured.

And it is very observable out of what root the Doubts and Questions herein adjudged and resolved did grow: The most difficult whereof do spring out of these two Roots, either out of Statutes enacted in that supream Court of Parliament (whereof I have spoken) or out of supposed variety of Opinions and Rules in our Books. Out of Acts of Parliament principally in two sorts, either when an ancient Pillar of the Common Law is taken out of it, or when new remedies are added to it. By the first arise dangers and difficulties, and by the second the Common Law rightly understood is not bettered, but in many Causes so fettered, that it is thereby very much weakned. Take one Example for both; In 5 Edwardi 3. 14.82 Sir Will. Herle Chief Justice of the Court of Common Pleas, saith, That the Statute De Donis Conditionalibus83 was made in the Reign of King Edward the first, (who (saith he) was the most sage King that ever was) and the Cause of the Statute was to salve the Heritage in the Blood of them to whom the Gift was made; and yet that Statute shaking a main Pillar of the Law, that made all Estates of Inheritance Fee simple, no Wisdom could foresee such and so many mischiefs as upon those fettered Inheritances followed; but hereof have I given a touch in the Prefaces to my third and fourth Work; and therefore desiring that this kind of innovation might be left, I will for this time leave it. Concerning the supposed variety of Opinions and Rules in our Books, I trust in many Cases herein the studious Reader shall observe (as in my former Works he hath done) that the Law truly distinguishing84 (for ubi Lex non distinguit nec nos distinguere debemus)85 they be in these Cases well and justly accorded. And I affirm it constantly, That the Law is not incertain in Abstracto but in Concreto, and that the incertainty thereof is hominis vitium86 and not professionis:87 And to speak plainly there be two Causes of the uncertainty thereof in Concreto, viz. praepostera lectio and praepropera praxis,88 preposterous reading, and oversoon practise.

A substantial and a compendious Report of a Case rightly adjudged doth produce three notable effects: 1. It openeth the Understanding of the Reader and Hearer; 2. It breaketh through difficulties, and 3dly, It bringeth home to the hand of the studious, variety of pleasure and profit; I say it doth set open the Windows of the Law to let in that gladsom Light whereby the right reason of the Rule (the Beauty of the Law) may be clearly discerned; it breaketh the thick and hard Shell, whereby with pleasure and ease the sweetness of the kernel may be sensibly tasted, and adorneth with variety of Fruits bothpleasant and profitable, the Storehouses of those by whom they were never planted nor warred. Whereunto (in those Cases that be tortuosi89 and of great difficulty, adjudged upon Demurrer or resolved in open Court) no one Man alone with all his true and uttermost labours, nor all the actors in themselves bythemselves out of a Court of Justice, nor in Court without solemn Argument, where (I am persuaded) Almighty God openeth and inlargeth the understanding of the desirous of Justice and Right could ever have attained unto. For it is one amongst others of the great honours of the Common Laws, that Cases of great difficulty are never adjudged or resolved in tenebris or sub silentio suppressis rationibus;90 but in open Court, and there upon solemn and elaborate Arguments, first at the Bar by the Counsel learned of either party (and if the Case depend in the Court of Common Pleas then by Serjeants at Law only) and after at the Bench by the Judges, where they argue (the puisne Judge beginning and so ascending) seriatim,91 upon certain days openly and purposely prefixed, declaring at large the authorities, reasons and causes of their Judgments and Resolutions in every such particular Case (habet enim nescio qd’ energiae viva vox:92 ) a reverent and honourable proceeding in Law, a grateful satisfaction to the Parties, and great instruction and direction to the attentive and studious Hearers.

In this, as in the rest of my Works, my chief care and labour hath been for the advancement of truth that the Matter might be justly and faithfullyrelated, and (for avoiding of Obscurity and Novelty) that it might be in a legal and Method and in the Lawyers Dialect plainly delivered, that herein no Authority cited might be wittingly omitted, or coldly applied; no Reason or Argument made on either side willingly impaired; no Mans Reputation directly or indirectly impeached; no Author or Authority cited unreverently disgraced; and that such only as (in mine Opinion) should hereafter be leading Cases for the publick quiet might be imprinted and published. Almighty God (who hath of his great Goodness enabled me hereunto) knoweth that I have not taken these Labours, either for vain Glory or upon presumption of any persuasion of Knowledge: but true it is, that I have been ever desirous to know much; and do acknowledge my self to owe much more to my Profession than all my true and faithful Labours can satisfie: And as I truly confess, that I have no means (for I know my own wants) to quit that Debt, so I faithfully promise never to be found unthankful or unwilling to perform what by my uttermost endeavour shall lie in my power. My desire of the learned Reader, with old Bracton (sometime a famous Judge of the Court of Common Pleas (as I find in Record) and a Writer of the Laws) is, Ut si quid superfluum vel perperam positum in hoc opere invenerit, illud corrigat & emendet, vel conniventibus oculis pertranseat, cum omnia habere in memoria & nulla peccare, divinum sit potius quam humanum.93

Vale.94

William Aldred’s Case.

(1610) Michaelmas Term, 8 James I

In the Court of King’s Bench.

First Published in the Reports, volume 9, page 57b.*

Ed.: William Aldred owned the house of Hareleston in Norfolk. Next to the hall and parlor of Aldred’s house, Thomas Benton owned a small orchard, chard, which he (according to Aldred) maliciously converted to a hog sty in order to vex Aldred. Aldred sued, claiming that the foetid and unpleasant odors of the sty interrupted his enjoyment of his land and was a nuisance. The King’s Bench found the swine sty to be a nuisance. Aldred won. The case is particularly important for establishing liability for environmental nuisances, and is an early case in environmental law.

William Aldred brought an action upon the Case against Thomas Benton, which began Trinity 7 Jacobi, Rot. 2802. That where the Plaintiff, 29 Septemb. 6 Jac. was seised of a house, and of a parcel of land in length 31 feet, and in breadth 2 feet and a half, next to the Hall and Parlour of the Plaintiff, of his house aforesaid in Harleston in the County of Norfolk in fee; and where the Defendant was possessed of a small Orchard on the East part of the said parcel of Land, praed’ Thomas malitiose machinans et intendens ipsum Willhielmum de easuamento et proficuo messuag’ et parcell’ terrae suorum praed’ impedire et deprivare, the said 29 day of Septemb., Anno 6 Jacobi quoddam magnum lignile in dicto horto ipsius Thomae construxit et erexit, ac illud adeo exaltavit, &c. quod per ligne illud, &c. tam omnia fenestr. et luminaria ipsius Willihelmi aulae et camerarum suarum, quam ostium ipsius Williehelmi aulae suae praedict. penitus obstupat’ fuer., &c. et praed. Thomas ulterius machinans et malitiose intendens ipsum Willihelmum multipliciter praegravare, et ipsum de toto commodo, easimento et proficuo totius messuagii sui praed. penitus deprivare, praed. 29 die Sept. an. 6, supradicto quodd’ aedificium pro suibus et porcis suis in horto suo praed’ tam prope aulam et conclave ipsius Willihelmi praed. erexit, ac sues et porcos suos in aedificio in horto illo posuit, et ill’ ibidem per magnum tempus custodivit, ita quod per |[58 a] foetidas et insalubres odores sordidorum praedictorum suum et porcorum praedict’ Thomae in aulam et conclavo praed. ac alias partes praed. Messuagii ipsius Willihelmi penetran’ et influnent’ iidem Willihelmus et famili sui, ac aliae personae in messuagio suo praed. conversantes et existen. absque periculo infectionis in aula et conclavi proed’ ac aliis locis messuagi praedicti’ continuare seu remanere non potuerunt: praetextu cujus idem Willihelmus totum commodum, usum, easamentum, et proficuum maximae partis messuagii sui praedicti per totum tempus praed’ totaliter perdidit et amisit ad damnum ipsius Willihelmi 40. &c.1 And the Defendant pleaded Not guilty, and at the Assises in Norfolk he was found guilty of both the said Nusances, and damages assessed. And now it was moved in arrest of Judgment, That the building of the said house for hoggs was necessary for the sustenance of man; and one ought not to be of so delicate nosed, that he cannot endure the sent of hoggs; for Lex non favet delicatorum votis:2 But it was Resolved, That the action for the same (as this case is) was well maintainable; for in a house four things are desired, habitatio hominis, delectatio inhabitantis, necessitas luminis, et salubritas aeris,3 and for Nusance done to three of them an action lieth, scil. to the habitation of the house, for that is the principal end of a house. 2. For hindrance of his light, for the old form of action upon the Case was significant, scil. quod Messuagium horrida tenebritate obscuratum fuit,4 therewith agree 7 Edw. 3 50b. 22 Hen. 6 14. by Markham, 11 Hen. 4 47. and to was a Case adjudged in the King’s Bench, Trin. 29 El. Thomas Bland brought an action upon the Case against Thomas Moseley, and declared how that James Bland was seised in fee of an ancient house in Netherousegate in the Parish of St. Michael in the County of the City of York; and that the said James, and all those whose estate he hath in the said house, time out of mind, &c. had and have used to have for them his Tenants, for life, years, and at will, in the West side of the said house seven windows or cleristeries against a piece of land containing half a Rood, in the parish aforesaid, adjoining to the said house, which piece of land time out of mind was without any building, until the 28th day of September, Anno 28 El., and shewed the length and breadth of the said windows for all the time aforesaid, by force of which windows the said James, and all those whose estate he hath in the said house time out of mind have used to have for them and their Tenants divers wholesome and necessary easements and commodities, by reason of open Air and light, &c. And that the said James the 20th of September Anno. 28 Eliz. demised to the Plaintiff the said house for 3 years; and that the Defendant, maliciously intending |[58 b] to deprive him of the said easements, et obscurare Messuagium praed. horrida tenebritate, &c.5 20 November Anno. 29 Eliz. had erected a new building upon the said piece of land, so near to the said seven windows, that the said seven windows were stopped, whereby the Plaintif lost his said easements, &c. Et maxima pars messuagii praedict’ horrida tenebritate obscurata fuit, &c.6 In bar of which action the Defendant pleaded, quod infra praed. civitatem Ebor. talis habetur; et a toto tempore cujus contrarii memoria non existit, habebatur consuetudo, videlicet, quod si quis habuerit fenestras et visum per easdem versus terram vicini sui, vicinus ille visum illarum fenestrarum obstruere super terram illam solebat et posset, sicut melius viderit sibi expedire.7 By force of which custom he justified the stopping of the said Windows; and upon that the Plaintiff did demur in Law, and it was adjudged by Sir Christopher Wray, Chief Justice, and the whole Court of Kings Bench, that the barr was insufficient in Law to barr the Plaintiff of his action, for two causes. 1. When a man hath a lawful easement, or profit, by prescription time out of mind, &c. another Custom which is also time out of mind cannot take it away, for the one is as ancient as the other: As if one hath a way over the land of A. to his Freehold time out of mind by prescription &c. A. cannot allege a prescription or custom to stop the said way, 2. It might be, that before time of memory the owner of the said piece of land hath granted to the owner of the said house to have the said windows, without any stopping of them, and so the prescription might have a lawful beginning: and Wray, Chief Justice, then said, that for stopping as well of Air as of Light, an action lieth and damages shall be recovered for them, for both are necessary, for it is said, et vescitur aura aetherea;8 and the said words horrida tenebritate are significant, and imply the benefit of light. But he said, That for prospect, which is a matter only of delight, and not of necessity, no action lieth for stopping thereof; and yet it is the great commendation of a house if it have a long and large prospect, unde dicitur,

Laudaturque domus longos qui prospicit agros.9

But he doth not give actions for such things of delight. And Solomon saith, Ecclesiast. 11. 7. Dulce lumen est et delectabile oculis videre solem.10Et olium (ut Plutarchus in Conv. 7. Sap. refert.) Rex Aethiopum interrogatus quid optimum? respondebat lucem; quis enim natura duce tenebras non exhorrescit?11 and if the stopping of the wholesome Air, give cause of Action, a fortiori12 an Action upon the case lieth in the Case at Barr, for the infecting and corrupting of the Air. And the building of a |[59 a] Lime-kill is good and profitable, but if it be built so near a house, that when it burneth the smoke thereof entereth into the house, so that none can dwell there, an action lieth for it. So that if a man have a watercourse running in a ditch from the River to his house, for his necessary use, If a Glover set up a Lime-pit for Calves skins, and Sheep skins, so near the said Watercourse, that the corruption of the Lime-pit hath corrupted it, for which cause his Tenants leave the said house, an action upon the case lieth for the same, as it is adjudged in 13 Hen. 7 26b. and the same stands both with the Rule of Law and Reason, sc. Prohibetur ne quis faciat in suo quod nocere possit alieno: et sic utere tuo ut alienum non laedas.13 See in the Book of Entries tit. Nusance 406 b. That he who hath a several piscarie in a water shall have an action upon the Case against him who erecteth a Dyehouse, ac fimos faeditates, et alia sordida extra domum praed. decurrentia in piscariam praed’ decurrere fecit, per quod idem proficuum piscariae suae praed. totaliter amisit, &c.14 And there is another Precedent against a Dyer, &c. quod idem Henricus in mansione sua praed. ob metum infectionis per horridum faetorem fumi, foeditatis, et aliorum sordidorum, &c. per magnum tempus morari non audebat.15 So in the Case at Bar, forasmuch as the Declaration is, That the Defendant maliciously intending to deprive the Plaintif of the use and profit of his house, did erect a Swine stie tam prope aulam et conclave ipsius Willielmi, ac sues et porcos suos in aedificio illo posuit, et ill’ ibid’ per magnum tempus custodivit, ita quod faetidi et insalubres odores sordidorum praed’ suum et porcorum praed’ Thomae in aulam, &c. penetran’ et influen’, idem Willielmus ac famuli sui, &c. in messuag’ praedict’ conversantes existen’ absque periculo infectionis in aula, &c. continuare seu remanere non potuerunt, praetextu cujus idem Will’ totum commodum, &c. maximae partis praed’ messuag’ per totum tempus praed’ totaliter perdidit.16 To which Declaration the Defendant pleaded Not guilty, and was found guilty of the matter in the Declaration, It was adjudged that the Plaintif should recover.

John Lamb’s Case.

(1610) Michaelmas Term, 8 James I

In the Court of Star Chamber.

First Published in the Reports, volume 9, page 59b.

Ed.: This note case describes requirements for liability for a libel.

John Lamb, Proctor of the Ecclesiastical Court exhibited a Bill in the Star-chamber against William Marche, Robert Harrison, and many others of the Town of Northampton, and against Shuchburghe and others, for publishing of two libels. It was Resolved, That every one who shall be convicted in the said Case, either ought to be a contriver of the libel, or a procurer of the contriving of it, or a malicious publisher of it, knowing it to be a Libel, for if any readeth a Libel, the same is not any publishing of it, or if he hear it read, it is no publication of it, for before he read or hear it, he cannot know it to be a Libel, or if he hear, read it, and laugh at it, it is no publishing of it; but if after he hath read or heard it, he repeats the same, or any part of it in the hearing of others, or after that he knoweth it to be a libel, he readeth it to others, the same is an unlawful publishing of it; or if he writes a Copy of it, and do not publish it to others, it is no publication of the Libel; for every one who shall be convicted ought to be a contriver, procurer, or publisher of it, knowing it to be a Libel. But it is great evidence that he published it, when he, knowing it to be a Libel, writeth a Copy of it; if not that afterwards he can prove that he delivered the same to a Magistrate to examine it; for then the subsequent Act doth explain the precedent intent. See Reader, Bract. lib. 3. tract. de |[60 a] Corona, cap.36. fo. 155. Fiat autem injuria. cum quis pugno percussus fuerit, verberatus, vulneratus seu fustibus caesus; verum etiam cum ei convitium dictum fuerit; vel de eo factum carmen famosum.1

MacKalley’s Case. (In the killing of the Sergeant of London.)

(1611) Easter Term, 9 James I

Before all the Judges of England.

First Published in the Reports, volume 9, page 65b.

Ed.: A jury found the following: Richard Fells, a sergeant of the sheriff of London, had been ordered to arrest John Murray for a £500 debt. After arresting Murray one night, Fells was set upon by John Mackalley, John Engles, and Archibald Miller, who tried to rescue Murray. In the fight, Murray called to his friends, “Draw, draw, rogues.” MacKalley drew a rapier and ran Fells through, killing him. The jury, however, was unsure that this amounted to murder. The justices in the trial were unsure whether the facts amounted to murder or manslaughter. All of the judges of England considered the case and found that the killing of an officer of the law executing process is murder. Mackalley was convicted of murder and hanged. This is an important depiction in its consideration of the requirements of indictments, of arrest, and of the role of the jury as the finder of facts, even allowing them to leave to the judges the inferences to be derived from findings of fact. See also Semayne’s Case, p. 135.

By command from the King all the Judges of England were command to meet together to Resolve what the Law was upon a Record (of a special verdict found at the Sessions of Gaol delivery holden at Newgate the fifth day of December, Anno 8 Jacobi) and accordingly all the Judges of England, and Barons of the Exchequer, in the beginning of Hilary Term last past met together, and heard Counsel learned upon the same special verdict, as well of the prisoners, of the King; that is to say, Sergeant Harris the younger;Anthonie Dyet, and Randall Crewe of Counsel with the Prisoners; and Yelverton, Walters, and Coventrie for the King. And the matter was very well argued by Councel on both sides at two several days in the same term; and divers Exceptions were taken to the Indictment, and to the verdict also.

First, against the Indictment five exceptions were taken. 1. Because it appeareth, That the arrest was tortious, and by consequence the killing of the Sergeant could not be murder, but Manslaughter: And they argued that the arrest alledged in the Indictment was tortious, because it was in the night, that is to say, 18 diem Nov. inter horas quintam et sextam post meridiem,1 which appeareth to the Court to be in the Night, and the Night is a time of rest and repose, and not to arrest any one by his body, for thereof would ensue (as in hoc causa accidit)2 bloodshed; for the Officer and Minister of Justice cannot have such assistance, nor the peace cannot be so well kept in the Night, that is to say, in tenebris,3 as in the Day, in aperta luce:4 And the Prisoner cannot know the Officer or Minister of Justice in the Night; nor the Prisoner cannot so soon find sureties for his appearance |[66 a] in the Night, and thereby avoid his imprisonment, as he may in the day time. And they cited 11 H. 7. 5. That the Lord shall not distrain for his Rent or Services in the Night. But it was answered by the Councel with the King, and in the end Resolved by all the Judges and Barons of the Exchequer, That the arrest in the Night is lawful, as well at the subjects sute as at the Kings sute; for the Officer or Minister of Justice ought for to arrest him when he can find him; for otherwise perhaps he shall never arrest him, quia qui male agit, odit lucem;5 and if the Officer do not arrest him when he findeth him, and may arrest him, thePlaintif shall have an action upon his Case, and recover all his loss and damages; And it is like to the Case of distress for damage feasant, for which one may distrain in the Night; for otherwise perhaps he shall never distrain the cattel, for they may be taken or escape away and then he cannot distrain them: But in the Case of Rent service it is otherwise; for the Law doth intend that the Tenant will all the day attend upon the Land to pay his Rent, but he is not compellable to attend in the Night, Vid. 11 H. 7 5a. 10 E. 3 21 12 E. 3. Distresse 17. and no inconvenience will follow upon it; For although he cannot see the Officer, yet when he heareth him say, I arrest you in the Kings name &c. he ought for to obey him; and if the Officer hath not a lawful warrant, he shall have his action of false imprisonment. And as to the finding of sureties the Law is, That he ought to remain in prison till he finds sureties, be it in the Day time, or in the Night. But great inconvenience will follow on the other side, if those who are indebted to others shall in the Night go at their pleasure without danger of arrest, for then they would become Nightwalkers, and turn the Day into Night in despight of their Creditors. And as the Officer or Minister of Justice may by force of a Warrant directed to him, arrest anyone at the Kings sute either for felony or other crime in the Night, so may he do at a subjects suit; for the King hath no more prerogative as to the time to make an arrest, than a subject: for the arrest is to no other but to the intent to bring the party to Justice. And it appears by the opinion of the Court in the Kings Bench in Semaigns Case, in the Fifth Part of my Reports, That the Sherifs may arrest in the Night, as well at the sute of the Subject, as at the Kings sute. And in Heydons Case in the Fourth Part of my Reports it is Resolved, That if one killeth a Watchman in doing his Office, it is Murder, and yet it is done in the Night; and if an affray be made in the Night, and the Constable, or any other, who commeth to aid him to keep the peace be killed, the same is Murder; for when the Constable doth command them in the Kings name to keep |[66 b] the Peace, although he cannot discern or know him to be the Constable, yet at their perils they ought to obey him.

It was also Resolved, that although in truth between five and six of the clock in the ninth of November be part of the Night, yet the Court is not bound ex Officio,6 to take knowledge ofit, nomore than in the Case of Burglary, without these words, in nocte ejusdem diei,7 or Noctanter.8

2. It was objected, that Sunday is not dies juridicus,9 and therefore no arrest can be made thereon, but the same is the Sabbath, and therefore therein every one ought to abstain from secular affairs for the better worship and service of God in Spirit and Truth. As to that it was Answered and Resolved, that no judicial act ought to be done on that day, but ministerial acts may be lawfully executed on the Sunday; for otherwise peradventure they shall never be executed; and God permitteth things of necessity to be done that day; and Christ saith in the Gospel, Bonum est benefacere in Sabbatho.10

3. Another Exception was taken, because it is said in the beginning of the Indictment, in Curia dicti Dom. Reg in computatorio suo, scituat. in parochia Sanctae Michaelis11 in Woodstreet, London, and doth not shew in what Ward the said Parish was, et non allocatur;12 For it is holden in 7 H. 6 36b. Every Ward in London is an Hundred in a County, and every Parish in London is as a Town in an Hundred, and it is not necessary to set forth in what Hundred a Town no more in what Ward a Parish is; but the same is commonly averred, because that there are divers Parishes in London of one name, and the Ward is added to make distinction of one Parish from another; for which cause it was Resolved, That in the Case at Bar the Indictment was sufficient, notwithstanding the leaving out of the Ward, for it doth not appear to us that there is any other Parish of that name, and this Parish is particularly described, viz. in Parochia Sancti Michael’ in Wood-street, London. And therewith agreeth the Rule of the Book in 7 H. 6 36b. for a Bill was ruled good in Parochia Sancti Laurentii in Judaismo,13 omitting the Ward.

The fourth Exception was, because it doth not appear in what Parish the Sherif did commanded Fells the Sergeant to arrest the Defendants; and the same was disallowed by all the Justices; for the words of the Indictment are, taliter in eadem Curia process. fuit, &c.14 and eadem Curia fully shewed that the Warrant was made at the same Court mentioned before; and the same was expressly alledged to be holden in Parochia Sancti Michaelis, &c.

|[67 a] 5. It was excepted against the Indictment, viz. That the precept was to arrest the Defendant, si inventus foret infra libertates Civitatis praed’15 and the Indictment is quod in parochia S. Martini Bowyer Rowe in warda de Farringdon infra Londinum praed’16 the Sergeant arrested him, so that he hath not pursued the precept, for the precept is infra libertates17 London, and notwithstanding that, the indictment was resolved to be good, for the said Parish and Ward in London shall be intended to be within the liberties of London, for these words liberties of London are more spacious than London, and include in them the City of London itself.

And 9 Exceptions were taken to the verdict. 1. That there is materialvariance betwixt the Indictment and the Verdict, for the Indictment doth suppose that Piot Sherif of London upon a Plaint entred, made a precept to Fells, Serjeant at Mace to arrest the said MacKalley, the Def.; & by the verdict it appeareth that there was not any such precept made, but that by the custom of London, after the plaint entered, any Sergeant ex officio at the request of the Plaintiff may arrest the Defendant absque aliquo praecepto ore tenus, vel aliter,18 so that the Indictment being special, to make this offence Murder, by Construction of Law upon the special matter, without any forethought malice ought to be followed, and proved in Evidence, which is not done in this case. And because the Jurors have not found the said special matter contained in the Indictment, but other matter, Judgement cannot be given against the Prisoners upon this Indictment. To which it was answered, and in the end Resolved, That there was sufficient matter in the verdict pursuant to the matter contained in the Indictment, upon which the Court ought to give judgement of death against the said Prisoners, notwithstanding the said variance, and that for two causes.

1. Because that the Warrant which the Sergeant had to arrest the Defendant was but circumstance, and is not necessary to be precisely pursued in Evidence to be found by the Jury; but it sufficeth if the substance of the matter be found without any such precise regard to circumstance: and therefore, if a man be indicted, that he with a dagger gave another a mortal wound, upon which he died, and in evidence it is proved that he gave the wound with a Sword, Rapier, Baston, or Bill, in that case the Defendant ought to be found guilty, for the substance of the matter is, That the party indicted hath given him a mortal wound, whereof he died, and |[67 b] the circumstance of the manner of the weapon is not material in case of Indictment; and yet such circumstance ought not to be omitted, but some weapon ought to be mentioned in the Indictment. So if A. B. and C. are indicted for killing J. S. and that A. strook him, and that the others were present, procuring, abetting, &c. And upon the Evidence it appeareth, that B. strook him, and that A. and C. were present, &c. in this case the Indictment is not pursued in the circumstance; and yet it is sufficient to maintain the Indictment, for the Evidence doth agree with the effect of the Indictment, and so the variance from the circumstance of the Indictment is not material; for it shall be adjudged in Law the stroke of every of them, and is as strongly the act of the others, as if they all three had holden the weapon, &c. and had altogether strock the dead; and therewith agrees Plow. Com. 98 a.

So if one be indicted of the murder of another upon forethought malice, and he is found guilty of Manslaughter, he shall have judgment upon this verdict, for the killing is the substance, and the pretenced malice the manner of it; and when the matter is found, Judgement shall be given thereupon, although the manner be not precisely pursued; and therewith agreeth Plow. Com. 101. where it is said, when the substance of the act and the manner of the act, are put in issue together, the Jury find the substance and not the manner, Judgement shall be given for the substance. And I moved all the Judges and Barons, if in this case of killing of a Minister of Justice in the execution of his office, the Indictment might have been general, sc. that the prisoners felonice, voluntarie, et ex malitia, sua proecogitata &c. percusser’, &c.19 without alleging any special matter; and I conceived that it might well be, for the Evidence would well maintain the Indictment, for as much as in this case the Law doth imply forethought malice. As if a Theef, who offereth to rob a true man, kill him in resisting the thief, the same is murder of forethought malice; Or if one kill another without provocation, and without any forethought malice, which can be proved, the Law will adjudge the same murder, and implieth malice; for by the Law of God every one ought to be in love and charity with all men, and therefore when he killeth another without provocation, the Law implieth malice: and in both these cases they may be indicted generally that they killed of forethought malice, for malice implied by Law, given in Evidence, is sufficient to maintain the general Indictment. So in the case at barr; And in this case of a Sergeant, the Indictment might have been generall, That he feloniously and of his forethought malice killed the said Fells, and the special matter might well have been given in Evidence; |[68 a] quod fuit concessum20 by all the Judges, and Barons of the Exchequer. The second reason was, because it is expressly alleged in the Indictment, That the said John Mackalley, &c. eundem Richardum Fells, &c. felonice, voluntarie, et ex malitia sua praecogita, &c. percussit et inforavit, &c.21 so that above the special matter which implieth malice, it is expressly contained in the Indictment, that he feloniously and ex malitia proecogitata killed the said Fells, and then although the special matter given in Evidence had varied in substance from the special matter contained in the Indictment, yet for as much as it was resolved that the Indictment in this case might be general, for this cause the Evidence, although it doth not agree with the special matter, yet it proveth, that the prisoners killed the said Fells of their forethought malice; and so well maintaineth the Indictment. And that in the end was the opinion of all the Judges and Barons of the Exchequer.

2. Exception was taken to the verdict, That the Custom found by the Jury, that after the plaint entred, the Defendant might be arrested by his body, was against Law, because the Defendant ought to be first summoned before that the warrant in nature of a Capias22 can issue forth, for his body shall not be arrested if he hath sufficient, et non allocatur;23 for it appeareth by the book in 21 E. 4 66b. That by common experience daily used, that after a plaint entred, by the custom of London, (which is established and confirmed by Parliament) the Defendant may be arrested. And in this case three points were Resolved by all the Judges and Barons of the Exchequer. 1. that although the process be apparently erronious, that yet if the Minister of Justice in the execution thereof be killed, the same is murder. For the Minister is not bound to dispute the authority of the Court, which awardeth the process, but his office is to execute the process: and therefore, if a Capias in an action of Debt be awarded against a Baron, or other Peer of the Realm, which is erronious (because their bodie by the Law is privileged in such cases) yet if the Officer be killed in execution thereof, it is murder. So if a Capias be awarded where a Distress ought to issue, and in execution thereof the Officer is killed, it is Murder, for as the Sheriff, &c. when he is charged with an Escape shall not take advantage of any Error in the proceeding so the Defendant when he killeth the Sheriff, &c. shall not take advantage of Error in the proceeding. 2. It was Resolved, That if any Magistrate or Minister of Justice, in execution of their office, or in keeping of the peace according to the duty of his office be killed, it is murder, for their contempt and disobedience to the King, and to the Law, for it is contra potestatem Regis et legis:24 and therefore, if a Sheriff, Justice of Peace, Chief Constable, Petit |[68 b] Constable, Watchman, or any of the Kings, Ministers, or any who comes in their aid be killed in doing of their office, it is murder for the cause aforesaid: for when the Officer or Kings Minister by process of Law (be it erroneous or not) arresteth one in the Kings name, or requireth the breakers of the peace to keep the peace in the Kings name, and they notwithstanding disobey the arrest or Commandement in the Kings name, and kill the officer, or the Kings Minister, reason requireth that this killing and slaying shall be an offence in a higher nature than any offence of this nature; and that the same is voluntary, felonious, and murder of forethought malice. And a Watchman by the Law may arrest a Night-walker 4 Hen. 7 2. and if a Watchman arresteth such a one, and he killeth him, the same is murder. Vide Heydons case in the Fourth Part of my Reports. And it is true, That the life of a man is much favoured in Law, but the life of the Law it self (which protecteth all in peace and safety) ought to be morefavoured, and the execution of the process of Law and of the offices of Conservators of the peace, is the Soul and life of the Law, and the means by which Justice is administered, and the peace of the Realm kept. Vide 2 R. 3 21. If the Principal be erroneously attainted, the Accessory shall be put to answer, and shall not take benefit for the saving of his life of the erroneous proceeding against the Principal. 3. It was Resolved, That the Officer or Minister of the Law in the Execution of his office, if he be resisted or assaulted, is not bound to flye to the wall &c. (as other Subjects are) for Legis minister non tenetur in executione Officii fugere, seu retrocedere.25

3. It was Objected, That the Defendant ought not have been arrested before that the plaint was entered of Record in the Court before the Sheriff, for this same is in truth the Court of Record where the Declaration and pleading shall be. To that it was answered and Resolved by all, That after the plaint entered in the Porters book, and before the entry thereof in the Court before the Sheriff, the Defendant may be arrested by the Custom of London; and therewith agreeth the book in 21 E. 4 66. in the point. Vide 9 E. 4 48b.

4. It was Objected, That the said Arrest found by the verdict was not lawful for the Sergeant in this case ought to have when he arrested him, shewed at whose sute, out of which Court, and for what cause he made the arrest, and in what Court the same is returnable, to the intent, that if it be for any execution, he might pay the money, and free his body, and if it be upon mean process either to agree with the party to put in bayl according to the Law, and to know when he shall appear, as it is Resolved in the Countess of Rutland’s |[69 a] Case, in the sixth part of my Reports. But in the Case at barr the Sergeant said nothing but I arrest you in the Kings name, at the sute of Mr. Radford, and so the arrest not lawfull, and by consequence the offence is not murder. To that it was Answered and Resolved, That it is true that it is holden in the Countess of Rutland’s case, That the Sheriff, or Serjeant ought upon the arrest shew at whose sute, &c. But the same is to be intended when the party arrested submitteth himself to the arrest, and not when the party (as in this case Murray did) maketh resistance and interrupteth him, and before he could speak all his words, he was by them mortally wounded and murdred, in which case, the prisoners shall not take advantage of their own wrong. It was also Resolved, That if one knoweth that the Sheriff; &c. hath process to arrest him, and the Sheriff coming to arrest him, the Defendant to prevent the Sheriff to arrest him, kill him with a gun, or any other engine, or weapon, before any arrest made, the same is murder: a fortiori,26 in the case at bar when he knew by the said words, that the Sergeant came to arrest him.

5. Exception was taken, because it was not found by the Verdict, That the said Mackalley felonice percussit, &c. but percussit only, et quod iidem Johann’ Murray, et Johannes English fuerunt praesentes, auxiliantes, &c.27 and doth not say, felonice; et non allocatur,28 for the office of the Jury is to shew the truth of the fact, and to leave the judgement of the Law to the Court; but they have well concluded, And if super tota materia’ praed. videbitur Justic. et Cur. hic, quod praed interfectio dic. Rich. Felles sit murdrum, tunc Jurat. praed. dic. super Sacramentum suum quod praed. Johannes Murray, Johannes Mackalley; et Johannes English sunt culpabiles, et quilibet eorum est culpabilis de murdro praed. Rich. Felles modo et forma prout. per Indictamentum praed. supponitur, &c.29 And because the Judges and the Court hath resolved upon the special matter, that it is murder, the Jury have found him guilty of murder contained in the Indictment.

6. It was Objected, That the Sergeant at the time, nor before he arrested shewed the prisoner his Mace; for thereby he is known to be the Minister of the Law, and from thence he hath his name, scil. serviens ad clavam; Et non allocatur for two causes. 1. because the Jury have found, That he was serviens ad clavam dicti Vicecomitis, et juratus, et cognitus, et minister Cur.30 And a Bayliff sworn and known needeth not (although the party demand it) shew |[69 b] his warrant, nor any other special Bailif is not bound to shew his warrant without demanding of it, 8 E. 4 14. 14 H. 7 9b. 21 H. 7 23. and where the books speak of a known Baylif, it is not requisite that he be known to the party who is to be arrested, but if he be commonly known it is sufficeth. 2. If notice were requisite, he gave sufficient notice when he said, I arrest you in the Kings name &c. and the party at his peril ought to obey him; and if he hath no lawfull warrant, he may have his action of false imprisonment. So that in this case without Question the Sergeant needeth not to shew his Mace; and if they shall be driven to shew their Mace, it should be a warning for the party arrested to flye.

7. Another Exception was taken to the Verdict, because the Custom which gave to the Sergeant warrant to arrest, was not pursued; for the custom is, Quod aliqua persona existens Serviens ad clavam ad requisitionem partis hujusmodi querelam sic levantis, &c. usa fuit arrestare,31 which ought to be taken that the pleint ought to be entered before the request; but afterwards it is found that the request was before the pleint, and so the Custom not pursued; et non allocatur. For by the Custom it is not proved, but that the request may be as well before as after the pleint entered; and so is the Common usage and experience.

8. It was Objected, That the verdict was repugnant in itself, for first they found, that the pleint was entered de Recordo in Rot. Cur. Computator, in his verbis, Die Sabbathi 17 die Novemb.32 and afterwards they found, quod intratio praed. in Rot. Cur. praed. facta fuit die Lunae 19 die November &c.33 And the jury cannot find any thing against the Record itself. Vide 11 H. 6 42. 9 H. 6 37. 28 Ass. 34. 47 E. 3 19. 11 H. 4 26. 9 H. 7 3 13 H. 7 14. 33 E. 3. Judgment 255. Dyer 32 Eliz. 147, &c. And all that was affirmed for good Law. But that maketh the Case stronger against the Prisoners, for now the Judges ought to judge upon a pleint entered of Record in Cur’ Computator.34 the Saturday the seventeenth of Novemb. which was before the arrest.

9. Exception was taken to the Verdict, that the entry of the pleint was without form, and so short and obscure, quod opus est interprete; et non allocatur.35 For it was found that it was according to the Custom of London; which is but a Remembrance to draw the Declaration at length in the Court of Pleas, which notwithstanding is by Custom sufficient to have the Defendant arrested. And afterwards at the Sessions [of Newgate held] the fifth day of May after this Term, the two Chief Justices openly declared the Resolution of all |[70 a] the Judges and Barons of the Exchequer, to the great satisfaction and contentment of all there present. And accordingly judgment of deathwasgiven against the three Prisoners by the Recorder of London, in the presence of the said two Chief Justices. And the said Mackalley was executed with other Prisoners at Tyborn.

[1. ][Ed.: It is provided, agreed, and granted that both great and small should have and receive justice in the lord king’s court.]

[2. ][Ed.: It is the most charitable thing to do justice at all times when it is needed,]

[3. ][Ed.: To God, to the Country, to you.]

[4. ][Ed.: the workshops of the law.]

[5. ][Ed.: itinerant justices.]

[6. ][Ed.: Falsifying or counterfeiting a seal or coin.]

[7. ][Ed.: which was made before the conquest. . . . I will only cover the main points.]

[8. ][Ed.: If you seek antiquity, it is ancient; if dignity, it is most honorable; if jurisdiction, it is very broad.]

[9. ][Ed.: I, Ine, by the grace of God king of the West Saxons, by the exhortation and teaching of Cenrede my father, and Hedde my bishop, and Erkenwald my bishop, and of all my ealdormen and wise elders of my kingdom, and by a great gathering of the servants of God, being solicitous of the health of our souls and the estate of my kingdom, have appointed right union and just judgments to be laid down with benign diligence for the establishment and strengthening of my people; and it shall be lawful for no ealdorman or other person of our whole realm to abolish judgments.]

[10. ][Ed.: King Edward warned all his wise men to be at Exeter to investigate together and enquire how their peace might be made better than before etc.]

[11. ][Ed.: meeting of wise men.]

[12. ][Ed.: at Grateley.]

[13. ][Ed.: a meeting of all the noble and wise men.]

[14. ][These are the judgments of Exeter which were instituted by the wise men of the council of King AEthelstan, and again at ‘Fresresham’, and a third time at [blank] where these were defined and confirmed together.]

[15. ][Ed.: council of wise men.]

[16. ][Ed.: These are the constitutions which King Edgar instituted by the council of his wise men.]

[17. ][Ed.: This is the advice which King AEthelred and all his wise men brought in for the improvement of the peace of the whole people.]

[18. ][Ed.: council of spiritual and lay men.]

[19. ][Ed.: These are the words of peace and of the speech which King AEthelred and all his wise men confirmed with the army which came with Anulanus, Justinius and Guemundo son of Stigranus.]

[20. ][Ed.: These things were instituted [NB belongs with next passage].]

[21. ][Ed.: by King AEthelred and his wise men at ‘Habam’.]

[22. ][Ed.: a meeting of wise men, spiritual and temporal.]

[23. ][Ed.: The king assembled a great synod of the clergy [literally, divine order] and of secular persons at the city of London at the holy feast of Easter.]

[24. ][Ed.: These are the institutions which King Edmund and his bishops, with their wise men, instituted at ‘Culincona’, etc.]

[25. ][Ed.: I, King Edmund, command and order all people, both old and young, who are within my jurisdiction, that I have sought out with wise clerks and laymen . . .]

[26. ][Ed.: Venerable council of wise men.]

[27. ][Ed.: These are the statutes of Canute, king of the English, Danes and Norse, with the venerable advice of his wise men, to the praise and glory of God, and his regality, and the common profit, made at the feast of Christmas at Winchester etc.]

[28. ]Pryn sur 4 Institut. f. 78. [Ed.: in the fifth year of his reign, namely.]

[29. ][Ed.: For one hundred and thirty years before the compilation of the decretals which were compiled in the year of our Lord 1150, in the seventh year of the pontificate of Pope Eugenius III, and before the compilation of any other canons whatsoever, [King Canute] summoned the whole body of prelates, peers and magnates of his realm, in his public parliament; and archbishops Wulstan and Adenoldo, bishop Ailwin of Elmham, and other bishops their suffragans, seven dukes, with all the earls, and many abbots of various monasteries, and great crowds of knights, personally appeared there with a copious multitude of people; and, while all of them were still in the same parliament, it was ordered and decreed by the royal will, everyone consenting, that the monastery of St. Edmund, etc. should thenceforth for ever be free and exempt for ever from all jurisdiction of the bishops of that county etc. The illustrious King Hardicanute, son of the aforesaid King Canute, his heir and successor, and a devoted imitator of the ways of his father, with the praise and favour of bishops Aegelnod of Dover, now of Canterbury, and Aelfric of York, and other bishops their suffragans, and also of the whole body of people of his realm, have constituted and confirmed the above mentioned command of worldly princes.]

[30. ][Ed.: The laws are silent amidst arms [during war].]

[31. ]Pryn sur 4 Institut. 1, 7. 4 Inst. 12.

[32. ][Ed.: Writ to require a person to act or show cause to avoid acting on the basis of a record, such as a judgment.]

[33. ]a) Pryn sur Inst. 1, 2, 3, tc. 78, &c. Inst. 12.

[34. ][Ed.: The Method of Holding Parliament ...,the title of the treatise.]

[35. ][Ed.: a meeting of noble and wise men, etc.]

[36. ]F.N.B. 14. d.

[37. ]Richardus Hagustadensis & Math. Paris. in brevi Historia.

[38. ][Ed.: In the year of our Lord 1100, [King Henry I] with his council decreed that the common mint which was undertaken by the citizens or the county, which was not in the time of King Edward, should not from thenceforth be done. Also that he would not sell or let to farm churches on the death of the bishop or abbot.]

[39. ]Ex Chronico de Peterburgo.

[40. ][Ed.: Called together the clergy and people of the realm, with all the nobility, to Clerkenwell.]

[41. ][Ed.: The King to the Sheriff etc. Know ye that it is agreed, with the assent of the archbishops, earls, barons and all our faithful subjects of England, that every nine knights throughout England should find the tenth knight ready with horses and arms for the defence of our kingdom, etc.]

[42. ][Ed.: to speak the mind.]

[43. ]Co. Lit. 110. b.

[44. ][Ed.: testament.]

[45. ][Ed.: according to mentum testatoris (the mind of the testator).]

[46. ][Ed.: arbitration according to the mind of the arbitrator.]

[47. ]Tay. Hist. Gav. 65. Co. Lit. 110. a.

[48. ][Ed.: the great meeting.]

[49. ][Ed.: the meeting of wise men.]

[50. ][Ed.: The common council, great court, general meeting, etc.]

[51. ][Ed.: The King also has his court in his council in his parliaments, in the presence of the prelates, earls, barons, peers and other learned men.]

[52. ][Ed.: Henry, baron de Beaumont, of the king’s great and secret council.]

[53. ][Ed.: Whereupon, the leading members of the lord king’s council, both justices and lay persons, having been called into parliament, it is agreed in parliament, etc.]

[54. ][Ed.: Common council, and the king’s common council, and the common council of the realm.]

[55. ][Ed.: Waste]

[56. ]Pryn sur 4 Institut. 2, &c.

[57. ][Ed.: Be it known that not long since, in the times of our forebears formerly kings of England, in their various parliaments, etc.]

[58. ]Co. Lit. 110.a.

[59. ][Ed.: assembly of the estates, or the estates.]

[60. ][Ed.: where doubtful judgments are determined and new remedies appointed for new injuries, and there everyone who should merit it is given justice.]

[61. ]Plowd. 398. b. 11 Co. 14. a.

[62. ][Ed.: the parliament is a court of the greatest honour and justice, of which no one ought to imagine a dishonourable thing.]

[63. ][Ed.: In praise of the laws of England.]

[64. ]Camden.

[65. ][Ed.: There are with us three distinctions with respect to the tribunals, courts or jurisdictions of England; for some are ecclesiastical, some temporal, and one is mixed: and that is the greatest and most extensive, not so long ago called parliament (borrowing the French name). The greater Anglo-Saxonscalled it ‘witena gemot’, that is, a meeting of wise men, and ‘gerednis’, that is, a council, and ‘micel synod’ (from the Greek word synod), that is, a great meeting. The Latin writers of that and subsequent periods call it the common council, the highest court, the general plea, the great court, the great meeting, the presence of the king, prelates and peers gathered, the common council of the whole realm, etc. And as Livy called the supreme council of Aetolia ‘Panetolium’, so ought it rightly to be called Pan-anglium. It consists of the king, the clergy, the nobles, and the mayors, knights and burgesses who have been elected, or (as is more significantly said in legal style) the king, the lords spiritual and temporal, and the commons: who represent the body of the whole of England. At certain times it does not exist, for it is proclaimed at the king’s pleasure whenever he needs advice concerning difficult and urgent matters, lest any damage be done to the state; and it is dissolved by the same power alone. It has the ultimate and sacrosanct authority in laying down, confirming, abrogating, interpreting and consolidating laws, deciding the more difficult lawsuits between private people, and in all things whatsoever that may belong to the health of the state or to any private matter.]

[66. ][Ed.: keepers or provosts of the counties.]

[67. ][Ed.: were ordained by ancient kings when earls were deprived of the custody [of the counties].]

[68. ][Ed.: If anyone leaves his lord without licence, or steals into another county, and then returns, he shall go back to the place where he was before and make amends of sixty shillings to his lord etc.]

[69. ][Ed.: If anyone should seek justice to be done him before any shire-man (that is, provost of a county), or other judge, and cannot have it, and the accused person will not give a gage of justice, he shall make amends of thirty shillings and within seven months do him such justice as he deserves.]

[70. ][Ed.: If he is an ealdorman, he shall forfeit his shire. He who takes a thief, or renders someone captive, and lets him go, or conceals the theft, shall pay for the thief according to his wergeld. If he is an ealdorman (that is, provost of a county), he shall lose his county, unless the king is willing to spare him.]

[71. ][Ed.: If anyone should seek justice before the shire-man or other judge.]

[72. ]Co. Lit. 109. b. 168. a.

[73. ][Ed.: keeper or provost of the county.]

[74. ][Ed.: we have committed to you the keeping of the county.]

[75. ]Co. Lit. 168.a.

[76. ][Ed.: Kent. Concerning a plea at Pennenden between Lanfranc, archbishop of Canterbury, and Odo, bishop of Bayeux, in the time of the great King William who conquered the English realm with arms.]

[77. ][Ed.: [Following the list of locations], together with the liberties and appurtenances of soke, sake, toll, team, flymenfyrm, grithbreche, [forestel], hamfare, infangthief, and all other customs equivalent to these, or less than these, on land and in water, in woods, in ways, and in meadows, and in all other things within the city and without, and in all other places.]

[78. ][Ed.: that the king commanded the whole county to meet without delay, and that there should be convened all the Frenchmen and especially the English who were learned in the old laws and customs; and they met at Pennenden, and sat down together, etc. At thiscasewerepresent Arnost, bishop of Rochester, AEthelric, bishop of Chichester, a most elderly man and very wise in the laws of the land, who was brought in a cart by the king’s command to discuss and explain the old customs of the laws, Richard de Tonbridge, Hugh de Montfort, William de Acres [Arques], Hamo the sheriff, and many others, etc., the king’s barons and his archbishops, and many of the said bishops’ men, etc., with the whole of that county, men of much and great authority, etc. And it was decided by all these good and wise men who were present, and also recorded and adjudged by the whole county, that just as the king himself holds his lands freely and quit in his demesne, so the archbishop should hold his aforesaid lands utterly free and quit in his, etc.]

[79. ][Ed.: that he hold the land, etc. quiet, or in peace, etc.]

[80. ][Ed.: Having heard the conclusion of this case, by many witnesses and arguments, the king approved it and, praising it with the consent of all his princes, confirmed it and firmly ordered it to be preserved unbroken thereafter.]

[81. ][Ed.: In the time of the great King William, who conquered the English realm by arms, and subjected it to his authority, it so happened that Odo, bishop of Bayeux, and the said king’s brother, arrived in England much earlier than Archbishop Lanfranc and resided in the county of Kent with great power, exercising considerable authority there. And because in those days there was no one in that county who could resist a man of such strength, because of the great power that he had, he seized numerous lands and a good many customs of the archbishopric of Canterbury for himself, and by way of usurpation gained control of them. Not long afterwards, however, the said Lanfranc, abbot of the church of Caen, also came to England by the king’s command to be archbishop of Canterbury, by God’s arrangement, and supreme primate of all England. He lived there for some time, and found many of the old lands of his church to be missing and distributed and given away by the negligence of his predecessors, and having made diligent enquiry and careful discovery of the truth he went to the king as soon as he could and earnestly asked that justice be done to him according to law, etc.]

[82. ]Co. Lit. 19. a, 392. b. 10 Co. 38. b.

[83. ][Ed.: concerning conditional gifts.]

[84. ]Cawley 132.

[85. ][Ed.: where the law makes no distinction, we ought not to distinguish.]

[86. ][Ed.: the vice of the man, . . .]

[87. ][Ed.: . . . the profession.]

[88. ][Ed.: namely, preposterous reading and premature practice,]

[89. ][Ed.: tortuous.]

[90. ][Ed.: in darkness, or in silence, suppressing the reasons;]

[91. ][Ed.: in order,]

[92. ][Ed.: for the living voice has I know not what efficacy:]

[93. ][Ed.: Whatever you find has been put in this book superfluously or mistakenly, correct and amend it, or pass it over with your eyes shut, for to remember everything and commit no faults is divine rather than human.]

[94. ][Ed.: Fare[well].]

[* ][Ed.: The initial pleadings are at Trinity 7 Jac. Rot. 2802.]

[1. ][Ed.: namely, together with all the other profits, rights, benefits and emoluments coming from or in any way belonging to all and singular the said offices, with the other premises, as plainly and fully and in as ample a manner and form as Thomas Manners, knight, etc., or any other or other before these times occupying the aforesaid offices, or any of them, had and took them Thomas, maliciously scheming and intending to hinder and deprive him the said William of the easement and profit of the messuage and of part of his aforesaid land, the said 29th day of September, in the sixth year (of the reign of King) James, constructed and erected a large pile of wood (lignile) in the said garden of the selfsame Thomas, and made it so high, etc. that by the wood, etc. not only all the windows and lights of the selfsame William of his hall and rooms but also the selfsame William’s door of his aforesaid hall were wholly stopped up, etc.; and the aforesaid Thomas, further scheming and maliciously intending greatly to harm the selfsame William, and utterly to deprive him of all the benefit, easement, and profit of the whole of his aforesaid messuage, on the aforesaid twenty-ninth day of September in the above-mentionedsixthyear, erected a certainbuilding for his sows and pigs in his aforesaid garden so near to the aforesaid hall and parlour of him the said William, and put his sows and pigs in the building in that garden and kept them there for so long a time, that by the foetid and insalubrious odours of the muck of the aforesaid sows and pigs of the aforesaid Thomas, penetrating and flowing into the hall and parlour and other parts of the messuage of the selfsame William, the same William and his servants, and other persons living in his aforesaid messuage, could not continue or remain in the aforesaid hall and parlour and other places of the same messuage without danger of infection: by virtue whereof the same William has wholly lost and parted with all the benefit, use, easement, and profit of the greatest part of his aforesaid messuage, for the whole time aforesaid, to the damage of the selfsame William of forty pounds, etc.]

[2. ][Ed.: The law does not favour the whims of the dainty:]

[3. ][Ed.: the habitation of man, the delight of the inhabitants, the necessity of light, and the wholesomeness of air,]

[4. ][Ed.: that the messuage was obscured with severe darkness,]

[5. ][Ed.: and to obscure the aforesaid messuage with severe darkness, etc.]

[6. ][Ed.: And the greater part of the messuage would be obscured with severe darkness, etc.]

[7. ][Ed.: that within the aforesaid city of York there is, and from all the time whereof the memory of man is not the contrary has been, this custom, that is to say, that if any one has windows with a view from the same over the land of his neighbour, that neighbour may, and has been used to, obstruct the view from those windows over his land as might seem most expedient to him.]

[8. ][Ed.: and the heavenly air feeds;]

[9. ][Ed.: whence it is said, A house is praised when it overlooks long fields.]

[10. ][Ed.: Light is sweet, and it is delightful to the eyes to behold the sun.]

[11. ][Ed.: And a king of Ethiopia (as Plutarch recites, in Conv. 7 Sap.), being once asked what was the best thing, answered, the light; for who is not naturally afraid of darkness?]

[12. ][Ed.: so much the more so (or, it follows that).]

[13. ][Ed.: that is, It is prohibited that anyone should do anything in his own land which might harm someone else; and you should so use your own as not to hurt others.]

[14. ][Ed.: and caused the fetid filth and other muck to flow out of the aforesaid house into the aforesaid fishery, as a result of which the (plaintiff) wholly lost the profit of his aforesaid fishery, etc.]

[15. ][Ed.: that the same Henry for a long time did not dare to remain in his aforesaid mansion house for fear of infection by the horrid stench of the smoke, filth and other muck, etc.]

[16. ][Ed.: so near to the aforesaid hall and parlour of him the said William, and put his sows and pigs in the building in that garden and kept them there for so long a time, that by the fetid and insalubrious odours of the muck of the aforesaid sows and pigs of the aforesaid Thomas, penetrating and flowing into the hall etc., the same William and his servants etc. living in the aforesaid messuage, could not continue or remain in the aforesaid hall, etc. without danger of infection: by virtue whereof the same William had wholly lost all the benefit, etc. of the greatest part of the aforesaid messuage for the whole time aforesaid.]

[1. ][Ed.: A wrong is committed not only when someone is struck with a fist, or beaten or wounded with clubs, but also when he is insulted or made the subject of infamous verses.]

[1. ][Ed.: on the eighteenth day of November between the hours of five and six after mid-day,]

[2. ][Ed.: happened in this case.]

[3. ][Ed.: in the darkness,]

[4. ][Ed.: in the open light,]

[5. ][Ed.: he (who) does evil hates the light.]

[6. ][Ed.: by reason of office,]

[7. ][Ed.: in the night of the same day,]

[8. ][Ed.: at night.]

[9. ][Ed.: a Law Day, (a day on which judgment may be given).]

[10. ][Ed.: It is good to act well on the Sabbath.]

[11. ][Ed.: in the court of the said lord king in his Compter situated in the parish of St Michael.]

[12. ][Ed.: not allowed.]

[13. ][Ed.: in the parish of St Leonard in the Jewry,]

[14. ][Ed.: the process in the same court was such, etc.]

[15. ][Ed.: if (the defendant) should be found within the liberties of the aforesaid city.]

[16. ][Ed.: that in the parish of St. Martin Bowyer Row in the ward of Farringdon within London aforesaid.]

[17. ][Ed.: within the liberties.]

[18. ][Ed.: without any precept, whether by word of mouth or otherwise,]

[19. ][Ed.: feloniously, wilfully, and of their malice aforethought, etc., struck, etc.]

[20. ][Ed.: which was granted.]

[21. ][Ed.: feloniously, wilfully, and of his malice aforethought, etc. struck and stabbed, etc., the same Richard Fells, etc.]

[22. ][Ed.: Writ of arrest.]

[23. ][Ed.: and not allowed;]

[24. ][Ed.: against the power of the king and the law:]

[25. ][Ed.: A minister of the law, in the execution of his office, is not expected to run away or draw back.]

[26. ][Ed.: so much the more so (or, it follows that).]

[27. ][Ed.: feloniously struck (but) struck (only) and that the same John Murray and John English were present, aiding, etc.]

[28. ][Ed.: feloniously and (the objection is) not allowed.]

[29. ][Ed.: if upon the whole matter aforesaid it shall appear to the justices and the court here that the killing of the said Richard Fells is murder, then the aforesaid jurors say upon their oath that the aforesaid John Murray, John Mackalley and John English are guilty, and each of them is guilty, of the murder of the aforesaid Richard Fells in manner and form as is supposed by the aforesaid indictment, etc.]

[30. ][Ed.: the said sheriff’s sergeant-at-mace sworn and known, and a minister of the court.]

[31. ][Ed.: that any person being a sergeant-at-mace, thus raising a plaint at the request of such party, has been accustomed to arrest,]

[32. ][Ed.: of record in the court-rolls of the Compter in these words, on Saturday the seventeenth day of November.]

[33. ][Ed.: that the aforesaid entry in the aforesaid court-rolls was made on Monday the nineteenth day of November, etc.]

[34. ][Ed.: in the court of the Compter.]

[35. ][Ed.: it is a labour to interpret it; and (this point was) not allowed.]