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Part Ten of the Reports - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. I 
The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 1.
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Part Ten of the Reports
The Tenth Part of Coke’s Reports was published in 1614. It was originally entitled La dixme part des Reports de Sr. Edw. Coke chivalier, chiefe Justice Dengleteere des plees deste tenus devant le roy mesme assignee, & del Counseil prive d’Estat: des divers resolutions & Jugements donez sur solennes arguments & avec grand deliberation & conference des tresreverend Juges & sages de la ley, de cases en ley queux ne fueront unques resolvs ou adjuges par devant: et les raisons & causes des dits resolutions & Jugements. Publie en la unziesme an de treshaut et tresillustre Jaqves roy Dengleterre, France, & Ireland, & de escosse le 47., le fountain de tout Pietie & Justice, & la vie de la ley. In English, The Tenth Part of the Reports of Sir Edward Coke, Knight, Lord Chief Justice of England, of the Pleas assigned to be held before the king Himself, and of the Privy Council of State, 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 Eleventh year of the most high and Most Illustrious James, King of England, France, and Ireland, and of Scotland the 47., the Fountain of all Justice, and the life of the Law. This part covers a wide range of issues, with a number of cases dealing with acorporation’spowers and liabilities; the power of particular courts; as well as more issues dealing with estates, leases, and inheritance.
Epigrams from the Title Page:
Justitia non novit Patrem, Matrem, neque Fratrem; personam non accepit, sed Deum imitatur.3
Westm. 2. cap. 39.
Ad Officium Justiciariorum spectat, unicuique coram eis placitanti Jusititiam exhibere.4
(Preface) Deo, Patriae, Tibi.5
At my times of Leisure, after my Publick Services (chearfully taking Industry, mine old Acquaintance, for my Comfort, and aiming at the Good of my dear Country for my comfort) and beginning with this continual and fervent Prayer, The glorious Majesty of the Lord our God be upon us; oh! prosper thou the Works of our hands upon us, Oh! prosper thou our handy works;6 I have, by the most gracious direction and assistance of the Almighty, brought forth and Published this Tenth Work to the view of the Learned and Benevolent Reader.
This part containeth a true and just Report of certain Judgments and Resolutions given in his Majesty’s principal Courts of Justice, upon great and mature deliberation, and in Cases of as great Importance and Consequence as in any of my former Commentaries, which I have taken upon me and finished (though it hath been more than difficult to me) to avoid that, the which venerable Verity doth blush at for fear, that is, That she which is the Foundation of Justice should not be hidden and unknown; Veritas abscondi erubescit; nihil enim magis metuit quam non proferri in publicum, vult se in luce collocari; & quis illam occulat occultetue, quam omnium oculis expositam esse est aequissimum.7 Neither is she pleased, when once she is found out and revealed to be called into argument and question’d again, as if she were not in Verity indeed; and therefore the Rule is, Eatenus ratiocinandum est donec Veritas inveniatur; ubi inventa est Veritas, ibi figendum Judicium:8 Nay, Sometimes Truth is lost by too much altercation, nimia altercatione veritas amittitur.9 She takes small delight with varnish of Words or garnish of Flowers; for simplex est sermo, Veritas, άπλο̃ς ὁ λόγος τῆς ὐληθείας ἔφυ,10 for her place being between the Heart and the Head doth participate of them both, of the Head for Judgment, and of the Heart for Simplicity. Now whether it be not necessary that the true and just Reasons and Causes of these Judgments and Resolutions, which are not expressed in any Record, for the advancement of Truth and the preventing of Error, in matters of so great Importance and consequence should be plainly and faithfully published to all Posterity, I leave to the Censure of the Learned and Judicious Reader.
Le Case de Sutton’s Hospital.I. I have Reported in the first place (though it be not first in time) the Case of the Hospital of King James, founded by Tho. Sutton Esq; for that in mine Opinion it doth merit to have the Precedency for two Causes. I. For that it was an Exchequer Chamber Case, where, by the Verdict of the Grand Jury of all the Judges of England, it was for the Hospital found Billa vera.11 2. For that the Foundation of this Hospital is Opus sine exemplo.12 The imitation of things that be evil doth for the most part exceed the Example, but the imitation of good things doth most commonly come far short of the President: But this Work of Charity hath exceeded any Foundation that ever was in the Christian World, nay the Eye of Time it self did never see the like.
The yearly value of the possessions first given.For, the first Gift by Sutton of Lordships, Manors, Lands and Tenements to continue for ever for the Maintenance hereof, doth amount to the clear yearly value of three thousand five hundred pound, or near thereabouts, and within these few years will be encreased to about the yearly value of five thousand pounds. Probatio charitatis exhibitio operis.13 And besides all this, Sutton left to descend to the Plaintiff (a Man of mean quality) the Manor of Tarbock in the County of Lancaster, consisting of a fair ancient House, two Parks and large Demesns, plentifully stored with Timber, of the yearly value of 300 l. and 50 l. by the year, of Rent of Assise, together with the Rectory of worth 100 l. per Annum within the same County.
To what intents and purposes the Revenues shall be imployed.The large Revenues of this famous Hospital are to be imployed principally for four special intents and purposes. I. For the Relief of such worthy and well esteemed Captains, Commanders and Soldiers, as be unmarried; and have adventured their Lives in the Wars, for the Service of the Realm, and are fallen into poverty and impotency. 2. For redeeming of poor Captives, especially such as are under the miserable Thraldom of Infidels, and constantly keep their Faith and the profession of true Religion. 3. For the erection of a free School and maintenance of a Learned School-Master and Usher for training up of poor Children in good Literature and vertuous Education, and foravoiding of Idleness, the Mother of all Vice and Wickedness. 4. Within this Hospital there shall be for ever maintained a grave and learned Divine for the Instruction of all within this Hospital, by Preaching of Gods Holy Word, for the due celebration of Divine Service, and the Holy Sacraments, and Catechising of the Youth in the Principles of true Religion; for the accomplishment and maintenance of which and other godly and charitable Uses, the said Founder hath left also a very great and large Stock of Mony to his Executors, Richard Sutton Esq; and John Law Gent. two faithful, constant, and industrious persons.
This Work of Piety and Charity is founded in the spacious and specious House called the Charter-House, in the Parish of St. Sepulchre, in the County of Middlesex, having fair Orchards and Gardens, and containing twenty Acres within the precinct thereof, so as a Man may say of it, that it is tanquam Orbis in Urbe;14 a place (as it appeareth by Record and History) ordained of God for Pious and Charitable Uses. For Sir Walter Many of Henalt (who was created by King Edward the third Knight of the Garter, for his Service which with singular commendation he performed in the French Wars) when the pestilence so reigned in London, that the Church-yards were not sufficient to bury the dead Bodies, especially of the Poor, purchased the place where now this famous Hospital is erected, and caused the same to be consecrated for the burial of poor Christians (which, whiles they lived were the Temples of the Holy Ghost) And the Record telleth you that Anno Domini 1349. & Anno Regni Regis E.3.23. Regnante magna Pestilentia consecratum fuit hoc Caemitarium, &c. in quo, & infra septa ejusdem sepulta fuerunt mortuorum corpora plusquam quinquaginta millia.15 But after the Plague by the goodness of the Almighty ceased, the same Sir Walter Many, in the year of our Lord 1371. and in the forty fith year of the Reign of King Edward the third founded the Carthusian Monks there, who by corruption of speech were vulgarly called the Monks of the Charterhouse. So as the Soyl which of ancient Time was given by Sir Walter Many, a Knight and a Soldier, for the Sepulcher of poor Men when they were dead, is now by Thomas Sutton an Esquire, and a Soldier, converted and consecrated to the Sustenance of the Poor and Impotent whiles they live. And therefore a Man may truly apply to this place the saying of the Royal Prophet, “Thou Lord of thy goodness best prepared it for the Poor.”16 And this Case was Adjudged with the great Applause of all that heard it, or of it, and principally for four causes. 1. For the honour of our Religion, that hath produced such a Work of Piety and Charity, as never was in the Christian World for the first Foundation. 2. For the glory of the Kings Majesty, to whom ex congruo et condigno17 it is dedicated and beareth his Name. 3. For the increase of Piety and Charity, ne homines deterrerentur a piis & bonis operibus:18 And, lastly, ut obstruatur os iniqua loquentium.19 And I dare affirm it, for the honour of our Religion, that more of such good Works of Piety and Charity have been founded within this Realm since the beginning of the Reign of our late Queen Elizabeth of ever blessed Memory, during the glorious Sunshine of the Gospel, than in many Ages before. And it hath been observed, That (by the blessing of Almighty God) this Kingdom of England, for Piety, Profit and Pleasure, viz. 1. For this and such other Works of Piety. 2. For the Crowns Inheritances of Honors, Manors, Lands, &c. and certainty of yearly Profit. And Lastly, for Forests, Chases, Parks, and other places of pleasure, hath exceeded the greatest Monarchy in the Christian World.
Mary Portington’s Case.II. Then have I published in Mary Portingtons Case, for the general good both of Prince and Country, the honourable Funeral of fond and new-found Perpetuities, a monstrous Brood, carved out of meer Invention, and never known to the ancient Sages of the Law; I say monstrous, for that the Naturalist saith, Quod monstra generantur propter corruptionem alicujus principii.20 And yet I say honourable, for that these Vermin have crept into many honourable Families. At whose solemn Funeral I was present, and accompanied the dead to the Grave of Oblivion, but mourned not, for that the Commonwealth rejoyced, that fettered Freeholds and Inheritances were set at liberty, and many and manifold Inconveniences to the Head and all the Members of the Commonwealth thereby avoided.
Jenning’s Case.III. Jenning’s Case vouched in Mary Portington’s Case and doth concern the common Assurance of the Realm.
Lampet’s Case.IV. And next after cometh Lampet’s Case, where Perpetuities of Leases for many thousand years, are by consequence overthrown.
Case of the University of Oxford.V. The Case of the University of Oxford (a Famous Seminary of the Church and Commonwealth) tendeth to the advancement of Gods true Religion, and in some degree for the better maintenance of a Learned and Religious Ministry, out of both of the Universities of Cambridge and Oxford.
Bishop of Salisbury’s Case.VI. The Bishop of Salisbury’s Case against both the diminution of the Possessions and yearly Revenues of the Archbishops and Bishops of the Realm, and the prejudice of their Successors.
Whistler’s Case.VII. Whistler’s Case, containing divers material Points for the better construction of Letters Patents of Inheritance in divers Points commonly hapning.
Wardens of St. Saviours.VIII. The Case of the Church-wardens of the Parish of St. Saviours, wherein Letters Patents of Leases are well expounded, for the quieting of the Possession of many of the Kings Farmours, and by consequence of the Inheritance and Estates of many others.
Case of the Court of Marshlesa.IX. The Case of the Court of the Marshalsea, wherein the Original Institution and Jurisdiction of that Court is clearly manifested. And albeit the Law was well known before in this Case, both by our Book Cases and Records in all succession of Ages: yet as in great Rivers, the courses, windings, fillings in, and out-lets are by experience vulgarly known, whereas the very Fountain and Head it self lie many times hidden and secret, so in this very Case, the Capacity, Process and Priviledge of this Court was often resolved in our Books and Years of Terms, and the Jurisdiction commonly known, and yet the true original Institution and Fountain it self lay somewhat deep and obscure, until it was wrought out by Antiquity, which hath so manifested the true sense of the ancient. Acts of Parliament, and the reason of our Books concerning the original and true Jurisdiction of this Court, as the very opposites, being by venerable Antiquity inlightened, are by Reason convinced, and by Authority satisfied; and therefore they are worthy of reprehension which contemn or neglect the study of Antiquity (which is ever accompanied with dignity) as a withered and back-looking curiosity: multa ignoramus quae non laterent si veterum lectio fuit nobis familiaris:21 ,22 And as the Aluminor spoken of in Law, giveth light and lustre to the letter, or figure to the coloured; so Antiquity doth give light with great grace and ornament, both for the understanding and meaning of the Letter of ancient Acts of Parliament, and of our Book Cases and Authorities in Law. I wish the like were done for all his Majesties Courts of Justice, a matter to them that have orderly read and well observed our Books, and Authorities of Law, of greater labour than difficulty; and yet would the Work greatly tend to the Honour of the Law, and the preventing of many Questions, Suits, and unnecessary Charges and Delays.
Leonard Lovie’s Case.X. Leonard Lovie’s Case is principally grounded upon the Statutes of 32 H. 8. cap. 1. and 34 Hen. 8. cap. 5. of Wills: which Statutes might seem to be made ad extorquenda juris-prudentum ingenia,23 so many and such intricate and knotty Questions have grown out of those Roots, and yet adding this last Case to the former Cases Reported by me for Exposition of those Statutes, to Butler and Bakers, in the third Part of my Reports, fo. 27. Sir George Cursons Case in the sixth Part, fo. 75. Sir Richard Pexals Case in the eightth Part 83. Mights Case ibidem 163. Vigil Parkers ibidem 173, &c. I am perswaded, that if not all, yet the principal scruples and doubts upon those Statutes, are for the general quiet of the whole Realm cleared and resolved. And yet Men of advised and setled Judgments will in their perfect Health provide for their Wives and Children, and by sound advice of Learned Counsel, settle their Estates by Conveyance in their Life-time, which may, if they will, be revocable at their pleasure, and not to leave it to stand wholly upon their last Will, which many times is made when they lye on their Death-Beds (and few Men pinched with the Messengers of Death, have a disposing Memory) sometimes in hast, and commonly by slender Advice, and is subject to so many Questions upon concealed Tenures in Capite,24 and other Tenures by Knights Service (in this Eagle-Eyed World) former Conveyances, and other matters of fact, as in effect they do for want of due information and instruction, superare jurisprudentum artem.25 And it is some blemish or touch to a Man well esteemed for hiswisdom and discretion all his Life; to leave a troubled Estate behind him, amongst his Wife, Children or Kindred after his death. A competent Estate to Wife, Children or Kindred in certainty and quiet, is far better than a greater, accompanied with Questions and Troubles. But hereof I have given also a light touch in the end of Butler and Bakers Case before mentioned; and therefore having given this Admonition, I will here pass over to the next Case.
Dr. Leifield’s Case.XI. Doctor Leifield’s Case, wherein the Reason of Law is opened, wherefore Charters and Deeds pleaded, ought to be shewed forth in Court, and a Caveat given how dangerous it is in Evidence to a Jury to prove Deeds and Writings by Witnesses without shewing forth; for by that means Deeds that be razed, interlined, or otherwise adulterated, or utterly insufficient for want of legal Words, or revocable and void against Fermors and Purchasers, have by concealing and proving the effect of them by disposition of unlearned Men, for want of good direction passed for good and authentical: And afterwards the matter coming in question again, and the Court directing upon examination of the Case, that the Deed ought to be shewed, upon sight thereof the insufficiency appeared, and to the Right prevailed; which I have known both in the Court of Common Pleas, amongst others, Mich. 5 Regis Jacobi, between Small and Blackledge, and in the Court of Starr-Chamber in the Case between Green and Eyer, and sometime in my Circuit since I was called to be a Judge.
Seymor’s Case.XII. Edward Seymor’s Case, concerning Warranties, a cunning kind of Learning (I assure you) and very necessary for the Purchasor: For it armeth him not only with a Sword by Voucher to get the Victory of Recompence by Recovery in Value, but with a Shield to defend a Mans Freehold and Inheritance by way of Rebutter;26 which Title of the Law is in mine Opinion excellently curious, and curiously excellent. And yet when you have read this Case, you will concur with me, that it was more weighty than difficult.
Beaufage’s Case.XIII. Then cometh in Beaufage’s Case, as well for the Safety of Sheriffs and their Officers and Ministers, as for avoiding of Extortion Crimen Expilationis27 which in Holy Writ, in that Imprecation against Gods Enemies, is called a cosening Sin, Let the Extortioner consume that he hath, and let the Stranger spoil his Labour,28 Wherein you shall find the Statute of 23 Hen. 6. c. 10. made for avoiding of Extortion, Perjury and Oppressing, which are for the most part linked together, very well and justaly expounded.
Denbawd’s Case.XIV. Next followeth Denbawd’s Case, for the just and due granting of Tales de Circumstantibus29 at the Assises for the better expedition of Trials; wherein as well the Sheriffs and their Ministers, as the Parties, their Attornies and followers are to be warned, that by no Practice or Confederacy, directly or indirectly, they procure not partial and affected Freeholders to stand in View, or by any shift to be packed on the Tales, whereby Truth and Justice may be subverted, and the necessary Act of 35 Hen. 8. c. 6. sinisterly abused, for that is an high Offence, and to be punished by a grievous Fine, Imprisonment and other Exemplary Punishment.
Lofield versus Clun.XV, XX. Lofield and Clun’s Case, touching Reservation of Rents upon Leases for years, &c, and how the same shall be confirned, necessary to be known of all Men, because in effect it concerneth all.
Legate’s Case.XVI. Then followeth Arthur Legate’s Case, against the robbing of Church and Common-Wealth, of the Crown and of the Country, by colour ofpestilent Patents of theevish Concealments.
Pilfold versus Cheyney.XVII, XVIII. After that Pilfold and Cheyney’s Case, concerning the true and legal manner of the assessing and enquiring of damages, &c. a necessary kind of Learning, for that many Errors, the Causes of Expence and Delay have been therein often committed.
Mayor de Linn’s Case.XIX. Next cometh the Case of the Mayor and Burgesses of King’s Linn in the County of Norfolk, wherein is well discussed what shall be deemed in Law the true name of the Corporation in substance, to the end that Bonds, Covenants, Leases, Grants or Conveyances be not in respect of too much Niceness and Curiosity therein against all Honesty and just Dealing, impeached and overthrown. And to say the truth, I find not in any of our Books from the beginning of the Reign of Edw. 3. until the Reign of Edw. 6. that any Bond, Lease, Grant or Conveyance have been overthrown by Judgment, in respect of the misnaming of the Corporation, but after a Window was once opened, it is a wonder to consider what light hath been taken by Corporations both Spiritual and Temporal, by Questions and Suits in Law, to avoid their own Leases, Grants and Conveyances, to the hindrance of Multitudes, andundoing of many, under colour of misnaming themselves, it grieveth good Men to remember; Sed motos praestat componere fluctus.30 And this Case is reported for the surety and quiet as well of their Fermors31 and others claiming from them, as of themselves; for Estates, Covenants and other things made unto them, ut res magis valeat quam pereat.32
Osborn’s Case.XXI. Then have you Osborn’s Case; wherein is at large resolved where false or incongruous Latin, &c. shall abate, vitiate or make void Writs, Specialties, Charters, Deeds or Records, and where not.
Read versus Redman.XXII. Read and Redman’s Case; concerning Summons and Severance, wherein you shall find, when the death of the Party severed shall abate the Writ, and when not; and in some Cases where the death of one of the Plaintiffs, though he be not severed, shall not abate the Original Writ, &c.
R. Smith’s Case.XXIII. Richard Smith’s Case, in what case a Quare Impedit lyeth de medietate, &c. Ecclesiae.33
3 Cases sur Stat. de Sewers.XXIV, XXV, XXVI. Then shall you read certain Resolutions upon the Statutes and Commission of Sewers, a necessary kind of Learning to be known, but more necessary (I assure you) to be put in due Execution; and that by colour thereof a private be not privily intended, when the publique is openly pretended. And in those Cases is well discussed what the Commissioners of Sewers may justly and safely do by their Wisdoms and Discretions.
Scroop’s Case.XXVII. And lastly Scroop’s Case, touching a Point of Revocations, very necessary to be known, for that Revocations are grown so frequent; and the Resolution of this one Point may prevent many Controversies, that might have grown out of them, and that most commonly between Brethren and others near of Blood and Alliance.
If any do marvail, that seeing the Matter of every particular Case doth rest in a narrow room, and that my manner of Reporting is summary, relating the effect of all that was said of the one side by it self, and so likewise of the other, beginning ever with the Objections, and concluding with the Resolution and Judgment of the Court, (which I hold to be the best order of Relation) wherefore divers of these Reports are drawn into so great a length; the Cause is apparent, though I allow not of it, that the Questions or Objections moved at the Bar, and the Arguments drawn from Books, Cases and other Authorities in Law be so many, and to say the truth, many Questions are raised rather out of the weight of the Matter, than the difficulty of the Case: For I never saw any Case of great Value proceed quietly without many Exceptions in Arrest of Judgment. The antient order of Arguments byour Serjeants and Apprentices of Law at the Barr is altogether altered. 1. They never cited any Book Case or Authority in particular as is holden in 40 Edw. 3. &c. But est tenus ou agree in nostre livres, ou est tenus ou adjudge in termes,34Nul livres cite devant ceux-jours. or such like, which Order yet remains in Moots at the Bar in the Inner Temple to this day. 2. Then was the Citing general, but always true in the particular; and now the Citing is particular, and the Matter many times mistaken in general. 3. In those days few Cases in Law were cited but very pithy and pertinent to the purpose, and those ever pincht most, and now in so long Arguments with such a Farrago of Authorities, it cannot be but there is much refuse, which ever doth weaken or lessen the weight of the Argument. This were easily holpen, if the Matter (which ever lieth in a narrow roomth) were first discerned, and then that every one that argueth at the Bar would either speak to the purpose, or else be short.
But seeing my desire is, and ever hath been, that the Counsel learned, and consequently the Parties might receive satisfaction, for which cause all the Counsel that have argued in the Case to be adjudged, ought to give diligent attendance and attention on those days when the Judges do argue, which are ever publickly long before appointed, and prefixed on certain days. I have for that purpose (the pains being mine own, and the Matter not without some fruit) in the Cases of greatest consequence made the larger Report, comprehending the effect of all that was objected and resolved; and yet he may be a good Miner that findeth and followeth the main Veins, thoughhediscovereth not the small and unvaluable Fillets, for there peradventure materiamsuperabit opus.35 This only I will add as a Caveat to all the Professors of the Law, that seeing their Arguments should tend for the finding out of the true Judgment of Law, for the better execution of Justice, that therein they commit not manifest Injustice; for I am of Opinion that he that wresteth or misapplieth any Text, Book or Authority of the Law against his proper and genuine Sense, yea though it be to confirm a Truth, doth against distributive Justice, which is to give to every one his own. And let not those that heard the Arguments themselves uttered viva voce,36 with the Countenance and Gesture of living Men in the seat of Justice in open Court, fear that when they shall read them privately in a dead Letter, it will want much of the former grace: For though I confess that habet nescio quam energiam viva vox,37 yet when they shall read the effect of all that was spoken at large at several times by several persons, at the Bench and at the Bar by either part, of many and divers Matterscollected and united together, and reduced ad diem38 concerning every particular point, it will case them of much labour, and conduce much to the fetling of their Judgment, and that, if I be not deceived, not without a Students delight.
And for that I am intreated to shew as well the times when the Register, the Mirror of Justices, Glanvil, Briton, Fleta, the Tales or Novae Narrationes, Old Natura Brevium, Littleton and other Books of the Laws now extant were published, and where the Authors themselves appear not in those Books, who were the Authors of the same, as also the Antiquity of Serjeants at Law: For their satisfaction they shall understand, that first the Register, which containeth the Original Writs of the Common Law, is the ancientest Book of the Law; for the Book-Case and Record of 26 Edw. 3. lib. Aff. pl. 24. proveth directly, that Original Writs of Assise and other Original Writs had been time out of mind of Man (that is, the beginning whereof cannot be known either by Remembrance, Reading or Record) long before the Conquest, whereof I give here but a light touch, for that I have cited the same more at large in the Preface to the 3d Part of my Commentaries,39 and I avoid as much as I can, unpleasing Iterations: And this Book is called Registrum Cancellariae40 in the Statute of Westm. 2. cap. 24. because that the Chancery is tanquaem officina Justitiae,41 all Original Writs issuing out of that Court: Now, for the Authority thereof, Bracton, lib. 5. Tract’ de Exceptionibus, cap. 17. fol. 413. faith thus, Breve quidem cum sit formatum ad similitudinem regulae Juris, quia breviter & paucis verbis intentionem proferentis exponit & explanat, sicut regula Juris rem quae est, breviter enarrat, &c. Sunt quaedam formata sub certis casibus de cursu & de Communi Concilio totius. Regni concessa & approbata, quae quidem nullatenus mutari poterint absque consensu & voluntate eorum.42 Now joyning both these Authorities together a Man may safely conclude, that this Book is most ancient and of greatest Authority. I confess, that by force of Acts of Parliament in succeeding Ages, divers other Writs original in Cases newly happening are (as appeareth in the same) added thereunto. And of these ancient Writs, I will say (as Sir Th. Smith a Secretary of State said) that all the Secretaries in Christendom may learn of them to express much Matter in few and significant Words.
For the Mirror of Justices, Speculum Justiciar’,43 the most of it was written long before the Conquest, as by the same appeareth, and yet many things added thereunto by Horn a learned and discreet Man (as it is supposed) in the Reign of Edw. 1.
Concerning Glanvil, he wrote in the Reign of Henry the secondasappeareth by this Book; and what he was it appeareth in my Preface to my Eighth Book, a History in my Opinion worthy the reading. And about the same time was the Treatise called the Old Tenures made.
Bracton, as elsewhere I have noted, wrote about the end of the Reign of Henry the third.
Briton composed a learned Work and published the same in 5 Edw. I. as appeareth in 35 H. 6. by the Commandment of Edward the first (our Justinian) the Tenor whereof runneth in the Kings Name, as if it had been written by him, answerable to Justinians Institutes, which Justinian assumeth to himself, although it were composed by others. This John Briton was Bishop of Hereford, and of great and profound Judgment in the Common Laws, an excellent Ornament to his Profession; and a Safety and a Solace tohimself, Vide Stamford Praerog. R. 6. & 21.
Fleta is a Work well written by some learned Lawyer, who being committed to the Prison of the Fleet, had leasure to compile it there, and therefore stiled his Book by the name of the Fleet, Fleta, and concealed his own Name, as in the Preface to his Work appeareth. The Author thereof is unknown, but it apeareth in his Book that he lived in the Reigns of King Ed. 2. and Ed. 3. Vide lib. 1. cap. 20. §. Qui ceperunt, lib. 2. cap. 66. § Item quod nullus.44 But of the certain time when it was first published (for peradventure it had Additions afterwards) there is some Question made: But in seeking after this, I find that this Book took the Name of the Prison of the Fleet, and that the Fleet took the Name of the River running by it called the Fleet.
The Book entituled Novae Narationes, vouched and allowed in 39 H. 6. 30. by learned Prisot and his Companions, Justices of the Court of Common Pleas, by the Name of the Tales, was published about the beginning of the Reign of King Edw. 3. And Old Natura Brevium afterwards in the Reign of the same King, for f. 100. b. the Statute of 5 Edw. 3.c. 12. is called le novel statute: but since, Additions have been made thereunto. Of this Book Sir Anthony Fitzherbert in his Proem to his Natura Brevium faith as followeth, Et auxy pur cel intent & purpose, fuit compose per un sage & discreet home un liure appel Natura Brevium.45
Fortescue de laudibus legum Angliae46 this Book was written in the Reign of King H. 6. in commendation of the Laws of England, containing withal much excellent Matter worthy the reading. He wrote also a Book in defence of the Title of King Henry the sixth his Sovereign Lord and Master, to the Crown of England; but after out of Truth and Conscience retracted the same, both which I have; wherein he deserved singular commendation, in that he was not amongst the number of those qui suos amassent Errores,47 but yielded to Truth when he found it. This Sir John Fortescue was Lord Chief Justice of England, and afterwards Lord Chancellor of England, and his Posterity remain in great and good account to this day.
Stathom’s Abridgment, first published in the Reign of King Henry the sixth by Stathom a learned Lawyer of that time: And the Abridgment of the Book of the Assizes, published also about the same time, but the Author thereof is unknown.
Littleton’s Tenures, a Book of sound and exquisite Learning, comprehending much of the Marrow of the Common Law, written and published by Thomas Littleton a grave and learned Judge of the Court of Common Pleas, sometimes of the Inner Temple, wherein he had great furtherance by Sir John Prisot Lord Chief Justice of the Court of Common Pleas a famous and expert Lawyer, and other the Sages of the Law who flourished in those days. Of this Book Hotomon a Civilian and Canonist in his Commentary De Verbis Feudalibus, Verbo Feudum,48 giveth his Censure, with what Charity or Discretion, judge learned Reader: Stephanus Pasaverinus excellenti vir ingenio, &c. Libellum mihi Anglicanum, Littletonum dedit, quo feudorum Anglicanorum jura exponuntur, ita incondite, absurde & inconcinne scriptum, ut facile apparet verum esse quod Polidorus Virgilius in Anglicana Historia scribit, stultitiam in eo libro cum malitia & calumniandi studio certare.49 Of Hottoman and his Author I may justly say, and will say no more, volentes esse legis doctores, non intelligentes neque quae loquuntur, neque de quibus affirmeant,50 and therefore let us leave them among the number of those qui vituperant quae ignorant.51 It is a desperate and dangerous gerous Matter for Civilians and Canonists (I speak what I know, and not without just cause) to write either of the Common Laws of England which they profess not, or against them which they know not. Sure I am, it were a ridiculous Attempt and Enterprise in me (that because I confess I have read some little part of the Civil and Canon Laws, and that with some good assistance and help) by and by to write either of them or against them. But their Pages are so full of palpable Errors and gross mistakings, as these new Authors are out of our Charity pitied, and their Books out of our Judgment cast away unanswered. Alas, our Books of Law seem to them to be dark and obscure; but no wise Man will impute it to the Laws, but to their Ignorance, who by their sole and superficial Reading of them cannot understandthedepth of them. I will not sharpen the Neb of my Pen against them, for that I pity the persons, and wish they had more Discretion, for that I honour their Profession. And for Littleton’s Tenures, I affirm and will maintain it against all Opposites whatsoever, that it is a Work of as absolute perfection in its kind, and as free from Error, as any Book that I have known to be written of any Human Learning. And the Posterity of this Sage of the Law (unto whom he is a great Ornament) doth flourish unto this day, of whom a Man of great excellency in his Profession hath justly said, that he was a famous Lawyer, &c. to whose Treaty of Tenures saith he, the Students of the Common Laws are no less beholding than the Civilians to Justinian’s Institutes.
Fitzherbert’s Abridgment was painfully and elaborately collected and published in 11 H. 8. by Fitzherbert then Serjeant at Law. And he wrote also another Book called his Natura Brevium, an exact Work exquisitely penned, and published in 26 H. 8. when he was Sir Anthony Fitzherbert Knight, one of the Judges of the Court of Common Pleas. About the same time he wrote his Treatise of Justices of the Peace; wherewith the Judges (as I have seen it reported) found fault, for that he therein affirmed that Justices of Peace having by their Commission Authority to hear and determine Felonies, &c. could not hear and determine Murder, which (amongst others) they clearly overruled, that Justices of Peace lawfully might do.
Doctor and Student, a Book written in 23 Hen. 8. Dialogue-wise between a Doctor of Divinity and a Student of the Common Law, the Authors Name was S. Germin, a discreet Man and well read, I assure you, both in the Common Law, and in the Civil and Canon Laws also.
A Book intituled a Treatise made by Divines and other learned in the Laws of the Realm, concerning the Power of the Clergy, and the Laws of the Realm, published in time of King Henry the eighth and after the six and twentieth year of his Reign; for therein the Act of Parliament made in that year is mentioned, which Book I have.
The small Treatises concerning the manner of keeping Court Baron and Leet, &c. Modus tenendi Hundredum, &c. Returna Brevium, Charta feodi, &c. and Ordinances for Fees in the Exchequer were all published in the end of the Reign of King Henry the eighth.
The Book called the Diversity of Courts, was compiled after the 21st year of H. 8. for the Statute of 21 H. 8. for Restitution of Goods upon Inditement, &c. is recited, fol. 117. a.
Stamford: This Book containeth two parts, one of the Pleas of the Crown, the other of a lesser Volume, of the Prerogative of the King; but the later was first published by Sir William Stamford Knight, sometimes of Grays Inn, a Man excellently learned in the Common Laws; whose Posterity prosper at this day.
Parkins a little Treatise of certain Titles of the Common Laws, wittily and learnedly composed and published in the Reign of King Edward 6. by John Parkins an Utterbarister of the Inner Temple.
I cannot pretermit the Abridgment of the Statutes, and the Table, to Fitzherberts Great Abridgment, and the Book of Entries, profitably and painfully (I assure you) gathered and published in the Reign of the late Queen Mary, but especially the first two, tending very much to the case and furtherance of the Professors of the Law, collected by William Rastal a Reverend Judge of the Court of Common Pleas, and of great Industry; many things being since added both to his Abridgment of Statutes and to the Book of Entries, who originally was also the Author of the Book called the Terms of the Law.
The Lord Brook’s Abridgment, first published in the 16th year of Queen Eliz. This was gathered by Sir Robert Brook Knight, Chief Justice of the Court of Common Pleas, for his private use, and was published long after his decease, a worthy and painful work, and an excellent Repertory or Table for the Year Books of the Law: Sed satius est petere Fontes quam sectari Rivulos.52
Plowden’s Commentaries, consisting of two parts, both of them learnedly and curiously polished, and published by himself, the one in the 13th year of Queen Eliz. and the other in the 21st year of the same Queen, Works (as they well deserve) with all the Professors of the Laws of high account. The Author was an ancient Apprentice of the Law, of the Middle Temple, of great Gravity, Knowledge Integrity.
The Lord Dyer’s Book, containing the fruitful and summary Collections of that Reverend Father of the Law Sir James Dyer Knight, late Chief Justice of the Court of Common Pleas, for his private use and remembrance, and never intended by him in this form to be made publique, but were as he left them imprinted after his decease in the 25th year of Queen Eliz. the very Original whereof, written with his own Hand, I have.
Lastly, Master Lambards Collection of the Office of Justices of the Peace, methodically written, was published towards the end of the Reign of Queen Elizabeth.
Concerning the antiquity of Serjeants at Law, it is evident by the Book of the Mirror of Justices, Justices, lib. 2. cap. des Loiers, which treateth of the Laws of this Realm and the Ministers thereof long before the Conquest, that Serjeants at Law were of ancient times called Narratores, Countors or Counteors, because the Count or Declaration comprehended the substance of the Original Writ, and the very Foundation of the Suit, of which part, as of the worthiest, they took their denomination, and is all one in effect, with that which in the Civil Law is called Libellus; and they lost not that Name in the Reign of King E. 1. as it apeareth by the Statute of W. 1. c. 29. ann. 3 Edw. 1. for there he is called Serjeant Countor, Serviens Narrator: And by the Statute of Articuli super Chartas, cap. 11. anno 28 E. 1. Nest my a intender que home ne poit aver counsel des countors, & des sages gents pur lour donant;53 where under this word [Countors] Serjeants at Law are included, and until this day, when any proceeds Serjeant, he doth count in some real Action at the Bar of the Court of Common Pleas; and under these words (Sages gents) are included Apprentices at Law: But since the Reign of E. 1. they have always been called Servientes ad legem54 for their good Service to the Common-wealth by their sound Advice in Law; and as in ancient time, they that preserved and kept the Peace were called Servientes pacis or ad pacem,55 so these Men are called Servientes legis or ad legem or in legibus, &c.56 And in that ancient Treatise of the Mirror of Justices ubi supra, Counteurs57 are described to be Serjeants skilful in Law of the Realm, which serve the common People to pronounce and defend their Actions in Judgment for their Fee, whose duty is there excellently described. This proveth the great Antiquity of the Serjeants at Law. Inter placita de Parliament’ tent’ apud Ashering ann. 19 Edw. 1.58 in that great Case of Thomas de Weylond it is said, Servientes in legibus & consuetudinibus Angliae experti, &c.59 and in all our Books of years and terms from the beginning there is mention made of them; as in 1 Edw. 3. 22. Serjeant le Roy, &c. and in 1 Edw.3.s. 16. there is mention made of an Apprentice; and he is called an Apprentice of the Law, of this word (apprender60 ) for that he ought to be apprise in la ley,61 and hath manifested the same by open reading upon some Statute in that Inn of Court whereof he is Fellow, and is next in degree under a Serjeant. And this Appellation is very ancient, and so is proved Rotulo Paliamenti in Crastino Epiphaniae, anno 20. Edw. 1. Rot. 5. in dorso,62 The Act saith, De Atturnatis & Apprenticiis, Dominus Rex injuxit Johanni de Mettingham & sociis suis, quod ipsi per eorum discretionem provideant & ordinent certum numerum de quolibet comitatu, &c.63 And so is farther provided by a Record, inter communia Placita tent’ in Hustingo London’ die Lunae in Festo Sancti Clementiae Papae anno Reg. Edw. 3. post Conquestum 23. viz. Die Jovis proxime ante festum Sancti Gregorii Papae anno Domini 1348. Ego Johannes Tavie Armiger lego animam meam Deo, &c. Item lego omnia tenementa mea cum omnibus pertinentiis quae habeo in parte Australi in Parochia Sancti Andreae, &c. Aliciae Uxori meae ad totum terminum vitae suae, Et quod post decessum praedictae Aliciae totutum illud Hospitium, in quo Apprenticii legis habitare solebant, per Executores meos si superstites fuerint, &c. vendatur, & quod de pecunia inde percepta unus Capellanus idoneus pro anima mea, &c. celebrand’, dummodo pecunia illa perseveraverit, inveniatur. Item lego totum illud tenementum in quo inhabito cum tribus shopis post decessum ipsius Aliciae ad fabricam Ecclesiae Sancti Andreae.64 Out of this Record I observe three things; first, for the Antiquity of Apprentices of the Law, That the House of Chancery in Holborn now called Tavies Inn, had been of ancient time, before the 23rd year of Edw. 3., (which is about 264 years past) an House of Court, wherein the Apprentices of the Law were wont to inhabite: 2. For the Antiquity and true Name of that House of Chancery, rightly called Tavies Inn. 3. That upon this Will the Case in 13 R. 2. Tit. Devise Fitzh. 27. was adjudged, That the Remainder of the House devised to the said Alice for life, belonged to the Parson of the Church of Holborn and his Sucessors. And in 39 Edw.3.f. 47. b. in a Quod ei deforceat65Ingleby, Serjeant, of Counsel with the Tenant took this Exception; This Writ (saith he) is founded upon a Record precedent, and therefore we pray, that the Demandant may put the Record (whereupon this Writ dependeth) in certain, and in Case of Attaint and scire facias66 (which depend upon Records) the Tenant shall have Oyer of the Record: Wilby and Shipwith, This was never any Exception in this place, but we have heard it oftentimes amongst the Apprentices in Houses of Court. And concerning Apprentices of Law thus much shall suffice.
The manner of the Creation of Serjeants is also most ancient; for it is by Writ, which is commonly found in very ancient Registers, and continued to this day, in this form, Rex, &c. Willielmo Herle Salutem; quia de advisamento consilii nostri ordinavimus vos ad statum & gradum Servientis ad legem, in quindena Sancti Michaelis proxim’ futur, suscipiend’, Vobis mandamus firmiter injungentes, quod vos ad statum & gradum praedictum ad diem illum in forma praedicta suscipiend’ ordinetis & praeparetis: & hoc sub poena mille librarum. Teste meipso, &c.67 wherein for the dignity of him, it is to be observed, 1. That he is called by the King by advice of his Council in that behalf, 2. By the Kings Writ, 3. The Writ is directed to him in the plural number, vobis, a special mark of Dignity: 4. That he is called ad statum & gradum Servientis ad legem:68 And in the Act of Parliament of 8 H. 6. cap. 10. of the Serjeant it is said, When he taketh the same state upon him. And in the Act of Parliament of 8 E. 4. cap. 2. al creation des Serjeants del Ley, &c.69 and Creation is ever applied to Dignity. But it is true, that the said Writ is not put into the printed Register, no more than Writs to call any to be a Baron of the Realm or of higher Dignity, for that those Writs originally are only de gratia Regis;70 and such as are published in the printed Register are originally de Jure Legis.71 Of the Solemnity of his Call, viz. his Hood, Robes, Coif, and other significant Ornaments, of the great and sumptuous Feast they make, of the Rings of Gold they give, of their Attendants, and other great and honourable Ceremonies, I purpose not at this time (being not pertinent to the Question I have in hand) to write any thing at all.
Their ancient Reputation is (I assure my self) the better continued, because they without the least alteration continue the ancient Habits and Ornaments belonging to their state and degree; for most commonly the ancient Reverence of any Profession vanisheth away with change of the ancient Habit, albeit the newer be more costly, courtly and curious. And in the Act of Parliament of 24 H. 8. cap. 13. he (having both statum & gradum72 ) hath the Precedency of divers that sit on the high Bench in a Court of great Eminency in Westminster-Hall: But seing there is no Remedy given by Law for Precedency, I (dealing only with matters in Law) mean not to meddle with it: And albeit I have learned more of the Antiquity of this State and Degree in the School of venerable
Antiquity, yet hereof thus much for this time shall suffice; Et valeant qui contabulatis mendaciis antiquitatem superstruunt.73
Of these Serjeants, as of the Seminary of Justice, are chosen Judges; for none can be a Judge, either of the Court of Kings Bench, or of the Common Pleas, or Chief Baron of the Exchequer, unless he be a Serjeant; neither can he be of either of the Serjeants Inns, unless he hath been a Serjeant at Law, for it is not called Judges or Justices Inn, but Serjeants Inn; for I have known Barons of the Exchequer (that were not of the Coif, and yet had judicial places and voices) remain in the Houses of Court whereof they were Fellows, and wore the Habit of Apprentices of the Law.
But I perswade my self you desire to read the Cases whereof I have given you a taste, & tempus est Veritatis & Justitiae sancta adire penetralia:74 And therefore here will take my leave of the good Student, to whom I wish with his increase of reading more and more a delight in this Study, an excellent mean to attain unto augmentation of venerable knowledge (which is one of the ends of my labours) not knowing what better thing to desire for him; and conclude with this Distichon and direction,
The Case of Sutton’s Hospital.
(1612) Michaelmas Term, 10 James I
In the Court of the King’s Bench, before all the Judges of England. First Published in the Reports, volume 10, page 23a.*
Ed.: Parliament passed an act to enable Thomas Sutton to establish a hospital and school in the then-defunct foundation of Charterhouse School. James I granted a license to Sutton to found a hospital for the relief of the needy and a school for the maintenance of poor scholars, appointing Sutton as head of the hospital for life and giving the governors of the school and their successors the license to appoint the head after his death. Sutton purchased the old buildings of Charterhouse in London and established there the Hospital of King James and appointed a master to serve or be dismissed at Sutton’s will, (and would be re-established in 1872 in Godalming, Surrey). Richard Sutton and John Lawe were arrested for trespassing on the grounds. They raised many objections to the existence of the foundation in defense. The King’s Bench rejected their concerns, in the process inventorying many of the obligations in chartering a corporation, or at least a charitable corporation, making this opinion one of the foundations of the law of corporations. Coke lists the governors established in the charter of the school and hospital, who include not only himself but most of the leadingmembers of the bench.
In the King’s Bench Between Simon Baxter, Plaintiff, and Richard Sutton and John Law, Defendants, in an action for trespass, de eo quod ipsi1 30 May 10 Jac. a Capital Messuage called the Charter-house in the parish of St. Sepulchre, in the County of Middlesex, freger’ & intraver’2 upon not guilty pleaded. The whole special matter was found (which you may see at length, Mich. 10. Jacobi Rot. 574, in the Kings Bench). And the same was adjorned out of the Court of the King’s Bench by the Judges of the same Court, into the Exchequer Chamber; and was there argued at the Bar by John Walter [of the Inner Temple] Yelverton of Gray’s Inn, and by Bacon Solicitor General for the Plaintiff, and for the defendant by Coventry of the Inner Temple, Hutton, Serjeant at Law, and by Hobart, Attorney General. And the Plaintiff’s Counsel argued very strongly in general: 1. That there was not any Incorporation created by the King’s Letters Patents, dated 22 Junii 9 Jac. Regis. 2. Admitting the incorporation was good; yet there was not any Foundation made by Sutton according to the authority given to him. 3. That the bargain and sale made by Sutton, bearing date 1 Nov. 9 Jac. was utterly void, and by consequence all the said possessions descendible to the Plaintiff. And in the argument of this Case, these points upon these grounds were moved:
1. Objection Postea 24.b.1. It is Objected that by the Act of Parliament, 9 Feb. 7 Jac. Reg. mentioned in the Record, An Hospital was legally erected and Incorporated, at Hallingbury in the County of Essex; and all the said Manors given to it; and by consequence the said Corporation made after the said |[23 b] Act by the Letters Patents 22 Junii 9 Jac. Reg. was utterly void. Note reader, the said Act cannot give the said House called the Charter-house, for Sutton purchased it afterwards, viz. 9 May 9 Jac. Reg. as appeareth by the record.
2. Objection Postea 25.b.2. It was Objected that no Hospital was founded by Sutton, and therefore the Incorporation failed; because that Sutton had the King’s Licence to Found, Erect and establish an Hospital, which was an act precedent to be performed by Sutton before the Incorporation, which he hath not done; and so he hath not pursued his Licence; which Licence the King might have countermanded; and which was countermanded in Law by the death of Sutton.
3. Objection Postea 28.b.3. That the King by his Charter cannot name the House and Inheritance of Sutton to be an Hospital, for that would-be to give a name to an Hospital in alieno solo.3
4. Objection Postea 29.a.4. The place of every Corporation ought to be certain, for without a certain place there cannot be any Incorporation; but here the Licence to Sutton is to Found an Hospital “at or in the Charter house;” so that he may found it in all or any part of the same house, And therefore till Sutton hath founded it certain, there is not any certainty of the place, and by consequence no Corporation. To which was added, That a place by a known name is not sufficient to support the name of an Incorporation, but the same ought to be described by metes and bounds; And divers precedents were cited and shewed, where the Scite of Hospitals, Priories, &c. were so particularly described.
5. Objection Postea 31.b.5. The King by his Letters Patents hath intended to make a present Incorporation, and so his words expressly import. 1. “From henceforth, &c.” And yet no incorporation can be till Sutton hath named a Master, And the Letters Patents bear date 22 Junii 9 Jac. Reg, And the writing of Nomination 30 Octob. Anno 9, And so the Letters Patents are repugnant in themselves and void.
6. Objection Postea 32.a.6. Until there be an actual Hospital and poor in it, there cannot be Governours of them, for Governours ought not to be idle, or as Cyphers in Algorisme; for Governours and Government, are relativa, quae sunt simul tempore,4 and as well in his Will as in other Instruments, he has called it many times his intended Hospital.
7. Objection Postea 33.a.7. To every Corporation a Foundation is requisite; and here is not any Foundation made by Sutton. For first he ought to have per verba praescripta & in terminis terminantibus5 |[24 a] Founded, Erected, and established the said House of Charter-house an Hospital, &c. And the same was likened to Cases of Exchange, frankalmoigne Dedi, warrantizo,6 which are Frank-marriage; quae sunt verba legalia & incompatibilia, &c.7 And divers precedents were shewed to the Justices of building of Hospitals, Schools, &c. wherein the said words of fundo, erigo, &c.8 were used. Secondly, before such lawful foundation made by Sutton, a Stranger could not have given any land or other thing to the Governours. Thirdly, without such Foundation, in time to come it shall not be known who should be the Founder, whereupon confusion would follow.
8. Objection Postea 34.a.8. The nomination of the Master made by Sutton is void for two reasons; one, that he was named to Master but at will, where he ought to be named for life, in as much as he is to have a free-hold in the Land. Also there ought to be at least an actual Hospital Founded by Sutton according to his Licence, before he could nominate a Master of it; For otherwise it shall be a Mathematical or Utopical Hospital.
9. Objection Postea 34.a.9. The said bargain and sale made by Sutton to the Governours was void for three causes. 1. That the money which was the consideration thereof was paid by the private persons of the Governours, and therefore the bargain and sale of the Manors &c. cannot enure to them in their politick capacity. 2. The Habendum9 is to the Governours upon trust and confidence; and a body Politick aggregate of many cannot stand seised in trust and confidence to the use of another. 3. Because no Hospital was founded by Sutton according to his Licence; And for all the other Objections made against the Foundation and Incorporation, the said bargain and sale was void, and by consequence all the said Manors descended to the Plaintiff as Cousin and heir to Sutton.
10. Objection. Postea 34.a.10. That no Hospital was Incorporated by the said Letters Patents, and therefore it was objected, That the King could Incorporate them by the name of Governours, &c. of the Hospital, but of an Hospital in Law, or a Legal Hospital, as it was called; For the Governours cannot plead that they are seised in jure Hospitalis sui,10 because in Law there was not any Hospital.
Which brief Report I have made of these Objections, because I think them, or the greater part of them were not worthy to be moved at the Bar, nor remembered at the Bench. And that this Case was by the Justices adjourned into the Exchequer Chamber |[24 b] more for the weight of the value than for the difficulty of the Law in the case. And the entire Record, as appeareth by the Exceptions, ought to be the Case; which was openly argued in the Exchequer Chamber by all the Judges of England and Barons of the Exchequer, except the Chief Justice of the King’s Bench, who was then sick,The Judges who argued in the case. Sir Robert Houghton, Sir Augustine Nicholls, Sir John Dodderidge, Sir Humfrey Winch, Sir Edward Bromly, Sir John Croke, Sir James Altham, Sir George Snigge, Sir Peter Warburton, Sir Lawrence Tanfield Chief Baron, and Sir Edward Coke, Chief Justice of the Common Pleas. And it was Resolved by them in their arguments (except by Baron Snigge and Justice Croke) that judgment should be given against the Plaintiff, Et quia rectum est judex sui & obliqui.11Maxim. A right linemaketh discovery not only of that which is right, but of that which is wrong and crooked; and the confirmation of the right and truth is the confutation of error and falshood. I will report the effect of the reasons and causes which affirme and confirme the Resolutions of the Judges, which are of so great authority, perspicuity and gravity, that the Objections need not have any particular answer. And yet for the satisfaction of all men, every one of them shall be particularly answered. And because that this Case doth chiefly depend upon the Letters Patents; And the best Exposition of the King’s Charter is upon the consideration of the whole Charter, to expound the Charter by the Charter itself, verba cartae regiae aeque portant suam expositionem;12 and the King’s Letters Patents in this case are viscera causae,Viscera causae.& expositio quae ex visceribus causae nascitur, est aptissima & fortissima in lege.13 All the parts of the Letters Patents were considered, and every material part thereof explained according to the true natural sense, which is the best method, upon the consideration of many others, for the more clear Report of this Case.
Part of the King’s Charter Ans. to 1 Obj. Ante 23.a.The first part of the said Charter viz doth contain a short recital of two things, 1. of the title of the Act of 9 Feb. anno. 9. viz “An Act to confirm and enable the erection and establishment of an Hospital and Free Grammar School, given and intended to be given by Thomas Sutton, Esquire.” which title proveth that no Hospital was founded by the Act itself; but the scope of the Act was to enable Sutton to erect and establish an Hospital, &c. and therefore the title saith, “intended to be given and performed by Thomas Sutton, Esquire;” And also the same appeareth by divers parts of the body of the Act, which are all in futuro & nihil in praesenti.14 |[25 a] Be it enacted, That in the Town of “Halingbury, &c. there may be builded one meet house for abiding of poor people and Scholars, &c.” which are words de futuro15 and it is not certain in what part of the Town the House shall be built. 2. “And that the same shall and may be called and named the Hospital of King James;” which are words also de futuro. 3. “And that the Lord Arch-Bishop of Canterbury, &c. shall and may be Governour, &c. 4. And that the same Governours, &c. shall for ever hereafter stand and be incorporated:” which words ought to be intended to take effect after the erection of the Hospital, &c. in a certain place, &c. And so the construction is in futuro, which well appeareth with the future words following, and may have perpetual succession. 5. “And may for ever hereafter, have, hold, and enjoy, Lordships, Manors, &c. without Licence of Alienation or Licence of Mortmain.” By which it appeareth, that this clause is not in effect, but a Licence to give Manors, Lands, &c. holden in Capite16 without other Licence of Alienation, and also without other Licence of Mortmain. But this clause was superfluous and impertinent if the Land should pass by the Act itself, for then no Licence in those cases was requisite. And without question if it were admitted that there was a Corporation, yet no Lands are given to them by those words, de futuro. Also although the said Lands were given them, yet the King by his Letters Patent cannot create and incorporate an Hospital in the Charter-house, which was purchased after the Act, and the Action of Trespass in the case at Bar is for Trespass done in the Charter-house. But it was answered by all the Justices and Barons of the Exchequer (except Justice Croke) that the Act of 9. Jac. doth not Incorporate the Governours &c. but in futuro, which never took nor could now take effect; and by consequence no Land was or could be given to it. The 2d branch of the recital is of the purchase of the Charter-house after the Act, which, as it is there rehearesed, is more fit and commodious than Hallingbury to be converted into an Hospital.
The second branch of the Charter.In the second part Sutton is a suitor and petitioner to the King for four things: 1. “To give Licence to Found, Erect, and establish an Hospital house, &c. and Free Grammar-School, &c. at or in the Charter-house,” wherein hath been observed the incertainty of the suit, “at or in the Charter-house” or but of that: after. “2. Incorporate the Governors hereafter named;” so that Sutton himself doth name the Governours which the King doth Incorporate. 3. By such name of Incorporation |[25 b] as is hereafter mentioned to have capacity and ability, &c. by which also it appeareth that Sutton doth devise and prescribe the name of the Incorporation; and by all these three clauses it appeareth, That the suit of Sutton and his express consent was, that the Governours should be named of the said House called the Charter-house. 4. Sutton was suitor, “that the Governours, &c. might take in Mortmain for the better maintenance of the said Hospital, Free-school, Preacher,” &c.
The 3d part of the Charter.The third part of the Letters Patent containeth Grants and Acts made by the King in two manners, sc by way of Licence and by way of Grant; of the Licences some are requisite;The division of the Charter. some abundant and not requisite, and some requisite for the sustentation of the poor, &c. and not to the essence of the Corporation; and of the grants, some are in praesenti, and some in futuro, and of each of them some are of necessity, and some explanatory and not of necessity; and those which are of necessity, some are of necessity to the creation of this body politick, and some to the continuance and preservation of it. And into those branches the whole Letters Patents are divided, which shall be observed as they arise and have place in the same Letters Patents. But before all the Licences and Grants, the King doth prefix a preamble, sc. “The King affecting so good a work, of his Princely dispositionandcareforthefurtherance thereof, and that the same may take the better effect, &c.” (wherein appeareth the Honour, Charity, and pious disposition of the King) “giveth Licence to Thomas Sutton, his Heirs, Executors, Administrators, and Assigns, at all times hereafter at their will and pleasure to place, erect, found and establish at or in the said house called the Charter-house, one Hospital house, and place of abiding for the finding, sustentation, and relief of poor, aged, maimed, needy, or impotent people, &c. Also to erect, found, &c. one Free-School for the instruction, teaching and maintenance of poor Children or Scholars, &c. And to place and maintain a learned School-master and Usher to teach and instruct the said Children in Grammar. And also one godly and learned preacher, to Preach and teach the Word of God to all the said persons, poor people, and children, members and officers at or in the said house.” That in the first place doth contain the end of Sutton’s piety and charity:Answer to 2d objection Antea 23. for Sapiens incipit a fine, & quod primum est in intentione ultimum est in executione.17 And that was a grand motive to the King of his Royal authority to give him means, sc. by Creation of a capable body Politick by way of Incorporation, to have perpetual succession, to perfect and perpetuate so pious and charitable a work |[26 a] And that the Incorporation ought to precede the execution of this Licence, is evident by the words and coherence of the Letters Patents, sc. For this Licence is in futuro, sc. To Thomas Sutton, his Heirs, Executors, Administrators and Assigns, “at all times hereafter at their will and pleasure, &c.” so that it is future as well in persons, Heirs, Executors, &c. as in the thing to be done. But when he cometh to the clause of incorporation, he doth it per verba de praesenti tempore:18 “And the said persons and their Successors by the name, &c. We do by these presents for ever hereafter really and fully Incorporate, &c.” By which it followeth, that the Incorporation being present, and the execution of this part of the Licence future, the Incorporation ought of necessity precede the execution of the Licence. Then forasmuch as the principal foundation of the scruple was conceived upon these words, “to found, erect, and establish” the true Etymology and genuine sense of them was considered; and ex vi termini fundare, nihil aliud est quam fundamentum jacere seu ponere, &c.19 to lay the foundation of a building; and in this sense the Holy Ghost (which moved Sutton to this work of Piety) in the Scripture taketh it. And therefore in the 3 King. Chap. 6. verse 37. Fundata est domus anno primo, et Anno 11 perfecta fuit domus in omnia opere suo.20 And 3 King Chap. 16. Verse 34. Edificavit in diebus illis Hiel de Bethel Jerico in Abiram primitivo suo fun-davit, & in Segub novissimo suo posuit portas.21 By which it appeareth that to found, is to lay the foundation of a building, which is the first mechanical part of Architecture. Then when the foundation is laid, then cometh the erection of the House, as it is said by the son of Sirach 49. 15. Erexit nobis muros, & erexit domus nostras.22 And although that the foundation be well laid, and thereupon a building well erected, yet it ought to be well joyned and established, and therefore this word (establish) is added to make the building to have continuance. 2 Kings 13. Stabiliam thronum ejus;23 That is, I will make his throne to have perdurance and continuance. So that to Found, Erect, and establish, are opera laboris, & laboris architector’,24 and that appeareth by the words of the Charter itself, “The King affecting so good a work,” tam bonum opus:25 Also the subsequent words prove it also; “to found, erect, and establish,” what? “an Hospital-house.” So that it clearly appeareth, that the effect of this Licence is to make fit and to finish and furnish an Hospital-house for the habitation of the poor, &c. See after, Mich. 34 and 35 Eliz. the Case of the Hospital of Bridewell for the exposition of these words, fundo, erigo, & stabilio,26 which is a stronger case than this is. And this word (place) in the first place is to be intended, as hath been said, in the last place, scil. To place poor in it, |[26 b] to erect a Free-School for the instruction of youth, and for the maintenance of a Preacher. But how shall this holy and charitable intention (that the same may remain for ever) be produced to an end and effect? The Charter itself shewth it in effect in this manner: It is impossible to take in succession for ever without a capacity; and a capacity to take in succession cannot be without incorporation; and the incorporation cannot be created without the King; for this cause the Charter saith, “And for the maintenance and continuance of the said Hospital, &c. And that the same may take the better effect, That the said persons, &c. be one body Corporate and Politick, to have perpetual succession to endure for ever: We do by these presents for ever hereafter fully and really incorporate, &c. to have capacity and ability to take, &c.” Without this capacity the end cannot take effect for inhabitants of a Town, or other single persons (who have not capacity to take in succession but only to their singular heirs) have capacity to take an incorporation, and after their incorporation they have capacity to take in succession any lands, tenements, or hereditaments; unde sequitur,27 that the incorporation which giveth capacity ought to precede the giving of any lands, &c. Another licence is given to this new incorporation to take in Mortmain. This Licence is not of necessity, either of the essence of the incorporation, or of the continuance of it; but yet it is requisite for the establishing and maintenance of the end, scil. to have the poor sustained, and scholars instructed, &c. For they cannot be maintained without a Revenue, and they cannot take or keep the Revenue (as has been said) without a Licence in Mortmain; and therefore these two, scil. Incorporation and Licence in Mortmain ought to precede the donation. For words to Found, Erect, and establish an Hospital-house, cannot be extended to the Incorporation, for that belongeth only to the King, and that the King doth; Nor to any dotation, for as yet (as hath been said) there is not any capacity. Ergo28 it extendeth onely to the building and finishing of the said house to be a fit habitation for poor, &c. Sutton thinking and rethinking, that as well the incorporation as the Licence in Mortmain were in their several degrees requisite to bring his good and charitable purpose to effect, to the end the King should grant that which was onely in his power to grant, and which he himself without the King could not do; he was a suitor to the King to grant him Licence to do that which of himself in respect of the ownership of land he might do without the King, scil. To build, finish, and furnish the said house for the habitation of |[27 a] poor, as well before the Incorporation as after: But to give it possession, &c. as hath been said he could not, and therefore this Licence was but explanatory to declare what Sutton as owner of the Land might do, either with the King’s Licence or without the King; and therefore, the King cannot countermand this Licence, because it is but declaratory of that which Sutton might do as owner of the Land without any Licence. And this appeareth by the book in 3 H. 7. Fitz. Grant. 36. the Record whereof I have seen, Between John Buckland, term. Vintner plaintiff, in an action of Trespass, and Richard Fowcher, Chaplain Defendant, Sanct. Mich. 2. Hen. 7. Rot. 155., in the King’s Bench, and in the Report at large, Termain senth 2 Hen. 7. 13a, 13b. where the case in effect is, That King Henry the fourth by his Letters Patents, Anno 6 regni sui,29 Reciting that Robert Ramsey was seised in Fee of an house in the parish of St. Margaret in London, called the Sun, &c. notwithstanding the Statute of Mortmain, of his especial grace, and for 20 l. gave Licence to Robert Ramsey, that he might give 20 marks rent, going out of the said house, cuid’ capellano divina celebranti ad altare beatae Mar’ in eccles. S. Magni London’ singul’ diebus pro salubri statu preaed’ Rob’ & Johan’ uxor’ suae, &c. Habend’ & tenend’ eid’ capellano & successorib’ suis capellan’ Cantariae praed’ divina in eccles. praed’ ad altare praed’ pro salubri statu, &c. juxta ordinationem praed’ Rob. in hac parte faciend’ celebrat’ imperpet’, &c.30 And afterwards the said Robert Ramsey by his deed indented 10 Junii 1407, Founded, Ordained, and erected the said Chauntry, and ordained and named one John Meadowe to be the first Chaplain to do the said Divine services; And further by the said deed granted to the said John Meadowe, the first Chaplain, 10 marks of yearly Rent issuing out of the said house, To have to him and his Successors Chaplains of the said Chauntry at four usual Feasts in London to be paid, with clause of distress, to him and his successors; And further appointed by the same deed, That he himself should present to the said Chauntry during his life; and after his decease, that Johanna his wife should present to the same during her life, and after her decease, that the Parson and Church-wardens of the said Church of St. Magnus, and their Successors; and afterwards the said John Meadowe died, and after divers vacations the said Richard Fowcher was presented to the said Chauntry, and for the said Rent behind he entered into the said house the door being open, and took a Cup of the Plaintiff’s for a distress, &c. for which taking the action was brought, upon which matters the parties have demurred in Law: And this case was adjourned into the Exchequer Chamber, and there before all the Judges of England divers Objections were made against this Licenceand Grant. 1. That they were cuidam capellano,31 and named none in certain; and when the King’s Grant is uncertain it is void; as if the King |[27 b] licenses one to give 20 marks Rent, cuid’ Abbati,32 the Grant is void, because it is incertain. 2. There is not such Chaplain till Robert Ramsey hath named and ordained one, so that it appeareth that the Grant should be to such a one who is not in rer’ natura;33 as if the King give Licence to grant to the Mayor and Commonalty of Islington, although the Inhabitants of Islington be afterwards incorporated by the name of Mayor and Commonalty, the Grant is void because there was no such Corporation at the time of the Grant. 3. It was objected that in this case the King hath not made any Incorporation, and Incorporation is a thing to be done only by the King himself; and these words juxta ordination’ per Rob’ Ramsey fiendam,34 shall not enable the said Ramsey to make an Incorporation, for the King cannot give Licence to any to make an Incorporation, but the said words shall give him power to make ordinances, first touching Masses and other Divine Services. 2. of what manner of habit he shall be, 3. to have perpetual succession, scil. elective, presentative, or donative, and that is the effect of the said words, and not to make a Corporation; and the King’s Grant shall not be taken by implication; scil. by the words to make an Incorporation, and also to give Licence to grant the said Rent, for then the King’s Grant shall enure to two intents. 4. Admitting that there shall be an Incorporation by implication; yet the Incorporation ought to be before the Licence, and here the Licence is before the Incorporation, and therefore it is void. 5. The Grant ought to have been that the King gave Licence facere & erigere Cantar’, &c.35 and there were not any such words in the Charter; but only Licence to grant a Rent, &c. cuid’ capellano, &c. 6. The Licence is secundum ordination’ per R. Ramsey fiendam;36 and therefore, the King is deceived, because he cannot have knowledge what ordinance it shall be. 7. It was objected that the distress was without warrant and void, because the Licence did extend to grant a Rent onely without mention of any distress. Which objections I have here gathered out of the book Reported at length, 2 Hen. 7. 13a, 13b. and the Reports of Fitz. in 3 Hen. 7. Grant 36, and out of the Record itself.
As to the first and second Objections, it was Resolved, That the Grant was good, for all the Grants of Chauntrys are of such form, scil. cuid. Capellano, and although there be not such Chaplain at the time it is not to the purpose; For if the King granteth to the Commonalty of Islington that they shall be Incorporated of a Mayor & Bayliffs, and that they have power to choose one, it is good although the Election of the Mayor is future. So Note Reader, a difference betwixt an estate or interest which none can take without present capacity, and a power, liberty or Franchise, or thing newly created, which may take effect in futuro.37 As to the 3 it was Resolved, That whereas the King by his Charter saith cuidam Capellano, it was a sufficient Incorporation; andwhen he saith in the Habendum sibi |[28 a] & successorib’ suis,38 the same makethasufficient succession. And so Note Reader, that this Grant of the King doth enure to three intents, scil. to make an Incorporation, to make a succession, and to grant a Rent. As to the 4. it was Resolved, That where the Licence to Found the Chauntry shall be first, and to grant after, that is needeth not, for it is not material which is before, (for the Law shall construe that first to the effect which ought), but here they are simul & semel.39 As to the 5, That in the Licence there were not words of fundare, erigere, facere;40 It was Resolved, That notwithstanding the Grant was good. Nota,41 reader from this, That to the essence of a Chauntry, or other body politic, two things are onely requisite, scil. an Incorporation and a gift, and not any words of fundare, erigere & stabilire,42 or words to such effect; for no such words were contained in the grant of Henry the fourth and yet it was adjudged a good Chauntry lawfully incorporated and founded. And if such words had been requisite and necessary in Law, the judgment ought to have been given against the Chauntry, because they were left out in the King’s grant. And thereby it appeareth, that in the case at bar, they were explanatory and of abundance: which is a judgment in the point, by the resolution of all the Judges in the Exchequer Chamber. As to the sixth point, it was resolved that these words, secundum ordinationem per R. Ramsey fiendam,43 import sufficient certainty, scil. to make Ramsey to ordain, 1. what Masses and other divine services shall be celebrated, 2. of what habit or order the Chaplain shall be, and 3. whether he shall be elective, presentative, or donative. And by force of these words Ramsey in the case did ordain the same to be presentative by the Rector of the parish of St. Magnus for ever. As to the 7. objection, It appeareth by the Report of Fitzherbert ubi supra,44 that the opinion of the two chief Justices, Hussey and Brian and Starkey, chief Baron, and Fairfax Justice, was, That the distress was without warrant, but Townshend conceived it to be good. But inspecto recordo,45 it was adjudged that the distress was good and well warranted by the grant. For the Chauntry Priest did distrain in the said house for the Rent, and his distress was adjudged lawful, and the Plaintiff barred, And the reasons, as I conceive, were, because the King’s Charters, made for the erectionofpiousandcharitable works shall be always taken in the most favourable and beneficial sense; and the most beneficial rent that a man can grant is a rent charge. 2. The distress is a necessary incident to the Rent, for without that the Grantee shall be without remedy: Verba sunt accipienda cum effectu,46 and words are to be taken with the effect. 2 Edw. 3. 3. Which case I have cited at large, because it is |[28 b] notable and pertinent, and stronger (as I conceive) then the case in question. Secondly, power is given to Sutton “to place a Master of the said Hospital. 3. At all times hereafter to place, erect, found and establish in the said house, &c. one Free-school for instructing youth,” (which well expoundeth the precedent words concerning the Hospital,The 4 branch of the Charter the answer to the 3 objection Antea 23.b. for these words extend onely to make fit and to finish and furnish a Grammar-school within the said Charter-house) “and a learned Preacher to teach all in the word of God. 4. We do by these presents, ordain, constitute, limit and appoint, That the said House and other the premises shall from henceforth be ever hereafter named incorporated and called the Hospital of King James, founded in the Charter-house, within the County of Middlesex, at the humble petition and at the only costs and charges of Thomas Sutton Esquire And the same Hospital and Free-school by the name of the Hospital of King James, &c. We do firmly by these presents erect, found, and establish and confirme, to have continuance for ever.” By this clause, the King in praesenti47 giveth the name of the Hospital, but as it appeareth before, Sutton hath devised it, and hath sued to the King to name it accordingly; and that the name of the incorporation itself. (scil. At the humble suit of Thomas Sutton,) doth import so that as it is said in 38 E.3.14.b. and 21 E.4.56a, 56b. The name of incorporation is as a proper name or name of baptism: In this case Sutton as God-father giveth the name, and by the same name the King doth baptize the incorporation, By which it appeareth that the objection, That the King cannot give a name to an house which is the Inheritance of another, is not of any value, here Sutton has consented and assented to it, and all the same is done at his humble suit. And this objection doth tend to the dissolution of all ancient Deans and Chapters: For at first, as appeareth in the third part of my Reports in the case of the Dean and Chapter of Norwich, All the possessions were to the Bishop, and yet by his assent the Dean and Chapter were incorporate and named of the Cathedral Church, which did then belong to the Bishop only; and afterwards a certain portion was assigned to the Chapter; So that the Chapter was before that they had any possessions; And that is the reason that of common right, the Bishop is Patron of the Prebends that because their possessions were derived from the Bishop, and therefore he was Patron and Founder: And therewith agree 17 E. 3. 40ab., 25 Ass. pl. 8., 10 E. 3. 10., 50 E. 3. 26b., 15 Hen. 7. 11. So that at first the Dean and Chapter were by the assent of the |[29 a] Bishop incorporated and named of the Church Cathedral of the Bishop. And it was said, that questions moved in the Exchequer used to be like spirits which may be raised with much ease, but suppressed and vanquished with much difficulty; but these questions were like ruinous buildings, more easily thrown down then raised and set up. And all the arguments which have been made against this honourable work of charity, are hatched out of meer conceit and invention, without any ground of Law, and such which have any colour were utterly mistaken.Answer to the 4 objection Antea 23.b. And as to the fourth Exception, That the place of every corporation ought to be certain; and Sutton sueth and the King licenceth Sutton to found, erect, &c. an Hospital “at or in the Charter-house,” which was incertain; To that the Charter expressly answereth That the King by this clause doth ordain, &c. “That the said House and other the premises, shall from henceforth for ever hereafter be, remain, &c. and shall ever hereafter be named and called the Hospital of King James, founded in the Charter house:” So that all the house and premises are baptized by the King by the name of the Hospital, &c. in which is no shadow of incertainty, and therefore Suttonas to the Licence for the mechanical part, which (as has been said) was abundant, to get and finish all or any part of the house for an Hospital, &c. yet all the house itself, Orchards and Gardens &c. are named by the name of the Hospital. And it was observed, That the King by this clause not onely nameth the said house to be an Hospital; but by the name of the Hospital to be erected, founded, established, and confirmed; so that the King nameth it, and leaves the mechanical part to Sutton to perform. And of the same importance is the other Objection, That a known name is not sufficient to found an Hospital, but it ought to be described by metes and bounds, as in divers precedents hath been used; for it appearth in Willim de Londres’ case, 2 E. 3. 36b. Adam brought a Scire facias48 against Willim de Londres of the manor of E. the Defendant pleaded that he himself is Master of the Hospital of St. Bartholomew and so beareth the name of dignity not named judgment of the writ: to which the Plaintiff replied That which the Defendant Calleth an Hospital is the Manor of East Smithfield, and was a Manor at the time of the fine levied: And it was holden by the Court, That by this Writ he ought to have the Manor, as the Manor was at the time of the fine levied; And whereas the manor was made an Hospital after the fine, by this suit he is to defeat your estate and your name, and accordingly it was ruled that the Writ was good. Which proveth that a manor (which imports more certainty and variety than an house known by a certain name) may be created into an Hospital. And in 15 Ass. pl. 8. John de Derbie’s case,The 5 clause of the Charter. A Manor made Corpus praebend’.49 The fifth Clause stands upon two Branches: “1. for the better |[29 b] maintenance and continuance of the said Hospital, &c. and that the same may take the better effect, and that the Revenues may be the better governed and imployed there shall be sixteen Governours, and names fifteen of them by express name, and such person as from time to time shall be Master, to be the first and present governors. 2. And the said persons and their successors, by the name of Governours of the Lands, &c. one body incorporate and politick, by that name to have perpetual succession for ever to endure, We do by these presents for ever hereafter really and fully incorporate,” and the words of this clause are verba operativa.50Verba operativa. The division of corporations. And it is to know, That every Corporation or Incorporation, or body Politick and Incorporate, who are all one, either stand upon one sole person, as the King, Bishop, Parson, &c. or aggregate of many, as Mayor and Commonalty, Dean and Chapter, &c. and these are in the Civil Law are called Universitas sive Collegium.51What things are the essence of a corporation Now it is to see what things are of the essence of a Corporation. 1. Lawful authority of Incorporation; and that may be by four means, scil. by the Common Law, as the King himself, &c. by authority of Parliament; by the King’s Charter (as in this case) and by prescription. The 2. which is of the essence of the Incorporation, are persons to be incorporated, and that in two manners, persons natural, or bodies incorporate and political. 3. A name by which they are Incorporated; as in this case Governors of the Lands. &c. 4. Of a place, for without a place no Incorporation can be made; and here the place is the Charter-house in the County of Middlesex. Vide 3 Hen. 6 Det. 20. 17 Edw. 3. 59b. & 45 Edw. 3. 27. 5. By words sufficient in Law, but not restrained to any certain, legal and prescript form of words. And for as much as good pleading is lapis Lydius,52 the touch-stone of the true sense and knowledge of the Common law; the form of pleading of an Incorporation by prescription is to be observed, for in such case he ought to prescribe in every thing which is of the essence of the Incorporation. In the Book of Entries, Quare Impedit 1. the pleading is, Quoddam Hospitale Sanctae Mariaede Bristow de uno magistro, & conventu a toto tempore, &c. incorporat’ fuerunt per nomen Magistri & Conventus Hospitalis Sanct’ Mariae de Bristow:53 and there it appeareth that: there they purchased Lands and Tenements, and were impleaded without any prescription for the one or the other, because theyareincorporated by prescription by a certain name; then to implead and be impleaded, to grant and purchase, are incidents to a body incorporate. M. 15 Hen. 7. Rot. 522. in the Common Pleas there the prescription is Custos & vicarii collegii vicariorum in choro |[30 a] Hereford sunt & a toto tempore, &c. fuerunt incorporat’ per nomen Custodis et Vicar’ Collegii Vicariorum in Choro Hereford’:54 and there also they purchased and were impleaded as incidents to the incorporation. Lib’ Intrat’ tit’ Ass. fol. 68. Magister, fratres, et sorores fraternitatis sive guildae novem ordinum sanctorum Angelorum juxta Brainford55 brought an assise: the tenant pleads, quod in villa de Brainford est quaedam fraternitas incorporata infra tempus memoriae de magistro, fratribus et sororibus novem ordinum Angelorum juxta Brainford Bridge, absque hoc quod habetur aliqua talis fraternitas: which is reported in 22 Edw. 4. 34a. where the tenant at first pleaded, No such incorporation, and if it be not found, and naught because two bars, and then he pleaded the said plea, quod est quaedam fraternitas incorporata, &c.56 and yet there they were infeoffed by Bocking upon condition, and capable thereof as incident to a corporation. And therewith agreeth the Bishop of Exeter’s case in the book of Entries, 455. 2 Hen. 7. 17b. the Corporation of Godmanchester 34 Hen. 6 27a, 27b. in the case of the Hospital of Wycombe. v. 26 Hen. 8 1. In 9 E. 4. 20a. The Master of the Hospital of Burton S. Lazar prescribed, quod ipse et omnes praedecessores sui magistri hospitalis praedict’ a toto tempore, &c. nominati et cogniti fuerunt, &c. tam per nomen Magistri hospitalis Sancti Lazari de Burton, de ordine Sancti Lazari de Jerusalem in Angliâ, quam per nomen Magistri de Burton Sancti Lazari de Jerusalem in Angliâ:57 By which it appeareth that this word incorporo, or any derivation thereof is not in Law requisite to create an incorporation, but other equivalent words are sufficient, as nominati & cogniti:58 and therewith agreeth 44 Ass. p. 9. in The Prior of Plimpton’s case, and 4 Edw. 4. 7b. in the case of the Abbot of Glastenbury, and in none of these Books or Records was any mention made of these words, fundo, erigo, &c.59 or any other like words; for as it hath been said, they are onely declaratory words, and the effect of them may be done by the owner of the land without any grant. And it was well observed, that in old time the Inhabitants or Burgesses of a Town or Borough were incorporated when the King granted to them to have Gildam Mercatoriam60 in the Register 219 b. where the Writ doth recite, quod cum inter caeteras libertates civibus civitatis Winton’ per cartas progenitorum nostrorum quondam Regûm Angliae quas per cartam nostram confirmavimus, concessum sit eisdem, quod nullus eorum qui fuerunt infra gildam mercatoriam placitet extra murum, &c.61 where guilda signifies contubernium seu fraternitas incorporata;62 And upon that the place of their meetings and assemblies was called the Guild-hall. And I have seen |[30 b] the Charter made by King H. 1. Textoribus Lond’,63 by which he granteth to them that they shall have Gildam Mercatoriam,64 and a confirmation of it made by King H. 2. by which Charters they were incorporated. And where the opinion of Fineux in 13 H. 8. 3. b. and of Prisot in 39 H. 6. 13. b. was cited at the barre, that a corporation aggregate of many cannot be a body only without a Head; the same was utterly denied: For at first most part of the Corporations were a body without any head by force of these words Gilda Mercatoria. And that a Corporation aggregate of many may be without a head, see18Edw.2.Annuity 48. 5 Edw. 3. 11. b. 22 Ass. 67. 29 Ass. 17. 2 Hen. 6. 9. 18 Hen. 6. 16ab. 19 Hen. 6. 80. 21 Edw. 4. 55b. 56ab. 7 Edw. 4. 14ab. 2 Maria Dyer 100. And it appeareth by Record that Paulinus the first Archbishop of York, after he had baptised the inhabitants of Nottingham-shire in the River of Trent, founded a Collegiate Church in Southwell of Prebendaries, consecrated to the Virgin Mary, which continueth a body without a head even to this day. See for this word Guild or Fraternity in the book of Entries, 68. 37 Edw. 3. cap. 5. 15 R. 2. c. 5. the Statute of 1 Edw. 6. of Chantries. In which three things were observed, 1. how prudens antiquitas65 did always comprehend much matter in a narrow room: 2. that to the creation of an Incorporation the Law had not restrained itself to any prescript and incompatible words: 3. that when a Corporation is duly created, all other incidents are tacite66 annexed to it. And for direct Authority in this point in 22 E. 4. Grants 30. it is holden by Brian chief Justice and Choke, That a Corporation is sufficient without words, to implead or be impleaded, &c. and therefore divers clauses subsequent in the Charters are not of necessity but onely declaratory, and might well have been left out; as 1. by the same to have authority, ability, and capacity to purchase &c. but no clause is added that they may alien, &c. and it needeth not, for it is incident: 2. To sue and be sued, implead and be impleaded, 3. To have a Seal, &c. that is also declaratory, for when they are incorporated they may make or use what seal they will: 4. To restrain them to alien or demise but in certain form; that is an Ordinance testifying the Kings desire, but it is but a precept which doth not bind in Law: 5. The survivors shall be the Corporation, that is a good clause to oust all doubts and questions which might arise, the number being certain: 6. If the Revenues encrease, the same shall be employed to encrease the number of poor, &c. that is but explanatory as appeareth by the Case of Thetford School in the 8 part of my Reports, f. 131 ab.: 7. To be visited by the Governors, &c. the same is also explanatory; |[31 a] For in this case the poore which shall be resident in the house of the Charter-house shall not be incorporated, but certain persons in whom the possessions are vested, who shall not be resident there but onely to have the general, government and ordering of the poor therein; so that this Case is out of the Statutes of 2 Hen. 5 c.l. and 14 Eliz. cap 5. for if no visitor had been appointed by the Charter, the Governors should visit; and the books in 8 E. 3. 28. & 8 Ass. 29. do not gainsay it, where is holden, That if the Hospital be Lay, the Patron shall visit, and if Spiritual, the Bishop shall visit, so that every Hospital is visitable; it is true, but in the Case at the barre the poor of the Hospital are not incorporated, and so no legal hospital. 8. To make Ordinances; the same is requisite for the well ordering and governmenting of the poor, &c. but not to the essence of the incorporation. 9. The exemption from the Ordinary is but declaratory, for being a Lay-incorporation he neither can nor ought to visit. 10. The licence to purchase in Mortmain is necessary for the maintenance and support of the poor; for without Revenues they cannot live, and without a licence in Mortmain they cannot lawfully purchase Revenues, and yet it is not of the essence of the Corporation, for the Corporation is perfect without the same; so that by that what hath been said, it appeareth what things in genere67 are requisite to a complete body incorporate, and which are verba operativa68 in this case (which are necessary to be known in every case) the resolution of which it appeareth how necessary it is, that the Law and Experience joyn in hands together.
Answer to the 5th Objection Antea 23b.As to the fifth Objection, That no incorporation was presently made as the Letters Patents import, nor can be till the Master was named, and therefore the Charter is repugnant and void. To that it wasanswered, That this Objection doth extend to the overthrowing of a great number of Incorporations; for when a Corporation is created by Letters Patents, by the same Patent power is given to them to a choose, master Aldermen, or Bailiffs, or Governours, or the like, and yet they are presently incorporated by the same Letters Patents; and therewith expresly agreeth Plo. Com. 592. in the Cook’s case, 21 E. 4. 59. & 3 H. 7. Grant. 36. vouched at large before to the first and second Objections. Vide 32 E. 3. Aid. 39. 13 E. 4. 8. 16 E. 3. Grant 65. And it is true it is presently by the Letters Patents a Corporation in abstracto,69 but not in Concreto,70 till the naming of the Master. And a Case adjudged in the King’s Bench, Mich. 34 & 35 El. rott. 172. coram reg.71 was strongly urged: the governours of the possessions, revenues, and goods Hospitalis Ed. regis Angliae Sexti72 brought a bill of debt against Elias Germaine. The Defendant pleaded, That King Edward the sixth |[31 b] reciting the care of the city of London for the relief of poor people and infants, concessit Majori, Civib’ et Communitati Lond’Domummansionalem rocat’ Bridewell, &c.73 and there the King declareth his intent, that Bridewell shall be founded, erected, &c. an Hospital for the said poor, &c. idem Rex ut intentio sua melior’ capiat effectum,74 and to the end the Lands which shall be granted to them shall be better governed, per easd’ literas patentes voluit et ordinavit quod Hosp’ praed’ cum sic fundat’ erect’ et stabilit’ fuer’ Hospital’ E. 6. Reg’ Angl. Christi Bridewell, et S. Tho. Apost’ nominetur et appelletur imperpetuum, et quod major’ communitas et cives civitat’ praed’ forent Gubernatores, &c. et quod iidem Gubern’ de caetero essent et forent un’ corpus corporat’ per nomen Gubernat’ possess’ reventionum et bona’ hospital E. Reg’ Angl’ Christi Bridew. et St. Th’ Apost’, &c.75 and further pleaded, quod nullum hospital’ quale in eisd’ lit’ pat’ mentionat’ post confect’ praed’ literarum pat’ sic fundat’, erect’ et stabilit’ fuit, &c.76 Upon which the Plaintiff did demurre in law; and upon argument at the barre and bench it was adjudged for the plaintiff. For the said Ordinance, that the said House shall be an Hospital cum sic fundat’ &c. fuer’77 is intended onely, of the mechanical part of an actual Hospital, scil. of the fitting and finishing of the Hospital, house with poor, &c. And this Hospital in intention onely is sufficient to support the name of a Corporation, and the words de praesenti, scil. quod iid’ gubernat’ de caetero essent et forent un’ corpus corporat’ per nomen, &c.78 in law doth incorporate them presently, and shall not stay till there be an actual Hospital, or till the house be fitted or furnished, which is the mechanical part of the Hospital scil. for the habitation of the poor; which is the first thing to be observed by the said judgment, vide 32 E. 3. Aid. 39. King Edward the third newly founded a Priory and granted to the Monks that they might chuse a Prior, and before that the Prior was chosen W. made a lease to one A. for life, the remainder to the Prior and Convent; and in a Scire facias, against A. he pleaded, that W. was seised in Fee and leased to A. the remainder to the Prior and Convent who were newly founded by the King; and because there was not yet a Prior, the right was in the King until, and prayed aid of the King and the aid by award was granted, and a Writ of Procedend’79 came, and then A. the Defendant shewed, That after the aid granted there was a Prior made and ordained in whom the right remained, and prayed in aid of the Prior; he was ousted of the aid because he had aid before, which proveth that the remainder in such case is good. The second thing to be observed in the said Judgment in the said case of The Hospital of Bridewell, is, that one corporation may be made out of another corporation, sc. the major Citizens, and Commonalty of London, are created in their politick capacity Governours, &c. of the Hospital of Bridewell, 9 E. 3. 18. b. many corporations may be created one out of another, as the Dean and Chapter of Lincoln are a joynt corporation,Note. the Dean by himself is incorporated, and every of the Prebends is incorporate by himself, and in a case which is so manifest this shall suffice.
|[32 a] And as to the sixth Objection, That till an Hospital, be founded that no incorporation can be, for then there shall be idle andmathematicalgovernours.Answer to the 6th Objection Antea 23b. It was answered, That there was an Hospital in potestate,80 and an hospital in exec’;81 also an Hospital, in potentia82 and an Hospital, actu,83 An Hospital, re,84 and an Hospital, nomine.85 And as to the creation of an incorporation, an Hospital potestate, potentia, seu nomine86 sufficeth; as one may by Letters Patents be Governour of an Army before there be an army. Vide 17 H. 6. Protection 56: And the same agreeth with Philosophy and reason. Aristotle lib. 3. De generatione saith, quod caro gignit carnem;87 and that is true in potestate but not actu; and so any fowl so soon as it is hatcht is volatilis a volando, quia habet potest’ volandi quanquam act’ volandi non habet:88 So a child as soon as he is born is said rationalis,89 because he hath potestatem, although he hath not, and perhaps never shall have rationem actu.90 And it is also proved by old Records, and our books also, as in the Book of Enteries. Tit. Annuit 32. 33. Rex H. 5. quandam domum in quodam loco sive solo apud Shene (and abbutteth and boundeth the soil) quam vocari et nuncupari voluit Domum Jesu de Bethlem de Shene, duxit ordinand’ et fundand’ et domum illam quant’ in ipso fuit fundavit et erexit (which was but a nominative house, for none was then built) et idcirco locum et sol’ praed’ de Shene ut primar’ fundationem dedit, &c.91 by which it appeareth that a void place or soil in which an house is intended to be built, may by the King’s Charter be named a House, and this nominative house shall be sufficient (as there it was,) to support the name of the incorporation. Also it appeareth by Matthew Paris 64, and Polydore Virg’ Chronic’ Chronicor’, &c.92 The Hospital of St. Johns of Jerusalem in England was incorporated in 14 Hen. 1. of the Templers, by the name of Magister milit’ Templi et confratres sui in Anglia in an’93 24 H. 1. and yet neither the fabrick of the Temple, nor the house of the hospital, was founded and builded, sed regnante94H. 2. of the one Jordan Biset homo pius et bene nummatus a holy marshall monied; 95 and of the other Heraclius Patriarch of Jerusalem were Founders. Vide Camden’s Britannia 311, which proveth that a void place to support the name of a corporation may by the King’s Charter be named an Hospital or Temple, and it is not requisite, that there be always truth in the name of the Corporation either of an Hospital or of any other body politick. King Henry the eighth, in the second year of his reign according to the Will of King Henry the seventh granted to divers Bishops, Thomas Earl, of Arundel, &c. John Fineux, and Robert Read, Chief Justices, John Young, Master of the Rolls, &c. who were Executors of King Henry the seventh quandam peciam terrae vocat’ le Savoy96 in the parishes of Saint Clements, and St. Mary le Strand ad intentionem quod iidem quoddam hospital’, in et super praed’ peciam terrae vocat’ Savoy erigere, fundare et estabilire possint,97 4 H. 8. The King licenseth them quodd’ Hospit’ de uno magistro et 5 capellanis super praedict’ peciam terr’ vocat’ le Savoy fundare, & Hospitale cum sic fundation’ fuerit,98 shall be incorporated by the name Magister & Capallanorum |[32 b] Hospital’H. nuperregis Angliae 7. de Savoy,99 and yet in truth it was not an Hospital, in the time of Henry the seventh but in intention onely, and yet the King in his Charter doth call it the Hospital of King Henry the seventh. And the same was admitted to be a good name of incorporation by all those who argued the case betwixt Mariat et Pascall upon the incorporation of the said Hospital, Trin. 30 Eliz. in the Exchequer, where the Case was adjudged; or in the Exchequer chamber, where it depended by Writ of Error. And therefore in 44 E. 3. 16. b. Regist. 23. there the Corporation was Prior Hosp’ S. Johan’ Jerusal. in Anglia:100 and so 9 E. 4. 6. Hospitale S. Lazari de Jerusal’ in Angliâ, which sufficeth for, the name of the Corporation; although it be but a fiction, scil. that either S. John (which was S. John the Evangelist) or Jerusalem was situate in England. So Magistri milit’ Templi Jerusal’ in Anglia;101 and in the Register, Prior et frat’ Sancti Mariae de monte Carmeli in Anglia102 So I have seen a Record, That Catharine the first wife of King Henry the eighth had a licence to found a Chauntry by the name of the Chauntry de monte Calvarie extra Algate London.103 And it is great reason that an Hospital in expectancy or intendment, or nomination, shall be sufficient to support the name of an Incorporation, when the Corporation itself is onely in abstracto,104 and resteth onely in intendment and consideration of the Law; for a Corporation aggregate of many is invisible, immortal, & resteth only in intendment and consideration of the Law; and therefore in 39 H. 6. 13b. 14 a. Dean and Chapter cannot have predecessor nor successor. 21 E. 4. 27. & 30 E. 3. 15. 6. They may not commit treason, nor be outlawed, nor excommunicate, for they have no souls, neither can they appear in person, but by Attorney 33 H. 8. Br. Fealty. A Corporation aggregate of many cannot do fealty, for an invisible body cannot be in person, nor can swear, Plow. Com. 213, and The Lord Berkley’s Case 245, it is not subject to imbecilities, or death of the natural, body, and divers other cases. A thing which is not in esse but in apparant expectancy is regarded in Law, as a Bishop who is elect before he be consecrated, an infant in his mother’s belly before his birth, &c. 5 E. 2. Bre. 80. 8 E. 2. voucher 237. 38 E. 3. 30. 41 E. 3. 5. 11 E. 3. Quare Impedit 158. So for the name of a Corporation it is sufficient to name a place in England by the name of Jerusalem, mount Calvary, mount Carmel, Bethlehem, &c. a fortiori,105 the name of a spacious and goodly house well and actually buildeth by the name of an Hospital is sufficient; for the same importeth truth and certainty. By which it appeareth, that in the case at barre there was a lawful incorporation of the Governours, &c. created and instituted by the King’s Charter, and by consequence as well any person in England, as Sutton, might give and grant to them before any foundation laid, or to be laid by Sutton (as it was imagined he ought to have done before they were capable, &c.) but the same is clearly answered and confuted before; and in truth haec recitasse, est confutasse.106
|[33 a] As to the seventh Objection, it is to know that there are two manner of Foundations,Answer to the 7th objection Antea. 23b. one fundatio incipiens,107 the other fundatio perficiens,108 and therefore quatenus ad capacitatem, et habilitatem,109 the incorporation is metaphorically called the foundation, for that is the beginning, as a foundation quasi fundamentum capacitatis,110 preceding the whole. And therefore in 21 H. 6. 4a. a Writ was brought against John Arden, Abbot of S. John Baptist of Colchester; the Defendant pleaded, that before time of memory foundation was made of the same place per nomen Abbat. eccl’ monast’ de S. Joh’ de Colchester, &c.111 where Foundation is taken for Incorporation, 38 E. 3. 14. 38 E. 3. 28a. 20 H. 6. 27a. & 18 H. 6. 16a. in The Dean and Canons of Windsor’s Case, and divers other books agree with the same, Sed quatenus ad dotationem,112 the first giving of the Revenues is called the Foundation, and who giveth the same is the Founder in law, for proprie, fundatio est quasi fundi datio,113 and the first gift is fundamentum dotationis seu collationis, et appellatione fundi aedificium et ager continentur;114 and that is proved by the Statute of West. 2. c. 41. Si Abbates, Priores, Custodes Hospital’ et aliarum domorum religiosarum fundatarum ab ipso Rege vel a progenitoribus suis alienaver’ vel de caetero tenem’ domibus ipsis ab ipso vel a progenitoribus suis collata, &c.115 In which was observed, that in respect of tenements collated or given by the King, the house was said to be founded by the King, but more fully in the clause following in the said Act, Si autem domus illa a comite, barone, vel ab aliis fundata fuerit, habeat ille a quo, &c. tenement’ sic alienat’ collat’ fuer’ br’ e ad recuperand’, &c.116 where the collation or gift of the Tenements is called the Foundation. And where the Founder bringeth the said Writ de contra formam collationis,117 the Writ of Praec’ quod reddat mesuag’ quod eid’ domui collat’ fuer’,118vide 9 H. 7. 26. F. N. B. 211. Old N. B. 142. 38 Ass. p. 22. He who giveth the first lands is the Founder, quia fundare in that sense is nothing else but fundum dare,119 and therewith agreeth 14 E. 3. Corrodie 5. In a Writ of Prohibition, where a common person is Founder of an Hospital, the writ as appeareth in the Regis 41a. saith, Hospitale Sancti Egidii leprosorum de Burton per antecessor’ R. filii I. ad sustentation’ leprosorum et aliorum pauper’ et infirmor’ ibid’ totum in temporal’ et nihil in spiritual’ fundat’ existit,120 and the like Writ where the King is Founder, cum hospitale nostr’ sanctor’ Innocentium juxta Lincoln’ de fundatione progenitor’ nostror’ Regûm Angliae, &c. de terris et possessionibus pro sustentatione pauper’ et infirmor’ in eod’ hospital’ degentium dotatum existat:121 121 In which it was observed, that where the first Writ saith fundat’ this Writ calleth it dotat,122 39 E. 3. 17. The Abbot of Lyra brought a Scire facias against the Dean of Woborn, where the Dean said he held of the Patronage (that is of the King’s Foundation) and prayed aid of him, and had aid; and there came a Writ of Procedendo, and it was challenged because the Writ said of the Patronage |[33 b] and not of the Collation, and it was taken all one, 33 E. 3. Aid. 103. The Dean of Stafford’s case, the Deanry is said to be of the Foundation, and a little after the King’s collation 8 Edw. 3. 56. in Sirach’s Case, by the foundation the land is amortised, Vide 4 Edw. 3. Ass. 177. 21 Edw. 3. 60a. 24 Edw. 3. 33. 34a. 44 Edw. 3. 23. 44 Edw. 3. 11.b. 2 Edw. 3. 28. The Earl of Richmond’s case, 6 Hen. 4, 5. 7 Edw. 4. 12. And therefore it was resolved, That if the King had incorporated the poor of the said Hospitall, Sutton need not have made any instrument comprehending any Foundation or erection, &c. But his gift of the land being the first act had made him Founder, and the very first donation is all the Foundation which is requisite in Law; and to the erection of an Hospital, &c. there is not in law any thing requisite, but incorporation and donation. And in the Report at large I have omitted all the Arguments at length on both sides upon one common ground, where an act to one intent shall enure to divers intents distinct in time; some holding, That the bargain and sale doth amount not only to a Dotation, but also to a Foundation, and others totis viribus e contra;123 for it appeareth to you now without any question, That the first Dotation is the Foundation. And yet in that also a difference is necessary to be well understood; scil. when the King expresses the words, designeth the place, appointeth the number, and giveth them a name by his Charter; so that the same is a complete Corporation; there the Founder or Donor hath nothing to do but to make the Dotation without any instrument comprehending these words, fundo, erigo, stabilio, &c.124 or other the like words. For the common person who is the Founder in such case hath nothing to do in the power of incorporation; but when the King by his Charter doth reserve as well the nomination of the persons, as the name of the incorporation to the common person who shall be the Founder, there he ought to name the parties, and to declare by what name they shall be incorporated, and there many times, although it be superfluous, he useth these words, fundo, erigo, &c.125 or the like. And when the common person hath done it and declared it in writing according to his authority, then they are incorporated by the King’s Letters Patents, and not by the common person, for he is but an instrument, and the King maketh the Incorporation in such case in the same manner as if all had been comprehended in the Letters Patents themselves: as it is true, that none but the King alone can create or make a Corporation, as it is holden in 49 Edw. 3. 4. 4a. 49 Ass. 8. but, qui per alium facit, per se ipsum facere videtur.126 See for this difference 38 Edw. 3. 14b. 22 Edw. 4. Grant 30. 2 Hen. 7. 13a, 13b. |[34 a] Grant 36. 20 Hen. 7. 7. And as to the eighth Objection against the nomination of the Master,Answer to the 8th Objection. Ante 24a. it was resolved that it was good; For Sutton hath a liberty at his will and pleasure to nominate him; and when he is named, he is Master by force of the Letters Patents, and is now as if he had been named in the Letters Patents themselves at the begining: and the other part of the Objection is answered before.
Answer to the 9th Objection. Antea 24a.And as to the objections against the bargain and sale, it was first resolved without question, That money given by the Governours or any of them as a private person, is a good consideration to grant the land to them in their politick capacity. But the Indenture importeth that they paid it as Governours and by such name they are acquitted by the Indenture. Also there is twelve pence Rent reserved to Sutton and his heirs, which is a good consideration. 2. Although in the Habendum127 a trust is declared, the same without question cannot make the bargain and sale void, but the conveyance being by bargain and sale, it was wisely done to declare the confidence and trust. And as to the third, the same is clearly answered and resolved as before.
Answer to the 10th Objection, Antea 24a.And as to the last Objection, scil. That in pleading, those Governours cannot plead, that they were seised in jure hospitalis,128 because there was not any Hospital incorporate, nor in esse,129 at the time of the incorporation. To that it was answered, That the pleading shall be that they were seised in their demesne as of Fee in jure incorporationis suae,130 and so it was pleaded in the Cooks case of London in Plow. Com. Vide Fulmerstone’s case also, in Plow. Com. 102. vide 7 Edw. 3. the case of custos altaris,131 he counted that he was seised, &c. in jure altaris.132 And as to the precedents which were shewed, it was answered, That there are many clauses inserted in Charters as well of the King as others, ex consuetudine Clericorum,133 which are not de necessitate legis,134 but some declaratory and explanatory, and some prolix and nugatory, but lex multa proficientia, et preficientia paucis comprehendit.135 And all the Judges which argued this case (except the two before-said) did conclude against the Plaintiff, and those two also mutatâ opinione136 did assent to the judgment: so that by the assent of all the said Judges nullo contradicente137 judgment was given against the plaintiff: And the Lord Ellesmere, Lord Chancellour of England, heard all the arguments at the barre and bench did agree in opinion with the Judges: So that this great work of Charity hath tasted of such charity which ought to be in Judges, which is declared in the statute |[34 b] of West. 1. cap. ult. Summa charitas est facere Justitiam omnibus personis omni tempore quando necesse fuerit.138 And there is a good rule for these Governours, and all other Corporations which is expressed in the Statute de Templariis anno 17 Edw. 2. in these words, Ita semper quod pia et celeberrima voluntas donatorum in omnibus teneatur et expleatur et perpetuo sanctissime perseveret.139 And Sir Thomas Fleming, Knight, after the first day this case was argued fell sick, of which Sickness he afterwards died, so as he never argued this case. The said Sir Thomas Fleming was first a Sarjeant at Law, and afterwards Solicitour General to Queen Elizabeth, and to the King that now is for the space of twelve years, and then was preferred to be chief Baron of the Exchequer after the death of Sir William Periam, and then was advanced to be chief Justice of England after the death of Sir John Popham; all which places he discharged with great judgment, integrity and discretion, and he deserved the good opinion of all that knew him, because he was of a sociable and a peaceable nature and disposition.
The Reason of reporting this case at large.Which Case I have reported at length for three causes. 1. For the Confirmation of Incorporations founded for works of Piety & Charity in time past. 2. For the better instruction how they may be after so and established that no exception may be taken to them. 3. For the resolving of certain opinions and questions which were moved at the barre, and which might have disturbed the peace of the Law. In the argument of this case many other authorities were cited, sc. 2 Edw. 3. 47. 3 Edw. 3. 83. 5 Edw. 3. 144. 7 Edw. 3. 57. 8 Edw. 3. 67. 8 Edw. 3. 208. 18 Edw. 3. 1. 20 Edw. 3. Nonabilite 9. 20 Edw. 3. Corone 225. 21 Edw. 3. 35. 32 Edw. 3. Aid 55. 40 Edw. 3. 28. 44 Ass. 2. 13 R. 2. Breve 643. 11 Hen. 4. 12. 19. 14 Hen. 4. 8. 3 Hen. 6. 28. 7 Hen. 6. 13. 9 Hen. 6. 13, 14. 16. 20 Hen. 6. 7. 21 Hen. 6. 2. 12 Edw. 4. 17. 15 Edw. 4. 1. 21 Edw. 4. 32. 55. 57. Lib. Ent. 112. 6 Hen. 7. 14. 10 Hen. 7. 16. 11 Hen. 7. 9. 11 Hen. 7. 27. 13 Hen. 8. 13. 14 Hen. 8. 29. 32 Hen. 8. br. Corp. 78. 1 Mar. Dye. 98. 7 El. Dy, 81. the case of The College of Grainstock, 10 El. Dyer the case of The College of Landebrevis, Pl. Com. Grendon’s case 494. Hil. 16 El. rot. 495. Sir Fr. Fleming’s case in the Com. Pl.
The names of the governors nominated by Sutton and expressed in the said charter, were, The most Reverend Father in God, George, Archbishop of Canterbury, Thomas Lord Ellesmere, Lord Chancellor of England, Robert Earl of Salisbury, John Bishop of London, Lancelot Bishop of Ely, Sir Edward Coke then Chief Justice of the Common Pleas and now Chief Justice of England, Sir Thomas |[35 a] Foster, one of the Justices of the Court of Common Pleas, Sir Henry Hobart then the King’s Attorney-General, and now Chief Justice of the Court of Common Pleas, John Overal, Dean of the Church of St. Paul in London, George Mountain, Dean of Westminster, Henry Thursby one of the Masters of the Chancery, Jeffery Nightingale, Richard Sutton, John Law, Thomas Brown, and the Master of the said hospital for the time being; and after the death of the said Sir Thomas Foster, one of the Justices of the Court of Common Pleas, (who was a grave and Reverend Judge of great judgment, constancy and integrity) Sir James Altham, Knight, one of the Barons of the Exchequer, was according to the said Charter unanimi consensu140 in his place. And the said Master of the Hospital, which Sutton had nominated durante bene placito,141 our soveraign Lord the King that now after the death of Sutton, did by his Letters Patents, nominate Master for his life.
The Case of the Isle of Ely.
(1609) Michaelmas Term, 7 James I Before the Justices of the Court of Common Pleas. First Published in the Reports, volume 10, page 141a.
Ed.: The Commissioners of Sewers decreed that a new, seven-mile-long river should be cut through the fens, and ordered that the new river be paid for by a tax they levied on fifteen towns. The Privy Council referred the case to Coke and the Common Pleas for a determination of whether the Commission had the powers necessary to do this. Coke applied the Parliamentary acts creating the commission and giving it authority and resolved that it only had the power to repair damage to existingwatercourses and not to make new ones. Further, it only had the power to assess individuals according to the benefit the individualsreapedfromtheprotection of the sewers.
A Case was referred by the Lords of the Councel to Coke, Chief Justice, Daniel and Foster, Justices of the Court of Common Pleas, concerning a Decree made by the Commissioners of Sewers, for the making of a new River within the Isle of Ely; and in effect the case was such. The Commissioners of Sewers had decreed, That a new River should be cut out of the old River of Owse, and through the main land within the same Isle, for seven miles unto another part of the same River: And for the doing thereof, they had severally taxed as well Fen, Drayton, Samsey, Over-Wivelingham, Rampton, Cottenham, and nine other Towns within the County of Cambridge, out of the Isle, as the Inhabitants of the said Isle, and the tax was general, sc. so much of one Town, and so much of another, and sic de singulis.1
And in this Case two Questions were moved: 1. If the Commissioners of Sewers might by force of their Commission make a new River, or not.
2. If such general taxation upon the Towns was lawful, or not.
As to the first, it is to see what might have been done by the Common Law before any Statute made thereof. And it is to known, That by the Common Law, before the Statute of 6 Hen. 6. cap. 5. the King of Right ought to save and defend his Realm, as well against the Sea, as against the Enemies, that the same be not drowned or wasted: And also to provide, that his Subjects have their passage through the Realm by Bridges and Highways in safety. And therefore if the Sea-walls be broken, |[141 b] or the Sewers or Gutters are not scoured, that the fresh waters cannot have their direct course, the King ought to grant a Commission to enquire and to hear and determine these defaults. Which Commission appeareth in the Register, amongst the Commissions of Oyer and Terminer; in which it is said, Nos eo quod ratione dignitatis nostrae Regiae ad providend’ salvationi Reg’ nostri circumquaque sumus stricti, &c.2 And with that agreeth the Statute of 6 Hen. 6. cap. 5. and the Statute of 23 Hen. 8. Cap. 5.
And see a notable Precedent Pasch. 44 Edw. 3. Midd. 2. cor’ Rege, praecept’ est vicecom’ quod distringat A. B. & alios quod ipsi defectus walliarum erga terras suas reparant, et si ipsi sufficientes non fuerunt, quod distrin’omnestenentesterrar’, &c. qui defension’, commod’, salvamen, vel damnum ratione reparat’ seu non reparation’ walliae praed’ habent seu aliquo modo habere poterint, ita quod quilibet tenentium praed’ juxta quantitatem tenurae suae ibid’ contributionem praefat’ A. B. et aliis ad wallias illas faciend’ & reparandas faciant indilate:3 Which Record was before any Act of Parliament that limited any form of Commission.
The second thing observable in the said Commission at the Common Law, is this clause, Ad hujusmodi wallias, fossata, gutterus, sueras, pontes, calceta, et gurgites in locis necessariis reparand’ & quotiescunque et ubi necesse fuerit de novo facienda:4 By which it appeareth that by the Commission in the Register at the Common Law, that the ancient walls, gutters, or Sewers might be repaired or new made; but no new walls, gutters, or Sewers, by force of the said Commission might be made. Then it is to see in what cases the Statutes have made provision in these cases. And it is to know, That the Statute of 6 Hen. 6. cap. 5 doth enlarge the said Commission which was at the Common Law: for where these words (de novo facienda)5 refer onely to old Walls, Gutters, Sewers, &c. the said Act hath these words & eadem et alia quotiescunque, et ubi necesse fuerit de novo facienda;6 which words (et alia)7 being added to the former Commission, give to the Commissioners power to make new Walls, Gutters, Sewers, &c. but this Act did not endure but ten years; and by 18 Hen. 6. cap. 10 the like Commission was established for ten years; and by 23 Hen. 6. cap. 9. for fifteen years; and by 12 Edw. 4. cap. 6. for fifteen years; and by 4 Hen. 7. for twenty-five years; and by 6 Hen. 8. c. 10. for ten years, and until the next Parliament. And afterwards the Statute of 23 Hen. 8. cap. 5. was made, which reciteth none of the former Acts as the others do, but enacteth, That there shall then after a Commission of Sewers “according to the manner, tenor, form, and effect hereafter ensuing,” and rehearseth the form of the Commission de verbo in |[142 a] verbum:8 which Commission omiteth the said words (& alia) and followweth the Commission in that point which was at the Common Law. The words of the Act of 23 Hen. 8. being, “And also to reform, repair, and amend the said Walls, Ditches, Banks, Gutters, Sewers, &c. and the same (omitting these words, and other) as often, and where need shall be, to make new.” And the former clause concerning execution of the former Statute and Ordinances, is restrained with these words (touching the premises,) which refer onely to repair the old Walls or Sewers, or to make them new. And also a subsequent clause, That all and every Statute, &c. heretofore made concerning the premises, (which restraineth that clause ut supra9 ) not being contrary to this present Act, nor heretofore repealed, shall stand and be good and effectual for-ever. So that it was Resolved by the Justices, That by force of the said Commission founded upon the Act of 23 Hen. 8. the Commissioners could not make the said new River out of the main land for four causes.
1. That this Act doth prescribe the manner and form of the Commission in express words, which extends onely to the reparation and new making of old walls, gutters, &c.
2. That these words, et alia, which were included in the statue of 6 H. 6. and all the said Acts are left out of this commission.
3. All the former Acts were for a time, but this Act which establishes this Commission, is made perpetual by the statute of 3 Edw. 6. c. 8. and therefore it shall be hard to enlarge it beyond the words, and to give power to Commissioners to try inventions at the charges of the Country, which perhaps shall never take good effect, but via trita est tutissima.10
4. It appeareth by the Register in the writ of Ad quod damnum,11 fo. 252. and F. N. B. 225E. That if an old Ditch or Trench coming from the Sea to a Town, by which Boats or Vessels use to pass to the said Town; now if it is stopped by the outrage of the Sea, and a man would sue to the King to have leave to make a new trench, and to stop the old trench, he ought first to sue Ad quod damnum, to know what damage it shall be to the King or others: By which, and by the Writ in the Register de antiqua trenchea obstruenda et nova facienda seu habenda,12 it appeareth that no new trench or river which runneth to the Sea, can be made without the writ of Ad quod damnum, and thereupon to obtain the Kings licence to do it. For if any Commissioners might do it ex officio,13 great inconvenience thereupon for private gain as well as for publick damages as stopping of Havens (which are the gates of the Kingdom), |[142 b] and other common Rivers, as particular nuisance and prejudice to private men, by drowning of their lands and Inheritance, And therefore such new Rivers cannot be made without the Kings Licence, grounded upon a Writ of Ad quod damnum. See Vide the Writ of Ad quod damnum in such case, quia optimum.14
But it was resolved, That new Inventions, as of an artificial mill to cast out the water, or of a great River out of the main Land, and other the like, are not warranted by the said Commission upon the said Act of 23 H. 8. quia nihil semel inventum est et perfectum;15 So when an old Sewer is newly to be made or cleansed, some small alteration in respect of the natural change of the current, or otherwise for the publick good of such place (and so in the like cases) may be made. So when an old wall by the extreme rage of the water is broken, to preserve the lands withinthesame Level from inundation, another wall, in case of inevitable necessity for the publick good of that part, may be made to defend the people and their Lands within the same Level. For this manner of defence by walling is no new invention, but the old way and mean well approved of by experience, and upon the matter it is but a new making of the old wall in a place by inevitable necessity more fit than the other. But If by the timely reparation of the old wall, the extreme danger may be avoided, no other ought to be made; for si assuetis mederi possis, nova non sunttentanda:16 but when new inventions are proposed, as is aforesaid, if they are apparently profitable, no owner of the land there will deny to make contribution for his advantage; and then the same ought to be made by a voluntary consent, and not by constraint by force of the said Commission of Sewers upon the said Act of 23 H. 8. But sometimes when a publick good is pretended, a private benefit is intended. And if any such new invention is in truth (quod raro aut nunquam fit)17 good for the Commonwealth, and yet no consent can be obtained for the making of it, then there is no remedy but to complain in Parliament, and there to provide relief, as Sir John Popham, late Chief Justice of England, did, who exhibited a bill in Parliament anno 3 Jac. for making a new River in the said Isle, which he himself upon his great charge begun, knowing that without an Act of Parliament, none could be forced by force of the Commission of Sewers, to contribute to such new attempt. But the Bill was utterly rejected.
Also, It was Resolved that none can be taxed towards the reparation, but those who have prejudice, damage, or disadvantage by the said nuisances or defaults, and who may have |[143 a] benefit and profit by the reformation orremoving of them. Also the Tax, Assessment, and charge ought to have these qualities. 1. It ought to be according to the quantity of their lands, tenements, and rents, and by number of acres and perches. 2. According to the rate of every persons portion, tenure, or profit, or of the quantity of the Common of pasture, or of fishing, or other commodity. And therefore it was clearly Resolved by them, That the said tax generally of a several sum in gross upon a Town is not warranted by their Commission, but it ought to have been particular, according to the express words, upon every owner or possessor of lands, tenements, rents, &c. observing the qualities aforesaid.
And it is to be observed, That there are three manner of Statutes which concern Sewers: The first consisting in defendendo et reparando wallias, seweras, &c.18 The 2. in destruendo et amovendo nocumenta, &c.19 The 3. which concerneth both the points, tam in destruendo quam in defendendo.20 Of the first sort are Magna Charta, c. 15 & 16. 6 Hen. 6. c. 5. 18 Hen. 6. c. 10. 23 Hen. 6. c. 9. 12 Edw. 4. c. 6. 4 Hen. 7. c. 8. 6 Hen. 8. c. 10. Of the second sort are Magna Charta, c. 23. 25 Edw. 3. c. 4. 45 Edw. 3. c. 4. 1 Hen. 4. c. 12. 9 Hen. 6. c. 9. 12 Edw. 4. c. 7. of the third sort of Statutes, which concern both the former sorts, are 23 Hen. 8. c. 5. 25 Hen. 8. c. 10. 3 Edw. 6. c. 8. and 13 Eliz. c. 9.
[1. ][Ed.: God, the leader, Eureka.]
[2. ][Ed.: The law repays you what is just, by the mouth of the judge.]
[3. ][Ed.: St. Jerome: Justice did not know a father, mother, or brother, and did not take on a personality; but it imitates God.]
[4. ][Ed.: It belongs to the office of the justices to do justice to everyone pleading before them.]
[5. ][Ed.: To God, to the Country, to you.]
[6. ][Ed.: Psal. 90. vers. 17.]
[7. ][Ed.: Truth blushes to be hidden, and therefore she fears nothing more than not being related in public, and wants to be placed in the light; and if someone hides or conceals her, it is most equitable to expose her to the eyes of all men.]
[8. ][Ed.: Only to argue until the truth is found, and when the truth is found then to give judgment.]
[9. ][Ed.: truth is lost by too much altercation.]
[10. ][Ed.: truth is (in) simple speech.]
[11. ][Ed.: A true bill, or an indictment or other presentment, asserted to by a Grand Jury.]
[12. ][Ed.: a work without precedent.]
[13. ][Ed.: the display [or maintenance] of this work is proof of charity.]
[14. ][Ed.: as a world within a world;]
[15. ][Ed.: In the year of our Lord 1349 and in the twenty-third year of King Edward III, while the great plague reigned, this cemetery was consecrated, etc., in which and within the bounds whereof were buried the bodies of more than fifty thousand dead.]
[16. ]Psal. 68.
[17. ][Ed.: out of suitability and worthiness.]
[18. ][Ed.: that men should not be deterred from pious and good works.]
[19. ][Ed.: that the mouth which speaks iniquity should be stopped.]
[20. ][Ed.: that monsters are begotten on account of the corruption of some principle.]
[21. ][Ed.: we are unaware of many things which would not be hidden if we were more familiar with reading of the past:]
[22. ]1 R. 3.c.9.
[23. ][Ed.: to twist the ingenuity of those learned in the law,]
[24. ][Ed.: (in) chief, (a freehold held directly from the crown).]
[25. ][Ed.: transcend the art of jurisprudence.]
[26. ][Ed.: An answer to defend against a claim to possess land.]
[27. ][Ed.: the crime of plunder.]
[28. ][Ed.: A quotation from Psal. 109. vers. 10.]
[29. ][Ed.: Tales of so many of those standing by; a tale being a group of men summoned by the Court to fill an under-staffed venire.]
[30. ][Ed.: But it is better to calm the troubled waves (an allusion to Virgil, Aeneid, 1. 135.)]
[31. ][Ed.: Fermors are tenants for life or for years; later associated with agricultural holdings.]
[32. ][Ed.: that a thing should rather avail than perish.]
[33. ][Ed.: for the moiety, etc. of a church.]
[34. ][Ed.: but it is held or agreed in our books or it is held or agreed in (books of) terms (i.e. the year books).]
[35. ][Ed.: the task will exceed the matter.]
[36. ][Ed.: orally (literally, “with live voice”).]
[37. ][Ed.: the living voice has I know not what efficacy,]
[38. ][Ed.: on the day.]
[39. ][Ed.: Coke refers here to the third part of the Reports.]
[40. ][Ed.: Register of the Chancery.]
[41. ][Ed.: as the workshop of justice,]
[42. ][Ed.: Writs are formulated like rules of law, which briefly and in a few words expound and explain the intention of the maker, just as rules of law briefly state the matter as it is, etc. Some are formed upon certain causes and (issued) of course, and are granted and approved by the common council of the whole realm, and these can in no way be changed without their consent and will.]
[43. ][Ed.: Mirror of Justices, written, probably, circa 1290, although its first printing was long after Coke wrote this preface, in 1642.]
[44. ][Ed.: See book I, ch. 20, § ‘Who took . . .’, and Book II, ch. 66, § ‘Also that no one . . .’.]
[45. ][Ed.: And also for this intent and purpose there was composed, by a sage and discerning man, a book called Natura Brevium (the Nature of Writs).]
[46. ][Ed.: In Praise of the Laws of England.]
[47. ][Ed.: who had liked their errors,]
[48. ][Ed.: Of Feudal Words, the Word Fee.]
[49. ][Ed.: Stephen Pasaverinus, a man of excellent skill, gave me a little English book called Littleton, in which are expounded the feudal laws of England, written so disorderly, absurdly, and inelegantly that it may easily appear to be true what Polydore Virgil wrote in his History of England, struggle with the nonsense in this book with ill will and with the inclination of challenge.]
[50. ][Ed.: they want to be doctors of law without knowing what they speak or of what they affirm,]
[51. ][Ed.: who vituperate the things of which they are ignorant.]
[52. ][Ed.: but it is more satisfactory to seek the sources than to follow the streams.]
[53. ][Ed.: It is not to be understood that one may not have counsel of counters and other learned men for their fee,]
[54. ][Ed.: serjeants at law.]
[55. ][Ed.: serjeants of the peace (or) at the peace.]
[56. ][Ed.: serjeants of the law, or at law, or in the laws, etc.]
[57. ][Ed.: counters.]
[58. ][Ed.: Amongst the pleas of the parliament held at Ashridge in the nineteenth year of Edward I.]
[59. ][Ed.: serjeants expert in the laws and customs of England, etc.]
[60. ][Ed.: to learn.]
[61. ][Ed.: learned in the law,]
[62. ][Ed.: in the roll of the parliament (held) on the morrow of the Epiphany in the twentieth year of Edward I, roll 5, on the dorse (the reverse side of the roll).]
[63. ][Ed.: Concerning attorneys and apprentices. The lord king enjoins John of Mettingham and his fellows that they should by their discretion provide and ordain a certain number from each county, etc.]
[64. ][Ed.: among the common pleas held in the husting of London on Monday, the feast of St. Clement the Pope, in the twenty-third year of King Edward the third after the conquest, in the year of our Lord 1348: I, John Tavie, esquire, bequeath my soul to God, etc. Also I bequeath all my tenements with all the appurtenances which I have in the south part of the parish of St. Andrew, etc. to Alice my wife for the whole term of her life, and that after the decease of the aforesaid Alice all that inn in which the apprentices of the law are used to dwell shall be sold by my executors, if they should survive, etc., and from the money thereby received they should find one suitable chaplain to celebrate for my soul, etc. so long as the money lasts. Also I bequeath all that tenement in which I live, with three shops, after the death of the selfsame Alice, towards the fabric of St. Andrew’s church.]
[65. ][Ed.: Writ by which a life tenant or other holders of a limited fee seeks lands lost through non-appearance at an earlier proceeding.]
[66. ][Ed.: Writ to enforce an earlier judgment or other matter of record.]
[67. ][Ed.: The king, etc. to William Herle, greeting. Because by the advice of our council we have ordained that you should take upon you the estate and degree of a serjeant at law in the quindene of Michaelmas next following, we command you with firm injunction that you order and prepare yourself to undertake the aforesaid estate and degree at that day in form aforesaid, and this under pain of one thousand pounds. Witness myself, etc.]
[68. ][Ed.: to the estate and degree of a serjeant at law:]
[69. ][Ed.: at the creation of the serjeants of the law, etc.]
[70. ][Ed.: by the king’s grace;]
[71. ][Ed.: by right of law.]
[72. ][Ed.: an estate and a degree.]
[73. ][Ed.: And away with them who strew antiquity with planks of lies.]
[74. ][Ed.: and the time has come to enter the inner sanctum of truth and justice.]
[75. ][Ed.: The manner of learning is, when you see yourself to be ignorant: Study, not only to practice; Study that you may be wise.]
[* ]The pleadings of the case are filed at Mich. 10 Jacobi Rot. 574.
[1. ][Ed.: forasmuch as they.]
[2. ][Ed.: broke and entered.]
[3. ][Ed.: in someone else’s soil.]
[4. ][Ed.: relative, and exist at the same time.]
[5. ][Ed.: by prescribed words and in certain terms.]
[6. ][Ed.: I have given, I warrant,]
[7. ][Ed.: which are legal words and incompatible, etc.]
[8. ][Ed.: I found, erect, etc.]
[9. ][Ed.: Clause of the grant: “to have”.]
[10. ][Ed.: in right of his hospital.]
[11. ][Ed.: and because right is the judge of itself and of what is crooked.]
[12. ][Ed.: the words of a royal charter in equity bear their own interpretation;]
[13. ][Ed.: the innermost parts (lit. bowels) of the cause, and an exposition which is born in the innermost parts of the cause is the most apt and the strongest in law.]
[14. ][Ed.: in future, and nothing is in the present.]
[15. ][Ed.: concerning the future.]
[16. ][Ed.: in Chief, that is, a tenancy held directly from the crown.]
[17. ][Ed.: The wise man begins with the end, and what is first in intention is last in execution.]
[18. ][Ed.: by words of the present tense.]
[19. ][Ed.: by force of the word, to found is nothing other than to lay or place a foundation, etc.]
[20. ][Ed.: 1 Kings, ch. 6, v. 37: In the first [fourth] year was the foundation of the house laid, and in the eleventh year was all the work on the house finished.]
[21. ][Ed.: 1 Kings, ch. 16, v. 34: In those days Hiel of Bethel laid the foundation of Jericho in Abiram his firstborn, and in Segub his youngest son he set up the gates.]
[22. ][Ed.: He put up walls for us, and erected our houses (quoting Ecclesiasticus, chap. 49, v. 17.)]
[23. ][Ed.: I will establish his throne.]
[24. ][Ed.: works of labour, and of the labour of builders.]
[25. ][Ed.: so good a work.]
[26. ][Ed.: I found, erect, and establish.]
[27. ][Ed.: whence it follows,]
[28. ][Ed.: therefore.]
[29. ][Ed.: in the sixth year of his reign,]
[30. ][Ed.: to a certain chaplain celebrating divine service at the altar of the Blessed Mary in the church of St. Magnus, London, every day, for the wholesome estate of the aforesaid Robert and Joan his wife, etc., to have and to hold for ever unto the same chaplain and his successors, being chaplains of the aforesaid chantry and celebrating divine service in the aforesaid church at the aforesaid altar for the wholesome estate, etc., in accordance with the ordinance to be made by the aforesaid Robert in that behalf, etc.]
[31. ][Ed.: to a certain chaplain,]
[32. ][Ed.: to a certain abbot,]
[33. ][Ed.: in being;]
[34. ][Ed.: in accordance with the ordinance to be made by the aforesaid Robert Ramsey,]
[35. ][Ed.: to make and erect a chantry, etc.]
[36. ][Ed.: in accordance with ordinance to be made by the aforesaid Robert Ramsey;]
[37. ][Ed.: in the future.]
[38. ][Ed.: to have unto him and his successors.]
[39. ][Ed.: at one and the same time.]
[40. ][Ed.: to found, erect, make;]
[41. ][Ed.: Note.]
[42. ][Ed.: to found, erect, and establish,]
[43. ][Ed.: in accordance with the ordinance to be made by Robert Ramsey,]
[44. ][Ed.: in the text above,]
[45. ][Ed.: the record being inspected,]
[46. ][Ed.: words are to be taken with the effect,]
[47. ][Ed.: in the present.]
[48. ][Ed.: Writ to enforce a judgment or other matter of record.]
[49. ][Ed.: A prebendal corporation; usually a charitably or ecclesiastically endowed corporation.]
[50. ][Ed.: operative words.]
[51. ][Ed.: a university or college (i.e. corporation).]
[52. ][Ed.: a touchstone,]
[53. ][Ed.: a certain hospital of St. Mary of Bristol for a master and convent for all time, etc. were incorporated by the name of the Master and Convent of the Hospital of St. Mary of Bristol.]
[54. ][Ed.: The warden and vicars of the college of vicars in the choir of Hereford are, and since time immemorial were, incorporated by the name of the Warden and Vicars of the College of Vicars in the Choir of Hereford:]
[55. ][Ed.: The master, brethren and sisters of the fraternity or guild of the nine orders of holy angels next Brainford....]
[56. ][Ed.: that in the vill of Brainford there is a certain fraternity, incorporated within time of memory, of a master, brethren and sisters of the nine orders of angels next Brainford Bridge, without this that there is any such fraternity: (as the plaintiffs allege). . . . that there is a certain fraternity incorporated, etc.]
[57. ][Ed.: that he and all his predecessors being masters of the aforesaid hospital from time immemorial etc. were named and known etc. both by the name of master of the hospital of St Lazarus of Burton of the order of St Lazarus of Jerusalem in England and also by the name of master of Burton St Lazars of Jerusalem in England:]
[58. ][Ed.: named and known:]
[59. ][Ed.: I found, erect, etc.]
[60. ][Ed.: a guild merchant.]
[61. ][Ed.: whereas among other liberties [granted] to the citizens of the city of Winchester by the charters of our forebears, formerly kings of England, which by our charter we have confirmed, it is granted to them that none of them who were in the guild merchant should plead outside the walls, etc.]
[62. ][Ed.: an incorporated company or fraternity.]
[63. ][Ed.: to the dyers of London.]
[64. ][Ed.: a guild merchant.]
[65. ][Ed.: prudent antiquity.]
[66. ][Ed.: tacitly.]
[67. ][Ed.: in kind.]
[68. ][Ed.: operative words.]
[69. ][Ed.: in the abstract,]
[70. ][Ed.: in the concrete,]
[71. ][Ed.: before the king (i.e. in the King’s Bench).]
[72. ][Ed.: of the hospital of King Edward VI of England.]
[73. ][Ed.: granted to the mayor, citizens and commonalty of London the mansion house calledBridewell, etc.].
[74. ][Ed.: the same king, so that his intention might take better effect.]
[75. ][Ed.: by the same letters patent willed and ordained that when the aforesaid hospital was so founded, erected and established, it should be named and called for ever King Edward VI of England’s Hospital of Christ of Bridewell and St. Thomas the Apostle, and that the mayor, commonalty and citizens of the aforesaid city should be governors, etc., and that the same governors should henceforth be a body corporate by the name of the Governors of the Possessions, Revenues and Goods of King Edward VI of England’s Hospital of Christ, Bridewell, and of St. Thomas the Apostle, etc.]
[76. ][Ed.: (and further pleaded) that no such hospital as is mentioned in the same letters patent was so founded, erected and established after the making of the aforesaid letters patent, etc.]
[77. ][Ed.: when it was so founded, etc.]
[78. ][Ed.: of the present (tense), namely, that the same governors henceforth be a body corporate by the name etc.]
[79. ][Ed.: Writ requiring an inferior court to render an unspecified judgement.]
[80. ][Ed.: in authority,]
[81. ][Ed.: in execution.]
[82. ][Ed.: in possibility.]
[83. ][Ed.: by impulse,]
[84. ][Ed.: in reality,]
[85. ][Ed.: in name.]
[86. ][Ed.: in authority, in possibility, or in name.]
[87. ][Ed.: that flesh begets flesh;]
[88. ][Ed.: volatilis (fowl), from the word volando (flying), because it has the potential ability to fly even though it has not yet the act of flight:]
[89. ][Ed.: rational,]
[90. ][Ed.: reason by impulse.]
[91. ][Ed.: King Henry V caused to be ordained and founded a certain house in a certain place or piece of soil at Shene which he wished to be called God’s House of Bethlehem of Shene, and founded and erected that house as far as he could...andfor that purpose gave the place and soil of Shene aforesaid as the first foundation, etc.]
[92. ][Ed.: Chronicle of Chronicles.]
[93. ][Ed.: Master of the Knights of the Temple and his Brethren in England, in the year.]
[94. ][Ed.: but in the reign of.]
[95. ][Ed.: Jordan Biset, a pious and well moneyed man.]
[96. ][Ed.: a certain piece of land called the Savoy.]
[97. ][Ed.: to the intent that they might erect, found and establish a certain hospital in and upon the aforesaid piece of land called the Savoy,]
[98. ][Ed.: to found a certain hospital of one master and five chaplains upon the aforesaid piece of land called the Savoy, and when the hospital was so founded,]
[99. ][Ed.: the Master and Chaplains of the Hospital of the late King Henry VII of England of Savoy.]
[100. ][Ed.: prior of the Hospital of St. John of Jerusalem in England:]
[101. ][Ed.: Master of the Knights of the Temple of Jerusalem in England.]
[102. ][Ed.: Prior and brethren of St. Mary of Mount Carmel in England.]
[103. ][Ed.: of Mount Calvary without Aldgate, London.]
[104. ][Ed.: in the abstract,]
[105. ][Ed.: so much the more so, or it follows that,]
[106. ][Ed.: to recite this is to confute it.]
[107. ][Ed.: beginning foundation,]
[108. ][Ed.: perfecting foundation,]
[109. ][Ed.: as to the capacity and ability,]
[110. ][Ed.: as it were a foundation of capacity.]
[111. ][Ed.: by the name of the abbot of the monastery of St John of Colchester, etc.]
[112. ][Ed.: but with respect to the endowment,]
[113. ][Ed.: properly, a foundation is as it were the giving of a fundus, (piece of ground).]
[114. ][Ed.: the foundation of the endowment or collation, and by the name of fundus is contained the building and the field;]
[115. ][Ed.: If abbots, priors, keepers of hospitals and of other religious houses founded by the king himself or his forebears should henceforth alienate the tenements collated to them by himself or his forebears, etc.]
[116. ][Ed.: but if the house was founded by an earl, baron, or other persons, the person by whom, etc. the tenement so alienated was collated shall have a writ to recover it, etc.]
[117. ][Ed.: A writ to recover a gift given to a monastery for charitable purposes and used otherwise.]
[118. ][Ed.: command (the defendant) that he render (to the demandant) the messuage which was collated to the same house.]
[119. ][Ed.: because to found [in that sense giveth nothing else but] a fundus (piece of ground).]
[120. ][Ed.: The hospital of St Giles of Burton Lazars was founded by the ancestors of R., son of J., for the support of lepers and other poor and sick people there, as wholly temporal and in no way spiritual.]
[121. ][Ed.: whereas our hospital of the Holy Innocents next Lincoln, of the foundation of our forebears, being kings of England, etc., was endowed for the support of the poor and sick staying in the same hospital.]
[122. ][Ed.: founded . . . endowed]
[123. ][Ed.: with all their might to the contrary.]
[124. ][Ed.: I found, erect, establish, etc.]
[125. ][Ed.: I found, erect, etc.]
[126. ][Ed.: who does something through another is deemed to do it himself.]
[127. ][Ed.: Literally “to have,” the clause in the Letters Patent assigning a right to hold the powers for some purpose.]
[128. ][Ed.: in right of the hospital,]
[129. ][Ed.: in being,]
[130. ][Ed.: in right of their corporation,]
[131. ][Ed.: keeper of the altar,]
[132. ][Ed.: in right of the altar.]
[133. ][Ed.: by the custom of clerks,]
[134. ][Ed.: legally necessary,]
[135. ][Ed.: the law comprehends many profitable and authoritative things in few words.]
[136. ][Ed.: changing their opinion.]
[137. ][Ed.: no one disagreeing.]
[138. ][Ed.: It is the utmost charity to do justice to all persons at all times when it is needed.]
[139. ][Ed.: provided always that the pious and most esteemed wish of the donors should in every respect be kept and carried out and preserved as sacred for ever.]
[140. ][Ed.: with unanimous consent.]
[141. ][Ed.: during good pleasure,]
[1. ][Ed.: and likewise concerning each.]
[2. ][Ed.: Inasmuch as by reason of our royal dignity we are strictly (bound) to provide for the safety of our realm, etc.]
[3. ][Ed.: the sheriff is commanded to distrain A. B. and others that they repair the defects in the sea-walls next to their lands, and, if they are not sufficient, to distrain all the tenants of the lands etc. who have or in any way might have defence, benefit, safeguard or damage by reason of the repair or non-repair of the aforesaid walls, so that each of the aforesaid tenants should without delay make contribution to A. B. and the others, according to the quantity of his tenure there, towards making and repairing those walls.]
[4. ][Ed.: For repairing such walls, ditches, gutters, sewers, bridges, causeways and weirs in necessary places, and as often and wherever need arises to renew them.]
[5. ][Ed.: to renew them.]
[6. ][Ed.: and as often and wherever need arises to renew them and make others new;]
[7. ][Ed.: and others.]
[8. ][Ed.: word for word:]
[9. ][Ed.: as above.]
[10. ][Ed.: the beaten path is the safest.]
[11. ][Ed.: Royal writ directing the sheriff to ascertain the damage that would be done to a town, if a right to hold a fair is granted in the town.]
[12. ][Ed.: for obstructing an old trench and making or having a new one,]
[13. ][Ed.: by virtue of office,]
[14. ][Ed.: because it is the best.]
[15. ][Ed.: nothing is perfect at the time when it is invented;]
[16. ][Ed.: if you can put right the familiar things, you should not try out something new;]
[17. ][Ed.: which is rarely or never done.]
[18. ][Ed.: defending and repairing walls, sewers, etc.]
[19. ][Ed.: destroying and removing nuisances, etc.]
[20. ][Ed.: both in destroying and in defending.]