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Part Eleven 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 Eleven of the Reports
The Eleventh Part of Coke’s Reports was published in 1615, and it was the last volume to be published during Coke’s lifetime. It was originally published entitled La unzime part des reports de Sr. Edw. Coke chivalier, chiefe justice Dengleteere des plees destre tenus devant le roy mesme assignee & del Counseil Prive d’Estate, des divers resolutions & judgments donez sur solemnes arguments & avec grand deliberation & conference des tres-reverend judges & sages de la ley, des cases en ley queux ne fueront unques resolve ou adjudges par devant, et les reisons & causes des dits resolutions & judgments. Publié en la unziesme an de treshaut et tresillustre Jaques roy Dengleterre, France, & Ireland, & de escosse le 49. Le fountaine de tout Justice & la vie de la Ley. In English, The Eleventh 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. The topics essentially are unchanged from prior parts.
Epigrams from the Title Page:
Prov. cap. 11. vers. 3.
Simplicitas justorum diriget eos; & supplantatio perversorum vastabit eos.1
Prov. cap. 12. vers. 3.
Non roborabitur homo ex impietate; radix autem justorum non commovebitur.2
Compendaria res improbitas, virtus longa. Compendia, sunt dispendia.3
(Preface) Deo, Patriae, Tibi.4
Of writing of many Books, faith Solomon, there is no end; which is understood of such as are written to no end: I mean therefore (Learned Reader) by way of Preface to propose unto you in few words, the substance of the Cases in this eleventh Work, whereby you will easily collect the end and scope of the same.
I. In the first place I report the Case of the Lord LaWare, resolved in Parliament holden in the 39th. year of the Reign of Queen Elizabeth wherein appeareth what Disabilities are personal and temporary, and barreth not the Heir to claim Honour and Dignity from that Ancestor so disabled, or from any other Ancestor paramount him; and also what Disablities are in Law absolute and perpetual.
II. In the second place followeth Auditor Curles Case, resolved in the 7th. year of the most happy Reign of King James: in this case is resolved, That Judicial Offices cannot be granted in Reversion, but that generally such Grants by the Common Law of England are utterly void, and therefore though this Case be calculated for the Meridian of the Court of Wards, yet by computation it may serve for all the Judicial Courts of England: a necessary Case I assure you to be published, and the Law to be put in ure in these days: in which case are also handled some other particular Points concerning the Office of the said Auditorship in the Court of Wards.
III. Then cometh in Sir John Heydon’s Case, adjudged in Trinity-Term 10 Regis Jacobi; wherein is perspicuously expressed, where Damages shall be severally assessed by the Jurors; and where the first Jury between the Plaintiff and one of the Defendants shall assess Damages for all the Defendants, and where not: whereby all the Books are well reconciled; for want of right Understanding whereof, many Judgments have been arrested, many that have been given, have been overthrown by Writ of Error, to the great charge, delay and vexation of the Party grieved.
IV. After this appeareth the Case of Priddle and Napper in Michaelmas-Term 10 Jacobi Regis; and therein is set down what Unity is sufficient within the Statute of 31 Hen. 8. to discharge the Land of Tithes, with divers other Points concerning the same.
V. Next after Doctor Graunts Case presenteth it self, adjudged Michaelmas-Term 11 Jacobi Regis, whereby you may see where Parsons and Vicars may have certain Tithes for Houses in Cities, Boroughs, &c.
VI. Then you shall read the Case of Sir Henry Nevil, adjudged Michaelmas-Term 11 Jacobi Regis: and understand that a Customary Mannor may be holden by Copy, and that such a Lord may hold Courts, and grant Copies.
VII. Now cast your Eye upon Doctor Ayrayes Case, adjudged Michaelmas-Term 11 Regis Jacobi; wherein you shall perceive what be material misnamings of Corporations, either to avoid their own Grants by mistaking their own Name, or Grants made to them: a Case that concerns the Good and Quiet, not only of Colledges and other Coporations, but of their Farmors, Lessees, and other that claim under them.
VIII. Then is offered to your view Henry Harpurs Case, resolved Trinity-Term 12 Jacobi Regis; wherein Men are directed how the Kings Tenant that holdeth by Knights Service in Capite, may dispose two parts of his Lands, &c. for the payment of his Debts, advancement of his Wife, preferment of his younger Children, or otherwise according to Law, and leave no trouble or question after his Death, between his Heir and the Devisees; the want of Knowledge whereof hath tended, if not to the undoing, yet to the great hinderance of many Families.
IX. Next to this have I reported Henry Pigots Case, adjudged Trinity-Term 12 Jacobi Regis, to instruct the Reader what alteration of any Deed after the ensealing and delivery, and by whom, avoideth the Deed.
X. By this time I presume you have expected and desired to see the Case of Alexander Poulter, that most wickedly and feloniously burnt the good Town of Newmarket, who upon consideration of many intricate, and ill penned Statutes, in the end was clearly (as you shall perceive) ousted of his Clergy; wherein many notable and observable Points concerning Clergy, which by a mean concern the Life of Man, are resolved, Mich. 12 Jacobi.
XI. And lest there should be error in bringing of a Writ of Error, Metcalfes Case, Michaelmas-Term 12 Jacobi hath gotten the next place: wherein is plainly discussed, upon what Judgment or Award a Writ of Error doth lie, and upon what Judgment or Award it lieth not.
XII. And to avoid error in imposing of Fines upon Contempts in Leets, and other Courts of Record. In the Case of Richard Godfrey Esq; is clearly resolved, when the Fine ought to be several, and when joint, and when and how a Fine unlawfully imposed, may be avoided, and when the Lord may distrain for Court Leets, Mich. 12 Jac.
XIII. The next room Richard Lifords Case hath justly gotten, for therein is resolved, what interest the Lessee hath in Timber Trees, when they are not excepted, and what interest in that case the Lessor hath: what and whatmanner of interest the Lessor hath in Trees excepted, and whether in that case by a general Grant of the Reversion, they pass to the Grantee, and much necessary Learning concerning that Matter, Mich. 12 Jac.
XIV. Then have you the Case of the Tailleurs of Ipswich, a necessary Case for Poor Tradesmen, that many times are by Ordinances made by Incorporations, (whereby the Publick Good is pretended, and Private Respects intended) barred or hindred of the Freedom of their Trade, Mich. 12 Jac.
XV. Edward Savels Case taketh up a very little standing, and shortly sheweth that an Ejectione firmae, (that now is grown so common) lieth not for a place known, but of certain Acres of Land, Meadow or Pasture, &c. Michael. 12 Jac.
XVI. And Benthams Case in as few Words as the other, sheweth how in some case the omission of Matter material in a Verdict may be salved, Mich. 12 Jac.
XVII. I could not keep back Doctor Fosters Case, wherein, upon mature consideration had of all the Statutes of Recusants, a clear way is opened, for their just and speedy Conviction according to the Laws. A Case that concerneth the Glory of God, and the Honour of our Religion, Mich. 12 Jac.
XVIII. And justly doth the Case of Magdalen-Colledge in Cambridge challenge the next place, which tendeth to the maintenance of Gods true Religion, the advancement of Liberal Arts and Sciences, the supportation of the Ecclesiastical State, the preservation and prosperity of those two famous Sisters, the Universities of Cambridge and Oxford, and of all the Colledges within the Realm, and the establishment of Hospitals, and provisions for the Poor, adjudged Paschae 13 Jacobi Regis.
XIX. And in course of time doth Lewes Bowles Case come, wherein is clearly resolved the true operation and sense of the Clause in Leases, without Impeachment of Waste; and what interest the Lessee hath in the Timber of an House prostrated by Tempest, adjudged Pasch. 13 Jac. Regis.
XX. And though it cometh not in sequence of time, yet the Case of Monopolies cannot come out of time, wherein divers things concerning Monopolies, are clearly resolved, and worthy to be published, Trin. 44 Eliz.
XXI. And I could not keep back the Earl of Devonshires Case, resolved Hill. 4 Jacobi, whereby the Prerogative of the King appeareth; That his right of Restitution dieth not by the death of the Party that doth him wrong: the end whereof is, that the Kings Toll may come to the right Mill.
XXII. And lastly, The Case of J. Bagge, adjudged Trin. 13 Jac. Regis, wherein is resolved, where a Writ of Restitution for a Freeman of an Incorporation, being disfranchised, doth lie: and incidently, who have power to disfranchise, and what be sufficient causes of disfranchisement.
This Eleventh Work (Learned Reader) I have published in the tempest of many other important and pressing Business; and therefore could not polish them as I desired.
If I might judge, I should say, that the Matter of these are not inferiour to any of the other. The end of this Edition is, That God may be glorified, his Majesty honoured, the Common Good encreased, the Learned confirmed, and the Student instructed.
The Lord de la Warre’s Case.
(1596–1597) 39 Elizabeth I
In the Court of Parliament.
First Published in the Reports, volume 11, page 1a.
Ed.: Thomas de la Warre was an hereditary member of the House of Lords. His son, William de la Warre, was barred for his life from holding any hereditary offices or titles, although the Queen had him sit as a puisne member, roughly, as a junior member, in the Lords. William’s son Thomas sought to be seated in the Lords. Coke represented de la Warre. In this case, the court construed the nature of a disability from office for life from a permanent disability. Finding William’s disability had been personal and not a barrier to his son, and that Thomas could hold more than one title at a time, Thomas was seated as a full member in the Lords.
At the Parliament holden 39 Eliz. the Case was such: Thomas la Warre, Knight, Lord la Warre, Son and Heir of William, Son and Heir of George, Brother and Heir of Thomas, Son and Heir of Thomas Lord la Warre, exhibited his Petition to the Queen to this effect, That whereas the said Thomas his Great Grand-father was called to Parliament by Writ of Summons, An. 3 H. 8. and afterwards the said Thomas the Besayel died; after whose death Thomas his son was called to divers Parliaments by Writs of Summons, and afterwards by Act of Parliament, An. 3 E. 6. for divers causes mentioned in the said Act, it was enacted, That the said William, during his life, should be disabled to claim or enjoy any dignity or Lordship in any Right, Estate, &c. by Discent, Remainder, or otherwise, and afterwards the said Thomas, son of Thomas, died; after whose death, the said William being so disabled, was not called to any Parliament by Writ of Summons, till Queen Elizabeth called him to Parliament by Writ of Summons, and sat as puisne Lord of the Parliament, and, afterwards he died. And now the said Thomas his son being called, this Parliament by Writ of Summons sued to the Queen, that he might have the place in Parliament of his Great Grand-father, viz. between the Lord Berkeley and the Lord Willoughby of Eresby: And the said Petition was endorsed in these words, Her Majesty hath |[1 b] commanded me to signify to your Lordships, That upon the humble suit of the Lord la Warre, she is pleased that the matter shall be considered and determined in the House. Robert Cecil. Which Petition being read in the Upper House of Parliament, the consideration thereof was committed to the Lord Burghley, Lord Treasurer, and divers other Committees; who at his Chamber in Whitehal, heard the Council Learned on both parties, in the presence of the two Chief Justices, and divers other Justices; and two Objections were made against the Claim of the said Lord la Warre.
1. Forasmuch as his Father was disabled by Act of Parliament to claim the Dignity, the Petitioner could not convey by him who was disabled, as Heir to his Great Grand-father, and by consequence he cannot have the place of his Great Grand-father, but his Fathers place. But it was resolved by the Justices, That there was a difference betwixt a Personal and Temporary disability and a disability absolute and perpetual: As where one is attainted of Treason and Felony, the same is an absolute and perpetual disability by corruption of Blood, for any of his posterity to claim any Inheritance in Fee-simple, as Heir to him, or to any Ancestor above him: but when one is but disabled by Parliament (without any Attainder) to claim the Dignity for life, the same is a personal disability for his life onely, and his Heir after his death may claim as Heir to him, or to his Ancestors above him.
The second Objection was, That the said William had accepted of a new Creation of the Queen, which dignity newly gained did discend to the Petitioner, which he could not wave, and therefore the Petitioner could not have other place than his Father had. To which it was answered and resolved, That the Acceptance of a new Creation by the said William could not hurt the Petitioner, because the said William was at that time disabled, and in truth was not a Baron, but onely an Esquire; so that when the old and new Dignity discend together, the old shall be preferred. Which resolution was well approved by all the Lords Committees, which was accordingly reported to the Lords of the Parliament, and allowed by them all.
Whereupon it was ordered by the Lords, That the Queen should be acquainted with it by the Lord Keeper of the Great Seal, which was done accordingly, and the Queen confirmed the same also: All which was ordered and entered accordingly; Whereupon, at the same Parliament the Lord De la Ware in his Parliament Robes was by the Lord Zouch (supplying |[2 a] the place of the Lord Willoughby, then within age) and the Lord Berkley also in their robes, brought into the House, and placed in his said place, viz. next after the Lord Berkley; Garter King of Arms attending upon them, and doing his office; And I was of Council with the Lord De la Warre.
The Case of the Tailors of Habits &c. of Ipswich.
(1614) Michaelmas Term, 12 James 1.
In the Court of King’s Bench.
First Published in the Reports, volume 11, page 53a.
Ed.: The Corporation of the Tailors of Ipswich was a guild incorporated under a charter from the King, giving them authority to regulate theirtrade. The guild barred anyone from practicing as a tailor in Ipswich, unless they had been approved by its master and wardens. William Seninge moved to Ipswich and practiced as a tailor. The guild sued Seninge in debt, seeking £3 13s 4d. The Court of Common Pleas declared that the common law will not allow a man to be prohibited from a lawful trade, the protections of the law are for those in the public trade and not family servants, but that the plaintiffs could recover nothing by their suit. For another case on restraint from the professions, see Dr. Bonham’s Case, p. 264, and on the restraint of trade, see Case of the Monopolies, p. 394.
Trin. 11 Jac. Regis in the Kings Bench, Magistri, Gardiani, et Communitas Scissorum et operatorum pannorum villae Gipwic’ in com’ Suff’,1 brought an Action of Debt for three pound, thirteen shillings and four pence against William Shening, and declared, That whereas the King by his Letters Patents had incorporated the Plaintiffs by the said name, and granted to them, That they should have plenam potestat’ et authoritat’ facere et constituere rationabiles leges, ordinationes et constitutiones, in script’ quae eis viderentur bon’, salubr’, util’, honest’ et necessar’ secundum eorum discretiones pro bono regimine et gubernatione, &c. societatis praed’, &c.2 and to set Fines and Amercements for breach of the said Laws, &c. And recited the Statute of 19 Hen. 7. 7. By which it is enacted, That no Master, Wardens, and Society of Crafts and Mysteries, take upon them to make any Acts or Ordinances, nor to execute any Acts or Ordinances, in exhaeredationem seu diminutionem praerogativae vel aliorum aliquorum, vel contra commune profic’ populi, nisi iidem actus et ordinationes examinat’ et approbat’ furent per Cancellar’, Thesaur’ Angliae, Capital’ Justic’ utriusque Banci, vel tres eorum vel aliter coram Justic’ Assisae in eorum itineribus, &c. sub poena forisfact’ 40l. pro quolibet tempore quo ipsi in contr’ facerent.3 And afterwards the said Corporation, in the fourth year, made divers Constitutions, and (amongst others) that no person exercising any of the said Trades within the Town of Ipswich praed’4 should keep any Shop or Chamber, or exercise the said Faculties, or any of them, |[53 b] or take an Apprentice or Journeyman, till they had presented them to the said Master and Wardens of the said Society, for the time being, or any three of them, and should prove that he had served seven years at the least, as an Apprentice, and before he shall be admitted by them to be a sufficient Workman; and if any offend in any part thereof, That he should forfeit and pay to the said Master and Wardens, and Society aforesaid, for every such offence five marks, and to levy the same by Distress, or Action of Debt, &c. The which (amongst others) was allowed by the Justices of Assise of the same County, according to the said Act of 19 H. 7. And that the said William Shening, Tailor, using the trade of a Tailor, after the said Orders made and ratified as aforesaid, the tenth of October in the tenth year of the King came to the said Town of Ipswich, and there used the Trade of a Tailor by the space of twenty days, before he had presented himself to the said Master and Wardens, or any three of them, or had made proof that he had served as an Apprentice for seven years in the said Trade, and before he was admitted by the said Master and Wardens, or any three of them, to be sufficient a Workman, per quod actio accrevit eisd’ Magistr’ Gardian’ et Com’5 to have of the said Henry the sum of three pound, thirteen shillings and four pence.
The Defendant pleaded that he was an Apprentice by the space of seven years, viz: 1 from the first of September, in the first year of the King till the second of September in the eight year to one Henry Backet in the art of a Tailor, &c. And that ninth of September, Anno 10. Anthony Penny, Esquire inhabitant in Ipswich, retained him to be his household servant to serve him for one year; And that within the same time, he by the Commandment of the said Anthony made divers Clothes and Garments for him, his wife, and children, as was lawful for him to do, which is the same use and exercise of the Trade of a Tailor, whereof the Plaintiffs have declared: Upon which the Plaintiffs did demur in Law. And in this case, upon Argument at the Bar and Bench, divers points were resolved.
1. That at the Common Law no man might be forbidden to work in any lawful Trade, for the Law doth abhor idleness, the mother of all evil, Otium omnium vitiorum mater,6 and chiefly in young men, who ought to their youth, (which is the time of their sowing) to learn lawful Sciences and Trades, which are profitable to the Commonwealth, and whereof they might gather the fruit in their old age, for idle in youth, poor in age; and therefore the Common Law doth abhor all Monopolies, which forbid any one to work in any lawful Trade; And the same appearth in 2 Hen. 5. 5b. a Dyer was bound that he should not use the Dyer’s craft for two years, and there Hull held, that the Obligation was against the Common Law, and (by God) if the Plaintiff were here, he should go to prison, till he pay a fine to the King: So, and for the same cause. If a Husbandman be bound that he shall not sow his land, the Obligation is against Law. And see 7 Edw. 3. 65b.; If he who taketh upon him to work be unskilful, his ignorance |[54 a] is a sufficient punishment to him; for, imperitia est maxima mechanicorum poena, et quilibet quaerit in qualibet arte peritos:7 And if any one taketh upon him to work, and misdoeth it, an Action upon the Case lieth against him. And the Statute of 5 Eliz. 4., which forbiddeth any person to use or exercise any Craft, Mystery or Occupation, if he hath not been an Apprentice by the space of seven years, was not enacted onely to the intent that Workmen should be skilful, but also that youths should not be nourished in idleness, but trained and brought up in lawful Sciences and Trades: And therefore it appeareth, that without an Act of Parliament, none can be in any wise retained to work in any lawful trade. Also the Common Law doth not forbid any person to use many Arts or Mysteries at his pleasure, Nemo prohibetur plures negotiationes sive artes exercere,8 until it was forbidden by Act of Parliament of 37 Edw. 3. cap. 6. scil. That the Artificers and people of Mystery tye every one to one Mystery, and that none use other Mystery but that which he hath chosen; but presently this restraint of Trade and Traffick was found prejudicial to the Commonwealth; and therefore at the next Parliament it was enacted, That all people should be as free as they were at any time before the said Ordinance.
2. That the said restraint of the Defendant, for more than the said Act of 5 Eliz. hath made, was against Law; And therefore for as much as the Statute hath not retained him who hath served as a Apprentice for seven years to exercise the Trade of a Tailor; the said Ordinance cannot forbid him to exercise his Trade, till he be presented before them, or till he be allowed by them to be a Workman; for these are against the Freedom and Liberty of the Subject, and are a means of Extortion in drawing moneys to them, either by delay, or some other subtle device, or of oppression of yong Tradesmen, by the old and rich of the same Trade, not suffering them freely to live in their Trade; And all this is against Law, and against the Commonwealth. But Ordinances for the well ordering and government of men of Trade and Mysteries are good, but not to restrain any one in his lawful Mystery.
3. It was resolved, That the said branch of the Act of 5 Eliz. is intended of publick use and exercise of a Trade to all who will come, and not of him who is a private Cook, Tailor, Brewer, Baker, &c. in the house of any for the use of a Family; And therefore if the said Ordinance had been good and agreeable to Law, such private exercise and use had not been within it, for every one may live in such private manner, although he hath never been an Apprentice in the Trade.
|[54 b] 4. It was resolved, That the Statute of 19 Hen. 7. 7. doth not strengthen any of the Ordinances made by any Corporation, with one so allowed and proved as the Statute speaketh, but leaves them to be affirmed as good, or disaffirmed as unlawful by the Law; the only benefit which the Incorporation getteth by such allowance is, That they shall not incur the penalty of forty pound mentioned in the Act, if they put in use any Ordinances which are against the Kings Prerogative, or the common profit of the people. And afterwards Judgment was given, quod querentes nihil caperent per billam.9
The Case of Monopolies.
(1602) Trinity Term, 44 Elizabeth I In the Court of King’s Bench.
First Published in the Reports, volume 11, page 84b.
Ed.: Early in Elizabeth I’s reign, a Statute was passed forbidding the importation of playing cards. Later, a monopoly was granted to Ralph Bowes to manufacture and sell playing cards, or to license others to sell them, in England, for twelve years. At the end of Bowes’ monopoly, the queen gave it, and the right to stamp his cards as legal, to Edward Darcy then for twenty-one years, in return for an annual payment of 100 marks. T. Allein, a London haberdasher, sold 180 gross ofplaying cards, without paying Darcy for the privilege or for the use of his stamp. Darcy sued Allein. Darcy was represented by Dodderidge, Fuller, Fleming, and Coke, as Attorney General, which he was expected to do to defend the queen’s privilege in granting monopolies (and in reaping their revenues). Crook, Altham and Tanfield, represented Allien. The King’s Bench ruled that the grant was void, because monopolies are against the Common Law, which protects the freedom of trade and liberty of the subject, and against the statutes of Parliament.
This is an unusual report: Coke, at least formally, lost the Case, although his heart was probably not in it. Notice his contrast between the public and private good and the description toward the end of the report of the “odious monopoly” and his contrast of the stated and real purposes of it. For cases on restraint from the professions, see also Dr. Bonham’s Case, p. 264, Case of the Tailors of Ipswich, p. 390.
Edward Darcy, Esquire, a Groom of the Chamber to Queen Elizabeth, brought an Action on the Case against Thomas Allein, Haberdasher of London, and declared, That Queen Eliz., 13 Junii, anno 30, intending that her subjects being able men to exercise Husbandry, should apply themselves there-unto, and that they should not imploy themselves to the making of playing Cards, which had not been any antient manual Occupation within this Realm; and that the making of such a multitude of cards, Card playing was become very frequent, and chiefly amongst servants and apprentices and poor Artificers; and to the end her subjects might apply themselves to more faithful and necessary Trades, by her Letters Patents under the Great Seal of the same did grant unto Ralph Bowes, Esqire, full power, license and authority by himself, his servants, factors and deputies, to provide and buy in any parts beyond the Sea, all such playing Cards as he thought good, and to bring them within this Realm; and to sell and utter them within the same, and that he, his servants, factors and deputies should have and enjoy the whole Trade, Traffic and Merchandize of all playing Cards: And by the said Letters Patents further |[85 a] granted to the said Ralph Bowes, That the said Ralph Bowes his servants, factors, and deputies, and no other should have the making of playing Cards within the Realm, to have and to hold for twelve years; and by the said Letters Patents the Queene charged and commanded, That no person or persons besides the said Ralph &c. should bring any Cards within the Realm during those twelve years; Nor should buy, sell, or offer to be sold within the said Realm, within the said term any playing Cards, nor should make, or cause to be made any playing Cards within the said Realm, upon pain of the Queens gracious displeasure, and of such fine and punishment as Offenders in the Case of voluntary contempt deserve. And afterwards the Queen, 11 Aug. anno 40 Eliz. by her Letters Patents reciting the former grants made to Ralph Bowes, granted the Plaintiff, his Executors, Administrators, and their deputies, the same priviledges, authorities, and other the said premisses for one and twenty years after the end of the former time, rendring to the Queen hundred marks per annum; And further granted to him a Seal for to mark the Cards. And further declared, That after the end of the said term of twelve yeers, scil. 30 Junii, an. 42 Eliz. the Plaintiff caused to be made four hundred grosses of Cards for the necessary uses of the subjects, to be sold within this Realm, and had spent in the working of them 5000 l. and that the Defendant knowing the said grant and prohibition in the Plaintiff’s Letters Patents, and other the premisses, 15 Martii, 44 Eliz. without the Queens License or the Plaintiffs, &c. at Westminster did cause eightie grosses of playing Cards to be made and as well those, as 100 other grosses of playing Cards, of which many were made within the Realm, or brought within the Realm by the Plaintiff, or his servants, factors or deputies, &c. nor marked with his Seal; he had imported within the Realm, and had sold and uttered them to sundry persons unknown, and shewed some in certain, for which the Plaintiff could not utter his playing Cards, &c. Contra formam praedict’ literar’ patentium, et in contemptum dictae Dominae Reginae,1 whereby the Plaintiff was disabled to pay his farm rent, to the Plaintiffs damages.
The Defendant, besides to one half grosse pleaded, Not Guilty; and as to that he pleaded, that the City of London is an antient city, and within the same, time out of mind there hath been a Society of Haberdashers; and that within the said City there was a Custom, Quod quaelibet persona de societate illa, usus fuit et consuevit emere |[85 b] vendere, et libere merchandizare omnem rem et omnes res merchandizabiles infra hoc regnum Angliae de quocunque, vel quibuscunque personis, &c.2 And pleaded, That he was civis et liber homo de civitate et societate illa,3 and sold the said half gross of playing Cards, being made within the Realm, &c. as it was lawful from him to do; upon which the Plaintiffe did demurre in Law.
And this Case was argued at the Bar by Dodderidg, Fuller, Fleming Solicitor, and Coke Attorney-General, for the Plaintiff. And by George Crook, Altham, and Tanfield for the Defendant. And in this Case two general questions were moved and argued at the Bar, arising upon the two distinct grants in the said Letters Patents, viz.
1. If the said Grant to the Plaintiff of the sole making of Cards within the Realm were good or not?
2. If the Licence or dispensation to have the sole importation of Foreign Cards granted to the Plaintiffe, were available or not in Law. To the bar, no regard was had, because it was no more then the Common Law would have said, and then no such particular Custome ought to have been alleged, for in his quae de jure communi omnibus conceduntur, consuetudo alicujus patriae vel loci non est alleganda,4 and therewith agreeth 8 Edw. 4. 5a. &c. And although the bar was holden superfluous, yet it shall not turn the Defendant to any prejudice, that he may well take advantage of the insufficiency of the Court.
As to the first question it was argued on the Plaintiffs side, That the said Grant of the sole making of playing Cards within the Realme, was good for three causes:
1. Because the said playing Cards were not any merchandize, or thing concerning Trade of any necessary use, but things of vanity, and the occasion of expence of time, wasting of patrimonies, and of the livings of many, the loss of the service and work of servants, causes of want, which is the mother of wo and perdition, and therefore it belongeth to the Queen (who is Parens patriae, & paterfamilias totius regni,5 and as it is said in 20 Hen. 7. fol. 4. Capitalis Justiciarius Angliae)6 to take away the great abuse, and to take order for the moderate and convenient use of them.
2. In matters of recreation and pleasure the Queen hath a Prerogative given her by the Law to take such order for such moderate use of them as shall seem good to her.
3. The Queen in regard of the great abuse of them, and of the deceit of the subjects by reason of them might utterly suppress them, and by |[86 a] consequence without injury to any one, she might moderate and suffer them at her pleasure. And the reason of the Law which giveth the King these Prerogatives in matters of recreation and pleasure was, because the greatest part of men are ready to exceed in them. And upon these grounds divers Cases were put; scil. That no subject can make a Park, Chase, or Warren within his own Land, for his recreation or pleasure without the Kings grant or license; and if he do it of his own head in a Quo warranto,7 they shall be seised into the King’s hands, as it is holden in 3 Edw. 2. Action sur le Statute Br. 48. and 30 Edw. 3. Rot. Pat. The King granted to another all the wild Swans betwixt London Bridg and Oxford.
As the second, It was argued, and strongly urged, That the Queen by her prerogative may dispense with a penal Law, when the forfeiture is popular, or given to the King, And the forfeiture given by the Statute of 3 Edw. 4. cap. 5. in case of bringing of Cards is popular, 2 Hen. 7. 6 b. 11 Hen. 7. 11 b. 13 Hen. 7. 8b. 2 R. 3. 12a. Plow. Com, Greindon’s Case, 502a, b. 6 Eliz. Dyer. 225. 13 El. 393. 18 Eliz. 352. 33 Hen. 8. Dyer 52. 11 Hen. 4. 76. 13 Edw. 3. Release 36. 43 Ass. pl. 19. 5 Edw. 3. 29. 2 Edw. 3. 6. & 7. F. N. B. 211b.
As to the first it was argued by the Defendants Counsel, and resolved by Popham Chief Justice, et per totam Curiam,8 That the said Grant to the Plaintiff of the sole making of Cards within the Realm was void; and that for two reasons.
1. The same is a Monopoly, and against the Common Law.
2. That it is against divers Acts of Parliament.
Against the Common Law, for four causes
1. All Trades, as well Mechanical, as others, which avoid idleness (the bane of the Commonwealth) and exercise men and youths in labor for the maintenance of them and their Families, and for the increase of their livings, to serve the Queen if need be were profitable for the Commonwealth; and therefore the grant to the Plaintiff to have the sole making of them is against the Common Law, and the benefit and liberty of the subject; andtherewithagreeth Fortescue in laudibus Legum Angliae, cap. 26.
And a Case was adjudged in this Court in an Action of Trespass between Davenant & Hurdis Trin. 41 Eliz. Rot. 92. where the Case was, That the Company of Merchant Taylors in London having power by charter to make Ordinances for the better rule and government of the Company, [so that they are consonant to Law and reason,] made an Ordinance, That every Brother of the same Society, who should put any cloath to be dressed by any Clothworker not being a Brother |[86 b] of the same Society, shall expose one half of his cloathes to any Brother of the same Societie, who exercised the Art of a Cloathworker, upon pain of forfeiting ten shillings, &c. and to distrein for it, &c. and it was adjudged, That the Ordinance, although it had the countenance of a Charter, was against the Common Law, because it was against the liberty of the subject; for every subject by the Law hath freedom and liberty to put his cloaths to be dressed by what Clothworker he pleaseth, and cannot be restrained to certain persons, for that in effect shall be a Monopoly; and therefore such Ordinance by color of a charter, or any grant by charter to such effect shall be void.
2. The sole Trade of any Mechanical Artifice, or any other Monopoly is not only a damage and prejudice to those who exercise the same Trade, but also to all other subjects, for the end of all these Monopolies is for the private gain of the Patentees; and although provisions and cautions be added to moderate them; yet res profecto stulta est nequitiae modus;9 it is meer folly to think that there is any measure in mischief or wickedness. And therefore there are three inseparable incidents to every Monopoly against the Commonwealth.
1. That the price of the said commodity shall be raised, for he who hath the sole selling of any commodity, may make the price as he pleaseth. And this word, Monopoly, is said, Cum unus solus aliquod genus mercaturae universum emit, pretium ad suum libitum statuens.10 And the Poet saith,
Omnia Castor emit, sic fit ut omnia vendat.11
And it appeareth by the Writ of Ad quod damnum,12 F. N. B. 222a. That every gift or grant from the King hath this Condition, either expressly or tacitely annexed to it, Illa quod patria per donationem illam magis solito non oneretur seu gravetur.13 And therefore every grant made in grievance and prejudice of the subject is void; and 13 Hen. 4. 14 b. the Kings grant which tendeth to the charge and prejudice of the subject is void.
The second incident to a Monopoly is, That after a Monopoly granted, the Commodity is not so good and merchantable as it was before; for the patentee having the sole trade, regardeth only his private, and not the publicke weale.
3. This same leadeth to the impoverishing of divers Artificers and others, who before by labor of their hands in their Art or Trade had kept themselves and their families, who now of necessity shall be constrained to live in idlenesse and beggary; vide Fortescue ubi supra.14 And the Common Law in this point agreeth with the equity of the Law of God, as appeareth in Deut. cap. xxiv. ver. 6. Non accipies loco |[87 a] pignoris inferiorem et superiorem molam, quia animam suam apposuit tibi;15 You shall not take in pledg the neathet and upper milstone, for the same is his life; by which it appeareth, That every mans Trade doth maintains his life, and therefore he ought not to be deprived or dispossessed of it, no more than of his life. And the same also agreeth with the Civil Law; Apud Justinianum monopolia non esse intromittenda, quoniam non ad commodum reipublicae sed ad labem detrimentaque pertinent. Monopolia interdixerunt leges civiles, cap. De Monopoliis lege unica. Zeno imperator statuit, ut exercentes monopolia bonis omnibus spoliarentur. Adjecit Zeno, ipsa rescripta imperialia non esse audienda, si cuiquam monopolia concedant.16
3. The Queen was deceived in her grant, for the Queen as by the preamble appears, intended the same to be for the weal publick, and it shall be imployed for the private good of the Patentee; [and for the prejudice ofthewealpublic];17 Also the Queen meant that the abuse should be taken away, which shall never be by this Patent, but rather the abuse will be encreased fort the private benefit of the Patentee, and therefore, as it is said in 21 Ed. 3. 46. in the Earl of Kent’s Case, this grant is void jure Regio.18
4. This grant is of this first impression, for no such was ever seen to pass [by letters patent]19 under the great Seal of England before this time, and therefore it is a dangerous innovation as well withoutanyorexampleaswithout authority of Law, or reason. And it was observed that this grant to the Plaintiff was made for twenty-one years, so that his Executors, Administrators, Wife, or Children, or others inexpert in the Art and Trade shall have this Monopoly. And it cannot be intended, That Edward Darcy Esquire, and Groom of the Queen’s Privy Chamber hath any skill in this Mechanical trade in making of Cards, and then it was said, That the Patent made to him was void, for to forbid others to make Cards who have the art and skill, and to give him the onely making of them who hath no skill to make them, shall make the Patent utterly void, Vide 9 Ed. 4. 5 b. And although the grant doth extend to his Deputies, and it may be said, he may appoint Deputies who shall be expert; yet if the Grantee himself be unexpert, and the grant be void as to him, he cannot make any Deputy to supply his room, quia quod per me non possum, nec per alium.20 And as to what hath been said, That Playing Cards is a vanity, It is true, if it be abused, but the making of them is no pleasure, but labour and pains. |[87 b] And it is true that none can make a Park, Chase, or Warren without the Kings licence, for that were quodam modo21 to appropriate those which are ferae naturae, et nullius in bonis22 to himself, and to restrain them of their natural liberty, which he cannot do without the Kings licence: but forhawking, hunting, &c. which are matters of pastime, pleasure, and recreation, there needeth no licence, but every one may in his own land use them at his pleasure without any restraint to be made, if not by Parliament, as appeareth by the Statutes of 11 Hen. 7. c. 17. 23 Eliz. c. 10. 3 Jac. Regis, c. 13. And it is evident by the preamble of the said Act of 3 Edw. 4. c. 4. That the bringing in of forreign Cards was forbidden at the grievous complaint of the poor Artificers Cardmakers, who were not able to live of their trades, if forreign Cards should be brought in; as appeareth by the preamble: By which it appeareth, That the said Act provides remedie for the maintenance of the trade of making Cards, for as much as the same maintain divers families by their labour and industry. And the like Act is made in 1 Hen. 3. cap. 12. And therefore it was resolved, That the Queen could not suppress the making of Cards within the Realm, no more than the making of Dice, Bowls, Balls, Hawks-hoods, Bells, Lewers, Dog-couples, and other like, which are works of labour and art, although they shall be for pleasure, recreation and pastime, and they cannot be suppressed if not by Parliament, nor a man restrained to use any trade but by Parliament. 37 Edw. 3. cap. 16. 5 Eliz. cap. 4. And the playing at Dice and Cards is not forbidden by the Common Law, as appeareth M. 8 & 9 El. Dyer 154 (If not that some be deceived by false Dice or Cards, and there he who is deceived, shall have an Action upon this Case to the deceit) and playing at Cards, Dice, &c. is not malum in se,23 for then the Queen should not suffer, nor license the same to be done. And where King Edward the third in the 39 year of his reign commandeth the exercise of shooting and artillery, and forbiddeth the exercise of casting of stones and barres, and the hand and foot-balles, cock-fighting, & alios ludos vanos,24 as appeareth in dors’ claus’ de an. 39 Edw. 3. nu. 23. yet no effect thereof followed, till divers of them were forbidden upon a penalty by divers Acts of Parliament, viz. 12 Ric. 2. cap. 6. 11 Hen. 4. cap. 4. 17 Edw. 4. cap. 3. 33 Hen. 8. cap. 9.
Also such charter of a Monopolie, against the freedom of Trade and Traffick, is against divers Acts of Parliament, scil. 9 Ed.3. c.1&2. Which for the advancement of the freedom of |[88 a] Trade and Traffick extendeth to all vendible things, notwithstanding any charter of franchise granted to the contrary, or usage, or custom, or judgment given thereupon; which charters are adjudged by the same Parliament to be of no force, or effect, and made at the request of Prelates, Barons, and Grandees of the Realm, to the oppression of the Commons. And by the Statute of 25 Ed. 3. cap. 2. It is Enacted, that the Act of 9 E. 3. shall be kept, Holden, and maintained in all points. And it is further thereby enacted, That if any Statute, Charter, Letters Pattents, Proclamation, Command, Usage, Allowance, or judgment be made to the contrary, that the same be utterly void, vide Magna Charta cap. 18. 27 Edw. 3. cap. 11, &c.
As to the second question, It was resolved, That the dispensation or licence to have the sole importation and merchandizing of goods (without any limitation or stint) nothstanding the said Act of 3 Edw. 4. is utterly against Law: For it is true, That for as much as an Act of Parliament which generally forbiddeth a thing upon penalty which is popular, or onely given to the King, may be inconvenient to divers particular persons, in respect of person, place, time, &c. And for this cause the Law hath given power to the King, to dispense with particular persons; Dispensatio mali prohibiti est de jure Domino Regi concessa, propter impossibilitat’ praeviden’ de omnibus particular’, et dispensatio est mali prohib’ provida relaxatio, utilitate seu necessitate pensata.25 But when the wisdom of the Parliament hath made an Act to restrain pro bono publico26 the bringing in of many foreign manufactures, to the intent that the subjects of the Realm might apply themselves to the making of the said manufactures, &c. And thereby maintain themselves and their family with their handy labor. Now for a private gain to grant the sole importation of them to one, or divers (without any limitation) notwithstanding the said Act is a Monopoly against the common law, and against the end and scope of the same Act; for the same is not to maintain and encrease the labors of the poor Cardmakers within the realm, at whose petition the Act was made, but utterly to take away and overthrow their trade and labours, and that without any reason of necessity, or inconveniency in respect, place or time, and so much the rather because it was granted in reversion for years, as hath been said, but onely for the benefit of a private man, his Executors and Administrators for his particular commodity, and in prejudice of the Commonwealth. And King Edward the third by his Letters Patents, granted to one John Peche the sole importation of Sweet-wine into London, |[88 b] and at a Parliament holden 50 Edw. 3. this grant was adjudged void, as appeareth in Rot. Parl. an. 50 Edw. 3. Mich. 33. Also admit that such grant or dispensation were good, yet the plaintiff cannot maintain an Action upon the Case against those who bring in any forreign Cards, but the remedie which the Act of 3 Edw. 4. in such Case giveth ought to be pursued. And judgment was given and entered, quod querens nihil caperet per billam.27
And note, Reader, and well observe the glorious preamble and pretence of this odious monopoly. And it is true quod privilegia quae re vera sunt in praejudicium reipublicae, magis tamen speciosa habent frontispicia, et boni publici praetextum, quam bonae et legales concessiones, sed praetextu liciti non debet admitti illicitum.28 And our lord the King that now is in a Book which he in zeal to the Law and Justice commanded to be printed Anno 1610. intituled A Declaration of his Majesties pleasure, &c. p. 13. hath published, That Monopolies are things against the Lawes of this Realm, and therefore expressly commands that No Suitor presume to move him to grant any of them.
James Bagg’s Case.
(1615) Trinity Term, 13 James I In the Court of King’s Bench.
First Published in the Reports, volume 11, page 93b.*
Ed.: James Bagg, a burgess of Plymouth, in Devon, was a bit curmudgeonly. He called the mayor “some prince” with not a little sarcasm, as well as calling him a “cozenly knave” whom the council could choose a wiser man to replace. Bagg called another burgess a “knave” and yet another a “seditious fellow.” He also suggested that the mayor was exceeding his authority in making merchants take loyalty oaths, after which the merchants refused to take them, provoked wine merchants not to pay a special town wine tax, and suggested that he seek the revocation of the town charter. The Mayor and burgesses voted to amove, or remove, Bagg from office, and he was disenfranchised. Bagg sued in the King’s Bench. The court considered the privileges of citizenship and their protection under the Common Law, Magna Carta, and other Statutes, held that the town could not act on these grounds to remove someone from office or the franchise. Note also the broad claims of jurisdiction to cure errors by officials. For other privileges of citizenship, see also Calvin’s Case, p. 166.
James, by the grace of God, of England, Scotland, France, and Ireland, King, defender of the faith, &c. To the Mayor and Commonalty of the borough of Plymouth, in the county of Devon, greeting, &c. Whereas James Bagg, one of the twelve chief burgesses, or magistrates ofthe boroughaforesaid, according to the custom of the borough aforesaid, hitherto used, was duly chosen and made. And whereas the same James, in the office of one of the twelve chief burgesses or magistrates of the borough aforesaid, a long time carried and well governed himself; yet, you the mayor and commonalty of the borough aforesaid, little regarding the afore said James, unduly, and without reasonable cause, from the office of one of the twelve chief burgesses and magistrates of the borough afore said, unjustly have amoved, in contempt of us, and to the no little damage and grievance of him the said James, and the hurt of his estate, as we, by his complaint, have understood: we therefore to the said James, willing, due, and speedy Justice to be done in this behalf, as is just, command you, and every of you, as heretofore we have commanded you firmly enjoining you, that immediately after the receipt of this writ, the aforesaid James, into the aforesaid office of one of the twelve chief burgesses or magistrates of the borough aforesaid you restore, with all the liberties, privileges, and commodities, to the office aforesaid belonging and appertaining; or that you signify the cause thereof unto us, lest in your default, complaint thereof again to us come: |[94 a] and how this our writ shall be executed you make to appear to us, from the Day of the Holy Trinity, in three weeks, wheresoever we shall be in England, under the penalty of 40l this our writ then sending back to us, &c. Witness E. Coke, at Westminster, the 12th day of June, in the 13th year of our reign, of England, France, and Ireland, and of Scotland the 48th.
By the term of Trinity, in the thirteenth year of King James, Rot. 23. execution of this writ doth appear in a certain schedule to this writ annexed, John Clement, Mayor, the answer of the Mayor and Commonalty of the borough of Plymouth to the writ, to this schedule annexed; according to the command of the writ aforesaid, to the lord the King we most humbly certify, that the Lady Elizabeth, late Queen of England, by her letters patent, sealed with the Great Seal of England, bearing date at Westminster the 28th day of Feb. in the 43d year of her reign, for herself, her heirs and successors, granted to the Mayor and Commonalty of the borough of Plymouth aforesaid, and their successors, (amongst other things), that the mayor and Recorder of the borough aforesaid, for the time being, during the time that they shouldhappen to be in their offices, and also the predecessors of the said mayor then alive, and for the time being, and their successors, should be Justices of the said late Queen, her heirs and successors; to keep the peace in the said borough, and within the limits, precincts, and liberties thereof; and to be kept, and to cause to be conserved and kept, without any command, commission, or warrant for the same to be had, or to be obtained: and further to the said lord the King we certify,He ought to have first prescribed that there had been an incorporation of a mayor, &c. from time whereof, &c. Vide 22 H. 6. Prescription 47.6E.6. Dyer 71, &c. that within the borough aforesaid, there is, and from time whereof the memory of man is not to the contrary, there has been a usage and custom, that the mayor and twelve chief burgesses of the same borough, stood, and were of the private council of the borough aforesaid, and twenty-four of the other most discreet burgesses of the borough aforesaid, for the time being, to this chosen and sworn, stood, and were, together with the aforesaid mayor and twelve chief burgesses,Twelve chief burgesses, de privato consilio burgi, it would be more aptly said, de privato consilio majoris et burgensium. of common council of the borough aforesaid, for the regulating and government of the same borough. And that every such burgess who was chosen into the fellowship of the twenty-four burgesses of the common council aforesaid, before he was to be admitted to the said fellowship, should take a corporate oath before the mayor of the same borough,They do not prescribe or allege any charter that they may disfranchise any of the corporation. for the time being, that he should carry himself well and honestly, as well towards the mayor of the borough aforesaid, for the time being, as towards the aforesaid twelve chief burgesses of the said borough for the time being, and to them from time to time should shew reverence,The oath of a chief burgess. and that he should maintain and uphold the liberties and common profit of the borough aforesaid, with his best counsel and advice: |[94 b] and further we certify, that every one of the aforesaid twelve chief burgesses, from time to time chosen, should be preferred by the mayor of the borough aforesaid, or the rest of the aforesaid twelve chief of the burgesses,They do not prescribe in this, and yet it is against common right. 1. Die Maii. 32 Eliz. James Bagg chose one of the twenty-four. or by the greater part of them, for the time being, only without the consent or assent of the aforesaid twenty-four, the other burgesses who are (as before is said) of the common council of the borough aforesaid, to this required. And further we certify, that the aforesaid James Bagg, on the first day of May, in the 32d year of the reign of the Lady Elizabeth, late Queen of England, was duly chosen and appointed one of the aforesaid twenty-four of the burgesses of the common council of the borough aforesaid then being, and on the said first day of May, in the 32d year aforesaid, at Plymouth aforesaid, took a corporal oath before the mayor of the borough aforesaid, according to the ancient custom aforesaid, that he the said James would carry himself well and honestly, as well towards the mayor of the borough aforesaid, for the time being, as towards the other twelve chief burgesses of the said borough for the time being, and to them from time to time would shew reverence, and the liberties and common profit of the borough aforesaid would maintain and uphold with his best counsel and advice: and further to the lord the King we certify, that the aforesaid borough of Plymouth is situate so near to the shore and sea-coasts, that by reason thereof, and by reason of the daily meeting there of ships and vessels there coming, as well from the parts beyond the seas, as from elsewhere, many ill-minded men, as well aliens as within born, of evil and perverse conversation, contemners of good government, and disturbers of the peace, in the ships and vessels aforesaid thither coming, in the borough aforesaid, and within the liberties and precincts of the same staying and remaining, are daily found, who can hardly be there brought to the obedience of good rule and government, unless the authority of the mayor of the borough aforesaid for the time being, and of the other chief burgesses aforesaid, with due reverence of the other burgesses and inhabitants of the said borough, be fortified, and the persons of the said chief burgesses, and of the mayor, from the contempt of the vulgar be preserved: and further to the said lord the King we certify, that the aforesaid James Bagg, not ignorant of the premises, little regarding his oath aforesaid, and the authority, as well of the mayor of the borough aforesaid for the time being, as his late predecessors aforesaid, as the other the chief burgesses of the borough aforesaid, setting naught by, and labouring and intending to bring the same authority into contempt: on the first day of May, in the 6th year of the reign of the lord the now King, the said James being then one of the common council of the borough aforesaid, and one of the chief burgesses of the same borough, in the presence of one |[95 a] Robert TreLawny, then being mayor of the borough aforesaid, and of many other of the inhabitants of the borough aforesaid, at Plymouth aforesaid, within the borough aforesaid, contemptuously and malapertly carried himself, as well in gesture as in words, toward the mayor aforesaid; and then and there, to the aforesaid Robert TreLawny, contemptuously and scoffingly, without any reasonable cause, these words following, openly and publicly said and spoke,These words are to be reprehended; but are no cause to disfranchise him. that is to say, “You, (the aforesaid Robert TreLawny meaning) are some prince, are you not?” And further to the said lord the King we certify, that afterwards, that is to say, on the first day of February, in the 7th year of the reign of the lord the now King, the aforesaid James Bagg continuing his evil disposition and intention aforesaid, at Plymouth aforesaid, in the presence and hearing of the aforesaid Robert TreLawny, then being a Justice of the peace of the aforesaid lord the King, within the borough aforesaid to be kept, by reason of his mayoralty of the borough aforesaid, the year then last past, by virtue of the letters patent aforesaid, and in the presence and hearing of very many other of the inhabitants of the borough aforesaid, openly, publicly, andwith aloudvoice, without any reasonable cause, these words following, contemptuously, falsely, and scandalously said and spoke,These words are scornful, and worthy of punishment, sc. to bind him to his good behaviour, if they were published when the mayor was sitting in execution of his office: but are no cause to disfranchise the delinquent. that is to say, “You, (the aforesaid TreLawny meaning) are a cozening knave;” whereas in truth, the said Robert TreLawny, all his lifetime, honestly, and from all suspicion of any falsity, fraud, or deceit, lived altogether unsuspected, and in the offices, as well of the mayoralty as of chief burgess of the borough aforesaid, with praise, carried and governed himself: and further to the said lord the King we do certify, that on the 20th day of November, in the 7th year of the reign of the said lord the now King, the aforesaid James Bagg, continuing his evil disposition and intent aforesaid, at Plymouth aforesaid, seditiously and maliciously stirred up, and persuaded one Thomas Shervil, then being one of the chief burgesses of the borough aforesaid, that he the said Thomas would join himself with the aforesaid James Bagg in a conspiracy, to amove and depose one John Battersby, then being mayor of the borough aforesaid, from his office of mayoralty,These words are no cause to disfranchise him. 1. Because nothing was done and it might be, that there was just cause to remove him; and the cause certifie ought to be such that it may appear to the Court, that it is a just cause to disfranchise him; for the party grieved cannot have an answer to it. without any reasonable or Lawful cause, and then and there maliciously and contemptuously spoke to the aforesaid Thomas Shervill of the aforesaid John Battersby, these words following, that is to say, “Master mayor (the aforesaid JohnBattersbymeaning) carrieth himself foolishly in this place; and if you will join with me, we will turn him out of his mayoralty, and choose a wiser man in his place:” whereas in truth the aforesaid John Battersby, during the whole time of his mayoralty aforesaid, in the |[95 b] executing of his office aforesaid, carried himself well and discreetly, and with great integrity and gravity. And further to the said lord the King we certify, that afterwards, that is to say, on the first day of February, in the 8th year of the reign of the said lord the now King, the aforesaid James Bagg continuing in his evil disposition and intent aforesaid, at Plymouthaforesaid, in the Guildhall of the borough aforesaid, in the presence of one Thomas Fowens, then being mayor of the borough aforesaid, in the presence and hearing, as well of the chief burgesses as of the other inhabitants of the borough aforesaid, scornfully, and without reasonable cause, did speak to the aforesaid Thomas Fowens these false and injurious words following, that is to say,As above. “Thou (the aforesaid Thomas Fowens, then mayor meaning,) art an insolent fellow;” whereas in truth the said Thomas, in the whole course of his life, bore himself towards all men honestly, civilly, and with praise. And further to the said lord the King we certify, that afterwards, that is to say, on the first day of August, in the 9th year of the reign of the said lord the now King, atPlymouthaforesaid, in the presence and hearing of the aforesaid Thomas Fowens, and of very many other of the burgesses of the borough aforesaid, being gathered together in the Guildhall of the borough aforesaid, the aforesaid James Bagg continuing his evil disposition and intent aforesaid, divers contemptible words of the aforesaid Thomas Fowens, then being mayor of the borough aforesaid, with a loud voice spoke and uttered; upon which the aforesaid Thomas Fowens, with mild words admonishing the aforesaid James Bagg that he would desist from uttering such contemptible words aforesaid, the aforesaid James Bagg thereupon, then and there, that is to say, on the 10th day of August, in the 9th year abovesaid, at Plymouth aforesaid, and in the presence and hearing of the aforesaid Thomas Fowens, then mayor of the borough aforesaid, and very many others of the burgesses and inhabitants of the borough aforesaid, and in contempt and disdain of the said Thomas Fowens, then mayor, turning the hinder part of his body in an inhuman and uncivil manner towards the aforesaid Thomas Fowens, scoffingly, contemptuously, and uncivilly, with a loud voice, said to the aforesaid Thomas Fowens, these words following, that is to say, (“Come and kiss.”) And further to the said lord the King we certify,This is against good manners, and worthy of punishment as aforesaid; but no cause of disfranchisement, or of indictment. that afterwards, that is to say, on the 20th day of August, in the 9th year of the reign of the lord the now King, at Plymouth aforesaid, the aforesaid James Bagg, with most insolent words, threatened the said Thomas Fowens, then being mayor of the borough aforesaid, without any reasonable cause; and then and there, to the said John Fowens, threateningly and maliciously spoke these words following, |[96 a] that is to say, “I will make thy neck crack.” And further to the said lord the King we certify, that afterward, that is to say, on the third day of May,This is repugnant, sc. 3 Maii and 9 Maii. in the 12th year of the reign of the lord the now King, a certain order and friendly instrument of admonition was made by John Scobb, mayor of the borough aforesaid, and the greater part of the chief burgesses of the same borough,Here it appears that he should be removed by the mayor and nine of the masters; and in the end of the return, it is alleged, that he was removed by the mayor and commonalty, which is repugnant. in these words, that is to say, “the 9th day of May, 1614, the day and year above-written, it was agreed by John Scobb, Mayor, and such other of the masters here underwritten, that if Mr. James Bagg, the elder, do not before the next sessions to be holden within the borough of Plymouth, reconcile himself to the said mayor and his brethren, for such wrongs as he hath committed against them, and withal faithfully promise todemeanhimself more orderly and temperately for the time to come, that then he shall be clean removed from the Bench, and a new master chosen in his room:” which order or instrument was made and subscribed by the said mayor and nine other of the chief burgesses of the borough aforesaid. And further to the said lord the King we certify, that the aforesaid James Bagg, before the aforesaid next sessions, in the order aforesaid mentioned, did not make any such reconciliation or promise or conformity, as in the order aforesaid is specified, although full notice of the aforesaid order, immediately after the making thereof, and before the aforesaid next sessions was given to him at Plymouth aforesaid. Andfurther to the said lord the King we certify, that afterwards, that is to say, on the 20th day of February, in the 12th year of the reign of the said lord the now King, the aforesaid James Bagg continuing his evil disposition, and in his intent aforesaid, at Plymouth aforesaid, in the Guildhall of the borough aforesaid, in the presence and hearing of John Scobb, one of the chief burgesses of the borough aforesaid, and then being a Justice for the keeping the peace within the borough aforesaid, by virtue of the letters patent aforesaid, by reason of his mayoralty of the borough aforesaid, the year then next before, and in the presence and hearing of the then mayor of the borough aforesaid, and of divers others of the burgesses and inhabitants of that borough, contemptuouslythese words following, spoke and uttered of the aforesaid John Scobb, openly and publicly,As above. falsely and scandalously, that is to say, “You (the aforesaid John Scobb meaning) are a knave;” whereas the aforesaid John Scobb honestly, |[96 b] and laudably carried and governed himself. And further to the said lord the King we certify, that afterwards, that is to say, on the 10th day of December last past, the then mayor of the said borough, and divers of the chief burgesses of the borough aforesaid, at Plymouth aforesaid, being assembled together in the alms-house of the said borough, to require and receive an account of the over seers, burgesses of the borough aforesaid, as in times past, and from time whereof the memory of man is not to the contrary, it was used, the aforesaid James Bagg, then and there, in the presence and hearing of the said mayor, and other of the chief burgesses aforesaid, without any reasonablecause, openly and publicly said to the said Thomas Shervill, there then present, and one of the chief burgesses of the borough aforesaid, and for the space of ten years then last past being, these false and scandalous words following; that is to say, “You (the said Thomas Shervill meaning) are a seditious fellow;”As above. whereas in truth the aforesaid Thomas Shervill always lived unsuspected of any suchcrime of sedition, and from time to time in the office of mayor of the borough aforesaid as in the place and office of chief burgess, honestly, discreetly, and with great integrity, carried and governed himself. And further to the said lord the King we certify, that whereas the said lord the King, the day of January, in the 12th year of his reign aforesaid, at Westminster in the county of Middlesex, with the advice of the Lords of his Privy Council of this his realm of England, ordained and commanded, by public proclamation, and by letters written under the proper hands of divers of the Lords of his Privy Council sealed, that none, nor any person whatsoever, should kill or put to sale any flesh for victuals in the time of Lent then next following, contrary to the Laws and Statutes of this realm. And that all mayors, and other head officers, in boroughs and towns corporate, within this kingdom of England, in the beginning of the time of Lent then next coming, or before, should cause all victuallers, inn-keepers, keepers of ordinary tables, and alehouse-keepers, within the precinct of their jurisdiction, to be bounden to the lord the King by bond, that they should not dress any flesh for victuals all the said time of Lent, then next following: and whereas afterwards, that is to say, on the 20th day of February, in the 12th year aforesaid, one John Clement, then, and yet Mayor of the borough of Plymouth, aforesaid, |[97 a] according to the duty of his office, and in obedience of the said ordinance and command of the said lord the King, sent to all the victuallers, inn-keepers, keepers of ordinary tables, and alehouse-keepers aforesaid, within the precinct of the borough aforesaid, that they become bound by their writing obligatory, to the use of the lord the King, according to the tenor and exigency of the aforesaid ordinance and command of the said lord the King, and the due execution of the ordinance aforesaid, in that behalf required and endeavoured to effect within theborough aforesaid; the aforesaid James Bagg, well knowing the premises, andcontinuing his evil disposition and intent aforesaid, at Plymouth aforesaid, endeavouring and attempting to hinder and make void the due execution of the aforesaid ordinance and command of the said lord the King; and to that purpose, on the same 20th day of February, at Plymouth aforesaid, to divers inhabitants of the borough aforesaid, and other of the King’s liege people then being, and having then and there speech with the aforesaid James Bagg, of and upon the business aforesaid, the said James Bagg openly and publicly spoke and uttered these words following,This is no cause of disfranchisement without question: also the innuendo is idle and vain. that is to say, “Master Mayor (meaning the said John Clement) doth more herein than he need, and more than he can well answer;” meaning, that the said John Clement, in requiring the aforesaid victuallers, inn-keepers, keepers of ordinary tables, and alehouse-keepers, to become bounden to the use of the said lord the King, according to the aforesaid ordinance and command of the said lord the King, had done more than was needful, and more than he could well answer; by reason of which speech divers victuallers, inn-keepers, keepers of ordinary tables, and alehouse-keepers, dwelling within the aforesaid borough, utterly refused to be bounden to the said lord the King, according to the aforesaid ordinance and command of the said lord the King; and further we certify, that the aforesaid Mayor and Commonalty of the borough of Plymouth,They have not alleged, that there was a corporation from time whereof, &c. and their predecessors, from time whereof the memory of man is not to the contrary, had and used to have within the borough aforesaid a certain custom of wine, called wine-weight, otherwise wine-wite, payable by every taverner selling wine withintheborough aforesaid, of which custom of wine aforesaid the mayor and commonalty for the whole time aforesaid quietly and peaceably were possessed of, until the aforesaid James Bagg, on the 29th day of November, in the 4th year of the reign of the said lord the now King, at Plymouth aforesaid, perfidiously and maliciously practise with William Bently and Thomas Lyde,These words are too general. being taverners and sellers of wine within the borough aforesaid, to them revealing divers secret counsels concerning the common profit of the borough |[97 b] aforesaid; and them the said William and Thomas then and there persuaded, that they no more should pay the aforesaid custom of wine, called wine weight, otherwise wine-wite, nor any farm or sum of money for the same, to the aforesaid mayor and commonalty, on which very 29th day of November,The same was but his opinion, which although it be false, is no cause of disfranchisement: and his opinion cannot be a prejudice to their right; the innuendo is vain and idle. in the 4th year aforesaid, the aforesaid James Bagg, being then one of the twelve chief burgesses of common council of the borough aforesaid, at Plymouth aforesaid, perfidiously and maliciously spoke to the said William Bently and Thomas Lyde these words, that is to say, “You need not pay the money,” (meaning a certain farm by them the said William and Thomas for the custom aforesaid, before then,Yet remedy lies for this duty, if they have right to it by the Law. to the aforesaid mayor and commonalty payable for the wine-weight) “any longer, except you list, for it is not due unto them:” by reason of which perfidious and malicious words the aforesaid William Bently and Thomas Lyde utterly refused to pay, and yet do refuse, and by reason thereof divers strifes and controversies are risen, and hereafter are like to arise betwixt the aforesaid William Bently and Thomas Lyde, and the aforesaid mayor and commonalty, for the custom of wine aforesaid, and the farm aforesaid, to the great damage and prejudice of the aforesaid mayor and commonalty: and further to the said lord the King we certify, that the aforesaid James Bagg, on the first day of May, in the twelfth year of the reign of the lord the now King, and on divers other days and times then before, at Plymouth aforesaid, perfidiously said to divers inhabitants of the borough aforesaid, and to other the liege people of the said lord the King, upon communication between them and the aforesaid James Bagg then before had, of and concerning the liberties and privileges of the borough aforesaid,Non officit affectus nisi sequatur effectus: and it may be the charter was void in Law, or that it was procured by the lesser number of the burgesses, and then it might be removed; and so he might justify these words. “that he (the said James Bagg) would overthrow and make void the charter of the borough aforesaid,”meaningthecharteraforesaid, by the aforesaid late Queen Elizabeth to the aforesaid mayor and commonalty, as before is said, granted; and that he the said James the liberties and privileges of the borough aforesaid, would call in question, and the same privileges and liberties would overthrow. And further to the lord the King we certify, that afterwards, that is to say, the 17th day of April now last past, the aforesaid James Bagg in the said writ named, for the causes aforesaid, by the mayor and commonalty of the borough aforesaid, from the office of one of the chief burgesses and magistrates of the borough aforesaid, was amoved, &c.
John Clement, Mayor.
|[98 a] Upon the matter aforesaid, and for the causes aforesaid, it was resolved by the Court, That there was not any just cause to remove him; and therefore by the award of the Court, a writ was directed to the Major and Commonalty to restore him.
And in this Case, first, it was resolved, That Authority doth belong to the Kings Bench, not only to correct errors in judicial proceedings, but othererrors and misdemeanors extra-judicial, tending to the breach of peace, or oppression of the subjects, or to the raising of faction, controversy, debate, or to any manner of misgovernment; so that no wrong or injury, either publick or private, can be done but that the same shall be reformed or punished by the due course of Law.
For the general learning of this and the like Cases, all that was said in the argument of this Case, was divided into these questions.
1. What were sufficient causes to disfranchise a Citizen, Free-man, or Burgess of any City or Borough incorporate, and to discharge him of his freedom and liberty, and what not?
2. How and by whom, and in what manner, such Citizen or Burgess shall be disfranchised?
3. If the return of his removing and disfranchisement, doth carry sufficient matter, but the same is false; what remedy shall be for the party grieved in such Case?
As to the first, it was resolved, That the cause of disfranchisement ought to be grounded upon an Act which is against the duty of a Citizen or Burgess, and to the prejudice of the publick good of the City or Borough whereof he is a Citizen or Burgess, and against his oath which he took when he was sworn a Free-man of the City or Borough; for although one shall not be charged in any Judicial Court for the breach of a general Oath, which he took when he became Officer, Minister, Citizen, Burgess, &c. yet if the act which he doth be against the said duty and trust of his freedom, and to the prejudice of the City or Borough, and also against his oath, it enforces much the cause of his removal, and there is a condition in Law tacitè1 and annexed to his Freedom or Libertie; which if he breaks, he may be disfranchised; but words of Contempt, or contra bonos mores,2 although they be against |[98 b] the Chief Officer, or his brethren, are good causes to punish him, as to commit till he has found Sureties of his Good Behaviour, but not to disfranchise him. So if he intends, or endeavours of himself, or conspires with others, to do a thing against the duty or trust of his freedom, and to the prejudice of the publick good of the City or Borough, but he doth not execute it, it is a good cause to punish him, as is aforesaid, but not to disfranchise him, for Non officit conatus, nisi sequatur effectus;3 and Non officit affectus, nisi sequatur effectus.4 And the reason and cause thereof is, that when a man is a Free-man of a City or Borough, he has a freehold in his freedom for his life, and with others, in their publick capacity, has an inheritance in the lands of the said corporation, and interest in their goods, and perhaps the same concerns his trade and means of living, credit and estimation; and therefore the matter which shall be a cause of his disfranchisement, ought to be an act or a deed, and not a conation, or an indeavour, which he may repent of before the execution of it, and from whence no prejudice doth follow. And those who have offices of trust and confidence shall not forfeit them by endeavours and intentions to do acts, although they declare them by express words, unless the act itself shall ensue, as if one who has the keeping of a park should say, that he will kill all the game within his custody, or will cut down so many trees within the park, but doth not kill any of the game, nor cut down any trees, it is not any forfeiture, et sic de similibus,5 for in all such Cases, either there ought to be an Act, or such a negligence as doth amount to so much scil. to the destruction of the game, &c. If a Bishop, Arch-deacon, Parson, &c. fells all the trees, the same is a good cause of deprivation, 2 Hen. 4. 3b. So if a prior aliens the land which he has in jure domus suae,6 it is a cause of deprivation, as appears in 9 Edw. 4. 34. a. If a prior makes dilapidation, it is a good cause to deprive him, as it is held in 29 Edw. 3. 16 a. (20) 28 Hen. 6. 36 a. But if it be but a conation, or endeavour without any act done, in none of those Cases is it any cause of deprivation; for in those Cases, voluntas non reputatur pro facto.7 And if a contempt |[99 a] (be it of omission or commission) should be a good cause to disfranchise, the best Citizen or Burgess might be, at one time or other, disfranchised, which would be great cause of faction and contention in cities and boroughs.
As to the second, it was resolved, that no Free-man of any Corporation can be disfranchised by the Corporation, unless they have authority to do it either by the express words of the Charter, or by prescription: but if they have not authority neither by Charter or by prescription, then he ought to be convicted by course of Law before he can be removed; and it appears by Magna Charta, cap. 29. Nullus liber homo capiatur, vel imprisonetur, aut disseisitur de libero tenemento suo, vel libertatibus, vel liberis consuetudinibus suis, &c. nisi per legale judicium parium suorum, vel per legem terrae,8 and if the Corporation have power by Charter or prescription to remove him for a reasonable cause, that will be per legem terrae;9 but if they have no such power, he ought to be convicted per judicium parium suorum, &c.10 as if a Citizen, or Free-man, be attainted of Forgery or Perjury, or conspiracy, at the Kings suit, &c. or of any other crime whereby he is become infamous, upon such attainder they may remove him: So if he be convicted of any such offence which is against the duty and trust of his freedom, and to the publick prejudice of the City or Borough whereof he is free, and against his Oath, as if he has burnt or defaced the charters, or evidences of the City or Borough, or razed or corrupted them, and is thereof convicted and attainted, these and the like are good causes to remove him. And although they have Lawful authority either by Charter or prescription to remove any one from the Freedom, and that they have just cause to remove him; yet it appears by the return, that they have proceeded against him without hearing him answer to what was objected, or that he was not reasonably warned, such removal is void, and shall not bind the party, quia quicunque aliquid statuerit parte inaudita altera, aequum licet statuerit, haud aequus fuerit,11 and such removal is against Justice and right.
As to the third question, if they have power by Charter or prescription to disfranchise one, and afterwards the Judges of the Kings Bench award a Writ to them to restore him, or signifie the cause, &c. and they certifie a sufficient cause to remove him, but it is false; then the Court cannot award a Writ to restore him, neither can |[99 b] any issue be taken thereupon, because the parties are strangers, and have no day in Court; but the party grieved may well have an Action upon the special matter against those who made the Certificate, and aver it to be false; and if it is found for him, and he obtains judgment against them, so that it may appear to the Justices that the causes of the return are false, then they shall award a Writ of Restitution; and this is proved by reason of the Book of 9 Hen. 6. 44 a. where it is held, that upon a corpus cum causa,12 if the cause returned be sufficient, but in truth is false, the Court ought to send back the Prisoner, and he is at no mischief, for if they have no authority, or the cause be false, he may have a Writ of false imprisonment, vide Fitz. tit. Corpus cum causa, 2. the said cause of 9 Hen. 6. 44. well abridged. So in the other, upon such false return, the party grieved may have a special action upon his Case as is aforesaid.
Also if the party grieved, who is so disfranchised, be for the causes of his disfranchisement committed to prison, or if his Shop be shut up, or if with force he be removed out of their assembly, &c. in these and the like Cases he may have an action of false imprisonment, or anactionoftrespass quaredomum fregit,13 or of assault and battery; and in those actions, the causes of his disfranchisement ought to be pleaded, and shall be decided according to Law, 8 Edw. 3. 437. 8 Ass. 29. 31. If a Lay-man is Patron of an Hospital, he may visit it, and depose or deprive the Master for good cause: but if he is deprived without just cause, and by colour thereof is ousted, he shall have an Assize because he has no other remedy; but if the Ordinary deprives a Master who is Ecclesiastical without a cause, he shall not have an Assize, for he has no other remedy by appeal. Vide 6 Hen. 7. 14 a. F. N. B. 4 b. 27 Edw. 3. 85. 10 Eliz. Dyer 273. pl. 35.
Also it was resolved, That such return of disfranchisement ought to be certain, so that sufficient matter may appear to the Court to disfranchise the party; and so much the rather, because the party cannot have answer to it, as is said before.
Lastly, it was resolved, that for none of the causes contained in the said Certificate, the said James Bagg by Law ought to be removed; and therefore by the whole Court a Writ was awarded to restore him to his Franchise and Freedom, and so he was.
|[100 a] Note, Reader, in the Argument of this Case much was said to exhort Citizens and Burgesses to yield obedience and reverence to the Magistrates in their Cities and Boroughs, because they derive their authority from the King, and obedientia est legis essentia,14 and therefore it appeareth before, how they shall be punished who commit any contempt against them. But the principal question of this Case was, what Acts were sufficient causes in Law for the Disfranchisement of any Citizen or Burgess, &c.
Leges posteriores priores contrarias abrogant.15
[1. ][Ed.: The integrity of the upright shall guide them, and the perverseness of wrongdoers shall destroy them [Proverbs, xi. 3].]
[2. ][Ed.: A man shall not be established by wickedness; but the root of the righteous shall not be moved [Proverbs, xii. 3].]
[3. ][Ed.: Wickedness is short, virtue long. Profits are to be paid for.]
[4. ][Ed.: To God, to the Country, to you.]
[1. ][Ed.: The master, wardens and commonalty of tailors and clothworkers in the vill of Ipswich in the county of Suffolk,]
[2. ][Ed.: full power and authority to make and constitute reasonable laws, ordinances, and constitutions, in writing, which seem to them good, wholesome, useful, honest, and necessary, according to their discretions, for the good rule and governance, etc., of the aforesaid fellowship, etc.]
[3. ][Ed.: to the disinheritance or diminution of the prerogative or of any others, or against the common profit of the people, unless the same acts and ordinances have been examined and approvedby thechancellor and treasurer of England, the chief justices of both benches, or three of them, or else before the justices of assize on circuit in those parts etc., on pain of forfeiting forty pounds for each time when they do the contrary.]
[4. ][Ed.: aforesaid.]
[5. ][Ed.: whereby an action has accrued to the same master, wardens and commonalty.]
[6. ][Ed.: Idleness is the mother of all vices,]
[7. ][Ed.: lack of skill is the greatest punishment for a workman, for in each art everyone looks to those who are skilled:]
[8. ][Ed.: No one is prohibited from exercising several businesses or arts.]
[9. ][Ed.: that the plaintiffs should take nothing by their bill.]
[1. ][Ed.: Against the form of the aforesaid letters patent and in contempt of the said lady queen,]
[2. ][Ed.: That every person of that society has been used and accustomed to buy, sell, and trade freely all merchantable property within this realm of England from whatsoever person or persons, etc.]
[3. ][Ed.: a citizen and free man of the city and of that society.]
[4. ][Ed.: in those things that are granted by the Common Law to everyone, the custom of any region or place is not to be alleged.]
[5. ][Ed.: Parent of the country, and the family head of the whole realm,]
[6. ][Ed.: Chief Justice of England.]
[7. ][Ed.: Writ to enforce limits on a Royal charter.]
[8. ][Ed.: and by the whole court,]
[9. ][Ed.: it is indeed a useless thing to moderate wickedness;]
[10. ][Ed.: [Monopoly is said], when one single person buys the whole of any kind of merchandise and sets the price at his pleasure.]
[11. ][Ed.: Castor buys everything, so that he may sell everything.]
[12. ][Ed.: Writ directing the sheriff to determine what damage there would be if a Royal charter such as for a fair is granted.]
[13. ][Ed.: that the country should not be more burdened or vexed by that donation than is usual.]
[14. ][Ed.: in the above passage.]
[15. ][Ed.: Do not take the lower and the upper millstone as a pledge, because that would take his life; [Deut., xxiv. 6].]
[16. ][Ed.: For we read in Justinian that monopolies are not to be meddled with, because they do not conduce to the benefit of the common weal but to its ruin and damage. The civil Laws forbid monopolies: in the chapter of monopolies, one and the same Law. The Emperor Zeno ordained that those practising monopolies should be deprived of all their goods. Zeno added that even imperial rescripts were not to be accepted if they granted monopolies to anyone.]
[17. ][Ed.: Bracketted text omitted in the 1658 edition.]
[18. ][Ed.: by royal right.]
[19. ][Ed.: Bracketted text omitted in the 1658 edition.]
[20. ][Ed.: because what I cannot do by myself I cannot do through someone else.]
[21. ][Ed.: in a certain manner.]
[22. ][Ed.: of a wild nature, and no one’s property.]
[23. ][Ed.: wrong in itself,]
[24. ][Ed.: and other useless games,]
[25. ][Ed.: Dispensing with things that are wrong by prohibition (i.e. legislation) is rightfully granted to the king, on account of the impossibility of providing for every particular Case; and a dispensation is a release of the prohibited wrong, or a measure of necessity.]
[26. ][Ed.: for the public good.]
[27. ][Ed.: that the plaintiff take nothing by his bill.]
[28. ][Ed.: that privileges which in truth are to the prejudice of the common weal nevertheless have more specious frontispieces and pretext of public good than good and lawful grants; but an unlawful thing ought not to be admitted under the pretext of being lawful.]
[* ]The initial pleadings in this case are to be found at 13 Jac. 1 Rot. 23.
[1. ][Ed.: silently.]
[2. ][Ed.: against good morals,]
[3. ][Ed.: An attempt does no harm if it has no effect;]
[4. ][Ed.: A disposition does no harm if it has no effect.]
[5. ][Ed.: and likewise concerning similar things,]
[6. ][Ed.: in right of his house,]
[7. ][Ed.: the will is not to be taken for the deed.]
[8. ][Ed.: No free man shall be taken, or imprisoned, or disseised of his free tenement, or of his liberties or free customs, etc., unless by the Lawful judgment of his peers or by the Law of the land.]
[9. ][Ed.: by the Law of the land;]
[10. ][Ed.: by the judgment of his peers, etc.]
[11. ][Ed.: because whoever settles something without hearing the other side, even if he settles it fairly, does not act fairly,]
[12. ][Ed.: A form of habeas corpus, inquiring of the cause of an incarceration.]
[13. ][Ed.: [to show] why he broke the close,]
[14. ][Ed.: obedience is the essence of the Law,]
[15. ][Ed.: Later laws abrogate prior and contradictory laws.]