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

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.

Part Twelve of the Reports

The Twelfth Part of the Reports was published in 1656, after Coke’s death and following the parliamentary restoration to his son of the manuscripts seized by the Crown. It was published in English, in keeping with the new Laws banishing the Law French of Law Books of the Stuart publishers for the plain speaking of the Protectorate of the Commonwealth, as The Twelfth part of the Reports of Sir Edward Coke, Kt. of Divers Resolutions and Judgments given upon solemn Arguments, and with great Deliberation and Conference with the Learned JUDGES in Cases of Law, the most of them very Famous, being of the Kings especiall Reference, from the Council Table, concerning the Prerogative: as for the digging of Salt-peter, Forfeitures, Forrests, Proclamations, &c. and the Jurisdictions of the Admiralty, Common Pleas, Star-Chamber, High Commission, Court of Wards, Chancery. &c. and Expositions and Resolutions concerning Authorities, both Ecclesiasticall and Civill, within this Realm. Also the Formes and Proceedings of Parliaments, both England, & Ireland: With an Exposition of Poynings Law: With Alphabeticall Tables, wherein may be found the Principall Matters contained in this Booke. The Twelfth Part of the Reports was not as polished as those parts that appeared while Coke lived, and it is likely impossible now to discern whether he intended to finish and publish these, or more, of the notes from his manuscript. It is unlikely he intended all of these Cases to be publicly read. Even so, the Case reports are very significant, containing many of Coke’s notes on the most politically volatile and constitutionally significant Cases of his career. The cautious acceptance of these notes is typified by the note accompanying its initial publication, by Edward Bulstrode:

I have perused this Treatise, Intituled, the twelfth part of the Reports of Sir Edward Coke Knight; and I do, upon my reading thereof, conceive the same to be his Collections, and that the Printing of the same (containing very much good, and useful learning) will be for the good of this Nation, and of the Professors of the Common Law.

Edward Bulstrod.

The second of February, 1655

[* ]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.]