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Part Twelve 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 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.
The second of February, 1655
Ford and Sheldon’s Case.
(1606) Easter Term, 4 James I
In the Exchequer-Chamber.
First Published in the Reports, volume 12, page 1.
Ed.: Thomas Ford was a recusant, a person who refused to attend church in violation of the Law, making himself liable for a fine of £20 per month for non-attendance and for other penalties, includingforfeitureofhisgoods. Ford lent money to Sheldon, who gave Ford a deed giving him interests in some of his rents as well as recognizances, which are rather like the modern promissory note, for £21,000. When Ford was convicted of recusancy, the question arose of whether the recognizances, and the debt they represented, could be forfeit to the crown. In the Exchequer before all the judges and Chief Justice Popham of the King’s Bench, the court considered that debts are goods, that a penal Law cannot be extended by equity, but that the court construed the recognizances to have been entered in an effort to keep the money that might have been forfeit.
In an information in the Exchequer-Chamber for the King, against Thomas Ford, Esquire, Ralph Sheldon, Esquire, and divers others; the Case was thus.
Thomas Ford was at all times before the Statute of 23 Eliz. a Recusant; and for money lent to Sheldon, some before 23 Eliz. and some after. Ford took a Recognizance in the names of the other Defendants, and took also a grant of a Rent-charge to them in fee, with condition of Redemption by Deedindented: And the Recognizance was conditioned for performance of Covenants in the said Indenture, and afterward the Statute of the 29 Eliz. was made, by which it was enacted, that if default of payment was made in any part of payment (viz.) of 20 l. for every month, &c. And that then and so often the Queens Majesty by processe out of the Exchequer may take, seize, and enjoy all the goods, and two parts, &c. And after the said Act, and before the 34th year of the reign of the late Queen, Ford lent great summs of money to Sheldon, and for assurance of it took a Rent-charge by Deed Indented, with condition of Redemption: and took also several Recognizances in the names of some of the other Defendants, for performance of Covenants, &c. as is aforesaid;which Recognizances did amount in all to the sum of 21,000 l. all which were to the use of the said Ford, and to be at his disposition, and they were forfeited: And afterwards, viz. 41 Eliz., Ford was convict of Recusancy, and did not pay 20 l. per mensem,1 according to the Statute. And if upon all this Case the King should have the benefit of these Recognizances, was the question.
And this Case was debated by Counsell learned on both sides in Court. And it was objected by the Counsell of Ford, that if the Recognizance had been acknowledged to Ford himself, they should not be forfeited to the King, for the Statute speaks only of Goods. And Debts are not included within the word (Goods). And therefore, if the King grant all the Goods which came to him by the Attainder of J. S., the Patentee shall not have Debts due to him, for that the Grant only extends to Goods in possession, and not to things in action. And this Act is a Penall Law, and shall not be extended by equity.
2. It was objected that these Recognizances were acknowledged good to perform Covenants in an Indenture concerning a Rent-charge: And therefore savers of the realty, and are not within the intention of the said Act, which speaks only of Goods.
3. No fraud or covin appears in the Case; And then forasmuch as no Act of Parliament extends to this Case, it was said, that the Common Law doth not give any benefit to the King: for at the Common Law, in a far stronger Case, if Cestuy que use2 had been attaint of treason; this use forasmuch | as it was but a trust and confidence, of which the Law did not take notice, it was not forfeited to the King, and could not be granted: and if an Use shall not be forfeited, of which there shall be a Possessio fratris, &c.3 and which shall descend to the heir; A multo fortiori,4 a mere trust and confidence shall not be forfeited.
4. It was objected, that if the Forfeiture in this Case at the Bar accrues to the King, by the Statute of 29 Eliz. it ought to be by force of this word (Goods): But that shall not be without question in this Case. For Ford hath not any Goods, but only a mere trust and confidence, which is nothinginconsideration of Law.
And the Court cannot adjudge that these Recognizances belong to the King by equity of the said Statute, because it is penall: Also one Recognizance was taken in the names of some of the other Defendants, before the Statute of the 29 Eliz. which gave the Forfeiture.
And for that reason, it cannot be imagined that it was to defeat the King of a forfeiture, which then was not in Esse,5 but given afterwards.
As to the first objection, it was answered and resolved by all the Barons and by Popham, Chief Justice of England, and diverse others of the Justices, with whom they conferred, that if the recognizances had been acknowledged to the party himself, that they were given to the King without question for personall actions are as well included within this word, Goods, in an Act of Parliament, as Goods in possession. But inasmuch as by the Law things in action cannot be granted over, for that cause by his generall grant, things in action (which only he may grant by his prerogative) without special words passe not for his Prerogative, can never passe by general words. And it was affirmed, that so it had been resolved before, That is to say, that Debts were forfeited to the King by the said Act of the 29 Eliz. And where the Statute saith, “shall take, seize, and enjoy all the Goods, and two parts, &c.” Although a debt due to a recusant cannot be taken and seised, yet inasmuch as there is another word, viz. Enjoy, the King may well enjoy the Debt; and by process out of the Exchequer levy it; and so “take and seise” refers to two parts of Lands in possession, and Enjoy relates to goods.
As to the second objection. It was originally for the loan and forbearance of mony. And as well the Recognizance as the Annuity were made for the security of the payment of the said money: Also when the Recognizances are forfeited, they are but Chattels personal.
As to the third objection, there was Covin6 apparent: for when he was a Recusant continually after that Statute of the 23 Eliz. and for that chargeable to the King, for the forfeiture given by the same Act, it shall be intended that he took these Recognizances in the name of others, with an intent to prevent the King of levying of the Forfeiture: and all the Recognizances, which were taken in other men’s names after the said Act, shall be presumed in Law to be so taken, to the intent to defeat the King of his Forfeiture: True it is, that an Use or Trust shall not be forfeited for Treason or other offence by the Common Law, because it is not a thing of which the Common Law taketh any notice, for that Cestuy que use, hath neither Jus in re,7 nor Jus ad rem;8 but by the Common Law, when any act is done with an intent and purpose to defraud the King of his lawfull duty, or Forfeiture by the Duty, or Forfeiture by the Common Law, or Act of Parliament, the King shall not be barred of his lawful Duty or Forfeiture Per obliquum,9 which belongs to him by the Law, if the act was made De directo.10
And therefore if a man Out-lawed buy Goods in the names of others, the King shall have the Goods in the same manner, as if he had taken them directly in his own name: So if any Accountant to the King purchase Lands in the names of others, the King shall seize those lands for mony due unto him. | And this appears by the Case of Walter Chirton, Trin. 24 Ed. 3. Rot. 4 in Scaccario, where the Case was, that Walter de Chirton was indebted to the King 1800 l. which he had received of the King’s Treasure, and did purchase certain Lands with the Kings money; and by Covin had caused the Vendor to enfeoff his Friends in Fee to defraud the King, and notwithstanding took the Profits himself: and afterwards Walter Chirton was committed to the Fleet for the said Debt. And all the matter was found by Inquisition, and by Judgment the Land was seised into the King’s hands Quousque;11 for in case of the King, an act done by Covin, Per obliquum, shall be equal to on act done De directo, to the party himself; for Rex fallere non vult, falli autem non potest:12 See another President, Trin. 24 Ed. 3. Rot 11. Ex Recum. Regis, where one Thomas Favell was Collector of Tithes and Fifteenths, and was seised ofcertain Lands in Fee-simple, and having diverse Goods and Chattels, Dieintromissionis de collectione et levatione13 of Tenths and Fifteenths Languidus in extremis alienavit tenementa sua et bona et catalla diversis personis,14 and died without Heir or Executor. In this case by the Prerogative of the King, Proces was made as well against the Ter-tenants, as against the possessors of the Goods and Chattells although they were not Executors, &c. Ad computandum pro collectione praedicta et ad respondendum et satisfaciendum inde Regni, &c. Et hoc per Cancellarium Angliae et Capitales Justiciarios Angliae, et aliorum Justiciariorum utriusque Banci; quod nota bene.15
As to the fourth objection, Non refert, whether the duty to accrue to the King by the Common Law, or by Statute; but be it the one way or the other, no subterfuge that the party can use can defeat or defraud the King: and although one of the recognizances was taken before the Statute of 29 Eliz. yet that was to his use, and for that it is in the nature of a Chattell in him, and was taken in the names of others to prevent the Queen of her forfeiture, which she might have by the Act of 23 Eliz.; and although Ford was not convict until 41 Eliz. that is not material, for at all times before that, he was subject to a Forfeiture for his Recusancy.
Case of Non Obstante, or Dispensing Power.
First Published in the Reports, volume 12, page 18.
Ed.: In this note, Coke considers the limits on Parliamentary control of the King, and when the King may act in his prerogative notwithstanding an act of Parliament to the contrary. He resolves that Parliament cannot bind the King in a matter within his personal prerogative but it may in all other matters.
Note; a good diversity when the King shall be bound by act of Parliament, so that he cannot dispence with it by any clause of Non obstante.1 No Act can bind the King from any Prerogative which is sole and inseparable to his person, but that he may dispense with it by a Non obstante; as a Soveraign power to command any of his Subjects to serve him for the publick Weal; and this solely and inseparably is annexed to his person; and this Royall power cannot be restrained by any act of Parliament, neither in Thesi, nor in Hypothesi,2 but that the King by his Royall Prerogative may dispense with it; for upon commandment of the King, and obedience of the Subject, doth his government consist; as it is provided by the Statute of 23 Hen. 6. cap. 8. that all Patents made or to be made of any Office of a Sheriff, &c. for term of years, for life, in Fee Simple, or in tail, are void and of no effect, any Clause or Parol de non obstante, put, or to be put into such Patents to be made, notwithstanding. And further, whosoever shall take upon him or them to accept or occupy such office of Sheriff by virtue of such Grants or Patents, shall stand perpetually disabled to be or bear the office of Sheriff within any County of England by the same authority; and notwithstanding that by this Act, 1. The Patent is made void. 2. The King is restrained to grant non obstante. 3. The Grantee disabled to take the Office; yet the King by his Royall soveraign power of commanding, may command by his Patent, (for such causes as he in his wisdom doth think meet and profitable for himself and the Commonwealth, of which he himself is solely Judge,) to serve him and the Weal publike, as Sheriff of such a County for years, or for life, &c. And so was it resolved by all the Justices of England, in the Exchequer-Chamber, 2 Hen. 7. 66. And so the Royall power to pardon Treasons, Murthers, Rapes, &c. is a Prerogative incident solely and inseparably to the person of the King; and for this Non obstante an Act of Parliament to make the Pardon of the King void, andrestrain the King to dispense with this by Non obstante, and to disable him to whom the Pardon is made to take or plead it, shall not bind the King but that he may dispense with it: and this is well proved by the Act of 13 Ric. 2. Parliament 2. cap. 1. For by this it was enacted, that no Charter of Pardon from henceforth be allowed by whatsoever Justices, for Murther, Treason, Rape of a woman, not specified in the said Charter; and if it be otherwise, be the Charter disallowed.
Note, This was the surest way that the Parliament could take to restrain the King to pardon Murther, unless that he Pardon it by express terms, which they thought the King would not, for they knew that the King could not be restrained by any Act to make a Pardon; for mercy and power to Pardon is a Prerogative incident, solely and inseparably to the person of the King: And it hath oft-times been adjudged that the King can Pardon Murther by generall words without any expresse mention, with Non obstante, the said Statute, see 4 Hen. 4. cap. 31. In which it was ordained that no Welshman be Justice, | Chamberlain, Treasurer, Sheriff, Steward, Constable of a Castle, Escheator, Coroner, or chief Forester, nor other Officer whatsoever, nor Keeper of Records, &c. in any part of Wales, notwithstanding any Patent made to the contrary, with clause of Non obstante licet sit Wallicus natus:3 and yet without question, the King may grant this with a Non obstante. So Purveyance for the King and his household is incident solely and inseparably to the person of the King, and for this cause the Act of Parliament held in time of H. 3. De tallagio non concedendo,4 tit. Purveyance, in Rastall, which bars the King wholly of Purveyance, is void, as it appears in Co. lib. fol. 69. But in all such cases, although that the King may dispense with Statutes, yet a generall dispensation or grant without Non obstante is void; But in things which are not incident solely and inseparably to the person of the King, but belong to every Subject, and may be severed, there an act of Parliament may absolutely bind the King; as if an Act of Parliament to disable any Subjects of the King, to take any Land of his Grant, or any of his Subjects (as Bishops) (as it is done by the Statute 1 Jac. c. 3.) to grant to the King, this is good; for to Grant or take Lands or Tenements is common to every Subject; and for this it is not Proprium quarto modo,5 to Kings, Scilicet omni soli et semper.6Vide the Case of Deans and Chapters upon the Statute of 13 Eliz. vide 8 Ric. 2. cap. 2. & 33 Hen. 6. that none shall be Justice of Assise, &c. in the County where he was born or did inhabite; and yet the King with special Non obstante may dispense with this, for this belongs to the inseparable Prerogative of the King, Viz. his power of commandment to serve, &c.
Q. If High Commissioners Have Power to Imprison.
(1607) Hilary Term, 4 James I Conference in the Serjeants Inn.
First Published in the Reports, volume 12, page 19.
Ed.: In this note, Coke records a debate among the Judges and senior members of the bar over whether the church court, the High Commission, has the power to imprison. The Commission is limited only to hearing ecclesiastical offenses and only a limited power of incarceration.
Note, Mich. 4 Jac. post prandium,1 there was moved a question amongst the Judges and Serjeants at Serjeants Inne, if the high Commissioners in Ecclesiasticall causes, may by force of their Commission imprison any man or no?
First of all it was resolved, by all, that before the Statute of 1 Eliz. cap. 1. the King might have granted a Commission to hear and determine Ecclesiasticall causes; but then, notwithstanding any clause in their Commission, the Commissioners ought to proceed according to the Ecclesiasticall Law allowed within this Realm, for he cannot alter neither his temporal nor his Ecclesiasticall Laws within this Realm by his Grant or Commission; Vide Caudrey’s Case, Fifth Report. [And they could not in any case have punished any delinquent by fine or imprisonment unless they had authority so to do by Act of Parliament.]2 Then all the question rests upon the Act of 1 Eliz. which as to this purpose rests upon three branches.
1. Such Commissioners have power to exercise, use, occupy, execute all Jurisdiction Spirituall and Ecclesiasticall.
2. Such Commissioners by force of Letters Patents have power, to visit, reform, &c. all Heresies, &c. which by any manner of Spirituall or Ecclesiasticall power, &c. can, or lawfully may be reformed, &c. so that these branches limit the jurisdiction, and what offences shall be within the Jurisdiction of such Commissioners, by force of Letters Patent of the King; and this is all, and only such offences may lawfully be reformed by the Ecclesiasticall Law.
3. The third branch is, that such Commissioners, after such Commission delivered to them so authorised, shall have power and Lawful authority by | virtue of this act, and the said Letters Patent, to exercise, use, and execute all the premises according to the tenor and effect of the said Letters Patent. This branch gives them power to execute their Commission. But it was objected, that this branch doth not give the Queen power, by her Letters Patent, to alter the proceedings of the Ecclesiasticall Law, or gave to the Queen absolute power by her Letters Patent to prescribe what manner of proceedings, or punishment concerning the Lands, Goods, or bodies of the Subject; and this appears by the title of the Act restoring to the Crown the ancient Jurisdiction, so that the intent was to make restitution, and not any innovation in the proceeding or punishment: And it was observed that this last branch gave to them power to execute all the Premisses; according to the tenor and effect of the said letters patent, so that these words, “So authorised” in the said Letters Patents, hath relation only to the authority of the Letters Patent, before specified; Viz. such as gave to them power to visit, reform, redress, order, correct, and amend all Errors, Heresies, Scismes, Abuses, Contempts, and Enormities whatsoever; which, by any manner of Spirituall or Ecclesiasticall power, can or may lawfully be reformed, &c. These are the tenor and effect of the Letters Patent before remembered; and if any other construction shall be made;
1. It shall be against the express letters, scilicet,3 said Letters Patent.
2. It shall be full of great peril and inconvenience, for then not only imprisonment of body, but confiscation of lands, goods, &c. And some corporall punishment may be imposed for Heresie, Scisme, Incontinence, &c. Also power may be given to them to burn any man for Heresie; which would be against the Common Law of the Land.
[Vide a notable Case adjudged in this point, Hill. 42 El. fol. 389. as to imprisonment, Smith’s Case, for at the last Consultation was granted: And at last by the better opinion, as to things committed to them by Commission, they may put fine and imprisonment.]4
Floyd and Barker.
(1607) Easter Term, 5 James I In the Court of Star Chamber.
First Published in the Reports, volume 12, page 23.
Ed.: This note records the decision of the Chancell or and both Chief Justices that a person acquitted of murder cannot pursue for conspiracy the grand Jury who indicted him, or any of the parties to the proceedings, although he can sue someone who conspired out of court and later swore in court as a part of a conspiracy. Judges are immune from suit. The Case is an important basis for the Common Law immunity from suit of Judges and counsel.
Conspiracy doth not lye against a Juror or Indictor, but against a Witnesse.In this very Term, between Rice ap Evan ap Floyd, and Richard Barker, one of the Justices of the Grand Sessions in the County of Anglesey, and other defendants: It was resolved by Popham and Coke, Chief Justices, the Chief Baron, and Egerton, Lord Chancellor, and all the Court of Star Chamber, that when a grand Inquest indicts one of Murther or Felony, and after the party is acquitted, yet no conspiracy lies for him who is acquitted, against the Indictors, for this that they are returned by the Sheriff by processe of Law to make enquiry of offences upon their Oath, and it is for the service of the King and the Common-wealth. And as it is said in the 10 Eliz. 265. they are compellable to serve the Law, and the Court: and their Indictment or Verdict is matter of Record, and called Veredictum,1 and shall not be avoided by surmise or supposal, and no attaint lies, And for this reasontheyshallnotbeimpeached, for any conspiracy or practice, before the Indictment: for the Law will not suppose any unindifferent, when he is sworn to serve the King: And with this agrees the Books in 22 Ass. 77. 27. Assise, p. 12. 21 Edw. 3. 17. 16 Hen. 6. 19. 47 Ed. 3. 17. 27 Hen. 8. 2. F. N. B. 115 a. But it is otherwise of a Witnesse, for if he conspire out of the Court, and after swear in the Court, his Oath shall not excuse his conspiracy before; for he is a private person, produced by the party, and not returned by the Sheriff, who is an Officer sworn, and the Jurors are sworn in Court as indifferent persons: And the Law presumes, that every juror will be indifferent when he is sworn; Nor will the Law admit proof against this presumption.
2. It was resolved, that when the party indicted is convict of Felony by another Jury, upon “Not guilty pleaded,” there he never shall have a Writ of Conspiracy, but when the party upon his arraignment is Legitimo modo acquietatus:2 but in the case at the Bar, the grand Jury who indicted one William Price for the murder of Hugh ap William, the Jury, who upon not guilty pleaded, convicted him, were charged in the Star Chamber for Conspiracy against him, and indicted and convicted, which manner of Complaint was never seen before: for if the party shall not have a Conspiracy against the Indictors, when the Prisoner is acquitted upon his indictment, a Multofortiori3 when he is lawfully convict, he shall not charge neither the Grand Inquest by whom he was indicted, nor the Jury who found him guilty: for the Law in such Case doth not give any attaint, for this that he was indicted by the Oath of twelve men at the least, and found guilty by twelve: And in these Cases, the King is the sole party to the proceedings against the Prisoner: but on the other side, when a Jury hath acquitted a Felon or Traitor against manifest proof, there they | may be charged in the Star Chamber, for their partiality in finding a manifest Offender not guilty, Ne maleficia remanerent impunita.4 And it will be a cause of infinite vexation and occasion of perjury and smothering of great Offences, if such averments and supposals shall be admitted after ordinary and judiciall proceeding: and it will be a means Ad deterrendos et detrahendos juratores a servitio Regis.5
3. It was resolved that the said Barker who was Judge of Assise, and gave judgment upon the verdict of death, against the said W. P. and the Sheriff who did execute him according to the said Judgment, nor the Justices of Peace who did examine the Offender, and the Witnesses for proof of the Murther before the Judgment, were not to be drawn in question in the Star Chamber, for any Conspiracy, nor any witnesse nor any other person ought to be charged with any Conspiracy in the Star Chamber, or elsewhere, when the party indicted is convicted or attaint of Murther or Felony: and although the Offender upon the Indictment be acquitted, yet the Judge, be he Judge of Assise, or a Justice of Peace, or any other Judge, being Judge by Commission and of Record, and sworn to do Justice, cannot be charged for Conspiracy, for that which he did openly in Court as Judge or Justice of Peace: and the Law will not admit any proof against this vehement and violent presumption of Law, that a Justice sworn to do Justice will do injustice; but if he hath conspired before out of Court, this is extrajudicial; but due examination of Causes out of Court, and inquiring by Testimonies, Et similia,6 is not any Conspiracy, for this he ought to do; but subornation of Witnesses, and false and malicious Persecutions, out of Court, to such whom he knowes will be Indictors, to find any guilty, &c. amounts to an unlawful Conspiracy.
And Records are of so high a nature, that for their sublimity they import verity in themselves; and none shall be received to aver any thing against the Record itself; and in this point the Law is founded upon great reason; for if the Judiciall matters of Record should be drawn in question, by partial and sinister supposals and averments of Offenders, or any on their behalf, there never will be an end of Causes: But Controversies will be infinite; Et infinitum in jure reprobatur:7 and for this it is adjudged in the 47 Ed. 3. 15. that a Judge who hath a Commission, Viz. that is of Record, shall not be charged in Conspiracy; which is to be understood of what he did in Court, for the reasons and causes aforesaid: and with this agree the Book, 21 Ed. 4. 67. & 27 Ass. pl. 12. and the reason is for this, that though the party is acquitted, yet the accusing stands with the Record: and accordingly was the Law taken in this Case. But in an Hundred court, or other Court which not of Record, there averment may be taken against their proceedings, for that it is no other than matter in pais,8 and not of Record; as it appears in the 47 Ed. 3. 15. Also one shall never assign for Error, against that which the Court doth as Judges; as to say, that the Jury gave Verdict for the Defendant, and the Court did enter it for the Plaintiff, or to say that the party who levied the Fine was dead before the Fine was levied, or such like. Vide 1 Hen. 6. 4. 39 Hen. 6. 52. 7 Hen. 7. 4. 11 Hen. 7. 28. 1 Mar. Dyer 89. But in a Writ of false Judgment, the Plaintiff shall have a direct averment against that which the Judges in the Inferior Court have done as Judges,Averment.Quia Recordum non habent’9 and with this accords 21 Hen. 6. 34. And as a Judge shall not be drawn in question in the Casesafore said, at the suit of the parties, no more shall he be charged in the said Cases before any other Judge at the suit of the King. And for this in the 27 Ass. pl. 18. One was indicted and arraigned at the suit of the King, that as he was a Justice of Oyer and Terminer,10 where certain persons were indicted | of Trespass before him, he made an entry of Record, that they were indicted of Felony: And it was adjudged that this Indictment was against the Law, for this that he was a Justice by Commission; and that is of Record; and this present act shall be to defeat the Record, Hoc est,11 to aver against that which he did as Judge of Record, which cannot be by the Law. Vide 27 Ass. pl. 23. 2 Rich. 3. 9. 28 Ass. pl. 21. 9 Hen. 6. 60. And it was said, that it was the case of one Nudigate, who as a Justice of Peace had Recorded a Force upon a View, which he did as Judge-upon-Record; and a Bill was exhibited against him in this Court, for this, that he had falsely made a Record, where indeed there was not any Force: and by the opinion of Catlyn and Dyer, chief Justices, it was resolved, that that thing, that a Judge doth as Judge of Record, ought not to be drawn in question in this Court.
Note well, that the said matters done at the Bar were not examinable in the Star Chamber; and for this it was ordered and decreed by all the Court, that the said Bill without any answer to it, by the said Richard Barker, shall be taken off the File and cancelled, and utterly defaced: And it was agreed, that insomuch as the Judges of the Realm have the administration of Justice under the King, to all his Subjects, they ought not to be drawn into question for any supposed corruption, which extends to the annihilating of a Record, or of any judiciall proceedings before them, or tending to the Slander of the Justice of the King, which will trench to the scandal of the King himself, except it be before the King himself; For they are only to make an account to God and the King, and not to answer to any suggestion in the Star Chamber; for this would tend to the scandall and subversion of all Justice. And those who are the most sincere, would not be free from continual Calumniations, for which reason the Orator said well, invigilandum est semper, multae insidiae sunt bonis.12
And the reason and cause why a Judge, for any thing done by him as Judge, by the authority which the King hath committed to him, and as sitting in the seat of the King (concerning his Justice) shall not be drawn in question before any other Judge, for any surmise of corruption, except before the King himself, is for this; the King himself is De jure to deliver Justice to all his Subjects; And for this, that he himself cannot do it to all persons, he delegates his power to his Judges, who have the Custody and Guard of the King’s oath.
And forasmuch as this concerns the honour and conscience of the King, there is great reason that the King himself shall take account of it, and no other.
And Thorp who was drawn in question for corruption, before commissioners, was held against the Law, and upon that he was pardoned; and it is contained in the same Record, Quod non trahitur in exemplum.13Vide the conclusion of the Oath of a Judge. Vide the Chronicle of Stow, 18 Edw. 3. 312.
Note, Thomas Weyland, Chief Justice of the Common-bench, Sir Ralph Hengham Justice of the Kings Bench; and the other Justices, were accused of Bribery and Corruption; and their causes were determined in Parliament, where some were banished, and some were fined and imprisoned.
Vide 2 Ed. 3. fol. 27. That the Justices of Trayl-baston14 (so called for their summary proceeding) were in a manner Justices in Eyre; and their authority was founded upon the Statute of Ragman, which you may see in the old Magna Charta, Vide the form of the Commission of the | Trayl-baston, Hollingshead, Chron fol. 312. And note it appears by the said President and Chronicle, that the King did examine the corruption of his Judges before himself in the Parliament, and not by force of any Commission.
Absurdum est affirmare, recredendum esse non judici.15
Of Oaths Before an Ecclesiasticall Judge Ex Officio.
(1606) Easter Term, 4 James I.
First Published in the Reports, volume 12, page 26.
Ed.: In these notes Coke records the consultation between himself and the Chief Justice Popham of the King’s Bench regarding a bill then in Parliament about the procedures for investigations by an ordinary, that is a bishop hearing ecclesiastical Cases in his diocese. Their most important conclusion was that no one may be punished for crimes of thought. There is also important language regarding the Law, that it is the inheritance of the subject and cannot be deprived in any way but by an act of Parliament.
The Ordinary cannot enforce a man to answer generall Articles Ex Officio.Note, Pasch. 4 Jacobi, In the time of the Parliament, the Lords of the Councell of Whitehall demanded of Popham, Chief Justice and myself, upon motion made by the Commons in Parliament, in what cases the Ordinary may examine any person Ex officio1 upon oath; and, upon good consideration and view of our Books, We answered to the Lords of the Council at another day in the Councell Chamber.
“1. That the Ordinary cannot constrain any man, Ecclesiasticall or Temporall, to swear generally to answer to such interrogatories as shall be administered unto him; But ought to deliver to him the Articles upon which he is to be examined, to the intent that he may know whether he ought by the Law to answer to them: and so is the course of the Star-chamber and Chancery; the defendant hath the Copy of the Bill delivered unto him, or otherwise he need not to answer to it.
“2. No man Ecclesiasticall or Temporall shall be examined upon secret thoughts of his heart, or of his secret opinion: But somthing ought to be objected against him what he hath spoken or done. No Lay-man may be examined Ex officio, except in two Causes, and that was grounded upon great reason; for Lay-men for the most part are not lettered, wherefore they may easily be inveigled and entrapped, and principally in Heresie and Errors: And this appears by an Ordinance made in the time of Edward I. tit. Prohibition, Rastal.”
The words of which Ordinance are, And Quod non permittant quod alioqui laici in balliva sua in aliquibus locis conveniant, ad aliquas recognitiones per juramenta sua faciendas, nisi in causis matrimonialibus et testamentariis.2 And the reason that the Ecclesiasticall Judge shall examine them in these two Cases, is for this; that Contracts of Matrimony, and the Estates of the dead, are many times secret; and they do not concern the shame and infamy of the party, as Adultery, Incontinency, Usury, Simony, Hearing of Mass, Heresie, &c.
And for this cause in these cases, and such like, the Ecclesiasticall Judge ought not to examine Partem ream,3 upon their Oath: for as a civilian said, that this was inventio diaboli ad destruendas miserorum animas ad infernum:4 and in the Register, fol. 36. 6. there is a Prohibition in this form, Praecipimus tibi quod non permittas quod aliqui laici ad citationem talis Episc’ aliquo loco conveniant de caetero ad aliquas recognitiones factas vel sacramenta praestanda, (the one is the exposition of the other) nisi in casibus matrimonialibus et testamentariis: and there is an attachment upon it, pone per vad’ talem Episc’: quod sit coram Justiciariis nostris, &c. ostensurum quare fecit summoneri, et per censuras eccles’ distringi laicas personas vel laicos homines et foeminas ad comparendum coram eo ad praestandum juramentum pro voluntate sua ipsis invitis in grave coronae praejudicium | et dignitatis nostrae Regiae, necnon contra consuetudinem regni nostri; et habeas ibi nomina plegiorum, &c. teste, &c.5 by which it doth appear, that this was not only against the said Ordinance, but also against the custome of the Realm, which had been time out of mind, and also in prejudice of the Crown and Dignity of the King: and with this agrees F. N. B. fol. 41. And vide the Case reported by the Lord Dyer, (but the Case is not printed,) Trin. 10 Eliz. one Leigh, an Attorney of the Common Pleas, was committed to the Fleet by the High Commissioners in a case Ecclesiasticall, for this, that he had been at Masse, and refused to swear to certain Articles to be proposed to him. And held, that although in such case, Ecclesiasticall Jurisdiction is saved by the Statute of 10 Eliz. yet they ought not in such case to examine upon his Oath: and hereupon he was delivered by all the Court of Common Pleas [upon the return of the matter upon a habeas corpus.6 ]
And in Mich. 18 Eliz. Dyer, fol. 175. in Hind’s case, who would not swear Commissionariis Eccles’ super articulos pro usura, et ea de causa commissus est Gaolae de le Fleet.7 He was delivered by Habeas corpus per totam Curiam.8 This was also because they could not imprison.
Vide le Statute 25 H. 8. cap. 14. Which is declaratory as to this point: It standeth not with the right order of Justice nor good equity, that any person should be convict, and put to the losse of his life, good name, or goods, unless it were by due accusation, and Witnesses, or by presentment, verdict, confession, or processe of Out-lawry, &c. And it is not reasonable that any Ordinary upon suspition conceived of his own fancy, without due accusation or presentment, should put any Subject of this Realm in infamy and slander of Heresie, to the perill of life, losse of good name, or goods; (et Paulo antea)9 the most expert and learned man of this Realm, diligently laying wait upon himself, cannot eschew and avoid penalty and danger, &c. if he should be examined upon such captious interrogatories, as is and hath been accustomed to be ministred by the Ordinaries of this Realm, in Case where they willsuspect any man of Heresie: and this was the Judgment of all the said Parliament. See F. N. B. Justice of Peace 72. Lamb, in his Justice of Peace 338. Crompt. in his Justice of Peace 36. 6. In all which it appears, that if any be compelled to answer upon his Oath, where he ought not by the Law, thatthisisoppression and punishable before a Justice of Peace, a Justice of Assise, &c. for this is an Article of charge, to enquire of all Oppressions: And as to that which was objected, that for a very long time, divers had been examined upon Oath in Ecclesiasticall Courts; as to this it was answered, that it might very well be, and not against Law, for the words of the Treatise or Ordinance, and of the Register, are, Contra voluntatem eorum, &c.10 So that if any assent to it, and take it without exception, that is not Contra voluntatem eorum, But to enforce any to take it, who ought not to take it by the Law, is a great oppression; but if any person Ecclesiasticall be charged with any thing which is punishable by our Law, as for usury, &c. there he shall not be examined upon Oath, for this, that his oath is evidence against him at the Common Law, and to do it incurs the penalty of the Statute: but witnesses may be cited to testifie.Register, tit. Consult. F. N. B. 53d. Also by the Statute 2 Hen. 4. cap. 15. it is provided, that Dictus Diocessanus per se vel per Commissarios suos contra hujusmodi personas, &c. Et ad omne juris effectum, publice et judicialiter procedat et negotium hujusmodi, &c. terminet juxta canonicas sanctiones, which words, Juxta Canonicas sanctiones,11 give them power to proceed according to their Cannons, and excludes the Common Law; and by pretext of this in the cases mentioned in the said act, they examined as well Lay-people as | Clerks, upon their Oaths concerning Heresie, erroneous Opinions, &c. mentioned in the said act in the Reign of Henry the fourth, Henry the fifth, Henry the sixth, Edward the fourth, Richard the third, Henry the seventh unto the time of the said Act of 25 Hen. 8. And for this in the reign of Henry the eighth nor in the reign of Edward the sixth no layman was examined upon his Oath, except in the said two Cases of Matrimony and Wills: but in the Raign of Queen Mary, this Act of 2 Hen. 4. was revived; and then all the Martyrs who were burnt were examined upon their Oaths: and afterwards by the 10th Eliz. the said Act of 2 Hen. 4. is repealed, by which the Common-Law is in full force and effect: And for this cause all the pretence of possession and practice which the Ecclesiasticall Courts have had is strongly answered by this which hath been said, that the words of the said Treatise and Register are, Contra voluntatem eorum, &c. And those who have so taken it have assented to it, and that stands with Law.
Note, that King John12 after he had murthered his Nephew Arthur, and Neice Ellenor, the Issue of his elder Brother Geffrey, after he had lost Normandy, Aquitain, and Anjowe, after that his Commons for unjust vexation disobeyed him, his Nobles revolted from him, the Clergy oppressed by him, and that he stood excommunicated by the Pope, and his Kingdom interdicted, he for his protection, granted by his Charter of 13 Maii, anno regni 14. submitted himself to the obedience of the Pope: And after in the fourteenth year of his Raign, as one destitute of all succour and safety, and from day to day in fear to lose his Crown, by another charter he resigned his Crown and Realm to the Pope Innocent and his Successors, by the hands of Pandolph his Legate, and took it of him again to hold of the Pope, which was utterly void, for this, that the Dignity is an inherent, inseparable to the Royall blood of the King, and descendable to the next of blood of the King, and cannot be transferred to another, no more then a Duke, or Earl, or Baron, or other Dignity, may transfer over their Dignity, for these are incidents inseparable; also the Pope was an Alien born, and therefore was not capable of Inheritance within England:
By colour of which submission and resignation, the Pope and his Successors exacted great summs of the Clergy and Layity of England, Pro commutandis poenitentiis,13 to maintain the height and dignity of the Pope: And for the better inriching of the Coffers of the Pope, Pope Gregory the ninth sent Otho Cardinalis de Carcere Tulliano, into this Realm, when there was indignation betwixt Henry the third and his Nobles, to collect money for the Pope, who did collect infinite summs of money, so that it was said of him, Quod legatus saginatur bonis Angliae,14 which Legate held his Councell at London, anno Domini 1237, and 22 Hen. 3. And for the better findingout Offences which should be redeemed with money, he, with the assent of the Bishops of England there assembled, made divers Cannons, amongst which one was, Jus jurandi Calumniae in causis ecclesiasticis cujuslibet, et de veritate dicendi in spiritualibus quoque, ut veritas facilius aperiatur et Causae celerius determinentur, Statuimus de Caetero prestari in Regno Angliae secundum Canonicas et legitimas Sanctiones, obtenta in contrarium Consuetudine non obstante, &c.15
By which Cannon it appears that the Law and Custom of England was against this examination of the party Defendant upon his Oath, for it is said, Statuimus de Caetero prestari in regno Angliae,16 so that this was a new Law, and took its effect De caetero.17
2. Obtenta in contrarium Consuetudine non obstante.18 And this very well agrees with the Register and the said Treatise De Regia prohibitione, And the other Authorities, That the Law and Custom of England | was, that Lay-people in criminall causes, be they Ecclesiastical or Temporall, shall not be examined upon their Oath (only in causes matrimoniall and testamentary) otherwise it is of Clerks, as is aforesaid: And for this, that it appears by the said Cannon it self, that this was against the Law and Custom of England; whence it follows that this Cannon shall not bind, for that the Law and Customs of England cannot be changed without an Act of Parliament, for this, that the Law and Custom of England is the Inheritance of [the subject,]19 which he cannot be deprived of without his assent in Parliament: And it appears in Linwood, cap. Jure jurandi, fol. 8. 6. That Boniface, Bishop of Canterbury, anno 1272. and 57 Hen. 3. a little before the death of that King made this Cannon, Statuimus quod Laici de subditorum peccatis et excessibus corrigendis per praelatos et judices ecclesiasticas inquiratur ad praestandum de veritate dicenda sacramentum per excommunicationis sententias. Si opus fuerit compellantur impedientes, vero ne hujusmodi juramentum praestetur per interdicae est excommunicatio sententia arceantur.20 In which Cannon it is to be observed, that this extends to Lay-people; for, as appears, the Ecclesiastical Judge mayexamine those of the Clergy upon their Oathes; and note, Linwood, cap. Jure jurando, fol. 6. litera E. saith so. Hic dicitur causa editionis hujus statuti, viz. Praelati Ecclesiastici procedebant ad inquirendum de criminibus et excessibus subditorum suorum et laïci (nota hic) suffulti potestate dominorum temporalium in hujusmodi inquisitionibus noluerunt jurare de veritate dicenda.21
Note well what the cause was, why Lay-people refused to be examined for Crimes and Excess.
2. It appears, that the Judges of the Common Law by their Prohibition did interdict, &c. as it appears by the Register and the other Authorities; in the time of Edward I. and other Kings, Incroachments were made upon the Subjects, which are here called Impedimentes, but now the canon saith Impellat.22
3. That where by the Law they may examine Lay-people upon their Oath, In Causis matrimonialibus et testamentariis,23 here Boniface makes this Cannon to extend to Peccata et excessus,24 which Cannon was utterly against the Law and Custome of England. In like manner another was made by him at the same time, Linwood, cap. De benef. fol. 231. which Cannon being made directly against the Judges, who did award processe against them, if they did impose any pecuniary pain: And prohibites them the Judges with fear of excommunication, the Cannon being against Law, [the Judges]25 prohibitesthem notwithstanding this thundering of Excommunication in all ages. And the scope and purpose of the said Cannon was to perplex the Subjects, and to enrich themselves by punishment pecuniary; And this is declared by Act of Parliament made 9 Ed. 2. called Articuli Cleri. Si praelati imponant Paenam pecuniariam alicui pro peccato, &c. Regia prohibitio locum habet.26 [Note this.]27
(1607) Trinity Term, 5* James I.
First Published in the Reports, volume 12, page 29.
Ed.: In this note, Coke describes limits on the king’s power to pardon, which may not be used to abrogate guilt but only punishment, which may not be granted in advance of an offense, and which may only be granted for crimes that are malum prohibitum, which is to say are wrong as a matter of Law, and not crimes that are malum in se, or wrong by their very nature.
Bonum publicum.Nota, the Law so regards the Weal-publick, that although that the King shall have the suit solely in his name for the redress of it, yet by his pardon he cannot discharge the Offender, for this, that it is not only in prejudice of the King, but in damage of the Subjects. As well for according of infinite Suits they cannot have private actions, and for that reason the Suit is given to the King, not only for himself, but also for all his Subjects, | as if a man ought to repair a Bridge, and for default of reparation it falls into decay: In this case the Suit ought to be in the name of the King, and the King is sole party to the Suit, but for the benefit of all his Subjects. And for this, if the King pardon it, yet the Offence remains; and in any Suit in the name of the King, for redress of it, the Offender ought (notwithstanding the pardon) to make and repair the Bridge for the benefit of the Weal-publick: but peradventure the pardon shall discharge the Fine for the time past; And with this agrees, 37 Hen. 6. 4. 6. Plow. Com. in Nicol’s Case, 487. where the words of the Law are; If a Bridge or a High-way is repairable by the Subject, and is in decay, the pardon of the King shall not excuse him which ought to do it, for this, that the other Subjects of the King have interest in it. But note, if the pardon in such case shall discharge the Fine, for inasmuch as the Offence cannot be pardoned, this cannot discharge the Fine, but only for the time before the pardon: but for the time after the pardon, without question the Offender for his default shall be fined and imprisoned; the same Law, and A multo fortiori1 in case of Depopulation; for this is not only an Offence against the King, but against all the Realm; for by this the Realm is enfeebled; idle and dissolute people which are Enemies to the Common-wealth, abound: And for this cause Depopulation and diminution of Subjects is a greater nuisance and offence to the Weal-publick, than the hindrance of the Subjects in their good and easy passage by any Bridge or High-way: And for this, notwithstanding the pardon of the King, he shall be bound to re-edifie the houses of Husbandry which he hath depopulated, but peradventure for the time before the pardon he shall not be fined, but for the time after without doubt he shall be fined and imprisoned, for the Offence it self cannot be pardoned, as in the case of a Bridge or High-way; Quia est malum in se:2 But this continues as to the Fine and Imprisonment at all times after the Pardon; but the penalty inflicted by the Statute that may be discharged, Quia prohibitum.3Vide 3 Ed. 3. tit. Ass. 443. Where an Abbot was bound to repair a Bridge by Prescription, and after the King by his Charter discharged him, which Charter was allowed in a Quo warranto.4 And after the Abbot was indicted at the Suit of the King, for default of reparation of the said Bridge, and he pleaded the said Charter andallowance: And notwithstanding it was adjudged that he should repair the said Bridge, for this, that although the Suit be in the name of the King for the Offence, yet the King cannot discharge it, for this, that it shall be to the prejudice and damage of his subjects: but when the King chargeth his subjects for the making of a bridge, or causey, or wall, &c. there the King may discharge of the pontage, murage, &c. But when one is bound by prescription or tenure, &c. to repair a bridge, &c. there the King cannot discharge of it. And all this appears in the said Book.
And note,5 if one be bound to the King in a Recognizance for to keep the peace against one and other the Liege people of the King, in this case the King, before the Peace broken cannot pardon or release the Recognizance, as it is agreed in 11 Hen. 4. 43. 37 Hen. 6. 4. 1 Hen. 7. 10. And the reason is, although the recognizance be made to the King solely; yet inasmuch as this is made for the benefit and safety of the subjects of the King, in such Case it cannot be discharged.
Customs, Subsidies, and Impositions.
First Published in the Reports, volume 12, page 33.
Ed.: Note of a conference between Coke and Popham, then the Chief Justice of the King’s Bench, in which they resolve that the King is limited in placing tariffs and customs on goods entering the kingdom, unless the proceeds are for the benefit of trade, that imports of goods except wool and leather are free of customs under the Common Law, and that money raised in this manner cannot be given to a subject. Taxes for maintenance of public structures should be apportioned to those who benefit from them. Further, they agreed that the King may prohibit a foreigner from entry but only for the public good.
Customs, Subsidies, and Impositions.Note, upon conference between Popham, chief Justice, and my self, upon a Judgment given lately in the Exchequer, concerning the imposition of Currants: And upon consideration of our Books, and of Statutes to this purpose: It appeared to us that the rule of the Common Law is in the Register, Title Ad quod Dampnum, and F. N. B. 222a. quod patria magis solito non oneretur seu gravetur.1 Also there is another Rule, that the King may charge his people of this Realm without speciall assent of the Commons, to a thing which may be of profit to the common people, but not to their charge; As it is held in the 13 of Hen. 4. 16. Et Statutum de Tallagio non concedendo, Nullum Tallagium, seu Auxilium per nos, seu heredes nostros ponatur seu levetur absque voluntate et assensu Parliamenti. Et Magna Charta, cap. 30. Omnes Mercatores (Nisi publice antea Prohibiti fuerint) habeant Salvum et securum conductum abire de Anglia et venire in Angliam, et morari et ire per Angliam, tam per terram quam per aquam, ad eniendum et vendendum sine omnibus malis Toluetis per antiquas et rectas consuetudines, praeterquam in Tempore Guerrae;2 which Statutehathbeen confirmed more than thirty times by severall Acts of Parliament, vide le Statute 25 Ed. 1. 3 Ed. 1. in turri, 9 Ed. 3. cap. 1, & 2. 14 Ed. 3. 2. 25 Ed. 3. cap. 2. &c. The effect of which is, that every Merchant of this Realm, or other, may freely buy, sell, and passe the Sea with all their Merchandizes, paying the Customs of ancient time used. Queen Mary put an imposition upon Cloathes, which the 1 Eliz. Dyer 165. was moved and not resolved, vide 31 Hen. 8. Dyer fol. 43. & 1 Eliz. 165. Magna Custuma et parva Custuma,3vide 9 Hen. 6. 12 & 35. And note there the saying of Babington. Note the 1 Eliz. Dyer 165. there was Antiqua sive magna Custuma4 at the Common Law, scil. for Wools, wool-Fels, and Leather, and this was equall to strangers as well as Denizens. And in the time of Ed. 1. a Merchant stranger, grants over the said Customs, 3s. 4d. which is called Nova seu parva Custuma.5
Upon all which and divers Records which we had seen, it appeared to us, that the King cannot at his pleasure put any Imposition upon any Merchandize to be imported into this Kingdom, or exported, unlesse it be for advancement of Trade and Traffic, which is the life of every Island, Pro bono publico.6 As if in foreign parts any imposition is put upon the Merchandizes of our Merchants, Non pro bono publico,7 and for to make equality, for the purpose to advance Trade and Traffick, the King may put an Imposition upon their Merchandizes, for this is not against any of the Statutes which were made for advancement of merchandize, or of the Statutes which were made for advancement of Merchandize, or of the Statute of Magna Charta, cap. 30. which is, Si aliqui Mercatores de terra contra nos guerrina inveniantur in terra nostra in principio guerrae attachientur, &c. Quo modo mercatores terrae nostrae tractantur qui nunc inveniantur in terra illa, contra nos guerrina: Et si nostra salvi sunt ibi, illi salvi sunt in terra nostra;8 for the end of all such restraints is Salus populi:9 And so in the case of Currants, which was now lately adjudged in | the Exchequer: also in the case of Customer Smith, which was adjudged in the Exchequer, in the reign of Queen Elizabeth both the Impositions were imposed, upon the said reason to make equality, for this was the truth of both cases (Scil.) The advancement of Trade and Traffick, and for this cause such Impositions were lawfull.
And it was clearly resolved by us, that such Impositions so put, cannot be demised or granted to any Subject, for this, that it is to augment and decrease, or be quite taken away upon just occasion for advancement of Merchandize. And this was one of the reasons in Customer Smiths case, that it could not be enused; also it was assessed after the Demise.
And although that the King may prohibit any person in some cases with some Commodities to passe out of the Realm, yet this cannot be where the end is private, but where the end is publick, Viz. To restrain the person for this, that, Quam plurima nobis et Coronae nostrae prejudicialia in partibusexteris prosequi intendit,10 and to restrain any Merchandizes either in time of Dearth, or in time of War, for Necessitas est lex temporis.11
It appeared unto us also, that at the Common Law no Custom was paid, but only for wools, Wool-fels, and Leather, which is called in Magna Charta, Recta consuetudo;12 and all others are there called Mala tolneta.13 which in the Statute De Tallagio non concedendo is called Male. And at the beginning of the Raign of Kings, it hath for a long time been used, by authority and consent of Parliament, to grant to the King certain subsidies of Tonnage andPoundage, for term of his life, which began in such form, 2 & 3 Hen. 5. in the 31 Hen. 6. c. 8. & 12 Ed. 4. c. 3. for the Defence of the Realm, and maintenance of certain Wars, by act of Parliament, which proves, that the King by his own power cannot impose it, but by consent of Parliament; but such subsidy of Tonnage and Poundage might be granted by the King so long as he lived; for this, that this is limited and given to the King in certain: But an Imposition put for equality, as hath been said, hath not any certain continuance, but is to be augmented, diminished, or taken away, for the benefit of the Commonwealth: And for that cause it cannot be demised, vide 31 Hen. 8. Dyer 43. 1 Mar. D. 92. 1 Eliz. Dyer. 165. 2, & 3 P. & M. D. 128. 12 Eliz. Dyer. 296. 23 Eliz. Dyer. 375. 45 Ed. 3. cap. 4. 27 Ass. pl. 44. Register 192, &c.
Vide M. Ch. cap. 30. they are called Consuetudines, et per vocabulum artis,14 they are called Custuma, vide le Statute 51 Hen. 3. Title Exchequer in Rastall: It appears that there were ancient Customs, and those were for Wools, Wool-fels, and Leather, vide le Statute 9 Ed. 3. cap. 2. That all Charters and Letters Patents against free Trade and Traffick, made, or to be made, are void.
Vide Fortescue in his Comment of the Lawes of England, cap. 36. fol. 43. Neque Lex per se vel per ministros suos Tallagia, subsidia, aut quaevis alia onera imponit Legeis suis aut leges eorum mutat, vel novas condit, sine concessione et assensu totius Regni sui in Parliamento suo expresso, &c.15vide fol. 13. cap. 9.
And note for the benefit of the Subject, the King may make an Imposition or Toll within the Realm, to repair High-waies, Bridges, and to make Walls for defence: But then the summ imposed ought to be proportionable to the benefit: And this appears the 13 Hen. 4. 16. So the Imposition for equality ought to be for the public good, see the Charter 31 Ed. 1. which is called Charta mercatoria, ex Rot. mercator. an. 31 Ed. 1. n. 42. Patents 3 Ed. 1. n. 1 et 9. de sacco lanae dimidium marcae; lasta coriorum, 1 Mark, &c. Fines 3 Ed. 1. n. 24. intus et non in dorso, vide Rot. Parliament. an. 13 Ed. 3.16 No new Enhancement of Customs without | common consent: And in 22 Ed. 3. n. 8. against new Customs and Impositions, and that Merchants may freely passe, &c. And in the Parliament An. 8 Hen. 6. n. 29. Amongst the new Impositions granted by Henry the fifth upon Merchandizes coming to Burdeaux: And Parliament 28 Hen. 6. n. 35. the Duke of Somerset accused for causing the King to grant unto Sir Peirce Bracy an Imposition of Wines.
Parl. 9 R. 2. n. 30. against a Patent made to the Lieutenant of the Tower, by colour of which he took Custom of Wine, Oysters, and other Victuals to be void.
29 Ed. 3. 11 n. Ex Rot. Parliamenti, Subsidy of Wools granted for six years, so as during the same time no other aid or imposition be laid upon the Commons.
Parliament 5 Ed. 3. n. 17, 18, 19. against new Impositions upon Staple Commodities, Parl. 22 Ed. 3. n. 31. against Alnage of Worsteds, 5 Ed. 3. n. 163. against all new Impositions, and 5 Ed. 3. n. 191. 38. Ed. 3. n. 26. Rot. Parl. against unreasonable Impositions.
Parl. 7 Ric. 2. n. 35, 36. 9 Ric. 2. n. 30. No Inquisitions or Taxes without consent of Parliament.
Note 2 Ric. 2 Parl. apud Glocestriam, act 25. Subsidy only for defensive Wars, not for invasive, 1 R. 2. Parl. accord. 1 Ric. 3. against Benevolence, vide Claus. 4 Ed. 3. n. 22. bis.
(1607) Michaelmas Term, 5 James I.
First Published in the Reports, volume 12, page 36.
Ed.: This note considers the history and criminalization of certain sexual acts.
Nota, Bugarone Italice, is a Buggerer, and Buggerare is to buggar, so Buggary cometh of the Italian word.
Corone, Buggery.The Letter of the Statute of the 25 Hen. 8. cap. 6. If any person shall commit the detestable sin of Buggary with Man-kind, or Beast, &c. it is Felony, which act being repealed by the Statute, 1 Mar. is revived and made perpetuall by 5 Eliz. cap. 17. And he shall lose his Clergy.
It appears by the ancient Authorities of Law, that this was Felony; but they vary in the punishment, for Brit. who writ 5 Ed. 1. cap. 17. saith, that“Sorcerers, Sodomers and Heretics,” shall be burned. F. N. B. 269 a. agrees with it: But Flet. lib. 1. cap. 35. Christiani autem Apostasi, fortilegi & hujus modi & comburi (in this he agrees with Britton, Pecorantes et sodomitae terra vivi suffodiantur).2 But in the ancient Book | called the Mirror of Justice vouched in Plowden’s Commentaries in Fogosse’s case, the Crime is more high; for there it is called, Crimen laesae Majestatis,3 a sin horrible, committed against the King: And this is either against the King Celestiall or Terrestrial in three manners: by Heresie, by Buggary, by Sodomy. Note, that Sodomy is with Mankind, and it is Felony by the Statute of 25 Hen. 8.; and therefore the judgment for felony doth now belong to this offence, viz. to be hanged by the neck till he be dead. To make that Offence, Oportet rem penetrare, et semen naturae emittere, et effundere, for the Indictment is Contra ordinationem Creatoris et naturae ordinem rem habuit veneream, dictumque puerum carnaliter cognovit.4 Every of which (rem habuit, et carnaliter cognovit5 ) imply penetration and emission of seed: And so it was held in the case of Stafford, who was attaint in the King’s Bench and executed. Paederastes amator puerorum,6 whereof the Greek word is, Παιδεραςία, Buggary with boys, vide Rot. Parliament. 50 Edw. 3. 58. complained in Parliament that a Lumbard did commit the sin that was not to be named: So in Rape, there ought to be penetration and emission of Seed, vide Stamfford fol. 44. Which Statute makes it Felony; he who procures, &c. or receives the Offender, &c. is accessary.
The words of the Statute of West. 1. cap. 34. If a man ravish a woman, 11 Hen. 4. 18. If one aid another to commit Rape, and if he be present, he is principal in the Buggary, &c, vide Leviticus 18, 22. and cap. 10, 13. 1 Cor. 6. ver. 9, &c.
(1606) Easter Term, 4 James I.
First Published in the Reports, volume 12, page 37.
Ed.: This note discusses Coke’s view of the premunire, the writ by which a Common Law court may bar an ecclesiastical court from hearing a case brought by a plaintiff that was in the jurisdiction not of the church court but of the Law court. If the Case begins appropriately in a church court, but as it develops it appears to be more appropriately a Law Case, the Law courts may issue a writ of prohibition against further proceedings in the church court.
Premunire. Vide 15 H. 7. 9. Premunire was at the Common Law.Note in the Book of Doctor Cosines, intituled an Answer, &c. to the Abstract, and published 1584. And a Pamphlet now lately published by Doctor Ridley, they would obtrude upon the World, That forasmuch as that now by the act of 10 Eliz. cap. 1. all Spiritual and Ecclesiasticall power within this Realm is annexed to the Crown, and the Law by which they determine causes, which belongs to their Cognizance, is the Ecclesiasticall Law of the King: That for that cause no Premunire lies against any Spirituall Judge for any Cause whatsoever. And some other of their Profession have some other reasons to confirm it.
1. That when the Statute of Premunire was made, Viz. in the Raign of the Kings Edward the third and Richard the second then the Pope usurped Ecclesiasticall Jurisdiction, although that De jure1 it belonged to the King. And therefore, forasmuch as the King is as well De facto,2 as De jure, supream head of all, as well Ecclesiasticall as Temporall; now the Cause being changed the Law is changed also.
2. The conclusion of the Writ of Premunire is in Domini Regis contemptum et praejudicium, et dictae Coronae dignitatum suarum laesionem et exhaeredationem manifestam, et contra formam statuti, &c.3 Which proves that the Jurisdictions shall be now severed and united to the Crown; For that which is united to, and derived from the Crown, cannot be said contra Coronam et dignitatem Regis.4
3. The Court of high Commission is the Court of the King, and is by force of an act of Parliament, and Letters Patents of the King: And for this, although it may be said, that the Consistory Courts are Curiae episcoporum,5 yet the Court by force of high Commission is the Court of the King: And for that reason their proceedings shall not be subject to Premunire.
4. This new Court is erected by act of Parliament, and Letters Patents of the King: And for this, where the Statute of Ric. 2. speaks De Curia Romana seu alibi, &c.6 This (alibi) cannot extend to a Court erected by Parliament, Anno 10 Reg. Eliz.
But to these Objections it was answered and resolved by divers Justices | in this very Term, that without question the Statutes 37 Edw. 3. 16 R. 2. &c. De Premunire, are yet in force: And all such proceedings, by colour of Ecclesiasticall Law before any Ecclesiasticall Judges, who were in danger of Premunire, before the said act 1 Eliz. are now in case of Premunire after the said act; be it before the Commissioners by force of a high Commission, or before Bishops or other Ecclesiasticall Judges: For the said acts of Premunire are not repealed by the said act 1 Eliz.
And as to the first and second Objections, it was answered, that true it is, that the Crown of England hath as well Ecclesiasticall as Temporall Jurisdiction, De jure annexed to it, as appears by the Resolution in Cawdries case, from age to age: And although this was De jure, yet when the Pope became so potent and powerfull, he did usurp upon the King’s Ecclesiasticall Jurisdiction within this Realm; but this was but meer usurpation (for the King cannot be put out of the possession of any thing which belongs to his Crown:) And for this reason, all the Kings of this Realm Totis viribus proinde7 for the establishment of their temporall Law, by which they inherit the Crown, and by which they govern their Subjects in Peace, and punish those who are rebellious, or who commit great Offences against them and their Crown: And they were always jealous lest any part or point of their temporall Law should be encroached upon: And for this, if the Ecclesiasticall Law usurp any thing upon the temporall Law, this was severely punished: And the Offender esteemed and adjudged an Enemy to the King by the ancient Statutes; and every one might have killed him before the Statute 5 Eliz. and this is the reason for why; although both Jurisdictions belong to the Crown, yet inasmuch as the Crown itself is directed and descendable by the Common Law, and all Treason against the Crown punished by this Law; for this cause, when the Ecclesiasticall Judge usurps upon the Common Law, it is said Contra Coronam et dignitatem, &c.8 And all the Prohibitions directed to the high Commissioners from year to year, from the time of the making of the said Statute 1 Eliz. doth conclude, Contra Coronam et dignitatem Regiam.9
For, as it was resolved by all the Justices, Pasch. 4 Jac. Regis, est contra Coronam et dignitatem Regiam, when any Ecclesiastical Judge doth usurp upon the temporal Law, because as in all those writs it appeareth, the interest or cause of the Subject is drawn ad aliud examen, that is, when the Subject ought to have his cause ended by the Common Law, whereunto by Birthright he is inheritable, he is drawn in aliud examen10 (viz.) to be decided and determined by the Ecclesiasticall Law: And this is truly said Contra Coronam et dignitatem Regiam.11 And this appears by all the Prohibitions (which are infinite) which have been directed to the high Commissioners and others after the said act 1 Eliz. A fortiori, he who offends in premunire shall be said to offend Contra Coronam et dignitatem regiam: And this in effect answers to all the aforesaid Objections; but yet other particular answers shall be given to every of them.
As to the third, although the Court by force of high Commission is the Court of the King, yet their proceedings are Ecclesiasticall: And for this, if they usurp upon the Temporall Law, this is the same Offence which was before the said act of 10 Eliz. For this was the end of all the ancient acts, that the Temporall Law shall not in any manner be emblemished by any Ecclesiasticall proceedings.
As to the fourth, although it be a new Court, yet the ancient Statutes extend to it within this word Alibi, and divers new Bishopricks were erected in the time of Henry the eighth And yet there was never any question, but that | the ancient Acts of Premunire extended to them.
But to answer to all the Objections aforesaid, founded upon the said Statute of 1 Eliz. out of the words and meaning of the same act; For whereas the act 1 Eliz. repealed the Statute of 1 & 2 P. M. c. 8. there is an expresse Proviso in the said act 1 Eliz. that that shall not extend to repeale any clause, matter, or sentence contained or specified in the 1 & 2 P. M. which in any sort toucheth or concerneth any matter or cause of Premunire; But that all of that, which doth touch or concern any matter of Premunire, shall stand in force and effect: and the clause of 1 & 2 P. M. which concerns matter of Premunire, is such, every person who by any processe out of any Ecclesiasticall Court of the Realm, or out of it, or by pretence of any Spirituall Jurisdiction, or otherwise, contrary to the Lawes of the land, unquiet or molest any man for any thing, parcel of the possession of any Religious house, shall incur the danger of the act of Premunire, An. 16 Ric. 2. which proves that as well the act 1 & 2 P. M. as the act 1 Eliz. which creates the high Commission Court, which refers to the act of 1 & 2 P. M. intends by express words, that the act of 16 Ric. 2 of Premunire shall stand in force: Also the act of 1 Eliz. revives the Act of 25 Hen. 8. cap. 10. which makes a Premunire in a Dean and Chapter, &c. for not electing, nor certifying, or not admitting of any Bishop elected; by which it is directly proved, that the act 1 Eliz. never intended to take away the offence of Premunire, but expressly provided for it, as appears by that which hath been said.
But then we are to note in what Cases a Premunire lies, in what not.
Prima Regula.And for this, that it is so penal, it is necessary that it should be explained and made known.
Regula prima.In all Cases, when the cause originally belongs to the Cognizance of the Ecclesiasticall Court, and suit is prosecuted there, in the same nature as the Cognizance belongs to them (although in truth the cause, all circumstances being disclosed, belongs to the Court of the King, and to be determined by the Common Law) yet no Premunire lies in that case, but a Prohibition. As if Tythes are severed from the nine parts, and are carried away: if the Parson sue for the subtraction of these Tythes in the Spirituall Court, this is not within the case of Premunire; for it may be that the Plaintiff did not know that they were severed from the nine parts, nor that they were carried away; nor may the Ecclesiasticall Judge know any thing of it: Andal though that the Defendant pleads this, yet the Ecclesiasticall Court may proceed to try the truth of it without danger, vide 10 Hen. 4. 2. according with this opinion; so if a Parson sue for Tythes of Wood, surmising that they were Silvae caeduae,12 under the age of twenty years, where in truth they were above the age of twenty years: (In which case by the Statute of 45 Ed. 3. Tythes ought not to be paid) yet a Prohibition lyeth and no Premunire.
Regula secunda.But although the cause originally may appertain to the Cognizance of the Ecclesiasticall Judge, yet if he sue for it in the nature of a Suit, which doth not belong to the Ecclesiasticall Court, but to the Common Law, there a Premunire lyeth; as in the case put before: If the Parson after the severing of Tythes, will in any Ecclesiasticall Court within this Realm, sue for carrying away his Tythes severed from the nine parts, which action by matter apparent to the Ecclesiasticall Court, appertains to the Common Law; In such Case both the Actor and the Judge incur the danger of a Premunire: And so it was adjudged in 17 Hen. 8. as Spilman reports it: One Turbervile sued a Premunire against a Parson, who by citation convened him into the Ecclesiasticall Court within this Realm, | and there Libell’d against him for taking of Tythes which were severed from the nine parts, and the Parson was condemned, and had Judgment that he should be out of the protection of the King, and forfeit all his Lands, Goods, and Chattels, and his body to perpetuall Imprisonment, and damages to the party. So if a Mortuary be delivered to a Parson, and after the party re-take it, if the Parson sue for this as for a Mortuary to him delivered and carried away, he is in case of a Premunire; but after the reprisal, if he sue for it as mortuary not executed, in nature of a suit, which belongs to Court Christian, upon the truth of the case there is cause of Prohibition, and no Premunire lies, vide 10 Hen. 4. 2. So the case which hath been put of suit for tythes of Wood, if the Parson sue for tythes of wood above twentyyearsgrowth, so that it appears by the Libell, that the Cognizance of this case doth not belong to Court Christian (viz.) to the Court of the Archbishop of Canterbury, the Premunire lies as you may see in the Book of Entries, tit. Dismes, fol. 221. But in the tit. Prohibition, fol. 449. Divisione Dismes, pl. 2, 3, 4, 5, & 6. if the Suit be Pro silva caedua, &c. So that as the Suit is framed the Cognizance belongs to Court Christian, although that the truth be otherwise, there a Prohibition lies, and no Premunire. For when the cause originally belongs to the Cognizance of the Ecclesiasticall Court, although they hold plea of any incident to it, which belongs to the Common Law, there Prohibition and not Premunire.
Regula tertia.When the cause originally belongs to the cognizance of the Common Law, and not to the Ecclesiasticall Court, there although they libell for it according to the course of the Ecclesiasticall Law, yet the Premunire lyeth, for this, that this draws the cause which is determinable at the Common Law, Ad aliud examen,13 viz. to be decided by the Civill or Ecclesiasticall Law; and so deprives the Subject of the benefit of the Common Law, which is his birth-right: And with this agrees the Book of Entries, tit. Premunire, fol. 229 b. and 430 a. where it is put for a Rule, Quod Placita, Querelae, et possessiones terrarum et tenementorum transgr. debitorum et aliorum consimilium infra Regnum Angliae illat. ad Dominum Regem ad Regalem Coronam et dignitates suas specialiter, et non ad forum Ecclesiasticum pertinent. Quidem I. R., &c. machinans Dominum Regem et Coronam et dignitates suas exheredare, et cognitionem quae ad Curiam Domini Regis pertinet, ad aliud examen infra Regnum suum Angliae in Curiam Christianitatis coram A. W. official. &c. trahere, &c. quendam articulum ad prosequendum ipsum R. in eadem Curia Christianitatis coram praefato Officiali pro debito 20 l. et ipsum R. in eadem Curia praefato I. A. inde responsum citari, &c.14 So that if the original cause be temporall, although that they proceed by Citation, Libel, &c. in Ecclesiasticall manner, yet this is in danger of Premunire: And the reason of this Offence is expressed in the Writ, for this, that he endeavours to draw Cognitionem (causae,) quae ad Curiam Domini regis pertinet, ad aliud examen,15 which is as much as to say, that the Debt, the Cognizance whereof belongs to the Court of the King, and to be determined by the Common Law, he intends by the Originall Suit to draw it to be determined by the Ecclesiasticall Law.
And note, in the Indictment of Premunire against Cardinall Wolsey, Mich. 21 Hen. 8. it is said, Quod praedictus Cardinalis, &c. intend: finaliter anti-quissimas Angliae leges penitus subvertere et enervare, universumque hoc Regnum Angliae et ejusdem Angliae populum, legibus imperialibus, vulgo dictis legibus Civilibus et eorum legum Canonibus in perpetuum subjugare | et subjicere, &c.16 and this is included within these words, Ad aliud examen trahere,17 viz. to decide that by the Civill and Ecclesiasticall Lawes, which is determinable by the common Law: And upon this was a notable case in Hil. an. 25 Hen. 8. the case of Nich. Bishop of Norwich, against whom, he then being in thecustody of the Marshalsey, the Kings Attorney preferred a Bill of Premunire: And the matter of the Premunire was such. Within Thetford in the County of Norfolk hath been De tempore cujus, &c.18 such Custom, that all Ecclesiasticall Causes arising within that Town should be determined before the Dean of the same Town, who hath within it peculiar Jurisdiction; and that none in the same Town shall be drawn in plea in any other Court Christian for Ecclesiasticall Causes, unless before the same Dean: and if any be against the said Custom drawn in Suit before any other Ecclesiasticall Judge, and this be presented before the Mayor of the same Town, that such party shall forfeit 6s. 8d. And that one such sued in the Consistory of the said Bishop, for a thing arising within the said Town of Thetford, and this was presented before the Mayor, [of Thetford according to the custom,] for which he hath forfeited 6s. 8d. the said Bishop cited the said Mayor to appear before him at his house in Hoxin, in Suffolk, generally Pro salute animae,19 and upon appearance libelled, Pro parole20 upon all the matter, and enjoyned him upon pain of Excommunication to annul the said Presentment [before a day: and upon a Premunire brought for this matter]: And the said Bishop had Counsell learned assigned him; And they objected, that as well the said Presentment as the said Custom were for divers causes void, and therefore it cannot be said, Contra Coronam et dignitatem Regiam,21 nor hath the Bishop drawn the party Ad aliud examen, for it ought not to be examined in any Court.
2. They objected, that the Court of the Bishop was not intended within the act of 16 Ric. 2. 32. but In Curia Romana aut alibi;22 and this alibi ought not to be intended out of the Realm, but it was resolved by Fitz-James chief Justice, et per totam Curiam; That be the Custom and Presentment good or not, this is a temporall thing and determinable by the Common Law, and not examinable in the Spirituall Court; and for this the Bishop in this case hath incurred a Premunire.
3. That Alibi extends as well to the Courts of the Bishops, and other Ecclesiasticall Courts within this Realm, as elsewhere: And so the Court said, that it had been often times adjudged, upon which the said Bishop (the matter of the Indictment being true) confessed the said Indictment: And upon this appearing the secondary Justice gave Judgment against him, that the said Bishop shall be out of the protection of the King, and that his Lands, Goods, and Chattels should be forfeited to the King, and his body to be imprisoned Ad voluntatem Regis, &c.23
Nicholas Fuller’s Case.
(1607) 5 James 1.
In the Court of King’s Bench.
First Published in the Reports, volume 12, page 41.
Ed.: Coke’s notes here describe one of his more famous confrontationswith the church courts, in which he asserted the authority of the law courts to determine the extent of the powers of the church courts. He also specifies that the Law court cannot give a consultation or issue writs when it is not in session, and that a Lawyer in court may be punished for his arguments, in the Law courts if he offends the King or government, and in the church courts if he commits heresy.
Ecclesiasticall Commission.In the great case of Nicholas Fuller of Grayes Inn, these points were resolved upon conference had with all the Justices and Barons of the Exchequer.
1. That no Consultation can be granted out of the Term, for this, that it is an award of the Court, and is finall, and cannot be granted by all the Judges out of the Term, nor by any of them within the Term out of Court: And the name of the Writ, Viz. A Writ of Consultation, imports this, that the Court upon consultation amongst them ought to award it.
| 2. That the construction of the Statute 1 Eliz. cap. 1., and of the Letters Patents of high Commission in Ecclesiastical causes founded upon the said Act, belongs to the Judges of the Common Law: For although that the causes, the cognizance of which belongs to them, are merely Spirituall, and the Law by which they proceed is merely Spirituall, yet their authority and power is given to them by Act of Parliament, and Letters Patents, the construction of which belongs to temporall Judges: And for this, the consultation which was granted is with this restraint, Quatenus non agat de authoritate et validitate literarum patentium pro causis Ecclesiasticis vobis vel aliquibus vestrum direct. aut de expositione et interpretatione statuti de anno primo nuper Reginae, &c.1 In the same manner as if the King hath a Benefice donative by Letters Patents, although that the Function and Office of the Incumbent be Spirituall, yet inasmuch as he comes to it merely by Letters Patents of the King, he shall not be visitable, not deprivable by any Ecclesiasticall authority, but by the Chancellor of the King, or by Commissioners under the great Seal.
3. It was resolved when there is any question concerning what power or jurisdiction belongs to Ecclesiastical Judges, in any particular case, the determination of this belongs to the Judges of the Common Law, in what cases they have cognizance, and in what not; for if the Ecclesiastical Judges shall have the determination of what things they shall have cognizance, and that all that appertains to their Jurisdiction, which they shall allow to themselves, they will make no difficulty, Ampliare jurisdictionem suam:2 And according to this resolution, Bract. lib. 5. tract. de except. cap. 15. fol. 412. Cum judex ecclesiasticus prohibitionem a Rege suscepit, supersedere debet in omni casu, saltem donet constiterit in Curia Regia ad quam pertinet jurisdictionem; quia si Judex ecclesiasticus aestimare debet an sua esset jurisdictio, in omni casu indifferenter procederet non obstante Regia prohibitione,3vide Entries, fol. 445. There was a question, whether the Court Christian should have cognizance of a Lamp. And a Prohibition was granted, Quod non procedant in Curia Christianitatis, quousque in Curia nostra discussum fuerit, utrum cognitio placiti illus ad Curiam nostram vel ad forum ecclesiasticum pertineat.4 And if the determination of a thing which appears to Court Christian, doth appertain to the Judges of the Common Law, and the Judges of the Common Law have power to grant a Prohibition. And all this appears in our Books, that the Judges of the Common Law shall determine in what cases the Ecclesiastical Judges have power to punish any Pro laesione fidei,5 2 Hen. 4. fol. 10. 11 Hen. 4. 88. 22 Edw. 4. 20. So of the bounds of Parishes in 5 Hen. 5. 10. 39 Edw. 3. 23. So it belongs to the Judges of the Common Law, to decide who ought to certifie excommunication, and to reject the certificate, when the Ordinary or Commissary is party, 5 Edw. 3. 8. 8 Edw. 3. 69, 70. 18 Edw. 3. 58. 12 Edw. 4. 9 Hen. 7. 1. 10 Hen. 7. 9. For this it was resolved clearly, that if any person slander the authority or power of the high Commissioners, this is to be punished before the Judges of the Common Law, for that the determination of their authority and power which is given to them by the Statute, and the Letters Patents of the King belongs to them, and not to Court Christian: And for this, that the many articles objected against Fuller concerning the slander of their authority and power, was solely determinable and punishable before the Judges of the Common Law. One other restraint was added in the consultation: Et quatenus non agat de aliquibus scandalis, contemptibus, seu aliis rebus, quae ad communem legem aut statuta regni nostri Angliae sunt punienda et determinanda.6
4. It was resolved, that if a Counsellor at Law, in his argument, shall| scandall the King or his Government, Temporall or Ecclesiasticall, this is a Misdemeanor and contempt to the Court; for this he is to be indicted, fined, and imprisoned, and not in Court Christian: But if he publish any Heresy, Schism, or erroneous Opinion in Religion, he may be for this convened before the Ecclesiastical Judges, and there corrected according to the Ecclesiastical Law: for the Rule is, Quod non est juri consonum quod quis pro aliis quae in Curiis nostris acta sunt, quorum cognitio ad nos pertinet, trahatur in placitum in Curia Christianitatis7 as it appears in the Book of Entries, fol. 448. So that the intent is, that Heresie, Schism, or such enormous opinions in Religion, doth not appertain to the Cognizance of temporall Courts: For this causea Consultation was granted, Quoad schismata, hereses, et inormiam impiam, vel pernitiosam opinionem in religione, fide, seu doctrina Christiana pie et salubriter stabilita infra regnum nostrum Angliae, quorum cognitio ad forum ecclesiasticum spectat, &c.8Vide Mich. 18 Hen. 8. Rot. 78. in Banco Regis. The case was, that a Leet was held Jovis post festum Sancti Mich. Arch.9 17 Hen. 8. of the Prior of the house of S. John de Bethlehem de Sheine, of his Mannor of Levisham in the County of Surrey, before John Beare the Steward there, a grand Jury was charged to inquire for the King of all Offences inquirable within the said Leet, where one Philip Aldwin, who was Resident within the said Leet, appeared at the said Leet, Idemque Philippus sciens quandam Margaretam, uxorem Johannis Aldwin apud East Greenwich, infra jurisdictionem Letae praedictae, pluries perantea corpus suum in adulterio vitiose exercuisse, ac volens ipsam Margaretam pro republica in exemplum taliter offendere volentium legitime punire, ad dictam magnam juratam se personaliter exhibuit & eisdem sic juratis de dicta mala & viciosa vita praefate Margaretae instructionem et informationemveraciter dedit.10 Upon which the said Margaret did draw the said Philip into the Court of the Arch-bishop of Canterbury, and there did libell against him for defamation of Adultery; And that the said Philip said in hisce anglicanis verbis;11 Margaret Allen is a Whore and a Bawd, and it is not yet three weeks agone since a man might take a Priest betwixt her legs; which english words were parcell of the words by which he informed the Grand Inquest at the said Leet: And upon this he had by award of the Court a Prohibition, by which Writ it appears, Quod per leges hujus Regni Angliae omnes & singuli quicunque Domini Regis subditi coram quibuscunque ipsius Domini Regis Justiciariis seu quocunque alio viro judiciali officio seculari fungente in aliqua juratam patriae jurati, vel ad aliquas instructiones seu informationes alicui hujusmodi jurat in evidentias dandas comparentes et evidentias dantes, ab omni impetitione et calumnia in aliqua Curia Christianitatis propterea fienda, quieti et liberi esse debent, et in perpetuum penitus irreprehen.12 And by this record it appears, & by the Statute of 10 Edw. 3. c. 11. by which it is provided, that Indictors of Lay people or Clerks in Turneys, and after delivering them before Justices shall not be sued for defamation in Court Christian, but that the Plaintiff who finds himself grieved shall have a Prohibition formed in the Chancery upon his case, which was but an affirmance of the common Law, for that the Statute provides only for Indictors in the Turne only: And yet as well all Indictors in other Courts, and all Witnesses, and all others who have affairs in the Temporall Courts, shall not be sued or molested in Court Christian. vide Pasch. 6 Eliz. In the Reports of the Lord Dyer, (which Case is not printed) John Halles in the Case of marriage, between the Earl of Hereford, and the Lady Katherine Gray, declared his opinion against the sentence given by Commissioners Delegates of the Queen, in a cause ecclesiasticall, under the great Seal: | And that the said Sentence in dis-affirmance of the said marriage was unjust, wicked, and void, and that he thought that the said Judges Delegates had done against their conscience, and could not render any reason for the said sentence: And what offence this was, was referred to divers Judges to consider, by whom upon great deliberation it was resolved, that this offence was a contempt as well against the Queen, as to the Judges; and every of them were punishable by the Common Law, by fine and imprisonment: And that the Queen may upon that sue for it in what Court she shall pleas: for the slander of a Judge in point of his Judgment, be it true or false, is not justifiable, &c. And all this appears by the Report of the Lord Dyer, so that in the said Consultation it was well provided, that the high Commissioners should not intermeddle with any scandall by the Common Law.
5. It was resolved, that when any Libell in Ecclesiasticall Court contains many Articles, if any of them do not belong to the cognizance of Court Christian, a Prohibition may be generally granted; and upon motion made, consultation may be made as to things which do belong to the Spirituall Jurisdiction; for the Writ of consultation with a Quoad,13 is frequent and usuall, but a Prohibition with a Quoad, is Rara avis in terra nigroque simillima Cygno.14 And for these reasons it was resolved by all that the Prohibition in the case at the Bar was well granted, which in truth was granted by Fenner and Crook Justices in the time of the Vacation.
Note, these generall Rules concerning Prohibitions quaesparsiminveniantur in libris nostris.
Non debet dici tendere in praejudicium ecclesiasticae libertatis quod pro Rege & Repub. necessarium videtur.15
Non est juri consonum quod quis super iis quorum cognitío ad nos pertinet in Curia Christianitatis trahetur in placitum.16
Episcopus teneat placitum in Curia Christianitatis de iis quae mere sunt spiritualia.17
Prohibeatur de caetero Hospitalariis & Templariis ne de caetero trahant aliquem in placitum coram Conservatoribus privilegiorum de aliqua re cujus cognitio ad forum spectat Regium.18
The knowledge of all cases Testamentary, Matrimony, &c. by the goodnesse of the Princes, and by the Lawes and Customs of the Realm appertain to spiritual Jurisdiction.
6. It was resolved, that this especial consultation, being onely for Heresie, Schism, and erroneous Opinions, &c. that if they convict Fuller of heresie, Schism, or erroneous Opinion, &c. that if he recant the said Heresie, Schism, or erroneous Opinion, that he shall never be punished by Ecclesiastical Law: And after the said consultation granted, the said Commissioners proceeded and convicted Fuller of Schism and erroneous Opinions, and imprisoned him and fined him two hundred pounds: And after in the same Term, Fuller by his Councell moved the Court of Kings Bench to have a Habeas Corpus et ei conceditur,21 upon which Writ the Goaler did return the cause of his detention.
Sir Anthony Roper’s Case.
(1607) Michaelmas Term, 5 James I.
In the Court of King’s Bench.
First Published in the Reports, volume 12, page 45.
Ed.: One of the many grants of habeas corpus against the High Commission. Sir Anthony Roper was imprisoned by the church court for failing to release funds for a pension owed from some of his lands to a local vicar. The Justices of the Court of Common Pleas held that this offense was not a heresy or other offense under the Statute giving jurisdiction to the High Commission.
In the case of Sir Anthony Roper, who was drawn before the high Commissioners at the Suit of one Bulbrook the Vicar of Bentley, for a Pension out of a Rectory Impropriate, of which Sir Anthony was seised in fee: And the high Commissioners sentenced the said Sir Anthony to pay that, which he refused; And upon this they committed him to Prison, who in this Term by Habeas corpus1 appeared in Court, upon the return of which Writ the matter did appear: And it was well debated by the Justices, and was resolved, that the said Commissioners had not authority or | commission in the said case, for when the Acts of the 27 Hen. 8. and 31 Hen. 8. of Monasteries had made Parsonages Impropriate, and other Religious Possessions Lay-fee, although that Pensions were saved, yet as it appears by the Preamble of the act of 34 Hen. 8. cap. 16. those to whom the Pensions appertain, had not remedy for the said Pensions, &c. And for this there it is provided, that if the Farmer or Occupier of such Possessions shall wilfully deny the payment of any such Pensions, Portions, Corrodies, Indemnities, Synod Proxies, or any other Profits, whereof any Arch-bishop, Bishop, Arch-deacon, or any other Ecclesiastical person were in possession at, or within ten years next before the time of such dissolution of any such Monastery, &c. that then it shall be lawfull for the said Arch-bishop, Bishop, or other Ecclesiastical person aforesaid, being so denied to be satisfied and paid therof: And having right to the thing indemand, to have such processe, as well against every such person and persons, as so shall deny payment, &c. as against the Church and Churches charged with the same, as heretofore they have lawfully done, and as by, and according to the Lawes of this Realm they may now lawfully do, &c. And if the King hath covenanted to discharge the Patentee, &c. of Pensions, and then suit shall be made for the same in the Court of Augmentations, and not elsewhere; then if the high Commissioners will determine of Pensions, they ought to do it by the act 34 Hen. 8. and the said act gives this expressly to Ordinaries, and their Officials, and the high Commissioners have their authority by the act 1 Eliz. made a long time after.
But it was objected, that the said act 1 Eliz. gave to the Queen, her Heirs and Successors, power to assign Commissioners to exercise and execute all manner of Jurisdiction Spiritual, to visit, reform, &c. all Schism and Heresie, &c. and Enormities which by any manner of Spiritual Jurisdiction can, or lawfully may be reformed. And it was said, that such Spiritual Jurisdiction which the Bishop should have, is transferred to the high Commissioners.
But it was unanimously resolved by Coke, Walmsley, Warburton, Daniel and Foster Justices, that the act 1 Eliz. doth not extend to this case for divers causes, viz.
1. For that the said clause of resignation is not more large then the clause of Restitution; and that the act of 1 Eliz. doth not take away nor alter any act of Parliament, unlesse those only which are expressly named in the act; and it was resolved that the high Commissioners cannot hold plea for the double value of Tythes carried away before severance, for two causes.
1. For this, that the Statute of 2 Edw. 6. cap. 13. gave the Cognizance of it to Spirituall Judges, which is to be intended of such Spirituall Judges who then were.
2. Substraction of Tythes is injury and no crime, but concerns interest and property: And for this the high Commissioners cannot meddle with it.
2. For that the words of the act 1 Eliz. are (which by any manner of Spirituall Jurisdiction can or lawfully may be reformed). And it appears that these words extend to crime only, and not to cases of Interest betwixt party and party; for the words are: All such Errors, Heresies, &c. which by any manner, &c. so that (such) and (which) are Relatives.
2. This Jurisdiction was given to the Bishops by act of Parliament, viz. by 34 Hen. 8. which is more temporal then spiritual: And for this out of the precedent words 1 Eliz. viz. Spiritual or Ecclesiasticall Jurisdiction, which is to be intended of Jurisdictions meerly or purely Spiritual, | but acts of Parliament are more temporall then spirituall.
4. It was not the intent of the act 1 Eliz. which revived the Statute 23 Hen. 8. cap. 9. by which act it is enacted, that none shall be sued out of his Diocesse, &c. that the high Commissioners for private causes shall send for Subjects out of any part of the Realm, and so in effect confound the Jurisdiction of the Ordinary, who is an Officer and Minister so necessary that in divers causes the Courts of the King cannot administer to Subjects without him, &c.
5. If the act of 1 Eliz. had extended to give to high Commissioners power to determine meum et tuum,2 as Pensions, Tythes, Legacies, Matrimonies, Divorces, Administrations, Probates of Testaments, &c. the act would also give the party grieved benefit of appeal, and not give absolute authority to the high Commissioners finally to determine Meum et tuum, and to bastardise Issues, &c. without any controlement, for this should be to dissolve the Court of the Ordinary which is so ancient and inevitably necessary in many cases to the administration of Justice, in divers points of it, that without this Justice cannot be executed.
6. The high Commissioners cannot extend themselves but only to Crimes, for the clause which gives to them power to imprison, &c. and to punish, &c. and imprison such Offender, &c. And Offender is only to be intended of him who commits any crime, and not of him who detains Pension, Legacy, Tythes, &c.
Sir Anthony Roper’s Case.
(1607) Michaelmas Term, 5 James I.
In the Court of King’s Bench.
First Published in the Reports, volume 12, page 47.*
Ed.: A different note by Coke of the preceding Case.
Hab. Corpus return, and discharge by judgment of the Court.Praeceptum fuit Guardiano prisonae Domini Regis de le Fleete, Quod haberet hic; viz. apud Westmonasterium immediate post receptionem hujus brevis corpus Antonii Roper militis in prisona praedicta sub custodia sua detenti, quocunque nomine censeretur, una cum die et causa captionis et detentionis ejusdem Antonii: Et iidem Justiciarii hic, visa causa illa, ulterius fieri fecerint quod de jure et secundum legem et consuetudinem regni Domini Regis Angliae fuerit faciendum: Et modo hic ad hunc diem, scilicet diem Sabbati proximum post octabis Sancti Mich. isto eodem termino venit praedictus Antonius in propria persona sua sub Custodia praedicti Guardiani ad barram, hic praedict. et idem Guardianus, tunc hic mand. Quod ante adventum brevis praedicti, viz. nono die octabis ultimo praeterito praeditus Anthonius Roper miles reducitse prisonaepraedictaepraeantea commissus virtute cujusdam warranti, dati 30 die Junii ultimo praeterit’, quod sequitur in haec verba, viz.1
These are in his Majesties name to require and charge you, by vertue of his high Commission for causes Ecclesiasticall, under the great Seal of England, to us and others directed, that herewith you receive and take into your Custody the body of Sir Anthony Roper Knight, and him safely detain Prisoner at this our commandment, untill we shall give order for his enlargement, signifying unto you, that the cause of his commitment is, for that there being a certain cause referred unto us by his Majesties special direction, betwixt him the said Sir Anthony Roper and John Bulbrook Vicar of Bentley, for that he detained wrongfully from him the said Vicar, a certain yearly Pension due unto him from the said Sir Anthony; And being thereupon called before us, and after full hearing of | the cause in the presence of Sir Anthony and his Councel at three or four severall times, and at the last adjudged by us to pay the said Pension, he having somtime of deliberation given unto him by us to consider therof, hath notwithstanding obstinately disobeyed the said Order, and doth so still persist: And this shall be your Warrant in that behalf; Given at Lambeth this thirtieth of June, 1607. Et quod haec fuit Causa Captionis et detentionis, praedicti Antonii in prisona praedicta, corpus tamen praedicti Antonii modo hic paratus habet prout per breve praedictum sibi praeceptum fuit, &c. super quo, visis praemissis et per Justiciarios hic pleniusexaminatisetintellectis, videturiisdem Justic. hic quod praedicta causa commissionis praedicti Antonii prisonae de Fleet praedict, in retorno praedict: superius specificata minus sufficiens in lege existit ad detinendum praedictum Antonium in prisona praedict. Ideo praedictus Antonius a prisona praedicta per Curiam hic dimittitur, ac idem guardianus de hujusmodi custodia per eandem Curiam hic plene exoneretur, &c.2 And this was resolved una voce by Coke chief Justice, Walmesley, Warberton, Daniell, and Foster Justices, for the causes and reasons afore expressed.
And in the very same Term in Lanes Case, a Parson in Norfolk who sued one of his Parishioners before the high Commissioners, for scandaling of him, saying in the Church on the Sabbath before all his Parishioners, That he was a wicked man, and an arrant Knave: Prohibition lyes, for this, that it was not so enormous as the Statute intended. Note, that by express Proviso, the high Commissioners cannot intermeddle with all Heresies, but with exorbitant Heresies, &c. and the other shall be determined before the Ordinary.
The Case of Heresy.
(1600–1601) 43 Elizabeth I In Conference with Sir John Popham, Chief Justice.
First Published in the Reports, volume 12, page 56.*
Ed.: These are Coke’s notes of a conference with the Chief Justice of the king’s Bench, on the nature of a proceeding for heresy, including the evolution of their procedure, and the problems of indictments brought against Lollards, who were not heretics in the definition by Statute.
Heresie upon conference with Sir John Popham and others, An. 43. Eliz.Note, 2 Mar. title Heresie, Brook per omnes Justiciarios1 & Baker & Hare: The Arch-bishop in his Province, in the Convocation, may and doth use to convict Heresie by the common Law, and then to put them convicted into Ley hands, and then by the Writ, De haeretico comburendo2 they were burnt: But for this, that it was troublesome to call a Convocation of the whole Province, it was ordained by the Statute of 2 Hen. 4. cap. 15. That every Bishop in his Diocesse might convict Hereticks; And if the Sheriff was present, he might deliver the party convict to be burnt, without any Writ De haeretico comburendo: But if the Sheriff be absent, or if he be to be burnt in another County, then there ought to be a Writ De haeretico comburendo; And that the Common Law was such, vide lib. intra. title Indictment, pl. 11. who there are taken for Hereticks, some of them are consonant to true Religion, vide 11 Hen. 7. Book of Entries, fol. 319. see Dr. & St lib. 2. cap. 29. Cosin. 48. 2. see the Statute of 1 & 2. P.M. cap. 6. That Ordinaries wanting authority to proceed against Hereticks, 3. F. N. B. fol. 269. And the Writ in the Register, which in the new Writ is omitted proves this directly, 4. Bracton, lib. 3. cap. 9. fol. 123, 124. Concilio Oxoniensi quidam Diaconus convictus fuit de Apostasia, sed primo degradatus fuit per Ordinarium:3 And true it is, that every Ordinary may convent any Heretick or Schismatick before him, Pro salute animae,4 and may degrade him, as Bracton saith, and may injoyn him penance according to the censure of Ecclesiasticall Law: But upon such conviction at Common Law, the party convict shall not be burnt, nor any Writ De haeretico comburendo lyeth upon it; for the Common Law will not commit the Disseison of a Heresie, for the life of a Christian man, to any sole Judge.
Nota, The makers of the act of 1 Eliz. were in doubt what shall be deemed Heresie, Schism, or Schismaticall Opinion: And for this on purpuse the Statute 10 Eliz. provides that nothing shall be deemed Heresie by any of the Commissioners, by vertue of the high Commission, but what had been determined for Heresie by one of the four generall Councils, or expresly by the word of God, or Parliament, and will not leave it to so many of the Bishops and high Divines who are Commissioners, to determine what was Heresie: without question it cannot be thought reasonable that this shall be left without any limitation to one only Bishop, but to a generall Convocation; for Plus vident oculi quam oculus,5 see Fox in Ed. 6. Tyne the Ordinary convicted none but by commission, and it appears by Bracton, vide supra, & Britton, who writ in 5 Edw. 1. lib. 1. cap. 17. That an Heretick shall be burnt for Heresie, but he doth not speak of the manner of conviction: See Horne in Myrrour of Justice; And true it is, that is appears by the preamble of the Statute, 2 Hen. 4. that the Ordinary hath Cognizance of Heresie: And this is true, as it hath been said, Pro salute animae; but not to burn the Heretick before that Statute: And with this agrees the Statute, 2 Hen. 5. cap. 7. 23 Hen. 7. 9. 25 Hen. 8. cap. 14. which recites the mischief, and the said act 2 Hen. 4. introduceth, scil. That a man incurs the losse of his life, good fame, or goods, upon naked suspition without due examination and testimony, or presentment, viz. Confession, &c. Also that the words in the said Act, viz. Cannonical Functions, were to generall and incertain; Also that it was not defined by the said act what was Heresie, the said Act repeals the act, 2 Hen. 4. & 2 Hen. 5. and the same act 25 Hen. 8. gives power to the Ordinary to proceed in other form and manner then the Statute 2 Hen. 4. hath provided, viz. That the Ordinary shall only proceed upon presentment or indictment of Heresies, or upon an accusation of two lawfull witnesses, and not otherwise. Also the Ordinary cannot burn the Heretick without the Kings Writ De haeretico comburendo, so that the proceeding in that Commencement and end was altered by the Statute 25 Hen. 8. and where this Statute sayes, Ordinaries having power to examine Heresies, this restrains it to Ordinaries themselves and not to Suffragans, Commissaries, &c. Then came the Statute of 1 Edw. 6. cap. 12. and that repealed, 5 Ric. 2. 2 Hen. 5. & 25 Hen. 8. but not the 2 Hen. 4. by expresse words, but by generall words, viz. All Statutes concerning matter of Religion: then came the Statute 1, & 2. P & M. cap. 6. and revived the Statute 2 Hen. 4. amongst others, by the reviver of which, without more, the Statute of 25 Hen. 8. loseth its force, so that the Ordinary may proceed upon bare suspition, and burn in any case without the Kings Writ: But by the act 1, & 2. P. & M cap. 8. after divers acts expresly repealed, Scil. 21 Hen. 8. 23 Hen. 8. 24 Hen 8. 27. Hen. 8. but the act of the 25 Hen. 8. cap. 14. was not expresly repealed, for this was repealed before by the act 1 Edw. 6. and yet in the end of that long and prolix Act, there is a generall clause which is sufficient of it self to repeal the Act of 25 Hen. 8. cap. 14. without more, Scil. the Ecclesiasticall Jurisdiction of the Arch-bishop and Ordinary to be in the same Estate, for processe of Suits, punishment of crimes, and execution of Church censures, with knowledge of Causes belonging to the same; and as large in these points as the said Jurisdiction was the twentieth year of the Raign of Hen. 8. by which Clause without question the Act of the 25. of Hen. 8. cap. 14. was repealed; then came the Statute of 1 Eliz. cap. 1. and by this the said Act of the 1, & 2. Phil. & Mar. is repealed, except such branches as after in the Act is excepted: And after divers acts particularly are repealed by the Act 1, & 2. Phil. & Mar. and are revived by 1 Eliz: particularly: And after in the same act of 1 Eliz. it is enacted, that all other Statutes repealed by the said act of Repeal of 1, & 2. Phil. & Mar. and not in this act specially revived shall remain repealed: But the act 25 Hen. 8. cap. 14. was not particularly revived, and therefore is repealed; And after it is enacted by the Statute of 1 Eliz. that the said act 1, & 2. Phil. & Mar. of reviving of three Acts for punishment of Heresies, and the said three Acts themselves shall be repealed, so that now at the Common Law none can be burnt for Heresie, but by conviction at a Convocation, for the Statute of 2 Hen. 4. cap. 15. and 25 Hen. 8. 14. are now repealed, and no regard was had to the said Doctor Cosins, in his Apology pag. 48. That he heard the two chief Justices, &c. for he doth not touch any time, or persons, &c. And it may very well be that they said, That cognizance of Heresie belongs to Ordinaries Quatenus6 to penance, but not Quatenus to losse of life.
Note also, that by the said Writ in the Register, it appears that Hereticks convict ought first to abjure, so that it may be said Omnes infra ovile,7 and after relapsed into the same Heresie, there he shall suffer death: And with this accords Fitzh. but quaere de hoc.8
Note, divers were convicted in the time of Queen Eliz. upon the Statute of 2. Hen. 4. for the order and form of 25 Hen. 8. was not observed, both which acts are repealed; So William Newburgess. lib 2. cap. 13. de haeretico comburendo in France.
Note, the High Commission may punish Heresies, and upon their conviction a Writ De haeretico comburendo. See the Act 6. Ric. 2. by which the Commons disavowed their assent to the act of 5 Ric. 2. That Hereticks shall be imprisoned, &c. upon the Certificate of the Bishops, &c. and there the Commons declared, that it was not their intent to be justified, nor bound themselves, nor their Successors to Prelates, more then their Ancestors had done in time past.
Note well, the act 5 Ric. 2. was contrived by the Prelates in the name of the Commons, wheras they never assented: And this private act of 6 Ric. 2. not Printed, nor was it after divers Parliaments, as it may appear before.
(1608) Michaelmas Term, 6 James I.
In the Court of Common Pleas. First Published in the Reports, volume 12, page 58.
Ed.: This is one of several notes in this part of the Reports discussing the travails of Marmaduke Langdale, whose ex-wife, Joan, sued him before the High Commission for failing to pay alimony. He sought a prohibition from Common Pleas even though he had no suit then pending before it. The court awarded the prohibition anyway. These notes detail the forms and rationale for prohibitions to the ecclesiastical court.
Prohibition.In the case of Langdale in this very Term, in a Prohibition to the high Commissioners, two points were moved; The one, if a Feme-covert1 may sue for Alimony before the high Commissioners. The other, if the Court of Common Pleas may grant a Prohibition, when no Plea is pendent in the Common Pleas: As in this case no Plea can there depend betwixt Husband and Wife. And forasmuch as this concerns the Jurisdiction of the Court, this was first of all debated, divers objections were made against it.
1. That this Court hath not Jurisdiction to hold Plea without an Original, unlesse it be by priviledge of an Attorney, Officer, or Clerk of the Court, unlesse that it be in an especiall case, viz. when there is an action | there depending for the same cause; then it was agreed that a Prohibition shall be awarded out of the Common Pleas, in respect that the Court hath an action there depending for the same cause, and so being possessed of the cause, it gave the Court Jurisdiction to award Prohibition out of the same Court: And for that the Prohibition ought to recite, Quod cum tale placitum pendet, &c.2 and the Defendant Pendente placito praedicto,3 hath pursued in Court Christian: And with this accords, as hath been said, F. N. B. 43 g. where it is said, that if a man be sued in the Common Pleas for a Trespasse, if the Plaintiff also sue in Court Christian for the same cause, the Defendant may shew this in the Common Pleas, and shall have a Prohibition then directed to the Judges: And so alwaies when the matter is pendent in the Common Pleas, if suit be for the same cause in Court Christian, he shall have a Prohibition: But a man shall have a Prohibition out of the Chancery, or Kings Bench upon his surmise, surmising that he is sued in Court Christian for a temporall cause; And 2 Edw. 4. 11. 6. was cited, where it is held that Ne admittas,4 which is a Prohibition, doth not lye unlesse that the Quare impedit5 be pendent.
And it was answered and resolved by Coke chief Justice, Warburton, Daniel, and Foster, Justices, that the Common Pleas may award a Prohibition, although that no Suit be there pendent, for this, that the Common Pleas is the principall Court of Common Law for Common Pleas: For it belongs to the Jurisdiction of the Common Pleas to determine all Common Pleas.
Quia communia placita non sequantur Curiam nostram,6 as it is enacted by Magna Charta, which hath thirty times been confirmed by other acts of Parliament: Then if the Ecclesiasticall Judges incroach upon the Jurisdiction of the Common Pleas to hold Plea of any thing against the Common Law of the Land, or of any thing triable by the Law, there the Principle Court of Common Law shall grant a Prohibition, and that without Originall Writ, for divers causes.
1. For that no Originall Writ which issues out of Chancery is retornable or into the Kings Bench or Common Pleas, but is directed to Judge, or party, or both, and is not retornable: But it appears in the Register, that if the Prohibition be contemned, then the Chancellor may award an Attachment to punish this contempt, retornable or in the Common Pleas, or in the Kings Bench: But an Attachment in such case is but as a Judiciall Writ; And this appears by the Register, fol. 33. Andif the Attachmentinsuchcaseberetornable into the Common Pleas, &c. the Plaintiff in the Declaration shall make mention of an Originall Writ in the Chancery, and of the contempt, &c. as appears in a notable President.
2. There was great reason that no Originall Writ of Prohibition shall be returnable, for the Common Law was a Prohibition in it self, and he who did incroach upon the Jurisdiction of it incurred a contempt: And with this agrees our Books, as 9 Hen. 6. 56. in Attachment upon a Prohibition in the Common Pleas, William Babington then chief Justice of the Bench, concerning a Suit in Court Christian of tythes of grosse Trees: And there Fulthorp the Serjeant took exception to the Count, for this, that the Plaintiff in his Count did not declare upon any Statute nor that any Prohibition, Scil. Original Writ was directed unto him: And there it is held that the Statute of 45 Edw. 3. and the Common Law also was a Prohibition in it self: And thus the rule of the Book, 19 Hen. 6. 54. Prohibition, for this, that one had sued in a Court Baron against the Common Law; And there Ascue said, the Statute is a Prohibition in it self, so it is held | in 8 Ric. 2. title Attachment sur Prohibition, 15. Note, by Clopton in the Common Pleas, who then was a Serjeant, that if a Plea be held in Court Christian, which belongs to the Court of the King, without any Prohibition in facto, the Plaintiff shall have an Attachment upon a Prohibition, for this, that the Law is a Prohibition in it self, for by the Law they ought to hold no Plea, but that which doth belong to their Jurisdiction, Quod fuit concessum, &c.7 Register 77. Estrepment. Praecipimus quod inhibeas, &c.8 F. N. B. 259. Regist. 112. Supersedeas9 to a Court Baron, for holding plea Vi et armis, or above forty shillings: And F. N. B. a Writ of Consultation is as much an originall as a Prohibition, yet the Common Pleashathgrantedinfinite Consultations, ergo10 Prohibitions, Qui habet jurisdictionem absolvendi, habet jurisdictionem ligandi:11 And one Writ is as Originall as the other.
Note, there are many severall Writs of expresse Prohibitions, Scil. Prohibitions with this word Prohibemus vobis,12 and Letters in nature of Prohibitions, as Supersedeas, by which it is commanded, Quod supersed in placito praedicto:13 And Injunction is a Prohibition, and also in its nature, for the words are an Injunction to the party, not to the Judge; And a Supersedeas is to an Officer or Judge, not to the party.
Prohibition of wast returnable out of Chancery, Quia retornabile.14 Express prohibitions are in two manners, the one founded upon a Suggestion, the other upon Record; upon suggestion where plea is pendent, and yet the suggestion is the foundation, for it is not so without a plea pendent, but is founded upon Record when no plea is pendent, as shall be said hereafter: For Prohibitions founded upon Record, Ne admittas, &c. ought to re-cite the plea pendent, for all those which are founded upon Record ought to recite a plea pendent. So a Writ to the Bishop to admit a Clark, is a Judiciall Latitat,15 as Dyer defends it: And as to the Book of 2 Edw. 4. it is well agreed, that this doth not lye in the Common Pleas, unlesse a Quare impedit be depending, for this ought to recite a Writ to be depending, and it should be against reason to restrain any to present, or to make Wast by Estrepment,16 unlesse that a Writ be pendent: And as to the opinion of Fitzherbert, it was affirmed for good Law, for every one agrees it, that if a plea be pendent in the Common Pleas, then a Prohibition there lies, and the pendency or not pendency of a plea is not materiall for divers causes.
1. The pendency of a Plea may give a priviledge to the party, but no Jurisdiction to the Court in collaterall Suit: And there is a diversity betwixt Priviledge of Court, and Jurisdiction of Court, for a Plea pendent may give priviledge to the party, Eundo, redeundo & morando,17 but doth not give Jurisdiction to the Court to hold plea by Bill by collaterall Suit against any other, as an Officer, Attorney or Clerk may.
2. The Prohibition in such a case where plea is pendent is no processe Judiciall upon the Record, for it is a collaterall Suit.
3. If the Common Pleas, which is the proper Court for Common Pleas, cannot grant a Prohibition without a Plea pendent; certainly the Kings Bench, which holds plea of Common Pleas by secondary means, cannot do it: And so the Archbishop of Canterbury in his Articles concerning Prohibitionsholds, that neither the one Court nor the other may grant Prohibitions in such a case: But inasmuch as the Common Law is in stead of an Originall, as hath been said, both Courts may grant it.
4. Infinite Presidents may be shewn of Prohibitions out of the Common Pleas, without recitall of any plea pendent, as is agreed on the other part: And true it is, that it ought to be, if the Court hath not Jurisdiction | to grant any without plea pendent. Every petty Clerk of the Common Law shall have by his priviledge a Prohibition without plea pendent; a fortiori,18 the Common Law it self may prohibite any one, who against the Common Law shall incroach upon its Jurisdiction, and enquire of things done against the Jurisdiction of the Court. Plea pendent is cause of priviledge and not of Jurisdiction, 4 Edw. 4. 37. 37 Hen. 8. 4. Action or information upon the Statute of 2 Hen. 5. cap. 5. is but an information to the Court of wrong done to the Common Law, for this, that no Originall Writ lies, as upon penall Law, upon Malum prohibitum, this is Malum in se de quo Curia intelligi & informari voluit.19
5. A President is in 22 Edw. 4. where a prohibition was granted out of the Common Pleas, for that the Plaintiff might have a Writ of false Judgment at the Common Law: The Record it self agrees with the Report, for the words of the Record are,
6. That Officers and Clerks, as well in the Common Pleas, as in the Exchequer, and Farmers of the King in the Exchequer, may have by priviledge of Court a Prohibition without Originall: a fortiori, the Law it self shall have greater priviledge then an Officer or Clerk, and certainly to enforce the party to bring an action will be a means to multiply Suits to no end, for the Law it self in 4 Edw. 4. fol. 37. if any man upon the Statute of 2 Hen. 5. for not delivering of a Libell, be brought into the Common Pleas: And if he cannot have a Prohibition without such Suit, this shall be a cause, as hath been said, to multiply Suits, and is against the publick Weal; For he will bring his action upon the Statute before that he will be deprived of his Prohibition, and by that he gives himself cause of Prohibition; every Prohibition is as well at the Suit of the King as of the party, as is held in 28 Edw. 3. 97. false Latine shall not abate, nor excommunication in the plaint is no plea: For this is the Suit of the King, as well for his Jurisdiction as for the party, who by Law may choose his Court, 15 Edw. 3. title Corrody 4. The King may sue for this contempt where he pleaseth.
Note, that although the Originall cause was in the Kings Bench for Corrody, Excommunication is no plea in disability of the Plaintiff, because it is the Suit of the King for contempt to his Law. vide 21 Hen. 7. 71. Kelway 6. in quare non admisit,20 4 Edw. 4. 37. for not delivery of a Libell in the Common Pleas, and then he shall have a Prohibition by all the Justices: so upon the Statute of 2 Edw. 6. c. 13. for suing for Tythes where there is a prescription, &c. And this shall be to introduce multiplication of Suits, when himself gives cause of Prohibition, 38 Hen. 6. 14. 22 Edw. 4. 20. 13 Edw. 3. title Prohibition, 11. after a Judgment in the Common Pleas, after which the Patron sues the Recoverer in Chancery, surmising equity, Attachment upon a Prohibition out of the Common Pleas, yet no Plea pendent.
Note, the Reporter reported this Attachment to issue out of the Common Pleas, for the Chancellor would not prohibite him.
32 Hen. 6. 34. An Attorney in the Palace assaulted and menaced, the Court shall take a Bill and enquire of it, 4 Edw. 4. 36, 37. there a Prohibition without view of Libell, for this, that action was pendent, Statham Prohibition 3.
Prohibition super Articulos,21 title Prohibition plea 5. gives a Prohibition before, scil. Coram Justiciariis nostris apud West.22vide F. N. B. fol. 69 b. in a Writ of Pone, Register indic. coram Justiciariis nostris apud West.23 is the Common Pleas, F. N. B. 64 d. 38 Edw. 3. 14. Statute 2 Edw. 6. cap. 13. such Courts grant Prohibitions who have used to grant them: Hales Case in | my Reports. Note the reason that many Prohibitions were granted in the Kings Bench, for that no Writ of Error lies but in Plaint.
(1608) Michaelmas Term, 6 James I.
First Published in the Reports, volume 12, page 63.
Ed.: A note Case. A ferryman was carrying forty-seven people, including a fellow named Mouse, when a storm blew up and threatened the barge. A fellow passenger threw over all of the cargo to save the barge, including Mouse’s casket, with £113 inside. Mouse sued but lost. In Cases of necessity, anyone may act to save lives and there is no liability to them, although there may be liability against the ferryman.
In an action of Trespasse brought by Mouse, for a Casket, and a hundred & thirteen pounds, taken and carried away; the Case was, the Ferry-man of Gravesend took forty seven Passengers into his Barge, to passe to London, and Mouse was one of them, and the Barge being upon the water, a great Tempest hapned, and a strong wind, so that the Barge and all the passengers were in danger to be drowned, if a Hogshead of Wine and other ponderous things were not cast out, for the safeguard of the lives of the men: It was resolved per totam Curiam,1 that in case of necessity, for the saving of the lives of the passengers, it was lawfull to the Defendant being a passenger to cast the Casket of the Plaintiff out of the Barge, with the other things in it, for Quod quis ob tutelam corporis sui fecerit, jure id fecisse videtur,2 to which the Defendant pleads all this speciall matter; and the Plaintiff replies, De injuria sua propria absque tali causa:3 And the first day of this Term, this Issue was tried, and it was proved directly, that if the things had not been cast out of the Barge, the passengers had been drowned: And that Levandi causa,4 they were ejected; some by one passenger and some by another; And upon this the Plaintiff was non-suit.
It was also resolved, that although the Ferry-man sur-charge the Barge, yet for safety of the lives of Passengers in such a time and accident of necessity, it is lawfull for any passenger to cast the things out of the Barge: And the Owners shall have their remedy upon the sur-charge against the Ferry-man, for the fault was in him upon the sur-charge; but if no sur-charge was, but the danger accrued only by the act of God, as by Tempest, no default being in the Ferry-man, every one ought to bear his losse for the safeguard of the life of a man, for Interest Reipublicae quod homines conserventur,5 8 Edw. 4. 23, &c. 12 Hen. 8. 15. 28 Hen. 8. Dyer 36. plucking down of a house in time of fire, &c. And this Pro bono publico, & conservatio vitae hominis est bonum publicum.6 So if a Tempest arise in the Sea, Levandi navis causa,7 and for salvation of the lives of men, it may be lawfull for Passengers to cast over the Merchandizes, &c.
Prohibitions del Roy.
(1607) Michaelmas Term, 5 James I.
In Conference Before the King. First Published in the Reports, volume 12, page 63.
Ed.: These are Coke’s notes of a conference in which he and his fellow Judges informed the King that he does not have the privilege to personally decide a Case at Law. The Law requires an artificial logic, in which he is not skilled. The Law, also, protects the King. These were not the answers the King was expecting; James was a strong proponent of the divine right of monarchy and saw little merit to being beholden to the Law. Other reports of this conference do not depict Coke in as cool a light. Even so, this report was widely circulated after its publication. This opinion reflects remarks in Bracton and Fleta, earlier Law Books, but no one had been quite so bold in presenting the ideas to a monarch. As a cornerstone of modern notions of the rule of Law and an independent judiciary, the report is one of the most important Law opinions in the history of the Common Law.
Note, upon Sunday the 10th of November, in this same Term, the King, upon complaint made to him by Bancroft, the Archbishop of Canterbury, concerning Prohibitions, the King was informed, that when the question was made of what matters the Ecclesiastical Judges have Cognizance, either upon the exposition of the Statutes concerning tithes, or any other thing Ecclesiastical, or upon the Statute 1 Eliz. concerning the high Commission, or in any other case in which there is not express authority in Law, the King himself may decide it in his Royall person; and that the Judges are but the delegates of the King, and that the King may take what Causes he shall please to determine, from the determination of the Judges, and may determine them himself. And the Archbishop said, that this was clear in Divinity, that such Authority belongs to the King by the Word of God in the Scripture. To which it was answered by me, in the presence, and with the clear consent of all the Judges of England, and Barons of the Exchequer, that the King in his own person | cannot adjudge any case, either criminall, as Treason, Felony, &c. or betwixt party and party, concerning his Inheritance, Chattels, or Goods, &c. but this ought to be determined and adjudged in some Court of Justice, according to the Law and Custom of England, and always Judgments are given, Ideo consideratum est per Curiam,1 so that the Court gives the Judgment: And the King hath his Court, viz. in the upper house of Parliament, in which he with his Lords is the supream Judge over all other Judges; for if Error be in the Common Pleas, that may be reversed in the King’s Bench: And if the Court of King’s Bench err, that may be reversed in the upper house of Parliament, by the King, with the assent of the Lords Spirituall and Temporall, without the Commons: And in this respect the King is called the chief Justice, 20 Hen. 7. 7 a. by Brudnell:2 And it appears in our Books, that the King may sit in the Star Chamber, but this was to consult with the Justices, upon certain questions proposed to them, and not in Judicio;3 so in the King’s Bench he may sit, but the Court gives the Judgment: And it is commonly said in our Books, that the King is alwaies present in Court in the Judgment of Law; and upon this he cannot be non-suit: But the Judgments are always given Per Curiam;4 and the Judges are sworn to execute Justice according to Law and Custom of England. And it appears by the Acts of Parliament of 2 Edw. 3. cap. 9. 2 Edw. 3. cap. 1. That neither by the great Seal, nor by the little Seal, Justice shall be delayed; ergo, the King cannot take any cause out of any of his Courts, and give Judgment upon it himself,5 but in his own cause he may stay it, as it doth appear, 11 Hen. 4. 8. And the Judges informed the King, that no King after the conquest assumed to himself to give any Judgment in any cause whatsoever, which concerned the administration of Justice within this Realm, but these were solely determined in the Courts of Justice: And the King cannot arrest any man, as the Book is in 1 Hen. 7. 4. for the party cannot have remedy against the King; so if the King give any Judgment, what remedy can the party have, vide 39 Ed. 3. 14. One who had a Judgment reversed before the Councill of State; it was held utterly void for that it was not a place where Judgment may be reversed, vide 1 Hen. 7. 4. Hussey chief Justice, who was Attorney to Edward the fourth reports that Sir John Markham, chief Justice, said to King Edward the fourth that the King cannot arrest a man for suspicion of Treason or Felony, as others of his Lieges may; for that if it be a wrong to the party grieved, he can have no remedy: and it was greatly marvelled that the Arch-bishop durst inform the King, that such absolute power and authority, as is aforesaid, belonged to the King by the word of God, vide 4 Hen. 4. cap. 22. which being translated into Latin, the effect is, Judicia in Curia Regis reddita non annihilentur, sed stet judicium in suo robore quousque per judicium Curiae Regis tanquam erroneum, &c. vide West. 2. cap. 5. vide le Stat. de Marlbridge, cap. 1. Provisum est, concordatum et concessum, quod tam majores quam minores justitiam habeant et recipiant in Curia Domini Regis, et vide le Stat. de Magna Charta,6cap. 29. 25 Ed. 3. cap. 5. None may be taken by petition or suggestion made to our Lord the King or his Council, unless by Judgment: And 43 Ed. 3. cap. 3. no man shall be put to answer without presentment before the Justices, matter of Record, or by due process, or by writ Originall, according to the ancient Law of the Land: And if any thing be done against it, it shall be void in Law and held for Error, vide 28 Ed. 3. c. 3. 37 Ed. 3. cap. 18, vide 17 Ric. 2. ex rotulis Parliamenti in Turri, act. 10.7 A controversy of Land between parties was heard by the King, andsentence given, which was repealed for this, that it did belong to the Common Law: Then the King said, that he thought the | Law was founded upon reason, and that he and others had reason, as well as the Judges: To which it was answered by me, that true it was, that God had endowed his Majesty with excellent Science, and great endowments of nature; but his Majesty was not learned in the Lawes of his Realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his Subjects; they are not to be decided by naturall reason but by the artificiall reason and judgment of Law, which Law is an act which requires long study and experience, before that a man can attain to the cognizance of it; And that the Law was the Golden metwand and measure to try the Causes of the Subjects; and which protected his Majesty in safety and peace: With which the King was greatly offended, and said, that then he should be under the Law, which was Treason to affirm, as he said; To which I said, that Bracton saith, Quod Rex non debet esse sub homine, sed sub Deo et Lege.8*
The Lord Aburgaveney’s Case.
In the Parliament.
First Published in the Reports, volume 12, page 70.
Ed.: This is a note of a judicial conference which resolved a questionreferred to it by members of the House of Lords, whether a man is made a baron or noble on the making of a writ, the delivery of the writ, or being seated in Parliament by command of the writ. The Judges rule that he must sit, although the ennoblement of a baron created by the king by letters patent under the Great Seal is created once the letters are made. This Case fore-shadows some of the technical problems at the heart of the later U.S. Case of Marbury v. Madison.
The Writ doth not make a Peere, &c.In the Parliament a question was made by the Lord of Northampton, Lord privy Seale, in the upper house of Parliament; That one Edward Nevil, the father of Edward Nevil, Lord of Aburgaveney, which now is, in the 2, and 3. of Queen Mary, was called by Writ to Parliament, and died before the Parliament: If he was a Baron, or no, and so ought to be named, was the question; and it was resolved by the Lord Chancellor, the two chief Justices, chief Baron, and divers other Justices there present, that the direction and delivery of the Writ did not make a Baron or Noble, until he did come to the Parliament, and there sit, according to the commandment of the Writ, for until that, the Writ did not take its effect, & the words of the Writ were wel penned, which are, Rex & Regina, &c. Edwardo Nevil de Aburgaveny Chivalier, quia de advisamento & assensu consilii nostri pro quibusdam arduis, & urgentibus negotiis statum & defensionem regni nostri Angliae concernentibus, quoddam Parliamentum nostrum apud Westmonasterium, 21 die Octobris proximo futuro teneri ordinavimus, & ibidem vobiscum, ac cum Praelatis, Magnatibus & Proceribus dicti regni nostri colloquium habere & tractatum: vobis in fide & Ligeantia, quibus nobis tenemini, firmiter jungendo mandamus, quod consideratis dictorum negotiorum arduitate & periculis iminentibus, cessante excusatione quacunque, dictis die & loco personaliter intersitis nobiscum, ac cum Praelatis, Magnatibus ac Proceribus supradictis, super dictis negotiis tractaturis, vestrumque consilium impensur. & hoc sicut nobis, &c.1 And in the 35 Hen. 6. 46. and other Books, he is called a Peer of Parliament, the which he cannot be until he sit in Parliament, and he cannot be of the Parliament until the Parliament begin: And forasmuch as he hath been made a Peer of Parliament by Writ (by which implicitly he is a Baron) the Writ hath not its operation and effect, until he sit in Parliament, there to consult with the King and the other Nobles of the Realm; which command of the King by his Supersedeas2 may be countermanded, or the said Edward Nevil might have excused himself to the King, or he might have waived it, and submitted himself to his Fine, as one who is destrained to be a Knight, or one learned in the Law is called to be a Serjeant, the Writ cannot make him a Knight, or a Serjeant; And when one is called by Writ to Parliament, the order is, that he be apparrelled in his Parliament Robes, and his Writ is openly read in the upper house, and he is brought into his place by two Lords of Parliament, and then he is adjudged in Law, Inter pares Regni,3 that is to say, Ut cum olim Senatores e censu eligebantur, sic Barones apud nos habiti fuerint, qui per integram Baroniam terras suas tenebant, sive 13. feoda militum, & tertiam partem unius Feodi militis, quolibet Feodo computato ad 20 l. quae faciunt 400 marcas denarii erat valentia unius Baroniae integrae, & qui terras & redditus ad hanc valentiam habuerint, ad Parliamentum summoniri solebant;4 So that by this it appears, that every one who hath an entire Barony may have of right and of course a Writ to be summoned to Parliament, for without Writ none can sit in Parliament: And with this agrees our Books, for Una voce5 they agree, that none can sit in Parliament as Peer of the Realm, without matter of Record, and if Issue be taken, whether a Baron or no Baron, Earl or no earl, this shall not be tryed per paiis,6 but by the Record, by which it appears, that he was a Peer of Parliament, for without matter of Record he cannot be a peer of Parliament, | 35 Hen. 6. 46. 48 Edw. 3. 30 b. 48 Ass. pl. 6. 22 Ass. pl. 24. Register, 287. Henricus tertius post magnas perturbationes & enormes exactiones inter ipsum Regem, Simonem de Monte forti, & alios Barones motas & susceptas, statuit & ordinavit, quod omnes illi Comites & Barones regni Angliae, quibus ipse Rex dignatus est brevia summonitionis dirigere, venirent ad Parliamentum, & non alii nisi forte dominus Rex alia illa brevia eis dirigere voluisset:7 Which Act or Statute continues in force to this day, so that now none, although that he hath an entire Barony, can have a Writ of Summons to Parliament without the King’s Warrant, under the privy Seal at least.
But if the King create any Baron by Letters Patents under the great Seal to him and to his Heirs, or to him and to his Heirs of his body, or for life, &c. there he is a noble man presently, for so he is expressly created by Letters Patents of the King, which cannot be countermanded: And he ought to have a Writ of Summons to Parliament of right and of course, and he shall be tryed by his Peers, if he shall be arraigned before any Parliament, but so shall not he be who is called by Writ, until he sits in Parliament, which is the diversity.
Richard the second created John Beauchamp of Holt, Baron of Kidderminster, by Letters Patents, dated 10. Oct. 11. year of his Raign, where all others before him were created by Writ.
(1610) Trinity Term, 8 James I.
First Published in the Reports, volume 12, page 72.
Ed.: These notes are of a judicial conference in which the limits of the powers of a Church Convocation are discussed. Particularly, the convocation cannot change the requirements of Common Law, Statute, or custom.
Convocation.Note, it was resolved by the two chief Justices and divers other Justices, at a Committee before the Lords in the same Parliament, on divers points concerning the authority of a Convocation.
1. That a Convocation cannot assemble at their Convocation without the assent of the King.
2. That after their assembly they cannot confer together to constitute any Cannons without licence del Roy.
3. When they upon conference conclude any Cannons, yet they cannot execute any of their Cannons without Royall assent.
4. They cannot execute any after Royall assent, but with these four limitations:
1. That they be not against the Prerogative of the King.
2. Nor against the Common Law.
3. Nor gainst any Statute Law.
4. Nor against any Custome of the Realm.
And all this appears by the Statute 25 Hen. 8. cap. 19. and this was but an affirmance of what was before the said Statute, for that it appears by the 19 Edw. 3. title Quare non Admisit, 7. where it is held, that if a Cannon Law be against the Law of the Land, the Bishop ought to obey the commandment of the King, according to the Law of the Land, 10 Hen. 7. 17. there is a Cannon that no Spirituall person shall be put to answer before a secular Judge; But this does not bind, because it is against the Common Law: And it appears by the Statute of Merton cap. 9. that they in case of Bastardy, were enforced to certifie against the Law of the church, that Nati ante matrimonium fuerint Bastardi, quia Ecclesia habet tales pro legitimis, & rogaverunt omnes Episcopi Magnates quod consentirent, quod qui nati fuerint | ante matrimonium essent legitimi,1 which proves, that the Cannon Law in this point being repugnant to the Law of the Land, was not of any force: And for this, they implored the aid of the Parliament, Et omnes Comites & Barones una voce responderunt, quod nolumus leges Angliae mutari, quae huc usque usitatae sunt et approbatae.2
2 Hen. 6. 13. A Convocation may make Constitutions, by which those of the Spiritualty shall be bound, for this, that they all, or by representation, or in person, are present, but not the temporalty.
21 Edw. 4. 47. The Convocation is spirituall, and all their Constitutions are Spirituall. Vide the Records in the tower of 18 Hen. 8. 8 Edw. 1. 25 Edw. 1. 11 Edw. 2. and 15 Edw. 2.
Prohibitio Regis ne Clerus in Congregatione sua, &c. attemptet contra jus seu Coronam: alia, ne quod statuat in Concilio suo in prejudicium Regis seu legis, &c.3 By which it appears, that they can do nothing against the Law of the Land; for every part of the Law, be it Common Law, or Statute Law, cannot be abrogated nor altered without an Act of Parliament, to which every one shall be party, except for Spirituall Causes, or which concern Spirituallpersons, if it be against the Prerogative of the King and the Common Law.
(1610) Michaelmas Term, 8 James I.
In Conference Before the Lord Treasurer.
First Published in the Reports, volume 12, page 74.
Ed.: These are Coke’s notes of a conference with the Privy Council, in which the King and Council sought an opinion on the authority of the King to pass proclamations to restrict building in London or to regulate the trade in starch, which was particularly in demand for the clothing of the well to do, as it was necessary for ruffed collars. Coke, with Chief Justice Fleming, Chief Baron Tanfield, and Baron Altham, initially refused to answer without consulting other Judges. Later, Coke answered, saying that the King can only require subjects to obey the Law, but he could not extend his prerogative beyond its legal bounds, could not create new crimes, and could not enlarge the criminal jurisdiction of Star Chamber. It was one of Coke’s most significant attacks on the royal prerogative.
Memorand. That upon Thursday, 20 Sept 8 Regis Jacobi, I was sent for to attend the Lord Chancellor, Lord Treasurer, Lord privy Seal, and the Chancellor of the Dutchy; there being present the Attorney, the Solicitor, and Recorder: And two questions were moved to me by the Lord Treasurer; the one if the King by his Proclamation may prohibit new Buildings in and about London, &c. The other, if the King may prohibit the making of Starch of Wheat; And the Lord Treasurer said, that these were preferred to the King as grievances, and against the Law and Justice: And the King hath answered, that he will confer with his privy Council, and his Judges, and then he will do right to them; To which I answered that these questions were of great importance. 2. That this concerned the answer of the King to the body, viz. to the Commons of the house of Parliament. 3. That I did not hear of these questions untill this morning at nine of the Clock: for the grievances were preferred, and the answer made when I was in my Circuit. And lastly, both the Proclamations, which now were shewed, were promulgated, anno 5 Jac. after my time of Attorney-ship: And for these reasons I did humbly desire them that I might have conference with my Brethren the Judges about the answer of the King, & then to make an advised answer according to law and reason. To which the Lord Chancellor said, that every President had first a commencement, and that he would advise the Judges to maintain the power and Prerogative of the King; and in cases in which there is no authority and President, to leave it to the King to order in it according to his wisdome, and for the good of his Subjects, or otherwise the King would be no more than the Duke of Venice; And that the King was so much restrained in his Prerogative, that it was to be feared the bonds would be broken: And the Lord privy Seal said, that the Physitian was not alwaies bound to a president, but to apply his Medecine according to the quality of the disease:Andallconcluded that it should be necessary at that time to confirm the Kings Prerogative with our Opinions, although that there were not any former President or Authority in Law, for every President ought to have a Commencement.
| To which I answered, That true it is, that every President hath a Commencement, but when Authority and President is wanting, there is need of great considerations, before that any thing of novelty shall be established, and to provide that this be not against the Law of the Land: for I said, that the King cannot change any part of the Common Law, nor create any Offence by his Proclamation, which was not an Offence before, without Parliament. But at this time I only desired to have time of consideration and conference with my Brothers, for Deliberandum est diu, quod statuendum est semel;1 To which the Solicitor said, that divers Sentences were given in the Star Chamber upon the Proclamation against building, and that I my self had given sentence in divers cases for the said Proclamation: to which I answered, that Presidents were to be seen, and consideration to be had of this upon conference with my Brethren, for that Melius est recurrere, quam male currere;2 And that Indictment concludes, Contra leges & statuta;3 but I never heard an Indictment to conclude, Contra Regiam Proclamationem.4 At last my motion was allowed, and the Lords appointed the two chief Justices, chief Baron, and Baron Altham to have consideration of it.
Note, the King by his Proclamation, or other waies, cannot change any part of the Common Law, or Statute Law, or the Customs of the Realm, 11 Hen. 4. 37. Fortescue in laudibus Angliae legum, cap. 9. 18 Edw. 4. 35, 36, &c. 31 Hen. 8. cap. 8. hic infra: Also the King cannot create any Offence by his Prohibition or Proclamation, which was not an Offence before, for that was to change the Law, and to make an Offence which was not, for Ubi non est lex, ibi non est transgressio, ergo,5 that which cannot be punished without proclamation, cannot be punished with it. Vide le Stat. 31 Hen. 8. cap. 8. which Act gives more power to the King then he had before, and yet there it is declared, that proclamation shall not alter the Law, Statutes, or Customs of the Realm, or impeach any in his Inheritance, Goods, body, life, &c. But if a man shall be indicted for a contempt against a Proclamation, he shall be fined and imprisoned, and so impeached in his body and goods, vide Fortescue, cap. 9. 18. 34. 36. 37, &c.
But a thing which is punishable by the Law, by fine and imprisonment, if the King prohibit it by his Proclamation, before that he will punish it, and so warn his Subjects of the peril of it, there if he commit it after, this as a Circumstance aggravates the Offence; But he by Proclamation cannot make a thing unlawful, which was permitted by the Law before: And this was well proved by the ancient and continuall forms of Indictments, for all Indictments conclude, Contra legem & consuetudinem Angliae,6 or Contra leges & statuta, &c.7 but never was seen any Indictment to conclude Contra Regiam proclamatíonem.8
So in all cases the King out of his providence, and to prevent dangers, which it will be too late to prevent afterwards, he may prohibit them before, which will aggravate the Offence if it be afterwards committed: And as it is a grand Prerogative of the King to make Proclamation (for no Subject can make it without authority from the King, or lawfull Custom) upon pain of fine and imprisonment, as it is held in the 22 Hen. 8. Procl. B. but we do finde divers Precedents of Proclamations which are utterly against Law and reason, and for that void, for, Quae contra rationem juris introducta sunt non debent trahi in consequentiam.9
An Act was made, by which Forraigners were licensed to Merchandize within London, Hen. 4. by Proclamation prohibited the execution of it, and that it should be in suspence Usque ad proximum Parliamentium,10 which was against Law, vide dors. claus. 8 Hen. 4. Proclamat. in London. But 9 Hen. 4. | An Act of Parliament was made, That all the Irish people should depart the Realm, and go into Ireland before the feast of the Nativity of the blessed Lady, upon pain of death, which was absolutely in terrorem, and was utterly against the Law.
Hollinshed 722. An. Dom: 1546. 37 Hen. 8. the Whore-houses, called the stews, were suppressed by Proclamation, and sound of Trumpet, &c.
In the same Term it was resolved by the two chief Justices, chief Baron, and Baron Altham, upon conference betwixt the Lords of the privy Council and them, that the King by his Proclamation cannot create any Offence which was not an Offence before, for then he may alter the Law of the Land by his Proclamation in a high point, for if he may create an Offence where none is, upon that ensues fine and imprisonment: Also the Law of England is divided into three parts, Common Law, Statute Law, and Custom; But the Kings Proclamation is none of them: Also Malum, aut est malum in se, aut prohibitum,11 that which is against Law is malum in se; malum prohibitum12 is such an Offence as is prohibited by Act of Parliament, and not by Proclamation.
Also it was resolved, that the King hath no Prerogative, but that which the Law of the Land allows him.
Tribuna plebium interrangte.13But the King for Prevention of Offences, may by Proclamation admonish his Subjects that they keep the Lawes, and do not offend them, upon punishment to be inflicted by the Law, &c.
Lastly, if the offence be not punishable in the Star Chamber, the Prohibition of it by Proclamation cannot make it punishable there: And after this resolution, no Proclamation imposing Fine and Imprisonment, was afterwards made, &c.
(1605) Hillary Term, 2 James I.
In the Court of Common Pleas.
First Published in the Reports, volume 12, page 104.
Ed.: A note on a grant of a writ of habeas corpus to a litigant arrested by the Court of Admiralty for failing to give evidence in a Case filed before it, but which did not happen on the sea and was not in its jurisdiction. A note by the editors of the first edition suggests that this opinion was written for insertion into Part Seven of the Reports, but Coke withdrew it on the command of the King.
Theodore Thomlinson had brought an action of Account for Goods against one Philips in the Common Pleas, and thereupon Philips sued Thomlinson in the Court of the Admiralty, supposing the Goods to have been received in forain parts beyond the Seas: and the said Thomlinson being committed for refusing to answer upon his Oath to some Interrogatories there proposed to him, brought his Habeas Corpus,1 which was returned thus, Ego William Pope Marescallus supremae Curiae Admiralitatis Angliae Dom. Justic. Sereniss.Reginae nostrae in brevi huic Schedulae annex. specificat. Certific. quod infra vocat. Theodore Thomlinson ante advent. istius brevis capt. fuit & custodiae meae commiss. ex eo quod dictus Theodorus Thomlinson vinculo sacramenti coram Judice Admiralitatis Angliae astrictus ab respondend. quibusdam articulis contra eum in dictâ cur’ dat’ &c. sub poena quinque librarum &c. contumaciter examen suum subire recusavit, Idcirco, &c.2 And it was resolved by the Court of Common Pleas.
1. That the Court of Admiralty hath no Cognizance of things done beyond Sea, And this appears plainly by the Statute of 13 Ric. 2. cap. 5. the words of which Statute are, that the Admirals and their Deputies shall not meddle from henceforth of any thing done within the Realm, but only of a thing done upon the Sea, Vide 19 Hen. 6. fol. 7. For things transitory done beyond the Seas, are either triable in the Kings Courts, or the party grieved may have his remedy before the Justices where the Fact was done beyond Seas.
2. That the proceedings in the Court of the Admiralty are according to the course of the Civill Law, and therefore the Court is not of Record, and by consequence cannot assesse any Fine in such case, as Judges of a Court of Record may do.
3. That the Return above mentioned was insufficient, as being too generall, because it is not specified for what cause or matter Thomlinson was examined, so as it might appear that the Interrogatories were of such things, as were within their Jurisdiction, and that the party ought by Law to answer upon his Oath, for otherwise he might very well refuse.
This case was intended to have been inserted by my Lord Coke into his 7th. Report, but not then published, because the King commanded that it should not be Printed, but the Judges resolved ut supra.
Walter Chute’s Case.
(1614) Easter Term, 12 James I.
In Conference in Serjeants’ Inn.
First Published in the Reports, volume 12, page 116.
Ed.: This is a note of an unusual judicial conference in which they considered the legality of the King’s creating a variety of offices, particularly one for Walter Chute to register aliens. The Judges held that it would be illegal for the King to create the office, because it would be more for private gain than for public benefit. This is an important limit imposed by Law on royal patronage and so on royal revenue.
New erected office void.Walter Chute Sewer to the King, did exhibite a Petition to the King, that for the safety of the Realm, and the security of strangers within the Realm, that the King would vouchsafe to erect a new Office of Registering of all strangers within the Realm, except Merchant-strangers, to be kept at London, and to grant the said Office to the Petitioner, with a reasonable Fee, or without a Fee: And that all strangers, except Merchant-strangers, might depart the Realm within a certain convenient time, if they do not repair to the said Register, and take a Billet under the Registers hand: Which Petition the Lords of the Councel did refer to me, by their honourable Letters of the 13. ofNovem. 1613, that I calling to me Counsel learned in the Law, should consider what the Law is in that behalf, and how it may stand with conveniency and policy of State, to put the same in execution, and by whom it ought to be performed: And upon conference had with the Justices of the Common Pleas, and the other Justices and Barons of Serjeants Inne Fleetstreet; It was resolved, that the erections of such new Offices, for the benefit of a private man was against all Law, of what nature soever: And therefore where one Captain Lee did make suit to the King to have a new office to make Inventory of Goods of those who died testate or intestate; It was resolved by the Lord Chancellor and my self, that such Grant shall be utterly void, although no certain person hath it, and that this was against Common Law, and the Statute of 21 Hen. 8. In like manner, another sued | to have the Registering of Birth-dates, and the time of the death of each person within the Realm, and that it might be on Record and authenticall: So Mich. 19 Jac. To make a new Office in the upper Bench, for the only making of all Latitats at the suit of the Lord Daubigny, and after him of the Lord John Hungerford, and others, was resolved to be void. So Littletons suit, to name an Officer to be a generall Register, or rather Tabler or Indexer of all Judgements, for Debts and Damages, Recognizances, Bils, Obligations to the King, Deeds inrolled, Fines upon Offenders in the Star Chamber, and other Courts whatsoever: and this was pretended to be for the benefit of the Purchaser, and the ready finding of Records; and to such purpose was made the Statute of the 27 Eliz. for inrolling of Statutes; but the Suit was rejected by the two chief Justices and others: for every Court shall choose Officers either by Law or Prescription: the Law or Custom may not be changed without a Parliament; and so it was resolved Hil. 12 Jac. Regis; and divers other such inventions were resolved to be against Law and Record.
As to the second, in the case of Sir Walter Chute, concerning the conveniency or inconveniency of it, it was resolved, that it was inconvenient for divers causes. 1. For a private man to have private ends. 2. The numbring of Strangers by a private man would infer a Terror, and the King and Princes of other Countries will take offence at it, and will do the like to the Kings Subjects. 3. It is to be considered what breach it will be to former Treaties.
As to the third, in the case of Sir Walter Chute, that may be performed without any inconvenience; and so it was devised by the Lord Burleigh, and other Lords of the Councel: An. 37 Eliz. viz. To write Letters to the Mayors, Bayliffs, or other head Officers of every City, Borough, or Town, where any strangers are resident, to certifie how many strangers, and of what quality are in their Cities, &c. the which they are to know in respect of their Inhabitants, and Contributions to the poor, and other charges, and this may be done without any writing.
Which Suit being made to the Lords, was well approved by them, and the Suit utterly disallowed the 3. Dec. An. 3 Hen. 8. Commission granted to divers, to certifie the number of Strangers, Artificers, with the number of their Servants within London, and the Suburbs thereof, &c. according to the Statutes. See Candishs Case, 29 El. for making of all Writs of Supersedeas in the Kings Bench.
13 Eliz. A grant of an Office of Thomas Knivet, to examine all his Majesties Auditors and Clerks of the Pipe concerning their Offices for years: It was resolved by the Court to be against Law, for it belongs to the Barons who are Judges; and it is also an Invocation in a Court of Justice. 25 Eliz: A Grant of an Office to Thomas Leichfield to examine all deceits false allowances of the Queens officers for eight years, resolved to be void.
The making of Subpoenas in Chancery anciently belonged to the six Clerks: The late Queens Majesty granted the same by Patent to one particular man.
The keeping and filing of Affidavits in Chancery anciently belonged to the Register. The Kings Majesty, that now is, granted the same to one particular man.
The erecting and putting down of Innes hath been anciently in the power of the Justice of Peace. His Majesty hath given that power by Patent to a particular man.
| The taking of the Depositions, and all other proceedings, before and by the Commission which hath used to be taken and kept by the Commissioners themselves, or some Clerk of their appointment; his Majesty hath granted the same by Patent to one particular man.
The King by his Letters Patents granted to Simon Darlington the Office of Alveger and limited what Fees he should take.
The sole drawing, writing, and ingrossing of all Licences and Pardons was granted to Edward Bacon Gent. with the Fee that had formerly been taken, and a Restraint for all others, &c.
The Offices of Subpoenas was granted to Thomas George and others during life, with the fee of 2s. and a restraint that no others presume to make those Writs.
The Office of making and registering all manner of assurances and Policies, &c. was, by Letters Patents granted to Richard Gandler Gent. with such fees as the Lord Major and others should rate, with power toratefees, and arestraint of all others, &c. which was during pleasure, and afterwards to him and others during lives.
The Office of writing Tallies and Counter-Tallies granted to Sir Vincent Skinner.
Quare.The office of ingrossing Patents to the great Seal, and an encrease of fees granted late to Sir Richard Young, and Mr. Pye.
Sir Stephen Procter’s [Proctor’s] Case.
(1614) Easter Term, 12 James I.
In Conference in Star Chamber.
First Published in the Reports, volume 12, page 118.
Ed.: Note of a judicial conference in Star Chamber, on the result when Judges are evenly divided on a judgment. The Common Law courts did not enter judgment unless there was a majority. The Chief Justices held that the matter for the Star Chamber should be resolved according to its own precedents. Coke recites only two, which are not utterly conclusive.
Judges divided in the Star Chamber.In an Information preferred in the Star Chamber by the Attorney-generall, against Stephen Procter, Berkenhead, and others, for Scandall and Conspiracy of the Earl of Northampton, and the Lord Wooton. At the hearing of this case, were present eight Lords, Scil. The chief Baron, the two chief Justices, two Bishops, one Baron, the Chancellor of the Exchequer, and the Lord Chancellor: And the three chief Justices, and the Temporall Baron condemned Sir Stephen Procter, and fined and imprisoned him: But the Lord Chancellor, the two Bishops, and the Chancellor of the Exchequer acquitted him. And the question was, if Sir Stephen Procter shall be condemned or acquitted; and it seemed to some of the Clerks prima facie,1 that the better shall be taken for the King, and that he shall be condemned, but others were of the contrary opinion; and hereupon the matter was referred to the two chief Justices, calling to their assistance the Kings learned Councel: And first they resolved, that this question must be determined by the Presidents of the Court of Star Chamber, for that Court is against the rule and order of all other Courts, for in the Kings Bench, the Common Pleas, or the Exchequer, or in the Exchequer Chamber, where all the Justices are assembled, if the Justices are equally divided, no judgment can be given. And so it is in the Court of Parliament; and therefore this course ought to be warranted by the custom of the Court: And as to that, two Presidents only were produced for the maintenance of the said Custom, Viz. One in the Hilary Term, 39 El. between GibsonPlaintiff, and Griffith and others Defendants, where the Complaint was for a Riot, and at the hearing of the Case, there was eight present, four gave their judgements that the Defendants were guilty, but the other four, whereof the Lord Chancellor was one, pronounced | the Defendants not guilty, and no sentence of condemnation was ever entered, because the Lord Chancellor was one of the four who acquitted them. The other was Hil. 45 Eliz. In an information by the Attorney-general against Katherne and others, for forging of a Will, and a Misdemeanor for procuring a fraudulent Deed to defeat the Queen of her Escheat: And eight were in presence at the hearing of the Cause, whereof four found the Defendants guilty of Forgery, and did inflict the punishment according to the Statute of the 5 Eliz. but the others, whereof the Lord Chancellor was one, gave sentence, that the Defendants were guilty of the Misdemeanor, and not of the Forgery, and imposed a fine of 500 l. only, which decree was entered according to the Lord Chancellors voice, although the sentence on the other side was more beneficiall for the King, and no other president could be found in this case, the which I have reported this Term.
Exaction of Benevolence.
First Published in the Reports, volume 12, page 119.
Ed.: In this note case, Coke described the precedents for the monarch requesting gifts from wealthy nobles to fund various projects when there was no money left from the last Parliamentary supply, or grant of taxes. Because the benevolences were technically voluntary, they were lawful. This case has a considerable significance as a predecessor decision to the Five Knights’ Case and the Petition of Right.
Concerning Benevolence.Note, the exaction under the good name of Benevolence began in this manner.
When King Edward the fourth, had a Subsedy granted to him in the 12 Edw. 4. by Parliament, because he could have no more by Parliament, and without a Parliament he could not have any Subsedy to be levied of the Lands and Goods of the Subject, he invented this shift or device, in which three things are to be observed.
1. The cause.
2. The Invention.
3. The Successe.
1. The Duke of Burgandy, who had married Margaret, the Sister of Edward the fourth solicited King Edward to joyn in War with him against the French King, to which the King easily consented, because he sought revenge against the French King for aiding the Earl of Warwick, Queen Margaret, and Prince Edward, and their party, and therefore, to make War against the French King, was the cause.1
2. The invention was, The King called before him at severall times a great number of the wealthiest of his Subjects, to declare to them his necessity, and his purpose to levy War for the honour and safety of the Kingdom, and demanded of each of them a certain summ of money, and the King treated with them, with such great grace and clemency, and with such gentle prayer to assist him in his necessity, for the honour of the Realm, that they very freely yeelded to his request, for the honour and safety of the Realm. Amongst the rest, there was a Widow of a very good Estate, of whom the King meerly asked what she would willingly give him for the maintenance of his Wars; By my faith, quoth she, for your lovely countenance sake, you shall have twenty pound, which was more then the King expected; the King thanked her, and vouchsafed to kisse her, upon which she presently swore he should have twenty pounds more.
3. The successe and event was: That wheras the King called this a Benevolence to please the people, yet many of the people did much grudge at it, and called it a Malevolence.
Primo Ed. 5. in the Oration of the Duke of Buckingham in Guild hall in London, he inveighed, amongst other things, against this Taxation under the name of Benevolence. 1 Ric. 3. cap. 2. the Subjects of the Realm shall not be charged with such charge or imposition called Benevolence, which tendeth to the subversion of the Law, and destruction of Commonalty, as appears in the Preamble (where any such charge). And that such exaction before taken, under the name of benevolence, shall not be drawn into example | to make such or the like charge, but shall be damned and adnulled for ever: But it appears by the Preamble, that this was against the wil and liberty of the Subject, but a free-wil offering is not restrained.
An. 6 Hen. 7. The King declared in Parliament, that he had just cause of War against the French King, which for the causes there shewn was approved, and for that he desired a Benevolence towards the maintenance of it; and every one promised his helping hand, the which the King greatly commended; and to the intent that the poorer sort might be spared, he demanded it by way of a Benevolence, according to the example of Edward the fourth and published, that he would by their open hands measure their benevolent hearts; and he who gives but a little, according to his gift.
By this means he collected great summs of money, with some grudge for the extremity shewn by the Commissioners, 11 Hen. 7. cap. 20. An Act was made for levying of that Benevolence, according to their assent, but only of such as assented.
An: 20 Hen. 7. A Commission to levy what was granted by 11 Hen. 7.
Note, that 15 Hen. 8. a Commission under the great Seal, called a Commission of Anticipation, to collect the Subsidy before the day.2
An: 16 Hen. 8. For War with France, a Benevolence levied by Commission with great Curses and Imprecations against the Council, and with successe, for it was to levy a sixth part of the value in money or Plate against the good will of the Subject.
An: 26 Hen. 8. Another Benevolence levied by Commission for maintenance of War against France, with ill successe, for it was exacted of the Subject against his good will. But if the Subjects of their free will, without any compulsion, will give to the King for publick uses any summs of money, this is not prohibited by any Statute.
And the Statute 11 Hen. 7. cap. 18. proves this, where the Parliamentcompels them who have freely granted any thing to the King for publick use, to pay it.
Feb. An: 40 Eliz. It was resolved by all the Justices and Barons, that a free Grant to the Queen without coercion is lawfull, and accordingly they granted to the Queen, Quod nota bene, quia, &c.3
[1. ][Ed.: each month,]
[2. ][Ed.: the person for whose benefit a use has been established.]
[3. ][Ed.: Writ establishing the claim of a half-brother when another sibling has entered the land upon the death of their ancestor.]
[4. ][Ed.: So much the more so,]
[5. ][Ed.: in being,]
[6. ][Ed.: A secret agreement to defraud; a conspiracy.]
[7. ][Ed.: A right in the thing,]
[8. ][Ed.: A right to the thing;]
[9. ][Ed.: By reference; implicitly,]
[10. ][Ed.: By order of the law, explicitly.]
[11. ][Ed.: “until;” a temporary prohibition, an order good until an event, such as payment of a debt.]
[12. ][Ed.: The king does not wish to deceive, and cannot be deceived:]
[13. ][Ed.: On the day of the audit of the collection and levying.]
[14. ][Ed.: in his last illness he alienated his tenements and goods and chattels to various persons,]
[15. ][Ed.: To account for the aforesaid collection and to answer and make satisfaction to the lord king, etc. And this was by the chancellor of England and the chief Justices of England, and the other Justices of both benches: which note well.]
[1. ][Ed.: “Notwithstanding,” a clause or writ in which the recipient is excused from some obligation or basis of duty.]
[2. ][Ed.: Statement [or] by Supposition.]
[3. ][Ed.: Notwithstanding he was born a Welshman:]
[4. ][Ed.: Concerning the not granting of tallage, which is a delegated power to collect tolls or tax.]
[5. ][Ed.: “appropriate in the fourth manner.” Perhaps “fourth branch.” The significance of this reference here has so far evaded the editor and all his friends.]
[6. ][Ed.: that is to say, all, only and always.]
[1. ][Ed.: after dinner,]
[2. ][Ed.: Bracketed text omitted from 1656 edition.]
[3. ][Ed.: that is to say,]
[4. ][Ed.: The provenance of this paragraph, from the 1656 edition, is uncertain.]
[1. ][Ed.: Verdict, (literally, “true statement”).]
[2. ][Ed.: In Lawful manner acquitted.]
[3. ][Ed.: so much the more so.]
[4. ][Ed.: That wrongdoing should not remain unpunished.]
[5. ][Ed.: To deter and withdraw jurors from the service of the king.]
[6. ][Ed.: and similar [proofs],]
[7. ][Ed.: And the infinite is to be disapproved in Law.]
[8. ][Ed.: “on the country,” i.e., unsworn, or not a matter of record.]
[9. ][Ed.: Because they have no Record.]
[10. ][Ed.: A county criminal court.]
[11. ][Ed.: That is.]
[12. ][Ed.: one must always be on one’s guard, for in good things there are many snares.]
[13. ][Ed.: that it should be drawn into a precedent.]
[14. ][Ed.: Also, “trail-baston,” established by the Statute of Rageman of 1276, to punish misdemeanors. By the early fifteenth century, they had been replaced by the commissions of oyer and terminer.]
[15. ][Ed.: It is absurd to affirm that the thing adjudged is to be believed and not the Judges.]
[1. ][Ed.: Of the office.]
[2. ][Ed.: That they should not permit any laymen in their bailiwick to be convented in any places to make any recognitions by their oaths, except in matrimonial and testamentary causes.]
[3. ][Ed.: The guilty (i.e. accused) party.]
[4. ][Ed.: an invention of the Devil to drag the souls of the wretched down to Hell:]
[5. ][Ed.: We command youthat youshould not permitanylaymenatthecitationofanybishophenceforth to be convented to make any recognizances or take any oaths . . . except in matrimonial and testamentary causes. (and there is an attachment upon it) Put by gage such and such a bishop that he be before our Justices, etc. to show why he caused lay persons (or lay men and women) to be summoned and to be distrained by the censures of the Church to appear before him to take an oath at his pleasure, against their will, to the grave prejudice of the crown and of our royal dignity, and also against the custom of our realm. And have their the names of the pledges, etc. Witness, etc.]
[6. ][Ed.: Writ to determine the legality of an incarceration. Note also, the bracketed text was omitted from the 1656 edition.]
[7. ][Ed.: Before the ecclesiastical commissioners upon articles for usury, and for that causewascommitted to the Fleet gaol.]
[8. ][Ed.: by the whole court.]
[9. ][Ed.: and Paul before, an apparent reference to the trials of St. Paul. Acts 22–28.]
[10. ][Ed.: against their will, etc.]
[11. ][Ed.: the diocesan, by himself or by his commissaries, should proceed publicly and judicially against such persons, etc. to the full effect of the Law, and determine such business, etc. in accordance with the canonical rules.]
[12. ]Math. Paris, 225, 226, 227, &c.
[13. ][Ed.: For commuting penances,]
[14. ][Ed.: That the legate grew fat on the plenty of England,]
[15. ][Ed.: We have enacted that an oath of accusation in ecclesiastical causes, and also for saying the truth in spiritual matters, so that the truth may more readily appear, and causesbemorespeedilydetermined, shall from henceforth be taken in the realm of England in accordance with the canonical and Lawful rules, any custom obtaining to the contrary notwithstanding, etc.]
[16. ][Ed.: We have enacted that from henceforth it shall be taken in England.]
[17. ][Ed.: From henceforth.]
[18. ][Ed.: Any custom obtaining to the contrary notwithstanding.]
[19. ][Ed.: Bracketed text omitted from the 1656 edition.]
[20. ][Ed.: We have enacted that laymen (who enquire) of the offences and excesses of subjects, which are to be corrected by bishops and ecclesiastical Judges, may take an oath to speak the truth under sentence of excommunication. If need be hinderers may be compelled . . .]
[21. ][Ed.: Here is stated the reason for the promulgation of this Statute, that is to say, that prelates of the Church proceeded to enquire of the crimes and excesses of their subjects, and laymen (note this), supporting the power of temporal lords, would not swear to say the truth in such inquisitions.]
[22. ][Ed.: Compel.]
[23. ][Ed.: In matrimonial and testamentary causes,]
[24. ][Ed.: Wrongs and excess,]
[25. ][Ed.: Bracketed text omitted in the 1656 edition.]
[26. ][Ed.: If prelates impose a pecuniary penalty on anyone for an offence, etc. a royal prohibition shall be available.]
[27. ][Ed.: Bracketed text omitted in the 1656 edition.]
[* ][Ed.: Note the 1656 and 1658 editions record this as “5 Jac. I,” which would be 1607. Later editions record this note as dated “7 Jac. I,” or 1609.]
[1. ][Ed.: So much the more so.]
[2. ][Ed.: Because it is wrong in itself.]
[3. ][Ed.: Because it is (a wrong only) by reason of prohibition.]
[4. ][Ed.: Writ of right brought by the King against anyone who usurped or exceeded the scope of a franchise or office.]
[5. ]Vid. 35 Hen. 6 29 per Fortescue & 16 Ed. 3. grant 53.
[6. ][Ed.: wrong in itself,]
[7. ][Ed.: a wrong [only] by reason of prohibition.]
[1. ][Ed.: that the country should not be more burdened or harmed than is usual.]
[2. ][Ed.: The Statute for not granting tallage [provides that] no tallage or aid shall be imposed or levied by us or our heirs without the will and consent of parliament.
[3. ][Ed.: Great customs and petty customs,]
[4. ][Ed.: An ancient or great custom.]
[5. ][Ed.: A new or petty custom.]
[6. ][Ed.: For the public good.]
[7. ][Ed.: Not for the public good.]
[8. ][Ed.: If any merchants from a land at war with us are found into our land at the beginning of the war, they shall be attached, etc. (until it is known) how the merchants of our land are treated when they are found in the land making war against us; and if our merchants are safe there, they shall be safe in our land.]
[9. ][Ed.: The weal of the people.]
[10. ][Ed.: That he intends to pursue many things prejudicial to us and to our crown in foreign parts,]
[11. ][Ed.: necessity is the Law of the time.]
[12. ][Ed.: Rightful custom.]
[13. ][Ed.: Evil toll.]
[14. ][Ed.: Customs; and in technical vocabulary.]
[15. ][Ed.: Nor does the king, either by himself or his ministers, impose tallages, subsidies, or any other burdens whatever upon his liege subjects, or change their Laws, or make new ones, without the concession and consent of his whole realm expressed in his parliament, etc.]
[16. ][Ed.: The Merchants’ Charter, from the merchants’ rolls of the thirty-first year of Edward I, number 42. Patent (roll) for the third year of Edward I, numbers 1 and 9: for a sack of wool, half a mark; for a last of leather, one mark, and so forth. Fine (rolls) for the third year of Edward I, number 24, inside and not on the dorse. See the rolls of parliament for the thirteenth year of Edward III.]
[1. ][Ed.: The word is spelled “Buggary” in the 1656 edition.]
[2. ][Ed.: Apostate Christians should be drawn and burned. . . . Unnatural offenders and sodomites shall be buried alive in the ground.]
[3. ][Ed.: A crime of lèse-majesté (treason).]
[4. ][Ed.: It is requisite to penetrate the ‘thing’ (rem), and to emit and shed the seed of nature, (for the indictment is:) against the ordinance of the Creator and the order of nature, he had venery and carnal knowledge of the said boy.]
[5. ][Ed.: had [venery] and carnally knew.]
[6. ][Ed.: A pederast, a lover of boys.]
[1. ][Ed.: In Law.]
[2. ][Ed.: As a matter of fact,]
[3. ][Ed.: In contempt and prejudice of the lord king, and to the harm and manifest disinheritance of his said crown and dignity, and against the form of the Statute, etc.]
[4. ][Ed.: against the king’s crown and dignity.]
[5. ][Ed.: Bishops’ courts.]
[6. ][Ed.: Of the Roman Curia or elsewhere, etc.]
[7. ][Ed.: Provide with all their might.]
[8. ][Ed.: Against the crown and dignity, etc.]
[9. ][Ed.: Against the royal crown and dignity, etc.]
[10. ][Ed.: into another forum.]
[11. ][Ed.: Against the royal crown and dignity.]
[12. ][Ed.: Coppice-wood.]
[13. ][Ed.: Into another forum.]
[14. ][Ed.: That whereas pleas, plaints and possessions [sic ] of lands and tenements, trespasses, debts, and other such like, within the realm of England, belong especially to the lord king and his royal crown and dignities and not to the ecclesiastical court, a certain J.[A.], etc., scheming to disinherit the lord king and his crown and dignities, and to draw the cognizance which belongs to the king’s court into another forum within his realm of England, [exhibited] a certain article in court Christian before A. W., official, etc., to sue the selfsame R. in the same court Christian before the said official for a debt of twenty pounds, and [caused] the said R. to be cited in the same court to answer the said J. A. therein, etc.]
[15. ][Ed.: The cognizance of the cause, which belongs to the lord king’s court, into another forum.]
[16. ][Ed.: That said cardinal intended to complete, undermine, and subvert the most ancient laws of England, and to subject and subdue this whole realm of England and the people of this same England to imperial law, commonly called civil law, and to the canons of this law.]
[17. ][Ed.: In another forum.]
[18. ][Ed.: From that time.]
[19. ][Ed.: For the salvation of his soul,]
[20. ][Ed.: By word.]
[21. ][Ed.: Against the royal crown and dignity,]
[22. ][Ed.: In the Roman Curia or elsewhere;]
[23. ][Ed.: According to the will of the king, etc.]
[1. ][Ed.: Provided there is no litigation concerning the authority and validity of the letters patent for ecclesiastical causes directed to you or any of you, or concerning the exposition and interpretation of the Statute of the first year of the late queen, etc.]
[2. ][Ed.: To amplify their jurisdiction:]
[3. ][Ed.: When an ecclesiastical Judge receives a prohibition from the King, he ought to stop in every Case until it has been decided in the King’s court to whom the jurisdiction belongs; because if the ecclesiastical Judge should consider whether the jurisdiction is his, he would in every Case proceed indifferently, without regard to the royal prohibition,]
[4. ][Ed.: That they should not proceed in court Christian until it has been decided in our court whether cognizance of that plea belongs to our court or to the ecclesiastical jurisdiction.]
[5. ][Ed.: For breach of faith,]
[6. ][Ed.: And so long as there is no litigation concerning any slanders, contempts, or other things, which are to be punished and determined at Common Law or by the Statutes of our realm of England.]
[7. ][Ed.: That it is not consonant with Law that anyone should be drawn into plea in court Christian for other things which are litigated in our courts and the cognizance whereof belongs to us.]
[8. ][Ed.: With respect to schismatic beliefs, heresies, and enormous impiety or pernicious opinion in the Christian religion, faith or doctrine, aspiously and whole somely established within our realm of England, the cognizance where of belongs to the ecclesiastical jurisdiction, etc.]
[9. ][Ed.: On the Thursday after the feast of Michaelmas.]
[10. ][Ed.: And the same Philip, knowing that a certain Margaret, wife of John Aldwin, had many times before then at Greenwich, within the jurisdiction of the aforesaid leet, corruptly used her body in adultery, and wishing Lawfully to punish the selfsame Margaret for the common good, as an example to others wishing to offend in such manner, personally exhibited to the samegr and Jury and truthfully gave instruction and information to the same jurors concerning the said evil and vicious life of the said Margaret.]
[11. ][Ed.: in these English words;]
[12. ][Ed.: That by the Laws of this realm of England all and singular the lord king’s subjects whatsoever, being sworn in a Jury of the country before whatsoever Justices of the selfsame lord king, or any other man whatsoever performing a secular judicial office, or appearing and giving evidence for the instruction or information of any such juries, ought to be quit and free from any charge or accusation made in any court Christian on that account, and utterly blameless for ever.]
[13. ][Ed.: With respect to.]
[14. ][Ed.: A rare bird in the land, like a black swan.]
[15. ]Articuli Cleri c. 8.
[16. ]Entries 444–447.
[17. ]Circumspecte agatis, &c.
[18. ]West. 2. cap. 43.
[19. ][Ed.: which are found scattered in our Books:
[21. ][Ed.: have a Writ of Habeas Corpus (or be released) and it was granted.]
[1. ][Ed.: Writ determining the legality of an incarceration.]
[2. ][Ed.: mine and thine, (i.e. matters of property).]
[* ]The original pleadings in this case may be found at 5 Jac. Rot. 2254.
[1. ][Ed.: The warden of the lord king’s prison of the Fleet was commanded that he have here, that is to say, at Westminster, immediately after the receipt of this writ, the body of Anthony Roper, knight, detained in the aforesaid prison in his custody, by whatever name he should be known, together with the day and the cause of the taking and detention of the same Anthony, (so that) the same Justices here, having seen the cause, shall do further whatever by right and according to the Law and custom of the lord king’s realm of England should be done. And now here at this day, namely the Saturday next after the octaves of Michaelmas this same term, the aforesaid Anthony comes in his own person, being (led) to the bar here in the custody of the aforesaid warden; and the same warden then sent word here that before the arrival of the aforesaid writ, namely on the ninth day of October last past, the aforesaid Anthony Roper, knight, brought himself to the aforesaid prison, having been previously committed by virtue of a certain warrant dated the thirtieth day of June last past, which follows in these words, that is to say, to wit:]
[2. ][Ed.: And that this was the cause of the taking and detention of the aforesaid Anthony in the aforesaid prison; nevertheless he now has here ready the body of the aforesaid Anthony, as he was commanded by the aforesaid writ, etc. Whereupon, the premises having been seen and fully examined and understood by the Justices here, it seems to the same Justices here that the aforesaid cause of the committal of the aforesaid Anthony to the prison of the Fleet aforesaid as specified above in the aforesaid return is insufficient in Law to detain the aforesaid Anthony in the aforesaid prison. Therefore the aforesaid Anthony is dismissed from the aforesaid prison by the court here, and the same warden fully discharged by the same court here from such custody, etc.]
[* ]There is a most unusual degree of variation among the editions for this report. The text of the 1656 edition is reproduced here. The 1826 report being so much fuller, it is reproduced in whole in the note ** below.
[1. ][Ed.: according to all the judges]
[2. ][Ed.: for burning a heretic;]
[3. ][Ed.: At a council at Oxford a certain deacon was convicted of heresy, but first he was degraded by the Ordinary:]
[4. ][Ed.: For the salvation of his soul,]
[5. ][Ed.: Two eyes can see better than one,]
[6. ][Ed.: [Who are only] commanded.]
[7. ][Ed.: All within the fold,]
[8. ][Ed.: investigate the matter.]
[1. ][Ed.: Married woman.]
[2. ][Ed.: But when such plea is pending, etc.]
[3. ][Ed.: While the aforesaid plea was depending,]
[4. ][Ed.: Writ to prohibit a bishop from admitting a clerk to contested benefice or other office.]
[5. ][Ed.: Writ to recover a presentment, or right to appoint a clerk to benefice or advowson.]
[6. ][Ed.: Common pleas shall not follow our court,]
[7. ][Ed.: Which was granted, etc.]
[8. ][Ed.: We command that you inhibit, etc.]
[9. ][Ed.: Writ staying the proceedings of an inferior court.]
[10. ][Ed.: therefore.]
[11. ][Ed.: He who has jurisdiction to absolve, has jurisdiction to bind:]
[12. ][Ed.: We prohibit you.]
[13. ][Ed.: That you surcease in the aforesaid plea.]
[14. ][Ed.: Because it is returnable.]
[15. ][Ed.: Writ of general summons, not restricted to service in one place.]
[16. ][Ed.: Spoil or waste by a life Tenant to the determine of the reversioner or remainderman.]
[17. ][Ed.: literally, “In going, remaining or returning,” a privilege from arrest for debt.]
[18. ][Ed.: so much the more so,]
[19. ][Ed.: a wrong as a result of prohibition . . . a wrong in itself, whereof the court wishes to be told and informed.]
[20. ][Ed.: why he did not admit (apparently a heading in Kelway).]
[21. ][Ed.: Prohibition upon the articles.]
[22. ][Ed.: that is to say, before our Justices at Westminster.]
[23. ][Ed.: Put on the register before our Justices at Westminster.]
[1. ][Ed.: by the whole court,]
[2. ][Ed.: Whatever someone does to protect his body, is deemed to be done rightfully,]
[3. ][Ed.: Of his own wrong without such cause:]
[4. ][Ed.: In order to lighten the load,]
[5. ][Ed.: It is in the interest of the common weal that men should be saved.]
[6. ][Ed.: For the public good; and the preservation of a man’s life is a public good.]
[7. ][Ed.: In order to lighten the ship,]
[1. ][Ed.: Therefore it is decided by the court,]
[2. ]2 Ric. 3. 9. 21 Hen. 7. 8.
[3. ][Ed.: in the way of judgment.]
[4. ][Ed.: By the court.]
[5. ]17 Hen. 6. 14. 39 Edw. 3. 14.
[6. ][Ed.: Judgments given in the king’s courts shall not be annulled (elsewhere), but a judgment shall stand in its force until (it is annulled) by judgment of the king’s court as erroneous, etc. See Westminster II, ch. 5. See the Statute of Marlborough, ch. 1: It is provided and agreed, and granted, that both great and small should have and receive Justice in the king’s court. And see the Statute of Magna Carta.]
[7. ][Ed.: out of the rolls of parliament in the Tower.]
[8. ][Ed.: The king ought not to be under any man, but under God and the Law.]
[* ][Note (in 1703 edition), Bracton and Fleta both affirm, Rex libert superiore in regno Deum et legem. Item curiam suam, i.e. comites et barones, &c.]
[1. ][Ed.: The king and queen, etc. to Edward Nevil of Aburgaveney, knight. Because, by the advice and consent of our council, we have ordained our certain parliament to be held at Westminster on the twenty-first day of October next coming, for certain arduous and urgent business concerning the estate and defence of our realm of England, there to have discussion and treaty with you and with the prelates, great men and peers of our said realm: we, firmly enjoining, command you upon the faith and allegiance which you bear unto us that, considering the arduousness and imminent dangers of the said business, that you, leaving aside all excuses whatsoever, be there personally at the said day and place, with us and with the prelates, great men and peers mentioned above, to treat and give your advice upon the said business, and this as you, etc.]
[2. ][Ed.: Writ staying proceedings in a lower court.]
[3. ][Ed.: Among the peers of the realm,]
[4. ][Ed.: Just as senators were once chosen for their wealth, so amongst us there were barons who held their lands by a whole barony, or thirteen knight’s fees and the third part of a knight’s fee, each fee being reckoned at twenty pounds, which makes four hundred marks and one penny to be the value of one whole barony; and whoever had lands and rents to this value was usually summoned to parliament.]
[5. ][Ed.: with one voice.]
[6. ][Ed.: on the country, or unsworn.]
[7. ][Ed.: Henry III, after the great disturbances and enormous accusations moved and begun between the selfsame king, Simon de Montfort, and other barons, enacted and ordained that all those earls and barons of the realm of England to whom the selfsame king thinks it worthy to direct writs of summons shall come to the parliament, and no others, unless the lord king will direct other writs to them:]
[1. ][Ed.: Those born before marriage were bastards, because the Church regards them as legitimate; and all the bishops asked the great men whether they would consent that those who were born before marriage should be legitimate,]
[2. ][Ed.: And all the earls and barons answered with once voice, “We will not change the Laws of England which have until now been used and approved.”]
[3. ][Ed.: The king’s prohibition that the clergy in their convocation, etc. should not attempt anything against his right or crown. And another, that they make no enactment in their council in prejudice of the king or the Law, etc.]
[1. ][Ed.: It requires a long time to deliberate concerning something which is laid down in an instant;]
[2. ][Ed.: It is better to run back than to keep running astray;]
[3. ][Ed.: Against the Laws and Statutes;]
[4. ][Ed.: Against the royal proclamation.]
[5. ][Ed.: Where there is no Law, there is no trespass; therefore,]
[6. ][Ed.: Against the Law and custom of England.]
[7. ][Ed.: Against the Laws and Statutes, etc.]
[8. ][Ed.: Against the royal proclamation, etc.]
[9. ][Ed.: Whatever is brought in contrary to the reason of the Law ought not to be treated with consequence.]
[10. ][Ed.: Until the next parliament,]
[11. ][Ed.: A wrong is either wrong in itself, or a wrong by reason of [statutory] prohibition,]
[12. ][Ed.: a wrong in itself; a wrong by reason of prohibition.]
[1. ][Ed.: Writ to ascertain the legality of an incarceration.]
[2. ][Ed.: I, William Pope, marshal of the supreme court of Admiralty of England, certify unto the lords Justices of our most serene queen specified in the writ annexed to this schedule that the within-named Theodore Thomlinson was taken and committed to my custody, before the arrival of this writ, forasmuch as the said Theodore Thomlinson was constrained by the bond of an oath to answer before the Judge of the Admiralty of England upon certain articles given against him in the same court, etc. on pain of five pounds, etc., and contemptuously refused to undergo his examination. Whereupon, etc.]
[1. ][Ed.: on the face of it,]
[1. ]Hollingshead, 11 Edw. 4 694. Stow. 701.
[2. ]Stow 880.
[3. ][Ed.: which note well, because, etc.]
[* ]There is a most unusual degree of variation among the editions for this report. The text of the 1656 edition is reproduced here. The 1826 report being so much fuller, it is reproduced in whole in the note ** below.
[**]The 1826 edition provides:The archbishop and other bishops, and other the clergy, at a general synod or convocation mightconvict a heretic by the Common Law. But for this, that it was troublesome to call a convocation of the whole province, it was ordained by the Statute of 2 Hen. 4. cap. 15. that every bishop in his diocese might convict heretics; and, note, 2 Mary Brook, title Heresy, per omnes justic’,1
[Ed.: according to all the judges]
[Ed.: for burning a heretic;]
[Ed.: In the council of Oxford a certain deacon was convicted of apostasy, but first he was degraded [from his orders] by the ordinary:]
[Ed.: for the salvation of his soul,]
[Ed.: At the pleasure of the king.]
[Ed.: We, wishing the said accords or ordinances to be inviolably observed in all and singular their points, command you that you publicly proclaim the aforesaid accords and ordinances in those places within your bailiwick where you think fit, both within liberties and without, and cause them to be kept according to the aforementioned form. Witness the king at Westminster on the twenty-sixth day of May in the fifth year the reign of King Richard II.]
[Ed.:  that it is not meritorious to make pilgrimages to St. Thomas or to St. Mary of Walsingham; (2) nor to adore images of the crucifix and of other saints; (3) no priests to be allowed except by God alone, etc.]
[Ed.: The tribune of the people interrogating.]