The Online Library of Liberty

A project of Liberty Fund, Inc.

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

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 |[24] 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 |[25] 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 |[26] 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

[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.]