The Online Library of Liberty

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

Of Pardons.

(1607) Trinity Term, 5* James I.

Commentary.

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, |[30] 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.

Note, no licence can be made to do any thing that is malum in se,6 but malum prohibitum7 may. 11 Hen. 7. 11. 3 Hen. 7. 39 Hen. 6. 39.

[* ][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.]