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.

Premunire.

(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 |[38] 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 |[39] 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, |[40] 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 |[41] 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

[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.]