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.

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.

|[42] 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|[43] 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: |[44] 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

Non concedantur citationes priusquam exprimatur super qua re fieri debet citatio.19 ,20

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.

[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:

That which appears necessary for the king and the common weal ought not to be said to tend to the prejudice of the liberty of the Church.

It is not consonant with Law that someone should be drawn in plea in court Christian upon matters whereof the cognizance belongs to us.

A bishop holds plea in court Christian concerning those things that are purely spiritual.

It is forbidden that from henceforth the Hospitallers and Templars should draw anyone in plea before the conservators of their privileges in respect of any matter whereof the cognizance belongs to the royal jurisdiction.

Citations shall not be granted until the matter upon which the citation is to be granted has been expressed.]

[20. ]Ibidem.

[21. ][Ed.: have a Writ of Habeas Corpus (or be released) and it was granted.]