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.

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 |[46] 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, |[47] 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.

[1. ][Ed.: Writ determining the legality of an incarceration.]

[2. ][Ed.: mine and thine, (i.e. matters of property).]