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.

The Lord Aburgaveney’s Case.

In the Parliament.

First Published in the Reports, volume 12, page 70.

Ed.: This is a note of a judicial conference which resolved a questionreferred to it by members of the House of Lords, whether a man is made a baron or noble on the making of a writ, the delivery of the writ, or being seated in Parliament by command of the writ. The Judges rule that he must sit, although the ennoblement of a baron created by the king by letters patent under the Great Seal is created once the letters are made. This Case fore-shadows some of the technical problems at the heart of the later U.S. Case of Marbury v. Madison.

The Writ doth not make a Peere, &c.In the Parliament a question was made by the Lord of Northampton, Lord privy Seale, in the upper house of Parliament; That one Edward Nevil, the father of Edward Nevil, Lord of Aburgaveney, which now is, in the 2, and 3. of Queen Mary, was called by Writ to Parliament, and died before the Parliament: If he was a Baron, or no, and so ought to be named, was the question; and it was resolved by the Lord Chancellor, the two chief Justices, chief Baron, and divers other Justices there present, that the direction and delivery of the Writ did not make a Baron or Noble, until he did come to the Parliament, and there sit, according to the commandment of the Writ, for until that, the Writ did not take its effect, & the words of the Writ were wel penned, which are, Rex & Regina, &c. Edwardo Nevil de Aburgaveny Chivalier, quia de advisamento & assensu consilii nostri pro quibusdam arduis, & urgentibus negotiis statum & defensionem regni nostri Angliae concernentibus, quoddam Parliamentum nostrum apud Westmonasterium, 21 die Octobris proximo futuro teneri ordinavimus, & ibidem vobiscum, ac cum Praelatis, Magnatibus & Proceribus dicti regni nostri colloquium habere & tractatum: vobis in fide & Ligeantia, quibus nobis tenemini, firmiter jungendo mandamus, quod consideratis dictorum negotiorum arduitate & periculis iminentibus, cessante excusatione quacunque, dictis die & loco personaliter intersitis nobiscum, ac cum Praelatis, Magnatibus ac Proceribus supradictis, super dictis negotiis tractaturis, vestrumque consilium impensur. & hoc sicut nobis, &c.1 And in the 35 Hen. 6. 46. and other Books, he is called a Peer of Parliament, the which he cannot be until he sit in Parliament, and he cannot be of the Parliament until the Parliament begin: And forasmuch as he hath been made a Peer of Parliament by Writ (by which implicitly he is a Baron) the Writ hath not its operation and effect, until he sit in Parliament, there to consult with the King and the other Nobles of the Realm; which command of the King by his Supersedeas2 may be countermanded, or the said Edward Nevil might have excused himself to the King, or he might have waived it, and submitted himself to his Fine, as one who is destrained to be a Knight, or one learned in the Law is called to be a Serjeant, the Writ cannot make him a Knight, or a Serjeant; And when one is called by Writ to Parliament, the order is, that he be apparrelled in his Parliament Robes, and his Writ is openly read in the upper house, and he is brought into his place by two Lords of Parliament, and then he is adjudged in Law, Inter pares Regni,3 that is to say, Ut cum olim Senatores e censu eligebantur, sic Barones apud nos habiti fuerint, qui per integram Baroniam terras suas tenebant, sive 13. feoda militum, & tertiam partem unius Feodi militis, quolibet Feodo computato ad 20 l. quae faciunt 400 marcas denarii erat valentia unius Baroniae integrae, & qui terras & redditus ad hanc valentiam habuerint, ad Parliamentum summoniri solebant;4 So that by this it appears, that every one who hath an entire Barony may have of right and of course a Writ to be summoned to Parliament, for without Writ none can sit in Parliament: And with this agrees our Books, for Una voce5 they agree, that none can sit in Parliament as Peer of the Realm, without matter of Record, and if Issue be taken, whether a Baron or no Baron, Earl or no earl, this shall not be tryed per paiis,6 but by the Record, by which it appears, that he was a Peer of Parliament, for without matter of Record he cannot be a peer of Parliament, |[71] 35 Hen. 6. 46. 48 Edw. 3. 30 b. 48 Ass. pl. 6. 22 Ass. pl. 24. Register, 287. Henricus tertius post magnas perturbationes & enormes exactiones inter ipsum Regem, Simonem de Monte forti, & alios Barones motas & susceptas, statuit & ordinavit, quod omnes illi Comites & Barones regni Angliae, quibus ipse Rex dignatus est brevia summonitionis dirigere, venirent ad Parliamentum, & non alii nisi forte dominus Rex alia illa brevia eis dirigere voluisset:7 Which Act or Statute continues in force to this day, so that now none, although that he hath an entire Barony, can have a Writ of Summons to Parliament without the King’s Warrant, under the privy Seal at least.

But if the King create any Baron by Letters Patents under the great Seal to him and to his Heirs, or to him and to his Heirs of his body, or for life, &c. there he is a noble man presently, for so he is expressly created by Letters Patents of the King, which cannot be countermanded: And he ought to have a Writ of Summons to Parliament of right and of course, and he shall be tryed by his Peers, if he shall be arraigned before any Parliament, but so shall not he be who is called by Writ, until he sits in Parliament, which is the diversity.

Richard the second created John Beauchamp of Holt, Baron of Kidderminster, by Letters Patents, dated 10. Oct. 11. year of his Raign, where all others before him were created by Writ.

[1. ][Ed.: The king and queen, etc. to Edward Nevil of Aburgaveney, knight. Because, by the advice and consent of our council, we have ordained our certain parliament to be held at Westminster on the twenty-first day of October next coming, for certain arduous and urgent business concerning the estate and defence of our realm of England, there to have discussion and treaty with you and with the prelates, great men and peers of our said realm: we, firmly enjoining, command you upon the faith and allegiance which you bear unto us that, considering the arduousness and imminent dangers of the said business, that you, leaving aside all excuses whatsoever, be there personally at the said day and place, with us and with the prelates, great men and peers mentioned above, to treat and give your advice upon the said business, and this as you, etc.]

[2. ][Ed.: Writ staying proceedings in a lower court.]

[3. ][Ed.: Among the peers of the realm,]

[4. ][Ed.: Just as senators were once chosen for their wealth, so amongst us there were barons who held their lands by a whole barony, or thirteen knight’s fees and the third part of a knight’s fee, each fee being reckoned at twenty pounds, which makes four hundred marks and one penny to be the value of one whole barony; and whoever had lands and rents to this value was usually summoned to parliament.]

[5. ][Ed.: with one voice.]

[6. ][Ed.: on the country, or unsworn.]

[7. ][Ed.: Henry III, after the great disturbances and enormous accusations moved and begun between the selfsame king, Simon de Montfort, and other barons, enacted and ordained that all those earls and barons of the realm of England to whom the selfsame king thinks it worthy to direct writs of summons shall come to the parliament, and no others, unless the lord king will direct other writs to them:]