Front Page Titles (by Subject) Prohibitions. - Selected Writings of Sir Edward Coke, vol. I
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Prohibitions. - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. I 
The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 1.
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(1609) Hilary Term, 6 James I
In Conference before the King.
First Published in the Reports, volume 13, page 30.
Ed.: These are Coke’s notes of another conference in which he defended the prohibitions issued against the local court held by the Lord President of York, only one term after his last conference. Coke chronicles typical prohibitions to the King’s satisfaction. See De Modo Decimandi, p. 505.
Upon Wednesday, being Ashwednesday, the day of February, 1606. A great Complaint was made by the President of York unto the King, That the Judges of the Common Law had, in contempt of the Command of the King the last Term, granted sixty or fifty Prohibitions at the least out of the Common-Pleas, to the President and Councel of York after the sixth day of February, and named three in particular, (scil.) between Bell and Thawptes, another between Snell and Huet, and another in an Information of a Riotous Rescue preferred by English Bill by the Attorney General against Christopher Dickenson, one of the Sheriffs of York, and divers others, in rescuing of one William Watson out of the Custody of the Deputy of one of the Pursuivants of the same Councel who had arrested the said Watson by force of a Commission of Rebellion awarded by the President and Councel, which Prohibition in the said Information was (as was affirmed) denyed upon a motion made in the Kings Bench the last Term, and yet granted by us. And the King sent for me to answer to that Complaint: and I onely, all the rest of the Justices being absent, waited upon the King in the Chamber neer the Gallery; Who, in the presence of Egerton Lord Chancellor, the Earl of Salisbury Lord Treasurer, the Lord of Northampton Lord Privy Seal, the Earl of Suffolk Lord Chamberlain, the Earl of Worcester, the Archbishop of Canterbury, the Lord Wotton, and others of his Councel, rehearsed to me the Complaint aforesaid: and I perceived well, that upon the | said Information he had conceived great displeasure against the Judges of the Common Pleas, and chiefly against me; To which I (having the Copy of the Complaint sent tome by the Lord Treasurer the Sabbath day before) answered in this manner, That I had, with as much brevity as the time would permit, made search in the Offices of the Preignothories of the Common Pleas: and as to the said Cases between Bell and Thawptes, and Snell and Huet, no such could be found: but my intent was not to take advantage of a Misprisal: and the truth was, that the sixth day of February the Court of Common Pleas had granted a Prohibition to the President and Councel of York, between Lock Plaintiff, and Bell and others Defendants: and that was, a Replevyn in English was granted by the said President and Councel, which I affirmed was utterly against Law: For at the Common Law no Replevyn ought to be made, but by Original Writ directed to the Sheriff. And the Statute of Marlbridg cap. 21. and West. 1. cap. 17. hath authorized the Sheriff upon Plaint made to him, to make a Replevyn; and all that appeareth by the said Statutes, and by the Books of 29 Edw. 3. 21. 8 Eliz. Dyer 245. And the King neither by his Instructions had made the President and Councel Sheriffs, nor could grant to them power to make a Replevyn against the Law, nor against the said Acts of Parliament; but the same ought to be made by the Sheriff. And all that was affirmed by the Lord Chancellor for very good Law: And I say, that it might well be that we have granted other Prohibitions in other Cases of English Replevyns. Another Prohibition I confess we have granted between Sir Bethel Knight, now Sheriff of the County of York, as Executor to one Stephenson, who had made him and another his Executors, and preferred an English Bill against Chambers, and divers others in the nature of an Action upon the Case, upon a Trover and Conversion in the life of the Testator of goods and Chattels, to the value of 1000 l. and because the other Executor would not joyn with him, although he was named in the Bill, he had not any remedy at the Common Law, he prayed remedy there in Equity: and I say, that the President and Councel have not any authority to proceed in that Case, for divers causes.
1. Because there is an express limitation in their Commission, that they shall not hold plea between party and party &c. unless both parties, or one of them, tanta paupertate sunt gravati,1 that they cannot sue at the Common Law: and in that case the Plaintiff was a Knight, and Sheriff, and a man of great ability.
2. By that Suit the King was deceived of his Fine, for he ought to have had 200 l. Fine, because that the damages amounted to 4000 l. and that was one of the causes that the Sheriff began his Suit there, and not at the Common Law: another cause was, that their Decrees which they take upon them are final and uncontroulable, either by Error, or any other remedy. And yet the President is a Nobleman, but not learned in the Law; and those which are of the Councel there, although that they have the countenance of Law, yet they are not learned in the Law; and nevertheless they take upon them final and uncontroulable Decrees in matters of great importance: For if they may deny Relief to any at their pleasure without controulment, so they may do it by their final Decrees without Error, Appeal, or other remedy: which is not so in the Kings Courts where there are five Judges; for they can deny Justice to none who hath Right, nor give any Judgment, but the same is controulable by a Writ of Error, &c. | And if we shall not grant Prohibitions in Cases where they hold Plea without authority, then the subjects shall be wrongfully oppressed without Law, and we denyed to do them Justice: And their ignorance in the Law appeared by their allowance of that Suit, scil. That the one Executor had no remedy by the Common Law, because the other would not joyn in suit with him at the Common Law: whereas every one learned in the Law knoweth, that summons and severance lieth in any Suit brought as Executors: and this also in that particular Case was affirmed by the Lord Chancellor; and he much inveighed against Actions brought there upon Trover and Conversion, and said, that they could not be found in our ancient Books.
Another Prohibition I confess we have granted, between the L. Wharton, who by English Bill sued before the Councel, Banks, Buttermere, and others, for fishing in his several Fishings in Darwent in the County of C. in the nature of an Action of Trespass at the Common Law, to his damage of 200 l. and for the causes next before recited, and because the same was meerly determinable at the Common Law, we granted a Prohibition, and that also was allowed by the Lord Chancellor. And as to the case of Information upon the Riotous Rescous, I having forgotten to speak to that, the King himself asked what the Case was? to whom I answered, that the case was, That one exhibited a Bill there in the nature of an Action of Debt, upon a Mutuatus2 against Watson, who upon his Oath affirmed, that he had satisfied the Plaintiff, and that he owed him nothing, and yet because the Defendant did not deny the Debt, the Councel decreed the same against him, and upon that Decree the Pursuivant was sent to arrest the said Watson, who arrested him upon which the Rescous was made: and because that the Suit was in the nature of an Action of Debt upon a Mutuatus at the Common Law, and the Defendant at the Common Law might have waged his Law, of which the Defendant ought not to be barred by that English Bill, quia beneficium juris nemini est auferendum:3 the Prohibition was granted; and that was affirmed also by the Lord Chancellor: whereupon I concluded, that if the principal cause doth not belong unto them, all their proceedings was coram non Judice,4 and then no Rescous could be done: but the Lord Chancellor said, that though the same cannot be a Rescous, yet it was a Riot, which might be punished there: which I denyed, unless it were by course of Law by force of a Commission of Oyer and Terminer, and not by an English Bill: but to give the King full satisfaction in that point, the truth is, the said Case was debated in Court, and the Court inclined to grant a Prohibition in the said case; but the same was stayed to be better advised upon, so as no Prohibition was ever under Seal in the said Case.
Also I confess, that we have granted divers Prohibitions to stay Suits there by English Bill upon penal Statutes: for the manner of prosecution, as well for the Action, Proces, &c. as for the count, is to be pursued, and cannot be altered; and therefore without question the Councel in such cases cannot hold Plea, which was also affirmed by the Lord Chancellor. And I said, that it was resolved in the Reign of Queen Eliz. in Parots Case, and now lately in the Case of the President and Councel of Wales, That no Court of Equity can be erected at this day without Act of Parliament, for the reasons and causes in the Report of the said Case of Parot.
And the King was well satisfied with these reasons and causes of | our proceedings, who of his Grace gave me his Royall hand, and I departed from thence in his favour. And the surmise of the Number, and that the Prohibition in the said Case in the Information was denied in the Kings Bench, was utterly denied: for the same was moved when two Judges were in Court, who gave not any opinion therein, but required Serjeant Hutton who moved it, to move the same again when the Court was full, &c.
[1. ][Ed.: are grieved with such poverty,]
[2. ][Ed.: Action to collect a debt not much under seal.]
[3. ][Ed.: because the benefit of the Law is not to be taken away from anyone:]
[4. ][Ed.: beyond its jurisdiction,]