B. 1621
Petition of Grievances; Privileges of Parliament; Impeachments
The parliament of 1621 was the first in which Coke was clearly in opposition to the legislative agenda of the King. Increasingly faced with evidence of the King’s contempt for parliamentary responsibility and increasingly opposed to national policies pursued by Buckingham in the King’s name, Coke worked to tie the passing of the Bill for Supply, or the King’s request for Commons to grant him tax funds, to a petition for grievances against Parliament’s privileges. Coke presented a defense of Parliament based on Magna Carta. The argument between King and Commons for the upper hand took several forms. James I suggested Parliament be suspended from May to November, which Coke opposed as an act against Parliament’s privileges to decide its own adjournment (although the King could dismiss it). Coke succeeded in having a royal commission requiring adjournment of Commons from being read, after which a majority of the House voted to adjourn. Coke moved resolutions to the King advising him against a Spanish marriage and alliance with Spain, after which James ordered the House not to discuss such matters and denied the members any privileges by right. Coke authored a protestation arguing for the liberties of Parliament, including parliamentarians’ freedom of speech as “the ancient and undoubted birthright and inheritance of the subjects of England.”
Coke led or assisted in several impeachments, including one of a parliamentarian named Sheppard, who argued flippantly against a Puritan-sponsored bill to bar dancing on the Sabbath, which he held should be Saturday. More significantly, Coke assisted in impeachments of several officials for bribery, most notably, assisting in impeaching Francis Bacon on twenty-eight charges of misconduct as chancellor. Those changes consisted mainly of accepting gifts of money from litigants before him (although many of those donors lost their cases).
Coke supported bills for free trade and against monopolies. He also approved of the impeachment of two monopolists.
At the end of the 1621 parliament, James I sent Coke, John Selden, William Prynne, and other leaders of the opposition to the Tower. Coke’s house, Holborne, was sealed and his legal papers were seized. See Coke’s “Arrest after Parliament,” pp. 1329–1331.—Ed.
February 5, 1621.
Ed.: In a debate on the grant of a supply to the Kings the question was whether to tie the supply to conditions of parliamentary grievance.
Sir Edward Coke. “‘Virtus silere in convivio, vitium in consilio.’ I joy that all are bent with alacrity against the enemies of God and us; Jesuits,Seminaries, and Popish Catholics: it was a grievance complained of the 8th of this reign, that the laws against Recusants were not executed; I would have all those Grievances, 8 Jac. reviewed, of which that was one; if any new increased to take special consideration of them. I and Popham were 30 days in examination of the Powder-Plot at the Tower. The root of it was out of all the countries belonging to the Pope, and Faux repented him that he had not done it. God then, and in 1588, delivered us for religion’s sake.—The privileges of the house concern the whole kingdom; which, like a circle ends where it began. But take heed, we lose not our liberties, by petitioning for liberty to treat of Grievances, &c. No proclamation can be of force against an act of parl. In Edw. IIId.’s time, a parl. was holden every year, that the people might complain of Grievances. If a proclamation comes against this; the law is to be obeyed and not the proclamation. The 4th Hen. VIII. Strowde moved against the Stannary court: but was fined after the parl. and imprisoned by the steward of the Stannary. Thereupon, a law ensued, for freedom of speech in the house; but it ought to be done in due and orderly manner. My motion is, that the Grievances may be set down; those that are nought in radice, or tractu temporis, first. The king’s ordinary Charge and Expences much about one; the extraordinary ever born by the subject; therefore the king can be no beggar. And, if all the corn be brought to the right mill, I will venture my whole estate, that the king’s will defray his ordinary charges. Lastly, he moved for a committee of the whole house for Grievances; and said the remedying them would encourage the house, and enable them to increase the Supply.”—After this the question was put, Whether a Petition to the king for Freedom of Speech, against Recusants, the business of the Supply, and for Grievances, should be referred to a committee of the whole house? And it was resolved to go upon them that afternoon.
February 7, 1621.
Ed.: In a debate on an alleged unlawful election of a member of the House, the question was whether the member should be allowed to speak on his own behalf.
Sir Edward Coke divides our laws into three parts: 1, common law; 2, custom; 3, statute law. A committee is a jury. The committee may examine for matter of fact and what they had done for the fact the House would not alter, but for matter in law or right the parliament might, after the committee, alter it.
February 13, 1621.
Ed.: In a debate on bills for limitations of suits, the question was whether the limitations should apply in the courts of equity.
Sir Edward Coke. I have motions to have some bills preferred. We had a bill for limitation of suits in all the courts of England, both temporal and ecclesiastical. I love the courts, yet I would have the suits limited within some time. I will rehearse two examples to shew the inconveniencies which do arise for want hereof. 1, Doctor Julio that was but an experimental physician at length became the Queen’s physician in ordinary.Buthiswifemustbedivorced after eighteen years (causa precontractus). But by whom. By old Stapleton that would make love to any woman. And then he married the fair lady he had begotten with child. But mark the judgment, the lady and the childdiedwithin a month. If this divorce had been limited this had never been. 2, Another example, there was a legacy given; long after the party challenged it but the witnesses were dead, whereas had he brought his suit in reasonable time it would have easily been decided. Therefore to have these suits limited within a certain time is that which I desire may be committed to the committees of the former bills of limitation of suits. Now if this like you, paulo maiora canamus. All courts are either temporal or ecclesiastical. Temporal are either of ordinary jurisdiction or extraordinary, of the common law or of equity. My meaning is not to limit the king, for nullum tempus occurrit regi. But in the courts of equity I would have the parties limited. It is good to deal openly and plainly. My Lord Chancellor hath power to proceed according to the common law. According to the common law subjects be limited already but not in equity. There is a great reason they should be limited there also, for if the King’s Bench which is coram domino rege be limited, why should not the Chancery. If a fine and recovery be passed, if a deed be enrolled, these are of record and may be had at any time after; yet they are limited. How much more should suits in Chancery, which have no writing to prove but oath of witness, which may die. So that if one bring witnesses to outswear me, my land is gone and yet there is no fault in the judge. I think this will be both plausible to the subject and acceptable to the judges who for want of this limitation are many times perplexed with these things.
February 15, 1621.
Ed.: In a debate to impeach Sheppard from Parliament, Coke agrees to Mr. Thomas Sheppard’s expulsion.
Sir Edward Coke. Whatsoever hindereth the observationofthesanctification of the Sabbath is against the scripture.
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Sir Edward Coke. That it is in religion as in other things, if a man go too much on the right hand, he goes to superstition, if too much on the left, to profaneness and atheism. And, take away reverence, you shall never have obedience: maxima charitas, facere justitiam. He wisheth to have such birds crushed in the shell: for, if it be permitted to speak against such as prefer bills, we should have none preferred.
February 17, 1621.
Ed.: In a debate on a bill for explanation of the statute 3 Jacobi, the question concerned the taking of recusant’s land for payment of debt.
Sir Eward Coke. I agree with that which was spoken last but yet let us husband time. It is good for a man in these days to take sureties and if one die, to put in another, for there is no trusting to executors in these days.Sureties bound jointly and severally are all principals. I would have a bill drawn which should give the creditor his debt and damages and the sureties should be secured only of the lands of the heir.
February 19, 1621.
In the Committee of Grievances
Ed.: In a debate on the patent for Inns, which would effectively allow local monopolies for inns to be granted by the crown, the question is whether the power to grant such patents is in the king’s prerogative.
Sir Edward Coke. There is prerogative indisputable, and prerogative disputable. Prerogative indisputable, is that the king hath to make war: disputable prerogative is tied to the laws of England; wherein the king also hath divers prerogatives as nullum tempus, &c. None of all these Monopolies but have fine examples. There are 3 sorts of patents. 1st. Directly against the law: 2d. good in law, but ill in execution: 3d. neither good in law nor execution. For the first, when the sword of justice, which the laws have trusted the king withal, is given to a subject; and the king saith in his Book, that all grants of Monopolies, and dispensations of penal laws are void in law: when the king granteth his power to a subject, the commonwealth rues for it; and of this kind are old debts. For remedy of this that a course be taken, that, if debts owing to the king are not called for within a time, then to be lost. Of the 2nd kind are Patents for Inns. A 3rd are those which are neither good in law nor execution; and these are concealments, which are dishonourable to the king, for no subject may do it; and indeed the king never knows of it, the sole fault whereof lies in the referrees; and for this a bill should be drawn, that if the king hath been out of possession 60 years, and not recovered any rent for it within that time, then not to be recovered by the king as a concealment. Monopolies are now grown like Hydras’ heads: they grow up as fast as they are cut off. All new offices raise the prices of things. In 4 Hen. 7. a dispensation was granted, that some should not pay Subsidies: this was after repealed by act of parl. for otherwise it would have grown so common, that no man would have paid, seeing others freed. He shewed that all the kings, from Edw. III. to this king have granted Monopolies; and, even in queen Elizabeth’s time, there were some granted. Sir Rd. Mompesson and one Rob. Alexander procured of queen Eliz. a Patent for the sole transporting of anise-seed. Monopolies have been granted heretofore de vento & sole; that in Devonshire and Cornwall a patent was granted, that none should dry pilchards but those patentees.
February 26, 1621.
Ed.: In a debate on the scarcity of money, the question was the causes of the lack of gold and silver coins throughout the kingdom.
Sir Edward Coke sheweth, that there were two things that principally concern and encrease kingdoms and commonwealths, viz. soldiers and money. That there was coined from the 1 Eliz. unto 16 Jac. nine millions and a half of silver and gold. Sheweth further, that there are 7 Causes of want of Money and Coin in this kingdom.—1. Money turned into plate.—2. Gold folia that is employed in gilding of things.—3. Change of Money, or silver being much undervalued by us here of that our gold is; which was raised; and so was not our silver, and also all our money passeth at lower rates here, than it doth beyond sea in other countries.—4. The East India Company, who had licence to transport 100,000 l. at their first setting up; and albeit they do not, since that time carry out of the kingdom any more English money, yet they intercept the dollars and other money that would otherwise come into this kingdom, and bring in for it nothing but toys and trifles.—5. The goods importedexceed the goods exported, and therefore there must needs go forth of our coin to pay for the surplusage.—6. The French merchants for wine carry forth 80,000 l. per ann. and bring in nothing but wines and lace, and such like trifles.—7. The Patent for Gold and Silver lace, which not only wastes and consumes our bullion and coin, but hindereth the bringing of any into the kingdom; which was wont to be so much as would yield 20,000 l. per ann. of good bullion.
March 1, 1621.
Ed.: In the proceedings against Sir Giles Mompesson, a Monopolist and Patentee, Coke made observations about men of six types of occupations.
Sir Edward Coke. There are in my observation 6 kinds of men, that never thrive or prosper. 1. Alchymist; for omne vertitur in fumum with him. 2. Monopolizer; for he engrosseth to himself what should be free for all men. 3. Promoter, who for the most part lives upon the spoil of poor men. 4. Concealment-monger, or he that gets Concealments. 5. Depopular, who turns all out of doors, and keeps none but a shepherd and his dog. 6. New Projector, who is lately started up.
March 8, 1621.
Conference with the Lords in the Painted Chamber
Ed.: In a debate concerning Sir Giles Mompesson and monopolies.
Sir Edward Coke. There is (you have heard) the public good pretended but a private intended. Then to have a proclamation to attend a private gain is a great grievance and a lamentable thing.
That which I shall say shall be distributed into four parts: 1, for clearing of, an adding to, the King’s honor; 2, for remedies of these things in time to come; 3, to shew precedents how such like cases have been censured and punished in former times; 4, to add a conclusion. I will not meddle with the King’s prerogative, which is twofold: 1, absolute, as to make war, coin money, etc.; 2, or in things that concern meum et tuum, and this may be disputed of in courts of parliament.
The King was careful to have prevented the grievances, as appears by his proclamation primo Jacobi and his Declaration set forth 8 Jacobi. If these had been observed, we had not been troubled. The King never granted any but he referred it, as you have heard. Further, the 12 Jacobi ex parte Regis, in the Exchequer, he granted a seal wherein he expressed himself thus: We, having a just care of our loving subjects, will not have our prerogative extended to private uses. Overflowing will make rivers lose their proper channels. It may be said that these patents were granted as rewards of former services, and is not praemium as necessary for good service as poena for evil service. Yes, but yet kings will not have any men serve them for reward and therefore when any such patents were granted they went in this form: ex mero motu et gratia speciali etc. 4 Hen. 4, there was a statute of bargain because many grants had passed without deliberation; it was ordained by the king that whosoever shall sue for any lands, he should be punished by the Council and disabled of the thing sued for; he was a wise and potent king and knew his revenue could not subsist if he gave way to such suits.
Now for remedies. 1, He that hath thus offended is in the king’s mercy and that all such patents be called in again. 5 Edward 3 the Commons complain that many persons about the king had got a commission to inquire of all things that belong to the king’s revenue. By the way, what persons were these to whom the king granted this? It is said it was granted to ribaulds. What are they? Ribaulds are such as always beg and never work. What do they with this commission? They by virtue hereof make writs, returns, inquisitions and get escheators to take possession and then the ribaulds sue to the king to have some of these things thus found granted unto them in the very same manner as Sir Giles Mompesson hath done. But the Commons desired that these commissions might be repealed and hereafter granted to men of account.
It’s necessary that some law be made for the time to come that no monopoly be granted, and they that procure any such may incur some great punishment, and this will kill the serpent in the egg.
Now for precedents. I remember Phaeton’s counsel to Icarus, altius egressus etc., and concludes medio tutissimus ibis. So if we go too high we may wrong the king’s prerogative; if too low, we betray our country. Therefore medio tutissimus ibis. How is that to go by precedents. I find then that inparliaments (besides the way of acts and petitions) there is a power of judicature or judicial proceedings and that in 4 sorts: 1, coram domino rege et magnatibus vel consilio suo; 2, coram magnatibus solis; 3, coram magnatibus et communitate; 4, coram communitate tantum. I will give several examples of these. First, coramdomino rege et magnatibus, in Edw. 1 time the Bishop of Coventry queritur de Hugone extraneo 10 Rich. 2, the Commons complained to the king and the Lords of a very great man called Michael de la Pole, then Lord Chancellor, for that he for his own private gain had suffered divers letters patents to pass in disherison of the crown and subverting courts of justice. 28 Hen. 6 (vel 8), there was a complaint against William, Duke of Suffolk, for that he procured from the king divers liberties in derogation of the common law; the justices in eyre did enquire of this.
Secondly coram magnatibus only, and there is a necessity in this because else justice will fall to the ground and the subject in some cases cannot be relieved. As, suppose a judgment be given for the king in the King’s Bench, there is no help for this but a writ of error which must be brought before the Lords in the Upper House of parliament. Now the king cannot be judge in his own case, therefore it must be judged by the Lords alone or not at all. Alice Pearce, 1 Rich. 2, was complained of to the Lords for preferring many suits in derogation of the common law and against the commonwealth. The Lords awarded imprisonment and banishment. 42 Edw. 3, John de la Lee, steward of the king’s house, kept a court in his chamber and sent pursuivants for men and imprisoned them. He was committed tothe Tower theretoremain till he had paid fine and ransom. 5 Edw. 3, William Ellis, a merchant of Yarmouth and farmer of the customs, under color hereof oppressed divers of the king’s subjects by exactions.
The Commons complained, the Lords awarded him to prison until he had made fine and ransom. 5 Edward 3, Richard Lyons, a merchant of London, a notable projector (he was well acquainted with divers Lords and promised great matters as all projectors do), was accused that by his solicitation he procured dispensations to carry staple commodities to other places than to the staple towns, contrary to the law; 2, that having taken the customs to enhance them, pretended the king’s gain but intended his own lucre; 3, that he devised such a new kind of money as would have robbed and overthrown the kingdom. This was a merchant indeed but for the horribleness of his fact he was sentenced: 1, to be sent to the Tower there to remain till he had made fine and ransom; 2, never to bear office; 3, never to come near the king nor his Council; 4, to be disfranchised of his liberty of London. John Peache, Anglice John Sin (conveniant rebus nomina saepe suis), was complained of for that he had gotten the sole selling of sweet wines. This sole selling sheweth it to be a plain monopoly; hereby the price was enhanced. He was committed to the Tower and paid fine and ransom. But some may say these be but poor fellows, shew an example of a great man. John, Lord Neville, who had a regiment in Britain, the Commons complained of him that under color of the king’s authority he had oppressed and impoverished the people. He was sentenced to the Tower and paid fine and ransom. All these in Edward the Third time.
3, Thirdly, coram magnatibus et communitate. William Lord Latimer (hath his name because he was interpreter betwixt the Britons and us), who was Lord Chamberlain, was accused that he was partaker with Richard Lyons in all his projects and was sentenced deeply, but the king pardoned him. The tenor of which pardon was thus: cum fidelis et dilectus noster etc., coram magnatibus et communitate regni indicatus fuit etc. I say the king pardoned him but it cost him six score thousand marks, 7 Rich. 2.
4, Coram communitate tantum. Arthur Hall wrote a book in derogation of the House of parliament. He was imprisoned in the Tower and fined, expelled the House and another chosen in his room, 23 Eliz. 28 Eliz., a simple and weak man (one somewhat frantic) gave vli. to a mayor to choose him burgess. The mayor was fined for it. 38 Hen. 8, in Brooke, if a burgess be made a mayor sedente parliamento, presently a new must be chosen for he is tied to another charge. Adam de Berry, Mayor of Calais and a captain, had been such an oppressor as that he was complained of, whereupon he fled. It was awarded his goods should be seized. That’s the parliamentary course. And thus I leave you to tread in the steps of your noble progenitors. Empson was hanged, but his offence was not so great as Sir Giles Mompesson’s. He indeed got a grant to dispense with penal laws according to his discretion and caused men to be endicted for riots and to be imprisoned and caused divers to be outlawed, so that the subjects being thereby vexed and terrified murmured in their hearts and were alienated from the King. Mompesson hath exceeded him in the like, at least succeeded him. See the fortune of it, Empson made one Mompesson his heir for so I find it. Mompesson, son of Empson.
It’s recorded in a book called the Mirror of Justices that King Allured called Alfred, anno 873, made an act to have 2 parliaments in one year. Edward the First made an ordinance to have one parliament in two years, and performed that. 4 Edward 3. for the redress of many mischiefs and grievances which daily encrease in the commonwealth, it was ordained that a parliament be held every year. In those days parliaments were accounted necessary every year. And is there not the same necessity still. The kingdom and commonwealth may be likened to a fair field and a pleasant garden, but if the field be not tilled and the garden often weeded, infaelix lolium et steriles nascuntur avenae. And all ill humors increase in the body and hurt the body if they be not purged, humores moti non remoti corpus laedunt. So likewise abuses and corruptions increase in the commonwealth. Therefore often parliaments are necessary that good laws may be made to prevent and punish them, ut poena ad paucos metus ad omnes perveniat. And we by daily experience find that of diseases to be true, quia non profertur cito contra mala sententia. Therefore the hearts of the sons of men is set on them to do them mischief.
March 14, 1621.
Ed.: In a debate concerning a bill on monopolies and dispensations.
Sir Edward Coke. All the Judges of England are all una voce, when the law gives the Crown a penalty he cannot grant the penalty to a private man, for it is inseparable and cannot be divided. We come to the Council Table where it is recorded by the Council, who confirmed it and liked it very well, that there should be no sole selling. No law can be equal to all countries and cannot be granted to a private man. The sole buying and selling of anything and sole importation and exportation is a monopoly. Sir Richard Mompesson, sole importation of upon a quo warranto was judged a monopoly. Another, for sole importation of stone pots was likewise judged a monopoly, and likewise exportation. And for the parliament, who denies that it is a court of record at Westminster.
March 15, 1621.
Ed.: Following a debate on whether a member of the House can protect a bankrupt, Coke reports his conference with the Lords in which he discussed the King’s power over the penal laws.
Sir Edward Coke, according to an order being to go up to the Lords to carry the heads of the conference unto them, returning made this report. First, to prevent that this sending of the heads in writing might not be made aprecedent against us to do the like hereafter, I told them then when the Commons sought conference with their Lordships it hath been always verbal and upon the Lords’ report it was entered in their Journal. Yet because it was requested by them, whom we had found so ready and kind to us in the said conference and the rather for that it stood upon so many particulars as that the best memory could scarce carry them away, we have condescended unto them.
I proceeded to shew what good ground the King had for saying in his Book of Declaration of his royal pleasure that monopolies and dispensations ofpenal laws were against law. For the Judges 2° Jacobi took it into deliberation three days, looked into their books and precedents, whereupon having resolved they signified their resolutions in writing to the Lords of the Council that the taking of forfeitures of the penal laws was an inseparable prerogative of the Crown not to be imparted to any. Their reasons were: first, because those laws were made pro bono publico. If a private person have the forfeiture it will be pro privato. Secondly, the King is pater patriae. Therefore the realm trusteth him when they will not trust a private man. Thirdly, because of the inconveniences of it. For when a subject is clothed with the King’s prerogative he seldom keeps a measure. For I never saw an universal patent granted but it was disorderly executed. Fourthly, it’s a scandal to justice. The Council Board approved and applauded this resolution of the Judges as one of the best that ever was given. The King then, having the opinion of the Judges in point of law and of his Council for point of state, had good and sufficient ground for making such a Declaration.
I shewed precedents likewise against monopolies. King Philip, coming over to marry Queen Mary, arrived at Southampton where, being royally received by the town, to gratify them granted them a monopoly that all sweet wines which were brought into this kingdom should be brought into Southampton. During Queen Mary’s time none durst speak against it, but 2° Eliz. it was questioned and judged to be a monopoly, whereupon 5to Eliz. the subject by an act of parliament was freed from it, but the stranger remained bound, William Simpson had gotten a patent for the sole importation of stone pots and heath to make brushes withal. This was complained of to the Queen. Go (said she) to Burleigh, then Lord Treasurer, Popham and Coke, and cause a quo warranto to be brought against it. And it was adjudged a monopoly. Sir Thomas Wilkes his patent of sole making of salt in Norfolk, because he had made a new addition to it, yet it was adjudged to be a monopoly because a new button added to an old coat makes it not a new coat, and etc. Sir John Paggington his patent of sole importation of starch, his patent overthrown. Richard Mompesson and Robert Alexander for the sole importation of drugs and aniseeds, a monopoly. Elizabeth Martin, the sole buying of fish livers to make train oil. Sir Edward Darcy, the sole importation and exporting of cork prohibited and adjudged a monopoly.
Next, for concealments, a patent as bad or rather worse than any other. First, that no nobleman can grant land wherein he hath not actual possession. Therefore it cannot stand with the justice of the king to grant any land to the disherison of his subjects. Secondly, it robs the king of his tenures which is the tree of his revenue, with which goeth licence of alienation, wards, and marriage. Thirdly, it robs the church. Christ whipped the buyers and sellers out of the temple; he would much more whip the buyers and sellers of churches. Fourthly, it robs the poor, for Sir Giles Mompesson had passed twelve hospitals in one book. Therefore the King hath reserved these things justly to himself, commanding in his said Book that neither the Broad Seal nor his Privy Signet should be put to any of these.
I told them also that this parliament we had been careful to observe these three things diligently: first, that we would not deal with the King’s absolute power, whereby he may make war, etc. Cum canerem regis et proelia Cinthius aurem vellet et admonuit. When as I did begin to sing of kings and war, Apollo pulled me by the ear and said I went too far. Secondly, to preserve the King’s honor. And to this end we have set down the King’s guides, the referees. Thirdly, to provide for the wealth of the King. But the King cannot be rich if the subject be poor.
I then told them I had one thing more if they were not weary. The Prince desired to hear it. I said, in the Italian history there was mention made of a friar who had spent his time in holy devotion. He was sent to Rome to preach, and because he had never been at Rome before he went 10 or 12 days before the time. And when he came and observed so much ceremonies and pomp and so little devotion, what a lamentable thing (said he) is this, I will not preach here. Yet when his day came he went into the pulpit, and said this, matto Sante Piero, St. Peter was a fool. This he said three times and came down again; and being examined why he spake those words, answered, St. Peter said non habeo aurum nec argentum, silver and gold have I none, but the Pope hath plenty. He spent his time in prayer, the Pope in pleasure and vanity; he in building the inward man, you in pampering the outward man. If any of you do go to heaven, St. Peter was a fool to undergo such pressures. So surely I may say matto Signor Empsono, matto Signor Dudleio. Our Mompesson hath gone beyond you, what fools were they to be hanged (for, as it were, a matter of nothing). Sir Giles Mompesson hath gone so far beyond them all as that a man had need of an astrolobe to take the height of it. And therefore I hoped they would give condign punishment. So I delivered them the heads.
March 16, 1621.
Ed.: In a debate concerning the propriety of serving a subpoena on judges to testify in a matter over which they are not presiding.
Sir Edward Coke said, that every one who sitteth here is as a judge, and hath a vote negative in the making of the laws of this kingdom: that the Judges of the Common Pleas, or of any court, are never sworn as witnesses in any case, albeit they know of something concerning it, and can testify in it; but, if their knowledge be asked, they answer it without an oath: that no Judge of the Star-Chamber can be served with a subpoena ad testificandum in that court; and therefore none of us are to be examined as witnesses in any thing whereof this House with the Lords are to be judges.
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Sir Edward Coke. That for a member of this house to be examined on oath in a business sent from us to the Lords was never before desired: that we were best to answer, that we have no precedents that ever it was done, and that there is no necessity in it, because the greatest matters are sufficiently proved.
March 22, 1621.
Ed.: In a debate concerning a bill on the election of burgesses.
Sir Edward Coke. I had rather live under severe laws than under any man’s discretion. Misera servitas est ubi ius est vagum et incognitum.
April 20, 1621.
Ed.: In a debate concerning the bribery of judges.
Sir Edward Coke. I love Sir John Bennet well but I hate bribery. First let it be set down in writing and then present it to the Lords. If it be found true, it will touch him near. If not, beatus est, for blessed is he that keepeth his hand from bribery.
May 3, 1621.
Ed.: In a debate on a bill concerning unjust exaction of fees in courts of justice.
Sir Edward Coke. Courts of justice are like a circle, you cannot add anything unto it but you mar it. If you put new to old it will never agree. If the king will grant an office to two whereas anciently it appertained to one, it will never do well. 13 Hen. 4, there is a resolution that a fee cannot be set to a new office without an act of parliament. It’s in the canvas case and the grant of an office without a fee is void. 27 Hen. 8, if I grant to one to be my steward without a fee, it’s void. But in a court of justice if you bring in a new office it will never want fees. Therefore let there be none. If the King grant a new office and give him a fee, it’s void.
May 4, 1621.
Ed.: In a debate regarding when the King can intervene in proceedings.
Sir Edward Coke. When any judgment is given in a case concerning the king (as all criminal cases do for they are contra coronam et dignitatem suam, ) the king may stay judgment and execution. 2 Edw. 3; 20, it’s enacted that no judgment shall be stayed for any message whatsoever. This is true for the late Queen hath sent and the Judges have answered they may not. Nay if the Great Seal come they may not stay judgment between party and party. But if the king be a party he may stop it, 1 Hen. 7. To question this judgment is strange; if a judgment be given when a judge is absent, if he come after into the court it shall be accounted his judgment. Nay, if a judge be present and give his voice against a judgment yet, being judged by the rest it shall be his judgment. If the king send to stop an indictment in an appeal I would not do it but in an indictment I would let the judgment entered stand, referring the execution to his Majesty, my great master.
May 5, 1621.
Ed.: In a debate concerning a bill to confirm Magna Charta in chapter 29, to bar corporations from engaging in the imprisonment of individuals.
Sir Edward Coke. The Statute of Magna Charta hath ben 32 [times] Confirmed, and never hath it ben so infringed as of late yeears. Corporations have gotten by Lawes according to Law, and to imprison for breach, but that is against all Law. But this bill trenshes so deepe that a man for any cause of State can not be imprisoned but theay must shew ther reson. and therfor faulty in that and oute of the Statute of Magna Charta as in 33 Hen. 6 and confirmd so by all the judges. For L[ondon]s Corp[oratio]ns, lett them follow the Law and not committ upon by Lawes, for theay cannot doo that.
May 17, 1621.
Ed.: In considering pending bills seeking monopolies and price fixing.
Sir Edward Coke. That there is 19 patents for monopolies, concealments, and penal laws, tearing the flowers from the Crown. In the 44 of Eliz., by proclamation all of this nature was damned, and therefore I think it fit by petition to go to the King that all these may be damned.
June 2, 1621.
Ed.: In a debate concerning trade and customs.
Sir Edward Coke saith, that this motion of sir D. Digges is a worthy motion; for freedom of trade is the life of trade: that customers are called in latin Publicani, and every one knoweth, that Christ called publicans sinners; and we may justly match and call publicans customers, and customers sinners; for they cozen and deceive both the king and kingdom. He saith, he will never fear questioning for what he hath here said; for he hath here spoken old English, which is conscience. He knoweth he hath offended many, because it pleased this house to put him in the chair at the committee concerning monopolies; whereby he hath proceeded the more carefully. He would have those of the out ports, who shall desire to farm their customs, to offer good sureties: but, for the better furtherance of trade, he would have an order of declaration entered here, that none of those patents of monopolies, which have been here condemned, should be put in execution during this adjournment or cessation.
November 22, 1621.
Ed.: Here Coke prefaces the reports of three members of the Lords.
Sir Edward Coke. I am to make report of three speeches of three great lords. 1, The Lord Bishop of Lincoln, Lord Keeper of the Great Seal of England. 2, The Lord Digby. 3, The Lord Treasurer. But first I will begin with myself. I am in this case at a great disadvantage, for it appears their speeches were premeditates meditationes ; mine must needs be properatus. They (no doubt) had conference one with another before, and collatio peperit artes et perficit artes. I marked how everyone of them spake in his own element, and that hath ever been the order in parliaments, but I am sure I am out of my element. The first of them was a divine and excellent orator for persuasion. The second was my Lord Digby who was ambassador, and he was set forth in the King’s negotiation. The third was my Lord Treasurer who was to speak concerning the treasure of the kingdom. They are all in the vigor of their age. I am in declining. They have had it from the fountain, I from the streams. And thus much of myself. Now I come to their speeches.
December 3, 1621.
Ed.: In a debate on the foreign and domestic policy implications of an alliance by royal marriage with Spain.
Sir Edward Coke answereth something that hath not been answered. Melius est recurrere quam male currere, satius est recurrere quam praecurrere. Hath not every man the marriage of his own child, yea, the king cannot dispose of the marriage of my son. If lands descend from another ancestor, the king cannot have the wardship and marriage, the father living. These are inseparable prerogatives of the Crown and king. Marriage and leagues, war and peace, they are arcana imperii and not to be meddled with. If they were a petition of right that required an answer, I would never prefer it or give my consent to the preferring of it; but it’s only a petition of grace. The Prince his marriage must move either directly or indirectly from the King. Now we have heard the Lords say that Janus his temple must be opened; the voice of Bellona must be heard and not of the turtle. Nay more we heard that his Majesty must either abandon his children or engage himself in war. The King of Spain maintains 6 armies, his forces have gotten the Palatinate, so then we must fight against the Spaniards. But we desire that we might fight against Spain. We say that the hope of the marriage with Spain is the cause of the insolency of the papists. We advise nothing but what his Majesty liketh, for surely it will avert the hearts of many that he should marry with any but a protestant. For marriage with strange women the scripture saith cauti sitis ne avertant corda vestra et sequamini deos alienos. To do this by way of petition is good and hath no hurt in it. If it please his Majesty he may take this petition for a ground and lay it by or else make use of it when the match is next moved. He may give it life if he please and quash it at his pleasure, for we draw not a bill to bind but a petition, precedents whereof you may have divers. Edward 3 did confer with his Commons concerning his marriage. 42 Edw. 3. No. 7, a foreign prince did abuse him and he being weary of arms was for a treaty, and they dissuaded him from peace and persuade him to take his sword in hand because a just war was better than a dishonorable peace. That the Commons may argue, debate and dispute of the estate of the kingdom which concerns the good of it. 4 Hen. 5, a league was to be made between the King of England and Sigismund, King of the Romans, by act of parliament and there is an act for it. The writ is our guide. Nil nisi prudentia aut ratione fecit vetustas. The king calleth the parliament pro magnis arduis et urgentibus negociis nos statum et defensionem regni nostri ac statum et defensionem ecclesiae concernentibus etc. Now judge if ever cause were more urgent than this or did concern the state, kingdom and commonwealth. Ecclesiam Anglianam are the words of the writ and doth not this concern religion?
December 15, 1621.
Ed.: In a debate on the King’s prerogative on the privileges and liberties of his subjects.
Sir Edward Coke. Silence would smite my conscience. Cum aequali dubium, cum principe stultum, cum puero poena[m], cum puella pudorem. One out of Ireland would not dispute with the king. The king as the sun in summo gradu hath his full light. In the 39 Edw. 4, the liberties of the court is the law of the court. 19 Hen. 6. When the law groweth dangerous, they may be freed by parliament. How can great men be punished, their burthen is pulled off. We must have another interpretation. He would have us have any other style as nulli vendimus. The king will not sell justice. The law no custom but by custom, that is, particular laws. The King doth not mean to take our privileges away. But that a Committee of the whole House for we can have no proxies but we represent others. That a committee be appointed on Monday.
December 17, 1621.
Sir Edward Coke saith, that we have now, by this last message, as he conceiveth, an allowance of our Privileges, which indeed are our’s by law, by custom, by precedent, and by act of parl. That he thinketh, if we did set down our privileges and liberties, it would clear us of all those rubs. He wisheth, that himself were a sacrifice, so as there were a good and perfect correspondency and right understanding between the king and the house, as he hopeth there is: That one Walter Clerk, being a burgess for Chippenham, was fined for a riot in time of parl. at the king’s suit; which encouraged also one Rob. Basset to sue the said Clerk, on an action of trespass; and also one John Payne sued the said Clerk to an outlawry, and laid him up in the Fleet: but hereupon this house of parl. would do nothing till they had their burgess again. Those of the king’s side said then, that, for the king’s suit, Non omittas propter aliquam libertatem; and it was then also alledged, on the behalf of this house, that the king calleth the burgesses here for the service of the kingdom; and if one of them may be taken from us, all may like-wise by the same right.
…
Sir Edward Coke would have us make a Protestation for our Privileges: That he can tell us when both houses did sit in parl. together, both the lords and the commons: That the demand of the privileges of this house, by the Speaker was after they began to be questioned: and, at first, when the demand of the privileges was made to the kings of this realm, it used to be done still at the first meeting of the parl.; and in this manner, that, if the house might not have their privileges and liberties, they would sit silent. He would have us make our protestation for our privileges, and then send the same to the king, that he may see it.
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