91. RECORDS OF JUDICIAL CASES (1606-21)
Clark: ... It seemeth to me strange that any subjects would contend with the king in this high point of prerogative; but such is the king's grace that he had showed his intent to be that this matter shall be disputed and adjudged by us according to the ancient law and custom of the realm. And because that the judgment of this matter cannot be well directed by any learning delivered in our books of law, the best directions herein are precedents of antiquity and the course of this court, wherein all actions of this nature are to be judged; and the acts of parliament recited in arguments of this case prove nothing to the purpose.... The precedents of every court ought to be a direction to that court to judge of matters which are aptly determinable therein: as in the king's bench for matters of the crown, in the common pleas for matters of inheritance and civil contracts, and in the exchequer for matters of the king's prerogative, his revenue and government. And as it is not a kingdom without subjects and government, so he is not a king without revenues; for without them he cannot preserve his dominions in peace, he cannot maintain war, nor reward his servants according to the state and honour of a king. And the revenue of the crown is the very essential part of the crown; and he who rendeth that from the king pulleth also the crown from his head, for it cannot be separated from the crown. And such great prerogatives of the crown, without which it cannot be, ought not to be disputed; and in these cases of prerogative the judgment shall not be according to the rules of the common law, but according to the precedents of this court, wherein these matters are disputable and determinable....[2]
And so much for precedents. And now for statutes. The statute of Magna Carta, c. 30 ... , was objected — that thereby all merchants may have safe, etc., to buy and sell without ill toltes — but there is a saving, viz., by the ancient and old customs. The statute of Articuli super Cartas, c. 2, hath a saving in the end of it ... [regarding] ancient prises due and accustomed.[3] So are all the other statutes of purveyors. The statute of ... 45 Edward III, c. 4,[4] which has been so much urged — that no new imposition shall be imposed upon wool-fells, wool, or leather, but only the custom and subsidy granted to the king — this extends only to the king himself and shall not bind his successors; for it is a principal part of the crown of England, which the king cannot diminish.... As to that which was objected, that the defendant had paid poundage granted by the statute ... , that is nothing to this purpose, for that is a subsidy and not a custom. For when any imposition is granted by parliament, it is only a subsidy and not a custom, for the nature thereof is changed....
The writ of ne exeat regnum comprehends a prohibition to him to whom it is directed, that he shall not go beyond the seas; and this may be directed at the king's pleasure to any man who is his subject. And so, consequently, may he prohibit all merchants. And as he may prohibit the persons, so may he the goods of any man, viz., that he shall export or import at his pleasure. And if the king may generally inhibit that such goods shall not be imported, then by the same reason may he prohibit them upon condition ... , that, if they import such goods, that then they shall pay, etc....
And so, for all these reasons, judgment shall be given for the king.
Fleming, Chief Baron: ... The state of the question is touching a new custom. The impositions or customs are duties or sums of money newly imposed by the king without parliament upon merchandise for the augmentation of his revenues.... To the king is committed the government of the realm and his people.... The king's power is double, ordinary and absolute; and they have several laws and ends. That of the ordinary is for the profit of particlar subjects — for the execution of civil justice ... , and this is exercised by equity and justice in ordinary courts, and by the civilians is nominated ins privatum, and with us common law. And these laws cannot be changed without parliament ... The absolute power of the king is not that which is converted or executed to private use, to the benefit of any particular person, but is only that which is applied to the general benefit of the people ... , as the people is the body and the king the head. And this power ... is most properly named policy and government. And as the constitution of this body varieth with the time, so varieth this absolute law according to the wisdom of the king for the common good....
The matter in question is material matter of state and ought to be ruled by the rules of policy. And if it be so, the king hath done well to execute his extraordinary power. All customs, be they old or new, are no other but the effects and issues of trades and commerce with foreign nations. But all commerce and affairs with foreigners, all wars and peace, all acceptance and admitting for current foreign coin, all parties and treaties whatsoever, are made by the absolute power of the king; and he who hath power of causes hath power also of effects.... It is said that an imposition may not be upon a subject without parliament.... It is not here the question if the king may impose upon the subject or his goods. But the impost here is not upon a subject; but here it is upon Bates as upon a merchant who imports goods within this land charged before by the king. And at the time when the impost was imposed upon them they were the goods of the Venetians, and not the goods of a subject nor within the land....
And whereas it is said that, if the king may impose, he may impose any quantity what he pleases, true it is that this is to be referred to the wisdom of the king, who guideth all under God by his wisdom, and this is not to be disputed by a subject.... To prove the power of the king by precedents of antiquity in a case of this nature may easily be done. And if it were lawful in ancient times it is lawful now; for the authority of the king is not diminished, and the crown hath the same attributes that then it had....
All these statutes[5] prove expressly that the king had power to increase the impost, and that upon commodities of the land; and that he continually used this power notwithstanding all acts of parliament against it. And so much for commodities of this land. But for foreign commodities it appears by no act of parliament or other precedent that ever any petition or suit was made to abate the impost of foreign commodities, but of them the impost was paid without denial.... Wherefore I think that the king ought to have judgment....
Howell, State Trials, II, 382-94.
(B) The Question of Prohibitions (1607)[6]
... Upon complaint made to him by Bancroft, archbishop of Canterbury concerning prohibitions, the king was informed that, when the question was made of what matters the ecclesiastical judges have cognizance, either upon the exposition of the statutes concerning tithes or any other thing ecclesiastical, or upon the statute of 1 Elizabeth concerning the high commission, or in any other case in which there is not express authority in law, the king himself may decide it in his royal person; and that the judges are but the delegates of the king, and that the king may take what causes he shall please to determine from the determination of the judges and may determine them himself. And the archbishop said that this was clear in divinity, that such authority belongs to the king by the word of God in the Scripture. To which it was answered by me, in the presence and with the clear consent of all the judges of England and barons of the exchequer, that the king in his own person cannot adjudge any case, either criminal ... or betwixt party and party ...; but this ought to be determined and adjudged in some court of justice according to the law and custom of England....
Then the king said that he thought the law was founded upon reason, and that he and others had reason as well as the judges. To which it was answered by me that true it was that God had endowed his majesty with excellent science and great endowments of nature; but his majesty was not learned in the laws of his realm of England, and causes which concern the life or inheritance or goods or fortunes of his subjects are not to be decided by natural reason, but by the artificial reason and judgment of law — which law is an act which requires long study and experience, before that a man can attain to the cognizance of it — and that the law was the golden metwand and measure to try the causes of the subjects, and which protected his majesty in safety and peace. With which the king was greatly offended, and said that then he should be under the law — which was treason to affirm, as he said. To whom I said that Bracton saith quod rex non debet esse sub homine, sed sub Deo et lege.[7]
Coke, Reports, XII, 64.
(C) The Case of the Postnati (1608)[8]
[Chief Justice Coke:] ... There is a diversity between a conquest of a kingdom of a Christian king and the conquest of a kingdom of an infidel. For, if a king come to a Christian kingdom by conquest ... , he may at his pleasure alter and change the laws of that kingdom; but, until he doth make an alteration of those laws, the ancient laws of that kingdom remain.... But if a Christian king should conquer a kingdom of an infidel and bring them under his subjection, there ipso facto the laws of the infidel are abrogated; for that they be, not only against Christianity, but against the law of God and of nature contained in the Decalogue.... But if a king hath a kingdom by title of descent, there seeing by the laws of that kingdom he doth inherit the kingdom, he cannot change those laws of himself without consent of parliament. Also, if a king hath a Christian kingdom by conquest, as Henry II had Ireland — after John had given unto them, being under his obedience and subjection, the laws of England for the government of that country, no succeeding king could alter the same without parliament. And in that case, while the realm of England and that of Ireland were governed by several laws, any that was born in Ireland was no alien to the realm of England....[9]
Whosoever are born under one natural ligeance and obedience, due by the law of nature to one sovereign, are natural-born subjects.... Whosoever is born within the king's power or protection is no alien.... Whatsoever is due by the law or constitution of man may be altered, but natural ligeance or obedience to the sovereign cannot be altered.... Lastly, whosoever at his birth cannot be an alien to the king of England cannot be an alien to any of his subjects of England....
The judgment in the said case, as entered on record, etc. Whereupon all and singular the premises being seen, and by the court of the lord the now king here diligently inspected and examined, and mature deliberation being had thereof; for that it appears to the court of the lord the now king here that the aforesaid plea of the said Richard Smith and Nicholas Smith, above pleaded, is not sufficient in law to bar the said Robert Calvin from having an answer to his aforesaid writ: therefore it is considered by the court of the lord the now king here that the aforesaid Richard Smith and Nicholas Smith to the writ of the said Robert do further answer.
[Lord Chancellor Ellesmere:] ... King James hath now the kingdoms of England, Scotland, and Ireland, and the isles of Guernsey and Jersey by descent. All these be his dominions and under his subjection and obedience.... If at this time subjects born in Ireland or Guernsey and Jersey be no aliens, but capable of lands in England, then, by an analogical interpretation, why should not subjects born in Scotland be at this time in like degree? ... [10]
In this new learning there is one part of it so strange and of so dangerous consequent as I may not let it pass: viz., that the king is as a king divided in himself, and so as two kings of two several kingdoms; and that there be several allegiances and several subjections due unto him respectively in regard of his several kingdoms, the one not participating with the other. This is a dangerous distinction between the king and the crown, and between the king and the kingdom. It reacheth too far; I wish every good subject to beware of it.... Upon this subtle and dangerous distinction of faith and allegiance due to the king and of faith and allegiance due to the crown and to the kingdom — which is the only basis and fundamental main reason to disable the plaintiff and all postnati — there follow too many gross and foul absurdities; whereof I will touch some few, and so conclude that in law and reason this subtle but absurd and dangerous distinction ought not to be allowed. This bond of allegiance whereof we dispute is vinculum fidei; it bindeth the soul and conscience of every subject severally and respectively to be faithful and obedient to the king. And, as a soul or conscience cannot be framed by policy, so faith and allegiance cannot be framed by policy, nor put into a politic body. An oath must be sworn by a natural body; homage and fealty must be done by a natural body, a politic body cannot do it. Now then, since there is but one king and sovereign, to whom this faith and allegiance is due by all his subjects of England and Scotland, can any human policy divide this one king and make him two kings? ...
I said there was another general rule for expounding of laws, which I reserved to be last spoken of. I will now but touch it; for I will not stand to examine by human reasons whether kings were before laws or laws before kings, nor how kings were first ordained, nor whether the kings or the people did first make laws, nor the several constitutions and frames of states and commonweals, nor what Plato or Aristotle have written of this argument.... They were born and lived in Greece, and in popular states; they were enemies, or at least mislikers, of all monarchies ...; they accounted all the world barbarous but their own country of Greece; their opinions, therefore, are no canons to give laws to kings and kingdoms, no more than Sir Thomas More's Utopia or such pamphlets as we have at every mart....
If this question seem difficult — that neither direct law, nor examples and precedents, nor application of like cases, nor discourse or reason, nor the grave opinion of the learned and reverend judges can resolve it — here is a true and certain rule how, both by the civil law and the ancient common law of England, it may and ought to be decided: that is by sentence of the most religious, learned, and judicious king that ever this kingdom or island had. But this case is so clear as this needeth not at all. And in this I would not be misunderstood, as though I spake of making of new laws or of altering the laws now standing. I mean not so; but I speak only of interpretation of the law in new questions and doubts, as now in this present case. Neither do I mean hereby to derogate anything from the high court of parliament — far be it from my thought! ... But certain it is it hath been the wisdom of the kings of this realm to reserve in themselves that supreme power to call their nobles, clergy, and commons together, when they saw great and urgent causes, and by that great council to make edicts and statutes for the weal of their people and safety of the kingdom and state....
Thus I have here delivered my concurrence in opinion with my lords the judges, and the reasons that induce and satisfy my conscience that Robert Calvin, and all the postnati in Scotland are in reason and by the common law of England natural-born subjects ... of the king of England, and enabled to purchase and have freehold and inheritance of lands in England and to bring real actions for the same in England....
Howell, State Trials, II, 638-96.
(D) The Question of Royal Proclamations (1610)[11]
... The lord chancellor said that every precedent had first a commencement and that he would advise the judges to maintain the power and prerogative of the king, and in cases in which there is no authority and precedent to leave it to the king to order in it, according to his wisdom and for the good of his subjects, or otherwise the king would be no more than the duke of Venice; and that the king was so much restrained in his prerogative that it was to be feared the bonds would be broken. And the lord privy seal said that the physician was not always bound to a precedent, but to apply his medicine according to the quality of the disease. And all concluded that it should be necessary at that time to confirm the king's prerogative with our opinions, although that there were not any former precedent or authority in law; for every precedent ought to have a commencement. To which I answered that true it is that every precedent hath a commencement; but, when authority and precedent is wanting, there is need of great consideration before that anything of novelty shall be established, and to provide that this be not against the law of the land. For I said that the king cannot change any part of the common law, nor create any offence by his proclamation which was not an offence before, without parliament....
It was resolved by the two chief justices, chief baron, and Baron Altham, upon conference betwixt the lords of the privy council and them, that the king by his proclamation cannot create any offence which was not an offence before; for then he may alter the law of the land by his proclamation in a high point. For, if he may create an offence where none is, upon that ensues fine and imprisonment. Also the law of England is divided into three parts: common law, statute law, and custom. But the king's proclamation is none of them.... Also it was resolved that the king hath no prerogative but that which the law of the land allows him. But the king, for prevention of offences, may by proclamation admonish his subjects that they keep the laws and do not offend them, upon punishment to be inflicted by the law, etc....
Coke, Reports, XII, 74 f.
(E) Council Proceedings on a Judgment in Chancery (1613)
The lords having this day heard Sir Henry Billingsley, knight, and Edmund Mathewes, esquire, between whom a controversy hath long depended in the high court of chancery concerning great sums of money due by Mathewes unto the said Billingsley, to the payment whereof sundry his lands and possessions were liable, which the said Billingsley did humbly desire he might, with their lordships' favours, dispose of towards his own satisfaction, according to a solemn decree in chancery given on his behalf; their lordships being nevertheless favourably inclined for Mr. Mathewes' relief ... , being a gentleman of a good house, and whose distressed estate doth move them to compassion to make some such agreement betwixt them as that the land might be sold to the best advantage and Sir Henry Billingsley satisfied his debt with the moneys arising thereupon, the residue (if any be) to remain unto Mr. Mathewes, provided that the same might be accomplished in such convenient time as Sir Henry Billingsley his estate and occasion might well suffer without much prejudice; and finding the same not possible to be effected by any overtures or motions which their lordships could make unto them, as was desired, the cause is dismissed from this table and Sir Henry Billingsley left unto the validity of his decree and conveyances, to make such use thereof as he shall see cause, and in the meantime Mr. Mathewes required, neither by himself or any other on his behalf, to importune the lords or any of them with further petitions.
Acts of the Privy Council, 1613-1614, p. 87.
(F) The Question of Commendams (1616)[12]
His majesty and the lords [of the council] thought good to ask the judges severally their opinion, the question being put in this manner: whether, if at any time in a case depending before the judges which his majesty conceived to concern him either in power or profit, and thereupon required to consult with them and that they should stay proceedings in the meantime, they ought not to stay accordingly. They all (the lord chief justice only except) yielded that they would, and acknowledged it to be their duty so to do. Only the lord chief justice of the king's bench said for answer that when that case should be, he would do that should be fit for a judge to do. And the lord chief justice of the common pleas, who had assented with the rest, added that he would ever trust the justness of his majesty's commandment.
After this was put to a point, his majesty thought fit, in respect of the further day of argument appointed the Saturday following for the commendams, to know from his judges what he might expect from them concerning the same. Whereupon, the lord [archbishop] of Canterbury breaking the case into some questions, his majesty did require his judges to deal plainly with him, whether they meant in their argument to touch the general power of granting commendams, yea or no. Whereupon all his said judges did promise and assure his majesty that in the argument of the said case of commendams they would speak nothing which should weaken or draw into doubt his majesty's prerogative for the granting of them; but intended particularly to insist upon the point of the lapse and other individual points of this case, which they conceive to be of a form differing from all other commendams which have been practised. The judges also went further, and did promise his majesty that they would not only abstain from speaking anything to weaken his majesty's prerogative of commendams, but would directly and in plain terms affirm the same and correct the erroneous and bold speeches which had been used at the bar in derogation thereof. Also, all the judges did in general acknowledge and profess with great forwardness that it was their duty, if any counsellor at the bar presumed at any time to call in question his majesty's high prerogatives and regalities, that they ought to reprehend them and silence them; and promised so to do hereafter.
Ibid., 1615-1616, pp. 607 f.
(G) Council Proceedings against Sir Edward Coke (1616)
Sir Edward Coke, knight, chief justice of the king's bench, presenting himself this day at this board upon his knees, Mr. Secretary Winwood signified unto him that their lordships had made report to his majesty of that which passed on Wednesday last at Whitehall, where he was charged by his majesty's solicitor with certain things wherein his majesty was much unsatisfied.... Which being delivered in writing and in his princely judgment duly weighed and considered of, his majesty was no way satisfied with his answers to any of those three points, wherewith he stood charged (viz., neither in that which he made concerning the bond and defeasance upon the installment of a debt of Sir Christopher Hatton, late lord chancellor of England; nor yet in that which he maketh concerning his speeches of high contempt, uttered as he sat in the seat of justice, concerning the overthrow of the common law; nor, lastly, in the answer he offereth to excuse his uncivil and indiscreet carriage before his majesty, assisted with his privy council and his judges), but that the charge lieth still upon him, notwithstanding anything contained in his said answers.
Nevertheless, such is his majesty's clemency and goodness as he is pleased not to proceed heavily against him, but rather to look upon the merit of his former services, and accordingly hath decreed: first, that he be sequestered from the council table until his majesty's pleasure be further known; secondly, that he do forbear to ride this summer's circuit as justice of assize; lastly, that during this vacation ... he take into his consideration and review his book of reports, wherein (as his majesty is informed) there be many exorbitant and extravagant opinions set down and published for positive and good law. And if, in the review and reading thereof, he find anything fit to be altered or amended, the correcting thereof is left to his discretion. Amongst other things, his majesty was not well pleased with the title of those books, wherein he styled himself lord chief justice of England, whereas he could challenge no more than chief justice of the king's bench. And having corrected what in his discretion he found meet in those reports, his majesty's pleasure was that he should bring the same privately to himself, that he might consider thereof as in his princely judgment should be found expedient....
Hereunto the lord chief justice made answer that he did in all humility prostrate himself to his majesty's good pleasure; that he acknowledged the decree to be just....
Ibid., 1615-1616, pp. 648-50.
Pigg brought an action of trespass against Caley for taking his horse, etc. Caley said that he is seised of the manor of D. to which Pigg is a villein regardant; and that and all those, etc., have been seised of the plaintiff and his ancestors. The plaintiff said that he is free, etc.; absque hoc, that the defendant, etc., were seised of the plaintiff, etc., as of villein regardant. And the issue is found for the plaintiff. And upon motion in arrest of judgment, it is ruled that the traverse is well taken....
Noy, Reports, p. 27.
(I) Impeachment of Francis Bacon (1621)[14]
[15 March.] Sir Robert Phillips reporteth from the committee for courts of justice three parts: person against whom, the matter, and opinion of the committee — with desire of further direction.
The person, the lord chancellor ...; the matter, corruption; the parties accusing, Awbrey and Egerton. Awbrey complaineth that, wearied in his cause in chancery, he was advised by his counsel, to expedite his business, to present the lord chancellor with £100. He got at use £100; goeth with Sir George Hastings and Mr. Jenkyns to York House. There they two went [in], and returned to him with thanks from my lord and hopes of better success in his cause than formerly.... The next, Edward Egerton, [declares] that, having many suits, he first presented my lord with a basin and ewer of £52 ...; that he sold tithes, raised £400, carried it to Whitehall to my lord chancellor's lodging, called for Sir George and Sir Richard Yong, and by them sent in this gold in a purse ... to my lord, who started at it, saying it was too much; that thanks [were] returned to him from my lord....
Journals of the Commons, I, 554.
[19 March.] Sir Robert Phillips reporteth that he acquainted their lordships from this house that we have received a complaint and information against some noble lord of that house, and that therefore we of this house desire a conference with their lordships to acquaint them with the particulars of the complaint and the circumstances; that their lordships have appointed the conference for this afternoon, at two of the clock, the number to be the whole house.
The heads and circumstances of the accusation against the lord chancellor [by Awbrey and Egerton] are set down in writing and are read here in the house; but are to be delivered by word of mouth by Sir Robert Phillips this afternoon at a conference with the lords....
Nicholas, Proceedings in the Commons, I, 194 f.
[20 March.] The lord treasurer reported the conference yesterday with the commons. At which conference was delivered the desire of the commons to inform their lordships of the great abuses of the courts of justice.... The lord chancellor is accused of great bribery and corruption committed by him in this eminent place, whereof two cases were alleged: the one concerning Christopher Awbrey, the other concerning Edward Egerton....
[24 April.] ... Their lordships resolved that the lord chancellor should be charged particularly with the briberies and corruptions complained of against him and that his lordship should make a particular answer thereunto.... Memorandum that, during the time the whole house was a committee, the collections of corruptions charged upon the lord chancellor and the proofs thereof made by the three committees ... was read by Mr. Attorney General.... Here followeth the said collection....[15]
[30 April.] ... The lord chief justice ... signified that he had received from the lord chancellor a paper roll sealed up, which was delivered to the clerk, and, being opened and found directed to their lordships, it was ... read; which follows in these words: "To the right honourable the lords spiritual and temporal in the high court of parliament assembled: the confession and humble submission of me, the lord chancellor. Upon advised consideration of the charge, descending into my own conscience and calling my memory to account, so far as I am able, I do plainly and ingenuously confess that I am guilty of corruption and do renounce all defence, and put myself upon the grace and mercy of your lordships. The particulars I declare and confess to be as followeth...."
[3 May.] ... It was put to the question whether the lord chancellor be guilty of the matters wherewith he is charged or no, and it was agreed by all ... that he was thereof guilty....
The lords, having agreed upon the sentence to be given against the lord chancellor, did send a message to the house of commons ... , that the lords are ready to give judgment against the lord viscount St. Albans, lord chancellor, if they with their speaker will come to demand it. In the meantime the lords put on their robes and, answer being returned of this message, the commons come. The speaker came to the bar and, making three low obeisances, said: "The knights, citizens, and burgesses of the commons' house of parliament have made complaint unto your lordships of many exorbitant offences of bribery and corruption committed by the lord chancellor. We understand that your lordships are ready to give judgment upon him for the same. Wherefore I, their speaker, in their name do humbly demand and pray judgment against him, the lord chancellor, as the nature of his offence and demerits do require."
The lord chief justice answered: "Mr. Speaker, upon the complaint of the commons against the lord viscount St. Albans, lord chancellor, this high court hath thereby, and by his own confession, found him guilty of the crimes and corruptions complained of by the commons and of sundry other crimes and corruptions of like nature. And therefore this high court (having first summoned him to attend, and having received his excuse of not attending by reason of infirmity and sickness; which he protested was not feigned or else he would most willingly have attended), doth nevertheless think fit to proceed to judgment. And therefore this high court doth adjudge: (1) that the lord viscount St. Albans, lord chancellor of England, shall undergo fine and ransom of £40,000; (2) that he shall be imprisoned in the Tower during the king's pleasure; (3) that he shall forever be incapable of any office, place, or employment in the state or commonwealth; (4) that he shall never sit in parliament nor come within the verge of the court. This is the judgment and resolution of this high court."
The prince his highness was entreated by the house that, accompanied with divers of the lords of this house, he would be pleased to present this sentence given against the late lord chancellor unto his majesty. His highness was pleased to yield unto this request....
Journals of the Lords, III, 53-106.
[1] In 1606 John Bates, a merchant trading with the Levant, refused to pay a custom of 5s. a hundredweight imposed by James I in addition to the poundage of 2s. 6d. established by parliament (cf. no. 89H). For this refusal Bates was brought to trial before the court of the exchequer, which, after lengthy arguments on both sides, upheld the legality of the king's imposition. The following extracts are from the opinions of Baron Clark and Chief Baron Fleming.
[2] Here Clark cites a number of precedents for the king's laying of impositions.
[3] Nos. 44, 51A.
[4] A re-enactment of no. 62J.
[5] A long list of acts under Edward I, Edward III, and Richard II.
[6] The question arose through complaints by the archbishop of Canterbury that the ecclesiastical courts were being unjustly interfered with through writs of prohibition (see above, no. 33I). Coke, as chief justice of the king's bench, warmly defended the common law practice, as appears from the following excerpt from his reports.
[7] That the king ought not to be under man, but under God and the law.
[8] The origin of this case was an assize of novel disseisin (see no. 33B) sought by the guardians of Robert Calvin against Richard and Nicholas Smith regarding a certain freehold in London. The defendants argued that they were not bound to reply in such action, because Robert Calvin was an alien, having been born in Scotland in the year 1606. The question raised was therefore whether a Scot born after (postnatus) the accession of James I to the English throne was entitled to bring suit in an English court concerning English lands. As the question was a new one, which came to involve actions both in common law and equity, the case was transferred to the court of exchequer chamber to be argued by all judges of the central courts. The following extracts are from, first, the report of Coke, chief justice of the common pleas, and, secondly, the opinion of Lord Chancellor Ellesmere.
[9] Coke goes on to discuss at great length the precedents earlier set in connection with Guienne, Normandy, the Isle of Man, and other non-English possessions of the English king. Then follow his conclusions drawn alike from history and natural reason.
[10] The chancellor here reviews the matter of historical precedent, only to agree with the opinions already delivered by Coke and other judges. Then, coming to the objections raised by the attorneys for the defence, he continues with the argument that follows.
[11] Cf. no. 74K.
[12] During the course of a trial in the common pleas the question arose whether the king had the right to present a man to an ecclesiastical living in commendam — that is to say, to make a temporary appointment. James, wishing to delay the judgment in order to have a preliminary discussion of the problem, caused Bacon, his attorney general, to summon the judges before him for that purpose. At the instance of Coke, now chief justice of the king's bench, they replied that they were bound by oath not to delay a case and that the summons of the attorney general was illegal. But the king compelled them to appear before him in the council and, on bended knees, to listen to his arguments. Whereupon proceedings continued as described in the following account.
[13] This brief report of an action before the king's bench is included here because it is the last recorded trial concerning villeinage in an English court. Caley's argument was that Pigg, being his villein attached to his manor, had no right to sue him for trespass. Such status was denied (the implication of the absque hoc) by Pigg. And since the jury rendered a verdict in his favour, his action was allowed to stand. See Holdsworth, History of English Law, III, 502 f.
[14] Only the crucial points in this famous trial are given here: the formal accusation as shown from the commons journals, supplemented by the contemporary notes of Edward Nicholas, and the final judgment delivered by the lords, as recorded in the journals of that house.
[15] Twenty-three instances of corrupt practices are enumerated.
