he may take the provision of any man by his purveyor for his own
use, but at reasonable prices and without abuse, the abuse of
which officer hath been restrained by divers statutes; and the
King may take wines for his provision, and also timber for his
ships, castles or houses in the wood of any man, and this is for
public benefit : and the King may alloy or enhance coin at his
pleasure, for the plenty of the king is the people's peace. * * *

The Statute of the 45 Edw. Ill, Cap. 4, which hath 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 Eng-
land which the King cannot diminish. And the same King, in the
24th of his reign, granted divers exemptions to certain persons,
and because that it was in derogation of his state imperial, he him-
self recalled and annulled the same * * *

All the ports of the realm belong to the King. * * * The writ
of ne exeat regno 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 or sub
modo, viz. that if they import such goods, that then they shall pay,
&c. * * *

[ Chief Baron Fleming^ 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 particular subjects, for the execution
of civil justice, the determining of meum ; and this is exercised
by equity and justice in ordinary courts, and by the civilians is
nominated jus privatum, and with us common law; and these laws
cannot be changed without parliament; and although that their
form and course may be changed and interrupted, yet they can
never be changed in substance. The absolute power of the King



Opinions of the Court in Bates' Case 331

K 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, and is salus populi; as the
people is the body, and the King the head; and this power is
[not] guided by the rules which direct only at the common law,
and 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 com-
mon good ; and these being general rules, and true as they are,
all things done within these rules are lawful. The matter in ques-
tion 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 com-
merce and affairs with foreigners, all wars and peace, all accept-
ance 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. That the King may impose upon a subject, I omit,
for 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 the 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 so all the arguments which were made for the subject
fail. * * *

And whereas it is said, that if the King may impose, he may
impose any quantity that 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 ; and many
things are left to his wisdom for the ordering of his power rather
than his power shall be restrained. The King may pardon any
felon : but it may be objected that if he pardoned one felon, he
may pardon all, to the damage of the commonwealth ; and yet
none will doubt but that is left to his wisdom. * * * And the
wisdom and providence of the King is not to be disputed by the
subject; for by intendment they cannot be severed from his
person, and to argue a posse ad actum, to restrain the King and
his power because that by his power he may do ill, is no argu-
ment for a subject. * * *



332 English Constitutional Documents

185. The Case of Prohibitions

(1607. 12 Coke's Reports, 63.)

NOTE, upon Sunday the loth of November in this same term,
the king, upon complaint made to him by Bancroft, arch-
bishop of Canterbury, concerning prohibitions, the king was in-
formed, 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 i El. 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 deter-
mination 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, as treason, felony, &c. or betwixt party and
party, concerning his inheritance, chattels, or goods, &c., but this
ought to be determined and adjudged in some court of justice,
according to the law and custom of England ; and always judg-
ments are given, idea consideration est per curiam, so that the
court gives the judgment : and the king hath his court, viz. in
the upper house of parliament, in which he with his lords is
the supreme judge over all other judges ; for if error be in the
common pleas, that may be reversed in the king's bench : and if
the court of king's bench err, that may be reversed in the upper
house of parliament, by the king, with the assent of the lords spir-
itual and temporal, without the commons : and in this respect the
king is called the chief justice, 20 H. 7. ;a. by Brudnell : and it
appears in our books, that the king may sit in the star-chamber ;
but this was to consult with the justices, upon certain questions
proposed to them, and not injudicio: so in the king's bench he
may sit, but the court gives the judgment : and it is commonly
said in our books, that the king is always present in court in the
judgment of law ; and upon this he cannot be nonsuit : but the
judgments are always given per curiam ; and the judges are sworn
to execute justice according to law and the custom of England,



The Case of Prohibitions 333

And it appears by the act of parliament of 2 Ed. 3. cap. 9. [2 Ed.
3. cap. 1.3 that neither by the great seal, nor by the little seal,
justice shall be delayed : ergo, the king cannot take any cause out
of any of his courts, and give judgment upon it himself, but in his
own cause he may stay it, as it doth appear 1 1 H. 4. 8. And the
judges informed the king, that no king after the conquest assumed
to himself, to give any judgment in any cause whatsoever, which
concerned the administration of justice within this realm, but these
were solely determined in the courts of justice : and the king
cannot arrest any man, as the book is in i H. 7. 4. for the party
cannot have remedy against the king; so if the ting give any
judgment, what remedy can the party have. Vide 39 Ed. 3. 14.
one who had a judgment reversed before the council of state ; it
was held utterly void, for that it was not a place where judgment
may be reversed. Vide i H. 7. 4. Hussey, chief justice, who was
attorney to Ed. 4., reports that Sir John Markham, chief justice,
said to King Ed. 4. that the king cannot arrest a man for suspi-
cion of treason or felony, as others of his lieges may ; for that if
it be a wrong to the party grieved, he can have no remedy : and
it was greatly marvelled that the archbishop durst inform the
king, that such absolute power and authority, as is aforesaid,
belonged to the king by the word of God. Vide 4 H. 4. cap. 22.
which being translated into Latin, the effect ]s,judicia in curia
regis reddita non nihil annihilentur, sed stet judicium in site robore
quousque per Judicium curia regis tanquam crrontvm, 6~r. Vide
West. 2. cap. j. Vide le stat. de Marlbridge. cap. I. Provisum
esf t concor datum, et concessum, quod tarn majores quam minores
justitiam habeant et recipiant in curia domini regis. Et vide le stat.
de Magna Charta, cap. 29. 25 Ed. 3. cap. j. None may be
taken by petition or suggestion made to our lord the king or his
council, unless by judgment : and 43 Edw. 3. cap. 3. no man shall
be put to answer without presentment before the justices, matter
of record, or by due process, or by writ original, according to the
ancient law of the land : and if anything be done against it, it shall
be void in law and held for error. Vide 28 Edw. 3. c. 3. 37 Edw.
3. cap. 1 8. Vide 17 R. 2. ex rotulis parliament! in Turn, art. JO.
A controversy of land between parties was heard by the king, and
sentence given, which was repealed for this, that it did belong to
the common law : 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



334 English Constitutional Documents

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 met-wand 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.



1 8 6. Judgment in the Case of the Post-nati, or
Calvin's Case

(1608. Judgment of Lord Chancellor Ellesmere. II State Trials, 106.
Prothero, 446.)

* * * nPHUS I have here delivered my concurrence in opinion
-L with my lords the judges, and the reasons that induce
and satisfy my conscience that Ro. Calvin, and all the post-nati
in Scotland, are in reason and by the common law of England
natural-born subjects within the allegiance 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 Eng-
land.



187. The Case of Proclamations

(1610. 12 Coke's Reports, 74.)

MEMORANDUM, that upon Thursday, 20 Sept. 8 Regis Jacobi,
I was sent for to attend the lord chancellor, lord treasurer,
lord privy seal, and the chancellor of the duchy ; there being pres-
ent the attorney, the solicitor, and recorder : and two questions
were moved to me by the lord treasurer; the one if the king by
his proclamation may prohibit new buildings in and about London
&c. ; the other, if the king may prohibit the making of starch of
wheat ; and the lord treasurer said, that these were preferred to
the king as grievances, and against the law and justice : and the
king hath answered, that he will confer with his privy council,



The Case of Proclamations 335

and his judges, and then he wffl do right to them. To which I
answered, that these questions were of great importance. 2. That
they concerned the answer of the king to the body, riz. to the
commons of the house of parliament. 3. That I did not hear of
these questions until this morning at nine of the clock : for the
grievances were preferred, and the answer made when I was in
my circuit. And, lastly, both the proclamations, which now were
showed, were promulgated, anno 5 Jac. t after my time of attorney-
ship : and for these reasons I did humble des.ire them that I might
have conference with my brethren the judges about the answer
of the king, and then to make an advised answer according to law
and reason. To which the lord chancellor said, that every prece-
dent 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 neces-
sary at that time to confirm the king's prerogative with our opin-
ions, although that there were not any former precedent or
authority in law : for every precedent ought to have a commence-
ment.

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 But at this
time I only desired to have a time of consideration and confer-
ence with my brothers, for dtlibcrandum est diu, quod statuendum
est semel; to which the solicitor said, that divers sentences were
given in the star chamber upon the proclamation against building ;
and that I myself had given sentence in divers cases for the said
proclamation : to which I answered, that precedents were to be
seen, and consideration to be had of this upon conference with
my brethren, for that iruKus est recurrere, quam male currere ;
and that indictments conclude, contra leges et statuta ; but I never
heard an indictment to conclude, contra regiam proclamationem.



33 6 English Constitutional Documents

At last my motion was allowed ; and the lords appointed the two
chief justices, chief baron, and baron Altham, to have considera-
tion of it.

Note, the king by his proclamation or other ways cannot change
any part of the common law, or statute law, or the customs of the
realm, n Hen. 4. 37. Fortescue De laudibus Anglice legum,
cap. 9. 18 Edw. 3. 35, 36, &c. 31 Hen. 8. cap. 8. hie infra:
also the king cannot create any offence by his prohibition or proc-
lamation, which was not an offence before, for that was to change
the law, and to make an offence which was not ; for ubi non est
lex, ibi non est transgressio : ergo, that which cannot be punished
without proclamation, cannot be punished with it. Vide le stat.
31 Hen. 8. cap. 8. which act gives more power to the king than
he had before, and yet there it is declared that proclamations shall
not alter the law, statutes, or customs of the realm, or impeach
any in his inheritance, goods, body, life, &c. But if a man shall
be indicted for a contempt against a proclamation, he shall be fined
and imprisoned, and so impeached in his body and goods. Vide
Fortescue, cap. 9, 18, 34, 36, 37, &c.

But a thing which is punishable by the law, by fine, and impris-
onment, if the king prohibit it by his proclamation, before that
he will punish it, and so warn his subjects of the peril of it, there
if he permit it after, this as a circumstance aggravates the offence ;
but he by proclamation cannot make a thing unlawful, which was
permitted by the law before : and this was well proved by the
ancient and continual forms of indictments ; for all indictments
conclude contra legem et consuetudinem Anglice, or contra leges et
statuta, &c. But never was seen any indictment to- conclude
contra regiam proclamationem.

So in all cases the king out of his providence, and to prevent
dangers, which it will be too late to prevent afterwards, he may
prohibit them before, which will aggravate the offence if it be
afterwards committed : and as it is a grand prerogative of the
king to make proclamation, (for no subject can make it without
authority from the king, or lawful custom,) upon pain of fine and
imprisonment, as it is held in the 22 Hen. 8. Proclamation B.
But we do find divers precedents of proclamations which are
utterly against law and reason, and for that void ; for qua contra
rationem juris introducta sunt non debent trahi in consequentiam.

An act which was made, by which foreigners were licensed to
merchandise within London ; Hen. 4. by proclamation prohibited
the execution of it; and that it should be in suspense usque ad
proximum parliament, which was against law. Vide dors, claus



Act against Monopolies 337

8 Hen. 4. Proclamation in London. But 9 Hen. 4. an act of par-
liament was made, that all the Irish people should depart the realm,
and go into Ireland before the feast of the Nativity of the Blessed
Lady, upon pain of death, which was absolutely in terrorem, and
was utterly against the law.

In the same term 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 j 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 malum aut est
malum in se, aut prohibitum, that which is against common law is
malum in se, malum prohibitum is such an offence as is prohibited
by act of parliament, and not by proclamation.

Also it was resolved, that the king hath no prerogative, but that
which the law of the land allows him.

Lastly, if the offence be not punishable in the star-chamber,
the prohibition of it by proclamation cannot make it punishable
there : and after this resolution, no proclamation imposing fine
and imprisonment was afterwards made, &c.



1 8 8. Act against Monopolies

(1624. 21 & 22 James I. c. 3. Prothero, 275-277.)

TJDRASMUCH as your most excellent Majesty, in your royal
-T judgment and of your blessed disposition to the weal and
quiet of your subjects, did in the year of our Lord God, 1610,
publish in print to the whole realm and to all posterity, that all
grants of monopolies, and of the benefit of any penal laws, or of
power to dispense with the law, or to compound for the forfeiture,
are contrary to your Majesty's laws ; which your Majesty's decla-
ration is truly consonant and agreeable to the ancient and fun-
damental laws of this your realm : and whereas your Majesty
was further graciously pleased expressly to command, that no
suitor should presume to move your Majesty for matters of that
nature ; yet nevertheless, upon misinformations and untrue pre-



33 8 English Constitutional Documents

tences of public good, many such grants have been unduly
obtained and unlawfully put in execution, to the great grievance
and inconvenience of your Majesty's subjects, contrary to the
laws of this your realm and contrary to your Majesty's royal and
blessed intention so published as aforesaid : for avoiding whereof
and preventing of the like in time to come, may it please your
most excellent Majesty * * * that it may be declared and enacted,
and be it declared and enacted * * * that all monopolies and all
commissions, grants, licences, charters and letters patents * * *
to any person, bodies politic or corporate, whatsoever, for the
sole buying, selling, making, working or using of anything within
this realm or the dominion of Wales, or of any other monopolies,
or of power to dispense with any others, or to give licence or tol-
eration to do anything against the tenor of any law or statute, or
to give or make any warrant for any such dispensation, licence or
toleration, * * * or to agree or compound with any others for any
penalty or forfeitures limited by any statute, or of any grant or
promise of the benefit of any forfeiture, penalty or sum of money
that shall be due by any statute, before judgment thereupon had,
and all proclamations, inhibitions, restraints, warrants of assistance,
and all other things whatsoever, any way tending to the instituting
* * * or countenancing of the same * * * , are altogether con-
trary to the laws of this realm, and so are and shall be utterly void
and of none effect. * * *

II. And be it further enacted, that all monopolies and all such
commissions, grants [&c.], and all other things tending as afore-
said * * * ought to be and shall be for ever hereafter * * *
tried and determined according to the common laws of this realm,
and not otherwise.



V. Provided nevertheless, * * * that any declaration before-
mentioned shall not extend to any letters patents and grants of
privilege for the term of one and twenty years or under, hereto-
fore made of the sole working or making of any manner of new
manufacture within this realm to the first and true inventor or
inventors of such manufactures, which others at the time -of the
making of such letters patents and grants did not use, so they be
not contrary to the law, nor mischievous to the state by raising of
the prices of commodities at home or hurt of trade, or generally
inconvenient, but that the same shall be of such force as they
were or should be if this Act had not been made. * * *



The Petition of Right 339

VI. Provided also, and be it enacted, that any declaration
beforementioned shall not extend to any letters patents and grants
of privilege for the term of fourteen years or under, hereafter to
be made, of the sole working or making of any manner of new
manufactures within this realm, to the true and first inventor and
inventors of such manufactures * * *

IX. Provided also, * * * that this Act * * * shall not in any
wise extend or be prejudicial unto the city of London or to any
city, borough or town corporate within this realm, for any grants,
charters or letters patents to them * * * granted, or for any cus-
toms used by or within any of them, or unto any corporations,
companies or fellowships of any art, trade, occupation or mystery,
or to any companies or societies of merchants within this realm
erected for the maintenance * * * of any trade of merchan-
dise . . .

X.-XTV. [Various special exemptions.]



189. The Petition of Right

(1628, June 7. 3 Charles L c. I. 5 S. Jt. 23. Gardiner, 66-70.)
To the King's Most Excellent Majesty.

HUMBLY show unto our Sovereign Lord the King, the Lords
Spiritual and Temporal, and Commons in Parliament assem-
bled, that whereas it is declared and enacted by a statute made in
the time of the reign of King Edward the First, commonly called
Statutum de tallagio non conccdcndo, that no tallage or aid shall
be laid or levied by the King or his heirs in this realm, without
the good will and assent of the Archbishops, Bishops, Earls, Barons,
Knights, Burgesses, and other the freemen of the commonalty of
this realm : and by authority of Parliament holden in the five and
twentieth year of the reign of King Edward the Third, it is de-
clared and enacted, that from thenceforth no person shall be com-
pelled to make any loans to the King against his will, because such
loans were against reason and the franchise of the land ; and by
other laws of this realm it is provided, that none should be charged