181. Act of Recognition of the King’s Title

GREAT and manifold were the benefits, most dread and most gracious Sovereign, wherewith Almighty God blessed this kingdom and nation by the happy union and conjunction of the two noble houses of York and Lancaster, thereby preserving this noble realm, formerly torn and almost wasted with long and miserable dissension and bloody civil war; but more inestimable and unspeakable blessings are thereby poured upon us, because there is derived and grown from and out of that union of those two princely families, a more famous and greater union, or rather a reuniting, of two mighty, famous and ancient kingdoms (yet anciently but one) of England and Scotland, under one imperial crown, in your most royal person * * * We therefore, your most humble and loyal subjects, the Lords Spiritual and Temporal and the Commons In this present Parliament assembled, do from the bottom of our hearts yield to the Divine Majesty all humble thanks and praises, not only for the said unspeakable and inestimable benefits and blessings above mentioned, but also that he hath further enriched your Highness with a most royal progeny, of most rare and excellent gifts and forwardness, and in his goodness is likely to increase the happy number of them: and in most humble and lowly manner do beseech your most excellent Majesty, that (as a memorial to all posterities, amongst the records of your High Court of Parliament for ever to endure, of our loyalty, obedience and hearty and humble affection), it may be published and declared in this High Court of Parliament, and enacted by authority of the same, That we (being bounden thereunto both by the laws of God and man) do recognize and acknowledge (and thereby express our unspeakable joys) that immediately upon the dissolution and decease of Elizabeth, late Queen of England, the imperial crown of the realm of England, and of all the kingdoms, dominions and rights belonging to the same, did, by inherent birthright and lawful and undoubted succession, descend and come to your most excellent Majesty, as being lineally, justly and lawfully next and sole heir of the blood royal of this realm as is aforesaid; and that by the goodness of God Almighty and lawful right of descent, under one imperial crown, your Majesty is of the realms and kingdoms of England, Scotland, France and Ireland, the most potent and mighty King * * *

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182. Commission For Negotiating a Union with Scotland

WHEREAS his most excellent Majesty hath been pleased, out of his great wisdom and judgment, not only to represent unto us by his own prudent and princely speech on the first day of this Parliament, how much he desired, in regard of his inward and gracious affection to both the famous and ancient realms of England and Scotland, now united in allegiance and loyal subjection in his royal person to his Majesty and his posterities for ever, that by a speedy, mature and sound deliberation such a further union might follow, as should make perfect that mutual love and uniformity of manners and customs which Almighty God in his providence for the strength and safety of both realms hath already so far begun in apparent sight of all the world, but also hath vouchsafed to express many ways how far it is and ever shall be from his royal and sincere care and affection to the subjects of England to alter and innovate the fundamental and ancient laws, privileges and good customs of this kingdom, whereby not only his regal authority but the people’s security * * * are preserved * * *: forasmuch as his Majesty’s humble, faithful and loving subjects have not only conceived the weight of his Majesty’s reasons, but apprehend to their unspeakable joy and comfort his plain * * * intention to seek no other changes, but of such particular, temporary or indifferent manner of statutes and customs as may both prevent and extinguish all future questions or unhappy accidents, by which the * * * friendship and quietness between the subjects of both the realms aforesaid may be completed and confirmed, and also accomplish that real and effectual union already inherent in his Majesty’s royal blood and person * * *: be it therefore enacted by the King’s most excellent Majesty, by and with the assent and consent of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled, and by authority of the same, that Thomas, Lord Ellesmere, Lord Chancellor of England [and 43 others named], commissioners selected and nominated by authority of this present Parliament, or any eight or more of the said lords of the said higher house and any twenty or more of the said knights, citizens and burgesses of the said house of the commons, shall * * * have full power * * * before the next session of this Parliament, to * * * treat and consult with certain selected commissioners to be nominated and authorized by authority of Parliament of the realm of Scotland * * * concerning such an union of the said realms of England and Scotland * * *; which commissioners of both the said realms shall * * * reduce their doings and proceedings therein into writings or instruments, * * * that thereupon such further proceedings may be had as by both the said parliaments shall be thought fit and necessary for the weal and common good of both the said realms.

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183. Act in Shirley’s Case

HUMBLY pray the Commons of this present parliament that, whereas Thomas Shirley, knight, which came by your Highness’ commandment to this your present parliament, being elected and returned a burgess for the borough of Steyning in your Highness’ county of Sussex, was upon the 15th day of March last past arrested by the sheriff of London at the suit of one Giles Simpson first upon an action of debt, and afterwards the same day laid and detained in execution upon a recognizance, of the nature of the statute staple, of £3000, in the prison commonly called the Compter in the Poultry in London, at the suit of the said Simpson, and from thence by Habeas Corpus was removed to your Majesty’s prison of the Fleet, * * * contrary to the liberties, privilege and freedom accustomed and due to the Commons of your Highness parliament, who have ever used to enjoy the freedom of coming to and returning from the parliament and sitting there without restraint or molestation, and it concerneth your Commons greatly to have this freedom and privilege inviolably observed; yet, to the end that no person be prejudiced or damnified hereby, May it please your Highness by the assent of the Lords spiritual and temporal and Commons in this present parliament assembled, and by the authority of the same, it may be ordained and enacted, That the said sheriff of London, the now warden of the Fleet, and all others that have had the said Thomas in custody since the said first arrest * * * may not nor shall in any wise be hurt, endamaged or grieved because of dismissing at large the said Thomas Shirley: saving always to the said Giles Simpson and other the persons before said, at whose suit the said Thomas is detained in prison, their executions and suits at all times after the end of this present session of parliament to he taken out and prosecuted as if the said Thomas had never been arrested or taken in execution, and as if such actions had never been brought or sued against him; saving also to your Majesty’s said Commons called now to this your parliament, and their successors, their whole liberties, franchises and privileges in all ample form and manner, as your Highness’ said Commons at any time before this day have had, used and enjoyed and ought to have, use and enjoy, this present act and petition in any wise notwithstanding.

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184. Opinions of the Court of Exchequer in Bates’ Case

[Baron Clarke] * * * 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 has 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. * * * As it is not a kingdom without subjects and government, so he is not a king without revenues. * * * The revenue of the crown is the very essential part of the crown, and he who rendeth that from the King pulleth also his 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. * * * True it is that the weal of the King is the public weal of the people, and he for his pleasure may afforest the wood of any subject, and he thereby shall be subject to the law of the forest; and 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. III, Cap. 4, which hath been so much urged, that no new imposition shall be imposed upon woolfells, 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. 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 himself 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 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, 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 common good; and these being general rules, and true as they are, all things done within these rules are lawful. 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. 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 argument for a subject. * * *

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185. The Case of Prohibitions

NOTE, upon Sunday the 10th of November in this same term, the king, 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 1 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 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, 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 judgments are given, ideo consideratum 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 spiritual and temporal, without the commons and in this respect the king is called the chief justice, 20 H. 7. 7a. 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 in judicio: 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.

And it appears by the act of parliament of 2 Ed. 3. cap. 9. [2 Ed. 3. cap. 1.] 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 11 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 1 H. 7. 4. for the party cannot have remedy against the king; so if the king 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 1 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 suspicion 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 is, judicia in curia regis reddita non nihil annihilentur, sed stet judicium in suo robore quousque per judicium curiae regis tanquam erroneum, &c. Vide West. 2. cap. 5. Vide le stat. de Marlbridge, cap. 1. Provisum est, concordatum, et concessum, quod tam majores quam minores justitiam habeant et recipiant in curia domini regis. Et vide le stat. de Magna Charta, cap. 29. 25 Ed 3. cap. 5. 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 any thing be done against it, it shall be void in law and held for error. Vide 28 Edw. 3. c. 3. 37 Edw. 3. cap. 18. Vide 17 R. 2. ex rotulis parliamenti in Turri art. 10. 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 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 art 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.

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186. Judgment in the Case of the Post-nati, or Calvin’s Case

* * * THUS I have here delivered my concurrence in opinion 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 England.

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187. The Case of Proclamations

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 present 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 and his judges, and then he will 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, viz. 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., after my time of attorneyship: and for these reasons I did humble desire 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 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 he 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. But at this time I only desired to have a time of consideration and conference with my brothers, for deliberandum est diru, 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 he had of this upon conference with my brethren, for that melius est recurrere, quam male currere; and that indictments conclude, contra leges et Statuta; but I never heard an indictment to conclude, contra regiam proclamationem. At last my motion was allowed; and the lords appointed the two chief justices, chief baron, and baron Altham, to have consideration 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, II Hen. 4. 37. Fortescue De laudibus Angliae legum, cap. 9. 18 Edw. 3. 35, 36, &c. 31 Hen. 8. cap. 8. hic infra: also the king cannot create any offence by his prohibition or proclamation, 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 imprisonment, 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 Angliae, 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 quae 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 8 Hen. 4. Proclamation in London. But 9 Hen. 4. an act of parliament 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.

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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; 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.

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188. Act against Monopolies

FORASMUCH as your most excellent Majesty, in your royal 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 declaration is truly consonant and agreeable to the ancient and fundamental 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 pretences 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 toleration 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 contrary 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 aforesaid * * * ought to be and shall be for ever hereafter * * * tried and determined according to the common laws of this realm, and not otherwise.

[Part omitted]

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, heretofore 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. * * *

[Part omitted]

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 customs 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 merchandise . . .

X.-XIV. [Various special exemptions.]

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