Abbot, George, Archbishop of Canterbury, 372, 406, 436 Abdication

Cambridge University Press 978-1-107-18705-4 — The Reinvention of Magna Carta 1216–1616 John Baker Index More Information

INDEX

Abbot, George, archbishop of adultery, punishment of, 139–41, 290, Canterbury, 372, 406, 436 372 abdication of the crown, not legally advowson, usurpation of, contrary to possible, 342 Magna Carta, 61; see also abridgements of cases, 77, 345 commendams; quare impedit absolutist monarchy: Francis Bacon Agmondesham, John, of Middle and, 305–7; the Church of England Temple, imprisonment of, 166, and, 137, 293, 350–1; Civil lawyers 495–6 and, 20, 119, 391–2; discretionary aid prayer of the king, 94, 181 rule and Magna Carta, 357; Lord alderman, office of: as a liberty, 396; Ellesmere and, 345; James I and, restoration to, by mandamus, 205–6, 339–40; medieval popes and, 3, 9, 30, 396–8, 488 120; see also under prerogative, royal Alexander II, king of Hungary, 41 (absolute prerogatives) Alexander III, king of Scotland, actions founded on Magna Carta: 299–301 authorised implicitly by the charter, Alfield, Thomas, Jesuit missionary, 129 429, 503; authorised by aliens, 34, 112, 191, 203, 431; when Marlborough, 49, 94–5; damages in, bound by English statutes, 105 353; first brought in the King’s Bench alimony see under husband and wife (1501–32), 97–9, 456–62, 503; new (suits for maintenance or alimony) formula including false Allen, Thomas, cardinal, 129 imprisonment (1606–7), 310, Allen, Thomas, haberdasher, 320 352–3, 514–16, 531–3; may be Altham, Sir James, B., 394 brought in the Common Pleas, 507; amercement, 88; of earls and barons, revived in the Common Pleas (1595), 92–3, 452 277–8, 484–7; suit stopped by the America see United States of America Privy Council, 277–8, 487; used in Anabaptists, 131 respect of a Chancery suit, 377, 462 ‘ancient constitution’, 444–5 Acts of Parliament see statutes Anderson, Sir Edmund, CJCP: and Addled Parliament (1614), 407–8, 427; Magna Carta, 250, 276; complains of thought to be the last parliament ever abuses by conciliar jurisdictions, 210, (1616), 421 303; mentioned in will of Robert Adgore, Gregory, of Inner Temple, 77, Snagge, 276; warns of danger of 96 encroachments by Requests, 485, 487 Admiralty, Court of, 166, 209–10, 430, Andrews, Euseby, of Lincoln’s Inn, 23 516; follows Civil law, 454–5; origin Anger, Richard, of Gray’s Inn, of, 306 suspected of murder, 170

542

index 543

Annesley, Brian, warden of the Fleet, harassment by Council in the North, 165, 179 380; put in stocks, 352–3, 531 Anstis, John, Garter King of Arms, 234 Atwell, Walter, of Gray’s Inn, 76 Antigonus I, king of Macedonia, 147, Aubrey, Andrew, lord mayor of 473 London, executes a miscreant appeal of death, by a woman, 85 without trial, 478, 480–1 appeal of felony, against a peer, 39, 92, Audley, Thomas, of Inner Temple, 455, 464, 510 later Baron Audley, lord chancellor, apprentices, 203, 323 217, 462, 505 Aquinas, Thomas, advocate of religious intolerance, 122 Babthorpe, Leonard, of Middle Temple, arbitrary rule see absolutism; discretion 137–8 arcana imperii, 145, 401; ‘the mysteries Bacon, Sir Francis, of Gray’s Inn, later that keep up states’, 306 Baron Verulam: appointed king’s Arches, Court of, 139 counsel extraordinary (1594), 305; Arden, Mary, 182 appointed a Privy Councillor in order Arianism, 131, 294–5 to bring down Coke (1616), 420; aristocracy, undesirability of appointed LK (1617), 440; on government by, 256, 306 benevolences, 407–8; compared with armour, obligation to ﬁnd, 257 Coke, 440–1; complains against the arrest see false imprisonment; warrant judges, 383, 425; on the Council in the for arrest Marches, 305–7; defends monopolies, Articles of Religion, 134, 525 197; defends Star Chamber power to Arundel, earl of, see FitzAlan award damages, 404; on impositions, Arundel, Sir John, 154 329; on imprisonment, 361; on the Arundel, Thomas, archbishop of king’s judicial capacity, 306; on Canterbury, 63 ‘novelists’ and papists, 131; objects Arundell, John, of Quarnack, 264–5 to counsel speaking against the Ashley, Francis, of Middle Temple: prerogative, 422–3; opinion on the reading on chapter 29 of Magna Carta Bridewell charter wrongly attributed (1616), 427–35; defender of royal to, 241; on proclamations, 154; prerogative under Charles I, 434 proposes removal of independent- assizes: availability of habeas corpus at, minded judges, 419; prosecutes a 163; commissions read in public, barrister for impugning the 135; jurisdiction over darrein prerogative, 400–1; scheme to presentment and quare impedit, codify the law, 344–5; suggests despite Magna Carta, 22; jurisdiction summary dismissal of Coke, 436; over recusancy, 134; prohibition lies supports absolutist monarchy, to, 376 305–7, 345, 440–1; suspected of Athelstan, king of England, laws of, 85 spying on the Commons, 427; on the attainder of treason, without trial, 32, two kinds of prerogative, 306; on 36, 67–8 the value of ‘tenures of favour’ and attorneys: their appointment saves ‘personal dependences’, 306 litigants the hardship of travel, 136; Bacon, Sir Nicholas, LK, 157; creation committed for suing an action of Subpoena Ofﬁce, 423; contrary to injunction, 210; imprisonment by, 265; on Chancery interference with profession of, 49; jurisdiction, 211; tolerant of Northern attorneys complain of nonconformists, 134

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Badlesmere, Bartholomew, Baron Berwick-upon-Tweed, subject to the Badlesmere, 53–4 King’s Bench in England, 299–301 Bagg, James, alderman of Plymouth, bible, English, possession of, evidence 396–7 of heresy, 116 Bagshaw, Edward, of Middle Temple, bigamy, canonical, 83, 111 108, 115, 375 Bill of Rights (1689), 449 bail and mainprise, 136, 161, 290, 476, Bilney, Thomas, 122 503; bail for prisoners of the Council, Bindon, Viscount, see Howard 401 bishop: absence from Parliament Bancroft, Richard, archbishop of punishable in King’s Bench, 503–4; Canterbury, 134, 355, 360, 366 not triable by peers, 463–4 banishment see exile Black Death, 34, 51 bankruptcy commissions, 242 Blackstone, Sir William, edition of baptism: godparents addressed in Magna Carta, 1, 4, 10 singular, 259; sign of the cross, 129, Blackwall, Richard, of Inner Temple, 134, 142 reader of Clement’s Inn, 101 Bar see barristers; counsel; serjeants at Board of Green Cloth, 325–7 law Bodin, Jean, 249 Bardolf, John, Baron Bardolf, 61 bonds, penal: to abide by order of court, Barnstaple, Devon, mayor called a fool, 378, 389; relief against, 103 201 Boniface of Savoy, archbishop of barrister: acting as a solicitor, 239; call Canterbury, 18 to the bar, 70, 313, 402, 475; Bonner, Edmund, bishop of London, exemption from burdensome local 160 offices, 432–3; see also counsel Book of Common Prayer, 134, 142, Bate, John, importer of currants, 358, 374, 529 328–31 Bowes, Robert, monopolist, 320 Bayfield, Richard, 121 Bowes, Sir William, 179 Baynham, James, of the Temple, 122 Brackley, Viscount, see Egerton, Beale, Robert, clerk of the Council, Thomas 259–60, 271–2, 274 Bracton: cited in late-medieval Beauchamp, Thomas de, earl of readings, 79, 85, 223, 227; cited by Warwick, 63 Coke, 344, 367; cited by Fleetwood, Beaufort, Lady Margaret, mother of 228, 244; cited by Snagge, 252; on the Henry VII, 229 king being bound by the law, 180; on Belknap, Robert, CJCP, exile of, 478, the king being under God and the 509 law, 43, 48, 87, 344–5, 367; on Bell, Robert, of Middle Temple, 189 sanctions against the king, 42; benefice, ecclesiastical, see advowson; printed edition of, 144, 367–8; says commendams; quare impedit the law cannot destroy a man, 408 benefit of clergy, 30–1, 81, Brearley, Henry, 299 111–12, 119 Brereton, Richard and Thomas, 403 benevolences and forced loans, 185–6, brewing, monopoly of, 319 407–9 bribery, 40, 98, 440, 465 Benn, Anthony, of Middle Temple, 430 Bridewell Prison, 212, 241–3, 245, Bereford, William de, CJCP, 47 266–9 Bertie, Robert, Baron Willoughby Bristol, city, 308, 325–6 d’Eresby, 299 Britain, ancient, law in, 86, 223, 225

index 545

Brooke, Ralph, York Herald, 375 inquisitorial procedure; provincial Brooke (Broke), Sir Richard, JCP, later constitutions CB, 79, 104 Canons Ecclesiastical (1604), Brooke, Robert, of Middle Temple, later 297–8, 521 CJCP, intolerant views of, 112 Canterbury (province), Audience Court Browne, Sir Anthony, JCP, on the of, 120, 139 succession, 231 Canterbury, Kent, unlawful custom Browne, Humphrey, sjt, later JCP, concerning butchers in, 318 imprisonment of, 100–1, 399 Canute see Cnut Brownlow, Richard, chief prothonotary capias, writs of, 92, 101, 453–4 of the Common Pleas, 422–4, cards see playing-cards 484 Carew, Martha, widow of Sir Wymond, Brut, legendary king of Britain, 86, 223, 160 225 Carew, Thomas, Presbyterian minister, Bulkeley, Sir Richard, 212 160 Burcot, Dr, see Kranich, Burchart Carey, Henry, Baron Hunsdon, lord bye-laws, 202–3, 311–18, 338, 432–3, chamberlain of the Household, 468–76, 487–9 165–6, 495 Carr, Robert, earl of Somerset, 436 Caesar, Dr (later Sir) Julius: chairs castle, widow’s right to remain in, 71, tribunal on Darcy’s monopoly, 320; 89 master of requests, 277, 279, 282; castle-ward, 84, 112 minutes proceedings in the Privy Catcher, John, sheriff of London, Council, 369, 383; on the antiquity of 266–9 the Star Chamber, 405 Catesby, William (d. 1479), of Inner Caesar, Thomas, 399 Temple, 72 Calais, habeas corpus to, 496 Catesby, William (d. 1485), of Inner calamine stone, 193–4 Temple, 75 Calthorpe, Henry, of Middle Temple: Catlyn, Sir Robert, CJKB, 121; awards on Coke and the reasons for his habeas corpus for a recusant, 160; dismissal, 436–7 on the supremacy of the King’s Cambridge, Cambs: bailiff of, restored Bench, 159; on absolute and ordinary to ofﬁce, 205; Tolbooth prison, 205 prerogatives, 144 Cambridge University: attempt to Cave, Sir Ambrose, chancellor of the suppress theological enquiry at, 121; duchy, 158, 242 custom of imprisoning prostitutes, Cavendish, Richard, MP, 266 268; Magdalene College, 416; Caversﬁeld, Bucks, manor of, 176 Pembroke College (Valence Mary Cawdray (Caudrey), Robert, Hall), 61; writ of protection against nonconformist minister, 141–3 the town, 107 Cecil, Robert, earl of Salisbury, 183, Camden, William, discourse on the 273, 330, 341, 370, 422 prerogative, 434, 444 Cecil, William, Lord Burghley, 134, Campion, Edmund, Jesuit priest, 130, 254, 256, 260, 268–70, 273, 341, 153 520 canon law, 110; commission for review Certain Errors upon the Statute, 231 of, 221, 521, 523; common law and, certiorari, to quash orders of quarter 113–14; not lex terrae, 429; treated as sessions, 201, 338 foreign law, 137, 521, 527; see also Chagos Islanders, 448

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Chambers, Henry, 296 Chapel Royal: conscription of boys for, chancellor of England (lord chancellor): 170; dean of, as judge of requests, an ‘arbitrary disposition’ entrusted to 459, 461 him, 411; as the instrument of the Chauncy, Sir William, 372–3 king’s prerogative, 421; as keeper of Chelmsford, Essex, oyer and terminer the king’s conscience, 411; ordinary at, 58 and extraordinary power of, 413; the Cheney, —, nonconformist minister, sole judge of equity, 411; see also 139–41 Chancery; Bacon; Egerton; equitable Cherry Island (Bear Island), near jurisdiction Norway, 192 Chancery: assault on a clerk of, 50; Chester, county palatine of, 105, 211, commission from, held illegal, 387; chamberlain of, 387; Chancery 59–61; fees for its clerks, 453; see also of, 386; chief justice of, 304 writs ‘chief justice of England’, as title of Chancery, Court of: always open, CJKB, 438 411; appeal to judges delegate, 288; Chisnall, Richard, of Gray’s Inn, 105 attempt to restrict its jurisdiction in Church of England, separated from the fourteenth century, 52; Roman jurisdiction: chapter 1 of depositions in, 430; dispute Magna Carta and, 30–1; historical between Coke and Ellesmere over, research and, 220–1; not a new 410–21, 426; follows conscience church but a continuation of the old, rather than lex terrae, 455; growing 111, 295–6, 298; purpose of Henry activity under Henry VIII, 101; VIII’s legislation, 357, 522; see also habeas corpus for prisoners of, Ecclesia Anglicana; Reformation 162–3, 412–18, 462; injunctions after Parliament; supremacy judgments at law, 338, 378, Church see also canon law; 414–21; injunctive power, 212–14, Convocation; ecclesiastical 284–9; limits on its jurisdiction, 36, jurisdiction 102–3, 288–9, 339, 411; Church, English, see Ecclesia Anglicana jurisdiction operates in personam, churches, not legal persons, 83 485; not a court of record, 287, 386; churchwardens: custom as to, 297; ofﬁcina justiciae, 411; origin of, 349, imprisonment by, 352 407; petitions to, 50; prohibition to, Cinque Ports: habeas corpus sent to, 376–7, 412; represented by 168; lex terrae and, 454; prohibition Ellesmere as the ‘very treasury of to, 376; unlawful custom of the ancient prerogative’, 419; withernam, 26–8, 317, 489–94 serjeant at arms may not break into a cities and towns: prescription against private house, 433; Star Chamber mortmain legislation in, 24–9, 491; decree as to its jurisdiction (1616), summary jurisdictions in, 301, 478, 420–1; Subpoena Ofﬁce, 423; 480; see also alderman; London; suits become ‘immortal’ after urban disputes 1616 decree, 420; whether Civil law: absolutism associated with, relief must be sought before 20, 119, 391–2; doctors of, 106, 110, judgment at law, 417; see also 210, 475; jurisdiction may not be conscience; equitable jurisdiction granted by the king, 385; regarded and procedure as foreign, 113; time wasted in Channel Islands: law in, 300–1; writs universities studying ‘the emperor’s sent from King’s Bench to, 302 law’, 66; torture and, 170–1;

index 547

used in the Admiralty and Marshal’s Carta, 335–9; report of Cawdray’s Court, 454–5 Case (1605), 141, 295–6, 370; Clement V, pope: orders the torturing reports continued under James I, of the Templars, 117; purports to 343–4 annul Magna Carta, 9, 120 Coke, Sir Edward, CJCP and CJKB: Clement’s Inn, reading in, 101 appointment as CJCP (1606), 351; clergy: adultery by, 372; cannot make appointment as CJKB (1613), 351, laws against the law of the land, 524; 386; accused of manufacturing division between the clergy and myths, 442–7; accused of saying that lawyers after Fuller’s case, 362; Chancery injunctions would examinable on oath as to questions overthrow the common law, 426; of religion, 359, 374, 522; insolence attitude to heresy, 294–5; attitude to towards, 296–7, 364; laying violent history, 347–51; brought down by hands on, 18, 50; must be free men, Bacon’s machinations (1616), 420, 83; only partly bound by Magna 426, 435–8; praised as worthiest Carta, 33, 114, 119; ordination, CJKB since the Conquest, 437; control of, 104–5; whether they refuses to give extrajudicial opinion should wear gowns or surplices, 259; on case pending before him, see also benefit of clergy 425–6; summoned to justify his Clifford’s Inn, 217 decisions to the king, 379, 385; Cnut, king of England, 80, 85, 225 tried to balance law and prerogative, Cobham, John de, Baron Cobham, 63 437, 441 Cobham, Lord, see also Oldcastle, Sir Coke, Sir Edward, in general: John character of, 437–8; compared with codification, dangers of, 344–5 Bacon, 440–1; his copy of Bracton, cognizance of pleas, may be granted by 367–8; criticisms of his reports, 90, the king, 468 314, 397–8, 435; election as sheriff of Coke, Edward, of Inner Temple: Bucks, 295; mentioned in the will of prominence at the Bar, 335; cites Robert Snagge, 276; ownership of Magna Carta (1588), 482–3; Dyer’s notebooks, 157; torture and, representation of nonconformists, 172; use of history by, 138; speaker of the Commons, 273 405–6, 443–4 Coke, Sir Edward, as a law officer of the Coke, Sir Edward, specific opinions and crown, 277: appointment as solicitor- arguments of: on acts of king de general, 336; appointment as facto, 408–9; on the antiquity of the attorney-general, 148–9, 336; argues common law, 15–16, 444; on in support of the High Commission, benevolences, 408–9; on common 138; argues against an ordinance in law as artificial reason, 367; on the restraint of trade, 316–17; attacks Council in the North, 380–1; on the purveyance, 324–8; attempts to ‘craft of the prelates’ in keeping a control monopolies, 197–8; statute from being printed, 116; on attempts to prevent abuse of the dangers of law reform, 344; on concealments, 200–1, 338; collects declaring statutes void, 90; defence of habeas corpus cases from common law and constitutional controlment rolls, 265; extols the monarchy, 440–1, 446–7; defence of King’s Bench, 283; memorandum on prerogative writs of supersedeas, chapter 29 of Magna Carta (1604), 182–3; on delegability of 346–7, 500–10; reliance on Magna prerogatives, 145; denies the

548 index

authority of Star Chamber to award without a jury, 157; to investigate damages, 405–6; on discretion, 99, offences against Magna Carta, 99; to 338; on ecclesiastical jurisdiction, punish prostitutes in Bridewell 363–4; on Elizabeth I, 149; without due process, 245, 266–9; for encomiums of Magna Carta, 1; on purveyance, 325; for sequestration of the enforceability of Magna Carta, goods, 280; must not be contrary to 46; on the entrenchment of Magna law, 44–6, 68, 208, 291, 331, 519; Carta, 21–2; on freedom of ought not to be secret, 135, 208; conscience, 130, 132, 365; on James subject to review by the King’s I and law books, 369; on jurisdiction Bench, 308–9; to relieve poor of Chancery, 410; on the King’s debtors, 164, 167, 283; unlawful Bench and its supremacy, 302, 308– commission condemned by the 11, 339, 386–7, 397–8, 412, 504, 519; Commons as threatening slavery on the king’s judicial capacity, 39, (1378), 60–1; when goods may be 344; on the law in Berwick, 299–300; taken under, 475; see also assizes; on legislation by proclamation, 394– High Commission 5; on Magna Carta as common law, common law: as artiﬁcial reason, 367; 14–17; on the misuse of penal as general custom, 433; as the legislation touching religion, 128; on inheritance of every subject, 146, monopolies, 317, 329; opposes the 291, 312, 332, 338; contrasted with use of the heresy law, 131; on legislation, 14; courts of, and lex ordinary and absolute prerogatives, terrae, 454–5; dearer than any other 144–6; on peers of commoners, 300; possession, 508; depriving the subject on prerogative writs and the King’s of, a disseisin, 332; early schools of, Bench, 308–11, 512–13; on 69; immemorial nature of, 77, 85–6, proclamations, 153; on prohibitions, 223–6, 252, 349; nature of, 13–16; no 22, 376–7, 383–4; on recusancy, 127– subject can be barred from his 8; respect for Star Chamber, 403; on inheritance in, 261, 468; three right and justice, 94; on the rule of interpreters (sources) of, 519 law and the prerogative, 345–6; on Common Pleas, Court of: origin of, 81, trial by jury, 38, 300; on teaching 306; chief prothonotary of, 266, Magna Carta in the thirteenth 422–4; exigentership in, 156; century, 70 conservatism of, 276; could prohibit Colchester (‘Gloucester’), Essex, castle, the King’s Bench from hearing 58 common pleas, 376, 384; dispute collection of offerings during a church with the Exchequer, 179; jurisdiction service, punishable, 374 inferior to the King’s Bench, College of Physicians, 313, 475, 525 351–2; jurisdiction to award habeas Colshill, Robert, 156 corpus, 157, 354, 496, 507; commendams, 424, 436 jurisdiction to grant prohibitions, Commissioners for Ecclesiastical 280, 282, 378, 384, 387; see also Causes see High Commission under words and phrases (communia commissions: for bankrupts, 242; to placita) arrest Lollards, 116; to arrest or communion see mass; sacrament examine malefactors without concealments of crown lands, 200–1, indictment, 242, 479; to charge body, 338 lands or goods, 58–60, 357 conciliar jurisdictions, 206–14, 258, 470, 486, 501; to determine a title 379–90; not delegations from the

index 549

king but direct assistances to the corporations: how far they may make king, 306; see also Council; Privy laws, 469–71; nature of, 473; see also Council; Requests; Star Chamber bye-laws; London livery companies confession, as evidence of guilt, 172; see corpus cum causa, 281 also oath ex ofﬁcio Cosin, Dr Richard, president of conquest, legal consequences of, 105, Doctors’ Commons, 161, 171, 256, 300–1, 342, 515 274, 298 conscience (as the basis of Chancery Council at York see Council in the jurisdiction), 103; conforming ‘the North corrupt conscience of the party’, Council in the Marches of Wales: 286–7, 416; distinguished from lex authorised by commission to use terrae, 455; the king’s conscience, torture, 171; Gatehouse prison, 411; mitigation and moderation of 309–10, 514; habeas corpus for its the rigour of the law according to, prisoners, 209, 302–11, 339, 507, 501 511–14; injunctive power, 302–11, conscience (in matters of belief and 511–14; jurisdiction curbed by Coke, intellectual judgment), freedom of: 437; jurisdiction over the four Coke’s views on, 130, 132, 365; English counties, 304–5, 307, 381, Elizabeth I and the saying ‘no need to 386, 514–15; oppressive make windows into men’s hearts’, imprisonment by, 173, 514; prison 125; James I and, 366; ‘not called ‘Little Ease’, 308, 514; process convenient to enforce consciences’, by subpoena from, 100 125; not recognised by the medieval Council in the North: habeas corpus for Church, 111; ‘thought is free’, 260, its prisoners, 84, 209, 506; injunctive 365; see also religious toleration power, 303; jurisdiction curbed by conscription see impressment Coke, 437; origin of, 380–2; Constable and Marshal, Court of, 426; prohibitions to, 305–6, 379, 381–2, see also Earl Marshal 384 constables, powers of, 39, 41, 470, Council Learned in the Law, 100 475–6 Council see King’s Council; Privy constitutional learning, in the inns of Council court, 86–8, 101–9, 144 counsel: assigned by the court, 359–60; conventicles, schismatical, 356, 374, censured by the Privy Council for an 521, 529 opinion against the prerogative, 401; Convocation of the Clergy: heresy and, complaint of being ‘watched’, 412; 294; how far it may bind the laity, freedom to argue against the king’s 106, 114 commissions and grants, 359–60; Coppin, Sir George, clerk of the crown freedom to argue against the in Chancery, 435 prerogative, 422–3; immemorial Cornwall, stannaries of, 193, 303 custom to represent clients freely, coronation oath: binds the king to 359–60; imprisoned by the LC for observe the law, 381, 407, 480; binds drawing an indictment of the king’s judges to do justice on his praemunire, 214; imprisoned by the behalf, 525; constitutional Privy Council for an opinion signiﬁcance of, 64; deposal of questioning the prerogative, 400–1; Richard II predicated on breach of, James I tells judges to stop barristers 63; said to include the observance of arguing against the prerogative, 425; Magna Carta, 20–1, 252–3 punished for contempt, 137–8, 434;

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punished for intemperate speech, titles dependent on matter of record, 359–60; restrained by injunction, 43–4, 189; see also abdication; 212–13, 283, 485–6; stopped from concealments of crown lands; king; speaking against the prerogative, law of the crown; prerogative 385–6, 404; unseemly for them to be curia militaris, 64 ‘afraid of every frown’, 142; see also customary courts, lex terrae and, 454 attorney-general; barristers; king’s customs, general (customs of the counsel; serjeants realm): common law and general counties: attributed to King Alfred, 306; custom, 433; custom for counsel to regulation by Magna Carta, 79 represent clients freely, 359–60 counties palatine see palatinates customs, local: custom to arrest for courts see Admiralty; Arches; battery, contrary to Magna Carta, Chancery; Council; High 481–4; custom to arrest for Commission; Privy Council; contempt, contrary to Magna Carta, Requests; Star Chamber; Wards; and 476–81; custom to punish one man courts of common law for the fault of another, contrary to courts of common law: origins of, Magna Carta, 26–8, 489–94; due 223–4, 226; reading on, 77; see also process varied by, 263; judicial Common Pleas; Exchequer; King’s review of, 473; monopoly established Bench by, 192; mos antiquus, 226; Coventry and Lichﬁeld (diocese), prescription against a statute, 24–9, bishop of, 424 263; reasonableness, 147; not Coventry, Thomas, of Inner Temple, abrogated by a statute conﬁrming the 316; passed over as CJKB because too common law, 25–6; triable by jury, close to Coke, 438 297; usage and, 483 Cowell, Dr John, regius professor of customs duties, 52, 184; see also Civil law, on absolute monarchy, 20, impositions 391–2 Cranach see Kranich Dale, Matthew, of Middle Temple, 142, creed, not standing for, 359 205 criminal offences: crimen stellionis, 478; Dalton, James, of Lincoln’s Inn, 174, invention of, by proclamation, 273 394–5; invention of, by the Star damages: exemplary, in an action on Chamber, 154, 211; see also treason Magna Carta, 353; in Star Chamber, Croke, George, of Inner Temple, 142; 404 argument in Maunsell’s Case, 358; Daniel, William, of Gray’s Inn, complains of being watched, 412 471–2 Crompton, Richard, of Middle Temple: Darcy, Edward, groom of the chamber on jury trial as trial by peers, 38; on and monopolist, 183, 196, 319–23 the queen of Scots, 255; on Magna Davenant, Edward, merchant tailor, 315 Carta, 260–1; on the queen’s courts, Davenport, Humphrey, of Gray’s Inn, 208–9 329 Cromwell, Oliver, disdain for Magna Davies, John, of Middle Temple, Carta, 23 treatise on impositions, 331 Cromwell, Thomas, Lord Cromwell, 32, de excommunicato capiendo, writ, 114, 161, 221, 505 522 crown: inquisition into crown titles, de heretico comburendo, writ, 100; rights of, reading on, 255–8; 114, 361

index 551

de homine replegiando, writ, ordinary prerogatives, 144; on 46, 496–8, 502–3, 521 artificial reason, 367; proposes de moderata misericordia, writ, 95 reform of the High Commission, de vi laica removenda, writ, 298, 502 355; Sol.-Gen., 329 Deane, Henry, archbishop of double jeopardy, 139 Canterbury, 457 dower, 81, 466 debtors: liability of a gaoler for the Drake, Richard, monopolist, 319 escape of, 164–5; see also under Dudley, Edmund, of Gray’s Inn, commissions (to relieve poor 77, 99–100, 203 debtors) Dudley, Robert, later earl of Leicester, defamation, 135, 143, 221, 365, 430; 156, 266 imprisonment for, 314, 488; ‘papist’ due process of law: action founded on not defamatory, 126; see also under statute of, 460–1; bill procedure and, clergy (insolence towards) 33, ‘defender of the faith’, royal title, 116, 66–7, 103, 502; the Church and, 121 18, 33, 119, 122–3; as a clarification delays in litigation, when justified, 181, of chapter 29 of Magna Carta, 183, 425 40–2, 51; confused with jury trial, 37; delegated legislation, 152 customary exceptions to, 26–8, 493; democracy, dangers of, 256, 407 equated with natural justice, 450; Despenser, Hugh le, earl of Winchester, equated with ordinary common-law 52 procedure, 59–61, 92, 448; Dethick, Sir Willam, Garter King of explained by Coke, 500–2; Arms, 204 expression in use before the Devereux, Robert, earl of Essex, 1354 statute, 51–2; not always expedition to Ireland, 145–6, 337 required, 41, 92, 247, 263; oath Dialogus de Scaccario, 224, 227 ex officio inconsistent with, 260, dignity, ranks of, 225 272–3; ordo judiciarius, 41; discretion: discretionary decisions United States version of, 35, 450; reviewable by the courts, 99, 338; used in the palatinates, 387; see also discretionary government contrary the Table of Statutes (28 Edw. III, c. to Magna Carta, 357; discretionary 3, and 42 Edw. III, c. 3) powers may only be granted by Dunn, Dr Daniel, 298 Parliament, 242–3; ‘the uncertain duress: ambivalence of canon law and crooked cord of discretion’, towards, 117; effect on Magna Carta, 100 3, 117, 333 disparagement of wards see under Durham, county palatine of, wardship 105, 387 dispensing and suspending power, Dyer, Sir James, CJCP: judicial royal, 187–90, 246, 320–1, 391–2, conservatism, 276; habeas corpus 432, 468 and, 121, 156–63; mandamus and, disseisin: of a free tenement, 36; of 204; on access to the courts and liberties, 431–3; of an office, 266, 422 Magna Carta, 249–50; questions a Diversité de Courtes, 412 Chancery injunction, 162; divorce jurisdiction, 141, 209 questions a prerogative power to Dodderidge, John, of Middle Temple: release parties from execution, 180; asked to write a treatise on the questions prerogative protections, prerogative, 249; on absolute and 175–7

552 index

Earl Marshal of England, Court of, 64, directed, 411; likens questioning the 430, 455; see also Constable and prerogative to sacrilege, 381; his Marshal malice towards Coke, 436; Ecclesia Anglicana: grant of liberties to, praemunire against, 418; regarded 29–31, 65, 110–11, 119–20; not a as the enemy of the common law, legal person, 83 439–40; says men in high office Ecclesia Romana, 30–40, 111, 120 should avoid popularity, 438; sends ecclesiastical jurisdiction: common law law officers to confute and reprove will not interfere with a final decree, the chief justices, 385; speech in the 140–2; effect of Magna Carta on, 33, Star Chamber about religion (1605), 114, 119; no power at common law 293; speech on swearing in Montagu to fine or imprison, 114, 373, 430, CJKB (1616), 438–9; supports the 518, 521; readings on, 81; see also absolutist views of James I, 345; High Commission; prohibitions supports legislation by proclamation, Edward I, king of England: 154, 394; religion and, 126, 130; tract confirmation of Magna Carta in his on the prerogative, 145; treatise on name (1297), 8–12; confirmation of statutes wrongly attributed to, 234; Magna Carta (1301), 8, 20–1 on the varieties of proclamation, 151; Edward II, king of England: deposition willing to imprison barristers for of, 49, 63; murder of, 342 representing clients contrary to Edward III, king of England: injunctions, 213 confirmations of Magna Carta by, 50; Eleutherius, pope, forged letter of, 223 judges in his time, 57–8, 60 Elizabeth I, queen of England: attempts Edward the Confessor, king of England, to influence private lawsuits, 286, laws of: confirmed by Henry I, 14; 303; attendance at a reading, 225; confirmed by William I; confirmed disapproves of lay criminal by and embodied in Magna Carta, jurisdiction over ecclesiastical judges, 15–16, 446, 463, 532; cult of, 14; 139; forbids Parliament to discuss embodied the old common law, 226, matters of state, 273; ‘Golden Speech’ 445; mentioned in coronation oath, (1601), 198–9, 318; judicial 21; see also Leges Edwardi Confessoris confidence in her commitment to the Egerton, Sir Richard, 403 law, 148–50; martial law under, 430; Egerton, Sir Thomas, LK, later Baron monopolies and, 197–9; national Ellesmere LC, and Viscount pride during her reign, 258, 270; Brackley: accused of pursuing private purported deposal by two popes, 127; ends in contempt of the common religious toleration and, 125, 128, law, 421; advises judges to maintain 130, 293; speech to Coke as attorney- the prerogative, 394; alarmed by general, 148–9, 336; speech to Coke democracy, 407; on benevolences, as solicitor-general, 336 408; character of, 439–40; claims that Ellesmere, Lord, see Egerton, Thomas LC is answerable to the king alone, Eltonhead, John, of Lincoln’s Inn, 74 411; criticises Coke’s reports, 90, 314, Empson, Richard, of Middle Temple, 397–8; defends injunctions after 97, 99–100, 203, 242, 460 judgment, 286–9, 416–17; on entrenchment of legislation, 12–13, 17, Elizabeth I, 149–50; informs James 21–2, 87, 244, 357 I that his prerogative transcends the equitable jurisdiction: as lex terrae, common law, 421; informs James 251–2, 410, 417, 430; derived (in the I he would decree whatever he case of Chancery) from Magna

index 553

Carta, 212; derived (in the case of 358, 527; another argument on the Chancery) from the absolute oath ex officio, 374 prerogative, 211, 411; equitable Finch, Sir Moyle, 284–5, 288 procedure as due process, 410, fishing: the right to fish in the sea, 193 501–2; immune from appeals, 377; FitzAlan, Richard (d. 1376), third earl may not be conferred by charter or of Arundel, 50, 57 patent, 265–6, 305, 379–80; may not FitzAlan, Richard (d. 1397), fourth earl be prescribed for, 28–9; not derived of Arundel, 63 from canon law, 113; see also Fitzherbert, Sir Anthony, JCP, 76, 107 Chancery; injunctions Fitzjames, Sir John, CJKB, retirement equity: Elizabeth I and, 148; of a statute, of, 436 233; two meanings of, 113 Fleet Prison, warden of, 164–5 evidence, law of, 172 Fleetwood, John, 234–5 Exchequer: barons of, 93, 452; penalties Fleetwood, Robert, of Middle Temple, from the High Commission estreated 216 in, 290, 296 Fleetwood, William, of Middle Temple, Exchequer, Court of: controversial later sjt, 216–48; as a collector of decision as to impositions, 328–31; manuscripts, 218–19; as a legal dispute with the Common Pleas, 179; historian, 149–206, 218–19; his dispute with the King’s Bench, 163; Annalium, 219–20; on the antiquity jurisdiction to award habeas corpus, of the common law, 444–5; 507; prerogative protections issued argument against the Tallow by, 171; prohibited from hearing Chandlers’ charter, 240, 243, 245; common pleas, 376; said to be the argument in support of the Joiners’ original royal court, 224, 306 charter, 240, 245, 472–6; arguments excommunications, general, in draft, 238–41; on bishops, 222; pronounced against infringers of Certain Errors attributable to, 231; Magna Carta, 17–20 cites Magna Carta against himself, execution of process see process 247, 477–81; commentary on Magna exile, 52–3, 56, 250, 448, 478, 509 Carta by, 216, 226–32, 463–7; on common informers, 134; his false imprisonment, action of: against a constitutional approach, 245–6; on judge of requests, 279; against the customs of London, 25, 29; his mayors, 201, 476; provides a remedy Instructions (for interpreting for breach of chapter 29 of Magna statutes), 232–6, 466–7; on the Carta, 46, 155, 302, 314, 413, 476; justiciability of the prerogative, 147; special form founded on Magna on legal delays, 181; on the liberties Carta see action founded on Magna of the Ecclesia Anglicana, 31; on Carta; superior orders no defence, Magna Carta, 16, 243–8, 260, 106 263–4; on monopolies, 196; opinion Family of Love, heretical sect, 131 on the Bridewell charter, 241–3, 269; favourites: abuses of authority by or for on the origin of tenures, 222; praises the benefit of, 156–7, 258, 266, the judges of Edward III’s time, 60; 421–2, 447; Bacon argues in favour on proclamations, 152; prosecutes of ‘tenures of favour’, 306 Jesuits and seminary priests, 129, Fawkes, Guy, 132, 172 263; his reading on the Finch, Henry, of Gray’s Inn, 142, 273, recontinuation of liberties in the 404; argument in Maunsell’s Case, crown, 219; readings from the inns of

554 index

court used in his works, 225, 227, Golden Bull (1222), 41 232, 237–8; on readings in the inns Gooch (Googe), Dr Barnaby, master of court, 82; on statutes against the of Magdalene College, Cambridge, word of God, 105; his treatise on 416 Justices of the Peace, 236–7 grant, royal: distinguished from statute, Fleming, Sir Thomas, of Lincoln’s Inn, 12–13; construction of, 96, 243; later CJKB: as Sol.-Gen., 198, 316– see also commissions; liberties and 17; conduct in the case of franchises impositions, 330; less assertive than Gray’s Inn: an inn of court time out of Coke as CJ, 385–6 mind, 359; benchers elected to the Flood see Lloyd Reformation Parliament, 102; forced loans see benevolences and murder of a bencher, 170; probable forced loans visit by Elizabeth I, 225; a reading on forest law, 96, 479, 505 constitutional law in, 101–8 Fortescue, Sir John, CJKB, 95, 105, 144 Great Britain, name favoured by franchises see liberties and franchises James I, 341, 343 Fray, John, CB, 342 Green, Bartholomew, of Middle Freeman, Edward, of Gray’s Inn, 23 Temple, 129 French language see Law French Gregory XI, pope, attempt to suppress Frith, John, 122 unorthodox Oxford theology, 115, Frowyk, Thomas, of Inner Temple, 77; 120 reading, 183 Grevyle, Lewis, 171 Fuller, Nicholas, of Gray’s Inn: counsel Guala, papal legate, 5 for Cawdray, 142; counsel for Guernsey, island of, 300, 505 Maunsell, 356–63, 517–19, Guisnes, habeas corpus to, 496, 505 526–8; arguments against Gunpowder Plot (1605), 131–3, 294, impositions, 401 321–2, 329, 331; introduces bill to Gynes, Richard, of Inner Temple, 81, restrict Chancery injunctions, 414 220 fundamental law, 14–24 Gypsies, 111–12

gaol delivery system, a means to habeas corpus, 46, 141, 155–6, 261, 503; prevent perpetual imprisonment, availability out of term, 163; 509 availability outside the realm, Gascony, writs sent by the King’s Bench 299–302, 338, 347, 413, 504, 512, to, 299 521, 523; ﬁfteenth-century precedent Gawdy, Sir Thomas, JKB, 32 of, 156; general returns to, 161–2, Gerard, Thomas, Baron Gerard, knight- 264, 297–8, 361, 375, 412–14; judges’ marshal, 340 memorandum on (1592), 166–8, 399, Glanvill: cited in readings, 79, 85; cited 496–9; linked to Magna Carta, 169, in the 1550s, 244; a guide to the law 247, 250, 308, 310, 347, 446; for before Magna Carta, 223, 227 prisoners of the Church, 120, 506, Glanvill, Richard, 415–16, 418–20 513, 523; for recusants, 125, 158–60; Gloucester castle see Colchester return not traversable, 361, 413–14, Gloucester, duke of, see Woodstock 497, 530 God: not a legal person, 82; word of, habere facias seisinam, writ of, and 105; see also law of God; vow nullus disseisiatur in chapter 29, gold and silver mines, 193 101

index 555

Hakewill, William, of Lincoln’s Inn, Henry VII, king of England: 198; argument on impositions, rapaciousness of some of his 331–2 councillors, 99–100; reintroduces Hales, Christopher, of Gray’s Inn, 91, forced loans, 185; reversal of his 104; as attorney-general brought attainder, 67 Wolsey to heel, 282 Henry VIII, king of England: consults Hales, Edward, of Inner Temple, 106–7 judges as to attainder without trial, Hales, John, B., 79 32; his coronation oath, 253; Halifax, Yorkshire, custom of summary discourages readings on the execution (‘Gibbet Law’), 263, prerogative; 108; invocation of 470–1, 478, 493 Magna Carta by, 99; proclamations Hall, Edward, of Gray’s Inn, 124 and, 151; religious orthodoxy of, 121, Hampton Court Conference (1604), 124; story of his fool, 27 295 heresy: abjuration of, 106; due process Harcourt, Simon, JP, 173 legislation of Henry VIII concerning, Harlakenden, Thomas, of Gray’s Inn, 124, 518; late-medieval and early- 78–81 Tudor treatment of, 114–24; not Harris, Thomas, sjt, prosecuted in favoured by common-law judges, the Privy Council for an opinion, 131, 294–5; sentence of death by 401 burning for, 114, 295 Hatton, Sir Christopher, LC, 214, 251 Hervy, Humphrey, of Inner Temple, 75 Heath, Sir Robert, Att.-Gen., 10, 37 Hesketh, Richard, of Gray’s Inn, 85, 96 Hedley, Thomas, of Gray’s Inn, Hesketh, Thomas, Att.-Gen. of the argument on impositions, 332–3 Wards, 183 Hele, John, sjt, 213–14, 282 Heydon, Sir William, 178 Hemminges see Hunnings High Commission for Ecclesiastical Heneage, Sir Thomas, vice-chamberlain Causes: Ashley’s arguments against, of the Household, 166, 264, 285 429–30, 433; assumes a power of Henry I, king of England, coronation imprisonment, 136; Coke’s attempts charter (1100), 5, 14, 532–3 to curb, 353–75, 436; complaints Henry II, king of England, conquest of about, 135–7, 429–30; decisions Ireland by, 225, 301 reviewable by special commission, Henry III, king of England: charter of 140, 364, 523; habeas corpus for 1216, 5–6; charter of 1225: called prisoners of, 159–61, 289–98; Magna Carta, 3, 257; actions founded judges attempt to curb its excesses, on, 98–9, 352–3, 531–3; as a grant, 289–98, 353–75; Morice’s campaign 12, 257; as a statute, 4–9; against, 258, 270–5; origin and circumstances behind, 6–8, 252, 463; history of, 133–43, 207, 527; power his compliance with the provisions of to fine and imprison challenged, Magna Carta, 1 291–2, 296, 371, 373, 517; Henry IV, king of England: sanctions prohibitions to, 141, 353–75; burning of heretics in return for a unlawful conduct of its pursuivants, clerical subsidy, 114; introduces oath 291, 371; whether dependent on ex officio to please the pope, 430; statute or prerogative, 142–3, 242; see usurpation of the throne by, 430 also oath ex officio Henry V, king of England: High Court of Justice (1650), 23 confirmation of Magna Carta (1416), history and law, differences between, 13; suppression of Lollards by, 118 76–7, 85–6, 443–4, 448–9

556 index

Hitchcock, Thomas, of Lincoln’s Inn, husband escaping from custody of 329–30 wife, 84; suits for maintenance or Hobart, Sir Henry, Att.-Gen., 22; alimony, 279, 291, 364, 371–2, 375; argument in Fuller’s case, 361; see also divorce defence of the High Commission, Hussey, Sir William, CJKB, 426 370; proposed reform of High Hynde, John, litigant, 161–2 Commission, 355 holidays see Sundays and holidays immigrants: Gypsies, 111–12; negroes, Holinshed, Raphael, Chronicles of 112 England,3,81 impeachment, 55 Holt, William, of Gray’s Inn, 404–5 impositions, 184–5, 245, 328–34, 427 Hooker, Dr Richard, master of the impressment, 169–70 Temple, 342 imprisonment: purpose of, 173, 269; Hopton, Sir Owen, lieutenant of the two kinds of, 361; use of shackles on Tower, 155 prisoners, 173; see also false Hoskins, John, of Middle Temple, 392 imprisonment; habeas corpus; House of Commons: Elizabeth I stops it process discussing the High Commission and informers, 134, 199; monopoly of habeas corpus, 273; its decisions compounding with offenders, 199 treated as legal authorities, 428; injunctions: common injunctions from members imprisoned, 169, 246; the Chancery, 100, 102; to stay whether the attorney-general may sit proceedings at law after judgment, in, 427 162, 212–14, 284–9, 302–3, Howard, Charles, Baron Howard of 511–14 Efﬁngham, lord admiral, 166 Inner Temple: readings on Magna Howard, Frances, countess of Essex and Carta in, 72, 75–8, 106–7; readings then of Somerset, 436 on other statutes see Gynes, Marow; Howard, Philip, earl of Arundel, rebuked for calling too many 264–5 barristers, 402 Howard, Thomas (d. 1572), duke of Innocent III, pope, 3, 5, 120 Norfolk, 254 Innocent IV, pope, 18 Howard, Thomas (d. 1582), Viscount inns of chancery, 101 Bindon, 212 inns of court: constitutional law not Howard, Thomas (d. 1626), earl of prominent in their teaching, 86–8, Suffolk, 330, 436 101–9, 144; nature of education in, Hughes, Hugh, of Lincoln’s Inn, 177 67, 82–5; the ‘Ordinary Gloss’ on Hull see Kingston-upon-Hull Magna Carta, 72–3, 92, 96; origin human rights, 450–1 and early character of, 69–70; Humberston, William, clerk, 61–2 religion in, 126–7, 134, 254; see also Hunne, Richard, 104, 123 readings Hunnings (Hemminges, Hunnyngs), inquisition of life and member see odio Francis, 309–10, 513–16 et atia Hunsdon, Lord, see Carey inquisition post mortem, 43–4, 183 Hunt, Dr John, commissary of inquisitorial procedure, canonical, 119 Norwich, 138–9 international law, see conquest; ﬁshing; Hurdys, Nicholas, 315 jus gentium; law of nations; law of husband and wife: criminal liability of war; laws of the sea; husband for wife’s offences, 406, 490; treaties; war

index 557

inventions see patents for inventions John, king of England, his charter Ipswich, Suffolk, 376 (1215), 4–6, 532–3 Ireland: application of Magna Carta to, judges (of the common-law courts): 33, 103; conquest of, 225; English access to the sovereign, 148; called Acts of Parliament do not extend to, to account in the Privy Council, 105; Irish expelled from England, 368–70, 373, 381–3, 424–6; 111; Irish not a constituent element extrajudicial opinions given to in Parliament, 105; lex terrae used in, the crown, 425–6; independence of, 454; Parliament of, 454; subject to 44, 63, 68, 330, 362; James I calls the King’s Bench in England, 302, them his ‘shadows and ministers’, 505 366, 382; ‘the king’s strong arms’, Isle of Man, 299–301 362; kneeling before the king, 368, 419, 425–6; ofﬁce is jus Jacob, Abraham, purveyor, 325–6 dicere, non jus dare, 420; not to James I, king of England (James VI of desist from doing justice by Scotland): absolutist theories of, reason of the king’s letters, 102, 179, 339–40, 350–1, 447; accession to the 339 (see also judicial oath); ought English throne, 339–45; announces not to ‘overrule’ or ‘inspire’ the law, his intention to defend royal 306; ought to know the law of prerogatives to the utmost, 382; calls the land, 39; removal of, 174, the judges his ‘shadows and 436; threats of ‘disgrace’ ministers’, 366, 382; his decree (removal), 419, 421; see also concerning the Chancery (1616), judicial oath 368; forbids his supreme power to be judicial oath: injunctions and, 485–6; debated in court, 425; freedom of James I claims the right to interpret, conscience and, 366; interference in 382, 425; not to desist from doing jurisdictional disputes, 309, 366–8, justice by reason of letters under 420, 423, 514; minded to imprison the great or petty seal, 52, 181–2, the judges, 362; offers to strike Coke, 424; procuring the king’s proﬁt, 385; 368; orders a summary execution rege inconsulto and, 182, 424; (1603), 340; professes to accept supersedeas and, 181 Magna Carta, 343, 351, 370; judicial review of legislation, 90, 104; purported excommunication by see also statutory interpretation the pope, 132; reprehends the jury, grand, 452 judges for disputing matters of jury, trial by, 37–8, 43, 93, 247, 357; prerogative, 420; resents rumours subjects are instruments of justice that he favours religious toleration, to each other, 517; trial of knights, 292–4, 390–1; tells judges how to 37, 510 decide cases, 381 jus see under king; law Jarret, Sir Thomas, alderman of justice see under words and phrases London, 201 (justicia); delaying justice see Jenks, Edward, on the ‘myth’ of Magna under words and phrases (nulli Carta, 13, 442–4 differemus); selling justice see under Jenour, John, his book of entries, 156 words and phrases (nulli vendemus) Jersey, island of, 300 justices of the peace, 80, 201, 236–7; Jesuits and seminary priests, 128–31, origin within time of memory, 477, 153–4 482–3 Jews, 111 justicies, writ of, 48, 93, 453, 455

558 index

Kebell, Thomas, of Inner Temple, 77, jurisdiction over the Chancery, 412; 114 power to correct any manner of Kidwelly, Morgan, of Inner Temple, misgovernment, 397–8, 439; tries 75–8, 85, 88, 104 facts disputed on the common-law kindness to inferiors, as evidence of side of the Chancery, 44; see also heresy, 117 chief justice of England king (and queen): acts of a de facto King’s Council: bill procedure king, 408–9, 430; can do no wrong, complained of (1420s), 66–7; 44–6, 62, 106, 150, 328, 367, 494; imprisonment by, 161–2, cannot abdicate, 342; cannot be a 398–402; limitations on jurisdiction, disseisor, 45; cannot change the law, 36, 50, 52, 97; petitions based 257, 332–3, 468; cannot grant a on Magna Carta, 49; see also Privy power of imprisonment, 312; cannot Council; Star Chamber interfere with the common law, 208; king’s counsel: ﬁrst king’s counsel cannot send anyone to prison extraordinary, 305; punished for extrajudicially, 45–6, 169 (cf. below: advising on tax avoidance, 101; power of imprisonment); see also attorney-general competence to sit in court, 106, 257, king’s peace, 18–19, 80 382 (cf. below: power of judicature); Kings Lynn, Norfolk, alderman conviction by the king’s record alone, restored to ofﬁce, 206 53–5; debts of, 88, 179; as God’s Kingston-upon-Hull, port of, 52 lieutenant or vicar on earth, 342, 392; knights see under jury grants by, 96; immune from suit in Knights Templar, 115, 117 his own courts, 43, 48, 94; jus regale Knollys, Hanserd, stoned from the and jus politicum, 105; ‘king’ pulpit, 293 includes queen, 228; legislative Knollys, William, Baron Knollys, later power vested in, 469–72; may earl of Banbury, 406 appoint law for newly conquered Knowles, Sir Francis, 273 regions, 105, 300, 342; minority of, 6, Knox, John, 231 533; not bound by mandatory law, Knyvet, John, CJKB, 58, 62 44; not bound by statute without Kranich (Cranach), Burchart, alias express mention, 86, 187; potestas Dr Burcot, 193, 195 absoluta, 120, 146; power of imprisonment without cause shown, Ladd (Lad), Thomas, merchant of 100–1, 155, 504–5, 521; power of Yarmouth, 356 judicature, 39, 257, 306, 344, 366–8, Lake, Sir Thomas, 362 420; two bodies of, 6; see also Lambarde, William, of Lincoln’s Inn: commissions; coronation oath; his Archeion, 240; on Chancery crown; dispensing and suspending jurisdiction, 212; on judicium parium power; prerogative (royal); and jury, 38; as a legal historian, 218; proclamation on Magna Carta, 260 King’s Bench: as the supreme court in Lamberd, William, purveyor, 325–6 England, 302, 308–11, 339, 386–7, Lancaster, duchy chamber of, 397–8, 412, 504, 519; activity under 306, 388 Coke CJ, 386; called by Coke the Lancaster, Thomas, earl of, 53–5 ‘school of the law’, 418; dispute with Langton, Stephen, archbishop of the Exchequer, 163; jurisdiction in Canterbury, 17–18 respect of Parliament, 503–4; Lateran Council (1215), 18

index 559

law: different kinds of, 225, 239; cannot references to, 155, 312; habeas corpus be mythical or fictional, 444; contra and, 513; mentioned by Coke as legem distinguished from praeter attorney-general, 291–2, 308, 316, legem, 21, 317; history and, 443–4, 318; mentioned by Coke CJ, 378; 448–9; jus publicum, 226; jus regni, threatened by prerogative-minded 16; lex, 87; a liberty in itself, because chancellors, 421 it sets men free, 390–6; only the king licences, royal: may not prejudice may make, 469–72; reform of, individuals or subvert the law, 106; dangerous, 344; private law non obstante a statute, 187–90; trade (jus privatorum), 146; see also canon with infidels, 112 law; Civil law; common law; Lincoln’s Inn: recusants in, 126; twelve legislation members said to be researching Law French, 228, 236 against the prerogative, 381; two law of the crown, 226, 246 fifteenth-century readings on chapter law of God, 480, 492–3, 520 29 of Magna Carta in, 452–5 law of the land see under words and Liskeard, Cornwall, mayor of, 398 phrases (lex terrae) Littleton, Sir Thomas, JCP, his Tenures, law of nations, 474; jus gentium, 27, 75, 77–8, 217 226, 254, 490 liveries (to heirs of tenants in chief), law of nature, 474, 480, 493, 520; jus 100, 507–8 naturale, 226, 484; part of lex terrae, Lloyd (Flood), Humphrey, 279 484 Lollards, 115–16, 295 law of war, jus belli, 28, 492 London, city of: custom as to laws of Oleron, 226, 239 mortmain, 24–5, 27; custom of laws of the sea (hydronomiae), 239 bailing prisoners from eyre to eyre, lay rectories, 209, 363 47; custom of punishing prostitutes, leather, monopoly of sealing, 168, 183, 268; customs protected by Magna 196, 320 Carta, 29; lord mayor executes a Lee, Sir Henry, 200 malefactor summarily, 478, 480–1; Lee, Sir John atte, 58–60 and see the prescriptive equitable jurisdiction, Table of Cases under his name 28–9, 380; Sheriff’s Court, 49; leet, court, 26 relations with the Cinque Ports, 26 legal history: in the late-medieval inns London livery companies: Dyers, 315; of court, 76–7, 85–6; the first English Joiners, 241, 312–14, 468–76; legal historians, 149–206, 218–19 Merchant Taylors, 315–17; Tallow Legatt, Bartholomew, 295 Chandlers, 240 Leges Edwardi Confessoris (so-called), London prisons see Bridewell; Fleet; 76 Marshalsea; Tower of London legislation see bye-laws; delegated lord chancellor see chancellor of legislation; entrenchment of England legislation; statutes Lostwithiel, Cornwall, mayor of, 206 lex mercatoria, 226 Low Countries, customs as to Liber Assisarum, 58, 61 withernam, 27 liberties and franchises: disseisin of, Lucius, legendary king of Britain, 86, 431–3; grants of, 12–13, 44; quo 223 warranto and, 80 Ludlow, Salop, Council at, see Council liberty of the subject: compatible in the Marches of Wales with sovereignty, 333; early Luther, Martin, 121–2

560 index

Mabbe, John, goldsmith, 177 mass, celebration of, legislation against, mainprise, writ of, 503; see also bail and 128, 130, 364, 430 mainprise Maunsell, Richard, Presbyterian maintenance and champerty, 477, 480 minister, 356–9, 517–30 majority decisions, 470 Maunsell see also Mansell Malet, Baldwin, of Inner Temple, 81 maxims, as ‘grounds’ of the law, 82 Maltravers (Mautravers), John, Baron maxims and proverbs: Beneﬁcium juris Maltravers, 56–7 nemini est auferendum, 508; malum in se, and malum prohibitum, Constitutions ought to be brief and 188, 246, 328, 395 obscure, 447; Consuetudo privat Man, Isle of, see Isle of Man communem legem, 473; Every man’s mandamus (writ of restitution), 203–6, house is his castle, 433; Generalia 396–8, 436; linked to Magna Carta, specialibus non derogant, 26; Justicia 347 est suum cuique tribuere, 180; Leges mandamus (writ to remove a chief posteriores leges priores abrogant, 22; justice), 435 Lex anima reipublicae, 473; Lex facit manorial tenants, reliance on Magna regem, 342; Lex regis praesidium, Carta by, 65 473; Lex regis solium sive statio, 473; Mansell, Sir Robert, 400 Might is right, 65; Misera servitus ubi Mansell see also Maunsell jus aut vagum aut incertum, 383; Marches of Scotland, 304 Miserrima est servitus ubi jus est Marches of Wales, 4; see also Council in incognitum, 208; Natura est optima the Marches of Wales conservatrix sui, 520; Nemo pro Marion, Mrs, punished for refusing to alieno delicto est puniendus, 27, 492; be churched, 136 Nemo tenetur seipsum prodere, 138, Markham, Sir John, CJKB, discharge of, 365, 385; Nihil simul inventum est et 436 perfectum, 350; Parliamentum omnia Marow, Thomas, of Inner Temple, 73, potest, 529; Potestas principis non est 80–1, 237 inclusa sub legibus, 86; Quod in marriage ceremony, use of ring in, 134, practica non est receptum in jure est 142 merito suspectum, 520; Quod principi Marshal, William, earl of Pembroke, 5 placuit legis habet vigorem, 119, 145, Marshal of England see Earl Marshal 147, 473; Rex est lex loquens, 345; Rex Marshalsea, Court of, 207, 389–90, 454 est supra legem, 48, 86, 246; Salus Marshalsea Prison, marshal of, 164 populi suprema lex, 146, 374, 404; Marten, Dr (later Sir) Henry, king’s Summum jus est summa injuria, 417, advocate, 374 501; Thought is free, 260, 365; Ubi martial law, 53, 55, 106–7, 226, 430, major pars ibi totum, 470 515–16 Mayne, Cuthbert, seminary priest, 128 Mary I, queen of England: forced loans McIlwain, C. H., on common law as under, 186; imposes martial law on fundamental law, 14–16 possessors of heretical books, 430; Medes and Persians, laws of, 21, 378, misuse of her ‘absolute power’, 184; 388, 405 religious intolerance under, 125; Merchant Adventurers, 192–3, 472, submission to papal authority under, 474 125, 230 merchants: law of, 430; privileges of, 26, Mary, queen of Scots, 127, 130, 230–2, 192, 245, 329–30, 474; see also lex 254–5 mercatoria

index 561

Metham, Thomas, seminary priest, heretics under, 121–4; signatory of 161 the articles against Wolsey, 100, 213; metonymy, in statutes, 83, 232 tried for treason, 30–1 Middle Temple: notes of arguments in, Morice, James, of Middle Temple: 240; readings on chapter 29 of campaign against the High Magna Carta in, 251–5, 427–35; Commission and the oath ex ofﬁcio, recusants in, 127 142, 270–5; introduces a bill to Mildmay, Sir Anthony, commissioner explain Magna Carta, 273–4, 402; on of sewers, 419 imprisonment, 173; on monopolies, military service: whether it may be 191; on prerogative powers of required overseas, 170, 257; see also taxation, 184; on proclamations, 152; castle-ward; impressment; martial his reading on the rights of the law; navy; protection crown, 255–8 mines royal, 106, 180, 193–4 Mortimer, Roger, earl of March, Mirror of Justices, on the defects of 53, 55–6 Magna Carta, 42 mortmain: customs as to, 24–9; Modus tenendi Parliamentum, 223 legislation objected to by prelates, monasteries, dissolution of, 209 30 monopolies, varieties of, 187; see also mortuaries, 104, 123 dispensing and suspending power; Mounson, Robert, JCP, 174, 250 mines royal; regrating; and under Mowbray, John, Baron Mowbray, 55 informers (monopoly of municipal see urban compounding with offenders) Muscovy Company, 192 monopolies of trade and industry: Muslims, 112, 431 against Magna Carta, 318–23; Mytton, Edward, 159 customary forms of, 192; as a disseisin of liberty, 432; natural justice, 450 imprisonment for infringement of, natural law see law of nature 167–8, 194–7; introduced under navy, commission to investigate abuses Elizabeth I, 190–9; prerogative power in, 400–1 to grant, 192, 258; in respect of ne exeat regno, writ of, 184 inventions, 195–6, 474 negro immigrants, 112 monstrans de droit, 44, 49 Nevill, Edmund, claimant to the barony Montagu, Sir Edward, CJCP and CJKB, of Latimer, 267–8 78, 438 New Inn, 217 Montagu, Sir Henry, recorder of Newark-on-Trent, Notts, summary London, later CJKB: ‘feeble’ execution at, 340, 434 argument by, 302; on the dispensing Newcastle-upon-Tyne: Merchant power, 26; succeeds Coke as CJKB, Adventurers in, 318; not in the 438–9 Marches of Scotland, 304 Montagu, John, earl of Salisbury, 57 Newnham, Jane, 267 Moore, Francis, of Middle Temple, later non procedendo rege inconsulto, 181, sjt, 198, 316; praemunire against, 422–6, 439 418, 430 nonconformists see Puritans and their moots, 70, 217 sympathisers More, Sir Thomas, LC, 98, 101; accused Norfolk, duke of, Thomas, of bribery, 98; imprisonment of a a hypothetical duke of, 255; see also litigant by, 98, 462; persecution of Howard

562 index

Norman Conquest, 301, 349 Pagula (Paull), William de, pastoral Normandy: customs as to withernam, manuals by, 19, 117 27, 492; law in, 301 palatinates, 105, 211, 387, 454 Northern Rebellion (1569), 127 pardons, 106 Paris, Matthew, his text of Magna oath ex officio: Burghley against, 260, Carta, 4, 10, 37, 270 269; Coke against, 138–9, 354–5, Parker, Matthew, archbishop of 375; contrary to Magna Carta, Canterbury, 126, 134 429–30; Fuller’s campaign against, Parliament: antiquity of, 223–4; 356, 361, 517–30; habeas corpus and, bicameral constitution of, 52, 116; 143, 160; introduced into the cannot abolish absolute ecclesiastical commission by prerogatives, 188; early forms of, 11; Whitgift, 136; laymen exempt from, expected to observe the rule of law, 354–5, 358–9, 372, 374; likened to 31–2, the Spanish inquisition, 50–7; law relating to, 87–8, 103–4; 260 leaving without permission, oaths: taken on the bible, 112; see also punishable in the King’s Bench, coronation oath; judicial oath; oath 503–4; members of, may make ex officio laws where they have no odio et atia, writ, 21–2, 89, 509 expertise, 317; presumed not to act office (inquisition of office) see against law or reason, 91; privileges inquisition post mortem of, 23; rumoured to be on the offices: interference with, as disseisin, verge of extinction after 1614, 421; 266, 422; removal from, 204, 353, supremacy of, 23–4, 68, 87, 90, 529; 435–8; sale of, 422; see also supremacy and estoppel by record, mandamus 23; votes carried by a majority 470; Oldcastle, Sir John, Lord Cobham see also Addled Parliament; House of (jure uxoris), 73, 118, 518 Commons; Rump Parliament; Oleron see laws of Oleron statutes Oliver, John, sheriff of Essex, 59 Passeley, Edmund de, king’s serjeant, outlawry, 431, 464, 508; due process 53 and, 39 patents for inventions, 195–6, 474; Overbury, Sir Thomas, murder of, 436 see also monopolies of trade and Owen, Sir Roger, of Lincoln’s Inn: on industry the antiquity of the common law, peace see king’s peace 445; on the coronation oath, 253; on peace-time, defined in terms of the the law of Normandy, 301; ‘weapons courts being in session, 53–4, 430 have no force over the soul’, 126 Peasants’ Revolt, 35, 65 Owner, Edward, merchant of peers of the realm, trial by, 39–40, 54, Yarmouth, 356, 517–30 92, 452, 455, 464; extended to wives Oxford University: attempted papal of peers, 34, 247, 455, 463; not interference with, 115; equitable available to bishops and abbots, jurisdiction challenged, 265; grant to 463–4 hold pleas according to Civil law, peers: all subjects are entitled to trial by 385; jurisdiction over licensed their peers, 517; commoners as, 65, lodgings, 60; medieval lectures on 452; judgment of see under words conveyancing at, 69 and phrases (judicium parium, Oxford, Provisions of (1222), 18 pares); see also jury trial

index 563

Pembrokeshire, petition of the Magna Carta (1582), 250, 261, 312, Englishmen of, 66 468, 472; on Chancery jurisdiction, perjury: ambivalence of the canon law 289; on conquest, 301; on habeas towards, 123; in an inferior conciliar corpus, 309, 513, 521; on the court, 281 High Commission, 142, 374; on perpetual legislation see entrenchment martial law, 431, 515; on monopolies, of legislation; Medes and Persians, 197, 322; on prohibitions, 524; on the laws of Requests, 282 Perrot, Sir John, lord deputy of Ireland, praemunire: Coke favours prosecutions, 130, 178, 265–6 418–20, 426, 437, 439; for aiding a petition of right (in Chancery), 43, 49, maintainer of the pope, 128; for 61, 453 exceeding the jurisdiction of the Petition of Right (1628), 449 High Commission, 273; for petitions, popular, regarded as exercising inferior equitable seditious, 293–4 jurisdiction, 209–10, 265; for Phelips, Edward, of Middle Temple, misusing ecclesiastical courts later sjt, 142, 342, 380, 390 (after 1534), 298; for suing in Philips, Thomas, imprisoned by Sir Chancery after judgment at law, Thomas More, 123 213–14, 288, 417–20 piepowders, courts of, 454 Prayer Book see Book of Common Prayer Pilgrimage of Grace, 380 precedents: as lex terrae, 404; said to pillory, without trial, 478 make law, 406 Pine, John, Bluemantle Pursuivant, 4 prerogative, royal: absolute Pistor, Tristram, of Middle Temple, 253 prerogatives, 144–7, 183, 305–7, 322, Pius V, pope, bull against Elizabeth I 330, 337, 400; controlled by equity, (1570), 127 148; granting privileges for the public planning regulations, contrary to good, 60; inherent prerogatives, Magna Carta, 393 306; judicial review of, 147, 322–3, playing-cards, manufacture of, 319–23 420, 425, 472–3; mercy, 188; Plowden, Edmund, of Middle Temple: ordinary prerogatives, 108, 144–5, argument against the calamine 183, 306; power to stay lawsuits or patent, 194; on impositions, 184; on release parties in execution, 179–81, the succession, 231; recusancy of, 127 306 (see also non procedendo rege Plucknett, T. F. T., on common law and inconsulto); two kinds of, 144–7, 183, statute law, 15; on the Discourse, 234 322; see also dispensing and Plymouth, Devon, alderman restored, suspending power; licences; mines 396 royal; monopolies; proclamation; pope: annates payable to, 105; supremacy, royal dispensations by, 111, 221; doctrine prerogative courts, encroach on the of papal supremacy, 30, 120; prerogative themselves, 485; see also excommunication of all heretics by, conciliar jurisdictions 132; medieval popes’ dislike of prerogative writs, 310–11, 351; see also constitutional monarchy, 3, 9; papal certiorari; habeas corpus; mandamus; authority in late medieval England, prohibition 66, 105, 115–16 prescription see custom Popham, Sir John, Att.-Gen. later pressing see impressment CJKB: argument against the Joiners’ printing, monopoly of, 190 charter, 312–14, 468–72; citation of prisage of wine, 184

564 index

privilege, writs of, 107, 120, 157, 160 as, 361; loss of a hand, 174; see also Privy Council: commits a barrister for burning contempt, 434; imprisonment by Puritans and their sympathisers, councillors, 155–6, 165–8, 398–402, 134, 205, 253, 255–6, 355–6, 364 432, 499, 506; interrogatories used in, pursuivants, arrest by, see under 153; jurisdiction of, 211–12; process, service of legislative activities complained of, purveyance: for castles, 84; for the royal 154; Orders in Council as lex terrae, household, 186–7, 324–8, 339 448; proclamations and, 151; stops Pye, Robert, of Inner Temple, 402 an action on Magna Carta, 485–7; stops lawsuits, 176–7, 179, 278, 303, Quaestiones compilatae de Statutis, 71, 485–6; torture ordered by, 170 73–4 privy seal, subpoenas under, 100 quarantine, of a widow, 42, 89 procedendo in loquela (and ad quare impedit, 22, 62, 424 judicium), attributed to Magna queen, included in ‘king’, see under king Carta, 94 quo warranto, readings on, 74, 80 procedure, ordinary, see due process of law Ravenstone, Bucks, manor of, 285, 288 process, service of: abuse of, 453; readings (in the inns of court): origin pursuivants and serjeants at arms and early character of, 70–5; may not break into homes, 291, 308, constitutional learning in, 86–8, 371, 433, 499, 511; process may not 101–9, 144; legal history in, 222–3; be executed in an inn of court, 164 manuscripts of, 219; readers proclamation, legislation by, 105, discouraged from discussing royal 151–4, 390–6, 430 prerogative, 108 Prohibitio Formata de Statuto record (of a court), due process and, 46, Articulorum Cleri, supposed statute, 97, 100, 300 358 recusancy, 125, 127–8, 133; recusants prohibition, writ of, 141, 143, 209–10, protected by habeas corpus, 158–60 295, 307; designed to maintain the Reformation Parliament, 101, 104–5 king’s jurisdiction, 387; linked with rege inconsulto, regina inconsulta, see Magna Carta, 210, 307, 310, 347, 429; non procedendo rege inconsulto not awarded after decree, 388; special Register of Writs, antiquity of, 405 consultation, 360; suggestions regrating, 196 reciting Magna Carta, 292; religious toleration, 125–31, 292–4; unlawfully granted under the royal see also under Elizabeth I; James I prerogative, 64 remedies: every wrong has a remedy by protection, writs of, 47, 107, 469; reason of Magna Carta, 428; see also prerogative forms of, 174–9, 266 actions founded on Magna Carta; proverbs see maxims and proverbs certiorari; damages; habeas corpus; provincial constitutions, may not mandamus; prohibition change the law of the land, 114 repeal of legislation see under statutes provincial councils see conciliar Requests, Court of: action on Magna jurisdictions Carta for suing in, 97, 277–8, 484–7; public law see constitutional learning grants commissions of sequestration, punishment: corporal, 174; exorbitant 280; grants injunctions to restrain forms of, 173–4, 398; imprisonment judgments at common law, 162, 210,

index 565

338; habeas corpus for prisoners of, 393, 449; observed by Parliament, 162, 281–2; its proceedings as lex 31–2; see also under words and terrae, 430; judges try to curb its phrases (lex terrae) excesses, 277–84, 376–9; lacks a Rump Parliament, 23 written commission, 208; origin and Runnymede (near Egham), Surrey, the purpose of, 207, 278, 281, 306, 407, charter conceded at, 3–4, 8, 243 484–5, 487; threatened abolition of (1509), 100 Sabbath see Sundays restitution, writ of: for clergy and their Sackvile, Richard, of Gray’s Inn, 102 families, 298; see also mandamus Sackville, Robert, earl of Dorset, 330 restraint of trade see trade, freedom and Sackville, Thomas, Lord Buckhurst, restraint of 249 Reynell, Sir George, marshal of the sacrament, not kneeling to receive, 365, King’s Bench, 353 374 Richard II, king of England: deposition St Albans, Hertfordshire: alderman of, of, 63–5, 407; oppression of restored to office, 206; courts preachers by, 116 adjourned to (1593), 314–15, 487–9 Richard III, king of England: abolition St German, Christopher, of Middle of ‘benevolences’ (forced loans) by, Temple, 36, 94–5, 102, 122, 124 185, 407; a ‘cruel tyrant’, 230; law St John, Oliver (‘Black Oliver’), 407–9 officers of, 75; usurpation of the Salisbury, Wiltshire, alleged custom crown by, 408–9 contrary to Magna Carta, 262–4, Ridley, Dr Thomas, chancellor of 481–4 Winchester, 298, 364 salt, monopoly of making, 194–5 right see under words and phrases Saltonstall, Sir Samuel, 401 (rectum) saltpetre, commissions to take, 194, right, writ of, 453, 455; see also under 327–8 words and phrases (rectum) sanctuary, 31, 81, 119, 470 Rodes, Francis, of Gray’s Inn, later JCP, Sandwich, Kent, 26, 61, 489–94 86 Saunders, Sir Edward, CB, 157, 250 Roman Catholics: in Lincoln’s Inn, 126; sayings see maxims and proverbs in Wales, 306; not treated as heretics, Scotland: application of Magna Carta 131, 295; ‘papist’ not defamatory, to, 300; Marches of, 304; Scottish 126; supposed toleration of, 292–3, peers and commons not a constituent 390–1; women papists regarded as element in the English Parliament, dangerous, 137, 160, 267; see also 105; union with England proposed, Jesuits and seminary priests; 341–3, 350; see also Scots law recusants Scots law, 299–301 Roman Curia see Ecclesia Romana Scrogges, Alexander, attorney, 156–7 Roman law: thought less ancient than sea see fishing; laws of the sea; walruses common law, 86, 343, 445; Twelve Selden, John, of Inner Temple: Tables, 290; see also Civil law awareness of John’s charter (1215), Roper, Sir Anthony, 363 5, 10; on the antiquity of the Rule of Law: as the essence of chapter common law, 348, 444; on judicium 29 of Magna Carta, 16, 33, 449; parium and jury trial, 38; on lex Elizabeth I and, 150; how it binds the terrae, 16, 38; on Magna Carta as a king, 64; ‘certain rule of law’ (1610), statute, 7

566 index

Seler, Jasper, grant of a salt monopoly Magna Carta in court (1587), 262; to, 194–5 mentions Anderson CJ and Coke in self-incrimination, privilege against: his will, 276; reading on chapter 29 connected with Magna Carta, 36, (1581), 251–5 430; first objections to, 160; in the Soame, Sir Henry, lord mayor of High Commission, 160, 208, 429, London, 168 518; in the Privy Council, 153–4; in solicitor: barrister acting as, 239; not an the Requests, 376; when a juror is occupation recognised by the law, challenged, 519–20; whether limited 387; prohibited from representing to the avoidance of temporal clients, 283 penalties, 524; see also oath ex officio Solomon, king of Israel, the lions under seminarians see Jesuits and seminary his throne, 423 priests Somer, Will, fool to Henry VIII, 27 serjeants at law, prevented from South Mimms, Hertfordshire, representing clients, 212–13, 485–6 blacksmith of, 313–14 sewers, commissioners of, 338, 439 Southampton, Hants, monopoly sexual misconduct, jurisdiction over, provision in its charter, 190–2, 250, 135, 138, 141, 143, 364, 430 312, 472, 474–5 Shakespeare, William, 4 Spanish armada, repulse of (1588), 186, Sheffield, Edmund, Baron Sheffield, 194 president of the Council at York, 383 Spanish Inquisition, 260 Sheffield, Sir Robert, of Inner Temple, Spelman, John, of Gray’s Inn, 81 99, 157–8, 242, 460, 503 Stafford, Edmund, bishop of Bath and sheriffs, law relating to, 79, 84, 453; Wells, LC, 50 see also justicies Stamford, Lincolnshire, alderman ship money, 186, 407, 448 restored to office, 205 Shrewsbury, Salop, alleged custom Stannaries, 193, 303 contrary to Magna Carta, 476–81 Stanshawe, Nicholas, of Lincoln’s Inn, 66 silver see gold and silver mines Star Chamber: decree concerning the simony, 292, 430 Chancery (1616), 420–1; described as Six Clerks’ Office, 423 an arbitrary court of discretion, 393; Sixtus V, pope, bull against Elizabeth I described as malleus delinquentium, (1588), 127 405; harsh interrogation ordered by, Skinner, Ralph, dean of Durham, 247 419; invention of misdemeanours by, Skynner, Thomas, sheriff of London, 154, 211; judges attend and advise, 266–9 402; jurisdiction of, 211–12, 402–6, slavery: not recognised by the common 426; origin of, 211, 306, 404–5; law, 35; oppressive commissions proceedings as due process, 501–2; likened to, 61; uncertainty of law proceedings as lex terrae, 430; likened to, 208, 383 prosecutions commenced orally, 212; Smith, Jane, wife of Edmund Nevill, punishes distributors of papist styled Lady Latimer, 267 books, 126; punishers deceivers, 478; Smith, Sir John, 169 punishes JP for oppression, 173; Smyth, Thomas (1589), servant, 171–2 punishes recusancy, 137; readers of Smyth, Thomas (‘Customer Smyth’, the inns of court admonished in, 108 d. 1591), 328 Statham, Nicholas, of Lincoln’s Inn, 74 Snagge, Robert, of Middle Temple: Statuta Nova, 95, 99 character, 253–4; cites chapter 29 of Statute Law Committee, 11

index 567

statutes (Acts of Parliament): actions summary execution by mayor of founded on, 353; contrasted with London, 478, 480–1 common law, 14; effect of Sundays and holidays, working on, 290, conﬁrmation, 13, 20–1, 52; estoppel 297, 430 by record and, 23; every statute made supersedeas, writs of, 181–3, 266 against a mischief implies a remedy, Supplication of the Ordinaries (1531), 46; lex condita, 226; meaning of 124, 518 ‘statute’,2–3, 6–8; prescription supremacy (supreme headship or against, 482; repeal of, 11–12; statute governorship) of the monarch over kept unprinted ‘by the craft of the the English Church: as an absolute prelates’, 116; statutes by reputation, prerogative, 137, 293, 350–1; 7, 478, 480; void statutes, 88–91, 104, founded on common law, not on the 244, 439; see also entrenchment of legislation of Henry VIII, 220–1, 258, legislation; judicial review of 293, 298, 519; how far consistent legislation; statutory interpretation with constitutional monarchy, 143, 272 Statutes at Large,10 suspending power see dispensing and Statutes of the Realm,10–11 suspending power statutory interpetation: absurdity to be Symeon, Geoffrey, dean of the Chapel avoided, 88–91, 104, 477; doubtful Royal, master of requests, 459 statute interpreted by the law of reason, 521; equity, 233; importance Talbot, William, Irish barrister, 132 of knowing the previous common Tanﬁeld, Lawrence, of Inner Temple, law, 222–3; judges assert the 262, 300, 316, 527 exclusive right of, 354, 364; judges Tate, Francis, of Middle Temple, 219 said to interpret statutes as broadly taxation: excessive taxes against Magna as shipmen’s hose, 366; obvious Carta, 433; grants of exemption errors, 91; penal legislation from, 187–8; history of, 331; imposed construed strictly, 128–9 without consent in Parliament, 36, Staunford, William, JCP, 144 184–7, 257–8, 328–34; tax avoidance, Stephen, king of England, 233 101, 108; see also benevolences; Stoke Goldington, Bucks, manor of, customs; impositions 285, 288 Temple (New), London: arrest in, 164; Stokesley (Stokysley), Dr John, master forfeited by the knights Templar, of requests, 97–8, 461 115; meeting of barons at (1215), 14; Stratford, John de, bishop of see also Inner Temple; Middle Winchester: draws articles against Temple Edward II, 63; indicted in the King’s tenures, origin of, 222 Bench for absence from Parliament, Thetford, Norfolk, manor of, 62 503–4 Thornton, William, of Lincoln’s Inn, Streater, Colonel John, printer, 23 108, 255 Stubbe, John, of Lincoln’s Inn, 174 Thorp, Robert de, CJCP, 58–9, 62 Suárez, Francisco, Jesuit theologian, Throckmorton, Sir Robert, 285 132 Throckmorton, Thomas, 285 subdisjunctive, 38 Tilney, Norfolk, advowson of, 61–2 subpoena, origin of, 103, 430 tin, pre-emption of, 193 summary trial: for misdemeanours, 99, tithes, 104, 139, 209, 432 479; for offenders caught red- tolls, 433 handed, 56, 479; in towns, 478, 480; torture, 111, 170–2; under canon law, 117

568 index

Tourneur, Timothy, of Gray’s Inn, on vow, to God, in chapter 1 of Magna the events leading to Coke’s Carta, 83, 243 downfall, 419–21, 424, 437, 439 Tower of London: habeas corpus for wager of law, 271–2; equated by Selden prisoners in, 302, 496–7, 505–6, 523; with ‘lex terrae’, 16, 38 the highest prison in the realm, 513; Wales: English Acts of Parliament liberty of, 28; ‘Little Ease’ in, 173; the apply in, 105; English common law rack used in, 171 does not run in (c. 1500), 454; habeas towns see alderman; cities and towns; corpus to, 505; Welshmen not a urban disputes constituent element in Parliament, Townshend, Dorothy, wife of Sir 105; Welshmen unwilling to travel Henry, 403 to London for litigation, 306; writs trade: freedom and restraint of, 155, sent from the King’s Bench to, 302; 202, 245, 312–14, 318, 321, 329, 393, see also Council in the Marches of 432, 468–76; trade with inﬁdels, 112 Wales; Marches of Wales treason: arrest for, 46, 159, 168, 371, Walmsley, Sir Thomas, JCP: habit of 499, 504–5; attainder for, 32, 36, dissenting, 287, 365, 384, 490; on 53–5, 67, 182; bail in cases of, abuses by the Court of Requests, 401; heresy compared with, 124; 381, 485; on equitable jurisdiction, judges coerced by Richard II into 280; on excessive pride in municipal extending the law of, 63; religion corporations, 202; on the importance and, 30–40, 118, 125–33, 153, 264–5 of the Cinque Ports, 493; on treaties, 61, 145, 147, 239, 322 imprisonment by the High Tregeon, Francis, 128 Commission, 290; on the measures Treherne, George, of Lincoln’s Inn, 96 needed to curb inferior courts of Tresham, Sir Thomas, 154 equity, 282–3, 304, 377 Tresilian, Robert de, CJKB, 63 walruses, 192 Walsingham, Sir Francis, secretary of United States of America, Constitution state, 166 of, 37, 41–2, 90 war, declaration and conclusion of: universities: English law not on the belongs to the absolute prerogative syllabus, 66, 69, 110–11, 113; study of 145, 337; effected by proclamation, ‘the emperor’s law’ (Roman law) in, 151, 257; not justiciable in the courts, 66; see also Cambridge; Oxford 147, 322 urban disputes, 163, 201–6, 262–4 Waram (Wharam), Richard, usury, 135, 161, 430 177–8 Warburton, Peter, JCP, reports by, 395 Valence, Mary de, dowager countess of Wards, Court of, 183 Pembroke, 51, 61–2 wardship: disparagement of wards, 42, Vaux, William, Lord Vaux of 83, 89; readings on, 81; whether due Harrowden, 153 before homage taken, 466, 477–8, vegetarianism, as evidence of heresy, 116 482 Venice, doge of, 394 Warenne, John de, 62 Vergil, Polydore, 224, 228 warrant for arrest: blank warrants villeins, 51, 431; amercement of, 88–9; unlawful, 41; general warrants, 496; as liberi homines, 247; cannot be when necessary, 482–4, 496 priests, 83; manumissions of, 200; Warwick, earl of, see Beauchamp wreck and, 79 wedding see marriage ceremony

index 569

Wendover, Roger of, 4, 247, 263, 477 against, 100, 121, 213; feud with Wharam see Waram Sir Robert Shefﬁeld, 157–8; Whetherly (Witherley), Walter, imprisonment by, 157–8; introduces oppressed by the Council in the forced loan (1523), 185 Marches, 307–10, 511–14 women: apparent mysogyny explained Whig school of history, 442 by politics, 229–31; female hereditary Whitelocke, James, of Middle Temple: sheriff, 84; included under liber praises Coke, 438–9; imprisoned, homo, 34, 230, 247, 431, 463–4; 400–1, 427; on impositions, 331, 334; supposed to be unﬁt for government, reports the Case of Monopolies, 316 230–1; see also husband and wife; Whitgift, John, archbishop of widows; and under Roman Catholics Canterbury, 134, 136, 258, Woodhouse, Captain Thomas, 178 260, 274 Woodstock, Thomas, duke of widows: the king’s (tenant’s) widow, 84, Gloucester, 63 466; marriage of, 88; right to Woodville, Elizabeth, queen of quarantine, 42, 89; right to remain in Edward IV, 229, 231 a castle, 71, 89, 466; see also dower Woolton (Wootton), John, physician of Wightman, Edward, 295 Exeter, 365 William I, king of England, and English words and phrases (in Magna Carta): law, 76, 85, 306, 445, 532; laws and boscus, 324; capiatur, 92, 101, 453–5, decrees of, 85 500–7; communia placita, 76–8, 81, 86, Williams, Sir David, JKB: angry with 376, 466, 482; concessimus Deo, 82, Fleming CJ, 386; on Coke’s 243; contenementum, 88; curia nostra, arrogance, 437; on the High 78, 88; ecclesia, 466; erga suos, 33, Commission, 525 119; judicium parium, 37–8, 92, 247, Williams, Thomas, of Inner Temple, 429, 452, 455, 463; justicia, 48, 453; 37, 247 legale judicium, 39–40, 398; lex terrae, Willoughby, Lord, see Bertie 16–17, 87, 103, 245, 251, 400, 404, Willoughby, Richard, CJKB, 57–8 429–31, 448, 454–5, 464, 475–6, 484, Winchester (diocese), bishop of, see 500; liber homo, 34–5, 230, 247, 340, Stratford 430–1, 463–4; liberae consuetudines, Winchester, Hants, usher of the school, 25, 433; locus certus, 466; nulli 364 differemus, 47, 94, 149, 175, 179–80, Windsor, Berks, royal castle at, 423 247; nulli negabimus, 453; nulli wine: import of, 152, 184, 190; licence vendemus, 40, 47–8, 88, 93–4, 149, 247, to retail, notwithstanding a statute, 453, 455, 465; nullus (gender-free), 34; 189; measures of, 87 nullus destruatur, 340, 408, 509; nullus Winwood, Sir Ralph, secretary of state, disseisiatur, 101, 464, 507–8; nullus 406, 423 exuletur, 448, 509; nullus utlagetur, Witherley see Whetherley 464, 508; pares, 92–3, 427, 447 withernam, customs as to, 26–8, 317, and above (judicium parium); pax 488–94 nostra, 80; puer, 230; Wode, Thomas, of Middle Temple, rectae consuetudines, 330; possible reading on Magna Carta, 80 rectum, 48, 93–4, 453; super Wolsey, Thomas, cardinal archbishop eum ibimus, 36, 340, 429, 464 of York: as LC, 98, 101; as king’s 509–10; super eum mittimus, almoner, 459; brought to heel by the 36–7, 340, 464, 509–10; vel, 38–40; attorney-general 282; charges wainagium, 88

570 index

Wray, Christopher, of Lincoln’s Inn, Yelverton, Sir Christopher, of Gray’s later CJKB: argument against the Inn, later JKB; on habeas corpus, 309, Southampton charter, 190, 250; on 513, 523–4; on prohibitions, 523; the role of the High Commission, readings collected by, 102; 140; rejects a prerogative protection, reprimands Fuller, 528; speaker of 178; speaker of the Commons, 137 the Commons, 197 wreck, law of, 74, 79 Yelverton, Sir Henry, JCP, 102 writs, ﬁnes and fees charged for, 47–8, York, city: mayor’s court of equity, 387; 89, 93, 453, 455 cathedral of, 62 Wroth, Robert (1529), of Gray’s Inn, 91 Young, Thomas, archbishop of York, Wroth, Sir Robert (1601), of Gray’sInn, 159 198 Wycliffe, John, theologian, 65, 115, 120 Zouche, Edward, Baron Zouche, lord Wykeham, William of, bishop of president of Wales, 303–5, 307, Winchester, LC, 60 309–10, 346, 406, 507