the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it: and that the law was the golden met-wand and measure to try the causes of the subjects; and which protected his Majesty in safety and peace with which the king was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to whom I said, that Bracton saith, quod rex non debet esse sub homine, sed sub Deo et lege.

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

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

HUS I have here delivered my concurrence in opinion

and satisfy my conscience that Ro. Calvin, and all the post-nati in Scotland, are in reason and by the common law of England natural-born subjects within the allegiance of the King of England, and enabled to purchase and have freehold and inheritance of lands in England and to bring real actions for the same in Eng. land.

187. The Case of Proclamations

MEMOR

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

[EMORANDUM, 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 be no more than the duke of Venice: and that the king was so much restrained in his prerogative, that it was to be feared the bonds would be broken: and the lord privy seal said, that the physician was not always bound to a precedent, but to apply his medicine according to the quality of the disease: and all concluded that it should be necessary at that time to confirm the king's prerogative with our opinions, although that there were not any former precedent or authority in law for every precedent ought to have a commencement.

To which I answered, that true it is that every precedent hath a commencement; but when authority and precedent is wanting, there is need of great consideration, before that anything of novelty shall be established, and to provide that this be not against the law of the land: for I said, that the king cannot change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without parliament. But at this time I only desired to have a time of consideration and conference with my brothers, for deliberandum est diu, quod statuendum est semel; to which the solicitor said, that divers sentences were given in the star chamber upon the proclamation against building; and that I myself had given sentence in divers cases for the said proclamation to which I answered, that precedents were to be seen, and consideration to be had of this upon conference with my brethren, for that 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, 11 Hen. 4. 37. Fortescue De laudibus Angliæ 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 Angliæ, 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 quæ 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.

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.

188. Act against Monopolies

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

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 pre

tences of public good, many such grants have been unduly obtained and unlawfully put in execution, to the great grievance and inconvenience of your Majesty's subjects, contrary to the laws of this your realm and contrary to your Majesty's royal and blessed intention so published as aforesaid: for avoiding whereof and preventing of the like in time to come, may it please your most excellent Majesty *** that it may be declared and enacted, and be it declared and enacted * * * that all monopolies and all commissions, grants, licences, charters and letters patents to any person, bodies politic or corporate, whatsoever, for the sole buying, selling, making, working or using of anything within this realm or the dominion of Wales, or of any other monopolies, or of power to dispense with any others, or to give licence or toleration to do anything against the tenor of any law or statute, 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.

or

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.

V. Provided nevertheless, that any declaration beforementioned 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, no 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. *