freedom accustomed and due to the Commons of your Highness' parliament, who have ever used to enjoy the freedom of coming to and returning from the parliament and sitting there without restraint or molestation, and it concerneth your Commons greatly to have this freedom and privilege inviolably observed; yet, to the end that no person be prejudiced or damnified hereby, May it please your Highness by the assent of the Lords spiritual and temporal and Commons in this present parliament assembled, and by the authority of the same, it may be ordained and enacted, That the said sheriff of London, the now warden of the Fleet, and all others that have had the said Thomas in custody since the said first arrest may not nor shall in any wise be hurt, endamaged or grieved because of dismissing at large the said Thomas Shirley: saving always to the said Giles Simpson and other the persons before said, at whose suit the said Thomas is detained in prison, their executions and suits at all times after the end of this present session of parliament to be taken out and prosecuted as if the said Thomas had never been arrested or taken in execution, and as if such actions had never been brought or sued against him; saving also to your Majesty's said Commons called now to this your parliament, and their successors, their whole liberties, franchises and privileges in all ample form and manner, as your Highness' said Commons at any time before this day have had, used and enjoyed and ought to have, use and enjoy, this present act and petition in any wise notwithstanding.

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

(1606. 11 State Trials, 30-32. Prothero, 340-342.)

[Baron Clarke] It seemeth to me strange that any subjects would contend with the King in this high point of prerogative; but such is the King's grace that he has showed his intent to be, that this matter shall be disputed and adjudged by us according to the ancient law and custom of the realm. * As it is not a kingdom without subjects and government, so he is not a king without revenues. The revenue of the crown is the very essential part of the crown, and he who rendeth that from the King pulleth also his crown from his head, for it cannot be separated from the crown. And such great prerogatives of the crown,

without which it cannot be, ought not to be disputed; and in these cases of prerogative the judgment shall not be according to the rules of the common law, but according to the precedents of this court, wherein these matters are disputable and determinable.

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

**

The Statute of the 45 Edw. III, Cap. 4, which hath been so much urged, that no new imposition shall be imposed upon woolfells, wool or leather but only the custom and subsidy granted to the King - this extends only to the King himself and shall not bind his successors, for it is a principal part of the Crown of England which the King cannot diminish. And the same King, in the 24th of his reign, granted divers exemptions to certain persons, and because that it was in derogation of his state imperial, he himself recalled and annulled the same

The writ

All the ports of the realm belong to the King. of ne exeat regno comprehends a prohibition to him to whom it is directed that he shall not go beyond the seas, and this may be directed at the King's pleasure to any man who is his subject; and so consequently may he prohibit all merchants. And as he may prohibit the persons, so may he the goods of any man, viz. that he shall export or import at his pleasure. And if the King may generally inhibit that such goods shall not be imported, then by the same reason may he prohibit them upon condition or sub modo, viz. that if they import such goods, that then they shall pay, &c. *

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

is not that which is converted or executed to private use, to the benefit of any particular person, but is only that which is applied to the general benefit of the people, and is salus populi; as the people is the body, and the King the head; and this power is [not] guided by the rules which direct only at the common law, and is most properly named policy and government; and as the constitution of this body varieth with the time, so varieth this absolute law, according to the wisdom of the King, for the common good; and these being general rules, and true as they are, all things done within these rules are lawful. The matter in question is material matter of state, and ought to be ruled by the rules of policy, and if it be so, the King hath done well to execute his extraordinary power.

All customs, be they old or new, are no other but the effects and issues of trades and commerce with foreign nations; but all commerce and affairs with foreigners, all wars and peace, all acceptance and admitting for current foreign coin, all parties and treaties whatsoever are made by the absolute power of the King: and he who hath power of causes hath power also of effects. *

It is said that an imposition may not be upon a subject without parliament. That the King may impose upon a subject, I omit, for it is not here the question if the King may impose upon the subject or his goods. But the impost here is not upon a subject, but here it is upon Bates, as upon a merchant who imports goods within the land, charged before by the King; and at the time when the impost was imposed upon them, they were the goods of the Venetians and not the goods of a subject, nor within the land; * and so all the arguments which were made for the subject fail. * **

And whereas it is said, that if the King may impose, he may impose any quantity that he pleases, true it is that this is to be referred to the wisdom of the King, who guideth all under God by his wisdom, and this is not to be disputed by a subject; and many things are left to his wisdom for the ordering of his power rather than his power shall be restrained. The King may pardon any felon but it may be objected that if he pardoned one felon, he may pardon all, to the damage of the commonwealth; and yet none will doubt but that is left to his wisdom. And the

wisdom and providence of the King is not to be disputed by the subject; for by intendment they cannot be severed from his person, and to argue a posse ad actum, to restrain the King and his power because that by his power he may do ill, is no argument for a subject.

185. The Case of Prohibitions

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

NOTE, upon Sunday the roth of November in this same term,

the king, upon complaint made to him by Bancroft, archbishop of Canterbury, concerning prohibitions, the king was informed, that when the question was made of what matters the ecclesiastical judges have cognizance, either upon the exposition of the statutes concerning tithes, or any other thing ecclesiastical, or upon the statute 1 El. concerning the high commission, or in any other case in which there is not express authority in law, the king himself may decide it in his royal person; and that the judges are but the delegates of the king, and that the king may take what causes he shall please to determine, from the determination of the judges, and may determine them himself. And the archbishop said, that this was clear in divinity, that such authority belongs to the king by the word of God in the Scripture. To which it was answered by me, in the presence, and with the clear consent of all the judges of England, and barons of the exchequer, that the king in his own person cannot adjudge any case, either criminal, as treason, felony, &c. or betwixt party and party, concerning his inheritance, chattels, or goods, &c., but this ought to be determined and adjudged in some court of justice, according to the law and custom of England; and always judgments are given, ideo consideratum est per curiam, so that the court gives the judgment: and the king hath his court, viz. in the upper house of parliament, in which he with his lords is the supreme judge over all other judges; for if error be in the common pleas, that may be reversed in the king's bench: and if the court of king's bench err, that may be reversed in the upper house of parliament, by the king, with the assent of the lords spiritual and temporal, without the commons: and in this respect the king is called the chief justice, 20 H. 7. 7a. by Brudnell: and it appears in our books, that the king may sit in the star-chamber; but this was to consult with the justices, upon certain questions proposed to them, and not in judicio: so in the king's bench he may sit, but the court gives the judgment: and it is commonly said in our books, that the king is always present in court in the judgment of law; and upon this he cannot be nonsuit: but the judgments are always given per curiam; and the judges are sworn to execute justice according to law and the custom of England.

And it appears by the act of parliament of 2 Ed. 3. cap. 9. [2 Ed. 3. cap. 1.] that neither by the great seal, nor by the little seal, justice shall be delayed; ergo, the king cannot take any cause out of any of his courts, and give judgment upon it himself, but in his own cause he may stay it, as it doth appear 11 H. 4. 8. And the judges informed the king, that no king after the conquest assumed to himself to give any judgment in any cause whatsoever, which concerned the administration of justice within this realm, but these were solely determined in the courts of justice and the king cannot arrest any man, as the book is in 1 H. 7. 4. for the party cannot have remedy against the king; so if the king give any judgment, what remedy can the party have. Vide 39 Ed. 3. 14. one who had a judgment reversed before the council of state; it was held utterly void, for that it was not a place where judgment may be reversed. Vide 1 H. 7. 4. Hussey, chief justice, who was attorney to Ed. 4., reports that Sir John Markham, chief justice, said to King Ed. 4. that the king cannot arrest a man for suspicion of treason or felony, as others of his lieges may; for that if it be a wrong to the party grieved, he can have no remedy: and it was greatly marvelled that the archbishop durst inform the king, that such absolute power and authority, as is aforesaid, belonged to the king by the word of God. Vide 4 H. 4. cap. 22. which being translated into Latin, the effect is, judicia in curia regis reddita non nihil annihilentur, sed stet judicium in suo robore quousque per judicium curiæ regis tanquam erroneum, &c. Vide West. 2. cap. 5. Vide le stat. de Marlbridge, cap. 1.

:

Provisum est, concordatum, et concessum, quod tam majores quam minores justitiam habeant et recipiant in curia domini regis. Et vide le stat de Magna Charta, cap. 29. 25 Ed. 3. cap. 5. None may be taken by petition or suggestion made to our lord the king or his council, unless by judgment: and 43 Edw. 3. cap. 3. no man shall be put to answer without presentment before the justices, matter of record, or by due process, or by writ original, according to the ancient law of the land and if anything be done against it, it shall be void in law and held for error. Vide 28 Edw. 3. c. 3. 37 Edw. 3. cap. 18. Vide 17 R. 2. ex rotulis parliamenti in Turri, art. 10. A controversy of land between parties was heard by the king, and sentence given, which was repealed for this, that it did belong to the common law: then the king said, that he thought the law was founded upon reason, and that he and others had reason, as well as the judges: to which it was answered by me, that true it was, that God had endowed his Majesty with excellent science, and great endowments of nature; but his Majesty was not learned in