after the quantity of his spiritual benefice, but after his lay-tenement, and after the quantity of his offence.

Cap. XIX. No constable nor his bailiff, shall take corn or other chattels of any man, if he be not of the town where the castle is, but he shall forthwith pay for same unless that the will of the seller was to respite the payment; and if he be of the same town, the price shall be paid unto him within forty days.

Cap. XXI. No sheriff nor bailiff of ours, or any other shall take horses or carts of any man to make carriage, except he pay the old price limited, that is to say, for carriage with two horse, x d. a day; for three horse xiv d. a day. No demesne cart of any spiritual knight or person, or any lord, shall be taken by our bailiffs : nor we, nor our bailiffs, nor any other, shall take any man's wood for our castles, or other our necessaries to be done, but by the license of him whose the wood is.

Cap. XXIX. No freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed, nor will we pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.

Extracts from COKE'S SECOND INSTITUTE. (These extracts are from Lord Coke's Commentary on Cap. XXIX of Magna Carta.) "No man shall be taken (that is) restrained of liberty, by petition or suggestion to the king or to his councell, unless it be by indictment or presentment of good and lawfull men, where such deeds be done."

"No man shall be disseised, &c."

Hereby is intended that lands, tenements, goods and chattels shall not be seized into the king's hands, contrary to this great Charter, and the law of the land: nor shall any man be disseised of his lands or tenements or dispossessed of his goods and chattels contrary to the law of the land.

A custom was alleged in the town of C, that if the tenant cease by two years, that the lord should enter into the freehold of the tenant, and hold the same untill he were satisfied of the arrearages, and it was adjudged custom against the law of the land, to enter into a man's freehold in that case without action or answer.

"No man destroyed" etc.

That is, fore-judged of life or limb, disinherited, or put to torture or death.

Every oppression against law, by colour of any usurped authority, is a kind of destruction, for, quando aliquid prohibetur, et omne, per quod debitur ad illud: and it is the worse oppression, that is done by colour of justice.

"But by the law of the land." For the true sense and exposition of these words see the statute of 37 E. 3, cap. 8 [i. e., 37th year of Edw. III.] where the words by the law of the land are rendered without due process of law, for there it is said, though it be contained in the great charter, that no man be taken, imprisoned or put out of his freehold, without process of the law: that is by indictment or presentment of good and lawfull men, where such deeds be done in due manner, or by writ originall of the common law.

Without being brought in to answere but by due process of the common law.

No man be put to answer without presentment before justices, or thing of record, or by due process, or by writ originall, according to the old law of the land.

Wherein it is to be observed, that this chapter is but declaratory of the old law of England.

[Lord Coke then explains under what circumstances a man may be arrested and imprisoned lawfully; what warrant he who makes the arrest must have; if a writ is required, what it shall contain, and proceeds:]

Imprisonment doth not only extend to false imprisonment, and unjust; but for detaining of the prisoner longer than he ought, where he was at the first lawfully imprisoned.

If the king's writ comes to the sheriffe, to deliver the prisoner, if he detains him, this detaining is an imprisonment against the law of the land.

If the sheriffe or gaoler detain a prisoner in the gaole after his acquitall unless it be for his fees, this is false imprisonment.

Now it may be demanded, if a man be taken, or committed to prison contra legem terrae, against the law of the land, what remedy. hath the party grieved? To this it is answered: first, that every act of parliament, made against any injury, mischiefe, or grievance, doth either expressly or implicitly give a remedy to the party wronged, or grieved; as in many of the chapters of this great charter

appeareth; and therefore he may have an action grounded upon this great charter.

2. He may cause him to be indicted upon this statute at the king's suit.

3. He may have an habeas corpus out of the king's bench or chancery, though there be no privilege, etc., or in the court of common pleas or of exchequer for any officer or priviledged person there; upon which writ the gaoler must retourne by whom he was committed, and the cause of his imprisonment, and if it appeareth that his imprisonment be just and lawfull, he shall be remanded to the former gaoler, but if it shall appeare to the court that he was imprisoned against the law of the land, they ought by force of this statute to deliver him; if it be doubtfull and under consideration he may be bailed.

4. He may have action of false imprisonment.

5. He may have a writ de homine replegiando.

ANONYMOUS CASE, COURT OF KING'S BENCH (1338). Y. B. Mich. 12, Edw. III., No. 23.

In a replevin where the defendant avowed the distress [i. e., seizure of property] for the cause that he was made collector of the fifteenths, etc., and did not show a warrant. Whereupon the plaintiff demanded judgment whether he ought to be received to that avowry without a specialty. It was said that he was sub-collector and had to make an oath, and that he would not have any other warrant. Shareshull (J) said that he could not by law be driven to act in that capacity without a special warrant, and that if he were arrested on that account, he would have a writ of false imprisonment. (Pike's translation.)

REGINALD DE NERFORD'S CASE, COURT OF KING'S BENCH (133940). Y. B. Hil. 11 Edw. III, No. 34.

Note. Reginald de Nerford and others were convicted as disseisors with force and arms wherefore an e.regi facias issued, which writ the sheriff returned to the effect that the king had instructed him by letter under the Targe that he had pardoned them their trespasses and the imprisonment, and commanded that they should not be put to damage on that account and so by reason of the king's message he had done nothing, and he returned the king's

letter.

The King

is blow

the law & cannot Jourruas

Lépleases

Willoughby, J. The letter should have been sent to us, and then we should have 'commanded the sheriff to stay proceedings; but the sheriff could not legally by virtue of any such letter have stayed proceedings otherwise than by warrant from the same place from which he had the order to outlaw. Wherefore the sheriff was in mercy [i. e., was fined] and a fresh exegi facias issued. (Pike's translation.)

FORTESCUE, DE LAUDIBUS LEGUM ANGLIAE, chap. 9.

A King of England cannot, at his pleasure, make any alterations in the laws of the land, for the nature of his government is not only regal, but political. Had it been merely legal he would have a power to make what innovations and alterations he pleased, in the laws of the kingdom, impose tallages and other hardships upon the people, whether they would or no, without their consent, which sort of government the civil laws point out, when they declare Quod principi placuit legis habet vigorem: but it is much otherwise with a king, whose government is political, because he can neither make any alteration or change in the laws of the realm without the consent of the subject, nor burthen them, against their wills, with strange impositions, so that a people governed by such laws as are made by their own consent and approbation enjoy their properties · securely and without the hazard of being deprived of them, either by the king or any other.

DARCY V. ALLEN, COURT OF KING'S BENCH (1603). (Moore, 671.)

In the King's Bench: an action on the case; and a count that, whereas men of mean trades and occupations in the commonwealth apply themselves to idle games with cards, the queen, by way of redress and restraint of this enormity, made letters patent to Ralph Bowes, authorizing him and his factors and deputies to provide playing cards, and prohibiting all others to import playing cards into the realm or to make or sell them in the realm for a certain term of years now expired, and [reciting the grant] she made another like grant to Darcy, who provided cards accordingly; yet the defendant brought cards into the realm and sold them and did things contrary to the privilege granted to the plaintiff, and to his damage. to the amount of £2,000. The defendant pleaded the customs of London that a freeman may buy and sell all things merchantable, and that, since he was a freeman and haberdasher of London, and cards were things merchantable, he bought and sold them; and he

demanded judgement. The plaintiff demurred in law. Afterwards, Mich. 44 and 45 Eliz. (1602) it was argued by Dodderidge, against the patent, and by Fleming, solicitor, with the patent; and afterwards, the same term, by Fuller, against the patent, and Coke, Attorney General, with the Patent. And Dodderidge said that the case was tender, concerning the prince's prerogative and the subject's liberty and must be argued with much caution; for he that hews above his head chips will fall into his eyes, and qui majestatem scrutator principis opprimetur splendore ejus. Yet since it is the honor and safety of the prince to govern by the laws therefore the princes of this realm have always been content that their patents and grants should be examined by the laws, and so is her Majesty that now is. In this examination it has always been held that the queen's grants procured against the usual and settled liberty of the subjects are void, and also those which tend to their grievance and oppression.

It was resolved by Popham, Chief Justice, et per totam curiam, that the said grant to the plaintiff of the sole making of cards within the realm was utterly void, and that for two reasons; 1. that it is a monopoly and against the common law. 2. That it is against divers Acts of Parliament.

CONFERENCE BETWEEN KING JAMES I. AND THE JUDGES OF ENGLAND (1612). (12 Rep. 63.)

Note, upon Sunday, the 10th of November of this same term, the king, upon complaint made to him by Bancroft, Archbishop of Canterbury, concerning prohibitions, was informed that when the question was made of what matters the ecclesiastical Judges have cognizance, either upon the opposition of the statute concerning tithes, or any other thing ecclesiastical, or upon the statute i El. concerning the high commission, or in any other case in which there is not express authority in law, the King himself may decide it in his royal person; and that the Judges are but the delegates of the king, and that the king may take what causes he shall please to determine from the 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.