The Case of Proclamations (1610), Aldred's Case (1610), and the Origins of the Sic Utere/Salus Populi Antithesis
Keywords:
Salus populi Sic utere Aldred’s Case Case of Proclamations Common law nuisance Police powerAbstract
AbstractAt least since the middle of the eighteenth-century, salus populi (the people’s welfare) and sic utere (use your own without injuring others) have encapsulated alternative conceptions of regulatory power, with the former associated with continental police regimes and the latter with Anglo-American conceptions of limited government. This article finds the origins of this antithesis in the intersection of two landmark cases addressed by Coke in the fall of 1610: Aldred’s Case, sic utere’s foundational text, and the Case of Proclamations, where Coke disputed the legality of building and starch proclamations. The Crown had provided common-good justifications for these proclamations, but their beneficiaries had included the individual neighbors of smelly starch makers and obstructive new buildings who had been left unprotected by previously existing local law. Rather than acquiescing to centralized legislation enacted via proclamation or parliament, Coke hinted in Aldred’s Case towards common law nuisance adjudication based on the sic utere principle as the desired mechanism for overriding local law that had privileged injurious land uses. Like salus populi, sic utere served a centralizing function. But whereas the former invited expansive regulatory agendas, the latter conditioned interventions on a judicial finding of a nuisance. In this, Coke’s invocation of sic utere in Aldred’s Case presaged the maxim’s eventual role as a substantive limit on the police power.
References
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Small, Cameralists, 16.
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Christopher G. Tiedeman, A Treatise on the Limitations of the Police Power in the United States: Considered from Both a Civil and Criminal Standpoint (St. Louis: 1886), 4.
4
William Aldred's Case 77 Eng. Rep. 816; 9 Co. Rep. 57b (K.B.).
5
For a description of Aldred's Case as “a mainstay of US jurisprudence “and “a foundation of modern environmental law” see Kathleen A. Brosnan, “Law and the Environment,” in Oxford Handbook of Environmental History, ed. Andrew C. Isenberg (New York: Oxford University Press 2014), 517. See also Daniel R. Coquillette, “Mosses from an Old Manse: Another Look at Some Historic Property Cases About the Environment,” Cornell Law Review 64 (1979): 761–821.
6
Aldred's Case, at 817.
7
Ibid., at 817, 821.
8
Coquillette, “Mosses,” 776.
9
Blackstone said of sic utere that “it is the only restriction our laws have given with regard to oeconomical prudence.” A rule inconsistent with this prinicple, he indicated in the same context, may well have its advantages but would not be “calculated for the genius of a free nation, who claim and exercise the liberty of using their own property as they please.” William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press 1765–69) 1:305.
10
Toulmin Smith, The Laws of England Relating to Public Health […], (London: S. Sweet 1848), 15–22.
11
In the words of Christopher Tiedeman “[T]he police power of the government, as understood in the constitutional law of the United States, is simply the power of the government to establish provisions for the enforcement of the common as well as civil-law maxim, sic utere tuo, ut alienum non laedas.” Limitations of Police Power, 4. By contrast, in defining the police power as “the power of promoting the public welfare by restraining and regulating the use of liberty and property” the progressive jurist Ernst Freund implicitly invoked salus populi. The Police Power: Public Policy and Constitutional Rights (Chicago: Callahgan, 1904), iii. On sic utere and salus populi as competing principles of “law” and “police” in nineteenth century American legal thought, see Markus Dirk Dubber, The Police Power: Patriarchy and the Foundations of American Government (New York: Columbia University Press, 2005), 111–12. On the coexistence of both sic utere and salus populi in nineteenth-century American law, see William J. Novak, The People's Welfare: Law & Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996) 42–50.
12
A third land-use dispute which Coke addressed during the same Michaelmas term was Baten's Case (1611) 77 Eng. Rep. 810, 9 Coke 53b (K.B.). See below discussion in text accompanying notes 122–123.
13
Case of Proclamations (1610) 77 Eng. Rep. 1352; 12 Co. Rep. 74 (K.B.). For a description of the Case of Proclamations as “one of the minor charters of English liberty;” see Joseph Robson Tanner, English Constitutional Conflicts of the Seventeenth Century 1603-1689 ( Cambridge: Cambridge University Press, 1928), 38.
14
See below discussion in text accompanying notes 28–33, 41–46.
15
See below discussion in text accompanying notes 71–88.
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Hilary Ballon, Paris of Henri IV (Cambridge, MA: MIT Press, 1991), 4–7; James Robertson, “Stuart London and the Idea of a Royal Capital City,” Renaissance Studies 15 (2001): 38.
17
Roland Axtmann, “‘Police’ and the Formation of the Modern State: Legal and Ideological Assumptions on State Capacity in the Austrian Lands of the Habsburg Empire, 1500-1800,” German History 10 (1992): 49; and Marc Raeff, The Well-Ordered Police State: Social and Institutional Change through Law in the Germanies and Russia, 1600-1800 (New Haven: Yale University Press, 1983), 43–44, 125, 167.
18
The 1605 proclamation bore striking resemblance to a recently enacted French building code. Both laws required construction with brick, rather than wood, and compliance with guidelines pertaining to alignment with the street and overall form. Paris of Henri IV, 7; and James F. Larkin and Paul L. Hughes, eds., Stuart Royal Proclamations: Royal Proclamations of King James I, 1603-1625 (Oxford: Clarendon Press, 1973), vol. 1, no. 51. A 1608 proclamation explicitly referred to foreign influences in suggesting that builders who defied the requirement for brick “under colour of necessity, or pretended impossibility” “looke abroad & see what is done in other well policed Cities of Europe.” Larkin and Hughes, Stuart Royal Proclamations, no. 87.
19
Raeff, Well-Ordered Police State, 149–50.
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Gerald Strauss, Law, Resistance, and State: The Opposition to Roman Law in Reformation Germany (Princeton: Princeton University Press, 1986), 98.
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Gaines Post, Studies in Medieval Legal Thought: Public Law and the State, 1100-1322 (Princeton: Princeton University Press, 1964), 12–13.
22
Quentin Skinner, The Foundations of Modern Political Thought (Cambridge: Cambridge University Press, 1978), 2:289; and James B. Collins, “State Building in Early-Modern Europe: The Case of France,” Modern Asian Studies 31 (1997): 619.
23
Jean Bodin, Six Bookes of a Commonweale, ed. Kenneth McRae., trans. Richard Knolles (Cambridge, MA: Harvard University Press, 1962), 471.
24
Ioannis D. Evrigenis, “Sovereignty, Mercy, and Natural Law: King James VI/I and Jean Bodin,” History of European Ideas 45 (2019): 1085. An annotated copy of Bodin's Les six livres de la republique was among the few books James is known to have owned. Ibid., 1074.
25
Bates's Case 145 Eng. Rep. 267, 271 (Exchequer).
26
It was in response to such complaints that Edward I prohibited the burning of seacoal in the kilns of craftsmen in London, Calendar of the Patent Rolls Preserved in the Public Record Office: Edward I, A.D. 1281-1292 (London: Her Majesty's Stationary Office, 1893), 207, 296.
27
Bates's Case, at 271.
28
Thomas G. Barnes, “The Prerogative and Environmental Control of London Building in the Early Seventeenth Century: The Lost Opportunity,” California Law Review 58 (1970): 1336.
29
R. Malcolm Smuts, “The Court and Its Neighborhood: Royal Policy and Urban Growth in the Early Stuart West End,” Journal of British Studies 30 (1991): 123, 127.
30
Paul Griffiths, Lost Londons (Cambridge: Cambridge University Press, 2008), 54.
31
Valerie Pearl, “Change and Stability in Seventeenth-Century London,” London Journal 5 (1979): 17n40.
32
W. H. Overall and H. C. Overall, eds., “Buildings,” in Analytical Index to the Series of Records Known as the Remembrancia 1579-1664 (London: EJ Francis 1878), 41–51.
33
London Metropolitan Archive, Rep. 20, fo. 136 (as quoted in Griffiths, Lost Londons, 51).
34
James F. Larkin and Paul L. Hughes eds., Tudor Royal Proclamations: The Later Tudors (1553-1587) (New Haven: Yale University Press, 1969), 2:466, no. 649.
35
Larkin and Hughes, Stuart Royal Proclamations, no. 78.
36
Ibid., no. 51.
37
Ibid., nos. 51, 78.
38
Ibid., no. 78.
39
John Hawarde, Les Reportes Del Cases in Camera Stellata, ed. W. Paley Baildon (London: 1894), 329.
40
For instance, when Sir John Holles was brought before Star Chamber and fined £200 for a building violation in Westminster in 1597, it was after “one of the attorneys” at the nearby Clement's Inn persuaded Coke, who was then attorney general, to act. John P. Ferris and Ben Coates, “Holles, Sir John (c.1567-1637), of Haughton, Notts. and Lincoln's Inn Fields, Mdx. …,” in The History of Parliament: The House of Commons 1604-1629, ed. Andrew Thrush and John P. Ferris (Cambridge: Cambridge University Press, 2010).
41
Joan Thirsk, Economic Policy and Projects: The Development of a Consumer Society in Early Modern England (Oxford: Clarendon Press, 1978) 84; and Ayesha Mukherjee, Penury into Plenty: Dearth and the Making of Knowledge in Early Modern England (London: Routledge, Taylor and Francis Group, 2015) 161.
42
Thirsk, Economic Policy and Projects, 92.
43
A petition submitted around 1730 from residents living outside Paris described the stench from starch as so foul that “it rotted meat.” The problem was such, the petition warned, that left unaddressed, “this noisome smell would, in time, provoke revolt and disorder.” Alan Williams, Police of Paris, 1718-1789 (Baton Rouge, LA: Louisiana State University Press, 1979), 271–72. Starting in 1744, all French starch manufacturers were required to comply with a list of restrictions related to their process and location and were excluded from operating inside Paris. Brian W. Peckham, “Technological Change in the British and French Starch Industries, 1750-1850,” Technology and Culture 27 (1986): 34, 36.
44
Paul Slack, The Impact of Plague in Tudor and Stuart England (London: Routledge, 1985), 27.
45
Larkin and Hughes, Stuart Royal Proclamations, no. 75.
46
Ibid., nos. 107, 112.
47
Ibid., no. 75 (emphasis added).
48
Ibid., no. 112 (emphasis added).
49
Ibid., no. 75.
50
Ibid.
51
Ibid., no. 86.
52
Ibid., no. 107.
53
Ibid., no. 75.
54
Ibid., no. 75. Under one long-entrenched perspective, the building and starch proclamations derived solely from James's greed and desire for power. For a recent example see Philip Hamburger, Is Administrative Law Unlawful? (Chicago: University of Chicago Press, 2014), 45.
55
Overall and Overall, “Buildings,” 99.
56
Larkin and Hughes, Tudor Royal Proclamations, no. 649.
57
35 Eliz. 1, c. 6 (1592-93).
58
Barnes, “Prerogative,” 1360–61.
59
1 H.C. Jour. (1604) 180-81, http://www.british-history.ac.uk/commons-jrnl/vol1/pp180-181.
60
1 H.C. Jour. (April 27, 1607) 2nd Scribe, http://www.british-history.ac.uk/commons-jrnl/vol1/27-april-1607-2nd-scribe.
61
1 H.C. Jour. (1624) 711, http://www.british-history.ac.uk/commons-jrnl/vol1/p711.
62
18 and 19 Car. 2, c 8.
63
Maurice F. Bonds ed., The Manuscripts of the House of Lords: Addenda 1514-1714 (London: Her Majesty's Stationery Office, 1962), 20–21 (3217, March 26, 1586, Recusants Bill).
64
E. W. Hulme, “The History of the Patent System under the Prerogative and at Common Law,” Law Quarterly Review 16 (1900): 49.
65
Ibid; and Larkin and Hughes, Tudor Royal Proclamations, no.794.
66
Harold G. Fox, Monopolies and Patents: A Study of the History and Future of the Patent Monopoly (Toronto: University of Toronto Press, 1947), 76–78.
67
Rudolph W. Heinze, The Proclamations of the Tudor Kings (Cambridge: Cambridge University Press, 2008), 248; and 1 H.C. Jour. (1604) 252, https://www.british-history.ac.uk/commons-jrnl/vol1/p252 (mentioning “B[ill] for Redress of sundry Abuses in Making of Starch”).
68
Heinze, Proclamations, 248.
69
Ibid.; and 1 H.C. Jour. (1604) 376, https://www.british-history.ac.uk/commons-jrnl/vol1/pp376-377.
70
Heinze, Proclamations, 248.
71
Edward Coke, The Third Part of the Institutes of the Laws of England; Concerning High Treason, and Other Please of the Crown, and Criminal Causes (London: E. R. Brooke, 1797), 204.
72
Edward Coke, The Fourth Part of the Reports of Sir Edward Coke … (London: R. Gosling, W. Mears, W. Innys & R. Manby, T. Woodward, F. Clay, A. Ward, J. P. Knapton, T. Wooton, T. Longman, D. Browne, T. Osbornes, H. Lintot, & T. Waller, 1738), v–vi (emphasis added).
73
Edward Coke, The Ninth Part of the Reports of Sir Edward Coke … (London: Joseph Butterworth & Son & J. Cooke, 1826), xxxvi.
74
On Coke's aversion to legal change, see Glenn Burgess, The Politics of the Ancient Constitution (London: Macmillan, 1992), 22.
75
Strauss, Law, 99.
76
Ibid., 102, quoting the early sixteenth century author Ulrich Tengler.
77
Edward Coke, The First Part of the Institutes of the Laws of England; or, a Commentary upon Littleton, ed. Francis Hargrave and Charles Butler (London: J. W. T. Clarke, 1832), 1:62a.
78
Burgess, Politics, 23.
79
Glen Burgess, Absolute Monarchy and the Stuart Constitution (New Haven: Yale University Press, 1996) 174–76,186–87; J. W. Tubbs, The Common Law Mind: Medieval and Early Modern Conceptions, Baltimore: Johns Hopkins University Press, 2000) 154; Alan Cromartie, The Constitutionalist Revolution: An Essay on the History of England, 1450-1642 (Cambridge: Cambridge University Press, 2006), 213, 215; and William Searle Holdsworth, Some Makers of English Law (Cambridge: Cambridge University Press, 1966), 126.
80
Edward Coke, The Eighth Part of the Reports of Sir Edward Coke … (London: R. Gosling, W. Mears, W. Innys & R. Manby, T. Woodward, F. Clay, A. Wards, J. & P. Knapton, T. Wooton, T. Longman, D. Browne, T. Osborne, H. Lintot & T. Waller, 1738), 107. See discussion in Tubbs, Common Law Mind, 155–56.
81
Coke, Third Part of the Institutes, 204.
82
Ibid.
83
Ibid., 201.
84
Andrew Thrush, “The Composition of the House of Commons,” in The History of Parliament: The House of Commons 1604-1629, ed. Andrew Thrush and John P. Ferris (Cambridge: Cambridge University Press, 2010), accessed June 6, 2022 http://www.histparl.ac.uk/volume/1604-1629/survey/v-composition-house-commons.
85
Thomas B. Nachbar, “Monopoly, Mercantilism, and the Politics of Regulation,” Virginia Law Review 91 (2005): 1331.
86
See, for example, Conrad Russel, “A Parliament in Early Stuart England,” in Before the English Civil War: Essays on Early Stuart Politics and Government, ed. Howard Tomlinson (London: Macmillan Press, 1983). For an overview of the revisionist literature and responses to it, see Richard Cust and Ann Hughes, “Introduction: After Revisionism,” in Conflict in Early Stuart England: Studies in Religion and Politics 1603-1642, ed. Richard Cust and Ann Hughes (London: Longman, 1989).
87
Cust and Hughes, “Introduction: After Revisionism,” 26.
88
Johann P. Sommerville, “Ideology, Property and the Constitution,” in Conflict in Early Stuart England: Studies in Religion and Politics 1603-1642, ed. Richard Cust and Ann Hughes (London: Longman, 1989) 49.
89
Cited and discussed in John Baker, The Reinvention of Magna Carta, 1216-1616 (Cambridge; Cambridge University Press, 2017), 392.
90
Johann P. Sommerville, Royalists and Patriots: Politics and Ideology in England, 1603-1640, 2nd Ed. (London: Longman, 1999), 115–17.
91
1 H.C. Jour. (1610) 431, https://www.british-history.ac.uk/commons-jrnl/vol1/pp431-432.
92
Elizabeth Read Foster, Proceedings in Parliament 1610 (New Haven: Yale University Press, 1966), 2:259.
93
Ibid.
94
Ibid. The coupling of centralized legislative and executive powers was a defining feature of emergent continental police regimes. Quoting Marc Raeff, “positive law as embodied in ordinances tended to blur the distinction between law and administrative regulation.” Raeff, Well-Ordered Police State, 150. The option of following this model loomed through much of the Tudor era, splitting English elites. The use of proclamations as means of bypassing the ordinary courts was among the objectives of Henry VIII's Act of Proclamations (1539) and the criticism it precipitated. G. R. Elton, “Henry VIII's Act of Proclamations,” The English Historical Review 75 (1960): 208-22.
95
2 H.L. Jour. 659 (July 23, 1610), https://www.british-history.ac.uk/lords-jrnl/vol2/pp656-662.
96
MS 456, Ellesmere Collection, Huntington Library.
97
Ibid.
98
77 Eng. Rep. 1352; 12 Co. Rep. 74 (K.B.).
99
Ibid., at 1352.
100
Ibid., at 1353.
101
Ibid.
102
Ibid.
103
MS 1576, fol. 18, Harley Collection, British Library, printed in Esther S. Cope, “Sir Edward Coke and Proclamations, 1610,” American Journal of Legal History 15 (1971): 221.
104
Heinze, Proclamations, 256.
105
Warburton's reports, MS. Li.5.25, fol. 160v, Cambridge University Library, translated and discussed in Baker, Reinvention, 395.
106
Ibid.
107
Ibid.
108
Cope, “Coke and Proclamations,” 218.
109
In saying that Coke conceived of Aldred's Case as a response to the interests of landowners who benefitted from the starch and building proclamations, I do not mean to suggest that he intended the case as an urgent intervention in an immediate crisis. Evidence to the contrary comes from the fact that Coke delayed the publication of the case until his ninth report (1613), even as he included other cases from Michaelmas 1610 in his eighth report (1611). The reasons for this delay are unknown but may well have included Coke's desire to avoid a political provocation during a sensitive time. It seems relevant that Coke similarly delayed the publication of Baten's Case, which, as will be discussed, was an assize of nuisance decision relating to new buildings in London. Both cases together positioned the common law as the desirable instrument for addressing the long-standing land-use problems that had generated pressure for royal intervention.
110
R. C. Van Caenegem, The Birth of English Common Law (Cambridge: Cambridge University Press, 1988), 17–18.
111
F. J. C. Hearnshaw, Leet Jurisdiction in England (Southampton: Cox and Sharland, 1908) 43–78; Sidney Webb and Beatrice Webb, English Local Government from the Revolution to the Municipal Corporations Act: The Manor and the Borough (London: Longmans, 1908) 1:21–27; and Christopher W. Brooks, Law, Politics and Society in Early Modern England (Cambridge: Cambridge University Press, 2008) 267.
112
F. J. C. Hearnshaw described the court leet as “incurably weak on its executive side…its eye is keen, its ear is quick, its nose is sensitive, but its arm is feeble.” Leet Jurisdiction, 139.
113
As one Southampton jury put it in 1551, “if the ‘masters of the town’ persist in keeping hogs in the town…the common people say ‘why shullde nott we kepe hoggs who are poore as well as they who are ryche.’” Southampton Record Society, Court Leet Records, vol. 1, bk. 2, ed. F. J. C. Hearnshaw and D. M. Hearnshaw (Southampton: Gilbert, 1905), 22.
114
John Robert Landrey Milton, “The Concept of Nuisance in English Law” (PhD diss., University of Natal, 1978), 149, http://hdl.handle.net/10413/393. Over the course of the seventeenth century, the common nuisance concept was gradually absorbed into the common law. Ibid., 149–55.
115
John Baker, An Introduction to English Legal History, 5th ed. (Oxford: Oxford University Press, 2019), 250–52.
116
Ibid., 451–53.
117
Ibid., 69–70.
118
Baker, Introduction to English Legal History, 454–55; and David J. Ibbetson, A Historical Introduction to the Law of Obligations (Oxford: Oxford University Press, 1999), 95.
119
John Baker, The Oxford History of the Laws of England: Volume VI, 1483-1558 (Oxford: Oxford University Pres, 2003), 777.
120
Baker, Introduction to English Legal History, 454–55; and Ibbetson, Historical Introduction, 95–106.
121
Milton, “Concept of Nuisance in English Law,” 101.
122
Baten's Case, 77 Eng. Rep., at 810.
123
Ibid., at 811.
124
Barnes, “Prerogative,” 1347.
125
Griffiths, Lost Londons, at 50.
126
This was the second of two cases in which Coke addressed the availability of abatement as a remedy against interference from new buildings. The first was his report on Penruddock's Case (1598) 77 Eng. Rep. 210; 5 Co. Rep. 100b.
127
Baten's Case, 77 Eng. Rep., at 812.
128
Baten's Case, in Coke, Ninth Part of the Reports, at 95nB (“Vide . . . Aldred's Case, post. P. 103”). https://hdl.handle.net/2027/nyp.33433009487152?urlappend=%3Bseq=150%3Bownerid=27021597768693680-158
129
John Herne, The Pleader; conttaining Perfect Presidents and Forms of Declarations, Pleadings… (London: Henry Twyford, Thomas Dring, and Timothy Twyford, 1657), 180. The quoted text appears in Latin at the start of Coke's report.
130
Aldred v. Benton (1610) (C.P.), MS 1192, fol. 206r-206v (formerly catalogued at MS 2069, fol. 206v), Harvard Law School, MS. add. 25209, fol. 211v, British Library, translated in John Baker, Baker and Milsom Sources of English Legal History: Private Law to 1750 (Oxford: Oxford University Press, 2010), 659.
131
Aldred's Case, 77 Eng. Rep. at 817.
132
Ibid., at 821. Coke's statement on the actionability of lime-kiln smoke built on Dalby v. Berch (1330) Y.B. Trin. 4 Edw. III, fol. 36, pl. 26; 4 Lib. Ass. 3. Cited and discussed in Baker, Sources, 655n47. On the rule regarding the corruption of water from a lime pit for calf skins, Coke says that it was “adjudged in 13 (f) H. 7. 26. b.” Aldred's Case, 77 Eng. Rep. at 816. This is likely a reference to Prior of Christ Church, Canterbury v. Hore (1493) CP 40/922, m. 244d; and Selden Soc. vol. 115, p. 176, translated in Baker, Sources, 644.
133
Aldred's Case, 77 Eng. Rep. at 821. The Latin translates to “It is forbidden for anyone to do [or make] on his own land what may injure another; use your own without injuring others.”
134
E. G. Dawson, A History of Lay Judges (Cambridge, MA: Harvard University Press, 1960), 269.
135
Sudha Shenoy, Towards a Theoretical Framework for British and International Economic History (Auburn, AL: Ludwig von Mises Institute, 2010), 482.
136
Thirsk, Economic Policy and Projects, 91; and Hannah Velten, Beastly London: A History of Animals in the City (London: Reaktion Books, 2013), 27–28. Well into the nineteenth century, starch makers were known to feed large numbers of swine. John Ayrton Paris and John Samuel Martin Fonblanque, Medical Jurisprudence (London: W. Phillips, George Yard 1823), 1:332.
137
Aldred v. Benton, at 659.
138
David Chan Smith, Sir Edward Coke and the Reformation of the Law (Cambridge: Cambridge University Press, 2014), 164.
139
Rankett's Case (1605) 2 Rolle Abr. 139 (KB), cited and translated in Baker, Sources, 661n69.
140
Ian Williams, “Legal Maxims and Early-Modern Common Law,” in Law in Theory and History, ed. Maksymilian Del Mar and Michael Lobban (Oxford: Hart Publishing, 2016) 180–205; Tubbs, Common Law Mind, 66, 173–78; and Smith, Sir Edward Coke, 159–60.
141
Coke, First Part of the Institutes, 1:10b–11a, 67a.
142
Sic utere is typically described as a maxim. For a recent example of this designation, see Baker, English Legal History, 5th ed. (Oxford: Oxford University Press, 2019), 455. As Coke himself did not describe sic utere as a maxim, however, the claim that he intended it as such requires justification. As Ian Williams has cautioned, Coke at times could use “a pithy Latin statement,” to summarize an argument, rather than suggesting a maxim. Maxims were distinguished by two features: Formulations as “narrow rules of law,” and a concern with “property alone.” Williams, “Legal Maxims,” 190, 197. Sic utere, both because it related to property, and because Coke described it in Aldred's Case as a “rule of law and reason,” satisfied both criteria. 77 Eng. Rep. at 821.
143
“[I]uris praecepta sunt haec: honeste vivere; alterum non laedere, suum cuique tribuere” (The precepts of law are these: to live honestly, to injure no one, [and] to give to each his own). B. Moyle, trans., The Institutes of Justinian, 3rd ed. (Oxford: Clarendon Press 1896), 3.
144
Getzler, Joshua, A History of Water Rights at Common Law (Oxford: Oxford University Press, 2004) 123-24Google Scholar; and Smead, Elmer E., “Sic Utere Tuo Ut Alienum Non Laedas: A Basis of the State Police Power,” Cornell Law Review 21 (1936): 277Google Scholar.
145
Sir John Baker dates the case under discussion (Hales Case) to 1569 based on its close similarity to a case decided that year in Queen's Bench. Sources, 652n41. Getzler describes A brief declaration as “possibly a moot case.” Water Rights, 124n25.
146
Hale's Case, at 652.
147
Ibid.
148
Ibid., at 654, 656.
149
Ibid., at 654.
150
Bland v. Moseley (1587) Harvard Law School MS. 16, fol. 402; Cambridge University Library MS. Ii 5. 38 fol. 249, translated in Baker, Sources, 657. See also Coke's account of the case in John Baker, Reports from the Notebooks of Edward Coke (Selden Society, forthcoming), 347b.
151
Bland, at 657.
152
Bland, at 658.
153
Edwards v. Halinder (1594) 2 Leon 93, pl. 116 (Exchequer), in Baker, Sources, at 665.
154
Edwaardes v Holmenden (1594); Baker, Reports from the Notebooks, 596b.
155
Aldred v. Benton, at 659. Reference is made to a 1619 Common Pleas case in which the defendant justified the use of a hogsty against a nuisance action “by prescription.” The outcome is not clear, but as the reference is attached to a report on Aldred's Case, the suggestion appears to be that the argument from prescription failed. Herne, Pleader, 180.
156
Larkin and Hughes, Stuart Royal Proclamations, no. 75.
