The Online Library of Liberty

A project of Liberty Fund, Inc.

• Acknowledgments and Dedicatory
• A Note On the Texts, Editions, and Translations
• Introduction
• Chronology of Events
• Editions of Coke’s Works
• Mottoes and Crests of Sir Edward Coke
• I: Reports
• Part One of the Reports
• The Preface to the Reader.
• Shelley’s Case.
• Part Two of the Reports
• (preface) to the Learned Reader.
• Manser’s Case.
• The Case of Bankrupts.
• |[46 A] the Archbishop of Canterbury’s Case. *
• Part Three of the Reports
• (preface) to the Reader.
• Heydon’s Case.
• Fermor’s Case.
• Part Four of the Reports
• (preface) to the Reader.
• The Lord Cromwell’s Case. *
• Cutler V. Dixon.
• Vaux’s Case.
• Slade’s Case.
• Part Five of the Reports
• (preface) to the Reader.
• Foster’s Case.
• Cases of By-laws and Ordinances the Chamberlain of London’s Case.
• Clark’s Case.
• The Case of Market-overt.
• Semayne’s Case.
• Rooke’s Case.
• Pinnel’s Case.
• |[125 A] the Case De Libellis Famosis.
• Part Six of the Reports
• (preface) to the Reader.
• Jentleman’s Case.
• Part Seven of the Reports
• (preface) Deo, Patriae, Tibi. 2
• Calvin’s Case, Or the Case of the Postnati. 1
• The Case of Swans.
• Penal Statutes.
• Part Eight of the Reports
• (preface) Deo, Patriae, Tibi. 3
• Vynior’s Case. *
• Dr. Bonham’s Case.
• The Case of Thetford School, &c.
• Part Nine of the Reports
• (preface) Deo, Patriae, Tibi. 3
• William Aldred’s Case.
• John Lamb’s Case.
• Mackalley’s Case. (in the Killing of the Sergeant of London.)
• Part Ten of the Reports
• (preface) Deo, Patriae, Tibi. 5
• The Case of Sutton’s Hospital.
• The Case of the Isle of Ely.
• Part Eleven of the Reports
• (preface) Deo, Patriae, Tibi. 4
• The Lord De La Warre’s Case.
• The Case of the Tailors of Habits &c. of Ipswich.
• The Case of Monopolies.
• James Bagg’s Case.
• Part Twelve of the Reports
• Ford and Sheldon’s Case.
• Case of Non Obstante, Or Dispensing Power.
• Q. If High Commissioners Have Power to Imprison.
• Floyd and Barker.
• Of Oaths Before an Ecclesiasticall Judge Ex Officio.
• Of Pardons.
• Customs, Subsidies, and Impositions.
• Buggery. 1
• Premunire.
• Nicholas Fuller’s Case.
• Sir Anthony Roper’s Case.
• Sir Anthony Roper’s Case.
• The Case of Heresy.
• Langdale’s Case.
• Mouse’s Case.
• Prohibitions Del Roy.
• The Lord Aburgaveney’s Case.
• Of Convocations.
• Proclamations.
• Thomlinson’s Case.
• Walter Chute’s Case.
• Sir Stephen Procter’s [proctor’s] Case.
• Exaction of Benevolence.
• Part Thirteen of the Reports
• (preface) to the Reader.
• Prohibitions.
• The Case De Modo Decimandi, 1 and of Prohibitions, Debated Before the Kings Majesty.

Part Three of the Reports

The Third Part of Coke’s Reports was published in 1602. It was originally published in Law French and entitled Le Tierce Part Des Reportes Del Edvvard Coke Lattourney general le Roigne, de Divers Resolutions & Judgements donnes avec graunde deliberaction, per les tresreurened Judges, & Sages dea la ley, de cases & matters en ley queux ne sueront vnques resolve ou adjudge par deuant, & les reasons & causes des dits resolutions & Judgements, durant les tresheureux regiment de tresillustre & renomes Royne Elzabeth, le fountaine de tout Justice & la vie de la ley. In English, The Third Part of the Reports of Sir Edward Coke, Knight., Her Majesty’s Attorney-General, of divers resolutions and Judgements given with great deliberation, by the most reverend Judges and Sages of the Law, of Cases and matters in law which were never Resolved or Adjudged Before: and the Reasons and Causes of the said resolutions and Judgments, during the most happy Reign of the most Illustrious and Renowned Queen Elizabeth, the Fountain of all Justice, and the life of the Law. The cases in this part continue to discuss issues of property, with an emphasis on cases of first impression resolving recent issues of statutory construction and the legal definitions of estates in land. There is a greater emphasis in these cases, though, of matters dealing with relations between husband and wife, as well as guardianship and inheritance. There are also more cases considering the nature of leaseholds and the problems of debtors and creditors.

Epigrams from the title page:

(Preface) To the Reader.

How profitable and necessarie the Reports of the Judgements and Cases in Law published in former ages have beene, may unto the learned Reader by these two considerations amongst others evidently appeare. First, that the Kings of this Realme, that is to say, Edward the third, Henry the fourth, Henry the fifth, Henry the sixth, Edward the fourth, Richard the third, and Henry the seventh did select and appoint foure discreet and learned professors of Law, to report the judgements and opinions of the Reverend Judges, as well for resolving of such doubts and questions wherein there was (as in all other Arts and Sciences there often fall out) diversitie of opinions, as also for the true and genuine sense and construction of such Statutes and Actes of Parliament, as were from time to time made and enacted. To the end that all the Judges and Justices in all the severall parts of the Realme might as it were with one mouth in all mens cases pronounce one and the same sentence, whose learned workes are extant and digested into Nine severall volumes, wherein if you observe the unitie and consent of so many severall Judges and Courts in so many successions of ages, and the coherence and concordance of such infinite severall and divers cases, (one as it were with sweet consent and amitie proving and approving another) it may be questioned whether the matter be worthy of greater admiration or commendation: For as in nature we see the infinite distinction of things proceed from some unitie, as many flowers from one root, many rivers from one fountain, many arteries in the body of man from one heart, many veyns from one liver, and many sinewes from the braine: So without question, Lex orta est cum mente divina,1 and this admirable unitie and consent in such diversitie of things proceed from God the fountaine and founder of all good Lawes and constitutions. Secondly, in consideration of the sweet and delectable fruit that hath beene reaped by those workes for the due administration of justice, and the government of the Realme in peace and tranquilitie. Besides these there bee Reports fit for stronger capacities of equall authority, but of lesse perspicuity then the other, and these bee the judiciall records of the Kings Courts, wherein cases of importance and difficultie are upon great consultation and advisement adjudged and determined, in which Records the reasons or causes of the Judgements are not expressed; For wise and learned men doe before they judge, labour to reach to the depth of all the reasons of the case in question, but in their judgements expresse not any: And in troth, if Judges should set downe the reasons and causes of their judgements within every Record, that immense labour should withdraw them from the necessarie services of the Common-wealth, and their Records should grow to be like Elephantini libri2 of infinite length, and in mine opinion lose somewhat of their present authoritie and reverence; And this is also worthie for learned and grave men to imitate. But mine advise is, that whensoever a man is enforced to yeeld a reason of his opinion or judgement, that then hee set downe all authorities, presidents, reasons, arguments, and inferences whatsoever that may bee probably applied to the case in question; For some will be perswaded, or drawne by one, and some by another, according as the capacitie or understanding of the hearer or reader is. These Records for that they containe great and hidden treasure, are faithfully and safely kept (as they well deserve) in the Kings treasurie: And yet not so kept but that any Subject may for his necessary use and benefite have accesse thereunto, which was the auncient Law of England, and so is declared by an Act of Parliament in 46. Ed. 3. in these words “Item pria les Commons, quecomerecorde&quecunque; chose en la Court le Roy de reason devoient demurr’ illonques pur perpetual evidence, & eide de toutz parties a ycelly, & de touts ceux a queux ea nul maner ils atteignent, quant mestier lour fuit. Et ia de novell refusent en la court nostre dit Seign’ de serche ou evidence encounter le Roy ou disadvantage de luy; Que pleise ordeiner per estatute, que serche & exemplification soit faitz as toutz gentz, de queconque recorde que les touche en ascun maner’, auxybien de ce que chiet encounter le Roy come autres gentz. Le Roy le voet”:3 Right profitable also are the auncient bookes of the Common Lawes yet extant; as Glanvile, Bracton, Britton, Fleta, Ingham, and Novae narrationes, and those also of later times, as the Old Tenures, Olde Natura brevium, Littleton, Doctor and Student, Perkins, Fitzh. Natura brevium, and Stamford, of which the Register, Littleton, Fitzherbert, and Stamford are most necessarie and of greatest authoritie, and excellencie; And yet the other also are not without their fruit. In reading of the cases in the Bookes at large, which sometimes are obscure and misprinted, if the Reader after the diligent reading of the case, shall observe how the case is abridged in those two great Abridgements of justice Fitzherbert, and Sir Robert Brooke, it will both illustrate the case, and delight the Readers; And yet neither that of Statham, nor that of the Booke of Assises istoberejected: And for pleading the great Booke of Entries is of singular use and utilitie. To the former Reports you may adde the exquisite and elaborate Commentaries at large of Master Plowden, a grave man and singularly well learned; and the summarie and fruitfull observations of that famous and most reverend Judge and sage of the Law, Sir James Dyer Knight, late chiefe Justice of the Court of Common Pleas, and mine owne simple labours: Then have you 15. Bookes or Treatises, and as many volumes of the Reports, besides the Abridgements of the Common Lawes; For I speake not of the Statutes and Actes of Parliament, whereof there bee divers great volumes. And for that it is hard for a man to report any part or branch of any Art or Science justly and truely, which hee professeth not, and impossible to make a just and true relation of any thing that he understands not; I pray thee beware of Chronicle Law reported in our Annales, for that will undoubtedly lead thee to error: For example, they say that William the Conquerour decreed that there should be Sheriffes in every Shire, and Justices of Peace to keepe the Countries in quiet, and to see offenders punished, whereas the learned know that Sheriffes were great officers and ministers of justice, as now they are, long before the Conquest, and Justices of Peace had not their being untill almost three hundred yeares after, viz. in the first yeare of Edward the third. But the module of a Preface will not suffer mee to enter into that matter, whereat my minde began to kindle: I will onely (to incite the studious Reader to the diligent observation of the Bookes, wherein bee hidden infinite treasure of knowledge,) note unto thee divers excellent things worthie thy observation out of the booke case in vicesimo sexto libro Assisarum placito 24.4 for a president for thee to follow in many other cases: There it appeareth, that in a Writ of Assise the Abbot of B. claimed to have Conusauns of plea, and writs of Assise, and other originall writs out of the Kings Courts by prescription time out of minde of man, in the times of Saint Edmund, and Saint Edward the Confessor, Kings of this Realme before the Conquest; and shewed divers allowances thereof, and that King Henry the first confirmed their usages, and that they should have conusance of Pleas, so that the Justices of the one Bench, or the other, should not intermeddle, out of which Record (being now above three hundred yeares past) it appeareth, that the predecessors of that Abbot had time out of minde of man in those Kings raignes (that is whereof no man then knew the contrarie, either out of his owne memorie, or by any Record, or other proofe) writs of Assise, and other originall writs out of the Kings Courts. Now albeit that the learned do know that originall writs are directed to the Sheriffe of the Countie where the land doth lie, yet it is not impertinent to set downe the forme of the writ of Assise for the better manifestation of divers things worthy of observation. Rex Vicecomiti salutem: Questus est nobis. A. quod B. iniuste & sine iudicio disseisiuit eum de libero tenemento suo in E. & c. Et ideo tibi praecipimus, quod si praedict. A. fecerit te securum de clamore suo prosequendo, tunc facias tenementum illud reseisire de catallis quae in ipso capt’ fuer’, & ipsum tenementum cum catallis esse in pace usque ad primam Assisam cum justiciarii nostri in partes illas venerint, & interim fac’xij, liberos & legales homines de vicineto illo vide-re tenementum illud. Et nomina eorum imbreviar’ &’c.5 And this forme of writ appeareth in Bracton lib.4. cap.16.and in Glanvile in his 13. Booke, who wrote not long after the Conquest: Out of which I gather foure things. 1. That time out of minde of man before the Conquest there had been Sheriffes, for the writ of Assise, and every other originall writ is directed to the Sheriffe, and cannot be directed to any other, unlesse it be in speciall cases to the Coroner, who then stands in the place of the Sheriffe. 2. That likewise by all that time there were trials by the oath of twelve men: for the words of the writ of Assise are, Et interim fac’. 12. liberos & legales homines &’c.6 3. That by like time there had beene writs of Affife and other originall writs retournable into the Kings Courts, which (seeing they be as Justice Fitzberbert saith in his preface to his booke of Natura brevium, the rules and principles of the science of the Common Law) doe manifestly prove, that the Common Law of England had beene time out of minde of man before the Conquest, and was not altered or changed by the Conquerour. 4. That by all that time there had beene a court of Chauncerie, for all originals doe issue out of that Court, and none other: And in our bookes it appeareth, that all those Mannors that were in the hands of Saint Edward the Confessor, are to this day called Auncient demesne; And that all King Edward the Confessors tenants in Assisis, Iuratis, seu recognitionibus poni non debent;7 which immunity and priviledge remaines to the tenants of those manors, to whose hands soever the same bee come, to this day; And this appeareth by the booke of Domes-day now remaining in the Eschequer, which was made in the raigne of Saint Edward the Confessor, as it appeareth in Fitzh. Nat. Breuiū fol. 16. So as without controveisie the triall by Juries, who ever were returned by Sheriffes, was before the Conquest. In the Booke of Domes-day you shall also reade, that Ecclesia sanca Mariae de Worcester habet Hundred’ voc’ Oswaldshaw, in qua iacent 300. hidae, de quibus Episcopus ipsius Ecclesiae a constitutione antiquorum temporum habet omnes Redditiones Socharum, & omnes consuetudines inibi pertinentes ad dominicum victum, & Regis servitium & suum: Ita ut nullus Vicecomes ullam ibi habere possit quaerelam, nec in aliquo placito, nec in aliqua qualibet causa,8 And it appeareth by the Charter it self, that King Edgar long before the Conquest, granted to the Church of Worcester the said franchises and hereditaments; whereby it is evident that then there were Sheriffes: And that the Sheriffes had then a Court and determined causes, held Pleas by plaint as to this day they doe, and that there were Redditiones Socharum,9 which prove Socage tenure, and Regis servitium10 knights service, then called Regis servitium, because it was done to or for the King, and the Realme: The same King granted the like Charter to the Monasterie of Saint Andrew, in Ely, viz. 2. hundreds within the Isle, and 5. and a halfe without, together with viewes of franke pledge, and by expresse words, that no Sheriffe should intermeddle within the same; But this much (if in a case so evident it be not too much) shall suffice. But if you will give any faith to them, let it be in those things they have published concerning the antiquitie, and honour of the Common Lawes: First, they say that Brutus the first king of this land, as soone as hee had settled himselfe in his kingdome, for the safe and peaceable government of his people wrote a book in the Greeke tongue, calling it the lawes of the Britans, and hee collected the same out of the Laws of the Trojans: This king, they say, died after the creation of the World, 2850. yeares, and before the Incarnation of Christ 1130. years, Samuel then being Judge of Israel. I will not examine these things in a Quo warranto,11 the ground thereof I thinke was best knowne to the Authors and writers of them; but that the Lawes of the auncient Britans, their contracts and other instruments: and the Records and judiciall proceedings of their Judges were written and sentenced in the Greeke tongue, it is plaine and evident by proofs luculent & uncontrolable: for the proofe whereof I shall be enforced onely to point out the heads of some few reasons, yet so as you may prosecute the same from the fountaines themselves at your good pleasure, and greater leasure. And first take a just testimonie out of the Commentaries of Julius Caesar, (whose relations are as true, as the stile and phrase is perfect.) Hee in his 6. Booke of the Warres of France faith, that in antient time the Nobilitie of France were all of two sorts, Druides or Equites; the one for matters of government at home, the other for martiall empolyments abroad: To the Druides appertained the ordering as well of matters Ecclesiasticall, as the admiration of the Lawes and government of the Common-wealth; for so he saith, De omnibus controversiis publicis privatisq; constituunt & c. & si quod est admissum facinus, si caedes facta, si de haereditate, de finibus controversia est, decernunt praemia, poenasq; constituunt.12 Concerning the mysteries of their Religion, they neither did, nor might commit them to writing, but for the dispatching and deciding of causes, as well publique as private saith hee, Graecis literis utuntur,13 they used to doe it in the Greeke tongue, to the end that their disciplines might not be made common among the vulgar: Now then this being granted that the Druides did customarily sentence causes, and order matters publike and private in the Greeke language, it will easily follow, that the very same was likewise used here in Brittanny, and the consequence is evident and necessarie, for that the whole society, and all the discipline of the Druides in France, was nothing else but a very Colony taken out from our British Druides, as Caesar himselfe in the same place affirmeth, from whence they learned and received all their discipline for managing of causes whatsoever. Disciplina Druidum (saith he) in Britannia reperta, atq; inde in Galliam translata: Et nunc qui diligentius illam disciplinam cognoscere volunt, in Britanniam discendi causa proficiscuntur.14 The very same witnesseth Plinie also Lib. 3. ca. I. towards the end. Nay their very name and appellation may serve for a proofe of the use of the Greeke tongue, they being called Drudes of δρῦς an Oake, because saith Plinie they frequent woods where oakes are, and in all their sacrifices use the leaves of those trees. Adde secondly to this, the daily commerce and trafique betwixt those Britans and French so much spoken of by Caesar, Strabo, and Pliny: And therefore no doubt but they used one and the same forme of covenanting by writing; which, that it was in Greeke, Strabo plainly affirmeth Lib.4. Geographiae, that the Massilienses a Greek Colonie, and as hystories report the chiefest merchants then in the world next the Phoenicians, so spread abroad the desire of learning their language, that even vulgarly, instancing therein the French Nation, they did τὰ συμβόλαια Ἑλληνιστὶ γράφειν,15 write saith hee their deeds and obligations in Greeke; And that there passed continuall traffique likewise betwixt these very Massiliens and the Britaines, Strabo in the same place directly affirmeth, in that saith he they vied to fetch tin from the British Islands to Massalia ἐκ τῶν Βρεταννικῶν νησῶν εἰς τὴν Μασσαλίαν κομίσεσθαι16 and for this it is that Juvenall who wrote above 1500. yeares past in his 15. Satyre saith, Gallia caussidicos docuit facūda Britannos:17 Not that the French men did teach the Lawyers of England to be eloquent, (which Caesar a most certaine Author denieth) but that a Colonel of Grecians residing in France as Strabo saith, Gallia was said to teach the Professors of the Lawes of England, being written in the Greeke tongue, Eloquence. Now for matters of Religion, Strabo in his 4. book observeth that the Britaines worshipped Ceres and Proserpina, and sacrificed unto them according to the Greeke forme of superstition as they did ἐν τῇ Σαμοθράκῃ,18 in Samos. Lastly, that as well the Grecians had trafique here, as that their language was not unknown to the auncient Britaines, the very names given unto this our Countrey doe declare and prove: For Bret (from whence our Writers as from an old British word derive the appellation of this Island and inhabitants, because the ancient Britaines were wont to paint their bodies, & in Juvenall are called Picti Britanni,19 which was said Caesar lib. 5. to make them seem fearfull in fight to their enemies) the same word in that very signification is Greek, and τὸ βρέτας20 in Aeschylus and Lycophoron signifies a picture: Now the other part of the word τανία21 it is in Greeke as much as Land or Countrey: I omit the name Albion, at the first Olbion, or the happy Island, in Greek, together with a great multitude of English words, as Chirographer, Prothonot. Ideote & c. yet tasting of a Greek beginning: For that hereby as I think it is sufficiently proved that the lawes of England are of much greater antiquity than they are reported to be, & than any the Constitutions or Lawes imperiall of Roman Emperors. Now therefore to return to our Chronologers, they further say that 441. yeares before the Incarnation of Christ, Mulmutius, of some called Dunvallo M. of some Dovebant, did write 2. Bookes of the Lawes of the Britons, the one called Stat. Municipalia, and the other Leges Judiciariae, for so the same doe signifie in the British tongue, wherein he wrote the same, which is as much to say as the Statute Law, & the Common Law: And 356. yeares before the birth of Christ, Mercia Proba Queen. & wife of King Gwintelin wrote a booke of the Lawes of England in the British tongue, calling it Merchenleg: King Alfred, or Alured King of the West Saxons, 871. years after Christ wrote a Book of the laws of England, and called the same, Breviarum quoddam qd’ composuit ex diversis legibus, Troianorum, Graecorum, Britannorum, Saxonum, & Dacorum:22 In the year after the incarnation of Christ 653. Sigabert or Sigesbert orientalium Anglorum Rex, wrote a Booke of the Lawes of England, calling it Legum instituta23 King Edward of that name before the Conquest the 3. Ex immensa Legum congerie, quas Brittanni, Romani, Angli, & Daci condiderunt, optima quaeq; selegit, ac in unam coegit, quam vocari voluit Legem communem:24 These and much more to like purpose shall you read in Gildas, Gervasius Tilburien. Galfrid. of Mont-mouth, Will’ of Malmsbury, Hoveden, Matthew of Westminster, Polidor Virgil’ of Harding, Caxton, Fabian, Baleus, & others: So as it appeareth by them, that before the Conquest there were amongst others 7. Volumes or bookes intituled, Leges Britannorum, Statuta Municipalia, Leges Judiciariae, Marchenleg, Breviariŭ legum, Legum Instituta, & Communes Lex. Cum insignis subactor. Angliae Rex Will’ ulteriores insulae fines suo subiagasset imperis, & rebelliũ mentes terribiliũ perdomuisset et exemplis, ne libera de caetero daretur erroris facultas, decrevit subiectum sibi populũ Juri scripto legibusq; subiicere: Propositis igitur Legibus Anglicanis secundum tripartitam eorum distinctionem, hoc est, Marchenleg, Daneleg, & West-Saxonleg, quasdam reprobavit, quasdam autĕ approbans transmarinas Newestriae leges, que ad regnipacem tuenda efficacissimae & videbantur adiecit.25 This saith Gervasius Tilburiensis, one that wrote in the Conquerors time, or shortly after him: Whereby if the same were admitted, it appeareth that some of the English Lawes hee allowed, and such of his owne as he added where efficacissimae ad Regni pacem tuendā,26 and therefore if such Lawes as he added of his owne had continued (as in troth they did not) they were not so shamelessely and falsly to be slandered, as some maliciously and ignorantly have done; of whom I onely say:

• Aut haec in nostros fabricata est machina muros,
• Aut aliquis latet error, equo ne credite Teucri.27

For thy satisfaction herein, heare what Sir Jo. Fortescue knight, chief Justice of England, a man of excellent learning and authority, wrote of this matter lib. I. cap. 17. speaking of the Lawes of England; Quae si optimae & non extitissent, aliqui Regum illorum justitia, ratione, seu affectione cōncitati eas mutassent, aut omnino delevissent, & maxime Romani qui legibus suis quasi totum orbis reliquum judicabant.28 After the Conquest, King Henry the first the Conquerors sonne, surnamed Beauclerke, a man excellently learned, because he abolished such customs of Normandy as his father added to our Common Lawes, is said to have restored the ancient lawes of England: King Henry the second wrote a book of the Common Lawes and statutes of England, [divided into two tomes,] and according to the same division, intituled the one pro Republica Leges,29 and the other Statuta Regalia,30 whereof not any fragment doth now remaine. And yet by the way I could but smile when I read in some of them, that when Cardinal Woolsey at the last perceived untrue surmises and fained complaints for the most part of such poore people as laded him with Petitions, he then waxed weary of hearing their causes, & ordained by the Kings Commission divers under Courts to heare complaints by Bill of poore people; The one was kept in the White hall, the other beforethe Kings Almoner Doctor Stokesly, a man that had more learning then discretion to be a Judge: the third was kept in the Lord Treasorers Chamber beside the Starre-chamber: and the fourth at the Rolles at the afternoone: These Courts were greatly haunted for a time, but at the last the people perceived that much delay was used in these Courts, & few matters ended, & when they were ended, they bound no man by the Law, then every man was weary of them, and resorted to the Common Law: but Tractent fabrilia fabri;31 and yet it were to be wished, that they had kept themselves within their proper element, for peradventure with wise men some of them have reaped the reward of those that are not beleeved when they say the troth. To the grave and learned writers of Histories my advice is, that they meddle not with any point or secret of any Art or science, especially with the lawes of this realm, before they conferre with some learned in that profession. And where it is reported that it was not lawfull for any common person to use any Seale toany Deed, Charter, or other Instrument in the raigne of Henry the second nor long after, And therefore Richard Lacie chief Justice of England in the raigne of Henry the second is said to have reprehended a common person for that he used a patent Seale, when as that pertained as he said to the King and Nobility only; Against which, Ingulphus Abbot of Croyland, who is said to have come in with the Conqueror, saith, Ante Normannorum ingresssum chirographa firma erant cum crucibus aureis, aliisque signaculis sed normannos cum cerea impressione uniuscuiusque; speciale sigillum sub intitulatione trium vel quatuor testium conficere chirographa instituere.32 By which it appeareth that in the Conquerors time every man might seale with a private seale. But letting these passe, and to beleeve neither till both of them be agreed, in troth it was ever unlawfull for a gentleman to usurpe the armes of seales of another; and to forge or counterfait the seale of any other was unlawfull for any. But otherwise it was never unlawful for any Subject to put his owne seale to any Instrument, as may appeare by infinite Presidents, amongst which for an instance I thought good here to remember one for all, which Master Joseph Holland of the Inner Temple a good Antiquary and a lover of learning delivered unto me, and beareth date Ann. 33. H. 2. and is sealed at this present with two faire ancient Seales, viz. of Walter of Fridaltorpe and Helias his sonne: and for that it containeth divers matters worthy observation, I thought good to exemplifie it to the Reader de verbo in verbum. Haec est concordia facta in Comitatu Eborum die Lunae proxime post festum Sancti Hillarii anno regni regis Henrici secundi tricesimo tertio, inter Walterum de Fridastorpe & Heliam filium eius, & inter Johannem de Beverlaco, scilicet de une carucata terrae in Fridastorpe, quam predict Joh. clamavit versas eos in eodem Comitatu sicut jus & haereditagium fuum per breve domini Regis, scil, quod praedict Walt & Helias filius eius dederunt, & reddiderunt praedict Joh. pro clameo & recto suo quod in ipsa terra habuit, unam dimid’ carucatam terrae in eadem villa, & unam tostum, scilicet illam dimid’ carucatam terrae quae iacet inter terram Galfrid’ Wanlin & inter praedict’ carucatam terrae quam clamavit, & illud tostum quod iacet inter terram Adae filie Norman’ de Sezevall, & terram Hen. fillii Thom. plenarie cum omnibus pertinentiis suis infra villam & extra, sine ullo retenemento; Hanc vero dimid’ carucatam terrae & tostam plenarie cum omnibus pertinentiis suit tenebit predict’ Joh. & haered’ sui de praedict’ Heliae heredibus suis: Reddendo inde annuatim praedict’ Heliae & haeredibus suis 12. d. ad terminum Pentecost, pro omnibus servitiis que ad terram illam pertinent: Et praedict’ Walterus & Helias & haered’ sui warrantizabūt praedict’ Jobanni & haeredibus suis praefat’ dimit’ carucatam terrae & tostum, cum omnibus pertinentiis contra omnes homines: Hanc vero concordiam ex utraque parte affidaverunt firmiter & fine dolo tenend’ ficut praesens chirographum testatur: & saepe dictus Walterus atturnavit praedict’ Johannem in eodem Comitat’ ad faciendum praedict’ servicium praedict’ Heliae filio suo, & haeredibus suis; His testibus Remigio Dapifero, Ranulpho de Glanuill’ tunc Vicecomite Eborum, Ranulpho filio Walteri, Rogero de Badnut, Warino de Rollesby, Alano de Sinderby, Radulpho filio Radulph. Will’ de Aton’, Nic. de Warham, Roberto de Mara, Alano filio Heliae, Roberto de Melsa, Thom. filio Jodlani, Walram, filio Will’ Waltero de Bomadnum, Alano Malebacke, Adamo de Killũ, Roberto de Malteby, Gilberto de Torini Willihelmo Agullũ, Gilberto filio Richardi, Willihelmo de Backestorpe, Helia Latimer; By which Writ the King commanded the Lord: on Quod sine dilatione plenum rectum teneat Johanni de Beverlaco de una caracata terrae cū pertinentiis in Fridastorpe quam clamat, & quam Walterus de Fridastorpe, & Helias filius eius ei deforc’, Et nisi fecerit Vicecomes Eborum faciat, ne amplius inde clamorem audiamas pro defectu recti.33 For thy better understanding, hereby it appeareth that Joh. de Beverlaco34 brought a Writ of Right against Walter of Fridastorpe, and Helias his sonne, of one Ploughland in Fridastorpe, directed to the Lord of the Mannour of whom the said plough landwasholden, which Writ was after by a Precept made by the Sherife called a Tolt, (because it doth tollere loquelam,35 from the Court Baron to the Countie Court) remooved into the Countie Court, where before Ranulph de Glanvilla then Sherife of Yorke, this concord was by consent of parties made in the County Court, by force of the Commission given to the Sherife in default of the Lord by the said Writ, (viz.) That the Sherife in his County Court should see that the demandant should without delay have his full right in the said plough land, upon which Writ in that court this Concord was made, and not onely entred into the Rols of the Countie Court, but by way of Instrument indented, mutually sealed by either partie; So as by this Concord the perclose of the writ, Ne amplius inde clamorem audiamus pro defectu recti,36 was satisfied: And to the end that this concord might be the more firmely kept, each partie bound him selfe to the other by an Affidavit. All this is necessarily collected out of this auncient & learned Instrument: for per breve Domini Regis37 is expounded to bee a Writ of Right by these words clamavit &c. ius suum;38 but directly after when it is said pro clameo & recto suo:39 Also it appeareth that this concord was made in comit’ Eborum,40 and clamaevit versus eos in eodem comit’ &c. per breve domini regis:41 And all this was done coram Ranulpho de Glanvilla tunc Vicec’:42 And the learned do know that a writ of Right cannot be retournable in the County court, but must of necessitie be remooved thither by Tolt. Good Reader, I dare confidently affirme unto thee, that never any Abbot, Monke, or Churchman that wrote any of our Annals could have understood this excellent and well indicted concord. But to returne againe to these grave and learned Reporters of the Lawes, in former times, who (as I take it) about the end of the raigne of King Henry the 7. ceased, betweene which and the cases reported in the raigne of Henry the 8. you may observe no small difference: So as about the end of the raigne of Henry the 7. it was thought by the Sages of the Law, that at that time the Reports of the Law were sufficient; Wherefore it may seeme both unnecessarie and unprofitable to have any more Reports of the Law: But the same causes that mooved the former, doe require also to have some more added unto them for two speciall ends and purposes. First, to explaine and expound those Statutes and Actes of Parliament which either have bin enacted since those Reports, or where not (no occasion falling out) in Reports expounded at all. Secondly, to reconcile doubts in former Reports rising either upon diversity of opinions or questions mooved and left undecided, for that it cannot be, but in so many Books written in so many severall ages, there must be (as the like in all Sciences and Arts both divine and humane falleth out) some diversitie of opinions, and many doubts left unresolved: For which only purposes I have published the former two, and this last part of my Reports, which I trust will be a meane (for so I intended them) to cause the studious to peruse and peruse againe with greater diligence, those former excellent and most fruitfull Reports: And in troth these of mine (if so I may call them, being the Judgements of others) are but in nature of Commentaries, either for the better apprehending of the true construction of certaine generall Acts of Parliament concerning the whole Realme, in certaine principall points never expounded before, or for the better understanding of the true sense and reason of the Judgements and resolutions formerly reported, or for resolution of such doubts as therein remain undecided. For which purposes in my former Reports I have reported and published for the explanation & exposition of the Statute of 23. H. 8. ca. 10. Porters case: Of the broad spreading Statute of 27. H. 8. cap. 10. of Uses, the cases of Chudleigh, Corbet, Shelley, Albany, and the Lord Cromwels case: of the Statute of 34. H. 8. cap. 20. of Recoveries, Wisemans case: Of the Statute of 13. Elizab. cap. 7. of Bankrupts, the case of Bankrupts: Of the Statute of 34. H. 8. ca. 21. of confirmation of LettersPatents, Dodingtons case: Of the statute of 31. H. 8. of dissolution of Monasteries: And of the Statute of 1. Edw. 6. of Chauntries, the Archbishop of Canterburies case: And of one Branch of the great & generall Statutes of 32. and 34. H. 8. of Wills, Binghams case. I have reported the Lord Buckhursts case, for the true understanding and expounding of the auncient and former Booke cases concerning Charters and Evidences, and to that end the residue of the cases in those two former parts are published. And seeing the end of these Lawes is to have Justice duely administred, and Justice distributed is Ius suum cuique tribuere,43 to give to every one his owne; Let all the professors of the Law, give to these Books that Justice which these Bookes have in them: that is, to give to every booke and case his owne true understanding: And not by wresting or racking, or inference of wit to draw them (no not for approving a troth) from their proper and naturall sense, for that were a point of great injustice: For troth and falshood are so opposite, as troth itselfe ought not to be prooved by any glose or application that the true sense will not beare. Out of all these Bookes and Reports of the Common Law, I have observed, that albeit sometime by actes of Parliament, and sometime by invention and wit of man, some points of the auncient Common Law have been altered or diverted from his due course; yet in revolution of time, the same (as a most skilfull and faithfull supporter of the common wealth) have bin with great applause for avoyding of many inconveniences restored againe: As for example, the wisedome of the Common Law was that all estates of inheritance should be Fee simple, so as one man might safely alien, demise, and contract, to and with another: But the Statute of Westminster the second cap. I. created an estate taile, and made a Perpetuitie by act of Parliament, restraining Tenant in taile from aliening or demising but onely for the life of Tenant in taile, which in processe of time brought in such troubles and inconneniences, that after two hundred yeares, necessitie found out a way by Law for a Tenant in taile to alien. Also by the auncient Common Lawes, freeholds should not passe from one to another but by matter of Record, or solemne Liverie of seisin; But against this were Uses invented, and grew common, and almost universall through the Realme, in destruction of the auncient Common Law in that point: But in time the manifold inconveniences hereof being by experience found, the Statute of 27. Henr. 8. cap. 10. was made for restoring of the auncient Common Law againe, as it expresly appeareth by the Preamble of that Statute: And hereof an infinite more of examples might bee added, but hereof this shall suffice: And thus much of the Bookes and Treatises, and of the Reporters and Reports of the Lawes of England. Now for the degrees of the Law: as there bee in the Universities of Cambridge and Oxford divers degrees, as generall Sophisters, Bachellors, Masters, Doctors, of whom bee chosen men for eminent and judiciall places, both in the Church and Ecclesiasticall Courts: So in the Profession of the Law, there are Mootmen, (which are those that argue Readers cases in houses of chauncerie, both in Termes and graund Vacations.) Of Mootemen after eight yeares Studie or thereabouts, are chosen Utterbaristers; of these are chosen Readers in Innes of Chauncerie: Of Utterbarristers, after they have beene of that degree twelve yeares at the least are chosen Benchers, or Auncients, of which one that is of the puisne sort, reades yearely in Summer vacation, and is called a single Reader; And one of the Auncients that have formerly read, reades in Lent vacation, and is called a double Reader, and commonly it is betweene his first and second Reading about nine or tenne yeares, And out of these the King makes choyse of his Attorney, and Sollicitor Generall, his Attorney of the Court of Wardes and Liveries, and Attorney of the Duchy: And of these Readers are Serjeants elected by the King, and are by the Kings Writ called ad statum & gradum Servientis ad Legem:44 and out of these the King electeth one, two, or three as pleaseth him to be his Serjeants, which are called the Kings Serjeants; Of Serjeants are by the King also constituted the honorable and reverend Judges, and Sages of the Law. For the young Student which most commonly commeth from one of the Universities, for his entrance or beginning were first instituted and erected eight houses of Chauncerie, to learne there the Elements of the Law: that is to say, Cliffordes Inne, Lyons Inne, Clements Inne, Barnards Inne, Staple Inne, Furnivals Inne, Davis Inne, and New Inne: And each of these houses consist of fortie or thereabouts. For the Readers, Utterbarristers, Mootemen, and inferiour Students, are foure famous and renowned Colledges, or Houses of Court, called the Inner Temple, to which the first three Houses of Chauncerie appertaine; Graies Inne, to which the next two belong; Lincolnes Inne, which enjoyeth the last two saving one; and the Middle Temple, which hath onely the last. Each of the Houses of Court consist of Readers above twentie: Of Utterbaristers above thrice so many: Of yong Gentlemen, about the number of eight or nine score, who there spend their time in Study of Law, and in commendable exercises fit for Gentlemen: The Jvdges of the Law and Serjeants being commonly above the number of twentie, are equally distinguished into two higher and more eminent Houses, called Serjeants Inne: All these are not farre distant one from another, and altogether doe make the most famous Universitie for profession of Law onely, or of any one humane Science, that is in the world, and advaunceth it selfe above all others, Quantum inter viburna Cupressus.45 In which Houses of Court and Chauncery, the Readings and other exercises of the Lawes therein continually used, are most excellent and behoovefull for attaining to the knowledge of these Lawes: And of these things this taste shall suffice, for they would require if they should be treated of, a treatise of it selfe. Of the antiquitie of these houses, and how they have beene changed from one place to another, I may say as one said of auncient Cities: Perpaucae antiquae & civitates Authores Suos norunt.46 Now, what Arts or Sciences are necessary for the knowledge & understanding of these Lawes, I say, that seeing these Lawes doe limit, bound and determine, of all other humane lawes, arts, and sciences: I cannot exclude the knowledge of any of them from the professor of these Lawes; the knowledge of any of them is necessary and profitable. But forasmuch as if a man should spend his whole life in the study of these Lawes, yet he might still adde somewhat to his understanding of them: Therefore the Judges of the law in matters of difficulty, doe use to conferre with the learned in that Art or Science, whose resolution is requisite to the true deciding of the case in question. Concerning the language or tongue wherein these Lawes are written, for all judiciall Records are entred and enrolled in the Latine tongue: As it appeareth by an Act of Parliament in Anno 36. cap. 15. and the words of Glanvile, Bracton, and Fleta, Novae & Narrationes, and the Booke of Entries, and divers of our statutes are set forth in the Latine tongue. Before the raigne of that famous King Edward the first, as well all Writs originall and judiciall, as all the bookes of the Law, as Glanvile, Bracton, & c. and all the Statutes yet extant were published in the Latine tongue; In the raigne of him and his sonne many Statutes areindited in the Latine: (as some also of the Statutes of Richard the second be.) And divers also bee enacted in French, for that they had divers territories and Seigniories that spake French within their dominion, and in respect thereof the better sort learned that language. But forasmuch as the former Reports of the Law, and the rest of the Authors of the Law, (the Doctor and Student who wrote in the English tongue excepted) are written in French; I have likewise published these in the same language: And the reason that the former Reports were in the French tongue, was for that they begun in the raigne of King Edward the third, who as the world knowes had lawfull right in the Kingdome of France, and had divers Provinces and territories thereof in prosession: It was not thought fit nor convenient, to publish either those, or any of the Statutes enacted in those dayes in the vulgar tongue, lest the unlearned by bare reading without right understanding might sucke out errors, and trusting to their owne conceit might endamage themselves, and sometimes fall into destruction. And it is verily thought that William the Conquerourfinding the excellencie and equitie of the Lawes of England, did transport some of them into Normandy, and taught the former Lawes written as they say in Greeke, Latine, British, and Saxon tongues (for the better use of Normans) in the Normane language, and the which are at this day (though in processe of time much altered) called the Customes of Normandie: So taught hee Englishmen the Norman tearmes of hunting, hawking, and in effect of all other playes and pastimes, which continue to this day: And yet no man maketh question but these recreations and disports were used with in this Realme before the Conquerours time. But see the Preface of William de Rouell of Allenson to his Commentary written in Latine upon the booke called, Le graund Custumier de Normandie,47 entituled in Latine, Descriptio Normanniae,48 where hee sheweth and proveth by other Authors, that most of the Customes of Normandie were derived out of the Lawes of England, in or before the time of the said King Edward the Confessor, from whom William Duke of Normandie did derive the title, by colour whereof he first entred into the crowne of England. If the language or stile doe not please thee, let the excellencie and importance of the matter delight and satisfie thee, and thereby thou shalt wholly addict thy selfe to the admirable sweetnesse of knowledge and understanding: In lectione non verba sed veritas est amanda, saepe autem reperitur simplicitas veridica, & falsitas composita, quae hominem suis erroribus allicit, & per linguae ornamentum laqueos dulcis aspergit: Et doctrina in multis est, quibus deest oratio.49 Certainely the faire outsides of enameled words and sentences, doe sometimes so bedazill the eye of the Readers minde with their glittering shew, as they cause them not to see or not to pierce into the inside of the matter; And he that busily hunteth after affected words, and followeth the strong sent of great swelling phrases, is many times (in winding of them in to shew a little verbal pride) at a dead losse of the matter it selfe, and so Projicit ampullas & sesquipedalia verba.50 To speake effectually, plainely, and shortly, it becometh the gravitie of this profession: And of these things this little taste shall suffice.

Your extraordinary allowance of my last Reports, being freshly accompanied with new desires, have overcome mee to publish these few excellent Judgements and Resolutions of the reverend Judges and sages of the Law, tending either to the true exposition of certaine generall Acts of Parliament, or to the true understanding and sense of our bookes, wherein there seemeth some diversitie of opinion: And albeit they bee few in number, yet many of them consist of divers severall points, and comprehend in them many other Judgements and Resolutions, which never before were reported. If by these labours the Common-wealth shall receive any good, and the Reader reape the benefit that for his reading and study he desireth, I shall have all the reward that for my writings and paines I require.

Vale.51

Heydon’s Case.

(1584) Easter Term, 26 Elizabeth I In the Court of Exchequer.

First Published in the Reports, volume 3, page 7a.*

Ed.: This is a construction of leases, life estates, and statutes. Otlery, a religious college, gave a tenancy in a manor also called “Otlery” to Ware and his son. The tenancy was established by copyhold, an ancient device for giving a parcel of a manor to a tenant, usually in return for agricultural services, which was something like a long-running lease with special privileges for each party. Ware and his son held their copyhold to have for their lives, subject to the will of the lord and the custom particular to that manor. The Wares’ copyhold was in a parcel also occupied by some tenants at will. The college then leased the parcel to Heydon for a period of eighty years in return for rents equal to the traditional rent for the components of the parcel. The following year, the college was dissolved and lost its lands and rents to Henry VIII, although the act of dissolution kept in force grants made within the previous year for a term of life. The Court of Exchequer found that the grant to the Wares was within the statute’s protection but that the lease to Heydon was void. The ruling was based on an important discussion of the relationship of a statute to the pre-existing Common Law. By considering the statute as curing a defect in the Common Law, the remedy of the statute was limited to curing that defect. Judges are supposed to construe statutes by seeking the true intent of the makers of the Act, which is presumed to be pro bono publico, or intent for the public good. [The 1658 and some other editions have the name of the college and manor as “Ottery.”]

In an information upon an intrusion in the Exchequer, against Heydon, for intruding into certain lands, &c. in the county of Devon: upon the general issue, the jurors gave a special verdict to this effect:

First, they found that parcel of the lands in the information were ancient copyholds of the manor of Otlery, whereof the warden and canons regular of the late college of Otlery were seised in the right of the said college; and that the warden and canons of the said college, 22 Hen. 7. at a court of the said manor, granted the same parcel by copy, to Ware the father and Ware the son, for their lives, at the will of the lord, according to the custom of the said manor; and that the rest of the land in the information was occupied by S. and G. at the will of the warden and canons of the said college for the time being, in the time of Henry the Eighth. And further that the said S. and G. so possessed, and the said Ware and Ware so seised as aforesaid, the said warden and canons by their deed indented, dated 12 January anno 30 Hen. 8. did lease the same to Heydon the defendant for eighty years, rendering certain rents severally for several parcels; and found that the said several rents in Heydon’s lease reserved, were the ancient and accustomed rents of the several parcels of the lands, and found, that after the said lease they did surrender their college, and all the possessions thereof to King Henry the eighth. And further found the statute of 31 Hen. 8. and the branch of it, scil. by which it is enacted, “That if any abbot, &c. or other religious and ecclesiastical house or |[7 b] place, within one year next before the first day of this present Parliament, hath made, or hereafter shall make any lease or grant for life, or for term of years, of any manors, messuages, lands, &c. and in the which any estate or interest for life, year or years, at the time of the making of such grant or lease, then had his being or continuance, or hereafter shall have his being or continuance, and not determined at the making of such lease, &c. Or if the usual and old rents and farms accustomed to be yielden and reserved by the space of twenty years next before the first day of this present Parliament, is not, or be not, or hereafter shall not be thereupon reserved or yielded, &c. that all and every such lease, &c. shall be utterly void.” And further found, that the particular estates aforesaid were determined, and before the intrusion Heydon’s lease began; and that Heydon entered, &c. And the great doubt which was often debated at the Bar and Bench on this verdict, was, If copyhold estate of Ware and Ware for their lives, at the will of the Lords, according to the custom of the said manor, should, in judgment of law be called an estate and interest for lives, within the said general words and meaning of the said Act. And after all the Barons openly argued in Court in the same term, scil. Pasch. 26 Eliz. And it was unanimously resolved by Sir Roger Manwood, ChiefBaron, and the other Barons of the Exchequer, that the said lease made to Heydon of the said parcels, whereof Ware and Ware were seised for life by copy of court-roll, was void; for it was agreed by them, that the said copyhold estate was an estate for life, within the words and meaning of the said Act. And it was resolved by them, that for the sure and true interpretation of all statutes in general (be they penal or beneficial) restrictive or enlarging of the Common Law, four things are to be discerned and considered.

1. What was the Common Law before the the Act.

2. What was the mischief and defect for which the Common Law did not provide.

3. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth.

And 4. The true reason and remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo,1 and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.2 And it was said, that in this case the Common Law was, that religious and ecclesiastical |[8 a] persons might have made leases for as many years as they pleased, the mischief was that when they perceived their houses would be dissolved, they made long and unreasonable leases: Now the stat of 31 Hen. 8. doth provide the remedy, and principally for such religious and ecclesiastical houses which should be dissolved after the Act (as the said college in our case was) that all leases of any land, whereof any estate or interest for life or years was then in being, should be void; and their reason was, that it was not necessary for them to make a new lease so long as a former had continuance; and therefore the intent of the Act was to avoid doubling of estates, and to have but one single estate in being at a time: For doubling of estates implies in itself deceit, and private respect, to prevent the intention of the Parliament. And if the copyhold estate for two lives, and the lease for eighty years shall stand together, here will be doubling of estates simul & semel,3 which will be against the true meaning of Parliament.

And in this case it was debated at large, in what cases the general words of Acts of Parliament shall extend to copyhold or customary estates, and in what not; and therefore this rule was taken and agreed by the whole Court, That when an Act of Parliament doth alter the service, tenure, interest of the land, or other thing, in prejudice of the lord, or of the custom of the manor, or in prejudice of the tenant, there the general words of such Act of Parliament shall not extend to copyholds: But when an Act of Parliament is generally made for the good of the weal public, and no prejudice can accrue by reason of alteration of any interest, service, tenure, or custom of the manor, there many times copyhold and customary estates are within the general purview of such Acts. And upon these grounds the Chief Baron put many cases, where he held, that the Statute of West. 2. De Donis Conditionalibus did not extend to copyholds; for if the statute alters the estate of the land, it will be also an alteration of the tenure, which would be prejudicial to the lord: for of necessity the donee in tail of land ought to hold of his donor, and do him such services (without special reservation) as his donor doth to his lord.

2. Littleton saith, lib. 1. cap. 9. That although some tenants by copy of court-roll have an estate of inheritance, yet they have it but at the will of the lord, according to the course of the Common Law. For it is said, that if the lord put them out, they have no other remedy but to sue to their lord by petition; and so the intent of the Statute de Donis Conditionalibus was not to extend (in prejudice of lords) to such base estates, which as the law was then taken, was but at |[8 b] the will of the lord. And the statute saith, Quod voluntas donatoris in carta doni sui manifeste express. de caetero observetur:4 so that which shall be entailed, ought to be such an hereditament, which is given, or at least might be given by deed or charter in tail.

3. For as much as great part of the land within the realm, is in grant by copy, it will be a thing inconvenient, and occasion great suit and contention, that copyholds should be entailed, and yet neither fine nor common recovery bar them; so as he who hath such estate cannot (without the assent of the lord by committing a forfeiture, and taking a new estate) of himself dispose of it, either for payment of his debts, or advancement of his wife, or his younger children; wherefore he conceived that the Statute de Donis Conditionalibus did not extend to copyholds, quod fuit concessum per totam Curiam.5 But it was said that the statute, without special custom, doth not extend to copyholds; but if the custom of the manor doth warrant such estates, and a remainder hath been limited over and enjoyed, or plaints in the nature of a formedon6 in the descender brought in the court of the manor, and land so entailed by copy recovered thereby, then the custom co-operating with the statute makes it an estate-tail; so that neither the statute without the custom, nor the custom without the statute, can create an estate-tail.

And to this purpose is Littleton, lib. 1. c. 8. for he saith, That if a man seised of a manor, within which manor there hath been a custom which hath been used time out of memory, that certain tenants within the same manor have used to have lands and tenements, to hold to them and their heirs in fee-simple or fee-tail, or for term of life, &c. at the will of the lord, according to the custom of the same manor; and a little after, That Formedon indescender lies of such tenements, which writ, as it was said, was not at the Common Law.

To which it was answered by the chief Baron, that if the statute (without custom) shall not extend to copyholds, without question the custom of the manor cannot make it extend to them: for before the statute, all estates of inheritance, as Littleton saith, lib. i. cap. 2., were fee-simple, and after the statute no custom can begin, because the statute being made in 13 Edw. 1. is made within time of memory; ergo the estate tail cannot be created by custom; and therefore, Littleton is to be intended (inasmuch as he grounds his opinion upon the custom, that copyholds may be granted in fee-simple, or fee-tail) of a fee-simple conditional at the Common Law: for Littleton well knew, that no custom |[9 a] could commence after the statute of West. 2., as appears in his own book, lib. 2. c. 10. and 34 H. 6. 36. And where he saith, that formedon in descender lies, he also saith, that it lies at the Common Law. And it appears in our books, that, in special cases, a Formedon in the descender lay at the Common Law, before the statute of Westm. 2., which see 4 Edw. 2. Formedon 50. 10 Edw. 2. Formedon 55. 21 Edw. 3. 47. Plowd. Com. 246b. &c.

And where it was further objected, That the statute of West. 2. cannot without custom make an estate tail of copyholds, because without custom, such estate cannot be granted by copy; for it was said, That estates had been always granted to one and his heirs by copy, that a grant to one and the heirs of his body, is another estate not warranted by the custom: So that in such manors, where such estates of inheritance have been allowed by custom, the statute doth extend to them, and makes them, which before were fee conditional, now by the statute estates in tail, and that the statute cannot, as hath been agreed before, alter the custom, or create a new estate not warranted by the custom.

To that it was answered by the chief Baron, That where the custom of the manor is to grant lands by copy in feodo simplici7 (as the usual pleading is) without question, by the same custom lands may be granted to one and the heirs of his body, or upon any other limitation or condition; for these are estates in fee-simple, et eo potius,8 that they are not so large and ample as the general and absolute fee-simple is, and therefore the generality of the custom doth include them, but not e converso;9ad quod non fuit responsum.10 But it was agreed by the whole Court, That another Act made atthe sameParliament, cap. 18. which gave the elegit11 doth not extend to copyholds, for that would be prejudicial to the lord, and against the custom of the manor, that a stranger should have interest in the land held of him by copy, where by the custom it cannot be transferred to any without a surrender made to him, and by the lord allowed and admitted. But it was agreed by them, that other statutes made at the same Parliament, which are beneficial for the copyholder, and not prejudicial to the lord, may be, by a favourable interpretation, extended to copyholds, as cap. 3. which gives the wife a cui in vita,12 and receipt, and cap. 4. which gives the particular tenant a quod ei deforceat;13 and therewith agrees 10 Edw. 4. 2b.

And in this case it was also resolved, That although it was not found that the said rents were the usual rents, accustomed to be reserved within 20 years before the Parliament; yet inasmuch as they have found, that the accustomable rent was reserved, and a custom goes at all times before, for this cause it shall be intended, that it was the accustomable rent within the 20 years, and so it shall be intended, if the contrary benot shewed of the otherside. Andjudgment was entered for the Queen.

Fermor’s Case.

(Fermor v. Smith) (1602) Hilary Term, 44 Elizabeth I

In the Court of Chancery, and before all the justices of England. First Published in the Reports, volume 3, page 77a.

Ed.: Richard Fermor leased a messuage, or house and its related buildings and land, to Thomas Smith. The lease was based on a demise, or grant, for a period of 21 years, in return for rents of £3 yearly. Smith held other lands from Fermor as a tenant at will, which means the leases in these lands could be ended any time by Fermor or Smith, for 20s yearly, and he held a copyhold for more lands from Smith for 40s. Smith also held some lands not subject to Fermor. Smith granted all of his lands in the area to Chappell for life, and Smith levied a fine and proclamations, or instituted a proceeding to cut short other interests rather like a modern proceeding to declare an interest by adverse possession, which would cut off Fermor’s interests in Fermor’s lands possessed by Smith. Smith continued paying all of his rents to Fermor. The five years for the fine to be completed ran. Chappell died, which meant the reversion Smith kept when he gave Chappell the life estate gave possession back to Smith. The 21-year lease expired, and Smith claimed all of the land and barred Fermor from possession. Fermor sued in Chancery, although Egerton the chancellor referred it to the whole bench. The court held that the Parliamentary act that established the use of fines had not been intended for use in such a fraudulent manner. Benefits acquired by fraud cannot bind the people defrauded, particularly when there is a relationship of trust and confidence between the persons defrauding and defrauded. To allow any other result would allow “general mischief to insue.” Fermor won.

This case presents good discussions of statutory interpretation based on legislative intent, of fraud and fraud in a position of trust (which Coke seems to have over-emphasized compared to other reporters of the case), and of public policy arguments based on the effect of the ruling on subsequent litigants.

In a case depending in Chancery, between Richard Fermor, Esq. plaintiff, and Thomas Smith defendant, on the hearing the cause before Sir Thomas Egerton, Knight, Lord Keeper of the Great Seal, the case was such; Richard Fermor, the plaintiff, being seised of the manor of Somerton in fee, by indenture 6 Junii 20 Eliz. demised a messuage, parcel of the same manor, to Thomas Smith, the defendant, for twenty-one years, rendering the yearly rent of three pounds during the term, by force of which the defendant entered and was thereof possessed; He was also possessed of divers other parcels of the said manor at the will of the plaintiff, rendering twenty shillings per annum, and held divers other parcels of the said manor by copy of court-roll according to the custom of the said manor, rendering forty shillings rent per annum, all which lay in Somerton: And the said Thomas Smith was seised in his demesne as of fee of divers lands, in the same town, which were his proper inheritance. And afterwards by his deed 15th of October 25 Eliz. demised the said house and all the said land which he held for years, at will, and by copy, to one Chappel for his life, Pasch. 35 Eliz. Smith levied a fine with proclamations of as many messuages and lands, as comprehended as well all the lands which he held for years, at Will, and by copy, as his own inheritance, by covin1 and practice, to bar the plaintiff of his inheritance; the proclamations and five years passed, Smith at all times, before and after the fine, continued in possession, and paid the said several rents to the plaintiff. Chappel died, the 21 years expired, |[77 b] and now Smith claimed the inheritance of the land which he held by lease, at will, and by copy, and would have barred the plaintiff by force of the said fine with the proclamations, and five years past. And the Lord Keeper of the Great Seal thinking and considering of the great mischiefs which might ensue by such practices, and on the other side considering that fines with proclamations are the general assurances of the realm, referred this case (being a thing of great importance and consequence) to the consideration of the two Chief Justices Popham and Anderson; and after conference between them, they thought it necessary that all the justices of England and Barons of the Exchequer should be assembled for the resolution of this great case. And accordingly in this same term, all the Judges of England and the Barons of the Exchequer met at Serjeant’s Inn in Fleet-street, at two several days, where the case was debated among them. And at length it was resolved, by the two Chief Justices, Popham and Anderson, and by Gawdy and Walmesly, and all the other justices of England and Barons of the Exchequer, (except two) that the plaintiff was not barred by the said fine with proclamations, and that for four causes:

1. The makers of the Act of 4 Hen. 7. cap. 24. did never intend that such fine levied by fraud and practice of lessee for years, tenant at will, or tenant by copy of Court roll, who pretend no title to the inheritance, but intend the disinherison of their lessors or Lords, should bar them of their inheritance, and that appears by the preamble of the Act of 4 Hen. 7. where it is said, “That fines ought to be of greatest strength to avoid strifes and debates, & c.” But when lessee for years, or at will, or tenant by copy of Court roll make a feoffment by assent and covin that fine shall be levied, the same is not to avoid strife and debate; but by assent and covin to begin strife and debate where none was; And therefore the Act doth not extend to establish any estate made by such fraud and practice.

2. It was never the intent of the makers of the Act, that those who could not levy a fine, shall by making of an estate by wrong and fraud be enabled by force of the said Act to bar those who had right by levying of a fine: For if they themselves without such fraudulent estate cannot levy a fine to bar them which have the freehold and inheritance, certainly the makers of the Act did not intend that by making of an estate by fraud and practice they should have power to bar them; and such fraudulent estate is as no estate in the judgement of Law.

3. As it is said in Dalamer’s Case in Plow. Comm. 352. if any doubt be conceived upon the words or meaning of |[78 a] an Act of Parliament it is good to construe the same according to the reason of the Common Law; but the Common Law doth so abhorre fraud and covin, that all Acts as well Judicial as others, and which of themselves are just and lawful, yet being mixt with fraud and deceit, are in judgement of Law wrongful and unlawful: Quod alias bonum & justum est, si per vim vel fraudem petatur, malum & injustumefficitur:2 And therefore if a woman hath title to Dower which is one of the things favoured in Law, and by covin between her & another causeth a stranger to disseise the tenant of the land, to the intent that she may bring a Writ of Dower against him, which is done accordingly, and the woman recover against him upon a just and good title, yet all the same is void and of no force to binde the Terre-tenant; a fortiori3 in the principal Case when the lessee for years maketh a feoffment by covin, which amounteth to a wrong and disseisin, a fine levied by him who is particeps criminis,4 and who had not, nor pretended any right to the land shall not be a barre to the lessor. And that recoveries in Dower, or any other real Action shall be made a good title against the Tenant who cometh to the land by wrong and covin are void and of no force appeareth by 41 Ass. 28. 44 Edw. 3. 25 Ass. 1. 22 Ass. 92. 11 Edw. 4. 15 Edw. 4. 4. 7 Hen. 7. 11. 18 Hen. 8. 5. 12 Eliz. Dyer 295. For although that his right be lawful, and that he hath pursued his Recovery by judgement in the King’s Court, yet his covin maketh all that unlawful and wrongful, andyet Recoveries and chiefly upon good title are much favoured in Law: Also the right of inheritance of feme coverts,5 and infants, are much favoured in Law; and yet if a feme covert or an infant be of covin and consent, that the discontinuee shall be disseised, and that the disseisor shall enfeoff them, and all this is done accordingly, they are not remitted, as appears by Littleton, chap. Remitter 151. & 19 Hen. 8. 12b. And there it is held by six justices, that in such case, if the disseisor enters by covin to the intent to enfeoff the infant, although the infant be not of covin, &c. yet he shall not be remitted, because he who is in by him who makes the covin shall be in the same plight as he who did the covinous act. And it is agreed in 19 Hen. 8. 12. b. that if a man makes a disseisin to the intent to make a feoffment with warranty, although he makes the feoffment twenty months after, yet it is a warranty which commences by disseisin.

So if one makes a gift in tail to another, and the uncle of the donor disseises the donee, and makes a feoffment with warranty, the uncle dies, and the warranty descends on the donor, and afterwards the donee dies without issue, the donor brings Formedon6 in the reverter, and the tenant pleads the feoffment with warranty, the demandant shall |[78 b] avoid it, because it began by disseisin, and yet the disseisin was not immediately done to the donor, but to the donee; but by it his reversion was devested; and yet warranties are much favoured in law. And it appears in 8 Eliz. 249. Dyer, that a vacat7 was made of a recovery in the Common Pleas had by covin. The law hath ordained, that he, who will be assured of his goods, shall buy them in open Market, and that sale will bind all strangers, as well as the seller, and yet it is agreed in 33 Hen. 6. 5a, 5b that a sale in Market overt shall not bind him who hath a right to the goods, if the sale be by fraud, or the vendee hath notice that the property of the goods was another’s. So the law hath ordained the Court of Common Pleas as an open Market for assurances of land by fine, so that he who will be assured of his land not only against the seller, but all strangers, it is good for him to pass it in this market overt by fine; for, as it is said, finis finem litibus imponit:8 and yet covin and deceit in the case at Bar will void it. In 4 Edw. 2. Cui in Vita 22. it is held, That a resignation made by an abbot by covin should not abate the writ. 34 Edw. 1. Warranty 88. & 19 Edw. 2. Assets 3. & 31 Edw. 1. Voucher 301., a covinous conveyance that assets should not descend, is nothing worth. And it appears in 17 Edw. 3. 59. and 21 Edw. 3. 3. 46. that an estate made to the King, and by his letters patent granted over, and all this by covin between him who granted to the King and the patentee, to make an evasion out of the Statute of Mortmain, shall not bind, but shall be repealed. And 17 Eliz. Dy. 339. a presentation obtained by collusion is void. And 17 Eliz. Dy. 339. letters of administration obtained by collusion are void, and shall not repeal a former administration: see 13 Eliz. Dyer 295. many cases there put concerning covin.

And thereupon it was concluded, That if a recovery in Dower, or other real action, if a remitter to a feme covert or an infant, if a warranty, if a sale in market overt, if the King’s Letters Patent, if a presentation, administration, &c. scil. acts temporal and Ecclesiastical, shall be avoided by covin; by the same reason a fine in the principal case levied by fraud and covin, as is aforesaid, shall not bind; for fraus & dolus nemini patrocinari debent.9

Note, Reader, in 33 & 34 Eliz. in the King’s Bench between Robert Laune plaintiff and William Toker defendant in Ejectione firmae10 of lands in Ilfordcoom in the county of Devon, it was adjudged that where tenant for life levied a fine with proclamation and five years pass in his life, that the lessor should have five years to make his claim after the death of the lessee. And although this statute of 4 Hen. 7. hath a saving for the lessor in such case, yet the saving is of such right “as first shall grow, remain, &c.” and the right first accrued to the |[79 a] lessor after the fine and the forfeiture; but notwithstanding that, in as much as by the covin of the lessee, he in reversion or remainder might be barred of his reversion or remainder (for they do not expect to enter till after the death of the lessee,) and especially when the lessee hath lands of his own inheritance in the same town (as in the case at Bar he had), there the lessor shall have 5 years after the death of the lessee.

So it was agreed in the same case, if tenant for life makes a feoffment in fee to one who hath lands in the same town, and the feoffee levies a fine with proclamations; it shall not bind the lessor, but he shall have 5 years after the death of the lessee, for the lessor cannot know of what land the fine is levied, for he is not party to the indenture or agreement between the conusor and conusee;11 So in the same case, the Judges made a construction against the letter of the statute in salvation of the estate and inheritance of him in the reversion. And so it hath been adjudged before in Some’s Case in the Common Pleas, in Sir James Dyer’s time, as Plowden told me. Also it was said, that if lessee for years makes a feoffment in fee by practice and covin, that the feoffee should levy a fine with proclamations to another (the feoffee having other lands in the same Town) and all this is done accordingly; and yet the lessee doth continually pay the rent to the lessor, it shall not bind the lessor, for the reasons aforesaid.

Lastly, the Judges in this Resolution did greatly respect the general mischief which would ensue, if such fines levied by practice and covin of those who had the particular interests, should bar those who had the inheritance, and especially in the case at Bar, when after the fine levied, the conusor continually payed the rent to the lessor, which made the fraud and practice apparent, and therefore the lessor was secure, and had no cause of any fear or doubt of such fraud. But it was resolved, that if A. purchases land of B. by feoffment, or bargain and sale, and enrols it, and afterwards perceiving that B. had but a defeasible title, and that C. had right to it, B. levies a fine with proclamations to a stranger, or takes a fine from another with proclamations, to the intent to bar the right of C., this fine so levied by consent should bind; for nothing was done in this case which was not lawful, and the intent of the makers of the Act of 4 Hen. 7. was to avoid strifes and debates, and by the expresspurview should bind all strangers who do not pursue their right by action, or entry within 5 years. So, if one pretending title to land enters, and disseises another, and afterwards with intent to bind the disseisee, levies a fine with proclamations, this fine shall bind the disseisee by the express purview of the Act, if he neither enters nor |[79 b] pursues his action within 5 years; and this cannot be called levying by covin, because the levying of the fine is lawful, and the disseisee may re-enter, or bring his action within the 5 years.

The fourth reason was, because the lessee had contrived his fraud and deceit in so secret a manner, that he had deprived the lessor of the remedy which the statute gave him, that is to say, to make his entry, or bring his action within the 5 years: For how could he make his entry, or bring his action, when he knew not of the feoffment which did the wrong? And as to the fine, inasmuch as the lessee had lands in fee-simple in the same town, every one will presume that the fine would be levied of that whereof it might be lawfully levied. And although it contained more acres than his own land, that is usual almost in all fines; and peradventure the lessor did not know the just quantity of the lessee’s proper land, for that doth not appertain to him; and therefore it would be unreasonable to give him benefit, in this case, of the non-claim of the lessor, when the wrong and covin of the lessee is the cause of his non-claim. And a man shall not take advantage of his own wrong or covin. The possession of the lessee is not any mean for the lessor to take any notice of this wrong, for he comes to the possession of the land by grant or demise lawfully; and after the feoffment he continues in the possession as a lessee, for he pays his rent as a lessee ought; immo12 the possession of the lessee, and the payment of the rent, was the cause that the lessor neither knew nor suspected the fraud.

Also it was said, that the fraud and covin in this case made it more odious, because between the lessor and lessee, and the lord and his copyholder, there is a trust and confidence, and therefore a lessee for years and a copyholder shall do fealty, which is a great obligation of trust and confidence; and fraud and deceit by him who is trusted, is most odious in law. And if the makers of this Act had been asked, if their intent was, that such a fine so levied by such practice and covin should bind the lessors, they would have answered, God forbid that they should intend to patronize any such iniquity practised and compassed by those in whom there was trust and confidence reposed. But when a disseisor (although he gains the possession by wrong) levies a fine with proclamation, yet it shall bind as is aforesaid, for a disseisor venit tanquam in arena,13 and it is not possible but that the disseisee to whom the wrong is done, and who hath lost his possession, should be conusant of it; and therefore it will be his own folly, if he makes not his claim; and it is not accompanied with fraud and practice by one who came to the possession lawfully, by grant or demise, and who had a trust reposed in him by his lessor or grantor, which fraud and practice is so secretly contrived, that the |[80 a] lessor by common presumption could not have notice to make his claim, because his lessee continued in possession, and paid his rent, as a lessee ought. And as to that which was objected, That it would be mischievous to avoid fines on such bare averments; It was answered, That it would be a greater mischief, and principally in these days (in which the Poet saith,

• e——— Fugere pudor, rectumque, fidesque,
• In quorum subiere locum fraudesque, dolique,
• Insidiaeque, & vis, & amor sceleratus habendi.) 14

if fines levied by such covin and practice should bind, And such Objection may be made, if a fine be levied to secret uses to deceive a purchaser, an averment of fraud may be taken against it, by the stat. of 27 Eliz. cap. 4. So if a fine be levied on an usurious contract, it may be avoided by averment, by the statute of 13 Eliz. cap. 8. And Sir Thomas Egerton Lord Keeper of the Great Seal, commended this resolution of the justices, and agreed in opinion with them.

[1. ][Ed.: The just man shall be in everlasting remembrance, and he shall not be afraid of evil tidings. (Psalms 112:6–7, or 111:7 in the Vulgate.)]

[2. ][Ed.: Justice is the prince of all virtues, a safe and faithful companion of human life; indeed it rules empires, kingdoms, peoples, and cities; and, if it is taken away, human society cannot stand firm.]

[3. ][Ed.: Justice contains all the virtues in itself.]

[1. ][Ed.: Law arose by the divine will,]

[2. ][Ed.: Books of elephantine proportions.]

[3. ][Ed.: Item, by the Commons, that as to records & any actions in the King’s Court, reasons must remain there as perpetual evidence and aid for all parties to the same and to all who must know the length of their attaints. And now from recent denials in our lord’s courts of search or evidence against the King or to others’ disadvantage, that ordinary pleas under statute, that search and precedents be made for all people, of any record that touches in appropriate cases between the King and other people. The King wishes it:]

[4. ][Ed.: in the sixth book of assizes, plea 24 (i.e., 6 Edw. III, Lib. Ass., pl. 24).]

[5. ][Ed.: The King to the Sheriff, greeting: A. has complained to us that B. has wrongfully and without judgment disseised him of his free tenement in E. etc. Therefore we command you that, if the aforesaid A. shall make you secure for prosecuting his claim, then cause that tenement to be reseised of the chattels which were taken in it, and cause the selfsame tenement with the chattels to be in peace until our Justices shall come to the first Assize in those parts, and in the mean time cause twelve free and lawful men of the neighbourhood to view the tenement; and cause their names to be written down etc.]

[6. ][Ed.: And in the mean time cause twelve free and lawful men, etc.]

[7. ][Ed.: ought not to be put into assizes, juries, or recognitions;]

[8. ][Ed.: The Church of St. Mary of Worcester has a hundred called Oswaldshaw, in which lie three hundred hides, from which the Bishop of that Church by an ancient constitution has all the Rents of Socmen and all the customs therein belonging for the lord’s maintenance, and the King’s service (i.e. knight-service) and his own, in such a way that the Sheriff may have (i.e. hear) any plaint there in any plea or cause whatsoever,]

[9. ][Ed.: Rents of Socmen (Socmen are free tenants who pay socage, or ploughing the lord’s land for a set number of days each year. A “soc” was a plough.)]

[10. ][Ed.: King’s Service (also “Knight’s Service,” or tenure in landheld by obligation formilitary service.)]

[11. ][Ed.: A writ of right for the king against anyone who claimed or usurped any office, franchise, or liberty, used here metaphorically.]

[12. ][Ed.: In fact it is they who decide almost all controversies, public and private, etc., and if any crime has been committed, or murder done, or there is a dispute about inheritance, or boundaries, they decide it, appointing the rewards and punishments.]

[13. ][Ed.: use the Greek alphabet,]

[14. ][Ed.: The teaching of the Druids . . . having started inBritain, and having been from then cetranslated into Gaul, anyone nowadays who wishes to know that discipline more fully must go to Britain in order to learn it.]

[15. ][Ed.: write their contracts or bonds in the Greek language,]

[16. ][Ed.: to take from the British islands to Massalia.]

[17. ][Ed.: The Gaulish lawyers taught the Britons eloquence:]

[18. ][Ed.: on Samothrace, (note: not Samos).]

[19. ][Ed.: the Painted Britons,]

[20. ][Ed.: the idols (Coke seems here to mistake the sense of idol from “icon” to be “picture.”)]

[21. ][Ed.: (a suffix, which Coke presumes to be of a Hellenic form for “land of.”)]

[22. ][Ed.: A certain abridgment which is composed from various laws of the Trojans, Greeks, Britons, Saxons, and Danes:]

[23. ][Ed.: Institutes of the Laws.]

[24. ][Ed.: From the immense mass of laws which were left by the Britons, Romans, Angles, and Danes, he selected the best and digested them into one body which he called the Common Law:]

[25. ][Ed.: The laws of the Britons, the municipal statutes, the judge-made laws, the law of Mercia, the breviary of laws, the institute of the laws, and the Common Law . . .]

[26. ][Ed.: most efficacious for protecting the peace of the realm,]

[27. ][Ed.: Either this machine has been made within our walls, or there is some mistake: do not trust the horse of Teucrus (i.e. the Trojan horse).]

[28. ][Ed.: And if these [laws] had not been of the best, some of those kings would have changed them by reason of justice, or merely out of caprice, or totally abrogated them: and especially the Romans, who judged almost the whole of the rest of the world by their laws.]

[29. ][Ed.: laws for the common weal,]

[30. ][Ed.: royal laws,]

[31. ][Ed.: Workmen should stick to their trade;]

[32. ][Ed.: Before the arrival of the Normans, charters were authenticated with gold crosses and other devices; but the Normans began to make charters with wax impressions from the special seals whicheveryone had, under the names of three or four witnesses.]

[33. ][Ed.: . . . word for word: This is the final concord made in the county of York on the Monday next after the feast of St. Hilary in the thirty-third year of the reign of King Henry the second, between Walter of Fridaythorpe and Elias his son, and John of Beverley, namely concerning one carucate of land in Fridaythorpe which the aforesaid John has claimed against him in the same county court as his right and inheritance, by the lord king’s writ, that is to say, that the aforesaid Walter and Elias his son have given and rendered to the aforesaid John his claim and the right which he had in that land, half a carucate of land in the same vill, and one toft, that is to say, that half carucate of land which lies between the land of Geoffrey Waulin and the aforesaid carucate of land which he claimed, and that toft which lies between the land of Adam, son of Norman de Sexenall, and the land of Henry, son of Thomas, fully with all their appurtenances within the vill and without, without any withholding, [to hold] this half carucate of land and toft fully with all their appurtenances unto the aforesaid John and his heirs, of the aforesaid Elias and his heirs, rendering thereof annually to the aforesaid Elias and his heirs twelve pence at Whitsun for all services which belong to that land; and the aforesaid Walter and Elias and their heirs shall warrant unto the aforesaid John and his heirs the aforesaid half carucate of land and the toft, with all their appurtenances, against all men; and this concord they have sworn on both sides to keep firmly and without deceit, as the present chirograph witnesses; and the said Walter has often attorned the aforesaid John in the same county to do the aforesaid service to the aforesaid Elias his son, and his heirs. These being witnesses, Remigius Dapifer, Ranulph de Glanvill, then sheriff of Yorkshire, Ranulph son of Walter, Roger de Badnut, Warin de Rollesby, Alan de Sinderby, Ralph son of Ralph, William de Aton, Nicholas de Warham, Robert de Mara, Alan son of Elias, Robert de Melsa (Meaux), Thomas son of Jodlan, Walram son of William, Walter de Bomadnum, Alan Malebacke, Adam de Killum, Robert de Malteby, Gilbert de Torini, William Agullum, Gilbert son of Richard, William de Backestorpe, Elias Latimer. [By which writ the king commanded the lord:] ‘that without delay he shall do full right to John of Beverley in respect of one carucate of land with the appurtenances in Fridaythorpe, which he claims, and which Walter of Fridaythorpe and Elias his son deforce from him, so that we may hear no more complaint hereof for want of right’. (A “carucate” was the area of ploughland that could be turned in one day with one plough; also called a “hide,” it varied between 60 and 120 acres.)]

[34. ][Ed.: John of Beverley]

[35. ][Ed.: raise up the claim,]

[36. ][Ed.: So that we may hear no more complaint hereof for want of right,]

[37. ][Ed.: by the lord king’s writ]

[38. ][Ed.: claimed, etc. his right;]

[39. ][Ed.: for his claim and right:]

[40. ][Ed.: in the county of York,]

[41. ][Ed.: he claimed against them in the same county, etc. by the lord king’s writ etc.:]

[42. ][Ed.: before Ranulph de Glanvill, then Sheriff:]

[43. ][Ed.: to give to everyone his right,]

[44. ][Ed.: to the estate and degree of a Serjeant at Law.]

[45. ][Ed.: as great as a cypress among the brushwood. (from Virgil, Eclogues, i. 25)]

[46. ][Ed.: our authors have investigated very few ancient cities.]

[47. ][Ed.: The Grand Coutumier (i.e. great book of customs) of Normandy.]

[48. ][Ed.: Description of Normandy,]

[49. ][Ed.: “In reading, the truth is to be loved rather than the words; for simplicity is often found to be truthfulness and falseness combined, which lures men into error, while elaborate language scatterssnares; and in many matters there is learning which cannot be expressed in speech.” (Isidore, de summo bono, lib. 3, Valer. lib. 3.)]

[50. ][Ed.: He throws out bombast and inordinately long words.]

[51. ][Ed.: Farewell.]

[* ][Ed.: See the initial pleadings at 20 Eliz. Rot. 140.]

[1. ][Ed.: For private benefit,]

[2. ][Ed.: For the public good. (for the welfare of the whole state and people)]

[3. ][Ed.: Together and at one time,]

[4. ][Ed.: That the will of the donor, manifestly expressed in the charter of his gift, shall be fromhenceforth observed:]

[5. ][Ed.: which was granted by the whole court.]

[6. ][Ed.: Writ available for one who had a right to lands or tenements from a gift in tail.]

[7. ][Ed.: in fee simple.]

[8. ][Ed.: the rather so,]

[9. ][Ed.: on the contrary.]

[10. ][Ed.: which was not answered.]

[11. ][Ed.: Writ of execution either on a judgment for a debt or damages or on the forfeiture of a recognizance in the king’s court.]

[12. ][Ed.: Writ of entry for a widow against a person to whom her husband had in his lifetime alienated his land subject to her inchoate claims.]

[13. ][Ed.: Writ given to the owners of a particular estate (as for life, in dower, by the courtesy, or in feetail) who were barred of the right of possession by a recovery against them through their default or non-appearance in a possessory action.]

[1. ][Ed.: Covin ordinarily refers to a secret agreement or conspiracy; here it means by stealthy, or deceitful means.]

[2. ][Ed.: What is otherwise good and just, if it is sought by force and fraud, becomes bad and unjust:]

[3. ][Ed.: with stronger reason.]

[4. ][Ed.: a participant in a crime, (an accomplice).]

[5. ][Ed.: married women.]

[6. ][Ed.: Writ to take possession by virtue of a grant in tail.]

[7. ][Ed.: cancellation.]

[8. ][Ed.: a fine puts an end to litigation:]

[9. ][Ed.: fraud and deceit should defend or excuse no man.]

[10. ][Ed.: Writ to recover in trespass lands from a prior present-interest holder whose interest has expired.]

[11. ][Ed.: The conusor, or cognisor, is the person who passes lands through an acknowledgement by fine to the conusee, who receives them.]

[12. ][Ed.: more specifically.]

[13. ][Ed.: comes, as it were, into the arena (i.e. into the conflict).]

[14. ][Ed.: Modesty, right and faith were fled away, and in their place came frauds, deceits and snares, and violence, and wicked love of possessions. (quoting Ovid, Metamorphoses, 1. 129.)]