Front Page Titles (by Subject) (Preface) To the Reader. - Selected Writings of Sir Edward Coke, vol. I
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(Preface) To the Reader. - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. I 
The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 1.
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(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:
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.
[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.]