Front Page Titles (by Subject) (Preface) Deo, Patriae, Tibi. 3 - Selected Writings of Sir Edward Coke, vol. I
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(Preface) Deo, Patriae, Tibi. 3 - 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) Deo, Patriae, Tibi.3
That which I have written as you know (learned Reader) in some of my former prefaces of the Antiquitie & excellencie of our laws of England, hath produced these two questions: First whether Historiographers do concurre with that which there so constantly hath beene affirmed: Secondly, seeing so great and so often rehersall is made of the common Laws of England, what the body or text of the common lawe is, and consequently where a man may finde it. To both which in the end I yeelded to make answere. For the first: albeit the books and records (which are & vetustatis & veritatis vestigia)4 cited by me in the prefaces to the third and sixt parts of my Commentaries, are of that authority that they need not the aide of any Historian: yet will I with a light touch set downe out of the consent of Storie some proofes of the Antiquitie, and from the censure of those persons who in respect of their profession (for they were Monkes and Clergie men) may rather fall into a Jealousie of referuednes then flatterie, somewhat of the equitie and excellencie of our Lawes; And that it doth appeare most plaine in successiue authoritie in storie what I have positiuely affirmed out of record, That the grounds of our common laws at this day were beyond the memorie on register of any beginning, & the same which the Norman conqueror then found within this realm of England.5 The laws that Wil. Conqueror sware to observe, were bonae & approbatae antiquae regni leges,6 that is, the lawes of this kingdome were in the beginning of the Conquerours raigne good, approved, and auncient. And, that the people might the better observe their duetie and the Conquerour his oath,7 he caused twelve of the most discreete and wise men in everie shire throughout all England, to be sworne before himself, that, without swarving, either ad dextram or sinistram,8 That is, neither to flatter prerogative or extend priviledge, they should declare the integritie of their lawes without concealing, adding, or in any sort varying from the truth. And Aldred the Archbishop that had crowned him, and Hugh the Bishop of London, by the Kings commandement wrote that which the said Jurats had delivered: And these (as saith Ingulphus9 ) by publike proclamation, hee declared to bee authentike, and, for ever, under grievous punishment, to bee inviolably observed.10 The summe of which, composed by him into a Magna Charta (the groundworke of all those that after followed) hee blessed with the seale of securitie & wish of eternitie, closing it up with this generall: And wee further commaunde that all men keepe and observe duely the Lawes of King Edward: rearing up the frontispice ofhisgratious worke with his glorious stile, Willielmus Dei gratia Rex Anglorum, Dux Normannorum, Omnibus hominibus suis Francis & Anglicis Salutĕ. Statuimus imprimis super omnia vnum Deum per totum regnum nostrum venerari, vnam fidem Christi semper inuiolatam custodiri, pacem & securitatem et concordiam, iudicium & Iusticiam inter Anglos & Normannos, Francos & Britones Walliae & Cornubiae, Pictos & Scotos Albaniae, similiter inter & Insulanos, provinoias et patrias quae pertinent ad coronam et dignitatem, defensionem & obseruationem & honorem regni nostri, et inter omnes nobis subiectos per vniuersam Monarchiam regni Britaniae firmitèr & inuiolabilitèr obseruari.11W. Ruf. that succeeded his father,12 so exceeded himself in misrule & oppression, that there is left no register of his goodnes in this kind, for in his time the kingdom was oppressed with unjust exactions, & the Justice corrupted with evill usages, as appeareth by the great charter of his succeeding brother, king Henrie the first,13 who therby tooke away all the evill customes wherewith the kingdome of England was unjustly oppressed, and restored the Lawe of King Edward, (such Lawe as was in the time of the holy Confessor) with those amendments which his father added by the advise of his barons. What these were Math. Paris14 (who hath inserted the Charter in his storie) declareth to be the ancient Liberties and Customes which flourished in this kingdome in the time of holy king Edw. And herewith agreeth Hoveden15 in these words: King H. the first took away all the evil customes & unjust exactions wherwith the kingdome of England was unjustly oppressed: he setled an assured peace in his whole kingdome, and commanded the law of king Edward to be observed, he restored to all &c. The which, almost in the same phrase, Florentius16 a Monke of Worcester, and living in the raigne of Henry the first, observeth. And by whome the Injustice of the foregoing age proceeded, and by whome and how redressed William17 the Monk of Malmesbury delivereth in these words: Henrie born in England, of kingliebirth, &c. by his proclamation speedily sent through England: restrained the injustice brought in by his brother and Ranulph &c. and abolished the unwonted lenitie of some lawes, giving assurance by his owne and all the Nobilities oth, that they should not be deluded &c. K. Stc. that succeeded his uncle, confirmeth in his great Chartre of liberties to the barons & commons of Eng. in these words,18All the Liberties and good lawes which H. king of England my Uncle graunted unto them: And I graunt them all the good lawes and good customes which they enjoyed in the raigne of K. Edw. and was so jealous of invocation, as Roger Bacon19 the learned Frier saith in his book, de impediments sapientiae: King Stephen forbad by publicke edict that no man should reteine the Lawes of Italie formerly brought into England. The next to this man was Hen. 2. who in another great Charter established the former Lawes in these words.20 Henrie by the grace of God King of England, duke of Normandie, and Aquitaine, Earle of Aniou, to all Earles, Barons, and his faithful Subiects of France, and England, Greeting, Know ye that I, to the honour of God & holy Church, & for the common amendment of my whole kingdome, have graunted and restored, And by my Charter confirmed to God and holy church, and to all Earles and Barons, and to all my Subjects, All grants and donations, & liberties and free customes, which king Henry my Grandfather gave and graunted unto them. And all those evill customes which he abolished and remitted, I likewise doe remit, and for me and my heires doe agree shall be abolished. By which words it appeareth, that he had reference to that Charter of his Grandfather that abolished the unjust exaction and usages of his brothers raigne, and confirmed the old and excellent laws under Saint Edwards government. And no lesse ancient, even by the like authorities will appeare the customes of some of our Cities: For of London saith Fitzstephen21 (a Monke of Canterburie) it was built before that of Remus and Romulus (meaning Rome) wherefore even to this day they use the same ancient laws publike Ordinances &c. Let us descend a little lower to the times of King John the son of Henrie the 2. He in the 17. yere of his raign made the two great Charters, the one called Magna charta (not in respect of the quantitie but of the weight) & the other Charta de Foresta, which are yet extant to this day. Of which the Monk of Saint Albons faith,22Quae ex parte maxima leges antiquas & regni consuetudines continebant: that is, which for the most part did conteine the ancient lawes and customes of this Realme. And soone after he saith: And those lawes and liberties which the Nobilitie of the Realme did there seeke to confirme, are partly in the above said Charter of king Henrie, and partly taken out of the ancient lawes of King Edward: not that king Ed. the Confessor did institute them, but that he out of the huge heape of the lawes, &c. chose the best and reduced them into one, as in the preface to the third part of my reports more at large it appeareth. The said great charters made by king John are set downe in haec verba in Math. Par. pa. 246.23 and in effect doe agree with Magna Charta24 and Charta de Foresta established & confirmed by the great charter made in 9. H. 3. which for their excellencie have since that time beene confirmed & commanded to be put in execution by the wisdome & authoritie of 30. severall parliaments and above. And these Laws are in the Register in many writs called Liberties, for there it is said, according to the tenor of the great charter of the liberties of England, so called of the effect, because they make free: And Math. of Par. and others (as it appeareth before) stileth them by the same name. So as the antiquitie and excellencie of our common lawes doe not only appeare by Historians of our owne persuasion in Religion, but by these monasticall writers: the which I have added the more at large in this point to that which I affirmed in my former prefaces, to the end that they agreeing together, may the better persuade both parties to agree to the truth manifestly proved by many unanswerable arguments in the said preface to the third part, and by the authoritie of Sir John Fortescue chiefe Justice in the raign of K. Henry the sixth amongst others at large cited in my preface to the 6. part, by all which it is manifest, that in effect the verie bodie of the common lawes before the conquest are omitted out of the fragments of such acts and ordinances as are published under the title of the Laws of king Alured, Edward the I. Edward the second, Ethelstane, Edward, Edgar, Etheldred, Canutus, Edward the Confessor, or of other kings of England before the Conquest. And those few chapters of Lawes yet remaining, are for the most part certaine acts and ordinances established by the said severall kings by assent of the common councell of their kingdome. As for the excellencie of our municipall lawes I will adde to that which hath been said before, that the monk of Crowland25 calleth them the most just lawes, and Math. of Westmn26 of them saith: They being by the appointment of king Knute translated out of English into Latine, were by him for their equity commanded to be observed as well in Denmarke as in England. And of this matter thus much shall suffice. But yet before I take my leave of these Historians, I must incounter some of them in two maine points. First, that the trial by Juries of 12. men (which is one of the invincible arguments of the antiquitie of the common laws, being only appropriated to them) was not instituted by the powerful wil of a Conqueror, as some of them peremptorily affirme they were. The 2. that the Court of common pleas was not erected after the statut of Magna Charta (which was made in the 9. yere of king Henry the third) contrary to that which others do hold. For the first, I referre the learned Reader to the preface before the 3. part of my Reports, where he shall receive full & cleare satisfaction herein, and will onely adde the judgement of the great ornament (in his kinde) of this kingdome in his Britania pag. 109. with which I wil conclude this point: But wheras Polidore Virgil writeth, that Wil. the Conqueror first brought in the trial by 12. men, there is nothing more untrue, for it is most certaine and apparent by the laws of Etheldred, that it was in use many yeres before: Neither hath hee any cause to terme it a terrible Judgement; for free-borne and lawfull men, are duly by order impanelled & called forth of the neighborhood; these are bound by othe to pronounce and deliver up their verdit touching the fact; they heare the counsell plead on both sides before the bench or Tribunal, and the depositions of witnesses, the taking with them the evidences of both parties, they are shut up together and kept from meat drink and fire (unlesse peradventure some one of them bee in danger of death) until they be agreed of the matter in fact: which when they have pronounced before the Judge he according to Law giveth sentence. For this manner of triall our most wise & provident ancestors thought the best to finde out the truth, to auoid corruption, & to cut off all partiality & affections. And for the excellencie and indifferencie of this kinde of triall, and why it is onely appropriated to the common lawes of England, reade Justice Fortescue cap. 25. 26. 27. 28. 29. 30. 31. 32.&c. which being worthy to be written in letters of gold for the weight and worthines thereof, I will not abridge any part of the same, but referre the learned Reader to the fountaine it selfe.
As to the second, it is clearer then the light at noon day, that the court of Common pleas was not erected after the statute of 9. H. 3. Cap. 1. 1. Common pleas shall not follow our Court, but shal be holden in some place certaine. First, at the same time, and in the same great Charter, and in the next Chapter saving one, the Court of common pleas is expresly named; Assises of Darreine presentment shall alwaics bee taken before the Justices of the Bench, & no man doubteth but Justiciarÿ de Banco are Justices of the Common pleas. 2.King Henry the first, the sonne of the Conquerour, by his Charter, graunted to the Abbot of B. a Charter of confirmation of all his usages &c. And further graunted, that hee should have Conusance of all manner of pleas, so that the Justices of the one bench, or of the other, or Justices of Assise, should not meddle &c. and this Charter appeareth in 26. lib. Ass. pl. 24.27 3. In the booke case of 6. Edw. 3. fol. 54. 5528 it appeareth, that 15.29Mich. in the sixt yere of king Richard the first, a fine was levied betweene the Abbot of S. and Theoband C. of the advowson of the Church of Preston, before the Archbishop of Canterbury, the Bishop of Rochester and others (Justices del Banke, that is, of the court of common Pleas.) And it appeareth in Master Plowdens Com. in Stowels case,30 that fines were levied before the Conquest. In the Treasorie there are yet remaining some fragments of records and judgements in the raigne of king Rich. the 1. as wel coram Justiciariis de Banco, as coram Rege. Martin de Pateshull was made Justiciarius de Banco in the first yere of H.3.31 which was before the statute of Magna Charta. And in an. 10. Ed. 4. fo. 5332 all the Judges of England did affirme, that the Chauncery, Kings Bench, Common-place, and Eschequer, be all the kings Courts, and have bene time out of memory of man; so as no man knoweth which of them is the most auncient. But in a case so clere this shall suffice. And yet let me observe, that divers Bishops and other Ecclesiasticall persons in ancient time, did studiously reade over the lawes of England, and thereby attained to great and perfect knowledge of the same. And the saide Martin de Pateshull who was, as before is saide, chiefe Justice of the Court of Common pleas in the first yere of king Hen. the third, was also Deane of Paules; of whome it is said that he was a man of great wisdome and exceeding well learned in the Lawes of this Land. And John Britton33 bish. of Hereford, wrote an excellent worke in the daies of King Edward the 1. of the common lawes of England, which remaine to this day. And many Noblemen have been excellently learned in the laws of England, as taking one example for many, least this preface should grow too large, Ranulphus de Meschives the great and worthy Earle of Chester and the third and last of that family, (having as mine Author saith) great knowledge and understanding in the lawes of this Land, compiled a Booke of the same Lawes, as a witnesse of his great skill therein: of whom Mathew Par. pag. 350.34 reporteth (as an effect of his learning and knowledge in the Lawes of this Realme:) But Ranulph Earle of Chester alone valliantly resisted, as not willing to bring his Countrey into servitude (by paying of Tenths to the Pope:) And would not suffer the religious or Clerkes of his fee to pay the sayde Tenths, although all England and Wales, Scotland and Ireland, were compelled to pay them. And at a partiament holden in the twentieth yeare of king Henry the third,35 the Act saith: All the Bishops desired the Lordes that they would consent, That all such as were borne afore Matrimony should be legitimate as well as they that be borne within Matrimony, as to the succession if inheritance, forasmuch as the Church accepteth such for legitimate: And all the Earles and Barons with one voyce answered, That they would not change the laws of this Realme, which hitherto have beene used and approved. Which uniforme and resolute answere of all the nobilitie of England, nullo contradicente,36 doth shew the inward and affectionate love & reverence they bare unto the common Lawes of their deere Countrie. The certaine and continual practise of the common lawes of England soone after the Conquest, even in the time of King Henry the first the Conquerours sonne (which almost was within the smoake of that fierie Conquest) and continued ever since, doe plainely demonstrate that those lawes were before the dayes of William the Conquerour. For it had not beene possible to have brought the Lawes to such a perfection as they were in the raigne of King Henry the second succeeding, if the same had beene so sodainely brought in or instituted by the Conquerour: Of which lawes this I will say, That there is no humane Lawe within the circuit of the whole world, by infinite degrees, so apt and profitable for the honorable, peaceable, and prosperous governement of this kingdome, as these auntient and excellent lawes of England be.
Ranulphus de Glanuilla chiefe Justice, in the raigne of King Henry the second, learnedly and profoundly wrote of part of the Laws of England (whose workes remaine extant at this day:) and in his preface he writeth, That the king did governe this realme By the lawes of the kingdome, and by customes founded upon reason, & of antient time obtained. By which words spoken so many hundred yeres since, it appeareth, that then there were Lawes and Customes of this kingdome grounded upon reason and of antient time obtained, which hee neither could nor would have affirmed, if they had beene so recently and almost presently before that time instituted by the Conquerour. And in token of my thankfulnes to that worthy Judge,37 whom I cite many times in these Reports, (as I have done in my former) for the fruit, which I confesse my selfe to have reaped out of the faire fieldes of his labors, I will, for the honor of him, and of his name and posteritie, which remaine to this day (as I have good cause to know) impart and publish both to all future and succeeding ages which I have found of great antiquity, & of undoubted verity; the original wherof remaineth with me at this day, and followeth in these words. Ranulphus de Glanvilla Justiciarius Angliae,38fundator fuit domus de Butteley39in com’ Suff. quae fundata erat anno Regis H. filii imperatricis 17. & anno dom’ 1171. quo anno Tho. Becket Cantuar’ archiepiscopus erat occisus. Et dictus Ranulphus nascebatur in villa de Stratford in com’ Suff. & habuit manerium de Benhall cum toto dominio ex dono dicti regis40 H. Et duxit in uxorem quandam41 Bertam filiam domini Theobaldi de Valeymz senioris, dom’ de Parham, qui Theobald per cartam suam dedit dicto Rañ & Bertae uxori suae totam terram de Brochous cum pertin’, in qua domus de Butteley sita est, cum aliis terris & tenementis in libero maritagio. Pradictus verò Ranulphus procreavit tres filias de dicta42 Berta, viz. Matildam, Amabiliam, & Helewisam, quibus dedit terram suam ante progressum suum versus terram sanctam.43 Matilda, prima soror, habuit ex dono patris sui totam villam de Benhall integralitèr unà cum advocatione ecclesiae five monasterii beatae Mariae de Butteley, & nupsit cuidam militinomine Will de Auberuille, de quibus processit Hugo de Auberuille, de ipso Hugone Will de Auberuille, de ipso Willielmo processit quaedam Johanna filia unica & haeres, quae nupsit cuidam militi de Cancia nomine Nicholao Kyryell qui duxit in uxorem Margaretam filiam dom’ Galfridi Peche; & ille Nich’ vendidit dom’ Guidoni Ferr̄ praedict’ manerium de Benhall: & tum ille Nich’ de uxore sua genuit alium dom’ Nich’ militem in Cancia, qui vixit ante primam pestilentiam. Ipse autem Guido talliavit praedictum maner’ in cur’ dom’ Regis apud Westm’ in crastin’ Ascensionis dom’, anno regni regis E. filij E. primo, sibi & Alianorae uxori suae & haeredib’ dese exeunt’: Et si ipse Guido sine haerede decederet, rem’ Wil’ de S. Quintino & haeredibus. Amabilia, secunda soror, habuit ex dono patris sui medietatem vill’ de Bawdeseia & medietatem vill’ de Fynbergh. Amabilia praedicta habuit virum nomine Radulphum de Ardern, de quo processit Tho. de Ardern filius & haeres, De Th’ Radul filius & haeres, qui feossauit priorem & conuentum de Butteley de medietate villae de Bawdesey. De predicto Radulpho processit quidam Tho. Ardern filius & haeres. Helewisa, tertia soror, habuit ex dono patris sui aliam medietatem villae de Bawdesey praedicta, et aliam medietatem villae de Fynbergh praedicta. Helewisa praedicta habuit virum nomine Robertũ filium Rob. de quo processit Rad’ filius et haeres, qui feoffavit Warinum de Insula de medietate praedicta villae de Fynbergh. De Rad’ processit Rob’ filius & haeres qui feoffavit Ran’ fratrem suum de medietate praedicta villae de Bawdesey. Et nota, quod praefatus Ranulp’ de Glanuilla fuit vir praeclarissimus genere, utpote de nobili sanguine,44vir insuper strenuissimus45corpore,46qui provectiori aetate ad terram sanctam properauit,47& ibid’ contra inimicos crucis Christi48strenuissimé usq; ad necem dimicauit. Fuit autem Berta49ex illustri prosapia orta, filia dom’ Theobaldi Valeymz senioris domini de Parham, quorum & Ranulphi & Bertae50consanguinei multi, de quibus plures milites, omnes vero gentiles & generosi, istam partem Suff. eorum incolatu & generosa carnispropagine honorificè illustrabant annis multis.51 And Henr’ de Bracton a Judgeofthisrealm, in the raigne of K. Henry the third in his first chapter of his first Booke Numerotertio saith: I Henry de Bracton have set my mind to serch out diligently the ancient Judgements of the just, not without much paines and labor &c. So as he stileth the laws of England by the name of The auncient Judgements of the Just. The author of the Booke called Fleta (who wrote in the raigne of king Edward the first) in his Preface to his Worke agreeth with Glanvill concerning the Antiquity and honor of the lawes of England, and there sheweth the reason wherefore he intitled his book by the name of Fleta: But this Treatise which may worthily be called Fleta, because it was compiled, in the Fleete, of the Lawes of England. I have a Register of our Writs originall, written in the raigne of K.H.2. (in whose time Glanvill wrote) containing the originall Writs which were long before the Conquest, as in the said Preface to the third part appeareth, and yet also remaining in force, such excepted as have been instituted or altered by Acts of parliamént since that time, which is the most ancient booke yet extant of the Common law, and so ancient, as the beginning whereof cannot be shewed. To the 2. question I doe affirme, That the Statutes of Magna Charta, Charta de Foresta, Merton, Marlebridge, Westm’ I. De Bigamis, Gloc’, Westm’ 2, Articuli super cartas, articuli Cleri, statutum Eboraic, Praerogativa regis, and some few others, that be auncient, amongst which, the statute of 25. E. 3. is not to be omitted, touching tresons (which for the most part are but declarations of the Common law) together with the original writs contained in the Register concerning comon pleas, and the exact & true formes of Inditements & Judgements thereupon in criminall causes, are the very body, & as it were the very text of the common lawes of England. And our yeare Bookes and Records yet extant for above these 400. yeares, are but Commentaries and Expositions of those lawes, originall writs, inditements and judgements. By two cases, the one of Jebu Webbe, & the other called Blackamores case now among others published & resolved in this blessed &florishing spring time of his Majesties Justice, specially (among many others) it appeareth, that our Booke cases and Records are also right Commentaries, and true Expositions of Statutes and Acts of parliament. And for an example of an originall writ, among many other, I referre the studious Reader especially to Calyes case in Pasc’ 26. of the raigne of the late Queene Eliz. of ever blessed memorie, now published, whereby it more clerely appeareth how iudicious the opinion of Justice Fitzh. is in his preface to his N.B. where he saith, that originall writs are the foundations whereupon the Law dependeth, & how truly he calleth thé the Principles of the law, & fortifieth also the opinion of Bracton li. 5. fo. 413. where he faith, that (Breue formatum est ad similitud’ regulae iuris:52 ) which Case I have reported in that forme to this end, that Students seeing the singuler use of original writs, wil in the beginning of their study learn them, or at least the principallest of them without booke, whereby they shal attaine unto 3.things of no smal moment: 1. to the right understanding of their books: 2. to the true sense & judgement of law: & lastly, to the exquisit forme & maner of pleding. And the Case of Barretry standeth for an example of an inditement. The neglect of Assises & reall actions hath produced 2. inconueniences in the Common wealth, & a 3. is (if it be not stept on already) like to insue: 1. the multitude of suits in personall actions, wherein the realty of freehold & inheritance is tried, to the intollerable charge and vexation of the subject: 2. multiplicitie of suits in one and the same Case, wherein oftentimes there are divers verdits on the one side, and divers on thother, and yet the pf. or def. can come to no finite end, nor can hold the possession in quiet, though it be often tried & adjudged for either party. And this groweth, for that the right institution of the Lawe is not obserued, to the uniust slander of the common law, & to the intollerable hindrance of the common wealth. In personall actions concerning debts, goods, & chattels, a recovery or bar in one action is a bar in another, and there is an end of the controversie. In reall actions for freehold & inheritance, being of a higher & worthier nature, & standing upon greater variety of titles & difficulties in law, there could not be above 2. trials, or at the most (& that very rarely) 3. and in the mean time, after one recovery, the possession resteth quiet. 3. The discontinuance of real actions will produce in the end 2. dangerous effects, viz. want of true judgement in the Professors of the Law, & grosse ignorance in Clerks of the right entries & proceedings in those Cases. We see that workes of Nature are best preserved from their owne beginnings, frames of Policy are best strengthned from the same ground they were first founded, & justice is ever best administred when Laws be executed according to their true and genuine institution. And therefore to the end the ancient & excellent institution of the Common Law might be recontinued for the good of the common wealth, (For it is convenient for the commonwealth, that there be an end of controversies.) I have therfore reported 2. Cases of Assises, for that the writ of Assise (in case where it lieth) is optimum & maxime festinum remedium:53 And the cases of Buckmere & Syms of writs of Formedon in remainder: & Ed. Altuams case of a writ of Dower. And we, that are Judges of the Realm, have resolved to cut off al superfluous & unjust delaies, & as much as we can, all fained dilatory & curious pleadings: the admittance whereof, of late time, hath bin a great cause why reall actions, & specially writs of Assise, have not bin so frequent as they have been. And though in reall actions, as the weight of the cause requireth, there are longer times given in the proceeding, then in personall actions, as appeareth in Justice Fortescues booke ca. 53. (where it appeareth that those times are neither overlong, nor without just cause; For many times in deliberations judgements grow to ripenes, but in over hastie processenever:) yet shal the demaundant come to a timely finall end by these reall actions, which he shall never do by prosecution of personall actions for the triall of freehold or inheritance. And they that well observe the three parts of the Reports in the raigne of king E. 3. shal find few or no actions of trespas or personal actions brought concerning any lands or tenements, but either where no title of freehold or inheritance came in question, or where the plaintife could not have any reall action: and therfore amongst many others it appeareth in an action of trespas Quare clausum fregit54 brought by the B. of Coventry & Lichfield in 6. Ed. 3. fo. 34. b. exception was taken to the replication of the B. for that he pleaded in the realty, for alwaies in those daies real cases were determined in real actions, which made the Judges in those times to merit that honorable testimony which Thirning chiefe Justice attributeth to them in the 12. yere of the raigne of K. Henry the fourth that they were the greatest Sages that ever were: & that in the raigne of K. Edward the third the law was of the greatest perfection that ever it was; & that pleding (the greatest honor & ornament of the law) grew in the raigne of that king to that excellency, as that the pleading in former times having regard to the pleadings in the raigne of king E.3. are holden by Thirning to be but feeble. I have reported the great case of the duchy of Cornwall for divers causes. 1. Although this very case hath bin long since (as shal appere in this Report) judicially adjudged, yet hath the same of late bin called in question againe, partly for that the said judgements remain privatly amongst the rest of the kings Records, unknown but to a few, & partly, for that the resons & causes of the judgements being (according to law) not expressed in the Record it self, gave no ful & cleere satisfaction: but principally, for that there was no report made & published of the true causes & resons of those resolutions & judgements. 2. To the end that such as have not any part therof, may hereby be instructed of the true state of the possessions of this duchy, & by this means be admonished how they deale with any that have bought or purchased any of these possessions; & that such as have acquired or gotten any of them, knowing that the judgement was given in this case, both upon many direct authorities in the point, & upon plain & demonstrative reason (the 2. main causes of true satisfaction) may therwith rest satisfied. The last, but not the least, is, for that the most noble & excellent Prince, who is omine nomine numinemagnus,55 &thegreatest that ever was before him, hath in his first Cause in hoc forensi dicendi genere56 gotten victorie. I have for some respects reported the same in Latin, wherein I have been contented potiùs scribere propriè quam Latinè;57 & for that the words of art which wil beare no translation, are herein so many & so frequent, I have added the report therof in the vulgar language, that the reader may use either of them at his pleasure. There are certein other cases now published by me, concerning some of the most abstruse darke & difficult points in the law, & yet very necessary to be known, as in Arthur Blackamores case concerning Amendments, Beechers case of a Retraxit, departure in despite of the Court, & of Fines and Amercements, Greisleyes case of affearing of Amercements, & some others. And I have of purpose done these as plainly and cleerly, and therewith as briefly as I could. For the lawes are not like to those things of Nature, which shine much brighter through Cristall or Amber, then if they be beheld naked: nor like to Pictures that ever delight most when they are garnished & adorned with fresh and livelie colors, and are much set out & graced by artificial shadowes. And, whether it be in respect of the matter, or my yeres growing fast on, being now in the 60. yere of mine age, or for what other respect soever it be, sure I am I have felt this eighth Work much more painfull then any of the other have been unto me. And yet hath almighty God of his great goodnes (amidst my publike imploiments) enabled me hereunto. And as the Naturalists say, that there is no kinde of bird or fowle of the wood or of the plaine that doth not bring somewhat to the building & garnishing of the Eagles nest, some, cinnamon and other things of price, and some, juniper and such like of lesser value, every one according to their quality, power, and ability: so ought every man according to his power, place, and capacity to bring somewhat, not onely to the profit and adorning of our deere Conntrey (our great Eagles nest) but therein also, as much as such mean instruments can to expres their inward intention & desire, to honor the peaceable days of his Majesties happy & blessed government to al posterity. And for that I have been called to this place of Judicature by his Majesties exceeding grace & favor, I hold it my duty, having observed many things concerning my profession, to publish amongst others certaine Cases that have been adjudged andresolved since his Majesties raigne in his highest Courts of ordinary Justice in this calme and florishing spring time of his Majesties justice, amounting with those of my former edition in al to 84. And (if it shall please God) I intend hereafter to set out an other Worke, whereof I have onely collected the materials, but not reduced them to such a forme as I intend, left if I should leave it as it is, it might, after my death, be published (as hath bin done in the like case) before it be perfected. Your extraordinary alowance of my former Works, together with your continuall and earnest desire of other Editions, have much incouraged me to undertake these paines: And if you shall reape in your studies such profit thereby, as I from my heart desire, and as you (from your desire of knowledge) doe expect, then shall my Labors seeme light unto me, for my expectation shall be satisfied.
[3. ][Ed.: To God, to the country, to you.]
[4. ][Ed.: records of age and truth.]
[5. ]Ex vita Abbatis sancti Albabani.
[6. ][Ed.: the good, approved, and ancient laws of the Kingdom.]
[7. ]Ex lib. Monast. de Lichfield.
[8. ][Ed.: to the right [or] the left,]
[9. ]Ex Ingulpho Abbate Crowlandense. Ex libro Antiquarum legum.
[10. ]Ex libro manuscripto de legibus antiquis.
[11. ][Ed.: William, by the grace of God king of the English, duke of the Normans, to all his men, French and English, greeting. We command firstly, above all things, that God be venerated throughout our realm, the faith of Christ kept for ever inviolate, and peace, security and concord, judgment and justice between English and Normans, French and Britons, Welsh and Cornish, Picts and Scots of Albany, likewisebetween [blank] and the islanders, the province and countries which belong to the crown and dignity, defence, notice and honour of our kingdom, and among all our subjects throughout the whole monarchy of the kingdom of Britain, be firmly and inviolably observed.]
[12. ]Ex Math. Par. monacho sancti Albani.
[13. ]Ex Rogero Hoveden presbitero.
[14. ]Ex Mat. Par.
[15. ]Ex Roger Hoveden.
[16. ]Ex Florentio-monach. Wigorn.
[17. ]Ex Willielmo monacho Malmesbur.
[18. ]Ex libro legũ Antiquarum.
[19. ]Ex libro Rogeri Bacon de impedimentis sapientie.
[20. ]Ex libro legũ Antiquarum.
[21. ]Ex Stephanide monacho Cát.
[22. ]Math. Par. an. domini 1215. pa.246. 247.
[23. ]Math. Par. pa. 246.
[24. ]Magna Carta. 9.H.3.
[25. ]Ex Monache Crowlandiae.
[26. ]Ex Math. Westm.
[27. ]26. lib. Assi. pl. 24.
[28. ]6. Ed. 3. 54. 55.
[29. ]15. Mich. 6. Ric. primi.
[30. ]Pl. Com. in Stowels case.
[31. ]Ex. rot. Pat. de anno 1.H.3.
[32. ]10. Ed. 4. 53.
[33. ]Joh. Briton Episcopus Heref.
[34. ]Math. Par. pa. 350.
[35. ]St. Merton c.9.
[36. ][Ed.: no one speaking against.]
[37. ]He did beare azure, a chiefe indented or: which coatearmor the Pastons of Norf: doe quarter at this day.
[38. ]Justiciarius Angliae. [Ed.: For translations of notes 38–50 see note 51.]
[39. ]Fundator prioratus de Butteley.
[40. ]Donum Regis.
[41. ]Uxor eius.
[42. ]Filiae eius.
[43. ]Nuptie et dotationes filiarũ, & earum posteritas.
[44. ]Vir preclariffimus de nobili sanguine.
[45. ]Vir strenuissimus.
[46. ]Vide Pl. com. f.
[47. ]368. b. obijt apud Acres.
[48. ]Ad terram sanctam peregrinatus.
[49. ]Effusio sanguinis contra inimicos Christi.
[50. ]Prosapia uxoris Bertae.
[51. ][Ed.: Ranulph de Glanville, Justiciar of England, was founder of the house of Buttely in county Suffolk, which was founded in year 17 of the reign of Henry the son of the empress, and in the year of the Lord 1171, the same year that Thomas Becket the Archbishop of Canterbury was slain. And said Ranulph was born in the vill of Stratford in county Suffolk and held the manor of Benhall with full dominion, by gift of the said king Henry. And he took to wife Berta, the daughter of Lord Theobald Valeymz senior, Lord of Parham, and this Theobald gave by his charter to said Ranulph and Berta his wife all the land of Brochous, where the home of Butteley is situated, with its appurtenances, along with other lands and tenements, Said Ranulph sired three daughters from said Berta, namely Matilda, Amabilia and Helewisa, to whom he gave his land before his pilgrimage to the Holy Land. Matilda, the first sister, had as a gift from her father the whole vill of Benhall along with a claim on the church or monastery of Holy Mary of Butteley, and she wed a certain knight by the name of Will de Auberville, from whom was born Hugo of Auberville, from whom was born Will de Auberville, from whom was born a certain Joan, sole daughter and heir, who wed a certain knight from Kent by the name of Nicholas Kyryell, who took to wife Margaret the daughter of Lord Galfridus Peche; and that Nicholas sold to Lord Guido Ferr said manor of Benhall: and then Nicholas sired from his wife another Lord Nicholas, a knight in Kent, who lived before the first plague. And said Guido entailed said manor in the court of the Lord King at Westminster on the morrow of the Ascension of the Lord, in the first year of the reign of king Edward the son of Edward I, to him and his wife Eleanor and the heirs proceeding from him. And if Guido himself died without an heir, he bequeathed the estate to Will de S. Quintinus and his heirs. Amabilia, the second daughter, had as a gift from her father half of the vill of Bawdesia and half of the vill of Fynbergh. Amabilia had a husband by the name of Radulph de Ardern, from whom was born Thomas de Ardern his son and heir, and Thomas in turn sired Radulph his son and heir, who enfeoffed the prior and convent of Butteley with half of the vill of Bawdesey. Said Radulf sired a certain Thomas Ardern his son and heir. Helewisa, the third sister, had as a gift from her father half of the said vill of Bawdesey, and also half of the said vill of Fynbergh. Said Helewisa had a husband by the name of Robert son of Robert, and from him was born Radulph his son and heir, who enfeoffed Warinus de Insula with said half of the vill of Fynbergh. From Radulph was born Robert his son and heir, who enfeoffed Ranulph his brother with said half of the vill of Bawdesey. And note, that said Ranulph de Glanville was a man of very distinguished birth, of noble blood and enormous strength of body, who at an advanced age made a pilgrimage to the Holy Land, and there battled vigorously to the death against the enemies of Christ. Moreover, Berta was of an illustrious family, the daughter of Lord Theobald Valeymz senior, Lord of Parham, and Ranulph and Berta had many kinsmen, many of whom were knights, and all of whom were gentlemen of noble birth, and they and their illustrious progeny for many years gave great honor to county Suffolk.]
[52. ][Ed.: A formed writ is like a rule of law.]
[53. ][Ed.: the best and most speedy remedy.]
[54. ][Ed.: [to show] why he broke his close (the writ of trespass).]
[55. ][Ed.: great by omen, by name, by power.]
[56. ][Ed.: in this forensic manner of speaking.]
[57. ][Ed.: to speak rather in my own language than in Latin.]
[58. ][Ed.: Farewell.]