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(Preface) Deo, Patriae, Tibi. 5 - 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.5
At my times of Leisure, after my Publick Services (chearfully taking Industry, mine old Acquaintance, for my Comfort, and aiming at the Good of my dear Country for my comfort) and beginning with this continual and fervent Prayer, The glorious Majesty of the Lord our God be upon us; oh! prosper thou the Works of our hands upon us, Oh! prosper thou our handy works;6 I have, by the most gracious direction and assistance of the Almighty, brought forth and Published this Tenth Work to the view of the Learned and Benevolent Reader.
This part containeth a true and just Report of certain Judgments and Resolutions given in his Majesty’s principal Courts of Justice, upon great and mature deliberation, and in Cases of as great Importance and Consequence as in any of my former Commentaries, which I have taken upon me and finished (though it hath been more than difficult to me) to avoid that, the which venerable Verity doth blush at for fear, that is, That she which is the Foundation of Justice should not be hidden and unknown; Veritas abscondi erubescit; nihil enim magis metuit quam non proferri in publicum, vult se in luce collocari; & quis illam occulat occultetue, quam omnium oculis expositam esse est aequissimum.7 Neither is she pleased, when once she is found out and revealed to be called into argument and question’d again, as if she were not in Verity indeed; and therefore the Rule is, Eatenus ratiocinandum est donec Veritas inveniatur; ubi inventa est Veritas, ibi figendum Judicium:8 Nay, Sometimes Truth is lost by too much altercation, nimia altercatione veritas amittitur.9 She takes small delight with varnish of Words or garnish of Flowers; for simplex est sermo, Veritas, άπλο̃ς ὁ λόγος τῆς ὐληθείας ἔφυ,10 for her place being between the Heart and the Head doth participate of them both, of the Head for Judgment, and of the Heart for Simplicity. Now whether it be not necessary that the true and just Reasons and Causes of these Judgments and Resolutions, which are not expressed in any Record, for the advancement of Truth and the preventing of Error, in matters of so great Importance and consequence should be plainly and faithfully published to all Posterity, I leave to the Censure of the Learned and Judicious Reader.
Le Case de Sutton’s Hospital.I. I have Reported in the first place (though it be not first in time) the Case of the Hospital of King James, founded by Tho. Sutton Esq; for that in mine Opinion it doth merit to have the Precedency for two Causes. I. For that it was an Exchequer Chamber Case, where, by the Verdict of the Grand Jury of all the Judges of England, it was for the Hospital found Billa vera.11 2. For that the Foundation of this Hospital is Opus sine exemplo.12 The imitation of things that be evil doth for the most part exceed the Example, but the imitation of good things doth most commonly come far short of the President: But this Work of Charity hath exceeded any Foundation that ever was in the Christian World, nay the Eye of Time it self did never see the like.
The yearly value of the possessions first given.For, the first Gift by Sutton of Lordships, Manors, Lands and Tenements to continue for ever for the Maintenance hereof, doth amount to the clear yearly value of three thousand five hundred pound, or near thereabouts, and within these few years will be encreased to about the yearly value of five thousand pounds. Probatio charitatis exhibitio operis.13 And besides all this, Sutton left to descend to the Plaintiff (a Man of mean quality) the Manor of Tarbock in the County of Lancaster, consisting of a fair ancient House, two Parks and large Demesns, plentifully stored with Timber, of the yearly value of 300 l. and 50 l. by the year, of Rent of Assise, together with the Rectory of worth 100 l. per Annum within the same County.
To what intents and purposes the Revenues shall be imployed.The large Revenues of this famous Hospital are to be imployed principally for four special intents and purposes. I. For the Relief of such worthy and well esteemed Captains, Commanders and Soldiers, as be unmarried; and have adventured their Lives in the Wars, for the Service of the Realm, and are fallen into poverty and impotency. 2. For redeeming of poor Captives, especially such as are under the miserable Thraldom of Infidels, and constantly keep their Faith and the profession of true Religion. 3. For the erection of a free School and maintenance of a Learned School-Master and Usher for training up of poor Children in good Literature and vertuous Education, and foravoiding of Idleness, the Mother of all Vice and Wickedness. 4. Within this Hospital there shall be for ever maintained a grave and learned Divine for the Instruction of all within this Hospital, by Preaching of Gods Holy Word, for the due celebration of Divine Service, and the Holy Sacraments, and Catechising of the Youth in the Principles of true Religion; for the accomplishment and maintenance of which and other godly and charitable Uses, the said Founder hath left also a very great and large Stock of Mony to his Executors, Richard Sutton Esq; and John Law Gent. two faithful, constant, and industrious persons.
This Work of Piety and Charity is founded in the spacious and specious House called the Charter-House, in the Parish of St. Sepulchre, in the County of Middlesex, having fair Orchards and Gardens, and containing twenty Acres within the precinct thereof, so as a Man may say of it, that it is tanquam Orbis in Urbe;14 a place (as it appeareth by Record and History) ordained of God for Pious and Charitable Uses. For Sir Walter Many of Henalt (who was created by King Edward the third Knight of the Garter, for his Service which with singular commendation he performed in the French Wars) when the pestilence so reigned in London, that the Church-yards were not sufficient to bury the dead Bodies, especially of the Poor, purchased the place where now this famous Hospital is erected, and caused the same to be consecrated for the burial of poor Christians (which, whiles they lived were the Temples of the Holy Ghost) And the Record telleth you that Anno Domini 1349. & Anno Regni Regis E.3.23. Regnante magna Pestilentia consecratum fuit hoc Caemitarium, &c. in quo, & infra septa ejusdem sepulta fuerunt mortuorum corpora plusquam quinquaginta millia.15 But after the Plague by the goodness of the Almighty ceased, the same Sir Walter Many, in the year of our Lord 1371. and in the forty fith year of the Reign of King Edward the third founded the Carthusian Monks there, who by corruption of speech were vulgarly called the Monks of the Charterhouse. So as the Soyl which of ancient Time was given by Sir Walter Many, a Knight and a Soldier, for the Sepulcher of poor Men when they were dead, is now by Thomas Sutton an Esquire, and a Soldier, converted and consecrated to the Sustenance of the Poor and Impotent whiles they live. And therefore a Man may truly apply to this place the saying of the Royal Prophet, “Thou Lord of thy goodness best prepared it for the Poor.”16 And this Case was Adjudged with the great Applause of all that heard it, or of it, and principally for four causes. 1. For the honour of our Religion, that hath produced such a Work of Piety and Charity, as never was in the Christian World for the first Foundation. 2. For the glory of the Kings Majesty, to whom ex congruo et condigno17 it is dedicated and beareth his Name. 3. For the increase of Piety and Charity, ne homines deterrerentur a piis & bonis operibus:18 And, lastly, ut obstruatur os iniqua loquentium.19 And I dare affirm it, for the honour of our Religion, that more of such good Works of Piety and Charity have been founded within this Realm since the beginning of the Reign of our late Queen Elizabeth of ever blessed Memory, during the glorious Sunshine of the Gospel, than in many Ages before. And it hath been observed, That (by the blessing of Almighty God) this Kingdom of England, for Piety, Profit and Pleasure, viz. 1. For this and such other Works of Piety. 2. For the Crowns Inheritances of Honors, Manors, Lands, &c. and certainty of yearly Profit. And Lastly, for Forests, Chases, Parks, and other places of pleasure, hath exceeded the greatest Monarchy in the Christian World.
Mary Portington’s Case.II. Then have I published in Mary Portingtons Case, for the general good both of Prince and Country, the honourable Funeral of fond and new-found Perpetuities, a monstrous Brood, carved out of meer Invention, and never known to the ancient Sages of the Law; I say monstrous, for that the Naturalist saith, Quod monstra generantur propter corruptionem alicujus principii.20 And yet I say honourable, for that these Vermin have crept into many honourable Families. At whose solemn Funeral I was present, and accompanied the dead to the Grave of Oblivion, but mourned not, for that the Commonwealth rejoyced, that fettered Freeholds and Inheritances were set at liberty, and many and manifold Inconveniences to the Head and all the Members of the Commonwealth thereby avoided.
Jenning’s Case.III. Jenning’s Case vouched in Mary Portington’s Case and doth concern the common Assurance of the Realm.
Lampet’s Case.IV. And next after cometh Lampet’s Case, where Perpetuities of Leases for many thousand years, are by consequence overthrown.
Case of the University of Oxford.V. The Case of the University of Oxford (a Famous Seminary of the Church and Commonwealth) tendeth to the advancement of Gods true Religion, and in some degree for the better maintenance of a Learned and Religious Ministry, out of both of the Universities of Cambridge and Oxford.
Bishop of Salisbury’s Case.VI. The Bishop of Salisbury’s Case against both the diminution of the Possessions and yearly Revenues of the Archbishops and Bishops of the Realm, and the prejudice of their Successors.
Whistler’s Case.VII. Whistler’s Case, containing divers material Points for the better construction of Letters Patents of Inheritance in divers Points commonly hapning.
Wardens of St. Saviours.VIII. The Case of the Church-wardens of the Parish of St. Saviours, wherein Letters Patents of Leases are well expounded, for the quieting of the Possession of many of the Kings Farmours, and by consequence of the Inheritance and Estates of many others.
Case of the Court of Marshlesa.IX. The Case of the Court of the Marshalsea, wherein the Original Institution and Jurisdiction of that Court is clearly manifested. And albeit the Law was well known before in this Case, both by our Book Cases and Records in all succession of Ages: yet as in great Rivers, the courses, windings, fillings in, and out-lets are by experience vulgarly known, whereas the very Fountain and Head it self lie many times hidden and secret, so in this very Case, the Capacity, Process and Priviledge of this Court was often resolved in our Books and Years of Terms, and the Jurisdiction commonly known, and yet the true original Institution and Fountain it self lay somewhat deep and obscure, until it was wrought out by Antiquity, which hath so manifested the true sense of the ancient. Acts of Parliament, and the reason of our Books concerning the original and true Jurisdiction of this Court, as the very opposites, being by venerable Antiquity inlightened, are by Reason convinced, and by Authority satisfied; and therefore they are worthy of reprehension which contemn or neglect the study of Antiquity (which is ever accompanied with dignity) as a withered and back-looking curiosity: multa ignoramus quae non laterent si veterum lectio fuit nobis familiaris:21 ,22 And as the Aluminor spoken of in Law, giveth light and lustre to the letter, or figure to the coloured; so Antiquity doth give light with great grace and ornament, both for the understanding and meaning of the Letter of ancient Acts of Parliament, and of our Book Cases and Authorities in Law. I wish the like were done for all his Majesties Courts of Justice, a matter to them that have orderly read and well observed our Books, and Authorities of Law, of greater labour than difficulty; and yet would the Work greatly tend to the Honour of the Law, and the preventing of many Questions, Suits, and unnecessary Charges and Delays.
Leonard Lovie’s Case.X. Leonard Lovie’s Case is principally grounded upon the Statutes of 32 H. 8. cap. 1. and 34 Hen. 8. cap. 5. of Wills: which Statutes might seem to be made ad extorquenda juris-prudentum ingenia,23 so many and such intricate and knotty Questions have grown out of those Roots, and yet adding this last Case to the former Cases Reported by me for Exposition of those Statutes, to Butler and Bakers, in the third Part of my Reports, fo. 27. Sir George Cursons Case in the sixth Part, fo. 75. Sir Richard Pexals Case in the eightth Part 83. Mights Case ibidem 163. Vigil Parkers ibidem 173, &c. I am perswaded, that if not all, yet the principal scruples and doubts upon those Statutes, are for the general quiet of the whole Realm cleared and resolved. And yet Men of advised and setled Judgments will in their perfect Health provide for their Wives and Children, and by sound advice of Learned Counsel, settle their Estates by Conveyance in their Life-time, which may, if they will, be revocable at their pleasure, and not to leave it to stand wholly upon their last Will, which many times is made when they lye on their Death-Beds (and few Men pinched with the Messengers of Death, have a disposing Memory) sometimes in hast, and commonly by slender Advice, and is subject to so many Questions upon concealed Tenures in Capite,24 and other Tenures by Knights Service (in this Eagle-Eyed World) former Conveyances, and other matters of fact, as in effect they do for want of due information and instruction, superare jurisprudentum artem.25 And it is some blemish or touch to a Man well esteemed for hiswisdom and discretion all his Life; to leave a troubled Estate behind him, amongst his Wife, Children or Kindred after his death. A competent Estate to Wife, Children or Kindred in certainty and quiet, is far better than a greater, accompanied with Questions and Troubles. But hereof I have given also a light touch in the end of Butler and Bakers Case before mentioned; and therefore having given this Admonition, I will here pass over to the next Case.
Dr. Leifield’s Case.XI. Doctor Leifield’s Case, wherein the Reason of Law is opened, wherefore Charters and Deeds pleaded, ought to be shewed forth in Court, and a Caveat given how dangerous it is in Evidence to a Jury to prove Deeds and Writings by Witnesses without shewing forth; for by that means Deeds that be razed, interlined, or otherwise adulterated, or utterly insufficient for want of legal Words, or revocable and void against Fermors and Purchasers, have by concealing and proving the effect of them by disposition of unlearned Men, for want of good direction passed for good and authentical: And afterwards the matter coming in question again, and the Court directing upon examination of the Case, that the Deed ought to be shewed, upon sight thereof the insufficiency appeared, and to the Right prevailed; which I have known both in the Court of Common Pleas, amongst others, Mich. 5 Regis Jacobi, between Small and Blackledge, and in the Court of Starr-Chamber in the Case between Green and Eyer, and sometime in my Circuit since I was called to be a Judge.
Seymor’s Case.XII. Edward Seymor’s Case, concerning Warranties, a cunning kind of Learning (I assure you) and very necessary for the Purchasor: For it armeth him not only with a Sword by Voucher to get the Victory of Recompence by Recovery in Value, but with a Shield to defend a Mans Freehold and Inheritance by way of Rebutter;26 which Title of the Law is in mine Opinion excellently curious, and curiously excellent. And yet when you have read this Case, you will concur with me, that it was more weighty than difficult.
Beaufage’s Case.XIII. Then cometh in Beaufage’s Case, as well for the Safety of Sheriffs and their Officers and Ministers, as for avoiding of Extortion Crimen Expilationis27 which in Holy Writ, in that Imprecation against Gods Enemies, is called a cosening Sin, Let the Extortioner consume that he hath, and let the Stranger spoil his Labour,28 Wherein you shall find the Statute of 23 Hen. 6. c. 10. made for avoiding of Extortion, Perjury and Oppressing, which are for the most part linked together, very well and justaly expounded.
Denbawd’s Case.XIV. Next followeth Denbawd’s Case, for the just and due granting of Tales de Circumstantibus29 at the Assises for the better expedition of Trials; wherein as well the Sheriffs and their Ministers, as the Parties, their Attornies and followers are to be warned, that by no Practice or Confederacy, directly or indirectly, they procure not partial and affected Freeholders to stand in View, or by any shift to be packed on the Tales, whereby Truth and Justice may be subverted, and the necessary Act of 35 Hen. 8. c. 6. sinisterly abused, for that is an high Offence, and to be punished by a grievous Fine, Imprisonment and other Exemplary Punishment.
Lofield versus Clun.XV, XX. Lofield and Clun’s Case, touching Reservation of Rents upon Leases for years, &c, and how the same shall be confirned, necessary to be known of all Men, because in effect it concerneth all.
Legate’s Case.XVI. Then followeth Arthur Legate’s Case, against the robbing of Church and Common-Wealth, of the Crown and of the Country, by colour ofpestilent Patents of theevish Concealments.
Pilfold versus Cheyney.XVII, XVIII. After that Pilfold and Cheyney’s Case, concerning the true and legal manner of the assessing and enquiring of damages, &c. a necessary kind of Learning, for that many Errors, the Causes of Expence and Delay have been therein often committed.
Mayor de Linn’s Case.XIX. Next cometh the Case of the Mayor and Burgesses of King’s Linn in the County of Norfolk, wherein is well discussed what shall be deemed in Law the true name of the Corporation in substance, to the end that Bonds, Covenants, Leases, Grants or Conveyances be not in respect of too much Niceness and Curiosity therein against all Honesty and just Dealing, impeached and overthrown. And to say the truth, I find not in any of our Books from the beginning of the Reign of Edw. 3. until the Reign of Edw. 6. that any Bond, Lease, Grant or Conveyance have been overthrown by Judgment, in respect of the misnaming of the Corporation, but after a Window was once opened, it is a wonder to consider what light hath been taken by Corporations both Spiritual and Temporal, by Questions and Suits in Law, to avoid their own Leases, Grants and Conveyances, to the hindrance of Multitudes, andundoing of many, under colour of misnaming themselves, it grieveth good Men to remember; Sed motos praestat componere fluctus.30 And this Case is reported for the surety and quiet as well of their Fermors31 and others claiming from them, as of themselves; for Estates, Covenants and other things made unto them, ut res magis valeat quam pereat.32
Osborn’s Case.XXI. Then have you Osborn’s Case; wherein is at large resolved where false or incongruous Latin, &c. shall abate, vitiate or make void Writs, Specialties, Charters, Deeds or Records, and where not.
Read versus Redman.XXII. Read and Redman’s Case; concerning Summons and Severance, wherein you shall find, when the death of the Party severed shall abate the Writ, and when not; and in some Cases where the death of one of the Plaintiffs, though he be not severed, shall not abate the Original Writ, &c.
R. Smith’s Case.XXIII. Richard Smith’s Case, in what case a Quare Impedit lyeth de medietate, &c. Ecclesiae.33
3 Cases sur Stat. de Sewers.XXIV, XXV, XXVI. Then shall you read certain Resolutions upon the Statutes and Commission of Sewers, a necessary kind of Learning to be known, but more necessary (I assure you) to be put in due Execution; and that by colour thereof a private be not privily intended, when the publique is openly pretended. And in those Cases is well discussed what the Commissioners of Sewers may justly and safely do by their Wisdoms and Discretions.
Scroop’s Case.XXVII. And lastly Scroop’s Case, touching a Point of Revocations, very necessary to be known, for that Revocations are grown so frequent; and the Resolution of this one Point may prevent many Controversies, that might have grown out of them, and that most commonly between Brethren and others near of Blood and Alliance.
If any do marvail, that seeing the Matter of every particular Case doth rest in a narrow room, and that my manner of Reporting is summary, relating the effect of all that was said of the one side by it self, and so likewise of the other, beginning ever with the Objections, and concluding with the Resolution and Judgment of the Court, (which I hold to be the best order of Relation) wherefore divers of these Reports are drawn into so great a length; the Cause is apparent, though I allow not of it, that the Questions or Objections moved at the Bar, and the Arguments drawn from Books, Cases and other Authorities in Law be so many, and to say the truth, many Questions are raised rather out of the weight of the Matter, than the difficulty of the Case: For I never saw any Case of great Value proceed quietly without many Exceptions in Arrest of Judgment. The antient order of Arguments byour Serjeants and Apprentices of Law at the Barr is altogether altered. 1. They never cited any Book Case or Authority in particular as is holden in 40 Edw. 3. &c. But est tenus ou agree in nostre livres, ou est tenus ou adjudge in termes,34Nul livres cite devant ceux-jours. or such like, which Order yet remains in Moots at the Bar in the Inner Temple to this day. 2. Then was the Citing general, but always true in the particular; and now the Citing is particular, and the Matter many times mistaken in general. 3. In those days few Cases in Law were cited but very pithy and pertinent to the purpose, and those ever pincht most, and now in so long Arguments with such a Farrago of Authorities, it cannot be but there is much refuse, which ever doth weaken or lessen the weight of the Argument. This were easily holpen, if the Matter (which ever lieth in a narrow roomth) were first discerned, and then that every one that argueth at the Bar would either speak to the purpose, or else be short.
But seeing my desire is, and ever hath been, that the Counsel learned, and consequently the Parties might receive satisfaction, for which cause all the Counsel that have argued in the Case to be adjudged, ought to give diligent attendance and attention on those days when the Judges do argue, which are ever publickly long before appointed, and prefixed on certain days. I have for that purpose (the pains being mine own, and the Matter not without some fruit) in the Cases of greatest consequence made the larger Report, comprehending the effect of all that was objected and resolved; and yet he may be a good Miner that findeth and followeth the main Veins, thoughhediscovereth not the small and unvaluable Fillets, for there peradventure materiamsuperabit opus.35 This only I will add as a Caveat to all the Professors of the Law, that seeing their Arguments should tend for the finding out of the true Judgment of Law, for the better execution of Justice, that therein they commit not manifest Injustice; for I am of Opinion that he that wresteth or misapplieth any Text, Book or Authority of the Law against his proper and genuine Sense, yea though it be to confirm a Truth, doth against distributive Justice, which is to give to every one his own. And let not those that heard the Arguments themselves uttered viva voce,36 with the Countenance and Gesture of living Men in the seat of Justice in open Court, fear that when they shall read them privately in a dead Letter, it will want much of the former grace: For though I confess that habet nescio quam energiam viva vox,37 yet when they shall read the effect of all that was spoken at large at several times by several persons, at the Bench and at the Bar by either part, of many and divers Matterscollected and united together, and reduced ad diem38 concerning every particular point, it will case them of much labour, and conduce much to the fetling of their Judgment, and that, if I be not deceived, not without a Students delight.
And for that I am intreated to shew as well the times when the Register, the Mirror of Justices, Glanvil, Briton, Fleta, the Tales or Novae Narrationes, Old Natura Brevium, Littleton and other Books of the Laws now extant were published, and where the Authors themselves appear not in those Books, who were the Authors of the same, as also the Antiquity of Serjeants at Law: For their satisfaction they shall understand, that first the Register, which containeth the Original Writs of the Common Law, is the ancientest Book of the Law; for the Book-Case and Record of 26 Edw. 3. lib. Aff. pl. 24. proveth directly, that Original Writs of Assise and other Original Writs had been time out of mind of Man (that is, the beginning whereof cannot be known either by Remembrance, Reading or Record) long before the Conquest, whereof I give here but a light touch, for that I have cited the same more at large in the Preface to the 3d Part of my Commentaries,39 and I avoid as much as I can, unpleasing Iterations: And this Book is called Registrum Cancellariae40 in the Statute of Westm. 2. cap. 24. because that the Chancery is tanquaem officina Justitiae,41 all Original Writs issuing out of that Court: Now, for the Authority thereof, Bracton, lib. 5. Tract’ de Exceptionibus, cap. 17. fol. 413. faith thus, Breve quidem cum sit formatum ad similitudinem regulae Juris, quia breviter & paucis verbis intentionem proferentis exponit & explanat, sicut regula Juris rem quae est, breviter enarrat, &c. Sunt quaedam formata sub certis casibus de cursu & de Communi Concilio totius. Regni concessa & approbata, quae quidem nullatenus mutari poterint absque consensu & voluntate eorum.42 Now joyning both these Authorities together a Man may safely conclude, that this Book is most ancient and of greatest Authority. I confess, that by force of Acts of Parliament in succeeding Ages, divers other Writs original in Cases newly happening are (as appeareth in the same) added thereunto. And of these ancient Writs, I will say (as Sir Th. Smith a Secretary of State said) that all the Secretaries in Christendom may learn of them to express much Matter in few and significant Words.
For the Mirror of Justices, Speculum Justiciar’,43 the most of it was written long before the Conquest, as by the same appeareth, and yet many things added thereunto by Horn a learned and discreet Man (as it is supposed) in the Reign of Edw. 1.
Concerning Glanvil, he wrote in the Reign of Henry the secondasappeareth by this Book; and what he was it appeareth in my Preface to my Eighth Book, a History in my Opinion worthy the reading. And about the same time was the Treatise called the Old Tenures made.
Bracton, as elsewhere I have noted, wrote about the end of the Reign of Henry the third.
Briton composed a learned Work and published the same in 5 Edw. I. as appeareth in 35 H. 6. by the Commandment of Edward the first (our Justinian) the Tenor whereof runneth in the Kings Name, as if it had been written by him, answerable to Justinians Institutes, which Justinian assumeth to himself, although it were composed by others. This John Briton was Bishop of Hereford, and of great and profound Judgment in the Common Laws, an excellent Ornament to his Profession; and a Safety and a Solace tohimself, Vide Stamford Praerog. R. 6. & 21.
Fleta is a Work well written by some learned Lawyer, who being committed to the Prison of the Fleet, had leasure to compile it there, and therefore stiled his Book by the name of the Fleet, Fleta, and concealed his own Name, as in the Preface to his Work appeareth. The Author thereof is unknown, but it apeareth in his Book that he lived in the Reigns of King Ed. 2. and Ed. 3. Vide lib. 1. cap. 20. §. Qui ceperunt, lib. 2. cap. 66. § Item quod nullus.44 But of the certain time when it was first published (for peradventure it had Additions afterwards) there is some Question made: But in seeking after this, I find that this Book took the Name of the Prison of the Fleet, and that the Fleet took the Name of the River running by it called the Fleet.
The Book entituled Novae Narationes, vouched and allowed in 39 H. 6. 30. by learned Prisot and his Companions, Justices of the Court of Common Pleas, by the Name of the Tales, was published about the beginning of the Reign of King Edw. 3. And Old Natura Brevium afterwards in the Reign of the same King, for f. 100. b. the Statute of 5 Edw. 3.c. 12. is called le novel statute: but since, Additions have been made thereunto. Of this Book Sir Anthony Fitzherbert in his Proem to his Natura Brevium faith as followeth, Et auxy pur cel intent & purpose, fuit compose per un sage & discreet home un liure appel Natura Brevium.45
Fortescue de laudibus legum Angliae46 this Book was written in the Reign of King H. 6. in commendation of the Laws of England, containing withal much excellent Matter worthy the reading. He wrote also a Book in defence of the Title of King Henry the sixth his Sovereign Lord and Master, to the Crown of England; but after out of Truth and Conscience retracted the same, both which I have; wherein he deserved singular commendation, in that he was not amongst the number of those qui suos amassent Errores,47 but yielded to Truth when he found it. This Sir John Fortescue was Lord Chief Justice of England, and afterwards Lord Chancellor of England, and his Posterity remain in great and good account to this day.
Stathom’s Abridgment, first published in the Reign of King Henry the sixth by Stathom a learned Lawyer of that time: And the Abridgment of the Book of the Assizes, published also about the same time, but the Author thereof is unknown.
Littleton’s Tenures, a Book of sound and exquisite Learning, comprehending much of the Marrow of the Common Law, written and published by Thomas Littleton a grave and learned Judge of the Court of Common Pleas, sometimes of the Inner Temple, wherein he had great furtherance by Sir John Prisot Lord Chief Justice of the Court of Common Pleas a famous and expert Lawyer, and other the Sages of the Law who flourished in those days. Of this Book Hotomon a Civilian and Canonist in his Commentary De Verbis Feudalibus, Verbo Feudum,48 giveth his Censure, with what Charity or Discretion, judge learned Reader: Stephanus Pasaverinus excellenti vir ingenio, &c. Libellum mihi Anglicanum, Littletonum dedit, quo feudorum Anglicanorum jura exponuntur, ita incondite, absurde & inconcinne scriptum, ut facile apparet verum esse quod Polidorus Virgilius in Anglicana Historia scribit, stultitiam in eo libro cum malitia & calumniandi studio certare.49 Of Hottoman and his Author I may justly say, and will say no more, volentes esse legis doctores, non intelligentes neque quae loquuntur, neque de quibus affirmeant,50 and therefore let us leave them among the number of those qui vituperant quae ignorant.51 It is a desperate and dangerous gerous Matter for Civilians and Canonists (I speak what I know, and not without just cause) to write either of the Common Laws of England which they profess not, or against them which they know not. Sure I am, it were a ridiculous Attempt and Enterprise in me (that because I confess I have read some little part of the Civil and Canon Laws, and that with some good assistance and help) by and by to write either of them or against them. But their Pages are so full of palpable Errors and gross mistakings, as these new Authors are out of our Charity pitied, and their Books out of our Judgment cast away unanswered. Alas, our Books of Law seem to them to be dark and obscure; but no wise Man will impute it to the Laws, but to their Ignorance, who by their sole and superficial Reading of them cannot understandthedepth of them. I will not sharpen the Neb of my Pen against them, for that I pity the persons, and wish they had more Discretion, for that I honour their Profession. And for Littleton’s Tenures, I affirm and will maintain it against all Opposites whatsoever, that it is a Work of as absolute perfection in its kind, and as free from Error, as any Book that I have known to be written of any Human Learning. And the Posterity of this Sage of the Law (unto whom he is a great Ornament) doth flourish unto this day, of whom a Man of great excellency in his Profession hath justly said, that he was a famous Lawyer, &c. to whose Treaty of Tenures saith he, the Students of the Common Laws are no less beholding than the Civilians to Justinian’s Institutes.
Fitzherbert’s Abridgment was painfully and elaborately collected and published in 11 H. 8. by Fitzherbert then Serjeant at Law. And he wrote also another Book called his Natura Brevium, an exact Work exquisitely penned, and published in 26 H. 8. when he was Sir Anthony Fitzherbert Knight, one of the Judges of the Court of Common Pleas. About the same time he wrote his Treatise of Justices of the Peace; wherewith the Judges (as I have seen it reported) found fault, for that he therein affirmed that Justices of Peace having by their Commission Authority to hear and determine Felonies, &c. could not hear and determine Murder, which (amongst others) they clearly overruled, that Justices of Peace lawfully might do.
Doctor and Student, a Book written in 23 Hen. 8. Dialogue-wise between a Doctor of Divinity and a Student of the Common Law, the Authors Name was S. Germin, a discreet Man and well read, I assure you, both in the Common Law, and in the Civil and Canon Laws also.
A Book intituled a Treatise made by Divines and other learned in the Laws of the Realm, concerning the Power of the Clergy, and the Laws of the Realm, published in time of King Henry the eighth and after the six and twentieth year of his Reign; for therein the Act of Parliament made in that year is mentioned, which Book I have.
The small Treatises concerning the manner of keeping Court Baron and Leet, &c. Modus tenendi Hundredum, &c. Returna Brevium, Charta feodi, &c. and Ordinances for Fees in the Exchequer were all published in the end of the Reign of King Henry the eighth.
The Book called the Diversity of Courts, was compiled after the 21st year of H. 8. for the Statute of 21 H. 8. for Restitution of Goods upon Inditement, &c. is recited, fol. 117. a.
Stamford: This Book containeth two parts, one of the Pleas of the Crown, the other of a lesser Volume, of the Prerogative of the King; but the later was first published by Sir William Stamford Knight, sometimes of Grays Inn, a Man excellently learned in the Common Laws; whose Posterity prosper at this day.
Parkins a little Treatise of certain Titles of the Common Laws, wittily and learnedly composed and published in the Reign of King Edward 6. by John Parkins an Utterbarister of the Inner Temple.
I cannot pretermit the Abridgment of the Statutes, and the Table, to Fitzherberts Great Abridgment, and the Book of Entries, profitably and painfully (I assure you) gathered and published in the Reign of the late Queen Mary, but especially the first two, tending very much to the case and furtherance of the Professors of the Law, collected by William Rastal a Reverend Judge of the Court of Common Pleas, and of great Industry; many things being since added both to his Abridgment of Statutes and to the Book of Entries, who originally was also the Author of the Book called the Terms of the Law.
The Lord Brook’s Abridgment, first published in the 16th year of Queen Eliz. This was gathered by Sir Robert Brook Knight, Chief Justice of the Court of Common Pleas, for his private use, and was published long after his decease, a worthy and painful work, and an excellent Repertory or Table for the Year Books of the Law: Sed satius est petere Fontes quam sectari Rivulos.52
Plowden’s Commentaries, consisting of two parts, both of them learnedly and curiously polished, and published by himself, the one in the 13th year of Queen Eliz. and the other in the 21st year of the same Queen, Works (as they well deserve) with all the Professors of the Laws of high account. The Author was an ancient Apprentice of the Law, of the Middle Temple, of great Gravity, Knowledge Integrity.
The Lord Dyer’s Book, containing the fruitful and summary Collections of that Reverend Father of the Law Sir James Dyer Knight, late Chief Justice of the Court of Common Pleas, for his private use and remembrance, and never intended by him in this form to be made publique, but were as he left them imprinted after his decease in the 25th year of Queen Eliz. the very Original whereof, written with his own Hand, I have.
Lastly, Master Lambards Collection of the Office of Justices of the Peace, methodically written, was published towards the end of the Reign of Queen Elizabeth.
Concerning the antiquity of Serjeants at Law, it is evident by the Book of the Mirror of Justices, Justices, lib. 2. cap. des Loiers, which treateth of the Laws of this Realm and the Ministers thereof long before the Conquest, that Serjeants at Law were of ancient times called Narratores, Countors or Counteors, because the Count or Declaration comprehended the substance of the Original Writ, and the very Foundation of the Suit, of which part, as of the worthiest, they took their denomination, and is all one in effect, with that which in the Civil Law is called Libellus; and they lost not that Name in the Reign of King E. 1. as it apeareth by the Statute of W. 1. c. 29. ann. 3 Edw. 1. for there he is called Serjeant Countor, Serviens Narrator: And by the Statute of Articuli super Chartas, cap. 11. anno 28 E. 1. Nest my a intender que home ne poit aver counsel des countors, & des sages gents pur lour donant;53 where under this word [Countors] Serjeants at Law are included, and until this day, when any proceeds Serjeant, he doth count in some real Action at the Bar of the Court of Common Pleas; and under these words (Sages gents) are included Apprentices at Law: But since the Reign of E. 1. they have always been called Servientes ad legem54 for their good Service to the Common-wealth by their sound Advice in Law; and as in ancient time, they that preserved and kept the Peace were called Servientes pacis or ad pacem,55 so these Men are called Servientes legis or ad legem or in legibus, &c.56 And in that ancient Treatise of the Mirror of Justices ubi supra, Counteurs57 are described to be Serjeants skilful in Law of the Realm, which serve the common People to pronounce and defend their Actions in Judgment for their Fee, whose duty is there excellently described. This proveth the great Antiquity of the Serjeants at Law. Inter placita de Parliament’ tent’ apud Ashering ann. 19 Edw. 1.58 in that great Case of Thomas de Weylond it is said, Servientes in legibus & consuetudinibus Angliae experti, &c.59 and in all our Books of years and terms from the beginning there is mention made of them; as in 1 Edw. 3. 22. Serjeant le Roy, &c. and in 1 Edw.3.s. 16. there is mention made of an Apprentice; and he is called an Apprentice of the Law, of this word (apprender60 ) for that he ought to be apprise in la ley,61 and hath manifested the same by open reading upon some Statute in that Inn of Court whereof he is Fellow, and is next in degree under a Serjeant. And this Appellation is very ancient, and so is proved Rotulo Paliamenti in Crastino Epiphaniae, anno 20. Edw. 1. Rot. 5. in dorso,62 The Act saith, De Atturnatis & Apprenticiis, Dominus Rex injuxit Johanni de Mettingham & sociis suis, quod ipsi per eorum discretionem provideant & ordinent certum numerum de quolibet comitatu, &c.63 And so is farther provided by a Record, inter communia Placita tent’ in Hustingo London’ die Lunae in Festo Sancti Clementiae Papae anno Reg. Edw. 3. post Conquestum 23. viz. Die Jovis proxime ante festum Sancti Gregorii Papae anno Domini 1348. Ego Johannes Tavie Armiger lego animam meam Deo, &c. Item lego omnia tenementa mea cum omnibus pertinentiis quae habeo in parte Australi in Parochia Sancti Andreae, &c. Aliciae Uxori meae ad totum terminum vitae suae, Et quod post decessum praedictae Aliciae totutum illud Hospitium, in quo Apprenticii legis habitare solebant, per Executores meos si superstites fuerint, &c. vendatur, & quod de pecunia inde percepta unus Capellanus idoneus pro anima mea, &c. celebrand’, dummodo pecunia illa perseveraverit, inveniatur. Item lego totum illud tenementum in quo inhabito cum tribus shopis post decessum ipsius Aliciae ad fabricam Ecclesiae Sancti Andreae.64 Out of this Record I observe three things; first, for the Antiquity of Apprentices of the Law, That the House of Chancery in Holborn now called Tavies Inn, had been of ancient time, before the 23rd year of Edw. 3., (which is about 264 years past) an House of Court, wherein the Apprentices of the Law were wont to inhabite: 2. For the Antiquity and true Name of that House of Chancery, rightly called Tavies Inn. 3. That upon this Will the Case in 13 R. 2. Tit. Devise Fitzh. 27. was adjudged, That the Remainder of the House devised to the said Alice for life, belonged to the Parson of the Church of Holborn and his Sucessors. And in 39 Edw.3.f. 47. b. in a Quod ei deforceat65Ingleby, Serjeant, of Counsel with the Tenant took this Exception; This Writ (saith he) is founded upon a Record precedent, and therefore we pray, that the Demandant may put the Record (whereupon this Writ dependeth) in certain, and in Case of Attaint and scire facias66 (which depend upon Records) the Tenant shall have Oyer of the Record: Wilby and Shipwith, This was never any Exception in this place, but we have heard it oftentimes amongst the Apprentices in Houses of Court. And concerning Apprentices of Law thus much shall suffice.
The manner of the Creation of Serjeants is also most ancient; for it is by Writ, which is commonly found in very ancient Registers, and continued to this day, in this form, Rex, &c. Willielmo Herle Salutem; quia de advisamento consilii nostri ordinavimus vos ad statum & gradum Servientis ad legem, in quindena Sancti Michaelis proxim’ futur, suscipiend’, Vobis mandamus firmiter injungentes, quod vos ad statum & gradum praedictum ad diem illum in forma praedicta suscipiend’ ordinetis & praeparetis: & hoc sub poena mille librarum. Teste meipso, &c.67 wherein for the dignity of him, it is to be observed, 1. That he is called by the King by advice of his Council in that behalf, 2. By the Kings Writ, 3. The Writ is directed to him in the plural number, vobis, a special mark of Dignity: 4. That he is called ad statum & gradum Servientis ad legem:68 And in the Act of Parliament of 8 H. 6. cap. 10. of the Serjeant it is said, When he taketh the same state upon him. And in the Act of Parliament of 8 E. 4. cap. 2. al creation des Serjeants del Ley, &c.69 and Creation is ever applied to Dignity. But it is true, that the said Writ is not put into the printed Register, no more than Writs to call any to be a Baron of the Realm or of higher Dignity, for that those Writs originally are only de gratia Regis;70 and such as are published in the printed Register are originally de Jure Legis.71 Of the Solemnity of his Call, viz. his Hood, Robes, Coif, and other significant Ornaments, of the great and sumptuous Feast they make, of the Rings of Gold they give, of their Attendants, and other great and honourable Ceremonies, I purpose not at this time (being not pertinent to the Question I have in hand) to write any thing at all.
Their ancient Reputation is (I assure my self) the better continued, because they without the least alteration continue the ancient Habits and Ornaments belonging to their state and degree; for most commonly the ancient Reverence of any Profession vanisheth away with change of the ancient Habit, albeit the newer be more costly, courtly and curious. And in the Act of Parliament of 24 H. 8. cap. 13. he (having both statum & gradum72 ) hath the Precedency of divers that sit on the high Bench in a Court of great Eminency in Westminster-Hall: But seing there is no Remedy given by Law for Precedency, I (dealing only with matters in Law) mean not to meddle with it: And albeit I have learned more of the Antiquity of this State and Degree in the School of venerable
Antiquity, yet hereof thus much for this time shall suffice; Et valeant qui contabulatis mendaciis antiquitatem superstruunt.73
Of these Serjeants, as of the Seminary of Justice, are chosen Judges; for none can be a Judge, either of the Court of Kings Bench, or of the Common Pleas, or Chief Baron of the Exchequer, unless he be a Serjeant; neither can he be of either of the Serjeants Inns, unless he hath been a Serjeant at Law, for it is not called Judges or Justices Inn, but Serjeants Inn; for I have known Barons of the Exchequer (that were not of the Coif, and yet had judicial places and voices) remain in the Houses of Court whereof they were Fellows, and wore the Habit of Apprentices of the Law.
But I perswade my self you desire to read the Cases whereof I have given you a taste, & tempus est Veritatis & Justitiae sancta adire penetralia:74 And therefore here will take my leave of the good Student, to whom I wish with his increase of reading more and more a delight in this Study, an excellent mean to attain unto augmentation of venerable knowledge (which is one of the ends of my labours) not knowing what better thing to desire for him; and conclude with this Distichon and direction,
[5. ][Ed.: To God, to the Country, to you.]
[6. ][Ed.: Psal. 90. vers. 17.]
[7. ][Ed.: Truth blushes to be hidden, and therefore she fears nothing more than not being related in public, and wants to be placed in the light; and if someone hides or conceals her, it is most equitable to expose her to the eyes of all men.]
[8. ][Ed.: Only to argue until the truth is found, and when the truth is found then to give judgment.]
[9. ][Ed.: truth is lost by too much altercation.]
[10. ][Ed.: truth is (in) simple speech.]
[11. ][Ed.: A true bill, or an indictment or other presentment, asserted to by a Grand Jury.]
[12. ][Ed.: a work without precedent.]
[13. ][Ed.: the display [or maintenance] of this work is proof of charity.]
[14. ][Ed.: as a world within a world;]
[15. ][Ed.: In the year of our Lord 1349 and in the twenty-third year of King Edward III, while the great plague reigned, this cemetery was consecrated, etc., in which and within the bounds whereof were buried the bodies of more than fifty thousand dead.]
[16. ]Psal. 68.
[17. ][Ed.: out of suitability and worthiness.]
[18. ][Ed.: that men should not be deterred from pious and good works.]
[19. ][Ed.: that the mouth which speaks iniquity should be stopped.]
[20. ][Ed.: that monsters are begotten on account of the corruption of some principle.]
[21. ][Ed.: we are unaware of many things which would not be hidden if we were more familiar with reading of the past:]
[22. ]1 R. 3.c.9.
[23. ][Ed.: to twist the ingenuity of those learned in the law,]
[24. ][Ed.: (in) chief, (a freehold held directly from the crown).]
[25. ][Ed.: transcend the art of jurisprudence.]
[26. ][Ed.: An answer to defend against a claim to possess land.]
[27. ][Ed.: the crime of plunder.]
[28. ][Ed.: A quotation from Psal. 109. vers. 10.]
[29. ][Ed.: Tales of so many of those standing by; a tale being a group of men summoned by the Court to fill an under-staffed venire.]
[30. ][Ed.: But it is better to calm the troubled waves (an allusion to Virgil, Aeneid, 1. 135.)]
[31. ][Ed.: Fermors are tenants for life or for years; later associated with agricultural holdings.]
[32. ][Ed.: that a thing should rather avail than perish.]
[33. ][Ed.: for the moiety, etc. of a church.]
[34. ][Ed.: but it is held or agreed in our books or it is held or agreed in (books of) terms (i.e. the year books).]
[35. ][Ed.: the task will exceed the matter.]
[36. ][Ed.: orally (literally, “with live voice”).]
[37. ][Ed.: the living voice has I know not what efficacy,]
[38. ][Ed.: on the day.]
[39. ][Ed.: Coke refers here to the third part of the Reports.]
[40. ][Ed.: Register of the Chancery.]
[41. ][Ed.: as the workshop of justice,]
[42. ][Ed.: Writs are formulated like rules of law, which briefly and in a few words expound and explain the intention of the maker, just as rules of law briefly state the matter as it is, etc. Some are formed upon certain causes and (issued) of course, and are granted and approved by the common council of the whole realm, and these can in no way be changed without their consent and will.]
[43. ][Ed.: Mirror of Justices, written, probably, circa 1290, although its first printing was long after Coke wrote this preface, in 1642.]
[44. ][Ed.: See book I, ch. 20, § ‘Who took . . .’, and Book II, ch. 66, § ‘Also that no one . . .’.]
[45. ][Ed.: And also for this intent and purpose there was composed, by a sage and discerning man, a book called Natura Brevium (the Nature of Writs).]
[46. ][Ed.: In Praise of the Laws of England.]
[47. ][Ed.: who had liked their errors,]
[48. ][Ed.: Of Feudal Words, the Word Fee.]
[49. ][Ed.: Stephen Pasaverinus, a man of excellent skill, gave me a little English book called Littleton, in which are expounded the feudal laws of England, written so disorderly, absurdly, and inelegantly that it may easily appear to be true what Polydore Virgil wrote in his History of England, struggle with the nonsense in this book with ill will and with the inclination of challenge.]
[50. ][Ed.: they want to be doctors of law without knowing what they speak or of what they affirm,]
[51. ][Ed.: who vituperate the things of which they are ignorant.]
[52. ][Ed.: but it is more satisfactory to seek the sources than to follow the streams.]
[53. ][Ed.: It is not to be understood that one may not have counsel of counters and other learned men for their fee,]
[54. ][Ed.: serjeants at law.]
[55. ][Ed.: serjeants of the peace (or) at the peace.]
[56. ][Ed.: serjeants of the law, or at law, or in the laws, etc.]
[57. ][Ed.: counters.]
[58. ][Ed.: Amongst the pleas of the parliament held at Ashridge in the nineteenth year of Edward I.]
[59. ][Ed.: serjeants expert in the laws and customs of England, etc.]
[60. ][Ed.: to learn.]
[61. ][Ed.: learned in the law,]
[62. ][Ed.: in the roll of the parliament (held) on the morrow of the Epiphany in the twentieth year of Edward I, roll 5, on the dorse (the reverse side of the roll).]
[63. ][Ed.: Concerning attorneys and apprentices. The lord king enjoins John of Mettingham and his fellows that they should by their discretion provide and ordain a certain number from each county, etc.]
[64. ][Ed.: among the common pleas held in the husting of London on Monday, the feast of St. Clement the Pope, in the twenty-third year of King Edward the third after the conquest, in the year of our Lord 1348: I, John Tavie, esquire, bequeath my soul to God, etc. Also I bequeath all my tenements with all the appurtenances which I have in the south part of the parish of St. Andrew, etc. to Alice my wife for the whole term of her life, and that after the decease of the aforesaid Alice all that inn in which the apprentices of the law are used to dwell shall be sold by my executors, if they should survive, etc., and from the money thereby received they should find one suitable chaplain to celebrate for my soul, etc. so long as the money lasts. Also I bequeath all that tenement in which I live, with three shops, after the death of the selfsame Alice, towards the fabric of St. Andrew’s church.]
[65. ][Ed.: Writ by which a life tenant or other holders of a limited fee seeks lands lost through non-appearance at an earlier proceeding.]
[66. ][Ed.: Writ to enforce an earlier judgment or other matter of record.]
[67. ][Ed.: The king, etc. to William Herle, greeting. Because by the advice of our council we have ordained that you should take upon you the estate and degree of a serjeant at law in the quindene of Michaelmas next following, we command you with firm injunction that you order and prepare yourself to undertake the aforesaid estate and degree at that day in form aforesaid, and this under pain of one thousand pounds. Witness myself, etc.]
[68. ][Ed.: to the estate and degree of a serjeant at law:]
[69. ][Ed.: at the creation of the serjeants of the law, etc.]
[70. ][Ed.: by the king’s grace;]
[71. ][Ed.: by right of law.]
[72. ][Ed.: an estate and a degree.]
[73. ][Ed.: And away with them who strew antiquity with planks of lies.]
[74. ][Ed.: and the time has come to enter the inner sanctum of truth and justice.]
[75. ][Ed.: The manner of learning is, when you see yourself to be ignorant: Study, not only to practice; Study that you may be wise.]