Front Page Titles (by Subject) III: Excerpts from the Small Treatises - Selected Writings of Sir Edward Coke, vol. II
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III: Excerpts from the Small Treatises - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. II 
The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 2.
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Excerpts from the Small Treatises
These books were of neither the influence nor the breadth of the Institutes. The only one to be published in Coke’s life was the Entries, a pleading manual. The others, dealing with specific problems of property law, were published from his manuscripts posthumously, separately and also in a single binding of Law Tracts, in 1764.—Ed.
A. Book of Entries
The Book of Entries was first published in 1614 under the title A Booke of Entries. Containing Perfect and Approved Presidents of Counts, Declarations, Informations, Pleints. It is the only treatise, other than the First Part of the Institutes, that Coke published during his lifetime. It was the result of Coke’s careful study and use of pleading, which exercised a strong influence on the outcome of law cases. The Entries enjoyed some success but later became only one among several competing manuals containing pleadings from Coke’s Reports.—Ed.
Epigrams from the Title Page:
Cicero Rhetor. Lib. 4.
Rerum omnium imperiti, qui unius cujusque; rei de rebus ante gestis exampla petere non possunt, hi per imprudentiam facillime deducuntur in fraudem: at hi qui sciunt quid aliis acciderit, facile ex eorum eventibus suis possunt rationibus providere.1
Vir bonus est quis?
Qui Consulta patrum, qui Leges juraque servat.2
Periculosum existimo quod doctorum virorum non comprobatur exemplo.3
Deo duce ἑυρηκα.4
The Preface of Sr. Edward Coke, Knight Lord Chiefe Justice of England of Pleas Before the King Himselfe to be Holden Assigned, and One of the Lords of His Majesties Most Honorable Privie Councell.
Deo, Patriæ, Tibi.5
He that duly considereth (learned Reader) the Theoricke and Practique parts of the laws of England, that is, the Knowledge in universalities, and the Practise in particulars, shall find that most aptly to be applied to this profession that long since was spoken of another, Ars longa, vita brevis, studium difficile, occasio præceps, experimentum periculosum.6 A learned man in the lawes of this realme is long in making, the student thereof, having sedentariam vitam7 is not commonly long lived, the study abstruse and difficult, the occasion sodaine, the practise dangerous. Many have written of the former part, onely one of the later, unlesse you will account that auncient little treatise called Les novel Tales, or Novæ narrationes, to be one; and yet the Active part is as necessarie as the Speculative, for usus & experientia dominantur in artibus;8 and certain it is, that no art can be perfectly attained unto by reading without use and exercise. What auayleth the Serjeant or Apprentice the general knowledge of the laws, if he know not withall the forme and order of legall proceedings in particular cases, and how to plead and handle the same soundly, and most for his Clients advauntage? Good pleading hath three excellent qualities, that is to say (as Littleton saith) it is Honorable, Laudable, and Profitable: Honorable, for he cannot be a good pleader, but he must be of excellencie in judgement, Honor est prœmium excellentiae:9 Laudable for the fame and estimation of the professor, Laus est sermo elucidans magnitudinemscientiæ:10 And profitable for three respects: first, for that good pleading is Lapis lidius11 the touchstone of the true sence of the law: secondly, to the Client whose good cause is often lost or long delayed for want of good pleading, for herein is occasio praeceps & experimentum periculosum12 lastly, to the professor himselfe, who being for skill therein exalted above others, tanquam inter viburna Cupressus13 it cannot be unto him but exceeding profitable. It is true, that of ancient time Judges gave no way to nice and overcurious exceptions to formes of counts or pleadings; nay before the raigne of king Edw. 3. they sometimes gave too much way to the neglect of legall formes in pleading, and that made Sir William de Thirning chiefe Justice of the Court of Common Pleas to say in 12. Hen. 4. 19. Que devant le raigne del Roy Edw. 3. le manner de pleder no fuit forsque feeble, eyant regard que fuit unques puis in temps de cel Roy.14 And I am of opinion, that the neglect of essentiall formes would bring in ignorance and confusion: yet doe I well allow, that men should not be fined pro non pulchre’ placitando,15 or as some Records say pro stultiloquio,16 because the same have beene forbidden by acts of Parliament, videlicet Marlebridge cap.11. Westm. 1. cap. 8. and 1. Edw. 3. cap. 8. Vide Registr’ 179. 13. Edw. 1. tit Attachment 8. & F.N.B. 270. Inter placita de Banco, termin’ Mich. ann. 5. Hen. 3. incipiente Rot’ 10. Dors. Essex. Radulphus de Bardfield qui narravit pro germano filio Turoldi, in misericordia pro stultiloquio:17 which and many other Records doe prove, that the fine in those dayes was set vpon the Councellor and not upon the Client; for it was not holden just that the Client should be fined for the Councellors fault, and that had beene to have added affliction to the afflicted, videlicet18 to fine the Client for erronious pleading, who therefore lost his cause. And Sir Robert de Wilby in Anno 24. Edw. 3. fol. 48. speaking to the Councellors at the barre, Ieo ay vieu le temps, que si vous vibes plead un erronious plea, que vous alastes al prison.19 And even as he that hath a long journey upon weightie affaires that require present dispatch, especially si via fit salebrosa, saxis aspera, sentibus obducta, gurgitibus intercisa, torrentibus rapida &c.20 would be glad of a sure guide that by approved experience could lead him in the right way, both to avoyddangers, and to come with speed to his journeys end; So the professor of the Law (that is presently to plead his Clients cause, which many times is full of obscuritie and difficultie, in the pleading whereof if there be found errour, though the right be good, the cause quaileth) will (I persuade my selfe) be glad of this Booke, contayning many excellent Presidents of Counts, Pleadings, and all other matters fitting almost everie particular Case that can fall out; which being upon mature deliberation sifted, examined, and approved in the highest Courts of Justice, videlicet the Chauncerie, Kings Bench, Common Pleas, and Exchequer, may serve for well experienced guides in his Clients cause, to conduct him in such a way as his Client may avoid daunger, and attaine to his desired end.
What reverence hath beene given by the most reverend Sages of the law to judiciall Presidents, appeareth (amongst many others) in Ellice Case in 39. H. 6. fol. 30. where the opinion of learned Prisot chiefe Justice of the Court of Common Pleas, and other Justices, was, That in a writ of Mesne, quele pl’ covient de fine force de surmitter le tenure inter le mesne & Seignior paramout en son Count, ou auterment il ne serra bone: & puis quant Prisot avoit demaund de les prothonotaries le forme de les novel Tales, & ensement que ils avoyent view que les Tales ne fesoyent mention de nultenure in tiel case, & que cest forme avoiet touts foits este use, ils ne voillont chaunger cest use, nient obstant que lour opinion fuit al contrarie, Quia non valet ratio contra experimentum.21
No man can be a compleat Lawyer by universalitie of knowledge without experience in particular cases, nor by bare experience without universalitie of knowledge; he must be both speculative & active, for the science of the laws, I assure you, must joyne hands with experience. Experientia (saith the great Philosopher) est cognitio singularium, ars vero universalium.22 ,23 The learned Sages of the law doe found their judgement upon legall reason and judiciall President; the one they find in our bookes of yeres and termes, the other out of records formerly examined and allowed: These two, Reason and President are clarissima mundi lumina,24 whereby all the wise men of the world are directed: But in these dayes of many it may be justly said, Quod statim sapiunt, statim sciunt omnia, neminem verentur, imitantur neminem, ipsi sibi exempla sunt.25 But it is safe for the Client and for the Councellor also (if he respect his conscience) to follow Presidents formerly approved and allowed, and not to trust to any new frame carved out of his owne invention, for Nihil simul inventum & perfectum est.26
The former Booke of Entries being published at that time when the Authour was beyond the Seas (as in his Preface he confesseth) could not so exactly and perfectly be done (though it be, for many Presidents therein, verie profitable and of good use) as if he had bin at the fountaines head it selfe, and might have had conference with the grave Judges, and well experiensed Prothonotaries, Officers, and Clarkes.
In this Booke six things are worthie of observation. First, that none of the Presidents herein have bin by any published heretofore. 2. That they are of greater authoritie and use, and fitter for the moderne practise of the law, for that they be for the most part of later times, and principally, of the raigne of our late Soveraigne Ladie of ever blessed memorie Queene Elizabeth, and of his most excellent Majestie the King that now is. 3. That for thy further satisfaction (learned Reader) everie President hath a true reference to the Court, yeare, terme, number-roll, and record, where the President it selfe is to be found. 4. In this worke are contayned the records of divers of the cases which in the nine former parts of my Commentaries I have published, with a certaine reference to the report it selfe. 5. Here shall you find Presidents adjudged upon Demurrer, wherein lye hidden many matters of Law and excellent points of learning, which being never reported, here is for thy better light (studious Reader) a short touch given of the reasons and causes whereupon they were adjuged. Lastly, there is an exact and plaine table of Titles, without perplexed and intricat divsions or subdivisions or tedious referments, everie mans owne method and observation in reading, being ever the best and readiest of all others for himselfe. Read these Presidents (learned Reader) and reape in this faire and large field, the delectable and profitable fruits of reverend Experience and Knowledge; which you may doe with greater ease, for that more easily shall you learne by patterne than by precept: and they have beene so painfully and diligently weeded, as it cannot be sayd, that in this fruitfull field,
Infœlix lolium aut steriles dominantur avena.27
Your true and faithfull friend
B. The Compleat Copyholder
The Compleat Copyholder, first published in 1630, is a textbook posthumously built from Coke’s manuscript notes on the ancient estate, the copyhold. Copyholds were one of the most basic tenancies, usually held by villeins, small tenant farmers on manors, or great estates, who paid in rents in money or in kind to their landlords. Their interests were not conveyed by indenture, deed, or by the other grants that specified their protections in their lands. Rather they were written on a list, literally, copied into a court roll. The rights and duties of copyholders were limited but controlled primarily by the custom specific to each manor. Coke was among the first to attempt to state the rights and powers essential to all copyholds, and his cases, treatment of copyhold in the First Institute, and treatment in this volume allowed considerably greater protection for the working agricultural poor than had been given before.—Ed.
| Customes are defined to be a Law, or Right not written, which being established by long use, and the consent of our Ancestors, hath been, and is daily practised.
2. To prescribe generally, not tying his Prescription to place, or person, as where a Chiefe Justice prescribeth, that it hath been | used, that every Chiefe Justice may grant Offices; or where a Sergeant prescribeth, Quod talis habetur consuetudo,14 that Sergeants ought to be impleaded by originall Writ, and not by Bill.
3. To Prescribe in a place certaine.
4. To Prescribe in the place of another.
The first sort of these Prescriptions, a Copyholder cannot use, in regard of the imbecillity of his estate; for no man can Prescribe in that manner, but onely Tenants in Fee simple, at the Common Law.
The second sort of these may be used sometimes by Copyholders in the pleading of a generall Custome, but in alledging of a particular Custome, a Copyholder is driven to one of the last, and as occasion serveth, he useth sometimes the one, sometimes the other. If he be to claime Common, or other profit in the soyle of the Lord, then he cannot Prescribe in the name of the Lord, for the Lord cannot Prescribe to have Common or other profit in his owne soyle; but then the Copyholder must of necessitie Prescribe in a place certaine, and alleadge, that within such a Manor, there is such a Custome, that all the Tenants within that Manor, have used to have Common in such a place, parcell of | the Manor: but if he be to claime common, or other profit in the soyle of a stranger, then he ought to prescribe in the name of his Lord, saying, that the Lord of the Manor, and all his Ancestors, and all those whose estate he hath, were wont to have a Common in such a place for himselfe, and his Tenants at will, &c.
C. Little Treatise on Baile and Mainprize
The Little Treatise, first published in 1635 shortly after Coke’s death, augments Coke’s discussions of criminal procedure in the Second and Third Parts of the Institutes. Bail and mainprize were the two methods by which a sheriff or other officer of a court could be required to set free the person detained. Bail was used primarily for a person arrested or imprisoned on suspicion of a crime, but mainprize could be used in other situations, and it required the delivery of the person detained into the custody of someone who promised to deliver the detainee for a later hearing.—Ed.
The Conclusion with Advertisment.
The end and scope of this little Treatise is, (under correction of those of better judgement) to set forth what the Law of the Realme doth require touching Baile and Maineprize: A necessary thing (in mine opinion) for such as be Justices of the peace, to be knowne: for as he that standeth upon plaine & sure ground, although he should be borne of rage and tempest to the ground, yet might hee without danger rise of himselfe againe: so hee that hath the administration of Justice, and in all his occasions is guided and directed by the rule of the law, neither abusing his authority, nor exceeding his Commission, standeth on a sure ground, which will beare him up at all seasons: Sapientis est cogitare (saith Cicero) tantum esse permissum quantum commissum & creditum.1 And good was the Counsell (as those that follow it finde) whosoever gave it, (videlicet )2 exceede not the Commission: And albeit it is truely said, that Judicium est legibus & non exemplis:3 And as the Logician saith, Exempla demonstrant, non probant;4 yet undoubtedly it is a great contentment and satisfaction to an honest minde and a good conscience, especially in cases that concerne the life and liberty of a man, to follow the president of grave and reverend men: how beit for as much as all good Lawes are instituted, and made for the repelling of those evils that most commonly happen: For ad ea quae frequentius accidunt jura ad prantur,5 and principally doe respect the generall peace and profit of the people: and therefore we use to say, that a mischiefe is rather to be suffered then an inconvenience: That is to say, that a private person should be punished or damnified by the rigour of the Law, then a general rule of the Law should be broken to the generall trouble and prejudice of many. It is therefore very necessary, that the Law and discretion should bee Concomitant, and the one to be an accident inseparable to the other, so as neither Law without discretion, least it should incline to rigour, nor discretion without Law, least confusion should follow, should bee put in use: my meaning hereby, is not to allow of every mans discretion that sitteth on the seate of Justice: (for that would bring forth a monstrous confusion) But I meane that discretion, that ariseth upon the right discerning, and due consideration of the true and necessary circumstances of the matter: and as wee commonly use to say, that Common Law is nothing else but common reason; and yet we meane thereby nothing lesse, then that common reason where-with a man is naturally endued, but that perfection of reason which is gotten by long and continuall study: so in associating discretion so neare to Law, it is not meant to preferre it to that society: each mans discretion, which commonly rather deserveth the name of affection and selfe-will, then of discretion indeed: but that discretion onely we allow of in this place, that either grave and reverend men have used in such cases before, or rise of the circumstances of the matter: (as is aforesaid) As for example, being not also impertinent to the matter of our Treatise, if it were a question, whether in an appeale of Maine, the defendant were to bee let to Baile, or Maineprize, or no. It is necessary to be examined, whether the manner of the Maine were horrible or hainous: for the defendant may be denied Baile and Maineprize: whether the same were done upon a suddaine affray, or of the plaintiffes assault, or against the intent of the defendant, &c. For the defendant may bee let to baile: and this I take to be a lawfull discretion, for to that end is the booke, reason of the booke in 6. H. 7. fo. 2. where in an appeale of Maine, the Justices of the Kings Bench denied the defendant to bee bailed; for that upontheexamination of the matter, it appeared to be most cruel and horrible, and therefore inrespect of the abhominable hainousnes of the same, the Justices would not suffer the defendant to be bailed: and with this agreeth the opinion of Bract. in the 2. treatise of his 3. booke ca. 8. Appellati vero de morte hominis, & de pace & plagis periculosis saltem capiantur, et in prisonam detru antur, et ibi custodiantur, donec per Dominum Regem per Pleg’ dimittantur, vel per Judicem deliberantur, &c.6 whereby I note that he saith, plag’ periculosis,7 insinuating a difference inter plagas periculosas, & minus periculosas,8 in that he saith, Donec per Dominum Regem per pleg’ demittantur,9 it is to bee understood, untill by that Court the offence be determined and judged, they bee let to Baile, and this particular may suffice to the resolution of the generall.
To conclude, the Authour of all wisedome and true knowledge, thought it requisite, that those that were Judges of the earth, should bee both wise and learned, whom I beseech God to blesse with his true knowledge and wisedome.
[1. ][Ed.: People who are inexperienced in everything, and are unable to seek out precedents of what has been done before in every case, are most easily deceived through imprudence; but those who know what has happened to others may easily from their fortunes prepare themselves for their own affairs. (Cicero, Rhetorica ad Herennium, iv. 13, 30).]
[2. ][Ed.: Who is a good man? It is he who preserves the decisions of our forefathers, the statutes and laws.]
[3. ][Ed.: I consider anything dangerous which is not proved by the example of learned men.]
[4. ][Ed.: Led by God, I have found it (eureka).]
[5. ][Ed.: To God, to the country, to you.]
[6. ][Ed.: Professional skill takes a long time, whereas life is short, study difficult, favourable opportunity slippery, experiment dangerous.]
[7. ][Ed.: a sedentary life.]
[8. ][Ed.: In acquiring professional skill, use and experience are the rule.]
[9. ][Ed.: Honour is the prize of excellence.]
[10. ][Ed.: A discourse explaining the greatness of knowledge is a matter for praise.]
[11. ][Ed.: The touchstone.]
[12. ][Ed.: opportunity slippery and experiment dangerous.]
[13. ][Ed.: as great as a cypress among the brushwood.]
[14. ][Ed.: That before the reign of King Edward III the manner of pleading was but weak, having regard to the fact that it never was afterwards in the time of that king.]
[15. ][Ed.: for not pleading finely.]
[16. ][Ed.: for miskenning (speaking badly).]
[17. ][Ed.: Among the pleas of the Bench for Michaelmas term beginning in the fifth year of Henry III, on the dorse of roll 10: Essex. Ralph of Bardfield who counts on behalf of the natural son of Turold, in mercy for miskenning.]
[18. ][Ed.: that is to say.]
[19. ][Ed.: I have seen the time when, if you had pleaded an erroneous plea, you would have gone to prison.]
[20. ][Ed.: if the way is made full of roughness, uneven with rocks, overgrown with thorns, cut through by abysses, rushing with torrents, etc.]
[21. ][Ed.: that the plaintiff must of necessity set out in his count the tenure between the mesne and the lord paramount, or else it is not good: but later, when Prysot (C.J.) had asked the prothonotaries the form in the Novae Narrationes, and (they said) they had seen that the Narrationes did not mention any tenure in such cases, and that this form had always been used, they (i.e. the judges) would not change that usage, even though their opinion was to the contrary.]
[22. ][Ed.: Experience is knowledge of particular things, nay rather the art of general things.]
[23. ][Ed.: Aristotle’s Metaphysics, book 1.]
[24. ][Ed.: the clearest lights of the world,]
[25. ][Ed.: That they are wise straight away, know everything instantly, respect no one, copy no one, set their own precedents.]
[26. ][Ed.: Nothing is invented and perfected at the same time.]
[27. ][Ed.: Barren tares or rather wild oats have dominion.]
[14. ][Ed.: that there is such a custom (as follows).]
[1. ][Ed.: A wise man bears in mind that only so much is permitted as is committed and entrusted to him.]
[2. ][Ed.: that is to say.]
[3. ][Ed.: One ought to judge according to the laws and not according to precedents:]
[4. ][Ed.: Precedents illustrate but do not prove;]
[5. ][Ed.: laws are adapted to those things which occur frequently,]
[6. ][Ed.: But only those who are accused of homicide, and breach of the peace, and giving dangerous wounds, shall be taken and put in prison, and detained there, until they are released by the lord king on bail (lit. by pledge) or delivered by a judge, etc.]
[7. ][Ed.: dangerous wounds,]
[8. ][Ed.: between dangerous and non-dangerous wounds,]
[9. ][Ed.: Until they are released by the lord king on bail.]