Front Page Titles (by Subject) C. Little Treatise on Baile and Mainprize - Selected Writings of Sir Edward Coke, vol. II
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C. Little Treatise on Baile and Mainprize - 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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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.
Excerpts from the Institutes
The Institutes of the Lawes of England is a comprehensive and vast project which Coke apparently contemplated as a whole prior to publishing his first volume, the great Commentary upon Littleton, in 1608. While Coke’s Institutes is roughly patterned on the Justinian Institutes, its namesake, the organization of Coke’s work bears little resemblance to that of Justinian’s. The four parts of Coke’s work cover matters of property, statutes, crimes, and courts. The first two parts are in the forms of glosses on earlier texts, and the last two parts are effectively treatises inventorying the examples of their respective genre. Although Coke had apparently written components of the latter three parts while he was on the bench, having, as he says in his preface below, completed much of them by 1608, portions of theseworks seem to have been completed in the later 1610s and 1620s, after his dismissal as chief justice. Only the first part appeared during his lifetime, being published in 1608 and going rapidly through new editions. The manuscripts for the other three parts were among the papers seized by the Crown while Coke lay dying, and they were published only after the manuscripts were restored to Coke’s son by Parliament during the Commonwealth.—Ed.
[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.]