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The Preface. - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. II [1606]

Edition used:

The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 2.

Part of: Selected Writings of Sir Edward Coke, 3 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


The Preface.

Deo, Patriae, Tibi.1

Proemium.2

The name and degree of our Author.Our Author, a Gentleman of an ancient and faire descended Family de Littleton, tooke his name of a Towne so called, as that famous chiefe Justice Sir John de Markham, and divers of our Profession and others have done.

Thomas de Littleton Lord of Frankley, had issue Elizabeth his only child, and did beare the Armes of his Ancestors,His Armes.viz. Argent, a Chevron betweene three Escalop shels Sable. The bearing hereof is verie ancient and honourable, for the Senators of Rome did weare bracelets of Escalop shels about their armes, and the Knights of the Honourable Order of S. Michael in France3 do weare a coller of Gold in the forme of Escalop shels at this day. Hereof much more might be said, but it belongs unto others.

With this Elizabeth married, Thomas Westcote Esquire, the Kings servant in Court,Thomas Westcote. a Gentleman anciently descended, who bare Argent, a Bend betweene two Cotisses Sable, a Bordure engrayled Gules, Bezantie.

But she being faire and of a noble spirit, and having large possessions and inheritance from her Ancestors de Littleton, and from her mother the daughter and heire of Richard de Quatermains, and other her Ancestors, (ready meanes in time to worke her owne desire) resolved to continue the honour of her name (as did the daughter and heire of Charleton with one of the sonnes of Knightly, and divers others) and therefore prudently, whilest it was in her owne power, provided by Westcotes assent before marriage, that her issue inheritable should be called by the name of de Littleton. These two had issue foure sons, Thomas, Nicholas, Edmund and Guy, and foure daughters.

Our Author bare his Mothers surname.Thomas the eldest was our Author, who bare his fathers Christian name Thomas, and his mothers surname de Littleton, and the armes de Littleton also; and so doth his posteritie beare both name and armes to this day.

Camden4 in his Britannia saith thus; Thomas Littleton alias Westcote, the famous Lawyer5 to whose Treatise of Tenures the Students of the Common Law are no lesse beholding, than the Civilians to Justinians Institutes.

The dignitie of this faire descended Family de Littleton hath growne up together, and spread it selfe abroad by matches with many other ancient and honourable Families, to many worthy and fruitfull branches, whose posteritie flourish at this day, and quartereth many faire Coats, and6 * enjoyeth fruitfull and opulent inheritances thereby.

He was of the Inner Temple, and read learnedly upon the Statute of W.2. De donis conditionalibus,7 which we have. He was afterward called ad statum & gradum Servientis ad Legem,8 and was Steward of the Court of the Marshalsey of the Kings houshold, and for his worthinesse was made by King H.6. his Serjeant,9Kings Serjeant. and rode Justice of Assise the Northern Circuit, which places he held under King E.4. untill he in the sixth yeare of his reigne constituted him one of the Judges of the Court of Common Pleas,10Judge of the Common Pleas. and then he rode North-amptonshire Circuit. The same King in the 15. yeare of his reigne, with the Prince, and other Nobles and Gentlemen of ancient bloud, honoured him with Knighthood of the Bath.11Knight of the Bath.

He compiled this Book when he was Judge, after the fourteenth yeare of the reigne of King E.4. but the certain time we cannot yet attain unto,When hee wrote this Booke. but (as we conceive) it was not long before his death, because it wanted his last hand, for that Tenant by Elegit, Statute Merchant, & Staple, were in the table of the first printed Booke, and yet he never wrote of them.12

Our Author in composing this Work had great furtherance, in that he flourished in the time of many famous and expert Sages of the Law.The deceased of his Contemporaries. Sir Richard Newton,13 Sir John Prisot,14 Sir Robert Danby,15 Sir Thomas Brian,16 Sir Pierce Arderne,17 Sir Richard Choke,18 Walter Moyle,19 William Paston,20 Robert Danvers,21 William Ascough,22 and other Justices of the Court of Common Pleas: And of the Kings Bench, Sir John June,23 Sir John Hody,24 Sir John Fortescue,25 Sir John Markham,26 Sir Thomas Billing,27 and other excellent men flourished in his time.

And of worldly blessings I account it not the least that in the beginning of my study of the Lawes of this Realme, the Courts of Justice, both of Equitie & of Law, were furnished with men of excellent Judgement, Gravitie, and Wisdome; As in the Chancerie, Sir Nicholas Bacon, and after him Sir Thomas Bromley. In the Exchequer Chamber, the Lord Burghley, Lord high Treasurer of England, and Sir Walter Mildemay Chancellor of the Exchequer. In the Kings Bench, Sir Christopher Wray, and after him Sir John Popham. In the Common Pleas, Sir James Dyer, and after him Sir Edmund Anderson. In the Court of Exchequer, Sir Edward Saunders, after him Sir John Jefferey, and after him Sir Roger Manwood, men famous (amongst many others) in their severall places, and flourished, and were all honoured and preferred by that thrice noble and vertuous Queene Elizabeth of ever blessed memorie. Of these reverend Judges, and others their Associates, I must ingenuously confesse, that in her reigne I learned many things which in these Institutes I have published: And of this Queene I may say, that as the Rose is the queene of flowers, and smelleth more sweetly when it is pluckt from the branch: so I may say and justifie,Queene Elizabeth. that shee by just desert was the Queene of Queenes, and of Kings also, for Religion, Pietie, Magnanimitie, and Justice; who now by remembrance thereof, since Almightie God gathered her to himselfe, is of greater honour and renowne, than when she was living in this world. You cannot question what Rose I meane; for take the Red or the White, she was, not onely by royall descent, and inherent Birthright, but by Rosiall Beautie also, heire to both.

And though we wish by our labours (which are but Canabula Legis,28 the cradles of the Law) Delight and Profit to all the Students of the Law, in their beginning of their study, (to whom the first part of the Institutes is intended) yet principally to my loving friends, the Students of the honourable and worthy Societies of the Inner Temple,Inner Temple. Cliffords Inne. Lyons Inne. and Cliffords Inne, and of Lyons Inne also, where I was sometime Reader. And yet of them more particularly to such as have been of that famous University of Cambridge, Alma mea mater.29 And to my much honoured & beloved Allies & Friends ofthe Counties of Norfolke, my deare & native Country; and of Suffolke, where I passed my middle age; & of Buckinghamshire, where in my old age I live. In which Counties, we out of former Collections compiled these Institutes. But now returne we againe to our Author.

His marriage.He married with Johan one of the daughters and coheires of William Burley of Broomescroft Castle in the Countie of Salop, a Gentleman of ancient descent, and bare the Armes of his Family, Argent, a Fesse Checkie Or and Azure, upon a Lion Rampant Sable, armed Gules. And by her had three sons,His issue. Sir William, Richard the Lawyer, and Thomas.

The establishment of his posteritie by the matches of his three sonnes, with Vertue & good Bloud.In his lifetime, he, as a loving Father and a wise man, provided matches for these three sons, in vertuous and ancient Families, that is to say, for his son Sir William, Ellen Daughter and Coheire of Thomas Welsh Esquire, who by her had issue Johan his onely childe, married to Sir John Aston of Tixall Knight: And for the second wife of Sir William, Mary the Daughter of William Whittington Esquire, whose posteritie in Worcestershire flourish to this day. For Richard Littleton his second son, to whom he gave good possessions of inheritance,He gave possessions of inheritance to his younger sons, for their better advancement. Alice daughter and heire of William Winsbury of Pilleton-hall in the Countie of Stafford, Esquire, whose posteritie prosper in Staffordshire to this day. And for Thomas his third son, to whom hee gave good possessions of inheritance, Anne daughter and heire of John Botreaux Esquire, whose posteritie in Shropshire continue prosperously to this day. Thus advanced he his posteritie, and his posteritie by imitation of his Vertues have honoured him.

His last Will.He made his last Will & Testament the 22. day of August in the 21. yeare of the reigne of King Edward the fourth, whereof he made his three sons, a Parson,His Executors. a Vicar, & a Servant of his Executors, & constituted supervisor thereof, his true & faithfull friend John Alcock Doctor of Law, of the famous University of Cambridge,His Superviser. then Bishop of Worcester, a man of singular Pietie, Devotion, Chastitie, Temperance, & Holinesse of life, who amongst other of his pious & charitable works, founded Jesus College in Cambridge, a fit and fast friend to our honourable & vertuous Judge.

His age.He left this life in his great & good age, on the 23. day of the month of August, in the said 21. yeare of the reigne of King Edward the fourth:His departure. For it is observed for a speciall blessing of Almighty God, that few or none of that profession die Intestatus & improles30 without Will & without Child; which last Will was proved the 8. of November following in the Prerogative Court of Canterbury, for that hee had Bona notabilia31 in divers Diocesses. But yet our Author liveth still in ore omnium juris prudentium.32

Littleton is named in 1.H.7. and in 21.H.7.33 Some do hold, that it is no error either in the Reporter or Printer; but that it was Richard the son of our Author, who in those daies professed the Law, and had read upon the statute of West. 2.34quia multaper malitiam,*35 ,36 unto whom his Father dedicated his Book; And this Richard died at Pilleton hall in Staffordsh. in 9.H.8.

His Sepulchre.The body of our Author is honourably interred in the Cathedrall Church of Worcester, under a faire Tomb of Marble, with his statue of portraiture upon it, together with his own match, & the matches of some of his Ancestors, and with a memoriall of his principall titles, and out of the mouth of his statue proceedeth this praier, Fili Dei miserere mei,37 which he himselfe caused to be made and finished in his life time, & remaineth to this day. His wife Johan Lady Littleton survived him, and left a great inheritance of her Father, and Ellen her Mother, daughter & heire of John Grendon Esquire, and other her Ancestors, to Sir William Littleton her son.

This Work was not published in print, either by our Author himselfe, or Richard his son, or any other, untill after the deceases both of our Author, and of Richard his son.When this Worke was published. For I finde it not cited in any Booke or Report, before Sir Anthony Fitzherbert cited him in his Natura Brevium;38 who published that Booke of his Natura Brevium in 26.H.8.39 Which Work of our Author, in respect of the excellencie thereof, by all probabilitie should have beene cited in the Reports of the reignes of E.5. R.3. H.7. or H.8. or by S. Jermyn in his Booke of the Doctor and Student, which he published in the three and twentieth yeare of H.8. if in those dayes our Authors Booke had beene printed.Nota. And yet you shall observe, that Time doth ever give greater authoritie to Works and Writings that are of great and profound learning, than at the first they had.When this Work was first imprinted. The first impression that I finde of our Authors Booke was at Roan in France by William le Tailier (for that it was written in French) Ad instantiam,40 Richardi Pinson, at the instance of Richard Pinson the Printer of King H.8. before the said Book of Natura Brevium was published; and therefore upon these and other things that we have seene, wee are of opinion, that it was first printed about the foure and twentieth yeare of the reigne of King H.8. since which time hee hath beene commonly cited, and (as he deserves) more and more highly esteemed.

His Picture.He that is desirous to see his picture, may in the Churches of Frankley and Hales Owen see the grave and reverend countenance of our Author, the outward man, but he hath left this Booke, as a figure of that higher & nobler part,The figure of his Minde. that is, of the excellent and rare endowments of his minde, especially in the profound knowledge of the fundamentall Lawes of this Realme. He that diligently reads this his excellent Work, shall behold the childe and figure of his minde, which the more often he beholds in the visiall line, and well observes him, the more shall he justly admire the judgement of our Author, and increase his owne. This only is desired, that he had written of other parts of the Law, and specially of the rules of good pleading (the heart-string of the Common Law) wherein hee excelled: for of him might the saying of our English Poet be verified;

  • Thereto he could indite and maken a thing,
  • There was no Wight could pinch at his writing.41

Good pleading.So farre from exception, as none could pinch at it. This skill of good pleading he highly in this Work commended to his sonne, and under his name to all other Students sons of his Law. He was learned also in that Art, which is so necessarie to a compleat Lawyer,Logicke. I meane Logick, as you shall perceive by reading of these Institutes, wherein are observed his Syllogismes, Inductions, and other arguments; and his Definitions, Descriptions, Divisions, Etymologies, Derivations, Significations, and the like. Certaine it is, that when a great learned man (who is long in making) dieth, much learning dieth with him.42

The commendation of his Worke.That which we have formerly written, that this Book is the ornament of the Common Law, and the most perfect and absolute Work that ever was written in any humane Science; and in another place,43 that which I affirmed and tooke upon me to maintaine against all opposites whatsoever, that it is a Work of as absolute perfection in his kinde, and as free from errour as any book that I have knowne to be written of any humane learning, shall to the diligent and observing Reader of these Institutes be made manifest, and we by them (which is but a Commentarie upon him) be deemed to have fully satisfied that, which we in former times have so confidently affirmed and assumed. His greatest commendation, because it is of greatest profit to us, is, that by this excellent Work, which he had studiously learned of others, he faithfully taught all the professors of the Law in succeeding ages. The victorie is not great to overthrow his opposites, for there was never any learned man in the Law, that understood our Author, but concurred with me in his commendation: Habae enim justam venerationem quicquid excellit;44 For whatsoever excelleth hath just honour due to it. Such as in words have endevoured to offer him disgrace, never understood him, and therefore we leave them in their ignorance, and wish that by these our Labors they may know the truth, and be converted. But herein we will proceed no further: For, Stultum est absurdas opiniones accuratius refellere,45 It is meere folly to confute absurd opinions with too much curiositie.

And albeit our Author in his three Books cites not many authorities, yet he holdeth no opinion in any of them, but is proved and approved by these two faithfull witnesses in matter of Law, Authoritie, and Reason. Certaine it is, when hee raiseth any question, and sheweth the reason on both sides, the latter opinion is his owne, and is consonant to Law. We have knowne many of his cases drawne in question,Nota. but never could find any judgement given against any of them, which we cannot affirme of any other Booke or Edition of our Law. In the reigne of our late Soveraigne Lord King James of famous and ever blessed memorie, it came in question upon a demurrer in Law,46 whether the release to one trespasser should be available or no to his companion, Sir Henry Hobart that honourable Judge and great Sage of the Law, and those reverend and learned Judges, Warburton, Winch, and Nichols his companions, gave judgement according to the opinion of our Author, and openly said, That they owed so great reverence to Littleton, as they would not have his Case disputed or questioned: and the like you shall finde in this part of the Institutes. Thus much (though not so much as his due) have we spoken of him, both to set out his life, because he is our Author, and for the imitation of him by others of our Profession.

What is endevoured by these Institutes.We have in these Institutes endevoured to open the true sense of every of his particular Cases, and the extent of everie of the same either in expresse words, or by implication, and where any of them are altered by any latter Act of Parliament, to observe the same, and wherein the alteration consisteth. Certaine it is, that there is never a period, nor (for the most part) a word, nor an &c. but affordeth excellent matter of learning. But the module of a Preface cannot expresse the observations that are made in this Worke, of the deepe Judgement and notable Invention of our Author. We have by comparison of the late and moderne impressions with the originall print, vindicated our Author from two injuries; First, from divers corruptions in the late and moderne prints, and restored our Author to his owne: Secondly, from all additions and incroachments upon him, that nothing might appeare in his worke but his owne.

The benefit of these Institutes.Our hope is, that the young Student, who heretofore meeting at the first, and wrastling with as difficult termes and matter, as in many yeares after, was at the first discouraged, as many have beene, may by reading these Institutes, have the difficultie and darknesse both of the Matter, and of the Termes & words of Art in the beginnings of his study facilitated & explained unto him, to the end he may proceed in his study cheerfully, and with delight; and therefore I have termed them Institutes,Wherefore called Institutes. because my desire is, they should institute and instruct the studious, and guide him in a ready way to the knowledge of the nationall Lawes of England.

Wherefore published in English.This part we have (and not without president) published in English, for that they are an Introduction to the knowledge of the nationall lawes of the Realme; a work necessary, and yet heretofore not undertaken by any, albeit in all other professions there are the like. Wee have left our Author to speake his owne language, & have translated him into English, to the end that any of the Nobilitie, or Gentrie of this Realme, or of any other estate, or profession whatsoever, that will be pleased to read him & these Institutes, mayunderstand the language wherein they are written.

I cannot conjecture that the generall communicating of these Lawes in the English tongue can worke any inconvenience, but introduce great profit, seeing that Ignorantia Juris non excusat, Ignorance of the Law excuseth not.Regula. And herein I am justified by the wisdome of a Parliament; the words whereof be,47That the Lawes and Customes of this Realme the rather should be reasonably perceived and knowne, and better understood by the tongue used in this Realme, and by so much everie man might the better governe himselfe without offending of the Law, and the better keepe, save, and defend his heritage and possessions. And in divers Regions and Countries where the King, the Nobles, and other of the said Realme have beene, good governance and full right is done to everie man, because that the Lawes and Customes be learned and used in the Tongue of the Countrey:Regula. as more at large by the said Act, and the purview thereofmayappeare: Et neminem oportet esse sapientiorem Legibus,48 No man ought to be wiser than the Law.

And true it is that our Books of Reports and Statutes, in ancient times were written in such French as in those times was commonly spoken and written by the French themselves. But this kind of French that our Author hath used is most commonly written and read,Our Authors kinde of French. and verie rarely spoken, and therefore cannot be either pure, or well pronounced. Yet the change thereof (having been so long accustomed) should be without any profit, but not without great danger and difficultie: For so many ancient Termes and words drawne from that legall French, are growne to be Vocabula artis, Vocables of Art, so apt & significant to expresse the true sense of the Lawes, & are so woven into the lawes themselves,49 as it is in a manner impossible to change them, neither ought legall termes to be changed.

In Schoole Divinitie, and amongst the Glossographers and Interpreters of the Civill and Canon Lawes, in Logick and in other liberall Sciences, you shall meet with a whole Army of words, which cannot defend themselves in Bello Grammaticali, in the Grammaticall Warre, and yet are more significant, compendious, and effectuall to expresse the true sense of the matter, than if they were expressed in pure Latine.

Wherefore called the first part.This Worke wee have called The first part of the Institutes, for two causes: First, for that our Author is the first booke that our Student taketh in hand. Secondly, for that there are some other parts of Institutes not yet published, (viz.) The second part being a Commentarie upon the Statute of Magna Charta, Westm. I. and other old Statutes. The third part treateth of Criminall causes and Pleas of the Crowne: which three parts we have by the goodnesse of Almightie God already finished. The fourth part wee have purposed to be of the Jurisdiction of Courts; but hereof we have onely collected some materialls towards the raising of so great and honourable a Building. Wee have by the goodnesse and assistance of Almightie God brought this twelfth Worke to an end: In the eleven Bookes of our Reports wee have related the opinions and judgements of others; but herein we have set downe our owne.

Before I entred into any of these parts of our Institutes, I acknowledging mine owne weaknesse and want of judgement to undertake so great Workes, directed my humble Suit and Prayer to the Author of all Goodnesse and Wisdome, out of the Booke of Wisdome;50Pater & Deus misericordiae, da mihi fedium tuarum assistriceur sapientiam, mitte eam de Coelis sanctis tuis & à sede magnitudinis tuae, ut mecum sit & mecum laboret, ut sciam quid acceptum sit apud te; Oh Father and God of mercie, give me wisdome, the Assistant of thy seats; Oh, send her out of thy holy Heavens, and from the seat of thy Greatnesse, that shee may be present with mee and labour with mee, that I may know what is pleasing unto thee, Amen.

Our Author hath divided his whole Worke into three Bookes: In his first he hath divided Estates in Lands and Tenements, in this manner; For; Res per divisionem melius aperiuntur.51 ,52

Our Author dealt onely with the Estates and termes abovesaid; Somewhat Wee shall speake of Estates by force of certaine Statutes, as of Statute Merchant, Statute Staple, and Elegit,53 (whereof our Author intended to have written) and likewise to Executors to whom lands are devised for payment of debts, and the like.

I shall desire,54 that the learned Reader will not conceive any opinionagainst any part of this painfull and large Volume, untill hee shall have advisedly read over the whole, and diligently searched out and well considered of the severall Authorities, Proofes, and Reasons which wee have cited and set downe for warrant and confirmation of our opinions thorowout this whole worke.

lf0462-02_figure_002 lf0462-02_figure_003

Mine advice to the Student is, That before hee read any part of our Commentaries upon any Section, that first he read againe and againe our Author himselfe in that Section, and doe his best endevours, first of himselfe, and then by conference with others, (which is the life of Study) to understand it, and then to read our Commentarie thereupon, and no more at any one time, than he is able with delight to beare away, and after to meditate thereon, which is the life of reading. But of this Argument we have for the better direction of our Student in his Study, spoken in our Epistle to our first Booke of Reports.

And albeit the Reader shall not at any one day (doe what he can) reach to the meaning of our Author, or of our Commentaries, yet let him no way discourage himselfe, but proceed; for on some other day, in some other place, that doubt will be cleared. Our Labours herein are drawne out to this great Volume, for that our Author is twice repeated, once in French, and againe in English.

[1. ][Ed.: To God, to the country, to you.]

[2. ][Ed.: The Preface.]

[3. ]Instituted by Lewis the eleventh, King of France, 9.E.4.

[4. ]Camden.

[5. ]Psal 92.II. The just shall flourish like the Palme tree, and spread abroad like the Cedars in Libanus.

[6. ]*The best kind of quartering of Armes.

[7. ][Ed.: An English statute that converted fee-simple conditional estates to fee-tails, rendering them inalienable.]

[8. ][Ed.: of the office and rank of Serjeant at law,]

[9. ]Rot. Pat. 33. H. 6. part 15 M. 16. Mich. 34. H.6. fol. 3. a.

[10. ]Rot. Pat. 6. E. 4. Parte 1. M.I5.

[11. ]15. E. 4.

[12. ]14. E. 4. tit. Garranty 5. Litt. Sect. 692. 729. & 730.

[13. ]He died 27. H. 6.

[14. ]He died 39. H. 6.

[15. ]Died 11. E. 4.

[16. ]Died 16. H. 7.

[17. ]Died 7. E. 4.

[18. ]Over lived our Author.

[19. ]Survived him also.

[20. ]Died 23. H. 6.

[21. ]Survived our Author.

[22. ]Died 33. H. 61.

[23. ]Died 18. H. 6.

[24. ]Died 20. H. 6.

[25. ]Removed 1. E. 4.

[26. ]Removed 8. E. 4.

[27. ]Died 21. E. 4.

[28. ][Ed.: the cradles of the law.]

[29. ][Ed.: My alma mater.]

[30. ][Ed.: intestate and without issue.]

[31. ][Ed.: Notable goods; property worthy of notice, or of sufficient value to be accounted for.]

[32. ][Ed.: in the mouth of all lawyers.]

[33. ]1. H. 7. fol. 27. 21. H. 7. fol. 32.h.

[34. ]H. 2. 2. cap.12.

[35. ][Ed.: Because many through malice . . . (the opening words of the Statute of Westminster II, c. 12).]

[36. ]See Littleton Sect. 749.

[37. ][Ed.: Son of God, have mercy on me.]

[38. ][Ed.: The Nature of Writs.]

[39. ]F.N.B. 212.c.

[40. ][Ed.: at the instance of.]

[41. ]Chaucer.

[42. ]Seneca.

[43. ]Lib. 2. fo. 67. Epist. 10. li. 10.

[44. ]Cicero [Ed.: for whatsoever excels has a just veneration.]

[45. ]Aristotle. [Ed.: It is foolish to refute absurd opinions with minute care.]

[46. ]Mich. 13. Jac. in Communi Banc. inter Cock & Ilnours.

[47. ]36. E. 3. cap. 25.

[48. ][Ed.: No one ought to be wiser than the laws.]

[49. ]36. E.3. ubi supr.

[50. ]Lib. Sap. ca. 9. Vers. 4.10.

[51. ]Bracton.

[52. ][Ed.: Things are opened better by division.]

[53. ][Ed.: “He has Chosen”; a writ of execution for a debt.]

[54. ]Regula. Incivile est, parte una perspecta, totare non cognita, de ea judicare. [Ed.: It is improper to scrutinize one part without knowing the whole and from that to reach a conclusion.]