- II: Coke’s Speech and Charge At the Norwich Assizes
- (preface, Written By Robert Prickett)
- The Lord Coke, the Preface to His Charge Given At the Assises Houlden In Norwich, the Fourth of August, 1606.
- ¶ Here Followeth the Words of His Charge In Order.
- III: Excerpts From the Small Treatises
- A. Book of Entries
- 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.
- B. the Compleat Copyholder
- Sec. XXXIII.
- C. Little Treatise On Baile and Mainprize
- The Conclusion With Advertisment.
- IV: Excerpts From the Institutes
- A. the First Part of the Institutes
- The Preface.
- Section 1 Fee Simple
- Section 2 Fee Simple
- Section 3 Fee Simple
- Section 4 Fee Simple
- Section 5 Fee Simple
- Section 7 Fee Simple
- Section 8 Fee Simple
- Section 9 Fee Simple
- Section 10 Fee Simple
- Section 11 Fee Simple
- Section 12 Fee Simple
- Section 21 Fee Tail, Part 2
- Section 69 Tenant At Will, Part 2
- Section 80 Tenant By the Verge, Part 3
- Section 96 Escuage, Part 2
- Section 108 Knight’s Service, Part 6
- Section 138 Frankalmoin, Part 5
- Section 170 Tenure In Burgage, Part 9
- Section 199 Villenage, Part 18
- Section 342 Conditional Estates, Part 17
- Section 366 Conditional Estates, Part 41
- Section 372 Conditional Estates, Part 47
- Section 412 Descents, Part 27
- Section 464 Releases, Part 20
- Section 481 Releases, Part 37
- Section 723 Warranty, Part 30
- Section 728 Fee Warranty, Part 35
- B. the Second Part of the Institutes
- Deo, Patriae, Tibi.
- Magna Charta,
- C. The Third Part of the Institutes
- Deo, Patriae, Tibi.
- Cap. I. of High Treason.
- Cap. II. of Petit Treason.
- Cap. III. of Misprision of Treason.
- | Cap. IV. Felony By Compassing Or Conspiring to Kill the King, Or Any Lord Or Other, of the Kings Counsell.
- Cap. V. of Heresie.
- | Cap. VI. of Felony By Conjuration, Witchcraft, Sorcery, Or Inchantment.
- | Cap. Lxii. of Indictments.
- D. The Fourth Part of the Institutes
- Deo, Patriae, Tibi.
- Cap. I. of What Persons This Court Consisteth.
- Cap. VII. the Court of Kings Bench, Coram Rege. 1
But if there be father and son, and the father hath a brother that is uncle to the son, and the son purchase land in fee simple, and die without issue, living his father, the uncle shall have the land as heire to the son, & not the father, yet the father is neerer of bloud; because it is a maxime in Law, That inheritance may lineally descend, but not ascend. Yet if the son in this case dye without issue, and his uncle enter into the Land as heire to the sonne (as by Law hee ought) and after the uncle dieth without issue, living the father, the father shall have the land as heire to the uncle, & not as heire to his sonne, for that he commeth to the land by collelaterall discent & not by lineal ascent.
“yet the father is neerer of bloud,”
And therefore some doe hold upon these words of Littleton that if a Lease for life were made to the sonne the remainder to his next of bloud, that the father should take the remainder by purchase, and not the uncle, for that Littleton saith the father is next of bloud, and yet the uncle is heire. As if a man hath issue two sonnes, and the eldest sonne hath issue a sonne and die, a remainder is limited to the next of his bloud, the younger son shall take it, yet the other is his heire.
(p) “it is a maxime in Law, That inheritance may lineally descend, but not ascend.”
Maxime, i.e. a sure foundation or ground of Art, and a | conclusion of reason so called (q)quia maxima est ejus dignitas & certissima authoritas, atque quod maxime omnibus probetur, so sure and uncontrollable as that they ought not to be questioned. (r) And that which our Author here and in other places calleth a Maxime, hereafter he calleth a Principle, and it is all one with a Rule, a common ground, Postulatum or an Axiome, and it were too much curiositie to make nice distinctions betweene them. And it is well said in our Bookes, (s)nest my a disputer lancient principles del ley. I never read any opinion in any booke old or new against this Maxime, but onely in lib. rub. where it is said, (t)si quis sine liberis discesserit, pater aut mater ejus in haereditatem succedat, vel frater & soror si pater & mater desint, si nec hos habeat, soror patris vel matris & deinceps qui propinquiores in parentela fuerint haereditario succedant, & dum virilis sexus extiterit, & haereditas abinde sit, foemina non haereditat’. But all our ancient Authors and the constant opinion ever since doe affirme the maxime.
By this maxime in the conclusion of his case, onely lineall ascention in the right line is prohibited, and not in the collaterall, (u)Quaelibet haereditas naturaliter quidem ad haeredes haereditabiliter descendit, nunquam quidem naturaliter ascendit, descendit itaque jus quasi ponderosum quod cadens deorsum recta linea vel transversali, & nunquam reascendit ea via qua descendit post mortem antecessorum, à latere tamen ascendit alicui propter defectum haeredum inferius provenientium; so as the lineall ascent is prohibited by Law, and not the collaterall. And in prohibiting the lineall ascent, the Common Law is assisted with the Law of the twelve tables.
Here our Author for the confirmation of his opinion draweth a reason and a proofe (as you have perceived) from one of the maximes of the Common Law: Now that I may here observe it once for all, his proofes and arguments, in these his three bookes, may be generally divided into two parts, viz. from the Common Law and from Statutes, of both which, and of their severall branches I shall give the studious Reader some few examples, and leave the rest to his diligent observation.
For the Common Law his proofes and arguments are drawen from twentie severall fountaines or places.
(a) First, from the Maximes, Principles, Rules, Intendment and Reason of the Common Law, which indeed is the rule of the Law, as here, and in other places our Author doth use.
(b) Secondly, from the bookes, records, and other authorities of Law cited by him, Ab authoritate, & pronunciatis.
(c) Thirdly, from originall Writs in the Register, à rescriptis valet argumentum.
(d) Fourthly, from the forme of good pleading. (e) Fifthly, from the right entrie of Judgements.
(f) Sixthly, à praecedentibus approbatis & usu, from approved Precedents and Use.
(g) Seventhly, à non usu, from not use.
(h) Eighthly, ab artificialibus argumentis, consequentibus & conclusionibus, artificiall arguments, consequents and conclusions.
Ninthly, (i)à communi opinione jurisprudentium, from the common opinion of the Sages of the Law.
Tenthly, (k)ab inconvenienti, from that which is inconvenient.
Eleventhly, (l)à divisione, from a division, vel ab enumeratione partium, from the enumeration of the parts.
Twelfthly, (m)à majore ad minus, from the greater to the lesser, or (n) from the lesser to the greater, (o)à simili, (p)à pari.
13. (p)Ab impossibili, from that which is impossible.
14. (q)A fine, from the end.
15. Ab utili vel inutili, from that which is profitable or unprofitable.
16. (r)Ex absurdo, for that thereupon shall follow an absurditie, quasi à surdo prolatum, because it is repugnant to understanding and reason.
17. (s)A natura & ordine naturae, from nature or the course of nature.
| 18. (t)Ab ordine religionis, from the order of Religion.
19. (u)A communi praesumptione, from a common presumption.
20. (w)A lectionibus jurisprudentium, from the readings of learned men or Law. From Statutes his arguments and proofes are drawne.
1. (x) From the rehearsall or preamble of the Statute.
2. By the body of the Law diversly interpreted.
Sometime by other parts of the same Statute, which is benedicta expositio, & ex visceribus causae.
(y) Sometime by the reason of the Common Law. But ever the generall words are to bee intended of a lawfull Act, (z) and such interpretation must ever be made of all Statutes, that the innocent or he in whom there is no default may not be damnified.
There be divers Lawes within the Realme of England. As first (a)Lex Coronae, the Law of the Crowne.
2. (b)Lex & consuetudo Parliamenti. Ista lex est ab omnibus quaerenda, à multis ignorata, à paucis cognita.
3. (c) Lex naturae, the Law of nature.
4. (d)Communis Lex Angliae, the Common Law of England sometime called Lex terrae, intended by our Author in this and the like places.
5. (e) Statute Law, Lawes established by authoritie of Parliament.
6. (f)Consuetudines, Customes reasonable.
7. (g)Jus belli, The Law of Armes, Warre, and Chivalrie, in republica maximè conservanda sunt jura belli.
8. (h) Ecclesiasticall or Canon Law in Courts in certaine Cases.
9. (i) Civill Law in certaine cases not onely in Courts Ecclesiasticall, but in the Courts of the Constable and Marshall, and of the Admiraltie, in which Court of the Admiraltie is observed, la ley Olyron, anno 5. of Richard the first, so called, because it was published in the Isle of Olyron.
10. (k)Lex forestae, forest Law.
11. (l) The Law of Marque or reprisail.
12. (m)Lex mercatoria, Merchant, &c.
13. (n) The Lawes and Customes of the Isles of Jersey, Gernesey, and Man.
14. (o) The Law and priviledge of the Stannaries.
15. (p) The Lawes of the East, West, and middle Marches, which are now abrogated.
But here of this is little taste for our Student, that he may be capable of that which hee shall read concerning these and others in Records, and in our Bookes, and orderly observe them, shall suffice.
“and his uncle enter into the Land.”
For if the Uncle in this case doth not enter into the land, then cannot the father inherit the land, for there is another maxime in Law herein implyed. (q) That a man that claimeth as heire in fee simple to any man by descent must make himselfe heire to him that was last seized of the actuall freehold and inheritance. And if the Uncle in this case doth not enter, then had he but a freehold in Law, and no actuall freehold, but the last that was seized of the actuall freehold was the sonne to whom the father cannot make himselfe heire, and therefore Littleton saith, Et son uncle enter en la terre (sicome denoit per la ley) to make the father to inherit, as heire to the uncle. (r) Note, that true it is that the uncle in this case is heire, but not absolutely heire, for if after the descent to him the father hath issue a sonne or daughter, that issue shall enter upon the Uncle. (f ) And so it is if a man hath issue a sonne and daughter, the sonne purchaseth land in fee and dieth without issue, the daughter shall inherit the land, but if the father hath afterward issue a sonne, this sonne shall enter into the Land as heire to his brother, and if he hath issue a daughter and no sonne, she shall be coparcener with her sister.
“as by Law hee ought.”
These words as a key doe open the secrets of the Law, for hereupon it is concluded, that where the Uncle cannot get an actuall possession by entrie or otherwise, there the father in this case cannot inherit. And therefore if an Advowson be granted to the sonne and his heires, and the sonne dye without issue, and this descend to the uncle, and he dye before he doth or can present to the Church, the father shall not inherit, because he should make himselfe heire to the son, which hee cannot doe. And so of a rent and the like. But if the uncle had presented to the Church, or has seisin of the rent, there the father should have inherited. For Littleton putteth his case of an entrie into land but for an example, If the sonne make a Lease for life, and die without issue, and the reversion descend to the uncle, and he die, the reversion shall not descend to the father, because in that case he must make himselfe heire to the sonne. A. infeoffe the sonnes with warrantie to him and his heires, the sonne dies, the uncle enters into the Land and dies, the father if he be impleaded shall not take advantage of this war-|-rantie, for then he must vouch A. as heire to his sonne, which hee cannot doe for albeit the warrantie descended to the uncle, yet the uncle leaveth it as he found it, and then the father by Littletons (devoit) cannot take advantage of it. For Littleton, Sect. 603. saith that warranties shall descend to him that is heire by the Common Law, and Sect. 718. hee saith that everie warrantie which descends, doth descend to him that is heire to him which made the warrantie by the Common Law, which proveth that the father shall not be bound by the warrantie made by the son, for that the father cannot be heire to the son that made the warrantie. And a warrantie shall not goe with tenements, whereunto it is annexed, to any especiall heire but alwaies to the heire at the Common Law. And therefore if the uncle be seised of certaine lands, and is disseised, the son release to the disseisor with warrantie, and die without issue, this shall bind the uncle, but if the uncle die without issue, the father may enter, for the warrantie cannot descend upon him. So if the sonne concludeth himselfe by pleading concerning the tenure and services of certaine lands, this shall bind the uncle, but if the uncle die without issue, this shall not bind the father, because he cannot be heire to the son, and consequently not to the Estoppell in that case: but if it be such an Estoppell as runneth with the land, then it is otherwise.
5. Edw. 6. tit. Administr. Br. 47. Ratcliffes case ubi sup. See after in the Chapter of Socage.
(p) Pl. Com. 293. b. Osbornes case.
(q) Pl. Com. 27. b.
[Ed.: because a maxim is of the same worthiness and most certain authority as something which is completely proved to everyone.]
(r) Sect. 90. f. 48.
(s) 12. Hen. 4. Glanvill lib. 7.cap. 1. Bract lib. 2. cap. 29.
[Ed.: the ancient principles of our law are not to be disputed.]
(t) Lib. Rub. cap. 70.
[Ed.: If anyone dies without children, his father and mother succeed to the inheritance, or the brother and sister if there are no father and mother, and if he does not have those then the sister of his father or mother, and thereafter those who are next in the parentela (ancestral line) succeed; and so long as there is someone of the male sex who may have the inheritance, a woman does not inherit.]
(u) Britt. ca. 119. Fleta lib. 6. ca. 1. Numb. ca. 27. Ratcliffes case ubi supra.
[Ed.: An inheritance naturally descends to the heirs by way of inheritance, but never naturally ascends. For the right descends like a weight falling downwards in the direct or transverse line, and it never reascends in the same path by which it descends after the death of ancestors, but sometimes ascends collaterally to someone by reason of the want of heirs below.]
Sect. 5. 8. 90. 96. 52. 53. 57. 59. 65. 99. 130. 146. 156. 169. 178. 231. 293. 302. 352. 360. 376. 377. 396. 410. 440. 441. 346. 347. 462. 431.
(b) Sect. 20. where a number other are quoted.
[Ed.: of authority and proclamation]
(c) Sect. 67. 132. 170. 234. 241. 263. 613. 614.
[Ed.: from writing if sound argument.]
(d) Sect. 58. 170. 183. 369.
(e) Sect. 248. 249.
(f ) sect. 88. 74. 76. 145. 332. 371. 372. 445.
(g) 108. 733.
(h) sect. 170. 264. 283. 302. 429. 464. 629. 633. 686. 340. 418. 613. 686. 739.
(i) sect. 697. 59. 104. 288. 332. 478.
(k) Sect. 87. where many others are quoted.
(l) sect. 13. where many more are quoted, but see chiefly. sect. 281.
(m) sect. 438. 439. 441.
(n) sect. 18.
(o) 301. &c.
[Ed.: from the similar.]
(p) 291. 298. 409. &c.
[Ed.: from the equal.]
(p) 129. 440. [note, this note is mis-designated “p” duplicating the sequence, in the first edition.]
(q) sect. 46. 194.
(r) sect. 722.
[Ed.: As if uttered by a deaf-mute.]
(s) sect. 114. 223. 129. 211. 107. 108.
(t) Sect. 202.
(u) Sect. 440.
(w) Sect. 481.
(x) Sect. 13. &c. Sect. 731. 692. 635. 633. 441. 103. 193. 154. 140. a.
[Ed.: a blessed exposition, and from the innermost parts of the cause.]
(y) Sect. 464.
(z) Sect. 731. 685.
(a) 17. Edw. 3. Rot. parl. nu. 19. 25. Edw. 3. cap. I. Regist. inter Unra regia, 61. &c.
(b) Commonly spoken of in Parliament Rols.
[Ed.: The law and custom of parliament. This law is to be sought out by everyone, but is unknown to many, and known to very few.]
(c) 13. Edw. 4. 9. Lib. 7. Calvins case, Pl. Com. Sharingtons case.
(d) This Law appeareth in our Bookes and judiciall Records.
(e) These are of record in Rolls of Parliament.
(f ) Whereof you shall read in our Author, and in our Bookes.
(g) Rot. Parl. 2. Ric. 2. nu. 3. 13. Ric. 2. ca. 2.
[Ed.: In a state the laws of war are to be especially upheld.]
(h) Lib. 7. Candries case articul. super cartas, &c.
(i) 37. Hen. 6. Fortese. cap. 32. 13. Hen. 4. 4. 28. H.8. ca. 15.
(k) Carta de Foresta, &c. the Eires of the Forests.
(l) 27. Edw. 3. ca. 17. Wi.ca.23. 4. Hen. 5. cap. 7.
(m) Mirror des Justic. c. 1. Bract. 334–444. Fleta lib. 2. ca. 51. 52. &c. 5. Edw. 3. 11.38. Edw. 3. 27. Edw. 3. 7. cap. 8. Fortesc. 32. F. N. B-117. 13. H. 4.9. Rot. parl. 6. Hen. 4. nu. 43. 10 Hen. 7. 16. 47. Edw. 3. 21. 30. E.1. Account. 127. Carta Mercatoria 31. E. 1. Rot. patent.
(n) Mich. 41. Edw. 3. coram Rege in Thesaur. 12. E. 3. 5b. Hen. 8. fol. 5. Rot. pat. an. 20. E. 1. lib. 7. Calvins case, fol. 21. Regist. fol. 22.
(o) 50. Edw. 2. Rot parl. 50. Edw. 3. Rot. patent. &c.
(p) 31. Hen. 6 ca. 3. 4. Ia. c. 1.
(q) 11. Hen. 4. 11. 10. Ass. 27. 34. Ass. p. 20. 19. E. 2. Quar. imped. 177. 45. Edw. 3. 13. 40. Ass. p. 6.
[Ed.: And his uncle enters in the land (as by the law he ought).]
(r) 11. Ass. p. 6. Doct. & Stud. 12b. 22. H. 6. 35.
(s) 19. Hen. 6. 61.
[Ed.: the right to present a church or benefice; a patronage.]
Vid. sect. 603 718.
Vid. sect. 735. 736. 737.
35. Hen. 6. 33. John Crook’s case.