- 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
And it is to wit, that this word (inheritance) is not only intended where a man hath Lands or Tenements by descent of inheritage, but also everie Fee simple or taile which a man hath by his purchase may be said an inheritance, because his heires may inherit him. For in a Writ of right which a man bringeth of land that was of his owne purchase, the Writ shall say, Quam clamat esse jus & haereditatem suam. And so shall it be said in divers other Writs which a man or woman bringeth of his owne purchase, as appeares by the Register.
“And it is to wit”
This kind of speer is used twice in this Chapter, and oftentimes by our Author in all his three Bookes, and ever teacheth us some rule of Law, or generall or sure leading point, as you shall perceive by reading, and observing of the same, which for the ease of the studious Reader I have observed.
“Quam clamat esse jus & haereditatem suam.”
(a) Here our Author declareth the right signification of this word (inheritance.) And true it is, that in the Writ of right Patent, &c. Quando Dominus remittit Curiam suam, The words of the Writ be, Quam clamat esse jus & haereditatem suam. And in the Praecipe in capite, in a Cui in vita, (b) when the Defendant claimeth by purchase, the Writ is Quam clamat esse jus & haereditatem suam. And with Littleton agreeth the Register, fol. 4. & 232. and the Booke in 49 Edw. 3. 22. against sodaine opinions 7. Hen. 4. 5. 10. Hen. 6.9. 39. Hen. 6.38. Pl. Com. Wimbethes case 47. And yet in 7. Hen. 4.5. which is the Booke of the greatest weight, Sir. William Thirning Chiefe Justice of the Common Bench (as it seemeth doubting of it) went into the Chancerie to enquire of the Chancerie men the forme of the Writ in that case, and they said that the forme was both the one way and the other, so as thereby the opinion of Littleton is confirmed, and the Booke in6. Edw.3.fol.30.is notable, for there in an Action of waste the Plaintife supposed, that the Defendant did hold de haereditate sua, and it is ruled, that albeit the Plaintife purchased the reversion, yet the Writ should serve. And there it is said, It hath beene seene, that in a Cui in vita, the Writ was, which the Demandant claimed as her right and inheritance, when it was her purchase. And so this point wherein there might seeme some contrarietie in bookes is manifestly cleared. But in the Statute of West. 2. cap. 5.de haereditate uxorum by construction of the whole Statute is taken onely for the wives inheritance by descent, and not by purchase, as appeareth in 1. Edw. 2. tit. Quare imped. 43. 35. Hen. 6. 54. F. N. B. 34.b.
There be some that have an inheritance (c) and have it neither by descent, nor properly by purchase, but by Creation, as when the King doth create any man a Duke, a Marquesse, Earle, Viscount, or Baron to him and his heires, or to the heires males of his bodie, &c. hee hath an inheritance therein by Creation. A man may have an inheritance in title of Nobilitie and Dignitie three manner of wayes, that is to say, by Creation, by Descent, and by | Prescription. By Creation two manner of ordinarie wayes (for I will not speake of a Creation by a Parliament) by Writ, and by Letters Patents. Creation by Writ is the ancienter way, and here it is to be observed; that a man shall gaine an inheritance by Writ. King Richard the second created John Beauchampe de Holte Baron of Kedermister by his Letters Patents, bearing date the 10. of October, anno regni sui II. before whom there was never any Baron created by Letters Patents, but by Writ. And it is to bee observed, that if hee bee generally called by Writ to the Parliament, he hath a Fee simple in the Barony without any words of inheritance. But if he be created by Letters Patents, the state of inheritance must be limited by apt words, or else the grant is void. If a man be called by Writ to the Parliament, and the Writ is delivered unto him, and he dieth before he commeth and sits in Parliament, whether he was a Baron or no? And it is to be answered that he was no Baron, for the direction and deliverie of the Writ to him maketh not him Noble; for the better understanding whereof it is to be knowne that the words of the Writ in that case are, Rex, &c. E. B. de D. Chivalier salutem. Quia de advisamento & assensu concilii nostri pro quibusdam arduis & urgentibus negotiis statum & defensionem regni nostri Angliae, &c. concernentibus quoddam Parliamentum nostrum apud Civitatem Westm. à 21. Octob. proxim. futuro teneri ordinavimus, & ibid. vobiscum & cum Praelatis, Magnatibus & Proceribus dicti regni nostri colloquium habere & tractatum, vobis in fide & ligeancia quibus nobis tenemini firmiter injungendo mandamus, quod consideratis dictorum negotiorum arduitate, & periculis imminentibus cessante excusatione quacunque, dictis die & loco personaliter intersitis nobiscum & cum Praelatis, Magnatibus, & Proceribus supradictis, super dictis negotiis tractatur’ vestrumque consilium impensur’, &c. , And this Writ hath no operation or effect untill hee sit in Parliament, and thereby his bloud is ennobled to him and his heires lineall, and thereupon a Baron is called a Peere of Parliament. (d) And if issue be joyned in any action, whether he be a Baron, &c. or no, it shall not be tried by Jurie, but by the Record of Parliament, which could not appeare unlesse hee were of the Parliament. Therefore a Duke, Earle, &c. of another Kingdome, are not to bee sued by those names here, for that they are not Peeres of our Parliament. And albeit the Creation by Writ is the ancienter, yet the Creation by Letters Patents is the surer, for hee may bee sufficiently created by Letters Patents, and made Noble, albeit hee never sit in Parliament.
(e) And it is to be observed that Nobilitie may bee granted for terme of life, by act in Law without any actuall Creation; as if a Duke take a wife, by the intermarriage shee is a Duchesse in Law, and so of a Marquesse, an Earle, and the rest, and in some other case. And there is a diversitie betweene a woman that is Noble by Descent, and a woman that is noble by marriage. (f) For if a woman that is Noble by Descent, marrie one that is under the degree of Nobilitie, yet remaineth Noble still; but if shee gaine it by marriage, shee loseth it, if shee marrie under the degree of Nobilitie, and so is the rule to be understood, Si mulier nobilis nupserit ignobili desinit esse nobilis. (g) But if a Dutchesse by marriage marrieth a Baron of the Realme she remaineth a Dutchesse and loseth not her name, because her husband is Noble, &c de caeteris.
And as an estate for life may be gained by marriage, so may the King create either man or woman Noble for life (h) but not for yeares, because then it might goe to Executors or Administrators. The true division of persons is, that everie man is either of Nobilitie, that is, a Lord of Parliament of the upper House, or under the degree of Nobilitie, amongst the Commons, as Knights, Esquires, Citizens and Burgesses of the lower House of Parliament, commonly called House of Commons, and he that is not of the Nobilitie is by intendment of Law among the Commons.
“as appeares by the Register”
Which booke in the Statute of West. 2. ca. 24. is called Registrumde Cancellaria, because it containeth the formes of Writs at the Common Law that issue out of the Chancerie, tanquam ex officina justiciae. There is a Register of originall Writs, and a Register of judiciall Writs, but when it is spoken generally of the Register it is meant of the Register originall. For the antiquitie and excellencie of this Booke, see in my Preface to the eighth part of my Commentaries. This excellent Booke our Author voucheth divers times in these Bookes, and so doth he divers other Authorities in Law of severall kindes, but with this observation, that he citeth no Authoritie, but when the case is rare or may seeme doubtfull, which appeareth in this, that he putteth no Case in all his three Bookes but hath warrant of good Authoritie in Law. For he knew well the rule, that perspicua vera non sunt probanda. And the like observation its made of Justice Firzherbert in his Booke of Natura Brevium, that he never citeth Authoritie, but when the Case is rare or was doubtfull to him. The Authorities which our Author hath cited in his three Bookes I have collected.
[Ed.: Which he claims to be his right and inheritance.]
Sect. 45, 46. 57. 59. 80. 100. 146. 164. 170. 184. 229. 243. 259. 274. 280. 293. 300. 305. 419. 420. 421. 489. 632. 697. 749.
(a) Sect. 732. Bract. Lib. 2. fo. 62. b. Fleta, lib. 6. cap. 1.
[Ed.: when the lord has waived his court.]
[Ed.: A writ in Chancery to protect a tennant-in-chief who has been dispossesed of his lands.]
(b) Regist. fol. 1, 2. Regist. Fo. 4. 232. 49E.3. 22. 7H. 4. 5. 10H. 6. 38. 6 E. 3. 30. Pl. Com. Wimbeshe’s case, 47. & 58. b.
6. E. 3. 30.
[Ed.: of his inheritance.]
W. 2. ca. 5.
I. E. 3. tit. quare Imped. 43. 35. H. 6. 34. F. N. B. 34 b.
(c) Lib. 6. fol. 5a. 53. Countes de Rutlands case, lib. 8. fol 16. 17. the Princes case.
[Ed.: The king, etc. to E. B. of D., knight, greeting. Because, by the advice and consent of our council, we have ordained our certain parliament to be held at Westminster on the twenty-first day of October next coming, for certain arduous and urgent business concerning the estate and defence of our realm of England, there to have discussion and treaty with you and with the prelates, great men and peers of our said realm: we, firmly enjoining, command you upon the faith and allegiance which you bear unto us, considering the arduousness and imminent dangers of the said business, that you, leaving aside all excuses whatsoever, be there personally at the said day and place with us and with the prelates, great men and peers mentioned above, to treat and give your advice upon the said business, etc.]
Lib. 6. fol. 52. 53. Countesse of Rutlands case, 8. H. 6. 10. 48. E. 3. 30. 35. H. 6. 46. Pl. Com. 223.
(d) 35. H. 6 46. 48. E. 2.30b. 43. Ass. p. 6. 22. Ass. p. 24. Regist. 287. 11. E. 3. breve 472. 20. E. 4. 6.
(e) Lib. 6. fol. Countes de Rutlands case, 2. H. 6. 11. 22. Ass. 24. 12. E. 3. breve 254. 3. H. 4. 19. 11. H. 4. 25. Vide Fleta lib. 6. ca. 10.
(f) Lib. 4. fol. 118. Actons case, Tempore Mariae Reginâ. Brooke nosme de dignitie 69. 14. H. 6. 18. 2. H. 6. 11.
[Ed.: If a noblewoman marries someone who is not noble, she ceases to be noble.]
(g) 22. H. 6. 52.
[Ed.: and likewise of the rest.]
(h) Lib. 9. fol. 97. 98. Sir George Reynels Case.
[Ed.: as from the workshop of justice.]
Vide sect 88. 97. 96. 101. 157. 234. 308. 383 412. 480 433. 514. 643. 644. 657. 660. 692. 701. 729.
[Ed.: Plain truths need not be proved.]