- 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 of such things whereof a man may have a Manuell occupation, possession or receipt, as of lands, Tenements, Rents, and such like, there a man shall say in his Count Countant and Plea Pleadant, that such a one was seised in his demesne as of fee, but of such things which do not lye in such Manuall occupation, &c. as of an Advowson of a Church and such like, there he shall say, that hee was seized as of fee, and not in his Demesne as of fee. And in Latine it is in one Case, Quod talis seisitus fuit in dominico suo ut de feodo, and in the other Case, Quod talis seisitus fuit, &c. ut de feodo.
“In his Count Countant.”
In Count Countant. Count, i.e. narratio commeth of the French word Conte which in Latine is Narratio, and is vulgarly called a Declaration. The originall writ is according to his name Breve, briefe & short, but the Count which the Plaintife or Demandant make is more narrative & spacious and certaine both in matter & in circumstance of time and place, to the end the defendant may be compelled to make a more direct answer; so as the writ may be compared to Logicke and the Count to Rhetoricke, and it is that which the Civilians call a Libell. And in that ancient booke of the Mirror of Justices, Lib. 2. cap. des Loiers, Contors are Serjants skilfull in Law, so named of the Count as of the principall part, and in Wil. 2. ca.29. hee is called Serjant Counter.
“in his Plea Pleadant.”
Placitum. Here Littleton teacheth good pleading in this point, of which in his third Booke and Chapter of Confirmation, Sect. 534. hee thus saith, Et saches mon sits que est un des pluis honorables, laudables, & profitable choses en nostreley, de auer le science de bien pleader en actions reals & personels, & pur ceo, ieo toy counsaile especialment de metteraton courage, & cure de ceo apprender. And for this cause this Word Placitum is derived à placendo, quia bene placitare super omnia placet, and it is not as some have said, so called per Antiphrasin, quia non placet.
Seisitus commeth of the French word seisin, i. possessio, saving that in the Common Law seised, or seisin is properly applyed to Freehold, and possessed or possession properly to goods and chattels; although sometime the one is used in stead of the other.
“in his demesne as of fee, In Dominico suo ut in feodo.”
Dominicum is not onely that inheritance, wherein a man hath proper dominion or ownership, as it is distinguished from the lands which another doth hold of him in service, but that which is manually occupied, manured, and possessed, for the necessarie sustentation, maintenance and supportation of the Lord and his houshold, and savoureth de domo, of the house, either ad mensam, for his or their board and sustentation, or manually received (as Rents) for bearing and defraying of necessarie charges publike or private. Of these (saith our Author) he should plead, that he is seised in dominico suo ut de feodo, i.e. de feodo dominicali, seu terrâ dominicali, seu redditu dominicali, which is as much to say as Demeyne or Demaine, of the hand, i. manured by the hand, or received by the hand, and therefore he calleth it manuall occupation, possession or receipt. And in Domesday Demeane land is called Inland, as for example, 4. bovatas terrae de Inland, & 10. bovatas in servitio.
“in such Manuall occupation, &c.”
There is nothing in our Author but is worthy | of observation. Here is the first (&c.) and there is no (&c.) in all his three Bookes (there being as you shall perceive verie many) but it is for two purposes. First it doth imply some other necessarie matter. Secondly, that the Student may together with that which our Author hath said, inquire what authorities there be in Law that treat of that matter, which will worke three notable effects: First, it will make him understand our Author the better: Secondly, it will exceedingly adde to the Readers invention. And lastly, it will fasten the matter more surely in his memorie, for which purpose I have for his case in the beginning set downe in these Institutes, the effect of some of the principall authorities in Law, as I conceive them concerning the same. In this place the (&c.) implyeth possession or receipt, and such other matter as appeareth by my notes in this Section. As for the Authorities of Law, you shall finde the effect of them in this Section, and the like of the rest of the (&c.) which you shall finde in the Sections hereafter mentioned, omitting those (for avoyding of tediousnesse) that either are apparent, or which are explained in some other places, viz. Sect. 20. 48. 102. 108. 120. 125. 136. 137. 146. 149. 154. 164. 166. 167. 168. 177. 179. 183. 184. 194. 200. 202. 210. 211. 217. 220. 226. 233. 240. 242. 244. 245. 248. 262. 264. 269. 270. 271. 279. 320. 322. 323. 325. 326. 327. 329. 330. 335. 336. 341. 347. 348. 349. 350. 352. 355. 356. 359. 364. 365. 374. 375. 377. 381. 384. 389. 393. 395. 397. 399. 401. 402. 410. 417. 428. 433. 447. 449. 464. 470. 471. 477. 483. 489. 500. 501. 522. 532. 552. 553. 556. 558. 562. 578. 591. 592. 593. 594. 603. 613. 624. 625. 630. 632. 634. 637. 638. 648. 659. 660. 661. 669. 687. 693. 700. 718. 745. 748. 749. All which I have observed and quoted here once for all, for ease of the studious Reader.
“ut de feodo,”
Where (ut) is not by way of similitude, but to be understood positively that he is seised in fee. And so it is where one pleads a descent to one ut filio & haeredi, that is, to Io.S. that is sonne and heire, & sic de caeteris, where (ut) denotat ipsam veritatem.
“as of an Advowson”
Of an Advowson (i) wherein a man hath as absolute ownership and propertie as hee hath in Lands or Rents, yet hee shall not plead, that hee is seised in Dominico suo ut feodo, because that inheritance, favouring not de domo, cannot either serve for the sussentation of him and his houshold, nor any thing can bee received for the same for defraying of charges. And therefore hee cannot say, that hee is seised thereof in dominico suo de feodo, whereby it appeareth how the Common Law doth detest Simony, and all corrupt bargaines for presentations to any Benefice, but that (k)idonea persona for the discharge of the Cure should be presented freely without expectation of any thing; nay, so cautious is the Common Law in this point that the Pl. in a Quare impedit should recover no damages for the losse of his presentation untill the Statute of West 2.cap.5. And that is the reason that Gardian in Socage (l) shall not present to an Advowson, because hee can take nothing for it, and by consequent hee cannot account for it. And by the Law hee can meddle with nothing that hee cannot account for it. (m) And in a Writ of right of Advowson, the Patron shall not alleage the explees or taking of the profits in himselfe, but in his Incumbent. And hereby the old Bookes shall bee the better understood, viz. Bracton, lib. 4. tract.3. cap. nu. 5. Est autem dominicum quod quis habet ad mensam, & proprie, sicut sunt Boordlands Anglice. And Fleta lib. 5.ca.5. Est autem dominicum proprie terra ad mensam assignata. Dominicum etiam dicitur ad differentiam ejus quod tenetur in servitio. But of an Advowson and such like hee shall plead, that hee is seised de advocatione ut de feodo & jure.
Advocatio, signifying an advowing or taking into protection, is as much as jus patronatus. Sir William Herle in 7. Edw. 3. fol. 4. saith, that it is not long past, that a man did known what an Advowson was, but when a man would grant an Advowson hee granted, Ecclesiam the Church, and thereby the Advowson passed, Vide 45. Edw. 3. 5. But surely the word is of greater antiquitie, for in the Register there is an originall Writ de recto Advocationis, and in the originall Writ of Assise de darreine presentment the Patron is callen Advocatus. (n) Vide Wil. 2. ca.5. And so doth (o) Bracton call him. Advocatus autem dici poterit ille ad quem pertinet jus advocationis alicujus, ut ad Ecclesiam praesentet nomine proprio & non alieno. And (p) Fleta lib. 5. cap.14. agreeth herewith almost totidem verbis: Advocatus est ad quem pertinet jus advocationis alterius Ecclesiae, ut ad Ecclesiam nomine proprio non alieno possit praesentare. And (q) Britton cap. 92. The Patron is called Avow, and the Patrons are called Advocati, for that they bee either Founders, or Maintainers, or Benefactors of the Church either by building, donation, or increasing of it, in which respect they were also called Patroni, and the Advowson jus patronatus.
And it is to be understood that there is a great (r) diversitie inter advocationem medietatis Ecclesiae, &c. & medietatem advocationis Ecclesiae. And of their severall remedies for the same, For the Advowson of the moytie is when there be severall Patrons, and two severall Incumbents in one Church, the one of the one moytie thereof, and the other of the other moytie, and one | part as well of the Church as of the Towne allotted to the one, and the other part thereof to the other, and in that case each Patron if he be disturbed shall have a Quare impedit, quod permittat ipsum praesentare idoneam personam ad medietatem Ecclesiae.
But if there be two Coparceners, and they do agree to present by turne, each of them in truth hath but a moytie of the Church, but for that there is but one Incumbent, if either of them bee disturbed she shall have a Quare impedit, &c. praesentare idoneam personam ad Ecclesiam; for that there is but one Church and one Incumbent, and so of the like. But in (s) the said case of the Coparceners one of them shall have a writ of right of Advowson de medietate advocationis, for in truth she hath but a right to a moytie, but in the other case where there be two Patrons and two Incumbents in one Church, each of them shall have a writ of right of Advowson De advocatione medietatis.
And as there may (as hath beene said) be two severall Parsons in one Church, so there may be two that may make but one parson in a Church. (t) Britton saith, Si ascun Esglise soir done a divers persons per un sole avowe nul ne sepura pleadre per assise de juris utrum ne nul estre implede sauns lautre, &c. And therewith agreeth Fleta. (u)Item licet aliqua Ecclesia divisa fuerit inter duos, sive bona sua habeant communia sive separata, dum tamen unicum habeant advocatum nullus eorum sine alio agere poterit vel implacitari. And Fitzh.saith that two Prebendaries may be one Parson of a Church, who shall joyne in a Juris utrum, so as one Rectorie may be annexed to two severall Prebends, and both of them make but one Parson. But where one is Parson of the one moytie of a Church, and another of the other moytie, as hath been said, there one of them shall have a juris utrum against the other, and in the Writ shall name him persona medietatis Ecclesiae, &c. But for avoyding of suspicion of curiositie if we should proceed any further herein, we will attend what Littleton will further teach as.
[Ed.: that such and such was seised in his demesne as of fee.]
Mirror des Justices.
W. 2. cap. 39.
[Ed.: And know, my son, that it is one of the most honorable, laudable and profitable things in our law to have the knowledge of pleading well in actions real and personal, and therefore I advise you especially to employ your effort and care in learning it.]
[Ed.: placitum (plea) (is derived) from placendo (pleasing), because pleading well pleases above all.]
[Ed.: by antiphrasis, because it does not please.]
Bract. lib. 4. fol. 253. Idem lib. 5. fol. 372. Britton fol. 205. 206. Fleta lib. 5. cap. 5. Stanf. praer. 8.
Pl. Com. fol. 191. Wrote sleys case.
[Ed.: in his demense as of fee, that is, of a demense fee, or demesne land, or demense rent.]
[Ed.: four bovates (each 12–15 acres) of ‘inland’ (i.e. demesne) land, and ten bovates in service.]
[Ed.: As of fee.]
Briton 205. 206. optime. Fleta lib. 6. cap. 5. Idem lib. 3. cap. 15.
[Ed.: as son and heir.]
[Ed.: and likewise of the rest.]
[Ed.: ut (as) denotes the truth itself.]
(i) 7. E. 3. 63. 24. E. 3. 74. 34. H. 6. 34. 19. E. 3. Quar, imp. 154. Mirror cap. 2. sect. 17. [Ed.: “Advowson” is the right to control a church or beneficence.]
[Ed.: Desmesne as of his fee . . . control.]
(k) Lib. 6. fol 51. Boswels case.
(l) 8. E. 2 Presentment al Eglise 10. 7. E. 3. 39. 27. E. 3. 89. 29. E. 3. 5. 31. E. 3. Estoppel 240.
(m) 7. E. 3. 63. Bracton 263. 372. Flera lib. 5. cap. 5.
[Ed.: Demense is what someone has to (supply) the table (i.e. to provide food), and for his own use, as ‘board-lands’ are in English. . . . Demesne is land set aside to (supply) the table, for his own use. It is also called demesne to distinguish it from what someone holds in service.]
[Ed.: of the advowson as of fee and right.]
7. E. 3. 4.
45. E. 3. 1.
(n) W. 2. ca. 5
(o) Bract. lib. 4. fo. 240.
[Ed.: He to whom the right of advowson belongs may be called the avowee (patron), since he may present to the church in his own name and not in someone else’s.]
(p) Fleta lib. 5. cap. 14.
[Ed.: In so many words: A patron is he to whom appertains the right of presentation to a church, in such a manner that he may present to such a church in his own name, and not in the name of another.]
(q) Britton cap. 92.
(r) 33. H. 6. 11. b. per Prisot: 14. H. 6. 15. per Newton. 31. E. 1 droit 68. 69. F.N.B. 31 b. Lib. 10. 135. 136. R. Smiths case. 45. E 3. Fines 41. 45. E. 3. 12. 17. E. 3. 78. 17. E. 2. Dower 163.
[Ed.: between an advowson of a moiety of a church, and a moiety of the advowson of a church.]
[Ed.: That he permit him to present a suitable parson to the moiety of the church.]
[Ed.: to present a suitable parson to the church.]
(s) Britton fol. 235. 31. E. I. droit. 68. 97. F.N.B. 31. b. 5. 33. 5. H. 7. 8. 17. E. 3. 38. 75. 76. 7. E. 327. 8. E. 3. 425. 22. Ass. p. 33. 14. H 4 10. 33. E. 3. Quare. imp. 196.
[Ed.: of the moiety of an advowson.]
(t) Britton fo. 235.
[Ed.: If any church is given to various persons by one sole avowee (patron), no one may plead by assize of juris utrum and none of them may be impleaded without the other.]
(u) Fleta lib. 5. ca. 19.
[Ed.: Even if some church is divided between two, whether they have their goods in common or separately, nevertheless so long as they have one advowson neither of them may sue or be impleadedwithout the other.]
F.N.B. 49. 0.
[Ed.: An abolished writ which lay for the parson of a church whose predecessor had alienated the lands and tenements thereof.]
F. N. B. 49. p.