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Front Page  Titles (by Subject) Section 21 Fee Tail, part 2 - Selected Writings of Sir Edward Coke, vol. II
Section 21 Fee Tail, part 2 - 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.
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- 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
- Epilogue
- 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
Section 21
Fee Tail, part 2
| And all these Entailes aforesaid be specified in the said Statute of W. 2. Also there bee divers other estates in taile, though they bee not by expresse words specified in the said Statute, but they are taken by the equitie of the same Statute. As if lands be given to a man, and to his heires males of his body begotten, in this case his issue male shal inherit, and the Issue female shall never inherit, and yet in the other entailes aforesaid, it is otherwise. “And all these Entailes aforesaid be specified in the said Statute of W[estmister].2.”
And so it appeareth by the said statute. Auxy sont divers auters estates en le taile, &c. And herewith agreeth Carbonels Case, 33. Edw. 3. titulo Taile 5.
That the cases of the statute are set downe but for examples of estates tailes generall and speciall, and not to exclude other estates taile 3. Edw. 3. 32. 18. Ass. p. 5. 13. Edw. 3. 46. 1. Mar. Dyer 46. Pl. Com. Seignior Barkleys case, fo. 251. For, Exempla illustrant, non restringunt legem.
| “equitie.”
Is a construction made by the Judges, that cases out of the letter of a statute yet being within the same mischiefe, or cause of the making of the same, shall bee within the same remedie that the Statute provideth; And the reason hereof is for that the Law-maker could not possibly set downe all cases in expresse termes, Aequitas est convenientia rerum quae cuncta coaequiparat, & quae in paribus rationibus paria jura & judicia desiderat. And againe, Aequitas est perfecta quaedam ratio quae jus scriptum interpretatur&emendat, nullascripturâ comprehensa, sed solum in vera ratione consistens. Aequitas est quasi aequalitas.Bonus Judex secundum aequum & bonum judicat, & aequitatem stricto juri praefert. Et jus respicit aequitatem.
“As if lands be given to a man, and to (f) his heires males of his body begotten, in this case his issue male shall inherit, and the Issue female shall never inherit, &c.”
This shall be explaned afterward, Sect. 24.
3. E. 3. 32 18. E. 3. 46. 18. Ass. p. 5. 1. Mar. Di. 46. Pl. Com. 251.
[Ed.: Examples illustrate, but do not restrain, the law.]
Bract. lib. 4 fol. 186.
[Ed.: Equity is the assemblage of things that make equality among all people, and that in equal parts through reason brings law and adesirable judgment.... Equityistheperfectionofthatreasonthatinterprets and improves the written laws; no written law can be understood but that it consists of true reason. Equity is nearly equality. The good judge (is one who) follows equity and good decision andprefersstrictlyequitable decisions. And the law seeks equity.]
(f) 18. Ass. p. 5. 18. E. 3. 46. 33. E. 3, Taile 5. 3. E. 3. 32. Il. Com. Seigniour Barkleys case. 1. Mar. Dy. 46. V. Sect. 24.
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