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Section 96 Escuage, 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.

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.


Section 96
Escuage, part 2

| But it appeareth by the pleas and arguments made in a plea upon a Writ of detinue of a writing obligatorie brought by one H. Gray. T.7.E.3. that it is not needfull for him which holdeth by Escuage to goe himselfe with the King if hee will finde another able person for him conveniently arrayed for the warre to goe with the King. And this seemeth to be good reason. For it may be that hee which holdeth by such services is languishing, so as hee can neither goe nor ride. And also an Abbot or other man of Religion, or a feme sole, which hold by such services, ought not in such case to goe in proper person. And Sir William Herle then chief Justice of the common place said in this plea, that Escuage shall not bee granted, but where the King goes himselfe in his proper person. And it was demurred in judgment in the same plea, whether the 40. dayes should bee accounted from the first day of the muster of the Kings host made by the Commons, and by the commandement of the King, or from the day that the King first entred into Scotland. Therefore inquire of this.

TR. 7. E. 3. &c.1 This is the first booke at large that our Author hath cited and it is to be observed that this point is not debated in the said booke, but onely it is there admitted, and yet is good authoritie in law, for our Author saith that it appeareth by this booke, now both by Littleton himselfe, and by the booke of 7. Edw. 3. it is apparant that albeit the tenure is that hee which holdeth by a whole knights fee ought to be with the King, &c. todoeacorporall service, yet he may finde another able man to doe it for him.

By the Statute of Magna Charta, cap. 20. it is provided, that no knight that holdeth by Castle-gard shall bee distreined to give money for the keeping of the Castle, Si ipse eam fucere voluerit in propria persona sua vel per alium probum hominem faciet si ipse eam facere non possit propter rationabilem causam.2

Some have thought that hee that holds by Escuage is taken by the equitie of this statute that speaketh onely of Castle-gard, but it is holden that this statute is but an affirmance of the common law. For where that Act saith, (propter rationabilem causam)3 that reasonable cause is referred to the tenants owne discretion and choyce, and the cause is not materiall or issuable no more than in the case that Littleton here putteth, as hereafter appeareth. And I would advise our Student, that when he shall be enabled and armed to set upon the yeere bookes, or reports of Law, that hee be furnished with all the whole course of the Law, that when hee heareth a case vouched and applyed either in Westminster Hall, (where it is necessarie for him to be a diligent hearer, and observer of cases of Law) or at readings or other exercises of learning, hee may find | out and reade the case so vouched, for that will both fasten it in his memorie, and bee to him as good as an exposition of that case, but that must not hinder his timely and orderly reading, which (all excuses set apart) he must binde himselfe unto, for there bee two things to be avoided by him, as enemies to learning, praepostera lectio,4 and praepropera praxis.5 But let us now heare what our author will say:

“And this seemeth to be good reason.”

Here Littleton sheweth three reasons wherefore the Tenant should not be constrained to doe his service in person.

First, It may be the Tenant is sicke, so as he is neither able to goe nor ride. And ever such construction must be made in matters concerning the defence of the Realme or common good, as the same may be effected and performed. To the former disabilitie may be added where a Corporation aggregateofmany, as Deane and Chapter, Mayor and Communaltie, &c. or an Infant being a Purchaser, for these also must finde an able man. But it may be objected that in these particular Cases the Tenant might finde a man, but not when hee himselfe is able without all excuse or impediment. To this it is answered, that Sapiens incipit à fine.6 And the end of this service is for defence of the Realme, and so it be done by an able and sufficient man, the end is effected.

Secondly, Seeing there are so many just excuses of the Tenant, it were dangerous, and tending to the hindrance of the service, if these excuses should be issuable Multa in jure communi contra rationem disputandi pro communi utilitate introducta sunt.7

Lastly, both Littleton and the Booke in the 7. Edw. 3, giveth the Tenant power, without any cause to be shewed to finde an able and sufficient man, and oftentimes Jura publica ex privato promiscue decidi non debent.8

“an Abbot or other man of Religion,”

Note that if the King had given Lands to an Abbot and his Successours to hold by Knights Service, this had beene good, and the Abbot should doe homage and finde a man., &c. or pay Escuage, but there was no Wardship or Reliefe or other Incident belonging thereunto. And though the Law saith that this was a Mortmaine, that is, that they held fast their Inheritances, yet if the Abbot with the assent of his Covent, had conveyed the land to a natural man and his heires, now Wardship and Reliefe & other Incidents belonged of common right to the Tenure. And so it is, if the King give Lands to a Mayor and Communaltie, and their Successours to be holden by Knights Service. In this case the Patentees (as hath beene said) shall doe no homage, neither shall there be any Wardship or Reliefe, onely they also shall finde a man, &c. or pay Escuage. But if they convey over the lands to any naturall man and his heires, now Homage, Ward, Marriage, and Reliefe, and other Incidents belong hereunto. And yet this possibilitie was remota potentia,9 but the reason hereof is, Cessante ratione legis cessat ipsa lex,10 the reason of the immunitie was in respect of the Body politique, which by the conveyance over ceaseth, which is worthy of observation.

And it is to be observed, that everie Bishop in England hath a Barony, and that Barony is holden of the King in Capite,11 and yet the King can neither have Wardship or Reliefe.

If two Joyntenants be of Land holden by Knights Service, if one goeth with the King, it sufficeth for both, and both of them cannot be compelled to goe, for by their Tenure one man is onely to goe.

If the Tenant peravaile goeth, it dischargeth the Mesne, for one Tenancie shall pay but one Escuage.12

“or other man of Religion,”

Here this word (Religion) is taken largely, viz. not onely for regular, or dead persons, as Abbots, Monks, or the like; But for secular persons also, as Bishops, Parsons, Vicars, and the like, for neither of them are bound to goe in proper person. For nemo militans Deo implicet’ secularibus negotiis.13

“languishing,”

So it may be said of an Ideot, a mad man, a leper, a man maimed, blinde, deafe, of decrepit age, or the like.

“or a feme sole,”

Seeing that a feme sole, that cannot performe Knights Service, may serve by deputie, it may bee demanded wherefore an Heire male being within the age of 21 | yeeres may not serve also by Deputie, being not able to serve himselfe.

To this it is answered, that in cases of Minoritie, all is one to both sexes, viz. if the Heire male be at the death of the Ancestor under the age of one and twentie, or the Heire female under the age of 14. they can make no Deputie, but the Lord shall have wardship as an incident to the Tenure: therefore Littleton is here to be understood of a feme sole of full age, and seised of land holden by Knights Service either by purchase or descent.

“conveniently arrayed for the warre.”

So as here are foure things to be observed.

First, (as hath beene said) that he may finde another.

Secondly, that he that is found must be an able person.

Thirdly, he must be armed at the costs and charge of the Tenant, and herein is to be noted, Quod non definitur in jure,14 with what manner of Armor the Souldier shall be arrayed with, for time, place, and occasion doe alter the manner and kinde of the Armour.

Fourthly, he must have such Armour, as shall be necessarie, andsoappointed in readinesse.

Ferdwit is a Saxon word,15 & significat quietanciam murdri in exercitu.16Worscot is an old English word and signifeth Liberum esse de oneribus armorum.17

It is truly said, Quod miles haec tria curare debet, corpus ut validissimum & pernicissimum habeat, arma apta ad subita imperia, caetera Deo, & imperatori curae esse.18

Sapiens non semper it uno gradu, sed una via, non se mutat sed aptat. Qui secundos optat eventus, dimicet arte non casu. In omni conflictu non tam prodest multitudo quam virtus.19 ,20

Est optimi ducis scire & vincere, & cedere prudenter tempori. Multum potest in rebus humanis occasio, plurimum in bellicis.21 ,22

Quid tam necessarium est quam tenere semper arma quibus tectus esse possis.23 ,24 But I will take my leave of these excellent Authors of Art Militarie, and referre them to those that professe the same, and will returne to Littleton.

“muster.”

I finde this word in the Statute of 18. Hen. 6. cap. 19. and the ancient Militarie Order is worthy of observation, for before and long after that Statute, when the King was to be served with Souldiers for his warre, a Knight or Esquire of the Countrey, that had Revenues, Farmers and Tenants would covenant with the King by Indenture inrolled in the Exchequer to serve the King for such a terme for so many men (specially named in a List) in his warre, etc. an excellent institution that they should serve under him, whom they knew and honoured, and with whom they must live at their returne, these men being mustered before the Kings Commissioners, and receiving any part of their wages, and their names so recorded, if they after departed from their Captaine within the Terme, contrarie to the forme of that Statute, itwasfelony. But now that Statute is of no force, because that ancient and excellent forme of militarie course is altogether antiquated: but latter Statutes have provided for that mischiefe.25

To muster is to make a shew of Souldiers well armed and trained before the Kings Commissioners in some open field. Ubi se ostendentes praeludunt proelio.26 In Latine it is censere, seu lustrare exercitum.27

By the Law before the Conquest Musters and shewing of Armour should be Uno eodem die per universum regnum, ne aliqui possint arma familiaribus & notis accommodare, nec ipsi illa mutuo accipere, ac justitiam Domini Regis defraudare, & Dominum Regem & Regnum offendere.28 ,29

Concerning the point in Law, demurred in judgement, in 7. Edw. 3, here mentioned by our Author: The Law accounteth the beginning of the fortie dayes after the King entreth into the forraine Nation, for then the warre beginneth, and till he come there, he and his host are said to goe towards the warre, and no militarie service is to be done, till the King and his Host come thither.

“Sir William Herle.”

A famous Lawyer constituted Chiefe Justice of the Common Pleas by Letters Patents dated, 2. die Martii anno 5. E. 3. It appeareth by Littleton, and by the Record that he was a Knight, against the conceit of those, that thinke, that the chiefe Justices of the Court of Common Pleas were not knighted till long after.

Our Student shall observe that the knowledge of the Law is like a deep Well out of which each man draweth according to the strength of his understanding. He that reacheth deepest, he seeth the amiable and admirable secrets of the Law, wherein, I assure you, the Sages of the Law in former times, (whereof Sir William Herle was a principall one) have had the deepest reach. And as the Bucket in the depth is easily drawne to the uppermost part of the water, (for Nullum elementum in suo proprio loco est grave),30 but take it from the water, it cannot be drawneupbutwith great difficultie.Soalbeitbeginnings of this studie seeme difficult, yet when the Professor of the Law can dive into the depth, it is delightfull, easie, and without any heavie burthen, so long as he keepe himselfe in his owne proper element.

| “Justice.”

In Glanvil hee is called Justicia in ipso abstracto,31 ,32 as it were Justice it selfe, which appellation remaines still in English and French, to put them in minde of their dutie and functions. But now in legall Latine they are called Justiciarii tanquam justi in concreto,33 and they are called Justiciarii de Banco, &c,34 and never Judices de Banco, &c.

“Common Bank (place)”

Banke is a Saxon word, and signifieth a Bench or high seat, or a Tribunall, and is property applyed to the Justices of the Court of Common Pleas, because the Justices of that Court set there as in a certaine place: for all Writs returnable into that Court are Coram Justiciariis nostris apud Westmon35 or any other certaine place where the Court set, and Legall Records tearme them Justiciarii de Banco. But Writs returnable into the Court called the Kings Bench, are Coram nobis (i. Rege) ubicunque fuerimus in Anglia.36 And all judiciall Records there are stiled Coram Rege. But for distination sake it is called the Kings Bench,37 both because the Records of that Court are stiled (as hath beene said) Coram Rege, and because Kings in former times have often personally set there. For the antiquitie of the Court of Common Pleas they erre, that hold that before the Statute of Magna Charta there was no Court of Common Pleas, but had his Creation by, or after that Charter: for the learned know, that in the six and twentieth yeere of Edward the Third, the Abbot of B. in a Writ of Assize, brought before the Justices in Eire claimed Conusance and to have Writs of Assize, and other originall Writs out of the Kings Court by prescription, time out of minde of man, in the raignes of Saint Edmond, and Saint Edward the Confessor before the Conquest. And on the behalfe of the Abbot were shewed divers allowances thereof in former times in the Kings Courts, and that King Henry the first confirmed their usages, and that they should have Conusance of Pleas, so that the Justices of the one Bench, or the other, should not intermeddle. And the Statute of Magna Charta, erecteth no Court, but giveth direction for the proper jurisdiction thereof in there words. Communia Placita non sequantur Curiam nostram, sed teneantur in aliquo certo loco.38 And properly the Statute saith, non sequantur, for that the Kings Bench did in those dayes follow the King ubicunque fuerit in Anglia, and therefore enacteth that Common Pleas should be holden in a Court resident in acertaine place. In the next Chapter of Magna Charta (made at one and the same time) it is provided:39Et ea quae per eosdem (s. justiciarios itinerantes) propter difficultatem aliquorum articulorum terminari non possunt, referantur ad Justiciarios nostros de Banco, & ibi terminentur.40 And in the next to that, Assisae de ultima praesentatione semper capiantur coram Justiciariis de Banco, & ibi terminentur.41 Therefore it manifestly appeareth, that at the making of the Statute of Magna Charta, there were Justiciarii de Banco, which all men confesse to be the Court of Common Pleas. And therefore that Court was not created by or after that Statute. For the Authoritie of this Court, it is evident by that which hath beene said, that it hath jurisdiction of all Common Pleas. But let us returne to Littleton.

“demurred in judgment.”

A Demurrer commeth of the Latine word Demorari, to abide, and therefore hee which demurreth in Law, is said, he that abideth in Law, Moratur, or Demoratur in lege.42 Whensoever the Counsell learned of the partie is of opinion, that the Court or Plea of the adverse partie is insufficient in Law, then he demurreth or abideth in Law, and referreth the same to the judgment of the Court, and therefore well saith Littleton here, demurre en judgement, the words of a Demurrer being Quia narratio, &c. materiaque in eadem contenta minus sufficiens in lege existit, &c,43 and so of a Plea, Quia Placitum, &c. materiaque in eodem contenta minus sufficiens in lege existit, &c. unde pro defectu sufficientis narrationis sive placiti, &c. petit judicium, &c.44 But if the Plea be sufficient in Law, and the matter of fact be false, then the adverse partie taketh issue thereupon, and that is tried by a Jurie, for matters in Law are decided by the Judges, and matters in fact by Juries, as elsewhere is said more at large.

Now as there is no issue upon the fact, but when it is joyned betweene the parties, so there is no Demurrer in Law, but when it is joyned, and therefore when a Demurrer is offered by the one partie as is aforesaid, the adverse partie joyneth with him, (for example) saith, Quod Placitum praedictum, &c. materiaque in eodem contenta bonum & sufficiens in lege existunt, &c. & petit judicium,45 and thereupon the Demurrer is said to be joyned, and then the Case is argued by Councell learned of both sides, and if the points be difficult, then it is argued openly by the Judges of that Court,46 and if they or the greater part concurre in opinion, accordingly judgment is given, and if the Court be equally divided, or conceive great doubt of the Case, then may they adjourne it into the Exchequer Chamber, where the Case shall be argued by all the Judges of England,47 where if the Judges shall be equally divided, then (if none of them change their opinion) it shall be decided at the next Parliament by a Prelate, two Earles, and two Barons which shall have power and commission of the King in that behalfe, and by advice of themselves, the Chancellor, Treasurer, the Justices of | the one Bench and the other, and other of the Kings Councell, as many and such as shall seeme convenient, shall make a good judgment, &c.48 And if the difficulty be so great as they cannot determine it, then it shall be determined by the Lords in the upper house of Parliament. See the statute, for it extends not onely to the case abovesaid, but also where judgements are delayed in the Chancery, Kings bench, Common bench, and the Exchequer, the Justices assigned, and other Justices of Oyer and Terminer, sometime by dificulty, sometime by divers opinions of Justices, and sometime for other causes. (a)49 Before which Statute, if judgements were not given by reason of difficulty, the doubt was decided at the next Parliament, (which then was to be holden once every yeere at the least)(b)50Siautemtalianunquam prius evenerint, & obscurum & difficile sit eorum judicium, tunc ponatur judicium in respectum usque ad magnam curiam, ut ibi per concilium curiae terminentur.51 But hereof thus much shall suffice. (r)52 He that demurreth in Law confesseth all such matters of fact as are well and sufficiently pleaded. If there be a demurrer for part and an issue for part, the more orderly course is to give judgement upon the demurrer first, but yet it is in the discretion of the Court to try the issue first if they will. After demurrer joyned in any Court of Record, the Judges shall give judgement according as the very right of the cause and matter in Law shall appeare, without regarding any want of forme in any Writ, Returne, Plaint, Declaration, or other pleading Proces, or course of proceeding, except those only which the party demurring shall specially and particularly set downe and expresse in his demurrer. (a)53 Now what is substance and what is forme you shall reade in my Reports.

And in some cases a man shall alleage special matter, and conclude with a Demurrer, (b)54 as in an action of trespasse brought by I.S. for the taking of his horse, the defendant pleads that he himselfe was possessed of the horse until he was by one I. S. dispossessed, who gave him to the plaintife, &c. the plaintife saith that I. S. named in the barre, and I. S. the plaintife were all one person, and not divers; and to the plea pleaded by the defendant in the manner, he demurred in Law and the Court did hold the plea and demurred good, for without the matter alleaged he could not demurre. Now as there may be a demurrer upon counts and pleas, so there may be of Aid prier, Voucher, Receipt, waging of Law, and the like. (c)55 By that which hath beene said it appeareth, that there is a general demurrer, that is, shewing no cause, and a speciall demurrer which sheweth the cause of his demurrer. Also by that which hath beene said, there is a demurrer upon pleading, &c. and there is also a demurrer upon evidence. (d)56 As if the plaintife in evidence shew any matter of Record, or Deeds, or Writings, or any sentence in the Ecclesiasticall Court, or other matter of evidence by testimony of witnesses, or otherwise, whereupon doubt in Law ariseth, and the defendant offer to demurre in Law thereupon, the plaintife cannot refuse to joyne in demurrer no more than in a demurrer upon a count, replication, &c. and so E converso, may the plaintiff demurre in Law upon the evidence of the defendant.

But if evidence for the King in an Information or any other suit be given, and the Defendant offer to demurre in Law upon the Evidence, the Kings counsell shall not be inforced to joyne in Demurrer:57 but in that case, the Court may direct the Jury to finde the speciall matter.

“in judgment.”

For the signification of this word, Vide Sect. 366.

[1. ]Tr. 7. E. 3. fol.29.

[2. ][Ed.: if he will perform it in his own person, or by some other good man if for reasonable cause he is unable to do it himself.]

[3. ][Ed.: for reasonable cause.]

[4. ][Ed.: preposterous reading.]

[5. ][Ed.: premature practice.]

[6. ][Ed.: A wise man begins with the last.]

[7. ][Ed.: Many things have been introduced into the common law, with a view to the public good, which are inconsistent with sound reason.]

[8. ][Ed.: Public Rights ought not to be decided promiscuously with private.]

[9. ][Ed.: a remote possibility.]

[10. ][Ed.: When the reason of the law ceases, the law itself ceases,]

[11. ][Ed.: in chief,]

[12. ]6. H. 3. Avowrie 242. F.N.B. 83. 84.

[13. ][Ed.: No one serving God should be wrapped up in secular affairs.]

[14. ][Ed.: That it is not defined in law.]

[15. ]Fleta lib, I. cap. 42.

[16. ][Ed.: and it signifies an acquittal of murder in battle.]

[17. ][Ed.: To be free of the burdens of arms.]

[18. ]Livius. [Ed.: That a knight ought to care for three things: that he should have a stout and agile body, arms apt to be taken up for the empire, [and thirdly] to take care for God and the emperor.]

[19. ]Vegetius.

[20. ][Ed.: The wise man does not always go with one step, but goes one way; does not change himself, but adapts.]

[21. ]Polybius.

[22. ][Ed.: It is for the best leader to understand and conquer, and prudently to give way to opportunity. Chance has much influence on human affairs, even more in war.]

[23. ]Vegetius.

[24. ][Ed.: What is so needful as always to bear arms, with which you may be protected?]

[25. ]Lib. 6. fol. 27. the Souldiers case.

[26. ][Ed.: Where by showing themselves they make a prelude to battle.]

[27. ][Ed.: to assess or review the army.]

[28. ]Lamb. fol. 135. b.

[29. ][Ed.: On one same day throughout the realm, so that no one should be able to lend arms to his servants and friends, nor to borrow them, and defraud the lord king’s justice and offend the king and the realm.]

[30. ][Ed.: No element in its own place is heavy.]

[31. ]Glanvile lib. 2. cap. 6. &c.

[32. ][Ed.: Justice, in its abstract form.]

[33. ][Ed.: Justices, just men as it were in concrete form.]

[34. ][Ed.: Justices of the Bench, etc.]

[35. ][Ed.: Before our justices at Westminister.]

[36. ][Ed.: before ourself (that is, the king) wheresoever we shall then be in England.]

[37. ]26. Ass. p. 24. 4. E. 3. fo, 19. Bracton lib. 3. fol. 105b. Britton fol. I. & 2 Fleta lib. 2. cap. 2. Mirror. cap 5 Sect. 1. Fortescue cap. 51. See in the preface to the third part of my Reports.

[38. ][Ed.: Common pleas shall not follow our court but shall be held in some certain place.]

[39. ]Mirror. cap. 5. sect. 2. Fleta lib. 2. cap. 54.

[40. ][Ed.: And those things which cannot be determined before them (that is, the justices in eyre), on account of the difficulty of some points, shall be referred to our justices of the Bench and determined there.]

[41. ][Ed.: Assizes of darrein presentment shall always be taken before the justices of the Bench, and determined there.]

[42. ][Ed.: he dwells or demurs in law.]

[43. ][Ed.: which count, etc., and the matter contained in the same, is insufficient in law, etc.]

[44. ][Ed.: because the plea, etc., and the matter contained in the same, is in sufficient in law, etc., wherefore for want of a sufficient count (or plea), etc. he prays judgment, etc.]

[45. ][Ed.: that the aforesaid plea, and the matter contained in the same, are good and sufficient in law, etc.; and he prays judgment.]

[46. ]Vid. Bract. lib. 5. fo. 352.b.

[47. ]14. E. 3. cap. 5. statute. 1.

[48. ]Rot. Parlia. 14. E. 3. ca. 3. a proceeding in Sir John Stantons case upon difficultie in the Court of Common Pleas. Vide Britton fol. 41. 21. E. 3. 37. 38. 39. E. 3. 1. 21. 35. 40. E. 3. 34. 13. H. 4. 3. 4.

[49. ](a) 4. 3. c.14.

[50. ](b) Bracton lib. 1 cap.2. nu. 7. Brit. fol. 41. I. E. 3. 7. 8. 2. E. 3. 5. 7.

[51. ][Ed.: But if such things have never happened before, and their judgment is obscure and difficult, then the judgment shall be put in respite until the great court, and there they may be determined by advice of the court.]

[52. ](c) 17. E. 3. 50. 6. 47. E. 3. 13. 14. 5. H. 7. 1. 13. b. 4. 7. b. Pl. Com. 85. 411. 172. 48. E. 3. 15. 2. R. 2. inquest. 2. 38. E. 3. 25. 11. H. 4. 5. 75. 3. E. 4. 2.

[53. ](a) Lib. 3. fol. 57.Linc. Coll. case Lib. 5. fol. 74.Wymeke case. Lib. 10. fol. 88.usque. 9th. Doctor Leyfields case.

[54. ](b) 12. E. 4. 7. 31. E. 3. estoppel. 244 33. H. 6. 9. 10. 22. E. 4. 50. I. H. 7. 21.

[55. ](c) 14 H. 4. 31. 37. H. 6.6.

[56. ](d) Lib. 5. fol. 104. 2. Bakers case.

[57. ](e) 38. H. 8. Dyer.53.