- 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
Knight’s Service, part 6
| Note, it hath been a question, how these words shall bee understood.(Siparentes conquerantur.)
And it seemeth to some who considering the Statute of Magna Charta, which willeth, Quod haeredes maritentur absque disparagatione, &c. Upon which, this Statute of Merton upon this point is founded, that no action can be brought upon this Statute, insomuch as it was never seene or heard, that any action was brought upon the Statute of Merton for this disparagement against the Gardian for the matter aforesaid, &c. And if any action might have been brought for this matter, it shall bee intended that at some time it would have been put in ure. And note that these words shall bee understood thus, Si parentes conquerantur, id est, si parentes inter eos lamententur, which is as much to say, as if the Cousins of such Infant have cause to make lamentation or complaint amongst themselves, for the shame done to their Cousin so disparaged, which in manner is a shame to them, then may the next Cousin to whom the inheritance cannot descend, enter and ouste the Gardein in Chivalrie. And if he will not, another cousin of the Infant may doe this, and take the issues & profits to the use of the Infant, & of this to render an account to the Infant when he comes to his full age: or otherwise the Infant within age may enter himselfe & ouste the Gardein, &c. Sed quaere de hoc.
“the Statute of Magna Charta,”
Though it be in forme of a | Charter, yet being granted by assent and authoritie of Parliament, Littleton here saith it is a Statute.
This Parliamentarie Charter hath divers appellations in law. Here it is called Magna Charta, not for the length or largenesse of it (for it is but short in respect of the Charters granted of private things to private persons now adayes being (Elephantinae Chartae) but it is called the great Charter in respect of the great weightinesse and weightie greatnesse of the matter contained in it in few words, being the fountaine of all the fundamentall lawes of the Realme, and therefore it may truly be said of it, that it is magnum in parvo. It is in our Bookes called Charta libertatum,et Communis libertas Angliae, or Libertates Angliae. Charta de liberratibus, Magna Charta, &c. And well may the Lawes of England be called Liberrates, quia liberos faciunt.Magna fuit quondam magnae reverentia Chartae.
This Statute of Magna Charta, is but a confirmation or restitution of the Common Law, as in the Statute called Confirmatio chartarum,Anno 25. Edw. 1. it appeareth by the opinion of all the Justices; and in 5. Hen. 3. tit. Mord. 53. Magna Charta is there vouched, for there it appeareth, that King John had granted the like Charter of renovation of the ancient Lawes
This Statute of Magna Charta hath beene confirmed above thirty times and commanded to bee put in execution, By the Statute of 25. Edw. 1. c. 2 judgements given against any points of the Charters of Magna Charta or Charta de Forests are adjudged void. And by the Statute of 42. Edw. 3. cap. 3. If any Statute bee made against either of these Charters it shall be voyd.
“considering the Statute of Magna Charta, Upon which, this Statute of Merton upon this point, is founded. Quod haeredes maritentur absque disparagatione,” “founded,”
So as Magna Charta is the foundation of other Acts of Parliament. This Act extendeth as well to females as to males.
“no action can be brought upon this Statute, insomuch as it was never seene or heard . . . &c. And if any action might have been brought for this matter, it shall bee intended that at some time it would have been put in ure.”
Hereby it appeareth how safe it is to be guided by judiciall presidents the rule being good,Periculosum existimo quod benorum virorum non comprobatur exemplo. And as usage is a good Interpreter of Lawes, so non usage where there is no example is a great intendment, that the Law will not beare it; for saith Littleton, If any Action might have beene grounded upon such matter, it shall be intended that sometime it should have beene put in ure. Not that an Act of Parliament by non User can be antiquated or lose his force, but that it may be expounded or declared how the Act is to be understood.
“Si parentes conquerantur,”
Of this sufficient hath beene said before.
“if the Cousins”
Here Littleton expoundeth Parents to be his Cousins, under which name of Cousins Littleton includeth Uncles and other Cousins, who when the Father is dead are in loco parentum.
“have cause to make lamentation,”
Note if they have cause to make, lamentation on, it sufficeth, though they complaine.
“for the shame done to their Cousin.”
For when their Cousin is disparaged in his marriage, it is not onely a shame and infamie to the heire, but in him to all his bloud and kindred.
“then may the next Cousin to whom the inheritance cannot descend, enter and ouste the Gardein in Chivalrie.”
This is worthy the observation, for the words of the Statute are generall, Secundum dispositionem parentum, and the construction thereof shall be according to the reason of the Common Law, for the next Cousin, to whom the inheritance cannot descend, shall enter and ouste the Gardian, and shall be in place of a Gardian, as it is in case of a Gardian in socage.
“And if he will not, another cousin of the Infant may doe this.”
Still pursuing the reason of the Common Law in case of Gardian in Socage.
“and take the issues & profits to the use of the Infant, &c.”
This is so evident as it needeth no explaination.
“or otherwise the Infant within age may enter himselfe & ouste the Gardein.”
If none of the Cousins aforesaid will enter, then the heire himself may enter. In all which the reason of the Common Law is pursued. But what if the heire be disparaged, and the next of kin doth enter, and when the heire commeth to 14 hee agreeth to the marriage; yet shall not this give any advantage to the Lord, for that he had lost the Wardship before.
[Ed.: if the relatives complain.]
[Ed.: that heirs shall be married without disparagement etc.]
[Ed.: if the relatives complain, that is, grumble among themselves.]
[Ed.: but query concerning this.]
9. H. 3.
Vide Lib. 8. the Princes case.
[Ed.: Elephantine Charter.]
Bracton, 414. & 291. Fleta, lib. 2. cap. 48. & lib. 3. cap. 3. Mirror, cap. 2. § 18. Britton, fol. 177. b.
[Ed.: libertates (liberties), because they make men liberos (free).]
[Ed.: Great was once the reverence of Magna Carta (the great charter).]
[Ed.: The Confirmation of the charters, a statute accepting Magna Carta as the Common Law, and declaring void judgements contrary to it.]
25. Edw. 1.
5. Hen. 3. Mord. 53. Math Paris, 246. 276. 248.
25. Edw. 1. cap. 2.
42. Edw. 5. cap. 1.
[Ed.: that heirs shall be married without disparagement,]
Vide Petitiones coram Domino Rege in Parliamento, fol. 3. 18. Hen. 6. 39. Hen. 6. 39. per Ashton 6. Eliz. Dier, 229. 23. Eliz. Dier. Nullum breve de errore de judicio in 5. port, quia nullum breve repetitur. 3. Edw. 3. 50. 11. Hen. 4. 7. & 38.
[Ed.: I consider that dangerous which is not approved by the example of good men.]
Vide Le statute de Marlebridge, cap. 27. In custodia parentum.
[Ed.: In the place of a parent; instead of a parent; charged with a parent’s rights, duties, and responsibilities.]
[Ed.: according to the disposition of the relatives.]