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Front Page  Titles (by Subject) Section 138 Frankalmoin, part 5 - Selected Writings of Sir Edward Coke, vol. II
Section 138 Frankalmoin, part 5 - 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 138
Frankalmoin, part 5
| Also if it be demanded, if tenant in frankmarriage shall doe fealtie to the donor or his heires before the fourth degree be past, &c. it seemeth that he shall, for he is not like as to this purpose to tenant in frankalmoigne, for tenant in frankalmoign by reason of his tenure shall doe divine service for his Lord, (as is said before) and this he is charged to doe by the Law of holy Church, and therefore he is excused and discharged of fealty, but tenant in frankmarriage shal not doe for his tenure such service, and if he doth not fealty, he shall not doe any manner of service to his Lord neither spirituall nor temporall, which would be inconvenient and against reason, that a man shall be tenant of an estate of inheritance to another, and yet the Lord shall have no manner of service of him, and so it seemes he shall doe fealty to his Lord before the fourth degree be past. And when he hath done fealty, he hath done all services. “which would be inconvenient.”
An argument drawne from an inconvenience, is forcible in Law, as hath been obser-|-ved before, and shall be often hereafter. Nihil quod est inconveniens, est licitum. , And the law that is the perfection of reason, cannot suffer any thing that is inconvenient.
It is better, saith the laws, to suffer a mischiefe (that is pecultar to one) than an inconventence that may prejudice many: See more of this after in this Chapter.
Note, the reason of this diversity, betweene Frankalmoigne and Frankmarriage, standeth upon a maine maxime of Law, that there is no land, that is not holden by some service spirituall or temporall, and therefore the donee in Frankmarriage shall doe realty, for otherwise he should doe to his Lord no service at all, and yet it is Frankmarriage, because the Law createth the service of Fealty for necessity of reason, and avoiding of an inconvenience. But tenant in Frankalmoigne both spirituall and divine service, which is within the said Maxime and therefore the Law will not cohort him to doe any temporall service. See the next session.
“and against reason,”
And this is another strong argument in Law, Nihil quod est contra rationem est licitum. For reason is the life of the Law, nay the common Law it selfe is nothing else but reason, which is to be understood of an artificiall perfection of reason, gotten by long study, observation, and experience, and not of every mans naturall reason, for, Nemo nascitur artifex. This legall reason, est summa ratio. And therefore if all the reason that is dispersed into so many severall heads were united into one, yet could he not make such a Law as the Law of England is, because by many successions of ages it hath been fined and refined by an infinite number of grave and learned men, and by long experience growne to such a perfection, for the government of this Realme, as the old rule may be justly verified of it, Neminem oportet esse sapientiorem legibus: No man (out of his owne private reason) ought to be wiser than the Law, which is the perfection of reason.
V. Sect. 87. 139. 201. 269. 440. 478. 655. 722
[Ed.: Nothing that is inconvenient is lawful.]
40. Ass. 27.
Littleton fo. 50. b. 42. Edw. 3. 5. 28. Edw. 3. 395. 20. Hen. 6. 28.
[Ed.: Nothing that is against reason is lawful.]
[Ed.: No one is born an artificer.]
[Ed.: is the highest reason.]
[Ed.: No man ought to be wiser than the laws:]
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