- 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
Descents, part 27
| Also it is said that if a man be seised of Lands in fee by occupation in time of warre, and thereof dyeth seised in the time of warre, and the tenements descend to his heire, such discent shall not oust any man of his entry, and of this a man may see in a Plea upon a Writ of Aiel, 7.E.2.
“by occupation in time of Warre,”
First it is necessary to bee knowne, what shall bee said, Time of peace, Tempus pacis: and what shall bee said, Tempus belli, sive guerrae, time of warre. Tempus pacis est quan-|-do Cancellaria & aliae Curiae Regis sunt apertae, quibus lex fiebat cuicunque prout fieri consuevit. , And so it was adjudged in the case of Roger Mortimer, and of Thomas Earle of Lancaster. Utrum terra sit guerrina necne, naturaliter debet judicari per recorda Regis, et eorum, qui curias Regis per legem terrae custodiunt, & gubernant, sed non alio modo. ,
And therefore when the Courts of Justce be open, and the Judges and Minsters of the same may by Law protect men from wrong and violence, and distribute Justice to all, it is said to be time of peace. So, when by invasion, Insurrection, Rebellions, or such like, the peaceable course of Justice is disturbed and stopped, so as the Courts of Justice bee as it were shut up, Et silent leges inter arma, then it is said to be time of war. And the tryall hereof is by the Records, and Judges of the Court of Justice, for by them it will appeare, whether Justice had her equall course of proceeding at that time or no, and this shall not be tried by Jury.
If a man be disseised in time of peace, and discent is cast in time of warre, this shall not take away the entry of the disseisee.
Item tempore pacis, quod dicitur ad differentiam eorum quae fuerunt tempore belli, quod idem est, quod tempore guerrino, quod nihil differt a tempore juris, & injuriae, est enim tempus injuriae, cum fuerunt oppressiones violentae quibus resisti non potest, & disseisinae injustae. ,
So as hereby it also appeareth, that time of peace is the time of law and right, and time of warre is the time of violent oppression, which cannot be resisted by the equall course of Law. And therefore in all reall actions, the expleas, or taking of the profits are laid Tempore pacis, for if they were taken Tempore belli, they are not accounted of in Law.
Occupation is a word of Art, and signifieth a putting out of a mans Freehold in time of warre, and it is all one with a disseisin in time of peace, saving that it is not so dangerous, as it appeareth have by Littleton, and therefore the Law gave a writ in that case of Occupavit, so called, by reason of that word in the Writ, in stead of disseisivit, in the Assise of Novel dissesin, if the dessesin had beene done in time of peace, whereby it appeareth, how aptly both in this, and in all other places, Littleton thorow his whole Booke speaketh. But albeit Occupatio whereof Littleton here speaketh, is used only in the said Writ, and in none other, (that I can finde or remember) yet hath it been used commonly in Conveyances and Leases, to limit or make certaine precedent words ad tunc in tenura & occupatione. But occupaitio is applyed to the possession, be it lawfull or on unlawfull; It hath also crept into some Acts of parliament, as 4 H. 7.cap. 19. 39. Eliz. cap. 1 and others, and occupare, is sometime taken to conquer.
“and of this a man see in a Plea upon a Writ of Aiel, [year] 7.E.2.”
Hereby it appeareth, that ancient termes or yeares, after the example of Littleton, are to bee cited and vouched, for confirmation of the Law, albeit they were never printed, and that of those yeares, those especially of E. 1. H. 3. &c. are worthy of the reading and observation, a great number of which I have sene and observed, which in mine opinion doe give a great light, not onely to the understanding and reason of the Common Law, (which Fitzherbert either saw not, or were by him omitted) but also to the true exposition of the ancient Statutes, made in those times, yet mine advice is, that they be read in their time: for after our Student is enabled and armed to set on our yeere Bookes, or reports of the Law, let him reade first the latter reports, for two causes: First, for that for the most part the latter Judgements and Resolutions are the surest, and therefore it is the best to season him with them in the beginning, both for the settling of his judgement, and for the retaining of them in memory. Secondly, for that the latter are more facile and easier to be understood, than the more ancient: but after the reading of them, then to read these others before mentioned, and all the ancient Authors that have written of our Law; for I would wish our Student to be a compleat Lawyer. But now to returne. As it is in case of discent, so it is in case of presentation, for no usurpation in time of warre putteth the right Patron out of possession, albeit the incumbent come in by institution and induction: And time of war doth not only give priviledge to them that be in warre, but to all others within the Kingdome, and although the admission and institution be in time of peace, yet if the presentment were in time of warre, it putteth not the right Patron out of possission.
[Ed.: Time of peace.]
[Ed.: Time of war.]
Inter brevia de anno 1 E. 3. parte 1. & Pasch. 28 E. 3. inter adjudicata coram rege, lib. 2. fol. 37. in Thesaur. Pasch. 39 E 3. inter adjudicta coram rege in Thesaur. lib. 2. fol. 92.
[Ed.: Time of peace is when the Chancery and other king’s courts are open, whereby the law may be done to everyone in the usual way.]
[Ed.: Whether a land is at war or not ought naturally to be adjudged by the records of the king and of those who keep and govern the king’s courts by the law of the land, but not in any other way.]
14 E. 3. tit. Scire facias, 122. but more fully in the record at large
[Ed.: And amidst the clash of arms the laws are silent,]
[Ed.: Also in time of peace, which is so called to distinguish it from time of war, which is the same as wartime, and this is no different from time of right and time of wrong; for it is a time of wrong when there are violent oppressions which cannot be resisted, and wrongful disseisins.]
Bracton, lib. 4. fol. 240
Ingham cap. de novel disseisin.
[Ed.: Writ for recovery in peace of land taken during war.]
[Ed.: out of his land or tenement in time of war.]
Lib. 4. fol. 49, 50. Ognel’s case.
[Ed.: then in the tenure and occupation.]
6 E. 3. 41. 7. E. 3 darr. pres. 2. 18 E. 2. quare imp. 175 F. N. B. 31.