- 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
| Cap. VI.
Of Felony by Conjuration, Witchcraft, Sorcery, or Inchantment.
The first Act of Parliament that made any of these offences felony, was the statute a of 33 H.8. which was repealed by the statutes of 1 E.6. cap.12. and 1 Mariae. But b before the Conquest it was severely punished: sometimes by death, sometimes by exile, &c. c And after, it was made felony by the statute of 5 Eliz. and againe by 1 Jac. which repealeth 5 Eliz.
A Conjurer is he that by the holy and powerfull names of Almighty God invokes and conjures the Devill to consult with him, or to do some act.
A Witch is a person that hath conference with the Devill, to consult with him or to do some act.
An Inchanter, Incantator, is he, or she qui carminibus, aut cantiunculis Daemonem adjurat. They were of ancient time called Carmina, because in those dayes their Charmes were in verse,
- Carminibus Circe socios mutavit Ulyssis,
- By Charmes in Rhyme (O cruell Fates!)
- Circe transform’d Ulysses mates.
- Carmina de Coelo possunt detrudere Lunam,
- By Rhymes they can pul down full soon,
- From lofty sky the wandring Moon.
*A sorcerer, sortilegus, quia utitur fortibus in cantationibus daemonis. Thou shalt not suffer a witch to live.Non est augurium in Jacob, nec divinatio in Israel. And the Holy Ghost hath compared the great offence of rebellion to the sinne of witchcraft.
And here it justly may be demanded, what punishment was against these devilish and wicked offenders before these statutes, which were made of very late time.
And it appeareth by our ancient d books that these horrible and devilish offenders, which left the everliving God, and sacrificed to the devill, and thereby committed idolatry, in seeking advice and aide of him, were punished by death. * The Mirror saith, Que sorcery et devinal sont members de heresie. And there he describeth heresie. Heresie est un maeuvase et faux creance surdant de error en la droit foy Christien: and after saith, Le judgment de heresie est de arse in cendre. And herewith agreeth Britton: Sorcerers, sorceresses, &c. et miscreants soient arses. And Fleta: Christiani autem apostatae, fortilegi, et hujusmodi detractari debent, et comburi. And burning then was, and yet is the punishment for hereticks. So as the conusance of these offences, if they be branches of heresie, (as the law was then taken) belonged (as to this day heresie doth) to ecclesiasticall judges. In which case when they have given sentence, there lieth a writ de haeretico comburendo.
I have seen a report of a case in an ancient Register, that in October anno 20 H.6. Margery Gurdeman of Eye, in the county of Suffolk, wasforwitchcraft and consultation with the devill, after sentence and a relapse, burnt by the king’s writ de haeretico comburendo.e And this agreeth with antiquity, for witches, &c. by the laws before the conquest were burnt to death.
A man was taken in Southwark with a head and a face of a dead man, and with a book of sorcery in his male, and was brought into the king’s bench before Sir John Knevett then chief justice: but seeing no indictmentwasagainst him, the clerks did swear him, that from thenceforth * he should not be a sorcerer, and was delivered out of prison, and the head of the dead man and the book of sorcery were burnt at Tuthill at the costs of the prisoner. So as the head and his book of sorcery had the same punishment, that the sorcerer should have had by the ancient law, if he had by his sorcery praied in aid of the devill.
The holy history hath a most remarkable place concerning the reprobation and death of king Saul.Mortuus est ergo Saul propter iniquitates suas, eò quòd praevaricatus sit mandatum Domini, et non custodierit illud,*sed insuper Pythonissam consuluerit, nec speraverit in Domino, propter quod interfecit eum, et transtulit regnum ejus ad David filium Isai. So Saul died for his transgression which he committed against the Lord, even against the word of the Lord which he kept not: And also for asking counsell of one that had a familiar spirit, to enquire of it, and enquired not of the Lord; therefore he flew him, and turned the kingdome unto David the sonne of Isai.
Therefore it had been a great defect in government, if so great an abomination had passed with impunity. And this is the cause, that we have proved how and in what manner conjuration, witchcraft, &c. were punishedby death, &c. before the making of the said late statutes.
But now let us peruse the statute made in the first year of king James, which only standeth in force, and divideth itself into five severall branches.
¶ 1. If any person or persons shall use, practice, or exercise any Invocation or Conjuration of any evill and wicked Spirit.
Here the Devill by the holy, and powerfull names of Almighty God is invoked (as hath been said): and this invocation, or conjuration, of a wicked Spirit is felony without any other act or thing, save only the apparition of the spirit. See W.1. cap 1. in the Oath of the Champion, &c.
¶ 2. Or shall consult, covenant with, entertaine, employ, feed, or reward, any evill or wicked Spirit, to, or for any intent or purpose.
By this branch, if any consult, &c. (howsoever the wicked spirit appeareth and commeth) these actions (here mentioned) with or to that wicked spirit, to or for any intent or purpose, is felony without any other act or thing.
¶ 3. Or take up any dead man, woman, or childe, out of his, her, or their grave, or any other place where the dead body resteth, or the skin, bone, or any part of a dead person, to be imployed or used in any manner of Witchcraft, Sorcery, Charme, or Inchantment.
Albeit the offender that commits these barbarous, and inhumane dealingswith the bodies of the dead, do not actually imploy or use them in witchcraft, sorcery, charme, or inchantment: yet if he did them of purpose to use therein, it is felony, for the words of this branch be, [to be imployed or used in any matter of witchcraft, &c.]
¶ 4. Or shall use, practice, or exercise any Witchcraft, Inchantment, Charme or Sorcery, whereby any person shall be killed, destroyed, wasted, consumed, pined, or lamed, in his, or her bodie, or any part thereof.
By this branch, no other witchcraft, inchantment, charme, or sorcery (then is before specified) is felony, unlesse by means thereof some person be killed, destroied, wasted, consumed, pined, or lamed, &c. Which words have reference only to this last generall clause.
¶ 5. That then every such offender or offenders, their aiders, abetters, and counsellors, being of any the said offences duly and lawfully convicted, and attainted, shall suffer paines of death, as a felon, or felons, and shall lose the priviledge, and benefit of Clergie and sanctuary.
Albeit accessories before be here specially named, yet accessories after may be of this felony, as afterwards is said upon the statute of 3 H.7. for taking away of women, and upon the statute of 8 H.6 for stealing of Records.
The second part of this Act concerneth Felony in a second degree; and the branches thereof are also in number Five.
| ¶ 1. If any person, or persons take upon him or them by Witchcraft Inchantment, Charme, or Sorcery, to tell or declare, in what place any treasure of gold or silver should or might be found, or had in the earth, or other secret places.
The mischiefs before this part of this Act was: That divers Impostors, Men and Women would take upon them to tell, or do, these Five things here specified, in great deceipt of the people, and cheating and cousening them of their money, or other goods. Therefore was this part of the Act made, wherein these words [take upon him or them] are very remarkable. For if they take upon them, &c. though in truth they do it not, nor can do it, yet are they in danger of this first branch.
¶ 2. Or where goods, or other things lost, or stolen should be found or become.
Herein they become offenders, if they take upon them as aforesaid. And note, the taking upon them, to tell and declare, governe both these branches.
¶ 3. Or to the intent to provoke any person to unlawfull love.
Herein also they become offenders, by taking upon them, as is aforesaid. Here is the change of a new Verbe, viz. [to provoke] So as the sense is, If any person or persons shall take upon him or them by witchcraft, inchantment, charms or sorcery, to the intent, to provoke any person to unlawfull love.
¶ 4. Or whereby any cattell or goods of any person shall be destroyed.
The Letter of this branch is this: If any person shall take upon him by witchcraft, inchantment, charm, or sorcery, whereby any cattell or goods of any person should be destroyed. Although this be not sententious, yet the meaning thereof is to be taken, by supplying these words after sorcery [any thing] and not to turn [destroyed] into the Infinitive Mood, as the rest be, for then it satisfieth not the meaning of the makers: for a taking upon them to destroy cattell, &c. if they be not destroyed, is not within the danger of this Act, and therefore must be supplyed as is aforesaid.
¶ 5. Or to hurt or destroy any person in his or her body, although the same be not effected or done.
As in the case of cattell or goods, the destruction must be (as is aforesaid) effected and done: so in case of the person of man, woman, or childe, though the hurt be not effected, or done; yet is the taking upon him, &c. to hurt or destroy any person. &c. within this branch.
¶ Being therefore lawfully convicted.
Here [convicted] is taken in a large sense for attainted, and the rather, for that after in this Act the words be [Lawfully convicted and attainted, as isaforesaid.]
¶ Shall for the said offence, &c.
Here are expressed the punishments inflicted upon these Impostors, Mountebanks, and cheating Quacksalvers, viz. 1. To suffer imprisonment by the space of a whole year without bail or mainprize. 2. Once every quarter of the year these Mountebanks are to mount the Pillory, and to stand thereupon in some Market Towne six houres, and there to confesse his or her error, and offence.
¶ And if any person being once convicted of the same offences, &c.
Here is also [convicted] taken for attainted, for he shall not be drawn in question for the second offence, to make it felony, till judgement be given against him for the first; for the Indictment of felony recites the former attainder, and the second offence must be committed after the judgement. And so it is in the case of Forgery upon the statute of 5 Eliz. and in case of conveighing of Sheep alive out of this Realme, and some others.
¶ Saving to the wife of such person as shall offend in any thing contrary to this Act, her title of dower, and also to the heire and suc-|-cessor of every person, his or their titles of inheritance, succession, and other rights, as though no such attainder of the Ancestor or Predecessor had been made.
The judgement against a felon is, that he be hanged by the neck untill he be dead: and albeit nothing else is expressed in the judgement, yet by the Common law many things are therein implied; as the losse of his wives Dower, the losse of his inheritance, corruption of his blood, forfeiture of his goods, &c. Now a saving will serve for any thing, that is implied in the judgement, as in this case for the wives Dower, and also for the heirs inheritance, and for all the rest of the things implied in the judgement. But a saving will not serve against the expresse judgement in case of felony, for that should be repugnant; as saving the life of the offender should be void, because it is repugnant to the expresse judgement, viz. that he be hanged by the neck untill he be dead. Also where the saving is to the heir, it is well saved by the name of the heir, because notwithstanding the forfeiture implied in the judgement, his inheritance is saved, and by consequent the blood not corrupted, for if the blood were corrupted, he could not inherit as heir, but notwithstanding this saving the lands are forfeited during his life.
The statute at 5 Eliz. for preservation of the wives Dower, and the heirs inheritance, in case of forgery, is penned in this form. Provided alway, that such attainder of felony shall not in any wise extend to take away the Dower of the wife of any such person attaint: nor to the corruption of blood, or disherison of any heir or heirs of any such person attaint.
The words of the statute of 8 Eliz. be, Provided always that this Act shall not extend to corruption of blood, or be prejudiciall or hurtfull to any woman claiming Dower by or from any such offender, &c. Wherein it is to be observed, that by the avoidance of corruption of blood, the inheritance is impliedly saved. See the manner of the penning of the Act of 31 Eliz. concerning this matter and divers others.
And surely it is very convenient that when new felonies be made by Act of Parliament, that such savings or provisions be made both for the wives Dower, and the heirs inheritance, as were had and made in these presidents.
a 33 H. 8. ca. 8. 1 E. 6. cap. 12.
b Inter leges Alveredi fo. 23. Edwardi & Guthruni, cap. 11. Ethelstani, ca. 6. Canuti. 4,5.
c 5 Eliz. ca. 16. 1 Jac. cap. 12. A Conjurer deseribed.
A Witch described.
An Inchanter described.
[Ed.: who calls up an evil spirit with incantations or chants.]
[Ed.: Circe transformed Ulysses’ companions by incantations.]
[Ed.: By incantation they can pull down the moon from the sky.]
*A sorcerer described.
[Ed.: a fortune teller that uses the power of incantations to demons.]
Exod. cap. 22. 17. Deut. ca. 18. 10, 11, 12. Num. ca. 23. 23. 1 Reg. ca. 15. 23.
[Ed.: There is no enchantment against Jacob, nor divination against Israel.]
d Linewood de officio arch-presb. § Ignorantia.
*Mir. cap. 1. §. 5. & cap. 2. § 12. & cap. 4. § De majestie. Brit. fo. 16 b. & 71. F. N. B. 269. b.
[Ed.: That sorcery and divination are species of heresy.]
[Ed.: Heresy is a wicked and false belief arising from error in the true Christian faith.]
[Ed.: The judgment for heresie is burning to cinders.]
[Ed.: Sorcerers, sorceresses, and heathens are to be burnt.]
[Ed.: Christians who are still non-believers are to be tortured, and giving the proper recanting, are burnt.]
[Ed.: [writ] for burning heretics.]
e Int. leges Edw. ca. 11. fo. 55. & Ethelstani ca. 6. fo. 60. & Canuti cap. 5. fo. 5. 45 E. 3. 17. b.
*Some think that this should be the oath of allegiance, Que il serra foiall et loiall, &c. Vid. 25 E. 3. 42. B. Coron. 131.
See hereafter ca. 74. of perjury, verb. That as well the judge, &c.
1 Chron. chap. 10. v. 13, 14. 1 Reg 15. 23.
*Nota. 1 Reg. 28. 8.
[Ed.: So Saul died for his transgression, which he committed against the word of the Lord, which he kept not, and also for asking the counsel of one that had a familiar spirit, to inquire of it. And inquired not of the Lord; therefore he slew him and turned the Kingdom unto David the son of Jesse.]
1 Jac. cap. 12.
5 Eliz. cap. 14. 3 Eliz. cap. 3.
See the 1. part of the Institutes. Sect. 747.
Vide lib. 1. in the case of Alton Woods. fo.
5 El. cap. 14.
8 El. ca. 3.
31 El. ca. 4.
See the Statute of 3 Ja. ca. 4.