The Online Library of Liberty

A project of Liberty Fund, Inc.

• 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

Cap. VII.
The Court of Kings Bench, Coram Rege.1

| Bracton doth make in few words at notable expression of this Court.2Habet Rex plures Curias in quibus diversae actiones terminantur, & illarum curiarum habet unam propriam, sicut Aulam regiam, & Justiciarios capitales qui proprias causas regias terminant. & aliorum omnium, per querelam, vel per privilegium, sive libertatem.3 And soon after speaking of the Justices of this Court saith:4Item Justiciariorum quidam sunt capitales, generales, perpetui, & majores à latere regis residentes, qui omnium aliorum corrigere tenentur injurias, & errores.5

And Britton saith: In droit des Justices que sont assignes de nous suer & tener nostre lieu or q nous seons en Angliterre.Nota.Voilons que eux eiant conusans de amender faux judgements, & de terminer appeales & auters trespasses faitz enconter nostre peace, &6enconter nostre jurisdiction, & lour record se esteant solonq; ceo que nous manderons per nostre br̃e.7

Fleta,8 in describing this Court saith: Habet & Rex Curiam suam & Justiciarios suos tam milites quam clericos locum suum tenentes in Anglia, coram quibus, & non alibi nisi coram semetipso & concilio suo vel Auditoribus specialibus falsa judicia & errores Justiciariorum revertuntur & corriguntur: ibidem etiam terminantur brevia de appellis, & alia brevia super actionibus criminalibus & injuriarum contra pacem regis illatarum impetrata, & omnia, in quibus continetur ubi tunc fuerimus in Anglia.9

In the Black Book of the Exchequer,10 it is thus said of the Chief Justice of this Court: Capitalis Justitia praesidet primus in regno.11 But of these three ancient Authors we observe these six conclusions.

First, where Bracton saith, Habet Rex plures curias in quibus diversae actiones * terminantur;12 Hereby,Note this word. and in effect by a Britton, and this conclusion followeth, that the King hath committed and distributed all his whole power of judicature,13 to severall Courts of Justice, and therefore the judgement must be Ideo consideratum est per Curiam.14 And herewith do agree divers Acts of Parliament and Book cases, some whereof, for illustration, we will briefly remember; and leave the judicious reader to the rest.

^b15Provisum, concordatum & concessum est, quod tam majores, quam minores justitiam habeant & recipiant in curia Domini Regis.16^c17 That the lawes Ecclesiastical and Temporall were and yet are administred, adjudged, and executed by sundry Judges, &c. ^d18Expedit etiam magistratus reipublicae constitui, quia per eos qui juredicendo praesunt effectus rei accipitur; parum est enim jus in civitate esse, nisi sint qui possunt jura gerere.19

^c For the pleasure of God & quietnesse of our subjects as to save our conscience, and to keep our Oath, by the assent of our Great men and other of our Councell, we have commanded our Justices, that they shall from henceforth do even law and execution of right to all our Subjects, rich and poor, without having regard to any person, without letting to do right for any Letters or commandement which may come to them from us, or from any other, or by any other cause.

Agreeable to that great Canon of the law Anno 3 Edw.1.20 which we have translated into Latin:21Rex praecipit quòd pax sacrosanctae Ecclesiae & regni solidè custodiatur & conservetur in omnibus, quodq; justitia singulis tam pauperibus quam | divitibus administratur, nulla habita personarum ratione.22 See the second part of the Institutes West. 1. cap.i.

8. H.4.23 the King hath committed all his power judiciall, some in one Court, and some in another, so as if any would render himselfe to the judgement of the King in such case where the King hath committed all his power judiciall to others, such a render should be to no effect. And 8 H.6.24 the King doth judge by his Judges (the King having distributed his power judiciall to severall Courts) And the King hath wholly left matters of judicature according to his lawes to his Judges.

And albeit it be enacted that the Delinquent shall be fined at the will of the King,25Non Dominus Rex in camera sua, nec aliter nisi per justiciarios suos (finem imponit) & haec est voluntas regis, viz. per Justiciarios & legem suam, unum est dicere.26

The second conclusion is, that is those dayes this Court of Kings Bench did follow the Court: and therefore Bracton calleth it Aulam regiam,27 because they sat in the Kings Hall. Britton calleth the Justices of this Court, Justices assignes de nous suer:28 and Fleta, Ubi tunc fuerimus in Anglia.29

The third is, that it is called the Kings Bench, and the Pleas thereof Coram rege: because in this Court (as Bracton saith,) those Capitales justiciarii proprias regis causas terminant,30 and therefore the King himselfe cannot be Judge in propria causa.31

The fourth is, that under these words32proprias causas are included three things. First, all pleas of the Crowne; as all manner of treasons, felonies, and other pleas of the Crown which ex congruo,33 are aptly called propriae causae regis,34 because they are placita coronae regis.35 Secondly, regularly to examine and correct all and all manner of errors in fait,36 and in law, of all the Judges and Justices of the Realm in their judgments, processe, and proceeding in Courts of record, and not only in pleas of the Crown, but in all pleas, reall, personall, and mixt, (the Court of the Exchequer excepted, as hereafter shall appear.) And this is proprium quarto modo38 to the King in this Court: for regularly no other Court hath the like jurisdiction, and therefore may be well called propria causa regis. and these two be of high and soveraign jurisdiction.37

^a39 Thirdly, this Court hath not only jurisdiction to correct errors in judiciall proceeding, but other errors and misdemeanours extrajudiciall tending to the breach of the peace, or oppression of the subjects, or raising of faction, controversy, debate, or any other manner of misgovernment; so that no wrong or injury, either publick or private, can be done, but that this shall be reformed or punished in one Court or other by due course of law. As if any person be committed to prison, this Court upon motion ought to grant an Habeas corpus,40 and upon returne of the cause do justice andrelievethepartywronged. And this may be done though the party grieved hath no priviledge in this Court. It granteth prohibitions to Courts Temporall and Ecclesiastical to keep them within their proper jurisdiction. Also this Court may baile any person for any offence whatsoever. And if a Freeman in City, Burgh, or Town corporate be disfranchised unjustly, albeit he hath no priviledge in this Court, yet this Court may relieve the party, as it appeareth in James Bagges case, ubi supra, & sic in similibus.41

Fourthly, this Court may hold plea by Writ out of the Chancery,42 of all trespasses done Vi & armis43 of Replevins, of Quare impedit, &c.44 ,45

^b46 See the second part of the Institutes, the 11 Chapter of Mag. Carta, Communia placita non sequantur curiam nostram.47

Fifthly; this Court hath power to hold plea by Bill for debt, detinue; covenant, promise, and all other personall actions, ejectione firme,48 and the like, against any that is in custodia Mareschalli,49 or any Officer, Minister, or Clerk of the Court: and the reason hereof is, for that if they should be sued in any other Court they should have the priviledge of this Court: and lest there should be a fayler of Justice (which is so much abhorred in law) they shallbeimpleaded here by Bill though these actions be common pleas, and are not restrained by the said Act | of Magna Carta, ubi supra. Likewise the Officers, Ministers, and Clerks, of this Court priviledged by law in respect of their necessary attendance in Court, may impleade others by Bill in the actions of foresaid. And all this appeareth by Bracton, who lived when Magna Carta was made, ubi supra:50 where he saith, Et aliorum omnium per querelam vel per privilegium sive libertatem.51 And continuall experience concurreth with antiquity herein.

This Court may hold plea in Assise of novel disseisin60 without any patent61 for it is querela62 and not placitum,63 and so not within these words communia placita,64 as it hath been expounded and warranted by continuall experience.

A Scire fac’65 to repeal a Patent of the King may be brought in this Court. And where Fleta saith, Nisi coram semetipso & concilio suo, vel Auditoribus specialib’ falsa judicia ac errores justiciariorum revertuntur:66 It is to be known that all the Common law errors in the Court of Exchequer (being the proper Court of the King for his revenue and profit) were examinable before Commissioners appointed by the Kings Writ under his Great Seal, which Fleta here calleth Auditores speciales.67 But now by the statute of 31 Edw.3.68 the Chancelour and Treasurer taking to them the Justices and other sage persons, such as to them seemeth to be taken, shall examine the errors in the Exchequer, &c.

69 In ancient time, when pleas were holden in Parliament, when the parties descended to issue, the Record was adjourned into the Kings Bench to be tried there.

70 See the statute of West. 1. against preposterous hearings in this Court, and the exposition of the same in the second part of the Institutes.

71 By the statute of Artic’ super Cart. the Chancelour and the Justices of the Kings Bench were to follow the Court: but notwithstanding both the Chancery and the Kings Bench were at this time setled Courts, during the severall | Terms of the year, as by infinite records both before and after this statute doth appear. So as at this time they did not attend in the Kings Court, but when they were called, yet were accounted as parcell of the Kings houshold as long as they followed the Court: But this cumbersome attendance wholly ceased in the reign of Edward the third and yet the Lord Chancelour would have had his purveyance, as if he had continued still as one of the houshold, until he and all others, but those of the Kings, Queens, or Princes houshold only, were restrained by Act of Parliament. 34 Edw.3. cap.2.72

Also upon perusall of the Records in the reign of Henry the third from the beginning of his reign until the ending of it, this Court sat in the Term time where the other Courts of Justice did sit.73 And the pleas were stiled to be holden Coram Rege as to this day they are: and this appeareth by Fitzh. Abridgment, in the titles of Corone, of Brief, of Wast &c. and by Bracton who in many places voucheth Judgments in the reign of Henry the third in Terms Coram Rege. And this appeareth also in elder times: but hereof thus much shall suffice to prove, that at the making of the said Act of 28 Edw.1. and long before, this Court in Term times sat with the Kings other Courts, and specially for Pleas of the Crown, &c. and that the said Act is to be intended, that the Chancelour and the Judges of this Court should attend the King and follow the Court when they were required.

It is truly said that the Justices De banco Regis have supream authority, the King himself sitting there as the law intends.74 They be more then Justices in Eire.75

The Justices in this Court are the soveraign Justices of Oier and Terminer, Gaol-delivery,76 conservators of the peace, &c. in the Realm. See the books in the margent, you shall find excellent matter of learning concerning the supream jurisdiction of this Court.77

In this Court the Kings of this Realm have sit in the High Bench, and the Judges of that Court on the lower Bench at his feet; but Judicature only belongeth to the Judges of that Court, and in his presence they answer all motions, &c.

The Justices of this Court are the soveraign Coroners of the land, and therefore where the Sherif and Coroners may receive appeals by bill, è Fortiori78 the Justices of this Court may doe it.79

So high is the authority of this Court, that when it comes and sits in any County, the Justices of Eire,80 of Oier and Terminer, Gaol-delivery, they which have conusance, &c. doe cease without any writing to them. But if any indictment of Treason or Felony in a forain County be removed before certain Commissioners of Oier and Terminer in the County where this Court sits, yet they may proceed, because this Court (for that this indictment was not removed before them) cannot proceed for that offence. But if an indictment be taken in Midd. in the Vacation, and after this Court sit in the next Term in the same County (if this Court be adjourned) then may special Commissioners of Oier and Terminer, &c. in the interim proceed upon that indictment, but the more usuall way is by speciall Commission.81 And all this was resolved by all the Judges of England at Winchester Term, Anno 1 Jacobi Regis,82 in the case of Sir Everard Digby and others: and so had it been resolved, Mich. 25 & 26 Eliz. in the case of Arden and Somervile, for this kind of speciall Commission of Oier and Terminer: and herewith agreeth Pl. Com. in the Earl of Leic’ case, Anno 1 Mar. reginae.83

And so supream is the jurisdiction of this Court,84 that if any Record be removed into this Court, it cannot (being as it were in his center) be remanded back, unlesse it be by Act of Parliament. And this appeareth by the Judgment of the Parliament in Anno 6. Hen. 8.85 but by the authority of that Act indictments of felonies and murders removed into the Kings Bench may by the Justices of that Court be remanded, and this Court may send down as well the bodies of all Felons and Murderers, as their indictments into the Counties where the same murders or felonies were committed or done, &c. in such manner, &c. as if the indictments had not been brought into the Kings Bench. | But the Justices of the Kings Bench of their own authority may grant a Nisi prius86 in case of treason, felony, and other pleas; for there they send but the transcript of the Record and not the Record it self, as shall be said in the Chapter of Justices of Nisi prius.87 But if the Justices of the Kings Bench doe perceive that any indictment is to be removed into that Court by practise or for delay, the Court may refuse to receive the same, before it be entered of Record, and remaund the same back again for justice to be done.

By the statute of 2 Hen. 4 the Clerk of the Crown of this Court,88 iffourscore or an hundred men be indicted of felony or trespasse, of one felony, or one trespasse, and they plead to an issue, as not guilty, the said Clerk ought not to take for the Venire fac’89 nor for the entring of the plea but two shillings only, and not two shillings for every one, which Act is made in affirmance of the Common-law,90 So if one man be indicted of two severall felonies or trespasses, and is acquired, he shal pay but for one deliverance.

Designatio Justiciariorum est à rege, jurisdictio vero ordinaria à lege.91Out of this Court are other Courts derived, as from one fountain severall springs and rivers, in respect of the multiplicity of causes, whichhaveincreased. Jurisdictio istius curiae est originalis seu ordinaria, & non delegata.92 The Justices of this Court have no Commission, Letters Patents or other means to hold pleas, &c. but their power is originall and ordinary. They were called anciently, Justiciae, Justiciarii, locum tenentes domini regis, &c.93 The Chief Justice,94Justitia Angliae, Justitia prima, Justiciarius Angliae, Justiciarius Angliae capitalis, and Justiciarius noster capitalis ad placita coram nobis terminand.95 To observe the changes of these names, and the reason and change thereof, is worthy of observation,

Before the reign of Edward the first the Chief Justice of this Court was created by Letters Patents, and the form thereof (taking one example for all) was in these words.

Rex, &c. Archiepiscopis, Episcopis, Abbatibus, Prioribus, Comitibus, Baronibus, Vicecomitibus, Forestariis, & omnibus aliis fidelibus regni Angliae, Salutem.96Cum pro conservatione nostra, & transquillitatis regni nostri, & ad justitiam universis & singulis de regno nostro exhibendam constituerimus dilectum et fidelem nostrum Philippum Basset Justiciarium Angliae quamdiu nobis placuerit capitalem.Capitalis Justiciatius Angliae.97Vobis mandamus in fide qua nobis tenemini firmiter injungentes, quatenus in omnibus quae ad officium Justiciarii praedicti, nec non ad conservationem pacis nostrae et regni nostri eidem dum in officio praedicto steterit, plenius sitis intendentes. Teste Rege, &c.98

Herein 6. things are to be observed. 1. That the creation of his office was by Letters Patents. 2. That this officer was originally instituted for three things. 1. Pro conservatione nostra.*This was the originall jurisdiction of this Court.2. Tranquillitatis regni nostri. 3.* Ad justitiam universis & singulis de regno nostro exhibendam.99 The third thing to be observed is, that he was Justiciarius Anglix capitalis.100 4. That Philip Basset was constituted Chief Justice of England, and after made Knight, for he was not Knight at the making of the Letters Patents. This Philip was of Welled by in the County of Northampton, & was excellently learned in the laws of the Realm; he was younger brother of Baron Bassett of Draiton Basset in the County of Staff. 5. That he was constituted quamdiu nobis placuerit.101 Lastly, the clause of attendance, and the persons that are to give attendance, &c. to him, are very remarkable. This Philip Basset was the last of this kind of creation by any like Letters Patents, and he died Chief Justice neer to the end of the reign of Henry the third King Edward the first being a wise and prudent Prince, knowing that Cui plus licet quam par est, plus vult quam licet,102 (as most of these summi Justiciarii did) made three alterations. 1. By limitation of his Authority. 2. By changing Summus Justiciarius,103 to Capitalis Justic’.104 3. By a new kind of creation, viz. by Writ, lest if he had continued his former manner of creation, he | might have had a desire of his former Authority, which three doe expresly appear by the Writ yet in use, viz.

Rex. &c. E. C. militi Salutem. Sciatis quod constituimus vos Justiciarium nostrum capitalem ad placita coram nobis tenenda, durante beneplacito nostro. Teste, &c.105

Which writ being called Breve106 doth in few words comprehend the substance of the former Letters Patents: for Capitalis Justiciarius noster and ad placita coram nobis tenenda107 includes all that which was truly intended to be granted to him in the former Letters Patents, which alterations were made by Authority of Parliament, though not now extant.108 For it is a rule in law, that ancient offices must be granted in such forms and in such manner, as they have used to be, unlesse the alteration were by Authority of Parliament, And continuall experience approveth, that for many succession of ages without intermission, they have been, and yet are called by the said writ, Et optimus legum interpres consuetudo.109 But after the said alteration, viz. in anno 25 Edw. 1.110 Reginaldus de Grey (was stiled) Justiciarius Angliae, and he was in legall proceedings called Capitalis Justiciarius noster, when his Patent was, Capitalis Justiciarius Angliae.

We have seen a Fine in these words:111Haec est finalis concordia facta in curia domini regis apud Westm’ à die Sancti Michaelis in tres septimanas, anno Regni Regis Henrici filii regis Johannis 3. coram domino Huberto de Burgo capitali Justiciario Angliae & aliis domini Regis fidelibus tunc ibi praesentibus.112

^a In the writ De homine replegiand113 ,114 he (which was formerly called Capitalis Justiciarius Angliae) is called Capitalis justic’ noster, and sometime Cap. Justic’ Regis, The Stile of this Court of kings Bench is Anglia in the margent: and in divers Acts of Parliament he is called Chief Justice of England. 34 Hen. 8. cap. 26. 37 Hen. 8. cap. 12. 2 Edw. 6. cap. 13. 5 Edw. 6. cap. 11.

The Chief Justice in Ireland is called Capitalis Justiciar’ Hiberniae115 at this day, Pasch, 13 Edw. 1. (the pleas in this Court are Coram rege ) then were stiled thus, Placita coram locum domini regis tenentibus, &c. Ideo venit inde jurata coram rege vel ejus locum tenentibus,116 15 Paschae, &c. within which words all the Judges of the kings Bench were included.

^b117Anno domini 969. in the Abby of Ramsey this Epitaph was ingraden, &c. D. Ailivinus inclyti regis Edgari cognatus totius Angliae Aldermannus, &c.118 who was without question Chief Justice of all England. Inter leges Aluredi119 cap. 34. he is called Cyninger ealdorman,120 i. Regis Aldermannus sive Senator, five ludex. Vide cap. 3. 15. & 38. Et inter leges Edovardi ca. 35.

The rest of the Judges of the Kings Bench have their offices by Letters Patents in these words, Rex omnibus ad quos praesentes literae pervenerint, Salutem. Sciatis quod constituimus dilectum & fidelem Johannem Doderidge militem unum Justiciariorum ad Placita coram nobis tenenda durante beneplacito nostro, Teste, &c.121 ,122 These Justices of the Kings Bench are stiled 1. Capitales. 2. Generales. 3. Perpetui. 4. Majores a latere regis residentes:123 but the Chief Justice is only called by the King, Capitalis Justiciarius noster.124 They are called 1. Capitales, in respect of their supream jurisdiction. 2. Generales, in respect of their generall jurisdiction throughout all England, &c. 3. Perpetui, for that they ought not to be removed without just cause. 4. Majores à latere regis residentes, for their honor and safety, that they should be protected by the King in administration of justice, for that they be a latere Regis.

And where in 5 Edw. 4. it is holden by all the Justices in the Exchequer chamber125 that a man cannot be Justice by Writ but by Patent or Commission, it is to be understood of all the Judges, saving the Chief Justice of this Court. But both the Chief Justice, and the rest of the Judges may be discharged by Writ under the Great Seal.

None can be a Judge of this Court unlesse he be a Serjeant of the degree of the Coif, and yet in the Writ or Patent to them made, they are not named Serjeants.

| If a Writ be returnable Coram Justiciariis nostris apud Westm’,126 it shall be returned in the Common place; but if it be returnable in this Court, it must be Coram nobis ubicunque fuerimus in Anglia.127 See the Second part of the Institutes, Mag. Cart. cap. 11. and the exposition upon the same.

In former times some ill disposed Clerks of this Court, because they could have no originall [writ] out of the Chancery for debt returnable into this Court, they would sue out an originall action of trespasse (a meer feigned action) returnable into this Court, and so proceed to Exigent, (where in truth the cause of action is for debt) and when the Defendant appeared, &c. all the former proceedings were waved, and a bill filed for the Defendant for debt. This is an unjust practise in derogation of the dignity and honor of this Court, and worthy of severe punishment according to the statute of West. 1. c. 29. when it is found out:128Vide in the Chapter of the Court of Common Pleas in the end thereof.

Now that we may here say somewhat to a vulgar objection of the multiplication of suits,Multiplication of suits. in law both in this Court, and other of his Majesties Courts at Westm’ more then hath been in the reigns of Edw. 3. Ric. 2. Hen. 4. Hen. 5. Hen. 6. Edw. 4. and R.3. It is to be observed, that there be six causes of the increase of them, whereof two be generall, the other four particular. The generall be Peace,Peace. and Plenty: The particular, 1. The dissolution of so many Monasteries,Plenty. Chanteries, &c. and the dispersing of them into so many severall hands. 2. The swarm of Informers. 3. The number of Concealors. 4. The multitude of Atturnies.Dissolution of Monasteries, &c.

Informers. Concealors. Atturnies.For the first generall: In the reigns of Edw. 3. Ric. 2. Hen. 4. Hen. 5. and part of the reign of Hen. 6. in respect of the wars in France, &c. and in the residue of the reign of Hen. 6. and in the reign of Edw. 4. in respect of the bloody and intestine wars, and in almost continuall alarums within the bowels of this kingdome,129 between the houses of Lancaster and York, there could not be so many suits in law, as since this kingdome hath enjoyed peace, which is the first generall cause.Concordia parvae res crescunt exopulentialiter.130 Peace is the mother of plenty, (which is the second generall cause) and Plenty the Nurse of suits. In particular, by the dissolution of Monasteries, Chanteries, &c. and dispersing of them, &c. Upon the statutes made concerning the same (there being such a confluence of Ecclesiasticall possessions) there arose many questions and doubts, whereupon suits were greatly increased. 2. Informers and Relators raised many suits, byinformations, writs, &c. in the Kings Courts at Westm’ upon penall statutes, many whereof were obsolete, inconvenient, and not fit for those days, and yet remained as snares upon the subject, so as the subject might justly say with Tacitus, Prius vitiis laboravimus, nunc legibus.131 3. Concealors, Helluones,132 that endeavoured to swallow up Cathedrall Churches and the Ecclesiasticall possessions of Church-men,Possessions of Monast. and Chanteries &c. and the livings of many others of the Kings subjects. Lastly, the multitude of 133 Atturnies, more then is limited by law, is a great cause of increase of suits.

Diminution of suits.But now on the other side, to shew what great hope there is, that suits in law shall decrease, for that in effect all the particular causes of the increase of them are taken away, which we have thought good to remember.

^b134 For the first, the statute of 35 Eliz. cap. 3. hath remedied part, but the statute of 21 Jac. ca. 2. hath given a plenary salve for the whole mischief, whereof you may read at large in the Third part of the Institutes, cap. 87. against Concealors,Concealors.turbidum hominum genus.135 ,136 For the second, by the statute of 21 Jac. cap. 4.Informers. Informations, &c. upon penall statutes are to be heard and determined in their proper Counties, and not in the Courts at Westminster, whereby the vexatious swarm of Informers, who are best trusted where they are least known, are banished and turned again to their former occupations.137 Concerning Atturnies the number are set down,Atturnies. and that they ought to be learned and vertuous, and as I understand, the Judges at this time have this matter in consideration. But besides these, there are some other statutes made for avoiding and decreasing of vexatious suits. As an138 Act in 21 Jac. Regis cap. 16. for limitation of actions and avoiding suits in law, a good and beneficiall law. Another Act at the same Parliament, cap. 13. for the further reformation of Jeo-|-fails, a good law for ending of suits. Another at the same Parliament, cap.8. to prevent and punish abuses in procuring of processe of Supersedeas139 of the peace and good behaviour, out of his Majesties Courts at Westminster, &c. whereby infinite vexatious, troubles and charges of the subjects are prevented. Another at the same Parliament, ca. 23. for avoiding of vexations delays in causes by removing of actions and suits out of inferior Courts, wherein the former abuse was vexatious, grievous, and chargeable to the subject. A branch of an Act at the same Parliament, cap. 16. for pleading of tender of amends in an action of trespasse, Quare claus. fregit,140 for a trespasse by negligence, or involuntary, wherein the Defendant maketh no title, &c, an excellent and necessary law for avoiding of trifling and vexatious suits, especially in Champion Countries. An Act at the same Parliament, cap.2. against Monopolies and new projects, &c.141 a great quiet for the time to come. Anno 3 Caroli Regis nunc, cap. 1. The petition of Right concerning the rights and liberties of all the subjects of this Realm for their repose and quiet. Lastly, the repeal of so many obsolete penall statutes is a great mean of diminution of suits.

For the abovesaid generall causes, viz. Peace and Plenty, long may they happily by the goodnesse of god continue without abuse within this Realm.

The Kings Bench hath authority for great misprisions and offences, to adjudge and inflict corporall punishment, as Pillory, Papers, and the like:whereof you may read many presidents in the Third part of the Institutes, pag. 219, 220.

[1. ][Ed.: Roll a stone [with] Sisyphus,]

[2. ][Ed.: sun from the east.]

[3. ][Ed.: in sown fields.]

[4. ][Ed.: freely.]

[5. ][Ed.: or conversely,]

[6. ][Ed.: For the above reason.]

[7. ][Ed.: or by the surveyor, or the surveyor’s deputy:]

[8. ][Ed.: According to the custom of the manor:]

[9. ][Ed.: In fee simple,]

[10. ][Ed.: If a greater thing is permissible for someone, a lesser thing ought not to be impermissible;]

[11. ][Ed.: During widowhood,]

[12. ][Ed.: conversely,]

[13. ][Ed.: [implicite] impliedly.]

[4. ][Ed.: ignorance in the judge is oftentimes a disaster for the innocent. And since the great charter of the liberties of England—which charter the lord king (Edward I), at Westminster in the twenty-eighth year of his reign, at the request of all the prelates, earls, barons, and commonalty of the whole realm, has newly granted, renewed, and confirmed—it was granted that pleas of the crown of the selfsame lord king should be specially reserved, so that no one of the realm can hold or have such pleas without a special grant, after the confirmation made of the aforesaid charter.]

[5. ]Pasch. 30. E. 1. Coram Rege Kane. The Mayor and Barons of the 5. Ports. compl. in Parliament.

[6. ][Ed.: Before the king (i.e. in the King’s Bench).]

[7. ][Ed.: Or our other bailiffs.]

[8. ][Ed.: That the barons of the cinque ports, and all other ports, should have all their liberties and free customs.]

[9. ]See Pasch. 33. E. 1. Coram Rege. The Prior of Tinemouths case, Northumberl.

[7. ][Ed.: saving to his wife and children their reasonable shares.]

[186. ]c 1 Mar. cess. 1. c. 1 See the statute of 3 H. 7. hereafter, cap. 4. directly in the point by the judgment of the Parliament. Nota, this Act of 25 E. 3. saith. per overt sait, per apertum factum, and not per apertum dictum, by word or confession. See 25 H. 8. c. 52. Eliz. Barton, Edw. Locking, and others attained by Parliament for divers words and conspiracies which being not within this Act without an overt act they could not be attainted by the Common law.

[187. ]d See in the chapter of Misprision.

[188. ][Ed.: This English caption is here substituted for a French caption in the original text.]

[111. ][Ed.: To the prelates, magnates [and] peers of this realm, and to the knights, citizens and burgesses convoked and chosen to this parliament for various causes and considerations, etc.]

[112. ]Dier. 3 Eliz. 203. a And herein the printed book of statutes erreth, for here the Parliament begun not.

[115. ]b Parl. 36 Edw. 3. nu. 1. Simon Langham b. of Ely chancellor.

[116. ]The causes of Parliament were in ancient time shewed in the Chamber De peint, or St. Edwards Chamber.

[117. ]d Parlia. 27. Edw. 3. nu. 1.

[154. ]c 36 Edw. 3. ca. 10. 18 Edw. 3. ca. 1. 4. 50 Edw. 3. nu. 17. Lions case. Rot. Par. 1 Hen. 5. nu. 17. 13 Hen. 4. nu. 9. 11 Hen. 4. c. 9.

[155. ]d 36 Edw. 3. Rot. 19. &c.

[176. ]*Ro Par. 42. Edw. 3. nu. 7.

[177. ][Ed.: The law and custom (or usage) of parliament.]

[181. ]Ista lex ab omnibus est quaerenda, a multis ignorata, a paucis cognita. Fleta lib. 2 cap. 2.

[182. ][Ed.: subsists according to its own laws and customs.]

[183. ]Rot. Par. 11 Ric. 2. nu. 7. See the first part of the Institutes. Sect. 3. Verb. En la ley. Rot. Parl. 2 Hen. 4. nu. 11.

[184. ][Ed.: according to the law and custom of parliament.]

[185. ][Ed.: For the like reason; by like mode of reasoning.]

[186. ]Rot. Parl. 3. Hen. 6. In le Countee de Marshalls case. Rot. Par. 27 Hen. 6. nu. 18. the Earle of Arundels case.

[187. ]Rot. Parl. 31 Hen. 6 nu 26,27,28. Baron Thorps case.

[188. ]5 Hen. 4. nu. 22. The Earl of Northumberlands case. Vid. Rot. Parl. 9 Hen. 4. Indemnity des Seigniors & Commons.

[236. ]Rot. Par. 5. Hen. 4. nu. 11, 12. Rot. Par. 21 Ric. 2. sub tit. Plac. Coronae, &c. Rot. Par. 31 Hen. 6. nu. 49.

[320. ]See Rot. Parl. fo Edw. 3. nu. 142 Cogware Kerseys. See hereafter, cap. 67. See Rot. Parl. 9 Hen. 4. nu. 34. Kendall Clothes, &c. 11 Hen. 4. c. 2. enact. 11 Hen. 4. nu. 26. for remants of Cloth, &c. 11 Hen. 4. c. 7. Stat. 2.

[321. ][Ed.: to the burdening, oppression and impoverishment of the lord king’s people, and not for the improvement of the same people, etc.]

[322. ]37 Edw. 3. ca. 5, 6. 38 Edw. 3. ca. 2. Lib. 11. fo. 54. de Taylers de Ipswich.

[363. ]Rot. Par. 6 Hen. 6. nu. 27.

[364. ][Ed.: by a barony.]

[545. ]Rot. Parl. 11 Hen. 4. nu. 12. vide 7 Hen. 4. nu. 11.

[546. ][Ed.: . . . at Westminster on September 3 (Clause Roll from the 2nd year of Edward II, membranes 14 and 22, in the dorse); in the 4th year of Edward II at London; in the 5th year at Westminster; in the 6th year twice at Westminster; in the 7th year at Westminster; in the 8th year at York; in the 11th year at Westminster; in the 16th year at Rippon, and later at York. In the 6th year of Edward III . . .]

[1. ][Ed.: before the king.]

[2. ]Lib 3. cap. 7. fo. 105. b.

[3. ][Ed.: The king has many courts in which various actions are determined, and of these courts he has one of his own, such as the royal hall, and the chief justices who determine the king’s own causes, and those of all others, by plaint or by reason of a privilege or franchise.]

[4. ]Fo. 108. 2.

[5. ][Ed.: Some of the justices are major, general, permanent and of greater importance, remaining at the king’s side, whose duty it is to correct the wrongs and errors of all others.]

[6. ]A granter prohibitions.

[7. ][Ed.: In respect of the justices who are assigned to follow us and keep our place wherever we sit in England, we will that they should have knowledge to amend false judgments, and to determine appeals [of felony] and other trespasses done against our peace, and against our jurisdiction, and to record them, according to what we command them by our writ.]

[8. ][Ed.: Fleta: an ancient treatise on the laws of England, founded mainly upon the writings of Bracton and Glanville, and supposed to have been written in the time of Edw. I.]

[9. ][Ed.: The king has his court and his justices, both knights and clerks, keeping his place in England, before whom and not elsewhere—except before the king himself and his council, or special auditors— the false judgments and errors of the justices are overturned and corrected; there also are determined writs of appeals and other writs upon criminal actions and actions for wrongs done against the king’s peace, and all things in which it is contained, wherever we shall then be in England.]

[10. ]Liber, niger in Scaccario, cap. 4.

[11. ][Ed.: The chief justice presides as the first in the kingdom.]

[12. ][Ed.: The king has many courts in which various actions are determined.]

[13. ]a See Britton, f. 1. speaking of the King, Et pur ceo que nous ne suffions in nostre proper-person a oier & terminer touts querels del people. Avomus partie nostre charge en plusore parts come est ordeine, &c. 20 Edw. 3. cap. 1.

[14. ][Ed.: therefore it is decided by the court.]

[15. ]b Stat. de Marlb. 52 Hen. 3. ca. i. Vid. 4. Hen. 4. ca. 22.

[16. ][Ed.: It is provided, agreed and granted that both great men and small shall have and receive justice in the lord king’s court.]

[17. ]c 24 Hen. 8. cap. 2. in effect.

[18. ]d Bract. lib. I. ca 5. fol. 3. b.

[19. ][Ed.: It is also in the interest of the state to appoint magistrates, because by those who are in charge of stating the law the effect of a matter is carried out; for it is not enough to have law in a state unless there are those who can administer the laws.]

[20. ]West. 1. An. 3 Edw. 1. cap. 1. Fleta lib. 1. ca. 29.

[21. ]e 20 Edw. 3. cap. I. speaking in the King’s person.

[22. ][Ed.: The king commands that the peace of Holy Church and of the realm be firmly kept and preserved in all respects, and that justice be administered to everyone, both poor and rich, having no respect of persons.]

[23. ]8 Hen. 4. fo. 19.

[24. ]8 Hen. 6. 20. & tit. Grant. F. 5.

[25. ]2 Ric. 3. fol. 11.

[26. ][Ed.: The lord king does not impose a fine in his chamber, or anywhere else, except by his justices, and this is the king’s will, namely by his justices and his law, which are to say the same thing.]

[27. ][Ed.: The King’s hall or palace.]

[28. ][Ed.: justices assigned to follow us.]

[29. ][Ed.: wherever we shall then be in England.]

[30. ][Ed.: the chief justices determine the king’s own causes.]

[31. ][Ed.: in his own cause.]

[32. ]Of these you may reade in Glanvil lib. I. cap. 2. &c. & lib. 10. cap. 18. and in the third part of the Institutes per totu, & Stanf. per totum.

[33. ][Ed.: out of congruence.]

[34. ][Ed.: the king’s own causes.]

[35. ][Ed.: pleas of the king’s crown.]

[36. ][Ed.: in fact.]

[38. ][Ed.: his own to the fourth degree.]

[37. ]And in Ireland of errors in the Kings Bench there. Lib. 7. fo. 18. F. N. B. 22. 34 Ass. 7. 39 Edw. 3. Error 88.

[39. ]a Lib. 11. fo. 98. Jam. Bagges case Vid. 10. Edw. 3. ca. 3. Marshalsea.

[40. ][Ed.: the name given to a variety of writs . . . having for their objective to bring a party before a Court or judge particularly to determine the lawfulness of a custody.]

[41. ][Ed.: as above; and likewise in similar matters.]

[42. ]F. N. B. 89. 92.

[43. ][Ed.: by force and arms.]

[44. ]Tr. 19. Edw. 3. coram rege Rot. 56 Linc.

[45. ][Ed.: A real action to recover a presentation.]

[46. ]b 2 part of the Institutes, Magna Carta. cap. 11.

[47. ][Ed.: Common pleas shall not follow our court.]

[48. ][Ed.: The name of a writ or action of trespass.]

[49. ][Ed.: in the custody of the marshal.]

[50. ]See the second part of the Institutes, ubi sup. 27. Hen. 3. coram Rege. Rot. 9.

[51. ][Ed.: And those of all others, by plaint or by reason of a privilege or franchise.]

[52. ][Ed.: H. P., taken upon complaint by the merchants of Flanders and imprisoned, offered the lord king “hus” and “haut” in pledge to stand to right and to answer the aforesaid merchants and all others who would speak against him, etc.]

[53. ][Ed.: Wood and staff.]

[54. ][Ed.: i.e. John Doe and Richard Roe, the fictitious names of common bail.]

[55. ][Ed.: offers.]

[56. ]31 Hen. 6. 10. b. adjudge.

[57. ][Ed.: Writ which issued in personal actions, on the return of non est inventus to a bill of Middlesex.]

[58. ]1 Hen. 7. 12. 14 Hen. 7. 14. 21 Edw. 3. 46. 11 Hen. 4. 49 in nativo habendo.

[59. ][Ed.: lest the lord king’s court should be deficient in doing justice.]

[60. ][Ed.: A writ of assise which lay for the recovery of lands or tenements, where the claimant had been lately disseized.]

[61. ]3 Hen. 4. 7.

[62. ][Ed.: An action preferred in any court of justice. complaint]

[63. ][Ed.: A public assembly at which the king presided, and which comprised men of all degrees, met for consultation about the great affairs of the kingdom.]

[64. ][Ed.: common pleas.]

[65. ][Ed.: A judicial writ, founded upon some matter of record, such as a judgment or recognizance, and requiring the person against whom it is brought to show cause why the party bringing it should not have advantage of such record, or . . . why the record should not be annulled and vacated.]

[66. ][Ed.: except before himself and his council, or special auditors, the false judgments and errors of the justices are reversed.]

[67. ][Ed.: special auditors]

[68. ]See more hereof in the Chapter of the Exchequer. 31 Edw. 3. cap. 12.

[69. ]a Rot. Par. 18 Edw. i. nu. 97. Placit. Int. Jo. de novo Burgo & Regman, &c.

[70. ]b West. I. cap. 14. Against preposterous hearings.

[71. ]c Art. sup. cart. 28. Edw. i. cap. 5. Glan. temps. H. 2. lib. 2. ca. 6. & lib. 11. ca. 1.Coram Justiciis Domini Regis in Banco sedentibus. Vid. Adjudicat’ coram Rege in every Terme, from I Edw. 1. during all his reign in every severall Term in the yeare. And in all those times and Termes the Court of Chancery did sit.

[72. ]34 Edw. 3. c 1. 2.

[73. ]And so did the Chancery both of them being to some purposes but one Court as it appeareth in the Chapter of the Court of Chancery.

[74. ]3 El. Dier 187.

[75. ]27 Ass. p. 1.

[76. ]7 Edw. 4. 18. 4 Hen. 7. 18. 14 Hen. 7. 21. i: 9. fo. 118. a & b. Segnior Sanchers case.

[77. ]17 Edw. 3. 13. a. Lib. 4. fo. 57. in the Sadlers case. Pl. Com. 262.

[78. ][Ed.: Thinking beforehand.]

[79. ]a 21 Ass. 12. 27 Ass. 1. 28 Ass. 52. 21 Hen. 7. 29.

[80. ]b Pasch. 12 Edw. 3. Coram Rege, Ro. 99. Chichest. W. 1. ca. 3. Lib. 9. fo. 118. Ubi Supra.

[81. ]Hil. 1. Jac. Sir Walter Raleighs case, & c.

[82. ][Ed.: First year of the Reign of James I.]

[83. ]Pl. Com. fo. 388. Count de Leic’ case acc’.

[84. ]22 Edw. 3. 6. b. 24 Edw. 3. 73 29 Ass. 52 Stanf. pl. cor. 15.

[85. ]6 Hen. 8. cap. 6. It extendeth only to Felonies and Murders.

[86. ][Ed.: The nisi prius courts are such as are held for the trial of issues of fact before a jury and one presiding judge.]

[87. ]See before cap. Parliam. pag. 21. when a writ of Error is sued of a Judgment, Coram rege, they proceed super tenore recordi, and the record it self remaineth in this Court.

[88. ]2 Hen. 4. cap. 10.

[89. ][Ed.: A judicial writ, directed to the sheriff of the county in which a cause is to be tried, commanding him that he “cause to come” before the court, on a certain day, therein mentioned, twelve good and lawful men of the body of his county, qualified according to law, by whom the truth of the matter may be the better known, and who are in no wise of kin either to the plaintiff or to the defendant, to make a jury.]

[90. ]26 Ass. p. 47.

[92. ]Glanvil lib. 1. ca. 6. 13. &c. Saepenumero.

[93. ][Ed.: justices, justiciars, the lord king’s lieutenants, etc.]

[94. ]a Lib. nigro in Scaccario. par. 1. ca. 4 Never in any legall record (which we have seen) they were called Summi Justiciarii.

[95. ][Ed.: justice of England, first justice, justiciar of England, chief justiciar of England, and our chief justice to determine pleas before ourself.]

[96. ]Rot. Cart. 45 Hen. 3. 13 Aug.

[98. ][Ed.: The king, etc. to the archbishops, bishops, abbots, priors, earls, barons, sheriffs, foresters, and all other faithful subjects of the realm of England, greeting. Since, for our preservation andforthetranquility of our realm, and in order to provide justice to all and singular of our realm, we have constituted our beloved and faithful Philip Basset to be justiciar of England for so long as it pleases us, we command you in the faith which you hold unto us, with firm injunction, that you submit yourselves fully to him, while he remains in that office, with respect to everything touching the office of justiciar aforesaid, and the preservation of our peace and our realm, etc.]

[99. ][Ed.: 1. For our preservation. 2. For the tranquility of our realm. 3. To provide justice to all and singular of our realm.]

[100. ][Ed.: chief justiciar of England (N.B. actually the word capitalis (chief) is not in the patent as he gives it).]

[101. ][Ed.: for so long as it pleases us.]

[102. ][Ed.: He to whom more is permissible than is fair wants more than is permissible.]

[103. ][Ed.: highest justiciar.]

[104. ][Ed.: chief justiciar.]

[105. ][Ed.: The king, etc. to E[dward] C[oke], knight, greeting. Know ye that we have constituted you our chief justice to hold pleas before ourself during our good pleasure. Witness, etc.]

[106. ][Ed.: A writ. An original writ. A writ or precept of the king issuing out of his courts. A writ by which a person was summoned or attached to answer an action, complaint, etc. ..., or whereby anything was commanded to be done in the courts, in order to justice, etc.]

[107. ][Ed.: our chief justice [and] to hold pleas before ourself.]

[108. ]See in the chapter of the Constable and Marshall for this point.

[109. ][Ed.: and custom is the best interpreter of laws.]

[110. ]Rot. Par. 25 Edw. 1. so named in the Writ of Parliament to him directed.

[111. ]Nota, this fine was levied, Inter Martinum Abbatem de Missenden querentem, & Thurstanum Basset deforcientem de 3 Carucu’ terrae in lega, before him in the Kings Bench, in 3 Hen. 3. before Mag. Car. and stiled Capit. Justiciar’ Angliae. Lib. de Missenden fo. 109. divers other fines with the same stile.

[112. ][Ed.: This is the final concord made in the lord king’s court at Westminster in three weeks from Michaelmas day in the third year of the reign of King Henry, son of King John, before the lord Hubert de Burgh, chief justiciar of England, and other faithful subjects of the lord king then and there present.]

[113. ]a Regist. fo. 77. 24 Edw. 1. stat’ de consultat’ 3 Edw. 3. Coron. 361. Lib. Int. Co. tit. action sur le case, Sect. 5.

[114. ][Ed.: Order granting bail to one in prison but not for a crime or on order of the King.]

[115. ][Ed.: Chief justiciar (or justice) of Ireland.]

[116. ][Ed.: pleas before the lord king’s lieutenants, etc. Therefore let a jury come therein before the lord king or his lieutenants in the quindene of Easter, etc.]

[117. ]b Aldermanni Judices dicti sunt in diebus illis.

[118. ][Ed.: Of Ailwin, kinsman of the excellent King Edgar, ealdorman of all England, etc.]

[119. ][Ed.: in the laws of Alfred cap. 34.]

[120. ][Ed.: the king’s ealdorman [in Anglo-Saxon and Latin], or senator, or judge.]

[121. ][Ed.: The king to all those to whom these present letters shall come, greeting. Know ye that we have constituted our beloved and faithful John Doderidge, knight, one of the justices to hold pleas before ourself during our good pleasure. Witness, etc.]

[122. ]c Bract. li. 3. f. 108.

[123. ][Ed.: 1. major (or chief) 2. general 3. Perpetual 4. the greater among the King’s companions and residents.]

[124. ][Ed.: Our Chief Justice.]

[125. ]L. 5 Edw. 4. 137.

[126. ][Ed.: before our justices at Westminster.]

[127. ][Ed.: before us wheresoever we shall then be in England.]

[128. ]West 1. ca. 29. Vid. 30 Hen. 6. 37. a. 30 Edw. 3. 32. It is fraud where one thing is pretended, and another done.

[129. ]Silent leges inter arma. [Ed.: The law says nothing during war.]

[131. ][Ed.: First we have laboured with faults, now with the laws.]

[132. ][Ed.: gluttons.]

[133. ]See the preambles of the stat. of 4 Hen. 4. ca. 18. 33 Hen. ca. 7.

[134. ]b 35 El. ca. 3. 21 Ja. cap. 2.

[135. ][Ed.: a troublesome kind of men.]

[136. ]c 21 Jac. ca. 4. See the Third part of the Inst. cap. against vexatious relations Informers. &c.

[137. ]d Rot. par. 20. Edw. 1. Rot. 4. De Apprenticiis & Atturnatis 15 Ric. 2 nu. 28. 4. Hen. 4 ca. 18. 33 Hen. 6. ca. 7. See Rot. Parl. 13 Hen. 4 nu. 63. not in print.

[138. ]e 21 jac. ca. 16.

[139. ][Ed.: The name of a writ containing a command to stay the proceedings at law.]

[140. ][Ed.: Wherefore he broke the close. Action of trespass which has for its object the recovery of damages for an unlawful entry upon another’s land.]

[141. ]See the 3. part of the Inst cap. against Monopolists and Projectors. 3 Car. Regis c. 1 21 Jac. ca. 28. 3 Car. ca. 4.

[91. ][Ed.: The title of judge is of the King and its true and ordinary jurisdiction.]

[97. ][Ed.: Chief Justice of England.]

[130. ][Ed.: Little agreement comes out of plenty.]