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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.
• Sections 1-12 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,
• “henry, By the Grace of God, King of England, &c.”
• Chapter 1
• Chapter 2
• Chapter 3
• Chapter 4
• Chapter 5
• Chapter 6
• Chapter 7
• Chapter 8
• Chapter 9
• Chapter 10
• Chapter 11
• Chapter 12
• Chapter 13
• Chapter 14
• Chapter 15
• Chapter 16
• Chapter 17
• Chapter 18
• Chapter 20
• Chapter 21
• Chapter 22
• Chapter 23
• Chapter 24
• Chapter 25
• Chapter 26
• Chapter 27
• Chapter 28
• Chapter 29
• Chapter 30
• Chapter 31
• Chapter 32
• Chapter 33
• Chapter 34
• Chapter 35
• Chapter 36
• Chapter 37
• Chapter 38
• |[79] Statute of Merton
• Statute of Marlebridge,
• Statutum De Westminster Primer.
• Statutum De Glocester,
• Statutum De Westminst Secundo,
• Statut. De Westminster 3.
• C. The Third Part of the Institutes
• Deo, Patriae, Tibi.
• Cap. I. of High Treason.
• Cap. III. of Misprision of Treason.
• |[37] Cap. IV. Felony By Compassing Or Conspiring to Kill the King, Or Any Lord Or Other, of the Kings Counsell.
• Cap. V. of Heresie.
• |[44] Cap. VI. of Felony By Conjuration, Witchcraft, Sorcery, Or Inchantment.
• |[134] 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

Chapter 12

Before the making of this Statute, the Writs of assise of Novel disseisin,1 and Mordanc’2 were retournable, either coram Rege,3 or into the Court of Common Pleas, and to be taken there, and this appeareth by Glanvill,4Coram me, vel coram Justiciariis meis.5 But since this Statute, these Writs are retournable, Coram Justiciariis nostris ad assisas, cum in partes illas venerint;6 by force of these words, Mittent Justiciarios nostros per unumquemque comitat̃ nostrum semel in anno, qui cum militibus eorundem comitatuum capiant in comitat̃ illis assisas prædict’.7

“but in the Shires.”8

This tendes greatly to the ease of the Jurors, and for saving of charges of the parties, and of time, so as they might follow their vocations, and proper businesse, and the rather, for that the Assise of Novel disseisin, was frequens & festinum remedium9 in those dayes, and so was the assise of Mordanc’ also: It is a great benefit to the subject to have justice administred onto him at home in his owne Country.

For an assise of Novel disseisin, and assise of Mordanc’ see the first part of the Institutes.10

And where Bracton saith,11Succurritur ei, (1. disseisito) per recognitionem assisæ novæ disseisinæ multis vigiliis excogitatam, & inventam recuperandæ possessionis gratia, quam disseisitus injuste amisit, & sine judicio, ut per summariam cognitionem absq; magna juris solemnitate quasi per compendium, negotium terminetur.12 See the Custumier de Normand’, (composed, as hath been said, in 14.H.3.) sect. 91. & 93. of the Assise of Novel disseisin, which being invented and framed in England, as Bracton and others have testfied, must of necessity be transported into Normandy.13

But where we yeeld to Bracton, that the Assise of Novel disseisin was so invented, so he must yeeld to us, that it was a very auncient invention, for Glanvill maketh mention thereof, and of the Assise of Mordaunc’, as hath been said, and by the Mirror also the antiquity of Assise De novel desseisin doth appeare, who saith, that this writ of Assise of Novel disseisin, was ordained in the time of Ranulph de Glanvill.14

But the case of 26. Assise before touched, doth prove that the Writs of Assise are of farre greater antiquity, for there it appeareth that in an Assise of Novel disseisin, claimed to have Conusans of Plea, and Writs of Assise, and other originall Writs out of the Kings Courts by prescription time out of minde of man, |[25] in the times of S. Edmond, and S. Edward the Confessor, Kings of this Realme before the Conquest, and shewed divers allowances thereof: but true it is, as the ancient Authors affirme, that a new forme of Writs of Assise, for the more speedy recovery of possession, which werecalled Festinaremedia,15 was invented in England since the Conquest, & were called Brevia de assisa novæ disseisinæ;16 which Writs so altered continue so untill this day, and according to the alteration is cited in the Custumier cap. 93. fol. 107. b.

If an assise be taken in proprio comitatu,17 and the tenant pleade, and after the assise is discontinued by the non venu18 of the Justices, this Act extends to the Assise, but not to a reattachment thereupon, for that the Assise was first arrained and examined in the proper County, neither doth this Act extend to a Writ of attaint, brought upon the verdict of the recognitors of the Assise:19 And herewith agreeth Britton,20 who saith, Et tout conteine la grand Chie des franchises, que ascuns assises soient prises in Counties, pur ceo ne intent nul que certifications, & attaints auter foitz estre pledes, &c.21

And Bracton saith,22Et si ad hoc se habeat communis libertas, quod assisæ extra comitatum capi non debeant, non sequitur quod propter hoc remaneant juratæ in com̄ capiendæ; aliud enim habet privilegium assisa, & aliud jurata.23

An assise is brought in the Kings bench,24 then being in the County of Suff. (as it may be, as hath been said) of lands lying in that County, the tenant plead in barre, the pl’ reply and pray the Assise, the Kings bench is removed to Westm. and there the pl’ prayed the Assise, this Statute is, that the Asisse shall not be taken but in the County, and now the Kings bench is in another County, and the originall cannot goe out of this place, for when a Record is once in this Court, here it must remaine, wherefore by th’ advise of all the Judges, the Assise was awarded at large, quia nihil dicit,25 and a Nisi prius26 granted in the County of Suff. that there might the Assise be taken. A case worthy of observation, how by this exposition both the parties sute was preserved, and the purvien of this statute observed.

Yet in some case notwithstanding this negative Statute, the asisse should not have been taken in his proper County.27 And therefore if a man be disseised of a Commote or Lordship Marcher in Wales, holden of the King in Capite,28 as for example of Gowre, the Writ of assise should have been directed to the Sherife of Gloc. within the Realme of England, and albeit the land of Gowre was out of the power of the Sherife of Gloc. being out of his County within the dominion of Wales, and this Statute saith that the assise shall not be taken but in his proper County, yet was the assise taken in the County of Gloc. and Judgement thereupon given and affirmed in a Writ of error: and the reason is notable, for the Lord Marcher though he had jura Regalia,29 yet could not he doe justice in his owne case, and if he should not have remedy in this case by the Kings writ out of the Chauncery in England, he should not have right and no remedy by Law given for the wrong done unto him, which the Law will not suffer, and therefore this case of necessity is by construction excepted out of the Statute. And it was well said in an old booke,30Quamvis prohibetur quod communia placita non sequantur curiam nostram, non sequitur propter hoc, quin aliqua placita singularia sequantur Dominum Regem,31 and the like in this negative Statute.

Hereby it appeareth (that I may observe it once for all) that the best expositors of this and all other Statutes are our bookes and use or experience.

More shall be said hereof in the exposition of the Statute of W. 2.

“of Mortdauncestor.”

See the first part of the Institutes, sect. 234. Custumier de Norm. cap. 98. fol. 115.

“If We be out of this Realm, our Chief Justicers.”

This Capitalis Justitiarius32 (when the King is extra Regnum, out of the Realme) is well described by Ockham, Rege extra Regnum agente, br̄ia dirigebantur sub nomine præsidentis Justitiarii & testimonio ejusdem.33 This is he that |[26] is constituted by letters patents when the King is out of the Kingdome, to be custos sive gardianus Regni,34 keeper of the Kingdome, and locum tenens Regis,35 and for his time is Prorex,36 such as was Edward Duke of Cornewall 13. E. 3. Lionell Duke of Clarence 21. E. 3. And the teste to all originall Writs, were teste Lionello filio nostro charissimo custode Angliae &c.37 John Duke of Bedford 5. H. 5. Richard Duke of Warwick 3. E. 4. and many others:38 before whom as keepers of the Kingdome, Parliaments have been holden, and as hath been said, the teste39 of originall Writs are under the name of the Keeper, which no officer can doe, when the King is within the Realme. In 8. H. 5. a great question arose whether if the Kings Lieutenant, or Keeper of his Kingdome under his teste, doth summon a Parliament, the King being beyond sea, andinthemeane time the King returne into England, whether the Parliament so summoned might proceed: it was doubted that in praesentia majoris cessaret potestas minoris,40 and therefore it was enacted that the Parliament should proceed, and not be dissolved by the Kings returne.41 Now that this Statute is to be intended of such a Lieutenant or keeper of the Kingdome, it is proved by this Act it selfe, Capitales Justitiarii nostri mittent Justitiarios nostros.42 that is, they shall name and send Justices by authority under the great seale under their owne teste; which none can doe but the King himselfe if he be present, or his Lieutenant, or the keeper or guardian of his Kingdome, if he be, as this Act speaketh, extra Regnum:43 and this exposition is made ex verbis & visceribus Actus.44 But then it is demanded, whether this locum tenens Regis, seu custos Regni,45 was called capitalis Justitiarius before the making of this act, and this very name you shall read in Glanvile, who saith Praeterea sciendum, quod secundum consuetudines Regni, nemo tenetur respondere in Curia Domini sui de aliquo libero tenemento suo sine praecepto domini Regis, vel ejus Capitalis Justitiarii,46 where Capitalis Justitiarius is taken for Custos Regni.47

It is to be observed, that before the raigne of King Ed. 1. the Kings Chiefe Justice was some time called summus Justitiarius,48 sometime praesidens Justitiarius,49 and sometimes Capitalis Justitiarius. In anno primo E. 1. his chiefe Justice was called Capitalis Justitiarius ad placita coram Rege tenenda,50 and so ever since; and this chiefe Justice is created by Writ, and all the rest of the Justices of either bench, by letters patents.51

In Glanviles time,52 and before, the Kings Justices were called Justiciae, the returnes of Writs being coram Justiciis meis,53 so as the Kings Justices were antiently called Justitiae, for that they ought not to be only Justi in the concrete, but ipsa Justitia,54 in the abstract. Since that time, as by this great Charter in many places it appeareth, they are called Justitiarii à Justitia.55 The honourable manner of the creation of these Justices you may read in Fortescue.56

“in some other place in their Circuit.”

This is taken largely and beneficially, for they may not only make adjournement before the same Justices in their Circuite, but also to Westm. or to Serjeants Inne, or any other place out of their Circuite, by the equity of this Statute, and according as it had been alwayes used:57 for constant allowance in many cases doth make Law.

a The Statute speaking only of an adjournment in Assise of novell disseisin, &c.58 and yet a certificate of an Assise is within this Statute.

b Regula.b Sed rerum progressus ostendunt multa, quae initio praevideri non possunt.59

c60 Time found out, that because the justices of Assise came not but once in the yeare, and that any adjournment could not have beene made by this Act, unles the jurors had given a verdict, for this Act saith propter difficultatem aliquorum articulorum,61 and not upon demurrer, doubtfull plea, Estoppel, &c.*62 or for preservation of the Kings peace, and no provision was made by this Act, if the ten in the assise of Mordaunc. had made a foreine vowcher, or pleaded a foreine plea: all these are holden by the Statute of W. 2. cap. 30 as shall appeare when we come thereunto.

[1. ][Ed.: Real action to recover recently deseised lands.]

[2. ][Ed.: Assize to reclaim lands lost at the death of an ancestor.]

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

[4. ]Glanv. li. 13. ca. 3. & 33. F. N. B. 177. f. Registrum.

[5. ][Ed.: Before my justices.]

[6. ][Ed.: Before our justices of assize when they come into those parts.]

[7. ][Ed.: Shall send our justices through every of our counties once a year, who with the knights of the same counties shall take the aforesaid assizes in those counties.]

[8. ]Mirror ca. 5. § 2. See W. 2. ca. 30.

[9. ][Ed.: a frequent and speedy remedy.]

[10. ]See the first part of the Institutes. sect. 234.

[11. ]Bract. 1. 4. fo. 164.

[12. ][Ed.: The disseised person is aided by a recognition of the assize of novel disseisin, which wasthought up and contrived after many wakeful nights for recovering the possession of that which he has unjustly lost, so that the matter is determined by a summary recognition without great formality of law, as it were, by a short cut.]

[13. ]See the Preface of the 2. pt of the Institutes.

[14. ]Glanv. lib. 13. ca. 3. & 33. Custumier de Norm. ubi supra. Mir. ca. 2. § 15. 26. Ass. p. 24.

[15. ][Ed.: A speedy remedy,]

[16. ][Ed.: Writs of assize of novel disseisin;]

[17. ][Ed.: in the proper county,]

[18. ][Ed.: non-arrival.]

[19. ]24. E. 3. 23. 2. E. 3. 23. 1. 1. E. 4. 1.

[20. ]6. E. 3. 55. 56. Britton cap. 97. fol. 240. F. N. B. 181.

[21. ][Ed.: Whereas it is contained in the great charter of liberties that some assizes shall be taken in the counties, this does not mean that no certificates or attaints be pleaded at other times, etc.]

[22. ]Bracton. lib. 4. fol. 291.

[23. ][Ed.: If someone has a common liberty, that assizes ought not to be taken outside the county, it does not follow from this that juries should remain to be taken in the county; for the assize has one privilege and the jury another.]

[24. ]6. E. 3. 55. 56. 19. E. 3. ass. 84.

[25. ][Ed.: because he says nothing.]

[26. ][Ed.: a court sitting with a jury.]

[27. ]18. E. 2. assise 382. 13. E. 3. Jurisd. 23. Rot. Parliam. de anno 18. E. 1. inter petitiones. 28. E. 3. cap. 2.

[28. ][Ed.: in chief.]

[29. ][Ed.: royal (or regalian) rights.]

[30. ]20. H. 3. tit. brev. 881.

[31. ][Ed.: Although it is prohibited that common pleas should follow our court, it does not follow from this that other kinds of pleas should follow the lord king.]

[32. ][Ed.: Chief justiciars.]

[33. ][Ed.: When the king was doing business outside the realm, writs were directed under the name of the presiding justice and witnessed by the same.]

[34. ][Ed.: keeper or guardian of the realm,]

[35. ][Ed.: the king’s lieutenant,]

[36. ][Ed.: viceroy,]

[37. ][Ed.: witness our beloved son Lionel keeper of England, etc.]

[38. ]Rot. Parliament 13. E. 3. nu. 11. 5. H. 5. nu. 1. 3. E. 4. nu. 14. 21. E. 3. fol. 37.

[39. ][Ed.: a witness.]

[40. ][Ed.: in the presence of a greater man, the power of a lesser ceases,]

[41. ]8. H. 5. cap. 1.

[42. ][Ed.: Our chief justiciars shall send our justices.]

[43. ][Ed.: outside the realm.]

[44. ][Ed.: from the words and innermost parts of the act.]

[45. ][Ed.: King’s lieutenant, or keeper of the realm.]

[46. ][Ed.: It is further to be known that, according to the customs of the realm, no one is bound to answer in his lord’s court for any freehold of his without a command from the lord king or his chief justiciar.]

[47. ][Ed.: keeper of the kingdom.]

[48. ][Ed.: principal Justice.]

[49. ][Ed.: presiding Justice.]

[50. ][Ed.: chief justice for holding pleas before the king.]

[51. ]Glanvil. lib. 12. cap. 25. Rot. Pat. an. 1. E. 1. Hereof you may reade more in the 4. part of the Institut. cap of the Court of Kings bench.

[52. ]Glanvil. lib. 2. c. 6. Hovend. fol. 413.

[53. ][Ed.: before my Justices.]

[54. ][Ed.: Justice itself.]

[55. ][Ed.: [called] justices from justice.]

[56. ]Fortescu. cap. 51.

[57. ]12. H. 4. 20. 29. Ass. 1. 27. Ass. 5. 60. 4. E. 3. 41.

[58. ]a 12. H. 4. 9.

[59. ][Ed.: The course of events shows up many things which were not provided for at the outset.]

[60. ]c 48. E. 3. 7. 47. ass. 1. 39. E. 3. 6. 32 ass. 9. 21. E. 3. 3. 42. E. 3. 11.

[61. ][Ed.: on account of the difficulty of any articles,]

[62. ]*7. H. 6. 9. 3. E. 3. 16. 8. ass. 15 15. E. 3. ass. 96. 17. E. 3. 28. 14. E. 3. ass. 110. 20. E. 3. ass. 123. 22. E. 3. 5. 29. ass. 7 34. ass. 3. 43. ass. 1. 3. H. 4. 18. 22. H. 6. 19.