Selected Writings of Sir Edward Coke, vol. II
Vol. 2 of a 3 vol. set of The Selected Writings. This volume contains Coke’s Speech at Norwich, excerpts from the small treatises, and excerpts from the 4 parts of the Institutes.
The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 2.
Copyright:
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
People:
- Editor: Steve Shepherd
- Author: Sir Edward Coke
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Table of Contents
- Contents to Volume II
- 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
- Epigrams from the Title Page:
- 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
- Epigrams from the Title Page:
- The First Part of the Institutes of the Lawes of England: Or A Commentary upon Littleton, Not the name of the Author only, but of the Law it selfe.
- The Preface.
- Section 1 Fee Simple
- “Tenant,”
- “Fee Simple.”
- “Lands or Tenements.”
- “Called in Latine, feum sinplex, for Feodum is the same that Inheritance is,”
- “Simplex is as much to say, as lawfull or pure.”
- “a lawfull or pure Inheritance.”
- “For if a man would purchase.”
- “purchase.”
- “Purchase Lands.”
- “Land.”
- “To have and to hold.”
- “To him and to his Heires.”
- (d)294 “and his Assignes.”
- “these words (his Heires) which words onely make an Estate of Inheritance in all Feoffments and Grants.”
- “make an Estate.”
- “in all Feoffments and Grants.”
- Section 2 Fee Simple
- “his next cosen collaterall.”
- Section 3 Fee Simple
- “yet the father is neerer of bloud,”1
- (p)2 “it is a maxime in Law, That inheritance may lineally descend, but not ascend.”
- “in Law,”
- “and his uncle enter into the Land.”
- “as by Law hee ought.”
- Section 4 Fee Simple
- (b)5“they of his bloud on the fathers side.”
- “before any of the bloud on the mothers side.”
- “But if a man marrieth an inheretrix.”
- “shall have the land by Escheat”
- “And so see the diversitie.”
- Section 5 Fee Simple
- |Edition: Sheppard2003; Page: [14 a] “The eldest is most worthy of bloud.”
- Section 6 Fee Simple
- Section 7 Fee Simple
- Section 8 Fee Simple
- “seised of lands in Fee simple,”
- “and the eldest son enter,”
- “seised of lands,”
- “enter”
- “man is seised of lands”
- “in Fee simple”
- (k)16 “Possessio fratris de Feodo simplici facit sororem esse haeredem.”
- Section 9 Fee Simple
- “And it is to wit”2
- “Quam clamat esse jus haereditatem suam.”
- “as appeares by the Register”
- Section 10 Fee Simple
- “In his Count Countant.”
- “in his Plea Pleadant.”
- “seised.”7
- “in his demesne as of fee, In Dominico suo ut in feodo.”8
- “in such Manuall occupation, c.”
- “ut de feodo,”12
- “as of an Advowson”
- “Advowson.”
- Section 11 Fee Simple
- “cannot have a more large or greater estate.”
- Section 12 Fee Simple
- Section 21 Fee Tail, part 2
- “And all these Entailes aforesaid be specified in the said Statute of W[estmister].2.”
- |Edition: Sheppard2003; Page: [24 b] “equitie.”
- “As if lands be given to a man, and to (f)5 his heires males of his body begotten, in this case his issue male shall inherit, and the Issue female shall never inherit, c.”
- Section 69 Tenant at Will, part 2
- “if a house be letten to one to hold at will,”
- “house.”
- “by reasonable time”
- (e)8 “As if a man seised of a mese9 in fee simple, fee taile,”
- Section 80 Tenant by the Verge, part 3
- “be many and divers customes,”
- “against reason,”
- Section 96 Escuage, part 2
- “And this seemeth to be good reason.”
- “an Abbot or other man of Religion,”
- “or other man of Religion,”
- “languishing,”
- “or a feme sole,”
- “conveniently arrayed for the warre.”
- “muster.”
- “Sir William Herle.”
- |Edition: Sheppard2003; Page: [71 b] “Justice.”
- “Common Bank (place)”
- “demurred in judgment.”
- “in judgment.”
- Section 108 Knight’s Service, part 6
- “the Statute of Magna Charta,”5
- “considering the Statute of Magna Charta, Upon which, this Statute of Merton upon this point, is founded. Quod haeredes maritentur absque disparagatione,” 16“founded,”
- “no action can be brought upon this Statute, insomuch as it was never seene or heard . . . c. And if any action might have been brought for this matter, it shall bee intended that at some time it would have been put in ure.”
- “Si parentes conquerantur,”
- “if the Cousins”19
- “have cause to make lamentation,”
- “for the shame done to their Cousin.”
- “then may the next Cousin to whom the inheritance cannot descend, enter and ouste the Gardein in Chivalrie.”
- “And if he will not, another cousin of the Infant may doe this.”
- “and take the issues profits to the use of the Infant, c.”
- “or otherwise the Infant within age may enter himselfe ouste the Gardein.”
- Section 138 Frankalmoin, part 5
- “which would be inconvenient.”1
- “and against reason,”
- Section 170 Tenure in Burgage, part 9
- “prescription,”
- “a title of prescription.”
- “time out of minde, c. and of title of prescription, which is all one in the Law,”
- “time of limitation.”
- “in a Writ of right,”
- “from the time of King Richard the first.”
- “a Writ of right,”
- “title of prescription that was at the Common Law, . . . from time whereof the memory of men runneth not to the contrary.”39
- “any proofe of the contrary,”
- “this is proved by the pleading.”
- “insomuch that such title of prescription was at the common law, c.”
- “common law.”
- Section 199 Villenage, part 18
- “Praemunire.”
- “out of the King’s protection,”
- “for the Law and the King’s writs.”
- Section 342 Conditional Estates, part 17
- “at the Tombe of Saint Erkenwald,”
- Section 366 Conditional Estates, part 41
- “verdict of 12. men.”
- “taken at large.”
- “in an assise of Novel disseisin or in any other action.31”
- “by which the lessor entereth.”
- “the Recognitors of the Assise may say.”33
- “and prayed the discretion of the Justices.”
- “For as well as the jurors may have conusance.”
- Section 372 Conditional Estates, part 47
- Section 412 Descents, part 27
- “by occupation in time of Warre,”
- “by occupation.”
- “and of this a man see in a Plea upon a Writ of Aiel, [year] 7.E.2.”
- Section 464 Releases, part 20
- “And this is by the Common Law . . .”
- “the same Law giveth a privity . . .”
- Section 481 Releases, part 37
- “I have often heard the reading of the statute of West[minster]. 2.”
- “the statute of West[minster]. 2.”
- “the remainder over in fee,”
- “feigned Action.”
- “had no remedie before the Statute,”
- Section 723 Warranty, part 30
- Section 728 fee Warranty, part 35
- “whereof no fine is levied in the Kings Court, c.”
- Epilogue
- “I will not presume,”
- “the Arguments and the reasons of the Law,”
- This is the fourth time that our author hath cited verses.12
- B. The Second Part of the Institutes
- Epigrams from the Title Page:
- Deo, Patriae, Tibi.
- A Proeme to the second Part of the Institutes.
- Magna Charta,
- “Henry, by the Grace of God, King of England, c.”
- “Archbishops, Bishops, Abbots, Priors, Earls, Barons, c.”
- “We, unto the honour of Almighty God, and for the salvation of the souls, of our Progenitors and Successors Kings of England, to the advancement of Holy Church and amendment of our Realm.”
- |Edition: Sheppard2003; Page: [2] “our meer and free will.”
- Chapter 1
- “We have granted to God.”
- “for Us and our Heirs for ever.”
- “that the Church of England, c.”
- “That the Church of England shall be free.”
- “and shall have all her whole Rights.”
- “Liberties inviolable.”
- “We have granted also, and given to all Freemen of our Realm, c.”49
- *51“these Liberties under-written.”
- |Edition: Sheppard2003; Page: [5] “Heirs.”
- “of Us.”
- Chapter 2
- “If any of our Earls or Barons.”
- “Earls.”3
- “Barons.”
- “or any other, which hold of Us in chief ”
- “by Knight’s Service,”
- “full age.”
- “the old Relief; that is to say, c.”
- “that is to say, the Heir or Heirs.”
- “one hundred shillings at the most;”
- “according to the old Custom of the Fees.”
- Chapter 3
- “Heir.”
- “before that he hath taken of him Homage.”3
- “be made Knight.”
- “remain in the keeping of his Lords.”30
- Chapter 4
- “Keeper.”
- “reasonable Issues.”2
- “reasonable Customs.”
- “reasonable Services.”
- “and that without Destruction and Waste of his men, and his goods.”10
- “And if We Commit, c.”
- “We will take of him amends and recompence therefore.”13
- “And if We give or sell to any man the Custody, c.”
- |Edition: Sheppard2003; Page: [14] “he shall lose the same Custody.”23
- Chapter 5
- “All these things shall be observed in the Custodies of Archbishopricks, c.”
- “Shall not be sold.”
- Chapter 6
- Chapter 7
- “And she shall tarry in the chief house of her Husband by forty days after the death of her Husband.”7
- “A Widow, c. shall tarry c.”
- “within which days her Dower shall be assigned her.”12
- “after the death of her Husband.”
- “or that the house be a Castle.”14
- “then a competent house shall be forthwith provided for her, in the which she may honestly dwell,”25
- “and she shall have in the mean time her reasonable Estovers of the Common:”
- “And for her Dower shall be assigned unto her the third part of all the Lands of her Husband, c.”
- “No Widow shall be distrained to marry herself, c.41”
- “If she hold of another.50”
- Chapter 8
- |Edition: Sheppard2003; Page: [19] “We.”
- “or our Bailiffs.”2
- “shall not seize any Land or Rent for any Debt, as long as the present Goods and Chattels of the Debtor, do suffice to pay the Debt,”5
- “Rent.”
- “Neither shall the Pledges of the Debtor.”
- “and if the principal Debtor fail in the payment, c. or will not pay where he is able.”
- “and if they will they shall have the Lands and Rents of the Debtor, c.”
- Chapter 9
- Chapter 10
- Chapter 11
- “Common Pleas.”
- “shall not follow our Court.”
- “our Court.”
- Chapter 12
- “but in the Shires.”8
- “of Mortdauncestor.”
- “If We be out of this Realm, our Chief Justicers.”
- “in some other place in their Circuit.”
- Chapter 13
- Chapter 14
- “A Freeman.”
- “shall not be amerced.”
- “saving to him his Contenement.”
- “and a Merchant likewise, saving to him his Merchandise;”
- “and any other’s Villein than ours shall be in likewise amerced, saving his Wainage.”17
- “saving his Wainage.”
- “Earls and Barons shall not be amerced but by their peers, c.”25
- “by their Peers.”
- “Man of the Church.”
- “Benefice.”
- Chapter 15
- |Edition: Sheppard2003; Page: [30] “Banks.”
- Chapter 16
- Chapter 17
- “Sheriff,”
- “Constable.”
- “Coroner,”
- Chapter 18
- Chapter 19
- Chapter 20
- Chapter 21
- Chapter 22
- “We will not hold the Lands.”
- “be convict.”
- |Edition: Sheppard2003; Page: [38] “of Felony.”
- Chapter 23
- “Wears”
- Chapter 24
- “Writ.”
- Chapter 25
- “one Breadth of dyed Cloth, c.”
- Chapter 26
- “a Writ of Inquisition.”
- Chapter 27
- “by Fee-ferm.”1
- “or by Socage.”4
- “Burgage.”8
- “by Knights Service,”9
- Chapter 28
- “his own bare saying,”
- Chapter 29
- “No Free, c.”
- “No Freeman.”
- “No Freeman shall be taken, or imprisoned.”
- “of his . . . Liberties.”
- “free Customs.”
- “by . . . judgement of his Peers.”39
- “by lawful judgement”
- “or by the Law of the Land.”
- |Edition: Sheppard2003; Page: [51] “by the Law of the Land.”
- “We will sell to no man, c.”
- “We will not deny or defer, c.”147
- “Justice or Right.”
- Chapter 30
- “All Merchants.”
- “evil tolls.”
- “by the old and rightful Customs.”
- Chapter 31
- “of any other Escheats.”3
- Chapter 32
- Chapter 33
- Chapter 34
- “the Appeal of a Woman.”
- Chapter 35
- “County Court.1”
- “No County Court from henceforth shall be holden but from month to month, and where greater Time hath been used, there shall be greater:”
- “County Court.”
- “and where greater Time hath been used.”
- “Nor any Sheriff or his Bailiff shall keep his Turn in the Hundred, but twice in the Year; and no where but in due and accustomed; that is to say, once after Easter; and again, after the Feast of Saint Michael.”
- “but in due place . . . accustomed.”
- “in the Hundred.”
- “And the View of Frankpledge, shall be likewise at the Feast of Saint Michael, c.”
- “And the View of Frankpledge shall be likewise at the Feast of Saint Michael, c.”47
- “the View of Frankpledge shall be so done, c.”
- “and that the Tything be wholly kept.”
- “the time of King Henry our Grandfather.”
- “and that the Sheriff seek no occasions; and that he be content with . . . the Sheriff was wont to have for his View-making in the time of King Henry our Grandfather.”75
- “and that he be content with . . . the Sheriff was wont to have, c.”79
- Chapter 36
- Chapter 37
- “Escuage.”1
- “the time of King Henry our Grandfather.”
- Chapter 38
- |Edition: Sheppard2003; Page: [79] Statute of Merton
- “Before William Archbishop of Canterbury, and other his Bishops and Suffragans.”
- “For the Coronation of the said King.”
- “And Hellianor the Queen.”
- Cap. IX.*
- “Against the common Order of the Church.”2
- “And all the Earls and Barons with one voice answered, that they would not change the Laws of the Realm, which hitherto have been used and approved.”13
- “The Laws of the Realm.”
- “And all the Bishops instanted the Lords, that they would consent, c.”
- Cap. X.
- “Oweth Suit.”
- “Trything.”2
- “Wapentake.”3
- “Freeman.”
- “Make his Attorney.”
- “To do those suits for him.”
- Cap. XI
- “Vivariis.”
- “Proper Imprisonment.”
- Statute of Marlebridge,
- “Marlebridge”
- “52 Hen. 3.”
- Statutum de Westminster primer.
- The Preface of the Statute of W.1.
- “These be the Acts”
- “At his first Parliament general.”
- |Edition: Sheppard2003; Page: [157] “after his Coronation,”
- “on the Monday of Easter Utas,”5
- “The Third Year of his Reign.”9
- “By his Council.”
- “By the assent of Archbishops, Bishops, Abbots, Priors, Earls, Barons, and all the Commonality of the Realm, being thither summoned.”
- Statutum de Glocester,
- “Year of grace 1267.”
- “Providing for the Amendment of his Realm, and for a fuller Administration of Justice.”
- “Such manner of Liberties.”
- “And likewise agreed.”
- “That the said Prelates, Earls, Barons, and others shall use such manner of liberties, after the form of the writ here following.”
- “Cum nuper in Parliamento nostro apud Westm’ ”18
- “Provisum sit et Proclamatum”19
- “Quibus hucusque rationabiliter usi sunt ”20
- “Usque ad adventum nostrum per Comitatum praedictum, vel usque proximum adventum Justiciariorum Itinerantium, c.”22
- “Habeant praemunitionem per 40 dies.”33
- “Et si forte exceperint quod non tenentur sine brevi.”34,35
- “Et si ulterius dicunt quod antecessores sui inde obierint seisiti, statim, audiantur statim veritas inquiratur, c.”38
- “Et si non venerint, c. praecipiatur vicecom’ quod faciat eos venire, c. fiat sicut in Itinere Justiciariorum.”43,44
- “De querimoniis factiset faciendis de ballivis regis aliorum fiat secondum ordinationem prius inde factam.”50
- “Juxta articulo eisdem Justic’ nostris tradit’ ”52
- Statutum de Westminst Secundo,
- The Preface of the Statute of W.2.
- Statut. de Westminster 3.
- C. The Third Part of the Institutes
- Epigrams from the Title Page:
- A Table of the Severall Chapters of the Third part of the Institutes, of the Pleas of the Crown.
- Deo, Patriae, Tibi.
- A Proeme to the third Part of the Institutes.
- Cap. I. Of High Treason.
- [When a man]25
- [Doth compasse.]36
- [doth compasse or imagine.]55
- [Death.]70
- [Of our Lord the King.]74
- [The King.]75
- [Of my Lady [his queene].]103
- [Their eldest sonne and heire.]104
- [If a man doe violate the kings compagnion.]108
- [The wife of the kings eldest sonne and heire.]114
- [Heire.]
- [or the kings eldest daughter unmarried.]115
- [Or if a man doe levie warre against our lord the king.]118
- [Or be adherent to the kings enemies in his Realme, giving to them aide and comfort in the realme or elsewhere.]128
- [Adherent.]
- [Enemies.]133
- [Or elsewhere.]143
- |Edition: Sheppard2003; Page: [12] [And thereof be provably attained of open deed by people of their condition.]148
- [Of open deed.]155
- [By people of their condition.]188
- [And if a man counterfeit the Kings great Seale.]192
- [Or his money.]216,217
- [His money.]233
- [If a man bring false money into this realme counterfeit to the money of England, knowing the money to be false, etc.]244
- [If a man slay the Chancellor, Treasurer, or the Kings Justices of one Bench or the other Justices in Eire, or Justices in Assize, and all other Justices assigned to hear and determine, being in their place doing their offices.]253
- [And it is understood, that in the cases above rehearsed, it ought to be judged Treason, which extend to the Lord our King and his Royall Majestie: And such treason is the forfeiture of the escheates pertaineth to our Lord the King, as well as the lands and tenements holden of others, as of himself.]256
- Cap. II. Of Petit Treason.
- [When a servant slayeth his Master.]3
- [Or a wife her husband.]10
- [Or when a man secular or religious slayeth his Prelate to whom he oweth faith and obedience.]15
- [Like cases of treason.]29
- [Any other case supposed treason.]31
- [Treason.]
- |Edition: Sheppard2003; Page: [22] [Which is not above specified.]32
- [Till the cause be shewed and declared before the King and his Parliament.]39
- [Whether it ought to be judged treason or other felony.]41
- [And if percase any man of this Realme ride armed, c.]49
- [Or the declaration of treason, c.]59
- All trials.
- Castigatque, auditque dolos, subigitque fateri.188
- Cap. III. Of Misprision of Treason.
- |Edition: Sheppard2003; Page: [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.
- |Edition: Sheppard2003; Page: [44] Cap. VI. Of Felony by Conjuration, Witchcraft, Sorcery, or Inchantment.
- ¶ 1. If any person or persons shall use, practice, or exercise any Invocation or Conjuration of any evill and wicked Spirit.
- ¶ 2. Or shall consult, covenant with, entertaine, employ, feed, or reward, any evill or wicked Spirit, to, or for any intent or purpose.
- ¶ 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.
- ¶ 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.
- ¶ 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.
- |Edition: Sheppard2003; Page: [46] ¶ 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.
- ¶ 2. Or where goods, or other things lost, or stolen should be found or become.
- ¶ 3. Or to the intent to provoke any person to unlawfull love.
- ¶ 4. Or whereby any cattell or goods of any person shall be destroyed.
- ¶ 5. Or to hurt or destroy any person in his or her body, although the same be not effected or done.
- ¶ Being therefore lawfully convicted.
- ¶ Shall for the said offence, c.
- ¶ And if any person being once convicted of the same offences, c.
- ¶ 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-|Edition: Sheppard2003; Page: [47]-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.
- |Edition: Sheppard2003; Page: [134] Cap. LXII. Of Indictments.
- D. The Fourth Part of the Institutes
- Epigrams from the Title Page:
- A Table of the Severall Courts in this Fourth part of the Institutes, Treated of.
- Deo, Patriae, Tibi.
- Cap. I. Of What Persons this Court consisteth.
- Of the High and Most Honourable Court of Parliament
- Of what number.
- The Names.
- Parliaments in Scripture.
- What Properties a Parliament Man Should have.
- Of Records of Parliament.
- The Summons of Parliament.
- Temporall Assistants.
- Spirituall Assistants Procuratores Cleri.64
- The beginning of the Parliament.
- What is to be done the first day of the Parliament.
- The Election of the Speaker.
- The presentment of the Speaker.
- The matters of Parliament.
- What the Speaker shall doe after his allowance.
- The Writs of Summons of Parliament, which are to be found in the close Roll from time to time.
- Petitions in Parliament.
- Appointment of Committees of Grievances, c.
- Absents, Proxies.
- Lex consuetudo Parliamenti.177
- Of Writs of Error in Parliament.
- Of Judicature.
- Priviledge of Parliament.
- Of Statutes, or Acts of Parliament.
- The division of Acts of Parliament.
- The severall formes of Acts of Parliament.
- In former times Acts of Parliament were proclaimed by the Sheriffes.
- |Edition: Sheppard2003; Page: [27] Prorogation, Adjournment, Continuance, and what maketh a Session of Parliament.
- The House of Commons is a distinct Court.
- Of Subsidies and Aides granted by Parliament.
- Custuma antiqua sive magna.
- Custome of what things, ex antiquo.299
- Butlerage.
- Prisage.
- |Edition: Sheppard2003; Page: [32] Good Bils or motions in Parliament seldome die.
- The Subsidy of Tunnage and Poundage.
- Subsidies temporary and usuall at this day.
- Of Fifteens, Quinzims, c.
- Of Tenths.
- Of Acts of Parliament of confirmation of Letters Patents.
- How the Lords give their voices.
- How the Commons give their voices.
- How Parliaments succeed not well in five Cases.
- The honour and antiquity of the Parliament.
- The power and jurisdiction of the Parliament.
- The proceeding in Parliament against Absents.
- |Edition: Sheppard2003; Page: [42] Acts against the power of the Parliament subsequent bind not.
- Acts of Parliament enrolled in other Courts.
- Every Member of the Parliament ought to come.
- Advice concerning new and plausible projects and offers in Parliament.
- Whom the King may call to the Lords House of Parliament.
- The fees of the Knights, Citizens, and Burgesses of Parliament.
- Who be eligible to be a Knight, Citizen, or Burgesse of Parliament.
- Of Knights, Citizens and Burgesses of Parliament.
- Who shall be Electors of Knights, Citizens, and Burgesses, how and when: and of Elections.
- Concerning Charters of Exemption.
- Consultations in Parliament for maintenance of the Navie.
- Cap. VII. The Court of Kings Bench, Coram Rege.1
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