the selected writings of sir edward coke edward coke the selected writings and speeches of Sir Edward Coke Volume Two edited by steve sheppard liberty fund indianapolis, indiana This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals. The cuneiform inscription that serves as our logo and as the design motif for our endpapers is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 b.c. in the Sumerian city-state of Lagash. ᭧ 2003 Liberty Fund, Inc. Frontispiece and cover art: volume I: Reproduced courtesy of the Right Honourable the Earl of Leicester and the Holkham Estate. volume II: Collection of the Editor. volume III: Corbis-Bettmann. 08 07 06 05 04 03 p 54321 Library of Congress Cataloging-in-Publication Data Coke, Edward, Sir, 1552–1634. [Selections. 2003] The selected writings and speeches of Sir Edward Coke edited by Steve Sheppard. p. cm. Includes bibliographical references and index. isbn 0-86597-313-x (pbk.: alk. paper) 1. Law—England. I. Sheppard, Steve, 1963– II. Title. kd358.c65 2003 349.42Ј092—dc22 2003061935 ISBNs: 0-86597-313-x volume I 0-86597-314-8 volume II 0-86597-441-1 volume III 0-86597-316-4 set Liberty Fund, Inc. 8335 Allison Pointe Trail, Suite 300 Indianapolis, Indiana 46250-1684 Contents to Volume II II. Coke’s Speech and Charge at the Norwich Assizes Preface 523 Coke’s Preface 525 Coke’s Charge 528 III. Excerpts from the Small Treatises A. Book of Entries Preface 558 B. The Compleat Copyholder Section 33, on Customs 563 C. Little Treatise on Baile & Mainprize Conclusion, 29–31 569 IV. Institutes of the Lawes of England A. The First Part of the Institutes; Coke upon Littleton Preface Life and project of Sir Thomas Littleton, and some about the law; table of consanguinity 577 Sections 1–12, Fee Simple 591 Section 21, Fee Tail, part 2 681 Section 69, Tenant at Will, part 2 683 Section 80, Tenant by the Verge, part 3 684 Section 96, Escuage, part 2 685 Section 108, Knight’s Service, part 6 696 Section 138, Frankalmoin, part 5 700 Section 170, Tenure in Burgage, part 9 701 vi Contents Section 199, Villenage, part 18 711 Section 342, Conditional Estates, part 17 723 Section 366, Conditional Estates, part 41 724 Section 372, Conditional Estates, part 47 731 Section 412, Descents, part 27 731 Section 464, Releases, part 20 734 Section 481, Releases, part 37 737 Section 723, Warranty, part 30 739 Section 728, Warranty, part 35 740 Epilogue 742 B. The Second Part of the Institutes Prologue 746 Magna Carta (complete) 755 Merton, 20 Henry III (excerpts) Preface 914 Chapter 9 Common Law, Parliament 916 Chapter 10 Suits 921 Chapter 11 924 Marlebridge, 52 Private disputes to be resolved by Henry III law Preface 924 Westminster 1, 3 Edward I (excerpts) Preface History of statute 927 Glocester (excerpts) Preface History of statute 932 Westminster 2, 13 Edward I (excerpts) Preface History of statute 942 Westminster 3, Tenants may assign tenancies. 18 Edward I Preface 943 C. The Third Part of the Institutes Table of Offenses 945 Preface 949 Contents vii Chapter 1, High Treason 952 Chapter 2, Petit Treason 992 Chapter 3, Misprision of Treason 1028 Chapter 4, Conspiring to Kill the King 1029 Chapter 5, Heresy 1033 Chapter 6, Felonie by Conjuration, Witchcraft, Sorcery and Inchantment 1041 Chapter 62, Indictments 1048 D. The Fourth Part of the Institutes Table of Courts 1054 Preface 1058 Chapter 1, Of the High and Most Honourable Court of Parliament 1062 Chapter 7, Of the Court of the Kings Bench 1166 ii Coke’s Speech and Charge at the Norwich Assizes n 1606, Coke was sitting as justice in the Court of Assizes in Norwich. IAs was the custom, he charged the grand jury with the forms of crime it should consider in bringing indictments, but he particularly suggested the jurors should be concerned with official misconduct. The charge was recorded and published by Robert Pricket in London in 1607 under the title The Lord Coke His Speech and Charge. With a Discoverie of the Abuses and Corruption of Officers. Coke realized the charge was politically volatile, and it appears he was criticized at court, so, in the preface to his Seventh Part of the Reports, published in 1608, he repudiated the publication of the charge as misrepresenting his comments and being full of errors. See p. 164.—Ed. (Preface, written by Robert Prickett) To The Right Honourable the Earle of Exceter, Knight of the most Honorable order of the Garter: and one of the Lordes of his Majesties most Honorable privie Counsel. R. P. wisheth all encrease of Honor and endlesse happinesse.1 May it please your Hon. The observation which this world begets, may teach experience truly to report, that Love and Charity are for the most part growne so cold, even in the hotest Sun-shine of our Profession, as that despised Povertie, though addicted to the Religious exercise of endevors com- mendable, is in the best employment (which seemes with greatest Favor to smile upon his Hope) so coldly recompensed, as that poore unpitieddejected miserable Povertie knowes neither Meanes nor Place how or where to warme it selfe. Unhappie I, in this best time of greatest happines, who being as I am a Poore dispised, hated, scorned, and unrespected Souldier so unfortunate as no commended meanes, though many used, with confirmation both of love and Loyaltie, can bee of power from dispayres Gulfe, to raise a Spirit 1. [Ed.: The Reader should note that the Preface is that of the reporter, and not, obviously, the words of Coke himself. It is reprinted here owing to Coke’s later disavowal of the printing, which may well have met with his initial approval.] 524 Coke’s Speech and Charge drowned, in worst of misery: but were I not indeered unto those by heaven made mine, who are indeed, to me, their life, more deare from whom there is no way to run, unlesse in me, selfe being be disolved, I would assuredly by heavens assistance in some honest War with use of Armes, give to my life so long as I should live, a living maintenance: but now Immured in my native home, unseperably Yoakt 2 with leane-fact povertie. I have experience to conclude that as it is most certaine Pax procreat Bellum,3 so is it no lesse true, that a confirmed Peace, Non amat Filios belli,4 untill she hath need of them. In this estate not knowing how to mend my selfe, Religions Lawe shall make my resolution honest, & though Rerum conditionem mutare non pos- sum,5 yet I will have power to say Hoc possum magnum sumere animam et viro forti dignum,6 with patience therefore shal my grieved thoughts joyfully be thrown upon my makers providence by whose assistance I will stillresolve with a constant Bosome to persist in the prosecution of commended deedes, for this I know Spes mea, Christo vivens, Est vivere ut semper vivam.7 And thus, my Honorable Lord, having breathed forth a sight unto the grace of your compassionate respect: I humbly crave your Honor willvouch- safe, to patronize in this little booke (by me collected) not my owne but the words of that reverend and learned Judge, the Lord Coke, who at his coming to Norwich, did at the Assises there upon the bench, deliver a charge so exelent as that it worthyly deserves to bee continued in perpetuall me- morie, which being thus prodused to a publique view, I hope it shall unto our Publickeweale remaine a worthy presedent, wherein Romes champions may with shame decerne their long continued shamefull practices, Puritans & Sismatickes learne to knowe with what Injustice they disturbe the hap- pinesse of our most happie peace, our Justices, inferior officers, Jurors, and Commons generally, may in this booke find out commended documents, and instructions profitable as wel directing how to govern as to be governed: all which particulars the learned Judge hath wisely handled with such plau- 2. [Ed.: yoked.] 3. [Ed.: Peace begets war.] 4. [Ed.: does not love the sons of war.] 5. [Ed.: I cannot alter the condition of things.] 6. [Ed.: I may undertake this great [work], worthy of a spirited and mighty man.] 7. [Ed.: My hope, oh living Christ, is so to live that I may live for ever.] At the Norwich Assizes 525 sible Oratorical wisedomes eloquence, as that when I heard him speake, I thought the Poet had just cause to say, Prospera lux orritur linguisque; an- imisque; favete: Nam dicenda bono sunt bona verba die.8 If therefore in this following worke my Memory hath given a true instruction to my pen, I hope my labour shalbe accounted profitable, when it administers a publique benefit. Thus Right Hon., Earle, what I have herein performed, together with my most unworthy selfe, I humbly referre unto your Honoured wisedomes consideration, remaining as I will alwayes rest, Your Honours in all humblenesse of Dutie. R. P. The Lord Coke, the Preface to his Charge given at the Assises houlden in Norwich, the fourth of August, 1606. Because I perceive the time hath more swiftly passed then I did expect: my strife and labour with my selfe, hath bin in my selfe to abreviate what I purpose to speak. And though my speech shall principally bee directed to you of the Jurie, which are sworne: yet for that I know the scope and summe of my endevours are solely dedicated to Gods glory and my countries publicke benefit, I hope that all my words shall extend unto the generall good of all these here present; unto whom they are spoken.