deteriorem nequaquam Cok. Com. 141. a. The Church exerciseth the Office of a minor can make its condition better but not worse for it is the cheifest reason which makes for Religion And therefore in all cases a Parson or Vicar of the Church for the benefit of the Church hath a qualified fee but in many cases to doe any thing to the prejudice of the Church he hath in effect but an estate for life As a Parson Vicar c. may have an action of Waste and in the Writ it shall be said ad exheredationem Ecclesiae So the Parson that maketh a Lease for Life shall have a consimili casu during the life of the Leasee and a Writ of Entry ad communem legem after or a Writ ad terminum qui preterijt or a quod permittat in the debet which no man can maintaine but Tenant in Fee-simple or Fee-tayle vide But a Parson cannot make a discontinuance for that should be to the prejudice of his Successor to take away his Entry and drive him to a reall action but if he dye the Successor may enter notwithstanding the discontinuance And if a Parson make a Lease for years reserving rent and dyeth the Lease is determined neither will the acceptance of the Successor make it good vide 5. Prelatus Ecclesiae suae conditionem meliorem facore potest sine consensu deteriorem vero nequaquam sine consensu Coke Com. fol. 103. a. As neither Bishop nor Parson cannot disclaim or devest any fee is invested in his house or Church But an Abbot or a Prior with his Covent or a Bishop with his Chapter or a Parson with his Patron and Ordinary may passe away any Inheritance for the wisdome of the Law would not trust one with the Inheritance of the Church which alwayes maketh for religion and the good of the Church 6. Dies dominicus non est dies juridicus Ployd 265. The Sabbath day is no day for Law As upon a Fine levyed by Proclamations according to the Statute of 4. H. 7. C. 24. If any of the Proclamations be made on the Sabbath day all the Proclamations be erronious for the Justices must not sit upon that day but it is a day exempted from such Businesses by the common-Common-Law for the Solempnity of it to the intent that the people may apply themselves that day to the service of God No Plea shall be holden Quindena Pasche because it is alwayes the Sabbath but shall be Crastino quindenae Pasch Fit Nat. fo 17. f. Upon a Scire facias out of the Common Bench an Error was assigned because the Teste of the Scire facias was upon a Sunday And it was adjudged Error because it was not Dies Juâ—idicus Dyer 168. No sale upon a Sunday shall be said to be sale in a Market overt to alter the property 12 E. 4 8. Although Sunday is not Dies Ju idicus and that no judiciall Act ought to be acted on that day yet ministeriall Acts as to arrest or serve Process are allowed for otherwise peradventure they should never be executed and God forbid that things of necessity should not be done on that day for bonum est bene facere die Sabathi but this distinction and exception is taken away by a late Act made in the long Parliament of England yet did that Parliament in case of necessity once sit upon the Lords day which is the high Court of Justice and from which there is no appeale By the Statute of Magna Charta Cap. 14. no spirituall Parson shall be amerced according to his spirituall benefice but according to his Lay fee Fitz. Nat. br f. 76. b. And that in favour of Religion 7. Omnia quae movent ad mortem sunt deod inda Coke l. 5. fol. 110. b. any unreasonable thing killing a man by misadventure is forfeited to the King and every thing moveing with it is forfeited also to the King As if a man being upon a Cart carrying Faggots and as he is in binding them together falleth downe by the motion of one of his Horses in the Cart and dyeth of that both that and all the Horses in the Cart and the Cart it selfe are forfeited 8. E. 2. 307. A man falleth from a stack of Corne and dyeth it is forfeited 2. E. 3 140. If any Horse strike one and I â—lien my Horse and he dyeth my Horse is forfeited because the forfeiture shall have relation to the stroke given Ployd 260. b. Kâ—llaway 68. b. but it is not forfeited untill the matter be found on record and therfore it cannot be by prescription and the Jurors that find the death must also finde and apprize the goods Coke l. 5. fol. 11. b. And therefore are they called Deodands quasi deodanda that is Elâ—emosynas eroganda to be disposed in Almes and workes of Charity 17. E 4. 2. and for that reason doth the King grant them to his Almoner to the intent they should be disposed of by him accordingly Actus dei nemini facit injuâ—iam Cok. Com fol. 148 So much is the reason of the Law ruled by Religion as it will not permit the Act of God to prejudice any one as if Tenant for another mans life granteth a Rent-charge to one for one and twenty years cesty que vie dyeth the Rent-charge is determined and yet the Grantee during the years may have a Writ of Annuity for the Arrearages incurred after the death of cesty que vie because it determined by the Act of God Cok. lâ—b 8. fol. 72. Hales Case An Office is found that the Heir is in ward who after he was of ful age tendreth his Livery and was admitted to it the Heir within three moneths which is the usuall time to sue out his Livery bargaineth part of his Lands by Deed inrolled and within the three moneths dyeth the bargaine was adjudged good and that the Heire should have no prejudice because the suing of his homage and suing out of his Livery without default in him was become impossible by the Act of God Impotentia excusat lâ—gem and is all one as if the King had taken the Homage of the Heire when the Heire made his tender vide ibidem pâ—uâ—a Coke lib. 8. fo 63 a. If an House fall by tempest or other Act of Gâ—d the Lessee for life or years hath a speciall interest to take Timber for the builâ—ing of the house againe if he will for his habitation but if he pull downe the house he shall not have Timber to builde it because it is his own Act and the Lessor shall have an Action of Waste Coke lib. 1. 98. a. If a Lessee Covenanteth to leave the Wood in as good plight as it was at the time of the Lease and after the Trees are subverted by Tempest he is dischar ed of his Covenant causa qua supra Cok. l. 5. fol. 86. a. Bâ—unfeilds Case If the Defendant in debt dyeth in Execution the Plaintiff shall have a new
exhibenda Coke l. 7. f. 4. Many things are constituted in law least the Court of the Lord the King should faile in doing of Justice by the Statute of W. 2. c. 8. It is provided that so often as from henceforth there shall be found in the Chancery that in one case there is found a Writ and in the like case falling under the same right and wanting the like remedy no Writ is found let the Clarkes of the Chancery agree in making a new Writ c. or at the next Parliament let there be a Writ by the consent of the learned in the law and the estate concludeth with the effect of the common law Quod curia domini Regis non debet deficere conquerentibus in Justitia perquirenda That the Kings Court ought not to be slack or deficient to the Complainant in seeking Justice and therefore if there be Lord and Tenant and the tenancy extend into two Counties in this case if the rents or services be behind the Lord may have severall Writs of customes and services for each County a Writ and shall have them retornable at one day in the common bench and there upon count according to his case by the commmon Law because otherwise the Court of the King should be deficient to the Plaintiffs in seeking of Justice Coke com f. 154. a. and Coke l. 7. f. 4. a. b. vide ibidem plura in Bulvers case If there be Lord Mesne and Tenant and the Mesne doth truly his services paramount and yet the Lord distraineth the Tenant paravaile for them at that time the distresse is tortious and the tenant is not distrained in default of the mesne yet in this case if the tenant paravaile request the mesne to take his Cattle out of the ground and to put in the proper Cattle of the mesne in place of them or if the tenant had replevind his own Cattle and requested the mesne to joyne and to acquit him and he refuse by that matter ex post facto the Law shall adjudge that the tenant paravaile was distrained in default of the mesne and in a Writ of mesne the mesne shall plead not distrained in his default and it shall be found against him or otherwise the tenant paravaile who is in no default shall have wrong and yet shall be without remedy and it is all one to the tenant whether the distresse was wrongfull or right if he have not any distresse 39. E. 3.34 c. By which it appeareth that the Judges in those ages did endeavour to put the rule of W. 2. in execution Curia Domini Regis non debet deficere conquerentibus in Justitia exhibenda Coke l. 9. f. 111. a. b. And Coke l. 9. f. 88. b. The Executors which in truth hath the Goods in anothers right to wit to pay the debts c. of the Testator shall not convert them to their private use without paying the just and true debts of the Testator for that shall be against Justice and right and against the Office of Executors which are but the Ministers and dispensers of the Goods of the dead and notwithstanding the death of the Testator yet the debt remaineth for death is not a discharge of debt and it should be a great defect in Law that no remedy shall be given for it curia domini regis de ficeret c. Coke l. 9. f. 88. b. And therefore an action upon the assumpsit made by the testator shall lye against the Executors because in such case the Testator could not gage his Law for by it Justice and right is advanced in that the creditor shall be paid his just and due debt ibidem So Coke com f. 74. a. There are diverse manners of trialls appointed by the Law besides the common tryall by a Jury of twelve men upon oath least the Court of the King should be defective in doing of Justice as in the time of War out of the Realme the tryall shall be by the certificate of the Marshall of the host in writing under his seale which shall be sent to the Justices so in the time of peace out of the Realme as if it be alledged for avoiding an Outlawry that the Defendant was in prison at Burdeaux in the service of the Mayor of Burdeaux it shal be tryed by certificate of the Mayor of Burdeaux and in the like cases such tryalls shall be by the Marshall of the Army or by a messenger of a thing done beyond the Seas 2. Eliz. 176. In Barrys case And for matters within the Realme the custome of London shall be certified by the Mayor and Aldermen by the mouth of the Recorder likewise by certificate of the Sheriff upon a Writ to him directed in case of priviledge if one be a Citizen or a Forrainer And by tryals of Records by certificate of the Justices in whose custody they are by Law So in causes ecclesiasticall as loyalty of marriage generall Bastardy Excommengement Profession and the reason that tryalls by certificate are peremptory because if the Court should re-examine it they have no other remedy but to write to the same officer made the certificate and it is not to be presumed that they would differ from their former certificate Bac. Max. f. 26. A Lord of Parliament upon an enditement of treason or felony shall be tryed by his peeres without oath upon their honors and allegiances but in an appeale at the suit of the Subject they shall be tryed per probos legales homines juratores 10. E. 4.6.8 Customes and Usages of every Court shall be tryed by the Judges of the same Court if they be pleaded in the same Court 11. E. 4.2.9 In dower an appeale brought of the death of her husband or in Assise brought by the feme which was the wife of B. if the Tenant or Defendant plead that the husband is alive the tryall shall not be by Jury but by Justices upon Processe made before them for the greater expedition 6. E. 3. 29. c. In a Writ of Error to reverse a fine for nonage or in an Audita quâ—rela to reverse a Statute or Recognisance for nonage there the age shall be tryed by inspection of the Judges and not by the Country And so it is if tenant vouch A. as heire within age and tenant for life vouch him in the reversion within age and prayeth that the Plea may demurr c If an infant appeare by an Attorny it is Error and shall be tryed by the Country because the making of the warrant of Attorny is the act of the party and yet the appearance of the Attorny is recorded in Court but if the Plaintiff maketh an Attorny in Court and the Defendant pleadeth that the Plaintiff is dead and one appeareth and saith that he is the Plaintiff which is denied by the other party the Judges shall adjudge whether he that now appeareth be the same person who at another time made the Attorny in
though it is the observation of the Philosopher 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 All men love their own Works Arist 4. Eth. c. 1. as Parents and Poets do yet doth the Author acknowledge with Cicero Quod nihil meorum magnopere miror That he never admired any of his own works but saith with Ovid Ipse mihi nunquam Judice me placui That he could never as yet by his own Judgment please himself though it alwaies hath been his ambition to please others according to the option of the Consular Poet Optabam ut placeam sin minus ut taceam And this modest lesson hath the Author learned of the great Legist Sir Edw. Coke Nulla scientia Coke com f. 494. nulla virtus locum suum dignitatem conservare potest sine modestia no science nor virtue can preserve its place and dignity without modesty and accordingly doth he close up his discourse with the conclusion of Bracton postulans a Lectore Brac. l. 1. f. 1. ut siquid superfluum vel perperam positum in hoc opere invenerit illud corrigat vel emendet vel connuiventibus oculis pertranseat requesting this of the Reader that if he shall finde any thing superfluous or placed amisse in this worke that he will either correct or amend it or with conniving eyes passe it by Or rather with our great Master Littleton Si componere magnis Ovid. Parva mihi fas sit That he would not have you beleive that all that he hath said in this Booke is Law for he will not presume to take that upon him but of such things which are not Law enquire and learne of his Sage Masters learned in the Law THE GROUNDS OF THE LAWES OF ENGLAND Extracted out of the Root and Fountaine of other ARTS SCIENCES LIB I. SECT I. IT is the observation of Cicero who excelled in the knowledge of all humane Arts and Sciences Cic. 3. de orot Omnes aâ—tes quae ad humanitatem pertinent habent commune quoddam vinculum quasi cognatione quadam inter se continentur All Arts and Sciences which appertaine unto humanity have a certain common bond and tye and are as it were contained by a certain alliance and affinity amongst themselves and truly for they are the issue of one Womb descending from the same intellect and are by nature so linked and chained together that those principles which are true in one Art and science are reciprocally true in the other for truth absolutely and materially is one and the same though formally or relatively either in respect of the Artists or the diverse objects of Sciences it bee severed which proceeds from the various mode of the application and consideration of it Neither is Theologicall and Philosophicall truth opposite but subordinate and Theologie is not against Philosophie but above it neither doe the principles of one science supplant the principles of another science but mutually aide and assist each other with their principles in searching and sifting out of the truth which is practically appâ—rent in the art and discipline of the Law Nomot f. 6. which borroweth most of her principles from other sciences in so much as Sir Henry Finch elegantly The sparks of all Sciences are raked up in the ashes of the Law for which reason Sir Edward Coke aptly stileth it scientia socialis L. 5. â—8 a sociable science because it agreeth with other excellent sciences both divine and humane and therefore the Author deemeth it operae p ecium a work worth the labour to demonstrate as it were in a mirror and blazon the affinity and aliance that the grâ—unds of the Lawes of Engâ—and have with the principles of other arts and sciences who by an intellectuall chaine are divinely linked and conjoyned and because Theologie is the prime and divine Metaphysicks ars â—rtium scientia scientiarum and the cynosure of all lawes for as Augustine in illa temporali lâ—ge nihil est justum ac legitimum quod non ex hac aeteâ—na homines derivaverint in this temporall Law nothing is just and lawfull that men have not derived from the law eternall and therefore doth the Author deduce his exordium from it because as Sir Edwa d â—oke it is causa causarum and that the common law is grounded on the Law of God and as the mirror of justice the common Law is nothing else but ancient usages warranted by Scriptures from hence are drawne these grounds and maxims 1. Summa ratio est quae pâ—o religione facit Reg. l. c. Coke l. 5. f. 18 a. it is the cheifest reason which makes for religion as in many cases the King is bound by Act of Parliament though he be not named in it nor bound by expresse words And therefore all Statutes which are made for suppressing of wrong or to prevent the decay of religion shall bind the King though he be not named lor religion and justice are the sure supporters of the Crowne and diadem of Kings So the act of 1 Eliz. which restraineth ecclesiasticall persons from spoyling and wasting their possessions which were given to maintaine the service of God shall bind the King unlesse that speciall provision had been made to the contrary by the said Act 2. Coke l. 11. f. 70. a. b. Magdalens Colledge Case the Master and fellowes of Magdalens Colledge by Indenture inrowlled did grant to the Queene an house paying fifteen pounds rent yearely c. and it was resolved by all the Judges that the Act of the 13. Eliz. did extend to restraine them to convey the said house parcell of the said colledge to the Queene though she was not in that expresly named because it was for the advancement of Religion c. for out of those Colledges the Church was furnished with grave and reverend Divines for the instruction of Christians in the true Religion which is a maine Pillar of the Crowne and if the King should be exempted out of it the utter impoverishment of the successors and by consequence the decay of Religion would ensue vide 3. Coke l. 2. f. 44. b. A lay man concerning payment of Tythes may prescribe in modo decimandi but not in non decimando because he is not but in speciall cases capable of Tythes by the common Law and therefore without speciall matter shewed he shall not bee intended to have a legall discharge And therefore in favour of religion and the Church though he may have a legall beginning yet the law will not suffer such a prescription in this case nor put it upon the triall of the lay people who will rather straine their consciences for their owne private gaine and benefit then give the Church its due And the Law hath great policy in it for the decay of the Revenues of the Church in the end will be the subversion of Religion and the service of God c. vide 4 Ecclesia fungitur vice minoris meliorem facere potest conditionem
compellable to pay the mony within an houre neither may he deferre the payment for seven yeares but the time must be adjudged by law Ib. So if I prescribe to have common by viâ—inage in such a village namely every yeare after the Corne is severed and carried away to put my beasts into the field and all the terr tenants of the village have carried away their corne and hay except one man onely the law shall adjudge whether he had sufficient time to carry away his corne and hay when his neighbours did carry it away Ibidem by Starky and Fairfax and so in the case before the discretion of the Judges ought to measure the time and surely his opinion seemeth reasonable unto me though I dare not affirme it to be Law for every mans businesse ought to be rated by a convenient time Fulb. l. 1. f 14. a. So Coke l. 3. f. 28. b. Whereas by the statute of 34. and 35. H. 8. of wils and the statute of 32. H 8. of wills shall be expounded that the King shall take for his full part c. of all such Mannors and Lands as shall by any meanes descend or come by descent c. immediately after the decease of the same devisor c. It was said that the word immediately shall not have a strict construction that iâ— ought to bee done in ipso articulo temporis in the same instant of time but shall bee satisfied if it be done in convenient time as in 18. E. 4. 22. If a man be bound to make an obligation immediately yet hee shall have convenient time to make it Ibidem And by the civill law when no day of payment is limitted when the Venâ—ee is to pay his money c. the law doth limit a time and assigne to the pâ—rty charged with the payment the space of threescore daies Fulb. f. 14. l. 1. a. Quam longum debet esse rationabile tempus non definitur in jure sed pendet ex discretione justiciorum Coke cam f. 56. b. A reasonable time shall be adjudged by the discretion of the Judges before whom the cause dependeth As if a man be seised of a Mesuage in fee simple fee taile or for terme of life who hath certaine goods within the same house and maketh his Executors and dieth yet the executors shall have free entry egresse and regresse to carry out of the same house the goods of their testator by a reasonable time which reasonable time shall be adjudged by the discretion of the Judges And so it is if the Lessoroust his Tenant at will he shall have free entry egresse and regress into the said house by reasonable time to carry away his goods and Vtensils So also is it of reasonble fines customes and services upon the true estate of the cause depending before them for reasonablenesse in these cases belongeth to the knowledge of the law and therefore to be decided by the Justices and this being said of time the like may be said of things incertaine which ought to be reasonable for nothing that is contrary to reason is consonant to law ibidem Proprietas temporis fingenda est secundum subjectam materiam Reg. I. C. The propriety of time is to be feined or fitted according to the subject of the matter As if one deviseth by will in writing land to one and his heires and after in another clause he deviseth out of that Land a rent charge to one and his heires that shall be good and the rent in construction of law shall be taken to be first devised though it be last in words Ployd f. 541. a. So if one deviseth a terme for yeares to his son and that the wife shall have it during the sons minority this is first a devisere the wife and afterwards to the son when he commeth of full age vide ibidem plura Qui male agit odit lucem Coke l. 7. f. 66. a. and therefore it was resolved by all the Justices and Barons of the Exchequer that an arrest in the night was lawfull as well at the suite of the Subject as the suite of the King for the Officer and Minister of Justice ought to arrest him when he can finde him for otherwise peradventure he shall never finde him for he that doth evill hateth the light and if the Officer doth not arrest him when he findeth him and may arrest him the Plaintiff shall have an action upon the case and shall recover all his losse and damages and it is like unto the case for Damage-feasant and therefore one may distraine in the night or otherwise peradventure he shall not distraine vide ibidem in Mackallyes case He that doth evill hateth the light quia nocte latent mendae because offences are hidden in the night and therefore as the Civilians fur diurnus differt a nocturno a nocturnall theife differeth from a diurnall and receiveth a different and more greivous punishment with which the common Law accordeth for he that breaketh a dwelling house in the night although he carrieth away nothing committeth felony and burglary and by the Law is deprived of Clergy and suffereth death without mercy whereas if it had been committed in the day he had been capeable of mercy and clergy Qui male agit odit lucam omnia delicta in aperto leviora funt Coke l. 8. f. 127. a. He that doth evill hateth the light and all open offences are the more lightly to be punished as a Forrainer who keepeth an inward shop is a greater offender then he that keepeth an open Shop for hidden places and corners are more dangerous and offensive for there they may use deceit and not be subject to the search and therfore if a forrainer which hath an open Shop shall forfeit forty shillings he that is a Forrainer and offender in secret places is worthy to forfeit five pound for it is the rule of Law and reason quod clam delâ—nquens magis punitur quâ—m paâ—am he that privately offended shall be more punished then he that offendeth openly Tempora mutantur nos mutamur in illis Coke l. 6. f. 78. Times and seasons are changed and so in them are we as at the first the Leases were distributed in decurias or decennas and therefore were called decennarij and out of every ten one of them was called capitalis plegius the Cheife pledge and every of them were pledges for another and at this day in some places is called the Tithingman and in Yorke-shire Tenmantale in respect of the other inferior pledges so as the returne of the Constable or the presentment of the Jury doth not make a man a cheife pledge but the times are changed and the true institution of this Court is vanished vide ibidem Bullens case At the common Law upon a Fine the party had a yeare and a day to make his claime but now by the Statute he hath five years and if the disseisor had continued a year and day
the obligation is good and the Obligee may declare upon a Solvendum to himselfe 4. E. 4. 29. for contraria non possunt simul esse in eodem subjecto Arist 5. Phys contraries cannot be together in the same subject Omnis privatio presupponit habitum every privation presupposeth an habit Coke com f. 341. b. and l. â—0 f. 86. b. To many purposes a Parson hath in effect but an estate for life and to many a qualified fee but the entire fee and right is not in him and that is the reason that he cannot discontinue the Fee-simple that he hath not nor ever had for every privation presupposeth an habit From authority and example ARgumentum ab authoritate firmissimum est in lege an argument from authority is the strongest in Law Coke com 254. a. our Book cases are the best proofes what the Law is and after the example of Littleton Booke cases are principally to be cited for deciding the cases in question and not any privatâ— opinion according to the rule Nulla hominis authoritas tantum apud nos valere debet ut meliora non sequeremur si quis attulerit no mans authority ought to prevaile so much with us as that we may not follow the better whosoever shall alledge it as Littleton here rejecteth the opinion of Newton and followeth the better authorities in Law Coke com f. 383. a. And whereas by the Civil Law as Sir John Davis observeth every Doctors opinion is vouched and cited of them as good authority it must needs breed distractions of opinions and variations according to which sense the logicall axiom is to be taken locus ab authoritate est infirmissimus Boethius An argument from authority is most weake and prevaileth little or nothing in resolving the question as the Poet pressely Nil agit exemplum litem quod lite resolvat to cleere a quaere example stands for nothing whereas our Law arguments are deduced from the strength of cases apt to the purpose and presidents of former times founded on the discourse of reason and consideration of the wisest and sagest Judges and are no inartificiall arguments as ipse dixit or teste me ipso but are drawn out of the termes and bowells of the issue by arguments and conclusions of reason Nullum exemplum est idem omnibus Coke com 212. a. 317. b. No example is the same to all and therefore it is the best meanes in all assurances to take counsell of learned and well experienced men and not onely to trust without advise to presidents for as the Aphorisme holdeth in the state of a mans body nullum medicamentum est idem omnibus no salve is the same to all so doth the rule in the estates and assurances of Lands no example or president is the same to all Periculosum existimo quod virorum bonorum non comprobatur exemplo Coke com f. 81. b. I deeme it dangerous that is not approved by the president of good men and therefore it appeareth how safe it is to be guided by judiciall presidents Littera scripta manet Coke com f. 115. a. A written word remaineth and therefore a record or sufficient matter in writing is a good memoriall whence it is said when we will by any record or writing commit the memory of any thing to posterity tradere memoriae and for this reason it is that regularly a man cannot prescribe a custome against a statute because it is matter of record and is the highest proof and matter of record in Law yet a man may prescribe against an Act of Parliament when by prescription and custome it is saved by an other Act of Parliament Nihil in lege intolerabilius est eandem rem diverso jure teneri Coke l. 4. f. 93 in Slades case There is nothing more intollerable in law then that the latter judgement should contradict the former and therefore 37. H. 6. f. 22. Aske said such Charters have beene allowed in the time of our Predecessors who were as sage and learned as wee and Markham 5. E. 4. f. 41. It is good for us to doe as it hath been used in former times and not to keepe one way one day for one party and another day the contrary for another party The former presidednts are enough for us to follow So 11. E 3. Title Formedon 22. It was holden that ancient formes and manner of presidents are to be maintained and observed and 34. Ass Pl. 7. That which hath not been according to usage shall not be permitted and in 2. E. 3. 29. The ancient forme and order is to be observed and 39. H. 6. 30. The opinion of Prisâ—t and all the Court was that they would not change their use notwithstanding that their opinion was to the contrary and 4. E. 4. 44. All the Justices said we cannot change the course hath been before for it should be inconvenient and it is said 3. E. 4. 1. That the course of Courts maketh a law And therefore all the Justices in ancient times and from time to time being as well in matters of forme as in deciding of doubts and questions and as well at the common law as in construction of Acts of Parliament have given great regard to the ancient presidents and judgements of the preceding judges as Ployd f. 99. b. It was advised by the Court according to the book of 7. H. 4. That an accessary shall not be arraigned as an accessary to one principall untill the other principals may be attainted because it did seeme the better way to the Court to pursue the same order that the Sages before had used And so here in Slades case in respect of the infinite presidents which the Secondary of the Prothonotaries of the Kings Bench did shew to the Court it was resolved before all the Judges of England in the Exchequer chamber that though an action of debt lyeth upon a contract yet the Bargainer may have an Action of the case or an Action of debt at his election Coke ibidem Mos retinendus fidelissimae vetustatis quae praeter consuetudinem morem majorum fiunt neque placent neque recta videntur frequentia actus multum operatur The ancient manner of the most faithfull antiquity is to be retained and what are contrary to the custome and use of the Elders doe neither please nor seem right and the frequency of acts worketh much Coke l. 4 f. 74. and therefore it was there resolved by the chief justices Popham Anderson and by Pyriam chiefe Baron and other justices that the ancient and usuall elections of Mayors Bayliffs c. by a certaine selected company of the principals of the commonalty and Burgesses commonly called the common councell c. were good and well warranted by their Charters and by their lawes also Multa ignoramus quae nobis non laterent si veterum lectio nobis fuit fâ—miliaris Coke l. 10. 73. We are ignorant of many things which would not be
suerum cum averijs Abbot Conventus renounceth all the Common which he hath used to have of his Cattle with the Cattle of the Abbot and Covent and that release of Common was there taken void because he did not shew to whom he renounced the common yet there was a full intent for he had common in the Land of the Abbots and he had intent to release it to him but for the incertainty it was void And a Lease was made to Baron and Feme and the reversion of the Land that the Baron held was granted and it was held void notwithstanding the intent because it missed of the certainty of the particular estate H. 13. E. 3. Fitz. grants 63. And so where there were Lord and tenant of three acres and the Lord granted the signiory which he had out of one Acre it was held void in 17. E. 3. notwithstanding the intent because his intent did not agree with Law and so where a man holdeth of one by Castle garder Homage and Fealty and he granteth to another all his services it was held in 31. E. 1. that the Castle-garder cannot passe because he did not grant such a Castle but reserved it and therefore he who hath not the Castle cannot have the Castle guarder so his intent in granting al the services could not make all to passe because it was not according to Law and so the Law ruleth the intent and the intent not the Law Ployd ibidem in Throckmortons case Coke l. 1. f. 84. b. A man giveth Land to M. and 1. his Sisters and to the heirs of the bodies of them lawfully begotten by which they had a joynt estate for life and severall inheritances and the Donor intending that neither of them should break the Joynture but the Survivor should have all per jus accrescendi added this clause sub hac forma that shee that should longest live should have all the Land but because his intent is contrary to Law for this cause if the Joynture be severed by fine the Survivor shall not have the part so severed by the said clause which he hath inserted of his conceit and his own imagination contrary to Law and reason ibidem But in Wills the intent shall be observed and onely thought of because the Testator had no time to order all things according to Law by presumption but is suddenly made oftentimes and so the diversity Ployd f. 162. b. And therefore Ploy f. 414. a. The intent in devises maketh estates to passe contrary to the rules of the common Law in deeds and other gifts As if I devise Land to one A. for life whereas there is not any such the remainder in fee he in the remainder shall take the Land though there be no estate precedent And 34. E. 3. one had issue a Son and Daughter and deviseth Land devisable to one for life upon condition that if the Son disturbe tenant for life or his Executors of their Administration that then the Land shall remaine to the Daughter and dyeth the Daughter after the death of the tenant for life bringeth a Formedon in remainder against the son alledgeth that the tenant had disturbed the Tenant for life and the Executors and the Tenant traversed it upon it issue joyned and the condition took the fee out of the Son and put in the Daughter by allowance in Law in performance of the intent of the Devisee though the remainder did not vest when the first estate took effect Ployd ibidem Coke com f. 322. a. b. If a man lease Lands devisable for life c. the reversion by his testament in fee c. and dyeth and then the Tenant maketh wast the Devisee shall have a writ of Wast although the Tenant never attorned because the will of the Devisor made by his will shall be performed according to the intent of the Devisor and if the Tenant will never attorne then it shall never be performed and therefore he shall have an action of wast or distraine without Attornement Littleton for it is a maxime of the common Law ultima voluntas testatoris est perimplenda secundum veram intentionem sufam Coke ibidem for if a man devise his Tenements to another by testament Habendum sibi in perpetuum and dyeth and the Devisee entreth he hath a Fee-simple causa qua supra and yet if a feoffment had been made to him by the Devisor in his life of the same Tenements Habendum sibi in perpetuum and livery and seisin upon it made he shall have an estate onely for terme of his life Littleton Ibidem Coke com f. 9. b. Though by the common Law an estate of inheritance may not passe without these words Heires yet in devise it may as if a man devise twenty acres to another and that he shall pay to the Executors for the same ten pound he hath a Fee-simple by the intent of the Devisor albeit it be not the value of the Land 21. E. 3 16. So if a man devise Lands to give or to sell or in feodo simplici or to him or his Assignes for ever in all these cases a Fee simple doth passe by the intent of the Devisor but if the devise be to a man and his Assignes without saying for ever the devisee hath but an estate for life if I devise Land to one sanguini suo it is a Fee simple but if it be semini suo it is an estate tayle ibidem Exception Coke l. 1. f. 85. 86. in Câ—rbets case It was ruled by all the Justices that such an estate which cannot by the rules of the common Law be conveyed by act executed in his life by advice of counsell learned in the Law such an estate cannot be devised by the will of man who is intended in Law to be in ops consilij as if I devise Lands to one by will in perpetuum he hath a fee for such an estate may be conveyed by estate executed but if I devise further that if the Devisee doth such an act that then another shall have his Lands to him and his Heires that is void because such limitation if it was by act executed is void for as Dyer f. 33. pl. 12. A man cannot devise an estate in fee to one and if he doe not such an act his estate shall cease and another have it for when he hath disposed the estate in fee he hath not power in the same will to devise it to another and f. 4. pl. 7. when the intent of man who maketh a testament doth not agree with the Law the intent shall be taken void as if a man devise his Land to H. in fee and that if he dye without heir that M. shall have the Land this devise is void because one Fee-simple cannot depend upon another in law the same law is if the devise be to the Abbot of Saint Peter de W. where the foundation is to the Abbot of St. Paul
of England I have been too copious in the exemplification of this ground by so many notable cases drawn on by the variety and curiosity of them they being exorbitant from the beaten tract of the common Law from which for the better effecting and doing of right the Law deemeth it convenient and necessary to swarve and deviate and that in favorem juris et recti To add one example more if an obligation be made beyond the Seas and it beareth date at Burdeaux in France where shall it be sued answere is made that it may be alledged to be made in quodam loco vocato Burdeaux in France in Islington in the County of Middlesex and there shall it be tryed for whether there be such a place in Islington or no it is not traverseable in that case Coke com 261. b. Executio juris non habet injuriam Reg. I.C. Hobaâ—t f. 266. The execution of the Law hath no injury As if a man bringeth an action upon a false surmise in a proper Court he cannot bring an action against him and charge him with it as a fault directly and ex diametro as if the suite it selfe was a wrongfull act for the execution of the Law hath no injury So Coke com f. 161. a. It is regularly true that a man shall not be punished for suing of Writs in the Kings Court be it of right or wrong ibidem And therefore 11. Eliz. a man brought a Writ of forger of false deeds the Defendant though he be found guilty could not have a scandalum magnatum and lay the charge contained in the action to be the scandall for no punishment was ever appointed for a suite in Law although it be false and upon vexation vide Dyer f. 285. Pl. 37. And so we rule it every day that if a man be imprisoned upon a formall suit though there were no just cause of suite yet if he give a bond for his release he shall not avoid it by duresse because it is incarceratio legitima Hob. 1. l. And though every thing by nature is good and as Saint Paul saith The Law is good if a man use it lawfully yet the abuse of the Law is the fact and therefore on the contrary part if you charge me with a crime in a Court that is no way capeable of the cause I shall have an action for it and lay that very complaint to be the slander as Coke l. 4. f. 14. b. Wood exhibited a bill in the Star-Chamber against Barkeley and inter alia charged him that he was a maintainer of Pirates and Murderers c. B. brought an action of the case against W. and counted that the said W. had exhibited a bill in the Star-Chamber containing inter alia that the said B. was a maintainer of murderers and pyrates c. and it was resolved that for any thing contained in the bill which was examinable in the said Court no action lyeth although the matter was meerly false because it was in course of Justice but for the said words not examinable in the said Court an action upon the case lyeth for that could not be in course of Justice vide ibidem plura And if a man sue me in a proper Court yet if his suite be utterly without ground of truth and that certainely known to himselfe and thus as the Civilians it be done animo injuriandi I may have an action upon the case against him for the undue vexation and damage that he putteth me unto by his ill practise though the suite it selfe be legall but I cannot complaine of it as it is a suite and therefore the sixteenth of E. 3. Fitz. deceipt 35. A Conusee of a Statute sued execution against his deed of defeasance whereupon the Conusor had an action of deceipt against him and his Assignee in the nature of an Audita querela yet though he was imprisoned upon the Statute could he not bring an action of false imprisonment if he had paid the mony before the day limited by the defeasance because he was imprisoned by course of Law 43 E. 3.33 And if a man sue me and hanging that suite commenceth another against me to this I have a Plea in abatement which proveth this latter suite unjust and vexatious but if he discontinue the former he may bring a new action 43. E. 3. for as Coke com f. 130. a. It may be he hath mistaken some thing in that action or was not provided of his proofes or mistaking the day or the like Likewise I hold I may have an action of the case against him who sueth me against his release or after mony duly paid yea though it be upon a single obligation Hob. ibidem But in these cases these two cautions are to be observed that the new action be not brought before the other be determined because till then it cannot appeare that the other was unjust 2. R. 1. And for this reason a Writ of conspiracy lyeth not untill the Plaintiff is acquitted The other is that besides the thing done amisse there must also be a damage either already suffered or else inevitable and therefore 19. H. 6.44 If a man forge a bond in my name I can have no action of the case yet but if I be sued I may for the wrong or damage though I may avoid it by Plea but if it were upon a recognizance or fine I shall have a deceit presently before execution for Quae incontinente aut certo fiunt in esse videntur and 43. E. 3. 10. deceit against one who procured a Formedon by collusion vide ibidem plura in Waterers case And this rule faileth in a Writ of Replevin against the Lord as if the Lord distraine for rent and the tenant bringeth a Replevin whereby the Lord is disturbed of the meanes to come to his rent this is in Law a disseisin Coke com f. 161. a. Nullus commodum capere potest de injuria sua propria Coke com f. 147. b. No man shall take advantage of his own wrong as if B maketh a lease of one Acre for life to A. and A. seised of another Acre in fee granteth a rent-charge to B. out of both Acres and doth wast in the Acre which he holdeth for life B. recovereth in wast the whole rent is not extinct but shall be apportioned and yet B. claimeth one Acre under A. and so it is if A. had made a Feoffment to B. in fee and B. had entered for the forfeiture the rent is not wholly extinct but must be apportioned and the reason hereof is for that is a maxime of Law that no man shall take advantage of his own wrong And therefore seing the wast and the forfeiture were committed by the act and wrong of the Lessee he shall not take advantage thereof to extinguish the whole rent and the whole rent cannot issue onely out of the other Acre because the Lessor hath one Acre under the estate of the Lessee and therefore
in Auditor Carles case offices committed to many are more safely discharged And therefore by the Statute of 32. H. 8. it is provided that there shall be two persons named to the Kings highnesse which shall be called the Auditors of the Lands of his graces Wards and the King cannot constitute one onely for the subject by the Act hath an interest in it and more safely are the businesses dispatched which are committed to many and therefore though the words of the grant be conjuctim divisim alterius eorum diutius viventi yet are they not materiall for if an office be granted to two pro termino vitarum suarum without more by the death of one of them the grant shall be void for being an office of trust there shall be no Survivor And in this case no Survivor shall be because the Act saith there shall be two persons and though the King may constitute one at one time and another at another time yet he that is first chosen shal have no judicial voice until the other is constituted and to this purpose there may be a Survivor of one of the persons to whom another shall be added Plus vident oculi quam oculus nemo potest supplere vicem duarum personarum Coke l. 4. f. 46. a. Two eyes see more then one and no person can supply the place of two and f. 118. a. As if a baron be made Knight of the Garter or Warden of the Cinque Ports hee shall have but three Chaplaines in all notwithstanding the Statute of 21. H. 8. for though he hath diverse dignities yet is he the same person to whom the attendance is to be made for it is a difficult matter for one man to supply the place of two and though it be a ground quando duo jura in una persona conveniunt aequum est ac in diversis when two rights concur meet together it is all one as if it were in several yet this Act was allwayes construed strictly against non-residencies and pluralities as a thing very prejudiciall to the service of God and instruction of the people and therefore if a Bishop be translated to an Arch Bishopwrick or a Baron be created an Earle and now hath both those dignities yet by this act he shall have but so many Chaplaines as an Arch-Bishop or an Earle may have for the reason abovesaid Ibi. Minister legis non tenetur in executione officij sui sugere aut recedere Coke l. 9. f. 68. a. in Makalies case An Officer or Minister of Justice is not bound in the execution of his office to flye or to goe back and therefore an Officer and Minister of the Law in the execution of his office if there be any resistance and assault is not bound to flye to the wall c. as other Subjects are for the life of the Law is more favored then the life of man and the execution of the Processe of Law and the offices of the conservators of the peace are the soul and life of the Law and the meanes by which Iustice is administred and the peace of the Realme guarded Officia judicialia non concedantur ante quam vacant Coke l. 11. f. 4. in Auditor Curles case judiciall offices ought not to be granted before they are void and therefore was it resolved in that case that the grant made by the King to John Churchill and John Tooke in reversion after the death of T. and C. was void partly because it was a judicial office for these Auditors are one of the Iudges of the Court and as none can give any judgement of things which happen in future so none can be a Iudge in future and great inconvenience would thereupon ensue for he who at the time of the grant of the reversion may be able and sufficient to supply the place of judicature and administer Iustice to the Subjects of the King before the office fall may become unable and insufficient to performe it and it was resolved that neither the office of master of the Wards nor of the Survivor nor of the Attorney of the same Court may be granted in reversion because they are judiall offices But ministeriall and secular offices may be granted in fee in tail for life or at will as the offices of the Constable of England Marshall Vis-count or the Warden of the Fleete and the reason is because those temporall officers have their offices in their naturall capacity and the King in policy may suppresse and revive those offices pro loco tempore and by consequence may limit temporall estates in them Davis f. 45. b. So the office of keeping of our Lady of Lincolne was entailed and a Formedon brought upon that guift of the Office by the Issue in taile 18 E. 3. 27. The Office of one of the Chamberlains of the Exchequer was entailed 1 H. 7. 8. The Office of a Fostership was entailed 4 H. 7. 10. 9. Coke comm f. 20. a. vide ibidem plura Aliquis non debet esse judex in propria causa immo iniquum est aliquem suae rei esse judicem Coke l. 8. f. 118. a. No man ought to be Judge in his own case yea it is a partiall and unequall thing that any one should be a Judge in his own matter In Dr. Borhams case in which case one of the reasons there alledged was that the censors had not power to commit Dr. Bonham because they could not be Judges Ministers and Parties Judges to give sentence Ministers to make summons and Parties to have the Moyety of the forfeiture for no man can be a Judge in his own case one cannot be a Judge and an Attorney 3 E. 6. f. 65. Dyer If any act of Parliament give to any one power to hold or have Cognizance of all manner of pleas before him arising within his Mannor of D. yet he cannot hold plea to which he himself is a party for it is unequall for any one to be a judge in his own matter vide ibidem plura Yet in some cases one shall be his own Judge Pay-master and Carver As if the Lessor covenant to repair the house if he do not and the Lessee do it he may pay himself out of the rent 12 H. 8. 1. Guardians of a Church at their own costs repaire the Church and for amends detain ten load of stones of the Parishioners for which the Successors Guardians bring an action of account and adjudged that they may lawfully detain them 37 Eliz. Metholl and Winge So Taylors and Hostlers may detain the Robe or Horse c. untill reasonable satisfaction is given If one to whom the Testator is indebted will not receive Goods in recompence then it is lawfull for the Executor to pay him with his own money and retain so much Goods of the Testator for it may be there is a penalty which will be forfeited before that he can sell the Goods of the Testator Dyer f. 2. pl.
seised by word assigned Dower to the Feme which she accepteth yet was it adjudged that that refusall of the estate of inheritance and acceptance of her Dower in pais shall not devest the Frank-tenement out of her So 13 Ric. 2. Joynt-tenancy a Charter of Feoffment was made to foure and seisin delivered to three in the name of all and after the Seisin delivered the fourth commeth and vieweth the Deed and saith by word that he will have nothing in the Land and it was adjudged that that agreement by word in pais shall not devest the Frank-tenement out of him and Thorp 35 Ed. 3. Disclaimor said that in such a case the Tenement remained in all untill a disagreement in Court of Record So if there be Lord and Tenant by Deed enfeoffeth the Lord and a stranger and maketh Livery to the stranger in the name of both if the Lord by word disagreeth to the estate it is nothing worth but if he enter into the Land generally and take the profits that amounteth to an agreement to the Feoffment but if he enter into the Land and distrain for his Seignory that act amounteth to a disagreement of the Feoffment and shall devest the Frank tenement out of him 10 E. 4. 12. by all the Justices But if Lands be given to Baron and Feme and after by the Statute of 32 H 8. the Baron alieneth the Land to the use of him and his heires and after deviseth it to his wife for life the wife enters claiming by word the estate for life this is a good agreement to the estate for life and a good disagreement to the estate of inheritance Dyer 351. b. And if A. maketh an Obligation to B. and deliver it to C. to the use of B. this is presently the Deed of A. But if he offereth it to B and he refuseth it in pais by it the Obligation shall lose his force Dyer 167. The same Law is of the gift of goods and chattels and if the goods be delivered to the use of the Donee the goods were in him presently but he may refuse them in pais and by it the property shall be determined ibidem SECT III INclusio unius est exclusio alterius Coke l. 11. f. 50. a. b The inclusion of one thing is the exclusion of another As when an act of Parliament giveth a power and interest to one certain person by that expresse designation of one all others are excluded although such a statute be in the affirmative As where the statute of 31 E. 3. c. 12. it was provided that error in the Exchequer shall be corrected and amended before the Chancellor and Treasurer and therefore it could not be corrected before any other and the generall Rule is put that when any thing is to be done before any person certain by any statute it cannot be done before any other and yet the statute of 31 E. 3. is in the affirmative Ployd 106. b. in Stradlings case So whereas by the statute of 8 H. 6. c. 9. forcible Entry is designed to the Justice of Peace to make restitution by it others be excluded though the statute be in the affirmative and therefore neither Justices of Oyer or Terminor or of Goal-delivery c. shall do it Dallisan 3 Eliz vide ibid. plura And this is true in all acts which are the introduction of a novel Law as the above said acts are but where acts of Parliaments are no introductions of a new Law it is otherwise So the act of 35 Eliz. doth not exclude those to whom the Forfeitures are limited by the act of 23 Eliz because by it they are not given to a new person but to the same person to wit the Queen and is but an act of addition to give more speedy remedy As the statute of W. 2. c. 9. in a VVrit of Mesne giveth more speedy proces and in the end fore-judger whereas the proces at the Common Law was but Distresse infinite yet the Plaintiff may take which proces he will either at the Common Law or upon the statute because they are both in the affirmative Coke l. 11. f. 64. a. And also in many cases the designation of a novell person in a latter act of Parliament shall not exclude another person that was authorized to do the same thing by an act precedent As by the statute of 8 H. 6. c. 16. after Office found he who found himself grieved might within a moneth after traverse take the Tenements to farm that then the Chancellor Treasurer or other Officer shall demise to him to farm untill c. 13 E. 4. f. 8. and yet by the statute of 1 H. 8. c. 16. he hath liberty by the space of three monthes and after by the statute of 32 H. 8. c. 40. the Master of the Court of Wards by advice of own of his Councell is authorized to make a Lease of Land in VVard or an Ideot And though the latter act design another person yet it is not the first altogether taken away for before any Lease made by the Master of the VVards the Chancellor and Treasurer may do it and so e contrario as Stanf. holdeth Prerog f. 69. a. b. VVhere he maketh mention of this Rule â—eges posteriores priores contrarias abrogant vide ibidem plura Coke com f. 210. a. If the Condition upon a Mortgage be to pay to the Mortgagee or his heires the money and before the day of payment the Mortgagee dyeth the Lessor is not to pay the money to the Executors but to the Heire for in this case designatio unius personae est exclusio alterius Consensus tolliâ— errorem Coke com f. 37. a. Consent taketh away error As Dowment ad ostium Eclesiae ex assensu patris seem to be good albeit the wife be within the age of nine years But without question for the same reason a Joynture made to her under or above the age of nine years is good ibidem Coke com f. 125. b. a. If a Venire facias be awarded to the Coroners where it ought to be to the Sheriff or the Visne cometh out of the wrong place yet by assent of the parties and so entred of Record it shall stand for all consent taketh away error ibidem Coke l. 5. f. 36. b. Dyer 367. in Bainhams case Coke l. 5. f. 40. a. b. in Dormers case A common Recovery is not to be resembled to a judgement or proceeding at the common Law for by usage and custome it is become a common assurance and conveyance of Lands and because it is done by mutuall consent errors are not to be allowed for consensus tollit errorem If the Demandant and Tenant consent that two of the foure in a Writ of Right shall be Esquires where by the Law they ought to be Knights and well because by consent Tryall of Villenage was altered from the naturall tryall by consent Pleader of a Feoffment upon condition without deed and
Melancton in his Logick addeth another ground and principle which exceedeth the Phylosophers apprehension to wit principium patefactionis divinae the principle of divine revelation which our Law also holdeth to be the prime principle and ground of all the rest for as Prisot a principal Justice of the common Pleas saith 24. H. 8. 46. 1. we ought to give credit to all such Laws as are taken out of the holy Scriptures for that it is the common Law upon which all Lawes are founded and from which all other Lawes doe proceed and therefore may be called divine Lawes as they are conjoyned with the morall Law and have divine authority as also humane Lawes as men by their knowledge doe judge all humane affaires It followeth that we now inquire of the manner of considering the grounds and rules of our Lawes which is by the extraction of them out of the roote and fountaine of other Acts and Sciences for as reason is the mother of the rules and grounds of all Acts and Sciences so are they by the same reason united and cemented together as that the grounds and rules of one Science are adjuvant and auxiliary to another which the Author hath fully expresly demonstrated in the preamble and frontispice of the first Book of this treatise to which he referreth the Reader And to which may be annexed the method which also may be called a manner and forme of considering concerning which the Judges and Sages of our Laws doe dissent and vary whether any or what manner of method is to be used in the sustemes and digests of our Lawes for the antique and neoterique reporters and writers of our Lawes respect more the matter then the method And Sir Edward Coke being advised by King James at some opportune time to reduce the common law into a more commodious method Coke l. 4. Ep. ad lectorem did much doubt of the fruites of his labour if he should undertake it and so doth Sir Francis Bacon freely professe that though he could have digested the rules of our Lawes into a certaine method and order yet doth he of purpose avoid so to doe but Sir Henry Finch hath endeavoured In his preface to his rules and maximes of the Law and fairely proceeded in reducing not onely the body of our Lawes into a compendious method but also the grounds and rules of the same into an Academicall order for which rarity he hath merited this Elogy rara avis in lege rubicula Haecque alter cantipotior sententia visa est Order being the ornament of all things and method the best art of memory to which purpose Sir John Doderidge asserteth that if there be any way extant Dod. E. Law 253. to purge the English Lawes from the great confusions of tedious and superfluous reiterations wherewith the reports are infested it may be brought to passe by the way of grounds and rules or by none for by rules and exceptions all Sciences are and have been published put downe and delivered and whereas Galene proposeth three wayes reasons and methods of teaching and learning the one way by composing and proceeding from the parts to the whole and the other by resolving the whole into parts and the third by defining which by explication of the nature of the whole examineth every particular appertaining to the whole This third and latter may aptly be applyed to the grounds and rules of Sciences as in Physick to the Aphorismes of Hippocrates and more especially to the grounds and rules of the Law which by the newer Civilians is taken for a definition who accordingly do define a rule to be a short definition or a sentence whenas indeed many like cases are concluded in a short delivery not by the expression of the particular cases but by the assignation of the same reason and is nothing else but a compendious oration Br. in regulas juris f. f. 15. 346. wherein many things are breifly and absolutely delivered and declared and so doe the Greeke interpreters call a definition 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which also may be orderly disposed into a Methodicall and an Alphabeticall Table fit and convenient both for the speedy finding of that we would seek and wish for which the Author in the Table of this treatise hath accurately observed And besides hath been diligent to reduce them into a more artificiall order by drawing the grounds and rules of our free and Municipall Laws from the Springs and Heads of the liberall Arts and Sciences and by that meanes hath brought them into a more convenient forme and method which he ingenuously acknowledgeth to have borrowed of Sir Henry Finch and Mr. Noy quia ingenuum duxi profiteri per quos profecissem and to which according to his slender skill he hath added a copious amplification seriously upon mature deliberation conceiving that all the Grounds and Principles of our Lawes may be placed disposed and contained under some of those Heads and consequently every particular case under the generall and severall grounds in every one of them for as Sir Edward Coke principium est quasi primum caput Coke com f. 345. a. a principle is the prime Head from the which many cases have their beginning and originall and therefore hath the Author disposed as many particular and severall cases under every generall and severall Heads as he could conveniently collect and accumulate having learned of the said Author that there is no particular case in the Law so sterill but that the Student at one time or another may make use of it for the defect of which Sir Francis Bacon taxeth the Civilians in his preface to his Maximes which though the Author hath not compleated yet hath he endeavoured so to doe and made way for others to effect it Et sit nobis voluisse fat But now Gentlemen the Author turneth his stile towards you who are the coronides of his labors and lucubrations and to whom they are devoted and directed for yee are legum nostrarum alumni fed and nourished with the teates and traâ—â—ates of the Law and therefore 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as proper and idoneous auditors of the Grounds and Principles thereof and did forbeare to commende them to the Rabbies and Papinians of our â—awes for that were to instruct Minerua or to submit them to the Judgement of illiterate Lozels for they would contemne what they did not conceive so as he may say of these writings as Caius Lucilius did of his quod ea que scriberet neque ab indoctissimis Cicer. de oratore l. 2. neque a doctissimis legi velle quod alteri nihil intelligerent alteri plus fortasse quam ipse de se that those things which he should write would not be read of those were most learned nor of those were not learned at all because these understood nothing and the others perhaps more then himselfe sic Pro captu lectoris habent sua fata
manerium and if there bee two distinct Mannors then shall they bee taken in the plurall number tota illa maneria that the grant be not void and 32. E. 3. A Fine was levied de maneriis B. and H. and the conclusion was quare praedictum manerium B. and H. ingressus est and good by averment that B. and H. were but one Mannor and though a Writ shall abate for false Latine because any one may purchase a new Writ at his pleasure yet in a grant it shall not because hee cannot purchase a new grant at his pleasure As 4. H. 6 f. 16. the Writ was Henricus dei gratia Rex Angliae Dus Heberniae whereas it should have beene Dns and for it in congruity the Writ did abate but in a Deed that should have beene good enough and so in a fine 9. E. 3. warranty was made in a fine eidem galfrido uxori suae where that should have been iisdem and yet good vide ibidem plura Co. l. 11. f. 3. and Coke com f. 146. ab but because such exceptions doe properly appertaine to Writs Deeds and Fines which have heretofore been composed and levied in the Latine tongue and that by the Act of 9. April 1651. it is enacted that all Patents commissions and all proceedings whatsoever in any Courts of Justice within the Common-wealth of England and which concerne the Law and administration of Justice be made and framed into the english tongue I will cease to heape more cases upon this rule they being chiefly in use for preterite Deeds conveyances and proceedings though not altogether uselesse in our English language for it also hath its grammaticall constructions and sometimes abreviations and therefore it is also in the above said Act enacted that mistranslations or variation in forme by reason of Translation or part of proceedings already begun being in Latine or part in English shall bee no error or avoide any proceedings by reason thereof Sect. 3. THe Law hath little relat ionto Rhetorick and is too strict an argumentative for that copious various and tropicall art Ornari res ipsa negat contenta doceri Doctum genus in doctorum hominum ad doceberniam vix docti But like ruggid and knotty tymber rejects the rhetoricall plaine and outward ornament which moved the critticke Erasmus to deride it and the civilian Hottaman to despise it not apprehending the depth and profundity of it for the Law as Sir Edward Coke is a deep well out of which every one drawes according to the strength of his understanding Cok. com f. 7.1 a. he which reacheth deepest seeth the admirable secrets of the Law which though in the beginning it seemeth difficult yet when the student diveth to the depth it is delightfull and therefore as the same Author in another place saith The generous student Cok. com f. 5. a. ought not to bee discouraged when he meeteth with knotty cases nescit enim generosa mens ignorantiam pati but will proceed on his reading with alacrity to know how to worke into with delight those ruffe Mines of hidden Treasure Coke com f. 235. to which worke as he also saith the knowledge of the liberall arts is requisite especially the art of Logick to labour in that various and intricate Labyrinth for it teacheth a man not onely by just argument to conclude the matter in question but to discover between truth and falsehood and to use a good method and reasonably to speake to any question for it is nothing else but ars rationandi the act of reasoning Coke com f. 344. h. and then wee are said to know the law when wee apprehend the reason of the law from whence arise these grounds and maxims and first from notations which by the consent of all Writers appertaine to Logick Notationes sunt quasi verae rerum notae Fons log and Bracton L. 4. c. 20. Ideo imposita sunt nomina ut demonstrent voluntatem dicentis utimur notis vocis ministerio notations are as it were the true notes of things sor therefore were they imposed that they might demonstrate the will of the speaker and wee use them as notes in the ministry of our Language as Socage is servitium socae i.e. carucae the service of the Plow because that the word soca was used for the Plow and the name of the court of Pypowders was derived from the dusty feet of the commers markets and faires being most frequented in Summer Lam. Arch. so religious houses were called monasteria of the solitarie life therein led which in latter daies was nothing lesse quia as one pleraque monasteria nihil minus sunt quam solitudines Dod. so the feudists in the civill law deduce homagium from hominium for by that name hee doth professe himselfe his man and Client And such notations and etymologies are not to be wrested but must bee answerable to the sound of the words and applied to the sense of which it is said by Coke com f. 68. b. that the right interpretations and etymologies of words are necessary which not only demonstrate their native conceptions but from them often produced arguments which are frequent among the Civilians as well as by the common Lawyers as Cicero arguing for Opimius then Consul useth this notation si Consul est qui consulit patria quid alius est Opimius Ployden 343 b. Testamentum est testatio mentis for of those two words is it compounded and there is no other testation of the Testators mind here but for the twelve Acres in Rigdens case So Cok l. 8. 37. a. a Barrator is derived of two legall words bar which signifieth the bar in Court where causes are debated and retium which signifieth a crime and offence because a common barrator is chiefely an offendor in moving and maintaining of quarrels at barres in Courts and Coke l. 10. f. 128. a. reditus dicitur a reddendo quia retro it to wit to the Lessor or Donor and that is the reason that the Rent so reserved is not due before the day of payment because it is to be rendred and restored of the issues and profits vide Yet as Doderidge such arguments are not to be used at all times and occasions but when necessity requireth the same or apt consequence doth offer a fit occasion or rather as Coke l. 7. f. 27. b. Calvins Case Arguments drawn from Etymologys are too weake or too light for Judges to build there Judgments on yet when they agree with the Judgment of the Law Judges may use them for Ornaments From the Predicable GEnerale nihil ponit generale nihil certum implicat Cok. l. 2. f. 33.34 in Doddingtons Case a generality determineth nothing and a generality implyeth no certainty as if a common person be bound to devise or grant all his Lands which he hath within the tenure of I. B. in W. the Obligor may say that he hath no Land there for
proferentem accipienda sunt Bacon Eliz. f. 11. As if I demise omnes boscos meos in villa de Dale for years this passeth the soile 14. H. 8.28 H. 8. Dyer 17. And if I sowe my Land with Corne and let it for for yeares the Corne passeth to my Lessee And if I grant ten pounds rent to Baron and Feme and if the Baron dye the Feme shall have three pounds rent because these words rest ambiguous whether I intend three pounds by way of addition or three pounds by way of deduction out of the rent of ten pounds it shall be taken strongest against me that it is three pounds addition to the ten pound of which more hereafter So Coke fol. 303. b. Ambiguum placitum interpretari debet contra proferentem An ambiguous Plea shall be taken strongest against the pleader for every one is presumed to make the best of his own Case and Coke l. 10. f. 50. Ambigua responfio contra proferentem est accipienda the Bishop of Sarums Case vide ibidem In obscuris secundum magis similius est judicandum vel quod plerumque inspici solet Regula I. C. and Coke l. 4.13 14. Sensus verborum ex causa dicendi accipiendus est sermones semper accipiendi secundum subjectam materiam In obscure and dark sayings we are to judge according to that which is most likely and which is wont to be and the sense of the words is to be collected from the cause of the speech and to be taken according to the subject of the matter which rule seemeth to qualify and moderate the other two vide ibidem S. Cromwells Case as first in words the Plaintiff bringeth an action upon the case for calling of him Murderer to which the Defendant said that as he was speaking with the Plaintiff concerning unlawfull hunting the Plaintiff confessed that he had killed diverse Hares with Engins to which the Defendant answered that he was a murtherer innuendo a murtherer of Hares and it was resolved that the justification was good for upon an action of slander the likeliest sense of words is to be taken and collected out of the occasion of the speech Coke ibidem And so in Deeds as if I have a free Warren in my land and let my Land for life not mentioning the Warren yet the Lessee by implication shall have the Warren 32. H. 6. which is the more likely meaning for otherwise the Lessor would have excepted the Warren Vnivocum denoteth words of a certaine and distinct signification and expresseth the thing cleerly without any obscurity or Ambiguity of which the Law taketh especiall notice for that certainty in all contracts and conveyances is the cause of quiet and setlement of estates but incertainty is the author of variance and dissention from whence we have these notable grounds and maximes Misera est servitus ubi jus est vagum Coke l. 5. f. 42. a. God forbid that the inheritances of men should depend upon incertaines and it is a miserable servitude where the Law is wavering and therefore Ployd f. 28. a. In every Common-wealth it is necessary and requisite that things should bee certainely conveyed for certainty engendreth repose and incertainty contention The occasions of which contention our Law foreseeing hath prevented and therefore ordained that certaine ceremonies should be used in the transmutation of things from one man to another and namely of Frank-tenements which are of greatest estimation in our lawes to know the certaine times when things do passe and therefore in every Feoffment the Law ordeineth that livery and seisin shall bee made and in every grant of a reversion or rents that attornement should be made which are points certaine containing time wherefore it is well observed by Sir Edward Coke in his Preface to the second part of his Reports that in all his time there have not beene moved in the Courts of Justice of England two questions touching the rights of descent escheats or the like fundamentall points of the common-common-Law so certaine sure and without question are the principles and grounds thereof That as Sir John Davis in his preface there is no art nor science which standeth upon discourse and reason which hath her Rules and Maxims so certaine and infallible and so little subject to diverse interpretations as the common Law of England Whence Sir Edw. Coke is bold to pronounce that the Common Law of England is not incertaine in the abstract but in the concrete and that the incertainty thereof is hominis vitium non professionis the imperfection of man and not of the profession and lib. 6. f. 43. a. in particular blameth hee the subtile inventions imaginations of men in the practise of uses which have introduced many mischiefs inconveniences contrary to the ancient common law which hath certain rules to direct the estates and inheritances of men and therefore is it without comparison better to have Estates and Inheritances directed by the certaine rule of the common Law which harh beene the ancient true and faithfull servant to this Common-wealth then by incertaine imaginations and conjectures of any of those new inventors of uses without any approved ground of law or reason Coke l. 6. f. 43. a. And therefore in all cases law and equity will that incertainty bee avoided as the author of contention and that there bee an end of all controversies according to equity and right which is the finall intention of all Lawes Coke l. 8. 53. And Coke l. 1. f. 85. a. The Judges ought to know the intention of the parties by certaine and sensible words which are agreeable and consonant to the rules of Law as if Land bee given by deed to two to have and to hold to them and haeredibus it is void for the insensibility and incertainty and though it hath a clause of warranty to them and their heires that shall not make the first wordes which are incertaine and insensible to bee of force and effect in Law although his intent appeareth but his intent ought to bee declared by words certain and consonant to Law So Coke comment f. 20. b. If a man letteth Lands to A. for life the remainder to B. in taile the remainder to C. in forma praedicta the remainder is void for the incertainty And therefore Ployd f. 272. a. giveth this ground that every contract sufficient to make a Lease for yeares ought to have certainty in three limitations in the beginning of the terme in the continuance and in the end of the same all which ought to be known at the beginning of the Lease and the Lease that wanteth them Mr. Brown said is but bibble babble vide ibidem Fullers case and Coke l. 6. f. 35. the Bishop of Bathes case Ployd f. 14. a. If I give all my mony in my purse to I. S. hee cannot have an action for it unlesse hee alledge the certainty of it so as without certainety the action is not maintainable according to
incurreth for which day the husband maketh an acquittance supposing the receit of the rent for the said yeare last past and notwithstanding that acquittance his servant distraineth for the rent of half a yeare of the first year being behinde but though the last arrearages before the last terme were due to the feme dum sola fuit yet Harper and Dyer were of opinion that all the arrearages were discharged by the acquittance of the last terme because it is an antient principle That all the arrearages are discharged by the acquittance of the last terme and we ought not to deny principles Coke l. 10. f. 40. a. No man ought to dispute against recoveries the legall pillars of common assurances because we are not to dispute against principles and which St. Germins Doctor and Student c. 26. approveth to binde both in Law and conscience and by the Statute of 23. Eliz. C. 4. That for the avoyding of the dangers of assurances of Lands and the advancement of common recoveries it is provided that any common recovery shall not be avoided for any want of forme in words and not in matter of substance And Sir James Dyer then chiefe Justice did with great gravity and some bitternesse reprove an utter Barrister who rashly inveyed against common recoveries not knowing the reason and foundation of them and said that he was not worthy to be of the profession of the Law who durst speake against common recoveries which were the sinews of assurances and inheritances and founded upon great reason and authority Mary Portingtons Case vide ibidem â—lura Coke Com. f. 343. a. Principium est quasi primum caput a principle is as it were the first head from which many cases have their beginning which is so strong as it suffereth no contradiction and therefore is it said in our Books that ancient principles of the Law ought not to be disputed 11. H. 4. 9. 2. As that of every Land there is a fee-simple and that every Land in fee-simple may be charged in fee by one way or other Littleton ibidem Cessante statu primitivo cessat derivativus Coke l. 8. f. 34. a. The primitive state ceasing the derivative doth cease As if Tenant in taile maketh a lease for lives according to the Statute of 32. H. 8. c. 28. and then dyeth without issue the lease being derived out of the Estate taile shall not continue longer than the Estate taile against the opinion in 33. H. 8. 48. Dyer which was granted by the whole Court Derivativa potestas non potest esse major primitiva Noy max. f 4. A derivative power cannot be greater than it fâ—om which it is derived As the Attorny of one that is disseised cannot make claime of the Land it the disseisee durst have gone to the Land Littleton The Bayliff of a disseisor shall not say that the Plaintiff never had any thing in the Land for the Master himselfe shall not have that Plea because he is not Tenant of the Free-hold 28. Ass Pl. 4. The Servant shall be estopped to say the Free-hold is his Masters by recovery against his Master though the servant himselfe be a stranger to it for he shall not be in better condition tâ—an he whose right he claimeth 2. E. 4. 16. He that gaineth a thing on high shall neither have gaine nor losse thereby Noy Max. f. 11. As if one Joyn-tenant maketh a lease of his Joyntee and dyeth the heire which surviveth shall have the reversion of his Joynture but not the rent because he cometh in by the first Feoffor and not under his companion Dyer 187. So when the Husband is Lessee for years in the right of his wife reserving a rent if he dyeth the wife shall have the residue of the terme but not of the rent ibidem An executor recovereth and dieth intestate Administration of the goods of the Testator is committed to I. S. I. S. shall not sue execution upon this recovery Dower cannot be assigned reserving a rent or with a remainder over for shee is in from the husband and not from him who assigneth Dower Finch f. 13. Quod dignius est prius est minus digno The Law preferreth every thing according to its worthinesse Ployd f. 169. a. and therefore is every thing placed in Writs by the rule of the Register according to its dignity as the Messuage is placed before Lands the Land before Meadow and the Meadow before Pasture and the like and this dignity is taken from necessity for to have an house to inhabite and to defend his body from tempest and violence of weather is more necessary than to have Land to plow it for bread and also to have Land for bread is more necessary than to have Meadow for Hay to feed Cattell and likewise to have Meadow for Hay which will serve all the yeare is more necessary than Pasture c. ibidem And so in the Register the entire thing which is more worthy shall be demanded before the moyety part or parts As in a Replevin if it be of two beasts the one quick the other dead the living thing shall first be demanded Register Quod prius est verius est quod prius jure est potius est tempore Coke Com. f. 347. b. As in a remitter the Law preferreth the first and antient right before the latter and a sure right though it be little before a great estate by wrong which jumpeth with the rule of the Civill Law Quoties duplici jure defertur alicui successio repudiato novo jure quod ante defertur superest vetus Paulus 17. quest As if Tenant in taile discontinueth the taile and after disseiseth the discontinuee and so dyeth seised This is a remitter to the tenant in taile because the Law shall put and adjudge him to be in by force of the tayle which is his antient title for if he should be in by force of the descent then the discontinuee may have a writ of Entry sur disseissin in the per against him and recover the tenement and his damages but being in by force of the taile the title of the discontinuee is quite nullified Qualis causa talis effectus Ployd f. 292. a. Things are construed according to that which is the cause thereof as if an Executor assigne Auditors to one who was accountant to the Testator and the Auditors finde him in arrearages the Action of debt which the Executors shall have shall be in the detinet onely for the debt shall be in them as Executors and have respect to the foundation and cause 11. H. 6. f. 16. by Paston and Newton So if one have a villaine for years as Executor if the villaine purchase Land and the Executors enter the Land shall be to the use of the Testator and it shall be assets in his hands because the villain who was the cause of it was to that use Ibidem Pas 32. H. 8. E. villenage 146. Ployd f. 524. 525.
a difference between inheritances executed and inheritances executory as if Lands be executed by livery they cannot by Indenture of defeasance be defeated afterward or if the disseisee release to a disseisor it cannot be defeated by Indentute of defeasance afterwards but at the time of the release or feoffment the same may bee defeated by Indentures of defeasance for it is a Maxime in law quae inconunenti fiunt in esse videntur But Rents Annuities Conditions Warranties such like that be inheritances executory may be defeated by defeasances made either at that time or at any time after so is the law of statutes recognisances and obligations and other things executory ib. Agreeable to this rule is the reason of the case put by Bro. judgement 148. That if a Feme suffer a recovery of her joynture against the statute of 11 H. 7. without the assent of him in the reversion and after hee in the reversion releaseth to the recoveror by Fine that assent commeth too late and cannot make the recovery good was once void and for the same reason the consent of the major part of a Chapter must bee done at one time simul semel and not scatteringly or at severall daies vide Davis Rep. f. 48. b. So Pl. f. 135. a. b. A Lease by deed for 11. yeares and in security of the terme the Lessor made a Charter upon condition that if he was disturbed of his terme he should have fee and livery and seisin was made as well upon the one Charter as the other then the Lessee was disturbed and it was adjudged that he should have fee because the Charters were delivered at one and the same time T. 10. E. 3. f. 521. Tempus est mensura motus secundum prius posterius Aâ—ist 4. Phys Time is the measure of motion according to priority and posteriority for as the motion doth measure the place so doth time the motion as a days journey is measured of a day and an houres of an houre and because all contracts and matters of entercourse doe fall within the lists and precincts of time therefore the moments and measures of time should be publikely and familiarly knowne to popular conceits For tempus est mensura rerum time is the measure of all things and as Ployd f. 555. b. the diversity of estates proceeds from the diversity of time for the estate in Land is the time in Land for he that hath a fee-simple in Land hath time in the Land without fine or the Land for time without end so he that hath land in taile hath time in it or the land for time so long as hee hath issue of his body and he which hath an estate in Land for life hath time no longer then that he shall live and so for another mans life or yeares And as the time measureth things so doth the law measure time as by the true computation the lesser yeare consisteth of 865. daies and six houres whereby in every fourth yeare there is die excrescens which maketh that yeare to have 366. daies which is called the greater yeare yet by legall computation a quarter of a year containeth 91. daies half a year containeth 162. daies for the od houres in legal computation are rejected And in the statute de annob Sextil it is provided Quod computetur dies ille excrescens dies proxime praecedens pro uno die that the day excrescent and the day precedent shall be computed for one day so as in computation the day excrescent is not accounted so a month is regularly accounted in law for twenty eight daies and not according to the Solar month nor according to the Kalender unlesse it be for the account of the Lapse in a Quare impedit or the right of the Patron Coke com f. 135. b. And Kellaway 21. H. 7. f. 75. A feast in our law beginneth in the morning and endeth at the night and the naturall day beginneth ad ortum solis and endeth ad occasum solis and so is it taken and adjudged in our Law But the feast by the law of the Church beginneth at noone in the Vigil and lasteth untill the midnight of the next day and the night which maketh burglary beginneth ad occasum solis and lasteth untill the rising of the Sunne for where a man hath broken an house after the setting of the Sun it hath beene adjudged burglary for if the night should begin so soone as the day is ended and last untill the morning of the next day it would be too hard a thing to try c. ibidem In omnibus stipulationibus id tempus spectatur a quo contrabimus Reg. I.C. Paulus 62. ad edictum in all assumpsits and contracts that time is respected from which we contract as a man seised in fee maketh a lease for ten yeares and after selleth the land and taketh it back againe to him and his wife and then the husband and wife letteth it for twenty years reserving a rent the husband dieth the wife accepteth the rent for the first ten yeares by this the second lease is not affirmed for the acceptance of the rent before the lease beginneth and is not due is no acceptance 1. E. 6. 37. Coke l. 5. f. 1. a. b. in Claytons case From henceforth in a Lease shall be accounted from the delivery of the Indentures and not from the computation of the date for from henceforth is all one to say as from the making of the Lease Et traditio loqui facit chartam delivery maketh the deed to speake where a Lease is to begin from the making of a Lease there the day of the delivery shall be taken inclusive and the day it selfe is parcell of the demise but if it be made to begin from the day of the making or the day of the date then the day it selfe shall be taken exclusive and excluded And whereas the statute of 27. H. 8. Of enrolement saith That all such writings shall be enrolled within six monthes after the date of the same writings indented if the writings have date they shall bee accounted from the date but if the date be wanting the six months shall be accounted from the delivery vide ibidem plura In obligationibus in quibus dies non ponitur presenti die debetur Pomponius nulla temporis designatio praesens denotat Reg. I. C. And it is a ground in our Law that when a man 's bound in twenty pound to pay ten pound and no day of payment is limitted the lesser sum is due presently and ought presently to bee tendred 20. E. 4. 8. 21. E. 4. 8. In the case of the Mayor of Exeter by all the Serjeants and of some of the Justices yet by the opinion of Starky the discretion of the Justice shall limit a time having regard to the distance of the place and to the space of time wherein such a thing may be performed for the Obligor is not
shall not be intended onely of a person who hath judgement of life but also shall be extended to a person convict by confession or verdict for a person attainted is a person convict and more and every greater containeth the lesser Coke l. 5. f. 115. a. It was resolved in Woods case that if a man tendreth more then he ought to pay it is good enough for every greater containeth in it self the lesser and the other ought to accept so much of it as is due unto him Quando plus fit quam fieri debet vâ—detur etiam illud fieri quod faciendum est in mâ—jâ—ri summa continetur minor when more is done then ought to be done that seemes to be done which was to be done and the lesser sum is contained in the greater Ployd f 349. b. The disseisor maketh a Lease for life and the Disseisee confirmeth the estate of the Disseisor the Disseisee cannot enter upon the tenant for life for his right was to all the estate of the Land and if he be barred of the Fee simple he is barred from the estate for life for every greater containeth in it selfe the lesser An action of battery is brought and the evidence proveth it a maime and well because it is battery and more 31. Ass pl. 1. Omne majus continet in se suum minus 28. H. 8. b. By a pardon of Murder Manslaughter is pardoned and and an attaint supposing a verdict to have passed between two Justices whereas it passed before three good enough A recovery pleaded of three acres where it was of six is good enough Finch Nomot f. 31. Where the Custome is that a man shall not devise his Lands for any higher estate then for life yet if the devise be in fee and the Devisee claimeth but for life the devise is good Dyer 150. b. Vpton by his last will in writing deviseth an entire mannor holden by Knights service in fee and it was adjudged a good will for two parts and not void for all A Quâ—re impedit in the Register is praesentare ad Ecclesiam by this he may count pro tertia parte Coke l. 10. f. 136. b. in Richard Smiths case A Procedendo supposeth an Assize before Stouse and Burton Justices and it was also before Shard and good because three containeth two Ployd Where by the Custome of a mannor a man may demise for life he also may demise to his Wife durante viduitate because the greater containeth the lesser Coke l. 4. Non debet cui plus licet quod minus est non licere Regula I. C. Cui licet quod majus non debet quod minus est non licere Coke l. 4. f 23. a. To whom it is lawfull to doe the greater thing to him it is not unlawfull to doe the lesser As where the Custome of the mannor is that Copy-hold Lands may be granted to any one in Fee-simple there the grant to one and his Heirs of his body is within the Custome for he that may lawfully doe the greater it ought not to be unlawfull but that he may doe the lesser Coke l. 9. f. 48. b. There is a great diversity between an Assignee and a Deputy of an Office the Assignee hath an interest in the Office and maketh all things in his owne name and for whom his Grantor shall not answer unlesse it be in some speciall cases but a Deputy hath no interest in the Office but is but a shadow of an Officer and doth all things in the name of the Officer and for whom his Grantor shall answer and when an Officer hath power to make Assignes he may implicitely make a Deputy for to whom that which is greater is lawfull to him that which is lesse is not unlawfull and by consequence when an office is granted to him and his Heirs by it he may make an assignee and by consequence a Deputy Sicut beatius ita majus est dare quam accipere Coke l. â— f. 57. b. There is a manifest diversity between a receiver and giver of seisin for he that hath a terme for years may receive seisin to the benefit of him which hath the Frank-tenement and all our Bookes are that the possession of a Lessee for years or guardian is a sufficient seisin for him in the reversion but he that giveth seisin is tenant of the Frank-tenement and therefore greater then Tenant for years that receiveth for it is a greater thing to give then to receive and therefore Tenant for years by his payment cannot give seisin to binde him which hath the Franke-tenement vide ibidem plura in Bredimans case Omne magis dignum trahit ad se minus dignum Coke Com. f. 44. a. b. The more worthier thing drawâ—th unto it the lesse worthy the Charter granted by H. 3. in the ninth yeare of his reigne was of force and validity notwithstanding his nonage for that in judgement of Law the King as a King cannot be said to be a minor for when the royall politick body of the King doth meete with the naturall capacity in one person the whole body shall have the capacity of the royall politick which is the greater and the more worthy and wherin there is no minority for the more worthier thing draweth unto it the lesse worthy vid. Coke l. 2. f. 68. in Tooker's case ibidem f. 285 a. Three Joynt-tenants are disseised and they arraigne an assize and one of them releaseth to the disseisor all actions personall this shall bar him but not the other for having regard to him the realty as the more worthy shall be preferred and the greater worthy draweth to it the lesse worthy ibidem 355. b. It was said that upon a recovery had by default in an action of Wast against Tenant in Dower a quod ei de forceat did not lye because in an action of Wast Damages were the principall as most antient and that therefore cleerely no quod ei deforceat did lye but it was answered that the place wasted was the worthier being in the realty then Damages that be in the personalty though more antient omne magis dignum trahit ad se minus dignum quanquam minus dignum sit antiquius a digniori debet fieri denominatio and every more worthy draweth unto it the lesse worthy though the lesse worthy is more antient and a denomination ought to be from the more worthy vide ibidem plura Coke l. 6. f. 43 b When an action is in the realty or mixt with the realty accord with satisfaction is no Plea for accord with satisfaction is a bar for the personalty but not for the realty and when the personall is mixed with the realty it is no bar for the personalty for allwayes the greater draweth unto it the lesse vide ibidem plura in Blâ—kes case Charters are put into a box this alters the nature of the box from being a Chattel and shal go to the heire and as
Court 34. H. 6. 43. And a maihme may be tryed by the inspection of the Court 28. Ass 38. If question be made whether they be summoners and viewers which appeare it shall be tryed by the examination of the Justices 33. H. 6. 10. So whether an Earle be an Earle or a Baron a Baron or no shall not be tryed by the Country nor by the Justices but by the writ of the King Coke l. 5. in the Countesse of Rutlands case And in Plea of an alien borne the league between the King and the Soveraign of the alien borne shall be tryed by the record of Chancery for every league is of record and generally all matters of record shall be tryed by the record it selfe and not by the Country or otherwise Coke l. 9. f. 31. vide de hoc plura ibidem And when a man is found an idiot from his nativity by office he who is so found may come into the Chancery before the Chancellor and pray that before him or such Justices or sages of the Law he may be examined whether he be an idiot or no or by his freinds may sue a Writ out of the Chancery retornable in the Chancery to bring him into the Chancery there before us or our counsell to be examined and if he be found upon that examination not to be an idiot the office so found c. is utterly void without any traverse or monstrans de droit or otherwise F. n. b. 233.10 E. 3. Title Livery 30. An Apostate shall be certified by the Abbot or other religious governor to whom he oweth obedience F. n. b. 232. In an appeale or upon an approvement the Defendant may pleade not guilty and try it with the Plaintiff by combat or battaile in person before the Justices 9. Ass Pl. 1. But the Defendant is restrained from choice of battle if there be any notorious presumption of the fact in him Finch Nomoâ— f. 422. vide ibidem plura And in a Writ of right the tenant may joyne issue upon the meere right and try it by combat or battaile by his champion with a free-man the champion of the demandant and not in person before the Justices 9. E. 4.35 If it be in question which of the Sheriffs made such a retorne it shall be tryed by the Sheriff 9. H. 4.1 If question be made if such a one be Sheriff it shall be tryed by the examination of the Sheriff himselfe 10. H. 4.7 Yet is he made by Letters Patents on record and therefore it also may be tryed by record 32. H. 6.27 A retorne made by the under Sheriff if it be denied shall be tryed by the under Sheriff and the Sheriff cannot disavow it if he confesse him to be his under Sheriff 10. H. 4.7 If an approver say that he commenced his appeale before the Coroner by duress that shall be tryed by the Coroner and if the Coroner deny it he shall be hanged 12. Ass 29. Tryall if the Statute shewed forth be a true Statute or no shall be tryed by the examination of the Mayor and Clerk of the Statutes who took the Statutes F. N. B. 104. H. In Assize the Tenant saith that the Lands are taken into the hands of the King it shall be tryed by the examination of the Escheator 9. H. 4.1 To a petit Cape the Tenant saith that he was in Prison three dayes before and three dayes after it shall be tryed by the examination of the Attorny 13. R. 2.22 Not attached within fifteen dayes in an assize shall be tryed by the examination of the Bayly So that the tenant was not summoned according to the Law of the Land shall be tryed by Law-gager and the Law-gager doth countervaile a Jury for the tenant shall make his Law duodecima manu to wit by eleven besides himselfe unlesse it be against a Corporation for then it shall for necessity be tryed by the Country because it cannot wage Law In a Writ of deceit upon a Recovery by default the tryall shall be if the judgement was given upon the petit capit by the Summoners if upon a grand Cape by the Summoners Pernors and Viewers 48. E. 3.11 So if a Recovery by default in a reall action be pleaded and the other saith not comprised it shall be tryed by the Summoners and Viewers 10. H. 4.7 and yet their is no remedy if they speake falsly and therefore ubi majus periculum ibi cautius est agendum where there is a greater danger there we ought to be more wary The cause of challenge shall be tryed by two tryers to be appointed by the Justices 9. E. 4.5 But the tryall of any one of the grand Jury shall be taken by foure Knights Tryall may be in debt upon a simple contract detinue c. either by Law gager by the Defendant himself or by the Country at the election of the Defendant 30. Ass P. 19. Coke l 9. f. 32.33 And Coke com f. 74. If a Subject of the King be killed by another of his Subjects in a forraine Country the wife or heire of the dead may have an appeale for that murder or homicide before the Constable and the Marshall whose sentence is upon testimony of witnesses or combat and their proceedings according to the civill Law and not by the oath of twelve men and so was it resolved in the twenty fifth of Elizabeth in the case of Sir Francis Drake who struck off the head of Dowty in partibut transmariuis that his Brother and Heire might have an appeale but the Queen would not constitute a Constable of England and therefore the appeale was dormant And Coke com f. 261. b. By the Statute of 25. E 3. De proditionibus it is declared that it is Treason by the common Law to adhere to the Enemies of the King within the Realme and without if he thereof be proveablement attaint of overt-fact and that he shall forfeit all his Lands c. But least the common Law declared by Parliament should be illusory and that the Delinquent might not be attainted thereof for necessities sake the adherency without the Realme must be alledged in some place within England and if upon evidence they shall finde any adherency out of the Realme they shall finde the Delinquent guilty but most commonly they endited him if he had Lands in some County where the Lands did lye that were to be forfeited and so it is declared by the Statute of 35. H. 8. And that it shall be tryed by twelve men of the County where the Kings Bench shall sit and determined before the Justices of that Bench or else before such Commissioners and in such Shire of the Realme as shall be assigned by his Majesties commission and this Statute for this point remaineth in force at this day and so was it resolved by all the Judges 33. Eliz. in Orurks case and 34 Eliz. in Sir John Perots case for Treasons done in Ireland for that it is out of the Realme
except in case where the Owner is bound to inclose 4. E. 4 19. 10. E. 4. 7. But if a man erect a wall part on my Land and part on his own if I distroy that on my Land and the rest by that meanes falleth downe it is excusable If a Feoffment be made to two joyntly one of them cannot dereigne the warranty without the other 48. E. 3. 17. Yet if a villaine and another purchase joyntly and the Lord of the villaine enter into a moyety he may dereigne the Warranty alone for therein the severance groweth by act in Law He that commeth into a Taverne and will not goe out in reasonable time or distraine for rent and killeth the distresse shall be a wrong doer ab initio 12. E. 4. 8. Because he misdemeaneth that the authority the Law giveth him Otherwise it is if I lend my horse to one to ride to York and he rideth him further yet the riding further is not unlawfull neither a generall action of Trespass lyeth against him upon the accord upon the case because he misdemeaneth but the authority that another hath given him Finch Nomot f. 47. If I be distrained and pay my rent and after am denied to have my goods delivered an action of Trespasse or detinue lyeth 21. H. 7. If I deliver a chest to one who breaketh it Trespasse lyeth 2. H. 8. If a Sheriff maketh an arrest and returneth not the Capias an action of Trespasse lyeth 8. E. 49. An executor commandeth the taking of the goods of the Testator and refuseth to prove the will a Trespasse lyeth 8. E. 4. 9. The Sheriff seiseth the goods of one outlawed and doth not charge himselfe in account the Outlawry being reversed or the party pardoned he shall have an action of Trespasse against the Sheriff 21. H. 7. 23. Injuria illata incorpus non potest remitti Reg. I. C. injury which is offered to the body cannot be remitted and the reason given by the Civilians is quia nemo membrorum suorum Dominus because no man is Lord and Master of his members but the power of them appertaine to God our Creator and the Prince our Protector which accordeth with the reason of the common Law which maintaineth as Bracton saith quod cita membra sunt in postate Regis as it is in the record of 19. E. 1. Rot. 36. vita membra sunt in manu Regis that the life and member of every Subject are under the safe-guard and protection of the King to the intent they may serve the King and their Country when occasion shall be offered Nay the Lord of a villaine for the cause aforesaid cannot maihme his villaine but the King shall punish him for mayming of his Subjects by Fine Ransome and Imprisonment untill the Fine and Ransome be paid for that hereby he hath disabled him to doe the King service Coke com f. 127. a. And therefore also doth the Law more carefully provide for the preventing and punishing of such forcible injury in particular between person and person because as Coke com f. 161. b. Max. paci sunt contraria vis injuria forcible injuries are most contrary to the quiet and repose of the Common-wealth which is the publick felicity both of Prince and people As if one doe but menace another with a weapon or staff or if he stretch out his arme or give any other token whereby his intention of striking doth appeare though never a stroake be given yet is it actionable 22. Ass Pl. 60. And upon an assault the Writ was Quare insultum fecit vulneravit maihemavit and though the injury did not appear to be a maihm yet was it allowed 43 E. 4. For the Law favoreth the Plaintiff in such Actions And though force be an enemy to peace yet is it a maxime in our Law Quod quisque in tutelam corporis sui fecerit jure fecisse videatur Fulb. l. 1. f. 91. whatsoever any one doth in defence of his body it seemeth to be done by Law according to the opinion of the Poet. Judice me fraus est concessa repellere fraudâ—m A maque in armatos sumere jura sinunt I doe conceive it a good fraud to be To repell fraud and lawfull eke for me To take up armes ' gainst those I armed see As 2. H. 4 8. Bract. If any man beat me I may lawfully beat him if I cannot escape without stâ—ips wounds or maihmes Nay 9. E 4. 3. I may beate him in defence of my goods or wife contrary to the resolve of 43. Ass 39. That it is not lawfull for me to beat him if I may escape with my life And 9. E 4. A servant may justify a battery in defence of his Master and 17. E. 4. 4. He that cometh in company of him who maketh the assault or cometh in to aid him is a principall Trespassor and if a Justice of Peace see a man doing of an assault he may presently arrest him by commandment or word to the intent that he may find surety of peace 9. E. 4. 3 And by the civill Law if any one do keep or nourish a Masty Dog Beare or Fox or some like beast which doth hurt or damnify another man he that receiveth the hurt shall recover damages against the Owner of the beast Fulb. l. 1. f. 81. And so at the common Law if a man hath a Dog which killeth Sheep and hath notice of the condition of the Dog the master shall be punished for it as may be gathered out of Dyer 28. H. 8. f. 25. Pl. 162. Otherwise if he be ignorant thereof or if it be done without the Masters incitation ibidem f. 19. And whereas in many cases that concerne Lands and Goods the Law doth deprive a man of present remedy and rather then to suffer an inconvenience turneth him over to a further remedy yet if the question be of a personall paine the Law doth give him present remedy because he holdeth no damage a sufficient remedy for a corporall injury which ground as Sir Francis Bacon ingâ—niously observeth some of the Canonists do aptly inferr out of Christs sacred mouth Amen corpus est suâ—ra vestimentum verily the body is more worth then rayment where they say vestimentum comprehendeth all outward things appertaining to a mans condition as Lands and Goods which they say are not in the same degree with that which is corporall Bacon Max. f. 30. As if a Sheriff make a false returne whereby I loose my Land yet because of the inconvenience of drawing things to delays if the Sheriffs returne should not be credited I am excluded of my averrement against it and am put to my action of deceite against the Sheriff and Summoners 5. E. 4. 80. But if the Sheriff upon a Capias returne a Cepy Corpus quod languidus est in prisona I may come in and falsify the returne of the Sheriff to save my imprisonment 3. H. 6. 3. So if a man
Which giveth a Writ of Formedon in the remainder against the pernors of the profits was made for oppression of covin for the Feoffment made to persons unknown to defraud them who had right to the Land was a great covin and deceite in Law and therefore a Scire facias to execute a remainder shall be maintainable against pernors of the profits Ployd f. 59 b. in Wimbishes case So in Twins case l. 3. f. 82. It was resolved by the whole Court that Statutes made against fraud shall be liberally and favorally expounded to suppresse fraud because fraud and deceite abound more in these days then in former times where you may finde in Pennyfoots case and diverse other cases to that effect and purpose Quod alias bonum justum est si per vim vel fraudèm petatur malum injustum est Coke l. 3. s 78. a. what otherwise is good and just if it be acquired by force or fraud is evill and unjust and as Ploydon saith Covin may alter the marter though the title be good and covin to have recovery may be as well where the title is good as where it is faint and bad And therefore the Book is M. 15. E. 4.4 If a feme have cause of dower and is of Covin that the tenant shall be ousted by A. against whom shee recovereth and hath execution that her estate shall be adjudged against the Disseissee by disseisin and shall not hold it but shall be a Disseiseresse and yet the title of recovery is good and true but the Covin is the cause of it Ployd f. 59. Coke l. 3. f. 78. a. So if issue in tail who hath good cause to have a Formedon in the Descender upon discontinuance be of Covin that A. shall disseise B. against whom he doth recover he shall not be remitted although his title is good but shall be adjudged a Disseisor by reason of the Covin M. 10. H. 8. And in 19. H. 8. Where one disseised tenant in taile by Covin to the intent to enfeoff the issue in taile within age who had no cognisance of the Covin and he enfeoff him he shall not be remitted by the better opinion notwithstanding his good title and the covenous intent is the cause onely Ployd f. 51. 54. And so is it there holden by six Justices Coke l. 3. f. 78. in Fermors case And the reason there given is because he that is in by him that made the Covin shall be in the same plight as he that made the Covin and yet infants are much favored in Law It was found by office that one F. that had good cause of action of ad terminum qui praeterij◠against an infant in by descent caused one H. to disseise the Heire by Covin against whom he recovered by his Writ of Entry ad terminum qui praeterjit whereupon this Office found the King of whom the land was holden had restitution to the Land during the nonage of the heires notwithstanding the plea and averment of F. in maintenance of his title so as though the title was good yet if covin was practised by him who had title to come to it he shall not be remitted Ployd f. 48. b. 41 Ass 28. For the common Law so abhorreth fraud and covin as all acts as well judiciall as others and those who of themselves are just and lawfull yet being mixed with fraud and deceit are in judgment of Law injurious and unlawfull Coke l. 3. f. 78. a. And so Coke l. 4. f. 113. a. in Adams case A man deviseth Tenements to superstitious uses and to good and charitable uses as to teach a Grammar Schoole yet because the good and charitable uses were mixt with superstitious uses and nothing in certaine was limitted to a good use in such case the commixture of the evill use with the good use infecteth the good use as a little poyson commixed with a great quantity of Wine or as truth mixed with covin turned the goodnesse of the one into the naughtinesse of the other And 19 H. 8. 12. If a man make a disseisin with the intent to make a Feoffment with warranty although he make the Feoffment twenty moneths after yet it is a warranty commenceth by disseisin Ployd f. 51. So if one make a gift in taile to another and the Uncle of the Donor disseise the Donce and maketh a Feoffment with warranty and the Uncle dyeth and the warranty descendeth upon the Donor and then the Donee dyeth without issue the Donor bringeth a Writ of Formedon in reverter and the Tenant pleadeth the Feoffment with the warranty the Demandant shall avoyd it because it commenced by disseisin and yet the disseisin was not immediately made to the Donor but to the Donee but by it his reversion was devested and yet warranties are much favoured in Law It is a rule in the Civill law Neminem ex suo dolo calliditate relevari that no man is releived by his fraud and deceite And it is an erudition in the common Law Fraus dolus nemini patrocinari debent Fraud and deceit ought not to be patronized in any Coke l. 3. f. 78. b. There is dolus bonus and dolos malus say the Civivilians dolos bonus is when a man doth devise any plot to entrap a theef or offendor and this cannot properly be called fraude but solertia and cunning and such a kind of cunning is practised in war-fare by which more victories are atcheived then by maine force as Tacitus plura consilio L. 1. An. quam vi geruntur But dolus malus is a subtile devise used to the deceiving another or the Law and this deceit doth not in out Law escape punishment but affordeth a double remedy against such who endamage others by deceit either a Writ of deceite or action upon the case As if I. present one to a Church being Patron and one T. disturbeth me and another in my name purchaseth a Quare impedit without my knowledge against the said T. and after causeth the Writ to be abated or I non-suite in the action I may have a Writ of deceit against him 55. E. 3. Quare impedit 37.20 H. 6.20 And an action of the case is maintainable against him who sueth an originall in the name of the Plaintiff against his will 7. H. 6.45 So if any one forge a Statute Merchant in my name and sue a Capias thereupon whereby I am arrested and had in execution a writ of deceit lyeth against him 19. H. 6.44 So if the guardian of an infant vouch one by covin who is not sufficient or pleadeth a bad plea whereas he might have pleaded a better the infant shall have a writ of deceit against him and recover the full value in damages 9. E. 4.34 A writ of deceit was brought against an Attorny for acknowledging satisfaction whereas his Master was not in truth satisfied 11. H. 6.34 In a Praecipe quod reddat if the Sheriff returne the
specie virtatis umbra Vice fairely enbellished with virtues shape And shadow doth often men delude H. 7. f. 2. As Richard the third did many whose virtues as Sir Francis Bacon histerizeth it were feined and affected things to seek his ambition and not true qualities engendred in his judgement and nature But though as Matchevill saith such vertuous shews and shadowes are sufficient to please and delude the people yet the Law Divine and the Law Humane which dimaneth from the Divine is able and doth distinguish between good and evill and as the great Legist of Rome imperat honesta prohibet contraria commandeth that which is good and honest and inhibiteth that which is evill and impious and so doe the Justices and Judges of the Law for as Bodin saith Eodin M. hist f. 50. Qui in litibus versantur Judiciorum communione omnia mala norunt nec mala duntaxat siditiam bona sinc quibus illa constare percipi nullo modo possunt bonorum autem malornm finibus omnis humana prudentia continetur Those who are versed in suits of Law by the participation of Judgements know all evill things and not onely evill but also good things without which they can no way consist or be perceived but in the limits and bounds of good and evill all humane prudence doth consist and therefore by the Law as the same Legist saith are proposed and appointed praemia virtutibus supplicia vitiis rewards to virtues and punishments to vices and is so severe in the censure of vice and evill that it will not permit any one to doe evill that good may come thereof As the Law will not permit a Creditor who is not Executor to take and retaine the goods of the Testator to pay and satisfy himselfe though the payment of his debt be a good and honest thing for by that meanes if the goods of the Testator be not sufficient to satisfy all the Creditors the rest shall be barred and if the Law should give him that power it should be the cause and occasion of wrong and the Law of God saith you shall not do evill that good may come thereof Coke l. 5. f. 30 b. And therefore doth our Law terme such an one an Executor of his own wrong and so in 17. E. 3. 59. The Friers Carmelites who had then no habitation obtained of one I. M. who was seised of ten Acres of Land of the Bishop of Winchester to have those acres of Land for their habitation and because the said I. M. could not grant to them those ten acres by reason of the Statute of Mortmaine the said I. M. and the Carmelites by covin between them to make an evasion out of the Statute of Mortmaine granted the said ten Acres to the King his Heirs and Successoers by which the Signiory of the Bishop should be extinct to the intent that the King shal grant it over to the Friers Carmlites which was done accordingly and for that it was by covin contrived before to take the Bishop from his Signiory which was an evill act it was adjudged that the Charter shall be repealed and the Friers Carmelites should be constrained to render their Charter to be cancelled for though the Friers Carmelites were of the profession of religion and had no habitation before so as it seemed a work of piety and charity to provide an habitation for them yet you shall not doe evill that good may come thereof Coke l. 11. f. 74. a. Contra jus na urale est malum pro bono reddere Ployd f. 405. b. It is against the Law of nature to render evill for good As it was a Law in a City that strangers who did goe or clime up to the Walls of the City should be punished with death but it happened that strangers innocently passing by the City heard a noise that the Enemy would suddenly assault and sack the City whereupon the strangers more reddily then the Citizens got upon the Walls and defending the City now the debate whether they should dye as the Law commanded and it was answered not because it is against the Law of nature to render evill for good vide ibidem plura Beneficium nulâ—i obtrudiâ—ur Pap. f. 212. The Law doth not obtrude or doe good turnes to one whether he will or no and therefore an alien borne shal not have medietatem linguae unlesse he request it So Damages ex incremento are allwayes to be assessed ex petitio ne quaerentis and so are costs ex incremento and upon a Writ of Error because in the beginning of the judgement it was said ideo ad petitionem quaerentis consideratum est and not ideo consideratum est ad petitionem quaerentis and the words were displaced the Judgement was reversed for the words misplaced will not supply this defect for if the usuall forme should not be observed all would fall into a confusion and in as much as the words are misplaced it is as if they had not been put in at all and therefore void like unto the case put in Walsinghams case in Ploydon where an averrment misplaced is as if it were none vide ibidem plura in Goods case Malum quo communius eo pejus an evill thing the more common it is the worser it is Coke l. 4. 109. b. For as the more common a good thing is the better it is so the more common an evill thing is the worser it is for contrariorum contraâ—ia est ratio for as the true service of God which is in publick Churches is better then that which is in private Churches for the generall good that by it may accrew so all superstitious uses which are in publick Churches are worse then those which are in secret Chambers for the generall prejudice which may accrew by them vâ—de ibidem plura Theft in the beginning in most Nations was not punished with death but with satisfaction or some lessor punishment the Pretors of Rome did punish a theef paena quadâ—upli with a foure fold satisfaction and the Jewes with seven fold or if his goods would not amount to so much with all the goods in his house Pro 6. 31. The Misians did punish petit Larceners with whips but if a thing of good value be taken away they must render the nine fold or else be put to death Fulb. Pard f. 80. But when the malice of men did increase an iniquity did abound that as the Poet in facinus jurasse putes and that many turned the crime of stealing into a trade of living and did not gaine their lively-hood with their hands by working but with their fists by fighting and stealing as the Comedian facitely ventri pugnae dant ventri suo the detriment to the republick and community of the offence made it capitall so as though the offence and the punishment being compared that Law may seeme unjust yet as Metsner faith Cum nullam aliud supersurit remedium
that he had an intention to kill another person Ployd Com. f. 474. b. So if an impoisoned apple be laid in a place to poison I. S. and I. D. cometh by chance and eateth it this is murder in him that laid it because in the ministration of it he had a malitious intent of death which is still connexed to his person because he was the originall founder of his death But if a man lay venome in diverse parts of his house to kill Rats and a person cometh and eateth it and dyeth of it it is not felony in him because he was void of any malitious intent to hurt any reasonable creature but otherwise it is if he had ministred it to kill a reasonable creature and another reasonable creature had been slain by it that he intended not and he shall be punished for it because he had an evill intent vide ibidem plura in Saunders case And if a man perswade another to kill himself and he be present when he doth so he is a murderer for his evill intent Bac. Max. f. 60. If I discharge a Caliver with a murtherous intent at I.S. and the peece breaketh and striketh into my eye and killeth me I am felo de me because I had a murtherous intent and yet had no intention to hurt my selfe ibidem Res profecto stulta est nequitiae modus Coke l. 11. f. 86. b. In the case of Monopolies it is a foolish thing verily to imagin any meane in iniquity As the sole trade of any mechanicall Artifice or any other monopoly is not onely a damage and prejudice to those who exercise the same trade but also to all other Subjects for the end of all those Monopolies is the private gaine of the Patentees and though provisions and cautions be added to moderate them yet it is meer folly to think that there is any measure in mischeife or wickednesse Ibidem Excessus in requalibet jure reprobatur communi Coke l. 11. f. 44. a. Excesse in every thing is disallowed in the common Law for all vertuous actions consisteth in the meane and vicious in the excesse and extreame and the Law advanceth that is good and virtuous and suppresseth what is evill and vicious Some Courts may fine and not imprison as the Court of the Leet and some can onely amerce as the County Court Hundred Court and Court Baron and some Courts may fine imprison and amerce as the case shall require as the Courts of Record at Westminster or else where for no Court can fine and imprison but a Court of Record F. N. B. 37. b. Yet all Amercements and Fines which be in the excesse are contrary to Law as Magna charta c. 14. Excessive Amercements are against Law Nullus liber homo Amercietur nisi secundum quantitatem delicti no Free-man may be amerced but according to the quantity of his offence if Fines of the Copy-holder of a Mannor be uncertaine the Lord cannot exact expressive and unreasonable fines and the Copy-holder may deny to pay it and the reasonablenesse of the fine shal be determined by the Justices c. Quam rationabilis debet esse finis non definitur sed omnibus circumstantijs inspectis pendet ex justiciariorum discretione how reasonable the fine shal be is not defined but all the circumstances being inspected it dependeth upon the discretion of the Justices If tenant in dower hath villaines or tenant at will which are rich and they by excessive tallages and fines make them poore or exuls it is adjudged to be contrary to Law and to be wast 13. H. 3. Title Wast 135. F. N. B. 178. b. because it is ad exhaereditationem to the dis-inheritance of him in the reversion So excessive distresses are prohibited by the common Law 41. E. 3. f. 26. For the act de articulis super Chartas non capietur gravis districtio extendeth to the King onely So excessive and outragious aid is against Law as appeareth by the Statute of W. 1. cap. 35. Plus peccat author quam actor Coke l. 5. f. 99. the Author offendeth more then the actor The Statute of 5. Eliz. c. 9. hath two branches the first is against procurors of perjury and that is in matter depending in suit by Bill Writ Action or Information so as the procurement of perjury upon enditement is out of that branch the second branch is a purview against those who commit perjury by his or their depositions in any Court mentioned or being examined in perpetuam rei memoriam though that clause be generall and not restrained by any words to such particular suites by Bill Writ Action or Information as the first was yet in good construction that branch shall have reference to the first and shall be expounded by it otherwise the party who suborneth perjury and procureth him who committeth the perjury shall passe without punishment which shall be contrary to reason and the intention of the makers of the Act and some say that the author offendeth more then the actor and therefore was Flowre who was endited upon the Statute of 5. Eliz. for perjury in giving false evidence to the grand inquest upon an enditement of Riot by the Judgement of the Court was discharged of that enditement ibidem Peccatum peccato addit qui culpae quam fecit patrocinia defensionis adjungit Coke l. 5. f. 49. b. He addeth offence to offence who adjoyneth a Patronage of defence to a fault he hath committed As he who doth wrong and at the first confesseth the fault and obeyeth the commandment of the King by his Writ shall not be amerced and therefore pendenter facit praecepto legis obtemperat he doth wisely who obeyeth the precept of the Law but every one who doth wrong and being commanded by the Writ of the King quod juste sine dilatione reddat c. that he justly and without delay restore c. and he unjustly maintaineth the wrong of Record in the Court of the King and with great delay constraineth the demandant by the course of Law addeth offence to offence in his unjust Patronage of the defence of it and therefore shall be amerced Excusat aut extenuat delictum in capitalibus quod non operatur idem in civilibus Bac. Max. f. 314. In capitall causes in favorem vitae the Law doth excuse or extenuate the fact of the offendor except the malice of the will and intention appeareth but in civill Trespasses and injuries the Law doth rather consider the damage of the party wronged then the malice of him which was the wrong doer As the Law maketh a difference between killing a man upon malice fore-thought and upon present heat but if I give a man slanderous words whereby I damnify him in his fame and good name it is not materiall whether I use them upon suddaine choler and provocation or of set malice but in an action upon the case I shall render damages alike So if a man be killed
the Law without having regard to the conclusion of the Jurors who ought not to take upon them the judgment of the Law for quod quisque novit c. Ploâ—d Câ—m Amie Townsdens case 5 H. 17. Carus case c. Coke Com. f. 3. b. If an office either of the Grant of the King or subject which concerneth the Administration proceedings or execution of Justice or the Kings revenue or the Common-wealth or the interest benefit or safety of the Subject or the like If these or any of them be granted to a man that is unexpert and hath no skill and science to exercise or execute the same the Grant is meerly void and the party disabled by Law and uncapable to take the same pro commodo regis populi for only men of skill knowledge and ability to exercise the same are capable of the same to serve the King and his people ibidem An Infant is not capable of the Office of a Stewardship of a Mannor either in possession or reversion ibid. and the Civill Law Impubes ab omnibus officiis civilibus debet abstinere Coke l. 11. f. 87. a. The case of Monopolies a Patent made to Sir Edward Bury for the making of Cards was void because he had no skill in making them though the Patent was to him and his Deputy yet if the Grantee himself be inexpert he cannot make a Deputy who is skilfull to supply his place Quia quod per me non possum nec per alium for what I cannot do by my self I cannot do by another Imperitia culpae adnumeratur Reg. s e. Imperitia maxima est mechanicorum poena Co. l. 11. f. 57. a. Ignorance and unskilfulness is accounted a fault and is the greatest punishment of Artists and Mechanicks As 7 E. 3. 65. b. If he that taketh upon him to work be unskilfull and ignorant it is sufficient punishment to him for if any man take upon him to work and doth it amiss an action of the case lyeth against him Ignorantia Juris non excusat The ignorance of the Law doth not excuse Dr. Stud. l. 2. c 46. Ignorance of the Law though it be unvincible that is to say that they have done that in them is to know the truth doth not excuse as to the Law for every man is bound at his perill to take notice what the Law of the Realm is as well the Statutes as the Common Law for all Statutes are made in Parliament and Burgesses are the representatives of the Commons and therefore is alone as if all the Commons had been there present An Infant of the years of discretion may be a Felon and a Trespasser according to the civill Rule Pupillus qui proximus est pubertati capax est furendi injuriae faciendae An Infant who is next to the age of puberty that is of fourteen years is capable of stealing and doing injury though he be ignorant of the Law but that is by the old Maxime of the Law for the eschewing of Murthers Felony and Trespasses Dr. Stud. l. 2. c. 46. vide ibid. plura Coke l. 1. f. 177. a. b. Anthony Mildmay brought an action of the case against Roger Standish because the said Robert had said and openly published that certain lands which lawfully appertained to the said Mildmay were lawfully assured for the terme of a thousand years to Ja. Talbot and Olyff his wife and that they of the interest of that term were lawfully possessed and so for slandring his estate and title shewing all in certain and how he was prejudiced by the said speaking brought his Action And Standish in his plea justified the words upon which the Plaintiff demurred and it was adjudged for the Plaintiff although de facto the said Talbot and Olife had a limitation of those lands by the Will of Sir Henry Sharington in writing for a thousand years which was the occasion that the said Standish being a man not learned in the Law affirmed and published the same yet for that he had taken upon him the knowledge of the Law and interposed himself in a matter not concerned him judgment was given against him for Ignorantia juris not excusat If the Clark mistake Debt for a Detinet in a Writ his ignorance of the Law doth not excuse 20 E. 4. 21. But the Civilians have a Rule In paenalibus judiciis aetati imprudentiae succurritur the Law doth help the party according to his age or ignorance in criminal penal causes which accordeth with the grounds of our Law as if an infant of tender years kill a man it shall not be Felony because he had no scretion or understanding and so it is if a man dedi non sanae memoriae kill another it is not homicide because he hath no memory nor understanding and this as Ploydon saith is properly said to be done ex ignorantia where unvoluntary ignorance is adjudged the cause of the act Ployd f. 19. a. Coke l. 6. f. 54. a. A Capias was awarded against a Countesse by the Court of Common Bench that the Sheriff or his Officer by his warrant without any offence may execute it for they ought not to dispute the authority of Court but they ought to execute the Writs to them directed and to it they are sworn and though it was objected that it appeared by the Capias that shee was a Countesse against whom by Law no Capias in such case lyeth ignorantia juris non excusat and principally the Sheriffs and other Ministers of Law and Justice except in some cases as in cases of contempt yet it was resolved that the Sheriff and his Ministers ought not to examine the judiciall act of the Court but they ought to execute the Writ ibidem in the Countesse of Rutlands case so Dyer fo 60. quod vide Ignorantia facti excusat Coke 2. f. 3. b. in Mansers case the ignorance of the deed excuseth as if an illeterate man be bound to seale a deed he is not tyed to doe it if not any be present to read it if required and also to expound it if it be written in Latine c for ignorantia facti non excusat quae est vel lectionis vel linguae the ignorance of the deed excuseth whether it be of reading or of the tongues Doct. and Stud. l. 2. c. 47. If a man buy an horse in open Market of him that hath no property in him not knowing but that he had right he hath good right to the horse and his ignorance shall excuse him but if he had known the seller had no right the buying in open Market had not excused him So if a man retaine another mans servant not knowing that he is retained by him the ignorance excuseth him both from the common Law and the Statute of 31. Ed. 33. and the penalty thereupon to wit paine of imprisonment if any one retaineth one servant without licence or reasonable cause and so hath the
of Magna Charta c. 11. might enter into anothers Woods and cut the Trees for reparations of Castles but by that Statute he did restrain himself so to do Ployd 3. 22. b. vide ibidem plura A Mil-stone that is lifted up to be picked and beaten cannot be distrained for it remaineth parcel of the Mill which is a thing for the Common-weale weale 14 H. 1 25. Things brought into an Inn Faire or Market shall not be distrained 22 E. 4. 49. No more shall Cloath lying in a Taylors Shop or an Horse that is a shooing shall not be distrained for the rent issuing out of the Shop Coke Com. f. 47. a. When a man and a woman are riding on a horse or Axe in a mans hand cutting of wood and the like they are for that time priviledged and cannot be distrained Valuable things shall not be distrained for rent for benefit and maintenance of Trade which by consequence are for the Common-weale and are there by authority of Law as an horse in the Hostrey nor the materials in a Weavers Shop for making of cloath nor sacks of Corn or meal in a Mill nor in a Market nor any thing distrained for damage feasant for it is in custody of the Law and the like So Beasts belonging to a Plow averia carucae shall not be distrained and no man shall be distrained for the Instruments of his Trade or profession as the Axe of a Carpenter or the Books of a Scholar whilest Goods or other Beasts may be distrained ibidem Coke l. 10. f. 139. b. An action of the case was brought against D. and counts that D. was seised of certain lands in Kent by reason of which his ancestors and all the Ter tenants from the time whence c. have made and repaired when it shall be materiall so many perches of the walls of the Sea in K. c. and for default of repairing c. the water entred and over-flowed the lands ef the Plaintiff the Defendant traversed the Prescription and it was found for the Plaintiff and that there was a default in the Wall for not repairing by which the Plaintiff recovered Damage and a Writ awarded to the Sheriff to distrain B. to repair the wall there where it was materiall Note this judgment in an action of the case and the reason is pro bono publico for Salus populi est suprema lex and therefore is that part of the judgment in this action of the case that the Defendant shall be distrained to repair the wall ibidem Publica utilitas privatorum commodis est praeferenda Reg. I. C Publicum bonum privato est praeferendum the publick utility and good is to be pâ—eferred before private gaine and profit and therefore shall be more favourably expounded by the Law then when it is onely for private Coke comm f. 181. b. As the Tenant holdeth of the Lord by fealty and one grain of wheat c. and the Lord purchaseth part the whole shall be extinct because it is entire but if an entire service be pro bono publico as Knights-service Castle-guard Cornage c. for defence of the Realm or to repair a Bridge or a way or to keep a Beacon or to keep the Kings Records or for advancement of Justice and Fence as to aid the Sheriff or to be Constable of England though the Lord purchaseth part the service remaineth and so it is pro opere devotionis pietatis for works of devotion and piety Coke comm f. 149. a. Coke l. f. 63. a. In the Chamberlain of Londons case the Inhabitants of a Village may make Ordinances or by-Lawes for the reparation of a Church or of an high-way or any such thing as is for the publick good generally and in such case the greater part shall bind all without any custome So Corporations cannot make Ordinanccs or constitution or By-lawes without custome or charter unlesse it be for things which concern the publick good as reparations of Churches common-waies or the like So in Corporations such Ordinances or Bylawes are allowed by Law which are made for the due execution of the Lawes and Statutes of this Realm and for the good or due government of the body Corporate And the Ordinance of the Mayor Aldermen and Comminalty of London that all Citizens Free-men and strangers shall not put any broad cloath to sale within the City before it be carried to Blackwell Hall to be viewed and searched so that it may appear to be vendible and that hallage be paid for it to wit 1 d. was good and allowable by Law because it was for the better execution of the Statutes made in that behalf without deceit and also that the assesment of the said peny for hallage was good and reasonable because it was pro bono publico vide ibidem plura Coke comm f. 181 b. If a Charter of Feoffment be made and a Letter of Attorney to four or three joyntly and severally to deliver Seisin two of them cannot make Livery because it is neither by the four or three joyntly nor any of them severally but if the Sheriff upon a Capias directed to him make a Warrant to foure or three joyntly and severally to arrest the Defendants two of them may arrest him because it is for the execution of Justice which is pro bono publico jura publica privato promiscue decidi non debunt and publick Lawes ought not promiscuously to be decided by the private ibidem Coke com f. 165. a. If a Castle that is used for the necessary defence of the Realm descend to two ot more Coparceners this Castle might be divided by Chambers and Rooms as other houses be but yet that it is pro bono publico defensione regni for the publick good and defence of the Realm it shall not be divided for the right of the Sword as Britton saith which suffereth not division that the force of the Realm do not fail so much but Castles of habitation for private use and that are not for the necessary defence of the Realm ought to be parted between Coparceners as other houses ib. And for the same reason a woman shal not be endowed of a Castle that is maintained for the necessary defence of the Realm because it ought not to be divided and the publick shall be preferred before the private but of a Castle that is for private use and habitation she shall be endowed Co. com f 31 b. vide ibidem plura So a protection cum clausula volumus is of two sorts the one concerneth services of War as a Kings Souldier c. the other wisdome and counsell as the Kings Ambassador and Messenger pro negotiis regni both these being for the publick good of the Realm private mens actions and suits must be suspended for a convenient time for the publick is to be put before the private but the cause of granting the protection must be expressed in the protection to the end
that it may appear to the Court that it is granted pro negotiis regni pro bono publico for the common profit of the Realm and as Britton saith for our service as to be in our force and defence of us and our people Coke comm f. 130. And it is a rule in the Civill Law which for the reasonableness of it all Nations follow Eorum qui in potestate paiâ—â—s â—unt sine voluntate ejus matrimonia jure non contrahu â—ur sed contracta non solvuntur They who under the power of their Father cannot lawfully contract Matrimony without their will and consent but being contracted are not to be dissolved Contemplatio enim utilitatis publitae privatorum commodis pâ—aefertur For the consideration of the publick good is to be preferred before private profit Fulâ— Pand. f. 28. Finis legis pax est Ployd f. 388. The Justice said that peace and concord were the end of all Lawes and for peace the Law was made And Dyer said that for peace Christ descended from Heaven on Earth and the Divine Lawes of the old and new Testament were given for peace Bacon H. 7. f. 233. And Bacon saith When Christ came into the world peace was sung and when he went â—ut of the world peace was bequeathed And Weston cited S. Aug. Concordia stat augetur respublica discordia ruil diminuitur By concord the Common weale standeth and flourisheth and by discord it is diminished runneth to ruine And Cataline said that the Charriot wherein Peace was carried was unanimity the Rector of the Charriot Love the Horses which drew it Concord and Utility and her company and consorts were Justice and Truth and Diligence and her incidents were the attainment and advancement of all Arts and Sciences and therefore peace which bringeth so many commodities ought to be preserved above all other things And Dyer said that it was one of the Atticles to which the King is sworn at his Coronation to his subjects to do that he preserve the peace for nothing of greater benefit he cannot grant to them And therefore those Lawes which bring the more peace are the more to be esteemed as the Law is touching fines which bringeth to the Possessors of Inheritances security and maketh the certainty and therefore Carus said they were the more worthy because certainty engendereth repose and incertainty contention and to avoid incertainty in Inheritances Fines were devised by the Founders of our Lawes at the beginning of Law for no point of our Law is of greater antiquity and for it Glanvill was cited by Cataline who lived in the time of Richard the first that Contingit aliquando loquelas motas in Curia domini regis per amicabiâ—em compositionem finalem concordiam te minari sed ex licentia regis vel ejus justiciariorum It happened sometimes that Libells and Suites moved in the Court of the Lord the King were ended by a loving composition and finall concord but by the licence of the King or of his Justices And Bracton therefore is it called a finall concord because finis finem litibus imponit because a fine putteth an end to all Suits vide ibidem plura And for the same reason are Recoveries advanced by the Law above all other assurances even fines themselves and as Bacon are the greatest security Purchasers have for their monies for a fine will bar the Heir entail but not the Remainder but a common Recovery barreth as well Estates taile as also all Reversions and Remainders expectant an dependant except in the Kings case where the Remainder or Reversion is in the King and then by the Statute of 34 H. 8. it barreth neither the Estate tail nor the Remainder saving where the King is the Giver of the Estate tail and leaveth the Reversion to himself Bac. Vses f. 52. 53. and Dr. Student l. 1. c. 26. And therfore by the Statute of 23 Eliz. c. 4. It s provided that for the avoiding the danger of assurances and for the advancement of common recoveries that every common recovery shall not be avoided for any want of form in words and not in matter of substance So the common Law is the preserver of peace and abhorreth all force as a capitall enemy to it and therefore is more severe against those which commit any force and subjecteth their bodies to imprisonment whereas at the common Law upon a recognizance or judgement for debts and damages a common person onely shall have execution of his Goods and Chattells and of the Corne or other present profit groweth upon the Land but it is a rule at the common Law that in all Actions Quare vi armis a Capias lyeth and where a Capias lyeth in Processe there after Judgement a Capias ad satisfaciendum lyeth which is the highest execution by which he shall loose his liberty untill he hath made satisfaction to the party and fine to the King and the King shall have a Capias pâ—o fine Coke l. 3. f. 12. a. in Herberts case vide ibidem plura And therefore all actions upon the case for corporall injuries as forcible Entries Assaults and Batteries which tend to the breach of the peace may not onely be pursued by action but Enditement and are more severely and largely taken and punished by the common Law As if foure men enter into Land and one of them entreth by force this is force in them all and may be impleaded by action or impeached by enditement 2. E. 3. 12. Communis error facit jus a common error maketh right Dr. Stud. c 26 f. 46. The Law so favoureth the publick quiet that it will permit a common error to passe for right and therefore though it be objected that common recoveries were fâ—rst had upon feyned and unlawfull ground and against the good order of conscience neverthelesse for as much as they have been used a long time so as they have been taken of diverse men that have been right well learned in manner as for Law that the buyers partly are excused so that they be not bound to restitution and therefore Ployd in Manxells case f. 2. whâ—ther a common recovery barreth an estate taile is not to be disputed because a great part of the inheritance of the Realme depend upon it So an acquittance made by a Mayor in his own name where the Towne is incorporate by the name of a Mayor Sheriff and Burgesses shall be allowed for good if there be an hundred precedents and more of like acquittances that is for common quietnesse and accordingly the Civilian Bodin saith l. 2. de repub Diuturnitas temporis efficere potest ut quod pernitioso more exemplo inveteravit potentius ipsa lege dominetur the long continuance of time may effect that what by pernitious example Custome hath grown old may rule more powerfully then the Law it selfe and therefore as learned Patricius saith Concedendum est aliquid consuetudini
quae quidem diaturnitate temporis efficit L. 1 de repub f. 2. ut nonnulla toleranda esse videantur que contra jus boni aequi esse videantur we are to yeild something to custome which certainly by long continuance of time doth effect that some things may seem to be tolerated which seem to be against the rule of right and equity so Moses tolerated and suffered the Jewes libello repudii by a bill of refusall to forsake their wives though the indissoluble bond of matrimony was ordained of God and this dispensation as our Saviour saith was permitted for the hardnesse of their hearts because their hearts through inveterate custome were hardned against that divine ordinance Consuetudo more utentiam approbata vim legis obtinet Bract. l. 3. c. 1. Coke l. 4. f. 21. Consuetudo est altera lex a custome approved by the manner of the users obtaineth the force of a Law and is another Law Arist 1. R. for those things are done by custome as the Phylosopher saith which therefore we doe because we have often done them and when a reasonable act once done was found to be beneficiall and agreeable to the people then did they use and practise it often and so by the reiteration and multiplication of the same became a custome and so being without interruption time out of mind practised for the quiet by the approbation of the people obtained the vigor of a law for as Bo. princep legum Sod de repub l. 1. c. 1. pulus morum magister the Prince is the master founder of laws ordinances and the people of manners and customes Just l. 1. tit 2. which accordeth with the description of Justian quod quisque populus sibi jus constituit id ipsius proprium civitatis est what every people ordaine to be a Law to themselves that is a proper and municipall Law of the City Cicer. in La. Maxima est vis consuetudinis saith the eminent Legist of Rome the force of custome is very great in so much that as by the Law of nature consuetudo est altera natura so by the Law of Nations consuetudo est altera lex for as Coke l. 5. Epist ad lectorem of his own knowledge professeth that at this time all Kingdomes and common Wealths are governed by Laws and that every Nation hath his peculiar and approved Customes which are the most usuall binding and firmest Lawes so as it is said per varios casus artem experientia fecit it may be said per varios usus legem experientia fecit Co. com f. 97. b. There are particular Customes and generall Customes particular Customes are such as are used in some certain County City Towne or Lord-ship and generall Customes are such as are used throughout all England which are the common Law of England In his preface for as Davis the common Law of England is nothing but the common Custome of the Realme and Coke the common Law is nothing else but a common opinion generally received and Finch the common Law is a Law used by prescription throughout the Realme of England Finch Nomot f. 75. Ployd f. 95. a. The common Law is nothing else but common use and the mirror of Justice c. 1. l. 9 The Law is ancient uses warranted by Scriptures and is called the common Law Dav. pref because given to all in generall and to conclude this point with this definition which seemeth to me to include all Custome is a reasonable act iterated multiplied and continued by the people L. 1. R. c. 3. de temps dont memoire ne court time out of minde Aristotle saith injustum est apud omnes praeter consuetudines patrias quicquam agere all Nations hold it unjust to doe any thing against the Customes of the Country which is a principle in our Law that Custome is another Law Ennig Frag. and that we may say with the ancient Roman Poet as he sung of the Romans Moribus antiquis stat resque Britanna virisque The state of England standeth on the ancient Law And though it be jus non scriptum and onely written in the memory of man yet as Sir John Davis it doth far excell our written Lawes namely our Statutes or Acts of Parliament which is manifest in this that when our Parliament have altered In his preface and changed any fundamentall point of the common Law those alterations have been found to be so inconvenient for the Common-Wealth as that the common Law hath been in effect restored againe in some points by other Acts of Parliament in succeeding ages as it is a fundamentall principle of the common Law Quod haereditarium jus omne per feodum simplex transit that all estates of inheritance are fee-simple which the Statute of 13. Ed. 1. de donis conditionalibus intended to limit and to give every man power to create a new estate in taile and establish a perpetuity of his Lands so as the same should not be aliened or letten but during the life of tenant in taile whereupon these inconveniences ensued purchases defeated leases evicted and other estates and grants made upon good consideration avoided creditors defrauded of their just debts and offendors enboldened to commit capitall offences c. who therefore were first barred by common recoveries and then docked by fines 15. E. 3. 14. by Herb. Coke l. 4. Ep. ad lectorem So the Statute of non-claime of 34. E. 3. is against a main point of the common Law whereby ensued the universall trouble of the Kings Subjects and therefore was it altered by the Statute of H. 7. c. 24. Coke ibidem 32. So by the grounds of the Law Lands were not devisable before the Statute of 32 34. H. 8. concerning which dayly experience teacheth us that many subtile and intricate questions arise concerning the construction of Wils to the ruine of many and hindrance of multitudes Coke ibi And it is a politick axiom that the alteration of any fundamentall point of the common Law which is ratified by use and experience is most dangerous and therefore we ought to vote and resolve with all the Earles and Barons in Parliament holden in the twentieth yeare of H. 3. against the Bishops who would have introduced the civil Law Nolumus leges Angliae mutare we will not change the Lawes of England To which purpose I add the asseveration of Cicero ante nostram memoriam terterum morem Frey Cil. de repub ac majorum instituta retinebant excellentes viri before our memory excellent men did retaine the custome of the ancient and the institutes of their elders Optimus legum interpres Consuetudo Co. l. 2. f. 81. a. The best expounder of the Law is custome If land holden by grand Serjanty be aliened without licence it is forfeited by the Common Law because the service of the body cannot be transferred to another 14 E. 3.
lands of the Grantor H. 13 E. 4. f. 6. So if the Title appeareth to the King upon Plea of other parties the Court of Office shall adjudge it for the King though he be not party to the Issue Ployd f. 243. b. vide ibidem plura And as the Common Law cannot bind the King no more can private Customes and therefore the custome of that if one pawn Goods that he that hath the pawn shall hold them whose soever they be untill the mony for which they were pawned be paid unto him shall not bind the King where his goods were pawned by a stranger So sale of goods made by a stranger â—n Market-overt shall not alter the property nor bind him M. 3. H. 6. 28. And if a man have wrack of the Sea if the Goods of the King be wracked he shall gain no property by it against the King And so it is of Prescription to have goods waved or estrayed M. 35 H. 6. 27. Ployd ibidem vide plura Nullum tempus occurrit regi Ployd f. 243. No Prescription of time runs against the King As if right of entry descend to the King and the Disseisor dieth seised it shall not take away the entry of the King M. 35. H. 6. 27. So if a Villain alien his land the Lord may enter when he pleaseth Coke com f. 41. b. If Tenant for life or Tenant in Dower grant over his or her estate and the Grantee dieth there shall be an Occupant but against the King there shall be no Occupant because nullum tempus occurrit regi Coke l. 6 f. 29. b. At the Common Law if any one had usurped upon the King and his Presentee had been admitted instituted and inducted for without Induction the Church is not full against the King yet the King may have a Quare Impedit and by it he shall remove the Incumbent for no act of the Bishop or any other can bar the King of his right nullum tempus c. vide ibidem plura Ployd 243. a. Coke l. 7. f. 28. If Title to present by Lapse be devolved to the Queen and the Patron presenteth a Clark who is admitted instituted and inducted and dieth the King hath lost his Title to present by Lapse for the King had but unam unicam presentationem hac vice which cannot be extended to the second avoidance and the statute de prerogativa regis quod nullum tempus occurrie regi is to be understood when the King hath a certain permanent interest and not when he hath an interest specially limited vide ibidem plura in Baskerviles case All which proceed from the Prerogative the Common Law giveth the Prince which is so large Nom. f. 85. Davis in his Preface as Sir Henry Finch saith that you shall find that to be Law almost in every case of the King that is Law in no case of the Subject And therefore Sir John Davis confidently averreth that the Common Law doth excell all other Lawes in upholding a free Monarchy which is the most excellent form of Government exalting the Prerogative Royall and being tender and watchfull to preserve it And yet maintaining all the ingenuous libertie of the Subject Davis ibidem But though the Common Law allow so many Prerogatives to the King yet shall he not hurt others by them As if a Bridge be repairable by the Subject and is in decay the pardon of the King shall not excuse him who ought to do it because others to wit the Subjects of the Realm have an interest in it So if one have Jewels in pawn for ten pounds and he that putteth them to pawn is attainted the King shall not have the Jewels unless he pay ten pounds for his Prerogative will not prejudice another Ployd f. 487. a. b. So the Earle of Kent had the return of certain Cattell in Replevin in 13 R. 2. and the Proprietor of the Cattell was attainted There it is holden that the Earle of Kent shall retaine the Cattell against the King untill he is satisfied for the thing and the Prerogative of the King will not discharge them of the return because the Prerogative will not give prejudice to another vide ibidem plura in Nichols case Rex est caput salus reipublicae a capite bona valetudo transit in omnes Coke l. 4. f. 124. b. The King is the head and safety of the Common-weale and as from the head health is conveyed to the body so from the King safety is conveyed to the Common-weale which is the body of the Kingdome for from him Justice is distilled to all by which all men are preserved in peace and safety as Ployd f. 242. b. All justice tranquility and repose is derived from him as the Fountain of it and therefore by Bracton he is called Author juris L. 3. c. 9. the Author of right by whom right is separated from injury equity from iniquity that all subject to him may live honestly that not one should hurt another and that to every one what is his be by a right contribution restored And by Homer 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Gods Schollars and by a more divine Poet Gods themselves especially because they sit on Gods own Seat when they minister justice to the people Dixi quod dii estis and that the Rules of Justice be their principall Lesson Which like the Sun in the Firmament to which Justice is rightly resembled he is to communicate to all the Creatures of his Common-weale And as the King is the Sun and Fountain of Justice so are the Judges and Professors of the Law but Conduit Pipes to convey the streames of his Justice throughout all the Kingdome L. 4 Ep ad l. A. Chron. 19.6 7. Whereupon Sir Edward Coke hath this observation from the divine Text videte Judices Take heed you Judges what yee do for yee judge not for man but for the Lord who is with you in the Judgment wherefore let the fear of the Lord be upon you take heed and do it for there is no iniquity with the Lord our God nor respect of persons nor taking gifts And so saith he must every Judge be just without respect to give every man his own Protectio trahit subjectionem subjectio protectionem Coke l. 7. f. 5. Calv. case Protection draweth subjection and subjection protection Legiance is the mutuall Bond and Obligation between the King and his Subjects whereby Subjects are called his leige Subjects because they are bound to obey and serve him and he is called their leige Lord because he shall maintain and defend them And as there ought to be a mutuall connexion of dominion and fidelity between the Lord and Tenant ita quod quantum debet domino ex homagio tantum illi debet dominus ex dominio as Glanvil saith so that how much the Tenant oweth the Lord by homage and service so much doth the Lord owe the Tenant by his power and
protection for the Law saith he is to defend his Tenant so is there an higher and greater connexion between the Soveraign and the Subject for the Subject oweth to the King his true and faithfull obedience and the Soveraign is to protect and govern his Subjects For as Fortescue Rex ad tutelam legis corporum bonorum erectus est Del. l. A. C 13. the King is raised to defend the Lawes the Bodies and Goods of his Subjects and frustra feruntur leges nisi obedientibus in vain were it to prescribe Lawes to any but to such as are obedient Coke ibidem f. 7. And as Coke l. 11. f. 100. obedientia est legis essentia obedience is the essence of the Law and therefore ought all Citizens and Burgesses to give obedience and reverence to the chief Magistrates in their Cities and Burghes because they derive their authority from the King whom by leigiance we are bound to obey Iudex bonus nihil ex arbitrio suo faciat nec proposito domesticae voluntatiis sed juxta leges jura pronunciet A good Judge may do nothing of his own phantacy nor according to the power of his own domestical wil and affection but is to pronounce sentence according to the Lawes and right Co. l. 7. f. 27. Calv. case For Judges have not power to Judge according that which they think to be fit but that which out of the Lawes they know to be right and consonant to the Lawes for Judex est lex loquens a Judge ought to be a speaking Law f. 4. and as Coke saith l. 4. f. 33. b. Judicandum est legibus non exemplis we ought to Judge by Lawes and not by examples and therefore by Glanvill is a Judge called Justitia in abstracto because he should be as it were Justice it selfe to put him in minde of their duty and office and now in the legall Latine are the Judges called Judiciarij in Concreto and not Judices because they should be just Coke com f. 71. b. Judicis est judicare secundum allegata probatâ— A Judge ought to Judge according to what is alledged and proved Dyer f. 12. P. 50. As in a Formedon if the Demandant count of a Feoffment in fee and not in tail if the tenant demur upon it cleerly the Court cannot maintaine the Declaration to be good because the Judge is to Judge according to what is alledged and approved Ployd f. 83. b. The Judges have a private knowledge and a judiciall knowledge and Judges cannot judge of their private knowledge but may use their discretion as appeareth in 7. H. 4. f. 31. Where the Ring demanded of Justice Gascoine this question that if he did see one kill I. S. and another that was guilty was endited for it before him and found guilty of the same death what then would he doe in this case who answered that he ought to respit judgment before him because he knew the contrary and to make relation thereof to the King to shew him grace and mercy and the King was well pleased that the Law was such and further added that he could not acquit him and give judgement of his own private knowledge for as the Civilians Judex non debet exequi sententiam nisi de veritate constat a Judge ought not to execute judgement unlesse it appeare before him to be true but where we have judiciall knowledge there we may and ought to judge according to it as if one be arraigned upon an enditement for any offence which is pardoned by Parliament there we ought not to proceed in it nor give judgement if he be found guilty because it appeareth to us by judiciall Science that we ought not to arraigne him for the Judges ought to take cognizance of the Statutes which shall appeare to them judicialiter although they be not pleaded Ibidem Officia magistratus non debent esse vaenalia Coke com f. 234. a. Offices of magistracy and judicature ought not to be sold and therefore by the Statute of 12. R. 2. c. 21. It is provided that no Officer or Minister of the King shall be ordained or made for any guift favor brocage or affection nor that any which pursueth by him or any other privately or openly to be in any manner of office shall be put into the same office or in any other but that all such Officers shall be made of the best and most lawfull men and sufficient a Law worthy to be written in Letters of Gold saith Sir Edward Co. but more worthy to be put in execution for certainely Justice shall never be duly administred but when the Officers and Ministers of justice be of such quality and come to their places in such manner as by this Law is required Mich. 13. Jacobi Sir Robert Vernon coferor of the Kings house who had a great pension out of the Kings revenew for monies did bargaine and sell the same to Sir Aug and agreed to surrender the said Office to the King to the intent that a grant might be made to the said Aug. and thereupon the said office by the Kings appointment was admitted and sworne Coferer and it was resolved by Sir Thomas Edgerton Lord Chancelor the cheife Justice and others to whom the King referred the same by the Statute of 5. E. 6. c. 16. whereby it is provided that if any officers touching the Administration of Iustice or Clerkeship in any Court of Record or concerning the Kings Treasure Revenue Custome Alnage Auditorship Kings Surveyor or keeping of any of his Majesties Castles Forts c. shall bargaine or sell any of the said Offices or any deputation of the same or take any mony or profit or any promise covenant bond or assurance shall not onely forfeit his estate but also every person so buying giving or assuring be adjudged a disabled person to have or to hold the same Office or Offices deputation c. and that all such bargaines sales promises covenants and assurances as be before specified shall be void except as in the said act is excepted quod vide and that A. was disabled to have or to take the said office and that no non obstante could dispense with this Act to enable the said A. for the reason before mentioned and hereupon the said Sir A. was removed and Sir Marmeduke Darnell sworne by the Kings appointment in his place and note that all promises bonds and assurances as well on the part of the Bargainor as the Bargainee are void by the said Act Ibidem And so by the Statute of 13. Eliz. all presentations admissions and inductions upon any guift of the person presented or any guift or consideration without the consent or motion of the party shall be void whereas before they were void onely by deprivation and the said Statute doth not onely extend to benefices with cure but to dignities prebendes and all ecclesiasticall livings Securius expediantur negotia commissia pluribus Co. l. 11. f. 4. a.
7. Quicquid non excutitur justitia non putatur Reg. I.C. Coke l. 6. f. 52. a. Quicunque aliquid statueret parte inaudita altera aequum licet statuerit haud aequum fecerit whatsoever is not discussed and tried is not to be reputed Justice and if any one shall decree any thing one of the parties being not heard though he doth decree that is right yet hath he not done that is just and equall in Bosewels case where it was resolved that no Incumbent shall be removed by a Quare Impedit or an Assise of Darrein presentment purchased within the six moneths unlesse the Incumbent be named in the Writ although the Incumbent be in a defeasible Title for then he shall be removed and adjudged not being heard Quicunque aliquid c. So Coke l. 11. f. 99. a. in James Baggs case though the Mayor and Counsel-chamber of Plymmouth have lawfull authority either by their Charter or Prescriprion to remove any one from his freedome and that they have just cause to remove him yet if it appear by the return that they have proceeded against him without hearing him to answer to what is objected or that he was not reasonably warned such a removement is void and shall not bind the party In ancient times where any were found guilty by the good people by Inquest for any mortall Offence the King gave order to execute them without any answer Mirror of Justice which custome may seem to be derived from the Dictators power among the Romans who had authority to cast any into prison and to punish him with death indicta causa And which also was a custome among the Gauls De Laud. l. Aug. 4. 82. whom now we call French which as Fortescue saith in his time remained among them to wit That the King usually calling his Nobles into his Counsel-chamber without any form of judgment were adjudged criminous by the Conscience of the Prince and thereupon were they presently by the Marshals servants put into Sacks and in the night by them precipitated into deep rivers and so drowned And which custome also was used in Almaine But King Alfred in compassion of the frailty of man who cannot keep himself from sinning without the assistance of the grace of God abrogated that custome and decreed that no Appelle or Inditee should be condemned or executed without answer Mirror of Justice l. 2 f. 3. which still continueth and therefore saith Coke l. 2. Epist ad lectorem are our Lawes commended above other which punisheth not the greatest Offenders though it be for Treason but by just and equall proceedings in Law according to the ancient Lawes of England declared by the generall Charter Nulli vendemus nulli negabimus justitiam rectum And therefore saith Fortescue De Laud. l. A. f. 122. It is part of the charge of the Judges Oath not for any command of the Prince either by Letters or by word of mouth to deviate from Justice or to deny right to any but to minister justice and right indifferently to all as well enemies as friends and accordingly saith he Queen Elizabeths charge to the Justices was That for no commandment of hers common right should be disturbed or delayed Whereas in other Countries the Judges had rather misconster the Law and do injustice then to displease the Kings humour according to the old Sarchasme Ad libitum regis sonuit sententia legis For which unlawfull and wilfull perversness some of our later Kings have been blamed and for which as Frossard saith l. 2. c. 3. Edward the second was condemned quod in audita causa aliquos proceres de medio tollebat that he did punish with death some of his Nobles without hearing their case neither was the stupendious proceeding of Henry the eigth against his new created darling the Lord Cromwell commendable Hen 8. f. 71 or allowable though acted by Parliament who being accused of high Treason and Heresie as Godwin saith inauditus damnatur is condemned without hearing his answer Neither is David's unjust judgment in condemning Mephibosheth being absent 2 Kings 16. and unheard upon the false accusation of Siba approved for whosoever shall decree any thing the other being not heard though the decree be right yet it is not just and equall Quicunque jussu judicis aliquid fecerit non videtur dolo malo fecisse quia parere necesse est Coke l. 10. f. 70. b. He that doth any thing by commandment of the judge seemeth not to have done any thing with a fraudulent intent because he needs must obey And therefore the Officers and Ministers of a Court are not to be punished for executing the precept and warrant of the Court whereas if they had refused to do it the Court would have punished them for their disobedience As in 16 E 3. 70. it is taken for a Maxime that the thing which the Officer doth by Precept or warrant of the Court cannot be said to be against the peace Dr. Stud. f. 150. The Officers of the King are bound to execute the Writs of the King at their perill But this diversity is to be taken that when a Court hath jurisdiction of a Cause and proceedeth erroniously there the party who sueth or the Officers and Ministers of the Court that execute the precept and proces of the Court are not liable to an action but when the Court hath no jurisdiction of the Cause and all the proceeding is coram non Judice actions do lye against them without any regard to the precept or proces for when he hath no jurisdiction he is no judge and it is not of necessito obey him who is no judge no more then a meer stranger for it is a rule Extra terratorium jus dicente non paretur impune He that obeyeth in prescribing Lawes beyond his jurisdiction shall not go without punishment Co. ibid. f. 57. A B. And therefore 22 E. 4.33 Pigot said that if the Court hath not power and authority their proceeding is coram non Judice As if the Court of the Common Bench hold plea in an appeal of death robbery c. and the Defendant is attaint it is coram non Judice but if the same Court in an a plea of debt award a Capias against a Duke c. which by the Law lyeth not against him and it appeareth in the Writ it self yet if the Sheriff arrest him by force of that Capias because the Court hath jurisdiction of the Cause the Sheriff is excused though the writ is against the Law And so if a Capias commeth unto him without an Originall and he serveth it it is excusable in false imprisonment Dyer f 60. pl. 26. So if a Iustice of Peace make a Warrant to arrest one for felony which is not indicted though the Iustice of Peace erre in the Warrant of it yet he that maketh the Arrest by force of that Warrant shall not be punished by a Writ
Common Law of England every navigable River so high as the Sea floweth and refloweth in it is flumen regale and the Piscary of it is also royall Piscary and belongeth to the King as his Prerogative but in any other river not navigable In the Piscary of such River the Ter-tenants of either side of the water have an interest of common right and the reason why the King hath interest in such navigable Rivers so high as the Sea floweth and refloweth in it is because such River participateth of the nature of the Sea and is said to be a brach of the Sea so far as it floweth or refloweth 12 Ass pl. 93. And though the King permitteth his people for their ease and Commodities to have common passage yet he hath the sole interest in the soil of such Rivers as also in the Piscary although the profit of it is not commonly taken by the King and appropriated by the King unless it be of extraordinary and certain annuall value So the King granted to Strangewaies totam illam liberam piscarim all that free Priscary called the Fleet in Abboesbury which is a bay and creek of the Sea And though the Abbot had the Piscary before the dissolution it is to be understood that the Abbot at the beginning had it by grant of the King it being a severall piscary upon the brach of the Seas and therefore by consequent royall piscary vide Ployd 315. b. And therefore in the case of the royall piscary of Bann Davis 57. It was resolved that the River of Bann so far as the Sea did flow and reflow in it is a royall River and the fishing of Salmon there a royall piscary which belongeth to the King as a severall piscary and not to those which have the soile ex utraque parte aquae on either side of the water vide ibidem plura Tributum est victoriae praemium Cicero in vere poenabelli Tribute is the reward of victory and penalty of Warr. A Conqueror may command tribute and all that comes in under the Conqueror by the Law of Nations and therefore the Roman Generall said unto the French men Tac. l. 4. histro Deut. 20.11 jure victoriae tributum vobis addidimus by the right of victory we have imposed tribute upon you and tribute for the same reason is due by the Law of God which cleerly appeareth by the answere of our Saviour to the Iewes who because they would have Christ to have challenged their earthly Kingdome by that meanes to draw him into hatred with Caesar demanded of him whether it were lawfull to give tribute to Caesar but he that allwayes professed that his Kingdome was not of this World Matt. 22. gave them a bone to gnaw saying give unto Caesar all the things which are Caesars and to God the things that are Gods for indeed tribute are allowed by the Law of God So William the Conqueror after his universall conquest was the first that commanded and imposed tribute in England and not unjustly which as yet is continued as a remembrance of a conquest yet doe the English seeme rather to offer a tribute to their Monarch then the Monarch to command it for the courtesy of England is great and the clemency of their Princes greater and as Fulbeck protesteth sithence the conquest of England tribute and subsidy have been as justly by the Law of God and the Law of Nations paid England as in Jury Fulb. Pand. c. 10. f. 99. In republica maxime conservanda sunt jura belli Coke com f. 10. b. In a Common-wealth the Laws of Warr are principally to be preserved for to invert the position of Justinian and yet to retain the sense imperatoriam Majestatem non solum legibus oportet esse armatam Just Institutes sed etiam armis decoratam ut utrumque tempus bollorum pacis recte possit gubernari the imperiall Majestie ought not only to be armed with Laws but also adorned with armes that the time of War and peace may be rightly governed for experience the mistresse of all Arts and Sciences teacheth us that there is nothing more necessary for the observation of peace and Administration of Justice then the conservation of the Lawes of armes and that in consideration of the ambition of the world and factions of people it is impossible for any Realme to continue in peace and tranquility where the protection of the Sword is not eminent and iminent and therefore Cicero summus illo administrandae reipub Magister Buchan de Cicerone propoundeth the cheifest Master of the administration of a common wealth propoundeth this sentence to be practised as a State Aphorisme Ideo suscipienda sunt bella ut in pace sine injuria vivamus therefore are Wars to be undertaken that we may live in peace without injury Tullys Offi. for without the assistance of the Militia and Sword a State cannot be constantly cleered and freed from publick or private injuries and it was Catos sage advice by which the continuall rebellions of the Spaniard might surely be suppressed id uno modo caveri potest si effectum erit ne possint rebellare that by one onely meanes may be prevented if such course be taken that they cannot rebell and the very like course did Lentulus prescribe against the Perfidious Carthaginians quoniam illoram Persidiam non possumus tollere ideo debilitemus potentiam because we cannot eradicate their persidiousnesse therefore let us debilitate their power both which by continuance and force of armes was effected Mavult princeps domesticos milites quam stipendiarios bellicis apponere casibus Coke com f. 69. a. A Prince will rather imploy Domestick and Native Souldiers then Stipendiaries and Forreners It was the wisdome of the antient Kings of England to be served in the Wars by their own Subjects and therefore did give Lands to their Subjects to hold of them by Knights services that when the King did make a royall voyage to Scotland Wales c. according to their severall tenures they ought to be with the King for a certaine time limited conveniently arrayed for the War and though they onely who held immediately of the King were to doe this service yet every man by his tenure is bound to defend his Lord and he and his Lord the King to which the military rule of Galba is consonant optimum est militem deligere non autem emere it is the best course to choose a Souldier but not to buy him and then are Princes said to choose their Souldiers when they conscribe their own Subjects and to buy them when they purchase strangers with their pay And as another satius est erudire suos quam conducere alienos it is better to instruct your own people in armes then to procure expert strangers for which Machavell that subtil Secretary of State extolleth the King of England that when he invaded France for many years agoe would not accept any
when we apprehend the reason of the Law that is when we bring the reason of the Law to our own reason that we may perfectly understand in as our own ibidem and therefore we use to say in argument that reason will that such a thing be done or that reason will not that such a thing be done Noy max. f. 1. for as Ployd f 34. our Law hath reasonable constructions in all things As if I be bound to perform the Covenants in such an Indenture it shall be intended all the Covenants or that my Feoffees shall make an Estate it shall be intended all my Feoffees Lex est summa ratio Coke com 97. b. the Law is the chiefest reason that is an artificiall and legall reason warranted by authority in Law ibid. 62. a. and therefore Littleton saith Semper quaere de dubiis quia per rationes pervenitur ad legitimam rationem Alwaies enquire of doubts for by reason you shall come to a lawfull reason for reason is radius divini luminis and by the reasoning and debating of grave learned men the darkness of ignorance is expelled and by the light of legall reason the right is discerned and thereupon judgment given according to Law which is the perfection of reason Coke com f. 232. b. Nay the Common Law it self is nothing but reason which is to be understood of an artificiall perfection of reason gotten by long study observation and experience and not of every mans naturall reasons for Nemo nascitur artifex No man is born an Artist This legall reason is summa ratio And therefore if all the reason that is dispersed into so many severall heads were united into one yet could he not make such a Law as the Law of England is because by many successions of ages it hath been fined and refined by an infinite number of grave and learned men and by long experince grown to such a perfection as the old rule may be verified Neminen oportet esse sapientiorem legibus No man ought out of his own private person to be wiser then the Law which is the perfection of reason Co. com f. 97. b. And though the Jurisdiction of the Court of Parliament is so transcendent that it maketh enlargeth diminisheth repealeth and reviveth Lawes Statutes Acts and Ordinances concerning matters Ecclesiasticall Capitall Criminall Common Civill Martiall Maritine and the rest Coke comm f. 110. a. yet cannot a Parliament confirm any thing which is against Law and reason And therefore if a Town hath customes which are against Law and reason and their customes be confirmed by Parliament Danby chief Justice in such case saith M 5. E. 4. f. 40. 41. That such confirmation shall not extend to such customes For a thing used meerly against Law and reason is not custome notwithstanding the usage as the Law saith and therefore the Act of Parliament which confirmeth their customes is referred to that which is not for they are not customs and therefore shall be void Ployd f. 399. b. vide ibidem plura Quod est contra rationem est illicium Coke com f. 97. b. what is contrary to reason is unlawfull And therefore Tenant in Franck-marriage shall do fealty to the Lord before the 4th degree passed for it should be inconvenient and against reason that a man shall be Tenant of an an Estate of an Inheritance to another and yet the Lord shall receive no manner of service of him and therefore he shall do fealty for all service ibid. And all positive Lawes which are contrary to the Lawes of nature and the Law of reason lose their force and are no Lawes at all Such was that of the Aegyptians to turn weomen to Merchandizes and Common-wealth affaires and to keep men within doors And such was the Law of the Thracians who accounted stealing very commendable and idleness an honest thing Finch Nom. l. 75. Quod est inconveniens contra rationem non est permissum in lege Whatsoever is convenient and contrary to reason is not permitted in the Law Coke com 178. a. If a man be seised of lands in Fee-simple and hath issue two daughters and the eldest is married and the Father giveth parcell of the lands to the Baron with his Daughter in Franck-marriage and dieth seised of the remnant which are of the greater value by the year then those lands given in Frank-marriage In this case the Baron and the Feme shall have nothing for their pur-party of the said remnant unless they will put their lands given in Frank-marriage in hotch pot with their remnant of the land with the Sister And if they will not do so then the younger may hold and occupy the same remainder and take to her the profits only for if the other partner should have nothing of it is given in Frank marriage of this a thing would ensue an inconvenience and a thing against reason which the Law will not suffer and therefore if the Baron and Feme will not put their lands in Frank-marriage in hotch pot they shall have nothing of the remnant because it shall be intended by the Law that she is sufficiently advanced to which advancement she agreeth holdeth her self content Littleton ibidem Mutata legis ratione mutatar lex Coke l. 7. f. 7. The reason of the Law being changed the Law it self is changed As though by the Common Law a man cannot distrain for rent or service in the night 12 E. 3.17.11 H. 7.5 accord yet for damage-feasant a man may distrain in the night for the necessity of the case for otherwise peradventure he shall not distrain at all for before the day they may be taken or strayed out of the ground 10 E. 3. f 37. In the Statute of Winchester it is provided that in Cities or great Villages which are inclosed the gates ought to be shut from the setting of the Sun to the Sun rising and since that Statute if in such Village or City inclosed any murther or manslaughter be done in the day or in the night and the Offender escape such City or Village shall be amerced which Act changed the reason of the Law for at the common Law if a man was slain in the night and the Offender escape there it was not any default in the City and Village but now if they do not guard their Gates strongly according to the Statute by which the Offendor escapeth then it is a default and negligence in them 3 E. 3. tit Coronae 290. So if divers commit a robbery by the Statute of 13 E. 3. those of the hundred ought to apprehend all the Felons and though they apprehend any of them that is not sufficient to excuse them for the words of the Act are that they shall answer for the bodies of the Offenders but now by the Statute of 27 Eliz. c. 13. it is provided that none shall have an action upon the said statute if not that the party robbed so soon as he can
corrodit vistera textus a viperous exposition which should tear the bowels of the Text ibidem Coke l. 8. f. 1. 7. a. b. The better Expositors of all Letters Patents and Acts of Parliaments are the Letters Patents and Acts of Parliament themselves by construction and conference of all the parts of them together for optima Statuti interpretatrix est omnibus particulis ejusdem inspectis ipsum Statutum Injustum est nisi tota lege inspecta una aliqua particula proposita judicare vel respondere The best expounder of a statute is the statute it self all the parts of the same being looked into and it is an unjust thing One particular being propounded to judge and answer unless the whole Law be looked into ibidem in Dr. Bonhams case Coke l. 10. f. 24. b The better exposition of the Charter of the King is upon consideration of all the Charter to expound the Charter by the Charter it self and the Letters Patents in this case are the bowels of the Text and therefore all the parts of the Letters Patents should be considered and every part of it explained according to the true and genuine sense for verba chartae regi aeque portant suam expositionem For the words of the Kings Charter do equally carry their own exposition ibid. Divinatio non interpretatio est quae omnino recedit a littera Bac Max. f. 16. It is a divination and not an interpretation which leaveth the Letter As if I have a fee-farm Rent of ten shillings issuing out of White-acre and I reciting the same reservation do grant to I. S. the rent of five shillings to be received out of the aforesaid rent and out of all my Lands and Tenements in Dale with clause of distress Though there be an Attornment nothing passeth out of my former rent because for that it is against the words and the copulation of the words shew the taking of them in another sense but if I reciting that I seised of such a rent of ten shillings do grant five shillings to be received of the same rent it is good enough without attornment because percipiendum de to be received of may well be taken for parcella de parcell of without violence of the words but if it had been of the aforesaid rent it had been void vide ibidem But as Ployden saith f. 162. Exception Non est regula quin fallit There is no Rule but faileth and as hath been said the more reasonable and equitable rule is alwaies to be preferred when they encounter and meet in opposition as contrary to this is the rule of the Civilians Leges non verbis sed rebus esse impositas And Coke l. 11. 34. b. Qui haeret in littera haeret in cortice Lawes are not imposed upon words but upon things and he that sticketh in the letter sticketh in the bark or outside of the matter and not attaineth to the inside of the sense As by the statute of 27 E. 3. c. 1. It was provided that he that draweth one to the Court of Rome in a plea which was determined in the court of the King or of other things whereof judgment is given in the Court of the King c. to defeat the judgments given in the Court of the King shall have day containing the space of two moneths c. and if they come not within the meane time in proper person they shall be put out of protection c. and the question was moved in 30. E. 3. 11. If the Defendant appeareth pleadeth and be condemned whether he shall have the Judgement of a Praemunire given by the said Act but since in 39. E. 3. f. 7. Iudgement was given against the Bishop of Chicester who appeared although the letter of the Statute is that if they come not at the same day c. they shall be put out of protection and therefore a multo fortiori when the defendant in such case appeareth pleadeth and shall be found guilty he shall have Iudgement upon the said Statute 44. E. 3. 36. and yet it is out of the words of the Act which speake onely of a default for Qui haeret in littera c. So by the Statute of 25. E 3. the killing of his Master is adjudged Treason yet by construction is it extended to his Mistresse as it is holden in 19. H. 6. 47. And whereas by the Statute of 25. H. 8. house burners were deprived of Clergy and in the Statute of 5. 6. E. 6 there was no mention of that offence in particular but onely that the said Statute should stand in force concerning the tryall of offendors in another County yet by another sentence in the said Act that every clause and sentence in the said Act touching Clergy c. shall from henceforth concerning such offences remaine and be in full strength and virtue it was adjudged that the said clause should extend to all the Act of 25. H. 8. because by that construction such an hainous offence should not passe in effect without capitall impunity and that such Malefactors shall not be encouraged to burne not onely Houses but Villages and Cities And it is frequent in our Books that penall Statutes have been taken by intendement beside the letter to the end that they shall take effect according to the expresse intention of the makers of the Act to remedy the mischeife in advancement of Justice and suppression of hainous crimes Coke ibidem vide ibidem plura And though it is a Maxime that penall Lawes are to be taken it may be conceived of such as concerne inferior and not hainous offences Coke Com. 365. b. A man seised of Lands in fee levied a fine to the use of himselfe for life and after to the use of his wife and of the heire males of her body by him begotten for her Joynture und after he and his wife levied a fine and suffered a common recovery the husband and wife dyed and the issue male entered by force of the Statute of 11. H. 7. And it was holden that the entry of the issue male was lawfull and yet this case was out of the letter of the Statute for shee never levied a fine being sole or with any other after taken husband but is by her selfe with the husband that made the loynture but this case being in the same mischeife is therefore within the remedy of the Statute by the intendement of the makers of the same to avoid the dis-inherison of heires who were provided for by the said Ioynture and especially by the husband himselfe that made the Ioynture which as it was said was a stronger case then any set down in the Statute for Qui haeret in littera vide ibidem plura Coke com 241. a. If there be Lord Mesne and Tenant and the Mesne doth grant to the Tenant to acquit him against the Lord and his heires the Lord dyeth his wife hath the signiory assigned to her for the
words in a condition shal be taken out of their proper sense ut res magis valeat quam pereat Coke com 213. a. If one giveth Lands to two and the heires of their two bodies ingendred the Donees have joynt estates for life and severall inheritances for if one of the Donees hath issue and dyeth the other shall have all by survivor during his life but if the Survivor hath issue and dyeth then the issue of the one shall have the one moiety and the issue of the other the other moiety of the Land and shall hold the Land together in common and the cause why they shall have severall inheritances is for that they cannot by any possibility have an heire between them engendred and when the grant is impossible to take effect by the letter there the Law shall-make such constâ—uction as the guift by possibility may take effect Co. 83. b. If Lessor of an house for twenty yeares maketh a Lease for two yeares rendring rent and after granteth all his terme and interest to another if the Lessee atturne the Reversion shall passe and if no Atturnement be had yet the ieterest in the Reversion shall passe so as the Grantee shall have the Land after the two yeares determined for the grant of one shall not be adjudged void if to any intent it may take effect Coke l. 4. f. 53. b. If a Termor grant his Terme Habendum immediate post mortem suam the Grantee shall have it presently ut res magis valeat quam periat Noy Max. f. 16. So if a man make a Lease for ten yeares and after for twenty yeares the latter shall be a good Lease for ten yeares after the first is expired Ibidem A release of all Actions against a Prior and Covent shall be construed all Actions against the Prior for an Action cannot be brought against the Covent Coke l. 1. f. 76. Gardiner and Bredons case Tenant for life of Land the Remainder in taile Tenant for life and he in the first Remainder in taile joyne in a fine sur conusans de droite come ceo c. to another in fee who granted a Rent charge of forty pounds to tenant for life it was agreed by all the Justices that the fine levied by tenant for life him in the first Remainder was no discontinuance of the first Remainder in taile nor of the second because every of them did only give that they may lawfully give and no forfeiture in the case be cause the law which abhorreth all wrong shal conster it first to be the grant of him in the Remainder in taile and then the grant of Tenant for life ut res magis valeat quam pereat but if a Feoffment had been made by word then it is the surrender of Tenant for life and the Feoffment of him in the Remainder Ibidem Coke l. 1. f. 45 a. In 2. R. 3. 4. it is holden by Starky and others that if the Patent of the King may be taken to two intents good then it shall be taken more beneficially for the King but if it may be taken to one intent good and to another intent void then it shall be taken to that intent to make the grant good and not to that intent to make it void ut res magis valeat c. vide ibidem plura in Alton Woods case Coke l. 5. f. 8. a. In Cessavit where the Tenure is alledged by Homage Fealty and Rent and the Demandant counteth that in doing the said services he did cease it shall be taken by construction to such services onely of which a man may cease 6. H. 7. 7. as of Rent and not of Homage and Fealty and the reason of this is ne res destruatur least the thing should perish vide ibidem plura Ployd f. 197. b. Anthony Browne Justice said that it is an office of a Judge to expound the thing ut res magis valeat quam pereat and to make all parts of the Deed and intention of the parties also to agree together Coke l. 4. f. 4. If I grant to you that you and your heires shall distraine for a rent of forty shillings to wit within my Mannor of S. that by construction of Law shall amount to a grant of a Rent out of my Mannor of S. for if it shall not amount to a grant of a rent the grant would be of little force or effect if the Grantee shall not have but a nude distresse and no rent in him for then he shall never have an Assize of it and for that reason it hath been often times ruled that it shall amount to the grant of a Rent by construction of Law ut res magis valeat 3. E. 3. 12. c. Benedicta est expositio quando res redimitur a destructione Coke l. 4. f. 25. b. Blessed is the exposition when the thing is redeemed from destruction every Mannor which consisteth of Frank-tenements and Copy-holders hath two severall Courts the Court of Frank-tenements wherein the Suitors are Judges and is called the Court Baron and the Court of Copy-holders wherein the Lord or Steward of the Mannor are Judges and if all the Tenements escheate or the Lord release the tenure and service of his Frank-tenements yet the Lord may hold his Court of Copy-holds and make admittance and grant of them ne res destruatur it is a ground in Law verba debent intelligi ut aliquid operetur Coke l. 8. f. 24 words must so be understood that they must worke some thing and not be idle and frivolous in Edward Foxes case wherein it was resolved that a demise and grant upon consideration of fifty pound for ninty nine yeares amounted to a bargaine and sale for the said yeares for when a Frank tenement or tenement passeth by Deed indented and inrolled it is not necessary to have those precise words of bargaine and sale but words which amount to so much are sufficient as if a man covenant in consideration of mony to stand seised to the use of his Son in fee if the Deed be enrolled it is a good bargaine and sale and yet there are no words of a bargaine and sale but amount to as much Coke l. 7. f. 40. So if a man for mony alien and grant Land to one and his heires or in tail or for life by Deed indented and enrolled it shall amount to a bargaine and sale and the Land shall passe without any livery and seisin It is a ground in Law verba sunt accipienda cum effectu Coke l. 4. f. 51. a. b. Words are to be taken with effect as if a man hath in the right of his wife any estate in Fee-simple Fee-taile or for terme of life c. the Baron shall have all the arrerages as well before marriage as after the death of his wife by the Statute of 10. H. 6. 11. for though by the Common Law the Executors c. of the wife might have an Action
the poor and the twenty pounds to the Queen and therefore doth the Statute of 3 Jac. c. 4. give a more speedy remedy for the said twelve pence yet shall they not be punished but upon one of them Yet when the latter affirmative Statute is contrary to the precedent Statute in matter the former abrogateth the latter as by the Statute of 33 H 8. c. 23 it is enacted that if any person being examined before the Councell of the King or three of them shall confess any Treason misprision of Treason or Murther or be to them vehemently suspected he shall be tried in any County where the King pleaseth by his Commission and after by the Statute of 1 2 P. M. c. 10. it was enacted That all trialls hereafter to be had for any Treason shall be had according to the course of the Common Law and not otherwise That latter act and though the latter words had not been had abrogated the first because they were contrary in matter But that doth not abrogate the Statute of 34 H. 8. c 2. of the triall of Treasons beyond the Seas notwithstanding the words are in the negative because it was not contrary in matter for it was not triable by the Common Law Dyer 132. Stanf. 89. 90. So the Statute of 1 E. 6. of Chanteries being in the affirmative doth alter the Statute of H. 2. c. 41. which giveth a Cessavit cantaria also in the affirmative for the one is contrary to the other in matter vide plura Coke l. 9. f. 63. a. But whensoever Lawes are contrary in quality that is where the first is a materiall or express affirmative and the latter an express or materiall negative and when the first is a materiall or express negative and latter affirmative there the latter Law doth abrogate the former As the Statute of 5 E. c 4. which prohibiteth every person to use or exercise any craft mystery or occupation unless he hath been an Apprentice for seven years doth alter the Common Law by which any one may in any manner worke in any lawfull Trade without any service precedent for without an Act of Parliament no man can be restrained to worke in any Trade Coke l 11. f. 54. a. in the Taylors of Ipsiches case And to conclude to this Argument with the generall ground given by Sir Edward Coke l. 1. 11. f. 67. a. That for that Acts of Parliament are established with such gravity and wisdome and the universall consent of all the Realme they ought not through any strained construction out of the generall and ambiguous words of a subsequent Act be abrogated as where the Statute of 16. R 23 c. 5. enacteth that all the Lands and Tenements of any one attainted in a Praemunire shall be forfeited to the King in the case of one Prudgion Pasch 21. Eliz. being tenant in taile of certaine Lands and Tenements who was attainted of a Praemunire the question before all the Judges of England was whether the estate taile was a bar or no and it was resolved by all the Justices that those generall words had not repealed the Statute de donis conditionalibus but that onely he shall forfeite them for his life and that the issue in taile should inherit vide ibidem plura Lex non patetur fractiones divisiones Statuum Coke l. 1. f 87. a. The Law will not suffer fractions and divisions of estates As if a man make a lease for life upon condition that if he doth not pay twenty pounds that another shall have the Land that future limitation is void Ployd f. 25. c. M. 18. H. 8. 3. And if after the Statute of 1. R. 3. before the Statute of 27. H. 8. A man had made a Feoffment to the use of one for life or in taile and after to the use of another for life or en-taile and after to the use of another in fee they in the Remainder might not make a Feoffment nor grant their estates by the generall words of that act for then there should be a fraction and division of estates which the Law will not suffer vide ibidem plura in Corbets case Coke l. 3. f. 32. b. If a man be seised of a Mannor to which a Leet waife or stray or any other hereditament which is not of any annuall value is appendant or appurtenant there by a devise of the Mannor with the appurtenances those shall passe as incidents to the Mannor for in that the Statute enableth him by expresse words to devise the Mannor by consequence it enableth him to devise the Mannor with all incidents and appendants to it and it was never the meaning or the intention of the makers of the Statute that when the Devisor hath power to devise the principall that he shall not have power to devise it that was incident and appendant to it but that the Mannor c. shall be dismembred and fractions made of things which by legall prescription have been united and annexed together Ibidem for the Law will not permit such factions in Estates Coke com f. 147. b. If a man hath a rent-charge issuing out of certaine Land and he purchaseth any part of the Land to him and his heires the whole rent-charge is extinct because the rent is entire and against common right and issuing out of every part of the Land and therefore by purchase of part is extinct in the whole and cannot be apportioned Coke com 309. b. If the reversion be granted of three acres and the Lessee agree to the said grant for one acre this is good for all three and so it is of an Attornement in Law if the reversion of three acres be granted and the Lessee surrender one of the Acres to the Grantee this Attornement shall be good for the whole Reversion of the three Acres according to the grant Apices juris non sunt jura Coke com f. 2 83. b. nimia subtilitas reprobatur in Lege Coke l. 4. 4â— b. The Law of England respecteth the effect and substance of the matter and not every nicity of forme or circumstance and too much subtility is reproved in the Law As it was alledged for an exception in the Enditement that the Enditement was taken before I. S. Coronatore in comitatu praedicto and not de comitatu praedicto or comitatus praedicti and every Coroner of one County is a Coroner in every County of England but not of every County but it was not allowed for the Coroner in the County c. shall in all reasonable intendement be taken for the Coroner of the County and so it is used in the Writ de coronatore elegendo ibidem vide plura Coke l. 5. f. 120. 122. It is a rule in Law that Enditements ought to be certaine but there are three manner of certainties the first is to a common intent and that sufficeth in Bars which are to defend the party and excuse him the second is to a generall
It is not just to make any one a Bastard who all his time hath been taken for legitimate 13 L. LEX est summa ratio The Law is the chiefest reason 4â—7 Lex neminem cogit ad impossibilia The Law compelleth none to impossibilities 450 Leges non veâ—bis sed rebus sunt imposiâ—ae Lawes are not imposed on words but on thiâ—gs 425 Lex citius tolerare vult privatum damnum quam publicum malum The Law will sooner suffer a private losse then a publick evill 429 Lex non praecipit inutila The Law prescribeth no unprofitable things 462 Leges posteriores priores contrarias abrogant The latter Lawes abrogate the former which are contrary to them 452 Lex non paetitur fractiones divisiones statuum The Law doth not suffer fractions and divisions of Estates 456 Lex plus respicit acta sine verbis quam verba sine actis The Law respecteth more acts without words then words without acts 464 Lex semper dabit remedium The Law will alwaies give a remedy 257 Lex fingit ubi subsistit aequitas The Law feigneth where equity subsisteth 309 Legis constructioâ— non facit injuriam The construction of the Law doth no injury 316 Lex non requirit verificari quod apparet Curiae The Law doth not require that to be verified which appeareth to the Court 137 Lex respicit naturae ordinem The Law respecteth the order of nature 144 Licet tenenti vetus oâ—us reficere non novum facere it is lawfull for the Tenant to repair an old work but not to make a new one 85 Locus ab authoritate est infi missimus An argument from authority is most weak Locus pro solutione reditus aut pecuniae secundum conditionem demissionis aut obligationis est stricte observandus That place for the payment of money or rent according to the condition of a Lease or Obligation is strictly to be observed 108 Longum tempus longus usus qui excedit memoriam hominum sufficit pro jure Long professions and long occupation which doth exceed the memory of man sufficeth for a right 178 Lubricium linguae non facile in penam est trahendum The nimblenesse and lubricity of the Tongue is not easily to be brought into punishment 278 M. MVlta conceduntur per obliquum quae non conceduntur de directo many things are granted by the bye which are not directly granted 471 Manifesta probatione indigent manifest things neede no proofe 138 Mala Grammatica non vitiat chartam sensus abbreviationis accipiendus est ut coniessio non sit inanis false Latine doth not distroy a Charter or Deed and the sense of abbreviations is so to be taken that the grant be not void 13.14 Mandata licita strictam recipiunt interpretationem sed illicita latam extensam lawfull commandes receive a strict limitation but unlawful large and extended 385 Malesicia non debent manere impunita offences ought not remaine unpunished 387 Malitia mutat legem malice changeth the Law 299 Malum quo communius eo peius an evill the more common it is the worse it is 207 Malitiae vitium connexum est personae committentis malitiam the vice of malice is connexed to the person who committeth the malice 301 Malus usus est abolendus an evill use is to be abolished 352 Magis minus non diversificant speciem more and lesse doe not diversify the species 123 Mandatumita regulatur in superioribus sicut in privatis a voluntate mandantis a commandement is regulated according to the will of the Commander as well in higher as inferior and private things 380 Misera est servitus ubi jus est vagum it is a miserable servitude where the Law is wavering 28 Majorum praecepta justa an injusta non sunt contemnenda the precepts of the ancients whether just or unjust are not to be contemned 129 Monumenta quae nos recorda vocamus sunt veritatis vetustatis vestigia 129 Mos sidelissimae vetustatis retinendus est quae praeter consuetudinem majorum fiunt neque placent neque recta videntur frequentia actus multa operatur the manner of most faithfull antiquity is to be retained and what are made contrary to the custome of our Ancestors do neither please neither doe they seeme right and the frequency of an act worketh much 123 Modus dat legem donationi the manner giveth a Law to the guift 190 Modus conventio vincunt legem the manner and agreement overcome the Law 35 Mutata forma prope interimitur substantia rei the forme being changed the substance of the thing is destroyed 85 Multa transeunt cum universitate quae per se non transeunt many things passe with the universality which of them selevs doe not passe 23 Multa ignoramus quae nobis non laterent si veterum lectio nobis fuerit familiaris we are ignorant of many things which would not be hid from us if the reading of the ancients were to us familiar 129 Multa constituuntur in lege ne curia domini regis deficeret in justitia many things are ordained in the Law least the Court of the Lord the King should faile in Justice 260 Mutata legis ratione mutatur lex the reason of the Law being changed the Law also is changed 400 Mavult princeps domesticos milites quam stipendiarios bellicis exponere casibus a prince desireth rather to imploy in military affaires domestick Souldiers then Aliens and Stipendaries 409 Multum potest in rebus humanis occasio plurimum in bellciis occasion and opportunity prevaile much in humane things but most of all in Marshall affaires 411 Multitudo errantium non parit errori patrocinium the multitude of those which erre do not patronise an error 151 N. NAturalis possessio ad prescriptionem sufficet Naturall possession is sufficient to prescription 179 Naturae vis maxima the force of nature is very great Negativum nihil implicat A Negative implyed nothing 132 Nemo tenetur prodere seipsum No man is bound to betray himself 331 Nemo tenetur turpitudinem suam detegere No man is bound to bewray his own filth and shame 222 Negatio destruit negationem ambo faciunt affirmationem A double negative maketh an affirmative 12 Nescit generosa mens ignorantiam pati A generous mind cannot suffer ignorance 13 Nemini vim facere videtur qui suo non alieno utitur He seemeth to do injury to no man who useth his own and not anothers 25 Nemo redditum invito domino recipere potest No man can receive the rent without the Lords consent 25 Nemo potest plus juris in alium transferre quam ispe habet No man can grant more right then he hath 24 Nemo videtur rem omittere cujus propria non fuit No man doth seem to lose that in which he hath no property 24 Nrcessitas saepenumero vincit communem legem Necessity oftentimes