as publique or private We call that the Law publique which appertaineth to the very Constitution of a Common-wealth and it consisteth in things holy in Preists and Magistrates For it is necessary for a Common-wealth to have Churches in which men may addresse themselves to God for the forgivenesse of their sins It is also convenient to have Priests or Ministers by whom we may be enioyned repentance for our sins and who may pray for us and mediate to God on our behalfe for his helpe and providence And it is requisite likewise That there be Magistrates ordained because by the meanes of those who are appointed to precede as Judges the Lawes may be put in execution for it were to little purpose that there should be Lawes if there were not some to governe by those Lawes d Bract. l. 1. c. 5. num 6. 4. That which we terme Private Law is that which cheifly belongs to the utility of particular persons and is secondarily necessary for a Common-wealth That no one abuse his owne And so on the other side what is necessary for a Common-wealth is likewise secundarily requisite for the profit of particular persons And this private Law hath three foundations Viz. Naturall Nationall and Civill e Bract. l. 1. c. 5. num 3. Flet. 6. c. pri Of the Law of Nature and Nations and the Law Civill TIT. II. THE naturall Law is that which nature or rather God hath instilled into all Creatures a Bract. l. 1. c. 5. num 4. 1. The National Law or the Law of Nations is that which all Nations observe and which proceeds from the naturall Law Because the naturall Law is that which is common to all creatures either on the Earth in the Sea or in the Aire b Id. l. 1. c. 5. num 6. From the Law of Nation comes the conjunctiâ—n of male and female c Plow fol. 445. And that which by common consent is called Matrimony But this cannot properly be termed a Law because it is corporated and may be seen for Laws are incorporall which discend and are introduced by the custome of Nations But from this Law proceeds the Procreation and Education of Children d Id. 303. 304. And this Law of Nations is â—olely common to man as Religion towards God that we may become assisting both to â—ur Parents and Country and repell Force â—nd Injury And from hence it comes that â—hatosever we do for the Defence of our own â—odies is adjudged legall e Bract. l. 1. c. 6. num 7. From the Law â—f Nations also are servitudes f Id. eod wars diâ—tinct and divided Nations severall distinâ—uisht Kingdomes and Dominions Manumisâ—ons setting of bounds to Land the building â—ogether and neighbouring of houses by â—hich means we have our Cities Borroughs â—nd Villiages And generally to this Law of Nations may be referred all manner of conâ—â—acts and many other things g Id. l. 1. c. 5. num 6 7 8. 2. The civill Law of England usually â—â—lled Common Law is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and â—ath a threefold Acceptation For first it is â—â—ken generally for that Law which the Enâ—â—â—sh use distinguished from that of the Romans and other Nations Secondly It is taken for these two Courts of Judicature commonly called the * Formerly Kings Bench. Upper Bench and the Common Pleas. For when we say the cognisance of any cause belongs to the Common Law we did not intend to any Court Baron County Court Pypowder Court oâ— any such Court but to one of these two Judicatories who do most strictly judge all causeâ— according to the rule of the Common Law h Doct. Stu. l. 2. c. 5. Eract l. 1. c. 5. num 5. Although there be many cases in which both in the Chancery and Fxchequer Process are issued upon Originall Writs and judgment given according to common Law i Plow fol. 9. And thirdly It is taken for that Law which we tearm Statute Law k Cook l. 3. fâ—l 86. 3. The Law of England according to somâ— hath six principall foundations viz. The Laâ— of Reason l Plo. f. 316. the Divine Law the general customes of the Kingdome certain principle and Maximes particular Customes and Stâ—tutes m Doct. Stu. l. 1. c. 4. But if we shall contract these more close we may say the Law of England hath twâ— parts Viz. Ancient Customes confirmed 〈◊〉 the consent of the People and formerly the Kings Oath And Statutes which 〈◊〉 enacted by Parliament either as Supplemâ—nts or amendments to the aforesayd Customes both which are derived from thâ— Law of Nature and Nations as all otheâ— Law â—s whatsoever which are either iust 〈◊〉 reasonable And thus wee fitly divide 〈◊〉 Lawes into written and unwritten n Fortc c. 13 There be others which make our Laâ— three fold Viz. Common Law Customes and Statutes o Cook pref l. 4. 4. Our written Law at least that which is in use is contained in Statutes p Cook l. 3. pres which were not made according to the Princes pleasure but by the consent of the whole Realm called together formerly by the King for this purpose q Fortes c. 9. 18 Bract l. 1. c. 2. nu 7. yet we as heretofore the Kings approbation was necessarily required 5. And in one pâ—rticuler the supream powâ—â— wheresoever it rest as in times past the King is above the Lawes for that it may grant priviledges at pleasure as to single persons as to Corporations and Colledges provided they become not injurious to a third person r F. n. B. fol. 28. In which if any douts arise some say it self alone hath sole power of interpreting s Bract. l. 2. c. 16. num 3. Brit. c. 63. Flet. l. 3. c. 14. Although others ascribe this power also unto the Judges that such Charrers may receive construction according to the rules of law t Cook l. 1. Case Altonwoods 6. But sometimes it falls out cases arise which are neither provided for by customes or Statutes sufficiently And there the Judges do decide by like reasons proceeding accorcording to former Precedents And for that purpose did many times meat together to argue such cases u New terms of the Law tit Demurrer But if any such disficulty chances to happen which requires a higher search then judgment is recited untill the next Parliament by the councell of which Court it is determined w Bract. l. 1. c. 2. num 7. 7. The unwritten Law consists of ancient customes of the Realme which are observed for Law x Bract. l. 1. c. 3. num 2. Littl. l. 2. c. 10. Cook'l 4. fo 21 and to the observation of which our Kings at their coronations were obliged y Fort. c. 34. by Oath notwithstanding any of these customes may be altered or nulled by a Statute z Doct. Stu. l. 2. c. 5. Plow 465. A custome is either generall or particuler A
bring a Personall Action which concerned neither Title of Lands free Tenement Inheritance or Battery in any of the Courts at Westminster in which Action the Judges of the Court should value both the Debt and Damages to be under forty Shillings that the Costs of such Suit should not be assigned greater then the principall value And that whereas the Sheriffs and their Deputies were wont formerly to cite and Summon the good people of England without any warrant or Writ to the said Courts or to imprison their bodies or distrain their Goods that from thenceforth they should not dare to attempt the like and he that made Default in this or caused another to do so should be committed to Prison without Bail or Mainprise untill he had besides Damages and Costs of Suit paid ten pounds to the party iniured and twenty pounds to the Exchequer f 43. Eliz. c. 6 4. Nor shall a man escape unpunished for moving or beginning every Suit rashly for in some Cases if the Plaintiff upon the Defendants appearance desist he shall pay Costs g 23 H. 8. c. 15. as Informers upon penall Statutes if after the Suit begun they delay discontinue or be non-suit in the same or have the Triall or matter passe against them by Verdict or Judgement of Law they shall pay unto the Defendant his Dammages and Costs which shall be assigned him by the Court. h 18. Eliz. c. 5. 5. So also they who indict or impeach any one under the pretence of any crime whereby their lives credits or Estates are in Jeopardy are liable to an Action of conspiracy i 33 E. 1. Sta. 3. 3 H. 7. c. 1. which presumes malice whereby they shall be compelled to pay the full Damages sustained by such accusation or eviction k F. n. b f. 115. â— and in some Cases they shall pay treble Damages l 8 H. 6. c. 10. 6. And I have heard from some practisers that if any one in forma pauperis procure a Liberty of bringing his Action in the Upper Bench Common Pleas or the Chancery according to the Statute m 11. H. 7. c. 12. and betray rather a Spirit of Contention in the end of the Suit then a iust cause that such person shall have corporall punishment n 23 H. 8. c. 15. 7. But our Ancestors were wont to deterr men from their light and rash Suits by an Oath for it was prohibited every one to bring any Action of Battery before the Kings Justices unlesse it were for wounds or maims without they first made Oath that his Plaint was true or an Action of Trespass for goods taken without making Oath that the Goods taken were worth forty shillings at the least o 6 E. 1. c. 8. 8. There are many Statutes made by the no lesse prudence then equity of former Parliaments p 32 H. 8. c. 30. 18 Eliz. c. 14. 27 Eliz c. 5 6. Plow 83. 522 523. for the speedy deciding of Suits which that they might be preferred before private ends and profit were to be wished by all good men in regard rhey do principally recommend the truth of causes to the Justistices reiecting all malitious calumnies of those who are subtle and litigious and amongst these that is worthy to be numbred by which the crafts and knavery of under-Sheriffs and their Officers and Bailiffes are restrained q 27 Eliz. c. 12 Of the Office and Duty of a Judge TIT. XVII OUr Kings were wont formertly at their Inauguration or Coronation to take an Oath to this Effect viz. that they would keep inviolate all the Rights and Liberties of Holy Church which were granted unto her by the Christian Kings of England That they would keep without impairing or diminution all and singular the Land and Dignities appertaining to the Crown and indeavour with all their power the restitution of such as were impaired or lost if any were that they would cherish the quiet and Peace of the Church Clergy and people that they would keep and observe the ancient Lawes and Customes of the Kingdome which were received and established by the consent of the whole people and abrogate all such Customes and Lawes which were ill and naught And lastly that they would to the utmost of their power assure Peace to the People of their Kingdome and procure it from others a Brac. l. 3. tr 1. c. 9. n. 2. F. n. b 232. A. Spec. Justic l. 1. c. 1. Flet. l. 1. c. 7. 1. The Oath of the Justices of the Superiour Courts and of the Barons of the Eychequer are to this effect viz. that they will well and truly serve the King and his People and not consent to any thing which may tend to their preiudice or Exheredation that they will not take Fee nor Robe of any man but the King that they will not take any gift of any one whose cause is depending before them except meat and drink and that of a small value nor any thing for any cause after it is tryed b Brac. ib. c. 8 n. 2 3. n. 9 10. that they will not give counsell to any one in any case which concerns the King under the pain of being at the Kings Will as to Body and Goods that they will not be deterred by the Kings Letters from doing and administring Iustice to any one b Brac. ib. c. 8 n. 2 3. n. 9 10. 2. This we have even from the very beginning c 2 E. 3. c. 8. 20 E. 3. c. 1. Dier 138. n. 27 unto this present that where any one is sued in case of property of a Fee Simple for Lands or Tenements it is at his choice whether he will be tried by his countrey or by Battell if he prefers to be tried by his countrey the businesse is determined by a Grand Assise but if by Battell then a day is appointed d Glan l. 2. c. 6. 7. Brit. c. 42. upon which the Case is committed to two combatants whom we call Champions according to the Law of single Duell between whom it is decided by the event e Dierf 301. n. 40. 41. 42. 3. The ancient custome of the Nation requires also that all Trialls of private Actions except a few as to matter of Fact f Plowd 92. 114. should be determined by a Iury of twelve free and lawfull men of the same vicinage who are neither allyed to either Party g Dr. Stu. l. 1. c. 7. or hindred by any iust exception h Dier 144. n. 59. 176. n. 27. 177. n. 33 316 n. 3. Bro. Tit. Challenge 4. Those who are indicted for any capitall crime or Felony before a Iudge unlesse any question arise touching matter of Law are not allowed Councell Yet the Laws require That the Judge himselfe should instruct the party in all things appertaining to the form of his defence lest an ignorant Innocency endanger his life i Fortesc c. 27. Dr.
Houses Parks Warrens Fishâ—ooles Mills and all things whatsoever apâ—ertaining to the said Land out of the proâ—â—ts of the said Land And to â—ender to the Heir when he shall come to age his said â—and free from all Services of the Plough â—t least as free as he found it Nor shall he â—ake any thing of the Land of the Heir as he â—eing under age more then the ordinary cuâ—tomes and reasonable Services And thâ—s â—ithout destruction or waste either of men or goods which if he shall do whether there â—o any prohibition precede or not he shall â—oose his ward and pay Damages And deliâ—er up the Land for his default to some disâ—reet and lawfull men of his Fee or to the â—ext of Kynn b Bract. l. 2. c. 37. n. 3. l. 4. tr 6. c. 19. n. 2. Mag. Char. c. 4. 5. 2. And it is true regularly that no one â—â—all remain in the custody of him who may â—e suspected that he will lay claim to the â—nheritance Whence it followes that if there â—e many Daughters and Heirs in Socage â—one of them shall be wards to the rest but â—hey shall remain in the custody of their next of Kinn who are allyed to them in that line â—o which the Inheritance cannot discend â—ut if they hold by Knights Service they shall be all under the custody of another Capitall Lord and not one alone under the Guard of another Lord by reason of the said suspition untill they come to perfect age c Bract. l. 2. c. 37. n. 6. l. 2. c. 5. n. 8. 3. A Ward may prosecute an Action of waste against his Guardian and may constitute his Attorney in the Action d F. N. B. f. 27. H. The end of the first Book THE Second Book of the Institutes of the Lawes of ENGLAND Of the division of things and the gaining a Property in things TIT. I. WEE have spoke before of the Persons and conditions of men and persons in Law We are therefore now by consequence to treat of things by dividing and distinguishing that they may the better be understood a Bract. l. 1. c. 12. in the begin 1. Now the first division of things is this that some are in Patrimony and Inheritance and some not Those which are of or belonging to our Patrimony and both moveables and immoveables which we have liberty to make use of according to our wills 〈◊〉 necessities Rights and Services are not properly to be reckoned amongst Goods but iâ— regard they are not extreneous they may the rather be accounted such b Bract. ib. n. 2. Flet. l. 3. c. 1. 2. Those which are not appertaining 〈◊〉 our Patrimony are things sacred religioâ—â— and common c Bract. ib. n. 5. 3. By naturall right these things are to be esteemed as common Running water the Air and Sea and the Sea shores as accessory For no one is prohibited comming to the Sea shoares whilst he abstaines from Buildings and Villages because by the Law oâ— Nations the shoares are as common as the Sea And therefore those Buildings which shall be erected either in the Sea or shoare are the Builders by the Law of Nations and in this case the soile follows the propriety oâ— the building although in others it be contrary the building giving place and following the propriety of the Soile d Bract. d. l. 2. c. 12. n. 5. 4. Things which are to be esteemed publick are Rivers and Ports And therefore the right of fiâ—hing used to be free to all as also the use of the banks are publick as the Rivers themselves by the Law of Nations Wherefore it is as free to every one to joyn Shipps and fasten them unto them to tye their cables or ropes to the Trees growing on them to lay any burden upon them as it is to sail or row in the Rivers themselves but the property of them is theirs to whose Fee they adione And for that reason the â—rees which grow thereon are theirs likeâ—ise And this is to be understood of those â—ivers which have a perpetuall and continuâ—l course because those which are but temâ—orary may be private e Bract. l. 2. c. 12. n. 6. but these which â—ere formerly the Peoples And by our Law â—â—ansferd upon the supream Power as repreâ—â—nting the person of all the People and conâ—â—quently of the Common-wealth it self f Plâ—w Cas Reinyer Fogassa â—herefore at this day whosoever disburdens 〈◊〉 unlades his Ship upon the banks of pubâ—â—ck Rivers must pay custome Hoc nomine to â—â—e supream power or its deputed Officers g 3 H. 7. f. 14 nor can any man fish in publick Rivers â—ithout license from the supream power first â—btained h F. B. f 88. h. 5 Where note the difference between â—ublick and common Publick are taken for â—or those things which are the Peoples geâ—erally viz. Which are for the use of man â—nly But those are common which are for â—he use of all creatures i Bract. ib. â—â— 6. Brit. c. 33. Flet. l. 3. c. 1. 6. Those things are said universall and â—elong to the generallity not to particuler Persons which are in Cities Theatres Raâ—es and the like which are common in Cities and are for the use and in the power of the Generality But of things which belong and appertain to the generallity some are tearmed Venalia not from the use but the power under which they are and profit as the lands and Servants of Cities so that they cannot be called any ones particularly k Bract. ib. Brit ib. Flet. ib. Some things there are which may many waies be said not to be the goods of any one as first by the Law of nature Wild Beast Birds Fishes and Men. Next by Judgment as things Sacred religious and holy Theâ—â— by accident as an Inheritance lying before it be entred upon or appropriated and 〈◊〉 Wreck By will as any thing that is left and forsaken and by process of time as Treasure l Bract. ib. n. 10. l. 3. tr 2 c. 3. n. 4 5 6. D Stu. f. 157. Brit. c. 33. Flet. l. 1. c. 43 44 47. l. 3. c. 1. but by our Law Wrecks things that are left and forsaken and Treasure belong to the publick Exchequer m Kitch f. 12 f. 30. f. 40. Stat de Prerog Reg. c. 11. 8. Things sacred are those which are duely set apart by the Clergy for Gods Service As Churches and Gifts duely dedicated for holy uses as Chaliees c. Which are forbidden to be alienated except for the redemption of Captives also Church yards and Chappell 's and although structures happen to be dimolished notwithstanding the ground remaines sacred still Now Sacruâ— differs from Sacrarium Sacrarium signifying only a place where holy things are laid n Bract. ib. n. 9. l. 2. c. 27. n. 2. c. 5. n. 7. Brit. c. 33. and besides all these the Kings High way
THE Institutes of the Lawes OF ENGLAND Digested into the Method of the Civill or Imperiall Institutions USEFUL FOR ALL GENtlemen who are Studious and desire to understand the Customes of this Nation Written in Latine by JOHN COWEL Doctor of the Civill Law and Regius Professor in the University of Cambridge AND TRANSLATED INTO ENGLISH ACCORDING TO ACT OF PARLIAMENT FOR THE BENEFIT OF ALL. By W. G. Esquire London Printed by Tho Roycroft for Jo Ridley at the Castle in Fleet Street by Ram Alley 1651. THE PREFACE THE Eminency of our Author is so well knowne to this present Age that it were to little purpose for me to imagine that what I am able to say would add any thing to â—is Glory Only this his too much cryâ—ng up Parliament Priviledges rendred him not so much a favourite of those former times as his worth merited â—or his Bookes so vendible as they have â—â—en since these late changes in England And therefore though this Treatise be of the Lawes of England sinâ—â— himselfe was so good a Common wealth man I hope for the Authors sake it wiâ—â— find no less acceptance in â—he Englisâ— World then if he had lived to mayntaine what he in that Age durst avow and thereby appeared in his owne naturall and proper colours If in anthing I have erred in this Translation Charity can pardon me especiallâ— when I shall affirme that this was worke of Charity in my selfe as I conceived not to let so choyse a methoâ— of our English Lawes lye obscured in a language which I know many of this Nation who were wel-willers to the Law could not understand and to those only it is intended And if it happen into any other hand especially into such as hate the profession of the Law I do no â—â—re regard their censure then they do the Laws Precepts which our Author teâ—â— us are to live honestly to do no injury to any one and to render every one their due Farewell A Table of the generall Heads contained in this Treatise OF Justice and Law fol. 1 Of the Law of Nature and Nations and the law Civill 2 Of the right of Persons 7 Of Free-burn 11 Of such as are made free 12 In what causes Manumission cannot be 14 Of the taking away the Law which was called Lex fusia caninia 14 Of those which are in their owne and those which are under the power of others 15 Of Paternall Jurisdiction 16 Of Marriages 19 Of Adoption 27 How and by what meanes Paternall jurisdiction is dissolved 28 Of Ward-ship 30 Who they are that by Test may appear Gardians 31 Of lawfull Guardian-ship of Kindred 32 Of Disfranchisement or diminutio Capitis 34 Of the lawfull Guardian-ship of Lords or Patrons 36 Of the legall Guardianship of Parents 40 Of fiduciary Guardian-ships 40 Of the Attilian tutor-ship which is appointed by the Lex Julia titia 41 Of the authority of Tutors and Guardians 43 By what meanes Ward-ships expire 45 Of Tutors or Overseers 46 Of the security which is to be given by Guard 49 Of the Excuses of Guardians 50 Of Guardians which may fall under suspition 50 Of the division of things and the gaining a property in things 53 Of things corporeall and incorporeall 71 Of the services which Inheritances are bound unto 81 Of Vses and Profits 97 Of Vse and Habitation 100 Of Customes and Prescription ibid. Of Gifts 105 What persons may alienate and what not 114 By what person wee may make acquisition or gaine to our selves 116 Of ordaining last Wills and Testaments 117 Of the Military Testament 122 Who they are that may make a Will ibid. Of the dis-inheriting of Children 126 Of the instituting of Heirs 128 Of the ordinary substitution 130 Of Pupillary Substitution 131 How Wills are invalidated 132 Of those Wills which were called by the Civilians Testamenta inofficiosa 134 Of the quality and difference of Heirs 135 Of Devises 136 Of taking away or translating Devises 147 Of that law wch the Romans called Lex Falcidia 148 Of those Trustees which the Romans called Fidei Commissarij Haeredes ad sanatusconsultum trebellianum 152 Of things left per fidei Commissum ibid. Of Codicills 153 Of Inheritances which are conveyed from such as dye even Intestate 154 Of the legall Succession on the Fathers sidc 157 Of the Tertullian decree 159 Of the Orphitian Decree 160 Of the succession of Cozens by the Mothers side ibid. Of the degrees of Consanguinity 161 Of the Consanguinity of those who are servile 162 Of the succession of such as are made free ibid. Of the assignation of such as are made free 163 Of the possession of Goods ibid Of acquiring by Adrogation or Adoption 164 Of him to whom Goods are granted for liberty 165 Of successions which were amongst the Romans by the sale of Goods according to the Claudian decree Ib. Of Obligations 166 How an Obligation is contracted by a thing done 167 Of Obligation by words 169 Of the two Parties in a Covenant Promise 171 Of the Covenants of Servants 172 The division of Covenants ibid. Of void and unprofitable Covenants ibid. Of Sureties or Pledges 177 Of Obligations by writing 178 Of Obligations made by consent 182 Of Bargain and Sale 183 Of Letting and Hiring 187 Of Partners and Fellowship 195 Of Commandements and Attornments 202 Of Obligat which arise from implyed Contracts 203 By what persons an Oblig is acquired unto us 205 By what meanes an Obligation is taken off 206 Of Obligations arising from Crimes 209 Of things taken by force 211 Of the Aquilian Law 213 Of Trespasses and Injuries 215 Of obligations which arise from imputed crimes 217 Of Actions 218 What is said to be a Contract made by him who is under the power of another 227 Of those Actions which by the Civil Law lay against the Lord for an offence or Crime done by his Servants or Cattell 229 Whether a four-footed Beast may be said to commit a Trespasse or not 230 Of those by whom we may sue 231 Of giving of Pledges or Securities 232 Of perpetuall and temporall Actions which discend to Heirs and against Heirs 238 Of pleas and exceptions 240 Of Replications 243 Of Prohibitions 244 Of the penalty of those who are rasbly litigious 245 Of the office and duty of a Judge 249 Of publique Judgements 254 THE First Booke of the Institutes of the Lawes of ENGLAND Of Justice and Law TIT. I. JUstice is a constant and perpetuall will of rendring unto every one their Due a Bract. l. 1. c. 4. num 2. Flâ—t. l. 4. c. 1. 1. The knowledge or learning of the Law is a knowledg of things both Divine and Humane and a Science distinguishing what is just what unjust b Bract. l. cod num 4. 2. The Precepts of the Law are these To live honestly to doe no injury to any one and to render every one their due c Id. cod nu 6. 3. The Law is to be considered either
generall custome is that which is observed through the whole Realme and is more properly tearmed by us a common Right a Bract. l. 1. c. 1. nu 2. c. 3. num 5. A particuler is that which is in force in divers particuler Counties Cities Burroughs Villages and Mannors b Cook l. 4. fol. 78. Doct. Stu. l. 1. c. 8. 10. N. l. Entr. tit Customes Kitch c. Customes fol. 102 The publick Judicatories also of England have their customes likewise which are observed as strictly as Lawes c Cook l. 2. fol. 16. 17. l. 4. f. 23 24. Stu. c. f. 93. But any custome which is repugnant either to Law or Reason is to be abolished d Plow fol. 400. 8. Naturall Lawes or the Lawes of nature are immutable e Plow 88. Elet l. 1. c. 4. But the Law of England may by the consent of those by whose advise it was first ordained to be altered f Bract. l. 1 c. 2. num 7. Yet so as it do neither oppugne Reason or the Law of Nature 9. Now that Law concerning which we shall treat at present belongs only to persons things or Actions according to the Rights and Customes of England And because Persons are the most worthy as for whose sake all Lawes were ordained Therefore we discourse first of them and of their states and Doct. Stu. l. 1. c. 19. Speciâ—l Justic l. 3. conditions which are various and diverse h Bract. l 1. c. 6 Flet. l. 1. c. 1. Of the Rights of Persons TIT. III. THe first and shortest division of Persons is this That all men are either Free or Servants a Bract. l. 1. c. 6. Flet. l. 1. c. 1. 1. Now liberty is a naturall faculty in every one to doe what seemeth good to them so it be neither against Law or Authority b Bract. eod nu 2. l. 2. c. 19. num 4. Or it may be defined an evacuation of servitude because it is directly contrary unto it c Fl. l. 1. c. 2. 2. Servitude is a constitution of the Law of Nations by which contrary to nature one is subiected to anothers power and it is so called from Servando and not Serviendo for anciently Princes used to sel their Slaves and for that cause they did reserve rather then kill them d Brit. f. 77. Wherefore when they were afterwards set at liberty they were called Manumissi as being delivered out of the hand e Bract. eod num 3. Brit. c. 31. Spe. Just c. 2. Flet. l. 1. c. 3. 3. Servants are either those which are borne so or made so Those which are borne so come from Natives Father and Mother whether they be marryed or not which is true both in Natives and them which are free f Lit. l. 2. c. 11. whether they be in the power of their Lord or out of his power Also that is a Servant whose Mother being a Native is not marryed notwithstanding that the Father be free Because in that case as a common conception it followes the condition of the Mother g Bract. eod n. 4. Brit. d. c. 31. Flet. l. 1. c. 3. Spec. Just d. c. 2. And on the contrary The Issue of a free Woman illegittimate though begotten by a Servant And it is borne free because in our Law it is reputed Nullius filius h Bract. l. 1. c. 6. Instit Jâ—r com c 34. Those which are Servants borne we terme Servants by Prescription as those also may happily be called Free by prescription who have gained their freedome through the negligence of their Lords i Bract. l. 1. c. 10. n. 13. Fl. l. 1. c. 7. l. 4. c. 11. Dyer fol. 60 n 23. 4. Those which we call Natives are almost the same with those whom the Romans called Adscriptim gleba namely those which served the Land together with their Lords And were mancipated and aliened with their Estates k Bract. l. 1. c. 6. These we tearme Villaines Regardants l Littl. l. 2. c. 11. Brit. c. 66. fol. 165. b. Bra. l. 1. c. 11. n. 1. 2. Spec. Just l. 2. because they doe Villis inservire Of whom the Ancient Writers of our Lawes speak thus A native Servant is such a one who is begotten by a Free man of a Woman who is a Villaine and lives in a Villainage whether they be marryed or not But at this day the Issue which is begotten by a Free man of a Native is free m F. W. fol. 78. G. 5. And so on the contrary if a Villaine goe in unto a Free woman the Issue shall be free but if it be begotten between the Villaines of severall Lords then it is materiall to observe in whose Villainage it was borne and whom it ought to follow whether Father or Mother according as they were either marryed or unmarryed or according as they were either within or from under the power of their Lords Also if it be the Issue of a Free-man and a single Woman a Villaine the Issue shall be native because it follows the condition of the Mother But if of a she Villain and a Free-man marrying out of the Villinage and in Libero Thoro it shall be reputed free and see of a Free-woman and Free-man n Bract. l. 1. c. 6. n. 4. Brit. c. 31. Fl. l. 1. c. 3. 6. Those which are made Servants are made so by captivity from the Law of nations For when Warrs began captivity followed A free-man may also be made a villaine by Law namely by his own confession and acknowledgement made in one of the * Formerly the King's Courts superiour Courts o Bract. l. 1. c. 6. n. 4. Brit. c. 31. 43. Fle. l. 1. c. 3 5. Lit. l. 2. c. 11. A Free-man may also become a Villain according to the Ancients p Bract. l. 1. c. 6. If being once manumissed he shall happen to be called back again for his ingratitude into servitude But this by the means is uncontradicted q Fort. c. 46. Also a free-man may be made a Villain if at first being made either Clark or Monk he shall afterwards return to a Seculer life because such a one ought to be restored to his Lord r Brac. l. 1. c. 6. n. 4. Flet. l. 1. c. 3. Those which are made Villains are called Villains in grosse because they are of themselves without being appendant to any Estate s Lit. l. 2. c. 11 But all that are Villains in grosse are not servants made Because there may be villain Issue between those which are our Captives or by any other of this way become Servants Which we soon as born like the Issue of Natives fall immediately into the power of the Lord. 7. A Free-woman is not made a Villain by marrying with a Villain and this is in favour of Liberty against the common rule of our Law which speaks the Wife to be the same flesh
by right of Inheritance But if Tenant in Socage dies the next Heir whether Son or Daughter if an Infant shall be in the custody of the next of Kinn on that side to whom the Inheritance cannot discend for examples sake if the Estate come by the Fathers side then the Mother or if she be dead the next of Kinn on her side shall have the custody of the Infant If by the Mothers side then the next of kinn on the Fathers side a Glan l. 7. c. 11. Lit. l. 2. c. 5. Bract. l. 2. c. 77. n. 6. 52 H. 3. c. 17. Broo. tit Guar. prochein am 11 12 13. Plowd 295. and this is the reason of the Law Because the Infants may be in less danger in their hands to whom their death is least advantagious b Fort. c. 44. 45. so that none that is a Coparâ—â—ner in Socage ought to be in the Gard or Custody of her Coparâ—â—ner or her Husband but of some of her Parents and if any one shall buy the Gard of the Lands or the marriage of the Daughters and shall take any of them to Wife he is presently suspected and shall by the Law loose the Gard of the Body and the marriage of the rest by reason of the suspition c Fle. l. 1. c. 9 1. But if two Brothers purchase Land 〈◊〉 them their Heires the elder if at age â—ay have the Gard of the younger being 〈◊〉 Infant provided they be both legitimate d Brit. c. 35. fol. 92. 2. And these Heires according to the â—â—cients go out of Wardship at fifteen years 〈◊〉 age e Glan l. 7. c. 9. Bract. l. 2. c. 36. n 2. Flet. l. 1. c. 11. But according to the moderne â—â—actise at fourteen f Lit. l. 2. c. 5 Doct. Stu. c. 7 fol. 141. F. B. 118. in regard the Law â—â—pposeth that at this age they are able to â—â—rform those things which belong to Husâ—â—ndry But Tenants by the custome called â—avelkinde being sixteen years old comâ—â—eat may alien their Lands by Feostment â—â—thout license from their Guardians g Dyer fo 301. n. 41. Fitzh Custome 11. Brook ibid. 50. 3. So also Tenants in Burgage who are â—â—fants their Father or Ancestor being dead 〈◊〉 committed for the same reason which â—enant in Socage are to the Custody of â—â—eir Kindred From whence they are freed 〈◊〉 soon as they shall be able discreetly to â—unt Money and measure Cloth and perâ—â—rm other such like businesses But in this â—â—se the certain time is not defined but is adâ—â—dged by the discretion and maturity of the â—eires h Bract ubi sup Flet. l. 1. c. 11. 4. A Woman is supposed to be of perfect â—ge in Socage in all cases so soon as she is aâ—e to know how to dispose of her house and 〈◊〉 do those things which belong to the disâ—â—sing and ordering her Family and is able 〈◊〉 understand what appertains to Cone and â—â—ey which cannot be before she be fourteen 〈◊〉 fifteen years old because this age requires â—â—der and judgment i Bract. l. 2. c. 39. n. 2. 5. A female Heir was according to somâ— ancient writers judged equall with a malâ— as for years according to the diversities â—… Tenures viz. That she should have the samâ— age in Burgage and Socage as a male â—… wit fifteen years And in Chivalry likewiâ—… as the male viz. 21. And that then â—… Wardship should end But according tâ—… others a Woman is said to be at full age iâ—… Chivalrie at fifteen for then they say she able to order her house and to marry a Huâ—…band who shall be able to perform Servicâ—… for her k Bract. l. 2. c. 37. n. 3. But our moderns define otherwise and here they put a difference whether she be fourteen years old at the death oâ—… her Ancestor or not for if she be she dâ—… immediately receive the profits of her Lanâ—… otherwise not till she comes to sixteen l Instit Jur. com c. 24. Lit. 2. c. 4. 6. Guardian in Socage shall give an aâ—count of his Office to his ward when tâ—… Wardship is out m Lit. l. 2. c. F. B. 118 119 262. Flet. l. 1. c. 12. But he may commit tâ—… Custody of his Ward to a stranger and hâ—… Grant shall be good n F. B. 143. P. Of Disfranchisement or Deminutio capitis TIT. XVI THat which the Romans called Deminâ—… coepitis and devided into three kindes 〈◊〉 so distinguished by the English Notwithâ—â—â—nding that we do tacitely acknowledge it â—â—uble by our Lawes That which they tearâ—â—ed the least we wholy omit for those which 〈◊〉 emancipated by their Fathers do not â—â—ose the Right of their former family But 〈◊〉 they may at least making a partition 〈◊〉 Goods and Chattells be received as to 〈◊〉 successiion or Inheritance of an Intestate 〈◊〉 those who are adopted by others have 〈◊〉 rights of their new faculty either â—â—on the sole agreement or the expressed â—urtesy of those by whom they are adopted â—â—thout assistance of the Law required or â—â—pected a Sup. tit Adopt 17. 1. Those who are Servi paenae namely â—â—ose which have sentence for Treason or â—â—lony loose all that can be lost Not only â—â—eir Freedome and Liberty but even all â—â—at they have and their lives also b Stan. placit Coro l. 2. Prerog c. 44. Nor â—â—ve they other Successor then the Excheâ—â—er or the Lord of the Mannor as we shal â—â—ew else where c See the 4. Book tit of Pub. Ju. and therefore we may â—â—th reason call this the greatest Disfranâ—isement or Capitis diminutio 2. And although the ancient Law which â—â—nished d Brac. l. 3. tract 2. c. 16. Brit. c. 16. those who took Sanctuary for reason be abrogated e 22 H. 8. c. 14. 36 H. 8. c. 13. 28 H. 8. c. 7. 32 H. 8. c. 12. 33 H. 8. c. 15. 1 E. 6. c. 12. 2 E. 6. c. 2. c. 33. 5 E. 6. c. 10. yet at this day â—ere are certain crimes which are punished â—â—th abjuration f Ch. de Forrest c. 10. 13 Ed. 1. c. 35. 25 H. 8. c. 14. 35 Eliz. c. 2. but those who undergo â—â—is penalty seem to undergo the lesser disâ—anchisement or that which the Romans â—â—lled Medium capitis diminutionem 3. That which was tearmed Cognationis jus 〈◊〉 the lesser and more inferiour Capitis diminutio and seems to be wholy taken away with us for those who abjure the Realâ— are wholy thrust out of protection g Bract. Brit. ut supra anâ— those who are out of the Allegiance of the supream power of England have nothing iâ— England h Bract. l. 5. c. 23. n. 3. Of the lawfull Guardianship of Lords or Patrons TIT. XVII OUR Lawes do not decree any thiâ—â— that I know concerning that Patronâ—â—â— Tutela which the Roman Law mentions 〈◊〉 we have another kinde
absence of the Owner and is either Crand or Petite according to the thing taken Grand is when the Moveable that is stollen exceeds the value of twelve pence Petite is when it is under the value c Westm l. 2. tit Indictments s. 58. Spec. Justic l. 1. c. larc Robbery is when it is taken from the person or in the presence of the Owner d West ib. s. 60. 3. Every Theft with us is a publick crime for Petite Larceny though it be not punishable with death but with imprisonment and stripes is according to some accounted Felony e Bro. Coron though others are of contrary Judgement f Stam. pl. coron l. 1. c. 15. Wherefore we shall referre this â—ather to the Order of publique Judgements 4. Yet wee have thought fit to observe here That it is in his choise who loseth any thing by Theft whether he will prosecute the party civilly or criminally For dissembling the Theft he may suppose the Theife to have found the thing by accident and so detaine it to himselfe and so recover the thing it selfe or its value g Trover in Book of Entr. Brac. l. 5. tr 5. c. 31. n. 2. Flet. l. 1. c. 38. Dyer fol. 50. n. 5. But of criminall prosecutions wee shall speake hereafter Of things taken by force TIT. II. THe word Trespasse hath a very large latitude and comprehends every violation of the Law But our discreet Lawyers call only private crimes Trespasses and make distinctions even amongst these for those who are accompanyed with force are Trespasses more properly a F. N. B. 85. G. Fle. l. 4. c. 4. Yet they call others Trespasses likewise from the species of an unlawfull act though not violent but accidentall or to use their own words suâ—… casu b F. N. B. fo 92. E. Terms v. Action sur le case whence the forme of Action in the first case hath alwayes these words vi armis and in the second contra paâ—… But the Plaintiffe may if hee please dissemble the force as where he brings his Action in the Sheriffs Court who hath no Cognisance de vi armis And though he feigne a lesser Trespasse when really it was greater yet he shall recover damages and this seems the reason why our Writers do so often confound and treat promiscuously of these trespasses which are of a different nature c N. boo Entries tresp 85. Trespas sur le case 92. Now we have thought it congruous enough to refer violent Trespasse to the title of things taken by force and the other to the two following Titles For since the Roman Law makes the subject of these Trespasses which our Law of England divides only into two heads if threefold lest it not seem strange that I refer some Cases which beside the force affixe a contumely also upon the person injured to a third Title 1. Now the Action for Goods taken by force or de vi aâ—mâ—s lies as well for things taken by force which are inanimate as Cats Ploughs c. As things animate as Oxen Sheep and those not only tame but wilde also if they be in our Custody and Jurisdiction As Conies which are in our Warren d F. N. B. 89. K. and Pigeons in our Columbaries e Id. 86 A. So also for our Servants f Id. 88. D. I. and for Apprentices g Id. 91. I. for Wives drawn away with their Husbands Goods h Id. 89. O. for the stealing away of a Sonne or a Daughter who is an Heire and marrying them with any one without our consent i Id. 90. H. for quantity as many k Id. 87. M. for goods of Felons taken out of our Liberty l Id. 91. F. for Weifs and Strays driven or carryed out of our Fees m Id. 91. B. new â—oo Entr. Trespass Bro. Tresp Fulb. Wrongs 2. And this Action is given for the repairing the losse lustained that not only against the party that did it but against those that commanded the doing of it as in every Trespasse upon the case n Dr. Stu. l. 1. c. 9. But not against the Executor of the Trespassor o Id. l. 2. c. 10. nor his Heirs p Brac. l. 3. tr 1. c. 4. n. 4. because it is personall and penall Of the Aquilian Law TIT. III. TRespasse upon the case is that which either brings damage to the person injured or disgrace and contumely with the damage and this the Civilians comprehend under the Title of the Aquilian Law be cause Cains Aquilius was the Author being Tribune of the People of this popular Law by which these trespasses were punished though they referr this to the Title of injuries 1. Now he who damnifies the Estate of condition of another commits a Trespasse upon the case As for example where a Sheriff by a Writ directed to him takes a Debtor and afterwards lets him escape a F. n. b. fo 93. A. C. or upon his return makes false Information to the Court that the party hath no Lands or any thing else in his Bailiwick whereby he may be distrained and so becomes the occasion of the taking of his Body b Id. ib B. so also he who fixeth stakes in any water whereby anothers Ship or Vessell laden with Corne or other Merchandise is overturned c Id. 92 F moreover an Atturney or Counsellor at Law who through ignorance or deceit Iooseth his Clients cause d Bo Entr. Action Sur le case in Atturney a Barber who shaves anothers Beard ill or with a foule Raisor e Id in Barber a Physition or Chirurgeon who either ignorantly or maliciously handles a sick or wounded person f Id. in Phisi a Goaler who useth a Prisoner more hardly then he ought g F. N. B. 93. he who distraines the Cattell of anothers Plough where he may make other reasonable distress h Dier fo 312. n. 86. or he who having justly taken anothers Cattell by distresse doth not carry them to an open Pound but to a place unknown the Rectory of a Church a Fortresse or into another County that they cannot be redeemed or replevin'd by their Owners i F. N. B. in the Writ of Repleg averâ— fo 68. and the Writ Vetito nannio 73. he who interverts the Course of a River which should drive a Mill k Dier 248. n. 80. and fo 320. n. 38. a Lessee or free-holder who commits waste l Id. fo 36. n. 38. and fo 256. n. 10. But this is speciall in regard that by an Act of Parliament he forfeits the thing wasted m 6 E. 1. c. 5. but in regard the Species which might be referred hither are infinite I shall rather remit you to those who are more large as treating expresly upon this subiect then trouble you with too great a glut and multitude of examples n Boo. Entr. 10. Action Sur
19. 193. and those also which are of the same nature q Id. 157. Plow 357 358 11. We may sue for a possession or for that which is of the same nature whether they be lost by force or detained being committed voluntarily to another against Right in which the former Cases we may be relieved by â—â—its which we call Assises r F. n. b. 177. 179 181 183. 134. 88. 190. 191. and those which are of the like nature s 13. Ed. 1. c. 25. Brac. l. 4. 12. And for the recovery of a possession which being voluntarily delivered to another is uniustly detained There are writs of Entry of divers kinds and others like them t F. n. b. 201. 205. 206. Brac. l. 4. tr 7. 13. Preiudiciall Actions also are reckoned â—mong reall now those are termed preiudiciall which arise from incident and emergent questions in which it is inquired whether one be born free or not if not then whether he be actually free or a Servant a Son or not a Son and if a Son then whether legitimate or Bastard c u Brac. l. 3. tr 1. c. 4. n. 9. Brit. c. 108. and they are called preiudiciall because they are iudged and determined before the principall Action w Id. ib. 14. Actions which are mixt being as well against the thing as the person and so called because they have a mixt cause relating to both as the dividing an Inheritance between Co-heirs the setting of Bounds amongst Neighbours for if we respect the persons they are both complainants and respondents although he is not properly said to be complainant who cites the other to come to Judgement The Writs which are proper in these Cases are these de Partitione x F n b. 61. de rationabilibus divisis y Id. 121. de perambulatione facienda z Id. 133. de Curia claudenda a Id. 127. de reparatione facienda b Id. ib. 15. Furthermore there are Actions which are given either solely as penall c Brac. l. 3. tr 1. c. 4. n. 5. or as beneficiall to both which some call Civill criminall or mixt d Glan l. 1. c. 1. Brac. l. 5. tr 5. c. 31. Littl. c. Releases 16. Those which relate meerly to a particular thing are all those which grow from Contracts or of the same nature and claim nothing for wrongfull detaining or nomine penae as a punishment of the Crime e F. n. b. fo 1. and those are penall which are ordained for the preventing of misdemeanours of which sort are those popular Actions which are given to Informers for the benefit of the Exchequer and themselves against the breakers of Statutes f Id. 171. and those relate both to the thing and person which regard the thing as the principall cause and the person as to personall performance g Brac. l. 3. tr 1. c. 4. n. 5. of this sort is a writ of Assise which claims the thing as to restitution and yet is against the disseisor as to Dammages for the iniury h Id. l. 4. tr 1 c. 6. n. 3. 20 H. 3. c. 4. and a writ of waste which requires the thing wasted and trebble dammages i 6 Ed. 1. c. 5. 17. There is also a third division of Actions for that some give barely the dammages k Brac. l. 3. tr 1. c. 4. n. 6. sustained some double some trebble and some ten-fold k Brac. l. 3. tr 1. c. 4. n 6. Those which give barely â—he Damages sustained are all Actions of Trespasse l New book of Entries Trespasse Those which give double damages as against such as make an assault against those who are called to the high Court of Parliament m 11. H. 6. c. 11. and against him who prosecutes any Action in the Court of Admiâ—alty which is not within the jurisdiction of â—he Court And lastly against those who â—et too high a rate upon Victuals n 2. H. 4. c. 11. Treble damages are against those who unjustly exâ—ct money for the probate of Wills and Teâ—â—aments o 23. Ed. 3. c. 6. Or who cause Ryots p 3. 4. E. 6. c. 5. And â—en-fold the damages are recoverable against 〈◊〉 Juror who receives a Bribe for bringing in 〈◊〉 Verdict q Ib. 1. Mar. Parl a. 1. c. 2. 18. Besides wee have not unaptly said some Actions to be bona fidei and some of â—rict Right for though no such distinction 〈◊〉 expresly found amongst our Lawyers yet 〈◊〉 finde them frequent in practice For the Damages which we receive from Contracts or Trespasses are left and remitted to the eâ—â—â—ty of the Jurors what and how much it 〈◊〉 and Judgment is given according to their estimation Where on the contrary in Actions which have reference principally to the thing unles the complainant prove the thing 〈◊〉 Action to be due and to be his the Action falls because neither the Jurors nor the 〈◊〉 have any other power in these then to condemn the Defendant as to the thing in Action or to free him Whence it happens that one and the same thing often occasions a double Action viz. a principall Action for the thing which is of strict Right and another which is accessory for the recovery of Damages which is bona fidei 19. In the distinction of arbitrary Actions from Actions bona fidei The Civiliaâ—â— doe not very punctually agree Nor do wee find any other of them in use amongst us in England more then these we have observed Only this we may adde That the Chancellour of England or the Keeper of the Great Seale whose Authority is almost the same to whose Conscience and Equity every one who is without remedy in the Law may appeale from other Courts before Judgement given is not bound or prescribed by any Lawes but that hee may decide and compose all causes which are for this purpose brought before him according to the Judgement and Conscience of a Good man and imprison him who is contumacious and refractory to his Decrees and detain him there untill he becomes conformable r Plowd 532. 20. We have no use with us of that which was called Actio de Peculio in regard we are not obliged by their Contracts who are under our power unlesse so farre as they be in order to our Commands s Dr. Stu. l. 2. c. 42. What is said to be a Contract made by him who is under the power of another TIT. VII THose Contracts which are made by our Servants by our command are binding â—o us a V. n. b. 62. F. n. b. 120. G. For if I make one of my Servants â—y Bailiffe and give him a power of taking Oren or other Cattel to graze in my pasture 〈◊〉 a certain price I cannot have an Action 〈◊〉 Trespasse or de conculcatione herbarum against him who shall upon such a Contract â—urn his Cattel into my