may have a Quare impedit against another if shee be disturbed of her presentment by turne so cannont Joyn-tenants or tenants in common F. N. B. 34 I. For equality of partition among Coparceners a rent granted shall be a Fee-simple without the word heires Coke com f. 10. a. Coke com 102. a. Homage ancestrell is a speciall Warranty in Law and the Lands generally which the Lord hath at the time of the Voucher shall be lyable to execution in value whether he hath them by descent or purchase but in the case of an expresse warranty the heire shall be charged onely with such Lands as he hath by descent from the same Ancestor so in this case Firmior potentior est operatio legis quam dispositio hominis Lease upon condition that if it happen that the Lessee make any wast in or upon the Premisses it shall be lawfull for the Lessor to re-enter and the Lessee suffereth the house to fall in default of covering and reparations Dyer and Wash said that the Lessor might re-enter for such wast is punishable by the statute of Gloucester for destructionem facere in domibus Dyer 281. b. and so it is if he suffer wast to be done by a stranger Doct. Stud. l. 2. c. 4. yet if the Tenant had been bound in an Obligation that he shall do no wast he shall not forfeit his Bond by the wast of a stranger for greater is the operation of the Law c. A man is seised of three Mannors of equall value and taketh a wife and she taketh one entire Mannor for her Dower which is charged with a rent she shall hold it charged otherwise it is if she had recovered her Dower by a Writ of Dower and had had a third part of each assigned to her Inutilis labor sine fructu non est effectus legis Non licet quod dispendio licet Sapiens incipit a fine Et lex non praecipit in utilia Coke com f. 127. b. The Law commandeth no vain chargeable and unprofitable things As a Villain by the Law shall not have an appeal of Mayhem against his Lord for in an appeal the Mayhem man shall onely recover damages and if the Villain in this case recovereth damages against his Lord and thereupon hath execution the Lord may take it that the Villain hath in execution from the Villain and so the recovery void inutilis labor stultus and unprofitable labour is foolish and idle which the Law prescribeth not Coke com f. 197. a. Tenants in Common of an Hawk and an Horse shall joyn in Assise for otherwise they would be without remedy for one of them cannot make his plaint in an Assise of the Moyety of an Hawk or Horse because the Law will never inforce a man to demand that which he cannot recover as the Moyety of an Hawk or an Horse or any other entire thing for Lex neminem cogit ad vana in utilia Coke com f. 319. b. If a Lease be made for term of life the remainder to another in tail the remainder over to the right Heirs of the Tenant for life and Tenant for life granteth his remainder in fee to another by his Deed the remainder shall presently pass without any Attornment for none can atturn but himself and it were in vain that he should atturn upon his own Grant for quod vanum est lex non requirit Coke l. 5. 84. a. Where a man is in custody of the Sheriff by process of Law and after another Writ is delivered to him to take the body of him who is in custody presently he is in his custody by force of the second Writ by judgment of Law although he make not an actuall arrest of him for to what purpose shall he be arrested of him who is and was before in his custody for the Law prescribeth no fruitless things Actus legis nemini facit injuriam Coke com 178. a The Act of Law doth injury to none As if the land out of which a rent-charge is granted be recovered by an elder Title and thereby the rent-charge is voided yet the Grantee shall have a Writ of Annuity because the rent-charge is avoided by course of Law So if Tenant for another mans life grant a rent-charge by Deed to one for one and twenty years Cestuy que use dieth the rent-charge is determined yet may the Grantee have during the years a Writ of Annuity for the arrearages incurred after the death of Cestuy que use because the rent-charge did determine by the act of God and course in Law which wrong no man ibid. Coke l. 5. f. 87. a. If the Defendant in debt dieth in execution the Plaintiff shall have a new execution by Elegit or Fieir facias because otherwise the Plaintiff should lose his debt without any default in him and the act of God and the act in Law will not prejudice any one Trewgrijard being a Burgess of the Parliament who was taken upon an Exigent post capias and yet upon his Writ of priviledge of Parliament the Sheriff let him go at large for the King and the Realm hath an interest in the body of every Subject and the Common-wealth shall be preferred yet the party of the Parliament may be taken in execution again after the Plaintiff shall not be prejudiced in his execution by the act of Law which doth no man wrong neither is the Sheriff chargeable because his Office consists chiefly in the execution and service of writs and is sworn to do it Dyer 60. Lex plus respicit acta sine verbis quam verba sine actis Coke l. 3. f. 26. The Law respecteth more acts without words then words without acts As at the Common Law if lands be given to Baron and Feme in taile or in fee and the Baron dieth there the Feme cannot devest the Frank-Tenement out of her by any verball waiver or disagreement in pais as if before any entry made by her she saith that she waiveth and altogether disagreeth to the said state and that she never will take or accept of it yet the Frank-tenement remaineth in her and she may enter when she pleaseth and waive it in Court of Record for the Law more respecteth Acts without words then words without Acts and therefore if she entreth and taketh the profits although she say nothing it is a good agreement in Law And so it is adjudged in Mich. 34 E. 1. Avowry 232. That if a man take a distress for one thing yet when he cometh in Court of Record he may make an Avowry for what thing he pleaseth a multo fortiori when a Frank-tenement is vested in him it cannot be devested by nude words in pais and with it accordeth 17 E 3. 6. 17. Where the Baron alieneth his lands and retaketh the estate to him and his wife in taile the Baron dieth the Lord of whom the land was holden by Knights-service supposing that the Baron died sole
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-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
that he had not white Acre by descent but had it by purchase for the relation to the descent was in vaine in that certainty appeared before ibidem vide Coke l. 3. Doughtys case f. 18. Oportet quod certae personae certae terrae certi status comprehendantur in declaratione usuum Coke l. 9. f. 9. a. Every declaration of uses upon Recoveries Fines c. of Lands Tenements and Hereditaments ought to be certaine for otherwise there shall be no certainty of inheritances and that certainty ought to be principally in three things in persons to whom in Lands c. of whom and in estate by whom uses shall be limited and declared and if certainty faile in any of them the declaration is insufficient Certa debet esse intentio narratio Bractton lib. 2. All declarations ought to be certaine so as the Defendant may know to what thing he ought to answer Ployd 84. a. As 3. E. 4. f. 21. A man retained in husbandry brings an action of debt against a Prioresse for his salary and declares that he was retained with her Predecessor and doth not shew what person retained him and by the better opinion the count shall abate for the incertainty for that it might be that one that had no Warrant retained him And so is it in a Writ Ployd ib. vi a. 22. E. 4. f. 47. It was granted by Parliament that Ashby should have a writ with Proclamations out of the Chancery against one Griffeth to answer for diverse Trespasses which were contained in the Act of Parliament and the Writ by award was abated because he made no mention of the Trespasses in certaine and there it varied from the Act but that was a private Act and therefore the non-recitall of it makes the Writ naught and so should the mis-recitall but the recitall of a generall act or the mis-recitall of a generall Act is not material but the Judges are bound to take notice of it without the monstrance of the party Oportet ut res certa deducatur in judicium Coke l. 5. f. 321. a. Playters Case P. brought an action of Trespasse against W. Quare clausum suum fregit pisces suos cepit without shewing the number or nature of the Fishes and it was resolved that the count should have comprehended the Fishes in certaine that the Defendant might have a certaine answer and upon which a certaine judgment might be given as 4. H. 6. n. the writ was quare piscem cepit and counts of so many Pikes in certaine and though the writ was piscem in the singular number yet good because per se est nomen collectivum in which the plurall number is comprehended and great inconvenience otherwise would ensue for unlesse the issue hath certainty with which the Jury may be charged upon such a generall incertainty if they give a false verdict they may be charged in attaint and f. 38. a. Teyes case In a fine the same thing was granted and surrendred to severall persons and of severall estates and so repugnant and erroneous for a fine is like unto a Judgment for a Scire facias lyes to execute it as of a Judgment and oportet as Bracton saith quod certa res deducatur in Judicium Ployd Manhells Case f. 10. b. If three issues bring three severall Formedonâ— he whose writ is first returned shall have the Land for by it he hath first attached the possession in the hands of the tenant and the writ is not of Record before the returne but if all the three Writs be returned on the same day they shall all abate because it is incertain by the count if the Tenant confesse the actions to whom they shall award seisin because all their titles are alike and all returned on the same day and for that incertainty the writs shall abate as 21. R. 2. Fit avowry p. l. 262. In a Replegiare against two the one avows for Damage-feasant and the other avows that he had common in the Land and tooke the beasts as a commoner Damage-feasant and by the award of the Court both the avowrie was abated and the Plaintiff recovered damages against them because every of them could not have the returne and who should be preferred and who rejected would be incertaine to the Court vide Ployd f. 84. a. b. Partridges case In some cases the count and the writ may be generall without certainty as in assizes but there the certainty must be shewen by the replication and in some cases the writ the count and the replication also may be incertaine but the certainty shall appeare by verdict As in a Quare impedit the value of the Church doth not appeare in the count nor in the replication but it shall appeare by verdict for they shal assess double damages or damages for halfe a yeare according to the value of the Church as the case requireth so in a writ of Ward the Jury shal find if the heir be married or not and shall assesse daâ—â—ges for it and yet in the count and replication no such matter appeareth So in a detinue the valew of the goods appeareth by verdict and in many other cases So as the certainty allwayes must appeare to the Court and if it be requisite to be shewen in the count then it ought not to be left out or omitted in the count as Ployd f. 85. a. In decies tantum he must shew the certainty of the sum received because he shall recover ten times more and that he cannot unlesse he shew how much it is And in Trespasse if the Defendant pleade that it is his Frank-tenement and the Plaintiff intitles himselfe by a lease for years made by him and if the Defendant will shew that he made a Feoffment and that he entered for the forfeiture he must shew the name of the Feoffees and certainty of the Feoffment for in all cases the privy ought to shew the certainty and in case of forfeiture the Lessor in the reversion is privy to it So if the heire will pleade in bar in a writ of Dower the detainer of evidences he must shew the certainty of the evidencies for he is privy to them in that he affirmeth that they appertaine to him but if he say a bag ensealed with Charters that is good without shewing the certainty of them 18. H. 8. f. 1. B. Dower And if one be bound in an obligation to serve I. S. for seven years in mandatis omnibus suis licitis he shal pretend that he did serve him lawfully without shewing in what service or in what commandement for no servant can remember all 20. E. 4.13 So a man may aver a thing to be done by Covin without shewing how the Covin was for Covin is a secret thing contrived between two or three to the prejudice of another 4. E. 6. 46. And a man may pleade that he was chosen Knight for the Shrie by the greatest number without shewing the number for the
amercement is pardoned vide ibidem The husband and wife make a lease by Deed the husband dyeth the wife accepteth the rent if the Lessee lose the Deed of the Lease the wife shall avoid it 15. E. 4. 17. Coke l. 1. f. 2. Buchuâ—sts case If the Feoffor make a Feoffment with warranty the Feoffee shall not have the Charters unlesse by expresse grant but the Feoffor shall have all the Charters and Evidences which are materiall for the maintenance of the title of the Land and upon which he may maintain his warranty paramount but if the warranty be determined he shall have them no longer Ployd f. 382. a. Nevills case The King grants to two for their lives and the life of the survivor of them the Sheriff-wike of Chester and one of them was attainted of high Treason all the Office was forfeited because the Office was entire and could not be severed ibidem The King granteth the Office of the keeper of a Parke to two and the one faileth in discharge of his duty the whole fee shall determine so it is if an annuity be granted to two for Counsell and one of them refuse because the Office and Grant is entire and cannot be severed and the cause ceasing but in one the whole annuity shall cease Exception Dyer 320. Pl. 13. An Arbitrement was between two of diverse things and among others there was one article that one party should have yearly for the space of six yeares twenty shillings toward the keeping and honest education of A. B. and A. B. dyeth before the fourth year of the sixth yeare yet the payment of the 20 s. shall not cease during the six years which is a certaine terme and is a duty to the party himselfe towards the finding of A. B. Dier 141. Pl. 44. King Ed. 6. granteth to the Lady Mary his Sister the Mannor of D. for terme of her life according to the Tenor and effect of the last Will of H. 8. which was that shee should have it so long as she was unmarried afterwards she granted a rent charge out of that Mannor after which grant K. E. dieth by whose death the reversion came to her being Queene and afterwards shee married Philip King c. and it was doubted whether the rent charge should remaine or no. Davis 3. a. b. In ancient times a great part of tenements were holden of their Lords by Socage which was that the Tenants ought to come with their sokes by certaine daies by the yeare to plow and sow the demesne of the Lords and because such workes were made for the livelyhood and sustenance of their Lords they were quitted of all other services and after such services were changed into monies by consent of the Lords though the Lords did alien their demesnes and had no lands to plow or sow yet payed they their rents yearely to the Lords so the Church and religious houses after the procuration of Victualls was reduced to a certaine sum did pay it to the Ordinary yearely though he made no visitation so as the rule The cause ceasing the effect also ceased held not in those cases So Coke l. 4. in Capels case it was resolved that where a man held certaine land by rent for Castle-guard though the Castle was ruined or decayed yet the rent remained and pro doth not import a condition as in the case of an annuity granted pro consilio impendendo but a full and perpetuall recompence and satisfaction Vide Davis plura ibidem In jure non remota sed proxima causa spectatur Bacon Max. f. 1. 2. In the Law the next and not the remote cause is respected For it were infinite for the law to judge of the cause of causes and therefore judgeth of acts by the immediate and next cause as Bar. Empsons case f. 2. An annuity is granted pro consitio seu impendendo and the grantee committeth treason whereby hee is imprisoned that the grantor cannot come unto him for counsell yet the annuity is not determined by this non fesans for the law looketh not on the remote cause to wit the grantors offence which was the cause of the imprisonment but excuseth it because his not giving of counsell was compulsory and not voluntary in regard of the imprisonment which was the immediate cause So if a parson maketh a Lease and be deprived or resigneth the successors shall avoid the Lease for the law regardeth not the cause of the deprivation or the resignation which is the act of the party but the act of the Ordinary in the admission of the new incumbent 2. H. 4. 3. 26. H. 8. 2. A foeffment in fee upon condition that the Feoffee shall enfeoff over and if the feoffee bee disseised and a dissent case and then the feoffee bindeth himselfe in a statute which statute is discharged before the recovery of the Land this is no breach of the condition because the land was never lyable to the statute and the possibility which was the remote cause that it should bee lyable upon the recovery the law doth not respect Coke l. 2. Winningtons case This rule faileth in covenous act where the law taketh heed to the corrupt beginning and also in criminall acts where the law principally regardeth the first motive vide ibidem plura Nihil magis consentaneum est us iisdem modis res dissolvatur quibus constituitur Reg. I.C. and Bracton Nihil tam conveniens est naturali aequitati unumquodque dissalvi eo ligamine quo ligatum est Cok. l. 2. f. 53. a. There is nothing more agreeing to naturall equity then that every thing should be dissolved by the same meanes it was bound As no estate can be vested in the King without matter of record so no estate can be devested out of him without matter of record Ployd f. 553. Walsinghams case and 180. Nevils case 12. H. 7. and many other bookes for nothing is so convenient to naturall equity then that every thing should be dissolved by the same band it was tied and Coke l. 4. f. 57. b. In case of attainder and office the King is entitled by double matter of record and therefore the party grieved ought to avoid it by double matter of record and not by single travers or Monstrans de droit but is driven to his petition vide ibidem plura But when a man avoideth the Kings title by as high a matter of record as the King claimeth though the King be entitled by double matter of Record he may have it by way of Plea as one is attainted of treason by Parliament an office findeth his lands by which the King seiseth them the party may alledge restitution by Parliament and a repeale of the former Act 4. H. 7. 7. b. Finch Nomot 12. Coke l. 5. f. 26. a. Indentures being made for declaring of the uses of a subsequent fine recovery or other assurance to certaine persons and within a certaine time and to certaine uses are but
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
give no stroke for the stroke of him that woundeth is the wounding of all the others in Law 4. H. 7. 18. Ployd 100. a. Facinus quos inquinat aequat An offence equalleth those are tainted with it If one receiveth the goods and not the felon he is accessory to the Felony if he knoweth the goods to be stolen If a man receive a man is attainted of Felony by Outlawry in the same County though he be ignorant of it yet is he accessory to the Felony because the Outlawry is a matter of Record of which every one ought to take notice A Servant procureth another to kill his Master this is no pety Treason in the Servant because it is but Felony in the other which is the principall 40. Ass Pl. 25. For things accessary are of the nature of the principall Principio dato sequantur câ—â—comitantia Reg. I. C. A Parson granteth an Annuity with a nomine poenae the Successor shall be charged with a nomin poenae due in his Predecessors life and not his Executors 7. H. 6. 190. The profits of the office of Filizer cannot be put in Execution upon a Recognizance or Statute because the office it selfe being an office of trust cannot 26. H. 1. Dyer 7. b. Tithe is not payable of Okes Ash and Elme usually lopped and topped though it be every seven or eight years for the brâ—nches are of the nature of the principall for which no tithes are to be paid if they be of twenty years standing according to the Statute of 5. E. 3 c. 3. Ployd f. 470. b. Molins Case Ployd 381. a. If one grant estovers to another to be burnt in such an house it is appurtenant to the house so if common be granted in such a place to one for his beasts levant and couchant in his Farme of Dale the common is appurtenant to it so as he who hath the house after by what title soever he cometh to it shall have the estovers and he that afterwards cometh to the Farme shall have the common and they shall not be severed unlesse by extinguishment vide ibidem plura 12. Eliz. 381. 5. H. 7. 7. 26. H. 8. 4. common Lord and Tenant by fealty and homage the Lord releaseth his fealty this is voide for fealty is incident to homage 7. E. 4. 11. Court-baron is incident to a Mannor Court of Pypowders to a Faire therefore one cannot grant the Mannor or Faire reserving those Courts 19 H. 8. Bro. Incidents Coke Com. f. 3 49. b. If a man be remitted to the principall he shall be remitted to the appendant and accessory as if Tenant in taile of a Mannor whereunto an advowson is appendant be disseised and the disseisor suffereth an usurpation if the disseisee enter into the mannor he is also remitted to the advowson vide ibidem plura Quod non valebit in principali in accessorio consequenti non valebit what doth not availe in the principall shall not availe in the consequent and accessory Coke l. 8. f. 78. b. As tenant in taile the Remainder in fee and the Tenant in taile suffereth a common Recovery The reason of the Bar for the estate of him in the Remainder who is an estranger to the Recovery is by consequence because a common Recovery barreth the Estate of Tenant in taile who is a party to the Recovery and by consequent all the Reversions and Remainders of common persons expectant upon it But when the Act of 34. H. 8. provides that no common Recovery had against Tenant in taile who is party to the Recovery shall not bar his Issues when the King is in Reversion by it it is included that the Act preserveth the reversion and remalnder in taile of the grant of the King for they cannot be barred but when the estate taile upon which they depend is barred for that which not availeth in the principall wil not availe in the accessory and consequent vide Ployd f. 38. c. b. The office of the King of Heralds was granted to Garter cum feodis proficuis ab antiquo etiam concessit illi 10 l. pro officio illo and the question was whether if the office be gone the Annuity was expired and it was affirmed by all the Justices that it was gone and is determinable by the office determined And Choke said that he was of Councell with one I. who had an Annuity granted unto him by the King in these words to I. Clerico coronae pro termino vitae and after he was discharged of the office and the opinion of all the Justices was that the Annuity was determined for it shall be intended that the Annuity was granted by reason of the office and so it appeareth in these cases that a fee though newly granted is annexed to the office and determinable with the office and shall continue with the office as an incident inseperable for the principall failing the accessory also faileth Agentes consentientes pari paena plectuntur Coke l. 5. f. 80. a. b. As Tenant for life the Remainder to his Son and Heire apparent in taile by Covin and agreement between him A. and B. maketh a Lease for years to A. who maketh a Feoffment in fee to B. to whom the Father Tenant for life releaseth with warranty and after the Father dyeth and the Warranty descended on the Son and it was resolved that the Warranty did not bar the Son for the Feoffment of the Lessee for years was a disseisin and that though the disseisin was to the Father himselfe who made the release yet in that the Father agreed and consented to the disseisin it shall not hinder but that the Warranty shall begin by disseisin vide ibidem Fitzherberts Case A. maimeth B. by the consent of C. An appeale lyeth against A. and C. and Damages equally against both 22. Ass Pl. 82. From the Post-praedicaments or as Keker-man from such termes as are series of the Predicaments and yet conduce to the fuller understanding of them AND first from the principle and then from the cause for every cause is a principle but e-every principle is not a cause as punctum is the beginning of a line but not the cause of the line As Aquinas in his Sam. part 1. q. 33. a. 1. Omnis causa est principium sed omne principium non est causa ut pater in divinis est principium filij sed non causa omnis causa importat diversitaem substantiae dependentiam unius ab altero sed nomine principij ordinem solum significamus and every cause imports a diversity of substance and a dependency of one thing from the other but by the name of the principle we signifie onely the order as the Father in the Deity is the principle or beginning of the Son but not the cause Cujus que rei potissima pars principium est Coke l. 10. f. 49. a. The beginning is the principall part upon which all others are founded quando
place and it is not materiall whether any person be there or not and if one place be as notorious as another the Lessor hath election to demand it at which he will and if the Lessor demand it at a place which is not notorious or at the back doore of the house and in pleading alledge a demand of the rent generally at the house the Lessee may traverse the demand and upon the evidence it shall be found for him for that it was a void demand Ibidem and Coke com 201. and 202. b. a. But if a rent be reserved upon the demise to be payable at a place out of the land he that shall take advantage for non-payment of the rent ought to demand the rent at the place where it is limitted to be paid and therefore the opinion in Kelwellies case Ployd f. 70. that he in the reversion may enter for the non payment of such rent without any demand made was utterly denied by the whole Court Ididem and Coke com 202. a. But if there be no place appointed where the rent is to be paid there the rent is to be tendred on the Land Coke 210. a. b. Because it issueth out of the Land but otherwise it is in such a case of a Feoffment or Mortgage for it is not sufficient for the feoffor to be upon the land there ready to pay the money to the feoffee at the day set but he must seek the feoffee if he be then in another place within the Realme of England and so it is if a man be bound in an obligation of twenty pound upon condition that he pay to the obligee at such a day 10. l. that then c. The obligor ought to seek the obligee if he be in England and at the day appointed tender the ten pound otherwise he shall forfeit the twenty pound Coke com ibidem and therefore as he adviseth it shall be good and a sure way upon such a feoffment or mortgage to appoint a speciall place where the money shall be paid and the more especiall it is the more better it is Coke com f. 211. b. And so is it also upon an obligation Ployd f. 71. a. and b. If the obligee be in his own house and the obligor come to him there and tender the mony he shall not be a trespassor for his comming there for in that by the taking of the obligation the obligee was assenting that the obligor should pay him the ten pound by necessity of reason he ought to be assenting to come to him to offer unto him the 10. l. for to come to his person precedeth the offer which he was assenting to therfore ex consequenti he shall not punish him for that thing to which himselfe was agreeing But if he had entred into the house of another man there he shall be a trespassor to the said man if the same man will take him so vide plura ibid. Kedwellies case Exception Though a common person in reversion cannot enter for non-payment of rent without demand yet if the King make such a Lease for yeares rendring rent with such a condition ut supra the King shall take advantage of the condition without any demand because the law which alwaies observeth decorum and conveniency appointeth the subject to attend upon his soveraigne and in such case to make the first act though it be in case of condition which trencheth upon the destruction of his estate But if the King granteth the reversion over his grantee shall not take advantage of the condition without demand for it is a personall prerogative annexed to the person of the King and not in respect of the nature and quality of the land Coke l. 4. f. 23. A So the King maketh a Lease for yeares rendring a rent payable at his receipt of Westminster and after the King granteth the reversion to another and his heires the grantee shall demand the rent on the Land and not at the Kings receipt at Westminster for though the law without expresse words doth appoint the Lessee in the Kings case to pay it at the Kings receipt yet in case of a subject the law appointeth the demand to be on the land Coke com f. 201. b. and Coke l. 4. f. 72. 73. Burroughs case vide ibidem plura Circumstantia loci est testis veritatis certitudinis Ployd 393. a. The place is materiall and is a circumstance and witnesse of truth and certainty As if a man will plead the Letters Patents of the King bearing date at Westminster and indeed they did beare date at another place it seemes in 38. H. 6. by Choke f. 34. by Littleton f. 36. and by Redsham Moile and Prisot f. 37. That for the variance of the place it failed and the Plea shall be adjudged against him So if the King give authority to one to arraigne one upon indictment taken against him at Dale in such a County when indeed the indictment was taken at another place in the same County he cannot arraigne him for the place declareth the certainty what indictment the King intended for it may be there were two indictments of the same matter and thing and the one of them taken in one Village the other in another and by it the expresment of the Village declared the certainty of it Dier 105. a. An outlawry was reversed because it was ad comitat Lancaster ibidem tent and did not say at Lancaster or such certain place to which ibidem might be referred Ployd f. 191. a. The place must be shewne by the Plaintiff where the things were done because the visne should come thence if the things be traversed as H. 6. E. 4. 11. Brooke lieu 55. The place ought to be shewn in the count in debt upon an obligation where the obligation was made and M. 39. H. 6. 32. Brook lieu 45. If an attornement be alledged the place ought to be pleaded where it was made and in such like things of effect that may be traversed the place ought to be shewne where the thing was done for the certainty of the triall and f. 149. b. the place ought to be shewne where the attornement was made if the attornement bee pleaded 15. H. 7. 24. Coke l. 6. f. 47. Dowdales case when the place is materiall as when it is parcell of the issue there the Jurors cannot find the point in issue in any other place for by especiall pleading the point in issue is restrained to a certaine place but when the place is named onely for conformity and necessity and when it is parcell of the issue as in the case of 10. Eliz. 271. in debt against the heire he pleaded rieâ— by descent generally in that case the Plaintiff cannot reply in such generall manner for then no triall can be had of it but in case for conformity and necessity of a triall he ought to name a certaine place as there he did in the Parish and
and a Law was that thereby there might be certainty of titles and a peaceable possession without contradiction and as a Civilian saith ut sit finis litium that there might be an end of suits and therefore were the Statutes of limitation made within which the demandant that bringeth the action must prove himselfe or some of his Ancestors to be seised and in antient time the limitation in a Writ of right was from the time of H. 1. after that by the Statute of Merton the limitation was from the time of Henry the second and by the Statute of Westminster the first the limitation was from the time of Richard the first but because that limitation of the writ of right was for so long time passed the limitation of a writ of right was changed by the Statute of 32. H. 8. and reduced to threescore years next before the Teste of the Writ and so of other actions Coke com f. 115. a. vide ibidem plura And afterwards another Act was made 21. Jacob. that for the avoiding of suits all writs of Formedon in Descender Formedon in Remainder and Formedon in Reverter for any Mannors c. shall be sued and taken within twenty years and that after the twenty years expired none such or any of their heires shall have any such writ and that no person that hath right or title of entry into any Mannors c. shall thereunto enter but within twenty years vide ibidem cap. 6. plura But it is to be observed that time of limitation is twofold first in writs that is by diverse acts of Parliament the second is to make a title of inheritance and that is as hath been said to pleade a prescription de tempore cujus contrarium memoria hominum non existit Coke com f. 14. 15. which is by the common Law And this also accordeth with the rule of Bracton Longa possessio sicut jus parit jus possidendi tollit actionem a vero domino l. 2. f. 52. Long possession as right begetteth a right and taketh away an action from the true Lord and owner And so in antient times if the disseisor had been long in possession the Disseisee could not have entred upon him neither could the Disseisee have entred upon the Feoffee of the Disseisor if he had continued a yeare and a day in quiet possession and though the Law be now changed yet at this day the Disseisor dying seised being an act in Law barreth the disseisee of his entrance upon the heire and for that many advantages follow the possession and tenant the law taketh away the entry of him that would not enter upon the Ancestor who is presumed to know his title and driveth him to his Action against the heire that may be ignorant thereof Coke com f. 237. b. And for the above said reason the law yieldeth diverse utilities and advantages to the possessor for it is better to be a possessor then to complaine of others who are possessors because it imposeth the burden of proving on the Plaintiff so as if he can prove nothing he which possesseth shall be acquitted neither can possession be avoided but by possession Ployd 137 b. As if I make a lease for years of the lands of my wife and die the lease is not void before entry made by the wife for possession must be avoided by possession and such possession must be gained by entry But if my father die and his land descend to me a Lease for yeares made before my entry is good because I have possession in law and none hath possession in deed but if a stranger abate a lease made by me after is void for the stranger hath possession indeed before my entry upon him Ployd ibid. If an Executor bring an Action of trespasse for goods taken out of his possession it is not needfull to shew the Testament but if hee not ever was possessed of them but doth demand the thing then hee ought to have shewn the testament Ployd f. 46. a. And regularly it holdeth true that when the naked right of Land is released to one that hath jus possessionis and the other by a meane title recovereth the land from him the right in possession shall draw the naked right with it and shall not leave a right in him to whom the release is made as if the heire of the disseisor being in by descent is disseised by A. and the disseisee release to A. now hath A. the meere right to the land but if the heire of the disseisor enter into the Land and regaineth possession that shall draw with it the meere right to the land and shall not regaine the possession onely and leave the meere right in A. but the recontinuance of the possession the meere right is therewith vested in the heire of the disseisor Coke com 266. a. If a woman possessed of a terme for yeares take an husband and the wife dieth though during the life of the wife the terme was not devested out of the wife yet by her death it is vested in the husband and it is given to him by Act in law because it is a thing in possession and not in Action Pl f. 192. b. In pari causa possessor potior haberi debet Reg. I. C. In aequali jure â—elior est conditio possidentis Coke l. 4. f. 90. a As the Lord who is allowed but three Chaplaines retaineth six by his letters testimoniall at one and the same time and all the six are prefeâ—red to six severall plurallities the three which are first promoted are warranted by the statutes and yet the retainer was not according to the statute for in aequali jure melior est conditio possidentis In equall right better is the condition of him who is in possession ibidem If a man purchaseth severall lands at one time which are holden of several Lords by Knights service and dieth the Lord who first seiseth the ward shall have him because they are in aequali jure and there is no priority betweene them which if there were the elder Lord shall have him Perk. f. 6. If ten Mannors be conveyed to two severall persons by one deed which of them happeneth to get the Deed first may detaine it Two Attorneys are retained conjunctim divisim joyntly and severally the plea of him that first pleadeth shall stand because they are in aequali jure to plead If there be two joynt-tenants and one of them taketh all the profits of the land or all the rent the other hath no remedy Coke l. 2. f. 68. a. So the release of all Actions personall by one barreth the other but otherwise it is if the personalty be mixed with the realty and if there be two joynt-tenants Lords and the tenant holdeth by Knights service and the tenant dieth his heire within age and one Lord seiseth the Ward and the other distraineth for the services he that first seiseth or distraineth shall bind the other And
so long as he hath no understanding Lastly he that by his own vicious act for a time depriveth himselfe of his memory and understanding as he is that is drunk Coke com 147. a. Coke l. 4. 124. b. And for the three first sorts of mad men the Law is that they shall not lose their lives for felony or murder because they want reason and understand not what they doe neither can the punishment of a mad man who is deprived of reason and understanding be an example to others And therefore as Ployd f. 19. a. If a man of non sanae memoriae kill another although he hath broken the words of the Law yet he hath not broken the Law because he had not any memory nor understanding but meere ignorance which cometh unto him by the hand of God and therefore it is called unvoluntary ignorance to which the Law imputeth the act done because no default iâ— in him and therefore he shall be excused in that he is ignorant by compulsion and such an act is called and termed ex ignorantia to wit in that involuntary ignorance is the cause and God provided a speciall remedy that he who doth such a thing by such ignorance shall not be punished for it as Deut. 19. if a laborer be at labor with an hatchet and the head of the hatchet flyeth off and killeth another that such a laborer shall not be put to death because he did it by un-voluntary ignorance but if a man breake the Law by un-voluntary ignorance there he shall not be excused As if at man be drunk and kill another this is Felony and he shall be hanged for it and yet he did this by ignorance for when he was drunk he had neither memory nor understanding but because that ignorance came unto him by his own act and folly and he might resist this ignorance he shall not be priviledged by it because he is voluntarius daemon Coke com f. 247. and as Aristotle saith is worthy of double punishment because he hath dâ—ubly offended to wit in being drunke to the ill example of others and also in doing of the act and this act is called and said to be done ignoranter to wit that he is the cause of his owne ignorance and so there is a diversity of a thing done ex ignorantia ignoranter Ployd ibidem And Coke com f. 247. a. Omne crimen ebrietatis incendit detegit and what hurt or ill soever he doth in his drunkennesse doth aggravate it and that as well in case touching his life his Lands his Goods or any other thing concerneth him Coke l. 4. f. 125. Also for the same reason non compos mentis cannot commit petit treason as if a wife non compos mentis slay her husband as appeareth 12. H. 3. Tit. forfeiture 33. But in some cases non compos mentis may commit high Treason as if he slay or offer to slay the King this is high Treason for the King is caput Reipub the head and safety of the Common-wealth and from the head good health is conveyed to all and for this cause their persons are so sacred that none ought to offer them violence but he shall be reus laesae majestatis guilty of high Treason Coke l. 4. f. 124. b. And likewise for the same reason many are the priviledges which the Law giveth to one who is not compos mentis and his heires as if an idiot or non compos mentis maketh a Feoffment in person and dyeth his heire within age he shall not be in ward and if he dyeth without heire the Land shall not eschcate but if he make a Feoffment by Letter of Attorny although the Feoffor can never avoid it yet as to others in judgment of Law the State was void and therefore in such case if the heir be within age he shall be in ward and if he dyeth without heires the Land shall escheate and that is the true reason of the bookes in 7. H. 4. 5. and 7. H. 4. 12. And so is there a great diversity between an estate made by the person of a mad man and by his Attorny Coke l. 4. 125. Also an idiot in an action brought against him shall appeare in proper person and he that can plead best for him shall be admitted 33. H. 6. 18. otherwise it is of him who becometh non compos mentis for he shall appeare by his guardian if he be within age and by an Attorny if be be of full age Coke ibidem f. 124. b. So if a man of non sanae memoria â—ath cause to enter into tenements and a descent is had in his life during the time he was of non sana memoriae and then dyeth his heire may enter upon him is in by descent Littleton and though Littleton there saith that the Ancestor who had the same title could not enter during his life yet in case of a bar of his right he may As if a man of non compos mentis be disseised and the disseisor levieth a fine in this case at the common Law though the yeare and the day be passed yet he that was non compos mentis shall not be bound by it but that he might well enter Coke l. 4. f. 125. vide ibidem plura But if an Idiot or a non compos mentis by accident or qui lucidis gaudet intervallis maketh a Feoffment in fee he shall in pleading never avoid it by saying that he was an Idiot c. at the time of the Feoffment because it is a maxime in the common Law that no man of full age shall be received in any Plea by the Law to disable himselfe contrary to the opinion of some that he may avoid his own act by Entry or Plea and others that he may avoid it by Writ and not by Plea and others as Fitzherbert in his Writ of dum fuit non compos mentis that he may avoid either by Plea or by Writ but Littleton here is of opinion that neither by Plea Writ or otherwise he himselfe shall avoid it and herewith the greatest authorities of ouâ— Books doe agree and so was it resolved in Beverlyes case Coke l. 4. Though this Maxime holdeth not in criminall causes as before hath been said Coke com f. 247. Yet doth not the Law leave one who is non compos mentis destitute of remedy in this case but that upon an office found for the King the King shall avoid the Feoffment of him who is of non compos mentis for the benefit of him whose custody the Law giveth to the King and all that he hath for the King is bound by the Lawes to defend his Subjects and their Goods and Chattells Lands and Tenements as Fitzherbert saith N. B. 232. and therefore the King of right ought to have and to order him his Lands and Goods and this was by the common Law as appeareth by Britton f. 16. who writ in the fifth yeare of
flyeth to the wall or to some other unpassable place to save his life and upon the pursuit of the other he killeth him this is man-slaughter in his own defence 3. E. 3.284 From morall Philosophy NExt in order succeeedeth morall Philosophy the exact knowledge of which as Picolonomy Inductio ad libros Civil Philos cap. 6. cannot be comprehended without the precognition of the naturall and therefore hath the precedency for the morall faculty doth instruct men to avoid vices and to cure the maladies of the mind which cannot be compleatly accomplished without the naturall contemplation of the affections of the soul it is called Ethica by the Phylosopher or institutions of manners by which the oblique manners of men are rectified and their Enormities regulated and certainly from such exorbitances of manners originally proceeded the institutions of Lawes and from whence as Doderidge all Laws are in generalty derived for in the primary age which may rather be named the Iron then the golden age when men lived like beasts Dod. English Lawyer f. 250. the one praying on the other according to the censure of the Philosophicall Poet. Quod praedae obtulerat fortuna cuique ferebat Sponte sibi quisque valere vivere doctus What fortune offered for a pray each one Layd claime to it learned to live alone And serve himselfe Then were Laws first excogitated to suppresse the barbarous Savageness of such humane beasts and to reduce them to a more civill association as the Venusine Poet rightly Jura inventa metu injusti fateare necesse est Tempora si fastosque velis evolvere mundi If we revolve the Annalls of mans time From the worlds birth we must confesse and find That Laws were founded for feare of the unjust Seeing then Laws were introduced from the depraved judgements and corrupt manners of men who will not acknowledge that the science by which they are formed and the principles deduced from it are requisite and materiall to the fundamentall knowledge of the Law From which Fountaine our Law doth draw these grounds and maximes Illud possumus quod jure possumus Reg. I.C. We can doe that which by right we can doe for as Boetius potentia non est nisi ad bonum ability and power is not but to good for the power to have liberty to doe wrong is not by such liberty augmented but diminished potentia injuriae est impotentia naturae the power to doe injury is the impotency of nature as to decay and dye is no power but in respect of the privation and diminution in the thing is rather impotency as the Angells and Saints confirmed in glory and cannot sin are more powerfull then man who through his impotency can sin So a King ruling royally and with whom whatsoever shall please him hath the power of a Law and may doe what evill he lift is more impotent then he that doth all according to the rule and square of Law and therefore doth the Law give this rule Illud Rex solum potest quod de jure potest Coke l. 3. 99. f. 123. l. 1. 11. f. 7. Solum Rex hoc non potest quod non potest injuste agere The King onely can doe that which by right he can doe and the King can onely not doe this that he cannot doe any thing unjustly as 4. E. 4. 15. the King can be no disseisor he can be no wrong doer so if the King granterh and releaseth the services to the tenant and his heires that shall not extinct the tenure in all for necessity of the tenure and the King cannot by his charter alter the Law and therefore it shall be expounded as neere to the intention of the King as may be and that is to extinguish all the services but it onely which is incident inseperably to every tenure and that is fealty for it the King cannot doe by Law Coke l. 9. f. 123. a. And Coke l. 11. f. 72. a. The King shall not be exempt by construction of Law out of the generall words of Acts made to suppresse wrong because he is the Fountaine of Justice and common right and the King being Gods Lievtenant cannot doe wrong and with it accordeth 13. E. 4. 8. in the case of Alton woods l. 1. f. 41. So Lands were given to Henry the seventh and the heires males of his body and the question was whether the King in regard that he was not expresly restrained by the Act of 13. E. 3. de donis conditionalibus post prolem masculam sussitatum might alien or no and it was adjudged he could not alien but was restrained by the said Act for it were an hard argument to grant that the Statute which restraineth men to doe wrong and evill shall permit liberty to the King to doe it Ployd f. 246. Signior Barklys case Coke ibidem vide plura Potestas regis juris est non in juriae cum sit author juris non debet inde injuriarum masci occasio unde jura mascuntur Bract. l. 2. The Kings power is of right and not injury and as he is the author of right there ought not from thence to arise occasion of injury from whence rights proceed As if one who intendeth to sell his Land and by fraude conveyed it by deed enrolled to the King to the intent to deceive the purchaser and then he selleth the Land to another for a valuable consideration maketh conveyance accordingly in this case the purchaser shal enjoy the land against the Queen by the Statute of 27. Eliz. c. 4. For though the Queen be not excepted yet the act being general made in suppressing of fraud shall bind the Queen So if tenant in tail be seised of Land the remainder over in tail or in fee and he in the remainder knowing that tenant in tail will alien the Land and by recovery bar his remainder to the intent to deprive the tenant in tail of his birth-right and power that the Law hath given him to bar the remainder and of intent and purpose to deceive the purchaser granteth his reversion to the Queen by deed enrolled and then tenant in tail for a valuable consideration alieneth the Land by common recovery and dyeth without issue the purchaser shall enjoy the Land against the Queene by the Statute of 27. Eliz. the words of which are that every conveyance c. made c. to the intent and of purpose to deceive a purchaser t. shal be deemed onely against such purchaser c. to be utterly void vide ibidem plura in Magdalen Colledges case l. 2. in Cholmlys case f. 51.52 And the King hath a prerogative above all his Subjects that where by fraude or salse suggestion he is deceived that he in that case shall avoid his owne grant jure regio 22. E. 3. 47. in the Earle of Kents case Stanf. pr. regis 84. a. As the King can neither doe himselfe injury nor others And
and his Heires shall not alien the bond is good yet he may notwithstanding alien if he will forfeit his bond that he himselfe hath made So a bond with condition that the Feoffee shall not take the profits is good so a bond upon condition to enfeoff his wife is good though it be against a maxime in Law Coke com f. 206. And if the husband be bound to pay his wife mony the bond is good Non valet impedimentum quod de jure non sertitur effectuum Reg. I. C. Coke l. 4. 31. a. The let or impediment availeth not which taketh not his effect from the Law as if the Lord be disseised and the disseisor dyeth seised or if the Land be recovered from him by verdict or erronious judgement in these cases untill the Land is recovered or the judgment annihilated by the Law the land is not demisable and yet after the land be re-continued it is grantable againe by copy but if copy-hold lands be forfeited to the Lord or escheate and before any new grant made those lands be extended upon a Statute or Recognisance acknowledged by the Lord or if the wife of the Lord in a writ of dower hath that land assigned to her though those impediments be acts in law yet for that that those interruptions are legall the lands shall never after be granted by copy ibidem The words of an Act of Parliament must be taken in a lawfull and rightfull sense as where by the Statute of Gloucester it is forbidden that the husband shal not alien the lands he hath in right of his wife whereof no fine is levied in the Kings court those words are to be understood where no fine is lawfully levied in the Kings Court and therefore a fine levied by the husband alone is not within the meaning of that Statute for that fine should worke a wrong to the wife but a fine levied by the husband and wife is intended by the Statute and that is lawfull and worketh no wrong for generally the rule is non praestat impedimentum quod de jure non sortitur effectum so the Statute of W. 2. c. 5. Ita quod episcopus ecclesiam conferat is construed ita quod episcopus ecclesiam legitime conferat Coke com f. 361. b. Nullam iniquam in jure praesumendum Coke l. 4. f. 71. No injurious thing is to be presumed in the law for the law so abhorreth injury that it granteth writs of anticipation to prevent them quia timet because a man feareth them and that before any molestation distresse or impleading and there are six sorts of such writs first a man may have his writ of Mesne before he be distrained 2. a Warrantia Cartae before he be impleaded 3. a Monstraverunt before any distresse or vexation 4. an Audita quereta before any execution sued 5. a Curia claudenda before any default of inclosure and is a ne Injuste vexes before any distresse or molestation Coke com f. 100. a. And such an Antipathy there is between the Law and injury that no injury is to be presumed in the law and as Coke l. 10 f. 56. a. Odiosa in honesta non sunt in lege praesumenda in facto quod se habet ad bonum ad malum magis de bono quam de malo praesumendum est odious and dishonest things are not presumed to be in the law and in a deed or action which hath in it both good and evil it ought to be more presumed of the good then of the evill as there in the case of the Chancellor of Oxford it was resolved that covin and fraud shall never be intended or presumed in the law unlesse it be expresly averred and in the case of Tier and Meriell Trin. 10. Jacob. That if no fraude be found by the Jurors the Judges shall not adjudge a Feoffment fraudulent and that though the Jurors have found circumstances and presumptions to intitle the Jurors to find fraude it is but evidence to the Jury and not any matter upon which the Court may adjudge fraude and the office of the Jurors is to adjudge upon the evidence concerning matter of fact and upon it to give their verdict and not to leave matter of evidence to the Court to judge which doth not appeare to them as if A. bring an action of the case against B. upon trover and conversion of Plate and Jewells and the Defendant pleadeth not guilty now it is good evidence to prove the conversion that the Plaintiff requested the Defendant to deliver them and he refused it and by it it shall be presumed that he hath converted them to his use yet notwithstanding that is but evidence and if it be found by a speciall verdict that the Plaintiff requested them of the Defendant and he refused it that is not matter upon which the Court can adjudge any conversion for the conversion ought to alter the action of detinue into a trespasse upon the case which a denier cannot in law make for in every action of Detinue there is alledged in the count a request and a refusall yet it is good evidence and hath allwayes been allowed to prove a conversion that the Plaintiff demanded the goods and the Defendant refused to deliver them Coke l. 10. In the case of the Chancellor of Oxford vide ibidem plura Nomen non sufficit si res non sit de jure aut de facto the name of a thing is not sufficient if the matter and substance be not of right or deed Coke l. 4. f. 107. b. Pope Vrbane at the request of Ralph Baron of Greystack founded a Colledge of a Master and six Preists resident at Greystock and assigned to every one of his Preists five markes by the year besides his Bed and Chamber and the Master forty pounds by the yeare and this certified in the Book of first fruits and tenths Rectoriam Collegium of Greystock and the said Colledge was in being five years before the Act of 1. E. 6. And it was resolved by all the Judges that such a reputative Colledge was not given to the King by the Act of 1. E. 6. because it had no lawfull beginning nor the countenance of a lawfull beginning for the Pope cannot found or incorporate a Colledge within this Realme nor to assigne or license others to assigne temporall livings to it for it ought to be done by the King and no other for the name doth suffice if the matter be not of right or deed Dier 81. Quando duo jura in una persona concurrunt aequum est ac si essent in diversis Reg. I. C. Ployd f. 368. a. when two rights concur meet together in one person it is all one as if they were in severall persons As if one hath an estate for the life of A. the remainder to him for the life of B. the remainder to him for the life of C. and he is disseised and the disseisor levieth
by discontinuance disseisin abatement c. and of this right is the saying to be understood that the right descendeth and not the Land which may be released to him in possession and this right is also called jus proprietatis as if a man be disseised of an Acre of Land the disseisee hath jus proprietatis and the Disseisor hath jus possessionis and if the Disseisee release to the Disseisor he hath jus proprietatis possessionis Coke com 266. a. but the reservation of a Rent upon such a release is voyd as if the disseisee release to the disseisor of Land reserving a rent the reservation is voyd Coke com 144. b. Neither can a bare right a right of entry or a thing in action be granted or transferred to a stranger by the ancient maxime of the Common Law Coke com f. 166. for that thereby is avoyded great oppression injury and injustice but if a bare right happen to be forfeited to the King he may grant the same by his Prerogative Frustra est potentia quae nunquam venit in actum Vaine is the possibility which never commeth into act Coke l. 2. f. 501. There is jus proprietatis possessionis possibilitatis and the right of possibility which dependeth upon the death of a man hath a necessary and common intendment to wit necessary in regard that all the issues of Adam must dye for statutum est omnibus hominibus semel mori and common because the death may happen at such a time that the contingency may take effect and this necessary and common possibility is called potentia propinqua which may come into act and is not therefore vaine or voyd in Law as in 15 H. 7. 10. If Lands be given to a marryed man and a marryed woman and to the heires of their two bodies ingendred this is a good estate in tail for it is of necessity that death shall ensue and in common possibility that one shall dye before the other so as the marryage may ensue but in the same case there shall not be possibility upon possibility and therefore if land be given to one man and two women there the Law shall not intend that first he shall marry one and then that shee that he shall marry shall dye and that he shall espouse the other and therefore in this case they have severall inheritances at the beginning as if Land be given to two barons and their femes and the heires of their bodies engendred in this case the Law shall not expect second marriages and therefore in this case they shall have joynt estates for life and one baron and feme one moyety in tail in common with the other baron and feme of the other moyety and so severall inheritances and with it accordeth 24. E. 3. 29. for otherwise there should be possibility upon possibility and if a man give Land to baron and feme there is an apparent possibility that they shall have issue but if after they be divorced causa praecontractus so as the possibility is dissolved the Law shall never expect the second marriage for by the divorce they have but an estate of Frank-tenement 4. H. 7. 16. 17. And a woman may enfeoff a married man causa matrimonij prae locuti for it is of necessity that death shall ensue and in common possibility that the Feme of the Feoffee shall dye before the Feoffee So in the common case of a lease for life the remainder to the right heires of I. S. the remainder is good for the necessary and common intendement vide ibidem plura in Lampets case Coke l. 10. f. 50. b. For the Law respecteth the right of possibility and will have nothing to be void that by possibility may be good As a mesnalty is given in tail reserving a rent this is good for the tenancy may escheate to the donee and then the doner shall distraine for all the arrearages 1. H. 4. 2. A man hath issue a daughter and leaveth his wife privement enseint the wife may detaine the Charters of her husbands Lands from the Daughter for the possibility it may be a Son shee goeth withall 41. E. 3. 21. b. But if A. be indebted to B. in two hundred pounds and delivereth goods to him to sell to pay his debt in the best manner he can and he is proferred two hundred pounds for them and refuseth and after selleth them for an hundred pounds A. shall answer the residue of the debt notwithstanding this possibility 18. E. 4. 5. But the possibility must be propinque and a common possibility as death or dying without issue or coverture or the like but if it be a remote possibility the Law doth judge it vaine because it shall not be intended by common intendement to happen as a remainder to a corporation which is not at the time of the limitation and remainder is void though such a corporation was after erected during the particular estate for that was potentia remota 9. H. 6. 24. For as Ployd f. 345. a. b. It is a principle in Law that all gifts be it by devise or otherwise they ought to have a donee in esse and not in posse who hath capacity to take them given when it ought to vest as devise of Lands in fee and so of goods if the devise dye before the devisor neither his Heire or Executor shall gaine any thing by this Will vide ibidem plura in Brets case So if a lease be made for life the remainder to the right heires of I. S. if at the limitation of the remainder there be not any such I. S. but during the life of tenant for life I. S. is borne and dyeth his heire shall never take as it is agreed in 2. H. 7. 13. And so in 11. E. 3. 46. the case was that upon a fine levied to R. he granted and rendred the tenements to one I. and F. his wife for their lives the remainder to G. the Son of I. in tail the remainder to the right heires of I. and at the time levied I. had not any son named G. but after he had issue named G. and in praecipe against F. it was adjudged that G. should not take the remainder in tail because he was not borne at the time of the fine levied but long after by which another who was right heire of I. S. was received for when I. had not any son named G. at the time of the fine levied the law doth not expect that he shal have a Son named G. after for that is potentia remota a remote possibility But if the remainder had been limited by a generall name as to the right heirs of I. or primogenito filio such a remainder might have been good for the common possibility But if a remainder be contrary to Law the Law shall never adjudge a grant good by reason of a possibility or expectation of a thing which is contrary to Law for that is potentia
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
enfeoffed him long before the judgment in fee absque hoc that he was seised at the time of the judgement or any time after whereupon issue was taken and the Jury found the Feoffment and further sayd That it was made by covin to defraud the Plaintiff and other Creditors and it was judged for the Plaintif vide ibidem plura and fol. 166. Fraus praesumitur si insolitae clausulae apponantur Reg. J. C. and Coke l. 3. f. 81. Clausulae insuetae semper inducunt suspicionem As there in Twins case A Deed of gift was in part adjudged fraudulent because an unusuall clause was inserted in it and for that the Deed contained that the gift was made honestly truely and bona fide vide ibidem plura Dona clandestina sunt semper suspiciosa Coke l. 3. f. 81. Gifts in secret are alwayes subject to the suspition of fraud which there in Twins Case was one of the reasons alledged to prove a Deed of gift fraudulent to wit that it was made in secret And so in Burrels case l. 6. f. 72. the assignment of a Lease was taken to be fraudulent because it was delivered in a secret manner to a person of meane quality And for the same reason by livery and seisin in one County the Lands in another County will not passe Noys Max f. 3. Jus fraus nunquam cohabitant simul Coke l. 10 f. 49. a. Right and fraud never cohabit or dwell together As a Recovery cannot be sayd to be by collusion where tenant in taile is in the Recovery whether he be tenant in Deed or tenant in Law as a Vouchee For the Law hath made all the reversions and remainders as incidents to his estate subject to his pleasure and he hath right and power to bar them all ibidem And Coke l. 8 f 132 b. Covin cannot be alledged in doing of a lawfull act As in a Writ of Dower against a disseisor if the Tenant plead in abatement of the Writ entry by the disseisee the demandant shall not be received to aver the entry to be by covin to abate the writ because the entry is congeable and lawfull and mixed with no wrong as it is holden in 15. E. 4. f. 4. and if a disseisor or an abator endow a feme who hath title of dower it is good because it is a lawfull act Coke l. 5. f. 30. b. Fraus meretur fraudem Ployd f. 100. and the Poet Fraus est concessa repellere fraudâ—m Fraud and subtilty deserveth fraud and subtilty and it is a lawfull deceit to repell a deceit As in 19 E. 4. f. 27. In appeale of many who pleaded not guilty a Venire facias was awarded against them all and the Court perceiving that the prisoners were in opinion to sever in the challenge of the whole pannell of subtilty to stay the tryall at that time and that every prisoner would challenge as many as they might without danger to wit twenty and that every of them shall have his entire number of twenty so that one shall not be excluded of his number by the challenge of the other and that there was but a small number of men of sufficiency then in the City to be sworne so as by that subtilty the tryall should be stayed for the present The Court agreed that the first pannell and the Tales should be divided and made severall for every one of the prisoners And accordingly said to the prisoners We perceive your subtilty well enough which deserveth little favour of the Court and therefore tell us whether you will agree in your challenges for if you will not the Clarke shall sever the pannell and then they all agreed in their challenges and after the inquest was full evidence was given and there found and one subtilty prevented and repelled by another And this fraud by the Canonists is called Benus dolus of which they have this rule Frangenti fidem fides frangetur eidem To him who breaks his faith no faith is to be shewne And instance in the example of Salomon who did use such cunning betweene the two Harlots in searching out who was the true and naturall Mother of the childe Fulb. 2. l. f. 23. Vendens eandem rem duobus falsarius est Reg. I.C. Coke l. 1. f. 45. a. A man selling the same thing to two is a falfe dealer and therefore in the grant of the King it is dishonourable for him to grant the same possession to one that he or his Progenitors had granted to another for he that selleth the same thing to two persons is a deceiver Fraudis interpretatio non semper ex mente duntaxat sed ex consilio quoque desideratur Reg. I. C. Dolus circuitu non tollitur Coke l. 11. f. 74. a. nec purgatur Bacon Max. f. 3. The interpretation of fraude is not allwayes to be gathered out of the mind but also from the councell and consent and crafty dealing and deceite is not taken away nor purged by the circuity of shifting it from one to another and though covenous acts be conveyed through many hands and mediations yet the Law taketh hold of the corrupt beginning and proceeding As if I make a Feoffment of Lands held in Knights service to I. S. upon condition that within a certaine time he shall enfeoff I.D. which Feoffment of I. D. shall be to the use of the wife of the first feoffor for her joynture c. this Feoffment is within the Statute of 32. H. 8. Bacon ibidem So if one who hath an intention to sell his Land by fraud conveyeth it by deed enrolled to the Queen with an intent to deceive the purchasor and after selleth that Land to another for a valuable consideration and maketh a conveyance accordingly in this case the purchasor shall enjoy the Land against the Queene by the Statute of 27. Eliz. c. 4. For though the Queene be not excepted yet the act being generall and made for the suppression of fraud shâ—ll bind the Queen and whosoever maketh the Queen who is the Fountaine of Justice to be an Instrument of covin and fraud and upon it obtaineth Letters Patents such Letters Patents are void or if the Queen be indeavored to take away another mans right and to that end a man obtaineth Letters Patents they shall be repealed though such covin and fraud be not contained in the grant made to the Queen but appeareth onely by averrement dehors for fraud and deceite is not taken away or diminished by the subtility of alienations Coke ibidem in Magdalens Colledge case Non facies malum ut inde fiat bonum it is the Law of God thou shall not doe evill that good may come thereof Coke l. 5. f. 30. b. lib. 11. f 7. 4 a. What hath been said of truth and falsity may be said of good and evill and are so semblable that an apparent good is often mistaken for that which is reall Jun. s 14. Fallit enim vitium
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
of the Law when one thing is provided for in the words that every other thing in the like kind shall be provided for in the same words And so when the words of a Statute enact one thing they enact all other things which are in the semblable degree As whereas the Statute of 9 E. 3. c 31. ordaineth that in an Action of Debt against Executors he that commeth in by distresse shall answer the said Act shall be extended by equity to Administrators for whosoever of them commeth in first by distress shall answer by the equity of the said Act because they are in the like degree So the Statute of 4 H. 4. c. 8. giveth an especiall Assise to him who is disseised and ousted of his land by force against the Disseisor and it is enacted that he shall recover against him double damages And so it is in an Assise of Nusance to turn the course of the water from the Mills of the Plaintiff with force it was adjudged that he should recover double damages and yet he was not put out of his land neither was there a disseisin but the Nusance was to the damage of his Frank-tenement and so by the equity of the said act the Plaintiff recovered double damages because the Nusance was in the like kind So the Statute of Gleucester giveth an Action of Wast c. against him who holdeth for life or for yeares and by the equity of it a man shall have an action of Wast against him who holdeth for a yeare or for twenty weeks and yet it is out of the words of the act because it is in the like degree and the cases which are of such degree in our Law are infinite Ployd f. 165. a. And there is another sort of equity which abridgeth and taketh from the letter and is a correction of the generall words Ethie 30. l. 10. and is defined by Aristotle to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a correction of a Law wherein it is any way wanting because of the generality of it which also in our Law is of much use As when an act of Parliament is made that whosoever shall do such an act shall be a Felon and be put to death and yet a man non sarae memoriae or an Infant of tender age who hath no discretion doth it they shall not be Felons c. or if a Statute be made that all persons who shall receive or give meat or drink or other aid to one who shall do a felonious act shall be accessory to the Offence and be put to death yet if one doth such an act and commeth to his wife who knowing it receiveth him and giveth meat and drink unto him she shall not be accessory nor Felon for in the generality of the said words of the Law he of non sanae memoriae nor Infant nor a Wife shall not be included and so equity correcteth the generality of the Law in those cases and the words generall are by equity abridged so the Statute of Champerty W. 2. l. 49. Arti. super Chart. contra probatos men generally do receive Lands and Tenements while the thing is in plea yet M. 16. R. 2. accord it was said by the whole Court in a Writ of Champerty that if I bargaine any lands before any Writ brought and after the Writ purchased I deliver Seisin That the Writ of Champerty doth not lye because it shall not be intended that the Bargain was made for such cause and that by equity for when he bargained and promised the land upon just consideration before any action brought against him it was his act to perform it notwithstanding the action And Costle promoter of the King brought an action of Extortion H. 21. H. 7. 16. against an under-Sheriff grounded upon the Statute of 23 H. 6. c. 10. which ordaineth that neither the Sheriff Goaler or Ministers nor any of them by colour of their Office shall take any thing profit c. of any person for fine fee or ease of prison but for the Sheriff 20 d. the Bayliff 4 d. and the Goaler 4 d. supposing that he had taken 20 d. above the same limited upon the Statute and upon demurrer it appeared upon evidence to the Court that all under Sherifs of the same county have used from the time whereof memory doth not run to have of every prisoner in their ward for suspition of Felony when they are acquitted twenty pence called the Bar fee and the twenty pence supposed to be taken were taken from the person named in the count being acquitted for a Bar-fee and the opinion of the whole Court was that it was out of the raise of the Statute though it was within the words of the Statute for that the sum of a Bar-fee was assigned to the Sheriff at the beginning by the order and discretion of the Court in respect of his labour and charge he had with the prisoners and for his attendance and for his ministry when the prisoners are brought to their delivery and so that payment was with reason and good conscience which the intent of the makers of the act was not to take away and so equity did put an exception to the generality of that text of the Statute Law So the Statute of W. 2. c. 4. ordaineth that where a man rat or dog escapeth alive out of a Ship neither the Ship nor any thing that is within it shall be adjudged wrack but all the things shall be saved and kept by the view of the Sheriff c. in the hands of those of the Towne where the things were found so that if any one can prove that they are his within a yeare and a day they shall be restored to him and whosoever doth otherwise shall be awarded to prison and remaine at the will of the King and render damages yet if the goods within the Ship be such things as will not endure for a yeare and a day the Sheriff may sell them and deliver the mony taken for them to the Towne to answer for it and that by equity though it be against the words of the said Act. So the Act of 2. E. 6. c. 14. Which giveth to the King all Lands and Tenements by any assurance conveyance given assigned or limited to find any preacher to have continuance for ever c. if the words of that act should be taken generally they give to the King al the houses and glebe Lands of all Parsons and Vicars but equity putteth in that text the exception of Parsonages and Vicarages because it was not the intention of the makers of that Act Ployd f. 466. vide ibidem plura There is another excellent use of equity which consisteth in guiding the grounds and maxims of of things which seem to crosse and thwart one another for as Sir John Doderidge English Lawyer f. 209. it is scarcely possible to make any second rule of Law but that it shall faile in some particular
consisteth in idlenesse for idlenesse is the mother of all vices and as Coke there saith principally in young men who ought in their youth to learne profitable sciences and trades which are profitable to the weale publick of which they may reape the fruites in their old age for jeunesse oisense vilesse disettense if in our youth we be idle in our old age we shall be indigent and for that reason the common Law detesteth all Monopolies which prohibit any one to work in any Lawfull trade and that appeareth in 2. H. 5. b. A Dyer was bound that he shall not use his Diers craft for two yeares and there Hull said that the obligation was against the common Law and that by God if the Plaintiff were here he should goe to prison untill he had made fine to the King and so for the same cause if an husbandman be bound that he shall not till and sow the ground the obligation is against the common Law And therefore the act of 5. Eliz. c. 4. that prohibited any person to use or exercise any craft mistery or occupation unlesse he had been an Apprentice for seven yeares doth not make provision onely to the intent that the artificers may be skilfull but that young men shall not be idle in their youth but trained and brought up in lawfull sciences and trades and so by the same reason the common Law doth not prohibit any person to use many Arts and Misteries at his pleasure for nemo prohibitur plures negotiationes sive Artes exercere untill it was prohibited by the Act of Parliament 37. E. 3. 6. That all Artificers c. are bound every one to one mistery and that none use other mistery but that he hath chosen but because that restraint of free trade was prejudiciall to the weale publick at the next Parliament it was enacted that all people should be so free as they were before that Ordinance by which it appeareth that without Act of Parliament no man can be in any manner restrained to worke in any lawfull trade Non negligentibus sed impotentibus succurrendum Reg. I. C. Vigilantibus non dormientibus jura subveniant Ployd f. 357. b. The Law helpeth and releiveth those are impotent not those are negligent As if you disseise me of my Land and then A. bringeth a Writ of right against you and you joyn the mise upon the meer right and you make default after the mise joyned he shall recover to him and his Heires for ever quit of you and your Heires for ever and if I doe not lay my claime within a yeare a day I am barred for ever for the Law succoureth those that are watchfull and not sleepy so as non-claime by a yeare and a day upon a recovery by default where finall judgement is given was a good Bar by the common Law 5. E. 3.222 by Hor. A descent cast during the Coverture where the wife is disseised barreth her not of her entry after her husbands death but if a feme-sole be disseised and then taketh an husband there a descent during the coverture taketh away her entry for it was her folly to take such an husband that entred not in time Littleton 95. Negligentia semper habet comitem infortunium Coke l. 8. f. 133. a. Sa. Turnors case An Executor of an Administrator ought to execute his office and administereth the goods of the dead lawfully truly and diligently Lawfully in the payment of all dueties debts and legacies in such precedency and order as they ought to be paid by the Law truly to convert nothing to his own use and ought not by any practise or devise to bar or hinder any creditor of his debt but ought truly to execute his office according to the trust reposed in him And diligently as in the case at bar for when the Administrators which had judgement for one hundred pounds for sixty pounds and the Plaintiff offered a release or to acknowledge satisfaction and he deferreth it to the intent that the Judgement shall stand in force by which the Plaintiff shall be defrauded of his due debt and the Administrators to convert the goods of the debt to their private use let the agreement be precedent before the recovery or subsequent since the recovery it is all one as to the creditor who is a third person for he is defrauded as well by the one as the other and the creditor who is a stranger shall loose his debt which is by the Law due to him and if any prejudice accreweth to the Administrators in this case it is in his own default for the Plaintiff would have released to them or acknowledged satisfaction but they defer it to the intent to bar the Plaintiff of his just and true debt and negligence hath allwayes misfortune or ill luck for her companion Ibidem Coke l. 2. f. 26. b. If a creditor upon a commission upon a Statute of Bankrupt either by obstinacy doe refuse or by carelessnesse neglect to come before the Commissioners within the time limited and to crave the benefit of the Act he looseth the benefit thereof for the Law releiveth those which are vigilant and not dormant for otherwise a debt may be concealed or a creditor may absent himselfe and void the proceedings of the Commissioners and every creditor ought to take notice of the commission it being a matter of record Coke l. 4. f. 10. b. in Bevills case it was said that the Act of 32. H. 8. c. 2. by expresse words extendeth onely to actuall possession and seisin and not to releive those which for so long time had neglected to have actuall seisin of their services and namely of suite which ought to be made twice every yeare and it was said that it was crassa supina negligentia which that Law did not intend to releive for as it is commonly said vigilantibus c. Ibidem Coke l. 4. f. 82. b. in Sir Andrew Corbets case who deviseth Lands to R. C. and others to have and to hold to them and the survivor of them untill such time that the summ of eight hundred pounds c. was received out of the issues rents c. for the preferment of his Daughters it was resolved though the Devisee had notice of the devise yet if a stranger had occupied the Land the Devisee ought to take notice at his perill for vigilantibus c. and none by the Law in such case is bound to give him notice as in the case of arbitrement 1. H. 7.5.8 E. 4.1 ibidem And this is the reason of a lapse incurring for want of presentment or of a warranty barring for lack of entry or of descents barring for want of claime and a title to tenant in courtesy is lost for lack of entry and that Statutes of limitation do bar actions One seised of Lands devisable deviseth that his Executors shall sell his Land and distribute the profits for the use of the poore and dyeth If a
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
Statute allwayes been expounded that they who were ignorant of the first retainer should not run into any penalty of the Statute So whosoever retaineth one is a ward to another not knowing that he is ward also if homage be due and the tenant after maketh a Feoffment and the Lord not knowing of the Feoffment distraineth for the homage his ignorance shall excuse him of his damages in a replevin though he cannot avow for the homage but if he had known the Feoffment he should have yeelded damages ibidem If a resignation be made by an imcumbent to a Bishop the Bishop is bound to give the Patron notice or otherwise he shall not have the advantage of the lapse and if the same Bishop dye his Successor shall be bound in the same manner although the resignation was not made to him for he shall have advantage by reason of the avoidance of the said resignation then he is bound to do that thing his successor should do upon the pain of a Quare Impedit for it is intended that the books of resignation to the successor remain with him Calloway 18 H. 7. f. 49. f. by Frowick If a Patron who is a Lay-man present his Clark to the Ordinary and he is not well lettered it is lawfull for the Ordinary to refuse him and of it to give notice to the Patron for to present another before there shall be a collation by Lapse because the Patron could not have Cognisance whether he be a Clark or no but if a Patron be a spirituall man and present one not well lettered and the Ordinary refuse him he shall not give notice of it to the Patron because it is intended that a Clark may have Conusance of the sufficiency of another before he presentted him to the Bishop ibidem by Frowick So when a man doth an act as to enter into Land seise goods take a distresse or such other he must by the Law see at his perill that it be lawfully done Doctor and Student ibidem As if a Servant cometh with his masters horse to Towne where by custome goods may be attached for debt and upon a Plaint against the servant an officer of the Towne attached the masters horse thinking it to be the Servants that ignorance excuseth not ibidem So if the Sheriff by a replevin deliver other beasts then were distrained though the party that distrained shew him they were the same beasts yet an action of Trespasse lyeth against him for he shall be compelled by Law as all Officers commonly be to execute the Kings Writ at his perill according to the tenor of it and to see that the act that he doth be lawfully done ibidem But some say if upon a Summons in a praecipe quod reddat the Sheriff by information of the Detendant summoneth the tenant in another mans Land thinking it to be the tenants Land there he shall be excused for he doth not seise Land but onely summoneth the tenant on the Land and that upon the information of the Demandant and though he be ignorant that that is the Land yet that sufficeth to the Sheriff as to his entry for the summoning as they say though it be not the tenants Land Ibidem SECT VII From the Politicks THe last Fountaine from whence the law deriveth grounds is the politicall Science which of all therof as Plato is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Ar. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Queen and Regent for shee prescribeth certain Laws by which they may be soundly taught and gloriously published and graciously ministreth to them her protection and shee is the Lady and Mistresse of all humane actions for though other Sciences and especially the Ethicall instructeth men how to live well and happily yet many Egregious Philosophers which professe the protection of that Art and Science are observed to live loosely and vitiously and as Cicero alios esse pecunia Cupidos gloriae non nullos multos libidinum servos some to be coveteous of Gold others ambitious of glory and many to serve their lusts so as if they were not restrained by the Scepter of this Science by which Magistrates and Laws are ordained to curbe those who will not be adduced for the love of virtue to doe that which is right and just and formidine paenae for feare of punishment to fright and force them into 〈◊〉 more vertuous and civill manner of living 〈◊〉 magisterio as Camerarius fully vita communis 〈◊〉 ur constituitur jure legibus ut societates hoâ— num quae res publicae vocantur in terris conserventuâ— â—nâ— by whose magisteriall rule the lives of all men are so ordered and disposed by right and Lawes that the societies of men which are called republicks may be preserved on the earth Without doubt therefore many principall and royall grounds of the Law must spring and grow from this soveraign Science from which the Law receiveth its constitution and confirmation as the grounds ensuing will manifest Salus populi prima lex esta Lâ—x 12. tabularum and Coke l. 11. f. 113. b. Salus populi suprema est lex the health and welfare of the people is the prime and cheifest Law that is the prime and principall scope to which all our actions ought to tend is the publick good of the people and Common-weale and therefore doth our Law favour things for the Common-weale and as Dyer f. 36. Pl 40. In cases which sound for the good of the Common-weale a man may justify the doing of a wrong As in time of War a man may justifie the raising of Bulwarks in another mans soile and so may he justifie the raising of an house that burneth â—â—r the safeguard of the houses of the Neighbors So if the Sheriff pursue a Felon to an house and for to have the Felon he breaketh the door of the house he may justifie it because it is for the Common-weale that such Felons should be taken but it is otherwise in particular cases as if the Sheriff break the house to arrest one in the house by vertue of a Capias in debt or trespass he shall be punished for that was a particular case and not for the good of the Common If the Lessor have Villains and one or divers of them commit felony and that the Lessee pursueth them as Felons by which he exileth them of the Mannor he is not punishable in wast but if the Villains slander him for which he doth them exile it is punishable by Knighâ—ly Fisher-men may justifie their comming upon land adjoyning to the Sea to dry their Nets though it be anothers ground for fishing is for the Common-weale and sustenance of all the Realm 8 E. 4. 18. b. and upon this reason the Civilians say Si piscator ligat navem ad arborem dominus eam incidere non potest If a Fisher-man tyeth his Ship to a tree the Master of that soil cannot cut the tree And for this reason the King before the Statute
sub eo ipse sub nullo nisi tantum sub Deo Bract. l. 1. c. 8. The King is the Vicar and Minister of God upon earth every one is under him and he under none but onely under God and therefore the Lands which are in the Kings possession are free from tenure for a tenant is he which holdeth of some superior Lord by some service so as the King cannot be a tenant because he hath no superior but God for as Coke l. 8 f. 118. It would be against common right and reason that the King should hold of any or doe service to any of his Subjects and therefore all Lands holden of him mediately or immediately Co. com f. 1. and for which reason Cowell thought it not so proper in the Kings case to say that he is seised in dominico suo ut de feodo as if feodum in our Law was taken as it is in the fendall Law onely for the Lands held in Services whereas feodum as Bracton Britton Fleta and Littleton tels us idem est quod haereditas Davis case of Tenures f. 30. Neither can the King be a Joynt-tenant with any though it be of land or other things that he had in his body naturall for none can be equall with him And therefore if two purchase lands to them and their heirs and one be made King they are no more Joynt-tenants but Tenants in Common 3 Eliz 339. Nay Acts of Parliament do not bind him unless they concern the Common-wealth or he be specially named 4. E. 4 21. 1 Eliz. 223. And no man can declare against the King but he must sue by way of Petition Ployd f. 241. b. 18 Eliz 498. He hath the property of all Goods that are nullius in bonis and shall have all Tythes out of Forrests and places out of any Parish for rex est persona mixta cum sacerdote In a Writ of Error upon false Judgment given for the King no Scire facias shall go forth ad audiendum errores for the King is alwaies in Court and that is the cause that the form of Entry is in all Suits for the King in the name of his Attorney generall F.N.B. 21. b. Rex semper praesumitur attendere ardua negotia regni pro publico bono omnium Coke l. 5. f. 56. a. It is alwaies presumed that the King doth attend the weighty and hard things of the Kingdome for the publick good of all And therefore have the Grants of the King a more beneficiall interpretation then the Grants of the Subject that may attend their private Affaires which are alwaies taken more strongly against them As if the King do grant lands to I.S. and his Heirs and in truth I. S. is the Kings Villain that shall not enfranchise the Villain by Implication The same Law is of an Alien born 17. E. 3. 39. The Advowson of Pravondry holden of the King was aliened to an Abbot and his Successors and that the Successors shall hold the Provandry to their own use The King shall seise the Advowson for Alienation in Mortmain and destroy the Appropriation for he shall not be ousted of his right of Advowson by Implication So 2 R. 2. 4. If two be indebted to the King and the King release to one it shall not discharge the other for no prejudice shall accrue to the King by construction or implication upon his Grant more then he truly intended by it ibidem So if a release be made by him of all demands the right of Inheritance shall not be released 6 H. 7. 15. If the King granteth lands in fee upon condition that they do not alien it is good but in all these cases it is otherwise in the case of a common person And in many cases the King who claimeth by a Subject shall be in a better case in respect of the Prerogative incident to his Royall person then the Subject himself by whom he claimeth As if the King have a Rent-seck by Attainder of Treason or by Grant he shall distrain for it not onely in the land charged but also in all his other lands and yet the Subject by whom he claimeth shall not distrain If a Subject have Recognizance or an Obligation and after is outlawed or attainted the King shall seise all the land of the Conusor or Obligor where he himself can have but the Moyety the King shall take advantage of a Condition broken without demand whereas a common person who claimeth under the King cannot re-enter for non payment of Rent without demand made And if the King purchaseth a Lordship of which land is holden by posteriority the King shall have the priority vide ibidem plura in Knights case Davis f. 45. If a common person grant rent or any other thing which lieth in grant onely without limitation of any estate by the delivery of the deed only a Frank-tenement shall passe 17 E. 3. 43. a. If the King grant rent or land without the limitation of any estate the Grant is meerly void for the incertainty 7 Ass pl. 1. and the Grantee shall not be Tenant at Will as it is ruled in the case of Alton Wood. Ployd f. 243. The Grant of the King is taken more strongly against a stranger and more favourable to the King although the thing granted come to the King by purchase or descent Whereas it is otherwise of a common person As a grant of a Mannor by the King the Advowson shall not passe without speciall words So the King may grant a thing in action which another cannot So if the part of an entire thing commeth to the King the Common Law hath given him all As if an Obligation be made to two and one is outlawed the King shall have all the duty So he shall have an entire Horse or Oxe which one who is outlawed holdeth in Common ibidem So Coke l. 9. f. 129. b. Quando jus domini regis subditi in simul concurrunt jus regis preferri debet when the right of the King and the Subject concur and meet together the right of the King ought to be preferred as in Dame Hales case Baron and Feme Joynt tenants of a term for years the Baron is felo de se the Baron shall forfeit all Ployd Com. 262. vide ibidem plura in Quicks case The King may mend his Declaration that term that it is put in p. 13 E. 48. So the King may wave his Demurrer and traverse the plea of another M. 28 H. 6. f. 2. So if the King grant lands in fee with Warranty against all the Patentee shall not have value in recovery without express words to have value So the King may make a Lease to a stranger this reservation is good and the stranger shall distrain for it or have an action of debt after the Lease determined M. 35. H. 6. f. 36. Ployd f. 243. a. So for arrearages of Rent-charge granted to the King he may distrain in all other
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.
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.
in ignorance or mistaking either of the Law or of the Case and matter of fact according to the rule de fide officio judicis non recipitur quaestio Bac. Max. f. 62. sed de scientia sive error sit juris sive facti there is no question to be made of the office and faith of a Iudge but of his knowledge whether it be error in Law or fact as if I will assigne for error that whereas the verdict passed for me the Court received it contrary and so gave Iudgement against me this shall not be received F. N. B. f. 21. So if I will alledge that whereas I. S. offered to pleade a sufficient bar the Court refused it and drave me from it this error shall not be allowed 3. H. 6. 3. If an appeale of maihme be brought and the Court by the assistance of the Chyrurgions adjudge it to be a maihme the party cannot bring a Writ of Error 1. Mar. 5. If a woman bring a Writ of Dower and the tenant pleadeth her husband was alive this shall be tryed by proofes and not by Iury and upon Iudgement given on either side no Error lyeth 8. H. 6. 23. If nul til Record be pleaded which is to be tryed by inspection of the Record upon Iudgement no Error lyeth 5 E. 4. 3. So if upon Iudgement given upon confession for default and the Court doe assesse damages the Defendant shall never bring a Writ though the damages be outragious F. N. B. 23. And the reasons of these cales are that the Law will not have the Iudges called in quostion in the point of their office when they undertake to discusse the issue and to examine againe what the Court had tryed were to attaint the Court yet there may be question of the Error in Law or the Error in Fact and Errors in Law and Errors in Fact or ever of such matters as were not crossed by the Record as to alledge the death of the tenant at the time of the Iudgement given and nothing appeareth on Record to the contrary so when an infant levieth a fine and it appeareth not upon Record that he is an infant then it is error in fact and shall be tryed by inspection during nonage F. N. B. 21. And you shall never alledge an error in fact contrary to the Record as if a man will assigne for error that whereas the Iudges gave judgement for him the Clerks entred it in the Roll against him this error shall not be allowed and yet it doth not touch the Iudges but the Clerks but the reason is if it be an error it is an error in fact vide Ba. Max. f. 65. Novum judicium non dat jus novum sed declarat antiqum quia judicium est quasi jurisdictum per judicium jus est noviter revelatum quod diu fuit velatum Coke l. 10. f. 42. a. A new judgement doth not give or make a new Law for judgement is the voice of the Law and by judgement the Law is newly revealed that hath long been covered as that though it seemed to be a new opinion that tenant in taile cannot be restrained from suffering a common recovery yet it appeareth by the ancient Books and Litt. also that it is not of late invention and it is true the Law sometime sleepeth but judgement it awaketh and certainely these perpetuities were born under an unfortunate constellation for in so greate a number of suits concerning them in all the Courts of Westminster they never had any one Iudgement given for them but many judgements given against them by which those fettered inheritances of the Frank-tenements of the Subjects be set at liberty according to their originall freedome vide ibidem plura Mandatum ita regulatur in superioribus sicut in privatis a voluntate mandantis Reg. I. C. a commandement is regulated from the will of the Commander as well in higher as in private things so as in every command the will of the Commander is to be considered and observed and therefore Coke com 258. a. Regularly it is true that where a man doth lesse then the commandement and authority committed to him there the commandement and authority being not pursued the act is void The King licenseth an Abbot and Covent to alien and the Abbot sole alieneth it is void 11. H. 7. 8. And the rule is given by Frowick when the King maketh any grant or licence it ought to be executed accordingly and strictly as if the King granteth to me a licence to make a Feoffment by Deed I cannot make a Feoffment without Deed nor e contra so that the licence must ever be pursued or otherwise the act done is not warranted by the licence 18. Ass Pl. ult The licence was to levy a fine of the Mannor of Dale to finde two Chaplaines and he would have levied the fine leaving out the Chaplaines and could not be suffered 3. E. 3. 5. Davis in his case of tenures f. 19. The Statute of Merton c. 3. ordaineth that in a re-disseisin the Sheriff assumptis secum custodibus placitorum coronae doe go to that tenement of which the complaint is made if the Sheriff take but one Coroner it is not good for the Act appointeth a number two at the least which number ought to be satisfied or else the authority given by them is not pursued 23 Ass 7 Ployd f. 393. So as it is manifest a nude authority must be pursued strictly both for matter or manner or the act down by colour of the authority iâ— void Dyer ibidem f. 20. Coke com f 52. a. b. If a man be disseised of black acres and white acres and a VVarrant of Attorney is made to enter into both and to make livery here if the Attorney enter into black acre onely and maketh a livery and seisin secundum formam chartae there the livery of seisin is void for the estate of the disseisor cannot be devested in white acre without an entry In a praecipe quod reddat there must be two Summoners there for Summons by one summoner is not good because he doth not pursue the authority of the Writ and if there be but one and the tenant make default and loose by default he shall have a Writ of deceite Ployd 393. 50. E. 3. 16. When a man assigneth Auditors to Accomptants and they be found in arrearages by the Statute of W. 2. c. 12. they may be arrested and by the warrant of the Auditors sent to Goale there if there be but one Auditor assigned he cannot commit the Accomptant to the Goale for the Statute limiteth such power to two at the least vide ibidem plura in the Earle of Leicesters case quod vide A Letter of Attorney to foure or three joyntly to make seisin two of them cannot make livery ibidem f. 181. b. But there is a diversity between an authority coupled with an interest and a bare authority as for example a custome
their Predecessors but excuse themselves and answer for their proper fact and demeanor for it is a common erudition that the Defendant in his answer and bar ought either to traverse or confess and avoid the Plaintiff vide ibidem plura Yet in Treasons and Felonies one shall be punished for anothers offence and by our Law and not without good reason the Sons of them which are disloyall Subjects and Traytors to their Prince are barred from the Inheritance of their Ancestors that their Fathers infamy may alwaies accompany them and that their life should be a punishment to them and their Fathers fault a continuall corasive and that is done because their Fathers Ulcers are feared in them and that being bred and brought up of naughty Parents they will be prone to do the like and this penalty is used in the nature of a medicine that by suffering shame he may be deterred from crime and therefore as Coke com 5. f. 391. l. by his attainder of Treason or Felony is the blood so stained and corrupted that his Children cannot be Heires to him nor to any other Ancestor And therefore where the Tenant is outlawed of Felony it is in the Lords election to have a Writ of Escheat supposing that his Tenant was outlawed of Felony or that he died without Heir for by the attainder the blood is corrupted 48 E. 3. 2. But it seemeth by Nichols case that the party attainted ought to be dead before the land can escheat for according to Dyer and Brian in the Kings case after the attainder and till Office be found the Fee-simple shall in facto be in the person of the attainted so long as he shall live for as he hath a capacity to take lands of a new purchase so he hath power to hold his ancient possessions and he shall be Tenant to a Praecipe and if he died before Office found and the land be held of the King the land shall go to the King in nature of a common Escheat Ployd 477. Nichols case but in case of Treason the King shall be presently after the attainder in actual possession without Office found by the Statute of 33 H. 8. c. 20. If the Father purchaseth land and his eldest Son is attainted of Felony and dieth the next in degree of descent and worthiness of blood unto the Son attainted shall not have the land but it shall escheat to the immediate Lord of whom the land is held for the blood is corrupted otherwise it had been if he had died in the life of the Father having no Issue Dyer 48. An account is brought against two the one entreth into an account and it is sound against him it shall bind both 44 E. 3. 18. One is imprisoned in the Marshalsey and a stranger breaketh the Prison and the prisoner escapeth the Marshall shall be charged for the whole debt If I have a way over the lands of twenty men and one of them stoppeth the way in his land I shall have an action against all those over whose lands the way was 33 H. 6. 26. by profit A rate is put upon a Town for the fees of a Knight of the Parliament The Beasts of him hath paid his part are taken for the residue he shall not have a Replevin but the beasts shall be sold to pay his duty 11 H. 4. 2. In quo quis delinquit in eo de jure est puniendus Co. com f. 233. b. In what one offendeth in the same by right he is to be punished As if any Keeper kill any Deer without warrant or fell or cut any Trees or under-woods and committeth them to his own use it is a forfeiture of his Office for the destruction of the Deer is by a mean the destruction of the Venison And so it is if he pull down the Lodge or any house within the Park for putting of Hay into for feeding of the Deer or such like it is a forfeiture and the reason why the Office shall in such and the like case be forfeited because in what one offendeth in that he shall be punished Dispensatio mali prohibeti est de jure Domino regi concessa propter impossibilitatem providendi de omnibus particularibus dispensatio est mali prohibiti provida relaxatio utilitate seu necessitate pensata Coke l. 11. 88. a. The dispensation of a prohibited evill is by right granted or allowed to the King because of an impossibility for providing for all particular things and a dispensation is a provident relaxation of an evill prohibited recompensed with profit and utility As where an Act of Parliament which generally prohibiteth a thing upon penalty which is popular or where it is onely given to the Queen may be inconvenient to divers particular persons in respect of the person place or time c. therfore in such causes the Law hath given power to the Queen to dispense with particular persons But when the wisdome of Parliament hath made an Act to restrain pro bono publico the Importation of any forrein Manufactures to the intent that the Subjects may apply themselves to the making of the said Manufactures c. and by it maintain themselves and families Now for private gaine to grant the importation of them to one or divers against the said Act is a Monopoly and against the Common Law and against the end and scope of the Act it self vide ibidem plura in the case of Monopolies Coke l. 5. f. 28. Cawdrys case By the Ecclesiasticall Lawes of this Realm a Priest cannot have two Benefices nor a Bastard be a Priest but the King by his Ecclesiasticall power and jurisdiction may dispense with both these because they are mala prohibita and not mala in se The King by a clause of non obstante may dispense with the Statute-law and that if the Statute saith that dispensation shall be meerly void 2 H. 7. Grants 73. Finch f. 82. Coke comm f. 120. a. A party or Minister disabled by reason of any corrupt Contract c. by the Act of 13 Eliz. which is an absolute and direct Law cannot be dispensed withall by any Grant c. with a non obstante as it may be when any thing is prohibited sub modoâ— as upon a penalty given to the King Coke l. 4. f. 35. b. in Bozums case when the King by the common Law cannot in any manner make a grant there a non obstante of the common Law will not make the grant good against the reason of the common Law as if the King granteth a protection in an assize or Quod impedit with a non obstante of any Law to the contrary that grant is void for by the common Law a protection doth not lye in any of these cases 39. H. 39. But when the King may lawfully make a grant but the common Law requireth that he may be so instructed that he be not deceived there a non obstante may supply it as when the King
granteth a lease for life or yeares he hath the reversion in him which he may lawfully grant but the Law requireth in this case that he be not deceived in his estate and to grant the possession of the Land whereas he hath but a reversion and therefore when he granteth the Land notwithstanding that it be in lease for life or for yeares of Record or otherwise the grant is good When the words of a grant are not sufficient ex vi termini to passe the thing granted but the grant is utterly void there any non obstante cannot make the grant good vide ibidem plura Davis f. 75. In the case of Commendams By our Law what is wrong and malum insert and against the Law of God cannot be dispensed with and therefore 11 H. 7. 12. a. It is said that the King cannot dispense with any that doth nusance in the High-way and if he doth it that such a dispensation is void 8 H. 6. 19. The King cannot grant that if a man doth a trespasse to me that I shall not have an action against him or that a man shall be his own Judge and therefore it is often said in our Books that the prerogative of the King shall doe no wrong to the Subject 13 E. 3. 8 So though the King may dispense with a Statute which prohibiteth an indifferent thing to be done yet he cannot change the common Law by his Patent 37 H. 8. Patent 110. And as to the Pope it is often said in the Bishop of St. Davis case that the Bulls of the Pope cannot change the Lawes of England Notwithstanding the word non obstante was first invented and first used in the Court of Rome which as Sir John Davis observeth f. 69. b. was a mischeivous precedent to all the common Weales of Christendome for the temporall Princes perceiving that the Pope dispensed with his Canons in imitation of him have used their prerogative to dispense with their penall Lawes and Statutes and whereas before their Lawes were religiously observed as the Lawes of the Medes and Persians Davis f. 77. The Law which ordaineth that the first benefice shall be void by the acceptance of the second may be dispensed with and so is it of the Law that ordaineth that when a man is made a Bishop that his other Benefices shall be void as Thrining saith 11. H. 4. 213. b. For those Laws were made by Ecclesiasticall policy and therefore the same policy may dispense with those Laws permissio non est officium legis quia lex ad fert necessitatem Reg. I. C. permission is not the office of the Law for the Law bringeth necessity As by the Statute of W. 2. Lands were permitted to be entailed and usury also by many Statutes yet can they not properly be termed Lawes and Statutes Confessus in judicio pro judicato habetur quodam modo sua sententia damnatur Coke l. 11. f. 30. He who confesseth in the Court of Justice is holden adjudged and in a certaine manner is condemned by his own mouth or sentence And therefore the Attainder in confession is the strongest attainder may be for the vehement presumption it hath of truth for it should be absurd to say that he hath not done such a Felony since the party himselfe hath confessed it to the distruction of him and all his off-spring And the case of confession is a stronger case then guiltinesse by verdict for though he be found guilty by verdict yet may he be innocent and therefore at the common Law he may have his Clergy and make his purgation but if he had confessed the offence upon record he shall not have his Clergy at the common Law because he could not make his purgation when the Court findeth his confession on Record for in the intendement of the Law he cannot contrary his expresse and voluntary confession in Court vide ibidem plura In praesentia majoris cessat potentia minoris Manhood in Ployd f. 498. a. In the presence of the greater power the lesser power ceaseth All the Justices agreed that the Ordinary the Patron and King ought to agree in making an impropriation and the Ordinary is the principall aagent in it in that he hath the spirituall jurisdiction and the act of appropriation is a thing spirituall and what the Ordinary of the Diasis might doe that the Pope used to doe in the Realme as supreame Ordinary and was a long time suffered so to doe and did use to make appropriations without the Bishop which were taken to be good and the Bishop never contradicted but accepted them as good for in the power of the greater the power of the lesser ceaseth and in all Ecclesiasticall jurisdiction his authority was taken as absolute and did bind the Bishop as his inferior in all acts now such authority and jurisdiction as the Pope used within this Realme was acknowledged by the Parliament 25. H. 8 and other Statutes to be in the King and that he might lawfully doe all that the Pope was accustomed and used to doe within this Realme and from him it descended to his Son Edward who as superame Ordinary did make the appropriation of his own authority and jurisdiction without the Bishop and did put these words in his Charter authoritate nostra regia ecclesiastica qua fungimur vide ibidem plura Vectigal ab origine ipsa jus caesarum est patrimoniale lex imperatoria Custome from the beginning is the right and patrimony of Caesar and Emperors and are called vectigalia a mercibus evectis invectis from Merchandizes exported and imported for custom is a prerogative and benefit to which Kings and Princes are by the Law of Nations intitled And as the Law Nations were before Kings so Kings were made by the Lawes of Nations ex jure gentium originem suam traxerunt Baldus and as soone as they were made Kings presently the Law of Nations did annex the prerogative of custome to their severall Crownes so saith Baldus cum creatus fuerit Rex omnia regalia ei conceduntur competit omnibus regibus jus imponendi vectigalia when a King was created all royall incidents were granted to him and the right of imposing customes appertained to all Kings Wherein the rules of our Law as Davis observeth f. 12. are agreeable with those of the imperiall Law for we also say that custome is the ancient inheritance of the Crowne of England and that inheret sceptro and is as ancient as the Crowne it selfe and is due by common right and by prescription and not by the grant and benevolence of Merchants or by Act of Parliament Dier 165. b. And whereas by the imperiall Law Primaria vectigalium causa ac ratio fuit ut plana tutaque mercatori praetereunti itinera praestarentur Plin. l. 19. c. 4. The first cause and reason of customes was that plaine and safe voyages should be exhibited and assured to the Merchants and in our
Law Wafrages and protection to the passing Merchants of the Sea was one of the principall causes of the payments of those duties Davis ibidem f. 12. And Dyer f. 43. Putteth a difference between a custome and a subsidy and saith that the custome for Merchandizes to be transported out of the Realme is an inheritance of the King and by the common Law and not given by any Statute and that appeareth by the Statute of 14. E. 3. which was the first Statute which maketh mention of any custome and that Statute doth not give or limit any Custome to the King but abridgeth and abateth the custome which was paid for Wool or Leather but a subsidy saith he is a Tax assessed by Parliament and granted to the King by the Commoners during the life of every King only which is made cleer by the case reported by Dyer 1 Mar. f. 92. where King Edward the sixth had granted a Licence to a Merchant stranger to transport all Merchandizes paying pro custumis subsidiis tot tantas denariorum summas quot quantas any english Merchant and Denizen should pay and no more And it was resolved by all the Judges after the death of Edward the sixth the grant was good for the Customes but void tor the Subsidies because the King had an Inheritance in the Custome as a Prorogative annexed to the Crown but in the Subsidies he had an estate only for life by act of Parliament But there is a third kind of duty payable for Merchandizes which are called Imposts or Impositions and these were sometimes rated and assessed by Parliament and then were they of the nature of Subsidies and sometimes were imposed by the Prerogative Royall to support the necessary charges of the Crown and then as the ancient Senator of Rome said Nihil magis justum est quam quod necessarium est There is nothing more just then that which is necessary Davis f. 12. vide ibidem plura The Impost upon Wines was first assessed by Parliament and limited to be paid for certain years which being expired is now continued by Parliament ibidem Opoâ—tet patrem familias vendacem esses non emacem Cato major Davis f. 10. The Master and Father of a Family ought to be a buyer and not a seller By the Grecians Kings were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pastors of the people and Emperors by the Romans Patres Patriae Fathers of their Country for their vigilant and Paternal care they were to take for the preservation and provision for the people for he is the publique Pater familias and is to bend his thoughts to the utility and commodity of the publique and as he is reputed a provident Father of a Family who hath more commodites to sell then occasions to buy so ought he to be a seller rather then a buyer and to provide that more native commodities be exported for sale and the less forrein Merchandizes imported to the buyer And therefore the little custome of forrein Commodties was then accepted of the King when but a little quantity of such forrein Wares were imported into England For in the time of Edward the first and after that in the times of Edward the third the native Commodities of England exported were of greater quantity and value by two parts of three at the least then the forrein Merchandizes imported by which King Edward the third raised so great a revenue out of the Native Commodities of his Dominions that it was noted for good Husbandry in that King for a Father of a Family ought rather to be a buyer then a seller but now it is altogether contrary for at this time the Out-gate is lesser then the In-gate and the forrein Commodities imported are of greater quantity and value by two parts then our native Commodities exported which is a great shame to our Nation to be so enamoured with Mercery and Grocery Wares imported by strangers and to expend upon those more then the value of all the Staple Commodities of our Country which will be in the end the decay and ruine of the Common-weale Davis ibid. Thesaurus regis est pacis vinculum bellorum nervi Coke l. 3. f. 12. b. The treasure of the King is the bond of peace and the sinewes of war And therefore the Common Law preferreth and advanceth the right of the King insomuch as Sir Henry Finch observeth you shall find it to be Law almost in every case of the King that is not Law in case of the Subjects and that with an intention to inhaunce the Kings Treasure and to replenish his Coffers whereby he may in time of peace advance the glory and honour of the Nation and in time of War be enabled to protect the Common-wealth against forrein incursions and invasions for the Kings Treasure is the bond of peace and sinewes of war And therefore in the case of the King which is not so in the case of a common person the body the lands and the goods of the Accomptant or Debtor of the King at the Common Law were liable to the execution of the King Dyer 234. before the Statute of 33 H. 8. c. 38. Coke ibidem and upon the same reason is this principall grounded Quando jus domini regis Subditi in simul concurrunt jus regis preferri debet Coke l. 9. 3. 129. b. when the right of the King and the Subject concur together the right of the King ought to be preferred As in Dame Hales case Ployd 262. Baron and Feme were Joynt-tenants of a term for years the Baron is selo de se he shall forfeit all and yet till the Office it surviveth but after the Office it hath relation before or at the least at the time of the death vide ibidem plura in Quicks case So Ploâ—d f. 263. b. If a Feme take husband and hath Issue and the land descend to the Feme and the Baron enter so that he is intituled to be Tenant by the Curtesie and then the Feme is found an Ideot and her Estate in the land is also found the King shall have the land and if the Feme dye the Baron shall never have the land by Curtesie for by the first possession of the Feme the Baron was entituled to be Tenant by Curtesie and when the Office is found the Title of the King shall have relation also to the first possession and so both the Titles commence at the same time but the King shall have the preheminence and because the Title of the King is in this case to the Frank-tenement of the land in that that he shall have the custody of it during the life of the Feme it shall utterly take away the Title of the Baron which before the Office found was vested in the Baron and therefore after the death of the Feme he shall not be Tenant by courtesie but the Issue shall have the lands out of the hands of the King if it be not
shall give notice of the said felony to some of the Inhabitants of any Village or Hamler next the place where the robbery was done and that if in their pursuit they take any of the Offenders that shall excuse them though they do not take all See there in that Statute the reason of the alteration Co. l. 6. f. 50. a. b. At the common Law a man that had once the benefit of the Clergy shall have it another time and so in infinitum which was remedied by the Act of 4 H. 7. So as the burning in the hand was not to other purpose but to notifie to the Judge whether he had had his Clergy before or no ibid. So if one be attainted at the Common Law for forging false Deeds the King cannot pardon it yet the King may pardon the corporall punishment in case of forgery in the Star-chamber because all Suites in the Star-chamber are but informations for the King though the Suit be exhibited by the party ibidem So before the Statute of 18 Eliz. c. 7. the King might in case of Inditement of Man slaughter pardon the Imprisonment 15 H. 7.9 but not in an appeal but after the Statute of 18 Eliz. by which it is provided that after Clergy allowed and burning in the hand the Prisoner shall presently be enlarged and delivered out of prison It was resolved that that Act did extend as well to the case of appeal as to the case of Inditements otherwise the party shall lawfully be discharged of his punishment and yet remain in perpetual prison ib. vide examen legum Angliae f. 29. Cessante ratione legis câ—ssat lex Coke com f. 70. b. The reason of the Law ceasing the Law it self ceaseth As he that holdeth his land by Escuage when the King maketh a Voyage royall into Scotland to subdue the Scots then he that holdeth by the service of one Knights fee ought to be with the King conveniently arrayed for the War for forty daies c. yet needeth he not go with the King himself if he will find another man and this seemeth to be good reason for it may be he is languishing so that he cannot go nor ride Also an Abbot or another man of religion or a Feme-sole which hold by such services ought not go in proper person Littleton ibidem Quia multa In jure communi propter rationabilem causam omittenda sunt for many things for a reasonable cause are to be omitted If the King give lands to an Abbot and his Successors to hold by Knights service this had been good and shall do homage and fine a man but there was no wardship or releif or other incident belonging thereunto but if the Abbot and his Heirs had conveyed the land to a natural man and his heirs now the wardship releif or other incident belonged of common right to the King So if the King give lands to a Mayor and Comminalty and their successors to be holden in Knights-service the Patentee shall do no homage neither shall there be any wardship or releif onely they shall find a man but if they convey the land to any naturall man and his heirs now marriage homage ward releif or other incidents belong hereunto for the reason of the Law being changed the Law its self is changed and the immunity which was in respect of the body politique by conveyance over ceaseth Coke ibid. Qui rationem in omnibus quaerunt rationem subvertant Theophrastus Coke l. 2 f. 7.30 who do seek reason in all things overthrow reason As if a man make a Lease of Indenture for life of lands in severall Counties and maketh livery of seisin in one County and divers daies after he maketh livery in the other County yet an intire rent shall issue out of the land in both Counties and yet the livery by which the Estate passed was made at severall times and therefore it may be argued that presently by the first livery the rent issued out of it But the Law shall not adjudge by parcels in subversion of the intent and agreement of the parties but after all Acts are made in performance of the originall contract and agreement of the parties the Law shall adjudge upon all as done at one and the same time So if a man make a Charter of Feoffment with warranty and deliver the Deed to the Feoffee and after at another time make livery secundum formam chartae yet the Warranty is good and yet it may be objected that when the Deed was delivered no estate passed to which the warranty may be annexed nor no estate was in the Feoffee by which the Deed might enure and so by nice construction upon the distinction of time the warranty shall be subverted but the Deed which comprehended the warranty took effect presently by the delivery of the Deed before livery and seisin and therefore the sentence is true that who do seek reason in all things subvert reason ibidem SECT II. A Verbis legis non est recedendum Coke l. 5. f. 118. b. we ought not to go from the words of the Law Edriches casc A. deviseth rent with distress to B. for the life of C. the heire leaseth the land for life to D. the remainder to E. in see the rent is behind in the life of D. D. dieth C. dieth B. distraineth for the arrearages of E. in remainder and resolved that he shall be charged by the second branch of 32 H. 8. c. 37. which giveth a distress for the arrearages upon such lands out of which the said rents were issuing in such manner and form as if Cestuy que vie had been living And the Judges said that they ought not to make any interpretation against the express letter of the statute for nothing can so express the intent of the makers of the act as their direct words themselves for Index animi seâ—mo and it shall be perilous to give scope to make construction in any case against the express words when the intent of the makers appeareth not to the contrary and when no inconvenience upon it shall arise for we ought not to go from the words of the Law vide ibidem plura Coke l. 10 f. 105. a. b. If in an Assise so many of the Recognitors make default that there be not twelve the Justices of Assise cannot award Tales de circumstantibus for though the Justices of Assise are named in the said Act of 35 H. 8. as well as the Justices of Nisi prius yet insomuch as the said Act doth not give power to Justices of Assise or Nisi prius but where the tryall shall be by twelve men in any Writ of Habeas Corpora or Distringas with Nisi prius and it cannot be in an Assise for Assisae capiamur in proprio Comitatu and can never be taken by Nisi prius in proprio commitatu and no exposition can be made against the express words for that shall be viperina expositio quae
another to save his life thrust him from it whereby he is drowned this is neither se defendendo nor by misadventure but is justifiable Bac. Max. f. 25. So if diverse Felons be in a Goale and the Goale by casualty is set on fire whereby the prisoners get forth this is no escape nor breach of prison 15. H. 7. 2. by Keble So if a man have right to Land and doth not make his claime for feare of force the Law alloweth him continuall claime which shall be as beneficiall to him as any entry 12. H. 4. 20. Lit. So where Baron and Feme commit a Felony the Feme can neither be principall nor accessary because the Law intendeth her to have no will in regard of the obedience and subjection shee oweth to her husband Stanf. 26 2. E. 3. 1â—0 Cor. Fitz. So one reason why Embassadors are used to be excused of practises against the State where they reside unlesse it be in point of conspiracy which is against the Law of Nations and Society is because it doth not appeare whether they have it in Mandatis and then they are excused by necessity of obedience Bacon Max f. 26. So if I be tenant for yeares of an house and it by the Act of God or a stranger be over-throwne by great tempest or by sudden floods or invasion of Enemies in all these cases I am excused in wast 42. E. 3. 6. 19. E. 3. by Fitz. wast Ployd f. 9. b. Any man in his defence or a Champion upon tryall may kill others and that is for the necessity of the salvation of his life in his defence and by the common Custome of the Realme the Hostelers shall be charged with the Goods of the Guests lossed and taken out of their houses yet if their houses be broken by the Kings enemies and the goods of the guests lessened or embezelled they shall not be charged with them because they could not resist them ibidem So for necessity the funerall expences shall be first paid by the Executors Broh executor 162. So a man may milk a Cow that he hath by return irrepleaible and that is for necessity Finch Nom. I. S. 35. Davis 122. 1. Nihil magis est justum quam quod necessarium est Nothing is more just then what is necessary So the King by his Prerogative for the necessary charges of the Crown may decree Imposts and Impositions payable upon Merchandizes contrary to the petition of right and property Though a man may not be punished for an act he doth by necessity of obedience yet if the act be unlawfull he is not the less to be blamed or if it be not necessitas culpabilis As those which releived Sir John Oldcastle with provision were not punished because they did it pro timore mortis for feare of death Steel in the C. of M. H. Coke com l. 5. f. 40. b. Necessitas saepenumero vincit communem legem Necessity for the most part overcommeth the common Law As if two Joynt-tenants be of land to them and the heires of one of them they shall not joyn in a Writ of Right But two Joynt tenants and the heires of one of them in a Writ of Advowson shall joyn in a Writ of right of Advowson And the reason of the diversity is because that in the first case they have severall means and remedies as it is agreed in 46 E. 3. 21. But in the other case if Tenant for life shall not joyn with him that hath the fee neither the one nor the other shall have any remedy and therfore in this case necessity overcometh the Law ibidem Coke l. 10 f. 61. a. Illud quod alias licitum non est necessitas facit licitum necessitas inducit privilegium quod jure privatur Bract. f. 247. that which is not otherwise lawfull necessity maketh lawfull and necessity introduceth a priviledge which is deprived by Law As if a Bishop granteth an Annuity-out of his Bishoprick that is restrained by the Statute of 1 Eliz because it is a diminution of its revenues and depauperation of its successors But if a Bishop grant an Office to one only that is not restrained by the statute of 1 Eliz. because such Grants are for necessity for if the Bishop should not have power to grant such Offices of service and necessity for the life of the Grantees no sufficient persous would serve them in such Offices or at the least would not discharge it with such alacrity if they had no estate for their lives but that their estates did depend upon uncertains as the death or translation of the Bishop Bacon Max. f 17. Privilegium non valet contra rempublicam The necessity of priviledge prevaileth not against the Common wealth for publick necessity is greater then private and therefore in all cases if the act be against the Common-wealth necessity excuseth it And accordingly the Law imposeth on every Subject that he prefer the urgent service of his Prince and Country before the safety of his life As in a tempest if those in a Ship throw over their Goods they are not answerable But if upon command they have Ordinance and amunition to releive any of the Kings Townes they cannot justifie the throwing of them over ibidem So in the case of Husband and Wife if they joyn in committing Treason the necessity of obedience doth not excuse the wife as in felony because it is against the Common-wealth 13 H 8.16 by Shelly So if a fire be taken in a street I may justifie the pulling down of the Wall or House of another mans to save the row from the spreading of the fire 12 H. 10 by Brook 22 Assise pl. 66 But if I be assailed in my House City or Town and distressed and to save my life set fire on my house which taketh hold upon other houses adjoyning I am subject to their action of the case because I cannot rescue my own life by any thing which is against the Common wealth but if it had been but a private trespass as the going over anothers ground or the breaking of his inclosure when I am pursued for the safety of my life it is justifiable 6 E. 4. 7. But necessitas culpabilis excuseth not as to kill one se defendendo is not matter of justification because quarrels are presumed not to grow without some wrong and the Law supposeth the party not to be without some malice and therefore it putteth him to sue out his pardon of course and punisheth him with the loss of his Goods Bacon Max. f 28. Compulsion also is a good excuse in our Law against the words of the Law And therefore whatsoever I do by duresse is not my act but may be avoided according to the rule Actus me invito factus non est meus actus An act done against my will is not my act as when I am compelled for fear of imprisonment to make a Bond or a Deed such a fear sufficeth to avoid
of debt for the arreaâ—ages before the coverture yet when as the Statute giveth to the Baron an Action of debt for the arrearages the words shall be taken with effect and shall be construed for the arreages due before It is a rule in the Law that verba restringuntur ad habilitatem personae vel ad aptitudinem rei Bac. Max. f. 14. Generall words are to be restrained to the condition of the person or fitnesse of the thing as if a man grant to another common inter metas bundas villa de Dale and part of the vill is his severall and part of his wast common the Grantee shall not have common in the severall yet this is the strongest exposition against the Grantor so by all the precedent rules and grounds it appeareth that the rule that words shall be taken more strongly against the Grantor doth yeild to them as the more worthy and equitable vide ibidem plura where this rule with its differences and exceptions is amply and accurately discussed The grant of a common person shall be taken more strong against him but the grant of the King shall be taken more strong against a stranger and more favorable for him Ployd f. 243. a. As a Mannor granted by the King the advowson shall not passe without speciall words 2. H. 7. 8. So the King may grant a thing in action Ibidem And if the King grant a Mannor or Land without limitation of any estate the grant is void for the incetrainty and the Grantee shal not be tenant at the will of the Lord Davis Rep f 45. vide ibidem plura This rule hath no place in Acts of Parliament Verdicts Judgements or Devise Bacon f. Max. 21. Expressio eorum qâ—ae tacite insunt nihil operatur Coke l. 4. f. 73. b. The expression of those things which are covertly implyed worketh nothing for the expression of a clause which the Law implyeth operateth nothing as in 30. Ass Pl. 8. A Lease is made to two for terme of their lives diutius eorum viventi and after they made partition and the one dyeth and he in reversion entereth and his entry adjudged lawfull notwithstanding the said words diutius eorum viventi for without those so much was covertly implyed by the Law 17 E. 3. 7. Hulls case whereupon Coke giveth this observation that in case of lease for life it is more beneficiall for the Lessor to have the joynture severed then to have it continue but otherwise it is in a Lease for yeares for if a man makes a Lease for yeares to two with a proviso that if the Lessees dye within the terme that the terme shall cease the Lessees make partition or one alieneth his part and dyeth the Lessee shall not enter into his part that is dead but the Grantee or the Executors of the Lessee shall 〈…〉 So if the King maketh a Lease for yeares rendring rent without limiting of any place or to whose hands it shall be paid the Lessor may by the Law pay it either to the receipt of the Exchequer of the King or to the hands of the Bailiffs or receivors of the King whom the King hath authorized to such purpose and therefore the usuall and speciall limitation of the payment of rent at the receipt of the Exchequer c. doth import no more then the Law will imply and therefore nihil operatur Ibidem Coke l. 8. f. 26. b. If the King reciting that another holdeth the Mannor of D. for life granteth the said Mannor to B. for his life in this case the Law implyeth that the second grant shall begin and take effect after the determination of the first grant and therefore there is no incertainty in the grant though it be not expressed so for the expression of a clause which the Law implyeth operateth nothing ibidem in the Earle of Rutlands case Coke l. 10. f. 39. a. By the Statute of 32. H 8. Tenant in taile may make a Lease for three lives or ten yeares and by the Statute of 4. H. 2. c. 24. he may levy a fine and by the Statute of 32. H. 8. c. 36. by it bar the issues and therefore if a man make a guift in tail and further grant that he may lease for life or for yeares or levy a fine with proclamations to bar the Issues nihil operatur for when one maketh a tacit guift in taile he giveth those incidents to it Ibidem And therefore are such conditions and expressions called by Sir Francis Bacon clausula vel dipositio inutilis an unprofitable clause and disposition and to no use because the act or the words do express no more then the Law by intendment would have supplyed and that therefore the doubling and iterating of that and no more then which the conceite of the Law doth in a sort prevent and preoccupate is reputed nugation And thâ—refore if a man devise Land at this day to that they must worke some thing and not be idle and frivolous in Edward Foxes case wherein it was his Son and heire it is void because the disposition of the Law did cast the same upon the heir by descent 32. H. 8. Gourd 39. Ber. And yet if it be by Knights service Land and the heire within age if he take by the devise he shall have two parts of the profits to his own use and the guardian shall have the benefit but of the third Brooke devise 41. But if a man devise Lands to his two Daughters havnig no Sons then the devise is good because he doth alter the disposition of the Law for by the Law they shall take in coparcenary but by the devise they all take joyntly Dyer 12. Bacon f. 74.75 vide ibidem plura Yet Littleton saith it is well done to put in such clauses to declare and expresse to the lay people which are not learned in the Law what the Law is in such cases Co. lib. 4. f. 73. b. Expresum facit cessare tacitum Coke com f. 183. b. A matter or thing expressed causeth that to cease or to be of no effect which by intendement of Law was implyed and not expressed As if one grant Lands to two without expressing what estate they shall have they have a joynt estate for terme of their lives but if a Lease be made to two Habendum to the one for life the remainder to the other for life this doth alter the generall intendement of the promises so if a Lease be made to two Habendum the one moiety to one and the other moiety to the other the Habendum doth make them tenants in common for that which is expressed doth make that which is secretly intended to cease Ibidem for as he in another case saith if the generall words should stand without any qualification then the speciall words should be altogether vaine Coke l. 8. f. 154. in Edward Althans case quod vide Coke Com. f. 210. a. b. If the Feoffee in mortgage before
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
by misadventure as by an Arrow at Butts this hath a pardon of course but if a man be hurt or maimed onely an Action of Trespass lyeth though it be done against the parties will and he shall be punished in the Law as grievously as if he had done it of malice Stanf. 16.6 E. 4.7 So if a Chyrurgion authorized to practise do through negligence of his cure cause the party to dye this Chyrurgion shall not be questioned for his life yet if he do onely hurt the Wound whereby the cure is cast back and death ensueth not he is subject to an Action of the Case for it Stanf. 16. So if Baron and Feme commit Felony together the Feme in regard of the subjection of her will to her husband shal neither be principal not accessary but if they joyn in committing a Trespass upon land or otherwise the Action may be brought against them both So if an Infant wanting discretion or a mad-man kill another he shall not be impeached thereof but if they do him any corpâ—rall hurt he shall be punished in Trespass 35 H. 6. 11. So in Felony if the principall dye or be pardoned the proceeding against the accessory faileth But in a Trespass if one commandeth his man to beat you and after the Battery the Servant dyeth yet you may have an Action of Trespass against the Master 17 H 4.19 Aestimatio praeteriti delicti post facta nunquam crescit Bac. Max f. 32. In penall Lawes and Facts the Law considereth the degree of the offence not as it standeth at this time when it is committed but for any circumstance or matter subsequent the Law doth not extend or amplifie the same As if a man be wounded and the Percussor is voluntarily let to go at liberty by the Goalor and after the party wounded dyeth yet it is no Felonious escape in the Goaler 11 H. 4.12 So if one conspire the death of one who after cometh to be King not being within the Statute of 25 E. 3. this is high not high Treason but otherwise it is in civill and common cases vide ibidem Plur. Ipsae etenim leges cupiunt ut jure regantur Co. l. 2. f. 25. In omnibus quidem maxime tamen in jure aequitas est Reg. I. C. In all things but especially in the Law there is equity and the Lawes themselves desire to be ruled by equity For inasmuch as no Legislators can foresee all things which may happen it was therfore convenient as Ploydon saith that that fault should be reformed by equity And is either an amplification or diminution of the Law and no part of the Law but a morall vertue which reformeth the Law for dirigens and directum are diverse things and equity is not a Law but the emendation of the Law and therefore the Lawes themselves desire to be ruled by equity As whereas the Debtor after he is become Bankrupt may prefer one and defraud others the Act of 13 Eliz. c. 7. hath appointed certain Commissioners of indifferency and credit to releive the Creditors of the Bankrupt equally and that there shall be an equall and rateable proportion observed in the distribution of the Goods of the Bankrupt among his Creditors having regard to the quantity of their severall debts so that one shall not prevent the other but all shall be in aequali jure and so we see in many cases as well at the Common Law as upon the like statutes such constructions have been made for as Cato said Ipsae etenim leges cupiunt ut jure regantur and therefore is it holden 35 H. 8. Title Testaments V. de plura in Herberts case lib. 7. Bro. 19. A man holdeth three Mannors of three severall Lords by Knights-service every Mannor being of equall value he cannot devise two Mannors and leave the third to descend according to the generality of the Acts of 32. 34. H. 8. of Wills for then it shall prejudice the other two Lords but by equall construction he cannot devise but two parts of every Mannor and so as equality shall be observed among them and so at the Common Law an equality is required as in 11 H. 7. 12. b. a man is bound in an Obligation and his Heirs and he hath Heirs and hath lands of the part of his Father and part of his Mother both the Heirs shall be equally charged vide ibidem plura Co. Com. f. 10. a. If partition be made between Parceners of lands in Fee simple and for novelty of partition one granted a rent to the other generally the Grantee shall have a Fee-simple without this word Heirs because the Grantor hath a Fee-simple in consideration whereof he granted the rent Ipsae etenim leges c. And Co. Com. f. 271. a. b. when a Feoffment is made to a future use as to the performance of his last Will the Feoffee shall be seised to the use of the Feoffor and his Heires in the mean time for the Lawes desire to be ruled by right and equity And reason would that seeing the Feoffment is made without consideration and the Feoffor hath not disposed of the profits in the mean time that by construction and intendment of Law the Feoffor ought to occupy the same in the mean time And so it is when the Feoffor disposeth the profits for a particular time in presenti the use of the Inheritance shall be to him and his Heires as a thing not disposed of Co. ibidem Co. l. 5. f. 100. a. The Commissioners of Sewers by the Statute of 6 H. 6. c. 5. and 23 H. 8. c. 5. ought to tax all equally which are in danger to be endamaged by not repairing the Banks and not him onely who hath land adjoyning to the River for otherwise the rage and force of the water may be so great as the value of the land adjoyning shall not serve to repaire the Banks and therefore the Statutes will have all who be in the same perill and are to receive commodity by it to be contributory and the statutes require equality which well standeth with the rule of equity for equitas in Bracton est quasi aequalitas and though the Owner of the Land next adjoyning to the River was bound by prescription to repaire the banks of the River yet the Commissioners ought not to charge him only with all but to take all those which have lands in danger for otherwise it may that all the country shall be surrounded before that one person onely can repaire the Banks vide ibidem plura In Fooks case Coke l 7. f. 123. b. When the King granteth any Land without the reservation of any Tenure or without any thing from thence to be rendred or the like that land by the operation of Law shall be holden of the King in Capite by the service of Chivalry according to the rate and proportion of land that affereth to one fee of Chivalry and so of more more and of lesse lesse for the
Act in Law respecteth equity and will never charge any one with more or lesse then in reason and equity it ought For as Bracton saith jus respicit aequum If two four or more being severally seised in land joyn in a Recognizance all their lands must be equally extended An house that hath Copyhold and other lands usually occupyed with it is let for yeares with the lands appertaining yet the Copyholds passe not without speciall naming for then it were a forfeiture of them for the Law construeth all things according to equity and constraineth a generall Act if there be any mischief or inconvenience in it Finch Nomot f. 54. So a Corody granted to one and his Servants to sit at his Messe he cannot bring a Servant that hath some stinking and noisome disease And if Estovers be granted out of a Mannor the Grantee shall not cut down Fruit-trees So a Common granted to one for all his Beasts he shall not have Common for Goats and Geese nor other Beasts not Commonable Finch ibidem It is no Trespasse for a man to beat his Apprentice which is but reasonable correction for equity moderateth the strictnesse of the Law Finch Nomot f. 57. No more is it to carry away a mans Wife against his will to a lawfull end as to sue a divorce against her husband or to have the Peace of him before a Justice of Peace So if the Lessor commeth upon the ground it shall be intended that he came to see if Wast were done for equity turneth all to the best and maketh every Act to be lawfull when it is indifferent whether it be lawfull or not Finch Nomot f. 57. And if the Disseisee come it shall be taken that he meant to be remitted And in an Action of Trespasse if two Issues be joyned triable in two Counties as one in London and another in Middlesex without saying which of the Issues it should try this shall be taken to try the Issue in Middlesex onely for so the Venire facias is lawfull and not in both Counties which is against Law and therefore it is a discontinuance in the City of London and no discontinuance Finch ibidem And such a desire hath the Law to be ruled by equity as that it will feigne a thing in shew and colour whereby the reall right and equity of the thing may more certainly be found according to the ground Lex fingit ubi subsistit aequitas The Law faigneth where equity subsisteth Coke l. 10. f. 90. a. As the reason why the Law will give a colour in a Writ of Entry Sur-disseisin Writ of Entry in nature of Assise Trespass c. is that the Law which preferreth and favoureth certainty as the Mother of quiet and repose to the intent that either the Court shall adjudge upon it if the Plaintiff demurr or that a certaine Issue may be taken upon a certaine point requireth that the Defendant when he pleadeth such a speciall Plea that yet notwithstanding the Plaintiff may have right the Defendant shall give colour to the Plaintiff to the end that the plea shall not amount to the generall issue and so to leave all the matter at large to the Jurors which shall be full of multiplicity and perplexity of matter and though the colour be but a fiction yet the Law feigneth where equity subsisteth So f. 40. a. Common Recoveries are fictions in Law and for the equity that in them is transacted they are not onely allowed by the Common Law for the intended recompence but warranted by statutes for their equitable use And therefore the statute of 7 H. 8. c. 1. reciteth that divers as well Nobles as Commons have suffered Recoveries against them of divers of their Mannors for the performance of their Will for assurance of Joyntures to their Wives c. The same act in approbation of common recoveries giveth remedy to such recoveries in divers cases And in Dr. Student c. 26. it is determined that common recoveries do bind as well in conscience as in Law for semper in fictione legis subsistit aequitas And by the statute of 23 Eliz. c. 4. it is provided that for the avoiding of danger to common assurances in lands and for the advancement of common recoveries that not any common recovery shall be avoided by any want of form in words and not in matter of substance vide ibidem plura in Mary Portingtons case So Co. l. 11. f. 51. a. If one disseise me and during the Disseisin he cutteth down Trees Grass or the Corn and then I re-enter I shall have an Action of Trespasse against him vi armis for the Trees Grass and Corn for after my regresse the Law as to the Disseisor and his Servants supposeth that the Frank-tenement hath alwaies continued in me but if my Disseisor make a Feoffment in fee gift in tail lease for life or yeares and after I re-enter I shall not have trespasse vi armis against them who come in by Title for this fiction in Law that the Frank-tenement hath continued alwaies in me shall not have relation to make him that cometh in by Title to be a wrong doer vi armis for in a fiction of Law alwaies equity existeth vide ibidem plura And by these cases it appeareth that equity hath a vigorous use in the exposition of the Common Law But this bright Star more cleerly shineth and sheweth forth its lustre in the construction of Statutes for as Co. Comm. f. 24. b. equity is a construction made by the Judges what cases out of the letter of the Statute yet being within the same mischief or cause of the making of the same shall be within the same remedy that the statute provideth and the reason hereof is for that Law-makers could not possibly set down all cases in expresse termes and Co. Com. f. 271. b. when Lands and Tenements are conveyed upon confidences uses and trusts if any question groweth upon them they are to be ruled and decided by the Judges of the Law for they are within the intendment and construction of the Lawes of the Realm Rhet. l. 1. c. 3. And therefore Aristotle well adviseth Legislators and Makers of Lawes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to design and determine of things and to leave as little as may be to the descretion of the Judges But as Co. lib. 6 f. 40. b. Rerum progressus ostendâ—nt multa quae initio praecaveri provideri non possint The progresse and proceeding of things do declare and shew many things which at the beginning could not be heeded or provided for and therefore is equity required to replenish and fill up those chincks and deserts which seem to be in the letter of the Law which is therefore accordingly thus defined Aequitas est verborum legis directio sufficiens cum una res solummodo cavetur verbis ut omnis alia in aequali genere iisdem caveatur verbis Equity is a sufficient direction of the words