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
at Westminster to the Church of S. Peter at Rome within three hours that then the Obligation shall be void the Condition is void impossible and the obligation standeth good And so it is of a Feoffment upon condition that the Feoffee shall go as is aforesaid the Feoffment is absolute and the Condition void because it is a Condition subsequent for there is a precedent Condition and a subsequent Condition If a Condition subsequent to a Feoffment in fee be impossible the state of the Feoffee is absolute but if the Condition precedent be impossible no state or interest groweth thereupon As if a man make a Lease for life upon Condition that if the Lessee go to Rome as aforesaid that then he shall have fee the Condition precedent is and therefore no Fee-simple followeth Coke ibid. The statute appointeth that in re-disseisin the Sheriff shall go to the place and there shall take the Inquest If then the re-disseisin is of severall lands in divers Counties so as he cannot be at all at once it is sufficient to take the Inquest at one of them because of the impossibility 40 Ass 23. If a man be bound by recognizance or Bond with Condition that he shall appear the next term in such a Court and before the day the Conuzee or the Conuzor dieth the Obligation is saved And in all cases where a condition of a Bond or Recognizance c. is possible at the time of making of the Condition and before the same can be performed the Condition becometh impossible by the act of God or of the Law or of the Obligee there the Obligation is saved But otherwise in case of a Feoffment as if a man maketh a Feoffment on condition that if the Feoffor shall appear in such a Court the next term that then it may be lawfull for the Feoffor to re-enter and presently after the Feoffor dieth the estate of the Feoffee is become absolute And the reason of this diversity is because the estate of the land is executed and setled in the Feoffees and cannot be returned back but by matter subsequent viz. The performance of the Condition But a Bond or Recognizance is a thing in action and executory and whereof no advantage can be taken untill there is a default in the Obligor Coke com f. 260. a. vide ibid. plura Vltima prioribus derogant Reg. I. C. Leges posteriores priores contrarias abrogant Coke l. 11 f. 62. 63. The last Laws derogate and abrogate the first which are contrary Though the wisdome of the Judges and sages of the Law have all wages suppressed subtle and new inventions in derogation of the Common Law and will not change the Law that hath been used 38 E. 3. 1 so as if it be not altered by Parliament it remaineth still yet as Cato said Vix ulla lex fieri potest que omnibus commoda sit And as Sir Edward Coke rerum progressui ostendunt multa quae initio praecaveri provideri non possint It is impossible for any Law to be which may be commodious to all and the progress and proceeding of things shew and present many things which at the first could neither be presaged nor prevented From whence it proceedeth that no Law can be so absolute but that may in some particulars prove defective and amendable and yet as Ployd f. 369. that Law is reasonable which provideth for the multitude though some especiall persons lose by it which hath been the occasionall cause of the alteration of the Common Law in many points Yet the Common Law hath no controller but the high Court of Parliament and the wisdome and custome of this State hath alwaies had such regard and respect to the Common law that they would by no meanes change it but by the great Councell of Parliament wherein all things are transacted not onely by the prudency of the Prince but by the cheifest and sagest Senators of the whole Nation and that not upon the consultation and declaration of one or two hundred but as Fortescue by more and three hundred elect men by which number the Senate of Rome was ruled who alwaies have been cautious and vigilant not to introduce any forrein Law as Sir John Davis in his Preface observeth That in the Parliament of Merton when motion was made by the Clergy that Children borne before marriage might be adjudged legitimate The great and wise men of England made answer with one voice Nolumus leges Angliae mutari And again in 11 R. 2. when a new course of proceeding in criminall Causes according to the form of the Civill Law was propounded in that unruly Parliament Answer was made by all the States That the Realm of England had not been in former times nor hereafter should be ruled by the Civill Law And therefore for the most part Magna Charta which is the foundation of other Acts of Parliament and other ancient Statutes are but the affirmations and declarations of the Common Law And that whereas the words of the Statute are generall the construction thereof shall be according to the reason of the Common Law Coke com 81 b. 282. b. So cautious have our grave and prudent Senators been not to subject the common-common-law to any mutations unless for necessary and impulsive causes reasonably arising from the publick mischeifs and inconveniencies which happen in the Common-weal through the injurious abuses of the ancient and former Lawes upon which grounds other Lawes were constituted for the remedy of such mischeifs and inconveniencies which did abrogate the former from whence grew this ground Leges postertores priores abrogant To illustrate this by examples It is regularly true that Statutes in the affirmative shall not take away precedent acts affirmative unless it be in speciall cases As the Statute of Wills 32. 34 H. 8. doth not take away a custome to devise lands as often hath been adjudged So it is enacted that the King shall have Wreckum Maris per totum regnum yet this shall not take the wreck from one who hath wreck by prescription unless the prescription had been per totam Angliam Coke l 5. in Sir Henry Constables case So the Statute of 21 H. 8. c. 13. enacteth that if one â—ath a Benefice of the value of eight pounds and taketh another and is inducted the first is void doth not take away the Law which was before that if one who had a Benefice with cure did accept another the first is void only that in that case no lapse shall incur without notice Coke l. 4. in Hollands case and in this point is the Statute nothing else but a confirmation and affirmance of the Law before ibid. So the Statute of 23 Eliz. that inflicteth the penalty of twenty pounds by the moneth hath not taken away the Statute of 1 Eliz. which hath given the forfeiture of twelve pence for every Sunday and Holy-day but both shall be paid the twelve pence onely to
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
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
to tender him the money and the other shifteth away to prevent him it seemeth in this case he shall be excused because he hath done his endeavour 8. E. 4. 1. by Catesby One was indited quod burglariter fregit intravit ecclesiam nocte ad depraedandum bona parochianorum in eadem existentia and good though he took nothing away for his will was to have taken Dier f. 99 and 58. A man giveth a juror money to embrace him though the verdict pass against him he shall be punished for this 28. H. 6. 12. A man carrieth his sick father into a croft whereby he dyeth it is felony An Harlot hid her child with leaves in a thicket and a Kite striketh it and killeth it it is felony A Bull Beare or Dog accustomed to doe hurt of which the master and owner well knowing doth not tie him up but suffereth him to goe at large and being so at large he killeth a man this is held by Fitzherbert to be felony in the owner of the Beast for thereby the owner seemeth to have a will to kill vide Wilson office of Coroner f. 11. And by the civill law if a man be bitten of another mans dog the owner of the dog is chargeable unto him that is hurt because he did not tie up his dog and musle him Fulb. Pand. f. 76. For it is a rule in the civill law voluntatem pro facto reputari A wife after the death of her husband being a copy-holder came into the Court and challenged her right of Frank-bank and prayed to be admitted but the steward refused to admit her yet was it adjudged an admittance in law So if a tenant alien and the feoffee tendreth his services and giveth a fine and the Lord refuseth the Lord shall be compelled to avow upon him and so continuall claime amounteth to an entry Huttons rep f. 18. And therefore the deniall to doe any thing is a breach of covenant as if a man be bound to doe an act when I request him and I doe request him and he will not doe it he hath forfeited his band 15. E. 4. 21. 34. H. 8. 23. Exitus plerumque in maleficiis spectatur non voluntas the act and not the will in evill facts is respected and considered though in ancient times the will was so materiall in felonious attempts that it was taken for the fact it selfe and so adjudged as one intending the death of another man woundeth him so grievously that he leaveth him for dead and afterward flyeth and the man wounded revived it was then adjudged to be felony in so much as his will appeared to have killed him 1. E. 3. with which Bractons saying accordeth in maleficiis spectatur voluntas non exitus but this law is not now in force for he must be dead indeed before it be adjudged felony and though the will be wanting the evill deed is alway censured for felony As if I hurt another onely with an intention to beat him and he dieth it is felony So upon the malicious words of a woman two men fought and the one killed the other the woman in this case was arraigned for the death of the slaine man Three men goe together to diffame one and one of them killeth a man the other two are principalls though they had no such will and intention Non efficit conatus nisi sequatur effectus non efficit affectus nisi sequatur effectus Coke l. 11. f. 98. b. A conation and an affection hurteth not unless the Act and effect ensue As those who have Offices of trust and confidences shall not forfeit them by conations and intentions to doe Acts although they declare them by express words unless the Act it selfe ensue As if one who hath the custody of a Park shall say that hee will kill the game in his custody or that hee will cut downe the trees in the Park yet doth hee neither kill the game or cut downe the trees that is no forfeiture sic de similibus for in all such cases there ought to be such a fact or a negligence which amounteth to as much to wit as to the destruction of the game If a Bishop Arch-Deacon or Parson c abateth all the trees it is a good cause of deprivation 9. E. 4. 34. If a Prior make dilapidation it is a good cause to deprive him 29. E. 3. 16. 20. H. 6. 36. But if it be but a conation or enterprise without any Act done in none of these cases it is cause of deprivation for in these cases voluntas non reputabitur pro facto the will shall not be reputed for the deed So a conation or an enterprise cannot be the cause of the disfranchisement of a Citizen or Burgesse for he may repent before the execution of it and then no prejudice will ensue but the matter which shall be the cause of a disfranchisement must be an Act or a deed against the trust and duty of his freedome or to the prejudice of the publike good of the City or Burrough vide ibidem plura in James Baggs case Affectus punitur licet non sequatur effectus Coke l. 9. f. 56. 57. in the Poulters case The affection or will to doe a thing is punished though the effect followeth not Though a Writ of conspiracy doth not lie unless that the party be indited legitimo modo acquietatus for so are the words of the writ yet false confederacy among diverse persons shall be punished though that nothing was put in ure as 27. Ass Pl. 44. Two were indited of confederacy either of them to maintaine the other though the matter was true or false and though nothing was supposed to be put in ure yet the parties were put to answer to it for that such a thing is forbidden by the law And in the next Article of the same book enquiry shall be made of conspirators and confederators which confederate among themselves c. falsely to endite and acquit and of the manner of their alliance and betweene whom which proveth that confederation to endite and acquit is punishable by the law though that nothing was executed And it is holden 19. R. 2. title briefe 726. A man shall have a writ of confederacy though as they do nothing but confederate together and shall recover damages and may be indited for it also Also the usuall commission of Oyer and Terminer giveth power to the Commissioners to enquire de omnibus coadunationibuâ— confederationibus falsis alligantiis coadunatio is an uniting them together confederation is a combination between them and falsa alligantia is a false alliance one with another by obligation or promise to execute any unlawfull Act which the law punisheth before any fact is executed to the end to prevent the unlawfull act quia quando aliquid prohibetur prohibetur illud per quod pervenitur ad illud for when any thing is forbidden that also is forbidden by which
words contrary to the simple intent as Tully saith in his Offices is calumnia quaedam ninis callida malitiosa Juris interpretatio ex quo illud summum jus summa injuria a kind of a calumny and malitious interpretation of the law from whence that saying proceeded the rigor of right is the extremity of injury As he putteth the example of one had made a truce for 130. daies with his enemy and in the night he plundered and depopulated his possessions because he said the truce was for daies and not for the nights which Cicero accounteth meere injury and injustice and admonisheth men to avoid the like interpretation of the law and to observe the intent of the words and certainly words are but testimonialls of the intent and therefore Ployd f. 107. b. It is said it is the offices of Judges to take and expound the words as the common people doe use them to express their intent according to their intent As a Lease was made for life and that after his decease the tenements redibunt to a stranger it shall be taken as a remanebunt because to that purpose it was there used and therefore by 18. E. 3. f. 28. It shall be taken by way of remainder So a lease for life the reversion to a stranger shall be taken as a remainder for the reason abovesaid 30. M. 1. ante 157. vide ibidem plura in Hills case And so Ployd f. 291. a. Where a covenant cannot be performed according to the words it shall be performed according to the intent as neere as may bee as in the case of Littleton where a man maketh a feoffment upon condition that the feoffee shall make an estate in speciall taile to the Feoffor and his wife and the heires of their bodies if the Baron dieth before the estate made the estate shall be made as neere to the condition as may be to wit to the feme for life without impeachment of wast the remainder to the issues in taile according to the first limitation and if the feme be dead then the feoffee ought to give the lands to the issues and the heires of the bodie of his father and his mother engendred If the words be performed and not the intent the agreement is not performed Ployd f. 291. b. according to the rule of the civill law leges non ex verbis sed ex mente sunt intelligendae lawes are not to be understood and construed by the words but by sense and meaning of the parties as where the Defendant was obliged upon condition that if his feoffees of his Mannor of W. should grant to the Plaintiff an annuall rent of forty shillings out of the said Mannor that then c. and he had three feoffees and two of them granted to the Plaintiff the rent There the words of the condition were performed for the feoffees had granted the rent and yet he had not performed the condition for all the Justices there held that all the feoffees ought to have granted the rent and so it should be sure for there the third might have the land by survivor and he might avoid the rent and also more then two parts of the Mannor were not charged with the rent and so the intent is not performed though the words be M. 22. H. 6. f. 10. So if a man be bound to enfeoff me of the Mannor of D. and he maketh a feoffment ro another of parcell of it and then enfeoffeth me of the Mannor he hath performed the words but yet he hath not performed the intent which was that I should have had all the Mannor as it then was H. 3. H. 7. 4. So a remainder was limited to B. Si ipse vellet in-habitare residens esse if he would dwell and bee resident on the land during the terme there it is taken that if he was resident one week during the terme he had performed the words of the condition but not the intent for the intent was that hee should be resident all the terme 4. E. 6. ante 23. So an Abbot was Parson Emparsonee of a time c. and he had annuity for the time of which no memory runneth in right of the Parsonage and he as Abbot without naming himselfe Parson brought a Writ of annuity and counteth upon a prescription in him and his predecessors Abbots and the prescription traversed and found for the Plaintiff there every word of the Verdict is true and yet attaint lay against the Jury because he brought the Writ in the name of the Abbey and so claimed the annuity whereas he was not seised by that forme but as Parson and for that he did not claime as Parson they ought not to have found the issue with him and so the words of the Verdict and the intent of the Verdict did not agree in one M. 10. E. 4. f. 16. Ibidem in Chapmans case It is not requisite alwaies that the agreement shall be performed according to words because the intent is performed which is the principall point of the agreement Ployd f. 295. a. b As if a man be bound to pay a lesser summe upon a day certaine if I pay the summe before the day the condition is performed H. 10. H. 7. 24. So if the condition be in a Mortgage that I pay the money at such a place if I shall pay it at another place and the Mortgage accept of it it is well enough for the value is the effect So if a feoffment be made upon condition that if the feoffee doe not pay the Feoffor such a summe at such a day that then the feoffor shall enter If the feoffee before the day make a feoffment over and at the day doth not pay the summe there the second feoffee at the day may tender and pay the summe though the agreement was no other but that the first feoffee shall pay the summe Litt. vide ib. plura If a man make a feoffment on condition to enfeoff two in fee at such a time and before the time one dieth the feoffment ought to be made to the survivor and his heires onely for the intent which appeareth in the condition Ployd f. 345. 4. H. 7. f. 127. Every one who groundeth an Act with discretion hath an intention in the inception and neither beginneth any thing but to some end and in the progression hath the same intent and so in the consummation so as the same intention is the cause of every part and therefore the intention is principally respected in all humane acts and especially in those which concerne the disposition of our estates and in feoffments and grants A feoffment by deed of a Mannor with an advowson appendant and no livery made the advowson passeth not yet an advowson may pass without livery but the intention and the meaning was that the Mannor and it should pass together Finch Nomot 58. A bargaine and sale of Land and a reversion by deed not enrolled the reversion passeth
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