except in case where the Owner is bound to inclose 4. E. 4 19. 10. E. 4. 7. But if a man erect a wall part on my Land and part on his own if I distroy that on my Land and the rest by that meanes falleth downe it is excusable If a Feoffment be made to two joyntly one of them cannot dereigne the warranty without the other 48. E. 3. 17. Yet if a villaine and another purchase joyntly and the Lord of the villaine enter into a moyety he may dereigne the Warranty alone for therein the severance groweth by act in Law He that commeth into a Taverne and will not goe out in reasonable time or distraine for rent and killeth the distresse shall be a wrong doer ab initio 12. E. 4. 8. Because he misdemeaneth that the authority the Law giveth him Otherwise it is if I lend my horse to one to ride to York and he rideth him further yet the riding further is not unlawfull neither a generall action of Trespass lyeth against him upon the accord upon the case because he misdemeaneth but the authority that another hath given him Finch Nomot f. 47. If I be distrained and pay my rent and after am denied to have my goods delivered an action of Trespasse or detinue lyeth 21. H. 7. If I deliver a chest to one who breaketh it Trespasse lyeth 2. H. 8. If a Sheriff maketh an arrest and returneth not the Capias an action of Trespasse lyeth 8. E. 49. An executor commandeth the taking of the goods of the Testator and refuseth to prove the will a Trespasse lyeth 8. E. 4. 9. The Sheriff seiseth the goods of one outlawed and doth not charge himselfe in account the Outlawry being reversed or the party pardoned he shall have an action of Trespasse against the Sheriff 21. H. 7. 23. Injuria illata incorpus non potest remitti Reg. I. C. injury which is offered to the body cannot be remitted and the reason given by the Civilians is quia nemo membrorum suorum Dominus because no man is Lord and Master of his members but the power of them appertaine to God our Creator and the Prince our Protector which accordeth with the reason of the common Law which maintaineth as Bracton saith quod cita membra sunt in postate Regis as it is in the record of 19. E. 1. Rot. 36. vita membra sunt in manu Regis that the life and member of every Subject are under the safe-guard and protection of the King to the intent they may serve the King and their Country when occasion shall be offered Nay the Lord of a villaine for the cause aforesaid cannot maihme his villaine but the King shall punish him for mayming of his Subjects by Fine Ransome and Imprisonment untill the Fine and Ransome be paid for that hereby he hath disabled him to doe the King service Coke com f. 127. a. And therefore also doth the Law more carefully provide for the preventing and punishing of such forcible injury in particular between person and person because as Coke com f. 161. b. Max. paci sunt contraria vis injuria forcible injuries are most contrary to the quiet and repose of the Common-wealth which is the publick felicity both of Prince and people As if one doe but menace another with a weapon or staff or if he stretch out his arme or give any other token whereby his intention of striking doth appeare though never a stroake be given yet is it actionable 22. Ass Pl. 60. And upon an assault the Writ was Quare insultum fecit vulneravit maihemavit and though the injury did not appear to be a maihm yet was it allowed 43 E. 4. For the Law favoreth the Plaintiff in such Actions And though force be an enemy to peace yet is it a maxime in our Law Quod quisque in tutelam corporis sui fecerit jure fecisse videatur Fulb. l. 1. f. 91. whatsoever any one doth in defence of his body it seemeth to be done by Law according to the opinion of the Poet. Judice me fraus est concessa repellere fraudâ—m A maque in armatos sumere jura sinunt I doe conceive it a good fraud to be To repell fraud and lawfull eke for me To take up armes ' gainst those I armed see As 2. H. 4 8. Bract. If any man beat me I may lawfully beat him if I cannot escape without stâ—ips wounds or maihmes Nay 9. E 4. 3. I may beate him in defence of my goods or wife contrary to the resolve of 43. Ass 39. That it is not lawfull for me to beat him if I may escape with my life And 9. E 4. A servant may justify a battery in defence of his Master and 17. E. 4. 4. He that cometh in company of him who maketh the assault or cometh in to aid him is a principall Trespassor and if a Justice of Peace see a man doing of an assault he may presently arrest him by commandment or word to the intent that he may find surety of peace 9. E. 4. 3 And by the civill Law if any one do keep or nourish a Masty Dog Beare or Fox or some like beast which doth hurt or damnify another man he that receiveth the hurt shall recover damages against the Owner of the beast Fulb. l. 1. f. 81. And so at the common Law if a man hath a Dog which killeth Sheep and hath notice of the condition of the Dog the master shall be punished for it as may be gathered out of Dyer 28. H. 8. f. 25. Pl. 162. Otherwise if he be ignorant thereof or if it be done without the Masters incitation ibidem f. 19. And whereas in many cases that concerne Lands and Goods the Law doth deprive a man of present remedy and rather then to suffer an inconvenience turneth him over to a further remedy yet if the question be of a personall paine the Law doth give him present remedy because he holdeth no damage a sufficient remedy for a corporall injury which ground as Sir Francis Bacon ingâ—niously observeth some of the Canonists do aptly inferr out of Christs sacred mouth Amen corpus est suâ—ra vestimentum verily the body is more worth then rayment where they say vestimentum comprehendeth all outward things appertaining to a mans condition as Lands and Goods which they say are not in the same degree with that which is corporall Bacon Max. f. 30. As if a Sheriff make a false returne whereby I loose my Land yet because of the inconvenience of drawing things to delays if the Sheriffs returne should not be credited I am excluded of my averrement against it and am put to my action of deceite against the Sheriff and Summoners 5. E. 4. 80. But if the Sheriff upon a Capias returne a Cepy Corpus quod languidus est in prisona I may come in and falsify the returne of the Sheriff to save my imprisonment 3. H. 6. 3. So if a man
3. and is all one as Sceglius saith with a Topicall Axiome for which reason Sir Edward Coke giveth it this latine Etymoligy that they are called Maximes Quia maxima est eorum dignitas Coke com certissima authoritas atque quod maxime omnibus probetur They are also sometimes called Eruditions as by Dyer f. 66. It is a common erudition that in that County where the wrong is commenced the Action shall be brought which name also received its Origin from the Romans But they are many times called grounds as Dyer f. 30. There is another ground of Tenure in chief that it ought to be immediately from the King and ought to begin and take his Originall creation by the King himself and by none of his Subjects with infinite others which name only hath the sound and sense of an English Notation and therefore is this name prefixed to the Title of the Author most proper to our Law and Language For a ground is a foundation in Law upon whose reason the structure of many particular Cases doth stand But now the Name or Shell is cracked and opened the Kernell and nature of the thing may more clearly be discovered And this also must be by distinction which is the prime way of instruction for qui bene distinguit bene docet and therefore premise that there are grounds and principles of essence and being from which things have their beginning and constitution and so are all causes the grounds and principles of their effects and there are grounds and principles of knowledge which are universall propositions by which as the more worthy and better known other things are conceived which are the materiall subject of â—hiâ— Treatise Arist 1. post And these are either 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 naturall or positive as the Phylosopher distinguisheth them naturall grounds and principles are those to which the humane intellect by its native propensity doth assent without any ratiocination and are either speculative or practick speculative are those which immediately appertaine to contemplation as impossible est idem esse non esse it is impossible for the same thing to be and not to be totum majus est sua parte the whole is greater then the part and practicall are those which reflect on the honesty and manners of men as parentes sunt colendi Parents are to be honored non est faciendum alteri quod tibi non vis you ought not to doe that to another you would not have done to your selfe So vim virepellere licet it is lawful to repel force by force both which are called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 common notions these saith the Phylosopher are called prime principles quia non ab alijs sed a seipsis fidem habent because they have not their credit and authority from others but from themselves and of these especially is the rule cited by Sir Edward Coke to be understood principia probant non probantur Coke com 343. because the proofe ought to be from an higher cause and there is nothing more supreme then a principle yet if any be so absurd to deny them they may be proved a posteriori or by induction as if one should deny totum esse majus sua parte it may be proved by the examination and proportion of every particular part and if any one should deny the fire to be hot let his hand be put to it and it is proofe sufficient Thetick and positive grounds and principles are those which are placed in Arts and Sciences to manifest and prove their propositions and conclusions and are drawn from the secondary Law of nature and reason Dod. Eng. Lawy. 208. and therefore by Cicero are called consequentia naturae as the others prima naturae and by Sir John Doderidge primary and secondary propositions primary which are known notions whose clearnesse and evidence causeth every one to yeild to their consent and secondary which are descended and derived from the branches as from a root or rivers from a Fountaine as sublata causa tollitur effectus the cause being taken away the effect also ceaseth qui tacet consentire videtur he which is silent seemeth to consent And these generall grounds and propositions are the foundations of all Arts and Sciences for the course and proceeding in every one of them is deduced from generall grounds and precepts which are so necessary that without them we cannot attaine to the knowledge of the Species Dod. Eng. Law f. and individualls for the Physitian when he undertaketh the cure of a malady in some singular person he effecteth it not by sense and Symptomes but by reason and Aphorismes and so also doth the Legist who though he exerciseth his practise on particular mens cases yet doth he judge of the right by universall grounds and maximes Coke com f. 11. which therefore by Sir Edward Coke are called the grounds of Art and conclusions of reason Ployd f. 29. and by Mr. Ploydon the foundation of the Lawes Fortesc de Leg. Ang. f. 21. and conclusions of reason so also saith Sir Iohn Fortescue that the principles and efficient causes of our Lawes are certaine universalls which the learned in the Lawes of England call grounds and maximes Yet is not the Art and Science of the Law of the like certainty with other Arts and Sciences by reason of the variable condition of the subject whereupon it is imployed consisting onely upon a mans changeable and inconstant conversation from whence the grounds and knowledge of all Lawes are in generality derived and upon which they are commonly exercised and therefore to that purpose saith the Phylosopher Arist 1. Eth. c. 3 that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 honest and just things of which the politick and civill Science considereth contain in them so great differences and errors as they seem only to consist by Law and opinion and not by nature whereupon Sir John Doderidge judiciously collecteth that it is almost impossible to make any secondary ground of Law but that it will faile in some particular case whence springeth this often used assertion non est regula quin fallit there is no rule but faileth and therefore the ordainers Dod. 3. L. f. 209. and interpreters of Lawes respect rather those things which may often happen and not every particular circumstance for which though they would they should not be able by any positive Law to make provision By reason whereof they doe permit the Grounds and Maximes of the common Law upon argument and disputation of reason to be restrained by exceptions Yet doth not the exception so framed upon any ground or rule to which it is annexed impeach the credit of the said ground but as Sir Edward Coke and Sir John Doderidge firmat regulam in omnibus casibus non exceptis Coke com Dod. E. Laws f. 210. corroborateth the rule in all cases which are not excepted
that he had an intention to kill another person Ployd Com. f. 474. b. So if an impoisoned apple be laid in a place to poison I. S. and I. D. cometh by chance and eateth it this is murder in him that laid it because in the ministration of it he had a malitious intent of death which is still connexed to his person because he was the originall founder of his death But if a man lay venome in diverse parts of his house to kill Rats and a person cometh and eateth it and dyeth of it it is not felony in him because he was void of any malitious intent to hurt any reasonable creature but otherwise it is if he had ministred it to kill a reasonable creature and another reasonable creature had been slain by it that he intended not and he shall be punished for it because he had an evill intent vide ibidem plura in Saunders case And if a man perswade another to kill himself and he be present when he doth so he is a murderer for his evill intent Bac. Max. f. 60. If I discharge a Caliver with a murtherous intent at I.S. and the peece breaketh and striketh into my eye and killeth me I am felo de me because I had a murtherous intent and yet had no intention to hurt my selfe ibidem Res profecto stulta est nequitiae modus Coke l. 11. f. 86. b. In the case of Monopolies it is a foolish thing verily to imagin any meane in iniquity As the sole trade of any mechanicall Artifice or any other monopoly is not onely a damage and prejudice to those who exercise the same trade but also to all other Subjects for the end of all those Monopolies is the private gaine of the Patentees and though provisions and cautions be added to moderate them yet it is meer folly to think that there is any measure in mischeife or wickednesse Ibidem Excessus in requalibet jure reprobatur communi Coke l. 11. f. 44. a. Excesse in every thing is disallowed in the common Law for all vertuous actions consisteth in the meane and vicious in the excesse and extreame and the Law advanceth that is good and virtuous and suppresseth what is evill and vicious Some Courts may fine and not imprison as the Court of the Leet and some can onely amerce as the County Court Hundred Court and Court Baron and some Courts may fine imprison and amerce as the case shall require as the Courts of Record at Westminster or else where for no Court can fine and imprison but a Court of Record F. N. B. 37. b. Yet all Amercements and Fines which be in the excesse are contrary to Law as Magna charta c. 14. Excessive Amercements are against Law Nullus liber homo Amercietur nisi secundum quantitatem delicti no Free-man may be amerced but according to the quantity of his offence if Fines of the Copy-holder of a Mannor be uncertaine the Lord cannot exact expressive and unreasonable fines and the Copy-holder may deny to pay it and the reasonablenesse of the fine shal be determined by the Justices c. Quam rationabilis debet esse finis non definitur sed omnibus circumstantijs inspectis pendet ex justiciariorum discretione how reasonable the fine shal be is not defined but all the circumstances being inspected it dependeth upon the discretion of the Justices If tenant in dower hath villaines or tenant at will which are rich and they by excessive tallages and fines make them poore or exuls it is adjudged to be contrary to Law and to be wast 13. H. 3. Title Wast 135. F. N. B. 178. b. because it is ad exhaereditationem to the dis-inheritance of him in the reversion So excessive distresses are prohibited by the common Law 41. E. 3. f. 26. For the act de articulis super Chartas non capietur gravis districtio extendeth to the King onely So excessive and outragious aid is against Law as appeareth by the Statute of W. 1. cap. 35. Plus peccat author quam actor Coke l. 5. f. 99. the Author offendeth more then the actor The Statute of 5. Eliz. c. 9. hath two branches the first is against procurors of perjury and that is in matter depending in suit by Bill Writ Action or Information so as the procurement of perjury upon enditement is out of that branch the second branch is a purview against those who commit perjury by his or their depositions in any Court mentioned or being examined in perpetuam rei memoriam though that clause be generall and not restrained by any words to such particular suites by Bill Writ Action or Information as the first was yet in good construction that branch shall have reference to the first and shall be expounded by it otherwise the party who suborneth perjury and procureth him who committeth the perjury shall passe without punishment which shall be contrary to reason and the intention of the makers of the Act and some say that the author offendeth more then the actor and therefore was Flowre who was endited upon the Statute of 5. Eliz. for perjury in giving false evidence to the grand inquest upon an enditement of Riot by the Judgement of the Court was discharged of that enditement ibidem Peccatum peccato addit qui culpae quam fecit patrocinia defensionis adjungit Coke l. 5. f. 49. b. He addeth offence to offence who adjoyneth a Patronage of defence to a fault he hath committed As he who doth wrong and at the first confesseth the fault and obeyeth the commandment of the King by his Writ shall not be amerced and therefore pendenter facit praecepto legis obtemperat he doth wisely who obeyeth the precept of the Law but every one who doth wrong and being commanded by the Writ of the King quod juste sine dilatione reddat c. that he justly and without delay restore c. and he unjustly maintaineth the wrong of Record in the Court of the King and with great delay constraineth the demandant by the course of Law addeth offence to offence in his unjust Patronage of the defence of it and therefore shall be amerced Excusat aut extenuat delictum in capitalibus quod non operatur idem in civilibus Bac. Max. f. 314. In capitall causes in favorem vitae the Law doth excuse or extenuate the fact of the offendor except the malice of the will and intention appeareth but in civill Trespasses and injuries the Law doth rather consider the damage of the party wronged then the malice of him which was the wrong doer As the Law maketh a difference between killing a man upon malice fore-thought and upon present heat but if I give a man slanderous words whereby I damnify him in his fame and good name it is not materiall whether I use them upon suddaine choler and provocation or of set malice but in an action upon the case I shall render damages alike So if a man be killed
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
proferentem accipienda sunt Bacon Eliz. f. 11. As if I demise omnes boscos meos in villa de Dale for years this passeth the soile 14. H. 8.28 H. 8. Dyer 17. And if I sowe my Land with Corne and let it for for yeares the Corne passeth to my Lessee And if I grant ten pounds rent to Baron and Feme and if the Baron dye the Feme shall have three pounds rent because these words rest ambiguous whether I intend three pounds by way of addition or three pounds by way of deduction out of the rent of ten pounds it shall be taken strongest against me that it is three pounds addition to the ten pound of which more hereafter So Coke fol. 303. b. Ambiguum placitum interpretari debet contra proferentem An ambiguous Plea shall be taken strongest against the pleader for every one is presumed to make the best of his own Case and Coke l. 10. f. 50. Ambigua responfio contra proferentem est accipienda the Bishop of Sarums Case vide ibidem In obscuris secundum magis similius est judicandum vel quod plerumque inspici solet Regula I. C. and Coke l. 4.13 14. Sensus verborum ex causa dicendi accipiendus est sermones semper accipiendi secundum subjectam materiam In obscure and dark sayings we are to judge according to that which is most likely and which is wont to be and the sense of the words is to be collected from the cause of the speech and to be taken according to the subject of the matter which rule seemeth to qualify and moderate the other two vide ibidem S. Cromwells Case as first in words the Plaintiff bringeth an action upon the case for calling of him Murderer to which the Defendant said that as he was speaking with the Plaintiff concerning unlawfull hunting the Plaintiff confessed that he had killed diverse Hares with Engins to which the Defendant answered that he was a murtherer innuendo a murtherer of Hares and it was resolved that the justification was good for upon an action of slander the likeliest sense of words is to be taken and collected out of the occasion of the speech Coke ibidem And so in Deeds as if I have a free Warren in my land and let my Land for life not mentioning the Warren yet the Lessee by implication shall have the Warren 32. H. 6. which is the more likely meaning for otherwise the Lessor would have excepted the Warren Vnivocum denoteth words of a certaine and distinct signification and expresseth the thing cleerly without any obscurity or Ambiguity of which the Law taketh especiall notice for that certainty in all contracts and conveyances is the cause of quiet and setlement of estates but incertainty is the author of variance and dissention from whence we have these notable grounds and maximes Misera est servitus ubi jus est vagum Coke l. 5. f. 42. a. God forbid that the inheritances of men should depend upon incertaines and it is a miserable servitude where the Law is wavering and therefore Ployd f. 28. a. In every Common-wealth it is necessary and requisite that things should bee certainely conveyed for certainty engendreth repose and incertainty contention The occasions of which contention our Law foreseeing hath prevented and therefore ordained that certaine ceremonies should be used in the transmutation of things from one man to another and namely of Frank-tenements which are of greatest estimation in our lawes to know the certaine times when things do passe and therefore in every Feoffment the Law ordeineth that livery and seisin shall bee made and in every grant of a reversion or rents that attornement should be made which are points certaine containing time wherefore it is well observed by Sir Edward Coke in his Preface to the second part of his Reports that in all his time there have not beene moved in the Courts of Justice of England two questions touching the rights of descent escheats or the like fundamentall points of the common-Law so certaine sure and without question are the principles and grounds thereof That as Sir John Davis in his preface there is no art nor science which standeth upon discourse and reason which hath her Rules and Maxims so certaine and infallible and so little subject to diverse interpretations as the common Law of England Whence Sir Edw. Coke is bold to pronounce that the Common Law of England is not incertaine in the abstract but in the concrete and that the incertainty thereof is hominis vitium non professionis the imperfection of man and not of the profession and lib. 6. f. 43. a. in particular blameth hee the subtile inventions imaginations of men in the practise of uses which have introduced many mischiefs inconveniences contrary to the ancient common law which hath certain rules to direct the estates and inheritances of men and therefore is it without comparison better to have Estates and Inheritances directed by the certaine rule of the common Law which harh beene the ancient true and faithfull servant to this Common-wealth then by incertaine imaginations and conjectures of any of those new inventors of uses without any approved ground of law or reason Coke l. 6. f. 43. a. And therefore in all cases law and equity will that incertainty bee avoided as the author of contention and that there bee an end of all controversies according to equity and right which is the finall intention of all Lawes Coke l. 8. 53. And Coke l. 1. f. 85. a. The Judges ought to know the intention of the parties by certaine and sensible words which are agreeable and consonant to the rules of Law as if Land bee given by deed to two to have and to hold to them and haeredibus it is void for the insensibility and incertainty and though it hath a clause of warranty to them and their heires that shall not make the first wordes which are incertaine and insensible to bee of force and effect in Law although his intent appeareth but his intent ought to bee declared by words certain and consonant to Law So Coke comment f. 20. b. If a man letteth Lands to A. for life the remainder to B. in taile the remainder to C. in forma praedicta the remainder is void for the incertainty And therefore Ployd f. 272. a. giveth this ground that every contract sufficient to make a Lease for yeares ought to have certainty in three limitations in the beginning of the terme in the continuance and in the end of the same all which ought to be known at the beginning of the Lease and the Lease that wanteth them Mr. Brown said is but bibble babble vide ibidem Fullers case and Coke l. 6. f. 35. the Bishop of Bathes case Ployd f. 14. a. If I give all my mony in my purse to I. S. hee cannot have an action for it unlesse hee alledge the certainty of it so as without certainety the action is not maintainable according to
est haeres viventis and the remainder is onely good upon this contingent if I. S. dieth during the life of the lessor Coke com f. 378. a. But if lands be given to A. and B. so long as they joyntly together live the remainder to the right heires of him which dieth first and warranteth the land in forma praedicta A. dieth his heire shall have the warranty and yet the remainder vested not during the life of A. for the death of A. must precede the remainder and yet shall the heire of A. have the land by descent vide ibidem 378. b. Justum non est aliquem ante natum mortuum facere Bastardum qui toto tempore suo pro legitimo habebatur Coke l. 8. f. 101. a. b. It is not just to make any one a Bastard borne before marriage being dead who all his life time was accounted legitimate For by the law of England if such a Bastard which the law termeth Bastard eigne doth continue possession in peace that is if the mulier make no entry for the Bastard eigne or continuall claime and so dieth in peace his issue is become right heire and will bar the mulier because he was legitimate by the lawes of the holy Church For though the subsequent marriage doth not make a Bastard legitimate quoad consuetudinem regni as â—ract phraseth it in regard of the custome of the Realme yet quoad sacerdotium in respect of the Canon law it doth and in this case of legitimation which in law is so precious and of so great estimation the law respecteth neither infancy or other defects in the mulier but preferreth legitimation of blood before any benefit of temporall inheritance and therfore the law saith that by the death of Bastard eigne in peace his issue is become right heire and by consequence the mulier is barred and the descent doth not onely take away the entry but the right also and therefore descent in this case shall be a bar to right as descent of services rents reversions expectant upon an estate taile shall bar the right of the mulier 14. E. 2. Bastardy 26. but not the entry or claime of the disseisee But if a Bastard eigne dieth without issue so as the land doth descend the mulier shall have it ibidem and if the Lord by escheat entreth this shall not bar the mulier because no descent Coke com 244. If there be Bastard eigne and mulier puisne and the father maketh lease for life reserving rent and the bastard eigne receiveth the rent and dieth having issue this shall barr the mulier Coke com f. 15. a. If a man hath issue a son being a Bastard eigne and a daughter and the daughter is married the father dieth and the son entreth and dieth seised this shall barre the feme covert and the descent in this case of services rents reversions expectant upon estate or for life whereupon rents are reserved c. shall bind the right of the mulier but the descent of these shall not bind them that right have to an Action Coke com f. 244. a. So if the Bastard dieth seised and his issue endoweth the wife of the Bastard the mulier cannot enter upon tenant in dower for his right was barred by the descent ibidem If the Bastard eigne entreth into land and hath issue and entreth into religion this descent shall bar the right of the mulier ibidem If a man hath issue two daughters the eldest being Bastard eigne and they enter and occupy peaceably as heires the law shall not adjudge the whole possession in the mulier so as if the Bastard had issue and died her issue shall inherit and if they make partition that partition shall binde the issue for ever Coke com 244. a. b. And such a Bastard being impleaded or vouched shall have his age If a man hath issue a Bastard eigne or mulier puisne and the Bastard in the life of the father hath issue and dieth and then the father dieth seised and the son of the Bastard entreth as heire to his Grand-father and dieth seised this descent shall bind the mulier ibidem b. If the Bastard enter and the mulier dyeth his wife being privement with a Son and the Bastard hath issue and dyeth seised the Son is borne his right is bound for ever but if the Bastard dyeth seised his wife enseint with a Son the mulier entreth and the Son is borne the issue of the Bastard is barred ibidem 244. a. If the bastard eigne entreth and the King seiseth the Land for some contempt committed by the Bastard for which the King receiveth the profits of the Land and the Bastard dyeth and his issue upon petition is restored to the possession the mulier barred for ever But when the King seiseth for a contempt of the Father c. if the issue of the Bastard eigne upon petition be restored for that the seisure was without cause the mulier is not barred for the Bastard could never enter but the possession of the King in that case shall be adjudged in the right of the mulier Coke ibidem f. 245. b. Bastardus nullius est filius Littleton Coke com f. 203. a. aut filius populi Coke l. 6. f. 6. A bastard is the Son of none or the Son of the people according to the common report Cui pater est populus pater est fibi nullus omnis Cui pater est populus non habet ille patrem To whom the people Father is to him is Father none and all To whom the people Father is well Fatherlesse we may him call For as the civilians pater est quem nuptiae demonstrant he is a Father whom the espousalls and nuptialls shew so to be And therefore if a wife have a bastard it shall not be a villaine or if a villaine have a bastard by a woman and marrieth her the bastard is no villaine because he is nullius filius though some hold the contrary as Bracton and Britton for in both cases the issue at the common Law is a bastard quasi nullius filius Coke com f. 123. a. And though a bastard be a reputed Son yet is he not such a Son in consideration whereof an use may be raised because in judgement of Law he is nullius filius Dyer 374. And for the same reason where the Statute of 32. H. 8. of wills speaketh of children bastard children are not within that statute and a bastard of a woman is no child within that Statute where the mother conveyeth Lands unto him Dyer 313. Qui ex damnato coitu oriuntur inter filios non computantur Coke com f. 3. b. Who are borne of condemned or unlawfull copulation are not to be reckoned among children as a man maketh a lease to B. for life the remainder to the issue male of B. and the heires males of his body B. hath issue a bastard Son he shall not take the remainder because
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
of Magna Charta c. 11. might enter into anothers Woods and cut the Trees for reparations of Castles but by that Statute he did restrain himself so to do Ployd 3. 22. b. vide ibidem plura A Mil-stone that is lifted up to be picked and beaten cannot be distrained for it remaineth parcel of the Mill which is a thing for the Common-weale weale 14 H. 1 25. Things brought into an Inn Faire or Market shall not be distrained 22 E. 4. 49. No more shall Cloath lying in a Taylors Shop or an Horse that is a shooing shall not be distrained for the rent issuing out of the Shop Coke Com. f. 47. a. When a man and a woman are riding on a horse or Axe in a mans hand cutting of wood and the like they are for that time priviledged and cannot be distrained Valuable things shall not be distrained for rent for benefit and maintenance of Trade which by consequence are for the Common-weale and are there by authority of Law as an horse in the Hostrey nor the materials in a Weavers Shop for making of cloath nor sacks of Corn or meal in a Mill nor in a Market nor any thing distrained for damage feasant for it is in custody of the Law and the like So Beasts belonging to a Plow averia carucae shall not be distrained and no man shall be distrained for the Instruments of his Trade or profession as the Axe of a Carpenter or the Books of a Scholar whilest Goods or other Beasts may be distrained ibidem Coke l. 10. f. 139. b. An action of the case was brought against D. and counts that D. was seised of certain lands in Kent by reason of which his ancestors and all the Ter tenants from the time whence c. have made and repaired when it shall be materiall so many perches of the walls of the Sea in K. c. and for default of repairing c. the water entred and over-flowed the lands ef the Plaintiff the Defendant traversed the Prescription and it was found for the Plaintiff and that there was a default in the Wall for not repairing by which the Plaintiff recovered Damage and a Writ awarded to the Sheriff to distrain B. to repair the wall there where it was materiall Note this judgment in an action of the case and the reason is pro bono publico for Salus populi est suprema lex and therefore is that part of the judgment in this action of the case that the Defendant shall be distrained to repair the wall ibidem Publica utilitas privatorum commodis est praeferenda Reg. I. C Publicum bonum privato est praeferendum the publick utility and good is to be pâ—eferred before private gaine and profit and therefore shall be more favourably expounded by the Law then when it is onely for private Coke comm f. 181. b. As the Tenant holdeth of the Lord by fealty and one grain of wheat c. and the Lord purchaseth part the whole shall be extinct because it is entire but if an entire service be pro bono publico as Knights-service Castle-guard Cornage c. for defence of the Realm or to repair a Bridge or a way or to keep a Beacon or to keep the Kings Records or for advancement of Justice and Fence as to aid the Sheriff or to be Constable of England though the Lord purchaseth part the service remaineth and so it is pro opere devotionis pietatis for works of devotion and piety Coke comm f. 149. a. Coke l. f. 63. a. In the Chamberlain of Londons case the Inhabitants of a Village may make Ordinances or by-Lawes for the reparation of a Church or of an high-way or any such thing as is for the publick good generally and in such case the greater part shall bind all without any custome So Corporations cannot make Ordinanccs or constitution or By-lawes without custome or charter unlesse it be for things which concern the publick good as reparations of Churches common-waies or the like So in Corporations such Ordinances or Bylawes are allowed by Law which are made for the due execution of the Lawes and Statutes of this Realm and for the good or due government of the body Corporate And the Ordinance of the Mayor Aldermen and Comminalty of London that all Citizens Free-men and strangers shall not put any broad cloath to sale within the City before it be carried to Blackwell Hall to be viewed and searched so that it may appear to be vendible and that hallage be paid for it to wit 1 d. was good and allowable by Law because it was for the better execution of the Statutes made in that behalf without deceit and also that the assesment of the said peny for hallage was good and reasonable because it was pro bono publico vide ibidem plura Coke comm f. 181 b. If a Charter of Feoffment be made and a Letter of Attorney to four or three joyntly and severally to deliver Seisin two of them cannot make Livery because it is neither by the four or three joyntly nor any of them severally but if the Sheriff upon a Capias directed to him make a Warrant to foure or three joyntly and severally to arrest the Defendants two of them may arrest him because it is for the execution of Justice which is pro bono publico jura publica privato promiscue decidi non debunt and publick Lawes ought not promiscuously to be decided by the private ibidem Coke com f. 165. a. If a Castle that is used for the necessary defence of the Realm descend to two ot more Coparceners this Castle might be divided by Chambers and Rooms as other houses be but yet that it is pro bono publico defensione regni for the publick good and defence of the Realm it shall not be divided for the right of the Sword as Britton saith which suffereth not division that the force of the Realm do not fail so much but Castles of habitation for private use and that are not for the necessary defence of the Realm ought to be parted between Coparceners as other houses ib. And for the same reason a woman shal not be endowed of a Castle that is maintained for the necessary defence of the Realm because it ought not to be divided and the publick shall be preferred before the private but of a Castle that is for private use and habitation she shall be endowed Co. com f 31 b. vide ibidem plura So a protection cum clausula volumus is of two sorts the one concerneth services of War as a Kings Souldier c. the other wisdome and counsell as the Kings Ambassador and Messenger pro negotiis regni both these being for the publick good of the Realm private mens actions and suits must be suspended for a convenient time for the publick is to be put before the private but the cause of granting the protection must be expressed in the protection to the end
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
7. Quicquid non excutitur justitia non putatur Reg. I.C. Coke l. 6. f. 52. a. Quicunque aliquid statueret parte inaudita altera aequum licet statuerit haud aequum fecerit whatsoever is not discussed and tried is not to be reputed Justice and if any one shall decree any thing one of the parties being not heard though he doth decree that is right yet hath he not done that is just and equall in Bosewels case where it was resolved that no Incumbent shall be removed by a Quare Impedit or an Assise of Darrein presentment purchased within the six moneths unlesse the Incumbent be named in the Writ although the Incumbent be in a defeasible Title for then he shall be removed and adjudged not being heard Quicunque aliquid c. So Coke l. 11. f. 99. a. in James Baggs case though the Mayor and Counsel-chamber of Plymmouth have lawfull authority either by their Charter or Prescriprion to remove any one from his freedome and that they have just cause to remove him yet if it appear by the return that they have proceeded against him without hearing him to answer to what is objected or that he was not reasonably warned such a removement is void and shall not bind the party In ancient times where any were found guilty by the good people by Inquest for any mortall Offence the King gave order to execute them without any answer Mirror of Justice which custome may seem to be derived from the Dictators power among the Romans who had authority to cast any into prison and to punish him with death indicta causa And which also was a custome among the Gauls De Laud. l. Aug. 4. 82. whom now we call French which as Fortescue saith in his time remained among them to wit That the King usually calling his Nobles into his Counsel-chamber without any form of judgment were adjudged criminous by the Conscience of the Prince and thereupon were they presently by the Marshals servants put into Sacks and in the night by them precipitated into deep rivers and so drowned And which custome also was used in Almaine But King Alfred in compassion of the frailty of man who cannot keep himself from sinning without the assistance of the grace of God abrogated that custome and decreed that no Appelle or Inditee should be condemned or executed without answer Mirror of Justice l. 2 f. 3. which still continueth and therefore saith Coke l. 2. Epist ad lectorem are our Lawes commended above other which punisheth not the greatest Offenders though it be for Treason but by just and equall proceedings in Law according to the ancient Lawes of England declared by the generall Charter Nulli vendemus nulli negabimus justitiam rectum And therefore saith Fortescue De Laud. l. A. f. 122. It is part of the charge of the Judges Oath not for any command of the Prince either by Letters or by word of mouth to deviate from Justice or to deny right to any but to minister justice and right indifferently to all as well enemies as friends and accordingly saith he Queen Elizabeths charge to the Justices was That for no commandment of hers common right should be disturbed or delayed Whereas in other Countries the Judges had rather misconster the Law and do injustice then to displease the Kings humour according to the old Sarchasme Ad libitum regis sonuit sententia legis For which unlawfull and wilfull perversness some of our later Kings have been blamed and for which as Frossard saith l. 2. c. 3. Edward the second was condemned quod in audita causa aliquos proceres de medio tollebat that he did punish with death some of his Nobles without hearing their case neither was the stupendious proceeding of Henry the eigth against his new created darling the Lord Cromwell commendable Hen 8. f. 71 or allowable though acted by Parliament who being accused of high Treason and Heresie as Godwin saith inauditus damnatur is condemned without hearing his answer Neither is David's unjust judgment in condemning Mephibosheth being absent 2 Kings 16. and unheard upon the false accusation of Siba approved for whosoever shall decree any thing the other being not heard though the decree be right yet it is not just and equall Quicunque jussu judicis aliquid fecerit non videtur dolo malo fecisse quia parere necesse est Coke l. 10. f. 70. b. He that doth any thing by commandment of the judge seemeth not to have done any thing with a fraudulent intent because he needs must obey And therefore the Officers and Ministers of a Court are not to be punished for executing the precept and warrant of the Court whereas if they had refused to do it the Court would have punished them for their disobedience As in 16 E 3. 70. it is taken for a Maxime that the thing which the Officer doth by Precept or warrant of the Court cannot be said to be against the peace Dr. Stud. f. 150. The Officers of the King are bound to execute the Writs of the King at their perill But this diversity is to be taken that when a Court hath jurisdiction of a Cause and proceedeth erroniously there the party who sueth or the Officers and Ministers of the Court that execute the precept and proces of the Court are not liable to an action but when the Court hath no jurisdiction of the Cause and all the proceeding is coram non Judice actions do lye against them without any regard to the precept or proces for when he hath no jurisdiction he is no judge and it is not of necessito obey him who is no judge no more then a meer stranger for it is a rule Extra terratorium jus dicente non paretur impune He that obeyeth in prescribing Lawes beyond his jurisdiction shall not go without punishment Co. ibid. f. 57. A B. And therefore 22 E. 4.33 Pigot said that if the Court hath not power and authority their proceeding is coram non Judice As if the Court of the Common Bench hold plea in an appeal of death robbery c. and the Defendant is attaint it is coram non Judice but if the same Court in an a plea of debt award a Capias against a Duke c. which by the Law lyeth not against him and it appeareth in the Writ it self yet if the Sheriff arrest him by force of that Capias because the Court hath jurisdiction of the Cause the Sheriff is excused though the writ is against the Law And so if a Capias commeth unto him without an Originall and he serveth it it is excusable in false imprisonment Dyer f 60. pl. 26. So if a Iustice of Peace make a Warrant to arrest one for felony which is not indicted though the Iustice of Peace erre in the Warrant of it yet he that maketh the Arrest by force of that Warrant shall not be punished by a Writ
other Souldiers but English L. 1. de repub c. 21. though he had enjoyed and lived in peace for the space of thirty yeares whereas the French were continually conversant exercised in the Italian Warrs yet that prudent King who knew well that he had so ordered the Realme that in the time of peace the feats of armes were practised and military discipline exercised both attempted the conquest of France and fortunately effected it The same Encomium doth he give of Epominondas who redeeming the Thebans from the servitude of the Spartans so instructed them in the forme of military discipline that through their aid though effeminated by service he gave the Spartans a mighty defeate and overthrow for the care and faith of Domestick and Native Souldiers is greater and firmer and for the honour of their Prince and glory of their Country will fight more fiercely ita ut consensu quodum saith Seneca protegendi amandique regem conspirasse intelliguntur so as they are conceived to have conspired with an unanimous consent of protecting and loving their King Whereas mercenaries and strangers are commonly tumultuous and refractory and love not to be commanded Tac. 4. hist Tac. theagiae or governed but as Tacitus omniae ex libidine agunt love to doe what they lift and which is most perilous are perfidious non fide non affectu tenentur are not held nor kept by faith and affection but there faith dependeth on fortune which inclining to the Enemy thither doe they for the most part bend their mindes and forces by which meanes as one truly externo pessundata milite regna and as Curtius insidiosae fiunt illorum domini Kingdomes are sometimes ruined and by treachery they themselves become Lords and Masters of their leaders L. 1. f. 13. Polibius relateth that Carthaginians waging Warr with the Romans had their army mixed with Spaniards French and fugetive Grecians and that having made peace with the Romans intended to dismiss them who amounted to the number of twenty thousand which they perceiving suddenly drew themselves into a military body and made head against the Carthaginians and forced some of their Cities to subject their Forts to their Forces in so much as the Carthaginians were compelled to crave aid of the Romans to resist and repell them through whose assistance Hamilcar circumvented and inclosed them in narrow streites and places so as more of them perished by famine then the sword and Hamilcar by the consent of all was called salvator patriae the Saviour of his Country to this purpose I could plaustra exemplorum accumulare accumulate Cart-loades of examples how dangerous a thing it is to call in strangers to their aid and especially in any great number which plainely appeareth by the perfidiousnesse of the Saxons who though they came at the first as Mercenaries yet once admitted and sensible of their own power they soone grew Masters and Lords of the Brittons and therefore Livy giveth this sound counsell to them who are necessitated to introduce the aid of strangers that their Captaines be so circumspect quod non ita externis credant auxillijs ut non plus sui roboris suarumque pâ—oprie virium in castris habeant Livy l. 25. that they doe not confide so much in externall aid that they have no more of them in their army then their own strength and power will keepe in awe Multum potest in rebus humanis occasio plurimum in bellicis Poly. b. Coke com 71. a. Occasion and opertunity prevaile much in humane things but most of all in Marshall affaires In ancient time Kings had the supremacy over others of commanding 2. Reg. c. 8. or commencing War as appeareth by the sacred History yet sometimes upon necessary cause if there be danger in delay or the soveraigne Commander be absent War may be undertaken without the commandement of the Prince if it be upon necessary occasion of just defence which by the Law of nature is granted to every one So though the Consull Marcellus had the supreame command in Sicily yet L. Pinarius who was Captaine of the Garrison of Enna in Sicily when he did foresee the revolt and defection of the Citizens of Enna to the Carthaginians Livy l. 24. and he could not send Ambassadors to the Consull Marcellus though he was not far from thence suddenly he did kill all the Carthaginians by which Act Enna was still retained for the Romans and Marcellus did not disallow the fact And therefore Cicero commendeth the enterprise of Octavius Caesar who not expecting the decree of the Senate did of his own head make War against Antonius for if he had then omitted the time of battaile he did well foresee that the common Wealth would be suppressed and that then nothing could be decreed by the Senate and the Senate did after allow by publick authority the War undertaken by Octavius of his own private advice so Scipio Nasica did deserve exceeding commendation who voluntary without any decreed authority did offer himselfe a Captaine to all good Romans for the suppressing of Tibeâ—ius Gracchus and his treacherous confederates for it is necessary in such perturbations and tumults rather to obey times then customes for in peace we must obey custome in War the times and occasions Inter arma silent leges Coke l. 9. Ep. ad Lectorem When Armes and Weapons sway The Lawes are at a stay War was first brought in by necessity for in that decisions in Courts of Law and the determining of controversies by their rules could not be between two strange Princes of equall power unlesse they should willingly agree to such an order because they have no superior nor ordinary Judge but are supreame and publick persons and therefore the judgement of Armes is necessary because such War against them cannot be bridled by Law and by this and many other cases War is lawfull though many mischeefes doe staine it for good doth ensue of it and Princes by it obtain their rights and rebells are reduced to obedience and peace accorded and that whose end is good is also good it self to which and to common equity without bloodshed and these injuries of war men do seldome attain But when the Lawes of War and Arms do rule the civill Lawes of peace are silent and of little or no force As in the Conquerors time the Lawes did seem to be silent for in all the time of his Raign either his Sword was alwaies drawn or his hand was continually on the Hilt ready again to be drawn and as Bacon the Conqueror got by right of conquest all the lands of the Realm into his own hands in demesne taking from every man all Estate Terme property and liberty of the same except Religious and Church-lands and the lands of Kent and still as he gave any of it out of his own hand he reserved some retribution of rents or services or both to him and to his Heirs which reservation
me non possum nec per alium What I cannot do my self I cannot do by another 55 Quod initio non valet tractu temporis non convalescet That which in the beginning is vitious or invalid cannot by tract of time be made good or valid 66 Quod non valebit in principali in accessorio consequenti non valebit What doth not avail in the principall shall not avail in the accessory and consequent 59 Quod dignius est prius est minus digno What is more worthy is before that which is lesse worthy 72 Quoties duplici jure defertur alicui possessio repudiatâ— novo jure quod ante defertur superest vetus When a possession is cast upon one by a double right the new right being rejected which was given before the old remaineth 74 Quoties in verbis nulla est ambiguitas ibi nulla expositio contra ipsa verba fienda est Where there is no ambiguity in words therein no exposition is to be made contrary to the words themselves 427 Quod est contra rationem est illicitum What is contrary to reason is unlawfull 419 Quod est inconveniens contra rationem non est permissum in lege What is inconvenient and against reason is not permitted in the Law 419 Quod in minori valet valebit in majori What availeth in the lesse shall avail in the greater 123 Quod constat clare non debet verificari What appeareth clearly ought not to be verified 138 Quod remedio destituitur ipsa re valet si culpa absit What is destitute of remedy in the matter it self it doth avail if the fault be absent 225 Quod quis que in tutelam corporis sui fecerit jure fecisse videatur Whatsoever any man shall do in defence of his body it seemeth lawfully to have done it 275 Quod alias bonum justum est si per vim vel fraudem petatur malum injustum est VVhat otherwise is good and just if it be attempted by force or fraud is evill and unjust 284 Quod necessarium est licitum What is necessary is lawfull 317 R. RAtio est anima legis Reason is the life of the Law 417 Receditur a placitis juris potius quam injuriae delicta maneant impunita VVe ought to recede from the grounds of Law rather then offences and injuries may remain unpunished 391 Res per divisionem melius aperiruntur Things are better opened by division 133 Res inter alios acta alteri nocere non debet A thing acted amongst some ought not to hurt another 272 Rerum progressus ostendant multa quae nec praecaveri aut provideri non possunt The progresse and proceedings of things demonstrate many things which in the beginning could not be foreseen or provided for 311. 452 Res judicata pro veritate accipitur The thing adjudged is taken for truth 417 Rex est caput salus Reipublicae a capite bona valetudo transit in omnes The King is the head and safety of the Common-weale and from the head good health is conveyed to all 364 Rex est vicarius minister Dei in terra Omnis quidem sub eo ipse sub nullo nisi tantum sub Deo The King is the Vicar and Ministor of God every one is under him and he under none unlesse it be under God 358 S. SAlus populi suprema lex The safety of the people is the chiefest Law Sapiens incipit a fine A wise man beginneth with the end 461. 86 Sape locus in delicto auget vel minuit culpam In an Offence the place doth often augment or diminish the punishment 113 Securius expediuntur negotia commissa pluribus Offices and businesses committed to many are more safely discharged 368 Semper praesumitur pro legitimatione puerorum filiatio non potest probari at is alwaies presumed for legitimation of Children and filiation or begetting of Children cannot be proved 168 Semper qui dolo fecit quo minus haberet pro eo habendus est ac si habet Alwaies whosoever shall give or grant any thing by fraud wherby he may seem not to have it is to be esteemed he hath it 290 Semel malus semper praesumitur esse malus in eodem genere mali VVho hath once been evill is alwaies presumed to be evill in the same kind of evill 300 Sensus verborum ex causa dicendi accipiendus est sermones semper accipiendi sunt secundum subjectam materiam The sense of the words is to be taken out of the cause of the speech and speeches are alwaies to be taken according to the subject of the matter 28 Semper ita fiat relatie ut valeat dispositio Let the relation be so that the disposition may avail 49 Si defit obedientia non adjuvat lotus If obedience be wanting the place releiveth not 114 Sicut beatius ita majus est dare quam accipere As it is a more blessed thing so it is a greater thing to give then to take 120 Sicut natura in operationibus nihil facit persaltum Ita nec lex As nature in his operations doth nothing by skips so neither the Law 145 Si mulier nobilis nupserit ignobili de sinet esse nobilis If a Noble woman marry an ignoble man she leaveth to be noble 151 Si plures conditiones ascriptae sunt donationi conjactim omnibus est parendum ad veritatem copulativum requiritur quod utraque pars sit vera If many conditions be joyntly annexed to a gift all of them must be obeyed and to a copulative truth it is required that every part be true 11 Singulare distributive sumptum aequat plurale A singular distributively taken equalleth the plurall 23 Solum Rex hoc potest de jure potest The King can do onely that that he can do by right 242 Substantia prior dignior est accidente The substance is more worthy and before the accident 43 Suprema potestas seipsum dissolvere potest The supream power may dissolve it self 84 Subsequens matrimonium tollit peccatum praecedens The subsequent marriage taketh away the precedent Offence 177 Sublata causa tollitur effectus The cause being taken away the effect alwaies is taken away 317 Summum jus summa injuria The severity of Justice is the extremity of injury 253 T. TEmpus est mensura motus secundum prius posterius Time is the measure of motion according to priority and posteriority 99 Tempora mutantur nos mutamur in illis Times are changed and so in them are we 105 Tempus edax rerum Time is the consumer of things 105 Thesaurus domino competit regi non domino libertatis nisi sit per verba specialia Treasure belongeth to the Lord the King and not to the Lord of the liberty unlesse it be by special words 403 Tributum est victoriae proenuum poena belli Tribute is the reward of Victory and penalty of VVar 407 Totum praefertur unicuique parti The whole is preferred before every part 93 Turpis est pars quae cum suo toto convenit Foule and deformed is the part which agreeth not with the whole 95 Vbi major pars est ibi est totum VVhere the greater part is there is the whole 34 Vbi non est gubernator dissipabitur populus VVhere there is no Governour the people shall be dispersed 355 Verba ita intelligenda sunt ut res magis valeat quam pereat VVords are so to be understood that the thing may avail and not perish 317 Verba accipienda sunt in mitiori sensu VVords are to be taken in a favourable sense 29 Veritas nihil verâ—tur nisi abscâ—ndi Truth feareth nothing but to be hidden 282 Vigi anâ—ibus non dormientibus leges subveniunt The Lawes do help them that are watchfull and waking and not those who are sleepy and negligent 319 Unumquodque principiorum est sibimetipsi fides Every Principle is of credit to it self 71 FINIS