deteriorem nequaquam Cok. Com. 141. a. The Church exerciseth the Office of a minor can make its condition better but not worse for it is the cheifest reason which makes for Religion And therefore in all cases a Parson or Vicar of the Church for the benefit of the Church hath a qualified fee but in many cases to doe any thing to the prejudice of the Church he hath in effect but an estate for life As a Parson Vicar c. may have an action of Waste and in the Writ it shall be said ad exheredationem Ecclesiae So the Parson that maketh a Lease for Life shall have a consimili casu during the life of the Leasee and a Writ of Entry ad communem legem after or a Writ ad terminum qui preterijt or a quod permittat in the debet which no man can maintaine but Tenant in Fee-simple or Fee-tayle vide But a Parson cannot make a discontinuance for that should be to the prejudice of his Successor to take away his Entry and drive him to a reall action but if he dye the Successor may enter notwithstanding the discontinuance And if a Parson make a Lease for years reserving rent and dyeth the Lease is determined neither will the acceptance of the Successor make it good vide 5. Prelatus Ecclesiae suae conditionem meliorem facore potest sine consensu deteriorem vero nequaquam sine consensu Coke Com. fol. 103. a. As neither Bishop nor Parson cannot disclaim or devest any fee is invested in his house or Church But an Abbot or a Prior with his Covent or a Bishop with his Chapter or a Parson with his Patron and Ordinary may passe away any Inheritance for the wisdome of the Law would not trust one with the Inheritance of the Church which alwayes maketh for religion and the good of the Church 6. Dies dominicus non est dies juridicus Ployd 265. The Sabbath day is no day for Law As upon a Fine levyed by Proclamations according to the Statute of 4. H. 7. C. 24. If any of the Proclamations be made on the Sabbath day all the Proclamations be erronious for the Justices must not sit upon that day but it is a day exempted from such Businesses by the Common-Law for the Solempnity of it to the intent that the people may apply themselves that day to the service of God No Plea shall be holden Quindena Pasche because it is alwayes the Sabbath but shall be Crastino quindenae Pasch Fit Nat. fo 17. f. Upon a Scire facias out of the Common Bench an Error was assigned because the Teste of the Scire facias was upon a Sunday And it was adjudged Error because it was not Dies Juâ—idicus Dyer 168. No sale upon a Sunday shall be said to be sale in a Market overt to alter the property 12 E. 4 8. Although Sunday is not Dies Ju idicus and that no judiciall Act ought to be acted on that day yet ministeriall Acts as to arrest or serve Process are allowed for otherwise peradventure they should never be executed and God forbid that things of necessity should not be done on that day for bonum est bene facere die Sabathi but this distinction and exception is taken away by a late Act made in the long Parliament of England yet did that Parliament in case of necessity once sit upon the Lords day which is the high Court of Justice and from which there is no appeale By the Statute of Magna Charta Cap. 14. no spirituall Parson shall be amerced according to his spirituall benefice but according to his Lay fee Fitz. Nat. br f. 76. b. And that in favour of Religion 7. Omnia quae movent ad mortem sunt deod inda Coke l. 5. fol. 110. b. any unreasonable thing killing a man by misadventure is forfeited to the King and every thing moveing with it is forfeited also to the King As if a man being upon a Cart carrying Faggots and as he is in binding them together falleth downe by the motion of one of his Horses in the Cart and dyeth of that both that and all the Horses in the Cart and the Cart it selfe are forfeited 8. E. 2. 307. A man falleth from a stack of Corne and dyeth it is forfeited 2. E. 3 140. If any Horse strike one and I â—lien my Horse and he dyeth my Horse is forfeited because the forfeiture shall have relation to the stroke given Ployd 260. b. Kâ—llaway 68. b. but it is not forfeited untill the matter be found on record and therfore it cannot be by prescription and the Jurors that find the death must also finde and apprize the goods Coke l. 5. fol. 11. b. And therefore are they called Deodands quasi deodanda that is Elâ—emosynas eroganda to be disposed in Almes and workes of Charity 17. E 4. 2. and for that reason doth the King grant them to his Almoner to the intent they should be disposed of by him accordingly Actus dei nemini facit injuâ—iam Cok. Com fol. 148 So much is the reason of the Law ruled by Religion as it will not permit the Act of God to prejudice any one as if Tenant for another mans life granteth a Rent-charge to one for one and twenty years cesty que vie dyeth the Rent-charge is determined and yet the Grantee during the years may have a Writ of Annuity for the Arrearages incurred after the death of cesty que vie because it determined by the Act of God Cok. lâ—b 8. fol. 72. Hales Case An Office is found that the Heir is in ward who after he was of ful age tendreth his Livery and was admitted to it the Heir within three moneths which is the usuall time to sue out his Livery bargaineth part of his Lands by Deed inrolled and within the three moneths dyeth the bargaine was adjudged good and that the Heire should have no prejudice because the suing of his homage and suing out of his Livery without default in him was become impossible by the Act of God Impotentia excusat lâ—gem and is all one as if the King had taken the Homage of the Heire when the Heire made his tender vide ibidem pâ—uâ—a Coke lib. 8. fo 63 a. If an House fall by tempest or other Act of Gâ—d the Lessee for life or years hath a speciall interest to take Timber for the builâ—ing of the house againe if he will for his habitation but if he pull downe the house he shall not have Timber to builde it because it is his own Act and the Lessor shall have an Action of Waste Coke lib. 1. 98. a. If a Lessee Covenanteth to leave the Wood in as good plight as it was at the time of the Lease and after the Trees are subverted by Tempest he is dischar ed of his Covenant causa qua supra Cok. l. 5. fol. 86. a. Bâ—unfeilds Case If the Defendant in debt dyeth in Execution the Plaintiff shall have a new
Execution by Elegit or Fieri facias because the death of the Defendant is the Act of God which prejudiceth no man Nunquam prospere succedunt res humaâ—ae ubi negliguntur res divinae Cok. Com. fo 54 b. humane affaires never succeed well where divine rites are neglected And therefore doth that great Legist prescribe these Rules to the Students of the Law for their dayly practice Sex horas somno totidem des legibus aequis Quatuor orabis des epulisque â—uas Quod super est ultra sacris largire Camaenis To sleep six hours allot to the Laws twice three Four to your prayers two to your Feasts may be And what remains give to the Muse Divine Sect. 2. IN the next place the art of Grammer is to be ranked which amongst the Liberall Siences hath the Precedency for it is Janua omnium artium the portall by which we enter into the knowledge of all Arts and by which we communicate our selves and studies to others hence proceede these rules and maximes Ignoratis terminis ignoratur ars Cok. Com. 177. a. As in Schoole Divinity Civill Law Logick and other Arts there are words of Art which are more significant then Grammaticall so are there in our Law termes drawn from the Legall French which are more apt and significant to expresse the sense of our Lawes then any other Which words of Art being not conceived that Art cannot be comprehended Whence he inferreth that the significations of words in all Arts and Sciences are necessary which Mr. Littleton in his Tenures ordinarily observeth for certainly names which are instituted and imposed according to the rationall Analogy with things by wise understanding men are as Plato calleth them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 instructive instruments by which we are guided and directed to the knowledg of the thing And therefore in our discourse and disputation this ever is to be observed principium in omni re disputatione est nomen the words are first to be considered Cok. Com. 68. a. 2. Loquendum ut vulgus Coke l. 4. fo 46. a. words shall be taken according to their vulgar and ordinary construction as though a person attainted be a person convict and more Yet in the Statute of 25 E. 3. c. 2. It is said that an attaint by virdict is taken as convict by virdict so also it is taken 3. H. 7. c. 1. and oftentimes in common speech the person convict is termed Attaint for we are to speak as the people use to speak a grant of one hundred Acres of Land in such a Feild and sixty in such a Feild and twenty Acres of meadow in such a Meadow the Acres shall be taken as they are known by estimation But if I have a Close by estimation twenty Acres and by the Statute eighteene if I grant ten of these Acres he shall have them according to the measure of the Statute Popham fol. 191. And therefore saith Ployd fo 169. It is the part of Judges to know the common Language of the people and to adjudge of those onely according to the common course For he that taketh a Lease for Lands in the North Country called a tack and in Lancashire it is called a firme-holte and in Essex a Week and if he have taken it by these words used in that Country there is no reason that he should loose his Farme because he hath used no other Language then is used in his own Country But the Judge ought to search and know the sense of these words and shall judge them according to the common usage otherwise he shall make great disturbance and confusion in the Common Wealth ib. for verba valent usu sicut nummi and Cok. l. 6. fol. 64. b. concludeth that it is well said in Hills and Granges Case 170. It is the office of Judges to take and expound the words which the common people use to express their intent according to their intent and not according to the true definition vide ibidem plura Sr. Moyle Finches Case and so Coke lib. 7. fol. 11. b. Calvins Case whereas diverse books and acts speake of the Leagiance of England all these and others speaking breefly in a vulgar manner and not pleading are to be understood of the Legiance due from the people of England to the King and therefore loquendum ut vulgus sed sentiendum ut docti for no man will affirme that England it selfe taking it for the continent thereof doth owe any legiance and faith or that any allegiance or faith should be due to that But it manifestly appeareth that the Legiance and faith of the Subject is proprium quarto modo to the King ibidem 3. Ad proximum antecedens fiat relatio Dyer fo 14. b. It is a rule in the Grammar that when a thing is dubious and may be referred to a double intent let the relation be to the next Antecedent As the Condition of the Obligation for marriage money was That if the wife dye before Michaelmas without Issue dyed adjudged the Obligation was void for then living relates to the first Antecedent that is Michaelmas and not to the death of the woman ibidem Dyer fo 46 b. A man was endicted of Felony per nomâ—n I. S. de in C m. pre serviens W. B. in eodem Com. Yeoman and for defect of a sufficient addition to I.S. he was discharged upon the Enditement for Yeoman ought to be referred to the master as the next Antecedent and not to I.S. and servant is not a sufficient addition 9. E. 4. So one Sibylla Batersby nuper de T. in Comitatu Ebor. uxor Johanis Batersby nuper Spinster was endited of Felony and murther and for defect of the addition she was discharged for Spinster being an indifferent addition for man or woman for in Norfolke there are diverse men which are worsted spinsters must be referred to Johanis Batersby the next Antecedent Tenant for life the Remaindâ—r to B. in Tayle the Remainder to C. in eadem forma this is a good estate Tayle for idem refertur proximo antecedenti Cok. Com. fo 20. b. Ad proximum antecedens fiat relatio nisi impediatur sententia Cok. l. 2. fol. 71 a. Sr. Cromwells Case and Dyer fo 13 b. although the rule be true that the relation for the most part ought to be ad proximum antecedens yet many times if it be hindred by the sense and meaning it is otherwise for sensus est anima legis Cok l. 5. f 2 sense is the soul of the Law and hath a speciall sway and rule in all Cases so a man is bound to abide the award of I. S. and he awards that the one party shall pay before such a feast ten pound to another and that then he shall make him a release Tunc shall not be referred to the Feast but to the time of the payments cleerly So I.S. bargaineth and selleth his Land to I N. for ten pound predictus Johanes Covenanteth
manerium and if there bee two distinct Mannors then shall they bee taken in the plurall number tota illa maneria that the grant be not void and 32. E. 3. A Fine was levied de maneriis B. and H. and the conclusion was quare praedictum manerium B. and H. ingressus est and good by averment that B. and H. were but one Mannor and though a Writ shall abate for false Latine because any one may purchase a new Writ at his pleasure yet in a grant it shall not because hee cannot purchase a new grant at his pleasure As 4. H. 6 f. 16. the Writ was Henricus dei gratia Rex Angliae Dus Heberniae whereas it should have beene Dns and for it in congruity the Writ did abate but in a Deed that should have beene good enough and so in a fine 9. E. 3. warranty was made in a fine eidem galfrido uxori suae where that should have been iisdem and yet good vide ibidem plura Co. l. 11. f. 3. and Coke com f. 146. ab but because such exceptions doe properly appertaine to Writs Deeds and Fines which have heretofore been composed and levied in the Latine tongue and that by the Act of 9. April 1651. it is enacted that all Patents commissions and all proceedings whatsoever in any Courts of Justice within the Common-wealth of England and which concerne the Law and administration of Justice be made and framed into the english tongue I will cease to heape more cases upon this rule they being chiefly in use for preterite Deeds conveyances and proceedings though not altogether uselesse in our English language for it also hath its grammaticall constructions and sometimes abreviations and therefore it is also in the above said Act enacted that mistranslations or variation in forme by reason of Translation or part of proceedings already begun being in Latine or part in English shall bee no error or avoide any proceedings by reason thereof Sect. 3. THe Law hath little relat ionto Rhetorick and is too strict an argumentative for that copious various and tropicall art Ornari res ipsa negat contenta doceri Doctum genus in doctorum hominum ad doceberniam vix docti But like ruggid and knotty tymber rejects the rhetoricall plaine and outward ornament which moved the critticke Erasmus to deride it and the civilian Hottaman to despise it not apprehending the depth and profundity of it for the Law as Sir Edward Coke is a deep well out of which every one drawes according to the strength of his understanding Cok. com f. 7.1 a. he which reacheth deepest seeth the admirable secrets of the Law which though in the beginning it seemeth difficult yet when the student diveth to the depth it is delightfull and therefore as the same Author in another place saith The generous student Cok. com f. 5. a. ought not to bee discouraged when he meeteth with knotty cases nescit enim generosa mens ignorantiam pati but will proceed on his reading with alacrity to know how to worke into with delight those ruffe Mines of hidden Treasure Coke com f. 235. to which worke as he also saith the knowledge of the liberall arts is requisite especially the art of Logick to labour in that various and intricate Labyrinth for it teacheth a man not onely by just argument to conclude the matter in question but to discover between truth and falsehood and to use a good method and reasonably to speake to any question for it is nothing else but ars rationandi the act of reasoning Coke com f. 344. h. and then wee are said to know the law when wee apprehend the reason of the law from whence arise these grounds and maxims and first from notations which by the consent of all Writers appertaine to Logick Notationes sunt quasi verae rerum notae Fons log and Bracton L. 4. c. 20. Ideo imposita sunt nomina ut demonstrent voluntatem dicentis utimur notis vocis ministerio notations are as it were the true notes of things sor therefore were they imposed that they might demonstrate the will of the speaker and wee use them as notes in the ministry of our Language as Socage is servitium socae i.e. carucae the service of the Plow because that the word soca was used for the Plow and the name of the court of Pypowders was derived from the dusty feet of the commers markets and faires being most frequented in Summer Lam. Arch. so religious houses were called monasteria of the solitarie life therein led which in latter daies was nothing lesse quia as one pleraque monasteria nihil minus sunt quam solitudines Dod. so the feudists in the civill law deduce homagium from hominium for by that name hee doth professe himselfe his man and Client And such notations and etymologies are not to be wrested but must bee answerable to the sound of the words and applied to the sense of which it is said by Coke com f. 68. b. that the right interpretations and etymologies of words are necessary which not only demonstrate their native conceptions but from them often produced arguments which are frequent among the Civilians as well as by the common Lawyers as Cicero arguing for Opimius then Consul useth this notation si Consul est qui consulit patria quid alius est Opimius Ployden 343 b. Testamentum est testatio mentis for of those two words is it compounded and there is no other testation of the Testators mind here but for the twelve Acres in Rigdens case So Cok l. 8. 37. a. a Barrator is derived of two legall words bar which signifieth the bar in Court where causes are debated and retium which signifieth a crime and offence because a common barrator is chiefely an offendor in moving and maintaining of quarrels at barres in Courts and Coke l. 10. f. 128. a. reditus dicitur a reddendo quia retro it to wit to the Lessor or Donor and that is the reason that the Rent so reserved is not due before the day of payment because it is to be rendred and restored of the issues and profits vide Yet as Doderidge such arguments are not to be used at all times and occasions but when necessity requireth the same or apt consequence doth offer a fit occasion or rather as Coke l. 7. f. 27. b. Calvins Case Arguments drawn from Etymologys are too weake or too light for Judges to build there Judgments on yet when they agree with the Judgment of the Law Judges may use them for Ornaments From the Predicable GEnerale nihil ponit generale nihil certum implicat Cok. l. 2. f. 33.34 in Doddingtons Case a generality determineth nothing and a generality implyeth no certainty as if a common person be bound to devise or grant all his Lands which he hath within the tenure of I. B. in W. the Obligor may say that he hath no Land there for
kill her hushand part of which her husband and her Father having eaten were greivously sick whereof her Father complaining to the said Martin Martin stirring the electuary did eate part of it the one and twentieth of May and dyed the 22th of May and it was resolved that Agnes was guilty of the Murther of the said Martin for the Law conjoyneth the murtherous intention of Agnes in putting poyson into the electuary to kill her husband with the event that followed upon it to wit the death of the said Martin for the putting of poyson in the electuary was the cause of the poysoning and death of the said Martin was the event for that is the event which followeth the cause and are called events because they come from the cause and the stirring of the electuary by Martin without putting in the poyson by Agnes could not have been the cause of his death ibidem Frustra expectatur eventus cujus effectus nullus sequitur it is in vaine to expect the event where no effect followeth Coke l. 5 f. 15. b. Cawdrys case As if an excommunication under the Popes bull is not of force to disable any man in England and that if it being the extreame and finall end of any suite in the Court of Rome be not to be allowed in England it consequently followeth that by the antient common Law of England no suite for any cause though it be spirituall arising within this Realme ought to be determined in the Court of Rome for in vaine an event is to be expected of which no effect followeth and that the Bishops of England are the immediate Officers and Ministers to the Kings Courts ibidem Plus virium habent argumenta ex effectis Fons Log. Arguments from the effects are of greater force and therefore doth the Law commonly conster things according to the effects As if a Deed be delivered by an infant it cannot be delivered againe at his full age for it took some effect before and was but voydable 1. H. 6. 4. But a deed delivered by a Feme-covert or a release delivered to one who had nothing in the Land may be delivered againe to wit when shee cometh to be sole or the party to have somewhat in the Land for the first delivery was meerly void and of no effect at all From the whole and the part TOtum praefertur unicuique parti the whole is preferred before either part Coke l. 3. f. 41. in Ratcliffs case As the blood which is between every Heire and his Ancester maketh him Heire for without blood none can inherit and therefore it is great reason that he who hath the whole and entire blood shall inherit before him who hath but part of the blood of his Ancester because by the order of nature the whole is to be preferred before the part And therefore saith Bracton Proptâ—r jus sanguinis duplicatum dicitur haeires tam ex parte matris quam ex parte patris propinquior soror quum frater de alia uxore that from the double right of blood as well from the part of the father as from the part of the Mother the Sister is said to be the neerer heire then the brother of the other wife and Britton saith that the right of blood in this case maketh the Female to exclude the male ibidem And therefore by the common Law of England if a common person have issue a Son and a Daughter by one venter and a Son by another venter and dyeth seised of Lands in Fee-simple and the eldest Son entereth into the Land and dyeth without issue the Sister of the whole blood shall inherit to him and not the brother of the halfe blood Coke ibidem 40. b. Vbi major pars ibi totum where the major part is there is the whole 21. E. 4. 27. 14. H. 8. 27. The Deane and major part of the Chapter maketh the Croporation and their act is the act of the Corporation though the others doe not agree which accordeth with the rule of the Canon Law authoritas potestas capituli consistit in majore pare ejus saniâ—ri sic totum capitulum facere dicitur quod facit major sanior pars Panorâ—â—tanus The authority and power of a Chapter consisteth in the greater and sounder part and so the whole Chapter is said to doe what the major and sounder part doth But here this difference is to be taken that in Colledges and Corporations the major part of the Members ought to give their voices in a distinct number and not in a confused and incertaine number as in the election of the Knights of Parliament or the Coronors or Virderors in the County Court the greater voice and acclamation is sufficient to shew the assâ—nt of the greater part of the Free-holders who make the election Ployd 126. a. So as the major part of the Chapter doth consent in making this confirmation and this consent ought to be expressed by the fixing of the Seale 14. H. 6. 17. So ought they to sit in one place and at one time for otherwise it may be called an assent and not a consent where the lease ought to be confirmed by the assent and consent of the Deane and Chapter for as the body naturall cannot make any perfect act if it be dismembred no more can a body politique but the persons which are members of it ought to be capitulariter congregati in a certaine place otherwise if they be scattered or dispersed in severall places that which they doe shall not be said to be the Act of the Corporation but factum singulorum as 15. E. 4. 2. a. where the major part of the Monkes had subscribed their hands to a deed of the Abbot but it was not expressed that it was done with the assent and consent of the Covent it was said to be done by those particular persons which had subscribed and not by the Corporation and such a deed shall not bind the house yet the Deane and Chapter are not confined to their Chapter-house but they may meet to and make their Acts elsewhere and therefore it is holden 21. E. 4. 26 That where a Deed did beare date in domâ— capituli averrement might be that the deed was delivered at another place yet the major part ought to be present in the same place and therefore the election of Coroners ought to be in pleno comitatu as appeareth by the Writ de coronatore eligendo So the consent of the major part of the Chapter ought to be at the same time simul semel and not scatteringly and upon severall daies for it is not a consent unlesse it be simul for consensus est voluntas multoâ—um ad ques res pertinet simul juncta for consent is the will of many joyned together concerning those things which appertaine unto them Davis f. 48. vide ibidem plura Turpâ—s est pars quae cum suo toto non convenit It is a foule and deformed
a fine with proclamations now by the present right he hath five years by the first favant and if after these five years A. doth dye he shall have other five years for the next remainder by the second savant which giveth them as to other persons which have a future right and if after those five yeares B. doth dye he shall have other five years by the other remainder for saith he it is the text of the civil Law when two rights meet together in one person it is all one as if they were in severall persons Ployd ibidem vide ibidem plura in the Lord Zouches case Exception Coke l. 7. Calvins case f. 14. b. This rule holdeth not in personall things that is when two persons are necessarily and inevitably required by Law as in the ease of an alien borne there is for in the case of an alien borne you must of necessity have two severall legiaries to two severall persons and no man will say that now the King of England may make a League with the King of Scotland and that because in the Kings person there concur two distinct Kingdomes it is all one as if they were in severall persons vide ibidem f. 2. Coke l. 4. f. 118. a. Though a Bishop when he is translated to an Arch-Bishoprick or a Baron be created an Earle now he hath both those dignities and as it is commonly sayd when two rights concurr in one person it is all one as if they were in severall persons yet the Act of 21 H. 8. was alwayes construed strictly against Non-residence and Pluralities as a thing much prejudiciall to the service of God and the instruction of his people and therefore within that Act an Arch-Bishop shall have no more Chaplaines then as an Arch-bishop or an Earle then as an Earle for though they have diverse dignities yet is it but one and the same person to whom the attendance and service shall be made and if a Baron be made Knight of the Garter or Warden of the Cinque Ports he shall have but three Chaplaines in all Et sic de similibus quia difficile est ut unus homo vicem duorum sustineat because it is an hard thing for one man to undergoe or sustaine the Place and Office of two persons Coke l. 4. In the case of the death of one within the Verge the Coroner of the houshold of the King and the Coroner of the County shall joyne in the Inquiry and if one be Coroner of both he shall well execute this authority Quilibet potest renunciare juri pro se introducto Coke Comment f. 99. a. Every man may renounce or refuse a Law made or brought in for himselfe as a man seised of lands may at this day give the same to a Parson Bishop c. and their successors in frank-almoigne by the consent of the King and the Lords mediate and immediate of whom the Land is holden for every one may renounce a Law brought in for himselfe and f. 223. b. The Statute of 32. H. 8. giveth power to tenant in tail to make a lease for three lives or twenty one years yet if a man make a gift in tail upon condition that he shall not make a lease for three lives or twenty one years the condition is good for the Statute doth give him power to make such leases which may be restrained by condition and by his own agreement for this power is not incident to the estate but given to him collaterally by the act according to that rule in Law Quilibet potest c. Coke l. 10. f. 101. a. In the Act of 23. H. 6. c. 10. the words upon reasonable sureties of sufficient persons are added for the security of the Sheriff and therefore if he will take but one surety be it at his perill for he shall be amerced if the Defendant appeareth not and for it the Statute doth not make the obligation void in such case for the said branch which prescribeth the forme requireth that the obligation shall be made to the Sheriff himselfe c. by the name of their office and that the prisoners shall appeare in which clause no mention is made of the sureties so as the intent of the Act was that for that it was at the perill of the Sheriff to leave it to his discretion to take one or more for his indemnity and peradventure it may be better for him sometimes to take one that is sufficient then two others and though the sureties or surety have not sufficient within the same County as the Statute mentioneth yet the obligation is good enough for those words of the Act as to that point are more for counsell and direction of the Sheriff then for precept and constraint to him and that for the safety of the Sheriff for if the Defendant cannot find two sufficient sureties having sufficient within the same County the Sheriff is not bound to let him to bail and this resolution agreeth with the ancient rule to wit Quilibet potest c. An Orphant in London exhibited a bill in the Court of request against another for discovery of part of his estate Phesant prayed a prohibition upon the custome of London but it was resolved that he might sue in what Court he would and wave his priviledge there 19. C. B. R. But this case extendeth not to any thing that is against the Common-wealth or common right Coke com f. 166. a. Summum jus summa injuria Ployd 160. b. The rigor of the Law is the extremity of injury if a man make a lease of a messuage so as he may make his profit of his houses there within he cannot abate the houses or make wast of them by the opinion of the book H. 17. E. 3. f. 7. for the intent was not such though that the words seem otherwise and sayd to pursue the words is Summum jus which the Judges ought not to doe but ought rather to pursue the intent And for the same reason the Executors of Tenant for life shall have reasonable time to remove his goods after his decease and a man shall have reasonable time wherein he shall purchase a Writ of Journys accompt Finch Nomot Jus descendit non terra 20 H. 6. 5. The right descended and not the land and Coke Inst f. 345. a. b. There is a right which includeth an estate in esse in Conveyances which he in reversion and remainder hath and hath jus in re and may be granted to a stranger with attornement or released to him in possession as if Tenant in fee-sample maketh a Lease for yeares and releaseth all his right in the Land to the Lessee and his heires the whole estate in Fee-simple passeth and also the release to him in possession with the reservation of a rent is good and there is another right which is called a bare meere and naked right and jus adrem when an estate is turned to a right
Quare Impedit 54. but at this day it is remedied by the act 1 E. 3 c. 12. by which it is declared that because that many people may be grieved for it that Lands and Tenements held in chief of the King as all those which hold by grand Serjanty are and alien without leave have been held as forfeited hereafter in such case let a reasonable fine be taken So since that Statute at all times when Lands holden by grand Serjanty have been aliened without licence a fine hath been taken and no seisure ever made for the forfeiture and therefore no forfeiture to be taken for Custome is the best Interpreter of the Law vide etiam L. 10. f. 70. b. Consuctudo manerii est observanda Co. com f. 63. a. consuetudo loci est observanda Brac. l. 2. f. 76. l. 4. f. 28. The custome of the Mannor and the custome of the place is to be observed for there are different customes in many Mannors and places and the customes of one Mannor in some particulars commonly varieth from another And these diversities of customes have grown by reason of the severall Nations who have had government over this Kingdome Britans Romans Saxons Danes Normans which have left part of their Language and part of their usage which difference of usage and custome is to be observed in every place and Mannor for what a Copyholder may or ought to do or not to do the custome of the Mannor must direct it and if there be no custome to the contrary wast either premissive or voluntary of a Copyholder is a forfeiture of his Copyhold Co com f. 63. a. If a Copyholder for life surrender to another in fee it is no forfeiture for that passeth by surrender to the Lord and not by Livery And Copyhold Estates shall not have the collaterall qualities that the estates of the common Law have without especiall custome for the custome of the Mannor is to be observed Coke l. 1. f. 22. a. 23. a. vide ibidem plura f. 28. b. Coke l. 6. f. 67. a. In a common recovery which is had by agreement and consent of parties of acres of land the acres shall be accounted according to the customable and usuall measure of the Country and not according to the Statute De terris mensurandis made in the 33 of Ed. 1. Sir John Buntings case 1 Eliz. So if a man bargain and sell so many acres of wood they shall be measured according to the usage of the Country and that is according to twenty foot to the Rod and not according to the said act for the custome of tho place is to be observed 47 E. 3. 18. Coke l 10. 140. a in Kighleys case It was resolved cleerly that the severall Commissioners of Sewers throughout England are not bound to pursue the Lawes and Customes of Romney Marsh but in case where any particular place within their Commission have such Lawes and Customes as Romney Marsh hath there they may pursue them for the custome of the place is to be observed Consuetudo vincit communem legem coke l. 4. f. 21. Custome overcometh and mastereth the common Law and will not alwaies be ruled by its grounds for a custome and usage of time whereof the memory of man runneth not to the contrary may create and consolidate Inheritances Coke comm f. 185. b. If a man be seised of an house and possessed of divers Heir Looms that by custome have gone with the house from Heir to Heir and by his Will deviseth away the Heir-looms this devise is void for the Wil taketh effect after his death and by his death the Heir looms by ancient custome are vested in the Heir and the Law preferreth the custome before the devise 1 H 5 Executors 108. And so it is if the Lord ought to have an Heriot when his Tenant dieth and the Tenant deviseth all his goods yet the Lord â—â—all have his Heriot for the reason aforesaid And it hath been anciently said that an Heriot shall be paid before a Mortuary wherein the Lord is preferred because the Tenure is in him Co. ibidem Ployd f. 36. b. Whereas the Statute of 1 R. 2. c. 12. doth ordain that the Warden of the Fleet shall not suffer any one who is in execution to go out of Prison by main-prize bail or baston yet it is taken by equity of the said Statute thâ—t if any other Goaler who lets such a one in execution to go out of prison with mainprize bail or baston that it shall be said to be an escape But notwithstanding that it extendeth to all other Goalers so fully as though it had been expressed by plain words yet those of London use to let such go at large with baston in any place within their jurisdiction and shall not be judged an escape in them and the reason of that is not because the statute in equity doth not extend to them but the reason of it is their prescription in that point and all their customes and prescriptions are confirmed by the Statutes by which they may prescribe against the equity and words of the statute which are contrary to their customs and prescriptions as against the statute of Silva caedua and to hold Leet at other times then the statute appointeth and such others ibidem Obtemporandum est rationabili consuetudini tanquam legi coke l. 4. 38. b. Littleton Sect. 170. consuetudo ex certa causa ratienabili usitata privat communem legem We ought to obey a reasonable custom as a Law and a custom used upon a certain reasonable cause depriveth or over cometh the common Law but a custome introduced against reason is rather an usurpation then a custome coke comm f. 113. a. and it is a Maxime in our Law that all customs and prescriptions which be against reason are void coke comm f. 140. a. As if the Lord of a Mannor prescribe a custome in generall that every Tenant in his Mannor that marrieth his Daughter to any man without the licence of the Lord shall pay a fine and have paid a fine to the Lord for the time being this prescription is void for none in such case ought to pay fines but Villains vide ibidem plura So if the Lord of a Mannor do prescribe that for the time being he hath used to distraine Cattell were upon the demeans of his Mannor for Damage-feasant and the distresse to retain till fine were to him for damages at his will this prescription is void for it is a Maxime in Law Aliquis non potest esse judex in propria causa no man can be a Judge in his own case ibidem 141. a. And therefore a Fine levied before the Bayliffs of Salop was reversed because one of the Bayliffs was a party to the fine because he cannot be a Judge and a party coke ibidem So a custome that the Lord shall take for Heriot the beast of a stranger levant and couchant upon the
after be demised by Custome as a Copyhold for as continuance maketh custome discontinuance destroyeth it for unum quodque dissolvitur eodem modo quo ligatum est ibidem But a Title being once gained by prescription or custome cannot be lost by interruption of possession for ten or twenty years but by interruption in the right As a Modus decimandi was alledged by prescription time out of mind for tyth Lambs and thereupon issue joyned and the Jury found before twenty years last past there was such a prescription and that for these ten years he paid tythe Lambs in specie and it was objected that the party by payment of tythes in specie had waved the custome but it was adjudged for the Plaintiff in the Prohibition for albeit the modus decimandi had not been paid by the space of ten years yet the prescription being found the substance of the Issue is found for the Plaintiff Mich. 43. 4. Eliz. betwixt Nowell and Hicks Coke comm f. 114. b. vide ibidem plura Vbi non est gubernator dessipabitur populus Ployd 177. b. Where there is no governor the people will be dispersed and where there is no King or governor every one will doe what is right in his own eyes that is where there is no Magistrate fearing God there is no true religion or civill order for when the reignes of government are let loose to the many headed multitude an ataxy of all things will ensue and every one by rapins and robberies and as Cicero per caedem Cicero orat pro pub Sestio de jure magistratus f. 15. vulnera by wounds and slaughters will snatch and catch what they can to themselves so as one truly totum genus humanum periret si magistratus non constituerentur qui boâ—os tuerentur improbos vero coercerent all man kind would perish if Magistrates were not constituted which may protect the good and restrain the evill for government and obedience are the two Pillars of a Society without which it cannot subsist government is the office of a Prince and obedience in the duty of a Subject which are not onely necessary but profitable as the Phylosopher to rule and obey is not onely 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Arist l. 1. Pol. c. 3. necessary that impious and rebellous persons may be coerced by the sword and profitable that the upright and peaceable be encouraged by rewards and therefore as Tacitus L. 1. Histo praestat esse sub malo principe quam sub nullo it is better to be under an evil Prince then none and as Kekerman Polit. f. 21. a Tyrany is better then an Anarchy for where there is no governor the people will be out of all good order for though in the multitude of people is the honor and strength of a King yet are they murmuring gaine-saying stifnecked and rebellious if they be not by a Moses powerfully ruled and as Florus in the like case of the Romans saith F. l. 3. f. 68. Regum gentium arbiter populus ipse se regere non potest though the people be the Umpires of all Kings and Nations yet cannot they rule themselves And therefore have the Lawes of this Realme utterly exploded the election of the supreame governor because after the fate of one before another can be elected usually the seeds of dissention are sown whereby the peoples mindes are dissipated and divided the Hydra of which evills yet remaineth in the memories of men wherewith the Nobles and people of Poland were greiviously distracted concernining the election of their governour some demanding the Arch-Duke of Austria and others Sigismund for their King which at this day are revived by the valorous and just sword of the King of the Swedes But our Law to prevent such factions mischeifes and many other dis-commodities have excluded interreguum Coke l. 4. Ep. ad lectorum Com. 177. and introduced hereditary succession and such a King as Mr. Ploydon saith whose name is a name of continuance which shall last allwayes as the head and governor of the people so long as the people shall remaine and the King in that name shall never dye for as Sir Edward Coke it is a maxime in our Law Coke f. 4. Ep. ad lectorem Ployd 177. b. Regem Angliae nunquam mori that the King of England never dyeth and therefore the death of such a person as is the King is called in Law the demise of the King because that by it he demiseth his Kingdome to another and leaveth another to have the function and so the dignity continueth allwayes whichs certainly is true in respect of his politicall capacity which allwayes endureth and never dyeth And as Sir Edwaâ—d Coke Coke l. 4. Ep. ad lectorem the State of our Kingdome is monarchicall and from the beginning by the right of inheritance hath been successive which is the most absolute and perfect forme of government and therefore as Mr. Ploydon the Heir and Successor may have the terme of Soverain Lord and may be called our Soverain Lord ibidem and for this same reason the guift of a King without saying more trencheth to his Successors Finch Nomot f. 83. Yet sometimes have our Kings whâ—n as it might be upon reasonable ground presaged that in case of succession and descent of the royall issue or for some other States suspicions civil dissentions might arise to avoid future combustions have conferred their principalities to whom they pleased counting it as lawfull to appoint their Successors after them as substitutes under them Ba. Cron. 4. 27. So Edward the confessor appointed the Crowne after his decease sometimes to William the conqueror sometimes to Edgar Atheline and sometimes to Harold and Harold after his decease upon the title and appointment of King Edward was Crowned by the Arch-Bishop of Yorke and so shortly after William Duke of Normandy when he had defeated Ibidem f. 31. and slaine Harold at the battaile of Hastings claimed the Kingdome by the nomination of Edward the confessor as well as by his conquest and in these latter times the Duke of Northumberland prevailed with King Edward the sixt to appoint the Lady Jane Daughter to the Duke of Suffolke by his Letters Patents to succeed him Ibid. 451. which were suddenly vacuated by Queen Mary but the most authenticall and legall way and course in such cases was the nomination and appointment of Henry the eighth to whom the Parliament granted power by his last Wil and Testament in writing signed with his hand to make conditions limitations what he would concerning the inheritance of the Crowne who by his last Wil and Testament took order that his Son Edward should succeed him in the Crown he dying without â—ssue his Daughter Mary and she dying without issue his Daughter Elizabeth who all succeeded one another in the same order Rex est vicarius minister Dei in terra omnis quidem