principall reason inseperable truth of euery thing which the vnderstanding straineth out of the secret and hidden causes of thinges for as in hearbes if we touch them outwardly we do not finde nor feele any moisture in them but rather take them to be vrie vntill by pressing or distilling of them we wring out a iuyce proper to their nature So the Law doth conceiue and conclude many things of ordinarie contingents which common sense can not perceiue but rather imagineth them to be clean contrary to the truth whereas they may to a good vnderstaÌ„ding easily appeare to be true by the certaintie necessary coordination of their causes and reasons That this may be made euident I mean to annexe some particulars for the explaning therof 1 It is cleere by Law that a terme and a freehold of the selfe same thing may be both in one man at one time yet if this be deliuered to a superficiall vnderstanding it will seeme a paradoxe Tenant for terme of yeres maketh his executors dyeth the executors purchaseth the reuersion in this case both the terme fee-simple are in the executor to seueral purposes for the terme shal be assets to the vse of the testator the fee simple free inheritance for the vse of the executor his heires And if a man be seised of land of an estate for life the remainder to his executors for yeres he may deuise this term or assigne it And if lessee for yeres grant his terme to the wife of him in the reuersion to a stranger the inheritance of the husband can not extinguish the moitie of the terme because he hath the inheritance in his owne right the terme in right of his wife A man seised of land in right of his wife is attainted of felony the king seiseth the land pro vita viri the king hath but a chattel the wife the freehold for if a stranger enter the husband dye the wife shall haue an Assise 2 Likewise it will seeme strange though in Law reason it be true that a man should be remitted to his land to some intent yet not to an other As if a recouerie be had vpon a false title against tenant in taile the tenant in taile dyeth the issue entreth he is in of his first right against all but onely the recoueror So if tenant in taile discontinue his sonne heir apparant disseiseth the discontinuee to the vse of the father the tenaÌ„t in taile dieth the sonne by M. Chookes opinion is in his remitter against all but onely the discontinuee the issue in taile which hath good cause of a Formedon in the discender is of couin that A. should disseise the discontinuee against whom he recouereth he shall not be remitted in respect of him but shal be accompted a disseisor but against all others it seemeth that he is remitted Tenant in taile maketh a feoffement to the vse of his wife and his sonne being heire apparant to the intaile and dyeth the issue is remitted against all persons but onely the woman A title may be executed to some intent and yet not executed to an other And therefore if there be tenant for terme of life the remainder in fee to a stranger against whom a recouerie is had pro loco tempore in a Warrantia chartae brought by a stranger of other land he in the remainder dyeth the recouerer is impleaded and voucheth the heire of him in the remainder and recouereth tenant for life dyeth execution shall be â—ued against the heire of the land whereof his auncestor had a remainder because there was a remainder executed in the father to this intent at the time of the Warrantia chartae brought but to all other intents it was executory for it was not executed that the wife might be endowed nor for him in the remainder to bring a writ of right But the remainder in such cases is to some intents executed for if he in the remainder had aliened his remainder in Mortmaine the lord might haue entred and vpon such a remainder the lord may haue a Cessauit but the heire shall not haue an Assise of Mortdauncester 4 A thing may be extinct or in suspence in one respect and in Esse in an other respect the father being tenant in taile alieneth the land with warrantie and hath a rent charge in fee issuing out of the land of his sonne and heire apparant which rent discendeth to the sonne this rent is a good assets for the value in respect of the discontinuee and yet it is extinct in respect of the issue A man seised of a rent seruice is bound in statute staple and after purchaseth the land out of which the rent is issuing after execution the rent is extinct as to the conusor but in Esse as to the conusee A corrodie is graunted to I. S. for life who graunteth it backe to the grauntor for terme of yeares rendring rent the corrodie is in Esse as to the payment of the rent but in suspence as to the taking of the corrodie And it was lately ruled in one Caires case in the Court of wardes that if a man held land of the Queene by a certaine rent and the Queene graunteth the rent to a stranger who graunteth it to the tenant the rent is extinct as to the payment but in Esse as to the tenure The King seised of a forrest graunted the office of the forrester to one rendring rent and he graunteth the forrest to an other the forrester forfayteth his office yet the grauntor shall haue the rent So that it must needes be that the office to the intendment of law is to that intent in Esse And if a man graunt to an other a rent out of his land in fee vpon condition that if the grauntee or any of his heires dye their heire being wythin age the rent shall cease during the minoritie if the grauntee dye hys heire wythin age his wyfe shall haue dower but cessabit executio during the nonage But in this case it seemeth that if the heyre dye during his nonage the wyfe of the heire shall not haue dower of the rent because it was neuer leuiable by the sonne as it was by the father A man seysed of two acres of lande hath issue two daughters and dyeth now the rent is in suspence as to one moitie and in Esse as to an other moitie 5 The intendement of the Law is as stronge in a matter of law as the trueth it selfe in a matter in facto And therfore if A. be disseised and hys brother maketh a release with warrantie to the disseisee and afterward entreth into religion this warrantie shall be a barre to A. although that hee be lyuing for A. may haue his land by discent and therefore it seemeth to be reason that the warrantie should discende
vpon him as his heyre Note here of what validitie the intendement of Law is touching a ciuill death The Wardein of the Fleete who hath the office in fee dyeth seised and the office discendeth to his sonne and heire being then in prison the Law doth presently discharge him of imprisonment because he is to be at large the better to looke to others that be in pryson A man maketh a lease to one for terme of life rendring the first seauen yeares a rose and if he will hold the land any longer then seauen yeares that then he shall pay foure Markes yerely liuerie is made the lessee surrendreth at the ende of the first seauen yeares his estate was adiudged to be but a terme ab initio and no freehold and the writ of couenant brought against him for not repayring was qui tenuit ad terminum annorum If a man make a lease of land excepting the trees which grow vpon the land the trees are seuered in law for he hath no reuersion of them and if he sell them and after the sale make a feoffement the feoffee shall not haue them because they were seuered by the vendition or sale of them for by the exception they were seuered from the terme but not from the inheritance but by the vendition they were seuered from the inheritance If the Baylife of the land doe demaunde a rent seruice and the tenant denyeth it and the Baylife sayth that hee will distraine for it and the tenant sayth that hee shall not distrayne wherefore the Baylife dare not proceede further to take a distresse for doubt of death thys is a disseystn of the rent in the eye of the Lawe And if a rent seruice be warranted to one and the land doth escheat the Law as M. Finchden thinketh transferreth the warrantie to the land 6. One thing in the vnderstanding of Law may be of seuerall natures in seueral respects and so one writ may be two seuerall writs to two seuerall intents In an action of debt the declaration was of x. li. vpon a sale and v. li. which he had deliuered to the defendaut to redeliuer and it was held good because the action was in the debet and detinet and the warrantie of atturney and the essoine in this case shall be in placito debiti Quaere If a man lease land to one for terme of yeares rendring rent and the lessor graunteth his rent to a stranger and the lessee surrendreth this doth not extinguish the rent for now it is a rent seck which doth not depend vpon the reuersion And so one man to the vnderstanding of Law may haue seuerall capacities or respects For if a man disseise a feme sole being an inheritrix of certaine land and after he taketh her to wife and they haue issue and the husband is disseised and the disseisor leuieth a fine wyth proclamations the husband dyeth fower yeres after the proclamations and before the fifth yere be passed the issue being of full age and after the wife dyeth and the fifth yere passeth now the issue is bound as heire to his father yet he may haue other fiue yeres as heire to his mother to be accompted from the death of his Father So if I. S. be tenant of land for terme of an other mans life the remainder to an other for life the remainder to the said I. S. for terme of his life or in fee and he is disseised and the disseisor leuieth a fine with Proclamations and the fiue yeares incurre now is I. S. bound for the present estate but if he in the mesne remainder for life die hee shall haue other fiue yeres for the other estate So if a man haue an estate in land for the life of A. the reuersion to himselfe for the life of B. the remainder to himselfe for the life of C. and is disseised and the disseisour leuieth a fine with Proclamations he shal haue fiue yeares seuerally after euerie seuerall estate determined I. S. giueth land to A. his daughter in taile and hath issue B. another daughter and dieth A. dieth hauing issue C. a Precipe is brought against C. who voucheth to warrantie her selfe and B. as heires to the donour of the reuersion to haue the warrantie paramount in this case is C. both the vouchor and the vouchee A terme is deuised to one who is made executor he entreth this is an administration and an execution of the terme vnto him and he is both deuisee and executor A. couenanteth by Indenture with B. that the sonne of A. shal marrie the daughter of B. and that therefore B. shall giue vnto A. an 100. li. if the marriage did not take effect before such a day that then A. and his heires should stand seised to the vse of B. and his heires vntill the hundred pound be payed by A. his heires or executours B. dyeth and after the marriage taketh not effect the vse and possession of the land vesteth in the heire of B. but Quaere saith Brooke whether he shall be in ward or no for he is an heire and yet he is a purchasor If I. S. be Deane of P. I may giue him land to him and his successours and to him and to his heires there hee taketh both as Deane and as a priuate man and is tenant in common with him selfe so if a rent charge be graunted in such manner he shal ioine with himselfe in an Auowry Likewise the Lawe may deny one a benefite as he is I. S. and yet allow it vnto him as he is executor to I. N. and therefore if an executour be Outlawed or Excommunicated which be disabilities in Law yet as an executour hee may maintaine an action because he sueth and is to recouer to the vse of an other person and so an executour may haue an action of trespasse in his owne name without nameing his companion in the executorshippe if goods be taken out of his possession For he is possessed of them as a priuate man but he is possessed of them to the vse of an other as executour And he need not in the case aforesaid name himselfe executour For if he do it may tend to the abatement of the writ according to M. Kebles opiniō who saith that the possession of one of the executors his meaning is as he is executor is the possession of both and herewith agreeth the opinion of Newton but by their fauors though the propertie of the executors in the goods of the testator be one and the same yet the possession may be seueral for he that hath the custody of goods may only be said to be in real and actual possession of the same which kinde of possession is onely heare meant for which cause a writ of Detinue that concerneth the possession of goods shall bee brought only against that executor who is possest of the goods 7 The Law may
killing conies in a mans warren yet he shall not vse this word suos in his writ yet because he hath them by reason of his Warren or Doue-house wherein he hath a propertie he shall haue an action for the chasing or the taking of them The nature of Cranes and Doues is wilde neyther is it materiall that by custome they are wont anolare reuolare to flye from home and returne home And in such things which are came and by custome are wont to depart and yet to returne this rule is allowed that so long they may be sayd to be thine as they haue animum reuertendi And felonie cannot be committed in the taking of beasts that be sauage if they be sauage and vntamed at the time of the taking nor for taking of Doues being out of a Douecoate nor for taking of Fishes being at large in the riuer for such taking is not contrectatio rei alienae sed quae est nullius in bonis And the stealing of a Doe which is tame and domesticall is fellonie but then saith M. Stamford it seemeth that hee that stealeth it should haue certaine knowledge that it is tame but if the Doe be killed and then stolne this is felonie And though a man may haue for the taking of his Ferret an action of trespasse because hee is profitable to take Connies for the vse of his maister Yet because a Ferret is ferae naturae a man cannot haue an appeale of fellonie for him no more then he may haue for the stealing of his Hauke and Popiniay or such like for such things are ferae naturae and a man can haue no propertie in them neither can he say in his writ feras suas for that implyeth a contradiction and because they are sauage therefore they are not tithable But when such things are made came by my labour and cost the propertie of them is changed and the nature altered and then if a man take them out of my possession I may haue an action For a man may haue an action quare molossum suum cepit because he is necessarie for the keeping of his house or the keeping of his folde or a fish pond But the nature of hennes and geese is not sauage and therefore if they shall flye away though they be past thine eye-sight notwithstanding in what place so euer they be they cease not to be thine and who so euer deteyneth them is punishable by way of action 4 In the Ciuill lawe there is this case certaine Sheepe were caried away from the Shepherd of A. by Wolfes an husbandman of the next village hauing pursued them with great and strong dogs which he kept for the safetie of his beasts recouered them from the Wolfes for the dogs did enforce the Wolfes to leaue them and when A. did demaund the Sheepe the question was whether the sheepe became his that did so recouer them or remained still the sheepe of A for the dogs did get them by a kinde of hunting yet Pomponius thought in this case that as those things which are taken either on sea or on land do cease to be theirs that tooke them when they are come to their naturall libertie so by the same reason our goods takē away with beasts liuing either in the sea or on the land do cease to be ours whē the beasts that tooke them haue escaped our pursuit And who wil affirme that that continueth to be ours which a bird flying hither and thether carieth out of our barne or out of our field or by any meanes carieth it away from vs if therefore it cease to be ours when it commeth to the mouthes of beasts in common apperance irrecuperably it must needs become his who first recouereth it and so be made proper to the occupant euen as a fish or bird which hath escaped our power if it be taken of an other is streightway his but he thinketh it more reasonable that it should continue ours so long as it may be recouered 5 Likewise a thing pro derelicto habita waiued forsaken is nullius in bonis as when a man for feare of a tempest casteth his things into the sea or some danger being imminent leaueth them vpon the land or els of his owne free will leaueth that which is his owne sine spe rehabendi If a thing be fallen out of a chariot or wagon it may be sayd to be lost or waiued And if a man haue a libertie to take wayfes and strayes in his mannor by prescription and certaine beasts be wayued or do stray within the precincts of his mannor and a stranger taketh them he that hath the mannor shall not haue an action of trespasse generall for the taking of them before he hath seised them though the lawe be taken to be otherwise by some But 13. E. 3. a writ was mainteined by an Abbot by reason of his franchise in the like case but that was an action vpon the case which prooueth that the propertie was not in him before seisure But it hath been held for cleare lawe that felonie is not committed in the taking of treasurie found wreck of the sea wayfe and stray and such like vnlesse they haue been before seised and the reason is quia dominus rerum non apparet ideo cuius sunt incertum est and therefore the punishment in such cases is by fine and not by the taking away of life and member Such landes the propertie whereof hath been executed by possession cannot be wayued but by matter of record And it is a certaine rule and sound reason that such things as cannot passe but by matter of record cannot be wayued or relinquished but by matter of record 6 Such things are said to be nullius in bonis which haue not from time out of minde bin knowne to belong to any man as treasures hid in the earth as when any money gold siluer plate bullion is founde in any place and no man knoweth in whome the propertie is The lawe bestoweth it vpon the King and it becommeth res fiscalis parcell of the treasurie royall and therefore it is called in the common lawe treasure troue that is to say treasure found whereby it appeareth that the King is not proprietarie of it till it be founde but it is before nullius in bonis But if any mine of mettall be found in any ground that alway pertaineth to the Lord of the soyle except it be a mine of gold or siluer or a mine which hath vaines of gold and siluer which shall alway be the Kings in whose ground soeuer they be found and in auncient time as M. Bracton sayth it belonged by the lawe of nature to him that found it but now by the lawe of nations it is res fisci and belongeth to the King but heretofore it hath bene ruled quod thesaurus non competit regi nisi quando nemo scit
commend Achilles for his great valor in killing Hector the stoutest of the Troians and for his good fortune in killing Cygnus who being inuulnerable did barre all the Gretians from comming downe the wall and because beeing young and not bound by any othe or leageance he fought so valiantly for the Gretians These two later of the proper adiuncts I call externall as not flowing from the essence of a thing but befalling externally to it when it is in esse Of this kinde there are two in the Analysis the seconde and fourth The Analysis of Littletons Chapiter of Fee taile Fee taile may be diuers waies considered By the first originall Tenant in fee taile is by force of the statute W. 2. cap. 1. for at the common Law before the said statute all inheritances were fee simple A By the definition Inuented Feodum taliatum est haereditas in quadam certitudine limitata Expounded after ij sorts 1 If tenant in taile die without issue the donor or his heires shall inherite as in their reuersion for in euery gift in the taile the reuersion of the fee simple is in the donor 2 If a man giue lands or tenements to an other to haue and to hold to him and to his heires males or females he to whom such gift is made hath fee simple for that it is not limitted by the gift of what bodie the issue male or female shall be By the diuerse kindes thereof In respect of the nature of the entaile Taile general which is to be considered by the Definition Inuented Taile general is where landes be giuen to one and to the heires of his bodie begotten Expounded Therefore it is called generall taile because whatsouer woman the tenant taketh to wife if he haue many wiues by each of thē haue issue yet any of these issues by possibility may inherite the tenements by force of the said gift because that euery such issue is of his body ingendred So if lands be giuen to a woman and to the heires of her body howbeit that she haue many husbands yet the issue that she hath by each husband may inherite By an example or speciall kinde thereof If tenements be giuen to a man and to his wife to the heires of the body of the man ingendred in this case the husband hath estate in the general taile the wife estate but for terme of life Taile speciall which is to be examined according to the Definition Inuented Tenant in taile special is where lands tenements be giuen to a man and his wife iointly or seuerally to the heires of their two bodies begotten Expoūded after two sorts 1 In such case none may enherite by force of such gift but those which be engendred betweene them two it is called special taile for that if the wife die and he take an other wife and hath issu the issue of the second wife shal neuer inherite by force of such gift nor also the issue of the second husband if the first die 2 In the same maner it is where lands tenements be giuen by a man vnto another with a wife which is the daughter or cousin to the giuer in frankmariage which gift hath inheritance by this word Frankma◠vnto it annexed howbeit they be not expressely said nor rehearsed in the gift that is to say that these donees shall haue these lands or tenements to them to their 〈◊〉 betweene them two ingengred this is called special tail because the issue of the second wife may not inherit the woman donee in frankma◠must be of kin to the donor they shal do no seruice but feal it till the 4. degree to be accompted from the donor be past Diuerse kindes thereof 1 If lands be giuen to the husband and to the wife and to the heires of the husband which he begetteth of the body of the wife in this case the husbād hath estate in special taile and the wife but for terme of life 2 If the gift be made to the husband and to the wife and to the heires of the wife of her body by the husband ingendred the wife hath estate in special taile the husband but for terme of life 3 If lands be giuen to the husband the wife and to the heires which the husband hath by his wife in this case both haue estate in taile special for that this word heires is not limited more to the one then to the other 4 If lands begiuen to a mau his heirs with he engēdreth on the body of his wife in this case the husbād hath estate in the tail special the wife nothing at al. In respect of the persons to whom the taile belongeth Taile to the heire male which is two fold 1. If landes be giuen to a man his heires males of his body ingendred in such case his heire male shall inherite but his issue female shal neuer inherite 2 If lands be giuen to a man to his heires males of his body engendred he hath issu ij sonnes deceaseth and the elder sonne entreth as heire male and hath issue a daughter and deceaseth his brother shall haue the land and not the daughter for that the brother is heire male Taile to the heire female with is to bee cōsidered by the definition Taile to the heire female is where lands be giuen to a man to his heires females of his body ingendred in this case his issue female shall inherite by force and forme of the said gift and not the issue male for that in such cases where the gift is who ought to inherite and who not the will of the donor shall be obserued By the properties 1 Whosoeuer shal inherite by force of a gift in the taile made vnto the heires males it behoueth him to cōuey his discent by the males with may be illustrated by 2. exāples 1 If lands be giuen to a man and to his heires males of his body ingendred and he hath issue a daughter who hath issue a sonne and deceaseth in this case the sonne of the daughter shall not inherite by force of the taile but in such case the donor shall enter 2 If lands be giuen to a man and his wife and to the heires males of their two bodies begotten and they haue issue after the like sort the like shall happen 2 The death of a man taketh not away the estate of those that be in the tail as if a man haue issue a sonne deceaseth and land is giuen to the sonne and to the heires of the body of his father ingendred this is a good tail and yet the father was dead at the time of the gift 3 The donees and their issue shall hold of the donor and his heires as he holdeth of the Lord Paramount Obseruations vpon the Analysis THis definition which Maister Littleton maketh of estate taile consisteth likewise of genus and of a difference The genus is haereditas
quis abscondit thâ—saurum for then as M. Stamford collecteth it shall belong to him in whom the propertie was before and if he dye before such finding his executors shall haue it And because there might befall some square or variance betwixt the Lord of the soyle and the King about the propertie of such treasure it is therefore decided quod thesaurus competit domino regi non domino libertatis si non sit per verba specialia aut per praescriptionem 7 And things are sayde to bee nullius in bonis by common consent as things consecrate and religious for though the goods belonging to a Church as belles seruicebookes surplices chalices and other things must be supposed in a writ of trespasse brought by the Churchwardens to be bona parochianorum in custodia nostra existentium Yet in that the lawe giueth the action to the Church-wardens and to their successors for the recouerie of such goods vniustly taken and doth giue the propertie to the parishioners this properlie must be intended to be to the vse of the church that is to the vse of the parochians as they are the Church for though it be true that Rolfe sayth 8. H. 5. that a church parochiall can not otherwise be intended but a house made of stones and walles and roofe and such materiall things which can not take by gift or feofment no more then a church conuentuall which lacketh a soueraigne yet it cannot bee denyed that the parishioners are incorporate for the purchasing of personall thinges and that in regarde of such capacitie they may be sayde to be the Church it selfe as well as the Parson and his successors in auncient time were sayd to be the Church in the purchase of land and realties which may appeare by this case Land was deuised to one for life the remainder to an other for tearme of life the remainder to the Church of S. Andrew in Holburne this is adiudged to be a good deuise and this must needes goe to the Parson and hys successors because the Church-wardens and parishioners were neuer admitted by lawe to purchase land to the vse of the Church And Belknappe sayde that the cloathes of a dead man being found dead in the field did belong to hys executors if hee had made a will otherwise that they should be deliuered to the Church for celebration of diuine seruice for the soule of the dead for his meaning is as I take it that the Ordinarie should intermeddle with them for the disposing of them And if a man take a coate-armor which hangeth ouer a dead mans tombe in a Church the enditement must be bona executorum of the dead man but if a graue-stone be taken away the enditement must be bona ecclesiae That the words or termes vsed in bookes of lawe ought to be vnderstoode and applied as the lawe doth expound and conceiue them The eight Chapter IT is not possible for a man to be skilfull in any Science vnlesse he do perfitly know the words which do occurre and are often vsed in that Science I doe not meane wordes of Arte onely which by Lexicons and explanatorie bookes may easily be conceiued but such as do import and concerne the obiects of the science about which it is principally conuersant To pursue therefore briefely an interpretation of such words as in the lawe are materiall I take it not to be dissonant from order to begin with the diuersitie of lawes and to shew how these words the lawe of Nature the lawe of Nations the lawe Ciuil the common lawe the statute law the customarie law ius merum and aequum et bonum are vsed in the lawe bookes and are to be vnderstood that so it may be knowne how and in what sort one lawe differeth from an other and of what qualitie and condition that lawe is to which the Student is addicted or vpon which hee doth grounde his reason The lawe of Nature therefore is that which the Nature of Natures or the God of Natures of the Philosophers called Natura Naturaus hath caught all creatures that haue sense by the mediation of nature created of which they consist for this lawe is grounded in the roote and inwarde partes of Nature and therefore one sayeth well Habemus non scriptam sed natam legem quam non didicimus sed hausimus This is according to Iustinian his definition in hys Institutes to whom D. Hotoman may seeme at the first to doe iniurie by obiecting that by this definition to eate to sleepe to mooue and to rest are parcell of the lawe of nature and though this be aunswered by some that these thinges are excluded from the definition by this word ius yet what absurditie woulde followe if such thinges shoulde bee graunted to bee parcell of the lawe of Nature why not as well as the repulsing of force which apparantly proceedeth from the lawe of Nature For in truth there is no difference in the effect betwixt externall force and the force whiche a liuing creature hauing sense should doe to it selfe if it shoulde not performe these aforesayde actions of Nature as to eate to sleepe to mooue and to rest whereby Nature is preserued and kept in time This is playne in men who by the Ciuill lawe are sayde to kill in denying nourishment to themselues or others whereby life and nature may be mayntayned And Iosephus writeth well that it is against the nature of liuing creatures for any of them to kill it selfe But D. Hotom doth further cauill following hys forefather Valla that lawe cannot bee applyed to beastes no more then iniurie may be done vnto them To this may be replyed that iniurie in some sense may be done vnto them if iniurie be taken for that quod inre non fit which is not done according to that lawe that is prescribed vnto them by nature But if it bee done according to the rule of nature though it differ from the nature of all other things yet it is not iniurious or vnnaturall for example All birds except the Cuckoe doe foster and bring vp theyr young these doe it by the lawe of Nature this doth it not by the lawe of Nature and yet doth no iniurie to her young because shee doth it by the instinct and priuiledge of Nature This lawe is of all most auncient beeing connaturall vnto vs and following immediatly and indissolubly the very principles of Nature created being an euen leuill and most iust lawe in it selfe though wrested and corrupted by the corruption of things but in what kinde so euer it is vniformely executed it is without all blemish of vniustice as in mankinde it is vniformely apparant that euery man is inclined by nature to prouide for posteritie But when some prouide too much some too little some with pinching from themselues some in seeking to make their children farre greater then themselues this is not vniforme this therefore is vniust neyther
appeare by that saying of Salust sentencing the proceeding of the Romaines in a matter of estate fit reus magis aequo bonoque quam iure gentium Bomilcar comes eius qui Romam â—ide publica venerat this is not so much comprehended in writing as in the true vnderstanding of that which is written It is necessary by the iudgement of an other Law which saith Etsi nihil facile mutandum est ex solennibus tamen vbi aequitas euidens poscit subueniendum est and againe iustus iudex aequitatem solutius sequitur This though it haue place somtimes in the precepts rules and cases of the ciuil and common Laws yet it hath more affinity with the Law of nature and the Law of nations which are ignorant of the knots and intricate points of these aforesaid Lawes Now that we haue discoursed of these seueral Lawes it remaineth that we should shew what things are the principall obiects of the Law which may be reduced to two heads for either they are real or personall That which is reall is either land or that which issueth out of land land is either firme and fixed earth or that which is immediatly and coherently annexed to the earth as houses By the differences of this diuision a pischarie or fishing is excluded whether it be libera piscaria that is a libertie of fishing in an other mans pondes or waters which he hath in common with others For xx persons may haue a fishing after that sort in one riuer and it is therefore called libera because none may disturbe them to whom the fishing belongeth Or seperalis piscaria which in our bookes hath seuerall significations for either it may signifie a seuerall fishing which one man alone hath in an other mans soile Or els where a man hath a seuerall fishing to himselfe in his owne ground and so it is a thing compounded of water and of earth and therefore it is said that where a graunt is made of a stagne or piscarie the land passeth And in a Formedon brought of a gorse which in Latin is called gurges a gulfe or dâ—epe Yarmouth wherein fishes are commonly taken the demaundant shall recouer the land and soile it selfe And it hath bin adiudged that a fishing so taken lyeth in Tenure And a writ of Aiell was brought of a fishing as a thing lying in demesâ—e And also of a stagne or poole But it cannot be termed land because the water is not coherently fired to the soile but otherwise it is of an acre of lande which is couered with water for though that be ouerflowed with water yet it is not naturally ouerflowed as a ponde or fishe-poole is And therefore it is said 12. H. 7. that a man may haue a Praecipe de vna acra terrae cum aqua cooperta or de vna acraterrae generally at his election But a tenement cannot be said to bee freehold except it touche the earth and therefore a chamber built vpon a hallor parlor cannot be said to bee freehold because it cannot be perpetuall for the foundation may perishe and for that cause it cannot be demaunded by plaint or Writ Yet 9. E. 4. an exchaunge was made of lande for a chamber but that prooueth it not to be freehold for an exchange may be of things of diuers natures as of land for rent And so of a rent for a common A Castell whether it bee a thing either of it selfe or parcell of a seigniory or Mannor may well be called land or freehold For though land may not be parcell of land no more then one Leete or Hundred may bee parcell of an other Yet land may be parcell of a Manor And a parke may be parcell of a Mannor And land may be parcel of an Honor. And of a Castle It is nowe shewed what may properly be called Land and it is not impertment to declare how many sortes of land which we haue before called firme ground may be demaunded by Law of which the Law hath a seueral contemplation Land therefore as it is subiect to the consideration of Law is sixefold Arua Florida consita compascua mineralis in frugifera Arua is the arable ground which is tilled with the Plough Florida the garden ground which procreateth flowers Herbes all such thinges as the Bee doth feede vpon Consita is the wooddie ground which is throughly replenished with trees plants shrubbes and such like Compascua is that which bringeth forth grasse and fodder Mineralis is that wherein mines are conteigned whether they be regall mines as mines of Gold or Siluer or baser mines as brasse leade copper tinne coales or the like Infrugifera is that which is barren and cannot be helped by manurance as the soile where rushes weedes ferne and such things doe grow and it is good to know the diuersitie of these seuerall sortes of grounde that when such thinges are to be demaunded by writ they may be demaunded by their proper names and kinds and therefore if a feoffement be made of two roodes of land and after a house is built there vpon and part of it is become medowe parcel pasture ground and parcell wood the demaund must be by the name of a house medowe pasture and wood and there is a writ in the Register de minera plumbi cuiuscunque generis metalli cum pertinentijs and ruscaria the soile where rushes do grow must be demanded by number of acres And where a stagne hath bin or land couered with water if the water be turned out of the course or dried the land may be demaunded by the name of medow That which issueth out of land or the profits of land are of three sortes Naturall Industriall and Artificial The Naturall profits of land are such as doe rise by the force and benefit of Nature principally and not by the diligence and labour of man as apples hearbes trees and such like Industriall profits are such as doe principally require the diligence and culture of man which vnlesse it be continually applyed natura nihil operatur as corne hoppes woad saffron and such like Artificiall profits are these which are reserued graunted or issuing out of land by the Acte of man and the approbation of Law as a common of pasture a warren a rent and thinges of like sort Common of pasture is of fower sortes appendant which is belonging onely to arable grounde or to land that consisteth as well of arable ground as of other thinges as a Mannor or measuage but the appendancy doth principally grow by reason of the arable and therefore it belongeth to such beastes onely as doe manure or marle the grounde as horses oxen kine and sheepe And if a man haue common to certaine arable landes in one Village hee cannot vse the Common with beastes that manure his arrable in an other Village And this ought
to bee intended of auncyent arrable ground not of land newely improued For continuance of time immemoriall maketh the appendancy wherefore if the arrable land to which common is appendant do by purchase come into the possession of the owner of the soile in which the common is to be taken the common is extinguished in his person But if after the tenements be seuered by alienation as they were before the common is reuiued by some aucthoritie because the same auncient arable land to which before it belonged still continueth But by some it is otherwise because being once extinguished it cannot be de nouo and in an instant made appendant Common appurtenant is where a man prescribeth to haue common of pasture belonging to his land with all maner of beastes it differeth from a common appendant in this that a common appendant is onely to be taken by such beasts as manure or marle the ground and by such number of beastes as will serue to manure or marle the ground to which the common may be claimed and belongeth onely to them as long as they are demurrant vppon the land But a common appurtenant may be taken by all maner of beastes Likewise a common appendant must be onely claimed by reason of land which may be marled or manured but a common appurtenant may bee claimed by reason of a mesuage or house Furthermore a common appendant groweth onely by continuance of tune and the essence of it is prescription ioyned wyth appendancie But a common appurtenant may bee graunted at this day and springeth vp in an instant And a common appendant can not be seuered from the land to which it belongeth But a common appurtenant may be seuered And they differ in this that a common appendant must be vsed and taken according to the rate and quantitie of ground in regarde of which it is granted or claimed But a common appurtenant may be claimed for beastes sans number for by the opinion of Monbray none shall haue a writ of AdmeasuremeÌ„t of pasture but he that hath a common appendant So that it may be probably collected that a common appurtenant because it cannot be admeasured may be wel enough sans number And it may be likewise to a certaine number of beastes for if a man at this day will grant one a mesuage with a common appurtenant for tenne beasts I doubt not but this is a good common appurtenant to the mesuage Common by vicinage is where two townships or moe do entercommon and haue entercommoned from time out of mind which is not to be vsed by putting the beastes of the inhabitants of one towne into the landes of the inhabitants of an other towne for so they may be distrayned damage feasant But they must put them in their owne fieldes if they stray into the fieldes of the other village they must suffer them to be there and they must put in their beastes hauing regarde to the freehold of the inhabitants of that village where the common is to be vsed This kind of common Mast Littleton maketh appendant but by other aucthoritie it is a feueral and distince kind of common Common in grosse is where a man claymeth to haue common for all maner of beastes whether the number be certaine or vncertaine by speciall graunt in writing or by prescription in him that claymeth or his auncestors or they whose estate he hath not by reason of any particuler land this common may be vsed by the beasts of a stranger which the proprietarie of the common may giest as we tearme it A Warren is a profite likewise which may be taken out of other mens ground by prescription and if the owner of the soile 〈◊〉 any one by his commaundement or as his seruant doe come vpon the soyle and do â—hase the Conies he cannot iustifie the chasing though he may iustifie his entrie into the ground And a rent is also a profit issuing out of the soyle of a stranger and sauoureth of the nature of the land out of which it issueth therfore if rent issue out of land in auncient demesne it is auncient demeshe so it is of rent granted out of land in Gauelkind it shal be deuided as the laÌ„d it selfe And so it is of rent graunted out of land deuisable by custome though the rent bee graunted but of late time And so if rent be receiueable out of customarie land as borough English or where dower is to be had of the halfe part and such like the rent shall be of the custome and nature of the land and therfore in the demaunde of such rent by Praecipe or in a Replâ—â—in the tenure by auncient demesne of the land is a good plea. And so if land in taile be deuided amongest parceners the 〈◊〉 reserued to one of the 〈◊〉 parceners shall be in 〈◊〉 and of the same condition as the land was Parsonall thinges 〈◊〉 thinges either in possession or in action Thinges in possession are either goodes or chattels the name of goodes is naturall and ciuill by the naturall signification all such thinges are comprehended vnder the name of goodes which may profite But as the name of goodes is taken ciuilly it stretcheth to the whole he ape and bodie of a mans wealth together with the charge and deductions the reason of this differenceis because nature consideâ—â—â— thinges as 〈◊〉 they are but a common weale or citie after such sort as is most expedient And though the charge which followeth goodes do deâ—race somewhat from the value and estimation of the same yet because it is to be discharged and satisfied out of the goodes it is therefore ioyntly reckoned and considered with the goodes themselues Chattels which in the common Law are tearmed Catalla are diuersly taken for the profits of land if they be gyuen generally vnto the King by acte of law they may be called Chattels and therefore the profits and issues of the landes and 〈◊〉 of them which flie for felony are forfaited vnto the King vntill such time as they be acquited and that by the Statute of Praetog cap. 10. which sayth that the King shall haue omnia Catalla talium fugitiuorum and vnder the word Catalla is comprehended the corne which was growing vpon the land at the time when the forfeyture of the goodes did begin to take place And if a man be outlawed in an action of debt and the outlawrie be retourned so that the writte issueth to the Escheator to seise the goodes chattels and land of the partie outlawed the issues of the land shall be taken to the kinges vse vntill he haue sued his Charter of pardon for an outlawed person shal not forfait any land but the profites onely as rent and corne if he be outlawed in a personall action Otherwise it is if he be outlawed of felonie for then the King shall haue
the escheat of the land or the Annum diem vastum But if the profites of land be generally graunted by the act of the partie then they are the substance of the land and doe not passe without liuerie And if a man graunt the profites of land the land it selfe passeth And therefore it hath bin held by Fortescue and Danby Iustices that tenant in fee simple may graunt vesturam terrae and the grauntee shall haue it after his death But the tenant in taile for life tenant in dower and tenant by the curtesie cannot make any such graunt but if they dye the graunt is determined And if a feoffement be made of land vpon condition that neither the feoffee nor his heires shall take the profites the condition is voide and the feoffement simple and absolute and in such cases the profites of land may not be tearmed Catalla no more then the landes themselues But vnder the word Chattels a lease for terme of yeares is comprised And likewise a right of action for goodes as if goods be taken wrongfully from a felon Or when one is indebted to a felon by bond Or when he is accomptable to a felon by reason of any receipt or otherwise Thinges in action are such in which a man hath neither propertie nor possession as if a man doe owe to an other xx pound vpon a writing obligatorie though he haue a propertie and possession in the writing or charter yet the summe contained is a thing in action in which he hath neither propertie nor possession and so it is of an Aduowson when the church is voide of an incumbent for the patron can not graunt it to any other because then he should graunt but fructum aduocationis which is a thing rather imagined by law then subsistent by nature and therfore the patron can not truely be said to haue propertie or possession in it But though such thinges be to some intent merely in action yet in some cases they are taken as thinges vested and therefore if a man be seised of an Aduowson and the church become void and he dieth his executors shall present and not the heire for the aduowson in regard of the executors was a chattel vested in the testator The King may graunt things in action and so may a common person in some cases As if a man bring an action of debt against I. N. and the plaintife is indebted to me and promiseth me that if I will ayde him against I. N. that I shall be paied out of the summe in demaunde there it is lawfull for me to ayde and maintaine the plaintifie against I. N because by the promise I haue interest in the summe demaunded And where a man is indebted to me in xx pound and an other oweth him xx pound by obligation he may assigne this obligation and debt to me in satisfaction And I may maintaine suit for it in the name of the other A Table of certain words in the Interpretation whereof the Common Law of this Realme and the Ciuill Law doe seeme to agree A. ACcusatio A bill of presentment is a regular fourme of complaint whereby offences are opened and punished Acquisitum purchased that is said to be whereof the propertie is translated from one to an other Affines are the kinsmen of the husband and the wife by mariage so called because two Kindreds which are diuerse one from the other are coupled by marryage and one of them commeth to the borders or marches of the other kindred Ad nos pertinere is said that which doth belong vnto vs eyther by way of propertie or by way of possession or by charge or by administration Aedes plural a house consisting of diuerse rowmes for domus may consist onely of foundation wall couer as the integrall partes or as some briefly say which consisteth of soyle and superficies Aestas sommer a part of the yeare which beginneth at the equinoctial of the spring and endeth at the equinoctiall of Autum and so sommer winter are deuided by vi moneths Annona vittaile is not referred onely to corne but to the meate of the shambles as well to fish as flesh Aperta vis open force which is manifest and euident and doth not receiue any excuse of simplicitie Arborvento deiecta hath not now the name of a tree but the name of wood Arbor dum crescit lignum cum crescere nescit Area a floare is a vacant place therefore called Area quasi exaruerit and were not able to bring forth any thing it hath bin taken to be such an emptie place as doth lye discouered locus ab aedificio purus and hath no superficies it is called a plot of grouÌ„d court or yard Argenâ—um siluer it is of three sorts infectuÌ„ factum signatum Infectum is that which is vnpollished and not adorned with any particular forme being in the ore or bullion newly seuered and singled from the ore Factum is that which is beutified with some particuler forme of which kind is a siluer cuppe a siluer goblet a siluer bowle or a siluer mazard Signatum is that which beareth some speciall Image or impression such is the siluer that is coined accompted currant Argentum factuÌ„ must be described by the kinde or shape Infectum by the weight SignatuÌ„ by the number Arrestare is by the authoritie or warrant of the lawe to hinder that either a man or his goodes bee at his owne libertie vntill the lawe be satisfied Artifices artificers are they which sell things laboured by them and by their labour reduced into a particular forme as Shomakers Smithes Glouers Taylors and Weauers but artificium if it be largely taken extendeth to the knowledge of euery arte artifex and opifex differ for in the one there is labour and iudgement in the other labour only Assultus an assault is a violence done to a mans person by the person of an other man B. Bona fides a sincere conscience excusing one of ill meaning C. Carcer is taken two wayes for it is eyther locus custodiae or locus paenae Cauillatio when a man turneth his speach ab euidenter veris ad euidenter falsa Cella because there we do celare we do hide that which we would keepe secret or close Ciuitas a citie it is taken materially and formally being vnderstoode materially it doth signifie a multitude of houses made of stone and timber being formally taken it is ciuilis societas quasi societas simul viuens and not viuens simplie but viuens bene for as Cicero saith ciuitas sine legibus is corpus sine anima and therefore Aristotle sayth non concedimus vt homo imperet sed ratio Cliens is he that is in suite so called quasi colens and hee who dealeth for him in the cause is called patronus quasi pater Codicillus the declaratioÌ„ of a maÌ„s last wil which without the iust solemnitie of a
land as heire vnto the sonne and not the father because it cannot lineally ascende 2 By the fathers prerogatiue which is threefold 1 If the foresaid vncle dye without issue the Father liuing the Father shall haue the land as heire vnto the vncle and not vnto the sonne for that he commeth to the land by collaterall discent and not by lineal ascention 2 If landes discend by the Fathers side the Fathers side shall inherite and none of the Mothers side 3 If the sonne die without issue and haue purchased lands in fee simple they of the bloud of the fathers side shall be heire vnto him before any of the mothers side 3. By the mothers prerogatiue which is twofold 1 If the sonne hauing purchased lands in fee simple haue no heires on the fathers side then shall the land discend vnto the heire on the mothers side 2 If a man take a wife inheritrix in fee simple which hath issue a sonne and then dieth and the sonne entreth into the tenements as sonne and heire to his mother and after dieth without issue the heires of the mothers side ought to inherite the tenementes and not the heires of the fathers side 4 By the brothers prerogatiue which is after two sorts 1 If there be three brethren and the middle or yonger brother purchase land and dye without issue the elder brother shall haue the land by discent for that he is more worthie of bloud 2 If there be two brethren by diuers venters and the elder is seised in fee simple and dyeth without issue and his vncle entreth as heire vnto him which also dyeth without issue the yonger sonne shall inherite the tenementes as heire to the vncle because hee is of the whole bloud to his vncle 5 By the Sisters prerogatiue If a man be seised of land in fee simple which hath issue a sonne and a daughter by one venter and a sonne by an other venter and dieth and the elder sonne entreth and dyeth without issue the daughter shall haue the land and not the yonger sonne but if the elder brother die before entrye be made then the yonger brother shall haue the land Qui a possessio fratris defeâ—do simplici facit sororem esse heredem 6 By the prerogatiue of the whole kindred If a man purchase land in fee simple and dye without issue euery one that is his next cousin collateral for default of issue may inherite 2 Of such thinges whereof a man may haue a manuall occupation possession or receite as of lands tenemeÌ„ts rents or such other a man shall say in his pleading in way of barre that one such was seised in his demesne as of fee but of such things that lye not in manual occupation as of an aduowson of a church or such maner of things there he shal say that he was seised as of fee and not in his demesne as of fee. 3 Fee simple is the largest greatest inheritance that a man can haue 4 For default of lawful heires the lord shal haue the land held in fee simple by eschete Obseruations vpon the Analysis THis definition which Maister Littleton vseth soundeth like a good Logicall definition as consisting of the true genus and the proper difference for this word inheritance is the genus which extendeth as well to fee simple as to fee taile and this word pure is a difference whereby it is distinguished from fee taile for fee simple is a pure inheritance that is without limitation or restreint but fee taile is a limitted or a restreigned inheritance This word lawfull in the definition is not idle but the meaning of it is that it is an inheritance according to the meaning of common lawe for if by lawfull should be meant rightfull then a fee simple by diseisin should be excluded which I thinke was not Maister Littletons intent And againe if this worde lawfull shoulde extend to all lawes inheritance should be heere taken according to the interpretation of other lawes also which cannot be Maister Littleton well beginneth with the definition for there are but foure things to be doubted of first whether a thing be in rerum natura secondly what it is and of what nature thirdly whether it be such and so qualified or no fourthly why it is such and so qualified and he that wel openeth these foure points shall in all learned discourses shewe hymselfe excellent and absolute The nature of fee simple may bee somewhat vnderstoode by applying it to the subiect to which it apperteineth for tenant in fee simple and tenure in fee simple beeing coniugata hee that well knoweth the one must of necessitie well vnderstand the other Maister Littleton lastly describeth estate in fee simple by certaine adiuncts or properties which do greatly serue to illustrate and explaine the things whereof wee intreate they are of two sortes externall and internall Internall are they whiche flowe from the nature of the thing it selfe of such sorte are the first and third properties mentioned in the Analysis for in that fee simple may lineally discende and not lineally ascende the nature of the tenure is the onely cause for it beeyng to a man and so hys heyres the more worthie heire is he that is of the bodie the lesse worthie he that is of the bloud and not of the bodie but the father in regard of the sonne can be neither of these but in regard and by mediation of the vncle he may be heire to the sonne because he is of the vncles bloud so that in the direct line it is euident that the fee simple cannot ascend and it is a very essential propertie to fee simple to be the largest and greatest inheritance because it is to a man and his heires without limitation Externall properties are these which do so go before a thing or so follow it or so cleaue to it that notwithstanding there is no necessitie of any of these as for example before the killing of a man commonly there is some brawling and contention of words With the acte doth concurre the sighing or groaning of him that is slaine and the flight feare lurking trembling and vnconstant answere of him that did kill him do follow the acte howbeit some be slaine without the concurrence of these circumstances There be two sortes of adiunctes some belonging to the person some to the thing it selfe to the person as the kinred countrey seâ—e age education the habit of the bodie the fortune the estate the qualities of his minde the manner of his life The adiuncts of the thing are the causes the place the time the manner of doing a thing and such like Of these some be common and some be proper common as if one should commend Achilles because he was of good birth because he was a great captaine because he was in fight against the Troians for euery of whiche Diomedes is as much to be commended as Achilles Proper adiuncts be as if thou shouldest