b. a. If Tenant for years of Land granteth a rent-charge to another for the life of the grantee the grantee shall not have an estate of Frank-tenement in the rent in that he cannot have an estate of Frank-tenement derived out of the Chattell reall but he shall have the rent during all the years though the Lessee had forty years in the Land for terme of life is greater then years and therefore the Grantee shall have all the rent for all the years if he shall live so long And f. 525. b. An Executor cannot devise a terme to another which he hath as Executor for so soone as the Executor is dead the terme is to the use of the first Testator and his Executors have it as Executors to the first Testator and to his use and not as Executors of the last Testator nor to his use for the Executors have them by relation as immediate Executors to the first Testator A. Covenanteth with B. and his Executors to make a lease of white acre before Michaelwas and the Covenantee dyeth before and A. maketh a lease to his Executor the lease shall be to the use of the Testator and assets in the Executor for the Covenant which was the cause of the Lease came to the Executor in right of the Testator and to the same use shall the lease be Ployd f. 292. a. Chap-mans case Cessante causa cessat effectus Ployd 268. Sir John Radcliffs case the cause ceasing the effect also ceaseth An office was found that after the decease of Robert Earle of Sussex and Mary the Countesse his mother certaine Lands did descend to Sir John Radcliff Knight as Son and Heire male of the body of the said Robert engendred and the body of the said Mary and Sir John Radcliff Knight was then of the age of eighteen years before the finding of the office and the Lands were holden of the King and Queene by the tenth part of a fee of Knights service in Capite And when Sir John Radcliff became of full age he prayed his livery but the Court of wards required of him for the Queene the valew of his marriage but it was alleaged that because he was made Knight before the title of the Wardship accrewed and the Wardship was due to the Lord in respect of his imbecility to doe the service of a Knight and that the making him a Knight did admit him able to doe the service of a Knight his body ought not to be in ward for defect of such ability for the cause ceasing the effect also ceaseth and that if his person was not in Wardship no marriage nor value for it shall be due to the guardian and so was it adjudged by the Court contrary to Magna Charta c. 4. which was said to be made for the advantage of the Lords vide ibidem plura Coke Com. 312. a. Cessante causa vel ratione legis cessat lex The cause and reason of the Law ceasing the Law also ceaseth as at the common Law no aid was grantable of a stranger to an avowry because the avowry was made of a certaine person and now the avowry being made by the Statute of 21. H. 8. upon no person therefore the reason of the Law being changed the Law it self is also changed and consequently in an avowry according to that act aid shall be granted to any man vide ibidem plura Coke Com. f. 76. a. Cessante causa cessat causatum As if the Lord after he hath the Wardship of the body and the Lord doth release to the infant his right in the signiory or the signiory descendeth to the infant he shal be out of ward both for the body and the Land for he was in ward in respect he was not able to doe those services which he ought to doe to his Lord which now are extinct for the cause ceasing the thing caused ceaseth and there must be a tenure continuing or no Wardship So if the Conusee in a Statute merchant be in execution and his Land also and the Conusee release to him all debts this shall discharge the executiâ—n for the debt was the cause of the execution and of the continuance of it untill the debt be satisfied therefore the discharge of the debt which was the cause discharged the execution which was the effect Coke Com. f. 76. a. So if the heire female within the age of fourteen years be in ward and after the age of fourteen years expired the Lord by the Statute of W. 1. c. 22. hath two years more to tender her a convenable marriage but if the Lord marry her within the two years her husband and shee shall prefently enter into the Lands for the cause ceasing the effect also ceaseth Coke ibidem 7 5. b. The King granteth an office to one at will and ten pound fee during life pro officio illo now if the King put him from his office the fee shall cease 5. E. 4. 8. b. The executor or husband after the death of the wife guardian in socage shal not retain the Wardship for the guardian hath it not to his owne use but to the benefit of the heire and the executor or husband hath not that affection which the testator or wife had which was the cause that the Law giveth them the Wardship 7. Eliz. 293. b. If a stroke be given the first day of May and the King pardon him the second day of May for all felonies and misdemeanors the party smitten dyeth the third day of May so as this is no felony till after the pardon yet the felony is pardoned for the misdemeanor is pardoned and therefore all things pursuing are also pardoned 13. E. 401. If two coparceners make a lease reserving a rent they shall have this rent in common as they have the reversion but if afterwards they grant the reversion excepting the rent then they shall be Joyntenants of the rent Finch mono. f. 9. It is no principall challenge to a Juror that he hath married the parties mother if shee be dead without issue for the cause of favor is removed 14. H. 7. 2. The King disparking the Parke the office of the keeper is determined and all such offices as are presumed in Law to be for the commoditie of the King as well as the Patentee and if one granteth a Stewardship of a mannor and dismembreth that mannor the office is determined if a corporation granteth the office of a towne-clark and surrendreth their patent to be renewed all their offices are determined Huttons Reports Upon a divorce the woman shal have the goods given in marriage not being spent for the goods were given in advancement of the woman and therefore it is reasonable that shee should have them in that the cause and consideration of that gift is now defeated for the cause ceasing the effect also ceaseth Dyer f. 13. p. 61. Coke l. 5. f. 59. b. Vaughans case The originall cause of the amercement being pardoned the
in possession by the antient Law the entry of the disseisor for his negligence had beeâ— taken away which now is onely by descent many aâ—â— continuall are the mutations of the Law according to the changes of the time For the rule and ground holdeth quod perpetua lex est nullam begem humanam ac positivam esse perpetuam that it is a perpetuall Law that no humane or positive Law is perpetuall Bac. Max. f. 70. Tempus edax rerum Coke l. 3. f. 21. A. maketh a lease for years to B. and when the Terme is ended the remainder to C. the reversion is good for it is certaine enough that every terme shall end for time is the consumer and divourer of things Distingue tempora concordabis leges the times being distinguished the Law will be reconciled Coke l. 9. f. 16. b. The King by the Statute de bigammis 4. E. 1. when the heire was of full age had nothing but primam seisinam capiendo exitum the profits of the Land in effect for one yeare but could not endow the Feme because after the Heire was of age he was not guardian and for that reason he could not endow the Feme at the common Law no more then guardian in chivalry might who though after the Heir was of full age did hold the Land further for the value of the marriage no Writ of dower did lye against him because he was not guardian yet afterwards by the Statute de praerogativa regis 17. E. 2. the King had power to endow the Feme although the Heire were of full age si vidua illae voluerint so as the Statute leaveth it to the election of the Feme whether shee will be endowed in the Chancery or at the common Law so as by distinguishing the times the difference of those Laws are apparently agreed and reconciled Omnia tempus habent habenâ— sua tempora tempus Coke l. 10. f. 82. a. All things are subject to time and time it self hath also its times as by the Statute of 34 H. 8. three severall Times ought to concurr in a devise whereby the King may have the value of the third part the first is tempus habendi every person having the 2d is tempus tenendi holding of the King the third is tempus disponendi may â—ive and dispose as if a man be seised of one acroâ—â—f Land in fee in chiefe by Knights service and of two other acres in fee holden in socage and the Tenant infeoffe his youngest Son of the acre holden in chief and of one of the other acres to have to him and his heirs and afterwards purchaseth Lands holden in socage he may devise all his Lands newly purchased holden in sooage because he had no Lands holden of Knights service in Capite at the time of the devise for the acts have made a conjunction of the Lands which the Tenant holdeth in socage with the Land which he holdeth of the King by Knights service in Capite so as when the Tenant hath conveyed the Land holden in Capite to his youngest Son now when he made his Will of the Lands so newly purchased he had no Lands holden of the King in Capite at the time of the devise and the Statute restraineth only those Lands in socage which he had at the time of having of the Lands holden in Capite vide ibidem plura in Loveys case For Judicis officium est ut res ita tempora rerum Quaerere quaesitâ— tempore tutus eris A Judges part it is to ponder things with time And by the square of time sure Judgment so to finde Coke Com. f. 202. a. If a rent be granted payable at a certaine day and if it be behinde and demanded that the Grantee shall distraine for it in this case the Grantee needeth not to demand it at the day but if he demand it at any time after the day he shall distraine for it for the Grantee hath election in this case to demand it when he will to inable him to distraine But upon a Lease for years reserving a rent upon condition that if the rent be not paid at Michaelmas or within one and twenty dayes after that then he may re-enter the tenant is not bound to pay the rent or tender the mony before the last instant of the last day but if he do not then the Lessor may re-enter and have the Land and the rent also but if the Lessor be not at the time there to receive the rent he cannot re-enter though he demand the rent before Brook Intender 41. unlesse before the Lessee meets the Lessor upon the Land and tender the Rent on the same day Coke Com. f. 22. a. Ployd f. 392. 393. a. Where a thing is referred to a time which declareth certainly if it be mistaken all shall be void as Trin. 7. E. 3. 26. One bringeth a Writ and reciteth that it is contained in the Articles made in the time of Edward the second and declared further according to the statute and the writ was abated by award for that those Articles articuli super chartas C. 9. were made in the time of Edward the first So Tr. 18. E. 3. f. 25. A statute Merchant was made to be paid in the sixteenth yeare of E. 3. and the party sued execution and the Writ supposed the sum to be paid in the fourteenth yeare of E. 3. and by the suit the Feoffee was outed whereupon he sued a Writ of error in the Kings Bench and the writ was abated and it was said that the time declared certainty for it might be that there were two statutes payable at diverse severall daies and therefore the day of payment was materiall ibidem So if a defeasance be made of a statute which reciteth it to be made the tenth day of May where it beareth date the first day of May the defeasance is void for the misprision of the time for the law saith that it may be that there was two statutes the one bearing date the first day and the other the tenth day vide ibidem plura in the Earle of Leicesters case A loco from the place LOcus pro solutione reditus aut pecuniae secundum conditionem dimissionis aut obligationis est stricte observandus Coke l. 4. f. 73. a. in Burchers case The place for the payment of money or rent according to the condition of a Lease or obligation is strictly to be observed As if a common person maketh a Lease of Lands in R. reserving a rent to be generally paid at such a feast upon condition of re-entry if it be not then paid the demand must be upon the land for the land is the debtor and therfore that is the place of demand appointed by the law and if there be an house upon the land he must demand the rent at the house and not at the back doore but at the fore doore because the demand must be made at the most notorious
by misadventure as by an Arrow at Butts this hath a pardon of course but if a man be hurt or maimed onely an Action of Trespass lyeth though it be done against the parties will and he shall be punished in the Law as grievously as if he had done it of malice Stanf. 16.6 E. 4.7 So if a Chyrurgion authorized to practise do through negligence of his cure cause the party to dye this Chyrurgion shall not be questioned for his life yet if he do onely hurt the Wound whereby the cure is cast back and death ensueth not he is subject to an Action of the Case for it Stanf. 16. So if Baron and Feme commit Felony together the Feme in regard of the subjection of her will to her husband shal neither be principal not accessary but if they joyn in committing a Trespass upon land or otherwise the Action may be brought against them both So if an Infant wanting discretion or a mad-man kill another he shall not be impeached thereof but if they do him any corpâ—rall hurt he shall be punished in Trespass 35 H. 6. 11. So in Felony if the principall dye or be pardoned the proceeding against the accessory faileth But in a Trespass if one commandeth his man to beat you and after the Battery the Servant dyeth yet you may have an Action of Trespass against the Master 17 H 4.19 Aestimatio praeteriti delicti post facta nunquam crescit Bac. Max f. 32. In penall Lawes and Facts the Law considereth the degree of the offence not as it standeth at this time when it is committed but for any circumstance or matter subsequent the Law doth not extend or amplifie the same As if a man be wounded and the Percussor is voluntarily let to go at liberty by the Goalor and after the party wounded dyeth yet it is no Felonious escape in the Goaler 11 H. 4.12 So if one conspire the death of one who after cometh to be King not being within the Statute of 25 E. 3. this is high not high Treason but otherwise it is in civill and common cases vide ibidem Plur. Ipsae etenim leges cupiunt ut jure regantur Co. l. 2. f. 25. In omnibus quidem maxime tamen in jure aequitas est Reg. I. C. In all things but especially in the Law there is equity and the Lawes themselves desire to be ruled by equity For inasmuch as no Legislators can foresee all things which may happen it was therfore convenient as Ploydon saith that that fault should be reformed by equity And is either an amplification or diminution of the Law and no part of the Law but a morall vertue which reformeth the Law for dirigens and directum are diverse things and equity is not a Law but the emendation of the Law and therefore the Lawes themselves desire to be ruled by equity As whereas the Debtor after he is become Bankrupt may prefer one and defraud others the Act of 13 Eliz. c. 7. hath appointed certain Commissioners of indifferency and credit to releive the Creditors of the Bankrupt equally and that there shall be an equall and rateable proportion observed in the distribution of the Goods of the Bankrupt among his Creditors having regard to the quantity of their severall debts so that one shall not prevent the other but all shall be in aequali jure and so we see in many cases as well at the Common Law as upon the like statutes such constructions have been made for as Cato said Ipsae etenim leges cupiunt ut jure regantur and therefore is it holden 35 H. 8. Title Testaments V. de plura in Herberts case lib. 7. Bro. 19. A man holdeth three Mannors of three severall Lords by Knights-service every Mannor being of equall value he cannot devise two Mannors and leave the third to descend according to the generality of the Acts of 32. 34. H. 8. of Wills for then it shall prejudice the other two Lords but by equall construction he cannot devise but two parts of every Mannor and so as equality shall be observed among them and so at the Common Law an equality is required as in 11 H. 7. 12. b. a man is bound in an Obligation and his Heirs and he hath Heirs and hath lands of the part of his Father and part of his Mother both the Heirs shall be equally charged vide ibidem plura Co. Com. f. 10. a. If partition be made between Parceners of lands in Fee simple and for novelty of partition one granted a rent to the other generally the Grantee shall have a Fee-simple without this word Heirs because the Grantor hath a Fee-simple in consideration whereof he granted the rent Ipsae etenim leges c. And Co. Com. f. 271. a. b. when a Feoffment is made to a future use as to the performance of his last Will the Feoffee shall be seised to the use of the Feoffor and his Heires in the mean time for the Lawes desire to be ruled by right and equity And reason would that seeing the Feoffment is made without consideration and the Feoffor hath not disposed of the profits in the mean time that by construction and intendment of Law the Feoffor ought to occupy the same in the mean time And so it is when the Feoffor disposeth the profits for a particular time in presenti the use of the Inheritance shall be to him and his Heires as a thing not disposed of Co. ibidem Co. l. 5. f. 100. a. The Commissioners of Sewers by the Statute of 6 H. 6. c. 5. and 23 H. 8. c. 5. ought to tax all equally which are in danger to be endamaged by not repairing the Banks and not him onely who hath land adjoyning to the River for otherwise the rage and force of the water may be so great as the value of the land adjoyning shall not serve to repaire the Banks and therefore the Statutes will have all who be in the same perill and are to receive commodity by it to be contributory and the statutes require equality which well standeth with the rule of equity for equitas in Bracton est quasi aequalitas and though the Owner of the Land next adjoyning to the River was bound by prescription to repaire the banks of the River yet the Commissioners ought not to charge him only with all but to take all those which have lands in danger for otherwise it may that all the country shall be surrounded before that one person onely can repaire the Banks vide ibidem plura In Fooks case Coke l 7. f. 123. b. When the King granteth any Land without the reservation of any Tenure or without any thing from thence to be rendred or the like that land by the operation of Law shall be holden of the King in Capite by the service of Chivalry according to the rate and proportion of land that affereth to one fee of Chivalry and so of more more and of lesse lesse for the
sub eo ipse sub nullo nisi tantum sub Deo Bract. l. 1. c. 8. The King is the Vicar and Minister of God upon earth every one is under him and he under none but onely under God and therefore the Lands which are in the Kings possession are free from tenure for a tenant is he which holdeth of some superior Lord by some service so as the King cannot be a tenant because he hath no superior but God for as Coke l. 8 f. 118. It would be against common right and reason that the King should hold of any or doe service to any of his Subjects and therefore all Lands holden of him mediately or immediately Co. com f. 1. and for which reason Cowell thought it not so proper in the Kings case to say that he is seised in dominico suo ut de feodo as if feodum in our Law was taken as it is in the fendall Law onely for the Lands held in Services whereas feodum as Bracton Britton Fleta and Littleton tels us idem est quod haereditas Davis case of Tenures f. 30. Neither can the King be a Joynt-tenant with any though it be of land or other things that he had in his body naturall for none can be equall with him And therefore if two purchase lands to them and their heirs and one be made King they are no more Joynt-tenants but Tenants in Common 3 Eliz 339. Nay Acts of Parliament do not bind him unless they concern the Common-wealth or he be specially named 4. E. 4 21. 1 Eliz. 223. And no man can declare against the King but he must sue by way of Petition Ployd f. 241. b. 18 Eliz 498. He hath the property of all Goods that are nullius in bonis and shall have all Tythes out of Forrests and places out of any Parish for rex est persona mixta cum sacerdote In a Writ of Error upon false Judgment given for the King no Scire facias shall go forth ad audiendum errores for the King is alwaies in Court and that is the cause that the form of Entry is in all Suits for the King in the name of his Attorney generall F.N.B. 21. b. Rex semper praesumitur attendere ardua negotia regni pro publico bono omnium Coke l. 5. f. 56. a. It is alwaies presumed that the King doth attend the weighty and hard things of the Kingdome for the publick good of all And therefore have the Grants of the King a more beneficiall interpretation then the Grants of the Subject that may attend their private Affaires which are alwaies taken more strongly against them As if the King do grant lands to I.S. and his Heirs and in truth I. S. is the Kings Villain that shall not enfranchise the Villain by Implication The same Law is of an Alien born 17. E. 3. 39. The Advowson of Pravondry holden of the King was aliened to an Abbot and his Successors and that the Successors shall hold the Provandry to their own use The King shall seise the Advowson for Alienation in Mortmain and destroy the Appropriation for he shall not be ousted of his right of Advowson by Implication So 2 R. 2. 4. If two be indebted to the King and the King release to one it shall not discharge the other for no prejudice shall accrue to the King by construction or implication upon his Grant more then he truly intended by it ibidem So if a release be made by him of all demands the right of Inheritance shall not be released 6 H. 7. 15. If the King granteth lands in fee upon condition that they do not alien it is good but in all these cases it is otherwise in the case of a common person And in many cases the King who claimeth by a Subject shall be in a better case in respect of the Prerogative incident to his Royall person then the Subject himself by whom he claimeth As if the King have a Rent-seck by Attainder of Treason or by Grant he shall distrain for it not onely in the land charged but also in all his other lands and yet the Subject by whom he claimeth shall not distrain If a Subject have Recognizance or an Obligation and after is outlawed or attainted the King shall seise all the land of the Conusor or Obligor where he himself can have but the Moyety the King shall take advantage of a Condition broken without demand whereas a common person who claimeth under the King cannot re-enter for non payment of Rent without demand made And if the King purchaseth a Lordship of which land is holden by posteriority the King shall have the priority vide ibidem plura in Knights case Davis f. 45. If a common person grant rent or any other thing which lieth in grant onely without limitation of any estate by the delivery of the deed only a Frank-tenement shall passe 17 E. 3. 43. a. If the King grant rent or land without the limitation of any estate the Grant is meerly void for the incertainty 7 Ass pl. 1. and the Grantee shall not be Tenant at Will as it is ruled in the case of Alton Wood. Ployd f. 243. The Grant of the King is taken more strongly against a stranger and more favourable to the King although the thing granted come to the King by purchase or descent Whereas it is otherwise of a common person As a grant of a Mannor by the King the Advowson shall not passe without speciall words So the King may grant a thing in action which another cannot So if the part of an entire thing commeth to the King the Common Law hath given him all As if an Obligation be made to two and one is outlawed the King shall have all the duty So he shall have an entire Horse or Oxe which one who is outlawed holdeth in Common ibidem So Coke l. 9. f. 129. b. Quando jus domini regis subditi in simul concurrunt jus regis preferri debet when the right of the King and the Subject concur and meet together the right of the King ought to be preferred as in Dame Hales case Baron and Feme Joynt tenants of a term for years the Baron is felo de se the Baron shall forfeit all Ployd Com. 262. vide ibidem plura in Quicks case The King may mend his Declaration that term that it is put in p. 13 E. 48. So the King may wave his Demurrer and traverse the plea of another M. 28 H. 6. f. 2. So if the King grant lands in fee with Warranty against all the Patentee shall not have value in recovery without express words to have value So the King may make a Lease to a stranger this reservation is good and the stranger shall distrain for it or have an action of debt after the Lease determined M. 35. H. 6. f. 36. Ployd f. 243. a. So for arrearages of Rent-charge granted to the King he may distrain in all other
shall give notice of the said felony to some of the Inhabitants of any Village or Hamler next the place where the robbery was done and that if in their pursuit they take any of the Offenders that shall excuse them though they do not take all See there in that Statute the reason of the alteration Co. l. 6. f. 50. a. b. At the common Law a man that had once the benefit of the Clergy shall have it another time and so in infinitum which was remedied by the Act of 4 H. 7. So as the burning in the hand was not to other purpose but to notifie to the Judge whether he had had his Clergy before or no ibid. So if one be attainted at the Common Law for forging false Deeds the King cannot pardon it yet the King may pardon the corporall punishment in case of forgery in the Star-chamber because all Suites in the Star-chamber are but informations for the King though the Suit be exhibited by the party ibidem So before the Statute of 18 Eliz. c. 7. the King might in case of Inditement of Man slaughter pardon the Imprisonment 15 H. 7.9 but not in an appeal but after the Statute of 18 Eliz. by which it is provided that after Clergy allowed and burning in the hand the Prisoner shall presently be enlarged and delivered out of prison It was resolved that that Act did extend as well to the case of appeal as to the case of Inditements otherwise the party shall lawfully be discharged of his punishment and yet remain in perpetual prison ib. vide examen legum Angliae f. 29. Cessante ratione legis câ—ssat lex Coke com f. 70. b. The reason of the Law ceasing the Law it self ceaseth As he that holdeth his land by Escuage when the King maketh a Voyage royall into Scotland to subdue the Scots then he that holdeth by the service of one Knights fee ought to be with the King conveniently arrayed for the War for forty daies c. yet needeth he not go with the King himself if he will find another man and this seemeth to be good reason for it may be he is languishing so that he cannot go nor ride Also an Abbot or another man of religion or a Feme-sole which hold by such services ought not go in proper person Littleton ibidem Quia multa In jure communi propter rationabilem causam omittenda sunt for many things for a reasonable cause are to be omitted If the King give lands to an Abbot and his Successors to hold by Knights service this had been good and shall do homage and fine a man but there was no wardship or releif or other incident belonging thereunto but if the Abbot and his Heirs had conveyed the land to a natural man and his heirs now the wardship releif or other incident belonged of common right to the King So if the King give lands to a Mayor and Comminalty and their successors to be holden in knights-Knights-service the Patentee shall do no homage neither shall there be any wardship or releif onely they shall find a man but if they convey the land to any naturall man and his heirs now marriage homage ward releif or other incidents belong hereunto for the reason of the Law being changed the Law its self is changed and the immunity which was in respect of the body politique by conveyance over ceaseth Coke ibid. Qui rationem in omnibus quaerunt rationem subvertant Theophrastus Coke l. 2 f. 7.30 who do seek reason in all things overthrow reason As if a man make a Lease of Indenture for life of lands in severall Counties and maketh livery of seisin in one County and divers daies after he maketh livery in the other County yet an intire rent shall issue out of the land in both Counties and yet the livery by which the Estate passed was made at severall times and therefore it may be argued that presently by the first livery the rent issued out of it But the Law shall not adjudge by parcels in subversion of the intent and agreement of the parties but after all Acts are made in performance of the originall contract and agreement of the parties the Law shall adjudge upon all as done at one and the same time So if a man make a Charter of Feoffment with warranty and deliver the Deed to the Feoffee and after at another time make livery secundum formam chartae yet the Warranty is good and yet it may be objected that when the Deed was delivered no estate passed to which the warranty may be annexed nor no estate was in the Feoffee by which the Deed might enure and so by nice construction upon the distinction of time the warranty shall be subverted but the Deed which comprehended the warranty took effect presently by the delivery of the Deed before livery and seisin and therefore the sentence is true that who do seek reason in all things subvert reason ibidem SECT II. A Verbis legis non est recedendum Coke l. 5. f. 118. b. we ought not to go from the words of the Law Edriches casc A. deviseth rent with distress to B. for the life of C. the heire leaseth the land for life to D. the remainder to E. in see the rent is behind in the life of D. D. dieth C. dieth B. distraineth for the arrearages of E. in remainder and resolved that he shall be charged by the second branch of 32 H. 8. c. 37. which giveth a distress for the arrearages upon such lands out of which the said rents were issuing in such manner and form as if Cestuy que vie had been living And the Judges said that they ought not to make any interpretation against the express letter of the statute for nothing can so express the intent of the makers of the act as their direct words themselves for Index animi seâ—mo and it shall be perilous to give scope to make construction in any case against the express words when the intent of the makers appeareth not to the contrary and when no inconvenience upon it shall arise for we ought not to go from the words of the Law vide ibidem plura Coke l. 10 f. 105. a. b. If in an Assise so many of the Recognitors make default that there be not twelve the Justices of Assise cannot award Tales de circumstantibus for though the Justices of Assise are named in the said Act of 35 H. 8. as well as the Justices of Nisi prius yet insomuch as the said Act doth not give power to Justices of Assise or Nisi prius but where the tryall shall be by twelve men in any Writ of Habeas Corpora or Distringas with Nisi prius and it cannot be in an Assise for Assisae capiamur in proprio Comitatu and can never be taken by Nisi prius in proprio commitatu and no exposition can be made against the express words for that shall be viperina expositio quae
of debt for the arreaâ—ages before the coverture yet when as the Statute giveth to the Baron an Action of debt for the arrearages the words shall be taken with effect and shall be construed for the arreages due before It is a rule in the Law that verba restringuntur ad habilitatem personae vel ad aptitudinem rei Bac. Max. f. 14. Generall words are to be restrained to the condition of the person or fitnesse of the thing as if a man grant to another common inter metas bundas villa de Dale and part of the vill is his severall and part of his wast common the Grantee shall not have common in the severall yet this is the strongest exposition against the Grantor so by all the precedent rules and grounds it appeareth that the rule that words shall be taken more strongly against the Grantor doth yeild to them as the more worthy and equitable vide ibidem plura where this rule with its differences and exceptions is amply and accurately discussed The grant of a common person shall be taken more strong against him but the grant of the King shall be taken more strong against a stranger and more favorable for him Ployd f. 243. a. As a Mannor granted by the King the advowson shall not passe without speciall words 2. H. 7. 8. So the King may grant a thing in action Ibidem And if the King grant a Mannor or Land without limitation of any estate the grant is void for the incetrainty and the Grantee shal not be tenant at the will of the Lord Davis Rep f 45. vide ibidem plura This rule hath no place in Acts of Parliament Verdicts Judgements or Devise Bacon f. Max. 21. Expressio eorum qâ—ae tacite insunt nihil operatur Coke l. 4. f. 73. b. The expression of those things which are covertly implyed worketh nothing for the expression of a clause which the Law implyeth operateth nothing as in 30. Ass Pl. 8. A Lease is made to two for terme of their lives diutius eorum viventi and after they made partition and the one dyeth and he in reversion entereth and his entry adjudged lawfull notwithstanding the said words diutius eorum viventi for without those so much was covertly implyed by the Law 17 E. 3. 7. Hulls case whereupon Coke giveth this observation that in case of lease for life it is more beneficiall for the Lessor to have the joynture severed then to have it continue but otherwise it is in a Lease for yeares for if a man makes a Lease for yeares to two with a proviso that if the Lessees dye within the terme that the terme shall cease the Lessees make partition or one alieneth his part and dyeth the Lessee shall not enter into his part that is dead but the Grantee or the Executors of the Lessee shall 〈…〉 So if the King maketh a Lease for yeares rendring rent without limiting of any place or to whose hands it shall be paid the Lessor may by the Law pay it either to the receipt of the Exchequer of the King or to the hands of the Bailiffs or receivors of the King whom the King hath authorized to such purpose and therefore the usuall and speciall limitation of the payment of rent at the receipt of the Exchequer c. doth import no more then the Law will imply and therefore nihil operatur Ibidem Coke l. 8. f. 26. b. If the King reciting that another holdeth the Mannor of D. for life granteth the said Mannor to B. for his life in this case the Law implyeth that the second grant shall begin and take effect after the determination of the first grant and therefore there is no incertainty in the grant though it be not expressed so for the expression of a clause which the Law implyeth operateth nothing ibidem in the Earle of Rutlands case Coke l. 10. f. 39. a. By the Statute of 32. H 8. Tenant in taile may make a Lease for three lives or ten yeares and by the Statute of 4. H. 2. c. 24. he may levy a fine and by the Statute of 32. H. 8. c. 36. by it bar the issues and therefore if a man make a guift in tail and further grant that he may lease for life or for yeares or levy a fine with proclamations to bar the Issues nihil operatur for when one maketh a tacit guift in taile he giveth those incidents to it Ibidem And therefore are such conditions and expressions called by Sir Francis Bacon clausula vel dipositio inutilis an unprofitable clause and disposition and to no use because the act or the words do express no more then the Law by intendment would have supplyed and that therefore the doubling and iterating of that and no more then which the conceite of the Law doth in a sort prevent and preoccupate is reputed nugation And thâ—refore if a man devise Land at this day to that they must worke some thing and not be idle and frivolous in Edward Foxes case wherein it was his Son and heire it is void because the disposition of the Law did cast the same upon the heir by descent 32. H. 8. Gourd 39. Ber. And yet if it be by Knights service Land and the heire within age if he take by the devise he shall have two parts of the profits to his own use and the guardian shall have the benefit but of the third Brooke devise 41. But if a man devise Lands to his two Daughters havnig no Sons then the devise is good because he doth alter the disposition of the Law for by the Law they shall take in coparcenary but by the devise they all take joyntly Dyer 12. Bacon f. 74.75 vide ibidem plura Yet Littleton saith it is well done to put in such clauses to declare and expresse to the lay people which are not learned in the Law what the Law is in such cases Co. lib. 4. f. 73. b. Expresum facit cessare tacitum Coke com f. 183. b. A matter or thing expressed causeth that to cease or to be of no effect which by intendement of Law was implyed and not expressed As if one grant Lands to two without expressing what estate they shall have they have a joynt estate for terme of their lives but if a Lease be made to two Habendum to the one for life the remainder to the other for life this doth alter the generall intendement of the promises so if a Lease be made to two Habendum the one moiety to one and the other moiety to the other the Habendum doth make them tenants in common for that which is expressed doth make that which is secretly intended to cease Ibidem for as he in another case saith if the generall words should stand without any qualification then the speciall words should be altogether vaine Coke l. 8. f. 154. in Edward Althans case quod vide Coke Com. f. 210. a. b. If the Feoffee in mortgage before
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
other Souldiers but English L. 1. de repub c. 21. though he had enjoyed and lived in peace for the space of thirty yeares whereas the French were continually conversant exercised in the Italian Warrs yet that prudent King who knew well that he had so ordered the Realme that in the time of peace the feats of armes were practised and military discipline exercised both attempted the conquest of France and fortunately effected it The same Encomium doth he give of Epominondas who redeeming the Thebans from the servitude of the Spartans so instructed them in the forme of military discipline that through their aid though effeminated by service he gave the Spartans a mighty defeate and overthrow for the care and faith of Domestick and Native Souldiers is greater and firmer and for the honour of their Prince and glory of their Country will fight more fiercely ita ut consensu quodum saith Seneca protegendi amandique regem conspirasse intelliguntur so as they are conceived to have conspired with an unanimous consent of protecting and loving their King Whereas mercenaries and strangers are commonly tumultuous and refractory and love not to be commanded Tac. 4. hist Tac. theagiae or governed but as Tacitus omniae ex libidine agunt love to doe what they lift and which is most perilous are perfidious non fide non affectu tenentur are not held nor kept by faith and affection but there faith dependeth on fortune which inclining to the Enemy thither doe they for the most part bend their mindes and forces by which meanes as one truly externo pessundata milite regna and as Curtius insidiosae fiunt illorum domini Kingdomes are sometimes ruined and by treachery they themselves become Lords and Masters of their leaders L. 1. f. 13. Polibius relateth that Carthaginians waging Warr with the Romans had their army mixed with Spaniards French and fugetive Grecians and that having made peace with the Romans intended to dismiss them who amounted to the number of twenty thousand which they perceiving suddenly drew themselves into a military body and made head against the Carthaginians and forced some of their Cities to subject their Forts to their Forces in so much as the Carthaginians were compelled to crave aid of the Romans to resist and repell them through whose assistance Hamilcar circumvented and inclosed them in narrow streites and places so as more of them perished by famine then the sword and Hamilcar by the consent of all was called salvator patriae the Saviour of his Country to this purpose I could plaustra exemplorum accumulare accumulate Cart-loades of examples how dangerous a thing it is to call in strangers to their aid and especially in any great number which plainely appeareth by the perfidiousnesse of the Saxons who though they came at the first as Mercenaries yet once admitted and sensible of their own power they soone grew Masters and Lords of the Brittons and therefore Livy giveth this sound counsell to them who are necessitated to introduce the aid of strangers that their Captaines be so circumspect quod non ita externis credant auxillijs ut non plus sui roboris suarumque pâ—oprie virium in castris habeant Livy l. 25. that they doe not confide so much in externall aid that they have no more of them in their army then their own strength and power will keepe in awe Multum potest in rebus humanis occasio plurimum in bellicis Poly. b. Coke com 71. a. Occasion and opertunity prevaile much in humane things but most of all in Marshall affaires In ancient time Kings had the supremacy over others of commanding 2. Reg. c. 8. or commencing War as appeareth by the sacred History yet sometimes upon necessary cause if there be danger in delay or the soveraigne Commander be absent War may be undertaken without the commandement of the Prince if it be upon necessary occasion of just defence which by the Law of nature is granted to every one So though the Consull Marcellus had the supreame command in Sicily yet L. Pinarius who was Captaine of the Garrison of Enna in Sicily when he did foresee the revolt and defection of the Citizens of Enna to the Carthaginians Livy l. 24. and he could not send Ambassadors to the Consull Marcellus though he was not far from thence suddenly he did kill all the Carthaginians by which Act Enna was still retained for the Romans and Marcellus did not disallow the fact And therefore Cicero commendeth the enterprise of Octavius Caesar who not expecting the decree of the Senate did of his own head make War against Antonius for if he had then omitted the time of battaile he did well foresee that the common Wealth would be suppressed and that then nothing could be decreed by the Senate and the Senate did after allow by publick authority the War undertaken by Octavius of his own private advice so Scipio Nasica did deserve exceeding commendation who voluntary without any decreed authority did offer himselfe a Captaine to all good Romans for the suppressing of Tibeâ—ius Gracchus and his treacherous confederates for it is necessary in such perturbations and tumults rather to obey times then customes for in peace we must obey custome in War the times and occasions Inter arma silent leges Coke l. 9. Ep. ad Lectorem When Armes and Weapons sway The Lawes are at a stay War was first brought in by necessity for in that decisions in Courts of Law and the determining of controversies by their rules could not be between two strange Princes of equall power unlesse they should willingly agree to such an order because they have no superior nor ordinary Judge but are supreame and publick persons and therefore the judgement of Armes is necessary because such War against them cannot be bridled by Law and by this and many other cases War is lawfull though many mischeefes doe staine it for good doth ensue of it and Princes by it obtain their rights and rebells are reduced to obedience and peace accorded and that whose end is good is also good it self to which and to common equity without bloodshed and these injuries of war men do seldome attain But when the Lawes of War and Arms do rule the civill Lawes of peace are silent and of little or no force As in the Conquerors time the Lawes did seem to be silent for in all the time of his Raign either his Sword was alwaies drawn or his hand was continually on the Hilt ready again to be drawn and as Bacon the Conqueror got by right of conquest all the lands of the Realm into his own hands in demesne taking from every man all Estate Terme property and liberty of the same except Religious and church-Church-lands and the lands of Kent and still as he gave any of it out of his own hand he reserved some retribution of rents or services or both to him and to his Heirs which reservation
is that which is called Tenure of land in which reservation he had four serviceable Institutions suitable to the state of a Conqueror 1. Marriage of the Wards Male and Female 2. Horse for service 3. Homage and Fealty And fourthly Primer Seisin Bacons uses f. 30. vide ibidem plura But Sir John Davis is of opinion Davis 21. f. 41. that though William the Conqueror made a more absolute and entire Conquest of England then Henry the second did of Ireland yet he did not seise all and had not the actuall possession of all the lands within the Realm of England vested in him by the Conquest yet he acknowledged that the book of Domesday which is an exact discription of all the Realm was made in the time of the Conqueror and that by it appeareth that the Conqueror had certain lands in Demesne which lands were in the hands of Edward the Confessor and are intituled Terrae Edwardi regis and other lands which himself had seised upon the Conquest and are entituled terrae regis and called them the ancient Demesnes of the King and of the Crown of England but he maketh no mention of the lands which he conferred on the Normans which without doubt were very great and whom by Mannors as well as by Honours he made predominant in England as to Hugh Lupus the son of his Mother Lotte and one Hoclewin a Noble man of Normandy whom she had married he gave the Earldome of Chester to hold of him as freely by his sword as he held the Crown of England by vertue of which Grant the said Hugh ordained under him four Barons B. Cr. f. 34. such an honour as no Subject in England ever enjoyed the like which also is manifest by the Grant he made to Warren a Norman of principall qualitie of the Castle of Shirburn in Norfolk B. cr f. 33. which afterwards he restored to the Heir because he had never born Armes against him by which this consequence may probably be inferred that notwithstancting his universall Conquest he had such a moderate respect to those who were neither Actors nor Opposites to his atchievement of the Crown that though upon suspitious informations he had by Grants deprived them of their estates yet in consideration of their submissive homage and fealty he gratiously restored them But to the point in hand upon this Conquest the ancient Lawes did seem to be silent Co. l. 3 71. ad lectorem for he abrogated many of them and in their stead brought in other Lawes which Sir Edward Coke confesseth efficacissima ad regni pacem tuendam were effectuall and forcible to maintain the peace of the Kingdome commanding them to be written in French and also that all causes should be pleaded and all matters of form dispatched in French thereby intending to make the Normans Language as predominant as their persons and therein intimating the Romans who upon their Conquest of any Country as well as England introduced and used their Language in all matters of state and Courts of Judicature both which are altered and changed by our Parliaments as an ancient badge of conquests and servitude So Edward the first made a Conquest of the Dominion of Wales and changed their Lawes and Customs as he hath expressed in his Charter as the Statute of Rutland whereas to their Lawes and Customes he saith Quasdam illarum de consilio procerum regni nostri de levimas quasdam correximus ac etiam quasdum alias adjiciendas faciendas decrevimus c. Some of them by the advice of the Nobles of our Kingdome we have abolished some we have corrected also some we have decreed to add and make Optimi ducis est Scire vincerâ— cerdere prudenter tempori Coke com f. 71. a. It is the part of an excellent Captain to know and to overcome and wisely to yeild unto the time Men must not fight onely with War-like Weapons and Engines but with the force of his wit and ingeny for dolus cunning and policy is much used in military affaires and standeth in equall ballance with strength and might according to the poeticall sentence Nil refert armis contingat palma dolove Nam dolus an virtus surit quis in hoste requiret By might and slight to conquer yea or no It is no matter for either in a foe Who doth require Nay often times prudent subtlety prevaileth more in such War-like enterprises then might and strength of hand and therefore are Stratagems more commonly more commodious then plain and equall encounters which a compleat Generall will alwaies practise upon a convenient occasion as Vegetius prescribeth Boni duces non aperto morte praelium in quo est commune periculum sed ex occulto semper attentant ut integris suis viribus quantum possint hostes interrimant certe vel terreant Good Captains will not fight in open field in which the danger is common and equal but will invade them unawares that with all their forces in what they can they may either destroy the enemy or otherwise put them into a fear and fright And therefore the Lacedominans when they over-came the enemy by Stratagem did sacrifice to Mars an Oxe but when by open strength a Cock of which Plutarch giveth the reason that so they might accustome their Leaders that they should not onely be valiant but also by subtle wiliness which is requisite in an Emperor they should excell in Stratagems And which by the Law of God is more to be desired for God commanded Joshua Josh 8. to lye in ambush for the City of Aye behind it and so did David when he was to fight with the Philistims Thou shalt not go up but fetch a compass behind them and come upon them over against the Mulberry Trees So it is a cunning policy in the besieged that they pretend to abound in those things which they most want So the Romans when the Capitall was besieged by the French and were pressed with the extream necessity of famine did cast down loafes of bred among their enemies Val. Max. l. 7. c. 4. that they might seem to abound in provision by which device the enemy was induced by compact to leave the siege And so in such a siege it is a commodious thing to a Captain to move in treaty of agreement and to make truce with the enemy for certain daies which usually maketh the enemy more negligent so as he may the more easily get out of their hands By this way Sylla delivered himself twice from the enemy and by the same deceit Asdruball in Spain got out from the force of Claudius Nero who had besieged him Match l. 6. f. 89. vide ibidem plura Lib. II. MISCELLANEA or an Hotch-pot Or divers scattered grounds concerning the reasonable construction of the LAW SECT I RAtio est anima legis Coke com f. 394. b. Reason is the life of the Law for then we are said to know the Law