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
worke seueral thinges in one instant as if a disseisor make a lease for yeres and after he and the disseisee release by one deed to the tenant for yeres the Law adiudgeth the release of the disseisor first to take effect and after the release of the disseisee for there is no priuity nor estate in the lessee vpon which the release of the disseisee may inure if the Law doe not make such construction If the tenant for thirtie yeres make a lease for tenne yeares and they both surrender to him in the reuersion the surrender is good for both estates and yet the lessee for tenne yeares coulde not surrender by himselfe for defaulte of priuitie but when the other ioineth with him his surrender shall hee taken to goe before and the other to followe it Likewise if the tenaunt for terme of life surrender to the grauntee of the reuersion this is both an Attournement and also a Surrender So if a man haue land by discent by the Mother side and leaseth it for yeares the lessee couenanteth and graunteth to pay yerely to the lessour and his heires xx s. the lessor dyeth the Law in a moment will conuey the reuersion to the heire of the part of the Mother and the twenty shillings to the heire of the Fathers side because it is a sūme in grosse 8 By intendement and admittance of Law a thing suspended may bee reuiued for if the donour disseise the donee in taile and after maketh a feoffement and the tenant in taile reentreth nowe the feoffee shall haue the reuersion So if the heire in taile entreth vpon the discontinuee and maketh a feoffement vpon condition and for the condition broken reentreth and after a recouerie is had by the discontinuee the issue in taile is now restored to his first action and the entaile is reuiued for by the breach of the condition the feoffement is disanulled Tenant for life the remainder in taile the remainder in fee to the heires of the tenant for terme of life graunteth a rent charge in fee this shall charge the land during his life but it shall be suspended during the entaile and after the entaile determined it shall be reuiued and shall charge the heire of the tenant for life 9 The Law altereth the nature or substance of a thing by matter ex post facto A man seised of lande in right of his wife entreth into religion the wife alieneth the husbande is deraigned the husband may reenter into the land So if a man bee indebted to a villaine who recouereth in an action of debt and after the debtour purchaseth the mannor to which the villain is regardant and after alieneth it the villaine may nowe haue execution If a man make a lease for terme of an other mans life rendring rent and the arrerages incurre the lessor shall not haue an action of debt because he hath a franktenement in the rent but if Cesty que vie die now is the freehold as to the rent conuerted into a chattell and nowe he shall haue an action of debt Likewise a deuorce altereth the estate of frankemariage into a bare freehoold If a man adde a condition to a single Obligation after the deliuery this maketh the Obligation void for now it is not his deed and the same Law is of the rasing or enterlining of a condition after the deliuery of the Obligation If land bee giuen to one in taile and the donee giueth the land to the donour and to a straunger for terme of their liues this is a discontinuance conditionall namely if the straunger suruiue If the Sheriffe attache one by force of a Capias that is iustistable but if hee returne a Non est inuentus vpon the writ he is a trespassour ab initio If I. disseise I. S. and leuie a fine to I. N. and after I. S. entreth vpon I. N. and enfeoffeth me and I. N. entreth vpon me and I bring my Assise and I. N. pleadeth the fine in barre I may auoide the fine by shewing the matter aforesaid If a fine be leuyed of land in auncient demesne and the Lord disanulleth the fine leuied at the Common Lawe he hath restored the right to him that leuied the fine If hee which abateth after the death of the tenant in fee simple make a Feoffement vpon condition to be perfourmed within nine yeres ensuing and after the feoffee leuieth a fine with Proclamations and the fiue yeares incurre the condition is broken and the abator reentreth now the heire of him that dyed seysed may haue an Assise of Mordauncestor against the abator whereas before hee was bounde by the fine Tenant in tayle maketh a Feoffement and taketh backe an estate in fee and bindeth him selfe in statute Marchant and then maketh a Feoffement vpon condition and after the recognisance is put in execution and the tenant in taile dyeth and the heire in taile being within age entreth for the condition broken he is remitted and the recognisans auoided but otherwise it had bin if he had bin of full age for then he comming in vnder the Estoppell should not haue auoided the Estoppel nor by consequence the recognisans If my very tenant be seised of a Manor held of the King in Capite and of an other Manor held of me by knightes seruice and he is disseised of the Mannor helde of the King and afterward dyeth seised of the Manor held of mee wherevpon I seise the body of the heire and after the heire within age recouereth the Mannor held of the King nowe the King may haue my lande also in Warde because the heire shall nowe be adiudged to bee in by discent and the King shall haue the Wardeshippe of the body If my Horse strike one and after I sell the Horse and afterwarde the partye that was stroken dyeth of the stroke nowe shall the Horse be forfayted as a Deodand If a villaine inflicte vpon himselfe a mortall wounde and the Lorde seyseth his goods and then the Villaine dyeth nowe shall the Queene haue his goods because hee is Felo de se A man administreth of his owne wrong and after taketh letters of Administration of the Ordinarie this shall relate to the death of the intestate the heire chargeth land which is after recouered in a writ of Dower the woman shal holde it discharged Thus it is euident that the vnderstanding of the Lawe worketh especially vpon relations on the first causes of thinges reducing through many straites of colourable pretenses and obiections the right of a thing to him to whom it appertaineth according to the qualitie and exigence of the said right and title so that the vnderstanding of the Student when it entreth into the suruey of these intricate and hidden pointes must bee of this abilitie to compound thinges and to resolue them by imagination to builde and destroy and to turne sayle
lawes publikely receyued do strengthen it so that in the written lawes there is not onely a safegard for innocency against iniury but also for the Magistrate against the importunitie of the people But as wayfaring men whilest they trauaile are not afraide of going a stray when Mercuries image doth point out vnto them the way that they are to goe so good men when a certaine law is proposed vnto them when by it they know what euery man ought to perform what to auoyde they are secured and do wholy repose them selues in the protection of lawes To the intent that the Hebrewes might well agree haue good order amongest them selues God did enact and establish certain lawes that they might iudge by prescript and rule least the law being ambiguous might procure dissentions And other people and nations haue either by the tyrannons domination of Magistrates or the outragious discord of the people bin enforced to receiue Lawes as the square and measure of their actions In the Citie of Athens when there was continuall debate about the difficult points of the law thē in force there arose three factions of men not of the worst sort but yet not well agreeing in matters of state the Citie by this meane being greatly molested and the hartes of men being edged exasperated by the festered sore and cankerworme of contention the gouernment was committed to Solon he surueying by depth of iudgement the weake and impuissant estate of the Citie made Lawes whereby peace and contentment were restored And when he saw that these Lawes were the sinewes of the good estate of the citie he determined that whosoeuer should hold any iudiciall place should in precise tearmes take oath that he would iudge according to the Lawes This was also the cause why the Romanes dyd flie to a written law the Magistrates dyd arrogate assume too much to them selues the people did exceedingly grudge and murmure that their honest libertie was impeached by the maner of their ruling and the best men were at variance in matters of Law so that it was thought meete that some equall Lawes should be in force whereby the rashnesse of the people the violence of the Magistrates might be moderated For this cause the Lawes called the Twelue tables were prescribed to the City which yoak was willingly receiued because without laws they knew their common weal could not prosper nor continue And as there ought to be a certain forme of Lawes so these lawes ought not to be altered or abrogated wythout great occasion the euident aduantage of the cōmon weale There was a Law amongest them of Locros that whosoeuer would make a motion or inuectiue against any receiued law should therof deliuer his mind hauing an halter about his neck if it were agreed by the assembly that the thing which he indeuored to perswade were for the good of the common weale the man was safe receiued cōmendation but if it were disallowed and reiected as an vnprofitable admonition he was streight way hanged and receiued death as the guerdon of his innouation And in Athens there were a kind of men called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 who in all publike meetings did sit amongest the chiefe Magistrates did put them in mind not to decree any thing against the Lawes in force Thus it is euident that both the making maintayning of lawes is necessarie And it is rightly said of Cicero that the Law is as necessary for the gouermēt of a state as the soule mind is for the preseruation of the bodie this saith he is the bond of all dignities and degrees which are in the common weale this is the foundation of libertie the fountaine of equitie The will counsel decree of the Citie is contained in the lawes as the bodie can doe nothing without the soule so a citie without Law cannot vse her actions power or aucthoritie The Magistrates are the ministers of Lawes the Iudges are interpreters the people are the Seruants that they may haue true libertie The Law is thus defined by Cicero Summa ratio insita á natura quae iubeat ea quae facienda sunt prohibeatque contraria A principall reason ingrafted in vs by nature which commaundeth the things that are to be done and forbiddeth the contrarie and all the particuler and seuerall lawes of diuers nations are but the branches of this law for the lawes be certain and cleere intelligences and rules whereby the mind is addressed to pursue that which is good and to eschew the cōtrarie and they offer to the mind the formes and Ideaes of vertue and dishonestie So that in the sacred precepts of law as in a christall glasse a man may perceiue what he may doe with praise what he cannot doe without infamie for the common places which be handled by diuers of common duties of that which is truly good of that which is perfect happines of the best estate of a common weale do not so sufficiently qualifie and instruct the vnderstanding as the law it selfe But here I shal be crossed by an other obiection that great tedious are the labors which are to be sustained in the study of the law Surely there is nothing of weight or woorth which may be compassed without paine trauaile and yet if the paine be compared and ballanced with the profite it is but as a few drops of haile to a whole shower of Manna What would not a towardly man do what would he not vndertake by his wisedome warines to keep all danger from the bodies heads and lifes of the innocent to preserue his memorie from obliuion and silence to be of great accompt amongst the greatest to attaine to that knowledge which is the highest of all humane artes and sciences and though it were as hard a matter for a young gentleman to gaine the knowledge of the lawe as it was for Phaeton to ascend vnto the Chariot of the Sunne who ere he could accomplish that was to passe through vncouth wayes and by the ghastly formes of deformed creatures by the terrible Signes of the Bull the Lion and the Scorpion though I say a Studient ought to haue all the lawe perfect and to passe through a multitude of cases iudgements Statutes arguments treatises comments questions diuersities expositions customes of courtes pleadings mootes readings and such like yet sith there is no arte nor science by which the common weale receiueth so great benefit sith there is no course of life no time of age no estate of men which can either florish or be without the safeguard of lawes and sith the difficultie of the science is rewarded by the dignitie credit and ample fortune which belongeth vnto it the hope of them which employ themselues in this studie ought not to waxe faint nor their mindes to be daunted with the labour and paine which all artes require but they ought to be incited and allured to proceede in their studies
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
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
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
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
that writ better then hee who in handling Logicall places doth illustrate them with many examples but with neuer a rule What manner of teaching is this to shewe vnto thee that others did thus but not to shewe why they did so which default is for want of rules in which the reason and knowledge of doing thinges aright is conteyned A man cannot make a shooe by a number of lastes but hee must haue instruction of one that is skilfull in the trade Some againe will haue euery thing confirmed by the authorities and testimonies of them that be learned thinking that onely to be the fit way of teaching But the certaine and necessarie reasons of the Mathematikes are not in all artes to be required Neyther is there an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or accurate kinde of handling things in all sciences alike to be vsed and obserued but in euery science things are so to be ordred and digested as the subiect or matter doth require where about it is employed and so farre forth as may be agreeable to the profession of the science For a Geometrician and a Carpenter doe diuersly handle and vse a right line the one as it may be profitable to his worke which he carueth the other searcheth what kinde of thing it is and of what nature and so other sciences must be ruled by the subiect which they contemplate least there be more 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 then 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in them neyther is a cause or reason to be exacted in all things for of many it is sufficient to haue this knowledge quòd ita sunt though we cannot know propter quod ita sunt as of principles which are the first and highest rules in artes and sciences and therefore no reason can be yeelded because they are prima the very first in the discourse of reason and therefore 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for theÌ„selues to be beleeued Surely Methode is so conuenient a thing in the studie of the lawe that without it neither can the vnderstanding be well taught nor the memorie well directed It is not enough to haue a great heape of things that are to be read vnlesse the vse or order and manner of reading them â—e well vnderstoode and as in things that â—e fit for banquets thoâ—gh there be great varietie of sweete meates yet there is nothing more vnpleasant or vnholsome if they be mingled together so the Student must haue a care least the order of his reading be confounded least the last things be handled in the first place and these thinges which should be in the middest be put in the last place whiche whosoeuer doe they cannot onely not comprehende the thinges which they studie but vtterly debilitate and weaken the strength of the memorie therefore it is good for Students to vse an artificiall Analysis or resolution of things into their principles which may teach to deuide the whole into his partes and to subdeuide partes into parcells and in the end to make a consent and coherence of the entire thing and his partes for though the skilfull partition of things be profitable and pleasant for the memorie yet the Synthesis that is the apt composition coordination and mutuall dependance of them doth more satisfie the vnderstanding Therefore Polybius a iudicious aucthor saith well that they which thinke by the knowledge of particulars dispersed to attaine to the full and perfit knowledge of the entire thing doe no lesse erre then hee who viewing the partes of a handsome and comely body seuerally and apart doth therefore imagin that hee knoweth the whole feature and portraicture of the same man who if hee had beheld these parts ioyned together and compacted and moued by the spirit of life would haue iudged farre otherwise For though a man may haue a confused notion or conceite of the whole by viewing the seperate and disioyned partes yet it is not possible that hee should haue certaine knowledge of the same no more then a man by seeing perticular Mappes of Cities may certainely perceiue the figure situation and order of the whole world But he that can easily resolue things may easily compound for when he knoweth the particular sense and vse of the thinges resolued hee may easily gather a generall knowledge of the whole thing that is a generall knowledge of manye particulars whiche make one entire thing The forme of this Analysis following whiche is of Maister Littleton his two Chapiters of fee simple and fee taile I doe offer to the Student as a thing to be considered of because it is incident to this purpose which though it gaine not his good liking yet if it minister but occasion vnto him to aduenture vpon the conueyance of some other Analysis that may receiue the generall approbation and iust applause of the learned I shall thinke my labour herein well bestowed and woulde gladlye reape profit by other mens presidents The Analysis of Littletons Chapiter of Fee simple Tenure in fee simple may bee considered By the definition Inuented Fee simple is as much to say as a lawfull and pure inheritance Expounded He that will purchase lands in fee simple must haue these wordes in his purchase To haue and to hold to him and to his heires for these words his heires make the estate of inheritance and he that lacketh this word heires and hath to haue and to hold to him and to his assignes for euer hath estate but for terme of life By the tenant in fee simple who is after two sorts to be considered Generally Tenant in fee simple is he which hath landes or tenemeâ—â—s to hold to him and to his heires for euer Particularly By purchase as when a man both lands and tâ—â—ements by his deede or by his agreement to the possession of which he commeth not by title of discent from none of his auncestors or his â—osins but by his owne act By discent who may be thus described He that is tenant in fee simple must be of the whole bloud wâ—â— may bee proued by two examples 1 If a man haue issue two Sonnes by two venters and the elder purchaseth lands in fee simple and dieth without issue the yonger brother shall not haue the land but the vncle of the elder brother or some other his â—ye cosins shall haue it for that the yonger is but of the halfe bloud to the elder brother 2. If a man haue a Sonne and daughter by one venter a Sonne by an other venter and the sonne by the first venter purchaseth lands in fee simple and dieth without issue the sister shall haue the land by discent as heire vnto her brother for that the sister is of the whole bloud to the elder brother By the properties of fee simple 1 Inheritance in fee simple may lineallie discend but not lineally ascende which may be illustrated by sixe prerogatiues 1 By the vncles prerogatiue If the fathers sonne purchase land in fee simple the vncle shal haue the