principall reason inseperable truth of euery thing which the vnderstanding straineth out of the secret and hidden causes of thinges for as in hearbes if we touch them outwardly we do not finde nor feele any moisture in them but rather take them to be vrie vntill by pressing or distilling of them we wring out a iuyce proper to their nature So the Law doth conceiue and conclude many things of ordinarie contingents which common sense can not perceiue but rather imagineth them to be clean contrary to the truth whereas they may to a good vnderstaÌ„ding easily appeare to be true by the certaintie necessary coordination of their causes and reasons That this may be made euident I mean to annexe some particulars for the explaning therof 1 It is cleere by Law that a terme and a freehold of the selfe same thing may be both in one man at one time yet if this be deliuered to a superficiall vnderstanding it will seeme a paradoxe Tenant for terme of yeres maketh his executors dyeth the executors purchaseth the reuersion in this case both the terme fee-simple are in the executor to seueral purposes for the terme shal be assets to the vse of the testator the fee simple free inheritance for the vse of the executor his heires And if a man be seised of land of an estate for life the remainder to his executors for yeres he may deuise this term or assigne it And if lessee for yeres grant his terme to the wife of him in the reuersion to a stranger the inheritance of the husband can not extinguish the moitie of the terme because he hath the inheritance in his owne right the terme in right of his wife A man seised of land in right of his wife is attainted of felony the king seiseth the land pro vita viri the king hath but a chattel the wife the freehold for if a stranger enter the husband dye the wife shall haue an Assise 2 Likewise it will seeme strange though in Law reason it be true that a man should be remitted to his land to some intent yet not to an other As if a recouerie be had vpon a false title against tenant in taile the tenant in taile dyeth the issue entreth he is in of his first right against all but onely the recoueror So if tenant in taile discontinue his sonne heir apparant disseiseth the discontinuee to the vse of the father the tenaÌ„t in taile dieth the sonne by M. Chookes opinion is in his remitter against all but onely the discontinuee the issue in taile which hath good cause of a Formedon in the discender is of couin that A. should disseise the discontinuee against whom he recouereth he shall not be remitted in respect of him but shal be accompted a disseisor but against all others it seemeth that he is remitted Tenant in taile maketh a feoffement to the vse of his wife and his sonne being heire apparant to the intaile and dyeth the issue is remitted against all persons but onely the woman A title may be executed to some intent and yet not executed to an other And therefore if there be tenant for terme of life the remainder in fee to a stranger against whom a recouerie is had pro loco tempore in a Warrantia chartae brought by a stranger of other land he in the remainder dyeth the recouerer is impleaded and voucheth the heire of him in the remainder and recouereth tenant for life dyeth execution shall be â—ued against the heire of the land whereof his auncestor had a remainder because there was a remainder executed in the father to this intent at the time of the Warrantia chartae brought but to all other intents it was executory for it was not executed that the wife might be endowed nor for him in the remainder to bring a writ of right But the remainder in such cases is to some intents executed for if he in the remainder had aliened his remainder in Mortmaine the lord might haue entred and vpon such a remainder the lord may haue a Cessauit but the heire shall not haue an Assise of Mortdauncester 4 A thing may be extinct or in suspence in one respect and in Esse in an other respect the father being tenant in taile alieneth the land with warrantie and hath a rent charge in fee issuing out of the land of his sonne and heire apparant which rent discendeth to the sonne this rent is a good assets for the value in respect of the discontinuee and yet it is extinct in respect of the issue A man seised of a rent seruice is bound in statute staple and after purchaseth the land out of which the rent is issuing after execution the rent is extinct as to the conusor but in Esse as to the conusee A corrodie is graunted to I. S. for life who graunteth it backe to the grauntor for terme of yeares rendring rent the corrodie is in Esse as to the payment of the rent but in suspence as to the taking of the corrodie And it was lately ruled in one Caires case in the Court of wardes that if a man held land of the Queene by a certaine rent and the Queene graunteth the rent to a stranger who graunteth it to the tenant the rent is extinct as to the payment but in Esse as to the tenure The King seised of a forrest graunted the office of the forrester to one rendring rent and he graunteth the forrest to an other the forrester forfayteth his office yet the grauntor shall haue the rent So that it must needes be that the office to the intendment of law is to that intent in Esse And if a man graunt to an other a rent out of his land in fee vpon condition that if the grauntee or any of his heires dye their heire being wythin age the rent shall cease during the minoritie if the grauntee dye hys heire wythin age his wyfe shall haue dower but cessabit executio during the nonage But in this case it seemeth that if the heyre dye during his nonage the wyfe of the heire shall not haue dower of the rent because it was neuer leuiable by the sonne as it was by the father A man seysed of two acres of lande hath issue two daughters and dyeth now the rent is in suspence as to one moitie and in Esse as to an other moitie 5 The intendement of the Law is as stronge in a matter of law as the trueth it selfe in a matter in facto And therfore if A. be disseised and hys brother maketh a release with warrantie to the disseisee and afterward entreth into religion this warrantie shall be a barre to A. although that hee be lyuing for A. may haue his land by discent and therefore it seemeth to be reason that the warrantie should discende
vpon him as his heyre Note here of what validitie the intendement of Law is touching a ciuill death The Wardein of the Fleete who hath the office in fee dyeth seised and the office discendeth to his sonne and heire being then in prison the Law doth presently discharge him of imprisonment because he is to be at large the better to looke to others that be in pryson A man maketh a lease to one for terme of life rendring the first seauen yeares a rose and if he will hold the land any longer then seauen yeares that then he shall pay foure Markes yerely liuerie is made the lessee surrendreth at the ende of the first seauen yeares his estate was adiudged to be but a terme ab initio and no freehold and the writ of couenant brought against him for not repayring was qui tenuit ad terminum annorum If a man make a lease of land excepting the trees which grow vpon the land the trees are seuered in law for he hath no reuersion of them and if he sell them and after the sale make a feoffement the feoffee shall not haue them because they were seuered by the vendition or sale of them for by the exception they were seuered from the terme but not from the inheritance but by the vendition they were seuered from the inheritance If the Baylife of the land doe demaunde a rent seruice and the tenant denyeth it and the Baylife sayth that hee will distraine for it and the tenant sayth that hee shall not distrayne wherefore the Baylife dare not proceede further to take a distresse for doubt of death thys is a disseystn of the rent in the eye of the Lawe And if a rent seruice be warranted to one and the land doth escheat the Law as M. Finchden thinketh transferreth the warrantie to the land 6. One thing in the vnderstanding of Law may be of seuerall natures in seueral respects and so one writ may be two seuerall writs to two seuerall intents In an action of debt the declaration was of x. li. vpon a sale and v. li. which he had deliuered to the defendaut to redeliuer and it was held good because the action was in the debet and detinet and the warrantie of atturney and the essoine in this case shall be in placito debiti Quaere If a man lease land to one for terme of yeares rendring rent and the lessor graunteth his rent to a stranger and the lessee surrendreth this doth not extinguish the rent for now it is a rent seck which doth not depend vpon the reuersion And so one man to the vnderstanding of Law may haue seuerall capacities or respects For if a man disseise a feme sole being an inheritrix of certaine land and after he taketh her to wife and they haue issue and the husband is disseised and the disseisor leuieth a fine wyth proclamations the husband dyeth fower yeres after the proclamations and before the fifth yere be passed the issue being of full age and after the wife dyeth and the fifth yere passeth now the issue is bound as heire to his father yet he may haue other fiue yeres as heire to his mother to be accompted from the death of his Father So if I. S. be tenant of land for terme of an other mans life the remainder to an other for life the remainder to the said I. S. for terme of his life or in fee and he is disseised and the disseisor leuieth a fine with Proclamations and the fiue yeares incurre now is I. S. bound for the present estate but if he in the mesne remainder for life die hee shall haue other fiue yeres for the other estate So if a man haue an estate in land for the life of A. the reuersion to himselfe for the life of B. the remainder to himselfe for the life of C. and is disseised and the disseisour leuieth a fine with Proclamations he shal haue fiue yeares seuerally after euerie seuerall estate determined I. S. giueth land to A. his daughter in taile and hath issue B. another daughter and dieth A. dieth hauing issue C. a Precipe is brought against C. who voucheth to warrantie her selfe and B. as heires to the donour of the reuersion to haue the warrantie paramount in this case is C. both the vouchor and the vouchee A terme is deuised to one who is made executor he entreth this is an administration and an execution of the terme vnto him and he is both deuisee and executor A. couenanteth by Indenture with B. that the sonne of A. shal marrie the daughter of B. and that therefore B. shall giue vnto A. an 100. li. if the marriage did not take effect before such a day that then A. and his heires should stand seised to the vse of B. and his heires vntill the hundred pound be payed by A. his heires or executours B. dyeth and after the marriage taketh not effect the vse and possession of the land vesteth in the heire of B. but Quaere saith Brooke whether he shall be in ward or no for he is an heire and yet he is a purchasor If I. S. be Deane of P. I may giue him land to him and his successours and to him and to his heires there hee taketh both as Deane and as a priuate man and is tenant in common with him selfe so if a rent charge be graunted in such manner he shal ioine with himselfe in an Auowry Likewise the Lawe may deny one a benefite as he is I. S. and yet allow it vnto him as he is executor to I. N. and therefore if an executour be Outlawed or Excommunicated which be disabilities in Law yet as an executour hee may maintaine an action because he sueth and is to recouer to the vse of an other person and so an executour may haue an action of trespasse in his owne name without nameing his companion in the executorshippe if goods be taken out of his possession For he is possessed of them as a priuate man but he is possessed of them to the vse of an other as executour And he need not in the case aforesaid name himselfe executour For if he do it may tend to the abatement of the writ according to M. Kebles opiniō who saith that the possession of one of the executors his meaning is as he is executor is the possession of both and herewith agreeth the opinion of Newton but by their fauors though the propertie of the executors in the goods of the testator be one and the same yet the possession may be seueral for he that hath the custody of goods may only be said to be in real and actual possession of the same which kinde of possession is onely heare meant for which cause a writ of Detinue that concerneth the possession of goods shall bee brought only against that executor who is possest of the goods 7 The Law may
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
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