- II: Coke’s Speech and Charge At the Norwich Assizes
- (preface, Written By Robert Prickett)
- The Lord Coke, the Preface to His Charge Given At the Assises Houlden In Norwich, the Fourth of August, 1606.
- ¶ Here Followeth the Words of His Charge In Order.
- III: Excerpts From the Small Treatises
- A. Book of Entries
- The Preface of Sr. Edward Coke, Knight Lord Chiefe Justice of England of Pleas Before the King Himselfe to Be Holden Assigned, and One of the Lords of His Majesties Most Honorable Privie Councell.
- B. the Compleat Copyholder
- Sec. XXXIII.
- C. Little Treatise On Baile and Mainprize
- The Conclusion With Advertisment.
- IV: Excerpts From the Institutes
- A. the First Part of the Institutes
- The Preface.
- Section 1 Fee Simple
- Section 2 Fee Simple
- Section 3 Fee Simple
- Section 4 Fee Simple
- Section 5 Fee Simple
- Section 7 Fee Simple
- Section 8 Fee Simple
- Section 9 Fee Simple
- Section 10 Fee Simple
- Section 11 Fee Simple
- Section 12 Fee Simple
- Section 21 Fee Tail, Part 2
- Section 69 Tenant At Will, Part 2
- Section 80 Tenant By the Verge, Part 3
- Section 96 Escuage, Part 2
- Section 108 Knight’s Service, Part 6
- Section 138 Frankalmoin, Part 5
- Section 170 Tenure In Burgage, Part 9
- Section 199 Villenage, Part 18
- Section 342 Conditional Estates, Part 17
- Section 366 Conditional Estates, Part 41
- Section 372 Conditional Estates, Part 47
- Section 412 Descents, Part 27
- Section 464 Releases, Part 20
- Section 481 Releases, Part 37
- Section 723 Warranty, Part 30
- Section 728 Fee Warranty, Part 35
- B. the Second Part of the Institutes
- Deo, Patriae, Tibi.
- Magna Charta,
- C. The Third Part of the Institutes
- Deo, Patriae, Tibi.
- Cap. I. of High Treason.
- Cap. II. of Petit Treason.
- Cap. III. of Misprision of Treason.
- | Cap. IV. Felony By Compassing Or Conspiring to Kill the King, Or Any Lord Or Other, of the Kings Counsell.
- Cap. V. of Heresie.
- | Cap. VI. of Felony By Conjuration, Witchcraft, Sorcery, Or Inchantment.
- | Cap. Lxii. of Indictments.
- D. The Fourth Part of the Institutes
- Deo, Patriae, Tibi.
- Cap. I. of What Persons This Court Consisteth.
- Cap. VII. the Court of Kings Bench, Coram Rege. 1
A. The First Part of the Institutes
Thomas de Littleton was a Justice of Common Pleas in the later half of the fifteenth century, serving from 1466 to 1481. He wrote a textbook of property law, Tenures, during a time of considerable political unrest; the War of the Roses ran throughout his time on the bench. Dramatically updating a book of the same name then already a century old itself, Littleton’s Tenures, perhaps appearing about 1470, was a comprehensivetreatise on the estates by which land could be held, as well as on the procedures for transfers of interest in land. The feudal property system was then at its peak, and the heart of its economy was the complicated system by which various people held an interest in land in return for services to others; Littleton’s book brought considerable clarity to the area, and it remained the leading treatise for over a century.
By Coke’s day, Littleton’s treatise was, however, beginning to age quickly. Coke glossed the text, section by section, providing annotations of later cases and statutes that modified or applied ideas in Littleton’s text. More important, perhaps, he added a trove of ideas on related matters, often matters only casually related to the text he had before him. His commentary includes observations on the nature of law, the practice and study of law, and of man in general, as well as of the particular problems Littleton had placed in each section.
Coke upon Littleton soon became the essential tool for the study of the law. Its mastery was required of every law student for the next century and a half. The difficulty of the task for a fledgling lawyer was notorious, but the rewards were seen by most students as well worthwhile. A fine illustration of the point is in the experience of young Joseph Story, long before he became a U.S. Supreme Court justice or a law professor. In 1799, his tutor, Samuel Sewell, required him to read “the intricate, crabbed, and obsolete learning of Coke on Littleton,” a task he found, initially, quite overwhelming. “I took it up, and after trying it day after day with very little success, I sat myself down and wept bitterly. My tears dropped upon the book, and stained its pages.” With tenacity, though, he began “to see daylight, ay and to feel that I could comprehend and reason upon the text and the comments. . . . The critical period was passed; I no longer hesitated.”—Ed.
Epigrams from the Title Page:
Quid te vana juvant miserae ludibria chartae?
Hoc lege, quod possis dicere jure meum est.
Major haereditas venit unicuique; nostrum à Jure, et Legibus, quàm à Parentibus.
The First Part of the Institutes of the Lawes of England: Or A Commentary upon Littleton, Not the name of the Author only, but of the Law it selfe.
Deo, Patriae, Tibi.
The name and degree of our Author.Our Author, a Gentleman of an ancient and faire descended Family de Littleton, tooke his name of a Towne so called, as that famous chiefe Justice Sir John de Markham, and divers of our Profession and others have done.
Thomas de Littleton Lord of Frankley, had issue Elizabeth his only child, and did beare the Armes of his Ancestors,His Armes.viz. Argent, a Chevron betweene three Escalop shels Sable. The bearing hereof is verie ancient and honourable, for the Senators of Rome did weare bracelets of Escalop shels about their armes, and the Knights of the Honourable Order of S. Michael in France do weare a coller of Gold in the forme of Escalop shels at this day. Hereof much more might be said, but it belongs unto others.
With this Elizabeth married, Thomas Westcote Esquire, the Kings servant in Court,Thomas Westcote. a Gentleman anciently descended, who bare Argent, a Bend betweene two Cotisses Sable, a Bordure engrayled Gules, Bezantie.
But she being faire and of a noble spirit, and having large possessions and inheritance from her Ancestors de Littleton, and from her mother the daughter and heire of Richard de Quatermains, and other her Ancestors, (ready meanes in time to worke her owne desire) resolved to continue the honour of her name (as did the daughter and heire of Charleton with one of the sonnes of Knightly, and divers others) and therefore prudently, whilest it was in her owne power, provided by Westcotes assent before marriage, that her issue inheritable should be called by the name of de Littleton. These two had issue foure sons, Thomas, Nicholas, Edmund and Guy, and foure daughters.
Our Author bare his Mothers surname.Thomas the eldest was our Author, who bare his fathers Christian name Thomas, and his mothers surname de Littleton, and the armes de Littleton also; and so doth his posteritie beare both name and armes to this day.
Camden in his Britannia saith thus; Thomas Littleton alias Westcote, the famous Lawyer to whose Treatise of Tenures the Students of the Common Law are no lesse beholding, than the Civilians to Justinians Institutes.
The dignitie of this faire descended Family de Littleton hath growne up together, and spread it selfe abroad by matches with many other ancient and honourable Families, to many worthy and fruitfull branches, whose posteritie flourish at this day, and quartereth many faire Coats, and * enjoyeth fruitfull and opulent inheritances thereby.
He was of the Inner Temple, and read learnedly upon the Statute of W.2. De donis conditionalibus, which we have. He was afterward called ad statum & gradum Servientis ad Legem, and was Steward of the Court of the Marshalsey of the Kings houshold, and for his worthinesse was made by King H.6. his Serjeant,Kings Serjeant. and rode Justice of Assise the Northern Circuit, which places he held under King E.4. untill he in the sixth yeare of his reigne constituted him one of the Judges of the Court of Common Pleas,Judge of the Common Pleas. and then he rode North-amptonshire Circuit. The same King in the 15. yeare of his reigne, with the Prince, and other Nobles and Gentlemen of ancient bloud, honoured him with Knighthood of the Bath.Knight of the Bath.
He compiled this Book when he was Judge, after the fourteenth yeare of the reigne of King E.4. but the certain time we cannot yet attain unto,When hee wrote this Booke. but (as we conceive) it was not long before his death, because it wanted his last hand, for that Tenant by Elegit, Statute Merchant, & Staple, were in the table of the first printed Booke, and yet he never wrote of them.
Our Author in composing this Work had great furtherance, in that he flourished in the time of many famous and expert Sages of the Law.The deceased of his Contemporaries. Sir Richard Newton, Sir John Prisot, Sir Robert Danby, Sir Thomas Brian, Sir Pierce Arderne, Sir Richard Choke, Walter Moyle, William Paston, Robert Danvers, William Ascough, and other Justices of the Court of Common Pleas: And of the Kings Bench, Sir John June, Sir John Hody, Sir John Fortescue, Sir John Markham, Sir Thomas Billing, and other excellent men flourished in his time.
And of worldly blessings I account it not the least that in the beginning of my study of the Lawes of this Realme, the Courts of Justice, both of Equitie & of Law, were furnished with men of excellent Judgement, Gravitie, and Wisdome; As in the Chancerie, Sir Nicholas Bacon, and after him Sir Thomas Bromley. In the Exchequer Chamber, the Lord Burghley, Lord high Treasurer of England, and Sir Walter Mildemay Chancellor of the Exchequer. In the Kings Bench, Sir Christopher Wray, and after him Sir John Popham. In the Common Pleas, Sir James Dyer, and after him Sir Edmund Anderson. In the Court of Exchequer, Sir Edward Saunders, after him Sir John Jefferey, and after him Sir Roger Manwood, men famous (amongst many others) in their severall places, and flourished, and were all honoured and preferred by that thrice noble and vertuous Queene Elizabeth of ever blessed memorie. Of these reverend Judges, and others their Associates, I must ingenuously confesse, that in her reigne I learned many things which in these Institutes I have published: And of this Queene I may say, that as the Rose is the queene of flowers, and smelleth more sweetly when it is pluckt from the branch: so I may say and justifie,Queene Elizabeth. that shee by just desert was the Queene of Queenes, and of Kings also, for Religion, Pietie, Magnanimitie, and Justice; who now by remembrance thereof, since Almightie God gathered her to himselfe, is of greater honour and renowne, than when she was living in this world. You cannot question what Rose I meane; for take the Red or the White, she was, not onely by royall descent, and inherent Birthright, but by Rosiall Beautie also, heire to both.
And though we wish by our labours (which are but Canabula Legis, the cradles of the Law) Delight and Profit to all the Students of the Law, in their beginning of their study, (to whom the first part of the Institutes is intended) yet principally to my loving friends, the Students of the honourable and worthy Societies of the Inner Temple,Inner Temple. Cliffords Inne. Lyons Inne. and Cliffords Inne, and of Lyons Inne also, where I was sometime Reader. And yet of them more particularly to such as have been of that famous University of Cambridge, Alma mea mater. And to my much honoured & beloved Allies & Friends ofthe Counties of Norfolke, my deare & native Country; and of Suffolke, where I passed my middle age; & of Buckinghamshire, where in my old age I live. In which Counties, we out of former Collections compiled these Institutes. But now returne we againe to our Author.
His marriage.He married with Johan one of the daughters and coheires of William Burley of Broomescroft Castle in the Countie of Salop, a Gentleman of ancient descent, and bare the Armes of his Family, Argent, a Fesse Checkie Or and Azure, upon a Lion Rampant Sable, armed Gules. And by her had three sons,His issue. Sir William, Richard the Lawyer, and Thomas.
The establishment of his posteritie by the matches of his three sonnes, with Vertue & good Bloud.In his lifetime, he, as a loving Father and a wise man, provided matches for these three sons, in vertuous and ancient Families, that is to say, for his son Sir William, Ellen Daughter and Coheire of Thomas Welsh Esquire, who by her had issue Johan his onely childe, married to Sir John Aston of Tixall Knight: And for the second wife of Sir William, Mary the Daughter of William Whittington Esquire, whose posteritie in Worcestershire flourish to this day. For Richard Littleton his second son, to whom he gave good possessions of inheritance,He gave possessions of inheritance to his younger sons, for their better advancement. Alice daughter and heire of William Winsbury of Pilleton-hall in the Countie of Stafford, Esquire, whose posteritie prosper in Staffordshire to this day. And for Thomas his third son, to whom hee gave good possessions of inheritance, Anne daughter and heire of John Botreaux Esquire, whose posteritie in Shropshire continue prosperously to this day. Thus advanced he his posteritie, and his posteritie by imitation of his Vertues have honoured him.
His last Will.He made his last Will & Testament the 22. day of August in the 21. yeare of the reigne of King Edward the fourth, whereof he made his three sons, a Parson,His Executors. a Vicar, & a Servant of his Executors, & constituted supervisor thereof, his true & faithfull friend John Alcock Doctor of Law, of the famous University of Cambridge,His Superviser. then Bishop of Worcester, a man of singular Pietie, Devotion, Chastitie, Temperance, & Holinesse of life, who amongst other of his pious & charitable works, founded Jesus College in Cambridge, a fit and fast friend to our honourable & vertuous Judge.
His age.He left this life in his great & good age, on the 23. day of the month of August, in the said 21. yeare of the reigne of King Edward the fourth:His departure. For it is observed for a speciall blessing of Almighty God, that few or none of that profession die Intestatus & improles without Will & without Child; which last Will was proved the 8. of November following in the Prerogative Court of Canterbury, for that hee had Bona notabilia in divers Diocesses. But yet our Author liveth still in ore omnium juris prudentium.
Littleton is named in 1.H.7. and in 21.H.7. Some do hold, that it is no error either in the Reporter or Printer; but that it was Richard the son of our Author, who in those daies professed the Law, and had read upon the statute of West. 2.quia multaper malitiam,* , unto whom his Father dedicated his Book; And this Richard died at Pilleton hall in Staffordsh. in 9.H.8.
His Sepulchre.The body of our Author is honourably interred in the Cathedrall Church of Worcester, under a faire Tomb of Marble, with his statue of portraiture upon it, together with his own match, & the matches of some of his Ancestors, and with a memoriall of his principall titles, and out of the mouth of his statue proceedeth this praier, Fili Dei miserere mei, which he himselfe caused to be made and finished in his life time, & remaineth to this day. His wife Johan Lady Littleton survived him, and left a great inheritance of her Father, and Ellen her Mother, daughter & heire of John Grendon Esquire, and other her Ancestors, to Sir William Littleton her son.
This Work was not published in print, either by our Author himselfe, or Richard his son, or any other, untill after the deceases both of our Author, and of Richard his son.When this Worke was published. For I finde it not cited in any Booke or Report, before Sir Anthony Fitzherbert cited him in his Natura Brevium; who published that Booke of his Natura Brevium in 26.H.8. Which Work of our Author, in respect of the excellencie thereof, by all probabilitie should have beene cited in the Reports of the reignes of E.5. R.3. H.7. or H.8. or by S. Jermyn in his Booke of the Doctor and Student, which he published in the three and twentieth yeare of H.8. if in those dayes our Authors Booke had beene printed.Nota. And yet you shall observe, that Time doth ever give greater authoritie to Works and Writings that are of great and profound learning, than at the first they had.When this Work was first imprinted. The first impression that I finde of our Authors Booke was at Roan in France by William le Tailier (for that it was written in French) Ad instantiam, Richardi Pinson, at the instance of Richard Pinson the Printer of King H.8. before the said Book of Natura Brevium was published; and therefore upon these and other things that we have seene, wee are of opinion, that it was first printed about the foure and twentieth yeare of the reigne of King H.8. since which time hee hath beene commonly cited, and (as he deserves) more and more highly esteemed.
His Picture.He that is desirous to see his picture, may in the Churches of Frankley and Hales Owen see the grave and reverend countenance of our Author, the outward man, but he hath left this Booke, as a figure of that higher & nobler part,The figure of his Minde. that is, of the excellent and rare endowments of his minde, especially in the profound knowledge of the fundamentall Lawes of this Realme. He that diligently reads this his excellent Work, shall behold the childe and figure of his minde, which the more often he beholds in the visiall line, and well observes him, the more shall he justly admire the judgement of our Author, and increase his owne. This only is desired, that he had written of other parts of the Law, and specially of the rules of good pleading (the heart-string of the Common Law) wherein hee excelled: for of him might the saying of our English Poet be verified;
- Thereto he could indite and maken a thing,
- There was no Wight could pinch at his writing.
Good pleading.So farre from exception, as none could pinch at it. This skill of good pleading he highly in this Work commended to his sonne, and under his name to all other Students sons of his Law. He was learned also in that Art, which is so necessarie to a compleat Lawyer,Logicke. I meane Logick, as you shall perceive by reading of these Institutes, wherein are observed his Syllogismes, Inductions, and other arguments; and his Definitions, Descriptions, Divisions, Etymologies, Derivations, Significations, and the like. Certaine it is, that when a great learned man (who is long in making) dieth, much learning dieth with him.
The commendation of his Worke.That which we have formerly written, that this Book is the ornament of the Common Law, and the most perfect and absolute Work that ever was written in any humane Science; and in another place, that which I affirmed and tooke upon me to maintaine against all opposites whatsoever, that it is a Work of as absolute perfection in his kinde, and as free from errour as any book that I have knowne to be written of any humane learning, shall to the diligent and observing Reader of these Institutes be made manifest, and we by them (which is but a Commentarie upon him) be deemed to have fully satisfied that, which we in former times have so confidently affirmed and assumed. His greatest commendation, because it is of greatest profit to us, is, that by this excellent Work, which he had studiously learned of others, he faithfully taught all the professors of the Law in succeeding ages. The victorie is not great to overthrow his opposites, for there was never any learned man in the Law, that understood our Author, but concurred with me in his commendation: Habae enim justam venerationem quicquid excellit; For whatsoever excelleth hath just honour due to it. Such as in words have endevoured to offer him disgrace, never understood him, and therefore we leave them in their ignorance, and wish that by these our Labors they may know the truth, and be converted. But herein we will proceed no further: For, Stultum est absurdas opiniones accuratius refellere, It is meere folly to confute absurd opinions with too much curiositie.
And albeit our Author in his three Books cites not many authorities, yet he holdeth no opinion in any of them, but is proved and approved by these two faithfull witnesses in matter of Law, Authoritie, and Reason. Certaine it is, when hee raiseth any question, and sheweth the reason on both sides, the latter opinion is his owne, and is consonant to Law. We have knowne many of his cases drawne in question,Nota. but never could find any judgement given against any of them, which we cannot affirme of any other Booke or Edition of our Law. In the reigne of our late Soveraigne Lord King James of famous and ever blessed memorie, it came in question upon a demurrer in Law, whether the release to one trespasser should be available or no to his companion, Sir Henry Hobart that honourable Judge and great Sage of the Law, and those reverend and learned Judges, Warburton, Winch, and Nichols his companions, gave judgement according to the opinion of our Author, and openly said, That they owed so great reverence to Littleton, as they would not have his Case disputed or questioned: and the like you shall finde in this part of the Institutes. Thus much (though not so much as his due) have we spoken of him, both to set out his life, because he is our Author, and for the imitation of him by others of our Profession.
What is endevoured by these Institutes.We have in these Institutes endevoured to open the true sense of every of his particular Cases, and the extent of everie of the same either in expresse words, or by implication, and where any of them are altered by any latter Act of Parliament, to observe the same, and wherein the alteration consisteth. Certaine it is, that there is never a period, nor (for the most part) a word, nor an &c. but affordeth excellent matter of learning. But the module of a Preface cannot expresse the observations that are made in this Worke, of the deepe Judgement and notable Invention of our Author. We have by comparison of the late and moderne impressions with the originall print, vindicated our Author from two injuries; First, from divers corruptions in the late and moderne prints, and restored our Author to his owne: Secondly, from all additions and incroachments upon him, that nothing might appeare in his worke but his owne.
The benefit of these Institutes.Our hope is, that the young Student, who heretofore meeting at the first, and wrastling with as difficult termes and matter, as in many yeares after, was at the first discouraged, as many have beene, may by reading these Institutes, have the difficultie and darknesse both of the Matter, and of the Termes & words of Art in the beginnings of his study facilitated & explained unto him, to the end he may proceed in his study cheerfully, and with delight; and therefore I have termed them Institutes,Wherefore called Institutes. because my desire is, they should institute and instruct the studious, and guide him in a ready way to the knowledge of the nationall Lawes of England.
Wherefore published in English.This part we have (and not without president) published in English, for that they are an Introduction to the knowledge of the nationall lawes of the Realme; a work necessary, and yet heretofore not undertaken by any, albeit in all other professions there are the like. Wee have left our Author to speake his owne language, & have translated him into English, to the end that any of the Nobilitie, or Gentrie of this Realme, or of any other estate, or profession whatsoever, that will be pleased to read him & these Institutes, mayunderstand the language wherein they are written.
I cannot conjecture that the generall communicating of these Lawes in the English tongue can worke any inconvenience, but introduce great profit, seeing that Ignorantia Juris non excusat, Ignorance of the Law excuseth not.Regula. And herein I am justified by the wisdome of a Parliament; the words whereof be,That the Lawes and Customes of this Realme the rather should be reasonably perceived and knowne, and better understood by the tongue used in this Realme, and by so much everie man might the better governe himselfe without offending of the Law, and the better keepe, save, and defend his heritage and possessions. And in divers Regions and Countries where the King, the Nobles, and other of the said Realme have beene, good governance and full right is done to everie man, because that the Lawes and Customes be learned and used in the Tongue of the Countrey:Regula. as more at large by the said Act, and the purview thereofmayappeare: Et neminem oportet esse sapientiorem Legibus, No man ought to be wiser than the Law.
And true it is that our Books of Reports and Statutes, in ancient times were written in such French as in those times was commonly spoken and written by the French themselves. But this kind of French that our Author hath used is most commonly written and read,Our Authors kinde of French. and verie rarely spoken, and therefore cannot be either pure, or well pronounced. Yet the change thereof (having been so long accustomed) should be without any profit, but not without great danger and difficultie: For so many ancient Termes and words drawne from that legall French, are growne to be Vocabula artis, Vocables of Art, so apt & significant to expresse the true sense of the Lawes, & are so woven into the lawes themselves, as it is in a manner impossible to change them, neither ought legall termes to be changed.
In Schoole Divinitie, and amongst the Glossographers and Interpreters of the Civill and Canon Lawes, in Logick and in other liberall Sciences, you shall meet with a whole Army of words, which cannot defend themselves in Bello Grammaticali, in the Grammaticall Warre, and yet are more significant, compendious, and effectuall to expresse the true sense of the matter, than if they were expressed in pure Latine.
Wherefore called the first part.This Worke wee have called The first part of the Institutes, for two causes: First, for that our Author is the first booke that our Student taketh in hand. Secondly, for that there are some other parts of Institutes not yet published, (viz.) The second part being a Commentarie upon the Statute of Magna Charta, Westm. I. and other old Statutes. The third part treateth of Criminall causes and Pleas of the Crowne: which three parts we have by the goodnesse of Almightie God already finished. The fourth part wee have purposed to be of the Jurisdiction of Courts; but hereof we have onely collected some materialls towards the raising of so great and honourable a Building. Wee have by the goodnesse and assistance of Almightie God brought this twelfth Worke to an end: In the eleven Bookes of our Reports wee have related the opinions and judgements of others; but herein we have set downe our owne.
Before I entred into any of these parts of our Institutes, I acknowledging mine owne weaknesse and want of judgement to undertake so great Workes, directed my humble Suit and Prayer to the Author of all Goodnesse and Wisdome, out of the Booke of Wisdome;Pater & Deus misericordiae, da mihi fedium tuarum assistriceur sapientiam, mitte eam de Coelis sanctis tuis & à sede magnitudinis tuae, ut mecum sit & mecum laboret, ut sciam quid acceptum sit apud te; Oh Father and God of mercie, give me wisdome, the Assistant of thy seats; Oh, send her out of thy holy Heavens, and from the seat of thy Greatnesse, that shee may be present with mee and labour with mee, that I may know what is pleasing unto thee, Amen.
Our Author hath divided his whole Worke into three Bookes: In his first he hath divided Estates in Lands and Tenements, in this manner; For; Res per divisionem melius aperiuntur. ,
Our Author dealt onely with the Estates and termes abovesaid; Somewhat Wee shall speake of Estates by force of certaine Statutes, as of Statute Merchant, Statute Staple, and Elegit, (whereof our Author intended to have written) and likewise to Executors to whom lands are devised for payment of debts, and the like.
I shall desire, that the learned Reader will not conceive any opinionagainst any part of this painfull and large Volume, untill hee shall have advisedly read over the whole, and diligently searched out and well considered of the severall Authorities, Proofes, and Reasons which wee have cited and set downe for warrant and confirmation of our opinions thorowout this whole worke.
Mine advice to the Student is, That before hee read any part of our Commentaries upon any Section, that first he read againe and againe our Author himselfe in that Section, and doe his best endevours, first of himselfe, and then by conference with others, (which is the life of Study) to understand it, and then to read our Commentarie thereupon, and no more at any one time, than he is able with delight to beare away, and after to meditate thereon, which is the life of reading. But of this Argument we have for the better direction of our Student in his Study, spoken in our Epistle to our first Booke of Reports.
And albeit the Reader shall not at any one day (doe what he can) reach to the meaning of our Author, or of our Commentaries, yet let him no way discourage himselfe, but proceed; for on some other day, in some other place, that doubt will be cleared. Our Labours herein are drawne out to this great Volume, for that our Author is twice repeated, once in French, and againe in English.
| Tenant in Fee simple is hee which hath Lands or Tenements to hold to him and his heires for ever. And it is called in Latine, Feodum Simplex, for Feodum is the same that Inheritance is, and Simplex is as much to say, as lawfull or pure. And so Feodum simplex signifies a lawfull or pure Inheritance. For if a man would purchase lands or tenements in fee simple, it behoveth him to have these words in his purchase, To have and to hold to him and to his Heires: for these words (his Heires) make the Estate of the Inheritance. For if a man purchase Lands by these words, To have and to hold to him for ever; or by these words, To have and to hold to him and his Assignes for ever: in these two cases hee hath but an estate for terme of life, for that there lack these words (his Heires) which words onely make an Estate of Inheritance in all Feoffments and Grants.
In Latine Tenens, is derived of the verb Teneo and hath in the Latin five significations. 1. It signifies the estate of the Land, as when the Tenant in a Praecipe of land pleads, Quod non tener, etc. this is as much as to say, That hee hath not seisin of the Freehold of the Land in question. And in this sense doth our Author take it in this place: & therefore he saith, tenant in fee simple is hee which hath lands to hold to him & his heires. 2. It signifieth the Tenure of the service whereby the lands & tenements beene holden, and in this sense it is said in the Writ of right, Quae clamat tenere de te per liberum seruitium, &c. And in this signification hee is called a Tenant or holder, because all the lands & tenements in England in the hands of subjects, are holden mediately or immediately of the King. For in the law of England we have not properly, Allodium, That is, any Subjects Land that is not holden, unlesse you will take Allodium, for Ex. solido, as it is often taken in the Booke of Domesday: and tenents in Fee simple are there called Alodarii or Aloarii, And he is called a Tenant, because hee holdeth of some superior Lord by some service. And therefore the King in this sense cannot be said to be a Tenant, because hee hath no superior but God Almightie; Praedium domini: regis est directum dominium cuius nullus Author est nisi Deus. And as Bracton saith, Omnis quidem sub eo, & ipse sub nullo, nisi tantum sub Deo. The posessions of the King are called Sacra patrimonia. & Dominica Coronae Regis. But though a Subject hath not properly Directum, yet hath hee utile Dominium. Of these Tenants our Author, speaketh in his second Booke. Also Tenere signifieth performance, as in the Writ of Covenant, Quod teneat conventionem, that is, That he hold or performe his Covenant. And likewise it signifieth to be bound, as it is said in everie common Obligation, teneri & firmiter obligari. Lastly, It signifieth to deeme or judge, as in 38. Ed. 3c. 4. It shall be holden for none (that is) judged or deemed for none, and so wee commonly say, it is holden in our Bookes. And these severall significations doe properly belong to our Tenant in Fee simple. For he hath the estate of the Land, he holdeth the land of some superiour Lord, and is to performe the services due, and thereunto he is bounden by doome and judgement of Law. Of the severall estates of Land, our Author treateth in his first booke, and beginneth with Fee simple, because all other estates and interests are derived out of the same.
Fee commeth of the French Fief, (i)praedium beneficiarium, and legally signifieth Inheritance, as our Author himselfe hereafter expoundeth it. And Simple is added, for that it is descendible to his heires generally, that is, simply, without restraint to the heires of his body, or the like. Feodum est quod quis tenet ex quacunque causa, sive sit tenementum, sive redditus, &c. In Domesday it is called Feudum. (a) Of Fee simple, it is commonly holden, that there be three kinds, viz. fee simple absolute, fee simple conditionall, and fee simple qualified, or a base fee. But the more genuine and apt division, were to divide fee, that is, Inheritance, into three parts, viz. Simple as absolute, Conditionall, and qualified or base. For this word (Simple) properly excludeth both conditions and limitations, that defeat or abridge the fee.* Hereby appeareth, that fee in our legall understanding signifieth, that the land belongs to us & our heires, in respect whereof the owner is said to be seised in fee, and in this sense the King is said to be seised in fee. (b) It is also taken, as it is holden of another by service, and that belongeth onely to the Subject; Item dicitur feodum alio modo eius qui alium feoffat, & qod quis tenet ab alio, ut si sit qui dicat, talis tenet de me tot feoda per servitium militare. And Fleta saith, Poterit unus tenere in feodo quoad servitia, sicut dominus capitalis, & non in Dominico, alius in feodo & dominico, & non in servitio, sicut libere tenens alicuius (c) And therefore if a stranger claims a Seigniorie, and disteine and avow for the service, the Tenant may plead, That the Tenancie is extra feodum, &c. of him (that is) out of the Seigniorie, or not holden of him that claimeth it, but he cannot plead Hors de fon fee, unlesse he take the tenancie, that is, the state of the Land upon him. Of fee in the first sense our Author treateth in this first Booke; and as is taken in the second sense, in his second booke: and of the third you shall read in our Author, Sect. 13, 643, 644, 645. and plentifully in our books quoted in the margent.
“Lands or Tenements.”
Here is to be observed, That a man may have a fee simple in three kinds of hereditaments, viz. Reall, Personall, and Mixt: Reall, as Lands and Tenements, whereof our Author here speaketh: Personall, King Edward the first in the thirteenth yeare of his Reigne,Concessit Edmundo fratri suo charissimo, quod ipse & haeredes sui habeant ad requisitionem suam in Cancellaria nostra & haeredum nostrorum Justi-|-ciarios ad placita forestarum quas idem Fraternosterhabet ex dono domini Regis Henrici parris nostri secundum assiss. forestae tenend; &c. In this case the grantee and his heires had a personall inheritance in making of a request to have Letters patents of Commission to have Justices assigned to him to heare and determine of the pleas of the forrests, and concerneth neither lands or tenements. And so it is if an Annuity be granted to a man and his heires, It is a fee simple personall, & sic de similibus. And lastly hereditaments mixt both of the realty and personality. As the Abbot of Whitbie in the County of Yorke having a forrest of the gift of William of Percie founder of that Abby, and by the Charters of King John and of other his progenitors, King Henry the third did grantAbbati & conventui de Whitbye quod ipsi & eorum successores in perpetuum habeant viridarios suos proprios de libertate sua de Whitb. eligend’ de cetero in pleno com’ Eborum prout moris est ad responsiones & presentationes, faciend’ de transgressionibus quas amodo fieri continget de venatione infra metas forestae suae de Whitbye quam habent ex donatione Willi. de Percey, & Alani de Percey, filii ejus, & redditione & concessione domini Johan. quondam regis Angliae patris nostri & confirmatione nostra coram justiciariis nostris itinerantibus ad placita forestae in partibus illis & non alibi sicut viridarii forestae nostrae hujusmodi responsiones&presentationes facere debent, & consueverunt. Et si contingat aliquos forinsecos qui non sunt de libertate predictorum Abbatis & conventus transgressionem facere de venatione infra metas forestae predictae quos predicti viridarii attachiare non possunt: Volumus & concedimus pro nobis & heredibus nostris quod hujusmodi transgressores per Justicarios forestae nostrae ultra Trentam attachientur ad praesentationem viridariorum praedict. ad respondendum, inde coram justiciariis nostris itinerantibus ad placita forestae nostrae in partibus illis cum ibid. ad placitandum venerint prout secundum assisam & consuetudinem forestae fuerint faciend. Which Charter was pleaded upon the Claime made by the Abbot of Whitbye before Willoughby, Hungerford, and Hanbury, Justices in Eire in the forrest of Pickering, which Eire began Anno 8.Edw.3. And these before them were allowed. And when the King createth an Earle of such a county or other place, To hold that dignity to him and his heires, This Dignity is personall, and also concerneth lands and tenements. But of this matter more shall be said in the next Chapter, Sect. 14. & 15.
“Called in Latine, feum sinplex, for Feodum is the same that Inheritance is,”
Here Littleton himselfe teacheth the signification of feodum; according to that which hath bin said, which onely is to be applied to fee simple pure and absolute. And this and all his other interpretations of words and Etymologies throughout all his three bookes (wherein the studious Reader will observe many) are perspicuous, and ever per notiora & nunquam ignotum per ignotius, and are most necessary, for ignoratis terminis ignoratur & ars. ,
“Simplex is as much to say, as lawfull or pure.”
Hereof hee treateth onely in this place. And Litt. saith well, that Simplex idem est quod purum. Simplex enim dicitur quia sine plicis; & purum dicitur, quod est merum & solum sine additione. Simplex donatio & pura est ubi nulla addita est conditio siue modus, simplex enim datur quod nullo additamento datur. ,
“a lawfull or pure Inheritance.”
And therefore it is well said,quod donationum alia simplex & pura, quae nullo jure civili vel naturali cogente, nullo precedente metu vel interveniente ex mera gratuitaque libertate donantis procedit, & ubi nullo casu velit donator ad se reverti quod dedit, alia sub modo conditione vel ob causam, in quibus casibus non proprie sit donatio cum donator, id ad se reverti velit, sed quedam potius feodalis dimissio, alia absoluta & larga, alia stricta & coarctata sicut certis heredibus quibusdam a successoribus exclusis, &c. And therefore seeing fee simple is hereditaslegitima vel pura, it plainly confirmeth that the division of fee is by his authority rather to be divided as is aforesaid than fee simple. And he saith well in the disjunctive legitima vel pura, for every fee simple is not Legitimum. For a disseisor, abator, intruder, usurper &c. have a fee simple, but it is not a lawfull fee. So as every man that hath a fee simple, hath it either by right or by wrong. If by right, then he hath it either by purchase or discent. If by wrong, then either by disseisin, intrusion, abatement, usurpation, &c. In this Chapter he treateth onely of a lawfull fee simple, and divideth the same as is aforesaid.
“For if a man would purchase.”
Persons capable of purchase who have ability to grant.Persons capable of purchase are of two sorts, persons naturall created of God, as I. S. I. N. &c. and persons incorporate or politique created by the policy of man, (and therefore they are called bodies politique) and these be of two sorts, viz, either sole, or aggregate of many: againe aggregate of many, either of all persons capable, or of one person capable, and the rest incapable or dead in law, as in the Chapter of Discontinuance, Sect. 57. shall be shewed. Some men have capacitie to purchase, but not abilitie to hold. Some capacity to purchase and abilitie to hold, or not to hold, at the election of them or others. Some capacity to take and to hold. Some neither capacity to take nor to hold. And some specially disabled to take some particular thing.
If an alien Christian or infidell purchase houses, lands, tenements, or hereditaments to him | and his heires, albeit he can have no heires, yet he is of capacitie to take a fee simple but not to hold. For upon an office found, the king shall have it by his prerogative, of whomsoever the land is holden. And so it is if the alien doth purchase land and die, the law doth cast the freehold and inheritance upon the King. If an alien purchase any estate of freehold in houses, lands, tenements, or hereditaments, the King upon office found shall have them. If an alien be made Denizen and purchase lands and die without issue, the lord of the fee shall have the escheat, and not the King. But as to a lease for yeares, there is a diversitie betweene a lease for yeares of a house for the habitation of a marchant stranger being an alien, whose king is in league with ours, and a lease for yeares of lands, meadowes, pastures, woods, and the like. For if he take a lease for yeares of lands, meadowes, &c. upon office found, the king shall have it. But of a house for habitation he may take a lease for yeares as incident to Commercety, for without habitationheecannot merchandize or trade. But if he depart, or relinquish the realme, the king shall have the lease. So it is if he die possessed thereof, neither his Executors or administrators, shall have it, but the king: for he had it only for habitation as necessary to his trade or traffique, and not for the benefit of his Executor or adminstrator. But if the alien be no merchant, then the king shall have the lease for yeares, albeit it were for his habitatation, and so it is if he be an alien enemie. And all this was so resolved by the Judges assembled together for that purpose in the case of Sir James Croft, Pasch. 29. of the reigne of Queene Elizabeth. Also if a man commit felony, and after purchase lands and after is attainted, he had capacitie to purchase but not to hold it, for in that case the Lord of the fee shall have the Escheat. And if a man be attainted of felony, yet he hath capacity to purchase to him and to his heires, albeit he can have no heire, but he cannot hold it, for in that case the king shall have it by his prerogative, and not the Lord of the fee, for a man attainted hath no capacity to purchase (being a man civiliter mortuus ) but onely for the benefit of the king, no more than the alienee hath. If any sole Corporation or aggregate of many, either Ecclesiasticall or temporall (for the words of the statute be Si quis religiosus vel alius ) purchase Lands or Tenements in fee, they have capacity to take but not to retaine (unlesse they have a sufficient Licence in that behalfe) for within the yeare after the alienation, the next Lord of the fee may enter, and if he doe not, then the next immediate lord from time to time to have half a yeare, and for default of all the mesne Lords, then the king to have the land so aliened for ever, which is to be understood of such inheritance as may be holden. But of such inheritances as are not holden, as Villeins, rents charges, commons, and the like, the king shall have them presently by a favourable interpretation of the statute. An Annuity granted to them is not mortmaine, because it chargeth the person onely. Some have said that it is called mortmaine Manus mortua, quia possessio corum est immortalis, manus propossessione, & mortua pro immortali, and the rather for that by the lawes and statutes of the realme, all Ecclesiastiall persons are restrained to alien. Others say it is called manus mortua per Antiphrasin, because bodies politique and corporate never die. Others say that it is called Mortmaine by resemblance to the holding of a mans hand that is ready to die, for that he then holdeth he letteth not goe till he be dead. These and such others are framed out of wit and invention, but the true cause of the name, and the meaning thereof, was taken from the effects, as it is expressed in the statute it selfe,per quod quae servitia ex hujusmodi feodis debentur, & quae ad defensionem regni ab initio provisa fuerunt indebite subtrahuntur & capitales domini eschaetas suas amittunt, so as the lands were said to come to dead hands as to the Lords, for that by alienation in Mortmaine, they lost wholly their escheats, and in effect their knights services for the defence of the Realme, Wards, Marriages, Reliefes, and the like, and therefore was called a dead hand, for that a deadhandyeeldeth no service.
I passe over Villeins or Bondmen, who have power to purchase lands, but not to reteyne them against their Lords, because you shall reade at large of them in their proper place in the Chapter of Villenage.
An infant or minor (whome we call any that is under the age of 21 yeares) have without consent of any other, capacity to purchase, for it is intended for his benefit, and at his full age he may either agree thereunto, and perfect it, or without any cause to be alleged, Waive or disagree to the purchase, and so may his heires after him, if he agree not thereunto after his full age.
A man of non sane memory may without the consent of any other, purchase lands, but hee himselfe cannot waive it, but if he die in his madnesse, or after his memory recovered without agreement thereunto, his heire may Waive and disagree to the state, without any cause shewed, and so of an Ideot. But if the man of non sane memory, recover his memory, and agree unto it, it is unavoydable.
If an Abbot purchase lands to him and his successors without the consent of his Covent, he himselfe cannot Waive it, but his successor may upon just cause shewed, as if a greater rent were reserved thereupon than the value of the land, or the like, but he cannot Waive it unlesse it be upon just cause, et sic de similibus praelatus Ecclesiae suae conditioné meliorare potest, deteriorare nequit. And in another place he saith,Est enim Ecclesia ejusdem conditionis, quae fungitur vice minoris.
| But no Simile holds in everie thing, according to the ancient saying, Nullum simile quatuor pedibus currit. (a) An hermaphrodite may purchase according to that Sex which prevaileth. A feme covert cannot take any thing of the gift of her husband, but is of capacitie to purchase of others without the consent of her husband. And of this opinion was Littleton in our Books, and in this Booke Sect 677. but her husband may disagree thereunto, and divest the whole estate, but if he neither agree nor disagree, the purchase is good; but after his death, albeit her husband agreed thereunto, yet shee may without any cause to be alleaged waive the same, and so may her heires also, if after the decease of her husband she her selfe agreed not thereunto.
(b) A wife (Uxor) is a good name of Purchase, without a Christian name, and so it is, if a Christian name be added and mistaken, as Em for Emelya, &c. for utile per inutile non vitiatur. But the Queene, the Consort of the King of England, is an exempt person from the King by the Common Law, and is of abilitie, and capacitie to purchase and grant without the King. Of which see more at large, Sect. 206.
(c) The Parishioners or Inhabitants, or probi homines of Dale, or the Church wardens, are not capable to purchase lands, but goods they are, unlesse it were in ancient time when such grants were allowed.
(d) An ancient grant by the Lord to the Commoners in such a waste, that a way leading to their Common should not be streightened, was good, but otherwise it is of such a grant at this day. (e) And so in ancient time a grant made to a Lord, & hominibus suis tam liberis quam nativis, or the like, was good, but they are not of capacitie to purchase by such a name at this day. But yet at this day if the King grant to a man to have the goods and cattels de hominibus suis, or de tenentibus suis, or de residentibus, infra feodum, &c. it is good, for there they are not named as purchasers or takers, but for another mans benefit, who hath capacitie to purchase or take. (f ) And regularly it is requisite that the Purchaser be named by the name of Baptisme and his surname, and that speciall heed bee taken to the name of Baptisme, for that a man cannot have two names of Baptisme as he may have divers surnames. (g) And it is not safe in writs, pleadings, grants, &c. to translate surnames into Latine. As if the surname of one be Fitzwilliam, or Williamson, if he translate him to filius Willi. if in truth his father had any other Christian name than William, the Writ, &c. shall abate, for Fitzwilliam or Williamson is his surname whatsoever Christian name his father had, therefore the Lawyer never translates surnames. And yet in some cases, though the name of Baptisme be mistaken, (as in the case before put of the wife) the grant is good.
So it is if lands be given to Robert Earle of Pembroke where his name is Henry, to George Bishop of Norwich, where his name is John, and so of an Abbot, &c. for in these and the like cases there can be but one of that Dignitie or name. And therefore such a grant is good, albeit the name of Baptisme be mistaken. If by Licence lands be given to the Deane and Chapter of the holy and individed Trinitie of Norwich, this is good, although the Deane bee not named by his proper name, if there were a Deane at the time of the grant, but in pleading he must shew his proper name. And so on the other side, If the Deane and Chapter make a Lease without naming the Deane by his proper name, the Lease is good, if there were a Deane at the time of the Lease, but in pleading the proper name of the Deane must be shewed, and so to the Booke of 18.Edw.4. to be intended for the same Judges in 13.Edw.4. held the grant good to a Mayor, Alderman, and Commonaltie, albeit the Mayor was not named by his proper name, but in pleading it must be shewed, as it is there also holden. If a man be baptized by the name of Thomas, and after at his Confirmation by the Bishop he is named John, he may purchase by the name of his Confirmation. And this was the case of Sir Francis Gawdye, late chiefe Justice of the Court of Common Pleas, whose name of Baptisme was Thomas, and his name of Confirmation Francis, and that name of Francis by the advice of all the Judges in Anno 36.Hen.8. hee did beare, and after used in all his purchases and grants. (h) And this doth agree with our ancient Bookes, where it is holden that a man may have divers names at divers times, but not divers Christian names. And the Court said, that it may be that a woman was baptized by the name of Anable and fortie yeares after she was confirmed by the name of Douce, and then her name was changed, and after she was to be named Douce, and that all purchases, &c. made by her by the name of Baptisme before her Confirmation remaine good, a matter not much in use, nor requisite to be put in ure, but yet necessarie to be knowne. (i) But purchases are good in many cases by a knowne name, or by a certaine description of the person without either surname, or name of Baptisme, as Uxori I. S. as hath beene said, or primogenito filio, or secundo genito filio, &c. or filio natu minimo I.S. or seniori puero, or omnibus filiis or filiabus I.S. or omnibus liberis seu exitibus of I.S. or to the right heires of I.S.
(k) But if a man doe infranchise a Villeine, cum tota sequela sua, that is not sufficient to infranchise his children borne before, for the incertaintie of the word sequela. (l) But regularly in Writs, the Demandant or Tenant is to be named by his Christian name and Surname, unlesse it be in cases of some Corporations or Bodies politique.
| (a) A bastard having gotten a name by reputation may purchase by his reputed or knowne name to him and his heires, although he can have no heire but of his body. A man makes a lease to B. for life, remainder to the eldest issue male of B. & the heires males of his body. B. hath issue a bastard son, he shall not take the remainder, because in Law he is not his issue, for qui ex damnato coitu nascuntur inter liberos non computentur. And as Littleton saith, A bastard is quasi nullius filius & can have no name of reputation as soone as he is borne. (b) So it is if a man make a lease for life to B. the remainder to the eldest issue male of B. to bee begotten of the body of Jane S. whether the same issue be legitimate or illegitimate. B. hath issue a bastard on the body of Jane S. this son or issue shall not take the remainder, for (as it hath beene said) by the name of issue, if there had beene no other words he could not take, and (as it hath beene also said) a bastard cannot take, but after hee hath gained a name by reputation, that hee is the sonne of B. &c. (c) And therefore he can take no remainder limited before he be borne, but after he be borne, and that he hath gained by time a reputation to be knowne by the same of a son, then a remainder limited to him by the name of the sonne of his reputed father is good. But if he cannot take the remainder by the name of issue at the time when hee is borne hee shall never take it. And so it seemeth, and for the same cause, if after the birth of the issue, B. had married Jane S. so as hee became Bastard eigne, and had a possibilitie to inherit, yet he shall not take the remainder.
Persons deformed having humane shape, ideots, mad men, lepers, deafe, dumb, and blinde, minors, and all other reasonable creatures have power to purchase and retaine lands or tenements. (d) But the Common Law doth disable some men to take any estate in some particular things: As if an office either of the grant of the King or Subject which concernes the administration, proceeding, or execution of Justice, or the Kings revenue, or the Commonwealth, or the interest, benefit, or safetie of the subject, or the like; if these, or any of them be granted to a man that is unexpert, and hath no skill and science to exercise or execute the same, the grant is meerely void, and the partie disabled by Law, and incapable to take the same, pro commodo regis & populi, for only men of skill, knowledge, & abilitie to exercise the same are capable of the same to serve the King & his people. (e) An infant or minor is not capable of an office of Stewardship of the Court of a Mannor either in possession or reversion. (f ) No man though never so skilfull and expert, is capable of a judiciall office in reversion, but must expect untill it fall in possession. And see Sect. 378. where bargaining or giving of money, or any manner of reward, &c. for offices there mentioned, shall make such a purchaser incapable thereof, which is worthy to bee knowne, but more worthy to be put in due execution.
Some are capable of certaine things for some speciall purpose, but not to use or exercise such things themselves. As the King is capable of an office, not to use, but to grant, &c.
A monster borne within lawfull matrimony, that hath not humane shape cannot purchase much lesse retaine any thing. (g) The same Law is de professis & mortuis seculo, for they are civiliter mortui, whereof you shall read at large in his proper place, Sect. 200.
In Latine Perquisitum of the Verbe Perquirere, Littleton describeth it in the end of this Chapter in this manner, Item, purchase est appel le possession de trés outenèments que home ad per son fait, ou per son agreement, a quel possession il neavient per title de discent de nul de ses ancesters, ou de ses cosens mes person fait dem. So as I take it, a purchase is to be taken, when one commeth to lands by conveyance or title, and that disseisins, abatements, intrusions, usurpations, and such like estates gained by wrong, are not said in Law purchases, but oppressions and injuries.
Note that purchasers of lands, tenements, leases, and hereditaments for good and valuable consideration, shall avoyd all former fraudulent and covinous conveyances, estates, grants, charges & limitations of uses, of or out of the same, (h) by a Statute made since Littleton wrote, whereof you may plainly and plentifully read in my Reports, to which I will adde this case, I. C. had a Lease of certaine lands for 60 yeares if hee lived so long, and forged a Lease for 90 yeares absolutely, and he by Indenture reciting the forged Lease for valuable consideration bargained, and sold the forged Lease: and all his interest in the land to R. G. It seemed to me that R. G. was no purchaser within the Statute of 27 Eliz. for he contracted not for the true & lawfull interest, for that was not knowne to him, for then perhaps hee would not have dealt for it, and the visible and knowne tearme was forged, and although by generall words the true interest passed notwithstanding he gave no valuable consideration nor contracted for it. And of this opinion were all the Judges in Serjeants Inne in Fleetstreet.
(i) In ancient time when a man made a fraudulent feoffment it was said, quod posuit terram illam in brigam, where brigam doth signifie wrangle, contention, or intricacie, for fraud is the mother of them all. (k) And on the other side, purchases, estates, and contracts may be avoyded since Littleton wrote by certaine Acts of Parliament against Usurie above ten in the hundred, in such manner and forme as by those Acts is provided. Which Statutes are well expounded in my books of Reports which may be read there. To them that lend money my caveat is, that | neither directly nor indirectly, by art, or cunning invention, they take above ten in the hundred, for they that seeke by fleight to creepe out of these Statutes, will deceive themselves, and repent in the end.
Lands and other things to be purchased.Littleton here and in many other places putteth Lands but for an example, for his rule extendeth to Seigniories, Rents, Advowsons, Commons, Estovers, and other hereditaments of what kinde or nature soever.
Terra, Land in the legall signification comprehendeth any ground, soile or earth whatsoever, as Meadowes, Pastures, Woods, Moores, Waters, Marshes, Furses and Heath, Terra est nomen generalissimum, & comprehendit omnes species terrae, but properly Terra dicitur à terendo, quia vomere teritur, andanciently it was written with a singler, and in that sense it includeth whatsoever may bee plowed, and is all one with arvum ab arando. It legally includeth also all Castles, Houses, and other buildings: for Castles, Houses, &c. consist upon two things, viz. land or ground, as the foundation and structure thereupon, so as passing the land or ground, the structure or building thereupon passeth therewith. Land is anciently called Fleth, but land builded is more worthy than other land, because it is for the habitation of man, and in that repeat hath the precedencie to be demanded in the first place in a Praecipe, ashereafter shall be said. And therefore this element of the Earth is preferred before the other elements; first and principally, because it is for the habitation and resting place of man, for man cannot rest in any of the other elements, neither in the Water, Aire or fire. For as the Heavens are the habitation of Almightie God, so the Earth hath he appointed as the Suburbs of Heaven to be the habitation of man; Coelum coeli Domino, terram autem dedit filiis hominum. All the whole Heavens are the Lords, the earth hath he given to the children of men. Besides, everie thing as it serveth more immediately or more meerely for the food and use of man (as shall be said hereafter) hath the precedent dignitie before any other. And this doth the earth, for out of the earthcommeth mans food, and bread that strengthens mans heart, Confirmat cor hominis, and Wine that gladdeth the heart of man, and Oyle that makes him a cheereful countenance. And therefore Terra olim Ops mater dicta est quia omnia hac opus habeant ad vivendum. And the Divine agreeth herewith, for he saith,Patriam tibi & nutricem, & matrem, & mensam, & domum posuit terram Deus, sed & sepulchrum tibi hanc eandem dedit. Also the waters that yeeld fish for the food and sustenance of man are not by that name demandableina Praecipe, but the land whereupon the water floweth or standeth is demandable (as for example) viginti acr’ ter’ aqua coopert’, and besides the earth doth furnish man with many other necessaries for his use, as it is replenished with hidden treasures, namely with Gold, Silver, Brasse, Iron, Tinne, Lead, and other metals, and also with great varietie of precious stones, and many other things for profit, ornament and pleasure. And lastly, the earth hath in Law a great extent upwards, not only of water as hath beene said, but of aire and all other things even up to Heaven, for cujus est solum ejus est usque ad coelum, as it is holden, 14.Hen.8.fo.12. 22.Hen.6.59. 10.Edw.4.14. Regist. origin and in other bookes.
And albeit land, whereof our Author here speaketh, be the most firme and fixed inheritance, and therefore it is called solum, quid est solidum, and fee simple the most highest and absolute estate that a man can have, yet may the same at severall times be moveable; sometime in one person, and alternis vicibus in another, nay sometime in one place, and sometime in another. As for example, if there be 80 acres of meadow which have been used time out of minde of man, to be divided betweene certain persons, and that a certaine number of acres appertaine to everie of these persons, as for example, to A. 13. acres to be yearely assigned and lotted out, so as sometime the 13. acres lye in one place, and sometime in another, and so of the rest. A. hath a moveble fee simple in 13. acres, and may be parcell of his Mannor, albeit they have no certaine place, but yearly set out in severall places, so as the number onely is certaine, and the particular acres or place wherein they lye after the yeare incertaine. And so it was adjuged in the Kings Bench upon an especiall verdict.
If a partition be made betweene two Coparceners of one and the selfe-same land, that the one shall have the land from Easter untill Lammas to her and to her heires, and the other shall have it from Lammas till Easter to her and her heires, or the one shall have it the first yeare, and the other the second yeare alternis vicibus, &c. there it is one selfe-same land wherein two persons have severall inheritances at severall times. So it is if two Coparceners have two severall Mannors by descent, & they make partition, that the one shall have the one Mannor for a yeare, and the other the other Mannor for the same yeare, and after that yeare, then he that had the one Mannor shall have the other, & sic alternis vicibus for ever, and albeit the Mannors be severeall, yet are they certaine, and therefore stronger than Bridgewaters case, so as this doth make a Division of states of inheritances of lands, viz. Certaine or unmoveable whereof Littleton here speaketh, and incertaine and moveable, whereof these three cases for examples have beene put. Wherein it is to bee noted, that the possession is not onely severall, but the inheritance also.
(k) The same Law if a man in that case grant omnes boscos suos crescentes, &c. yet the land itselfe shall passe, as it hath been adjudged.Frassetum signifieth a wood, or ground that is woodie. (l) If a man hath a wood of Elder trees containing 20. acres, and granteth to another 20. acras alneti (with an N not a V) the wood of Elders, and the soile thereof shall passe, but no other kinde of woods shall passe by that name. Alnetum est ubi alni arbores crescunt. , And Sullings are taken for Elders. (m)Salicetum doth signifie a wood of wilowes, ubi salices crescunt, these trees in our Books are called Sawces.Selda, is a wood of Sallowes, Willowes, or Withies. A brackie ground is called Filecetum, ubi filices crescunt. A wood of Ashes is called Fraxinetum, ubi fraxini crescunt, and passeth by that name, and Lupulicetum where hops grow, and Arundinetum, where reeds grow. Some say that Dene or Denne, whereof Dena commeth, is properly a valley or dale. Denasylvae, and the like. (n)Drofden, or Drufden, or Druden, signifieth a thicket of wood in a valley, for Druf or Dru, signifieth a thicket of wood, and is often mentioned in Domesday. And sometimes Dena or Denna signifieth, as Villa and Denne, a towne.
(o)Cope signifieth a hill, & so doth Lawe, as Stanlawe is Saxeus collis. (p)Howe also signifieth a hill. And Hope combe, and Stow are valleyes, & so doth Clough. And Dunham or Duna, signifieth a hill or higher ground, and therefore commonly the townes that end in Dun, have hills or higher grounds in them, which we call Downes. It commeth of the old French word Dun.
(q) In our Latine a wood is called Boscus, Grava signifieth a little wood, in old Deeds, and Hirst or Hurst a wood and so doth Holt and Shawe. Twaite signifieth a wood grubbed up, and turned to arable. Stethe or Stede, betokeneth properly a banke of a River, and many times a place, as Stowe doth, and Wic, a place upon the Sea shore, or upon a River. Lea or Ley signifieth pasture.
(r) If a man doth grant all his pastures, Pasturas, the land it selfe imployed to the feeding of beasts doth passe, and also such pastures or feedings, as he hath in another mans soile. Leswes or Lesues is a Saxon word, and signifieth pastures. (s) Between Pastura and Pascuum, the legall difference is that Pastura in one signification containeth the ground it selfe called pasture, and by that name is to be demanded. Pascuum feeding, is wheresoever cattell are fed, of what nature soever the gound is, and cannot be demanded in a Praecipe by that name.
(t) If a man grant omnia prata sus, all his meadowes; the land it selfe of that kinde passe, & dicitur pratum quasi paratum, because it groweth sponte without maintenance. (u) A man grant omnes brueras suas, the soile where heath doth grow passeth, and may be demanded by that name | in a praecipe, it is derived from bruyer a French word for heath, and it is called Ros in the British tongue.
Roncaria or Rancaria signifieth land full of brambles & briers, and is derived of Roucier the French word which signifieth the same, & as much as senticetum. (a) By the grant of omnes Juncarias or joncarias, the soile were rushes do grow, doth passe, for Lonc in French is a Rush, whereof Joncaria commeth. (b) A man grant omnes Ruscarias suas, the soile where ruscii. kneholme, or butchers pricks or broome doe grow, shall passe, and so in the verse in the Register it is called, but in F.N.B. fol. 2. in the verse, Pischaria is put in stead of Ruscaria. And Jampna commeth of lonc and nower, a waterish place, and is all one in effect with Joncaria. Hee that granteth omnes mariscos suos, all his fennes or marish grounds doe passe. Mariscus is derived of the French word mares or marets; the Latine word for it, is palus or locus paludosus. Mora is derived of the English word Moore and signifieth a more barren and unprofitable ground than marshes, dangerous for any cattell to goe there, in respect of myrie and morish soyle, neither serves it for getting of turves there: (c) you shall read in Record, that such a man perquisuit trescent. acr. maretti, &c. this word maretrum is derived of mare the sea, and tego, and properly signifieth a moorish and gravelly ground, which the sea doth cover and overflow at a full sea, and lyeth betweene the high water marke, and the low water marke, infra fluxum & refluxum maris. By grant of these particular kindes, the land of these particular kindes onely doe passe, but as hath beene said by the grant of land in generall, all these particular kindes, and some others doe passe. Non mihi si centum linguae sint oraque centum, Omnia terrarum percurrere nomina possem. And therefore let us turne our eye to generall words, which doe include lands of severall sorts and qualities. (d) By the name of an Honor, which a subject may have, divers mannors and lands may passe. So by the name of an Isle, Insula, many mannors, lands and tenements may passe.
Holme or hulmus signifieth an Isle or fenny ground. * A Commote is a great Seigniory, & may include one or divers mannors; (e) By the name of a castle, one or more mannors may be conveyed, & è converso, by the name of a mannor, &c., a castle may passe. In Domesday I read Comes Alanus habet in suo castellatu 200. maneria, &c. praeter castellarium habet 43. maneria, and in that booke a castle is called castellum, and castrum, and domus defensibilis, and mansus muralis. (f ) But note by the way, that no subject can build a castle or house of strength embattelled, &c. or other fortress defensible, called in Law by the names aforesaid, and sometimes domus kernellatae, or Carnellatae, imbattellatae, tenellatae, machecollatae, mese, carnelet, &c without the licence of the King, for the danger which might ensue, if everie man at his pleasure might do it. And they be called imbattlements, because they are defences against battles in assaults. Tenellare or tanellare, is to make holes or loopes in walls to shoot out against the Assailants. Machecollare or machecoulare, is to make a warlik device over a gate or other passage like to a grate through which scalding water, or ponderous, or offensive things may be cast upon the assaylants. But to returne to the matter from whence upon this occasion we are fallen.
By the name of a towne Villa, a mannor may passe. In Domesday, Alodium (in a large sense) signifieth a free mannor and Alodiarii or Alodarii, Lords of the same, and Lannemanni there signifie lords of a mannor, having socam & sacam de tenentibus & hominibus suis. (g) And by the name of a Mannor, divers townes may passe, quod olim dicebatur fundus nunc manerium dicitur, by the name of a ferme or fearme firma, houses, lands, and tenements may passe, and firma is derived of the Saxon word feormian, to feed or releeve, for in ancient time they reserved upon their Leases, cattell and other victuall & provision for their sustenance. (h) Note a fearme in the North parts is called a Tacke, in Lancashire a Fermeholt, in Essex a Wike. But the word fearme, is the generall word, and anciently fundus signified a fearme and sometime land. (i) Lands making a Knights fee, shall passe by the grant of a Knights fee de uno feodo militis.
(k)Unum solinum or solinus terrae in Domesday book containeth two plow Lands and somewhat lesse than an halfe, for there it is said, Septem Solini, or Solina terrae sunt 17. carucat’. Una hida seu carucata terrae which is all one as a plow land, viz. as much as a plough can till, fullery also signifieth a plowland. Una virgata terrae, a yard land, the Saxons called it Girdland, and now the G. is turned to a Y. as in some Countries 10. in some 20. in some 24. in some 30. &c. (l)Una bovata terrae, an oxgange, or an oxgate of land, is as much as an oxe can till. (m) But carucata terrae and bovata terrae, are words compound, and may containe meadow, pasture, and wood, necessarie for such tillage. Jugum terrae in Domesday, containeth halfe a plow-land. And by all these names in the reign of Richard the first lands were usually demanded and long after.
(n) By the name of a Grange, Grangia a house or edifice, not onely where corne is stored up like as in barnes, but necessarie places for husbandrie also, as stables for hay and horses, and stables and styes for other cattell, and a curtilage, and the close wherein it standeth shall passe, and it is a French word, and signifieth the same, as we take it.
(o)Stagnum, in English a poole, doth consist of water and land, and therefore by the name of | Stagnum or a poole, the water and land shall passe also. (a) In the same manner Gurges, a deepe pit of water, a gors or gulfe consisteth of water and land, and therefore by the grant thereof by that name, the soile doth passe, and a praecipe doth lye thereof, & shall lay his esplées in taking of fishes, as Breames and Roches.Domesday. In Domesday it is called guort, gort & gors plurally, as for example, de 3. gorz. mille anguillae.
(b) So it is of a Forest, Parke, Chase, vivarye, and Warren in a mans owne ground, by the grant of any of them, not onely the privilege, but the land it selfe passes, for they are compound. In the book of Domesday, that is called lewad and leuga, and lewed, and lewe, which in Latine is called leuca.
(c)Stadium, or ferlingus sive ferligum, or quarentena terrae, is a furlong of Land, and is as much as to say, a furrow long, which in ancient time was the eighth part of a mile, and land will passe by that name. And some hold, that by that name land may be demanded. And de ferlingis & quarentenis, you shall read divers times in the booke of Domesday,Domesday. and there you shall read In insula Rex habet unum frustrum terrae unde exeunt sex vomeres.Nota frustrum signifieth a parcell, (d)Warectum or wareccum, or varectum, doth signifie fallow; Terra jacet ad Warectum, the land lyeth fallow: but in truth the word is vervactum, quasi vere novo victum seu subactum, terra novalis seu requieta, quia alternis annis requiescat. (e)Tam culta novalia. (f ) By the grant of a messuage, or house mesuagium, the orchard, garden and curtilage doe passe, and so an acre or more may passe by the name of a house. It is derived of the French word mese. (g) In Domesday, a house in a City or Burrough, is called haga; other houses are called there mansiones, mansurae, & domus, (h) and in an ancient plea concerning Feuersham in Kent, hawes are interpreted to signifie mansiones. In Normans French it is called mesiul or mesuil: Bye signifieth a dwelling, bye an habitation, and byan to dwell.
It is to be noted, that in Domesday there be often named bordarii seu borduanni, cosces, coscet, cotucami, cotarii, are all in effect bores or husbandmen, or cotagers, saving that bordarii, which commeth of the French word borde for a cottage, signifieth their bores holding a little house with some land of husbandry bigger than a cottage, and coterelli are meere cottagers, qui cotagia & curtilagia tenent.
Villani in Domesday (often named) are not taken there for bondmen, but had their name de villis, because they had fermes, and there did worke of husbandry for the Lord, and they were ever named before bordarii, &c. and such as are bondmen are called there servi.
Domesday.(i)Coleberti often also named in Domesday signifieth Tenants in free socage by free rent, and so it is expounded of record. Radmans and Radchemisters, (Rad, or rede, signifieth firme and stable) there also often named, these are liberi tenentes qui arabant & herciebant ad curiam domini, seu falcabant, aut metebant, because their estates are firme and stable, and they are many times called Sochemans and sokemanni because of their plough service.
Dreuchs signifieth free tenants of a Mannor there also named. Taini or thaini mediocres were free holders, and sometime called milites regis, and their land called Tainland, and there it is said, haec terra T.R.E. fuit Tainland, sed postea conversa in Reveland. (k) But thainus regis is taken for a Baron, for it is said in an ancient Author, Thainus regis proximus comiti est, & ibidem mediocris thainus, & alibi Baro sive thainus.Berquarium or Bercaria commeth of Berc, an old Saxon word, used at this day for barkes or rindes of trees, and signifieth a Tanhouse, or a heath house, where barkes or rindes of trees are laid to tan withall,Domesday. and Berquarij are mentioned in Domesday. It signifieth also, and more legally a sheepe coat, of the french word Bergerie.
(l) By Vaccaria in Law is signified a Dairy house, derived of vacca the cow. In Latine it is Lactarium or Lactitium, and vaccarius is mentioned in Domesday. And Fleta maketh also mention of porcaria a swinestye.
The content of an Acre is knowne, the name is common to the English, German, and French. In legall Latine it is called Acra, which the Latinists call iugerum. In Domesday it is called Arpen prati, sylvae, &c. 10. R.I. inter fines, Acra in Cornwall continet 40. perticatas in longitudine & 4. in latitudine, & quaelibet perticata de 16. pedibus in longitudine.
(m) By the grant of a Selion of land, Selio terrae, a ridge of land which containeth no certainty, for some be greater and some be lesser, and by the grante de una porca, a ridge doth passe, Selio is derived of the French word Sellon for a ridge.
(n) By the grant de centum libratis terrae, or 50. libratis terrae or centum solidatis terrae &c. land of that value passeth, and so of more or lesse, and in ancient time by that name it might have beene demanded. (o) And many things may passe by a name, that by the same name cannot be demanded by a praecipe (for that doth require more prescript forme) but whatsoever may be demanded by a praecipe, may passe by the same name by way of grant.
(p)Frythe is a plaine betweene woods, and so is lawnd or laund, Combe, hope, dene, glyne, hawgh, howgh signifieth a Vally. Howe, hoo, knol, law, peu, and cope a hill. Ey, Ing and worth signifieth a watry place or water. Falesia is a banke or hill by the sea-side, it commeth of falaize, which signifieth the same: of all these you shall read in ancient bookes, charters, deeds,| and records, and to the end that our student should not be discouraged for want of knowledge when he meeteth with them (nescit enim generosa mens ignorantiam pati) wee have armed him with the signification of them, to the end he may proceed in his reading with alacritie, and set upon, and know how to worke into with delight these rough mines of hidden treasure.
(m) By the name of Minera, or Fodina plumbi, &c. the land itself shall passe in a grant if it liverie be made, and also be recovered in an assise, & sic de similibus.
By the grant of a fould course or the like, lands and tenements may passe. (n)Tenementum, Tenement is a large word to passe, not onely lands and other inheritances which are holden, but also offices, rents, commons, profits apprender out of lands and the like, wherein a man hath any franktenement, and whereof he is siesed ut de libero tenemento. But haereditamentum, hereditament, is the largest word of all in that kinde, for whatsoever may be inherited is an hereditament, be it corporeall or incorporeall, reall or personall or mixt.
(o) A man seised of lands in fee hath divers Charters, deeds & evidences, or maketh a feoffment in fee, either without warrantie, or with warrantieonely against him and his heires, the purchaser shall have all the Charters, deeds and evidences, as incident to the Lands, & ratione terrae, to the end he may the better defend the land himselfe, having no warrantie to recover in value, for the evidences are as it were the sinewes of the land, and the feoffor being not bound to warrantie hath no use of them. But if the feoffor be bound to warrantie, so that he is bound to render in value, then the defence of the title at his perill, and therefore the feoffee in that case shall have no deeds that comprehend warrantie, whereof the feoffor may take advantage. Also he shall have such Charters as may serve him to deraigne the warrantie paramount; Also hee shall have all deeds and evidences, which are materiall for the maintenance of the title of the land, but other evidences which concerne the possession, and not the title of the land, the feoffee shall have them.
“To have and to hold.”
These two words doe in this place prove a double signification, viz., a ayer to have an estate of inheritance of lands descendible to his heires, and tener to hold the same of some superior land.
There have been eight formall or orderly parts of a deed of feoffment, viz. 1. the premisses of the deed implied by Littleton. 2. the habendum, whereof Littl. here speaketh. 3. the tenendum mentioned Littleton, 4. the Reddendum, 5. the Clause of warrantie, 6. the In cujus rei testimonium, comprehending the sealing, 7. The date of the deed containing the day, the moneth, the yeare, and stile of the King, or of the yeare of our Lord. (p) Lastly, the clause of hiis testibus, and yet all these parts were contained in verie few and significant words, (q)Haec fuit candida illius aetatis fides et simplicitas, quae pauculas lineis omnia fidei firmamenta posuerunt.
The office of the premisses of the deed is twofold. First, rightly to name the feoffor and the feoffee. And secondly, to comprehend the certaintie of the lands or tenements to be conveyed by the feoffment, either by expresse words, or which may by reference be reduced to a certaintie; for, certum est quod certum reddi potest. The habendum hath also two parts, viz. first, to name againe the feoffee, and secondly to limit the certaintie of the estate. The Tenendum at this day where the fee simple passe, must be of the chiefe lords of the fee. And of the Reddendum more shall be said in his proper place, in the Chapter of Rents. Of the Clause of warantie more shall be said in the chapter of warranties. In cujus rei testimonium sigillum meum apposui was added, for the Seale is of the essentiall part of the deed. The date of the deed many times Antiquitie omitted, and the reason thereof was, for that the limitation of prescription or time of memorie did often in processe of time change, and the law was then holden that a deed, bearing date, before the limited time of prescription was not pleadable, and therefore they made their deeds without date, to the end they might alleage them within the time of prescription. And the date of the deeds was commonly added in the reiqne of Henry the second and Edward the third and so ever since.
And sometime Antiquitie added a place, as Datum apud D. which was in disadvantage of the feoffee, for being in generall, hee may alleage the deed to be made where he will. And lastly, Antiquitie did adde, hiis testibus in the continent of the deed after the In cujus rei testimonium, written with the same hand that the deed was, which witnesses were called, the Deed read, and then their names entered. (r) And this is called charter land, and accordingly the Saxons called it Bockland, as it were bookeland. Which clause of hiis testibus in subjects deeds continued until and in the reigne of Henry the eighth but now is wholly omitted. And it appeareth by the ancient Authors and authorities of the Law; that before the Statute of 12. Edw.2.ca.2. Processe should be a market against the witnesses named in the deed, testes in carta nominatos, (s) and that the same Statute was but an affirmance of the Common Law, which not being well understood, hath caused varietie of opinions in our bookes. But the delay therein was so great, and some times (though rarely) by exceptions against those witnesses, which being found true; they were not to be sworne at all, neither to be joyned to the Jurie, nor as witnesses, (t) as if the witnesse were infamous, for example, if he attainted of a false verdict, or of a conspiracie at the | suit of the King, or convicted of perjurie, or of a Premunire, or of forgerie upon the Statute of 5. Eliz. cap. 14. and not upon the Statue of 1 Hen. 5. cap. 3. or convict of felony, or by judgement lost his cares, or stood upon the pillorie or tumbrell, or beene stigmaticus branded, or the like, whereby they become infamous for some offences, quaesuntminoris culpae sunt majoris infamiae. (c) If a Champion in a Writ of right become recreant or coward, he thereby loseth liberam legem, and thereby becomes infamous, and cannot be a witnesse, for regularly he that loseth liberam legem, becommeth infamous, and can be no witness. Or if the witnesse be an Infidell, or of non sane memorie, or not of discretion, or a partie interessed, or the like. (d) But often-times a man may be challenged to be of a Jurie, that cannot be challenged to be a Witnesse, and therefore though the Witnesse be of the nearest alliance, or kindred, or of counsell, or tenant, or servant to either partie, (or any other exception that maketh him not infamous, or to want understanding, or discretion, or a partie in interest) though it be proved true, shall not exclude the witnesse to be sworn, (e) but he shall be sworne, and his credit upon the exceptions taken against him left to those of the Jurie, who are triers of the fact, insomuch as some Bookes have said, that though the witnesse named in the Deed be named a Disseisor in the writ, yet hee shall be sworne as a witnesse to the deed. (f ) A Witnesse amongst others named in a deed was outlawed, and no Processe was awarded against him by the Statute, because he was extra legem, and an outlawed person cannot be an Auditor. And the Court in some bookes have said, that they have not seene witnesses challenged, which is regularly to be understood with the limitations above-said, but such as are returned to be of a Jurie, are to be challenged for the causes aforesaid for outlawrie, and divers other causes (for the which a witnesse cannot be challenged) and such Processe against witnesses banished. But seeing the witnesses named in a Deed shall be joyned to the Inquest, and shall in some sort joyne also in the verdict (in which case if Jurie and Witnesses finde the Deed that is denied to be the Deed of the partie, the adverse partie is barred of his attaint, because there is more than twelve that affirme the verdict.) It is reason that in that case of joyning, such exception shall be taken against the Witnesse as against one of the Jurie, because he is in the nature of a Juror. (a) And therefore to put one example, if he be outlawed in a personall action he cannot be joyned to the Jurie, but yet that is no exception against him to exclude him to be sworne as a Witnesse to the Jurie. And the reason of all this is, for that if he with others should joyne in verdict with the Jurie in affirmance of the Deed, the partie should be barred of his Attaint. But note, there must be more than one witnesse, that shall bee joyned to the Inquest. And albeit they joyne with the Jurie, and finde it not his Deed, notwithstanding this joyning, the partie shall have his attaint, for it is amaxime in law, (b) That Witnesses cannot testifie a negative, but an affirmative. And if one of the witnesses named in the Deed be one of the panell, he shall be put out of the panell, and all these secrets of law doe notably appeare in our bookes.
To shut up this point, it is to be knowne (c) that when a triall is by witnesses, regularly the affrimative ought to be proved by two or three witnesses, as to prove a summons of the Tenant, or the challenge of a Juror, and the like. But when the triall is by verdict of 12. men, there the judgement is not given upon witnesses, or other kinde of evidence, but upon the verdict, and upon such evidence as is given to the Jurie they give their verdict. And Bracton saith there is probatio duplex, viz. viva. as by witnesses viva voce, and mortua, as by deeds, writings, and instruments. And many times Juries, together with other matter, are much induced by presumptions, whereof there be three sorts, viz. violent, probable, and light or temerarie. Violenta praesumptio is many times plena probatio, as if one be run thorow the body with a sword in a house whereof he instantly dieth, and a man is seene to come out of that house with a bloudy sword, and no other man was at that time in the house. Praesumptio probabilis moveth little, but, Praesumptio levis seu temeraria, moveth not at all. So it is in the case of a Charter of feoffment, if all the witnesses to the Deed be dead (as no man can keepe his witnesses alive, & time weareth out all men) then violent presumption which stands for a proofe is continuall and quiet possession, for ex diuturnitate temporis omnia praesumuntur solemniter esse acta, also the Deed may receive credit,per collationem sigillorum, scripturae, &c. & super fidem cartarum mortuis testibus erit ad patriam de necessitate currendum.
Note, it hath beene resolved by the Justices, that a wife cannot be produced either against or for her husband,quia sunt duae animae in carne una, and it might be a cause of implacable discord and dissention between the husband and the wife, and a meane of great inconvenience, but (d) in some cases women are by Law wholly excluded to beare testimony, as to prove a man to be a Villeine, mulieres ad probationem status hominis admitti non debent. It was also agreed by the whole Court (e) that in an Information upon the Statute of usurie, the partie to the usurious contract shall not be admitted to be a witnesse against the Usurer, for in effect hee should be testis in propria causa, and should avoyd his owne bonds and assurances, and discharge himselfe of the money borrowed, and though hee commonly raise up an Intormer to exhibit the Information, yet in rei veritate he is the partie. And herewith in effect agreeth Brit-|-ton, that be that challengeth a right in the thing in demand, cannot be a witnesse, for that he is a partie in interest. But now let us returne to that from the which by way of digression (upon this occasion) we are fallen.
And the ancient Charters of the King which passed away any franchise or revenue of any estate of inheritance, had ever this clause of hiis testibus of the greatest men of the Kingdome, as the Charters of creation of Nobilitie, yet have at this day: when hiis testibus was omitted, and when teste me ipso, came in into the Kings grants, you shall read in the second part of the Institutes, Mag. Charta, cap. 38. I have tearmed the said parts of the Deed, formall or orderly parts, for that they be not of the essence of a Deed of feoffment, for if such a Deed be without premisses, habendum, tenendum, reddendum clause of warrantie, the clause of In cujus rei testimonium, the Date, and the clause of hiis testibus, yet the Deed is good. (f ) For if a man by Deed give lands to another, and to his heires without more saying, this is good, if he put his Seale to the Deed, deliver it, and make liverie accordingly. (g) So it is if A. give lands, to have and to hold, to B. and his heires, this is good, albeit the feoffee is not named in the promisses. And yet no well advised man will trust to such Deed, which Law by construction maketh good ut res magis valeat, but when forme and substance concurre, then is the Deed faire and absolutely good. The sealing of Charters and Deeds is much more ancient than some, out of error, have imagined, for the Charter of the King Edwyn, brother of King Edgar, bearing Date Anno Domini 956, made of the land called Jecklea in the Isle of Ely, was not onely sealed with his owne Seale (which appeareth by these words, Ego Edwinus gratia Dei totius Britannicae telluris Rex meum donum proprio sigillo confirmavi) but also the Bishop of Winchester put to his Seale, Ego Aelfwinus Winton Ecclesiae divinus speculator proprium sigillum impressi. And the Charter of King Offa, whereby he gave the Peterpence, doth yet remaine under Seale. But no King of England, before, or since the Conquest, sealed with any seale of Armes, before King Richard the first but the Seale was the King sitting in a chaire on the one side of the Seale, and on horse backe on the other side in divers formes. And King Richard the first sealed with a Seale of two Lyons, for the Conqueror for England bare two Lyons, and King John in the right of Aquitaine (the Duke whereof bare one Lyon) was the first that bare three Lyons, and made his Seale accordingly, and all the Kings since have followed him. And King Edward the third in anno 13. of his reigne did quarter the Armes of France with his three Lyons, and took upon him the title of King of France, and all his Successors have followed him therein.
In ancient Charters of feoffment there was never mention made of the deliverie of the Deed, or any liverie of seisin indorsed, for certainly the witnesses named in the Deed, were witnesses of both: and witnesses either of deliverie of the Deed, or of liverie of seisin by expresse tearmes was but of latter times, and the reason was in respect of the notorietie of the feoffment. And I have knowne some ancient deeds of feoffment having liverie of seisin indorsed suspected, and after detected of forgerie. As if a Deed in the stile of the King name him Defensor fidei before 13.Henry the eighth or Supreme head before 20.Henry the eighth at what time hee was first acknowledged supreme head by the Clergie, albeit the King used not the stile of Supreme head in his Charters, &c. till 22.Henry the eighth or King of Ireland, before 33.Henry the eighth at which time he assumed the title of the King of Ireland, being before that called Lord of Ireland, it is certainly forged, & sic de similibus.
And some have observed, that Grace was attributed to King Henry the fourth. Excellent Grace to King Henry the sixth Majestie to King Henry the eighth and before, the King was called, Soveraigne Lord, Liege Lord, Highnesse and Kingly Highnesse, which in Latine in legall proceedings is called Regia Celsitudo, as the beginning of the petition of right to the King is, Humillimè supplicavit vestrae Celsitudini regiae, &c, and the like. And upon this occasson it shall not be impertinent, seeing it is part of the formall Deed, to set downe the severall stiles of the Kings of England since the Conquest.
William the Conquerour commonly stiled himselfe Willielmus Rex, and sometimes Willielmus Rex Anglorum. And the like did William Rufus, and sometimes Willielmus Dei gratia Rex Anglorum.
Henry the first, Henricus Rex Anglorum, and sometimes Henricus Dei gratia Rex Anglorum.
Mawde the sole daughter and heire of Henry the first wrote, Matildis Imperatrix Henrici Regis filia & Anglorum Domina. Divers of whose creations and grants I have seene.
King Stephen used the stile that King Henry the first did. Henry the second, Fitz Emprice omitted Dei gratia, and used this stile, Henricus Rex Angliae, Dux Normanniae, & Aquitaniae, & Comes Andegaviae, hee having the Duchie of Aquitaine, and Earledome of Poitiers in the right of Elianor his wife heire to both: And the Earledomes of Anjow, Tournie, and Maine, as sonne and heire to Jeffery Plantagenet by the said Mawde his wife, daughter and sole heire of King Henry the first. She was first married to Henry the Emperour, and after his death to the said Jeffery Plantagenet. Which Duchie of Aquitaine doth include Gascoinge and Guian.
King Richard the first used the stile that Henry the second his father did, yet was hee King of Cyprus, and after of Jerusalem, but never used either of them.
| King John used that stile, but with this addition Dominus Hiberniae, and yet all that hee had in Ireland was conquered by his father King Henry the second which title of Dominus Hiberniae, hee assumed, as annexed to the Crowne, albeit his father, in the 23. yeare of his reigne, had created him King of Ireland in his life time.
King Henry the third stiled himselfe as his father King John did, untill the 44. yeare of his reigne, and then he left out of his stile Dux Normanniae, & Comes Andegaviae, and wrote onely Rex Angliae, Dominus Hiberniae, & Dux Aquitaniae.
King Edward the first stiled himselfe in like manner as King Henry the third his father did, Rex Angliae, Dominus Hiberniae, & Dux Aquitaniae. And so did King Edward the second during all his reigne. And King Edward the third used the selfe same stile untill the 13. yeare of his reigne, and then hee stiled himselfe in this forme, Edwardus Dei gratia Rex Angliae & Franciae, & Dominus Hiberniae, leaving out of his stile Dux Aquitaniae. He was King of France, as sonne and heire of Isabel wife of King Edward the second daughter and heire of Philip le Beau King of France, he first quartered the French Armories with the English in his great Seale, Anno Domini 1338. & regni sui 14.
King Richard the second and King Henry the fourth used the same stile that King Edward the third did. And King Henry the fifth untill the 8. yeare of his reigne continued the same stile, and then wrote himselfe, Rex Angliae, Haeres & Regens Franciae, & Dominus Hiberniae, and so continued during his life.
King Henry the sixth wrote,Henricus Dei gratia Rex Angliae et Franciae, & Dominus Hiberniae; this King being crowned in Paris King of France used the said stile 39. yeares, till hee was dispossessed of the Crowne by King Edward the fourth who after he had reigned also about ten yeares, King Henry the sixth was restored to the Crowne againe, and then wrote, Henricus Dei gratia Rex Angliae, & Franciae, & Dominus Hiberniae ab inchoatione regni sui 49. & receptionis regiae potestatis primo.
King Edward the fourth Richard the third and Henry the seventh stiled themselves, Rex Angliae & Franciae, & Dominus Hiberniae.
King Henry the eighth used the same stile till the tenth yeare of his reigne, and then hee added this word (Octavus)as Henricus octavus Dei gratia, &c. In the 13. yeare of his reigne hee added to his stile Fidei Defensor. In the 22. yeare of his reigne, in the end of his stile hee added, Supremum Caput Ecclesiae Anglicanae. And in the 23. yeare of his reigne hee stiled himselfe thus, Henricus octavus Dei gratia Angliae, Franciae & Hiberniae Rex, Fidei Defensor, &c. & in terra Ecclesiae Anglicanae & Hiberniae supremum caput.
King Edward the sixth used the same stile, and so did Queene Mary in the beginning of her reigne, and by that name summoned her first Parliament, but soone after omitted Supremum Caput. And after her marriage with King Philip, the stile not withstanding that omission was the longest that ever was, viz. Philip and Mary by the grace of God King and Queene of England and France, Naples, Jerusalem and Ireland, Defenders of the faith, Princes of Spaine and Cicily, Archdukes of Austria, Dukes of Millaine, Burgundy and Brabant, Countees of Hasburgh, Flanders and Tyroll. And this stile continued till the fourth and fifth yeare of King Philip and Queen Mary, and then Naples was put out, and in place thereof both the Cicilies put in, and so it continued all the life of Queene Mary.
I need not mention the stile of Queene Elizabeth, King James, nor of our Soveraigne Lord King Charles, because they are so well knowne, and I feare I have beene too long concerning this point, which certainlyis notunnecessarie to be knowne for many respects. But to shew the causes and reasons of these alterations would aske a Treatise of itselfe, and doth not sort to the end that I have aimed at. And now let us returne to the learning of Charters and Deeds of Feoffments and Grants.
Verie necessarie it is that Witnesses should bee underwritten or indorsed, for the better strengthening of Deeds, and their names (if they can write) written with their owne hands. For Liverie of seisin see hereafter Sect. 59. and for Deeds, Sect. 66. and of Conditionall Deeds see our Author in his Chapter of Conditions. And now let us proceed to the other words of our Author.
“To him and to his Heires.”
Haeres, in the legall understanding of the Common Law, implyeth that he is ex justis nuptiis procreatus, for haeres legitimus est quem nuptiae demonstrant, and is he to whom lands, tenements, or hereditaments by the act of God, and right of blood doe descend of some estate of inheritance, for Solus Deus haeredem facere potest non homo: dicuntur autem haereditas & haeres ab haerendo, quod est arctè insidendo, nam qui haeres est, haeret, vel dicitur ab haerendo quia haereditas sibi haeret, licet nonnulli haeredem dictum velint quod haeres fuit, hoc est dominus terrarum, &c. quae ad eum preveniunt.
A monster which hath not the shape of mankinde, cannot be heire or inherit any land, albeit it be brought forth within marriage, (a) but although hee hath deformitie in any part of his bodie, yet if he hath humane shape he may be heire. Hii qui contra formam humani generis converso more procreantur, ut si mulier monstrosum, vel prodigiosumenixa, inter liberos non computentur, partus tamen cui natura aliquantulem ampliaverit vel diminuerit, non tamen superabundanter (ut si sex digitos vel nisi quatuor habuerit) bene debet inter liberos connumerari. | Si inutilia natura reddidit, ut si membra tortuosa habuerit, non tamen is partus monstrosus. Another saith, Ampliatio seu diminutio membrorum non nocet. (b) A Bastard cannot be heire, for (as hath beene said before) qui ex damnato coitu nascuntur inter liberos non computentur. Everie heire is either a male, or female, or an Hemophradite, that is, both male and female. And an Hermophradite (which is also called Androgynus) shall be heire, either as male or female, according to that kinde of the sex which doth prevaile. Hermaphradita, tam masculo, quàm foeminae comparatur secundum praevalescentiam sexus incalescentis. And accordingly it ought to be baptized. See more of this matter, Sect. 35.
(c) A man seised of lands in fee hath issue an Alien that is borne out of the Kings ligeance, he cannot be heire, propter defectum subjectionis, albeit hee be borne within lawfull marriage. If made Denizen by the Kings Letters Patents, yet cannot hee inherit to his father or any other. But otherwise it is if hee be naturalized by Act of Parliament, for then hee is not accousted in Law Alienigena, but Indigena. But after one be made Denizen, the issue that hee hath afterwards shall be heire to him, but no issue that he had before. If an Alien commeth into England and hath issue two sonnes, these two sonnes are Indigenae subjects borne, because they are borne within the Realme. And yet if one of them purchase lands in fee, and dieth without issue, his brother shall not be his heire, for there was never any inheritable blood betweene the father and them, and where the sonnes by no possibilitie can be heire to the father, the one of them shall not be heire to the other. See more at large of this matter, Sect. 198.
If a man be attainted of treason, or felony, although he be borne within wedlocke, hee can be heire to no man, nor any man heire to him propter delictum, for that by his attaindor his blood is corrupted.Andthiscorruption of blood is so high, as it cannot absolutely be salved, and restored but by Act of Parliament, for albeit the person attainted obtaine his Charter of pardon, yet that doth not make any to be heire whose blood was corrupted at the time of the attainder, either downeward or upward. (d) As if a man hath issue a sonne before his attainder, and obtaineth his pardon, and after the pardon hath issue another sonne, at the time of the attainder, the blood of the eldest was corrupted, and therefore he cannot be heire. But if he dye living his father, the younger sonne shall be heire, for he was not in esse at the time of the attainder, and the pardon restored the blood as to all issues begottenafterwards. But in that case if the eldest sonne had survived the father, the younger sonne cannot be heire; because he hath an elder brother which by possibilitie might have inherited, but if the elder brother had beene an Alien, the younger sonne should be heire, for that the Alien never had any inheritable blood in him. See more plentifully of this matter, Sect. 646, 647.
If a man hath issue two sonnes, and after is attainted of treason, or felony, and one of the sons purchase lands and dieth without issue, the other brother shall be his heire, for the attainder of the father corrupteth the lineall blood only, and not the collaterall blood betweene the brethren, which was vested in them before the attainder, and each of them by possibilitie might have beene heire to the father, and so hath it beene adjudged, (*) but other wise in the case of the Alienee, as hath beene said. (e) But some have holden that if a man after he be attainted of treason or felony have issue two sonnes; that the one of them cannot be heire to the other, because they could not be heire to the father, for that they never had any inheritable blood in them.
(f) One that is borne deafe and dumbe may be heire to another, albeit it was otherwise holden in ancient time. And so if borne deafe, dumbe, and blinde, for in hoc casu, vitio parcitur naturali, but contract they cannot. Ideots, leapers, mad men, outlawes in debt, trespasses, or the like, persons excommunicated, men attainted in a praemunire, or convicted of heresie, may be heires.
(g) If a man hath a wife, and dieth, and within a verie short time after the wife marrieth againe, and within nine moneths hath a childe, so as it may be the childe of the one or of the other. Some have said, That in this case the childe may chuse his father, quia in hoc casu filiatio non potest probari, and so is the Booke to be intended, for avoyding of which question and other inconveniences, this was the Law before the Conquest, Sit omnis vidua sine marito duodecim mensibus, & si maritauerit perdat dotem.
(h) A man by the Common Law cannot be heire to goods or Chattels, for haeres dicitur ab haereditate. (i) If a man buy divers fishes, as Carps, Breames, Tenches, &c. and put them in his pond, and dyeth, in this case the heire shall have them, and not the Executors, but they shall goe with the inheritance, because they were at libertie and could not be gotten without industrie, as by nets, and other engines, otherwise it is if they were in a trunke or the like. Likewise Deere in a Parke, Coneyes in a Warren, and Doves in a Dove-house, young and old shall goe to the heire. (k) But of ancient time the heire was permitted to have an Action of debt upon a bond made to his Ancestor and his heires, but the Law is not so holden at this day. Vid. Sect. 12.
(l) It is to be noted that one cannot be heire till after the death of his Ancestor, hee is called haeres apparens, heir apparent.
| In our old Bookes and Records there is mention made of another heire, viz. haeres astrarius so called of Astre, that is, an harth of a house, because the Ancester by conveyance hath set his heire apparent, and his family in a house and living in his lifetime, of whom Bracton saith thus, (a)item esto quod haeres sit astrarius, vel quod aliquis antecessor restituat haeredi in vita sua haereditatem, & se dimiserit, videtur quod nullo tempore jacebit haereditas, & ideo quod nec relevari possit, nec debet, nec relevium dari. (b) For the benefit and safetie of right heires contra partus suppositos, the Law hath provided remedy by the Writ De ventre inspiciendo, whereof the rule in the Register is this; Nota si quis habens haereditatem duxerit aliquam in uxorem & postea moriatur ille sine haerede de corpore suo exeunte, per quod haereditas illa fratri ipsius defuncti descendere debeat, & uxor dicit se esse praegnantem de ipso defuncto cum non sit, habeat frater, & haeres breve de ventre inspiciendo. It seemeth by Bracton and Fleta which followed him, that this Writ doth lye, Ubi uxor alicujus in vita viri sui se praegnantem fecit cum non sit, vel post mortem viri sui se praegnantem fecit cum non sit ad exhaeredationem veri haeredis, &c. ad quaerelam veri haeredis per praeceptum domini regis, &c. which is to be understood according to the rule of the Register: when a man having lands in fee simple dieth, and his wife soone after marrieth againe, and faines her selfe with childe by her former husband, in this case though she be married, the Writ De ventre inspiciendo doth lye for the heire. But if a man seised of lands in fee (for example) hath issue a daughter, who is heire apparent, she in the life of her father cannot have this writ for divers causes; first, because she is not heire, but heire apparant, for as hath beene said, nemo est haeres viventis, and this Writ is given to the heire to whom the land is descended. And both Bracton and Fleta saith, that this Writ lieth Ad quaerelam veri haeredis, which cannot be in the life of his Ancestor, and herewith agreeth Britton and the Register. Secondly, the taking of a husband in the case aforesaid being her owne act, cannot barre the heire of his lawfull Action once vested in him. Thirdly, the Law doth not give the heire apparant any Writ, for it is notcertaine whether he shall be heire, solus Deus facit haeredes. Fourthly, the inconvenience were too great if heires apparent in the life of their Ancestor should have such a Writ to examine and trie a mans lawfull wife in such sort as the Writ De ventre inspiciendo doth appoint, and if she should be found to be with child, or suspect, then shee must bee removed to a Castle and there safely kept untill her deliverie, and so any mans wife might be taken from him against the Laws of God and man.
The words of the Writ De ventre inspiciendo make this evident, Rex Vic. salutem, monstravit nobis A. quod cum R. quae fuit uxor Clementis B. praegnans non sit, ipsa falsò dicit se esse praegnantem de eodem Clemente, adexhaeredationem ipsius A. desicut terra quae fuit ejusden C. ad ipsum A. jure haereditariodescendere debeat tanquam ad fratrem & haeredem ipsius se si praedict. R. prolem de eo non habuerit, &c. But this rather belongs to the Treatise of originall Writs, and therefore thus much herein shall suffice.
And it is to be observed that everie word of Littleton is worthy of observation, first (Heires) in the plurall number, for if a man give land to a man & to his heire in the singular number, he hath but an estate for life, for his heire cannot take a fee simple by descent, because he is but one, and therefore in that case his heire shall take nothing. Also observable is this conjunctive (Et), for if a man give lands to one, To have and to hold to him or his heires, hee hath but an estate for life for the uncertaintie. (Se, suis) If a man give land unto two, To have and to hold to them two & haeredibus (c) omitting suis, they have but an estate for life for the uncertaintie, whereof more hereafter in this Section. But it is said, if land be given to one man, & haeredibus, omitting suis, that notwithstanding a fee simple passeth, but it is safe to follow Littleton.
(d) “and his Assignes.”
Assignee commeth of the verbe assigno. And note there bee Assignes in Deed, and Assignes in Law, whereof see more in the Chapter of Warrantie, Sect. 733.
“these words (his Heires) which words onely make an Estate of Inheritance in all Feoffments and Grants.”
(e)Si autem facta esset donatio, ut si dicam, do tibi talem terram, ista donatio non extendit ad haeredes sed ad vitam donatoria, &c. (f ) Here Littleton treateth of purchases by naturall persons, and not of Bodies politique or corporate; (g) for if lands be given to a sole Body politique or corporate, (as to a Bishop, Parson, Vicar, Master of an Hospitall, &c.) there to give him an estate of inheritance in his politique or corporate capacitie, hee must have these words, To have and to hold to him and his successors, for without these words Successors, in these cases there passeth no inheritance, for as the heire doth inherit to the Ancestor, so the Successor doth succeed to the Predecessor, and the Executor to the Testator. (h) But it appeareth here by Littleton, that if a man at this day give lands to IS and his Successors, this createth no fee simple in him, for Littleton speaking of naturall persons saith that these words (his heires) make an estate of inheritance in all Feoffments and Grants, whereby he excludeth these words (his successors.) (i) And yet if it be an ancient grant it must be expounded as the Law was taken at the time of the grant. (k) A Chantrie Priest incorporate tooke a Lease to | him and his successors for a hundred yeares, and after tooke a release from the Leasor to him and his successors, and it was adjudged that by the release he had but an estate for life, for he had the Lease in his naturall capacitie for it could not goe in succession, and (his successors) gave him no estate of inheritance for want of these words (his heires.) (l) If the King by his Letters Patents giveth lands Decano & Capitulo, habendum sibi & haeredibus & successoribus suis, In this case albeit they be persons in their naturall capacitie to them and their heires, yet because the Grant is made to them in their politique capacitie, it shall enure to them and their successors. And so if the King doe grant lands to I. S. Habendum sibi & successoribus sive haeredibus suis, this Grant shall enure to him and his heires.
(m) B. having divers sonnes and daughters, A. giveth lands to B. & Liberis suis, et a lour heires, the father and all his children doe take a fee simple joyntly by force of these words (their heires) but if hee had no childe at the time of the feoffment, the childe borne afterward shall not take.
These words (his heires) doe not onely extend to his immediate heires, but to his heires remote, and most remote, borne and to be borne, (n)Sub quibus vocabulis (haeredibus suis) omnes haeredes propinqui comprehenduntur, & remoti, nati, & nascituri. , And haeredum appellatione veniunt haeredes haeredum in infinitum. And the reason wherefore the Law is so precise to prescribe certaine words to create an estate of inheritance, is for avoyding of uncertaintie, the mother of contention and confusion.
There be many words so appropriated, as that they cannot be legally expressed by any other word, or by any periphrasis, or circumlocution: Some to estates of lands, &c. as here and in (a) other places of our Author. In this place these words tantsolement, not solement alone, but tantsolement all onely, i. solummodo, or duntaxat are to be observed; (b) Some to Tenures; (c) Some to persons; (d) Some to offences; (e) Some to formes of originall Writs either for recoverie of right, or removing, or redresse of wrong, (f ) Some to warrantie of land. These have I touched for examples, I leave others to the studious Reader to observe, and adde, holding this for an undoubted veritie, that there is no knowledge, case, or point in Law, seeme it of never so little account, but will stand our Student in stead at one time or other, and therefore in reading, nothing to be pretermitted.
“make an Estate.”
Status dicitur à stando, because it is fixed and permanent. The Isle of Man, which is no part of the Kingdome, but a distinct Territorie of it selfe, hath beene granted by the great Seale to divers subjects and their heires. (g) It was resolved by the Lord Chancellor, the two chiefe Justices and chiefe Baron, that the same is an estate descendible according to the course of the Common Law, for whatsoever state of inheritance passe under the great Seale of England, it shall be descendible according to the rules, and course of the Common Law of England.
“in all Feoffments and Grants.”
Here hee giveth the feoffment the first place, as the ancient and most necessarie conveyance, both for that it is solemne and publike, and therefore best remembered and proved, (*) and also for that it cleareth all disseisins, abatements, intrussions, and other wrongfull or defensible estates, where the entrie of the Feoffor is lawfull, which neither Fine, Recoverie, nor Bargaine and sale by Deed indented and inrolled doth. And here is implyed a division of Fee, or Inheritance, viz. (h) into corporeall (as Lands and Tenements which lye in Liverie) comprehended in this word Feoffment, and may passe by Liverie by Deed, or without Deed, which of some is called Haereditas corporata, and incorporeall, (which lye in Grant, and cannot passe by Liverie, but by Deed, (as advowsons, Commons, &c. and of some is called Haereditas incorporata) and, by the deliverie of the Deed, the Freehold, and Inheritance of such Inheritance, as doth lye in Grant, doth passe) comprehended in this word Grant. And the Deed of incorporeate inheritances doth equall the Liverie of corporeate. And therefore Littleton saith, in all feoffments and Grants, Hereditas, alia corporalis, alia incorporalis: Corporalis est, quae tangi potest & videri, incorporalis quae tangi non potest, nec videri. ,
Feoffment is derived of the word of Art Feodum,quia est donatio feodi, for the ancient Writers of the Law called a feoffment donatio, of the verbe do or dedi, which is the aptest word of feoffment. And that word Ephron used, when he enfeoffed Abraham, saying, I give thee the field of Machpelah over against Mamre, and the Cave therein I give thee, and all the trees in the field and the borders round about, all which were made sure unto Abraham for a possession, in the presence of many witnesses.
By a feoffment the corporeate fee is conveyed, and it properly betokeneth a conveyance in fee, as our Author himselfe hereafter saith, in his Chapter of Tenant for life. And yet sometime improperly it is called a feoffment when an estate of freehold onely doth passe, Done est nosme generall plus que nest feoffment, car done est generall a touts choses moebles & nient moebles, feoffment est riens forsque del soyle. And note there is a difference inter cartam & factum, for | carta is intended a Charter which doth touch inheritance, and so is not factum unlesse it hath some other addition.
Grant, Concessio, is properly of things incorporeall, which (as hath been said) cannot passe without Deed. And here it is to be observed (that I may speake once for all) that everie period of our Author in all his three Bookes containes matter of excellent learning, necessarily to bee collected by implication, or consequence, for example hee saith here, that these words (his heires) make an estate of inheritance in all feoffments and grants, he expressing feoffments and grants, necessarily implyeth, that this rule extendeth not, first, to Last Wills and Testaments, for thereby, (i) as he himselfe after saith, an estate of inheritance may passe without these words (his heires) (k) As if a man devise 20. acres to another, and that he shall pay to his Executors for the same ten pound, and hereby the Devisee hath a Fee simple by the intent of the Devisor, albeit it be not to the value of the land. (l) So it is if a man devise lands to a man imperpetuum, or to give, and to sell, or in feodo simplici, or to him and to his Assignes for ever. In these cases a Fee simple doth passe by the intent of the Devisor, but if the devise be to a man and his Assignes without saying (for ever) the Devisee hath but an estate for life. (m) If a man devise land to one & sanguino suo, that is a Fee simple, but if it be Semini suo, it is an estate taile.
(n) Secondly, that it extendeth not to a Fine sur conusans de droit come ceo que il ad de son done, by which a fee also may passe without this word (heires) in respect of the height of that fine, and that thereby is implyed that there was a precedent gift in fee.
Thirdly, nor to certain Releases, and that three manner of wayes, (o) first when an estate of inheritance passeth and continueth, as if there be three Coparceners or Joyntenants, and one of them release to the other two, or to one of them generally without this word (heires) by Littletons owne opinion they have a Fee simple as appeareth hereafter. 2. By release (p) when an estate of inheritance passeth and continueth not, but is extinguished, as where the Lord releases to the Tenant, or the Grantee of a rent, &c. release to the Tenant of the land generally all his right, &c. hereby the Seigniorie, rent, &c. are extinguished for ever, without these words (heires.) 3. (q) when a bare right is released, as when the Disseisee release to the Disseisor all his right, he need not (saith our Author in another place) speake of his heires. But of all these, and the like cases, more shall be treated in their proper places. 4. Nor to a Recoverie, A. seised of land suffereth B. to recover the land against him by a common recoverie where the judgement is quod praedictus B. recuperet versus praed’. A. tenementa praedicta cum pertin’, yet B. recovereth a fee simple without these words (heires) for regularly everie Recoveror recovereth a fee simple. 5. Nor to a creation of Nobilitie by Writ, for when a man is called to the Upper House of Parliament by Writ, he is a Baron and hath inheritance therein without the word (heires) yet may the King limit the generall state of inheritance created by the Law and Custome of the Realme to the heires males, or generall, of his body by the Writ, as he did to Bromflete who in 27. H. 6: was called to Parliament by the name of the Lord Vescye, &c. with the limitation in the Writ to him and the heires males of his body, but if he be created by Patent, he must of necessitie have these words (his heires) or the heires males of his body, or the heires of his body, &c. otherwise he hath no inheritance. The first creation of a Baron by patent that I finde was of John Beauchampe of Holte created Baron by patent in 11. R. 2. for Barons before that time were called by Writ. And it is to be observed that of ancient times Earles, &c. were created by girding them with a sword, and nominating him Earle, &c. of such a Countie or place, and this with a calling of him to Parliament by Writ, by that name was a sufficient creation of inheritance.
But out of this rule of our Author, the Law doth make divers exceptions (Et exceptio probat regulam) for sometime by a feoffment a Fee simple shall passe without these words (his heires.) For example, first, (r) if the father enfeoffe the son, To have and to hold to him and to his heires, and the son infeoffeth the father as fully as the father infeoffed him, by this the father hath a Fee simple, quia verba relata hoc maxime operantur per referentiam ut in esse videntur. (s) Secondly, in respect of the consideration, a Fee simple had passed at the Common Law without this word (heires) and at this day an estate of inheritance in taile, as if a man had given land to a man with his Daughter in frank marriage generally, a Fee simple had passed without this word (heires) for there is no consideration so much respected in Law, as the consideration of marriage, in respect of alliance and posteritie. (t) Thirdly, if a Feoffment or Grant bee made by Deed to a Mayor and Communaltie or any other Corporation aggregate of many persons capable, they have a Fee simple without the word (Successors) because in judgement of the Law they never dye. (u) Fourthly, in case of a sole Corporation a Fee simple shall sometime passe without this word (Successors) as if a feoffment in fee be made of land to a Bishop, To have and to hold to him in libera eleemosyna, a Fee simple doth passe without this word (Successors.) (w) And so if a man give lands to the King by Deed inrolled, a Fee simple doth passe without these words (Successors or Heires) because in judgement of Law the King never dieth. Fifthly, in Grants sometimes an Inheritance shall passe without this word (heires) (x) as if partition be made between Coparceners of lands in Fee simple, and for oweltie of partition the one grant a rent to | the other generally, the Grantee shall have a Fee simple without this word (heires) because the Grantor hath a Fee simple in consideration whereof he granted the rent. Ipsae etenim leges cupiunt ut jure regantur. Sixthly, by the Forrest Law if an Assart bee granted by the King at a Justice seat (which may be done without Charter) to another Habendum & tenendum sibi imperpetuum he hath a Fee simple without this word (heires) (y) for there is a speciall Law of the Forrest, as there is a Law Marshall for wars, and a Marine Law for the Seas. (z) And this rule of our Author extendeth to the passing of estates of inheritances in exchanges, releases, or confirmations that ensure by way of enlargement of estates, warranties, bargaine and sales by Deed indented and inrolled, and the like, in which this word (heires) is also necessarie, for they doe tantamount to a feoffment or grant, or stand upon the same reason that a feoffment or grant doth, for like reason doth make like Law, Ubi eadem ratio, ibi idem jus. And this is to be observed thorowout all these three Bookes, that where other cases fall within the same reason, our Author doth put his case but for example, for so our Author himselfe in another place explaneth it, saying, Et memorandum que en totus auters cases coment que ne sont icy expressment moves & specifies si sont en semblable reason sont en semblable ley. And here our Author is to bee understood to speake of heires when they are inheritable by discent, for they are capable of land also by purchase, and then the course of descent is sometime altered, as if lands of the nature of Gavelkind be given to B and his heires having issue divers sons, all his sons after his desease shall inherit, but if a lease for life be made, the remainder to the right heires of B. and B. dieth, his eldest son onely shall inherit, for hee onely to take by purchase is right heire by the Common Law. So note a diversitie betweene a purchase and a descent, but where the remainder is limited to the right heires of B. it need not to be said, and to their heires, for being plurally limited it includeth a Fee simple, and yet it resteth but in one by purchase.
Out of that which hath beene said it is to be observed, that a man may purchase lands to him and his heires by ten manner of conveyances, (for I speake not here of Estoppels.) First, by Feoffment: Secondly, by Grant (of which two our Author here speaketh.) Thirdly, by Fine, which is a feoffment of record. Fourthly, by common Recoverie, which is a common conveyance, and is in nature of a feoffment of record. Fifthly, by Exchange, which is in nature of a Grant. Sixthly, by Release to a particular Tenant. Seventhly, by Confirmation to a particular Tenant, both which are in nature of Grants. Eighthly, by Grant of a reversion or remainder with attornment of the particular Tenant, of all which our Author speaketh hereafter. Ninethly, by bargaine and sale by Deed indented and inrolled ordained by Statute since Littleton wrote. Tenthly, by Devise by custome of some particular place, as hee sheweth hereafter, and since he wrote; by Will in writing, generally by authoritie of Parliament.
What words are apt words for a Feoffment or Grant, vide Sect. 531. Our Author speaketh of Feoffments and Grants, whereby is implyed lawfull conveyances, and therefore this rule extendeth not to Disseisins, Abatements, or Intrusions into lands or tenements, or to usurpations to Advowsons, &c. in which cases estates in Fee simple are gained by the act and wrong of the Disseisors, Abators, Intruders and Usurpers, and if a disseisin, abatement, or intrusion be made to the use of another, if cey que use agreeth thereunto in pays by this bare agreement he gaineth a Fee simple without any liverie of seissin or other ceremony.
And if a man purchase land in fee simple and dye without issue, hee which is his next cosen collaterall of the whole bloud, how farre so ever hee bee from him in degree, may inherit and have the land as heire to him.
Littleton sheweth here who shall bee heire to lands in Fee simple, for he intendeth not this case of an estate taile, for that he speaketh of an heire of the whole bloud, for that extendeth not to estates in taile as shall bee said hereafter in this Chapter, Sect. 6.
“his next cosen collaterall.”
Neither excludeth hee brethren or sisters because hee hath a speciall case concerning them in this Chapter, Sect. 5. and in his Chapter of Parceners, but this is intended | where a man purchaseth lands and dieth without issue, and having neither brother nor sister, then his next cosin collaterall shall inherit. So as here is implyed a divisson of heires, viz. lineall (who ever shall firstinherit) and collaterall, (who are to inherit for default of lineall.) For in descents it is a maxime in Law quod linea recta semper praefertur transversali. Lineall descent is conveyed downward in a right line, as from the grandfather to the father, from the father to the sonne, &c. Collaterall descent is derived from the side of the lineall, as grandfathers brother, fathers brother, et.Prochein cousin collateral enheritera doth give a certaine direction to the next cosin to the son, and therefore the fathers brother and his posteritie shall inherit before the grandfathers brother and his posteritie. Et sic de caeteris, for propinquior excludit propinquum, & propinquus remotum, & remotus remotiorem.
Upon this word (Prochein) I put this case. One hath issue two sonnes A. and B. and dieth, B. hath two sonnes C. and D. and dieth. C. the eldest son hath issue and dieth: A. purchaseth lands in Fee simple and dieth without issue, D. is his next cosin, and yet shall not inherit, but the issue of C. for hee that is inheritable is accounted in Law next of bloud. And therefore here is understood a division of next, viz. next, jure repraesentationis, and next, jure propinquitatis that is, by right of representation and by right of propinquitie. And Littleton meaneth of the right of representation, for legally in course of descents he is next of bloud inheritable. And the issue of C. doth represent the person of C. and if C. had lived he had beene legally next of bloud. And whensoever the father if he had lived, should have inherited, his lineall heire by right of representation shall inherit before any other, though another be jure propinquitatis neerer of bloud. And therefore Littleton intendeth his case of next cosin of bloud immediately inheritable. So as this produceth another division of next bloud, viz. immediately inheritable, as the issue of C. and mediately inheritable as D. if the issue of C. die without issue, for the issue of C. and all that live be they never so remote shall inherit before D. or his line, and therefore Littleton saith well de quel pluis long degree que il soit. And here ariseth a diversitie in Law betweene next of bloud inheritable by descent and next of bloud capable by purchase. And therefore in the case before mentioned if a Lease for life were made to A. the remainder to his next of bloud in fee. In this case as hath beene said D. shall take the remainder, because he is next of bloud and capable by purchase, though he be not legally next to take as heire by descent.
But if there be father and son, and the father hath a brother that is uncle to the son, and the son purchase land in fee simple, and die without issue, living his father, the uncle shall have the land as heire to the son, & not the father, yet the father is neerer of bloud; because it is a maxime in Law, That inheritance may lineally descend, but not ascend. Yet if the son in this case dye without issue, and his uncle enter into the Land as heire to the sonne (as by Law hee ought) and after the uncle dieth without issue, living the father, the father shall have the land as heire to the uncle, & not as heire to his sonne, for that he commeth to the land by collelaterall discent & not by lineal ascent.
“yet the father is neerer of bloud,”
And therefore some doe hold upon these words of Littleton that if a Lease for life were made to the sonne the remainder to his next of bloud, that the father should take the remainder by purchase, and not the uncle, for that Littleton saith the father is next of bloud, and yet the uncle is heire. As if a man hath issue two sonnes, and the eldest sonne hath issue a sonne and die, a remainder is limited to the next of his bloud, the younger son shall take it, yet the other is his heire.
(p) “it is a maxime in Law, That inheritance may lineally descend, but not ascend.”
Maxime, i.e. a sure foundation or ground of Art, and a | conclusion of reason so called (q)quia maxima est ejus dignitas & certissima authoritas, atque quod maxime omnibus probetur, so sure and uncontrollable as that they ought not to be questioned. (r) And that which our Author here and in other places calleth a Maxime, hereafter he calleth a Principle, and it is all one with a Rule, a common ground, Postulatum or an Axiome, and it were too much curiositie to make nice distinctions betweene them. And it is well said in our Bookes, (s)nest my a disputer lancient principles del ley. I never read any opinion in any booke old or new against this Maxime, but onely in lib. rub. where it is said, (t)si quis sine liberis discesserit, pater aut mater ejus in haereditatem succedat, vel frater & soror si pater & mater desint, si nec hos habeat, soror patris vel matris & deinceps qui propinquiores in parentela fuerint haereditario succedant, & dum virilis sexus extiterit, & haereditas abinde sit, foemina non haereditat’. But all our ancient Authors and the constant opinion ever since doe affirme the maxime.
By this maxime in the conclusion of his case, onely lineall ascention in the right line is prohibited, and not in the collaterall, (u)Quaelibet haereditas naturaliter quidem ad haeredes haereditabiliter descendit, nunquam quidem naturaliter ascendit, descendit itaque jus quasi ponderosum quod cadens deorsum recta linea vel transversali, & nunquam reascendit ea via qua descendit post mortem antecessorum, à latere tamen ascendit alicui propter defectum haeredum inferius provenientium; so as the lineall ascent is prohibited by Law, and not the collaterall. And in prohibiting the lineall ascent, the Common Law is assisted with the Law of the twelve tables.
Here our Author for the confirmation of his opinion draweth a reason and a proofe (as you have perceived) from one of the maximes of the Common Law: Now that I may here observe it once for all, his proofes and arguments, in these his three bookes, may be generally divided into two parts, viz. from the Common Law and from Statutes, of both which, and of their severall branches I shall give the studious Reader some few examples, and leave the rest to his diligent observation.
For the Common Law his proofes and arguments are drawen from twentie severall fountaines or places.
(a) First, from the Maximes, Principles, Rules, Intendment and Reason of the Common Law, which indeed is the rule of the Law, as here, and in other places our Author doth use.
(b) Secondly, from the bookes, records, and other authorities of Law cited by him, Ab authoritate, & pronunciatis.
(c) Thirdly, from originall Writs in the Register, à rescriptis valet argumentum.
(d) Fourthly, from the forme of good pleading. (e) Fifthly, from the right entrie of Judgements.
(f) Sixthly, à praecedentibus approbatis & usu, from approved Precedents and Use.
(g) Seventhly, à non usu, from not use.
(h) Eighthly, ab artificialibus argumentis, consequentibus & conclusionibus, artificiall arguments, consequents and conclusions.
Ninthly, (i)à communi opinione jurisprudentium, from the common opinion of the Sages of the Law.
Tenthly, (k)ab inconvenienti, from that which is inconvenient.
Eleventhly, (l)à divisione, from a division, vel ab enumeratione partium, from the enumeration of the parts.
Twelfthly, (m)à majore ad minus, from the greater to the lesser, or (n) from the lesser to the greater, (o)à simili, (p)à pari.
13. (p)Ab impossibili, from that which is impossible.
14. (q)A fine, from the end.
15. Ab utili vel inutili, from that which is profitable or unprofitable.
16. (r)Ex absurdo, for that thereupon shall follow an absurditie, quasi à surdo prolatum, because it is repugnant to understanding and reason.
17. (s)A natura & ordine naturae, from nature or the course of nature.
| 18. (t)Ab ordine religionis, from the order of Religion.
19. (u)A communi praesumptione, from a common presumption.
20. (w)A lectionibus jurisprudentium, from the readings of learned men or Law. From Statutes his arguments and proofes are drawne.
1. (x) From the rehearsall or preamble of the Statute.
2. By the body of the Law diversly interpreted.
Sometime by other parts of the same Statute, which is benedicta expositio, & ex visceribus causae.
(y) Sometime by the reason of the Common Law. But ever the generall words are to bee intended of a lawfull Act, (z) and such interpretation must ever be made of all Statutes, that the innocent or he in whom there is no default may not be damnified.
There be divers Lawes within the Realme of England. As first (a)Lex Coronae, the Law of the Crowne.
2. (b)Lex & consuetudo Parliamenti. Ista lex est ab omnibus quaerenda, à multis ignorata, à paucis cognita.
3. (c) Lex naturae, the Law of nature.
4. (d)Communis Lex Angliae, the Common Law of England sometime called Lex terrae, intended by our Author in this and the like places.
5. (e) Statute Law, Lawes established by authoritie of Parliament.
6. (f)Consuetudines, Customes reasonable.
7. (g)Jus belli, The Law of Armes, Warre, and Chivalrie, in republica maximè conservanda sunt jura belli.
8. (h) Ecclesiasticall or Canon Law in Courts in certaine Cases.
9. (i) Civill Law in certaine cases not onely in Courts Ecclesiasticall, but in the Courts of the Constable and Marshall, and of the Admiraltie, in which Court of the Admiraltie is observed, la ley Olyron, anno 5. of Richard the first, so called, because it was published in the Isle of Olyron.
10. (k)Lex forestae, forest Law.
11. (l) The Law of Marque or reprisail.
12. (m)Lex mercatoria, Merchant, &c.
13. (n) The Lawes and Customes of the Isles of Jersey, Gernesey, and Man.
14. (o) The Law and priviledge of the Stannaries.
15. (p) The Lawes of the East, West, and middle Marches, which are now abrogated.
But here of this is little taste for our Student, that he may be capable of that which hee shall read concerning these and others in Records, and in our Bookes, and orderly observe them, shall suffice.
“and his uncle enter into the Land.”
For if the Uncle in this case doth not enter into the land, then cannot the father inherit the land, for there is another maxime in Law herein implyed. (q) That a man that claimeth as heire in fee simple to any man by descent must make himselfe heire to him that was last seized of the actuall freehold and inheritance. And if the Uncle in this case doth not enter, then had he but a freehold in Law, and no actuall freehold, but the last that was seized of the actuall freehold was the sonne to whom the father cannot make himselfe heire, and therefore Littleton saith, Et son uncle enter en la terre (sicome denoit per la ley) to make the father to inherit, as heire to the uncle. (r) Note, that true it is that the uncle in this case is heire, but not absolutely heire, for if after the descent to him the father hath issue a sonne or daughter, that issue shall enter upon the Uncle. (f ) And so it is if a man hath issue a sonne and daughter, the sonne purchaseth land in fee and dieth without issue, the daughter shall inherit the land, but if the father hath afterward issue a sonne, this sonne shall enter into the Land as heire to his brother, and if he hath issue a daughter and no sonne, she shall be coparcener with her sister.
“as by Law hee ought.”
These words as a key doe open the secrets of the Law, for hereupon it is concluded, that where the Uncle cannot get an actuall possession by entrie or otherwise, there the father in this case cannot inherit. And therefore if an Advowson be granted to the sonne and his heires, and the sonne dye without issue, and this descend to the uncle, and he dye before he doth or can present to the Church, the father shall not inherit, because he should make himselfe heire to the son, which hee cannot doe. And so of a rent and the like. But if the uncle had presented to the Church, or has seisin of the rent, there the father should have inherited. For Littleton putteth his case of an entrie into land but for an example, If the sonne make a Lease for life, and die without issue, and the reversion descend to the uncle, and he die, the reversion shall not descend to the father, because in that case he must make himselfe heire to the sonne. A. infeoffe the sonnes with warrantie to him and his heires, the sonne dies, the uncle enters into the Land and dies, the father if he be impleaded shall not take advantage of this war-|-rantie, for then he must vouch A. as heire to his sonne, which hee cannot doe for albeit the warrantie descended to the uncle, yet the uncle leaveth it as he found it, and then the father by Littletons (devoit) cannot take advantage of it. For Littleton, Sect. 603. saith that warranties shall descend to him that is heire by the Common Law, and Sect. 718. hee saith that everie warrantie which descends, doth descend to him that is heire to him which made the warrantie by the Common Law, which proveth that the father shall not be bound by the warrantie made by the son, for that the father cannot be heire to the son that made the warrantie. And a warrantie shall not goe with tenements, whereunto it is annexed, to any especiall heire but alwaies to the heire at the Common Law. And therefore if the uncle be seised of certaine lands, and is disseised, the son release to the disseisor with warrantie, and die without issue, this shall bind the uncle, but if the uncle die without issue, the father may enter, for the warrantie cannot descend upon him. So if the sonne concludeth himselfe by pleading concerning the tenure and services of certaine lands, this shall bind the uncle, but if the uncle die without issue, this shall not bind the father, because he cannot be heire to the son, and consequently not to the Estoppell in that case: but if it be such an Estoppell as runneth with the land, then it is otherwise.
And in case, where the sonne purchaseth Land in Fee simple, and dyes without issue, they of his bloud on the fathers side shall inherit as heires to him, before any of the bloud on the mothers side. But if hee hath no heire on the part of his father, then the land shall descend to the heires on the part of the mother. But if a man marrieth an inheretrix of lands in Fee simple, who have issue a son, and die, and the sonne enter into the tenements, as sonne and heire to his mother, and after dies without issue, the heires of the part of his mother ought to inherit, and not the heires of the part of the father. And if hee hath no heire on the part of the mother, then the Lord of whom the land is holden, shall have the land by Escheat. In the same manner it is, if lands descend to the sonne, of the part of the father, and hee entreth, and afterwards dies without issue, this Land shall descend to the heires on the part of the father, and not to the heires on the part of the mother. And if there bee no heire of the part of the father, the Lord of whom the Land is holden shall have the land by Escheat. And so see the diversitie, where the sonne purchaseth lands or tenements in Fee simple, and where hee commeth to them by descent on the part of his mother, or on the part of his father.
By this it appeareth that our Author divideth heires into heires of the part of the father; and into heires of the part of the mother. (a) And note it is an old and true Maxime in Law, that none shall inherit any lands as heire, but onely the bloud of the first Purchaser, for (*)refert à quo fiat perquisitum, As for example, Robert Coke taketh the daughter of Knightley to wife and purchaseth lands to him and to his heires, and by Knightley hath issue Edward, none of the bloud of the Knightleys though they be of the bloud of Edward shall inherit, albeit hee had no kindred but them, because they were not of the bloud of the first purchaser, viz. of Robert Coke.
(b) “they of his bloud on the fathers side.”
Here it is to be understood, that the father hath two immediate blouds in him, viz. the bloud of his father, and the bloud of his mother, both these blouds are of the part of the father. (c) And this made ancient Authors say, that if a man be seised of lands in the right of the wife, and is attainted of felony, and after hath issue, this issue should not inherit his mother, for that he could derive no bloud inheritable from the Father. And both these blouds of the part of the Father must bee spent | before the heire of the bloud of the part of the mother shall inherit, wherein ever the line of the male of the part of the father, (that is) the posteritie of such male, bee they male or female, (who ever in descents are preferred) must faile before the line of the mother shall inherit, (d) and the reason of all this is for that the bloud of the part of the father is more worthy, more neere in judgement of Law, than the bloud of the part of the mother.
“before any of the bloud on the mothers side.”
And it is to be observed, that the mother hath also two immediate blouds in her, (viz.) her fathers bloud, and her mothers bloud. Now to illustrate all this by example. Robert Fairefield Sonne of John Fairefield and Jane Sandie, take to wife Anne Boyes Daughter of John Boyes and Jane Bewpree, and hath Issue William Fairefield who purchaseth lands in fee. Here William Fairefield hath foure immediate blouds in him, two of the part of his father, viz. the bloud of the Fairefields, and the bloud of the Sandies, and two of the part of his mother; viz. the bloud of the Boyses, and the bloud of the Bewprees, and so in both cases upward in infinitum.
Now admit that William Fairefield die without issue, first the bloud of the part of his father, viz. of the Fairefields, and for want thereof the bloud of the Sandies (for both these are of the part of the father) if both these faile, then the heires of the part of the mother of William Fairefield shall inherit, viz. first the bloud of the Boyses, and for default thereof the bloud of the Bewprees.
It is necessarie to be knowne in what cases the Heire of the part of mother shall inherit, and where not. If a man be seised of lands as Heire of the part of his mother, and maketh a feoffment in fee, and taketh backe an estate to him and to his heires, this is a new purchase, and if hee dieth without issue, the heires of the part of the father shall first inherit. If a man so seised maketh a feoffment in fee upon condition, and die, the heire of the part of the father which is the heire at the Common Law shall enter for the condition broken, but the heire of part of the mother shall enter upon him, and enjoy the land. (m) A man so seised maketh a feoffment in fee reserving a rent to him and to his heires, this rent shall goe to the heires of the part of the father; but (n) if he had made a gift in taile, or a lease for life reserving a rent, the heire of the part of the mother shall have the reversion, and the rent also, as incident thereunto, shall passe with it; but the heire of the part of the mother shall not take advantage of a condition annexed to the same, because it is not incident to the reversion, nor can passe therewith. (o) If a man had been seised of a mannor as heire on the part of his mother, and before the Statute of Quia emptores terrarum, had made a feoffment in fee of parcell to hold of him by rent and service, albeit they be newly created, yet for that they are parcell of the mannor, they shall with the rest of the mannor descend to the heire of the part of the mother, quia multa transeunt cum universitate quae per se non transeunt. If a man hath a rent secke of the part of his mother, and the tenant of the land | granteth a distresse to him and his heires, and the Grantee dieth, the distresse shall goe with the rent to the heire of the part of the mother as incident or appurtenant to the rent, for now is the rent secke become a Rent charge.
(p) A man so seised as heire on the part of his mother maketh a Feoffment in Fee to the use of him and his heires, the use being a thing in trust and confidence shall insue the nature of the land, and shall descend to the heire on the part of the mother. (q) A man hath Seigniorie as heire of the part of his mother, and the Tenancie doth escheat, it shall goe to the heire of the part of the mother. If the heire of the part of the mother of land whereunto a Warrantie is annexed is impleaded and Vouche, and judgement is given against him, and for him to recover in value, and dieth before execution (r) the heire of the part of the mother shall sue execution to have in value against the Vouchee, for the effect ought to pursue the cause, and the recompence shall ensue the losse.
If a man giveth lands to a man, to have and to hold to him and his heires on the part of his mother, yet the heires of the part of the father shall inherit, for no man can institute a new kinde of inheritance not allowed by the Law, and the words (of the part of his mother) are void, as in the case that Littleton putteth this Chapter. If a man giveth lands to a man to him and his heires males, the Law rejecteth this word males, because there is no such kinde of inheritance, whereof you shall read more in his proper place.
If a man hath issue a sonne, and dieth, and the wife dieth also, lands are letten for life, the remainder to the heires of the wife, the sonne dieth without issue, the heires of the part of the father shall inherit, & not the heires of the part of the mother, because it vested in the son as a Purchaser. And the rule of Littleton holdeth as well in other kinde of Inheritances, as in Lands and Tenements. (f ) And therefore if there be Lord, feme mesne, and Tenant, and the Mesne binde her selfe and her heires by her Deed to the acquitall of the Tenant, the Mesne take husband, the Tenant by his Deed granteth to the husband and his heires, that hee or his heires shall not bee bound to acquitall, the husband & wife have issue, and die, this issue, being bound as heire to his mother, shall not take benefit of the said grant of discharge, for that extends to the heires of the part of the father, and not to the heires of the part of the mother, and therefore the heire of the part of the mother was bound to the Acquitall. And thus much for the better understanding of Littleton’s Cases concerning the heire of the part of the mother shall suffice.
“But if a man marrieth an inheretrix.”
Here there is another maxime, (t) That whensoever Lands doe descend from the part of the mother, the heires of the part of the father shall never inherit. And likewise when Lands descend from the part of the father, the heires of the part of the mother shall never inherit. Et sic paterna paternis, et è converso, materna maternis. For more manifestation hereof, and of that which hereafter shall be said touching Descents, see a Table in the end of this Chapter.
“shall have the land by Escheat”
(u) Escheat, Eschaeta is a word of art, and derived from the French word Eschear (id est) cadere, excidere or accidere, and signifieth properly when by accident the Lands fall to the Lord of whom they are holden, in which Case wee say the Fee is escheated. And therefore, of sonne, Escheats are called excadentiae, or teriae excadentiales (w)Dominus vero capitalis loco haeredis habetur quoties per defectum vel delictum extinguitur sanguis sui tenentis, loco haeredis & haberi poterit, nisi per modum donationis sit reversio cujusque tenementi. And Ockam (who wrote in the reigne of Henry the second) treating of Tenures of the King, saith, Porro eschaetae vulgo dicuntur, quae decedentibus hiis quae de Rege tenent, &c. cum non existit ratione sanguinis haeres ad fiscum relabuntur. (x) So as an Escheat doth happen two manner of wayes, aut per defectum sanguinis, i.e for default of heire, aut per delictum tenentis, i.e. for felony, and that is by judgement three manner of wayes, aut quia suspensus per collum, aut quia abjuravit regnum, aut quia utlegatus est. And therefore, they which are hanged by Martiall Law, in furore belli forfeit no Lands: and so in like Cases Escheats by the Civilians are called Caduca.
(y) The father is seised of Lands in fee holden of I.S. the son is attainted of high treason, the father dieth, the Land shall escheat to I.S. propter defectum sanguinis, for that the father dieth without heire. And the King cannot have the Land because the sonne never had any thing to forfeit. But the King shall have the Escheat of all the Lands whereof the person attainted of high treason was seised, of whomsoever they were holden.
(z) In an Appeale of Death or other felony, &c. processe is awarded against the Defendant and hanging the processe the Defendant conveyeth away the land, and after is outlawed, the conveyance is good and shall defeat the Lord of his Escheat, but if a man be indited of felony, and hanging the processe against him, hee conveyeth away the Land, and after is outlawed, the Conveyance shall not in that case prevent the Lord of his Escheat. And the reason of this diversitie is manifest: For in the case of the Appeale, the Writ containeth no time when | the felony was done, and therefore the Escheat can relate but to the Dutlawrie pronounced. But the inditement containeth the time when the felony was committed, and therefore the Escheat upon the Outlawrie shall relate to that time. Which cases I have added, to the end the Student may conceive, that the observation of writs, Inditements, Processe, Judgements, and other Entries, doth conduce much to the understanding of the right reason of the Law.
Of this word (Eschaeta) here used by our Author, commeth (a)Eschaetor, an ancient Officer so called, because his office is properly to looke to Escheats, Wardships, and other casualties belonging to the Crowne. In ancient time there were but two Escheators in England, the one on this side of Trent, and the other beyond Trent, at which time they had Subescheators. But in the reigne of Edward the second, the Offices were divided and severall Escheators made in everie Countie for life, &c. and so continued untill the reigne of Edward the third. And afterwards by the statute of 14 Edw. 3. it to enacted by authoritie of Parliament, that there should be as many Escheators assigned, as when king Edward the third came to the Crowne, and that was one in every Countie, and that no Escheator should tarrie in his office above a yeere, and by another Statute to be in office but once in three yeeres, the Lord Treasurer nameth him.
And hereof also commeth Eschaetria, which signifieth the Escheatership, or the office of the Escheater. But now let us heare what our Author will further say unto us.
“And so see the diversitie.”
This kinde of speech is often used by our Author, and doth ever import matter of excellent observation, which you may finde in the Sections noted in the margent.
And it is to be well observed, that our Author saith, Sil nad ascun heire, &c. la terre eschaetera. In which words is implyed a diversitie (as to the Escheat) between Fee simple absolute, which a naturall body hath, and Feesimple absolute which a body politique or incorporate hath. (b) For if land holden of I. S. be given to an Abbot and his Successors: In this case if the Abbot and all the Convent die, so that the body politique is dissolved, the Donor shall have againe this land, and not the Lord by Escheat. And so if land be given in Fee simple to a Deane and Chapter, or to a Major and Commonaltie, and to their Successors, and after such body politique or incorporate is dissolved, the Donor shall have againe the land, and not the Lord by Escheat. And the reason and cause of this diversitie is, for that in the case of a body politique or incorporate the Fee simple is vested in their politique or incorporate capacitie created by the policie of man, and therefore the Law doth annex a condition in Law to everie such gift and grant; That if such body politique or incorporate be dissolved, that the Donor or Grantor shall re-enter, for that the cause of the gift or grant faileth, but no such condition is annexed to the estate in Fee simple vested in any man in his naturall capacitie, but in case where the Donor or Feoffor reserveth to him a Tenure, and then the Law doth imply a Condition in Law by way of Escheat. Also (as hath been said) no Writ of Escheat lyeth but in the three cases aforesaid, and not where a body politique or incorporate is dissolved.
Also if there bee three brethren, and the middle brother purchaseth lands in Fee simple, and dye without issue, the elder brother shall have the Land by descent, and not the younger, &c. And also if there be three brethren, and the youngest purchase lands in Fee simple, & die without issue, the eldest brother shall have the land by descent & not the middle, for that the eldest is most worthy of bloud.
Now commeth our Author to the descent between brethren, which hee purposely omitted before. Discent, descensus commeth of the Latine word descendo, and, in the legall sense, it signifieth, when lands doe by right of bloud fall unto any after the death of his Ancestors: or a descent is a meanes whereby one doth derive him title to certaine lands, as heire to some of his Ancestors. And of this, and of that which hath beene spoken doth arise another division of estates in fee simple, viz. every man that hath a lawful estate in fee simple, hath it either by descent, or purchase.
| “The eldest is most worthy of bloud.”
It is a maxime in Law that the next of the worthiest bloud shall ever inherit, as the male and all descendant from him before the female, and the female of the part of the father before the male or female of the part of the mother, &c. because the female of the part of the father is of the worthiest bloud. (c) And therefore among the males the eldest brother and his posteritie shall inherit lands in Fee simple, as heire before any younger brother, or any descending from him, because (as Littleton saith) hee is pluis digne de sanke. Quod prius est dignius est, and qui prior est tempore prior est jure. Si quis plures filios habuerit, jus proprietatis primo descendit ad primogenitum, eò quòd inventus est primo in rerum naturâ. In King Alfreds time Knights fees descended to the eldest sonne, for that by division of them between males the defence of the Realme might be weakened, but in those dayes Socage fee was divided betweene the heires males, and there with agreeth Glanvill.Cùm quis haerēditatem habens moriatur, &c. si plures reliquerit filios, tunc distinguitur utrùm ille fuerit miles, sive per feodum militare tenens, aut liber Sockmannus, quia si miles fuerit aut per militiam tenens, tunc secundum jus regni Angliae primogenitus filius patri succedit in toto, &c. si verò fuerit liber Sockmannus, tunc quidem dividetur haereditas inter omnes filios, &c. But hereof more shall be said hereafter in his proper place.
Also it is to bee understood, that none shall have land of Fee simple by descent as heire to any man, unlesse hee be his heire of the whole bloud, for if a man hath issue two sonnes by divers venters, and the elder purchase lands in Fee simple, and dye without issue, the younger brother shall not have the land, but the uncle of the elder brother, of some other his next cosin shall have the same, because the younger brother is but of halfe bloud to the elder.
No man can be heire to a Fee simple by the Common Law, (d) but hee that hath sanguinem duplicatum, the whole bloud, that is, both of the father and of the mother, so as the halfe bloud is no bloud inheritable by descent, because that hee that is but of the halfe bloud cannot be a compleat heire, for that hee hath not the whole and compleat bloud, and the Law in descents in Fee simple doth respect that which is compleat and perfect. And this maxime doth not onely hold where lands (whereof Littleton here speaketh) are claimed or demanded as heire, (e) but also in case of appeale of death: for if one brother be slaine, the other brother of the halfe bloud shall never have an appeale (albeit hee shall recover nothing therein either in the realtie or personaltie) because in the eye of the Law hee is not heire to him. Also this rule extends to a warrantie, as our Author himselfe elsewhere holdeth.
And if a man hath issue a son and a daughter by one venter, and a son by another venter, & the son of the first venter purchase lands in fee and dye without issue, the sister shal have the land by descent as heire to her brother, & not the younger brother, for that the sister is the whole bloud of her elder brother.
This is put for an example to illustrate that which hath | beenesaid, and needeth no explanation. And herewith agreeth Britton.
And also where a man is seised of lands in Fee simple, & hath issue a sonne and daughter by one venter, and a son by another venter, and dye, and the eldest son enter, and dye without issue, the daughter shall have the land, & not the younger son, yet the younger son is heire to the father but not to his brother, but if the elder sonne doth not enter into the land after the death of his father but dye before any entry made by him then the younger brother may enter & shall have the land as heire to his father: but where the elder son in the case aforesaid enters after the death of his father, & hath possession there the sister shall have the land, Because Possessio fratris de feodo simplici facit sororem esse haeredem. But if there be 2. brothers by divers venters, and the elder is seised of land in fee, & die without issue, & his uncle enter as next heire to him, who also dye without issue, now the younger brother may have the land as heire to the uncle, for that he is of the whole bloud to him, albeit hee be but of the halfe bloud to his elder brother.
“seised of lands in Fee simple,”
These words exclude a seisin in Fee taile, albeit he hath a Fee simple expectant. (f ) And therefore if Lands bee given to a man and his wife, and to the heires of their two bodies, the remainder to the heires of the husband, and they have issue a sonne, and the wife dyeth, and hee taketh another wife, and hath issue a sonne, the father dieth, the eldest sonne entreth, and dyeth without issue, the second brother of the halfe bloud shall inherit, because the eldest sonne by his entrie was not actually seised of the fee simple, being expectant but onely of the estate taile. And the rule is, that Possessio fratris de feodo simplici facit sororem esse haeredem, and here the eldest sonne is not possessed of the Fee simple but of the estate taile. And where Littleton speaketh onely of Lands (g) yet there shall bee Possessio fratris of an use, of a seigniorie, a rent, an advowson and of other hereditaments.
“and the eldest son enter,”
(h) These words are materially added when the father dies seised of lands in fee simple, for if the eldest sonne doth not in that case enter, then without question the youngest | son shall be heire, because as it hath beene said before regularly hee must make himselfe heire to him that was last actually seised (or to the purchaser) and that was to the father where the eldest sonne did not enter. And therefore Littleton addeth that the son is heire to the father. (i) But when the eldest sonne in this case doth enter, then cannot the youngest sonne being of the halfe bloud bee heire to the eldest, but the land shalldescend to the sister of the whole bloud. Yet in many cases albeit the sonne doth not enter into lands descended in Fee simple, the sister of the whole bloud shall inherit, & in some cases where the eldest sonne doth enter, yet the younger brother of the halfe bloud shall be heire.
(k) If the father maketh a Lease for yeares, & the Lessee entreth & dieth, the eldest son dieth during the tearme before entrie or receipt of rent, the younger sonne of the halfe bloud shall not inherit but the sister, because the possession of the Lessee for yeares, is the possession of the eldest son, so as he is actually seised of the Fee simple, and consequently the sister of the whole bloud is to bee heire. The same Law it is if the lands be holden by Knights service, and the eldest sonne is within age, and the Gardian entreth into the lands. And so it is if the Gardian in Socage enter.
But in the case aforesaid, if the father make a lease for life or a gift in taile, and dieth, and the eldest sonne dieth in the life of Tenant for life or Tenant in taile, the younger brother of the halfe bloud shall inherit, because the Tenant for life or Tenant in taile is seised of the Freehold, and the eldest sonne had nothing but reversion expectant upon that Freehold or estate taile, and therefore the youngest sonne shall inherit the land as heire to his father, who was last seised of the actuall Freehold. And albeit a rent had beene reserved upon the lease for life, and the eldest sonne had received the rent and died, yet it is holden by some that the younger brother shall inherit because the seisin of the rent is no actuall seisin of the Freehold of the land. But 35. Ass. pl. 2. seemeth to the contrarie, because the rent, issueth out of the land and is in lieu thereof, wherein the onely question is, whether such a seisin of the rent be such an actuall seisin of the land in the eldest sonne as the sister may in a Writ of right make herselfe heire of this land to her brother. But it is cleere that (l) if there be a bastard eigne, and mulier puisne, and the father maketh a Lease for life or a gift in taile be reserving a rent and dye, and the bastard receive the rent and dye, this shall barre the mulier, for the reason of that standeth upon another maxime as shall manifestly appeare in his apt place, Sect. 399.
“seised of lands,”
(m) But in this case if the eldest sonne doth enter and get an actuall possession of the Fee simple, yet if the wife of the father be indowed of the third part and the eldest sonne dyeth, the younger brother shall have the reversion of this third part notwithstanding the elder brothers entrie, because that his actuall seisin which hee got thereby was by the endowment defeated. But if the eldest sonne had made a lease for life, and the Lessee has endowed the wife of the father, and tenant in dower had died, the daughter should have had the reversion, because the reversion was changed and altered by the Lease for life, and the reversion is now expectant on a new estate for life.
Hereupon the question groweth, whether if the father be seised of divers severall parcels of lands in one Countie, and after the death of the father the sonne entreth into one parcell generally, and before any actuall entrie into the other dieth, this generall entrie into part shall vest in him an actuall seisin in the whole, so as the sister shall inherit the whole. And this is a Quaere in 21. Hen. 7. 33. a.
| And some doe take a diversitie when an entrie shall vest, or devest an estate, that there must be severall entries into the severall parcels, but where the possession is in no man, but the Freehold in Law is in the heire that entreth, there the generall entrie into one part reduceth all into his actuall possession. And therefore if the Lord entreth into a parcell generally for a Mortmaine, or the Feoffor for a condition broken, or the Disseisee into parcell generally, the entrie shall not vest nor devest in these or like cases, but for that parcell. But when a man dies seised of divers parcels in possession, and the Freehold in Law is by a Law cast upon the heire, and the possession in no man, there the entrie into parcell generally seemeth to vest the actuall possession in him in the whole. But if his entrie in that case be speciall, viz. that he enter onely into that parcell and into no more, there it reduceth that parcell only into actuall possession.
“man is seised of lands”
What then is the Law of a Rent, Advowson, or such things that lye in grant? (g) If a Rent, or an Advowson doe descend to the eldest sonne, and hee dieth before he hath seisin of the Rent, or present to the Church, the Rent or Advowson shall descend to the youngest sonne, for that he must makehimselfe heire to his father, as hath been oftentimes said before. The like Law is of Offices, Courts, Liberties, Franchises, Commons of inheritance, and such like. (h) And this case differeth from the case of the Tenant by the Courtesie, for there if the wife dieth before the rent day, or that the Church become voyd, because there was no laches or default in him, nor possibilitie to get seisin, the Law in respect of the issue begotten by him will give him an estate by the Courtesie of England. But the case of the descent to the youngest sonne standeth upon another reason, viz. to make himselfe heire to him that was last actually seised, as hath beene said.
“in Fee simple”
(i) For halfe bloud is not respected in estates in taile, because that the issues doe claime in by descent, per formam Doni, and the issue in taile is ever of the whole bloud to the Donee.
(k) “Possessio fratris de Feodo simplici facit sororem esse haeredem.”
Hereupon foure things are to bee observed, everie word almost being operative and materiall. First, That the brother must be inactuall possession: For Possessio est quasi pedis positio. Secondly, De feodo simplici, exclude estates in taile. Thirdly, Facit sororem esse haeredem. So as (l)Soror est haeres facta, and therefore some act must be done to make her heire, and the younger sonne is haeres natus, (m) if no act be done to the contrarie. And albeit the words be Facit sororem esse haeredem, yet this doth extend to the issue of the sister, &c. who shall inherit before the younger brother. Fourthly, Of Dignities whereof no other possession can be had but such as descend (as to be a Duke, Marquesse, Earle, Viscount, or Baron) to a man and his heires, there can be no possession of the brother to make the sister to inherit, but the younger brother being heire (as Littleton saith) to the father, shall inherit the Dignitie inherent to the bloud, as heire to him that was first created noble.
And you shall understand that concerning Descents there is a Law, parcell of the Lawes of England, called Jus Coronae, and differeth in many things, from the generall Law concerning the subject. As for example, The King in any suit for any thing that pertaines to the Crowne shall not shew in certaine his cosinage as a subject shall doe, or as be himselfe shall doe for things touching his Dutchie. (n) And in the case of the King, if he hath issue a sonne, and a daughter by one venter, and a sonne by another venter, and purchaseth lands and dieth, and the eldest son enter and dieth without issue, the daughter shall not inherit these lands, not any other Fee simple lands of the Crowne, but the younger brother shall have them. Wherein note that neither possessio fratris doth hold of lands of the possessions of the Crowne, nor halfe bloud is no impediment to the descent of the lands of the Crowne, as it fell out in experience after the decease of King Edward the sixth to the Queene Marie, and from Queene Marie to Queene Elizabeth, both which here were of the halfe bloud, and yet inherited not onely the Lands which King Edward or Queene Marie purchased, but the ancient Lands parcell of the Crowne also.
A man that is King by descent of the part of his mother, purchase lands to him and his heires and dye without issue, this land shall descend to the heire of the part of the mother, but in the case of a subject, the heire of the part of the father shall have them.
So King Henry the eighth purchased lands to him and his heires, and died having issue two daughters, the Lady Mary, and the Lady Elizabeth, after the decease of King Edward, the eldest daughter Queene Mary did inherit only, all his lands in Fee simple. For the eldest daughter, or sister of a King shall inherit all his Fee simple lands. So it is if the King purchaseth Lands of the custome of Gavelkinde, and dye having issue divers sons, the eldest son shall onely inherit these lands. And the reason of all these cases is, for that the qualitie of the person doth in these andmany other like cases alter the descent, so as, all the Lands and possessions whereof the King is seised in jure Coronae, shall secundum jus Coronae, attend upon and follow the Crowne, and therefore to whomsoever the Crowne descend, those Lands and possessions descend also, for the Crowne and the Lands whereof the King is seised in jure Coronae, are concomitantia. If the | right heire of the Crowne be attained of treason, yet shall the Crowne descend to him, and eo instante (without any other reversall) the attainder is utterly avoided, as it fell out in the case of Henry the seventh. (o) And if the King purchase lands to him and his heires, he is seised thereof in jure Coronae, è fortiori, when he purchases land to him his heires and successours.
But hereof this little taste shall suffice.
And it is to wit, that this word (inheritance) is not only intended where a man hath Lands or Tenements by descent of inheritage, but also everie Fee simple or taile which a man hath by his purchase may be said an inheritance, because his heires may inherit him. For in a Writ of right which a man bringeth of land that was of his owne purchase, the Writ shall say, Quam clamat esse jus & haereditatem suam. And so shall it be said in divers other Writs which a man or woman bringeth of his owne purchase, as appeares by the Register.
“And it is to wit”
This kind of speer is used twice in this Chapter, and oftentimes by our Author in all his three Bookes, and ever teacheth us some rule of Law, or generall or sure leading point, as you shall perceive by reading, and observing of the same, which for the ease of the studious Reader I have observed.
“Quam clamat esse jus & haereditatem suam.”
(a) Here our Author declareth the right signification of this word (inheritance.) And true it is, that in the Writ of right Patent, &c. Quando Dominus remittit Curiam suam, The words of the Writ be, Quam clamat esse jus & haereditatem suam. And in the Praecipe in capite, in a Cui in vita, (b) when the Defendant claimeth by purchase, the Writ is Quam clamat esse jus & haereditatem suam. And with Littleton agreeth the Register, fol. 4. & 232. and the Booke in 49 Edw. 3. 22. against sodaine opinions 7. Hen. 4. 5. 10. Hen. 6.9. 39. Hen. 6.38. Pl. Com. Wimbethes case 47. And yet in 7. Hen. 4.5. which is the Booke of the greatest weight, Sir. William Thirning Chiefe Justice of the Common Bench (as it seemeth doubting of it) went into the Chancerie to enquire of the Chancerie men the forme of the Writ in that case, and they said that the forme was both the one way and the other, so as thereby the opinion of Littleton is confirmed, and the Booke in6. Edw.3.fol.30.is notable, for there in an Action of waste the Plaintife supposed, that the Defendant did hold de haereditate sua, and it is ruled, that albeit the Plaintife purchased the reversion, yet the Writ should serve. And there it is said, It hath beene seene, that in a Cui in vita, the Writ was, which the Demandant claimed as her right and inheritance, when it was her purchase. And so this point wherein there might seeme some contrarietie in bookes is manifestly cleared. But in the Statute of West. 2. cap. 5.de haereditate uxorum by construction of the whole Statute is taken onely for the wives inheritance by descent, and not by purchase, as appeareth in 1. Edw. 2. tit. Quare imped. 43. 35. Hen. 6. 54. F. N. B. 34.b.
There be some that have an inheritance (c) and have it neither by descent, nor properly by purchase, but by Creation, as when the King doth create any man a Duke, a Marquesse, Earle, Viscount, or Baron to him and his heires, or to the heires males of his bodie, &c. hee hath an inheritance therein by Creation. A man may have an inheritance in title of Nobilitie and Dignitie three manner of wayes, that is to say, by Creation, by Descent, and by | Prescription. By Creation two manner of ordinarie wayes (for I will not speake of a Creation by a Parliament) by Writ, and by Letters Patents. Creation by Writ is the ancienter way, and here it is to be observed; that a man shall gaine an inheritance by Writ. King Richard the second created John Beauchampe de Holte Baron of Kedermister by his Letters Patents, bearing date the 10. of October, anno regni sui II. before whom there was never any Baron created by Letters Patents, but by Writ. And it is to bee observed, that if hee bee generally called by Writ to the Parliament, he hath a Fee simple in the Barony without any words of inheritance. But if he be created by Letters Patents, the state of inheritance must be limited by apt words, or else the grant is void. If a man be called by Writ to the Parliament, and the Writ is delivered unto him, and he dieth before he commeth and sits in Parliament, whether he was a Baron or no? And it is to be answered that he was no Baron, for the direction and deliverie of the Writ to him maketh not him Noble; for the better understanding whereof it is to be knowne that the words of the Writ in that case are, Rex, &c. E. B. de D. Chivalier salutem. Quia de advisamento & assensu concilii nostri pro quibusdam arduis & urgentibus negotiis statum & defensionem regni nostri Angliae, &c. concernentibus quoddam Parliamentum nostrum apud Civitatem Westm. à 21. Octob. proxim. futuro teneri ordinavimus, & ibid. vobiscum & cum Praelatis, Magnatibus & Proceribus dicti regni nostri colloquium habere & tractatum, vobis in fide & ligeancia quibus nobis tenemini firmiter injungendo mandamus, quod consideratis dictorum negotiorum arduitate, & periculis imminentibus cessante excusatione quacunque, dictis die & loco personaliter intersitis nobiscum & cum Praelatis, Magnatibus, & Proceribus supradictis, super dictis negotiis tractatur’ vestrumque consilium impensur’, &c. , And this Writ hath no operation or effect untill hee sit in Parliament, and thereby his bloud is ennobled to him and his heires lineall, and thereupon a Baron is called a Peere of Parliament. (d) And if issue be joyned in any action, whether he be a Baron, &c. or no, it shall not be tried by Jurie, but by the Record of Parliament, which could not appeare unlesse hee were of the Parliament. Therefore a Duke, Earle, &c. of another Kingdome, are not to bee sued by those names here, for that they are not Peeres of our Parliament. And albeit the Creation by Writ is the ancienter, yet the Creation by Letters Patents is the surer, for hee may bee sufficiently created by Letters Patents, and made Noble, albeit hee never sit in Parliament.
(e) And it is to be observed that Nobilitie may bee granted for terme of life, by act in Law without any actuall Creation; as if a Duke take a wife, by the intermarriage shee is a Duchesse in Law, and so of a Marquesse, an Earle, and the rest, and in some other case. And there is a diversitie betweene a woman that is Noble by Descent, and a woman that is noble by marriage. (f) For if a woman that is Noble by Descent, marrie one that is under the degree of Nobilitie, yet remaineth Noble still; but if shee gaine it by marriage, shee loseth it, if shee marrie under the degree of Nobilitie, and so is the rule to be understood, Si mulier nobilis nupserit ignobili desinit esse nobilis. (g) But if a Dutchesse by marriage marrieth a Baron of the Realme she remaineth a Dutchesse and loseth not her name, because her husband is Noble, &c de caeteris.
And as an estate for life may be gained by marriage, so may the King create either man or woman Noble for life (h) but not for yeares, because then it might goe to Executors or Administrators. The true division of persons is, that everie man is either of Nobilitie, that is, a Lord of Parliament of the upper House, or under the degree of Nobilitie, amongst the Commons, as Knights, Esquires, Citizens and Burgesses of the lower House of Parliament, commonly called House of Commons, and he that is not of the Nobilitie is by intendment of Law among the Commons.
“as appeares by the Register”
Which booke in the Statute of West. 2. ca. 24. is called Registrumde Cancellaria, because it containeth the formes of Writs at the Common Law that issue out of the Chancerie, tanquam ex officina justiciae. There is a Register of originall Writs, and a Register of judiciall Writs, but when it is spoken generally of the Register it is meant of the Register originall. For the antiquitie and excellencie of this Booke, see in my Preface to the eighth part of my Commentaries. This excellent Booke our Author voucheth divers times in these Bookes, and so doth he divers other Authorities in Law of severall kindes, but with this observation, that he citeth no Authoritie, but when the case is rare or may seeme doubtfull, which appeareth in this, that he putteth no Case in all his three Bookes but hath warrant of good Authoritie in Law. For he knew well the rule, that perspicua vera non sunt probanda. And the like observation its made of Justice Firzherbert in his Booke of Natura Brevium, that he never citeth Authoritie, but when the Case is rare or was doubtfull to him. The Authorities which our Author hath cited in his three Bookes I have collected.
| And of such things whereof a man may have a Manuell occupation, possession or receipt, as of lands, Tenements, Rents, and such like, there a man shall say in his Count Countant and Plea Pleadant, that such a one was seised in his demesne as of fee, but of such things which do not lye in such Manuall occupation, &c. as of an Advowson of a Church and such like, there he shall say, that hee was seized as of fee, and not in his Demesne as of fee. And in Latine it is in one Case, Quod talis seisitus fuit in dominico suo ut de feodo, and in the other Case, Quod talis seisitus fuit, &c. ut de feodo.
“In his Count Countant.”
In Count Countant. Count, i.e. narratio commeth of the French word Conte which in Latine is Narratio, and is vulgarly called a Declaration. The originall writ is according to his name Breve, briefe & short, but the Count which the Plaintife or Demandant make is more narrative & spacious and certaine both in matter & in circumstance of time and place, to the end the defendant may be compelled to make a more direct answer; so as the writ may be compared to Logicke and the Count to Rhetoricke, and it is that which the Civilians call a Libell. And in that ancient booke of the Mirror of Justices, Lib. 2. cap. des Loiers, Contors are Serjants skilfull in Law, so named of the Count as of the principall part, and in Wil. 2. ca.29. hee is called Serjant Counter.
“in his Plea Pleadant.”
Placitum. Here Littleton teacheth good pleading in this point, of which in his third Booke and Chapter of Confirmation, Sect. 534. hee thus saith, Et saches mon sits que est un des pluis honorables, laudables, & profitable choses en nostreley, de auer le science de bien pleader en actions reals & personels, & pur ceo, ieo toy counsaile especialment de metteraton courage, & cure de ceo apprender. And for this cause this Word Placitum is derived à placendo, quia bene placitare super omnia placet, and it is not as some have said, so called per Antiphrasin, quia non placet.
Seisitus commeth of the French word seisin, i. possessio, saving that in the Common Law seised, or seisin is properly applyed to Freehold, and possessed or possession properly to goods and chattels; although sometime the one is used in stead of the other.
“in his demesne as of fee, In Dominico suo ut in feodo.”
Dominicum is not onely that inheritance, wherein a man hath proper dominion or ownership, as it is distinguished from the lands which another doth hold of him in service, but that which is manually occupied, manured, and possessed, for the necessarie sustentation, maintenance and supportation of the Lord and his houshold, and savoureth de domo, of the house, either ad mensam, for his or their board and sustentation, or manually received (as Rents) for bearing and defraying of necessarie charges publike or private. Of these (saith our Author) he should plead, that he is seised in dominico suo ut de feodo, i.e. de feodo dominicali, seu terrâ dominicali, seu redditu dominicali, which is as much to say as Demeyne or Demaine, of the hand, i. manured by the hand, or received by the hand, and therefore he calleth it manuall occupation, possession or receipt. And in Domesday Demeane land is called Inland, as for example, 4. bovatas terrae de Inland, & 10. bovatas in servitio.
“in such Manuall occupation, &c.”
There is nothing in our Author but is worthy | of observation. Here is the first (&c.) and there is no (&c.) in all his three Bookes (there being as you shall perceive verie many) but it is for two purposes. First it doth imply some other necessarie matter. Secondly, that the Student may together with that which our Author hath said, inquire what authorities there be in Law that treat of that matter, which will worke three notable effects: First, it will make him understand our Author the better: Secondly, it will exceedingly adde to the Readers invention. And lastly, it will fasten the matter more surely in his memorie, for which purpose I have for his case in the beginning set downe in these Institutes, the effect of some of the principall authorities in Law, as I conceive them concerning the same. In this place the (&c.) implyeth possession or receipt, and such other matter as appeareth by my notes in this Section. As for the Authorities of Law, you shall finde the effect of them in this Section, and the like of the rest of the (&c.) which you shall finde in the Sections hereafter mentioned, omitting those (for avoyding of tediousnesse) that either are apparent, or which are explained in some other places, viz. Sect. 20. 48. 102. 108. 120. 125. 136. 137. 146. 149. 154. 164. 166. 167. 168. 177. 179. 183. 184. 194. 200. 202. 210. 211. 217. 220. 226. 233. 240. 242. 244. 245. 248. 262. 264. 269. 270. 271. 279. 320. 322. 323. 325. 326. 327. 329. 330. 335. 336. 341. 347. 348. 349. 350. 352. 355. 356. 359. 364. 365. 374. 375. 377. 381. 384. 389. 393. 395. 397. 399. 401. 402. 410. 417. 428. 433. 447. 449. 464. 470. 471. 477. 483. 489. 500. 501. 522. 532. 552. 553. 556. 558. 562. 578. 591. 592. 593. 594. 603. 613. 624. 625. 630. 632. 634. 637. 638. 648. 659. 660. 661. 669. 687. 693. 700. 718. 745. 748. 749. All which I have observed and quoted here once for all, for ease of the studious Reader.
“ut de feodo,”
Where (ut) is not by way of similitude, but to be understood positively that he is seised in fee. And so it is where one pleads a descent to one ut filio & haeredi, that is, to Io.S. that is sonne and heire, & sic de caeteris, where (ut) denotat ipsam veritatem.
“as of an Advowson”
Of an Advowson (i) wherein a man hath as absolute ownership and propertie as hee hath in Lands or Rents, yet hee shall not plead, that hee is seised in Dominico suo ut feodo, because that inheritance, favouring not de domo, cannot either serve for the sussentation of him and his houshold, nor any thing can bee received for the same for defraying of charges. And therefore hee cannot say, that hee is seised thereof in dominico suo de feodo, whereby it appeareth how the Common Law doth detest Simony, and all corrupt bargaines for presentations to any Benefice, but that (k)idonea persona for the discharge of the Cure should be presented freely without expectation of any thing; nay, so cautious is the Common Law in this point that the Pl. in a Quare impedit should recover no damages for the losse of his presentation untill the Statute of West 2.cap.5. And that is the reason that Gardian in Socage (l) shall not present to an Advowson, because hee can take nothing for it, and by consequent hee cannot account for it. And by the Law hee can meddle with nothing that hee cannot account for it. (m) And in a Writ of right of Advowson, the Patron shall not alleage the explees or taking of the profits in himselfe, but in his Incumbent. And hereby the old Bookes shall bee the better understood, viz. Bracton, lib. 4. tract.3. cap. nu. 5. Est autem dominicum quod quis habet ad mensam, & proprie, sicut sunt Boordlands Anglice. And Fleta lib. 5.ca.5. Est autem dominicum proprie terra ad mensam assignata. Dominicum etiam dicitur ad differentiam ejus quod tenetur in servitio. But of an Advowson and such like hee shall plead, that hee is seised de advocatione ut de feodo & jure.
Advocatio, signifying an advowing or taking into protection, is as much as jus patronatus. Sir William Herle in 7. Edw. 3. fol. 4. saith, that it is not long past, that a man did known what an Advowson was, but when a man would grant an Advowson hee granted, Ecclesiam the Church, and thereby the Advowson passed, Vide 45. Edw. 3. 5. But surely the word is of greater antiquitie, for in the Register there is an originall Writ de recto Advocationis, and in the originall Writ of Assise de darreine presentment the Patron is callen Advocatus. (n) Vide Wil. 2. ca.5. And so doth (o) Bracton call him. Advocatus autem dici poterit ille ad quem pertinet jus advocationis alicujus, ut ad Ecclesiam praesentet nomine proprio & non alieno. And (p) Fleta lib. 5. cap.14. agreeth herewith almost totidem verbis: Advocatus est ad quem pertinet jus advocationis alterius Ecclesiae, ut ad Ecclesiam nomine proprio non alieno possit praesentare. And (q) Britton cap. 92. The Patron is called Avow, and the Patrons are called Advocati, for that they bee either Founders, or Maintainers, or Benefactors of the Church either by building, donation, or increasing of it, in which respect they were also called Patroni, and the Advowson jus patronatus.
And it is to be understood that there is a great (r) diversitie inter advocationem medietatis Ecclesiae, &c. & medietatem advocationis Ecclesiae. And of their severall remedies for the same, For the Advowson of the moytie is when there be severall Patrons, and two severall Incumbents in one Church, the one of the one moytie thereof, and the other of the other moytie, and one | part as well of the Church as of the Towne allotted to the one, and the other part thereof to the other, and in that case each Patron if he be disturbed shall have a Quare impedit, quod permittat ipsum praesentare idoneam personam ad medietatem Ecclesiae.
But if there be two Coparceners, and they do agree to present by turne, each of them in truth hath but a moytie of the Church, but for that there is but one Incumbent, if either of them bee disturbed she shall have a Quare impedit, &c. praesentare idoneam personam ad Ecclesiam; for that there is but one Church and one Incumbent, and so of the like. But in (s) the said case of the Coparceners one of them shall have a writ of right of Advowson de medietate advocationis, for in truth she hath but a right to a moytie, but in the other case where there be two Patrons and two Incumbents in one Church, each of them shall have a writ of right of Advowson De advocatione medietatis.
And as there may (as hath beene said) be two severall Parsons in one Church, so there may be two that may make but one parson in a Church. (t) Britton saith, Si ascun Esglise soir done a divers persons per un sole avowe nul ne sepura pleadre per assise de juris utrum ne nul estre implede sauns lautre, &c. And therewith agreeth Fleta. (u)Item licet aliqua Ecclesia divisa fuerit inter duos, sive bona sua habeant communia sive separata, dum tamen unicum habeant advocatum nullus eorum sine alio agere poterit vel implacitari. And Fitzh.saith that two Prebendaries may be one Parson of a Church, who shall joyne in a Juris utrum, so as one Rectorie may be annexed to two severall Prebends, and both of them make but one Parson. But where one is Parson of the one moytie of a Church, and another of the other moytie, as hath been said, there one of them shall have a juris utrum against the other, and in the Writ shall name him persona medietatis Ecclesiae, &c. But for avoyding of suspicion of curiositie if we should proceed any further herein, we will attend what Littleton will further teach as.
And note that a man cannot have a more large or greater estate of inheritance than Fee simple.
This doth extend as well to Fee simples conditionall & qualified as to Fee simples pure and absolute. For our Author, speaketh here of the amplenesse and greatness of the estate, and not of the perdurableness of the same. And he that hath a Fee simple conditionall or qualified, hath as ample and great an estate as hee that hath a Fee simple absolute, so as the diversitie apeareth between the quantitie and qualitie of the estate.
From this state in Fee simple, estates in taile, and all other particular estates are derived, and therefore worthily our Author beginneth his first Book with Tenant in Fee simple, for à principalioribus seu dignioribus est inchoandum.
“cannot have a more large or greater estate.”
For this cause two (a) Fee simples absolute cannot be of one and the selfesame land. If the King make a gift in taile, and the Donee is attainted of treason, in this case the King hath not two simples in him, viz. the ancient reversion in Fee, & A Fee simple determinable upon the dying without issue of Tenant in taile, but both of them are consolidated and conjoyned together, and so it is if such a Tenant in taile both convey the land to the King his heires and successors, the King hath but one estate in Fee simple united in him, and the Kings grant of one estate is good, and so was it adjudged in the Court of Common Pleas. And yet in severall persons by act in Law, a reversion may bee in Fee simple in one, and a Fee simple determinable in another by matter Ex post facto; as if a gift in taile made to a Villeine, and the Lord enter, the Lord hath a Fee simple qualified, and the Donor a reverssion in fee, but if the Lord infeoffe the Donor, now both Fee simples are united, and he hath but one Fee simple in him: but one Fee simple cannot depend upon another by the grant of the partie, as if lands be given to A. so long as B. hath heires of his body the remainder over in fee, the remainder is voyd.
Also purchase is called the possession of lands or tenements that a man hath by his deed or agreement, unto which possession hee commeth not by title of descent from any of his Ancestors, or of his Cousins, but by his owne deed.
Purchase in Latine is either acquisitum, of the verb acquiro, for so I find it in the originall Register 243. In terris vel tenementis quae | viri & mulieres conjunctim acquisiverunt, &c. Bracton, calleth it perquisitum; and by (b) Glanvill it is called quaestus or perquisitum.
A purchase is alwayes intended by title, and most properly by some kinde of conveyance either for money or some other consideration, or freely of gift: for that is in Law also a purchase. But a descent, because it commeth meerely by act of Law, is not said to be a purchase, and accordingly the makers of the act of Parliament in I. Hen. 5. ca. 5 speaketh of them that have lands or tenements by purchase or descent of inheritance. And so it is of an Escheat or the like, because the inheritance is cast upon, or a title vested in the Lord by act in Law and not by his owne deed or agreement, as our Author here saith, Like Law of the state of Tenant by the Courtesie, Tenant in Dower or the like. But such as attaine to lands by meere injurie and wrong, as bydisseisin, intrusion, abatement, usurpation, &c. cannot be said to come in by purchase, no more than Robbery, Burglary, Pyracy or the like can justly be termed purchase.
If a Nobleman, Knight, Esquire, &c. be burried in a Church, and have his Coat armor and Pennions with his armes, and such other ensignes of honour as belong to his degree or order set up in the Church, or if a grave stone or tombe be laid or made, &c. for a monument of him. (c) In this case albeit the freehold of the Church be in the Parson, and that these be annexed to the freehold, yet cannot the Parson or any take them or deface them, but he is subject to an action to the heire, and his heires in the honour and memorie of whose Ancestor they were set up. And so it was holden, Mic. 10. Ja. And here with agreeth the Lawes (d) in other Countries. Note this kinde of inheritance: and some hold that the wife or Executors that first set them up may have an action in that case against those that deface them in their time. And note that in some places chattels as heire-loomes, (as the best bed, table, pot, pan, cart, and other dead chattels movable) may goe to the heire, and the heire in that case may have an action so; for them at the Common Law, and shall not sue for them in the Ecclesiasticall Court, but the heire-loome is due by Custome and not by the Common Law. And the (e) ancient jewels of the Crowne are heire-loomes and shall descend to the next Successor, and are not devisable by testament.
An heire-loome is called principalium or haereditarium.
Consuetudo hundredi de Stretford in Com’ Oxon’ est quod haeredes ten’torum infra hundredum praedictum existen’ post mortem antecessorum suorum habebunt, &c.principalium, Anglice an heire-loome, viz. De quodam genere catallor’, utensilium, &c. optimum plaustrum, optimam carucam, optimum ciphum, &c.
Our Author hath not spoken of parcencers in this Chapter, for that he hath particular Chapters of the same.
Fee Tail, part 2
| And all these Entailes aforesaid be specified in the said Statute of W. 2. Also there bee divers other estates in taile, though they bee not by expresse words specified in the said Statute, but they are taken by the equitie of the same Statute. As if lands be given to a man, and to his heires males of his body begotten, in this case his issue male shal inherit, and the Issue female shall never inherit, and yet in the other entailes aforesaid, it is otherwise.
“And all these Entailes aforesaid be specified in the said Statute of W[estmister].2.”
And so it appeareth by the said statute. Auxy sont divers auters estates en le taile, &c. And herewith agreeth Carbonels Case, 33. Edw. 3. titulo Taile 5.
That the cases of the statute are set downe but for examples of estates tailes generall and speciall, and not to exclude other estates taile 3. Edw. 3. 32. 18. Ass. p. 5. 13. Edw. 3. 46. 1. Mar. Dyer 46. Pl. Com. Seignior Barkleys case, fo. 251. For, Exempla illustrant, non restringunt legem.
Is a construction made by the Judges, that cases out of the letter of a statute yet being within the same mischiefe, or cause of the making of the same, shall bee within the same remedie that the Statute provideth; And the reason hereof is for that the Law-maker could not possibly set downe all cases in expresse termes, Aequitas est convenientia rerum quae cuncta coaequiparat, & quae in paribus rationibus paria jura & judicia desiderat. And againe, Aequitas est perfecta quaedam ratio quae jus scriptum interpretatur&emendat, nullascripturâ comprehensa, sed solum in vera ratione consistens. Aequitas est quasi aequalitas.Bonus Judex secundum aequum & bonum judicat, & aequitatem stricto juri praefert. Et jus respicit aequitatem.
“As if lands be given to a man, and to (f) his heires males of his body begotten, in this case his issue male shall inherit, and the Issue female shall never inherit, &c.”
This shall be explaned afterward, Sect. 24.
Tenant at Will, part 2
| Also if a house be letten to one to hold at will, by force whereof the Lessee entreth into the house, & brings his householdstuffe into the same, and after the Lessor puts him out, yet hee shall have free entrie, egresse and regresse into the said house, by reasonable time to take away his goods and Utensils. As if a man seised of a mese in fee simple, fee taile, or for life, hath certain goods within the said house, and makes his Executors, and dieth, whosoever after his decease hath the house, his Executors shall have free entrie egresse and regresse to carrie out of the same house the goods of their testator by reasonable time.
“if a house be letten to one to hold at will,”
The reason of this is evident upon that which hath beene said before.
or Mai-|-son, called in Legall Latine Messuagium, containeth (as hath beene said) the Buildings, Curtelage, Orchard, and Garden.
Cottage, Cotagium is a little house without land to it. (a) See 31. Eliz. cap. I and Cottagers in Doomesday Booke are called Cotterelli: and in ancient Records Haga signifieth a house. If a man hath a house neer to my house, and hee suffereth his house to be so ruinous, as it is like to fall upon my house, (b) I may have a writ De domo reparanda, and compell him to repaire his house. But a Praecipe lieth not de domo, but de messuagio.
“by reasonable time”
(c) This reasonable time shall be adjudged by the discretion of the Justices, before whom the cause dependeth; and so it is of reasonable fines, customes, and services, upon the true state of the case depending before them; for reasonableness in these cases belongeth to the knowledge of the Law, and therefore to be decided by the Justices. (d)Quam longum esse debet non definitur in jure, sed pendet ex discretione Justiciariorum: And this being said of time, the like may be said of things incertaine, which ought to be reasonable; for nothing that is contrarie to reason, is consonant to Law.
(e) “As if a man seised of a mese in fee simple, fee taile,”
This is so evident as it needeth no explaination.
Tenant by the Verge, part 3
| And so it is to be understood, that in divers Lordships, and in divers Manors, there be many and divers customes, in such cases as to take tenements, & as to plead, and as to other things and customes to bee done, and whatsoever is not against reason, may well be admitted and allowed.
“be many and divers customes,”
This was cautiously set downe, for in respect of the varietie of the customes in most Mannors, it is not possible to set downe any certaintie, only this incident inseparable everie custome must have, viz. that it be consonant to reason, for how long soever it hath continued, if it bee against reason, it is of no force in Law.
This is not to be understood of everie unlearned mans reason, but of artificiall and legall reason warranted by authoritie of Law: Lex est summa ratio.
Escuage, part 2
| But it appeareth by the pleas and arguments made in a plea upon a Writ of detinue of a writing obligatorie brought by one H. Gray. T.7.E.3. that it is not needfull for him which holdeth by Escuage to goe himselfe with the King if hee will finde another able person for him conveniently arrayed for the warre to goe with the King. And this seemeth to be good reason. For it may be that hee which holdeth by such services is languishing, so as hee can neither goe nor ride. And also an Abbot or other man of Religion, or a feme sole, which hold by such services, ought not in such case to goe in proper person. And Sir William Herle then chief Justice of the common place said in this plea, that Escuage shall not bee granted, but where the King goes himselfe in his proper person. And it was demurred in judgment in the same plea, whether the 40. dayes should bee accounted from the first day of the muster of the Kings host made by the Commons, and by the commandement of the King, or from the day that the King first entred into Scotland. Therefore inquire of this.
TR. 7. E. 3. &c. This is the first booke at large that our Author hath cited and it is to be observed that this point is not debated in the said booke, but onely it is there admitted, and yet is good authoritie in law, for our Author saith that it appeareth by this booke, now both by Littleton himselfe, and by the booke of 7. Edw. 3. it is apparant that albeit the tenure is that hee which holdeth by a whole knights fee ought to be with the King, &c. todoeacorporall service, yet he may finde another able man to doe it for him.
By the Statute of Magna Charta, cap. 20. it is provided, that no knight that holdeth by Castle-gard shall bee distreined to give money for the keeping of the Castle, Si ipse eam fucere voluerit in propria persona sua vel per alium probum hominem faciet si ipse eam facere non possit propter rationabilem causam.
Some have thought that hee that holds by Escuage is taken by the equitie of this statute that speaketh onely of Castle-gard, but it is holden that this statute is but an affirmance of the common law. For where that Act saith, (propter rationabilem causam) that reasonable cause is referred to the tenants owne discretion and choyce, and the cause is not materiall or issuable no more than in the case that Littleton here putteth, as hereafter appeareth. And I would advise our Student, that when he shall be enabled and armed to set upon the yeere bookes, or reports of Law, that hee be furnished with all the whole course of the Law, that when hee heareth a case vouched and applyed either in Westminster Hall, (where it is necessarie for him to be a diligent hearer, and observer of cases of Law) or at readings or other exercises of learning, hee may find | out and reade the case so vouched, for that will both fasten it in his memorie, and bee to him as good as an exposition of that case, but that must not hinder his timely and orderly reading, which (all excuses set apart) he must binde himselfe unto, for there bee two things to be avoided by him, as enemies to learning, praepostera lectio, and praepropera praxis. But let us now heare what our author will say:
“And this seemeth to be good reason.”
Here Littleton sheweth three reasons wherefore the Tenant should not be constrained to doe his service in person.
First, It may be the Tenant is sicke, so as he is neither able to goe nor ride. And ever such construction must be made in matters concerning the defence of the Realme or common good, as the same may be effected and performed. To the former disabilitie may be added where a Corporation aggregateofmany, as Deane and Chapter, Mayor and Communaltie, &c. or an Infant being a Purchaser, for these also must finde an able man. But it may be objected that in these particular Cases the Tenant might finde a man, but not when hee himselfe is able without all excuse or impediment. To this it is answered, that Sapiens incipit à fine. And the end of this service is for defence of the Realme, and so it be done by an able and sufficient man, the end is effected.
Secondly, Seeing there are so many just excuses of the Tenant, it were dangerous, and tending to the hindrance of the service, if these excuses should be issuable Multa in jure communi contra rationem disputandi pro communi utilitate introducta sunt.
Lastly, both Littleton and the Booke in the 7. Edw. 3, giveth the Tenant power, without any cause to be shewed to finde an able and sufficient man, and oftentimes Jura publica ex privato promiscue decidi non debent.
“an Abbot or other man of Religion,”
Note that if the King had given Lands to an Abbot and his Successours to hold by Knights Service, this had beene good, and the Abbot should doe homage and finde a man., &c. or pay Escuage, but there was no Wardship or Reliefe or other Incident belonging thereunto. And though the Law saith that this was a Mortmaine, that is, that they held fast their Inheritances, yet if the Abbot with the assent of his Covent, had conveyed the land to a natural man and his heires, now Wardship and Reliefe & other Incidents belonged of common right to the Tenure. And so it is, if the King give Lands to a Mayor and Communaltie, and their Successours to be holden by Knights Service. In this case the Patentees (as hath beene said) shall doe no homage, neither shall there be any Wardship or Reliefe, onely they also shall finde a man, &c. or pay Escuage. But if they convey over the lands to any naturall man and his heires, now Homage, Ward, Marriage, and Reliefe, and other Incidents belong hereunto. And yet this possibilitie was remota potentia, but the reason hereof is, Cessante ratione legis cessat ipsa lex, the reason of the immunitie was in respect of the Body politique, which by the conveyance over ceaseth, which is worthy of observation.
And it is to be observed, that everie Bishop in England hath a Barony, and that Barony is holden of the King in Capite, and yet the King can neither have Wardship or Reliefe.
If two Joyntenants be of Land holden by Knights Service, if one goeth with the King, it sufficeth for both, and both of them cannot be compelled to goe, for by their Tenure one man is onely to goe.
If the Tenant peravaile goeth, it dischargeth the Mesne, for one Tenancie shall pay but one Escuage.
“or other man of Religion,”
Here this word (Religion) is taken largely, viz. not onely for regular, or dead persons, as Abbots, Monks, or the like; But for secular persons also, as Bishops, Parsons, Vicars, and the like, for neither of them are bound to goe in proper person. For nemo militans Deo implicet’ secularibus negotiis.
So it may be said of an Ideot, a mad man, a leper, a man maimed, blinde, deafe, of decrepit age, or the like.
“or a feme sole,”
Seeing that a feme sole, that cannot performe Knights Service, may serve by deputie, it may bee demanded wherefore an Heire male being within the age of 21 | yeeres may not serve also by Deputie, being not able to serve himselfe.
To this it is answered, that in cases of Minoritie, all is one to both sexes, viz. if the Heire male be at the death of the Ancestor under the age of one and twentie, or the Heire female under the age of 14. they can make no Deputie, but the Lord shall have wardship as an incident to the Tenure: therefore Littleton is here to be understood of a feme sole of full age, and seised of land holden by Knights Service either by purchase or descent.
“conveniently arrayed for the warre.”
So as here are foure things to be observed.
First, (as hath beene said) that he may finde another.
Secondly, that he that is found must be an able person.
Thirdly, he must be armed at the costs and charge of the Tenant, and herein is to be noted, Quod non definitur in jure, with what manner of Armor the Souldier shall be arrayed with, for time, place, and occasion doe alter the manner and kinde of the Armour.
Fourthly, he must have such Armour, as shall be necessarie, andsoappointed in readinesse.
Ferdwit is a Saxon word, & significat quietanciam murdri in exercitu.Worscot is an old English word and signifeth Liberum esse de oneribus armorum.
It is truly said, Quod miles haec tria curare debet, corpus ut validissimum & pernicissimum habeat, arma apta ad subita imperia, caetera Deo, & imperatori curae esse.
Sapiens non semper it uno gradu, sed una via, non se mutat sed aptat. Qui secundos optat eventus, dimicet arte non casu. In omni conflictu non tam prodest multitudo quam virtus. ,
Est optimi ducis scire & vincere, & cedere prudenter tempori. Multum potest in rebus humanis occasio, plurimum in bellicis. ,
Quid tam necessarium est quam tenere semper arma quibus tectus esse possis. , But I will take my leave of these excellent Authors of Art Militarie, and referre them to those that professe the same, and will returne to Littleton.
I finde this word in the Statute of 18. Hen. 6. cap. 19. and the ancient Militarie Order is worthy of observation, for before and long after that Statute, when the King was to be served with Souldiers for his warre, a Knight or Esquire of the Countrey, that had Revenues, Farmers and Tenants would covenant with the King by Indenture inrolled in the Exchequer to serve the King for such a terme for so many men (specially named in a List) in his warre, etc. an excellent institution that they should serve under him, whom they knew and honoured, and with whom they must live at their returne, these men being mustered before the Kings Commissioners, and receiving any part of their wages, and their names so recorded, if they after departed from their Captaine within the Terme, contrarie to the forme of that Statute, itwasfelony. But now that Statute is of no force, because that ancient and excellent forme of militarie course is altogether antiquated: but latter Statutes have provided for that mischiefe.
To muster is to make a shew of Souldiers well armed and trained before the Kings Commissioners in some open field. Ubi se ostendentes praeludunt proelio. In Latine it is censere, seu lustrare exercitum.
By the Law before the Conquest Musters and shewing of Armour should be Uno eodem die per universum regnum, ne aliqui possint arma familiaribus & notis accommodare, nec ipsi illa mutuo accipere, ac justitiam Domini Regis defraudare, & Dominum Regem & Regnum offendere. ,
Concerning the point in Law, demurred in judgement, in 7. Edw. 3, here mentioned by our Author: The Law accounteth the beginning of the fortie dayes after the King entreth into the forraine Nation, for then the warre beginneth, and till he come there, he and his host are said to goe towards the warre, and no militarie service is to be done, till the King and his Host come thither.
“Sir William Herle.”
A famous Lawyer constituted Chiefe Justice of the Common Pleas by Letters Patents dated, 2. die Martii anno 5. E. 3. It appeareth by Littleton, and by the Record that he was a Knight, against the conceit of those, that thinke, that the chiefe Justices of the Court of Common Pleas were not knighted till long after.
Our Student shall observe that the knowledge of the Law is like a deep Well out of which each man draweth according to the strength of his understanding. He that reacheth deepest, he seeth the amiable and admirable secrets of the Law, wherein, I assure you, the Sages of the Law in former times, (whereof Sir William Herle was a principall one) have had the deepest reach. And as the Bucket in the depth is easily drawne to the uppermost part of the water, (for Nullum elementum in suo proprio loco est grave), but take it from the water, it cannot be drawneupbutwith great difficultie.Soalbeitbeginnings of this studie seeme difficult, yet when the Professor of the Law can dive into the depth, it is delightfull, easie, and without any heavie burthen, so long as he keepe himselfe in his owne proper element.
In Glanvil hee is called Justicia in ipso abstracto, , as it were Justice it selfe, which appellation remaines still in English and French, to put them in minde of their dutie and functions. But now in legall Latine they are called Justiciarii tanquam justi in concreto, and they are called Justiciarii de Banco, &c, and never Judices de Banco, &c.
“Common Bank (place)”
Banke is a Saxon word, and signifieth a Bench or high seat, or a Tribunall, and is property applyed to the Justices of the Court of Common Pleas, because the Justices of that Court set there as in a certaine place: for all Writs returnable into that Court are Coram Justiciariis nostris apud Westmon or any other certaine place where the Court set, and Legall Records tearme them Justiciarii de Banco. But Writs returnable into the Court called the Kings Bench, are Coram nobis (i. Rege) ubicunque fuerimus in Anglia. And all judiciall Records there are stiled Coram Rege. But for distination sake it is called the Kings Bench, both because the Records of that Court are stiled (as hath beene said) Coram Rege, and because Kings in former times have often personally set there. For the antiquitie of the Court of Common Pleas they erre, that hold that before the Statute of Magna Charta there was no Court of Common Pleas, but had his Creation by, or after that Charter: for the learned know, that in the six and twentieth yeere of Edward the Third, the Abbot of B. in a Writ of Assize, brought before the Justices in Eire claimed Conusance and to have Writs of Assize, and other originall Writs out of the Kings Court by prescription, time out of minde of man, in the raignes of Saint Edmond, and Saint Edward the Confessor before the Conquest. And on the behalfe of the Abbot were shewed divers allowances thereof in former times in the Kings Courts, and that King Henry the first confirmed their usages, and that they should have Conusance of Pleas, so that the Justices of the one Bench, or the other, should not intermeddle. And the Statute of Magna Charta, erecteth no Court, but giveth direction for the proper jurisdiction thereof in there words. Communia Placita non sequantur Curiam nostram, sed teneantur in aliquo certo loco. And properly the Statute saith, non sequantur, for that the Kings Bench did in those dayes follow the King ubicunque fuerit in Anglia, and therefore enacteth that Common Pleas should be holden in a Court resident in acertaine place. In the next Chapter of Magna Charta (made at one and the same time) it is provided:Et ea quae per eosdem (s. justiciarios itinerantes) propter difficultatem aliquorum articulorum terminari non possunt, referantur ad Justiciarios nostros de Banco, & ibi terminentur. And in the next to that, Assisae de ultima praesentatione semper capiantur coram Justiciariis de Banco, & ibi terminentur. Therefore it manifestly appeareth, that at the making of the Statute of Magna Charta, there were Justiciarii de Banco, which all men confesse to be the Court of Common Pleas. And therefore that Court was not created by or after that Statute. For the Authoritie of this Court, it is evident by that which hath beene said, that it hath jurisdiction of all Common Pleas. But let us returne to Littleton.
“demurred in judgment.”
A Demurrer commeth of the Latine word Demorari, to abide, and therefore hee which demurreth in Law, is said, he that abideth in Law, Moratur, or Demoratur in lege. Whensoever the Counsell learned of the partie is of opinion, that the Court or Plea of the adverse partie is insufficient in Law, then he demurreth or abideth in Law, and referreth the same to the judgment of the Court, and therefore well saith Littleton here, demurre en judgement, the words of a Demurrer being Quia narratio, &c. materiaque in eadem contenta minus sufficiens in lege existit, &c, and so of a Plea, Quia Placitum, &c. materiaque in eodem contenta minus sufficiens in lege existit, &c. unde pro defectu sufficientis narrationis sive placiti, &c. petit judicium, &c. But if the Plea be sufficient in Law, and the matter of fact be false, then the adverse partie taketh issue thereupon, and that is tried by a Jurie, for matters in Law are decided by the Judges, and matters in fact by Juries, as elsewhere is said more at large.
Now as there is no issue upon the fact, but when it is joyned betweene the parties, so there is no Demurrer in Law, but when it is joyned, and therefore when a Demurrer is offered by the one partie as is aforesaid, the adverse partie joyneth with him, (for example) saith, Quod Placitum praedictum, &c. materiaque in eodem contenta bonum & sufficiens in lege existunt, &c. & petit judicium, and thereupon the Demurrer is said to be joyned, and then the Case is argued by Councell learned of both sides, and if the points be difficult, then it is argued openly by the Judges of that Court, and if they or the greater part concurre in opinion, accordingly judgment is given, and if the Court be equally divided, or conceive great doubt of the Case, then may they adjourne it into the Exchequer Chamber, where the Case shall be argued by all the Judges of England, where if the Judges shall be equally divided, then (if none of them change their opinion) it shall be decided at the next Parliament by a Prelate, two Earles, and two Barons which shall have power and commission of the King in that behalfe, and by advice of themselves, the Chancellor, Treasurer, the Justices of | the one Bench and the other, and other of the Kings Councell, as many and such as shall seeme convenient, shall make a good judgment, &c. And if the difficulty be so great as they cannot determine it, then it shall be determined by the Lords in the upper house of Parliament. See the statute, for it extends not onely to the case abovesaid, but also where judgements are delayed in the Chancery, Kings bench, Common bench, and the Exchequer, the Justices assigned, and other Justices of Oyer and Terminer, sometime by dificulty, sometime by divers opinions of Justices, and sometime for other causes. (a) Before which Statute, if judgements were not given by reason of difficulty, the doubt was decided at the next Parliament, (which then was to be holden once every yeere at the least)(b)Siautemtalianunquam prius evenerint, & obscurum & difficile sit eorum judicium, tunc ponatur judicium in respectum usque ad magnam curiam, ut ibi per concilium curiae terminentur. But hereof thus much shall suffice. (r) He that demurreth in Law confesseth all such matters of fact as are well and sufficiently pleaded. If there be a demurrer for part and an issue for part, the more orderly course is to give judgement upon the demurrer first, but yet it is in the discretion of the Court to try the issue first if they will. After demurrer joyned in any Court of Record, the Judges shall give judgement according as the very right of the cause and matter in Law shall appeare, without regarding any want of forme in any Writ, Returne, Plaint, Declaration, or other pleading Proces, or course of proceeding, except those only which the party demurring shall specially and particularly set downe and expresse in his demurrer. (a) Now what is substance and what is forme you shall reade in my Reports.
And in some cases a man shall alleage special matter, and conclude with a Demurrer, (b) as in an action of trespasse brought by I.S. for the taking of his horse, the defendant pleads that he himselfe was possessed of the horse until he was by one I. S. dispossessed, who gave him to the plaintife, &c. the plaintife saith that I. S. named in the barre, and I. S. the plaintife were all one person, and not divers; and to the plea pleaded by the defendant in the manner, he demurred in Law and the Court did hold the plea and demurred good, for without the matter alleaged he could not demurre. Now as there may be a demurrer upon counts and pleas, so there may be of Aid prier, Voucher, Receipt, waging of Law, and the like. (c) By that which hath beene said it appeareth, that there is a general demurrer, that is, shewing no cause, and a speciall demurrer which sheweth the cause of his demurrer. Also by that which hath beene said, there is a demurrer upon pleading, &c. and there is also a demurrer upon evidence. (d) As if the plaintife in evidence shew any matter of Record, or Deeds, or Writings, or any sentence in the Ecclesiasticall Court, or other matter of evidence by testimony of witnesses, or otherwise, whereupon doubt in Law ariseth, and the defendant offer to demurre in Law thereupon, the plaintife cannot refuse to joyne in demurrer no more than in a demurrer upon a count, replication, &c. and so E converso, may the plaintiff demurre in Law upon the evidence of the defendant.
But if evidence for the King in an Information or any other suit be given, and the Defendant offer to demurre in Law upon the Evidence, the Kings counsell shall not be inforced to joyne in Demurrer: but in that case, the Court may direct the Jury to finde the speciall matter.
For the signification of this word, Vide Sect. 366.
Knight’s Service, part 6
| Note, it hath been a question, how these words shall bee understood.(Siparentes conquerantur.)
And it seemeth to some who considering the Statute of Magna Charta, which willeth, Quod haeredes maritentur absque disparagatione, &c. Upon which, this Statute of Merton upon this point is founded, that no action can be brought upon this Statute, insomuch as it was never seene or heard, that any action was brought upon the Statute of Merton for this disparagement against the Gardian for the matter aforesaid, &c. And if any action might have been brought for this matter, it shall bee intended that at some time it would have been put in ure. And note that these words shall bee understood thus, Si parentes conquerantur, id est, si parentes inter eos lamententur, which is as much to say, as if the Cousins of such Infant have cause to make lamentation or complaint amongst themselves, for the shame done to their Cousin so disparaged, which in manner is a shame to them, then may the next Cousin to whom the inheritance cannot descend, enter and ouste the Gardein in Chivalrie. And if he will not, another cousin of the Infant may doe this, and take the issues & profits to the use of the Infant, & of this to render an account to the Infant when he comes to his full age: or otherwise the Infant within age may enter himselfe & ouste the Gardein, &c. Sed quaere de hoc.
“the Statute of Magna Charta,”
Though it be in forme of a | Charter, yet being granted by assent and authoritie of Parliament, Littleton here saith it is a Statute.
This Parliamentarie Charter hath divers appellations in law. Here it is called Magna Charta, not for the length or largenesse of it (for it is but short in respect of the Charters granted of private things to private persons now adayes being (Elephantinae Chartae) but it is called the great Charter in respect of the great weightinesse and weightie greatnesse of the matter contained in it in few words, being the fountaine of all the fundamentall lawes of the Realme, and therefore it may truly be said of it, that it is magnum in parvo. It is in our Bookes called Charta libertatum,et Communis libertas Angliae, or Libertates Angliae. Charta de liberratibus, Magna Charta, &c. And well may the Lawes of England be called Liberrates, quia liberos faciunt.Magna fuit quondam magnae reverentia Chartae.
This Statute of Magna Charta, is but a confirmation or restitution of the Common Law, as in the Statute called Confirmatio chartarum,Anno 25. Edw. 1. it appeareth by the opinion of all the Justices; and in 5. Hen. 3. tit. Mord. 53. Magna Charta is there vouched, for there it appeareth, that King John had granted the like Charter of renovation of the ancient Lawes
This Statute of Magna Charta hath beene confirmed above thirty times and commanded to bee put in execution, By the Statute of 25. Edw. 1. c. 2 judgements given against any points of the Charters of Magna Charta or Charta de Forests are adjudged void. And by the Statute of 42. Edw. 3. cap. 3. If any Statute bee made against either of these Charters it shall be voyd.
“considering the Statute of Magna Charta, Upon which, this Statute of Merton upon this point, is founded. Quod haeredes maritentur absque disparagatione,” “founded,”
So as Magna Charta is the foundation of other Acts of Parliament. This Act extendeth as well to females as to males.
“no action can be brought upon this Statute, insomuch as it was never seene or heard . . . &c. And if any action might have been brought for this matter, it shall bee intended that at some time it would have been put in ure.”
Hereby it appeareth how safe it is to be guided by judiciall presidents the rule being good,Periculosum existimo quod benorum virorum non comprobatur exemplo. And as usage is a good Interpreter of Lawes, so non usage where there is no example is a great intendment, that the Law will not beare it; for saith Littleton, If any Action might have beene grounded upon such matter, it shall be intended that sometime it should have beene put in ure. Not that an Act of Parliament by non User can be antiquated or lose his force, but that it may be expounded or declared how the Act is to be understood.
“Si parentes conquerantur,”
Of this sufficient hath beene said before.
“if the Cousins”
Here Littleton expoundeth Parents to be his Cousins, under which name of Cousins Littleton includeth Uncles and other Cousins, who when the Father is dead are in loco parentum.
“have cause to make lamentation,”
Note if they have cause to make, lamentation on, it sufficeth, though they complaine.
“for the shame done to their Cousin.”
For when their Cousin is disparaged in his marriage, it is not onely a shame and infamie to the heire, but in him to all his bloud and kindred.
“then may the next Cousin to whom the inheritance cannot descend, enter and ouste the Gardein in Chivalrie.”
This is worthy the observation, for the words of the Statute are generall, Secundum dispositionem parentum, and the construction thereof shall be according to the reason of the Common Law, for the next Cousin, to whom the inheritance cannot descend, shall enter and ouste the Gardian, and shall be in place of a Gardian, as it is in case of a Gardian in socage.
“And if he will not, another cousin of the Infant may doe this.”
Still pursuing the reason of the Common Law in case of Gardian in Socage.
“and take the issues & profits to the use of the Infant, &c.”
This is so evident as it needeth no explaination.
“or otherwise the Infant within age may enter himselfe & ouste the Gardein.”
If none of the Cousins aforesaid will enter, then the heire himself may enter. In all which the reason of the Common Law is pursued. But what if the heire be disparaged, and the next of kin doth enter, and when the heire commeth to 14 hee agreeth to the marriage; yet shall not this give any advantage to the Lord, for that he had lost the Wardship before.
Frankalmoin, part 5
| Also if it be demanded, if tenant in frankmarriage shall doe fealtie to the donor or his heires before the fourth degree be past, &c. it seemeth that he shall, for he is not like as to this purpose to tenant in frankalmoigne, for tenant in frankalmoign by reason of his tenure shall doe divine service for his Lord, (as is said before) and this he is charged to doe by the Law of holy Church, and therefore he is excused and discharged of fealty, but tenant in frankmarriage shal not doe for his tenure such service, and if he doth not fealty, he shall not doe any manner of service to his Lord neither spirituall nor temporall, which would be inconvenient and against reason, that a man shall be tenant of an estate of inheritance to another, and yet the Lord shall have no manner of service of him, and so it seemes he shall doe fealty to his Lord before the fourth degree be past. And when he hath done fealty, he hath done all services.
“which would be inconvenient.”
An argument drawne from an inconvenience, is forcible in Law, as hath been obser-|-ved before, and shall be often hereafter. Nihil quod est inconveniens, est licitum. , And the law that is the perfection of reason, cannot suffer any thing that is inconvenient.
It is better, saith the laws, to suffer a mischiefe (that is pecultar to one) than an inconventence that may prejudice many: See more of this after in this Chapter.
Note, the reason of this diversity, betweene Frankalmoigne and Frankmarriage, standeth upon a maine maxime of Law, that there is no land, that is not holden by some service spirituall or temporall, and therefore the donee in Frankmarriage shall doe realty, for otherwise he should doe to his Lord no service at all, and yet it is Frankmarriage, because the Law createth the service of Fealty for necessity of reason, and avoiding of an inconvenience. But tenant in Frankalmoigne both spirituall and divine service, which is within the said Maxime and therefore the Law will not cohort him to doe any temporall service. See the next session.
“and against reason,”
And this is another strong argument in Law, Nihil quod est contra rationem est licitum. For reason is the life of the Law, nay the common Law it selfe is nothing else but reason, which is to be understood of an artificiall perfection of reason, gotten by long study, observation, and experience, and not of every mans naturall reason, for, Nemo nascitur artifex. This legall reason, est summa ratio. And therefore if all the reason that is dispersed into so many severall heads were united into one, yet could he not make such a Law as the Law of England is, because by many successions of ages it hath been fined and refined by an infinite number of grave and learned men, and by long experience growne to such a perfection, for the government of this Realme, as the old rule may be justly verified of it, Neminem oportet esse sapientiorem legibus: No man (out of his owne private reason) ought to be wiser than the Law, which is the perfection of reason.
Tenure in Burgage, part 9
| And note that no custome is to bee allowed, but such custome as hath bin used by title of prescription, that is to say, from time out of minde. But diversopinions have beene of time out of minde, &c. and of title of prescription, which is all one in the Law. For some have said, that time of minde should be said from time of limitation in a Writ of right, that is to say, from the time of King Richard the first after the Conquest, as is given by the Statute of Westminster the first, for that a Writ of right is the most highest Writ in his nature that may be. And by such a writ a man may recover his right of the possession of his Ancestors, of the most ancient time that any man may by any writ by the Law, &c. And in so much that it is given by the said Estatute, that in a writ of right none shall be heard to demand of the seisin of his Ancestors of longer time, than of the time of King Richard aforesaid, therefore that is proved, that continuance of possession, or other customes & usages used after the same time is the title of prescription, and this is certaine. And others have said, that well and truth it is, that seisin and continuance after the limitation, &c. is a title of prescription, as is aforesaid, and by the cause aforesaid. But they have said that there is also another title of prescription that was at the Common Law, before any estatute of limitation of writs, &c. And that it was where a custom or usage, or other thing hath beene used, for time whereof mind of man runneth not to the contrary. And they have said that this is proved by the pleading: where a man will plead a title of prescription of custome hee shall say that such custome hath been used from time whereof the memory of men runneth not to the contrary, that is as much to say, when such a matter is pleaded, that no man then alive hath heard any proofe of the contrary, nor hath no knowledge to the contrary, & insomuch that such title of prescription was at the common law, & not put out by an estatute, Ergo, it abideth as it was at the common law, & the rather, insomuch that the said limitation of a writ of right, is of so long time passed, Ideo quaere de hoc. And many other customes and usages have such ancient Boroughs.
Prescription is a title taking his substance of use and time allowed by the Law; Prescriptio est titulus ex usu & tempore substantiam | capiens ab authoritate Legis. In the Common Law a prescription which is personall is for the most part applied to persons, being made in the name of a certaine person and of his Ancestors, or those whose estate he hath, or in bodies politique or corporate, & their Predecessors, for as a naturall body is said to have Ancestors, so a body politique or corporate is said to have Predecessors. And a custome which is locall is alleaged in no person, but laid within some Mannor or other place. As taking one example for many, J. S. seised of the mannor of D. in fee prescribeth thus: That J. S. his Ancestors, and all those whose estate he hath in the said Mannor, have time out of minde of man had and used to have Common of pasture, &c. in such a place, &c. being the land of some other, &c. as pertaining to the said Mannor. This properly we call a prescription. A custome is in this manner: A Coppyholder of the Mannor of D. doth plead, that within the same Mannor, there is and hath been such a custome time out of mind of man used, that all the Coppyholders of the said Mannor have had and used to have Common of pasture, &c. in such a wast of the Lord, parcell of the said Mannor, &c. where the person neither doth or canprescribe, but alleageth the custome within the Mannor. But both to customes and Prescriptions, these two things are incident inseparable, viz. Possession, or usage; and Time. Possession must have three qualities, it must be long, continuall, and peaceable, Longa, continua, & pacifica: For it is said,Transferuntur dominia sine titulo & traditione, per usucaptionem s. per longam, continuam, & pacificam possessionem. Longa, i.e. per spatium temporis per legem definitum, of which hereafter shall bee spoken, Continua dico ita quod non sit legitime interrupta. | Pacificam dico, quia si contentiosa fuerit, idem erit quod prius, si contentio fuerit justa. Ut si verus Dominus statim cum intrusor vel disseisor ingressus fuerit seisinam, nitatur tales viribus repellere, & expellere, licet id quod inceperit perducere non possit ad effectum, dum tamen cum defecerit diligens sit ad impetrandum & prosequendum. Longus usus nec per vim, nec clam, nec precario, &c. ,
If a man prescribeth to have a rent, and like-wise to take a Distresse for the same, it cannot be avoided by pleading, that the rent hath beene alwayes paid by cohersion, albeit it began by wrong.
“a title of prescription.”
Seeing that prescription maketh a title, it is to be seene, first to what things a man may make a title by prescription without charter. And secondly, how it may be lost by interruption.
For the first, as to such franchises and Liberties as cannot bee seised or forfeited, before the cause of forfeiture appeare of Record, no man can make a title by prescription because that prescription being but an usage in pais, it cannot (*) extend to such things as cannot bee seised nor had without matter of Record: as to the goods and chattels of Traitors, Felons, Felons of themselves, Fugitives, of those that be put in exigent, Deodands, Conusance of Pleas, to make a Corporation, to have a Sanctuarie, to make a Coro-|-ner, &c. to make Conservators of the peace, &c.
(c) But to Treasure Trove, Waifes, Estraies, Wrecke of sea, to hold Pleas, Courts of Leets, Hundreds, &c. Infange thiefe, Outfange thiefe, to have a Parke, Warren, Royall fishes, as Whales, Sturgions, &c. Faires, Markets, Franke foldage, the keeping of a Goale, Toll, a Corporation by prescription, and the like, a man may make a Title by usage and prescription only without any matter of Record, (*) Vide Sect. 310. where a man shall make a Title to lands by prescription.
But is to be observed (f ) that although a man cannot as is aforesaid prescribe in the said Franchise to have Bona & catalla proditorum, felonum, &c. yet may they and the like be had obliquely or by a meane by prescription; for a Countie Palatine may be claimed by prescription, and by reason thereof to have Bona & catalla proditorum, felonum, &c.
As to the second, by what meanes a Title by prescription or custome, may be lost by interruption; It is to be knowne that the title being once gained by prescription or custome, cannot be lost by interruption of the possession for 10. or 20. yeeres, but by interruption in the right, as if a man have had a Rent or Common by prescription, unity of possession of as high and perdurable estate is an interruption in the right.
In a Writ of Mesne the Plaintife made his title by prescription, that the Defendant and his Ancestors had acquited the Plaintife & his Ancestors, and the Terre tennant time out of minde, &c. the Defendant tooke issue, that the Defendant & his Ancestors had not acquited the Plaintife & his Ancestors & the Terre tenant, and the Jurie gave a speciall verdict, that the Grandfather of the Plaintife was enfeoffed by one Agnes and that Agnes and her Ancestors were acquited by the Ancestors of the Defendant time out of minde before that time, since which time no acquitall had been, and it was adjudged and affirmed in a Writ of error, that the Plaintife should recover his Acquitall, for that there was once a title by prescription vested, which cannot be taken away by a wrongfull Cesser to acquite of late time, and albeit the verdict had found against the letter of the issue, yet for that the substance of the issue was found, viz. a sufficient title by prescription, it was adjudged both by the Court of Common Pleas, and in the Writ of error by the Court of Kings Bench for the plaintife, which is worthy of observation. So a Modus decimandi was alleaged by prescription time out of minde for tithes of lambs, and thereupon issue joyned, and the Jurie found that before 20 yeeres then last past there was such a prescription, and that for these 20 yeeres, he had paid tithe lambe in Specie, and it was objected, first, That the issue was found against the Plaintife, for that the prescription was generall for all the time of prescription, and 20 yeeres faile thereof. 2. That the partie by payment of tithes in Specie had waived the prescription or custome. But it was adjudged for the Plaintife in the prohibition, for albeit the Modus decimandi had not beene paid by the space of 20 yeeres, yet the prescription being found, the substance of the issue is found for the Plaintife. And if a man hath a Common by prescription, and taketh a lease of the land for 20 yeeres, whereby the Common is suspended, after the yeeres ended, he may claime the Common generally by prescription, for that the suspension was but the possession, and not to the right, and the inheritance of the Common did alwayes remaine, and when a prescription or custome doth make a title of inheritance (as Littleton speaketh) the partie cannot alter or waive be the same in pais.
“time out of minde, &c. and of title of prescription, which is all one in the Law,”
So as the time prescribed or defined by Law is, time, whereof there is no memorie of man to the contrary. (c)Omnis quaerela, &omnis actio injuriarum limitata intra certa tempora.
“time of limitation.”
Limitation as it is taken in Law is a certaine time prescribed by Statute, within the which the Demandant in the action must prove himselfe or some of his Ancestors to be seised.
“in a Writ of right,”
In (f ) ancient time the limitation in a Writ of Right was from the time of Henry the first whereof it was said, à tempore Regis Henrici senioris. After that by the Statute of (g) Merton the limitation was from the time of Henry the Second and by the Statute (h) of West. I. the limitation was from the time of Richard the First. And this is that limitation that Littleton here speaketh of, whereof in the Mirror in reprose of the Law it is thus said, (i)Abusion est de counter cy longe temps dount nul ne poet testmoigner de vieu & de oyer que ne dure my generalment ouster 40. ans.
| Time of limitation is twofold, First, in Writs, and that is by divers Acts of Parliament. Secondly, To make a title to any Inheritance, and that (as Littleton here saith) is by the Common Law.
Limitation of times in Writs are provided by the said Statute of Merton, and after by the said Statute of West. I. which Littleton here citeth, and which was in force when he wrote, but is since altered by a profitable and necessary Statute (k) made Anno 32. Hen. 8. and by that Act, the former limitation of time in a Writ of Right is changed and reduced to threescore yeeres next before the Teste of the Writ, and so of other actions, as by the statute at large appeareth. But it is to be observed that this Act of 32. Hen. 8. extendeth (l) not to a Formedon, in the Discender, nor tothe Services of Escuage, Homage, and Fealtie, for a man may live above the time limited by the Act: neither doth it extend to any other service, which by common possibility may not happen or become due within sixty yeeres; as to cover the hall of the Lord, or to attend on his Lord when he goeth to warre, or the like, nor where the seisin is not traversable or issuable, neither doth it extend to a Rent created by Deed, nor to a Rent reserved upon any particular estate, for (m) in the one case the Deed is the title, and in the other the reservation, nor to any writ of Right of advowson, Quare impedit, or Assise of Darreine presentment (for there was a Parson of one of my Churches that had been Incumbent there above fifty yeeres, and died but lately) or any Writ of Right of Ward, or ravishment of Ward, &c. but they are left as they were before the Statute of 32. Hen. 8. But hereof thus much for the better understanding of Littleton shall suffice.
“from the time of King Richard the first.”
And that was intended from the first day of his reigne, for (from the time) being indefinitely, doth include the whole time of his reigne, which is to be observed.
“a Writ of right,”
Breve de recto, As writ of Right, so called, for that the words in the Writ of Right are, Quod fine dilatione plenum rectum teneas.
“title of prescription that was at the Common Law, . . . from time whereof the memory of men runneth not to the contrary.”
Docere oportet longum tempus, & longum usum illum, viz. qui excedit memoriam hominum, tale enim tempus sufficit pro jure.
“any proofe of the contrary,”
For if there bee any sufficient proofe of Record or writing to the contrarie, albeit it exceed the memorie, or proper knowledge of any man living, yet is it within the memorie of man: for memorie or knowledge is twofold First, By knowledge by proofe, as by Record or sufficient matter of writing. Secondly, by his owne proper knowledge. A Record or sufficient matter in writing are good memorialls, for Litera scripta manet. And therefore it is said, when we will by any record or writing commit the memory of any thing to Posterity, it is said tradere memoriae. And this is the reason that regularly a man cannot prescribe or alleage a Custome against a Statute, because that is matter of Record, and is the highest proofe and matter of Record in Law. But yet a man may prescribe against an Act of Parliament, when his Prescription or Custome in saved or preserved by another Act of Parliament.
There is also a diversity betweene an Act of Parliament in the negative and in the affirmative, for an affirmative Act doth not take away a custome as the Statutes of Wills of 32 and 34. Hen. 8. doe not take away a Custome to devise Lands, as it hath beene often adjudged. Moreover, there is a diversitre betweene Statutes that be in the negative, for if a Statute in the negative be declarative of the ancient Law, that is in affirmance of the Common Law, there as well as a man may prescribe or alleage a Custome against the Common Law, so a man may doe against such a Statute, for as our Author saith, Consuetudo, &c. privat communem legem. As the Statute of Magna Charta provideth, that no Leet shall be holden but twice in the yeere, yet a man may prescribe to hold it oftener, and at other times, for that the Statute (n) was but in affirmance of the Common Law.
So the Statute (o) of 34. Edw. 1. provideth that none shall cut downe any trees of his owne within a Forrest without the view of the Forrester: but inasmuch as this Act is in affirmance of the Common Law, a man may prescribe to cut downe woods within a Forrest without the view of the Forrester. And so was it adjudged in 16. Eliz. in the Exchequer by Sir Edward Sanders Chiefe Baron, and other the Barons of the Exchequer, as Sir John Popham Chiefe Justice of the Kings Bench reported to me.
In the Eire of the Forrest of Pickering before Willoughby, Hungerford and Hanbury, Justices Itinerants there, Anno 8. Edw. 3. I read (p) a claime made by Henry de Percy, Lord of the Manor of Semor within the said Forrest, the Forresters, Verderours, and Regarders found his claime to be true, viz. Quod praedictus Henricus de Percy, & omnes antecessores sui tenentes | maneriū praedictum à tempore quo non extat memoria & sine interruptione aliquali tenuerunt praedictū manerium cum pertinentiis extra regardum Forestae, & habuerunt Woodwardū portantem arcū & sagittas ad praesentandū praesentanda de venatione tantum, &c. & habuerunt in boscis suis de Semere forgeas, & mineras, & amputârunt, dederunt, & vendiderunt boscum suum infra manerium praedictum sine visu forestariorum pro voluntate sua, & fugarunt & ceperunt Vulpes, Lepores, Capriolos, &c. sicut idē Henricus Percy superius clamat. Which claime by prescription, and found as is aforesaid the Justices doubted onely of two points. The first forasmuch as the said Mannor was within the limits of the Forrest, it should not onely be Contra assisam Forestae, (o) for his Woodward to beare Bow and Arrowes, where by Law he ought to beare but an Hatchet and no Bow nor Arrowes within the Forrest, but also de facili cedere possit in destructionem ferarum, &c. and therefore doubted whether it might be claimed by prescription. Their second doubt was concerning fugationem, & captionem Capriolorum in boscis suis praedictis, eo quod est bestia venationis Forestae, & transgressores inde convicti finem facerent ut pro transgressione venationis, & for that difficultie the claime was adjourned into the Kings Bench. But of the other parts of the Prescription no doubt at all was made: and the like had beene allowed in the same Eire, as in the case of Thomas Lord Wake at Lydell, and of Gilbert of Acton, in the same Eire, Rot. 37. and of others.
“this is proved by the pleading.”
Note one of the best arguments or proofes in Law is drawne from the right entries or course of pleading, for the Law it selfe speaketh by good pleading, and therefore Littleton here saith, It is proved by the pleading, &c. as is pleading were ipsius legis viva vox.
“insomuch that such title of prescription was at the common law, &c.”
Note all the prescriptions that were limited from a certaine time were by Act of Parliament, as from the time of Henry the First which was the first time of limitation set downe by any Act of Parliament, and so from the reigne of Richard the First &c. But this prescription of time out of memory of man was (as Littleton here saith) at the Common Law, and limited to no time. Also here is implyed a maxime of the Law, viz. That whatsoever was at the Common Law, and is not ousted or taken away by any Statute, remaineth still.
The Law of England in divided, as hath beene said before, into three parts, the Common Law, which is the most generall and ancient Law of the Realms; of part whereof Littleton wrote; 2. Statutes or Acts of Parliament; and 3. particular Customes (whereof Littleton also maketh some mention) I say particular, for if it be the generall Custome of the Realme, it is part of the Common Law.
The Common Law hath no controller in any part of it, but the high Court of Parliament, and if it be not abrogated or altered by Parliament, it remaines still, as Littleton here saith, The Common Law appeareth in the Statute of Magna Charta and other ancient Statutes (which for the most part are affirmations of the Common Law) in the originall writs, in judiciall Records, and in our bookes of termes and yeers. Acts of Parliament appeare in the Rols of Parliament, and for the most part are in print. Particular customes are to be proved.
Villenage, part 18
| The fourth is, a man who by judgement given against him upon a Writ of Praemunire facias, &c. is out of the Kings protection, if hee sue any action, and the tenant or the defendant shew all the Record against him, hee may aske judgement if hee shall be answered; for the Law and the Kings writs be the things by which a man is protected and holpen, and so, during the time that a man in such case is out of the Kings protection, hee is out of helpe and protection by the Kings Law, or by the Kings writ.
Some hold an opinion that the writ is called a Praemunire, because it doth fortifie Jurisdictionem jurium regiorum Coronae suae of the Kingly Lawes of the Crown against foreine jurisdiction, and against the usurpers upon them, as by divers Acts of Parliaments appeare. But in truth it is so called of a word in the Writ; for the words of the Writ be, Praemunire facias praefatum A.B. &c. quod tunc sit coram nobis, &c. where Praemunire is used for praemonere, and so do divers interpreters of the Civill and Canon Law use it, for they are praemunit that are praemoniti. By the Statutes before quoted in the margent you shall perceive what statutes were made before Littleton wrote, and what have beene ordained since to make offences in danger of a Praemunire.
“out of the King’s protection,”
The judgement in a Praemunire is that the Defendant shall be from thenceforth out of the king’s protection, and his Lands and Tenements, goods and chattels | forfeited to the king, & that his body shall remaine in prison at the Kings pleasure. So odious was this offence of Praemunire, that a man that was attained of the same, might have beene slaine by any man without danger of Law, because (k) it was provided by Law, that a man might do to him as to the Kings enemy, and any man may lawfully kill an enemy. But Queene Elizabeth and her Parliament, liking not the extreme and inhumane rigor of the Law in that point, did provide that it should not be lawfull for any person to slay any person in any manner attainted in or upon any Praemunire, &c. Tenant in taile is attainted in a Praemunire, he shall forfeit the land but during his life, for albeit the Stature of 16. R.2. ca.5. enacteth that in that case their lands and tenements, goods and chattels, shall be forfeit to the King, that must be understood of such an estate as he may lawfully forfeit, and that is during his own life. And these generall words doe not take away the force of the Statute De donis conditionalibus, but he shall forfeit all his Fee simple lands, states for life, goods and chattels, and so was it resolved in Trudgins case.
“for the Law and the King’s writs.”
There bee three things as here it appeareth whereby every subject is protected, viz. Rex, Lex, & Rescripta Regis, the King, the Law, and the Kings Writs. The Law is the rule, but it is mute; The King judgeth by his Judges, and they are the speaking Law, Lex loquens. The processe and the execution which is the life of the Law consisteth in the Kings Writs. So as he that is out of the protection of the King cannot be aided or protected by the Kings Law, or the Kings Writ, Rex tuetur legem, & lex tuetur jus. (1) Besides, men attainted in a Praemunire every person that is attained of high treason, petit treason or felony,Protection: Generall, Particular. is disabled to bring any action, for he is (*)Extra legem positus, and is accounted in Law Civiliter mortuus.
It is to be understood that there is a generall protection of the King whereof Littleton here speaketh, and this extends generally to all the Kings loyall Subjects, Denizens and Aliens within the Realme, whose offences have not made them uncapable of it, as before it appeareth. And there is a particularprotection by Writ, which is one of the Kings Writs that Littleton here speaketh of. This particular protection is of two sorts, one, to give a man an immunitie or freedome from actions or suits, the second, for the safety of his person, servants and goods, lands and tenements whereof he is lawfully possessed from violence, unlawfull molestation or wrong. The first is of right, and by Law; the second are all of grace, (saving one) for the generall protection implyeth as much. Of the first sort some are Cum clausula (volumus), so called because the Writ hath this word (volumus) in it, viz. Volumus quod interim sit quietus de omnibus placitis & querelis, &c. And the other a protection Cum clausula, (nolumus) so called for the like reason. Of protections Cum clausula (volumus) for staying of pleas and suites there be foure kinds, viz. Quia profecturus (so called by reason they are part of the words of the Writ) 2. Quia moraturus (so named for distinction for the like cause) 3. Quia indebitatus nobis existit of the matter. 4. When any sent into the Kings service in warre is imprisoned beyond Sea. The former are for staying of actions and suits in generall. The third is for staying of suits of the subject for debts and duties due by the Kings debtor to them. Of the fourth you shall reade hereafter in this place. For the former two these nine things are to be observed. First, for what cause they are to be granted. 2. For what persons they are allowable. 3. A threefold time is to be considered, viz. the time of the purchase of them, the time of the continuance of them, and the time when they shall be cast. 4. In what place the service is to be performed. 5. Inwhat actionstheseprotectionsareallowable. 6. Under what seale and to whom they are directed. 7. Who is to allow, or disallow of them. 8. By whom they are to be cast and in what manner. 9. How upon just cause they may be repealed or disallowed. I must but point at these matters, to make the studious reader capable of them, and referre him to the Books and other Authorities at large being excellent points of learning.
As to the first, it is of two natures, the one concerns services of war, as the Kings souldier, &c. the other wisdome and counsell, as the Kings Ambassador or Messenger Pro negotiis regni, both these being for the publique good of the Realme, private mens actions and suits must be suspended for a convenient time; for Jura publica anteferenda privatis; and againe, Jura publica ex privatis promiscue decidi non debent, (a) And the cause of granting of the protection must be expressed in the protection, to the end it may appeare to the Court that it is granted Pro negotiis regni & pro bono publico, (b) or as some others say, pur le common profit del realme. And Britton saith, Nostre service, sicome estre en nostre force, & le defence de nous & de nostre. people, &c. , A man in execution in salva custodia shall not be delivered by a Protection.
(c) To the second these protections are not allowable onely for men of full age, but for men within age, and for women, as necessarie attendants upon the Camp, and that in three cases, Quia lotrix, seu nutrix, seu obstetrix.
(d) Corporations aggregate of many are not capable of these two protections, either Profecturae, or Moraturae, because the Corporation itselfe is invisible, and resteth onely in | consideration of Law. (c) Protection for the Husband shall serve also for the Wife.
(f ) Albeit the Vouchee, Tenant by resceit, Preier in aid, or Garnishee bee no parties to the Writ, yet before they appeare, a Protection may be cast for them, because when the Demandant grants the Vouchor or receitinjudgement of Law they are made privie, but if the Demandant counterplead the Vouchor or receit, then untill it be adjudged for them, and so they privie in Law, a Protection cannot be cast for them. And so it is of the Garnishee, a Protection may be cast for him at the day of the returne of the Scire facias. (g) No Protection can be cast for the Demandant or Plaintife because the Tenant or Defendant cannot sue a Resommons, or a Re-attachment, but the Plaintife onely that sued out the sommons or attachment, &c. must sue also the re-sommons or re-attachment. And so it is of an Actor in nature of a Plaintife, &c. and the Garnishee after appearance, and an avowant, and the like. (h) An Officer of the Kings receit, or any other Officer in any Court of Record, whose attendance is necessary for the Kings service, or administration of Justice being sued, cannot have a Protection cast for him.
(i) In every action or plea, reall or mixt, against two (where a Protection doth lie) a Protection cast for the one doth put the plea without day for all. So it is in debt, detinue, and account. But in trespasse, or in any action in nature of trespasse, which is in Law severall, where every one may answer without the other, there a Protection cast for the one shall serve for him onely, unlesse they joyne in pleading, or if they plead severall pleas, and one Venire facias is awarded against all, there a Protection cast for one, shall put the plea without day for all, and therefore in former times the Plaintife used to sue out severall Venire facias in those cases for feare of a Protection, &c.
(k) As to the threefold time, First, a Protection profecturae, regularly must not be purchased hanging the plea, but this faileth when he goeth in the Kings service in a Voyage royall; and that is twofold, either touching warre, and that onely is when the King himselfe or his Lieutenant, that is prorex goeth, or when any goeth in the Kings ambassage, Pro negotio regni, or for the marriage of the Kings daughter or the like, this also is called a Voyage royall. But a Protection Moraturae may be purchased, and cast pendente placito.
(l) Regularly a Protection cannot be cast, but when the partie hath a day in Court, and when if he made default, it should save his default: therefore when execution is to be granted against body, lands, or goods, no Protection can be cast; because the Defendant hath no day in Court. If a protection be cast at the Nisi prius for one, if before the day in banke it be repealed by Innotescimus, yet because it was once well cast, it shall save his default, but if the Protection be disallowed, either for variance, or that it lay not in the Action, or the like, there it shall turne to a default.
(m) If a man hath a Protection, notwithstanding plead a plea, yet at another day of continuance after that a Protection may be cast, so at a day after an Exigent, but after appearance he cannot cast a Protection in that Terme untill a new continuance be taken.
(n) Thirdly, no Protection, either Profecturae or Moraturae, shall indure longer than a yeer and a day next after the teste or date of it. And so it is of an Essoigne de service le Roy. If a Protection beare teste 7. die Januarii, and have allowance pro uno anno, the resommons, re-attachment or regarnishment may be sued 8. Januarii the next yeere, and yet that is the last day of the yeere.
And where Britton treating of an Essoigne beyond the Graecian Sea in a Pilgrimage, &c. saith thus, (o)Ascun gent nequident se purchasent nos letters de protection patents durable a un an, on a 2.ou a. 3. ans, & jalameyns font attorneys generals, ausi per nos letters patents: & ceux font bien & sagement, car nul grand Seignior ne chivalier de nostre realme ne doit prender chemyn sauns nostre conge, car issent poet le realme remainer disgarny de fort gente.
Three things are hereupon to be observed, First, that this was a protection of grace, whereof more shall be said hereafter. Secondly, that it was for the safetie of the great men of the realme, and that they should make general Attorneyes, so as no actions, or suits should be, thereby stayed. Thirdly, (by the way) that great men could not passe out of the Realme without the Kings licence. (p) A Protection granted to one, &c. untill he be returned from Scotland, was disallowed for the incertaintie of the time.
(q) To the fourth, the Protection as well Moraturae as Profecturae must be regularly to some place out of the Realme of England, and that must be to some certaine place, as super salva custodia Caliciae, &c. and not to Carlisle or Wales, which are within the Realme, or the like. But it may be to Ireland or Scotland, because they are distinct Kingdomes; or to Calice, Aquitaine, or the like. But a Protection, Quia moratur super altum mare, will not serve, not only because (as some thinke) that mare non moratur, but for the incertaintie of the place, and for that a great part of the sea is within the Realme of England.
(r) To the fifth. In some actions, Protections shall not be allowed by the Common Law, & in some actions they are ousted by Act of Parliament, Actions at the Common Law, as all Actions that touch the Crowne, as Appeales of Felony, and Appeales of Mayhem. (f) So | where the King is sole partie no Protection is to be allowed, in like manner in a Decies tantum, where the King and the Subject are Plaintifes, but in late Acts of Parliament, Protections in personall actions are expressly ousted. A Protection may be cast against the Queene the Consort of the King.
(t) In a writ of Dower unde nihil habet, no protection is allowable, because the Demandant hath nothing to live upon. Otherwise it is in a writ of right of Dower. Likewise in a Quare impedit, or Assise of Darreine presentment a protection lieth not, for the eminent danger of the laps. Neither lieth a Protection in an Assise of Novel disseisin, because it is festinum remedium, to restore the Dissesee to his freehold, whereof he is wrongfully and without judgement disseised. (u) In a Quare non admisit; a Protection is not allowable, because it is grounded upon the Quare impedit, and the like in a Certificate upon Assise for the like reason, and sic de similibus. Aprotection, Quia profecturus is not allowable (as hath beene said) in any Action commenced before the date of the Protection, unlesse it bee in a Voyage Royall. (w) An Infant is vouched, and at the Pluries venire facias, a Protection was cast for the Infant, and disallowed, because his age must be adjudged by the inspection of the Court.
(x) By act of Parliament no Protection shall be allowed in an attaint. (But at the Common Law a Protection for one of the Petite Jurie had put the plea without day for all) nor in an Action against a Gaoler for an escape, nor for victuals taken or bought upon the voyage or service, nor in pleas of Trespasse, or other contract made or perpetrated after the date of the same Protection.
(y) In a writ of Error brought by an Infant upon a fine levied, the Plaintife sued a Scire facias against the Conusee, for whom a Protection was cast, and the Court examined the age of the Plaintife, and by inspection adjudged him within age, and recorded the same, and then allowed the Protection, and this can be no mischiefe to the Plaintife, whereupon it followeth, that albeit the Plaintife dieth afterwards before the fine reversed, yet after his age adjudged and recorded, his heirs shall in that case reverse the fine for the nonage of his Ancestor. (a) And so it was resolved in the case of Kekewiche in a writ of Error brought by him by the opinion of the whole Court of the Kings Bench, otherwise it is, if the Plaintife dieth before his age inspected.
(b) Note in judiciall Writs, which are in nature of Actions, where the partie hath day to appeare and plead, there Protection doth lie, as in Writs of Scire facias upon Recoveries, Fines, Judgements, &c. albeit by the Statute of W.2. Essoignes and other delayes be ousted in writs of Scire facias, yet a Protection doth lie in the same. So it is in a Quid Juris clamat, and the like. But in Writs of Execution, as Habere facias seisinam, Eleit, Execution upon a Statute, Capias ad satisfaciendum, Fieri facias, and the like, there no Protection can be cast for the Defendant, because he hath no day in Court, and the Protection extendeth only ad placita & querelas, and must be allowed by the Court, which cannot bee but upon a day of appearance.
(c) In a writ of Disceit brought against him that obtained and cast a Protection upon an untrue surmise in delay of the plaintife, that protection is allowable. In an Action brought upon the Statute of Labourers a Protection doth lye, & sic de similibus.
(d) To the sixth, no Writ of Protection can be allowed unlesse it be under the great Seale, (*) and it is directed generally.
(e) To the seventh, the Courts of Justice where the Protection is cast, are to allow, or disallow of the same, be they Courts of Record, or not of Record, and not the Sherife, or any other Officer or Minister.
(f ) To the eighth, the Protection may be cast either by any stranger, or by the partie himselfe, an Infant, Feme Covert, a Monke, or any other may cast a Protection for the Tenant or Defendant, and this difference there is when a stranger casteth it, and when the Tenant or Defendant casteth it himselfe. (g) For the Defendant or Tenant casting it, he must shew cause wherefore he ought to take advantage of the Protection, but an estranger need not shew any cause, but that the Tenant or Defendant is here by Protection.
(h) As to the ninth, A protection may be avoided three manner of waies: First, upon the casting of it before it be allowed. Secondly, by repeale thereof after it be allowed: by disallowing of it many wayes, as for that it lyeth not in that Action, or that he hath no day to cast it, or for materiall variance between the Protection and the Record, or that it is not under the great Seale, or the like. (i) Thirdly, After it be allowed by Innotescimus, as if any tarrie in the Countrey without going to the service for which he was retained, over a convenient time after that he had any Protection, or repairs from the same service, upon information thereof to the Lord Chancellor, he shall repeale the Protection in that case by an Innotescimus. But a Protection shallnotbeavoided by an Averment of the partie of that case, because the Record of the Protection must be avoided by matter of as high nature.
| (k) There is a clause in the Protection to this effect, Praesentibus minime valituris, si contingat ipsum, &c. a custodia castri praedicti recedere. Or si contingat iter illud non arripere, vel infra illum terminum à partibus transmarinis redire. Whereupon there be two conclusions to be observed.
First, That though the protection be allowed by the Court for a yeere, yet if it be repealed by an Innotescimus that the Resommons or Re-attachment shall be granted upon the Repeale within the yeare, for the Protection that was allowed had the said clause in it. And of that opinion be our later Bookes, and the Repeale by Innotescimus should serve for little purpose, if the Law should not be taken so.
Secondly, That albeit he that had the Protection either Moraturae or Profecturae, returne into England, and haply be arrested and in prison, yet if he came over to provide Munition, Habiliments of warre, victuals, or other necessaries, it is no breach of the said conditionall clause, nor against the Act of 13. Richard 2. cap. 16. for that in judgement of Law comming for such things are of necessitie for the maintenance of the warre, moratur, according to the intention of the Protection and Statute aforesaid. And thus much of the two first Protections, Cum clausula volumus, Protecturae and Moraturae.
(l) As to the third Protection, Cum clausula volumus, the King by his Prerogative regularly is to be preferred in payment of his dutie of debt by his Debtor before any Subject, although the Kings debt or dutie be the latter, & the reason hereof is, for that Thesaurus Regis est fundamentum belli, & firmamentum pacis. And thereupon the Law gave the King remedy by Writ of Protection to protect his Debtor, that he should not be sued or attached untill hee paid the Kings debt, but hereof grew some inconvenience, for to delay other men of their suits, the Kings debts were the more slowly paid. And for remedie thereof (m) it is enacted by the Statute of 25.E.3. that the other Creditors may have their actions against the Kings Debtor and to proceed to Judgement, but not to Execution unlesse he will take upon him to pay the Kings debt, and then he shall have Execution against the Kings Debtor for both the two debts.
This kinde of Protection hath (as it appeareth) no certaine time limited in it. But in some cases the subject shall be satisfied before the King (n) for regularly whensoever the King is intitled to any fine or duty by the suit of the partie, the party shall be first satisfied, as in a Decies tantum, And so if in Action of Debt the Defendant deny his Deed, and it is found against him he shall pay a fine to the King, but the Plaintife shall be first satisfied, and so in all other like cases. And so it is in Bills preferred by subjects in the Starchamber, their costs and damages (if any be) shall be answered before the Kings fine, as it is daily in experience.
The fourth protection, Cum clausula volumus, is when a man sent into the Kings Service beyond Sea is imprisoned there, so as neither Protection, Profecturae or Moraturae, will serve him, and this hath no certaine time limited in it, (o) whereof you shall read at large in the Register, and F.N.B.
(p) Now are we at length come to Protections, Cum clausula nolumus, All which saving one, are of grace, and as hath beene said are implyed under the generall protection, for as Fitzherbert saith, every loyall subject is in the Kings Protection. Of these Protections of grace, you shall not read much in our yeere Books, because they stayed no Actions or Suits; (q) Of the divers formes, of these you shall read at large in the Register, and F.N.B. which were too long and needlesse to be here recited.
The Protection Cum clausula nolumus, that is, of right, is, that every spirituall person may sue a Protection for him and his goods, and for the fermors of their lands and their goods, that they shall not be taken by the Kings Purveyor, not their carriages or chattels taken by other Ministers of the King, which Writ both recite the Statute of 14.E.3.
Of these Protections I cannot say any thing of mine owne experience, for albeit Queene Elizabeth maintained many warres, yet she granted few or no Protections, and her reason was, that he was no fit subject to be imployed in her service, that was subject to other mens actions, lest she might be thought to delay Justice.
Conditional Estates, part 17
| And therefore it wil be a good & sure thing for him that will make such feoffment in morgage, to appoint an especiall place where the money shall be payd, and the more speciall that it bee put, the | better it is for the feoffor. As if A. infeoffe B. to have to him and to his heires, upon such condition, That if A. pay to B. on the Feast of Saint Michael the Arch-Angell next comming, in the Cathedrall Church of Saint Pauls in London, within foure houres next before the houre of Noone of the same feast, at the Rood loft of the Rood of the North doore, within the same Church, or at the Tombe of Saint Erkenwald, or at the doore of such Chappell, or at such a pillar within the same Church, that then it shall bee lawfull to the aforesaid A. and his heires to enter, &c. In this case he needeth not to seek the Feoffee in an other place, nor to bee in any other place, but in the place comprised in the Indenture, nor to bee there longer than the time specified in the same Indenture, to tender or pay the money to the feoffee, &c.
Here is good counsell and advice given, to set downe in Conveyances every thing in certainty and particularity, for Certainty is the mother of Quietness and Repose, and Incertainty the cause of variance and contentions: and for obtaining of the one, and avoiding of the other, the best meane is, in all assurances to take counsell of learned and well experienced men, and not to trust only without advice, to a Precedent. For as the rule is concerning the state of a mans body, Nullum medicamentum est idem omnibus, so in the state and assurance of a mans Lands, Nullum exemplum est idem omnibus.
“at the Tombe of Saint Erkenwald,”
This Erkenwald was a younger sonne of Anna King of the East Saxons, and was first Abbot of Chersey in Surry which hee had founded, and after Bishop of London, a holy and devout man, and lyeth buryed in the South Ile, above the Quire in Saint Pauls Church, where the Tombe yet remaineth that Littleton speaketh of in this place: he flourished about the yeere of our Lord, 680.
The residue of this Section, and the (&c.) are evident.
Conditional Estates, part 41
| Also albeit a man cannot in any action pleade a condition which toucheth & concernes a freehold, without shewing writing of this, as is aforesaid, yet a man may be aided upon such a condition by the verdict of 12. men taken at large in an assise of Novel disseisin, or in any other action where the Justices will take the verdict of 12. Jurors at large. As put the case, a man seised of certaine land in fee, letteth the same land to another for terme of life without deed, upon condition to render to the Lessor a certaine rent, and for default of payment, a re-entrie, &c. by force whereof the lessee is seised as of freehold, and after the rent is behinde, by which the lessor entreth into the land, and after the lessee arraigne an Assise of Novel Disseisin of the land against the Lessor, who pleads that he did no wrong nor disseisin, and upon this the Assise is taken; in this case the Recognitors of the Assise may say and render to the Justices their verdict at large upon the whole matter, as to say that the defendant was seised of the land in his demesne as of fee, and so seised, let the same land to the Plaintife for terme of his life, rendring to the lessor such a yeerely rent payable at such a feast, &c. upon such condition, that if the rent were behind at any such feast at which it ought to bee payd, then it should bee lawfull for the Lessor to enter, &c. by force of which lease the Plaintife was seised in his demesne as of freehold, and that afterwards the Rent was behind at such a feast, &c. by which the lessor entred into the land upon the possession of the lessee, and prayed the discretion of the Justices if this bee a disseisin done to the Plaintife or not. Then for that it appeareth to the Justices that this was no disseisin to the plaintife, insomuch as the entrie of the Lessor was congeable on him; the Justices ought to give judgement that the plaintife shall not take any thing by his writ of Assise. And so in such case the lessor shall bee ayded, and yet no writing was ever made of the Condition. For aswel as the Jurors may have conusance of the lease, they also aswell may have conusance of the Condition which wasdeclared&rehearsed upon the lease.
“verdict of 12. men.”
Veredictum quasi dictum veritatis, as judicium est quasi juris dictum. ,Et sicut ad quaestionem juris, non respondent juratores, sed judices: sic ad quaestionem facti non respondent judices sed juratores. For Jurors are to try the fact, and the Judges ought to judge according to the Law that riseth upon the | fact, for Ex facto jus oritur.
“taken at large.”
There bee two kinds of verdicts, viz. one generall and another at large or especiall. As in an Assise of Novel disseisin brought by A. against B. the Plaintife makes his plaint, Quod B. disseisivit cum de 20. acris terrae cum pertinentiis, the Tenant pleads, Quod ipse nullam injuriam seu disseisinam praefato A. inde fecit, &c. the Recognitors of the Assise doe finde Quod praedict. A. injuste & sine judicio disseisivit praedict. B. de praedict. 20. acris terrae cum pertinent’ &c. This is a generall verdict. The like Law it is if they finde it negatively. And Littleton here putteth a case of a Verdict at large or a speciall Verdict, and it is therefore called a speciall Verdict or a Verdict at large, because they finde the speciall matter at large, and leave the judgment of Law therupon to the Court, of which kinde of Verdict it is said, (l)Omnis conclusio boni & veri judicii sequitur ex bonis & veris praemissis & dictis Juratorum.
And though Littleton here putteth his case of a Verdict at large upon a generall issue (which in the case hee puts it was necessary for the Tenant to plead, yet when Issue is joyned upon some speciall point, the Jury, as shall bee said hereafter in this Section, may finde the speciall matter, ifitbedoubtfull in Law, for as much as doubt may arise upon one point upon the generall issue as upon the generall issue. And as a speciall verdict may be found in Common | Pleas, so may it also bee found in Pleas of the Crowne, orcriminall causes that concerne life or member.
A Verdict finding matter incertainely or ambiguously is insufficient, and no judgement shall be given thereupon, as if an Executor plead Pleinment administre, and issue is joyned thereupon, and the Jury finde, that the Defendant have goods within his hands to bee administered, but finde not to what value, this is uncertaine, and therefore insufficient.
A Verdict that finds part of the issue, and finding nothing for the residue, this is insufficient for the whole, because they have not tryed the whole issue wherewith they are charged. As if an information or intrusion bee brought against one for intruding into a mesuage, and 100. acres of land, upon the generall issue the Jury finde against the Defendant for the land, but saith nothing for the house, this is insufficient for the whole, & so was it twice adjudged. (m) But if the Jury give a verdict of the whole issue, and of more, &c. that which is more is surplusage, and shall not (a) stay judgement, for Utile per inutile non vitiatur, but necessary incidents required by law, the Jury may find.
If the matter and substance of the issue bee found, it is sufficient as Littleton himself sayeth hereafter.
Estoppells which bind the interest of the Land, as the taking of a Lease of a mans owne Land by Deed indented, and the like, being specially found by the Jury, the Court ought to judge according to the speciall matter, for albeit Estoppels regularly must be pleaded and relied upon by an apt conclusion, and the Jury is sworne ad veritatem dicendam, yet when they finde veritatem facti, they pursue well their oath, and the Court ought to adjudge according to Law. (b) So may the Jury finde a warranty being given in evidence, though it be not pleaded, because it bindeth the right, unlesse it be in a Writ of Right, when the Mise in joyned upon the meere right.
| (c) After the verdict recorded, the Jury cannot vary from it, but before it be recorded they may vary from the first offer of their verdict, and that verdict which is recorded shall stand: also they may vary from a privy Verdict.
An issue found by Verdict shall alwaise be intended true untill it be reversed by attaint, and thereupon upon the attaint no Supersedeas is grantable by Law.
If the Jury after their evidence given unto them at the Barre, doe at their owne charges eat or drink either before or after they be agreed on their Verdict, it in finable, but it shall not avoyd the Verdict: but if before they be agreed on their Verdict, they eat or drink at the charge of the Plaintife, if the Verdict bee given for him, it shall avoyd the Verdict: but if it be given for the Defendant, it shal not avoyd it, & sic è converso. (d) But if after they be agreed on their Verdict, they eat or drinke at the charge of him for whom they doe passe, it shall not avoyd the Verdict.
(e) If the Plaintife after evidence given and the Jury departed from the Barre, or any for him, doe deliver any Letter from the Plaintife to any of the Jury concerning the matter in Issue, or any Evidence, or any escrowle touching the matter in issue, which was not given in Evidence, it shall avoyd the Verdict, if it be found for the Plaintife, but not if it be found for the Defendant, & sic è converso. But if the Jury carry away any writing unsealed, which was given in evidence in open Court, this shall not avoyd their Verdict, albeit they should not have carryed it with them.
By the Law of England a Jury after their Evidence given upon the Issue, ought to bee kept together in some convenient place, without meat ordrinke, fire or candle, which some Bookes (f) call an imprisonment, and without speech with any, unlesse it be the Bailife, and with him onely if they be agreed. After they be agreed, they may in causes between party and party give a Verdict, and if the Court be risen, give a privy Verdict before any of the Judges of the Court, and then they may eat and drinke, and the next morning in open Court they may either affirme or alter their privy Verdict, and that which is given in Court shall stand. But in criminall cases of life or member, the Jury can give no privy Verdict, but they must give it openly in Court. And hereby appeareth another division of Verdicts, viz a publique Verdict openly given in Court, and a privy Verdict, given out of the Court before any of the Judges, as is aforesaid.
A Jury sworne and charged in case of life or member, cannot be discharged by the Court or any other, but they ought to give a Verdict. And the King cannot be Non-suit, for he is in Judgement of Law ever present in Court: but a common person may be non-suit.
“in an assise of Novel disseisin or in any other action. ”
Here it is to be observed, That a speciall Verdict, or at large may be given in any Action, and upon any issue, be the Issue generall or speciall: and albeit there be some contrary opinions in our Bookes, yet the Law is now settled in this poynt.
“by which the lessor entereth.”
Here it appeareth that the condition is executed by re-entry, and yet the Lessor after his re-entry shall not by the opinion of Littleton, plead the Condition without shewing the Deed, because he was party and privy to the condition: for the parties must shew forth the Deed, unlesse it be by the act and wrong of his adversary, as hath been said, (m) but an estranger which is not privy to the condition, nor claymeth under the same, as in the cases abovesayd appeareth, shal not after the condition is executed in pleading, be inforced to shew forth the Deed: and by this diversity all the bookes and authorities in law which seeme to bee at variance are reconciled. See also for this matter the Section next following.
“the Recognitors of the Assise may say.”
Here it appeareth that the Jurors may find the fact, albeit the Deed bee not shewed in evidence, and the rather, for that the Condition upon the Livery (as hath been said) is good albeit there be no Deed at all.
“and prayed the discretion of the Justices.”
That is to say, They, (having declared the speciall matter) pray the discretion of the Justices, which is as much to say, as, That they would discerne what the Law adjudgeth thereupon, whether for the Demandant or for the Tenant: for as by the authority of Littleton, Discretio est discernere per legem, quid sit justum, that is, to discerne by the right line of law, and not by the crooked cord of private opinion, which the vulgar call Discretion: Si à jure discedas, vagus eris, & erunt omnia omnibus incerta: and therefore Commissions that authorise any to proceed,secundum sanas discretiones vestras, is as much to say, as, Secundum Legem & consuetudinem Angliae.
“For as well as the jurors may have conusance.”
Hereby it appeareth, That they that have Conusance of any thing, are to have Conusance also all Incidents and Dependants thereupon, for an Incident is a thing necessarily depending upon another.
| If a Deed bee made and dated in a forraine Kingdome, of lands within England, yet if Livery and Seisin be made secundum formam cartae, the land shall passe, for it passeth by the Livery.
Conditional Estates, part 47
| The making of an Indenture in the first person is, as in this forme. To all Christian people to whom these presents indented shall come, A. of B. sends greeting in our Lord God everlasting. Know yee me to have given, granted, and by this my present Deed indented, confirmed to C. of D. such land, &c. Or thus: Know all men present and to come, that I A. of B. have given, granted, and by this my present Deed indented, confirmed to C. of D. such land, &c. To have and to hold, &c. upon Condition following, &c. In witnesse whereof, as well I the said A. of B. as the aforesaid C. of D. to these Indentures have interchangeably put our Seales. Or thus: In witnesse whereof I the aforesaid A. to the one part of this Indenture have put my Seale, and to the other part of the same Indenture, the said C. of D. hath put his Seale, &c.
Here Littleton sets downe three formes of deeds indented in the first person, Brevis via per exempla, longa per praecepta. It is requisite for every Student to get Precidents and approved formes, not onely of deeds according to the example of Littleton, but of Fines, and other Conveyances, and Assurances, and especially of good and perfect pleading, and of the right entries, and formes of Judgements, which will stand him in great stead, both while he studies, and after when he shall give counsell. It is safe thing to follow approved precidents, for Nihil simul inventum est, & perfectum.
Descents, part 27
| Also it is said that if a man be seised of Lands in fee by occupation in time of warre, and thereof dyeth seised in the time of warre, and the tenements descend to his heire, such discent shall not oust any man of his entry, and of this a man may see in a Plea upon a Writ of Aiel, 7.E.2.
“by occupation in time of Warre,”
First it is necessary to bee knowne, what shall bee said, Time of peace, Tempus pacis: and what shall bee said, Tempus belli, sive guerrae, time of warre. Tempus pacis est quan-|-do Cancellaria & aliae Curiae Regis sunt apertae, quibus lex fiebat cuicunque prout fieri consuevit. , And so it was adjudged in the case of Roger Mortimer, and of Thomas Earle of Lancaster. Utrum terra sit guerrina necne, naturaliter debet judicari per recorda Regis, et eorum, qui curias Regis per legem terrae custodiunt, & gubernant, sed non alio modo. ,
And therefore when the Courts of Justce be open, and the Judges and Minsters of the same may by Law protect men from wrong and violence, and distribute Justice to all, it is said to be time of peace. So, when by invasion, Insurrection, Rebellions, or such like, the peaceable course of Justice is disturbed and stopped, so as the Courts of Justice bee as it were shut up, Et silent leges inter arma, then it is said to be time of war. And the tryall hereof is by the Records, and Judges of the Court of Justice, for by them it will appeare, whether Justice had her equall course of proceeding at that time or no, and this shall not be tried by Jury.
If a man be disseised in time of peace, and discent is cast in time of warre, this shall not take away the entry of the disseisee.
Item tempore pacis, quod dicitur ad differentiam eorum quae fuerunt tempore belli, quod idem est, quod tempore guerrino, quod nihil differt a tempore juris, & injuriae, est enim tempus injuriae, cum fuerunt oppressiones violentae quibus resisti non potest, & disseisinae injustae. ,
So as hereby it also appeareth, that time of peace is the time of law and right, and time of warre is the time of violent oppression, which cannot be resisted by the equall course of Law. And therefore in all reall actions, the expleas, or taking of the profits are laid Tempore pacis, for if they were taken Tempore belli, they are not accounted of in Law.
Occupation is a word of Art, and signifieth a putting out of a mans Freehold in time of warre, and it is all one with a disseisin in time of peace, saving that it is not so dangerous, as it appeareth have by Littleton, and therefore the Law gave a writ in that case of Occupavit, so called, by reason of that word in the Writ, in stead of disseisivit, in the Assise of Novel dissesin, if the dessesin had beene done in time of peace, whereby it appeareth, how aptly both in this, and in all other places, Littleton thorow his whole Booke speaketh. But albeit Occupatio whereof Littleton here speaketh, is used only in the said Writ, and in none other, (that I can finde or remember) yet hath it been used commonly in Conveyances and Leases, to limit or make certaine precedent words ad tunc in tenura & occupatione. But occupaitio is applyed to the possession, be it lawfull or on unlawfull; It hath also crept into some Acts of parliament, as 4 H. 7.cap. 19. 39. Eliz. cap. 1 and others, and occupare, is sometime taken to conquer.
“and of this a man see in a Plea upon a Writ of Aiel, [year] 7.E.2.”
Hereby it appeareth, that ancient termes or yeares, after the example of Littleton, are to bee cited and vouched, for confirmation of the Law, albeit they were never printed, and that of those yeares, those especially of E. 1. H. 3. &c. are worthy of the reading and observation, a great number of which I have sene and observed, which in mine opinion doe give a great light, not onely to the understanding and reason of the Common Law, (which Fitzherbert either saw not, or were by him omitted) but also to the true exposition of the ancient Statutes, made in those times, yet mine advice is, that they be read in their time: for after our Student is enabled and armed to set on our yeere Bookes, or reports of the Law, let him reade first the latter reports, for two causes: First, for that for the most part the latter Judgements and Resolutions are the surest, and therefore it is the best to season him with them in the beginning, both for the settling of his judgement, and for the retaining of them in memory. Secondly, for that the latter are more facile and easier to be understood, than the more ancient: but after the reading of them, then to read these others before mentioned, and all the ancient Authors that have written of our Law; for I would wish our Student to be a compleat Lawyer. But now to returne. As it is in case of discent, so it is in case of presentation, for no usurpation in time of warre putteth the right Patron out of possession, albeit the incumbent come in by institution and induction: And time of war doth not only give priviledge to them that be in warre, but to all others within the Kingdome, and although the admission and institution be in time of peace, yet if the presentment were in time of warre, it putteth not the right Patron out of possission.
Releases, part 20
| Another cause they alledge, That if such Land bee worth forty shillings a yeare, &c. then such Feoffor shall bee sworne in Assise and other enquests in Plees reals, and also in Plees personals, of what great summe soever the Plaintiffe will declare, &c. And this is by the Common Law of the land, Ergo this is for a great cause, and the cause is, for that the Law will that such feoffors and their Heires ought to occupie, &c. and take and enjoy all manner of profits, issues, and revenues, &c. as if the Lands were their owne without interruption of the Feoffees, notwithstanding such Feoffement, Ergo, the same Law giveth a privity betweene such Feoffors and the Feoffees upon confidence, &c. for which causes they have said, That such releases made by such Feoffees upon confidence to their feoffor or to his heires, &c. so occupying the Lands, shall be good enough: and this is the better opinion, as it seemeth.
Quære, for this seemeth no Law at this day.
By the Statute of 2. Hen. 5. cap. 3. Statute. 2. it is enacted, That in three cases, he that passeth in an Enquest, ought to have Lands and Tenements to the value of fortie shillings, viz. First, Upon tryall of the death of a man. Secondly, in Plea reall betweene party and party. And thirdly, In Plea personall, where the debt, or the dammages in the Declaration amount unto fortie Markes. And it is worth the noting, That the Judges that were at the making of that Statute did construe it by equity: for where the Stature speakes in the disjunctive debt or dammages, they adjudged that where the debt and dammages amounted to forty Markes, that it was within the Statute. Fortescue (f ) saith, Ubi damna vel debitum in personalibus Actionibus non excedunt quadraginta Marcas monetae Anglicanae, hinc non requiritur, quod Juratores in Actionibus hujusmodi tantum expendere possint: habebunt tamen terram vel redditum, ad valorem competentem, juxta discretionem justiciariorum, &c. And forasmuch as the time of the making of this Statute, the greater part of the Lands in England in those troublesome and dangerous times (when that unhappy controversie betweene the Houses of Yorke and Lancaster was begun) were in use. And the Statute was made to remedy | a mischiefe, that the Sheriffe use to return simple men of small or no understanding, and therefore the Statute provided, That hee should returne sufficient men, and albeit in Law the Land was the Feofees, yet for that they had it but upon trust, and Cesty que use, tooke the whole profits, as our Authour here saith, and in equity and conscience the Land was his, therefore the Judges for advancement and expedition of justice, extended the Statute (against the Letter) to Cesty que use, & not to the Feoffees.
(n) But note if a man hath a Freehold pur terme dauter vie, or is seised in his Wifes right, and is returned on a Jury, yet if after he be returned, Cesty que vie, or his wife die, he may be challenged, and so it is if after the returne the Lands be evicted.
“And this is by the Common Law . . .”
Here three things are to be observed. First, That the surest construction of a State is by the rule and reason of the common Law. Secondly, That uses were at the Common Law. Thirdly, That now seeing the Statute (g) of 27.H. 8.ca. 10. which hath been in enacted since Littleton wrote, hath transferred the possession to the use, this case holdeth not at this day, but this latter opinion before that Statute was good Law, as Littleton here taketh it.
“the same Law giveth a privity . . .”
Hereof it followeth, That when the Law gives to any man any estate or possession, the Law giveth also a privity & other necessaries of the same and Littleton concludeth it with an Illative, Ergo, mesme la Ley dont privitie, which is very observable for a conclusion in other cases.
And the (Quaere) here made in the end of this Section is not in the Originall, but added by some other, and therefore to be rejected.
Also since Littleton wrote, the said Statute of 2. H. 5. is altered: for where that Statute limited forty shillings, now a later Statute hath raised it to foure pounds, and so it ought to be contained in the Venire facias.
Nota, an Use is a Trust or Confidence reposed in some other, which is not issuing out of the Land, but as thing collaterall, annexed in privity to the estate of the Land, & to the person touching the Land, scilicet, that Cesty que use shall take the profit, and that the Terre-tenant shall make an estate according to his direction. So as Cesty que use had neither Jus in re, nor Jus ad rem, but for breach of trust his remedy was only by Sub poena, in Chancery: and yet the Judges for the cause aforesaid, made the said construction upon the said Statute.
Now how Jurors shall bee returned both in Common Plees, and also in Plees of the Crowne, and in what manner evidence shall be given to them, and how they shall be kept untill they give their verdict, you may read in Fortescue, & therefore need not to be here inserted.
Releases, part 37
| Also to prove that the graund Assise ought to passe for the demandant, in the case aforesaid I have often heard the reading of the statute of West[minster]. 2. which begunne thus: In casu quo vir amiserit per defaltam tenementum quod fuit jus uxoris suae, &c. that at the Common Law before the said Statute, if a lease were made to a man for terme of life, the remainder over in fee, and a Stranger by feigned Action recovered against the Tenant for life by default, and after the Tenant dyeth, he in the remainder had no remedie before the Statute, because he had not any possession of the Land.
“I have often heard the reading of the statute of West[minster]. 2.”
Here it is to bee observed, of what authority ancient Lectures or Readings upon Statutes were, for that they had five excellent qualities: First, They declared what the Common | Law was before the making of the Statute, as here it appeareth. Secondly, they opened the true sense & meaning of the Statute. Thirdly, their cases were briefe, having at the most one poynt at the Common Law, and another upon the Statute. Fourthly Plaine and Perspicuous, for then the honour of the Reader was to excell others in authorities, arguments, and reasons for proofe of his opinion & for confutation of the objections against it. Fifthly, they read, to suppresse subtill inventions to creepe out of the Statute. But now readings having lost the said former qualities, have lost also their former authorities, for now the cases are long, obscure, and intricate, full of new conceits, liker rather to Riddles than Lectures, which when they are opened they vanish away in the smoke, and the Readers are like to Lapwings, who seeme to be nearest their nests when they are farthest from them, and all their study is to finde nice evasions out of the Statute. By the authority of Littleton ancient Readings may be cited for proofe of the Law, but new Readings have not that honour, for that they are so obscure and darke.
“the statute of West[minster]. 2.”
Which is the third chapter.
“the remainder over in fee,”
Here is to be observed, that although the Statute speaketh of a Reversion, (a) yet by the authority of Littleton a remainder is within the Statute.
See the Statute of 14. Eliz. cap. 8. which provideth fully for him in the remainder.
Feint is a Participle of the French word Feindre, which is to feign or falsly pretend, so as a feint Action is a false Action.
“had no remedie before the Statute,”
(b) Here it appeareth by Littleton, That if a man maketh a Lease for life the remainder in fee, and tenant for life suffereth a recovery by default, that he in the remainder should not have a Formedon by the common law: for Littleton saith, That he had not any remedy before the Statute. Neither is there any such writ in that case in the Register, albeit in some Bookes mention is made of such a Writ.
Warranty, part 30
| The third cause is, when the condition is such, that if the elder sonne alien, &c. that his estate shall cease or be void, &c. then after such alienation, &c. may the Donor enter by force of such condition, as it seemeth, and so the donor or his heires in such case ought sooner to have the land then the second son, that had not any right before such alienation; and so it seemeth that such remainders in the case aforesaid are void.
Here it is to bee observed, that part of the condition that prohibiteth the alienation made by tenant in taile is good in Law, with such distinction as hath beene before said in the Chapter of Conditions. And the consequent of the Condition, viz. that the lands should remaine to another, &c. is void in Law, and by the opinion of Littleton the Donor may re-enter for the Condition broken, for utile per inutile non vitiatur: Which being in case of a Condition for the defeating of an estate, is worthy of observation.
And it is to bee noted, that after the death of the Donor, the Condition descendeth to the eldest sonne, and consequently his alienation doth extinguish the same for ever, wherein the weaknesse of this invention appeareth, and therefore Littleton here saith, that it seemeth that the Donor may re-enter, and speaketh nothing of his Heires. A man hath issue two sonnes, and maketh a Gift in taile to the eldest, the Remainder in fee to the puisne, upon condition, that the eldest shall not make any Discontinuance with Warranty to barre him in the Remainder, and if he doth, that then the puisne son and his heires shall re-enter, the eldest make a Feoffment in Fee with Warranty, the father dieth, the eldest sonne dieth without issue, the puisne may enter, but if the Discontinuance had beene after the death of the father, the puisne could not have entred. In this case foure points are to be observed. First, as Littleton here saith, the Entrie for the breach of the Condition is given to the father, and not to the puisne sonne. Secondly, | that by the death of the Father the condition descends to the elder Sonne, and is but suspended, and is revived by the death of the eldest Sonne without issue, and descendeth to the youngest Sonne. Thirdly, That the feoffment made in the life of the Father cannot give away a condition that is Collaterall, as it may doe a right. Fourthly, That a Warrantie cannot binde a title of Entrie for a condition broken, (as hath beene said) but if the discontinuance had been made after the death of the Father, it had extinct the condition: Which case is put to open the reason of our authors opinion.
In these last three Sections our Author hath taught us an excellent point of Learning, That when any innovation or new invention starts up, to trie it with the Rules of the common Law, (as our Author here hath done) for these be true Touchstones to sever the pure gold from the drosse and sophistications of novelties and new inventions. And by this example you may perceive, That the rule of the old common Law being soundly (as our Author hath done) applied to such novelties, it doth utterly crushthemandbringthemtonothing, and commonly a new invention doth offend against many rules and reasons (as here it appeareth) of the common Law, and the antient Judges and Sages of the Law have ever (as it appeareth in our Bookes ) suppressed innovations and novelties in the beginning, as soone as they have offered to creepe up, lest the quiet of the common Law might be disturbed: and so have Acts of Parliament done the like, whereof by the authorities quoted in the margent, you may in stead of many others, upon this occasion take a little taste. But our excellent Author, in all his three Bookes, hath said nothing but Ex veterum sapientium ore, et more.
fee Warranty, part 35
| Also it is spoken in the end of the said statute of Glou[cester] which speaketh of the alienation with Warrantie made by the tenant by the courtesie in this forme. Also, in the same manner, the heire of the woman after the death of the father and mother shall not bee barred of action, if hee demandeth the heritage or the marriage of his Mother by writ of Entry, that his father aliened in his mothers time, whereof no fine is levied in the Kings Court. And so by force of the same statute, if the husband of the wife alien the heritage or marriage of his wife in fee with Warrantie, &c. by his Deed in the Countrey, it is cleere Law, that this Warranty shall not bar the heire, unlesse he hath Assets by discent.
“whereof no fine is levied in the Kings Court, &c.”
Here are three things worthy of observation concerning the construction of Statutes. First, that (a) it is the most naturall and genuine exposition of a Statute to construe one part of the Statute by another part of the same Statute, for that best expresseth the meaning of the makers. As here the question upon the generall words of the Statute is, whether a fine levied onely by a husband seised in the right of his wife with Warranty shall bar the heire without Assets. And it is well expounded by the former part of the act, whereby it is enacted, that alienation made by Tenant by the curtesie with warranty shall not bar the heire, unlesse assets des-|-cend. And therefore it should be inconvenient to intend the statute in such manner, as that he that hath nothing but in the right of his wife should by his fine levied with warrantie barre the heire without assets. And this exposition is ex visceribus actus.
Secondly, the words of an act of Parliament must bee taken in a lawfull and rightfull sense, as here the words being (whereof no fine is levied in the Kings Court) are to be understood, whereof no fine is lawfully or rightfully levied in the Kings Court. And therefore (b) a fine levied by the husband alone is not within the meaning of the Statute, for that fine should worke a wrong to the wife, but a fine levied by the husband and wife is intended by the Statute, for that fine is lawfull and worketh no wrong. (c) So the Statute of W.2.c.5. saith (Ita quod Episcopus Ecclesiam conferat) is construed, Ita quod Episcopus Ecclesiam legitimeè conferat, and the like in a number of other Cases in our Bookes. And generally the rule is, Quod non praestat impedimentum quod de jure non sortitur effectum.
Thirdly, that construction must bee made of a statute in suppression of the mischiefe, and in advancement of the remedie, as by this case it appeareth. For a fine levied by the husband only, is within the letter of the Law, but the mischiefe was, the heire was barred of the Inheritance of his mother, by the warranty of his father without Assets, and this act intended to apply a remedy, viz. that it should not barre unless there were assets, and therefore, them is chiefe is to be suppressed, and the remedie advanced, Et qui haeret in littera, haeret in cortice, as often before hath beene said.
And know my son, that I would not have thee beleeve, that all which I have said in these Bookes is Law, for I will not presume to take this upon me: But of those things that are not Law, inquire & learne of my wise Masters learned in the Law; notwithstanding albeit that certaine things which are moved and specified in the said Bookes, are not altogether Law, yet such things shall make thee more apt, and able to understand & apprehend the Arguments and the reasons of the Law, &c. For by the Arguments and Reasons in the Law, a man more sooner shall come to the certaintie and knowledge of the Law.
Lex plus laudatur quando ratione probatur.
“I will not presume,”
Here observe the great modestie and mildness of our Author, which is worthy of imitation; for Nulla virtus, nulla scientia locum suum & dignitatem conservare potest sine modestia. And herein our Author followed the example of Moses, who was a Judge, and the first Writer of Law, for he was Mitissimus omnium hominum qui fuit in terris, as the holy History testifieth of him.
“the Arguments and the reasons of the Law,”
Ratio est anima Legis; for then are we said to know the Law, when we apprehend the reason of the Law, that is, when we bring the reason of the Law so to our owne reason, that wee perfectly understand it as our owne, and then and never before, we have such an excellent and inseperable propertie and ownership therin, as wee can neither lose it, nor any man take it from us, and will direct us (the learning of the Law is so chained together) in many other Cases. But if by your studie and industrie you make not the reason of the Law your owne, it is not possible for you | long to retaine it in your memorie. And well doth our author couple arguments and reasons together, Quia argumenta ignota & obscura ad lucem rationis proferunt & reddunt splendida: and therefore argumentari & ratiocinari are many times taken for one. And that our author may not speake any thing without authority (which in these Institutes we have as we take it manifested) his opinion herein also agreeth with that of the learned and reverend Chiefe Justice of the Court of Common pleas. Sir Richard Hankford, (y)Home ne scavera de quel mettal un campane est, si ne soit bien bate, ne le ley bien conus sans disputation. And another saith, (*)Jeo aye dispute cest matter pur la apprender la ley. So as our author hath made a most excellent Epilogue or Conclusion with a grave advice and counsell, together with the reason thereof, which all students are toknowandfollow, and with Scire and sequi, I will conclude our authors Epilogue.
“Lex plus laudatur quando ratione probatur.”
This is the fourth time that our author hath cited verses.
When I had finished this worke of the first part of the Institutes, and looked backe and considered the multitude of the conclusions in Law, the manifold diversities between cases & points of learning, the varietie almost infinite of authorities ancient, Constant & Moderne, & withall their amiable & admirable consent in so many successions of ages, the manychanges&alterations of the Common Law, & additions to the same, even since our author wrote, by many acts of Parliament, & that the like worke of Institutes had not been attempted by any of our profession whom I might imitate, I thought it safe for me to follow the grave & prudent example of our worthy Author, not to take upon me, or presume that the reader should thinke, that all that I have said herein to be Law: yet this I may safely affirme, that there is nothing herein, but may either open some windowes of the Law, to let in more light to the Student by diligent search to see the secrets of the Law, or to move him to doubt, and withall to enable him to inquire and learne of the Sages, what the Law together with the true reason thereof in these cases is: Or lastly upon consideration had of our old Bookes, Lawes, and Records, (which are full of venerable Dignitie and antiquity) to find out where any alteration hath beane upon what ground the Law hath beene since changed, knowing for certaine, that the Law is unknowne to him that knoweth not the reason thereof, and that the knowne certainty of the Law is the safety of all. I had once intended for the ease of our student to have made a Table to these institutes, but when I considered that Tables and abridegments are most profitable to them that make them, I have left that worke to every Studious Reader. And for a farewell to our Jurisprudent I wish unto him the gladsome light of Jurispidence, the lovelinesse of Temperance, the stabilitie of Fortitude, and the soliditie of Justice.
[Ed.: What pleasure do you find in the empty sham of a wretched sheet? Read this, so you may say [of it] ‘It is mine by right’ [adapted from Martial, Epigrams, 10.4].]
[Ed.: A greater inheritance comes to everyone from our law and legislation than from their parents.]
[Ed.: To God, to the country, to you.]
[Ed.: The Preface.]
Instituted by Lewis the eleventh, King of France, 9.E.4.
Psal 92.II. The just shall flourish like the Palme tree, and spread abroad like the Cedars in Libanus.
*The best kind of quartering of Armes.
[Ed.: An English statute that converted fee-simple conditional estates to fee-tails, rendering them inalienable.]
[Ed.: of the office and rank of Serjeant at law,]
Rot. Pat. 33. H. 6. part 15 M. 16. Mich. 34. H.6. fol. 3. a.
Rot. Pat. 6. E. 4. Parte 1. M.I5.
15. E. 4.
14. E. 4. tit. Garranty 5. Litt. Sect. 692. 729. & 730.
He died 27. H. 6.
He died 39. H. 6.
Died 11. E. 4.
Died 16. H. 7.
Died 7. E. 4.
Over lived our Author.
Survived him also.
Died 23. H. 6.
Survived our Author.
Died 33. H. 61.
Died 18. H. 6.
Died 20. H. 6.
Removed 1. E. 4.
Removed 8. E. 4.
Died 21. E. 4.
[Ed.: the cradles of the law.]
[Ed.: My alma mater.]
[Ed.: intestate and without issue.]
[Ed.: Notable goods; property worthy of notice, or of sufficient value to be accounted for.]
[Ed.: in the mouth of all lawyers.]
1. H. 7. fol. 27. 21. H. 7. fol. 32.h.
H. 2. 2. cap.12.
[Ed.: Because many through malice . . . (the opening words of the Statute of Westminster II, c. 12).]
See Littleton Sect. 749.
[Ed.: Son of God, have mercy on me.]
[Ed.: The Nature of Writs.]
[Ed.: at the instance of.]
Lib. 2. fo. 67. Epist. 10. li. 10.
Cicero [Ed.: for whatsoever excels has a just veneration.]
Aristotle. [Ed.: It is foolish to refute absurd opinions with minute care.]
Mich. 13. Jac. in Communi Banc. inter Cock & Ilnours.
36. E. 3. cap. 25.
[Ed.: No one ought to be wiser than the laws.]
36. E.3. ubi supr.
Lib. Sap. ca. 9. Vers. 4.10.
[Ed.: Things are opened better by division.]
[Ed.: “He has Chosen”; a writ of execution for a debt.]
Regula. Incivile est, parte una perspecta, totare non cognita, de ea judicare. [Ed.: It is improper to scrutinize one part without knowing the whole and from that to reach a conclusion.]
Vide Sect. 85.
[Ed.: that he does not hold, etc.]
[Ed.: which he claims to hold of you by free service, etc.]
8. H. 7. 12. 18. E. 3. 35. 24. B. 3. 65, 66. 44 E. 3. 5. 48. E. 3. 9.
[Ed.: a free inheritance. The word appears Danish in origin, from the Lex Salica.]
Mir. des Just. c.1. sect. 3. Customes de Normandy, cap. 28.
Le st. de 16. R. 2. cap. 5. 14-El.y. 313. a 1 Co. 47. in Alton Woods case.
Bract. lib. 1. cap. 8.
[Ed.: control of the use.]
[Ed.: duty of holding and rents.]
Brit. fo. 83. 207, 208. Fleta lib. 5. cap. 5 & cap. 8. Bract. lib. 4. 263. lib. 3 Domesday. Mir. des Just cap. 2. sect. 15. 17. Bract. lib. 2. cap. 5. 6. 7. Brit. cap. 84. fol 89. Flet. lib. 3. cap. 2. 8 & 9. & lib. 5. cap. 5.
[Ed.: benefit of the estate.]
(a) Bract. fo. 263. & 207. Pl. Com. in Wals. cas. 7. H. 4. 46. 8. H. 4. 15. 18 H. 8. b. 27. Ass. 33. 18. Ass 5. 18 E.3. 46. 24. E. 3. 2 8. 9. E. 4. 18. 16. H. 7 4. d. 106. 3. Account 56.22 R. 2 Disc. 50. 12 E. 4. 3. 15 E. 4. 8. Dy. 8 E1. 252, 253. 12 H.8.8. 4 H.7.2. The Case of a person which hath a qualified fee, see in the title of Desc.
(*) Vide sect 4.
(b) Bract. lib. 4 fo. 263. Flet. lib. 5. cap.5. Brit. fo. 205.207.
[Ed.: Fee is also spoken of in another way, in respect of one who enfeoffs another, and that which he holds of another, as where one says, such a person holds of me so many fees by knight-service. (And Fleta saith). One may hold in fee with respect to the services, like a chief lord, and not in defense demesne; and another may hold in fee and demesne and not in service, like those holding freely of another.]
(c) 2 Ass. p. 4. 12. Ass. 38 12. E. 3. tit Hors de son fee. 28. 28. Ass. 41. 7. H. 4. 30. 2. H. 6. 1.
Rot. pat. 13. E. 1.
[Ed.: Granted to Edmund, his dearly beloved brother, that he and his heirs should have, at their request in the Chancery of us and our heirs, justices to hold pleas of the forest according to the assize of the forest, which our same brother has by the gift of the lord King Henry our father, etc.]
Ro. Pat. an. 47. H. 3. Itin. Pickering. 8. E. 3. Ro. 42.
[Ed.: To the abbot and convent of Whitby, that they and their successors thenceforth for ever should have their own verderers to be chosen from their liberty of Whitby in the full county assembly of York, as is customary, to make answers and presentments of trespasses which should hereafter occur in hunting within the bounds of his forest of Whitby, which they have by the gift of William de Percy and Alan de Percy his son, and by the render and grant of the lord John, our father, late king of England, and by our confirmation, before our justices in eyre for pleas of the forest in those parts, and not elsewhere, just as the verderers of our forest ought and are accustomed to make such answers and presentments. And if it should happen that any outsiders, who are not of the liberty of the aforesaid abbot and convent, commit any trespass in hunting within the bounds of the aforesaid forest, whom the aforesaid verderers cannot attach, we will and grant for ourself and our heirs that such trespassers shall be attached by the justices of our forests beyond the Trent, at the presentment of the aforesaid verderers, to answer there before our justices in eyre for pleas of our forest in those parts, when they come there to plead, as to what should be done in accordance with the assize and custom of the forest.]
Bract. lib. 4 cap. 9. fo. 263. Brit. cap. 32. & 79.
[Ed.: using careful observation and never overlooking those things one does not know.]
[Ed.: if the terms are not understood, the art itself is not understood.]
For interpretation of words and Etymologies, Vid. Sect. 9. 18. 95. 116. 119. 135. 154 164. 174. 184. 186. 194. 204. 234. 267. 268. 332. 337. 424. 520. 592. 645. 689. 733.
Bract. lib. 2. cap. 39. fo. 92. 62. b. lib. 4. cap. 28. Fleta. lib. 3. cap. 8. Bract. lib. 2. cap. 5, &c. Britt. cap. 34.
[Ed.: Simple is the same as pure. And simple is so called because it is sine plicis (without folds); and something is called pure when it is absolute and single, without addition. A simple and pure donation is where no condition or qualification is added; for something is given simply when it is given with no addition.]
Fleta, lib. 3. ca. 3. Plowd. 58.b.
[Ed.: One kind of gift is simple and pure, not constrained by civil or natural law, with no fear preceding it or intervening, which proceeds from the pure and gratuitous liberality of the giver, and where the donor does not wish the thing given to revert to himself in any situation; another is qualified, upon condition, or for a cause, in which cases it is not properly a donation, since the donor wishes it to revert to him, but rather a certain feudal demise; another is absolute and large; another strict and forced, as when it is to certain heirs, excluding others from the succession, etc.]
[Ed.: a lawful or pure inheritance.]
Vid. Sect. 57.
11. Eliz. Dier 283. 11. H. 4. 20 & 26. 7. E. 4. 29.
32. Hen. 6. 23. Pl. Com. 483.
5. Mar. Br. tit. Denizen. 22.
Pasch. 29. Eliz. in Sir James Croft’s case. 49. Ass. pl. 2. 49. E. 3. 11.
[Ed.: Civilly dead; dead in the view of the law.]
[Ed.: If any religious or other person.]
Magna Charta. cap. 36. 7. E. 1. stat. 2. de. religiosis. W. 2. 13. E. 1. cap. 33. 15. R. 2. cap. 5. 23. H. 3. Ass. p. 17. Brit. fo. 32. Fleta, lib. 3. cap. 4. &. 5. 19. E. 2. tit. Vil. 1 34. 29. E. 3 Ibid. 13. 21. E. 3. 5. 4. H. 6. 9. 19. H. 66. 3. 65. 3. E. 4. 14. 19. E. 3.
Mortm. 8. 34. H. 6. 37. 19. H. 6. 63. (plowd. 502.a.) 7. E. 4. 14. [Ed.: dead hand, because the possession thereof is immortal, ‘hand’ meaning the possession, and ‘dead’ meaning immortal.]
Pl. Com. 193. in Wroteslyes case.
[Ed.: dead hand, by antiphrasis.]
Le statut de Religiosis. 7. E. 1. st. 2.
[Ed.: whereby the services which are owed from such fees, and which were originally provided for the defence of the realm, are unduly withdrawn, and the chief lords lose their escheats.]
41.43. Ass. p. 23.
[Ed.: a prelate of the church may improve the condition of his church but not worsen it.]
Bract. lib. 2. fo. 12. &. 32.
[Ed.: A church also is in the same condition, because it has the status of a minor.]
[Ed.: No simile runs upon four feet.]
(a) 1. H. 7. 16. 7. H. 4. 17. 18. H. 6. 8. 9. E. 3. 30 15. E. 4. fol. 1. b. 27. H 8. 24.
(b) A name of purchase. 2. H. 4. 25. 11. H. 5. 8. 46. E. 3. 22. 12. Ass. 18. 30. E. 3. 18. F. N. B. 97. a. 1. Ass. 11. 13. Estoppel. 231.
[Ed.: The useful is not vitiated by the useless.]
(c) 12. H. 7. 8. 37. H. 6. 30. 10. H. 4. 3. b.
(d) 32. E. 3. barre 261.
(e) 33. E 3. grant 83. 18. E. 3. 50. 12. Ass. 35. 14. H. 6. 12. 34. Ass. p. 11. 40. Ass. p. 21.
[Ed.: and to his men, both freemen and niefs (serfs).]
[Ed.: of his men, (or) of his tenants, (or) of residents within the fee, etc.]
(f ) Bract. lib. 4. tract. 1. ca. 20. Britton fol 121. 122. 3. E. 3. 78. 25. E. 3. 43. 26. Ass. 61. 30. Ass. 16. 46. E. 3. 22. 39. E. 3. 17. 3. H. 6. 25. 19. H. 6. 2. 30. H. 6. 1. 34. H. 6. 19. 11. H. 4. 27. 9. E. 4. 29. 5. E. 4 46. 65. 14. H. 7. 11. 20. Eliz. Dier 259. 8. E. 3. 436. 20 3. 25. 1. H. 4. E3. 5. H. 6. 26. 19. H. 6. 2. 34. H. 6. 19. 5 E. 4. 55. 27. H. 8. 11. 1. H. 5. 5 18. E. 3. 32. 27. E. 3. 85. 8. E. 3. 427. 7. H. 6. 29. 9 H. 5. 9.
(g) 40. E. 3. 22. Fitzwilliam. 24 E. 3. 64. Fitzjohn. 39. E. 3. 24. Fitzrobert. 27. E. 3. 85. tit. grant, 67. 18. E. 323, 24. 18. E. 4. 8b. 14. H. 7. 31. 32. 13. E. 4. 8. 5. E. 3. Vouch 179. 37. E. 3. 85. where the proper name is mistaken.
(h) 22. R. 2. briefe. 936. 12. R. 2. foeffments 58. 9. E. 3. 14. 46. E. 3. 21. 3. H. 6. 26. 34. H. 6. 19. 1. H. 7. 29. 5. E. 2 briefe. 741. 14. H. 7. 11.
(i) 17. E. 3. 29. 18. E. 3. 59. 30. E. 3. 18. 11 H. 4. 84. Pl. Com. 525. 21. R. 2. devise 41. E. 3. 19. 15. E. 3. Counter-Plea de Vouch. 43. 35. Ass. 13. 37. H. 6. 30. 11. E. 4. 2. 7. H. 4. 5. 40. E. 3. 9. 37. H. 8. Bru Nosme 40.
[Ed.: as “to the wife of I.S.” as hath beene said, or “to the firstborn son, or second son,” etc. or “to the youngest son of I.S.” or “elder son,” or “to all the sons and daughters of I.S.” or “to all the children and issue of I.S.” or to the right heires of I.S.]
(k) 15. H. 7. 14.
[Ed.: with his whole family.]
(l) 8E. 3. 437. 29. E. 3. 44 19. E. 4 11. 21 E. 4. 19. 7. H. 6. 29.
(a) 39. E. 3. 11. 24. 17. E. 3. 42. 35. Ass. 13. 41. E. 3. 19.
Vide sect. 118.
[Ed.: whoever is born of a guilty union shall not be reckoned among the children.]
[Ed.: as it were, the son of no one.]
(b) So it was resolved. M. 38 & 39. Eliz. in Bre. de errore, for land in Portington in Come. Salop.
(c) 39. E. 3. 11. 24. 35. Ass. 13. 41. E. 3. 10. 17. E. 3. 42. (6. Co. 66.)
[Ed.: A son whose birth precedes his parents’ marriage.]
(d) S. E. 4. tit. office & officer. Bro. 48. vinters case. 5. Mar. Dier. fo. 150. b. and Scroggs case. (Hob. 148.)
[Ed.: for the advantage of the king and the people.]
(e) M. 40. & 41. Eliz. in the King’s Bench between Scamler an Walters.
(f ) 11. co 2. in Auditor Curle’s case. Vide Sect. 378. 1. H. 7. 31.
(g) Bract. lib. 5 fo. 421. 415. Britt. cap. 22. 39. Fleta lib. 6. cap. 41. I. E. 3. 9. 44. E. 3. 4. 3. H. 6. 24. 21. R. 2. Judgement 263. 7. H. 4. 2. 14. H. 8. 16 Doct. & Stud. 141. Pl. Com. fo 47. Britt. cap. 33.
[Ed.: of those who have been professed and are dead to the world (for they are) civilly dead,]
[Ed.: Also, purchase is called the possession of lands or tenements that a man has by his deed or agreement, to which possession he does not come by title of descent from any of his ancestors or of his kinsmen; but by his own deed.]
(h) 27. Eliz. cap. 4. 13. Eliz. cap. 5. 3 co. 80. 82 83. Twine’s case. 5. co. 60. Gooche’s case, 6 co. 72. Burrel’s case, 11. co. 74. Pasch. 12. Ja. inter Jones pl. and Sir Rich. Groobham def. in ejectione firmae in evidence al Jurie.
(i) Hill. 18. E. 3. coram Rege in Thesaur.
[Ed.: that he placed his land in a wrangle.]
(k) 37. H. 8. cap. 6. 13.Eliz. cap. 8. 5. Co. 69. Burtun’s case, Eodem, lib. 7 Claiton’s case.
Pl. Com 168 b & 170. a & 151. 4.co. 87 b. Lutterel’s case. 4. E. 3. 161 & 6. E. 3. 283. 8. E. 3. 377. Temps. E. 1. Briefe. 811. 28. 14. 8. Dyer, 47.
[Ed.Terra (land) is an extremely general noun and comprehends all species of land.]
[Ed.Terra (land) is so called from terendo (wearing down) because it is worn down by the plough.]
[Ed.: arvum (a ploughed field) (is derived) from arando (ploughing).]
* Tr. 7. E. 3. coram Rege Northampt. In Thesaur.
Psal. 115. 16. [Ed.: The heaven, even the heavens, are the Lord’s; but the earth he has given to the children of men.]
Psal. 104. 15.
[Ed.: Earth was once called the abundant mother, because all things have to live therefrom.]
Chrysost. Hom. 30.
[Ed.: God gave you the earth as your homeland and nurse, and mother, and food (lit. table), and home, and even gave the same to you for your burial.]
[Ed.: twenty acres covered with water]
[Ed.: solum (soil), because it is solidum (solid).]
Vid. sect. 59. wherein this case liverie shall be made.
[Ed.: at alternate times.]
Vid. sect. 648. How these 13 acres may be charged.
Hill, 34. Eliz Rot. 489. in trans inter Weldon & Bridgewater in Banco Regis Temps. E.1. tit. partition 21. F.N.B. 62. L. Vide l Co. fo.87. per Walmsl. F. N. B. 62. K.
Vide sect. 114. where advowsons, &c. may be appendent and in gros.
(k) Tr. 7. Eliz. in Banco regis 5. co. 11. Ives case. 14. H. 8. 1. 46. E. 3. 22. 28. H. 8. Dyer. 19. 32. H. 8. Br reservat. 39. 7. E. 6. Dyer 79.
[Ed.: all his woods growing etc.]
Glanvil. lib-8. cap. 3.
(l) Domesday Regist. F.N.B. 2.
[Ed.: an alnetum (elder wood) is where elder trees grow.]
Hill 14. E. 3. coram Rege Lanc. in Thesaur.
(m) 8. E. 2. Wast. III. 7. Ass. 18. 11. Ass. p. 13. 41. E. 3. Wast, 82.
[Ed.: where willows grow.]
*Inter inquisit. apud Lanc. in com. Cornubie coram Justic. Aud. anno 6. E. I. in Thesaur. the B. of Exceters case.
[Ed.: where ferns grow.]
[Ed.: fraxinetum (ash grove), where ashes grow.]
(o) Camden 460. 151.
[Ed.: a stone hill.]
(p) Pasch. 44. E. 3. coram Rege in Thes.
(q) Hill, 13. E. 2. Lanc. coram Rege. in thesaur Camden Britt. 247. Rot. Par. 18 E. 1. 8. Evesque de Carlisle’s case.
(r) Pl. Com. 169. a. 4. E. 2. Briefe. 792. 793. 3. E. 3. 86. 4. E. 4. 1. 27. H. 8. 12.
(s) 20. Ass. pl. 9.
(t) Pl. Com. 169a. 13. E.3 Briefe. 241. 33. E. 3. Entrie. 80.
(u) Domesday. F.N.B. 2. Regist.
(a) Regist. 1. E. 3. 4. F.N.B. 2.
(b) 16. Ass. p. 2. Register.
(c) Pasch. 41. E. 3. coram. Rege Lincoln. rot. 28.
(d) Mag. Chart. c. 31. Walingford Nott. Bolon. Lanc. &c. Trin. 33. E. 1. coram Rege in Thes. honor de Huntingdon. Mich. 9. E. 1. Coram Rege in Thes. 8. E 2. Ass 377. 26. Ass. p. 60. 6. E. 3. 56- 47. E. 3. 21. honor de Pevevevel. 49. E.3.3. 24. honor de Egles. 9. H. 6. 27. 36. H. 8. Dyer 58. Honor de Glouc. F.N.B. 265. honor Abbath. de Merle. 5. E. 4. 129. 7. H. 6. 39. 1. E. 3. 4. &c. 13. E. 3. jurisdict. 23. 4. co. 88. Lutterel’s case. 5. H. 7. 9. 14. H. 4. in recordo longo. 8. H. 4. Pl. Com. 168. 8. H. 7. 1. 4. E. 4. 16.
*13. E. 3. jurisdict.23.
(e) 26. Ass. 54. 29. E. 3. 15. 29. H. 6. travers 4. Bract. fo 434 1 E. 3. 4. 5 H. 7. 9. 3. E. 2. Avowry 188. 37. H. 6. 26. 18. H. 6. 11. Lib. rub. sca. fo. 18.
(f ) In veter. Mag. Cart. cap. escheatriae fol. 162. Britton. cap. 20. Rot. Parliam. 45. E. 3. nu. 34. 6. H. 4. nu. 19. 1. E. 4. cap. 1. Rot. Parliam. 1. E. 3. 2. pars. Alano Charleton. 22. E. 3. 2. pars. Thoma Barkley &c.
[Ed.: soke and sake (the lord of the manor’s right to hold court and compel attendance) of their tenants and men.]
(g) Lamb. exposit. verb. ferme. Pl. Com. 195.
[Ed.: what was once called fundus (farm) is now called a manor.]
(h) Pl. Com. 169. Regist. 227. b. eject. firmae.
(i) 17. E. 3. fo. 8. 5. E. 3. 213. 16. E. 3. bre. 165. 12. E. 2. bre. 814.
[Ed.: of one knight’s fee.]
(k) 4. E. 3. 161. 6. E. 3. 283. 2. E. 3. 5. 35. H. 6. 29. Pl. Com. 168. 7. Ass. 8. 11. Ass. 13. Lamb. expos. verb. Hyda & virgat. terrae. Glanvil. lib. cap. Domesday. Bract. lib. 2. cap. 26, 27, & lib. 5. fol. 434. Regist. 72.
(l) 5. E. 3. fine 49. 13. E. 3. fine 67. 39. H. 6. 8. 4. E. 3. 159. 8. E. 3. 377. Bracton fol. 180. 269- 431. 5. H. 3. Droit. 66. Pl. Com. 168.
(m) 13. E. 3. bre. 241. 2. E. 3. 57. temps. E. 1 bre. 811. Pl. Com. 168.
(n) Pl. Com. 169. Linwood. 44. E. 3. 21. 4. E. 3. 32.
(o) 4. E. 3. tit. feoffments & faits 79. 14. E. 3. Formedon. 34. 34. Ass. pl. 11.
(a) 13. E. 3. 4. 4. E. 3. 143. 8. E. 3. 381. 10. E. 3. 482. 13. E. 3. entry, 57. F. N. B. 191. b.
(b) Temps E. 1. bre. 861. 4. E. 3. 5. 10. H. 7. 30. 44. E. 3. 12. 43. E. 3. 24. 35. H. 6. 55. 3. H. 6. 2. Domesday, Bracton lib. 4. fo. 235. Int adjudicat. coram Rege. p. 39. E. 3. lib. 2. fo. 95. in Thesaur.
(c) 40. Ass. 38. 4. H. 6. 14. 35. E. 1. ca. 6. Anno 10. E. 1. inter fines in Thesaur. Ferlingus terrae continet 32. acras.
Frustrum. 16. E. 3. tit. comon. 9.
[Ed.: In the island the king has one piece (frustrum) of land whence come six ploughs.]
(d) Mich. 8. H. 3. incipien. 9. Coram Rege. Warr. Ro. 6.
[Ed.: vervactum (fallow), meaning, as it were, newly vere victum (truly gained) or worked, newly ploughed or refreshed land, because in alternate years it rests.]
(e) Virg. Eclog. 1. a.
[Ed.: newly cultivated land.]
(f ) Bract. 211. 233. 22. E. 4. trans 140. Pl. Com. 168. 171. 23. H. 8. Br. feoffments 53. 9. Ass. p. 21. 35. H. 6. 44. Pl. Com. 169.
(h) Pasch. 30. E. 1. cortam Rege Kanc. in Thesaur. Statut. de extent. manerii Domesday.
[Ed.: who are tenants of the cottage and curtillage.]
(i) Int. placita coram domino Rege Mich. 10. E. 3. Rot. 26. Lamb. exposit. verb. Thanus.
[Ed.: free tenants who ploughed and harrowed to the lord’s court, or reaped, or harvested.]
[Ed.: the king’s knights . . . this land in the time of King Edward was theign-land, but is now converted into reeve-land.]
(k) Lib. Rub. cap. 15. &. cap. 41. & 76. W. 2. c. 46. 7. H. 438. Lib. d’Entries tit. Ass. Corps. Pol. 2.
[Ed.: The king’s theign is next to an earl, and a middle theign there, and elsewhere a baron or theign.]
(l) 7. H. 4. 38. Fleta. lib. 2. cap. 35. Domesday. 10. R. 1. Inter fines.
[Ed.: An acre in Cornwall contains forty perches in length and four in width, and every perch is sixteen feet in length.]
(m) 9. E. 39.Temps. E. 1. Br. 866. Mich. 30. E. 1. coram Rege. Glouc. in Thesaur.
(n) Bract. fo. 377. 431. 43. E. 3. 27 Regist. fo. 1. 94 248. 249. F.N.B. fo. 87. F. I.
[Ed.: of a hundred librates (pound’s-worth) of land, or fifty librates (pound’s-worth) of land, or a hundrd solidates (shilling’s-worth) of land.]
(p) 7 R. 1 Inter fines Sussex.
[Ed.: for a noble mind cannot bear ignorance.]
(m) 17. E. 3. 7. 43. E. 3. 35. b. Regist. 65. 10. H. 7. 21. Pl. Com. 191. 195. Bract. 211 326.
[Ed.: A mine of lead.]
[Ed.: as of freehold.]
(n) 45. E. 3. Vouchee 72. 33. E. 3. Grant 102 11. H. 6. 22. 27. 14. E. 4. 4. 20. Ass. p. 9. 3. E. 419. 11. H. 7. 25.
[Ed.: as of a free tenement.]
(o) Lib. fo. 1 & 2 in Seign. Buckhursts case. 44. E. 3. ll b. 39. E. 3. 17. a. 19. H. 6 65. b. 4. H. 6. a. 10. E. 4. 9 b. 18. E. 4. 14. 15. 6. H. 7. 3. b. H. 7. 33. a.]
[Ed.: and by reason of land.]
Vid. Sect. 40. & 370. 371 many things de cartis & Factis, Fleta lib. ca. 14. Britton 100. 101. Bracton lib. 5. fo. 396. a. 399. 38. H. 6. 33. 36. Pl. Com. Wrotesleyes case, fol. 96.]
(p) Vid.Throgmortons case. Pl. Com.
[Ed.: these being witnesses.]
(q) Lib. 6. fo. 43. in sir Anthony Mildmayes case, Vid. sect. 278.
[Ed.: Such was the innocent faith and simplicity of that age, that all the points of an agreement were put into a few lines.]
[Ed.: something is certain if it can be made certain.]
Brit. fo. 101.
[Ed.: In witness whereof I have set my seal.]
[Ed.: given (or dated) at D.]
[Ed.: in witness whereof.]
(r) Lamb. exposit. verb. terra ex scripto. Vid. Fortescue cap. 32. see the second part of the Institut. cap. 38. 12. E. 2. c. 2. see the second part of the Institutes. Marlbr. cap. 6. & cap. 14.
[Ed.: the witnesses named in the charter.]
(s) Brit fo. 65. 101. 11. E. 3. Proces. 170. 6. H. 3. Proces. 209. 8. H. 3. Proces. 210. 4. E. 2. gard. 119.
(t) Mirror ca. 4. sect. de infamies & perjurie. Glanvil. lib. 2. cap. 15. Bract. lib. 5. fol. 288. 292. Brit. fo 134. 135. 101. Fleta lib. 5. ca 21. 8. E. 2. Ass. 396. 2. E. 3. 22. 24. E. 3. 34. 43. E. 3. conspir. 11. 27. Ass. 29. 33. H. 6. 55 H. 6. 30.
[Ed.: [To lose] one’s free law (called the Villainous judgement).]
(c) Fortescu. cap. 26. Pat. 55. H. 3. m. 3. Stanf. Pl. Cor. 174. a.
[Ed.: free law.]
(d) Fortescu. ca. 25.
(e) 22. Ass. 12. &. 41. 23. Ass. 11. 19. E. 2. tit. Ass. 4o.
(f) 34. E. 1. Proces. 208.
[Ed.: Out of the law; out of the protection of the law.]
(a) 34. E. I. tit.proces 208 II. Ass. p. 19. 20. 12. Ass. p. 1. 12. 41. 18. Ass. p. 11. 22. Ass. 15. 23. Ass. 15. 40. Aff. 23. 48. Ass. p. 5. 21. H. 6. 3o. [Ed.: Note: the 1639 edition’s note lettering is used here, but it is erratic.]
(b) 48. E. 3. 30. 12. H. 6. fo. 6. 2. 5o. E. a. 16. 43. E. 3. 32. 12. H. 4. 9. 19. E. 2. Ass. 408. Pasch. 14. E. 3. Coram rege Devon. in Thesaur. Fleta lib. 6. cap. 6. F.N.B. 106. b. & 97. c.
(c) Mirror ca. 3. Pl. Com. fo. 10. Bract. lib. 5 fo. 400.
[Ed.: proof is of two kinds, that is to say, living.]
[Ed.: with the living voice; by word of mouth, and dead.]
[Ed.: Full proof (that is, proof by two witnesses).]
[Ed.: A light or random presumption.]
Fleta lib. 6. ca. 33. 8. E. 3 290. 39. E. 3. 21. 5.
[Ed.: From length of time (after lapse of time) all things are presumed to have been done in due form.]
Glanvil. lib. 10. ca. 12. Fleta lib. 6. ca. 33.
[Ed.: by the addition of seals, writing, etc.; and upon the credit of charters with dead witnesses it will be necessary to have recourse to the country (i.e., jury).]
Pasch. 10. Ja. in Com. Banco upon the stat. of Bankrupts.
[Ed.: because they are two souls in one flesh.]
(d) Fleta, lib. 2. ca. 44. 13. E. 1. tit. Vill. 36. 37. 19. E. 2. Ibid. 32.
[Ed.: women ought not to be admitted to prove the status of a man.]
(e) Tr. 8. Ja. in Com. banco. Smithes case. In evidence upon an information upon the statute of Usury. Brit. fol. 134.
[Ed.: a witness in his own cause.]
[Ed.: in truth.]
[Ed.: these being witness.]
[Ed.: witness myself; a solemn formula of attestation by the sovereign, used at the conclusion of charters, and other public instruments, and also of original writs out of chancery.]
[Ed.: warranty is an English word.]
[Ed.: In testimony whereof.]
(f ) Mirror ca. 1. sect. 6 &. and cap. 5. sect. 1: Glanvil. lib. 10. ca. 12. Bract. lib. 5. fol. 396. Flet. li. 6. c. 32. Brit. f. 66.
(g) Vid. Tearmes of the Law, verb. faits. Vid. Glanvil. lib. 10. c. 12. Mirr. c. 1. sect. 3. & c. 3.
[Ed.: that the thing should rather prevail.]
[Ed.: I, Edward, by the grace of God king of all the land of Britain, have confirmed my gift with my own seal.]
[Ed.: I, Ælfwin, God’s overseer of the church of Winchester, have stamped my own seal.]
[Ed.: Defender of the faith.]
21. H. 8 cap. 15.
[Ed.: and likewise of similar things.]
Vid. 2. H. 4. ca. 15. where Royall Majestie is attributed to the King, and Crimen Laesae Majestatis far more ancient.
[Ed.: Royal highness . . . Humbly supplicates unto your royal highness, etc.]
[Ed.: William, by the grace of God king of the English.]
[Ed.: Henry, by the grace of God king of the English.]
[Ed.: Maud the Empress, daughter of King Henry, and lady of England.]
[Ed.: Henry, king of England, duke of Normandy and Aquitaine, and earl of Anjou.]
[Ed.: Lord of Ireland.]
Vid. Rot. Parliam. anno 1. H. 6. nu. 15. he was stiled Rex Franciae & Angliae & Domimus Hiberniae.
[Ed.: Henry, by the grace of God king of England and France, and lord of Ireland, in the forty-ninth year since the beginning of his reign and in the first year of his resumption of the royal power.]
[Ed.: Supreme Head of the Church of England.]
[Ed.: Henry the eighth, by the grace of God king of England, France, and Ireland, defender of the faith, etc., and supreme head in earth of the Church of England and Ireland.]
Liverie of seisin incident to a feoffment. Vid. sect. 59.
Mirr. cap. 2. sect. 15. Bract. lib. 2. fol. 62 b. Flet lib. 6. cap. 1 & 54. & lib. 1. c. 13. Glanvil. lib. 7. cap. 1. & capa. 12. & 13.
[Ed.: begotten of a rightful marriage (for) he is a lawful heir whom marriage points out as such; who is born in wedlock.]
[Ed.: Only God may make an heir, not man. Haereditas (inheritance) and haeres (heir) are so called from haerendo (adhering), that is, firmly sticking, either because he who is an heir adheres or because the inheritance adheres to him who is the heir, even though many would like to be called heir, that is, lord of the lands etc. which have come to him.]
(a) Bract. lib 5. fol. 437. 438. Brit. cap. 66. fol. 167. & cap 83. Fleta. lib. 1. cap. 5.
[Ed.: Those who are born without human form shall not be considered children, as for instance when a woman gives birth to something monstrous or unnatural. But if nature has added or subtracted a little something, provided it not be excessive (for instance, if the offspring has six fingers, or four), he shall rightly be considered a child. If nature has rendered something useless, for instance if the offspring has twisted limbs, he shall not on that account be considered a monster.]
[Ed.: Those who are born of an unlawful intercourse are not reckoned among the children.]
(b) Vid. Sect 188. 399. Bract. lib. 2. fol. 92. Brit. fo. Fleta lib. 2 ca. 5. & 1. 6. c. 8. Fleta ubi supra. 3. R. 2. Entr. cong. 38.
[Ed.: whoever is born of a guilty union shall not be reckoned among the children.]
[Ed.: A hermaphrodite shall be treated either as male or as female according to the prevalence of the sex when warmed.]
(c) Mirror ca. 1. ca. 3. sect. ca. 5 sect. Bract. lib. 5. fol. 415. 427. Britt. fo. 29. Fleta lib. 6. ca. 47. 13. E. 3. br. 677. 25. E. 3. de natis ultra mare. 31. E. 3. Cosinage 5. 42. E. 3. 1. 11. H. 4 26. 14. H. 4 19. 20. 3. H. 6. 55. 22. H. 6. 38. 9. E. 4. 7. lib. 7. fo. 1. in Calvins case.
[Ed.: for want of subjection.]
[Ed.: on account of wrongdoing.]
1. E. 3. 4. 6. E. 3. 55. 27. E. 3 77. 3. E. 2. discent. Br. 64. 31. E. 1. discent. 17. 46. E. 3. Petition 20. 26. Ass. pl. 2. 49 Ass. pl. 4. 29. Ass. pl. 11. 9. H. 5. 9.
(d) Stanf. pl. cor. 195. 196. Bracton lib. 3. fo. 132. 133. 276. & lib. 5. fo. 374. Britton fo. 215. b. Fleta lib. 1. ca. 28.
(*) In the Exchequer Mic. 40. & 41. Eliz. in le Case de Hobby.
(e) Bract. lib. 4. fol. 130. Britton fol. 15. Fleta lib. 1. cap. 58.
(f ) Bract. lib. 5. fol. 421. 430. 434. lib. 2. fol. 12. Fleta lib. 6. ca. 39. 47. 14. H. 3. Bre. 877. 32. E. 3. Age 8. 10. E. 3. 535. 18. E. 3. 53. 13. E. 3 Ley 49.
[Ed.: in this case he suffers from a natural deficiency.]
(g) 21. E. 2. 29 Panorollus nova rep. 485, &c. Opus eximium 48. b. Lambard de priscis Anglorum legibus 120. 72. acc.
[Ed.: because in this case the affiliation cannot be proved.]
[Ed.: Let every widow be unmarried for twelve months, and if she marries she should lose her dower.]
(h) Bract. lib. 4. ca. 9. fol. 265. lib. 2. fo. 62. b. Fleta lib. 6. ca. 1. Lib. 8. fo. 54. Syms case.
[Ed.: heir is so called from inheritance.]
(i) Mich. 36. & 37. El. Rot. 25. Inter Gray. & Paulet in the Kings Bench. Stanford 25. b. 18. E. 4. 8. 22. Ass. 25. 18. H. 8. 2.
(k) 13. E. 3. det. 135. 139. 140. 47. E. 3. 23. 25. E. 3. fol. 43. 26. E. 3. fo. Vid. for an heirelome haereditarium or principalius, sect. 12.
(l) Mirror ca. 1. sect. 3.
(a) Bract. lib. 2. fo 85. Heref p. 8. E. 1. Ro. 8o. de Banco. Mirror cap. 2. sect. 18. Britton 151. b.
[Ed.: Suppose the heir is astrarius (found on the hearth), or that some ancestor in his lifetime restores his inheritance to the heir and renounces his own interest; it seems that the inheritance will never lie vacant and therefore that it cannot and ought not to be taken up, nor any relief given.]
(b) Registr. fo. 227. Bracton lib. 2. fo. 69. Britton fol. 165. Fleta lib. 1. ca. 14.
[Ed.: Writ to inspect the belly, where a woman feigned to be pregnant, to see whether she was with child.]
[Ed.: Note that if anyone having an inheritance takes someone to wife, and afterwards dies without an heir begotten of his body, so that the inheritance ought to descend to the brother of the deceased, and the woman says she is pregnant by the deceased, when she is not, the brother and heir shall have a writ de ventre inspiciendo (for inspecting the belly).]
[Ed.: where someone’s wife claims to be pregnant in the lifetime of her husband, when she is not, or after her husband’s death claims to be pregnant, when she is not, to the disinheritance of the true heir, etc., at the suit of the true heir by command of the lord king, etc.]
[Ed.: No one can be heir during the life of his ancestor.]
[Ed.: at the suit of the true heir.]
Britton fo. 165. b. Regist. ubi supra.
[Ed.: God alone makes the heir.]
Vid. Bracton, Britton & Fleta ubi supra. Registr. ubi supra. Bracton and Fleta ubi supra hare (ad exhaereditationem.)
[Ed.: The king to the sheriff, etc. greeting. A. has shown to us that, whereas R., who was the wife of Clement B., is not pregnant, she falsely says that she is pregnant by the same Clement, to the disinheritance of the selfsame A., inasmuch as land which was the selfsame Clement’s ought to descend to him the said A. by hereditary right as his brother and heir, if the aforesaid R. should have no issue by him, etc.]
(c) 10. H. 6. 7. 22. H. 6. 15. Pl. Com. 28. b. 22. E. 4 16. 2. H 4. 13. 20 E. 3. br. 377
(d) Lib. 5 fo. 96. 97. Britt. fo. 28. H. 8. Dyer. Pl. Com. 287, 288.[Ed.: Lib. 5 is 5 Coke Reports.]
(e) Bract lib. 2. ca. 39 fo. 92. b. Br ca. 39 fo. 99. b. Fleta lib. 6. ca. 1. 2. & lib. 3. cap. 2. 20. H 6. 35. 36. 19. H. 6. 17. 22. 74. 2. E. 4. 16. b. 4. E. 6 Pl. Com. 26.
[Ed.: If a gift is made in this way, as if I say, I give you such and such land: this gift does not extend to heirs but only to the life of the donor, etc.]
(f ) Vid. sect. 413.
(g) 7 E. 3. 25. Vid. sect. 686. 25. E. 3. 35. Bract. lib. 2 fo. 62. b. Vid. sect. 413.
(h) Pl. Com. 242. Seignior Berkleyes case.
(i) Vid. Britt. fo. 86. 121. & 130. 17. E. 3. 5. b. 33. H. 6. 22. 10. H. 7. 13. 14. 9. H. 7 11. 16. H. 7. 9. 15. E. 4. 10. 14. H. 6. 12. 35. H 6. 54. 24. Ass. 14. 40 Ass. 21. Tr. 5. E. 3. Rot 4 in Scaccario. 3. E. 3. 32. 7. E. 3. 40. 11. H. 4. 84. 12 H. 4. 12. 18 E 3. Conusans 39. b. 5 E. 4. 121. 38. E. 3. 4. Lib. 9 fo. 28. in Case de Abb. de Strata Marcella.
(k) Hil. 21. Eliz. Dyers manuscript, Inter Ansley & Johnson in Com. Banco.
(l) 18. H. 6. 11. b. &c. adjudge.
[Ed.: to a dean and chapter, to have unto them and their heirs and successors.]
[Ed.: to have unto him and his successors or his heirs.]
(m) 15. E. 3. tit. Counterplea de Voucher 43. 37. H. 6. 30. 11. E. 4. 1.
[Ed.: and his children.]
(n) Fleta lib. 3. cap. 8.
Pl. Com. 163.
[Ed.: Under which words ‘his heirs’ are comprehended all the heirs, whether near or remote, born or about to be born.]
[Ed.: under the appellation ‘heirs’ come the heirs of heirs, and so on infinitely.]
(a) Sect. 17. 62. 133.
[Ed.: all only.]
(b) Sect. 156. 161.
(c) Sect. 184.
(d) Sect. 190. 194. 746.
(e) Sect. 9. 67. 194. 204. 234. 236. 241. 405. 485. 478. 651. 655. 646. 620. 614. 637. 674. 692.
(f) Sect. 733.
[Ed.: status (estate) is so called from stando: (being established).]
(g) Tr. 40. Eliz. in le Countee de Derbyes case, by the Lo. Chancellor, les 2. chiefe Justices, & chiefe Baron.
(*) Vide sect. 49. & 66.
(h) Mirror c. 2. sect. 15. & c. 5. sect. 1. Bract. lib. 2. fo. 53. 366. 368. Fleta lib. 3. ca. 1. 2. 15. Britt. 84. 87. a. & fol. 63. 101. 102. 141. 142. agreeth herewith. Pl. Com. 171. Hill. & Grange.
[Ed.: incorporate inheritance.]
Mirror cap. 5. sect. 1. Britton cap. 34.
[Ed.: An Inheritance is the succession to every right which the deceased had. Inheritance is either corporeal or incorporeal; corporeal is that which can be touched and seen, incorporeal that which cannot be touched or seen.]
For the Antiquitie of Feoffments see the second part of the Institutes, Marlebridge ca. 4. 8. E. 3. 24. 18. H. 6. 24. 39. H 6. 39.
Genesis 23. [Ed.: because it is a gift of the fee.]
Vide sect. 57. Britton cap. 34. 44. E. 3. 41. See more of feoffment, sect. 60. See of factum, Sect. 259.
[Ed.: ‘Done’ (or grant) is the general name, more of which is feoffment, because done is general to all things mobile, feoffment is of nothing not attached to the soil.]
[Ed.: Gift is a general name, which is more than feoffment, because ‘gift’ is general in respect of all things movable and immovable, whereas feoffment is of nothing but the soil.]
[Ed.: between a charter and a deed.]
Lib. 3. f. 63. in Lincolne College case.
(i) Litt. lib. 3. c. de Attorn. sect. 5. 8. 6. 4. E. 6. Estates Br. 78. 26. H. 8. Testaments 18. 22 Eliz. Dier 371. Temps H. 8. tit. Conscience. Br. 25.
(k) 21. E. 3. 16. 34. H. 6. 7. 19 H. 8. 9. lib. 3. fo. 21. in Borastons case lib. 6. f. 16. 17. lib. 10. fo. 67.
(l) vide sect. 585.
(m) Mich 40. & 41. Eliz. in Error Int. Downhall & Catesby adjudge. Brooke tit. taile 21.
[Ed.: and his blood.]
[Ed.: to his seed.]
(n) Lib. 1. fo. 100. Shelleyes case 42. E. 3. 7. 19. H. 6. 17. b. 22. b. Pl. Com. 248.
[Ed.: upon an acknowledgement of right, as that which he has of his gift.]
(o) Litt. lib 2. ca. Tenant. common sect. 304, 305. cap. Atrorn. sect. 37. 4. Dier. Eliz. 263.
(p) Litt. lib. 3. c. Releases. sect. 479. 480. 20 H. 6. 17. 19. H. 6. 17. 22.
(q) Litt. cap. Releases. sect. 467.
[Ed.: that the aforesaid B. should recover against the aforesaid A. the aforesaid tenements with the appurtenances.]
27. H. 6. Lo. Vescies case.
[Ed.: And the exception proves the rule.]
(r) 39. Ass. 12. 41. E. 3. tit. Feoffments & Faits 254 14 H. 4. 13. 34. E. 3. Avowrie 258.
[Ed.: words which are referred to (in an instrument) have as much force by reference as if they were in being (i.e. in the instrument itself ).]
(s) Vide sect. 17 12. H. 4. 19. in Formdon.
(t) 8. E. 3. 27. 11. H. 7. 12. 22. E. 4. 11. H. 4. 84. 2. H 4. 13.
(u) 19. H. 6. 74. 20. H. 6. 36.
[Ed.: in free alms (frankalmoin).]
(w) Pl. Com. Lo. Berkleyes case.
(x) 29. Ass. 25. 15. H. 7. 14. 2. H. 7. 5. 11. H. 4. 3 21. E. 1. 21. Ass.
[Ed.: The laws themselves require that they should be governed by law.]
[Ed.: The rights to stunt forest trees so they will die and then to work the newly arable land.]
[Ed.: to have and to hold unto him for ever.]
(y) 40. H. 7. 7.
(z) 22. E. 3. 3. 45. E. 3. 20. 9. E. 2. 21 Lib. 4. f. 121. Bustards case. Vide Sect. 465 469. 610. 19. H. 6. 17. 22. 19. E. 2 garr. 85
[Ed.: Where the same reason exists, there the same law prevails.]
[Ed.: And remember that in all other cases, even if they are not here expressly moved and specified, if they are within the same reasoning they are the same in law.]
27. H. 8. ca. 16. 32. H. 8. ca. 2. 34. H. 8. ca. 5.
Sect. 531. 37. Ass. p. 38. Ass. p. 9. 12. E. 4. 9. & c.
Glanvil. lib. 7. ca. 3. 4 Bract. lib. 2. c. 30. fo. 65. Britton cap. 119. Fleta lib. 6. cap. 1. & 2.
[Ed.: that the direct line is always preferred to the transverse.]
Bract. lib. 2. cap. 30. fo 64. Fleta lib. 5. cap. 5 & lib. 6. ca. 1. & 2. Britton ca. 119. Mirror 11. ca. 1. sect. 3. 30. Ass. p. 47.
[Ed.: next cousin (or first cousin), collateral heir]
[Ed.: And so of the rest, for the nearer excludes the near, and the near the remote, and the remote the more remote.]
[Ed.: by right of representation.]
[Ed.: by right of proximity.]
19. R. 2 tit. gar. 100.
3. Ass. p. 47.
[Ed.: of however remote a degree he be.]
5. Edw. 6. tit. Administr. Br. 47. Ratcliffes case ubi sup. See after in the Chapter of Socage.
(p) Pl. Com. 293. b. Osbornes case.
(q) Pl. Com. 27. b.
[Ed.: because a maxim is of the same worthiness and most certain authority as something which is completely proved to everyone.]
(r) Sect. 90. f. 48.
(s) 12. Hen. 4. Glanvill lib. 7.cap. 1. Bract lib. 2. cap. 29.
[Ed.: the ancient principles of our law are not to be disputed.]
(t) Lib. Rub. cap. 70.
[Ed.: If anyone dies without children, his father and mother succeed to the inheritance, or the brother and sister if there are no father and mother, and if he does not have those then the sister of his father or mother, and thereafter those who are next in the parentela (ancestral line) succeed; and so long as there is someone of the male sex who may have the inheritance, a woman does not inherit.]
(u) Britt. ca. 119. Fleta lib. 6. ca. 1. Numb. ca. 27. Ratcliffes case ubi supra.
[Ed.: An inheritance naturally descends to the heirs by way of inheritance, but never naturally ascends. For the right descends like a weight falling downwards in the direct or transverse line, and it never reascends in the same path by which it descends after the death of ancestors, but sometimes ascends collaterally to someone by reason of the want of heirs below.]
Sect. 5. 8. 90. 96. 52. 53. 57. 59. 65. 99. 130. 146. 156. 169. 178. 231. 293. 302. 352. 360. 376. 377. 396. 410. 440. 441. 346. 347. 462. 431.
(b) Sect. 20. where a number other are quoted.
[Ed.: of authority and proclamation]
(c) Sect. 67. 132. 170. 234. 241. 263. 613. 614.
[Ed.: from writing if sound argument.]
(d) Sect. 58. 170. 183. 369.
(e) Sect. 248. 249.
(f ) sect. 88. 74. 76. 145. 332. 371. 372. 445.
(g) 108. 733.
(h) sect. 170. 264. 283. 302. 429. 464. 629. 633. 686. 340. 418. 613. 686. 739.
(i) sect. 697. 59. 104. 288. 332. 478.
(k) Sect. 87. where many others are quoted.
(l) sect. 13. where many more are quoted, but see chiefly. sect. 281.
(m) sect. 438. 439. 441.
(n) sect. 18.
(o) 301. &c.
[Ed.: from the similar.]
(p) 291. 298. 409. &c.
[Ed.: from the equal.]
(p) 129. 440. [note, this note is mis-designated “p” duplicating the sequence, in the first edition.]
(q) sect. 46. 194.
(r) sect. 722.
[Ed.: As if uttered by a deaf-mute.]
(s) sect. 114. 223. 129. 211. 107. 108.
(t) Sect. 202.
(u) Sect. 440.
(w) Sect. 481.
(x) Sect. 13. &c. Sect. 731. 692. 635. 633. 441. 103. 193. 154. 140. a.
[Ed.: a blessed exposition, and from the innermost parts of the cause.]
(y) Sect. 464.
(z) Sect. 731. 685.
(a) 17. Edw. 3. Rot. parl. nu. 19. 25. Edw. 3. cap. I. Regist. inter Unra regia, 61. &c.
(b) Commonly spoken of in Parliament Rols.
[Ed.: The law and custom of parliament. This law is to be sought out by everyone, but is unknown to many, and known to very few.]
(c) 13. Edw. 4. 9. Lib. 7. Calvins case, Pl. Com. Sharingtons case.
(d) This Law appeareth in our Bookes and judiciall Records.
(e) These are of record in Rolls of Parliament.
(f ) Whereof you shall read in our Author, and in our Bookes.
(g) Rot. Parl. 2. Ric. 2. nu. 3. 13. Ric. 2. ca. 2.
[Ed.: In a state the laws of war are to be especially upheld.]
(h) Lib. 7. Candries case articul. super cartas, &c.
(i) 37. Hen. 6. Fortese. cap. 32. 13. Hen. 4. 4. 28. H.8. ca. 15.
(k) Carta de Foresta, &c. the Eires of the Forests.
(l) 27. Edw. 3. ca. 17. Wi.ca.23. 4. Hen. 5. cap. 7.
(m) Mirror des Justic. c. 1. Bract. 334–444. Fleta lib. 2. ca. 51. 52. &c. 5. Edw. 3. 11.38. Edw. 3. 27. Edw. 3. 7. cap. 8. Fortesc. 32. F. N. B-117. 13. H. 4.9. Rot. parl. 6. Hen. 4. nu. 43. 10 Hen. 7. 16. 47. Edw. 3. 21. 30. E.1. Account. 127. Carta Mercatoria 31. E. 1. Rot. patent.
(n) Mich. 41. Edw. 3. coram Rege in Thesaur. 12. E. 3. 5b. Hen. 8. fol. 5. Rot. pat. an. 20. E. 1. lib. 7. Calvins case, fol. 21. Regist. fol. 22.
(o) 50. Edw. 2. Rot parl. 50. Edw. 3. Rot. patent. &c.
(p) 31. Hen. 6 ca. 3. 4. Ia. c. 1.
(q) 11. Hen. 4. 11. 10. Ass. 27. 34. Ass. p. 20. 19. E. 2. Quar. imped. 177. 45. Edw. 3. 13. 40. Ass. p. 6.
[Ed.: And his uncle enters in the land (as by the law he ought).]
(r) 11. Ass. p. 6. Doct. & Stud. 12b. 22. H. 6. 35.
(s) 19. Hen. 6. 61.
[Ed.: the right to present a church or benefice; a patronage.]
Vid. sect. 603 718.
Vid. sect. 735. 736. 737.
35. Hen. 6. 33. John Crook’s case.
Vid. Sect 354. an excellent point.
(a) Pl. Com. Sir Edward Clere’s case 47.
(*) Fleta lib. 6. ca. 1. 2. &c. Bracton lib. 2. fol. 65. 67. 68. 69. &c. Britton ca. 119. 24. Edw. 3. 50. 36. Edw. 3. 29. 30. 38. 49. Edw. 3. 12. 49. Ass. p. 4. 12. Edw. 4. 14. Pl. Com. 445. & 450. 7. Edw. 6. Dyer 6. 24. Edw. 3. 24. 37. Ass. 4. 40. Edw. 3. 9. 42. Edw. 3. 10. 45. Edw. Releases, 28. 7. Hen. 5. 3. 4. 8. Ass. 6. 35. Ass. 2. 5. Edw. 4. 7. 3. Hen. 5. 21. Hen. 7. 33. 40. Ass 6. Ratcliffs case lib. 3. fol. 42.
[Ed.: it refers to the person from whom a purchase is made.]
(b) Bracton, ubi supra. Fleta, ubi supra. Britton, ca. 118. 119. Pl. Com. 445. Clere’s case. Tr. 19. Edw. 1. in Banco Rot. 25. Lincoln. Will. Seels case.
(c) Britton, fol. 15. fleta, lib. 1. ca. 18. Pl. Com. 445. 446. &c. Clere’s case.
(d) 19. Ric. 2. garr. 100.
Britton ca. 118. 119. Fleta lib. 6. ca. 2.
5. Hen. 7. 24.
(m) 7. Hen. 6. 4. Lib. 1. fol. 100. Shelleyes case. [note: the note designations here leap to “m.”]
(n) 5. Edw. 2, tit. Arowry, 207.
(o) 5. E. 2, Arowry 207.
[Ed.: name of statute of 1290.]
[Ed.: because many things pass when aggregated with something else which do not pass by themselves.]
(p) 5. Edw. 4. 4. lib. 1. fol 100. Shelleyes case. 27. Hen. 8. Dyer Buckenhams case. 32. Hen. 8. gard. Brook 93, 13. Hen. 7. 6.
(q) 16. E. 3. age. 46.
(r) Pl. Com. 292. & 515. See more on this in the chapter of Warranties.
(s) 38. Edw. 3. 12.
[Ed.: an intermediate tenancy held by a woman.]
(t) 39. Edw. 3. 29. 49. Edw. 3. 12.
[Ed.: And so from the father’s side to the father’s heirs, and, conversely, from the mother’s side to hers.]
(u) Vide sect. 130. Glanvill lib. 7. cap. 17. Bract. lib. 3. fol. 118. Fleta lib. 5. cap. 5. & lib. 3. cap. 10. Britton ca 37. & cap. 119. F. N. B. 100. Tr. 19. E. 1. in Banco Rot. 25.
(w) Fleta lib. 6. cap. 1. Ockam cap. quod non absolvitur, &c.
[Ed.: The chief lord takes the place of an heir whenever the blood of his tenant is extinguished by default (i.e. of kin) or misconduct. And he to whom the reversion of the tenement was made by the condition of the gift shall take the place of the heir.... Formerly those things were called escheats which, on the death of those who hold of the king etc., when there is no heir by reason of blood, go back to the fisc.]
(x) Pl. Com. Dame Hales case.
[Ed.: either for defect of blood . . . or through the wrongdoing of the tenant . . . because he has been hanged by the neck, or has abjured the realm, or has been outlawed.]
(y) Pl. Com. in Nichols case.
(z) 38. Edw. 3. f. 37. 30. Hen. 6. 5. Bract. 1., tit. de Forf. Staunf. pl. cor. 192. and according to this diversitie was it resolved in 5. Hen. 6. as it appeareth by my Lord Diers Manuscripts.
(a) Mirror ca. 1. sect. 5. 5 1. Hen. 3. statutum de Scac. Britton fo 23. 34. Flet. lib. 1. cap. 36. & lib. 2 cap. 34. 35. Regist. 301. his Oath 18. Edw. 1. Rot. Parl. Part. 21. Edw. I. Rot. 1. 29. Edw. 1. stat. de Eschaetoribus. 14. Edw. 3. c. 8. 28. Edw. 1. ca. 18. F. N. B. 100. c. Stamf. Praer. 81. 1. Hen. 8. ca. 4. 3. Hen. 8. ca. 2. Capitula Eschaetriae in Vet. Magna Carta, fo. 160. 161. &c.
Sect. 147. 149. 248. 289. 417. 667. &c.
[Ed.: If he has no heir, etc., the land will escheat.]
(b) 7. Edw. 11. 12. Fitz. N. B. 33. g. Edw. 3. 16. 17. Edw. 2. Stat. de templariis.
(c) Britton cap. 119. Bract. lib. 2. cap. 30. 277. 279. 2. E. 3. 26. 3. Eliz. Dyer 138 Stanford praer. 52. 58. 3. E. 1. tit. avowrie. 235. 28 E. 3. discent. &c. Bra. lib. 4. 211. Fleta lib. 6. cap. 2. Glanvill lib. 7. cap. 1. Mirror cap. 1. sect. 3.
[Ed.: That which is earlier is more worthy, [and] he who is first in time is stronger in law. If someone has several children, the right of property descends to the firstborn, because he is the first in being.]
Glanvill lib. 7. cap. 3. & ca. 1. Vide Pl. Com. 2 29b.
[Ed.: When someone who has an inheritance dies etc., if he leaves several children, then a distinction is to be made as to whether he was a knight, or held by a knight’s fee, or a free sokeman, because if he was a knight or a tenant in chivalry then according to the law and custom of England the firstborn son succeeds the father in everything, etc., whereas if he was a free sokeman then the inheritance is divided amongst all the sons, etc.]
(d) Bract. lib. 4. 279b idem lib. 2. fo. 65. Britton cap. 119. I. E. 3. 19 John Giffords case. 31. E. 3 Conterpl. de voucher 88. 40. As.6. 4.2. Formd. 49. Vid. Ratcliffes case, lib. 31 fol. 40. 41.
(e) 7. E. 4. 15.
Britton cap. 119.
[Ed.: The brother’s possession of an estate in fee simple makes the sister to be heir.]
(f ) 24. E. 3.24.30. 31. E.g. Count de Vouch. 83. 32. E. 3. tit. Voucher. 37. Ass. p. 4. 40. E. 3.9. 42. E. 3. 10. 39. E. 3. 10. fol. 13. 7. H. 5. 3.
(g) 5. E. 4. fo. 7. Pl. Com. fo. 58. in Wimbishes case.
(h) 10. Ass. 17. 34. Ass. 10. 31. E. 3. Count de Vouchee 88. 32. E. 3. tit. Vouch. 94.
(i) 11. H. 4. 11. 40. E. 3. 30. 41. E. 3. 13. 40. Ass. p. 6. Ratcliffes case, lib. 3. fol. 41.
(k) 5. E. 4.7 h. 3. H. 7.5. 8. Ass. p. 6. 45. E. 3. tit. Releases, 28.
H. 5. 34. per Halls & Logdington. 35. Ass. p. 2.
(l) 14. E. 2. Bastard 26. Vid. Sect. 399.
[Ed.: When a man has a bastard son, and afterwards marries the mother and by her has also a legitimate son, the elder son is “bastard eigne,” and the younger son is “mulier puisne.”]
(m) 7. H. 5. 2. 3. 4i.
21 H. 7. 33n.
(g) 19. F. 2. Quare imped. 177. 3. H. 7. 5.
(h) 7. E. 3. 66. tit. bar. 293. 3. H. 7.5.
(i) 8. E. 3. 11. 40. E. 3. 12. Ratcliffes case, lib. 3. F. 41.
[Ed.: by the form of the gift; by the designation of the giver and not by the operation of law.]
(k) Bracton lib. 2. fo. 65. & lib. 4 fol. 279. Britton cap. 119. Flet. li. 6. c. 1. 24 E. 3. 30.
[Ed.: Possession is, as it were, the position of the foot.]
[Ed.: of fee simple.]
[Ed.: causes the sister to be heir.]
(l) Ratcliffes case, lib. 3. fol. 42.
[Ed.: the sister is the born heir.
[Ed.: an heir born.]
(m) Britton cap. 119.
[Ed.: Law of the Crown.]
6. H. 4. 2.
(n) 24 H. 6. fol. 34. Pl. Com. sol. 245. 25 E. 3. ca. de natis ultra mare.
Pl. Com. ubi supra.
Pl. Com. fol. 247.
Pl. Com. 238. 1. H. 7. fol. 4
(o) 43. E. 3. fol. 20.
[Ed.: (by) law of the Crown, and so it follows.]
[Ed.: Which he claims to be his right and inheritance.]
Sect. 45, 46. 57. 59. 80. 100. 146. 164. 170. 184. 229. 243. 259. 274. 280. 293. 300. 305. 419. 420. 421. 489. 632. 697. 749.
(a) Sect. 732. Bract. Lib. 2. fo. 62. b. Fleta, lib. 6. cap. 1.
[Ed.: when the lord has waived his court.]
[Ed.: A writ in Chancery to protect a tennant-in-chief who has been dispossesed of his lands.]
(b) Regist. fol. 1, 2. Regist. Fo. 4. 232. 49E.3. 22. 7H. 4. 5. 10H. 6. 38. 6 E. 3. 30. Pl. Com. Wimbeshe’s case, 47. & 58. b.
6. E. 3. 30.
[Ed.: of his inheritance.]
W. 2. ca. 5.
I. E. 3. tit. quare Imped. 43. 35. H. 6. 34. F. N. B. 34 b.
(c) Lib. 6. fol. 5a. 53. Countes de Rutlands case, lib. 8. fol 16. 17. the Princes case.
[Ed.: The king, etc. to E. B. of D., knight, greeting. Because, by the advice and consent of our council, we have ordained our certain parliament to be held at Westminster on the twenty-first day of October next coming, for certain arduous and urgent business concerning the estate and defence of our realm of England, there to have discussion and treaty with you and with the prelates, great men and peers of our said realm: we, firmly enjoining, command you upon the faith and allegiance which you bear unto us, considering the arduousness and imminent dangers of the said business, that you, leaving aside all excuses whatsoever, be there personally at the said day and place with us and with the prelates, great men and peers mentioned above, to treat and give your advice upon the said business, etc.]
Lib. 6. fol. 52. 53. Countesse of Rutlands case, 8. H. 6. 10. 48. E. 3. 30. 35. H. 6. 46. Pl. Com. 223.
(d) 35. H. 6 46. 48. E. 2.30b. 43. Ass. p. 6. 22. Ass. p. 24. Regist. 287. 11. E. 3. breve 472. 20. E. 4. 6.
(e) Lib. 6. fol. Countes de Rutlands case, 2. H. 6. 11. 22. Ass. 24. 12. E. 3. breve 254. 3. H. 4. 19. 11. H. 4. 25. Vide Fleta lib. 6. ca. 10.
(f) Lib. 4. fol. 118. Actons case, Tempore Mariae Reginâ. Brooke nosme de dignitie 69. 14. H. 6. 18. 2. H. 6. 11.
[Ed.: If a noblewoman marries someone who is not noble, she ceases to be noble.]
(g) 22. H. 6. 52.
[Ed.: and likewise of the rest.]
(h) Lib. 9. fol. 97. 98. Sir George Reynels Case.
[Ed.: as from the workshop of justice.]
Vide sect 88. 97. 96. 101. 157. 234. 308. 383 412. 480 433. 514. 643. 644. 657. 660. 692. 701. 729.
[Ed.: Plain truths need not be proved.]
[Ed.: that such and such was seised in his demesne as of fee.]
Mirror des Justices.
W. 2. cap. 39.
[Ed.: And know, my son, that it is one of the most honorable, laudable and profitable things in our law to have the knowledge of pleading well in actions real and personal, and therefore I advise you especially to employ your effort and care in learning it.]
[Ed.: placitum (plea) (is derived) from placendo (pleasing), because pleading well pleases above all.]
[Ed.: by antiphrasis, because it does not please.]
Bract. lib. 4. fol. 253. Idem lib. 5. fol. 372. Britton fol. 205. 206. Fleta lib. 5. cap. 5. Stanf. praer. 8.
Pl. Com. fol. 191. Wrote sleys case.
[Ed.: in his demense as of fee, that is, of a demense fee, or demesne land, or demense rent.]
[Ed.: four bovates (each 12–15 acres) of ‘inland’ (i.e. demesne) land, and ten bovates in service.]
[Ed.: As of fee.]
Briton 205. 206. optime. Fleta lib. 6. cap. 5. Idem lib. 3. cap. 15.
[Ed.: as son and heir.]
[Ed.: and likewise of the rest.]
[Ed.: ut (as) denotes the truth itself.]
(i) 7. E. 3. 63. 24. E. 3. 74. 34. H. 6. 34. 19. E. 3. Quar, imp. 154. Mirror cap. 2. sect. 17. [Ed.: “Advowson” is the right to control a church or beneficence.]
[Ed.: Desmesne as of his fee . . . control.]
(k) Lib. 6. fol 51. Boswels case.
(l) 8. E. 2 Presentment al Eglise 10. 7. E. 3. 39. 27. E. 3. 89. 29. E. 3. 5. 31. E. 3. Estoppel 240.
(m) 7. E. 3. 63. Bracton 263. 372. Flera lib. 5. cap. 5.
[Ed.: Demense is what someone has to (supply) the table (i.e. to provide food), and for his own use, as ‘board-lands’ are in English. . . . Demesne is land set aside to (supply) the table, for his own use. It is also called demesne to distinguish it from what someone holds in service.]
[Ed.: of the advowson as of fee and right.]
7. E. 3. 4.
45. E. 3. 1.
(n) W. 2. ca. 5
(o) Bract. lib. 4. fo. 240.
[Ed.: He to whom the right of advowson belongs may be called the avowee (patron), since he may present to the church in his own name and not in someone else’s.]
(p) Fleta lib. 5. cap. 14.
[Ed.: In so many words: A patron is he to whom appertains the right of presentation to a church, in such a manner that he may present to such a church in his own name, and not in the name of another.]
(q) Britton cap. 92.
(r) 33. H. 6. 11. b. per Prisot: 14. H. 6. 15. per Newton. 31. E. 1 droit 68. 69. F.N.B. 31 b. Lib. 10. 135. 136. R. Smiths case. 45. E 3. Fines 41. 45. E. 3. 12. 17. E. 3. 78. 17. E. 2. Dower 163.
[Ed.: between an advowson of a moiety of a church, and a moiety of the advowson of a church.]
[Ed.: That he permit him to present a suitable parson to the moiety of the church.]
[Ed.: to present a suitable parson to the church.]
(s) Britton fol. 235. 31. E. I. droit. 68. 97. F.N.B. 31. b. 5. 33. 5. H. 7. 8. 17. E. 3. 38. 75. 76. 7. E. 327. 8. E. 3. 425. 22. Ass. p. 33. 14. H 4 10. 33. E. 3. Quare. imp. 196.
[Ed.: of the moiety of an advowson.]
(t) Britton fo. 235.
[Ed.: If any church is given to various persons by one sole avowee (patron), no one may plead by assize of juris utrum and none of them may be impleaded without the other.]
(u) Fleta lib. 5. ca. 19.
[Ed.: Even if some church is divided between two, whether they have their goods in common or separately, nevertheless so long as they have one advowson neither of them may sue or be impleadedwithout the other.]
F.N.B. 49. 0.
[Ed.: An abolished writ which lay for the parson of a church whose predecessor had alienated the lands and tenements thereof.]
F. N. B. 49. p.
[Ed.: One should begin with the principal or more worthy matters.]
(a) Pl. Com. 3 9. &c 248. 19. H. 8. Dier 4. 29. H. 8. Dier 33. 16. Eliz. Dier 330. 2. Marie Dier 107. Austens case. Pa. 33. Eliz. Rot. 108. In Quar. imp. between the Queene Pl. and the Bishop of Lincolne, Hussey and others Def. 15. E. 4. 6. 8.
Bracton lib. 2. fol. 65. [Ed.: As to land, it may be held by men and women, jointly acquired.]
(b) Glavnill lib. 7. cap. I. Brit. c. 33. fo. 84 & 121.
Pl. Com. Wimbishes case 47.b. 1. H. 5. ca. 5.
(c) 9. H. 4. 24.
Mich. 10. Ja obiter in Com. banc in Pyms case.
(d) B. Cassanaeus fol. 13. Conc. 29. 30. E. 3. 2. & 3. 39. E. 2. 6. 9. 10. I. H. 5 tit Executors 108 tit. Descent Br. 43. 9. E. 4. 15. Madam Wiches case.
(e) Vide 28. H. 8. 24.
[Ed.: principal [or] hereditary thing.]
Int. adjudicata coram Rege Tr. 41. E. 3. lib. 2 fol 104. in Thesaur. Sect. 241. 242. &c.
[Ed.: The custom of the hundred of Stretford in the country of Oxford is that the heirs of tenements within the aforesaid hundred, after the death of their ancestors, have [and have been accustomed since time immemorial to have] a principal, in English ‘heirloom’, that is to say, from whatever kind of chattels, utensils, etc., the best cart, the best plough, the best cup, etc.]
[Ed.: The degrees of relationship, etc.]
3. E. 3. 32 18. E. 3. 46. 18. Ass. p. 5. 1. Mar. Di. 46. Pl. Com. 251.
[Ed.: Examples illustrate, but do not restrain, the law.]
Bract. lib. 4 fol. 186.
[Ed.: Equity is the assemblage of things that make equality among all people, and that in equal parts through reason brings law and adesirable judgment.... Equityistheperfectionofthatreasonthatinterprets and improves the written laws; no written law can be understood but that it consists of true reason. Equity is nearly equality. The good judge (is one who) follows equity and good decision andprefersstrictlyequitable decisions. And the law seeks equity.]
(f) 18. Ass. p. 5. 18. E. 3. 46. 33. E. 3, Taile 5. 3. E. 3. 32. Il. Com. Seigniour Barkleys case. 1. Mar. Dy. 46. V. Sect. 24.
(a) 31. El. ca. 1. in Doomesday.
(b) Reg. 153. F.N.B. 127. 4. E. 2. Vouch 244. Six acres of land may be parcell of a house.
[Ed.: A writ by which one tenant in common could compel his cotenant to contribute towards the repair of common property.]
[Ed.: [not] for a house [but] for a messuage.]
(c) 22. E. 4. 27. 34. H. 6. 40.
(d) Bract. li. 2. ca. 5a. 5b.
[Ed.: How long reasonable time ought to be is not defined by law, but depends upon the discretion of the judges.]
(e) 2. H. 6. 15. 21. H. 6. 30.
[Ed.: house and its appurtenances.]
[Ed.: Law is the perfection of reason.]
Tr. 7. E. 3. fol.29.
[Ed.: if he will perform it in his own person, or by some other good man if for reasonable cause he is unable to do it himself.]
[Ed.: for reasonable cause.]
[Ed.: preposterous reading.]
[Ed.: premature practice.]
[Ed.: A wise man begins with the last.]
[Ed.: Many things have been introduced into the common law, with a view to the public good, which are inconsistent with sound reason.]
[Ed.: Public Rights ought not to be decided promiscuously with private.]
[Ed.: a remote possibility.]
[Ed.: When the reason of the law ceases, the law itself ceases,]
[Ed.: in chief,]
6. H. 3. Avowrie 242. F.N.B. 83. 84.
[Ed.: No one serving God should be wrapped up in secular affairs.]
[Ed.: That it is not defined in law.]
Fleta lib, I. cap. 42.
[Ed.: and it signifies an acquittal of murder in battle.]
[Ed.: To be free of the burdens of arms.]
Livius. [Ed.: That a knight ought to care for three things: that he should have a stout and agile body, arms apt to be taken up for the empire, [and thirdly] to take care for God and the emperor.]
[Ed.: The wise man does not always go with one step, but goes one way; does not change himself, but adapts.]
[Ed.: It is for the best leader to understand and conquer, and prudently to give way to opportunity. Chance has much influence on human affairs, even more in war.]
[Ed.: What is so needful as always to bear arms, with which you may be protected?]
Lib. 6. fol. 27. the Souldiers case.
[Ed.: Where by showing themselves they make a prelude to battle.]
[Ed.: to assess or review the army.]
Lamb. fol. 135. b.
[Ed.: On one same day throughout the realm, so that no one should be able to lend arms to his servants and friends, nor to borrow them, and defraud the lord king’s justice and offend the king and the realm.]
[Ed.: No element in its own place is heavy.]
Glanvile lib. 2. cap. 6. &c.
[Ed.: Justice, in its abstract form.]
[Ed.: Justices, just men as it were in concrete form.]
[Ed.: Justices of the Bench, etc.]
[Ed.: Before our justices at Westminister.]
[Ed.: before ourself (that is, the king) wheresoever we shall then be in England.]
26. Ass. p. 24. 4. E. 3. fo, 19. Bracton lib. 3. fol. 105b. Britton fol. I. & 2 Fleta lib. 2. cap. 2. Mirror. cap 5 Sect. 1. Fortescue cap. 51. See in the preface to the third part of my Reports.
[Ed.: Common pleas shall not follow our court but shall be held in some certain place.]
Mirror. cap. 5. sect. 2. Fleta lib. 2. cap. 54.
[Ed.: And those things which cannot be determined before them (that is, the justices in eyre), on account of the difficulty of some points, shall be referred to our justices of the Bench and determined there.]
[Ed.: Assizes of darrein presentment shall always be taken before the justices of the Bench, and determined there.]
[Ed.: he dwells or demurs in law.]
[Ed.: which count, etc., and the matter contained in the same, is insufficient in law, etc.]
[Ed.: because the plea, etc., and the matter contained in the same, is in sufficient in law, etc., wherefore for want of a sufficient count (or plea), etc. he prays judgment, etc.]
[Ed.: that the aforesaid plea, and the matter contained in the same, are good and sufficient in law, etc.; and he prays judgment.]
Vid. Bract. lib. 5. fo. 352.b.
14. E. 3. cap. 5. statute. 1.
Rot. Parlia. 14. E. 3. ca. 3. a proceeding in Sir John Stantons case upon difficultie in the Court of Common Pleas. Vide Britton fol. 41. 21. E. 3. 37. 38. 39. E. 3. 1. 21. 35. 40. E. 3. 34. 13. H. 4. 3. 4.
(a) 4. 3. c.14.
(b) Bracton lib. 1 cap.2. nu. 7. Brit. fol. 41. I. E. 3. 7. 8. 2. E. 3. 5. 7.
[Ed.: But if such things have never happened before, and their judgment is obscure and difficult, then the judgment shall be put in respite until the great court, and there they may be determined by advice of the court.]
(c) 17. E. 3. 50. 6. 47. E. 3. 13. 14. 5. H. 7. 1. 13. b. 4. 7. b. Pl. Com. 85. 411. 172. 48. E. 3. 15. 2. R. 2. inquest. 2. 38. E. 3. 25. 11. H. 4. 5. 75. 3. E. 4. 2.
(a) Lib. 3. fol. 57.Linc. Coll. case Lib. 5. fol. 74.Wymeke case. Lib. 10. fol. 88.usque. 9th. Doctor Leyfields case.
(b) 12. E. 4. 7. 31. E. 3. estoppel. 244 33. H. 6. 9. 10. 22. E. 4. 50. I. H. 7. 21.
(c) 14 H. 4. 31. 37. H. 6.6.
(d) Lib. 5. fol. 104. 2. Bakers case.
(e) 38. H. 8. Dyer.53.
[Ed.: if the relatives complain.]
[Ed.: that heirs shall be married without disparagement etc.]
[Ed.: if the relatives complain, that is, grumble among themselves.]
[Ed.: but query concerning this.]
9. H. 3.
Vide Lib. 8. the Princes case.
[Ed.: Elephantine Charter.]
Bracton, 414. & 291. Fleta, lib. 2. cap. 48. & lib. 3. cap. 3. Mirror, cap. 2. § 18. Britton, fol. 177. b.
[Ed.: libertates (liberties), because they make men liberos (free).]
[Ed.: Great was once the reverence of Magna Carta (the great charter).]
[Ed.: The Confirmation of the charters, a statute accepting Magna Carta as the Common Law, and declaring void judgements contrary to it.]
25. Edw. 1.
5. Hen. 3. Mord. 53. Math Paris, 246. 276. 248.
25. Edw. 1. cap. 2.
42. Edw. 5. cap. 1.
[Ed.: that heirs shall be married without disparagement,]
Vide Petitiones coram Domino Rege in Parliamento, fol. 3. 18. Hen. 6. 39. Hen. 6. 39. per Ashton 6. Eliz. Dier, 229. 23. Eliz. Dier. Nullum breve de errore de judicio in 5. port, quia nullum breve repetitur. 3. Edw. 3. 50. 11. Hen. 4. 7. & 38.
[Ed.: I consider that dangerous which is not approved by the example of good men.]
Vide Le statute de Marlebridge, cap. 27. In custodia parentum.
[Ed.: In the place of a parent; instead of a parent; charged with a parent’s rights, duties, and responsibilities.]
[Ed.: according to the disposition of the relatives.]
V. Sect. 87. 139. 201. 269. 440. 478. 655. 722
[Ed.: Nothing that is inconvenient is lawful.]
40. Ass. 27.
Littleton fo. 50. b. 42. Edw. 3. 5. 28. Edw. 3. 395. 20. Hen. 6. 28.
[Ed.: Nothing that is against reason is lawful.]
[Ed.: No one is born an artificer.]
[Ed.: is the highest reason.]
[Ed.: No man ought to be wiser than the laws:]
[Ed.: Therefore query concerning this.]
[Ed.: Prescription is a title based on usage and time [for] taking something with authority of law.]
12. Edw. 4. 1. 2. Mariae, Br. Preascr. 100. 6. Edw. 6. Dier 71. 14. Edw. 3 Bar. 277. 43. Edw. 3. 32. 7. Hen. 6. 26. 22. Hen. 6. 14 16. Edw. 2. tit. Presc. 53. 45. Ass. 8. 40. Ass. 27. 41. 21. Edw. 4. 53. 54.
Bract. fo. 51. 52.
[Ed.: Ownership is transferred without title and delivery by usucaption, that is, by long, continuous and peaceful possession. Long, that is, for a period of time defined by law. I say ‘continuous’, [that is], provided it is not lawfully interrupted. I say ‘peaceful’, because if there is a dispute, the result will be as before, if the dispute is rightful: as where the true owner immediately after an intruder or disseisor has entered into seisin tries to repulse and expel them with force, even though he is unable to perfect what he has begun, provided that he is diligent in beginning and prosecuting the attempt. Long use neither by force, nor by stealth, nor by permission, etc.]
Bract fol. 222. b.
13. Edw. 4. 6.
21. Hen. 6. Prescrip. 44. 21 Edw. 4. 6. 1. Hen. 23. 9. Hen. 7. 11. 20. 7. Hen. 6. 45. 6. Edw. 3. 32. 42. 45. Edw. 3. 2 2. Edw. 4. 26.
(*) Fleta lib. 1. cap. 25. Brit. fo. 6. & 15. 44. Ass. p. 8 49. Edw. 3. 3. Saunf. Pl. Cor. 21. 51. Lib. 5. co. 109. 110 Lib. 9. co. 29.
(c) 22. Edw. 3. Coron. 241. Hen. 7. 11. 20. 18. Hen. 6. prescrip. 45. 11. Hen. 4. 10. 21. Hen. 7. 33. 9. Edw. 4. 12. 39. 3. 35. 46. Edw. 3. 6. 11. Hen. 6. 25 F.N.B. 91. 1. Hen. 7. 24. Stanf. pl. Cor. 38 44. Edw. 3. 4 22. Edw. 4. 43. 14. 3. Edw. 3. Brook prescript. 57. 44. Ass. pl.
(*) 8. Hen. 6. 16.
(f) 12. Edw. 4. 16. 32. Hen. 6. 25 12. Eliz. Dier 288. 289
[Ed.: The goods and chattels of traitors, felons, etc.]
11. Edw. 3. tit. issue 40.
15. Edw. 3. tit. judgement 133. 14. Edw. 3. ibid. 155.
[Ed.: a modus (i.e. a customary or covenanted scheme) for tithing.]
Mich. 43. & 44 Eliz. in a prohibition betweene Nowell pl. and Hicks Vicar of Edmunton defendant in the Kings bench.
(e) Bracton fo. 314
[Ed.: Every lawsuit and every action for wrongs is limited within certain periods.]
(f ) Regist. 158 Bracton fo. 373. 5. Ass. p. 2. 34. Hen. 6. 40
[Ed.: from the time of King Henry the elder.]
(g) Stat. de Mert. 20 Hen. 3. ca. 8
(h) West 1. an. 3. Edw. 1. c. 8 Vide W. 2. 13. Edw. 1. ca. 46
(i) Mirror ca. 5. sect 1.
[Ed.: It is an abuse to count of such a long time ago that no one may bear witness of sight and hearing, which generally does not last beyond forty years.]
Glanvil li. 13. ca. 3. & 34. Mirror, ca. 5. Sect. 4. Fleta. 1. 2. c. 38. & li. 4. c. 5. Britton fol. 79. 82. Bracton lib. 2. fol. 52. & fol. 179. 253. 373.
(k) 32. Hen. 8. cap. 2. see the second part of the Institutes. Merton, c. 8.
(l) Mich. 10. & 11. Eliz. Dier 278. Fitzwilliams cafe.
[Ed.: Writ to recover entailed property.]
[Ed.: Writ used by the issue in tail to recover entailed property.]
Lib 4. fol. 10. & 11. Bevils case.
(m) Lib 8 fo. 65. Sir Wil. Fosters case.
[Ed.: Writ to enforce a patrons right to fill a vacant benefice.]
[Ed.: Writ of assise that allows a person with right of advowdson to determine who had the right to fill a benefice and recover damages in another’s interference with this right.]
1. Mar. Parliam. 2. cap. 5. Vide 17 Edw. 3. 11. Pl. Com 371.b.
Vide 34. Hen. 6. 36.
[Ed.: A writ of right, or license for a person ejected out of an estate, to sue for the possession of it.]
[Ed.: That without delay you hold full right.]
Bract. lib. 4. fol. 230. Fleta lib. 4. cap. 24.
[Ed.: It is necessary to explain long time, and this long usage, that is to say, something which exceeds memory of men, for such time suffices for law.]
28. Ass. 25. 38. Ass. 18. 45. Edw. 3. 26. 5. Hen. 7. 10. 8. Hen. 7. 7. 11. Hen. 7. 21. Dier. 23. Eliz. 273.
[Ed.: Written words last.]
[Ed.: to hand on in memory.]
[Ed.: Custom, etc., supersedes the common law.]
Magna Charta cap. 35.
(n) 6. Hen. 7. 2. 8. Hen. 4. 34. 12. Hen. 7. 18. 31. Hen. 6. leet. 11. 18. Hen. 6. 13.
(o) 34. Edw. 1. tit. forest. Rast. 1. Edw. 3. cap. 2.
(p) Itin. pickering ann. 8. Edw. 3. Rot. 38.
[Ed.: That is to say, that the aforesaid Henry de Percy, and all his ancestors as tenants of the aforesaid manor, from time out of mind and without interruption, have held the aforesaid manor with the appurtenances outside the regard of the forest, and have had a woodward bearing a bow and arrows to make presentment of what ought to be presented concerning hunting alone etc., and have had in their woods of Semer forges and mines, and have cut down, given and sold their wood within the aforesaid manor at their will, without the view of the foresters, and have chased and taken foxes, hares, rabbits, etc., as the same Henry has above claimed.]
[Ed.: Against the assize of the forest.]
[Ed.: he might easily go in destruction of the wild beasts, etc.]
[Ed.: chasing and taking of roes in their aforesaid woods, inasmuch as [a roe] is a beast of venison of the forest, and trespassers convicted thereof shall make fine as for a trespass to venison,]
[Ed.: the living voice of the law itself.]
[Ed.: Writ against one who introduces a foreign power into the kingdom. Used to regulate the activities of Roman Catholics.]
[Ed.: the jurisdiction of the royal rights of the crown.]
For Statutes, Vid. 35. E. 1. stat. de Carlile. 25. E. 3. c. 22. 25. E. 3 stat. de provisors, 27. E. 3. c. 1. 38. E. 4 ca. 3. 2. R. 2. ca. 3. R. 2. c. 3. 12. R. 2. c. 5. 16. R. 3. c. 5. 2. H. 4 c. 3. & 4. 6. H. 4. ca. 1. 24. H. 8. c. 12. 25. H. 8. c. 19. 20. 26. H. 8. c. 16 1. Eliz ca. 1. 5. Eliz ca. 1. 5. Eliz ca. 13. Eliz. ca. 1. 2. 8 27. Eliz. c. 2. 39. Eliz c. 18. For Presidents, Vide Mich. 19 E. 3. coram Rege in Thesaur. Pasch. 44. E. 3. ibid. Melbornes case. Mich. 38. H. 6. ibid. The case of Rich Beauchamp and others. Hil. 25. H. 8. coram Reg. The case of Nic. Bishop of Norwich. Trin. 36. H. 8. Rot. 9. Coram Rege. The case of the Bishop of Bangor. Mich. 26 & 27. El. coram Rege, Perrot against D. Bevance & others. Booke of Entries, fo. 429. & 430 & ibid. Mich. 9. H. 7. f. 23.
[Ed.: Cause the said A. B. to be warned, etc. to be before ourself, etc.]
Booke cases, 21. E. 3. 40. b. 18. H. 68 9. E. 4. 2. 35. E. 3. 7. 24. H. 8 tit. Pramunire 16. 10. H. 4. 12. 27. E. 3. 84. 6. H. 7. 14 44. E. 3. 36. 11. H. 7. tit. Praemunire, P. 5. 17. H. 7. Justice Spillmans in Turberviles case Kilwey, fo. 195. Doct & Stud. lib. 2. cap. 32 Brooke, tit. Praemunire 21. Temps. E. 6. Bishop Barloes case.
(k) 24. H. 8. Brooke Coron. 196.
5. Eliz. ca. 1 Hil. 12. Eli. Trugins case resolved per les Justices, 7. H. 4. 20. Simon Beverleys case.
(l) 4. E. 4. 8. 1. E. 4. 1. b 30. E. 3. 4. 8. Eliz. Dier 24
(*) Mich. 9. E. 3. coram Rege Rot. 84. Warw.
[Ed.: He who is placed out of the Law,]
[Ed.: dead in the view of the law.]
[Ed.: with a volumus (we will) clause . . . that is to say, we will that in the meantime you shall be quit of all pleas and plaints, etc.]
[Ed.: [a writ of protection] because he is about to go.]
[Ed.: [a writ of protection] because he is remaining.]
[Ed.: because he is indebted to us.]
[Ed.: Public rights are to be preferred to private.]
[Ed.: Public rights ought not to be decided promiscuously with private.]
(a) 39. H. 6. 39. 3. H. 6 tit. protection 2. 13. R. 2 ca. 16.
[Ed.: For the business of the realm and the public good,]
(b) Mirror, cap 3. Sect. 23. Britton,281. Fleta lib. 6 cap. 7. 8. &c. Bracton.
[Ed.: for the common profit of the realm.]
[Ed.: Our service, as, to be in our force, and the defence of ourself and our people, etc.]
5. Marie Dyer 162
[Ed.: in safe custody.]
(c) 19. H. 6. 51. 30. E. 3. 21 F. N. B. 28. 1. 11. E. 3. Rot. par. 3. part for the Countesse of Warwick.
[Ed.: Because she is a laundress, or a nurse, or a midwife.]
(d) 30. E. 3. 1. 21. E. 4. 36. 31. H. 3. 97.
[Ed.: Profit . . . persistence [literally, lingering].]
(e) 35. H. 6. 3. 43. E. 3. 23 48. E. 37 4. H. 5. protection, 107
(f) 45. H. 3. protect. 37. 3 H. 6. 18. 30. 8. H. 6. 10 9. H. 6. 36. 40. E. 3. 18 32. E. 3 protect. 54. 21 E. 3. 14. H. 4. 16. 45. E. 3 tit. protect. 40. 14. E. 3 protect. 66.
[Ed.: Writ to the sheriff to require another to show cause why the plaintiff should not have the benefit of a matter of record, such as a judgment for a letter patent.]
(g) 24. E. 3. 26. 47. E. 3. 5 5. H. 5. 5. 38. E. 3. 1. F. N. B 28. g. 20. R. 2. Protect. 106 22. H. 6. 28. 9. H. 6 36. 45. E 3. 36. 17. E. 3. 24. 25. E. 3. 43. 24. E. 3. 26. 13. E. 3. protection 71. 1 4. E. 3. ib. 65. 63. 20. E. 3. ibid. 84
(h) 7. H. 4. 3. a
(i) 9. E. 3. protect. 80 81 32. E. 3. ibid. 55. 16. E. 2. ib. 77. 13. E. 3. ibid. 90 41. E. 3 ib 95. 41. E. 3. 32. 42. E. 3. 9 5. H. 5. 7. 3. H. 4. 15. 2. R. 2 protect. 45. 43. E. 3. ib. 31 2. H. 6. 22. 21. H 6. 41. 38 E. 3. 12. 7. H. 6. 21. 33. B. 3. protect. 116. 4. H 4. 4. 29 E. 3 41. 45. E. 3. 24. 28. 11 E. 4. 7. F. N. B. 28. K.
[Ed.: A writ to summon the venire of potential jurors.]
(k) 3. H. 6. pro. 2. 39. H. 6. 30. 44. E. 3. 12. 13. R. 2 ca. 16. 3. H. 4. 16. 11. H. 4 7. 7. E4. 27. 28. H. 6. 1. 17. H. 6. protect. 56 10. E. 3. 54. 13. E. 3. amerciament. 18. li. 7. fo. 7. 8 Calvins case. 13. R. 2. c. 16
[Ed.: For negotiations for the King.]
[Ed.: [because] he is remaining,]
[Ed.: while a plea is pending.]
(l) 4 H. 6. 22. 17. E. 3. 76 33. E. 3. tit protect. 115 34. E. 3. ibi. 124. 27. E. 3. 79 29 E. 3. protect. 85. 88. 2. E. 4. 15. 19. E. 3. protect. 82. 79 13. E. 3. ib. 72. 9. E. 3. 21. 3. id. 6. 55. 4. H. 6. 22. 11. H. 6. 14. 14. H. 6. 22. 21. H. 6. 10. 27. H. 6. 4. 28. H. 6. 1 35. H. 6. 58. 44. E. 3. 2. 16 48. E. 3. 8. 7. H. 4. 5. 14. H. 4 23. 27. E. 3. 78.
[Ed.: The “nisi prius” courts tried issues of fact before a jury and one presiding judge.]
[Ed.: We make known.]
(m) 22. E. 3. 4. 16. E. 3 protect. 47. 44. E. 3. 16. 3. E. 3. amerciament. 18. 35. E. 3 Protection 123
(n) 39. H. 6. 39. F. N. B 28. Fleta lib. 6. cap. 8 Temps E. 1 grand cap. 26
[Ed.: essoin of the king’s service.]
[Ed.: for one year.]
(o) Brit. fo. 282. 283. & 280 Fleta lib. 6. cap. 8. accord.
[Ed.: Some people have purchased letters of protection from us to last for a year, or two, or three years, and are nevertheless general attorneys, also by our letters patent; and these do well and wisely, for no great lord or knight of our realm can go away without our leave, for in that way the realm could remain unprovided with men of that sort.]
(p) 1. E. 3. 25
(q) 7. Co. 8. Calvins case. 7. E. 4. 29. F. N. B. 38 c. g. h 7. H. 4. 14. 19 H. 6. 35 38. H6. 3. 32. H. 6. 3. R. 2 Rot. Parliament nu. 21. 22 E. 4. protect. 18. 8. R. 2. ibi. 125. 11. H. 4. 57. regist. judic. 14. 36. H. 6. tit. protect. 27. 6. R. 2. ibid. 14 Regist. orig. 88. saepe.
[Ed.: upon the safeguard of Calais.]
[Ed.: Because he remains upon the high seas.]
[Ed.: the sea does not ‘remain’.]
(r) Bract. lib. 5 139,140 Britton 181. Fleta lib 6. c. 7. 8. &c. 14. E. 2. protect. 109. 34. E. 3. ibid. 122. 19 E. 3. ibid. 78. 33. E. 3 ib. 99 21. E. 3. 13.
(s) 10. H. 6. Protect. 105
[Ed.: Ten times as much (the penalty for a juror who takes money to give a verdict).]
(t) 39. H. 6. 39. 43. E. 3. 6 & 32. 27. H. 6. 1. F. N. B 28. 17. E. 3. 23. lib. 4. f. 35 Bozoms case. Bract. li. 5 fo. 139,140.
[Ed.: from which nothing is held,]
[Ed.: The form of the writ of dower in which there is a claim to property.]
[Ed.: Writ to enforce a patron’s right to fill a vacant benefice.]
[Ed.: An action to recover a benefice presented to a clerk, but usurped by a presentation by a spurious patron.]
[Ed.: Writ of assise which lay for the recovery of lands or tenements, where the claimant had been lately disseised.]
[Ed.: A speedy remedy,]
(u) 15. E. 3. tit. protection 52. 12. E. 3. ibid 69 31. E. 1. ibid. 112
[Ed.: Writ against a bishop who refuses to admit a clerk to a benefice.]
[Ed.: likewise concerning similar things.]
[Ed.: A writ of protection.]
(w) 19. E. 2 protect. 111 32. E. 3. ibid. 54
[Ed.: Writ for several to appear.]
(x) 23. H. 8. c. 3. 34. E. 1 protection 38. 7. H. 4. c. 4 1. R. 2. cap 8.
(y) 21. E. 3. 24. 31. E. 3 protect. 97. 1. 5. E. 4. 50 35. H. 6. 43. 46. 8. E. 4. 8 19. E. 3. 22. 13. E. 3. protect. 3. 73.
[Ed.: Writ sought to cure a matter of record based on a mistake.]
(a) Pasch. 12. Ja. regis in the Kings Bench
(b) 13. E. 3. protect. 72 Fleta 1. 2. c. 12. 40. E. 3. 18 48. E. 3. 18. 19. 37. H. 6. 32 21. E. 4. 19. 15. H. 7. 8 47. E. 3. 5. 17. E. 3. 68 14. E. 3. protect. 64 W. 2. cap. 45
[Ed.: Writ by which a reversion or remanderman may compell the life tenant to acknowledge his estate.]
[Ed.: Writ to enforce a judgment at the close of a case.]
[Ed.: Writ of execution for a sheriff to seize and sell property to satisfy a money judgment.]
[Ed.: to pleas and plaints, etc.]
(c) 20. E. 3. protect. 83
[Ed.: likewise concerning similar things.]
(d) 35. H. 6. 2. Artic. Super. Cart. 6. 46. E. 3. petition 19
(*) Lib. 2. co. 17. Lanes case. Lib 8. fo. 68. Trollops case. 20. H. 6. 25. 2. E. 4. 4 38. H. 6. 23
(e) 43. E. 3. protect. 96
(f ) 21. E. 4. 18
(g) 38. H. 6. 23
(h) 44. E. 3. 12. 47. E. 3. 6
(i) 13. R. 2. c. 16. 11. H. 4 70. 7. H. 6. 22. 22. H. 6. 50 30. H. 6. 3. 19. H. 5. 35 21. E. 4. 20. 1. H. 6. 6. 42 E. 3. 9. 44. E. 3. 2. 39. E. 3 4. 5. 20. E. 3. protect. 86 34. E. 3. ibid. 119
[Ed.: Certification of a writing not filed in the Record.]
(k) 44. E. 3. 4. 12. 47. E. 3. 6 34. E. 3. protect. 119 28. H. 6. 34. H. 6. 22 30. H. 6. 3. 32. H. 6. 4
[Ed.: The presents to be of validity if he happens to withdraw from guarding the aforesaid castle [or] if that journey happens not to take place, or if he comes back from overseas within that term.]
[Ed.: with the volumus (we will) clause, [namely], profecturae (those about to go) and moraturae (those remaining).]
(l) Registrum 281. b F. N. B. 28. b 33. H. 8. c. 29. in the praeamble. 41. E. 3. tit. Execution 38. 18. E. 3. ibid. 56 27. E. 3. 88. b 4. E. 4. 16. 3. Eliz. Dier. 197 Rot. pat. 27. E 3. part. I m. 2.
[Ed.: The king’s treasure is the foundation of war and the firm support of peace.]
(m) 25. E. 3. cap. 19
(n) 41. E. 3. 15. 17. E. 3. 73 29. E. 3. 13. 4. E. 4. 16.
[Ed.: Penalty for a juror who sells the vote or verdict.]
(o) Regist. saepe. F. N. B. 28. c.
(p) Vide lib. 7. fol. 8. 9. Calvins case.
(q) Register 280, c. F. N. B. 29. A. B. C. D. E. F. G. H. Register 280 Statut. de 14. E. 3 F. N. B. 30. A.
[Ed.: No medicine is the same for everyone,]
[Ed.: No precedent is the same for all purposes.]
[Ed.: Writ to recover lands and tenements, where the claimant had been lately disseised.]
Lib. 8. fo. 155. Lib. 9 fo. 13. Lib. 11. fo. 10.
[Ed.: The verdict is the dictum of truth, (as) the judgment is the dictum of law.]
[Ed.: And just as for questions of law the jurors do not answer but the judges; thus as for questions of fact the judges do not answer but the jurors do.]
[Ed.: The law arises out of the fact.]
[Ed.: That B. disseised him of twenty acres of land with the appurtenances,]
[Ed.: That he committed no tort or disseisin against the said A. therein, etc.]
[Ed.: That the aforesaid A. unjustly and without judgment disseised the said B. of the aforesaid twenty acres of land with the appurtenances, etc.]
(l) Trin. 33. E. 1. Coram Rege Nott. in Thesaur.
[Ed.: Every conclusion of a good and true judgment follows from good and true premises and the verdicts of jurors.]
43. Ass. 31. Staunf. pl. cor. 164. 165. 3. E. 3. coron. 284 286. 287. 44. E. 3. 44. 41. E. 3. Coron. 451.
40. E. 3. 15. 20. E. 3. amendment. 57. 18. E. 3. 49 in Cessavit. 30. E. 3. 23. 7. H. 4. 39.
[Ed.: Fully administered,]
17. E. 3. 47. 18. E. 3. 48. 22. E. 3. 1. 18. H. 3. 56. 15. E. 3. Judgement 58. 2. H. 5. 3. 7. H. 6. 5. 7. E. 4. 24. 28. H. 6. 10.
(m) Hill. 25. Eliz. in a writ of Error between Brace and the Queen in the Exchequer Chamber. Mich. 28 & 29 Eliz. inter Gomersal & Gomersal in account in the King’s Bench.
(a) 32. E. 3. Cessavit. 25.
[Ed.: The useful is not vitiated by the useless,]
Vid. Sect. 484. 485. Vid Sect. 58. 13. H. 3. garr. 26 15. E. 3. Ass. 322. 17. E. 3. 6. 18. Ass. 2. 35. Ass. 8.
[Ed.: to say the truth,]
[Ed.: the truth of the fact,]
(b) 1. H. 4 6. b. 27. H. 8. 22. b. Pl. Com. 515. Lib. 4. fol. 53. Rawlins case & ibid. Pledols case. Hil 31. Eliz. betweene Sutton & Dicons in the Common Place, the case of the Lease for years by Deed indented. 34. E. 3. Droit 29.
(c) 7. R.2 Coron. 108. Plo. Com. Freman’s Case, 211. 11. H. 4. 2. 20. Ass. 12. 16. Ass. 16. 22. Ass. 23 5. H. 7. 22.
[Ed.: A writ to stay the proceedings at law.]
Pasch. 24. H. 8. of the Report of Justice Spilman in the Kings Bench. 11. H. 4. 17. 35. H. 6. Examin. 17. 29. H. 8. 37. Dyer. 35. H. 8. 55. 4. & 5. Eliz. 218. 14. H. 7. 1. 20. H. 7. 3.
[Ed.: and likewise conversely.]
(d) Pasch. 6. E. 6. in the Common place.
(e) 11. H. 4. 16. 17. 3. Mar. Jurors Br. 8. Vide Dyer ubi supra.
Pasch. 6. E. 6. ubi supra.
(f ) 24. E. 3. 75.
21. E. 3. 18.
W. 2. cap. 30. 7. H. 4. 11. 8. E. 4. 29. 9. H. 7. 13. 23. H. 8 tit. verdict. Br. 85. 11. Eliz. Dier. 283. 284. 3. E. 3. Itinere North. 284, 286 43. Ass. 31. 26. H. 8. 5. 44. E. 3. 44. F. tit. Coron. 94 44. Ass. 17. 45. E. 3. 20. pl. Com. 92. 9. H. 7. 3. Vid. lib 9. 12. 13. Dowmans case. And see there many other authorities. 31. Ass. Pl. 21. 10. H. 4. 9.
(m) See more before in this chapter, Sect. 365.
10. Ass. 9. 21. Ass. 28. 17. Ass. 20. 31. Ass. 21 23. Ass. 2. 39. E. 3. 28. 44. E. 3. 22. 10. H. 4. 9. 7. H. 5. 5. 9. E. 4. 26. 18. E. 4. 12. 15. E. 4. 16. 17. 11. H. 7. 22.
[Ed.: Discretion is to know through law what is just,]
[Ed.: If you depart from the law, you will go astray, and all things will be uncertain to everybody.]
Lib. 10. fo. 4. case de Sewers.
[Ed.: according to your sane discretions.]
[Ed.: According to the law and custom of England.]
1. H. 3. 17. in Gracye’s case
[Ed.: According to form,]
[Ed.: [Learning] by rules is long, but by examples short.]
Vide Sect. 371.
[Ed.: Nothing is invented and perfected at the same moment.]
[Ed.: Time of peace.]
[Ed.: Time of war.]
Inter brevia de anno 1 E. 3. parte 1. & Pasch. 28 E. 3. inter adjudicata coram rege, lib. 2. fol. 37. in Thesaur. Pasch. 39 E 3. inter adjudicta coram rege in Thesaur. lib. 2. fol. 92.
[Ed.: Time of peace is when the Chancery and other king’s courts are open, whereby the law may be done to everyone in the usual way.]
[Ed.: Whether a land is at war or not ought naturally to be adjudged by the records of the king and of those who keep and govern the king’s courts by the law of the land, but not in any other way.]
14 E. 3. tit. Scire facias, 122. but more fully in the record at large
[Ed.: And amidst the clash of arms the laws are silent,]
[Ed.: Also in time of peace, which is so called to distinguish it from time of war, which is the same as wartime, and this is no different from time of right and time of wrong; for it is a time of wrong when there are violent oppressions which cannot be resisted, and wrongful disseisins.]
Bracton, lib. 4. fol. 240
Ingham cap. de novel disseisin.
[Ed.: Writ for recovery in peace of land taken during war.]
[Ed.: out of his land or tenement in time of war.]
Lib. 4. fol. 49, 50. Ognel’s case.
[Ed.: then in the tenure and occupation.]
6 E. 3. 41. 7. E. 3 darr. pres. 2. 18 E. 2. quare imp. 175 F. N. B. 31.
28. H. 8. Dy. fol. 9. Vid. W. 2. cap. 38. L’estat. de 21. E. I de juratis penendis in Ass. &c.
9. H. 5. fol. 5.
(f ) Fortesc. cap. 15.
[Ed.: Where the damages or debt in personal actions do not exceed forty marks of English money, it is not requisite that the jurors in such actions should be able to spend so much; nevertheless they shall have land or rent to a sufficient value, according to the discretion of the justices, etc.]
15. H. 7. 13. b. 13. H. 7. 7. b. 5. E. 4. 7. a.
[Ed.: Property held by one for the benefit, or use, of another,]
(n) 3. H. 6. 39. Challeng. 19. 21. H. 6. 39.
[Ed.: for a term measured by the life of another,]
(g) 27. H. 8. cap. 10.
[Ed.: Therefore, the same law gives a privity,]
27. E1. cap. 6.
[Ed.: Writ to a Sheriff directing him to summon a pool of jurors.]
Pl. Com. 352. b. in Delamere’s case, & 349. b. Lib. I. fol. 121. 123. 127. 140. in Chudleye’s case. Lib. 2. fol. 58. 78 Lib. 6. fol. 64. Lib. 7. fol. 13, 34.
Pl. Com. 352. b. in Delamere’s case, & 349. b. Lib. I. fol. 121. 123. 127. 140. in Chudleye’s case. Lib. 2. fol. 58. 78 Lib. 6. fol. 64. Lib. 7. fol. 13, 34.
[Ed.: A right in the thing,]
[Ed.: A right to the thing,]
Fortesc. cap. 25,26,27.
[Ed.: In the case where a man loses by default the tenement which was his wife’s right etc. . . . (the opening words of the Statute of Westminster II, c. 3).]
[Ed.: A form of plover known for its erratic manner of flight, and its oft-sold eggs.]
(a) 24. E. 3. 35. 28. E. 3. 96. 18. E. 2. Entrie 74. 3. E. 2. Entrie 7. 6. E. 3. 24. 7. E. 3. Ent. 62. 7. E. 3. 54,55 15. E. 4. 15. F. N. B. 217. d. Register 241.
(b) W. 2. cap. 5. Vid. 34. E. 3 Formedon 31. 11. E. 3. ibid. 31. 8. E. 3. 59. F. N. B. 217. d. 7. H. 7. 13.
[Ed.: A useful thing is not vitiated by what is useless,]
41. E. 3. fol.
Vid. Sect. 446.
31. E. 3. Gager deliverance 5. 22. Ass. 12. 38. E. 3. 1. 2. H. 4. 18, &c.
(a) I. E. cap. 15. stat. 3. 18. E. 3. cap. 1. & 6. 4. H. 4. ca. 2. 11. H. 6. c. 23. 2. E. 4. cap. 8, &c.
[Ed.: By the mouth and usage of the wise men of yore.]
[Ed.: The basic action to recover lands wrongfully held by another.]
(a) Pl. Com. fo. 75. 7. E. 3. 89.
Vide Bract. lib. 4. f. 321. Fleta. 5. cap. 34.
[Ed.: from the innermost part of the act.]
(b) Pl. Com. 246. b. Seignior Barkleye’s case li. 9. fol. 26. in case del Abbot de Strata mercella.
(c) 11. H. 4. 8o. 9. E. 4. 12. 21. H. 6. 28. 4. E. 4. 31. 12. H. 4. Formedon 15.
[Ed.: Provided that the bishop do consecrate the church.]
[Ed.: Provided that the bishop do lawfully consecrate the church,]
[Ed.: An impediment which in law gains no effect does not stand.]
[Ed.: He who sticks to the letter sticks to (only) the bark of the tree.]
[Ed.: The law is the more praised when it is approved by reason.]
[Ed.: Without modesty, no virtue, no knowledge, can preserve its place and dignity.]
[Ed.: The mildest of all men who was in the lands,]
[Ed.: Reason is the soul of law;]
[Ed.: because he brings unknown and obscure arguments to the light of reason and makes them bright:]
(y) 11. H. 4. 4. 37.
[Ed.: One shall not know of what metal a bell is (made) until it well beaten; nor can the law be well known without disputation.]
(*) 41. E. 3. 22. Kirton. Vide Sect. 377.
[Ed.: I have disputed this matter in order to learn the law.]
[Ed.: to know [and] to follow.]
[Ed.: The law is the more praised when it is approved by reason.]
Vid. Sect. 384. 443. 550.
[Ed.: Of the Generall, vid. li. 7 Calvins case per totum.]