Law, Book 2 · Chapter 1
CHAP. 1.
Of the Common Law of England, whereof the parts of the Realme, and of the perſons in it. Of Cuſtome, and Prerogatiue.
THE Common law of England is a Law vſed time out of mind, or by preſcription throughout the Realme. Lit. 38. That preſcription is a vſage time out of mind.For to plead that there is a cuſtome among merchants throughout the Realm, to aſſigne licences ouer, is not good, in aſmuch as that which is currāt throughout the Realme, is Common Law, not Cuſtome. And vnderunder the name of the Realme of England, it is plaine that (a)8. R. 2. cont. claim. 13.Scotland and Wales (b)2. Mar. 29.much leſſe (c)20. H 68. A fine with ꝓclamations according to 4 H. 7. ſhall not barre one in Ireland.Ireland, are not included. Neither is the maine ſea, that is to ſay, beneath the low water mark, parcell of the Realme: for there the Admiralls iuriſdiction (which hath nothing to doe of things within the Realme) doth only meddle and not the Common Law. But betweene (d) 22. aſſ pl. 93. The ſtatute 1. R. 2. cap. 5. prooueth the Common Law to be ſo.the high water marke and the low water marke, where by ordinarie and naturall courſe the ſea ebbes & flowes: the common Law & the Admiraltie hauehave diuiſum (e) Sir Henry Conſtables Coo. 107.imperium, one vponupon the water when it is ful Sea, the other vponupon the land when it is an ebbe.
Statutes 27. H. 8. cap. 26. Incorporateth Wales into England.
The whole Realme is diuided into ſeuerall (a) 12 H. 7. 18. Fineux.Counties or ſhires, And thoſe again into certaine villes or Townes: in many (b) Litt. conſuetudo ex rationabili cauſa vſitata priuat Communem legem.of which as alſo in diuers mannors wherof it commeth to ſpeake afterwards.
There be ſpeciall vſuages time out of mind, altering the common law which we (c) Lit. 46. & 58.call Cuſtomes.(d) 8. H 3. preſcip. 60.
As in Kent, the cuſtom of Gauelkind for all the heires males to inherit alike, and the wife not to loſe her dower, nor the heire his Land, though the husband or anceſtor 5. E. 4. 30.be hanged for felonie.
In London, if the debtor be fugitiue, that the creditor before the day of paiment may arreſt him to find better ſuertie. In many Boroughes the youngeſt ſonne to inherite Lit. 37.all. The wife to hauehave for her dower al her husbands lands: the lands there to be deuiſible by will.
A Countie is a part of the Realme, entirely gouerned by one Sheriffe vnderunder the King, but all ſubiect to the generall gouernment of the Realme. And therefore eueryevery Countie is as it were, an entire body of it ſelfe, ſo that vponupon a feoffement of lands in many townes in one Countie, liuerie of ſeiſin made in one parcell, in any one of the Townes in the name of all, ſufficeth for all the lands in all the other Townes within the ſame Countie. But vponupon a feoffement of lands in diuers Counties, there muſt be liuery of ſeiſin in eueryevery Countie.
Alſo an exchange of lands in one and Lit. 13.the ſame Countie is good by parroll: but in diuers it muſt bee by deede indented.
A man is driuen to take notice of manie things done in the ſame County, where he is, but not in another. As if an action of debt be brought againſt an Executor, he 2. H. 4. 11.may pay the aſſets which hee hath in his hands to anie other to whom the Teſtator ſtood indebted, till notice of the action brought againſt him, if the ſuit be in an other Countie, but not if it bee in the ſame Countie, for there hee muſt take notice of the action at his perill.
An Enqueſt alſo ſhall not take notice of things done in another Countie; but becauſe all are vnderunder one generall gouernment, therefore things done in ſeuerall ſhires ſhall be tried by a ioynder of Counties, the Iury that tryeth the principall may take notice of a thing acceſſary, though it bee in another Shire. As in an action of treſpaſſe, if the defendant plead 21. H. 6 51.an arbitrement in a forraine County, and iſſue bee taken vponupon it, and found for the plantiffe: the Iury there muſt acceſſe damages 9. E. 4. 40.for the treſpaſſe done in the other Countie.
Likewiſe in an action of debt againſt an Executor, who pleadeth, ne vnque administ. and giueth in euidence, a deed of gift made vntounto him by the Teſtator in his life time in another Countie, the Iurie muſt finde it vponupon paine of attaint. So of a releaſe pleaded to be made in another Countie in a writ of right.
There be in all thirtie nine Shires, Kent, Suſſex, Surrey, &c.
A Towne is a precinct, anciently conteining ten families, whereupon in ſome Countries they are called Tythings, within 18. H. 6. 13.one of which Tythings eueryevery man muſt bee dwelling, and finde fuerties for his good behauiour, elſe he that taketh him into his houſe is to bee amerced in the Leet.
Diuers of theſe Townes hauehave Hamlets in them, ſome ſpeciall places there bee in eueryevery County, out of any Towne or Hamlet.
The perſons within the Realme are to be conſidered either as one entire body, or as particular perſons.
As one entier Bodie, it conſiſteth of the King, and common perſons his ſubiects.
The King is the head of the Common-wealth, immediate vnderunder 1. H. 7. 10.God.
And therefore carrying Gods ſtampe and marke among men, and being, as one may ſay, a God vponupon earth, as God is a King in Heauen: hath a ſhadow of the excellencies that are in God, in a ſimilitudinarie ſort giuen him: Gods excellencies and honor ſtandeth partly in things incommunicable vntounto other, partly in ſuch as after a ſort hee maketh his creatures partakers of both: which the King is ſaid to hauehave ſome in truth, other by fiction, all by ſimilitude from the diuine perfection.
The firſt thing in God, and moſt proper to his ſacred Maieſtie, is, the infinitenes of his nature; who, as the philoſopher elegantly ſaith, onelyonly is that Circle, Cuius Centrum eſt vbique peripheria nuſquam. So ſay our bookes, that the king in a manner is euerie where, and preſent in all his Courts.
In a writ of Error vponupon a falſe Iudgment giuen for the King, no Scire facias ſhall go F. N. B. 21. b.forth ad audiendum errores, for the King is alwa…es preſent in court, & that is the cauſe that the forme of entrie in all ſuites for the King is Henricꝰ Hobart miles, Attornatus domini Regis generalis qui pro domino Rege ſequit' ven' hic in Cur. &c. and doth not ſay Dominus Rex per Henricum Hobart Attornatum 25. H. 8. Br. nonſuite 68. 3. El. 231.ſuum, &c. And therefore it is alſo, that the King cannot bee non ſuite, that all acts of Parliament which concerne the king or generall, and the Court muſt take notice without pleading of them, for he is in all, and all hauehave their part in him.
A ſecond thing proper vntounto God, is the diuine perfection. In the King no imperfect thing can be thought, no (a)35. H. 6. 26.negligence, or laches, no follie, no infamie, no ſtaine, or corruption of bloud. So as (b)3. Eliz. 213.nonage auoideth not his grant, though it bee of Lands which he hath in his naturall capacitie.
By (c)1. H. 7. 4.his taking of the Imperiall crowne vponupon him, all attainder of his perſon are purged ipſo facto.
The excellencies which God beſtoweth vponupon his creatures (for I wil touch no more but thoſe that the bookes of our Law doe ſpeake of, and ſuch as are leading rules to the caſes that you ſhal find there argued & debated) are firſt, Maieſtie, Soueraignitie, Power, Perpetuitie, & then that noble complement of Iuſtice, and truth.
The law ſaith Bracton giues vntounto the King Dominationem & poteſtatem.Bract. lib. 1. cap. 8.
He hath abſolute power ouer all: for by a clauſe of non obſtante he may diſpēce with 2. H. 7. grants 33.a Statute Law, and that (if he recite the ſtatute) though the ſtatute ſay, ſuch diſpenſations ſhall be meerely void.
The King cannot take, hee cannot part from any thing but by matter of Record. Bract. ibid.And that is for the Maieſtie of his perſon. (a) Stam▪ prae 73.His ſupreame ſoueraignetie makes him immediate (b) 7 E 4▪ 17.vnderunder God. Omnis quidem ſub eo & (c) 50 Aſſ. pl. 1. 18. Eliz 498.ipſe ſub nullo niſi tantum ſub Deo, ſaith Bract. It makes all lands to be holden of him, euerie ſurrender vntounto him to be good; no action to lie againſt him; for who ſhall command the king.
Nay, acts of Parliament do not bind him, 4. E. 4. 21. 1 El. 223. & 240 3. Eliz. 239.vnleſſe they concern the Commonwealth, or he be ſpecially named. Neither can the King be a Iointenant with any, though it be of land, or other things that he hath in his bodie naturall: for none can bee equall with him. And therefore if two purchaſe land to them and their heires, and one bee made King, they are now no more Iointenants, but tenants in Common. Laſtly for perpetuitie, the King neuer dieth, but in 4. El. 234.law it is ſaide the demiſe of the King, and a giſt vntounto the King, without ſaying more, trencheth to his ſucceſſors.
To come to the other two, the power of 4. Mar. 177. Potentia iniuriae est impotencia naturae.God is alwais ioined with Iuſtice & truth: for to doe wrong, to deale vntruly, is not omnipotencie, but a thing of weakneſſe & impotencie So it is with the King, he cannot be a (a)4. E. 4 25.diſſeiſor, he can be no wrongdoer: for he is all Iuſtice, he ſhall neuer be (b)F. N. B. 143 b.eſtopped. Iudgement finall in a Writ (c) 20. E 3. Dr. 15 F. N. B. 31. D.of right, doth not conclude him, for hee is all truth, Ʋeritas & Iuſticia ſaith Bracton, Circa ſolium eius. They are the two ſupporters that doe vphold his Crowne.
Therefore alſo hee hath a prerogatiue in all things that are not iniurious to the ſubiect. As hee may create Corporations, Deane and Chapter, Maior and Cominaltie, &c. make Deniſens: and it remaineth good, thogh he be declared an vſurper after (but no continuance in England can make a Deniſen, though it bee from his childhood, and he ſworne to the King in Leets) he may reſerue rent vntounto a ſtranger, grant a condition or thing in action, giuegive in fee ſimple, vponupon condition not to alien, except out of his grant, things incident as Courts and perquiſits of Courts vponupon the grant of a mannor, ſue in what court he will: as to hauehave a Quare impedit or Writ of Eſcheate, retornable in the Kings Bench, or a Quare incumbrauit there, though the record of the Recouerie be in the common place. He may alledge in his Court or plea, double matter, or as many matters as he will (and the partie muſt anſwere to them all, and then the King ſhall take iſſue vponupon any one at his pleaſure. He may waiue his iſſue, and demurre in Law, and contrariwiſe, ſo it be the ſame terme, but not in another terme, for ſo he might do it infinitely. He may challenge a juror without ſhewing cauſe, or the array, becauſe the Sherife that made it, was coſine to the partie. But no challenge ſhall be of a Iuror againſt him He is not bound to make a demand (or tender) where a leaſe is made, reſeruing a rent with a clauſe of re-entrie: hath the ꝓpertie of all goods that are in nullius bonis, ſhall hauehave the Tithes of Forreſts and places out of any pariſh, take aduantage of other mens places, as to hauehave a Writ to the Biſhop, if title appeare for him, though he be a ſtranger to the Action, all the daughters and heires (where the anceſtor held in chiefe) muſt doe homage to him: where (if they hold of a common perſon) the eldeſt onelyonly muſt do it where he is to hauehave a benefit, a man may plead more pleas than once, pur darreine continuance, as outlawrie in an action of debt, &c. And many prerogatiues more he hath, which in their ſeueral places ſhal come more properly to be conſidered.
But in them all it muſt bee remembred, 12. H. 7 19.That the Kings prerogatiue ſtretcheth not to the doing of any wrong: for it groweth wholly from the reaſon of of the Common Law, & is as it were a finger of that hand, although ſo much differing in faſhion (as the head and the bodie can neuer be of one proportion) that if you ſet them in paralels together, you ſhall find it to be law almoſt in euerie caſe of the King, that is law in no caſe of a ſubiect. And yet for all th…, they are not two but one law. OnelyOnly the Common Law is as the primum mobile which drawes all the Plannets in their contrarie courſe.
In regard of the King, the Queene his wife is participant of diuers prerogatiues aboue other women.
As in an Act of Parliament making all 3. El. 231.guifts and grants vntounto her, or by her (whether betweene the king & her, or betweene her and any other perſon) to be of the ſame effect, as if it were between other ſubiects, without any benefit thereby to come vntounto the king, need not be pleaded, but the court and all the Realme muſt take knowledge of it, becauſe ſhee is a publique perſon, in whom all the ſubiects of the Realme hauehave intereſt, being the Kings wife, as they hauehave in the King himſelfe. Likewiſe ſhee may hauehave in her ſelfe the poſſeſſion of perſonall things during her life, ſo as ſhee may (a)49. aſſ. pl. 8.hauehave an Action in her owne name alone, take lands and other poſſeſſions from the king by Charter: (b)3. H. 7. 14.make leaſes, feofments &c. which ſhall bee good during her life, but afterward the king ſhal hauehave them▪ And diuers other prerogatiues ſhee hath, which follow in their place.
His Subiects are the members of the Common-wealth, and are Barons and Commons.
Barons wee call the Péeres of the Realme. For euerie Duke and Earle is Peere of the Realme, becauſe hee hath a Baronie belonging vntounto him. Otherwiſe Duke and Earle are but names (a)14 H. 4. 7.of dignitie and of honour only, and (b)21. E. 4 84. 8. H. 6. 10.parcell of ones name. So as in euerie Action which he bringeth, or is brought againſt him, he muſt bee named Earle or Duke, as he is, elſe the writ ſhall abate. But the name of Baron is the 32 H 6. 29.name of ones place and calling, which ſhal not be expreſſed in any writ. And where addition is neceſſarie, as by the Statute of 1. H. 5. yet he ſhall neuer be impleaded by the name of baron, for it is not any dignitie, but muſt be named knight if he be one, or Eſquier if hee bee no Knight. And touching Biſhops, who inioy the name of Stamp. prer. 154. 7. H. 8 Cr. 184. Hunnes caſe by all the Iuſtices of England.Lords of the Parliament, they hauehave the ſame in reſpect of antient baronies annexed to their dignitie.
All the reſt are Commons.
The particular perſons are natural perſons, or bodies politique.
The naturall perſon is euerie man.
A bodie politique is a bodie in fiction of 14. H. 8. 3. Fineux.Law, that indureth in perpetuall ſucceſſion And ſuch is the King alone, and by himſelfe conſidered: and a Parſon. The law calleth him the Rector of a Church, for the King hath two capacities, a bodie naturall 4. El. 234.(wherein he may inherite from any of his anceſtors, or purchaſe to him and his heirs, and retaine the ſame, notwithſtanding hee be remooued from his eſtate Royall) and a bodie politique, wherein he may purchaſe to him and his heires Kings of England, or to him and his ſucceſſors. So a Parſon is a 4 E 3 17. Br. Deane, &c. 2. 14. H. …. 30.Corporation by the Common Law, and hath two capacities, one to take to him and his heires, & the other to him and his ſucceſſors. And therin he is ſeiſed … iura Eccleſiae.
And if I. S. be Parſon of D. and land be giuen to I. S. Parſon, and his ſucceſſors, and ibid.to I. S. Clerke, and his heires; he is a tenant in Common with himſelfe.
The parſon in regard of his continuall attendance vponupon that ſacred function, is (a) F. N. B. 175.freed from all perſonall charges that may hinder him in his calling. For ſuch a one ſhall not be choſen Bailife, Bedle, Reeue, or other ſuch Officer; nor bee compelled to come to the (b)Marl cap. 10.Sherifes turne, to the (c)F N. B. 160. c.Leets of the King or other Lords, for land annexed to their Churches. And all this by (d) Marl cap 10. doth ſo recite it.the courſe of the Common Law.
So is euerie other clark within orders.
To the Parſon belongeth of Common F. N B. 175. Br. Diſm …6.right (as our bookes ſay) the tenth of all manner of yearely increaſe, which we call Diſmes, or Tithes. And therfore by a leaſe 15. H. 7. 8.of Rectoria, the Leſſee ſhall hauehave the diſmes and offerings of the ſame Church; for they are incident vntounto it.
And if a Parſon demiſe his glebe to a Lay man, he ſhall pay Tithes, becauſe they are 32. H. 8. Br. …ſ. 17.of common right.
Euerie Parſon before he can be incumbent, muſt be preſented to the Ordinarie, who is to admit him. And therefore is allowed time to inquire of the clerks habilitie. 14 H. 7 21.As if he be preſented to the biſhop when he is readie to ride, who willeth him to come to him within three dayes to be examined: if he come not then, nor within ſix moneths after, the Biſhop may collate by laps: for there be many things to diſhable him frō hauing the benefice. As if he be criminous, inſufficient, a villeine, hauehave not his letters of Order, &c. And if a meere Layman 12. & 13. El. Dier 292.be preſented, admitted, and inſtituted, and no ſentence of depriuation or nullitie giuen, the Ordinary cannot collate by laps: for till that time, the church is full to all intents, when the Ordinarie admitteth him to be able, that is called an admiſſion, when he admitteth him to the charge, as to ſay to the Clerke Inſtituo te habere Curam animarū, that is, inſtitution.
And then the Archdeacon is to put him in poſſeſſion, by deliuering the ring of the church dore vntounto him, and ringing of bells, which is called an induction, and that beeing done, the partie becommeth an incumbent. 20. El. 528.Before which induction there is no poſſeſſion or free-hold in him, of glebe, or houſe, or diſmes. So as a rent granted by a Prebendarie, after admiſſion and inſtitution, and before induction, with confirmation of the Ordinarie before induction, and of Deane & Chapter, the day of induction is void.
The Incumbent hath not the meere right in him of Land in the right of his Church. But the fee ſimple is in abayance, Lit. 143. 6. E. 6. Dy. 69.that is to ſay, onelyonly in the remembrance, intendment, & conſideration of law; Therefore he cannot diſcontinue, and euerie Act which he doth with ſuch land, may be auoided, when he ceaſeth to be incumbent, except ſuch as are done by conſent of patron Lit. 143. 12. H. 8. 7.and ordinarie, which bind for euer.
If the Church bee voide ſixe moneths, 3. E. 4. 3.without preſenting, which is called a laps, the Ordinarie himſelf may collate, that is, a Clark appoint of his own: & if tt be voyd Doct. & Stud. per Br plen. 15.ſixe moneths after his time, then the Metropolitane, and ſixe moneths after his time, the King may preſent. All this is to be vnderſtood, If the Patron preſent not before them. But ſo long as the Church is void, though it be two yeares after, the patron Doct. & S… ibid.may preſent, & the Ordinarie or Metropolitane are bound to admit him. Quere whether it be ſo where the King is intituled to preſent by laps.
When one Church is not able to finde 40. E. 3. 28. Fi…. 50. E 3. 27. B…lnap.the Cure, the ordinary by conſent of the Patrons may vnite it, or make a conſolidation of it to ſome other. And it ſeemeth that in this caſe, the conſent of the King is not requiſit, becauſe here is no preiudice wrought to any, for if one man be patron of both Churches, hee ſhall hauehave the ſole preſentment: if there be ſeuerall Patrons, then they ſhall preſent by turne, and the King ſhall hauehave the laps, as before hee ſhould. Otherwiſe it is vponupon an appropriatian, for that is an amortiſement, and therfore all muſt ioyne in the making of it.
Statutes.
37. H. 8. Cap. 19. By aſſent of ordinary, incumbent, and Patron, vnderunder their ſeales, an vnion may bee made of two Churches, being not aboue ſix pound yearly value in the Kings bookes, nor diſtant one from another aboue a mile; ſauing to the King his tenths, and firſt fruits.
In corporate Townes it muſt bee by aſſent of the Corporation.
If ſuch a poore Pariſh ſhall within a yeare aſſure by writing to the incumbent and his ſucceſſors, eight pound yearely, the vnion ſhall be void.
Ouer and beſides thoſe Corporations that were at the Common law, there bee diuers others which hauehave growne of later time, by a ſpeciall foundation and election, whereof ſome are aggregate of many perſons, 14. H. 8. 3. Fineuxthat is to ſay, of a head and body: other conſiſt in one ſingular perſon.
Theſe Corporations are all of them 14 H. 8. ibid.Temporall or Spirituall.
The Temporall, made by the King, as Maior and Comminaltie; and many moe which he maketh or may make eueryevery day. Alſo (a)9. Eliz. Dy. 255. Littlet. 36. 40. Aſſ pl. 27. & 41.Colledges, as maſter & fellows, &c. diuers Townes are ſo incorporate before time of memory, with power to hold plea, by Writ of ex graui quaerela, or ſuch like, and are called Boroughs, from whence (a)Littlet. 36.come the Burgeſſes to the Parliament: and this maketh the difference betweene the Borough and a Towne. So that (b)40. Aſſ pl. 41.vpland Townes which are not ruled and gouerned as a Borough is, are but Townes, though they be incloſed in walls, as Ludlow, & ſuch like. And eueryevery (c)Littlet. 38Borough is a Towne, but not e conuerſo. (d)40. Aſſ pl. 27.The names of all the townes in England, and which are ſo incorporate, and which not, are of record in the Exchequer.
The ſpirituall ones were for the moſt part made by the Pope, but had their power to purchaſe from the King. And theſe 4 H. 4. Cap. 2. 4 H. 4. Cap. 12. Coo.likewiſe are of two ſorts, for either they are Regular or Secular.
Regular, which hauehave entred into Religion, (and thereupon called religious) profeſſing to vow three things, Obedience, voluntary Pouerty, and perpetuall Chaſtity. Wherefore theſe are dead perſons Littlet. 66.in the accompt of Law. OnelyOnly their head hath power to purchaſe or doe ſuch other things to the vſe of the houſe. And of this ſort are Abbot and Couent, Prior and Couent, &c.
Secular, are ſuch as hauehave entred into Religion; as the Biſhop and his Chapter, Moſter of an Hoſpitall, and his Brethren, or confreres, gardian of a chappell, & the chapl…ns, &c. Alſo Archdeacons, & ſuch like. Touching the Biſhop & his chapter (which make but one bodie) their poſſeſſiōs 40. E. 3. 23. Coo. 75.are diuided: ſo as the Biſhop hath part by himſelfe, & the Chapter the reſidue. Which chapter conſiſteth of a Deane, as the chiefe, 17. E. 3. 40. Par….& prebendaries, or ſuch like, who are moſt properly termed the chapter: & of theſe alſo, their poſſeſſions for the moſt part are diuided: the Dean hauing ſome part ſole in the 21. E 4.right of his deanrie: & the particular Prebendaries ſome other part in the right of their Prebends: the reſidue the Deane & 17. aſſ pl 29. 18. E 3. 36. F. N. B. 195.Chapter hauehave together. And euerie of them is to ſuch purpoſe incorporat by himſelfe.
And theſe ſpirituall corporations are 26. Aſſ.ſomtimes preſentatiue, ſometimes datiue, (perpetuall or remoueable) ſometimes electiue, & hauehave a common ſeale, according as their corporatiō is. To them alſo perſonages may be appropriate, by the patron, Ordinary, & king, & vicars, indowed to ſerue the cure. Wherupon a praecipe qd reddat lieth againſt the vicar only, without naming of the perſon, for hee alone is Tenant of the freehold, and may hauehave a iuris vtrum, (or other action) againſt the perſon. All which is to be vnderſtood of an ancient indowment, but not for lands whereof hee is indowed by the Ordinarie.
Statutes.
Magna Charta cap. 36. A gift of lands to a Religious houſe, to take it backe to hold of them, is meerely voide, & the Land forfeit to the Lord.
Stat. de Religioſis, cap. 1. Land giuen in mortmaine, vnderunder colour of a terme, forfeit to the Lord, the immediate Lord hath one yeare to enter, the next Lord halfe a yeare, and ſo from Lord to Lord, till it come to the King.
Weſtm̄ 2. cap. 41. The King (founder of a Religious houſe) may ſeiſe lands which he gaue them, if they alien.
See all the ſtatutes of the diſſolution of Monaſteries, Chaunteries, &c.