A Philological Commentary, Philological commentary · Part P – Part Q

A Philological Commentary · Philological commentary · Part P – Part Q

p. 176P.

PAINE FORT ET DURE.

PAine f…t & dure is a speciall punishment for such as being arraigned for selony, refuse to put themselves upon the common tryall of God and the Countrey, and thereby are m…e. Such a one shall be sent back to the prison whence he came, and be laid in some lowStamford pl. Cor. l. 2. c. 1. dark house where he shall lie naked upon the earth, without any litter or other clothing, and without any rayment, save only to cover his p…ivy Members, and he shall lie upon his back, with his head covered and his feet. And one arm shall be drawn to one quarter of the house with a co…d, and the other arm to another quarter, and …ro… or stone shall be laid on his body so much as he can bear; and the next day following he shall have three morsels of barley Bread Without drink and puddle water next unto the prison door, which pain may be called fort, in that it is so ponderous and grievous that he cannot bear or sustain it; and dure because he shall notId. Ib. have release of it during his life, but shall die in it.

PANNELL.

Pannell, is an English word, and signifieth a little part, for a pane is a part, and a pannell a little part (as a pannell of wainscot, a pannell of a saddle, and a pannell of parchment, whereinCook on Lit. l. 2. c. 2. sect. 234. the Jurors Names be written, and annexed to the Writ; And a Jury is said to be impannelled) p. 177when the Sheriff hath entred their Names into the pannell, or little piece of pa…chment in pannell… Assisae.

PARAVAILE.

Paravaile. He is called Tenant paravaile, becauseCook 9th Rep. Cony's case. the Law presumeth that he hath benefit and availe over the services which he payeth to the Lord.

PARCENERS.

Parceners. If a partition be made between two Coparceners of one and the self same land,Cook on Lit. l. 1. c. 1. sect. 1. that the one shall have the land from Easter untill Lammas, and to her heirs; or the one shall have it the first year, and the other the second year alternis vicibus, there it …s one self same land wherein two persons have severall Inheritances at severall times. So it is if two Coparceners have two severall Mannors by descent, and they make partition, that the one shall have one Mannor for a year, and the other the other Mannor for the same year, and after that year, then she that had the one Mannor shall have the other, & sic alternis vicibus for ever.

If an Earl that hath his dignity to him, and his heirs dieth, having issue one daughter, the dignity shall descend to the daughter, for thereCook on Lit, l. 3. c. 1. sect. 241. is no incertainty, but only one daughter, the dignity shall descend unto her and her posterity, as well as any other Inheritance: but where there be more daughters then one, the eldest shall not have the dignity and power of the Earl, that is to be a Countess, but the King who is the Sovereign of Honour and Dignity, may for the incertainty conferre the dignity upon which of the daughters he pleaseth. But p. 178there is a difference between a dignity or name of nobility, and an Office of Honour. For if a man hold a Mannor of the King to be high Constable of England, and die having issue twoId. ib. daughters, the eldest daughter taketh Husband, he shall execute the Office solely, and before marriage it shall be executed by some sufficient Deputy. But the dignity of the Crown of England is without all question descendible to the eldest daughter alone and her posterity, and so it hath been declared by Act of Parliament: for Regnum non est divisibile.

They are called Parceners, because by the Writ which is called De partitione facienda, the Law will compell them to make partition of the Land. There is an Action in the Civil Law very like to this, called Actio familiae here scundae.

PATRON.

Patron. Pollard 12. H 8. doth well distinguish the interest of the Parson, Patron and Ordinary, the Parson (saith he) hath a spiritual possession in the Church, the Ordinary hath charge of the Church to see the cure served, the Patron jus praesentandi to the Church.

PARSON.

Parson. Persona in the legall signification is taken for the Rector of a Church parochial, and is called Persona Ecclesiae, because he assumethCook on Lit. l. 3. c. 9. sect. 528. and taketh upon him the Parson of the Church, and is said to be feised in jure Ecclesiae, and the Law had an excellent end herein, viz. that in his person the Church might sue for and defend her right; and also be sued by any that had an elder and better right: and when the Church is full, it is said to be plena & consulta of such a one p. 179Parson thereof, that is, full and provided of a Parson that may vicem seu personam ejus gerere, Id. ib.persona impersonata: Parson Impersonee is the Rector that is in possession of the Church parochiall, be it presentative or impropriate, that may vicem seu personam ejus gerere. If a Parson of a Church waste the Inheritance of his Church to his private use in cutting down the Trees, theCook 9th R…p. Lifords case. Patron may have a Prohibition against him, for he is seised in right of his Church, and his glebe is the dower of his Church.

PARLIAMENT.

Parliament, is the highest, and most honourable,Si vetustatem spectes est antiquissima, si dignitatem est honoratissima, si jurisdictionem est capacissima. Cook on Lit. l. 2. c. 10. sect. 164. and absolute Court of Justice of England, consisting hereto…ore of the King, the Lords of Parliament and the Commons. And again, the Lords, viz. Spiritual and Temporall. And Commons are divided into three parts, viz. into Knights of Shires or Counties, Citizens out of Cities, and Burgesses out of Buroughs. All which have voices and suffrages in Parliament. Of the Members of the Court, some were by descent, as antient Noblemen; some by creation, as Nobles newly created; some by succession, as Bishops; some by election, as Knights, Citizens and Burgesses.

In the Lords House, the Lords give their voices from the paisne Lord seriatum by the word of (Content) or (not Content.) The Commons give their voices upon the question, by Yea or No, and if it be doubtfull, and neither party yeeld, two are appointed to number them, one for the Yea, another for the No: the Yea going out, and the No sitting: and thereof report is made to the House. Cook's 4 part of Instit. c. 1.

It is called Parliament, because every Member of the Court should sincerely and discreetly parler p. 180la ment for the generall good of the Commonwealth.Id. ib. & Preface to the 9th Rep. This Court the French calleth …es estats, or l… assemblee des estats: in Germany it is called a Diet. It is legally called in Writs and judiciall proceedings, C…m…une con…ilium Regni Angliae.

The jurisdiction of this Court is so transcendent, that it maketh, inlargeth, diminisheth, abrogateth, repealeth, and reviveth Laws, Statutes, Acts and Ordinances concerning matters Ecclesiasticall, capitall, criminall, common, civill, martial, maritime, and the rest.

The efficient causes of an Act of Parliament were the assent of the Estates, viz. 1. Of theIudge Doderidge. An Ordinance in Parliament differs from an Act that is ordained by one or two of them. Cook's Instit. 4th part c. 1. Cook l. 8. of Rex. case, de Prin. 20 b. 11. H. 7 27 7. H. 4 King. 2. Of the Lords Spirituall and Temporall. And, 3. Of the Commons: and each without the other cannot perfect this work; and yet untill the royal assent, it was but embrio in ventre matris, and by the royal assent coming last it took life and vigour. The Assembly of the three Estates, viz. the King, Nobility and Commons, which make the body of the Realm, was called a Parliament. For without all three (as if it be done by the King and Lords, but nothing spoken of the Commons) it was no Act of Parliament. And although the Lords and Commons agree to it, yet it was not an Act untill the King had assented also, and his assent alwaies comes after their assent, and commonly this is the last day of Parliament▪ from this day forward it was an Act, and not before, for before the Kings assent, it was an issue in the Mothers womb, which is not perfect untill it be born, for the Statute was not full and perfect untill his assent given to it. But it shall be countedPloyden Partridge against Strat. s…l. 79. …. an Act from the first day of the Parliament, unless the certain time be specified when the Act shall first take effect. But if the Parliament have divers prorogations, and in the second o… p. 181third Session an Act is made, this shall not have relation to the day of the beginning of the Parliament, viz. to the first day of the first Session, but only to the first day of the same Session, in which it is made.

Of Acts of Parliament some are introductory of a new Law, and some are declaratory of the antient Law, and some are of both kinds by addition of greater penalties or the like. Cook's 4th part of Instit c. 1.

One of the principall ends of ca…ling of Parliaments is for the redress of the …mischiefs and grievances that daily happen. Cook's 4th part of Instit. c. 1.

PARQUE.

Parque, is a French word, and signifieth that which we vulgarly call a Parke, of the French verb, parquer to inclose, it is called in Domesday Parcal, in Law it signifieth a great quantity of ground inclosed, priviledged forCook on L…t. l. 3. c. 5. sect. 378. 9 timo Iacobi. wild Beasts of chase by prescription, or by the Kings Grant; The forfeiture for hunting or killing of Deer in a Park, is 10 ll. or else treble dammages.

PEACE.

Peace, The Law of our Land useth the word Peace diversly: Sometimes it is taken for protectionLamberts Iustice of Peace. or defence, so Bracton calleth the Writs of protection Brevia de pace. Sometimes it is taken for Rrights, Priviledges, and Liberties, as in the Oath of the King at his Coronation: He sweareth servare ecclesiae Dei, cleri & populi pacem ex integro, that he will maintain each degree, and estate of his Subjects, as well Ecclesiasticall as Temporall. according to their severall Customes, Laws and Priviledges, sometimes for an abstinence from p. 182injurious force and violence, so it is commonlyLamberts Iustice of peace. Pulton. taken, menacing beginneth the breach of the Peace, assaulting increaseth it, and battery accomplisheth it.

PERIURY.

Perjury, if a man swear to one that he will pay to him twenty pound which he oweth him at a certain day, and at the day faileth of the paiment, he may not be sued in the spirituall Court for the perjury, because an Action of debt lieth at the Common Law for for the principall. But 34 H. 6. it is said, that if a man buy an Horse for five pound, solvendum, such a day, and sweareth to make payment at the day, but when the day is come, faileth of payment, an Action of debt lyeth at the Common Law, and another at the Spirituall Law, pro laesione fidei.

If a man calleth another perjured man, he may have his Action upon his Case, because it must be intended contrary to his oath in a judiciall proceeding: but for calling him a forsworn man, no Action doth lie, because the forswearing may be extra judiciall. Cook's 3 part of his Instit. c. 74.

PILLORY.

Pillory, cometh of the French pilorie, which proceeds from foreign janua, and foreign video, becauseCollistrigium Cowell. one standing on the Pillory, putteth his head through a kind of door.

PIPOWDERS.Curia pedis pulverizati. Iudge Doderidge, Cowels Instit.

Pipowders, is a Court belonging to Markets and Fairs, to yeeld Justice to the buyers and sellers coming thither, which because they are most frequented in Summer, the word was given of the dusty feet of the comers, from two French p. 183words, pies pouldrez, id est, pedes pulvere inquinatos.

PLEAS.

Pleas. All pursuits and actions (we call them in our English tongue Pleas) and in barbarous, (but now usuall Latin) placita, taking the name abusive, of the definitive sentence, which may well be called placitum, or▪ foreign. TheSmiths Commonw. of England c. 9. French call it arest, in which word after their custom, they do not found the…. But we call placitum the action, not the sentence: and placitare barbarously for to plead in English agere, or litigare.

Pleas are divided into Pleas of the Crown, and into Common or Civil Pleas. Pleas of the Crown are Treason and Felony, and misprison of Treason and Felony; They are Communia placita, not in respect of the persons, but in respect of the quality of the Pleas. Cook's 4th part of Instit. c. 10.

All those Pleas which touch the life or mutilationId. c. 4. of man, are called Pleas of the Crown, and cannot be done in the name of any inferiour person, then He or She that holdeth the Crown of England. And likewise no man could give pardon thereof, but the Prince only.

POSSESSION.

Possession. Possessio est quasi pedis positio.

In aequali jure melior est conditio possidentis, He that hath possession of Land, though it be by disseism, hath right against all men, but againstDr. & Stud. c. 9. him that hath right.

Possession is either 1. Actuall (possessio in facto) when a man entreth in deed into Lands or Tenements to him descended: 2. Or possession in Law possessio Civilis, when Lands or Tenements p. 184are descended to a man, and he hath not as yet actually, and indeed entred into them.Cook on Lit▪

Possession must have three qualities, it must be 1. Long, 2. Continual, and 3. Peaceable.

POUND.

Pound, is either overt and open, so called becauseEither a Pinfold made for such purposes in his own Close, or anothers with his consent. the owner may give his Cattell meat and drink without trespass to any other, and there the Cattell must be sustained at the perill of the owner, or covert and close, as if one impound the Cattell in some part of his house, and then the Cattell are to be sustained with meat and drink at the perill of him that distreineth, and he shall not have any satisfaction therefore.

If a man distrain Cattell for dammage Feasant, and put them in the pound, and the owner that had common there make fresh suit, and find the door unlocked, he may justifie the taking awayCook on Lit. l. 1. c. 7. sect. 58. of his Chattell in the Writ of à Parco sracto. If the owner break the Pound, and take away his goods the party distreining may have his Action de par…o fracto, and he may also take his goods that were distreined wheresoever he find them, and impound them again.

PRAEMUNIRE.

Praemunire, is to be adjudged out of the KingsCook on Lit. & Preface to the 7th Rep. protection, to lose all their Lands and Goods, and to suffer perpetuall imprisonment.

Some hold an opinion, that the Writ is so called a praemunire, because it doth fortifie jurisdictionem jurium regionum Coronae suae, the Kingly Laws of the Crown against forreign jurisdiction, and against the usurpers upon them, as by divers Acts of Parliamentt appear. But in truth it is so called of a word in the Writ, for the p. 185words of the Writ are, praemunire facias prefatum Cook on Lit. l. 2 c. 11. sect. 199.A. B. quòd tum sit coram nobis, where praemunire is used for praemonerè, and so do divers Interpreters of the Civil and Canon Law use it, for they are raemuniti that are praemoniti, so odious was this Offence of praemunire, that a man that was attainted of the same, might have been sla…n by any man without danger of Law, because 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 Queen Elizabeth, and her Parliament5 of Eliz. c. 1. liking not the extream 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, upon any praemunire.

If a man kill one which is attainted by a praemunire, this is not felony, for he is out of the KingsBrooks abridg. fol. 181. B. protection, but it is contrary if one kill another, that is attainted of felony, and judged to die, but now by the Statute of Eliz. it is felony to kill one attainted by a praemunire.

Prebenda a praebendo auxilium, & consilium Episcopo.Cook.

PREROGATIVE.

Prerogative, Littleton speaketh of the KingsCook on Lit. l. 2. c. 5. sect. 125. prerogative but twice in all his Books, viz. sect. 126. and 178. and in both▪ places as part of the Laws of England, prerogativa is derived of prae, id est, ante & rogare, that is, to a…k or demandPrerogativa is a priviledge or preheminence that any person hath before an other, which as it is tolerable in same, so it is most to be permitted and allowed in a Prince. Stamford. Camdens Brit. before hand, whereof cometh prerogativa, and is denominated of the most excellent part, because though an Act hath passed both the p. 186Houses of the Lords and Commons in Parliament, yet before it be a Law, the Royall assent must be asked, or demanded, and obtained, and this is the proper sence of the wold. But legally it extends to all powers, preheminences, and priviledges, which the Law giveth to the Crown, Bracton l. 1. in one place calleth it libertatem, in another privilegium Regis. The King hath many rights of Majesty peculiar to himself (the learned Lawyers term them sacra sacrorum, that is, sacred, and individua, inseparable, because they cannot be severed, and the common sort r…yall Prerogatives, which they term the flowers of his Crown, in which respect they affirm, that the regall materiall Cown is adorned with flowers.

His person shall be subject to no mans suit, his possessions cannot be taken from him by any violence,Stamfods prerogative. or wrongfull disseism, his goods and chattels are under no tribute, toll, nor Custom, nor otherwise distreinable.

The peoples liberty strengthens the Kings Prerogative, and the Kings Prerogative is to defend the peoples liberties, King Charles his speech, in the 3d of his Reign.

The King may licence things forbidden by Statutes; As to coyn money which is made felony by the Statute, and was before lawfull, for that is but malum prohibitum, but malum in se, as to leavy a nusance in the High-way, he cannot licence to do, but when it is done he may pardon it. All white Swannes not marked, which haveCooks 7th Rep. gained their naturall Liberty, and are swimming in an open and common River, may be seased to the use of the King by his Prerogative, the Swanne is a royall Bird, and so the Whale, and Sturgeon are royall Fishes, and belong to the King by his Prerogative. All those things, the property of p. 187which is not known, belong to the King by his Prerogative.

A grant to the King, or by the King to another,Cook on Littleton. is good without attonement by his prerogative.

PRESCRIPTION.

Prescription, is three-sold, viz.

1. Personall, as the Inhabitants of a Town may prescribe for a way, &c.

2. Reall, as incident to an estate, as for a man to prescribe that he and they whose estate he hath had common, &c.

3. Locall, as where a man doth prescribe that within such a Mannor, &c.

Prescription, is a title taking his substance of use,Prescriptio est titulus ex usu & tempore substantiam capiens. Cook on Lit. l. 2. c. 10. and time allowed by the Law, as I. S. seised of the Mannor of D. in see, prescribeth thus, that I. S. his Ancestors, and all those whose estate he hath in the said Mannor, have time out of mind of man had, and used to have Common of pasture in such a place, being the Land of some other, as pertaining to the said Mannor. This properly we call a prescription. Cook on Lit. l. 2. c. 10. sect. 170.

Prescription shall hold sometime against the King, in such things as a man may prescribe in,Stamf. of the prerog. c. 8. as one shall prescribe for wayse and straise against the King. The King may also outstay his time, if it be found the Tenant for term of life, hath forfeited his estate to the King, whereby the King ought to cease, if his grace sease not, but tarry till he be dead, so that he in the reversion entreth, he cannot then cease, so that maxim is not universally true, Nullum tempus occurrit Regi.

The Statute de praerogativa Regis, quòd nullum tempus occurrit Regi, is to be understood when p. 188the King hath an Estate or Interest certain and permanent,Cooks 7th Rep. Baske…viles Case. and not when his interest is specially limited; for the time is the substance of his title, and in such case ocurrit Regi.

PRESENTMENT.

Presentment, co…es of the French word presenter to set before one: and in the understanding of the Law is a meer denuncia…ion of the Jurors themselves, or of some other Officer, as Justice, Constables, Surveyors, &c. most commonly de proprio visu without the in…ormation or the prosecution of a third party of any offence inquirable in the Court whereunto it is presented. Lamb. Eirenarch. pa. 467.

PRESUMPTION.

Presumption. There be three sorts of presumptions: 1. Violent, which is many times plena probatio; Cook on Lit. l. 1. c. 1. sect. 1.as if one be run through the body with a sword in an house, whereof he instantly dieth, and a man is seen in the house to come out with a bloody sword, and no other man was at that time in the house. 2. Probable which moveth little▪ 3. Levis seu temeraria, which moveth not at all. So in a case of a Charter of seossment, if all the Witnesses to the Deed be dead, then violent presumption which stands for a proof is continual and quiet possession.

Presumptio stat in dubio: it is doubted of, and yet it is accounted veritatis comes quatenus in contrarium nulla est probatio ut regula se habet, stabitur presumptioni donec probetur in contrarium.

PRISON.

Prison. Every suffering of a Prisoner to escape is aSee Imprisonment. breach of prison. If a man arrest one for felony, and after let him go at large whether he will, if he be arrested for felony, it is Felony; if for Treason, it isStam. l. 1. cap 26. Treason; if for a trespess, it is a trespass, & sic de singulis.

p. 189PRIVITIE.

Privitie, is a word common as well to the English as to the French, and in the understanding of the Common Law is four-sold: 1. Privies in estate as between the Donor and Donee, Lessor and Lessee,Cook on Lit. l. 3. c. 8. sect. 461. & Beverlies case non compos mentis. which privitie is ever immediate. 2. Privies in Blood, as the Heir to the Ancestor, or between Coparceners. 3. Privies in representation, as Executors to the Testator. And 4thly, Privities in tenure, as the Lord and Tenant which may be reduced to two generall Heads, Privies in Deed, and Privies in Law.

PRIVILEDGE.

Priviledge, privilegium is ius singulare, whereby a private man, or a particular Corporation is exempted from the vigour of the Common Law, for that which is now called proprium, hath been called of old Writers privum.

PROCES.

Proces, it is called process, because it proceedeth (or goeth out) upon former matter, either original or judicial.

This word process hath two significations, it is largely taken for all proceeding in all reall and personall actions, and in all criminall and common Pleas, and processus derivatur à procedendo us que ad finem. 2. More safe for the proceeding after the originals is but of the plea before judgment.

The difference between process and the precept or warrant of the Justices. The preceptCooks 8th Rep. Blackmores case. or Warrant is only to attach and convent the party before any Indictment or conviction, and may be made either in the name of the King or of the Justice. Process is alwaies in the name of the King, and usually after an Indictment …ound or other conviction; and because the King p. 190is a party, it must also be with a non omittas propter aliquam libertatem.

PROOF.

Proof. Bracton saith there is probatio duplex, viz. viva, as by Witnesses, viva voce, and mortua; as by Deeds, Writings, Instruments. A Wife cannot be produced either against or for her Husband, quia duae sunt animae in carne una, and it might be a cause of implacable discord between the HusbandCook on Lit. l. 1. c. 1. sect. 1. and the Wife, and a mean of great inconvenience; but in some cases Women are by Law wholly excluded to bear testimony, as to prove a man to be a villein; Mulieres ad probationem status hominis admitti non debent.

PROPERTY.

Property, if Plate be stollen, and sold openly in a Scriveners Shop, on the Market day, as every day is Market day in London, saving Sunday, this sale shall not change the property, but the party shall have restitution: for a Scriveners Shop is not a Market overt for Plate, for none will search there for such a thing, but if the sale had been openly in a Gold-smiths Shop in London, so that every one which passed by the Shop might have seen it, this would have altered the property; But if the sale be in a Gold-smiths Shop, either behind a hanging or cupboard, so that one passing byCooks 5th Rep. case. of Market overt. the Shop cannot see it, this shall not change the property, so if the sale be not in the Shop, but in a Warehouse, or other place of the House, this shall not change the property, for it is not in a Market overt, and none will search there for his Goods.

There can be no property of Birds, Fowls, Wild Beasts, in any person, unless they beDr. & Stu▪ c. 5. tame, nevertheless, the Hawks, or Herons that build p. 191in the ground of any person, be adjudged to belong to him that oweth the Ground.

Some things there are, the property whereof the Law cannot vest in any, and therefore it leaveth them to the occupant, that is, to him that can seise them as things which are by nature ferae naturae, as Beasts, Birds, or Fishes, being in their own liberty, and such things are no longer any mans, then when they are in his possession or custody, for when they have escaped and recovered their naturall liberty, then they cease to be his. The nature of Bees is wild, and therefore when a swarme ofIustinian l. 1. Inst…t. them lighteth upon thy tree, they are no more thine before they be covered with thy Hive, then Hawks which have made their nests in some of thy trees, or Doves in thy Dove-house, for though the young birds be thine, whereof thou maist bring an Action of trespass, quare vi & armis pullas esperuiorum suorum in bosco nidificantium, or Columbas Columbaris sui caepit. Here he shall not use this word suos in his Writ, for that implyeth a contradiction. The nature of Doves is wild, neither is it materiall that by custom they are wont avolare & revolare, to fly from home, and return home, and in such things which are tame, and by custom are wont to depart, and yet to return, this rule is allowed, that so long they may be said to be thine, as they have animum revertendi.

Felony cannot be committed in taking of Beasts that be savage, and untamed at the time of taking, nor for taking of Doves being at large in the River, for such taking is not contr…ctatio rei alienae, sed quae est nullius in bonis. But when such things are made tame by any labour, and cost, the property of them is changed, and the nature altered, and then if a man take them out of my possession, a man may have an Action. It is felony to take young p. 192Pigeons, or young Hawks out of their Nests before that they can fly, so to take Fishes kept in a Trunk. To take tame Deer is selony, i… the takerStams. l. 1. c. 16. know it to be tame. But the nature of Hennes and Geese is not savage, and therefore if they shall fly away, though they be past thine eye-sight, notwithstanding in what place soever they be, they cease not to be thine, and whosoever detaineth them, is punishable by way of action.

There be three manner of rights of property.

1. Absolute, this property a man cannot have in any thing which is ferae naturae, but only in such things as are domitae naturae.

2. Qualified.

3. Possessory, these properties a man may have in things ferae naturae, and he may attain to them.

1. By industry, either by taking them only, and yet such things are his no longer, then they be in his possession or custedy, or by making them mansueta, id est, manui assueta, or domestica, id est, domui assueta: But in these past, a man hath but a qualified property, so long as they remain tame, and so long felony may be committed by taking them away, but if they attain to their naturall liberty, and have not animum revertendi, then the property of them is lost.

2. Ratione imp…tentiae & loci, as where a man hath young Goshawks, Herons, or the like, which are ferae naturae, and do breed (or ayre) in his ground, he hath a Possessory property in them, so as if one take them when they cannot sly, the owner of the soyl may have an action of trespas, and to take these away is selony. But when a man hath Beasts, or Fowles that be savage, and in their wildness ratione privilegii Scil. by reason of a Parke, or Warrein, (as Deer, Hares, p. 193Conies,) Phesants, or Partridges, he hath no property in them, therefore in an Action quare parcum, Cook 7th Rep. case of Swans.or Warrenam, regit & intravit & tresodamas, lepores, cuniculos, phasianos, perdices, &c. ib idem invenit, cepit, & asportavit, he shall not say suos, for that he hath no property in them, but they belong unto him, ratione privilegii, (for his gain and pleasure, so long as they remain in the place priviledged. And if the owner of the Park die, his Heir shall have them, and not his Executor, or Administrators, for that without them the Parke (which is an Inheritance) is not compleat, neither can Felony be committed by taking them.

If a man find an Hawk that was lost, and he do not sorthwith bring it to the Sheriff to be proclaimed, but do steal and carry it away, this is felony.

If a man make Cony-burrows in his own land, which increase to so great number, that they destroy the Land of his neighbour next adjoyning, his neighbour cannot have an Action upon the Case against him, which makes the said Cony-borrows, for now as the Conies come upon his Neighbours Land, he may kill them, for they are ferae naturae, and he which makes the Conyburrows hath no property in them, and he shall not be punished for the dammages which the Conies made, in which he hath no property, and which another may lawfully kill, and it was resolved in this case that none may erect a Dovecoat,Cooks 9th R…p. P…ul. stons case. but the Lord of the Mannor, and if any do, that he may be punished in the Leet, but no Action of the Case lyeth by any particular man, for the infiniteness of the Actions which may be brought.

p. 194PROTECTION.

Protection, there be three things 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 KingCook on Lit. l. 2. c. 11. sect. 199. judgeth by his Judges, and they are Lex loquens. The process and the execution which is the life of the Law, consisteth in the Kings Writs, so that he that is out of the protection of the King, cannot be aided or protected by the Kings Law, or the Kings Writs, Rex tuetur legem & lex tuetur jus.

PROVISO.Cook on Lit. l. 2. c. 12. sect. 220.

Proviso, this word hath divers operations sometimes it worketh a qualification or limitation, sometime a condition, and sometime a covenant.

PUBLIKE.

Publike, necessity priviledgeth only quoad jura privata, for in all cases if the act that should deliver a man out of necessity to be against the Common-wealth, necessity excuseth not for privilegium non valet contra rempublicam, as another saith, necessitas publica major est quam privata. If in danger of tempest those that are in the Ship throw over other mens goods, they are not answerable: but if a man be commanded to bring Ordinance or amunition to relieve any of the Kings Towns that are distressed, then he cannot for any danger of tempest justifie the throwing of them overboard. If Husband, and Wife joyn in committing treason, the necessity of obedience doth not excuse the assence as it doth in selony, because it is against the Commonwealth.

p. 195PURCHASE.

Purchase, is when one cometh to Lands by con veyance, or title.

An Infant, or minor, (that is any that is under the age of twenty one years) hath without consent of any other capacity to purchase, for it is intended for his benefit, and at his full age heCook on Lit. l. 1. c. 1. sect. 1. may agree thereunto, and perfect it, or waive and disagree to the purchase, and so may his Heirs after him, if he agreed not thereunto at his full age. A man of non sane memory may without the consent of any other purchase Lands, but he himself cannot waive it, but if he dy in his madness, or after his memory recovered without agreement thereunto, his heir may waive and disagree to the state, without any cause shewed. An Hermophradite may purchase according to the Sex which prevaileth.

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 Emelin, for utile per in utile non vitiatur. But theId. ib. Queen the consort of the King of England is an exempt person from the King by the common Law, and is of ability and capacity to purchase, and grant without the King, Purchases are good in many cases by a known name, or by a certain description of the person, without either sirname, or name of Baptism, as Uxori I. S. or primo genito filio, or filio natu minimo, I. S. or omnibus filiis, & fil… us. A Bastard having gotten a name by reputation may purchase by his reputed or known name, to him and his Heirs, although he can have no beir. Persons desormed having humane shape, Ideots, mad men, Leapers, Bastards, deaf, dumb, and blind minors, and all other reasonable Cratures, have power to p. 196purchase, and retain Lands or Tenements. A monster born within lawfull matrimony, that hath not humane shape, cannot purchase, much less retain any thing. The same Law is, de professis & mortuis seculo, for they are civiliter mortui. If the Tenant holdeth by …ealty, and a bushell of Wheat, or a pound of Comyn, or of Pepper or such like, and the Lord purchaseth a parcell of the Land, there shall be an apportionment, asCo…k on Lit. l. 2. c. 12. sect. 222. well as if the rent were in money: and yet if the rent were in one grain of Wheat, or one seed of Comyn, or one Pepper-corn, by the purchase of past, the whole should be extinct, because when that thing which is extracted out of the Land comes to the Land again, it shall be naturally extinguished, for that is revolutio ad materiam primam.

But if an intire service be pro b…no publico, as Knights service, Cas…le gard, cornage pro defensione Cooks Rep. Bruertons & Calbots case.Regni, for the defence of the Realm, or to repair a Bridge or a way, to keep a Beacon, or to keep the Kings Records, or for advancement of Justice and peace, as to aid the Sheriff, or to be Constable of England, though the Lord purchase part, the service remaines, so it is if the Tenure be pro opere dev…tionis sive pietatis, as to find a Preacher, or to provide the Ornaments of such a Church, or pro opere charitatis, as to marry a poor Virgin, or to bind a Boy Apprentice, or to feed a poor man.

p. 197Q.

QUARRELS.

QUarrels, ▪Querela à querendo. This properlyCook on Lit. l. 3. c. 8. sect. 511. Litis nomen actionem significat sive in rem sive in personam. concerneth personall actions, or mixt at the highest, for the Plaintiff in them is called Querens, and in most of the Writs it is said Queritur. And yet if a man release all quarrels (a mans deed being taken most strongly against himself) it is as beneficiall as all actions, for by it all Actions reall and personall are released.