A Philological Commentary, Philological commentary · Part C

A Philological Commentary · Philological commentary · Part C

p. 35C.

CAPITE.

CApite, is a Tenure that holdeth immediately of the King, as of his Crown or Person, that is, as he is King. A man may hold of the King, and yet not in Capite, by means of some honour,Cook on L…. l. 2. c. 9. sect. 159. Castle or Mannor belonging to the Crown, whereof he holdeth his Land.

Tenure in chief is so called, per excellentiam, because as the head is the principall part of the body, so this is the highest and most honourable service in the Law, because it is done to the chief Head of the Realm, and takes its original creation by the King himself.

The Tenures in chief began in antient time, upon the grants of Kings to defend their persons, and their Crown and Regality, against Enemies andL. Dyer …, 44. A. Rebels.

p. 36The King at this day may make a Tenure of him in chief; if he reserve this to his person, and as a Tenure in gross; but if he reserve the Tenure as ofL. Dyer p. 144. B. his Mannour, or Honour, or Castle, and not about the person of the King, then it is not …e…re … Capite.

CASTLE.

Castle, no subiect can build a Castle or House o… strength imbattelled, or other fo…tress d…e…ible▪ without the l…cense of the King, for the dange… which might ensue, if every man at his plea…u…eCook on Lit. p. 5. might do it.

CHALLENGE.

Challenge, is a word common as well to the English as to the French, and sometimes signifieth to claim, sometimes in respect of revenge, to challenge into the field: sometimes in respect of partiality or insufficiency to challenge in a Court personsCook on Lit. l. 2. c. 12. sect. 234. returned on a Jury. Challenge made to the Jurors, is either made to the Array or to the Poll▪ Challenge to the Array, is where exception is taken to the whole number, as impa…nelled partially; challenge to or by the Poll, is where exception is taken to one or more, as not indifferent.

By the Common Law, the prisoner upon an Indictment or appeal might challenge peremptorilyIn savorem vitae. thirty … ▪ which was under the number of three Juries: … now by the Statute of 22 H. 8. the number is reduced to twenty in petty Treason, Murder and Felony. But by the Statute of 1 and 2 Ph… and M…ry, the Common Law is revived; for a…reason, the prisoner shall have his challenge to the number of 35. But if he be a Lord of Parliament, and a Peer of the Realm, and is to be …ied by his Peers; he shall not challenge any of his p. 37Peers at all, for they are not sworn as other Jurors be, but find the party guilty, or not guilty; upon their Faith and Allegiance to the King, and th…e Judges of the fact, and every of them …atly give his judgment beginning at the low…t. But a sub…ect under the degree of Nobili…y,Magna Charta saith per judicium Parium suorum. may in case of Treason or Felony challenge … as many he can, if he can allege ca… or malice.

Principall challenges to the Poll may be reduced to four Heads.

1. Propter honoris respectum, as any Peer of the …alm o… Lord of Parliament, for these in respect of honour and nobility, are not to be sworn on Juries; and if neither party will challengeCook ub… supra▪ him, he may challenge himself, for by Magna Charta it is provided, quod nec super cum ibi…s, nec super cum mittemus, nisi per legale judi…um pa…ium suorum, aut per legem terrae. A Peer of the Realm shall not be impannelled, where any of the Commons is to have a tryal.

2. Propter defectum, for want or default,

1. Patriae, as alieus born.

2. Libertatis, as Villains or Bondmen.

3. A…nui census, i. e. liberi tenementi; as if any of the Jury impannelled cannot dispend 40 s. by the year of his own Freehold.

4▪ Hundredorum, vicini vicinorum facta praesumuntur s…ire.

3. Propter affectum, for affection or partiality, as if the Juror be consanguineus of blood or kindred to either party, this is a principall challenge; for the Law presumeth, that one kinsman doth favour another before a stranger. If either party labour the Iuror, and give him any thing to give his p. 38verdict, this is a principall challenge; but if either party labour the Jury to appear, and to do his conscience; this is no challenge at all, but lawfull for him to do it.

4. Propter delictum, for crime, it being a maxime in the Law Repellitur a sacramento infamis.

CHAMPERTY.

Champerty, Campi par. It is a bargain with theCook 2 part of Instit. c. 3. Demandant or Tenant, Plaintiff or defendant, to have part of the thing in suit, i… he prevaile therein for maintenance of …im in that suit. Every Champerty is maintenance, but every maintenance not Champerty, for Champerty is but a species of maintenance, which is the genus.

CHAMPERTERS.

Champerters vel cambi participes, sunt qui per Cook on Lit. lib. 3. c. 8. sect. 500. Lamberts Iust. of P. It cometh of two French words, that is, …apsus & mes…er, id est, miscere.se, vel per alios placita movem, vel movere faciunt, & ea suis sumptibus prose …uuntur, ad cam…i partem, vel pro parte lucri habenda, stat. anno 33. Ed. 1.

CHANCE-MEDLEY.

Chance-medly, or homicide per in…o…tunium, is when one is slain casually, and by misadventure. without the will of him that doth the act, of this no Appeal doth lie.

It is fitly so called, for in it men are medled (or committed) together by meer chance, and upon some unlooked for occasion, without any formerCowells Interpr. Stamford Pr…erog. c. 16 But so shall n…t h… that killeth one that would r…b him in his house, or the Officer which killed one that will not be arrested. malice.

It is corrupted from Chaudmelle, which signieth hot or …suddain debate, rixa in the Civil Law, whence in Scotland Chaudmelle is opposed against …orethought felony, as manslaughter with us against murder, Seldens notes upon Hengham.

p. 39If a man casteth a stone, or shooteth an arrow and another that passeth that way is killed▪ this manner of killing is manslaughter, by misadventure or chance-medly, for which he which killeth shall have his pardon of course, as appeareth by the Statute of 6. Ed. 1. c. 9. and he shall forfeit his goods in such manner, as he that shall kill a man in his own defence: for the life of a man is a thing precious, and favoured in the Law, so that a man which kills another in his own defence, or per infortuntum, without any intent, this is not felony, and yet in such cases he shall forfeit his good▪ and c…a…tels, for the great regard that the Law hath to the li…e of a man. Cook 5 Rep. Cases of execution.

But if he that committeth this manslaughter, was doing an unlawfull act, as casting stones in an highway where men usually pass, or shoo…ing Arrows in a Market-p…ace, or such like, whereby a man is killed, it is fel…ny at least.

CHANGE.

Change, If two Parsons of several Churches change their Benefices, and resign them into thePerkins tit. eschanges. p. 58. hands of the Ordinary to that intent, and the Patrons make Presentations accordingly, and one of them is admitted, instituted and inducted accordingly, and the other is admitted and instituted, but dieth before Induction, the other Parson shall not retain the Benefice in which he was inducted, for the change is not perfected, being not executed.

CHARGE.

Charge, is where a man granteth a Rent issuingTerms of Law. out of his ground, and if the Rent be behinde, it shall be lawfull for him, his Heirs and Assigns to distrain, till the Rent be paid, this is called a p. 40Rent-charge. It is called a Rent-charge, because the land for payment thereof is charged with a distress. Cook on Lit.

CHARTER.

Charter, or Deed, is so called from the Latin Charta, quâ scribi solebant. It is called Magna Charta, not for the length or larger e…s of it, (…or it is but short in respect of the Charters granted…ook on Lit. …. 2. c. 4. sect. 108. and epist. 8 Rep. and Proeme to his 2 part of Instit. of private things to private persons) but it is called the great Charter, in respect of the great weightiness, and weighty greatness of the matter contained in it, in …ew words, being the …ountain of all the fundamental Laws of this Realm, and therefore it may be said of it, that it is Magnum in parvo.

The Nobles and great Officers were to be sworn to the Observation of it.

Magna fuit qu…ndam Magnae reverentia Chartae.

It is the quintessence of the whole bulk of the politicks of our Nation, the Charter of the peoples right, the hedg of their property, the strength of their security.

It hath been confirmed above thirty times, andIudge Doderidge. Cook on Lit. ubi supra. commanded to be put in execution, and was bought with the blood of our Nobility, and English Ancestors in those troublesome times of King Iohn and Henry his son. It is in our Books called Charta libertatum, & communis libertas Angliae or libertates Anglis, Charta de libertatibus, magna Charta.

Charters of Lands are Writings, Deeds, Evidences and Instruments, made from one man to another, upon some estate conveyed or passed between them of Lands, or Tenements, shewing the p. 41Names, Place, and quantity of the Land, the estate,Termes of Law. time and manner of the doing thereof, the parties to the estate delivered and taken, the wi… …es p…ent at the same, with other circumstances.

Charters are called muniments à muniendo, quia Cook on 9 Rep. Anna Bedingfields Case. Cook on Lit. l. 1. c. 1. s. 1. Lord Buckhursts Case. 1 Rep. 1.muniunt, … defendunt haereditatem.

The Purchaser of Land shall have all the Charters, Deeds and Evidences, as incident to the Lands, & ratione terrae, that he may the better defend the Land himself, having no warranty to recover in value, for the Evidence of i… are as it were the smews of the Land, and the Feoffor being not bound to warranty, hath no use of them. Also he shall have all Deeds and Evidences, which are materials for the maintenance of the Title of the Land.

CHATTELS.

Chattels, is a French word, and signifieth goods,Cowells interp. verb. Cattalls. Kitchin fo. 32. verb. Catalla. which by a word of art we call catalla, it signifieth all goods moveable, and unmoveable, except such as be of the nature of freehold, or parcell thereof.

Some hold that ready money is neither goods nor Chattels, nor Hawks and Hounds, because they be …erae naturae, Dr. Cowell (in his interpreter) gives this witty reason, why Money is not to be accounted goods or chartels, because, saith he, money of it self is not a thing of worth, but by the consen… Cook on Lit. lib. 2. c. 11. sect. 177. Bona includes all Chattels, as well real, as personal. Id ib.of men, and so for their easier traffick or permutation …t things necessary for their life.

Goods or Chattels are either,

1. Personal, as Horse, and other Beasts, housholdstuffs, b…ws, weapons, &c. called personall, because for the most part they belong to the person of a man, or because they are to be recovered by personal actions.

p. 422. Reall, because they concern the reality, a… terms for years o… Lands or Tenements, wardships.

The word goods in the Common Law comprehends such things as be either with, or with out life, as a Horse or B…. ….

Bona dividu…tur … … & immobilia, mobilia Cook on Lit. ubi supra.rursum divid…tur … … qu… s… movent, … quae ab aliis moventia, but by the Common Law no estate of Inheritance or Freehold is comprehended under these words, b…a & catalla.

The Civil Law sometimes puts a difference between moventia & mobilia, understanding by moventia Dr. Cowels interp. Kitchin.such goods a… actively and by their own accord do move themselves, is horses, oxen, sheep, and cattell, and by mobilia such goods as pas…ively are moveable, or removeable from one place to another, as apparrel, pots and pans, yet regularly and for the most part, by moveables are indifferently understood goods both actively, and pas…ively moveable. Immoveables are those goods which otherwise be termed chattels reall; for that they do not immediately belong to the person, but to some other thing by way of dependancy, as Trees growing on the ground, or fruit growing on the Trees, or a Lease or Rent for term of years, but not Lands, Tenements, or frank-tenement.

CHEVAGE.

Chevage, is a sum of money paid by villains to their Lords in acknowledgment of their bondage for their several heads, whence it is called Chevagium. Chevage of the French word Chief, as if it were the service of the head, of which Bracton …aith, Chivagium dicitur recognitio in signum subjectionis & Domini de Capite suo, Lambert writeth p. 43it chivage, but it is more properly written chief-age.

CLERGY.

Clergy, is defined to be an antient liberty of theCook on Lit. l. 2. c. 11. sect. 209. T. of Law. Church confirmed in divers Parliaments. It is when a man is arraigned of selony, and such like before a temporal Judg, and the Prisoner prayeth his Clergy, that is, to have his book, then the Judg shall command the Ordinary to try if he can read as a Clerk in such a book and place, as the Judg shall appoint, and if the Ordinary certine the Judg that he can, then the prisoner shall not have judgment to lose his life. The Book wasBacons use of the Law. p. 22. allowed to the Clergy, for the scarcity of them to be disposed of in religious houses; it was allowable in antient times for all offences whatsoever they were, except treason and robbing of Churches of their goods and ornaments. But by many Statutes made since, the Clergy is taken away, for murther, burglary, robbery, purse-cutting **Horse or mare-stea… ers shall not have their Clergy, because horses are for publick service and commerce. 2. The thief by them is armed to do mischief. Stamford pl. of Cr. l. 2. c. 43. Id. C. …4. Stamford ib. c. 45.horsestealing

If the indictment be only murdravit, without adding ex malitia praecogitata, the offender shall have his Clergy. If he will read as a Clerk, he ought to read all the verse, but although he do not read at the beginning, but first spell, and after read, yet he shall have allowance as a Clerk. in savorem vitae.

Fortescue saith, that if a selon …ail to read, for which he is judged to be hanged, yet in savorem …i…ae, if he demand a Book afterward under the Gallows, and read, he shall have the benefit of his Clergy. And yet it is to be supposed, he had no Ordinary at that time to demand whether he could read, but this Case ought to be specially taken, viz. where the selon is judged p. 44before the Justices of the Kings Bench, for if he be judged before the Justices o… the Goal delivery it is otherwise, because the…r Com…on … with the…r Session.

Clergy was allowed to an accessory to theDyer term. Pasch. ann. Mariae p. 99 L. Dyer term. Michael. Annis 3. & 4 Reg. Eliz. stealing of Horses and …, because the Sta…ute shall be taken most …, which speak… expressly but of the princi…ll.

Although he hath been i…stru…ed and taught in the Goal to know his Letters, and to read, this shall serve him for hi…, but the Goaler shall be punished for this.

Clergy is grantable but once, to one person, exceptFrust… a Legi▪ au…ilium implo…at, qui commi…tit in legem. he be within holy orders, for such a man may have it often. 4. H. 7. c. 13. and 1 Ed. …. 12 Lord Stamford.

COLLEGIUM.

Collegium est societas plurium corporum inter se distantium, & dicitur Collegium propriè cum simul habitant, quoniam.

1. Simul colleguntur, & Collegium constituitur in Ecclesia, vel per privilegium concessum à superiori …st …undatam Ecclesiam.

2. Vel sc. à principio …uit ordinatum quod Ecclesia esse… collegiata.

3. Vel sc. longo tempore vi…cerint collegialiter, & simul quasi possessione …ll…gii.

Item Ecclesia potest …ieri Collegiata cum consensu Episccpi … Patroni 10 Eliz. 13. Dyer.

Colour of Office, is alwaies taken in the worst part, and signifieth an evil done by pretence and countenancePloyd. Com. Dive against Manyngh. f 64. A 68. A. of an Office. But virtute officii or ratione officii, by reason of the office, and by vertue of the office, are taken alwaies in the best part, and imply that the office is the just cause of the thing; and the thing is pursuing the office.

p. 45If an Officer will take more for his fees then he ought, this is done …lo…e …i sui; but yet it is not part of his Office: and i… i… called extortion, which is worse then robbery; because that is apparant, and hath the vi… o… o… vice: but this appeareth under the v…age of vertue▪ and so is more hard to be avoided, and therefore the more detellable.

CONDITION.

Condition, is a rest …int o… bridle, annexed to a thing, so that by the not▪ performance thereof theTermes of Law. party to the condition shall receive pre…udice and loss, and by doing of the same, commodity and advantage.

If a man give Lands to another, and to the HeirsCook …n lat. l. 3. c. 5. sect. 352. males of his body, on condition that if he die without He…r female of his body; that then the Donor shall re-enter; this condition is utterly void, for he cannot have an Heir female, so long as he hath an Heir male.

If a man morgage his land to W. upon condition, that if the morgagor and f. S. pay 2…. …. at such a day to the morgagee, that then he shall re-enter; the morgagor dyeth before the day, I. S. payesCook on Littlet…n l. 3. c. 5. sect. 352. the money to the morgagee; this is a good performance of the condition, and yet the Letter of the condition is not performed: but if the morgagor had been alive at that day, and he would not pay the money, but refused to pay the same; and I. S. alone had tendred the money, the morgagee might have refused it.

If Feofment in see be made upon such a condition, that the feoffee shall not alien his Land to any, this condition is void, because when a man is so in…offed of Lands or Tenements, he hath powerLit. l. 3. c. 5. to alien them to any person by the Law. For if such a condition should be good, then it should deprive p. 46him of all the power which the Law gives him, which is against reason: and therefore this condition is void. But if the condition be such, that the …eo …ee shall not alien to such a one, naming his name, or any of his heirs, or the issue of such a one, or the like, such conditions are good: yet the King may give land in see upon condition not to alien. Cook l. 5. Knights Case. & 21. H. 7. 7.

CONFIRMATION.

Confirmation, comet… of the verb confirmare quod est firmum facere; and therefore it is said, that confirmatio omnes supplet defectus, licet id qu…d actum est, ab initio non valuit. It is a conveyanceCook on Lit. l. 3. c. 9. sect. 515. of an estate or right in esse, whereby a voidable estate is made sure and unavoidable, or whereby a particular estate is increased.

It is a strengthening of an estate formerly had, and yet voidable, though not presently void.

Qu…libet confirmatio aut est perficiens, …rese…ns, aut diminuens.Fit. N. bre. s. 169.

1. Per…i…iens, as if feoffee upon condition make feo…ment over, and the feoffer confirm the estate of the second feoffee; so if disseisee confirm the estate of the disseisor or his feoffee.

2. Crescens, doth enlarge the state of a Tenant, as Tenant a… will to hold for years, or TenantCook l. 9. of Rep. Beaumonts Case. 142. for years, to hold for life.

3. Diminuens, as where the Lord of whom the land is holden, confirms the estate of his Tenant to hold by a less rent.

p. 47CONFISCATE.

Confis…ate, this word …ometh from the LatinConfiscare i. e. conferre in fiscum. Fiscus propriè principis est, aera…ium rei publicae. T…it…s ille Pli…ii l…us ad …anum & fortasse eadem severitate …um qua aerarium …i…es. Cook 5. Rep. Foxleys Case. S…am. Pl. … …r. l. 3. c. …4. word fiscus, which (as … saith) originally signified an hamper; but metonymically the Emperours treasure, because it was antiently kept in hampers; and such good… as were forfeited to the Emperours Treasure, or any offence, were b…na …, and so do we ca…l those goods that are forfeited to the Kings Exchequer.

…an Appeal of …bbery be brought, and the P…aintifi leaveth out some of his goods, he shall not be received to enlarge his Appeal; and because there is none to have his good so left out, the King shall have them as confi…cate, according to the old rule. Quod non capit Christus, capit …iscus.

CONSPIRACY.

Conspiracy, The purpose or intent of a man without the act is not punishable by the Law; and although that for conspiracy a man may be punished in the Star-chamber; yet this is by the absolute power of the Court, and not by the Ordinary course of the Law.

CONSTABLE.

Constable, comes of two old Saxon word, Kinning, which signifieth King, and Stable, stability; as the stability of the King and Kingdom.

The Common Law requireth that every ConstableI. Doderig. be Idoneus homo, i. …. apt and fit for exercise of the said Office; and he is said in Law to be p. 48Idoneus, which hath three things, Honesty, Science, and ability:

1. Honesty, to execute his Office truly without malice, affection, or partiality.

2. Science to know what he ought to do duly.

3. Ability as well in substance or estate, as in bodyCook 8 Rep. Grieslies. Case. to execute his Office, when need is, diligenly, and not through impotency o… indi…ence to neglect it; for if poor men which live by the labour of their hands, be ele… toDalt. Iust. of P. this Office; they will rather per…it Felons and other Malefactors to escape, and neglect the execu…ion of their Office in other points, then intermit their labour, by which their w…e and children live.

The Office and authority of high and petty Constables remaineth, nowithstanding the death of the King, for their authority is by the common Law and not by commission; so also of Mayor…, … liffs in Towns corporate, &c.

CONTRACT.

Contract, (called by the Civilians acceptilati) is an agreement between parties concerning goods or land… for money or other recompence: It is called a contract because by covenanting diversae v…luntates in unum contrahuntur. It is a bargainContractus est quasi actus contra actum. Cook. or covenant between two parties, where one thing is given for another, which is called Quid pr… Q…, as if you sell my horse for twenty Shillings, you may keep the horse till the other have paid the money. The want of recompence causeth it to be but nudum pactum, unde non oritur …. For if a man make promise to me, that I shall have twenty shillings, and after I ask it, and he will not deliver it; yet you shall never have any action to recover it, because this promise was no contract, p. 49but a bare promise; but if any thing were given for the twenty shillings, though it were but to the value of a penny, then it had been a good contract.

If he to whom the promise is made, have a charge by reason of the promise, which he hath also performed, then in that case he shall have an Action for the thing that was promised, though he that made the promise have no worldly profit by it. As if a man say to another, Heal such a poor man of his d…sease, or make an High-way, and I shall give thee thus much; andD. and Student▪ cap. 4. if he do it, I think an Action lyeth at the Common Law.

This word (pro) makes a contract conditionall; as if I Covenant to make an estate pro maritagio habendo; if the marriage take not effect, I shall be discharged of this Covenant. So if an Annuity be granted, pro consilio impendendo, stop the Counsell giving, and stop the Annuity;L. Dyer termin. Michael Anno 6 E. 6. P. 76 also if a man grant a way over his Land, and pro chimino illo habendo, he granteth to him a rent-charge: if one be stopped, the other is stopped; so it is in contracts; As for a Hawk to be delivered me at such a day, you shall have my horse at Christmass; if the Hawk be not delivered at the day, you shall not have an Action for the horse.

The Infants contract for his meat, apparell, and necessaries is good, if he be of the age of fourteen years.

COPY-HOLDThe Tenants thereof do hold per copiam rotulorum Domini.

Copy-hold, is a Tenure, for which the Tenant hath nothing to shew, but the Copies of the Rolls, made by the Steward of his Lords Court. This Tenure is called a base Tenure, because it holdeth p. 50at the will of the Lord; it was wont to be called Tenure in villenage.

The doing of fealty by a Copy-holder, provethCook on Lit. p. 63. that a Copy-holder so long as he observes the custom of the Mannor, and payeth his services, hath a fixed estate.

Although in the judgment of the Law, he hath but estate for will; yet custom hath so established and fixed his estate, that by the custom of the Mannor, it is descendible to him and his Heirs; and therefore his estate is not meerly ad voluntatem It is an estate of inheritance, secundum quid. Cook 4 Rep. Copy-hold case.Domini, but ad voluntatem Domini secundum consuetudinem manerii; and by keeping the custom he shall inherit the Land, as well as he that hath Frank-tenement at Common Law, for consuetudo est altera Lex.

The stile of a Copy-holder imports three things.

1. N…men, his Name.

2. Originem, his Beginning.

3. Titulum, his Assurance.

1. His Name is, Tenant by Copy of Court Roll.

2. His Beginning is, ad voluntatem Domini, for at the beginning he was but Tenant at the will of the Lord.

3 His Title or Assurance, secundum consuetudinem manerii; for the custom of the MannorCook 9 Rep. Combes case. hath fixed his Estate, and assured the Land to him as long as he doth his service and duties, and performes the custom of the Mannor.

If a Copy-holder be a popish Recusant, his Copy-hold is forfeit, for his life to the Lord of the35 Eliz. c. 1. Mannor, if the Lord be not Re…usant, and if the Lord be, then to the King.

p. 51CORONER.

Coroner, is an antient Officer of trust, and ofHis Name is derived à Corona, because he is an Officer of the Crown, and hath …nusance of some Pleas, which are called Placita Coronae. Cooks 2 part of Instit. c. 17. See more there. He is s… called, because he deals principally with Pleas of the Crown, o… matters concerning the Crown. Cooks 4 part of Instit. c. 59. T. of Law. great authority, ordained to be a principall confer vator or keeper of the peace, to bear record of the Pleas of the Crown. Although by the Law, the Coroner cannot enquire of any felony; but the death of a man; yet it hath been said, that in N… than…erland they enquire of all felonies; but this authority they maintain by prescription. If a man be killed or drowned in the arms or creeks of the Sea, where a man may see Land from the one part to the other, the Coroner shall enquire thereof, and not the Admirall, because the Countrey thereof may well have knowledg.

The empannelling of the inquest, and the view of the body, and the giving of the Verdict, isSmiths Commonwealth of England▪ c. 24 commonly in the street in an open place, and in corona populi, but this name rather cometh, because the death of every subject by violence is accounted to touch the Crown of the Prince, and to be a detriment unto it. The Prince accounting that his strength, power, and Crown doth consist in the force of his people, and the maintenance of them in security and peace.

If a Coroner be minus idoneus ad officium illud exequendum, this is a good cause to remove him, for he ought to be the Coroner qui melius scia… & possit officium illud intendere.

He must have two Properties, viz. sufficient Knowledg▪ Ability and diligence in execution of his Office.

p. 52Sir Edward Cook in his second part of his Instit. c. 10. saith he should have five Q…a… ics.

…1. He should be Probus homo.

2. Legalis homo.

3. Of sufficient understanding and knowledg.

4. Of good ability and power to execute his Office according to his knowledg.

5. Diligent in the execution of his Office, See more there.

Coroners remain conservators of the Peace▪ within the County where they are Coroners, notwithstanding the Kings death, for they are made by the Kings writ, and not by Commission, as Justices are, whose authority is determined by the death of the King, for by the Commission heDaltons Iust. of P. maketh them Iusticiarios suos, so that he being once dead, they are no more his Justices.

The Statute giveth the Coroner thirteen Shillings and four pence for taking inquisition super visum corporis.

CORPORATION.

Corporation, is a permanent thing that may have succession. It is an assembly and joyning togetherT. of Law. of many into one fellowship, Brother-hood and mind, whereof one is head and chief the rest are the body.

No Corporations can be made but by the King, yet his Highness may depute this authority to another,Fulb. Law of Nature. 8. c. for so it cometh originally from the King.

COVENANT.

Covenant, is an agreement made by Deed in writing, and sealed between two persons.

An Insant (by the Common Law) is not of age to bind it self by Covenant, ante annos nubiles, p. 53which is twelve years in a woman, and fourteenDaltons Iust. of P. years in a man-child.

COVINE.

Covine, cometh of the French word convine, andCook on Lit. l. 3. c. 12. sect. 678. Plowd. fol. 54. b. is a secret assent determined in the hearts of two or more, to the defrauding and prejudice of another.

As if Tenant for life will secretly conspire with another, that the other shall recover in prejudice of him in reversion, for by this his reversion is taken away. For this conspiracy may very well be said to be covine, since all the parts are therein contained, for it is an unity in the hearts of two, and it is secretly done in respect of a third who is thereby damni…ied, for if it be secret quoad him who is concerned, it is secret within the description.

COUNT.

Count, cometh of the French word conte which in Latin is narratio, and is vulgarly called a declaration. The original Writ is according to his Name Breve, brief and short, but the Count whichCook on Lit. l. 1. c. 1. sect. 10. the Plaintiff or Demandant makes, is more narrative and spacious, and certain both in matter and circumstance of time and place, that the Defendant may be compelled to make a more direct answer, so as the Writ may be compared to Logick, and the Count to Rhetorick.

COUNTY.

County, signifieth as much as Shire, both containingCook on Li… ▪ l. 2. c. 10. sect. 124. a compass or portion of the Realm, into the which all the land is divided for the better government thereof, so as there is no Land, but it is within some County: there be in England 41 Counties, and in Wales 12.

p. 54COURT.

Court, is diversly taken, sometimes for the house… cometh of he Latin uria which …so is etched from cura (as Valla writeth) whereby it is notified that heed and care ought to be taken in the deciding of controversies. where the King remaineth with his ordinary retinue, and also the place where Justice is judicially ministred. In times past the Courts and Benches followed the King, and his Court wheresoever he went, which thing especially shortly after the conquest being found very cumbersome, painfull, and chargeable to the people, it was agreed by Parliament, that there should be a standing place where judgment should be given, and it hath long time been used in Westminster-Hall, which King William Rufus builded for the Hall of his own house. In that Hall are ordinarily seen three Tribunals, or Judges …ea…s. At the entry on the right hand the Common Pleas. Where Civil matters are to be pleaded, specially such as touch Lands or contracts. At the upper end of the Hall on the right hand, the Kings Bench, where Pleas of the Crown have their place, and where KingsWherein are holden all common Pleas between Subject and Subject of all matters of common Law so called, for that it serveth for the exact and precise administration of the common Law, Smiths common-wealth of England. in former times have often personally sate. And on the left hand sitteth the Chancellour accompanied with the Master of the Rolls, who in Latin may be called Custos Archiv…rum Regis, and certain men learned in the Civil Law, called Masters of the Chancery, in Latin they may be called Asses…es.

There is also another Court of special noteSmiths Commonwealth of England, camera stellata, or of the Latin word stellio, a starry Beast, whence c…senage is called by the Civilians crim…n stellionatus, because that sinne is punished in this Court, Lamb. Iur. of Cour. called the Star-chamber, either because it is full p. 55of windows, or because at the first all the roof thereof was decked and garnished with gilded stars.

The Judges of this Court are the Lord Chancellour, the Lord Treasurer, all the Kings Majesties counsell, the Barons of this Land; and many other Courts there are, of which some may fine and not imprison, as the Court Leet, some cannot fine or imprison, but amerce, as the Court-county, Hundred, Baron, for no Court may fine or imprison which is not a Court of Record: some may imprison and not fine, as the Constables at the pettyCook 11 Rep. Godferys case. Sessions for any affray made in disturbance of the Court may imprison but not fine: some Courts can neither imprison, fine, nor a merce, as ecclesiasticall Courts held before the Ordinary, Archdeacon or other Commissaries, all which proceed according to canon or civil Law; and some may imprison, fine, and amerce, as the case shall require, as the Courts of Record at Westminster, and else where.

Courts of Record are the Kings Courts, as he is King, those have that credit, that no ameroement can be taken against any thing there entred or done.

CURSITER.

Cursiter, they are called cursitors, because theyIudge Doderidge. make brevia de cursu, Writs of course so called, because they have a setled form prescribed in an antient Book, therefore called the Register of Writs.

COURTESIE OF ENGLAND.

Courtesie of England, is where a man taketh aIt is called courtesie of England, because it is not used in any other Realm, some say he shall not be Tenant by the courtesie, unless the Child which he hath by his Wife be heard cry, for by the cry it is proved that the child was born alive, Lit. Nam dicunt E vel A quotquot nascuntur ab Eva. Wife seised in Fee simple or Fee tail general, or seised as Heir of the Tail speciall, and hath issue by the Wife, Male or Female, b… the p. 56issue dead or in life, if the Wife die, the Husband shall hold the Land during his life by the Law of England. If it be born alive it is sufficient, though it be not heard cry, for peradventure it may be born dumb, and this is resolved clearly in Pains Case 8 Rep. with whom agree Fitzherbert and Perkins 9. 47. for the pleading is that during the marriage he had issue by his Wife, and upon the evidence it must be proved that the issue was alive, for mortuus exitus non est exitus, Cook on Lit. l. 1. cap. 4.

CURTILAGIUM.

Curtilagium, is a soil or Garden spot belonging to a Messuage, quasi curta pecia terrae. Fairfax. 21 Ed. 4. fol. 52.

If the Wife be delivered of a monster, whichCook ib. & Pains case. hath not the shape of mankind, this is no issue in the Law, but although the issue hath some deformity in any part of his body, yet if he hath humane shape, this sufficeth.

If the issue be born deaf or dumb or both, or be born an idiot, yet it is a lawfull issue to make the Husband Tenant by the courtesie, and to inherit the Wifes Lands of such Inheritances whereof actuall seisin cannot be gained untill a certain time (as of Rent in fee, in right of the Wi…e, untill the dayPerkins fol. 90. b. & 91. a. of payment, nor of advowson in gross untill the incumbent die) of such Inheritances the Husband shall be Tenant by the courtesie, although he be not actually thereof seised during the Coverture.

p. 57CONSUETUDO.

This word Consuetudo, hath in Law divers significations.Cooks 2 part of the Institutes c. 30.

1. It is taken for the Common Law, as cons…etudo Angliae.

2. For Statute Law, as contra consuetudinem communi concilio regni edit.

3. For particular customs, as Gavel kind, Borough, English, and the like.

4. For Rents, Services, due to the Lord, as consuetudines & servitia.

5. For Customes, Tributes, or Impositions, as de novis consuetudinibus levatis in regno, sive in terra sive in aqua.

6. Subsidies, or Customes granted by common consent, that is, by authority of Parliament, pro bono publico, these be, Antiquae & rectae consuetadines.

CUSTOM.

Custom, is one of the main Triangles of the LawsCook on Lit. lib. 2. …. 10. sect. 165. of England, these Laws being divided into.

1. Common Law.

2. Statute Law.

3. Custom.

Custom is a reasonable act iterated, multipliedSir Iohn Davis his Reports. Cook ubi supra. and continued by the people time out of mind. Of every custom there be two essential parts, time and usage, time out of mind, and continual and peaceable usage without interruption.

Some say there are three essential qualities of a good Custom.

1. Certainty.

2. Reasonablen…ss.

3. Use or continuance.

Others say, a good Custom ought to have four inseparable Properties.

p. 581. A reasonable commencement (for everyThe commencement of a custom must be upon a reasonable ground and cause. Consuetudo contra rationem introducta po…ius usurpatio quam consue…udo appellari …er. Sir John Davis Rep. Case …f …anistry. Davis ubi supra. Custom hath a commencement, although that the memory of man extend not to this, as the River Nilus hath a fountain, although the Geographers cannot find it) whence these maximes in Law▪ Obtemperandum est consu…tudini rationabili tanquam legi. In consu…tudini…us n… diuturnit… temporis, sed soliditas rati…nis est consideranda. For if the custom be unreasonable in the originall, no use or continuance can make this good. Quod ab initio non valuit, tractu temporis non convalescit. A thing that is void ab initio, … prescription of time can make this good. Every custom is not unreasonable which is against the particular rule or maxim▪ of the posi…ive Law, as the custom of Gavel-…ind and Borough English are against the maxime and descent of inheritance, and the custom of …, the …ather to the bough, the s…n to the plow, i… against the maxime of eschea…es, for consuetudo ex certa causa rationabili …sitata privat communem legem. Besides a custom may be prejuciall to the interest of a particular person, and yet reasonable; where it is for the benefit of the common-wealth in general: Salus populi suprema … est…, as custom to make bulwarks upon the land of another for defence of the Kingdom, 36 H…n. 8. Dyer 60. B, and to raze houses in publico incendi…, 29 H. 8. Dyer 36. B. A custom which is prejudicial and injurious to the Common-wealth, and begins only by oppression and extortion of Lords, hath no lawfull commencement, but is void: So bySee him. Littleton fol. 46. Custome that the Lord shall have fine of his Frank-tenant for marriage of his Daughter is held void; and custome that the Lord ofMalus usus abolendus est. the Mannor shall detain distress taken upon his demeans untill a fine be made to him for dammage at his will, is also void, 3 Eliz. Dyer 199. B.

p. 592. Custom ought to be certain, and not ambiguous, for incerta pro malis hahentur, an uncertain thing may not be continued time out of mind withoutDavis ib. interruption.

3. Custom ought to have continuance without interruption, time out of mind, for if it be dis…onConsuetudo is nothing else but communis assuetudo. inued within memory, the custom is gone: consuetudo …emel reprobata non p…si amplius indu…; for as continuance makes custom, so discontinuance destroyes it. Nihil …am conveniens natural… aequita…i, quam unum quodque dissol… …o ligamine qu… ligatum est.

4. It ought to be submitted to the Pr…rogative of the King, and not exalt it self against it; for prescription of time makes a custom, but nullum tempus o…urrit Regi. If a man hath Toll or Wreck, or Stray by prescription, this extends not to the goods of the King: So prescription to have sanctuary for treason; or to have ca…a…la selonum, is void against the King; because that such a priviledge exaltat se in praerogativam Regis, 1 Hen. 7. 236.

Custom is either,

1. Generall, which is currant through England. The particular and approved custom of every Nation is the most usual binding and assured Law. Cook pref. to 5 Rep. Dr. and Student. c. 6.That which is used per totam Angliam, is Common Law, & quod habetur consutend… per totam Angliam, is not a good manner, to alledge a Custom, Cook 9 Rep. Combes Case.

If any generall Custom were directly against the Law of God, or if any Statute were made directly against it, as if it were ordained, that no Alms should be given for no necessity, the custom and statute were void.

2. Particular, is that which belongeth to this or that County, as Borough English in many places, Gavel-kind to Kent, for all the Heirs Males to inherit alike; Countries have their Customes according p. 60to the constitution of the place: as in Kent North-wales; because those Counties have been most subject to forreign invasions, that every man there may be of power for resistance; the inheritances for the most part descend in Gavel-kind, viz. to every brother alike. There are particular Customs also to this or that Lordship, City, or Town. The Custom of the County of Buckingham is, and hath been time our of mind, that every Swan which hath her cou…e in any water that rans to the Thames within the said County; if the Swan come upon the Land of any man, and make her nest, and hath Cignets upon the same, he that hath the property of the Swan, shall have two of the Cignets, and he whose land it is, shall have theCook 7 Rep. case of Swans. third Cignet which shall be of least value: this was held a good custom, because the owner of the land suffered them to breed there, whereas he might have chased them out.

In London, 1. If the Debtor be a Fugitive, theCook 8 Rep. case of the City of London. Creditor before the day of payment may arrest him to find better surety.

2. They may there enter a mans house with the Constable or Beadle upon suspicion of Bawdery.

3. They may remove an Action before the Major, depending the Plea before the Sheriffs.

These Customs in London though against the rule of Common Law, are allowed eo potius, because they have not only the force of a Custom, but also are supported and fortified by authority of Parliament.Consuetudo loci est observanda. Camb. Brit. in Glocestershire.

In some places within the County of Glocester, the goods and lands of condemned persons fall into the Kings hands for a year only and a day, and after that term expired (contrary to the Custom of all England besides) return to the next heirs.

p. 61Baldwin le Pettour, held certain Lands in Hemingston in Suffolk by Serjeanty, for which on Christmass-day every year before the King of England Cambden in Suffolk.he should perform one Saltus (that is, he should dance) one suffletus (puff up his checks, making there with a sound) and one bumbulus (let a crack downward.)

In some Countrey an Infant when he is of the age of fifteen years may make a feoffement, andD. & Student c. 10 the feoffement is good; and in some Country when he can mete an Eell of Cloth.

In som places the Widow shall have the whole or half, dum s…la & castra vixerit. Sir George Farmour claimed by Custom in his Mannor of Torcester in Northampton-shire, to have a Common Bake-house, and that none others should bake to sell there; and it was adjudged a good Custom Cook 8 Report. Case of the City of London. See more there concerning particular Customs.

Custom differeth from prescription, because

1. Custom is common to many, and prescription particular to this or that man.

2. Prescription may be for a shorter time then Custom, sc. for five years, or one year orTermes of Law. less: As if a fine be duely levied of Lands or Tenements, and be not gainsaid within five years, this is a barre to all claim for ever.

Custom is nothing else but foreign Suidas.as indeed Law is no other thing then foreign.