A Philological Commentary, Philological commentary · Part L
L.
LAND.
LAnd, The Land of every man is in the Law inclosed from other, though it lie in the open field, and therefore if a man do trespassDr. & Stucap. …. therein, the W…i… shall be, Quare clausu… fregit.
Terra, Land in his generall and legall signification,Cook on Lit. l. 1. c. 2. sect. 14. includeth not only kind of grounds, as Medow, Pasture, wood, but House…, and all Edifices whatsoever: i… a more restrained sense it is taken for arable ground.
Twenty pound of Land was held antiently sufficient to m…t in the degree of a Knight, 400C…o…s … Re. A…th…y Howescase. markes of Land per annum, was a competent living … or a Baron, and 400 l. per annum, ad sustinendum nomen & …us of an Earl 8… markes per annum, the Revenue of a Marquels, and 800 l. of a Duke.
Qui capit u…orem, capit lites, & qui habet terras, ha…er …. A Wise brings Warres, and wealth brings Warres, Quarrels, Suits and Controversies at Law.
All Lands are holden of the Crown either immediatelyF…r …rigina… all lands were derived f… the Crown. or mediately by meine Tenants, the Conqueror by righ… o… Conquest got all the Lands of the Realm into his own hands, and as he gave it, he still reserved Rents, and services, which reservation is that which is called the Tenure of Lands.
Terra Land, in the legall signification comprehendeth any ground, soil, or earth whatsoever, as Medows, Pastures, Woods, Moors, Waters, Ma…ishes, Furses and Heath, Terra est n…men generalissimum, & comprehendit omnes species terrae, Cook on Lit. l. 1. c. 1. sect. 1.but properly terra dicitur à terendo, quia vomere teritur, and antiently it was written with a single …, and in that sense it includeth whatsoever may be ploughed, and is all one with arvum ab arando. It legally includeth also all Castles, Houses and other buildings: For Castles and Houses consist upon two things, viz. Lands or Ground, as the foundation and structure thereupon; …o as passing the Land or Ground, the structure or building passeth therewith.
The earth hath in Law a great extent upwards,Cooks Rep. A…u…eds case. for cujus est solum, ejus est usque ad caelum.
If a man seized of Lands in see, by his Deed granteth to another the profits of those Lands, to have and to hold to him and to his Heirs, and maketh livery secundum formam chartae, the whole Land it self doth pass, for what is the Land, but the profits thereof? for thereby pasture, herbage, trees, mines, and all whatsoever parcell of the Land doth pass.
LARCENIE.
Larcenie, is so called from the Latin, Latrocinium; Terms of Law, the Indictment must be also coepit & asportavit, or coepit & abduxit. One shall forfeit his goods and be whipped for petty Larceny.it is defined to be the taking away of some personall Chattel in the absence of the owner. In respect of the thing taken away, it is said to be either great or little. Petty Larceny is, where the thing stollen doth not exceed the value of 12 d. and that (say some) is Felony: For the Indictment (say they) must be felonice coepit, and a man may justifie the calling of one theif for such an offence, and he shall forfeit all his goods and chattels for such a felony.
If one shall steal goods to the value of 4. d. at one time, and 6 d. at another, and of 3. d. at another time, which do exceed the value of 12 d. and the…e severall goods be all stolen from one and the same person, then may they be put together in one Indictment; and the offender being thereupon arraigned, and sound guilty, shall have judgment of Death.
LATINE.
Latine. Fals Latin shall not quash an Indictment,False Latin will abate a writ, not a Grant, Malagrammatica non vitiat concessionem sal…a Orthographia non vitiat …noce…onem. Cook 5 Rep. Longs case. nor abate any Declaration; for although the Original Writ shall abate for sal…e Latin, yet judicial Writs, or a Fine, shall not be impeached for false Latin.
The same Law is of an Indictment, as if in an Indictment it be proefato reginae, whereas it should be praefatae reginae, or praefatae Regi, for praefato Regi; the word being Latin, and significant; although it be not congruous Latin, the Indictment for such incongruity shall not be quashed.
But if the word be not Latin, nor a word allowed by the Law, as vocabulum artis, (for every Art and Science have their propria vacabula Artis) but i… insensible; and if it be in a materiall point, this makes the Indictment insufficient, as burglaritur, murarum, selonicè, & similia sunt vocabula Artis known to the Law; and therefore if these words, or the like, be mistaken in an Indictment, so that in a materiall place there is an insensible word which is not Latin, nor any word known in the Law, this makes the Indictment vitious and insufficient, as murdredum for murdrum, or burgariter for burgulariter; feloniter for felonice.
LAW.
Law, is an Art of well-ordering a Civil Society.Bracton …aith, that Lex est sanctio justa, jubens honesta, & prohibens contraria: so as every Law must have three qualities. 1. It must be justa, 2. Jubens honesta, 3. Prohibens contraria.
Our Common Laws are aptly and properly called Leges Angliae the Laws of England, because they are appropriated to this Kingdom of England as most apt and sit for the Government thereof, and have no dependance upon any forrein Law whatsoever, no not upon the Civil or Canon Law other then in Cases allowed by the Laws of England. Cook's 2 part of Instit. c. ….
The Common Law of England is a Law used time out of mind, or by prescription throughout the Realm.
The Law of nature is that which God at the time of creation of the nature of man, infused into his heart for his perservation and direction, and this is lex aeterna; this was 2000 years beforeNeminem oportet esse sapientiorem legibus, ubi lex non distinguit, nec nos distinguere debemus. Lex plus laudatur quando ratione probatur. any Law written, and before any Judiciall or Municipall Laws. Iura naturalia sunt immutabilia this Law is indelibilis & immutabilis, Cook Calvins Case.
The Law of England is grounded upon six principall Points:
1. The Law of Reason.
2. The Law of God.
3. On divers generall Customes of this Realm.
4. On divers Principles and Maximes.
5. On divers particular Customes.
6. On divers Statutes made in Parliaments.
The Antient and excellent Laws of Aengland Cook preface to the 6 Rep. and on Lit. l. 2. c. 12. sect. 213.are the Birth-right, and the most antient and best inheritance that the Subjects of this Realm have, for by them he enjoyeth not only his Inheritance and goods in peace and quietness, but his life, and his most dear Countrey in safety: sometime it is called Right; sometime Common Right, and sometime Communis Iustitia.
Our Laws are the same which the Norman Conqueror found in this Realm of England. The Laws that William the Conqueror sware toCook preface to the 8 Rep. observe, were, Bonae & approbatae antiquae regni leges.
The Law of England respects the effects and substance of the matter, and not the very niceity of form and circumstance, Qui haeret in litera, heret Cook on L…tieton.in cortice, apices juris non sunt jura: Nihil quod est cortra rationem, est licitum: For Reason is the life of the Law, nay, the Common Law it self is nothing else but Reason, which is to be understood of an artificiall perfection of reason gotten by long study, observation, and experience, and not of every mans naturall reason: For nemo nas…itur Cook on Lit. l. 2. c. 9. sect. 138.artifex. This legall reason is summa ratio. And therefore, if all the reason that is dispersed into so many severall heads were united into one, yet could he not make such a Law as the Law of England is, because by many successions of Ages it hath been fined and refined, by an infinite number of grave and learned men, and by long experience grown to such a perfection for the Government of this Realm, as the old Rule may justly be verified of it, Neminem oportet esse sapientiorem legibus. No man (out of his own private reason) ought to be wiser then the Law, which is the perfection of Reason.
Quaeritur, ut crescunt tot magna volumin… legis?
In promptu causa est, crescit in orbe dolus.
All Books written in the Law are either Historicall,See in Fulbecks parallels, 3 chap. a censure of the Writers of the Law. as the Year-Books of the Common Law, or explanatory, as Mr Stamford his Treatise of the Prerogative, or Miscellan…all, as the Abridgements of the Common Law, or Monologicall, being of one certain subject, as Mr Stamford his Book intituled the Pleas of the Crown, Lamberds Justice of Peace. One of the Books of the Law is called Fleta, because the Authour wrote it in the Fleet, and the Fleet took the name of the River running by it, called the Fleet. Cook's Preface to 10 Rep. See Mr Seld. ad Fled. Dissect.
LEGACY.
Legacy (otherwise termed by our Common Lawyers a devise) is a Gift left by the deceased to be paid or performed by the Executor, or Administrator.
LEASES.
Leases. There be three kinds of persons,Lease from the French laisser, linquere, relinquere, omittere. that at this day may make Leases for three Lives, which could not do so when Littleton wrote.
1. Any person seised of an Estate tail in his own right.
2. Any person seised of an Estate in Fee-simple inCook on Lit. l. 1. c. 7. sect. 58. the right of his Church.
3. Any Husband and Wife seised of any Estate of Inheritance in Fee-simple, or Fee-tail in the right of his Wife, or joyntly with his Wife before the coverture, or after.
If one make a Lease for so many years as heId. ib. shall live, this is void in praesenti, for the incertainty.
In the eye of the Law, any estate for life being an estate for free-hold, against whom a praecipe Id. ubi supra.doth lie, is an higher and greater estate then a Lease for years, though it be for a thousand, or more, which are never without suspicion of fraud.
Touching the time of the beginning of a Lease for years; it is to be observed, that is a Lease be made by indenture, bearing date 26 May, to have and to hold for twenty one years, from the date, or from the day of the date, it shall begin on the twenty seventh day of May, if the LeaseCook 5 Rep. Claytons case. bear date the twenty sixth day of May, &c. to have and to hold from the making thereof, or from henceforth, it shall begin on the day in which it is delivered; for the words of the Indenture are not of any effect till the delivery, and thereby from the making or henceforth take their first effect. But if it be à die confectionis, then it shall beginId. ib. on the next day after the delivery, if the habe… dum be for the term of twenty one years without mentioning when it shall begin, it shall begin from the delivery, for there the words take effect. If an Indenture or Lease bear date which is void, or impossible, as the 30 day of February, or 40 of March, if in this case the term be limited to begin from the date, it shall begin from the delivery, as if there had been no date at all.
It is true, that every Lease at will must be at theCook on Lit. u…i supra. sect. 68. will of both parties, and therefore when the Lease is made to have and to hold at the will of the Lessor, the Law implyeth it to be at the will of the Lessee also; for it cannot be at the will of the Lessor, but it must be at the will of the Lessee.
If the Wife of I. S. be great with Child with a Sonne, and a Lease be made untill the issue in the Womb of his Mother come to full age, this is not a Lease for years; for at the time when the Lease is to take effect, it is uncertain when the Sonne shall be born; and by consequence the begining, continuance, and end of this is uncertain. And when a Lease for years shall be made good by reference, the reference ought to be to a thing which hath expressed certainty at the time of the Lease made, and not to a possible or causuall certainty. Therefore, if I have rent of 20 s. per annum in fee issuing out of Black Acre, payableCook 6 Rep. Bishop of Bathes case continually at the Feast of Easter, and I grant the same Rent to you untill ye shall have received of the same Rent 21 l. in this case you shall have this Rent for 21 years; for this hath reference to the express certainty, viz. the annuall Rent, which is twenty Shillings per annum, untill twenty one pounds be levied of the issues and profits, this is but a Lease at will without livery, for it is not certain, that the Land shall be every year of an annuall value.
If a man hath Mines hidden within his Land,Cook 5 Rep. Cases of Leases. and leaseth his land, and all the Mines within it, there the Lessee may dig for them, for Quando aliquis aliquid concedit, concedere videtur & id sine quo …es ipsa esse non potest.
There must not be a double Lease in being at one time, as if a Lease for years be made according to the Statute, he in reversion cannot put but the Lessee, and make a Lease for life, or lives, according to the Statute, nor è converso; for theCook on Lit. l. 1. c. 7. sect. 58. words of the Statute be to make a Lease for three lives, or one and twenty years, so as one or the other may be made, and not both.
A Lease of Lands is as good without deed as with deed. But in a Lease for term of life, it behoveth to give livery and seism upon the land, or else nothing shall pass by the grant, because they are called Free-holds.
LIBELL.
Libell. Every Libell (which is called samo…us libellus seu infamatoria scriptura) is made either against a private man, or against a Magistrate, or publique person; the first deserves a severe punishment; for although the Libell be made against one, yet this incites all the same Family, kindred, or socie…y to revenge; the second is a greater offence, for it concernes not only the breach of Peace, but the scandall of Government.
2. Although the private man or Magistrate be dead at the time of making the Libell, yet this is punishable: for in one case this incites others of the same Family, Blood, or Society, to break the Peace; and in the other the Libeller traduceth an… slandereth the State and Government, which dieth not.
3. A Libeller was to be punished either by indictment at the Common Law, or by Bill, if heCook▪ 5▪ Rep. de libellis famosis. deny this, or ore t…enus, upon consession in the Star-Chamber, and according to the quality of his offence, he was to be punished by sine or imprisonment, and if the case be exorbitant, by pillo…y and loss o… his ears.
4. Non refert, it skills not, whether the Libeil be true, or the party against whom this is done, be of good or evil same.
Every infamous Libell, aut est in scriptis aut sine scriptis:
1. In scriptis, when an Epigram, or other writing is composed, or published to anothers disgrace, and it may be published Verbis aut …antilenis, as where this is malitiously repeated or sung in the presence of others.
2. Traditione, when the Libell, or any Copy of it is delivered over to scandalize the party. Famosus Cook 5 Rep. de libellis famosis.libellus sine scriptis may be
1. Picturis, as to paint the party in a shamefull and ignominious manner.
2. Signis, as to fix a Gallowes, or other reproachfull and ignominious signes at the door of the party, or else-where. And it was resolved, M…h. 43. and 44 Elizab. in the Star-Chamber in Hallywoods case, that if any find a Libell, and will p…eserv▪ himself out of danger, if this be composed against a private man, the finder either may burn this, or presently shew it to the Magistra…e: But if it concern a Magistrate, or other publique person, the finder ought presently to deliver this to a Magistrate, to the intent, that by examination and industry the Authour may be found and punished. Tria sequuntur defamatorem samosum.
1. Pravitatis incrementum, increase of lewdness.
2. Bursae decrementum, evacuation of purse and beggery.
3. Conscientiae detrimentum, shipwrack of Conscience.
If one read a Libell, or hear it read, this is no publication of it; for before he read, or hear it read, he cannot know it to be a Libell; or if he hear, or read it, and laugh at it, this is no publication of it: But if after that he hath read, or heard it, he repear this, or any part of it in the hearing of others; or after that he knows it to be a Libell, reads it to others, this is an unlawfull publication of it; or if he write a copy of it, and do not publish it to others, this is not a publication of the Libell: for every one which shall beCook 9 Rep. Io. Lambs case. convicted, ought to be a contriver, procurer, or publisher of it, knowing it to be a Libell. But it is a great evidence that he publisheth it, when he knowing it to be a Libell writes a copy of it▪ unless he can after prove that he delivered this to a Magistrate to examine it, for then the subsequent act explains his precedent intention.
LIBERTY.
Liberty. This word Liberty notes a priviledgeBracton, l. 2. c. 2. held by grant or prescription, whereby a man enjoyes some favour beyond an ordinary Subject.
Liberty from the Law is the delivering us from that hand or power of the Law, by which we were formerly held.
LIGEANCE.
Ligeance, is so called à ligando, being the greatest and highest obligation of duty and obedience that can be. It is, the true and faithfull obedienceCook on Lit. l. 2. c. 11. sect. 198. Ligeantia est vinculum fidei ligeantia est legis essentia. of a Liege-man, or Subject to his Liege-Lord or Soveraign.
Ligeantia Domino Regi debita est Lex.
1. Perpetua.
1. Originaria, sive naturalis sive nata, and this is alwaies absolute, and due by birth-right▪ and is called Alta ligeantia; and he that oweth this, is called Subditus natus.
2. Data, aut per denizationem aut per naturalizationem.Cook on Lit. l. 2. c. 11. sect. 198. and 7 Rep. Calv. case.
2. Temporaria, aut
1. Localis, wrought by the Law when an Alien… that is in amity, cometh into England, fo… then he is within the Kings protection, and owes a locall obedience or ligeance.
2. Limitata, as when one is made denizen for life, of in tail.
As the ligatures or strings do knit together theCook 7 Rep. Calvins case. joynts of all the parts of the body, so doth ligeance joyn together the Soveraign and all his Subjects, quasi uno ligamine.
Between the Soveraign and the Subject, there is duplex & reciprocum ligamen; quia sicut subditus Regi tenetur ad obedientiam, ita Rex subdito tenetur ad protectionem. There is praesidium due on the Kings side, subsidium on the Subjects part. In the Acts of Parliament, Subjects are called Liege-people, and the King the naturall Liege-Lord of his Subjects; therefore protectio trahit subjectionem, & subjectio protectionem. He should maintain and defend them, and they are bound to obey and serve him. Ligeance is due only to the King, to his naturall body, therefore the indictment in Treason concludeth, Contra ligeantiae suae debitum.
LIMITATION.
Limitation. If a man give lands to a man, toCook on Lit. l. 3. c. 13. sect. 719. … have and to hold to him, and to the heirs males of his body, and to him and the heirs females of his body; the estate to the heirs females is in remainder, and the daughters shall not inherit any part so long as there is issue male; for the estate to the heirs males is first limited, and shall be first served, and it is as much to say, and after to the heirs females, and males in construction of Law are to be preferred.
LIVERY.
Livery of seisin, is a solemnity that the Law requireth for the passing of a Free-hold, or Lands or Tenements, by delivery of sesin thereof. There be two kinds of livery of seisin, viz. a livery in Deed, and a livery in Law. A livery in Deed, is when the Feoffor taketh the ring of the door, or turf, or twig of the Land, and delivereth the same upon the Land to the Feoffee, in the name of seisin of the Land. A livery in Deed may be two mannerCook on Lit. l. 1. c. 7. sect. 59. of waies by a solemn act and words, as by delivery of the ring, or hasp of the door, or by a branch or twig of a tree, or by a turf of the Land; and with these, or the like words, the Feoffor, and Feoffee, both holding the deed of the feoffment, and the ring of the door, hasp, branch, twig, or turf; and the Feoffor saying, Here I deliver you seisin and possession of this house, in the name of seisin, and possession of all the Lands contained in this Deed; or enter you into this house or land, and have and enjoy it according to the Deed; or enter into the house or land, and God give you joy; or I am content you shall enjoy this Land, according to the Deed, or the like. A livery in Law is when the Feoffor saith to the Feoffee, being inCook on Lit. l. 1. c. 7. sect. 59. and 5 Rep. Sharpscase. view of the house or Land (I give to you yonder land, to you, and your Heirs, and therefore enter into the same, and take possession thereof accordingly) and the Feoffee doth accordingly in the life of the Feoffor enter; this is a good feoffment for signatio pro traditione habetur. But if either Feoffor or the Feoffee die before the entry, the livery is void. And delivery within the view is good, where there is no deed of feoffment: And such a livery is good, albeit the Land lie in another Countrey.
There is a diversity between the livery of seisin of land, and the delivery of a Deed; for if a man deliver a Deed without saying of any thing, i… is a good delivery; but to a livery of leism of land words are necessary; as taking in his hand the deed, and the ring of the door (if it be an house) or a turf or twig (if it be of land) and the Feoffee laying his hand on it, the Feoffor say to the Feoffee, Here I deliver to you seisin of this house, or of this land, in the name of all the land contained in this Deed, according to the form and effect of the Deed, and if it be without Deed, then the words may be, Here, I deliver you seisin of this house or land, to have and to hold to you for li…e, or to you, and the heirs of your body, or to you, and your heirs for ever. When Ephron infeoffed Abraham of the field of Machpela, he said to him, Agrum trado tibi, I deliver the field to thee. When one makes livery of sesin, this livery shall be taken most strong against him.
And therefore if one give land to a man & haeredibus, this shall be a Fee-simple to him, althoughPlowden …o…thrist against Beinshin. suis be left out, and yet he gives not Fee-simple expressly, but because every livery shall be taken most strongly against him that makes it.