A Philological Commentary, Philological commentary · Part O
O.
OATH.
AN Oath is an affirmation or denyal by any Christian of any thing lawfull and honest, be ore one or more, that have authority to give the same for advancement of truth and right, call…ng Almighty God to witness that his testimony is true. It is called a corporall Oath, because he toucheth with his hand some part of the Holy Scripture. Cook's 3 part of Instit. c. 74.
The Law esteems it the best means to search outSee more in Cook's 3 part of Institutes c. 74. the truth, by the Oaths of honest lawfull and indifferent persons, as God shall help him, that is, as he will expect the blessing of God in this life, and eternal salvation in the life to come: therefore an Oath is aptly termed Sacramentum, an holy band, or sacred tie, or godly vow: some do call it Firmamentum Pulton de pace Regis & regni.veritatis, the foundation and ground of truth: and some vinculum pacis, and if it be taken and sound by a whole Jury, consisting upon twelve persons or above, it is called Veredictum, viz. a presentment of truth.
OBLIGATION.
Obligation, is a word of his own nature of large extent, but it is commonly taken in the Common Law, for a Bond containing a penalty with ConditionCook on Lit. l. 3. c. 1. sect. 259. for payment of Money, or to do, or suffer any act or thing, and a Bill is most commonly taken for a single Bond without Condition.
If a man be bound i… an Obligation with Condition, that if the Obligor do go from theCook on Lit. l 3. c. 5. Church of St. Pet. in We…tmi…ster, to the Church of St. Pet. in Rome within three hours, that th…n that Obligation shall be void: the Condition is void, and im…o…ble. If a man be bound to pay 20 pound a… any time at a place certain, the O… ligoCook on Lit. l. …. c. 5. sest. 34…. cannot tender the Money at the place when he will, … then the Obligee should be bound to perpetuall a… …ince, and therefore the Obligor in …e…p… o… the … of the time must give the Ob…ige… … that on such a day at the place limited he wil… pay the Money, and then the Obligee must attend there to receive it; for if the Obligor pay the money. He shall save the penalty of the Bond … …ve….
Wher… a man is bound to pay 1… li. at such a day and place, i… the Obligee accept a le…s summe at the same day and place, this appears to the Court to be no … of the greate, but acceptanceCooks 5th Rep Pinness cas…. of the les… at a day before it is d…e, or at another place, or of some other thing (as of an horse) may be a s…sfaction
When any act to be done by condition, is to be done by the sole act, or labour, or industry of a stranger, which act in no manner concerns the Obligo…, Obligee, or any other person, and no time is limited when this shall be done, it sufficeth the Obligor, if the act be done in the life of him which ought to do this, as if I am obligedCooks 6th Rep. Both…es case, to you on condition, that I. S. shall go to Rome or Ierusalem, or that such a Student in Divinity at the University shall preach at Pauls, or in the Law, shall argue the matter in Law in Westminster Ha…l, in these cases no time being limited, they have time to do it during their lives.
OCCUPATION.
Occupation, is a word of Art, and signifieth a putting out of a mans Free-hold in time of warre,Cook on Lit. …. 3. c. …. …. 41…. and it is all one with a disseinsin in time of peace, saving that it is not so dangerous.
OFFICE.Cooks 11th Rep. Curles case.
Office. If an Office be granted to two protermino vitarum suarum, by the death of one of them the grant shall be void; for being an O…ce of trust there shall be no survivour of it. … i… it be expressly granted to two, & di…tius …um …i…enti, the survivour shall have it.
Officia Iudicialia non c…nceda…tur a…te …am … cent: Id. ib.Judicial Offices cannot be granted in reversion, but ministerial may.
By the Law of England it is provided that noAnno 12. R. 2. c 2. Officer or minister of the King shall be ordained or made for any gift or brocage, favour or affection; nor that any which pursueth by him, or any otherCook on …it. l. 3. c. 5. sect. 3…. privily or openly to be in any manner of Office, shall be put in the same Office or in any other, but that all such Officers shall be made of the best, and most lawfull men, and …. A Law worthy to be written in Letters of gold, but more worthy to be put in due execution.
An Office of skill and diligence, or annuity pro concilio impendendo, cannot be forfeited by attainder of treason. The King granteth an Office to one at will, and 10 li. …ee during li…e pro officio illo: now if the King put him from this Office, the …ee shall cease.
The Officer or Minister of Law in the executionCook 9th Rep. Mackallyes case. of his Office, if he be resisted or assaulted, is not bound to fly to the wall (as other Subiects are) for Legis minister non tenetur in execution… officii fugere seu retrocedere.
If a Justice of the Common Place be made Justice of the Kings Bench, though it be but hac vice, itCook on Lit. determineth his Patent of the Common Place; for if he should be Judg of both Benches together, he should controll his own judgment: for if the common place erre, it shall be reformed in the Kings Bench. But a man may be Justice of the Common Pleas, and Chief Baron of the Exchequer simul & se…el.
These words colore officii are alwaies taken in malam partem, and vary from these words virtute officii, or ratione officii, which are alwaies taken in bonam …a…tem, and imply that the Office is the just cause of the thing and the thing is pursuing the Office: but the other words signifie an act ill donePloydens Commentaries & Manninghams case. by pretence and countenance o… the Office, and it carrieth the counterseit shew of duty, and the act it self hath a proper name, and is called Extortion. As if an Officer will take more for his fees then he ought, this is done col…re officii sui, but yet it is not part of his Office, and it is called Extortion, which is no other then robbery; nay more hatefull, in as much as the other is apparent, and hath the visor o… vice▪ but this appeareth under the visage of virtue, and so is more hard to be avoided, and by so much the more detestable.
OXGAUGE.
Oxgauge, or oxgate, Bo…a…a ter…ae, a word muchPlo. Com. 168. used in our old Books, and is as much land as an Ox can till, by the grant of an Oxgauge of land may pass Medow and Pasture.
ORDINARY.
Ordinary, is he that hath Ordinary jurisdiction in causes Ecclesiasticall, immediate to the King andCook on Lit. l. 3. c. 11. sect. 641. his Courts of Common Law for the better execution of Justice; as the Bishop or any other that hath exempt and immediate jurisdiction in causes Ecclesiasticall.
It is derived ab ordine, to put him in mind of the duty of his place, and o… that order and Office that he is called unto. Cook's 2 part of Institutes c. 19. See more there.
ORDAEL ORDALIUM.
Ordael ordalium, in the Saxon language ordael,Ordalium Sax…nibus & Anglis, dicebatur probatio per aquam gelidam vel …ervidam, aut candens ferrum. …andentium vomerum judicium subjit summa mater Regis Edvardi Confessoris. Vossius De vitijs Sermonis l. 12. c. 14. which is as much to say, as Expers criminis, for or in that language is privative, and del is part, that is, not party, or not guilty Cook l. 9. de Strata Marcella..
Or signifies right. deale part (say some) whereof they had these kinds: or deal by fire which was for the better sort, and by water for the interiour. That of fire was to go blind…old over certain plough-shares made red hot, and layed an uneven distance one from another▪ that of water was either of hot, or cold, in the one to put their arms to the elbow, in the other to be cast head-long.
OUTLAWRIE.
Outlawrie, is the loss or deprivation of the benefit belonging to a Subject, that is of the Kings protection and the Realm. Heretofore none couldDictus Utlagatus quasi extra legem positus. be out-lawed but for felony, the punishment whereof was death, but now the Law is changed. An out-lawed man had then caput lupin…m, because he might be put to death by any man, as a Wol… that hatefull heast might.