A Philological Commentary, Philological commentary · Part R
R.
RANSOME.
RAns…me, signifieth properly a summe of money, paid for the redemption of a Captive, and is compounded of re and emo, that is to redeem, or buy again. There is a manifestCook on Lit. l. 2. c. 11. se…t. 194. difference between a ransome and an amerciament. For ransome is ever when the Law infflicteth a corporall punishment by imprisonment, but otherwise it is of an amerciament.
RAPE.
Rape. Raptus is when a man hath carnallCook on Lit. l. 2. c. 11. sect. 190. The offender is called Raptor. Cook ib. Stamford. knowledge of a woman by force, and against her will. But if the woman conceive that is no rape, for she cannot conceive unless she consent.
This word Rape is so appropriated by Law to this case, as without the word ( …apuit) it cannot be expressed by any periphrasis or circumlocution; for carnaliter cognovit eam, or the like will not serve.
One W. D. was arraigned in the Kings Bench upon an Indictment of Rape of a Girl of 7 yearsL. Dye… term. Mich. Annis 13. & 14 Reg. Eliz. p. 304 old, and not above, viz. quod ipsam felonic… rapuit & carnaliter cognovit. He pleaded that he was a Sc…t known and prayeth for his triall per medietatem linguae, and he could not have it; because a Scot is not accounted here for an Alien, but rather a Subiect, and the Scottish Language is meer English. By good evidence of divers grave Women he was found guilty, but the Court doubts of the Rape in so tender years: but if she hadWomans Laws. been nine and over it would have been otherwise. In Bracto…s time Ravishers were thus punished, they lost their eyes and stones, for they calorem stupri induxerunt.
REBOUTER.
Rebouter, is a French word, and is in Latin repellere, to repell or bar; that is in the understandingCook on Lit. l. 3. c. 12. of the Common Law, the Action of the Heir by the warranty of his Ancestor, and this is called to rebut, or repell.
RECORD.
Record, is derived of recorder to remember, as the Poet saith, si ritè audita recorder, if a Record once say the word, no man shall be received to averr or speak against it, or impugne the same, no, though such record contain a manifest or known falsehood, tending to the mischief, and overthrow of any person.
The Records are vetustatis & veritatis vestigia, Cook pret. to 8th Rep.the lively representations of time and truth, and reputed the Treasures of the Kingdom.
The Kings excellency is so high in theDr. & Stu. c. S. Law, that no Frce-hold may be given to the King, nor derived from him but by matter of Record.
A Record or sufficient matter in writing areCook on Lit. l. 2. c. 10. sect. 170. good memorials, for litera scripta manet. And therefore it is said when we will by a…y Record or Writing commit the memory of any thing to posterity, it is said tradare memoriae. And this is the reason that regularly a man cannot prescribe or alledge a custom against a Statute, because that is matter of Record.
Record is a memoriall or remembrance in Rolls of Parchment, of the Proceedings and Acts of a Court of Justice, which hath power to hold plea according to the course of the Common Law, of reall or m…xt actions, or of actions quare vi & armis, or of such personall actions, whereof the debt or dammage amounts to forty shillings or above, which we call Courts of Record, and are created by Parliament, Letters Patents, or prescription, legally Records are rostrained toCook on Lit. l. 3. c. 7. s…t. 431. & l. 2. c. 1 … sect. 175. the Rolls of such only as are Courts of Record, and not Rolls of inferiour, nor of any other Courts which proceed not secundum legem & consuetudinem angliae, and the Rolls being the Records or memorials of the Judges of the Courts of Record,) import in them such incontrolable credit and verity, as they admit no averment, plea or proof to the contrary. And if such a record be alledged, and it is pleaded that there is no such record, it shall be tried only by it self, and not by witness or Jury.
REGISTER.
Register, is the name of a most antient Book,Cook on Lit. l. 2. c. 3. sect. 101. &c. 12. and of great authority in Law, containing all the originall Writs of the Common Law: It is twofold, viz. Registrum brevium originalium, & registrum brevium Iudicalium, it is a French word and signifieth a memoriall of Writs.
RELATION.
Relation, is a species of fictions in Law, making a thing done at one time to be accepted, reverted, and as it were repuld, or to have its operation as is it had been done at another time, past verbi gratiâ. A. doth bargain, and sell Lands to B. in August by Indenture, which is not inrolled untill Oct. following, yet this hath such relation to the date of the Indenture, that if A. offer that, and before the inrolment become bound in a statute or grant a Rents charge, or make a Lease for years, or take a Wise, or committed felony, yet shall none of these be of any force to charge or prejudice the state of B. for that the Law judgeth him now owner by relation, as from the time of the date, yet if a servant depart in August, for some great breach with his Master, do kill his Master in October, this is in Law petty treason, as if he had continued servant when he did the fact, because it relates to the malice concerned, when he was his servant.
RELEASE.
Release, is the giving or discharging of the rightCooks 10 Rep. Hampets case. or action which any hath or claimeth against another, or his Land, Laxare is properly to put Prisoners in setters at liberty, and relaxare is to do this often, and metaphoricè relaxare is to put at liberty settered estates and interests, and to make them absolute.
RELIEF.
Relief, as in antient time the Senatours of Rome Relevium is derived from the Latin word relevari, quia haereditas quae jacens fuit per ante cessoris decessum relevatur in manus haeredum. Cook on Lit. & Minshew in Domesday it is called relevamentum & relevatio. Cooks 7th Rep. Nevils case, and on Li…. Relevium ut Ho…omanus describit, est honorarium, quod novus vassallus patrono largitur introitus caussa, nomen ex eo, quia morte vassalli, ut vassallus cecidit, siccum eo cecidit seudum, & propterea denuo oporteat relevari, hoc est, attolli. Itaque non relevium modo sed & relevatio vocatur. Vossius De vitiis Sermonis lib. 3. cap. 42.were elected à censu of their Revenues, so here in antient time, in conserring of Nobility respect was had to their Revenues, by which their Dignity and Nobility may be supported and maintained, and so a Knight ought to have 20 li. per annum, a Baron 13 Knights Fees, and a quarter, an Earls 20 Knights Fees, and alwaies the fourth part of such Revenue which is requisite, by the Law to the Dignity shall be payed to the King for Relief, as the relief of a Knight is 5 ll. which is the 4th part of 20 ll. the revenue of a Knight, and the relief of a Baron is at 100 Marks which is the 4th part of his revenue, viz. 400 Marks, and includeth 13 Knights fees; and a quarter; and the relief of an Earl is a 100 ll. which is the 4th part of 400 of ll. his revenue: the Relief of a Marquess 200 Marks, his revenue being 800 Marks: the relief of a Duke shall amount to 200 ll. and by consequent his revenue ought to be 800 ll. per annum; for every one of the Nobility is presumed in the Law to have sufficient Frank-tenement ad sustinendum nomen & onus.
REMAINDER.
Remainder, is a remnant of the estate of theCook on Lit. l. 1. c. 7. sect. 60. & l. 4. c. 12. sect. 215. Grantor, or a residue of an estate in Lands depending upon a particular estate, and created together with the same; and in Law Latin it is called remanere.
There is a diversity between a Remainder limited by particular name, and by a generall name. For a Remainder limited by generall nameCooks first Rep. Hugh Cholmleys case. may be good, although the person be not in esse at the time of the remainder limited; as if a Lease for life be made the Remainder to the right Heirs of I. and S. which is alive, this Remainder may be good, and yet he hath no Heir at the time of the Remainder limited, the same Law is of a Remainder primo genito filio, but a Remainder limited in particular, by name of Baptism and sirname is not good if the person be not in esse.
If the person that is to take the Remainder be not in rerum natura, as if a Lease for life be made the Remainder to the right Heirs of I. S. I. S. being then alive, it sufficeth that the InheritanceCook on Lit. l. 3. c. 13. sect. 721. passeth presently out of the Lessor, but cannot rest in the Heir of I. a St. For that living his Father he is not in reram natura, for non est haeres viventis: so as the Remainder is good upon the contingent, viz. if I. S. die during the life of the Lessee.
Remainder is a residue of the estate at the same time appointed over: Reversion is a residue of the estate not at the same time appointed over: reversion is ad Dominum aut ejus haeredes unde jus primo derivatur Remainder ad tertium aliquem qui neque Dominus neque tenens in praesente est.
REMITTES.
Remitter, a French word, it signifieth to restore,Doderidge. and importeth a restitution of Possession unto a man antient right. It is derived of the Latin verb reomittere, which hath two significations,Cook on Lit. l. 3. c. 12. either to restore, and set up again, or to cease.
RENTS.
Rents, Rent paid yearly for Land, or otherCooks Rep. l. 10. & on Lit. l. 2. c. 12. Doderidge. things, is call'd in Latin Reditus a reddendo, because it is yearly yeelded or restored for the Lands, rather à redeundo quia retr… it: because it doth return to the Lessor or Donor, for the issues and profits of the Land, and in English it is called a Rent, the French word rentor, to rate or assess a price. Tenure by Rents is called vivi reditus, Cook on Lit.because the Lords and the owners thereof do live by them.
A feme sole Lessee for life rendring Rent, takes a Husband, the Rent arere, the Wife dieth though here be no recovery in the Wives life time, yet becauseWom. Law. the Baron took the profit, he is still chargeable in a Writ of debt for the Rent, for qui sentit commodum sentire debet & onus.
For Rent payable at a day, the party hath all the day till night to pay it, but i… it be a great summeCooks 5th Rep. Wades case. as five hundred, or a 1000 ll. He must be ready as long before the Sun-set, as the money may be told: for the other is not bound to tell it in the night.
REPLEVIN.
Replevin, is derived of replegiare, to redeliverCook on Lit. l. 2. c. 12▪ Lambert. to the owner upon pledges or surety: It had its originall of the word pledges, which denoteth them that undertake for the party, that he shall abide to be justified by the Law.
Goods may be replevied two manner of waies, viz. by Writ, and that is by the Common Law,Cook on Lit. l. 2. c. 12. sect. 219. Replegiare est reposcere bona mobilia dato apud praefectum vade sive fide jussore. Sane & Anglis breve, per quod bona ea reposcerent to replevin, quasi replegium dicitur sunt verò replegium & replegiare à plegius, vel plegium. Plegius vas, sive fidei jussor. Vossius De Vitiis Sermonis. l. 2. c. 25. or by the pleinte, and that is by the Statutes for the more speedy having a gain of their Cattell, and Goods. Replegiare is compounded of re and plegiare, that is to redeliver upon pledge or Sureties.
RESCEIT.
Resceit, is in the Civil Law called Admissio tertiae persone pro interesse, in our Law when one is sued whose estate is so weak that he cannot defend full Suit, then is another who is better able admitted up payer; sometimes Receit i… sur Receit, this is against rule) as, A Wife being Tenant for life is received upon the default of her Husband, and after makes default he in reversion2 p. of Instit. fol. 345 shall be received; so if baron and feme be received, and after baron make default the feme shall be received.
RESCOUS.
Rescous. It is an antient French word, coming from rescourrer, that is, recuperare to take from, toCook on Lit. l. 2. c. 12. sect. 237. rescue, or recover Rescous is a taking away, and setting …at liberty against Law, a distress taken, or a Parson arrested by the process or course of the Law. There is a Rescous indeed, and a Rescous in Law: of the first hath been spoken. A Rescous in Law is when a man hath taken in distress, and the Cattell distreined, as he is driving of them to the Pound, to go into the house of the owner, if he that took the distress demand them of the owner, and he deliver them not, this is a Rescous in Law.
RESERVATION.
Reservation, cometh of the Latin reservo, that is to provide for store. As when a man departeth with his land, he reserveth or provideth for himself a Rent for his own lively-hood. And sometime it hath the force of saving or excepting; so as sometime it serveth to reserve a new thing, viz. a rent, and sometime to except part of the thing in esse, that is granted.
RETRAXIT.
Retraxit, is so called, because that word is the effectuall word in the entry. The difference between a non-suit and a retraxit, is ever when the Demandant or Plaintiff is present in Court. A non-suit is ever upon a demand made, when theCook on Lit. l. 2. c. 11. sect. 288. Demandant▪ or Plaintiff should appear, and he makes default. A retraxit is a barre of all other actions, of like or inferiour nature. Q… semel actionem renunciavit amplius repetere non potest. But regularly non-suit is not so, but that he may commence an action of like nature again. For it may be that he hath mistaken somewhat in that action, or was not provided of his proofs, or mistook the day, or like.
REVERSION.
Reversion, it hath a double acception in our Law, the one is, jus revertendi cum status possessionis defecerit: and this is but an interest in theIt cometh of the Latin word revertor, and signifieth a returning again, therefore reversio terrae est tanquam terra revertens in possessione donatori sive h…redibus suis post donum finitum. Cook on Lit. Land when the occupation and possession of it shall fall, and so it is commonly taken. 2. When the possession and estate which was parted for a time ceaseth, and is determined in the persons of the aliens, assignees, grantees, or their Heirs, and shall effectually return to the Donor, his heirs or assignees whence it was derived. This is the most apt and proper signification of the word, which is nomen verbale, and derived of the verb revertor, & aptè dici non potest reversio; antequam revertatur in facto.
A reversion is where the residue of the estate alwaies doth continue in him that made the particular estate, or where the particular estate is derived out of his estate. Cook on Lit. l. 1. c. 2. sect. 19.
RIGHT.
Right. Ius or right in generall signification includeth not only a …ight for the which a writCook on Lit. l. 3. c. 8. sect 445. of Right doth lie, but also any title or claim either by force of a condition, Mo…ain or the like, for the which no Action is given by Law, but only an entry.
There is Ius proprietatis a right of ownership: Ius p…ssessionis, a …ight of seis… or possession: and Ius proprietatis & possessionis; a right both of property and possession; and this is antiently called Ius duplicatum. For example, if a man be disseised of an Acre of Land, the Disseisee hathId. ib. sect. 447. Ius proprietatis, the Disseisor hath Ius possessionis, and if the Disseisee release to the Disseisor, he hath Ius proprietatis, & possessionis dormit aliquando Ius, moritur nunquam: for of such an high estimationId. ib. sect. 478. is right in the eye of the Law, as the Law preserveth it from death and destruction, troden down it may be, but never troden out.
Ius sive Rectum, signifieth properly and specially in Writs and in Pleas when an Estate is turned to a right, as by a discontinuance, dissesin, where it shall be said, quod Ius descendit & non terra. But Right (also) doth include the Estate in esse in conveyances; and therefore ifId. ib. c. 11. sect. 650. the Tenant in Fee-simple make a Lease for years, and release all his right in the Land to the Lessee and his Heirs, the whole estate in Fee-simple passeth.
Ius est sextuplex: 1. Ius recuperandi: 2. Intandi: Cook l. 8. Rep. Edw. Althams case. Cook on Lit. l. 3. sect. 50.3. Habendi: 4. Retinendi: 5. Percipiendi: 6. Possidendi.
RIOT.
Riot, is where three (at the least) or more do some unlawfull Act, it comes from the French word riottor, id est, rixari, scold or brawle.
ROBBERY.
Robbery, is so called, because Goods are takenEither because they bereaved the true man of some of his robes or garments, or because his money or goods were taken …ut of some part of his garment, or robe about his person. Sir Edward Cook's 3d parto… Instit. Ch. 16. as it were de la robe, from the robe, that is from the person. It is when a man taketh any thing from the person, or out of the possession of another seloniously.
A Robbery was done in Ianuary after the Sunsetting, during twilight, and it was adjudged that the Hundred should answer for it, because it was convenient time for men to travell, or be about their works or businesses, and with this accordsCook 7th Rep. Ashpooles case. the Book in 3. Edw. 3. tit coronne 293. that if one kill another at the hour of the Evening and escape, by the Common Law the Town shall be amerced, for this is counted in the Law part▪ of the day.
A man in time of Divine service upon the Sabbath Day was rob'd, Mountague Chief Justice was of opinion that the Hundred should not be charg'd, but Doderidge, Sir Iohn Crook, and Hawtain Justices, were of contrary opinion, that the Hundred should be charged, and so it was adjudged termino Michaelis.
Although the thing so taken be not to the value but of a penny, yet it is felony for which the offender shall suffer death, and shall not have theStamford Dr. & Stu. benefit of his Clergy, not so much for the value of the goods taken, as for terrifying the party robbed, a putting him in dread and fear of his life.
He that robbeth any dwelling house, or outhouse39 Eliz. 15. c. belonging to it in the day time, of the value of 5 s. whether it be money, goods or ca…tels shall not have his Clergy.
If a Bailiff of a Mannor, or a receiver, or a Factor of a Merchant, or the like accountant be robbed, he shall be discharged thereof upon hisCook 4th Rep. Southcots case. 83. B. & on Lit. l. 2. c. 5. sect. 123. account. But otherwise it is of a Carrier, for he hath his Hire, and thereby implicitely undertaketh the safe delivery of the goods delivered to him, and therefore he shall answer the value of them if he be robbed of them. So if goods be delivered to a man to be safely kept, and after those goods are stollen from him, this shall not excuse him, because by the acceptance he undertook to keep them safely, and therefore he must keep them at his perill. So it is if goods be delivered to one to be kept; for to be kept and to be safely kept is all one in Law: but if goods be delivered to him to be kept as he would keep his own, there if they be stollen from him withoutId. ib. his default or negligence, he shall be discharged. So if goods be delivered to one as a gage or pledge, and they be stollen he shall be discharged, because he hath a property in them, and therefore he ought to keep them no otherwise then his own: but if he that gaged them tendred the money before the stealing, and the other refused to deliver them, then for this default in him he shall be charged. If A. leave a Chest locked with B. to be kept, and taketh away the Key with him, and acquainteth not B. what is in the Chest, and the Chest together with the goods of B. are stollen away, B. shall not be charged therewith, because A. did not trust B. with them as th…s case is.
ROGUE.
Rogue. This word is but a late guest in our Law, for the Elder Statutes call such a one a vu…an… strong or sturdy Begger and Vag…bond, and it seemeth to be se…ched from the Latin R… galor, an asker or Beggar, or the French, Rogue …d est arrogans.
ROUT.
Rout, is so called, because they do move andFrom the French word …ou…e id est, turma. proceed in routs and numbers. The difference …etwixt an unlawfull assembly, a rout and riot, …s this, when three or more do meet to do an un…awfull act, this is an unlawfull Assembly, when they move being weaponed from the place of their meeting, towards the place where they purpose to do an unlawfull act, (though they do it not) this is a Rout. When with unlawfull weapons, they do an unlawfull act, this is a Riot. An unlawfull Assembly may well be called an Introduction, a Rout, a Persecution, and a Riot, an Execution.