A Philological Commentary, Philological commentary · Part H
H
HARRIOT.
HArriot, in the Saxon tongue is called Hergeat, Cook on Lit. l. 3. cap. 3. sect. 287.that is, the Lords Beast, for Here is Lord, and geat is best.
Harriot is in two sorts.
1. Harriot Custom, where Harriots have been paid time out of mind by custom, and this may be after the death of the Tenant for life. Harriot is the best Beast (whether it be Horse, Ox, or Cow) that the Tenant had at the time of his death.
2. Harriot service, when one holds by such service to pay Harriot at the time of his death, this is payable after the death of the Tenant in Feesimple.
For Herriot service the Lord shall distrain, and for Herriot custom, he shall seise, and not distrain.D. and Student. c. 9
If the Lord purchase part of the Tenancy, herriot service is extinguished, but it is not so in herriotCooks 8 Re. Talbots Case. custom
In 34 Ed. 3. it is holden that if any Tenant wh…ch holdeth of me by a herriot, alien parcell of Land to another, every one is chargeable to me of a herriot, because it is entire, and if the Tenant purchase the Land again, I shall have of him for every portion a herriot.
If the Lord ought to have an Herriot when hisCook on Lit. l. 3 c. 3. p. 185. B. Tenant dieth, and the Tenant deviseth away all his goods, yet the Lord shall have his Herriot, for the Law preferreth the Custom before the devise.
HEIR.
Heir, in the legall understanding of the CommonCook on Lit. lib. 1. cap. 1. sect. 1. Law implyeth that he is ex justis nuptiis procreatus, for haeres legitimus est quem nuptiae de monstrant, and is he to whom Lands, Tenements, or hereditaments, by the Act of God, andHaeres dicitur ab haerendo, quia qui haeres est haeret, id est, proximus est sanguine, illi cujus est haeres. right of blood do descend, of some Estate of Inheritance.
Every Heir is either a Male or a Female, or an Hermophrodite, that is both Male and Female. And an Hermophrodite (which is also called Andr…gynus) shall be Heir, either as Male or Female according to that kind of the sex which doth prevail.
Hermaphrodita, tam masculo quam foeminae comparatur, Id. Ib.secundum proeva 'escentiam serus incalescentis, and accordingly it ought to be baptised.
Haeres est quintuplex.
1. Iure proprietatis, so the eldest Son shall inherit only before all his Brethren.
2. Iure repraesentationis, as where the eldest Sonne dieth, his issue shall inherit before the younger Son, he represents the person of his Father.
3. Iure propinquitatis, as propinquus excludit rem… tum, Cook … Rep. R…t…liff…s Case.& remotus remotiorem.
4. Iure sanguinis, so the daughter of the first vent… shall inherit before the Son of the second.
5. Ratione doni, so the half blood shall inherit, as if a gift be made to one and the Heirs of his body, and he hath issue a son, and a daughter by one venter, and a son by another venter, the Father dies, and the eldest son enters and dies, the young son shall inherit per formam doni, for he claims as heir of the body of the Donee, and not generally as heir of his Brother: otherwise where Land cometh by descent, the rule is possessio fratris de foedo simplici facit sororem esse haeredem, Soror est haeres facta, therefore some act must be done to make her Heir, and the younger Brother is haeres natus, if no Act be done to the contrary.but the Brother ought to be in actual possession of the Fee, and frank-tenement, either by his own possession, or the possession of another to make his sister heir, and the reason is, because of all haereditaments in possession, he which claimeth as Heir, ought to make himself Heir by him that was last actually seised. Id. Ib.
But if the King by his Letters Patents make aCook ubi supra, and on Lit. l. 1. c. 1. sect. 8. Possessio quasi pedis posi…io. Cook l. 7. of R…p. Ca…v. case. and on Lit. l. 1. c. 1. sect. 8. Baron to him and his Heirs, possession in the elder brother of this Dignity cannot make his sister heir, but the brother of the half blood shall inherit, because no possession can be gained of this dignity …er ped is p…sitionem.
In case of the descent of the Crown, the half blood shall mi…erit. So after the decease of King Edward the sixth, the Crown sell to Queen Mary, and from her to Queen Elizabeth, both which were of the half blood, and vet inheri…ed not only the Lands which King Edward, …r Queen Mary purchased, but the antient Lands parcell of the Crown also.
A man that is King by descent of the part of his Mother, purchaseth Land… to him and his hens, and dyeth without issue, this land shall descend to the heir of the part of the Mother, but in case of a Subject, the heir of the part of a father shall have them.
HEREDITAMENT.
Hereditament, is a word much used in Conveyances,Cook Lit. 6. 16. and in grants will pass whatsoever may be inherited, be it corporeall or incorporeall, reall, personall or mixt, and by the grant of hereditament Isles, Charters, Signioryes, Mannours, Houses and Lands of all sorts, Rents, Services, Advowsons, and Commons.
HAERES.
Haeres est pars antecessoris; Therefore if landCook on Lit. l. 1. c. 2. Cook on Lit. l. 1. c. 1. sect. 1. be given to a man and his Heirs, all his Heirs are so totally in him, as he may give the Lands to whom he will; one cannot be heir till the death of his Ancestor; he is called Haeres apparens Heir apparent.
Every Heir having Land, is bound by the bindingSolus Deus facit haeredes. acts of his Ancestors, i… he be named, qui se… ti… commodum sentire debet & incomm…dum sive …nus. Cook on Lit. l. c. 1. sect. 1.
A man by the Common Law cannot be Heir to goods or chattels; for haeres dicitur ab haereditate. If a man buy divers Fishes, as Ca…ps, Bream… ▪ Tenches, and put them into his Pond and dieth; in this case the Heir shall have them, and not the Executors; but they shall go with the Inheritance▪ because they were at liberty and could not be gotten without industry, as by ne…s an: other Engines▪ Cook on Lit. l. 1. c. 1. sect. 1.and otherwise it is if they were in a Trunk. Likewise Deer in a Park, Conies in a Warren, and Doves in a Dove-house, young and old shall go to the Heir.
HOTCHPOT.
Hotchpot, is a medling or mixing together, and a partition of Lands given in frank-marriage, with other Lands in fee-simple descended.
It is an old Saxon word, and signifieth a pudding;Cook on Lit. l. 3. c. 12. sect. 267. and the French use Hotch-pot for a commixtion of divers things together. It signifieth here metaphorically in partem positio; in English we use to say Hodge-podge, in Latin farrago or miscellaneum.
HOMAGE.
Homage is,
1. The most honourable service.
2. The most humble service.
1. On part of the Tenant.Homage, is derived of homo, and is called homage, because when he doth this service, he saith, I become your man, and in English homage is called man-hood; as the man-hood of his Tenant, and the homage of his Tenant is all one. Cook on Little…n ibidem.
1. The Tenant when he doth his homage is dis…inctus, disarmed, because he must never be armed against his Lord.
2. Nudo capite, bare headed.
3. Ad pe… Domini super genua projectus.
4. Amb…s ma…us junctas, inter manus Domini porrigit, which betokeneth reverence and subjection.
5. Per verba omni supplici veneratione plena, he saith, I become your man.
2. On part of the Lord for three causes.
1. The Lord doth sit.
2. He uncloseth his Tenants hands between his own, which betokeneth protection, and defence.
3. The Lord sitting kisseth the Tenant. Cook on Lit. lib. 2. cap. 1. sect. 85.
Glanvill saith women shall not do homage, butCook ubi supra. Littleton saith, that a woman shall do homage, but shall not say, I become your woman, but I do to you homage, and so is Glanvill to be understood, she shall not do compleat homage.
HOMICIDE.
Homicide, is when …ne is slain with a mansCook on Lit. l. 3. c. 8. will, but not with malice prepensed: most properly it is hominis occisi… ab homine facta.
Bracton saith, it is homicide if one strike a woman great with child, so that she miscarry; Si puer perium animatum fuerit, and this agreeth with the Canon and Civil Law, but the contrary is now Law amongst us.
To make it Homicide, it is requisite
1. That the party killed be in esse, viz. in rerum natura, for if a man kill an Infant in his MothersStamf. pl. of Cr. l. 1. and Pulton de pace Regis. Womb, this is no felony, neither shall he forfeit any thing for it, for two Causes.
1. Because the thing had no Name of Baptism.
2. Because it is hard to judg whether the Insant dyed of the Battery or not, or upon some other cause. Fitzherbert puts a stronger case, viz. If a man strike another woman greatBrooks abr. f. 177. and Stamf. with child with two Infants, so that presently after one of them die, and the other was born and baptized, and two daies after, for the hurt that he had received dieth, and yet it was no felony.
But if a woman being delivered of a Child doth presently kill it before it be baptized, this is felony in her, though the Child had no Name of Baptism; because the Child was in rerum natura before it was killed, and it is known byStamford and Pulton▪ whom, and by what means that Child came to his death.
Anno primo Iacobi Regis, c. 8. An Act to restrain suddain killing and stabbing of men done in time of drunkenness, rage, and hidden displeasure. Be it enacted that if any shall siab or thrust any that hath not a weapon drawn, nor hath first stricken, and the party dieth thereof within six moneths, the offender being thereof convicted by verdict of twelve men, confession or otherwise, shall suffer death, as in case of wilfull murder, without benefit of Clergy. This Statute shall not extend to killing, se defendendo, by misfortune or in other manner, then as aforesaid, nor to man-slaughter done in keeping of the Peace, so as it be not wittingly under colour of keeping the Peace, nor to any which in correcting Child or Servant shall beside their intent commit manslaughter, this Statute to continue untill the end of the first Session of the next Parliament, continued 21 Iacobi, cap. 28. & tertio Caroli cap. 4. to the end of the first Session of the next Parliament.
The offender in this case shall have his Clergy, but shall forfeit his goods.
There is Homicide,
1. Of malicious purpose, which we call murder.
2. Upon the suddain, in a heat and fury of mind,Delinquens per iram provocatus puriri debet mitius. The chief reason why seipsum …esen…lendo is not matter of justification, is because Law supposeth it hath a commencement upon an unlawfull cause. which we term man-slaughter.
3. Which we call se defendendo.
4. Per infortunium, homicide of a mans self, whereby the offender is called Felo de se.
Man-slaughter se defendendo, is where two fight together upon a suddain, and before the mortall wound on either party, the one flieth unto the wall or some other place, beyond which he cannot pass, for the safeguard of his life, and the other pursueth him, and he which flieth killeth him that pursueth, this is man-slaughter in his own defence, and the offender in this case shall forfeit his goods.
Quod quis ob tutelam corporis sui ecerit, jure id fecisse videtur.
HOUSE.
House in a house four things are necessary.
1. Habitatio homini….
2. Delectatio inhabitantis.
3. Necessitas luminis.
4. Salubritas aeris.
For hurt made to three of these an Action lieth.
1. Of the habitation of a man, for this is the principall end of a house.
2. For hinderance of his light, for the antient form of an action upon the Case was significant, quòd messuagium horrida tenebritate obscuratum suit. It is said, Vescitur aura aetherea, and the words horrida tenebritate imply the benefit of light, but for a prospect which is a matter only of delight, and not of necessity, no action lies for stopping of this, and yet it is a great commendation of an house, if it have a fair prospect.
Unde dicitur,
Laudaturque domus longos qui prospicit argos.
3. And if stopping of wholsome air be actionable à fortiori, an action lies for corrupting and infecting the air, a lime kill is good and profitable, but if this be erected so near a house that none can inhabit there, for the entring of the smoke an action will lie, prohibetur ne quis faciat in suo quod nocere possit alien….
The house of every one is to him as his Castle and Fortress, as well for his defence against injury and violence, as for his repose, and although that the life of a man be a thing precious and favoured in the Law, so that when a man kills another in his own defence, or per infortunium without any intent, yet this is felony, and in such Cases he shall forfeit his goods and chattels for the great respect that the Law hath to the life of a man. But i… Thieves come to ones house to rob or murder him, and the owner or his servants kill any of the Thieves in defence of him and his house, this is not felony, nor shall he lose any thing. Domus sua cuique est tutissimum refugium.Cook 5 …. of Rep. S… mains Case.
2. When any house is recovered by any reall action or by an Ejectione firmae, the Sheriff may break the house, and deliver seisin or possession to the Demandant or Plaintiff, for the words of the Writ are, Habere facias seisinam, or possessionem, and after Judgment this is not the house in right, and judgment of the Law, of the Tenant or Defendant.
3. In all Cases where the King is party, the Sheriff (if no door be open) may break the house of the party, either to take him or to do other execution of the process of the King, if otherwise he cannot enter in it, but before he break it, he ought to signifie the cause of his coming, and to request him to open the door. For in such Case if he break the house when he may enter without breaking it (that is upon request made, or if he may open the door without breaking it) he is a trespasser.
The preheminence and priviledge that the Law giveth to houses which are for habitation of men is great.
1. A house ought to have the precedency in a praecipe quod reddat, before Lands, Medowes, Pastures, Woods, for ones House is his Castle.
2. The House of a man hath a priviledge toCook 11. Rep. Bowls Case. protect him against an arrest, by force of a process of the Law, at the suit of the Subject.
3. It was resolved that those that dig for saltpeter shall not dig in the mansion house of any Subject, without his assent, for then he nor his wife, nor his Children, cannot be in safety in the night, nor his goods in his House preserved from Thieves.
4. He that kills one which will rob and spoil him in the house shall forfeit nothing.
If a man (hearing that another will fetch him out of his house and beate him) do assemble companyLambert. with force, it will be no unlawfull assembly, for his house is his hold and Castle.
The Kings Officer may break an house for Felony, or suspicion of felony.
1. For the Common-wealth, for it is for the publick good to take Felons.
2. In every Flony the King hath an interest, and where he hath an interest, the Writ is, Non omittas propter aliquam libertatem, the priviledge of the house will not hold against him. Cook 5 Rep. Cases of executions.
For the good of the Common-wealth, an house shall be pulled down, if the next be fired. Judge Doderidge.
HUE.
Hue and Crie is derived of two French words,Cowel Instit. Huyer & Cryer.
In legall understanding Hue and Crie is all one:See Cook's 3 part of Institutes c. 52. In antient Records they are called Hutesium & clamor.
This Hue and Crie may be by Horn and by Voice. He that goeth not at the Commandement of the Sheriff or Constable upon Hue and Crie, shall be grievously fined and imprisoned. Cooks 2 part of his Instit. c. 9.
HUNDRED.Smiths Commonwealth of England.
Hundred, is so called, either because they were at the first an hundred Towns and Villages in each Hundred, or because they did find the King to his Wars an hundred able men.
Between Milborne and the Inhabitants of the Hundred of Dumnow in Essex, it was adjudged, for a robbery done in the morning ante lucem, t…e Hundred shall not be charged, because this robbery was done in the night, for there can be no negligence in them for not keeping the CountryCook 7 Re. Cases on the Statute. Hundredum saepe legas in Anglicorum Regum diplomatibus, & ejus gentis scriptoribus. Significat verò partem comitatus, in qua habitarent centum Regij fide jussores. Explicati us plen… de eo Spelmannus. Vossius. De vitijs Sermonis l. 2. c. 9. in the night, neither can they make pursuit after the Offenders. But if one kill one in a Town in the day, viz. as long as it is full day light, and he which kils him escape the Town where the Felony was, the Town shall be amerced for it, but not if such a Felony or Murder had been done in the night.
In Towns or Cities which are inclosed, the Gates ought to be shut from sunsetting to sun-rising, and if in any such Town or City any murder or man-slaughter be done in the day or in the night, and the Offender escape, such a City or Town shall be amerced.