A Philological Commentary, Philological commentary · Part I – Part K
I.
IDEOT.
IDeot, the words of the Statute be, Rex habebit custodiam ter…rum fatuorum naturalium, byStamf. prae. r…g. Reg. …. 9 which it appeareth that he must be a fool naturall, that is a fool à nativitate, for if he were once wise, and became a fool by chance or misfortune, the King shall not have the custody of him.
The King is Protector of all his Subjects, and of all their goods, Lands and Tenements, and therefore such as cannot govern themselves, nor orderFitz. N. b. fol. 232. their Lands and Tenements, his Grace (as a father) must take upon him to provide for them, that they themselves, and their things may be preserved.
Ideot, is a Greek word, and properly signifieth a private man, which hath not any publick Office.Cook 4 Rep. Beverlies Case. Fitz. Herb. H …. brev. p. 233. Amongst the Latins it is taken for illitera…us, imperitus, amongst our Lawyers, for non compos mentis, in our common English speech, called a natural fool. Fatuus à fando, quia inepta loquitur. If one have so much understanding, as he can measure a yard of cloth, number twenty pence or rightly name the dayes in the week, orT…m. of Law. beget a child, son or daughter, he that can do so, shall not be accounted an Ideot or natural fool by the Law… of the Realm.Stamf. Prae. r…g. Reg. c. 9 Cook 4 Rep. Beverlies Case.
An Ideot naturall in an Action brought against him, shall appear in his proper person, but he who is become non compos mentis, shall appear by his Guardian, if he be of full age.
IETSAM.
Ietsam, is when a Ship is in pe…ill to be drowned, and to disburden the Ship, the Mariners cast the goods into the Sea; In cometh of the French word Ietter, to cast ou…; and sometimes signifieth the Admirals prescription▪ and sometimes the thing cast out of the Ship, and prescribed in.
IGNORANCE.
Ignorance, There is a difference in the Law betweenPlowd. Cominent. p. anu. E. 6. Reniger against Fogassa. ignorantia and ignoranter. Such an Act is properly said to be done ex ignorantia, where involuntary ignorance is the cause of it, as if a child or mad man kill a man, but if a drunkard kill a man, this act is said to be done ignoranter, but he is the cause of his own ignorance.
IMPRISONMENT.
Imprisonment, is the putting of any person from his own liberty, into the custody of the Law, to answer to that which is objected; and thereforeLamb. Iust▪ of Peace. to break the prison is to fly from the tryal of the Law, and is adjudged a publick Felony, if he were imprisoned for felony, otherwise not, as the stat. de frangent. prisonam. Out of this one fact, there groweth sometime a treble offence and selony, viz. Id. ib.1. In the prisoner himself, which is most properly called the breaking of prison. 2. Another in him that helpeth the prisoner to get away, which is commonly termed Rescuss. 3. A third, in the Officer or party whatsoever, by whose wilfull default he is suffered to go; and that is termed an escape.
A man imprisoned by process of Law, ought to be kept in salva & arcta custodia, and by the Law ought not to go out though it be with a Keeper, and with the leave and sufferance of the Gaoler;Cook on Lit. l. 3. c. 7. sect. 438. but yet imprisonment must be custodia non poena, for carcer ad homines custodiendos, non ad puniendos dari debet.
He which is imprisoned by Judgment of the Law, ought to be kept in salva & arcta custodia, salva because he ought to be in a prisonCook. Lechfords Case. 8 Rep. so strong, that he cannot escape, and arcta in respect that he ought to be kept close without conference with others, or intelligence of things at large.
INCIDENT.
Incident, is a thing appertaining to or following another, as a more worthier principall: The incident shall pass by the grant of the principall, but not the principall by grant of the incident. Accessorium non ducit, sed sequitur suum principale.Cook on Lit. l. 2. c. 12.
Incidents are,
1. Separable, as rents incident to reversions, which may be severed.
2. Inseparable, as fealty to a reversion or TenureId. l. 2. c. 5.
INCUMBENT.
Incumbent, cometh of the verb incumbo, that is to be diligently resident, and when it is writtenCook on Lit. l. 2. c. 11. sect. 180. encumbent, it is falsly written, for it ought to be incumbent, and therefore the Law doth intend him to be resident on his Benefice.
INDUCTION.
Induction, The Arch-deacon is to put in the Minister in possession by delivering the Ring of the Church-door unto him, and ringing of Bel…, which is called an Induction, and that being done, the party becometh an incumbent.
A man having a Benefice with Cure, at the value of ten pounds or more, receives another Benefice with Cure, and is inducted into this new; the first is void, ac si esset per mortem & resignationem, by Statute 21 Hen. 8. L. Dyer. The Statute is of the yearly value of eight pound.
INDENTED.
Indented, It cannot be a Deed indented, unless it be actually indented; for albeit the words of the Deed be haec indentura; yet if it be not indented, indeed it is no Indenture; but if the Deed be indented, albeit the words of the Deed be not haec Cook on Lit. l. 2. c. 12. sect. 217. & l. 3. c. 5. sect. 370.indentura, yet it is an Indenture.
Deeds indented are called by severall Names, as Scriptum indentatum, charta indentata, indentura, literae indentatae. An Indenture is a Writing containing a Conveyance, Bargain, Contract, Covenants or Argreements between two or more; and is indented in the top or side answerable to anotherCowels Instit. Iur. Angl. that comprehendeth the self-same matter. It is called an Indenture, because each part in the top or side, Similiter scinditur in morem dentium, ut pares esse cognoscantur.
INFANT.
Infant, An Infant of eight years age or above, may commit Homicide, and shall be hanged for it, viz. If it may appear (by hining of the …person slain, by excusing, or by any other act) that he had knowledg of good and evil, and of the danger of the offence; for here malitia supplebit aetatem. Yet Cook upon Littleton sect. 405. saith, That an Infant shall not be punished untill the age of fourteen, viz. the age of discretion.
Before the age of one and twenty years a manCook on Lit. lib. 1. c. 21. & l. 2. c. 28. or woman is called an Infant in the Law.
INHERITANCE.
Inheritance, A man may have an Inheritance in title of Nobility and Dignity three manner of waies; that is, 1. by creation, 2. by descent, 3. and by prescription: by creation two manner of ordinary waies, 1. by Writ, 2. and Letters Patents. Creation by Writ is the antienter way; yet that by Letters Patents is the surer. If he be generally calledCook on Lit. l. 1. c. 1. sect. 9. by Writ to the Parliament, he hath a Fee-simple in the Barony without words of Inheritance. But if he be created by Letters Patents, the state of Inheritance must be limited by apt words, or else the Grant is void: But a man must not only have the Writ delivered to him, but sit in Parliament, to make him noble that way; and thereupon a Baron is called a Peer of Parliament: Therefore a Duke, Earl, &c. of another Kingdom are not to be sued by these Names here, for they are not Peers of our Parliament.
Some have an Inheritance, and have it neither by descent, nor properly by purchase, but by creation; as when the King doth create any man a Duke, a Marquess, Earl, Viscount, or BaronId. ib. to him and his Heirs, or to the Heirs Males of his body, he hath an Inheritance therein by creation.
INNE.
Inne, Common Inns are instituted for passengers and wayfaring men, for the Latin word for an Inne is diversorium, because he that lodgeth there est quasi divertens se à via, and therefore if a neighbour which is not a traveller, as a friend at the request of the Inkeeper lodge there, and his goods are stolen, he shall not have an Action, for the Writ is, ad hospitandos homines per partes, Cook 8 Rep. Calyes Case.ubi hujusmodi hospitia existunt, transeuntes, & in isdem hospitantes. The Innekeeper shall answer for not…ing, which is out of his Inne, but only for those things which are infra hospitium, the words are eorum bona, & catalla infra hospitia ida existentia, and therefore the Horse which at the request of the owner is put to pasture, being not infra hospitium, the Innekeeper is not bound by the Law, to answer for him, if he be stolen, but if the owner require not this, but the Innekeeper of his own head puts the Horse of his Guest to the pasture, he shall answer for him if he be stolen, Hospes est, quasi hospitium petens. The host shall not be charged except there be some default in him or his servants. The words are ita quod per desectum hospitatorum, seu servientium s…orum, hospitibus hujusmodi damni non eveniat, and although the guest deliver not the goods to the Host to keep, nor acquaint him with them, yet if they be stollen, the Host shall be charged, but if the servant of the guest, or he which comes with him, or he which desires to be lodged with him, steal his goods, the Host shall not be charged, for it was the fault of the guest to have such a companion or servant, but if the Host appoint one to lodge with another, he shall answer for him, as appears.
The Hostler requires his guest to put his goods in such a chamber, under lock and key, and then he will warrant them, otherwise not, the guest suffersCook ubi supra. them to be in outward Court, where they were …tolen, the Host shall not be charged for the fault …hat is in the guest.
If one bring a bag or chest of Evidences or Ob…gations into an Inne, and they be stolen through …e default of the Host, the Innekeeper shall an…wer for them.
If a man lodg with any (which is not an Innekeeper, upon request, and he be robbed in his house, by his servants, which lodgeth him or any other, he shall not answer for it, for the words of the Writ are hospitatores qui communia hospitia Tenent.
Anno 21 Iacobi, Any person whatsoever foundProof of one witness sufficient. See the Statute primo Car…li c. 4. tipling in any Inne or Alehouse, to be adiudged within the compass of the Statutes against drunkenness.
An Alehouse-keeper convict of offence against the Statute, to be disabled to keep an Alehouse for three years after.
INSTITUTION.
Institution, is when the Bishop saith, Institu… Cook on Lit.te rectorem talis Ecclesiae, cum cura animarum, & accipe curam tuam & meam.
Every Rectory consists of a spiritualty, and temporalty, and as for the spiritualty, viz. cura Cook 4 Rep. Digbies case.animarum, he is a compleat Parson by Insti…ution, but as for the temporalties, as the glebe land, he hath no Frank-tenement in them, till Induction.
INTRUSION.
Intrusion, properly is when the Ancestor died of any estate of Inheritance expectant upon anCook on Lit. l. 3. c. 8. sect. 475. estate for life, and then Tenant for life dieth, and between the death and entry of the heir, a stranger doth interpose himself, and intrude.
IOINTTENANTS.
Iiont-tenants, are so called, because Lands or Tenements are conveyed to them joyntly, conjuncti… feossati, or qui conjunctim tenent, and are distinguished from sole or severall Tenants, from Parceners, and from Tenants in common, and ancientlyCook on Lit. l. 3 c. 3. sect. 277. they were called participes, and non haeredes. And these joynt-tenants must joyntly implead, and joyntly be impleaded by others, which property is common between them and coparceners, but joynt-tenants have a sole quality of survivorship, which coparceners have not. Survivourship is not proper to them quarto modo, for there may be joynt-tenants, though there be notId. ib. sect. 280. equall benefit of survivour on both sides. As if a man letteth Lands to A and B. during the life of A. If B. dieth, A. shall have all by the Survivour, but if A. dieth, B. shall have nothing.
If one joynt-tenant should have more profit then another, the society should be Leonina, rather the devouring of Lions, then the dividing of men, or according to the Proverb, a man should divide honey with a Bear.
IOINTURE.
Iointure, it is so called, either because it is granted ratione juncturae in matrimonio, or becauseCook l. 3. Rep. Marquess of Winchesters Case. the Land in Frank-marriage is given joyntly to the Husband and Wife, and after to the heirs of their bodies, whereby the Husband and the Wise be made joynt-tenants during the Coverture.
IUDGES.
Iudges, All their Commissions are bounded with this express limitation, Facturi quod ad justitiam pertinet secundum legem & consuetudinem Angliae.
The Judge at his creation takes an Oath, that he shall indifferently minister justice to all men,Fortescue … de laudibus legum Angliae. as well foes as friends, that shall have any suit or plea before him, and this shall he not forbear to do, though the King by his Letters, or by express word of mouth should command the contrary. He shall also swear that from that time forward, he shall not receive or take any Fee or pension, of any man but of the King only, nor any gift, reward, or bribe of any man having suit or plea before him, saving meat and drink, which shall be of no great value.
It is a Maxim in the Law, Aliquis non debet esse jadex in propria causa.
Henry the fourth of that name, when his eldest Son the Prince was by the Lord Chief Justice, for some great misdemeanours, commanded and committed to prison, he thanked God that he had both a Son of that obedience, and a Judge so unpartiall, and of such undaunted courage.
Fortescue speaketh of a Judge complaining of a judgment given against a Gentlewoman of Salisbury, De laudibus leg. Ang. 53. c.who being accused by her own man, without any other proof, for murdering her Husband was thereupon condemned and burnt to ashes: the man who accused her being within a year after convict for the same offence, confest that his Mistris was altogether innocent of that cruell fact, whose terrible death he then (though over late) grievously lamented: but this Judge (saith the same Authour) saepius mihi fassus est, quod nunquam in vita sua animum ejus de hoc facto purgaret. He himself often consessed unto me, that he should never during his life be able to clear his conscience of that fact.
Septimo Hen. 4. the King demands of Gascoin Justice if he see one in his presence kill I. S. and another (which was not culpable) was indicted of this before him, and found guilty of the same fact, what he will do in this case, who answered that he ought to respite the judgment againstSee the like Case determined by King Iames in disputations at Oxford. R…x. Plath p. 1 …. 113. 114. 115. Pl…yden. Partridge against St…ange. fol. 83. B. him, because he knew the contrary, and to relate the matter …ully to the King, to procure him a pardon; for there he cannot acquit him, and give judgment of his private knowledg, for the Judges have a private and judiciall knowledge, of their p…ivate knowledg they cannot judge, but may use their discretion. But where they have a judiciall knowledg, there they may and ought to give judgment according to that. As it one be arraigned upon an Indictment for any offence which is pardoned by Parliament, there they ought not to proceed in this, nor to give judgement if he be sound guilty, because it appears to them by their judiciall knowledge, that they ought not to arr…ign them, and they ought to take knowledge of Statutes, although they be not pleaded.
IUDGMENT.
Iudgment, The censure of the Judges is called Iudicium, quasi juris dictum, the sinall saying,Cook. judgment and doom of the Law.
Every Iudg ought in giving his judgment, to avoid two things.
1. Precipitationem, quia ad poenitentiam properat, cito qui judicat.
2. Morosam cunctationem, viz. either when theCook Downams Case. … Rep. Law is determined, or to make a question in the Law where there is none, to cause delay to the party, which is in effect a denying of justice.
IURATA.
Iurata, A Iury vox est fori nostri, and signifies a company of honest and lawfull men, lawfully sworn, to enquire and relare the truth concerning such things as are inioyned them by a Iudge Iurata, Iuratores, and Jury are so called à jurando, they are called in legibus antiquis, Sacramentales à Sacramento praestando, there are divers sorts of Jurors, according to the variety of antient matters, and the nature of the Courts, of which there are two sorts more especially eminent, viz.
1. Iurata delatoria, is which inquires out offenders against Law, and presents their names together with their offences to the Judge, ut in examen vocati juris subeant sententiam, sive ad condemnationem, sive ad deliberationem, and this is called an Inquest, and is two-sold.
1. Major, cui totius Comitatus lustratio, ut in Assisis & Sessionibus pacis, nec non in curia Regii tribunalis demandatur, and is called the Grand Jury, or grand Inquest.
2. Minor, cui minor jurisdictio, ut unius Hundredi in Sessionibus pacis creditur.
2. Iurata judiciaria, is that Jury which determineth de summa litis, or the matter of fact in issue before the Judge, doth punire de jure, and this Iurata, or Jury is also twofold.
1. Civilis, which takes cognizance of civil Actions between Subject and Subject.
2. Criminalis, which takes cognizance o… Actions Criminal de vita & membri… and is alwayes betwixt the King, and the Subject, commonly called the Jur… of life and death.
The determination of the Jury is called some times duodecim virorum judicium, for that t… number of men to make up a Jury are for th… most part but twelve, which custom for the triall of matter of fact, is very antient, and was used amongst the Saxons, ut è L. L. …theldredi in frequ…nti Senateu apud Panatingum editis cap. 4. resert Lambertus, in singulis (inquit) Centuriis Comitia sunto, atq…e liberae c…nditionis viri du…deni aetatè superi…res una cum pr…p…sito sacra tenentes j…rento se adeo virum ali …uem innocentem, haud damnaturos, so…temve absolutur…s, The like to which memorial is, in consulto de monti…ul…s Walliae sub aev… ejusdem Etheldredi cap. …. de pignore ablat… viri du…de…im jure consulti (seu legales) Anglis & Wallis jus dicunt… sc. Angli s…x Walli t…idem, which we call medietas linguae which i… a priviledge or courtesie afforded by the Law to strangers, aliens whose King is in league with us, in s…its about things personall, namely that the Jury shall consist of six English, and six of the aliens own Countrey-men, if so many can be found, if not aliens of any other Country, who by league are capable.
The Office of the Jury is to sind veritatem facti, and of the Judge to declare veritatem juris.
It is a Maxim in the Law, quòd ibi semper fieri Cook 4 Rep. Cases of Appeals and indictdebet triatio, ubi juratores meliorem possunt habere notitiam.
Their finding is called veredictum, quasi dictum veritatis.
By the Law of England a Jury after their evidence given upon the issue, ought to be kept in some convenient place, without meat or drink, fire or candle, which some Books call an imprisonment,Cook on Lit. l 2. c. 5. sect. 366. and without speech with any unless it be the Bailiff, and with him only if they be agreed.
After they be agreed, they may in causes between party and party give a verdict before any of the Iudges of the Court, and then they may eat and drink, and the next morning in open Court, they may either affirm or alter their privy verdict, and that which is given in Court shall stand.
If the Jury after their evidence given unto them at the Barre, do at their own charges eat or drink either before or a…ter they be agreed on their verdict, it is unable, but it shall not avoid the Verdict, but if before they be agreed upon their Verdict, they eat or drink at the charge of the Plaintiff, if the verdict be given for him, it shall avoid the Verdict, but if it be given for the Defendant, it shall not avoid it, & sic è converso. But if after they be agreed on their verdict, they eat and drink at the charge of him for whom they do pass, it shall not avoid the verdict.
If A. be appealed or indicted of murder, viz. that he of malice prepensed, kills I. A. pleadethCook on Lit. l. 3. c. 8. sect. 484. that he is not guilty modo & forma, yet the Iury may find the defendant guilty of man-slaughter without malice prepensed, because the killing of I. is the matter, and malice prepensed is but a circumstance.
Quod verò Polydorus Virgilius scribit Guilielmum illum victorem duodecim virorum judicium primum induxisse, nihil à vero alienius. Multis enim ante annis in usu fuisse certissimum est ex legibus Ethelredi, nec est our terrible judicium vocaret, è populo enim duodecim viri liberi & legales è vicinia ritè evo…antur, hi jurejurando obligantur vere de facto sententiam dicere, advocatos coram testes tribunali ut…inque differentes, & audiunt; inde acceptis Cambden in Britan.utrius…; partis instrumentis concl…u…tur, sine ci…, p…tu, & igne detinentur (ni sorte periculum sit ne ex iilis quispiam moriatur) donec coram judice pronun…iaverint, ille de jure sententiam prose…t. Hanc enim rationem prudentissimi majores nostri, optimam esse ad veritatem eliciendam, ad corruptelas evitandas, & affectus intercludendos existimarunt.
IUSTICES.
Iustices, They are called Iustices per metonom…am subjecti, because they do or should do LawCook on Lit. and Iustice.
All the Commissions of the Iustices of the Assize are bounded with this express limitation, Factum quod ad justitiam pertinet secundum legem & consuetudinem Argliae.
K.
KING.
KING, The King by his dignity royall, is the principall Conservator of Peace within his Dominions, and is capitalis Iustitiarius Angliae. The Kings of England themselves heretofore often … in Court in the Kings Bench, the King of Denmark sitteth open… in Iustice thrice in the Week, and hath doores kept open for the nonce.D. & Student c. 7. Fortescue de laudibus legum Angliae, &▪ ali….
The Kings of England at their Coronation take a solemn oath to came all the Customes of their Realm faithfully to be observed, they promise to all their Subjects, …d … …, nulli n…abunt, aut different justitiam vel ….
The King cannot take or part from any thing but by matter of Record, and that is for the dignity and Maie… of his person.
Rex precipit, & lex precipit, are all one, for the King must command by matter of Record, according to the Law. Cooks 2 part of I…stit. cap. 15.
All Lands are holden of him either immediately,Bracton. or mediately, no Action lieth against him.
It is a Maxim in the Law, That the King can Cook 7 Rep. Calv. case. in genere he dieth not but in hoc individuo, Henry and Edward the King.do no wrong, because it presumes he will do no wrong.
The King hath two capacities in him.
One a naturall body, being descended of the blood Royal of the Realm, and this body is of the creation of the Almighty God, and is subject to death, infirmity.
2. A politique body or capacity, so called because it is framed by the policy of men, and in this capacity, it is said, the King never dieth.
Although it be a Rule in the Law, that the King is not bound by the generall words of anCook 5 Rep. Cases of Ecclesiasticall persons. Act of Parliament, where he is not named, yet in these cases the King shall be bound by the generall words of an Act, though he be not named, viz. if the Statute be to supress wrong, to take away fraud, or to prevent decay of Religion, for Religion, Justice and truth are the Supporters of Crowns and Diadems.
KNIGHT.
Knight, is a Saxon word, and by them written Cnit…, …hivaler taketh his Name from the Horse, because they alwaies served in Warres on hors-back. The Latins call them equites, the Spaniards Cavalleroes, the French-men,Cook on Lit. l. 2. c. 4. sect. 112. Chivaliers, the Italians Cavallieri, and the Germaines Reiters, all from the Horse.
KNIGHTS-FEE.
A Knights-Fee consisteth of twenty poundFoedum militis. Cook on Lit. l. 2. c. 4. sect. 112. Land, and he payeth for his relief, for a whole Knights Fee, the fourth part of his Fee, viz. five pound and so according to the rate.
KNIGHTS-SERVICE.
Knights-Service, is commonly called servitium militare, or servitium militis. Regularly there are six incidents to Knights service, viz. two ofCook on Lit. l. 2. c. 4. sect. 103. honour and submission, as Homage and Fealty, and four of profit, Escuage, wardship of the Lands, marriage and relief.
It was called servitium militare, the service of a Souldier, and the title of Knight-hood came first by doing some military service, and miles signifieth both a Souldier and a Knight.