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The GROUNDS of the LAWES OF ENGLAND; Extracted from the Fountaines of all o­ther Learning: And digeſted Methodically into CASES, for the Uſe and Benefit of all PRACTICERS, and STƲDENTS.

With a Commixtion of divers ſcattered Grounds concerning the reaſonable Conſtruction of the LAW.

Major haereditas venit unicuiquenoſtrum a jure & legibus, quam ab iis, a quibus illa bona relicta ſunt: Nam ut perveniat ad nos fundus, teſtamento alicujus fieri poteſt: ut retineamus quod noſtrum factum eſt, ſine jure civili fieri non poteſt. Cicero pro Cetinna.
The Common Law is the beſt, and common Birth-right that the Subject hath, for the ſafeguard and defence, not only of Goods, Lands, and Revenews, but of his Wife and Children, his body, fame, and life alſo,Coke Com. f. 142.

By M. H. of the Middle-Temple.

LONDON, Printed for H. Twyford, T. Dring, Jo. Place, and W. Place, and are to be ſold at their Shops in Vine-Court Middle-Temple, at the George in Fleetſtreet, at Fur­nivals, and Grayes-Inne Gates in Holborn, 1657.

Magno, magnae BRITANNIAE, & HIBERNIAE, &c. Principi, Patri Patriae, & ſemper AƲGƲSTO.

Illuſtriſsime princeps,

QUI & Hiſpanorum, & papicolarum es Horror, ſicut & pio­rum principum, & proteſtantium amor: Cujus ſo­lum nomen alteros (uti de Cae­ſaris hoſtibus olim dictum) ſomnum capere non ſinit; A­lii vero veſtra ope, & authorita­tis ſcuto tecti, & muniti, aut vi­ctores, aut incolumes plerumque evadunt,Macte virtute eſto, ſententia dia Ca­tonis.Accedit etiam praeclara veſtra prudentia in adminiſtratione turbulentae hujus reipublicae: Ex quo enim gubernacula imperii & fraena reipublicae in te ſuſcepiſti, Britannia ſub veſtro principatu hoc didicit, quantum refert, graviſſimis, & difficilli­mis temporibus aliquem reipub­licae praeeſſe. Qui ſic ſuo fun­gitur officio, ut bonorum homi­num non ſolum expectationi, ſed votis ſatisfacere ſciret.

Cui adjicienda eſt veſtra fru­galis aulae veſtrae domeſticae cura, quae non uti Craeſi regia magni­ficè, & ſumptuoſe eſt exornata, ſed ſicut platonis domus mun­do nitore ſplendida: Cujuſque menſa non ſaliaribus dapibus, aut Vitellii patinis eſt referta, ſed ſatis liberalis, & bene neceſſari­is quidem rebus inſtructa: Ita ut lauta ſit, & ſobria, omniſque luxus expers, & vacua, nullaque ſit familia melius morata, aut ſanctius inſtituta quam aula veſtra.

Quid autem memorem Juſti­tiae veſtrae ſolemnia exemplaria, quae per totum noſtrum orbem diffuſa, in propatulo ſunt, & ſub omnium oculorum ictu. Ne­queo tamen ſilentio praeterire, gratiſſimum veſtrum nobis o­pus, quod leges noſtras anti­quas, patrias, & haereditarias, Invitis, & reluctantibus non­nullis innovatoribus, ſtabilire, & Juramento veſtro confirmare dignatus es: Ita quod recte ap­pelleris legum noſtrarum ful­crum, & columna: In eo ae­quans Themiſtoclem in acie, qui fortiſſimus, & Ariſtidem in pace, qui Juſtiſſimus erat: un­de ſaniorum omnium ſententia conſtat, ſummum pro merito veſtro imperium veſtrae Celſitu­dini Jure deberi: Nam naturae lex eſt omnibus Communis, ut deterioribus imperent meliores. Dyoniſ. Halicar­naſſaeus. Hor.

Sume ſuperbiam
Quaeſitam meritis.

Haecque omnia〈…〉〈 in non-Latin alphabet 〉& ſine fuco profiteri non erubeſco, nec pertimeſco, quia non eſt a­dulatio, vel ſupparaſitatio, vera aſſeverare & praedicare, ſed potius puſillanimitas, & im­modeſta modeſtia, veritatem tacere, & celare. Licetque ſum­ma petit livor, & eminentia in­vidia non Carent, ſit tamen Cel­ſitudini veſtrae, erectus, & un­diquequadratus animus uti ſem­per, qui inſtar cubi, nullis fortu­nae ventis, & procellis divelli, aut proſterni poterit. Quod ut faxit ſummus ille Jupiter Stator, & Je­hova noſter.

Orat & obſecrat veſter obſervantiſſimus & fidiſſimus ſubditus, Mich. Hawke.

To the Candid and Courteous Gentlemen and Students of the Colledges and Seminaries of the LAWES, Originally ſtiled the INNES of COƲRT and CHANCERY.

IT is the Theoreme of the Prince of Phi­loſophers, That every Diſcourſe, or Speech ſtandeth and dependeth upon theſe three Pillars, Qui, de quo, ad quem loquitur, The Author, the Subject, and the Auditor. And a Compendious Page of e­very one of them may not be diſtaſtfull, nor incongruous to the intended ſcope of this Co­dicill. In the handling of which, the Author deemeth it not inconducent to invert the Or­der, Homeri more〈…〉〈 in non-Latin alphabet 〉, and to take his Exordium from the ſubject, or mat­ter it ſelf, as the more worthy, and to place the perſon of the Author in the arrear, as the leſſe worthy; for the matter it ſelf is more certain & evident, Et res ipſa loquitur, is the the firmeſt Argument, and far ſurmounting validity of Authority; As Teſte me ipſo, or ip­ſe dixit: For all Authors do often ſeem to ſtrive and contend for ſupremacy,Patric. l. 2. de princ. unius f. 65. and ſome­times accuſe one another of falſity: as Cauſtri­us and Lyſymachus accuſed Ephorus: Apol­lonius and Nicagoras, Theopompus: Phylo­ſtratus Sophocles, and Pollio Herodo­tus; Neither have ſome abſtained from Pla­to, whom Ariſtole though his Schollar per­ſtringeth in many paſſages, whom therefore Plato wittily called〈…〉〈 in non-Latin alphabet 〉, a mad Colt for kicking againſt his Damme and Maſter: Nay Ariſtotle himſelf, who for his naturall Reaſons is of greateſt authority, was taunted and oppoſed by Vives, and Charronius, Ra­mus, and Mirandulanus, and in this latter age by Paradoxicall Gaſſendus.

Firſt therefore of the Subject, or the Mat­ter ſubjected, which the Philoſophers part in­to the thing conſidered, or the matter handled, which they call ſubjectum materiale, or the manner of conſidering the matter, which they call ſubjectum formale, of both which the ſubject is conſtituted, which is called Adae­quatum. Now to apply this to our preſent purpoſe, The matter conſidered in this Trea­tiſe is the grounds of the Lawes of England, which in the Volumnes of our Reports, and o­ther writings have divers names, Et primo de nomine conveniat, quia res quidem ver­bis natura priores, ſed diſceptatione poſte­riores: And firſt let us agree about the name, becauſe things by nature are before words, but hy deſceptation and diſcourſe words are before them.

Sometimes they are called Principles, as 8 H. 7. 4. It is a Principle, An Eſtate of Frank tenement doth not paſſe without Li­very, but this name Originally cometh from the Grecians, and in this ſence was uſed by Ariſtotle in the firſt of his Phyſicks, Contra negantem principia non eſt amplius diſpu­tandum.

And ſometimes they are called Maximes, as 34 H. 16. 33. It is a Maxime in our Law, that in every action perſonall, the Non-ſuite of one, ſhall be the Non-ſuit of both; but this name is borrowed of the Latines, and is ſo u­ſed by Boethus in his Logick,Boeth. Dia­lect. Sce. in Ar. Top. f. 3. and is all one as Sceglius ſaith, with a Topicall Axiome; for which reaſon Sir Edward Coke giveth it this latine Etymoligy, that they are called Maximes, Quia maxima eſt eorum dignitas,Coke com. & certiſſima authoritas, atque quod maxi­me omnibus probetur.

They are alſo ſometimes called Eruditions, as by Dyer f. 66. It is a common erudition, that in that County where the wrong is com­menced, the Action ſhall be brought; which name alſo received its Origin from the Romans.

But they are many times called grounds, as Dyer f. 30. There is another ground of Tenure in chief, that it ought to be immediately from the King, and ought to begin and take his Originall creation by the King himſelf, and by none of his Sub­jects, with infinite others, which name only hath the ſound and ſenſe of an Engliſh Nota­tion, and therefore is this name prefixed to the Title of the Author, moſt proper to our Law and Language: For a ground is a foundation in Law, upon whoſe reaſon the ſtructure of many particular Caſes doth ſtand. But now the Name, or Shell is cracked and opened, the Kernell and nature of the thing may more clearly be diſcovered, And this alſo must be by diſtinction, which is the prime way of inſtruction: for qui bene diſtinguit bene docet, and therefore premiſe that there are grounds and principles of eſſence and be­ing from which things have their be­ginning and constitution: and ſo are all cau­ſes the grounds and principles of their effects, and there are grounds and principles of know­ledge, which are univerſall propoſitions, by which as the more worthy and better known, other things are conceived, which are the ma­teriall ſubject ofhiTreatiſe.

Ariſt. 1. poſt.And theſe are either〈…〉〈 in non-Latin alphabet 〉, or〈…〉〈 in non-Latin alphabet 〉, natu­rall, or poſitive, as the Phyloſopher diſtinguiſh­eth them, naturall grounds and principles are thoſe, to which the humane intellect by its na­tive propenſity doth aſſent without any ratio­cination, and are either ſpeculative, or pra­ctick, ſpeculative are thoſe which im­mediately appertaine to contemplation, as impoſſible eſt idem eſſe, & non eſſe, it is impoſſible for the ſame thing to be, and not to be, & totum majus eſt ſua parte, the whole is greater then the part, and practicall are thoſe which reflect on the honeſty and manners of men, as parentes ſunt colendi, Parents are to be honored, & non eſt faciendum alteri, quod tibi non vis, you ought not to doe that to ano­ther you would not have done to your ſelfe: So vim virepellere licet, it is lawful to repel force by force; both which are called〈…〉〈 in non-Latin alphabet 〉, common notions, & theſe, ſaith the Phyloſopher, are called prime principles, quia non ab alijs, ſed a ſeipſis fidem habent, becauſe they have not their credit and authority from others, but from themſelves, and of theſe eſpecially is the rule cited by Sir Edward Coke, to be under­ſtood, principia probant, non probantur,Coke com. 343. becauſe the proofe ought to be from an higher cauſe, and there is nothing more ſupreme then a principle, yet if any be ſo abſurd to de­ny them, they may be proved a poſteriori, or by induction, as if one ſhould deny, totum eſſe majus ſua parte, it may be proved by the exa­mination, and proportion of every particular part, and if any one ſhould deny the fire to be hot, let his hand be put to it, and it is proofe ſufficient.

Thetick and poſitive grounds and prin­ciples are thoſe, which are placed in Arts and Sciences to manifest, and prove their propo­ſitions and concluſions, and are drawn from the ſecondary Law of nature and reaſon,Dod. Eng. Lawy. 208. and therefore by Cicero are called, conſequentia naturae, as the others prima naturae, and by Sir John Doderidge, primary, and ſecondary propoſitions, primary which are known notions, whoſe clearneſſe, and evidence cauſeth every one to yeild to their conſent; and ſeconda­ry, which are deſcended and derived from the branches as from a root, or rivers from a Foun­taine, as ſublata cauſa tollitur effectus, the cauſe being taken away, the effect alſo ceaſeth, & qui tacet, conſentire videtur, he which is ſilent ſeemeth to conſent.

And theſe generall grounds and propoſiti­ons, are the foundations of all Arts and Sci­ences, for the courſe and proceeding in every one of them is deduced from generall grounds and precepts, which are ſo neceſſary, that without them we cannot attaine to the know­ledge of the Species,Dod. Eng. Law. f. and individualls, for the Phyſitian when he undertaketh the cure of a malady in ſome ſingular perſon, he effecteth it not by ſenſe and Symptomes, but by reaſon and Aphoriſmes, and ſo alſo doth the Legiſt, who though he exerciſeth his practiſe on par­ticular mens caſes, yet doth he judge of the right by univerſall grounds and maximes,Coke com. f. 11. which therefore by Sir Edward Coke are called the grounds of Art and concluſions of reaſon,Ployd. f. 29. and by Mr. Ploydon, the foundation of the Lawes,Forteſc. de Leg. Ang. f. 21. and concluſions of reaſon; ſo alſo ſaith Sir Iohn Forteſcue, that the principles, and efficient cauſes of our Lawes are certaine univerſalls, which the learned in the Lawes of England call grounds and maximes.

Yet is not the Art and Science of the Law of the like certainty with other Arts and Sci­ences, by reaſon of the variable condition of the ſubject whereupon it is imployed, conſiſting onely upon a mans changeable, and inconſtant converſation, from whence the grounds and knowledge of all Lawes are in generality deri­ved, and upon which they are commonly ex­erciſed, and therefore to that purpoſe ſaith the Phyloſopher,Ariſt. 1. Eth. c. 3 that〈…〉〈 in non-Latin alphabet 〉, honeſt and just things of which the politick, and civill Science conſidereth, con­tain in them, ſo great differences, and errors as they ſeem only to conſiſt by Law, and opini­on, and not by nature, whereupon Sir John Doderidge judiciouſly collecteth, that it is al­moſt impoſſible to make any ſecondary ground of Law, but that it will faile in ſome particu­lar caſe, whence ſpringeth this often uſed aſ­ſertion, non eſt regula quin fallit, there is no rule but faileth, and therefore the ordainers,Dod. 3. L. f. 209. and interpreters of Lawes, reſpect rather thoſe things which may often happen and not every particular circumſtance, for which, though they would, they ſhould not be able by any po­ſitive Law to make proviſion.

By reaſon whereof they doe permit, the Grounds and Maximes of the common Law, upon argument and diſputation of reaſon to be reſtrained by exceptions.

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Yet doth not the exception ſo framed upon any ground or rule to which it is annexed, impeach the credit of the ſaid ground, but as Sir Edward Coke, and Sir John Doderidge, firmat regulam in omnibus caſibus non ex­ceptis,Coke com. Dod. E. Laws f. 210. corroborateth the rule in all caſes which are not excepted.

Melancton in his Logick addeth another ground and principle which exceedeth the Phyloſophers apprehenſion, to wit, principium patefactionis divinae, the principle of divine revelation, which our Law alſo holdeth to be the prime principle, and ground of all the reſt, for as Priſot a principal Juſtice of the common Pleas ſaith,24. H. 8. 46. 1. we ought to give credit to all ſuch Laws as are taken out of the holy Scriptures, for that it is the common Law upon which all Lawes are founded, and from which all other Lawes doe proceed, and therefore may be cal­led divine Lawes as they are conjoyned with the morall Law, and have divine authority, as alſo humane Lawes as men by their knowledge doe judge all humane affaires.

It followeth that we now inquire, of the manner of conſidering the grounds and rules of our Lawes, which is by the extraction of them out of the roote, and fountaine of other Acts, and Sciences, for as reaſon is the mo­ther of the rules, and grounds of all Acts, and Sciences, ſo are they by the ſame reaſon uni­ted, and cemented together, as that the grounds and rules of one Science are adjuvant, and auxiliary to another, which the Author hath fully & expreſly demonſtrated in the preamble, and frontiſpice of the firſt Book of this treatiſe, to which he referreth the Reader; And to which may be annexed the method which alſo may be called a manner, and forme of conſi­dering, concerning which the Judges and Sages of our Laws doe diſſent and vary, whe­ther any, or what manner of method is to be uſed in the ſuſtemes and digeſts of our Lawes, for the antique, and neoterique reporters and writers of our Lawes reſpect more the matter then the method; And Sir Edward Coke, be­ing adviſed by King James at ſome opportune time to reduce the common law into a more com­modious method,Coke l. 4. Ep. ad lectorem. did much doubt of the fruites of his labour, if he ſhould undertake it, and ſo doth Sir Francis Bacon freely profeſſe, that though he could have digeſted the rules of our Lawes into a certaine method, and order, yet doth he of purpoſe avoid ſo to doe, but Sir Hen­ry Finch hath endeavoured,In his pre­face to his rules and maximes of the Law. and fairely pro­ceeded in reducing not onely the body of our Lawes into a compendious method, but alſo the grounds and rules of the ſame into an A­cademicall order, for which rarity he hath merited this Elogy, rara avis in lege rubicula.

Haecque alter cantipotior ſententia viſa eſt,

Order being the ornament of all things, and method the beſt art of memory to which pur­poſe Sir John Doderidge aſſerteth, that if there be any way extant,Dod. E. Law. 253. to purge the Engliſh Lawes, from the great confuſions of tedious, and ſuperfluous reiterations; wherewith the reports are infeſted, it may be brought to paſſe by the way of grounds and rules, or by none, for by rules and exceptions, all Sciences are, and have been publiſhed, put downe and deli­vered, and whereas Galene propoſeth three wayes, reaſons, and methods of teaching and learning, the one way by compoſing, and pro­ceeding from the parts to the whole, and the other by reſolving the whole into parts, and the third by defining, which by explication of the nature of the whole, examineth every par­ticular appertaining to the whole. This third and latter may aptly be applyed to the grounds and rules of Sciences; as in Phyſick, to the Aphoriſmes of Hippocrates, and more eſpeci­ally to the grounds and rules of the Law, which by the newer Civilians is taken for a definition, who accordingly do define a rule to be a ſhort definition, or a ſentence, whenas in­deed many like caſes are concluded in a ſhort delivery, not by the expreſſion of the particular caſes, but by the aſſignation of the ſame reaſon, and is nothing elſe but a compendious oration,Br. in re­gulas ju­ris, f. f. 15. & 346. wherein many things are breifly and abſolutely delivered and declared, and ſo doe the Greeke interpreters call a definition〈…〉〈 in non-Latin alphabet 〉, which al­ſo may be orderly diſpoſed into a Methodicall, and an Alphabeticall Table, fit and conveni­ent both for the ſpeedy finding of that we would ſeek, and wiſh for which the Author in the Table of this treatiſe hath accurately obſer­ved.

And beſides hath been diligent to reduce them into a more artificiall order, by drawing the grounds and rules of our free and Munici­pall Laws, from the Springs and Heads of the liberall Arts and Sciences, and by that meanes hath brought them into a more convenient forme, and method, which he ingenuouſly ac­knowledgeth to have borrowed of Sir Henry Finch, and Mr. Noy, quia ingenuum duxi, profiteri per quos profeciſſem, and to which according to his ſlender skill he hath added, a copious amplification, ſeriouſly upon mature, deliberation, conceiving that all the Grounds, and Principles of our Lawes may be placed, diſpoſed, and contained under ſome of thoſe Heads; and conſequently every particular caſe under the generall, and ſeverall grounds in every one of them, for as Sir Edward Coke, principium eſt quaſi primum caput,Coke com. f. 345. a. a prin­ciple is the prime Head, from the which many caſes have their beginning, and originall, and therefore hath the Author diſpoſed as many particular and ſeverall caſes under every ge­nerall and ſeverall Heads, as he could conve­niently collect, and accumulate having learned of the ſaid Author, that there is no particular caſe in the Law ſo ſterill, but that the Student at one time, or another may make uſe of it, for the defect of which Sir Francis Bacon taxeth the Civilians in his preface to his Maximes, which though the Author hath not compleated, yet hath he endeavoured ſo to doe, and made way for others to effect it,Et ſit nobis voluiſſe fat.

But now Gentlemen the Author turneth his ſtile towards you who are the coronides of his labors, and lucubrations, and to whom they are devoted, and directed; for yee are legum noſtrarum alumni, fed and nouriſhed with the teates and tra••ates of the Law, and therefore〈…〉〈 in non-Latin alphabet 〉, as proper and idoneous auditors of the Grounds and Principles thereof, and did forbeare to commende them to the Rabbies, and Papinians of ourawes for that were to inſtruct Minerua, or to ſubmit them to the Judgement of illiterate Lozels, for they would contemne what they did not conceive, ſo as he may ſay of theſe writings, as Caius Lucilius did of his quod ea que ſcriberet, neque ab in­doctiſſimis,Cicer. de oratore l. 2. neque a doctiſſimis legi velle, quod alteri nihil intelligerent, alteri plus for­taſſe quam ipſe de ſe, that thoſe things, which he ſhould write, would not be read of thoſe were moſt learned, nor of thoſe were not learned at all, becauſe theſe underſtood nothing, and the others perhaps more then himſelfe, & ſic,Pro captu lectoris habent ſua fata libellis,

To youre therefore indifferent and debo­naire Judgements hath the Author deſtinated this diſcourſe, as the immediate, and adequate object of the ſame, it neither tranſcending, or ſurmounting your capacities, nor being inferi­or, or ſubordinate to your conditions, or profi­ciencies whence he is uſed to preſume on your affable and gracious acceptance, becauſe by nature all men are rapaces ſimilium, and co­vetous of thoſe things are conformable to their conceptions and conditions, and for this reaſon confidently aſſumeth to himſelfe, that the con­ſideration of theſe grounds and principles will be conſonant and pleaſing to your affections, eſpecially when you ſhall perceive the great and various utility, which from the election of them may proceed, for as in naturall opera­tions, the neceſſity, and utility of the thing is predominant, ſo in morall and civill affaires, the uſe and commodity is prevalent, and as Galen in all things, Vincat utili­tas,

The prime uſe therefore which accrueth from the collection of theſe Grounds & Prin­ciples, is the confirmation of our memory, which is the treaſury and perfection of all learning and erudition, for whereas our annalls, and reports doe conſiſt of particular caſes, and eve­ry particular caſe hath his ſeverall circumstance, and circumſtances are ſingular, and in regard of us infinite, and therefore hardly, if not impoſſible to be retained in memory, ac­cording to the dictate of Bracton, omnia in memoria tenere divinum eſt potius quam humanum, yet by theſe Grounds and Prin­ciples, is this oblivious defect ſalved and re-remedied, for by the obſervation of theſe grounds, he will be inſtructed to remember the reaſon of them, by which he ſhall reſolve all doubts of like degree, as if he had remem­bred the expreſſe caſes from which the ſame reaſon and ground is reduced; ſo as by their brevity they ſtrengthen us, and coroborate the memory:Quintil. l. 2. For as Quintilian, ſententiae feriunt animum, & uno ictu frequenter im­pellunt, & ipſa brevitate magis haerent, Sen­tences ſtrike the mind & with one blow, com­monly conquer it, and by their brevity ſtick more firmely, that, is in the memory: And therefore did Pythagoras, and the ancient Philoſophers deliver their morall and civill Diſcipline by Aphoriſticall Precepts, and Laconicque ſentences, that they might more eaſily apprehend and retain them in memory, wch alſo may appear by the Proverbs of Solo­mon, and by the Aphoriſmes of Hyppocratis, and the Precepts of Theognis,Bacon in his Preface to his Rules and Maximes. & Phocilides, but chiefly as Sir Francis Bacon obſerveth by the Praecedents of the Roman Civill Law, who have taken the ſame courſe with their Rules:Dod. E. l. f. 56. From whence as Sir John Dodridge collecteth that many Axioms & Rules are bor­rowed and uſually frequented in our Law, which do more aptly and fitly expreſſe the ſame reaſon in ſhortneſſe of ſpeech: which by Mr. Ployden are ſometimes cited and called the Text of the civil Law,Ployd. f. 368. & by Sir Ed. Coke oftner, but for the moſt part by him concealed, in ſometimes altered, which may be obſerved or the paſſages of the Author, who commonly conjoyneth the Civill Rule, with our Com­mon Law ground.

Beſides, it is not unknown almoſt to every Puny, what a laudable and difficult task it is to argue a caſe accurately upon a Quaere, or Demurrer in Law, wherein by the election of Grounds and Maximes, the Lawyer is taught to abound in matter fit for Argument; For as Mr. Ployden,Ployd. f. 27. b. there are two princi­pall things upon which Arguments may be made, to wit, Maximes and reaſon the Mo­ther of all Laws: and Maximes, ſaith he, are the foundations of Lawes, and concluſions of reaſon; whereby is manifeſted the help and aſſiſtance, that Grounds and Maxims do yeild in the diſcuſſing of ſuch Arguments, which conſiſt in the apt application of the ſaid Grounds and Maximes, unto ſuch par­ticular Caſes falling in debate.

To which the Author will onely add one Ʋſe more, leaſt he ſhould exceed the limits of a better, which according to Cicero's example, ought to be ſhort and pithy, and that is the accumulation of the Grounds and Maixms, into a breviary, and compendium collected out of the claſsick and authentick Authors of our Lawes, which as Politian eligantly, La­borioſius ille fuit quā ſibillae folia colligere, was more laborious to him, then to collect the ſcattered leaves of the Sibils: and in framing of which he may ſay with the witty Poet,Saepe caput ſcaberet & vivos roderet un­gues.And of which he may not unfitly ſay with Lucretius,

Floriferis ut apes in ſaltibus omnia libant,
Omnia nos itidem depaſcimur aurea dicta,
Aurea perpetua ſemper digniſſima vita.

All which though through the brevity of time and importunity of the Preſſe, he could not compoſe into a compendious lump, yet hath he gathered together the chiefeſt and choicest of them, and more then any other Collector before him, to the number two a hundred.

All which compriſed, Tanquam in pala annuli, into a little compaſs the Author affe­ctionately preſenteth to your benigne animad­verſion, which you have here, Ad manum, prepared to your hand, to make uſe of them upon any fit and opportune occaſion.

But now is it high time for the Author to appeare on the Stage, who though in the flowre of his age was initiated into the ho­nourable houſe of the Middle Temple, and for the ſpace of theſe twenty Summers, hath principally devoted his ſtudies to the know­ledge and practce of our Lawes: Et ſic tra­ctent fabrilia fabri: yet doth he modeſtly acknowledge, that the theme of this Tractate, is an Objetoo high for his inferior flight, and not to be reached by a Musket, or a Sparrow-Hawk, but by an Eagle, or Birds of a more ſoaring, or ſurmounting flight. Howſoever propoſing unto himſelf the Pattern and Pro­teſtation of Cicero, Quod omnes ii ſumus,Cic. l. 2. de Orat. ut ſine ſtudiis nullam vitam eſſe dicamus, That we are all of that opinion, that without ſtudy and labour there is no life: And the advice of Sir Edward Coke, Omnes debere juriſprudentiae libris componedis animum adjicere, That all men ought to addict their mindes to the compoſing of Books of the Law. He did rather chooſe to incur the cenſure of temerity and audacity, then to undergo the ig­nominy of oſcitation and idleneſſe, of which, as Cato ſaith, Every one ought to give a reaſo­able account, eſpecially thoſe who are stepped into years, in whom nothing is more diſhonou­rable, and ignominious, according to the ſen­tence of Sedulous Seneca,Cricitas de hon. diſ. l. 1. c. 8. Nihil eſt turpius, quam grandis natu ſenex, qui nullum habet vitae ſuae argumentum, quo diu ſe vixiſſe dicat, praeter aetatem, There is nothing more fowle and filthy then a very aged man, who hath no other argument of his life, by which he may ſignifie he hath lived, beſide his old age. And though it is the obſervation of the Philoſopher,〈…〉〈 in non-Latin alphabet 〉. All men love their own Works,Ariſt. 4. Eth. c. 1. as Parents and Poets do: yet doth the Author acknowledge with Cicero, Quod nihil meorum magnopere miror, That he never admired any of his own works, but ſaith with Ovid,Ipſe mihi nunquam Judice me placui.That he could never as yet by his own Judg­ment pleaſe himſelf, though it alwaies hath been his ambition to pleaſe others, according to the option of the Conſular Poet,Optabam ut placeam, ſin minus ut taceam.And this modeſt leſſon hath the Author learn­ed of the great Legiſt Sir Edw. Coke, Nulla ſcientia,Coke com. f. 494. nulla virtus locum ſuum, & digni­tatem conſervare poteſt ſine modeſtia, no ſcience, nor virtue can preſerve its place, and dignity without modeſty, and according­ly doth he cloſe up his diſcourſe with the con­cluſion of Bracton, poſtulans a Lectore,Brac. l. 1. f. 1. ut ſiquid ſuperfluum, vel perperam poſitum in hoc opere invenerit, illud corrigat, vel emendet, vel connuiventibus oculis pertran­ſeat, requeſting this of the Reader, that if he ſhall finde any thing ſuperfluous or placed a­miſſe in this worke, that he will either correct or amend it, or with conniving eyes paſſe it by.

Or rather with our great Maſter Little­ton.

Si componere magnis,
Ovid.
Parva mihi fas ſit.

That he would not have you beleive, that all that he hath ſaid in this Booke is Law, for he will not preſume to take that upon him, but of ſuch things, which are not Law enquire, and learne of his Sage Maſters learned in the Law.

THE GROUNDS OF THE LAWES OF ENGLAND. Extracted out of the Root and Foun­taine of other ARTS & SCIENCES. LIB. I.

SECT. I.

IT is the obſervation of Cicero who ex­celled in the knowledge of all hu­mane Arts and Sciences,Cic. 3. de. orot. Omnes ates quae ad humanitatem pertinent habent commune quoddam vinculum & quaſi cognatione quadam inter ſe continentur. All Arts and Sciences which appertaine unto huma­nity, have a certain common bond and tye, and are as it were contained by a certain alliance and affinity amongſt themſelves, and truly, for they are the iſſue of one Womb deſcending from the ſame intellect, and are by nature ſo linked and chained together, that thoſe principles which are true in one Art and ſcience are reciprocally true in the other, for truth,2 abſolutely and materially is one and the ſame, though formally or relatively, either in reſpect of the Artiſts or the diverſe objects of Sciences, it bee ſevered, which proceeds from the various mode of the appli­cation and conſideration of it. Neither is Theo­logicall and Philoſophicall truth oppoſite but ſubor­dinate, and Theologie is not againſt Philoſophie but above it, neither doe the principles of one ſcience ſupplant the principles of another ſcience, but mutu­ally aide and aſſiſt each other with their principles in ſearching and ſifting out of the truth, which is practically apprent in the art and diſcipline of the Law,Nomot. f. 6. which borroweth moſt of her principles from other ſciences; in ſo much, as Sir Henry Finch elegant­ly, The ſparks of all Sciences are raked up in the aſhes of the Law, for which reaſon Sir Edward Coke aptly ſtileth it ſcientia ſocialis,L. 5. 8. a ſociable ſcience becauſe it agreeth with other excellent ſciences both divine and humane, and therefore the Author deemeth it operae p ecium, a work worth the labour, to demon­ſtrate as it were in a mirror and blazon the affinity and aliance that the grunds of the Lawes of En­gand have with the principles of other arts and ſci­ences, who by an intellectuall chaine are divinely linked and conjoyned: and becauſe Theologie is the prime and divine Metaphyſicks, arsrtium, & ſcien­tia ſcientiarum, and the cynoſure of all lawes, for as Auguſtine, in illa temporali lge nihil eſt juſtum ac legi­timum, quod non ex hac aetena homines derivaverint, in this temporall Law nothing is juſt and lawfull, that men have not derived from the law eternall, and therefore doth the Author deduce his exordium from it, becauſe as Sir Edwa doke, it is cauſa cauſa­rum, and that the common law is grounded on the Law of God, and as the mirror of juſtice, the com­mon Law is nothing elſe but ancient uſages warran­ted by Scriptures, from hence are drawne theſe grounds and maxims.

1. Summa ratio eſt quae po religione facit, Reg. l. c. Coke l. 5. f. 18, a. it is the cheifeſt reaſon which3 makes for religion, as in many caſes the King is bound by Act of Parliament, though he be not na­med in it, nor bound by expreſſe words. And there­fore all Statutes which are made for ſuppreſſing of wrong or to prevent the decay of religion, ſhall bind the King though he be not named, lor religion and juſtice are the ſure ſupporters of the Crowne, and di­adem of Kings. So the act of 1 Eliz. which reſtrai­neth eccleſiaſticall perſons from ſpoyling and waſting their poſſeſſions, which were given to maintaine the ſervice of God, ſhall bind the King unleſſe that ſpe­ciall proviſion had been made to the contrary by the ſaid Act

2. Coke l. 11. f. 70. a. b. Magdalens Colledge Caſe, the Maſter and fellowes of Magdalens Colledge by Indenture inrowlled, did grant to the Queene an houſe paying fifteen pounds rent yearely, &c. and it was reſolved by all the Judges that the Act of the 13. Eliz. did extend to reſtraine them to convey the ſaid houſe (parcell of the ſaid colledge) to the Queene, though ſhe was not in that expreſly named, becauſe it was for the advancement of Religion &c. for out of thoſe Colledges the Church was furniſhed with grave and reverend Divines, for the inſtruction of Chriſtians in the true Religion, which is a maine Pillar of the Crowne, and if the King ſhould be ex­empted out of it, the utter impoveriſhment of the ſucceſſors, and by conſequence, the decay of Religion would enſue, vide.

3. Coke l. 2. f. 44. b. A lay man concerning pay­ment of Tythes, may preſcribe in modo decimandi, but not in non decimando, becauſe he is not but in ſpeciall caſes capable of Tythes by the common Law, and therefore without ſpeciall matter ſhewed, he ſhall not bee intended to have a legall diſcharge: And therefore in favour of religion and the Church, though he may have a legall beginning, yet the law will not ſuffer ſuch a preſcription in this caſe, nor put it upon the triall of the lay people, who will rather ſtraine their conſciences for their owne private gaine4 and benefit, then give the Church its due: And the Law hath great policy in it, for the decay of the Re­venues of the Church in the end will be the ſubver­ſion of Religion and the ſervice of God, &c. vide.

4 Eccleſia fungitur vice minoris, meliorem facere poteſt conditionem, deteriorem nequaquam, Cok. Com. 141. a. The Church exerciſeth the Office of a mi­nor & can make its condition better but not worſe, for it is the cheifeſt reaſon which makes for Religi­on: And therefore in all caſes a Parſon or Vicar of the Church for the benefit of the Church hath a qualified fee, but in many caſes to doe any thing to the prejudice of the Church he hath in effect but an eſtate for life.

As a Parſon, Vicar, &c. may have an action of Waſte, and in the Writ it ſhall be ſaid, ad exhere­dationem Eccleſiae. So the Parſon that maketh a Leaſe for Life ſhall have a conſimili caſu during the life of the Leaſee, and a Writ of Entry ad commu­nem legem after, or a Writ ad terminum qui preterijt, or a quod permittat in the debet, which no man can maintaine but Tenant in Fee-ſimple or Fee-tayle, vide.

But a Parſon cannot make a diſcontinuance, for that ſhould be to the prejudice of his Succeſſor to take away his Entry and drive him to a reall action, but if he dye, the Succeſſor may enter notwithſtan­ding the diſcontinuance. And if a Parſon make a Leaſe for years reſerving rent and dyeth, the Leaſe is determined, neither will the acceptance of the Succeſſor make it good, vide.

5. Prelatus Eccleſiae ſuae conditionem meliorem fa­core poteſt ſine conſenſu, deteriorem vero nequaquam ſine conſenſu, Coke Com. fol. 103. a. As neither Biſhop nor Parſon cannot diſclaim or deveſt any fee is inveſted in his houſe or Church. But an Abbot or a Prior with his Covent, or a Biſhop with his Chapter, or a Parſon with his Patron and Ordina­ry, may paſſe away any Inheritance, for the wiſdome of the Law would not truſt one with the Inheritance5 of the Church; which alwayes maketh for religion and the good of the Church.

6. Dies dominicus non eſt dies juridicus, Ployd. 265. The Sabbath day is no day for Law: As upon a Fine levyed by Proclamations according to the Statute of 4. H. 7. C. 24. If any of the Proclamations be made on the Sabbath day, all the Proclamations be erronious, for the Juſtices muſt not ſit upon that day, but it is a day exempted from ſuch Buſineſſes by the Common-Law, for the Solempnity of it; to the in­tent that the people may apply themſelves that day to the ſervice of God.

No Plea ſhall be holden Quindena Paſche, becauſe it is alwayes the Sabbath, but ſhall be Craſtino quin­denae Paſch. Fit. Nat. fo. 17. f.

Upon a Scire facias out of the Common Bench, an Error was aſſigned becauſe the Teſte of the Scire facias was upon a Sunday: And it was adjudged Error, becauſe it was not Dies Juidicus, Dyer 168.

No ſale upon a Sunday ſhall be ſaid to be ſale in a Market overt to alter the property, 12 E. 4 8.

Although Sunday is not Dies Ju idicus, and that no judiciall Act ought to be acted on that day, yet miniſteriall Acts, as to arreſt or ſerve Proceſs are allowed, for otherwiſe peradventure they ſhould ne­ver be executed, and God forbid that things of ne­ceſſity ſhould not be done on that day, for bonum eſt bene facere die Sabathi, but this diſtinction and ex­ception is taken away by a late Act made in the long Parliament of England, yet did that Parliament in caſe of neceſſity once ſit upon the Lords day, which is the high Court of Juſtice, and from which there is no appeale.

By the Statute of Magna Charta, Cap. 14. no ſpi­rituall Parſon ſhall be amerced according to his ſpirituall benefice but according to his Lay fee, Fitz. Nat. br. f. 76. b. And that in favour of Religion.

7. Omnia quae movent ad mortem ſunt deod inda, Coke l. 5. fol. 110. b. any unreaſonable thing killing a man by miſadventure is forfeited to the King, and6 every thing moveing with it is forfeited alſo to the King: As if a man being upon a Cart carrying Faggots, and as he is in binding them together fal­leth downe by the motion of one of his Horſes in the Cart and dyeth of that, both that and all the Horſes in the Cart, and the Cart it ſelfe are forfei­ted, 8. E. 2. 307. A man falleth from a ſtack of Corne and dyeth, it is forfeited, 2. E. 3 140.

If any Horſe ſtrike one and Ilien my Horſe, and he dyeth, my Horſe is forfeited, becauſe the forfeiture ſhall have relation to the ſtroke given, Ployd. 260. b. Kllaway, 68. b. but it is not forfeited untill the matter be found on record, and therfore it cannot be by preſcription, and the Jurors that find the death muſt alſo finde and apprize the goods, Coke l. 5. fol. 11. b.

And therefore are they called Deodands, quaſi deo­danda, that is, Elemoſynas eroganda, to be diſpoſed in Almes and workes of Charity, 17. E 4. 2. and for that reaſon doth the King grant them to his Almo­ner, to the intent they ſhould be diſpoſed of by him accordingly.

Actus dei nemini facit injuiam, Cok. Com fol. 148 So much is the reaſon of the Law ruled by Religion, as it will not permit the Act of God to prejudice any one, as if Tenant for another mans life granteth a Rent-charge to one for one and twenty years ceſty que vie dyeth, the Rent-charge is determined, and yet the Grantee during the years may have a Writ of Annuity for the Arrearages in­curred after the death of ceſty que vie, becauſe it de­termined by the Act of God.

Cok. lb 8. fol. 72. Hales Caſe. An Office is found that the Heir is in ward, who after he was of ful age tendreth his Livery, and was admitted to it, the Heir within three moneths, which is the uſuall time to ſue out his Livery, bargaineth part of his Lands by Deed inrolled, and within the three moneths dyeth, the bargaine was adjudged good, and that the Heire ſhould have no prejudice, becauſe the ſuing7 of his homage, and ſuing out of his Livery, with­out default in him was become impoſſible by the Act of God, & Impotentia excuſat lgem; and is all one as if the King had taken the Homage of the Heire, when the Heire made his tender, vide ibidem pua.

Coke lib. 8. fo. 63 a. If an Houſe fall by tempeſt or other Act of Gd, the Leſſee for life or years hath a ſpeciall intereſt to take Timber for the builing of the houſe againe, if he will, for his habitation, but if he pull downe the houſe he ſhall not have Timber to builde it, becauſe it is his own Act, and the Leſ­ſor ſhall have an Action of Waſte.

Coke lib. 1. 98. a. If a Leſſee Covenanteth to leave the Wood in as good plight as it was at the time of the Leaſe, and after the Trees are ſubverted by Tempeſt, he is diſchar ed of his Covenant, cauſa qua ſupra, Cok. l. 5. fol. 86. a. Bunfeilds Caſe. If the Defendant in debt, dyeth in Execution, the Plaintiff ſhall have a new Execution, by Elegit or Fieri facias, becauſe the death of the Defendant is the Act of God, which prejudiceth no man.

Nunquam proſpere ſuccedunt res humaae ubi neg­liguntur res divinae, Cok. Com. fo. 54 b. humane af­faires never ſucceed well where divine rites are neglected. And therefore doth that great Legiſt preſcribe theſe Rules, to the Students of the Law for their dayly practice.

Sex horas ſomno, totidem des legibus aequis,
Quatuor orabis, des epuliſqueuas,
Quod ſuper eſt ultra ſacris largire Camaenis.
To ſleep ſix hours allot, to the Laws twice three,
Four to your prayers, two to your Feaſts may be,
And what remains, give to the Muſe Divine.

Sect. 2.

IN the next place the art of Grammer is to be ranked, which amongſt the Liberall Siences hath the Precedency, for it is Janua omnium artium, the8 portall by which we enter into the knowledge of all Arts, and by which we communicate our ſelves and ſtudies to others; hence proceede theſe rules and maximes.

Ignoratis terminis ignoratur ars, Cok. Com. 177. a. As in Schoole Divinity, Civill Law, Logick, and other Arts, there are words of Art, which are more ſignificant, then Grammaticall, ſo are there in our Law termes drawn from the Legall French, which are more apt and ſignificant to expreſſe the ſenſe of our Lawes then any other. Which words of Art be­ing not conceived, that Art cannot be comprehen­ded. Whence he inferreth that the ſignifications of words in all Arts and Sciences are neceſſary, which Mr. Littleton in his Tenures ordinarily obſerveth, for certainly names which are inſtituted and impoſed according to the rationall Analogy with things by wiſe & underſtanding men are as Plato calleth them〈…〉〈 in non-Latin alphabet 〉inſtructive inſtru­ments by which we are guided and directed to the knowledg of the thing: And therefore in our diſ­courſe and diſputation this ever is to be obſerved, principium in omni re, & diſputatione eſt nomen, the words are firſt to be conſidered, Cok. Com. 68. a.

2. Loquendum ut vulgus, Coke l. 4. fo. 46. a. words ſhall be taken according to their vulgar and ordi­nary conſtruction, as though a perſon attainted be a perſon convict and more.

Yet in the Statute of 25 E. 3. c. 2. It is ſaid that an attaint by virdict is taken as convict by virdict, ſo alſo it is taken, 3. H. 7. c. 1. and oftentimes in common ſpeech, the perſon convict is termed At­taint, for we are to ſpeak as the people uſe to ſpeak; a grant of one hundred Acres of Land in ſuch a Feild, and ſixty in ſuch a Feild, and twenty Acres of meadow in ſuch a Meadow, the Acres ſhall be ta­ken as they are known by eſtimation. But if I have a Cloſe by eſtimation twenty Acres, and by the Statute eighteene, if I grant ten of theſe Acres, he ſhall have them according to the meaſure of the9 Statute, Popham fol. 191. And therefore ſaith Ployd. fo. 169. It is the part of Judges to know the com­mon Language of the people, and to adjudge of thoſe onely according to the common courſe. For he that taketh a Leaſe for Lands in the North Coun­try called a tack, and in Lancaſhire it is called a firme-holte, and in Eſſex a Week, and if he have ta­ken it by theſe words uſed in that Country, there is no reaſon that he ſhould looſe his Farme becauſe he hath uſed no other Language then is uſed in his own Country: But the Judge ought to ſearch and know the ſenſe of theſe words, and ſhall judge them according to the common uſage, otherwiſe he ſhall make great diſturbance and confuſion in the Com­mon Wealth, ib. for verba valent uſu ſicut nummi, and Cok. l. 6. fol. 64. b. concludeth that it is well ſaid in Hills and Granges Caſe 170. It is the office of Judges to take and expound the words which the common people uſe to expreſs their intent, according to their intent and not according to the true defini­tion, vide ibidem plura, Sr. Moyle Finches Caſe, and ſo Coke lib. 7. fol. 11. b. Calvins Caſe, whereas diverſe books and acts ſpeake of the Leagiance of England, all theſe and others ſpeaking breefly in a vulgar manner and not pleading are to be underſtood of the Legiance due from the people of England to the King; and therefore loquendum ut vulgus ſed ſentiendum ut docti for no man will affirme that England it ſelfe taking it for the continent thereof doth owe any le­giance and faith, or that any allegiance, or faith ſhould be due to that: But it manifeſtly appeareth that the Legiance and faith of the Subject is propri­um quarto modo, to the King, ibidem.

3. Ad proximum antecedens fiat relatio, Dyer fo. 14. b. It is a rule in the Grammar, that when a thing is dubious and may be referred to a double intent, let the relation be to the next Antecedent: As the Condition of the Obligation for marriage money, was: That if the wife dye before Michaelmas, without10 Iſſue dyed, adjudged the Obligation was void, for then living relates to the firſt Antecedent that is Michaelmas, and not to the death of the woman, ibidem.

Dyer fo. 46 b. A man was endicted of Felony per nomn I. S. de in C m. pre. ſerviens W. B. in eodem Com. Yeoman, and for defect of a ſufficient addition to I.S. he was diſcharged upon the Enditement, for Yeoman ought to be referred to the maſter as the next Antecedent, and not to I.S. and ſervant is not a ſufficient addition 9. E. 4. So one Sibylla Baterſby nuper de T. in Comitatu Ebor. uxor Johanis Baterſby nuper Spinſter was endited of Felony and murther, and for defect of the addition, ſhe was diſcharged, for Spinſter being an indifferent addition for man or woman (for in Norfolke there are diverſe men which are worſted ſpinſters) muſt be referred to Johanis Baterſby the next Antecedent.

Tenant for life, the Remaindr to B. in Tayle, the Remainder to C. in eadem forma, this is a good eſtate Tayle, for idem refertur proximo antecedenti, Cok. Com. fo. 20. b.

Ad proximum antecedens fiat relatio niſi impedia­tur ſententia, Cok. l. 2. fol. 71 a. Sr. Cromwells, Caſe and Dyer. fo. 13 b. although the rule be true, that the re­lation for the moſt part ought to be ad proximum an­tecedens, yet many times if it be hindred by the ſenſe and meaning it is otherwiſe, for ſenſus eſt ani­ma legis. Cok l. 5. f 2 ſenſe is the ſoul of the Law, and hath a ſpeciall ſway and rule in all Caſes, ſo a man is bound to abide the award of I. S. and he awards that the one party ſhall pay before ſuch a feaſt ten pound to another, and that then he ſhall make him a releaſe, Tunc ſhall not be referred to the Feaſt but to the time of the payments cleerly.

So I.S. bargaineth and ſelleth his Land to I N. for ten pound & predictus Johanes Covenanteth to deliver the Evidences of the Land, it ſhall be under­ſtood of the firſt Iohanes S. the vendor, who by common intendment hath the Evidences, ſo a man11 granteth to one a pention, that I. B. had donec ſibi proviſum fuerit de competenti beneficio: this word ſibi ſhall be referred to the grantee, and not to I. B. ſo in a cui vita, brought by a Feme, the Writ is cui ip­ſa in vita contradicere non poteſt, the word ſhall not be referred to the next antecedent ipſa but to the hus­band, otherwiſe the ſenſe ſhould be imperfect, Dyer, Ibidem f. 15. b.

So Dyer f. 46. b. I. G. was indited before the Co­ronor of the death of Emelin Gager his wife, and the Inditement was that the ſaid Emelin was in pace domini regis, quouſque ante dictus Iohanes Gager vir prefate Emelin Gager de Hambridge predicta in commi­tatu predicto, Yeoman, and the Inditement was held good, and that there was no defect in the addition, for the word Yeoman could not bee addition to the Feme, though the next antecedent, but muſt neceſſa­rily be referred to the husband, according to the ſenſe and meaning

A Writ brought of reſcuing goods, and denying to pay towle contra pacem, ſhall bee referred to the reſ­couſe and not to the towle 30. E. 3. 15. becauſe in it conſiſted the breach of the peace.

Coke l. 8. f. 119. Adam de Clidrow brought a precipe againſt Iohn de Clidrow, and the Writ was quod juſte &c. reddat manerium de Wincomb & duas carrucatas terre cum pertinentiis in Clidrow, in this caſe the Village of Clidrow ſhall not relate to the Mannor, becauſe it wanteth not it, for a Mannor may be demanded without mention made, that it lyeth in any Village, but cum pertinentiis though it come after the Village relateth to the Mannor, becauſe it wanteth it, Quia verba poſteriora propter certitudinem addita ad priora quae certitudine indigent ſunt refe­renda, 6. E. 3. 12.

Imperſonalitas non concludit nec ligat, Cok. com. 352. b imperſonals doe not conclude or binde, and therefore every eſtopple ought to bee a preciſe affir­mation of that which maketh the eſtopple and not to be ſpoken imperſonally, as if it bee ſaid ut dicitur be­cauſe12 imperſonality doth not conclude any man; for imperſonalitas dicitur quaſi ſine parſona, ibidem.

Negatio deſtruit negationem & ambo faciunt affirma­tionem, Coke Com. f. 146. b. according to Grammati­call conſtruction a double negative maketh an affir­mative, a diſtreſſe was pro infecto ſervicio, the Defen­dant ſaith, quod non fuit infectum, and ruled as good as if he had ſaid it was done, but Grammaticall curio­ſity ſhall not prevaile in like caſes, to avoide a Grant, as upon a Rent charge iſſuing out of Land, the Provi­ſo was, quod non preſens ſcriptum nec aliquid in eo ſpeci­ficatum non aliqualiter ſe extendat ad onerandam perſo­nam meam. Nec non, in Grammatical conſtruction doth make an affirmation, but the Law that principally reſpecteth the ſubſtance doth judge the Proviſo to be a negative according to the intent of the parties, ſo as the ſenſe of thoſe words according to the conſtruction of the Law is, provided that this preſent writing nor any thing therein ſpecified ſhall any way extend to charge my perſon, Coke Com. f. 146. a. b. ſo ibidem f. 223. b. If Lands bee given in taile, ſub conditione quod ipſe nec heredes ſui non alienarent, that he nor his heires ſhall not alien, in legall conſtruction ſhall bee taken negatively, notwithſtanding the double ne­gative.

In disjunctivis ſufficit alterum eſſe verum, Coke lib. 10. f. 59. a. The Biſhop of Sarums caſe, whereas the avowant did avow that the Office ſuperviſoris omni­um maneriorum ſuorum, had been granted to ſuch per­ſon or perſons as it pleaſed the Biſhop, and the De­fendant pleaded in the negative, that the ſaid office had not been granted, but for the life of one; that ex­ception was not allowed, becauſe in that the advow­ant did not alledg that the ſaid office had been gran­ted to diverſe, but onely to ſuch perſon or perſons, and in disjunctives it is ſufficient that one of them be true, ibidem.

So Coke Com. f. 225. a If the condition bee in the disjunctive it is ſufficient to obey either of them, ac­cording to the rule Si plures conditiones aſcriptae fu­rint13 donationi diviſim cuilibet, vel alteri eorum ſatis eſt obtemperare & in disjunctivis ſufficit alterum eſse verum. If many coditions bee annexed to a guift ſeverally or disjunctively it is ſufficient to obey every one or any one; & in disjunctives, it is ſufficient if either of them be true.

Si plures conditiones aſcriptae ſunt donationi con­junctim, omnibus eſt parendum, & ad veritatem copula­tivam requiritur quod utraque pars ſit vera, Bracton lib. 2 f. 19 Coke com. f. 225. a. If many conditions be joyntly annexed to a gift, all of them muſt be obeyed, and to a copulative truth, it is required that every part be true, & in a condition conſiſting of diverſe parts, in the con­junctive both parts muſt bee performed, as if a man give Lands in taile upon condition that if Tenant in Taile, or his heires, alien in fee or in taile &c. and alſo if all the iſſues comming of tenant in taile bee dead without iſſue, that then it ſhall bee lawfull for the Donor and his heires to enter, if tenant in taile in this caſe, or his heires make any diſcontinu­ance, he in the reverſion and his heires may enter af­ter the eſtate taile is determined for want of iſſue, for the reaſon aboveſaid.

But if the condition or limitation bee both in the conjunctive and disjunctive, what then? as a Leaſe to the husband and wife for 21 yeares, if the husband, wife, or any child betweene them ſhall ſo long live, and the wife dieth without iſſue, the Leaſe ſhall con­tinue during the life of the husband, for the disjunct­ive referreth to the whole, and disjoyneth not one­ly the latter part as to the child but alſo to the Ba­ron and feme.

And ſo it is that if an uſe be limitted to certaine perſons until A. ſhall come from beyond the Seas, and attain to his ful age, or die, if he doe come from be­yond the Seas, or attaine to his full age, the uſe doth ceaſe, Coke ibidem f. 225. e.

Grammatica falſa non vitiat inſtrumentum, Reg. I.C. decius, 3. f. 10. mala grammatica non vitiat cartam, & ſenſus abreviationis accipiendus eſt, ut conceſſio non ſit14 inanis Coke l. 9. f. 48. a. falſe latine doth not deſtroy a Deed, or a Charter, and the ſenſe of daſhes, or abreviations is ſo to bee taken, that the grant be not voide, as if the King grant tat. il. mannur. of C. and D. and in truth there is but one Mannor, then thoſe abreviations ſhall bee taken in the ſingular number, totum illud manerium, and if there bee two diſtinct Mannors, then ſhall they bee taken in the plurall number, tota illa maneria, that the grant be not void, and 32. E. 3. A Fine was levied de maneriis B. and H. and the concluſion was quare praedictum manerium B. and H. ingreſſus eſt, and good by averment, that B. and H. were but one Mannor, and though a Writ ſhall abate for falſe Latine, becauſe any one may purchaſe a new Writ at his pleaſure, yet in a grant it ſhall not, becauſe hee cannot purchaſe a new grant at his pleaſure.

As 4. H. 6 f. 16. the Writ was Henricus dei gratia Rex Angliae & Dus Heberniae, whereas it ſhould have beene Dns and for it in congruity the Writ did abate, but in a Deed that ſhould have beene good enough, and ſo in a fine 9. E. 3. warranty was made in a fine eidem galfrido & uxori ſuae, where that ſhould have been iiſdem, and yet good, vide ibidem plura, & Co. l. 11. f. 3. and Coke com. f. 146. ab. but be­cauſe ſuch exceptions doe properly appertaine to Writs, Deeds, and Fines, which have heretofore been compoſed and levied in the Latine tongue, and that by the Act of 9. April. 1651. it is enacted that all Patents, commiſſions, and all proceedings whatſoever, in any Courts of Juſtice within the Common-wealth of England, and which concerne the Law and adminiſtration of Juſtice, be made, and framed into the engliſh tongue. I will ceaſe to heape more caſes upon this rule they being chiefly in uſe, for preterite Deeds, conveyances, and procee­dings, though not altogether uſeleſſe in our Engliſh language, for it alſo hath its grammaticall con­ſtructions, and ſometimes abreviations, and there­fore it is alſo in the above ſaid Act enacted, that15 miſtranſlations or variation in forme by reaſon of Tranſlation or part of proceedings already begun being in Latine, or part in Engliſh, ſhall bee no error or avoide any proceedings by reaſon thereof.

Sect. 3.

THe Law hath little relat ionto Rhetorick, and is too ſtrict an argumentative for that copious, various, and tropicall art.

Ornari res ipſa negat contenta doceri.
Doctum ge­nus in doct­orum homi­num ad do­ceberniam vix docti.

But like ruggid and knotty tymber rejects the rhe­toricall plaine and outward ornament, which moved the critticke Eraſmus to deride it, and the civili­an Hottaman to deſpiſe it, not apprehending the depth and profundity of it, for the Law as Sir Edward Coke is a deep well, out of which every one drawes according to the ſtrength of his underſtan­ding,Cok. com. f. 7.1 a.. he which reacheth deepeſt ſeeth the admirable ſecrets of the Law, which though in the beginning it ſeemeth difficult, yet when the ſtudent diveth to the depth, it is delightfull, and therefore as the ſame Author in another place ſaith, The generous ſtudent,Cok. com. f. 5. a. ought not to bee diſcouraged when he mee­teth with knotty caſes, neſcit enim generoſa mens igno­rantiam pati, but will proceed on his reading with a­lacrity, to know how to worke into with delight, thoſe ruffe Mines of hidden Treaſure,Coke com. f. 235. to which worke as he alſo ſaith, the knowledge of the liberall arts is requiſite, eſpecially the art of Logick to labour in that various and intricate Labyrinth, for it tea­cheth a man not onely by juſt argument to con­clude the matter in queſtion, but to diſcover between truth and falſehood, and to uſe a good method, and reaſonably to ſpeake to any queſtion, for it is no­thing elſe but ars rationandi, the act of reaſoning,Coke com. f. 344. h. and then wee are ſaid to know the law when wee apprehend the reaſon of the law, from whence ariſe theſe grounds and maxims, and firſt from16 nota­tions which by the conſent of all Writers appertaine to Logick.

Notationes ſunt quaſi verae rerum notae Fonſ. log. and Bracton L. 4. c. 20. Ideo impoſita ſunt nomina ut de­monſtrent voluntatem dicentis, & utimur notis vocis mi­niſterio, notations are as it were the true notes of things, ſor therefore were they impoſed that they might demonſtrate the will of the ſpeaker, and wee uſe them as notes in the miniſtry of our Language, as Socage is ſervitium ſocae i.e. carucae, the ſervice of the Plow, becauſe that the word ſoca was uſed for the Plow and the name of the court of Pypowders was derived from the duſty feet of the commers, markets and faires being moſt frequented in Summer, Lam. Arch. ſo religious houſes were called monaſteria, of the ſolitarie life therein led, which in latter daies was nothing leſſe, quia, as one, pleraque monaſteria nihil mi­nus ſunt quam ſolitudines, Dod. ſo the feudiſts in the civill law deduce homagium from hominium, for by that name hee doth profeſſe himſelfe his man and Client.

And ſuch notations and etymologies are not to be wreſted, but muſt bee anſwerable to the ſound of the words, and applied to the ſenſe, of which it is ſaid by Coke com. f. 68. b. that the right interpretations and e­tymologies of words are neceſſary, which not only de­monſtrate their native conceptions, but from them often produced arguments, which are frequent among the Civilians, as well as by the common Lawyers, as Cicero arguing for Opimius, then Conſul, uſeth this no­tation, ſi Conſul eſt qui conſulit patria, quid alius eſt Opi­mius, & Ployden 343 b. Teſtamentum eſt teſtatio mentis, for of thoſe two words is it compounded, and there is no other teſtation of the Teſtators mind here, but for the twelve Acres, in Rigdens caſe, So Cok l. 8. 37. a. a Bar­rator is derived of two legall words, bar which ſigni­fieth the bar in Court where cauſes are debated, and retium which ſignifieth a crime and offence, becauſe a common barrator is chiefely an offendor, in moving and maintaining of quarrels at barres in Courts,17 and Coke l. 10. f. 128. a. reditus dicitur a reddendo quia retro it, to wit to the Leſſor or Donor, and that is the reaſon, that the Rent ſo reſerved is not due before the day of payment, becauſe it is to be ren­dred and reſtored of the iſſues and profits, vide.

Yet as Doderidge, ſuch arguments are not to be uſed at all times, and occaſions, but when neceſſity requireth the ſame, or apt conſequence doth offer a fit occaſion, or rather as Coke l. 7. f. 27. b. Calvins Caſe. Arguments drawn from Etymologys are too weake, or too light for Judges to build there Judg­ments on, yet when they agree with the Judgment of the Law, Judges may uſe them for Ornaments.

From the Predicable.

GEnerale nihil ponit, generale nihil certum implicat, Cok. l. 2. f. 33.34. in Doddingtons Caſe, a genera­lity determineth nothing, and a generality imply­eth no certainty, as if a common perſon be bound to deviſe, or grant all his Lands which he hath with­in the tenure of I. B. in W. the Obligor may ſay that he hath no Land there, for generall words imply no certainty: and with that accordeth 21. E. 4. If a man be bound to be nonſued in all Actions, that he hath againſt him in the Common Bench, he may ſay that he hath no action therein, otherwiſe if the condition be particular to wit that he ſhall be non-ſued in a Formedon, &c. ſo as that it appea­reth, that generall words imply no certainty, nei­ther do they conclude any perſon to ſay that he hath nothing there, vide ibidem plura.

Cok. lib. 8.78. a. Boſpols Caſe. In an arbitrament when the ſubmiſſion is generall of all Actions and Demands, &c. that may well ſtand with the gene­rality of the words, that there was but one cauſe depending in controverſy between them. For ge­nerall ſpeeches imply no certainty, and the awad for one is good, notwithſtanding the generality of the18 words, for though there were many matters in con­troverſy, yet if one onely was made known to the Ar­bitrator, he may make an award of it: For the Arbi­trator is in place of a Judge, and his office is to deter­mine ſecundum alligata, & probata, & the duty of the parties which are greived, and know their particular greifes is to make known the cauſes of controverſy to the Arbitrator, for they are privy to them, and the Arbitrator is a ſtranger, and every one is to do that which lyeth in his knowledge, but when the con­dition is in ſpeciall, and with a proviſo and condi­tion that an award ſhall be made of the premiſes, or words which amount to ſo much, there the Ar­bitrator ought to make Arbitrement of all, or elſe the award is void.

Generalibus ſemper ſpecialia derogant, Reg. f. c. Derg. 180. Quando charta continet generalem clauſulam, poſteaque deſcenit ad verba ſpecialia, quae clauſulae generali ſunt conſentanea, interpretanda eſt charta ſe­cundum verba ſpecialia. f. 134. b. in Edward Althams Caſe. Which rule is almoſt word for word put, and agreed of by both parties, In. 7. E. 3. f. 10. Margery Mortimers Caſe, to wit, where a Deede ſpeaketh by general words, and then deſcendeth to ſpecial words if the words ſpecial agree with the words general, the deed ſhall be underſtood according to the words ſpeciall: As if a man grant a rent in the mannor of P. to be taken in an hundred Acres of Land parcell of that Mannor, with a clauſe of diſtreſſe in thoſe hundred Acres, the Rent ſhall iſſue out of the hun­dred Acres onely, and the generall words ſhall be conſtrued according to the words ſpeciall, ſo if a man grant a Rent and go no further, thoſe generall words ſhall create an eſtate for life, but if the Ha­bndum be for years, that ſhall qualify the words ge­nerall, 7. E. 3. So if a man give Lands to one and his Heirs Habendum to him, and the Heirs of his bo­dy: He ſhall have onely an eſtate tayle, and no fee expectant, for the Habendum qualifieth the generall words precedent, Ployd. f. 541. a. A man maketh a19 Feoffment by Deede to one to have, and to hold to him and his Heirs, and if it happen that the feoffee dyeth without heire of his body, that then the Land ſhall revert: The generality of that gift to him, and his Heires ſhall be corrected by the ſpeciall branch after, ſo as the Donee ſhall have but an eſtate tayle, 13. R. 2. in Formedon.

Dyer 261. b. A man ſeiſed in fee deviſeth all his Lands in one village, and in one of the two Ham­lets by name, and there were two Hamlets in the ſaid Village. The opinion of divers Juſtices was, that none of the Lands in the other Hamlet ſhould paſſe, for it is intendable that the intent, and mean­ing of the deviſor was, that nothing more ſhould paſſe, then what he had expreſſed.

A. acknowledgeth a fine of the mannor of P. with an advowſon, and regrants the mannor with the Appurtenances, the advowſon ſhall not paſſe, Temp. E. 1. F. title grants.

Ployd. 173. b. If I give or leaſe all my Lands to one and ſtay there, he ſhall have all my Lands in England, but if I ſay further, in the manner of Dale there it is now reſtrained, but if the ſpecialty limi­teth a thing which is void, and ſo appeareth, it is otherwiſe, as if I leaſe to one all my Lands in Dale, which I have by deſcent of the part of my mother, and in truth I have no Lands in Dale, which I have by deſcent of the part of my mother, if the Leſſor have other Lands in Dale he ſhall not have thoſe.

Ployd. 160. a. A man giveth Lands to two, Ha­bendum to one for life, and after his deceaſe to the other and his Heirs, the one ſhall have the entier­ly for his life onely, notwithſtanding the Joynture given in the Premiſſes, by the better opinion in terme M. 8. E 3.427.

Generalibus ſempr ſpecialia inſunt, Reg. f. c. Spe­cialls are alwayes contained in the generals, and the univerſalls allwayes comprehend the particular, Ployd. f. 68. a. The plurall number containeth the ſingular and more, and therefore was it reſolved by20 all the Judges: That a pretenſed right and title was within the penalty of the Statute of 32. H. 8. for the buying of pretenſed rights, and titles, for pretenſed rights and titles in the plurall number did containe a pretenſed right and title in the ſingular number. And whereas the Statute of 5 R. 2. c. 5. forbiddeth that none make entry into any Lands, or Tenements unleſſe in caſe where entry is given by the Law, yet if one enter into a Tenement he ſhall be puniſhed, though the Statute ſpeaketh in the plurall number, and likewiſe whereas the Statute of 1. H. 5. ſpeaketh of falſe Deeds in the plural number, yet if one bring but one falſe Deed he ſhall be puni­ſhed by the Statute as it is holden in many Bookes.

Ployd. f. 467. b. The Statute of Glouceſter giveth an Action of Waſte againſt him which holdeth for years, which is ſpoken in the plural number, yet may it be taken for him which holdeth for a year, or half a yeare, vide ibidem plura. Generalis clauſula non porrigitur ad ea, quae ſunt ſpecialiter comprehenfa, Coke l. 8. 118. b. It is a ground and maxime in the Law, that a generall clauſe is not extended to thoſe things, which are ſpecially comprehended, Doctor Bonhams Caſe, by the Statutes of 10 & 14. H. 8. it was enactd, that no man ſhould exerciſe the fa­culty of Phyſike within the City of London, or within ſeven miles of the ſaid City unleſſe he be ad­mitted thereunto by the Preſident, and Colledge of the faculty of Phyſike, and there is another ſpeciall clauſe contained in the ſaid Acts, that any who evil­ly and not well exerciſe the ſaid faculty, &c. ſhall be puniſhed by Fine and impriſonment, &c. and it was adjudged that the ſaid generall clauſe, that none ſhould exerciſe the ſaid faculty of Phyſike, unleſſe he be admitted, &c ſhall not be extended to the ſpeciall clauſe for the puniſhment of fine and impriſonment, &c. but that it ſpecially ſhall be li­mitted to ſuch onely as did offend only in not well executing and uſing the ſaid faculty of Phyſike, for a generall cl••••is not to bee extended to thoſe21 things are ſpecially comprehended, ſo 34. Eliz. f. 120. ubi A. ſeiſed of the mannor of Stable in O. in the county of S in fee, and alſo of other lands in the ſaid O. in fee, ſuffereth a common recovery of all, and declareth the uſes by Indenture, that the recoveror ſhall ſtand ſeiſed of all the lands and te­nements in O. to the uſe of him and his wife, and the heires of his body, and dieth, and after his death the wife entreth into the ſaid Mannor, by form of the ſaid generall wordes, but it was adjudg­ed that thoſe generall worddid not extend to the Mannor which was ſpecially named.

Coke l. 4. f. 8. b. Nokes caſe, clauſula generalis non refertur ad expreſſa, a generall clauſe is not re­ferred to thoſe things are expreſſed, as where the Aſſignee of a Leaſe ſhall have a Writ of Covenant upon thoſe wordes demiſe, and grant, yet if there be an expreſſe covenant that the Leſſee ſhall enjoy it without eviction of the Leſſor, or any claiming un­der him, this expreſſe Covenant qualifieth the ge­nerallity of the covenant in Law, and reſtraineth it by mutuall conſent of both parties that it ſhall not extend to the aſſignee.

Clauſula generalis non porrigitur ad ea quae antea ſunt ſpecialiter comprehenſa, Coke, l. 4 131. l. 4. when the deed at the firſt containeth ſpeciall wordes, and then concludeth in words generall, both the wordes as well generall as ſpeciall ſhall ſtand, as Lands given to one and the heires of his body, Habendum to him and his heires, hee hath an eſtate taile, and a fee ſimple expectant, for as Dier. f. 56. b A deed by wordes ſubſequent may bee qualified and abridged, but not deſtroyed.

Doloſus verſatur in univerſalibus & generalibus.

Coke l. 3. f. 8. a. Twins caſe, it is one of the Enſignes of fraude in a Deed of gift, if the gift is generall without the exceptions of his apparell or any thing of neceſſity, for it is commonly ſaid that the frau­dulent is converſant in generalls.

Coke l. 3. f. 57. b. Specots caſe, A Biſhop ought22 not to ſhew a generall cauſe for the refuſall of a Clark, as that he is criminoſus, or non idoneus, for they are too generall, and the fraudulent is exer­ciſed in generalls, and therefore ſo incertaine that no iſſue can be taken of them, as 2. E. 3. f. 6. The heire ought to alledge ſome certaine cauſe of refu­ſall, whence iſſue may be taken.

Generalia ſunt praeponenda ſingularibus, it is a rule in the Regiſter, that in a Writ the generall ſhall bee put in demand, or plaint before the ſpeciall, as the Meſuage before lands, the Land before Meadow, Mea­dow before Paſture, and Paſture before Wood, and Wood before Juncary, F. a. b. f. 2. E.

Ex verbo generali aliquid excipitur, Coke com. f. 47. a. An exception is part of the thing granted, and in eſſe as exceptis, ſalvo, praeter, and out of a generall, a part may be excepted, as out of a Mannor an acre, but not a part out of a certainty, as out of 20, Acres one, Ployd. f. 361. a. A Leaſe of all my Lands in D. except white acre, is void for white acre, and a gift of all my horſes except my black horſe is void for my black horſe.

Coke l. 10. f. 101. b. quando verba ſtatuti ſunt ſpecialia ratio autem generalis, generaliter flatutum eſt intelligendum, where the words of a ſtatute are ſpeciall and the reaſon generall, the ſtatute is ge­nerally to be underſtood; as the reaſon of the ſtatute of 23 H. 6. whereby it was ordeined that no She­riff ſhould take any obligation by colour of their office, but onely to themſelves, and upon conditi­on that the Priſoners appeare at the day contai­ned in the writ, was for the avoyding of extorti­on and oppreſſion, and therefore is to receive a benigne and favourable conſtruction, and that in e­quity not only a bond but an aſſumpſit is within the reaſon of that ſtatute; and ſo was it adjudged 27. Eliz. Trin. in the Kings Bench betweene Danhigh and Hothcot, that if a Sheriff or Goaler for eaſe, or enlargement of any who is in his cuſtody, doth take a promiſe of him to ſave him harmeleſſe, that though the ſtatute doth onely ſpeake of an obliga­tion,23 yet it is in equall miſchiefe, otherwiſe as Wray chiefe Juſtice ſaid, the ſtatute ſhould ſerve for little or nothing.

Multa tranſeunt cum univerſitate, quae per ſe non tranſeunt, Coke com. f. 142. a. If a man ſeiſed of land as heire of the part of his mother, make a gift in taile, or a Leaſe for life reſerving a rent, the heire of the part of the Mother ſhall have the re­verſion, and the rent alſo as incident thereunto, for many things paſſe with the generallity which by themſelves doe not paſs, ſo if a man hath a rent-ſeck of the part of his mother, and the Tenant of the Land grant a diſtreſſe to him and his heires, and the Grantee dieth, the diſtreſſe ſhall goe with the rent to the heire of part of the Mother, as inci­dent and appertenant to the rent, for now is the rent-ſeck become a rent charge.

Singulare diſtributive ſumptum e aquat plurali, Dier. 328.. b. a ſingular diſtributively taken, equalleth a plurall, as in an aſſiſe, the Plaint is of two Acres of Land, the Tenant pleads two barrs ſeve­rall for the two Acres at large, and the Plaintiffe makes two ſeverall titles at large, to wit for eve­ry acre one, the Tenant pleades, let the aſſiſe come upon the title in the ſingular number, and the aſ­ſiſe found one title for the Plaintiff and the other for the Defendant againſt the Plaintiff, and judge­ment was given that the Plaintiffe ſhould reco­ver for one Acre, and be barred for the other.

Coke l. 10. Br. Lifiels caſe, A Leaſe is for one yeare, and that if they agree, the Leſſee ſhall have the Land for three yeares, rendring, during the ſaid terme ten pounds yearely, this reſervation go­eth to both termes.

Propria res eſt, quae ſolius eſt, ſive uni ſoli conve­nit, Tholoſſ. Syntag. lib. 5. c. 1. A propriety is that which is one mans onely, and appertaineth onely to one man, Ploid. f. 308. b God made man the Sove­raigne over all living creatures, and gave the rule of them all to man, Terram ddit filiis hominum, and24 ſo men by the endowment of God were made Lords of the earth and poſſeſſors of all things in the earth, but how much land or things upon the earth one man ſhall have and how much another, God hath leaſed to man by lawes by them to bee made and provided, and by ſuch lawes in every Realme and Country they are provided and divided, and every man holdeth his Lands and things by the Lawes of the Land wherein hee liveth, and this commonly called the law of proeprty.

Nihil dat quod non habet, Ariſt. nemo poteſt plus juris in alium transferre quam ipſe habet, Coke com. f. 309. b it is a common erudition in the Law, that no man can grant that hee hath not, Perkins f 15. for that is requiſite that he who by his contract ſhall make another poſſeſſor of any thing, ſhould bee the prorietor of the thing it ſelfe, otherwiſe his con­tract is void, Ployd. f. 432 b. as if I poſſeſſed of an horſe, ſell the Horſe upon condition to another, that he pay to mee at the feaſt of Chriſtmas forty ſhillings for it, and before the ſaid feaſt I ſell the horſe to another, and after the feaſt, the firſt Ven­dee failes of payment, by which I reſeiſe the horſe, the ſecond Vendee ſhall not have the horſe, for at the time of the ſecond contract I had neither inte­reſt nor property nor poſſeſſion of the horſe, but onely a condition which is not ſufficient to make me able to contract for the property and poſſeſſion, therefore it is meerely void, Ployden.

So if a man grant a rent charge out of the Mannor of Dale, and in truth he hath nothing in the Man­nor of Dale, and after purchaſeth the Mannor of Dale, yet hee ſhall hold it diſcharged, Perkins H. 15. So if one not ſeiſed of Lands, maketh a Leaſe to another, it is a good Plea for the Leſſee to ſay that the Leſſor had nothing in the Tenements at the time of the Leaſe Litt. and the reaſon of this is for that in every contract there muſt be, quid pro quo, for contractus eſt quaſi actus contra actum, and therefore if the Leſſor had nothing in the land, the25 Leſſee hath not quid pro quo, nor any thing for which he ſhould pay his Rent, and in that caſe he may plead that the Leſſor non dimiſit, Coke Com. ibidem f. 41. b. vide ibidem plura.

If the Conuſee of a Fine, before any Attorne­ment, bargaineth and ſelleth the Signiory to ano­ther, the Bargainee ſhall not diſtraine, becauſe the Grantor could not diſtrain, for no man can transfer more right to another then he himſelfe hath, Coke Com. 309. b.

Coke l. 6. f. 57. b. He that hath no ſeiſin in the Land charged cannot give ſeiſin of Rent, vide plura Bredimans; for no man can give that he hath not.

The King pardoneth one for making a bridge, this is onely good for the fine, and he muſt make up the Bridge, becauſe the Kings Subjects have intereſt in it, 37. H. 8.4.

Da tua dum tua ſunt, poſt mortem tunc tua non ſunt, Ployd. 280. a. when one hath property in goods, the property cannot be in him no longer then he liveth, for after his death the goods belong unto another.

Nemo videtur rem amittere cujus propria non fuit Reg. I. C. no man can looſe that of which he hath no property, and therefore in a Replevin if the De­fendant claim property, the Sheriff cannot proceed, for it is a rule in Law, the property ought to be try­ed by writ, and therefore in this caſe where the try­all is by plaint the Plaintiff may have a writ de pro­prietate probanda directed to the Sheriff to trye the property, and if thereupon it be found for the Plain­tiff, the Sheriff ſhall make deliverance, Coke Com. f. 145. b. F. n. b. f. 77. If A. endict B. for ſtealing of Horſes, or other goods he muſt ſay de bonis, & ca­tallis cujusdam, A. For if there were no property there could be no ſtealing, or injury, for nemini vim facere videtur, qui ſuo, & non alieno utitur, Reg. I. c.

Nemo reditum invito domino percipere, & poſſide­re poteſt, Coke Com. 303. b. no man can receive, or poſſeſſe another mans Rents againſt the will of the Lord, as if one hold of me by Rent, which is ſervice26 ingroſſe, and another which hath no right, claimeth the rent, and receiveth it of my Tenant by coertion of diſtreſſe, or otherwiſe, yet by the payment of my Rent to a ſtranger, I cannot be diſſeiſed, or ouſted without my will or election, but that I may diſtrain my Tenant for the Rent, or have an aſſize againſt theernor, Lit. for a man cannot be diſſeiſed of a a Rent-ſervice in groſſe, Rent-charge, or Rent-ſeck, by Attornment or payment of Rent to a ſtranger, but at his election, for the rule of the Law is, no man can receive, or poſſeſſe an other mans rent againſt his will, Coke ibidem.

Quod meum eſt id amplius meum eſſe non poteſt. Coke Com. f. 49. b. And therfore if leſſee for years, enter, he is in actuall poſſeſſion and then Livery cannot e made to him, that is in actual poſſeſſion, whereby the Franke-Tenement or fee may inure to him in the remainder, for that which is once mine cannot be more mine, ibidem.

Thirdly, From the Anteprecedents. Aequivocum and Univocum.

AEQuivocum denoteth words of ambiguous, and many ſignifications, which as Boetius, ſignifies nothing, niſi ad quaſque res ſecundum voluntatem ſignificantis applicetur, unleſſe they be applyed to the thing according to the will of him that declareth, or expoundeth them, of which the Law taketh no­tice, and giveth theſe grounds, and maximes,

Nobiliores, & benigniores preſumptiones in dubijs, ſunt praeferendae, Reg. P. C. And Coke l. 4. f. 13. b. Be­nignior ſententia in rebus generalibus, & dubijs eſt praeferenda. In doubtfull ſpeeches, and ſentences, the more favorable preſumption, and opinion is to be perferred. As if one doth charge another that he hath forſworne himſelfe, by the Law it is not actionable, for it may be he hath forſworne himſelf in uſuall converſation, but an action is onely main­tainable27 againſt him that hath forſworn himſelf in Court of Record, ſo ibidem f. 21. An Action upon the caſe was brought for theſe wordes, for my Lands in Dallinſon they ſeek my life, adjudged not action­able becauſe he may ſeek his life upon juſt cauſe, which are the more favorable conſtructions.

So verba accipienda ſunt in meliori ſenſu. Hub. f. 106. Coke l. 4. f. 13. Wordes are to be taken at the beſt for the ſpeaker, though ſome of them cannot ſtand with that con­ſtruction. As, thou art a Theefe, and haſt ſtolen a Tree, it ſhall be adjudged of a Tree ſtanding, not felled which is not actionable.

But as it is ſaid, there in Hubberd 106. This rule holdeth not in Deeds, and Pleas, for in thoſe words are taken more ſtrongly againſt the ſpeaker, of which this reaſon may be given, becauſe commonly words in common language proceed of a ſudden from cho­ler and heat, whereas words in Deeds and Pleas are grounded upon mature deliberation, and conſidera­tion, and therfore in Deeds this is a general ground. Ambiguum pactum contra venditorem interpretan­dum eſt, Reg. I. C. and Ambigua verba contra profe­rentem accipienda ſunt, Bacon Eliz. f. 11. As if I de­miſe omnes boſcos meos in villa de Dale for years, this paſſeth the ſoile, 14. H. 8.28. H. 8. Dyer 17.

And if I ſowe my Land with Corne, and let it for for yeares, the Corne paſſeth to my Leſſee.

And if I grant ten pounds rent to Baron and Feme, and if the Baron dye the Feme ſhall have three pounds rent, becauſe theſe words reſt ambig­uous, whether I intend three pounds by way of ad­dition, or three pounds by way of deduction out of the rent of ten pounds, it ſhall be taken ſtrongeſt a­gainſt me, that it is three pounds addition to the ten pound; of which more hereafter.

So Coke fol. 303. b. Ambiguum placitum interpre­tari debet contra proferentem. An ambiguous Plea ſhall be taken ſtrongeſt againſt the pleader, for every one is preſumed to make the beſt of his own Caſe, and Coke l. 10. f. 50. Ambigua reſponfio contra pro­ferentem28 eſt accipienda, the Biſhop of Sarums Caſe, vide ibidem.

In obſcuris ſecundum magis ſimilius eſt judicandum, vel quod plerumque inſpici ſolet. Regula. I. C. and Coke l. 4.13. & 14. Senſus verborum ex cauſa dicendi accipiendus eſt, & ſermones ſemper accipiendi ſecundum ſubjectam materiam. In obſcure and dark ſayings we are to judge according to that which is moſt likely, and which is wont to be, and the ſenſe of the words is to be collected from the cauſe of the ſpeech, and to be taken according to the ſubject of the matter. which rule ſeemeth to qualify, and moderate the o­ther two, vide ibidem. S. Cromwells Caſe, as firſt in words, the Plaintiff bringeth an action upon the caſe for calling of him Murderer, to which the De­fendant ſaid that as he was ſpeaking with the Plaintiff concerning unlawfull hunting, the Plain­tiff confeſſed that he had killed diverſe Hares with Engins, to which the Defendant anſwered that he was a murtherer, innuendo a murtherer of Hares, and it was reſolved that the juſtification was good, for upon an action of ſlander the likelieſt ſenſe of words is to be taken, and collected out of the occa­ſion of the ſpeech, Coke ibidem.

And ſo in Deeds, as if I have a free Warren in my land, and let my Land for life, not mentioning the Warren, yet the Leſſee by implication ſhall have the Warren, 32. H. 6. which is the more likely meaning, for otherwiſe the Leſſor would have ex­cepted the Warren.

Ʋnivocum denoteth words of a certaine and diſt­inct ſignification and expreſſeth the thing cleerly without any obſcurity, or Ambiguity of which the Law taketh eſpeciall notice, for that certainty in all contracts, and conveyances is the cauſe of quiet and ſetlement of eſtates, but incertainty is the au­thor of variance, and diſſention, from whence we have theſe notable grounds and maximes.

Miſera eſt ſervitus ubi jus eſt vagum, Coke l. 5. f. 42. a. God forbid that the inheritances of men ſhould29 depend upon incertaines, and it is a miſerable ſer­vitude where the Law is wavering, and therefore Ployd. f. 28. a. In every Common-wealth it is neceſ­ſary and requiſite that things ſhould bee certaine­ly conveyed, for certainty engendreth repoſe, and incertainty contention. The occaſions of which contention, our Law foreſeeing hath prevented, and therefore ordained that certaine ceremonies ſhould be uſed in the tranſmutation of things from one man to another, and namely of Frank-tene­ments which are of greateſt eſtimation in our lawes, to know the certaine times, when things do paſſe, and therefore in every Feoffment, the Law ordei­neth that livery and ſeiſin ſhall bee made, and in every grant of a reverſion or rents that attornement ſhould be made, which are points certaine contai­ning time, wherefore it is well obſerved by Sir Ed­ward Coke in his Preface to the ſecond part of his Reports, that in all his time there have not beene moved in the Courts of Juſtice of England, two queſtions touching the rights of deſcent, eſcheats, or the like fundamentall points of the common-Law, ſo certaine, ſure and without queſtion are the principles and grounds thereof. That as Sir John Davis in his preface, there is no art nor ſci­ence which ſtandeth upon diſcourſe and reaſon, which hath her Rules and Maxims ſo certaine and infallible, and ſo little ſubject to diverſe interpre­tations as the common Law of England. Whence Sir Edw. Coke is bold to pronounce that the Common Law of England is not incertaine in the abſtract, but in the concrete, and that the incertainty thereof is hominis vitium non profeſſionis, the imperfection of man and not of the profeſſion, and lib. 6. f. 43. a. in particular blameth hee the ſubtile inventi­ons, imaginations of men in the practiſe of uſes, which have introduced many miſchiefs & inconve­niences, contrary to the ancient common law, which hath certain rules to direct the eſtates and inheri­tances of men, and therefore is it without compa­riſon30 better to have Eſtates and Inheritances directed by the certaine rule of the common Law, which harh beene the ancient, true and faith­full ſervant to this Common-wealth, then by in­certaine imaginations and conjectures of any of thoſe new inventors of uſes without any approved ground of law or reaſon, Coke l. 6. f. 43. a.

And therefore in all caſes law and equity will that incertainty bee avoided, as the author of con­tention, and that there bee an end of all contro­verſies according to equity and right, which is the finall intention of all Lawes, Coke l. 8. 53.

And Coke l. 1. f. 85. a. The Judges ought to know the intention of the parties by certaine and ſenſible words which are agreeable and conſonant to the rules of Law, as if Land bee given by deed to two, to have and to hold to them and haeredibus, it is void for the inſenſibility and incertainty, and though it hath a clauſe of warranty to them and their heires, that ſhall not make the firſt wordes which are incertaine and inſenſible to bee of force and effect in Law, although his intent appeareth, but his intent ought to bee declared by words cer­tain and conſonant to Law.

So Coke comment. f. 20. b. If a man letteth Lands to A. for life, the remainder to B. in taile, the re­mainder to C. in forma praedicta, the remainder is void for the incertainty.

And therefore Ployd f. 272. a. giveth this ground, that every contract ſufficient to make a Leaſe for yeares, ought to have certainty in three limitations, in the beginning of the terme, in the continuance, and in the end of the ſame, all which ought to be known at the beginning of the Leaſe, and the Leaſe that wanteth them, Mr. Brown, ſaid is but bibble bab­ble, vide ibidem Fullers caſe, and Coke l. 6. f. 35. the Biſhop of Bathes caſe.

Ployd. f. 14. a. If I give all my mony in my purſe to I. S. hee cannot have an action for it, unleſſe hee alledge the certainty of it, ſo as without certainety31 the action is not maintainable according to the rule given by Bracton, incertae rei nulla eſt donatio, l. 5. c. 4. Ployd. f. 273. b. If a Leaſe bee made untill I. S. who hath execution of a Statute Marchant, is ſatiſ­fied of the duty for which hee hath ſued execution, this is not a good Leaſe and ſhall not bee called a terme for yeares, for it is not certaine how long the Leaſe ſhall endure, either for ſix years or for twelve yeares, ſo there is an incertainty of time at the end of the Leaſe, for a terme containeth certainty.

So if a Leaſe bee made from three yeares to three yeares, and ſo from three yeares to three yeares due­ring the life of I. S. it ſhall bee but a Leaſe for ſix yeares, for for ſix yeares there is certainty, and when he ſaith, and ſo from three yeares to three yeares it is all one as if hee had ſaid the firſt three yeares, during the other three yeares, which con­taineth certainty, but when hee goeth further and ſaith, and ſo from three yeares to three yeares, for the life of I. S. that containeth no certainty in it, for it is incertaine how many three yeares I. S. ſhall live, ſo that in the beginning the end is not knowne of the number of yeares intended, which is contrary to the nature of a Leaſe for yeares, Coke comm. f. 45. b. and Browne, and Dier ſaid it had beene ſo adjudged, vid. ibid. Ployd. ſaies, and Fullers caſe. So if a parſon maketh a leaſe of his glebe for ſo many yeares as he ſhall be parſon there, this cannot be made certaine by any meanes, for no­thing is more uncertain then the time of his death, terminus vitae incertus eſt, & quanquam nihil eſt certius ipſa morte, nihil tamen incertius eſt hora mortis, Coke com. 45. b.

A grant to I. S or I. N is void for the incertainty, and if it bee delivered to I. S. the delivery of the deed will not make a voide grant good. 11. H. 7. 13. Noy. Max. f. 67.

Coke com. f. 310. b. If a reverſion be granted for life, and after it is granted to the ſame grantee for yeares, a••he Leſſee attorne to both grants, they32 are void for the incertainty. So if the Lord by Deed granteth his ſigniory to I. Biſhop of London, and his heires, and by another Deed to I. Biſhop of London, and his Succeſſors, and the Tenant at­torneth to both grants, the attornment is void for both grants, for albeit the grant bee but to one, yet hee hath ſeverall capatities, and the grants are ſe­verall, and the attornment is not according to ei­ther of the grants, ibidem.

A gift made to one of the Infants of I. S. is void for the incertainty 11. E. 41. and Dier. f. 91. A grant is made for ſo many trees as may bee reaſo­nably ſpared, it is void for the incertainty, for who ſhall bee judge of the ſparing, the Vendor or the Vendee, and it ſeemeth that neither of them, yet by common intendment, the Vendor hath moſt knowledge which may bee ſpared. So if I bargaine with you that I give you for your Land ſo much as it is reaſonably worth, it is voide for default of cer­tainty.

So a grant ſeniori & digniſſimo filio is void for the in­certainty, for ſome will ſay that he who is moſt lear­ned and knowing is the moſt worthy man, and ſome will ſay the moſt valiant man, and ſome the moſt liberall man, and ſo the multitude can never agree.

Scinditur incertum ſtudia,••ontraria vulgus.

And by that the moſt potent man was alwaies preferred which is contrary to all Lawes, inde datae leges ne fortior omnia poſſit, Dav. l. 33.36. caſe of Taniſtry vide.

Coke com. So a releaſe doth not diſcharge Bayle before judgement becauſe it is contingent, and in­certaine.

Coke l. 5. Samons caſe. B. in conſideration of ſix l. aſſumes to pay twenty pound to A. If hee doe not performe the award of I. S. which was that hee ſhould enter in obligation to A. that A. and his wife ſhould enjoy the Lands were in controverſie between them. B. would not enter into obligation, and it was adjudged the award was voide, for the33 incertainty becauſe it doth not appeare of what ſumme the obligation ſhould be, for the Arbitrators are Judges, and their award muſt be certaine to de­cide the controverſie.

Certum eſt quod certum reddi poteſt, Coke com. f. 43. b.

Though it be Bractons rule Terminus annorum debet eſſe certus & determinatus, as in every leaſe for years the terme muſt have a certaine beginning and a certaine ending, yet allbeit there appeare no cer­tainty of yeares in the Leaſe, if by reference to a certainty, it may be made certaine, it ſufficeth, for that is certaine which may be made certaine. As if A. leaſeth his Lands to B. for ſo many yeares as B. hath in the Mannor of Dale, and B. hath then in the ſaid Mannor a terme for ten yeares, this is a good Leaſe to B. for ten yeares.

If a man make a Leaſe to I. N. for ſo many yeares as I. N. ſhall name, this at the beginning is incer­taine, but when I. N. hath named yeares then is it a good Leaſe for ſo many yeares Ployd. f. 273. b.

For it is my demiſe and my contentment that hee name the yeares, which by my reference to his nomination, is as much as if I my ſelfe had named. But if a Leaſe bee made for ſo many yeares as my Executors ſhall name, and then I die, and my Ex••••s name the yeares, the Leaſe ſhall not bee good, becauſe they neither did nor could name the yeares during my life ibi­dem.

So if I make a Leaſe untill I. S. who is in Priſon for hunting, ſhall be in Priſon for it by order of Law, that is all one as if hee had made the Leaſe for two yeares, for by the ſtatute of W. 1. c. 10. hee ſhall bee impriſoned ſo long, ſo if I make a Leaſe for yeares, rendring five pound rent by the yeare, and then I grant the rent and reverſion to another untill hee hath received of the rent twenty pound, that is all one as if I had granted the reverſion for four yeares, and therefore the Leaſe containeth ſuch certainty34 of time by the reference. So if a Leaſe bee made during the nonage of I. S. who is of the age of fif­teen yeares, it is a Leaſe for ſix yeares, if I. S. live ſo long, for the reference to the time certaine, is as much as if hee had expreſſed the nomination of the time contained in the reference. So if I make a Leaſe for ten yeares, and ſo from ten yeares to ten yeares, during a 100. yeares it is a good Leaſe, Ployd. ib. E. Coke l. 6. f. 20. The Biſhop of Bathes caſe. So a Leaſe for years after the Leſſee ſhall make ſuch an act is good, ſo a Leaſe for twenty yeares if the coverture betweene I. S. and his wife continue ſo long, although in one caſe, it was incertaine when the Leſſee would doe the act to make the Leaſe to begin, and in the other it was incertaine when the coverture would bee diſſolved, for a leaſe certainely lymited might begin, and determine upon uncer­tainety well enough, Ployd. ib.

If a man maketh a Leaſe for twenty one yeares, if I. S. live ſo long, this is a good Leaſe, if I. S. ſo long live, yet it is certaine in incertainty, for the life of I. S. is incertaine, Coke com. f. 25. b.

It is a Maxime in the Law, that no diſtreſſes can be taken that are not put into certainty, nor can be reduced to any certainty, for, id certum eſt, quod certum reddi poteſt, as the Lord cannot diſtraine them which hold their Tenements in Frankalmoine, if they will not doe ſuch divine ſervice, becauſe it is not put in certaine what ſervice they ſhall do, nei­ther can it bee reduced to a certainty, for upon an avowry damages cannot bee recovered, for that which neither hath certainty, neither can bee redu­ced to any certainty, and yet in ſome caſes there may bee a certainty in uncertainty. As a man may hold of his Lord to ſheare all the ſheep depaſturing in his Mannor, although the Lord hath ſometimes a greater number and ſometimes a leſſer number, yet this is certaine enough, the incertainty being re­ferred to the Mannor which is certaine, and the Lord may diſtraine for this incertainty, Coke com. f. 96. a.

35

Incertainty may bee reduced to a certainty by matter, ex poſt facto, Ployd. f. 6. a. b. Raingers caſe. As a Leaſe for yeares rendring for every acre twelve pence, though the number of Acres bee not certaine by the Leaſe, yet by admeaſurement or other triall may the rent reſerved bee certainely knowne, by which he may bring his action of debt.

So if one gives two Acres to one Habendum, one for life, and the other in fee, it is incertaine, in which he ſhall have the fee, and which for life, yet if after hee make Feoffement of one acre, it ſhall bee ſaid to have fee, in the other ab initio, ſo if one ſell W. Acre, and B. Acre for life, the re­mainder of one of them in fee, it is incertaine which Acre hee in the remainder ſhall have, but if hee licence the Tenant for life to cut downe the trees in white Acre, then hee ſhall bee adjudged to have the remainder of that Acre ab initio. So 14. H. 8. f. 17. A grant of a terme upon condition that the Grantee ſhall obtaine the favour of the Leſſor, and pay ſo much as I. S. ſhould arbitrate, was good when the condition was performed, and the ſe­cond grant adjudged void. So 17 E. 4. f 1. in trespaſſe for corne taken, there the Defendant & the Plaintiff had bargained, & agreed that the Defendant ſhould go to the place where it grew and ſee the corne, and if it pleaſed him upon the ſight, that then hee might take it, paying to the Plaintiff forty pound for eve­ry Acre, and it was holden a good contract not­withſtanding the incertainty and quantity of the Corne, and of the groſſe ſum ſhall bee paid for it, becauſe upon the circumſtance the certainty might appeare, Ployd. ibidem.

Dyer. f 91. b. If I bargaine with you that I will give you for your Land as much as it is reaſonably worth, and it is referred to the judgement of a third perſon, hee ſhall ajudge it and then it is good, ſo if I ſell trees which then may eaſily be ſpared, and re­fer the judgement of the ſparing to a third perſon, if hee give judgement of it, it is good enough, be­cauſe36 by him it is reduced to a certainty with the Vendors conſent.

In our law the time, the eſtate, the thing, and the perſon not being ſufficiently expreſſed, by neceſſa­ry coherence and relation to matter precedent, they are ſometimes made certaine enough, firſt for the time, if I. S. is bound to mee in twenty pound upon condition that I infeoffe him of B. Acre, that then hee will pay mee ten pound, if I infeoffe him pre­ſently after, hee ought to pay the ten pound not­withſtanding there is no time limited when it ſhould bee paid, for Perkins puts the rule, if a con­dition hath a relation to the Act precedent, and no time is limited when it ſhall bee done, it ought to be done, when the Act precedent is done.

Secondy for the thing, though it bee put incer­tainly, yet the communication precedent makes it certaine, Dier. 42. a. where one was bound to war­rant I. G. and doth not ſhew what thing hee ſhould warrant, the Law ſhall make conſtruction that hee ſhould warrant the land of which communication was made.

Thirdly, for the eſtate though it bee uncertaine, yet ſometimes it is made certaine by the matter precedent, as ſteward-ſhip was granted for life, and afterwards an annuity was granted for the ex­erciſe of that office, without declaring what eſtate hee ſhould have in the annuitie, and reſolved that he ſhould have the annuity for life, becauſe he had the Office for life, Coke l. 8.

Fourthly, for the perſon, the conſideration ſome­times aſcertaines the perſon, and therefore if lands be given to one by deed, Habendum ſibi una cum fi­lia donatoris, in frank marriage, this ſhall enure to both, becauſe the feme is cauſa donationis, and by de­vorſe ſhee ſhall have the whole Land, and ſhall bee given together to the man for the ad­vancement of the woman, Dier. 126. a. A man by intendment of Law the Land and the woman deviſeth that his lands ſhall bee ſold for the pay­ment37 of his debts, and doth not ſay by whom, they ſhall be ſold by his Executors, becauſe they are lyable for the payment of his debts.

Licet id certum eſt, quod certum reddipoteſt id tamen magis certum eſt quod de ſemetipſo eſt certum. Coke l. 9. 47. a. The Patents of the King ought to be extended certainely to the thing of which the Pa­tentee will take advantage, as 2 R. 3. 7. If the King grant to me that I ſhall not be High-Sheriff without ſhewing of what County, it is void for the incertain­ty. Quia conceſſio per Regem oportet fieri de certitudine, but if the grant was that he ſhould not be Sheriff