A philologicall commentary, or, An illustration of the most obvious and useful words in the lavv with their distinctions and divers acceptations, as they are found as well in reports antient and modern as in records and memorials never printed : usefull for all young students of the law / by Edward Leigh ...

M.

MAGISTRATE.

MAgistrate, he is custos utriusque tabulae the keeper or preserver of both Tables of the Law.

If any Magistrate or Minister of Iustice in ex∣ecution of their Office, or in keeping of the peace, according to the duty of their office, be slain, this is murder, for their contempt and disobedience to the King and the Law; for it is contra potestatem Regis & Legis. If the Sheriff, a Iustice of Peace, the chief Constable, Watchmen, or any which come in their aid, be killed in doing of their Office, this is murder. For when any of the Kings* 1.1 Officers by process of Law (be it erroneous or not) arresteth another in the Kings Name, or re∣quire the disturbers of peace to keep peace in the Kings Name, and they disobey tho Kings Com∣mand and kill him, reason requireth that this kil∣ling should be an offence of the highest degree in this nature, and that is murder of malice pre∣pensed.

MAIME.

Maime, (membri mutilatio or obtruncatio) is a* 1.2 corporall hurt, whereby one looseth a member, by reason whereof, he is less able to fight, as by put∣ting out his eye, beating out his foreteeth.

This offence of maim, is under all felonies de∣serving death, and above all other inferiour offen∣ces,* 1.3 so as it may be truly said of it, that it is inter

crimina majora minimum, & inter minora maximum. Vita & membra sunt in potestate Regis. The li••e and members of every subject are under the protection of the King.

In my Circuit (saith Sir Edward Cook) in an∣no* 1.4 11. Iacobi Regis, in the County of Leicester, one Wright, a young, strong, and lusty Rogue, to make himself impotent, thereby to have the more colour to beg, or to be relieved without putting himself to any labour, caused his companion to strike off his left hand, and both of them were indicted, fined and ransomed therefore.

The cutting of an ear or nose, or breaking of the hinder teeth is no maim, but rather a deformity of body, than diminution of strength; by a maim a member is hurt, or taken away, and the party thereby so hurt is made unperfect to fight.

The party shall recover only dammages in* 1.5 maim.

MAINPRISE.

Mainprise, manucaptio is compounded of two French words, main, id est, manus a hand, and* 1.6 prins, id est, captus taken, as it were taken into their hands. It signifieth in our common Law, the taking or receiving a man into friendly custody, that otherwise is or might be committed to prison,* 1.7 upon securtiy given for his forth-coming at a day assigned.

Such are called Mainpernours, because they do receive him into their hands.

MANNOUR.

Mannour, manerium est nomen collectivum & ge∣nerale, it comprehendeth Houses, Lands, Gardens,* 1.8 Trees, Rents and Services: Manerium quasi manu∣rium, because it is laboured with handy work by the Lord himself; or it may come from the French

word manoir, id est, mansions; because the Lord* 1.9 remaineth there, and hath his house which is cal∣led, the principall house of the Mannour. It can∣not be a Mannour unless there be a Court Baron belonging to it, and be time out of mind: it con∣sists of demeans and services, if they be severed, the Mannour is destroyed.

MAINTENANCE.

Maintenance, manuten••ntia is derived of the verb manutenere, and signifieth in Law a taking in hand,* 1.10 bearing up or upholding of Quarrels, and sides, to the disturbance or hinderance of com∣mon right, culpa est rei se immiscere ad se non per∣tinenti.

When one laboureth the Jury, if it be put to ap∣pear, or if he instruct them or put them in fear, or the like; he is a maintainer, and an action of maintenance lyeth against him.

Manutenentia est duplex, 1. Curialis, in Courts of* 1.11 Justice, pendonte placito.

2. Ruralis, to stirre up and maintain complaints, suits, and parts in the County other then their own, though the same depend not in plea.

MANUMISSION.

Manumission, manumitter, which signifieth to make free, is properly to send one out of his hand, because so long as a slave continues in his servitude, he is in the hand of his Master.

MARRIAGE.

Marriage, A feme covert is not sui juris, but only sub po••estate viri, when a Baroness marri∣eth one under the degree of a Baron, by such mar∣riage her dignity is determined; for the rule* 1.12 is, quando mulier nobilis nupserit ign••bili desinit esse nobilis. But this rule is to be intended of a woman which attains Nobility by Marriage; as by marriage of a Duke, Earl, or Baron: For in such case, if after she marry under the degree of Nobility, by such marriage with one which is ignoble, she loseth her dignity, which she had attained by marriage with one of the Nobility. For Eodem modo quo quid constituitur, dissolvi∣tur.

But if a woman be Noble, as a Dutchess, Countess, Baroness, by descent, although she marry with one under the degree of the Nobility; yet her birth-right remains: for this is annexed to the blood, and is Character inde∣lebilis.

But if a Dutchess by marriage marry a Ba∣ron of the Realm, she remaineth a Dutchess, and loseth no her name, because her Husband is Noble.

Yet by the Courtesie of England, if women get to any degree of Estate, they never lose it, by marrying after more meanly; bu•• do still* 1.13 take place according to the estate of their first Hus∣band.

The Law tenders the speedy advancement of women, quia maturiora sunt vota mulierum quam ••i••orum.

MAXIM.

A Maxim, is a proposition to be of all men con∣fessed,* 1.14 and granted without a proof, argument or discourse, contra negantem principia, non est dis∣putandum, antient principles of the Law ought not to be disputed.

It is better (saith the Law) to suffer a mischief that is particular to one, then an inconvenience, that* 1.15 may prejudice many, Lex citius tolerare vult priva∣tum damnum quam publi cum malum. Summa ratio est, quae pro religione facit. A Statute directly against the* 1.16 Law of God is void.

The Rule of the Law is, Nemo debet bis puniri pro uno delicto, and the Divine saith, Nemo bis agit in id ipsum. Interest Reipublicae ne quis re sua malè utatur.

Beneficium transit cum onere, qui sentit commodum sentire debet & omis.

Benignior sententia in verbis generalibus seu dubiis est praeferenda.

Interest Reipublicae, ne malificia maneant im∣punita, & impunitas semper ad deteriora in∣vitat.

Nihil tam conveniens est naturali aequitati, u∣numquodque dissolvi eo ligamine quo ligatum est.

As no estate can be vested in the King without* 1.17 matter of Record, so none can be devested out of him without matter of Record. Things are dissol∣ved, as they are contracted.

An Obligation or other matter in writing, can∣not be discharged by an Agreement by word.

In praesentia majoris cessat potentia minoris.

The Book Cases are best proofs what the Law is.

Argumentum ab authoritate, fortissimum est in* 1.18 Lege.

Repellitur à Sacramento insamis.

Quod ab initio non valet, in ••ractu temporis non con∣valejcet,* 1.19 & quae mala sunt in••h••ata à principio, vix est ut bono per agantur exitu.

MISPRISION.

Misprision, is when one knoweth that another hath committed treason, or felony, and will not* 1.20 discover him to the King, or to any Magistrate, but doth conceal the same.

In all Cases of Misprision of Treason, the party offender shall forfeit his goods for ever, and the profits of his Land for term of his life, and his bo∣dy to prison at the Kings pleasure.

MONEY.

Money, the King by absolute prerogative may* 1.21 make any forreign coyn lawfull money of England at his pleasure by his proclamation.

If a man be bound to pay four hundred pounds* 1.22 at such a day, if he tender it in bags it is sufficient, for it cannot be counted in a day.

Lawfull Money of England, either gold or silver, is of two sorts.

Viz. 1. The English Money coyned by the Kings Authority.

2. And forreign Coyn by proclamation made cur∣rant within the Realm.* 1.23

Coyn, cuna dicitur à cudendo, of coyning, in French coin signifieth a corner, because in antient time Money was square with corners, as it is in some Countries at this day. Some say it is so called 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, quia communis, moneta à monendo, because* 1.24 it sheweth the authour and value. Every piece of Money ought to have a certain form of impression which shall be cognoscibilis, & discernibilis, for as Wax is not a Seal without print, so metall is not Money, without impression.

MONOPOLY.

Monopoly, It is an allowance by the King by his Grant, Commission or otherwise, to any person or persons, bodies politique or corporate, of or for the sole buying, selling, making, working, or using of any thing, whereby any person or per∣sons, bodies politique or corporate, are sought to be restrained of any Freedom or Liberty that they had before, or hindred in their lawfull Trade. Cook's 3 part of his Institutes c. 85.

All Grants of Monopolies are against the An∣tient and Fundamentall Laws of this King∣dom. Id ibid.

All Monopolies are against the great Charter, because they are against the Freedom of the Subiect, and against the Law of the Land. Cook's 2 part of Instit. c. 29.

MONSTER.

A Monster born within lawfull matrimony, that* 1.25 hath not humane shape, cannot purchase, much less retain any thing, yet if he have humane shape, he may be heir, though he have some desormity in any part of his body.

MORTGAGE.

Mortagage, is derived of two French words, viz. mort, id est, mortuum, and Gage, id est vadium, or pignus. And it is called in Latin mortuum vadium or Morgagium, to distinguish it from that which is called vivum vadium. As if a man borrow an hundred pounds of another, and maketh an estate of Lands unto him, untill he hath received the said summe of the issues and profits of the Lands, so* 1.26 as in this Case neither Money nor Land dieth or is lost, and therefore it is called vivum vadium.

MORTMAIN.

Mortmain, Some have said, that it is called manus mortua, quia possessio eorum est immorta∣li••, manus pro possessione, & mortua pro immorta∣li. Others say, it is called manus mo••tua per an∣tiphrasin, because bodies politick and co porate never die. Others say, that it is called Mortmain by resemblance to the holding of a mans hand that is ready to die, for that he then holdeth, he letteth not to go, till he be dead. These and such others are framed out of wit and invention, but the true cause of the name, and the meaning thereof was taken from the effects, as it is expressed in the S••atute it self, per quod quae servitia ex hujus∣modi* 1.27 foedis debentur, & quae ad defensionem reg∣••i ab initio provisa fuerunt indebitè subtrahun∣tur, & capitales domini eschaetas suas amittant, 〈…〉〈…〉 as the Lands were said to come to dead hands, as to the Lords, because by alienation in Mortmain, they lost wholly their Escheats, and in effect their Knights services for the desence of the Realm, Wards, Marriages, Reliefs, and the like, and there∣fore it was called a dead hand, for that dead hand 〈…〉〈…〉ieldeth no service.

Notwithstanding the Statute of Mortmain, a∣〈…〉〈…〉y one at this day may give Lands for finding a 〈…〉〈…〉reacher maintenance, or a School, for the Sta∣〈…〉〈…〉te was made to restrain men from giving to su∣••rstitious* 1.28 uses, and not to good and charitable 〈…〉〈…〉es.

MULIER.

Mulier, hath three significations.* 1.29

• 1. Sub nomine mulieris continetur quoelibet foe∣mina.
• 2. Propri•• subnomine mulieris continetur mulier, quae virgo non est.
• ...

• 3. Appellatione mulieris in legibus Angilae conti∣netur uxor, & sic filius natus, vel filia nata ex justa uxore appellatur in legibus Angliae filius mu∣lieratus, seu filia mulierata, a son mulier, or a daughter mulier.

If the Bastard dieth, seised without issue, and the Lord by escheat entreth, this dying seised shall not barre the mulier, because there is no de∣scent.

If the Bastard enter, and the mulier dieth, his Wife privement enseint with a Son, the Bastard hath issue and dieth seised, the Son is born, his right is bound for ever, but if the Bastard dieth seised, his Wife enseint with a Son, the mulier en∣ter, the Son is born, the issue of the Bastard is barred.

A young Son which is born during the espou∣sals* 1.30 of a lawfull Wife, is called mulier or filius mulieratus, for in our Laws mulier is taken for uxor.

It is taken in our Law for one that is lawfully be∣gotten and born, and is alway used in comparison with a Bastard, only to shew a difference between them and alwaies you shall find this addition to* 1.31 Bastard eldest, and mulier youngest, when they be compared together.

MURDER.

Murder, is a wilfull killing of a man upon malice prepensed or forethought, and seemeth to come of the Saxon word Mordren which so signifieth.

If upon an affray made, the Constable and others in his assistance come to suppress the fray, and to* 1.32 preserve the Peace, and in doing their office, the Constable or any of his assistants is slain, this is murder in the Law, although the murderer knew not the party which was killed, and although the

affray was suddain, because the Constable and his a••sistants came by authority of the Law to keep the peace, and to prevent the danger which may ensue by breaking of it, and for this the Law ad∣judgeth it murder, and that the murderer had ma∣lice prepensed, because he opposeth himself againt the Justice of the Realm, so if the Sheriff, or any* 1.33 of his Bailiffs or other Officers be slain in the exe∣cution of the process of the Law, or in doing their Office, or if a Watchman be killed in doing his Of∣fice, this is murder.

If a thief, which offers to rob a true man, kill* 1.34 him in resisting the thief, this is murder of malice prepensed; or if one kill another without any pro∣vocation, the Law implyeth malice.

The Statute 1 Iac. Reg. c. 8 hath well pro∣vided, that that party that stabbeth, or thrusteth any person (not having a weapon drawn, or that hath not first striken him) so as he die thereof within six moneths after, shall suffer death as a willfull murderer.

A. hath wounded B. in fight, and after they meet suddainly, and fight again, and B. killeth A. this seemeth murder, and malice shall be intended in B. upon the former hurt; but now if A. had kil∣led B. this seemeth but man-slaughter in A. for his former malice shall be thought to be appeased by the hurt he first did to B.

If two fall out upon a suddain occasion, and a∣gree to fight in such a field, and each of them go and fetch their weapon, and go into the field, and there in fight, the one killeth the other: here is no malice prepensed, for the fetching of the weapon and going into the field, is but a continuance of the

suddain falling out, and the blood was never cool∣ed: But it they appoint to fight the next day, that is malice prepensed. Sir Edward Cook's 3 part of Institutes c. 1.

If A. put poison in a pot of Wine, to the intent to poison B. and lay it in a place where he sup∣poseth B. will come and drink of it, and by acci∣dent one C. (to whom A. hath no ma••ice) come, and of his own head take the pot, and drink of this; of which poison he dies, this is murder in A. for* 1.35 he coupleth the event with the intention, and the end with the cause But if one prepare Bats-bane to kill Rats and Mice, or other Vermine, and leave this in some place to this purpose, and with no ill intent; and one finding this, eat of it, this is not f••lony, because he which prepared the poison, had no evil or felonious intent.

Iohn Sanders had a purpose to kill his Wife, to the intent he might marry another whom he bet∣ter affected, and opens his intent to Alexander Ar∣cher, and prayes his aid and counsell how he may effect it; he counsels him to poison her. And to this purpose the said Alexander buyes the poi∣son, viz. Arsenick and Rose-acre, and gives this* 1.36 to Sanders to minister to his Wife. Afterwards he gives his Wife this in a rosted Apple, and the Wi••e eats a little part of it, and gives the rem∣nant to her young child about three years old, and the said Iohn Sanders seeing this, reprehends his Wife, and saith that Apples were not good for such* 1.37 children, and she saith it was better for the child then for her; and the child eats the impoisoned

Apple, which the Father permits, to avoid suspicion; afterward the woman recovers, and the child dies of the said poison. This was murder in Sanders, though he bore no malice to his child, because he had an intent to kill a person: so if one lie in wait in a place to kill one, and another cometh to the place, and he which lies in wai•• mistakes him, and kills him; this is murder, being founded upon prepen••ed malice.

It was a Custom in old time, if one were found* 1.38 g••ilty in any appeal of murder, that his Wife, and all the nearest of his kin which was murdered, should draw the felon, who committed the mur∣der, by a long rope to the place of execu∣tion.

If a Peer of the Realm be arraigned at the suit of the King upon an Indictment of Murder he* 1.39 shall be tryed by his Peers, that is Nobles; but if he be appealed of murder by a Sub••ect, his tryal shall be an ordinary Jury of twelve Free∣holders, as appears 10 Edw. 4, 6. 33 Hen. 8.

The Town-ship shall be amerced for the escape of a murderer tempore diurno, although the mur∣der was committed in the town-field, or lane, L. Dyer p. 210. B.

If a man be attainted of murder, he shall suffer pain of death, and shall forfeit lands, goods and cha••tels.

MUTE.

A Prisoner may stand Mute two manner of waies;

• 1. When he stands mute without speaking of any thing; and then it shall be enquired, whether he stood mute of malice, or by the Act of God, and if it be found that it was by the Act of God, then the Judge of the Court ex officio, ought to

• inquire whether he be the same person, and of all other Pleas which he might have pleaded, if he had not stood mute.
• 2. When he pleads not guilty, or doth not di∣rectly answer, or will not put himself upon the enquest, to be tryed by God and the Countrey. Cook's 2 part of Instit. c. 12.

If a man stand mute in an Indictment he shall be put to his penance, if in an appeal he shall be hanged, if in a case of Treason, he shall be drawn and hang'd.

Notes

• * 1.1

  Cook 9 Rep. Mackallies c••se.
• * 1.2

  Cook on Lit.
• * 1.3

  Cook ubi supra.
• * 1.4

  Cook on Lit. l. 2. c. 11. sect. 194.
• * 1.5

  Lit. tit. Vil. lenage.
• * 1.6

  Minshew.
• * 1.7

  See Baile∣ment.
• * 1.8

  L. Dyer.
• * 1.9

  Cowels In∣terpret. & Innstitut.
• * 1.10

  Cook on Lit. l. 3. c. 13. sect. 701. Mainte∣nance is most usually done by the hand, either by delivery of Money, or other reward, or by ••riting on the behalf of one of the parties in a suit depend∣ing. Cook's 2 part of Instit. c. 28.
• * 1.11

  Cook's 2 part of In∣stit. c. 28.
• * 1.12

  Cook 4 Rep. Actons ••ase and on ••it. l. 1. p. 16. & 6 Rep. Coun∣tess of Rut∣lands case.
• * 1.13

  Dalton.
• * 1.14

  Cook on Lit. Principia probant, non pro∣bantur.
• * 1.15

  Cook on Lit. p. 7. 7.
• * 1.16

  Dr. and Student. Cook 5 Rep.
• * 1.17

  Cook 1 Rep. Cholmleys case.
• * 1.18

  Cook on Lit. p. 141.
• * 1.19

  Cook.
• * 1.20

  Est quae∣dam neg∣lectio supi∣na rei cu∣jusquam, à Gallico Mesp••iser Cowels Inst.
• * 1.21

  Cook 5 Rep. Wades case
• * 1.22

  Id. ib. The party that is to receive it, is to pull it out and tell it.
• * 1.23

  Cook on Lit.
• * 1.24

  Cook on Lit. p. 207. B.
• * 1.25

  Monstrum dicitnr à monstran∣do, Varr••. S••aliger. Cook on Lit. l. 3 b. & 7. b
• * 1.26

  Cook on Lit. l. 3. c. 5. sect. 332.
• * 1.27

  Cook on Lit. l. 1. c. 1. sect. 1.
• * 1.28

  Cook 1 Rep. Porters case
• * 1.29

  Cook on Lit. l. 3. c. 6. sect 299. and 8 Rep. Sir Rich. Lech∣fords case.
• * 1.30

  Cook 8 Rep. Lechfords case.
• * 1.31

  T. of Law.
• * 1.32

  Cook 4 Rep. cases of ap∣peals and indictinents fol. 10. ••.
• * 1.33

  The like is in 9 Rep. Mackallies case, and this reason given, for this is contra potestatem Regis, & Legis.
• * 1.34

  Cook 9 Rep. Mackallies case.
• * 1.35

  Cook 9 R. p. Agnes Gores case.
• * 1.36

  Plowdens Comment. Sanders case.
• * 1.37

  Here San∣ders was adjudged a principall, and hanged; but whether Archer was accessary here, was a great doubt; for his offence was in counselling, and pro∣curing him to kill his Wife, and no other, for no mention was made of the Daughter.
• * 1.38

  Pulton de place Re∣gis & Reg∣ni.
• * 1.39

  Cook 9 Rep Et probos & legales homines juratos.