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 ...

F

FARM

FArm, (in Latin firma) cometh from the Sa〈…〉〈…〉 word Feormian to feed or relieve, for in a〈…〉〈…〉 time, upon Leases were reserved Corn, Cattel•• Victuals, &c. which was called Feorme: so that al∣though* 1.1 now by agreement such Rent is turned in∣to Money, yet it retains the name still, and as well the Land so leased as the Rent is called Farm, and the occupyers of such Land Farmers. A Farm in Lancashire is called a Fermeholt, in the North parts a Tacke, and in Essex a Wike, and was an∣tiently* 1.2 called sundus. By the grant of Farmes will pass Leases for years, as also Houses▪ Lands, &c.

FEALTY.

Fealty, it is the most generall service in the Com∣mon* 1.3 Law, for it is incident to every Tenure, un∣less it be a Tenure in Frankalmoigne, it is also the most sacred, because it is done upon oath, and the reason wherefore the Tenant is not sworn, in do∣ing his homage to his Lord, is because no subject is sworn-to another subject, to become his man of life and member, but to the King only, and that is called the oath of allegiance, homagium ligeum, and those words for that purpose are omitted out of fealty, which is to be done upon oath.

FEE-SIMPLE.

Fee-simple, Fee cometh of the French Fief, that* 1.4 is praedium beneficiarum, and legally signifieth In∣heritance.

FEUDUM.

Feudum, is a barbarous word, but had his ori∣ginal (a•• I••idore saith) from foeaus, and is to be* 1.5 interpreted tanquam foeaum, that is, a thing co∣venanted between two, others deduce it from the word ••ides as it were in Latin Fideum and by a* 1.6 more pleasant pronuntiation Feudum, whereupon such as u••e Feudataries to others, are called in La∣tin Fideles, because they owe saith an allegiance to such whose Feudataries they are.

It is called Fee-simple, because it is descendible to his heirs generally that is simply without re∣straint* 1.7 to the heirs of his body.

A man may have a Fee-simple in 3 kinds of he∣reditaments, viz. Reall, personal and mixt, reall as Lands and Tenements.

2. Personall, as if an annuity be granted to a man and his heirs.

3. Mixt hereditaments, as when the King creat∣eth an Earl of such a County, to have the dig∣nity to him and his heirs, this dignity is per∣sonall, and also concerneth Lands and Tene∣ments.

Every man that hath a Fee-simple, hath it either by right or by wrong, if by right, then he hath it either by purchase or descent. If by wrong,* 1.8 then either by disseisin, intrusion, abatement, or u∣surpation.

FEE.

Fee or Inheritance is either,

• 1. Corporeall, as Lands and Tenements which lie in livery, these may pass by livery by Deed or* 1.9 without Deed.
• 2. Incorporeall, which lyeth in grant, and cannot pass by livery, but by Deed, as advowsons,* 1.10 Commons.

FEES.

Fees, there are divers Opinions about Knights* 1.11 sees. Some say that a hide or a plow of Land con∣tains 10 Acres, and that 80 hides or 800 Acres of Land, make a Knights Fee, and others hold that 680 Acres of Land make this, but a Knights Fee is properly to be esteemed according to the quality and not the quantity. In antient time men thought 20 l. of Lands was sufficient to maintain the degree of a Knight, also every Plow of Land was antiently worth four Nobles per an∣num, and this the life of a yeoman, & ex duode••in* 1.12 carucatis constabat unum foedum imlitare, which a∣mounts to 20 l. per annum.

FEOFFEMENT.

Feoffement, is the antient and most necessary* 1.13 conveyance, because it is solemn and publick, and also because it cleareth all disseisms, abatements, intrusions, and other deseasible estates, where the entry of the Feoffer is lawfull, which neither fi••e recovery, nor bargain and sale by Deed indented and inrolled doth, Ephron infeoffed Abraham Gen. 23.

If a contract of Matrimony be between a man and a woman, yet one of them may infeoff the o∣ther, for yet they are not one person in the Law, insomuch as if the woman die before the espousal* 1.14 celebrated between them, the man to whom sh••

was contracted shall not have her goods as her Husband, but the woman may well make her Te∣stament without his consent. It hath been held if a man be contracted to a woman, & postea cogno∣tit* 1.15 eam carnaliter, and after he infeof her of a plow of Land, and put her in seism, and af∣ter marry her in facie Ecclesie, that this feoffment was void, because it was done post fidem datam, & carnalem copulam, & sic tan••uam inter virum & u••••rem, insomuch as marriage followed, but at this day it such a feoffment be made, it is good enough.

FELONY.

Felony, is so called either of the Latin word* 1.16 f••••, which is in English gall, or of the antient English word fell or fierce, because it is intended to be done with a cruell, bitter, fell, fierce or mischievous mind. Significat quod libet capitale cri∣men felleo animo perpetratum, in which sense mur∣der is said to be done prr fel••niam, and in antient times this word (felonice) was of so large an ex∣tent, as it included high treason, and by pardon of all felonies, high treason was pardoned.

A man may have property of some things which are of so base nature, that no felony can be commited of them, and no man shall lose for them life or member, as a Blood-hound and a Mastiff.

To steal fruit that hangeth on a Tree, to cut down and carry away the Tree it self, is not fe∣lony,* 1.17 but these things be part of the Free-hold till they be sever'd, and cannot be reputed for any chat∣••els. But if I gather mine Apples or cut down a Tree of mine own, then may another become a felon by taking away either of them.

Felony cannot be comitted by the taking of beasts that be savage, if they be savage and un∣tamed

at the time of taking, nor for taking of Doves* 1.18 being out of a Dove-coat, not for taking of fishes being at large in a River, for such taking is not con∣trectatio rei alienae, sed quae est nullius in bonis, but the stealing of a Doe which is tame and domesticall is felony, but as M^r Stamford well noteth, it seemeth that he that stealeth it should have certain know∣ledg that it is tame; but if the Doe be killed, and then stolen, this is certainly felony, saith he. So if one break a Dove-coat, and take out the young Pigeons* 1.19 which cannot go nor ily, this is felony, or steal Fish out of a pond or trunk, or young goshawks ingen∣dered in my Park, which cannot go nor ily.

The punishment of a felon is grievous.

• 1. He loseth his life, his judgment is to hung by the neck untill he be dead.* 1.20
• 2. He loseth it in an odious manner, by hanging between Heaven and earth, as unworthy o•• both.
• 3. His blood is corrupted and stained that his Children cannot inherit to him nor any other Ancestors.* 1.21
• 4. He shall forfeit all his Lands and Tenements which he hath in Fee, and in tail, and for Te∣nour of his life.
• 5. All his goods and chattels.
• 6. His Wife shall lose her dower, thus severe it wa•• at the Common Law, that men should fear to commit felony, ut poena ad paucos, metus ad om∣nes perveniat.

An act Anno 21 Iacobi Regis, concerning wo∣men convicted of small felonies, continued tertio Caroli cap. 4. to the end of the first Sessions of the next Parliament.

Whereas women having not the benefit of Cler∣gy, do suffer death for small causes, be it enacted that a woman lawfully convict of felonious taking of any goods above twelve pence, and under ten Shillings value, or as accessary to such offence, the same being not burglary, nor robbery, nor pri∣vy stealing from the person (but only such an of∣fence for which a man shall have Clergy) she shall for the first time be branded upon the brawn of the left thumb with a hot iron having a Roman T by the Ga••ler in open Court, and further pu∣nished* 1.22 by imprisonment, whipping, stocking, house of correction, and for so long time not exceeding a year, as the ludge shall think meet

The Civil Laws do judg open theft to be satis∣fied by the recompence of four-fold, and private theft, by the recompence of double. But the Laws of England suffer neither of these offences to be more favourably punished then with the offendors death, if the value of the thing stollen be above twelve pence.

If a man be adjudged to be hanged, and the She∣riff* 1.23 be commanded that it be executed, and he be head him, this is felony in the Sheriff, because the order of Law is not observed.

FELO DE SE.

If a man of non sanae memoriae give to himself a mortall wound, and before he dieth he become of sound memory, and after dieth of the same wound, in this Case, although he die of sound memory, by* 1.24 reason of his proper stroke, yet because the ori∣ginal cause was committed, being not of sound

memory, he shall not be felo de se, because the death hath relation to the original act.

By the common Law if a man kill himself he is called felo de se, and he doth only forfeit hi•• goods and chattels, but not his Lands, neither dot•• this work corruption of Blood, no•• the Wife lose her Dower, because it is no attainder in deed.

He that is felo de se shall not have Christian buriall, and all his goods and chattels are for∣feited to the King, and by his Almner are to be distributed to pious uses (heretofore) in salutem animoe.

FINE.

Fine, This word (Finis) hath divers signifi∣cations* 1.25 in the Law, quia aliquando significat pretium aliquando poenam, aliquando pacem.

For 1. The price or summe which is the cause of obtaining a benefit, is called a fine: as a fine for alienation for admission to a Copy-hold for ob∣taining of Leases.

2. What the offender gives in satisfaction of his of∣fences, is called a fine also, and in this sense di∣citur poena.

3. The assurance which makes men to enjoy their Lands and Inheritance, is called finis quia ••i∣nem litibus imponit.

They are all so called, because they are the ends or causes of the ends of all such business.

Of fines taken of Copyholders,

Some be certain by custom,

And some be uncertain.

But that fine though it be incertus, yet it must be rationabilis, and that reasonableness shall be discussed by the Justices upon the true circumstan∣ces* 1.26 of the Case appearing unto them, and if the Court where the cause dependeth, adjudgeth the

fine exacted unreasonable, then is not the Copy∣holder compellable to pay it.

FLIGHT.

Flight, one shall forfeit his chattels upon a su∣gam fecit, notwithstanding that he be acquitted of the same felony, and he shall forfeit them,* 1.27 although he have his Charter of pardon for the same felony. One may fly for felony, and yet he shall forfeit nothing, as where one is arrested for suspi∣cion of Felony and escapes, yet for this he shall not forfeit his goods, if he were not taken with the manner, or at the suit of the party, or endicted of the same.

When a true man is pursued as a felon, and he ••lieth and waveth his own goods, these are forfei∣ted,* 1.28 as if they had been goods st••llen. Fatetur facinus, qui judicium fugit. Those that ••ly for fear of the offence (we call it a sugam fecit) forfeit their chattels.

FLOATSOM.

Floatsom, is when a Ship is drowned, or other∣wise perished, and the goods ••loat upon the Sea,* 1.29 and they are given to the Lord Admiral by his Let∣ters Pattents.

FORCE.

Force, prohibited by the Statutes, must be either manu f••rti, with sorce or strong hand, or multitudi∣ne,* 1.30 with multitude of people.

The Counsellours and Committers of ••orce are alike punished.

FORGING.

Forging of Deeds, To forge is metaphorically taken from the Smith, who beareth upon his An∣vill, and forgeth what fashion or▪ shape he will.

FORMEDON.

Formedon, is so called, because the W••it doth comprehend the form of the gift. There be three kinds of Writs Formed••n, ••i••.

The first in the descender, to be brought by issue in tail, which claim by descent per formam* 1.31 doni.

The second is in the Reverter, which lieth for him in the reversion, or his Hel•••• or Assignes, after the State tail is spent.

The third is, the remainder which the Law gi∣veth to him in the remainder, his Heirs or As∣signs after the determination of the estate tail.

FOUNDATION.

Foundation, the foundation of a Colledge or Hospitall is called, fundati••, ••uasi fundi datio, vel* 1.32 fundamenti locatio.

FRANCHISE.

Franchise, is a priviledge from ordinary jurisdi∣ction, and it is called a Franchise Royall in some* 1.33 Statutes, where the Kings Writ runneth not, as when the King granteth to one and his Heirs, that they shall be quit of toll.

FRANKALMOIGNE.

Frankalmoigne, in Latin, libera eleemosyna, in English free Alms, is when a man in antient time before the Statute of quia emptores terrarum, had infeoffed an Ecclesiasticall person whether regular, as Abbo••s, Priors, &c. or secular, as Bishops, Deans, and Chapters, Arch-Deacons, Prebends, Parsons,

Vicars, &c. to have and hold to them and their suc∣ces••ors, to hold of the feoffe••, and his Heirs in frankalmoigne.

There is an Officer in the Kings house called Eleemosynarius, the Kings Almn••r▪

FRANK-TENEMENT.

Frank-Tenement, Free-h••ld, is an estate that a man hath in Lands or Tenements, for term of his own life, or of anothers li••e, in dower or by the co••••tesie of England, and under that there is no free-hold, for he that hath estate for years, or holdeth at will, hath no freehold, but they are called cha••tels.

A Tenement cannot be said to be free-hold, ex∣cept it touch the earth, and therefore a Chamber built upon a Hall or Parlor, cannot be said to be free-hold, because it cannot be perpetuall, for the foundation may perish, and therefore it cannot be demanded by plain•• or Writ.

Tenant in ••ee, tenant in tail and for life, are said to have a frank-tenement, a free-hold so called, because* 1.34 it doth distinguish it from termes of years, chattels upon uncertain interests, Lands in villenage, cus••o∣mary or copy-hold Lands.* 1.35

Free-man. A man may be liber homo a free-man in London three waies.

• 1. By service, as he who hath served his Ap∣prentiship.
• 2 By Birth-right, as he which is the Son of a Free-man of London.
• 3. By Redemption, that is, allowance of the Court of the Major and Alder∣men.

FRESH-SUIT.

Fresh▪Suit, 〈…〉〈…〉ner which esca∣peth be out of vi••w, 〈…〉〈…〉 be made, and he be 〈…〉〈…〉 〈…〉〈…〉 ins••cuti••e, he shall be in* 1.36 execution, 〈…〉〈…〉her wife at the turning of a corner or by 〈…〉〈…〉 a house, or by other means, the the prisone•• may be out of view.

Notes

• * 1.1

  Pl. Com. 169.
• * 1.2

  Br. Grant. 155.
• * 1.3

  In the civil Law is cal∣led fideli∣tas. Cook l▪ 4. Berits case, and on Lit. l. 2. c. 2. sect. 91.
• * 1.4

  Littleton and Cook n Lit.
• * 1.5

  Ridleys view of the Civil Law.
• * 1.6

  Nec Gothi∣cam Feudi vocem ab∣horream; Ed signifi∣catur genus clientelae, quo vel praedium, cui quam datur, ut & auctorem agnoscant caput, honorem, at vel dignitas, vel vecti∣gal ipsi, & posteri, beneficii pro patrono, ejusque fortunas defen∣dant, Vossius De vitiu Sermo••nis l. 1. c. 7.
• * 1.7

  Cook on Lit. l. 1. c. 1.
• * 1.8

  Id. ubi su∣pr••.
• * 1.9

  Haereditas corporata.
• * 1.10

  Haereditas incorporata.
• * 1.11

  A plow or hide of land which is all one, is as much as one may plow in one year.
• * 1.12

  Cook 9 Rep. Lowes case.
• * 1.13

  It is deri∣ved of foe∣dum quia est donatio foedi. Cook on Lit. l. 1. c. 1. sect. 1.
• * 1.14

  Perkins tit. Fe••ffments.
• * 1.15

  Id. Ib.
• * 1.16

  Termes of Law. Ideo dicta est felonia, quia fieri debet fel∣leo animo. Cooks 4 R. Bedlies Case. Cook on Lit. 3. p. 392. Cooks 7 R. Cases of Swans.
• * 1.17

  But a tres∣pass.
• * 1.18

  Stamford pl. of Cr. p. 1. c. 1.
• * 1.19

  Id. Ib. Quam va∣ria sunt feloniarum genera, Henricus Spelmannus, eques Auratus in eruditissimo suo Glossari•• ostendit. Vossius De vitiis Sermonis. l. 2. c. 6.
• * 1.20

  Quod sus∣pendatur per col∣lum.
• * 1.21

  Cook 4 Rep. Beverlies case, and on Lit. By the Sta∣tute, de do∣nis condi∣tionalibus, lands in∣t••••iled are not forfeited for felony, but for the life of Tenant in Ta•• the Inheritance is preserved to the issues.
• * 1.22

  This Sta∣tute to con∣tinue untill the first Session of the next Farliament Portescue. de laud. leg Ang.
• * 1.23

  Stamf. l. 1. pl. of Cr. c. 4.
• * 1.24

  Cook 1 Rep. Shellies case.
• * 1.25

  Cook 8 Rep. Keechers Case.
• * 1.26

  Cook on Lit. lib. 1. cap. 9. sect. 74.
• * 1.27

  Stamsord pl. o•• Cr. l. 3. cap. 2. Stam••. of prero. c. 16.
• * 1.28

  29 E. 3. 29. 37 H. 8. Stam••. fol. 186. 4.
• * 1.29

  Cook l. 5. Sir Henry Constables Case.
• * 1.30

  Ubi sactum nullum ibi ••ortia nulla There is a difference in the Common Law betwixt publick and open force.
• * 1.31

  Cook onl it. l. 3. c. 11. sect. 595.
• * 1.32

  Cook l. 10. Rep.
• * 1.33

  An. 15. Rich. 2. c. 4. An. 8. Hen. 5.
• * 1.34

  Cook on ••••••.
• * 1.35

  Cook 8 Rep. Case of the City of London.
• * 1.36

  Cook 3 Rep. Rigewayes Case.