Lavv, or, a discourse thereof in foure bookes. Written in French by Sir Henrie Finch Knight, his Maiesties Serieant at Law. And done into English by the same author.

CHAP. 1.

Of the Common Law of England, whereof the parts of the Realme, and of the persons in it. Of Cu∣stome, and Prerogatiue.

THE Common law of Eng∣land is a Law vsed time out of mind, or by prescripti∣on throughout the Realme. For to plead that there is a custome among merchants throughout the Realm, to assigne licences ouer, is not good, in asmuch as that which is currāt through∣out the Realme, is Common Law, not Cu∣stome. And vnder the name of the Realme of England, it is plaine that (a) Scotland

and Wales (b) much lesse (c) Ireland, are not included. Neither is the maine sea, that is to say, beneath the low water mark, par∣cell of the Realme: for there the Admiralls iurisdiction (which hath nothing to doe of things within the Realme) doth only med∣dle and not the Common Law. But be∣tweene the high water marke and the low water marke, where by ordinarie and natu∣rall course the sea ebbes & flowes: the com∣mon Law & the Admiraltie haue diuisum imperium, one vpon the water when it is ful Sea, the other vpon the land when it is an ebbe.

Statutes 27. H. 8. cap. 26. Incorpora∣teth Wales into England.

The whole Realme is diuided into se∣uerall Counties or shires, And those again into certaine villes or Townes: in many of which as also in diuers mannors wherof it commeth to speake afterwards.

There be speciall vsuages time out of mind, altering the common law which we call Customes.

As in Kent, the custom of Gauelkind for all the heires males to inherit alike, and the wife not to lose her dower, nor the heire his Land, though the husband or ancestor be hanged for felonie.

In London, if the debtor be fugitiue, that the creditor before the day of paiment may arrest him to find better suertie. In many Boroughes the youngest sonne to inherite

all. The wife to haue for her dower al her husbands lands: the lands there to be deui∣sible by will.

A Countie is a part of the Realme, en∣tirely gouerned by one Sheriffe vnder the King, but all subiect to the generall go∣uernment of the Realme. And therefore euery Countie is as it were, an entire body of it selfe, so that vpon a feoffement of lands in many townes in one Countie, li∣uerie of seisin made in one parcell, in any one of the Townes in the name of all, suf∣ficeth for all the lands in all the other Townes within the same Countie. But vpon a feoffement of lands in diuers Coun∣ties, there must be liuery of seisin in euery Countie.

Also an exchange of lands in one and the same Countie is good by parroll: but in diuers it must bee by deede indented.

A man is driuen to take notice of ma∣nie things done in the same County, where he is, but not in another. As if an action of debt be brought against an Executor, he may pay the assets which hee hath in his hands to anie other to whom the Testator stood indebted, till notice of the action brought against him, if the suit be in an o∣ther Countie, but not if it bee in the same Countie, for there hee must take notice of the action at his perill.

An Enquest also shall not take notice of things done in another Countie; but be∣cause all are vnder one generall gouern∣ment,

therefore things done in seuerall shires shall be tried by a ioynder of Coun∣ties, the Iury that tryeth the principall may take notice of a thing accessary, though it bee in another Shire. As in an action of trespasse, if the defendant plead an arbitrement in a forraine County, and issue bee taken vpon it, and found for the plantiffe: the Iury there must accesse da∣mages for the trespasse done in the other Countie.

Likewise in an action of debt against an Executor, who pleadeth, ne vnque admi∣nist. and giueth in euidence, a deed of gift made vnto him by the Testator in his life time in another Countie, the Iurie must finde it vpon paine of attaint. So of a re∣lease pleaded to be made in another Coun∣tie in a writ of right.

There be in all thirtie nine Shires, Kent, Sussex, Surrey, &c.

A Towne is a precinct, anciently con∣teining ten families, whereupon in some Countries they are called Tythings, with∣in one of which Tythings euery man must bee dwelling, and finde fuerties for his good behauiour, else he that taketh him in∣to his house is to bee amerced in the Leet.

Diuers of these Townes haue Ham∣lets in them, some speciall places there bee in euery County, out of any Towne or Hamlet.

The persons within the Realme are to be considered either as one entire body, or

as particular persons.

As one entier Bodie, it consisteth of the King, and common persons his subiects.

The King is the head of the Com∣mon-wealth, immediate vnder God.

And therefore carrying Gods stampe and marke among men, and being, as one may say, a God vpon earth, as God is a King in Heauen: hath a shadow of the excellencies that are in God, in a similitudinarie sort gi∣uen him: Gods excellencies and honor stan∣deth partly in things incommunicable vnto other, partly in such as after a sort hee ma∣keth his creatures partakers of both: which the King is said to haue some in truth, o∣ther by fiction, all by similitude from the diuine perfection.

The first thing in God, and most proper to his sacred Maiestie, is, the infinitenes of his nature; who, as the philosopher elegant∣ly saith, onely is that Circle, Cuius Centrum est vbique peripheria nusquam. So say our bookes, that the king in a manner is euerie where, and present in all his Courts.

In a writ of Error vpon a false Iudgment giuen for the King, no Scire facias shall go forth ad audiendum errores, for the King is alwa••es present in court, & that is the cause that the forme of entrie in all suites for the King is Henric{us} Hobart miles, At∣tornatus domini Regis generalis qui pro domino

Rege sequit' ven' hic in Cur. &c. and doth not say Dominus Rex per Henricum Hobart Attor∣natum suum, &c. And therefore it is also, that the King cannot bee non suite, that all acts of Parliament which concerne the king or generall, and the Court must take notice without pleading of them, for he is in all, and all haue their part in him.

A second thing proper vnto God, is the diuine perfection. In the King no imperfect thing can be thought, no (a) negligence, or laches, no follie, no infamie, no staine, or corruption of bloud. So as (b) nonage auoi∣deth not his grant, though it bee of Lands which he hath in his naturall capacitie.

By (c) his taking of the Imperiall crowne vpon him, all attainder of his person are purged ipso facto.

The excellencies which God bestoweth vpon his creatures (for I wil touch no more but those that the bookes of our Law doe speake of, and such as are leading rules to the cases that you shal find there argued & debated) are first, Maiestie, Soueraignitie, Power, Perpetuitie, & then that noble com∣plement of Iustice, and truth.

The law saith Bracton giues vnto the King Dominationem & potestatem.

He hath absolute power ouer all: for by a clause of non obstante he may dispēce with a Statute Law, and that (if he recite the sta∣tute) though the statute say, such dispensa∣tions shall be meerely void.

The King cannot take, hee cannot part

from any thing but by matter of Record. And that is for the Maiestie of his person. His supreame soueraignetie makes him im∣mediate vnder God. Omnis quidem sub eo & ipse sub nullo nisi tantum sub Deo, saith Bract. It makes all lands to be holden of him, eue∣rie surrender vnto him to be good; no acti∣on to lie against him; for who shall com∣mand the king.

Nay, acts of Parliament do not bind him, vnlesse they concern the Commonwealth, or he be specially named. Neither can the King be a Iointenant with any, though it be of land, or other things that he hath in his bodie naturall: for none can bee equall with him. And therefore if two purchase land to them and their heires, and one bee made King, they are now no more Iointe∣nants, but tenants in Common. Lastly for perpetuitie, the King neuer dieth, but in law it is saide the demise of the King, and a gist vnto the King, without saying more, trencheth to his successors.

To come to the other two, the power of God is alwais ioined with Iustice & truth: for to doe wrong, to deale vntruly, is not omnipotencie, but a thing of weaknesse & impotencie So it is with the King, he can∣not be a (a) disseisor, he can be no wrong∣doer: for he is all Iustice, he shall neuer be (b) estopped. Iudgement finall in a Writ of right, doth not conclude him, for hee is all truth, Ʋeritas & Iusticia saith Bracton, Circa solium eius. They are the two suppor∣ters

that doe vphold his Crowne.

Therefore also hee hath a prerogatiue in all things that are not iniurious to the subiect. As hee may create Corporations, Deane and Chapter, Maior and Cominal∣tie, &c. make Denisens: and it remaineth good, thogh he be declared an vsurper after (but no continuance in England can make a Denisen, though it bee from his child∣hood, and he sworne to the King in Leets) he may reserue rent vnto a stranger, grant a condition or thing in action, giue in fee simple, vpon condition not to alien, except out of his grant, things incident as Courts and perquisits of Courts vpon the grant of a mannor, sue in what court he will: as to haue a Quare impedit or Writ of Escheate, retornable in the Kings Bench, or a Quare incumbrauit there, though the record of the Recouerie be in the common place. He may alledge in his Court or plea, double matter, or as many matters as he will (and the par∣tie must answere to them all, and then the King shall take issue vpon any one at his pleasure. He may waiue his issue, and de∣murre in Law, and contrariwise, so it be the same terme, but not in another terme, for so he might do it infinitely. He may chal∣lenge a juror without shewing cause, or the array, because the Sherife that made it, was cosine to the partie. But no challenge shall be of a Iuror against him He is not bound to make a demand (or tender) where a lease

is made, reseruing a rent with a clause of re-entrie: hath the {pro}pertie of all goods that are in nullius bonis, shall haue the Tithes of Forrests and places out of any parish, take aduantage of other mens places, as to haue a Writ to the Bishop, if title appeare for him, though he be a stranger to the Action, all the daughters and heires (where the an∣cestor held in chiefe) must doe homage to him: where (if they hold of a common per∣son) the eldest onely must do it where he is to haue a benefit, a man may plead more pleas than once, pur darreine continuance, as outlawrie in an action of debt, &c. And many prerogatiues more he hath, which in their seueral places shal come more proper∣ly to be considered.

But in them all it must bee remembred, That the Kings prerogatiue stretcheth not to the doing of any wrong: for it groweth wholly from the reason of of the Common Law, & is as it were a finger of that hand, although so much differing in fashion (as the head and the bodie can neuer be of one proportion) that if you set them in paralels together, you shall find it to be law almost in euerie case of the King, that is law in no case of a subiect. And yet for all th••••, they are not two but one law. Onely the Com∣mon Law is as the primum mobile which drawes all the Plannets in their contrarie course.

In regard of the King, the Queene his wife is participant of diuers prerogatiues

aboue other women.

As in an Act of Parliament making all guifts and grants vnto her, or by her (whe∣ther betweene the king & her, or betweene her and any other person) to be of the same effect, as if it were between other subiects, without any benefit thereby to come vnto the king, need not be pleaded, but the court and all the Realme must take knowledge of it, because shee is a publique person, in whom all the subiects of the Realme haue interest, being the Kings wife, as they haue in the King himselfe. Likewise shee may haue in her selfe the possession of personall things during her life, so as shee may (a) haue an Action in her owne name alone, take lands and other possessions from the king by Charter: (b) make leases, feofments &c. which shall bee good during her life, but afterward the king shal haue them▪ And diuers other prerogatiues shee hath, which follow in their place.

His Subiects are the members of the Common-wealth, and are Barons and Commons.

Barons wee call the Péeres of the Realme. For euerie Duke and Earle is Peere of the Realme, because hee hath a Baronie belonging vnto him. Otherwise Duke and Earle are but names (a) of dignitie and of honour only, and (b) parcell of ones name.

So as in euerie Action which he bringeth, or is brought against him, he must bee named Earle or Duke, as he is, else the writ shall abate. But the name of Baron is the name of ones place and calling, which shal not be expressed in any writ. And where addition is necessarie, as by the Statute of 1. H. 5. yet he shall neuer be impleaded by the name of baron, for it is not any digni∣tie, but must be named knight if he be one, or Esquier if hee bee no Knight. And tou∣ching Bishops, who inioy the name of Lords of the Parliament, they haue the same in respect of antient baronies annexed to their dignitie.

All the rest are Commons.

The particular persons are natural per∣sons, or bodies politique.

The naturall person is euerie man.

A bodie politique is a bodie in fiction of Law, that indureth in perpetuall successi∣on And such is the King alone, and by himselfe considered: and a Parson. The law calleth him the Rector of a Church, for the King hath two capacities, a bodie naturall (wherein he may inherite from any of his ancestors, or purchase to him and his heirs, and retaine the same, notwithstanding hee be remooued from his estate Royall) and a bodie politique, wherein he may purchase to him and his heires Kings of England, or

to him and his successors. So a Parson is a Corporation by the Common Law, and hath two capacities, one to take to him and his heires, & the other to him and his suc∣cessors. And therin he is seised •••• iura Eccle∣siae.

And if I. S. be Parson of D. and land be giuen to I. S. Parson, and his successors, and to I. S. Clerke, and his heires; he is a tenant in Common with himselfe.

The parson in regard of his continuall attendance vpon that sacred function, is freed from all personall charges that may hinder him in his calling. For such a one shall not be chosen Bailife, Bedle, Reeue, or other such Officer; nor bee compelled to come to the (b) Sherifes turne, to the (c) Leets of the King or other Lords, for land annexed to their Churches. And all this by the course of the Common Law.

So is euerie other clark within orders.

To the Parson belongeth of Common right (as our bookes say) the tenth of all manner of yearely increase, which we call Dismes, or Tithes. And therfore by a lease of Rectoria, the Lessee shall haue the dismes and offerings of the same Church; for they are incident vnto it.

And if a Parson demise his glebe to a Lay man, he shall pay Tithes, because they are of common right.

Euerie Parson before he can be incum∣bent, must be presented to the Ordinarie, who is to admit him. And therefore is al∣lowed time to inquire of the clerks habili∣tie. As if he be presented to the bishop when he is readie to ride, who willeth him to come to him within three dayes to be exa∣mined: if he come not then, nor within six moneths after, the Bishop may collate by laps: for there be many things to dishable him frō hauing the benefice. As if he be cri∣minous, insufficient, a villeine, haue not his letters of Order, &c. And if a meere Lay∣man be presented, admitted, and instituted, and no sentence of depriuation or nullitie giuen, the Ordinary cannot collate by laps: for till that time, the church is full to all in∣tents, when the Ordinarie admitteth him to be able, that is called an admission, when he admitteth him to the charge, as to say to the Clerke Instituo te habere Curam animarū, that is, institution.

And then the Archdeacon is to put him in possession, by deliuering the ring of the church dore vnto him, and ringing of bells, which is called an induction, and that bee∣ing done, the partie becommeth an incum∣bent. Before which induction there is no possession or free-hold in him, of glebe, or house, or dismes. So as a rent granted by a Prebendarie, after admission and instituti∣on, and before induction, with confirmati∣on of the Ordinarie before induction, and

of Deane & Chapter, the day of induction is void.

The Incumbent hath not the meere right in him of Land in the right of his Church. But the fee simple is in abayance, that is to say, onely in the remembrance, in∣tendment, & consideration of law; There∣fore he cannot discontinue, and euerie Act which he doth with such land, may be auoi∣ded, when he ceaseth to be incumbent, ex∣cept such as are done by consent of patron and ordinarie, which bind for euer.

If the Church bee voide sixe moneths, without presenting, which is called a laps, the Ordinarie himself may collate, that is, a Clark appoint of his own: & if tt be voyd sixe moneths after his time, then the Me∣tropolitane, and sixe moneths after his time, the King may present. All this is to be vnderstood, If the Patron present not before them. But so long as the Church is void, though it be two yeares after, the pa∣tron may present, & the Ordinarie or Me∣tropolitane are bound to admit him. Quere whether it be so where the King is intitu∣led to present by laps.

When one Church is not able to finde the Cure, the ordinary by consent of the Patrons may vnite it, or make a consoli∣dation of it to some other. And it seemeth that in this case, the consent of the King

is not requisit, because here is no preiudice wrought to any, for if one man be patron of both Churches, hee shall haue the sole presentment: if there be seuerall Patrons, then they shall present by turne, and the King shall haue the laps, as before hee should. Otherwise it is vpon an appropri∣atian, for that is an amortisement, and ther∣fore all must ioyne in the making of it.

Statutes.

37. H. 8. Cap. 19. By assent of ordi∣nary, incumbent, and Patron, vnder their seales, an vnion may bee made of two Churches, being not aboue six pound year∣ly value in the Kings bookes, nor distant one from another aboue a mile; sauing to the King his tenths, and first fruits.

In corporate Townes it must bee by as∣sent of the Corporation.

If such a poore Parish shall within a yeare assure by writing to the incumbent and his successors, eight pound yearely, the vnion shall be void.

Ouer and besides those Corporations that were at the Common law, there bee diuers others which haue growne of later time, by a speciall foundation and election, whereof some are aggregate of many per∣sons, that is to say, of a head and body: o∣ther consist in one singular person.

These Corporations are all of them Temporall or Spirituall.

The Temporall, made by the King, as Maior and Comminaltie; and many moe which he maketh or may make euery day. Also (a) Colledges, as master & fellows, &c. diuers Townes are so incorporate before time of memory, with power to hold plea, by Writ of ex graui quaerela, or such like, and are called Boroughs, from whence (a) come the Burgesses to the Parliament: and this maketh the difference betweene the Borough and a Towne. So that (b) vp∣land Townes which are not ruled and go∣uerned as a Borough is, are but Townes, though they be inclosed in walls, as Lud∣low, & such like. And euery (c) Borough is a Towne, but not e conuerso. (d) The names of all the townes in England, and which are so incorporate, and which not, are of record in the Exchequer.

The spirituall ones were for the most part made by the Pope, but had their po∣wer to purchase from the King. And these likewise are of two sorts, for either they are Regular or Secular.

Regular, which haue entred into Reli∣gion, (and thereupon called religious) pro∣fessing to vow three things, Obedience, voluntary Pouerty, and perpetuall Cha∣stity. Wherefore these are dead persons in the accompt of Law. Onely their head hath power to purchase or doe such other

things to the vse of the house. And of this sort are Abbot and Couent, Prior and Co∣uent, &c.

Secular, are such as haue entred into Religion; as the Bishop and his Chap∣ter, Moster of an Hospitall, and his Bre∣thren, or confreres, gardian of a chappell, & the chapl••ns, &c. Also Archdeacons, & such like. Touching the Bishop & his chapter (which make but one bodie) their possessiōs are diuided: so as the Bishop hath part by himselfe, & the Chapter the residue. Which chapter consisteth of a Deane, as the chiefe, & prebendaries, or such like, who are most properly termed the chapter: & of these also, their possessions for the most part are diui∣ded: the Dean hauing some part sole in the right of his deanrie: & the particular Pre∣bendaries some other part in the right of their Prebends: the residue the Deane & Chapter haue together. And euerie of them is to such purpose incorporat by him∣selfe.

And these spirituall corporations are somtimes presentatiue, sometimes datiue, (perpetuall or remoueable) sometimes ele∣ctiue, & haue a common seale, according as their corporatiō is. To them also persona∣ges may be appropriate, by the patron, Or∣dinary, & king, & vicars, indowed to serue the cure. Wherupon a praecipe qd reddat li∣eth against the vicar only, without naming

of the person, for hee alone is Tenant of the freehold, and may haue a iuris vtrum, (or other action) against the person. All which is to be vnderstood of an ancient in∣dowment, but not for lands whereof hee is indowed by the Ordinarie.

Statutes.

Magna Charta cap. 36. A gift of lands to a Religious house, to take it backe to hold of them, is meerely voide, & the Land forfeit to the Lord.

Stat. de Religiosis, cap. 1. Land giuen in mortmaine, vnder colour of a terme, forfeit to the Lord, the immediate Lord hath one yeare to enter, the next Lord halfe a yeare, and so from Lord to Lord, till it come to the King.

Westm̄ 2. cap. 41. The King (founder of a Religious house) may seise lands which he gaue them, if they alien.

See all the statutes of the dissolution of Monasteries, Chaunteries, &c.

Notes

• Lit. 38. That pre∣scription is a vsage time out of mind.
• (a)

  8. R. 2. cont. claim. 13.
• (b)

  2. Mar. 29.
• (c)

  20. H 68. A fine with {pro}clama∣tions according to 4 H. 7. shall not barre one in Ire∣land.
• (d) 22. ass pl. 93. The statute 1. R. 2. cap. 5. prooueth the Common Law to be so.
• (e) Sir Henry Con∣stables Coo. 107.
• (a) 12 H. 7. 18. Fineux.
• (b) Litt. consuetu∣do ex rationabili causa vsitata pri∣uat Communem legem.
• (c) Lit. 46. & 58.
• (d) 8. H 3. prescip. 60.
• 5. E. 4. 30.
• Lit. 37.
• Lit. 13.
• 2. H. 4. 11.
• 21. H. 6 51.
• 9. E. 4. 40.
• 18. H. 6. 13.
• 1. H. 7. 10.
• F. N. B. 21. b.
• 25. H. 8. Br. non∣suite 68. 3. El. 231.
• (a)

  35. H. 6. 26.
• (b)

  3. Eliz. 213.
• (c)

  1. H. 7. 4.
• Bract. lib. 1. cap. 8.
• 2. H. 7. grants 33.
• Bract. ibid.
• (a) Stam▪ prae 73.
• (b) 7 E 4▪ 17.
• (c) 50 Ass. pl. 1. 18. Eliz 498.
• 4. E. 4. 21. 1 El. 223. & 240 3. Eliz. 239.
• 4. El. 234.
• 4. Mar. 177. Potentia iniuriae est impotencia naturae.
• (a)

  4. E. 4 25.
• (b)

  F. N. B. 143 b.
• (c) 20. E 3. Dr. 15 F. N. B. 31. D.
• 12. H. 7 19.
• 3. El. 231.
• (a)

  49. ass. pl. 8.
• (b)

  3. H. 7. 14.
• (a)

  14 H. 4. 7.
• (b)

  21. E. 4 84. 8. H. 6. 10.
• 32 H 6. 29.
• Stamp. prer. 154. 7. H. 8 Cr. 184. Hunnes case by all the Iustices of Eng∣land.
• 14. H. 8. 3. Fineux.
• 4. El. 234.
• 4 E 3 17. Br. Deane, &c. 2. 14. H. ••. 30.
• ibid.
• (a) F. N. B. 175.
• (b)

  Marl cap. 10.
• (c)

  F N. B. 160. c.
• (d) Marl cap 10. doth so recite it.
• F. N B. 175. Br. Dism ••6.
• 15. H. 7. 8.
• 32. H. 8. Br. ••••s. 17.
• 14 H. 7 21.
• 12. & 13. El. Dier 292.
• 20. El. 528.
• Lit. 143. 6. E. 6. Dy. 69.
• Lit. 143. 12. H. 8. 7.
• 3. E. 4. 3.
• Doct. & Stud. per Br plen. 15.
• Doct. & S•• ibid.
• 40. E. 3. 28. Fi••••. 50. E 3. 27. B••lnap.
• 14. H. 8. 3. Fineux
• 14 H. 8. ibid.
• (a)

  9. Eliz. Dy. 255. Littlet. 36. 40. Ass pl. 27. & 41.
• (a)

  Littlet. 36.
• (b)

  40. Ass pl. 41.
• (c)

  Littlet. 38
• (d)

  40. Ass pl. 27.
• 4 H. 4. Cap. 2. 4 H. 4. Cap. 12. Coo.
• Littlet. 66.
• 40. E. 3. 23. Coo. 75.
• 17. E. 3. 40. Par••.
• 21. E 4.
• 17. ass pl 29. 18. E 3. 36. F. N. B. 195.
• 26. Ass.