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in such grounds my beasts have gone and fed; and if I never put in any, but occupy my grounds otherwise, he is without remedy: but if I once put in, and after by poverty or otherwise desist, yet the commoner may continue: contrariwise, if the words of the grant had been quandocunque averia mea ierint, for there it depends continually upon the putting in of my beasts, or at least the general seasons when I put them in; not upon every hour or moment.
So if I grant tertiam advocationem to I. S. if he neglect to take his turn ea vice, he is without remedy: but if my wife be before entitled to dower, and I die, then my heir shall have two presentments, and my wife the third, and my grantee shall have the fourth; and it doth not impugn this rule at all, because the grant shall receive that construction at the first, that it was intended such an avoidance as may be taken and enjoyed: as if I grant proximam advocationem to I. D. and then grant proximam Dy. f. 35. advocationem to I. S. this shall be intended the next to the next, that is the next which I may lawfully grant or dispose.
But if I grant proximam advocationem to I. S. and I. N. is incumbent, and I grant by precise words, illam advocationem, quam post mortem, resignationem, translationem, vel deprivationem 1. N. immediate fore contigerit; now this grant is merely void; because I had granted that before, and it cannot be taken against the words.
Necessitas inducit privilegium quoad jura privata.
THE law chargeth no man with default where the act is compulsory and not voluntary, and where there is not a consent and election: and therefore, if either there be an impossibility for a man to do otherwise, or so great a perturbation of the judgment and reason as in presumption of law man's nature cannot over- Plow. f. 9. come, such necessity carrieth a privilege in itself.
Necessity is of three sorts: necessity of conservation of life; necessity of obedience; and necessity of the act of God, or a stranger.
First, for conservation of life:
If a man steal viands to satisfy his present hunger, this is no Stamf. felony nor larceny.
Plow. f. 13. b. per Brooke.
So if divers be in danger of drowning by the casting away of some boat or bark, and one of them get to some plank, or on the boat side to keep himself above water, and another to save his life thrust him from it, whereby he is drowned; this is neither se defendendo nor by misadventure, but justifiable.
So if divers felons be in a gaol, and the gaol by casualty is 15 H. 7. f. 2. set on fire, whereby the prisoners get forth; this is no escape,
pl. 2. per Keble.
14 H. 7. f. 29,
30. per Read.
Plow. f. 1.
Lit. sec. 419. 12 H. 4. f. 20. pl. 5.
38 H. 6. f. 11. pl. 22.
28 H. 6. f. 8. pl. 8.
nor breaking of prison.
So upon the statute, that every merchant that setteth his merchandise on land without satisfying the customer or agreeing for it, (which agreement is construed to be in certainty,) shall forfeit his merchandise; and it is so that by tempest a great quantity of the merchandise is cast overboard, whereby the merchant agrees with the customer by estimation, which falleth out short of the truth; yet the over quantity is not forfeited, by reason of the necessity: where note, that necessity dispenseth with the direct letter of a statute law.
So if a man have right to land, and do not make his entry for 4.4. f. 13. terror of force, the law allows him a continual claim, which shall be as beneficial to him as an entry. So shall a man save his default of appearance by cretine1 d'eau, and avoid his debt by duresse, whereof shall find you proper cases elsewhere. The second necessity is of obedience: and therefore, where baron and feme commit a felony, the feme can neither be prinCoron. pl.160. cipal nor accessory; because the law intends her to have no will, in regard of the subjection and obedience she owes to her husband.
39 H. 6. f. 50. pl. 16.
Stamf. 26. 2 Ed. 3. Fitz. Tit.
43 Ed. 3. f. 6.
19 Ed. 3.
32 Ed. 3.
Waste pl. 74.
So one reason among others why ambassadors are used to be excused of practices against the state where they reside, except it be in point of conspiracy, (which is against the law of nations and society,) is, because non constat whether they have it in mandatis, and then they are excused by necessity of obedience. So if a warrant or precept come from the king to fell wood the ground whereof I am tenant for life or for years, I am excused in waste.
The third necessity is of the act of God, or of a stranger: as if I be particular tenant for years of a house, and it be overthrown by grand tempest, or thunder and lightning, or by. sudden floods, or by invasion of enemies, or if I have belonging unto it some cottages which have been infected, whereby I can
1 This word, like most in law French, seems spelt anyhow. It means floods, and I suppose comes from cresco.
procure none to inhabit them, nor any workmen to repair them, and so they fall down: in all these cases I am excused in waste. But of this last learning, when and how the act of God and strangers do excuse, there be other particular rules.
But then it is to be noted, that necessity privilegeth only quoad jura privata; for in all cases, if the act that should deliver a man out of the necessity1 be against the commonwealth, necessity excuseth not: for privilegium non valet contra rempublicam ; and, as another saith, necessitas publica major est quam privata: for death is the last and farthest point of particular necessity, and the law imposeth it upon every subject that he prefer the urgent service of his prince and country before the safety of his life. As if in danger of tempest those that are in the ship throw overboard other men's goods, they are not answerable; but if a man be commanded to bring ordnance or munition to relieve any of the king's towns that are distressed, then he cannot for any danger of tempest justify the throwing them overboard: for there it holdeth which was spoken by the Roman, when they alleged the same necessity of weather to hold him from embarking, necesse est ut eam, non ut vivum. So in the case put before of husband and wife; if they join in committing treason, the necessity of obedience doth not excuse the offence as it doth in felony, because it is against the commonwealth.
So if a fire be taken in a street, I may justify the pulling 13 H 8. f. 16. down of the wall or house of another man to save the row from the spreading of the fire; but if I be assailed in my house, in a city or town, and be distressed, and to save my life I set fire on mine own house, which spreadeth and taketh hold on the other houses adjoining; this is not justifiable, but I am subject to their action upon the case, because I cannot rescue mine own life by doing anything against the commonwealth. But if it had been but a private trespass, as the going over another's ground, or the breaking of his inclosure when I am pursued, for the safeguard of my life, it is justifiable.
This rule admitteth an exception, when the law intendeth some fault or wrong in the party that hath brought himself into the necessity, so that it is necessitas culpabilis. This I take to be chief reason why seipsum defendendo is not matter of justification: because the law intends it hath a commencement upon an unlawful cause, because quarrels are not presumed to grow
i. e. I suppose, ex necessitate.
without some wrongs either in words or deeds on either part; and the law, thinking it a thing hardly triable in whose default the affray or quarrel began, supposeth the party that kills another in his own defence not to be without malice; and therefore, as it doth not touch him in the highest degree, so it putteth him to sue out his pardon of course, and punisheth him by forfeiture of goods: for where there can be no malice nor wrong presumed, as where a man assails me to rob me, and I kill him that assaileth me, or if a woman kill him that assaileth her to ravish her, it is justifiable without any pardon.
So the common case proveth this exception; that is, if a madman commit a felony, he shall not lose his life for it, because his infirmity came by the act of God; but if a drunken man commit a felony, he shall not be excused, because his imperfection came by his own default. For the reason of loss and deprivation of will and election by necessity and by infirmity is all one; for the lack of arbitrium solutum is the matter: and therefore as infirmitas culpabilis excuseth not, no more doth necessitas culpabilis.
4. f. 93, 94, &c.
Corporalis injuria non recipit æstimationem de futuro.2
THE law, in many cases that concern lands or goods, doth deprive a man of his present remedy and turneth him over to some further circuit of remedy, rather than to suffer an inconvenience: but if it be question of personal pain, the law will not compel him to sustain it and expect remedy; because it holdeth no damages a sufficient recompense for a wrong which is corporal.
As if the sheriff make a false return that I am summoned, whereby I lose my land; yet, because of the inconvenience of drawLong 50 Ed. ing all things to incertainty and delay if the sheriff's return should not be credited, I am excluded of my averment against it, and am put to mine action of deceit against the sheriff and summoners: but if the sheriff upon a capias return cepi corpus, et quod est languidus in prisona, there I may come in and falsify the return of the sheriff to save my imprisonment.
3 H. 6. f. 3.
So if a man menace me in my goods, as that he will burn
1 Omitted in Camb, MS.
2 The words de futuro are omitted in the Camb. MS. as is the contrast with the lex talionis applied de præterito, in the last paragraph of the rule.
certain evidences of my land which he hath in his hand, if I will not make unto him a bond; yet if I enter into bond by this terror, I cannot avoid it by plea, because the law holdeth it an inconvenience to avoid a specialty by such matter of averment; and therefore I am put to mine action against such a menacer: but if he restrain my person, or threaten me with battery, or 7 Ed. 4. f. 21. with burning my house which is a safety and protection to my person, or with burning an instrument of manumission which is evidence of my enfranchisement; if upon such menace or duresse I make a deed, I shall avoid it by plea.
So if a trespasser drive away my beasts over another's ground and I pursue them to rescue them, yet am I trespasser to the stranger upon whose ground I come: but if a man assail my person, and I fly over another's ground, now am I no trespasser.
This ground some of the canonists do aptly infer out of the saying of Christ: Annon est corpus supra vestimentum ? where they say vestimentum comprehendeth all outward things appertaining to a man's condition, as lands and goods, which, they say, are not in the same degree with that which is corporal; and' this was the reason of the ancient lex talionis; oculus pro oculo, dens pro dente: so that by that law corporalis injuria de præterito non recipit æstimationem: but our law, when the injury is already executed and inflicted, thinketh it best satisfaction to the party grieved to relieve him in damages, and to give him rather profit than revenge; but it will never force a man to tolerate a corporal hurt, and to depend upon that inferior kind of satisfaction, ut in damagiis.
Excusat aut extenuat delictum in capitalibus, quod non operatur idem in civilibus.
In capital causes, in favorem vitæ, the law will not punish in so high a degree, except the malice of the will and intention do appear; but in civil trespasses and injuries that are of an inferior nature, the law doth rather consider the damage of the party wronged, than the malice of him that was the wrong-doer.
The Camb. MS. has only :
"But when the injury is already executed and inflicted, the law can do no more but relieve a man in damages; but it will never force him to tolerate a corporal hurt, and to depend upon that inferior kind of satisfaction."