to I. S. this shall be intended the next to the next, which I may lawfully grant or dispose. Quære.

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 I. N. immediate fore contigerit; now this grant is merely void, because I had granted that before, and it cannot be taken against the words.

REGULA V.

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 4 Ed.6.cond. man's nature cannot overcome, such necessity carrieth a privilege in itself.

9.6.

Stamf.

Con. 13. per
Brooke.

15 H. 7. 2. per Keble.

14 H. 7. 29. per Read.

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 felony nor larceny.

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's 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 set on fire, whereby the prisoners get forth; this is no escape, 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 over4 Ed. 6. pl. board, whereby the merchant agrees with the customer by estimation, which falleth out short of the truth, yet the over quantity is not forfeited; where note, that necessity dispenseth with the direct letter of a statute law.

condition.

4 Ed. 6. 20. condition.

Lit. pl. 4. 19. 14 H. 4. 30.

12 H. 4. 20.

So if a man have right to land, and do not make his entry for terror of force, the law allows him a continual B. 38 H. 6. claim, which shall be as beneficial to him as an entry; so shall a man save his default of appearance by crestine de

11.

eau, and avoid his debt by duresse, whereof you shall find 28 H. 6. 8. proper cases elsewhere.

39 H. 6. 50.

Cor. Fitzh.

The second necessity is of obedience; and, therefore, where Stamf. 26. 2. baron and feme commit a felony, the feme can neither be Ed. 3. 160. principal nor accessory; because the law intends her to have no will, in regard of the subjection and obedience she owes to her husband.

So one reason amongst 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 B. 42 Ed. 3. wood upon the ground whereof I am tenant for life or for 6. years, I am excused in waste.

The third necessity is of the act of God, or of a stranger;

19. Ed. 3.

as if I be particular tenant for years of a house, and it be overthrown by grand tempest, or thunder and lightning, or B. Wast. 31. by sudden floods, or by invasion of enemies, or if I have 42 Ed. 3. 6. belonging unto it some cottage which hath been infected, per Fitzh. whereby I can procure none to inhabit them, no workmen to Wast. 30. repair them, and so they fall down; in all these cases I am 32 Ed. 3. excused in waste: but of this last learning, when and how Wast. 105. the act of God and strangers do excuse, there be other 44 Ed. 3. 21. 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 necessity 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 a ship throw over 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 of them overboard; for there it holdeth which was spoken by the Roman, when he alleged the same necessity of weather to hold him from embarking, necesse est ut eam, non ut vivam. So in the case put before of husband and wife, if they join in committing treason, the necessity of obedience doth not excuse

Fitzh.

13 H. 8. 16.

the offence as it doth in felony, because it is against the commonwealth.

my

So if a fire be taken in a street, I may justify the pulling per Shelly. 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 house, in a city or town, and distressed, and to save my life 12 H. 8. 10. I set fire on mine own house, which spreadeth and taketh per Brooke. hold upon other houses adjoining, this is not justifiable, 22 Ass. pl. but I am subject to their action upon the case, because I cannot rescue mine own life by doing any thing which is 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.

56.

6 E. 4. 7. per Sares.

4 H. 7. 2.

a

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 the chief reason why seipsum defendendo is not matter of justification, because the law intends it hath commencement upon an unlawful cause, because quarrels are not presumed to grow without some wrongs either in words or deeds on either part, and the law that thinketh it a thing hardly triable in whose default the quarrel began, Stamford, 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 cannot be any 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.

21.

qu. 15.

21 H. 7. 13.

So the common case proveth this exception, that is, if a Stamf. 16. 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 and loss of 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.

REGULA VI.

Corporalis injuria non recipit æstimationem de futuro. THE law, in many cases that concern lands or goods, doth deprive a man of his present remedy, and turneth him over to a 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 damage 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 drawing all things to incertainty and delay, if the 5 Ed. 4. 80. 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 sommoners; but if the sheriff 3 H. 6. 3. upon a capias return a cepi corpus et quod est languidus in prisona, there I may come in and falsify the return of the sheriff to save my imprisonment.

So if a man menace me in my goods, and that he will burn 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 a battery, or with the burning of my 7 Ed. 4. 21. house, which is a safety and protection to my person, or with burning an instrument of manumission, which is an evidence of my enfranchisement; if upon such menace or duresse I make a deed, I shall avoid it by plea.

So if a tresspasser drive away my beasts over another's 13 H. 8. 15. . ground, I pursue them to rescue them, yet am I a trespasser 21 H. 7. 28. to the stranger upon whose ground I came: 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 Christ's sacred mouth, Amen, 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 damage, 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.

Stamf. 16.

REGULA VII.

Excusat aut extenuat delictum in capitalibus, quod non operatur idem in civilibus.

IN capital causes in favorem vita, the law will not punish in so high a degree, except the malice of the will and intention 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: and therefore,

The law makes a difference between killing a man upon malice forethought, and upon present heat: but if I give a man slanderous words, whereby I damnify him in his name and credit, it is not material whether I use them upon sudden choler and provocation, or of set malice, but in an action upon the case I shall render damages alike.

So if a man be killed by misadventure, as by an arrow at butts, this hath a pardon of course; but if a man be hurt or maimed only, an action of trespass lieth, though it 6 E. 4. 7. be done against the party's mind and will, and he shall be punished in the law as deeply as if he had done it of malice.

Stamf. 16.
B.

B. 3. H.7.1.

Stamf. 16.

B.

35 H. 6. 11.

So if a surgeon authorised to practise, do, through negligence in his cure, cause the party to die, the surgeon shall not be brought in question of his life; and yet if he do only hurt the wound, whereby the cure is cast back, and death ensues not, he is subject to an action upon the case for his misfaisance.

So if baron and feme be, and they commit felony together, the feme is neither principal nor accessory, in regard of her obedience to the will of her husband: but if baron and feme join in committing a trespass upon land or otherwise, the action may be brought against them both.

So if an infant within years of discretion, or a madman, kill another, he shall not be impeached thereof: but if they put out a man's eye, or do him like corporal hurt, he shall be punished in trespass.

So in felonies the law admitteth the difference of principal and accessary, and if the principal die, or be pardoned, the proceeding against the accessory faileth; but in a 17 H. 4. 19. trespass, if one command his man to beat you, and the servant after the battery die, yet your action of trespass stands good against the master.

Com. 98.