true that Rolfe saith, 8. H. 5. that a church parochial cannot otherwise be intended, but a house made of stones, and walls, and roof, and such material things which cannot take by gift or feoffment no more than a church conventual which lacketh a sovereign: *yet it cannot be denyed that the parishioners are incorporate for the purchasing of personal things, and that in regard of such capacity, they may be said to be the church itself, as well as the parson and his successors, in ancient time, were said to be the church in the purchase of land and realties, which may appear by this case: Land was devised to one for life, the remainder to another for term of life, the remainder to the church of St. Andrew, in Holborn, this adjudged to be a good devise, tand this must needs go to the parson and his successors, because the church-warders and parishioners were never admitted by law to purchase land to the use of the church. And Belknappe said, that the cloaths of a dead man being found dead in the field, did be * 8. H. 5. 4. + 21 R. 2. Devis. 27. long to his executors, if he had made a will, otherwise that they should be delivered to the church for celebration of divine service for the soul of the dead: for his meaning is (as I take it) that the ordinary should intermeddle with them for the disposing of them. *And if a man take a coat-armour which hangeth over a dead man's tomb in a church, the indictment must be bona executorum, of the dead man: but if a grave-stone be taken away, the indictment must be bona ecclesiæ +. * 48. E. 3. Indictment 27. + Lambard Eizenarc. 494, 495. CHAP. VIII. THAT THE WORDS OR TERMS USED IN BOOKS OF LAW OUGHT TO BE UNDER- IT is not possible for a man to be skilful in any science, unless he do perfectly know the words which do occur and are often used in that science. I do not mean words of art only, which by Lexicons and explanatory books may easily be conceived, but such as do import and concern the objects of the science, about which it is principally conversant. To pursue, therefore, briefly an interpretation of such words as in the law are material. I take it not to be dissonant from order to begin with the diversity of laws, and to shew how these words, the law of nature, the law of nations, the law civil, the common law, the statute law, the customary law, jus-merum, and equum et bonum, are used in the law books, and are to be understood, that so it may be known how and in what sort one law differeth from another, and of what quality and condition that law is to which the student is addicted, or upon which he doth ground his reason. The law of nature therefore is, that which the nature of natures, or the God of nature of the philosophers called Natura Naturum, hath taught all creatures that have sense, by the mediation of nature created of which they consist: for this law is grounded in the root and inward parts of nature, and therefore one sayeth well, Habemus non scriptam sed natam legem, quam non didicimus sed hausimus: This is according to Justinian's definition, in his Institutes, to whom D. Hotoman may seem at first to do injury, by objecting, that by this definition, to eat, to sleep, to move, and to rest, are parcel of the law of nature: and though this be an swered by some, cluded from the *that these things are ex definition, by this word Jus, yet what absurdity would follow, if such things should be granted to be parcel of the law of nature, why not as well the repulsion of force, which apparently proceedeth from the law of nature? For in truth there is no difference in the effect betwixt external force, and the force which a living creature having sense should do to itself, if it should not perform these aforesaid actions of nature, as to eat, to sleep, to move, and to rest, whereby nature is preserved and kept in time. This is plain in men, who by the civil law are said to kill, in denying nourishment to themselves, or others, whereby life and nature may be maintained. And Josephus writeth well, that it is against the nature of living creatures for any of them to kill itself. + But D. Hotoman doth further cavil, following his fore-father Valla, that law cannot be applied to beasts, no more than injury may * Gou. li. 1. lect. jur. c. 19. |