with the Ciuill Law in the three sorts of bonds two I haue shewed that our Law agreeth with yours and as to the last it agreeth in the substance of the thing though not in the sound of the name For an action of Dette may by our Law be brought vpon a recouerie or iudgement conteining the dette For if a man recouer dammages in a writ of Wast he may sue a writ of Dette vpon this recouerie if he will l Fitzh Nat. be 122. C. 20. H. 7. 3. And so for dammages recouered in a Redissesin a writ of Aiel Cosinage and a writ of Entre sur disseisin m 43. E. 3. 2. But in that you said that 15. The common Law dissenteth from the Ciuill in not making the redeliuerie of a bond an acquitance the redeliuerie of a writing Obligatorie vnto the obligee is in steede of an acquitance this is not so in our Law For though it be notably well obiected by Fineux 1. H. 7. that there be as manie waies for him to whom a deede is made to dissolue the deede as for him who maketh a deede to make it a deede as where as it is ensealed he may break the seale and whereas it is deliuered as the bond of the partie he may redeliuer it in steede of an acquitance m 1. H. 7. Dones C. per Fin. Yet it is better aunswered by Mast. Keble that a redeliuerie may be either of a deede executorie or a deede executed The redeliuerie of a deede executorie hath some operation in Law n ibi per Keble as if a man deliuer a writing obligatorie as a scroule to I. S. to deliuer as his deede to I. N. vpon a certaine condition perfourmed if I. S. deliuer the scroule back to the bailor before the deliuerie of it to I. N. and before the condition perfourmed the bailor shall not anie way be charged by vertue of this bond But if it had been deliuered at the first as his deede to I. N. vpon a condition perfourmed o Perkins tit Faits Now the redeliuerie of it nequè ligat nequè soluit worketh nothing because a deede can haue but one deliuerie and if the first deliuerie be good the second is voide if the first be not good the second may be good p 1. H. 6. 4. And so it is of a release executed for if a man be disseised and after release to the disseisor and after the disseisor redeliuereth the deede of release to the disseisee and saith that he will not haue aduantage of it yet this is to no purpose for by the release executed no right may bee demaunded by him to whom the deede is redeliuered but a right may be defended by him who is in possession to whom the first deliuerie was q 1. H. 7. Dones c. per Vauisor Keble But if the disseisee reenter vpon the disseisor and the disseisor bringeth an Assise and hath not the deed of release readie to intitle himselfe to the land the other may still hold possession of the land but then the redeliuerie of the deede of release doth him no good directlie but onelie per accidens because the want of it doth hurt to the disseisor Nomomath Now I pray you resolue vpon 2. Diuision this whether shall the Executor or Administrator be charged in all respects with the dettes and Legacies of the testator or how farre forth they shall be charged For I accompt a Legacie to be a kind of dette Codicgn The making of an Executor which 1. By the Ciuil Law the Executor succeedeth in vniuersum ius desuncti of vs is tearmed haeredis institutio is to appoint one to be an vniuersall successor in the right of all his goodes after his death by his Testament or last will r C. de haere l. 1. which is not of force till the death of the testator but vntill that time it is kept clausum signatum and as Isiodore saith rather according to the truth of the thing then according to the true deriuation of the word as manie times he doth it is therefore called Testamentum quia non valet nisi post testatoris monumentum vntil the testator be laied in his graue ſ Isiodor li. 5. And such Testaments must be insinuated to 2. Insinuation of a wil necessarie by the ciuill Law the Officiall or Commissarie of the Bishop of the Dioces within foure monethes after the death of the testator which insinuation is appointed by Law Ad euitandum falsitatem et sciendum veritatem Testamenti t L. iubemus C. de test l. si C. de fideicom But de iure Praetorio though a Testament be not made yet some person may be appointed by the Praetor to administer the goodes u Iusti de bo poss §. 1. et ff eo tit And as well the administrator 3. By the Ciuill Law the executour or administrator ought to make an Inuentorie of the goodes of the partie deceased as the executor ought to make an Inuentorie or sufficient Catalogue of all the goodes of the partie in whose right they succeede which shall come to their handes And it is a good and safe waie for them so to doe for if they doe so they shall not be charged further with anie debtes then the goodes of the testator or him that died intestate will extend And such an Inuentorie by our Law cannot be disprooued vnlesse the number of the witnesses that disprooue the Inuentorie be twice as manie in number as they which doe prooue it which are commonly called Prizors uu cum Io. de si instru And the Inuentorie ought to be begun by the Executor within 30. daies after the death of the testator or at least within 30. daies after that he hath notice that he is made Executor and it ought to be finished or consummated within thirtie daies after or at least within a yeare after if the thinges be farre distant and dispersed in remote places and then he shall be charged no further then the goodes will stretch otherwise he shall be charged in solidum for the whole dette d Gazal in verb. Inuentar Canonolog These thinges which you haue proposed are not reiected of vs but are of validitie in our Law Nomomath I pray you Anglonomoph rip vp the particulars of Codicgnostes his late discourse as distinctlie as you can for these things vttered by him are of great importance and vse at this day wherefore I would haue you studiouslie and with care to discusse these things Anglonomoph In the substance of these matters 4. The power of the Executor dependeth wholie vpon the will of the Testator by the common Law which he hath mencioned I doe not see at the first glimse any discordance in our Law but in the circumstance there will be some dissonancie and variance First to speake of the power of an Executor by our Law it dependeth wholie
by the said R. B. lawfully ingendred then liuing and the plaintife said that hee ought not to bee barred from his action for he said that after the making of the said writing before the said feast namely the 12. of Iune anno c. the said plaintife at M. in the countie of Lancaster tooke to wife the said I. and they had issue betwixt them H. Bolde and after before the said feast the said I. and the said B. dyed the said H. being the sonne of them both at the time of the death of the said I. being then full liuing and after and before the said feast namely the twelfth of Iune the saide H. B. at B. aforesaid dyed and the defendant hereupon did demurre in law And the question was whether this word tunc in the condition should be referred to the time of the death of the wife and it seemed to Mountague and Baldwin that it should not but that it ought to bee referred to a time certaine for euerie tunc relateth to his quando but they thought that it should bee referred to the feast which is certaine and not to the death of the woman which is vncertaine but Shelley and Knightley thought otherwise For in diuers cases relation shall not bee made ad proximum antecedens as if a man make a lease for life the remainder in taile the remainder ouer to I. S. in forma praedicta this shall not bee referred to the estate taile which doth next preceed because it wanteth the word heires to make an estate tayle and therefore it shall be referred to the first estate Which later opinion if it bee lawe then by our law si may signifie and may make other wordes to signifie an vncertaine cause of the accomplishment of a condition h 28. H. 8. 14. Dy. Boldes C. And whereas hee hath said that sometimes it signifieth a certaine cause as if the iudge doe giue iudgement for me So likewise it signifieth a certain cause in our law 7. Si signifieth a certaine cause at the common law for 8. E. 4. the case was this An action of debt was brought vpon an obligation by the Dutchesse of Suffolke the defendant said that it was endorsed with this conditiō that if the defendant should stand to the arbiterment of the said Dutchesse touching all maner of suits c. betwixt him one B. that then the obligation should be void c. And this was admitted to be good and thereupon it may be concluded that si sometimes in our lawe importeth a cause certaine as the Dutchesse in this case was a certaine cause of the arbiterment i 8. E. 4. 1. 9 Dutchesse de Suffolke C. So 23. Eliz. the case was that two were bound to stand to the arbiterment of two if they did make their awarde within two daies after the date or making of the said obligation and the obligation bore date die Sabbati ante prandium and the award was made the same day post prādium and this was held to be good because it shall bee intended that it may be made at any time after the date of the obligation vntill two daies immediatly following be past And as in 8. Si by the common law may signifie an vncertaine euent the ciuill law so likewise by our law si whether it be expressed or implyed may signifie an vncertaine euent for if a rent be graunted for life to I. S. the remainder to him that shall first come to Paules the next day in the morning this remainder is good though it be vpon a si implyed if I. S. dye not before the next day and if one come to Paules the next day in the morning and if hee which commeth thither be a person able to take by the graunt k Assis pl. 47. Perk. 13. sect 56. And whereas he saith that by their law it signifieth 9. Si. signifieth a condition by the common law a condition or a conditionall disposition so it doth likewise in our law as it is well recited in my Lord Dyers reports out of Bracton Scito quòd vt modus est si conditio quia causa And as l 4. Mari. 139. Dy. to his conceited case of the puerperie I take his reason to bee verie good that benig na interpretatio facienda est in fauorem libertatis Codicgnost What say you now sir Nomomathes I say that as for such a paradoxical fantasie Non persuadebis etiamsi persuaseris 2 Diuision But I pray you resolue me this If I sel to another certain land for an hundred pound vnlesse another the next moneth following doe giue more for it by fiue pound at the least whether doth this word vnlesse make a condition or it is an idle clause and vneffectuall Codicgn I take it clearely to make a good condition for though the sale be pure and vnconditionall 1 The word nisi or vnlesse doth sometime signifie a condition at the ciuill law yet it is resoluble and defeasible vpon a condition contingent m l. 2. §. si in diem ff pro emp. for the words following may qualifie and gouerne a direct graunt or deuise as if the testator say I deuise vnto A. a C. li. for the making of my tombe n l. quib diebus §. fi ff de condi de mon. or if he said I deuise vnto him a hundred li. pro eura liberorum meorum sustinenda or if he said I deuise vnto him so much to endow certaine poore maydens or to ransome certaine prisoners out of captiuitie here there is no condition implyed but onely a limitation or modification to what intent or purpose the deuise is o l. mille C. de epi. et cle So if the testator say I deuise to Titius C. li. 2 Law is a modification or limitation of a graunt is made which I will shall be paied vnto him out of my money which I haue in such a place as namely in such a closet or such a chest if in the closet or chest there bee no money then there is nothing due but if there be a lesse summe yet all the mony is due by reason of the intent p l. quidam testamento ff de leg 1. l. Lucius ff de ali ciba And if the testator deuise to euerie one of his free men a seuerall certaine yearely maintenance out of his landes in Dale if his landes in Dale be not sufficient for these seuerall maintenances yet they ought to be supplyed of his other landes q l. Paulo Callimacho §. fi de leg because the adiection and mentioning of the place was onely vsed for a certaine demonstration of the lande which should bee charged with payment and not for the taxation or restraint of the legacie for legatum non restringitur But if a man deuise ten pound to his daughter vntil she mary by this is intended a yearely paiment of x. li. r
not meant that in regard of fiue pounde receiued of Titius I doe make him my heire or executor but the words are conditionally meant if the testator doe receiue 5. li. of Titius c h l. a testatore ff de condi demon So if I deuise to one xx li. pro docendo talem discipulum this pro doth signifie a condition because by common vsage prius docendus est discipulus quà m soluendū salarium magistro i l. nec semel ff qu. di le ce So if I doe contract with a woman in this sort I promise vnto you A. that you shal be my wife donec terra ponatur super oculos meos these words are not generally to bee vnderstood for so the partie may lay earth vpon his eyes and slip the collar and breake promise but they must be vnderstood according to common intendement that she shall be his wife vntill his carkasse bee couered with earth that is vntill he be buried so it is if he should haue said Donec oculi os mihi claudantur k c. ex literis 1. de spon Angl. Our law many times taketh the words 2 The commō law taketh conditions many times strictly of a condition strictly to preserue an estate A lease was made to one vpon conditiō that the lessee shal not alien to A. the lessee alieneth to B. who alieneth to A. the cōditiō is not brokē for a condition which goeth to defeat an estate must be taken strictly l 31. H. 8. 45. Dy. And 28. H. 8. the case was thus A lease for yeares was made by indenture the lessee did couenant and grant that if he his executors or assignes did alien that it shold be lawful to the lessor to reenter after he made his wife his executrix and dyed the woman tooke an other husband which aliened The first question was whether the wordes of the couenant abouesaid did make a cōdition And if it were a condition the 2. question was whether there were any breach of condition in the case Some held that there was no breach of condition because the husband was possessed of the tearme by acte of law is not an assignee no more then a tenant by the curtesie is or the land of a villaine But Browne and Shelley held that the husband was an assignee in law and that the land was subiect to the cōdition into whose hands soeuer it did come m 28. H. 8. 6. Dy. But lately in Ridgeleys case the condition was extēded by equity for the safegard of the party The case was thus A man was bound to another in a c. l. that he shold discharge the obligee saue him harmeles of all suits incumbrances against I. S. and after the said I. S. sued the obligee proceeded vnto iudgement wherefore the obligee brought an action of det vpon the obligation and the defendant pleaded non damnificatus est And Beamond Sergeant did maintayne the plea in his argument because that hee was not damnified in the eye of law vntill the goodes or the lande or the person of the plaintife were actually charged For before that time he was onely chargeable but not charged Sergeant Harris argued to the cōtrarie for he said that he was chargeable to the execution of the partie so not saued harmelesse two sorts of damages were held by Iustice Walmesley the one executorie the other executed executorie which a man may in future time sustayne Executed as if the land or the person shoulde bee in present execution And if the disseisee make a release to the disseisor and a straunger cancelleth the deede of release the disseisor may haue an action of trespasse against him and yet the disseisor doth continue possession and is not as yet actually damnified And Iustices saide that the land of the party was in some sort charged for none in such case would buy the land of the partie but onely vnder the value because of the iudgement executorie n 33. Eliz. Ridgeleys c. But wee haue a rule in our law that when a condition is to bee performed to a straunger it is to bee performed most strictly and if the condition bee performed at an other place this is not sufficient o 36. H. 6. 8. And 21. H. 6. it is said that if a man be bound that he or his feoffees of the mannor of W. shal graunt to the obligee 20. s. rent for tearme of life and he hath three feoffees two of the feoffees cannot graunt this rent p 21. H. 6. 19. But 7. E. 4. it was affirmed in the kings bench that if a man were bound to make one a sure sufficient and lawfull estate in certaine land by the aduise of I. S. if he make an estate according to the aduise of I. S. be it it sufficient or not or lawfull or not he is excused of his bond and a like matter was in the common place the same terme and they were of the same opinion q 7. E. 4. 13. Nomomath I wold gladly be satisfied in this when a man maketh one his heire or executor 7 Diuision and if hee refuse to performe any thing that is comprised in his will then he willeth that I. S. shall bee his heire or executor and shall performe his will and shal seise his goods and enter into his lands post haereditatē aditam though the heyre or executor haue intermedled with the will and haue performed some thinges according to the intent of it Now if the Testatour die and the heire or executor haue perfourmed some thinges of the will but refuseth to perfourme other some and hath seised the goodes and entered into the landes of the partie deceased Whether may I. S. enter vpon him for the condition broken and defeat his whole interest in the landes or goodes or shall he still reteine part of the landes and goodes because he hath perfourmed part of the will Codicgn I. S. or the substitute of the Testatour 1. There may be a substitution of one heire after an other or of one executor after an other at the Ciuill Law is now by the will and breach of the the condition become directly the heire or executor to the Testatour And all the authoritie or interest of the fomer heire or executor is vtterlie determined frustrated and defeated r Insti de vulga substi §. quo casu 2 The heire at the ciuill Law must succedere in vniuersum ius defuncti for the authoritie or interest of the heire or executor by our Law may not be apporcioned but he must succedere in vniuersum ius defuncti ſ ff de verb. signif l. nihil aliud est haereditas et l. bonor eo tit And there is an other substitution in our Law which we call a reciprocall substitution and it is thus The Testatour saith I doe make S. and T. my sonnes within age my heires and
subiectes to come to anie place at the Citation of Bishops ad faciend'aliquas recognitiones vel sacramenta praestanda nisi solùm in causis matrimonialibus et testamentarijs And M. Fitzherb thinketh that 4. The Barrister disproueth the general citations of Bishops ad sacramenta prestanda by the common Law these generall Citations which Bishops make to cite men to appeare before them pro salute animae without mentioning any speciall cause is against Law b Fitzh nat bre 41. A. Nomomath Why may they not vse such generall Citations as well as a Iustice of peace 5. Nomomathes encountreth him in this point by your Law may make a precept to bring one before him to aunsweare to such things as shall be obiected against him without shewing any speciall cause c Crompt Iust p. 131. et 132. And if by your Law they can receiue no oath but onelie in matters Matrimoniall and Testamentarie then it must needs be intended that though their processe be generall ad sacramenta praestanda yet it is specially meant of Matrimoniall or Testamentarie causes For I remember a good rule in the Canon Law to this purpose Quando constat de lege sufficit generalis allegatio d 28. q. 1. sicut enim in si But what saie you to this matter of oathes Codicgnostes Codicgn Our Law differeth little or nothing 6. The Ciuill Law agreeth with the Canon in matter of Oathes from the Canon law in the discourse of oathes And as the Canonistes wee make two sortes of Oathes Conuentionale and Iudiciale Conuentionale or Promissorium is when we sweare de futuro that we will giue some thing or do some thing c e Bartol in l. si quis ff de si dâ—nstrum Iudiciale is when the Iudge for the triall of the truth of a controuersie and the infourming of his owne conscience vrgeth the partie to take an oath f ff eo tit l. ius iurand Of both these riseth an action triable wel enough by the Canon Law for in this matter the Canon is the sterne and motiue of our iudgements and therefore we hold the rule of the Canon Law firmely Praestans et recipiens iuramentum contra Canones punitur g Gl. verb. paena capi grauis de censi Nomomath Well I will trouble you no further about questioning of things belonging to seuerall iurisdictions but will now passe to inquire somewhat of such thinges whereof an Action of the case will lie The second Dialogue Of Actions vpon the Case NOnomath I haue some time meruailed Codicgn wherefore an Action vpon the case which you tearme actionem iniuriarum should not haue a speciall name aswell as other actions when as at the Common Law euery action beside this hath his speciall name As an action of Dette of Accompt of Wast of Detinue of Couenant c. And in your Law there is 1. Diuision Actio ex stipulatu actio empti actio depositi actio de pauperie c. I pray you therefore let me know the reason hereof Codicgn What is more ebbing and flowing then mans inuention for some things it hath wordes too many for some it wanteth names Therefore Iuuenal when he sought for an apt name for that age which ensued the fower famous ages being this last age of the world and worse theÌ„ the yron age he nameth it by giuing it no name for his inueÌ„tion could not find out any proper appellation and thus resolueth quorum sceleri non inuenit ipsa Nomen et a nullo posuit natura metallo And because our sage Maisters of the Law could not deuise as manie seuerall names as there be seuerall iniuries for what Dictionarie could conteine so many names and because the name of the signe should be ample and large enough for the thing named or signified 1. The reason is shewed wherefore actio iniuriarum hath so generall a name at the ciuill Law therefore they deuised that actio iniuriarum might serue for all wrongs for which they could not frame particular names Anglonomoph Indeede as D. Stephens his water was fit for manie diseases and yet had neuer any speciall name but was generallie 2. The Barrister compareth an Action vpon the case at the common Law to D. Stephens his water tearmed Doctor Stephens his water so likewise an Action vpon the case stretcheth as a remedy against manie offences Yet it hath no other name then an Action vpon the case And it is therefore so tearmed because euerie mans case must be in that action speciallie and at large set downe for in that action the writ ought to comprehend the speciall matter as well as the declaration a 7. H. 6. 47. Wherfore in an Action vpon the case brought against one who was reteined to buie a Manor for the plaintife which he after purchased for himselfe in deceit of the plaintife and the plaintife did not shew of whom the Manor should be bought in the writ but onelie in the declaration the writ was abated b 16. H. 6. Action sur le case 44. 48. E. 3. 6. Brief 627. 33. H. 6. 26. 11. H. 6. 2. 22. H. 6. 53. Nomomath I pray you satisfie me in this If 2. Diuision a man be enterteined or lodged in an Inne and some of his goodes be taken from him out of the Inne by a straunger whether may he haue an Action vpon the case against the Inne-keeper Anglonomoph Doubtles he may if it were a common Inne in which hee was lodged c 2. H. 4. 7. 5. Mar. 158. Dyer And if the partie so preiudiced doe bring an 1. An Action vpon the case lieth against the keeper of a coÌ„mon Inne if goodes be imbeasiled Action vpon the case against the hoast it is no plea for him to saie that the plaintife did not deliuer any goodes vnto him or that the plaintife himselfe had the key of the chamber And an Elegit hath been awarded in such case of the land which the defendant had the daie of the iudgement giuen and not the daie of the writ brought And a Capias ad satisfaciendum lieth not because it was a laches and no wrong d 42. E. 3. 11. And therefore the wordes of the writ be pro defectu ipsius B. e Fitzh nat bre 94. B. But the opinion of Hill is 11. H. 4. that if the Inne-keeper in such case doe notifie vnto the guest that he can not attende vpon him and notwithstanding he will needes be harboured there at his perill the Inne-keeper is discharged f 11. H. 4. 45. per Hill And 22. H. 6. the difference 2. If a stranger lodge with me by my consent and do imbeasill goodes the Inne-keeper shall not be charged is taken that if a man doe lodge in chamber with me by my consent meerlie and not by the appointment of the hoast and he robbeth me the hoast shall not be charged Otherwise is it
in this consorteth with the ciuill law for it is a good plea for the executor to say that hee had fully administred before he had notice of the writte of the plaintife g 7. H. 4. â—0 Plowd com 277. for though hee doe pay debtes vpon contractes the writte depending against him vppon a bonde whereas hee had no notice of the suite he shall not bee in such case charged h 2. H. 4. 21. And 3. H. 6. in an action of debt vpon an obligation of twentie pound brought against executors they pleaded riens enter maines that they had nothing in their hands and it was founde by verdict that they had tenne pound in their handes wherefore the plaintife had iudgement to recouer so much as was found of the goods of the deade and the dammages of the goodes of the executors for their false plea i 3. H. 6. 4. But in Dauises Case in the Commentaries it was otherwise ruled that nothing should bee put in execution vpon such a plea but onely the goodes of the dead k Dauis C. com 440. But in a Fieri facias vpon a recouerie against executors the Sheriffe returned a deuastauerunt wherefore the Court did graunt a writte to haue execution of the goods of the dead and if there were no such goods then of the goods of the executors l 11. H. 4. 70. And 4. E. 3. in an action of dette brought against the executors it was found that they had fully administred and the opinion was that the Iurors should set downe in certaine how much they had administred because they shall not bee charged but onely according to that which is found by inquest m 40. E. 3. Statha tit executors But it was said 34. H. 6. that when the executors doe plead fully administred but onely for so much their plea is found the plaintife shall haue iudgement to recouer all his dette but he shall not haue execution but onely of the goods in their hands n 34. H. 6. stath tit Execut. But it is good to bee considered what may properly bee saide assets in the handes of the 9 What may properly be said to be assets in the hands of the executors executors if the executors doe merchaundize with the goodes of the testator the increasall of them shall bee assets in their hands and shall charge them and they cannot plead that they haue fully administred when they haue such assets o 11. H. 6. 35. per Bal. And if executors doe sell the goodes of the testator and doe buy them againe they remayne in their handes as assets because they were the same goods which were the testators p 18. H. 6. 4. But then it seemeth that the money which they had for the sale of the goodes was wasted by them and not conuerted to the vse of the testator for otherwise there is no reason but that they should haue a propertie in them to their owne vse for if the executors pay the debtes of the testator of their owne goodes they may retaine the goodes of the testator to the value in their handes to their owne vse q 6. H. 8. 2. Dy. But it was held by M. Fitzherbert 27. H. 6. that where a man is indebted 40. pound to one and 30. li. to another dieth and hath but 40. li. and his executors or administrators agree with the creditor of 40. li. for 10. li. and haue an acquittance of the 40. li. yet the thirtie pounds which remaineth in their hands shall bee assets r 27. H. 8. 6. per Fitzh And so a gage being ransomed shall bee assets in their handes but according to M. Frowikes opinion it shall not bee assets if it were ransomed with their owne money Å¿ 20. H. 7. 2. But as M. Brooke noteth wel abridging the case abouesaid of 20. H. 7. the money which commeth in lieu of a pledge being gaged to their testator shall bee assets in their handes So it hath beene adiudged that if a man make a feoffement vpon condition that the feoffee shall sell the lande and distribute the money to the vse of the testator whereupon he selleth the land and the feoffor maketh him his executor the money taken for the land sold shall be adiudged assets in his hands t 2. H. 4. 21. Executors 51. 3. H. 6. 3. So if the executors pleade fully administred and it is found for them and after certaine goodes of the testator come to their handes wherefore he which brought the first action of dette bringeth the same against them againe this action is well maintenable u 7. E. 4. 8. per Littlet Danby Nomomath You haue satisfied mee for this point Anglonomoph Now I pray you Codicgnost strayne your endeuour a little to resolue me vpon point of execution to be sued vpon these dettes I haue reade that in ancient time it was a law amongst the Romans that if a man greatly indebted were not able to discharge the dette his bodie was mangled and cut in 1 The rigorous law of the Romanes in their execution for dette peeces and the greatest portion of it giuen to his greatest creditor a lesser to him to whom he did owe lesse and so pro rata x Paul Manut lib. de legi Roma which lawe beside the monstrousnesse of it in such a common weale was verie inhumane for the creditors might if they would in their furie by this law cast the members and partes of the bodies of their debtors to dogges and other brutish beastes so that that the Romanes had not so much care of their Senators gentlemen and citizens as the friendes of Diogenes had of him For when the Cynicke laye vpon his death-bed his friends which were then about him asked him in curteous manner where he wold be buried he thinking perhaps that a man was nothing but a mind answeared them that he would bee buried in the dunghill and they replyed that that would be verie inconuenient for the dogges would then rake him vp and deuoure him Then said he lay some staues by mee to beate away the dogges but they told him that hee could haue no sence in his bodie after his death then quoth he what neede I feare the dogges This was but the glaunce of Diogenes who made more accompt of his scoffe then his state But others more ciuill doe thinke it a great losse shame and indignitie that a mans bodie should not be buried wherefore Lucan sharpely inueyeth 2 The execution of the Romanes greatly to bee reproued because it did depriue men of buriall against Caesar Tu cui dant paenas inhumato funere gentes a Luca. lib. 7. And it is the iudgement of all antiquitie that without verie heynous fault the partes of a mans bodie should not bee debarred from sepulture Romulus though hee had caused to be slaine his brother Rhemus and after his death did continue his fury
Heresie subiect to the censure of the Canon Law onelie or to the iurisdiction of all your Lawes I pray you shew me how and how 10. Diuision farre forth it is punishable Canonolog There be two thinges which make Heresie First it must respect and concerne the Articles of our Faith Secondly there must be a stubborne and pertinacious affirmation for there must be error in ratione and pertinacia in voluntate h Cle. 1. §. porro de sum trini for where there is error but not obstinacie there the partie can 1. Two Sorts of Heretikes formatus and suspectus not be said to be formatus but suspectus haereticus and then he holdeth the error inquisitiue but not adhaesiue But he that is formatus haereticus is thus punished in our Law he is excommunicated he is bereaued of all ecclesiasticall promotion he is deliuered vp to the secular power and all his goodes and landes be confiscated and taken away from him i c. ad abolend de haeretic c. Excommunicamus de haeret et c. secundū leges eo tit lib. 6. But in two cases their landes are reserued and left to their children First if they reueale their fathers heresie k c. Vergent in sen de haeret c. vt inquisit de haere lib. 6. 2. If they haue been so long in possession 2. In what case the wife and children of Heretikes shall enioy their landes that they may prescribe l c. vt officium de haere lib. 6. But the dowrie of the wife of an Heretike is not forfeited vnlesse she do marie him knowing of the heresie m c. de creu eo tit lib. 6. Codicgn Our Law agreeth to that which you haue said And further prescribeth an other punishment which you haue not mencioned against such offendors for it saith that they shall be burnt aliue n l. quisquis C. ad l. Iul. maiest Et c. vt inquisitionis de haeretic lib. 6. Nomomath Yet I haue read in a learned Ciuilian that in the whole bodie of the ciuill 3. Heretikes by the ciuill Law not punishable by fire Law it is not recorded that Heretikes should be put to death by fire and therefore he is somewhat bold with the Canonistes and calleth them igniuomos canonistas o Alber. Gentil lib. lecti 2. Codign Indeed our Law as to that point is wholie grounded vpon the Canon oo c. ad abolend de haeretic Canonolog It is not grounded vpon the Canon for we referre the matter wholie and finallie to the secular Magistrate as your writ de Haeretico comburendo Anglonomoph doth testifie Anglonomoph Indeed in our Realme in auncient 4. The Canonist poasteth the punishment of Heretikes to the cōmon Law time he that was to be burnt for Heresie was first to be conuicted of the same before the Bishop of the diocese c. and ought to abiure it And if he did after relapse into it againe and were thereof condemned in the said Dioces then he should be sent to the secular power to doe with him whatsoeuer should please the king ooo Fitzherb nat bre 269. But afterward by the Statute of 15. of king Henry the eight p 15. H. 8. cap. 14. it was ordeined that he who had once abiured heresie and was relapsed 5. The professor of the common Law bandeth back againe the punishment of Heretikes to the Canon Law and was conuicted hereof before his Ordinarie that notwithstanding the Ordinarie ought not to commit him to the laie power without the kinges writ first purchased herevpon to burne him Nomomath Then I perceiue the whole act both of adiudging to the fire and of sending the partie to receiue that punishment dependeth now wholie vpon the Canon Law and the sentence of the Bishop framing the style of his iudgement according to the Canon Law Canonol The secular power putteth him to death but we are discharged of it Nomom Nay verily no more then Nabuchadnezer can be acquited of exposing the life of Daniell to hazard for he might as well haue excused himselfe and said that he did not meane to kill him but did onelie commit him to the curtesie of the lyons And as he did not personally put him into the caue within the grate so neither do ye personally thrust these which you tearme Heretikes into the fire nor bind thē vnto the stake Nabuchadnezers punishment I haue reade of which was grieuous and horrible But I doe not reade of the admittance of such excuse And when the Iudge of Iudges shall examine such firie proceedings it will be in vaine to excuse themselues by the fire and the chaine and the stake or by the Shirife and the Bailifes if the Iudgement haue been wrongfull and vniust It will be like the excuse that Phillip king of Macedonia made when he was charged with the expugnation and ouerthrow of the Citie of Chius Nequè ego Chium expugnaui sed Prusiam socium amicum expugnantem adiuui q Liuius lib. 32. for so Prusias might haue said that he did it not but onelie encouraged his men to do it So Brutus and Cassius might be excused from killing themselues because they did non inflict the wound but did will and commaunde others to doe it r Flor. lib. 4. histor After as bad a sort Dido cleareth her selfe of her death though not any waie to be cleared Praebuit Aeneas et causam mortis et ensem Ipsa sua Dido concidit vsa manu rr Ouid. Fastor 3. But I will insist no more of this matter Now 11. Diuision resolue me whether any Church-land be demaundable at the Spirituall Law Codicgn Religious houses and landes belonging 1. What things may be tearmed Church-land by the Ciuill Law vnto them deputed to holie vse are comprehended in our Law vnder the name of Church-land or lyuing And all landes which belong to Oratories or priuate Chappels annexed to the particular houses of laie men by the authority of the Diocesan and the landes belonging to them are comprised vnder the name Church-land or Church liuing ſ C. de epis cler in lib. Orpha Likewise that plott or parcell of ground in which a dead man is buried or wherein his head or any part of him is buried becommeth consecrate and religious and therefore cannot be morgaged nor pledged t ff de reli sump fune C. quae res oblig poss l. 1. and of such landes our lawe taketh notice and holdeth full iurisdiction Canonol But in strict reason such things do belong to the iurisdiction of the spirituall court u 42. Disti oratorium Anglonomoph These matters are diuersly taken in our law for in action of trespasse conceiued by the Vicar against the Parson for the breaking of his close and for his lambes taken away whereas the close supposed was the Churchyard parcell of the vicarage of the 2 Of Church-yards the spirituall court
the case was such A man being found in arrerages vpon his account did promise to the dettee that if he wold forbeare him per paruuÌ„ tempus that hee would pay him the money without further delay and the dettee did forbeare him accordingly and after vpon this assumpsit brought an action vpon the case and it seemed to three of the Iustices of the common pleas that the action would not lie because that paruuÌ„ tempus was no good consideration neither could it be beneficiall to the partie but one of the Iustices saide that if the dettee had brought an action vpon the case without any consideration alleadged and had proued the dette that would haue sufficed for that had beene an assumpsit in law and that there must be a reciprocall consideration in such case may most clearely and euidently be proued by 44. E. 3. A writte of dette was brought and the plaintife declared that the defendant did owe vnto him fiue poundes for a house which hee had sold vnto him the defendant said that there was a couenant betwixt the plaintife the defendant that the pr shold remoue the same house at his owne costs charges within a certaine day to a certaine place and when he had so remoued it that then the defendant would pay him his money and that the house or the frame of the house was not as yet remoued and this was held a good plea b 44. E 3. 28. And where two considerations are to be accomplished the performance of them both is to bee auerred Wherefore the case was that in an action of trespasse the defendant pleaded a concord that he before a certaine day should make certayne windowes and should paye certaine money and he said that he payed the money by vertue of the concord before the day and demaunded iudgement si actio c. But hee spoke nothing of the making of the windowes and the plaintife replyed Nul tiel accorde and it was for the plaintife and it was held by all the court a ieofaile For when they accorded that the defendant should doe two things the concord is not performed vnlesse both be done and so the matter of the plea is not good and therefore the replication cannot make it good c 6. H. 7. 10. And if I buy a horse of you for sixe pound you may deteine the horse till I haue payed you d 10. E. 4 1â— and so if one buy an horse of an other in Smithfield and do not pay to the vendor money presently but doth onely promise it the vendor may sell it to another immediately and the other can haue no remedie against him for otherwise he may be compelled to keepe his horse in perpetuum against his will e 17. E. 4. 1. per Choke And to this agreeth the booke of 21. H. 7. where it is said that in the bargaine it is implyed that the bargainee shall pay the money presently otherwise hee shall not haue the thing solde but if it were for a certaine day the money were not to bee payed before the daye because the bargainor hath giuen vnto him expresse libertie to pay at any time within the time prefixed f 21. H. 7. 6. And so is the booke of 28. H. 8. that a contract or bargaine is not good without present payment vnlesse there bee a certayne day limited so that one of the parties may haue an action of dette for the money and the other a writte of Detinue for the wares g 28. H. 8. 30 Dy. and if a man assure and promise to one that he will make for him certaine waines for carriage c. and hee taketh parcell of the money before hand to do it and after he doth it not according to his assumpsit the other may haue an action of trespasse vpon his case h Fitz. N. B. 94. A. so an action vpon the case was brought because the defendant promised to the plaintife that if the plaintife wold discharge I. S. of execution in which hee was at the suite of the plaintife that then he would pay vnto him his dette and in truth the promise was made to the wife of the plaintife to which the husband agreed and thereupon he discharged the partie and it was ruled by the court that the action was maintenable because a feoffement of lands or gift of goods is auaileable to the wife if the husbande doe not disagree so it is of an assumpsit i 27. H. 8. 24. 25. Nomomath Trouble your selfe no further Anglonomoph let me aske this one question of Codicgn whilest it resteth in my mind Suppose that I haue hyred a ship or gallie to transport my family and some of my houshold 4. Diuision goodes by lawfull permission and I agree to pay for the carriage of euerie poll or person of them a certaine summe of money admit that three or foure of them die in the ship whether shall the owner of the shippe haue the entire summe of money or shall it bee apporcioned for them that be dead before they be brought to the land k Ludouâ—c de Rom. in singulari Codicgn To cleare your doubt this diuersitie must bee vnderstood if the owner of the 1 That no fare ought to be payed for them that die in a ship if the master of the ship did assume to bring them safe to shoare shippe did make a couenant with you that he would bring them safe to such a place then surely you ought to pay no fare for them that bee dead l Id. in d. singu ad regu praedict but if the couenant were to take them into the ship and to carrie them to such a place theÌ„ the law wil be otherwise and so if a 2 If a child be borne in sea-faring nothing is to be paied for that child child be borne in the ship whilest it is vpon the sea there is nothing due in respect of that child m ff locat l. si adest §. si quis mulier Canonolog All contractes are bonae fidei and what is a contract but stipulatio verborum so that it is to be taken as the words doe sound no violence being offered to apparant equitie n Pecki ad reg iur Anglonomoph In our law there is a case not much swaruing from this purpose if we stand not too much vpon the common and verball way to go to the end of a question I. B. did 3 The barrister putteth a case of carrying a horse safe and sound ouer Humber declare by bill that A. at a certaine day and yeare vpon Humber did assume to carrie his horse being taken into his barge ouer the water of Humber sound and safe and the said A. did surcharge his barge with other things by which meane his horse perished in the water and this was held a good cause of action o 22. Assis pl. 41. but surely in this case without
slaunder and diffamation which blemisheth the good name of others it detesteth and vtterly disfauoureth condemneth punisheth as a stepdame vnto rancor violent speeches the abortiue children of malice Wherefore an action vpon the case will lye at our law for calling the plaintife theefe Å¿ 27. H. 8. 22. and for calling the pr a false and periured man t 28. H. 8. Br. Acti sur le case 3. 30. H. 8. Br. Acti sur le case 104. so an action vpon the case lyeth for calling the pr false iustice of peace u 4. E. 6. Br. Acti sur le case 112. But to publish one for his villaine who in truth is his villain is no slander nor actionable x 2. E. 4. 5. nor to publish one to be a bastard who is in deed a bastard if the defendant doe make title to the bastardes lande and did therefore tearme him bastard that the matter might bee produced into question and triall y 25. Eliz. Baâ—isters case Nomomath Enough of this wee will passe now to other matters The third Dialogue Of Dettes NOmomath I pray you let me know 1 Diuision Codicgnostes all the waies meanes wherby one man may become indebted to another so that remedie may be had by processe of law for the debt Codign A dette may grow by writing or especialtie 1 Dette may grow by writing or especialtie as when the dettor confesseth himselfe to bee obliged and bound to his creditor and such bond or obligation may be by deede indented sub eadem forma verborum by mutuall deliuerie it becommeth the deed of them both a l. seruuÌ„ filij § eum qui chirographum ff de leg 1. Such a kind of writing wee call instrumentum 2 An obligation may be by deed indented at the ciuill law priuatum because it is done in the name and by the hand of a priuate man not in the name of any king or prince and this kind of instrument ought to haue the subscription of three witnesses b C. de proba l. but there is a priuate instrument of more solemnity which is called of 3 What instrumentum garraÌ„tigiae is at the ciuill law vs instrumentum garrantigiae an instrument of warrantie vpon which a man shall haue present execution as if it do specifie that one man is indebted to another this being presently exhibited in place of iudgement the iudge ought presently to awarde execution c ff de re iudi and such writings obligatorie if they haue any razure in them in any materiall place are of no credit in law d c. ex liter in glo 2. de fid instrument and there bee in our law three sorts of bonds Naturalis Ciuilis Praetoria Naturalis 4 Three sortes of bonds by the ciuill law is when as by mutuall contract one of the parties becommeth mutually bounde to the other Ciuilis is that which is made in forme of law whereof we haue aboue spoken wherein one of the parties confesseth and acknowledgeth himselfe to bee indebted to the other in a certaine summe of money and bindeth himselfe for the payment of the saide summe Praetoria which is deuised and conceiued of the Pretor and Iudge in precise termes specifijng the debt e Insti de obli in prin Likewise debt may accrue 5 Dette may grow by way of contract vnto one by way of contract which is nothing els but the coÌ„sent of 2. persons for a thing to be done or giuen by the one to the other and it is on both sides obligatorious f de pac l. 1. §. 1. for if two doe consent in this true proposition Titius est homo or in this false assertion Titius est Asinus yet this is no contract because non vtrobique obligat f Gazalup verb. pactum for if the wordes or acte be obligatorie then the contract is obligatorie as contrariwise if the words or acte tend to acquittance then the contract is nothing els but an acquittall as if the creditor doe redeliuer the writing obligatorie vnto his dettor this is an acquittance in lawe for otherwise the redeliuerie should worke nothing g ff de pac l. labeo but if the creditor should redeliuer a pledge vnto the dettor this will not amount to any acquitall or release of the dette because the redeliuerie in that case may haue an other effect namely the vse of the pledge for a certaine time h l. sequent ff eo ti And if the instrument or especialtie of the dette be come to the hands of the dettor the law will intend prima facie that it was redeliuered by the cteditor in lieu of an acquittance i l. si chirograph ff de pig but this must be limited with this restreint if the dettor be a meere stranger in facto vnto the creditor but if he be his seruant or one of his familie conuersing in house with him then the intendment will bee otherwise for then the law will presume that he might easily come by the bond without the priuitie of the creditor k l. vnica §. ille C. de lati li. tol Canonol I haue not at any time obserued any thing in our lawe which maketh head against 6 The canon law agreeth with the ciuill in matters of bonds or dettes these determinations of lawe by you mentioned Anglonomoph Our law with some of these assertions fully agreeth and from some flatly disagreeth as I meane to manifest by examining 7 Dette may grow by contract by the common law in order the particulars of Codicgnostes his speech Dettes with vs may grow many waies and euerie way an action of dette will lye for it may grow by contract as Codicgnost hath auowched For if the husband sell trees growing vpon the land of his wife and the wife dieth before they be cut downe yet the husband may maintaine an action of dette so it is of a vendition by the tenant in taile so where a man hath a horse by wrong and selleth him to another for a certaine summe of money and before the deliuerie of the horse he dyeth or the owner taketh him away yet an action of dette lyeth vpon the vendition l 18. E. 4. 6. So if a man sell ten acres of land to another for ten pound and after he will make no assurance of the land yet he may maintain an action of dette for the money and the other is put to his action vpon the case but if it bee agreed that the assurance shall be made before a certaine day and the ten pound to be payed vpon the perfecting of the assurance then the lawe is otherwise For if hee make not the assurance before the day but after hee shall not haue an action of dette for the ten pound m 22. H. 6. 50. ê‘ Newt But if a tailor doe make a garment for mee if we bee
vpon the will and designement of the Testator For if a man make three his executors and all refuse the administration but one yet the others shall be executors by vertue of the will and may administer when they please and an action ought to be brought in all their names otherwise the writ shall abate And if a man haue goodes in diuerse Prouinces he may make his executors of his goodes in one of the prouinces and die intestate as to the other goodes And if the Ordinarie doe commit the administration of the goodes which are in the other prouince vnto him now is he both executor and administrator e 35. H. 6. 36. And 4. H. 6. in an action of Dette brought by the Executors vpon an Obligation the defendant demaunded oier of the Testament and he had it and the plaintife shewed forth a Testament nuncupatiue being thus in effect Memorandum quòd A. constituit B. et C. executores suos and this was vnder the seale of the Ordinarie and the opinion of the Court was that this was sufficient matter to maintaine the action f 4. H. 6. 1 and if there be not speciall caution to the contrarie By our Law likewise the executor doth vniuersally succeede in the right of the goodes of the dead and he may enter into the landes of the testator to take the goodes g P. 9. H. 6. Stath tit Execut ou Entr. But if a man deuise goodes to one and die the deuisee cannot take the goodes without the deliuerie of the executor h 37. H. 6. 30. 11. H. 4. Execut 58. per Thirn And the executors do so fullie and viuelie represent the person of their Testator that if an action of Dette be brought against two executors and the one of them pleadeth misnosmer and the other pleadeth that he is administrator and not executor the opinion of the Court was that they should not haue both pleas because they did represent their testator who could haue but one onely plea i 37. H. 6. 30. 7. H. 4. 13. But it seemeth by the booke of 8. Ed. 4. that they shall haue seuerall pleas and the most peremptorie shall be tried k 8. E. 4. 24. Execut. 31. And an executor or administrator may haue a writ of Error vpon a iudgement giuen against their Testator concerning dette or dammages l Fitzh Nat. bre 21. M. And that a testament and a deuise 5. According to the cōmon Law a Deuise is of no force vntil the death of the deuisor are of no force till the death of the deuisor may appeare by diuers good authorities in our Law m Littlet lib. 2. c. 10 sect 8. 27. Ass pla 60. And whereas Codicgn hath said that by their Law there must be an insinuation of the will to the Bishops Officiall 6. The common Law agreeth with the Ciuill in the insinuation of willes doubtles it is so in our Law for there must be such an insinuation and probate of the will before the executors may bring anie action of Dette n 7. H. 4. 18. 10. Eliz. Com. Brets c. et en Greyst case And the Ordinarie may sequester the goodes of the dead vntill the executors haue prooued the Testament And the Metropolitane may do the same if the goodes be in diuerse dioceses o 9. E. 4. 33. But our Law differeth from the Ciuill Law in this that the administration of the goodes of him that dieth intestate is not committed by the Praetor but by the Ordinarie For if a man be indebted and die intestate or if the Executors of one that hath made a Will refuse to be executors whereby the goodes do come to the handes of the Ordinarie the creditors may haue a writ of Dette against the Ordinarie by the statute of Westminster 2. cap. 19 p Fitzh Nat. bre 120. D. and in this case he must be sued by the name of Ordinarie q 9. E. 4. 34. But after administration committed the Ordinarie shall not be sued r 8. Elizab. 247. Dy. And if Sede vacante the Deane and Chapiter be gardian of the spiritualties if a man doe then die intestate and the Deane onelie administreth the goodes it is sufficient for the Creditors to vse an action against the Deane onely Otherwise it is if the Deane and Chapiter as Ordinarie should vse an action ſ 17. E. 2. Br̄e 822. And so if the Ordinarie make his executors and 7. That an action of Dette will lie against the Ordinarie die the Creditors may haue an action of Dette against the executors of the ordinary t Fitzh N. B. 120. D. Vieux Nat. br 61. though 11. E. 3. in the title of Executors be directly to the contrarie u 11. E. 3. Executors 77 But a man shall not haue an action of Dette to charge the Ordinarie as Ordinarie vnlesse he doe administer in his owne dioces uu 12. R. 2. Administr̄ 21. But the Ordinarie can not haue an action of Dette against such which were indebted to the partie intestate because that action is giuen to the Administratour and the Ordinarie may commit the administration of the goodes when it pleaseth him But before the statute of king Edw. the 3. ann 31. ca. 11. the administrators could not haue an action of Dette therefore it seemeth before that time the Ordinarie might haue vsed an action of dette otherwise remedie should haue failed a Fitzh N. B. ibid. but the Ordinarie may might at all times haue had an action of trespasse for the goods of the dead taken out of his owne possession b 18. H. 6. 23. 7. H. 4. 18. 11. H. 7. 12. but not for goods taken out of the possession of the partie intestate c 17. E. 2. Briefe 822. But if the Ordinarie without formall letters of administration granted do giue one licence and authoritie to sell the goods of the partie deceased intestate quae peritura essent and he doeth it accordingly he which doth so administer shal be punished as an executor of his owne wrong d 9. Elizab. 256. Dy. neyther can hee commit administration by word of mouth otherwise it is if it bee entred into his register though letters of administration bee not formally drawne e 21. H. 6. 23. And it may come in issue whether he that granteth administration were Ordinarie in the place where the administration was committed as if the village doe extende into two dioceses f 35. H. 6. 46. And it may come in issue whether administration were committed by the Ordinarie And whereas Codicgnost hath also affirmed that if the executor or administrator doe make an Inuentorie 8 The Canon law agreeth with the ciuill in administring the goods cōprised in the Inuentorie according to the testament and dispose the goods comprised in the same according to the testament of the partie and appointment of lawe they shall not bee further charged our lawe
time and of late time in the ciuill Law is rather plain theÌ„ ponderous Vetus accipietur quod non est nouum r In l. 11. de triui leg And therefore the law of the twelue Tables they call their auncient Law and that which followeth it the new Law Å¿ l. 1. l. 3. D. de pet haered But in this sense the Law of Nations should be the auncient Law and all other humane Lawes new Lawes but auncient by the interpretation of a good Ciuilian is that cuius initij memoria non extat t l. 2. in prin de ag plu ar c. §. idem lab aut si in agr and he expoundeth this to be if there be none aliue which knoweth when it had his beginning Neither hath any heard of the beginning of the thing of those which did know it u Idem Lab. aut cum quaeritur eo A certaine time is that which hath a certaine beginning and ending An vncertaine time is directly contrary Certaine times are the yeare the day the moneth c. An vncertaine time is signifyed by these wordes before after in times past some time about such a time c. But there be diuers sortes of vncertaine times First either that which is altogether vncertaine as when such a ship shall come out of Asia for we know not whether it shall at any time come from thence or when it shall come Secondly that is said to be vncertain which though it be vncertaine whether it shall be or no yet if it be admitted to be it is certaine when it shall be as if I graunt vnto one the Corne that shall grow in such a ground for I know not whether it shall grow or no Or if I promise to be a godfather to that child which shall be borne of Martha within three daies after it be borne for I know not whether any shall be borne Or if I promise to pay such a summe of money when Titius shall be of full age here it is well knowne when Titius shall be of full age but it is vncertaine whether he shall liue till he come to full age 3. that is vncertaine which though it be certaine that it shall be yet it is vncertaine when it shall be as the howre of death The present time is so small and vnsensible that it is almost of no continuance and it is but the conioyning of that time which is past to that which is to come Time past is that which wanteth his beginning And time future is that which neuer had ending A conuenient time is after diuers sorts First either it is conuenient for some and not for all as when some causes are to be heard and not other some Secondly or profitable for all but not alwaies as the Termes whilest there are no dayes of vacation dies non iuridici Thirdly or it is profitable for all and alwaies as the Assises The second Chapter That by the Law of Nations Emperors Kinges and absolute Monarches haue full power and aucthoritie to seise the Landes and Goods of their subiects condemned for heinous offences IF any man be so straitly minded that he thinketh this prerogatiue to be too large and ample for an absolute Monarche let him think there withall that himselfe is so base minded that he cannot sufficiently iudge of the great worth and demerit of so high an estate for the name of a king importeth so great paines and charge that a kingdome seemeth not to be a sufficient or counteruailable recompence For Themistocles his choise must either be verie reasonable or exceeding desperate when he accompted it better to sinke into his graue then to ascende to a throan Wherfore not doubting of the great charge of it let vs examin the continuall custome of Nations in the executing of this power S. Lewis the French king famous in that nation for integritie iustice doubted not by publike iudgement to prescribe the farmes lordships and landes of Peter the Earle of Dreux And so were the goods and possessions of Charles Duke of Burbon seised and forfeited c Bodi lib. 5. de repub c. 3. And they haue a Law in Scotland that the goodes of persons condemned shall go wholie to the Eschequer without any deduction or reprisall to wife creditor or children The Romanes did allot their fines penalties and forfaitures to the sacrifice and seruice of their Goddes and therefore they were called Sacramenta d Festus in verb. sacrament But the Athenians did giue onely the tenth part of the goodes that were forfeited to religious vses as may appeare by the record of the condemnation of Archiptolemus and Antiphon which runneth in these tearmes Archiptolemus Antiphon vndecim-uiris capitalibus ad extremum supplicium traditi bona eorum publicata decima Mineruae data domus eorum solo aequatae And although Iustinian the Emperour did vpon some scrupulous conceit abrogate the Law of giuing the goods of condemned persons to the publike treasury and did therefore establish a Law that they should remaine to their children f Authent bona damnato de bonis dâ—mnator C. Yet diuers held this Law to be new different from the course of auncient Law-makers for euen in the most auncient times in case of high Treason in all common weales of the world such forfeitures haue been admitted for it was thought that the goodes of such persons condemned were either by fraude violence or other corrupt courses wrested from the common weale and therefore were to be restored to it againe or els because such persons hauing offended against the common weale should satisfy it that way therfore were such goodes conueyed away by Law from wife and children because for the most part they were vniustly heaped together for the aduancement of wife and children But such prerogatiues haue been in auncient time so firmely annexed to the Septer and estate roiall that by the ciuill Law such things which are properly called iura maiestatis by the common Law iura regalia cannot be seuered from the regall dignity therfore Baldus calleth them g sacra sacrorum and Cynus indiuidua h the inseparable incidents of a kingdom And by the ciuil Law such things can not be seuered from the princely Diadem neither can any man prescribe in them i Bald. con 174. lib. 3. et con 193. eo And so it is said in our Law that where the King hath any commoditie in the right of his Crowne as if he haue a Mine conteining in it gold or siluer by the graunt of the land in which it is conteined the Mine doth not passe because he hath that by his prerogatiue royall and they be two seuerall thinges and of diuers degrees k 10. Elizab. Com. Informacion pur Mines 310. per Wray And whereas the Priorie of Wenlocke was one of the auncient Priories which were of the foundation of the Crowne and the King graunted the said Priorie in ample words yet
them as in Guzula a region of Affrike and in the borders of the kingdome of Fez They that dwell neare the mountaine of Maguano if they perceiue any straunger passing by who excelleth in wisedome they doe entreat him or enforce him if entreatie will not serue to deuise Lawes for them o Leo Afer in lib. de reb Affric The Romanes in all their daungerous accidents did acknowledge the gouernement of one to be the best and therefore chose a Dictator whose gouernement Appian pretilie calleth regnum negatiuum either because it denied a regall power onely in shew or because he had authoritie to denie that which the rest had affirmed Trepidi patres saith Liuie ad summum auxilium decurrunt dictatorem dici placuit p Liui. lib. 6. And againe he saith that when Hanniball did molest Italy ad dictatorem dicendum remedium iamdiu desideratum ciuitas confugit q Liui. lib. 22. and such was the reuerence of the Dictator that as the same Liuy saith Dictatoris edictum pro numine semper obseruatum r Liui. lib. 6. And Appius being Consull giueth aduise to create a Dictator for the brideling of the rage of the people affirming minas esse consulum non imperium vbi ad eos qui vnà peccauerunt prouocare liceat agedum Dictatorem à quo prouocatio non est creemus ſ Liui. lib. 2. But Monarchie hath been imbraced by the people of all Nations Democracie reiected as namely by the Medes Persians Aegyptians Parthians Macedonians Arabians Indians Aethiopians Scythians Tartarians Turkes Danes French Mosconites Polonians Britanes Affricanes and Perusians The name of a king saith Salust is primum in terris By scripture it appeareth that kings were ordeined of God for it is said in Deuteronomie Thou shalt make him king ouer thee whom the Lord thy God shall chuse one from among thy brethren shalt thou make King ouer thee and thou maiest not set a straunger ouer thee which is not of thy brethren t Deuteron 17. vers 15. And it is said of Moses He was in Israel as King when the heades of the people and tribes of Israel were gathered together u Deuteronom 33. ver 5. And aftere the returne of the Hebrewes from Babylon where they were captiues to their auncient countrie of Palestine they did obey the kinges of Persia Syria or Aegypt till Iudas Machabeus an Asmonite did recoyle from Antiochus the great king of Syria and transferred the high-pristhood and kingdome into his owne familie And as all Nations haue imbraced Monarchie so the wisest men in all nations haue approoued it As Homer a Homer lib. Iliad 1. Herodotus b Herodot lib. 5. Plato c Plat. in politic Aristotle d Lib. vlt. Metaphisic Xenophon e Xenoph. in cyrop Plutarch Philo f Plut. in lib. de creati Regis Apollonius Thyanaeus g Philostratus S. Ierom S. Cyprian Maximus Tyrius h Maxim Tyri in orat and Bartolus the deepe Ciuilian i Bartol in tractat de Regim ciuit nu 10. Lucan k Luca. lib. 1. et 2. Aquinas l Aquinas in lib. de princip Erasmus m Erasm in lib. de instit princip Tacitus S. Augustin n D. Augustin lib. 5. de ciuit dei c. 1. and S. Ambrose whose particular and plenarie assertions I omit because I hasten now to an other matter which hath not been so much discoursed of as this The seuenth Chapter Of the Law and Iustice of Armes of Leagues of Embassages and denouncing of Warre of Truce of Safeconduct Captiues Hostages Stratagems and Conquestes according to the Law of Nations IN purposing to speake at large of the Law of Armes and the members and parcels thereof I doe respect the good of the Ciuilian who in these matters is verie often employed And of the professors of common Law who shall not doe amisse in considering of these thinges that shall be deliuered for the more full opening and explaning of the Statute of 13. Rich. 2. cap. 2. which is thus To the Constable and Marshall it belongeth to haue conusans and knowledge of contractes touching feates of Armes and of warre out of the Realme and also of such thinges as touch Armes or Warre within the Realme which can not be determined nor discussed by the Common Law c. For the better entring into this discourse I thinke it best to begin with the definition of Warre which may be thus Warre is a iust contention of men armed for a publike cause for though manie thinges be done in warre without weapons yet there is no warre without the furniture of weapons and there is nothing in warre which doth not lie hidden as it were vnder the safegard of Armes and which may not be referred to the same And it must be a publike contention because warre is not the quarrelling fight and enmitie of priuate men for warre is therefore called Duellum because it is the contention of two equall persons a Varr. lib. 6. de lingu lati And therefore the Syrians as I am infourmed doe thus translate the wordes of our Sauiour What king goeth to warre against an other king b Luc. 14. in this forme What king goeth to warre against his fellow king that is an other king equall vnto him Therefore Lipsius his definition is to bee disliked in that he defineth Warre to bee force and armes against a straunge Prince or people c Lipsi in polit for by that hee maketh the outrage and violence of priuate men and pyrates to bee warre for warre is a iust contention and by this woord iust excursions and depraedations are excluded Wherefore Scipio did accompt them robbers and ringleaders to theefes which did deale by such kind of spoyle and pillage d Liui. lib. 28. 40. 41. Flor. 2. And Liuie censureth the Ligurians rather to be robbers then iust enemies because beeing poore at home they did inuade the dominions of others and were more easilie ouercome then founde out Neither did they obserue the Law of Armes because they did slaie captiues and cruellie dismember them And Iouius speaking of the truce betwixt the Turkes and Hungarians saith that by an auncient custome they did make small skirmishes and extraordinarie incursions vpon the borders if they were not resisted by the preparation of Ordinance planted against their walles e Ioui lib. 36. Warre was first brought in by necessiitie for in that decisions of Courtes of Law and the determining of controuersies by their rules could not be betwixt two straunge Princes of aequall power vnlesse they should willinglie agree to such an order because they haue no superior nor ordinarie Iudge but are supreme and publike persons therefore the iudgement of armes is necessarie because such warre saith Demosthenes is against them which can not bee brideled by Law f Demosth de Cherson But processe of suit is onelie for them which are subiect For as
vtterlie fall to the ground But in other respectes he did wholie fauour such as vertue had ennobled For Aemilius Scaurus though he were a poore man pouertie is no dishonestie yet he was noble l Valer. Max. lib. 2. for sometime nobilitie is seuered from riches Therefore Tacitus saith of Cassius and Syllanus Alter opibus vetustis alter generis claritudine excellebat yet a man may be noble and verie rich as Tullie saith of Roscius That he was nobilitate et pecunia municipij facile primus But it is good to be knowen whether base artificers are to be enseated and bestowed in places of worth and credite Xenophon reporteth that amongest the Aegyptians Scythians Persians Lacedaemonians Corinthians they which did vse base and mechanicall trades were excluded from places of accompt and were accompted ignoble m Xenoph. in oecumen Aristotle likewise writeth that amongest the Thebanes it was a Law that no man could be admitted to place of honor vnlesse he had left off merchandize by the space of tenne yeares before n Aristo in polit And the Romanes followed them in this for as Liuie saith Quaestus omnis indecorus patribus visus est And Hippolytus a collibus writeth that it hath been generallie receiued that whosoeuer is a gentleman or possessed of an honorable estate beginneth presentlie to be ignoble by vsing merchandize vnlesse it be otherwise prouided by the Statutes of some particular Prouinces or Cities as by the Statutes of Venice of Florence of Genoa of Luca and of London where manie of their Senators magnificoes clarissimoes illustrissimoes are Merchants o Hippolyt a collib in lib. de princip And it is the rule of a diuine morall and politike writer that husbandmen carpenters potters caruers either in wood or stone and the like workmen are wholie to be debarred from honorable or iudiciall places p Ecclesi c. 38. And by the imperiall Lawes Merchants may not be aduaunced to anie honorable estate p L. ne quis de dignit C. L. si cohortat de cohort L. humil de incest C. neither might they haue anie regiment of souldiers q L. 1. negotiator ne milit C. And Plato r In lib. de legi Aristotle ſ Lib. 7. polit c. 9. and Apollonius t Philostrat doe hold merchandizing to be an enemie to vertue Neither will Ciceroes distinction be of anie force against them where hee saith Mercatura si tenuis est sordida putanda est si magna et copiosa multa vndique apportans multisque sine vanitate impartiens non est admodum vituperanda u Cicer. lib. 1. offic For though his commendation of merchandizing bee not verie great yet his opinion in this is not greatlie good for Maius et minus non variant speciem And the ironicall saying of the pyrate to Alexander was a confutation of this distinction a Cicer. 3. de repub who tolde him in plaine tearmes That because he did robbe on the Sea with one small pinnasse he was accompted a pyrate but because Alexander did the same with manie great Gallies therefore he was tearmed the gouernour of a fleete For as Lucan saith well Facinus quos inquinat aequat And the same Lucan calleth Alexander b Luca. lib. 10 Foelicem predonem a fortunate Robber And this aunsweare of the pyrate to Alexander is liked of Ciceto himselfe c Cicer. 3. de rep of S. Augustine d D. August lib. 4. de ciuitat dei and Alciat e Alci 1. consi 1. Likewise it hath been a question sometime sifted whether he that vseth husbandrie may properlie and in strict reason bee accompted a Gentleman In the common Law wee haue this rule that where a Gentleman is sued by the name of Husbandman he maie saie that he is a gentleman and demaunde iudgement of the writte without saying that he is no husbandman for though a gentleman may be an husbandman by the said Law yet he ought to be sued by his more worthie addition f 14. H. 6. 15. 1. E. 4. 2. 21. H. 6. 55. 12. H. 6. 8. Neither doth our Law in this dissent from the practize of other Nations For Cyrus did verie often boast of his labour and industrie in matters of husbandrie g Cicer. lib. de senect And these noble Romanes Serranus Curius Cincinnatus Torquatus and Cato are commended of Historians and others for this that they did establish the safetie of the common weale by their handes which were worne and growne rough by the plough and labour of husbandrie h Valer. Max. Varro Cicer. Liui. Florus In Iewrie and Aegypt how much it hath been esteemed may appeare by this that neither could Phara◠pleasure Iacob more to his contentment Neither could Ioseph procure a greater pleasure vnto him then the meadow ground and pasturage of Gozan in which hee inioyed the comfort of his age In Scythia Arabia Parthia Arcadia and other places as India Thracia Mesopotamia Sicilia c. Husbandrie hath been greatly practized and in other Nations not so much addicted to husbandry exceedingly praised Diuines haue in all ages countries possessed the reputation either of gentlemen or of reuerend right reuerend worshipfull and right worshipfull men and that vpon good reason which by and by God giuing leaue I will demonstrate Whether Phisitians may beare anie of these aforesaid titles or no it hath been in all ages questioned in some debated in this decided Though amongest the auncient Romanes phisicke was accompted base and sordid by the space of sixe hundred yeares i L. Thais § Lucius de fidei commiss yet about the imperiall time it was receiued into the citie k L. quidem C. de decuri and highlie esteemed But the Hebrewes and Graecians did alwaies make great accompt of the professors of that science and so did other nations also when the Arabians first of all had seuered Surgeans Emperickes and ignorant Apothecaries from Phisitions But let their accompt be great in a citie or common weale yet they must giue place to the profession of the Law as being a princelie discipline the center of common weales and the science of gouernment as I haue at large shewed in the first Chapter of my direction to the studie of the Law And this euen Philosophers haue adiudged l Plat. in Gorg. Aristo lib. 1. polit c. vlt. But now whether meere Grammarians and Rhetoricians I meane sole single professors of these Artes may challēge to themselues the title of gentrie and worship it hath verie much been doubted Cicero saith of Rhetoritians Rhetores M. Crasso et Domitio Censoribus claudere ludum impudentiae iussi m Cicer. lib. 3. de orat But after his time it was receiued into the citie and obteined manie great immunities yea euen these which taught boyes their Alphabet or first letters were so rewarded n l. 6. de exe tut l. vlt. in fi de mu.