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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A01292	A parallele or conference of the ciuill law, the canon law, and the common law of this realme of England VVherein the agreement and disagreement of these three lawes, and the causes and reasons of the said agreement and disagreement, are opened and discussed. Digested in sundry dialogues by William Fulbecke. At the end of these dialogues is annexed a table of the sections ...; Parallele or conference of the civill law, the canon law, and the common law of this realme of England. Part 1	Fulbeck, William, 1560-1603?	1601 (1601)	STC 11415; ESTC S102689	180,892	262

betwixt cleane and vncleane and they shall iudge my lawes and my precepts i Ezech. c. 44 And in another place Aaron and the priestes shall iudge betwixt leprosie and leprosie k Leuit. 13 Iosaphat the King of Iuda when he did appoint Iudges in all the Cities of Iuda he did appoint also in Ierusalem Leuites and Priests that they might adiudge iustice and the cause of the Lord vnto the inhabitantes and he appointed them to iudge of euery cause of their brethren which was betwixt kinred kinred whensoeuer question should be of lawe of commaundement of ceremonies of iustifications and he appointed Amasias the high Priest in these things which belong to God l Paralipom 2. c. 19. afterward the high Priest Iesus Christ did giue diuine laws rules vnto his people m Epistol ad Hebr. c. 3. 4. 5. 8. 9. after him his Apostels n Actor 15. 2 ad Theslalo 2. then Bishops and Prelates in their dioses o De potest summ pontif in Canon cuncta per mundum 9. quaesti 3. their power their Cannons their lawes were approued by diuerse Emperours and Kings Philip Valentinian Marcus Iustinian Constantine the great Honorius and Theodosius p L. cum l. 4. de sacros eccles lib. 1. C. tit 5. priuileg quae general l. 12. eod tit §. 1. in ecclesiast tit in authent collat 9. tit 6. Rusin lib. 10. hist eccles c. 1. and many others And by King Henry the eight of famous memory late King of England in his Parliament helde the 25. yeere of his most prosperous raigne and reuiued in the first yeere of our renowmed Queene and Soueraigne Lady Elizabeth q 25. H. 8. c. 19. 1. Elizab. c. 1. As to the originall of the Ciuill law I doe not thinke that that which may properly be called Ciuill lawe and was so called at the first is any other then ius Romanum or ius antiquum Romanorum or that which hath beene commented thereupon or added thereunto It is manifest that Romulus did establish lawes r Dionys Halicarn li. 3. and so did the other kings that followed him and that the law was brought into a conueniēt forme in these times it is very apparāt by this that M. Tullius being one of the dunmuirs was thrust into a sacke and by Tarquin his cōmandement was cast into the sea because corrupted by lucre and rewarde he did suffer the booke contayning the secrets of the sacred lawes of their Citie to be copied and written out by Petronius a Sabine ſ Valer. Maxim lib. 1. c. 1. and P. Papyrius is said to haue brought al the regal laws into one volume t Valer. Maxim lib. 2. in princip E● §. iur ciuil de ●eter iur enudeat and for the perfitting of the other lawes the lawes of the 12. tables were giuen forth by the decem-uiri u L. 1. § exactis de origin iur Diodor. Sicul 12. Dio●s Halicarnas lib. 2. 10. which excellent lawes if they were well and at large explained would giue such light intelligence to the makers of lawes that nothing in my simple coniecture more cōmodious could euer happē to any cōmon-weale these together with other constitutions made vpō principal occasion were obserued retained as the leuil of the Romane gouernmēt whereas in the times of ciuil dissention they were repealed or discontinued Augustus Caesar that admirable and worthy Emperour did reuiue the good laws reformed the badde by the perfection of that Common-weale brought about by him the cicle of the whole world as resting vpon that center became presently and vniuersally peaceable quiet a Veller Pater c. lib. 2 histor but the Emperours succeeding him hauing more care to be great then to be good made smal reckoning of these laws but by volūtary conceit cōmanding forbidding they rather raged thē raigned the decrees of some of thē namely Tiberius Caligula Cōmodus are wittily tearmed of the lerned ciuiliā furores nō iudicia b Alber. Gentil lib. lecti Et Epi. 3. c. 18. but these laws in the times of Archadius Theodosius Iustiniā recouered their strēgth shining to al the Cōmon weals of Europe as the Sun to al the climats of the earth haue for their worthines necessary vse emploimēt receiued intertainmēt countenāce great reward of Emperors Kings and Princes The law of this Realme hath as the Realme it selfe suffered chaunge by conquest yet as farre as I can perceiue by record of auncient times rather reason then soueraignety and consent rather then commaund was the principall agent in the alteration our greatest lawmakers in former times were Ina Alured Guthran Edwarde Ethelstane Edmund Edgar Ethelred Canutus after their Raignes ended and their lawes established K. Edward the Confessor after his inauguration in the throne of England finding in the garden of the Common-weale some lawes like to weeds others like to flowers as a diligent bee he extracted a good iuice out of the better laws and the worser by him neglected by disusing withered King William the Conqueror hauing wholly subdued this Realme perceiuing that his subiects did with great applause sauor the lawes of King Edward yer seeing in them somewhat which himselfe and others in politike consideration disliked imitating the frugall huswife who knoweth that the best hony cannot be good vntill it be clarified and refined singled out twelue persons out of euery shire imitating perhaps the Romanes who appointed decemuirs for the making of their lawes Men of approued skil and fidelity who might by exploratiō seuer the drosse from the the gold and the erronious lawes from the conuenient and commodious c Lambard lib. archaeon adding therunto some customes of Normandie d Lib. des customes de Norman whereof many for the resonablenes of them haue to this day continued This lawe hath had daily increase many of the olde lawes standing vnaltered some of them by reason of some sinister effect or sequele happening by them iustly chaunged and others by reason of newe accidents adioyned vnto them It hath florished long in this good estate and of the continuance and prosperitie of it three reasons in my shallow conceit may be rendred First because it so agreeth with the law religion and discipline of the holy Catholike and true Church of Christ that there is nothing in it which to the lawe of God is crosse or opposite Secondly because other nations with whom we haue commerce entercourse doe not find their commodities or liberties to be impeached by this lawe Thirdly because they are rather popular then peremptorie rather accepted then exacted and rather embraced then perswaded And with this I conclude leauing these lawes to your further and more considerate commendation Thine in all duetifull respect William Fulbecke The Table of the seuerall Titles of the fifteene Dialogues ensuing 1 Of Contractes Fol. 1. a. 2 Of Gifts and Graunts 7. b. 3

and sale as if a man bargaine and sell a mannor with the aduowson in fee habendum to the vse of the bargainee and his heires in such māner as in the Indenture of couenants is agreed and he couenanteth to suffer a recouery to the vse expressed in the Indenture rēdring a rent to the bargainor and his heires with a distresse for the same and a nomine paenae further pro vlteriore securitate it is concluded that the bargainor should leuie a fine to the bargainee with a rendring of the rent to the bargainor prouiso that the bargainee shal regraunt the aduowson for life to the bargainor and if it be couenaunted farther that all estates afterward to bee made shall bee to the said vses now if a recouerie be suffered and a fine leuied but varying from the Indenture of couenants the bargainee dieth before the regraunt of the aduowson the prouiso in this case is a conditiō and for the breach of the cōdition the bargainor may enter t 14. Eliz. 311. Dyer and as to that which you haue said 4. That where a bargaine sale is perfite but defeasible vpō conditiō the vēdee shal take the profits till the cōdition be performed that where the sale is perfite but defeasible vpon cōdition the vendee shal take the profites till the cōdition be performed it agreeth to a case in our law where a feofmēt is made to a feme couert of certain land the husbād after disagreeth to the feofmēt yet the mesne profits which were takē betwixt the time of the liuery and the disagreement shall not be restored to the feoffor For if a Praecipe quodreddat had bene brought against the husband and the wife after liuerie and the husbande had disagreed pending the writte the writte shall abate yet the taking of the profites is iustifiable for the feofment made to the woman is good till the husband disagree u Per Br. Feofm de terres 36. contra opinion Brian 1. H. 7. 16. Nomom Suppose that no day be limited whē 3. Diuision 1. When no day is limited for the payment of a summe what time the Law will require the vendee is to pay the residue of the money or a stranger is to offer more money as in your cases put before Codign shall the defeasance be void or what time will the Law require for the payment of the money 2. In such case the party charged with the payment shall by the Ciuill lawe haue lx daies Codicgn In such cases the Lawe doth limit a time and doth assigne to the party charged with the paiment the space of lx daies a Gl. mag in c. Illo vos de pignori facit optime l. quod si nolit §. qui mancipiū ff de Aedil edict Anglono In our law we haue a rule that whē 3. That by the Common law when no day is limited the monie is presently due yet in some case by some authority the discretion of the Iudge is to limit a time a mā is boūd in xx li. to pay x. li. no day of paymēt is limited the lesser sūme is a duty presently ought presently to be tendered b 20. E. 4. 8. 21. E. 4. 38. le case del maior de Exetor per touts les Sergeants ascuns des Iustices howbeit in such cases by the opiniō of Starkey c Ibid. per Stark the discretiō of the Iustices shall limit a time hauing regard to the distance of the place and to the space of time wherein such a thing may be performed for the obligor is not cōpelable to pay the mony within one houre neither may he differ the paimēt the space of 7. yeeres but the time must be adiudged by law so if I prescribe to haue cōmō because of vicinage in such a village namely euery yere after the corne be seuered caried away to put in my beasts into the field al the terre tenants of the village haue caried away their corne and hay except one man onely now the Law shall adiudge whether he had sufficient time to carie away his corne hay when his neighbors did carie it away d Ibi. p Stark ●airef so in the case before the discretiō of the Iustices ought to measure the time surely his opinion seemeth reasonable vnto mee though I dare not affirme it to be Law For euery mans busines ought to be rated by a conuenient time and therefore the learned Philosopher hath well 4. The definition of time according to the opinion of Aristotle defined time in this sort Tempus est mensura motus secundum prius posterius and as the motion doth measure the place so doth time measure motion for a daies iourney is measured of a day an howres of an howre e Arist physicor 4. c. 11. 12. lib. 1. de anim c. 3. lib. de generat corrupt 2. c. 10 and if a man be bound to enfeoffe one and no certaine day is limited when the feofment shall be made that may be done and performed in a reasonable time f 14. E. 3. Dette 138. Nomom Are there no other things to defeat a 4. Diuision bargaine and sale but onely conditions 1. That a bargaine and sale may be auoyded thorough defect of some substantiall thing belonging to the acte Codicgn Yes for a bargaine and sale may be auoided for some defect of some substātial thing required to the perfection of the contract as where the thing that is sold is not markettable or the price is not certainly sette downe g §. pretium Iusti Eo C. Eo l. si or when lawfull consent is wanting as when a bargaine and sale is extorted or enforced thorough feare or threatning h Metus causa ff C. quod met causa l. si voluntate C. de rescin vend or when there is fraude and deceite in the contract i ff de dol l. eleganter l. si voluntate C. de rescin vēd as if the thing solde haue some inward fault As if a horse or some other 2. That fraude and deceite in the cōtract by the Ciuill law doth defeate the contract beast that is to be sold be troubled with some inward or secrete disease k C. de act empt l. emptor l. ex empto §. animalium quoque ff eod for buying and selling being a contract bonae fidei whatsoeuer thing is done in it vltra probatum vendendi modum is auoiable by law l d. l. 1. l. Ex empto §. redhibition ff de act emp. §. si quis virginem ibid. but the fault in such case which is 3. A differēce where the fault of the thing solde is Latens or Patens in the thing sold is either latens or patens if it be plaine and visible the bargainor is cleared from fault m §. nūc qualit

diuersified by the qualitie of the persons that commit it for otherwise bondmen otherwise they that are free are punished and if it be mixed with an other fault it was punished in a free man by ancient Lawes with perpetuall bannishment the confiscatiō of goods d L. 2. ff de publ iudic l. si quis ad se fundun C. eod §. item lex I●st eod but now it is punished with bannishment for a certaine time without confiscation of goods e §. relegati Instit quib mod ius patr● potest soluit but it is to be noted that the said punishment onely taketh place when force is actually done or cōmitted but if nothing bee done forcibly but certaine men hauing weapons are assembled in a great multitude together to committe force the punishment of that offence is arbitrarie and leste to the discretion of the Iudge but the Lawe setteth downe this mulcte in certaine that if he be a man of woorth hee shall paie to the common treasurie an hundred pounds in gold whosoeuer in such sort offendeth f L. si C. Ad L. Iul. de vi publ l. 1. 2. in prin ff eod Anglonomoph By our Lawe if a disseisin bee 5. That by the Common law the Counsaylors and committors of force are alike punished found to bee done by diuerse men and to bee done by force and one of them is found to bee but a coūsailor of the disseisin yet euery of them shall be awarded to prison g 17. Assis pl. 14. and if a man be attainted of Trespasse at the suite of the partie or of a disseisin with force wherefore hee is commaunded to prison if he be present or that hee shall be attached if he be absent whereupon hee is attached and put in prison at the Kinges suite vntill hee haue payed a fine to the King and after hee findeth pledges for his fine and prayeth that hee may be at large he shall not be permitted to goe at large vntill the Court be sufficiently enformed that hee hath agreed with the partie if the plaintife doe require before that his bodie may continue in prison vntill the defendant haue agreed with him h 22. Assis pl. 74. An vnlawfull assemblie is where aboue the number of two doe assemble to doe some vnlawfull 6. What an vnlawfull assembly is by the Common law 7. What a rout is acte and they doe it not in facte but after their saide assemblie they departe without doing more and a route is their tumultuous proceeding to performe the acte purposed but a 8. What ● ryot is riot is when more thē two do assemble together to the intent to do an vnlawfull act as to beate or to maime an other and they do this in fact but if diuerse assemble none know to what intēt this is not punishable till the intēt be knowne i Fitzh Iust de Peace 28. Mar● lect 8. Crompt Iust de peace 53. and when men are indited of riot they cōmonly pray to be admitted to their fine that by the paying of their fine they may escape imprisonment but de rig ore iuris they ought as well to be imprisoned as fined k Crompt Iustic de peace 53. b. Nomomath I would know of you Canonologus whether there be any penaltie in your Lawe prescribed for such offences Canonolog Yes there is a penaltie set downe 9. The punishment of the aforesaid offences by the Canon law for Clarkes such as haue takē holy orders for if they do commit publique force they are to be excōmunicated vntil they be reformed and they may be depriued for such publique offence l c●veritatis ext de dolo contum c. Inquisitionis c. qualiter quando extr de accusat c. licet Heli extr de simon c. Generali de elect lib. 6. Nonomath But what if the Magistrates in the 2. Diuision countrie be negligent and remisse in punishing such offences hath not your Lawe Codicgnostes prouided reformation for them Codicgn Yes if any Iudge will not do iustice 1. The punishment of the Iustice not punishing such offēces by the Ciuill law in the repressing and punishing of such offendors but shall either differre the punishment or neglect to giue sentēce or shal partially demeane himselfe in the smothering of that fault or shall not inflict the punishment due to such offences the said magistrate is by Lawe to bee made infamous to be depriued of his office to be made vncapable and vnable for any other office and further he is to be fined a C. li. in gold m L. fin C. ad leg Iul. de vi public vel priuat Anglonomoph Our Law is likewise seuere against 2. That the Iustices of Peace by the Common law are punished for remiss●nes of punishing others for the afore●aid faults such for if the Iustices of Peace sheriffe or vndersheriffe do record the force and do not commit the riotors to prison or if they commit them and do not record the force they shall pay euerie of them a C. li. for the statute is that they shall recorde and cōmit n 13. H. 4. c. 7. and if any riots routs or assemblies of people bee done against the Lawe two Iustices of Peace at the least with the Sheriffe or vndersheriffe must goe to the place where the riot c. is cōmitted they must take the offendors c. this is by the statute of 13. H. 4. c. 7. but notwithstanding this statute Fineux chiefe Iustice was of opinion 14. H. 7. that forsomuch as the statute is but merely in the affirmatiue that therefore one Iustice of Peace may goe take power with him and represse the riotors c. and he needeth not to stay for his cōpaniōs nor for the Sheriffe nor c. because the statute is a beneficiall Lawe made to auoid a mischiefe which might otherwise happen if one Iustice should stay for his companiōs o 14. H. 7. 10. ꝑ Fin. Fitzh Iust de P. 16 and the Sheriffe and Iustices of Peace may take with thē as many men in harnesse as are necessarie and gunnes c. and may kill the riotors if they wil not yeeld thēselfes and if the two Iustices which be nearest vnto the place where the riot is committed and the Sheriffe or vndersheriffe do not execute the saide Statute of 13. Henr. 4. they shall euery of them paie an hūdred poūd as before I haue said and the other Iustices of the same countie where the riot is committed shall bee fined for the not repressing of the riot if there bee any default in them p 23. Eliz. Crompt I. P. 54. but in such case it seemeth that the Iustices of the Peace should haue notice of the riot giuen vnto them or els that it should be so notorious that by common intent they may take notice of it q Crompt I. P. 54. b.