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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
B13659	The second part of the Parallele, or conference of the ciuill law, the canon law, and the common law of this realme of England Wherein the agreement and disagreement of these three lawes touching diuers matters not before conferred, is at large debated and discussed. Whereunto is annexed a table ... Handled in seauen dialogues, by William Fulbecke.; Parallele or conference of the civill law, the canon law, and the common law of this realme of England. Part 2	Fulbeck, William, 1560-1603?	1602 (1602)	STC 11415a; ESTC S102691	206,828	373

by number he could not e D. Augusti lib. 3. de ciuit dei c. 19. And in the holie Scripture it is reported of king Salomon That the weight of gold which was brought vnto him from foreine countries yearely did amount to the value of sixe hundred sixtie and sixe talents of gold beside that which his collectors leuied vpon his subiectes and tributaries and the custome which he had of merchants together with the tribute of the Kinges of Arabia and the Lieutenants and Gouernours of nations any waie subiect or subordinate vnto him f 2. Chronic. cap. 3. 3. Reg. cap. 10. Custome likewise is a prerogatiue and benefit to which Kinges and Princes are by the Law of nations entitled It was of the auncient Italians called Portorium because it was to be taken of thinges that were to be caried out and to be brought in g Cicer. in oration pro leg Manil. The Turkish Emperour taketh the tenth part of the value of the thinges that are to be caried out of straungers and the twentieth part of his subiectes h Bodin lib. 6. de rep c. 2. And the king of Spaine taketh in India the tenth part promiscuè as well of straungers as his subiectes i The booke entituled The present state of Spaine And by the Law of England Merchants strangers being made denizens shall paie custome as straungers that be not denizens k 11. H. 7. ca. 14. It is good for euerie Prince to haue speciall care and regarde of mainteining merchandize because by that meane not onelie thinges profitable are brought into a kingdome but manie thinges are caried out to be sold and exchanged for publike good and manie sodain chaunces do arise wherein no small daungers are put aside by their meanes Plutarch reporteth that in Solons time merchandizing was held in great price and he giueth this reason for it because by that meane diuers foreine commodities were brought in friendship was procured with straunge kinges experience in manie thinges was attained l Plut. in Solon And the vse of merchandizing beeing once taken awaie in the kingdome of Naples was the cause that all the prouinciall people was presentlie brought to pouertie m Pont. c. 45. de liberalit And for the alluring of straunge Merchants into a Realme their priuiledges must be inuiolablie obserued especiallie at the times when they hold their martes or fayres that they may safelie goe returne tarie and staie with their wares which diuers of our Statutes of England haue prouided for Magna Chart. cap. 28. 9. E. 3. cap. 1. et 2. 14. E. 3. cap. 1. 25. E. 3. cap. 4. 27. E. 3. cap. 2. Of this matter Kings and Princes should haue good regarde for Platoes admonition is to be followed when hee saith Peregrinorum commercia respub ne auersetur n Plat. lib. 12. de legib And Amásis the Aegyptian king was so glad of straungers resort and their commerce that he graunted to the Graecian merchantes meere straungers the vse and exercise of their rites and religion in their owne language and for their more expedite negotiation in that Realme there was a certaine place appointed namelie Naucrate for the receit of foreine wares o Herodot lib. 2. And Aristotle is of opinion that a principall citie must be erected in some conuenient place wherto thinges which be necessarie to this life may be abundantly conueyed and this he would haue situate neere to the sea p Arist 5. polit c. 7. et 6. politic c. 7. And the people of Megara did iustlie complaine against the Athenians who had vtterlie secluded them from their Hauens and from marting with them q Plut. in Pericl This therefore must needes be a good meane to encrease the riches of a kingdome But it is the Princes prerogatiue to permit and to forbid merchant straungers at their pleasure and discretion and therfore the Statute of Magna charta hath in it a good clause for this purpose Omnes Mercatores nisi ante prohibiti fuerint habeant saluum conductum exire venire in Angliam c r Magn. char cap. 28. otherwise some Merchants may sowe bad seede euen the seede of seducement of the Princes lieges shrowding themselues vnder the curtaine of exposing wares to sale But these which are honest Merchants and of iust meaning are not to be forbidden Other benefites and prerogatiues there be which the Law of Nations doth allow to Princes in regarde of their exceeding costes and charge that they are at in the defending and gouerning their Realmes For though I haue shewed before that a masse of wealth almost infinite was brought into the Romane treasurie yet he that considereth their great expence and exceeding charge will I am sure confesse that this great wealth had neede to haue been verie well husbanded for the mannaging of their ordinarie affaires otherwise it would neuer haue stretched to the defrayment of their charges Their forces did consist of two hundred thousand foote-men of fortie thousand horse-men three thousand warlike chariots two thousand shippes a thousand fiue hundreth pinnasses fourescoore gallies double furniture of armourie and three hundred Elephants and in their shippes were a hundred thousand souldiers and marriners rr Lipsi de magistr Rom. lib. 1. c. 4. 5. So that Cicero saith plainlie that the Romanes notwithstanding all their great reuenue and treasure were scarse able to mainteine their armie ſ Cicer. parad 6. In consideration of which great and extreame charges the subiects of all Nations haue giuen and yeelded to their princes diuers princelie and roiall benefites and prerogatiues for the magnifying of their estate As first the vse and benefit of salt Mines for as the Italian prouerbe is Vino oleo è sale suono mercantia reale Wine oile and salt are the merchandize roiall And the Veientines in auncient time being ouercome of Romulus were straitlie forbidden to absteine from the salt Mines which were about the mouth of the riuer t Dionys Halycar lib. 2. And these salt Mines were brought into better forme and were made more commodious for the common weale vnder the reigne of Ancus u Liui. lib. 1. And Aurelius victor doth note that at the self same time an impost was made and ordeined for the same uu Victo lib. de vir illustr And an other impost was made when Liuie was Censor who of this word Salt had the name of Salinator giuen him a Liui. lib. 29. And Paulus Aemilius hauing subdued the Macedonians did reserue the prerogatiue of salt vnto the Romanes and did forbid the Macedonians to vse any salt that perhaps they might finde out without the permission of the Senate Yet the commerce of Salt he did afford to the Dardanians or Troians the auncient progenitors of the Romanes b Liui. lib. 45. And the Publicanes had Salt in farme as may appeare by Ciceroes report and other authorities c Cicer. pro le Ma. l. sed

time and of late time in the ciuill Law is rather plain thē 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 ſ 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 d●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

part of the father that the land shall discend to the next heire of the parte of the mother that is to the race of the heyre of the males of whence the mother is discended rather then to others and in this case of Clere because the bloud which was betwixt the vncle of the part of the mother of the heire and the heire himselfe came immediatly by the womā but the bloud which was betwixt the cosin germane of the fathers side him though it came originally from the woman namely the grandmother yet it is deriued to the heire by the males so that the dignitie of the bloud doth surprise and excell the proximitie of the degree therefore it was adiudged that the cosin should haue the land i 15. Eliz. comm cleres case 442. The fourth Chapter That in making title by prescription and continuance of time immemoriall all nations haue consented OF all worldly thinges time is most puissant for it endeth some things quickly some things once and at last some things it preserueth some things it continueth vnto the end of the world and the force of time is pretily described in these poems Res omnes aeurum chalibem deglutio ferrum stagna lacus fontes ebibo tum fluuios Tabida consumit lignum lapidesque vetustas nullaquè res maius tempore robur habet If by the course of nature time be such an incroacher vpon other things then surely arte law doth imitate nature which giue vnto it such power and authoritie as to chaunge to raise to alter to defeat to strengthen and to establish titles neither doth the law of nations attend the strict circumstances of the ciuil or common law in which these two lawes doe square for by the ciuill lawe there is required iust title which the common law requireth not and bona fides a Gl. si c. illud de prescrip which the common law requireth not and continuall possession which the common lawe onely requireth Prescription was first brought in that there might be a certainty of titles and peaceable possession without contradiction for a long time might turne to a right wherefore it is well obserued in the ciuill lawe bono publico intraducta est vsucapio praescriptio vt sit aliquis litium finis b b. lib. 1. de vsucap whereupon that speech of the Lacedemonians in Isocrates is grounded Wee holde this lande giuen vnto vs by the posteritie of Hercules confirmed by the Delphicke Oracle and the inhabitantes of it being ouercome of vs heere note a triple title in showe and yet all these in effect but a prescription yee knowe well that all possessions eyther priuate or publike to bee confirmed by prescription of long time we haue held Messana more then foure hundred yeares c Isocra in Arch. And so Iepthe did pleade prescription against the Ammonites d Iudic. c. 11. This land said he haue wee possest three hundred yeares The French maintaine their title of Fraunce onely by prescription as Bodinus confesseth dd Bodin lib. de repub for conquered it was by king Edward the third that happie triumphant Monarch assured to King Henry the fifth and his heires e Graft in H. 5 not to Queene Katherine and her heyres f Pet. Mar. comm in lib. iud And some Diuines holde for others doe oppose themselues against this lawe of prescription g Aug. de te ser 105. Epiphan and obserue that the Iewes neuer made question of the title of their Semi because the Cananites did defend themselues by the prescription of 500. yeares wherefore Artabanus the Parthian king did as Tacitus sayeth Per vaniloquentiam vainely demaund of Tiberius the territories possessions of the Macedonians hauing bin h Tacit ann li. 6 a long time possest of Cyrus and Alexander And Soliman more soundly did demaunde the rightes of Constantine the Emperour after a thousande yeares i Ioui 30. 34. But most vnaduisedly of all did the king of Persia demaund all these thinges which did belong to the Persian Empire from the first foundation of their Monarchie vnto the conquest of Alexander Magnus of Constantine and his sonne and of Alexander Seuerus k Herodia li. 6. zon Ammi lib. 17. as if the auncient inhabitants of Pannonia should now claime Hungarie which the Hunnes did conquer name and to this day keepe and vaine was the quarrell which Masinissa made to the Carthaginians lande l Liui. lib. 34. alleadging that they ought to haue no more then Dido the Tyrian Queene enioyed which was no more then coulde bee compassed by the hyde of an Oxe being curt into thonges for they had possest these landes almost seauen hundred yeares likewise weake was the title which Antiochus the great pretended against the Aetolians and the Ionians because these people were once subiect vnto his auncestors hee is well confuted of the Romanes by the lawe of prescription that though his great grandfather did atchiue these cities by warre yet his grandfather and father neuer enioyed them but the cities enioyed their libertie There be some interpreters of the lawe which thinke the king of Fraunce by prescription to be exempted from the Emperours subiection m Fulg. Sacc lib. 1. C. tit 1. against whom rather adulatoriously then aptly Alciat replyeth that no prescription of time wil hold place against the Empire n Alciat lib. 5. de iust for that is not true in a prescription of time which is immemoriall that is when no man as it may be commonly beleeued hath eyther seene or heard the contrary and this by the ciuill law is the space of one hundred yeares o Alexan. 5. Cons 16. Alciat 3. cons 24. But here before I wil grant that such prescription will hold against a king or an Emperor this is onely in such case where neyther possession hath beene had nor clayme made against the said king or Emperor for if claime only haue beene made as the kings and Queenes of England haue done in entitling themselues kings and Queenes of Fraunce and beare in their scutchions the ensignes and armes of that kingdome and so keep the ciuil possession of that kingdome though they haue lost the corporall possession in such case I do not thinke that the prescription of a thousand yeares ought to preuaile but in a case of a common person prescription will hardly run against the prince Therefore it hath beene held in our bookes that if the kinges tenant in Capite bee seised of an aduowson and the church happeneth voide and hee dyeth and the sixe monethes doe passe nay suppose sixe score yeares doe passe p 14. H. 7. fol. 22. then an office is found the king shal haue the presentment notwithstanding the laps before the office But if the question be asked whether the ordinary may present by laps against the king and if he may not how the cure shall bee serued in the meane time

vaine sophistrie in steade of true religion and such societies and such families whether of loue or of lust I can not well define which delight in latebris are worthy to be sent ad carceres that they may there liue in tenebris for it is fit to send corrupt humors which ouerloden and pester the bodie in latrinam For surely such Fanatickes may doe as great hurt in a common weale as the Pythagoreans did in Greece and Italie who pretending themselues to bee professors of wisedome did bring a great number to the admiration and imitation of them and finding such strength in the weakenesse of the multitude they beganne to plant their ramme and sette their force against kingdomes common weales and had thought vtterly to haue subuerted them but their companies were quickly dispersed and the greatest parte of these companions was destroyed by fire and sword a Polyb. li. 3. Now to speake somewhat of the liberties of a citie S. Paul when he was by the commandemēt of the magistrates apprehended being accused that he troubled the publike tranquilitie by seditious assemblies professing himselfe to bee a citizen of Rome hee appealed to Caesar b Act. 25. v. 11 though hee were by nation a Cilician by bloud an Israelite by tribe a Beniaminite yet because his father c Acto 22. v. 28. had beene a citizen of Rome the liberties were affoarded vnto him he likewise when he was commanded to be scourged pleaded for himselfe that he was a Romane d ibid. v. 25. But because the abundance of liberties of all the cities of Asia Africke and Europa are sufficiently knowne I will not stay any longer vpon this point but wil passe to matters of greater importance and more difficultie The ninth Chapter That the distinguishing of demesnes the difference of the degrees callings of men is according to the law of nations COnfusion breedeth alwaies contention partition peace according to the old prouerb Diuide et impera for which cause our ancestors did thinke it best to distinguish their dominions and inheritances by lottes and boundaries as Abraham Lot in Palestine Masinissa and the Carthaginians in Numidia and Mauritania the Romanes and Nolanes in Italie the Romanes and Carthaginians in Spayne and Sicilie the Emperour Valens and the Gothes in Missia and the regions on this side Danubius through the whole tracte of the Romane Empire was a partition made by Theodosius betwixt his sonne Archadius whom he prefected ouer Bizance and all the orientall partes and his other sonne Honorius to whom he allotted Roome and all the occidentall countries and so Darius would haue made a partition with Alexander of the whole world that the one of them shold haue all on the one side of Euphrates the other all on the other side yet in the first age and infancie of the world this kind of partitioin was vnused and vnknowne as may appeare by these authorities first of Virgill who saith Ne signare quidem aut partiri limite campum Fas erat a Virgi Georg. 1. And of Tibullus non fixus in agris Qui regeret certis finibus arua lapis b Tibul. 1. Elegi 3. And that of Seneca Nullus in campo sacer Diuisit agros arbiter populis lapis c Senec. in Hippoli act 2. yet the case was altered when Ouid writ thus Gentibus est alijs tellus data limite certo Romanae spatium est vrbis orbis idem d Ouid. 2. Fasto And vpon good reason was it altered for as Boetius saith well Dimensiones terrarum terminis positis vag antibus ac discordantibus populis pacis vtilia praestiterunt e Boeti in geomet And the great vse of limits and boundaries Plutarch sheweth when he condemneth the vnsatiable couetousnes and illimited encroachment or inuasion of Romulus verie wittily Noluit Romulus mensurâ proprij agri prodere mensuram alieni siquidem virium compedes terminos esse nouit seruarentur iniuriae iudicium si non seruarentur f Plut. in Num. pr. R. 15. And this was the cause that Numa Pompilius the king of the Romanes did cause as well a publik perambulation to be made throughout his whole kingdome as priuate limitations bounds betwixt partie partie and for the more solemne and effectuall confirmation and establishing of this course he did dedicate a chappell vpō the top of the Tarpeian hill vnto Terminus and this idoll was made of stone g Plut. in Num. He was set in a chappell as not fit to be remoued hee was made of stone as hard to be remoued he was placed vpon a high rocke as not possible to bee remoued and to this idoll nothing was sacrificed but cakes pulse and the first fruites of the field the meaning doubtles of Numa was good if it had not beene signified set forth by an euill meane For to make him immoueable was to good purpose and agreeable to the truth of diuine iustice Wherefore Salamon saith that which also is commaunded in Deuteronomie Thou shalt not remoue the auncient boundes which thy fathers haue made h Deut. 27. 17 Prou. 22. v 28. 23. v. 10. but the manner of diuiding lands dominions according to the custome of nations is fully set downe by M. Littleton though applyed to another purpose it is fiue-fold 1. By setting out an equal rate of the lands to be diuided 2. By the agreement of frends or intermediation of others 3. By casting lots 4. By writ de partitione facienda at the commō law the action de herciscunda familia at the ciuill law 5. By making an vnequall partition equall by a forrein reseruation i Littlet lib. 3. c. 1. Distinctions likewise of the degrees of men hath beene in all nations in all ages established obserued and vsed For the aduancing of noble men aboue them of lesse note and the preferring of the gentleman before the yeoman and peasant is very ancient and hath beene vniformely reteigned neither is it to bee maruelled at for nature her selfe hath tought the nations her schollers this lesson Trauaile through all her kingdome that is through the whole world you shall find this difference in force and of great validitie Consider the scituation of the celestiall orbes and ye shall note that the fierie heauen is placed aboue the chrystaline as more worthie both these aboue the firmament the firmament aboue the other Spheares as surpassing them Marke the birdes of the ayre ye shall perceyue that the Eagle the Phaenix and the Parott holde preheminence aboue the rest Looke vpon the riuers ye shall obserue Euphrates in his forme and compasse of his streame to be more excellent then Ganges Ganges better then Danubius Danubius better then Tagus Tagus then Padus Padus then Tempse Tempse then Seuerne Note the fishes of the sea yea shall find these to haue place aboue the rest the Whale the Dolphin the Sturgeon