is called a courte Baron And to euery fayre market is incident a court that is called a court of Pypowdres And though in some statutes is made meÌ„cion somtyme of the sayd courtes / yet neuertheles of the fyrste Institucion of the sayd courtes and that suche courtes shulde be / there is no statute nor law writteÌ„ in the lawes of Englande And so all the grouÌ„de begynniÌ„g of the sayde courtes depeÌ„de vpoÌ„ the custome of the realme the whiche custome is of so hygh auctoritie that the sayde courtes ne theyr auctorities maye nat be altered / ne theyr names chaunged without Parlyament ⧠Also by the olde custome of the realme no maÌ„ shal be takeÌ„ iÌ„prysoned disseased nor otherwyse destroyed / but he be put to answere by the lawe of the lande this custome is coÌ„fermed by the statute of Magnacarta the .xxvi. chapitre ⧠Also by the olde custome of the realme all men great small shal do receyue Iustice in the kinges courtes / this custome is coÌ„fermed by the statute of Marl the .i. Chapitre ⧠Also by the olde custome of the realme the eldest sone is onely heyre to his auncestour / if there be no sones but doughters then all the doughters shal be heyre so it is of susters other kynneswomen And if there be nother sone / doughter / brother / nor suster / then shall the enheritaunce discende to the nexte kynnesman or kynneswoman of the hole blode to hym that had the enhitauÌ„ce of howe many degrees so euer they be from hym And if there be no heyre generall nor speciall / then the lande shall Eschete to the lorde of whome the lande is holden ⧠Also by the olde custome of the realme landes shall neuer ascende / nor disceÌ„de froÌ„ the sone to the father or mother / nor to any other auncestre in the right lyne / but it shall rather Eschete to the lorde of the fee. ⧠Also if any alyeÌ„ haue a sone that is an alyen after is made Denizyn / hath another sone / after purchaseth laÌ„des and dyed / the yoÌ„ger sone shall enherite as heyr nat the eldest ⧠Also if there be thre bretherne the mydlest brother purchase landes dyed without heyre of his body / the eldest brother shall inheryt as heyre to hym nat the yonger brother ⧠Also if lande in fee symple disceÌ„de to a man by the ê‘re of his father he dyed without heyre of his body / then that inheritaunce shall discende to the next heyre of the parte of his father And if there be no suche heyre of the parte of his father / then if the father purchased the laÌ„des it shal go to the next heyre of the fathers mother / nat to the next heyres of the sonesmother but it shall rather Eschete to the lorde of the fee but if a man purchase laÌ„des to him to his heyres dye without heyre of his body as is sayd before / theÌ„ that laÌ„de shall disceÌ„de to the next heyre of the parte of his father if there be any / if nat then to the next heyre of the parte of his mother ⧠Also if the sone purchaseth laÌ„des iÌ„ fee dye without heyre of his body / the lande shall discende to his vncle shall nat asceÌ„de to his father / but if the father haue a sone thoughe it be many yeres after the deth of the elder brother / yet that sone shal put out his vncle shall enioye the lande as heyre to his elder brother for euer ⧠Also by the custome of the realme the chylde that is borne before spouselles is bastarde shall nat inheryte ⧠Also the custome of the realme is that no maner of goodes nor catalles reall nor parsonell shall neuer go the the heyre / but to the executours / or to the ordinary or administratours ⧠Also the husbande shall haue all the Chatelles parsonelles that his wyfe had at the tyme of the spouselles or after and also Chatelles real if he ouer lyue hê wyfe but if he sell or gyue away the Chatelles realles dye by that sale or gyfte the enterest of the wyfe is determined / els they shall remayne to the wyfe if she ouer lyue her husbande ⧠Also the husbaÌ„de shall haue all the inheritauÌ„ce of his wyfe wherof he was seased in dede in the right of his wyfe during the spouselles in fee or in fee tayle general for terme of lyfe / if he haue any chylde by her to holde as tenaunt by the curtesye of EnglaÌ„de / the wyfe shall haue the thyrde parte of the inheritaunce of her husbande wherof he was seased in dede or in lawe after the spouselles c. but in that case the wyfe at the deth of her husbande muste be of the age of .ix. yere or aboute / or els she shall haue no dowrye ¶ Doctoure what if the husbande at his deth be within the age of .ix. yere ¶ Student I suppose she shall yet haue her dower ⧠Also the olde lawe custome of the realme is that after the deth of euery tenaÌ„te that holdeth his landes by knyghtes seruice the lord shall haue the warde mariage of the heyre tyll the heyre come to the age of .xxi. yere And if the heyre in that case be of full age at the deth of his auncestre / then he shall paye to his lorde his relyefe / whiche at the coÌ„mon lawe was nat certayne / but by the statute of Magna carta / it is put in certayne that is to saye for euery hole knyghtes fee to pay C. sÌ„ And for a hole baronye to pay a. C. marke for relyef And for a hole erledom to pay a. C. li. after the rate And if the heyre of such a tenauÌ„t be a womaÌ„ / she at the dethe of her auncestre be within the age of .xiiii. yeres / then by the coÌ„mon law she shuld haue ben inwarde onely tyll .xiiii. yere / but by the statute of WestmÌ„ the fyrste in suche case she shal be inwarde tyll .xvi. yere And if at the deth of the auncestre she be of the age of .xiiii. yere or aboue / she shal be out of warde / though the laÌ„des be holden of the kynge And theÌ„ she shall pay relyef as an heyre male shall ⧠Also of landes holden in socage if the auncestre dye / his heyre beynge withiÌ„ the age of .xiiii. yeres / the next freÌ„d of the heyt to whome the inheritauÌ„ce may nat discende shall haue the warde of his body landes tyll he shall come to the age of .xiiii. yere / theÌ„ he may entre And wheÌ„ the heyre coÌ„meth to the age of .xxi. yere / theÌ„ the gardeyn shall yelde hym accoÌ„pte for the ê“fettes therof by hym receyued ⧠Also suche an heyre in socage for his relyefe shall double his rent to the lorde the yere folowyng the deth of his auncestre / as if his auÌ„cestre
fourth lesson the thyrde corollarie sayth that god wyl that makers of lawes iuge only of outwarde thynges reserue secrete thinges to him And so it appereth that man maye nat iuge of the inward intent of the deed / but of suche thynges as be apparaūt / certayne it is that it is nat apparaunte that there was any suche corrupte entent in the makers of the sayd statute / howe may it therfore be sayd that that lawe is good or right wyse / that nat only suffereth suche thynges agaynst the statute / but also agaynst the commaundement of god ¶ Studēt To that some answere say that whan the lande is solde a recouery is had therupon in the kīges court of recorde that it sufficeth to barre the tayle in conscience / for they saye that as the tayle was fyrste ordayned by the lawe So they saye that by the lawe it is adnulled agayne ¶ Doctoure Be thou thy self iuge if in that case there be lyke auctorite in the makynge of the tayle as there is in the adnullynge therof / for it was ordayned by auctorite of parliament / the which is alway taken for the moste hyghe court in this realme byfore any other / and it is anulled by a false supposell for that that they that be named demaundaūtes shulde haue right to the lande where in trouthe they neuer had right therto whereupō foloweth a false supposell in the writte / a false supposell in the declaracion a voucher to warraūte by couyn of suche a person as hath nothynge to yelde in value thereupon by couyn collucion of the perties foloweth the default of the vouchee by the whiche default the iugement shall be gyuen And so al that iugemente is deriuyed grounded of the vntrue supposell ouyn of the parties / whereby the lawe of realme that hath ordayned suche a writte of entre to helpe them that haue righte to landes or tenementes is defrauded the courte is desceyued the heyre is disherited as it is to doubte the byer the seller theyr heyres assignes hauing knowlege of the tayle be bounde to restitucion / and verily I haue herde many tymes / that aft the lawe of the realme suche recoueries shulde be no barre to the heyre in the tayle if the lawe of the realme might be therein indifferently harde ¶ Studēt I can nat se but that after the lawe of the realme it is a barre of the tayle / for whan the tenāt in tayle hath vouched to warrauntie / and the vouchee hathe appered entred in to the warrauntye / after hath made defaut in despite of the court whereupō iugemēt is gyuen for the demaundaunt agaynste the tenaunt / for the tenaunt that he shal recouer in value agaynst the vouchee / the heyre in the tayle shulde after brynge his forme done and recouer the landes intayled / and after vouchee purchaseth landes / than shulde the heyre also haue execucion agaynst hym to the value of the landes entayled as heyre to his auncestre that was tenaunt in the fyrst accion and so he shulde haue his owne landes / and also the landes recouered in value and therefore bycause of that presumpcion that the vouchee maye purchase landes after the iugement / some be of opinion that it is in the lawe a good barre of the tayle ¶ Doctor. I suppose that in that case thou haste put that the vouche maye barre the heyre in tayle of his recouerie in value bycause he hath recouered the fyrste landes Neuerthelesse I wyll take a respite to be aduised of that recouerye in value And if thou can yet shewe me any other consideracion why the sayde recoueries shuld stāde with conscience / I praye the let me here thy cōceyte therein / for the multitude of the said recoueries is so great that it were greate pytye that all they shuld be bounde to restitucion that haue landes by suche recoueries syth there is none that as far as I can here disposeth them to restore ¶ Student Some men make an other reason to proue that the sayde recoueries shulde be sufficient by the lawe to a voyde the state of west than if they be sufficiēt therto / they be sufficient in conscience ¶ Doctour What is theyr reason therin ¶ Student In the .vii. yere of kynge Hēry the .viii. the .iiii. chapitre amonge other thynges it is enacted / that all recouers theyr heyres assignes may aduowe and iustifie for rentes seruice and customes by them recouered as they agaynste whome they recouered mighte haue done And than they saye that whā the parliamēt gaue to suche recouerers auctorite to aduowe iustifie for suche rētes customes seruices as they recouered / that the entēt of the parliament was that suche recouers shulde haue right to that for the whiche they shulde aduowe or iustifi for els they saye that it shuld be in vayne to gyue thē suche power / that the parliament shulde els be takē in maner as fortifiers of wrōg full rules so they say that suche recouerers by reason of the sayde statute haue right the law ¶ Doctour That statute as it semeth was made onely to gyue to the recouerers a forme to aduowe iustyfie / whiche they had nat byfore though they had recoueryd vpon a good tytle And the cause why they had no forme to aduowe or iustifie byfore the sayde statute was for as moche as the recouerers dyd nat by the pretence of theyr acciō afferme the possession of him or thē agaīst whome they recouered / nor claymed nat by them / but rather disafermed and distroyed theyr astate And therfore they cā nat alege any continaunce of theyr title by thē / as they may that haue rentes or seruices / or such other of the graunt of other by dede or by fyne And therfore as it semeth the moste principall intent of that statute was that suche recouerers shuld auowe iustify for rentes seruices customes as they shulde or might do that had them by fine or dede nat hauinge any respect as it semeth whether they recouered agaynst tenaūt in fee simple or in fee tayle / nor whether the recoueries were had vpon a rightfull title And therfore as me semeth the sayd estatute neyther affermeth nor disaffermeth the title of the recoueries wherby they do aduowe for if a man had right byfore the recouerye that right shulde remayne vnto hym natwithstandynge the sayd statute so me semeth that the title of them that haue the landes entayled by suche recoueries is nothynge fortyfyed nor affermyd by the said estatute but that they are ī the same case as they were byfore what thynkest thou therin ¶ Student / this mater is great / for as thou sayste there be so many that haue tayled landes by suche recoueries / that it were great pytie heuynes to condempne so many persones to iuge that they all were bounde to restitucion For I thynke there
/ yet I meruayle howe suche an vse may be reserued against a fyne that is one of the hyghest recordes that is in the law / and is taken in the lawe of so hyghe effecte that it shulde make an ende of all stryffes / or agaynst a recouere that is ordeyned in the lawe for them that be wronged to recouer theyr ryght by / and me thiÌ„keth that great encoÌ„uenience and hurte may folowe whan suche recordes may so lyghtly be auoyded by a secrete intente or vse of the ê‘ties and by a nude and bare auerment and mater in dede / and specially sythe suche a mater in dede maye be aleged that is nat true wherby may rise great strife bytwene the parties / and great coÌ„fusion and vncertaynte in the lawe / but neuertheles sythe our intente is nat at this tyme to treate of that mater I pray the touche shortly some of the causes why there hath ben so many persones put in estate of landes to the vse of other as there hathe ben / for as I here say / fewe men be sole seased of theyr owne landes ¶ Student There hath ben many causes therof / of the whiche some be put away by diuerse statutê / and some remayne yet / wherfore thou shalte vnderstande that some haue put theyr lande in feoffent secretely to the inteÌ„t that they that haue ryght to the lande shuld nat knowe agaynst whome to bryng theyr accion / that is moche what remedied by diuerse statutes that gyue accioÌ„s agaynst pernours and takers of the profites And somtyme suche feoffemeÌ„tes of trust haue ben made to haue mayntenaunce and berynge of theyr feoffes / whiche peraduenture were great lordes or rulers in the countreye / and therfore to put a way suche mayntenaunce treble damagê be gyuen by statute against theÌ„ that make suche feoffementes for mayntenauÌ„ce And soÌ„tyme they were made to the vse of mort mayne whiche myght than be made with out forfayture thoughe it were prohibite that the freeholde myght nat be gyuen in mortmayne But that is put away by the statute of Rycharde the seconde And somtyme they were made to defraude the lordes of wardê / relyefs / harryots / and of the landes of theyr vylleyns / but those poiÌ„tes be put away by diuerse statutes made iÌ„ the tyme of kynge Henry the .vii. Somtyme they were made to auoyde execucions vpon statutes Staple / Statute MarchauÌ„te / Recognisaunce / and remedy is prouided for that that a maÌ„ shall haue execucion of all suche landes as any persone is seased of to the vse of hym that is so bounde at the tyme of execucion sued iÌ„ the .xix. yere of H. the .vii. And yet remayne feoffementes / fynes / and recoueres in vse for many other causes / in maner as many as there dyd byfore the sayde estatutes And one cause is why they be yet thus vsed is to put away tenauncy by the curtesy and tytles of dower An other cause is for that landê in vse shall nat be put in execucion vpon a statute staple / statute marchaunt / nor recognisaunce / but suche as be in the handê of the recognisour tyme of the execucion sued And somtyme landê be put iÌ„ vse that they shulde nat be put in execucion vpon a wryt of Extendi facias ad valenciaÌ„ And somtyme suche vses be made that he to whose vse cÌ„ may declare his wyl theron / somtyme for surety of diuerse couenauntes in indentures / of mariage / other bargains / and these two last articles be the chyefe principal causes why so moche laÌ„de is put in vse Also landê in vse be no asses neyther in a Fourmedone nor in an accion of Det agaynste the heyre ne they shall nat be put in execucion by an Elegit sued vpon a recouere as some men say and these be the very chyefe causes as I nowe remeÌ„bre why so moche lande standeth iÌ„ vse as there doth / and all the sayd vses be reserued by the intente of the parties vnderstande or agreed bytwene them / and that many tymes dyrectely agaynst the wordes of feoffement / fyne / or recouere / and that is done by the lawe of reason as is aforesayd ¶ Doctour May nat an vse be assigned to a straunger as well as to be reserued to the feoffour if the feoffour so appoynted it vpon his feoffement ¶ Student yes as well / in lykewyse to the feoffe and that vpon a fre gyfte without any bargayne or recompence if the feoffour so wyl ¶ Doctour What if no feoffement be made but that a man grauÌ„t to his feoffe that fro thens forthe he shall stande seased to his owne vse / is nat the vse chaunged though there be no recompence ¶ Student I thynke yes for there was an vse in Esse byfore the gyfte whiche he may as lawfully gyue away as he myght the lande if he had it in possession ¶ Doc. And what if a man beynge seased of lande in fee graunte to a nother of his mere mocion without bargayne or recompeÌ„ce that he fro thens forthe shal be seased to the vse of the other / is nat that graunte good ¶ Student I suppose that it is nat good / for as I take the lawe a man can nat commence an vse but by lyuerey of seasoÌ„ or vpon a bargayne or some other recompence ¶ Doctoure I holde me contented with that thou haste sayd in this Chaphitre for this tyme and I pray the shewe me what diuersite thou putteste bytwene those two cases that thou hast byfore reherced in the xx Chapitre and in the .xxi. Chapitre of this present boke ¶ Student I wyl with good wyll ⧠The diuersite bytwene two cases here after folowynge / wherof one is put in the .xx. Chapitre and the other in the .xxi. Chapitre of this present boke The .xxiii. Chapitre ¶ STudent The fyrste case of the sayd two cases is this A man maketh a feoffement by dede indented vpon a condicion that the feoffe shall paye a certayne rente yerely to a straunger cÌ„ if he paye it nat that it shal be lawfull to the straunger to entre into the lande In this case I sayd byfore in the .xx. Chapitre that the strauÌ„ger myght nat entre bycause that he was nat pryuey vnto the condicion But I sayd that iÌ„ that case the feoffour myght lawfully reentre by the fyrste wordê of the indenture bycause they implye a condicioÌ„ in the lawe that the other wordes that is to saye that the straunger shulde entre be voyde in lawe and conscience And therfore I sayd ferther that whan the feoffour had reeÌ„tred that he was seased of the laÌ„de to his owne vse nat to the vse of the straÌ„ger / thoughe his entent at the makyng of the feoffement were that the straunger after his entre shuld haue had the laÌ„d to his owne vse if he myghte haue entred by the law And the cause why I thynke that the
/ but this must be alway excepte that if at the fyrste auoydaunce that shal be after the dethe of the comon auncestre the kynge haue the warde of the longest doughter / that thaÌ„ the kyng by his prerogatiue shall haue the presentement And at the nexte auoydauÌ„ce the eldest syster so by turne But it is to vnderstande that if after the dethe of the comon auÌ„cestre the churche voydeth the eldest syster presented togyder with another of the systers / the other systers euery one iÌ„ theyr owne name or togyder that in that case the ordinarie is nat bounden to receyue none of theyr clerkes but may suffre the churche to renne in to the lapas as it is sayd before for he shall nat be bounde to receyue the clerke of the eldest syster but where she presenteth in her owne name And in this case where the patrones varye in presentement the churche is nat properlye sayd letigiouse so that the ordinarie shuld be bouÌ„de at his perill to directe a writte to enquere de Iure patronatus for that writ lieth where two presente by seuerall titles / but these patroÌ„s present all in one title / therfore the ordinarie maye suffre it to passe if he wyll in to the laps / this maner of presentemeÌ„tes muste be obserued in this realme in lawe conscience ☞ Howe loÌ„ge tyme the patron shal haue to presente to a benefice The .xxxi. Chapitre DOctoure Thê questioÌ„ is asked iÌ„ SuÌ„ma aÌ„gelica iÌ„ the title Ius patronaâ—ê° the .xvi. article / there it is aÌ„swered that if the patron be a lay maÌ„ that he shall haue .iiii. monethes / if he be a clerke he shall haue .vi. monethes ¶ Student And by the comon lawe he shall haue .vi. monethes whether he be a lay man or a clerke / I se no reason why a clerke shulde haue more respite than a lay maÌ„ but rather the contrary ¶ Doctour Fro what tyme shal the .vi. monethes be accoÌ„pted ¶ StudeÌ„t That is in diuers maners after the maner of the voydance / for if the churche voyde by dethe / creacion / or cession the .vi. monethes shal be coÌ„pted fro the dethe of the encumbent / or fro the creacion / or cession / wherof the patron shal be coÌ„pelled to take notice at his peryll / if the voydance be by resignacion or depriuacion than the .vi. monethes shall begyn whan the patron hath knowlege gyuen hym by the bisshop of the resignacion or depriuacion ¶ Doctoure what if he haue knowlege of the resignacion or depriuacion nat by the bisshope but by some other / shall nat the syxe monethes begyn thaÌ„ fro the tyme of that knowlege ¶ Student I suppose that it shall nat begyn tyll he haue knowlege gyuen hym by the bisshope ¶ Doctoure An vnion is also a cause of voydaunce howe shall the .vi. monethes be rekened there ¶ StudeÌ„t There can no Vnion be made but the patrons muste haue knowlege / it muste be apoynted who shall present after that vnion / that is to saye / one of them or bothe / eyther ioiÌ„tly or by tunre one after another as the agrement is vpon the vnioÌ„ / sythe the patron is priuy to the auoidaÌ„ce is nat ignorante of it the .vi. monethes shal be accompted fro the agremente ¶ Doctour I se well by the reason that thou haste made in this chapitre that ignoraunce soÌ„tyme excuseth in the lawe of Englande / for in some of the sayde auoydaunces it shall excuse the patrones as it appereth by thy reasons aboue / in some it shal nat / wherefore I pray the shewe me somwhat where ignoraÌ„ce excuseth in the lawe of Englande where nat after thyne oppinion ¶ Student I wyll with good wil here after do as thou sayste if thou put me in remembrauÌ„ce thereof But I wolde yet moue the somwhat ferther in suche questions as I haue moued the before / concernyng the diuersities betwene the lawes of EnglaÌ„de other lawes / for there be many mo cases therof that as me semeth haue right greate nede for the good order of conscience of many persons to be reformed to be brought in to one oppinion bothe amonge spirituall teÌ„porall / as it is in the case where doctours holde opinion that the statutes of laymen that restrayne libertie to gyue landes to the churche shulde be voyde / they saye ferther that if it were prohibit by a statute that no gyfte shulde be made to foreyns / that yet a gifte made to the churche shulde be good / for they say that the inferiour may nat take away the aucthoritie of the superioure this sayeng is directly agaynst the statutes wherby it is prohibit that landes shulde nat be gyueÌ„ in to mortmayne / they say also that byquestes gyftes to the churche muste be determined after the lawe canon nat after the lawes statutes of lay meÌ„ / so they regarde moche to whome the gifte is made whether to the churche or to make causes / or to comoÌ„ persones / bere more fauoure in giftes to the churche than to other / the law of the realme beholdeth the thyng that is gyuen pretendeth that if the thynge that is gyuen be of landes or goodes that the determinacion therof of right beloÌ„geth in this realme to the kynges lawes whether it be to spirituall maÌ„ or teÌ„poral / to the churche or to other / so is greate diuisioÌ„ in thê behalfe whan one preferreth his opinioÌ„ another his / one this iurisdiccion / another that that as it is to fere more of singularitie thaÌ„ of charite wherfore it semeth that they that haue the greatest charge ouer the people / specially to the helthe of theyr soules / are moste bounde in conscience before other to loke to this matter to do that in them is in all charitie to haue it reformed / nat beholdynge the teÌ„porall iurisdiccion nor spirituall iurisdiccion but the comon welthe quietenes of the people / and that vndoutedly wolde shortlye folowe if this diuisioÌ„ were put away / whiche I suppose veryly wyll nat be but that all men within the realme bothe spirituall teÌ„porall be ordered ruled by one lawe as to teÌ„porall thynges nat wihstandynge for as moche as the purpose of this writtyng is nat to treate of this matter therfore I wil no ferther speke thereof at this tyme. ¶ Doctoure Than I praye the procede to another question as thou sayst thy mynde is to do ¶ Student I wyll with good wyll ☞ If a man be excoÌ„menged / whether he may in any case be assoyled without makynge satisfaccioÌ„ The .xxxii. Chapitre STudent In the summe called SuÌ„ma rosella in the title absolucio quarta the seconde article it is sayd that he that is excoÌ„municate for a wronge if he be able to make satisfaccion ought nat to be assoyled but he do satisfy / that they offende
might growe to the party if he shulde be put to answere to suche auermentes in the chauncerye as if he were put to answere to thē at the comō lawe therfore they thynke that no sub pena lyeth in the sayd cases ne in other lyke vnto them Neuertheles I do nat take it that theyr opynion is that he that boughte the lande in this case may with good conscience holde the lande bycause he shall nat be compelled by no lawe to restore it / but that he is in conscience by the law of reason bounde to restore it or otherwyse to recompence the partye so as he shal be contented I suppose veryly it is so if he wyll kepe his soule out of peryll daūger And after some men to these cases may be resēbled the case of a fine with none clayme that is remembre before in the .xiiii. chapitre of this boke / where a mā knowyng another to haue right to certayne lande causeth a fine to be leuied therof with proclamacion and the other suffereth fyue yeres to passe without clayme in that case he hath no remedye nether by comon law nor by sub pena / that yet he that leuyed the fine is bounde to restore the lande in consciēce And me thynketh I coulde right well agre that it shulde be so in this case / that specially / by cause the partye hym selfe knoweth perfitelye that the sayde colaterall warrantye was obteyned by couen and agaynst conscience ☞ The fourth question of the doctour is of wrecke of the see ⸫ The .li. Chapitre DOctour I pray the let me now here thy mynde howe the lawe of Englāde concernynge goodes that be wrecked vpon the see may stande with consciēce for I am in great doute of it ¶ Student I pray the let me fyrste here thyne opiniō what thou thynkest therein ¶ Doctoure The statute of Westmynstre the fyrst / that speketh of wrecke is / that if any mā dogge or catte come alyue to the lande out of the shyppe or barge / thatt it shall nat be iuged for wrecke so that if the partie to whome the goodes belonge come within a yere a day proue them to be his that he shall haue them or els that they shall remayne to the kynge And me thynketh that the sayd statute standeth nat with conscience / for there is no lawfull cause why the party ought to forfet his goodes ne that the kīg or lordes ought to haue them for there is no cause of forfeture in the partye but rather a cause of sorowe heuines And so that lawe semeth to adde sorowe vpon sorowe 〈◊〉 therfore doctours holde comonly that he that hath suche goodes is boūde to restitucion that no custome may helpe for they say it is agaynst the cōmaūdemēt of god Le .xix. Where it is cōmaūded that a man shall loue his neyghboure as hym selfe / that they say he dothe nat that taketh away his neyghbours goodes / but they agre that if any mā haue cost labour for the sauynge of suche goodes wrecked specially suche goodes as wolde perysshe if they laye styll in the water / as suger / paper / salte / mele / and suche other / that he ought to be alowed for his costes and labour but he must restore the goodes except he coulde nat saue them without puttinge his lyfe in ieoperdie for them / than if he put his lyfe in suche ieoperdie the owner by comon presumpcion had had no waye to haue saued them thā it is moste comōly holden that he may kepe the goodes in cōscience / but of other goodes that wolde nat so lightly perysshe / but that the owner might of comon presumpciō saue them hym selfe or that might be saued without any perill of lyfe / the takers of them be bounde to restitucion to the owner whether he come within the yere or after the yere And me thīket this case is somwhat lyke to a case that I shall put / if there were a lawe a custome in this realme or if it were ordeyned by statute that if any aliē came throughe the realme in pylgrimage dyed / that all his goodes shulde be forfet / that lawe shulde be agaynst consciēce for there is no cause reasonable why the sayde goodes shulde be forfet And no more me thynketh there is of wrecke ¶ Student There be diuers cases where a mā shall lese his goodes no defaute in hym / as where beastes straye awaye fro a man they be taken vp proclaymed the owner hath nat herde of them within the yere the day / though he made sufficient diligence to haue herde of them / yet the goodes be forfet no defaute in hym / so it is where a mā kylleth a nother with the sworde of I. at style the sworde shal be forfet as a deodāde yet no defaute is in the owner / so me thynketh it may be in this case / that sith the comō lawe before the sayd statute was that the goodes wrecked vpon the see shal be forfet to the kyng that they be also forfet nowe after the statute excepte they be saued by folowynge the statute / for the lawe muste nedes reduce the propertye of all goodes to some man whan the goodes be wrecked it semeth the property is in no mā but admitte that the property remayne still in the owner thā if the owner percase wolde neuer clayme than it shulde nat be knowē who ought to taken thē so mighte they be distroyed no profite come of them / wherefore me thynketh it reasonable that the lawe shall appoynt who ought to haue thē / that hath the lawe appoynted to the kyng as souerayn hed ouer the people ¶ Doctoure In the cases that thou haste put before of the stray deodand there be consideracions why they be forfet / but it is nat so here / me thynketh that in this case it were nat vnresonable that the law shulde suffre any man that wolde take thē to take kepe them to the vse of the owner / sauinge his reasonable expēces / this me thynketh were more reasonable law than to pull the property out of the owner with oute cause But if a man in the see cast his goodes out of the shyp as forsaken there doctours holde that euery man may take them lawfully that wyll / but otherwyse it is as they say if he throw them out for fere that they shulde ouercharge the shyppe ¶ Studēt There is no suche law in this realme of goodes forsaken / for thoughe a man weyue the possession of his goodes sayth he forsaketh than / yet by the lawe of the realme the property remayneth still in hym / he may sease them after whā he wyll / if any man in the meane tyme put the goodes in saufegarde so the vse of the owner I thynke he dothe lawfully that he
man shuld holde satisfi competently to the churche / to the whiche they be bounde to gyue it of right / no expences by the gyuinge of the sayd tythes deducte or withholden / but onely for the payment of tythes of craftes of byenge sellinge / vy reason of the sayde constitucions prouincials somtyme sutes be taken in the spirituall court for personall tythes / therof many men do meruayle / bycause the deduccions many tymes must be referred to the conscience of the parties And they meruayl also why a law shuld be made in this realme for paīge of personall tythes more than there is in other contreys And here I wolde moue the ferther in one thyng cōcernyng suche personall tythes to knowe thy mynde therin / that is / if a man gyue to another an horse / he selleth that horse for a certayne summe / shall he paye any tythe of that summe ¶ Doctoure what thīkest thou therin ¶ Student I thīke that he shall pay no tythe / for there as I take it the profite cometh nat to hī by his owne industri but by the gyfte of an other / as I take it personall tythes be nat payd for euery profite or aduauntage that cometh newly to a man except it come by his own industri or labour so it dothe nat here And also if he shulde paye tythe of that he solde the horse for he shuld pay tithe for the very hole value of the thinge And as I take it the personall tythes for byenge sellinge shall neuer be payde for the value of the thynge / but for the clere geynes of the thynge / and therfore I take the cases before rehersed where a man selleth his lande or pulleth downe a house and selleth the stuffe / that he shulde there paye no tythe / that it is there to be vnderstande that he hath the lande or howse by gyfte or by discent / for if a man bye lande / or bye the tymber stuffe of a howse and sell it for agayn I suppose that he shulde paye a personall tythe for that gayne / and this case is nat lyke to a fee or annuite graunted for counsayle where the hole fee shal be tythed / for the charges deducte or some certayn some for it by agrement / for there the hole fee cometh for his counsayle whiche is by his owne industrie But in the other case it is nat so / and the same reason as for the person all tythe might be made of trees whan they descende or be gyuen to any man and he selleth them to a nother that he shall paye no personall tythe ¶ Doctoure Me thynketh that if the horse amende in his kepynge than he sell the horse / that than the tythe shal be payd of that that the horse hath encreased in value after the gyft so it may be of trees that he shall pay tythe of that that the trees be amended after the gyft or discent ¶ Student Than the tythe muste be the .x. parte of the encrease the expences deducte / and than of trees the charges muste also be deducte / for it is than a personal tythe / and there is no tree that is so moche worthe as it hath hurte the grounde by the growynge / therfore there can no personal tythe be payd by the owner of the grounde whan he selleth thē though they haue increased in this tyme. Neuertheles I will speke no ferther of that matter at this tyme / but wyll shewe the that if tyme / lede / cole / or trees be solde that a myxte tythe can nat growe therby / for a myxt tythe is properly of calues / lābes / pygges / suche other that come part of the groūd that they be fedde of / part of the kepyng industri ouersight of the owners as it is sayd before / but tynne / lede / cole are parte of the groūde of the freholde / trees growe of thē selfe / be also annexed to the freholde will growe of themselfe / also the mixte tythe muste be payde yerely at certayne tymes appoīted by the law or by custome of the cōtrey / but it may happē that tīne / lede / cole / trees shall nat be felled nor taken in many yeres / so it semeth it can nat be any mixt tythe / these be some of the reasons whiche they that wolde mayntayne that statute prescripcion to be good make to proue theyr intēt as they thynke ¶ Doctour What thynke they if a man sell the loppes of his woode whether any tythe ought there to be payd ¶ Student They thynke all one lawe of the trees of the loppes ¶ Doctour And if he vse to fell the loppes ones in .xii. or .xvi. yere / what holde they thā ¶ Studēt That all his one ¶ Doctoure And what is theyr reason why tythe ought nat to be payde there as well as for woode vnder .xx. yere ¶ Student For they say that the loppes are to be taken of the same condiciō as the trees be what time so euer they be felled / and that no custome will serue in that case agaynst the statute / no more thā it shuld do of great trees ¶ Doctour And what holde they of the barke of the trees ¶ Studēt Therin I haue nat herde theyr opinions / but it semeth to be one law with the loppes ¶ Doctour I perceyue wel by that thou hast sayd before that thy mynde is that if a hole contrey prescribe to be quite of tithes of trees / corne / gres / or of any other tythes that that p̄scripcion is good so that the spirituall ministers haue sufficient beside to liue vpō / dost thou nat mene so ¶ Student yes verely ¶ Doctor. And than I wolde know thy mynde if any mā contrary to that prescripcion were sued in the spirituall court for corne gres or any other rythes whether a prohibicion shulde lye in that case as it dyd after thy mynde before the sayd statute where a man was sued in the spirituall court for tythe wood ¶ Student I thynke nay ¶ Doctoure And why nat there as well as is dyd where a man was sued for the tithe woode ¶ Studēt For as I take it there is great diuersiti bytwene the cases that for this cause / there is a maxime ī the law of Englande that if any sute be taken in the spirituall court wherby any goodes or landes might be recouered / whiche after the groūdes of the lawe of the realme ought nat to be sued there though percase the kynges court shall holde no plee therof that yet a prohibicion shuld lye / after whan it had continued longe that no tythes were payd of wood bycause of the sayd prohibicion that after by processe of time some curates began to aske tithes of wood contrary to the law cōtrary to the sayd prescripcion so that variaūce begā
lysteth may so accompte them / or if he wyll he may take theÌ„ for one grounde after his pleasure / of which maximes I shal hereafter shewe the parte ⧠Fyrst there is a maxime that escuage vncertayne maketh knyghtes seruice ⧠Also there is another maxime that escuage certayne maketh socage ⧠Also that he that holdeth by castelgarde / holdeth by knyghtes seruice / but he holdeth nat by escuage And that he that holdeth by .xx. s. to the garde of a castell holdeth by socage ⧠Also there is a maxime that a disceÌ„t taketh awaye an entre ⧠Also that no prescripcion in laÌ„des maketh a ryght ⧠Also that a prescripcion of rente of profites aprendre out of lande maketh a ryghte ⧠Also that the limitacioÌ„ of a ê‘scripcioÌ„ generally takeÌ„ is froÌ„ the tyme that no maÌ„nes mynde renuyth to the contrarie ⧠Also that assignes may be made vpoÌ„ laÌ„des gyueÌ„ in fee for terme of lyfe / or for tme of yeres though no meÌ„cioÌ„ be made of assignes / the same lawe is of a rent that is grauÌ„ted / but otherwyse it is of a waraÌ„tie of a couenaunte ⧠Also that a condicion to auoyde a freholde can nat be pleaded without dede / but to auoyde a gyft of a chatel it may be pleaded without dede ⧠Also that a release or a confirmacion made by hym that at the tyme of the release or coÌ„firmacion made had no ryghte is voyde in the law / though a righte come to hym after / except it be with warrauÌ„tye / theÌ„ it shall barre hym of all right that he shall haue after the warrauÌ„tye made ⧠Also that a right or title of accioÌ„ that onely dependeth in accion can nat be gyueÌ„ nor graunted to none other but onely to the tenaunt of the grouÌ„de / or to hym that hath the reuercion or remayndre of the same lande ⧠Also that in an accion of dette vpon a contracte the def maye wage his law / but otherwyse it is vpoÌ„ a lease of laÌ„des for terme of yeres or at wyll ⧠Also that if an exigent in case of felonye be awarded agaynste a man he hathe therby forthwith forfeted his goodes to the kynge ⧠Also if the sone be attaiÌ„ted in the lyfe of the father / and after he purchaseth his Chartour of pardon of the kynge / after the father dyed In this case the laÌ„de shall Eschete to the lorde of the fee in so moche that that though he haue a yoÌ„gerbrother yet the laÌ„de shall nat discende to hym / for by the atteyndre of the elder brother the blode is corrupte the father in the lawe dyed without heyre ⧠Also if an Abbot or a Priour alyene the landes of his house dyed / in that case though his successour haue right to the laÌ„de / yet he may nat entre but he muste take his accioÌ„ that is appoynted hiÌ„ by the law ⧠Also there is a maxime iÌ„ the law that if a villayne purchase landes the lord entre / he shall enioye the laÌ„de as his owne / but if the villayne alyene before the lorde entre / that alienacion is good And the same law is of goodes ⧠Also if a maÌ„ stele goodes to the value of .xii. d. or aboue it is felonye / and he shall dye for it And if it be vnder the value of .xii. d. then it is but petite larcinie he shall nat dye for it / but shal be otherwyse punysshed after the discrecioÌ„ of the Iuges except it be takeÌ„ fro the person / for if a maÌ„ take any thynge howe lytell so euer it be / from a maÌ„nes ê‘son felonously / it is called roberye he shall dye for it ⧠Also he that is areyned vpon an InditemeÌ„t of felonie shal be admitted iÌ„ fauoure of lyfe to chaleÌ„ge .xxxv. iurours pereÌ„torily but if he chaleÌ„ge any aboue that nombre / the law taketh hiÌ„ as one that hath refused the law because he hath refused thre hole enquestes / therfore he shal dye but with cause he may chaleÌ„ge as many as he hath cause of chaleÌ„ge to And further it is to be vnderstaÌ„de that suche peremtorie chaleÌ„ge shall nat be admitted in appeale because it is at the suyt of the partie ⧠Also the lande of euery man is in the law enclosed froÌ„ other though it lye iÌ„ the opeÌ„ felde And therfore if a maÌ„ do a trespas theriÌ„ the writ shal be quare clausuÌ„ fregit ⧠Also that reÌ„tes / coÌ„mons of pasture of turbary reuercioÌ„s remayndres / nor suche other thyngê which lye nat in manuell occupacioÌ„ may nat be gyuen nor grauÌ„ted to none other without writtynge ⧠Also that he that recouereth dette or damages in the kynges court by suche an accioÌ„ within a Capias lay in to the ê“cesse may withiÌ„ a yere after the recouerie haue a Capias ad satisfacienduÌ„ to take the bodye of the defendauÌ„t to coÌ„mit hiÌ„ to pryson tyll he haue payd the dette damagê but if there lay no Capias iÌ„ the fyrst accioÌ„ theÌ„ the pleyntyfe shall haue no Capias ad satisfacieÌ„duÌ„ / but muste take a Fierifacias or an Elegit withiÌ„ the yere or a Scire facÌ„ aft the yere or within the yere if he wyll ⧠Also if a release or confirmacioÌ„ be made to hym that at the tyme of the release made had no thynge in the laÌ„de cÌ„ the release or coÌ„firmacioÌ„ is voyde except certaiÌ„ cases as to vouchye certayne other whiche nede nat here to be remembred ⧠Also there is a maxime in the lawe of Englande that the kynge may dissease no maÌ„ / ne that no maÌ„ may dissease the kynge ne pull any reuercyon or remayndre out of hym ⧠Also the kynges excelleÌ„cie is so hygh in the law that no freholde may be gyuen to the kynge ne be deriuied from hym / but by matter of recorde ⧠Also there was somtyme a maxime a lawe in Englande that no man shulde haue a writte of right but by special suyt to the kynge And for a fyne to be made in the ChauÌ„cerie for it / but these maximes be chauÌ„ged by the statute of Magna carta the .xvi. Chapi where it is sayd thus Nulli negabimê° nulli vendemus rectum vel iusticiam And by the wordes nulli negabimus / a maÌ„ shall haue a writte of righte of course in the ChauÌ„cerie without suynge to the kynge for it And by the wordes nulli vendemê° He shall haue it without fyne and so many tymes the olde maximes of the law be chaunged by statutes ⧠Also though it be reasonable that for the many solde diuersities of accions that be in the lawes of Englande / that there shulde be diuersities of processe as in the reale accions after one maner / in personall accions after another maner yet it can nat be proued merely by reason that the same processe ought to be had none other / for by statute it might be altered And so
both iÌ„ lawe coÌ„scieÌ„ce nat to the rent And the reason is bycause the lande by that alienacion is forfeyt by the lawe to hym iÌ„ the reuercion nat the rent ☞ Addicion ⧠Also if landes be gyuen to two men to a woman in fee / after one of the men entermarieth with the woman alieneth the lande dyeth In this case the woman hath ryght but onely to the thyrde parte / but if the man the woman had ben maryed togyther byfore the fyrste feffement / then the woman natwithstaÌ„dyng the alienacion of her husbande shulde haue had ryght in lawe coÌ„science to the one halfe of the lande And so in these two cases coÌ„scieÌ„ce doth folowe the lawe of the realme ¶ Also if a man haue two sones / one byfore spousellys another after spouselles / after the father dyeth seased of certayne landes In that case the yonger sone shall enioye the landes in this realme as heyre to his father bothe in lawe coÌ„scieÌ„ce And the cause is / bycause the sone borne after spousellys / is by the lawe of this realme the very heyre / and the elder sone is a bastard And of these cases and many other lyke in the lawes of Englande maye be formed the Silogisme of coÌ„science / or the true iugemeÌ„t of coÌ„science in this maner Sinderesis ministreth the maior thus Ryghtwysenesse is to be done to euery man vpon whiche maior the lawe of EnglaÌ„de ministreth the minor thus The inheritance bylongeth to the sone borne aft spouselles / nat to the sone borne byfore spouselles / then coÌ„science maketh the coÌ„clusion sayth therfore the inheritaunce is in coÌ„scieÌ„ce to be gyuen to the sone borne after spousellys And so in other cases infinite may be formed by the lawe the Silogisme or the ryght iugemeÌ„t of coÌ„scieÌ„ce wherfore they that be lernyd in the lawe of the realme say that in euery case where any lawe is ordeyned for the disposicion of landes goodes / whiche is nat agaynst the lawe of god / nor yet agaynst the lawe of reason / that that lawe byndeth all them that be vnder the lawe in the courte of coÌ„science / that is to say inwardly iÌ„ his soule And therfore it is somwhat to meruayle that spirituall men haue nat endeuored theÌ„selfe in tyme past to haue more knowlege of the kynges lawes then they haue done / or that they yet do for by the ignoraunce therof they be oft tymes ignorant of that / that shuld ordre them accordynge to ryght iustice / as well coÌ„cernyng theÌ„selfe as other that come to them for coÌ„ceyll And nowe for as moch as I haue answered to thy questions as well as I can I praye the that thou wylte shewe me thy oppinion in diuers cases formed vpon the lawe of Eglande wherin I am in doute / what is to be holden therin in conscience ¶ Doctoure Shewe me thy questions I wyll saye as me thynketh therin ¶ The fyrste question of the student The .xxi. Chapitre STudent If an infaunt that is of the age of .xx. yere and hath reason and wysdome to gouerne hymselfe selleth his lande with the money therof byeth other lande of greater value then the fyrst was taketh the ê“fittes therof / whether maye that infaunte aske his fyrste lande agayne iÌ„ coÌ„scieÌ„ce / as he may by the lawe ¶ Doctour What thynkest thou in that question ¶ Stud Me semeth that for as moche as the lawe of EnglaÌ„de in this article is grounded vpon a presumpcion / that is to saye that infauntes commonly afore they be of the age of .xxi. yeres be nat able to gouerne them selfe / that yet for as moche as that presumpcion fayleth iÌ„ this infauÌ„te that he may nat in this case with conscience aske the lande agayne that he hath solde to his great auauntage as byfore appereth ¶ Doc. Is nat this sale of the infaunte and the feffemeÌ„t made thervpon if any were voydable in the lawe ¶ Stud. Yes verylye ¶ Doc. And if the feffe haue no ryght by the bargayne / nor by the feffement made therupon wherby shulde he then haue ryght therto as thou thynkest ¶ Stud. By conscience as me thynketh for the reason that I haue made byfore ¶ Docto r And vpon what lawe shulde that coÌ„scieÌ„ce be grouÌ„ded that thou spekest of / for it can nat be grouÌ„ded by the lawe of the realme as thou haste sayd thy selfe And me thynketh that it can nat be grounded vpon the lawe of god / nor vpon the lawe of reason for feffemeÌ„tes nor contractes be nat grounded vpon neyther of tho lawes / but vpon the lawe of man ¶ Stud After the lawe of propriete was ordayned / the people myght nat conueniently lyue togyther without contractes / therfore it semeth that coÌ„tractê be grouÌ„ded vpon the lawe of reason / or at the leste vpoÌ„ the lawe that is called Ius gentium ¶ Doct. Though contractes be grouÌ„ded vpon that law that is called Ius gentiuÌ„ / bycause they be so necessarye so generall amonge all people / yet that proueth nat that coÌ„tractes be grouÌ„ded vpon the lawe of reason for thoughe that lawe called Ius gentium be moche necessarye for the people yet it may be chaunged And therfore if it were ordayned by statute that there shulde be no sale of lande / ne no coÌ„tracte of goodes And if any were that it shulde be voyde / so that euery man shuld coÌ„tynewe styll seased of his landes possessed of his goodes / the statute were good And then if a man agaynst that statute solde his lande for a suÌ„me of money / yet the seller myghte lawfully retayne his lande accordynge to the statute And then he were bouÌ„de to no more / but to repaye the money that he receyued with resonable expeÌ„ces in that behalfe / and so iÌ„ lykewyse me thynketh that in this case the infant may with good coÌ„scieÌ„ce reentre in to his fyrst lande / bycause the coÌ„tracte after the maximes of the law of the realme is voyde / for as I haue herde the maximes of the lawe be of as greate strengthe in the lawe as statutes And so me thynketh that in this case the infaunt is bouÌ„de to no more / but only to repay the money to hym that he solde his laÌ„de vnto / with suche reasonable costes charges as he hath sustayned by reason of the same But if a man sell his lande by a sufficieÌ„t lawful coÌ„tracte thoughe there lacketh lyuerye of season or such other solempnities of the lawe yet the seller is bounde in conscience to performe the contracte / but in this case the contracte is insufficient / so me thynketh great diuersitie bytwyxt the cases ¶ Stud. For this tyme I holde me contented with thy opoinion ¶ The seconde question of the student The .xxii. Chapitre STudent If a man that hath landes for terme of lyfe be impanelled vpon an inquest / therupon leseth yssues
the husbande and the wyfe as one persone in the lawe shall take onlye the one halfe the thyrde person the other half / but these cases be alway to be vnderstande where the sayde estates be made without ani recompence And for as moche as in this principall case / the intent of the feoffour is groundid agaynst the lawe that there is no recompence appoynted for the feffement me thynketh that the feffour hath neyther right to the lande by lawe nor conscience / for if he shulde haue it by conscience / that coÌ„science shulde be grounded vpon the lawe of reason that it can nat / for condicions be nat grouÌ„ded vpoÌ„ the lawe of reason / but vpoÌ„ the maxymes custome of the realme And therfore it might be ordeyned by statute / that al condicioÌ„s made vpoÌ„ lande shuld be voyd And whaÌ„ a condicioÌ„ is voyde by the maximes of the lawe / it is as fully voyde to euery intent as if it were made voyde by statute / so me thynketh that in this case the feffour hath no righte to the lande in law nor in conscience ¶ Doctoure I am content thy opinion stande tyll we shall haue hereafter a better leasure to speke ferther in this matter ☞ The .v. question of the Student The .xxv. Chapitre STudent If a fine with proclamacioÌ„ be leuyed accordynge to the statute no clayme made within .v. yeres cÌ„ whether is the righte of a straunger extincted thereby in conscience / as it is in the lawe ¶ Doctoure Vpon what consideracion was that statute made ¶ StudeÌ„t that the righte of landes and tenementes myghte be the more certaynly knowen and nat to be so vncertayne as they were byfore that statute ¶ Doctoure And whan any lawe of man is made for a coÌ„mon welthe / or for a good peace and quietnes of the people / or for any inconuenience or hurte to be saued from them / that lawe is good thoughe percase it extincte the right of a straunger and must be kept in the courte of conscience for as it is said before in the .iiii. chapitre By lawes rightewysely made by man it appereth who hath righte to the landes and goodes for what so euer a man hathe by suche a lawe he hath it rightewisely And what so euer he holdeth agaynste suche a lawe he holdeth vnrightwisely And ferthermore as it is sayde there all lawes made by man / whiche be nat contrarye to the lawe of god muste be obserued and kepte / and that in conscience And he that dispiseth them dispiseth god and that resisteth them resisteth god / also it is to be vnderstande that possessions / and the righte thereof be subiecte to the lawes / so that they therefore with a cause reasonable maye be translated and altered from one man to another by the acte of the lawe And of this consideracion that lawe is grounded that by a contracte made in feyres and markettes the propretye is altered excepte the propretye be to the kynge / so that the byer paye tolle / or do suche other thynges as is a customed there to be done vpon suche contractes / and that the byer knoweth nat the former propretye And in the lawe Ciuile there is a lyke lawe that if a man haue another mannes good with a title .iii. yere thynkynge that he hath righte to it he hath the very righte vnto the thynge and that was made for a lawe to the intente that the propretye and ryghte of thynges shulde nat be vncertayne / that variaunce stryfe shulde nat be amonge the people And for as moche as the sayd statute was ordayned to gyue a certeiÌ„te of title in the landes tenemeÌ„tes comprised in the fyne / It semeth that that fyne extiÌ„cted the title of all other / as well in conscieÌ„ce as it dothe in the lawe And sythe I haue answered to thy question I praye the let me knowe thy mynde in one question concernynge tayled landes than I will trouble the no ferther at this tyme. ☞ A questioÌ„ made by the Doctour / how certayne recoueries that be vsed iÌ„ the kynges courtes to defete tayled lande may stande with conscience The .xxvi. Chapitre DOctour I haue herde say that whaÌ„ a man that is seased of laÌ„des in the tayle selleth the lande That it is coÌ„monly vsed that he that byeth the lande shal for his suertye / for the auoydyng of the tayle in that behalfe / cause some of his frendes to recouer the sayde landes agaiÌ„st the sayd tenaunt in tayle whiche recouerye as I haue ben credably enformed shal be had in this maner / the demaundauÌ„tes shall suppose in theyr writte declaracion that the tenaÌ„t hath no entre / but by suche a straunger as the byer shall liste to name appoynte / where in dede the demaundauntes neuer had possession therof / nor yet the sayde straunger And thereupoÌ„ the sayde tenaunte in tayle shall appere in the court by coueÌ„ by alient of the parties / shall vouche to warrante one that he knoweth well hath nothynge to yelde in value And that vouche shall appere the demaundauntes shall declare agaynst hym / therupon he shall take a day to enperle iÌ„ the same terme at that day by assent couen of the partyes / he shall make defaulte vpoÌ„ whiche default bycause it is a default in despite of the court / the demaundauntê shall haue iugemeÌ„t to recouer agaynst the tenaunt in tayle / he ouer in value agaiÌ„st the vouche this iugement recouery in value / is taken for a barre of the tayle for euer / howe may it therfore be taken that that lawe standeth with conscieÌ„ce that as it semeth aloweth fauoureth suche fayned recoueries ¶ StudeÌ„t If the tenaÌ„t in tayle sel the laÌ„de for a certayn suÌ„me of money as is agreed betwixte them at suche a pryce as is coÌ„monly vsed of other landes / for the suertye of the sale suffereth suche a recouerye as is aforesayd / what is the cause that moueth the to doubte whether the sayd contracte or the recouery made thereupon for the suertye of the byer that hath truely payd his money for the same shuld stande with conscience ¶ Doctour Two thynges cause me to doute therein / one is for that that aft our lorde had gyuen the lande of byheste to Abrahan to his sede / that is to saye to his chyldren in possession alwaye to continue / he sayde to Moyses as it appereth LeuiticeÌ„ xxv the lande shall nat be solde for euer / for it is myne And than our lorde assigned a certayne maner howe the lande might be redemed in the yere of Iubilie if it were sold byfore for as moche as our lorde wolde that the lande so gyuen to Abraham his chyldren shuld nat be solde for euer / it semeth that he dothe agaynst the ensample of god that alieneth or selleth the laÌ„de that is gyueÌ„ to him to
his chyldreÌ„ as laÌ„des intayled be gyuen Another cause is this it appereth by the coÌ„mauÌ„demeÌ„t of god that thou shalt nat coueyt the house of thy neyghboure cÌ„ And if the coÌ„cupisceÌ„ce be ê“hibited more stroÌ„ger the vnlawfull takinge withholding therof is prohibit / for as moche as tayled lande whaÌ„ the auncestre is deed is a thynge that of righte is belongynge to his heyre / for that he is heyre accordynge to the gyfte / how may that laÌ„de with right or conscieÌ„ce be holden froÌ„ hym ¶ StudeÌ„t Natwithstandynge that prohibicion of almighti god wherby the laÌ„de that was gyuen to Abraham to his seed might nat be aliened for euer / yet landes within walled townes might lawfully be aliened for euer / excepte the landes of the leuites as it appereth in the sayde chapitre of Leuitici .xxv. And so it appereth that the sayd prohibicion was nat generall for euery place that amonge the Iewes And it appereth also that it was gyuen onely for Abraham his chyldren / so it was nat generall to all people And it appereth also that it extended nat but onely to the lande of promission / as it appereth by the wordes of the sayd chapitre / where it is sayde thus all the region of your possession shal be solde vnder the condicion of redemynge / whereby appereth that landes in other countres be nat bounde to that condicion / and as they be nat bounde to that condicion by the same reason / it foloweth that they be nat bounde to the same succession Therefore the sayde lawe that wyll that the lande gyuen to AbrahaÌ„ to his seed shall nat be solde for euer / bindeth no lande out of the lande of promission / some men will say that sythen the passion of our lord was promulgate knowen it byndeth nat there And to the secoÌ„de reason whiche is grounded vpon the coÌ„mauÌ„demeÌ„t of god It must nedes be grauÌ„ted that it is nat lawfully to any man vnlawfully to couere the howse of his neyghbour / that than more stronger he maye nat vnlawfully take it from hym but thaÌ„ it remayneth for the yet to proue / howe in this case this tayled lande that is solde by his auncestre / whereof a recouery is had of recorde in the kynges courte maye be sayd the lande of the heyres ¶ Doctour that may be proued by the law of the real me / that is to say by the statute of westmiÌ„ster the seconde the fyrste chapitre / where it is sayd thus The wyll of the gyuer expressely contayned in the dede of his gyfte shal be from hensforth obserued / so that they to whome the tenementes be so gyueÌ„ shal nat haue power to alyen / but that the landes after theyr deth shall remayn to theyr issue or retourne to the donour if the issue fayle / by the whiche statute it appereth euidently that though they to whome the tenementes were so gyuen aliened them awaye / that yet neuerthelesse they in law conscience by reason of the sayde statute ought to remayn to the heyres according to the gyfte / for it is holden commonly by all Doctoures that the coÌ„maundementes rewles of the lawe of maÌ„ or of a positiue lawe that is lawfully made / bynde all that be subiectes to that lawe accordyng to the mynde of the maker that in the court of conscience ¶ Student Doest thou thiÌ„ke that if a man offende agaynst a statute penall that he offendeth in conscience admit that he do it nat of a wilfull disobedience for that he wyll nat obey the law / for if he do it of disobedience I thynke he offeÌ„deth ¶ Doctour If it be but onely a statute that is called Populare it byndeth nat in conscience to the payment of the penalitie / til it be recouered by the lawe And than it dothe bynde in conscience / but if a statute be made principally to remedy the hurte of the partye / for that hurte it gyueth a penaltye to the partye in that case the offendour of the statute is bounde immediatly to restore the damages to the value of the hurt as it is vpon the statute of waste / but the penaltye aboue the hurte he is nat bounde to pay tyll iugement be gyuen as it is sayd byfore / but statutes by the which it is assigned who shall haue right or proê‘tye to these laÌ„des tenemeÌ„tes / or to these goodes or catailes if it be nat agaynst the lawe of god / nor agaynst the lawe of reason bynde all them that be subgecte to the lawe in lawe conscience / suche a statute is the statute of westminster the .ii. whereof we haue treated byfore / wherefore it must â–ª be obserued in conscience ¶ Stud. But some holde that the sayde statute of Westmynster â–ª the .ii. was made of a singularitie presumpcion of many that were at the sayd parliament for exaltinge and magnifienge of theyr owne blode therfore they saye that that statute made by suche a presumpcion byndeth nat in conscieÌ„ce ¶ Doctour It is very perillous to iuge for certayne that the sayde statute was made of suche a presumpcion as thou spekest of / for there be many consideracions to proue that the sayd statute was nat made of suche a presumpcion but rather of a very good mynde of all the parlyamente / or at the leste of the more parte thereof / for the common welthe of all the realme / fyrste in the kyng the whiche in the said parliament was the hede and moste chyef principall parte of the parliament as he is in euery parliament / can nat be noted no suche inteÌ„t / For it is nat necessary nor it was nat than in vse that landes of the crowne shulde be entayled in spirituall men ne yet in certayne burgesies cytizeÌ„s of the sayde parlyamente whiche at that tyme had no lande / there can be noted no suche singularitie / nor yet in the noble meÌ„ gentilmen nor suche other as were of the sayd parliameÌ„t had landes tenemeÌ„tes It is nat good to iuge iÌ„ certayn that they dyd it of suche a presuÌ„pcion / but it is good and expedient in this case as it is in other cases that be in doubte to holde the surer waye / and that is that it was made of charitie / to the intente that he nor the heyres of hym to whome the lande was gyuen shulde nat falle in to extreme pouertye / and thereby haplye to ronne in to offence agaynste god / and thoughe it were trewe as they saye that it was nat made of charytie but of presumpcion and singularitie as they speke of Neuerthelesse for as moche as the statute is nat agaynste the lawe of god nor agaynste the lawe of reason it must be obserued by all theÌ„ that be subiectes vnto that lawe / For as IohnÌ„ Gerson sayth in the treatyse that he entituleth in latine De vita spirituali anime the
saye if a man make a feoffement in fee vpon condiciō that the feffe shall nat alien it to any man that condiciō is voyde for it is incidente to euery state of the fee simple that he that is so seased may alien And lyke as in a fee simple there is incident a power to aliene / so in a state tayle there is a secrete intent vnderstande in the gyfte / that no alienacion shal be made And therefore thoughe the intente of the sayde Iohan at noke were that if he fell in to pouertie that he might sel though he at the takynge of the gyfte openly declared his intente to be so / yet that intent shulde be voyde by the lawe as me semeth and if it be voyde by the lawe it is also voyde in conscience / and so the sayde recouery muste be taken in this case to be of the same effecte as recoueryes of other landes intayled be / and in none other maner ☞ The .iiii. question of the Student / cōcernynge recoueryes of enheritaūce entayled The .xxx. Chapitre STudent If an annuite be graunted to a man to haue to perceyue to the graunt and to the heyres of his body of the cofers of the grauntour And after the graunte suffereth a recouere agaynste hym in a writte of entre by the name of a rent in dale of lyke summe as the annuite is of with vouchers iugemēt after the cōmon course / bothe parties intende that that annuite shal be recouered whether shal that recouere binde the heyre ī the tayle of his annuite ¶ Doctor. what if it were a rēt goynge out of lāde of what effect shuld the recouere be than ¶ Student It shuld be than of lyke effecte as if it were of lande ¶ Doctoure And so it semeth to be of this annuite / for as me thynketh a rēte an annuite be of one effecte / for the one of them shal be payde in redye money as the other shal ¶ Studēt That is trouth and yet there be many greate diuersities betwixte them in the lawe ¶ Doctoure I praye the shewe me some of tho diuersities ¶ Student Parte I shall shewe the / but I wot nat whether I can shew the al but fyrste thou shalte vnderstāde that one diuersitie is this Euery rente be it rente seruice / rente charge / or rēt seke / is goyng out of lande / but an annuite goth nat out of any lande / but chargeth onely the person that is to saye the grauntoure or hys heyres that haue assez by discente / or the howse if it be graunted by a howse of a religion to perceyue of theyr cofers Also of an annuyte there lyeth no accion but onely a writ of annuite agaynst the graūtour his heyres or successours / that writ of annuite lyeth neuer agaynste the pernoure but onely agaynste the grauntour or his heyres / but of a rente the same accions maye lye as do of lande as the case requyreth it lyeth somtyme of rente agaynste the tenaunte of the grounde / and somtyme agaynst the pernour of the rent / that is to saye agaynste hym that taketh the rent wrongefully / somtyme agaynst neyther as of a rente seruyce assise maye lye for the lorde agaynste the mesme and a dissesoure / or somtyme agaynste the mesne onely if he dyd also the disseason Also an annuite is neuer taken for an asses bycause it is no freholde in the law / ne it shal nat be put in execucion vpō a statute marchaunt / statute staple ne elegit as rente maye And bycause the sayde writte of entre laye nat in this case of this annuite And that it can nat be entēded in the law to be the same annuite / though it be of lyke summe with the annuite ne though the parties assented and mente to haue thesame annuite recouered by the sayde writte of entre / therefore the sayde recouerie is voyde in lawe and conscience / but if suche a recouerie be had of rente with a vouchere ouer than it shal be taken to be of lyke effecte as recoueries of landes be in suche maner as we haue treated of before ☞ The .v. question of the Student / concernynge tayled landes The .xxxi. Chapitre STudent If landes be gyuen to a mā and to his wyfe in the name of his ioyntoure by the father of the husbāde to haue and to holde to them and to the heyres of theyr two bodyes begotten / and after they haue issue the husbande dyeth and the wyfe alieneth the lande / against the statute of .xi. H. vii suffereth a recouerye thereof to be had agaynste her to the vse of the byer / and after her sone heyre apparaunte / that is heyre to the tayle releaseth to the recouerers by fyne dyeth hauynge a brother on lyue / and after the mother dyeth who hath righte to that lāde the byer or the brother of hym that released ¶ Doctoure what is thyne oppinion therein / I praye the shewe me ¶ Student We semeth that the byer hathe righte / for by the sayd statute made in the .xi. yere of kynge Henry the .vii. amonge other thynges it is enacted that if any man / whiche hath landes of the gyft of her husbande / or of the gyfte of any of the auncestoures of the husbande / suffre any recouerye thereof agaynste her by couyne / that than suche recouerye shall be voyde / and that it shal be lawfull to hym that shulde haue the lande after the dethe of the woman to entre and it to holde as in his fyrste righte / prouided alwaye that that statute shall nat extende where he that shulde haue the lande after the dethe of the woman is agreable to any suche alienacion or recouerye so that / that agremente be of recorde And for as moche as the heyre in this case agreed to the said recouerye by fyne / whiche is one of the hyest recordes in the lawe / it semeth that the byer hath righte agaynste that heyre that agreed and agaynste all that shal be heyres of the tayle / and that nat onely by the sayde recouery / but also by the sayde statute whereby the sayde recouerye with assent of the heyre is affermed ¶ Doctor Though the byer in this case haue righte during the lyfe of the heyre that released / yet neuertheles after his dethe his heyre as it semeth maye lawfully entre / for the agremēt wherof the statute speketh must as I suppose eyther be had before the recouery / or els at the tyme of the recouery for if a title by reason of the sayd statute be ones deuolute to the heyre in the tayle / than that right as it semeth can nat be extincte nor put awaye by the onely fyne of the heyre / no more than if he had dyed and the nexte heyre to hym had released to the byer by fyne / in whiche case the release coulde nat extincte the righte of the
/ wherby it is ordeyned that a tenant for terme of lyfe shall haue in ayde / for he can nat say but that he toke a greater estate by the lyuerey of season that was made to hym whiche yet coÌ„tinueth than for terme of lyfe / so I thynke hym nat bounde to make any restitucion to hym in the reuercion in this case for the waste ¶ Do. Is thy mynde onely to proue that thê tenant is nat bounde to make restitucion to hym in the reuercion for the waste or that thou thynkest that he may with clere conscieÌ„ce do all maner of wast ¶ Stud. I entende to proue no more but that he is nat bouÌ„de to restitucion to hym in the reuercion ¶ Do. Than I wyll ryght well agree to thyn oppinion for the reason that thou haste made / but if thy mynde had ben to haue proued that he myght with clere conscience haue done all maner of waste I wolde haue thought the contrary therto / and that the tenant in fee simple may nat do all maner of waste destruction with conscieÌ„ce / as to pull downe houses make pastures of cyties townes / or to do suche other actes whiche be agaynst the comon welthe And therfore some wyll say that tenant in fee simple may nat with coÌ„scieÌ„ce destroye his wodes cole pyttes wherby a hole contrey for theyr money haue had fuell And yet though he do so he is nat bounde by conscience to make restitucion to no person in certayne But now I pray the or thou ê“cede to the seconde case that thou wylte somwhat shewe me what thou meanest whan thou sayest at the comon lawe it was thus or thus I vnderstande nat fully what thou meanest by that tme at the comon lawe ¶ Stud. I shall with good wyl shewe the what I mene therby ¶ What is ment by this terme whan it is sayd / thus it was at the comon lawe The seconde chapitre STudent The comon lawe is taken thre maner of ways Fyrst it is taken as the law of this realme of EnglaÌ„de disceyuered from all other lawes / vnder this maner taken It is oftentymes argued in the lawes of Englande what maters ought of ryght to be determined by the comon law / what by the admiralles courte or by the spirituall courte And also if an obligacion bere date out of the realme / as in Spayne / FrauÌ„ce / or suche other It is sayd in the lawe trouthe it is that they be nat pledable at the comon lawe Secondely the comon lawe is taken as the kynges courtes of his benche or of the comon place / it is so taken whan a ple is remoued out of auncien demeane for that the lande is franke fee and pledable at the comon lawe / that is to saye in the kynges courte nat in ancien demeane And vnder this maner taken / it is ofteÌ„tymes pleaded also in base courtes as in court Barons / the Contie the court of Pypouders and suche other that this mater or that cÌ„ ought nat to be determined in that courte but at the comon lawe / that is to saye in the kynges courtes cÌ„ Thyrdely by the comon lawe is vnderstande suche thyngê as were lawe before any statute made in that point that is in question so that / that poynt was holden for lawe by the general or particuler customes maximes of the realme or by the lawe of reason the lawe of god no other lawe added to them by statute nor otherwyse / as iÌ„ the case before rehersed in the fyrste chapitre where it is sayde that at the comon lawe tenante by the curtesy tenant in dower were punysshable of waste / that is to say / that before any statute of waste made they were punysshable of waste by the grounde maximes of the lawe vsed before the statute made in that pointe / but tenant for terme yf lyfe ne for terme of yeres were nat punysshable by the sayde groundes maximes tyll by the statute remedy was gyuen agaynste them therfore it is sayde that at the comon law they were nat punysshable of waste ¶ Doc. I pray the now procede vnto the seconde question ¶ The seconde question of the student The thyrde chapitre STudent If a man be outlawed neuer had knowlege of the sute / whether may the kynge take all his goodes reteyne them in conscience as he maye by the lawe ¶ Docour What is the reason why they be forfeyted by the lawe in that case ¶ Stud. The very reason is for that it is an olde custume an olde maxime in the lawe that he that is outlawed shall forfeyte his goodes to the kynge / and the cause why that maxime began was this WhaÌ„ a maÌ„ had done a trespace to another or an other offence wherfore processe of outlagary laye / he that the offence was done to had taken an accion agaynst hym accordyng to the lawe / if he had absented hym selfe and had had no laÌ„des there had ben no remedye agaynst hym for after the lawe of EnglaÌ„de no man shal be condemned without aunswere / or that he appere and wyll nat answere / except it be by reason of any statute Therfore for the punisshement of suche offenders as wolde nat appeare to make answere to be iustified in the kyngê courte / it hath ben vsed without tyme of mynde / that an attachemeÌ„t in that case shulde be directed agaynste hym returnable into the kynges benche or the comon place / and if it were returned there vpoÌ„ that he had nought wherby he might be attached that than shulde go forthe a Capias to take his persone / and after an alias Capias / than a Pluries and if it were returned vpon euery of the sayd Capias that he coulde nat be founde and he appered nat than shulde an ExigeÌ„t be dyrected agaynste hym whiche shulde haue so longe daye of returne / that fyue couÌ„ties myght be holden before the returne therof and in euery of the sayde fyue conties the defendant to be solemlye called and if he appered nat / than for his contumacy and disobedience of the lawe the coroners to gyue iugement that he shal be outlawed / wherby he shall forfeyt his goodes to the kynge lese diuers other aduantages in the law y nedeth nat here to be remeÌ„bred nowe And so bycause he was in this case called accordynge to the lawe appered nat it semeth that the kyng hath good tytle to the goodes bothe in lawe coÌ„scieÌ„ce ¶ Doctoure If he had knowelege of the sute in very dede it semeth the kynge hath good tytle in coÌ„science as thou sayest But if he had no knowlege therof it semeth nat so / for the defaut that is adiuged in hiÌ„ as it appereth by thyne owne reason is his contumacie and disobedience of the lawe / and if he were ignoraunt of the sute / than can there ben assigned in
hym no disobedience / for a disobedience implieth a knowelege of that he shulde haue obeyed vnto ¶ Student It semeth iÌ„ this case that he shulde be coÌ„pelled to take knowlege of the sute at his peryll / for sythe he hathe atteÌ„pted to offeÌ„de the lawe it semeth reasoÌ„ that he shal be compelled to take hede what the lawe wyll do agaynst hym for it / and nat onely that but that he shulde rather offre amendes for his trespasse than for to tary tyll he were sued for it And so it semeth the ignoraunce of the sute is of his owne defaute / specially syth iÌ„ the lawe is set suche ordre that euery man may knowe if he wyll what sute is taken agaynst hym / and may se the recordes therof whan he wyll / so it semeth that neyther the partye nor the lawe be nat bounden to gyue hym no knowlege therin And ouer this I wolde somwhat moue ferther in this mater thus That though the accioÌ„ were vntrue / the defendauÌ„t nat gylthy / that yet the goodes be forfeyted to the kyng for his nat apparauÌ„ce in lawe also in conscieÌ„ce / that for this cause / the kyng as souereyne hed of the lawe is bouÌ„den of iustice to grauÌ„t such writtes and such ê“cesses as be oppoynted in the lawe to euery ê‘sone that wyll complayne be his surmyse true or false / there vpon the kynge of iustice oweth as well to make processe to bryng the defendaunt to answere whaÌ„ he is nat gyltye as whan he is gyltie / thaÌ„ whaÌ„ there is no maxime in the lawe that if a man be outlawed in suche maner as before apê‘eth that he shall forfayte all his goodes to the kynge / maketh no excepcioÌ„ whether the accioÌ„ be true or vntrue / it semeth that the sayd maxime more regardeth the generall ministracion of iustice than the particuler ryght of the party that therfore the property by the outlawry by the sayd maxime ordeyned for ministracion of iustice is altered and is gyuen to the kynge as byfore appereth / that both in lawe and coÌ„science as wel as if the accion were true And than the ê‘tie that is so outlawed is dryuen to sue for his remedy agaynste hym that hath so caused hym to be outlawed vpon an vntrue accioÌ„ ¶ Doct. If he haue nat sufficient to make recompence or dye before recouere can be had / what remedy is than ¶ Student I thynke no remedy / and for a ferther declaracion in this case and in suche other lyke cases where the propertie of goodes maye be altered without asseÌ„t of the owner it is to coÌ„sydre that the ê“pertie of goodê be nat gyueÌ„ to the owners directly by the law of reason nor by the lawe of god but by the lawe of man / is suffred by the lawe of reason by the law of god so to be For at the begynnyng al goodê were in comoÌ„ / but after they were brought by the lawe of man into a certeyne ê“pertie so that euery man myght knowe his owne thaÌ„ whan such ê“pertie is gyueÌ„ by the law of maÌ„ the same lawe may assigne such coÌ„dicioÌ„s vpoÌ„ the ê“pertie as it lysteth / so they be nat agaynst the lawe of god ne the lawe of reason / and may lawfully take away that it gyueth / appoynt howe longe the ê“perty shall continue And one coÌ„dicioÌ„ that goeth with euery ê“perty iÌ„ this realme is if he that hathe the ê“perty be outlawed accordyng to such proces as is ordeyned by the lawe / that he shal forfayte the propertie vnto the kyng / and diuerse other cases there be also wher by propertie in goodê shal be altered in the lawe and the ryght in landes also without assente of the owner / wherof I shall shortely touche some without laynge any aucthorite therin / for the more shortnes Fyrst by a sale in open marked the propertie is altered Also goodes stolen and seased for the kynge or weyued be forfaite oneles appelle or enditement be sued Also strayes if they be proclaymed and be nat after claymed by the owner within the yere be forfayte / also a deodand is forfayte to whome so euer the property was byfore / except it belonged to the kynge and shal be disposed for the soule of hym that was slayne therwith and a fyne with a nonclayme at the comoÌ„ lawe was a barre if claime were nat made within a yere as it is nowe by statute if the clay We be nat made withiÌ„ .v. yeres And al these forfaytures were ordeyned by the lawe vpon certayne consideracions whiche I omit at this tyme / but certeyne it is that none of theÌ„ was made vpoÌ„ a better coÌ„sideracion than this forfayture of outlagary was For if no especiall punisshemeÌ„t shulde haue ben ordeyned for offenders that wolde absent them selfe nat appere whan they were sued in the kyngê courtes many sutes in the kinges courtes shulde haue ben of smale effecte And sythe this maxime was ordeyned for the execucion of Iustice and as moche done therin by the comon lawe as policie of maÌ„ coulde reasonably deuise to make the partie haue knowelege of the sute and nowe is added therto by the statute made the syxte yere of kynge Hnry the .viii. that a writte of proclamacion shal be sued if the partie be dwellynge in a nother shyre / it semeth that such title as is gyueÌ„ to the kyng therby is good in coÌ„scieÌ„ce / especially seyng that the kyng is bounden to make processe vpon the surmyse of the playntyfe may nat examine but by the ple of the partie whether the surmyse be true or nat But if the partie be retourned .v. tymes called where in dede hf was neuer called as in the seconde case oe the laste Chapitre of the sayd dialogue iÌ„ latyne is conteyned / than it semeth the partie shall haue good remedy by petition to the kynge / specially if he that made the returne be nat sufficient to make recoÌ„pence or dye byfore recouere can be had ¶ Doct. Nowe syth I haue herde thyne opinion in this case wherby it appereth that many thyngê muste be sene or a ful and a playne declaracion can be made in this behalfe / seyng also that the plaine answere to this case shall gyue a great lyght to dyuerse other cases that may come by suche forfeyture I pray the gyue me a ferther respyte or that I shewe the my ful opinion therin / and here after I shall ryght gladly do it And therfore I pray the procede nowe to some other case ⧠The thyrde question of the student The fourth Chapitre STudent If a straunger do waste in laÌ„des that a nother holdeth for terme of lyfe without assent af the tenaunt for terme of lyfe wether may he in the reuercion recouer treble damages and the place wasted agaynste the tenaunt for terme of lyfe accordyng to the statute in conscience as he may by the lawe if
though it were as thou sayst / yet thou cannest nat say but that there is as great defaut in hiÌ„ as is in hym in the reuercion / that there is as great reason why he shulde be charged with the waste as that he in the reuercion shulde be disherited and haue no maner remedy ne yet no profytte of the lande as the other hathe / and thoughe he sayd maxime may be thought very streyt to the sayd tenauntes yet is it for to be fauoured as moche as may be reasonably / bycause it helpeth moche the comon welthe / for it hurteth the comon welthe greately whan wodes and houses ben destroyed / if they shulde answere for no waste / but for waste done by them selfe there myght be waste done by straungers by theyr coÌ„mauÌ„demeÌ„t or assent in suche colourable maner that they iÌ„ the reuercion shulde neuer haue ê“fe of theyr assent ¶ Doctoure I am coÌ„tent thyne opinion stande for this tyme / and I praye the nowe procede to a nother question ⧠The fourth question of the student The .v. Chapitre STudente If he that is the very heyre be certified by the ordinarie bastarde and after bryng an accion as heyre agaynste an other ê‘sone / whether may any man knowyng the trouthe be of counsayle with the tenaunt and plede the sayd certificate agaynst the demaundaunt by conscience or nat ¶ Doctoure Is the lawe in this case that al other against whome the demaundaunt hathe tytle shall take aduaÌ„tage of this certificate as well as he at whose sute he is certified bastarde ¶ Student ye verely / that for two causes / wher of the one is this There is an old maxime in the lawe that a mischyfe shal be rather suffred thaÌ„ an inconuenieÌ„ce / than in this case if a nother writte shuld afterwarde be sent to a nother bysshope iÌ„ an other accion to certifie wether he were bastarde or nat / peraduenture that bysshope wolde certifie that he were mulier / that is to say lawfully begotten and than he shulde recouer as heyre / and so he shulde in one selfe court be taken as mulier bastarde / for auoydynge of whiche contrariosyte the lawe wyll suffre no mo wrytes to go forth in that case / and suffreth also all men to take aduauntage of that certificate rather thaÌ„ to suffre suche a contradicion in the courte whiche in the lawe called an inconuenieÌ„ce / the other cause is bycause this certificate of the bysshope is the hyest trial that is iÌ„ the law iÌ„ this behalfe But this is nat vnderstaÌ„de but where bastardy is layde in one that is ê‘ty to the wryt / for if bastardy be layde in one that is estraÌ„ge to the writ as iÌ„ a vouch pray en ayde or suche other / than that bastardy shal be tried by .xii. meÌ„ by which triall he iÌ„ whome the bastardy is layde shall nat be coÌ„cluded bycause he is nat priue to the trial may haue no attaiÌ„t / but he that is ê‘ty to the issue may haue attaint / therfore he shal be coÌ„cluded none other but he for as moche as the sayd maxime was or deyned to eschewe an incoÌ„uenieÌ„cy as byfore apê‘eth it semeth that euery man lerned may with coÌ„scieÌ„ce plede the said certificate for auoydyng therof / gyue couÌ„saill therin to the ê‘ty accordyng vnto the lawe for els the sayd incoÌ„uenieÌ„cy must nedely folowe But yet neuertheles I do nat meane therby that the party may after whan he hath barred the demauÌ„daÌ„t by the sayd certificate reteine the lande in coÌ„scieÌ„ce by reason of the sayd certificate / for though ther be no lawe to coÌ„pel hym to restore it / yet I thynke well that in coÌ„science he is bounde to restore it / if he knowe that the demaundauÌ„t is the very true heyre wherof I haue put diuerse cases lyke in the .xvii. chapi of our fyrst dialogue iÌ„ latyn but my enteÌ„t is that a maÌ„ lerned iÌ„ the lawe iÌ„ this case other lyke may with coÌ„scieÌ„ce gyue his counsayle accordynge to the lawe in auoydyng of such thyngê as the lawe thynke it shuld for a resonable cause be eschewed ¶ Doc. Though he that doth nat know whether he be bastarde or nat may gyue his counsayle also plede the sayd certificate yet I thynke that he that doth knowe hym selfe to be the very true heyre may nat plede it / that is for two causes Wherof the one is this Euery man is bounde by the lawe of reason to do as he wolde be done to / but I thynke that if he that pledeth that certificate were in lyke case he wold thynke that no maÌ„ knowyng the sayd certificate to be vntrue myght with conscience plede it agaynst hiÌ„ / wherfore no more may he plede it agaynst none other The other cause is this / although the certificate be pleded yet is the tenaunt bouÌ„den in conscience to make restitucion therof as thou hast sayd thy selfe / thaÌ„ in case that he wolde nat make restitucion / than he that pleadeth the plee shulde renne therby in lyke offence / for he hathe holpen to set the other man in suche a liberty that he may chose whether he wil restore the laÌ„de or nat / and so he shulde put hym selfe to the ieoparty of a nother mannes conscience And it is wryten Ecclesiasti .iii. Qui amat periculum peribit in illo That is / he that wylfully wyll put hiÌ„ selfe in ieoparty to offende shal perysshe therin / and therfore it is the surest way to eschew perylles / fro hym that knoweth that he is heyre nat to plede it / and as for the inconuenience that thou sayest must nedely folowe but the certificate be pleded as to that it may be answered that it maye be pleded by some other that knoweth nat that he is very heyre / and if the case be so farre put that there is none other lerned there but he than me thynketh that he shall rather suffre the sayd inconuenience than to hurt his owne conscience / for alwaye charite beginneth at him selfe so euery man ought to suffre all other offences rather than he hym selfe shulde offende And nowe that in this case I pray the procede to thou knowest myne opinion a nother question ⧠The .v. question of the student The .vi. Chapitre STudent Whether may a man with coÌ„science be of counsayle with the playntyfe in an accion of the comon lawe knowynge that the defendaunt hathe sufficient mater in conscience wherby he may be discharged by a Sub pena in the chauÌ„cery whiche he can nat pleade at the comoÌ„ lawe or nat ¶ Doctoure I praye the put a case therof in certeyne for els the questioÌ„ is very generall ¶ Student I wyll put the same case that thou puttest iÌ„ our fyrste dialogue in latyne the .x. Chapitre that is to say / if a man bounde in an obligacion / pay the money taketh none acquitaunce so that by
If a man bye laÌ„de or take it of the gyfte of an other it is reason that he take it with the peryll though he be ignorauÌ„t that a nother hath ryght / for it were nat standynge with reason that his ignoraunce shulde extyncte the ryght of a nother / but in this case ther is no doute of the ryght of the lande / but al the doute is howe the rent shal be ordred in conscience if he that hathe the rente take parte of the lande / and therin is great diuersite bytwene hym that is ignoraunt in the lawe / and him that knoweth the lawe / and knowethe well also that he hathe a rent out of that land and other For I put case that he asked counsayle of the grauntour hym selfe therin and he saynge as he thought tolde hiÌ„ that the takyng of the one acre shuld nat extyncte the rent but for the porcion and so he thynkynge the lawe to be toke the other acre of his gyfte Is it nat reasonable in that case that that ignoraunce shulde saue the rent in conscience ¶ Student yes / for there the grauntour hym selfe is partie to his ignoraunce and is in maner the cause therof ¶ Doctour And me thynkethe all is one if any other had shewed hym so / or if he had asked no counsayle at all / for me thynkethe it suffiseth in this case that he be ignorauÌ„t of the lawe / for why / it is more harde in this cas to proue that the rent shulde be extyncte in conscience thoughe he knowe it shal be extyncted in the lawe than to proue that it continueth in conscience after the porcion if he be ignoraÌ„t / thou thy self were of the same opinion / as it appereth in the begynnynge of this present Chapitre / but if that opinion were true it wolde be hard to ê“ue but that the sayd generall maxime were holly agaynste reason / thaÌ„ it were voyd / but I haue sufficiently answered therto as me semethe / and that it is extyncte in the lawe and also in conscience / excepte ignoraunce helpe it to be apporcioned And more ouer for as moch as apporcionemeÌ„t is suffred in the lawe where ê‘te of the land discendeth to the grauntee bycause no defaute can be assigned in hym / so me thynketh no defaute can be assigned in hym in conscience whaÌ„ he is ignorauÌ„t of the lawe or of the dede thoughe suche ignorauÌ„ce do nat excuse in the lawe of the realme ¶ Student I am contente with thyne opinion in this behalfe at this tyme. ⧠The .xv. question of the student The .xvii. Chapitre STudent A maÌ„ grauÌ„teth a reÌ„t charge out of two acres of lande / and after the grauntour enfeoffeth Henry hert in one of the sayd two acres to the vse of the sayd Henry herte and of his heyres / after the sayd Henry herte entendynge to extyncte all the rent causeth the sayd acre to be recouered agaynste hym to his owne vse in a wryt of entre in the post in the name of the grauntee and of other after the comon course / the grauntee nat knowyng of it / and by force of the sayd recouere the other demaundauÌ„tes entre and dye / lyuyng the grauntee / so that the grauÌ„tee is seased of al by the surueiour to the vse of the sayd Henry herte / whether is the sayd rent extyncte in conscience in parte nor in all or iÌ„ no parte ¶ Doctour I am in doute of the lawe in this case ¶ Student In what poynt ¶ Doctoure whether the hole rent be goynge out of the acre that remayneth in the handes of the grauÌ„tour bycause the grauntee cometh to the lande by waye of recouere / or that it shal be extyncte in the law / but after the porcioÌ„ by cause the grauÌ„tee hathe nat the acre to his owne vse / or that the hole reÌ„t shal be extincte iÌ„ the lawe ¶ Student The rent can nat be hoole goynge out of the acre that the grauntoure hathe / for this recouere is vpon a fayned tytle / the grauÌ„tour bycause he is strauÌ„ge to it shal be well resceyued to falsifie it But if the recouerye had ben vpon a true tytle than it had ben as thou sayest / for if the grauntee recouer the one acre agaynst the grauntour vpon a true tytle / the grauÌ„tour shall pay the hole rent out of that laÌ„de that remayneth in his haÌ„de / and as to the vse it maketh no mater to the grauntoure as to the lawe in whome the vse be / for the possession without the vse extynguyssheth the hole rent as agaynst hym in the lawe as well as if the possession vse were both ioyned to gether in the grauntee ¶ Doct. Than me thynkethe that the sayd Henry herte is bounden in conscience to paye the grauÌ„tee the rent after the porcion of that acre that was recouered / for it caÌ„ nat staÌ„de with conscience that he shulde lose his rent and haue no profites of the lande ¶ Student Than of whome shall he haue the other porcion of his rente ¶ Doctoure Is the lawe clere that the acre that the grauntour hath shal be in this case discharged in the lawe ¶ Student I take the lawe so ¶ Doctour And what in conscience ¶ Student As agaynste the grauntoure me thynketh / also it is extyncte in conscience for the reason that thou hast made in the .xvi. Chapitre / for it is all one in conscience in this case as agaynst the grauÌ„tour whether the recouere were to the vse of the grauntee or nat / especially seynge that the grauntoure is nat priuey to the recouery / for the vnite of possession is the cause of extinguisshemeÌ„t of the rent against the grauÌ„toure bothe in lawe and conscience where so euer the vse be / but if the grauntour had ben priuey to the cause of the extynguisshement as he was in the case that I put in the laste Chapitre where the grauntoure enfeoffed the grauntee of one of the acres to the vse of the grauntee there it is nat extyncte in conscience in that acre that remayneth in the handes of the grauntoure thoughe it be extyncted iÌ„ the lawe / bycause he was pryuey to the extynguisshement hiÌ„selfe / but he is nat so in this case / and therfore it is extyncte agaynst hym iÌ„ lawe and conscience And therfore me thynkethe that the grauntee shall in conscience haue the hoole rente of the sayd Henry herte that caused the sayd recouere to be had in his name / for in hym was all the defaute / but it is to be vnderstande that in all the cases where it is sayd byfore in this Chapitre or in the Chapitre nexte byfore that the rent is extincte in the lawe nat in conscience that in suche case all the remedies that the partie myght fyrste haue had for the rent at the comon lawe by distres assyse or otherwyse are determined / and the partie that ought to
is nat partie to the dede and therfore it can nat be taken by waye of graunte of the reuercion / for no graūte can be made but to hym that is partie to the dede excepte it be by way of remayndre / and therfore if a mā make a lease for terme of life / and after the lessour graunt to a staūger that the tenaūt for terme of lyfe shal haue the lande to him and to his heyres / that graunt is voyde if it be made onely of his mere mocion without recompence And in lyke wyse if a mā make a lease for terme of lyfe after graūt the reuerciō to one for terme of lyfe / the remayndre ouer in fee / and the renaūt atturneth to hym that hath the state for terme of lyfe onely / intēdyng that he onely shulde haue aduauntage of the graūte his entēt is voyde / and both shall take aduauntage therof / and the atturnament shal be taken good accordynge to the graunte / and so in this case though the feoffoure entended that if the rente were nat payed that the straūger shulde entre / yet bycause the lawe gyuethe hym no entre in that case that intent is voyde / and the same staunger shall neyther entre into the lande by lawe nor conscience ¶ Doctour What shal than be done with the lande as thou thynkest after the cōdicion broken ¶ Student I thynke that the feoffour in this case may lawfully reentre / for whan the feoffemēt was made vpon condicion that the feoffe shulde pay a rent to a straunger in tho wordes is concluded in the lawe that if the rent were nat payed to the straunger that the feoffoure shulde reentre for tho wordes vpon condicion / implie so moche in the lawe thoughe it be expressed And than whā the feoffour went ferther and sayd that if the rēt were nat payed that the straunger shulde entre / those wordes were voyde in the lawe / and so the effecte of the dede stode vpon the fyrst wordes wherby the feoffour maye reentre in lawe and conscience but if the fyrst wordes had nat ben cōdicionall I wolde haue holden it the greater doute ¶ Doctour I praye the put the case therof in certayne with suche wordes as be nat condicionall that I may the better perceyue what thou meanest therin ⧠The .xix. question of the studente The .xxi. Chapitre SSudent A man maketh a feoffement by dede indetted / and by the same dede it is agreed that the feffe shal pay to A.B. to his heyres a certayne rēt yerely at certayn dayes / that if he pay nat the rēt thā it is agreed that A.B. or his heyres shall entre into the lande / and after the feoffe payeth nat the rent / than the question is who ought in cōscience to haue this lande and rent ¶ Doctoure Or we argue what conscience wyll let vs knowe fyrste what the lawe wyll therin ¶ Student I thynke that by the lawe neyther the feoffoure ne yet the sayd A.B. shall neuer entre into the lande in this case for nat paymente of the rent for there is no reentre in this case gyuen to the feoffour for nat payment of the rent as there is in the case next byfore / and the entre that is gyuen to the sayd A. B. for nat paymēt therof is voyde in the lawe bycause he is estraūge to the dede as it appereth also in the next Chapitre byfore And therfore me thynketh that the greatest doute in this case is to se to what vse this feoffement shal be taken ¶ Doctour There appereth in this case as thou haste put it no consideracion ne recompence gyuen to the feoffour whervpon any vse may be deriuied / if the case be so in dede that the feoffour declared neuer his mynde therin / to what vse shall it thā be takē ¶ Stu. I thynke it shal be taken to be to the vse of the feoffe as longe as he payeth the rente / for there is no reason why the feoffe shulde be busied with paymēt of the rent hauyng nothynge for his labour / ne it may nat cōueniently be taken that the intent of the feoffour was so / excepte he expressed it / thā it must be taken that he intended to recōpense the feffe for the busynes that he shuld haue in the payment ouer / and by the wordes folowyng his intent appereth to be so as me thynketh / for if the rēt were nat payed he wolde that A.B. shulde entre / and so it semeth he entended nat to haue any vse hym selfe and thus as me semeth this case shulde varye fro the comō case of vses / that is to saye / if a man seased of lande make a feoffement therof and it apperethe nat to what vse the feoffement was made ne it is nat vpon any bargayne or other recompence than it shal be taken to be to the vse of the feoffoure / excepte the contrarie can be proued by some bargaine or other lyke / or that his intēt at the tyme of the lyuerey of season was expressed that it shulde be to the vse of the feoffe or of some other / than it shall go accordynge to his entent / but in this case me thynketh it shal be taken that his entent was that it shulde fyrst be to the vse of the feoffe for the cause byfore reherced excepte the contrarie can be proued / so the knowlege of the intēt of the feoffour is the greatest certaynte for knowelege of the vse in this case as me semeth / but whā the feoffour goeth ferther and sayeth that if the rent be nat payed thā the sayd A.B. shulde entre into the lande / thā it appereth that his entent was that the rente shulde cease / and that A. B. shulde entre into the lande / and thoughe he maye nat by those wordes entre into the lande after the rules of the lawe / and to haue freholde / yet those wordes seme to be sufficient to proue that the intēt of the feoffour was that he shulde haue the vse of the lande / for sythe he had the rente to his owne vse and nat to the vse of the feoffoure so it semeth he shal haue the vse of the lande that is assigned to hym for nat paymente of the rente ¶ Doctour But I am somwhat in doute whether he had the rente to his owne vse / for the intēt of the feoffour myght be that he shuld pay the rēt for hī to some other or some other vse myght be appoynted therof by the feoffour ¶ Student If suche an entēt can be proued than that intent must be obserued / but we be ī the case to wete to what vse it shal be taken if the entēt of the feoffour can nat be proued / thā me thynketh it can nat be otherwyse takē but that it shal be to the vse of hī to whome it shulde be payed / for though it be called a rent yet
one is this Two ioynttenauntes be of goodes the one of them by his laste wyl bequeteth all his parte to a strauÌ„ger and maketh the other ioynttenaunt his executor and dyeth / if he to whome the bequest is made sue the other iointtenaunt / vpon the legacie as executour c. vpoÌ„ this matter shewed / the iuges of the spirituall lawe are bounden / to iuge the wyll to be voyde / by cause it is voyde by the lawe of the realme wherby the iointtenaunt hath right to the hole goodes by the title of the suruiuour is iuged to haue the goodes as by the fyrst gyfte whiche is before the tytle of the wyl must therfore haue pÌ„ferremeÌ„t as the elder title if the iuges of the spiritual courte iuge other wyse they are bouÌ„de to restitucioÌ„ by lyke reason the executours of a man that is outlawed the tyme of his dethe may dyscharge them selfe in the spirituall courte of the perfourmyng of legacyes / bycause they be chargeable to the kynge and yet there is no suche lawe of outlagary in the spirituall lawe ¶ Doctoure By occasyon of that thou haste sayde before I wolde aske of the this question If a parson of a churche alyen a porcyon of dysmes accordyng as the spirituall lawe hathe ordeyned / is nat that alienacion sufficient thoughe it haue nat the solempnities of the temporall lawe ¶ Student I am in doute therin yf the porcion be vnder the fourth parte of the value of the churche but yf it be to the value of the .iiii. parte of the churche or aboue / it is not sufficient and therfore was the wrytte of ryght of dysmes ordeyned / if iÌ„ a wrytte of ryght of dysmes it be Iuged in the kynges court for the patrone of the successoure of hiÌ„ that alieneth bycause the alyenacyon was nat made accordynge to the comon lawe / than the Iuges of the spirituall lawe are bounden to gyue theyr iugement accordyng to the iugemeÌ„t gyueÌ„ in the kyngs court And in lyke wyse if a parson of a churche agre to take a pencyoÌ„ for the tythe of a mylle / yf the pencyoÌ„ be to the fourthe parte of the value of the churche or aboue / than it muste be alyened after the solempnytyes of the kynges lawes as landes tenementes muste / or elles the patrone of the successoure of hym that alyened maye brynge a wryt of ryght of dysmes recouer in the kynges courte / than the Iuges of the spirituall courte are bounden to gyue IugemeÌ„t in the spiritual courte accordyngly as is aforesayd ¶ Doccour I haue herde say that a wryt of ryghte of dysmes is gyueÌ„ by the statute of westmynster the seconde that speketh onely of dysmes and not of pencion ¶ Student where a parson of a churche is wrongfully deforcyd of his dysmes and is lette by an Indicauit to aske his dysmes in the spirituall court than his patroÌ„ may haue a wrytte of ryght of dysmâ— by the statute that thou spekest of / for there lay none at the comon lawe for the person had there good ryght thoughe he were let by the iÌ„dicauit to sue for his right But whan the persoÌ„ had no remedy at the spirituall lawe there a wrytte of ryght of dismes lay for the patroÌ„ by the comoÌ„ lawe as well of pencyons as of dysmes / some saye that in suche case it lay of lesse than of the fourthe parte by the comoÌ„ lawe but that I passe ouer And the reason why it lay at the comoÌ„ lawe if the dysme or pencyoÌ„s were aboue the fourth parte c. was this by the spirituall lawe the alienacyoÌ„ of the persoÌ„ with assent of the bisshope and of the chapitre shall barre the successour without assente of the patrone / and so the patrone might lese his patronage he nat assentinge therto for hys encuÌ„bent myght haue no remedy but iÌ„ the spirituall court and there he was barred wherfore the patrone iÌ„ that case shall haue his remedy by the comon lawe where the assent of the ordinarie and chapitre without the patrone shall nat serue as is sayd before But where the encumbent had good ryght by the spirituall lawe there lay no remedy for the patrone by the comoÌ„ lawe though the encumbeÌ„t were let by an indicauit / for that cause was the sayde statute made and it lyeth as wel by the equitie for offeringê and pensions as for dismes Than farther I wolde thynke that where the spirituall court may holde ple of a temporall thiÌ„ge that they must iuge after the temporall lawe / that ygnoraunce shall not excuse them in that case for by takynge of theyr office they haue bouÌ„de them selfe to haue knowlege of as moch as beloÌ„geth to ther offyce as al Iuges be spiritual teÌ„poral But if it were in argument in this case whether the eldest soÌ„ne myght be a preste by cause he is a bastarde iÌ„ the teÌ„poral lawe that shuld be iuged after the spiritual lawe for the matter is spiritual ¶ Doct. yet notwithstandynge all the reasons that thou haste made I caÌ„ not se howe the iuges of the spirituall lawe shall be compelled to take notice of the temporall lawe seynge that the most parte of it is in the frenche tonge for it were harde that euery spirituall iuge shulde be compelled to lerne that toÌ„ge But if the lawe of the realme were set iÌ„ suche order that they that iÌ„tende to studye the lawe canoÌ„ might first haue a syght of the lawe of the realme as they haue now of the lawe ciuil that some bokê treatises were made of cases of coÌ„scieÌ„ce coÌ„cernynge those two lawes as there be nowe coÌ„cernynge the lawe ciuil and the lawe canoÌ„ I wolde asseÌ„t that it were ryght expedyeÌ„t thaÌ„ reasoÌ„ myght serue the better that they shulde be compelled to take notyce of the lawe of the realme as they be nowe bounden in suche countreys as the lawe ciuill is vsed to take notyce of that lawe ¶ Student Me thynketh thyne oppinion is ryght good and reasonable but tyll suche an order be taken they are bouÌ„de as I suppose to enquere of theym that be lerned iÌ„ the comon lawe what the lawe is / and so to gyue theyr iugement accordyng / if they wyll kepe them selfe fro offence of coÌ„scyence / and for as moche as thou haste well satisfied my mynde in all these questions before I praye the nowe that I maye soÌ„what fele thy mynde in dyuers artycles that be wryten in dyuers bokes for the orderynge of coÌ„scyence vpon the lawe canon and ciuill / for me thynketh that there be dyuers conclusyoÌ„s put in dyuers bokes / as iÌ„ the suÌ„mes callyd Summa angelica / and Summa rosella / and dyuers other for the good order of coÌ„scieÌ„ce that be agaynst the lawe of this realme rather blynde conscience thaÌ„ to gyue any lyght vnto it ¶ Docto. I pray the shewe me some of those cases
that he shall nat call executours to accoÌ„pte ¶ Student I am somwhat in dout theriÌ„ / but it semeth that if it myght be enacted by statute that all willes shulde be voyde as is aforesayde that thaÌ„ it myght be enacted that no man shulde haue auctoritie to call none to accompte vpon suche willes but suche as the statute shall therin appoiÌ„te / for he that may do the more may do the lesse / nat withstandynge I wyll nothynge speke determinately in that poynt at this tyme / ne I meane nat that it were good for to make a statute that all wylles shulde be voyde / for I thynke them righte expedient / but myne inteÌ„t is to proue that the comon lawe may ordeyne the tyme of the full age / as well in wylles of temporal thynges as otherwyse / also that no will shal be made And if it may so do than moche stronger it belongeth to the kynges lawes to interpretate willes concernyng teÌ„porall thynges as well whan they come iÌ„ argument before his Iuges as whaÌ„ they come in argument before spirituall Iuges that they ought nat to be iuged by seuerall lawes that is to saye by the spiritual iuges in one maner by the kinges iuges in another maner ☞ If a man be conuicte of heresye before the ordinari / whether his goodes be forfayth The .xxix. Chapitre DOctoure It appereth in Summa angelica in the title Donatio prima the .xiii. article / that he that is an heretyke may nat make executoures / for in the lawe his goodes be forfet / what is the lawe of the realme therin ¶ Student If a man be conuicte of heresie and abiure he hath forfet no goodes / but if he be conuicte of heresye be deliuered to laye meÌ„nes haÌ„des than hath he forfet all his goodes that he hath at the tyme that he is deliuered to them / thoughe he be nat put in execucion for the heresye / but his landes he shall nat forfet excepte he be dede for the heresye / than he shall forfet theÌ„ to the lordes of the fee / as in case of felonie excepte they be holden of the ordinarie / for thaÌ„ the kynge shal haue the forfeture / as it appereth by a statute made the seconde yere of kynge Henry the .v. the .vii. Chapitre ¶ Doctour Me thynket that as it belongeth onely to the churche to determine heresyes / that so it belongeth to the churche to determine what punisshemeÌ„t he shall haue for his heresye / excepte deth whiche they maye nat be iuges in / but if the churche decre that he shall therefore forfet his goodes me thiÌ„keth that they be forfet by that decre ¶ Student Nay veryly for they be teÌ„porall belonge to the iugement of the kynges court I thynke the ordinarie might haue set no fine vpon none empeched of heresye tyll it was ordeyned by the statute of Henry the .iiii. that he maye set a fyne in that case if he se cause / and than the kynge shall haue that fyne as in the sayde statute appereth ☞ Where diuers patrons be of an auousâ— the churche voydeth / the patroÌ„s varie in theyr presentementes / whether the bisshope shall haue libertye to present whiche of the encuÌ„beÌ„tes that he wyll or nat ⸫ The .xxx. Chapitre DOctoure This question is asked in SuÌ„ma rosella iÌ„ the title Patronê° the ix article there it appereth by the better oppinion that he may present whether clerke he wyll / howe be it the maker of the sayde summe / sayth that by the / rigoure of the lawe the bisshope in suche case may present a strauÌ„ger because the patroÌ„s agre nat / in the same chapitre patronus the .xv. article It is sayde that he muste be preferred that hath the moste merites and hath the moost parte of the patrons And if the nombre be egall / that than it is to coÌ„syder the merites of the patrons if they be of lyke merite / than maye the bisshop coÌ„mauÌ„de them to agre to present agayne And if they can nat yet agre than the libertie to present is gyueÌ„ to the bisshop to take whiche he wyll / if he may nat yet present without greate trouble than shall the bisshop order the churche in the beste maner he can / if he can nat order it / than shal he suspende the churche take awaye the relikes / to the rebuke of the patroÌ„s / if they will nat be so ordered than muste he aske helpe of the temporalitie / in the .xv. article of the sayde title Patronê° / It is asked whether it be expedient in suche case that the more parte of the patroÌ„s agre hauyng respecte to all the patrons / or that it suffise to haue the more parte in coÌ„parison of the lesse parte as thus There be .iiii. patrons two present one clerke the thyrde presenteth another the fourth another / he that is presented by .ii. hath nat the more parte in comparison of all patrons for they be egall / but he hath the more parte hauynge respect to the other presentemeÌ„tes / to this question it is answered that other the presentement is made of them that be of colage there is requisite the more parte hauiÌ„ge respecte to all the colage / or elles euery maÌ„ presenteth for hym selfe as comoÌ„ly do laye men that haue the patronage of theyr patrimony / than it suffiseth to haue the more parte in respecte of the other partes / doth nat the law of EnglaÌ„de agre to these diuersities ¶ StudeÌ„t No veryly ¶ Doctour What order than shal be takeÌ„ in the lawe of Englande if the patrons varie in theyr presentementes ¶ Student After the lawes of Englande this order shal be taken / if they be ioyntenauÌ„tes or tenauntes in comon of the patronage / they vary in presentemente the ordinary is nat bounden to admitte none of theyr clerkes nether the more parte nor the lesse / if the vi monethes passe or they agre theÌ„ he may present by the laps But he may nat preseÌ„t within the .vi. monethes / for if he do they maye agre brynge a Quare impedit agaynste hym / remoue his clerke / so the ordinarie shal be as distourboure And if the patrons haue the patronage by disceÌ„te as coperceners than is the ordinarie bounde to admitte the clerke of the eldest syster for the eldest shall haue the preferment in the lawe if she wyll / than at the nexte auoydaunce the nexte syster shal present so by turne one syster after another tyll all the systers or theyr heyres haue presented / and than the eldest syster shall begyn agayne / this is called a presentynge by turne / it holdeth alway betwene coperceners of an aduouson / excepte they agre to preseÌ„t togyder / or that they agre by coÌ„posicion to presente in some other maner / if they do so that agrement muste staÌ„de
the law that if a Bisshope be vouched to warrātie the tenaunt byndeth hī to the warrātye by reason of a lease made to hym by the Bisshope by the deane the chapitre yelding a rente / that in that case the Bisshoppe may nat disclayme in that reuercion without the assent of the deane chapitre But yet if a reuercion were graūted to a deane a chapitre the deane refuse / the graunt is voyde / so it appereth that a deane may refuse to take a gyfte or graunte of landes or goodes or of a reuercion made to hym to the chapitre that yet he maye nat disagre to a remaīdre or deuise / the diuersite is because the remayndre deuise be caste vpon hym without any assent / wherunto nether the deane nor the chapitre by them selfe maye in no wyse disagre without the assent of the other / but a gifte or graūt is nat good to them without they bothe assēt in suche giftes as I suppose an Infaunt may disagre as well as one of full age / but if a woman couert disagre to a gifte the husbande agre that gyfte is good ¶ Doctoure what if the landes in that case of a man his wyfe be charged with damages or be charged with more rent than the lande is worthe / the husbande dye shall the wyfe be charged to the damages or to the rent ¶ Studēt I thynke nay if the wyfe refuse the occupacion of the grounde after her husbande deth / I thynke the same lawe to be if a lease be made to the husbande to the wyfe yelding a greater rent thā the lande is worth that the wyfe after the husbandes dethe maye refuse the lease to saue her fro the payment of the rente / so may the successour of an Abbot ¶ Docto. And if the husbande in that case ouerliue the wyfe than make his executours and dye / whether may his executours in lykewyse refuse the lease ¶ Student If they haue goodes sufficient of theyr testatoure to pay the rente I thynke they may nat refuse it / but if they haue no goodes sufficient of theyr testatours to pay the rente to the ende of the terme / I thynke if they relinquisshe the occupacion they may by special pleedynge discharge them selfe of the rent and the lease / and if they do nat they may lightly charge them selfe of theyr owne goodes And if a lease be made for terme of lyfe the remayndre to an Abbot for terme of the lyfe of Iohan at style / reseruynge a greater rente than the lande is worthe / and after the tenaunte for terme of lyfe dyeth the Abbot may refuse the remayndre for the cause before reherced / and in case that the Abbot assent to the remaindre wherby he is charged to the rēt durynge the tyme that is Abbot / after he dyeth or is deposed liuynge the sayd Iohā at style / in that case his successoure maye discharge hym selfe by refusinge the occupacion of the lande as is aforesayd But I thynke that if suche a remayndre were made to a deane / to the chapitre / the deane agre without the assent of the chapitre that in that case the deane the chapitre maye afterwarde disagre to the remayndre and that the acte of the deane without the assēt of the chapitre shall nat charge the chapitre ī that behalfe / thus it appereth though the meaninge of the sayde chapitre article in the sayde summe be / that a prelate may nat disagre vnto a legacie for hurtīge of the house / yet he may after the lawes of the realme disagre thereto where it shulde hurte his house And if in a Precipe quod reddat there be but one tenaunt be he spirituall or temporall / he refuse by waye of disclaymoure in suche case where he maye disclayme by the lawe / there the lande shal veste in the demaundaunt / if there be two tenauntes than it shall veste in his felowe / if he wyll take the hole tenaūcie vpon him or els it shall veste in the demaundaunte But if an Abbot or a laye man refuse the takynge of the profites / shewe a speciall cause why it shulde hurte hym if he dydde assente be therby discharged as is sayde before / In whome the lande shall than veste it is more doute whereof I wyll no ferther speke at this tyme. And thus it appereth by diuerse of the cases that be put in this chapitre that he that is ignoraunt in the lawe of the realme / shall lacke the true iugement of conscience in many cases / For in many of these cases that that maye be done therein by the lawe muste also be obserued in conscience c̄ ☞ Whether a gyfte made vnder a condicion be voyde if the souerayne onely breke the condicion ⸫ The .xxxiiii. Chapitre SLudent In Sūma rosella in the title alienacio / the .xii. article is asked this question whether a gyfte made vnder a certayne forme may be auoyded or reuoked because the prelate or souereyne onely dyd breke the forme / it is there answered that it may nat for that the dede of the prelate onely ought nat to hurte the churche / if those wordes vnder a maner be vnderstande of a gyfte vpon condicion as they seme to be / than the sayd solucion holdeth nat in this realme nether in lawe nor consciēce ¶ Doctoure What is than the law of Englande if a man enfeffe an Abbot by dede intented vpon condicion that if the Abbot paye nat to the feffoure a certayne some of money at suche a daye / that than it shal be lawfull to the feoffour to reentre / at that day the Abbot fayleth of his paymēt may the feoffer lawfully reentre put out the Abbot ¶ Student ye veryly for he had no right to the lande but by the gyfte of the feffour his gyfte was condicionell therfore if the condicion be broken it is lawfull by the lawe of Englāde for the feffoure to reentre to take his lande agayn to holde it as in his fyrst estate by which reentre after the lawes of the realme he disproueth the fyrste lyuerey of season al the meane actes done betwene the fyrst feffement the reētre / it forceth litle in the lawe in whome the defaute be that the cōdicion was nat performed whether in the Abbot or in his couēt or ī bothe / or in any other persone what so euer he be excepte it be in the feffoure hīselfe And it is great diuersitie betwene a clere gyfte made to an Abbot without cōdiciō / where it is made with cōdictō / for whan it is made without cōdiciō the acte of the Abbot onely shal nat by the comō lawe disherite the house but it be in very fewe cases / but yet vpon diuers statutes the sufferaūce of the Abbot
onely maye disherite the house as by his cesser / or by leuieng of a crosse vpoÌ„ a house agaiÌ„st the statute therof made / in whiche case the house therby shall lese the laÌ„de / some say that by the comon lawe vpon his disclaymour in auourie a writ of righte of disclamour lieth / but if the gyfte be vpon condicion it standeth nether with law nor coÌ„scieÌ„ce that the Abbot shulde haue any more perfite or sure estate than was gyuen vnto hiÌ„ / therfore as the sayd estate was made to the house vpoÌ„ coÌ„dicioÌ„ so that estate may he auoyded for nat performyng of the coÌ„dicion / I thynke verily that this that I haue sayd is to beholdeÌ„ in this realme bothe in lawe conscience / that the decrees of the churche to the contrari bynde nat in thys case But if laÌ„des be gyuen to an Abbot to his coueÌ„t to the inteÌ„t to fynde a laÌ„pe / or to gyue certayne almes to poore meÌ„ / though the inteÌ„t be nat in those cases fulfilled / yet the feoffer nor hê heyres may nat reeÌ„tre for he reserued no reentre by expresse wordes / ne in the wordes whaÌ„ he sayth the entente to fynde a lampe or to gyue almes cÌ„ Is implyed no reentre / ne the feoffoure nor his heyres shall haue no remedye in suche cases / onelesse it be within the case of the statute of Westmynster the secoÌ„de that gyueth the Cessauâ—t de cantaria ☞ Whether a couenauÌ„t made vpoÌ„ a gyfte to the churche that it shall nat be aliened be good The .xxxv. Chapitre STudent In the sayde summe called Summa rosella in the sayde title alienacio / the .xiii. article is asked thê question / whether a couenaunt made vpon a gyft to the churche that it shall nat be aliened be good And the same question is moued agayne in the sayd summe called rosella / in the title condicio the fyrst article in Summa angelica / in the title Donatio prima / the .li. .lii. articles / the inteÌ„te of the question there is whether nat withstandynge that the condicion be good to some alienacions whether that yet it be good to restrayne alienacions for the redemption of them that be in captiuite vnder the infideles or for the greater aduauntage to the house / though the better opinioÌ„ be there that the condicion may nat be broken for redempcion of them that be in captiuite yet it is in maner a hole opinioÌ„ that it may be solde for the greater aduauntage to the house / for it is sayd there that it maye nat be taken but that the intente of the gyuer was so / therfore they calle the condicion that prohibiteth it to be solde condicio turpis that is to saye / a vyle condicion / wherfore they regarde it nat but verilie as I take it if a condicion may restrayne any maner of alienacion than it shall as well restrayne alienacions for the two causes before reherced as for any other causes / and thoughe me thynketh that that condicion is good after the lawes of the realme that vpon giftes to the church restrayneth alienacions yet I shal touche one reason that is made to the coÌ„trary / that is this There is a clere grounde in the lawe that if a feoffement be made to a comon person in fee vpon condicion that the feoffe shal nat alieÌ„ to no man that that condicion is voyde because it is contrary to the estate of a fee simple to bynde hym that hath that estate that he shulde nat aliene if he liste / some say that an Abbot that hath lande to hym to his successours hath as hygh as perfite a fee simple as hath a laye maÌ„ that hath lande to hym to his heyres / and therfore they say that it is as well agaynst the law of the realme to prohibit that the Abbot shall nat alien as it is to prohibit a lay maÌ„ therof / though it be therein true as they say as to the hyghnes of the estate yet me thynketh there is great diuersite betwene the cases concernyng theyr alienacioÌ„s / for whan landes be gyuen in fee simple to a comon person the inteÌ„t of the lawe is that the feoffe shall haue power to aliene / if he do aliene it is nat agaynst the inteÌ„t of the lawe ne yet agaynst the inteÌ„t of the feoffer / but whan landes be gyuen to an Abbot to his successours the intent of the lawe is also of the gyuer as it is to presume that it shulde remayne in the house for euer / therfore it is called mortmayne / that is to saye a ded haÌ„de as who saythe that it shall abyde there alway as a thynge ded to the house And therfore as I suppose the lawe will suffre that coÌ„dicioÌ„ to be good that is made to restrayne that suche mortmayne shulde nat be aliened that yet it may ê“hibit the same coÌ„dicion to be made vpon a feoffemeÌ„t made in fee simple to a maÌ„ to his heyres for that is the moste hyghe / the moste free the moste purest state that is in the law But the lawe suffreth suche a condicioÌ„ he made vpon a gyfte in tayse because the statute prohibiteth that no altenacion shulde be made therof And than as the law suffereth suche a condicion vpoÌ„ a gyfte in mort mayne / that is to saye / that it shall nat be aliened / to be good / than it iugeth the condicioÌ„ also accordyng to the wordes / that is to say / if the coÌ„dicion be generall that they shall aliene to no man as this case is that it shal be taken generaly accordynge to the wordes / it shall nat be takeÌ„ that the inteÌ„t of the gyuer was otherwyse thaÌ„ he expressed in his gift though percase if he were alyue hym selfe the questioÌ„ where asked hiÌ„ whether he wold be coÌ„teÌ„ted it shuld be alieued for the sayd two causes or nat / he wolde say ye / but whaÌ„ he is ded no maÌ„ hath authoritie to iÌ„terpretate his gyft otherwise thaÌ„ the law suffereth / ne otherwyse thaÌ„ the wordes of the gift be And if the coÌ„dicioÌ„ be special that is to say / that the laÌ„de shall nat be aliened to suche a maÌ„ or such a maÌ„ / thaÌ„ the coÌ„dicioÌ„ shal be takeÌ„ accordyng to the wordes / thaÌ„ they may be aliened as for that condicioÌ„ to any other but to them to whome it is expresselie prohibite that the lande shuld nat be aliened to And if the laÌ„des in that case be aliened to one that is nat excepte in the condicion / than he may aliene the lande to hym that is fyrste excepted withoute brekynge of the condicion / for condicions be taken straytely in the lawe without equitie And thus me thynketh that because the sayde condicion is generall restreyneth all alienacions / that it may nat be aliened nether by the lawe of the realme
custome of some contreys where the heyres shal haue heyre lomes Or where the chyldren / the dettes legacis payde / shall haue a reasonable parte of the goodes after the custome of the countrey ¶ Addition ⧠If a man be owtlawed of felony or be attaynted for murdre or felony or that is an ascismus maye be slayne by euery straungeour ⸫ The .xli. Chapitre DOctour It appereth in the sayde suÌ„me called Summa angelica in the .xxi. chapitre in the title of Ascismus the .2 Paragraf that he is an ascismus that will slee men for money at the instaunce of euery man that will moue hym to it / suche man may lawfully be slayn nat onely by the Iuge but by euery priuate persone But it is sayde there in the .4 Paragrafe that he muste fyrst be iuged by the law as an ascismê° or he may be slayne or his goodes seased And it is sayde ferther there in the .2 Paragraf that also in conscience suche an ascismus may be slayne if it be done through a zele of iustice and elles nat Is nat the lawe of the realme lykewise of meÌ„ outlawed / abiured / or iuged for felony ¶ Student In the law of the realme there is no suche lawe that a man shal be adiuged as an ascismus / ne if a man be in full purpose for a certayne suÌ„me of money that he hath receyued to slee a man yet it is no felony ne murdre in the law tyll he hath done the acte for the inteÌ„t in felony nor murdre is nat punisshable by the comoÌ„ law of the realme though it be dedly syn afore god / but iÌ„ treasoÌ„ or iÌ„ som other ê‘ticuler cases by statute the iÌ„teÌ„t may be punisshed And though a man in suche case kyll a man for money yet he shall nat be attaynted that he is an ascismus For as it is sayde before there is no suche terme of ascismus in the law of the realme but he shall in suche case be arrayned vpon the murdre And if he confesse it or plede that he is nat gylty is fouÌ„de gylty by .xii. men he shall haue iugemente of lyfe of membre / shall forfeyte his landes goodes And lyke law is if in appele brought of the murdre he stande dombe wyll nat answere to the murdre he shal be attaynted of the murdre shall forfeyt lyfe landes / goodes / but if he arrayned of the murdre vpon an InditemeÌ„t at the kynges sute there vpon standeth dombe wyll nat answere there he shal nat be attainted of the murdre / but he shall haue payne forte dure that is to saye he shal be pressed to dothe he shall there forfayte his goodes nat his laÌ„des But in none of these cases that is to saye though a maÌ„ be outlawed for murdre or felony / or be abiured / or that he be otherwyse attaiÌ„ted yet it is nat lawfull for no man to murdre hym or slee hym ne to put hym in execucion but by auctoritie of the kynges lawes In so moche that if a maÌ„ be adiuged to haue payne forte and dure / the officer by hedeth hym / or on the contrary wyse putteth hym to payne forte dure where he shulde byhede hym he offendeth the lawe ⧠And if an officer whiche hath auctoritie to put a man to dethe maye nat put hiÌ„ to deth but accordynge to the iugemente than me thynket it shuld folowe that more stronger a straunger may nat put suche a man to dethe of his owne auctoritie without coÌ„maundement of the lawe ⧠But if the iugement be that he shal be hanged in chaynes / the officer hangeth hym in other thynges nat in chaynes I suppose he is nat gylty of his dethe / but some say he shall there make a fyne to the kynge bycause he hathe nat folowed the wordes of the iugement ⧠Also if a man that is no officer wolde a rest a man that is outlawed / abiured / or attaynted of murdre or felony as is aforesayd / he disobeyeth the arrest / by reason of that disobedience he is slayn I suppose the other shall nat be empeched for hys dethe / for it is lawfull vnto euery man to take suche persones to brynge theÌ„ forthe that they may be ordered accordyng to the lawe But if a capias be directed vnto the Sheryfe to take a man in an accion of dette or trespas there no man maye take that man but he haue auctoritie from the Sheryfe And if any man attempte of hys owne auctorite to take hym he resisteth / in that resistinge is slayne he that wolde haue taken hym is gylty of his dethe ¶ Addition ⧠Whether a man shal be bouÌ„den by that acte or offence of his seruaunt or officer ⸫ The .xlii. Chapitre STudent In the sayd suÌ„me called SuÌ„ma aÌ„gelica in the title dominê° .4 Paragrafe Is asked this question / whether a maÌ„ shal be charged for his housholde And it is sayde there that he shall whaÌ„ the housholde offendeth in an office or ministerie that the mayster is the chyefe officer of he hath the werke the profite of the housholde For it shal be his defaut that he wolde chuse suche seruaunte / for he ought to appoynte honeste persones / but it is sayde there that that is to be vnderstande ciuilly nat criminally / wherby as is sayde there he that is a gouernour is bounde for the offeÌ„ce of his officers / that the same is to be holdeÌ„ of a Captayne / that he shal be bouÌ„de for the offence of his squiers And an hoste for his ghest suche other Neuerthelesse it is sayd there that certayne doctours there reherced / therto that if the office be an open or a publyke office / as an office of power or other lyke It sufficeth to brynge forthe hym that offended But it is otherwyse If it be nat a publike office but an hoste or a tauerner or otherlyke But if the housholde offended nat in the office the lorde is nat bounde as to the law but in conscieÌ„ce he is bounde if he were in defaut by nat correctinge them / for he is bounde to correcte them bothe by worde and example / and if he fynde any incorrigible he is bouÌ„de to put hym awaye excepte that he hath presumpcious that if he do so he wyll be the worse / and than he maye do that he thynketh beste / and he is escused and elles nat For to suche persons it is sayde Error qui noÌ„ resistitur approbatur that is to saye An errour that is resisted is approued And thoughe diuers of the saynges before reherced agre with the lawe of the realme / yet all do nat so / also tho that do are to be obserued by auctoritie of the lawe of the realme nat by the auctorite alledged in the sayd paragrafe And therfore I enteÌ„de to treate soÌ„what where
the mayster shal be charged by his seruaÌ„te or deputie / or by them that be vnder hym in any office / where nat / than I enteÌ„de to touche some other thynges where the mayster after the lawes of the realme shal be charged by the acte of his seruaunte in other cases nat concernynge offices where nat ⧠Fyrst if a man be committed to warde vpon arrerages of accompte the keper of the prysoÌ„ suffereth hym to go at large thaÌ„ an accioÌ„ of det shall lye agaynst hym And if he be nat sufficient than it lieth agaynst hym that committed the pryson vnto him that is by reason of the statute of West in the .ii. the .xi. Chapitre ⧠Also if Baylyfes of frauncheses that haue returne of writtes make a false returne the partie shall haue auerment against it as well of to litle yssues as of other thynges as well as he shall haue agaynste the Sheryfe / but all the punisshemente shal be onely vpon the bayly nat vpon the lorde of the fraunchese / that dothe appere by the statute made in the fyrste yere of kynge Edwarde the .iii. the .v. chapitre But if an vnder Sheryfe make a returne where vpoÌ„ the sheryfe shal be amercied there the hyghe sheryfe shal be amercied for the returne is made expressely in his name But if it be a false returne where vpon an accion of disceyt lieth in that case it may be brought agaynst the vnder sheryfe / se therof the statute that is called StatutuÌ„ de male returnantibus breuia ⧠Also if the kynges butteler make deputies he shall auswere for his deputies as for hym selfe As appereth in the statute made in the .xxv. yere of kynge Edwarde the thyrde De prodicionibus the .xxi. Chapitre ⧠Also in the statute that is called statutum scaccaru it is enacted amonge other thynges that no officer of the eschequer shall put any clerke vnder hym but suche as he will answere for And for as moche as the statute is general it semeth that he shall answere as well for an vntrouthe in any suche clerke as for an ouer sighte ⧠Also in the .xiiii. yere of kynge Edwarde the thyrde the .ix. chapitre it is enacted that all Gayles shal be adioyned agayne to the shyres / that the sheryfe shall haue the kepynge of theÌ„ / that the sheryfe shall make suche vnder gardeyns for the which they wil answere And neuerthelesse I suppose that if there be an escape by defaute of the Gayler that the kynge may charge the Gayler if he w l. But it is no dout but he may charge the sheryte by reason of his statute it he will / But if it be a wilfull escape in the Gayler whiche is felonye in him the sheryfe shall nat be bouÌ„de to answere to that felonye ne none other but the Gayler hym selfe and they that assented to hym ⧠Also if a man haue a shyrefwyke / constableship / or bayly wyke in see / wherby he hath the kepynge of prysoners / if he lette any to repleuyn that be nat repleuisshable thereof be attaynt / he shall lefe the office cÌ„ And if it be an vndersheryfe / constable / or baylyfe that hath the kepyng of the pryson that doeth it without knowelege of the lorde he shall haue enprysonement by iii. yeres / after shal be raunsomed at the kynges will / as appereth in the statute of WestmÌ„ the fyrst the .xv. chapitre And so it appereth that in this case he that is the lorde of the pryson is nat bounde to aunswere for the offence of them that haue the rule of the prysoÌ„ vndre hym but that they shall haue the punisshment them selfe for theyr misdemeanoure ♣ Also there is a statute made iÌ„ the .xxvii. yere of kyng Edwarde the .iii. the .xix. chapitre is called the statute of the Staple whereby it is ordeyned that no marchauÌ„t ne none other man shall nat lese theyr goodes for the trespas or forfayte of theyr seruantes / onelesse it be by commaundement of his mayster / or that the offende in the office that his mayster hath put hym in / or els that the mayster shal be bounde to answere for the dede of his seruaunte by the lawe marchaunte / as in some place it is vsed ⧠Also it is enacted in the .xiiii. yere of kyng Edwarde the .iii. the .viii. chapitre that wapentakes and hundredes that be seuered frome the counties shal be adioyned agayne vnto them / and that if the sheryfe holde theÌ„ in his owne handes that he shal put in theÌ„ suche baylyfes that haue landes sufficieÌ„t / for the whiche he wyll answere / and that if he let them to ferme that they be let to the auncient ferme / but after it is prohibited by the statute of the .xxiii. yere of kynge Henry the .vi. the .x. chapitre That no sheryfe shall let his baylywykes nor wapentakes â—o ferme And so whan they be ones in the sheryfes owne handes the sheryfe putteth in baylyfes they be but as vnder baylyfes to the kyng the sheryfe the hyghe baylyfe / they in maner the sheryfes seruauÌ„tes put in onely by hym And therfore by the sayd statute of kynge Edwarde the .iiii. He shall answere for them if they offende in theyr office / but if the sheryfe let them to ferme thaÌ„ though the sheryfe offende the stature in that doynge / yet whether he shal be charged for theyr misdemeanor in the office or nat is a great doubte to some men / for they saye that this statute is onely to be vnderstaÌ„de where the baylywykes be in the sheryfes handes but here they be nat so / ne the baylyfes be nat his seruaÌ„tes but his fermours And therfore they saye that if the sheryfe shal be charged for them It is by the comoÌ„ lawe nat by the statute aforesayd ⧠Also in the .ii. yere of kyng Henry the .vi. the .xiiii. chapitre it is enacted that officers by patente in euery court of the kyng that by vertu of theyr office haue power to make clerkes iÌ„ the sayd courtes shal be charged sworne to make suche clerkes vnder theÌ„ for whome they will answere ⧠Also the Hospitelers Templers be prohibit that they shall holde no plee that byloÌ„geth to the kynges courtes vpoÌ„ payn to yelde damages to the party greued to make raunsome to the kynge / that the superiours shall answere for theyr obedieÌ„ces as for theyr owne dede WestmÌ„ the .ii. the xliii Chapitre ⧠Also the sergeaunt of the caterye shall satisfie all the dertes / damages / an execucions that shal be recouered agaynste any that is purueyour or achatour vnder hym that offende agaynst the statute of .xxxvi of Edwarde the thyrde / or agaynste thys statute of .xxiii. of HeÌ„ry the .vi. In case that the purueyour or achatour be nat sufficieÌ„t cÌ„ And the party pleyntyfe shall haue a Scire facias agaynst
If a clerke be promoted to the title of his patrimonie after selleth his patrimonye after falleth to pouertye whether shall he haue his title therin or nat The .xliiii. Chapitre STudent In the sayd suÌ„me called Rosella in the title Clericus quartus / the xxiiii article it is asked if a clerke be promoted to the title of his patrimony whether he maye aliene it at his pleasure and whether in that alienacion the solempnite nedeth to be kepte that is to be kept in alienacioÌ„ of thynges of the churche / it is answered there that it may nat be aliened no more thaÌ„ the goodes of a spirituall benefice if it be accepted for a title expressely assigned vnto hym / so that it shulde go as in to a rhynge of the churche / except he haue after an other benefice wherof he may lyue But if it be secretely assigned to his title some agree it may be aliened / in this case by the lawes of the realme it may be lawfully aliened whether it be secretely or opeÌ„ly assigned to his title / for the ordinarie ne yet the party hym selfe after the olde customes of the realme haue no auctorite to biÌ„de any inheritaunce by aucthoritie of the spirituall lawe / therfore the lande after it is assigned accepted to be his title standeth in the same selfe case to be boughte / solde / charged / or put in execucioÌ„ as it dyd before And therfore it is somwhat to be maruayled that ordinaries will admitte suche lande for a title to the inteÌ„te that be that is promoted shulde nat fall to extreme pouerty or go openly a beggynge / without knowynge howe the comon lawe will serue therin / for of mere right all enheritauÌ„ce within this realme ought to be ordered by the kynges lawes / inheritaunce can nat be bounden in this realme but by fine or some other matter of recorde / or by feoffemeÌ„t / or suche other or at leste by a bargain that chaungeth an vse And ouer that to assigne a stare for terme of lyfe to him that hath a fee simple before is voyde in the lawes of Englande without it be by suche a matter that it worke by way of conclusioÌ„ or estapell / in this case is no suche mater of conclusion / therfore all that is done in suche case in assignynge of the sayd title is voyde Also there is no interest that a maÌ„ hath in any maner landes or tenementes for terme of lyfe / for terme of yerê / or otherwyse / but that he by the law of the realme may put away his right therein if he will And than whan this man alieneth his laÌ„de generally it were against the lawe of the realme that any interest of suche a title shuld remayne in hym agaynste his owne sale / there is no diuersite whether the assignement of the title were open or secrete / so that title is voyde to all intentes And in in lykewise if a house of religion or any other spirituall man that hath graunted a title after the custome vsed in suche titles sell all the landes goodes that they haue that sale in the lawes of EnglaÌ„de is good as agaynste that title / the byer shall neuer be put to answere to that title Also some saye that vpon the comoÌ„ titles that be made dayly in suche case that if he fall to pouertie that hath the title he is without remedy / for they be so made that at the comon lawe there is no remedye for them / if he take a sute in the spirituall court may men saye that a prohibicioÌ„ or a premunire lieth And therfore it were good for ordinaries iÌ„ suche case to counsayle with them that be lerned in the lawe of the realme to haue suche a forme deuised for makynge of suche titles / that if nede be wolde serue theÌ„ that they be made vnto / or elles lette theÌ„ be promoted without any title / to truste in god that if they serue hym as they ought to do he wyll prouide for them to haue sufficient for them to lyue vpon And beside these cases that I haue remembred before / there be many other cases put in the sayde summes for the well orderynge of conscience / that is as me thynketh are nat to be obserued in this realme neyther in lawe nor in conscience ¶ Doctour Doste thou than thynke that there was defaute in them that drewe the sayd suÌ„mes put there in suche cases suche solucions that as thou thynkest hurte conscience / rather than to gyue any light to it / specially as in this realme ¶ Sudent I thynke no defaute in them / but I thynke that they were righte well charitably occupied to take so greate payn labour as they dyd therin for the welthe of the people clerynge of theyr consciences / for they haue therby gyuen a righte greate light in conscience to all countreys where the lawe Ciuile the lawe Canon be vsed to temporall thynges But as for the lawes of this realme they knewe them nat ne they were nat bounde to know theÌ„ / if they had knowen them it wolde litell haue holpen for the countreys that they mooste specially made theyr treatices for / in this countrey also they be right necessary moche profitable to all men for suche doutes as ryse in conscience in diuers other maners nat concernyng the lawe of the realme And I meruayle greatlye that none of them that in this realme are most bounden to do that in them is to kepe the people in a right iugement in a clerenes of conscience haue done no more in tyme past to haue the lawe of the realme knoweÌ„ than they haue done / for though ignoraÌ„ce may somtyme excuse / yet the knowlege of the trouth the true iugemente is moche better / somtyme though ignorauÌ„ce excuseth in parte it excuseth nat iÌ„ all / therfore me thiÌ„keth they dyd very well if they wolde yet be callers on to haue that poynt reformed as shortly as they could And now bycause thou haste well satisfied my minde in many of these questions that I haue made I purpose for this tyme to make an ende ¶ Doctour I praye the yet shewe me or that thou make an ende mo of the cases that after thyne oppynion be set in diuers bokes for clerynge of conscience that as thou thynkest for lacke of knowynge of the lawes of the realme do rather blynde conscience than gyue a light vnto it / for if it be so than surely as thou haste sayde it wolde be reformed / for I thynke veryly the lawes of the realme iÌ„ many cases muste in this realme be obserued as well in conscieÌ„ce as in the iudiciall courtes of the realme ¶ StudeÌ„t I will with good will shewe to the shortely some other questions that be made in the sayde summe to gyue the other occasion to se therin the oppinions of the
be but fewe ī this real me that haue landes of any notable value but that they or theyr aūcestours / or some other by whome they clayme haue had parte therof by such recoueries / In so moche that lordes spirituall tēporal knyghtes / squyres ryche men / poore / monasteries / collegies / and hospitalles haue suche landes / for suche recoueries haue ben vsed of longe tyme / who may thynke therfore without great heuines that so many men shulde be bounde to restitucion / and that yet as thou sayste / no man disposeth hym to make restitucion And so I am in maner perplexed and wot nat what to saye in this case / but that yet I truste that ignoraunce maye excuse many persons in this behalfe ¶ Doctoure Ignoraunce of the dede maye excuse / but ignoraunce of the lawe excuseth nat but it be inuincible / that is to saye that they haue done that ī them is to knowe the trouthe as to councell with lerned men and to aske thē what the lawe is in that behalfe and if they answere them that they may do this or that lawfully / than they be thereby excused in conscience / but yet in mannes lawes they be nat thereby discharged / but they that haue taken vpon them to haue knowlege of the law be nat excused by ignoraunce of the lawe / ne no more are they that haue a wilfull ignoraunce that wolde rather be ignoraunt than to know the trouth And therfore they will nat dispose them to aske any councell in it / if it be of a thynge that is agaynste the lawe of god / or the lawe of reason / no man shal be excused by ignoraunce / and to there be but fewe that be excused by ignoraūce ¶ Studēt what than shall we condempne so many so no table men ¶ Doctoure We shall nat condempne them / but we shall shewe them theyr peryll ¶ Student yet I truste that theyr daunger is nat so greate that they shulde be bounde to restitucion For Iohā Gerson sayth in the sayd boke called Devintate ecclesiastica consideracione secunda / quod cōmunie error facitius That is to saye a common errour maketh a right / of whiche wordes as it semeth some trust maye be had / that though it were fully admitted that the sayd recoueries were fyrst had vpon an vnlawfull grounde and agaynste the good ordre of conscience that yet neuertheles for as moche as they haue ben vsed of longe tyme / so that they haue ben taken of diuers men that haue ben righte well lerned in maner as for a lawe / that the byers partly be excused so that they be nat bounde to restituciō And moreouer it is certeyn that that statute of westm̄ the. 2 nor none other statute made by mā cā nat be of greater vertue or strength / thā was the bonde of matrimonie that was ordayned by god And though that bonde of matrimoni was indissoluble / yet neuertheles Moyses suffred a byll of refusell to the Iewes / whiche in latine is called Libellū repudu / and so they mighte thereby forsake theyr wyfes As it appereth Deutro xxiii therefore lyke as a dispensacion was sufred agaynst that bōde / so it semeth it may be agaynst this statute ¶ Doctour as to that reason that thou haste laste made of a byll of refusell / let all purchasours of lāde here what our lorde sayth in the Gospell to the Iewes of that byll of refusell Mathei xix where he sayth thus / To the hardnes of iour hertes / Moyses suffred you to leue your wyfes / for at the begynnynge it was nat so / of whiche wordes Doctours holde commonly that thoughe suche a byll of refusell was lawfull so that they that refused theyr wyfes therby / shulde be without payne in the lawe / that yet it was neuer lawfull so that it shuld be with out synne And so likewyse it may be sayd in this case / that suche recoueries be suffred for the hardnes of the hertes of Englisshemen / whiche desyre lande possessions with so great gredynes that they cā nat be withdrawne from it neyther by the lawe of god / nor by the lawe of the realme And therefore that ryche men shulde nat take the possessions of poore mē from thē by power without coloure of title / that is to saye eyther by open disseson / or by the onely sale of the tenaunte in tayle so to holde them agaynste the expresse wordes of the statute / suche recoueryes haue ben suffred And though for theyr great multitude they maye haplye be without payne as to the lawe of the realme yet it is to feare that they be nat without offence as agaynst god / as to thy other reason that a common errour shulde make a right those wordes as me semeth be to be thus vnderstande / that a custome vsed agaynst the lawe of man shal be taken in some coūtres for lawe if the people be suffred so to continue And yet some mē call suche a custome an errour bycause that the continuance of that custome agaynst the lawe was partlye an errour in the people / for that that they wolde nat obey to the law that was made by theyr superiours to the contrarye of that custome but it is to be vnderstande that the sayd recoueries though they haue ben longe vsed may nat be taken to haue the strength of a custome / for many as well lerned as vnlerned haue alwaye spokē agaynste thē and yet do And furthermore as I haue herde say a custome or a p̄scripcion in this realme agaynste the statutes of the realme preuayle nat in the lawe ¶ Studēt though a custome in this realme preuayleth nat agaynst a statute as to the lawe / yet it semeth that it may preuayle agaynste the statute in conscience / for though ignoraunce of a statute excuseth nat in the lawe / neuertheles it may excuse in conscience / so it semeth that it may do of a custome ¶ Doctoure But it suche recoueries can nat be brought in to a lawful custome in the lawe / it semeth they maye nat be brought in to a custome in conscience / for conscience muste alway be groūded vpon some lawe in this case it can nat be grounded vpon the lawe of reason / nor vpon the lawe of god and therefore if the lawe of man serue nat / there is no groūde wherupon conscience in this case may be grounded / at the begynnynge of suche recoueries they were taken to be goood / bycause the lawe shuld warraunt them to be good and nat by reason of any custome and so if the reason of the lawe wyll nat serue in tho recoueries / the custome cā nat helpe for an euyll custome is to be put awaye And therfore me semeth that tho recoueries be nat without offence against god / thoughe haplye for theyr great multitude / and that there shulde nat be as it were a subuersion of