time and of late time in the ciuill Law is rather plain theÌ„ ponderous Vetus accipietur quod non est nouum r In l. 11. de triui leg And therefore the law of the twelue Tables they call their auncient Law and that which followeth it the new Law Å¿ l. 1. l. 3. D. de pet haered But in this sense the Law of Nations should be the auncient Law and all other humane Lawes new Lawes but auncient by the interpretation of a good Ciuilian is that cuius initij memoria non extat t l. 2. in prin de ag plu ar c. §. idem lab aut si in agr and he expoundeth this to be if there be none aliue which knoweth when it had his beginning Neither hath any heard of the beginning of the thing of those which did know it u Idem Lab. aut cum quaeritur eo A certaine time is that which hath a certaine beginning and ending An vncertaine time is directly contrary Certaine times are the yeare the day the moneth c. An vncertaine time is signifyed by these wordes before after in times past some time about such a time c. But there be diuers sortes of vncertaine times First either that which is altogether vncertaine as when such a ship shall come out of Asia for we know not whether it shall at any time come from thence or when it shall come Secondly that is said to be vncertain which though it be vncertaine whether it shall be or no yet if it be admitted to be it is certaine when it shall be as if I graunt vnto one the Corne that shall grow in such a ground for I know not whether it shall grow or no Or if I promise to be a godfather to that child which shall be borne of Martha within three daies after it be borne for I know not whether any shall be borne Or if I promise to pay such a summe of money when Titius shall be of full age here it is well knowne when Titius shall be of full age but it is vncertaine whether he shall liue till he come to full age 3. that is vncertaine which though it be certaine that it shall be yet it is vncertaine when it shall be as the howre of death The present time is so small and vnsensible that it is almost of no continuance and it is but the conioyning of that time which is past to that which is to come Time past is that which wanteth his beginning And time future is that which neuer had ending A conuenient time is after diuers sorts First either it is conuenient for some and not for all as when some causes are to be heard and not other some Secondly or profitable for all but not alwaies as the Termes whilest there are no dayes of vacation dies non iuridici Thirdly or it is profitable for all and alwaies as the Assises The second Chapter That by the Law of Nations Emperors Kinges and absolute Monarches haue full power and aucthoritie to seise the Landes and Goods of their subiects condemned for heinous offences IF any man be so straitly minded that he thinketh this prerogatiue to be too large and ample for an absolute Monarche let him think there withall that himselfe is so base minded that he cannot sufficiently iudge of the great worth and demerit of so high an estate for the name of a king importeth so great paines and charge that a kingdome seemeth not to be a sufficient or counteruailable recompence For Themistocles his choise must either be verie reasonable or exceeding desperate when he accompted it better to sinke into his graue then to ascende to a throan Wherfore not doubting of the great charge of it let vs examin the continuall custome of Nations in the executing of this power S. Lewis the French king famous in that nation for integritie iustice doubted not by publike iudgement to prescribe the farmes lordships and landes of Peter the Earle of Dreux And so were the goods and possessions of Charles Duke of Burbon seised and forfeited c Bodi lib. 5. de repub c. 3. And they haue a Law in Scotland that the goodes of persons condemned shall go wholie to the Eschequer without any deduction or reprisall to wife creditor or children The Romanes did allot their fines penalties and forfaitures to the sacrifice and seruice of their Goddes and therefore they were called Sacramenta d Festus in verb. sacrament But the Athenians did giue onely the tenth part of the goodes that were forfeited to religious vses as may appeare by the record of the condemnation of Archiptolemus and Antiphon which runneth in these tearmes Archiptolemus Antiphon vndecim-uiris capitalibus ad extremum supplicium traditi bona eorum publicata decima Mineruae data domus eorum solo aequatae And although Iustinian the Emperour did vpon some scrupulous conceit abrogate the Law of giuing the goods of condemned persons to the publike treasury and did therefore establish a Law that they should remaine to their children f Authent bona damnato de bonis dâ—mnator C. Yet diuers held this Law to be new different from the course of auncient Law-makers for euen in the most auncient times in case of high Treason in all common weales of the world such forfeitures haue been admitted for it was thought that the goodes of such persons condemned were either by fraude violence or other corrupt courses wrested from the common weale and therefore were to be restored to it againe or els because such persons hauing offended against the common weale should satisfy it that way therfore were such goodes conueyed away by Law from wife and children because for the most part they were vniustly heaped together for the aduancement of wife and children But such prerogatiues haue been in auncient time so firmely annexed to the Septer and estate roiall that by the ciuill Law such things which are properly called iura maiestatis by the common Law iura regalia cannot be seuered from the regall dignity therfore Baldus calleth them g sacra sacrorum and Cynus indiuidua h the inseparable incidents of a kingdom And by the ciuil Law such things can not be seuered from the princely Diadem neither can any man prescribe in them i Bald. con 174. lib. 3. et con 193. eo And so it is said in our Law that where the King hath any commoditie in the right of his Crowne as if he haue a Mine conteining in it gold or siluer by the graunt of the land in which it is conteined the Mine doth not passe because he hath that by his prerogatiue royall and they be two seuerall thinges and of diuers degrees k 10. Elizab. Com. Informacion pur Mines 310. per Wray And whereas the Priorie of Wenlocke was one of the auncient Priories which were of the foundation of the Crowne and the King graunted the said Priorie in ample words yet
committed in cutting down trees which grow sparsim here there in the land which is demised to farme for this is wast in the land it selfe because Arborum non est seperatum corpus afundo But this word Arbor extendeth by our Law very far for it may be affirmed of Vines which notwithstanding by reason of the tendernes of them may seeme to obteine a middle nature betwixt a tree and an hearbe Likewise to iuie though that doe rather cleaue to trees then participate the nature of trees And the name of Arbor doth extende to reedes and to willowes But the cutting of some trees that is the lopping or pruning of them may be more auaileable for their growth so that onelie their cutting downe and not their cutting only shall be adiudged to be Wast Such trees are named of vs Arbores caeduae which may grow againe either by the same stocke or by some other impes which may be grafted vpon them Such are the Cherie tree the ashe the medlar tree the oake the laurell the alder tree and the poplar tree c ff Arbo furtim caesa l. 1. et l. vitem et in gl ff de arbo ceden l. 1. §. arbo But the cutting down of such trees may well be called wast and is punishable by our Law And to open the sluces of the riuer Nilus is sharpelie punished cc C. de Nili agge non rumpen l. vnica Canonolog Our Law doth not in any of these things varie from yours Anglonomoph Of all these things vnlesse it be reedes iuy the like things which do more approch to the nature of weedes then of trees we hold in our Law that wast may be cōmitted Nomomath Well then I pray you shew what may properly be tearmed Wast by your Law Anglonomoph and for that purpose consider well of the points of the former speech of Codicgnostes who hath shewed promiscue both of what things wast may be committed and what may be said to be Wast Anglonomoph I will by your pacience seuerally conferre the parcels of his discourse with the determination of our law concerning that which may properly be said to bee waste for the other point will be thereby manifest as he hath before pronounced by their law Waste may bee committed in the decay or demolishment 3 The cōmon law agreeth with the ciuil that wast may be in the decay of an house of an house this likewise is waste by our law therefore in an action of waste 42. E. 3. the declaration was that the tenant had done wast in certain tenements demised vnto him by the predecessor of the plaintife for tearme of life and the wast was assigned to bee in a chamber a furnace and a graunge and the defendant said that there was no chamber at the time of the lease made but by the opinion of Cand. hee ought to haue said nor at any time after wherefore so hee did d 42. E. 3. 22. But the termor is not bound to repayre houses which were ruinous at the time of the lease made vnto him e 12. H. 4. fol. 5 10. H. 7. 3. 12 H. 8. 1. 7. H. 6. 40. And if all the house in such case do happen to fall saue onely the postes and the termor abateth the postes this is not waste because waste must be assigned in a house or some like tenement so it is if a house newly edified be abated which house was neuer couered ee 40. Assis pl. 22. and therefore may not properly bee said to bee a house as I take it by the ciuill law for a house according to the ciuill law doeth consist of foundation wall and couer f Spi. egeli verb. aedes domus And 38. E. 3. waste was assigned in a graunge which was worth but 4. S. and because it was of so small value that none would hold it nor maintaine it it was held to bee no waste g 38. E. 3. 7. Yet M. Fitzh citeth a case out of 34. E. 3. that if waste be done by the warden to the value of 20. pence this shal be adiudged waste and the plaintife shall recouer gg Fitz. N. B. 60. c. And the booke 14. H. 4. is that if a man cutte trees but to the value of three shillings 4. pence This shall be adiudged waste h 14. H. 4. 11. But a wall or pale which hath beene couered with thatch or timber if the tenant suffer it to be discouered this shal be said to be waste i 44. E. 3. 44. 10. H. 7. 21. 22. H. 6. B. 16. H. 7. per Fin. waste 131. But if a house become ruinous for default of some couering at the time of the death of the auncestor and after the tenant suffereth the house to be more ruinous the heire may haue an action of wast for the late ruine which happened after the death of the auncestor k 2. Mari. Br. wast 117. Neither is it sufficient in barre of a writ of waste of a house that the defendant hath built a new house in lieu of that which is fallen but the defendant must say that it is as much in length and as much in latitude as the other was or at least hee must say that it is as profitable but when a house is ruinous and decayed at the time of the lease of it made and it afterwarde falleth and the defendant buildeth a newe it is not necessarie that hee should make an other house of equall longitude or latitude l 22. H. 6. 18. And the necessitie of building a house ought to come in question as if the lessee haue great need of a stable and if no house be built vpon the land at the time of the lease the lessee may not cutte trees to make an house m 11. H. 4. 32. But if waste bee made by the kinges enemies or by tempest the tenant shall not therefore bee punished by a writte of Waste n 43. E. 3. 6. Yet in such case a speciall couenant will binde the tenant And therefore it was adiudged 15. Elizab. that whereas the termor did couenant and agree pro se executoribus to repayre and maintaine the houses and to finde principall timber which is decayed by the default of him or his executors and dyeth and the house is burnt in defaulte of the executors that a writte of couenaunt in this case woulde lye agaynst the executors and that dammages shoulde bee recouered de bonis testatoris and not condicionally if there were none such of their owne goodes and yet this happened by casualtie o 15. Eliz. 324. Dy. But the reason thereof is giuen in an other place Modus conuentio vincant legem p 28. H. 8. 19. Dy. And 29. Henrici octaui the lessee of a meadowe did couenaunt and agree to keepe and maintaine the bankes in good repaire and the saide bankes were drowned ouerflowed by high waters or sodaine floud
yet the lessee is bounde to repayre and maintayne them because of his couenaunt but according to the opinion of Fitzh and Shelley because the decay of the bankes was the acte of God he ought to haue conuenient time to repaire them q 29. H. 8. 33. Dy. 35. H. 8. 56. Dy. Now I will shew how and in what cases the cutting of wood trees is wast by our law It is cleare by our law that the tenant may cut trees for the amendment of houses 5 The tenant by the commō law may cut trees for the reparation of houses and the reparation of them but if the houses be decaied by the default of the tenant the cutting of trees to amend them is waste r 44. E. 3. 21. 44. 11. H. 4. 32. but the lessee may not in any sort cut apple trees for the amendment of houses ſ Temps E. 1. waste 122. And 7. H. 6. it is said that he shal not meddle with great timberwoode without the assent of his lessor otherwise it is of seasonable wood which is but of the age of ten yeres or therabout t 7. H. 6. 38. But the cutting of dead wood is not waste u Fitzh N. B. 59. M. And the termor hath house-wood hedge-wood and firewoode belonging to his tearme of common right and he may cut wood for that purpose x 21. H. 6. 50. But if hee cutte wood to burne where there is dead wood sufficient this is waste a 20. E. 3. waste 32. And it is not waste to cut seasonable wood which hath vsed to be cut euerie twentie yeares or within 6 The commō law agreeth with the ciuill in the cutting of Silua caedua that time b 7. H. 6. 40. 11 H. 6. 1. And the cutting of thornes is no wast because they are not fit for timber c 46. E. 3. 17. Neither is the cutting of willowes waste vnlesse they lie about the site of the mannor d 40. E. 3. 15. 10. H. 7. 2. 12. H. 8. 1. 12. E. 4. 1. And the termor may cutte vnder-woode growing vnder the great trees and the high wood but if there bee no high wood or great trees there he can not cut at all e 40. E. 3. 25. 10. H. 7. 2. And whereas Codicgnost hath said that the lopping pruning of some 7 The common law agreeth with the ciuill in tollerating the lopping of trees which may be auailable for their growth trees may be more auailable for their growth therefore the cutting of them is not wast because they may grow by the same stocke or by some other imps grafted vpon it In verie truth our lawe runneth with this streame For as I haue shewed before to cutte seasonable wood is no waste but if certaine sprowtes or braunches doe grow vpon the stocke the cutting of these sprowtes or braunches or the destroying of them is wast f 5. E. 4. 102. 9. H. 6. 42. 11. H. 6. 1. 22. H. 6. 14 And plantes which can not be conueniently sold neither beare any fruite yet because of the possibilitie of the fructifying of them if they bee cutte downe this is waste g 20. E. 3. waste 32. Nomomath Well I pray you satisfie mee in this If a man ought to keepe certaine bankes in repaire whereby the land adioyning and which he hath in farme may be better kept yeeld more profite and hee doth not repaire these bankes but suffereth the sea to ouerflow them and so to make the lande a great deale worse whether is this by your law accompted waste Anglonomophilax according as Codicgnostes hath shewed of opening the sluces of Nilus Anglonomoph By our law if such bankes be not repaired whereby the land demised that is adioyning is ouerflowed made vnapt for 1 That both by the ciuill law and common law where land is empeired by the inundation of water this is wast 3 Diuision present profite this in our lawe is accompted waste h 20. H. 6. 1. Nomomath Well now I pray you resolue me in this whether is it lawfull for the termor to digge in the land demtsed for water mines or treasure hid or this shal be accompted wast if hee doe it without the permission of the lessor Anglonomoph He that commeth to land or to any other thing by an other mans graunt or 1 That by the common law he that commeth to land by an other mans graunt ought to vse it according to the graunt demise can not vse the lande or that which is graunted further then the graunt or demise being reasonably construed will permit Therefore if a man be seised of a stagne or pond stored with fish and he sell and the fish in the pond to a straunger the grantee may not digge the land c. to make a trench because he may take the fish with nettes or other engines i Perk. tit Graunts 23. But if a man grant to me licence to make a trench from such a fountaine in his land to my mannor of Dale and that I may put a conduit-pipe in the land to conuay the water to my mannor if after the pipe bee stopped I may dig in the land to amend the pipe k 13. H. 8. 15. because that is as it were implied in the graunt but if a man plough vp meadowes demised vnto him this is waste l 20 H. 6. 1. 16. H. 7. wast 131. Fitzh N. B. 59. N. So if the termor doe alter woode into arable this is wast or arable into meadow this is wast For this is preiudiciall to the inheritance for the euidence concerning the lande serueth to proue an other thing m 29. H. 8. 35. Dy. Maleuerers C. And so it is if land bee ouerflowed for default of repayring bankes n 20. H. 6. 1. but of this I haue lately spoken and therefore will rather apply other cases to the opening and explaning the reason hereof The digging in the lande demised for claye or for 2 The digging for clay or cole in the land demised is wast by the common law stone or for coales shall bee said to bee waste o 2. H. 7. 14. 22. H. 6. 21. 9. H. 6. 42. 17. E. 3. 7. for the reason abouesaid and likewise because the soile by that meane becommeth worse p 22. H. 6. 18. according to M. Fortescues report 20. H. 6. if the particular tenant haue not kept the water from the ground so that it is made waste by the growing of rushes and other weedes this hath bin adiuged to be wast and the wordes of the writ were Quòd permisit aquam terram illam inundare 3 The suffering of the ground to become rushie or weedie by the common law is waste ita quòd deuenit iuncosa q 20. H. 6. 1. per Fortesc But 33. E. 3. the defendant iustified in a writte of waste because hee did cutte downe
an elme tree in the place where the waste was assigned and did make a ditch in that place to water cattell which went vpon that ground which was necessary because the water was very lowe and almost dryed vp in that place by that meane he deduced water out of the earth and this was adiudged a good answere r 33. E. 3. Double plea. 9 Codicg That which you haue said is to reason consonant to our law correspondent for as to your first case of the clearing or amending of the conduit-pipes c. Though it be in another mans ground this in our law is not accompted iniurious Å¿ l. 1. c. de quae duc l. 11. l. de cernimus eo ti li. 2. But wee haue a rule in our 4 That the ciuil law agreeth with the common law in suffering and to amend conduit-pipes in another mans ground lawe that if a man ought to conuey water per subterraneos meatus through certain chinkes or crauies of the earth in an other mans ground he must not doe this by a leuill of stones but with pipes of leade because the other mans grounde is by stones more annoyed and empaired t ff de contrah emp. l. si aquae duct But for the improouing of ground from worse to better is clearely permitted by our law As to turne waste grounde into arable or fennish ground into firme ground this we accompt rather a benefite to the owner of the soyle then an iniurie u c. de fund patr l. si li. 11. So it is if a wood become arable x c. quod per noual de verb. signif but to destroy any thing in an other mans ground or to digge a pitte and so to alter the forme and nature of the soyle and by that meane to make it worse is accounted of vs very iniurious but to repaire an olde building or to make some commodious addition is not wrongfull but beneficiall because Non videtur nouum opus facere sed vetus reficere a ff de noua l. 1. §. nouum et §. si quis aedificium Canonol Our lawe doth not withstand any of these assertions Nomomath Well now I pray you proceed 3. Diuision to speake of the penaltie which hee is to suffer by your lawes that committeth waste Codicgn By our Law he that in such case 1. The punishment of wast by the Ciuill Law will denie the wrong done shall be punished with double damages But if he iustifie and it be found against him with single b ff de insti l. 1. §. 1. But he that doth breake the sluces of Nilus so that verie great iniurie is done and to verie manie he is burnt in the same place where the fault was committed in a fire of the height of twelue cubites and his goodes and landes are confiscated because it is crimen quasi laesae Maiestatis c C. de agge Ni non rump l. vâ— â—â— Canonol Our Law in this doth not gainsay you Anglonomoph By an action of Wast at our 2. The punishment of wast by the common Law Law the plaintife if it be found for him shall recouer treble dammages d Fitzh nat bre 58. H. and execution may be had by Elegit of the landes which the defendant had at the time of the inquest taken e 17. E. 3. 5. 18. E. 3. 38. 31. E. 3. Execut 66. and he shall recouer likewise the place wasted f Stat Glouc. cap. 6. Nomomath I will put you to no more paines in this matter but will discend to other things which haue not yet been discussed The sixt Dialogue Of Parceners NOmomath Let me know Codign whether in your Law there be any definition set downe established 1. Diuision touching Parceners as they are tearmed at the common Law and concerning the making of Particion betwixt them agreeable to the common Law Codicgn I would first that Anglonomoph should shew who be Parceners at the common Law and in what sort partition is made otherwise I should but roue at an vncertaine marke Nomomath I pray you do so Anglonomoph for that course is not to be disliked Anglonomoph Mast. Littleton a learned man 1. Two sortes of Parceners Parceners by the common Law and Parceners by custome in our Lawes and a great patriarch of our profession maketh two sortes of Parceners Parceners by the common Law and Parceners by custome Parceners by the common Law are when a man or woman seised of landes or tenements in fee simple or fee taile haue no issue but daughters and die and the tenements discende to the daughters and they enter into the said landes or tenements now they are Parceners and how manie daughters so euer they be they are but one heire to their auncestour And they are called Parceners 2. Who be Parceners by the common Law because by the writ which is called de Particione facienda the Law will compell them to make particion of the land Also if a man seised of tenements in fee simple or in fee taile do die without issue of his bodie ingendred and the tenements discende to his sisters they are Parceners by our Law So if his landes discende to his Auntes a Littlet lib. 3. c. 1. fol. 54. And none bee called Parceners in our Law but women or the heires of women which come to landes and tenements by discent For if two sisters purchase landes or tenements thereof they be called Iointenants and not Parceners b Littlet ibidem fol. 56. But bretherne may be Parceners by the custome as by the custome of Gauelkind in Kent bb Littlet ibid. 59. Codicgn We haue an action in our Law 3. Who be Parceners by the Custome verie like to your aboue mencioned writ of Particione facienda and it is called actio familiae herciscundae and it lieth for them which haue a common inheritance to bee deuided betwixt them As when two sisters brothers or kinsfolkes are instituted heires and by that meane are reputed as seuerall heires to the auncestor or him that instituteth them c ff famil hercis l. 1. et 2. C. de verb. sign l. sin For if the Testatour pointing with his finger at three seuerall persons doe saie vnto them quilibet vestrum haeres mihi esto his 4. That by the Ciuill Law where three heires are instituted they are not reputed as one heire meaning by our Law is taken to be this that euery one of them should be heire in parte non in solidum for maeteria subiecta the thing it selfe doth require it because it is vnpossible by our Law that euery one of them should haue the inheritance in solidum d L. hoc artic ff in fi ff de haere insti But if he doe not speake distributiue but collectiue as if he said Quisquis mihi haeres erit det Titio centum solidos now whether there be one heire or
l. legatum ff de annu lega because the worde vntill doeth signifie in this case a limitation And though there ought to be a multiplcation of paiments yet there is a limitation ad tempus nubēdi that afterward the paiment shall not be due but if a mā deuise to his daughter his lands which he bought of Cornelius vntill she marie this signifieth not a yerely legacie because subiect a materia non patitur vt sit multiplicabile But it onely signifieth an extinction of the legacie whē the mariage is accomplished For if a man deuise his land in Dale to A. vntill he be Shirife of London as soone as he is Shirife of London the legacie is determined and immediatlie reuerteth to the heire ſ L. fi C. de leg For as it is in the power of the Testatour to make the legacie begin at a certaine time so likewise it is in his power to make it end at a certaine time Nomomath You haue put good and perspicuous diuersities betwixt a condition and a limitation I pray you Anglonomoph shew what your Law determineth of this difference Anglonomoph The verie same difference is 3. A difference betwixt a limitation and condition at the common Law in our Law which by cases shall be explaned A man graunteth to an other his manour of B. so that he paie 10. li. yearely to the lessour during the life of the lessour and if the said rent be behind that then it shall be lawfull for the lessour to distraine for it in the lessees manour of S. the lessour hath a franktenement in the rent sub modo depending vpon the will of the lessee and the lessour and there is a limitation implied by Law though not verbally expressed t 3. E. 3. 15. Assise 172. So if a man make a Lease to one for life paying the first six yeares 3. quarters of corne and if he will hold it longer a C. s. the word If in this case maketh but a limitation u 15. E. 3. Execution 63. So if a rent of 5. pound be graunted to I. as long as the grauntour his heires or assignes shall hold the manour of W. this was adiudged to be a freehold in the grauntee but yet with a limitation uu 10. Ass pla 8. Br. Estates 31. as long as the grauntour should hold the manour of W. So if a man graunt a common in his land in Dale when he putteth in his beastes or graunteth an estouer of Wood when he commeth to his manour of D. the grauntee hath a freehold but qualified with certaine limitations a 17. Ass pla 7. So it is if the king graunt an office to I. S. donec bene fideliter se gesserit b 3. Ass pla 9. et 6. So if land be leased to one quamdiu se bene gesserit c 37. H. 6. 29. So if a man deuise his land to his eldest sonne in taile with seuerall remainders in taile and that the partie morgaging incumbring entangling or aliening the land shall be clearelie discharged excluded and dismissed touching the intaile and the conueyance of the intaile shal be of no force vnto him this is not a condition but a limitation for if it were a condition the right heire might enter for the breach and defeat all the meane remainders in taile which is not consonant to the intent of the Deuisour d 13. et 14. Eliz. Com̄ Newyses c. 403. And whereas you haue said that a man by way of limitation may deuise money to be paied out of his chest or coffer and if there be no money in the chest or coffer there is no money due our Law dealeth 4. The common Law is more ample and large then the Ciuil law in matter of limitation more amplie and beneficially in like cases For if a man graunt to me an annuitie of x. li. to receiue out of his coffers if he haue neither coffers nor money in thē yet his person shal be charged with the annuitie e Fitzh Nat. bre 152. A. 9. H. 6. 17. because the graunt it selfe induceth a charge vpon the grauntour Yet an annuitie may be graunted with a limitation as if an annuity be granted to take at euery time as often as the grauntour shall come to his manour of S. or as often as the grauntee shall come to the house of the grauntour f 14. E. 4. 4. So if I graunt an annuitie of x. li. out of my land in Dale and I haue no land in Dale this graunt is not void but my person shall be charged g 9. H. 6. 53. per Newt et Cot. Nomom Pause here Anglonom What is Canonologus drowsie or entred into some dreame Canonolog I was neither drowsie nor dreaming but the eies of my mind were somewhat closed and shut as the hares be when she watcheth for the houndes for if I could haue taken any aduantage of the speeches of my two companions I would not haue been so long silent But in truth our Law in the matters of condition before handled hath no other oracle but the Ciuil Law if hereafter there happen any variance I will not conceal it from you Nomomath Let me then aske you this question 3. Diuision Codicgn A man deuiseth to R. x. li. and if he wast or spend it then he deuiseth vnto him x. li againe Suppose that he do spende twentie pound whether may he afterward demaunde 10. li. because the deuise is indefinite Codicgnost The deuise is not indefinite 1. Rursus or the word againe signifieth once againe by the Ciuill Law for this word againe signifieth as much as once againe according to the rule of our Law Rursus verificari potest in vna vice h l. fidei commiss §. si quis ff de leg 3. Otherwise it might be that the executor should be charged to the full value of all the goodes of the Testatour For if the deuisee were an Acolastus though the executor were by the executorship a Craesus yet all would not serue Anglonomoph Your reason is good but yet I would not be peremptorie in this matter for it is not in our Law so cleere For two Iudges were opposed against other two in the like case There is a Prouiso in a Lease that 2. How farre forth a word of restraint is to be extended at the common Law neither the lessee nor his assignes shall not alien to any without the assent of the lessour but onely to the wife or the children of the lessor and the lessee alieneth to one of the sonnes of the lessour It was left ambiguous whether the restraint were now determined i Mar. 152. Dy. Nomomath Let this be the case I am bound to paie you twentie pound if your ship come 4. Diuision from Russia and after the ensealing and deliuerie of the bond we make this condition that the twentie pound which I did before owe
§ Sed natural instit de iu. na as I haue sufficiently shewed in my Direction to the study of the Law Cap. 7. 8. but onely of such thinges as belong to them by the Ciuill law yet by the opinion of the later Ciuilians this is helde to bee no law but that the Princes haue for speciall causes free disposall of their landes and goods as Decius fully proueth k Deci. Cons 209. in casu 2. 69. consultus 390. quoniam 519. visis 557. accurate and this later opinion seemeth to bee more reasonable and more consonant to the truth for first though the distinction of demesnes and the propertie of goods be parcel of the law of nations yet the meanes wherby they are acquired are prescribed by the ciuill and common lawe so that they are not altogether parcell of the law of nations l Bal. â—a in l. omnes C. Si con ius vel vtilitat pub Againe the right of demesne and property is not alike in all nations m Herodot li. 4. Strab. lib. 11. Arist lib. 2. polit Tacit. de mor. Germa Caes lib. 4. 6. de bel Gal. but is moderated and ordered by the lawes of particular coÌ„mon weales But suppose that the king wil take away from any of his subiectes the right and power of vsing and pursuing an action for the recouery of their lands goods chattels or dammages Surely this is permitted by no law but by the ciuill n l. 2. C. de prec imp off and common law expressely prohibited for the king cannot grant to any person that he shal not be impleaded or sued in this or that action though his highnesse may graunt that I. S. for trespasses or any thing done wrongfully in his mannor of Dale shal hold conisance of pleas within the same mannor yet in this case he doth not take away the action of the partie but doth onely restreine him to bring his actioÌ„ in a certain place o 8. H. 6. 19. But here it may be obiected that a king or absolute monarch may p li. vlt. C. de consul without cause seise the lands goods of his subiects for it is plaine that a king hath more power ouer his subiectes then the father hath ouer his children but by the ciuil law the father may take away the goods of his children when hee will q l. placet 79. D. de acquir haere l. acquirit 10. D. de acquir re do therefore the king may take away c. To this reason grounded vpon the ciuill lawe I do thus answere that by the law of nations kinges haue not such an indefinite power ouer their subiects as fathers by the ciuill law haue ouer their children for by the law of nations kinges were chosen and ordeined at the first for the safegard and protection of the lands goods persons of their subiects so that they may not without cause bereaue them of their goods and therefore there is a good rule in the ciuill law that in priuatorum agris nihil ne publico quidem consilio cum ipsorum iniuria capi ius est r l. Venditor 13. D. de com praed And to that purpose Cicero speaketh well Videndum erit ei qui rempub administrabit vt suum quisque teneat neque de bonis priuatorum publice diminutio fiat and for this cause God did appoint a certain portion of land to euery tribe of the Israelites Å¿ Deutero 17 and by reason of a priuate title Naboth would not sell or chaunge his vineyard with Achab t 1. Reg. 21. and in the inauguration of the king of Hungarie this was exacted of him by oath vt iura regni integra conseruaret u C. in tellect 33. ex tr de iureiuran And in the ciuill law it is said Qui pleno iure Dominus est alienandi dissipandi disperdendi ius habet a l. 7. cod de relig l. sed etsi l. 25. §. consuluit D. de haeâ—ed petit And againe suae quisque rei arbiter ac moderator est b l. in remandat 21. C. de mand So that it is euident that without cause the propertie which subiectes haue in goodes and landes may not bee altered by their prince And therefore wittily sayeth D. Gentilis that they which argue to the contrarie do not dispute or drawe their arguments ex castis fontibus Philosophiae aut ex ipsis iurisprudentiae riuis sed escholis sophistarum hallucinati sunt Theologi adulati sunt iurisconsulti qui omnia principibus licere asceuerarunt c Alberic Gentil Dec. 1. disput 2. disput I would not be mistaken in this Chapter sithence I hold an indifferent course betwixt prince and people neither consenting to them which say that princes may seise the lands and goods of their subiects without cause nor to them which thinke that they may not seyse their lands and goods for any cause but my resolution is and the summe of this discourse is if it bee diligently and impartially obserued that princes may lawfully claime and take to their owne vse the lands and goods of their subiects for the causes abouesaid and prescribed by lawe and not otherwise and by this word Princes I meane none but absolute Monarches for the law of nations alloweth this prerogatiue to none other And therfore I do greatly like of that saying of Hipocrates vrged in the ciuill law Lex est rerum omnium domina quia scilicet ciuitatis cuiusque ciuium singuloruÌ„ patrimonium constituit definit tuetur Lex sola dominiuÌ„ rerum confert sola dominij acquirendi modos constituit citra quos acquiri nullius rei dominium potest f §. 2. de bon posses apud Vlpi eo tit reg 19. This foundation being laid I hope my assertion may firmely stande that the law of England in giuing to the Queene the lands and goods of subiects for some peculiar causes is iust and reasonable as when a true man is pursued as a felon and he flieth and waiueth his owne goods these are forfeited as if they had beene goods stolne g 29. E. 3. 29. 37. H. 8. Br. Estray 9. Stam. fol. 186. a. And so if a man be outlawed of felony or treason he shall forfeyt all the landes tenements which he had at the time of the felony or treason coÌ„mitted or at any time after as well as if he had beene attainted by verdict h 28. H. 6. 5. howsoeuer M. Parkins holdeth opinion that attaynder by outlawrie shall haue relation to the exigent as to the landes and tenements so that a feoffement of land or a graunt of rent made before the exigent awarded by him that is attainted in such manner is good in his conceit but he saith that as to an attainder by verdict that it shal haue relation to the time of the felony done according to the supposall of the inditement as to
part of the father that the land shall discend to the next heire of the parte of the mother that is to the race of the heyre of the males of whence the mother is discended rather then to others and in this case of Clere because the bloud which was betwixt the vncle of the part of the mother of the heire and the heire himselfe came immediatly by the womā but the bloud which was betwixt the cosin germane of the fathers side him though it came originally from the woman namely the grandmother yet it is deriued to the heire by the males so that the dignitie of the bloud doth surprise and excell the proximitie of the degree therefore it was adiudged that the cosin should haue the land i 15. Eliz. comm cleres case 442. The fourth Chapter That in making title by prescription and continuance of time immemoriall all nations haue consented OF all worldly thinges time is most puissant for it endeth some things quickly some things once and at last some things it preserueth some things it continueth vnto the end of the world and the force of time is pretily described in these poems Res omnes aeurum chalibem deglutio ferrum stagna lacus fontes ebibo tum fluuios Tabida consumit lignum lapidesque vetustas nullaquè res maius tempore robur habet If by the course of nature time be such an incroacher vpon other things then surely arte law doth imitate nature which giue vnto it such power and authoritie as to chaunge to raise to alter to defeat to strengthen and to establish titles neither doth the law of nations attend the strict circumstances of the ciuil or common law in which these two lawes doe square for by the ciuill lawe there is required iust title which the common law requireth not and bona fides a Gl. si c. illud de prescrip which the common law requireth not and continuall possession which the common lawe onely requireth Prescription was first brought in that there might be a certainty of titles and peaceable possession without contradiction for a long time might turne to a right wherefore it is well obserued in the ciuill lawe bono publico intraducta est vsucapio praescriptio vt sit aliquis litium finis b b. lib. 1. de vsucap whereupon that speech of the Lacedemonians in Isocrates is grounded Wee holde this lande giuen vnto vs by the posteritie of Hercules confirmed by the Delphicke Oracle and the inhabitantes of it being ouercome of vs heere note a triple title in showe and yet all these in effect but a prescription yee knowe well that all possessions eyther priuate or publike to bee confirmed by prescription of long time we haue held Messana more then foure hundred yeares c Isocra in Arch. And so Iepthe did pleade prescription against the Ammonites d Iudic. c. 11. This land said he haue wee possest three hundred yeares The French maintaine their title of Fraunce onely by prescription as Bodinus confesseth dd Bodin lib. de repub for conquered it was by king Edward the third that happie triumphant Monarch assured to King Henry the fifth and his heires e Graft in H. 5 not to Queene Katherine and her heyres f Pet. Mar. comm in lib. iud And some Diuines holde for others doe oppose themselues against this lawe of prescription g Aug. de te ser 105. Epiphan and obserue that the Iewes neuer made question of the title of their Semi because the Cananites did defend themselues by the prescription of 500. yeares wherefore Artabanus the Parthian king did as Tacitus sayeth Per vaniloquentiam vainely demaund of Tiberius the territories possessions of the Macedonians hauing bin h Tacit ann li. 6 a long time possest of Cyrus and Alexander And Soliman more soundly did demaunde the rightes of Constantine the Emperour after a thousande yeares i Ioui 30. 34. But most vnaduisedly of all did the king of Persia demaund all these thinges which did belong to the Persian Empire from the first foundation of their Monarchie vnto the conquest of Alexander Magnus of Constantine and his sonne and of Alexander Seuerus k Herodia li. 6. zon Ammi lib. 17. as if the auncient inhabitants of Pannonia should now claime Hungarie which the Hunnes did conquer name and to this day keepe and vaine was the quarrell which Masinissa made to the Carthaginians lande l Liui. lib. 34. alleadging that they ought to haue no more then Dido the Tyrian Queene enioyed which was no more then coulde bee compassed by the hyde of an Oxe being curt into thonges for they had possest these landes almost seauen hundred yeares likewise weake was the title which Antiochus the great pretended against the Aetolians and the Ionians because these people were once subiect vnto his auncestors hee is well confuted of the Romanes by the lawe of prescription that though his great grandfather did atchiue these cities by warre yet his grandfather and father neuer enioyed them but the cities enioyed their libertie There be some interpreters of the lawe which thinke the king of Fraunce by prescription to be exempted from the Emperours subiection m Fulg. Sacc lib. 1. C. tit 1. against whom rather adulatoriously then aptly Alciat replyeth that no prescription of time wil hold place against the Empire n Alciat lib. 5. de iust for that is not true in a prescription of time which is immemoriall that is when no man as it may be commonly beleeued hath eyther seene or heard the contrary and this by the ciuill law is the space of one hundred yeares o Alexan. 5. Cons 16. Alciat 3. cons 24. But here before I wil grant that such prescription will hold against a king or an Emperor this is onely in such case where neyther possession hath beene had nor clayme made against the said king or Emperor for if claime only haue beene made as the kings and Queenes of England haue done in entitling themselues kings and Queenes of Fraunce and beare in their scutchions the ensignes and armes of that kingdome and so keep the ciuil possession of that kingdome though they haue lost the corporall possession in such case I do not thinke that the prescription of a thousand yeares ought to preuaile but in a case of a common person prescription will hardly run against the prince Therefore it hath beene held in our bookes that if the kinges tenant in Capite bee seised of an aduowson and the church happeneth voide and hee dyeth and the sixe monethes doe passe nay suppose sixe score yeares doe passe p 14. H. 7. fol. 22. then an office is found the king shal haue the presentment notwithstanding the laps before the office But if the question be asked whether the ordinary may present by laps against the king and if he may not how the cure shall bee serued in the meane time
betwixt the laps and the kinges presentment q Ibid. fol. 21. It is answered by some that the ordinarie may present one who shall be remouable at the kings will and some thinke that he shal sequester the profites of the benefice to serue the cure but in some case the King may not surcease his time as if the tenant for terme of life do forfeit his estate to the king if he be not seised during his life hee may not afterward seise it qq 8. H. 5. Trauers 47. but in this case the reason is because hee can haue no other estate then he which forfeiteth and he which commeth in of the estate of an other can haue no greater right then he had for if a man haue land in the right of his wife or in the right of a Church hee can not haue it otherwise then the Church or the wife hath it r 18. E. 3. 20. so if there be Lord and tenant and the tenant alieneth in mortmaine and the Lorde entreth yet hee shall haue onely such right in the land as he hath in the seigniorie notwithstanding that the statute do say Quod proximus dominus intrabit retinebit in feodo ſ 39. E. 3. 38. 50. E. 3. 21. l. 5. E. 4. 61. For this is grounded vpon naturall reason and naturalia sunt immutabilia and the princely prescription must bee maintained bona fide Wherefore the Duke of Sauoy which had the Cittie of Nice in pledge of the French King did vniustly withhold that Cittie frō the king being the lawful owner then because hee had inueterate possession in the same for by the ciuil law a man may not prescribe in a pledge t l. 9. C. de pl. act Deci. 3. consi 108. and Iouius is likewise angrie against the king of Fraunce himselfe for keeping Perpinianum in the like sort Parum sincera fide saith he veteris pacti conditionem multis cauillationibus inuoluebat u Iou. lib. 1. for it is true that Cephalus saith in quaestione valde dubitabili non est praescriptio x Ceph cons 102. But surely bonafides is requisite in such matters of prescription except it be apparāt that the will of God is for the prescription Wherefore Bellarmin confesseth that the Turke doth lawfully possesse such thinges as hee hath taken from vs because God his will is that for our sins we should be cast out of the land wherein we and our ancestors inhabited a Bellar. 5. contr But he doth not possesse them bonafide because hee can not by any speciall meane conuey them particularly to himselfe for as Doctor Gentilis hath well obserued An Turcae opinio latrocinantis cogitat de iusta voluntate Dei b Alb. Gentil lib. de iu. bel 1. 22. Aratus the Sicyonian was so strong and peremptorie for the title of prescription that hee did not thinke it conuenient to remoue or take away from the vsurpers any thing that they haue violently taken from the owner if they haue had possession during the space of fiftie yeares onely c Cicer. 2. de offic Prescription hath alwayes beene of force to hinder these that had right to pursue their clayme Wherefore Demosthenes sayth well Hee that hath helde an other mans landes or goodes a long time should not please himself therewith but impute it to fortune which hath hindred the lawfull owners d Demosth ad maca Is any thing more to bee laughed at then that which is said of some interpreters of the law who are not to bee laughed at that the kingdome of Spaine may now be claimed by the Romane Emperour by reason of his ancient imperiall right whereas it is manifest that sithence the time of the ancient Romane Emperours it hath beene a long time possest of the Saracens a long time of the Spaniards The fifth Chapter That by the consent of all nations consent principally maketh a lawfull mariage IF a man should examine the seueral rites circumstances and ceremonies of the diuers people of the worlde in the knitting and celebrating of mariage he might as well number and obserue the diuerse-couloured spottes of the Chamaeleon for euery nation hath had in this by some fatall lotte both their custome and chaunge of custome I will onely endeuor to proue that which is conteined in my assertion that by the consent of all nations c. The definition of thinges is alway the best proofe therefore it is good to beginne this discourse with the definition of mariage Mariage is the lawfull coniunction of man and woman conteining an indiuiduall societie of life and the participation of diuine and humane right a 30. q. c. nullam where it is said a lawfull coniunction nothing els is meant but a free consent executed by the contract which as it is the beginning of the definition so it is the ground of the mariage and these wordes conteining an indiuiduall societie of life do signifie that they shall continue foreuer together as long as they liue Howbeit the rule of the common Law do in this sauour of the irregular Religion Post contractum matrimonij ante carnalem copulam possit alter altero inuito religionem intrare b Gazalup in verb. nuptiae And for the further proofe that the ground of mariage is consent there be three thinges by the Canon Law required to mariage c Codi ap C. vlti c. 27. q. 2. Fides Proles and Sacramentum Fidelitie which is put in the first place is the hart of mariage and it springeth of consent and therefore if a man do contract with a woman in this sort Contraho tecum si te pro quaestu adulter andum exposueris this is no contract of mariage because it is contra bonum fidei which consisteth in this that neither of the maried couple shall break the bond of mariage but shall faithfully and vnitedly obserue it Likewise Progenie is an other thing that mariage requireth and therefore it can not be a good contract of mariage if it be made in this forme Contraho tecum si generationem prolis euites or si venenum sterilitatis accipias because mariage was instituted of God for the solace of man and the multiplication of mankind by children Thirdly a solemne promise is requisite in mariage and therefore if a man do contract with a woman donec ditiorem vel pulchriorem habeat faeminam this is no good league of mariage because it is contrarie to the oath of an indiuiduall societie And so if any man in a foreine land sucking as yet the smoak of the Popes Tobaccho be a votarie to Religion and a bondslaue to his cloyster for England the Lord be praised is at this day as free from Monkes as it is from wolues Three things are required at his handes namely chastitie obedience and the abdication of propertie as well in landes as in goodes d Gazalup in verb. matrimon But that
Mithridates being ouercome and put to flight of them to whome they fled g Liui. 7. 22. Plut. in Luc. App. in Mithr but without all doubt these places and the things of these places which the conquering armie doth possesse doe iustly belong vnto the conqueror therefore that is said to be the conquerors territorie vbi exercitus eius terret h Panor 2. cons 62. Bald. lib. 3. de off praes And Alexander might well laugh at Darius who in the articles of peace would haue yeelded these things to Alexander which he did alreadie possesse i Curt. lib. 4. 5. And Hanniball did disdaine the Romane simplicitie though they did it of great pollicie in selling that ground which hee did possesse with his armie k Liui. lib. 26. And Brasidas the Lacedemonian saide well that that was not the Boetians land which the Lacedemonian armie had seysed l Thucyd. li. 4 And when a Monarche or free citie yeeldeth al the members and inferior parts doe yeeld implicatiue wherefore Baldus saith well A submissione capitis sequitur submissio meÌ„broruÌ„ reruÌ„ quia seruieÌ„te capite membra seruire necesse est And it is certain that the ornaments riches of the people subdued they may take away iure imperatorio as Cicero saith m Cicer. Verr. 3. So Camillus a most strict obseruer of the lawe of armes did take the image of Iuno from Veios n Liui. lib. 4. Marcellus caried away many things from Siracuse o Plut. in Marc. and Mummius conueied great store of Church-ornaments out of Achaia p Zonar And Sir Frauncis Drake that sea-flowre of England did as I haue heard bring home with him the great golden statue of S. Christopher which hee tooke in one of the Churches of Porto Rico when hee sacked it And though there bee somewhat in scripture q Dani. c. 5. spoken against the spoylers of the temple of Ierusalem the cause was for that God had chosen that temple to be his house and the spoilers of it did it in reproach of his maiestie But it is plaine that cities surprised may bee sacked cities yeelded vpon condition may not r Liui. lib. 37. and cities surprised may bee sold and the walles may be destroied and the cities themselues Å¿ Plut. lib. 4. The wals of Athens were destroyed by the Spartanes t Thucyd. li. 1. The walles of Sparta by the Achaeans u Liui. li. 38. the walles of Ierusalem by the commandement of Pompey x Tacit lib. 5 part of the walles of Giscala by Titus a Ioseph 4. â—elli Iud. the walles of Argentina by Attila which hee would needes haue afterward called Polyodopolis as now hauing many waies to come vnto it b Bon. sin 1. vng 2 Fredericke was brought in triumph through the walls of Millaine yeelded vnto him c Sigon lib. 13. de re It. Alponsus through the walles of Naples as Guicciardine reporteth Iulius the Pope of Rome through the walles of Mirandula was it because the gates were throwne downe or because such a holy man wold not make a prophane passage through the gates but through the walles which are commonly consecrated or because his ordinarie course is to enter by the window his extraordinarie at the wall or because he wanted the Aspe and the Basiliske to walke vpon he thought good for that present to trample vpon stone and morter as to generall subuersion of cities after a victorie obtayned it is manifest that Thebes was destroyed by the generall concord of all the Grecians because they tooke part with the Persians e Diod. li. 15. Liuie maketh mention of Alba Pometia Corbio Cortuosa Contenebra Satricum Antipatria Phaleria and others which were so destroied f Liuie l. 1. 2. 3. 6. 7. 24. 31. 32. Carthage had the same fortune which is said to haue suffered the plough a ceremony vsed of the Romanes in razing of the foundations of a citie conquered g l. 21. qui mo vs am the same fortune had Ierusalem h c. 7. dist 76. 1. Mich. 3. according to the prophesie of Micheas Sion vt ager arabitur l The eight Chapter That in the lawes and constitutions touching Citties corporations liberties franchises and immunities and the good gouernment and administration of shem all nations haue agreed COrporations in the whole course and constitution of them doe verie much resemble the naturall bodie of man for as there bee in it great diuersitie of partes so is there likewise great distinction in cities and corporations of misteries degrees In Egipt there were in their seuerall corporations diuers sorts and callings of people Kings Priests Warriors and Workemen which last kind was subdiuided into foure members Shipmen Artificers Husbandmen and Shepheards a Arist lib. 7. polit c. 10. Herod lib. 2. histor And as a naturall bodie doth consist of things bodily and of a soule which is vnbodilie so that it consisteth of thinges meerely opposite So likewise a citie or corporation consisteth of multitude and vnitie whereof multitude is as the bodie vnitie as the soule both different in nature That multitude is as the bodie of a Cittie needeth no great proofe Yet heare thereof Florus Cum populus Romanus Etruscos Latinos Sabinosque miscuerit vnum ex omnibus sanguinem ducat corpus fecit ex membris et ex omnibus vnus est b Florus l. 3. c. 18. Heare the opinion of the Stoicks comparing the world to a corporation Ciuitas totius mundi vna est omnes homines populares municipesquè veluti armentum vnum compascuo in agro compascens c Cice. li. 3. de fi Plut. de vi Alex. Heare also Seneca Homo homini in maiore ciuitate ciuis est in adiutorium mutum creatus d Senec. 1. 2. de ira and that vnitie is the forme and as it were the soule of a corporation may diuersely appeare Florus saith excellently for he either could not or would not write but excellently Augustus Caesar sapientia sua atque solertia perculsum vndique et perturbatuÌ„ ordinauit imperij corpus Quod it a nunquam haud dubtè coire coÌ„sentire potuisset nisi vnius praesidis nutu quasi anima mente regeretur e Florus lib. 4. c. 3. And Seneca saith wittily Societas haec nostra lapidum fornicationi simillima casurae nisi inuicem obstarent sustinerent se lapides f Sene. epist 96. This our society is like vnto an arche of stones which would soone fall if one stone did not hinder and beare vp another S. Ambrose diuinly Lex naturae ad omnem nos stringit charitatem vt alter alteri tanquam vnius partes corporis deferamus And the saying of Cicero though an heathen is not heathenish Spurca eorum sententia qui ad se omnia referunt g Cice. lib. 7 ad Attic. ep 2. And both he and S. Ierom
Alciat hath obserued f Alci l. 27. de V. S. neyther am I of the minde of Phillip Commineus who denieth generally that princes may command tributes ff Philip. Commi comment for I make no doubt but a conqueror may commaund tribute and all that come in vnder the conquerour by the law of nations and therefore the Romane generall saith vnto the French men Iure victoriae tributum vobis addidimus g Tacit. 4. histor And Iustinian doth commaund that tributes may be imposed vpon the Zani being conquered vt victos se agnoscerent and the Iewes though they had beene clearly conquered for their citie was sacked their temple possessed their Sanctum sanctorum looked into for as Florus saith Impiae gentis arcanum illud vidit sub aureo vti coelo h Flor. lib. 3. histor yet craftily after their manner because they would haue Christ to haue challenged their earthly kingdome by that mean to draw him into hatred with Caesar they demaunded of him whether it were lawful to giue tribute to Caesar but he that alway professed Regnum meum non est ex hoc mundo gaue them a bone to gnawe Date quod est Caesaris Caesari and quod Dei Deo i Mat. 22. for in deed tributes are allowed by the law of God k Deut. 20. therefore Cicero saith excellently that tribute is victoriae praemium poena belli l Cicer. in verr 5. And Orosius almost as excellently that it is vinculum pacis monumentum belli m Oros lib. 5. c. 1. And though the Spaniards Germanes and English doe seeme rather to offer a tribute to their Monarch then the Monarch to commaund it for the curtesie of England is great the clemencie of their princes greater yet for England thus much I dare speake vnder the rule of modestie protest that sithence the vniuersal conquest of William who first commanded and imposed tribute vpon this land for conquerours may commaund tribute and subsidie haue beene as iustly both by the law of God and the law of nations payed in England as in Iewrie yea and iustly continued as a remembrance of a conquest wherefore it is diuinely said of that great diuine Tertullian Agri tributo onusti hominum capita stipendio censa notae sunt captiuitatis Lands charged with tribute polles with taxe are signes of conquest n Tertull. i◠Apolog. Bodinus in my mind giueth good counsell to princes to set a great impost vpon such thinges as corrupt the manners of their subiectes as namely vppon these compounded perfumes these paintings of the face these Margarites these Marchpanes Wines o Bodin lib. 6. de rep c. 2. and Tobacco but vainely and contradictorily to himselfe doth Bodinus say that Haec principi prohibenda non sunt nec si velit possit prouing it out of the fifth booke of Plato because such is the nature of men that these things quae sanctissime vetantur auidiùs expetant By this reason there could bee no fault nor default forbidden as for Bodinus I excuse him thus Nullum fuit magnum ingenium sine mixtura dementiae which Seneca obserueth oo Senec. in fin lib. de ira And as to Platoes authoritie this is but errare cum Platone Plato did erre with Plato Sometime hee did erre as in the discourse of intemperate banquets in the brutish lust inward itch of Alcibiades in his fond vnclean fables of Athenaeus hee is more sharpely noted to bee inuidissimus rabiosé male dicentissimus mendacissimus improbissimus ridicule ambitiosissimus p lib. 4. 5. 11. by his darke amphibologicall writing he is said to be the cause of the death of that thrise-worthy Romane M. Cato q Plut. in Cat. whose death at Vtica gaue him his dismall name and Solons lawes though hee were his ancestor a great deale wiser and farre more imployed in matters of estate could not content him but hee must haue visioned lawes such as were neuer vsed sithence his time and therefore as it is likely neuer shall be vsed For what is it that hath beene that that shall bee and what is it that hath beene done that which shall bee done And there is no new thing vnder the sunne r Eccleast c. 1. and that that shal be hath now beene rr Eccles c. 3. But to come to my purpose again and to another prerogatiue of princes Princes likewise maintayne their realmes and their estate royall by importing and bringing in such things as be of value or price Wherefore Liuie noteth of Carnileus Consul ſ Liui. lib. 9. that all the brasse and all the siluer he brought into the treasurie and he saith of Fuluius that hee brought out of Spaine into the treasurie an hundred fortie two thousand pound of siluer and an hundred twentie seuen thousand pound of gold and of Camillus t Liui. li. 3. that when hee had ouercome the French nation beyond the Alpes hee brought in a hundred threescore and tenne thousande pounde of siluer and of brasse three hundred twentie thousand and of Flaminius u Liui. lib. 34. that he brought out of Greece eighteene thousande pounde of siluer in bullion and two hundred and seuentie thousand of plate fourescore and foure thousand shillinges and three thousand seuen hundredde and fourteene poundes of golde a buckler of golde entier Of Phillippes money a hundred fortie and fiue thousande pounde and an hundred fourteene pounde of golden crownes which the cities bestowed on him And Paulus Aemilius uu Liui. lib. 45. that president of a capitaine when he had surpised Macedonia brought into the treasurie a thousand and two hundred sestertians And Caesar hauing ouercome Fraunce foure thousand sestertians Fabius Maximus x Liui. lib. 27. brought in fourescore and three thousand pound of golde beside great quantitie of siluer And Scipio commonlie called Asiaticus y Liui. lib. 36. 38. 39. did bring in after his victorie had against Antiochus two hundred thirtie and three poundes in golden crownes two hundred fortie and seauen thousand poundes of siluer of Phillippes rials a hundred fortie thousand and a thousand and twentie foure poundes of gold Who can number that which Cato brought from Cyprus a Flor. lib. 3. that which Pompeie b Lucan lib. 3. brought from the Easterne Southern warres These by doing thus did make that common wealth great others by doing the like may make others like And Alexander the great did replenish all Greece with siluer when hee had atchiued the victorie of Darius and the Persians Looke vpon my whole armie said he they which before had nothing but coates of steele do now lye in siluer beds c Curti. lib. 8. And much did Anniball enrich the Carthaginian treasurie when after his victory at Cannae he sent into the Senate of Carthage d Liui. lib. 23. three strike of golden ringes and so compassed them by measure though
et hi. D. de publica l. â— C. pro fo l. si quis C. de vect et com A princelie thing doubtles it is and for it there hath been great contention betwixt great estates as namelie betwixt the Burgundians and the Almannes betwixt the Hermunduri and the Catti together with that of Perusia vnder Paulus the third and that of Fraunce vnder Frauncis the first and diuers others daungerous quarrels haue been about pretensed titles to Salt d Ammian lib. 28. Tacit. lib. 13. Guicciar lib. 12. 14. 16. 18. 19. Neither is it to be meruailed that Princes make so great accompt of it for Homer accompted it diuine if it be true which Plutarch reporteth of him e Plut. in symp 5. q. 8. But what shall we saie now of the other entralles of the earth as Pitch Chalke lyme quarrie stone brimstone and the like As for gold and siluer I make no question but by the Law of nations they belong to the Prince I would aske this question Sithence God hath treasured in the mines gold siluer other mettals for whom hath he treasured them if all the Mines of gold siluer should be in the lands of one subiect is it lawfull for him to coine money of this siluer gold no verilie as may appeare by that question of our Lord and Sauior when he asked whose stampe or impression the money did beare e Matt. 22. ver 20. what shall he then do with it shall he make plate of it by this mean a subiect shall haue plate the king none which is not conuenieÌ„t Therfore I take the iudgment giuen in the case betwixt the Q. Maiestie the Earle of Northumberland touching the title of these roiall Mines to be sound and grounded vpon inuincible reason howbeit the graunt was omnium et singularum Minerarum for the diuersitie is there by Wray well taken that there be two sorts of Mines mines roiall base mines Now mines roiall may be subdiuided into two other kinds those which contein in them siluer or gold entierlie or which haue brasse or copper in them and haue some vaines of gold intermixed both these belong to the Prince for the gold as magis dignum attrabit ad se minùs dignuÌ„ But such as haue in them meerly brasse iron copper or lead may belong vnto a subiect by special title f 10. Eliz. ComÌ„ 310 Informac pur Mines notwithstanding Dio a wise iudicial writer maketh all Mines of mettall in general publike as belonging to the Prince or common weal g Dio lib. 52. And mines of Pitch Cicero allotteth to the Prince by the like ceÌ„sure h Cicer. in Bâ—ut And doubtles there is great reason for their opinion because it should seeme that these mettalles were created of God not for a priuate but a publike vse at the first for iron and steele do principallie serue for armour and there is a rule in the Ciuill Law De armis publice asseruandis i Nou. 85. Pitch is principallie ordeined for the glewing together of the bordes of shippes and shippes were principallie ordeined for the common weale Copper and Brasse haue in all ages and common weales been compaignions of the aforesaid Mettals and haue been vsed with them and passed with them as the shaddow with the bodie Yet if a Prince haue transmitted his title or right vnto the base Mines to anie of his subiectes I think he cannot by roiall claime wrest them out of his handes And this Suetonius reckoneth as one of the concussions of Tiberius who tooke from cities and priuate men the Mettals in which they were lawfullie interested k Suetoni in Tiber. c. 49. And Laurentius Medices hath been touched likewise for the same fault l Molin ad Dec. cons 292. that the landes and goods of Traitors and Felons doe by the Law of Nations belong to the king or Monarche hath been afore cleerelie prooued in the second Chapiter of this Treatise But what shall we saie of Treasure found in the earth will not the Law of Nations assigne it to the Prince Yes verilie notwithstanding Plato his straunge conceit that they should be immobiles and Dijs inferis sacri for should there be no vse of so pretious thing and one of the most gorgeous creatures of God It is an argument of a froward a brutish humour to make vse of quarrie-stone not pretious stone of coal and not of gold The Romanes were as superstitious as Plato but a great deale wiser for they dedicated a temple to Pecunia that they might be pecuntosi stored with money m D. Augstin lib. 4. de ciuit dei c. 21. Wherefore Iuuenall by his leaue was deceiued when he writ etsi funesta pecunia templo Nondum habitas nullas nummoruÌ„ ereximus aras n Iuuen. Satyr 1. But it is no meruaile if this poet were ignorant that it was idolized for Varro writeth that to many of the learned their gods their sacrifices and ceremonies were hidden and vnknowne but M. Stamfords reason wherefore treasure should belong to the king is vnanswerable and it is this quia dominus rei non apparet ideo cuius sit incertum est o 22. Assis pl. 99. and it is a currant rule in all nations In ambiguis casibus semper praesumitur pro rege Adrianus Caesar made a lawe as Spartianus reporteth that if any man had found treasure in his owne ground himselfe should haue it if in an other mans hee shall giue the half to the owner of the soile if in a publike place he shall diuide it equally with the treasurie This law was abrogated by other lawes following and reuiued by Iustinian but now and long time agoe the ciuill law hath transferred it to the prince in whose realme it is found p l. 3. §. Nerati D. de acqui posses and it is a firme conclusion in the common law Quòd the saurus competit domino regi non domino libertatis nisi sit per verba specialia q Fitzh Coro 281. 436. The eleuenth Chapter That all Nations haue both secretly and by the course of their ouert actions acknowledged and yeelded to the truth of the lawes and commandements of the 2. table of the decalogue HOw far the light of nature stretcheth may appeare by the liues of vertuous heathen men who knowing that the sixe last precepts which almightie God prescribed to his people were to bee obserued and kept yet wanted grace to refer them vnto God who ought to bee the marke of all our actions and in regard of whom only they may be tearmed good M. D. Barlow in his deep learned discourse against the shallow-headed Papist reasoneth soundly and prooueth by the Apostles words quidquid noÌ„ est ex fide est peccatuÌ„ by other vndeniable proofes that such works could not be acceptable to God because howsoeuer they proceeded from God yet they were not referred to