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
lands and tenementes and so it is of an attainder by confession i Parkins Graunts 6. But M. Stamford being better aduised saith that as soone as any of the offences aforesaid are committed hee is restrained to make a gift or any other alienation of his lande and if he doe it shall presently bee made void by his attainder and it is not materiall whether the attainder be by outlawrie or verdict and this is agreeable to the booke of 38. E. 3. fol. 37. k Stamford fol. lib. 3. 31. â— but he saith that the forfeiture of the goods by attainder by outlawrie shall haue relation to the exigent and forfeiture by attainder by verdict shall haue relation to the verdict l Stamford 192. The third Chapter That the worthinesse of blood hath beene principally respected of all nations THe diuision of inheritances in stirpes in capita hath made great diuision in diuerse common weales yet in all of them the worthinesse of bloud hath beene regarded By the Romane law the sonne of the elder sonne who is dead shall equally succeede in the inheritance with the second sonne And whereas in Germanie there was a contention betwixt the vncles and nephewes of the right of inheritances and for the deciding of it the Emperour Otto the first did cause a Parliament or generall assemblie of estates to be held for the disceptation and deciding of this doubt When after much busines and argument no determination could be had the matter was ordeined to be tried by single combate an vsuall thing in these daies for it was about the yeare of the incarnation of our Sauiour nine hundred fortie and two a Witichindus lib. 2. histor 2. Sigebert in chronic Ottonis 1. and a formall triall referred to God when mans wit was at a nonplus But in this case that part ouercame which did accompt the sonnes of elder sonnes as sonnes and therefore it was ratified by Law that they should equally diuide the inheritance with their vncles Amongest other nations diuers contentions haue risen about this matter for when Eunomus the King of the Lacedemonians had two sonnes Polydectes the elder and Lycurgus the yonger and Polydectes deceased leauing no sonne lyuing at the time of his death and therefore Eunomus being dead the septer of that kingdome came to the handes of Lycurgus afterward when Polydectes his widow had brought forth a sonne Lycurgus did willingly and readilie yeeld to him the septer b Plut. in vit Lycurg Iustin lib. hist 3. Which act of Lycurgus agreeth fully with our Law whereby it is ruled that if a man haue a sonne and a daughter and the sonne purchaseth land and dyeth and the daughter entreth and after the father begetteth an other sonne of the same wife this sonne shall haue the land c 19. H. 6. 6. So if a man enfeoffe an other vpon condition and the condition is broken and the feoffor dyeth without issue his wife priuement enseint and the brother of the feoffor entreth for the condition broken and after a sonne is borne he shall auoide the possession of his vncle may lawfully claime the inheritance d 9. H. 7. 25. And it is likewise said that after two or more discents the heire afterward borne claiming by discent may enter into the land but he shall not haue a writ of Accompt for the mesne profites nor any writ of Wast e 9. H. 6. 23. But in cases of purchase the Law taketh a difference and therfore it is said 5. E. 4. by Billing that if a man deuise land to a man and his heire and the deuisee dieth hauing issue a daughter his wife being priuement enseint with a sonne who is afterward borne the daughter shal reteine the land in perpetuum which the Court graunted f 5. E. 4. 6. And 9. H. 6. it is said that if a remainder cannot veste in any at the time when it falleth it shall not veste in him that is borne afterward where an other hath entred before g 9. H. 6. 23. 2. Eliz. 190. pla 18. But to retourne to the examination of this matter by historie Pausanias reporteth that Cleomenes the king of the Lacedaemonians being dead a controuersie sprung betwixt Areus the sonne of Acoratus the eldest sonne of Cleomenes who died before his father and Cleonymus the second sonne the vncle of Areus but by Senate-decree the kingdome was adiudged to Areus h Pausan lib. 3. And Polydore Virgill reporteth that king Edward the third being deceased Richard the second the sonne of his eldest sonne obteined the kingdome and was preferred before Iohn Edmund and Thomas the sonnes of king Edward i Polyd. virg in hist reg Angl. Paulus Aemilius an excellent writer of the matters of Fraunce likewise telleth that when Hanno had inuaded the kingdome and expulsed Erkenbalde the sonne of his elder brother this matter was brought into question in the ende Hanno was constrayned to laie aside armes and to stande to the iudgement of the Peeres who adiudged that Erkenbalde should haue the same power and interest in the kingdome which his father might haue had if he had suruiued k Paul Aemil. in tit Carol. Crass Neither will I denie that examples may be produced on the contrarie part as namelie the contention betwixt Artemenes and Xerxes for the kingdome of Persia for it is deliuered by Herodotus l Herodot lib. 7. Iustin m Iustinus lib. 11. Plutarch n Plut. in Artaxerx that a controuersie beeing raysed in the kingdome of Persia betwixt Artabazanes as Herodotus Artemenes as Iustinus calleth him and Xerxes the sonnes of Darius Hystaspes about the succession in the Monarchie of Persia Demaratus was at the same time there who was driuen and expulsed out of the kingdome of Sparta and he signified vnto them that the Law and custome of the Spartanes was that the sonne that was borne after the father had attained to the kingdome was to be preferred before the elder brother who was borne before for which cause the kingdome was adiudged to Xerxes the yonger sonne who was borne of Darius being king whereas the other was begotten of him being a priuate man But this iudgement was after reuersed For when after the death of Darius the same controuersie was handled betwixt Arsica begotten of Darius being a priuate man and Cyrus being borne of him after his aduauncement to the kingdome and Parysatis the mother did in the behalf of Cyrus vrge and reuiue the controuersie betwixt Xerxes and his brother the Persians notwithstanding the former iudgement did now adiudge the kingdome to Arsica o Plut. in vit Artaxerx Neither am I moued though in the contention for the Dukedome of Millayne betwixt Lodwike and Galeatius bretheren whereof the one was borne before his father obteined the Dukedome the other after the contrarie were determined for Law p Guicciard lib. 1. histor For by the most examples of euery
Heresie subiect to the censure of the Canon Law onelie or to the iurisdiction of all your Lawes I pray you shew me how and how 10. Diuision farre forth it is punishable Canonolog There be two thinges which make Heresie First it must respect and concerne the Articles of our Faith Secondly there must be a stubborne and pertinacious affirmation for there must be error in ratione and pertinacia in voluntate h Cle. 1. §. porro de sum trini for where there is error but not obstinacie there the partie can 1. Two Sorts of Heretikes formatus and suspectus not be said to be formatus but suspectus haereticus and then he holdeth the error inquisitiue but not adhaesiue But he that is formatus haereticus is thus punished in our Law he is excommunicated he is bereaued of all ecclesiasticall promotion he is deliuered vp to the secular power and all his goodes and landes be confiscated and taken away from him i c. ad abolend de haeretic c. Excommunicamus de haeret et c. secundū leges eo tit lib. 6. But in two cases their landes are reserued and left to their children First if they reueale their fathers heresie k c. Vergent in sen de haeret c. vt inquisit de haere lib. 6. 2. If they haue been so long in possession 2. In what case the wife and children of Heretikes shall enioy their landes that they may prescribe l c. vt officium de haere lib. 6. But the dowrie of the wife of an Heretike is not forfeited vnlesse she do marie him knowing of the heresie m c. de creu eo tit lib. 6. Codicgn Our Law agreeth to that which you haue said And further prescribeth an other punishment which you haue not mencioned against such offendors for it saith that they shall be burnt aliue n l. quisquis C. ad l. Iul. maiest Et c. vt inquisitionis de haeretic lib. 6. Nomomath Yet I haue read in a learned Ciuilian that in the whole bodie of the ciuill 3. Heretikes by the ciuill Law not punishable by fire Law it is not recorded that Heretikes should be put to death by fire and therefore he is somewhat bold with the Canonistes and calleth them igniuomos canonistas o Alber. Gentil lib. lecti 2. Codign Indeed our Law as to that point is wholie grounded vpon the Canon oo c. ad abolend de haeretic Canonolog It is not grounded vpon the Canon for we referre the matter wholie and finallie to the secular Magistrate as your writ de Haeretico comburendo Anglonomoph doth testifie Anglonomoph Indeed in our Realme in auncient 4. The Canonist poasteth the punishment of Heretikes to the cōmon Law time he that was to be burnt for Heresie was first to be conuicted of the same before the Bishop of the diocese c. and ought to abiure it And if he did after relapse into it againe and were thereof condemned in the said Dioces then he should be sent to the secular power to doe with him whatsoeuer should please the king ooo Fitzherb nat bre 269. But afterward by the Statute of 15. of king Henry the eight p 15. H. 8. cap. 14. it was ordeined that he who had once abiured heresie and was relapsed 5. The professor of the common Law bandeth back againe the punishment of Heretikes to the Canon Law and was conuicted hereof before his Ordinarie that notwithstanding the Ordinarie ought not to commit him to the laie power without the kinges writ first purchased herevpon to burne him Nomomath Then I perceiue the whole act both of adiudging to the fire and of sending the partie to receiue that punishment dependeth now wholie vpon the Canon Law and the sentence of the Bishop framing the style of his iudgement according to the Canon Law Canonol The secular power putteth him to death but we are discharged of it Nomom Nay verily no more then Nabuchadnezer can be acquited of exposing the life of Daniell to hazard for he might as well haue excused himselfe and said that he did not meane to kill him but did onelie commit him to the curtesie of the lyons And as he did not personally put him into the caue within the grate so neither do ye personally thrust these which you tearme Heretikes into the fire nor bind thē vnto the stake Nabuchadnezers punishment I haue reade of which was grieuous and horrible But I doe not reade of the admittance of such excuse And when the Iudge of Iudges shall examine such firie proceedings it will be in vaine to excuse themselues by the fire and the chaine and the stake or by the Shirife and the Bailifes if the Iudgement haue been wrongfull and vniust It will be like the excuse that Phillip king of Macedonia made when he was charged with the expugnation and ouerthrow of the Citie of Chius Nequè ego Chium expugnaui sed Prusiam socium amicum expugnantem adiuui q Liuius lib. 32. for so Prusias might haue said that he did it not but onelie encouraged his men to do it So Brutus and Cassius might be excused from killing themselues because they did non inflict the wound but did will and commaunde others to doe it r Flor. lib. 4. histor After as bad a sort Dido cleareth her selfe of her death though not any waie to be cleared Praebuit Aeneas et causam mortis et ensem Ipsa sua Dido concidit vsa manu rr Ouid. Fastor 3. But I will insist no more of this matter Now 11. Diuision resolue me whether any Church-land be demaundable at the Spirituall Law Codicgn Religious houses and landes belonging 1. What things may be tearmed Church-land by the Ciuill Law vnto them deputed to holie vse are comprehended in our Law vnder the name of Church-land or lyuing And all landes which belong to Oratories or priuate Chappels annexed to the particular houses of laie men by the authority of the Diocesan and the landes belonging to them are comprised vnder the name Church-land or Church liuing ſ C. de epis cler in lib. Orpha Likewise that plott or parcell of ground in which a dead man is buried or wherein his head or any part of him is buried becommeth consecrate and religious and therefore cannot be morgaged nor pledged t ff de reli sump fune C. quae res oblig poss l. 1. and of such landes our lawe taketh notice and holdeth full iurisdiction Canonol But in strict reason such things do belong to the iurisdiction of the spirituall court u 42. Disti oratorium Anglonomoph These matters are diuersly taken in our law for in action of trespasse conceiued by the Vicar against the Parson for the breaking of his close and for his lambes taken away whereas the close supposed was the Churchyard parcell of the vicarage of the 2 Of Church-yards the spirituall court
because he did not giue vnto him the moitie of the other fishe This was adiudged in the Kinges Bench. But now suppose that the condition doth extende onelie to some particular estates whether shall the other estates depending bee totallie defeated by the breach of the condition And surelie our Law is that the breach of the condition shall defeat no estate but onelie that whereunto it is annexed For the case was 3. Mar. that a man deuised land to his wife vppon condition that shee should bring vp his eldest sonne the remainder to the second sonne The elder sonne entreth for the condition broken hee shall onelie defeate the estate of the wife And if the tenant for life and hee in the remainder ioine in a feoffement vppon condition that if such an acte be not done that the tenant for life shall reenter this doth not defeate the entire estate of the feoffee i 3. Mar. 125. Dy. And if a gift of land be made in taile the remainder to the right heires of the donee vppon condition that if hee alien in fee then the donour may enter if the donour enter for the condition broken the estate taile is onelie defeated k 11. H. 7. 6. 13. H. 7. 23. 10. H. 7. 11. So if a man lease land for life by deede indented the remainder ouer in fee rendring a rent with clause of reentrie for non payment by the tenant for life and to reteigne the land during his life If hee enter for the condition broken he shall haue the land onlie during the life of the tenant for life l 29. Ass pla 17. Nomomath I giue yee great thankes for the vnwearied continuance of your paines and though I bee in questioning at a non-plus yet I see your inuention and memorie are not grauelled nor dryed vp parched as it were with summers drought I praie you therefore let vs still conuerse together vnder one roofe within my walles there is no Sinon no Dauus no Momus but chast learning cabboned with frugall contentment that if God doe still vouchsafe the Moone-diall of this darksome life with the reflexe of his intellectuall illumined influence this triple-wheeled clocke may still be kept in motion by the diuine agilitie of his Lawfauouring spirit A TABLE OF THE Sections or Diuisions of the principall pointes matters and questions which are handled in euerie Dialogue The Diuisions and principall contents of the first Dialogue of Prohibitions and Consultations The 1. Diuision 1. THe originall of tithes is inquired of 2. The councell of Constance is said to haue condemned Wicklife for holding tithes to bee pure almes The 2. Diuision 1 The originall of tithes is demonstrated to be by the law of God 2. God his deputies for the receipt of tithes are set downe 3. The heathens which knew not God had great regard of of paying tithes 4. Lucullus is specially commended for the paying of tithes 5. Camillus is likewise commended for his diligence in procuring tenth to be payed 6. The Romanes carefull in paying first fruits 3. Diuision 1 Whether Parsons ought to haue no more liuing then tithes 2. It is denyed by the Canonist that they ought to haue no more liuing 4. Diuision 1 A lay man by the Canon-law may prescribe in paying a speciall portion in lieu of tithes 2. The ciuill lawe agreeth thereunto 3. By the common lawe a man may prescribe in paying a temporall recompence in lieu of tithe 5. Diuision 1 Two sortes of tithes are set downe by the Canonist some feudall some ecclesiasticall 2. The Church onely holdeth conusaunce of the right of tithes by the Cannon lawe 3. The king of Fraunce his edict touching tithes is sette downe 4 That by the Canon law where the question of tithes is facti and not iuris the examination thereof may belong to a laye iudge 5. Where the suite of tithes is betwixt clergie men though it bee meerely possessorie yet it be longeth to an ecclesiasticall iudge by the Canon law 6. Diuision 1 The nature of feudall tithes is opened by the Canonist 2 Charles Martle is accused of Church-pillage 3. The Canonist telleth a strange tale of Charles Martle 4. It is thought of Nomomathes to bee but a fable 5. One of the ancient statutes of England is compared with the aforesaid edict of the king of Fraunce 6. The common law agreeth with the Canon in the attributing of the decision of the right of tithes to the spirituall iudge 7. Where one parson may sue a spoliation against the other in the spirituall court 8. The executors may bee sued in the spirituall court 9. Of what trees tithes may bee demaunded by the statute of 45. E. 3. 10. That the rent payed for tithes vpon a lease for yeares is a laye chattell 7. Diuision 1 A precept issueth with a monition vnder payne of excommunication for the due satisfaction of tithes 8. Diuision 8 The degrees which the Canon law obserueth in punishing offences in the clergie 2. Two sorts of excommunication sette downe by the Canonist 3 The compulsorie statutes of England for payment of tithes are mentioned by the barrister 4. Impropriate tithes at the common law are compared with feudall tithes 9. Diuision 1 The Ordinarie ex officio may cite men to pay tythes 10. Diuision 1 Two sortes of heretickes formatus and suspectus 2. In what cause the wife and children of heretickes shall enioy their landes 3. Heretickes by the ciuill law not punishable by fire 4. The Canonist poasteth the punishment of heretickes to the common law 5. The professor of common law bandeth backe againe the punishment of heretikes to the Canon law 11. Diuision 1 What thinges may bee tearmed Church-land by the ciuill law 2. Of Churchyards the spirituall Court shall hold iurisdiction by the common lawe 3. The right of gleabe lande is triable by the common law 4. Lands deuised not subiect to the iurisdiction of the ecclesiasticall Court 5. Suites for chattels real must be in the spirituall court 12. Diuision 1 That ius patronatus by the Canon law is determinable in the ecclesiasticall court and that it passeth by the word ecclesia 2. The diuers significations of the word ecclesia at the common lawe 3. The interest of the Parson patron and Ordinarie in the Church is shewed 4. What thinges doe make a patron by the Canon law 5. Ius patronatus is one of the proper obiects of the common law 6. That an aduowson lieth in tenure 13. Diuision 1 Punishment pro laesione fidei concerning a temporall acte is not to be adiudged in the ecclesiastical Court 2. Periurie in an ecclesiasticall court punishable in an eclesiasticall court 3. Lindwoods authoritie touching punishment pro laesione fidei in temporall matters at the ecclesiasticall law is not admitted 4 The barrister disproueth the generall citations of Bishoppes ad Sacramenta praestanda by the common lawe 5. Nomomath encountreth him in this point 6. The ciuill law agreeth with the Canon in matter
the King onely did medle with the Mines of gold and siluer that were in it l Fitz. Na. br Corrod 232. And by the graunt omnium singularum Minerarum these Mines shall not passe m Com. Inf. pur Mines ib. And though the king graunt to one the retourne of all maner of writtes yet he shall not haue the retourne of the summons of the Eschequer because that toucheth the Crowne and is not betwixt partie and partie n 22. E. 3. lib. Assis pla 49. Neither by the Law of England can any man prescribe in such thinges For it is said 1. H. 7. that no fraunchise may prescribe to hold plea of Treason and whether the king may graunt any such libertie or no the Iustices were in great doubt o 1. H. 7. 23. But 46. E. 3. it was held by Kniuet Iustice that a man might claime a fraunchise of Infangtheefe and Outfangtheefe and waife and straye by prescription but he cannot haue the chattels of Fugitiues or Felons vnlesse it be by especiall graunt because that it belongeth vnto the King as to his Crowne and therefore can not passe from him but by speciall graunt p 46. E. 3. 16. and 21. H. 6. this diuersitie is taken such thinges as accrue to the king by matter of recorde as the fines issues and amerciamentes of courtes doe not lie in prescription but in such things as belong to the crowne the title of thē doth not grow by matter of record as waife stray wrecke of the sea treasure founde and the like a man may praescribe in q 21. H. 6. praescript 44. but as these are speciall prerogatiues which are graunted to a prince so they are graunted for speciall causes by which princes must bee directed not by their owne voluntary conceits or vnsatiable desires least it happen that magna imperia be magna latrocinia for good gouernours will not imitate the lewd monarches of nations as Caligula Nero Caracalla Carinus Romaine Emperours nor Seleucus nor Alexander the great or rather the proud which did claime a generall and absolute power indefinite illimitate ouer all mē ouer all things without difference or exception which did thinke that they might giue lawes to others and not to bee bound by any which pretended that there was but one law for all common weales and that was to obey euerie thing which the king commaunded and that that was iust in regard of the subiectes which was profitable to their ruler like to that prince of pirats and robbers in Heliodorus r Heliod lib. 1. Aethiop histor Si imperij lege vtendum fuisset prorsus mihi velle suffecisset Like to that saying of Iulius Caesar the vsurper Sylla literas nescijt qui dictaturam deposuit mecum homines consideratius loqui debent ac pro legibus habere quae dico ſ Sueton in Caesar like to that of Iulianus though spiced with some sprinkle of mildnesse Polliceor absque omni praerogatiua principum qui quod dixerint vel sensuerint pro potestate authoritatis iustum esse existimant t Ammian Marcell lib. 23. or like to that sinister clause of the Popes insolent vanitie de plenitudine potestatis the last of which wordes Baldus playing withall putteth in steade of it tempestatis u Alciat reg 3. praes 8. et ad L. 2. C. de in ius voc yet I will easilie graunt that if any prince doe by sword and conquest subdue any countrie as the whole countrey is gained and possessed by this exploit so all the landes and goods of euery inhabitant in that countrey are his vntill hee did giue them or restore them vnto the former owners As by the lawe of this realme of England if a man be attainted of felonie and the Queene pardoneth him all fellonies and executions and doth likewise pardon and release all forfeitures of lands and tenements and of goods and chattels this pardon and this release cannot serue but onely for the life of the partie if the office be found for then the land is the Queenes by matter of recorde and therefore there must bee expresse wordes of restitution and as to the goodes the Queene is entituled to them without office x 29. H. 8. Br. chart de pard 52. so if it be found by office that I. N. the Queenes tenant was seised of certayne landes and dyed seysed and that W. his heyre intruded and after by acte of parliament the Queene pardoneth all intrusions in this case the entrie and offence are pardoned and released but not the issues and profits for the Queene was before entitled by matter of recorde a 33. H. 8. Br. charters de par 71. intrusi 21. Issues ret 22. for when any thing commeth to princely possession which did before belong to any inferior person it cannot bee restored to him without actuall donation And Xenophon sayeth that it hath beene a perpetuall lawe amongest all men that all thinges taken by warre whether they bee money goods or men doe belong to them which tooke them b Xenoph. lib. 7. Cyropae and Thucydides affirmeth the same to bee a common lawe to all nations c Thucyd. l. 3 howbeit the Romanes rather by mercy then rigor of lawe were onely content with the tenth parte of the goods and did remitte the residue to the conquered persons d Appian lib. de bel ciuil 2. And it hath alwaies beene accompted the propertie of barbarous nations to haue no lawe written nor ratified by common consent neither touching these rights nor prerogatiues nor other matters but onely the voluntarie conceite of the monarch as Liuie hath iudiciously obserued e Liui. lib. 37. But Aristotle maketh one exception from the rule and that is of the Spartan Kings whome hee affirmeth to haue directed their actions by prescript of lawe and Diodorus f Ar. 3. polit Siculus saith that the Aegyptian kings did first beginne to rule by a setled and determinate lawe and that all other nations were gouerned by the chaungeable wil of their soueraigne g Diodor. Sicul lib. 2. and the Romanes did after refine themselues as appeareth by Plinie speaking to Traian Te legibus subiecisti legibus Caesar quas nemo principi scripsit And presently after he saith Quod ego nunc primum audio nunc primum dico non est princeps supra leges sed leges supra principem h Plin. in Panegyr But to open and declare further the soueraigne and ample authoritie of monarches ouer the lands and goodes of their subiects though it haue beene in auncient times held and affirmed by the ciuill law that such thinges as are parcell of the law of nations could not be taken away by the prince from his subiectes and therefore they might not be depriued of their demesnes or inheritance of lands or of the property of their goods and chattels which they enioy by the law of nations i
§ 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
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
them as in Guzula a region of Affrike and in the borders of the kingdome of Fez They that dwell neare the mountaine of Maguano if they perceiue any straunger passing by who excelleth in wisedome they doe entreat him or enforce him if entreatie will not serue to deuise Lawes for them o Leo Afer in lib. de reb Affric The Romanes in all their daungerous accidents did acknowledge the gouernement of one to be the best and therefore chose a Dictator whose gouernement Appian pretilie calleth regnum negatiuum either because it denied a regall power onely in shew or because he had authoritie to denie that which the rest had affirmed Trepidi patres saith Liuie ad summum auxilium decurrunt dictatorem dici placuit p Liui. lib. 6. And againe he saith that when Hanniball did molest Italy ad dictatorem dicendum remedium iamdiu desideratum ciuitas confugit q Liui. lib. 22. and such was the reuerence of the Dictator that as the same Liuy saith Dictatoris edictum pro numine semper obseruatum r Liui. lib. 6. And Appius being Consull giueth aduise to create a Dictator for the brideling of the rage of the people affirming minas esse consulum non imperium vbi ad eos qui vnà peccauerunt prouocare liceat agedum Dictatorem à quo prouocatio non est creemus ſ Liui. lib. 2. But Monarchie hath been imbraced by the people of all Nations Democracie reiected as namely by the Medes Persians Aegyptians Parthians Macedonians Arabians Indians Aethiopians Scythians Tartarians Turkes Danes French Mosconites Polonians Britanes Affricanes and Perusians The name of a king saith Salust is primum in terris By scripture it appeareth that kings were ordeined of God for it is said in Deuteronomie Thou shalt make him king ouer thee whom the Lord thy God shall chuse one from among thy brethren shalt thou make King ouer thee and thou maiest not set a straunger ouer thee which is not of thy brethren t Deuteron 17. vers 15. And it is said of Moses He was in Israel as King when the heades of the people and tribes of Israel were gathered together u Deuteronom 33. ver 5. And aftere the returne of the Hebrewes from Babylon where they were captiues to their auncient countrie of Palestine they did obey the kinges of Persia Syria or Aegypt till Iudas Machabeus an Asmonite did recoyle from Antiochus the great king of Syria and transferred the high-pristhood and kingdome into his owne familie And as all Nations haue imbraced Monarchie so the wisest men in all nations haue approoued it As Homer a Homer lib. Iliad 1. Herodotus b Herodot lib. 5. Plato c Plat. in politic Aristotle d Lib. vlt. Metaphisic Xenophon e Xenoph. in cyrop Plutarch Philo f Plut. in lib. de creati Regis Apollonius Thyanaeus g Philostratus S. Ierom S. Cyprian Maximus Tyrius h Maxim Tyri in orat and Bartolus the deepe Ciuilian i Bartol in tractat de Regim ciuit nu 10. Lucan k Luca. lib. 1. et 2. Aquinas l Aquinas in lib. de princip Erasmus m Erasm in lib. de instit princip Tacitus S. Augustin n D. Augustin lib. 5. de ciuit dei c. 1. and S. Ambrose whose particular and plenarie assertions I omit because I hasten now to an other matter which hath not been so much discoursed of as this The seuenth Chapter Of the Law and Iustice of Armes of Leagues of Embassages and denouncing of Warre of Truce of Safeconduct Captiues Hostages Stratagems and Conquestes according to the Law of Nations IN purposing to speake at large of the Law of Armes and the members and parcels thereof I doe respect the good of the Ciuilian who in these matters is verie often employed And of the professors of common Law who shall not doe amisse in considering of these thinges that shall be deliuered for the more full opening and explaning of the Statute of 13. Rich. 2. cap. 2. which is thus To the Constable and Marshall it belongeth to haue conusans and knowledge of contractes touching feates of Armes and of warre out of the Realme and also of such thinges as touch Armes or Warre within the Realme which can not be determined nor discussed by the Common Law c. For the better entring into this discourse I thinke it best to begin with the definition of Warre which may be thus Warre is a iust contention of men armed for a publike cause for though manie thinges be done in warre without weapons yet there is no warre without the furniture of weapons and there is nothing in warre which doth not lie hidden as it were vnder the safegard of Armes and which may not be referred to the same And it must be a publike contention because warre is not the quarrelling fight and enmitie of priuate men for warre is therefore called Duellum because it is the contention of two equall persons a Varr. lib. 6. de lingu lati And therefore the Syrians as I am infourmed doe thus translate the wordes of our Sauiour What king goeth to warre against an other king b Luc. 14. in this forme What king goeth to warre against his fellow king that is an other king equall vnto him Therefore Lipsius his definition is to bee disliked in that he defineth Warre to bee force and armes against a straunge Prince or people c Lipsi in polit for by that hee maketh the outrage and violence of priuate men and pyrates to bee warre for warre is a iust contention and by this woord iust excursions and depraedations are excluded Wherefore Scipio did accompt them robbers and ringleaders to theefes which did deale by such kind of spoyle and pillage d Liui. lib. 28. 40. 41. Flor. 2. And Liuie censureth the Ligurians rather to be robbers then iust enemies because beeing poore at home they did inuade the dominions of others and were more easilie ouercome then founde out Neither did they obserue the Law of Armes because they did slaie captiues and cruellie dismember them And Iouius speaking of the truce betwixt the Turkes and Hungarians saith that by an auncient custome they did make small skirmishes and extraordinarie incursions vpon the borders if they were not resisted by the preparation of Ordinance planted against their walles e Ioui lib. 36. Warre was first brought in by necessiitie for in that decisions of Courtes of Law and the determining of controuersies by their rules could not be betwixt two straunge Princes of aequall power vnlesse they should willinglie agree to such an order because they haue no superior nor ordinarie Iudge but are supreme and publike persons therefore the iudgement of armes is necessarie because such warre saith Demosthenes is against them which can not bee brideled by Law f Demosth de Cherson But processe of suit is onelie for them which are subiect For as
THE SECOND PART OF THE PARALLELE OR CONFERENCE OF the Ciuill Law the Canon Law and the Common Law of this Realme of England WHEREIN THE AGREEment and disagreement of these three Lawes touching diuers matters not before conferred is at large debated and discussed Whereunto is annexed a Table contayning the principall Questions matters and pointes of the Dialogues ensuing Handled in seauen Dialogues by WILLIAM FVLBECKE LONDON Printed by Thomas Wight 1602. A Table of the seuerall titles of the seuen Dialogues ensuing 1. Of Prohibitions and Consultations fol. 1 a 2. Of Actions vpon the case 16. a 3. Of Debts 27. b 4. Of Accomptes 41. b 5. Of Waste done in a mans ground 49. b 6. Of Parceners 55. b 7. Of Conditions 58. b TO THE MOST GRATIOVS AND Reuerende Father in God Iohn by the prouidence of God Lord Archbishop of Canterburie Primate and Metropolitane of all England and one of the Lords of her Maiesties most honourable priuie Counsell RIght reuerend and right honourable it is now a twelue-month past sithence I presented to your Grace a comparatiue discourse of the lawes A subiect deseruing the industrious search of some diuing braine by mee superficially handled and as it were left to others to be complementally perfected but sithence by good successe and the fauour of the Almightie it hath gained the approbation of men skilfull and learned who haue perswaded and encouraged mee to make further progresse in this businesse least I might seeme coy in weighing lightly their frendly speeches careles in refusing so important a taske though to me importable as being the club of Hercules laid vpon the sholders of Hylas I haue again aduentured vpon this cumbersome prouince and drawne other furrowes in this stony soile and as I haue continued the worke so haue I continued the dedication thereof in all constant obseruance to your Lordship whose regardfull countenance toward me hath merited more at my hands then such worthlesse paines rather by the trauaile of my pen and the practicke of my contemplation to publish and notifie to the worlde my dutifull thankfull and zealefull affection toward your graces person then by the vnfeatured lumpe and disproportioned bearewhelpe of my misconceyuing miscarying endeuour to platforme a consummate and exemplarie Parallele or Trinomion which is an obiect to be aymed at and a pray to be pursued not of the Stonegall the Muskette and the Merlin but of the Eagle the Goshauke and other birdes of an higher wing and more surmounting flight and for the accomplishment thereof it were to be wished that God would vouchsafe our Innes of Court with some second Budaeus that is a third Varro whose skill in the lawes might bee exquisite whose paines extreme whose reward excellent for mine owne parte though I bee rather a rash then a voluntarie soldier in this campe yet I am bound by conscience not to eate the bread of idlenes to do for my country what I can and to labour in my calling as I may And whatsoeuer this Booke is or whatsoeuer my selfe am or whatsoeuer my prayer may preuaile with Almightie God all these if these be anie thing doe with the knee of submissiue reuerence professe vassallage to your Lordship And if the Heauens would sympathize with my hart and my hart should not by pleasing my selfe and others displease your Grace the verie Heauens should be long without you that this land may be long the better for your Lordship The God of heauen graunt this if it be his will for Learninges sake Quae duplices tendens ad sydera palmas prayeth for the same Vertue prayeth for the same Straungers pray for the same Beneficence to the riche Munificence to the poore craue the same The Church with sacred vowes The Common weale with more then common wishes implore the same What period can be better then prayer Therefore here I cast anchor and bind vp these spreading lines Your Graces most humble to commaund WILLIAM FVLBECKE The Introduction to the second part of the Parallele or conference of the Ciuill Law the Common Law c. NOmomathes when the first conference of the three Lawes was finished gaue himselfe to his recreation which was the hunting of the Bucke an exercise commendable for Gentlemen and vsed in auncient time of them whose high estates had entitled them with the names of Heroes Semidei But when winter began to shed his cold influence and to replenish the aire with congealing vapours to make the earth as it were a naked beldam and to cause the dugges of the sea to swell with surging billowes Nomomathes retired to his bookes and gaue a farewel to the fields betrothing himselfe that winter to his studie And because the iuice of the late conference of the Lawes had turned to good bloud in his mind he meant to recontinue the conference of which he had a more strict regard then of the former For when it was rumord in the countrie where Nomomathes dwelt that such a conference was had and afterward certain copies were dispersed and diuulgated some were wel pleased some were discontented with the Dialogues Pro captu lectoris habent sua fata libelli Amongst the rest that were discontēted was a Parson a plaine countrie man and a gentle man not vnlearned who when they had heard that Nomomathes meant to reuiue and recontinue the conference purposed to go to his house and to open their mindes as they conceiued of the conference Their purpose they followed and to the house they came where beeing kindly and curteouslie entertained of Nomomathes and in their by-talke glauncing at the Dialogues Nomomathes willed them to spare no speech and professed that hee would willinglie admit their censures and that he would heare them in order They seeing his patience prepared deliuered in few words their priuate conceits And first the gentleman tooke exception to the discourses of Codicgnostes for that he in the first Dialogue discussing matters of common weale and of the Ciuill Law did forget to handle verie important matters and to his profession not impertinent The first was because hee did not treat of Dettes a thing in the Ciuill Law not omitted and yet in no Law sufficiently debated Secondly he speaketh nothing of Accompts or reckonings wheras that is a large and frequent title in the Ciuill Law Lastly speaking ex professo of the originall of Tenures and seruices in the fourth Dialogue he speaketh verie little of Conditions which verie often are the constituent causes of these Seruices With this he concluded and then spake the Parson who did expostulate with the Canonist some iniuries because the Canon being so full and pregnant in matter of Tythe hee did not vouchsafe to speake anie one woord of Tythes And whereas we haue Parsons said he haue much impediment by Prohibitions and many times wrong when they come to triall for the countrie people which are the Iurors who haue no more desire to paie their Tythes then the Diuel hath
to lose his entercourse with the seauen deadly sinnes the Pope to be a Protestant and a Beare to go to the stake If any Prohibition concerning Tythes come to be tried by them ar as sure to passe against the Parson as an old chimney is sure of blacknes But let any matter come to be tried touching common which concerneth themselues and their owne profit they will as surelie go with the commoner as the cloudes goe with the Northeast wind Therefore it seemed to him to be verie conuenient that because the Canon doth so much fauour Parsons that therefore the Canonist especially should haue debated at large of these matters And he thought the Canonist speaking so little of them in the whole discourse was much troubled with the tooth-ache the Canonist here being somewhat cholericke interrupted him and said he iangled for he said there were manie thinges proposed in the Dialogues which the Canon Law neuer medleth with all neither hath it so much tasted of them as the dogge licking of Nilus And in some thinges which were in the Dialogues the Canon Law hath nothing els but which the Ciuill Law hath so that he should not haue kept decorum but should haue thrust his sicle into the haruest of Codicgnostes if he should haue encroched vpon such thinges as the Canon Law hath as it were at the second hand streined from the Ciuill But said he as touching Tythes if any question had been proposed I would not haue been defectiue in the handling them at large Then the poore Countrie man made a lowe conge and Nomomathes bowed vnto him as being willing to heare him Sir quoth he I am by your worships fauour a poore countrie yeoman dwelling neare a place called Aitipolis and my yeares are more then my knowledge my patrimonie better then my education and my hand more nimble then my toong And I haue had a verie great desire to haue some vnderstanding of Lawe because I would not swim against the streame nor be vnlike vnto my neighbours who are so full of Law-points that when they sweat it is nothing but Law when they breath it is nothing but law when they neese it is perfite law when they dreame it is profound law The booke of Littletons tenures is there breakfast their dinner their boier their supper and their rere-banquet Euerie ploughswayne with vs may bee a Seneschall in a Court Baron Hee can talke of Essoines Vouchers Withernams and Recaptions And if you controll him the booke of the Groundes of the Law is his portesse and readie at his girdle to confute you Surelie sir my neyghbours are full of sension and tention and so cunninge that they will make you beleeue that all is gold which glistereth So that for a man to be amongest them and to haue lyuing and want Law is as if a man should haue bread to eate and want teeth to chew it Which occasions mooued me at the first to seek for some skill in Law and amongest other bookes I bought The Conference of Law whereof hath been spoken and casting mine eie vpon the diall of common wronges and trespasses I wondered that he which maintaineth the Common Law amongest his common wronges and trespasses he spoke nothing of Wast done in a mans ground and verie little of an Action vpon the case which is a wheele much turned about in the place where I dwel And though hee hath deliuered much of Iointenants and Tenants in common he speaketh either little or nothing at all of Parceners Now manie of vs countrie people marrie verie often with landed women and therefore would gladly be seene in that learning Truely Sir I bought the booke for my more vnderstanding of the law and for the noueltie and because it was in English yet there is a vengeance deale of Latin in it which put mee to the cost to buy a Thomases Dictionarie but it is no great matter for that for it wil serue my sonne Reginold when he shall bee tenne yeares olde or thereabout But I pray you sir at the next conference let vs haue somewhat of these matters which I haue mentioned vnto you When hee had ceased to speak Nomomathes grauely and with aduise censured their censures and spoke in this manner I see now saide he the prouerbe to be verified Quot homines tot sententiae there be as many minds as there bee men And though ye haue deliuered your exceptions in sportfull manner which as I doe not greatly dislike so I do not greatly delight in yet I must confesse euerie of them doth flie to the marke and the blame resteth vpon me who might haue proposed these matters to be discussed but because the lucre or losse of the conference was to redownd wholly to mee in all correspondencie of reason and not to others but by my curtesie I thought it a more conuenient course and more free and ingenious to follow the threed of mine owne choise then the vncertaine winge of popular conceit Againe all things cannot be handled at all times and nothing is to be intruded into such a conference which doth not relice to the sūdrie palates and tastes of these seuerall lawes For many things there be in the common law which hath not any affinitie with any thing in the ciuill or Canon But because your motions are so cōsonant to reason so directly respectiue to your vocations and functions which in no well ordered cōmon weale ought to be loosely regarded therfore I protest vnto you in sinceritie that if all these things which you haue mētioned may be cast in the molde of a tripartite discourse the secōd cōferēce shall bring forth that which you haue before conceited they thanking him for this kindnesse departed he immediatly questioned of the Lawyers whether they could bring into the compasse of their seuerall reckonings all these matters abouesaid who anusweared that they could Then said he because the Canonist hath bene so deeply charged we will begin with tiths which he is reproued for omitting Thē the Canonist said that they might be discoursed vpon according to the seuerall lawes vnder the title of prohibitiō That title thē said Nomomat shal be the first the second of actions vpō the case the third of debts the fourth of accounts the fift of wast the sixth of parceners and the seuenth of cōditions wherfore bend your selues wholly to this taske and let these things be diligently searched considered of you and for this purpose take the deliberation of twentie daies which being had and the twentie daies being run out Nomomathes did thus parle with Canonologus The first Dialogue of the second part of the Parallele or conference of the Ciuill Law the Canon Law and the Common Law of this Realme of England Of Prohibitions and Consultations NOmomathes I am 1. Diuision verie desirous Canonologus to know the first and primigeniall existence of Tythes 1. The originall of Tythes is inquired of that their originall being knowne their
Layman may prescribe in paying a speciall portion in lieu of the whole tythe as to pay the twelfth part or the twentieth part t Part. parisconsil 25. vidiat 3. nu 21. vil 4 Yet if the Minister or Curate may not be maintained by the residue of the Tythes he may sue for the whole Tythe u Augel clauus in versic 10. And if there be a composition betwixt the Curate and his Parishioner that hee shall pay no tithe this compositioÌ„ is meerly void otherwise it shold be if the composition had bene that he should pay a certaine portion of tythe as the sixtenth or twentith part or that he should pay no tythe for certain things for though the coÌ„position were before the Bishop yet it could be no otherwise a Text in c. venerab de confir vtil yet according to our law the Bishop may by way of composition alter the place or time of paying tythes Codicgn To this which you haue said our 2 The ciuill Law agreeth thereunto law agreeth we haue an expresse rule sacerdoti petenti decimas non potest obijci compensatio b Ludouic de Rom. in singular and the reason is because fisco petenti tributa non potest obijci compensatio c l. 3. 4. c. de com pen. le aufert §. qui compensati ff de iu. fisc Therefore muchlesse may compensation be obiected in tythes quae deo debentur d Gazalup in ver Decim Anglonomop But by our law if a man graunt 3 By the commoÌ„ law a man may prescribe in paying a temporall recompence in lieu of tithe parcell of his mannor to a parson in fee to be discharged of tithes he maketh an indenture therof the parson by assent of the ordinarie graunteth to him that hee shall be quit of the tythes of his mannor for this parcell of lande now if he be impleaded for the tithes therof he may haue a prohibition and if this deed haue bin made from time out of minde and he hath bin continually quit of the tythes of that mannor he may haue a prohibition in such case if he be impleaded and so likewise it is if such discharge grow by reason of a composition e Fitzher N. B. 41. G. 43. K. 8. E. 4. 13. Nomomath I pray you let me know in what 5 Diuision cases tithes are recouerable at the spirituall law and wheÌ„ at the commoÌ„ that so I may perceiue the diuersitie of the iurisdictioÌ„ of these Courts which in it self seemeth to me to be somewhat perplexed difficult vnles it be opened explaned by cases accommodate to the purpose Canonol There be two sorts of tithes being parcel of the inheritances possessions of laye 1. Two sorts of tithes are set downe by the canonist some feudall some Ecclesiasticall meÌ„ of the first by your fauor I will speak first then discend to the other when the right of tithes is in question because that is a meere ecclesiasticall subiect the church hldeth conusance 2. The Church onelie holdeth conusans of the right of tithes f gl in c. ex tenor de for compe there is an edict made by Phil. the 4. K. of France touching tithes in this manner De 3. The King of Fraunce his edict touching tithes is set downe cognitione decimaruÌ„ non feudalium in petitorio vel postestorio praesertim inter ecclesiasticas partes geÌ„tes nostrae se nullatenus intromittant g Rubriâ— de decim And this 4. When the question is facti and not iuris the examination of tythes may belong to a lay iudge is according to the rule of our law de causa spirituali solus ecclesiasticus cognoscit vbi quaestio sit iuris h c. tuam de ordin cogniti but where the questioÌ„ is facti not iuris the examination of the cause may belong to a laye iudge i Text in CleÌ„ dispendios de iudicum c. teter de iur caluÌ„ c. fin de rer permut but if the controuersie be mixt and the propertie is as wel to be decided as the possession the matter is to bee discussed before an ecclesiastical iudge k Abb. c. literas rubric de iudic num 51. wheÌ„ tithes are leased or dimised vnto a man he may demand the tithes before a lay iudge vnles there be contraria fori praescriptio as there is in the citie and diocesse of Millaine l Gemin in c. vlt. in fide for competen in 6. gloss in c. vest de loc monet c. 8. de decim yet where the coÌ„trouersie is betwixt these that be meere clergy men though it be a possessory suyte yet it is to bee decided by an Ecclesiasticall iudge m Nauar. in repet cum coÌ„tingat Neyther may lay men Clergie men though it be meerely possessorie yet it belongeth to an Ecclesiasticall iudge be compromittes of a decimall cause if the right come in question n Concil Barel tract moder de compromis §. 2. gl 1 num 324. but such tythes as be not spiritual but as I haue termed them before feudall may be ordered and disposed by lay compromittees Nomomath You haue satisfied me Canonologus touching the point of Ecclesiastical iurisdiction where spirituall tythes are to be demaunded Now I pray you shew me the nature 6. Diuision and original of these feudall tythes which as yet are more obscure Canonol Their nature shall appeare by 1. The nature of feudall tythes is opened by the Canonist their originall which was thus Charles Martell after that he had obtained an happy victorie against the Saracens who marching from Spaine did spoile and waste the lands goods and temples of the French did meane to recompence his nobles peeres of his realme with some great reward and that hee might testifie his liberalitie towards his said nobles by the consent of the Bishops of his kingdome he did giue vnto them the tythes of manie goodlie Churches taking a solemne oath that if he liued any while he would make the Church a large amends for this matter which notwithstanding hee did not but not long after as Guagni reporteth for that sacriledge he died and was carried to hell and his bodie being intombed in the temple of Saint Dennis within a few yeeres after there was seene vpon his â— The Canoâ—â—â—t 〈◊〉 a strange tale of Châ—â—lâ—â— Marâ—â—ll graue a great serpent it might be it was the diuell in the likenes of a Serpent but shortlie after there was neither bodie nor bones of Charles found in that place and therefore some thought that hee was carried bodie and soule Gâ—â—â—â—â—gâ—i in vâ—â— Car. Maâ—â—ell to the diuell for that cause the wiseman hath said it is a destruction for a maÌ„ to deuoure that which was sanctified c. nn Prouerb c. 20. v. 2â— Nomomath It is not good to enter into the counsailes
of the Almightie The Bethshamites were not vnpunished for their prying into the Arke And the prouerbs of the heathens doe admonish vs not to bite the dead nor to wrestle with spirits It is not good to charge the dead with any other thing theÌ„ that which happened in their life for whosoeuer are departed this life stand or fall to their Lord who is the iudge of the quicke and dead and I think 〈…〉 thought of Nomomath to be but a fable the report of the serpent to be but a meere fable discrediting the author and dishonoring that worthie protector of the Christians but what say you Codicgnostes of these matters Codicgnostes I doe not remember any thing in our lawe repugnant to that which Canonologus hath aboue deliuered Nomomath What say you Anglonomophilax Anglonomoph Our law doth neyther fullie agree with that which Canonologus hath vttered neither in verie many things disagree from it as by your patience I shall at large demonstrate Wee haue a rule in our statute-law not much differing from the edict of the King of Fraunce aboue recited by Canonolog In decimis 5 One of the ancient statutes of England is compared with the edict of the king of Fraunce mortuarijs quando sub istis nominibus proponuntur prohibitioni nostrae non est locus dummodo decimarum illarum quantitas non ascendat ad quartam partem bonorum ecclesiae o Artic. cler c. 2. 10. H. 4. 1. Registr 49. b. And as to the diuersitie vsed in the Canon law where the question is facti and not iuris and where it is 6 The Canon law agreeth with the coÌ„mon attributing of the deuision of the right of tithes to the spirituall iudge de petitorio and not de possessorio M. Fitzherbert hath this assertion that if any parishioner doe disturbe or hinder a Parson or Vicar in the carying away of his tithes which is an iniurie in the fact whereas the carriage is through the waies and passages vsed and accustomed the Parson or Vicar may sue in the spirituall court for this disturbance p Fitzh N. B. 51. A. for in this case the spirituall Court proceedeth vnto excommunication q Registr 46. b. 47. a. One Parson may sue a spoliation against 7 Where one parson may sue a spoliation against the other in the spiritual court an other in the spirituall Court for the taking of tithes which belongeth to his Church though they claime by seuerall patrons and by seuerall presentments but this is to bee vnderstoode where the said tenth doeth not amount to the value of the fourth parte of the Church for otherwise the partie greeued may haue an Indicauit because the title of the patronage may come in debate But if they claime by the presentment of one patron theÌ„ a spoliation may be sued although the profits or tithes doe amount to the fourth part or third part or the moitie of the benefice because in such case the title of the patronage shall not come in debate And if a prohibition be sued hereupon the partie may haue a consultation r 2. H. 7. 12. Br. prohibit 16. Fitzh N. B. 51. C. 37. E. 45. B. 30. E. and if a man haue certaine sheepe depasturing and lying within the precinctes of the parish of N. within a yeare the parson of that parish may sue in the spirituall court for the tithe wooll of these sheepe and if the partie sue a prohibition hee may haue a consultation Å¿ Fitzh N. B. 51. D. for the suite for tithe doth properly appertaine to the spirituall Courte as by statute 8 The executors may be sued in the spiritual court it is ordeyned t 1. R. 2. c. 13. 24. H. 8. c. 12. 2. E. 6. c. 13. and it appeareth by the Register of writtes that if the pattie which withholdeth tithe make his executors and die the executors may bee sued u Registr 48. And if a man detaine tithes for his sheep which went in the parish of N. and were depasturing and couching there so long time if the partie die the parson may sue his executors for these tithes in the spirituall Court And so the Parson may sue the executors for the arrerages of tithes due by reason of certaine milnes of the testator in the life of the testator a Fitzherb N. B. 51. G. H. And the parson by prescription may in the spirituall Court claime tythes vitularum lacticiniarum of the beasts pasturing in his parish as namelie milke butter and cheese b Fitzherb ib. Regist 48. and the tythes of wooll and the tythes of honie and waxe c Fitzherb ib. and for these hee may sue in the spirituall Court and by manie authorities in our law the right of tythes is tryable in the spiritual Court d 22. E. 4. 24. 38. H. 6. 21. 22. Assis 75. But where a maÌ„ is sued for tythes of great trees aboue the age of twentie yeeres a prohibition will lye by the statute of 45. 9. Of what trees tythe may be demaunded by the statute of 45. E. â— E. 3. but of horne beames salowes and the like of what age soeuer they be being not apt for timber tythes ought to be payed e Ploid Com. en le case enter Soby Mol. And the branches of trees which be priuiledged from tythes shall be also priuiledged and the suit for the tyth branches of trees which are not priuiledged shall be in the spirituall Court as well as the suit for the tythe of the trees themselues for as Bracton saith non pertinet ad iudicem secularem cognoscere de ijs quae sunt spiritualibus annexa f Bract. lib. 5. c. 2. And thus it may appeare that as soone as the right of tythes commeth in debate the lay Court ought to cease and shall be out of iurisdiction and if it may appeare that the right of aduowson commeth in debate the spirituall Court shall be out of iurisdiction But if the parson of N. doe lease for yeares a certaine portion of his tythes rendering a rent hee shall haue an action of Dette for the rent if it be behind â—â— That the rent paied for Tythes vpon a lease for yeeres is a lay chattell at the common Law and not in the spirituall Court because the money is a lay chattell g 8. R. 2. Iurisdict 2â— D. 5. 106. And if the Parson take Oates or other graine as his Tythe and an other taketh them awaie from him the nature is altered and now they are become a lay chattell and the Parson shall haue an action of Trespas at the common Law h 35. H. 6. 39. Yea by the booke of 2. Ed. 4. if they be seuered from the ix part and not yet in the actuall possession of the Parson Yet if a stranger carie them awaie he may haue an action of Trespas i 2. E. 4. 15. 20. E. 4. 3.
But he may not in any case distreine for Tythe for there is not any land in demesne vpon which the distresse may bee made k 11. H. 4. 40. But if in such case debate happen betwixt Parson and Vicar so that the right of Tythes is to be tried the suit is to be mainteined in the spirituall Court l 35. H. 6. 39. 47. Nomomath But what if Tythes be not duelie paied what punishments are there to be inflicted by your Lawes Canonol In the demaunding Tythes if iudgement be giuen for the demaundant there 7. Diuision â— A Precept issueth with a monition vnder paine of excommunication for the due satisfaction of Tithes must a precept issue with a monition vnder paine of excommunication if he doe not within a certaine number of dayes pay or satisfie the demaundant so much Tythe And the Law is that against such as be stubborne Brachium seculare inuocari potest m Gl in verb. praemonit in cle 2. de iud c. postulaâ—sti de homâ—ci Codicgn We haue nothing in our Law contrarie to this Nomomath I pray you shew me Canonol the qualitie and force of Excommunication that I may be better satisfied Canonol The Canon Law doth obserue eight 8. Diuision 1. The degrees which the Canon Law obserueth in punishing offences in the Clergie degrees in proceeding to the correction or punishment of them of the Clergie in punishing any offence whatsoeuer The first is a monition vt desistant n c. vni de vit et hone cler lib. 6. The second excoÌ„munication si non paeniteant o c. cler arma de vi et hon cler 3. A suspension of their benefice si differant p c. praeterea de vsu 4. The depriuatioÌ„ of their benefice si perseuerent q c. cum delic in sin de accusa 5. A suspension of their orders or degrees si obstinatè conteÌ„dant r c. cum non ab homi de in si 6. A thrusting or intruding of theÌ„ into a Monastery or Religious house si indurati existant 7. Perpetuall imprisonment si incorrigibiles existant Å¿ d. c. cum non ab homine 8. A solemne degradation in the preseÌ„ce of teÌ„poral officers t c. non de verb. in si And this order of punishment is alwaies obserued vnlesse the crime be so great heynous and scandalous that this solemnitie is omitted and then there is a summarie and immediate proceeding to degradation and to the deliuering of the party vp to the secular power But there be two sorts of Excommunication the lesser is not penall but medicinall is proporcionable 2. Sortes of Excommunication are set downe by the Canonist to that lesser thunderbolt which the Poet describeth Est aliud leuius fumen cui dextra Cyclopum Sauitiae flammaque minus minus addidit irae tt Ouid. in Metamorph. It doth rather in some small proportion terrifie then in any great measure hurt Yet here a distinction is to be vsed for either the sentence of the lesser excommunication is pronounced ab homine and then it is medicinable or els it is pronounced a Canone as when a man is ipso facto excommunicate for then it is penall u c. medicinalis de se exco lib. 6. But the sentence of the great excommunication doth anathematize and is alwaies penall a d. c. medici All these things may be thus resolued either an ecclesiastical person doth coÌ„mit some small offence and then he is deposed not depriued but for a time suspended b c. cum delic de accus But if he coÌ„mit grieuous offeÌ„ces then he may be deposed c d. c. cum non ab homi But if he commit faults most grieuous such as by the Ciuill law he shall suffer death for then he may be condemned ad perpetuaÌ„ carcerem to haue imprisonment during his life d c. l. de here lib. 6. Excommunication is tearmed in our Law mucro Episcopi and therfore it is said in the Canon law foelici mucrone Episcopi sacerdotum piacula resecentur e 16. q. 2. c. visis in si But the vtmost punishmeÌ„t of a lay man for not paying of Tithes or other misdemeanour punishable by the Canon Law is excommunication onely after which issueth a writ of Excommunicato capiendo at the Common Law Anglo It is true but we haue compulsarie Statutes 3. The compulsorie Statutes of payment of Tithes are mentioned by the Barrister made for the paimeÌ„t of Tithes As namely the Statute of 27. H. 8. ca. 20. which is That if the Ordinary of the diocese c. do for any conteÌ„pt contumacy disobedience c. of the party not paying his lawfull Tythe make information or request to any of the Kinges most honorable Counsell or to the Iustices of the peace of the shire c. to order or reforme any such person c. that then he or the Kinges said honorable Counsell or such two Iustices of peace whereof one to be of the Quorum to vvhom such information or request shall be made shall haue full power and authoritie to attache the said person c. and to commit him to vvarde there to remaine vvithout baile or mainprise till he haue found sufficient suertie c. to giue due obedience to the proceedings decrees and sentences of the ecclesiasticall Court c. And the like Statute was made 32. H. 8. cap. 7. And by the Statute of 2. Ed. 6. cap. 13. it is prouided That if any person carie avvay his Corne or Hay or his other prediall Tythes before the Tythe thereof be set forth Or vvillingly vvithdraw his Tythes of the same c. that then vpon due proofe thereof made before the spirituall Iudge c. the partie so carying away vvithdrawing c. shall pay the double value of the Tythe so taken lost vvithdrawen c. beside the costes and charges of the suit c. And as to these Tythes which Canonol hath aboue called feudall which wee call impropriate 4. Impropriate Tythes at the common Law are compared with feudall tythes it is ordeined by the Statute of 32. H. 8. c. 7. that they may bee demaunded by a Praecipe quod reddâ—t Codign Our lawe in all the matters abouesaid consenteth with the Canon-lawe Nomomath But what if a man will not pay his Tythes in the time of vacation of a benefice Anglonomoph Then the Ordinarie ex officio 9. Deuision may cite him to paie them f Registr 51. Fitzherb nat bre 52. G. 10. The Ordinarie ex officio may cite men to pay Tithes Canonol That seemeth not to be repugnant to our Law g Goodal lib. de lib. Eccles Codign Nor to ours Nomomath Now that you haue proceeded so farre in matters of iurisdiction I pray you let me mooue you for other doubtes concerning the same point Whether is the crime of
shall hold iurisdiction by the common law plaintife it was held by the better opinion that in this case wherein the close supposed in the writte is admitted by both parties to bee a churcyard the spirituall Court onely should hold iurisdiction a 13. R. 2. iurisdict 19. And an assise likewise was brought of a house against a Parson who pleaded in bar that he was Parson of P. and that the house demanded was parcel of his said church from time out of mind and that there was sepulture of deade persons there wherefore Perseis opinion was that the court temporall ought not to holde plea in this case b 44. Ass pl. 8. but if 3 The right of gleabe land is triable by the common law the Parson of A. and the Parson of B. do contend in suite for a parcell of lande the one claiming it to bee his gleabe the other his it hath beene held in this case that the spirituall court shall not hold iurisdiction c 19. H. 6. 20. And Bracton likewise affirmeth that a thing giuen in frankalmoigne remaineth laye fee d Bract. li. 5. c. 16. and by 4 Lands deuised not subiect to the iurisdiction of the ecclesiasticall court our lawe a prohibition lyeth for chaunteries chappels prebendes and vicarages e Fitzh N. B. 40. G. 35. b. and if a man deuise lands or tenements deuisable the partie to whome the deuise is made shall not sue in court spirituall and if he doe the other shall haue a prohibition and therefore as Bracton saith the deuisee may enter without the 5 Suites for chattels reall must be in the spiritual court licence of the executor f Bracton vbi supr Perk. tit deuis but if a deuise bee made of goods and chattels reall as of a lease for tearme of yeares or of a warde there the suite must be in the spirituall court g Fitzh N. B. 43. G. and if a termor of certaine land doe deuise his croppe and dye the spirituall court shall hold plea for this croppe h 8. H. 3. prohibit 19. and if a man deuise corne or other goods to a man and a straunger will not suffer the executor to performe the testament in this point they may sue the stranger hereupon in the spirituall court but if a man take goods deuised out of the possession of the executors the law is otherwise for then they shal haue an action of trespasse at the common lawe i 4. H. 3. prohibit 28. but if a man sue another in the spirituall court for a rent reserued vpon a lease of tithes or offerings a prohibition wil lie in such case because it is a laye rent k 44. E. 3. 32 Nomomath Let me now know Canonol whē 12. Diuision a man graunteth to one ius patronatus of the church of Dale if this title bee controuersed in question whether shall the ecclesiasticall court or temporall hold iurisdiction Canonolog Surely I thinke it is determinable 1 That ius patronatus by the Canon law is determinable in the ecclesiasticall court and that it passeth by the word ecclesia in the ecclesiastical court because the right of patronage may passe by the word ecclesia as if a man said vnto me dono tibi ecclesiam S. Petri in Dale the aduowson of the church doeth passe l c. quod autem de iur patronat Anglonomop The word ecclesia is otherwise taken in our law for it is most commonly vsed for a place wherein baptisme and the sepulture of mens bodies is celebrated m 34. E. 1. quar impedit 187. And M. Fitzherbert saith that by this word ecclesia is meant onely a parsonage n Fitzh N. B. 32. G. and therefore if a presentment bemade to a chappell as to a church by the name of this word ecclesia this doth change and metamorphize the nature of it and maketh 2 The diuers significations of the word ecclesia at the common law it presently a Church o 17. E. 3. 58. 47. E. 3. 5. 21 13. H. 4. Briefe 870. and because by this word church is meant a church parochial therfore if a man haue an oratory or chappel within his mannor of Dale and he giueth part of the demesnes of the said mannor to a Chapleine for life to sing there yet hee hath not by this made it a Church but it remaineth still an oratorie and his freehold for here was no effectuall operation of lawe to force such a chaunge p 36. E. 3. 13. But if a writte bee brought of a Church in Dale and in Dale there bee both a Church and a Chappell yet the writte shall stand good for the reason aboue shewed q 20. E. 3. Brief 684. 13. H. 6. 4. 9. E. 3. 451. 22. E. 3. 2. 8. H. 6. 33. and sometime it signifieth the Church which consisteth of stones walles and roofe r 8. H. 5. 4. Rolf. and sometimes the demesnes and profits of the benefice ſ 45. E. 3. 4. but verie seldome if at any time it is vsed for ius patronatus But if as you say the patronage shold passe by these words dono ecclesiam in all reasonable vnderstanding the patronage is to be distinguished frō the Church or benefice And therefore Pollard 12. H. 8. t 12. H. 8. 7. Prior. de Hunting c. doth well 3 The interest of the patron parson and ordinarie in the church is shewed distinguish the interest of the parson patron ordinarie as in a seuerall thing the parson saith hee hath a spirituall possession in the church the ordinarie hath charge of the church to see the cure serued the patron ius presentandi to the church which being well weied doth clearely bewray the imbecilitie in consequence of your proposed argument Canonol neither can you by any solide reason of law entitle the spirituall court to iurisdiction in this case as I shall hereafter shewe Nomomath What say you of this matter Codign Codign Wee rely wholy for these matters vpon the Canon law which in these pointes is verie pregnant and copious Canonolog It is so in deed but by that lawe ius patronatus is meerely spirituall and not temporall as Anglonomoph would perswade for it is wholly after a spirituall manner carried ordered for though the patronage do arise of three things the foundation the edifying and 4 What things do make a patron by the Canon lawe the endowment u 26. q. 7. filijs ca. quicunque 18. q. 2. Abbat according to the ancient saying patronum faciunt dos aedificatio fundus yet it is no temporall thing because though a man bee condemned and his goods bee confiscated yet hee shall not lose his right of presenting x Gl. est in ver subiect § rursus in fi c. pastor al. in Cle. de re iudi neyther is this repugnant that to a Church parochiall hee may present to a Church
collegiate the lawe is that though his assent goe not to the election of the partie who is to be the gouernor yet our law commandeth that after the election it should bee registred a c. nobis de iur patronat Yet it seemeth to be spirituall because if a laye patron doe present one and after will varie and present another nowe it is left to the arbiterment of the Ordinarie which of them hee will admit b 2. dist c. ecclesiastic et c. quod autem de iur patronat and hee which is so refused by the Bishop hath no remedie against the second presentee but he may haue remedie against the Bishop for his vniust refusall or wrongfull delay and his remedie in this case is a duplex querela against an inferior Ordinarie and this must be handled in the spirituall court c Pastoralis co tit Anglonomoph Yea but the reason of that is giuen in our lawe because the right of patronage shall not come in debate d Regist 55. Canonol This is petere principium but let me proceed There is such a mutuall correspondence betwixt the patron the Church that they may not bee seuered either in gouernment or in iurisdiction for though the patron hath aliquid honoris as we said because he is to haue the first place in the procession e 16. q. 7. piae mentis yet hee hath also aliquid oneris for he is bound by our lawe to defend the Church from all oppressions f 17. q. 7. filiis and in that regard if he fall into pouertie he is to be mainteined de bonis ecclesiae g Praealleg c. filijs Anglonomoph These circumstances do not inferre the conclusion which you labour for It shall appeare to you Canonologus by our law and by verie strong reason that the right of patronage 5 Ius patronatus is one of the proper obiects of the common law or the aduowson of the Church is one of the proper obiects of the common law First it is a rule with vs that if a man be sued in the spirituall court for a laye fee a prohibition will lye that is for lands and tenementes as M. Fitzh well expoundeth it h Fitzh N. B. 40. I. Now that an aduowson is a tenement lyeth in tenure may 6 That an aduowson lyeth in tenure by seuerall authorities be auouched and therfore a tenure ought as well to bee found by office of an aduowosn as of a mannor i 14. H. 7. 28. â— Bri. 17. E. 3. 10. and a lease for yeares may be made of an aduowson and if the lessee alien in fee this is a disseisin to the lessor k 7. E. 3. 11. and 15. H. 7. all the Iustices agree that an aduowson lyeth in tenure l 15. H. 7 8. And for that cause if one hold and aduowson of the king and graunt it to another without licence the grauntee shall pay a fine m 21. E. 3. 31. 20. E. 3. Estoppel 187. And generally vpon any surmise that a man is sued in the spirituall court for a temporall thing a prohibition will lie n Fitzh 43. h. Now the aduowson is temporall though the admission institutioÌ„ be spiritual Nomomath Let me aske you further this question 13. Diuision if a man sweare to me that he will make me a feofement of certaine land before such a day and he doth it not whether may I sue him in the spirituall court pro laesione fidei Anglonomoph No for if you do a prohibition 1 Punishment pro laesione fidei concerning a temporall acte is not to be adiudged in the ecclesiasticall court will lie by our law because the acte which is to be done is a temporal acte is to be tried by the commoÌ„ law o 38. H. 6. 29. Fitzh 43. D. 2. H. 4. 15. 24. E. 1 Br. praemuni 16. D. S. lib. 2. c. 24. and if men be sworne to giue true euidence to a iurie and they doe so whereupon certain persons be endited of some misdemeanor if they which be endited do sue them that gaue euidence against them in the spirituall Court for this diffamation doone with an oath they may make a prohibition p Fitzh N. B. 42. F. 11. H. 4. 88. prohib 12. but if any periurie be committed in a spirituall 2 Periurie in an ecclesiasticall court punishable in an ecclesiasticall court court there the spirituall court shall haue iurisdiction q Stat. de circumspect agat 13. E. 1. 5. Elizab c. 23. c. 9. but the Ordinarie in temporall cases maye punishe the partie which hath committed periurie ex officio though not at the suite of the partie r 20. E. 4. 10. and if a woman haue title to sue a Cui in vita and she maketh oath to the tenant of the land that she will not sue any cui in vita against him if after she sue a Cui in vita and thereupon the tenant sueth her in the spirituall court pro laesione fidei shee may haue a prohibition because the oath toucheth a temporall thing namely land Å¿ Fitzh N. B. 42. â— 4. H. 3. prohibit 19. Bracton lib. 5. c. 2. And if a man sweare to one that hee will pay to him twentie pound which he oweth him at a certaine day and at the day hee fayleth of the paiment hee may not now be sued in the spirituall court for the periurie because an action of debt lyeth at the commoÌ„ law for the principal t 22. E. 4. 11. H. 4. 88. prohib 12. But 34. H. 6 it is saide that if a man buy an horse for fiue pounde soluend such a day and sweareth to make paiment at the day but when the day is come fayleth of payment an action of debt lyeth at the common lawe and an other at the spirituall lawe pro laesione fidei and a writ of prohibition lyeth not because they be two distinct thinges u 34. H. 6. 30 Br. prohib 2. yet 2. H. 4. is that a prohibition lyeth in such case x 2. H. 4. 10. Canonolog But Lindwood sheweth that a libell may be so framed that no Prohibition will lie in your last recited case as namelie the libell may be That the partie hath damnablie broken his oath pretending that he was not bound by it a Lindw in capit aeter sanctio verb. periur Anglonomoph That is but a weake support 3. Linwoods authoritie touching punishment pro lâ—sione fidei in temporall matters at the ecclesiasticall Law is not admitted of the spirituall iurisdiction for it is one thing to be punished for periurie an other for his irreligious pretence And surelie I take it to be agreeable to all Lawes that pretenses and intents are not punishable but onelie in crimine laesae Maiestatis And a man may sue a Prohibition directed to the Shirife that he shall not permit nor suffer the Queenes lay
subiectes to come to anie place at the Citation of Bishops ad faciend'aliquas recognitiones vel sacramenta praestanda nisi solùm in causis matrimonialibus et testamentarijs And M. Fitzherb thinketh that 4. The Barrister disproueth the general citations of Bishops ad sacramenta prestanda by the common Law these generall Citations which Bishops make to cite men to appeare before them pro salute animae without mentioning any speciall cause is against Law b Fitzh nat bre 41. A. Nomomath Why may they not vse such generall Citations as well as a Iustice of peace 5. Nomomathes encountreth him in this point by your Law may make a precept to bring one before him to aunsweare to such things as shall be obiected against him without shewing any speciall cause c Crompt Iust p. 131. et 132. And if by your Law they can receiue no oath but onelie in matters Matrimoniall and Testamentarie then it must needs be intended that though their processe be generall ad sacramenta praestanda yet it is specially meant of Matrimoniall or Testamentarie causes For I remember a good rule in the Canon Law to this purpose Quando constat de lege sufficit generalis allegatio d 28. q. 1. sicut enim in si But what saie you to this matter of oathes Codicgnostes Codicgn Our Law differeth little or nothing 6. The Ciuill Law agreeth with the Canon in matter of Oathes from the Canon law in the discourse of oathes And as the Canonistes wee make two sortes of Oathes Conuentionale and Iudiciale Conuentionale or Promissorium is when we sweare de futuro that we will giue some thing or do some thing c e Bartol in l. si quis ff de si dâ—nstrum Iudiciale is when the Iudge for the triall of the truth of a controuersie and the infourming of his owne conscience vrgeth the partie to take an oath f ff eo tit l. ius iurand Of both these riseth an action triable wel enough by the Canon Law for in this matter the Canon is the sterne and motiue of our iudgements and therefore we hold the rule of the Canon Law firmely Praestans et recipiens iuramentum contra Canones punitur g Gl. verb. paena capi grauis de censi Nomomath Well I will trouble you no further about questioning of things belonging to seuerall iurisdictions but will now passe to inquire somewhat of such thinges whereof an Action of the case will lie The second Dialogue Of Actions vpon the Case NOnomath I haue some time meruailed Codicgn wherefore an Action vpon the case which you tearme actionem iniuriarum should not haue a speciall name aswell as other actions when as at the Common Law euery action beside this hath his speciall name As an action of Dette of Accompt of Wast of Detinue of Couenant c. And in your Law there is 1. Diuision Actio ex stipulatu actio empti actio depositi actio de pauperie c. I pray you therefore let me know the reason hereof Codicgn What is more ebbing and flowing then mans inuention for some things it hath wordes too many for some it wanteth names Therefore Iuuenal when he sought for an apt name for that age which ensued the fower famous ages being this last age of the world and worse theÌ„ the yron age he nameth it by giuing it no name for his inueÌ„tion could not find out any proper appellation and thus resolueth quorum sceleri non inuenit ipsa Nomen et a nullo posuit natura metallo And because our sage Maisters of the Law could not deuise as manie seuerall names as there be seuerall iniuries for what Dictionarie could conteine so many names and because the name of the signe should be ample and large enough for the thing named or signified 1. The reason is shewed wherefore actio iniuriarum hath so generall a name at the ciuill Law therefore they deuised that actio iniuriarum might serue for all wrongs for which they could not frame particular names Anglonomoph Indeede as D. Stephens his water was fit for manie diseases and yet had neuer any speciall name but was generallie 2. The Barrister compareth an Action vpon the case at the common Law to D. Stephens his water tearmed Doctor Stephens his water so likewise an Action vpon the case stretcheth as a remedy against manie offences Yet it hath no other name then an Action vpon the case And it is therefore so tearmed because euerie mans case must be in that action speciallie and at large set downe for in that action the writ ought to comprehend the speciall matter as well as the declaration a 7. H. 6. 47. Wherfore in an Action vpon the case brought against one who was reteined to buie a Manor for the plaintife which he after purchased for himselfe in deceit of the plaintife and the plaintife did not shew of whom the Manor should be bought in the writ but onelie in the declaration the writ was abated b 16. H. 6. Action sur le case 44. 48. E. 3. 6. Brief 627. 33. H. 6. 26. 11. H. 6. 2. 22. H. 6. 53. Nomomath I pray you satisfie me in this If 2. Diuision a man be enterteined or lodged in an Inne and some of his goodes be taken from him out of the Inne by a straunger whether may he haue an Action vpon the case against the Inne-keeper Anglonomoph Doubtles he may if it were a common Inne in which hee was lodged c 2. H. 4. 7. 5. Mar. 158. Dyer And if the partie so preiudiced doe bring an 1. An Action vpon the case lieth against the keeper of a coÌ„mon Inne if goodes be imbeasiled Action vpon the case against the hoast it is no plea for him to saie that the plaintife did not deliuer any goodes vnto him or that the plaintife himselfe had the key of the chamber And an Elegit hath been awarded in such case of the land which the defendant had the daie of the iudgement giuen and not the daie of the writ brought And a Capias ad satisfaciendum lieth not because it was a laches and no wrong d 42. E. 3. 11. And therefore the wordes of the writ be pro defectu ipsius B. e Fitzh nat bre 94. B. But the opinion of Hill is 11. H. 4. that if the Inne-keeper in such case doe notifie vnto the guest that he can not attende vpon him and notwithstanding he will needes be harboured there at his perill the Inne-keeper is discharged f 11. H. 4. 45. per Hill And 22. H. 6. the difference 2. If a stranger lodge with me by my consent and do imbeasill goodes the Inne-keeper shall not be charged is taken that if a man doe lodge in chamber with me by my consent meerlie and not by the appointment of the hoast and he robbeth me the hoast shall not be charged Otherwise is it
if he be harboured there by the hoast And if my seruant robbe me the hoast shall not bee 3. If my seruant imbesill my goods the Inne-keeper shall not be charged by the common Law charged g 22. H. 6. 21. per Curiam And 39. H. 6. it is said that an Action vpon the case lieth against the Inne-keeper if he will not lodge a man and the Constable may enforce him thereunto But Danby there holdeth that he is not bound to giue bread or prouander to his horse without present money paied in hand h 39. H. 6. 18. Codign By our Law if thorough the negligence 4. By the Ciuil Law the Inne-keeper is to be charged with action if his seruants steale goodes of the seruants which waite or attende in the Inne if any thing be stolne out of the chamber of the guest by any such seruants the Master or Inne-keeper himselfe is to be impeached by waie of action and he whose goodes are stolne may recouer double dammages against him i ff si ad vers nan l. 1 because the receit of such goodes into the Inne is an implicatiue promise that the goodes shall be safe k ff furt adu nan can sta l. 1. So likewise if a man haue 5. If through the default of the Master of the ship goods be stolne the owner of the ship is to make recompence a Ship wherin he vseth to transport conuey men or goodes into foreine nations and hath appointed a Master of the said ship by whose default or wilfull offence the goodes of some that are in the ship are imbeasiled or impaired an action in this case will lie against the owner of the ship l ff de exercit act◠l. 1. for the Master of the ship is he cui totius nauis anchora et cura commissa est m ea l. 1. §. Magistrum And in the Tertorike or Almaine language such a person is called by the name of Stir-man and the owner of the ship is therefore in this case charged because he prefected him and made him Master of his ship n ea l. 1. §. non autem and because to him the dailie profites rents and gaines of the ship doe appertaine and come o ea l. §. exercitatorem Canonolog I doe not remember any thing in our Law contrarie to that which you haue said Nomomath I would be resolued of this Codignostes 3. Diuision whether according to your Law in all contractes there must be a mutuall consideration on both sides Codicgn It is not necessarie that there be 1. By the Ciuill Law it is not necessarie that there be mutuall consideration in contractes mutuall consideration but so there be a mutuall consent it is sufficient in our Law and it is therfore called a contract because by couenanting diuersae voluntates in vnum contrahuntur p Instit de actio §. 1. Gazal verbo contractus D. Baldus noteth that there is a triple kind 2. Three sorts of contractes by the Ciuill Law of contract A proper contract an improper contract and a most improper contract The proper contract is when both parties are vltro 3. What is a proper contract by the Ciuill Law citróque bound q l. Labeo § contrac ff de verb. signif As if I buy of you a Horse for fiue pound I am bound to giue you the money and you are bound to giue the horse vnto me An improper contract is when one of the 4. What an improper contract is by the ciuill Law parties onelie is bound by the contract As in a gift of goodes or chattels the donour onlie is bound to deliuer the thinges giuen r l. Aristo ff de donat canmor And so when one lendeth to an other he which boroweth is only bound ad tantundem reddendū ſ ff si cer pe l. 2. The most improper contract is when neither 5. What a most improper contract is by the same Law of the parties is bound but a bond or contract is dissolued and defeated As when a man selleth to an other a siluer Cup for three poundes to be paied at such a day the vendour deliuereth the cup to the seruant of the vendee who presently runneth from his Master so that the vendee sueth the vendor for the cup the vendor sueth him for the money if depēding these two seuerall suites both the parties doe after friendlie agree that suites shall surcease betwixt them and that the one of them shall be quite against the other this transaction as we tearme it is a contract though most improper t Saly in lib. siue apud acta C. de transact Likewise when a man will acquite one of money which he oweth vnto him vpon a contract which in our Law is called acceptilatio as when I saie vnto one with whom I haue bargained Haue not you receyued of me all the money which I did owe vnto you by way of contract and he aunsweareth I haue receyued it all whereas in truth he hath not receiued a penie of it this is a good acquitall and one of the most improper contractes u Instit qui. mo tol oblig et in l. vbi pactum C. de transact per Bar. Anglonomoph Our Law medleth with no contractes but such as you haue tearmed proper contractes For our Law requireth in all 6. The Common Law admitteth no contracts but such as be proper contractes a mutuall consideration and one part of the contract challengeth and begetteth the other And therefore the case was thus The seruant of A. was arrested in London vpon a trespasse and two which did know his Master did baile him and after A. promised them for their friendship to saue them harmelesse of damages and costes if afterward they were charged And so it befell that afterwarde they were charged yet it was helde that the Action vpon the case would not lie vppon the promise because there was no consideration for the bayling was of their owne head and was executed before the assumpsit But if the Master had requested before and assured afterward then perhaps the law would haue beene otherwise as in consideration that you haue married my daughter at my request I will giue you an hundred pound This is a good consideration because the marriage did ensue my request and in like sort land may be giuen in frankemarriage after the espousals x 10. Eliz. 272. Dy. And so wheras Oneley brought an action vpon the case against the Earle of Kent and his Ladie and declared vpon an assumpsit of the Ladie whilest she was sole that in consideration that he had taken great paines and had expended 1500. li. about her businesse and suites that she would repay the 1500. li. and beside that twentie pound more This was held a good consideration a 19. Eliz. 356 Dy. Oneleys case and 29. Eliz.
ferrying ouer the horse there was nothing due vnto the barge-man by reason of the couenant Nomomath Canonologus you haue yet spoken nothing concerning the necessitie of mutuall consideration in bargaines I pray you let vs heare the determination of your law hereupon then we will insist no more vpon this point of contractes Canonol Our law doth not refuse or abiudicate 4 The cannon law agreeth with the ciuill in cases of improper contracts the kinds of improper contractes as by the report of Anglonomoph the common law doth for if two should contend for an ecclesiasticall benefice as namely for the aduowson of a parsonage or prebend and one of them agreeth with the other that he shall haue one turne of presenting and the other an other turne and so successiuè per alternas vices heere though there bee no consideration properly yet in our lawe this is a good contract and a good consideration but if one of them should haue giuen to the other twentie pounde to haue had the presentation wholy solely to himself 5 Diuision this had bin void in law and symoniacall p c. si quando cleric de offi de leg c. statuimus de trāsac nisi effet de preben Nomomath How doth your law Anglonom punish defaultes for want of skill as suppose that I do hire one for a certaine summe of money to make for mee a frame or fabricke of an house of good timber well seasoned and in a certain forme and he maketh it of verie weake timber ill seasoned and very rudely in forme whether in such a case will an action vpon the case lye against him or no. Anglonomoph I doubt not but it will for where a man vndertaketh to do a thing well perfectly and through ignorance and default of skill hee faileth remedie is giuen by an action vpon the case for the case was 11. R. 2. that in an action vpon the case the plaintif declared that at a certaine day and yeare in London there was a couenant made betwixt the plaintife the defendant that the defendant should cure the pr of a certaine maladie he tooke of him for it a certain summe of mony before hand in 1 That by the common law want of skill is to be punished by an action vpon the case if there be an assumpsit eyther implicatiue or expressed consideration whereof the said def did vndertake to cure the pr of his maladie who ministred vnto him medicines contrary to his disease whereby hee was empeired and became worse then he was before q 11. R. 2. Act sur le case 37. so 19. H. 6. an actiō vpon the case was brought because the def did assume to cure the plaintifes horse and that he adeo negligenter improuidè imposuit medicinā quòd equum c. And it was there said by Newton that if I giue counsaile to a man to giue his horse certaine medicines who doth it thereupon the horse dieth he shal not haue an actiō vnlesse I had vndertaken to heale him which must be trauersed And Paston granted this said that if I haue a disease in my hand and a man applieth a medicin to my arme by which negligence my hand is empeired yet no action wil lie vnles he had vndertaken to cure it r 19. H. 6. 49. as I take it so is that case to be vnderstood which M. Fitzh hath if a smith doe hurte my horse with a naile I may haue an action vpō the case though he did not warrant the well shooeing of him but he saith not though he did not assume for in deed the shooing of him is an implicatiue assumpsit if there were no consideration but the smith did it of meere good will I do not thinke that any action will lie ſ Fitz. N. B. 94 D. 14. H. 6. 18. 46. E. 3. 19. 48. E. 3. 6. 21. H. 6. 55. so that the action lyeth not meerely and directly for want of skill but because the assumpsit was not accomplished for want of skill Codign But by our law the want of skill is a 2 That by the ciuill law want of skill onely is punishable sufficient ground of action for if in the case proposed of the making a frame of a house it be not done well and artificially our law is that the artificer shall render damages in toto but if some part be well done and some ill so that it is euident that if the workeman had vsed conuenient diligence all of it might haue beene well consummated so that there is no default in skilfulnes but in carefulnes then the workeman shall not bee condemned in toto but in tanto that is for so much as is not well done t Gazalup in ver ignorat Canonolog The rule of our law is that crassa 3 By the cannon law Crassa supina ignorantia non excusat supina ignorantia non excusat u Ber. in c. regni fiuit de ordi ab epi. qui resig epi. Nomomath Let mee know this of you Codicgnost when one man through fraud and deceit ouereacheth another whether is this punishable in your law as a thing iniuriously done 6. Diuision Codicgnost Yes if hee doe circumuent him 1 Circumuention dolo malo punishable at the ciuill law dolo malo Nomomath It must needes be so intended for I am sure your Law reputeth no deceit to be good Codicgnost Yes there is a distinction in our Law of Dolus bonus and Dolus malus Dolus 2. A difference at the ciuil law betwixt dolus malus and dolus bonus bonus is when a man doth machinate or deuise anie thing to entrap a thiefe or a traytour a ff de leg 2. lib. cum pater §. Titia and such deceit may not properlie be tearmed fraude but it may more fitlie be tearmed by the name of Solertia or cunning Such a kind of cunning is much vsed in war-fare by which more victories are atchieued then by strength of hand To which purpose I remember certaine verses of an vncertaine authour that may well be accommodated to this purpose Nil refert Armis conting at palma dolóue Nam dolus an virtus fuerit quis in hoste requiret But Dolus malus is a craft or subtill deuise vsed to the deceiuing of an other b ff de do mal l. 1. §. 1. or to frustrate the Law c ff de leg l. contra legem As the Law prohibiteth a man to giue anie thing to his wife And Titius giueth a horse to Sempronius who giueth it to the wife of Titius by the secreat compact of her husband d l. si sponsus in pr. ff de dona inter virum et vxor this is done in fraudem legis because the purpose of the giuer at the first was to giue to his wife But if there be a Statute that euery one which guideth
any wayne ouer such a bridge being fraught with carriage shall paie iiij d' and the partie causeth all the thinges in the wayne when he commeth to the bridge to be caried ouer the bridge on mens backes here is no defraudation of the Law But if he should giue iiij pence for the cariage ouer the bridge but not currant money now the Law should be defrauded e Io. in §. penult Insti de â—dop And when a man is preiudiced by the fraudulent dealing of an other man he may by our Law haue an action against him which is called actio doli an action of Deceit Canonolog Indeede the difference of Dolus is vsed likewise in our Law And we haue a rule of that which you haue tearmed dolum bonum 3. The same difference the common Law obserueth Frangenti fidem fides frangatur eidem f 23. q. 1. noli existimare C. de pac l. cum proponas in glo Accur And likewise an example of it vsed in our law namelie of Salomon who did vse such cunning betwixt the two harlots in searching out who was the true and naturall mother of the child But the deceit which of you hath ben tearmed dolus malus is in our Law nomen reatus which it doth punish as being done against the Law for qui peccat non peccat de legis authoritate g 23. q. 4. qui peccat Anglonomoph That deceit which of ye both 4. Dolus malus punishable at the common Law by an action vpon the case or a writ of Deceit hath been tearmed dolus malus doth not in our Law escape punishment but for the more strong inhibiting and repressing of it it doth afforde a double remedie against such as endammage others by deceit namelie either a writ of Deceit or an Action vpon the case For if a man plaie with an other at dice and he hath false dice with which he plaieth and winneth the other mans money he that loseth his money in such sort may haue an Action vpon the case for this deceit And in other like cases an Action vpon the case or a writ of Deceit will lie at the pleasure and election of the plaintife And if I present one to a Church whereof I am Patron to the Ordinarie and one T. disturbeth me wherefore an other man purchaseth a Quare impedit in my name retournable in the Common place I not knowing thereof against the said T. and after causeth the writ to be abated or me to be nonsuit in the action I may haue a writ of Deceit against him h 5. 5. E. 3. Quare impedit 37. 20. H. 6. 20. Fitzh nat bro. 96. A. And in euery case an action vpon the case is maintenable against him which sueth an originall in the name of the plaintife against his will i 7. H. 6. 45. So if a man forge a statute merchant in my name sue a Capias therupon whereby I am arrested and had in execution I may haue a writ of Deceit against him that forged it k 19. H. 6. 44. 58. 34. H. 6. 19. Fitzh Nat. be 96. B. So if the Warden of an Infant vouch one by couin who is not sufficient or pleadeth some bad plea wheras he might haue pleaded a better plea the Infant shall haue a writ of Deceit against him and shall recouer the full value in dammages l 9. E. 4. 34. And 11. H. 6. a writ of Deceit was brought against an Attourney for acknowledging a satisfaction whereas his master was not in truth satisfied m 11. H. 6. 34. And in a Praecipe quod reddat if the Shirife retorne the tenant of the land to be summoned whereas in truth he was neuer summoned whereupon the tenant loseth by default vpon the Graund cape retourned Now the tenant may haue a writ of Deceit against him that recouered and against the Shirife for his false retourne n Fitzh Nat. bre 97. C. But the writ of Deceit in this case doth not determine the right of the land but doth only defeat the iudgement o 35. H. 6. 44. 18. E. 4. 11. 33. H. 6. 43. 41. E. 3. 2. 43. E. 3. 31. 50 E. 3. 18. And 5. E. 4. is that no dammages in this case shall be recouered against the Shirife but he shall be onelie fined p 5. E. 4. 49. And if a man recouer in a writ of Wast by default whereas the defendant was neuer summoned the defendant in this case may haue a writ of Deceit q 20. E. 3. Disceit 5. 29. E. 3. 54. 48. E. 3. 59. 19. E. 2. Disceit 56. 19. E. 3. Disceit 3. And if a man bargaine with an other and assume vpon consideration to enfeoffe him of certaine land and he enfeoffeth an other he to whom the assumpsit was made may haue a writ of Deceit r 20. H. 6. 36. 16. E. 4. 9. Fitzh Nat. br 98. F. or an Action vpon the case at his pleasure Å¿ 3. H. 7. 14. 2. H 7. 11. And if one sell to an other a Horse which he knoweth to haue a secreat disease in his bodie or selleth certaine quarters of Graine which is full of grauell a writ of Deceit lieth t 20. H. 6. 36. So 13. H. 4. a writ of Deceit was brought for selling a certaine quantitie of wooll and warranting it to be 50. sackes whereas it wanted of that measure the defendant pleaded in barre that it was weyed before the sale and that the seruants of the plaintife being his factors did accepr it and caried it beyond the sea whereupon the plaintife demurred u 13. H. 4. 1. And if a man lose his land by default in a Praecipe quod reddat whereas he was neuer summoned and die his heire may haue an action of Deceit and shall haue restitution of the land uu 8. H. 6. 5. per Rolfe 15. E. 3. Disceit 43. 18. R. 2. Disceit 50. Fitzh Nat. bre 98. Q. And 1. E. 3. in the booke of Assises it is said that if a recouerie in such case be had against the father by default whereas in truth the father was dead at the time of the recouerie the heire may auoide this by writ of Disceit or Error a 1. Ass p. 16. And whereas there be two tenants for life the remainder to the heires of one of them and they both lose by default being not summoned and the tenant for life dieth the suruiuor shall haue a writ of Disceit for the whole Otherwise it had been if the recouerie had been against the tenant for life onelie by default b 8. E. 3. Disceit 7. Nomomath You haue sufficientlie discussed 7. Diuision the point of deceit Now I would craue your opinions of an other matter Suppose that a man by slaunderous and opprobrious speeches is impeached and his good name impaired this being but a verball iniurie whether doe your Lawes inflict punishment vpon such
as offend by contumelious and reprochfull speeches or no and what punishment doe they inflict Codicgn Such outragious speeches either proceede 1. Contemptuous speeches are not punishable by the Ciuill Law of pride and tend to contempt against such the Law alloweth no remedie because the partie himselfe may frustrate them by conteÌ„pt Therefore the saying of the Rhodians in the senate did argue wisedom Superbiam verborum praesertim iracundi oderunt prudentis irrident vtique si inferior is aduersus superiorem est capitali paena nemo vnquam dignum iudicauit etiam Deos aliqui verbis ferocioribus increpant nec ob id quenquam fulmine ictum audimus c Liui. lib. 45. The disgrace especially of wordes irefull men reuenge with hatred wisemen with laughter yea though it happen that the iniurie be done by an inferior person to his superior and no man euer thought such iniury worthy of capitall punishment euen the Goddes haue of some been reuiled by insolent tearmes yet we do not heare that any man hath been striken with thunder bolt for that fault But if the contumelie do rather flow 2. Opproprious speeches which proceed of malice are punished from malice then from pride tend rather to discredit then to conteÌ„pt the case is altered and then a capital punishment hath in ancient time been inflicted if the fault were publike For of the Romanes S. Augustine saith thus Romani probris et iniurijs Poetarum subiectam vitam famamque habere noluerunt capite etiaÌ„ puniri sancientes tale carmen condere si quis auderet d D. Augusti lib. 2. de ciuit dei c. 12. The Romanes would not haue their life credit subiect to the reproches iniuries of Poets making it capital for any to deuise a slanderous libell And he citeth the words of Scipio in another place Nostrae duodecim tabulae cum perpaucas res capite sanxissent in his hanc quoque sanciendaÌ„ patauerunt si quis actitauisset siue carmen condidisset quod infamiam faceret flagitiumue alteri e D. Augusti lib. de ciuit dei 2. c. 9. Cicer. lib. 4. de rep Nomomath Yet the Graecians did allow such 3. It is obiected that the Graecians did tollerate sarcasmicall speeches against wicked men taunts and biting sarcasmicall speeches as the same S. Augustine reporteth f D. August ibidem c. 9. And Socrates did not take it grieuously to be noted of Comoedians for which he giueth this reason Si merito reprehenderint emendabimur sin falso tum illa nihil ad nos attinebunt And it seemeth to keepe men in awe and to restraine them from offending when as wicked men well deseruing infamie are touched by such reprochful inueÌ„tions Codicgn Your three arguments against my assertion are but three words Graecians Socrates Terror to which by your permission I will particularly aunswere The Graecians did manie times sleep when the Romanes did awake in matter of ambiguitie the Romanes were by many degrees more to be imitated then the Graecians Yet the Graecians did not alwaies suffer this licentious rage inuectiue of Poets For when Aristophanes in one of his comedies wold make known vnto the people the extorcious tyrannous spoiles of Cleon a man of high estate g Aristoph in Equit. he was so inflamed with rancour against him that wheÌ„ he could hire none for mony to personate Cleon he performed the part himself did with such indignity disgraceful termes abuse CleoÌ„ that Cleon pursuing the matter against him he was fined 5. talents and as himselfe confesseth though he gained much by his acted Comedie yet he lost fully as much by his fine And as himselfe further confesseth to expresse it in Latin reuomuit quantum hauserat h Aristoph in Acharnens being a tart-tounged detractor whose workes are scarselie to be read vnlesse a man would taste the gall of bitternes much lesse to be imitated and as Viues censureth him well multa per ebrietatem conscripsit i Ludouic Vi. in comment ad lib. 2. de ciu de c 9. And whereas he was corrupted 4. Aristophanes is condemned for his bitter detractions by money receiued of Anitus and Melitus the enemies of Socrates to scourge and lash Socrates in his comedie called Nebulae which the same Viues pretilie tearmeth fabulam nebulonicam with contumelious speeches Socrates in this should not haue been pacient because it was crimen facto non leue exemplo admoduÌ„ graue But Plato who was more exercised then Socrates in matters of common weale did banish out of his common weale such railing Poets k Plat. lib. 2. de rep And wheras you think it conuenient to salt the corrupt maners of men by such piercing speeches that they may feare to offend the truth is such salt is very vnsauorie and such courses very corrupt for if they be suffered to taunt Hyperbolus a lewd fellow they wil not spare Pericles an excellent man as Cicero well affirmeth in the person of Scipio l Cicer. lib. 4. de rep for he was likewise more then nipped of Aristophanes and Eupolis And S. Augustine reproueth such meanes of reprouing saying grauely wisely and diuinely Iudicijs ac Magistratuum disceptationibus legitimis propositam vitam non poetarum ingenijs habere debemus m D. August d. li. 2. c. 9. And disorderlie persons as Cicero saith well a censore melius est quà m a poeta notari rather of a Censor which is Magister morum then of a soure Satyrist or gibing comical-poet which is Corruptor morum such faults are rather to be rebuked of a preacher curing with his zeale then scurrilously touched of a prater wounding with his stile for such carpers ought to take religious heed least tincta Lycambeo sanguine 5 The deuisors and publishers of libels punishable by the ciuill law 6 The canon law is seuere against such telagerant But that I may shew what our lawes haue ratified touching this abuse if any maÌ„ do deuise any slanderous libell against one it happeneth that another findeth it and he doth not cancel it teare it in peeces but doth publish it to others he is punished with capital punishment n ff de iniurâ—â— lex torm ent §. si quis liberum and so is the author likewise punished o Azo in sum C. de iniuri Canonol Wee account in our law such detraction to be summam iniquitatem the censure of our law is that omnis qui detrahit fratri suo homicida est p c. 1. de maledi 6. Anglonomoph Our law is too charitable dealing a mother and therefore it alloweth the administration of goods circafuneralia though it be done by a stranger who hath no authoritie to intermeddle q 21. H. 6. 28. because it is a worke of charitie 7 Reprooachfull speeches punishable at the common law by an action vpon the case r 21. E. 4. 5. but
slaunder and diffamation which blemisheth the good name of others it detesteth and vtterly disfauoureth condemneth punisheth as a stepdame vnto rancor violent speeches the abortiue children of malice Wherefore an action vpon the case will lye at our law for calling the plaintife theefe Å¿ 27. H. 8. 22. and for calling the pr a false and periured man t 28. H. 8. Br. Acti sur le case 3. 30. H. 8. Br. Acti sur le case 104. so an action vpon the case lyeth for calling the pr false iustice of peace u 4. E. 6. Br. Acti sur le case 112. But to publish one for his villaine who in truth is his villain is no slander nor actionable x 2. E. 4. 5. nor to publish one to be a bastard who is in deed a bastard if the defendant doe make title to the bastardes lande and did therefore tearme him bastard that the matter might bee produced into question and triall y 25. Eliz. Baâ—isters case Nomomath Enough of this wee will passe now to other matters The third Dialogue Of Dettes NOmomath I pray you let me know 1 Diuision Codicgnostes all the waies meanes wherby one man may become indebted to another so that remedie may be had by processe of law for the debt Codign A dette may grow by writing or especialtie 1 Dette may grow by writing or especialtie as when the dettor confesseth himselfe to bee obliged and bound to his creditor and such bond or obligation may be by deede indented sub eadem forma verborum by mutuall deliuerie it becommeth the deed of them both a l. seruuÌ„ filij § eum qui chirographum ff de leg 1. Such a kind of writing wee call instrumentum 2 An obligation may be by deed indented at the ciuill law priuatum because it is done in the name and by the hand of a priuate man not in the name of any king or prince and this kind of instrument ought to haue the subscription of three witnesses b C. de proba l. but there is a priuate instrument of more solemnity which is called of 3 What instrumentum garraÌ„tigiae is at the ciuill law vs instrumentum garrantigiae an instrument of warrantie vpon which a man shall haue present execution as if it do specifie that one man is indebted to another this being presently exhibited in place of iudgement the iudge ought presently to awarde execution c ff de re iudi and such writings obligatorie if they haue any razure in them in any materiall place are of no credit in law d c. ex liter in glo 2. de fid instrument and there bee in our law three sorts of bonds Naturalis Ciuilis Praetoria Naturalis 4 Three sortes of bonds by the ciuill law is when as by mutuall contract one of the parties becommeth mutually bounde to the other Ciuilis is that which is made in forme of law whereof we haue aboue spoken wherein one of the parties confesseth and acknowledgeth himselfe to bee indebted to the other in a certaine summe of money and bindeth himselfe for the payment of the saide summe Praetoria which is deuised and conceiued of the Pretor and Iudge in precise termes specifijng the debt e Insti de obli in prin Likewise debt may accrue 5 Dette may grow by way of contract vnto one by way of contract which is nothing els but the coÌ„sent of 2. persons for a thing to be done or giuen by the one to the other and it is on both sides obligatorious f de pac l. 1. §. 1. for if two doe consent in this true proposition Titius est homo or in this false assertion Titius est Asinus yet this is no contract because non vtrobique obligat f Gazalup verb. pactum for if the wordes or acte be obligatorie then the contract is obligatorie as contrariwise if the words or acte tend to acquittance then the contract is nothing els but an acquittall as if the creditor doe redeliuer the writing obligatorie vnto his dettor this is an acquittance in lawe for otherwise the redeliuerie should worke nothing g ff de pac l. labeo but if the creditor should redeliuer a pledge vnto the dettor this will not amount to any acquitall or release of the dette because the redeliuerie in that case may haue an other effect namely the vse of the pledge for a certaine time h l. sequent ff eo ti And if the instrument or especialtie of the dette be come to the hands of the dettor the law will intend prima facie that it was redeliuered by the cteditor in lieu of an acquittance i l. si chirograph ff de pig but this must be limited with this restreint if the dettor be a meere stranger in facto vnto the creditor but if he be his seruant or one of his familie conuersing in house with him then the intendment will bee otherwise for then the law will presume that he might easily come by the bond without the priuitie of the creditor k l. vnica §. ille C. de lati li. tol Canonol I haue not at any time obserued any thing in our lawe which maketh head against 6 The canon law agreeth with the ciuill in matters of bonds or dettes these determinations of lawe by you mentioned Anglonomoph Our law with some of these assertions fully agreeth and from some flatly disagreeth as I meane to manifest by examining 7 Dette may grow by contract by the common law in order the particulars of Codicgnostes his speech Dettes with vs may grow many waies and euerie way an action of dette will lye for it may grow by contract as Codicgnost hath auowched For if the husband sell trees growing vpon the land of his wife and the wife dieth before they be cut downe yet the husband may maintaine an action of dette so it is of a vendition by the tenant in taile so where a man hath a horse by wrong and selleth him to another for a certaine summe of money and before the deliuerie of the horse he dyeth or the owner taketh him away yet an action of dette lyeth vpon the vendition l 18. E. 4. 6. So if a man sell ten acres of land to another for ten pound and after he will make no assurance of the land yet he may maintain an action of dette for the money and the other is put to his action vpon the case but if it bee agreed that the assurance shall be made before a certaine day and the ten pound to be payed vpon the perfecting of the assurance then the lawe is otherwise For if hee make not the assurance before the day but after hee shall not haue an action of dette for the ten pound m 22. H. 6. 50. ê‘ Newt But if a tailor doe make a garment for mee if we bee
not agreed before what I shall pay for the making hee can not haue an action of debt otherwise it is for victuailes and for wine n 12. E. 4. 8. Likewise an action of 8 An action of debt lyeth at the commoÌ„ law for a loan of money debt lyeth vpon a loane of money made by the creditor to the debtor o Fitzh N. B. 119. G. or it lyeth for a meere dutie as when an Attourney bringeth 9 An action of debt lyeth at the commoÌ„ law for a meer duety an action of debt for money expended in the suite of his client p Fitzh N. B. 121. L. 10. H. 4. Dette 158. 3. E. 4. 29. or vpon an obligation as when the especialtie is Nouerint vniuersi me teneri c. And after the deed saith ad fideliter computandum de proficuis in this case the obligee may vse an action of debt or an action of accompt at his pleasure q 41. E. 3. 10. 42. E. 3. 9. 28. E. 3. 98. Vpon which case Baker 28. H. 8. in Cores case thus distinguisheth that if the deliuerie of the money were to this intent that an increase or profit might rise of it and not that money might be repaied there no action of debt will lie but a writte of accompt onely r 28. H. 8. 20. Dy. Cores C. And if a man do make a contracte to paye certaine money for a thing bought by him if hee make an obligation 10 An obligation made after a contract dissolueth the contract by the common law for the money the contracte is discharged and he shall not haue an action of dette vpon the contracte Å¿ 9. E. 4. 25. 28. H. 6. 4. 21. H. 7. 5. 1. H. 6. 8. per â—ab 20. H. 6. 23 35. E. 3. det 83. But if a man make a talie and writeth wordes obligatorie vpon the talie and ensealeth it and deliuereth it as his deede yet this shall not binde him but hee may pleade nihil debet against it or may wage his law for an obligation ought to be writte in parchment or paper and not vpon a peece of wood t 25. E. 3. 40. 44. E. 3. 21. 2. R. 2. dett 4. 12. H. 4. 13. But the Queene may maintayne an action of dette against her Farmour vppon such a talie u 5. E. 4. 10. And a man shall not be fined for denying a talye ensealed x 4. E. 2. en le title de fine And whereas you say that a man may bee bounde by deede indented that is likewise so with vs 11. A man may be bound by deed indented by the common law For if one acknowledge himselfe by indenture to bee indetted to another man in an hundred pounde for which hee deliuereth him certayne Veluet that the other may sell it after the best manner that hee can and to reteigne it for payment and if any thing remayne of the dette that hee will pay it the other may sell the Veluet for twelue pence and vse an action of dette for the remnant a 18. E. 4. 5. and 11. H. 6. an action of dette was brought for an hundred markes deuised by the last will and testament of A. being in the handes of the defendant the def by Indenture acknowledged that the said summe of mony remained in his hands the deuisee made his executors died the abouesaid action of det was broght by the executors it was allowed the law is likewise so of an accompt b 11. H. 6. 46. And if the words of an indenture be so Ita conuentuÌ„ est inter nos quòd A. soluat B. 20. li. ad festuÌ„ Pasch B. may haue an action of dett hereupon c 30. H. 6. per Yeluert Stath tit Couenant So when a man maketh such a bill namely this bill witnesseth that I A. haue borrowed so much money of C. without saying more this shall charge the executor as well as an obligation and the testator could not haue waged his law against this bill for these words recepisse or debere or teneri ad soluendum 20. li. doe make a good obligation and shall bind the executor for euerie word which prooueth a man to bee dettor or to haue a strangers mony in his hands though it be by bill yet it shall charge the executor d 28. H. 8. 20. Cores c. per Fitzia et Mountague As for your instrumentum garrantigiae an instrument 12 A statute bond is resembled to an instrument of warrantie at ciuill law of warrantie as you haue tearmed it it is fully and proportionably resembled by a recognisance vpon a statute merchant or staple for thereupon the partie to whom the reconisance is made vpon the certifying of the same in Court shall haue present execution For if a stranger to the reconisance of a statute come into the Chauncerie and shew the statute and pray execution he shall haue it and if a statute marchant be acknowledged to two one of them commeth into the conrt with the statute he shal haue execution in both their names e 11. E. 4. 9. And 17. E. 3. two sued a Cerciorari of a statute merchant and after the Cerciorari returned the parties came not but others as executors profered themselues and shewed forth the testament and praied execution and had it f 17. E. 3. 31. But the opinion of Hill is to the contrary 18. E. 3. for a Ceciorari was sued vpon a statute merchant and before execution the plaintife died wherefore Greene praied execution for executors But Hill said that he should haue sued a Scire facias for the the executors for it may be that the testator hath released Wherefore you must sue a Scire facias out of the certificat g 18. E. 3. 10. And vpon a statute staple the partie shall haue execution of the bodie landes and goods by one writ And vpon a statute merchant first a Capias till a quarter of a yeare be past and vpon a retourne of Non est inuentus the partie shall haue a writ to haue execution of his lands and goodes h 15. H. 7. 14. Fitzh Nat. bre 131. D. And a man may sue an action of Dette vpon a statute staple vpon a statute merchant and vpon any other recognisance i Fitzh Nat. bre 122. D. et fol. 17. And whereas you haue said that a deede razed 13. A deede razed is not good at the coÌ„mon Law is not good in your Law no more it is in ours if it be razed or interlined and in such case the obligour may conclude his plea if he be impleaded in an action of Dette with a Non est factum k 1. H. 7. 14. Doues C. per Keble And whereas you haue affirmed that there be three sortes of bondes in your Law Naturalis Ciuilis and Praetoria For the first 14. The common Law agreeth in substance
with the Ciuill Law in the three sorts of bonds two I haue shewed that our Law agreeth with yours and as to the last it agreeth in the substance of the thing though not in the sound of the name For an action of Dette may by our Law be brought vpon a recouerie or iudgement conteining the dette For if a man recouer dammages in a writ of Wast he may sue a writ of Dette vpon this recouerie if he will l Fitzh Nat. be 122. C. 20. H. 7. 3. And so for dammages recouered in a Redissesin a writ of Aiel Cosinage and a writ of Entre sur disseisin m 43. E. 3. 2. But in that you said that 15. The common Law dissenteth from the Ciuill in not making the redeliuerie of a bond an acquitance the redeliuerie of a writing Obligatorie vnto the obligee is in steede of an acquitance this is not so in our Law For though it be notably well obiected by Fineux 1. H. 7. that there be as manie waies for him to whom a deede is made to dissolue the deede as for him who maketh a deede to make it a deede as where as it is ensealed he may break the seale and whereas it is deliuered as the bond of the partie he may redeliuer it in steede of an acquitance m 1. H. 7. Dones C. per Fin. Yet it is better aunswered by Mast. Keble that a redeliuerie may be either of a deede executorie or a deede executed The redeliuerie of a deede executorie hath some operation in Law n ibi per Keble as if a man deliuer a writing obligatorie as a scroule to I. S. to deliuer as his deede to I. N. vpon a certaine condition perfourmed if I. S. deliuer the scroule back to the bailor before the deliuerie of it to I. N. and before the condition perfourmed the bailor shall not anie way be charged by vertue of this bond But if it had been deliuered at the first as his deede to I. N. vpon a condition perfourmed o Perkins tit Faits Now the redeliuerie of it nequè ligat nequè soluit worketh nothing because a deede can haue but one deliuerie and if the first deliuerie be good the second is voide if the first be not good the second may be good p 1. H. 6. 4. And so it is of a release executed for if a man be disseised and after release to the disseisor and after the disseisor redeliuereth the deede of release to the disseisee and saith that he will not haue aduantage of it yet this is to no purpose for by the release executed no right may bee demaunded by him to whom the deede is redeliuered but a right may be defended by him who is in possession to whom the first deliuerie was q 1. H. 7. Dones c. per Vauisor Keble But if the disseisee reenter vpon the disseisor and the disseisor bringeth an Assise and hath not the deed of release readie to intitle himselfe to the land the other may still hold possession of the land but then the redeliuerie of the deede of release doth him no good directlie but onelie per accidens because the want of it doth hurt to the disseisor Nomomath Now I pray you resolue vpon 2. Diuision this whether shall the Executor or Administrator be charged in all respects with the dettes and Legacies of the testator or how farre forth they shall be charged For I accompt a Legacie to be a kind of dette Codicgn The making of an Executor which 1. By the Ciuil Law the Executor succeedeth in vniuersum ius desuncti of vs is tearmed haeredis institutio is to appoint one to be an vniuersall successor in the right of all his goodes after his death by his Testament or last will r C. de haere l. 1. which is not of force till the death of the testator but vntill that time it is kept clausum signatum and as Isiodore saith rather according to the truth of the thing then according to the true deriuation of the word as manie times he doth it is therefore called Testamentum quia non valet nisi post testatoris monumentum vntil the testator be laied in his graue ſ Isiodor li. 5. And such Testaments must be insinuated to 2. Insinuation of a wil necessarie by the ciuill Law the Officiall or Commissarie of the Bishop of the Dioces within foure monethes after the death of the testator which insinuation is appointed by Law Ad euitandum falsitatem et sciendum veritatem Testamenti t L. iubemus C. de test l. si C. de fideicom But de iure Praetorio though a Testament be not made yet some person may be appointed by the Praetor to administer the goodes u Iusti de bo poss §. 1. et ff eo tit And as well the administrator 3. By the Ciuill Law the executour or administrator ought to make an Inuentorie of the goodes of the partie deceased as the executor ought to make an Inuentorie or sufficient Catalogue of all the goodes of the partie in whose right they succeede which shall come to their handes And it is a good and safe waie for them so to doe for if they doe so they shall not be charged further with anie debtes then the goodes of the testator or him that died intestate will extend And such an Inuentorie by our Law cannot be disprooued vnlesse the number of the witnesses that disprooue the Inuentorie be twice as manie in number as they which doe prooue it which are commonly called Prizors uu cum Io. de si instru And the Inuentorie ought to be begun by the Executor within 30. daies after the death of the testator or at least within 30. daies after that he hath notice that he is made Executor and it ought to be finished or consummated within thirtie daies after or at least within a yeare after if the thinges be farre distant and dispersed in remote places and then he shall be charged no further then the goodes will stretch otherwise he shall be charged in solidum for the whole dette d Gazal in verb. Inuentar Canonolog These thinges which you haue proposed are not reiected of vs but are of validitie in our Law Nomomath I pray you Anglonomoph rip vp the particulars of Codicgnostes his late discourse as distinctlie as you can for these things vttered by him are of great importance and vse at this day wherefore I would haue you studiouslie and with care to discusse these things Anglonomoph In the substance of these matters 4. The power of the Executor dependeth wholie vpon the will of the Testator by the common Law which he hath mencioned I doe not see at the first glimse any discordance in our Law but in the circumstance there will be some dissonancie and variance First to speake of the power of an Executor by our Law it dependeth wholie
vpon the will and designement of the Testator For if a man make three his executors and all refuse the administration but one yet the others shall be executors by vertue of the will and may administer when they please and an action ought to be brought in all their names otherwise the writ shall abate And if a man haue goodes in diuerse Prouinces he may make his executors of his goodes in one of the prouinces and die intestate as to the other goodes And if the Ordinarie doe commit the administration of the goodes which are in the other prouince vnto him now is he both executor and administrator e 35. H. 6. 36. And 4. H. 6. in an action of Dette brought by the Executors vpon an Obligation the defendant demaunded oier of the Testament and he had it and the plaintife shewed forth a Testament nuncupatiue being thus in effect Memorandum quòd A. constituit B. et C. executores suos and this was vnder the seale of the Ordinarie and the opinion of the Court was that this was sufficient matter to maintaine the action f 4. H. 6. 1 and if there be not speciall caution to the contrarie By our Law likewise the executor doth vniuersally succeede in the right of the goodes of the dead and he may enter into the landes of the testator to take the goodes g P. 9. H. 6. Stath tit Execut ou Entr. But if a man deuise goodes to one and die the deuisee cannot take the goodes without the deliuerie of the executor h 37. H. 6. 30. 11. H. 4. Execut 58. per Thirn And the executors do so fullie and viuelie represent the person of their Testator that if an action of Dette be brought against two executors and the one of them pleadeth misnosmer and the other pleadeth that he is administrator and not executor the opinion of the Court was that they should not haue both pleas because they did represent their testator who could haue but one onely plea i 37. H. 6. 30. 7. H. 4. 13. But it seemeth by the booke of 8. Ed. 4. that they shall haue seuerall pleas and the most peremptorie shall be tried k 8. E. 4. 24. Execut. 31. And an executor or administrator may haue a writ of Error vpon a iudgement giuen against their Testator concerning dette or dammages l Fitzh Nat. bre 21. M. And that a testament and a deuise 5. According to the cōmon Law a Deuise is of no force vntil the death of the deuisor are of no force till the death of the deuisor may appeare by diuers good authorities in our Law m Littlet lib. 2. c. 10 sect 8. 27. Ass pla 60. And whereas Codicgn hath said that by their Law there must be an insinuation of the will to the Bishops Officiall 6. The common Law agreeth with the Ciuill in the insinuation of willes doubtles it is so in our Law for there must be such an insinuation and probate of the will before the executors may bring anie action of Dette n 7. H. 4. 18. 10. Eliz. Com. Brets c. et en Greyst case And the Ordinarie may sequester the goodes of the dead vntill the executors haue prooued the Testament And the Metropolitane may do the same if the goodes be in diuerse dioceses o 9. E. 4. 33. But our Law differeth from the Ciuill Law in this that the administration of the goodes of him that dieth intestate is not committed by the Praetor but by the Ordinarie For if a man be indebted and die intestate or if the Executors of one that hath made a Will refuse to be executors whereby the goodes do come to the handes of the Ordinarie the creditors may haue a writ of Dette against the Ordinarie by the statute of Westminster 2. cap. 19 p Fitzh Nat. bre 120. D. and in this case he must be sued by the name of Ordinarie q 9. E. 4. 34. But after administration committed the Ordinarie shall not be sued r 8. Elizab. 247. Dy. And if Sede vacante the Deane and Chapiter be gardian of the spiritualties if a man doe then die intestate and the Deane onelie administreth the goodes it is sufficient for the Creditors to vse an action against the Deane onely Otherwise it is if the Deane and Chapiter as Ordinarie should vse an action ſ 17. E. 2. Br̄e 822. And so if the Ordinarie make his executors and 7. That an action of Dette will lie against the Ordinarie die the Creditors may haue an action of Dette against the executors of the ordinary t Fitzh N. B. 120. D. Vieux Nat. br 61. though 11. E. 3. in the title of Executors be directly to the contrarie u 11. E. 3. Executors 77 But a man shall not haue an action of Dette to charge the Ordinarie as Ordinarie vnlesse he doe administer in his owne dioces uu 12. R. 2. Administr̄ 21. But the Ordinarie can not haue an action of Dette against such which were indebted to the partie intestate because that action is giuen to the Administratour and the Ordinarie may commit the administration of the goodes when it pleaseth him But before the statute of king Edw. the 3. ann 31. ca. 11. the administrators could not haue an action of Dette therefore it seemeth before that time the Ordinarie might haue vsed an action of dette otherwise remedie should haue failed a Fitzh N. B. ibid. but the Ordinarie may might at all times haue had an action of trespasse for the goods of the dead taken out of his owne possession b 18. H. 6. 23. 7. H. 4. 18. 11. H. 7. 12. but not for goods taken out of the possession of the partie intestate c 17. E. 2. Briefe 822. But if the Ordinarie without formall letters of administration granted do giue one licence and authoritie to sell the goods of the partie deceased intestate quae peritura essent and he doeth it accordingly he which doth so administer shal be punished as an executor of his owne wrong d 9. Elizab. 256. Dy. neyther can hee commit administration by word of mouth otherwise it is if it bee entred into his register though letters of administration bee not formally drawne e 21. H. 6. 23. And it may come in issue whether he that granteth administration were Ordinarie in the place where the administration was committed as if the village doe extende into two dioceses f 35. H. 6. 46. And it may come in issue whether administration were committed by the Ordinarie And whereas Codicgnost hath also affirmed that if the executor or administrator doe make an Inuentorie 8 The Canon law agreeth with the ciuill in administring the goods cōprised in the Inuentorie according to the testament and dispose the goods comprised in the same according to the testament of the partie and appointment of lawe they shall not bee further charged our lawe
in this consorteth with the ciuill law for it is a good plea for the executor to say that hee had fully administred before he had notice of the writte of the plaintife g 7. H. 4. â—0 Plowd com 277. for though hee doe pay debtes vpon contractes the writte depending against him vppon a bonde whereas hee had no notice of the suite he shall not bee in such case charged h 2. H. 4. 21. And 3. H. 6. in an action of debt vpon an obligation of twentie pound brought against executors they pleaded riens enter maines that they had nothing in their hands and it was founde by verdict that they had tenne pound in their handes wherefore the plaintife had iudgement to recouer so much as was found of the goods of the deade and the dammages of the goodes of the executors for their false plea i 3. H. 6. 4. But in Dauises Case in the Commentaries it was otherwise ruled that nothing should bee put in execution vpon such a plea but onely the goodes of the dead k Dauis C. com 440. But in a Fieri facias vpon a recouerie against executors the Sheriffe returned a deuastauerunt wherefore the Court did graunt a writte to haue execution of the goods of the dead and if there were no such goods then of the goods of the executors l 11. H. 4. 70. And 4. E. 3. in an action of dette brought against the executors it was found that they had fully administred and the opinion was that the Iurors should set downe in certaine how much they had administred because they shall not bee charged but onely according to that which is found by inquest m 40. E. 3. Statha tit executors But it was said 34. H. 6. that when the executors doe plead fully administred but onely for so much their plea is found the plaintife shall haue iudgement to recouer all his dette but he shall not haue execution but onely of the goods in their hands n 34. H. 6. stath tit Execut. But it is good to bee considered what may properly bee saide assets in the handes of the 9 What may properly be said to be assets in the hands of the executors executors if the executors doe merchaundize with the goodes of the testator the increasall of them shall bee assets in their hands and shall charge them and they cannot plead that they haue fully administred when they haue such assets o 11. H. 6. 35. per Bal. And if executors doe sell the goodes of the testator and doe buy them againe they remayne in their handes as assets because they were the same goods which were the testators p 18. H. 6. 4. But then it seemeth that the money which they had for the sale of the goodes was wasted by them and not conuerted to the vse of the testator for otherwise there is no reason but that they should haue a propertie in them to their owne vse for if the executors pay the debtes of the testator of their owne goodes they may retaine the goodes of the testator to the value in their handes to their owne vse q 6. H. 8. 2. Dy. But it was held by M. Fitzherbert 27. H. 6. that where a man is indebted 40. pound to one and 30. li. to another dieth and hath but 40. li. and his executors or administrators agree with the creditor of 40. li. for 10. li. and haue an acquittance of the 40. li. yet the thirtie pounds which remaineth in their hands shall bee assets r 27. H. 8. 6. per Fitzh And so a gage being ransomed shall bee assets in their handes but according to M. Frowikes opinion it shall not bee assets if it were ransomed with their owne money Å¿ 20. H. 7. 2. But as M. Brooke noteth wel abridging the case abouesaid of 20. H. 7. the money which commeth in lieu of a pledge being gaged to their testator shall bee assets in their handes So it hath beene adiudged that if a man make a feoffement vpon condition that the feoffee shall sell the lande and distribute the money to the vse of the testator whereupon he selleth the land and the feoffor maketh him his executor the money taken for the land sold shall be adiudged assets in his hands t 2. H. 4. 21. Executors 51. 3. H. 6. 3. So if the executors pleade fully administred and it is found for them and after certaine goodes of the testator come to their handes wherefore he which brought the first action of dette bringeth the same against them againe this action is well maintenable u 7. E. 4. 8. per Littlet Danby Nomomath You haue satisfied mee for this point Anglonomoph Now I pray you Codicgnost strayne your endeuour a little to resolue me vpon point of execution to be sued vpon these dettes I haue reade that in ancient time it was a law amongst the Romans that if a man greatly indebted were not able to discharge the dette his bodie was mangled and cut in 1 The rigorous law of the Romanes in their execution for dette peeces and the greatest portion of it giuen to his greatest creditor a lesser to him to whom he did owe lesse and so pro rata x Paul Manut lib. de legi Roma which lawe beside the monstrousnesse of it in such a common weale was verie inhumane for the creditors might if they would in their furie by this law cast the members and partes of the bodies of their debtors to dogges and other brutish beastes so that that the Romanes had not so much care of their Senators gentlemen and citizens as the friendes of Diogenes had of him For when the Cynicke laye vpon his death-bed his friends which were then about him asked him in curteous manner where he wold be buried he thinking perhaps that a man was nothing but a mind answeared them that he would bee buried in the dunghill and they replyed that that would be verie inconuenient for the dogges would then rake him vp and deuoure him Then said he lay some staues by mee to beate away the dogges but they told him that hee could haue no sence in his bodie after his death then quoth he what neede I feare the dogges This was but the glaunce of Diogenes who made more accompt of his scoffe then his state But others more ciuill doe thinke it a great losse shame and indignitie that a mans bodie should not be buried wherefore Lucan sharpely inueyeth 2 The execution of the Romanes greatly to bee reproued because it did depriue men of buriall against Caesar Tu cui dant paenas inhumato funere gentes a Luca. lib. 7. And it is the iudgement of all antiquitie that without verie heynous fault the partes of a mans bodie should not bee debarred from sepulture Romulus though hee had caused to be slaine his brother Rhemus and after his death did continue his fury
as his speech importeth Sicque meos muros transeat hostis ait Yet he gaue him sepulture and attended vpon the hearse himselfe for as the Poet saith h Oui. Fasto 4 Dat tamen exequias neciam suspendere fletum Sustinet pietas dissimulata patet Osculaque applicuit posito supremaferetro Atque ait inuito frater adempte vale And therefore the Ambassador of Darius doth exceedingly praise the great curtesie of Alexander mourning for the death and hauing speciall regard of the sumptuous sepulture of the wife of Darius his professed enemie Vultum tuum video qualis Darij fuit cum dimitteremur ab eo ille tamen vxorem tu hostem luges Iam in acie stares nisi cura tesepulturae eius moraretur c Curti. li. 4. And Salomon saith diuinely If a man begette an hundred children and liue many yeares and the daies of his yeares bee multiplyed and his soule bee not satisfied with good thinges and hee bee not buried I say that an vntimely fruite is better then hee d Ecclesiast c. 6. v. 3. Then surely that I may recourse vnto that from which I digressed for the Romans to adde shame to affliction and when the hard debtor is not able to maintaine himselfe with meate and apparell in any reasonable sort after straite imprisonment and extreame want to cutte his bodie in peeces and to distribute it in recompence of of vile money is a thing verie immane and in my opinion greatly obscuring the bright and glorious dignitie of the auncient Romane common weale Miserable doubtlesse is the state of them which haue nothing but domi inopiam foris aes alienum malam rem spem multo asperiorem nihil reliquum praeter miseram animam e Salusti in Catilin The Lord in his yeare of Iubilie signifieth his pittie towarde decayed persons Septimo anno facies remissionem quae hoc ordine celebrabitur Cui debetur aliquid ab amico vel proximo ac fratre suo repetere non poterit quòd annus remissionis est domini ee Deuteron c. 15. And to preuent the cautelous sophistrie of miserable worldlings hee giueth this caueat Caue ne forte subrepat tibi impia cogitatio dicas in corde tuo appropinquat septimus annus remissionis auertas oculos tuos a paupere fratre tuo nolens ei quod postulat mutuum comodare ne clamet contra te ad dominum c. Augustus Caesar that wise Emperour was of so mercifull disposition that for establishment of peace and concord amongst the Romanes he relieued the common stocke which was greatly impaired by ciuill warres with his owne priuate wealth and them that were indebted to the common treasurie the billes of debt being burnt with his owne hands hee did free from the daunger of the roll f Dio. Nicae in vit August Carol. Sigo in fi lib. fast triumph Roma Mercy doubtlesse and pittie is to be extended to such as haue nothing to help themselues withall therefore doe not pay debts because they can not Non manca est voluntas sed potestas mutila To such I say mercy ought to bee exhibited The richest man in the world bee he neuer so good is a greater debtor to God then any man is to him yet God doth forgiue and will not man forgiue Quis persequeretur canem mortuum What horsleach would sucke for bloud out of a bloudlesse member Bitter was that saying of tyranicall Tyberius to one that requested death rather then long imprisonment Nōdum tecum redij in gratiam Blessed are the mercifull for they shall obtein mercie g Mat. 5. v. 7. I speake not this as if fauour should bee shewed to couetous churles which had rather lose their bowels thē their bagges and deuise fraudulent shifts and knottie conueiances to bereaue defraud the creditor of his due debt and whereas they may make payment in ten dayes doe deferre it ten yeares It were a blessed thing if the bodies of such miserable Midasses might be changed to gold whilest they were in prison so their soules might be saued that by such meanes at the least their creditors might be satisfied But let euery Creditor vse conscionable discretion and distinguish betwixt them and these that be otherwise minded Diuexet coruos parcat censura columbis Let them vse mercie to such as be humbly minded and anguished in hart because they are not able to discharge their debtes Let them remember that charitie seeketh not her owne that she freeth the bondman cheareth the weake fatneth the poore doth good against euill Some think it great charitie to spare a mans goodes when he hath but a little left and to imprison his person if that be charitie O mites Diomedis equi Busiridis arae Clementes tu Cinna pius tu Spartace lenis g Claudi lib. 1. in Ruffi Let the Creditor think that he may fall into the same calamitie and extremitie himselfe which the dettor suffereth And that I may vse the wordes of the noble-witted Curtius Suam quisque fortunam in consilio habeat cum de aliena deliberat The Troians were once a florishing people Ferus omnia Iupiter Argos transtulit h Virg. in Aenei Troy a goodlie Citie Iam seges est vbi Troia fuit i Ouid. in epistol Hecuba in her youth a gallant Princesse in her age a captiue deploring her estate with Me videat et te Troia k Senec in Troia And Seneca the artificer of sorrow saith well Quem dies videt veniens superbum Hunc dies vidit fugiens iacentem Most diuine is the saying of that deepe diuine I haue seene seruants on horses and Princes walking as seruants on the ground kk Ecclesiast c. 10. vers 7. Codicgn You haue insisted a long time vpon 3. That the rigorous Law of execution for bette was afterward abrogated by the Romanes a Law antiquated and made a large comment vpon a supposed text for the Law which ministreth occasion of your copious discourse though it were allowed and vsed by the Romanes for the terrifying of vnconscionable men which made no scruple to ouerwhelme themselues with dette and neuer to discharge it or compound for it or to shew any thankfulnes for it yet when the horror of the punishment seemed grieuous and too shamefull vnto them that Law for the bitternes of it was out of their authentike diskalendred and manie yeares are past sithence it was repealed and abrogated l Hotom lib. illustr quaest But now according to our Law 4. By the Ciuill Law execution for deuelieth vpon the goodes of the partie how far forth the word goodes extendeth execution lieth vpon the goodes of the partie which we tearme bona but the signification thereof extendeth further then the name of goodes at the common Law for it signifieth res nostras quae sunt in dominio nostro vel quasi and it signifieth aswell inheritance as
goodes Canonolog In this we dissent not from you Nomomath Let me know Anglonomoph what maner of execution ye vse for dette at the common Law Anglonomoph The execution is foure-fold 5. A fourefold execution for dette by the common Law either of goodes onely by Fieri facias or of the moitie of landes by Elegit or vpon all the landes by an Extendi facias vpon the reconusance of a statute or of the bodie by Capias ad satisfaciendum euery of which by your pacience I will explane by cases and examples or by shewing their originall A Fieri facias issued out of the Eschequer for the king against 6. The execution of goodes by Fieri facias is opened a Parson for money due to the king out of an Abbey to which the Church of the Parson was charged in xx markes and for two markes behind a Fieri facias issued to the Shirife in these wordes Fieri fac de bonis et catallis spiritualibus et temporalibus prouenientibus de Rectoria de R. and the Shirife by his bailie tooke two bookes in the Church and sold them for the kings dette l 8. H. 5. 4. And wheras A. did recouer dammages in a speciall assise before speciall Iustices and brought an action of Dette for the dammages it was resolued that the defendant was dettor of recorde and therefore ought to be discharged by matter of recorde and for that cause the Fieri facias is ita quod habeas denarios hic to the intent that the payment of the money to the plaintife may be of recorde and the defendant discharged by recorde m 11. H. 4. 58. Execution by Elegit is warranted by the Statute of Westminster 2. cap. 18. which saith Si quis recuperet debitum aut damna sit in electione querentis an habere velit Fieri facias de terris catallis it should seeme to be meant de bonis catallis vel quòd Vicecomes liberet it seemeth to be better et quòd Vicecomes liberet ei omnia catalla debitoris exceptis bobus et affris carucae suae medietatem it seemeth more agreeable to the purpose vel medietatem terrae suae quousquè debitum fuerit leuatum per rationabile pretium et extentam The execution vpon 8. Execution vpon statute merchant is opened Statute merchant may appeare by this case A man had execution out of statute merchant and the Shirife returned an Extent of the lands of the reconusor in this maner sciz that he had sent to the baylie of the fraunchise c. who had retourne of writs to extende the landes which were within the fraunchise and so he did and that which was within the bayliwicke of the Shirife namelie in guildable himselfe caused to be extended by parcels and at the end he put the summe of the value and after the summe he put the charges as rents and other charges which were due out of the said landes and amongest other charges he retourned that the land was charged to the reconusee with xx li. yearely for euer And the Iustices cast all the charges of the landes and the value and they did perceiue that the charges passed the value by xl s' and after it was shewed that the Shirife had sent to an other Baylife of an other fraunchise in which the partie had lands and of these landes he made the third extent so that by that extent the value passed the charges by tenne shillinges wherefore execution was awarded n 29. E. 3. 1. And 9. E. 3. one sued a writ to take the bodie of him who had made a statute merchant to him and the Shirife retourned that he was dead wherefore he praied a writ to the Shirife to deliuer vnto him all the lands which he had the day of the reconusance or at any time after and he had it o 9. E. 3. 24. Execution by Capias 8. Execution by Capias ad satisfaciendum is shewed and imprisonment is after this manner Dammages were recouered against I. in a writ of Trespas in the kinges bench in the time of king Henry the fourth and after in the time of king Henry the fifth he was condemned in London at the suit of an other and put in Newgate and he at whose suit he was condemned in the kings bench had a Capias ad satisfaciendum to the Shirifes of L. which did send the bodie and did certifie that he was condemned at manie mens suites in London and now he that sued the Capias came into the Court and did acknowledge agreement to be made and the defendant was readie to make a fine to the king and praied to be deliuered But because he was condemned in the time of an other king and the Iustices which be now haue not knowledge of the persons which were parties to the pleas in the time of an other king as the Law doth intende and likewise because if he be acquited heere he must be sent backe into London because hee is condemned there and thirdlie because by couin betwixt him which acknowledgeth agreement and the defendant he may defraud him at whose suit he is condemned of his execution for if he be deliuered the other is without remedie therefore a Scire facias was awarded p 8. H. 5. 7. The like Law is in an execution vpon an Action of Dette and in an acquitall the fine to the king being excepted Nomomath Well I will trouble you no further about questions of Dette Now let vs passe according to the platforme of the conference to examine doubtes touching Accomptes The fourth Dialogue Of Accomptes NOmomath Suppose Codicgnostes 1. Diuision that I deliuer vnto you my horse or hauke to sell him for fyue poundes and to deliuer me either the fiue poundes or redeliuer the thing againe Shall you not be accomptable to me in this regarde Codicgn Yes truelie and that by an action 1. In what case a man is accomptable at the Giuill Law per actionem aestimatoriam which we call Actionem aestimatoriam because it is conceyued vppon the speciall and prescript wordes of the valuation of the thing a ff de aestima ac in rubro et l. 1. et Insti de actio §. actionum Anglonomoph So by our Law we haue a 2. The difference of a speciall bailie and generall bailie at the common Law speciall bailie and a generall bailie A speciall bailie is he which is bailie after a speciall maner and to a speciall purpose For if a man deliuer an Obligation to an other to receiue so much money as he can get of that which is contained in the bond if he receiue no money vpon the bond a writ of Accompt lyeth not but a writ of Detinue for the bond But it seemeth that if hee receiue a lesse summe then a writ of Accompt will lie But if he receiue the verie summe conteined in the bond then a writ of Accompt will
lie against him as receiuor of his money But if his bailie be also bailie of his mannour and this Obligation be deliuered vnto him as bailie of the mannour then an Accompt will lie against him as bailie of the mannour habentem curam of this Obligation b 2. R. 2. Accompt 46. for a bailie of a mannour may well be tearmed a generall bailie And Brian 2 R. 3. putteth an expresse difference betwixt a generall and a speciall bailie A man saith he may be bailie of a mannour or of an house if he be bailie of a manour he hath 3. What things belong to the charge of the bailie of a manour charge of all the oxen horses ploughes belonging to the manour and of all the profites arising and growing out of the manour and he shall be accomptable for them But if he be bailie of an house he shall not be accomptable but onelie for the house c 2. R. 3. 14. per Br. But this is the difference betwixt a bailie and a receiuor according to the bringing of a writ of Accompt A writ of Accompt will not lie against one as bailie for a certaine and a peculier thing But whereas A. giueth twentie pound to B. to merchandize for him and to his vse for the profite hereof because it is a thing vncertaine a writ of Accompt will lie to the ende that by the writ of accompt the incertaintie may be brought to certaintie d 9. H. 5. 3. per Hyl. But in your case proposed the bailie is to bee intended a speciall bailie But this generall and currant rule we haue touching all bailies as well generall as speciall If the bailie be preiudiciall to his his master he is to make recompence to his master As if my bailie sell a quarter of corne 4. That by the common Law if the baile be preiudiciall to his Master he is to make recompence for fortie pence whereas he might haue sold it for vj. s' viij pence he must aunsweare for this e 6. R. 2. Accompt 47. per Belkn So if he buy thinges for xx pound which are not worth x. li. he shall not be allowed this vpon his accompt though he did as much as he could according to his knowledge f 41. E. 3. 3. per Finch But if a baylie doe a thing which toucheth his bayliwicke and which duetie bindeth him to doe as if hee pay rentes or other dueties which are due of the mannour he shall be satisfied for this otherwise it is if hee doe any thing which toucheth not his bailiwike for then hee ought to haue speciall warrantie g 42. E. 3. 6. per Belkn Canonol Our law dissenteth not from these assertions Nomomath Suppose I giue money to Titius 2 Diuision to buy for mee and to my vse the land of Sempronius lying in dale whether is Titius accomptable to me for this Codicgnost There is no question but he is h ff acti mandat direct l. si vero §. fi but if your selfe or some other to your vse doe 1 By the ciuill law the bailie is discharged if the maister intermeddle buy the lande of Sempronius now is Titius discharged vnlesse he more expediently and with lesse cost might haue bought it of Sempronius i ff eod tit l. si procurator §. mandat act Anglonomoph This is not repugnant to our law and in all cases a writte of accompt lyeth where a man is put in trust to procure the profite 2 That by the common law as wel as by the ciuill hee that is put in speciall trust to puocure the profit of an other is accomptable of another and is not his apprentice for if the king graunt to a village certaine tolle of things which shall bee fold in the same village and the townesmen of the village make collectors to receiue the toll if afterward the collectors will not make accompt hereof they may haue a cōmission out of the Chauncerie to enquire who hath receyued this tolle or money and to heare their accomptes and to determine the matter k Fitzher N. B. 119. f. 114. c. And 8. E. 4. it was said by Nedham that the Churchwardens of a certaine parish might haue a writte of accompt against their predecessors but the parishioners could not l 8. E. 4. 6. per Nedh And so the master of an hospitall may haue a writte of accompt against him that was receyuor or bailie in the time of his predecessor m Fitz. N. B. 117. F. And 30. E. 3. a writ of accompt was made by a master of an hospitall against one as the bailie of his Church and this forme of writ was allowed and the action was brought by him as parson he being not named parson in the writ and yet the writte was allowed because hee demanded nothing which might continue to the Church for euer as he must do in a Iuris vtrū n 30. E 3. 1. 13. H. 4. Accompt 124. 29. E. 3. 60. And 4. E. 3. a writ of accompt was brought for a receit of certain money in the time of his predecessor o 4. E. 3. Accompt 97. and 34. E. 3. in a writ of accompt against one as the bailie of his woode the pr declared how the def was the bailie of his wood to cut it and to sell it and the declaration was allowed without saying that hee did any way administer for this must come in by way of answere and so the writte may bee against the bailie of a mannor habentē administrationem bonorum Moubrays opinion was that the bailie of a wood ought to make account for the fruits of the trees herons and hawkes p 34. E. 3. Accompt 131. But a writ of account cannot be brought against one as his bailie vnlesse he be the bailie of his house land or mannor q 9. E. 3. Accompt 95. And if one ought to be bailie by reason of his tenure though he do not occupie the office yet he shall be charged in a writt of accompt r 18. H. 8. 2. And if a receiuor or bailie do make a deputie yet the writ of account ought to be brought against the bailie himselfe or against the receiuor himself not against their deputies for the deputies resceiue the money and administer the goods to the vse of the master ſ Fitzh N. B. 119. B. but a writte of accompt will lie for the receiuor against his deputie as for the vicount against his deputie t 11. R. 2. Accompt 48. And a man may haue a writte of accompt against a woman as receptrix denariorum u 8. E. 2. brief 847. Fitzh N. B. 118. D. And 4. E. 4. there is an excellent difference taken where a woman is bailie or receiuor to a man and after she taketh a husband a writ of account lyeth against them both as econuerso it lyeth for
thē both x 28. H. 6. 7. de tempore quo c. dum ipsa solafuit but whereas a man a woman be receiuors they after entermarie in the writ they shal be both named receptores a 4. E. 4. 26. 19 H. 6. 5. but a writ of account wil not lie against an infant as bailie or receiuor to any man because the law will not intend that any man will put confidence or trust in him who wanteth discretion experience b 17. E. 2. Accompt 121. 16. E. 3. Accompt 57. 27. E. 3. 77. 19. H. 6. 5. Canonol There is nothing in our law which oppugneth any thing that you haue said Nomomath If the master of the baylie happen to die whether may his executors charge 3. Diuision the bailie with an accompt Codicgnost By our law they may c ff acti mandat direc l. si vero §. f. 1 Anglonomoph That likewise is warranted by 1 Accompt ought to be made to executors by the ciuill law our law for if any haue cause to haue an actiof accompt against his bailie or receiuor if he dye his executors may haue this action yet the common law at the first was otherwise d 7. E. 3. 62 But now it is altered by the statute of Westminst 2. c. 23. and agreeth fully with your law in this For 38. E. 3. one was bailie of a woode to two ioyntenants a writ of accompt was maintained by the executors of him that suruiued e 38. E. 3. 8. to which accordeth 19. E. 3. and that the heire shall not haue a writte of accompt against him 2 The same is warranted by the common law that was receiuor to his father f 19. E. 3. Accompt 56. And 3. Eliz. the administrator brought a writ of accompt g 3. Elizab. 202. Dy. 3 That a writt of accompt by the common law will not lie against executors vnlesse it be in some speciall cases But a writte of accompt will not lie against the executors or administrators of a bailie or receiuor for the receit and occupation of their testator h Fitzh N. B. 117. C. vnlesse it be in the kings case i Littlet tit socage But if the executors doe once enter into an accompt a writte of accompt will lie against them in the case of a common person k 12. E. 4. 10. Or if the bailie or receiuor bee found to bee in arrerrages of accompt and die an action of debt lyeth against his executors vpon an insimul computauerunt l 2. H. 4. 13. And it appeareth by that booke that in the writ he must be named executor and a bailie may haue a writ of debt against the executors of his master for a surplusage of accompt m 13. H. 6. executor 21. Canonol This I can not withstand by any reason in our law Nomomath I pray you let me know the force 4 Diuision and substance of the authoritie which the master may giue to the bailie Codicgnost It is no more but when a man 1 What authoritie may be assigned to a bailife by the ciuill law may do a thing by himselfe hee committeth it to another to be done of him n Gaxalu verb. mandat And hee that doeth execute the authoritie ought not to exceed the limits of his authoritie o Iusti manda §. si is qui. But this difference 2 The difference of an authoritie a charge and command by the ciuil law we put betwixt an authoritie a command and a charge The commaund is determined by the death of him that commandeth the authoritie is not neither is the charge as by this verse though somewhat obscure is not obscurely signified p In his de verbo sig Praeceptum non praecipitat mors praecipientis Mandatum mandatore cadente cadit Canonol But some hold opinion that all these 3 The canon law is against the difference so likewise is the common law three authoritie command charge doe expire by the death of him that commaundeth chargeth or giueth authoritie q Ioan. 14. q. 1 quod praecipit Anglonomoph In deed that is more agreable to our lawe especially in this matter of bailieship as may appeare by diuerse authorities in our law r 2. Eliz. 177. Dy. 5. Eliz. 219 Dy. 2 E. 4. 4. 10. Eliz. 270. Dy. Nomomath I pray you let me know the difference ◠Diuision betwixt a bailie a solicitor an atturney and deputie that I may haue more distinct knowledge of that which I endeuour to know Codicgnost A bailie is he to whom a speciall charge of procuring a mans profite and the valuable 1 The difference betwixt a bailie a solicitor and attourney and a deputie is shewed out of the ciuill law increase of his wealth is committed ſ Gazalup in ver villici an Attourney which wee tearme by the name of Procurator adiudicia is he which in place of iudgement doth for an other man by his warrant complaine or defend t ff mandat l. 1. §. 1. and this may bee done either in the presence or absence of the master but a solicitor which of vs is tearmed Procurator ad negotia is hee that handleth the cause of his master being absent And an Attourney by our law must at the least bee of the age of xxv yeares but a sollicitor may bee though he be but seuenteene yeares olde u c. fi de procu l. 6 A deputie is hee to whome a speciall authoritie is committed to deale in a certaine businesse x c. de offic eius qui vic gerit And there is this difference betwixt a bailie or a deputie and an attourney or a sollicitor because in a baily or deputie the businesse which is committed to them which we call negotium extra iudicium beginneth at the ministerial partie that is the bailie or deputie and is transferred vnto the Lord or master for the effect of the businesse whether it be profit or charge belongeth to the Lord but the busines of the Attourney or sollicitor which we call negotium in iudicio is originally in the Lord or master after as we say transfunditur in procuratorē it is conueied to the attorney or sollicitor a l. si procurator meus ff de neg ge Canonol We make no such difference in our 2 The difference holdeth not in the canon law law for euerie one which doth administer an other mans busines we cal by the name of procurator b 1. q. 3. saluat Anglon The common law doth in this more agree with that which Codicgn hath said I will 3 The cōmon law according to the aforesaid difference doth more agree with the ciuil then with the canon law speake of this difference as the cases in our law concerning it shall come to my memorie The name and office or duetie of a sollicitor
stretcheth verie farre in our law for it may extend to the procheinamy the next friend by whom an infant or one within age shall sue an action or to the warden of the infant by whome the infant shall be defendant in an action c 13. E. 3. Attorney 76. 40. E. 3. 16. And an infant was receiued to sue a writte of error by his warden d 27. Assi pl. 53. Fitz. N. B. 27. H. And an infant shall not remoue hir warden nor disauow his next freind which sueth an action for him e 34. Assis pl. 5. 27. Assis pl. 53. But by a writte out of the Chauncerie the infant may remoue his warden or the Court by their discretion may remoue him f Fitzh N. B. 27. M. 27. Assis pl. 53. But as to the making of an Attourney we haue this rule in our lawe Nemo potest facere Atturnatum nisi habeat proprietatem in re ideo custos non potest facere Atturnatum quia non habet proprietatem g 13. E. 1. Attourney 103. In a writte of Attaint the defendant made an Atturney in the Chauncerie by a common writte de Attornato faciendo the tenor whereof was ad lucrandum perdendum in loquela quae est coram Iustitiarijs per breue nostrum inter I. S. petentem I. N. tenentem de placito terrae c. but the warrant of the plaintifs attourney must be thus ad conuincendum 12. Iur. de placito terrae c. per viginti quatuor c. h 2. E. 3. Garrant dattour 21. But the power authoritie of the attourney is by the iudgement determined and carried backe to the master Wherefore it was saide 4. E. 3. that after iudgement the attourney was not receiued to release the dammages nor to acknowledge satisfaction i 4. E. 3. Attourney 18. 34 E. 3. 95. 34. H. 6 51. 1. E. 2. Garrant 22. contrarie to the booke of 33. H. 6. k But there is great difference betwixt a bailie a deputie for though a bailie haue a larger scope of authoritie and power then an atturney or sollicitor yet he hath but an authority but a deputie hath an imperfect interest mixt with an authoritie which by cases accomodated to this purpose shall be euident The bailie of a mannor cannot lease the lands of his Lord but onely at the will of the Lorde for I doe not take the booke of 2. E. 4. to be law that the bailie may lease lands to hold at his owne will yet that booke giueth an action of debt if a rent bee reserued vpon the lease to the Lorde not to the bailie l 2. E. 4. 4. but 8. E. 4. is the better law in my opinion where it is helde that the baily of a mannor cannot make any lease of the mannor nor of any parcell of it without speciall commaundement of the Lord to doe it m 8. E. 4. 13. But if he cut downe trees or kill any beastes going vpon the land of the manour without lawfull cause an action of the case will lie against him n 2. E. 4. 13. And 19. E. 3. it was held that by no vsage in the world a Bailie or Steward of a manour could lease the freehold o 19. E. 3. Feoff 68. But it is held by Catesby 8. E. 4. that the Lord may giue power in expresse wordes to his bailie to lease land and if the bailie hauing receiued such authoritie doe lease an acre of land vnto a stranger and doth not giue to the Lord notice thereof if the Lord enter into this acre the lessee may punish him by an action of Trespas and yet he had no notice thereof but the reason is because he had before giuen such a power to the bailie p 8. E. 4. 1. et 9. Dutch de Suffolkes c. per Catesb And therefore I thinke that the book of 2. R. 3. which is that the bailie hath power to lease land and to improoue it is to be intended by speciall warrant and authoritie of the Lord committed vnto him But it seemeth that of himselfe he may sell trees if there be great abundance and may repaire houses with them but he cannot reedifie houses with them if they be falne q 2. R 3. 14. 12. H. 7. 25 But that a deputie hath an interest conioined with an authoritie in the thing which is deputed vnto him may be thus prooued 11. Elizab. it was cleerely resolued that two daughters being heires to the Constable of England might make their sufficient Deputie to exercise the office for them and after mariage that the husband of the elder onelie might performe the office r 11. Elizab. 285. Dy. And 39. H. 6. it was agreed by all the Iustices that if a man haue an office and maketh a deputie which misuseth the office the grauntee or inheritour of the office shall forfait it for the deputie is sub officiario and the officer remaineth officer vntill the forfaiture Å¿ 39. H. 6. 32. And these wordes that the deputie is sub officiario are so in my conceit to be vnderstood as the lessee at will is vnder the lessor in case of a demise of land But there may be a forfaiture in the one case and not in the other because in the office deputed there is a speciall authoritie mixt with a speciall interest And Quaere whether for the dette of the deputie the office may not be extended whilest it is in the deputies handes Codign Surelie it seemeth that the deputie 4. That by the ciuil Law contrarie to the common Law there is no maner of interest in a deputie hath no interest at all in the office and that may appeare by the obseruation of auncient times For if a man may compare greater things with lesse the Quaestor of a Prouince was a deputie to the President or Gouernour of a prouince in his absence but yet their power was diuerse and the interest was not assigned but resembled as Caesar doth rightlie distinguish them Aliae sunt legati partes aliae imperatoris alter omnia agere ad praescriptum alter libere ad summam rerum consulere debet t Caes lib. 3. de bello ciuil The office of a Deputie or Lieutenant and the office of a Gouernour or Commaundour are diuerse the one of them that is the deputie doth all thinges by the prescript of his commaundour the other freelie prouideth for the maine and principall consequence of thinges And briefely and substancially he thus describeth the duetie of a Deputie Officium legati fiduciariam operam obtinere u Caes lib. 2. de bel ciui And that a deputie is but as a minister to the principall officer may appeare by Ciceroes precept to his brother Sit annulus tuus non vt vas aliquod sed tanquam ipse tu non minister alienae voluntatis sed testis tuae a Cicer. ad Q. fratr Let not
thy ring be as a vessell to be vsed at any mans pleasure but as thy selfe not as a seruant to an other mans will but as a witnesse of thine owne Nomomath What if the Master doe promise â— Diuision vnto his Bailie or Attourney that if he can procure him the possession of the land in question he shall haue the halfe or some part of it for his rewarde Will your Lawes allow of such an assumpsit Codicgn Our Law doth not allow it But 1. That the bailie or attourney may not take halfe the land for purchasing or compassing the other half he may safelie take a speciall collaterall reward for that particular effect b Gazalup in ver procurat Canonolog So in our Law he that giueth part of the profites of a benefice to be admitted to the benefice is so far from being allowed 2. That the like matter is forbidden by the Canon Law that his fault is accompted to be enorme and indispensabile c 13. disti nerui For it is held to be simonie corrupt cheuisance if any valuable consideration be giuen in such regard pacto vel facto And he that buyeth so is called Simoniacus of Simon Magus and he that selleth so is called Gieziticus of Giezi d 1. q. 1. Studet Anglonomoph In our Law it is held that 3. The common Law agreeth with them there is no diuersitie where a man selleth land depending a writ petitorie of the same land or doe giue it depending the writ for in both cases there is Champertie e 8. E. 4. â—9 Nomomath I praie you let me know whether 7. Diuision anie persons be accomptable by the meere and sole operation and enforcement of Law Codicgn Yes there be two sortes of accomptes publike and priuate The publike 1. Two sortes of accomptants by the ciuill Law accomptes are such as are to be made by a publique officer who is charged with some speciall administration appertaining to the common weale ee L. officialis c. de epis et cler For the Presidents of Prouinces amongest the Romanes did customablie vse to make vp their accompts before they departed out of the Prouince to which accompt they were obliged by Law Therefore Cicero saith Illud certe factum est quod Lex iubebat vt apud duas ciuitates Laodicensem et Apamensem quoniam ita necesse erat rationes confectas et consolidatas deponeremus f Cicer. ad Rufum Priuate accomptes are such as belong to priuate men by the administration of their goodes or affaires as the proxies or bailifes of priuate men Canonolog The same difference doe we 2. Likewise by the common Law hold in matters of accompt g d. l. officialis ibid. Anglonomoph And by our Law there be 3. And also by the common Law some which be accomptable by Law some by a particular charge imposed vpon them or vndertaken of them And in the former case a writ of Accompt will lie though there be no priuitie infacto but onlie in Law Wherefore Mast Prisot said 33. H. 6. that the king might bring a writ of Accompt against one as his bailie who did occupie the land de son tort demesne of his owne wrong And the same Law is as he there affirmeth if a man occupie the manour of a common person de son tort demesne And according to Wangf opinion if a man seise an Infant as wardein in Socage and is not the prochein amy yet a writ of Accompt lieth against him but there he claimeth to the vse of the Infant h 33. H. 6. 2. per Prisot et Wangf And the same Law seemeth it to be to Mast. Brooke i Brook Accompt 8. where a man presumptuouslie and of his owne head vndertaketh to be my bailie a writ of Accompt will lie in such case But if he enter to his owne vse there it seemeth saith he that a writ of Accompt will not lie for there Ne vnques son Receiuor pur accompt render is a good plea. And 49. E. 3. a writ of Accompt was brought against the Lord by the tenant as occupier of the land which the tenant now plaintife holdeth of the defendant in Socage and the def said that the auncestor of the plaintife did hold the land of him by knights seruice wherfore he seised the land in warde k 49. E. 3. 10. By which case it appeareth that a writ of Accompt is admitted to lie against the occupier of the land without any priuitie in facto And 4. H. 7. it is held by Brian that if a man receiue my rent of my tenants without my assent yet I shall charge him for the possession and receit of the rent l 4. H. 7. 6. But a writ of Accompt will not lie against a disseisor because that cannot be without priuitie in Law or in facto as by assignement or as Warden or in like sort or by the pretence of the defendant of occupying to the vse of the plaintife m 2. Mar. Br. Accompt 89. Nomomath I will not presse you any further with mouing doubtes of Accompts but will now make transition to other matters that remaine to be discussed The fifth Dialogue Of Wast done in a mans Ground NOmomath The next matter that by order offereth it selfe to your conference is to treat of Wast done in a mans land And for my more perfit apprehension of the thinges concerning that point I will prescribe vnto you certaine particulars wherein you may imploy your trauell for my further instruction First of what things Wast may be committed 2. What thing properly your Lawes censure and determine to be wast 3. What punishment by your lawes is to be inflicted vpon these that commit wast You shall doe me great pleasure in vnfolding the secrecie of your knowledge hereof And first to begin 1. Diuision with the first let me know of what things wast may be committed Codicgnost Wast may be committed in suffering 1. Of what things wast may be committed by the ciuill Law the walles of houses or closes to fall a Gazalup verb. rudera So if there be a wood which is thick with great tymber trees which in Latin is called Saltus or which is but thinly set with slender trees wherin hunters may ride vp and downe which the Latinists do call Nemus spoile or hauock made in such woods may be accompted wast b C. de â—un pa. et Salluen li. 11. But 2. Cutting of wood in silua caedua by the ciuill Law is â—o wast to cut wood in silua caedua which is apt to be cut is no wast and therfore it is said apt to be cut because it groweth easilie again Neither doth wast seeme to be committed in silua pascua if brush-wood small wood or vnderwood be cut for the better pasturage of the beasts that go vpon the soyle Likewise wast may be
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
more heires then one yet Titius shall haue but fiue pounds because of the collectiue word quisquis e L. ab omnibus in princip ff de leg 1. et l. si quis in fundi vocabul in fi eo ti But if the Testator doe say Quicunque primò ingressus fuerit Castrum habebit centum solidos and two doe enter the Castle together they shall euery of them haue fiue poundes because of the distributiue word quicunque which may be verified either in one or moe doing the same act at one time because primus est qui alium ante se non habet f L. qui filium §. 1. ff de leg 1. And if the Testator saie Quilibet haeredum meorum det Titio decem solidos Titius shall haue as many tenne shillinges as theire be heires g L. si pluribus et ibi no. gl ff de leg 2. which prooueth that by our Law the seuerall heires are not accompted as one heire Canonolog Our Law holdeth not the contrarie Nomomath You haue good reason for it But I pray you resolue me Anglonomoph are these which you call Parceners reputed in your Law as one heire to all intents Anglonomoph Yea to all intentes in regard 5. That by the common Law parceners are reputed as one heire as to the discent of landes of the discent though as to the making of particion it accompteth them as seuerall persons gg Fitzh nat bre 197. A. For a Nuper obisâ— ought to be brought by that Coparcener who is deforced from the 6. Parceners in regard of the particion are accompted as seuerall persons tenements against all the other Coparceners which do deforce her although some of them haue nothing in the tenancie h 32. E. 3. Nuper obijt 7. 9. Ass pla 8. For seuerall tenancie or nontenure is no plea in a Nuper obijt because of the priuitie of bloud i 7. E. 3. 16. 9. E. 3. Nuper obijt 8. 8. H. 6. 8. Nomomath Whether shall a writ de Particione 2. Diuision facienda be vsed against Iointenants or tenants in common as well as against Parceners or some other remedie shall be vsed against them Anglonomoph Before the Statute of 31. H. 1. The statute of 31. H. 8. giueth a writ de Particione facienda as well to Iointenants and tenants in common as to parceners 8. Iointenants and Tenants in common were not compelable by writ to make particion of landes and tenements which they vndiuidedly held But by that Statute a writ de Particione facienda may be sued against them as against Parceners k 31. H. 8. c. 1. Rastall Particion 3. But by the common Law Iointenants may make particion by mutuall assent without deede l 47. E. 3. 22. 19. Ass pla 1. And by such particion the iointure is seuered m 30. Ass pla 8. 2. The three seueral actions against Parceners Iointenants and tenants in common at the Ciuill Law Codicgn By our Law seuerall remedies are vsed against these which be both of one bloud or one familie which you haue tearmed Parceners as an action de familia herciscunda and an other maner of action against such as come to the land by ioint title though not by one discent which you haue tearmed Iointenants namely an action which is called of vs Actio pro socio and an other against these which come not in by ioint title but yet claime vnder these which came to the land by ioint title as by your Law are Tenants in common against whom or betwixt whom for the effecting of particion an action lieth at our Law which we call Actionem de communi diuidundo Canonolog To this our Law is not contradictorie Nomomath Let me now vnderstand in 3. Diuision what sort particion of landes or tenements and other thinges is made by your Lawes Anglonomoph Of landes and tenements the 1. Diuers kinds of partion at the common Law particion by our Law is to haue a seuerall part or portion as to haue a third part if there be 1. A particion to haue a third part or a fowerth part three Coparceners or a fowerth part if there be fower c. And if there be two Coparceners and one of them releaseth to the other 2. A particion by way of release with warrantie this hath been helde to be a good particion in Law n 44. E. 3. Counterplee de vouch 22. 34. E. 1. Partition 17. And particion of landes is sometime made by the graunt of 3. Particion by the graunt of a thing de nouo a thing de nouo as if an hundred shillinges of rent be graunted by one of the Coparceners to two of her sisters for equalitie of particion o 2 H. 6. 14. So when land entailed is deuided betwixt Parceners and a rent is reserued vpon 4. Particion by way of reseruation the particion for equalitie the rent reserued shall be in taile and of the same condition whereof the land was at the time of the particion made p 2. H. 7 5. 15 H. 7. 14. But a particion of a Mill is by taking the third part or the fowerth part of 5. Particion by taking the 3. part or the 4. part of the profites the profites as the case requireth q 11. E. 3. Briefe 478. And 45. Ed. 3. it was ruled that Milles Douecots and the like could not be actuallie locallie and as I may saie artuatim as it were by iointes diuided But if a woman ought to bee endowed of the third part of such thinges the third part of the profites ought to bee assigned vnto her r 45. E. 3. Dower 50. Yet 47. Edw. 3. the case was that two Iointenants were of a Mill and they agreed to repaire the Mill the one of them of the one side and the other on the other side in perpetuum and after the Mill was leased to farme and they tooke the rent seuerallie according to the moities and the Inquest said that their meaning was that the particion should bee good against them and their heires Å¿ 47. E. 3. lib. Ass pla 22. But Quaere whether the Shirife by writ de Particione facienda may make any such particion Likewise particion may be of a reuersion that one of the parceners shall haue the reuersion of three acres and the other the reuersion of other three acres and it may be without deede t Fitzh nat bre 62. D. 28. H. 6. 2. And so particion may bee made of a waie u 21. E. 3. 2. And also of a seigniourie uu 27. E. 3. 29. But of an aduowson the particion is to present by tourne x 38. H. 6. 9. 42. Eliz. 87. Corbets case per Iust Walmesley Co. Canonolog Our Law agreeth fully with 6 A difference in the Ciuill law where a thing that hath partes cohâ—rentes is diuided and where it
hath partes distantes yours in this for either a thing hath partes cohaerentes as a house and this may be diuided by a seuerall occupation Or els it hath partes distantes as a load of woode or a flocke of sheepe and this may be membratim or corporally seuered and diuided y Ber. de exces prae lab lib. 6. Codicgn The verie same difference doth our Law reteine z L. non ampli §. cum bonorum ff de legat 1. Nomomath Well I will sticke no longer in this plaine title Now prepare your selfes for the sifting of more intricate pointes then haue heretofore been handled by yee sithence the beginning of this second conference The seuenth Dialogue Of Conditions NOmomath In the treating of Conditions I will not trouble you with any exquisite definition of Conditions because I doe imagine that I shall draw that out of the resolution of the cases which I shall propose vnto you My first question therefore is this Whether doth the word 1. Diuision Si alwaies import and signifie a condition in matter of contract and limitation of estate Codicgnost It doth not alwaies signifie a condition 1. Si doth not alwaies signifie a condition in the ciuill law but sometime it signifieth an vncertain cause as I promise to Titius ten pound if he do accomplish my busines Sometime it signifieth 2 Sometime it signifieth an vncertain cause 3 Sometime it signifieth a certaine cause 4 Sometime an vncertaine euent a certaine cause as if the iudge do giue iudgement for me sometime it signifieth an vncertain euent conditional as I promise thee twentie pound if I. S. be in Westminster hall such a day and sometime it signifieth a condition or 5 Sometime a condition a conditionall disposition which alwaies suspendeth the premisses or matter precedent a l. itaqueff si cert pet l. de monstra ff de condi demonstr § fi Insti de verb. oblig as if I promise vnto you Stichus my bondseruant if I do not deliuer him vnto you within such a day then I will giue vnto you twentie pound nomine paenae here is both a condition likewise conuentio paenalis which is presently to take effect vpon the breach of the condition b l. Stipulatus §. 1. ff de verb. obli So if the testator say if my bondwoman shall bring forth three children at three labors let thē be free now if the woman bring forth foure children at two labours they shall all bee free for though there bee foure children yet there is but a double labour and in the eye of law bringing forth but two children for all that bee brought forth at one birth are but as one child in regard of their natiuitie as our law intendeth because the law respecteth that quod plerunquefit and for the most part one child is borne at a birth and not two or more c l. Aretusa ff de stat homi l. cum mater § fi ff de fidei commis And in this case benigna interpretatio facienda est in fauorem libertatis And because it can not bee well vnderstood whether of the two children shall be free therefore both by construction of law shall be free Nomomath This seemeth straunge to mee that two children should bee one childe two procreations one birth vnlesse it bee because the parents were one person in law when they begot them And surely Quintilian maketh two distinct procreations in your case therfore he saith Quid refert an ex eisdem prima illa duorum corporum animorumque compago seminibus oriatur sibi quisque firmatur sibi quisque componitur duo pluresue fratres nascuntur fato singulorum d Quintil. in Gemin languent And Esau and Iacob famous twinnes were borne so continuatly as I may say together that the later did holde the fate of the former e Genes 25. Yet God forbid that wee should accompt these two one Saint Augustine boldly and wittily distinguisheth them thus Vnus duxit mercenariam seruitutem alius non seruirit vnus a matre diligebatur alius non diligebatur vnus honorem qui magnus apud eos habebatur amisit aliter ademptus est Quid de vxoribus quid de filiijs quid de rebus quanta diuersitas f August lib. 5. de ciuitat De. c. 4. And therfore surely in this point I take your law to be contrarie to the course of nature Codicgnost It is not in the supposall of one procreation of two twinnes eyther contrarie to nature or arte not contrarie to nature because as there is one conception of two twinnes so there is one puerpercie though it bee finished at diuers times for the labour still continueth not contrarie to arte for the Astronomers hold that twinnes are alwaies borne vnder one Horoscope vnder the same constellation and the same situation of the starres for the Horoscope in Astronomy if it be formally taken is nothing els but horae inspectio if it bee materially taken it is that part of the Zodiacke which ascendeth vpon our hemisphere for the Zodiacke circle is alwayes rowled about and some portion of it doeth alwayes arise to vs some doth alway decline some is in one region of the heauens some in another and children being borne vnder one situation of the stars as they be like in the qualities both of the bodie and minde so in the producing them to light there is but one labour in their cressence in the wombe there is but one operation of nature Nomomath You haue rather aunswered mee then satisfied mee for I am perswaded that I shall neuer bee of your opinion whilest I liue neyther will I applaude to your lawe in this But Anglonomophilax I hinder you from examining the parcels of Codicgnost his precedent speech of conditions Anglonomoph I will not meddle with Codicgnost his midwiferie in handling matters of law but will turne saile from it as Cato disliked to prattle with women in the Senate house g Liui. li. 34. But as to the assertions of law which he hath set downe they shal not glance frō me without touch Whereas he hath said that this word si doth signifie an vncertaine cause in 6. Si doth signifie an vncertaine cause at the commō law their law so it doth likewise in ours as appeareth by Boldes case in my L. Dyers reportes which was thus R. Bolde brought an action of debt against Molineux for 30. pound vpon an obligation endorsed with this condition that if it fortune Ioane Molineux to decease before the feast of S. Iohn baptist which shall be in the yeare of our Lord 1553. without issue male of her bodie by the said R. B. lawfully ingendred then liuing that then c. and the defendant said that after the making of the said writing before the said feast the aforesaid Ioane at B. in the countie of L. dyed without issue male of the bodie of the said woman
by the said R. B. lawfully ingendred then liuing and the plaintife said that hee ought not to bee barred from his action for he said that after the making of the said writing before the said feast namely the 12. of Iune anno c. the said plaintife at M. in the countie of Lancaster tooke to wife the said I. and they had issue betwixt them H. Bolde and after before the said feast the said I. and the said B. dyed the said H. being the sonne of them both at the time of the death of the said I. being then full liuing and after and before the said feast namely the twelfth of Iune the saide H. B. at B. aforesaid dyed and the defendant hereupon did demurre in law And the question was whether this word tunc in the condition should be referred to the time of the death of the wife and it seemed to Mountague and Baldwin that it should not but that it ought to bee referred to a time certaine for euerie tunc relateth to his quando but they thought that it should bee referred to the feast which is certaine and not to the death of the woman which is vncertaine but Shelley and Knightley thought otherwise For in diuers cases relation shall not bee made ad proximum antecedens as if a man make a lease for life the remainder in taile the remainder ouer to I. S. in forma praedicta this shall not bee referred to the estate taile which doth next preceed because it wanteth the word heires to make an estate tayle and therefore it shall be referred to the first estate Which later opinion if it bee lawe then by our law si may signifie and may make other wordes to signifie an vncertaine cause of the accomplishment of a condition h 28. H. 8. 14. Dy. Boldes C. And whereas hee hath said that sometimes it signifieth a certaine cause as if the iudge doe giue iudgement for me So likewise it signifieth a certain cause in our law 7. Si signifieth a certaine cause at the common law for 8. E. 4. the case was this An action of debt was brought vpon an obligation by the Dutchesse of Suffolke the defendant said that it was endorsed with this conditiō that if the defendant should stand to the arbiterment of the said Dutchesse touching all maner of suits c. betwixt him one B. that then the obligation should be void c. And this was admitted to be good and thereupon it may be concluded that si sometimes in our lawe importeth a cause certaine as the Dutchesse in this case was a certaine cause of the arbiterment i 8. E. 4. 1. 9 Dutchesse de Suffolke C. So 23. Eliz. the case was that two were bound to stand to the arbiterment of two if they did make their awarde within two daies after the date or making of the said obligation and the obligation bore date die Sabbati ante prandium and the award was made the same day post prādium and this was held to be good because it shall bee intended that it may be made at any time after the date of the obligation vntill two daies immediatly following be past And as in 8. Si by the common law may signifie an vncertaine euent the ciuill law so likewise by our law si whether it be expressed or implyed may signifie an vncertaine euent for if a rent be graunted for life to I. S. the remainder to him that shall first come to Paules the next day in the morning this remainder is good though it be vpon a si implyed if I. S. dye not before the next day and if one come to Paules the next day in the morning and if hee which commeth thither be a person able to take by the graunt k Assis pl. 47. Perk. 13. sect 56. And whereas he saith that by their law it signifieth 9. Si. signifieth a condition by the common law a condition or a conditionall disposition so it doth likewise in our law as it is well recited in my Lord Dyers reports out of Bracton Scito quòd vt modus est si conditio quia causa And as l 4. Mari. 139. Dy. to his conceited case of the puerperie I take his reason to bee verie good that benig na interpretatio facienda est in fauorem libertatis Codicgnost What say you now sir Nomomathes I say that as for such a paradoxical fantasie Non persuadebis etiamsi persuaseris 2 Diuision But I pray you resolue me this If I sel to another certain land for an hundred pound vnlesse another the next moneth following doe giue more for it by fiue pound at the least whether doth this word vnlesse make a condition or it is an idle clause and vneffectuall Codicgn I take it clearely to make a good condition for though the sale be pure and vnconditionall 1 The word nisi or vnlesse doth sometime signifie a condition at the ciuill law yet it is resoluble and defeasible vpon a condition contingent m l. 2. §. si in diem ff pro emp. for the words following may qualifie and gouerne a direct graunt or deuise as if the testator say I deuise vnto A. a C. li. for the making of my tombe n l. quib diebus §. fi ff de condi de mon. or if he said I deuise vnto him a hundred li. pro eura liberorum meorum sustinenda or if he said I deuise vnto him so much to endow certaine poore maydens or to ransome certaine prisoners out of captiuitie here there is no condition implyed but onely a limitation or modification to what intent or purpose the deuise is o l. mille C. de epi. et cle So if the testator say I deuise to Titius C. li. 2 Law is a modification or limitation of a graunt is made which I will shall be paied vnto him out of my money which I haue in such a place as namely in such a closet or such a chest if in the closet or chest there bee no money then there is nothing due but if there be a lesse summe yet all the mony is due by reason of the intent p l. quidam testamento ff de leg 1. l. Lucius ff de ali ciba And if the testator deuise to euerie one of his free men a seuerall certaine yearely maintenance out of his landes in Dale if his landes in Dale be not sufficient for these seuerall maintenances yet they ought to be supplyed of his other landes q l. Paulo Callimacho §. fi de leg because the adiection and mentioning of the place was onely vsed for a certaine demonstration of the lande which should bee charged with payment and not for the taxation or restraint of the legacie for legatum non restringitur But if a man deuise ten pound to his daughter vntil she mary by this is intended a yearely paiment of x. li. r
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
vnto you vpon the aforesaid condition I shall now owe vnto you absolutelie and without condition whether in this case is the agreement of any force to defeat the condition Codicgn By our Law it is of force to ouerthrow 1. An agreement by word may defeat a condition in writing at the ciuill Law the condition for it is a renewing of the bond as we tearme it and so the later bond shall preiudice and swallow vp the former k ff de nous et C. eo ti Anglonomoph Our Law holdeth the contrarie 2. The common Law is quite contrarie to the aforesaid assertion of the Ciuill Law and the reason is this because it is an inconuenience in reason that an especialtie sealed and solempnlie deliuered should be auoyded by the bare agreement of the parties which is but a meere matter in facto l 1. H. 7. 14. Dones case per Dauers Yet in some cases it is not inconuenient that an obligation should be auoided by a matter in fasto where there is a strong and peremptorie operation in Law As if a man be bound to a feme sole and afterward he marieth her Or if a man be bound to a villaine and after he purchaseth the manour to which the villeine is regardant the mariage the purchase may be pleaded in auoidance of the especialtie So in an auoydance of a statute merchant it is a good plea to saie that part of the land is purchased by the reconusee So in a writ of Annuitie it is a good plea to saie that he hath paied it in a foreine countie So if a man by deede graunt a rent if the grauntee surrender the rent with the especialtie this is a good auoydance of the especialtie m 1. H. 7. Dones case per Keble But where a man was bound to paie xx nobles at a certaine day and if he failed that then he would loose x. li. paiable at the same day an action of Dette was brought for the x. pound and it was allowed n 26. E. 3. 71. for here there were two seuerall bandes one of them consequent vppon the other but not abolishing the other And if a defeasance vpon a statute marchant be that the payment of the money should be made at Bristowe and the conusee receiued it at an other place this is a good discharge of the statute for now the Law hath discharged it o 46. E. 3. 4. But one matter of recorde may be auoided by an other Therefore the case was 20. E. 3. in a writ of Accompt the defendant said that the plaintife by a deede which he shewed forth did graunt that if the defendant did make a reconusance vpon statute marchant such a daie at Canterburie to the plaintife that the writ of accompt should be held as voide This was admitted by the Court to be a good agreement to auoide the writ of annuitie as soone as the statute is deliuered to the plaintife p 20. E. 3. Accompt 79. Nomomath I would know Codicgn what your Law doth determine of impossible conditions whether it doth vtterlie reiect them or what force and effect it assigneth vnto them Codicgn Impossibilitie our Law maketh 1. Three sortes of impossibilities at the Ciuill Law three-fold iuris facti et naturae Iuris as when there is a repugnancie in the condition so that the Law doth wholie frustrate and disanull the condition or els it is directlie contrarie to the Law As if a man should contract with a 2. What impossibilitas iuru is at the Ciuill Law woman si prolem euitauerit or si adulteram se praestiterit the one of these being against the Law of nature the other against the Law of God both of them are by our Law made voide q C. fi de condi appo And indeed there is a repugnancie betwixt the contract and the condition mariage being a thing instituted and ordeined for the procreation of children and the auoyding of fornication Impossibilitas facti is when 3. What impossibilitas facti is at the Ciuill Law there is great difficultie in the thing that is to be done and it is not possible to bee easilie done howbeit it is not absolutelie impossible to be done this impossibilitie of the condition doth frustrate the act precedent As if I say that Stichus my villeine shall be free if he will giue a thousand pound for his freedome this though it be not impossible yet it is verie difficult for a villein to performe because of the difficultie the Law will imagine that I did but trifle by this forme of enfranchisement and so Stichus shall gaine nothing by it r L. cum haere §. 1. ff de sta li. So it is if a man being at Yorke bee bound to paie to an other at London x. pound before sunne-set this though it be not impossible in it selfe because a Pegasus or poast-horse may help the matter yet because it can not with any facilitie be pefourmed within so short time our Law holdeth the condition to be voide ſ Insti de verb. obli §. loca Impossible by nature that is said to be which is 4. Impossibilitas naturae by the Ciuil Law repugnant to naturall reason and contrarie to the course of nature As if I giue a horse to one vppon condition that he shall touch heauen with one of his fingers or that he shall extinguish fire with oyle or that he shall build a village in the cloudes t Ioan. ad reg Nemo li. be reg iur Nomomath These differences haue been well opened by Codicgnostes Now I will request you Anglonomoph to explane and illustrate them by cases Anglonomoph I will particularlie speake of 5. Which be conditions against Law by the censure of the common Law them all And first of Conditions against Law If estates in land be made vppon conditions contrarie to Law the estates be good and the conditions voide But then the estates must not begin neither take effect by force of the condition neither depende vpon such conditions as to the existence of them But if a man seised of land doe enfeoffe a straunger vppon condition that if the feoffour doe kill I. S. one of the Queenes subiectes it shall be lawfull for him to reenter the estate is good and the condition voide u 4. H. 7. 4. 2. H. 4. 9. So it is if one enfeoffe an other vpon condition that if the feoffour doe burne the houses of I. S. it shall bee lawfull for him to reenter uu Perk. Condic 139. for such conditions are impossible to bee good by Law But if a lease for life be made or a lease for yeares of land vpon condition that if the lessee kill I. S. within such a day that then he shall haue and hold the land to him and to his heyres foreuer notwithstanding that the lessee do kill I. S. within the day yet his estate
is not enlarged because the condition was against law the estate should haue beene enlarged by the performance of the condition but notwithstanding such condition yet the lease is good because that did not beginne by the condition But if an obligation be endorsed with a condition directly contrarie to law both the obligation the condition be void a 8. E. 4. 13. 2. E. 4. 3. And if a man be bound that he shall keepe the obligee without damages and doe not shew wherein such condition is voide because hee may suffer damages for committing treason murder or other felonie which thinges are against law and it is also against law to saue him without damages for such thinges so that the cōdition is void but the obligation is not void because such things are not expressely rehearsed within the condition so that the condition is not directly contrarie to law b 9. H. 4. Conditions 6. And conditions which are repugnant in themselues are voide in law as if a feoffement or gift in tayle be made that the feoffee or donee may not take the profits or vpon condition that they shall make no waste or vpon condition that the wife of the feoffee c. shal not be endowed or if a lease for life be made vpon condition that the lessee shall doe no fealtie these estates be good and the conditions voide or if an annuitie be granted prouiso that it shal not charge the person of the grauntor the graunt is good the condition is voide c 21. H. 30. 20. E. 4. 8. But if a man seised of land in fee lease the said land for yeares by indenture rendring rent prouiso that the lessor shall not distrein for the rent this is a good prouiso because the lessor may haue an action of dette d 5. H. 7. 7. but land or rent may be giuen to a man in taile so that he may alien to the profits of his issue and this is a good condition for it is agreeable to law and the donor may as wel giue conditionally as simpliciter in the taile e 46. E. 3. 4. G. garrantie 18. And 7. H. 6. it was held by all the Iustices in the eschequer chamber beside Iune that if a man make a feoffement with warrantie prouiso that the feoffee shall not vouch him and his heires and that if he doe the warrantie shall be voide this is a good prouiso But if the prouiso had beene that he should neyther vouche nor rebutte the prouiso had beene void for that had cut off all the force of the warrantie f 7. H. 6. 44. And if two grant custodiam parci de A. to I. capiendo feoda quae B. nuper parcarius cepit prouiso quòd scriptum non extendat ad onerandum vn des grauntors this prouiso was taken to be void because it restreyneth all the effect of the graunt in regarde of him and if land bee giuen in taile the remainder in fee vpon condition that if the donee or his heires do alien in fee that the donor or his heires may enter the opinion of the court was that this was a good condition for a man may make a condition in the negatiue of any thing which is prohibited by the law as if he make a feoffement prouiso that the feoffee shall not not committe felonie or that hee shall alien within age or in mortmayne and a man may enfeoffe A. and his wife vpon condition that they shall enfeoffe none other for that were a discontinuance otherwise it is that they shall not leuie a fine for that is contrarie to their estate g 10. H. 7. 8. So if a man make two executors prouiso that the one of them shall not administer this is a void prouiso because it restrayneth all the authoritie giuen in the premises as to him and the intent which agreeth not with lawe is to no purpose h 19. H. 8. 4. Dy. p Brud Englef And it hath beene agreede that if a man doe limitte an vse in taile with a prouiso that if cesty que vse doe such an acte his estate shall cease during his naturall life that this prouiso is repugnant and against lawe for the estate can not be determined in part And Iustice Walmsley sayd that when an estate is giuen to one it may bee defeated wholly by condition or limitation but it cannot bee determined in parte to one and giuen in parte to another for that is repugnant to the rules of law as if a man make a lease for life vpon condition that if the lessee pay not twentie pound that a nother shal haue part of the land this future limitation 6 What conditions impossible in fact are at the common law is voide i 41. Eliza. Corbets case 86. b. Com̄ And as to conditions impossible in facte such conditions if they go to the defeasans of an estate the estate notwithstanding remaineth good but estates cannot bee enlarged by such a condition impossible and if an obligation bee endorsed with a condition impossible the obligation is good and the condition is voide Therefore if a man seised of land doe enfeoffe a straunger vpon condition that if the feoffor go on foote from London to Stamford in a day that then it shall bee lawfull for him and his heires to reenter the condition is voide quia impossibile the estate good e 14. H. 8. 32. but if A. bee bound to B. that C. shall appeare in the common place Octab. Trin. in an action of debt brought by the said B. against C. retournable at the same day and C. appeareth the same day and his appearance is not recorded now the obligation is forfeited But if in this case C. had dyed before the day of the returne the obligation had beene saued because the condition became impossible by the acte of God f 9. E. 4. 25. 15. H. 7. 2. 38. H. 6. 19. Nomomath Now I pray you shew vnto me 6. Diuision whether conditions are to bee expounded strictly and according to the rigorous sence of the wordes are according to equitie and the exigence of the case so that the circumstances of a mans speech or actions shal haue the regiment of conditions Codicgn Conditions are in our lawe taken 1. Conditions in the ciuill law are taken according to equitie according to equitie For if I graunt to one an annuitie of ten pound yearely quamdiu res meas gesserit the law maketh this sence of these wordes that he shall haue ten pound yearely si res meas gesserit together with a limitation g l. pater §. fi ff de condi demon So if I buy of one the fishes which are taken by him though he haue not alreadie taken any fishes yet the wordes doe imply a condition that that the buyer shall haue them if any bee taken So if I say Acceptis centum solidis a Titio instituo eum haeredem it is
not meant that in regard of fiue pounde receiued of Titius I doe make him my heire or executor but the words are conditionally meant if the testator doe receiue 5. li. of Titius c h l. a testatore ff de condi demon So if I deuise to one xx li. pro docendo talem discipulum this pro doth signifie a condition because by common vsage prius docendus est discipulus quà m soluendū salarium magistro i l. nec semel ff qu. di le ce So if I doe contract with a woman in this sort I promise vnto you A. that you shal be my wife donec terra ponatur super oculos meos these words are not generally to bee vnderstood for so the partie may lay earth vpon his eyes and slip the collar and breake promise but they must be vnderstood according to common intendement that she shall be his wife vntill his carkasse bee couered with earth that is vntill he be buried so it is if he should haue said Donec oculi os mihi claudantur k c. ex literis 1. de spon Angl. Our law many times taketh the words 2 The commō law taketh conditions many times strictly of a condition strictly to preserue an estate A lease was made to one vpon conditiō that the lessee shal not alien to A. the lessee alieneth to B. who alieneth to A. the cōditiō is not brokē for a condition which goeth to defeat an estate must be taken strictly l 31. H. 8. 45. Dy. And 28. H. 8. the case was thus A lease for yeares was made by indenture the lessee did couenant and grant that if he his executors or assignes did alien that it shold be lawful to the lessor to reenter after he made his wife his executrix and dyed the woman tooke an other husband which aliened The first question was whether the wordes of the couenant abouesaid did make a cōdition And if it were a condition the 2. question was whether there were any breach of condition in the case Some held that there was no breach of condition because the husband was possessed of the tearme by acte of law is not an assignee no more then a tenant by the curtesie is or the land of a villaine But Browne and Shelley held that the husband was an assignee in law and that the land was subiect to the cōdition into whose hands soeuer it did come m 28. H. 8. 6. Dy. But lately in Ridgeleys case the condition was extēded by equity for the safegard of the party The case was thus A man was bound to another in a c. l. that he shold discharge the obligee saue him harmeles of all suits incumbrances against I. S. and after the said I. S. sued the obligee proceeded vnto iudgement wherefore the obligee brought an action of det vpon the obligation and the defendant pleaded non damnificatus est And Beamond Sergeant did maintayne the plea in his argument because that hee was not damnified in the eye of law vntill the goodes or the lande or the person of the plaintife were actually charged For before that time he was onely chargeable but not charged Sergeant Harris argued to the cōtrarie for he said that he was chargeable to the execution of the partie so not saued harmelesse two sorts of damages were held by Iustice Walmesley the one executorie the other executed executorie which a man may in future time sustayne Executed as if the land or the person shoulde bee in present execution And if the disseisee make a release to the disseisor and a straunger cancelleth the deede of release the disseisor may haue an action of trespasse against him and yet the disseisor doth continue possession and is not as yet actually damnified And Iustices saide that the land of the party was in some sort charged for none in such case would buy the land of the partie but onely vnder the value because of the iudgement executorie n 33. Eliz. Ridgeleys c. But wee haue a rule in our law that when a condition is to bee performed to a straunger it is to bee performed most strictly and if the condition bee performed at an other place this is not sufficient o 36. H. 6. 8. And 21. H. 6. it is said that if a man be bound that he or his feoffees of the mannor of W. shal graunt to the obligee 20. s. rent for tearme of life and he hath three feoffees two of the feoffees cannot graunt this rent p 21. H. 6. 19. But 7. E. 4. it was affirmed in the kings bench that if a man were bound to make one a sure sufficient and lawfull estate in certaine land by the aduise of I. S. if he make an estate according to the aduise of I. S. be it it sufficient or not or lawfull or not he is excused of his bond and a like matter was in the common place the same terme and they were of the same opinion q 7. E. 4. 13. Nomomath I wold gladly be satisfied in this when a man maketh one his heire or executor 7 Diuision and if hee refuse to performe any thing that is comprised in his will then he willeth that I. S. shall bee his heire or executor and shall performe his will and shal seise his goods and enter into his lands post haereditatē aditam though the heyre or executor haue intermedled with the will and haue performed some thinges according to the intent of it Now if the Testatour die and the heire or executor haue perfourmed some thinges of the will but refuseth to perfourme other some and hath seised the goodes and entered into the landes of the partie deceased Whether may I. S. enter vpon him for the condition broken and defeat his whole interest in the landes or goodes or shall he still reteine part of the landes and goodes because he hath perfourmed part of the will Codicgn I. S. or the substitute of the Testatour 1. There may be a substitution of one heire after an other or of one executor after an other at the Ciuill Law is now by the will and breach of the the condition become directly the heire or executor to the Testatour And all the authoritie or interest of the fomer heire or executor is vtterlie determined frustrated and defeated r Insti de vulga substi §. quo casu 2 The heire at the ciuill Law must succedere in vniuersum ius defuncti for the authoritie or interest of the heire or executor by our Law may not be apporcioned but he must succedere in vniuersum ius defuncti ſ ff de verb. signif l. nihil aliud est haereditas et l. bonor eo tit And there is an other substitution in our Law which we call a reciprocall substitution and it is thus The Testatour saith I doe make S. and T. my sonnes within age my heires and
I substitute the one of them to the other that is if the one die the other shall haue all and the mother nothing at all t Gazalup verb. substitutio brem loqua Anglonomoph I haue noted in your wordes Codign two thinges which haue no small coherence and agreement with matters of our Law First in that by will according to your Law an entrie may be limitted to a straunger 2. In that ye hold that he which defeateth the estate of him that breaketh the condition shall defeat his whole estate and shal entirely claime the possession Which two assertions I shall seuerally prooue by cases of Law beginning with the first A man seised in fee of landes deuisable 3. By Will according to the common Law an entrie may be limitted to a stranger did deuise them to one for terme of his life and that he should be a Chapplein and that he should chaunt for his soule all his life time and that after his decease the tenements should remaine to the Cominaltie of a certaine village to finde a chappleine perpetuall for the same tenements and he died and the deuisee entred and held the landes sixe yeares and was no chappleine and the heire of the deuisour outed him and he brought an Assise And it seemed to the Court that the limitation that he should be a chappleine was no condition and that the heire could not enter for then the remainder should be defeated which may not be because by the intent a perpetuall chappleine ought to found u 29. Ass pla 17. Whereby it appeareth that they in the remainder were to take aduantage in this case of the breach of the thing that was to be done and not the heire So in Fitz Iames his case the clause of entrie was limitted to him in the remainder for breach of the condition by the particular tenant for it was helde that the limitation might determine the estate and that being determined he in the remainder might enter uu 13. et 14. Elizab. Com̄ 403. Newyses case Also 34. E. 3. the case was that a man had issue a sonne and a daughter and deuised land deuisable to one for life vpon condition that if the sonne should disturbe the tenant for life that the land should remaine to the daughter and the heires of her bodie the father dieth the sonne disturbeth the tenant for life who dieth the daughter brought a Formedon and it was allowed a 34. E. 3. Formedon pla vlt. But yet the aduantage of 4. The aduantage of entrie limitted to a stranger is in the late reports doubted of entrie by vertue of the limitation is not in other late reportes so cleare but hath been greatlie doubted of Stubes being Cestuy que vse deuised to his wife certaine land during her life ita quòd non faceret vastum the remainder to his yonger sonne in taile and died after the Statute of 27. of ioyning the possession to the vse is made the woman dieth the question was who should enter for the condition broken the heire the feoffees or he in the remainder b 3. Mar. 117. Dy. And an other case was equally doubtfull Wilford was bound in an Obligation without daie of payment limitted and deuised his land to his executors vppon condition that if they did not paie the said summe according to the obligation that the deuise should be voide and that then A. should haue the land to him and to his heires vppon condition that hee paied the money Wilford died A. died the executors are requested to pay the money and they would not pay it the question of the booke left vndecided is whether the heire of A. may enter into the land and paie the money c 3. Mar. 128. Dy. In like maner land in Gauelkind was deuised to the eldest sonne vpon condition that he should paie 100. li. to the wife of the deuisour he fayled of the payment it was questioned by Manwood whether the yonger sonne might enter into the moitie as by an implied limitation d 15. Eliz. 317. Dy. But touching such entries by force of some speciall limitation or condition Mast. Frowike giueth a good rule 21. H. 7. that an estate of inheritance can not cease by vertue of a condition broken onelie but there ought to be also an entrie But otherwise it is of a particular estate and the reason is because such an estate may be determined by word as by surrender and by the same reason it may cease by the wordes of the condition e 21. H. 7. 12. per Frowike Now that the 5. That the entrie for the condition broken defeateth the whole estate whole estate of the feoffee or donee is defeated by the breach of the condition and the entrie of the partie may be prooued by diuerse authorities in our Law and that there can be no fraction of the condition 14. Elizab. all the Iustices agreed And so was iudgement giuen in Winters case that by the graunt of the reuersion of part of the landes with which a condition runneth the condition is wholie confounded because it is a thing penall and entire and may not be apportioned nor diuided f 14. Elizab. 308. Dy. And 33. of Henrie the eight according to Mast. Brookes report it was helde for Law that if a man giue land in taile or lease it for life rendring rent with a condition for default of payment to reenter now if he lease part of the land to the donour or lessour or if the donour or lessour enter into part of the land he cannot enter for rent behind after but the condition is wholie suspended because a condition cannot be apportioned or diuided Therefore some scruple may with good reason be made of the case 16. Elizab. in my Lord Dyers reportes A man leased land for yeares vppon condition that the lessee should not alien the land to anie person without the assent of the lessour nor any part of the land the lessour giueth licence to alien part and the lessee alieneth the residue without licence it was adiudged that the lessour may enter notwithstanding the dispensation of the condition ex parte g 16. Elizab. 334. Dy. Howsoeuer 5. Edw. 6. be to the same purpose that a man enfeoffed two vppon condition to make backe a lease for life to the feoffour the remainder in fee to a straunger the one of them onelie maketh estate accordingly And by the opinion of manie this is good for a moitie by the dispensation of the partie who might take aduantage of the condition by his acceptance of estate h 5. Ed. 6. 69. Dy. For 23. Elizab. the case was such A man was bound in an hundred pound to giue to the obligee the moitie of all the fishes taken by his water-mille he tooke twentie one fishes and gaue tenne to the obligee and an action of Dette was brought vpon the obligation and the plaintife recouered
of oathes The Diuisions and principall contents of the second Dialogue of Actions vpon the Case 1. Diuision 1. THe reason is shewed wherefore actio iniuriarum hath so generall a name at the Ciuill law 2. The barrister compareth an action vpon the case at the common law to D. Stephens his water 2. Diuision 1 An action vpon the case lieth against the keeper of a common Inne if goods bee embeasiled 2. If a straunger lodge with me by my consent and do embeasil goods the Innekeeper shall not bee charged 3. If my seruant embeasill my goodes the Inkeeper shall not be charged 4. By the ciuill lawe the Innekeeper is to bee charged with action if his seruants steale goods 5. If through the default of the master of a shippe goods be stolne the owner of the ship is to make recompence 3. Diuision 1 By the ciuill law it is not necessarie that there be mutuall consideration in contractes 2. Three sorts of contractes by the ciuill law 3. What is a proper contract by the ciuill law 4. What an improper contract is by the ciuill law 5. What a most improper contract is by the ciuill law 6. The common-law admitteth no contracts but such as be proper 4. Diuision 1 That no fare ought to bee payed for them that die in a ship if the master of the ship did assume to bring them safe to shoare 2. If a child be borne in seafaring nothing is to bee payed for that childe 3. The barrister putteth a case of carying a horse safe and sound ouer Humber 4. The Cannon law agreeth with the ciuill in cases of improper contractes 5. Diuision 1 That by the common law want of skill is to be punished by an action vpon the case if there be an assumpsit eyther implicatiue or expressed 2. That by the ciuill law want of skill onely is punishable 3. By the Canon law crassa supina ignorantia non excusat 6. Diuision 1 Circumuention dolo malo punishable by the ciuill law 2. A difference at the ciuill law betwixt dolus malus and dolus bonus 3. The same difference the Canon law obserueth 4. Dolus malus punishable at the common law by an action vpon the case or a writ of deceit 7. Diuision 1 Contemptuous speeches are not punishable by the ciuill law 2. Opprobrious speeches which proceede of malice are punished 3 It is obiected that the Grecians did tollerate sarcasmicall speeches against wicked men 4. Aristophanes is condemned for his bitter detractions 5. The deuisors publishers of libels punishable by the ciuill law 6. The cannon law is seuere against such 7. Reprochfull speeches punishable at the common lawe by an action vpon the case The Diuisions and principall contents of the third Dialogue of Debtes 1 DEbt may grow by writing or especialtie 2. An obligation may be by deed indented at the ciuill law 3. What an instrumentum garrantigiae is at the ciuill law 4. Three sorts of bonds by the ciuill law 5. Debt may grow by way of contract 6. The canon law agreeth with the ciuill in matters of bonds debts 7. Debts may grow by contract by the common law 8. An action of debt lyeth at the common lawe for the loane of money 9. An action of debt lyeth at the common law for a meere duetie 10. An obligation made after a contract dissolueth the contract by the common law 11. A man may bee bound by deed indented by the common law 12. A statute-bond is resembled to an instrument of warrantie at the ciuill law 13. A deed razed is not good at the common law 14 The common law agreeeth in substance with the ciuill law in the three sortes of bondes 15. The common law dissenteth from the ciuil law in not making the redeliuerie of a bond an acquittance 2. Diuision 1 That by the ciuill law the executor succeedeth in vniuersum ius defuncti 2. Insinuation of a will necessarie by the ciuill law 3. By the ciuill law the executor or administrator ought to make an inuentorie of the goods of the partie deceased 4. The power of the executor dependeth wholly vpon the will of the testator by the Common lawe 5. According to the common lawe a deuise is of no force vntill the death of the deuisor 6. The common law agreeth with the ciuil in the insinuation of willes 7. That an action of debt wil lie against the ordinarie 8. The common law agreeth with the ciuill in administring goodes comprised in the Inuentorie according to the testament 9. What may properly bee said to bee assets in the hands of the executors 3. Diuision 1 The rigorous lawe of the Romanes in their execution for det 2. The execution of the Romaines greatly to bee reprooued because it did depriue men of buriall 3. That the rigorous Law of execution for dette was afterward abrogated by the Romanes 4. That by the Ciuill Law execution lieth for dette vpon the goods of the partie and how far forth the word goodes extendeth 5. A fower-fold execution for dette at the common Law 6. The execution of goodes by Fieri facias is opened 7. Execution by Elegit is opened 8. Execution vpon statute merchant is opened 9. Execution by Capias ad satisfaciendum is shewed The diuisions and principall contents of the fourth Dialogue of Accomptes 1. Diuision 1. IN what case a man is accomptable at the Ciuill Law per actionem aestimatoriam 2. The difference of a generall and a speciall Bailie at the common Law 3. What things belong to the charge of the Bailie of a Mannour 4 That by the common Law if the Bailie be preiudicial to his Master he is to make recompence 2. Diuision 1 By the Ciuill Law the Bailie is discharged if the Master intermeddle 2. That by the cōmon law as well as by the Ciuill he that is put in speciall trust to procure the profit of an other is accomptable 3. Diuision 1 Accompt ought to be made to the Executors by the Ciuill Law 2. The same is warranted by the common Law 3. That a writ of Accompt by the Canon Law will not lie against executors vnlesse it be in some speciall cases 4. Diuision 1 What authoritie may be assigned to a bailie by the ciuill Law 2. The difference of an authoritie a charge and commaunde by the ciuill Law 3. The Canon Law is against the difference So likewise is the common Law 5. Diuision 1 The difference betwixt a Bailie a Sollicitor an Attourney and a Deputie is shewed out of the ciuill Law 2. The difference holdeth not in the Canon Law 3. The common Law according to the aforesaid difference more agreeth with the ciuill then with the Canon Law 4. That by the ciuill Law contrary to the common law there is no manner of interest in a Deputie 6. Diuision 1 That the Bailie or Attourney may not take halfe the land for the purchasing or compassing of the other halfe 2. That the like matter is forbidden
by the Canon Law 3. The common Law agreeth with them 7. Diuision 1 Two sortes of Accomptants by the Ciuill Law 2. Likewise by the Canon Law 3. And also by the common Law The diuisions and principall contents of the fifth Dialogue of Wast done in a mans ground 1. Diuision 1. OF what thinges Wast may be committed by the Ciuill Law 2. Cutting of Wood in Sylua caedua by the ciuill Law is no Wast 3. The common Law agreeth with the ciuill that Wast may be in the decaie of an house 4. A speciall couenant will binde the partie to repaire houses and walles battered downe by violence vnresistable by the common Law 5. The tenant by the common Law may cut Trees for the reparation of houses 6. The common Law agreeth with the Ciuill in the cutting of silua caedua 7. The common Law agreeth with the Ciuill in tollerating the lopping of Trees which may be auaileable for their groweth 2. Diuision 1 That both by the Ciuill and common Law where land is empeired by the inundation of water this is wast 3. Diuision 1 That by the common Law he that commeth to land by an other mans graunt ought to vse it according to the graunt 2. The digging for coale or claie in the land demised is Wast by the common Law 3. The suffering of the ground to become rushie or weedie by the common Law is Wast 4. That the Ciuill Law agreeth with the common Law in suffering one to amend conduit-pypes in an other mans ground 3. Diuision 1 The punishment of Wast by the Ciuill Law 2. The punishment of Wast by the common law The diuisions and principall contents of the sixth Dialogue of Parceners 1. Diuision 1. TWo sortes of Parceners Parceners by the common Law and Parceners by Custome 2. Who be Parceners by the common Law 3. Who be Parceners by the Custome 4. That by the ciuill Law where 3. heires are instituted they are not reputed as one heire 5. That by the common Law Parceners are reputed as one heire as to the discent of the land 6. Parceners in regard of the particion are accepted as seuerall persons 2. Diuision 1 The Statute of 31. H. 8. giueth a writ de Partitione facienda as well to Iointenants and Tenants in common as to parceners 2. The three seuerall actions against Parceners Iointenants and Tenants in common by the Ciuill Law 3. Diuision 1 Diuerse kindes of Particion at the common Law First A particion to haue a third part or a 4. part 2. A particion by way of release 3. Particion by the graunt of a thing de nouo 4. Particion by way of reseruation 5. Particion by taking the third part or the fourth part of the profites 6. A difference in the Ciuill Law where a thing that hath partes cohaerentes is diuided and where a thing that hath partes distantes The diuisions and principall contents of the seauenth Dialogue of Conditions 1. Diuision 1. SI doth not alwaie signifie a condition in the Ciuill Law 2. Sometime it signifieth an vncertaine cause 3. Sometime it signifieth a certaine cause 4. Sometime an vncertaine euent 5. Sometime a condition 6. Si doth signifieth an vncertaine cause at the common Law 7. Si signifieth a certain cause at the common Law 8. Likewise an vncertaine euent by the common Law 9. Likewise a condition 2. Diuision 1 The word Nisi or vnlesse doth sometimes signifie a condition at the Ciuill Law 2. How a modification or limitation of a graunt is made 3. A difference betwixt a limitation and a condition at the common Law 4. The common Law is more ample and large-handed then the Ciuill Law in matters of limitation 3. Diuision 1 Rursus or the word againe signifieth once againe by the Ciuill Law 2. How farre forth a word of restraint is to be extended by the common Law 4. Diuision 1 An agreement by word may defeat a matter in writing by the ciuill Law 2. The common Law is quite contrarie to the aforesaid assertion of the uill Law 5. Diuision 1 Three sortes of impossibilities at the Ciuill Law 2. What impossibilitas iuris is at the Ciuill Law 3. What impossibilitas facti is at the Ciuill Law 4. Impossibilitas naturae by the Ciuill Law 5. Which be conditions against Law by the censure of the Canon Law 6. What conditions impossible in fact are at the common Law 6. Diuision 1 Conditions by the ciuill law are taken according to equitie 2. The common lawe taketh conditions many times strictly 7. Diuision 7 There may bee a substitution conditionall of one heire after another or one executor after an other at the ciuill law 2. The heire at the ciuill law must succedere in vniuersum ius defuncti 3. By will according to the common law an entre may be limited to a straunger 4. The aduantage of entry limited to a stranger is in the late reports doubted of 5. That the entry for the condition broken defeateth the whole estate Errata Faultes Page Corrections  nations fol. 2. a. matrons There want these words fol. 4. a. There bee two sorts of tithes ecclesiasticall and feudall stande fol. 6. b. sue There want these wordes fol. 10. a. or Darius linea 22. Tertorike 17. b. Teutonike  harde 38. a. pore fate 59. b. foote puerpercie 60. a. puerperie lande 69. b. Lord. FINIS THE PANDECTES OF the law of Nations CONTAYNING seuerall discourses of the questions points and matters of Law wherein the Nations of the world doe consent and accord Giuing great light to the vnderstanding and opening of the principall obiects questions rules and cases of the Ciuill Law and Common law of this Realme of England Compiled by WILLIAM FVLBECKE Opinionum commenta delet dies Nationum iudicia confirmat LONDON Imprinted by Thomas Wight 1602. To the curteous Reader CVrteous Reader when Sulpitius returning out of Asâ—a sailed from Aegina to Megara he began to cast his eye and bend his contemplation to the regions round about him behind him was Aegina before him Megara on the right hand Piraeus on the left hand Corinth which had bene in ancient time verie flourishing Cities but were now ruinated prostrated and buried in dust that wise Romane whose eye did alwaies ayme at some conuenient marke and whose mind made perfect vse of her selected obiect when he saw these carkasses of townes considered his owne estate which was far more brittle I likewise wandring in my thoughts through the paradise of learning amongst many delightfull apparitions espied foure excellent lawes the first was the canon-law to which for the grauity I bowed the second the Ciuil which for the wisedom I admired the third the Common law to which I did my homage the fourth the law of Nations which I submissiuely reuerenced yet the hew and state of her seemed to bee much chaunged and the iniquitie of crabbed times had set the print of her metamorphosis vppon her Her other three sisters did condole with her
sort day but absolutely fully it is not because it is destitute bereft of the clere light of the sunne knowledge which relyeth vpon the sound foundation of things knowne is answerable to the day which is full of cleare and perfite light Now as opinion is more like to ignorance then to knowledge so euen-tide is more like to night whereupon ensueth that twilight must needs bee more like vnto night but now suppose that a paiment of money is assumed to be made within the compasse of such a day whether is it to be intended of the Romaine day or some other ciuill day or the natural day which is wholly in vse amongst the Venetians for in Venice the clocke is told foure and twenty times for the day and it is meete that this question should be decyded by the custome of each countrie Now come we to speake of howers which to the Romaines were not in vse during the space of three hundred yeares therefore in their lawes of the twelue tables times are otherwise set downe namely Sunne-rise Noone and Sunsett the first second third and fourth watch plenum forum ful market boum solutio the time of the loosing of the oxen from the plough accensa lumina candle light and such like names But to know the proper vse of these howers that are fitte to bee obserued which Paulus the Ciuilian noteth Cuiusque diei maior pars est horarum septem primarum diei non supremarum he meaneth not that there should be fourteene howers of the day because it is manifest that there are but twelue but his meaning is that the greatest parte of the day is spent in the first seuen howers if you accompt from the first hower to the seuenth inclusiuè as namelye from sixe a clocke in the morning to twelue a clocke for then there will remayne to the other parte of the day but fiue howers And the former parte of the day is not onely the better for the number of howers but because men in these howers are more apt for the dispatch of their busines Wherefore Nonius h Noni lib 9. de compendiosa doctrin vpon these wordes of Virgill Nunc adeo melior quoniam pars acta diei est commenteth thus Our youth is the best part of our age and so Maro wisely calleth the first part of the day the better part as being the youth of the day for if a man should number seauen howers from a eleuen of the cloke to fiue in the afternoone yet these howers will not be so conuenient for perfitting of busines as the seauen abouesaid and therfore he that demaundeth six pence for trauayling to a place on foote from eleuen to fiue to which an other hath gon for a groat from six to twelue is not altogether vniust because in the afternoone men be more vnapt and more vnable to trauaile The last and least part of time if it be any part of time is a moment which may better be imagined then described for it is as swift as a man can imagin and what is more swift then imagination It hath receyued a definition somewhat obscure of Plato Momentum est quod nullo prorsus in tempore est i Pla. in Parmen It is taken by some to be punctum temporis for as a mathematicall point is that cuius nulla est pars so a moment is a point of time cuius nulla est pars yet Pliny seemeth to distinguish more rhetorically then truely punctum temporis from a moment when he saith Quod momentum aut immo quod temporis punctum aut beneficio sterile aut vacuum laude k Plini in Panegyr the existence of a moment cannot possibly be discerned and therfore is not so much as the twinckling of an eye The vse of a moment is more fit for the operation of Law then for the act of a man for the Law doth operate without compasse of time in an instant but man neuer for euery act of man must haue space longer or shorter according to the qualitie of the work But the nature of such instants or moments which the Law doth imagin is such so sodaine vt omnem respuant moram as in the Ciuill Law is well noted l l. 23. §. vlt. D. de adult And the reason is because in the operation of Law that which it doth imagin to be done is dicto citius presently and without delay done m l. in suis D. de lib. et post and therefore it is commonly said it is done ipso iure or it is said ipso iure or ipso facto But this course can not be obserued in the actions of men who can not doe any thing without space of time because their act is alwayes continuate and therefore must needes be done continuo tempore And whereas the act of man is mixt with the act of Law though in regard of the same thing the act of the Law be momentary yet the act of man must needes beare some delay Those thinges by the ciuill Law which are taken from enemies doe incontinent become his who doth seise and take them n l. 5. §. vlt. de acquir re â—o The Law doth giue them vnto him presently but yet there must be a time to take them that the Law may giue them And so if when a Lease is made to A. of land for the terme of the life of B and A. dieth C. entreth into the land and inioyeth it as an occupant the Law because it wil not haue the freehold in suspence doth imagin that it was presently and immediatly in C. after the death of A and that he entred presently but if we respect this entrie as the act of man we must needes imagin that he had some time to enter into the land and by his entrie which is an act consisting of motion to gaine the freehold It remaineth now according to our purpose that after this discourse of the partes of time some thing should be spoken of the differences of time which I will handle verie briefely for the matters precedent haue giuen some light thereunto and they are not of themselues verie obscure And first to speak of the time which we cal a continuall time that in the ciuill Law is sometime taken for as much as during a mans life o l. 1. §. pe de off pre vrb l. 2. C. de his qui latr and therfore he that hath purchased land for his life is tearmed Perpetuarius p Alci lib. 1. parer g. c. 37. and in the common Law these wordes a touts iours make but an estate for life q Littlet lib. 1. cap. 1. fo 1. yet in proper sense it extendeth vnto the last mark of time A long or short time is distinguished either by the measure of the parts of time abouesaid or by the measure of the Law which is the discretion of the Iudge The differeÌ„ce which is made of auncient
common weale and by the continuall practise of nations most ciuill which onely course I obserue in this discourse the right of Primogeniture or elder-brothership is fenced supported and defended against this last decree of the Millanasses and that first of the Persians For Herod the king of the Iewes did preferre in the succession of his kingdome Antipater who was borne before he was king before Alexander and Aristobulus begotten after he was king q Ioseph lib. antiquit 16. And many yeares after in Hungarie Bela their king being dead Geysa being borne when he was a priuate man was inuested with the Crowne r Fl. Blondus Decad. 2. lib. 6. Micha Ritius lib. de regi Hungar. 2. and before that Otto the first could be setled in the Empire of Rome his brother Henry made a quarrell to it because he was borne when his father was Emperor But the matter discending to armes and battaile victorie did adiudge the Empire to Otto ſ Sigebert in Chron. Wherefore two or more contrarie examples are not in this case to be regarded As that of Genzericus the king of the Vandales who made his testament in this forme or rather this Law in forme of his testament Si Rex moritur qui ei genere proximus et natu maximus erit regni haeres esto for Procopius noteth his great age when he made this Law and it may be that others will note him for his dotage if he did amisse for his discretion if he did it to preuent a daunger t Procop. lib. de bel Vandal 3. So when Charles the king of Sicely died he had two sonnes Charles Martell and Robert Martellus died liuing his father but leauing a sonne whereupon the Lawyers had plentiful matter of disputation offered vnto them whether the sonnes sonne should be preferred before the vncle in the possession of his graundfather but by the Popes meanes Robert obteyned the kingdome But the Emperour Fredericke reuersed this sentence and the Pope cancelled his rescriptr. But D. Bartolus giueth this reason of the Popes doinges because the kingdome of Sicilia was one of the fees of the Church of Rome so that it did not belong to Robert by any lawfull succession but by the graunt and inuestiture of the Lord of the fee x Barto in Arth. post fratr C. de legit haered Neither is it materiall that the Nomades Barbarians did preferre the yonger bretherne before the children of the elder bretherne as Strabo reporteth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Strabo lib. 16. yet I will graunt that in the succession of regall dignities the worthines of bloud is lesse to bee respected then in the succession of common inheritances because in that case the commoditie of the subiectes and the abilitie of them that are to succeede is politikelie to bee respected And therefore diuers Ciuilians doe with vnited consent pronounce that the good estate of the kingdome and subiectes the profite peace and safetie of the same is more to be heeded quà m sanguinis series the course of bloud b Luc. de Pen. in 5. nepot C. qui num lib. 10. et in l. 1. C. de lyro lib. 12. Bald. in c. 1. de feud March And Roboam preferred Abias his yonger sonne before his elder bretherne in the succession of his kingdome c 2 paralip 11 And Salomon the yonger brother d 2. Reg. 1. was preferred before his elder bretherne But this must be done warilie and by the warrant of a good conscience otherwise it can neyther please God nor profite man least a king doe by his choise preiudice his subiectes as Micipsa did by the adoption of Iugurtha e Salust in bel Iugurth But the reasons are manie and forceable wherefore the worthines of bloude shall in the course and conueiance of inheritances bee principally respected First Ius quod personae inest per modum substantiae est ab ea inseparabile et in nullo alio subiecto potest verificari f Arg. l. for did C. de excus mun lib. 10. But ius primogeniturae is in the eldest sonne or in his issue per modum substantiae therefore it is inseparable from him and cannot extende to any other Secondly the aucthoritie of Vlpian prooueth it affirming that hee is a patritian who is borne before his father was made a Senator as well as he who is borne after that hee is possessed of the Senatorie calling g l. Senator S. D. de Senat. Thirdly it is apparant by manie places in the feudall Law that sonnes and nephewes may succeede in the fees and inheritances of Dukes Marquesses and Earles and so it is of the inferiour and vulgar sort of men And it is well said of D. Hotoman Ius sanguinis quod in legitimis successionibus spectatur ipso natiuitatis tempore quaesitum est Fourthly it should bee against all Lawes proximitatis graduum that they which are in a more remote degree the worthines of consanguinitie should be preferred before them that are in a neerer degree Fifthly because Primogenitura is an inseparable incident to the eldest sonne and whatsoeuer is claymed by this must bee claymed by the person of the eldest sonne and none can succeede in the place of the first begotten as first begotten because there cannot be two first begotten But no Law more respecteth the worthines of bloud then the common Law which preferreth the brother before the sister in case of discent the elder brother before the yonger whereas the middle brother purchaseth land the sister before the vncle and the vncle before the cosin h Littlet tit Fee simple and all these particular prerogatiues of kinred Mast. Littleton windeth vp as it were in one clew when he saith that when a man purchaseth land in fee simple and dieth without issue euery one that is his next cosin collaterall for default of issue may inherite and therefore it was well and wisely agreed by the Iustices decimo quinto Elizab. in Cleeres case that in a collaterall discent from any which purchaseth landes and tenements and dyeth without issue the heires of the part of the father and which are of the bloud of the auncestors males in the lineall ascension by the father in the same degree as the brother of the graundfather of the fathers side and his issues be they male or female shall be preferred before the brother of the graundmother of the father side and his issues And so the brother of the great graundfather of the fathers side namely the brother of the father of the father of the father of the purchasour and his issues bee they male or female shall bee preferred before the mother of the great grandmother namely the brother of the mother of the father of the father of the purchasor and his issues For the female sexe is more base then the male in lawe And it was likewise agreede that if the purchasor dyed without issue and hath not any heire of the
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
whom agreeth Vlpian saying as boldlie and libidinously Betwixt a concubine and a wife there is no difference except the wife be a more worthy parsonage c Vlpian in l. item legato 49. §. 1. D. de leg 3. Yea euen in the bodie of their Law it is set downe for a rule that inter concubinatum et matrimonium nihil nisi affectio interest d L. 3. §. 1. D. de donat inter vir vxor ingenuaque mulier domi ante testationem pro vxore habenda est d. These are the oracles of the parots and parasites of the Romane Emperours who sought to sholder out the truth of God his word and to varnish their owne sinnes by the dreames of such dissolute Lawyers who thought perhaps that they might as wel defende as commit fornication and concubinage Vpon whose reuerend opinions the Pope sprinckleth the holie-water of his dispensations yea and dispenseth for incestuous mariage not onely with Dukes and noble men but as Angelus Perusinus sheweth euen with Barbors Tailors and Butchers e Angel Per. in l. matrem § filiam ad Treb. But it is fitlie said by some that he doth rather dissipare quà m dispensare f Felin post Doct. in C. quae ecclesiarū de constit And others haue been bolde to saie that he which obteineth such dispensation perhaps will hardlie escape in foro poli in the court of heauen howsoeuer hee be safe in foro Romae in the court of Rome g Arg. C. fin de praescript et Alci in l. 5. pedum C. fini regund Howsoeuer the Canonistes whereof the most part doe beare the cognisance of the whoore of Babylon do auouch that by such dispensation veritas naturae per Papam non tollitur which he cannot doe though he would sed inumbratur and therefore saie they the dispensation is lawfull h Arg. c. sedes de rescript l. 3. §. permit an argument drawne from the owles nest and from no place of Logike But the Emperour Theodosius speaketh onelie of a lawfull and honest consent in more modest tearmes saying Matrimonium absquè vlla pompa et celebritate nuptiarum atquè adeo absque vllis dotatibus instrumentis firmum est liberique ex eo suscepti iusti sunt Heere the Emperour excludeth pompe from mariage but not consent Neither doth he admit concubinage to be mariage i l. si donationum 22. c. de nup. It is now shewed that consent is required by the imperiall Law to the constitution or making of mariage It shall not be amisse to inquire whether it were necessarie or no by the auncient Law of the Romanes which was in the time of their florishing estate the Law almost of all the Nations of the world as Ouids speech importeth Gentibus est alijs tellus data limite certo Romanae spatium est vrbis orbis idem m Ouid. 2. Fastor And Claudian auoucheth the same though he liued when the Romane common weale was much empaired Armorum legumque parens quae fundit in omnes Imperium primiquè dedit cunabulacuris n Claud. 3. stil By the auncient Law of the Romanes if a woman had been kept in a mans house by the space of a yeare he might claime her as his wife o Hotomanus in comment ad duodecim tabul And by that Law a man might lend his wife to his friend for the procreating of children p Strabo lib. 11. Plut. in Cat. Tertul. in apologet as Cato lent his wife for that purpose to Hortensius which though Plutarch accompt fabulous yet Appian reporteth it as true q Appian lib. 2. de bel ciui and Quintilian affirmeth the same r Quintil. lib. 2. c. 5. Neither is it vnlikely that it was a custome practized of the Romanes for this lending of wiues was permitted by the Lawes of Lycurgus and as Plutarch reporteth it was a Law established by Numa ſ Plut. in comparat Lyc. et Num. A brutish Law doubtles and one of the maine errors of these great common weale men who as the Apostle saith became vaine in their thoughtes and their foolish heart was full of darkenesse and as they regarded not to acknowledge God so God deliuered them vp vnto a reprobate mind to doe those things which are not conuenient t D. Paul ad Roman 1. v. 2◠28. Now that we haue shewed that consent is necessarie for mariage it remaineth to bee declared how farre forth it hath beene accompted necessarie When the Romane Empire was in her infancy and first rising it seemeth that a verie slight consent would haue serued as may appeare by these wordes of Suetonius writing the life of Caligula Mar. L. Cassio Longino consulari collocatam abduxit et in modum iustae vxoris propalam habuit But of the Emperour Constantine furtiue and priuy mariages are vtterly condemned and abiudicated u l. vxor 7. Cod. de repub because it is against Christianitie to which the Lord therefore highly be praised all the nations of the earth begin to open their eyes and giue their free consent Such marriages as haue the publike testimony of the Church are greatly commended of Tertullian Vnde sufficiam ad enarrandam foelicitatem eius matrimonij quod ecclesia conciliat confirmat oblatio obsignatum Angeli renuntiant pater rato habet a Tertullian lib. ad vxor 2. And the Emperour Leo hath determined that the mariages of Christians shold be confirmed by the testimony of holy and ecclesiastical prayer and that these marriages which are otherwise contracted should not be held for good and Harmenopolus testifieth that by ecclesiasticall Canons it is prouided That there should be no priuie mariages and that no mariages should be celebrated out of the Church b Harmenop lib. 4. c. 4. And by the common law as M. Fitzherbert saith a woman married in a chamber shall not haue dower of her husbands c Fizh N. B. 150. N. lands but he modestly saith that it seemeth reasonable that shee should haue dower M. Parkins peremptorily affirmeth that the lawe in his time was directly to the contrarie that the law was so in his time I must take vpon M. Parkins credit for I haue not read to my remembraunce any yeare booke which was written in his time or since wherein that is recorded for law as to that which M. Fitzherbert saith that it seemeth reasonable how could it seeme reasonable vnto him vnlesse the mariage it selfe had seemed reasonable if he thought such a mariage to be good lawfull therein sauing reformation hee failed for beside the authorities which immediatly before I haue cited to proue that mariage must be celebrated in a publike place and in publike maner it appeareth that in the Iewish common weale that course was followed in the time of our sauiour by part of a similitude which he vseth Let your loines be girt about your lights burning
namely when one of the league is to helpe the other when he suffereth iniurie but not when hee offereth iniurie for it is a good rule in the ciuil law rei turpis societas nō intelligitur c l. 5. 7. vbi Bal. pro sor Therfore he that couenanteth to defend a castell or farelet is not bound if warre bee raised through his fault to whome hee made the couenant d Alexand. 3. cons 114. and Castrensis auoucheth that this ought to be vnderstood of a necessarie not of a voluntarie warre But this is cleare and certaine in this case that he that is bound so to defend is bound to defend by weapons e Deci. li. 59. de reg iur 3. cons 117. and he that is bound in such case personally to helpe an other is much more bound to helpe him with money f Alci 3. consi 2. yet that must be thought to be onely then required at his handes when the other can not prouide for his owne necessities Now it is to be considered whether eyther of the parties may depart from the league And I thinke vpon iust occasion such a departure may bee made Faedus non violatur si ab eo disceditur ob rationem iustam g l. 14. 15 16. pro soc But this must not bee for a light cause for light causes are alwaies arising and all contracts would bee most weake if for a small and worthlesse cause it should be broken or not regarded But a prince may safely depart frō the league if some part of the league bee broken by the other partie h Cagnol l. 41. Cod. de trans and leagues as all other contractes bee indiuidua i Deci. Cons 265. cep 455. 461. for there be alwaies exceptions vnderstoode in euery league as these for example Nisi causa superueniat nisi culpa accesserit eius cui promissio ista fit pactio foederis rebus sic stantibus Thus we haue spoken of warre and peace generally now it remaineth to discourse of the particular circumstances of these two principall points and moments of a common weale 3 Before warre be maintained by one prince against an other it behooueth him that commenceth war to denounce the warre solemnly by ambassadors and by that meane to certifie him of his purpose For this course is prescribed by the lawe of God k Deut. 20. Ioseph 5. antiquitat Aug. iudic q. 49. And it was practised by the Grecians Barbarians and most of all by the Romaines l Aerod lib. 5. Xenop Ages Diony 2. Liui. 1. Whereupon Cicero saith Nullum bellum iustum haberi videtur nisi nuntiatum nisi indictum nisi repetitis rebus m Cice. 1. de offi n. c. 1. 23. q. 2. Which saying is cited and auowched in the Canon law n c. 1. 23. q. 2. And this is likewise affirmed in the ciuill law o l. 24. de capt And therefore it is held by the interpreters of the ciuill law Proditoriè agit qui non indictum mouet bellum p Ias Bald. l. 5. de iust l. 4. c. de obs p. And Varro reporteth that iust warres did cease to bee waged in his time because they ceased altogether to bee lawfully denounced q Var. lib. 4. de ling. Lati. For the auncient Romanes did not affoarde a triumph to anye vnlesse the warre were solemnely proclaymed r Sigon de anti iur pro vin And Alciat accompteth this the law of nations ſ Alcia 14. de si cor And because warre is a publike contention if in priuate causes summons and citations be vsed surely in vndertaking warre denuntiation ought to bee vsed t Bald. l. 12. de serui vrb praed for which cause the Romanes were in this point so precise that they did often denounce war when they needed not euen when the law of nations was apparantly violated by other nations so that they might iustly haue enforced them as the rule of the common law is to haue taken notice of their owne wrong In this sort they proclaymed warre against the Senones who had slayne their ambassadors against the Illyrians and Tarentines who had contumeliously abused them u Liui. 12. 20. And this is noted of them in the case of the Saguntines Non statim ad arma procurrunt dum prius more legitimo queri malunt x Flor. lib. 2. So Liuie reporteth of the Frenchmen Erant qui extemplo Romam eundum censerent sed vicere seniores vt legati prius mitterentur questum iniurias postulatumque vt pro iure gentium violato Fauij dederentur a Liui. lib. 5. Wherefore Xerxes doeth greatly inuey against the Graecians because they did not first aslay to end their cōtrouersies without weapons b Herodot l. 7 and for the same cause Ioab is iustly reproued in the scripture of the wise woman c 2. Sam. 20. neither was hee vnwise in this pointe that said Omnia prius experiri verbis quam armis sapientem decet Qui scis an quae iubeam sine vi faciat d Ter. in Eunuch Yea euen Tullus a most warlike man is of this opinion Quae verbis componi non possunt armis decernantur e Dionis li. 3. So Theseus a notable Captaine saith in Euripides Si oratione non persuadeo bellum laudo Vade dic Creonti Theseus amanter repelit a te cadauera hic primus sermo si nihil efficis secundus vt f Eurip. in Supp me armatum expectet And so Theodorius said truely to Alaricus Tunc ad arma cum locum apud aduersarium iustitia non potest inuenire And againe Quid opus homini lingua si causam manus agat armata g Cassiod 5. Var. 1. 7. Thus it is euident that by the lawe of nations warre should be denounced 4 Somewhat must be spoken of truce which is thus defined in the ciuill law Induciae sunt cum in breue et in presens tempus conuenit ne inuicem se lacessant h lib. 19. de capt And Gellius maketh mention of a truce which was made for an houre onely i Gel. li. 1. c. 25. Vergill calleth truce pacem sequestrā because it sequestreth as it were and suspendeth war for a time Varro tearmeth it Ferias belli warres holiday k Virgil. 11. Aenei In that it is called sequestra pax it is to bee noted that it is not simplie a peace In the Cannon lawe it is called tregna it is of this nature that by it warre is not ended but deferred onely and so it is middle betwixt warre and warre euen as sequestration is middle inter duos altercantes betwixt two parties that are at variance But peace properly so tearmed is of another nature because it is perpetuall and vnder the name of peace truce is not comprehended no though truce be concluded for a long time as the Veientines made a truce
during the space of an hundred yeares with the Romanes afterward for fortie yeares and after for twentie as the Tuscanes had a truce first for thirtie yeares after for fortie and then peace was concluded Neyther is it so much as a league as may appeare by Liuie De foedere negatum induciae in biennium datae Samnitibus And so hee reporteth of the Tuscanes Pacem faedusquè petierunt inducias in tringinta annos impetrarunt l Liui. 1. 2. 4. 9. 10. So Plutarch reporteth of Pelopidas that hee woulde not conclude peace with his aduersary but that he granted him truce m Plut. in Pelop. Ancharanus doth thus distinguish them there is a time of warre a time of truce a time of peace n Anch. cons 88. And an other Ciuilian auoucheth truce to be more like to war then to peace o Corn. 3. cons 167. And an other saith fitly Induciae non interrumpunt hostilitateÌ„ sed actus hostiles p Aug. l. si vn vis de pact But this must be obserued in obseruing truce that in time of truce aduantage may not be taken either in regard of the place of the fight or of other circumstances Therefore Phillip may seeme to haue done vniustly and against the lawe of armes who hauing obteyned q Liui. lib. 31. truce for the burying of his dead did in this time of truce conuey his armie into safer places And the D. of Mompensier was likewise guiltie of this fault who hauing couenanted to yeeld vp a forcelet if helpe came not within one moneth in the time of truce departed from the forcelet hauing left it sufficiently fenced r Guicciar li. 2 And it is thought to bee against the lawe of truce to receiue soldiers at that time into a towne besieged Å¿ Com. Pij 2. lib. 5. For it is an vsuall clause in the concluding of truce Nil nouari securitate pendente t Vital tract clau So Scanderbege doth sharpely reprehend the Turkes who hauing promised to yeelde themselues if ayde did not come within a certaine number of daies do in the meane season repaire the breaches of their wals and munition u Scanderb 8 Neither can Tissafernes bee excused from the violation of truce who in that time did make himselfe more strong for warre But Agesilaus is noted to haue done the contrarie c Corn. Nep. Agesil Neither can the acte of Belisarius bee iustified who in the time of truce surprised certaine townes out of which the Gothes departed howbeit hee answered to this obiection that he might well enter into such townes as the Gothes had left and waiued but the Gothes did not waue them for they departed out of these townes through penurie want of victuailes cc Procop. l. 2. de bel Goth. Now by the ciuill law hee that departeth out of a place or casteth any thing away being inforced by necessitie cannot bee said to leaue that thing behind him pro derelicto d l. 1. 7. pro derel l. 8. de Ie. Rho. Yet the common law may seeme to sway with Belisarius which extendeth derelictum both to that which is voluntarily forsaken e 16. Eliz. 138 Dy. And to that which is waiued and left by necessitie f 29. E. 3. 29. 12. E. 4. 5. yet it cleareth not Belisarius his acte for during the time of truce no warlike action should haue beene enterprised so that if the Gothes had left these townes voluntarily and not by necessitie this had not exempted him from doing apparant wrong 5 Because safeconduct is a thing much vsed amongst nations in politique respect therefore is parcell of the law of nations I may not omit or ouerpasse it Safeconduct because it is in Latine fides publica doth argue that it may not be granted regularly but of a publike person who is an absolute Monarch or of some publike estate or common weale and in England it hath beene vsed to bee graunted by parliament as appeareth by the statute of Magna charta Omnes mercatores nisi ante prohibiti fuerunt habeant saluum conductum exire venire in Angliam ad emendum vendendum praeterquam in tempore guerrae si sint de terra contra nos guerrina si mercatores nostri in patria illa sint salui salui sint illi in terra nostra I mentioned before this worde regularly because by commission and speciall warrant hee that hath potestatem explicandi ardua or hee that hath causae cognitionem maye graunt and affoarde safeconduct for the better performance of his taske h Decia 3. â—onsi 96. But safeconduct is to be vnderstood largely by equitie and without cauils and therefore if safeconduct be granted to one to come safely to a place it is intended that he ought safely to depart and hee that hath licence to passe safely may send safely i Bar. li. 1. C. de nan Alex. 2. cons 46. 5. Alci 4. 14. and he to whom safeconductt is graunted for himselfe and his company may bring with him in his company odious persons as Iewes and infidels k Alc. l. cons 11. 25. Dec. cons 51. but fugitiues reuolters rebels and traitors he may not bring with him for no law of nations nor benefit of common weale belongeth to l 8. 38. de pae such reuolters or runnagates are by the ciuill law burnt aliue or els hanged vpon a gibbet Marcellus and Cato the Censorian did whip them and put them to death m Plut. in Mar. Cat. Others in setting forth of their games and showes did cast them to beasts others did lay them vnder Elephants to be trode torne in peeces others did with other extremitie worke their death n Liui. 24. 26 Val. Maxi. 2. c. 7. Front 4. c. 1. Appi. in bel Hispan neither do I think that safeconduct may extend to men of another nation then he is of to whom safeconduct is granted For example the Fleminge the Turke the English are enemies to the Spaniard if safeconduct be granted to the Fleming he may not take Englishmen or Turkes with him in his company But safeconduct being granted to the husband must needs extend to the wife and to such thinges as be necessarie to him ad bene esse o Bal. 5. cons 413. And to such familie-seruauntes or retinue as to be agreeable and proportionable to his dignitie and estate p Aug. l. 8. de in of test for according to the rule of the ciuill Law in personalissimis actibus inseparabiles personae includuntur q Bal. 1. 3. de const pri 6 I will now speake of Captiues and of the rightes that belong to them for miserie needeth some solace by the Law of Nations A Captiue as the name importeth is he who is taken in warre and though he be borne of a captiue woman yet is he free vntill such time as he be seised into the
handes or to the vse of the Lord and though he be so seised yet it must needes be that he was borne free for the rule is true Quae iure gentium acquiruntur ea non acquiruntur nisi vera interuenerit apprehensio r l. 3. de acqui po vbi Ias otherwise he should possesse the treasure who possesseth the ground in which it is yet he doth not possesse it howbeit he knoweth of it and therefore that rule is not in the Law of Nations true Si quis habet id quod continet habet id quod continetur For in the Law of nations this generall maxime holdeth place Vera et realia non ficta et verbalia amat ius gentium yet such a precise seisure is not heere ment that euery part of him that is taken should be touched euen to the verie shirt of a man as long as he that seiseth hath a will and power to seise for he that toucheth a mans eare is in the ciuill Law held to touch the whole man Å¿ Alc. d. 41. d. l. 3. l. 21. de fur Some hold opinion that he is not a Captiue vntill he be brought into the tents of his enemie t l. 5. de capt Alex l. 1. de acquir po tt 4. reg 6. howsoeuer it be it is plaine that Captiues may not be put to death as the prophet said to the king of Israel An quos captiuos abduceres gladio tuo et arcu tuo eos percuteres And though bloudie Pyrrhus desirous to kill Polyxena did pretend that lex nulla captâ— parcit aut poenam impedit yet Agamemnon aunswered him well quod non vetat lex hoc vetat fieri pudor u Senec. in Tro. To which purpose the other Seneca saith excellentlie Augusta innocentia adlegem bonus esse et latius officiorum patet quà m iuris regula multa exigit pietas humanitas liberalitas iustitia fides quae omnia extra publicas tabulas sunt The Scots therefore are greatlie to be commended who as Buchanan reporteth though great daunger were imminent yet did not slaie their prisoners uu Buchan lib. 9. Neither did the English euer that I reade vnlesse it were once in that notable fight in which they did vtterlie destroy the French dominion who hauing more prisoners then themselues were and finding their captiues to tende to conspiracie and mutinie hauing singled the most noble did kill the baser prisoners x Com. Pi. 2. lib. 6. Polydor. 17. But doubtles the Turkes crueltie was barbarous who did kill fowre thousand prisoners that they might not be a burden or charge vnto him a Ior. lib. 3. And this fault was committed by Henry the second king of Fraunce b Nat. Com. lib. 8. who did cause certaine obstinate prisoners perseuering in fight to be hanged a kind of death vnfit for Captiues who are not so to be punished without great and vrgent cause because it is a point of immanitie and crueltie bitterlie to rage against them which defende their Prince and their Countrie A Captiue one may be and yet not a bondslaue for he can not be a bondslaue vnlesse his Lord will haue him so There was a ceremonie therefore vsed to make him bondslaue which was called Nexus And it seemeth that the Praetor had some authoritie in this matter which I ground onelie vpon the last will and militarie testament of a Romane ingrauen in stone as Sigonius reporteth who would haue his villaines manumitted by the Praetor c Car. Sigo in vit et trinu ph and sithence eiusdem potestatis est ligare soluere I am of opinion therefore that he had some intermedling in the making of them villeines But in the making of them villeines chaines doubtles were vsed and therefore Vespasian when he had taken Iosephus prisoner would needes haue his gyues to be broken not to be loosed that he might seeme neuer to haue been a bondslaue d Ioseph lib. 5. de bel Iud. And whereas the Law saith that such thinges as are taken of enemies capientium fiunt e l. 5. de ac re do it is not meant nolentium therefore though the power of him that taketh make a captiue yet his will must make a bondslaue But surelie the state of captiues if they become bondslaues is verie miserable for they are as it were deiected from their nature and are in accompt of Law tourned into beastes And wheras before they were accompted in Law persons now they are accompted thinges f ad leg Aquit 209. Bald. 2. cons 358. and therefore of the Graecians they are generally called Samata bodies But I do not think this seruitude to be contra naturam For Aquinas his distinction is not to be reprooued that seruitus is á natura though not secundum primam intentionem by which we are all made free yet ex secunda by which God doth punish whom it pleaseth him but such bondslaues must not be vsed like beastes but like men wherefore the speech of some is intollerable Seneca reporteth it who did affirme domino in seruum nihil non licere pictori nihil non pingere g Sen. 1. contr 5. And Plato writeth not well when he saith that bondslauesl l Plat. lib. 6. de leg are to be handled roughlie Aristotle more trulie that they ought to be handled mildlie m Arist 1. polit Cicero more iustilie Meminerimus et aduersus infimos iustitiam esse seruandum Macrobius more modestlie Dominum patremfamilias seruos familiares appellauerunt nostri maiores omnem seruis contumeliam detrahentes n Macrob. 1. saturnal 11. Clemens Alexandrinus more compassionatelie Famulis vtendum tanqum nobis ipsis sunt enim homines tanquam nos o Cle. Alex. â—lt paed Nunquid canes saginabuntur homines pascentur male said Diogenes In Athens there was a Law de iniuria seruili p Athenae lib. 6. Amongest the other Graecians there was a Law that bondslaues might depart from their cruell maisters In some common weales they had licence to purchase landes and goodes as Athenaeus q Pollu 7. Plat. de superst reporteth according to the Romane Law as appeareth by Seneca Dominus praestare debet seruo cibarium vestiarium est enim seruus perpetuus mercenarius r Senec. lib. 3. de benefic 7 Enough of Captiues Now let vs not be vnmindfull of Hostages which are in state not far distant from Captiues Therefore Quinctius did cause the sonne of Phillip and the sonne of Nabis to be led before his triumphall chariot though they were but Hostages Å¿ Oros lib. 4. c. 20. Liui. 34. And the Parthians were wont to saie obsidaetus nihil aliud est quà m seruitus t Ioseph lib. 18. antiqu By the Ciuill Law they can not make a testament no more then others which are in the enemies power u l. 1 1. qu. test fa. po The definition of Hostages is thus
Demetrius the kinges of Asia yea euen all the Rhodians q Liuius which the Rhodians requited with like curtesie which was nothing else but a comburgeosie such as Bodinus r Bodin vbi supr reporteth to haue been made betwixt them of Valoys and certaine towneships of the Heluetians Betwixt the men of Berne and them of Friburge Betwixt them of Geneua them of Berne The nature of which comburgeosie is that there should be mutuall communitie of their cities and mutuall league of friendship betwixt them And if any of these so leagued in societie should forsake their citie and come to the citie of them with whom they were in league they should be ipso facto Citizens without any speciall enfraunchisement enroulment cooptation or any other circumstance before which time they were not subiect to the commaunde and Lawes of that citie but were onelie Ciues honorarij as Hercules and Alexander magnus were of Corinth Such a league of societie as seemeth by the yeare booke to haue been contracted betwixt the Citizens of Lincolne and them of the towne of Derbie that they of Lincolne should be quite from murage pontage custome and tolle within the village of Derbie for all kind of merchandize Å¿ 48. E. 3. 17. This was the difference betwixt veri and honorarij ciues the former were subiect to the Lawes orders and charges of the citie the other were not Plutarch t Plut. in Solon wondreth at Solon in that he made a Law that all straungers should be barred from the liberties of the citie of Athens except it were such as were in exile but indeed he perceiued not Solons meaning being a man of deeper reach then Plutarch as also was Polybius and Thucydides and Dionysius of Halicarnassus amongest the Graecians his countrymen whom notwithstanding in learning wit and eloquence he exceeded for Solon his purpose was in the making of that Law that none should enioy the liberties of the citie but such as should be bound and subiect to the Lawes of the Citie And there was likewise an other difference betwixt veri and honorarij Ciues for they which were veri ciues did loose the liberties of the citie of Rome whensoeuer they did purchase the freedome of any other citie Which may appeare by this that though Pomponius Atticus being borne in the citie of Rome was a citizen of Rome and more then that beeing a Senators sonne was eques Romanus who was therefore called Atticus because hee had the Athenians in such reuerence and estimation a man of great byrth for three Emperours doe referre their originall to him u Senec. in epist ad Lucil. yet this man could not bee made a citizen of Athens least as Cornelius Nepos reporteth the plain truth u Senec. in epist ad Lucil. he should loose his freedom of the citie of Rome But as to them which were honorarij ciues if they were enfraunchised of a w Cornel. Nep. in vit Attic. hundred cities yet they could not loose their freedome of any In England not Cities onelie admit others to their liberties but verie Societies of Students as namelie the houses of Court and to mine owne knowledge the worthie societie of Graies Inne to which be admitted such a number of excellent noble men great diuines surpassing gentlemen whereof some haue sued and been desirous to be admitted other some haue rather been called then ordinarilie consorted for their preeminence and worth according to the rule of Salomon As is the fining pot for siluer and the furnace for gold so is euery man according to his dignitie I pray God this fining pot may still continue her siluer of Learning and Law I beseech him likewise that this furnace of gold may still seuer the gold from the drosse that is religion and loialtie from paganisme and papisme which hitherto the Lord be praised it hath done But to retourne to my purpose of handling the nature and properties of Cities and Corporations Though in the generaltie of admittance all common weales haue accorded yet in the speciall maner of admittance they haue dissented and varied For in Athens they could not bestow their fraunchise vpon anie without the suffrage and voice of a thousand citizens at the least a Demosth contr Eubâ—lid But in such places and regions which by reason of the barrennes of the soyle or by reason of the distemperature of the ayre are not verie well habitable not onelie the originarie inhabitants but euen straungers and aliens are forbidden by the Rulers of the places to depart out of them As namelie in Moscouia b Sigis in hist Moscho Tartaria and Aethiopia c Francisc Aluares in hist Aethiop But amongest the Venetians and Rhagusians none can be admitted to their cities vnlesse it be for a great summe of money or some principall desert But now sithence we haue spoken sufficientlie of Corporations in generall let vs examine the first foundation and beginning of guildes and fraternities which as Corporations do support the good estate of a Realme so they do preserue the good estate of Corporations These Fraternities are deriued of the greeke word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is to be interpreted a well or pit for in drinking at one pit or well societie was at the first contracted thence is deriued 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 fraternitie So likewise Pagi towneships are deriued of the Doricke word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifieth a fountaine and in the Atticall dialect is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 By the meeting together at the first at one water or fountaine grew loue betwixt man and wife then betwixt brethren and sisters then betwixt vncles and nephewes then grew affinitie All which would haue been colde if there had not beene corporations colleges guildes fraternities and societies crected and established By the common Law no Corporations can be made but by the king yet his highnes may depute this authoritie to an other for so it commeth originally from the king howsoeuer Mast. Keble his opinion is that a Corporation must be made by the kinges expresse and immediate wordes d 2. H. 7. 13. But 22. Edwardi 4. and 20. Hen. 7. the opinion of Read is to the contrarie e 22. E. 4. Graunts 30. 20. H. 7. 7. and both Mast. Fitzherbert and Mast. Brooke g Br. Patents 44. abridging the case are in this contrarie to Mast. Keble f Fitzherb Graunts 36. And so is the opinion of Choke and Brian that if before the dissolution of Abbeys the king had licenced one to make a Chaunterie for a chaunterie Priest and to giue vnto him and his successors certaine land this had been a good Corporation h 21. E. 4. 56. But to all vnlawfull Gorporations all giftes grauntes fines and feoffements are made voide by the Satute of 23. Hen. 8. cap. 10. The first Lawmakers and founders of common weales at the first did accompt no foundation more stable to
support a common weale then societies and fraternities For Numa Pompilius the king of the Romanes did ordeine certaine guildes of workmen and merchants and did binde them by solemne sacrifices and feasts which might be at certaine set daies celebrated to preserue loue and friendship amongest the people that they might with more ioy and comfort proceede in their priuate and publike affaires i Plut. in Num. Dionys Halicar lib. 2. And this he seemeth to haue done by Solons example who made fraternities of all sorts of men and permitted them to make Lawes touching their fraternities so they were not contrarie to the Law publikely receiued k Plut. in Solon But Lycurgus did not prescribe certaine feastes to be obserued but continuall meetings and comessations that friendship might not at any time be intermitted In other cities of Greece societies called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and throughout all Italie sodalitia were obserued To this end and purpose the Cretensians of all ages orders and sexe did banquet together in publike place l Arist in polit And in the famous Citie of London there is annuall and solemne obseruation of their feastes in euery guild which mightilie preserueth the wealth tranquilitie and florishing estate of that citie Neither is this custome dissonant from God his owne ordinance in the Iewish common weale who appointed certaine feastes and sacrifices to be obserued of the Iewes that religion towarde God and friendship amongest men might bee maintained m Numer 1. Leuit. 23. But as to the making of priuate Lawes by such guildes and fraternities Solons Law abouesaid hath been obserued almost of all common weales But the Statute of 15. Henr. 6. giueth somewhat a larger scope to guildes and fraternities in these wordes Guildes and fiaternities and companies incorporate shall not make nor vse any ordinance which may be to the diminution of the Kinges fraunchise or of other fraunchises or against the common profit of the people vnlesse it be first discussed by the Iustices of peace or the chiefe gouernors of the village and before them entred of recorde c. But when I speake of colledges companies meetings feastinges and assemblies I doe with the maine force of my hart exclude vnlawfull societies conuenticles and secreat meetinges of male-contents phantasticall and priuate humored persons But to colledges fraternities and companies erected and created by Law I see no reason but that landes and yearelie maintenance may be giuen and allowed vnto them yet not without the Princes permission who for some speciall causes fore-seene may stoppe and hinder such donations And therefore wiselie by diuers Statutes in this Realme is remedie prouided against this and a writ of Ad quod damnum deuised n Statut. de Religios 18. E. 3. pro clero cap. 3. 15. R. 2. cap. 5. Antonius the Emperour did first of all permit legacies and donations to bee made to colledges and companies excepting the colleges of the Iewes whom notwithstanding hee suffered to meete together and to haue their synagoges for religious vse o L. 1. de Iud. C. Alexander magnus did bestowe vppon his citie Alexandria built at the seauen-folde mouth of Nilus manie great priuiledges fraunchises and immunities p Ioseph lib. 3. bel Iud. So Frauncis the first being the founder of that citie which standeth at the mouth of Sequana gaue great immunitie to such as should inhabite it q Bodin lib. 1. de republ c. 6. And so diuerse of our kinges of England haue bestowed many liberties fraunchises and benefits vpon seuerall citties which M. Camden hath verie profitably very learnedly amongst other things in their due places set downe whome I need not further commende to my country-men of England to whom by his great worth and desert he is more deare and precious Quà m si illum Veneris commendet epistola Marti But I will further proceed in shewing the great prerogatiues graunted by princes and other supreame estates to citties and corporations In all ages and all common weales cities and corporations haue not only had their courts folkemote and the like but euen common councels as they are commonly tearmed and publike meetinges for the generall good of the corporations For as great profite doth arise by such societies and meetinges so nothing doth more debilitate and weaken the state of a common weale then the taking away of such Councels therefore the Romanes when they had ouercome Macedonia because they would make the estate of it weake and impuissant they did vtterly forbidde all common Councels and publike meetinges so they did when they had ouercome the Achaeans Memmius the Consull saith Liuie did dissolue all the common councels of the particular nations of Achaia and of the Phocensians and Baeotians and the other partes of Greece r Liui. lib. 35 But when these regions and prouinces were sufficiently quieted and soundly knit to the bodie of the Romane Empire then as Strabo reporteth their auncient Councels were restored vnto them but the Romanes did neuer alter the liberties of any citie vnlesse they were abused to their hurt as appereth by the words of Florus Critolaus causa belli qui libertate a Romanis data aduersus ipsos vsus est ſ Flor. lib. 2. Neither were the liberties of the Aetolians impeached vntill they reuolted to Antiochus as Iustin sheweth Offensi Aetóli quód non ex arbitrio eorum Macedonia quoque adempta Phillippo data sibi in praemium belli esset Antiochum in Romana bella impellunt t Iustin lib. 3. And such abuses many times happen in cities for as Liuie that excellent writer in wit diligence and history matched by none in wisedome and grauitie by very few in pietie ouercome onely of one of the heathens 1 Varro 2 Cicero and but of one in eloquence well auoucheth Nulla est ciuitas quae non et improbos ciues aliquādo u Liui. lib. 45. imperitam multitudinem semper habeat but as they did fauour lawfull and conuenient councels so vnlawfull and secrete conuenticles they did greatly abhorre wherefore the nocturnall meeting at the sacrifice of Bacchus was iustly abiudicated and disanulled by the whole Senate the conuēticle of the black-religioned Brownists by the L. Archbishop of Canterburie the high Commissioners who though a greater number of them were women pretended themselues to be harmeles vnapt to do hurt yet as Liuie saith A nullo non genere summum periculum est si coetus consilia et secret as consultationes esse sinas x Liui. lib. 34. And this ought especially to be feared and preuented whē contumelious contumacy is vailed with the shadow of religion and reformation for as the same Liuie saith againe very well Nihil in speciem fallacius praua religione vbi deorum numen praetenditur sceleribus subit animum timor y Liui. li 1. 39. O lord how long shall Sathan abuse the soules created by thee with a
vaine sophistrie in steade of true religion and such societies and such families whether of loue or of lust I can not well define which delight in latebris are worthy to be sent ad carceres that they may there liue in tenebris for it is fit to send corrupt humors which ouerloden and pester the bodie in latrinam For surely such Fanatickes may doe as great hurt in a common weale as the Pythagoreans did in Greece and Italie who pretending themselues to bee professors of wisedome did bring a great number to the admiration and imitation of them and finding such strength in the weakenesse of the multitude they beganne to plant their ramme and sette their force against kingdomes common weales and had thought vtterly to haue subuerted them but their companies were quickly dispersed and the greatest parte of these companions was destroyed by fire and sword a Polyb. li. 3. Now to speake somewhat of the liberties of a citie S. Paul when he was by the commandemēt of the magistrates apprehended being accused that he troubled the publike tranquilitie by seditious assemblies professing himselfe to bee a citizen of Rome hee appealed to Caesar b Act. 25. v. 11 though hee were by nation a Cilician by bloud an Israelite by tribe a Beniaminite yet because his father c Acto 22. v. 28. had beene a citizen of Rome the liberties were affoarded vnto him he likewise when he was commanded to be scourged pleaded for himselfe that he was a Romane d ibid. v. 25. But because the abundance of liberties of all the cities of Asia Africke and Europa are sufficiently knowne I will not stay any longer vpon this point but wil passe to matters of greater importance and more difficultie The ninth Chapter That the distinguishing of demesnes the difference of the degrees callings of men is according to the law of nations COnfusion breedeth alwaies contention partition peace according to the old prouerb Diuide et impera for which cause our ancestors did thinke it best to distinguish their dominions and inheritances by lottes and boundaries as Abraham Lot in Palestine Masinissa and the Carthaginians in Numidia and Mauritania the Romanes and Nolanes in Italie the Romanes and Carthaginians in Spayne and Sicilie the Emperour Valens and the Gothes in Missia and the regions on this side Danubius through the whole tracte of the Romane Empire was a partition made by Theodosius betwixt his sonne Archadius whom he prefected ouer Bizance and all the orientall partes and his other sonne Honorius to whom he allotted Roome and all the occidentall countries and so Darius would haue made a partition with Alexander of the whole world that the one of them shold haue all on the one side of Euphrates the other all on the other side yet in the first age and infancie of the world this kind of partitioin was vnused and vnknowne as may appeare by these authorities first of Virgill who saith Ne signare quidem aut partiri limite campum Fas erat a Virgi Georg. 1. And of Tibullus non fixus in agris Qui regeret certis finibus arua lapis b Tibul. 1. Elegi 3. And that of Seneca Nullus in campo sacer Diuisit agros arbiter populis lapis c Senec. in Hippoli act 2. yet the case was altered when Ouid writ thus Gentibus est alijs tellus data limite certo Romanae spatium est vrbis orbis idem d Ouid. 2. Fasto And vpon good reason was it altered for as Boetius saith well Dimensiones terrarum terminis positis vag antibus ac discordantibus populis pacis vtilia praestiterunt e Boeti in geomet And the great vse of limits and boundaries Plutarch sheweth when he condemneth the vnsatiable couetousnes and illimited encroachment or inuasion of Romulus verie wittily Noluit Romulus mensurâ proprij agri prodere mensuram alieni siquidem virium compedes terminos esse nouit seruarentur iniuriae iudicium si non seruarentur f Plut. in Num. pr. R. 15. And this was the cause that Numa Pompilius the king of the Romanes did cause as well a publik perambulation to be made throughout his whole kingdome as priuate limitations bounds betwixt partie partie and for the more solemne and effectuall confirmation and establishing of this course he did dedicate a chappell vpō the top of the Tarpeian hill vnto Terminus and this idoll was made of stone g Plut. in Num. He was set in a chappell as not fit to be remoued hee was made of stone as hard to be remoued he was placed vpon a high rocke as not possible to bee remoued and to this idoll nothing was sacrificed but cakes pulse and the first fruites of the field the meaning doubtles of Numa was good if it had not beene signified set forth by an euill meane For to make him immoueable was to good purpose and agreeable to the truth of diuine iustice Wherefore Salamon saith that which also is commaunded in Deuteronomie Thou shalt not remoue the auncient boundes which thy fathers haue made h Deut. 27. 17 Prou. 22. v 28. 23. v. 10. but the manner of diuiding lands dominions according to the custome of nations is fully set downe by M. Littleton though applyed to another purpose it is fiue-fold 1. By setting out an equal rate of the lands to be diuided 2. By the agreement of frends or intermediation of others 3. By casting lots 4. By writ de partitione facienda at the commō law the action de herciscunda familia at the ciuill law 5. By making an vnequall partition equall by a forrein reseruation i Littlet lib. 3. c. 1. Distinctions likewise of the degrees of men hath beene in all nations in all ages established obserued and vsed For the aduancing of noble men aboue them of lesse note and the preferring of the gentleman before the yeoman and peasant is very ancient and hath beene vniformely reteigned neither is it to bee maruelled at for nature her selfe hath tought the nations her schollers this lesson Trauaile through all her kingdome that is through the whole world you shall find this difference in force and of great validitie Consider the scituation of the celestiall orbes and ye shall note that the fierie heauen is placed aboue the chrystaline as more worthie both these aboue the firmament the firmament aboue the other Spheares as surpassing them Marke the birdes of the ayre ye shall perceyue that the Eagle the Phaenix and the Parott holde preheminence aboue the rest Looke vpon the riuers ye shall obserue Euphrates in his forme and compasse of his streame to be more excellent then Ganges Ganges better then Danubius Danubius better then Tagus Tagus then Padus Padus then Tempse Tempse then Seuerne Note the fishes of the sea yea shall find these to haue place aboue the rest the Whale the Dolphin the Sturgeon
vtterlie fall to the ground But in other respectes he did wholie fauour such as vertue had ennobled For Aemilius Scaurus though he were a poore man pouertie is no dishonestie yet he was noble l Valer. Max. lib. 2. for sometime nobilitie is seuered from riches Therefore Tacitus saith of Cassius and Syllanus Alter opibus vetustis alter generis claritudine excellebat yet a man may be noble and verie rich as Tullie saith of Roscius That he was nobilitate et pecunia municipij facile primus But it is good to be knowen whether base artificers are to be enseated and bestowed in places of worth and credite Xenophon reporteth that amongest the Aegyptians Scythians Persians Lacedaemonians Corinthians they which did vse base and mechanicall trades were excluded from places of accompt and were accompted ignoble m Xenoph. in oecumen Aristotle likewise writeth that amongest the Thebanes it was a Law that no man could be admitted to place of honor vnlesse he had left off merchandize by the space of tenne yeares before n Aristo in polit And the Romanes followed them in this for as Liuie saith Quaestus omnis indecorus patribus visus est And Hippolytus a collibus writeth that it hath been generallie receiued that whosoeuer is a gentleman or possessed of an honorable estate beginneth presentlie to be ignoble by vsing merchandize vnlesse it be otherwise prouided by the Statutes of some particular Prouinces or Cities as by the Statutes of Venice of Florence of Genoa of Luca and of London where manie of their Senators magnificoes clarissimoes illustrissimoes are Merchants o Hippolyt a collib in lib. de princip And it is the rule of a diuine morall and politike writer that husbandmen carpenters potters caruers either in wood or stone and the like workmen are wholie to be debarred from honorable or iudiciall places p Ecclesi c. 38. And by the imperiall Lawes Merchants may not be aduaunced to anie honorable estate p L. ne quis de dignit C. L. si cohortat de cohort L. humil de incest C. neither might they haue anie regiment of souldiers q L. 1. negotiator ne milit C. And Plato r In lib. de legi Aristotle ſ Lib. 7. polit c. 9. and Apollonius t Philostrat doe hold merchandizing to be an enemie to vertue Neither will Ciceroes distinction be of anie force against them where hee saith Mercatura si tenuis est sordida putanda est si magna et copiosa multa vndique apportans multisque sine vanitate impartiens non est admodum vituperanda u Cicer. lib. 1. offic For though his commendation of merchandizing bee not verie great yet his opinion in this is not greatlie good for Maius et minus non variant speciem And the ironicall saying of the pyrate to Alexander was a confutation of this distinction a Cicer. 3. de repub who tolde him in plaine tearmes That because he did robbe on the Sea with one small pinnasse he was accompted a pyrate but because Alexander did the same with manie great Gallies therefore he was tearmed the gouernour of a fleete For as Lucan saith well Facinus quos inquinat aequat And the same Lucan calleth Alexander b Luca. lib. 10 Foelicem predonem a fortunate Robber And this aunsweare of the pyrate to Alexander is liked of Ciceto himselfe c Cicer. 3. de rep of S. Augustine d D. August lib. 4. de ciuitat dei and Alciat e Alci 1. consi 1. Likewise it hath been a question sometime sifted whether he that vseth husbandrie may properlie and in strict reason bee accompted a Gentleman In the common Law wee haue this rule that where a Gentleman is sued by the name of Husbandman he maie saie that he is a gentleman and demaunde iudgement of the writte without saying that he is no husbandman for though a gentleman may be an husbandman by the said Law yet he ought to be sued by his more worthie addition f 14. H. 6. 15. 1. E. 4. 2. 21. H. 6. 55. 12. H. 6. 8. Neither doth our Law in this dissent from the practize of other Nations For Cyrus did verie often boast of his labour and industrie in matters of husbandrie g Cicer. lib. de senect And these noble Romanes Serranus Curius Cincinnatus Torquatus and Cato are commended of Historians and others for this that they did establish the safetie of the common weale by their handes which were worne and growne rough by the plough and labour of husbandrie h Valer. Max. Varro Cicer. Liui. Florus In Iewrie and Aegypt how much it hath been esteemed may appeare by this that neither could Phara◠pleasure Iacob more to his contentment Neither could Ioseph procure a greater pleasure vnto him then the meadow ground and pasturage of Gozan in which hee inioyed the comfort of his age In Scythia Arabia Parthia Arcadia and other places as India Thracia Mesopotamia Sicilia c. Husbandrie hath been greatly practized and in other Nations not so much addicted to husbandry exceedingly praised Diuines haue in all ages countries possessed the reputation either of gentlemen or of reuerend right reuerend worshipfull and right worshipfull men and that vpon good reason which by and by God giuing leaue I will demonstrate Whether Phisitians may beare anie of these aforesaid titles or no it hath been in all ages questioned in some debated in this decided Though amongest the auncient Romanes phisicke was accompted base and sordid by the space of sixe hundred yeares i L. Thais § Lucius de fidei commiss yet about the imperiall time it was receiued into the citie k L. quidem C. de decuri and highlie esteemed But the Hebrewes and Graecians did alwaies make great accompt of the professors of that science and so did other nations also when the Arabians first of all had seuered Surgeans Emperickes and ignorant Apothecaries from Phisitions But let their accompt be great in a citie or common weale yet they must giue place to the profession of the Law as being a princelie discipline the center of common weales and the science of gouernment as I haue at large shewed in the first Chapter of my direction to the studie of the Law And this euen Philosophers haue adiudged l Plat. in Gorg. Aristo lib. 1. polit c. vlt. But now whether meere Grammarians and Rhetoricians I meane sole single professors of these Artes may challēge to themselues the title of gentrie and worship it hath verie much been doubted Cicero saith of Rhetoritians Rhetores M. Crasso et Domitio Censoribus claudere ludum impudentiae iussi m Cicer. lib. 3. de orat But after his time it was receiued into the citie and obteined manie great immunities yea euen these which taught boyes their Alphabet or first letters were so rewarded n l. 6. de exe tut l. vlt. in fi de mu.
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
slaine a man did penance by doing pilgrimage on the mountaines and then sacrificing vpon the tombe of the dead and so being cleansed of the Gymnosophistes The Persians vnder the reigne of Semiramis did shaue the head of him that had slaine an other and confiscated his goodes and caused him to go vppon burning coales or firebrandes and then sprinckled him with water the patterne of the Popes purgatorie t Sard. Ferrar. de mor. gent. The Iewes did vsually kill such by sword or by rope u Card. Sigogoni in lib. de rep Hebr. according to the commaundement of God Qui effuderit sanguinem hominis in homine sanguis eius effundetur quia ad imaginē Dei fecit hominem x Genes 9. v. 6. Matt. 26. v. 52. How murther hath beene punished by the ciuill law the canon law and the common law of this realme I haue shewed I hope sufficiently in my Parallele of the lawes so that I shall not need here to rowle the same stone After the hurt of a mans owne bodie nothing can happen to him worse then the abusing of the bodie of his wife for as Salomon saith iealousy is the rage of a man therefore he will not spare in the day of vengeance a Prouerb 6. v. 34. This last did first cause the diluge and after the diluge the destruction of the people of Sodom and Gomorra voluptuously mingling themselues with the women of the Moabites where there were twentie and foure thousand slaine b Num. 25. v. 9. For the vncleannesse of the Gabeonites with the Leuites wife the whole tribe of Beniamin was destroyed c Iud. 20. By the law of Moises if any had committed adulterie with another mans wife the adulterer and the adulteresse were both condemned to death d Leuit. 20. v. 10. so was adulterie punished by the Romane lawe called the law Iulia howsoeuer it slept in Iuuenall his time one that had beene wanton himselfe Vbi nunc lex Iulia dormis yet after this law was recalled by the Emperour Alex e l. Castil C. ad l. Iul. de adulter therefore Constantine did punish sacrilegious destroyers of marriage by the sword f l. quamuis c. eo therfore the Popes stewes are to be abandoned by whose contagion all Europe hath offended Let his holines his fulminant foolish deity as well in all other respects as in this bee measured by the law of God and it will appeare to bee abomination by the law of nations and desolation by the law of God which all nations owe vnto him God hath said Non erit meretrix in Israel nec scortator g Deut. 23. v. 17. By the imperial law it is forbidden that no bawdrie should be exercised or any stewes suffered in any place through the whole Romane Empire h Nouell Const 14. Lactantius writeth i Lact. lib. 6. c. 23. that the deuill consecrateth stewes as the Pope doth Iesuites and Seminarie priests the one for spirituall lust and idolatrie or if that faile for treason the other for carnall that he may solemnely laugh both at the adulterer and the adultresse and so make a banquet of both which is signified by the Italian by-word The woman is the fire the man is the roast-meate in commeth the deuill and he playeth the cooke k Flor. giardin de recreat In Germany they vse to cut off the heare of an adultresse and the husband whippeth her out of his house through the streete l Far. lib. de mor. gent. and I haue seene some of them balded here in Englande with a white sheete on their shoulders on the market daie but that custome is now as far as I can perceiue disused I could wish that it were recontinued that we might know a knaue and a queane by their coloures And they were wont likewise to haue a bell runge before them which was a custome vsed amongest the Romanes as Perseus sheweth who because it was wont to be runge at nine of the clocke calleth them therefore Nonarias a custome discountenanced and broken by Theodosius but for what reason I know not shall we vse nothing that the Gentiles haue vsed Mahomets law is too light for this fault for the adulterer is punished but with an hundred stripes But in Aegypt in auncient time he had a thousand and the nostrils of the adulteresse were slitted Solons punishment likewise was too light yea and against reason who imposed vpon him that rauished a maide the mulcte of ten groates vpon him that allured a maide to naughtines twentie But in Athens afterward the rauishour was punished with death if the rauished partie would not marie him m Far. lib. de mor. gent. In the prohibition of theft all Nations haue likewise consented They that steale a sheep out of the flocke or an oxe out of the heerd are both by the Ciuill and common Law theefes n Vlp. lib. 1. ff de abig They which steale Doues out of a douecote are by the ciuill Law accompted theefes o Instit de rer diuisi §. serm l. 3. But by the common Law felonie cannot be committed by the taking of beastes that be sauage if they be sauage §. item fer ff de acquir rer poss Iustit de rer diuis §. gallinar l. si pauon ff de furt and vntamed at the time of the taking nor for taking of Doues being out of a douecote nor for taking of fishes being at large in a riuer for such taking is not contrectatio rei alienae sed quae est nullius in bonis p 18. H. 8. 2. 22. Ass pl. 95. And the stealing of a Doe which is tame and domesticall is felonie But as Mast. Stamford well noteth it seemeth that he that stealeth it should haue certaine knowledge that it is tame but if the Doe be killed and then stolen this is certainlie felonie q Stamf. lib. 1. cap. 16. And he that theeuishlie cutteth a mans vines by the ciuil Law is punished as a theefe r L. scien ff arbor furt caes And by the Law of the twelue Tables if anie man did cause his beastes to feede vpon or himselfe did cut and carie awaie Corne growing vpon the ground if he were of full age he was ordeined to be hanged and to be sacrificed to Ceres if not he was whipped and did yeeld either the dammage or if he were obstinate the double Wherein the Decem-virs did seeme to haue imitated the seueritie of Draco who did inflict no lesse punishment vpon the stealers of grapes and hearbes then vpon homicides and sacrilegious persons But the Romanes succeeding altered this and inflicted no other punishment then that which is aboue mencioned to be imposed vpon him who is within age But as the Law of Moses ſ Deut. 23. ver penult et vlt. so it seemeth the Law of Nations did permit a trauailer to relieue his hunger and to taste so manie grapes as
his present vse did require but not to take them awaie with him But by the common Law if a man cut Trees and at the same time carrie them awaie this is not felonie but a trespasse But if they lie vpon the ground a long time as the goods of the owner of the soyle this is felonie t 22. E. 3. Corone 256. 10. E. 4. 15. Stamf. 25. The Praetors of Rome did punish a theefe poena quadrupti and the Iewes with the seauen-folde or if his goodes would not amount to so much with all the substance of his house u Prouerb 6. vers 31. They of Mysia do break the legges of theefes uu Far. lib. 2. c. 26. The Scythians do punish petie larceners with whippes But if a thing of good value be taken awaie they must render the nine-folde or els be put to death a Far. lib. Amongest the Phrygians he was put to death that stole anie instrument of husbandrie or did kill an oxe that was fit for the plough because the liuing of these countrie-people did much consist of husbandrie b id ibid. As in Halyfax he that stealeth but a yard of cloth is presētly put to death because the whole liue-lode of the most of them resteth incloth And as to the interdiction of false witnesse or testimonie all Nations haue subscribed The Graecians did enforce their witnesses to sweare at the altar And Plato saith that witnesses were wont to sweare by Iupiter Apollo and Themis signifying c Cicer. pro Flac. by Themis that they which did sweare falsely did offend contra ius diuinum humanum signifying by Iupiter that they should not escape the reuenge of the wrath of God by Apollo that their falshood and periurie could not be concealed and one witnesse that hath seene a thing done hath beene more credited then ten that doe onely testifie by heeresay Pluris est oculatus testis vnus quà m auriti decem saith Plautus d Plaut in Trucu And to this purpose Homer did imagine two gates of dreames one made of iuorie by which false shadowes did passe the other of horne by which true By the iuorie he meant the teeth signifying that by report manie fables did growe by the hornie gates he meant the eyes shewing that the eye-sight maketh the truest report e Hom. in Ili Iustinian calleth it oculatam fidem when the thing is knowne by the eye sight f § vlt. Iust de grad And he hath diligentlie prouided by his Lawes that innocencie might be safe against sycophants g Nouel constit 13. et 16. And it is a diuine saying in the ciuill Law Testimonia instrumenta non tam ad praestigium probationum quà m e conscientiae quae mille testium loco est fide producenda sunt h L. propriet l. vlt. C. de probat l. eos test C. de testib In England it is seuerelie punished by the Statute of 5. Elizab. and this is according to the Law of God Non iurabitis in nomine meo mendaciter neque polluas nomen dei tui ego dominus i Leuit. 19. v. 12. For truth was so much fauoured amongest the Heathen that the Aegyptian Iudges had the image of Truth hanged about their neckes And the coueting of the thinges that belong to an other man is likewise forbidden of his wife Qui aspexeret vxorem proximi sui ad concupiscendam eam iam adulterium perpetrauit cum ea in corde suo k Matt. 5. ver 28. And Iustinian his Law is tarte Si quis non dicam rapere sed attentare tantummodo virgines sacras auserit capitali poena feriatur l C. de Episcop et cler l. si quis non dicam And S. Chrysostome saith well Si mulier or natur vt viros irritet etiamsi neminem vulneret tamen adultera est ll Chrysost in Matth. 1. homil 17. But some who are glad with fig-leaues to couer their faultes and to purge their blacke iaundise with a glister of inke doe excuse their sinne by Dauids example hauing committed adulterie with Bersabe the wife of Vria and make that their protection for which Dauid craued a pardon But their soules are therefore more sinfull because they followed Dauid as he was a sinner the woman was far off but temptation was neare as S. Augustine saith m August in com̄ sup Psal 51. his owne flesh was his betrayer and when he opened two eyes to behold her beautie hell opened two gates to sinne by the one of which came adulterie by the other murther into Dauids hart The desire likewise of an other mans landes or goods hath been euen of the Paganes detested Vicinorum sulcos non transgreditor neque interuertito saith Iustinian the Emperour n Iustini l. Georg. tit i. Ne transgrediaris terminos antiquos saith Plato o Plat. lib. 8. de legib And therefore as I haue shewed before Terminus was worshipped of the Romanes for as the Poet saith Omnis erit sine te litigiosus ager And the Law of the twelue Tables was Qui terminum exarassit ipsas et boues sacri sunto Cu. Pompeius is highlie commended of Plinie because he would neuer buy anie mans ground that laie and so haue beene put to death i Heliod lib. 1 Therefore some k Alberic Gentil lib. 1. de iur bell c. 4. doe woonder that D. Hotoman dare affirme that the Law of Nations doth extende to fugitiues and robbers l Hotom 7. vlt. quaesti and his first reason is because there is no Law which doth interdict or forbid to couenant or contract with them and such thinges as are not verballie forbidden are implicatiuelie permitted This reason is of no force for in that they be enemies to all and doe spare no man they ought not to protect themselues by that which is the Law of all men The question is not what may bee done vnto them and how manie haue dealt with them but how by rigor of Law and strict reason they ought to be dealt with To dispute of Law is to dispute of a bonde whereby we are bound but wee are not bounde to such He bringeth likewise for proofe the saying of Caesar Should it not bee lawfull for Citizens to send embassadours to their fellow citizens when the same hath been permitted to roagues and theefes haunting the wilde woodes of the Pyrenean mountaines m Caesar lib. 3. de bel ciuil But this maketh nothing to his purpose for Caesar doth not there directly affirme that it was lawfull but he spake it rather to bring the Pompeian faction into hatred signifying that they did afforde the securitie of embassing to such lewde persons whereas to their fellowe Citizens they did vtterlie denie it But heere difference must be held betwixt an absolute monarch which taketh pray or spoyle vppon the seas and dominions of other princes and these which bee pirates without all colour of iustice
transported from Troy to Greece from a floud of hony to a sea of nectar being the blazing starre to that famous warre which the brauest soldiers doe at this day admire At Capis quorum melior sententia menti what thought they of this popular miracle what thought Eneas that she was Troiae patriae communis erinnis what thought Antenor a wise iust and vertuous nobleman Antenor censet belli praecidere causam But if euery thing that the common people approueth be commendable what is then discommendable euen that which deserueth most commendation namely vertue it selfe When one tolde Antisthenes that the most part liked him hee demaunded of him incontinent for what vice they liked him as if it were impossible that vertue should please the common people Anacharsis thought it verie inconuenient that artificers should contend in cunning and these that had no arte should bee iudges of their cunning by the same reason they that are not vertuous can not iudge of them that be vertuous if they can not iudge of them how can they with conscience praise them and if not them how can they with safe conscience praise others Is it not therefore a madnes to gape for their suffrage which are incompetent iudges and to care for their controlment which are vnsensible censors Phocion liked nothing that the common people liked Seneca thinketh that none can please the people to whom vertue is pleasant ee Senec. epist 29. The multitude haue this prouerbe verie rife in their mouthes too many to bee good and yet in this glasse they can not see themselues as they likewise said â—mnia plena stultorum forgetting themselues This beast of many heades hath a threeforked tongue with the one part it tickleth the eares of them whom they flatter with the other it licketh their wounds with the last and sharpest it pricketh their hearts with the first they flatter them lulling their sences with faire wordes and with soft speeches sliding into the bosome by forgeries and fables with the other they licke their woundes excusing their crimes extenuating their faultes cooling and calming their rage that are incensed against them with the third they pricke for let the popular idoll be once crushed none will sooner tread vpon him then the people if perhaps they weepe for him in this especially the prouerbe verified lachryma nihil citiùs arescit They deale with their idols as the diuell dealeth with witches when they are in prison they leaue them Nay for the most part none are more proan and readie to accuse when time serueth then these adulatorious excusers Quo teneam vultum mutantem protea nodo The wayward people may be iustly compared to a bundell of thornes which will beare vp a great man but will pricke him if he leane or lie vpon it They are like the windes which Neptune trussed vp and deliuered in a bagge to Vlisses f Ouid. in Metamorph. beeing sure as long as the mouth of the bagge is shut but if there be neuer so little a chinke or riffe they quicklie glaunce out one raunging one way an other some other way like to Samsons foxes with fire-brandes at their tayles What a frenzie is it therfore for any to plant his credit vpon such restles braines as if a man should endeuour to make the sea solid to make mountaines plaine to build a castle in the aire and to measure a flies foote for these blind puppies follies naturall children melius peius profit obsit nihil vident nisi quod lubet g Terenti But who list to know the maners and practizes of the people more fully let him bend the right eye of his mind to historicall contemplation then he may see Verres accused and conuicted of diuers villanies of notable spoyles and robberies of a thousand excessiue briberies at the least false iudgements in number more yet by plebiscite or popular determination to be quitted and freed but by the sentence of the same Iudges Rutilius Metellus Coriolanus Scipio the elder Affrican and Cicero men of rare vertues are confined and banished out of Rome innocent Hermodorus is thrust out of Ephesus Aristides chased out of Athens Themistocles dieth in exile Socrates endeth his life in prison so vniust a measure to good deserts is the fantasie of the multitude Phocion a mirror of integritie the glorie of his time and the honour of Athens who was fortie and fiue times chosen by the earnest desire of the people to be their chiefe Captaine which he administred to the great good of that estate yet in the end they condemned him to death h Plut. in Phoci But Antiphon that vicious varlet and steigne of Athens was by the people absolued and acquited as altogether innocent which absolution Demosthenes not brooking did so hotely pursue the matter that he caused him afterward to be condemned and put to death by the decree of the Areopagites i Plut. in Demosth And alas what praise can there be giuen to the people for any action commenced and caried by them did Rome florish by popular effectes no Salust saith that the credit therof belonged to some fewe excellent gouernors k Salust in princip Catâ—l Liuie saith Sub vmbra Scipionis vrbem terrarum dominam latere nutus eius pro decret is patrum pro populi iussis este Vnder the shadow of Scipio the Citie the Ladie of the word did cabbon his beckes were the decrees of the Senate the commaundes of the people l Liui. lib. 30. So did the Thebane state a long time florish but it was by the wisedome of Pelopidas Epamondas and other speciall men So the Athenians hauing lost their prudent gouernor Pericles they lost the true and essentiall forme of their Citie which being as a ship in the middest of the sea without mast and rudder whilest one casteth the anchor an other spreadeth the sayle one keepeth the hauen an other mooueth the sterne all goeth sodainlie to wracke m Polyb. lib. 6. Foolish were the Argentinians Lindouians they of Seene they of Genoway they of Florence who seeking to settle popular gouernement did pluck vp from the roote their auncient nobilitie and hauing made three degrees of Citizens some great some meane some vulgar They of the two last rankes did vtterlie subuert the gouernement of the first and then contending amongest themselues did burne in such furie one against an other that streames of bloud did run in the streetes and the state being now couched and deuolued to the dregges of the people they neuer left of killing and slaughtering till by the aduise of the Pope and the neighbour-cities they had wholie submitted themselues to a straunge gouernour n Anton in et Machiauel in hist Flor. Thus in the end they came to a Monarchicall estate And these Nations which haue no resemblance of a citie in them do create a Duke or Capitaine who may gouerne the rest and prescribe Law vnto