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
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
§ 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
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
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
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
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
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
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
ye your selues like vnto men that waite for their master when hee wil returne from the wedding whereby it is manifest that some testimony of friendes and neighbors is d Luk. c. 12. v. 35. 36. requisite to the celebration of mariage and Pope Innocent the third reporteth that this was no new guise nor any popes inuention but the custome of the ancient Christian Churches that conuentiones matrimoniorum in ecclesia promulgentur e cap. 4. extr de cland desp And this promulgation is in Lumbardie called Bannum f c. cum tua extra despons in England the Banes or asking in the Church by the custome of diuers common weales it is called manasse the giuing of hands g in c. cum tua 6. qui matr accus poss so is the rule of Iustinian the Emperour who saith that if any diuinis tactis scripturis shall sweare vnto a woman that he will marrie her this saith he is sufficient for the contracting of marriage but yet there must bee a publike celebration of the marriage according to the rite solemnitie vsed in Christian churches h Iustin Non. 74. §. 4. so then it is in some clearenes that consent principally maketh mariage as the grounde of that strait societie and the celebration is as the forme rising out of this materiall cause which maketh it to bee knowne and to bee publikely notified and ratified for as to the age of the partie who is to bee marryed that hee shoulde bee plenis nubilis annis or that hee should haue power of ingendring vt iusto accedat robur amori or that they may bee equall in degree because dulce iugum paritas these doe not make mariage but cause it to bee a more conuenient mariage but the consent that maketh mariage must be ouert and expresse for though the parties will doe appeare in a secret will and which may onely be proued by circumstances yet consent is onely verified in an expresse vnfolded wil wherefore D. Baldus saith wel that a neutrall consent which is not demonstrated by word nor by deed is not correspondent to the actes of men neyther doth it make them essentially perfect Now if any man doubt whether the consent of the parties onely do knit the marriage or the fathers consent be necessarie as to that point the ciuill lawe which in this matter all nations follow for the reasonablenesse of it standeth thus Eorum qui in potestate patris sunt sine voluntate eius matrimonia iure non contrahuntur sed contracta non soluuntur contemplatio enim publica vtilitatis that is to fill the Citie or common weale with people priuatorum commodis praefertur k Pant. l. 2. senten And againe Si forte pater concordans matrimonium that is a fit mariage forte liberis subnixum that is confirmed by procreation of children velit dissoluere et certo iure patriae potestatis turbare sic erit res tractanda vt patri persuadeatur ne acerbe patriam potestatem exerceat l lib. 1. de lib. exh The sixth Chapter That by the practise of all nations Democracie hath beene bette downe and Monarchie established DEmocracie I haue alwaies taken contrarie to the auncient diuision of Monarchie aristocracie c. to be no forme of a common weale if it bee properly taken for the equall sway of the people without any superioritie for the heele can not stand in place of the head vnlesse the bodie be destroyed and the anatomie monstrous it is against the nature of the people to beare rule for they are as vnfitte for regiment as a mad man to giue counsaile which Anacharsis well perceiuing did laugh at the assemblies and counsels of the Athenians because they did commit the summe of their affaires to the peoples furie and Xenophon writeth thus of the Athenian that is his owne common weale I can not allowe the state of the Athenians because they embrace that forme of common weale in which wicked and lewde persons doe more flourish then good men and innocent a Xenoph. in lib. de repub Atheni which commonweale notwithstanding Bodinus calleth vntruely omnium popularium laudatissimam Plutarch as vntruely omnium minime vituperandam but if it be true that they say in how miserable estate are other popular common weales all which the Romane common-weale onely excepted are farre short of the Athenian estate and Machiauel did abuse his owne pen and the patience of others in one place preferring Democracy before al other kinds of gouernment b Machia in obseru in Liâ—i yet in another place shewing how he wold haue Italie restored to the ancient glorie and excellencie he sheweth that that can not be done but by a monarchie and onely by the Popes monarchie c Machiauel in lib. de princip c. 9. in this point accomplishing the part rather of a magician then a mathematicke wishing for that which the deuill would desirously effect but imagining that which in truth can neuer be yet again he departeth from this opinion when hee preferreth the Venetian common-weale before al commonweales d Machiau in Liui. Plato was wont to call Democracy Nundinas populares the peoples fayre wherein euery thing was sold for money Aristotle disagreeing from him in many things yet he agreeth with him in this vtterly condemning Democracie vsing not onely strong reasons of his owne but Homers authority for it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and Maximus Tyrius a worthy man in his time that hee might e Maxim Tyri orat 3. conuince Democracie to be a most pernicious euil bringeth for proofe herof the examples of the Athenians the Carthaginians the Siracusans and the Ephesians if a man should seriously respect the brittle dependance of things vpoÌ„ the peoples braines he shall easily and clearely perceiue that whosoeuer shal but ground his owne estate much lesse the estate of the coÌ„mon weale vpon the peoples fantasies domuÌ„ ex luto facit findeth nothing more certain then vncertain accidents if a man should compare honour to vulgar reputation he might as well compare a course packthreed to the fine twist of the silkeworme a garland of iuie to a crown of gold to be straight way an honest maÌ„ because the multitude commend him is no more necessarie then that a man should be euill because few are like vnto him I wold rather like a coÌ„trary argumeÌ„t he is liked of the most therfore he is not to be followed of the best who was more fauoured by the gretest part of the Troians theÌ„ the strumpet Helena she that was recouered recaried forsooth for her excellent beautie by so many thousand shippes by so many valiant vnconquered captains after the downfal of a goodly citie after the flames of so many wars after so many spoiles and homicides The people did wonder at that paragon as hauing excellent felicitie to be caried home in so glorious a triumph to be
the Salmon and the Conger Cast an eye vpon the beastes of the field the Lyons the Pardes the Elephants and Panthers do excell looke into the bowels matrice of the earth ye shall haue gold siluer brasse to exceed all other mettals search into the inwards and the very closet of nature the best of the grosser stones are the Loadstone the marble and the Alabaster amongst the precious stones the Diamond the Topas the Turkoise the Smaragde the Saphire the Chrysolite Wherefore the difference of estates degrees is well limited and expressed by the custome of nations the discrepance betwixt noble and ignoble well constituted which first I will generally handle as it were opening the signification of the words and afterward more fully particularly as drawing it in a map by pencill This world nobilis if it be generally taken extendeth as wel to gentlemen as to them which by preheminence we cal noble for nobilis is quasi noscibilis either for his stocke or for vertue the nobilitie of stocke or bloud hath been more obserued of the Hebrews Grecians of vertue by the Romanes and them of the Northerne regions so he hath beene accompted ignoble who hath not beene known nor noted for some eminency rarenes according to the verse Solus vbi in siluis Italis ignobilis aeuum Exigerit Amongest the Graecians at the first they onelie were accompted noble who could deriue their pedigrees from kinges or princes or some other great and famous men as from Hercules Cecrops Aeacus and the like or such as by publike decree and singuler demerit had obteined a crowne of gold or some statue to be erected for them And amongest the Iewes they onelie were accompted noble which descended from the stocke of Aaron or the kinges of Israell and Iuda But the Romanes were farre otherwise minded for as Salust saith Hostem ferire murum ascendere conspici dum tale facinus facerent properabant eas diuitias eamquè bonam famam magnam nobilitatem putabant a Salust in Iugurth And an other Romane saith Genus qui laudat suum aliena laudat b Senec. And an other namelie Ouid Nam genus et proauos quae non fecimus ipsi vix ea nostra * Ouid. Metamorph lib. 13. voco which golden saying so much pleased that worthie and noble knight Sir Philip Sidney Learninges champion Englands miracle Europes fauorite of whom the wordes of Horace may be verified if euer they might be truely pronounced of any Dignum laude virum Musa vetat mori I say they so much pleased him that he vsed them for a mot And I know not whether Ouid his inuention * Ouid. or Sir Phillippes election be more to be commended And nobilitie without vertue and merit was accompted as an image without life For Salust saith Reliqui sunt inertissimi nobiles in quibus sicut in statua praeter nomen nihil est additamenti for what difference was there betwixt Ciceroes statue and Ciceroes drunken sonne sithence both of them had the name neither of them the qualities of Cicero But as well the Graecians as the Romanes did agree in this that for the rewarding of vertue and the honoring of desert and the animating of others they did allow Scutchions and Armorie Crestes and Cognisances to men of speciall note Which our auncestors saith Plinie the representations of their dead fathers were proposed to view their countenances were resembled and engrailed in their Armorie that there might be some ornaments to decke and beautifie the celebration of publike funerall Now to speake more particularlie of the degrees of men according to the Law of Nations The degrees of Citizens are to be vnderstood these which make a difference by state or place not by sexe as Bodinus grosselie imagineth c Bodin lib. 3. de rep c. 8. for if there were none but males in a citie yet it should be a citie otherwise how was Rome a citie before the entermariage of that people with the Sabine dames d Liui. lib. 1. By the customes of Perusia and Florence euery one that followeth the standerd and is initiated entred into militarie profession doth presentlie of a yeoman become a gentleman e Bartol in lib. 1. de digâ—it ciâ— But in Fraunce as Bodinus reporteth gentrie is not gained by vndertaking seruice in warre but by continuing in the same if their issue or posteritie do also mannage armes their issue and posteritie are reputed gentlemen f Bodin lib. 3. de repub c. 8. But the Venetians doe measure gentrie and nobilitie by Senatorie state yet I take it to be after the maner of the auncient Romanes who did not accompt any Equitem Romanum which was not a Senators sonne yet manie meere soldiers were admitted of the Senate Which facilitie of the Romanes in bestowing dignities did afterwards turne to their great daunger and molestation for C. Marius was onely a soldier hauing spent his verie Consulships euen sixe Consulships in warres and the seauenth should not haue been vnlike to the rest if God had not preuented him by death and continuallie before that time hee was employed in warre either vnder Scipio the sonne of Paulus Aemilius or some other great Capitaine But this man being more in conuaie then counsell did more hurt then profite the Romane common weale So did Iulius Caesar so did M. Antonius though these later were somewhat more then meere souldiers But amongest the Aegyptians none could be souldiers but the Calasyri and many yeares after when it was vnder the dominion of the Sultanes the Memmeluci who therefore had speciall immunities liberties graunted vnto them but a meere souldier amongest the auncient Romanes though he were of excellent desert yet was accompted but as a plebeian and not noble which may easily appear by the speech of L. Siccius Dentalus madein the Senate house who boasted that he had serued in warre fortie yeares for his countrie that he had fought in an hundred and twentie battailes that he had receiued fortie and fiue woundes and twelue of them in one day and all of them aduerso corpore encountring the enemie face to face that he had purchased fourteene cibicall crownes three obsidionall foure-score and three golden chaynes a hundred and three-score golden bracelets ten goodlie speares fiue and twenty faire and costlie arming saddles g Dionys Halycar Yet this man hauing no other meanes to attaine to gentrie and nobilitie was accompted of them in the number of ignoble persons h Salust in bel Iugurth loq de Mar. Augustus Caesar a notable wise Emperour did supplie the want of Senators with rich men i Tranquil in August though not verie wise because he perceiued that the notable order of Senators which stoode much vpon cost and expence wherupon I am perswaded these wordes issued from him Duas habeo superbas filias Iuliam et Rempub. k Macrob. in Saturnal would otherwise
the glorie of God for though God moued them to doe well and some of them confessed Est deus in nobis agitāte calescimus illo yet before the end he left them because vainglory was their end and so they did their suite at a wrong court But now let vs particularly examine the obseruation as wel of the gentiles and Christians of these commaundements and ordinaunces The obedience that children ought to giue to their parents hath bene straitly commaunded by God and seuerely enioyned by Emperours a Exod. 20. v. 12. Deut. 5. v. 16. Acto 4. 19. Pompon l. 2. ff de iust et iur pius Imperat l. 1. C. de alen lib. and Homer diuinely according vnto the wordes of this precept doeth threaten that the life of disobedient children shall not be long b Homer in Iliad Plato hath an excellent speech to this purpose He which mainteineth his parents whē they are old in his house let him thinke that his house shal be neuer be possessed of the like ornament c Plat. lib. 11. de legi therefore it hath beene ordeined of God that children which were disobedient to their parents should be punished of the magistrate d Deuter. 21. v 18. his iudgement is thus set downe If any man haue begotten a stubborne and froward child which will not obey his father mother being corrected continueth still in disobedience let thē bring him to the elders of the citie and to the iudgement gate and the father shall say to the people this our sonne is stubborne and despiseth our admonitions and giueth himselfe to riot and incontinencie then the people shall stone him and he shall dye that the euill may bee taken from the middest of you Yea euen they which had only curst their parents were adiudged to death In former time hee that had slain his father or mother grandfather or grādmother was first bet with rods vntil the blud trickled downe then being thrust into a sacke together with a dogge a cocke and a snake hee was throwne into the bottome of the sea and by Pompeis law it was prouided that if the sea bee not neare he should be throwne out to deuouring beasts At Rome this fact was not heard of till L. Ostius did slay his father which happened after Hannibals warre e Plut. in Rom. l. 1. Et l. paena ff ad l. Pomp. de parricid Cicer in oration pro Rosc Amerin et in orator And Plato his law is that if a man in his furie or madnes do kill his father or mother and they before their death do pardon him the fault yet he is to be adiudged guilty of slaughter of impietie of sacriledge f Pl. lib. 11. de legi But what shall wee say of Orestes who did slay his mother because she did slay his father though there bee diuers opinions which do acquite Orestes as namely the opinions of Cicero g Cicer. in Milon Paterculus h Paterc lib. 1. and Quintilian i Quintil. lib. 5. c. 11. yet against them are Socrates k Plat. in 2. Alcibiad Diodorus l Diodor. l. 5. Aristotle m Aristot l. 2. Rhetoric c. 5. but why shold we depend vpon the iudgement of man in this case when it is manifest that the iudgement of God was in the highest degree if we respect the paines of this life onely executed vpon Orestes for he was plagued with madnesse a terrible signe of the reuenging wrath of God And murder hath beene so much detested that a beast which had slaine a man was commanded to bee stoned and that his flesh should not bee eaten n Exod. 21. v. 28. and by the ciuill law if a man be bitten of an other mans dog the owner of the dog is chargeable vnto him that is hurt because hee did not tie vp his dogge or musle him o l. 1. §. sed etsi canis ff si quadrup pauper fecer therefore Solon deuised a pretie punishment of such wronges namely that the dogge who had by byting hurt any man should haue a clogge of foure foote tyed to his necke and so should be yeelded vp into the hands of him whom he had hurt which Plutarch calleth bellum commentum ad securitatem p Plut. in Solon They which had killed a man in Greece did vsually flie to forreigne princes and there if hee who was slaine was a stranger they vsed to sitte at the threshold of the dore with his head couered with the sword wherewith he was slaine if hee were one of the same countrie the sword was brokē in two and the point of the sword was helde vnder one arme the hilt vnder the other q Sophocl a lamentable sight no doubt but done to this purpose that they which had slaine the men might by these forraine princes haue expiatiō of their fault which expiation was fully as bad or rather worse thē the murther for the princes who were to expiate thē did by inchantments inuocate and make suite to the wicked spirites that they may absolue them from the fault which is done by sprinkling them seauen times with water the predecessor of the Popes holiwater and to this feate seauen garments were therewith sprinckled then they kill a swine a fitte sacrifice for the deuill then they call vpon Iupiter Hospitall praying him that he wold not vexe with furie the party that had offended thus the absolution is worse then the offence and like to that of the merry Monke Absoluo te ab omnibus benefact is tuis peiorem te relinquo quà m accepi r Erasm in colloqu Then there are boughes spread along the houses that the deuill might tread soft Some of them washed themselues in the sea till they had almost drowned themselues murder is the forerunner of death and that foolish solemnitie Catullus glaunceth at Nec genitor Nimpharum abluat Oceanus Likewise Ouid Ah nimium faciles qui tristia crimina caedis Fulminea tolli posse putatis aqua after this manner Adrastus fled from Thebes to Tydeus Peleus fled to Patroclus when hee being but a boy had slaine Clesonynus a boy likewise Paris though he had stolne away Helena the wife of Menelaus yet when hee had slaine Antheus Antenors sonne whom he loued he fled to Menelaus a great iudgement of God his very enemie for expiation like to that iudgement of the almighty executed vpon Cosby an Irish-man who when he had slaine the towardly Captaine the Lord Burgh sought by-pathes and had thought to haue fled from the slaine body as farre as the Sunne is from the Moon but the Lord put a ring into his snowt and brought him backe againe almost as neere to the murthered Lord as the grasse is to the earth a fit admonition for these times wherein homo sacra res per iocum occiditur ſ Senec. lib. de ir In Egipt and Babilon he which had
late king of Spaine did to certaine Flemings which came to him as embassadors though they were neuer vnder his legeance or subiection their estates hauing bin free frō time immemorial as al histories of account do with clear voice pronoūce And Dionisius did imprisō the embassadors of the Sir acusanes because that city hauing driuen the tirant into his tower did set themselues at libertie e Plutarch in Dio. but Buchanan seemeth to erre which compareth two iust princes nay such as himself confesseth to be most iust f Buch. in lib. de re Scot. namely Hiero of Siracuse and Cosimo Medices Duke of Tuscana to two great theeues which did iustly diuide the pray did rule well though they came vniustly by it for how was Cosimo a robber if hee did vndertake the gouernement of that citie which did willingly offer vnto him the gouernment he shold perhaps haue suffered it to be subdued by some forreigne Lord or els haue left the regiment to others who would haue hazarded that ship vpon rocks and tempests whereas that excellent man knew well how to keepe the ship in the hauen but it seemeth that the law of armes is not bee kept to an vsurper and therefore Constance the Emperour could not iustly bee reproued if hee had punished these embassadors which Iulianus being consorted with him in the Empire by the French armie did send vnto him as he threatned hee would for both Iulianus and the armie were rebels g Amm. li. 21 But this is to bee vnderstood onely of such rebelles and such vsurpers as haue beene sometimes in subiection and vnder the leigeance of some absolute Monarch for they which doe onely breake league or friendship or ancient entercourse are not to bee excluded from the right and benefit of embassage h Alber. Gentil l. 2. de legat c. 7. for how often did the Volscians Latines Spaniards and many others reuolt from the Romanes and yet sent embassadors to them without hurt or fear of danger i Liui. lib. 5. 6. 29. c. Appi. lib. 1 de bel ciuil they may lawfully claime the right of embassage because they had and enioyed it before their reuolt but otherwise it is of subiects because they had it not so neither is it reason that they should gaine any new right or haue any aduauntage by their crime or offence The thirteenth Chapter That by the law and practise of nations warre is not to be maintained against infidels onely because they are infidels and that princes in their realmes may inflict punishment for straunge worships IF religion be of that nature that no man ought against his will to bee cōpelled vnto it by force of armes and that be tearmed a new and vnusuall preaching which exacteth faith by blowes then it followeth that such war is not iust a c. 35. 23. q. 5. c. 1. 3. disti 45. c. 3. de babt It is a point of irreligiousnes saith Tertullian to forbidde the opinion conceiued of the deitie and that it shall not bee lawfull for mee to worship whom I would but I shall bee constrained to worship whom I would not b Tertul. Apolog. et ad Scap. Faith is to be perswaded not to be enforced saith Barnard c Barn cantic ser 66. And Hilarie saith that by a newe example men are compelled by armes to beleeue d Erasm pref Hill So Lactantius saith that religion must be established by words not by swords f Lactant. 5. Iustin 20. 21. so Arnobius saith to his aduersaries Because ye can do much by force and weapons doe ye therefore thinke that ye do exceed vs in the knowledge of the truth g Arnob. adu ge 4. Ye haue heard authors now heare reasons That which is against the nature of a thing cannot tend to the effecting or preseruing of that thing but to the destroying of it That which standeth by his owne strength is not to bee vpheld by other supporters This opinion of not mouing armes for religion Franciscus a Victoria a verie learned man affirmeth h Victor relect to bee allowed of all writers none exempted therefore he saith that this could bee no iust cause to his countrimen the Spaniardes to maintaine warre against the Indians And Didacus a Couarruuia a Spaniard likewise a learned Lawier i Couarer reg pre §. 10. doth vouch many Canonistes and Diuines which doe teach the same Baldus also affirmeth that it is not lawful to wage battell against infidels liuing with vs in peace and not being iniurious vnto vs k Bald. lib. 5. de iustir yet Didacus saith that Aquinas is of a contrarie opinion l Couar vbi supr And the fathers of the councell of Toletum did make a decree touching the afflicting of hereticks by warre which is recorded in the cannon lawe m c. 3. de her c. 5. dist 45. And Barnard mouing Lewis king of Fraunce against Asia saith Can any war seeme more iust to the then that which is most holy The Lacedemonians also amongst other obiections made this a cause of their warre amongst the Athenians and said that they were prophaners of religion and the Athenians did on the contrarie parte charge the Lacedemonians with this that they did drawe them that yeelded themselues out of the temples and killed them n Thuc. lib. 1. But surely such pretenses are but colorus of auarice and crueltie for there is no religion so barbarous which moueth vs to slay men of a contrarie religion o Na. Co. li. 1. King Ferdinand entitled the Catholike did couer all his dishonest desires with the vaile of religion as Guicchiardine noteth p Guicc li. 12. And Charles the Emperor the nephew of Ferdinād did not garnish his ambitious enterprises with any other colour q Iou. lib. 30. But the warres of the French and other people of Europe which did relieue the Christians vexed of the Turkes and reuenging the iniuries done to Christ haue beene liked allowed of r Couar reg pecc §. co but that is an other question of defensiue war which without all doubt is lawful if it be maintained by them that may vndertake the defence lawfully But now the question is whether only by pretence of religion war may be vndertaken and this hath bin denied and the reason is ſ Alber. Gentill lib. 1. de iur bel c. 9. for that the cause of religiō is not betwixt man man but betwixt man and God neither is the right of any man preiudiced for a diuers religion because the bond of religion is onely to God it is a law betwixt God and man But here wee doe not speake of such which are altogether voide of religion and liue rather the life of beastes then of men For they like pirates the common and dayly enemies of all men are to be pursued by war to be brought by armes into compasse and to the order of ciuill