¶ The fyrst dialogue in Englisshe / with newe additions ✚ Here after foloweth the fyrste Dyaloge in Englysshe / betwyxte a Doctour of Diuinite / and a StudeÌ„t in the lawes of EnglaÌ„de of the groundes of the sayde Lawes / of conseyence / newly corrected eft sones Enprynted with new additions ☞ The Introduccion A Doctoure of diuinitie that was of greate acquayntaunce / familiaritie with a Student in the lawes of Englande sayde thus vnto hym / I haue had great desyre of longe tyme to knowe where vpoÌ„ the law of Englande is grounded / but bycause moche parte of the lawe of EnglaÌ„de is written in the frenche tonge Therfore I can nat through myne owne studye atteygne to the knowlege therof for in that tonge I am nothynge experte And bycause I haue always founde the a faythfull freÌ„de to me in all my busynes Therfore I am bolde to come to the before any other to knowe thy mynde what be the very grouÌ„des of the lawe of Englande as thou thynkest ¶ Student that wolde aske a great leasure / it is also aboue my connynge to do it Neuerthelesse that thou shalt nat thynke that I wolde wilfully refuse to fulfyll thy desire I shall with good wyll do that in me is to satisfie thy mynde / but I pray the that thou wylte fyrste shewe me somwhat of other lawes that pertayne moste to this matter that Doctoures treate of howe lawes haue begonne And then I wyll gladly shewe the as me tynketh what be the grouÌ„des of the lawe of EnglaÌ„de ¶ Doctoure I wyll with good wyl do as thou sayste wherfore thou shalt vnderstaÌ„de that Doctours treate of foure lawes / the whiche as me semeth pertayne moste to this mater The fyrste is the law eternall The secoÌ„de is the lawe of nature of reasonable creature / the whiche as I haue harde saye is called by them that be lerned in the lawe of EnglaÌ„de the law of reason The thyrde is the law of god The fourth is the lawe of man And therfore I wyll fyrste treate of the law eternall ☞ Of the lawe eternall The fyrste Chapitre DOctoure lyke as there is in euery artificer a reason of suche thynges as are to be made by his crafte / so lyke â—â—se it behoueth that in euery gouernour there be a reason afore syght in the gouernour of suche thynges as shal be ordered done by hym to theÌ„ that he hath the gouernauÌ„ce of And for as moche as almightye god is the creatour maker of all creatures / to the which he is compared as a workemaÌ„ to his workes And is also the gouernour of all dedes and mouynges that be founde in any creature Therfore as the reason of the wysdome of god in asmoche as creatures be creat by hym hath the reason foresight of all craftes warkes that haue ben or shal be / so the reason of the wysdome of god mouynge all thynges by hym made to a good ende / opteyneth the name reason of a law / that is called the lawe eternal And this law eternall is called the fyrste lawe / it is well called the fyrste / for it was before all other lawes And all other lawes be deriuied of it / whervpon saynt Augustin sayth in his fyrste boke of fre arbytrement that in temporall lawes nothynge is rightwyse ne lawfull / but that the people haue deriuied to them out of the lawe eternall wherfore euery man hath right tytle to haue that he hath rightwysely of the rightwyse Iugement of the fyrste reason / whiche is the lawe eternall ¶ Student but howe may this lawe eternall be knowen / for as the Apostle writtet in the .v. chapitre of his fyrste Epistle to the Corynthies QuesuÌ„t dernemo scit nisi spiritus dei That is to say no man knoweth what is in god / but the spirite of god / wherfore it semeth that he openeth his mouth in to heueÌ„ that attempteth to know it ¶ Doctoure this lawe eternall no man may knowe as it is in it selfe / but onely blessed soules that se god face to face / but almyghty god of his goodnes sheweth of it as moche to hê creatures as is necessary for them / for els god shulde bynde his creatures to a thyng inpossible whiche may in no wyse be thoughte in hym Therfore it is to vnderstaÌ„de that thre maner of wayes almightye god maketh this lawe eternall knowen to his creatures reasonable Fyrste by the light of naturall reason Seconde by heueÌ„ly reuelacion Thyrdly by the ordre of a prince or of any other secoÌ„darie gouernour that hath power to bynde his subgectes to a lawe And whan the lawe eternall or the wyll of god is knowen to his creatures resonable by the lighte of natural vnderstandynge / or by the light of naturall reason / then it is called the lawe of reason And when it is shewed by heuenly reuelacion in suche maner as hereafter shall appere / then it is called the lawe of god And when it is shewed vnto hym by the ordre of a prynce / or of any other secundarye gouernoure that hathe power to set a lawe vpon his subgectes / then it is called the lawe of maÌ„ though originallie it be made of god / for lawes made by man / that hath receyued therto power of god be made by god Therfore the sayd thre lawes that is to saye / the lawe of reason / the lawe of god / the lawe of man the whiche haue seuerall names after the maner as they be shewed to man / be called in god one lawe eternall And this is the lawe of whome it is written ProuerbioruÌ„ octauo / where it is sayd ♣ Perme reges regnant et leguÌ„ conditores iusta descernuÌ„t that is to saye by me kynges reygne / makers of lawes descerne the trouth And this sufficeth for this tyme of the lawe eternall ☞ Of the lawe of reason / the whiche by Doctoures / is called the law of nature of reasonable creature ⸫ The .ii. Chapitre DOctoure Fyrste it is to be vnderstaÌ„de / that the lawe of nature maye be considered in two maners / that is to say generally specially / when it is coÌ„sidered generally / then it is referred to al creatures / aswel resonable as vnresonable / for all vnresonable creatures lyue vnder a certayne reule to them gyuen by nature / necessarie for them to the conseruacion of theyr beyng / but of this lawe it is nat our intent to treate at this tyme. The lawe of nature specially considered whiche is also called the lawe of reason pertaineth onely to creatures resonable that is maÌ„ / which is create to the ymage of god And this lawe ought to be kept aswell amonge Iewes gentels / as among cristen meÌ„ And this lawe is alway good rightwyse styryng enclynyng a man to good / abhorrynge euyll as to the orderynge of the dedes of maÌ„ it is preferred
neuerthiles bycause it hath ben suffered to the coÌ„trary that in many places tithe hath ben payd therof I passe it ouer but where tithe hath nat be payd of wood vnder .xx. yere I thinke none ought to be payd at this day in law nor conscience but admitte it that the sayd constitucioÌ„ taketh effecte for paymeÌ„t of tithe wood vnder .xx. yere as of a predial tithe / yet I can nat se how the tithe therof shuld be payde by the possessoure of the wode if he sell theÌ„ but that it shuld be payd rather by hym that hath the trees / for the constitucion is that the tythe shal be payde as a reall or a predial tithe / that is the .x. parte of the same trees as it is of corne / if a man bye corne vpon the grouÌ„de the byer shall pay the tythe nat the seller so it shulde seme to be here what the constitucion mente to decree the contrari in tythe wode I can nat tell oneles the meanyng were to enduce the owners to pay tyths of great trees whan they fell theÌ„ to theyr owne vse whiche me thynketh shulde be very harde to proue to stande with reason though the sayd statute had neuer be made as I haue sayd before And ferthermore I wolde here vnder correccion moue one thynge that is this that as it semeth they that were at the makynge of the sayde constitucion that knewe the sayd prescripcion dyd nat folow the directe order of charite therin so perfitely as they might haue done / for whan they made the sayd constitucion prouinciall directely agaiÌ„st the said pÌ„scripcioÌ„ / they set law agaiÌ„st custome / power agaiÌ„st power in maner the spiritualtie agaiÌ„st the teÌ„poraltie / whereby they might well knowe that greate variauÌ„ce sute shuld folowe / therfore if they had clerely sene that the sayde prescripcion had ben agaynste conscience they shulde fyrste haue moued the kynge his counsayle the nobles of the realme to haue assented to the reformacion of that pÌ„scripcion nat to make a lawe as it were by authorite power agaynst the prescripcion than to threte the people make theÌ„ byleue that they all were accursed that kept the sayd prescripcioÌ„ or that mayntayne it / it semeth to stande hardely with conscieÌ„ce to reporte so many to staÌ„de accursed for folowinge of the sayd statute of the sayd pÌ„scripcion as there do yet to do no more than hath be done to bringe them out of it ¶ Doctour Me thinketh that it is nat coÌ„uenieÌ„t that lay meÌ„ shuld argue the lawes the decrees or constitucioÌ„s of the church therfore it were better for them to gyue credence to spirituall rulers that haue cure of theyr soules than to truste to theyr owne opinions / if they wolde do so than suche matters wolde moche the more rather cesse than they will do by suche reasoningê ¶ StudeÌ„t In that that beloÌ„geth to the articles of the faythe I thynke the people be bounde to byleue the church / for the churche gadered to gyder in the holy ghoste can nat erre in suche thynges as belonge to the catholike fayth but where the churche maketh any lawes wherby the goodes or possessions of the people maye be bounde / or by this occasion or that may be taken fro them there the people may lawfully reason whether the lawes bideth theÌ„ or nat for in suche lawes the churche may erre be deceyued deceyue other eyther for singularite or for couetyce for some other cause / for that consideracion it perteyneth moste to theÌ„ that be lerned in the lawe of the realme to knowe suche lawes of the churche as trete of the orderynge of landes or goodes to se whether they may stande with the lawes of the realme or nat therfore it is necessarie for them to know the lawes of the churche that treate of dismes of executours of testamentes of legacies bastardye matrimonie diuers other wherin they be bounde to knowe whaÌ„ the lawe of the church must be folowed whaÌ„ the law of the realme / wherof bycause it is nat our purpose to treate I leue to speke any more at this tyme / and wyll resorte agayne to speke of tythes / wherin some meÌ„ say that of tynne / cole / leade no tythe shulde be payde whan they be solde by the owne of the grounde bycause it is parte of the enheritaunce it is more rather a distruccion of the enheritaunce than an encreace / therfore they say that if a maÌ„ take a tyn werke gyue the lorde the tenthe dysshe accordynge to the custome that the lord shall pay no tythe of that tenth dysshe neyther prediall nor personall but if the other that taketh the werke haue geyns aduauntage by the werke it semeth that it were nat agaynste reason that he shuld pay a personall tythe of his geyns the charges deducte ¶ Doctoure I pray the shewe me fyrst what thou takest for a personall tythe and vpon what grouÌ„d personal tithes be payd as thou thinkest so that one of vs mystake nat a nother theriÌ„ ¶ StudeÌ„t I will with good wyll therfore thou shalt vnderstaÌ„de that as I take it personall tythes be nat payde for any increase of the grounde / but for suche ê“fite as cometh by the labour or industrie of the person / as by byeng sellynge suche other / suche personall tythes as I take it muste be ordered after the custome the churche hath nat vsed to leuye those tythes by compulsion but by conscience of the parties / neuertheles Raymond sayth that it is good to pay personal tythes or with the assente of the person to distribute them to pore meÌ„ / or els to pay a certayn porcioÌ„ for the hole / but as InnoceÌ„ sayth / where the custome is that they shuld be payde the people be bounde to pay theÌ„ as well as predialles / the expences deducte / howe be it in the churche of EnglaÌ„de they vse to sue for suche personall tythes as wel as for predialles that is by reason of a coÌ„stitucioÌ„ prouinciall that was made by Robert wynchelsey late archebisshope of CauÌ„torbury / by the whiche it was ordeyned that personall tythes shuld be payd of craftes marchandyse / of the lucre of byeng sellinge / in lykewise of carpeÌ„ters / smythes / weuers / masons all other that worke for hyre that they shall pay tythes of theyr hyre except they will gyue any thyng certayne to the vse or to the light of the churche if it so please the person / in another place the sayd archebisshoppe saythe that of the pawnage of woodes suche other thiÌ„ges cÌ„ of fysshynges / trees / bees / downes / of diuers other thinges there remembred / of craftes / of byenge sellynge of the profites of diuers other thinges there receyted / euery
strayte waye thereto Therfore thou shalte vnderstande that the lawe of Englande is grounded vpon syxe pryncipall grouÌ„des Fyrste it is grounded on the lawe of reason Seconde on the lawe of god Thyrdly on diuers generall customes of the realme Fourthly of diuers principles that be called maxymes Fyftly on diuers ê‘ticuler customes Sixtly on diuers statutes made in parliamentes by the kyng by the coÌ„mon couÌ„cell of the realme / of which grouÌ„des I shal speke by ordre as they be reherced before / fyrste of the lawe of reason ☞ Of the fyrste grouÌ„de of the lawe of Englande The .v. Chapitre STudent The fyrste grounde of the lawe of Englande is the lawe of reason / wherof thou haste treated before in the seconde chapitre / the whiche is kept in this realme as it is in al other realmes as of necessitie it muste nedes be as thou hast sayd before ¶ Doctour But I wolde knowe what is called the lawe of nature after the lawes of EnglaÌ„de ¶ Student It is nat vsed amonge them that be lerned in the lawes of Englande to reason what thynge is commaunded or prohibet by the lawe of nature what nat but all the resonynge in that behalfe is vndre thê maner as when any thyng is grounded vpon the lawe of nature they say that reason wyll that suche a thynge be done / if it be ê“hibite by the lawe of nature They say it is agaynst reason or that reason wil nat suffre that it be done ¶ Doctoure Then I praye the shewe me what they that be lerned in the lawes of the realme holde to be coÌ„mauÌ„ded or prohibite by the lawe of nature vndre suche termes after suche maner as is vsed amongest theÌ„ that be lerned in the sayde lawes ¶ Student There be put by them that be lerned iÌ„ the lawes of EnglaÌ„de two degrees of the law of reason / that is to say / the lawe of reasoÌ„ primarie / the lawe of reason secundarie by the lawe of reason primarie be ê“hibite in the lawes of Englande murther that is the deth of hym that is InnoceÌ„t / periurie / disceyte / brekynge of the peace many other lyke And by the same law also it is lawfull for a maÌ„ to defende hiÌ„ selfe agaiÌ„ste an vniuste power so he kepe dewe circumstaunce And also if any promyse be made by man as to the body it is by the law of reason voyde in the lawes of Englande The other is called the lawe of secuÌ„darie reason / the whiche is deuided in to two braunches / that is to saye in to the lawe of a secundarie reason generall / and in to a lawe of secundarie reason perticuler The lawe of a secundarie reason generall is grouÌ„ded deriuied of that general law or generall custome of propretie whereby goodes mouable vnmouable be brought in to a certayne propretie / so that euery man may knowe his owne thynge And by this brauÌ„che be prohibited in the lawê of Englande disseasons / trespasse in landes goodê rescues thefte vnlawfull with holdynge of another maÌ„nes goodes and suche other And by the same lawe it is a grouÌ„de in the lawes of Englande that satisfaccion muste be made for a trespasse / that restitucioÌ„ muste be made of suche goodes as one man hath that belonge to another man / that dettes muste by payde couenauÌ„tes fulfulled suche other And because disseasons / trespasse in landes and goodes thefte suche other had nat ben knowen / if the lawe of propretie had nat ben ordeyned Therfore all thynges that be diriuied by reason out of the sayde law of propretie / be called the lawe of reason secundarie generall / for that lawe of propretie is generally kept in al our couÌ„tres The lawe of reason secundarie perticuler is that lawe that is deriuied vpon diuers customes generall perticuler of diuers maximes statutes ordeyned in this realme And it is called the law of reason secuÌ„darie perticuler because that reason iÌ„ that case is deriuied of suche a law that is onely holden for law in this realme / in none other realme ♣ Addition ⧠Doctoure I pray the shewe me some speciall case of suche law of reason secuÌ„darie perticuler for an exaÌ„ple ¶ Student There is a law iÌ„ EnglaÌ„de / which is a law of custome that if a man take a distresse lawfully that he shall put it in a pounde ouerte there to remayne tyll he be satisfied of that he distrayned for And then therevpon maye be asked this question that if the beastes dye in pouÌ„de for lacke of meat at whose peryl dye they / whether dye they at the peryll of hym that distreyned or of hym that oweth the beastes ¶ Doctoure If the law be as thou sayste than a maÌ„ for a iuste cause taketh a distres putteth it in pounde ouerte no lawe compelleth hym that distreyneth to gyue theÌ„ meate / then it semeth of reason that if the distres dye in pounde for lacke of meate / that it dyed at the peryll of hym that oweth the beastes nat of hym that distrayned / for iÌ„ hym that distreyned there can be assigned no defaute / but in the other may be assigned a defaute / because the rente was vnpayde ¶ Student Thou haste gyuen a trewe Iugement who hath taughte the to do so / but reason diriuied of the sayd generall custome And the lawe is so full of suche secuÌ„darie reasons diriuied out of the generall customes maximes of the realme that some men haue affermed that all the lawe of the realme is the law of reasoÌ„ but that caÌ„ nat be ê“ued as me semeth as I haue partly shewed before more fully wyll shewe after And it is nat moche vsed in the lawes of Englande to reason what lawe is grouÌ„ded vpon the law of the fyrst reason primary / or of the law of reason secuÌ„darie / for they be moste coÌ„moÌ„ly openly knoweÌ„ of them selfe / but for the knowlege of the lawe of reason secuÌ„darie is greater difficultie / therfore therin dependeth moche the maner forme of argumeÌ„tes iÌ„ the lawes of EnglaÌ„de And it is to be noted that all the deriuieÌ„ge of reason iÌ„ the lawes of EnglaÌ„de procedeth of the fyrste principles of the lawe or of some thynge that is deriuied of theÌ„ And therfore no man may right wisely Iuge ne grouÌ„dly reason iÌ„ the lawes of Englande if he be ygnoraut in the fyrste principles Also all byrdes / fowles / wylde beastes as beastes of forestes warren suche other be excepted by the lawes of Englande out of the sayd generall lawe custome of ê“pretie For by the lawes of the realme no propretie maye be of them in any person oneles they be tame Neuerthelesse the egges of Hawkes / heroÌ„s / or suche other as buylde in the grouÌ„de of any person / be adiuged by the sayde lawes to be longe to hym that oweth the grounde ☞ Of the .ii. grounde of the
lawe of Englande The .vi. Chapitre STudent The secoÌ„de grounde of the lawe of Englande is the lawe of god therfore for punisshement of them that offended agaynst the law of god / it is enquered in many courtes in this realme / if any holde any opynions secretely or in any other maner agaynst the trewe catholicall faythe And also if any generall custome were directly agaynste the lawe of god / or if any statute were made directly agaynst it / as if it were ordayned that no almesse shulde be gyuen for no necessitie that custome statute were voyde Neuer thelesse the statute made in the .xxiii. yere of kyng Edwarde the .iii. wherby it is ordayned that no man vnder payne of ImprysonemeÌ„t shall gyue any almesse to any valyaunt beggers that may well laboure that they may so be compelled to laboure for theyr lyuynge is a good statute / for it obserueth the inteÌ„t of the law of god And also by auctoritie of this lawe there is a grounde in the lawes of Englande / that he that is accursed shall maynteyne no accion in the kynges courte / except it be in very fewe cases so that the same excoÌ„municacion be certified before the kynges Iustices in suche maner as the lawe of the realme hath appoynted And by the auctoritie also of this grounde / the lawe of Englande amitteth the spirituell IurisdiccioÌ„ of dysmes and offerynges And of all other thynges that of righte belonge vnto it And receyueth also all lawes of the Churche dewly made and that excede nat the power of them that made them In so moche that in many cases it behoueth the kinges Iustices to iuge after the lawê of the Churche ¶ Doctoure Howe may that be that the kynges Iustices shulde iuge in the kynges courtes after the lawe of the Churche / for it semeth that the Churche shuld rather gyue iugemente in suche thynges as it may make lawê of theÌ„ the kyngê Iusticê ¶ StudeÌ„t That may be done in many cases / wherof I shall for an exaÌ„ple put this case If a writ of right of warde be brought of the bodye c. And the tenauÌ„t confessyng the tenour and the noÌ„age of the InfaÌ„t / sayth that the InfaÌ„t was maryed in his auncesters dayes cÌ„ whervpon .xii. men besworne which gyue this verdyt / that the InfaÌ„te was maryed in the lyfe of his auncestour And that the woman in the lyfe of his auncestour sued a deuorce whervpon sentence was gyuen that they shulde be deuorced And that the heyre appeled whiche hangeth yet vndiscussed prayenge the ayde of the Iustice to knowe whether the Infante in this case shal be sayd maryed or nat In this case if the lawe of the Churche be that the sayde sentence of deuorce staÌ„deth in his strength vertue vntyll it be adnulled vpoÌ„ the said appele Than the Infante at the deth of his auncestoure was vnmaryed because the fyrste maryage was adnulled by that deuorce And if the lawe of the Churche be that the sentence of that deuorce standeth nat in effecte tyll it be affermed vpon the sayde appele / then is the Infante yet maryed / so that the value of his maryage caÌ„ nat beloÌ„ge vnto the lorde And therfore in this case IugemeÌ„t condicionell shal be gyuen cÌ„ And in lykewyse the kynges Iustice in many other cases shall Iuge after the lawe of the Churche lyke as the spirituell Iuges muste in many cases forme theyr Iugement after the kynges lawes ¶ Doctoure Howe may that be that the spirituel Iuges shulde iuge after the king lawes I pray the shewe me some certayn case therof ¶ StudeÌ„t Though it be somwhat a digressioÌ„ fro our fyrst purpose / yet I wyll nat with saye thy desire / but wyll with good wyll put the a case or two therof / that thou mayste the better perceyue what I meane If A. B. haue goodes ioyntly / A. by his laste wyll byqueteth his porcion therin to C. and maketh the sayde B. his executour dyed / C. asketh the execucion of this wyll in the spirituell courte In this case the Iuges there be bounde to Iuge that wyll to be voyde because it is voyde by the lawê of the realme And in likewyse if a maÌ„ be outlawed / aft by his wyll bequeteth certayn goodes to IohnÌ„ at stile / make his executours dye the kynge seaseth the goodes after gyueth theÌ„ agayne to the executours / after IohnÌ„ at style suyth a sitacion oute of the spirituell courte agaynste the executours to haue execucion of the wyll / in this case the Iuges of the spirituell court must iuge the wyll to be voyde as the lawe of the realme is that it is And yet there is no suche lawe of forfayture of goodes by out lagarie in the spirituell lawe ☞ Of the thyrde grounde of the lawe of Englande The .vii. Chapitre STudent The thyrde grounde of the lawe of Englande standeth vpon diuerse generall customes of olde tyme vsed through all the realme whiche haue ben accepted and approued by our soueraygne lorde the kynge and his progenitours and all theyr subgectes And by cause the sayde customes be neyther agaynst the lawe of god / nor the lawe of reason / haue ben alwaye taken to be good and necessarie for the coÌ„mon welth of al the real me Therfore they haue optayned the streÌ„ghte of a lawe / in so moche that he that doth agaynste them dothe agaynste Iustice And these be the customes that proprely be called the common law And it shall alway be determined by the Iustices whether there be any suche generall custome or nat / and nat by xii men And of these generall customes and of certayne principles that be called maximes whiche also take effecte by the olde custome of the real me / as shall appere in the Chapitre nexte folowynge dependeth moste parte of the lawe of this realme And therfore oure soueraygne lorde the kynge at his coronacion amonge other thynges taketh a solempne o the / that he shall cause all the customes of hys realme faythfully to be obserued ¶ Doctoure I praye the shewe me some of these generall customes ¶ Student I wyll with good wyll / and fyrst I shall shewe the how the custome of the realme is the very grounde of diuers courtes in the realme / that is to say of the ChauÌ„cerie of the kyngea benche / of the coÌ„mon place the Escheker / the whiche be courtes of recorde because none may sit as Iuge iÌ„ those courtes by by the kiÌ„ges letters pateÌ„tes And these courtê haue diuers auctorites wherof it is nat to treate at thê tyme. Other courtê there be also only grouÌ„ded by the custome of the realme that be of moche lesse auctorite theÌ„ the courtê before reherced / as iÌ„ euery shyre withiÌ„ the realme there is a court that is called the CouÌ„tye / another that is called the Shyryftes torne / iÌ„ euery maner is a courte that
helde by .xii. d. rente the heyre in the yere folowynge shall paye that .xii. d. for his reÌ„t / other .xii. d for his relyef And that relyefe he muste paye though he be within age at the deth of his auncestre ⧠Also there is an olde law custome in this realme that a freholde by way of feffement gyfte or lease passeth nat without lyuery of season be made vpoÌ„ the laÌ„de according though a dede of feffemeÌ„t be therof made deliuered but by way of surrendre particion eschauÌ„ge a freholde maye passe without liuery ⧠Also if a maÌ„ make a wyll of laÌ„de wherof his is seased iÌ„ his demesne as of fee / that wyll is voyde / but if it had stande in feffes handes it had ben good And also in London suche a wyll is good by the custome of the cytie if it be inrowled ⧠Also a lease for terme of yeres is but a chatel in the lawe / therfore it may passe without any liuery of season / but otherwise it is of a state for terme of lyfe for that is a freholde in the law / therfore lyuerey muste be made therof or els the freholde passeth nat ⧠Also by the olde custome of the realme a man may distreyne for a rent seruice of coÌ„mon right And also for a rent reserued vpoÌ„ a gifte in tayle / a lease terme of lyfe / of yeres at wyll / in suche case the lorde may distreyne the tenauntes of beestes as soon as they come vpoÌ„ the grouÌ„de / but the beastê of strauÌ„gers that come iÌ„ but by maner of an escape / he may nat distreyne tyll they haue beÌ„ leuaÌ„t couchaÌ„t vpoÌ„ the grouÌ„de but for dette vpoÌ„ an obligacioÌ„ nor vpoÌ„ a contracte / nor for accompte ne yet for arerages of accoÌ„pte / nor for no maner of trespasse / reparacions / nor suche other no man may distreyne ⧠Also by the olde law custome of the realme all yssues that shal be ioyned betwixte partie partie in any court of recorde within the realme except a fewe wherof it nedeth nat to treate at thê tyme / must be tryed by .xii. fre lawfull meÌ„ of the visne that be nat of affinitie to none of the parties And in other courtes that be nat of recorde / as in the countye / court baron / hundred suche other lyke / they shal be tryed by the other of the ê“tyes nat other wyse oneles the partyes assente that it shal be tryed by the homage And it is to be noted that lordes / Barons / all pyers of the realme be excepted out of suche trialles if they wyll / but if they wyll wylfully be sworne therin / some say it is no erroure And they may if they wyll haue a writte out of the Chauncerie directed to the Shyryfe coÌ„maundynge hym that he shal nat impanell them vpon no enqueste And of this that is saydbefore it appereth that the customes aforesayd nor other lyke vnto theÌ„ / wherof be very many in the lawes of Englande can nat be proued to haue the strenght of a law onely by reasoÌ„ for how may it be proued by reason that the eldest sone shall onely enherite his father the yoÌ„ger to haue no parte / or that the husbaÌ„de shall haue the hole laÌ„de for terme of his lyfe as tenaunt by the courtesye in suche maner as before appereth And that the wyfe shall haue onely the thyrde parte in the name of her dower / that the husbande shall haue all the goodes of his wyfe as his owne And that if he dye lyuynge the wyfe / that his executours shall haue the goodes / nat the wyfe All these suche other can nat be proued onely by reason that it shulde be so no otherwyse all though they be reasonable / that with the custome theriÌ„ vsed suffiseth in the law And a statute made agaynst suche generall customê ought to be obserued because they be nat merely the law of reason ⧠Also the law of ê“pretie is nat the law of reason / but a law of custome how be it that it is kept / is also right necessarie to be kept in all realmes amoÌ„ge all people And so it may be noÌ„bred amoÌ„ge the generall customes of the realme And it is to vnderstande that there is no statute that treateth of the begynnyng of the sayd customes ne why they shulde beholden for law And therfore after theÌ„ that be lerned in the lawes of the realme the olde custome of the realme is the onely sufficiente auctoritie to them in that behalfe And I pray the shewe me what doctours holde therin / that is to say whether a custome onely be sufficient auctoritie of any lawe ¶ Doctoure doctours holde that a law grouÌ„ded vpon a custome is the moste surest law / but this muste always vnderstaÌ„de therwith that such a custome is nother coÌ„trarie to the lawe of reason / nor to the law of god And now I pray the shewe me somwhat of the maxymes of the lawe of Englande wherof thou haste made mencioÌ„ before in the .iiii. chapitre ¶ StudeÌ„t I wyll with good wyll ☞ Of the .iiii. grounde of the lawe of Englande The .viii. Chapitre STudent The .iiii. grouÌ„de of the law of EnglaÌ„de standeth in diuers principles that be called in the lawe maximes / the which haue ben always takeÌ„ for law iÌ„ this realme / fo that it is nat lawfull for none that is lerned to denye them / for euery one of those maximes is sufficiente auctoritie to hym selfe And whiche is a maxime / whiche nat shall alway be determined by the Iuges / nat by .xii. men And it nedeth nat to assigne any reason / why they were fyrste receyued for maximes for it suffiseth that they be nat agaiÌ„st the law of reason nor the law of god / and that they haue alway be taken for lawe And suche maximes be nat onely holden for law / but also other cases lyke vnto theÌ„ all thynges that necessarily foloweth vpoÌ„ the same / ar to be reduced to lyke law And therfore moste coÌ„meÌ„ly there be assigned some reasons or coÌ„sideracion why suche maximes be resonable to the intente that other cases lyke may the more conueniently be applyed to them And they be of the same strength effect in the law as statutes be And though the generall custome of the realme be the strength warraunte of the sayd maximes as they be of the generall customes of the realme / yet because the sayd generall customes be in maner knowen throughe the realme as well to them that be vnlerned as lerned / may lightly be had knowen and that with lytell studye And the sayd maximes be onely knoweÌ„ in the kynges courtes or amoÌ„ge them that take great studie in the lawe of the realme / amonge fewe other persones Therfore they be set in this writtynge for seuerall groundes he that
the husbande and the wyfe as one persone in the lawe shall take onlye the one halfe the thyrde person the other half / but these cases be alway to be vnderstande where the sayde estates be made without ani recompence And for as moche as in this principall case / the intent of the feoffour is groundid agaynst the lawe that there is no recompence appoynted for the feffement me thynketh that the feffour hath neyther right to the lande by lawe nor conscience / for if he shulde haue it by conscience / that coÌ„science shulde be grounded vpon the lawe of reason that it can nat / for condicions be nat grouÌ„ded vpoÌ„ the lawe of reason / but vpoÌ„ the maxymes custome of the realme And therfore it might be ordeyned by statute / that al condicioÌ„s made vpoÌ„ lande shuld be voyd And whaÌ„ a condicioÌ„ is voyde by the maximes of the lawe / it is as fully voyde to euery intent as if it were made voyde by statute / so me thynketh that in this case the feffour hath no righte to the lande in law nor in conscience ¶ Doctoure I am content thy opinion stande tyll we shall haue hereafter a better leasure to speke ferther in this matter ☞ The .v. question of the Student The .xxv. Chapitre STudent If a fine with proclamacioÌ„ be leuyed accordynge to the statute no clayme made within .v. yeres cÌ„ whether is the righte of a straunger extincted thereby in conscience / as it is in the lawe ¶ Doctoure Vpon what consideracion was that statute made ¶ StudeÌ„t that the righte of landes and tenementes myghte be the more certaynly knowen and nat to be so vncertayne as they were byfore that statute ¶ Doctoure And whan any lawe of man is made for a coÌ„mon welthe / or for a good peace and quietnes of the people / or for any inconuenience or hurte to be saued from them / that lawe is good thoughe percase it extincte the right of a straunger and must be kept in the courte of conscience for as it is said before in the .iiii. chapitre By lawes rightewysely made by man it appereth who hath righte to the landes and goodes for what so euer a man hathe by suche a lawe he hath it rightewisely And what so euer he holdeth agaynste suche a lawe he holdeth vnrightwisely And ferthermore as it is sayde there all lawes made by man / whiche be nat contrarye to the lawe of god muste be obserued and kepte / and that in conscience And he that dispiseth them dispiseth god and that resisteth them resisteth god / also it is to be vnderstande that possessions / and the righte thereof be subiecte to the lawes / so that they therefore with a cause reasonable maye be translated and altered from one man to another by the acte of the lawe And of this consideracion that lawe is grounded that by a contracte made in feyres and markettes the propretye is altered excepte the propretye be to the kynge / so that the byer paye tolle / or do suche other thynges as is a customed there to be done vpon suche contractes / and that the byer knoweth nat the former propretye And in the lawe Ciuile there is a lyke lawe that if a man haue another mannes good with a title .iii. yere thynkynge that he hath righte to it he hath the very righte vnto the thynge and that was made for a lawe to the intente that the propretye and ryghte of thynges shulde nat be vncertayne / that variaunce stryfe shulde nat be amonge the people And for as moche as the sayd statute was ordayned to gyue a certeiÌ„te of title in the landes tenemeÌ„tes comprised in the fyne / It semeth that that fyne extiÌ„cted the title of all other / as well in conscieÌ„ce as it dothe in the lawe And sythe I haue answered to thy question I praye the let me knowe thy mynde in one question concernynge tayled landes than I will trouble the no ferther at this tyme. ☞ A questioÌ„ made by the Doctour / how certayne recoueries that be vsed iÌ„ the kynges courtes to defete tayled lande may stande with conscience The .xxvi. Chapitre DOctour I haue herde say that whaÌ„ a man that is seased of laÌ„des in the tayle selleth the lande That it is coÌ„monly vsed that he that byeth the lande shal for his suertye / for the auoydyng of the tayle in that behalfe / cause some of his frendes to recouer the sayde landes agaiÌ„st the sayd tenaunt in tayle whiche recouerye as I haue ben credably enformed shal be had in this maner / the demaundauÌ„tes shall suppose in theyr writte declaracion that the tenaÌ„t hath no entre / but by suche a straunger as the byer shall liste to name appoynte / where in dede the demaundauntes neuer had possession therof / nor yet the sayde straunger And thereupoÌ„ the sayde tenaunte in tayle shall appere in the court by coueÌ„ by alient of the parties / shall vouche to warrante one that he knoweth well hath nothynge to yelde in value And that vouche shall appere the demaundauntes shall declare agaynst hym / therupon he shall take a day to enperle iÌ„ the same terme at that day by assent couen of the partyes / he shall make defaulte vpoÌ„ whiche default bycause it is a default in despite of the court / the demaundauntê shall haue iugemeÌ„t to recouer agaynst the tenaunt in tayle / he ouer in value agaiÌ„st the vouche this iugement recouery in value / is taken for a barre of the tayle for euer / howe may it therfore be taken that that lawe standeth with conscieÌ„ce that as it semeth aloweth fauoureth suche fayned recoueries ¶ StudeÌ„t If the tenaÌ„t in tayle sel the laÌ„de for a certayn suÌ„me of money as is agreed betwixte them at suche a pryce as is coÌ„monly vsed of other landes / for the suertye of the sale suffereth suche a recouerye as is aforesayd / what is the cause that moueth the to doubte whether the sayd contracte or the recouery made thereupon for the suertye of the byer that hath truely payd his money for the same shuld stande with conscience ¶ Doctour Two thynges cause me to doute therein / one is for that that aft our lorde had gyuen the lande of byheste to Abrahan to his sede / that is to saye to his chyldren in possession alwaye to continue / he sayde to Moyses as it appereth LeuiticeÌ„ xxv the lande shall nat be solde for euer / for it is myne And than our lorde assigned a certayne maner howe the lande might be redemed in the yere of Iubilie if it were sold byfore for as moche as our lorde wolde that the lande so gyuen to Abraham his chyldren shuld nat be solde for euer / it semeth that he dothe agaynst the ensample of god that alieneth or selleth the laÌ„de that is gyueÌ„ to him to
the promyse be of a temporall thynge for a ê“hybicion or a premunire facias shulde lye in that case ¶ Doctor That is meruayle syth there can no accyon lye theron in the kynges courte as thou sayst thy selfe ¶ Student That maketh no mater / for though there lye no accion in the kynges courte agaynst executours vpoÌ„ a symple contracte / yet if they be suyd in that case for the dette in the spirituall court a prohybicion lyeth And in lyke wyse if a maÌ„ wage his lawe vntruly in an accyoÌ„ of dette vpoÌ„ a coÌ„tracte in the kynges courte / yet he shall not be sued for that periury in the spirituall courte / and yet no remedy lyeth for that periurye in the kynges courte / for the prohybicion lyeth not onely where a man is sued in the spirituall courte of suche thynges as the partye maye haue his remedie iÌ„ the kynges courte but also where the spirituall courte holdeth plee in suche case where they by the kynges pÌ„rogatiue and by the auÌ„cyent custome of the realme ought none to holde ¶ Doctour I wyl take aduysement vppon that thou haste sayde in this matter tyll another tyme I praye the nowe procede to another questyon ¶ The .xx. question of the student The .xxv. chapitre ¶ STudeÌ„t A man hath two sones / one borne before espousels and the other after espousels and the father by his wyll bequetheth to hys sonne and heyre all hys goodes whyche of these two sonnes shall haue the goodes in conscience ¶ Doctoure As I sayd in our fyrste dyalogue in latyn the last chapitre / the doute of this case depeÌ„deth not in the knowyng what conscyence wyll in the case / but rather in knowynge whiche of the sones shall be iuged heyre that is to saye whether he shal be takeÌ„ for heyre that is heyre by the spirituall lawe or he that is heyre by the law of the realme / or els that it shal be Iuged for hym that the father toke for heyre ¶ Student As to that poynte admyt the fathers mynde not to be knowen or els that his mynde was that he shulde be taken for heyre that sholde be iuged for heyre by that law that in thê case it ought to be iuged by And thaÌ„ I pray the shewe me thy mynde therin / for though the questyon be not dyrectly dependynge vpon that poynte to se what consicence wyll in this case / yet it is ryght expedient for the well orderynge of coÌ„science that it be knowen after what lawe it shal be Iuged for if it ought to be iuged after the temporall lawe who shulde be heyre than it were agaynste conscience if the Iuges in the spirituall lawe shulde Iuge hym for heyre that is heyre by the spirituall lawe / I thynke they shulde be bounde to restitucion therby / therfore I pray the shewe me thyn oppinion after what lawe it shall be iuged ¶ Doctour Me thynketh that in this case it shal be iuged after the lawe of the churche / for it apperth that the byquest is of goodes / and therfore if any sute shal be taken vpon the execucyon of the wyll for that bequest it muste be takeÌ„ in the spirituall courte when it is dependynge in the spirituall courte me thynketh it muste be iuged after the spirituall lawe for of the temporall lawe they haue no knowlege / nor they are not bounde to knowe it as me thynketh more stronger not to iuge after it But if the byquest had ben of a chatell reall as of a lease for terme of yeres or of a warde or suche other then the matter shulde haue come iÌ„ debate in the kynges courte / and theÌ„ I thynke the iuges there shulde iuge after the lawe of the realme and that is that the yonger brother is heyre / and so me thynketh the dyuersytye of the courtes shall make the dyuersytye of the iugement ¶ Student Of that myght folowe a greate inconuenyeÌ„ce as me semeth / for it myght be that in suche case bothe chatels realle chatels personel were in the wyll / thaÌ„ after thyne opinion the one sonne shulde haue the chatels personel the othersone the chatels real it can nat be coÌ„uenyently taken as me thiÌ„keth but that the fathers wyll was that the one soÌ„ne sholde haue all not to be deuyded Therfore me thynketh that he shal be iuged for heyre that is heyre by the comon lawe And that the iuges spirituall in this case be bounde to take notyce what the comoÌ„ lawe is for syth the thynges that be in varyaunce be temporall that is to say / the goodes of the father / it is reason that the ryght of them in thys realme shall be determyned by the lawe of the realme ¶ Doctoure Howe maye that be for the Iuges spirituall knowe not the lawe of the realme ne they can not knowe it as to the mooste parte of it for moche parte of the lawe is in suche speche that fewe men haue knowlege of it there is no meanes ne famylyarytye of study bytwene them that lerne the sayd lawes / for they be lerned in seuerall places after dyuers wayes after diuers maners of techynges in diuers speches comonly the one of them haue none of the bokes of the other / and to bynde the spirituall Iuges to gyue iugement after that lawe that they knowe not / ne that they can not come to the knowlege of / it semeth nat resonable ¶ StudeÌ„t They must do therin as the kynges Iuges must do when any matter cometh before them that ought to be Iuged after the spirituall lawe / whereof I put dyuers cases in our fyrste dialoge in englyssh the .vii. chapitre / that is to say / they muste eyther take / knowlege of it by theyr owne studye / orelles they muste enquere of theÌ„ that be lerned in the lawe of the churche what the lawe is in lykewyse muste they do But it is to doute that some of them wolde be lothe to aske any suche questyon in suche case / or to confesse that they are bounde to gyue theyr iugement after the teÌ„porall lawe surely they may lyghtly offend theyr conscience ¶ Doctoure I suppose that some be of opynion that they are not bouÌ„den to knowe the lawe of the realme and verelye to my remeÌ„brauÌ„ce I haue not herde that iuges of the spirituall lawe are bounde to knowe the lawe of the realme ¶ StudeÌ„t And I suppose that they are nat onely bounden to knowe the lawe of the realme or to do that in them is to knowe it whan the knowlege of it openeth the ryght of the matter that dependeth byfore theÌ„ but that they be also bouÌ„den to knowe where and iÌ„ what case they ought to Iuge after it / for in suche cases they muste take the kynges lawe as the lawe spiritual to that poynte and are bounden in conscience to folowe it as it may appere by diuers cases wherof
¶ Student I wyll with good wyll ⧠Whether an abbot may with coÌ„scieÌ„ce present to an aduouson of a churche that beloÌ„geth to the house without assente of the couent The .xxvi. chapitre DOctour It appereth iÌ„ the chapitre Eanoscitur de hus que fiunt a prelates / the whiche chapitre is recited in the summe called Summa angelica in the title abbas the .xxvii. article that he maye nat without any costume or any speciall priuilege do helpe there iii. Student Trouthe it is that there is suche a decretale / but they that be lerned in the lawe of Englande holde that decretale byndeth not in thys realme / and thys is the cause why they do holde that oppynyon By the lawe of the realme the hole disposicion of the laÌ„des and goodes of the abbey is the abbot only for the tyme that he is abbot not in the couent / for they be but as deed persones iÌ„ the lawe therfore the abbot shall sue be sued onely without the coueÌ„t do homage fealtie atturne make leases preseÌ„t to aduousons onely in his owne name / they saye farther that this aucthoritie can not be taken fro hym but by the lawe of the realme / and so they say that the makers of that decretale excedyd theyr power wherfore they say it is not to be holden in conscience / no more than if a decre were made that a lease for terme of yeres or at wyll made by the abbot withoute the coueÌ„te shuld be immedyatly voyde / so they thynke that the abbot may iÌ„ thys case preseÌ„t iÌ„ his owne name without offeÌ„ce of coÌ„science by cause the sayd decretale holdeth nat iÌ„ this realme ¶ Doctoure But many be of oppynyoÌ„ that no man hath aucthorytye to present in ryght and conscience to any benefice with cure but the pope or he that hath his aucthorytye thereiÌ„ deriuied fro the Pope for they saye that for as moche as the Pope is the vycar general vnder god hath the charge of the soules of all people that be in the floke of Christes churche it is reasoÌ„ that syth he cannat ministre to all ne do that is necessarie to all the people for theyr soule helthe in his owne persoÌ„ that he shall assygne deputyes for his dyscharge iÌ„ that behalfe / bycause patrons clayme to present to churches in this realme by theyr owne ryght without tytle deriuied fro the Pope they saye that they vsurpe vpon the popes authoritie / therfore they conclude that thoughe the abbot haue title by the lawe of the realme to present iÌ„ this case iÌ„ his owne name that yet bycause that title is against the popes prerogatiue that that title ne yet the lawe of the realme that mayntenyth that tytle holdeth not iÌ„ coÌ„scyence And they say also that it belongeth to the lawe canon to determine the ryght of pÌ„sentmeÌ„t of benefices for it is a thynge spirituall and belongeth to the spirituall iurisdiccioÌ„ as the depryuacioÌ„ fro a benefice doth so they saye the sayd decretale biÌ„deth iÌ„ coÌ„scyeÌ„ce thoughe iÌ„ the lawe of the realme it binde nat ¶ StudeÌ„t As to thy fyrste coÌ„sideracion I wolde ryght well agre that if the patroÌ„s of churches in this realme claymed to put encumbentes in to suche churches as shulde fall voyde of theyr patronage without pÌ„seÌ„ting them to the bysshop or if they claymed that the bhysshop shold admit suche encumbent as they shulde present without any examinacion to be made of his abylite in that behalfe / that that clayme were agaiÌ„st reasoÌ„ and coÌ„scyeÌ„ce for the cause that thou hast rehercyd but for as moche as the patroÌ„s iÌ„ thê realme clayme no more but to pÌ„sent theyr encuÌ„bentes to the bisshop theÌ„ the bysshop to examin the abylitie of the encumbeÌ„t / if he fynde hym by the examinacyoÌ„ nat able to haue cure of soule / he theÌ„ to refuse hiÌ„ the patrone to preseÌ„t another that shal be able / if he be able thaÌ„ the bisshop to admit hiÌ„ iÌ„stitute hiÌ„ iÌ„ducte him I thiÌ„ke that this clayme theyr pÌ„sentemeÌ„tes therupon stande with good reason and coÌ„scyence / and as to the seconde consideracyoÌ„ it is holden in the lawes of the realme that the right of preseÌ„tement to a churche is a temporall enherytauÌ„ce shall desceÌ„de by course of enheritauÌ„ce fro heyre to heyre as laÌ„des tenementes shall shall be takeÌ„ as an asses as laÌ„des tenemeÌ„tes be for the tryall of the ryght of patronages be ordeyned iÌ„ the lawe diuers accyoÌ„s for theÌ„ that be wroÌ„ged in that behalfe as writtes of ryght of aduouson Assises of â—aren presentement Quare impedit diuers other / whiche alwaye withoute / time of mynde haue ben pledyd in the kynges courtes as thinges preteyning to his crowne roiall dygnytie / and therfore they saye that in this case his lawes ought to be obeyed in lawe and conscience ¶ Doctoure If it come in variaunce whether he that is so pÌ„sented be able or nat able be whome shall the abilitie be tried ¶ StudeÌ„t if the ordinarie be nat partie to the accyon it shall be tried be the ordinarie / and if he be partie it shall be tryed be the metropolitane ¶ Doctoure Than the lawe is more reasonable in that poynt than I thought it had ben but iÌ„ the other poynt I will take aduisement in it tyll a nother tyme / and I pray the shewe me thy mynde in thê poynt if an abbot name his couent with hym in his presentacyon doth that make the pÌ„sentacion voyde in the lawe or is the presentacyon good that nat withstaÌ„ding ¶ Student I thynke it is nat voyd therfore but the namyng of theym is voyde a thyng more thaÌ„ nedeth / for if the abbot be disturbed he muste brynge hys accion in hys owne name withoute the couente ¶ Doctoure Then I perceyue well that it is nat prohibit in the lawe of Englande but that the abbot may name the couent iÌ„ his presentacion with hym / and also take theyr assent whom he shall presenet if he wyll / and then I holde it the surest waye that he so do / for in so doynge he shall nat offeÌ„de nother in lawe nor coÌ„scieÌ„ce ¶ Student To take the asseÌ„t of the coueÌ„t whome he shall presente and to name them also in the presentacyon / knowynge that he may do otherwyse bothe iÌ„ lawe and conscience if he will / is no offeÌ„ce But if he take theyr assent or name them with hym in the presentacyon thinkynge that he is so bounde to do in lawe and conscyence / settyng a coÌ„science where none is / and regareth nat the lawe of the realme that wyll dyscharg his conscyence in this behalfe if he will so that he present an able man as he maye do without theyr assent / there is an erroure and offence of conscynce in the abbot And in lyke wise if the abbot preseÌ„t iÌ„ his owne name / and therfore the couent
sayth that he offendeth conscyence iÌ„ that he obserueth nat the lawe of the churche for that he taketh nat theyr assente / than they offende in iuginge hym to offende / that offendeth nat And therfore the sure way is iÌ„ this case to Iuge bothe the sayd lawes of suche effecte as they be / and nat to set an offence of conscience by brekyng of the said decre whiche standeth nat iÌ„ effecte iÌ„ this behalfe within this realme ¶ If a man fynde beastes in his grounde doynge hurte / whether may he by his owne auctoritie take them and kepe them tyl he be satysfyed for the hurt The .xxvii. Chapitre DOctoure This question is made in the SuÌ„me called summa rosella in the title of restytucyoÌ„ / that is to saye restitucio .xiii. the .ix. article / and there it is answered that he may nat take them for to holde them as aplegd tyll he be satisfied for the hurte but that he may take them kepe them tyll he knowe who oweth them that he may therby lerne agaynst whome to haue his remedye Is nat the lawe of the realme so in lyke wise ¶ StudeÌ„t No verily / for by the lawe of the realme he that in that case hath the hurte may take the beastes as a dystresse and put them iÌ„ a pounde ouert so it be within the same shyre / there let them remayn tyll the owner will make hym amendes for the hurt ¶ Doctour what callest thou apound ouerte ¶ Student A pounde ouerte is nat onely suche poundes as be comonly made in townes and lordshyppes for to put in beestes that be dystreyned / but it is also euery place where they may be iÌ„ lawfully nat makiÌ„ge the own our an offeÌ„der for ther beyng ther that it be there also that the owner may lawfully gyue the beestes meate driÌ„ke whyle they be iÌ„ pounde ¶ Doctor. And if they dye iÌ„ pouÌ„de for lake of mete whose ieopereye is it ¶ StudeÌ„t If it be suche a pouÌ„de ouerte as I speke of it is at the peryll of him that owyth the beestes so that he that had the hurte shall be a lybertie to take his accion for the trespas if he wyll if it be nat a lawfull pounde theÌ„ it is at the peryll of hym that dystrayned / and so it is if he driue them out of the shyre And they dye there ¶ Doctoure I put case that he that owyth the beestes offer suffycyeÌ„t ameÌ„des the other wyll nat take it but kepeth the beastes styll in pounde / may nat the ouer take them out ¶ Student No for he may nat be his owne iuge And if he do an accyon lyeth agaynst hym for brekyng of the pounde / but he must sue a repleuyn to haue his beastes delyuered hym out of pounde / and therupon it shall be tryed by .xii. men whether the amendis that was offred were suffycieÌ„t or nat / if it be founde that the offer was nat suffycyent than he that hath the hurte shall haue suche amendes as the .xii. meÌ„ shall asses ¶ Doctoure If it be founde by the .xii. men that the amendes were suffycent / shall he that refused to take it haue no punysshment for his refusell for kepyng of the beestes in pounde after that tyme. ¶ Student I thynke no / but that he shall yeld damages in the repleuyn because the yssue is tryed agaynste hym ¶ Doctoure I put case that the beastes after that refusell dye in pouÌ„de for lacke of meate at whose ieoperdie is it than ¶ Student At the ieoperdie of him that owid the beastes as it was before for he is bounde at his peryll by reason of that wronge that was done at the begynnynge to se that they haue meate as loÌ„ge as they shal be in pouÌ„de oneles the kynges writte come to deliuer them he resisteth it / for after that tyme it wyll be at his ieoperdye if they dye for lacke of meate the dammages shal be recouered in an accion broughte vpon the statute for disobeynge the kynges writte ☞ Whether a gyfte made by one vnder the age of .xxv. yere be good The .xxviii. Chapitre DOctoure It appereth in Summa angelica in the title donacio prima the .vii. article that a maÌ„ before the age of .xxv. yere may nat gyue withoute it be with the auctoritie of his tutoure Is it nat so likewyse at the comon lawe ¶ Student The age of InfauÌ„tes to gyue or selle theyr landes goodes in the law of EnglaÌ„de at his .xxi. yere / or aboue / so that after that age the gifte is good / and before that age it is nat good / by whose assent so euer it be / except it be for his meate drinke or apparell / or that he do it as executour in perfourmaunce of the will of his testatour or in some other lyke cases that nedeth nat to be reherced here / and that age muste be obserued in this realme in lawe conscience nat the sayde age of .xxv. yere ¶ Doctoure I put case it were ordeyned by a decree of the churche that if any maÌ„ by his will bequethe goodes to an other / willeth that they shal be deliuered to hym at hê full age that iÌ„ that case .xxv. yere shal be takeÌ„ for the ful age shal nat that decre be obserued stande good after the lawe of EnglaÌ„de ¶ StudeÌ„t I suppose it shal nat for though it beloÌ„ge to the churche to haue the ê“bate the execucioÌ„s of testameÌ„tê made of goodes chatels except it be in certayne lordshypes seygnories that haue theÌ„ by prescripcion / yet the churche maye nat as it semeth determine what shal be the lawfull age for any persone to haue the goodes for that beloÌ„geth to the kynge his lawes to determine / therfore if it were ordeyned by a statute of the realme that he shulde nat in suche case haue the goodes tyll he were of the age of .xxv. yere that statute were good to be obserued as well in the spirituall lawe as in the law of the realme if a statute were good in that case / than a decre made therof is nat to be obserued / for the orderynge of the age may nat be vnder two seuerall powers / one ê“pertie of euery good lawe of man is that the maker excede nat his auctoritie / and I thynke that the spirituall Iuges in that case ought to iuge the full age after the lawe of the realme seynge that the matter of the age concerneth temporall goodes / I suppose ferther that as the kynge by auctoritie of his parliament may ordeyne that all wylles shal be voyde that the goodes of euery maÌ„ shal be disposed in suche maner as by statute shulde be assigned that more stronger he maye appoynte at what age suche willes as be made shal be perfourmed ¶ Doctoure Thynkest thou than that the kyng may take awaye the power of the ordinarie
that do assoyle hym / but yet neuertheles he is assoyled / and if he be nat able to make amendes that he muste yet be assoyled / takynge a sufficiente gage to satysfie yf he be able here after / or elles that he make an othe to satisfie if he be able And these sayenges in many thynges holde nat in the lawes of Englande ¶ Doctoure I pray the shewe me wheriÌ„ the law of the realme varieth therfro ¶ StudeÌ„t If a man be excommunicate in the spirituall courte for det / trespas / or suche other thynges as belong to the kynges crowne to his royall dignite there he oughte to be assoyled without makynge any satisfaccion / for the spirituall courte exceded theyr power in that they helde ple in those cases the party if he wyll may therupon haue a Premunire facias as well agaynste the partye that sued hym as agaynst the iuge therfore in this case they oughte in conscience to make absolucion withoute any satisfaccion / for they nat onely offeÌ„ded the party in callynge hym to answere before theÌ„ of suche thynges as belong to the law of the realme but also the kynge / for he by reason of suche sutes maye lese greate aduauntages by the reason of the writtes originals / iudicials / fynes / amerciamentes / suche other thynges as mighte growe to hym if suche sutes had beÌ„ takeÌ„ in his courtes accordynge to his lawes / accordyng to his saynge it apperet in diuers statutes that if a man laye violent handes vpon a clerke bete hym / that for the betynge ameÌ„des shal be made in the kynges court / for the layeng of violent haÌ„des vpoÌ„ the clerke amendes shal be made in the courte cristieÌ„ And therfore if the iuge in the court cristieÌ„ wolde awarde the partie to yelde damages for the betynge he dyd agaynste the statute / but admitte that a man be excommenged for a thynge that the spirituall courte may awarde the party to make satisfaccioÌ„ of / as for the nat inclosinge of the churche yarde / or for nat apparelliÌ„ge of the churche conueniently Than I thynke the partye muste make restitucion or lay a sufficiente causion if he be able or he be assoyled / but if the partye offre sufficient ameÌ„des haue his absolucion / the iuge wyll nat make hym his letters of absolucion if the excommengemente be of recorde in the kynges courte thaÌ„ the kynge may writte vnto the spirituall iuge coÌ„maundyng hym that he make the party his letters of absolucion vpon payn of a contempte / if the sayd excommunicacioÌ„ be nat of recorde in the kynges courte than the partye maye in suche case haue his accion agaynst the Iuge spirituall for that he wolde nat make hiÌ„ his lettres of absolucion but if he be nat assoyled or if he be nat able to make satisfaccion therfore the iuge spirituall wyll nat assoyle hym / what the kynges lawes maye do iÌ„ tha case I am somwhat in doute / and wyll nat moche speke of it at this tyme / but as I suppose he may as well haue his accion in that case for the nat assoylynge hym as where he is assoyled that the Iuge will nat make hiÌ„ his letters of absolucion / I suppose the same law to be where a maÌ„ is accursed for a thyng that he iuge had no power to accurse hiÌ„ in / as for dette / trespasse / or suche other ¶ Doctor. There he may haue other remedies as a premunire facias or suche other / therfore I suppose the other accioÌ„ lieth nat for hiÌ„ ¶ Student The iuge the partie may be ded / thaÌ„ no premunire lieth / though they were alyue were coÌ„deÌ„pned in a Premunire / yet that shulde nat auoyd the eâ—coÌ„mengement / therfore I thynke the accion lieth specially if he be therby delayed of accions that he might haue in the kynges court if the sayd excoÌ„mengement had nat ben ☞ Whether a Prelate may refuse a legaci The .xxxiii. Chapitre STudeÌ„t It is moued in the sayd summe named Rosella in the title alienacio xx the .xi. article whether a pÌ„late may refuse a legaci / where in diuers opynions be recited there / whiche as me thynketh haue nede after the lawes of the realme to be more playnly declared ¶ Doctoure I praye the shewe me what the law of the realme will therin ¶ StudeÌ„t I thinke that euery pÌ„late suffereyn that may onely sue be suyd in his owne name as Abbates â–ª Priours suche other may refuse any legaci that is made to the house for the legacie is nat perfyte tyl he to whome it is made assent to take it for els if he mighte nat refuse it he might be compelled to haue laÌ„des wherby he myghte in some case haue greate losse but than if he intende to refuse he muste as sone as his title by the legacy falleth relinquisshe to take the profites of the thyng bequethe / for if he ones take the profites therof he shall nat after refuse the legaci but yet his successour may if he will refuse the takynge of the profites to saue the house fro yeldynge of damages or fro arrerages of rentes if any suche be lyke lawe is of a remayndre as is in legaci for though in the case of a remaindre also of a deuise as moste men say the freholde is caste vpon hym by the lawe whan the remayndre or deuise falleth yet it is in his libertie to refuse the takynge of the profites to refuse the remaiÌ„dre or deuise if he wyll as he myghte do of a gyfte of landes or goodes for if a gyfte be made to a man that refuseth to take it / the gyfte is voyde if it be made to a man that is absent the gifte taketh nat effecte in hym tyll he assent no more than if a maÌ„ dissease one to another maÌ„nes vse / he to whose vse the disseason is made hath nothyng in that laÌ„de ne is no disseasoure tyll he agre And to suche disseasons gyftes an Abbot or Priour may disagre as well as any other maÌ„ but after some men a Bisshope of a deuise or remayndre that is made to the Bisshop to the deane chapitre nor a deane and a chapitre of a deuise or remayndre made to theÌ„ ne yet the mayster of a colage of suche a deuise or remayndre made to hiÌ„ to his bretherne / maye nat disagre withoute the chapitre or bretherne for the Bisshoppe of of suche landes as he hath with the deane chapitre ne the deane nor mayster of suche lande as they haue with the chapitre or bretherne may nat answere without the chapitre bretherne therfore some saye that if the deane or mayster wyll refuse or disclayme in the landes that they haue by the deuise or remaindre that that disclaymour without the chapitre or bretherneis voyde And therfore it is holdeÌ„ in
ne yet by conscieÌ„ce / no more for the sayd two causes than it may for any other cause / this case muste of necessitie be iuged after the rules groundes of the law of the realme after no other lawe as me semeth ☞ If the patrone present nat within .vi. monethes who shall presente The .xxxvi. Chapitre STudent In the sayde summe called Summa rosella in the title Beneficio in principio it is asked / if the patrone present nat within .vi. monethes who shal present within what tyme the presentement muste be made And it is answered there that if the patroÌ„ present nat within vi monethes that the chapitre shall haue vi monethes to pÌ„sent / if the chapitre present nat within .vi. monethes that thaÌ„ the Bisshope shall haue other .vi. monethes And if he be necligent / than the Metropolitane shall haue other .vi. monethes / if he present nat than the presentement is deuolute to the Patriarke And if the metropolitane haue no superiour vnder the Pope / than the presentemeÌ„t is deuolute to the Pope And so as it is sayde there the archebisshope shall supplye the necligence of the Bisshope if he be nat exempte / if he be exempte the presentement immediatly shall fall fro the Bisshope to the Pope An as I suppose these diuersities holde nat in the lawes of the realme ¶ Doctour ThaÌ„ I pray the shewe me who shall present by the lawes of the realme if the patron do nat present within his .vi. monethes ¶ StudeÌ„t Than for defaute of the patrone the Bisshope shall present / oneles the kyng be patrone / if the Bisshop present nat withiÌ„ vi monethes / than the metropolitane shal present whether the Bisshope be exempte or nat And if the metropolitane presente nat within the tyme limitted by the lawe / than there be diuers oppinions who shall present / for some say that the Pope shall present / as it is sayd before / some say the kiÌ„ge shall present ¶ Doctoure what reasoÌ„ make they that say the kyng shulde present in that case ¶ StudeÌ„t This is theyr reason they saye that the kynge is patrone peramounte of all the benifices within the real me And they say further that the kynge his progenitours kiÌ„ges of EnglaÌ„de without tyme of mynde haue had authoritie to determine the right of patronages in this realme in theyr owne courtes / are bounden to se theyr subiectes haue right in that behalfe withiÌ„ the realme / that in that case fro hym lieth no appele And than they say that if the Pope in this case shulde present that than the kynge shulde nat onely lese his patronage peramounte / but also that he shulde nat somtyme be able to do right to his subiectes ¶ Doctoure In what case were that ¶ Student It is in this case / the lawe of the realme is / that if a benefice falle voyde / that the patrone shal present within .vi. monethes if he do nat that thaÌ„ the ordinarie shal ê‘sent but yet the law is ferther iÌ„ that case that if the patroÌ„ presente before the ordinari put in his clerke that thaÌ„ the patroÌ„ of right shal inioye his presentement / so it is / thoughe the tyme shulde fall after to the metropolitane or to the Pope / if the presentement shulde fall to the Pope / than thoughe the aduouson abode styll voyde / so that the patrone might of right present / yet the patrone shulde nat knowe to whome he shulde present / oneles he shuld go to the Pope / so he shuld fayle of right within the realme And if percase he wente to the Pope presented an able clerke vnto hym / yet his clerke were refused another put in at the collacioÌ„ of the Pope or at the presentement of a strauÌ„ger yet the patrone coulde haue no remedie for that wroÌ„ge within the realme / for the encumbente myghte abyde stille out of the realme And therfore the lawe wyll suffre no title in this case to fall to the Pope And they say that for alyke reasoÌ„ it is that the law of the realme will nat alowe an excoÌ„mengemeÌ„t that is certified in to the kynges court vnder the popes bulles For if the partie offered sufficieÌ„t ameÌ„des / yet coulde nat obteyne his letters of absolucion / the kynge shulde nat knowe to whome to writ for the letters of absolucioÌ„ / and so the partie coulde nat haue righte / that the lawe wyll in no wyse suffre ¶ Doctoure The patrone in that case may present to the ordinarie as longe as the churche is voyde / if the ordinarie accepte hym nat / the patrone may haue his remedie agaynst hym within the realme But if the Pope wyll put in an encumbeÌ„t before the patrone present / it is reason that he haue the prefermeÌ„te as me semeth before the kynge ¶ Student Whan the ordinarie hath surcessed his tyme he hath loste his power as to that presentement / specially if the collacion be deuolute to the pope And also whan the presentement is in the Metropolitane he shall put in the clerke hym selfe nat the ordinarie / so there is no defaute in the ordinarie though he present nat the clerke of the patrone if his tyme be past / so there lieth no remedie agaynst hym for the patrone ¶ Doctour Though the encumbeÌ„t abyde styll out of the realme yet maye a Quare impedit lye agaynste hym within the realme / if the encuÌ„bent make defaute vpon the distresse appere nat to shew his title than the patron shall haue a writt to the Bisshope accordyng to the statute / so he is nat without remedy ¶ StudeÌ„t But in this case he can nat be sommoned / attached / nor distrayned / within the realme ¶ Doctoure He maye be somoned by the churche as the tenaunt may in a writte of right of auouson ¶ Student There the auouson is in demaunde / here the presentement is onely in debate / so he can nat be somoned by the churche here no more than if it were in a writte of annuitie / and there the comon returne is quod clericus est beneficiatus non habens laicum feodum vbi potest summoniri And thoughe he might be somoned in the church / yet he might nether be attached nor distrayned there / so the patrone shulde be withoute remedie ¶ Doctoure And if he were with out remedie / he shulde yet be in as good case as he shulde be if the kyng shulde preseÌ„t / for if the title shulde be gyuen to the kynge the patrone had lost his presentement clerely for that tyme though the churche abyde styll voyd For I haue herde saye that in in suche presentementes no tyme after the lawe of the realme renneth vnto the kyng ¶ StudeÌ„t That is true / but there the presentement shulde be takeÌ„ fro hym by right by the lawe here it
shulde be taken fro hym agaynst the lawe / there as the lawe coulde nat helpe hym that the lawe wyll nat suffre ¶ Doctoure yet me thynketh alway that the title of the laps iÌ„ such case is gyuen by the lawe of the churche nat by the teÌ„porall lawe / therfore it forseth but littell / what the temporall lawe wyll in it as me semeth ¶ Student In suche countreys where the Pope hath power to determine the righte of temporall thynges I thynke it is as thou sayest / but in this realme it is nat so And the righte of presentement is a temporall thynge a temporall enheritaunce / therfore I thynke it belongeth to the kynges lawe to determine / also to make lawes who shall present after the .vi. monethes / as wel as before / so that the title of examinacion of abilitie or none abilitie be nat therby taken fro the ordinaries / in lykewise it is of auoydauÌ„ce of benefices / that is to say / that it shal be iuged by the kynges lawes whan a benefice shal be sayd voyde whaÌ„ nat / nat by the law of the churche as whan a person is made a Bisshope or accepteth another benefice without liceÌ„ce / or resigneth / or is depriued in these cases the comoÌ„ law sayth that the benefices be voyde so they shulde be though a law were made by the churche to the coÌ„trary / so if the Pope shulde haue any title in this case to present / it shulde be by the lawe of the realme And I haue nat sene ne herde that the lawe of the realme hath gyueÌ„ any title to the Pope to determine any teÌ„porall thyng that may be lawfully determined by the kynges court ¶ Doctoure It semeth by that reason that thou haste made nowe that thou preferrest the kynges authoritie in presentemeÌ„tes before the Popes / that me thynketh shulde nat stande with the lawe of god syth the Pope is the vicar generall vnder god ¶ StudeÌ„t That I haue sayd proueth nat that / for the hyghest prefermeÌ„t in presentemeÌ„tes is to haue authoritie to examine the abylitie of the person that is pÌ„sented / for if the present be able / it suffiseth to the discharge of the ordinarie / by whome so euer he be pÌ„sented that authoritie is nat denied by the law of the realme to beloÌ„ge alwaye to the spirituall iurisdiccioÌ„ / but my meanyng is that as to the right of presentementes to determine who ought to present who nat at what tyme / whaÌ„ the churche shal be iuged to be voyde whaÌ„ nat / beloÌ„geth to the kyng his lawes / for elles it were a thing in vayne for him to holde ple of aduousons or to determine the righte of patronage in his owne courtes nat to haue aucthorite to determyne the right therof / these claymes semeth nat to be agaynste the lawe of god And so me semeth in this case the presentement is gyuen the kynge ¶ Doctor And if the kynge shulde haue right to present than might the churche happen to coÌ„tinue voyde for euer for as we haue sayde before no tyme renneth to the kyng in suche presentementes ¶ Student If any suche case happen if the kynge present nat than may the ordinary set in a deputie to serue the cure as he may do whaÌ„ necligeÌ„ce is in other patrons that may present do nat / also it can nat be thoughte that the kyng whiche hath the rule gouernauÌ„ce ouer the people nat onely of theyr bodyes but also of theyr soules wyll hurte his conscience suffre a benefice continually to stande withoute a curate no more than he doth in auousons that be of his owne presentemente ☞ Whether the presentement collacioÌ„ of all benefices dignities voydynge at Rome belonge onely to the Pope The .xxxvii. Chapitre STudent In the sayde summe called Summa rosella in the title BeneficiuÌ„ primum / iÌ„ the .xiii. article It is sayde that benefices / dignities / ê‘sonages / voydynge in the courte of Rome maye nat be gyuen but by the Pope likewyse of the Popes seruauntes of other that come go fro the courte if they dye in places nye to the court within two dayes iourney all these belonge to the Pope / but if the Pope presente nat within a moneth than after the moneth they to whome it beloÌ„geth to present may present by them selfe onely or by theyr vicar generall if they be in farre parties these saynges holde nat in the lawes of the realme ¶ Doctoure what is the cause that they holde nat iÌ„ this realme as well as in all other realmes ¶ StudeÌ„t One cause is this The kyng iÌ„ this realme accordyng to the auÌ„cieÌ„t right of his crowne / of all his aduousons that be of his patronage oweth to present And in likewise other patrons of benefices of theyr presentement / the plee of the right of presentementes of benefices within this realme belonge to the kyng his crowne And these titles can nat be taken fro the kynge his subiectes but by theyr assent / so the lawe that is made therin to put away that title byndeth nat in this realme / ouer that before the statute of .xxv. of Edwarde the .iii there was a great inconuenieÌ„ce mischief by reason of diuers prouisioÌ„s reseruacioÌ„s that the Pope made to benefices in thys realme coÌ„trari to the olde right of the kyng other patrons in this realme as well to archebisshopryches / Bisshopryches / deauries / Abbes as to other dignities benefices of the church And many tymes alieÌ„s therby had benefices within the realme that vnderstode nat the englisshe tonge / so that they coulde nat counsayle ne conforte the people whan nede requyred / by that occasion great ryches was coÌ„uayed out of the realme / wherfore to auoyde suche inconueniences it was ordeyned by the sayd statute that all patroÌ„s as well spirituall as teÌ„porall shulde haue theyr presentemeÌ„tes frely / in case that collacioÌ„ or prouisioÌ„ were made by the Pope in disturbauÌ„ce of any spirituall patroÌ„ that thaÌ„ for that tyme the kiÌ„g shulde haue the pÌ„sentemeÌ„t / if it were iÌ„ disturbauÌ„ce of any lay patroÌ„ that thaÌ„ if the patroÌ„pÌ„sented nat withiÌ„ the halfe yere after suche voydaÌ„ce nor the Bisshope of the place withiÌ„ a moneth after the halfe yere that thaÌ„ the kyng shulde haue also the pÌ„sentement / that the kyng shulde haue the profites of the benefices so occupied by prouisioÌ„ except abbes priours other houses that haue colage coueÌ„t / there the colage coueÌ„t to haue the profites / bycause the statute is generall excepteth nat suche benefices as shall voyde in the courte of Rome or in suche other place as before appereth / therfore they be takeÌ„ to be withiÌ„ the prouisioÌ„ of the sayd estatute as well as the benefices that voyde withiÌ„
is sayde there that suche thynges come to hym by reason of his owne persone / whiche saiÌ„ges I thinke accorde with the lawe of the realme But for as moche as in the sayd article in diuers other places of the sayd chapitre / in diuers other chapitres of the sayd summe is put great diuersitie betwene suche goodes as a clerke hathe by reason of his churche and suche goodes as he hath by reason of his person and that he muste dispose suche goodes as he hath by reason of his churche in suche maner as is appoiÌ„ted by the lawe of the churche / so that he maye nat dispose them so liberally as he may the goodes that come by reasoÌ„ of his owne persone / therfore I shall a litle touche what spirituall meÌ„ may do with theyr goodes after the lawe of the realme Fyrst a Bisshop of suche goodes as he hath with the deane the chapitre he may nether make gyfte nor byquest / but of suche goodes as he hath of his owne by reason of his churche or of the gifte of his auncestres or of any other / or of his patrimony he maye bothe make giftes byquestes lawfullye And an Abbot of the goodes of his church may make a gyfte the gyft is good as to the lawe But what it is in conscieÌ„ce that is after the cause intente qualitie of the gyfte / for if it be so moche that it notablie hurteth the house or the couent / or if he gyue away the bokes or the chalyces / or suche other thynges as belonge to the seruice of god / he offendeth in conscience / yet he is nat punisshable in the lawe / ne yet by a sub pena after some meÌ„ ne in none other wyse but by the lawe of the churche as a waster of the goodes of his monastery But neuertheles I will nat fully holde that opinion as to that that belongeth necessaryly to the seruice of god / whether any remedye lye agaynst hym or nat / but remyt it to the iugement of other And a deane a chapitre a mayster bretherne of goodes that they haue to them selfe And also of goodes that they haue with the chapitre bretherne the same diuersite holdeth as appereth before of a Bisshope the deane chapitre / excepte that in the case of a mayster bretherne the goodes shal be ordered as shal be assigned by the fundacion And moreouer of a parson of a churche vicar / chaunterie preest / or suche other / all suche goodes as they haue / as well suche as they haue by reson of the personage / vicarage / or chauÌ„tery / as that they haue by reason of theyr owne persone they maye lawfully gyue bequethe where they will after the comoÌ„ lawe And if they dispose parte amonge theyr parysshens parte to the byldinge of churches / or gyue parte to the ordinarie / or to poore men / or in suche other maner as is apoynted by the law of the churche they offende nat therein / oneles they thynke them selfe bounden therto by duetie by authorite of the lawe of the churche / nat regardynge the kiÌ„ges lawes / for if they do so it semeth they resiste the ordenaunce of god / whiche hath gyuen power to princes to make lawes But there as the Pope hath soueraintie in temporal thynges as he hath in spirituall thynges / there some saye that the goodes of prestes muste in conscience be disposed as is conteyned in the sayd summe / but that holdeth nat iÌ„ thê realme / for the goodes of spuÌ„al meÌ„ be teÌ„poral iÌ„ what maner so euer the come to theÌ„ / muste be ordered after the temporal law as the goodes of the teÌ„porall meÌ„ muste be How be it if there were a statute made iÌ„ this case of lyke effecte in many poiÌ„tes / as the law of the churche is I thynke it were a right good a profitable statute ☞ Who shall succede a clerke that dyeth intestate ⧠The .xl. Chapitre STudent In the sayd summe called rosella in the chapitre Clericus quartus the .vii. article / is asked this question / who shall succede to a clerke that dyeth intestate And it is answered that in goodes gotteÌ„ by reason of the churche the churche shall succede But in other goodes his kinnesmen shall succede after the order of the law / if there be nat kinnesmen than the churche shall succede And it is there sayd forther that goodes gotten by a canon seculer by reason of his churche or prebende shall nat go to his successour in the prebende / but to the chapitre But where one that is beneficed is nat of the congregacioÌ„ / but he hath a benefice clerely seperate / as if he be a parsone of a parysshe churche or is a president or an archedeacon nat beneficed by the chapitre / than the goodes gotteÌ„ by reason of his benefice / shall go to his successoure nat to the chapitre / none of these sayenges holde place in the lawes of Englande ¶ Doctour what is thaÌ„ the law if a paÌ„rsone of a churche or a vycar in the countrey dye intestate / or if a chanon seculer be also a parson haue godes by reason therof also by a prebende that he hath in a cathedrall church he dye intestate / who shall haue his goodes ¶ Student At the comon law the ordinarie in all these cases may administre the goodes after he must commit administracion to the next faythe full frendes of hym that is ded intestate that wyll desyre it as he is bounde to do where lay men that haue goodes dye intestate And if no maÌ„ desyre to haue administracion than the ordinarie may administre sethe dettes payde he muste beware that he paye the dettes after suche order as is appoynted in the comon law / for if he pay dettes vpon simple coÌ„tractes before an obligacion he shal be coÌ„pelled to pay the dette vpon the obligacion of his owne goodes if there be nat goodes sufficieÌ„t of hym that dyed intestate / though it be suffered in suche case that the ordinarie maye pay pouÌ„de pounde like that is to apporcion the goodes amonge the dettours after his discrecion / yet by the rigoure of the comon lawe he might be charged to hym that caÌ„ fyrste haue his iugement agaynst hym And ferthermore by that is sayde afore in the laste chapitre appereth if a Bisshope that hath goodes of his patrimony / or a mayster of a colage / or a deane of goodes that they haue of theyr owne onely to them selfe dye intestate / that the ordinarie shall commit administracion therof as before appereth if they make executours than the executours shall haue the ministracion thereof But the heyres nor the kynnesmeÌ„ by that reason onely that they be heyres or of kynne to hym that is decessed shall haue no medlyng with his goodes except it be by
If a clerke be promoted to the title of his patrimonie after selleth his patrimonye after falleth to pouertye whether shall he haue his title therin or nat The .xliiii. Chapitre STudent In the sayd suÌ„me called Rosella in the title Clericus quartus / the xxiiii article it is asked if a clerke be promoted to the title of his patrimony whether he maye aliene it at his pleasure and whether in that alienacion the solempnite nedeth to be kepte that is to be kept in alienacioÌ„ of thynges of the churche / it is answered there that it may nat be aliened no more thaÌ„ the goodes of a spirituall benefice if it be accepted for a title expressely assigned vnto hym / so that it shulde go as in to a rhynge of the churche / except he haue after an other benefice wherof he may lyue But if it be secretely assigned to his title some agree it may be aliened / in this case by the lawes of the realme it may be lawfully aliened whether it be secretely or opeÌ„ly assigned to his title / for the ordinarie ne yet the party hym selfe after the olde customes of the realme haue no auctorite to biÌ„de any inheritaunce by aucthoritie of the spirituall lawe / therfore the lande after it is assigned accepted to be his title standeth in the same selfe case to be boughte / solde / charged / or put in execucioÌ„ as it dyd before And therfore it is somwhat to be maruayled that ordinaries will admitte suche lande for a title to the inteÌ„te that be that is promoted shulde nat fall to extreme pouerty or go openly a beggynge / without knowynge howe the comon lawe will serue therin / for of mere right all enheritauÌ„ce within this realme ought to be ordered by the kynges lawes / inheritaunce can nat be bounden in this realme but by fine or some other matter of recorde / or by feoffemeÌ„t / or suche other or at leste by a bargain that chaungeth an vse And ouer that to assigne a stare for terme of lyfe to him that hath a fee simple before is voyde in the lawes of Englande without it be by suche a matter that it worke by way of conclusioÌ„ or estapell / in this case is no suche mater of conclusion / therfore all that is done in suche case in assignynge of the sayd title is voyde Also there is no interest that a maÌ„ hath in any maner landes or tenementes for terme of lyfe / for terme of yerê / or otherwyse / but that he by the law of the realme may put away his right therein if he will And than whan this man alieneth his laÌ„de generally it were against the lawe of the realme that any interest of suche a title shuld remayne in hym agaynste his owne sale / there is no diuersite whether the assignement of the title were open or secrete / so that title is voyde to all intentes And in in lykewise if a house of religion or any other spirituall man that hath graunted a title after the custome vsed in suche titles sell all the landes goodes that they haue that sale in the lawes of EnglaÌ„de is good as agaynste that title / the byer shall neuer be put to answere to that title Also some saye that vpon the comoÌ„ titles that be made dayly in suche case that if he fall to pouertie that hath the title he is without remedy / for they be so made that at the comon lawe there is no remedye for them / if he take a sute in the spirituall court may men saye that a prohibicioÌ„ or a premunire lieth And therfore it were good for ordinaries iÌ„ suche case to counsayle with them that be lerned in the lawe of the realme to haue suche a forme deuised for makynge of suche titles / that if nede be wolde serue theÌ„ that they be made vnto / or elles lette theÌ„ be promoted without any title / to truste in god that if they serue hym as they ought to do he wyll prouide for them to haue sufficient for them to lyue vpon And beside these cases that I haue remembred before / there be many other cases put in the sayde summes for the well orderynge of conscience / that is as me thynketh are nat to be obserued in this realme neyther in lawe nor in conscience ¶ Doctour Doste thou than thynke that there was defaute in them that drewe the sayd suÌ„mes put there in suche cases suche solucions that as thou thynkest hurte conscience / rather than to gyue any light to it / specially as in this realme ¶ Sudent I thynke no defaute in them / but I thynke that they were righte well charitably occupied to take so greate payn labour as they dyd therin for the welthe of the people clerynge of theyr consciences / for they haue therby gyuen a righte greate light in conscience to all countreys where the lawe Ciuile the lawe Canon be vsed to temporall thynges But as for the lawes of this realme they knewe them nat ne they were nat bounde to know theÌ„ / if they had knowen them it wolde litell haue holpen for the countreys that they mooste specially made theyr treatices for / in this countrey also they be right necessary moche profitable to all men for suche doutes as ryse in conscience in diuers other maners nat concernyng the lawe of the realme And I meruayle greatlye that none of them that in this realme are most bounden to do that in them is to kepe the people in a right iugement in a clerenes of conscience haue done no more in tyme past to haue the lawe of the realme knoweÌ„ than they haue done / for though ignoraÌ„ce may somtyme excuse / yet the knowlege of the trouth the true iugemente is moche better / somtyme though ignorauÌ„ce excuseth in parte it excuseth nat iÌ„ all / therfore me thiÌ„keth they dyd very well if they wolde yet be callers on to haue that poynt reformed as shortly as they could And now bycause thou haste well satisfied my minde in many of these questions that I haue made I purpose for this tyme to make an ende ¶ Doctour I praye the yet shewe me or that thou make an ende mo of the cases that after thyne oppynion be set in diuers bokes for clerynge of conscience that as thou thynkest for lacke of knowynge of the lawes of the realme do rather blynde conscience than gyue a light vnto it / for if it be so than surely as thou haste sayde it wolde be reformed / for I thynke veryly the lawes of the realme iÌ„ many cases muste in this realme be obserued as well in conscieÌ„ce as in the iudiciall courtes of the realme ¶ StudeÌ„t I will with good will shewe to the shortely some other questions that be made in the sayde summe to gyue the other occasion to se therin the oppinions of the
before the law of god And it is writteÌ„ iÌ„ the hert of euery man techynge hym what is to be done what is to be fled And bycause it is written in the herte / therfore it may nat be put away / ne it is neuer chauÌ„geable by no dyuersitie of place ne tyme. And therfore agaynste this lawe prescripcioÌ„ / statute / nor custome may nat preuayle / and if any be brought in agaynst it they be no prescripcions statutes nor customes / but thynges voyd agaynst iustice And al other lawes aswell the lawes of god as to the actes of men as other be grounded therevpon ¶ Student syth the lawe of reason is written in the herte of euery man / as thou haste sayde before techynge hym what is to be done what is to be fled / the which thou sayste maye neuer be put out of the herte / what neded it than to haue any other lawe brought in to ordre the actes dedes of the people ¶ Doctoure though the lawe of reason maye nat be chaunged nor hollye put away neuertheles before the lawe written it was greatly lette and blynded by euyll customes by many synnes of the people beside the originall synne / in so moche that it myghte hardly be discerned what was rightwyse what was vnrightwyse / what good what euyll / wherfore it was necessarye for the good ordre of the people to haue many thynges added to the law of reason aswel by the Churche as by seculer prynces accordynge to the maners of the countre of the people / where suche additions shuld be excersised And this lawe of reason differeth fro the lawe of god in two maners / for the lawe of god is gyuen by reuelacioÌ„ of god / this lawe is gyuen by a naturall light of vnderstandyng And also the law of god ordereth a man of it selfe by a nighe way to the felicitie that euer shall endure And the lawe of reason ordered a man to the felicitie of this lyfe ¶ Student but what be tho thynges that the lawe of reason techeth to be done / what to be fled / I pray the shewe me ¶ Doctoure the law of reason techeth that good is to be loued euyll is to be fled Also that thou shalte do to another that thou woldest another shulde do to the. Also that we may do nothyng agaynste trouth Also that a man muste lyue peacefully with other That iustice is to be done to euery man that wronge is nat to be done to any maÌ„ And also that a trespasser is worthy to be punisshed suche other / of the whiche folow diuers other secundarie coÌ„maundemeÌ„tes the whiche be as necessarie conclusions deriuied of the fyrste / as of that coÌ„maundement that good is to be beloued it foloweth that a man shall loue his benefactour for a benefactour in that he is a benefactour includeth in hym a reason of goodnes for els he ought nat to be called a benefactour / that is to say a good doer but an euyll doer And so in that he is a benefactour / he is to be beloued in all tymes / in all places And this lawe also suffereth many thinges to be done / as that it is lawful to put away force with force And that it is lawfull for euery maÌ„ to defende hym selfe his goodes agaynst an vnlawfull power And this lawe renneth with euery maÌ„nes lawe / also with the lawe of god as to the dedes of man / muste be always kept obserued / and shall alwaye declare what ought to folo vpon the generall rewles of the lawe of man / shall restrayn theÌ„ if they be in any thynge contrary vnto it And here it is to be vnderstaÌ„de / that after some men / that lawe wherby all thynges were in coÌ„mon was neuer of the lawe of reason / but onely in the tyme of extreme necessitie For they saye that the lawe of reason may nat be chauÌ„ged / but they say it is euident that the law wherby all thiÌ„ges shulde be in coÌ„mon is chauÌ„ged / wherfore they conclude that it was neuer the lawe of reason ☞ Of the lawe of god The .iii. Chapitre DOctoure the lawe of god is a certayne lawe gyuen by reuelacion to reasonable creature shewynge hym the wyl of god / wyllyng that creature reasonable to be bounde to do a thyng or nat to do it for optaynynge of the felicitie eternall And it is sayde for the optaynyng of the felicitie eternall to exclude the lawes shewed by reuelacion of god for the politicall rewle of the people the whiche be called Iudicials for a lawe is nat proprely called the law of god bycause it was shewed by reuelacion of god / but also because it directeth a maÌ„ by the nerest way to the felicitie ternall as beÌ„ the lawes of the olde Testament that be called Morals / the lawe of the EuaÌ„gelistes the whiche were shewed in moche more excelleÌ„t maner theÌ„ the lawe of the olde Testament was for that was shewed by the mediacion of an Aungell But the lawe of the EuaÌ„gelistes was shewed by the mediacion of our lorde Iesu Christe god an man / the lawe of god is alwaye rightwyse iuste / for it is made gyuen after the wyll of god And therfore all actes dedes of man be called rightwyse iuste when they be done accordynge to the lawe of god be coÌ„formable to it Also somtyme a lawe made by man is called the lawe of god As when a lawe taketh his principall grounde vpon the lawe of god / is made for the declaracion or coÌ„seruacion of the faythe / to put away heresyes / as diuers lawes CannoÌ„s also diuers lawes made by the common people somtyme do The whiche therfore are rather to be called the law of god / theÌ„ the lawe of man / yet neuerthelesse all the lawes CaÌ„noÌ„ be nat the lawes of god For many of them be made onely for the politicall rewle conuersation of the people whervpon IohnÌ„ Gerson in the treatyse of the spirituell lyfe of the soule the secoÌ„de Lesson / the thyrde cororally sayth thus all the CaÌ„nons of Popes nor theyr decres be nat the lawe of god For many of them be made onely for the political coÌ„uersacioÌ„ of the people And if any maÌ„ wyll saye be nat all the goodê of the Churche spirituel For they beloÌ„ge to the spiritualitie leed to the spiritueltie / we answere that in the hole politicall coÌ„uersacion of the people / there be some specially deputed dedicate to the seruice of god / the whiche moste specially as by an excelleÌ„cie are called spirituell meÌ„ as religious meÌ„ are And other though they walke in the way of god / yet neuertheles because theyr office is moste specially to be occupyed aboute such thynges as pertayne to the coÌ„mon welth / to the good ordre of the people / they be therfore
called seculer men or lay men / neuertheles the goodê of the fyrst may no more be called spirituell / theÌ„ the goodes of the other for they be thynges mere temporall kepyng the body as they do in the other And by lyke reason lawes made for the politicall ordre of the Churche be called many tyme spirituell / or the lawes of god Neuerthelesse it is but vnproprely other be called Ciuile or the law of man And in this poynt many be ofttymes deceyued / also deceyue other / the whiche Iuge tho thynges to be spirituell / the whiche al meÌ„ know be thiÌ„ges materiall carnal These be the wordes of IohnÌ„ Gerson in the place alleged before Furthermore besyde the lawe of reason the lawe of maÌ„ it was necessarie to haue the lawe of god for foure reasons The fyrste because man is ordeyned to the ende of eternal felicite the whiche excedeth the proportion facultie of maÌ„nes power Therfore it was necessarie that beside the law of reason the lawe of man he shulde be directed to his ende by a lawe made of god Seconde for asmoche as for the vncerteinte of maÌ„nes IugemeÌ„t specially of thynges ê‘ticuler seldoÌ„ falliÌ„g It hapeneth oft tymes to folowe diuers Iugementes of diuers men / also diuersities of lawes / therfore to the entent that a man without any doubte maye knowe what he shulde do / and what he shulde nat do It was necessary that he shulde be directed in all his dedes by a lawe heuenly gyuen by god / the whiche is so apparante that no man maye swarue fro it as is the lawe of god Thyrdly man may onely make a lawe of suche thynges as he may Iuge vpon / the Iugement of man may nat be of inwarde thynges / but onely of outwarde thynges / neuertheles it belongeth to perfeccion that a man be well ordered in bothe / that is to say / aswel inwarde as outwarde Therfore it was necessary to haue the law of god / the which shulde ordre a man aswell of inwarde thynges as of outwarde thynges The fourth is bycause as saint Augustyn sayth in the fyrste boke of fre arbitrement / the lawe of man maye nat punisshe all offences for if all offences shulde be punisshed / the coÌ„mon welth shulde be hurte as it is of coÌ„tractes for it can nat be auoyded / but that as loÌ„ge as contractes be suffered many offences shall folowe therby / yet they be suffered for the coÌ„mon welthe And therfore that no euyll shulde be vnpunysshed / it was necessary to haue the law of god that shulde leue no euyll vnpunisshed ☞ Of the lawe of man ∴ The .iiii. Chapitre DOctoure The law of maÌ„ the which somtyme is called the lawe positiue is deriuied by reason as a thynge whiche is necessarily probably folowyng of the lawe of reason / of the lawe of god And that is called probable that appereth to many specially to wyse men to be trewe And therfore in euery lawe positiue well made is somwhat of the lawe of reason / of the lawe of god to discerne the lawe of god the lawe of reason fro the law positiue is very harde / thoughe it be harde yet it is moche necessary in euery morall doctryne / in all lawes made for the common welth And that the lawe of man be Iuste rightwyse / two thynges be necessary / that is to say / wysdome auctorite wysdome that he may Iuge after reason / what is to be done for the coÌ„minaltie / and what is expedient for a peasible conuersacion / necessary sustentacion of theÌ„ Auctoritie that he haue auctoritie to make lawes For the lawe is named of Ligare that is to say / to bynde But the sentence of a wyse man dothe nat bynde the coÌ„minalte / if he haue no rewle ouer them Also to euery good lawe be requyred these propreties that is to saye that it be honeste / rightwyse / possible in it selfe / after the custome of the countre / conueniente for the place tyme / necessary / profitable / also manifeste that it be nat capcious by any darke senteÌ„ce ne myxte with any pryuate welth / but all made for the coÌ„mon welth And after saynt Bryget in the fourth boke in the C. xxix Chapitre / euery good law is ordeyned to the helthe of the soule to the fulfillinge of the lawes of god to enduce the people to flye euill desyres to do good warkê Also as the cardinal of Camer writtet what so euer is rightwyse in the lawe of maÌ„ is rightwyse in the law of god / for euery maÌ„nes lawe muste be coÌ„sonant to the law of god And therfore the lawes of prynces / the commaundemeÌ„tes of prelates / the statutes of coÌ„mynalties / ne yet the ordinaunce of the Churche is nat rightwyse nor obligatorie / but it be coÌ„sonant to the law of god And of suche a law of man that is consonant to the law of god / it appereth who hath righte to laÌ„des goodes / who nat for what so euer a man hath by suche lawes of maÌ„ he hath rightwyslye And what so euer is had agaynst suche lawes is vnrightwyslie had For lawes of maÌ„ nat contrary to the law of god / nor to the lawe of reason muste be obserued in the lawe of the soule / and he that dispiseth theÌ„ dispiseth god resisteth god And furthermore as Gracian sayth because euyll men fere to offende for fere of payne Therfore it was necessary that diuers paynes shulde be ordeyned for dyuers offences / as Phisicions ordayne dyuers remedyes for seuerall disseases And suche paynes be ordeyned by the makers of lawes after the necessitie of the tyme / and after the disposicioÌ„ of the people And thoughe that lawe that ordeyneth suche paynes hath therby a confermitie to the law of god for that the law of god coÌ„mauÌ„deth that the people shall take away euyl from amonge them selfe / yet they beloÌ„ge nat so moche to the lawe of god / but that other paynes staÌ„dyng the fyrste priÌ„ciples myghte be ordayned and appoynted / and therfore that is the law that is called moste proprely the lawe positiue and the law of man And the Phylosopher sayd in the thyrde boke of his Etykes / that the enteÌ„t of a maker of a lawe is to make the people good and to brynge them to vertue And though I haue somwhat in a generalitie shewed the whervpon the law of EnglaÌ„de is grouÌ„ded For of necessitie it muste be grouÌ„ded of the sayde lawes / that is to say of the lawe eternall / of the lawe of reason / of the lawe of god Neuerthelesse I pray the shewe me more specially wherevpon it is grounded as thou thynkest / as thou before haste promysed to do ¶ Student I wyll with good wyll doo therin that lyeth in me / for thou hast shewed me a righte playne a
lysteth may so accompte them / or if he wyll he may take theÌ„ for one grounde after his pleasure / of which maximes I shal hereafter shewe the parte ⧠Fyrst there is a maxime that escuage vncertayne maketh knyghtes seruice ⧠Also there is another maxime that escuage certayne maketh socage ⧠Also that he that holdeth by castelgarde / holdeth by knyghtes seruice / but he holdeth nat by escuage And that he that holdeth by .xx. s. to the garde of a castell holdeth by socage ⧠Also there is a maxime that a disceÌ„t taketh awaye an entre ⧠Also that no prescripcion in laÌ„des maketh a ryght ⧠Also that a prescripcion of rente of profites aprendre out of lande maketh a ryghte ⧠Also that the limitacioÌ„ of a ê‘scripcioÌ„ generally takeÌ„ is froÌ„ the tyme that no maÌ„nes mynde renuyth to the contrarie ⧠Also that assignes may be made vpoÌ„ laÌ„des gyueÌ„ in fee for terme of lyfe / or for tme of yeres though no meÌ„cioÌ„ be made of assignes / the same lawe is of a rent that is grauÌ„ted / but otherwyse it is of a waraÌ„tie of a couenaunte ⧠Also that a condicion to auoyde a freholde can nat be pleaded without dede / but to auoyde a gyft of a chatel it may be pleaded without dede ⧠Also that a release or a confirmacion made by hym that at the tyme of the release or coÌ„firmacion made had no ryghte is voyde in the law / though a righte come to hym after / except it be with warrauÌ„tye / theÌ„ it shall barre hym of all right that he shall haue after the warrauÌ„tye made ⧠Also that a right or title of accioÌ„ that onely dependeth in accion can nat be gyueÌ„ nor graunted to none other but onely to the tenaunt of the grouÌ„de / or to hym that hath the reuercion or remayndre of the same lande ⧠Also that in an accion of dette vpon a contracte the def maye wage his law / but otherwyse it is vpoÌ„ a lease of laÌ„des for terme of yeres or at wyll ⧠Also that if an exigent in case of felonye be awarded agaynste a man he hathe therby forthwith forfeted his goodes to the kynge ⧠Also if the sone be attaiÌ„ted in the lyfe of the father / and after he purchaseth his Chartour of pardon of the kynge / after the father dyed In this case the laÌ„de shall Eschete to the lorde of the fee in so moche that that though he haue a yoÌ„gerbrother yet the laÌ„de shall nat discende to hym / for by the atteyndre of the elder brother the blode is corrupte the father in the lawe dyed without heyre ⧠Also if an Abbot or a Priour alyene the landes of his house dyed / in that case though his successour haue right to the laÌ„de / yet he may nat entre but he muste take his accioÌ„ that is appoynted hiÌ„ by the law ⧠Also there is a maxime iÌ„ the law that if a villayne purchase landes the lord entre / he shall enioye the laÌ„de as his owne / but if the villayne alyene before the lorde entre / that alienacion is good And the same law is of goodes ⧠Also if a maÌ„ stele goodes to the value of .xii. d. or aboue it is felonye / and he shall dye for it And if it be vnder the value of .xii. d. then it is but petite larcinie he shall nat dye for it / but shal be otherwyse punysshed after the discrecioÌ„ of the Iuges except it be takeÌ„ fro the person / for if a maÌ„ take any thynge howe lytell so euer it be / from a maÌ„nes ê‘son felonously / it is called roberye he shall dye for it ⧠Also he that is areyned vpon an InditemeÌ„t of felonie shal be admitted iÌ„ fauoure of lyfe to chaleÌ„ge .xxxv. iurours pereÌ„torily but if he chaleÌ„ge any aboue that nombre / the law taketh hiÌ„ as one that hath refused the law because he hath refused thre hole enquestes / therfore he shal dye but with cause he may chaleÌ„ge as many as he hath cause of chaleÌ„ge to And further it is to be vnderstaÌ„de that suche peremtorie chaleÌ„ge shall nat be admitted in appeale because it is at the suyt of the partie ⧠Also the lande of euery man is in the law enclosed froÌ„ other though it lye iÌ„ the opeÌ„ felde And therfore if a maÌ„ do a trespas theriÌ„ the writ shal be quare clausuÌ„ fregit ⧠Also that reÌ„tes / coÌ„mons of pasture of turbary reuercioÌ„s remayndres / nor suche other thyngê which lye nat in manuell occupacioÌ„ may nat be gyuen nor grauÌ„ted to none other without writtynge ⧠Also that he that recouereth dette or damages in the kynges court by suche an accioÌ„ within a Capias lay in to the ê“cesse may withiÌ„ a yere after the recouerie haue a Capias ad satisfacienduÌ„ to take the bodye of the defendauÌ„t to coÌ„mit hiÌ„ to pryson tyll he haue payd the dette damagê but if there lay no Capias iÌ„ the fyrst accioÌ„ theÌ„ the pleyntyfe shall haue no Capias ad satisfacieÌ„duÌ„ / but muste take a Fierifacias or an Elegit withiÌ„ the yere or a Scire facÌ„ aft the yere or within the yere if he wyll ⧠Also if a release or confirmacioÌ„ be made to hym that at the tyme of the release made had no thynge in the laÌ„de cÌ„ the release or coÌ„firmacioÌ„ is voyde except certaiÌ„ cases as to vouchye certayne other whiche nede nat here to be remembred ⧠Also there is a maxime in the lawe of Englande that the kynge may dissease no maÌ„ / ne that no maÌ„ may dissease the kynge ne pull any reuercyon or remayndre out of hym ⧠Also the kynges excelleÌ„cie is so hygh in the law that no freholde may be gyuen to the kynge ne be deriuied from hym / but by matter of recorde ⧠Also there was somtyme a maxime a lawe in Englande that no man shulde haue a writte of right but by special suyt to the kynge And for a fyne to be made in the ChauÌ„cerie for it / but these maximes be chauÌ„ged by the statute of Magna carta the .xvi. Chapi where it is sayd thus Nulli negabimê° nulli vendemus rectum vel iusticiam And by the wordes nulli negabimus / a maÌ„ shall haue a writte of righte of course in the ChauÌ„cerie without suynge to the kynge for it And by the wordes nulli vendemê° He shall haue it without fyne and so many tymes the olde maximes of the law be chaunged by statutes ⧠Also though it be reasonable that for the many solde diuersities of accions that be in the lawes of Englande / that there shulde be diuersities of processe as in the reale accions after one maner / in personall accions after another maner yet it can nat be proued merely by reason that the same processe ought to be had none other / for by statute it might be altered And so
the grouÌ„de of the sayde processe is to be referred onely to the maximes customes of the realmes And I haue shewed the these maximes before reherced / nat to the inteÌ„t to shew the specially what is the cause of the law in theÌ„ / for that wolde aske a great respite / but I haue shewed them onely to the inteÌ„t that thou mayste perceyue that the sayde maximes other lyke may conueniently be sette for one of the groundes of the lawes of Englande / moreouer there be diuers cases / wherof I am in doute whether they be onely maximes of the lawe or that they be grounded vpoÌ„ the law of reason / wherin I pray the let me here thyn opinion ¶ Doctoure I pray the shewe those cases that thou meanest I shall make the answere therin as I shall se cause ☞ Hereafter foloweth diuers cases wherein the Student douteth whether they be onely maximes of the law or that they be grounded vpon the lawe of reason The .ix. Chapitre STudeÌ„t The law of EnglaÌ„de is that if a man coÌ„maunde another to do a trespasse he doth it / that the coÌ„mauÌ„dour is a trespasser And I am in doute whether that be onely by a maxime of the law / or that it be by the law of reason ⧠Also I am in doute vpon what law it is grounded that the Accessory shall nat be put to answere before the principal cÌ„ ⧠Also the lawe is that if an Abbot bye a thyng that commeth to the vse of the howse dyed that his successours shal be charge / I am somwhat in doute vpon what grounde that lawe dependeth ⧠Also that he that hathe possession of lande though it be by disseason hath right agaynste all men / but agaynste hym that hath ryghte ⧠Also that if an accion reall be sued agaynste any man that hath nothyng iÌ„ the thynge demaunded he writte shall abate as at the coÌ„mon lawe ⧠Also that the alienacioÌ„ of the tenauÌ„t hangynge the writ nor his entre in to religion / or if he be made a knyghte / or if she be a woman take an husbaÌ„de hangyng the writ / that the writ shall nat abate ⧠Also if lande rent that is goyng out of the same laÌ„de come in to one maÌ„nes haÌ„de of lyke estate lyke suertye of tytle / the rent is extincte ⧠Also if lande discende to hiÌ„ that hath right to the same lande before / he shal be remitted to his better tytle if he wyll ⧠Also if two tytles be concurraÌ„t togyther / the eldest tytle shal be preferred ⧠Also that euery man is bounde to make recompence for suche hurte as his beastes shall do in the corne or grasse of hys neyghboure though he knowe nat that they were there ⧠Also if the drmaundauÌ„t or playntyfe hangynge his writte wyll entre in to the thynge demauÌ„ded this writte shall abate And it is many tymes very harde and of great difficultie to knowe what cases of the lawe of Englande be grounded vpon the law of reason / what vpon custome of the realme / thoughe it be harde to discusse it yet is very necessary to be knoweÌ„ for the knowele of the parfyte reason of the lawe / if any man thynke that these cases before reherced be grounded vpon the lawe of reason / then he maye referre them to the fyrste grounde of the lawe of Englande whiche is the lawe of reason / wherof is made mencion in the .v. Chepi And if any man thynke that they be grouÌ„ded vpon the law of custome / then he may referre them to the maximes of the lawe / whiche be assigned for the thyrde grounde of the law of Englande / wherof mencion is made in the .viii. Chapitre as before appereth ¶ Doctoure But I praye the shewe me by what auctoritie is it proued in the lawes of EnglaÌ„de that the cases that thou haste put before in the .viii. Chapitre / and suche other whiche thou callest maximes oughte nat to be denyed / but ought to be taken as maximes / for sythe they can nat be proued by reason as thou agreest thy selfe they can nat / they may as lightly be denied as affermed onles there be some sufficient auctoritie to approue theÌ„ ¶ Student Many of the customes maximes of the lawes of Englande be knowen by the vse and the custome of the realme so apparantly that it nedeth nat to haue any law written therof / for what nedeth it to haue any law written that the eldest sone shall enherite his father / or that all the doughters shall enherite togyther as one heyre / if there be no sone / or that the husbande shall haue the goodes chatels of his wyfe that she hath at the tyme of the spouselles or after / or that a bastarde shall nat enheryte as heyre / or that executours shall haue the disposicion of all the goodes of theyr testatoure if there be no executours that the ordinarie shall haue it / that the heyre shall nat medled with the goodes of his auncestre but any particuler custome helpe hym The other maximes customes of the law that be nat so openly knowen amonge the people maye be knowen partly by the lawe of reason partly by the bokes of the lawes of EnglaÌ„de called yeres of termes / partly by diuers recordes remaynynge in the kynges courtes in his tresorie And specially by a boke that is called the regestre / also by diuers statutes wherin many of the sayde customes / maximes be ofte resited / as to a diligeÌ„t sercher wyll euideÌ„tly appere ☞ Of the .v. grounde of the lawe of Englande The .x. Chapitre STudent The .v. grouÌ„de of the law of Englande standeth in diuers particuler customes vsed in diuers countres townes / cyties / lordshyppes in this realme / the whiche ê‘ticuler custome because they be nat agaynste the lawe of reason / nor the law of god / though they be agaiÌ„st the sayde generall customes or maximes of the law yet neuertheles they stande in effecte and be taken for law / but if it ryse iÌ„ question in the kynges courtes whether there be any suche ê‘ticuler custome or nat it shal be tryed by .xii. men / nat by the Iuges / except the same particuler custome be of recorde in the same courte Of whiche particuler customes / I haue hereafter noted some for an example ⧠Fyrste there is a custome in KeÌ„t that is called Bauelkynde / that al the bretherne shall enherit togyther as systers at the common lawe ⧠Also there is another particuler custome / that is called burgheÌ„glisshe wher the yoÌ„ger sone shall enheryte before the eldest that custome is in Notynghame ⧠Also there is a custome in the cytie of LoÌ„don that fre meÌ„ there / may by theyr testameÌ„t inrouled byqueth theyr laÌ„des that they be seased of to whome they wyll / except to mortmayn And if they be cytizieÌ„s
fre men / then they may also byqueth laÌ„des to mortmayne ⧠Also in gauelkynde though the father be hanged the sone shal enheryt / for theyr custome is the father to the bough / the son to the ploughe ⧠Also in some countres the wyfe shall haue the halfe of the husbandes landes in the name of her dowrye as longe as she lyueth sole ⧠Also in some couÌ„tre the husbaÌ„de shall haue the halfe of the enheritauÌ„ce of hê wyfe / though he haue no yssue by her ⧠Also in some couÌ„tre an Infante when he is of the age of .xv. yere maye make a feoffement / and the feoffement good And in some countre when he can mete an elle or clothe ∴ ☞ Of the .vi. grounde of the lawe of Englande The .xi. Chapitre STudent The .vi. grouÌ„de of the lawe of EnglaÌ„de standeth in dyuers statutes made by our soueraygne lord the kynge his progenitours / by the lordes spiritual temporall / the coÌ„mons in diuers parlyamentes in suche cases where the law of reason / the law of god / customes / maximê / ne other grouÌ„des of the law semed nat to be sufficieÌ„t to punysshe euyll meÌ„ / to rewarde good meÌ„ And I remeÌ„bre nat that I haue sene any other grouÌ„des of the law of EnglaÌ„de / but onely these that I haue before remeÌ„bred Furthermore it appereth of that I haue sayd before that oft tymes two or thre grouÌ„des of the lawe of EnglaÌ„de must be ioyned togyther / or that the playntyfe caÌ„ open declare his right / as it may appere by thê example If a maÌ„ entre in to another maÌ„nes lande by force after maketh a feffemeÌ„t for maiÌ„tenauÌ„ce to defraunde the pleyntyfe froÌ„ his accion In this case it appereth that the sayd vnlawfull entre is ê“hibite by the law of reason / but the playntyfe shall recouer treble damages / that is by reason of the statute made in the .viii. yere of kyng Henry the .vi. the ix Cha. And that the dammages shal be seased by .xii. men that is by the custome of the realme And so in this case .iii. grouÌ„des of the law of Englande mayntene the playntyfes accion And so it is in diuers other cases that nede nat to be remeÌ„bred now thus I make an ende for this tyme / to speke any ferther of the groundes of the lawe of Englande ¶ Doctoure I thaÌ„ke the for the greate payne that thou haste takeÌ„ therin / neuertheles for as moche as it appereth that thou haste sayde before that the lerned men of the lawe of Englande pretende / to veryfie that the law of Englande wyll nothynge do / ne attempte agaynst the law of reason / nor the law of god / I pray the aÌ„swere me to some questioÌ„s grouÌ„ded vpoÌ„ the law of EnglaÌ„de howe as the thynketh the law may staÌ„de with reason or coÌ„scieÌ„ce in theÌ„ ¶ StudeÌ„t Put the case I shal make answere theriÌ„ as well as I can ☞ The fyrst question of the Doctoure of the lawe of Englande and conscieÌ„ce The .xii. Chapitre DOctoure I haue harde say / that if a man that is bouÌ„de in an obligacioÌ„ paye the money but he taketh no acquitaunce or if he take one it happeneth hiÌ„ to lese it / that in that case he shall be compelled by the lawes of Englande to paye the money agayne / howe maye it be sayd then / that that law staÌ„deth with reason or conscience / for as it is grounded vpon the law of reason that dettes ought of right to be payde / so it is grouÌ„ded vpon the law of reason as me semeth that wheÌ„ they be payde that he that payed them shulde be discharged ¶ Student Fyrste thou muste vnderstande that it is nat the law of EnglaÌ„de / that if a maÌ„ that is bouÌ„de in an obligacion pay the money without acquitaunce / or if he take acquitauÌ„ce lese it that therfore the law determineth that he ought of right to paye the money eftesones / for that lawe were bothe agaynste reason conscience / but trougth it is that there is a generall maxime in the lawe of Englande / that in an accion of dette sued vpon an obligacion / the defendaunt shall nat plede that he oweth nat the money / ne can in no wyse discarge hiÌ„slefe in that accion / but he haue acquitaunce or some other writtynge sufficiente in the lawe or some other thynge lyke / witnessynge that he hath payde the money / that is ordayned by the law to auoyde a great inconuenience that els myght happen to come to many people that is to say that euery maÌ„ by a nude paroll and by a bare auerment shulde auoyde an oblygacyon / wherfore to auoyde that inconuenience the law hath ordayned that as the defendauÌ„t is charged by a sufficieÌ„t writting / that so he must be discharged by sufficieÌ„t writtynge / or by some other thynge of as hygh auctoritye as the obligacion is And though it may folowe thervpon that in some particuler case a man by occasion of that generall maxime may be compelled to pay the money agayne that he payde before / yet neuertheles no defaute can be therfore assigned in the law For lyke as makers of lawes take hede to suche thynges as maye oft fall / and do moste hurte amonge the people rather theÌ„ to particuler cases So in lykewyse the generall groundes of the lawe of Englande / hede more what is good for many / then what is good for one singuler person onely And because it shulde be a hurte to many / if an obligacion shulde be so lightly auoyded by worde Therfore the law specially preueÌ„teth that hurte vnder suche maner as before appereth And yet intendeth nat / nor commauÌ„deth nat that the money of ryghte ought to be payde agayne / but setteth a general rule / whiche is good and necessary to all the people / that euery man maye well kepe / without it be through his owne defaute / if suche defaut happen in any persone / wherby he is without remedie at the common lawe yet he may be holpen by a Subpena / so he maye in many other cases where conscieÌ„ce serueth for hym / that were to loÌ„ge to reherce now ¶ Doctour But I praye the shewe me vnder what maner a maÌ„ may beholpen by conscience And whether he shal be holpeÌ„ in the same courte or in an other ¶ Student Because it can nat be well declared where a maÌ„ shal be holpen by conscience where nat / but it be fyrst knowen what conscience is therfore because it perteyneth to the moste proprelye / to treate of the nature and qualitie of conscience / therfore I praye the that thou wylte make me some brief declaracion of the nature qualitie of conscieÌ„ce and then I shall answere to thy question as well as I caÌ„ ¶ Doctour I wyll with good wyll do as thou sayste / to the inteÌ„t that thou mayste the
grouÌ„de to make reparacions But the cause there as I suppose is for that the mynde of the makers of the sayde estatute shal be taken to be that / that case shulde be excepted And in all these cases the parties shal be holpen in the same courte by the comon lawe And thus it appereth that somtyme a man may be excepted fro the rigoure of a maxine of the lawe by another maxime of the lawe And somtyme fro the rigoure of a statute by the lawe of reason and som tyme by the intent of the makers of the statute but yet it is to be vnderstande that moste coÌ„monly where any thynge is excepted fro the generall customes or maximes of the lawes of the realme By the lawe of reason the partie must haue his remedie by a wryt that is called Sub pena yf a Subpena lye in the case but where a Subpena lyeth / and where nat it is nat our intent to treate of at this tyme. And in some case there is no remedye for suche an equytie by way of compulsion / but all the remedye therin muste be coÌ„mitted to the coÌ„science of the partie ¶ Docto r but in case where a Sub pena lyeth to whom shal it be directed whether to the Iuge or to the partie ¶ Stud It shall neuer be directed to the Iuge / but to the ê‘tie pleintyfe or to his attorney therupon an iniuÌ„ction coÌ„maundynge them by the same vnder a certayne payne therin to be coÌ„teyned that he ê“cede no ferther at the comon lawe / tyll it be determined in the kynges chauncerye whether the pleyntyfe hathe tytle in conscience to recouer or nat And whan the pleyntife by reason of suche an iniuÌ„ction seasseth to aske any ferther processe the Iuges wyll in lykewyse seasse to make any ferther ê“cesse in that behalfe ¶ Doctour Is there any mencion made in the lawes of Englande of any suche equyties ¶ Stud Of this terme equytie to that intent that is spoken of here there is no mencion made in the lawes of Englande / but of an equytie dyriuyed vpon certayne statutes mencion is made many tymes often in the lawe of Englande But that equytie is all of another effecte then this is / but of the effecte of this equytie that we nowe speke of meÌ„cion is made many tymes / for it is ofte tymes argued in the lawe of Englande where a Sub pena lyeth where nat and dayly bylles be made by men lernyd in the lawe of the realme to haue Sub penas And it is nat prohybite by the lawe / but that they may well do it so that they make them nat but in case where they ought to be made nat for vexacion of the partie / but accordynge to the trouth of the mater And the lawe wyl in many cases that there shal be suche remedye in the chauncerye vpon diuers thynges groundyd vpon suche equyties / and than the lorde Chanceller must ordre his conscieÌ„ce after the rules grouÌ„des of the lawe of the realme / in so moche that it had nat ben moche inconuenient to haue assigned suche remedye in the chauncerye vpon suche equyties for the .vii. grouÌ„de of the lawe of Englande / but for as moche as no recorde remaynethe in the kynges courtes of no suche bylle ne of the wrytte of Sub pena or Iniunction that is suyd thervpon therfore it is nat sette as for a speciall grouÌ„de of the law / but as a thinge that is suffred by the lawe ¶ Doc. Then sythe the parties oughte of ryght in many cases to be holpen in the chauncerye vpon suche equyties It semeth that if it were ordeyned by stutute / that there shulde be no remedye vpon suche equyties in the chauncerye nor in none other place / but that euery mater shulde be orderyd onely by the rules grouÌ„des of the comon lawe that that statute were agaynst ryght and coÌ„science ¶ StudeÌ„t I thynke the same / but I suppose there is no suche statute ¶ Doc. There is a statute of that effecte as I haue herde saye / wherin I wolde gladly here thy oppinion ¶ Student Shewe me that statute I shall with good wyll saye as me thynketh therin ¶ Whether the statute herafter reherced by the doctoure be agaynste coÌ„scieÌ„ce or nat The .xviii. Chapitre DOctoure There is a statute made in the .iiii. yere of kynge Henry the fourth the .xxii. chapitre / wherby it is enacted that iugementes gyuen in the kynges courtes / shall nat be examined in the chauncerye / parliameÌ„t / nor els where / by whiche statute it apperyth that if any iugement be gyuen in the kynges courtes agaynst an equytie or agaynst any mater of conscience / that there can be had no remedye by that equytie / for the iugement can nat be reformed wtout examinacion / and the examinacion is be the sayd statute prohibit wherfore it semyth that the sayd statute is agaynst coÌ„science / what is thyn oppinion therin ¶ Stud If iugemeÌ„tes gyuen in the kynges courtes shuld be examined in the chauncerye byfore the kyngê coÌ„ceyl or in any other place / the plaintifes or demandauntes shulde seldome come to the effecte of theyr suyte / ne the lawe shuld neuer haue ende And therfore to eschewe that incoÌ„uenice that statute was made And though peraueÌ„ture by reason of that statute / some singuler persone maye happen to haue losse Neuerthelesse the sayde statute is very necessarye to eschewe many great vexacions and iniust expences that wolde els come to many plaintifes that haue ryght wysely recouered in the kyngê courtes And it is moche more ê“uided for in the lawe of Englande that hurte nor damages shulde nat come to many than onelye to one And also the sayde statute doth nat ê“hybite equyte / but it ê“hybiteth only the examinacion of the iugement for the eschewynge of the incoÌ„uenieÌ„ce byfore reherced And so it semethe that the sayde statute standeth with good conscience And in many other cases where a man dothe wronge / yet he shall nat be coÌ„pellyd by waye of compulsion to reforme it / for many tymes it muste be lefte to the conscience of the partie / whether he wyll redresse it or nat And in suche case he is in coÌ„scieÌ„ce as well bounde to redresse it if he wyll saue his soule / as he were if he werre compellable therto by the lawe as it may appere in dyuers cases that maye be put vpon the same grounde ¶ Doctoure I pray the put some of those cases for an example ¶ Stud If the defendant wage his lawe in an accion of dette broughte vpon a true dette the pleintyfe hathe no meanes to come to his dette by waye of coÌ„pulsion / neyther by Subpena nor other wyse / yet the defendauÌ„t is bounde in conscieÌ„ce to pay hym Also if the grande Iury in attaynt afferme a false verdit gyuen by the pety Iurye there is no further remedy but the coÌ„scieÌ„ce of the
partie Also where there can be had no sufficieÌ„t prouffe / there can be no remedye in the Chauncerye / no more than there maye be in the spirituall courte And bycause thou haste gyuen an occasion to speke of conscience / I wolde gladly here thy oppynion where coÌ„scieÌ„ce shal be ruled after the lawe / and where the lawe shal be ruled after conscieÌ„ce ¶ Doc. And of that mater I wolde lykewyse gladly here thy oppinion / specially in cases grouÌ„dyd vpon the lawes of Enlgande / for I haue nat herde but lytell therof in tyme past / but byfore thou put any cases therof I wolde that thou woldest shewe me how those two questioÌ„s after thy oppinion are to be vnderstande ¶ Of what lawe this question is to be vnderstande that is to say / where coÌ„scieÌ„ce shal be ruled after the lawe The .xix. Chapitre STudent The lawe wherof mencion is made in this question that is to say where conscience shal be ruled by the lawe / is nat as me semeth to be vnderstande only of the lawe of reason / of the lawe of god / but also of the lawe of man that is nat contrary to the lawe of reason nor the lawe of god but that it is supperadded vnto them for the better orderynge of the comon welth / for suche a lawe of man is alwayes to be sette as a rule in coÌ„science so that it is nat lawful for no man to go fro it on the one syde ne on the other / for suche a lawe of man hath nat only the strength of mannes lawe / but also of the lawe of reason / or of the law of god / wherof it is dyriuied / for lawes made by man whiche haue receyued of god power to make lawes be made by god And therfore coÌ„scieÌ„ce muste be ordered by that lawe / as it muste be vpon the lawe of god / vpon the lawe of reason And ferthermore that lawe wherof meÌ„cion is made in the latter ende of the chapitre next byfore that is to saye in that question wherin it is asked where the lawe is to be lefte forsaken for conscience / is nat to be vnderstande of the lawe of reason nor of the lawe of god for tho two lawes maye nat be lefte / nor it is nat to be vnderstande of the lawe of man that is made in particuler cases / that is consonant to the lawe of reason / to the lawe of god / that yet that lawe shuld be lefte for coÌ„science for of suche a lawe made by man coÌ„scieÌ„ce muste be ruled / as is sayd byfore Nor it is nat to be vndepstaÌ„de of a lawe made by man coÌ„maundynge or prohybitynge any thynge to be done that is agaynste the lawe of reason or the lawe of god For if any lawe made by man / bynde any person to any thyng that is agaynste the sayd lawes / it is no lawe / but a corrupcion a manifeste errour Therfore after them that be lerned in the lawes of Englande / the sayde question that is to saye where the lawe is to be lefte for coÌ„science and where nat / is to be vnderstande in diuers maners after diuers rules / as here after shall somwhat be touched ¶ Fyrste many vnlerned persones byleue that it is lawfull for them to do with good conscience / all thynges whiche if they do them / they shall nat be punysshed therfore by the lawe / though the law doth nat warraunt them to do that they do / but onely when it is done doth nat for some reasonable coÌ„sideracion punysshe hym that dothe it / but leuyth it onely to his coÌ„science And therfore many persones do oft tymes that they shulde nat do / kepe as theyr owne that / that in coÌ„scieÌ„ce tey ought to restore / wherof there is in the lawes of Englande this case ¶ If two men haue a woode ioyntly / the one of them selleth the wood kepeth all the mony hollye to hym selfe In this case his felowe shall haue no remedye agaynste hym by the lawe / for as they whan they toke the woode ioyntlye put eche other in truste / were contented to occupy togyther so the lawe sufferyth them to ordre the profittes therof accordynge to the truste that eche of them put other in And yet if one toke all the profittes / he is bounde in coÌ„science to restore the halfe to his felowe for as the lawe gyueth hym ryght onlye to the halfe lande / so it gyueth hym ryght only in coÌ„scieÌ„ce to the halfe ê“fittes And yet neuertheles it can nat be sayd in that case / that the lawe is agaynst coÌ„science / for the lawe neyther wyllyth ne coÌ„maundyth that one shulde take all the ê“fittes / but leuyth it to theyr coÌ„science so that no defaute can be founde in the lawe / but in hym that taketh al the profittes to hym selfe may be assigned defaute / whiche is bounde in conscieÌ„ce to reforme if he wyll saue his soule / though he can nat be compelled therto by the lawe And therfore in this case other lyke / that oppinion which some haue / that they may do with coÌ„science all that they shal nat be punysshed for by the lawe if they do it / is to be lefte for coÌ„scieÌ„ce / but the lawe is nat to be lefte for conscience ☞ Addicion ⧠Also many men thynke that if a man haue laÌ„de that another hath tytle to / if he that hath the ryght shal nat by the accion that is gyuen hym by the law to recouere his ryght by recouere damagê / that then he that hath the lande is also discharged of damages in conscience and that is a great errour in conscience / for though he can nat be compelled to yelde the damagê by no mannes lawe / yet he is compelled therto by the lawe of reason by the lawe of god / wherby we be bounde to do as we wolde be done to / and that we shal nat coueyte our neyghbours good And therfore if tenant in tayle be disseased the disseasour dyeth seased / and then the heyre iÌ„ the tayle bryngeth a Formedon recoueryth the lande / no damages for the lawe gyueth hym no damage in that case yet the tenant by coÌ„scieÌ„ce is bounden to yelde damages to the heyre in tayle fro the dethe of his ancestre Also it is taken by some men / that the lawe muste be lefte for conscience where the lawe dothe nat suffre a man to denye that he hath byfore affermed in court of record / or for that he hath wylfully excluded hym selfe therof for some other cause / as if the doughter that is only heyre to her father wyll sue lyuerey with her suster that is bastarde / in that case she shall nat be after receyued to say that her suster is bastarde in so moche that if her suster take halfe the lande with her / there is no remedy agaynst her by the law And
no more there is of diuersite other estopelles / which were to loÌ„ge to reherce now And yet the partie that may take auantage of such an estopel by the lawe / is bouÌ„de in coÌ„science to forsake that auantage specially if he were so estopped by ignorance / and nat by his owne knowlege assent for thoughe the lawe iÌ„ suche cases gyueth no remedye to hym that is estopped yet the law iugeth nat that the other hath ryght vnto the thynge that is in variaunce bytwyxte them ¶ Also it is vnderstaÌ„de that the lawe is to be lefte for coÌ„scieÌ„ce / where a thynge is tryed fouÌ„de by verdit agaynst the trouth / for in the comon law the iugement muste be gyuen accordynge as it is pleaded tried lyke as it is iÌ„ other lawes / that the iugement muste be gyuen accordynge to that / that is pleaded proued ¶ Also it is vnderstande that the lawe is to be lefte for coÌ„science / where the cause of the lawe doth cease for whan the cause of the lawe dothe cease / the lawe also dothe cease in conscience / as apperyth by this case here after folowynge ☞ Addicion ⧠A man maketh a lease for terme of lyfe / after a stranger doth waste / wherfore the lesse briÌ„geth an accion of TrnÌ„s hath iugemeÌ„t to recouer damagê hauyng regarde to the treble damagê that he shal yelde to hym iÌ„ the reuercion And aft he in the reuercion byfore accion of waste sued dyeth so that the accion of waste is therby extincted / then the tenant for terme of lyfe though he may sue execucion of the sayd iugemeÌ„t by the lawe yet he may nat do it by conscience for in conscience he maye take no more then he is hurted by the sayd trespasse / bycause he is nat chargyd ouer with the treble damages to his lessoure ¶ Also it is vnderstande where a lawe is grounded vpon a presumpcion / for if the presumpcion be vntrue / then the lawe is nat to be holden in coÌ„science And nowe I haue shewed the somwhat howe that question that is to say where the lawe shal be ruled after coÌ„science I pray the shewe me whether there be nat lyke diuersities in other lawes bytwyxte lawe conscience ¶ Docto r Yes verely very many wherof thou haste recyted one byfore / where a thynge that is vntrue is pleaded ê“ued / in whiche case iugement muste be gyuen accordynge as well in the lawe Cyuile as in the lawe Canon And another case is that if the heyre make nat his inuentory / he shal be bounde after the lawe Cyuile to all the dettes though the goodes amount nat to so moche And the lawe Canon is nat agaynste that lawe / and yet in conscience the heyre whiche in the lawes of Englande is called an executour is nat in that case charged to the dettes / but accordiÌ„ge to the value of the goodes And nowe I pray the shewe me some cases where coÌ„scieÌ„ce shal be ruled after the lawe ¶ Stud. I wyll with good wyll shewe the somwhat as me thynketh therin ⧠Here foloweth dyuers cases where conscience is to be orderyd after the lawe The .xx. Chapitre STudent The eldest sone shall haue enioy his father landes at the comon lawe in conscience / as he shall in the lawe And in Burghenglysshe the yonger sone shall enioy the inheritaunce / that in conscience And in Gauelkynde all the soÌ„nes shall inherite the lande togyther as doughters at the comon lawe and that in coÌ„scieÌ„ce And there can be none other cause assigned why coÌ„science in the fyrste case is with the eldest brother / in the seconde with the yonger brother / and iÌ„ the thyrde case with all the bretherne But bycause the lawe of Englande by reason of diuers customes dothe somtyme gyue the lande hollye to the eldest sone / somtyme to the yongest / and somtyme to all ¶ Also if a man of his mere mocion make a feffemeÌ„t of two acres of lande lyenge in two seuerall shyres / maketh lyuerey of season in the one acre in the name of both In this case the feffe hath ryght but only to that acre wherof lyuerey of season was made / bycause he hath no tytle by the law but if bothe acres had ben in one shyre he had had good ryght to both And in these cases the diuersitie of the lawe makyth the diuersitie of conscience ¶ Also if a man of his mere mocion make a feffement of a maner sayth nat to haue to holde cÌ„ with the appurtynances / in that case the feffe hath right to the demesne landes to the rentes / if there be atturnament to the comon parteynynge to the maner / but he hath nother ryght to the aduowsons appendaunt if any be / nor to the vylleins regardant but if this terme with thapurtynauÌ„ces had ben in the dede / the feffe had had ryght in coÌ„science aswell to the aduowsons vylleins / as to the residue of the maner but if the kynge of his mere mocion gyue a maner with the appurtynaunces / yet the donee hath neyther ryght in lawe nor coÌ„science to the aduowsons nor vylleins And the diuersitie of the lawe in these cases maketh the diuersitie of conscience ¶ Also if a man make a lease for terme of yeres yeldynge to hym to his heyres a certayne rent vpon condicion that if the rent be behynde by .xl. dayes cÌ„ that then it shal be lawful to the lessour his heyres to rentre And after the rent is behynde the lessour askyth the rent accordynge to the lawe it is nat payd / the lessour dyeth his heyre entreth In this case his entre is lawfull bothe in lawe and conscience but if the lessoure had dyed byfore he had demauÌ„dyd the rent / and his heyre demauÌ„de the rent / bycause it is nat payde he rentreth / in that case his rentre is nat lawfull nother in lawe nor in conscience ¶ Also if the tenaunt in dower sowe her lande and dye byfore her corne be rype / that corne in conscience belongeth to her executours / nat to hym in the reuercion / but otherwyse it is in coÌ„science of grasse frutes And the diuersitie of the lawe makyth ther also the diuersitie in coÌ„science ¶ Also if a man seased of landes in his demesne as of fee / byquethyth the same by his last wyll to another and to his heyres and dyeth In thê case the heyre nat with staÌ„dynge the wyll hath ryght to the lande in conscience And the reason is bycause the lawe iugeth that wyll to be voyde and as it is voyde in the lawe / so it is voyde in conscience ¶ Also if a man graunte a rente for terme of lyfe and make a lease of lande to the same grauÌ„te for terme of lyfe / and the tenaunte alyeneth both in fee. In this case he in the reuercion hath good tytle to the lande /
both iÌ„ lawe coÌ„scieÌ„ce nat to the rent And the reason is bycause the lande by that alienacion is forfeyt by the lawe to hym iÌ„ the reuercion nat the rent ☞ Addicion ⧠Also if landes be gyuen to two men to a woman in fee / after one of the men entermarieth with the woman alieneth the lande dyeth In this case the woman hath ryght but onely to the thyrde parte / but if the man the woman had ben maryed togyther byfore the fyrste feffement / then the woman natwithstaÌ„dyng the alienacion of her husbande shulde haue had ryght in lawe coÌ„science to the one halfe of the lande And so in these two cases coÌ„scieÌ„ce doth folowe the lawe of the realme ¶ Also if a man haue two sones / one byfore spousellys another after spouselles / after the father dyeth seased of certayne landes In that case the yonger sone shall enioye the landes in this realme as heyre to his father bothe in lawe coÌ„scieÌ„ce And the cause is / bycause the sone borne after spousellys / is by the lawe of this realme the very heyre / and the elder sone is a bastard And of these cases and many other lyke in the lawes of Englande maye be formed the Silogisme of coÌ„science / or the true iugemeÌ„t of coÌ„science in this maner Sinderesis ministreth the maior thus Ryghtwysenesse is to be done to euery man vpon whiche maior the lawe of EnglaÌ„de ministreth the minor thus The inheritance bylongeth to the sone borne aft spouselles / nat to the sone borne byfore spouselles / then coÌ„science maketh the coÌ„clusion sayth therfore the inheritaunce is in coÌ„scieÌ„ce to be gyuen to the sone borne after spousellys And so in other cases infinite may be formed by the lawe the Silogisme or the ryght iugemeÌ„t of coÌ„scieÌ„ce wherfore they that be lernyd in the lawe of the realme say that in euery case where any lawe is ordeyned for the disposicion of landes goodes / whiche is nat agaynst the lawe of god / nor yet agaynst the lawe of reason / that that lawe byndeth all them that be vnder the lawe in the courte of coÌ„science / that is to say inwardly iÌ„ his soule And therfore it is somwhat to meruayle that spirituall men haue nat endeuored theÌ„selfe in tyme past to haue more knowlege of the kynges lawes then they haue done / or that they yet do for by the ignoraunce therof they be oft tymes ignorant of that / that shuld ordre them accordynge to ryght iustice / as well coÌ„cernyng theÌ„selfe as other that come to them for coÌ„ceyll And nowe for as moch as I haue answered to thy questions as well as I can I praye the that thou wylte shewe me thy oppinion in diuers cases formed vpon the lawe of Eglande wherin I am in doute / what is to be holden therin in conscience ¶ Doctoure Shewe me thy questions I wyll saye as me thynketh therin ¶ The fyrste question of the student The .xxi. Chapitre STudent If an infaunt that is of the age of .xx. yere and hath reason and wysdome to gouerne hymselfe selleth his lande with the money therof byeth other lande of greater value then the fyrst was taketh the ê“fittes therof / whether maye that infaunte aske his fyrste lande agayne iÌ„ coÌ„scieÌ„ce / as he may by the lawe ¶ Doctour What thynkest thou in that question ¶ Stud Me semeth that for as moche as the lawe of EnglaÌ„de in this article is grounded vpon a presumpcion / that is to saye that infauntes commonly afore they be of the age of .xxi. yeres be nat able to gouerne them selfe / that yet for as moche as that presumpcion fayleth iÌ„ this infauÌ„te that he may nat in this case with conscience aske the lande agayne that he hath solde to his great auauntage as byfore appereth ¶ Doc. Is nat this sale of the infaunte and the feffemeÌ„t made thervpon if any were voydable in the lawe ¶ Stud. Yes verylye ¶ Doc. And if the feffe haue no ryght by the bargayne / nor by the feffement made therupon wherby shulde he then haue ryght therto as thou thynkest ¶ Stud. By conscience as me thynketh for the reason that I haue made byfore ¶ Docto r And vpon what lawe shulde that coÌ„scieÌ„ce be grouÌ„ded that thou spekest of / for it can nat be grouÌ„ded by the lawe of the realme as thou haste sayd thy selfe And me thynketh that it can nat be grounded vpon the lawe of god / nor vpon the lawe of reason for feffemeÌ„tes nor contractes be nat grounded vpon neyther of tho lawes / but vpon the lawe of man ¶ Stud After the lawe of propriete was ordayned / the people myght nat conueniently lyue togyther without contractes / therfore it semeth that coÌ„tractê be grouÌ„ded vpon the lawe of reason / or at the leste vpoÌ„ the lawe that is called Ius gentium ¶ Doct. Though contractes be grouÌ„ded vpon that law that is called Ius gentiuÌ„ / bycause they be so necessarye so generall amonge all people / yet that proueth nat that coÌ„tractes be grouÌ„ded vpon the lawe of reason for thoughe that lawe called Ius gentium be moche necessarye for the people yet it may be chaunged And therfore if it were ordayned by statute that there shulde be no sale of lande / ne no coÌ„tracte of goodes And if any were that it shulde be voyde / so that euery man shuld coÌ„tynewe styll seased of his landes possessed of his goodes / the statute were good And then if a man agaynst that statute solde his lande for a suÌ„me of money / yet the seller myghte lawfully retayne his lande accordynge to the statute And then he were bouÌ„de to no more / but to repaye the money that he receyued with resonable expeÌ„ces in that behalfe / and so iÌ„ lykewyse me thynketh that in this case the infant may with good coÌ„scieÌ„ce reentre in to his fyrst lande / bycause the coÌ„tracte after the maximes of the law of the realme is voyde / for as I haue herde the maximes of the lawe be of as greate strengthe in the lawe as statutes And so me thynketh that in this case the infaunt is bouÌ„de to no more / but only to repay the money to hym that he solde his laÌ„de vnto / with suche reasonable costes charges as he hath sustayned by reason of the same But if a man sell his lande by a sufficieÌ„t lawful coÌ„tracte thoughe there lacketh lyuerye of season or such other solempnities of the lawe yet the seller is bounde in conscience to performe the contracte / but in this case the contracte is insufficient / so me thynketh great diuersitie bytwyxt the cases ¶ Stud. For this tyme I holde me contented with thy opoinion ¶ The seconde question of the student The .xxii. Chapitre STudent If a man that hath landes for terme of lyfe be impanelled vpon an inquest / therupon leseth yssues
dyeth / where maye tho yssues be leuied vpon hym in the reuercion in coÌ„science as they may be by the lawe ¶ Doct. If they maye be leuied by the lawe / what is the cause why thou doost doute whether they may be leuied by conscience StudeÌ„t For there is a maxime in the lawes of Englande / that where two tytles ronne togyther / the eldeste tytle shal be preferred And in this case the tytle of hym in the reuercion is byfore the tytle of the forfetour of the yssues And therfore I doute somwhat whether they maye be lawfully leuyed ¶ Doct. By that reason it symeth thou arte in doute what the lawe is in thê case / but that must necessarely be knowen / for els it where in vayne to argue what conscience wyll therin ¶ Stud. it is certayne that the lawe is suche / so it is lyke wyse if the husbande forfet yssues dye / tho yssues shal be leuyed on the landes of the wyfe ¶ Doct. And if the lawe be such it symeth that coÌ„science is so in lykewyse / forsyth it is the lawe that for execucion of Iustice euery man shal be iÌ„panelled when nede requyreth it semeth reasonable / that if he wyll nat appere that he shulde haue some punysshemeÌ„t for his nat apperauÌ„ce for els the lawe shulde be clerely frustrate in that poynt And that payne as I haue herde is that he shal lese yssues to the kyng for his nat apperauÌ„ce / wherfore it semeth nat inconuenieÌ„t nor agaynste conscience though the lawe be that tho yssues shal be leuyed of hym iÌ„ the reuercion / for that coÌ„dicion was secretlye vnderstande in the lawe to passe with the lease whaÌ„ the lease was made And therfore it is for the lessour to beware and to preuent that daunger at the makynge of the lease / or els it shal be aiuged his owne defaute And than this pertyculer maxyme wherby suche yssues shall be leuyed vpon hym in the reuercyon is a pertyculer excepcyon in the lawe of Englande froÌ„ that generall maxyme that thou haste remeÌ„bred byfore that is to say that where two tytles ronne togyther / that the eldest tytle shal be preferred / so in this case that generall maxime in this poynt shall holde no place / nother in lawe nor in coÌ„science / for by this perticuler maxime the strengthe of that generall maxime is restreyned to euery intent / that is to saye / as well in lawe as in coÌ„science ¶ The thyrde question of the student The .xxiii. Chapitre STudeÌ„t If a tenant for terme of lyfe / or for terme of yeres do waste wherby they be bouÌ„de by the lawe to yelde to hym in the reuercion treble damagê And shall also forfet the place wasted / whether is he also bounde in conscience to pay tho damages / to restore the place wasted immediatly after the waste done / as he is the single damages / or that he is nat bounde therto tyll the treble damages the place wasted be recouered in the kynges courte ¶ Doctour Byfore iugemeÌ„t gyuen of the treble damagê and of the place wasted he is nat bounde in conscience to pay them For it is vncertayne what he shulde pay / but it suffiseth that he be redy tyl iugemeÌ„t be gyuen to yelde damages accordynge to the value of the waste / but after the iugement gyuen / he is bounden in coÌ„science to yelde the treble damages / also the place wasted And the same lawe is in all statutê penall / that is to saye / that no man is bouÌ„de in conscience to pay the penaltye tyll it be recouered by the lawe ¶ Stud. Whether maye he that hath offended agaynst suche a statute penal defende the accion hyndre the iugement to the intent he wolde nat paye the penaltie / but onely the single damagê ¶ Doctour If the accion be taken ryghtwysely accordyng to the statute and vpon a iuste cause / the defendant maye in no wyse defende the accion / onles he haue a true dylatorie mater to plede whiche shuld be hurtful to hym if he pleded it nat / though he be nat bounde to paye the penaltie tyll it be recouered ¶ The fourth question of the studeÌ„t The .xxiiii. chapitre STudent If a man infeffe another in certayne lande vpon condicion that if he infeffe any other that it shal be lawfull for the feffour and his heyres to reentre cÌ„ whether is this coÌ„dicion good in coÌ„scieÌ„ce though it be voyde in the lawe ¶ Doctour What is the cause why this condicion is voyde in the lawe ¶ Stud. The cause is this / by the lawe it is incideÌ„t to euery state of fee simple / that he that hath that estate may lawfully by the lawe by the gyfte of the feffoure make a feffement therof And than whan the feffoure restrayneth hym after that he shall make no feffement to no man agaynst his owne former graunt / also agaynste the puritie of the state of a fee simple / the lawe iugeth the condicion to be voyde / but if the condicion had ben that he shulde nat haue infeffed suche a man / or such a man that condicion had ben good / for yet he myght infeffe other ¶ Doctour though the sayde coÌ„dicion be agaynst the effecte of the stande of a fee simple also agaynste the lawe Neuerthelesse it is nat agaynst the intente that the parties agreed vpon and that at the tyme of the lyuerey And for as moche as the intent of the partie was that if the feffe infeffed any man of the lande / that the the feffour shuld entre / to that intent the feffe toke the estate after breke the intent it semeth that the lande in coÌ„science shulde returne to the feffour ¶ Stud. the intent of the parties in the lawes of Englande is voyde in many cases / that is to say if it be nat ordered accordyng to the lawe As if a man of his mere mocion without any recompence intendynge to gyue landes to another to his heyres make a dede vnto hym / wherby he gyueth hym the landes to haue to holde to hym for euer intendyng that by that worde for euer the feffe shuld haue the lande to hym to his heyres / in this case his intent is voyde / and the other shal haue the lande onely for terme of lyfe Also if a man gyue landes to another to his heyres for terme of .xx. yeres inteÌ„dyng that if the lessee dye within the terme / that than his heyres shulde enioye the lande durynge the terme In this case his inteÌ„t is voyde / for by the lawe of the realme all chatellys reall and personall shall go to the executoures / and nat to the heyre Also if a man gyue landes to a man to his wyfe / and to the thyrde person intendynge that euery of them shulde take the thyrde parte of the lande as thre common persons shuld his intent is voyde / for
his chyldreÌ„ as laÌ„des intayled be gyuen Another cause is this it appereth by the coÌ„mauÌ„demeÌ„t of god that thou shalt nat coueyt the house of thy neyghboure cÌ„ And if the coÌ„cupisceÌ„ce be ê“hibited more stroÌ„ger the vnlawfull takinge withholding therof is prohibit / for as moche as tayled lande whaÌ„ the auncestre is deed is a thynge that of righte is belongynge to his heyre / for that he is heyre accordynge to the gyfte / how may that laÌ„de with right or conscieÌ„ce be holden froÌ„ hym ¶ StudeÌ„t Natwithstandynge that prohibicion of almighti god wherby the laÌ„de that was gyuen to Abraham to his seed might nat be aliened for euer / yet landes within walled townes might lawfully be aliened for euer / excepte the landes of the leuites as it appereth in the sayde chapitre of Leuitici .xxv. And so it appereth that the sayd prohibicion was nat generall for euery place that amonge the Iewes And it appereth also that it was gyuen onely for Abraham his chyldren / so it was nat generall to all people And it appereth also that it extended nat but onely to the lande of promission / as it appereth by the wordes of the sayd chapitre / where it is sayde thus all the region of your possession shal be solde vnder the condicion of redemynge / whereby appereth that landes in other countres be nat bounde to that condicion / and as they be nat bounde to that condicion by the same reason / it foloweth that they be nat bounde to the same succession Therefore the sayde lawe that wyll that the lande gyuen to AbrahaÌ„ to his seed shall nat be solde for euer / bindeth no lande out of the lande of promission / some men will say that sythen the passion of our lord was promulgate knowen it byndeth nat there And to the secoÌ„de reason whiche is grounded vpon the coÌ„mauÌ„demeÌ„t of god It must nedes be grauÌ„ted that it is nat lawfully to any man vnlawfully to couere the howse of his neyghbour / that than more stronger he maye nat vnlawfully take it from hym but thaÌ„ it remayneth for the yet to proue / howe in this case this tayled lande that is solde by his auncestre / whereof a recouery is had of recorde in the kynges courte maye be sayd the lande of the heyres ¶ Doctour that may be proued by the law of the real me / that is to say by the statute of westmiÌ„ster the seconde the fyrste chapitre / where it is sayd thus The wyll of the gyuer expressely contayned in the dede of his gyfte shal be from hensforth obserued / so that they to whome the tenementes be so gyueÌ„ shal nat haue power to alyen / but that the landes after theyr deth shall remayn to theyr issue or retourne to the donour if the issue fayle / by the whiche statute it appereth euidently that though they to whome the tenementes were so gyuen aliened them awaye / that yet neuerthelesse they in law conscience by reason of the sayde statute ought to remayn to the heyres according to the gyfte / for it is holden commonly by all Doctoures that the coÌ„maundementes rewles of the lawe of maÌ„ or of a positiue lawe that is lawfully made / bynde all that be subiectes to that lawe accordyng to the mynde of the maker that in the court of conscience ¶ Student Doest thou thiÌ„ke that if a man offende agaynst a statute penall that he offendeth in conscience admit that he do it nat of a wilfull disobedience for that he wyll nat obey the law / for if he do it of disobedience I thynke he offeÌ„deth ¶ Doctour If it be but onely a statute that is called Populare it byndeth nat in conscience to the payment of the penalitie / til it be recouered by the lawe And than it dothe bynde in conscience / but if a statute be made principally to remedy the hurte of the partye / for that hurte it gyueth a penaltye to the partye in that case the offendour of the statute is bounde immediatly to restore the damages to the value of the hurt as it is vpon the statute of waste / but the penaltye aboue the hurte he is nat bounde to pay tyll iugement be gyuen as it is sayd byfore / but statutes by the which it is assigned who shall haue right or proê‘tye to these laÌ„des tenemeÌ„tes / or to these goodes or catailes if it be nat agaynst the lawe of god / nor agaynst the lawe of reason bynde all them that be subgecte to the lawe in lawe conscience / suche a statute is the statute of westminster the .ii. whereof we haue treated byfore / wherefore it must â–ª be obserued in conscience ¶ Stud. But some holde that the sayde statute of Westmynster â–ª the .ii. was made of a singularitie presumpcion of many that were at the sayd parliament for exaltinge and magnifienge of theyr owne blode therfore they saye that that statute made by suche a presumpcion byndeth nat in conscieÌ„ce ¶ Doctour It is very perillous to iuge for certayne that the sayde statute was made of suche a presumpcion as thou spekest of / for there be many consideracions to proue that the sayd statute was nat made of suche a presumpcion but rather of a very good mynde of all the parlyamente / or at the leste of the more parte thereof / for the common welthe of all the realme / fyrste in the kyng the whiche in the said parliament was the hede and moste chyef principall parte of the parliament as he is in euery parliament / can nat be noted no suche inteÌ„t / For it is nat necessary nor it was nat than in vse that landes of the crowne shulde be entayled in spirituall men ne yet in certayne burgesies cytizeÌ„s of the sayde parlyamente whiche at that tyme had no lande / there can be noted no suche singularitie / nor yet in the noble meÌ„ gentilmen nor suche other as were of the sayd parliameÌ„t had landes tenemeÌ„tes It is nat good to iuge iÌ„ certayn that they dyd it of suche a presuÌ„pcion / but it is good and expedient in this case as it is in other cases that be in doubte to holde the surer waye / and that is that it was made of charitie / to the intente that he nor the heyres of hym to whome the lande was gyuen shulde nat falle in to extreme pouertye / and thereby haplye to ronne in to offence agaynste god / and thoughe it were trewe as they saye that it was nat made of charytie but of presumpcion and singularitie as they speke of Neuerthelesse for as moche as the statute is nat agaynste the lawe of god nor agaynste the lawe of reason it must be obserued by all theÌ„ that be subiectes vnto that lawe / For as IohnÌ„ Gerson sayth in the treatyse that he entituleth in latine De vita spirituali anime the
fourth lesson the thyrde corollarie sayth that god wyl that makers of lawes iuge only of outwarde thynges reserue secrete thinges to him And so it appereth that man maye nat iuge of the inward intent of the deed / but of suche thynges as be apparaūt / certayne it is that it is nat apparaunte that there was any suche corrupte entent in the makers of the sayd statute / howe may it therfore be sayd that that lawe is good or right wyse / that nat only suffereth suche thynges agaynst the statute / but also agaynst the commaundement of god ¶ Studēt To that some answere say that whan the lande is solde a recouery is had therupon in the kīges court of recorde that it sufficeth to barre the tayle in conscience / for they saye that as the tayle was fyrste ordayned by the lawe So they saye that by the lawe it is adnulled agayne ¶ Doctoure Be thou thy self iuge if in that case there be lyke auctorite in the makynge of the tayle as there is in the adnullynge therof / for it was ordayned by auctorite of parliament / the which is alway taken for the moste hyghe court in this realme byfore any other / and it is anulled by a false supposell for that that they that be named demaundaūtes shulde haue right to the lande where in trouthe they neuer had right therto whereupō foloweth a false supposell in the writte / a false supposell in the declaracion a voucher to warraūte by couyn of suche a person as hath nothynge to yelde in value thereupon by couyn collucion of the perties foloweth the default of the vouchee by the whiche default the iugement shall be gyuen And so al that iugemente is deriuyed grounded of the vntrue supposell ouyn of the parties / whereby the lawe of realme that hath ordayned suche a writte of entre to helpe them that haue righte to landes or tenementes is defrauded the courte is desceyued the heyre is disherited as it is to doubte the byer the seller theyr heyres assignes hauing knowlege of the tayle be bounde to restitucion / and verily I haue herde many tymes / that aft the lawe of the realme suche recoueries shulde be no barre to the heyre in the tayle if the lawe of the realme might be therein indifferently harde ¶ Studēt I can nat se but that after the lawe of the realme it is a barre of the tayle / for whan the tenāt in tayle hath vouched to warrauntie / and the vouchee hathe appered entred in to the warrauntye / after hath made defaut in despite of the court whereupō iugemēt is gyuen for the demaundaunt agaynste the tenaunt / for the tenaunt that he shal recouer in value agaynst the vouchee / the heyre in the tayle shulde after brynge his forme done and recouer the landes intayled / and after vouchee purchaseth landes / than shulde the heyre also haue execucion agaynst hym to the value of the landes entayled as heyre to his auncestre that was tenaunt in the fyrst accion and so he shulde haue his owne landes / and also the landes recouered in value and therefore bycause of that presumpcion that the vouchee maye purchase landes after the iugement / some be of opinion that it is in the lawe a good barre of the tayle ¶ Doctor. I suppose that in that case thou haste put that the vouche maye barre the heyre in tayle of his recouerie in value bycause he hath recouered the fyrste landes Neuerthelesse I wyll take a respite to be aduised of that recouerye in value And if thou can yet shewe me any other consideracion why the sayde recoueries shuld stāde with conscience / I praye the let me here thy cōceyte therein / for the multitude of the said recoueries is so great that it were greate pytye that all they shuld be bounde to restitucion that haue landes by suche recoueries syth there is none that as far as I can here disposeth them to restore ¶ Student Some men make an other reason to proue that the sayde recoueries shulde be sufficient by the lawe to a voyde the state of west than if they be sufficiēt therto / they be sufficient in conscience ¶ Doctour What is theyr reason therin ¶ Student In the .vii. yere of kynge Hēry the .viii. the .iiii. chapitre amonge other thynges it is enacted / that all recouers theyr heyres assignes may aduowe and iustifie for rentes seruice and customes by them recouered as they agaynste whome they recouered mighte haue done And than they saye that whā the parliamēt gaue to suche recouerers auctorite to aduowe iustifie for suche rētes customes seruices as they recouered / that the entēt of the parliament was that suche recouers shulde haue right to that for the whiche they shulde aduowe or iustifi for els they saye that it shuld be in vayne to gyue thē suche power / that the parliament shulde els be takē in maner as fortifiers of wrōg full rules so they say that suche recouerers by reason of the sayde statute haue right the law ¶ Doctour That statute as it semeth was made onely to gyue to the recouerers a forme to aduowe iustyfie / whiche they had nat byfore though they had recoueryd vpon a good tytle And the cause why they had no forme to aduowe or iustifie byfore the sayde statute was for as moche as the recouerers dyd nat by the pretence of theyr acciō afferme the possession of him or thē agaīst whome they recouered / nor claymed nat by them / but rather disafermed and distroyed theyr astate And therfore they cā nat alege any continaunce of theyr title by thē / as they may that haue rentes or seruices / or such other of the graunt of other by dede or by fyne And therfore as it semeth the moste principall intent of that statute was that suche recouerers shuld auowe iustify for rentes seruices customes as they shulde or might do that had them by fine or dede nat hauinge any respect as it semeth whether they recouered agaynst tenaūt in fee simple or in fee tayle / nor whether the recoueries were had vpon a rightfull title And therfore as me semeth the sayd estatute neyther affermeth nor disaffermeth the title of the recoueries wherby they do aduowe for if a man had right byfore the recouerye that right shulde remayne vnto hym natwithstandynge the sayd statute so me semeth that the title of them that haue the landes entayled by suche recoueries is nothynge fortyfyed nor affermyd by the said estatute but that they are ī the same case as they were byfore what thynkest thou therin ¶ Student / this mater is great / for as thou sayste there be so many that haue tayled landes by suche recoueries / that it were great pytie heuynes to condempne so many persones to iuge that they all were bounde to restitucion For I thynke there
be but fewe ī this real me that haue landes of any notable value but that they or theyr aūcestours / or some other by whome they clayme haue had parte therof by such recoueries / In so moche that lordes spirituall tēporal knyghtes / squyres ryche men / poore / monasteries / collegies / and hospitalles haue suche landes / for suche recoueries haue ben vsed of longe tyme / who may thynke therfore without great heuines that so many men shulde be bounde to restitucion / and that yet as thou sayste / no man disposeth hym to make restitucion And so I am in maner perplexed and wot nat what to saye in this case / but that yet I truste that ignoraunce maye excuse many persons in this behalfe ¶ Doctoure Ignoraunce of the dede maye excuse / but ignoraunce of the lawe excuseth nat but it be inuincible / that is to saye that they haue done that ī them is to knowe the trouthe as to councell with lerned men and to aske thē what the lawe is in that behalfe and if they answere them that they may do this or that lawfully / than they be thereby excused in conscience / but yet in mannes lawes they be nat thereby discharged / but they that haue taken vpon them to haue knowlege of the law be nat excused by ignoraunce of the lawe / ne no more are they that haue a wilfull ignoraunce that wolde rather be ignoraunt than to know the trouth And therfore they will nat dispose them to aske any councell in it / if it be of a thynge that is agaynste the lawe of god / or the lawe of reason / no man shal be excused by ignoraunce / and to there be but fewe that be excused by ignoraūce ¶ Studēt what than shall we condempne so many so no table men ¶ Doctoure We shall nat condempne them / but we shall shewe them theyr peryll ¶ Student yet I truste that theyr daunger is nat so greate that they shulde be bounde to restitucion For Iohā Gerson sayth in the sayd boke called Devintate ecclesiastica consideracione secunda / quod cōmunie error facitius That is to saye a common errour maketh a right / of whiche wordes as it semeth some trust maye be had / that though it were fully admitted that the sayd recoueries were fyrst had vpon an vnlawfull grounde and agaynste the good ordre of conscience that yet neuertheles for as moche as they haue ben vsed of longe tyme / so that they haue ben taken of diuers men that haue ben righte well lerned in maner as for a lawe / that the byers partly be excused so that they be nat bounde to restituciō And moreouer it is certeyn that that statute of westm̄ the. 2 nor none other statute made by mā cā nat be of greater vertue or strength / thā was the bonde of matrimonie that was ordayned by god And though that bonde of matrimoni was indissoluble / yet neuertheles Moyses suffred a byll of refusell to the Iewes / whiche in latine is called Libellū repudu / and so they mighte thereby forsake theyr wyfes As it appereth Deutro xxiii therefore lyke as a dispensacion was sufred agaynst that bōde / so it semeth it may be agaynst this statute ¶ Doctour as to that reason that thou haste laste made of a byll of refusell / let all purchasours of lāde here what our lorde sayth in the Gospell to the Iewes of that byll of refusell Mathei xix where he sayth thus / To the hardnes of iour hertes / Moyses suffred you to leue your wyfes / for at the begynnynge it was nat so / of whiche wordes Doctours holde commonly that thoughe suche a byll of refusell was lawfull so that they that refused theyr wyfes therby / shulde be without payne in the lawe / that yet it was neuer lawfull so that it shuld be with out synne And so likewyse it may be sayd in this case / that suche recoueries be suffred for the hardnes of the hertes of Englisshemen / whiche desyre lande possessions with so great gredynes that they cā nat be withdrawne from it neyther by the lawe of god / nor by the lawe of the realme And therefore that ryche men shulde nat take the possessions of poore mē from thē by power without coloure of title / that is to saye eyther by open disseson / or by the onely sale of the tenaunte in tayle so to holde them agaynste the expresse wordes of the statute / suche recoueryes haue ben suffred And though for theyr great multitude they maye haplye be without payne as to the lawe of the realme yet it is to feare that they be nat without offence as agaynst god / as to thy other reason that a common errour shulde make a right those wordes as me semeth be to be thus vnderstande / that a custome vsed agaynst the lawe of man shal be taken in some coūtres for lawe if the people be suffred so to continue And yet some mē call suche a custome an errour bycause that the continuance of that custome agaynst the lawe was partlye an errour in the people / for that that they wolde nat obey to the law that was made by theyr superiours to the contrarye of that custome but it is to be vnderstande that the sayd recoueries though they haue ben longe vsed may nat be taken to haue the strength of a custome / for many as well lerned as vnlerned haue alwaye spokē agaynste thē and yet do And furthermore as I haue herde say a custome or a p̄scripcion in this realme agaynste the statutes of the realme preuayle nat in the lawe ¶ Studēt though a custome in this realme preuayleth nat agaynst a statute as to the lawe / yet it semeth that it may preuayle agaynste the statute in conscience / for though ignoraunce of a statute excuseth nat in the lawe / neuertheles it may excuse in conscience / so it semeth that it may do of a custome ¶ Doctoure But it suche recoueries can nat be brought in to a lawful custome in the lawe / it semeth they maye nat be brought in to a custome in conscience / for conscience muste alway be groūded vpon some lawe in this case it can nat be grounded vpon the lawe of reason / nor vpon the lawe of god and therefore if the lawe of man serue nat / there is no groūde wherupon conscience in this case may be grounded / at the begynnynge of suche recoueries they were taken to be goood / bycause the lawe shuld warraunt them to be good and nat by reason of any custome and so if the reason of the lawe wyll nat serue in tho recoueries / the custome cā nat helpe for an euyll custome is to be put awaye And therfore me semeth that tho recoueries be nat without offence against god / thoughe haplye for theyr great multitude / and that there shulde nat be as it were a subuersion of
there shulde nat be so great expenses in the law nor so great variaunce amonge the people ne yet so greate offence of conscience as there is nowe in many persones ¶ Student Verily me thynketh that thy oppinion is righte good and charitable in this behalfe And that the rewlers be boūde in conscience to loke well vpon it to se it reformed and broughte in to good ordre And verily by that thou haste sayde therein thou haste broughte me in to remembraunce that there be diuerse lyke snares concernynge spirituall matters suffred amonge the people / whereby I dowte that many spirituall rewlers be in greate offēce agaynste god As it is of that poynte that the spirituall men haue spoken so moche of that preestes shulde nat be putte to answere byfore laye men specially of felonies and murders / and of the statute of xlv E. iii. the .iii. chapitre / where it is said that a prohibicion shall lye / where a mā is sued in the spirituall courte for tythe of wood / that is aboue the age of .xx. yere / by the name of Silua cedua as it hathe done byfore / and they haue in open Sermons and in diuerse other open communicaciōs and counsayles causes it to be openly notefied and knowen that they shulde be all accursed that put preestes to answere / or that maynteyne the sayd estatute / or any other lyke to it And after whā they haue right well perceyued that nat withstandynge all that they haue done therein / it hath ben vsed in the same poītes through all the realme in lyke maner as it was by fore Than they haue sitte styll and lette the matter passe / and so whan they haue broughte many persones in greate daunger / but moste specially them that haue gyuen credence to theyr saynge / and yet by reason of the olde custome haue done as they dyd before / than there they haue lett thē / but verily it is to feare that there is to thēselfe right great offēce therby / that is for to say to s◠so many ī so great daunger as they say they be And to do no more to bringe them out of it than they haue done for if it be trewe as they saye / they oughte to sticke to it with effecte in all charite till it were reformed And if it be nat as they say thā they haue caused many to offende that haue gyuen credēce to them / and yet countrary to theyr owne conscience do as they dyd byfore / and that percase shulde nat haue offēded if suche saynges had nat ben And so it semeth that they haue ī these matters done eyther to moch or to libel And I beseche all mighty god that some good man may so call vpon all these matters that we haue nowe cōmoned of / so that they that be in auctorite maye somwhat pondre them / to ordre them in suche maner that offence of cōscience growe nat so lightly thereby hereafter as it hathe done in tyme paste And verily he that on the crosse knewe the pryce of mānes soule wil hereafter aske a righte strayte accompt of rewlers for euery soule that is vnder them and that shall perysshe through theyr defaulte ¶ Addition THus I haue shewed vnto the ī this litle Dialoge howe the law of Englande is grounded vpō the lawe of reason the lawe of god / the generall customes of the realme / and vpon certayne principles that be called maximes vpon the particuler customes vsed in diuerse Cities countries / and vpon statutes whiche haue ben made in diuerse parliamentes by our soue rayne lorde the kynge and his progenitoures / and by the lordes spirituall temporall / all the cōmons of the realme And I haue also shewed the in the .ix. chapitre of this boke / vnder what maner the sayd generall customes maximes of the lawe may be proued affermed if they were denyed / diuers other thynges be conteyned in this presente Dialoge / whiche wyll appere in the table / that is in the latter ende of the boke / as to the reders wyll appere And in the ende of the sayd Dialoge I haue at thy desyre shewed the my cōceyte concernīge recoueries of tayled landes / and thou haste vpon the sayde recoueries shewed me thyne oppinion And I beseche our lorde sette them shortelye in a good clere way / for surely it wyll be right expediente for the well ordrynge of conscience in many persones that they be so And thus god of peace and loue be alway with vs. Amen ¶ Here endeth the fyrste Dialogue in Englisshe / with newe Addicions betwixte a Doctoure of diuinite / and a Student in the lawes of Englande And here after foloweth the Table ⸫ ¶ Tabula Here aft foloweth the table with certayne Addiciōs newly added therto And ouer all the Chapitres and questions whiche be newly added Ye shall fynde entite led this worde Addicion bothe in the Table and also in the boke THe introduccion Fo. 2. ¶ Of the lawe eternall The fyrst chapitre Fo. 3. ¶ Of the lawe of reason / the whiche by Doctours is called the lawe of nature of reasonable creature The. seconde chapitre Folio 5. ¶ Of the lawe of god The iii. chapitre Folio 7. ¶ Of the lawe of man The .iiii. chapitre Folio 9. ¶ Of the fyrste grounde of the law of Englande The .v. chapitre Fo. 11. ¶ Addicion Fo. 12 ¶ Of the seconde grounde of the lawe of Englande The .vi. chapitre Folio 14. ¶ Of the thyrde grounde of the lawe of Englande The .vii. chapitre Folio 16. ¶ Of the .iiii. grounde of the law of Englande The .viii. chapitre Fo. 21. ¶ Of diuerse cases / wherein the Student dowteth whether they be onely maximes of the lawe / or that they be grounded vpō the lawe of reason The .ix. chapitre Folio 25. ¶ Of the .v. grounde of the lawe of Englande The .x. chapitre Fo. 27. ¶ Of the .vi. grounde of the lawe of Englande The .xi. chapitre Folio 28. ¶ The fyrste question of the Doctoure / of the lawe of Englande and conscience The .xii. chapitre Fo. 29. ¶ what Sinderisis is The .xiii. chapitre Folio 31. ¶ Of reason The .xiiii. cha Fo. 32. ¶ Of cōscience The .xv. cha Fo. 33. ¶ what is Equtie The .xvi. chapitre Folio 36. ¶ In what maner a man shal be holpē by equities in the lawes of Englande The .xvii. chapitre Fo. 38. ¶ whether the statute hereafter reherced by the Doctoure be agaynst conscience or nat The .xviii. chapitre Fo. 41. ¶ Of what lawe this question is to be vnderstande / that is to saye where consciēce shal be rewled after the lawe The .xix. chapitre Fo. 42. ¶ Addicion Fo. 44. ¶ Addicion Fo. 45. ¶ Of diuerse cases / where cōscience is to be ordered after the lawe The .xx. chapitre Fo. 46. ¶ Addicion Fo. 47. ¶ The fyrste question of the Student The .xxi. chapitre Fo. 49. ¶ The
/ wherby it is ordeyned that a tenant for terme of lyfe shall haue in ayde / for he can nat say but that he toke a greater estate by the lyuerey of season that was made to hym whiche yet coÌ„tinueth than for terme of lyfe / so I thynke hym nat bounde to make any restitucion to hym in the reuercion in this case for the waste ¶ Do. Is thy mynde onely to proue that thê tenant is nat bounde to make restitucion to hym in the reuercion for the waste or that thou thynkest that he may with clere conscieÌ„ce do all maner of wast ¶ Stud. I entende to proue no more but that he is nat bouÌ„de to restitucion to hym in the reuercion ¶ Do. Than I wyll ryght well agree to thyn oppinion for the reason that thou haste made / but if thy mynde had ben to haue proued that he myght with clere conscience haue done all maner of waste I wolde haue thought the contrary therto / and that the tenant in fee simple may nat do all maner of waste destruction with conscieÌ„ce / as to pull downe houses make pastures of cyties townes / or to do suche other actes whiche be agaynst the comon welthe And therfore some wyll say that tenant in fee simple may nat with coÌ„scieÌ„ce destroye his wodes cole pyttes wherby a hole contrey for theyr money haue had fuell And yet though he do so he is nat bounde by conscience to make restitucion to no person in certayne But now I pray the or thou ê“cede to the seconde case that thou wylte somwhat shewe me what thou meanest whan thou sayest at the comon lawe it was thus or thus I vnderstande nat fully what thou meanest by that tme at the comon lawe ¶ Stud. I shall with good wyl shewe the what I mene therby ¶ What is ment by this terme whan it is sayd / thus it was at the comon lawe The seconde chapitre STudent The comon lawe is taken thre maner of ways Fyrst it is taken as the law of this realme of EnglaÌ„de disceyuered from all other lawes / vnder this maner taken It is oftentymes argued in the lawes of Englande what maters ought of ryght to be determined by the comon law / what by the admiralles courte or by the spirituall courte And also if an obligacion bere date out of the realme / as in Spayne / FrauÌ„ce / or suche other It is sayd in the lawe trouthe it is that they be nat pledable at the comon lawe Secondely the comon lawe is taken as the kynges courtes of his benche or of the comon place / it is so taken whan a ple is remoued out of auncien demeane for that the lande is franke fee and pledable at the comon lawe / that is to saye in the kynges courte nat in ancien demeane And vnder this maner taken / it is ofteÌ„tymes pleaded also in base courtes as in court Barons / the Contie the court of Pypouders and suche other that this mater or that cÌ„ ought nat to be determined in that courte but at the comon lawe / that is to saye in the kynges courtes cÌ„ Thyrdely by the comon lawe is vnderstande suche thyngê as were lawe before any statute made in that point that is in question so that / that poynt was holden for lawe by the general or particuler customes maximes of the realme or by the lawe of reason the lawe of god no other lawe added to them by statute nor otherwyse / as iÌ„ the case before rehersed in the fyrste chapitre where it is sayde that at the comon lawe tenante by the curtesy tenant in dower were punysshable of waste / that is to say / that before any statute of waste made they were punysshable of waste by the grounde maximes of the lawe vsed before the statute made in that pointe / but tenant for terme yf lyfe ne for terme of yeres were nat punysshable by the sayde groundes maximes tyll by the statute remedy was gyuen agaynste them therfore it is sayde that at the comon law they were nat punysshable of waste ¶ Doc. I pray the now procede vnto the seconde question ¶ The seconde question of the student The thyrde chapitre STudent If a man be outlawed neuer had knowlege of the sute / whether may the kynge take all his goodes reteyne them in conscience as he maye by the lawe ¶ Docour What is the reason why they be forfeyted by the lawe in that case ¶ Stud. The very reason is for that it is an olde custume an olde maxime in the lawe that he that is outlawed shall forfeyte his goodes to the kynge / and the cause why that maxime began was this WhaÌ„ a maÌ„ had done a trespace to another or an other offence wherfore processe of outlagary laye / he that the offence was done to had taken an accion agaynst hym accordyng to the lawe / if he had absented hym selfe and had had no laÌ„des there had ben no remedye agaynst hym for after the lawe of EnglaÌ„de no man shal be condemned without aunswere / or that he appere and wyll nat answere / except it be by reason of any statute Therfore for the punisshement of suche offenders as wolde nat appeare to make answere to be iustified in the kyngê courte / it hath ben vsed without tyme of mynde / that an attachemeÌ„t in that case shulde be directed agaynste hym returnable into the kynges benche or the comon place / and if it were returned there vpoÌ„ that he had nought wherby he might be attached that than shulde go forthe a Capias to take his persone / and after an alias Capias / than a Pluries and if it were returned vpon euery of the sayd Capias that he coulde nat be founde and he appered nat than shulde an ExigeÌ„t be dyrected agaynste hym whiche shulde haue so longe daye of returne / that fyue couÌ„ties myght be holden before the returne therof and in euery of the sayde fyue conties the defendant to be solemlye called and if he appered nat / than for his contumacy and disobedience of the lawe the coroners to gyue iugement that he shal be outlawed / wherby he shall forfeyt his goodes to the kynge lese diuers other aduantages in the law y nedeth nat here to be remeÌ„bred nowe And so bycause he was in this case called accordynge to the lawe appered nat it semeth that the kyng hath good tytle to the goodes bothe in lawe coÌ„scieÌ„ce ¶ Doctoure If he had knowelege of the sute in very dede it semeth the kynge hath good tytle in coÌ„science as thou sayest But if he had no knowlege therof it semeth nat so / for the defaut that is adiuged in hiÌ„ as it appereth by thyne owne reason is his contumacie and disobedience of the lawe / and if he were ignoraunt of the sute / than can there ben assigned in
hym no disobedience / for a disobedience implieth a knowelege of that he shulde haue obeyed vnto ¶ Student It semeth iÌ„ this case that he shulde be coÌ„pelled to take knowlege of the sute at his peryll / for sythe he hathe atteÌ„pted to offeÌ„de the lawe it semeth reasoÌ„ that he shal be compelled to take hede what the lawe wyll do agaynst hym for it / and nat onely that but that he shulde rather offre amendes for his trespasse than for to tary tyll he were sued for it And so it semeth the ignoraunce of the sute is of his owne defaute / specially syth iÌ„ the lawe is set suche ordre that euery man may knowe if he wyll what sute is taken agaynst hym / and may se the recordes therof whan he wyll / so it semeth that neyther the partye nor the lawe be nat bounden to gyue hym no knowlege therin And ouer this I wolde somwhat moue ferther in this mater thus That though the accioÌ„ were vntrue / the defendauÌ„t nat gylthy / that yet the goodes be forfeyted to the kyng for his nat apparauÌ„ce in lawe also in conscieÌ„ce / that for this cause / the kyng as souereyne hed of the lawe is bouÌ„den of iustice to grauÌ„t such writtes and such ê“cesses as be oppoynted in the lawe to euery ê‘sone that wyll complayne be his surmyse true or false / there vpon the kynge of iustice oweth as well to make processe to bryng the defendaunt to answere whaÌ„ he is nat gyltye as whan he is gyltie / thaÌ„ whaÌ„ there is no maxime in the lawe that if a man be outlawed in suche maner as before apê‘eth that he shall forfayte all his goodes to the kynge / maketh no excepcioÌ„ whether the accioÌ„ be true or vntrue / it semeth that the sayd maxime more regardeth the generall ministracion of iustice than the particuler ryght of the party that therfore the property by the outlawry by the sayd maxime ordeyned for ministracion of iustice is altered and is gyuen to the kynge as byfore appereth / that both in lawe and coÌ„science as wel as if the accion were true And than the ê‘tie that is so outlawed is dryuen to sue for his remedy agaynste hym that hath so caused hym to be outlawed vpon an vntrue accioÌ„ ¶ Doct. If he haue nat sufficient to make recompence or dye before recouere can be had / what remedy is than ¶ Student I thynke no remedy / and for a ferther declaracion in this case and in suche other lyke cases where the propertie of goodes maye be altered without asseÌ„t of the owner it is to coÌ„sydre that the ê“pertie of goodê be nat gyueÌ„ to the owners directly by the law of reason nor by the lawe of god but by the lawe of man / is suffred by the lawe of reason by the law of god so to be For at the begynnyng al goodê were in comoÌ„ / but after they were brought by the lawe of man into a certeyne ê“pertie so that euery man myght knowe his owne thaÌ„ whan such ê“pertie is gyueÌ„ by the law of maÌ„ the same lawe may assigne such coÌ„dicioÌ„s vpoÌ„ the ê“pertie as it lysteth / so they be nat agaynst the lawe of god ne the lawe of reason / and may lawfully take away that it gyueth / appoynt howe longe the ê“perty shall continue And one coÌ„dicioÌ„ that goeth with euery ê“perty iÌ„ this realme is if he that hathe the ê“perty be outlawed accordyng to such proces as is ordeyned by the lawe / that he shal forfayte the propertie vnto the kyng / and diuerse other cases there be also wher by propertie in goodê shal be altered in the lawe and the ryght in landes also without assente of the owner / wherof I shall shortely touche some without laynge any aucthorite therin / for the more shortnes Fyrst by a sale in open marked the propertie is altered Also goodes stolen and seased for the kynge or weyued be forfaite oneles appelle or enditement be sued Also strayes if they be proclaymed and be nat after claymed by the owner within the yere be forfayte / also a deodand is forfayte to whome so euer the property was byfore / except it belonged to the kynge and shal be disposed for the soule of hym that was slayne therwith and a fyne with a nonclayme at the comoÌ„ lawe was a barre if claime were nat made within a yere as it is nowe by statute if the clay We be nat made withiÌ„ .v. yeres And al these forfaytures were ordeyned by the lawe vpon certayne consideracions whiche I omit at this tyme / but certeyne it is that none of theÌ„ was made vpoÌ„ a better coÌ„sideracion than this forfayture of outlagary was For if no especiall punisshemeÌ„t shulde haue ben ordeyned for offenders that wolde absent them selfe nat appere whan they were sued in the kyngê courtes many sutes in the kinges courtes shulde haue ben of smale effecte And sythe this maxime was ordeyned for the execucion of Iustice and as moche done therin by the comon lawe as policie of maÌ„ coulde reasonably deuise to make the partie haue knowelege of the sute and nowe is added therto by the statute made the syxte yere of kynge Hnry the .viii. that a writte of proclamacion shal be sued if the partie be dwellynge in a nother shyre / it semeth that such title as is gyueÌ„ to the kyng therby is good in coÌ„scieÌ„ce / especially seyng that the kyng is bounden to make processe vpon the surmyse of the playntyfe may nat examine but by the ple of the partie whether the surmyse be true or nat But if the partie be retourned .v. tymes called where in dede hf was neuer called as in the seconde case oe the laste Chapitre of the sayd dialogue iÌ„ latyne is conteyned / than it semeth the partie shall haue good remedy by petition to the kynge / specially if he that made the returne be nat sufficient to make recoÌ„pence or dye byfore recouere can be had ¶ Doct. Nowe syth I haue herde thyne opinion in this case wherby it appereth that many thyngê muste be sene or a ful and a playne declaracion can be made in this behalfe / seyng also that the plaine answere to this case shall gyue a great lyght to dyuerse other cases that may come by suche forfeyture I pray the gyue me a ferther respyte or that I shewe the my ful opinion therin / and here after I shall ryght gladly do it And therfore I pray the procede nowe to some other case ⧠The thyrde question of the student The fourth Chapitre STudent If a straunger do waste in laÌ„des that a nother holdeth for terme of lyfe without assent af the tenaunt for terme of lyfe wether may he in the reuercion recouer treble damages and the place wasted agaynste the tenaunt for terme of lyfe accordyng to the statute in conscience as he may by the lawe if
the straunger be nat sufficient to make recompence for the wast done ¶ Doctoure Is the lawe clere in this case that he in the reuercion shal recouer agaynst the tenauÌ„t for terme of lyfe thoughe that he assented nat to the doyng of the wast ¶ Student ye verely / and yet if the tenauÌ„t for terme of lyfe had ben bouÌ„den in an obligacion in a certeyne suÌ„me of money that he shulde do no waste he shuld nat forfayt his boÌ„de by the wast of a strauÌ„ger / and the diuersite is this It hathe ben vsed as an auncient maxime in the lawe that tenaunt by the curtesy and tenauÌ„t in dower shuld take the lande with this charge / that is to saye / that they shulde do no waste them selfe ne suffre none to be done / and whan an accion of wast was gyuen after agaynst a tenaunt for terme of lyfe thaÌ„ was he taken to be in the same case as to that poynt of waste as tenaunt by the curtesy and tenaunt in dower was / that is to saye / that he shulde do no waste nor suffre none to be done / for there is a nother maxime in the lawe of Englande that all cases lyke vnto other cases shal be iuged aft the same lawe as the other cases be syth no resoÌ„ of diuersite can be assigned why thete naÌ„t for terme of lyfe after an accioÌ„ of wast was gyueÌ„ agaynst hiÌ„ shuld haue any more fauour iÌ„ the lawe thaÌ„ the tenaÌ„t by the curtesie or tenauÌ„t iÌ„ dower shuld / therfore be is put vnd the same maxime as they be / that is to say / that he shall do no wast ne suffre none to be done / and so it semethe that the lawe in this case dothe nat considre the abilite of the persone that dothe the waste whether he be able to make recompeÌ„ce for the wast or nat But the assent of the sayd tenauntes wherby they haue wylfully taken vpon theÌ„ the charge to se that no wast shal be done ¶ Doctor I haue herde that if houses of these tenauntes be destroyed with sodeyne tempest or with straunge enemies that they shall nat be charged with wast ¶ Student Trouthe it is ¶ Doct. And I thynke the reason is bycause they can haue no recouere ouer ¶ Student I take nat that for the reason but that it is an olde reasonable maxime iÌ„ the lawe that they shuld be discharged iÌ„ those cases / how be it some wyll saye that in those cases the lawe of reason doth discharge them therfore they saye that if a statute were made that they shulde be charged in those cases of wast that the statute were agaynst reason and nat to be obserued / but yet neuertheles I take it nat so / for they myght refuse to take suche estate if they wolde / and if they wyll take the state after the lawe made it semeth reasonable that they take it with the charge and with the condicion that is appoynted therto by the lawe thoughe hurte myght folowe to theÌ„ afterward therby / for it is oftentymes sene iÌ„ the lawe that the lawe doth suffre him to haue hurt without helpe of the lawe that wyll wylfully renne into it of his owne acte nat coÌ„pelled therto and aiugeth it is folly so to renne into it / for whiche folly he shall also be many tymes without remedy in conscience As if a man take landes for terme of lyfe and byndeth hym selfe by obligacion that he shall leue the lande in as good case as he founde it / if the houses be after bloweÌ„ downe with tempest or destroyed with straunge enemies as in the case that thou hast put byfore he shal be bouÌ„de to repayre them or els he shall forfayte his obligacioÌ„ in lawe conscience bycause it is his owne acte to bynde hiÌ„ to it / yet the lawe wolde nat haue bounde hym therto as thou hast sayd byfore So me thiÌ„keth that the cause why the sayd tenauntes be discharged in the lawe in an accion of wast whaÌ„ the houses be destroyed by sodeyne tempest or by straunge enemyes is by a speciall reasonable maxime in the lawe / wherby they be excepted fro the other generall bonde byfore reherced / that is to saye they shall at theyr peryl se that no waste shal be done and nat by the lawe of reason / and syth there is no maxime in this case to helpe this tenaunt ne that he can nat be holpeÌ„ by the lawe of reason / it semeth that he shal be charged in this case by his owne acte bothe in lawe conscience whether the straunger be able to recompence hym or nat ¶ Doctour I doute iÌ„ this case whether the maxime that thou spekest of be reasonable or nat / that is to say / that tenauntes by the curtesye tenauntes in dower were bounden by the comon lawe lawe that they shulde do no waste them selfe / and ouer that at theyr peryll to se that no waste shulde be done by none other For that lawe semeth nat reasonable that byndeth a man to an impossibilite And it is impossible to preuent that no wast shal be done by straungers / for it may be sodeynly done iÌ„ the nyght that the tenauÌ„tê can haue no notice of / or by great power that they be nat able to resyste / and therfore me thiÌ„keth they ought nat to be charged in those cases for the waste / without they may haue good remedy ouer and thaÌ„ percase the sayd maxime were sufferable / els my thynketh it is maxime agaiÌ„st reason ¶ StudeÌ„t As I haue sayd before no man shal be compelled to take that boÌ„de vpon hym but he that wyll take the lande and if he wyll take the lande it is reasoÌ„ he take the charge as the lawe hath appoynted with it / and thaÌ„ if any hurte growe to hym therby it is throughe his owne acte and his owne assent / for he myght haue refused the lease if he wolde ¶ Doctoure Thoughe a man may refuse to take estate for terme of lyfe or for terme of yeres / and a womaÌ„ may refuse to take her dower yet tenauÌ„t by the curtesy can nat refuse to take his estate for immedeatly after the deth of his wyfe the possession abideth styll iÌ„ hym by the acte of the lawe without entre / and thaÌ„ I put the case that after the deth of his wyfe he wolde weyue the possessioÌ„ after wast were done by a strauÌ„ger whether thiÌ„kest thou that he shuld answere to the wast ¶ Stu. I thynke he shulde by the lawe ¶ Doct. And howe staÌ„deth that with reasoÌ„ / seyng there is no defaut iÌ„ hiÌ„ ¶ Stu. It was his defaut / at his owne peryll that he wolde marye an enheritrice whervpon such dauÌ„ger myght folowe ¶ Doc. I put case that he were withiÌ„ age at the mariage or that the laÌ„de disceÌ„ded to his wyfe aft he maried her Stu. there thou mouest a 〈◊〉 doute than the fyrste question is /
nat vouche for him excepte it be that he knoweth that the tenaunt hathe a true cause of voucher and of lyen / and that he doth it to brynge hym therto / in lykwyse he may nat pray in age for hym oneles he knowe the praye haue good cause of voucher and lyen ouer / or that he knowe that the pray hath somwhat to pleade that the tenaunt maye nat pleade as vyllen age in the demaundaunte or suche other ¶ Doctour Thoughe the playntyfe hath brought an accion that is vntrue and nat mayntenable in the lawe / yet the defendaunte dothe wronge to the playntyfe in the withholdynge of the profytes as wel byfore the accion brought as hangynge the accion / and that wronge as it semeth the couÌ„saylour doth mayntaine / and also sheweth hym selfe to fauoure the partie in that wronge whan he gyueth coÌ„cell agaynst the accion ¶ Sudent If the playntyfe do take that for a fauoure and a maynteynauÌ„ce of his wronge he iugethe ferther than the cause is gyuen / so that the couÌ„saylour do no more but gyue couÌ„sayle agaynst the accion / for though he gyue hiÌ„ couÌ„sayle to withstande the accioÌ„ for the vntruth of it / that he shulde nat coÌ„fesse it to make therby a fine to the kyng without cause / yet it may stande with that he may gyue counsayle to the partie to yelde the profytes / and therfore I thinke he may in this case of counsayle with hym at the comon lawe and be agaynst hym in the chauÌ„cery and in eyther courte gyue his couÌ„sayl without any contrariosite or hurte of conscience / and vpon this grounde it is that a man may with good conscience be of couÌ„sayle with hym that hath lande by discent or by a discontinuauÌ„ce withouten tytle / if he that hathe the ryght brynge nat his accion accordynge to the lawe for the recouerynge of his ryght in that behalfe ⧠The seuenth question of the studente The .viii. Chapitre STudent If a man take a distresse for dette vpon an obligacioÌ„ or vpon a coÌ„tracte or suche other thynge that he hath right title to haue but that he ought nat by the lawe to distrayne for it / and neuertheles he kepeth the same distresse in pounde tyll he be payed of his dutye / what restitucion is he bounde to make in this case / whether shall he repay the money bycause he is come to it by an vnlawfull menes or onely to restore the partye for the wrongfull takyng of the distres or for neyther I pray you shewe me ¶ Doctoure what is the lawe in this case ¶ Student That he that is distrayned may brynge a speciall accion of trespasse agaynst hiÌ„ that distreyned / for that he toke his beestê wroÌ„g fully and kept them tyll he made a fyne / therfore he shal recouer that fyne in damages as he shal do for the residue of trespas for that takyng of the money by suche coÌ„pulcion is taken in the lawe but as a fyne wrongfully taken / thoughe it be his duete to haue it ¶ Doctour yet though he may so recouer me thynketh that as to the repayment of the money he is nat bounde therto in coÌ„science so that he take no more thaÌ„ of ryght he ought to haue / for though he come to it by an vniust meane / yet whaÌ„ the money is payed hym it is his of ryght and he is nat bounde to repaye it oneles it be recouered as thou sayd / and than whan he hathe repayed it he is as me thynkethe restored to his fyrst accioÌ„ / but to the redelyuere of the beestes with suche damages suche hurte as he hathe by the distresse I suppose he is bounde to make recompence of them in conscience without compulcion or sute in the lawe / for thoughe he myght lawfully haue sued for his duete in suche maner as the lawe hathe ordred / yet I agre well that he maye nat take vpon hym to be his owne iuge and to come to his duty agaynst the order of the lawe / and therfore if any hurte come to the partie by that disorder he is bounde to restore it But I wolde thynke it were the more doute if a maÌ„ toke such a distresse for a trespasse done to hym and kepeth the distresse tyll amendes be made for the trespasse / for iÌ„ that cas the damages ben nat in certayne but be arbitrable eyther by assent of the parties or by .xii. men / and it semeth that there is no asseÌ„t of the partie in this case specially no fre assent / for that he dothe is by compulcion and to haue his dystres agayne / and so his assent is nat moche to be pondered in that case / for all is the assessynge of hiÌ„ that toke the distresse / and so he hathe made hiÌ„ selfe his owne iuge / and that is prohibited in all lawes / but in that case where the distresse is takeÌ„ for dette he is nat his owne iuge / for the dette was iuged incertaine by fore by the fyrst contracte / therfore some thynke great diuersite betwene the cases ¶ Student By that reason it semeth that if he that distrayneth in the fyrste case for the dette take any thynge for his damagê that he is bounde in conscience to restore it agayne / for damagê be arbitrable and nat certayne no more than trespasse is / me semeth that both in the case of trespasse and dette he is bouÌ„de in coÌ„scieÌ„ce to restore that he taketh / for thoughe he ought in ryghte to haue lyke suÌ„me as he resceyueth / yet he ought nat to haue that money that he receyueth / for he came to that money by an vniust menes / wherfor it semeth he ought to restore it agayne ¶ Doctour And if he shuld be coÌ„pelled to restore it againe shuld he nat yet for that he receyued it ones be barred of his fyrst accion nat withstaÌ„dyng the repaymeÌ„t ¶ Stud. I wyll nat at this tyme clerely assoyle the that question / but this I wyll say that if any hurte come to hym therby it is through his owne defaut for that he wolde do agaynst the lawe / but neuertheles a lytell I wyll say to thy questioÌ„ / that as me semeth whaÌ„ he hath repayed the money that he is restored to his first accioÌ„ As if a maÌ„ coÌ„deÌ„pned in an accion of trespasse pay the money / after the defendauÌ„t reuers the iugement by a wrytte of errour and haue his money repayed / than the playntyfe is restored to his fyrst accioÌ„ And therfore if he that iÌ„ this case toke the money restored that he toke by the wrong full distresse or that he ordred the mater so liberally that the other murmure nat necoÌ„playne nat at it / me semethe he dyd verey well to be sure in conscience and therfore I wolde aduyse euery man to be wel ware howe he distrayneth in suche case agaynst the lawe ¶ Doctoure Thy counsayle is good / and I note moche in
one is this Two ioynttenauntes be of goodes the one of them by his laste wyl bequeteth all his parte to a strauÌ„ger and maketh the other ioynttenaunt his executor and dyeth / if he to whome the bequest is made sue the other iointtenaunt / vpon the legacie as executour c. vpoÌ„ this matter shewed / the iuges of the spirituall lawe are bounden / to iuge the wyll to be voyde / by cause it is voyde by the lawe of the realme wherby the iointtenaunt hath right to the hole goodes by the title of the suruiuour is iuged to haue the goodes as by the fyrst gyfte whiche is before the tytle of the wyl must therfore haue pÌ„ferremeÌ„t as the elder title if the iuges of the spiritual courte iuge other wyse they are bouÌ„de to restitucioÌ„ by lyke reason the executours of a man that is outlawed the tyme of his dethe may dyscharge them selfe in the spirituall courte of the perfourmyng of legacyes / bycause they be chargeable to the kynge and yet there is no suche lawe of outlagary in the spirituall lawe ¶ Doctoure By occasyon of that thou haste sayde before I wolde aske of the this question If a parson of a churche alyen a porcyon of dysmes accordyng as the spirituall lawe hathe ordeyned / is nat that alienacion sufficient thoughe it haue nat the solempnities of the temporall lawe ¶ Student I am in doute therin yf the porcion be vnder the fourth parte of the value of the churche but yf it be to the value of the .iiii. parte of the churche or aboue / it is not sufficient and therfore was the wrytte of ryght of dysmes ordeyned / if iÌ„ a wrytte of ryght of dysmes it be Iuged in the kynges court for the patrone of the successoure of hiÌ„ that alieneth bycause the alyenacyon was nat made accordynge to the comon lawe / than the Iuges of the spirituall lawe are bounden to gyue theyr iugement accordyng to the iugemeÌ„t gyueÌ„ in the kyngs court And in lyke wyse if a parson of a churche agre to take a pencyoÌ„ for the tythe of a mylle / yf the pencyoÌ„ be to the fourthe parte of the value of the churche or aboue / than it muste be alyened after the solempnytyes of the kynges lawes as landes tenementes muste / or elles the patrone of the successoure of hym that alyened maye brynge a wryt of ryght of dysmes recouer in the kynges courte / than the Iuges of the spirituall courte are bounden to gyue IugemeÌ„t in the spiritual courte accordyngly as is aforesayd ¶ Doccour I haue herde say that a wryt of ryghte of dysmes is gyueÌ„ by the statute of westmynster the seconde that speketh onely of dysmes and not of pencion ¶ Student where a parson of a churche is wrongfully deforcyd of his dysmes and is lette by an Indicauit to aske his dysmes in the spirituall court than his patroÌ„ may haue a wrytte of ryght of dysmâ— by the statute that thou spekest of / for there lay none at the comon lawe for the person had there good ryght thoughe he were let by the iÌ„dicauit to sue for his right But whan the persoÌ„ had no remedy at the spirituall lawe there a wrytte of ryght of dismes lay for the patroÌ„ by the comoÌ„ lawe as well of pencyons as of dysmes / some saye that in suche case it lay of lesse than of the fourthe parte by the comoÌ„ lawe but that I passe ouer And the reason why it lay at the comoÌ„ lawe if the dysme or pencyoÌ„s were aboue the fourth parte c. was this by the spirituall lawe the alienacyoÌ„ of the persoÌ„ with assent of the bisshope and of the chapitre shall barre the successour without assente of the patrone / and so the patrone might lese his patronage he nat assentinge therto for hys encuÌ„bent myght haue no remedy but iÌ„ the spirituall court and there he was barred wherfore the patrone iÌ„ that case shall haue his remedy by the comon lawe where the assent of the ordinarie and chapitre without the patrone shall nat serue as is sayd before But where the encumbent had good ryght by the spirituall lawe there lay no remedy for the patrone by the comoÌ„ lawe though the encumbeÌ„t were let by an indicauit / for that cause was the sayde statute made and it lyeth as wel by the equitie for offeringê and pensions as for dismes Than farther I wolde thynke that where the spirituall court may holde ple of a temporall thiÌ„ge that they must iuge after the temporall lawe / that ygnoraunce shall not excuse them in that case for by takynge of theyr office they haue bouÌ„de them selfe to haue knowlege of as moch as beloÌ„geth to ther offyce as al Iuges be spiritual teÌ„poral But if it were in argument in this case whether the eldest soÌ„ne myght be a preste by cause he is a bastarde iÌ„ the teÌ„poral lawe that shuld be iuged after the spiritual lawe for the matter is spiritual ¶ Doct. yet notwithstandynge all the reasons that thou haste made I caÌ„ not se howe the iuges of the spirituall lawe shall be compelled to take notice of the temporall lawe seynge that the most parte of it is in the frenche tonge for it were harde that euery spirituall iuge shulde be compelled to lerne that toÌ„ge But if the lawe of the realme were set iÌ„ suche order that they that iÌ„tende to studye the lawe canoÌ„ might first haue a syght of the lawe of the realme as they haue now of the lawe ciuil that some bokê treatises were made of cases of coÌ„scieÌ„ce coÌ„cernynge those two lawes as there be nowe coÌ„cernynge the lawe ciuil and the lawe canoÌ„ I wolde asseÌ„t that it were ryght expedyeÌ„t thaÌ„ reasoÌ„ myght serue the better that they shulde be compelled to take notyce of the lawe of the realme as they be nowe bounden in suche countreys as the lawe ciuill is vsed to take notyce of that lawe ¶ Student Me thynketh thyne oppinion is ryght good and reasonable but tyll suche an order be taken they are bouÌ„de as I suppose to enquere of theym that be lerned iÌ„ the comon lawe what the lawe is / and so to gyue theyr iugement accordyng / if they wyll kepe them selfe fro offence of coÌ„scyence / and for as moche as thou haste well satisfied my mynde in all these questions before I praye the nowe that I maye soÌ„what fele thy mynde in dyuers artycles that be wryten in dyuers bokes for the orderynge of coÌ„scyence vpon the lawe canon and ciuill / for me thynketh that there be dyuers conclusyoÌ„s put in dyuers bokes / as iÌ„ the suÌ„mes callyd Summa angelica / and Summa rosella / and dyuers other for the good order of coÌ„scieÌ„ce that be agaynst the lawe of this realme rather blynde conscience thaÌ„ to gyue any lyght vnto it ¶ Docto. I pray the shewe me some of those cases
that he shall nat call executours to accoÌ„pte ¶ Student I am somwhat in dout theriÌ„ / but it semeth that if it myght be enacted by statute that all willes shulde be voyde as is aforesayde that thaÌ„ it myght be enacted that no man shulde haue auctoritie to call none to accompte vpon suche willes but suche as the statute shall therin appoiÌ„te / for he that may do the more may do the lesse / nat withstandynge I wyll nothynge speke determinately in that poynt at this tyme / ne I meane nat that it were good for to make a statute that all wylles shulde be voyde / for I thynke them righte expedient / but myne inteÌ„t is to proue that the comon lawe may ordeyne the tyme of the full age / as well in wylles of temporal thynges as otherwyse / also that no will shal be made And if it may so do than moche stronger it belongeth to the kynges lawes to interpretate willes concernyng teÌ„porall thynges as well whan they come iÌ„ argument before his Iuges as whaÌ„ they come in argument before spirituall Iuges that they ought nat to be iuged by seuerall lawes that is to saye by the spiritual iuges in one maner by the kinges iuges in another maner ☞ If a man be conuicte of heresye before the ordinari / whether his goodes be forfayth The .xxix. Chapitre DOctoure It appereth in Summa angelica in the title Donatio prima the .xiii. article / that he that is an heretyke may nat make executoures / for in the lawe his goodes be forfet / what is the lawe of the realme therin ¶ Student If a man be conuicte of heresie and abiure he hath forfet no goodes / but if he be conuicte of heresye be deliuered to laye meÌ„nes haÌ„des than hath he forfet all his goodes that he hath at the tyme that he is deliuered to them / thoughe he be nat put in execucion for the heresye / but his landes he shall nat forfet excepte he be dede for the heresye / than he shall forfet theÌ„ to the lordes of the fee / as in case of felonie excepte they be holden of the ordinarie / for thaÌ„ the kynge shal haue the forfeture / as it appereth by a statute made the seconde yere of kynge Henry the .v. the .vii. Chapitre ¶ Doctour Me thynket that as it belongeth onely to the churche to determine heresyes / that so it belongeth to the churche to determine what punisshemeÌ„t he shall haue for his heresye / excepte deth whiche they maye nat be iuges in / but if the churche decre that he shall therefore forfet his goodes me thiÌ„keth that they be forfet by that decre ¶ Student Nay veryly for they be teÌ„porall belonge to the iugement of the kynges court I thynke the ordinarie might haue set no fine vpon none empeched of heresye tyll it was ordeyned by the statute of Henry the .iiii. that he maye set a fyne in that case if he se cause / and than the kynge shall haue that fyne as in the sayde statute appereth ☞ Where diuers patrons be of an auousâ— the churche voydeth / the patroÌ„s varie in theyr presentementes / whether the bisshope shall haue libertye to present whiche of the encuÌ„beÌ„tes that he wyll or nat ⸫ The .xxx. Chapitre DOctoure This question is asked in SuÌ„ma rosella iÌ„ the title Patronê° the ix article there it appereth by the better oppinion that he may present whether clerke he wyll / howe be it the maker of the sayde summe / sayth that by the / rigoure of the lawe the bisshope in suche case may present a strauÌ„ger because the patroÌ„s agre nat / in the same chapitre patronus the .xv. article It is sayde that he muste be preferred that hath the moste merites and hath the moost parte of the patrons And if the nombre be egall / that than it is to coÌ„syder the merites of the patrons if they be of lyke merite / than maye the bisshop coÌ„mauÌ„de them to agre to present agayne And if they can nat yet agre than the libertie to present is gyueÌ„ to the bisshop to take whiche he wyll / if he may nat yet present without greate trouble than shall the bisshop order the churche in the beste maner he can / if he can nat order it / than shal he suspende the churche take awaye the relikes / to the rebuke of the patroÌ„s / if they will nat be so ordered than muste he aske helpe of the temporalitie / in the .xv. article of the sayde title Patronê° / It is asked whether it be expedient in suche case that the more parte of the patroÌ„s agre hauyng respecte to all the patrons / or that it suffise to haue the more parte in coÌ„parison of the lesse parte as thus There be .iiii. patrons two present one clerke the thyrde presenteth another the fourth another / he that is presented by .ii. hath nat the more parte in comparison of all patrons for they be egall / but he hath the more parte hauynge respect to the other presentemeÌ„tes / to this question it is answered that other the presentement is made of them that be of colage there is requisite the more parte hauiÌ„ge respecte to all the colage / or elles euery maÌ„ presenteth for hym selfe as comoÌ„ly do laye men that haue the patronage of theyr patrimony / than it suffiseth to haue the more parte in respecte of the other partes / doth nat the law of EnglaÌ„de agre to these diuersities ¶ StudeÌ„t No veryly ¶ Doctour What order than shal be takeÌ„ in the lawe of Englande if the patrons varie in theyr presentementes ¶ Student After the lawes of Englande this order shal be taken / if they be ioyntenauÌ„tes or tenauntes in comon of the patronage / they vary in presentemente the ordinary is nat bounden to admitte none of theyr clerkes nether the more parte nor the lesse / if the vi monethes passe or they agre theÌ„ he may present by the laps But he may nat preseÌ„t within the .vi. monethes / for if he do they maye agre brynge a Quare impedit agaynste hym / remoue his clerke / so the ordinarie shal be as distourboure And if the patrons haue the patronage by disceÌ„te as coperceners than is the ordinarie bounde to admitte the clerke of the eldest syster for the eldest shall haue the preferment in the lawe if she wyll / than at the nexte auoydaunce the nexte syster shal present so by turne one syster after another tyll all the systers or theyr heyres haue presented / and than the eldest syster shall begyn agayne / this is called a presentynge by turne / it holdeth alway betwene coperceners of an aduouson / excepte they agre to preseÌ„t togyder / or that they agre by coÌ„posicion to presente in some other maner / if they do so that agrement muste staÌ„de
/ but this must be alway excepte that if at the fyrste auoydaunce that shal be after the dethe of the comon auncestre the kynge haue the warde of the longest doughter / that thaÌ„ the kyng by his prerogatiue shall haue the presentement And at the nexte auoydauÌ„ce the eldest syster so by turne But it is to vnderstande that if after the dethe of the comon auÌ„cestre the churche voydeth the eldest syster presented togyder with another of the systers / the other systers euery one iÌ„ theyr owne name or togyder that in that case the ordinarie is nat bounden to receyue none of theyr clerkes but may suffre the churche to renne in to the lapas as it is sayd before for he shall nat be bounde to receyue the clerke of the eldest syster but where she presenteth in her owne name And in this case where the patrones varye in presentement the churche is nat properlye sayd letigiouse so that the ordinarie shuld be bouÌ„de at his perill to directe a writte to enquere de Iure patronatus for that writ lieth where two presente by seuerall titles / but these patroÌ„s present all in one title / therfore the ordinarie maye suffre it to passe if he wyll in to the laps / this maner of presentemeÌ„tes muste be obserued in this realme in lawe conscience ☞ Howe loÌ„ge tyme the patron shal haue to presente to a benefice The .xxxi. Chapitre DOctoure Thê questioÌ„ is asked iÌ„ SuÌ„ma aÌ„gelica iÌ„ the title Ius patronaâ—ê° the .xvi. article / there it is aÌ„swered that if the patron be a lay maÌ„ that he shall haue .iiii. monethes / if he be a clerke he shall haue .vi. monethes ¶ Student And by the comon lawe he shall haue .vi. monethes whether he be a lay man or a clerke / I se no reason why a clerke shulde haue more respite than a lay maÌ„ but rather the contrary ¶ Doctour Fro what tyme shal the .vi. monethes be accoÌ„pted ¶ StudeÌ„t That is in diuers maners after the maner of the voydance / for if the churche voyde by dethe / creacion / or cession the .vi. monethes shal be coÌ„pted fro the dethe of the encumbent / or fro the creacion / or cession / wherof the patron shal be coÌ„pelled to take notice at his peryll / if the voydance be by resignacion or depriuacion than the .vi. monethes shall begyn whan the patron hath knowlege gyuen hym by the bisshop of the resignacion or depriuacion ¶ Doctoure what if he haue knowlege of the resignacion or depriuacion nat by the bisshope but by some other / shall nat the syxe monethes begyn thaÌ„ fro the tyme of that knowlege ¶ Student I suppose that it shall nat begyn tyll he haue knowlege gyuen hym by the bisshope ¶ Doctoure An vnion is also a cause of voydaunce howe shall the .vi. monethes be rekened there ¶ StudeÌ„t There can no Vnion be made but the patrons muste haue knowlege / it muste be apoynted who shall present after that vnion / that is to saye / one of them or bothe / eyther ioiÌ„tly or by tunre one after another as the agrement is vpon the vnioÌ„ / sythe the patron is priuy to the auoidaÌ„ce is nat ignorante of it the .vi. monethes shal be accompted fro the agremente ¶ Doctour I se well by the reason that thou haste made in this chapitre that ignoraunce soÌ„tyme excuseth in the lawe of Englande / for in some of the sayde auoydaunces it shall excuse the patrones as it appereth by thy reasons aboue / in some it shal nat / wherefore I pray the shewe me somwhat where ignoraÌ„ce excuseth in the lawe of Englande where nat after thyne oppinion ¶ Student I wyll with good wil here after do as thou sayste if thou put me in remembrauÌ„ce thereof But I wolde yet moue the somwhat ferther in suche questions as I haue moued the before / concernyng the diuersities betwene the lawes of EnglaÌ„de other lawes / for there be many mo cases therof that as me semeth haue right greate nede for the good order of conscience of many persons to be reformed to be brought in to one oppinion bothe amonge spirituall teÌ„porall / as it is in the case where doctours holde opinion that the statutes of laymen that restrayne libertie to gyue landes to the churche shulde be voyde / they saye ferther that if it were prohibit by a statute that no gyfte shulde be made to foreyns / that yet a gifte made to the churche shulde be good / for they say that the inferiour may nat take away the aucthoritie of the superioure this sayeng is directly agaynst the statutes wherby it is prohibit that landes shulde nat be gyueÌ„ in to mortmayne / they say also that byquestes gyftes to the churche muste be determined after the lawe canon nat after the lawes statutes of lay meÌ„ / so they regarde moche to whome the gifte is made whether to the churche or to make causes / or to comoÌ„ persones / bere more fauoure in giftes to the churche than to other / the law of the realme beholdeth the thyng that is gyuen pretendeth that if the thynge that is gyuen be of landes or goodes that the determinacion therof of right beloÌ„geth in this realme to the kynges lawes whether it be to spirituall maÌ„ or teÌ„poral / to the churche or to other / so is greate diuisioÌ„ in thê behalfe whan one preferreth his opinioÌ„ another his / one this iurisdiccion / another that that as it is to fere more of singularitie thaÌ„ of charite wherfore it semeth that they that haue the greatest charge ouer the people / specially to the helthe of theyr soules / are moste bounde in conscience before other to loke to this matter to do that in them is in all charitie to haue it reformed / nat beholdynge the teÌ„porall iurisdiccion nor spirituall iurisdiccion but the comon welthe quietenes of the people / and that vndoutedly wolde shortlye folowe if this diuisioÌ„ were put away / whiche I suppose veryly wyll nat be but that all men within the realme bothe spirituall teÌ„porall be ordered ruled by one lawe as to teÌ„porall thynges nat wihstandynge for as moche as the purpose of this writtyng is nat to treate of this matter therfore I wil no ferther speke thereof at this tyme. ¶ Doctoure Than I praye the procede to another question as thou sayst thy mynde is to do ¶ Student I wyll with good wyll ☞ If a man be excoÌ„menged / whether he may in any case be assoyled without makynge satisfaccioÌ„ The .xxxii. Chapitre STudent In the summe called SuÌ„ma rosella in the title absolucio quarta the seconde article it is sayd that he that is excoÌ„municate for a wronge if he be able to make satisfaccion ought nat to be assoyled but he do satisfy / that they offende
onely maye disherite the house as by his cesser / or by leuieng of a crosse vpoÌ„ a house agaiÌ„st the statute therof made / in whiche case the house therby shall lese the laÌ„de / some say that by the comon lawe vpon his disclaymour in auourie a writ of righte of disclamour lieth / but if the gyfte be vpon condicion it standeth nether with law nor coÌ„scieÌ„ce that the Abbot shulde haue any more perfite or sure estate than was gyuen vnto hiÌ„ / therfore as the sayd estate was made to the house vpoÌ„ coÌ„dicioÌ„ so that estate may he auoyded for nat performyng of the coÌ„dicion / I thynke verily that this that I haue sayd is to beholdeÌ„ in this realme bothe in lawe conscience / that the decrees of the churche to the contrari bynde nat in thys case But if laÌ„des be gyuen to an Abbot to his coueÌ„t to the inteÌ„t to fynde a laÌ„pe / or to gyue certayne almes to poore meÌ„ / though the inteÌ„t be nat in those cases fulfilled / yet the feoffer nor hê heyres may nat reeÌ„tre for he reserued no reentre by expresse wordes / ne in the wordes whaÌ„ he sayth the entente to fynde a lampe or to gyue almes cÌ„ Is implyed no reentre / ne the feoffoure nor his heyres shall haue no remedye in suche cases / onelesse it be within the case of the statute of Westmynster the secoÌ„de that gyueth the Cessauâ—t de cantaria ☞ Whether a couenauÌ„t made vpoÌ„ a gyfte to the churche that it shall nat be aliened be good The .xxxv. Chapitre STudent In the sayde summe called Summa rosella in the sayde title alienacio / the .xiii. article is asked thê question / whether a couenaunt made vpon a gyft to the churche that it shall nat be aliened be good And the same question is moued agayne in the sayd summe called rosella / in the title condicio the fyrst article in Summa angelica / in the title Donatio prima / the .li. .lii. articles / the inteÌ„te of the question there is whether nat withstandynge that the condicion be good to some alienacions whether that yet it be good to restrayne alienacions for the redemption of them that be in captiuite vnder the infideles or for the greater aduauntage to the house / though the better opinioÌ„ be there that the condicion may nat be broken for redempcion of them that be in captiuite yet it is in maner a hole opinioÌ„ that it may be solde for the greater aduauntage to the house / for it is sayd there that it maye nat be taken but that the intente of the gyuer was so / therfore they calle the condicion that prohibiteth it to be solde condicio turpis that is to saye / a vyle condicion / wherfore they regarde it nat but verilie as I take it if a condicion may restrayne any maner of alienacion than it shall as well restrayne alienacions for the two causes before reherced as for any other causes / and thoughe me thynketh that that condicion is good after the lawes of the realme that vpon giftes to the church restrayneth alienacions yet I shal touche one reason that is made to the coÌ„trary / that is this There is a clere grounde in the lawe that if a feoffement be made to a comon person in fee vpon condicion that the feoffe shal nat alieÌ„ to no man that that condicion is voyde because it is contrary to the estate of a fee simple to bynde hym that hath that estate that he shulde nat aliene if he liste / some say that an Abbot that hath lande to hym to his successours hath as hygh as perfite a fee simple as hath a laye maÌ„ that hath lande to hym to his heyres / and therfore they say that it is as well agaynst the law of the realme to prohibit that the Abbot shall nat alien as it is to prohibit a lay maÌ„ therof / though it be therein true as they say as to the hyghnes of the estate yet me thynketh there is great diuersite betwene the cases concernyng theyr alienacioÌ„s / for whan landes be gyuen in fee simple to a comon person the inteÌ„t of the lawe is that the feoffe shall haue power to aliene / if he do aliene it is nat agaynst the inteÌ„t of the lawe ne yet agaynst the inteÌ„t of the feoffer / but whan landes be gyuen to an Abbot to his successours the intent of the lawe is also of the gyuer as it is to presume that it shulde remayne in the house for euer / therfore it is called mortmayne / that is to saye a ded haÌ„de as who saythe that it shall abyde there alway as a thynge ded to the house And therfore as I suppose the lawe will suffre that coÌ„dicioÌ„ to be good that is made to restrayne that suche mortmayne shulde nat be aliened that yet it may ê“hibit the same coÌ„dicion to be made vpon a feoffemeÌ„t made in fee simple to a maÌ„ to his heyres for that is the moste hyghe / the moste free the moste purest state that is in the law But the lawe suffreth suche a condicioÌ„ he made vpon a gyfte in tayse because the statute prohibiteth that no altenacion shulde be made therof And than as the law suffereth suche a condicion vpoÌ„ a gyfte in mort mayne / that is to saye / that it shall nat be aliened / to be good / than it iugeth the condicioÌ„ also accordyng to the wordes / that is to say / if the coÌ„dicion be generall that they shall aliene to no man as this case is that it shal be taken generaly accordynge to the wordes / it shall nat be takeÌ„ that the inteÌ„t of the gyuer was otherwyse thaÌ„ he expressed in his gift though percase if he were alyue hym selfe the questioÌ„ where asked hiÌ„ whether he wold be coÌ„teÌ„ted it shuld be alieued for the sayd two causes or nat / he wolde say ye / but whaÌ„ he is ded no maÌ„ hath authoritie to iÌ„terpretate his gyft otherwise thaÌ„ the law suffereth / ne otherwyse thaÌ„ the wordes of the gift be And if the coÌ„dicioÌ„ be special that is to say / that the laÌ„de shall nat be aliened to suche a maÌ„ or such a maÌ„ / thaÌ„ the coÌ„dicioÌ„ shal be takeÌ„ accordyng to the wordes / thaÌ„ they may be aliened as for that condicioÌ„ to any other but to them to whome it is expresselie prohibite that the lande shuld nat be aliened to And if the laÌ„des in that case be aliened to one that is nat excepte in the condicion / than he may aliene the lande to hym that is fyrste excepted withoute brekynge of the condicion / for condicions be taken straytely in the lawe without equitie And thus me thynketh that because the sayde condicion is generall restreyneth all alienacions / that it may nat be aliened nether by the lawe of the realme
custome of some contreys where the heyres shal haue heyre lomes Or where the chyldren / the dettes legacis payde / shall haue a reasonable parte of the goodes after the custome of the countrey ¶ Addition ⧠If a man be owtlawed of felony or be attaynted for murdre or felony or that is an ascismus maye be slayne by euery straungeour ⸫ The .xli. Chapitre DOctour It appereth in the sayde suÌ„me called Summa angelica in the .xxi. chapitre in the title of Ascismus the .2 Paragraf that he is an ascismus that will slee men for money at the instaunce of euery man that will moue hym to it / suche man may lawfully be slayn nat onely by the Iuge but by euery priuate persone But it is sayde there in the .4 Paragrafe that he muste fyrst be iuged by the law as an ascismê° or he may be slayne or his goodes seased And it is sayde ferther there in the .2 Paragraf that also in conscience suche an ascismus may be slayne if it be done through a zele of iustice and elles nat Is nat the lawe of the realme lykewise of meÌ„ outlawed / abiured / or iuged for felony ¶ Student In the law of the realme there is no suche lawe that a man shal be adiuged as an ascismus / ne if a man be in full purpose for a certayne suÌ„me of money that he hath receyued to slee a man yet it is no felony ne murdre in the law tyll he hath done the acte for the inteÌ„t in felony nor murdre is nat punisshable by the comoÌ„ law of the realme though it be dedly syn afore god / but iÌ„ treasoÌ„ or iÌ„ som other ê‘ticuler cases by statute the iÌ„teÌ„t may be punisshed And though a man in suche case kyll a man for money yet he shall nat be attaynted that he is an ascismus For as it is sayde before there is no suche terme of ascismus in the law of the realme but he shall in suche case be arrayned vpon the murdre And if he confesse it or plede that he is nat gylty is fouÌ„de gylty by .xii. men he shall haue iugemente of lyfe of membre / shall forfeyte his landes goodes And lyke law is if in appele brought of the murdre he stande dombe wyll nat answere to the murdre he shal be attaynted of the murdre shall forfeyt lyfe landes / goodes / but if he arrayned of the murdre vpon an InditemeÌ„t at the kynges sute there vpon standeth dombe wyll nat answere there he shal nat be attainted of the murdre / but he shall haue payne forte dure that is to saye he shal be pressed to dothe he shall there forfayte his goodes nat his laÌ„des But in none of these cases that is to saye though a maÌ„ be outlawed for murdre or felony / or be abiured / or that he be otherwyse attaiÌ„ted yet it is nat lawfull for no man to murdre hym or slee hym ne to put hym in execucion but by auctoritie of the kynges lawes In so moche that if a maÌ„ be adiuged to haue payne forte and dure / the officer by hedeth hym / or on the contrary wyse putteth hym to payne forte dure where he shulde byhede hym he offendeth the lawe ⧠And if an officer whiche hath auctoritie to put a man to dethe maye nat put hiÌ„ to deth but accordynge to the iugemente than me thynket it shuld folowe that more stronger a straunger may nat put suche a man to dethe of his owne auctoritie without coÌ„maundement of the lawe ⧠But if the iugement be that he shal be hanged in chaynes / the officer hangeth hym in other thynges nat in chaynes I suppose he is nat gylty of his dethe / but some say he shall there make a fyne to the kynge bycause he hathe nat folowed the wordes of the iugement ⧠Also if a man that is no officer wolde a rest a man that is outlawed / abiured / or attaynted of murdre or felony as is aforesayd / he disobeyeth the arrest / by reason of that disobedience he is slayn I suppose the other shall nat be empeched for hys dethe / for it is lawfull vnto euery man to take suche persones to brynge theÌ„ forthe that they may be ordered accordyng to the lawe But if a capias be directed vnto the Sheryfe to take a man in an accion of dette or trespas there no man maye take that man but he haue auctoritie from the Sheryfe And if any man attempte of hys owne auctorite to take hym he resisteth / in that resistinge is slayne he that wolde haue taken hym is gylty of his dethe ¶ Addition ⧠Whether a man shal be bouÌ„den by that acte or offence of his seruaunt or officer ⸫ The .xlii. Chapitre STudent In the sayd suÌ„me called SuÌ„ma aÌ„gelica in the title dominê° .4 Paragrafe Is asked this question / whether a maÌ„ shal be charged for his housholde And it is sayde there that he shall whaÌ„ the housholde offendeth in an office or ministerie that the mayster is the chyefe officer of he hath the werke the profite of the housholde For it shal be his defaut that he wolde chuse suche seruaunte / for he ought to appoynte honeste persones / but it is sayde there that that is to be vnderstande ciuilly nat criminally / wherby as is sayde there he that is a gouernour is bounde for the offeÌ„ce of his officers / that the same is to be holdeÌ„ of a Captayne / that he shal be bouÌ„de for the offence of his squiers And an hoste for his ghest suche other Neuerthelesse it is sayd there that certayne doctours there reherced / therto that if the office be an open or a publyke office / as an office of power or other lyke It sufficeth to brynge forthe hym that offended But it is otherwyse If it be nat a publike office but an hoste or a tauerner or otherlyke But if the housholde offended nat in the office the lorde is nat bounde as to the law but in conscieÌ„ce he is bounde if he were in defaut by nat correctinge them / for he is bounde to correcte them bothe by worde and example / and if he fynde any incorrigible he is bouÌ„de to put hym awaye excepte that he hath presumpcious that if he do so he wyll be the worse / and than he maye do that he thynketh beste / and he is escused and elles nat For to suche persons it is sayde Error qui noÌ„ resistitur approbatur that is to saye An errour that is resisted is approued And thoughe diuers of the saynges before reherced agre with the lawe of the realme / yet all do nat so / also tho that do are to be obserued by auctoritie of the lawe of the realme nat by the auctorite alledged in the sayd paragrafe And therfore I enteÌ„de to treate soÌ„what where
the mayster shal be charged by his seruaÌ„te or deputie / or by them that be vnder hym in any office / where nat / than I enteÌ„de to touche some other thynges where the mayster after the lawes of the realme shal be charged by the acte of his seruaunte in other cases nat concernynge offices where nat ⧠Fyrst if a man be committed to warde vpon arrerages of accompte the keper of the prysoÌ„ suffereth hym to go at large thaÌ„ an accioÌ„ of det shall lye agaynst hym And if he be nat sufficient than it lieth agaynst hym that committed the pryson vnto him that is by reason of the statute of West in the .ii. the .xi. Chapitre ⧠Also if Baylyfes of frauncheses that haue returne of writtes make a false returne the partie shall haue auerment against it as well of to litle yssues as of other thynges as well as he shall haue agaynste the Sheryfe / but all the punisshemente shal be onely vpon the bayly nat vpon the lorde of the fraunchese / that dothe appere by the statute made in the fyrste yere of kynge Edwarde the .iii. the .v. chapitre But if an vnder Sheryfe make a returne where vpoÌ„ the sheryfe shal be amercied there the hyghe sheryfe shal be amercied for the returne is made expressely in his name But if it be a false returne where vpon an accion of disceyt lieth in that case it may be brought agaynst the vnder sheryfe / se therof the statute that is called StatutuÌ„ de male returnantibus breuia ⧠Also if the kynges butteler make deputies he shall auswere for his deputies as for hym selfe As appereth in the statute made in the .xxv. yere of kynge Edwarde the thyrde De prodicionibus the .xxi. Chapitre ⧠Also in the statute that is called statutum scaccaru it is enacted amonge other thynges that no officer of the eschequer shall put any clerke vnder hym but suche as he will answere for And for as moche as the statute is general it semeth that he shall answere as well for an vntrouthe in any suche clerke as for an ouer sighte ⧠Also in the .xiiii. yere of kynge Edwarde the thyrde the .ix. chapitre it is enacted that all Gayles shal be adioyned agayne to the shyres / that the sheryfe shall haue the kepynge of theÌ„ / that the sheryfe shall make suche vnder gardeyns for the which they wil answere And neuerthelesse I suppose that if there be an escape by defaute of the Gayler that the kynge may charge the Gayler if he w l. But it is no dout but he may charge the sheryte by reason of his statute it he will / But if it be a wilfull escape in the Gayler whiche is felonye in him the sheryfe shall nat be bouÌ„de to answere to that felonye ne none other but the Gayler hym selfe and they that assented to hym ⧠Also if a man haue a shyrefwyke / constableship / or bayly wyke in see / wherby he hath the kepynge of prysoners / if he lette any to repleuyn that be nat repleuisshable thereof be attaynt / he shall lefe the office cÌ„ And if it be an vndersheryfe / constable / or baylyfe that hath the kepyng of the pryson that doeth it without knowelege of the lorde he shall haue enprysonement by iii. yeres / after shal be raunsomed at the kynges will / as appereth in the statute of WestmÌ„ the fyrst the .xv. chapitre And so it appereth that in this case he that is the lorde of the pryson is nat bounde to aunswere for the offence of them that haue the rule of the prysoÌ„ vndre hym but that they shall haue the punisshment them selfe for theyr misdemeanoure ♣ Also there is a statute made iÌ„ the .xxvii. yere of kyng Edwarde the .iii. the .xix. chapitre is called the statute of the Staple whereby it is ordeyned that no marchauÌ„t ne none other man shall nat lese theyr goodes for the trespas or forfayte of theyr seruantes / onelesse it be by commaundement of his mayster / or that the offende in the office that his mayster hath put hym in / or els that the mayster shal be bounde to answere for the dede of his seruaunte by the lawe marchaunte / as in some place it is vsed ⧠Also it is enacted in the .xiiii. yere of kyng Edwarde the .iii. the .viii. chapitre that wapentakes and hundredes that be seuered frome the counties shal be adioyned agayne vnto them / and that if the sheryfe holde theÌ„ in his owne handes that he shal put in theÌ„ suche baylyfes that haue landes sufficieÌ„t / for the whiche he wyll answere / and that if he let them to ferme that they be let to the auncient ferme / but after it is prohibited by the statute of the .xxiii. yere of kynge Henry the .vi. the .x. chapitre That no sheryfe shall let his baylywykes nor wapentakes â—o ferme And so whan they be ones in the sheryfes owne handes the sheryfe putteth in baylyfes they be but as vnder baylyfes to the kyng the sheryfe the hyghe baylyfe / they in maner the sheryfes seruauÌ„tes put in onely by hym And therfore by the sayd statute of kynge Edwarde the .iiii. He shall answere for them if they offende in theyr office / but if the sheryfe let them to ferme thaÌ„ though the sheryfe offende the stature in that doynge / yet whether he shal be charged for theyr misdemeanor in the office or nat is a great doubte to some men / for they saye that this statute is onely to be vnderstaÌ„de where the baylywykes be in the sheryfes handes but here they be nat so / ne the baylyfes be nat his seruaÌ„tes but his fermours And therfore they saye that if the sheryfe shal be charged for them It is by the comoÌ„ lawe nat by the statute aforesayd ⧠Also in the .ii. yere of kyng Henry the .vi. the .xiiii. chapitre it is enacted that officers by patente in euery court of the kyng that by vertu of theyr office haue power to make clerkes iÌ„ the sayd courtes shal be charged sworne to make suche clerkes vnder theÌ„ for whome they will answere ⧠Also the Hospitelers Templers be prohibit that they shall holde no plee that byloÌ„geth to the kynges courtes vpoÌ„ payn to yelde damages to the party greued to make raunsome to the kynge / that the superiours shall answere for theyr obedieÌ„ces as for theyr owne dede WestmÌ„ the .ii. the xliii Chapitre ⧠Also the sergeaunt of the caterye shall satisfie all the dertes / damages / an execucions that shal be recouered agaynste any that is purueyour or achatour vnder hym that offende agaynst the statute of .xxxvi of Edwarde the thyrde / or agaynste thys statute of .xxiii. of HeÌ„ry the .vi. In case that the purueyour or achatour be nat sufficieÌ„t cÌ„ And the party pleyntyfe shall haue a Scire facias agaynst
into a towne that hath auctoritie to make attachementes of goodes vpon playntes of dette cÌ„ there vpon a playnte of dette made agaynste the seruant the maysters horse is atached by the officers thynkinge that the horse were his owne / bycause the seruaunt appereth nat the officers sease the horse as forfeyt / iÌ„ this case the lorde shall haue an accion of trespas agaynst the officers / this attachemeÌ„t for the det of his seruauÌ„t shall nat binde hiÌ„ cÌ„ but that an host or a keper of a tauerne shal be charged for theyr ghestes oneles it be done by theyr asseÌ„t or coÌ„mandement I do nat remembre that I haue rede it in the lawes of Englande ¶ Addition ☞ Whether a villayne or abonde man maye gyue away his goodes The .xliii. Chapitre DOctoure It appereth in the sayd suÌ„ne called Summa angelica in the citle donatio prima the .9 Paragrafe that a bonde man nor a religious maÌ„ / nor a monke / ne suche other that hath nothiÌ„g in propre may nat gyue but it be by the licence of theyr superiour / but that sayenge is nat as it is sayd there to be vnderstande of religious persones that haue lawfull ministracioÌ„ of goodes / for if they giue with a cause reasonable it is good / but without cause they may nat ⧠Also if they by the licence if theyr prelate with the councell of the more parte of the couent abyde at scole or go on pilgrimage they may gyue as other honest scolers pilgrymes be reasonably wonte to do / and they maye also gyue almes where there is great nede if they haue no tyme to aske licence ⧠Also if they se one in extreme necessite they may gyue almes though theyr superiours prohibite them / for than all thiÌ„ges be in comon by the lawe of god And therfore they be bounden for to do it / as appereth in the aforesayd summe called SuÌ„ma angelica in the title Elemosina the .6 Pagrafe Dothe nat the lawe of Englande agree with these diuersities ¶ Student For as moche as the question is onely made whether a villayne or a boÌ„de man may gyue awaye his goodes or nat And it semeth that after the forsayd Summe in the title whiche thou haste before reherced / that he ne none other that hath no propertie may nat gyue / whereby it appereth that the sayd Summe taketh it that a bondeman shulde haue no propertie in his goodes / that therfore his gyfte shulde be voyde I shall somwhat touche what propertie what autoritie a villayn hath in his goodes after the lawe of the realme / what auctoritie the lorde hath ouer them And I wyll leue the diuersities that thou hast remeÌ„bred before of religiouse persones to them that liste to treate ferther therin hereafter ⧠Fyrst if a villayne haue goodes either by his owne proper byenge sellynge / or otherwyse by the gyfte of other men / he hath as perfite a propertie also as 〈◊〉 interest in them / maye as lawfully gyue theÌ„ away as any free man hath may But if the lordes sease theÌ„ before his gifte than they be the lordes / the interest of the villayne therein is determined ⧠Also if the lorde sease parte of the goodes of his villayne in the name of all the goodes that the villayne hath or shall hereafter haue that seasure is good for all the goodes that he had at that tyme / thoughe they were nat there present at the tyme of the sesure But if goodes come to the villayne after the seasure he maye lawfully gyue them away nat withstandynge the sayde seasure ⧠Also if the lorde clayme all the goodes of the villayne and seasith no parte of theÌ„ that seasure is voyde / and the gyfte of the villayne is good nat withstandynge that seasure ⧠Also if a man be bounde to villayne in an obligacion in a certayne summe of money / the lorde seaseth the obligacion thaÌ„ the obligacion is his / but yet he can take no accion there vpon but in the name of the villayne / and therfore if the villayne release the dette the lord is barred by that release ⧠Also if a woman be a nyef / she maryeth a free man / the goodes immediately by the mariage be the husbandes / and the lorde shall come to laâ—e to make any seasure / if the husbaÌ„de in that case maketh his wyfe his executrix dyeth / and the wyfe taketh the same goodes agayne as executrix to her husbande / yet it shall nat be lawfull for the lorde to take them frome her thoughe she be a nyefe as she was before the maryage ⧠Also if goodes be gyuen to a maÌ„ to the vse of a villayne / the lorde seaseth those goodes / that seasure after some meÌ„ is good by the statute made in the .xix. yere of kiÌ„ge Henry the .vii. whereby it is enacted that the lord shall entre iÌ„ to laÌ„des wherof other persons be seased to the vse of his villayne they say that the same statute shal be vnderstande by equitie of goodes in vse / as well as of landes in vse ☞ Also if a villayn be made a preste / yet neuertheles the lord may sease his goodes laÌ„des as he might before And vntill the seses he may alien them gyue them awaye as he might before he was preste And in this case the lorde maye order hym so that he shall do hym suche seruice as belongeth to a preste to do before any other but he may nat put hym to no laboure nor other busines but that is honeste and lawfull for a preste to do ⧠Also if a villayn entre in to religion 〈◊〉 his yere of proffe he maye dispose his goodes as he might haue done before he toke the habitte vpoÌ„ hym And in likewyse the lorde maye sease his goodes as he myghte haue done before but if he aftre make executours be professed And the executours take the goodes to the perfourmaunce of the wyll than the lorde maye nat seise the goodes though the executours haue them to the perfourmaunce of the wyll of hym that is his villayne nor in that case the lorde may nat sease his bodye ne put hym to no maner of laboure but muste suffre hym to abyde in his religion vnder the obedience of his superiour as other religiouse persoÌ„s do that be no bondmen And the lord hath no remedye in that case for losse of his boÌ„d man but onely to take an accioÌ„ of trespas agaynst hym that receyued hym into religion without his licence / therevpoÌ„ to recouer dammages as shal be assessed by .xii. men Many other cases there be coÌ„cerniÌ„g the gyfte of the goodes of a vilayn wherof I wyll speke no more at thê tyme for this that I haue sayde suffiseth to shewe that the knowlege of the kynges lawe is right expediente to the good ordre of conscience coÌ„cernynge suche goodes â§
haue no couÌ„sayle / thaÌ„ to dryue hym to plede after the strayte rules formalities of the lawe that he knoweth nat ¶ Doctoure But what if he be knowen for a comon offender / or that the Iuges knowe by examinacioÌ„ or by an euident presumpcion that he is gylty he asketh sent wary / or pledeth misnomer or hath some recorde to plede that he can nat plede after the fourme Maye nat the Iuges in suche cases byd hym plede at his peryll ¶ Student I suppose that they may nat / for though he be a comon offender or that he be gyltye / yet he oughte to haue that the law gyueth hym / that is that he shal haue the effecte of his plees of his matters entred after the forume of the law / and also somtyme a man by examinacion by wytnes may appere gyltye that is nat gyltye And in likewyse there may be a vehement suspicion that he is gyltye that yet he is nat gyltye / therfore for suche susspicious or vehement presumpcious me thynketh a man may nat with conscieÌ„ce be put fro that he ought to haue by the lawe ne yet all though the Iuges knew it of theyr owne knowlege But if it were in appele I suppose that the Iuges might do therin as they shulde thynke best to be done in coÌ„science / for there is no lawe that byndeth them to iÌ„structe hym / but as they do comoÌ„ly the partyes of fauoure in all other cases but they may if they will byd them plede at theyr peryll by aduise of theyr couÌ„cell / if the appelle be pore haue no couÌ„cell the court muste assigne hym couÌ„cell if he aske it as they muste do iÌ„ all other plees / that me thynketh they are bouÌ„de to do in conscience though the appelle were neuer so great an offender / and though the Iuges knewe neuer so certaynly that he were gyltye / for the lawe byndeth theÌ„ to do it And some thynketh that there is great diuersite betwene an indicte an appelle And the reason why the lawe prohibiteth nat couÌ„cell in appelle as it dothe in an inditement I suppose is this There is no appell brought but that of comon presumpcion the appellauÌ„t hath great malice agaynst the appelle As whan the appele is broughte by the wyfe of the deth of her husbande / or by the sone of the deth of his father / or that an appele of robbery is brought for steliÌ„g of goodes And therfore if the iuges shulde in those cases shewe them selfe to instructe the appells the appellauntes wolde grutche thynke theÌ„ perciall / therfore as wel for the indeÌ„pnitie of the court as of the appelle in case that he be nat gyltye the law suffereth the appelle to haue couÌ„cell / but whaÌ„ that a maÌ„ is indicted at the kynges sute / the kiÌ„ge inteÌ„deth nothyng but iustice with fauour that is to the rest quietnes of hê faithful subiectê / to pul away misdoers amoÌ„g them charitably / therfore he wyll be contented that his iustices shall helpe forthe the offenders accordyng to the trouthe as feâ—te as reasone iustice may sufice And as the kynge wyll be contented therein it is to presume that his couÌ„sayle wyll be coÌ„tented And so there is no daunger therby neyther to the couâ—â— ne to the party / as I suppose for this treason it bega that they shulde haue no councell vpoÌ„ inditementes that hath so longe continued that it is nowe growe into a custome into a maxi of the lawe that they shall none haue ¶ Doctoure But if the iuges knowe of theyr owne knowlege that the induer is gylty / than he pledeth misnomer or a recorde that he was autre â—oytz arraynded acquyt of the same murdre or felony / the iuges of theyr owne knowlege know that the plee is vntru may they nat than bid hiÌ„ plede at his peryll ¶ Student I thynke yes but if they know of theyr owne knowlege that he were gylty of the murdre or felonye but that the plee was vntrewe they knewe nat but by coÌ„iecture or informacioÌ„ I thynke they mighte nat then byd hym pleade at his peryll ☞ The seconde question of the Doctoure whether the warrantie of the ionger brother that is taken as heyre bycause it is nat knoweÌ„ but that the eldest brother is ded / be in conscience a barre vnto the elder brother as it is in the lawe ⸫ The .xlix. Chapitre DOctoure A man seased of landes in see hathe issue two sonnes the eldest sone goth beyonde the see bycause a comon voyce is that he is ded the ionger brother is takeÌ„ for heyre / the father dyeth the ionger brother entreth as heyre alieneth the lande with a warantye dyeth without any heyre of his body / after the elder brother cometh agayne claymeth the lande as heyre to his father / whether shall he be barred by that warantye in conscience as he is in the lawe ¶ StudeÌ„t It is an maxime in the lawe that the eldest brother shall in that case be barred And that maxime is taken to be of as stroÌ„ge effecte in the lawe as if it were ordeyned by statute to be a barre And it is as old a law that suche a waraÌ„tye shall barre the heyre as it is that the enheritaunce of the father shall onely descende to the eldest sone And syth the lawe is so why shulde nat thaÌ„ conscieÌ„ce folow the lawe as well as it doth in that poynt that the eldest sone shall haue the lande ¶ Doctour For there appereth no resonable cause wherupon that maxime mighte haue a lawfull begynnynge / for what reason is it that the warantye of an auncestre that hath no right to the lande shulde barre hym that hath righte And if it were ordeyned by statute that one maÌ„ shuld haue a nother maÌ„nes laÌ„de no cause is expressed why he shulde haue it / in that case though he mighte holde the lande by force of that statute / yet he coulde nat holde it in conscience without there were a cause why he shulde haue it these cases be nat lyke as me semyth to the forfeture of goodes by an outlawrye / for I wyll agree for this tyme that that forfeture staÌ„deth with conscience bycause it is ordeyned for ministracioÌ„ of iustice / but I caÌ„ nat ê‘ceyue any suche cause here therfore me thinketh that this case is lyke to the maxime that was at the comoÌ„ law of wrecke of the see / that is to say that if a maÌ„nes goodes had beÌ„ wrecked vpoÌ„ the see that the goodes shuld haue ben iÌ„mediatly forfayted to the kyng And it is holdeÌ„ by all doctors that that law is agaiÌ„st coÌ„science except certayne cases that were to longe to reherce now And it was ordeyned by the statute at Westmynster the first that if a dogge or cat come alyue to the
might growe to the party if he shulde be put to answere to suche auermentes in the chauncerye as if he were put to answere to thē at the comō lawe therfore they thynke that no sub pena lyeth in the sayd cases ne in other lyke vnto them Neuertheles I do nat take it that theyr opynion is that he that boughte the lande in this case may with good conscience holde the lande bycause he shall nat be compelled by no lawe to restore it / but that he is in conscience by the law of reason bounde to restore it or otherwyse to recompence the partye so as he shal be contented I suppose veryly it is so if he wyll kepe his soule out of peryll daūger And after some men to these cases may be resēbled the case of a fine with none clayme that is remembre before in the .xiiii. chapitre of this boke / where a mā knowyng another to haue right to certayne lande causeth a fine to be leuied therof with proclamacion and the other suffereth fyue yeres to passe without clayme in that case he hath no remedye nether by comon law nor by sub pena / that yet he that leuyed the fine is bounde to restore the lande in consciēce And me thynketh I coulde right well agre that it shulde be so in this case / that specially / by cause the partye hym selfe knoweth perfitelye that the sayde colaterall warrantye was obteyned by couen and agaynst conscience ☞ The fourth question of the doctour is of wrecke of the see ⸫ The .li. Chapitre DOctour I pray the let me now here thy mynde howe the lawe of Englāde concernynge goodes that be wrecked vpon the see may stande with consciēce for I am in great doute of it ¶ Student I pray the let me fyrste here thyne opiniō what thou thynkest therein ¶ Doctoure The statute of Westmynstre the fyrst / that speketh of wrecke is / that if any mā dogge or catte come alyue to the lande out of the shyppe or barge / thatt it shall nat be iuged for wrecke so that if the partie to whome the goodes belonge come within a yere a day proue them to be his that he shall haue them or els that they shall remayne to the kynge And me thynketh that the sayd statute standeth nat with conscience / for there is no lawfull cause why the party ought to forfet his goodes ne that the kīg or lordes ought to haue them for there is no cause of forfeture in the partye but rather a cause of sorowe heuines And so that lawe semeth to adde sorowe vpon sorowe 〈◊〉 therfore doctours holde comonly that he that hath suche goodes is boūde to restitucion that no custome may helpe for they say it is agaynst the cōmaūdemēt of god Le .xix. Where it is cōmaūded that a man shall loue his neyghboure as hym selfe / that they say he dothe nat that taketh away his neyghbours goodes / but they agre that if any mā haue cost labour for the sauynge of suche goodes wrecked specially suche goodes as wolde perysshe if they laye styll in the water / as suger / paper / salte / mele / and suche other / that he ought to be alowed for his costes and labour but he must restore the goodes except he coulde nat saue them without puttinge his lyfe in ieoperdie for them / than if he put his lyfe in suche ieoperdie the owner by comon presumpcion had had no waye to haue saued them thā it is moste comōly holden that he may kepe the goodes in cōscience / but of other goodes that wolde nat so lightly perysshe / but that the owner might of comon presumpciō saue them hym selfe or that might be saued without any perill of lyfe / the takers of them be bounde to restitucion to the owner whether he come within the yere or after the yere And me thīket this case is somwhat lyke to a case that I shall put / if there were a lawe a custome in this realme or if it were ordeyned by statute that if any aliē came throughe the realme in pylgrimage dyed / that all his goodes shulde be forfet / that lawe shulde be agaynst consciēce for there is no cause reasonable why the sayde goodes shulde be forfet And no more me thynketh there is of wrecke ¶ Student There be diuers cases where a mā shall lese his goodes no defaute in hym / as where beastes straye awaye fro a man they be taken vp proclaymed the owner hath nat herde of them within the yere the day / though he made sufficient diligence to haue herde of them / yet the goodes be forfet no defaute in hym / so it is where a mā kylleth a nother with the sworde of I. at style the sworde shal be forfet as a deodāde yet no defaute is in the owner / so me thynketh it may be in this case / that sith the comō lawe before the sayd statute was that the goodes wrecked vpon the see shal be forfet to the kyng that they be also forfet nowe after the statute excepte they be saued by folowynge the statute / for the lawe muste nedes reduce the propertye of all goodes to some man whan the goodes be wrecked it semeth the property is in no mā but admitte that the property remayne still in the owner thā if the owner percase wolde neuer clayme than it shulde nat be knowē who ought to taken thē so mighte they be distroyed no profite come of them / wherefore me thynketh it reasonable that the lawe shall appoynt who ought to haue thē / that hath the lawe appoynted to the kyng as souerayn hed ouer the people ¶ Doctoure In the cases that thou haste put before of the stray deodand there be consideracions why they be forfet / but it is nat so here / me thynketh that in this case it were nat vnresonable that the law shulde suffre any man that wolde take thē to take kepe them to the vse of the owner / sauinge his reasonable expēces / this me thynketh were more reasonable law than to pull the property out of the owner with oute cause But if a man in the see cast his goodes out of the shyp as forsaken there doctours holde that euery man may take them lawfully that wyll / but otherwyse it is as they say if he throw them out for fere that they shulde ouercharge the shyppe ¶ Studēt There is no suche law in this realme of goodes forsaken / for thoughe a man weyue the possession of his goodes sayth he forsaketh than / yet by the lawe of the realme the property remayneth still in hym / he may sease them after whā he wyll / if any man in the meane tyme put the goodes in saufegarde so the vse of the owner I thynke he dothe lawfully that he
of the byll is to enquyre whether he dyd the felony withiÌ„ the shyre or no / therfore the iustices before whome suche inditemeÌ„tes be takeÌ„ most comoÌ„ly enfourme the Iury that they are bouÌ„de to regarde the effecte of the byll nat the fourme And therfore there is no vntrouthe iÌ„ this case neyther in hym that made the byll ne yet iÌ„ the iury as me semeth ¶ Doctour But if the partye that ought the horse bryng an accion of trespas declareth that the defendaunt toke the horse with force armes where he toke hiÌ„ without force armes Howe may the playntyfe there be excused of an vntruthe ¶ StudeÌ„t And if the plaiÌ„tyfe surmit an vntruthe / what is that to the court or to the law / for they must beleue the playntyfe tyll that that he sayth be denied by the defendant And yet as this case is there is no vntruth in the playntyfe to say he toke the horse with force armes thoughe he came neuer so secretely withoute weapon / for euery trespas is in the lawe done with force armes / so that if he be attaiÌ„ted fouÌ„de gyltie of the trespas he is at taynted of the force armes And syth the lawe adiugeth euery trespasse to be done with force therefore the playntyfe saythe trewely that he toke hym with force as the lawe meneth to be force For thoughe he toke the horse as a fellon yet vpon that felonouse takynge the owner may take an accion of trespasse if he wyll for euery fellony is a trespasse and more And so I haue shewed the some parte of my mynde to proue that in those cases there is no vntrouthe neyther in the parties / neyther in the Iurye / nor in the lawe lawe Neuerthelesse at a better leasure I wyll shewe the my mynde more fully theriÌ„ with good wyl as thou haste promysed me to do in the cases of the colours of the assise of the oustre that be before rehersed ☞ The .viii. question of the Doctour whether the statute of .xlv. of Edwarde the thyrde of Silua cedua stande with coÌ„science The .lv. Chapitre DOctour In the .xlv. yere of the reygne of kynge Edwarde the thyrde / it was enacted that a prohibicioÌ„ shuld lye where a man is empleded in the courte cristien for dismes of woode of the age of xx yere or aboue by the name of Silua cedua / howe may that statute stande with conscience that is so directely agaynst the lybertye of the churche that is made of suche thynges as the parlyament had no auctorite to make any lawe of ¶ StudeÌ„t It appereth in the sayde statute that it is enacted that a prohibicion shulde lye in that case as it had vsed to do before that tyme if the prohibicion lay by a prescripcioÌ„ before that statute why is nat thaÌ„ the statute good as a confirmacion of that prescripcion ¶ Doctour If there were suche a prescripcion before that statute that prescripcion was voyde / for it prohibiteth the payment of tythes of trees of the age of .xx. yere or aboue / payenge of tythes is grounded as well vpon the lawe of god as vpon the lawe of reason agaynste tho lawes liet no prescripcion as it is holden moste comoÌ„ly by all meÌ„ ¶ StudeÌ„t That there was suche a prescripcion before the sayde statute / that if a man before the sayd statute had ben suyd in the spirituall courte for tythes of wode of the age of .xx. yere or aboue that a prohibicion lay / appereth in the sayd statute / it can nat be thought that a statute that is made by authoritie of the hole realme / as well of the kynge of the lordes spirituall teÌ„porall as of all the comons / will recyte a thynge agaynste the trouth And ferthermore I can nat se how it can be grounded by the lawe of god or by the lawe of reason that he tenthe parte shulde be payed for tythe none other porcion but that but I thynke that it be grouÌ„ded vpoÌ„ the law of reason that a maÌ„ shulde gyue some reasonable porcion of his goodes temporall to them that myninstre to hym thynges spirituall / for euery man is bouÌ„de to honour god of his proper substâ—â—ce / the gyuyng of suche porcion hath nat ben onely vsed amonge faythfull people / but also amoÌ„g vnfaythfull people as it appereth Genesis .xlvii. where corne was gyueÌ„ to the prestes in Egipte the or comoÌ„ barnes And saint Poule in his epistles affermeth the same in many places / as in his fyrste epistle to the Corinthies the .ix. chapitre where he saythe he that worketh in the churche shall eate of that that belongeth to the churche And in this epistle to the Galathes the .vi. chapitre he sayth / let hiÌ„ that is instructed in spirituall thynges departe of his goodes to hym that iÌ„structed hym And sainte Luke in the .x. chapitre sayth that the workmaÌ„ is worthy to haue his hyre / all whiche saynges may right coÌ„ueniently be taken applied to his purpose that spiritual men whiche ministre to the people spirituall thynges / ought for theyr ministracion to haue a competent lyuinge of them that they minister to But that the x. parte shulde be assigned for suche a porcioÌ„ neyther more nor lesse I can nat perceyue that that shulde be grouÌ„ded by the law of reason nor immediatly by the law of god for before the law writteÌ„ there was no certayne porcioÌ„ assigned for the spirituall ministres neyther the .x. parte nor the .xii. parte vnto the tyme of Iacob / for it appereth Gene. xxviii that Iacob auowed to paye Dismes whiche was amonge the Iewes for the .x. parte / if our lorde prospered hym in his iourney / if the .x. parte had beÌ„ his dutye before that auowe / it had ben in vayne to haue auowed it / and so it had 〈◊〉 it had ben grouÌ„ded by the law of reason / as to that that is spokeÌ„ in the Euangelistes in the newe law of tythes / it belongeth rather to the gyuinge of tythes in the tyme of the olde lawe than of the newe lawe as appereth Mathe .xxiii. Lu. xi where our lorde speketh to the phariseis sayth / wo be to you phariseis that sythe mynies / rewe / herbes / forgette the Iugement and the charitie of god / these it behoueth you to do and the other nat to omitte / that is to say / it behoueth you to do iustice and charite of god an nat to omitte payenge of tythes though it be of smale thynges as of myntes / rewe / herbes / suche other And also that that the pharisei saythe Luce .xvii. I paye my tythes of all that I haue / is to be ferred too the olde lawe nat to the tyme to the tyme of the newe lawe Therfore as I take it that the paynge of tythes or of a certayne porcion to spirituall meÌ„ for theyr
man shuld holde satisfi competently to the churche / to the whiche they be bounde to gyue it of right / no expences by the gyuinge of the sayd tythes deducte or withholden / but onely for the payment of tythes of craftes of byenge sellinge / vy reason of the sayde constitucions prouincials somtyme sutes be taken in the spirituall court for personall tythes / therof many men do meruayle / bycause the deduccions many tymes must be referred to the conscience of the parties And they meruayl also why a law shuld be made in this realme for paīge of personall tythes more than there is in other contreys And here I wolde moue the ferther in one thyng cōcernyng suche personall tythes to knowe thy mynde therin / that is / if a man gyue to another an horse / he selleth that horse for a certayne summe / shall he paye any tythe of that summe ¶ Doctoure what thīkest thou therin ¶ Student I thīke that he shall pay no tythe / for there as I take it the profite cometh nat to hī by his owne industri but by the gyfte of an other / as I take it personall tythes be nat payd for euery profite or aduauntage that cometh newly to a man except it come by his own industri or labour so it dothe nat here And also if he shulde paye tythe of that he solde the horse for he shuld pay tithe for the very hole value of the thinge And as I take it the personall tythes for byenge sellinge shall neuer be payde for the value of the thynge / but for the clere geynes of the thynge / and therfore I take the cases before rehersed where a man selleth his lande or pulleth downe a house and selleth the stuffe / that he shulde there paye no tythe / that it is there to be vnderstande that he hath the lande or howse by gyfte or by discent / for if a man bye lande / or bye the tymber stuffe of a howse and sell it for agayn I suppose that he shulde paye a personall tythe for that gayne / and this case is nat lyke to a fee or annuite graunted for counsayle where the hole fee shal be tythed / for the charges deducte or some certayn some for it by agrement / for there the hole fee cometh for his counsayle whiche is by his owne industrie But in the other case it is nat so / and the same reason as for the person all tythe might be made of trees whan they descende or be gyuen to any man and he selleth them to a nother that he shall paye no personall tythe ¶ Doctoure Me thynketh that if the horse amende in his kepynge than he sell the horse / that than the tythe shal be payd of that that the horse hath encreased in value after the gyft so it may be of trees that he shall pay tythe of that that the trees be amended after the gyft or discent ¶ Student Than the tythe muste be the .x. parte of the encrease the expences deducte / and than of trees the charges muste also be deducte / for it is than a personal tythe / and there is no tree that is so moche worthe as it hath hurte the grounde by the growynge / therfore there can no personal tythe be payd by the owner of the grounde whan he selleth thē though they haue increased in this tyme. Neuertheles I will speke no ferther of that matter at this tyme / but wyll shewe the that if tyme / lede / cole / or trees be solde that a myxte tythe can nat growe therby / for a myxt tythe is properly of calues / lābes / pygges / suche other that come part of the groūd that they be fedde of / part of the kepyng industri ouersight of the owners as it is sayd before / but tynne / lede / cole are parte of the groūde of the freholde / trees growe of thē selfe / be also annexed to the freholde will growe of themselfe / also the mixte tythe muste be payde yerely at certayne tymes appoīted by the law or by custome of the cōtrey / but it may happē that tīne / lede / cole / trees shall nat be felled nor taken in many yeres / so it semeth it can nat be any mixt tythe / these be some of the reasons whiche they that wolde mayntayne that statute prescripcion to be good make to proue theyr intēt as they thynke ¶ Doctour What thynke they if a man sell the loppes of his woode whether any tythe ought there to be payd ¶ Student They thynke all one lawe of the trees of the loppes ¶ Doctour And if he vse to fell the loppes ones in .xii. or .xvi. yere / what holde they thā ¶ Studēt That all his one ¶ Doctoure And what is theyr reason why tythe ought nat to be payde there as well as for woode vnder .xx. yere ¶ Student For they say that the loppes are to be taken of the same condiciō as the trees be what time so euer they be felled / and that no custome will serue in that case agaynst the statute / no more thā it shuld do of great trees ¶ Doctour And what holde they of the barke of the trees ¶ Studēt Therin I haue nat herde theyr opinions / but it semeth to be one law with the loppes ¶ Doctour I perceyue wel by that thou hast sayd before that thy mynde is that if a hole contrey prescribe to be quite of tithes of trees / corne / gres / or of any other tythes that that p̄scripcion is good so that the spirituall ministers haue sufficient beside to liue vpō / dost thou nat mene so ¶ Student yes verely ¶ Doctor. And than I wolde know thy mynde if any mā contrary to that prescripcion were sued in the spirituall court for corne gres or any other rythes whether a prohibicion shulde lye in that case as it dyd after thy mynde before the sayd statute where a man was sued in the spirituall court for tythe wood ¶ Student I thynke nay ¶ Doctoure And why nat there as well as is dyd where a man was sued for the tithe woode ¶ Studēt For as I take it there is great diuersiti bytwene the cases that for this cause / there is a maxime ī the law of Englande that if any sute be taken in the spirituall court wherby any goodes or landes might be recouered / whiche after the groūdes of the lawe of the realme ought nat to be sued there though percase the kynges court shall holde no plee therof that yet a prohibicion shuld lye / after whan it had continued longe that no tythes were payd of wood bycause of the sayd prohibicion that after by processe of time some curates began to aske tithes of wood contrary to the law cōtrary to the sayd prescripcion so that variaūce begā
to ryse bytwene curates theyr parysshens in that behalfe / than for appeasinge of the sayd variaunce the sayd statute was made / that as it semeth more at the callynge on of the spiritualty thaÌ„ of the teÌ„poralty / for the statute doth nat expressely graunt that the prohibicion in that case of tythe wood shulde lye so largely as some saye it laye by the lawe howe be it / it doth nat restrayn the comon lawe therin as it appereth euidently by the wordes of the statute / so after some men it appered before the statute also after the statute as I haue touched before / that the spirituall courte ought nat in that case to haue made any processe for â—ythe wood therfore if they dyd a prohibicion laye by the comon lawe lyke lawe is if the spirituall courte make processe vpon suche a legaci as by the law of the realme is voyde As if a man bequethe so one a nother maÌ„nes horse / the spirituall courte thervpon maketh processe to execute that legaci there a prohibicioÌ„ lyeth / for it appereth euideÌ„tly in the lybell if all the trouth appere in the lybell that in the law of the realme that legaci is voyd to all enteÌ„tes And that he to whome the legacy is made shall neyther haue the horse nor the value of the horse And in lykewyse if a man sell his lande for C. li. he is sued after iÌ„ the spirituall court for the tythe of the sayd C. li. There a prohibicion shall lye / for it appereth in that case opeÌ„ly in the lybel that no tythe ought to be payd / that the spirituall law ought nat in that case to make any processe whereby the goodes of hym that solde the laÌ„de myght be taken fro hym agaynste the law of the realme / and vpon this grounde it is that if a man were sued in the spiritual courte nowe sythe the statute for a mortuary that a prohibicion shulde lye / for it appereth in the lybell that sythe the statute there oughte no sure to be taken for mortuaryes / and the same lawe is if any sute were taken in the spirituall court for a newe duty that is of late taken in some places vpon leases of personages and vycarages whiche is called a dimission noble / for it appereth euidently in the lybell if any be made therupon that no suche processe oughte by the lawe of the realme to be made in that behalfe / but in the case of tythe corne / or gresse / or suche other thiÌ„ges whereiÌ„ thou haste desyred to know my mynde / there appereth nothyng in the lybel but that the sute thereof of right perteyneth to the spirituall lawe so for any thynge that appereth the partye maye be holpen in the spirituall court by that prescripcion / and if the case were soo farre put that in the spirituall court they wolde nat alowe the sayd prescripcion / yet I thiÌ„ke no prohibicion shulde lye / for thoughe the spirituall iuges in a spirituall matter denye the parties of iustice / yet the kinges lawes can nat reforme that / but muste remitte it to theyr conscience But if there were some remedye prouided in that case / it were well done / for some saye that in the spirituall courte they will admitte no plee agaynst tythes And also if a composicion were made by assent of the patrone also of the ordinari bytwene a persone and one of his parysshens that the person and his successours shuld haue for a certayne grouÌ„de so many quarters of corne for his tythe yerely / and after contrary to that composicion the persone in the spirituall courte asketh the tythes as they fall / that in this case no prohibicioÌ„ shuld lye / ne yet though the case were further put that the composicion were pleaded in the courte and were disalowed / but all resteth in the conscience of the iuges spirituall as is sayde before how be it bycause some be of opinion that a prohibicion shulde lye in this laste case / therfore I well referre it to the iugemente of other / but in the case of the prescripcion before rehersed I take it for the clerer case / that no prohibicioÌ„ shall lye as I haue said before And I beseche our lorde that this matter and suche other lyke thereto maye be so charitably loked vpon that there be nat here after suche diuisions ne suche diuersities of opinions therein as hath ben in tyme paste wherby hath folowed great costes and charges to many persons in this realme that hath moued me to speke so farre in this chapitre and in diuers other chapitres of this presente boke as I haue done / nat entendynge thereby to gyue occasion to any persone to witholde his tythes that of righte oughte to be payde / ne to alter the porcion therein before accustomed / but that as me thynketh they oughte to be claymed by the same title as they oughte to be payde / by none other / that it may also soÌ„what appere that the sayde statute of .xlv. of Edwarde the .3 was well and lawfully made and vpon a good reasonable consideracion / and that the sayde prescripcion is good also / so that no man was in any daunger of excommunicacion for the makynge of the sayd statute / nor yet is nat for the obseruyng thereof / ne yet of the sayde prescripcion as it is noted by some persons that there shulde be And thus I coÌ„mit the vnto our lorde who euer haue bothe the and me in his blessed kepyng euerlastiÌ„gly AmeÌ„ ⧠Finis ¶ Here endeth the seconde Dialogue in Englisshe / with newe Addicions betwixte a Doctoure / and a Student in the lawes of Englande And here after foloweth the Table ⸫ ¶ Tabula Here aft foloweth the table with certayne AddicioÌ„s newly added therto And ouer all the Chapitres and questions whiche be newly added Ye shall fynde entiteled this worde Addicion bothe in the Table and also in the boke ⸫ THe introduction Fo. 2. ¶ The fyrste question of the Student whether the tenaÌ„t in tayle after possibilite of issue extinct may with conscieÌ„ce do waste The I. chapitre Fo. 4. ¶ What is vnderstaÌ„de by this terme whaÌ„ it is sayd thus it was at the comon law The .ii. chapitre Fo. 7. ¶ The seconde question of the Student whether the goodes of meÌ„ outlawed be forfet in coÌ„science as they be by the lawe The .iii. chapitre Fo. 8. ¶ The thyrde question of the StudeÌ„t / Is or wast done by a strauÌ„ger in landes that be in the haÌ„des of perticuler tenauÌ„tes cÌ„ The .iiii. chapitre Fo. 12. ¶ The .iiii. question of the Student / whether a maÌ„ may with conscience be of couÌ„cell agaynst hym that he knoweth is the heyre of right / but he is certified basterde by the ordinarie The .v. chapi Fo. 15 ¶ The .v. question of the Student / whether a man may with coÌ„science be of counsayle with
a man at the comon lawe knowyng that he hath sufficient matter to be discharged in the chauncery that he may nat pleade at the comon lawe The .vi. chapitre Fo. 17. ¶ The .vi. questioÌ„ of the StudeÌ„t / whether a maÌ„ may with conscience be of counsayl agaynst the feoffour of truste in an accion of trespas that he bryngeth agaynste his feoffe of trust for takyng the profites The .vii. chapitre Fo. 19. ¶ The .vii. question of the StudeÌ„t if a maÌ„ that by way of distres cometh to his det / but he ought nat to haue distreyned for it what restitucion he is bounde to make The .viii. chapitre Fo. 21. ¶ For what thynge a man may lawfully distrayne The .ix. chapi Fo. 23. ¶ The .viii. question of the Student whether executours be bounde in conscience to make restitucion for a trespas done by the testatoure / and whether they be bouÌ„de to paye dettes vpon a contracte fyrste / or make the sayde restitucion The .x. chapitre Fo. 25. ¶ The .ix. question of the Student / whether he that hath goodes deliuered hym by force of a legaci be bounde in conscieÌ„ce to pay a dette vpon a contracte that the testatoure ought / if the executours haue none other goodes in theyr handes The .xi. chapitre Fo. 28. ¶ The .x. question of the Student if a maÌ„ haue issue two sones dyed seased of certayne landes in fee the eldest dyeth without issue the tongest recouereth by assise of mortdauncestre the lande with damages fro the dethe of the father / whether he be bounde in conscience to pay the damages to the executours of the eldest brother for the tyme he leued The .xii. cha Fo. 31. ¶ The .xi. question of the Student what damages the tenant in dower shall recouer in conscience where hyr husbaÌ„de dyed nat seased / but she demaunded hyr dower and was denyed The .xiii. chapitre Folio 33. ¶ The .xii. question of the Student if a man knowynge a nother to haue right to his lande causeth a fyne with proclamacion to be leuyed accordynge to the statute / and he that hath right maketh no clayme within .v. yeres whether he be barred in conscience as he is in the lawe The .xiiii. chapitre Fo. 36. ¶ The .xiii. question of the Student / if a man that hath had a chylde by his wyfe do that in hym is to haue possession of his wyfes landes and she dyeth or he caÌ„ haue it / whether in conscience he shal be tenauÌ„t by the courtesy The .xv. chapitre Folio 37. ¶ The .xiiii. question of the Student / if the grauntour of a reÌ„te enfeffe the grauÌ„te of the rente of parte of the lande cÌ„ whether the hole rente be extincte in conscieÌ„ce as it is in the lawe The .xvi. chapitre Folio 41. ¶ The xv question of the Student / if he that hath a rent out of .ii. acres be named in a recouerye of the one acre he nat knowynge thereof cÌ„ whether his hole rente be extincte in conscience cÌ„ The .xvii. chapitre Fo. 43. ¶ The .xvi. question of the Student / if a man haue a villayne for terme of lyfe the villayn purchaseth laÌ„des iÌ„ fee he that hath the villayn entreth / whether he may with coÌ„cieÌ„ce kepe the laÌ„des to hiÌ„ to his heyres as he may by the law the .xviii. cha fo 45. ¶ The .xvii. questioÌ„ of the StudeÌ„t if a maÌ„ in the case next before enforme hym that is in the reuercioÌ„ of the villayn that after the dethe of the villayn he hath right to the laÌ„de couÌ„sayleth hiÌ„ to entre / wherupoÌ„ great sute charges folowe / what dauÌ„ger that is to hym that gaue the counsayle The .xix. chapitre Fo. 47. ¶ The .xviii. question of the Student is vpoÌ„ a feffemeÌ„t made vpoÌ„ coÌ„dicioÌ„ that the feffe shall pay a rent to a strauÌ„ger / how that feffement shall wey in lawe conscience The .xx. chapitre Fo. 49. ¶ The .xix. question of the StudeÌ„t is vpoÌ„ a feofement in fee / it is agreed that the feffe shall pay a rente to a straunger / howe that feffement shall way in law conscience The .xxi. chapitre Fo. 51. ¶ Howe vses in lande began by what law the cause why so moche laÌ„de is put in vse The .xxii. chapitre Fo. 54. ¶ The diuersite bytwene two cases wherof one is put in the .xx. chapitre and the other in the .xxi. chapitre of this present boke The .xxiii. chapitre Fo. 57. ¶ What is a nude coÌ„tracte or a naked promyse after the lawes of Englande / whether any accion may lye thereupoÌ„ The .xxiiii. chapitre Fo. 61. ¶ The .xx. question of the StudeÌ„t if a maÌ„ that hath two sones one borne before espousels the other after espousels by his wyll byqueteth to his sone heyre all his goodes / whiche of the sones shall haue the goodes in conscieÌ„ce The .xxv. cha Fo. 67 ¶ Whether an Abbot may with conscieÌ„ce present to an aduouson of a churche that belongeth to the howse without assent of the coueÌ„t The .xxvi. chapitre Fo. 72. ¶ If a maÌ„ fynde beestes in his corne doiÌ„g hurt / whether he may by his owne authorite take them and kepe them tyll he be satisfied for the hurt The .xxvii. cha Fo. 75 ¶ Whether a gyfte made by one vnder the age of .xxv. yere be good The .xxviii. chapitre Fo. 76. ¶ If a man be conuicte of heresye before the ordinarie / whether his goodes be forfet The .xxix. chapitre Fo. 78. ¶ Where diuers patrons be of an aduouson the churche voydeth / the patrons varye in theyr presentementes / whether the Bisshop shall haue libertie to present whiche of the incumbentes that he wyll The .xxx. chapitre Fo. eodem ¶ Howe long tyme the patron shall haue to present to a benefice The .xxxi. chapitre Fo. 80. ¶ If a man be excoÌ„menged / whether he may in any case be assoyled withoute makynge satisfaccion The .xxxii. cha Fo. 83. ¶ Whether a prelate may refuse a legaci The .xxxiii. chapitre Fo. 84. ¶ Whether a gyfte made vnder a condicioÌ„ be voyde if the souerayne onely breke the condicion The .xxxiiii. cha Fo. 87. ¶ Whether a couenaunt made vpon a gift to the churche that it shall nat be aliened be good The .xxxv. chapi Fo. 89. ¶ If the patroÌ„ present nat within .vi. monethes who shall present The .xxxvi. chapitre Fo. 91. ¶ Whether the presentemente collacion of all benefices and dignities voydyng at Rome belonge onely to the Pope The .xxxvii. chapitre Fo. 95. ¶ If a howse by chaunce fall vpoÌ„ a horse that is borowed who shall bere the losse The .xxxviii. chapitre Fo. 97. ¶ If a preeste haue wonne moche money by saynge masse / whether he maye gyue those goodes or make a wyll of them The .xxxix. chapitre Fo. 99. ¶ Who shall succede to a clerke that dyeth intestate The .xl. chapitre Fo. 101. ☞ Addicion ¶ If a man be outlawed of felonye / or be attaynted for murdre or felony / or that is an Ascismus may be slayne by euery strauÌ„ger The .xli. chapitre Fo. 102. ☞ Addicion ¶ Whether a man shal be bouÌ„de by the act or offeÌ„ce of his seruaunt or officer The .xlii. chapitre Fo. 104. ♣ Addicion ¶ Whether a villayn or a bondeman may gyue a waye his goodes The .xliii. chapitre Fo. 106. ¶ If a clerke be promoted to the title of his patrimony after selleth his patrimony falleth to pouerty / whether he shall haue his title therin The .xliiii. chapitre Folio 108. ¶ Diuers questions takeÌ„ out by the Student of the summes called Summa rosella Summa angelica whiche me thiÌ„keth are necessary to be sene how they stande agree with the lawe of the realme The .xlv. chapitre Fo. 111. ¶ Where ignoraunce of the lawe excuseth in the lawes of Englande where nat The .xlvi. chapitre Fo. 115. ¶ Certayne cases groundes where ignorauÌ„ce of the dede excuseth in the lawes of Englande where nat The .xlvii. chapitre Fo. 119. ☞ Addicion ¶ The fyrst question of the Doctour how the law of Englande may be sayde reasonable that prohibiteth cÌ„ The .xlviii. chapitre Fo. 120. ¶ The seconde question of the Doctoure whether the warranty of the longer brother that is takeÌ„ as heyre bycause it is nat knowen but that the eldest brother is ded be in conscience a barre to the eldest brother as it is in the lawe The .xlix. chapitre Fo. 124. ¶ The thyrde question of the Doctoure / whether if a maÌ„ procure a collaterall warranty to extincte a right that knoweth another man hath to lande be a barre in coÌ„science as it is in the lawe The .l. chapitre Fo. 127. ¶ The fourth question of the Doctoure / is of wreke of the see The .li. chapitre Folio 129. ¶ The fyft question of the Doctour / whether it stande with conscience to prohibite a Iurye of meate drynke tyll they be agreed of theyr verdite The .lii. chapitre Folio 131. ¶ The .vi. question of the Doctoure is / whether the colours that be gyuen at the comon lawe in assises / accions of trespas and diuers other accions stande with coÌ„science bycause they be moste comonly feyned and nat trewe The .liii. chapitre Folio 132. ☞ Addicion ¶ The .vii. questioÌ„ of the Doctour / coÌ„cerneth the pleadynge in assise whereby the tenementes vse somtyme to pleade iÌ„ suche maner that they shall confesse no ouster The .liiii. chapitre Fo. 137. ¶ The .viii. questioÌ„ of the Doctour / how the statute that was made in the .xlv. yere of kynge Edwarde the thyrde concernynge the tythe of woode maye stande with conscience The .lv. chapitree Folio 140. ¶ Finis Tabule ¶ Thus endeth the seconde Dialogue in Englisshe / with the Addicions bytwene a Doctoure of of diuinitie and a Student in the lawes of EnglaÌ„de which treateth of diuers thynges that be shortly touched in the fyrst lesse of thê present boke before the introduccion ¶ Imprynted at LoddoÌ„ in the Fletestrete / by me Robert Redman dwellynge in saint Dunstones parysshe / nexte the churche In the yere of our lorde god M. CCCCC.XXXii The fyrst day of the moneth of Iuly ⸫