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
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
¶ 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
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
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 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
moste parfite knowlege of any lawe or cunnyng And of the most parfite and moste true applyenge of the same / to any particuler acte of man / foloweth the moste ê“fite / the most pure / the most beste conscieÌ„ce And if therebe defaute in knowynge of the trouthe of suche a lawe / or in the applyenge of the same to any ê‘ticuler acte / than therupon foloweth an errour or defaute in conscience / as it may appere by this example Sinderesis ministeryth a vniuersal principle that neuer erreth / that is to say / that an vnlawful thiÌ„ge is nat to be done And than it myght be taken by some man that euery othe is vnlawful / bycause our lorde saythe Matth. v. Ye shall in no wyse swere And yet he that by reason of the sayde wordes wyll holde that it is no lawfull in no case to swere / erreth in conscieÌ„ce / for he hath nat the ê“fite knowlege and vnderstandynge of the trouth of the sayd gospel / nor he reduceth nat that sayeng of scripture / to other scriptures / in whiche it is grauÌ„ted that iÌ„ some case an othe may be lawfull and the cause why conscience maye so erre in the sayd case and in other lyke / is bycause conscience is formed of a certayne particuler ê“posicion or question grouÌ„ded vpon vntuersal rewles ordeyned for suche thynges as are to be done And bycause a particuler proposicion is nat knowen of hymselfe / but must appere beserched by a diligeÌ„t serche of reason / therfore in that serche in the conscience that shulde be formed therupon may happen to be errour / therupon it is sayd that there is errour in coÌ„science / whiche errour commeth eyther bycause he dothe nat assente to that he ought to assent vnto / or els bycause his reason wherby he dothe referre one thynge to another is disceyued For further declaracion wherof it is to vnderstande that errour in coÌ„scieÌ„ce coÌ„meth .vii. maner of wayes Fyrste is throughe ignorance and that is whan a man knoweth nat what he ought to do / what he ought nat to do and than he ought to aske conceyll of them that he thynketh moste experte in that science wherupon his doute ryseth And if he can haue no conceyll / thaÌ„ he muste holly coÌ„myt hym to god he of his goodnes wyll so ordre hym / that he wyll saue hym from offence The seconde is through necligence / as whan a man is necligent to serche his owne conscience / or to enquere the trouthe of other The thyrde is throughe pryde / as whan he wyll nat mekyn hym selfe ne beleue them that be better and wyser than he is The fourthe is throughe singularitie as when a man foloweth his owne wyt / and wyll nat conferme hym selfe to other / nor folowe the good common wayes of good men The fyfth is through an in ordinat affeccion to hym selfe / wherby he maketh coÌ„sciensce to folowe his desyre / so he causeth her to go out of her ryght course The sixte is throughe pusillaminite whereby some persone dredeth oft tymes suche thinges as of reasoÌ„ he ought nat to drede The seuynth is throughe perplexitie / that is when a man beleueth hym selfe to be so set betwyxte two sinnes that he thynketh it vnpossible / but that he shall fall in to the one but a man can neuer be so proplexed iÌ„ dede but through an Erour in conscience if hy wyll put away that errour he shal be deliuered Therfore I praye the that thou wylte alwayes haue a good conscience if thou haue so / thou shalt always be mery / if thyne owne herte reproue the nat thou shalte alwayes haue inwarde peace The gladnes of rightewyse men is of god in god / theyr ioye is always in trouth and goodnes There be many diuersities of coÌ„science / but there is none better then that / wherby a man truely knoweth hym selfe Many men know many great hygh coÌ„nynge thynges yet know nat them selfe truely he that knoweth nat hym self knoweth no thyng wel Also he hath a good a clene conscience / that hath puritie clennes in his herte / trouth in his worde / and rightwysenes in his dede And as a lighte is sette in a lanterne that all that is in the house maye ben seen therby so almyghty god hath sette conscience in the myddes of euery resonable soule as a lyght wherby he may discerne know what he ought to do / what he ought nat to do Therfore for as moche as it behoueth the to be occupyed in suche thynges as perteyne to the lawe It is necessary that thou euer holde a pure a clene coÌ„scieÌ„ce / specially in suche thyngê as coÌ„cerne restitucion for the synÌ„e is nat forgyuen / but the thynge that is wrongfully taken be restored And I conceyll the also that thou loue that is good / and flye that is euyll / and that thou do to another as thou woldest shulde be done to the that thou do no thinge to other that thou woldest nat shulde be done to the. That thou do no thyng agaynste trouth / that thou lyue peasablye with thy neyghboure / that thou do iustice to euery man as moche as in the is And also that in euery generall rule of the lawe / thou do obserue kepe equite and if thou do thus I trust the lyght of thy lanterne / that is thy conscience shall neuer be extyneted ¶ Stud. But I pray the shewe me what is that equitie that thou haste spoken of byfore / that thou woldest that I shulde kepe ¶ Doctour I wyll with good wyll shewe the somwhat therof ☞ What is Equytie The .xvi. Cha. Doctoure Equytie is a ryghtwystnes that considereth all the ê‘ticuler circuÌ„stances of the dede / the whiche also is tempered with the swetnes of mercy And suche an equytie muste alway be obserued in euery lawe of man / and in euery generall rule therof / that knewe he well that sayd thus Lawes couet to be rewled by equytie And the wyse man sayth Be nat ouer moche ryghtwyse for the extreme ryghtwysenes is extreme wronge / as who sayth yf thou take all that the wordes of the lawe gyueth the / thou shalte somtyme do agaynste the lawe And for the playner declaracion what equytie is thou shalte vnderstaÌ„de that syth the dedes and actes of men / for whiche lawes ben ordeyned happen in diuers maners infinitlye It is nat possible to make any general rule of the lawe / but that it shal fayle in some case And therfore makers of lawes take hede to suche thynges as may often come nat to euery particuler case / for they coulde nat though they wolde And therfore to folowe the wordes of the lawe / were in some case both agaynst Iustice the comon welth wherfore in some cases it is necessary to leue the wordes of the lawe / to folowe that reason
and Iustice requyreth / to that intent equytie is ordeyned that is to say to tempre mittigate the rygour of the lawe And it is called also by some men Epicata / the whiche is no other thyng but an excepcion of the lawe of god / or of the lawe of reason from the general rules of the law of man whan they by reason of theyr generalytie wolde in any particuler case iuge agaynste the lawe of god / or the lawe of reason / the whiche excepcion is secretly vnderstaÌ„de in euery generall rule of euery positiue lawe And so it appereth that equyte taketh nat awaye the very ryght / but only that / that semeth to be ryght by the general wordes of the lawe nor it is nat ordeyned agaynst the cruelnes of the lawe / for the lawe in suche case generally taken is good in hym selfe / but equytie foloweth the lawe in all particuler cases where ryght Iustice requyreth / nat withstandynge that a generall rule of the law be to the coÌ„trary wherfore it appereth that if any lawe were made by man without any suche excepcion expressed or implyed it were manifestly vnresonable and were nat to be suffered / for such cases myght come that he that wolde obserue that lawe shulde breke bothe the lawe of god the lawe of reason As if a man make a vowe that he wyl neuer eate whyte meate / after it happeneth hym to come there where he can gette none other meate In this case it behouyth hym to breke his auowe / for that particuler case is excepted secretely frome his generall auowe by this equytie or epykay / as it is sayd byfore Also if a lawe were made in a cytie that no man vnder the payne of deth shulde open the gates of the cytie before the sonne rysynge yet if the cytezens byfore that houre fleynge frome theyr ennemyes come to the gates of the cytie / one for sauynge of the cytyzens openeth the gates byfore the houre appoynted by the lawe / yet he offeÌ„deth nat the lawe / for that case is excepted from the sayde generall lawe by equytie / as is sayd byfore and so it appereth that equytie rather foloweth the intent of the lawe / then the wordes of the lawe And I suppose that there be in lykewyse some lyke equyties grounded vpon the generall rules of the lawe of the realme ¶ Stud ye yerely wherof one is this There is a general ê“hybicion in the lawes of Englande that it shall nat be lawful to no man to entre iÌ„ to the freholde of another with out auctoritie of the owner or of the lawe but yet it is excepted from the sayd ê“hybicion by the lawe of reason that if a man dryue beastes by the hyghe waye the beastes haphen to escape in to the corne of his neyghboure And he to brynge out his beastes that they shulde do no hurte gothe in to the grouÌ„de fetteth out the beastes there he shall iustifye that entre in to the grounde by the lawe Also nat withstandyng the statute of Edwarde the thyrde made the. 23. yere of his reygne / wherby it is ordeyned that no man vpon payne of imprisonement shulde gyue any almesse to any valiant begger / that is wel able to laboure yet if a man mete with suche a valiaÌ„t begger in so colde a wether so lyght apparell / that if he haue no clothes he shall iÌ„ at be able to come to any towne to haue succoure / but is lykely rather to dye by the waye he therfore gyueth hym apparell to saue his lyfe he shal be excused of the sayde statute by suche an excepcion of the lawe of reason as I haue spoken of ¶ Doc. I knowe well that as thou sayest he shal be exceptyd of the sayde statute by coÌ„science / and ouer that / that he shall haue great rewarde of god / for his good dede / but I wold wytte whether the partie shal be also discharged in the comon lawe by suche an excepcion of the lawe of reason or nat / for though ignorauÌ„ce inuincible of a statute excuse the partie agaynst god / yet as I haue herde it excusyth nat in the lawes of the realme / ne yet in the chauncerye as some say all thoughe the case be so that the partie to whome the forfeyture is gyuen may nat with coÌ„science leue it ¶ Stud verely by thy question thou haste put me in a great doute / wherfore I praye the gyue me a respite therin to make the an answere / but as I suppose for the tyme howe be it I wyll nat fully afferme it to be as I say / but it shulde seme that he shulde well plede it for his discharge at the comon lawe / bycause it shal be taken that it was the inteÌ„t of the makers of the statute to excepte suche cases And the Iuges maye many tymes iuge after the mynde of the makers as farre as the letter may suffre so it semyth they maye in this case And diuers other excepcions there be also from other generall grouÌ„des of the law of the realme by such equyties / as thou hast remembred byfore that were to longe to reherce nowe ¶ Doctor. But yet I pray the shewe me shortly somwhat more of thy mynde vnder what maner a man may be holpen iÌ„ this realme by such equytie ¶ Student I wyll with good wyll shewe the somewhat therin ¶ In what maner a man shal be holpen by equyties in the lawes of EnglaÌ„de The .xvii. Chapitre STudent Fyrst it is to be vnderstande there be in many cases diuers excepcions from the generall grouÌ„des of the lawe of the realme by other reasonable groundes of the same lawe / wherby a man shal be holpen in the comon lawe / as it is of this generall grouÌ„de that it is nat lawful for no man to entre vpon a discent / yet for the reasonablenes of the lawe excepteth from that grouÌ„de an infante that hath ryght hath suffered suche a discent / hym also that maketh coÌ„tinuell clayme and suffereth them to entre / natwitstandynge the dyscent And of that excepcion they shall haue auantage in the comon lawe so it is lykewyse of diuers statutes as of the statute wherby it is ê“hybit / that certayne particuler tenauntes shall do no waste yet if a lease for terme of yeres be made to an infante that is within yeres of discrecion / as of the age of .v. or .vi. yeres and a stranger do waste / in this case this infante shal nat be punysshed for the wast / for he is excepted excused by the lawe of reason And a woman couerte to whome suche a lease is made after the couerture shal be also discharged of waste after her husbandes deth by a reasonable maxime and custome of the realme And also for reparacioÌ„s to be made vpon the same grouÌ„de it is lawfull for suche particuler tenantes to cute downe trees vpon the same
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
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
of a statute shal be taken ferther than the expresse letter stretcheth / but yet there may no entent be taken agaynst the expresse wordes of the statute / for that shulde be rather an interpretacion of the statute than an exposicioÌ„ it can nat be reasonably taken / but that the inteÌ„t of the makers of the statute was that the lande shuld remayne continually in the heyres of the tayle as longe as the tayle endureth / there can no ioyntour be made neyther by dede nor be recouerye / but that the tayle must therby be discontinued / therfore this case of ioyntoure is not lyke to the sayd cases of tenant in dower or tenauÌ„t by the courtesie / for the title of dowrye of tenaunty by the curtesye groweth moste specially by the continuauÌ„ce of the possessioÌ„ in the heyres of the tayle but it is nat so of ioyntoures / therfore by the onely dede of the tenaunte in tayle / there maye no Ioyntour be lawfully made agaynste the expresse wordes of the statute And if there be any made by waye of recouerye / than it semeth that it muste be put vnder the same rewle as other recoueryes muste be of landes intayled ☞ The thyrde question of the Student / concernynge tayled landes ⸫ The .xxix. Chapitre STudent If IohnÌ„ at noke beyng seased of landes in fee of his mere mocioÌ„ make a feoffement of a certayne landes to the inteÌ„t that the feoffes shall therof make a gyfte to the sayde Iohan at noke to haue to him and to his heyres of his body and they make the gyft accordinge And after the sayd Iohan at noke falleth in to dette / wherefore he is taken put in pryson / and therupon for payment of his dettes he selleth the same lande / and for suertye of the byer he suffereth a recouerie to be had agaynst hym in suche maner as byfore appereth / whether standeth that recouerye with conscience or nat ¶ Docto r I wolde here make a litell digression to aske the another question or that I made answere to thyne that is to say to fele thy mynde howe that lawe by the whiche the body of the dettoure shal be taken caste in to pryson there to remayne tyll he haue payde the dette maye stande with conscieÌ„ce specially if the haue nothynge to paye it with / for as it semeth if he wyll relinquisshe his goodes / whiche in some lawes is called in laten Cedere bonis that he shall nat be inprysoned / and that is to vnderstande moste specially if he be fallen in to pouertye and nat through his owne defaute ¶ Student There is no lawe in this realme that the defendaunt may in any case Cedere bonê / and as me semeth if there were suche a lawe it shulde nat be indifferent / for as to the knowlege of hym that the money is owynge to the dettoure mighte Cedere bonis / that is to saye relinquisshe his goodes / and yet retayne to him selfe secretely greate ryches And therefore that lawe in suche case semeth more indiffereÌ„t and rightouse that committeth suche a dettour to the conscieÌ„ce of the plaiÌ„tyfe to whome the money is owynge thaÌ„ that coÌ„mitteth hym to the coÌ„science of hiÌ„ that is the dettour / for in the dettour some defaute maye be assigned / but in hym to whome the money is owynge maye be assinged no defaut ¶ Doctour But if he to whome the dette is owinge / knoweth that the dettoure hath nothyng to pay the det with / that he is falleÌ„ in to that pouertie by some casualtie And nat throughe his owne defaute / doth the lawe of Englande holde that he maye with good conscience kepe the dettour styll in pryson tyll he be payde ¶ Student nay verily but it thinketh more resonable to appoynt the libertie the iugement of conscience in that case to the dette than to the dettoure / for the cause byfore rehersed And than the dette / if he knowe the trouthe is as thou haste sayde bounde in conscience to lett hym go at lybertie though he be nat compellable thereto by the lawe And therfore admittynge it for this tyme / that the law of EnglaÌ„de in this poynt is good iuste I pray the that thou wilte make answere to my question ¶ Doctour I wyll with good wyll / therfore as me semeth for as moch as it appereth that the sayd gyft was made of the mere liberte fre wyll of the said Iohan at noke / without any recompeÌ„ce that therefore it can nat be otherwyse taken / but that the intent of the sayde IohaÌ„ at noke as well at the tyme of the sayd feoffement / as at the tyme that he receyued agayne the sayd gyfte in the tayle / was that if he happened afterwardes to falle in to pouertie / that he might alyen the sayd laÌ„de to releue hym with / for howe may it be though that a man wyll so moche pondre the welthe of his heyre / that he wyll forget hym selfe / so it semeth that nat onely the sayde recouerye standeth with conscience but also that if he had made onely a feoffement of the lande that that feoffement shulde be in conscience a good barre of the tayle / but if the sayd feoffement and gyfte had ben made in consideracioÌ„ of any recompence of money or for any matrimony or suche other / than the feoffemente of the sayd Iohan at noke shulde nat bynde his heyre / and if he than suffred any recouerye thereof than that recouerye shulde be of lyke effecte as other recoueries whereof we haue treated byfore / the whiche I sayd it was good to fauour rather for theyr multitude than for the conscience the same lawe is that if the sonne and the heyre of the sayd Iohan at noke in case that the sayde gyfte was made without recompence alyen the lande for pouertye after the deth of his father that recouerye byndeth nat but as other recoueries do / for it caÌ„ nat be thought that the enteÌ„t of the father was that any of his heyres in tayle shulde for any necessite dissherite all other heyres in tayle that shuld come after hym but for hiÌ„ selfe me thinketh it is resonable to iuge in suche maner as I haue sayd byfore ¶ Student And though the intent of the sayde Iohan at noke whan he made the sayde feoffement / and whan he toke agayne the sayde gyfte in tayle were that if he fell in nede that he mighte alien yet I suppose that he maye nat alien though percase for the more suerte he declared his intent to be suche vpon the lyueries of season for that intente was contrary to the gyfte that he frelye toke vpon hym and whan any intent or condicion is declared or reserued agaynst the state that any maÌ„ maketh or accepteth than suche an inteÌ„t or condicion is voyde by the lawe as by a case that hereafter foloweth wyll appere / that is to
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
seconde question of the Student The .xxii. chapitre Fo. 50. ¶ The thyrde question of the Student The .xxiii. chapitre Fo. 51. ¶ The fourth question of the Student The .xxiii. chapitre Fo. 52 ¶ The .v. question of the Student The .xxv. chapitre Fo. 54. ¶ A question made by the Doctoure / how certayn recoueries that be vsed in the kinges courtes to defete rayled lande maye stande with coÌ„scieÌ„ce The .xxvi. cha fo 55 ¶ The fyrst questioÌ„ of the studeÌ„t / coÌ„cerniÌ„g tayled laÌ„des The .xxvii. chapi Fo. 65. ¶ The .ii. questioÌ„ of the studeÌ„t / coÌ„cerning tayled laÌ„des The .xxviii. chapi Fo. 66. ¶ The thyrde question of the Student / concernynge tayled landes The .xxix. chapitre Fo. 68. ¶ The .iiii. question of the StudeÌ„t / coÌ„cernynge recoueries of enheritauÌ„ce entayled The .xxx. chapitre Fo. 70. ¶ The .v. question of the StudeÌ„t / concernynge tayled landes The .xxxi. chapitre Folio 72. ¶ The .vi. questioÌ„ of the StudeÌ„t / coÌ„cerniÌ„g tayled laÌ„des The .xxxii. chapi Fo. 74. Addicion Fo. 77. ¶ Finis Tabule ¶ Thus endeth the fyrste Dialogue in Englisshe / with the Addicions bytwene a Doctoure 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 LondoÌ„ 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 ∴ Robert Redman ¶ The seconde dyalogue in englysshe / bytwene a doctour of diuynyte and a student in the lawes of Englande / newly corrected and imprinted with newe addycions HEre after foloweth the Seconde dyaloge in englisshe bytwene a doctour of diuinite a student in the lawe of EnglaÌ„de In the begynnynge of which dyalogue the doctour answereth to certayne questions / whiche the student made to the doctoure before the makynge of this dyalogue concernynge the lawes of Englande conscieÌ„ce / as appereth in a dyalogue made bytwene them in latin the 24. chap. And he answereth also to diuers other questions that the studeÌ„t maketh to hym in thê dyaloge of the law of EnglaÌ„de and conscieÌ„ce And in diuers other chapiters of this present dyalogue is touched shortly / howe the lawes of Englande are to be obserued kepte in this realme / as to temporall thyngê as well in lawe as in conscieÌ„ce before any other lawes And in some of the chapitres therof is also touched that spirituall Iuges in diuers cases be bounde to gyue theyr iugemeÌ„tes accordynge to the kyngê lawe And in the later ende of the boke the doctoure moueth diuers cases concernynge the lawes of England / wherin he douteth howe they may stande with conscience / wherunto the student maketh answere in suche maner as to the reder wyll appere ¶ The introductyon STudent In the later ende of our fyrste dyalogue iÌ„ latyn / I put dyuers cases grounded vpon the lawes of EnglaÌ„de / wherin I douted and yet do what is to be holden therin in conscyence But for as moche as the tyme was than farre paste / I shewed the that I wolde not desyre the to make answere to theÌ„ forthwith at that tyme / but at some better leyser whervnto thou saydest thou woldest nat only shewe thyne opinyon in tho cases / but also in suche other cases as I wolde put wherfore I pray the now for as moche as me thinkethe thou haste good leyser that thou wylte shewe me thyne opinyon therin ¶ Doctour I wyll with good wyll acomplysshe thy desyre but I wolde that whan I am in doute what the lawe of this realme is in suche cases as thou shalte put / that thou wylte shewe me what the lawe is therin for though I haue by occasyon of our first dyalogue in latyn / lerned many thiÌ„ges of the lawes of this realme / which I knew nat before yet neuerthelesse there be many mo thynges that I am yet ignorant in / that peraueÌ„ture in these selfe cases that thou haste put / and entendest here after to put and as I sayd in the first dyalogue in latyn / the .xx. chapyter / to serche conscyence vpon any case of the lawe / it is in vayne / but where the lawe in the same case is perfytely knowen ¶ Student I wyll with good wyll do as thou sayest / I entende to put dyuers of the same questyons that be in the laste chapytre of the sayde dyalogue in latyn and somtyme I entende to alter some of them and to adde some newe questyons to them / suche as I shall be moste in doute of ¶ Doctour I pray the do as thou sayest / I shall with good wyll eyther make answere to them forthwith as well as I can / or shall take lenger respyte to be aduysed / or els perauenture agre to thyne opinyon therin / as I shall se cause But fyrst I wolde gladly know the cause why thou hast begon this dyalogue in the englysshe tonge / nat in the latyn toÌ„ge / as the fyrst cases that thou desyredest to knowe myne opinyon be in / or in frenche as the substaunce of the lawe is ¶ Student The cause is this It is ryght necessary to all men in this realme / bothe spirituall temporall for the good orderiÌ„ge of theyr coÌ„scieÌ„ce to knowe many thyngê of the lawe of Englande that they be ignoraunt in And thoughe it had ben more pleasaunt to them that be lerned in the latyne tonge to haue had it in latyne rather than in englysshe yet neuerthelesse for as moche as many can rede englysshe that vnderstaÌ„de no latyn / some that can nat rede englysshe by heriÌ„ge it redde may lerne diuers thynges by it that they shulde nat haue lerned if it were in latyn Therfore for the ê“fite of the multitude it is put into the englysshe tonge rather than into the latyn or freÌ„che tonge For if it had ben in frenche fewe shulde haue vnderstande it / but they that be lerned in the lawe / and they haue leste nede of it / for as moche as they knowe the law in the same cases wtout it / can better declare what conscieÌ„ce wyll therupon / than they that knowe nat the lawe nothiÌ„ge at all To them therfore that be nat lerned iÌ„ the lawe of the realme this treatice is specially made / for thou knowest well by suche studyes thou haste taken to some knowlege of the law of the realme that is to them moste expedient ¶ Doctoure It is true that thou sayest therfore I praye the nowe procede to thy questions ¶ The fyrst question of the Student The fyrste chapitre STtudent If tenant in tayle after possibilitie of issue extincte do wast / whether dothe he therby offende in conscience thoughe he be nat punysshable of waste by the lawe ¶ Doctoure Is the lawe clere that he is nat punysshable for
hym no disobedience / for a disobedience implieth a knowelege of that he shulde haue obeyed vnto ¶ Student It semeth iÌ„ this case that he shulde be coÌ„pelled to take knowlege of the sute at his peryll / for sythe he hathe atteÌ„pted to offeÌ„de the lawe it semeth reasoÌ„ that he shal be compelled to take hede what the lawe wyll do agaynst hym for it / and nat onely that but that he shulde rather offre amendes for his trespasse than for to tary tyll he were sued for it And so it semeth the ignoraunce of the sute is of his owne defaute / specially syth iÌ„ the lawe is set suche ordre that euery man may knowe if he wyll what sute is taken agaynst hym / and may se the recordes therof whan he wyll / so it semeth that neyther the partye nor the lawe be nat bounden to gyue hym no knowlege therin And ouer this I wolde somwhat moue ferther in this mater thus That though the accioÌ„ were vntrue / the defendauÌ„t nat gylthy / that yet the goodes be forfeyted to the kyng for his nat apparauÌ„ce in lawe also in conscieÌ„ce / that for this cause / the kyng as souereyne hed of the lawe is bouÌ„den of iustice to grauÌ„t such writtes and such ê“cesses as be oppoynted in the lawe to euery ê‘sone that wyll complayne be his surmyse true or false / there vpon the kynge of iustice oweth as well to make processe to bryng the defendaunt to answere whaÌ„ he is nat gyltye as whan he is gyltie / thaÌ„ whaÌ„ there is no maxime in the lawe that if a man be outlawed in suche maner as before apê‘eth that he shall forfayte all his goodes to the kynge / maketh no excepcioÌ„ whether the accioÌ„ be true or vntrue / it semeth that the sayd maxime more regardeth the generall ministracion of iustice than the particuler ryght of the party that therfore the property by the outlawry by the sayd maxime ordeyned for ministracion of iustice is altered and is gyuen to the kynge as byfore appereth / that both in lawe and coÌ„science as wel as if the accion were true And than the ê‘tie that is so outlawed is dryuen to sue for his remedy agaynste hym that hath so caused hym to be outlawed vpon an vntrue accioÌ„ ¶ Doct. If he haue nat sufficient to make recompence or dye before recouere can be had / what remedy is than ¶ Student I thynke no remedy / and for a ferther declaracion in this case and in suche other lyke cases where the propertie of goodes maye be altered without asseÌ„t of the owner it is to coÌ„sydre that the ê“pertie of goodê be nat gyueÌ„ to the owners directly by the law of reason nor by the lawe of god but by the lawe of man / is suffred by the lawe of reason by the law of god so to be For at the begynnyng al goodê were in comoÌ„ / but after they were brought by the lawe of man into a certeyne ê“pertie so that euery man myght knowe his owne thaÌ„ whan such ê“pertie is gyueÌ„ by the law of maÌ„ the same lawe may assigne such coÌ„dicioÌ„s vpoÌ„ the ê“pertie as it lysteth / so they be nat agaynst the lawe of god ne the lawe of reason / and may lawfully take away that it gyueth / appoynt howe longe the ê“perty shall continue And one coÌ„dicioÌ„ that goeth with euery ê“perty iÌ„ this realme is if he that hathe the ê“perty be outlawed accordyng to such proces as is ordeyned by the lawe / that he shal forfayte the propertie vnto the kyng / and diuerse other cases there be also wher by propertie in goodê shal be altered in the lawe and the ryght in landes also without assente of the owner / wherof I shall shortely touche some without laynge any aucthorite therin / for the more shortnes Fyrst by a sale in open marked the propertie is altered Also goodes stolen and seased for the kynge or weyued be forfaite oneles appelle or enditement be sued Also strayes if they be proclaymed and be nat after claymed by the owner within the yere be forfayte / also a deodand is forfayte to whome so euer the property was byfore / except it belonged to the kynge and shal be disposed for the soule of hym that was slayne therwith and a fyne with a nonclayme at the comoÌ„ lawe was a barre if claime were nat made within a yere as it is nowe by statute if the clay We be nat made withiÌ„ .v. yeres And al these forfaytures were ordeyned by the lawe vpon certayne consideracions whiche I omit at this tyme / but certeyne it is that none of theÌ„ was made vpoÌ„ a better coÌ„sideracion than this forfayture of outlagary was For if no especiall punisshemeÌ„t shulde haue ben ordeyned for offenders that wolde absent them selfe nat appere whan they were sued in the kyngê courtes many sutes in the kinges courtes shulde haue ben of smale effecte And sythe this maxime was ordeyned for the execucion of Iustice and as moche done therin by the comon lawe as policie of maÌ„ coulde reasonably deuise to make the partie haue knowelege of the sute and nowe is added therto by the statute made the syxte yere of kynge Hnry the .viii. that a writte of proclamacion shal be sued if the partie be dwellynge in a nother shyre / it semeth that such title as is gyueÌ„ to the kyng therby is good in coÌ„scieÌ„ce / especially seyng that the kyng is bounden to make processe vpon the surmyse of the playntyfe may nat examine but by the ple of the partie whether the surmyse be true or nat But if the partie be retourned .v. tymes called where in dede hf was neuer called as in the seconde case oe the laste Chapitre of the sayd dialogue iÌ„ latyne is conteyned / than it semeth the partie shall haue good remedy by petition to the kynge / specially if he that made the returne be nat sufficient to make recoÌ„pence or dye byfore recouere can be had ¶ Doct. Nowe syth I haue herde thyne opinion in this case wherby it appereth that many thyngê muste be sene or a ful and a playne declaracion can be made in this behalfe / seyng also that the plaine answere to this case shall gyue a great lyght to dyuerse other cases that may come by suche forfeyture I pray the gyue me a ferther respyte or that I shewe the my ful opinion therin / and here after I shall ryght gladly do it And therfore I pray the procede nowe to some other case ⧠The thyrde question of the student The fourth Chapitre STudent If a straunger do waste in laÌ„des that a nother holdeth for terme of lyfe without assent af the tenaunt for terme of lyfe wether may he in the reuercion recouer treble damages and the place wasted agaynste the tenaunt for terme of lyfe accordyng to the statute in conscience as he may by the lawe if
though it were as thou sayst / yet thou cannest nat say but that there is as great defaut in hiÌ„ as is in hym in the reuercion / that there is as great reason why he shulde be charged with the waste as that he in the reuercion shulde be disherited and haue no maner remedy ne yet no profytte of the lande as the other hathe / and thoughe he sayd maxime may be thought very streyt to the sayd tenauntes yet is it for to be fauoured as moche as may be reasonably / bycause it helpeth moche the comon welthe / for it hurteth the comon welthe greately whan wodes and houses ben destroyed / if they shulde answere for no waste / but for waste done by them selfe there myght be waste done by straungers by theyr coÌ„mauÌ„demeÌ„t or assent in suche colourable maner that they iÌ„ the reuercion shulde neuer haue ê“fe of theyr assent ¶ Doctoure I am coÌ„tent thyne opinion stande for this tyme / and I praye the nowe procede to a nother question ⧠The fourth question of the student The .v. Chapitre STudente If he that is the very heyre be certified by the ordinarie bastarde and after bryng an accion as heyre agaynste an other ê‘sone / whether may any man knowyng the trouthe be of counsayle with the tenaunt and plede the sayd certificate agaynst the demaundaunt by conscience or nat ¶ Doctoure Is the lawe in this case that al other against whome the demaundaunt hathe tytle shall take aduaÌ„tage of this certificate as well as he at whose sute he is certified bastarde ¶ Student ye verely / that for two causes / wher of the one is this There is an old maxime in the lawe that a mischyfe shal be rather suffred thaÌ„ an inconuenieÌ„ce / than in this case if a nother writte shuld afterwarde be sent to a nother bysshope iÌ„ an other accion to certifie wether he were bastarde or nat / peraduenture that bysshope wolde certifie that he were mulier / that is to say lawfully begotten and than he shulde recouer as heyre / and so he shulde in one selfe court be taken as mulier bastarde / for auoydynge of whiche contrariosyte the lawe wyll suffre no mo wrytes to go forth in that case / and suffreth also all men to take aduauntage of that certificate rather thaÌ„ to suffre suche a contradicion in the courte whiche in the lawe called an inconuenieÌ„ce / the other cause is bycause this certificate of the bysshope is the hyest trial that is iÌ„ the law iÌ„ this behalfe But this is nat vnderstaÌ„de but where bastardy is layde in one that is ê‘ty to the wryt / for if bastardy be layde in one that is estraÌ„ge to the writ as iÌ„ a vouch pray en ayde or suche other / than that bastardy shal be tried by .xii. meÌ„ by which triall he iÌ„ whome the bastardy is layde shall nat be coÌ„cluded bycause he is nat priue to the trial may haue no attaiÌ„t / but he that is ê‘ty to the issue may haue attaint / therfore he shal be coÌ„cluded none other but he for as moche as the sayd maxime was or deyned to eschewe an incoÌ„uenieÌ„cy as byfore apê‘eth it semeth that euery man lerned may with coÌ„scieÌ„ce plede the said certificate for auoydyng therof / gyue couÌ„saill therin to the ê‘ty accordyng vnto the lawe for els the sayd incoÌ„uenieÌ„cy must nedely folowe But yet neuertheles I do nat meane therby that the party may after whan he hath barred the demauÌ„daÌ„t by the sayd certificate reteine the lande in coÌ„scieÌ„ce by reason of the sayd certificate / for though ther be no lawe to coÌ„pel hym to restore it / yet I thynke well that in coÌ„science he is bounde to restore it / if he knowe that the demaundauÌ„t is the very true heyre wherof I haue put diuerse cases lyke in the .xvii. chapi of our fyrst dialogue iÌ„ latyn but my enteÌ„t is that a maÌ„ lerned iÌ„ the lawe iÌ„ this case other lyke may with coÌ„scieÌ„ce gyue his counsayle accordynge to the lawe in auoydyng of such thyngê as the lawe thynke it shuld for a resonable cause be eschewed ¶ Doc. Though he that doth nat know whether he be bastarde or nat may gyue his counsayle also plede the sayd certificate yet I thynke that he that doth knowe hym selfe to be the very true heyre may nat plede it / that is for two causes Wherof the one is this Euery man is bounde by the lawe of reason to do as he wolde be done to / but I thynke that if he that pledeth that certificate were in lyke case he wold thynke that no maÌ„ knowyng the sayd certificate to be vntrue myght with conscience plede it agaynst hiÌ„ / wherfore no more may he plede it agaynst none other The other cause is this / although the certificate be pleded yet is the tenaunt bouÌ„den in conscience to make restitucion therof as thou hast sayd thy selfe / thaÌ„ in case that he wolde nat make restitucion / than he that pleadeth the plee shulde renne therby in lyke offence / for he hathe holpen to set the other man in suche a liberty that he may chose whether he wil restore the laÌ„de or nat / and so he shulde put hym selfe to the ieoparty of a nother mannes conscience And it is wryten Ecclesiasti .iii. Qui amat periculum peribit in illo That is / he that wylfully wyll put hiÌ„ selfe in ieoparty to offende shal perysshe therin / and therfore it is the surest way to eschew perylles / fro hym that knoweth that he is heyre nat to plede it / and as for the inconuenience that thou sayest must nedely folowe but the certificate be pleded as to that it may be answered that it maye be pleded by some other that knoweth nat that he is very heyre / and if the case be so farre put that there is none other lerned there but he than me thynketh that he shall rather suffre the sayd inconuenience than to hurt his owne conscience / for alwaye charite beginneth at him selfe so euery man ought to suffre all other offences rather than he hym selfe shulde offende And nowe that in this case I pray the procede to thou knowest myne opinion a nother question ⧠The .v. question of the student The .vi. Chapitre STudent Whether may a man with coÌ„science be of counsayle with the playntyfe in an accion of the comon lawe knowynge that the defendaunt hathe sufficient mater in conscience wherby he may be discharged by a Sub pena in the chauÌ„cery whiche he can nat pleade at the comoÌ„ lawe or nat ¶ Doctoure I praye the put a case therof in certeyne for els the questioÌ„ is very generall ¶ Student I wyll put the same case that thou puttest iÌ„ our fyrste dialogue in latyne the .x. Chapitre that is to say / if a man bounde in an obligacion / pay the money taketh none acquitaunce so that by
the comon lawe he shal be compelled to pay the money agyne for suche coÌ„sideracion as appereth in the .xv. chapitre of the sayd dialogue where it is shewed euidently howe the lawe in that case is made vpon a good reasonable grouÌ„de moche necessary for all the people / howe be it that a man may somtyme throughe his owne defaut take hurte therby / wherin I pray the shewe me thyne opinion ¶ Doctoure this case semeth to be lyke to the case that thou haste put nexte byfore this / that he that knoweth the payment to be made doth nat as he wolde be done to if he gyue couÌ„sayle that an accion shulde be taken to haue it payd agayne ¶ Sudent If he be sworne to gyue counsayle accordynge to the lawe as sergeauntes at the lawe be it semeth he is bounde to gyue counsayle accordyng to the lawe / for els he shulde nat ê‘fourme his othe ¶ Doctour In those wordes accordyng to the lawe is vnderstande the lawe of god and the lawe of reason as well as the lawe customes of the realme / for as thou hast said thy selfe iÌ„ our fyrst dialogue in latyn that the lawe of god and the lawe of reason be two especiall groundes of the lawes of EnglaÌ„d Wherfore as me thiÌ„keth he may gyue no couÌ„saile sauing his othe neyther agaynste the lawe of god nor the lawe of reason / and certayne it is that this article that is to say / that a man shall do as he wolde done to is grouÌ„ded vpon both the sayd lawes And fyrst that it is grounded vpon the lawe of reason it is euideÌ„t of it selfe And in the .vi. Chap. of saynt Luke it is said Et prout vultis vt faciant vobis homines et vos facite illis similiter That is to saye / all that ye wyll that other men shulde do to you do you to them / so it is grouÌ„ded vpon the lawe of god / wherfore if he shulde gyue couÌ„sayle agayne the defendauÌ„t in that case he shulde do agaynst both the sayd lawes ¶ Stu. If the defendaunt had none other remedy but at the comon lawe I wolde agree well it were as thou sayest / but in this case he maye haue good remedy by a Sub pena / this is the waye that shall induce hiÌ„ directly to his Sub pena / that is to say / whaÌ„ it appereth that the playntyfe shal recouer by the law ¶ Doc. Though the defeÌ„daÌ„t may be discharged by Sub pena / yet the bryngyng iÌ„ of his ê“fes there wyll be to the charge of the defeÌ„daÌ„t / also the ê“fes may dye or they come in Also ther is a grouÌ„de iÌ„ the lawe of reasoÌ„ / qd nihil possimê° coÌ„tra veritatem / that is / we may do nothiÌ„g agaiÌ„st the trouth / syth he knowethe it is trouthe that the money is paid he may do nothiÌ„g agaiÌ„st the trouth if he shuld be of coÌ„sayle with the plaiÌ„tyf he must suppose auerre that it is the verey due det of the plaiÌ„tyfe / that the defeÌ„dauÌ„t withholdeth it fro hiÌ„ vnlawfully / which he knoweth hiÌ„ selfe to be vntrue / wherfore he may nat with coÌ„scieÌ„ce iÌ„ this case be of couÌ„sayle with the plaiÌ„tyfe / knowyng that the plaiÌ„tyf is paied al redy / wherfor if thou be contented with this answere I praye the procede to some other question ¶ Stud. I wyll with good wyll ⧠The .vii. question of the student The .vii. Chapitre STudent A man maketh a feoffement to the vse of hym and of his heyres / after the feoffour putteth in his beestes to manure the grounde and the feoffe taketh them as damages fesaunt and putteth them in pounde / and the feoffour bryngeth an accion of trespasse agaynste hym for entryng into his grounde cÌ„ whether may any man knowyng the sayd vse be of couÌ„sayle with the feoffe to auoyde that accion ¶ Doctoure Maye he by the comon lawe auoyde that accion seynge that the feoffour ought in conscience to haue the ê“fytes ¶ Student ye verely / for as to the comon lawe the hole interest is iÌ„ the feoffe and if the feoffe wyll breke his conscience take the profytes the feoffour hath no remedy by the comon lawe but is dryuen in that case to sue for his remedy by Sub pena for the profytes / and to cause hym to refeoffe him againe / and that was somtyme the moste comon case where the Sub pena was sued / that is to say / byfore the statute of Rycharde the thyrde but syth that statut the feoffour may lawfully make a feoffement But neuertheles for the profytes receyued the feoffour hathe yet no remedy but by Sub pena as he had byfore the said estatute And so the supposell af this accioÌ„ of trespasse is vntrue in euery poynt as to the comon lawe ¶ Doctoure Thoughe the accion be vntrue as to the lawe yet he that sueth it ought in conscience to haue that he demaundeth by the accion / that is to say / damages for the profytes / and as it semeth no man may with conscience gyue counsayle agaynste that he knoweth conscience wolde haue done ¶ Stu. Thouhe conscience wolde he shulde haue the profytes / yet conscience wyll that for the attayning therof the feoffour shulde make an vntrue surmyse Therfore agaynste that vntrue surmyse euery man may with conscience gyue his counsayle / for in that doyng he resysteth nat the playntyfe to haue the profytes / but he withstaÌ„deth hym that he shulde nat maintaine an vntrue accion for the profites And it suffiseth nat iÌ„ the lawe ne yet in conscience as me semethe that a man haue ryghte to that he sueth for / but that also he sue be a iust meanes / and that he haue bothe good ryght and also a good and a true coÌ„ueyauÌ„ce to come to his right for if a man haue ryght to landes as heyre to his father and he wyll bryng an accion as heyre to his mother that neuer had ryght / euery man may gyue couÌ„sayle agaiÌ„st that accion thoughe he knowe he haue ryght by an other meanes / so as me thynketh he may do in dilatories / wherby the partie may take hurte if it were nat pleaded / thoughe he knowe the plaintyfe haue ryght as if the ê‘tie or the towne be misnamed / or if the degrees in wryttes of entre be mistaken / but if the partie shuld take no hurte by admittynge of a dilatorye there he that knoweth that the playntyfe hath ryght may nat pleade that dilatorie with conscience as in a Forme done to pleade in abatement of the wrytte bycause he hathe nat made hym selfe heyre to hiÌ„ that was last seased / or in a wrytte of ryght for that the demaundaunt hath omitted one that tended right ne suche other / ne he may nat assent to the castyng of an Essoyne nor proteccion for hym if he knowe that the demaÌ„dauÌ„t hathe ryght / ne he maye
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
a simple coÌ„tracte ¶ Doctoure To pay the dettes for that is certayne and the trespas is arbitrable ¶ Student Than for the playner declaracion of this matter and other lyke I praye the shewe me thy mynde by what lawe it is that a man maye make executours and that the executours if they take vpon them be bouÌ„de to perfourme the wyl and to dispose the goodê that remayne for the testatour ¶ Doctour I thynke that it is by the lawe of reason ¶ Student And me thynketh it shulde be rather by the custome of the realme ¶ Doctour In al coÌ„treys in all landes they make executours ¶ StudeÌ„t That semeth to be rather by a generall custome after that the lawe and custome of propertie was brought in than by the lawe of reason / for as longe as all thynges were in comon there were no executours ne wylles ne they neded nat thaÌ„ / and whan property was after brought in me thynketh that yet makynge of executours disposyng of goodê by wyll after a maÌ„nes deth folowed nat necessarely there vpoÌ„ / for it myght haue ben made for a law that a man shulde haue had the ê“pertie of his goodê only duryng his lyfe / that thaÌ„ his dettes payed / all his goodê to haue ben lefte to his wyfe clyldren or nexte of his kynne without any legacies makyng ther of so myght it nowe be ordeyned by statute / the statut good nat against reasoÌ„ / wherfor it appereth that executours haue no auctorite by the law of reasoÌ„ but by the lawe of man And by the olde lawe and custome of this realme a man may make executours and dispose his goodê by his wyl / than his executours shall haue the execucion therof his heyres shal haue nothiÌ„g / but if any particuler custome helpe / the executours shall also haue the hole possession ad disposicion of all his goodes and catels / as well reall as personal / thoughe no worde be expressely spoken in the wyl that they shall haue them / and they shall haue also accions to recouer al dettes due to the testatour thoughe all dettes and legacies of the testatour by payed byfore / and shall haue the disposicion of them to the vse of the testatour and nat to theyr owne vse / so me thynketh that the auctorite to make executours and that they shall dispose the goodes for the testatour is by the custome of the realme But than I thynke as thou sayest that by the lawe of god they shal be bounde to doo that fyrste / that is to the moste profite of the soule of theyr testatour where the disposicion therof is lefte to theyr discrecion / and that I agre wel is to pay dettes vpon contractes and to make amendes for wroÌ„ges done to the testatour thoughe they be nat compelled therto by the lawe and custome of the realme if ther be none other dette nor legacie that they be bounde to paye by the lawe / but if two seuerall dettes be payable by the lawe thaÌ„ which dette they shall do fyrst in conscieÌ„ce I am somwhat in doute ¶ Doctoure Let vs fyrste knowe what the comon lawe is therin ¶ Student The comon lawe is that if the testatoure owe .x. li. to two men seuerally by obligacion or by suche other maner that an accion lyeth agaynst his executours therof by the lawe / and he leueth goodes to pay the one and nat both / that in that case he that can fyrst optaine his iugement agaynst the executours shal haue execucion of the hole / and the other shall haue nothynge / but to whiche of them he shall in conscience owe his fauoure the comon lawe treateth nat ¶ Doctour Ther in muste be considered the cause why the dettes beganne / and than he must after coÌ„science bere his lawfull fauoure to hiÌ„ that hathe the clerest cause of dette / and if both haue lyke cause than in coÌ„science he muste bere his fauoure where is moste nede and greatest charite ¶ Student May the executours in that case delay that accioÌ„ that is fyrst taken if it stande nat with so good conscience to be payed as a nother dette wherof no accion is brought and procure that an accion may be brought therof and than to confesse that accion / that he maye so haue execucion / and thaÌ„ the executours to be discharged agaynst the other ¶ Doctour Why may he nat in that case pay the other without accion and so be discharged in the lawe agaynst the fyrste ¶ Sudent No verely for after an accion is taken the executoure maye nat ministre the goodes so / but that he leue so moch as shall pay the dette wherof the accion is taken / if he do he shall paye it of his owne goodes / excepte a nother recouer and haue iugement agaynst hym hangynge that accion and that without couyn ¶ Doctour ThaÌ„ to answere to thy question I thynke that by delayes that be lawfull as by Essoyne / emperlaunce / or by a Dilatory plee in abatement of the wrytte that is true / he may delay it / but he may plede no vntrue ple to preferre the other to his duetie But I pray the what is the lawe of legacies restitucions and dettes vpon coÌ„tractes that perease ought rather after charite to be payed thaÌ„ a dette vpon an obligacioÌ„ what may the fauoure of the executoures do in those cases ¶ Student Nothynge for if they eyther perfourme legacies / make restitucions / or paye dettes vpon contractes kepe nat sufficient to paye dettes whiche they are compellable by the lawe to paye / that shal be taken as a deuastauerunt bona testatoris / that is to saye / that they haue wasted the goodes of theyr testatour and therfore they shal be compelled to paye the dettes of theyr owne goodes / and so it is if they paye a dette vpon an obligacion wherof the day is yet to come thoughe it be the clerer dette that it be the more charite to haue it payed ¶ Doc. yet in that case if he to whome the dette is al redy owynge forbere tyl after the daye of the other obligacion is paste / than he may paye him without daunger ¶ Student That is true if there be no accion taken vpon it though there be / yet if that accioÌ„ may be delayd by lawfull meanes as thou hast spoken of byfore tyll after the day and than an accion is taken vpon it than may the executours confesse that accion and than after iugement he may paye the dette without dauÌ„ger of the lawe ¶ Doctour Is nat that confessyng of the accion so done of purpose a couyn in the lawe ¶ Student No verely / for couyn is where the accioÌ„ is vntrue / and nat where the executours bere a lawfull fauoure ¶ Doctour The ordinary vpon the accompte in all the cases byfore reherced wyl regarde moche what is best for the testatour ¶ StudeÌ„t
thynketh iÌ„ this case that the feoffe oughte in coÌ„scyence to paye the damages fro the deth of her husband seinge that immediately after his deth she ought too haue her dower ¶ Student Thoughe she oughte too be endowed immediately after the dethe of her husbande / yet she can lay no defaute in the feoffe tyll she demaunde her dower vppon the grounde / and that the tenaunte be not there too assigne it / or if he be there that he wyl not assigne it / for he that hath the possessyon of lande whervnto any womaÌ„ hath tytle of dower hath good auctorytye as agaynste her to take the ê“fytes tyll she requyre her dower for euery womaÌ„ that demaundeth dower affermeth the possessyon of the tenaunt as agaynste her and therfore all thoughe she recouer it by accyoÌ„ she leueth the reuercyon alwey in him agaynst whome she recouereth thoughe he be a dysseasour bryngeth nat the reuercyon by her recouery to hym that hath righte as other tenauntes for terme of lyfe do And for this reason it is that the tenaunte in a wrytte of dower where the husbande dyed seased if he appere the fyrst day may saye to excuse hymselfe of damages that he is and all tymes hathe ben redy to yelde dower if it had ben demaunded / so he shall nat be receyued to do iÌ„ a wryt ofcosynage nether iÌ„ the case that thou remembrest aboue / for in bothe cases the renauntes be supposed by the wrytte to be wronge doers / but it is nat so in this case / and so me thynketh it clere that the feoffe iÌ„ this case shall nether be bounde by lawe nor conscience to yelde damages for the tyme that passed byfore the requeste / but for the tyme after the requeste is greater doute / howe be it some thynketh hym nat there bounde to yelde damages bycause his tytle is good as is sayd byfore and that it is her defaute that she brought nat her accyon ¶ Doctour As vnto the tyme byfore the requeste I holde me contente with thyne opinion so that he assigne the dower whan he is required / but whan he refuseth to assigne it than I thynke hym bounde in conscience to yelde damages for bothe tymes though he shall none recouer by the lawe And fyrste as for the tyme after the refusell it appereth euidentely that whan he denied to assigne her dower he dyd agaynste conscieÌ„ce / for he dyd nat that of ryght to haue done by the lawe / ne as he wolde shulde haue ben done to him / and so after the request he holdeth her dower fro her wrongfully ought in conscience to yelde damages therfore And as to the defaute that thou assignest in her that she toke nat her accioÌ„ / that forceth lytel for accioÌ„s nede nat / but where the partie wyll nat do that he ought to do of ryght And for that he ought of right to haue done and dyd it nat / he can take none aduauntage / and than as to the damages byfore the request me thynketh hym also bounden to paye theÌ„ / for whan he was requyred to assygne dower and refused It appereth that he neuer inteÌ„ded to yelde dower fro the begynnyng / so he is a wrong doer in his owne coÌ„science / and more ouer if the husbande dye seased the lawe is such that if the tenaunt refuse to assigne dower whan he is requyred wherfore the womaÌ„ bryngeth a wrytte of dower agaynst him / that in that case the woman shall recouer damages as wel for the tyme byfore the request as after / and yet he ought nat iÌ„ that case after thyne opinioÌ„ to haue yelded any maner of damages if he had ben redy to assigne dower whan it was demaunded / and so me thynketh here ¶ Studente The cause in that case that thou haste put is for that the statute is general that the demauÌ„dauÌ„t shall recouer damages where the husbande dyed seased / and that statute hathe ben alwaye construed that where the tenaunt maye nat saye that he is and hathe ben alway redy to yelde dower cÌ„ that the demaundaunt shall recouer damages fro the dethe of her husbande But in this case there is no law of the realme that helpeth for the damaundauÌ„t neyther comon lawe nor statut / forthermore though it myght be proued by his refusell that he neuer entended fro the deth of the husbande to assigne her dower yet that proueth nat / but that he had good ryght to take the ê“fites of her thyrde parte for the tyme as well as he had of his owne two partes tyl request be made as is afore sayd / and so me thynketh that nat withstandyng the denyer he is nat bounde to yelde damagê in this case but fro the tyme of the request / and nat for the tyme byfore ¶ Doctoure For this tyme I am content with thy reason ⧠The .xii. question of the student The .xiiii. Chapitre STudent A maÌ„ seased of certayne landê knowyng that an other hath good ryght and tytle to them leuieth a fyne with proclamacion to the entent he wolde extyncte the ryght of the other man / the other man makethe no clayme within the .v. yeres / whether may he that leuyed the fyne holde the lande in coÌ„scieÌ„ce as he may do by the lawe ¶ Doctoure By this question it semeth that thou doste agre that if he that leuyeth the fyne had no knowlege of the other mannes ryght that his ryght shulde than be extyncted by the fyne in conscience ¶ Student ye verely / for thou dydest shewe a reasoneble cause why it shulde be so in oure fyrste dialogue in latyne the .xxiiii. Chapitre as there appereth But if he that leuyeth a fyne and that wolde extyncte the ryghte of an other / knowynge that the other hathe more ryghte than he than I doute therin for I take thyne opinion in our fyrste dialogue to be vnderstaÌ„de in conscience where he that wolde extincte former ryghtes by suche a fyne with proclamacioÌ„ knoweth nat of any former tytle but for his more surety if any suche former ryght be he taketh the remedy that is ordeyned by the lawe ¶ Doctoure Whether dost thou meane in this case that thou puttest now that he that hath right knoweth of the fyne and wylfully lettethe the .v. yere pas without claime or that he knoweth nat any thynge of the fyne ¶ Student I pray the let me knowe thyne opinion in bothe cases and whether thou thinke that he that hathe ryght be barred in eyther of the cases by conscience as he is by the law or nat ¶ Doctour I wyll with good wyl here after shewe me thy mynde therin / but at this tyme I praye the gyue a lytell sparyng and procede nowe for this tyme to some other question ⧠The .xiii. question of the student The .xv. Chapitre STudent A man seased of certayne landes in fee hath a doughter whiche is his heyre apparauÌ„te / the doughter taketh a
the feoffement was made to his owne vse And if the feoffemeÌ„t were made vpon a bargayne and a contracte betwene them / than it is to se whether they remembred the rent in in theyr bargayne / or that they remeÌ„bred it nat / if they remembred it in theyr bargayne and contracte / than coÌ„science must folowe the bargaine / as thus if they agreed that the grauntee shulde haue the rent after the porcion in the other acre than by conscience he ought to haue it thoughe it be extincted iÌ„ the lawe And if they agreed that the hoole rente shulde be extyncte and made theyr pryce accordynge than it is extyncte in lawe and conscience / and if they clerely forgete it and made no mencion of it / or for lacke of connynge toke the lawe to be that it shulde continue in the other acre after the porcion and made theyr price accordynge / ponderynge onely the value of the acre that was solde than me thynketh / it dothe continue in conscience after the porcion / and if the feoffement were made to the vse of the grauÌ„tee / than it semeth the hole rente is extyncte in lawe and conscience ¶ Student Than take that to be the case / that is to saye / that the feoffement was made to the vse of the grauÌ„tee ¶ Doctoure What is than thyne opinion therin ¶ Student That the rente shulde abyde in conscience after the porcion for the acre that remayneth in the handes of the grauntoure natwithstandynge it be extyncte in the lawe ¶ Doctoure Than shewe me thyne opinion iÌ„ this that I shall aske the. Of what lawe is it that grauntes of rent and of suche other profites out of landes maye be made and that they shal be good and effectual to the grauÌ„tees / whether is it by the lawe of reason or by the lawe of god or by the custome and lawe of the realme ¶ Studente I thinke it is by the lawe of reasoÌ„ / for by the same reason that a man may gyue awaye all his landes he maye as it semethe gyue awaye the profytes therof or graunte a rent out of the lande if he wyl ¶ Doctour But than by what lawe is it that a man maye gyue awaye his landes / I trowe by none other lawe but by the custome of the realme / for by statute all alienacions and gyftes of landes maye be prohibite / and than that reason proueth nat that grauntes of the ê“fytes of lande or of a rent shuld be good by cause he maye alien the lande / if alienacions of lande be by custome and nat by the lawe of reasoÌ„ as I suppose it is / wherof I touched somwhat in our fyrste dialogue in latyne the .xix. Chapitre And also if grauntes shulde haue theyr effecte by the lawe of reason than reason wolde that they shulde be good by the onely word of the grauntoure as well as by his dede / that is nat so / for without dede the graunt of rent is voyde in the lawe and so my thinketh that grauÌ„tes haue theyr effecte onely by the lawe of the realme ¶ StudeÌ„t Admyt it to be so what meanest thou therby ¶ Doctour I shal shewe the here after as I shall shewe the the cause why I thynke the rente is extyncte in conscience as well as in lawe And fyrste as I take it the reason why it is extyncte in the lawe is bycause the rent by the fyrst graunt was goynge out of bothe acres / and was nat goyng parte out of the one acre and part out of the other / but the hole rent was goyng out of bothe / and than whan the grauntee of his one foly wyll take estate in the one acre wherby that acre is discharged / than the other acre also muste be discharged oneles it shulde be apporcioned and the law wyl nat that any apporcionemeÌ„t shulde be in that case / but rather in as moche as the partie hathe by his owne acte discharged the one acre the lawe dischargeth also the other / rather than to suffre the other acre to be charged coÌ„trarie to the fourme of the graunte / for this reÌ„t begynneth all by the acte of the party and as I haue herde is called a reÌ„t agaynst comoÌ„ ryght / wherfore it is nat fauored iÌ„ the law as a rent seruice is / and than me thynketh that for as moch as it is nat grouÌ„ded by the lawe of reason that grauntes of rent shulde be made out of lande / but by the custome and law of the realme as I haue sayd byfore / that so in lyke wyse it remayneth to the lawe and custome of the realme to determine howe loÌ„g suche rentes shall continue And whan the lawe iugeth suche rentes to be voyde I suppose that so doth conscience also / except the iugement of the lawe be agaynste the lawe of reason or the lawe of god / as it is nat in this case for in this case he that taketh the feoffement hath profite by the feoffement / and knoweth that he hath suche a rent out of the lande / and that his purchace shulde extynct it / wherby it appereth that he asienteth vnto the lawe wherto he was nat compelled / and that is his owne acte and his owne defaut so to do / whiche shall extyncte his hole rent as well in consciente as in the lawe But if he haue no ê“fyte of the lande or be ignoraunt that he hathe suche a rent out of the lande whiche is called ignoraunce of the dede / or if he be ignorauÌ„t that the lawe wolde extyncte his hole reÌ„t therby / which is called ignorauÌ„ce of the lawe / than me thynkethe it remayneth in conscience after the porcion ¶ Student Ignoraunce of the lawe or of the dede helpeth nat but in fewe cases iÌ„ the lawe of Englande ¶ Doctoure And therfore it muste be refourmed by conscience / that is to say by the lawe of reasoÌ„ / for whaÌ„ the generall maximes of the lawe be iÌ„ any particuler cases against the lawe of reason as this maxime semeth to be bycause it excepteth nat theÌ„ that be ignorauÌ„t thoughe it be an ignoraunce in vincible thaÌ„ do they nat agree with the lawe of reason ¶ Student We thynketh that ignoraunce iÌ„ this case helpeth lytell / for whan a man byethe any lande or taketh it of the gyfte of any other he taketh it at his peryl / so that if the tytle be nat good ignorauÌ„ce caÌ„ nat helpe / for the byer muste byware what he byeth / and so in this case if the takyng of the one acre shulde extincte the hole rent in conscience if he were nat ignoraunt / some thynketh it shulde in lyke wyse extincte it also thoughe he be ignoraunt of the lawe or of the dede / for euery man must be compelled to take notyce of his owne tytle and out of what lande his rent is goynge / some thynketh ignoraunce is but lytell to be coÌ„sidered in this case ¶ Doctour
If a man bye laÌ„de or take it of the gyfte of an other it is reason that he take it with the peryll though he be ignorauÌ„t that a nother hath ryght / for it were nat standynge with reason that his ignoraunce shulde extyncte the ryght of a nother / but in this case ther is no doute of the ryght of the lande / but al the doute is howe the rent shal be ordred in conscience if he that hathe the rente take parte of the lande / and therin is great diuersite bytwene hym that is ignoraunt in the lawe / and him that knoweth the lawe / and knowethe well also that he hathe a rent out of that land and other For I put case that he asked counsayle of the grauntour hym selfe therin and he saynge as he thought tolde hiÌ„ that the takyng of the one acre shuld nat extyncte the rent but for the porcion and so he thynkynge the lawe to be toke the other acre of his gyfte Is it nat reasonable in that case that that ignoraunce shulde saue the rent in conscience ¶ Student yes / for there the grauntour hym selfe is partie to his ignoraunce and is in maner the cause therof ¶ Doctour And me thynkethe all is one if any other had shewed hym so / or if he had asked no counsayle at all / for me thynkethe it suffiseth in this case that he be ignorauÌ„t of the lawe / for why / it is more harde in this cas to proue that the rent shulde be extyncte in conscience thoughe he knowe it shal be extyncted in the lawe than to proue that it continueth in conscience after the porcion if he be ignoraÌ„t / thou thy self were of the same opinion / as it appereth in the begynnynge of this present Chapitre / but if that opinion were true it wolde be hard to ê“ue but that the sayd generall maxime were holly agaynste reason / thaÌ„ it were voyd / but I haue sufficiently answered therto as me semethe / and that it is extyncte in the lawe and also in conscience / excepte ignoraunce helpe it to be apporcioned And more ouer for as moch as apporcionemeÌ„t is suffred in the lawe where ê‘te of the land discendeth to the grauntee bycause no defaute can be assigned in hym / so me thynketh no defaute can be assigned in hym in conscience whaÌ„ he is ignorauÌ„t of the lawe or of the dede thoughe suche ignorauÌ„ce do nat excuse in the lawe of the realme ¶ Student I am contente with thyne opinion in this behalfe at this tyme. ⧠The .xv. question of the student The .xvii. Chapitre STudent A maÌ„ grauÌ„teth a reÌ„t charge out of two acres of lande / and after the grauntour enfeoffeth Henry hert in one of the sayd two acres to the vse of the sayd Henry herte and of his heyres / after the sayd Henry herte entendynge to extyncte all the rent causeth the sayd acre to be recouered agaynste hym to his owne vse in a wryt of entre in the post in the name of the grauntee and of other after the comon course / the grauntee nat knowyng of it / and by force of the sayd recouere the other demaundauÌ„tes entre and dye / lyuyng the grauntee / so that the grauÌ„tee is seased of al by the surueiour to the vse of the sayd Henry herte / whether is the sayd rent extyncte in conscience in parte nor in all or iÌ„ no parte ¶ Doctour I am in doute of the lawe in this case ¶ Student In what poynt ¶ Doctoure whether the hole rent be goynge out of the acre that remayneth in the handes of the grauÌ„tour bycause the grauntee cometh to the lande by waye of recouere / or that it shal be extyncte in the law / but after the porcioÌ„ by cause the grauÌ„tee hathe nat the acre to his owne vse / or that the hole reÌ„t shal be extincte iÌ„ the lawe ¶ Student The rent can nat be hoole goynge out of the acre that the grauntoure hathe / for this recouere is vpon a fayned tytle / the grauÌ„tour bycause he is strauÌ„ge to it shal be well resceyued to falsifie it But if the recouerye had ben vpon a true tytle than it had ben as thou sayest / for if the grauntee recouer the one acre agaynst the grauntour vpon a true tytle / the grauÌ„tour shall pay the hole rent out of that laÌ„de that remayneth in his haÌ„de / and as to the vse it maketh no mater to the grauntoure as to the lawe in whome the vse be / for the possession without the vse extynguyssheth the hole rent as agaynst hym in the lawe as well as if the possession vse were both ioyned to gether in the grauntee ¶ Doct. Than me thynkethe that the sayd Henry herte is bounden in conscience to paye the grauÌ„tee the rent after the porcion of that acre that was recouered / for it caÌ„ nat staÌ„de with conscience that he shulde lose his rent and haue no profites of the lande ¶ Student Than of whome shall he haue the other porcion of his rente ¶ Doctoure Is the lawe clere that the acre that the grauntour hath shal be in this case discharged in the lawe ¶ Student I take the lawe so ¶ Doctour And what in conscience ¶ Student As agaynste the grauntoure me thynketh / also it is extyncte in conscience for the reason that thou hast made in the .xvi. Chapitre / for it is all one in conscience in this case as agaynst the grauÌ„tour whether the recouere were to the vse of the grauntee or nat / especially seynge that the grauntoure is nat priuey to the recouery / for the vnite of possession is the cause of extinguisshemeÌ„t of the rent against the grauÌ„toure bothe in lawe and conscience where so euer the vse be / but if the grauntour had ben priuey to the cause of the extynguisshement as he was in the case that I put in the laste Chapitre where the grauntoure enfeoffed the grauntee of one of the acres to the vse of the grauntee there it is nat extyncte in conscience in that acre that remayneth in the handes of the grauntoure thoughe it be extyncted iÌ„ the lawe / bycause he was pryuey to the extynguisshement hiÌ„selfe / but he is nat so in this case / and therfore it is extyncte agaynst hym iÌ„ lawe and conscience And therfore me thynkethe that the grauntee shall in conscience haue the hoole rente of the sayd Henry herte that caused the sayd recouere to be had in his name / for in hym was all the defaute / but it is to be vnderstande that in all the cases where it is sayd byfore in this Chapitre or in the Chapitre nexte byfore that the rent is extincte in the lawe nat in conscience that in suche case all the remedies that the partie myght fyrste haue had for the rent at the comon lawe by distres assyse or otherwyse are determined / and the partie that ought to
haue the rent in coÌ„science shal be dryuen to sue for his remedy by Sub pena ¶ Doctour I am coÌ„tent with thy conceyte in this matter for this tyme. ⧠The .xvi. question of the student The .xviii. Chapitre STudent A vylleyne is graunted to a maÌ„ for terme of lyfe / the vylleyne purchaseth landes to hym and to his heyres / the tenaunt for terme of lyfe entre the / in this case by the lawe he shall enioye the landes to hym and to his heyres / whether shall he do so in lyke wyse in conscienec ¶ Doctour Me thynketh it fyrst good to se whether it maye stande with conscience that one man may clayme an other to be his vylleyne / and that he maye take fro hiÌ„ his landes and goodes and put his body in prysoÌ„ if he wyll / it semeth he loueth nat his neyghbour as hym selfe that dothe so to hym ¶ Sudent That lawe hathe bene so longe vsed in this realme and in other also / and hath ben admitted so long in the lawes of this realme and of diuerse other lawes also and hath bene affermed by bisshoppes / abbotes / priors / and many other men bothe spirituall and temporall which haue take aduauntage by the sayd lawe haue seased the landes and goodê of theyr vylleyns therby and cal it theyr ryght enheritaunce so to do that I thynke it nat good / nowe to make a doute ne to put it in argument whether it stand with conscieÌ„ce or nat / and therfore I pray the admittyng the lawe in that behalfe to stande in conscience shewe me thyne opinion in the question that I haue made ¶ Doctour Is the lawe clere that he that hath the vylleyne but only for the terme of lyfe shal haue the landes that the vylleyne purchaseth in fee to hym and to his heyres ¶ Student I verely I take it so ¶ Doctour I wolde haue take the lawe otherwise / for if a seygnoury be graunted to a man for terme of lyfe and the tenaunt attourne / and after the lande eschete and the tenauÌ„t for terme of lyfe entreth he shal haue there none other estate iÌ„ the lande than he had in the seygnourye / and me thynketh that it shuld be lyke law in this case / and that the lorde ought to haue in the lande but suche estate as he hathe in the vyllayne ¶ Stud. The cases be nat lyke / for in that case of the eschete the tenaunt for terme of lyfe of the seygnourye hathe the landes in the lieu of the seignourie / that is to saye / in the place of the seignourie / the seignourie is clerely extincte / but in this case he hathe nat the lande iÌ„ the lieu of the vylleyne / for he shal haue the villeyne styl as he had byfore / but he hath the landes as a ê“fyte come by meanes of the vylleyne whiche he shall haue in lyke case as the vylleyne had them / that is to saye / of all goodes and catalles he shal haue the hole propertie and of a lease for terme of yeres he shall haue the hole terme / and for terme of lyfe he shall haue the same estate / the lorde shall haue the lande durynge the lyfe of the vyleyne of lande in fee simple of an estate tayle that the vylleyne hath / the lorde shall haue the hole fee simple / all thoughe he had the vylleyne but onely for terme of yeres so that he entre or sease accordyng to the lawe byfore the vylleyne alien or elles he shall haue nothynge ¶ Doctoure Verely and if the lawe be so / I thynke conscience folowethe the lawe therin / for admyttynge that a man maye with conscience haue an other man to be his hylleyne / the iugement of the lawe in this case as to termine what estat the lord hath in the lande by his entre is neyther agaynst the lawe of reason nor agaynst the lawe of god / and therfore conscience muste folowe the lawe of the realme / but I pray the let me make a lytell dygression to here thyne opinion in a nother case somewhat perteynynge to the question / and it is this if an executour haue a vylleyne that is his testatoure had for terme of yeres he purchaseth landes in fee and the executour entreth in to the lande / what estate hathe he by his entre ¶ Student A fee simple / but that shal be to the behoue of the testatoure and shal be an assesse in his handes ¶ Doctoure Well than I am contented with thyne conceyte at this tyme in this case and I praye the procede to a nother question ¶ Ttudente For as moche as it appereth in this case and in some other byfore that the knowlege of the law of EnglaÌ„de is ryght necessarie for the good orderynge of conscience I wolde here thyne opinion if a man mistake the lawe what dauÌ„ger it is in conscience for the mistakynge of it ¶ Doctour I praye the put some case in certayn therof that thou doutest in / and I wyll with good wyll shewe the my mynde therin for elles it wyll be somwhat longe or it can be playnly declared / and I wolde nat be tedious in this wrytynge ⧠The .xvii. question of the student The .xix. Chapitre STudent A man hath a vylleyne for terme of lyfe the vylleyne purchaseth landes in fee as in the case in the laste Chapitre and the tenauÌ„t for terme of lyfe entreth and after the vylleyne dyeth / he in the reuercion pretendynge that the tenauÌ„t for terme of lyfe hath nothyng in the land but for terme of lyfe of the vylleine / asketh counsayle of one that sheweth him that he hath good ryght to the lande and that he may lawfully entre / and through that couÌ„sayle he in the reuercion entreth / by reason of the whiche entre great sutes and expences folowe in the lawe to the great hurte of bothe parties / what daunger is this to hym that gaue the counsayle ¶ Doctour Whether meanest thou that he that gaue the counsayle gaue it wyttyngly agaynste the lawe / or that he was ignoraunt of the lawe ¶ Student That he was ignorauÌ„t of the lawe for if he knewe the lawe gaue counsayle to the contrarie I thynke hym bounde to restitucion both to hym against whome he gaue the counsayle / and also to his client if he wolde nat haue sued but for his counsayle of all that they be dampnified by it ¶ Doctour Than wyl I yet ferther aske the this question / whether he of whome he asked counsayle gaue hym selfe to lernynge to haue knowlege of the law after his capacite or that he toke vpon hiÌ„ to gyue counsayle and toke no study competent to haue lernynge / for if he dyd so I thynke he be bounden in conscience to restitucion of all the costes and damages that he susteyned to whome he gaue counsayle if he wolde nat haue sued but throughe his counsaile And also
to the other partie / but if a man that hathe taken sufficient studye in the lawe / mystake the lawe in some poiÌ„t that is harde to come to the knowle of he is nat bounden to suche restitucion / for he hath done that in him is / but if suche a maÌ„ knowyng the lawe gyue couÌ„sayle agaynst the lawe he is bounde in conscience to restitucion of costes damages as thou hast sayd byfore / and also to make amendes for the vntrouthe ¶ Student What if he aske counsayle of one that he knowethe is nat lerned and he gyueth him counsayle iÌ„ this case to entre by force wherof he entreth ¶ Doctoure Than be they bothe bounde in conscience to restitucion / that is to say / the party if he be sufficient and els the couÌ„sayloure bycause he assented and gaue couÌ„sayle to the wronge ¶ StudeÌ„t But what is the counsaylloure in that case bounden to / to hym that he gaue counsayle to ¶ Doctoure To nothynge for there was as moche defaut in him that asked the couÌ„sayle as in hym that gaue it / for he asked couÌ„sayle of hym that he knewe was ignoraunt / and in the other was defaut for the presumpcion that he wolde take vpon him to gyue counsaile in that he was ignorauÌ„t in ¶ Stud. But what if he that gaue the counsayle knewe nat but that he that asked it had trust in hym that he coulde and wolde gyue hym good counsayle and that he asked couÌ„sayle for to order wel his conscience howe be it that the truth was that he coulde nat so do ¶ Doct. Than is he that gaue the counsayle bouÌ„den to offer to the other amendes / but yet the other may nat take it in conscience ¶ Student That were somwhat perilous for haply he wold take it thoughe he haue no ryght to it / excepte the worlde be well amended ¶ Doc. What thynkest thou in that amendement ¶ Sudent I trust euery maÌ„ wyl do nowe in this worlde as they wolde be done to / speake as they thynke / restore where they haue done wroÌ„g / refuse money if they haue no ryght to it though it be offred them do that they ought for to do by coÌ„scieÌ„ce / though they can nat be coÌ„pelled to it by no lawe that none wyl gyue couÌ„saile but that they shal thynke to be accordynge to coÌ„science / and if they do to do that they can to refourme it / and nat to entremit them selfe with suche maters as they be ignoraunt in / but in suche cases to sende them that aske the counsayle to other that they shall thynke be more connynge than they are ¶ Doct. It were very well if it were as thou haste sayd / but the more petie is it is nat alwaye so / specially there is great defaute in gyuers of counsayle / for some for theyr owne lucre and profyte gyue couÌ„sayle to coÌ„forte other to sue that they knowe haue no ryght / but I truste there be but fewe of theÌ„ / some for drede / some for fauoure / some for malyce / and some vpon confederacies and to haue as moche done for them a nother tyme to hyde the trouthe And some take vpon them to gyue counsayle in that they be ignoraunt in / and yet whaÌ„ they knowe the trouthe wyll nat withdrawe that they haue misdone / for they thynke it shulde be greately to theyr rebuke / and suche ê‘sones folowe nat this couÌ„sayle that sayth That we haue vnaduisedly done lette vs with good aduyse reuoke agayne ¶ Student And if a maÌ„ gyue couÌ„sayle in this realme after as his lerninge and coÌ„science gyueth hym / and regardethe nat the lawes of the realme / gyueth he good counsayle ¶ Doc. If the lawe of the realme be nat iÌ„ that case agaynst the lawe of god nor agaynste the law of reasoÌ„ he gyueth nat good couÌ„sayle / for euery man is bouÌ„de to folowe the lawe of the contrey where he is / so it be nat agaynste the sayd lawes / so maye the case be that he may bynde hym selfe to restitucion ¶ Student At this tyme I wyll no ferther trouble the in this question ⧠The .xviii. question of the student The .xx. Chapitre ¶ STudent If a man of his mere mocion gyue landê to Henry herte and to his heyres by indenture vpon condicion that he shall yerely at a certayne daye pay to Iohanat Style out of the same lande a certayne rent / and if he do nat that than it shal be lawful to the sayd Iohan at style to entre c. if the rent iÌ„ this case be nat paied to Iohan at style / whether maye the sayd Iohan at style entre in to the landes by coÌ„science thoughe he maye nat entre by the lawe ¶ Doctour May he nat entre in this case by the lawe syth the wordê of the indenture be that he shall entre ¶ StudeÌ„t No verelye for there is an auncient maxime in the lawe that no man shall take aduauntage of a condicion but he that is ê‘tie or priuey to the condicion / and this maÌ„ is nat partie nor priuey / wherfore he shall haue none aduauntage of it ¶ Doctoure Thoughe he can haue none aduauntage of it as partie yet bycause it appereth euidentely that the intente of the gyuer was that if he were nat payed of the rente that he shulde haue the lande It semeth that in coÌ„science he ought to haue it thoughe he can nat haue it by the lawe ¶ Student In many cases the entente of the partie is voyde to all intentes if it be nat grounded accordynge to the lawe And therfore if a man make a lease to a nother for terme of life / and after of his mere mocion he confermeth his estate for terme of lyfe / to remayne after his dethe to a nother and to his heyres / in this case that remayndre is voyde in lawe and conscience / for by the lawe there can no remayndre depeÌ„de vpon no estate but that the same estate begiÌ„neth at the same time that the remaiÌ„dre dothe / and in this case the estate beganne byfore and the confirmacion enlarged nat his estate nor gaue hym no newe estate / but if a lease be made to a man for terme of a nother mannes lyfe and after the lessour onely of his mere mocion confermeth the lande to his lesse for terme of his owne lyfe the remayndre ouer in fee / this is a good remayndre in lawe and conscience / and so me thynketh the intent of the partie shall nat be regarded in this case ¶ Doctoure And in the fyrst case that thou hast put me thynketh though it passe nat by way of remayndre that yet it shall passe as by waye of graunt of the reuercion / for euery dede shal be takeÌ„ most stronge agaynst the grauÌ„tour and the takyng of the dede iÌ„ this case is an attournament in it selfe ¶ StudeÌ„t That can nat be / for he in the remayndre
is nat partie to the dede and therfore it can nat be taken by waye of graunte of the reuercion / for no graūte can be made but to hym that is partie to the dede excepte it be by way of remayndre / and therfore if a mā make a lease for terme of life / and after the lessour graunt to a staūger that the tenaūt for terme of lyfe shal haue the lande to him and to his heyres / that graunt is voyde if it be made onely of his mere mocion without recompence And in lyke wyse if a mā make a lease for terme of lyfe after graūt the reuerciō to one for terme of lyfe / the remayndre ouer in fee / and the renaūt atturneth to hym that hath the state for terme of lyfe onely / intēdyng that he onely shulde haue aduauntage of the graūte his entēt is voyde / and both shall take aduauntage therof / and the atturnament shal be taken good accordynge to the graunte / and so in this case though the feoffoure entended that if the rente were nat payed that the straūger shulde entre / yet bycause the lawe gyuethe hym no entre in that case that intent is voyde / and the same staunger shall neyther entre into the lande by lawe nor conscience ¶ Doctour What shal than be done with the lande as thou thynkest after the cōdicion broken ¶ Student I thynke that the feoffour in this case may lawfully reentre / for whan the feoffemēt was made vpon condicion that the feoffe shulde pay a rent to a straunger in tho wordes is concluded in the lawe that if the rent were nat payed to the straunger that the feoffoure shulde reentre for tho wordes vpon condicion / implie so moche in the lawe thoughe it be expressed And than whā the feoffour went ferther and sayd that if the rēt were nat payed that the straunger shulde entre / those wordes were voyde in the lawe / and so the effecte of the dede stode vpon the fyrst wordes wherby the feoffour maye reentre in lawe and conscience but if the fyrst wordes had nat ben cōdicionall I wolde haue holden it the greater doute ¶ Doctour I praye the put the case therof in certayne with suche wordes as be nat condicionall that I may the better perceyue what thou meanest therin ⧠The .xix. question of the studente The .xxi. Chapitre SSudent A man maketh a feoffement by dede indetted / and by the same dede it is agreed that the feffe shal pay to A.B. to his heyres a certayne rēt yerely at certayn dayes / that if he pay nat the rēt thā it is agreed that A.B. or his heyres shall entre into the lande / and after the feoffe payeth nat the rent / than the question is who ought in cōscience to haue this lande and rent ¶ Doctoure Or we argue what conscience wyll let vs knowe fyrste what the lawe wyll therin ¶ Student I thynke that by the lawe neyther the feoffoure ne yet the sayd A.B. shall neuer entre into the lande in this case for nat paymente of the rent for there is no reentre in this case gyuen to the feoffour for nat payment of the rent as there is in the case next byfore / and the entre that is gyuen to the sayd A. B. for nat paymēt therof is voyde in the lawe bycause he is estraūge to the dede as it appereth also in the next Chapitre byfore And therfore me thynketh that the greatest doute in this case is to se to what vse this feoffement shal be taken ¶ Doctour There appereth in this case as thou haste put it no consideracion ne recompence gyuen to the feoffour whervpon any vse may be deriuied / if the case be so in dede that the feoffour declared neuer his mynde therin / to what vse shall it thā be takē ¶ Stu. I thynke it shal be taken to be to the vse of the feoffe as longe as he payeth the rente / for there is no reason why the feoffe shulde be busied with paymēt of the rent hauyng nothynge for his labour / ne it may nat cōueniently be taken that the intent of the feoffour was so / excepte he expressed it / thā it must be taken that he intended to recōpense the feffe for the busynes that he shuld haue in the payment ouer / and by the wordes folowyng his intent appereth to be so as me thynketh / for if the rēt were nat payed he wolde that A.B. shulde entre / and so it semeth he entended nat to haue any vse hym selfe and thus as me semeth this case shulde varye fro the comō case of vses / that is to saye / if a man seased of lande make a feoffement therof and it apperethe nat to what vse the feoffement was made ne it is nat vpon any bargayne or other recompence than it shal be taken to be to the vse of the feoffoure / excepte the contrarie can be proued by some bargaine or other lyke / or that his intēt at the tyme of the lyuerey of season was expressed that it shulde be to the vse of the feoffe or of some other / than it shall go accordynge to his entent / but in this case me thynketh it shal be taken that his entent was that it shulde fyrst be to the vse of the feoffe for the cause byfore reherced excepte the contrarie can be proued / so the knowlege of the intēt of the feoffour is the greatest certaynte for knowelege of the vse in this case as me semeth / but whā the feoffour goeth ferther and sayeth that if the rent be nat payed thā the sayd A.B. shulde entre into the lande / thā it appereth that his entent was that the rente shulde cease / and that A. B. shulde entre into the lande / and thoughe he maye nat by those wordes entre into the lande after the rules of the lawe / and to haue freholde / yet those wordes seme to be sufficient to proue that the intēt of the feoffour was that he shulde haue the vse of the lande / for sythe he had the rente to his owne vse and nat to the vse of the feoffoure so it semeth he shal haue the vse of the lande that is assigned to hym for nat paymente of the rente ¶ Doctour But I am somwhat in doute whether he had the rente to his owne vse / for the intēt of the feoffour myght be that he shuld pay the rēt for hī to some other or some other vse myght be appoynted therof by the feoffour ¶ Student If suche an entēt can be proued than that intent must be obserued / but we be ī the case to wete to what vse it shal be taken if the entēt of the feoffour can nat be proued / thā me thynketh it can nat be otherwyse takē but that it shal be to the vse of hī to whome it shulde be payed / for though it be called a rent yet
it is no rent in the lawe / ne in the lawe he shall neuer haue remedy for it / thoughe it were assigned to hym to his heyres with out condicion / neyther by distresse / by Assyse / by writte of Annuite / nor otherwyse / but he shal be dryuen to sue in the chauncery for his remedy / and than whaÌ„ he sueth in the chauncery he must surmitte that he ought to haue it by conscience / and that he can haue no remedy for it in the lawe And than sythe he hathe no remedy to come to it but by way of coÌ„science it semeth it shal be taken that whan he hath recouered it that he ought to haue it in conscieÌ„ce and that to his owne vse without the contrarie cane be proued / and if the contrarie can be proued and that the entent of the feoffoure was that he shulde dispose it for hym as he shulde appoynt than hathe he the reÌ„t in vse to a nother vse / and so one vse shulde be depeÌ„dynge vpon a nother vse whiche is seldome sene and shall nat be intended tyll it be ê“ued / and so sythe no such matter is here expressed me thynkethe the rent shal be taken to be to the vse of hiÌ„ that it is payed to / that the lande in lykewyse that it is appoynted to hiÌ„ for nat paymeÌ„t of the sayd rent shal be also to his vse / howe thynkest thou / wyll conscience therin ¶ Doctour I thynke that as thou takest the lawe nowe that coÌ„science in this case the lawe be all one / for the lawe sercheth the same thynge in this case to knowe the vse that conscience doth / that is to say / the intent of the feoffour / and therfore I wold moue the ferther in one thynge ¶ Student What is that ¶ Doctoure That syth the intent of the feoffour / shal be so moch regarded iÌ„ this case why it ought nat also to be as moche regarded iÌ„ the case that is iÌ„ the last Chapitre next byfore this where the wordes be coÌ„dicionall / and gyue the feoffour a tytle of reentre / for me thynketh that though the feoffour may in that case reentre for the condicion broken that yet after his reentre he shal be seased of the lande after his entre to the vse of hym to whome the lande was assigned by the said indenture for lacke of payment of the rent bycause the intent of the feoffour shal be taken to be so in that case as well as in this And I praye the let me knowe thy mynde what diuersite thou puttest bytwene them ¶ Student Thou dryuest me nowe to a narowe diuersite / but yet I wyll answere thy therin as well as I can ¶ Doctour But fyrst or thou shewe me that diuersite I praye the shewe me howe vses began / why so moche lande hath ben put in vse in this realme as hath ben ¶ Stud. I wyll with good wyl say as me thinketh therin ⧠Howe vses of lande fyrst bygan / and by what lawe / and the cause why so moche land is put in vse The .xxii. Chapitre STudent Vses were reserued by a secondary conclusion of the lawe of reason in this maner / whan the generall custome of propertie wherby euery man knewe his owne good fro his neyghbours was brought in amonge the people It folowed of reason that suche landes and goodes as a man had ought nat to be taken fro hym but by his assent or by order of a lawe / and than syth it is so that euery man that hathe landes hathe therby two thynges in hym / that is to say / the possession of the laÌ„de whiche after the lawe of Englande is called the franketenement or the free holde / and the other is aucthoritie to take therby the profites of the lande / wherfore it foloweth that he that hathe lande intendeth to gyue onely the possession and free holde therof to a nother / and to kepe the profites to hym selfe ought in reason and conscience to haue the profites / seyng there is no lawe made to ê“hibite / but that in coÌ„science suche reseruacioÌ„ may be made And so whan a man maketh a feoffemente to a nother and inteÌ„deth that he hym selfe shal take the profites thaÌ„ that feffe is sayd seased to his vse that so enfeffed hym / that is to saye / to the vse that he shall haue the possession freeholde therof as in the lawe to that intent that the feoffoure shall take the profites / and vnder this maner as I suppose vses of lande fyrste began ¶ Doctour It semeth that the reseruyng of such vse is prohibite by the lawe / for if a man make a feoffemeÌ„te and reserue the profites or any parte of the profites as the gresse wode or such other / that reseruacioÌ„ is voyd in the lawe / and me thynkethe it is all one to say that the lawe iugeth suche a thynge if it be done to be voyde / and that the lawe prohibiteth that that thynge shall nat be done ¶ Student Trouthe it is that suche reseruacion is voyde in the lawe as thou sayest and that is by reason of a maxime iÌ„ the lawe that wylleth that suche reseruacion of parte of the same thyng shal be iuged voyde in the lawe / but yet the lawe dothe nat ê“hibite that no suche reseruacion shal be made / but if it be made it iugeth of what effecte it shal be that is to say that it shal be voyde / and so he that maketh such reseruacion offendeth no lawe therby / ne brekethe no lawe therby and therfore the reseruacion in conscience is good / but if it were prohibite by statute that no man shulde make suche reseruacion / ne that no feoffement of truste shulde be made / but that all feoffemeÌ„tes shulde be to the vse of hym to whome possession of the lande is gyuen / than the reseruacion of suche vse agaynst the statut shulde be voyde bycause it were agaynste the lawe / and yet suche a statute shulde nat be a statute agaynste reason bycause suche vses were fyrste grounded and reserued by the lawe of reasoÌ„ / but it shulde preuent the lawe of reason and shulde put away the coÌ„sideracion where vpon the lawe of reason was grounded byfore the statute made And than to thy other question / that is to saye / why so moche lande hathe ben put in vse / it wyll be somwhat longe and peradueÌ„ture to some tedious to shewe al the causes perticulerly / but the very cause whythe vse remayned to the feffe natwithstaÌ„dyng his owne feoffement or fyne and somtyme natwithstandynge a recouery agaynste hiÌ„ is al vpon one coÌ„sideracion after the cause and intent of the gyfte / fyne / or recouery / as is aforesayd ¶ Doctoure Thoughe reason may serue that vpoÌ„ a feoffement a vse may be reserued to the feoffour by the intent of the feoffour agaynste the fourme of his gyfte as thou hast sayde byfore
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
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
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
made in that case nat by the generall rules of the lawe / soÌ„tyme in diuers statutes penalles they that be ignoraunt be excused by the selfe statute as it is vpon the statute of Rycharde the .ii. the .xiii. yere / the secoÌ„de statute the last chapitre where it is enacted that if any persone take a benefice by prouision that he shal be banysshed the realme forfet all his goodes / that if he be in the realme he auoid within .vi. wekes after he hath accepted it that none shall receyue hiÌ„ that is so banysshed after the sayd .vi. wekes vpon lyke forfeture / if he haue knowlege / so he that hath no knowlege is excused by the expresse wordes of the statute And in lykewyse he that offendeth agaynste Magna carta is nat excoÌ„menged but he haue knowlege that it is prohibit that he dothe For they be onely excoÌ„menged by the senteÌ„ce called SeÌ„tentia lata suê‘ cartas that dothe it wilfully or that dothe it by ignorauÌ„ce / correcte nat the selfe within .xv. days after they haue warninge And somtyme the that be ignoraunte of a statute be excused fro the penaltie of statute bycause it shal be takeÌ„ that the inteÌ„te of the makers of the statute was that none shal be bounde but they that haue knowlege / but that any man shulde be discharged in the lawe by ignoraunce of the lawe onely for that he is ignorante I knowe fewe causes excepte it might be applied to infantes that be in theyr infancy within yeres of discrecion / for if ignorauÌ„ce of the lawe shulde excuse in the lawe many offenders wolde pretende ignoraunce ¶ Doctour Shall an infaunte that hath discrecion knoweth good fro euyll be punisshed by a penall statute that he is ignoraÌ„t in ¶ StudeÌ„t If the statute be that for the offence he shulde haue corporall payne I thynke he shal be excused haue no corporall payne / but I suppose that that is nat for the ignoraunce / for thoughe he knewe the statute wittigly offeÌ„ded / yet I thike he shall haue no corporall payne as where he pleeded I ointenauncie by dede that is fouÌ„de agaist hym / or if he piede a recorde iÌ„ assise fayleth of it at his day / but that is bycause the lawe presumeth that it was nat the intente of the makers of the statute that he shulde haue that punishement / but if he be of yeres of discrecion to knowe good fro euyll whether he shall than forfet the penaltie of a penall statute it is more doute / for it is comoÌ„ly holden that if an infauÌ„t had nat ben excepted in the statute of foriugemeÌ„t that the foriugemeÌ„t shulde haue bouÌ„de hiÌ„ / so shall his cesser hê leuieÌ„ge of a crosse agaiÌ„st the stat / or if he be a gardeiÌ„ of a prysone suffre a prysoner escape he shall pay the derte bycause the statutes be generall if he shulde by tho statutes be bouÌ„de within age lyke reason wyll that he may by a statute penall liese his goodes ¶ Doctour If an infaunt do a murder or a felonye at suche yeres as he hath discrecion to knowe the lawe / shall he nat haue the punisshement of the lawe as one of full age ¶ StudeÌ„t I thynke yes / but that is by an olde maxime of the lawe for eschewynge of murders felonyes / so it is of a trespas / but these cases renne nat vpon the grouÌ„de of ignoraunce / but with what acre infantes shal be punisshable or nat punisshable / for the tendernes of theyr age though they be nat ignoraunce ¶ Doctoure Be nat yet knyghtes noble men that are bounde moste properly to set theyr studye to actes of chyualrye for defeÌ„ce of the realme And husbande men that muste vse tyllage husbandry for the susteynaunce of the cominaltie / that maye nat by reason of theyr laboure put theÌ„ selfe to knowe the lawe discharged by ignorance of the lawe ¶ StudeÌ„t No verely / for sith all were makers of the statute the law presumeth that all haue knowlege of that that they make / as it is sayd before / as they be bouÌ„de at theyr peryll to take knowlege of the statute that they make so be all that come after theÌ„ And as for knyghtes other nobles of the realme me semeth that they shulde be bounde to take knowlege of the lawe as well as any other within the realme except them that gyue theÌ„ selfe to the study exercyse o the law except spirituall iuges that in many cases be bouÌ„de to take knowlege of the law of the realme as is sayd before in the .xxv. chapitre For though they be bouÌ„de to actes of chyualry for defeÌ„ce of the realme / yet they be bouÌ„den also to the actes of iustice / that as it semeth more thaÌ„ other be by reasoÌ„ of theyr great possessions auctoritie And for the well orderynge of they tenantes / seruaÌ„tes neyghbours that many tymes haue nede of theyr helpe / also bycause they be ofte called to be of kynges couÌ„sayle to the generall counsayles of the realme / where theyr couÌ„sayle is right expedieÌ„t neccessarie for the comon welthe / therfore if the noble men of this realme wolde se theyr chyldren brought vp in suche maner that they shulde haue lerniÌ„ge knowlege more than they haue comonly vsed to haue in tyme past / specially of the groundes principles of the lawe of the realme wherin they be enheryte / though they had nat the hygh coÌ„nynge of the hole body of the lawe / but after suche maner as mayster Fortescue iÌ„ in his boke that he intitelleth the boke de laudibus legum Anglie auertisith the priÌ„ce to haue knowelege of the lawes of hys realme / I suppose it wolde be a great helpe hereafter to the ministracion of Iustice in this relame A greate surely for theÌ„ selfe a righte greate gladnes to all the people for certayn it is the more parte of the people wolde more gladly here that theyr rulers gouernours entended to order them with wisdome Iustice than with power greate retynues But ignoraunce of the dede many tymes excuseth in the lawes of Englande And I shall shortely touche some cases thereof to shewe where it shall excuse and wbere it shall nat excuse / thaÌ„ the reder maye adde to it after his pleasure and as he shall thynke to be conueniente ☞ Certayne cases groundes where ignoraunce of the dede excuseth in the lawes of Englande where nat The .xlvii. Chapitre STudent If a man bye a horse in open market of hym that in righte hath no propertye in hym nat knowynge but that he hath righte / he hath good title and righte to the horse / and that ignoraunce shall excuse hym But if he had bought hym oute of open market / or if he had knowen that the seller had no righte / the byeng in opeÌ„
market had nat excused hym Also if a man reteyne a nother mannes seruaunt nat knowynge that he is reteyned with hym / that ignoraunce excuseth hym bothe for the offence that was at the comoÌ„ lawe agaynst the maxime that prohibited suche reteynynge of a nother mannes seruauÌ„t And also agaynst the statute of .xxiii. of Edwarde the .iii. whereby it is ê“hibite vpon payne of inprysonemente that none shall reteyne no seruaunte that departeth within his terme without licence or reasonable cause / for it hath ben alwaye taken that the intente of the makers of the sayde statute was that they that were ignorauÌ„t of the fyrste reteynoure shulde nat renne in any penaltye of the statute And the same lawe is of hym that reteyneth one that is warde to another / nat knowynge that he is his warde And if homage be due the tenaunt after that the homage is due maketh a feoffement / after the lorde nat knowynge of the feoffement distreyneth for the homage in that case that ignoraunce shall excuse hym of dammages in a Repleuin / thoughe he can nat auowe for the homage but if he had knowen of the feoffemente he shulde haue yelded damages for the wroÌ„gfull takynge Also if a man be bouÌ„de in an obligacioÌ„ that he shall repayre the houses of hym that he is bounde to by suche a certayne tyme as ofre as nede shall require / after the houses haue nede to be repayred but he that is bounde knoweth it nat / that ignorauÌ„ce shall nat excuse him for he hath bounde hym selfe to it / so he muste take knowlege at his peryll / but if the condicioÌ„ had ben that shulde repayre suche houses as he to whome he was bounde shulde assigne / after he assigneth certayne houses to be repayred / but he that is bounde hath no knowlege of that assignement / that ignoraunce shall excuse hym in the lawe / for he hath nat bounde hym selfe to no reparacioÌ„s in certayne / but to suche as the party will assigne / and if he none assigne he is bouÌ„de to none / therfore syth he that shuld make the assignement is priuye to the dede he is bounde to gyue notice of his owne assignement / but if the assignement had ben appoynted to a strauÌ„ger thaÌ„ the oblegour muste haue taken knowlege of the assignement at his peryll Also if a man bye laÌ„des whereunto a nother hath title whiche the byer knoweth nat / that ignoraunce excuseth hym nat in the lawe no more than it dothe of goodes Also if a seruaÌ„t come with his maysters horse to a towne that by custome may attache goodes for det / vpon a playnte agaynst the seruauÌ„te an officer of the towne by informacion of the party attacheth the maysters horse thynkynge that it were the seruantes horse / that ignoraunce excuseth hym nat / for whan a man wyll do an acte as to entre in to lande / sea se goodes / take a distresse or suche other / he muste by the law at his peryll se that that he doth be lawfully done as in the case before reherced And in lykewyse if a shyryfe by a repleuyn deliuer other beastes than were distreyned / thoughe the partye that distreyned shewed hym they were the same beastes / yet an accion of trespas lyeth agaynst hym / ignoraunce shall nat excuse hym for he shal be compelled by the law as all officers comonly be to execute the kynges writte at his peryll accordynge to the tenour of it to se that the acte that he dothe be lawfully done But otherwyse it is after some men if vpon a somons in a Precipe quod reddat the shyryfe by informacion of the demaundaunt somoneth the tenauÌ„t in a nother maÌ„nes lande thynkynge it for the tenauntes lande there they say he shal be excused / for in that case he dothe nat sea se the lande ne take possession in the lande / but onely dothe somon the tenaunt vpoÌ„ the lande / the writte coÌ„maundeth hym nat that he shall somon the tenaunt vpon hys owne lande but generally that he shall somon hym nameth nat in what lande than by an olde maxime in the lawe it is taken that he shall somon hym vpon the laÌ„de in demaunde / therfore though he mistake the lande ignoraunt of it / yet if the demaundaunt enforme hym that that is the lande that he demaundeth that suffyseth to the shyryfe as to his entre for the so monynge as they saye though it be nat the tenauÌ„tes lande And here I make an ende of these questions for this tyme. ¶ Doctour I praye the yet or we departe take a litell more payne at my desire ¶ StudeÌ„t what is that ¶ Doctour That thou woldest shewe me thy mynde in diuers cases of the law of the realme / whiche as me semeth stande nat so clerely with conscience as they shulde do And therfore I wolde gladly here thy conceyte therein how they may stande with conscience ¶ Student Put the cases I shall with good will say as I thynke to them ¶ Addition ☞ The fyrste question of the Doctour Howe the lawe of Englande maye be sayd reasonable that prohibiteth them that be arreyned vpon an Inditemente of felony or murdre to haue couÌ„cell The .xlviii. Chapitre STudent Me thynketh that the lawe in that poynte is very good indifferent takynge the lawe therein as it is ¶ Doctoure why what is the lawe in this poynt ¶ Student The lawe is as thou sayst that he shall haue no couÌ„cell / but thaÌ„ the law is ferther / that in all thynges that perteyne to the ordre of pledynge the Iuges shall so instructe hym so ordre hym that he shall renne into mo ieopardye by his mispleadyng / as if he wyll pleade that he neuer knewe the man that was slayne / or that he neuer had a peny worthe of the goodes / that is supposed that he shulde steele in these cases the Iuges are bouÌ„de in conscience to enforme hym that he muste take the general yssue plede that he is nat gyltye / for thouh they be set to be 〈◊〉 bytwene the kynge the partye as to the partye as to the principall matter as they be in all other matters yet they be 〈◊〉 this case to se that the partye haue no hurt in fourme of pleadynge in suche induces as he shall shewe to be the truthe of the matter / that is a greate fauoure of the lawe / for iÌ„ appell though the Iustices of fauour wyll moste comonly helpe fourth the partye soÌ„tyme his counsell also in the forme of pleadynge as they do also many tymes in common plees / yet they might in tho cases if they wolde byd the party his counsayle plede at theyr peryll But they maye nat do so with conscience vpon enoâ—â—ementes as me semeth / for it were a greate vnreasonablenes in the lawe if it shulde prohibit hym that standeth in ieopardy of his lyfe that he shulde
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
sāde that the owner if he proue the goodes within a yere a daye to be his shall haue thē whereby the sayde lawe of wreckes of the see is made more sufferable thā it was before / some thynketh in this case that this warrantie is no barre in cōscience though it be a barre in the law ¶ Studēt I pray the kepe that case of wrecke of the see ī thy remembraunce put it hereafter as one of thy questions thereupon shewe me thy ferther mynde therein / I shall with good wyll shewe the mynde / and as to this case that we be in nowe me thynketh the maxime wherby the warrātye shal be a barre is good resonable / for it semeth nat agaīst reason that a man shal be bounde as to tēporall thynges by the acte of his aūcestre to whome he is heyre / for lyke as by the lawe it is ordeyned that he shall haue aduauntage by the same auncestre haue al his landes by dissent if he haue any righte so it semeth that it is nat vnreasonable though the lawe for the priuity of blode that is bytwene them suffre hym to haue a disaduauntage by the same auncestre / but if the maxime were that if any of his auncestres though he were nat heyre to hī made suche a warrantye that it shulde be a barre I thynke that maxime were agaynst conscience / for in that case there were no groūde nor cōsideraciō to proue howe the sayd maxime shulde haue a lawfull begynnyng wherefore it were to be taken as a maxim agaynst the lawe of reason / but me thynketh it is otherwyse ī this case for the reason that I haue made before ¶ Doctour If the father bynde hym his heyres to the paymente of a dette dye / in that case the sone shall nat be bounde to pay the det oneles he haue asses by discent fro his father And so I wolde agree that if this mā had asses by discent fro the aūcestre that made the warranty that he shulde haue be barred / but elles me thynketh it shulde stande hardly with conscience that it shulde be a barre ¶ Student In that case of the obligaciō the law is as thou sayst / the cause is for that the maxime of the law in that case is none other but that he shal be charged if he haue asses by discente / but if the maxyme had ben generall that the heyre shulde be bounden in that case without any asses / or if it were ordeyned by statute that it shulde be so / I thynke that bothe the maxime the statute shulde well stande with consciēce And lyke law is where a mā is vouched as heyre / he may entre as he that hath nothynge by discent / but where he claymeth the lande in his owne right there the warrantie of his auncestre shal be a barre to hī though he haue no assesse fro the same aūcestre / though it be sayd in Ezechiel the .xviii. chapitre That the sone shal nat bere the wyckednes of the father / that is vnderstande spiritually But as to tēporall goodes the opinion of doctours is / that the sone somtyme maye bere the offence of his father ¶ Doctour Nowe that I haue herde thy mynde in this case I wyll take aduisement therein tyll a better leasure And wil nowe procede to another question ¶ Studēt I praye the do as thou sayste I shall with good wyll make answere thereto as well as I can ☞ The thyrde question of the Doctoure if a man procure a collaterall warrātye to extincte a right that he knoweth a nother man hath to lāde / whether it be a barre in conscience as it is ī the lawe or nat ⸫ The .l. Chapitre DOctoure A man is disseased of certayne lāde the disseasoure selleth the lāde c̄ the aliene knowynge of the disseason optayneth a release with a warātye of an auncrestre colaterall to the disseasie that knoweth also the right of the disseasye The auncestre colaterall dyeth after whose deth the warrātye discendeth vpon the disseasye / whether maye the aliene in that case holde the lande in conscience as he may by the lawe ¶ Studēt Syth the warantye is discended vpon hym wherby he is barred in the lawe / me thynketh that he shall also be barred in conscience / and that this case is lyke to the case in the next chapitre before / wherein I haue sayd that as me thynketh it is a barre in conscience ¶ Doctour Though it might be takē for a barre in conscience in that case / yet me thynketh in this case it can nat / for in that case the longer brother entred as heyr knowynge none other but that he was heyre of right / after whan he solde the lāde the byer knewe nat but that he that solde it had good right to sell it / so he was ignoraunt of the title of the eldest brother and that ignoraunce came by the defaut absence of hym selfe that was the elder brother But in this case as well the byer as he that made the colaterall warrātie knew the righte of the disseasye dyd that they coulde to extincte that right / so they dyd as they wolde nat shulde haue be done to them / so it semeth that he that hath the lāde may nat with cōsciēce kepe it ¶ Student Though it be as thou sayste that all they offended in opteynyng of the sayd colaterall warrantie / yet suche offence is nat to be cōsidered in the lawe but it be in very speciall cases / for if suche alegiaūce shulde be accepted in the law / relesses other writtinges shuld be of smal effecte / vpō euery light surmise all writtinges might come ī triall whether they were made with cōsciēce or nat Therfore to auoyde that incōueniēce the law will driue the partye to āswere onely whether it be his dede or nat / nat whether the dede were made with consciēce or agaynst conscience / though the partye may be at a mischyefe thereby / yet the lawe wyll rather suffre that mischiefe thā the sayd inconuenience And lyke law is if a woman couert for drede of her husbande by cōpulcion of hym leuye a fyne / yet the woman after her husbādes dethe shall nat be admitted to shewe that matter in auoydynge of the fyne for the incōueniēce that might folowe therupon And after the opinion of many men there is no remedye in these cases in the chauncery for they saye that were the comon lawe in cases concernyng enheritaunce putteth the party fro any auerment for eschewynge of an inconuenience that might folowe of it amonge the people / that if the same inconuenience shulde folowe in the chauncery if the same matter might be pleaded there that no sub pena shulde lye in suche cases / so it is in the cases before reherced For as moch vexacion / delay / costes / expences
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
shal be alowed for his reasonable expences in that behalfe as he shal be of goodes fouÌ„de / but he shall haue no property in theÌ„ no more thaÌ„ in goodes fouÌ„d And I wolde agre that if a maÌ„ prescribe that if he fynde any goodes withiÌ„ his maner that he shulde haue theÌ„ as his owne that that prescripcion were voyd / for there is no coÌ„sideracioÌ„ how that pÌ„scriptioÌ„ might haue a lawfull beginninge / but in this case me thiÌ„keth there is ¶ Doctor. what is that ¶ StudeÌ„t It is this The kyng by the olde custome of the realme as lord of the narow see is bouÌ„de as it is sayd to scour the see of pyrates petyt robbers of the see And so it is redde of the noble kyng saiÌ„t Edgare that he wolde twise in the yere scour the see of suche pyrattes / but I mean nat therby that the kiÌ„g is bouÌ„d to coÌ„duct his marchaÌ„tes vpoÌ„ the see agaiÌ„st al outward enemies but that he is bouÌ„d onely to put away such pyratê petite robers And bycause that can nat be done without greate charge it is nat vnreasonable if he haue suche goodes as be wrecked vpoÌ„ the see towarde that charge ¶ Doctour Vpon that reason I wyll take a respite tyll a nother tyme. ☞ The .v. question of the Doctoure whether it stande with conscience to prohibit a Iury of meate drinke tyll they be agreed The .lii. Chapitre DOctour If one of the .xii. men of an enquest know the very trouth of his owne knowlege instructeth his felowes thereof they wyll in no wyse giue credence to hym / and thereupon bycause meate and drynke is prohibit them he is dryuen to that poynte that eyther he must assente to them and gyue the verdyte agaynst his owne knowlege agaynste his owne conscience / or dye for lacke of meat / howe may that law than staÌ„de with conscieÌ„ce that will dryue an innoceÌ„t to that extremitie to be eyther forsworn or to be famisshed dye for lacke of meat ¶ StudeÌ„t I take nat the law of the realm to be that iury after they be sworne may nat eate nor driÌ„ke tyll they be agreed of the verdicte but trouth it is there is a maxime an olde custome in the lawe that they shall nat ease nor drynke after they be sworne tyll they haue gyuen theyr verdit without the assente â—â—tece of the iustice / that is ordeyned by the lawe for the eschewynge of diuers inconuenieÌ„ces that might folow thervpoÌ„ / that specially if they shulde eate or driÌ„ke at the costes of the partyes / therfore if they do the coÌ„trarye it may be sayde in areste of the iugement / but with the assente of the Iustices they may bothe ere driÌ„ke as it any of the Iurours fall sycke before they be agreed of theyr verdit to sore that he may nat comon of the verdit / thaÌ„ by the assent of the Iustices he may haue meate drynke also suche other thynges as be necessary for hym / and his felowes also at theyr owne costes or at the indifferent costes of the partyes if they so agre by the assent of the iustices may bothe eate driÌ„ke therfore if the case happeÌ„ that thou now spekest of that the Iuri can in no wyse agree in theyr verdit / that appereth to the Iustices by examinacioÌ„ the Iustices may in that case suffre them haue bothe meate drynke for a tyme to se wheter they wyll agre / if they wil in no wyse agre I thiÌ„ke that than Iustices may set suche order in the matter as shall seme to them by theyr discrecion to stande with reason conscience by awardynge of a newe enqueste by settinge sines vpon theÌ„ that they shal finde in defaute or otherwise as they shall thiÌ„ke best by theyr discrecion lyke as they maye do if one of the Iury dye before verdit or if any other lyke casualties fall in that behalfe But what the iustices ought to do in this case that thou haste put by theyr discrecioÌ„ I wyll nat tret of at this tyme. ☞ The .vi. question of the Doctour whether the colours that be gyueÌ„ at the comon lawe in assises / accions of trespas / diuers other accions stande with conscience bycause they be moste comonly feyned be nat trew The .liii. Chapitre DOctour I pray the let me here thy mynde to what intente suche colors be gyuen / syth they be comonly vntrue how they may stande mith conscience ¶ StudeÌ„t The cause why suche colours be gyuen is this / there is a maxime and a grounde in the lawe of Englande that if the defendant or tenant in any accioÌ„ plede a plee that amouÌ„teth to the generall issue that he shal be compelled to take the generall issue / if he will nat / he shal be condeÌ„pned for lacke of answere / the generall issue in assise is / that he that is named the disseasoure hath done no wronge nor no disseason And in a writte of entre in the nature of assise the general issue is that he disseased hym nat / in an accioÌ„ of trespas that he is nat gyltye so euery accioÌ„ hath his generall issue assigned by the lawe / the tenaunt muste of necessitie eyther take that generall issue / or plede some plee in abatement of the writt / to the iurisdiccioÌ„ / to the persone or elles some barre or some matter by way of conclusion And therfore if Iohan at style infeffe Henry herte of laÌ„de a straunger bryngeth an assise agaiÌ„st the sayd Henry herte for that lande whose title he knoweth nat In thê case if he shuld be coÌ„pelled to plede to the poynt of the assise / that is to say / that he hath done no wroÌ„ge ne no disseason the matter shulde be put in the mouthes of .xii. laye men whiche be nat lerned in the lawe / therefore better it is that the law be so ordered that it be put in the determinacion of the iuges than of lay men And if the sayd Henry hert in the case before reherced wolde plede in barre of the assise that Iohan at style was seased infessed hym / byforce whereof he entred asked iugement if that assise shulde lye agaynste hym that ple were nat good for it amouÌ„teth but to the general issue therefore he shal be compelled to take the generall issue or els the assise shal be awarded agaynst hiÌ„ for lacke of answere And therefore to the intente the matter may be shewed pleded before the iuges rather than before Iury / the tenantes vse to gyue the pleyntyfe a coloure / that is to say a colour of accion wherby it shall appere that it were hurtfull to the tenant to put that matter that he pleadeth to the iugemeÌ„t of .xii. meÌ„ / the moost eomon coloure that is vsed in suche case is this / whan he hath pleded that suche a maÌ„
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
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 ⸫