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
¶ 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
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
therin ¶ What is a nude contracte or naked promyse after the lawes of Englande / and whether any accion may lye thervpon The .xxiiii. Chapitre ¶ STudent Fyrste it is to be vnderstande that contractes be grounded vpon a custome of the realme and by the law that is called Ius gentium and nat dyrectely by the lawe of reason / for whan all thynges were in comon it neded nat to haue contractes / but after ê“perty was broughte in they were ryght expediente to all people / so that a man myght haue of his neyghboure that he had nat of his owne / and that coulde nat be lawfully but by his gyfte / by way of lendynge / concorde / or by some lease / bargaine / or sale / and suche bargaynes and sales be called contractes / and be made by assent of the parties vpon agrement bytwene them of goodes or landes for money or for for other recompence / but of money vsuell / for money vsuell is no contracte Also a concorde is properly vpoÌ„ an agremeÌ„t bytwene the parties with diuers artycles therin / some rysyng on the one ê‘t and some on the other / as if Iohan at style letteth a chambre to Henry herte and it is ferther agreed bytwene them that the said HeÌ„ry herte shall go to borde with the sayd Iohan at style / and the sayd Henry herte to paye for the chaÌ„bre and bordynge a certayne suÌ„me cÌ„ this is ê“perly called a concorde / but it is also a contracte and a good accion lyeth vpoÌ„ it / howe beit it is nat moche argued in the lawes of EnglaÌ„de what diuersitie is bytwene a coÌ„tracte / a coÌ„corde / a ê“myse / a gyfte / a loue / or a pledge / a bargayne / a couenaunt / or suche other / for the intente / of the lawe is to haue the effecte of the mater argued and nat the termes / and a nude contracte is where a man makethe a bargayne or a sale of his goodes or landes wtout any recoÌ„pence appoynted for it As if I saye to a nother I sell the all my lande or all my goodes and nothyng is assigned that the other shall gyue or pay for it / that is a nude contracte / and as I take it it is voyde in the lawe and conscience / and a nude or naked promyse is where a man promyseth an other to gyue hym certayne money suche a day or to buylde hym an house / or to do hym suche certayne seruyce / and nothynge is assigned for the money / for the buyldynge / nor for the seruyce / these be called naked promyses / bycause there is nothyng assigned why they shuld be made / and I thynke no accion lyethe in those cases thoughe they be nat perfourmed Also if I promyse to a nother to kepe hym suche certayne goodes sauely to such a tyme / and after I refuse to take theÌ„ ther lyeth no accion againste me for it / but if I take them and after they be lost or empeyred throughe my negligent kepynge / there an accion lyeth ¶ Doctour But what opinion holde they that be lerned in the law of EnglaÌ„de in suche promyses that be called naked or nude promyses / whether doo they holde that they that make the ê“myse be bouÌ„den in coÌ„science to perfourme theyr promyse thoughe they can nat be compelled therto by the lawe or nat ¶ Student The bokes of the lawe of EnglaÌ„de treate lytell therof / for it is lefe to the determinacion of doctoures / and therfore I pray the shewe me somewhat nowe of thy mynde therin / and than I shall shewe the therin somwhat of the myndes of diuerse that be lerned in the lawe of the realme ¶ Doctoure To declare that mater playnly after the saynge of doctoures it wolde aske a longe tyme and therfore I wyl touche it briefly to gyue the occasion to desyre to here more therin here after Fyrste thou shalte vnderstande that there is a promyse that is called an aduowe / that is a promyse made to god / and he that dothe make suche a vowe vpon a deliberate mynde entendynge to perfourme it is bounde in conscience to do it / thoughe it be onely made in the herte without pronouncynge of wordes / and of other promyses made to man vpon a certayne consideracion / if the promyse be nat agaynste the lawe As if A. promyse to gyue B. xx pounde / bycause he hathe made hym suche a house or hathe lente hym suche a thynge or suche other lyke / I thynke hym bouÌ„de to kepe his promyse But if his promyse be so naked that there is no maner of coÌ„sideracioÌ„ why it shulde be made / than I thynke hym nat bounde to perfourme it / for it is to suppose that there was some errour in the making of the promyse / but if suche a promyse be made to an vniuersitie / to a citie / to the churche / to the clergy / or to pore men of suche a place / and to the honoure of god or suche other cause lyke / as for mayntenaunce of lernynge / of the comon welthe / of the seruyce of god / or in relyefe of pouertie or suche other / than I thynke that he is bounden in conscience to perfourme it thoughe there be no coÌ„sideracion of worldly profite that the grauntour hath had or enteÌ„deth to haue for it / and in all suche promyses it must be vnderstande that he that made the promyse intended to be bounde by his ê“myse / for els comoÌ„ly after al doctoures he is nat bounde / oneles he were bounde to it byfore his promyse As if a man promyse to gyue his father a gowne that hathe nede of it to kepe hym fro colde / and yet thiÌ„keth nat to gyue it hym / neuertheles he is bouÌ„de to gyue it for he was bounde therto byfore Also after some doctours a man may be excused of suche a promyse in conscience by a casualite that cometh after the promyse if it be so that if he had knowen of that casualite at the makyng of the ê“myse he wolde nat haue made it And also suche promyses if they shall bynde they muste be honeste / lawful / and possible / and elles they are nat to be holden in conscience though there be a cause c. And if the promyse be good and with a cause thoughe no worldly profyte shall growe therby to hiÌ„ that maketh the promyse but onely a spirituall profyte as in the case byfore rehersed of a ê“myse made to an vniuersitie / to a citie / to the churche / or suche other and with a cause / as to the honoure of god other / there it is moste comonly holden that an accion vpon those promises lyeth in the lawe canon ¶ Stu. Whether dost thou meane in suche promyses made to a vniuersite / to a citie / or to suche other as thou haste reherced byfore / with a cause / as to the honoure of god or suche other That the
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
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
one is this Two ioynttenauntes be of goodes the one of them by his laste wyl bequeteth all his parte to a strauÌ„ger and maketh the other ioynttenaunt his executor and dyeth / if he to whome the bequest is made sue the other iointtenaunt / vpon the legacie as executour c. vpoÌ„ this matter shewed / the iuges of the spirituall lawe are bounden / to iuge the wyll to be voyde / by cause it is voyde by the lawe of the realme wherby the iointtenaunt hath right to the hole goodes by the title of the suruiuour is iuged to haue the goodes as by the fyrst gyfte whiche is before the tytle of the wyl must therfore haue pÌ„ferremeÌ„t as the elder title if the iuges of the spiritual courte iuge other wyse they are bouÌ„de to restitucioÌ„ by lyke reason the executours of a man that is outlawed the tyme of his dethe may dyscharge them selfe in the spirituall courte of the perfourmyng of legacyes / bycause they be chargeable to the kynge and yet there is no suche lawe of outlagary in the spirituall lawe ¶ Doctoure By occasyon of that thou haste sayde before I wolde aske of the this question If a parson of a churche alyen a porcyon of dysmes accordyng as the spirituall lawe hathe ordeyned / is nat that alienacion sufficient thoughe it haue nat the solempnities of the temporall lawe ¶ Student I am in doute therin yf the porcion be vnder the fourth parte of the value of the churche but yf it be to the value of the .iiii. parte of the churche or aboue / it is not sufficient and therfore was the wrytte of ryght of dysmes ordeyned / if iÌ„ a wrytte of ryght of dysmes it be Iuged in the kynges court for the patrone of the successoure of hiÌ„ that alieneth bycause the alyenacyon was nat made accordynge to the comon lawe / than the Iuges of the spirituall lawe are bounden to gyue theyr iugement accordyng to the iugemeÌ„t gyueÌ„ in the kyngs court And in lyke wyse if a parson of a churche agre to take a pencyoÌ„ for the tythe of a mylle / yf the pencyoÌ„ be to the fourthe parte of the value of the churche or aboue / than it muste be alyened after the solempnytyes of the kynges lawes as landes tenementes muste / or elles the patrone of the successoure of hym that alyened maye brynge a wryt of ryght of dysmes recouer in the kynges courte / than the Iuges of the spirituall courte are bounden to gyue IugemeÌ„t in the spiritual courte accordyngly as is aforesayd ¶ Doccour I haue herde say that a wryt of ryghte of dysmes is gyueÌ„ by the statute of westmynster the seconde that speketh onely of dysmes and not of pencion ¶ Student where a parson of a churche is wrongfully deforcyd of his dysmes and is lette by an Indicauit to aske his dysmes in the spirituall court than his patroÌ„ may haue a wrytte of ryght of dysmâ— by the statute that thou spekest of / for there lay none at the comon lawe for the person had there good ryght thoughe he were let by the iÌ„dicauit to sue for his right But whan the persoÌ„ had no remedy at the spirituall lawe there a wrytte of ryght of dismes lay for the patroÌ„ by the comoÌ„ lawe as well of pencyons as of dysmes / some saye that in suche case it lay of lesse than of the fourthe parte by the comoÌ„ lawe but that I passe ouer And the reason why it lay at the comoÌ„ lawe if the dysme or pencyoÌ„s were aboue the fourth parte c. was this by the spirituall lawe the alienacyoÌ„ of the persoÌ„ with assent of the bisshope and of the chapitre shall barre the successour without assente of the patrone / and so the patrone might lese his patronage he nat assentinge therto for hys encuÌ„bent myght haue no remedy but iÌ„ the spirituall court and there he was barred wherfore the patrone iÌ„ that case shall haue his remedy by the comon lawe where the assent of the ordinarie and chapitre without the patrone shall nat serue as is sayd before But where the encumbent had good ryght by the spirituall lawe there lay no remedy for the patrone by the comoÌ„ lawe though the encumbeÌ„t were let by an indicauit / for that cause was the sayde statute made and it lyeth as wel by the equitie for offeringê and pensions as for dismes Than farther I wolde thynke that where the spirituall court may holde ple of a temporall thiÌ„ge that they must iuge after the temporall lawe / that ygnoraunce shall not excuse them in that case for by takynge of theyr office they haue bouÌ„de them selfe to haue knowlege of as moch as beloÌ„geth to ther offyce as al Iuges be spiritual teÌ„poral But if it were in argument in this case whether the eldest soÌ„ne myght be a preste by cause he is a bastarde iÌ„ the teÌ„poral lawe that shuld be iuged after the spiritual lawe for the matter is spiritual ¶ Doct. yet notwithstandynge all the reasons that thou haste made I caÌ„ not se howe the iuges of the spirituall lawe shall be compelled to take notice of the temporall lawe seynge that the most parte of it is in the frenche tonge for it were harde that euery spirituall iuge shulde be compelled to lerne that toÌ„ge But if the lawe of the realme were set iÌ„ suche order that they that iÌ„tende to studye the lawe canoÌ„ might first haue a syght of the lawe of the realme as they haue now of the lawe ciuil that some bokê treatises were made of cases of coÌ„scieÌ„ce coÌ„cernynge those two lawes as there be nowe coÌ„cernynge the lawe ciuil and the lawe canoÌ„ I wolde asseÌ„t that it were ryght expedyeÌ„t thaÌ„ reasoÌ„ myght serue the better that they shulde be compelled to take notyce of the lawe of the realme as they be nowe bounden in suche countreys as the lawe ciuill is vsed to take notyce of that lawe ¶ Student Me thynketh thyne oppinion is ryght good and reasonable but tyll suche an order be taken they are bouÌ„de as I suppose to enquere of theym that be lerned iÌ„ the comon lawe what the lawe is / and so to gyue theyr iugement accordyng / if they wyll kepe them selfe fro offence of coÌ„scyence / and for as moche as thou haste well satisfied my mynde in all these questions before I praye the nowe that I maye soÌ„what fele thy mynde in dyuers artycles that be wryten in dyuers bokes for the orderynge of coÌ„scyence vpon the lawe canon and ciuill / for me thynketh that there be dyuers conclusyoÌ„s put in dyuers bokes / as iÌ„ the suÌ„mes callyd Summa angelica / and Summa rosella / and dyuers other for the good order of coÌ„scieÌ„ce that be agaynst the lawe of this realme rather blynde conscience thaÌ„ to gyue any lyght vnto it ¶ Docto. I pray the shewe me some of those cases
is sayde there that suche thynges come to hym by reason of his owne persone / whiche saiÌ„ges I thinke accorde with the lawe of the realme But for as moche as in the sayd article in diuers other places of the sayd chapitre / in diuers other chapitres of the sayd summe is put great diuersitie betwene suche goodes as a clerke hathe by reason of his churche and suche goodes as he hath by reason of his person and that he muste dispose suche goodes as he hath by reason of his churche in suche maner as is appoiÌ„ted by the lawe of the churche / so that he maye nat dispose them so liberally as he may the goodes that come by reasoÌ„ of his owne persone / therfore I shall a litle touche what spirituall meÌ„ may do with theyr goodes after the lawe of the realme Fyrst a Bisshop of suche goodes as he hath with the deane the chapitre he may nether make gyfte nor byquest / but of suche goodes as he hath of his owne by reason of his churche or of the gifte of his auncestres or of any other / or of his patrimony he maye bothe make giftes byquestes lawfullye And an Abbot of the goodes of his church may make a gyfte the gyft is good as to the lawe But what it is in conscieÌ„ce that is after the cause intente qualitie of the gyfte / for if it be so moche that it notablie hurteth the house or the couent / or if he gyue away the bokes or the chalyces / or suche other thynges as belonge to the seruice of god / he offendeth in conscience / yet he is nat punisshable in the lawe / ne yet by a sub pena after some meÌ„ ne in none other wyse but by the lawe of the churche as a waster of the goodes of his monastery But neuertheles I will nat fully holde that opinion as to that that belongeth necessaryly to the seruice of god / whether any remedye lye agaynst hym or nat / but remyt it to the iugement of other And a deane a chapitre a mayster bretherne of goodes that they haue to them selfe And also of goodes that they haue with the chapitre bretherne the same diuersite holdeth as appereth before of a Bisshope the deane chapitre / excepte that in the case of a mayster bretherne the goodes shal be ordered as shal be assigned by the fundacion And moreouer of a parson of a churche vicar / chaunterie preest / or suche other / all suche goodes as they haue / as well suche as they haue by reson of the personage / vicarage / or chauÌ„tery / as that they haue by reason of theyr owne persone they maye lawfully gyue bequethe where they will after the comoÌ„ lawe And if they dispose parte amonge theyr parysshens parte to the byldinge of churches / or gyue parte to the ordinarie / or to poore men / or in suche other maner as is apoynted by the law of the churche they offende nat therein / oneles they thynke them selfe bounden therto by duetie by authorite of the lawe of the churche / nat regardynge the kiÌ„ges lawes / for if they do so it semeth they resiste the ordenaunce of god / whiche hath gyuen power to princes to make lawes But there as the Pope hath soueraintie in temporal thynges as he hath in spirituall thynges / there some saye that the goodes of prestes muste in conscience be disposed as is conteyned in the sayd summe / but that holdeth nat iÌ„ thê realme / for the goodes of spuÌ„al meÌ„ be teÌ„poral iÌ„ what maner so euer the come to theÌ„ / muste be ordered after the temporal law as the goodes of the teÌ„porall meÌ„ muste be How be it if there were a statute made iÌ„ this case of lyke effecte in many poiÌ„tes / as the law of the churche is I thynke it were a right good a profitable statute ☞ Who shall succede a clerke that dyeth intestate ⧠The .xl. Chapitre STudent In the sayd summe called rosella in the chapitre Clericus quartus the .vii. article / is asked this question / who shall succede to a clerke that dyeth intestate And it is answered that in goodes gotteÌ„ by reason of the churche the churche shall succede But in other goodes his kinnesmen shall succede after the order of the law / if there be nat kinnesmen than the churche shall succede And it is there sayd forther that goodes gotten by a canon seculer by reason of his churche or prebende shall nat go to his successour in the prebende / but to the chapitre But where one that is beneficed is nat of the congregacioÌ„ / but he hath a benefice clerely seperate / as if he be a parsone of a parysshe churche or is a president or an archedeacon nat beneficed by the chapitre / than the goodes gotteÌ„ by reason of his benefice / shall go to his successoure nat to the chapitre / none of these sayenges holde place in the lawes of Englande ¶ Doctour what is thaÌ„ the law if a paÌ„rsone of a churche or a vycar in the countrey dye intestate / or if a chanon seculer be also a parson haue godes by reason therof also by a prebende that he hath in a cathedrall church he dye intestate / who shall haue his goodes ¶ Student At the comon law the ordinarie in all these cases may administre the goodes after he must commit administracion to the next faythe full frendes of hym that is ded intestate that wyll desyre it as he is bounde to do where lay men that haue goodes dye intestate And if no maÌ„ desyre to haue administracion than the ordinarie may administre sethe dettes payde he muste beware that he paye the dettes after suche order as is appoynted in the comon law / for if he pay dettes vpon simple coÌ„tractes before an obligacion he shal be coÌ„pelled to pay the dette vpon the obligacion of his owne goodes if there be nat goodes sufficieÌ„t of hym that dyed intestate / though it be suffered in suche case that the ordinarie maye pay pouÌ„de pounde like that is to apporcion the goodes amonge the dettours after his discrecion / yet by the rigoure of the comon lawe he might be charged to hym that caÌ„ fyrste haue his iugement agaynst hym And ferthermore by that is sayde afore in the laste chapitre appereth if a Bisshope that hath goodes of his patrimony / or a mayster of a colage / or a deane of goodes that they haue of theyr owne onely to them selfe dye intestate / that the ordinarie shall commit administracion therof as before appereth if they make executours than the executours shall haue the ministracion thereof But the heyres nor the kynnesmeÌ„ by that reason onely that they be heyres or of kynne to hym that is decessed shall haue no medlyng with his goodes except it be by
If a clerke be promoted to the title of his patrimonie after selleth his patrimonye after falleth to pouertye whether shall he haue his title therin or nat The .xliiii. Chapitre STudent In the sayd suÌ„me called Rosella in the title Clericus quartus / the xxiiii article it is asked if a clerke be promoted to the title of his patrimony whether he maye aliene it at his pleasure and whether in that alienacion the solempnite nedeth to be kepte that is to be kept in alienacioÌ„ of thynges of the churche / it is answered there that it may nat be aliened no more thaÌ„ the goodes of a spirituall benefice if it be accepted for a title expressely assigned vnto hym / so that it shulde go as in to a rhynge of the churche / except he haue after an other benefice wherof he may lyue But if it be secretely assigned to his title some agree it may be aliened / in this case by the lawes of the realme it may be lawfully aliened whether it be secretely or opeÌ„ly assigned to his title / for the ordinarie ne yet the party hym selfe after the olde customes of the realme haue no auctorite to biÌ„de any inheritaunce by aucthoritie of the spirituall lawe / therfore the lande after it is assigned accepted to be his title standeth in the same selfe case to be boughte / solde / charged / or put in execucioÌ„ as it dyd before And therfore it is somwhat to be maruayled that ordinaries will admitte suche lande for a title to the inteÌ„te that be that is promoted shulde nat fall to extreme pouerty or go openly a beggynge / without knowynge howe the comon lawe will serue therin / for of mere right all enheritauÌ„ce within this realme ought to be ordered by the kynges lawes / inheritaunce can nat be bounden in this realme but by fine or some other matter of recorde / or by feoffemeÌ„t / or suche other or at leste by a bargain that chaungeth an vse And ouer that to assigne a stare for terme of lyfe to him that hath a fee simple before is voyde in the lawes of Englande without it be by suche a matter that it worke by way of conclusioÌ„ or estapell / in this case is no suche mater of conclusion / therfore all that is done in suche case in assignynge of the sayd title is voyde Also there is no interest that a maÌ„ hath in any maner landes or tenementes for terme of lyfe / for terme of yerê / or otherwyse / but that he by the law of the realme may put away his right therein if he will And than whan this man alieneth his laÌ„de generally it were against the lawe of the realme that any interest of suche a title shuld remayne in hym agaynste his owne sale / there is no diuersite whether the assignement of the title were open or secrete / so that title is voyde to all intentes And in in lykewise if a house of religion or any other spirituall man that hath graunted a title after the custome vsed in suche titles sell all the landes goodes that they haue that sale in the lawes of EnglaÌ„de is good as agaynste that title / the byer shall neuer be put to answere to that title Also some saye that vpon the comoÌ„ titles that be made dayly in suche case that if he fall to pouertie that hath the title he is without remedy / for they be so made that at the comon lawe there is no remedye for them / if he take a sute in the spirituall court may men saye that a prohibicioÌ„ or a premunire lieth And therfore it were good for ordinaries iÌ„ suche case to counsayle with them that be lerned in the lawe of the realme to haue suche a forme deuised for makynge of suche titles / that if nede be wolde serue theÌ„ that they be made vnto / or elles lette theÌ„ be promoted without any title / to truste in god that if they serue hym as they ought to do he wyll prouide for them to haue sufficient for them to lyue vpon And beside these cases that I haue remembred before / there be many other cases put in the sayde summes for the well orderynge of conscience / that is as me thynketh are nat to be obserued in this realme neyther in lawe nor in conscience ¶ Doctour Doste thou than thynke that there was defaute in them that drewe the sayd suÌ„mes put there in suche cases suche solucions that as thou thynkest hurte conscience / rather than to gyue any light to it / specially as in this realme ¶ Sudent I thynke no defaute in them / but I thynke that they were righte well charitably occupied to take so greate payn labour as they dyd therin for the welthe of the people clerynge of theyr consciences / for they haue therby gyuen a righte greate light in conscience to all countreys where the lawe Ciuile the lawe Canon be vsed to temporall thynges But as for the lawes of this realme they knewe them nat ne they were nat bounde to know theÌ„ / if they had knowen them it wolde litell haue holpen for the countreys that they mooste specially made theyr treatices for / in this countrey also they be right necessary moche profitable to all men for suche doutes as ryse in conscience in diuers other maners nat concernyng the lawe of the realme And I meruayle greatlye that none of them that in this realme are most bounden to do that in them is to kepe the people in a right iugement in a clerenes of conscience haue done no more in tyme past to haue the lawe of the realme knoweÌ„ than they haue done / for though ignoraÌ„ce may somtyme excuse / yet the knowlege of the trouth the true iugemente is moche better / somtyme though ignorauÌ„ce excuseth in parte it excuseth nat iÌ„ all / therfore me thiÌ„keth they dyd very well if they wolde yet be callers on to haue that poynt reformed as shortly as they could And now bycause thou haste well satisfied my minde in many of these questions that I haue made I purpose for this tyme to make an ende ¶ Doctour I praye the yet shewe me or that thou make an ende mo of the cases that after thyne oppynion be set in diuers bokes for clerynge of conscience that as thou thynkest for lacke of knowynge of the lawes of the realme do rather blynde conscience than gyue a light vnto it / for if it be so than surely as thou haste sayde it wolde be reformed / for I thynke veryly the lawes of the realme iÌ„ many cases muste in this realme be obserued as well in conscieÌ„ce as in the iudiciall courtes of the realme ¶ StudeÌ„t I will with good will shewe to the shortely some other questions that be made in the sayde summe to gyue the other occasion to se therin the oppinions of the
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„
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
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 ⸫