whom agreeth Vlpian saying as boldlie and libidinously Betwixt a concubine and a wife there is no difference except the wife be a more worthy parsonage c Vlpian in l. item legato 49. §. 1. D. de leg 3. Yea euen in the bodie of their Law it is set downe for a rule that inter concubinatum et matrimonium nihil nisi affectio interest d L. 3. §. 1. D. de donat inter vir vxor ingenuaque mulier domi ante testationem pro vxore habenda est d. These are the oracles of the parots and parasites of the Romane Emperours who sought to sholder out the truth of God his word and to varnish their owne sinnes by the dreames of such dissolute Lawyers who thought perhaps that they might as wel defende as commit fornication and concubinage Vpon whose reuerend opinions the Pope sprinckleth the holie-water of his dispensations yea and dispenseth for incestuous mariage not onely with Dukes and noble men but as Angelus Perusinus sheweth euen with Barbors Tailors and Butchers e Angel Per. in l. matrem § filiam ad Treb. But it is fitlie said by some that he doth rather dissipare quà m dispensare f Felin post Doct. in C. quae ecclesiarū de constit And others haue been bolde to saie that he which obteineth such dispensation perhaps will hardlie escape in foro poli in the court of heauen howsoeuer hee be safe in foro Romae in the court of Rome g Arg. C. fin de praescript et Alci in l. 5. pedum C. fini regund Howsoeuer the Canonistes whereof the most part doe beare the cognisance of the whoore of Babylon do auouch that by such dispensation veritas naturae per Papam non tollitur which he cannot doe though he would sed inumbratur and therefore saie they the dispensation is lawfull h Arg. c. sedes de rescript l. 3. §. permit an argument drawne from the owles nest and from no place of Logike But the Emperour Theodosius speaketh onelie of a lawfull and honest consent in more modest tearmes saying Matrimonium absquè vlla pompa et celebritate nuptiarum atquè adeo absque vllis dotatibus instrumentis firmum est liberique ex eo suscepti iusti sunt Heere the Emperour excludeth pompe from mariage but not consent Neither doth he admit concubinage to be mariage i l. si donationum 22. c. de nup. It is now shewed that consent is required by the imperiall Law to the constitution or making of mariage It shall not be amisse to inquire whether it were necessarie or no by the auncient Law of the Romanes which was in the time of their florishing estate the Law almost of all the Nations of the world as Ouids speech importeth Gentibus est alijs tellus data limite certo Romanae spatium est vrbis orbis idem m Ouid. 2. Fastor And Claudian auoucheth the same though he liued when the Romane common weale was much empaired Armorum legumque parens quae fundit in omnes Imperium primiquè dedit cunabulacuris n Claud. 3. stil By the auncient Law of the Romanes if a woman had been kept in a mans house by the space of a yeare he might claime her as his wife o Hotomanus in comment ad duodecim tabul And by that Law a man might lend his wife to his friend for the procreating of children p Strabo lib. 11. Plut. in Cat. Tertul. in apologet as Cato lent his wife for that purpose to Hortensius which though Plutarch accompt fabulous yet Appian reporteth it as true q Appian lib. 2. de bel ciui and Quintilian affirmeth the same r Quintil. lib. 2. c. 5. Neither is it vnlikely that it was a custome practized of the Romanes for this lending of wiues was permitted by the Lawes of Lycurgus and as Plutarch reporteth it was a Law established by Numa ſ Plut. in comparat Lyc. et Num. A brutish Law doubtles and one of the maine errors of these great common weale men who as the Apostle saith became vaine in their thoughtes and their foolish heart was full of darkenesse and as they regarded not to acknowledge God so God deliuered them vp vnto a reprobate mind to doe those things which are not conuenient t D. Paul ad Roman 1. v. 2◠28. Now that we haue shewed that consent is necessarie for mariage it remaineth to bee declared how farre forth it hath beene accompted necessarie When the Romane Empire was in her infancy and first rising it seemeth that a verie slight consent would haue serued as may appeare by these wordes of Suetonius writing the life of Caligula Mar. L. Cassio Longino consulari collocatam abduxit et in modum iustae vxoris propalam habuit But of the Emperour Constantine furtiue and priuy mariages are vtterly condemned and abiudicated u l. vxor 7. Cod. de repub because it is against Christianitie to which the Lord therefore highly be praised all the nations of the earth begin to open their eyes and giue their free consent Such marriages as haue the publike testimony of the Church are greatly commended of Tertullian Vnde sufficiam ad enarrandam foelicitatem eius matrimonij quod ecclesia conciliat confirmat oblatio obsignatum Angeli renuntiant pater rato habet a Tertullian lib. ad vxor 2. And the Emperour Leo hath determined that the mariages of Christians shold be confirmed by the testimony of holy and ecclesiastical prayer and that these marriages which are otherwise contracted should not be held for good and Harmenopolus testifieth that by ecclesiasticall Canons it is prouided That there should be no priuie mariages and that no mariages should be celebrated out of the Church b Harmenop lib. 4. c. 4. And by the common law as M. Fitzherbert saith a woman married in a chamber shall not haue dower of her husbands c Fizh N. B. 150. N. lands but he modestly saith that it seemeth reasonable that shee should haue dower M. Parkins peremptorily affirmeth that the lawe in his time was directly to the contrarie that the law was so in his time I must take vpon M. Parkins credit for I haue not read to my remembraunce any yeare booke which was written in his time or since wherein that is recorded for law as to that which M. Fitzherbert saith that it seemeth reasonable how could it seeme reasonable vnto him vnlesse the mariage it selfe had seemed reasonable if he thought such a mariage to be good lawfull therein sauing reformation hee failed for beside the authorities which immediatly before I haue cited to proue that mariage must be celebrated in a publike place and in publike maner it appeareth that in the Iewish common weale that course was followed in the time of our sauiour by part of a similitude which he vseth Let your loines be girt about your lights burning
Demetrius the kinges of Asia yea euen all the Rhodians q Liuius which the Rhodians requited with like curtesie which was nothing else but a comburgeosie such as Bodinus r Bodin vbi supr reporteth to haue been made betwixt them of Valoys and certaine towneships of the Heluetians Betwixt the men of Berne and them of Friburge Betwixt them of Geneua them of Berne The nature of which comburgeosie is that there should be mutuall communitie of their cities and mutuall league of friendship betwixt them And if any of these so leagued in societie should forsake their citie and come to the citie of them with whom they were in league they should be ipso facto Citizens without any speciall enfraunchisement enroulment cooptation or any other circumstance before which time they were not subiect to the commaunde and Lawes of that citie but were onelie Ciues honorarij as Hercules and Alexander magnus were of Corinth Such a league of societie as seemeth by the yeare booke to haue been contracted betwixt the Citizens of Lincolne and them of the towne of Derbie that they of Lincolne should be quite from murage pontage custome and tolle within the village of Derbie for all kind of merchandize Å¿ 48. E. 3. 17. This was the difference betwixt veri and honorarij ciues the former were subiect to the Lawes orders and charges of the citie the other were not Plutarch t Plut. in Solon wondreth at Solon in that he made a Law that all straungers should be barred from the liberties of the citie of Athens except it were such as were in exile but indeed he perceiued not Solons meaning being a man of deeper reach then Plutarch as also was Polybius and Thucydides and Dionysius of Halicarnassus amongest the Graecians his countrymen whom notwithstanding in learning wit and eloquence he exceeded for Solon his purpose was in the making of that Law that none should enioy the liberties of the citie but such as should be bound and subiect to the Lawes of the Citie And there was likewise an other difference betwixt veri and honorarij Ciues for they which were veri ciues did loose the liberties of the citie of Rome whensoeuer they did purchase the freedome of any other citie Which may appeare by this that though Pomponius Atticus being borne in the citie of Rome was a citizen of Rome and more then that beeing a Senators sonne was eques Romanus who was therefore called Atticus because hee had the Athenians in such reuerence and estimation a man of great byrth for three Emperours doe referre their originall to him u Senec. in epist ad Lucil. yet this man could not bee made a citizen of Athens least as Cornelius Nepos reporteth the plain truth u Senec. in epist ad Lucil. he should loose his freedom of the citie of Rome But as to them which were honorarij ciues if they were enfraunchised of a w Cornel. Nep. in vit Attic. hundred cities yet they could not loose their freedome of any In England not Cities onelie admit others to their liberties but verie Societies of Students as namelie the houses of Court and to mine owne knowledge the worthie societie of Graies Inne to which be admitted such a number of excellent noble men great diuines surpassing gentlemen whereof some haue sued and been desirous to be admitted other some haue rather been called then ordinarilie consorted for their preeminence and worth according to the rule of Salomon As is the fining pot for siluer and the furnace for gold so is euery man according to his dignitie I pray God this fining pot may still continue her siluer of Learning and Law I beseech him likewise that this furnace of gold may still seuer the gold from the drosse that is religion and loialtie from paganisme and papisme which hitherto the Lord be praised it hath done But to retourne to my purpose of handling the nature and properties of Cities and Corporations Though in the generaltie of admittance all common weales haue accorded yet in the speciall maner of admittance they haue dissented and varied For in Athens they could not bestow their fraunchise vpon anie without the suffrage and voice of a thousand citizens at the least a Demosth contr Eubâ—lid But in such places and regions which by reason of the barrennes of the soyle or by reason of the distemperature of the ayre are not verie well habitable not onelie the originarie inhabitants but euen straungers and aliens are forbidden by the Rulers of the places to depart out of them As namelie in Moscouia b Sigis in hist Moscho Tartaria and Aethiopia c Francisc Aluares in hist Aethiop But amongest the Venetians and Rhagusians none can be admitted to their cities vnlesse it be for a great summe of money or some principall desert But now sithence we haue spoken sufficientlie of Corporations in generall let vs examine the first foundation and beginning of guildes and fraternities which as Corporations do support the good estate of a Realme so they do preserue the good estate of Corporations These Fraternities are deriued of the greeke word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is to be interpreted a well or pit for in drinking at one pit or well societie was at the first contracted thence is deriued 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 fraternitie So likewise Pagi towneships are deriued of the Doricke word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifieth a fountaine and in the Atticall dialect is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 By the meeting together at the first at one water or fountaine grew loue betwixt man and wife then betwixt brethren and sisters then betwixt vncles and nephewes then grew affinitie All which would haue been colde if there had not beene corporations colleges guildes fraternities and societies crected and established By the common Law no Corporations can be made but by the king yet his highnes may depute this authoritie to an other for so it commeth originally from the king howsoeuer Mast. Keble his opinion is that a Corporation must be made by the kinges expresse and immediate wordes d 2. H. 7. 13. But 22. Edwardi 4. and 20. Hen. 7. the opinion of Read is to the contrarie e 22. E. 4. Graunts 30. 20. H. 7. 7. and both Mast. Fitzherbert and Mast. Brooke g Br. Patents 44. abridging the case are in this contrarie to Mast. Keble f Fitzherb Graunts 36. And so is the opinion of Choke and Brian that if before the dissolution of Abbeys the king had licenced one to make a Chaunterie for a chaunterie Priest and to giue vnto him and his successors certaine land this had been a good Corporation h 21. E. 4. 56. But to all vnlawfull Gorporations all giftes grauntes fines and feoffements are made voide by the Satute of 23. Hen. 8. cap. 10. The first Lawmakers and founders of common weales at the first did accompt no foundation more stable to
to lose his entercourse with the seauen deadly sinnes the Pope to be a Protestant and a Beare to go to the stake If any Prohibition concerning Tythes come to be tried by them ar as sure to passe against the Parson as an old chimney is sure of blacknes But let any matter come to be tried touching common which concerneth themselues and their owne profit they will as surelie go with the commoner as the cloudes goe with the Northeast wind Therefore it seemed to him to be verie conuenient that because the Canon doth so much fauour Parsons that therefore the Canonist especially should haue debated at large of these matters And he thought the Canonist speaking so little of them in the whole discourse was much troubled with the tooth-ache the Canonist here being somewhat cholericke interrupted him and said he iangled for he said there were manie thinges proposed in the Dialogues which the Canon Law neuer medleth with all neither hath it so much tasted of them as the dogge licking of Nilus And in some thinges which were in the Dialogues the Canon Law hath nothing els but which the Ciuill Law hath so that he should not haue kept decorum but should haue thrust his sicle into the haruest of Codicgnostes if he should haue encroched vpon such thinges as the Canon Law hath as it were at the second hand streined from the Ciuill But said he as touching Tythes if any question had been proposed I would not haue been defectiue in the handling them at large Then the poore Countrie man made a lowe conge and Nomomathes bowed vnto him as being willing to heare him Sir quoth he I am by your worships fauour a poore countrie yeoman dwelling neare a place called Aitipolis and my yeares are more then my knowledge my patrimonie better then my education and my hand more nimble then my toong And I haue had a verie great desire to haue some vnderstanding of Lawe because I would not swim against the streame nor be vnlike vnto my neighbours who are so full of Law-points that when they sweat it is nothing but Law when they breath it is nothing but law when they neese it is perfite law when they dreame it is profound law The booke of Littletons tenures is there breakfast their dinner their boier their supper and their rere-banquet Euerie ploughswayne with vs may bee a Seneschall in a Court Baron Hee can talke of Essoines Vouchers Withernams and Recaptions And if you controll him the booke of the Groundes of the Law is his portesse and readie at his girdle to confute you Surelie sir my neyghbours are full of sension and tention and so cunninge that they will make you beleeue that all is gold which glistereth So that for a man to be amongest them and to haue lyuing and want Law is as if a man should haue bread to eate and want teeth to chew it Which occasions mooued me at the first to seek for some skill in Law and amongest other bookes I bought The Conference of Law whereof hath been spoken and casting mine eie vpon the diall of common wronges and trespasses I wondered that he which maintaineth the Common Law amongest his common wronges and trespasses he spoke nothing of Wast done in a mans ground and verie little of an Action vpon the case which is a wheele much turned about in the place where I dwel And though hee hath deliuered much of Iointenants and Tenants in common he speaketh either little or nothing at all of Parceners Now manie of vs countrie people marrie verie often with landed women and therefore would gladly be seene in that learning Truely Sir I bought the booke for my more vnderstanding of the law and for the noueltie and because it was in English yet there is a vengeance deale of Latin in it which put mee to the cost to buy a Thomases Dictionarie but it is no great matter for that for it wil serue my sonne Reginold when he shall bee tenne yeares olde or thereabout But I pray you sir at the next conference let vs haue somewhat of these matters which I haue mentioned vnto you When hee had ceased to speak Nomomathes grauely and with aduise censured their censures and spoke in this manner I see now saide he the prouerbe to be verified Quot homines tot sententiae there be as many minds as there bee men And though ye haue deliuered your exceptions in sportfull manner which as I doe not greatly dislike so I do not greatly delight in yet I must confesse euerie of them doth flie to the marke and the blame resteth vpon me who might haue proposed these matters to be discussed but because the lucre or losse of the conference was to redownd wholly to mee in all correspondencie of reason and not to others but by my curtesie I thought it a more conuenient course and more free and ingenious to follow the threed of mine owne choise then the vncertaine winge of popular conceit Againe all things cannot be handled at all times and nothing is to be intruded into such a conference which doth not relice to the sūdrie palates and tastes of these seuerall lawes For many things there be in the common law which hath not any affinitie with any thing in the ciuill or Canon But because your motions are so cōsonant to reason so directly respectiue to your vocations and functions which in no well ordered cōmon weale ought to be loosely regarded therfore I protest vnto you in sinceritie that if all these things which you haue mētioned may be cast in the molde of a tripartite discourse the secōd cōferēce shall bring forth that which you haue before conceited they thanking him for this kindnesse departed he immediatly questioned of the Lawyers whether they could bring into the compasse of their seuerall reckonings all these matters abouesaid who anusweared that they could Then said he because the Canonist hath bene so deeply charged we will begin with tiths which he is reproued for omitting Thē the Canonist said that they might be discoursed vpon according to the seuerall lawes vnder the title of prohibitiō That title thē said Nomomat shal be the first the second of actions vpō the case the third of debts the fourth of accounts the fift of wast the sixth of parceners and the seuenth of cōditions wherfore bend your selues wholly to this taske and let these things be diligently searched considered of you and for this purpose take the deliberation of twentie daies which being had and the twentie daies being run out Nomomathes did thus parle with Canonologus The first Dialogue of the second part of the Parallele or conference of the Ciuill Law the Canon Law and the Common Law of this Realme of England Of Prohibitions and Consultations NOmomathes I am 1. Diuision verie desirous Canonologus to know the first and primigeniall existence of Tythes 1. The originall of Tythes is inquired of that their originall being knowne their
of the Almightie The Bethshamites were not vnpunished for their prying into the Arke And the prouerbs of the heathens doe admonish vs not to bite the dead nor to wrestle with spirits It is not good to charge the dead with any other thing theÌ„ that which happened in their life for whosoeuer are departed this life stand or fall to their Lord who is the iudge of the quicke and dead and I think 〈…〉 thought of Nomomath to be but a fable the report of the serpent to be but a meere fable discrediting the author and dishonoring that worthie protector of the Christians but what say you Codicgnostes of these matters Codicgnostes I doe not remember any thing in our lawe repugnant to that which Canonologus hath aboue deliuered Nomomath What say you Anglonomophilax Anglonomoph Our law doth neyther fullie agree with that which Canonologus hath vttered neither in verie many things disagree from it as by your patience I shall at large demonstrate Wee haue a rule in our statute-law not much differing from the edict of the King of Fraunce aboue recited by Canonolog In decimis 5 One of the ancient statutes of England is compared with the edict of the king of Fraunce mortuarijs quando sub istis nominibus proponuntur prohibitioni nostrae non est locus dummodo decimarum illarum quantitas non ascendat ad quartam partem bonorum ecclesiae o Artic. cler c. 2. 10. H. 4. 1. Registr 49. b. And as to the diuersitie vsed in the Canon law where the question is facti and not iuris and where it is 6 The Canon law agreeth with the coÌ„mon attributing of the deuision of the right of tithes to the spirituall iudge de petitorio and not de possessorio M. Fitzherbert hath this assertion that if any parishioner doe disturbe or hinder a Parson or Vicar in the carying away of his tithes which is an iniurie in the fact whereas the carriage is through the waies and passages vsed and accustomed the Parson or Vicar may sue in the spirituall court for this disturbance p Fitzh N. B. 51. A. for in this case the spirituall Court proceedeth vnto excommunication q Registr 46. b. 47. a. One Parson may sue a spoliation against 7 Where one parson may sue a spoliation against the other in the spiritual court an other in the spirituall Court for the taking of tithes which belongeth to his Church though they claime by seuerall patrons and by seuerall presentments but this is to bee vnderstoode where the said tenth doeth not amount to the value of the fourth parte of the Church for otherwise the partie greeued may haue an Indicauit because the title of the patronage may come in debate But if they claime by the presentment of one patron theÌ„ a spoliation may be sued although the profits or tithes doe amount to the fourth part or third part or the moitie of the benefice because in such case the title of the patronage shall not come in debate And if a prohibition be sued hereupon the partie may haue a consultation r 2. H. 7. 12. Br. prohibit 16. Fitzh N. B. 51. C. 37. E. 45. B. 30. E. and if a man haue certaine sheepe depasturing and lying within the precinctes of the parish of N. within a yeare the parson of that parish may sue in the spirituall court for the tithe wooll of these sheepe and if the partie sue a prohibition hee may haue a consultation Å¿ Fitzh N. B. 51. D. for the suite for tithe doth properly appertaine to the spirituall Courte as by statute 8 The executors may be sued in the spiritual court it is ordeyned t 1. R. 2. c. 13. 24. H. 8. c. 12. 2. E. 6. c. 13. and it appeareth by the Register of writtes that if the pattie which withholdeth tithe make his executors and die the executors may bee sued u Registr 48. And if a man detaine tithes for his sheep which went in the parish of N. and were depasturing and couching there so long time if the partie die the parson may sue his executors for these tithes in the spirituall Court And so the Parson may sue the executors for the arrerages of tithes due by reason of certaine milnes of the testator in the life of the testator a Fitzherb N. B. 51. G. H. And the parson by prescription may in the spirituall Court claime tythes vitularum lacticiniarum of the beasts pasturing in his parish as namelie milke butter and cheese b Fitzherb ib. Regist 48. and the tythes of wooll and the tythes of honie and waxe c Fitzherb ib. and for these hee may sue in the spirituall Court and by manie authorities in our law the right of tythes is tryable in the spiritual Court d 22. E. 4. 24. 38. H. 6. 21. 22. Assis 75. But where a maÌ„ is sued for tythes of great trees aboue the age of twentie yeeres a prohibition will lye by the statute of 45. 9. Of what trees tythe may be demaunded by the statute of 45. E. â— E. 3. but of horne beames salowes and the like of what age soeuer they be being not apt for timber tythes ought to be payed e Ploid Com. en le case enter Soby Mol. And the branches of trees which be priuiledged from tythes shall be also priuiledged and the suit for the tyth branches of trees which are not priuiledged shall be in the spirituall Court as well as the suit for the tythe of the trees themselues for as Bracton saith non pertinet ad iudicem secularem cognoscere de ijs quae sunt spiritualibus annexa f Bract. lib. 5. c. 2. And thus it may appeare that as soone as the right of tythes commeth in debate the lay Court ought to cease and shall be out of iurisdiction and if it may appeare that the right of aduowson commeth in debate the spirituall Court shall be out of iurisdiction But if the parson of N. doe lease for yeares a certaine portion of his tythes rendering a rent hee shall haue an action of Dette for the rent if it be behind â—â— That the rent paied for Tythes vpon a lease for yeeres is a lay chattell at the common Law and not in the spirituall Court because the money is a lay chattell g 8. R. 2. Iurisdict 2â— D. 5. 106. And if the Parson take Oates or other graine as his Tythe and an other taketh them awaie from him the nature is altered and now they are become a lay chattell and the Parson shall haue an action of Trespas at the common Law h 35. H. 6. 39. Yea by the booke of 2. Ed. 4. if they be seuered from the ix part and not yet in the actuall possession of the Parson Yet if a stranger carie them awaie he may haue an action of Trespas i 2. E. 4. 15. 20. E. 4. 3.
the case was such A man being found in arrerages vpon his account did promise to the dettee that if he wold forbeare him per paruuÌ„ tempus that hee would pay him the money without further delay and the dettee did forbeare him accordingly and after vpon this assumpsit brought an action vpon the case and it seemed to three of the Iustices of the common pleas that the action would not lie because that paruuÌ„ tempus was no good consideration neither could it be beneficiall to the partie but one of the Iustices saide that if the dettee had brought an action vpon the case without any consideration alleadged and had proued the dette that would haue sufficed for that had beene an assumpsit in law and that there must be a reciprocall consideration in such case may most clearely and euidently be proued by 44. E. 3. A writte of dette was brought and the plaintife declared that the defendant did owe vnto him fiue poundes for a house which hee had sold vnto him the defendant said that there was a couenant betwixt the plaintife the defendant that the pr shold remoue the same house at his owne costs charges within a certaine day to a certaine place and when he had so remoued it that then the defendant would pay him his money and that the house or the frame of the house was not as yet remoued and this was held a good plea b 44. E 3. 28. And where two considerations are to be accomplished the performance of them both is to bee auerred Wherefore the case was that in an action of trespasse the defendant pleaded a concord that he before a certaine day should make certayne windowes and should paye certaine money and he said that he payed the money by vertue of the concord before the day and demaunded iudgement si actio c. But hee spoke nothing of the making of the windowes and the plaintife replyed Nul tiel accorde and it was for the plaintife and it was held by all the court a ieofaile For when they accorded that the defendant should doe two things the concord is not performed vnlesse both be done and so the matter of the plea is not good and therefore the replication cannot make it good c 6. H. 7. 10. And if I buy a horse of you for sixe pound you may deteine the horse till I haue payed you d 10. E. 4 1â— and so if one buy an horse of an other in Smithfield and do not pay to the vendor money presently but doth onely promise it the vendor may sell it to another immediately and the other can haue no remedie against him for otherwise he may be compelled to keepe his horse in perpetuum against his will e 17. E. 4. 1. per Choke And to this agreeth the booke of 21. H. 7. where it is said that in the bargaine it is implyed that the bargainee shall pay the money presently otherwise hee shall not haue the thing solde but if it were for a certaine day the money were not to bee payed before the daye because the bargainor hath giuen vnto him expresse libertie to pay at any time within the time prefixed f 21. H. 7. 6. And so is the booke of 28. H. 8. that a contract or bargaine is not good without present payment vnlesse there bee a certayne day limited so that one of the parties may haue an action of dette for the money and the other a writte of Detinue for the wares g 28. H. 8. 30 Dy. and if a man assure and promise to one that he will make for him certaine waines for carriage c. and hee taketh parcell of the money before hand to do it and after he doth it not according to his assumpsit the other may haue an action of trespasse vpon his case h Fitz. N. B. 94. A. so an action vpon the case was brought because the defendant promised to the plaintife that if the plaintife wold discharge I. S. of execution in which hee was at the suite of the plaintife that then he would pay vnto him his dette and in truth the promise was made to the wife of the plaintife to which the husband agreed and thereupon he discharged the partie and it was ruled by the court that the action was maintenable because a feoffement of lands or gift of goods is auaileable to the wife if the husbande doe not disagree so it is of an assumpsit i 27. H. 8. 24. 25. Nomomath Trouble your selfe no further Anglonomoph let me aske this one question of Codicgn whilest it resteth in my mind Suppose that I haue hyred a ship or gallie to transport my family and some of my houshold 4. Diuision goodes by lawfull permission and I agree to pay for the carriage of euerie poll or person of them a certaine summe of money admit that three or foure of them die in the ship whether shall the owner of the shippe haue the entire summe of money or shall it bee apporcioned for them that be dead before they be brought to the land k Ludouâ—c de Rom. in singulari Codicgn To cleare your doubt this diuersitie must bee vnderstood if the owner of the 1 That no fare ought to be payed for them that die in a ship if the master of the ship did assume to bring them safe to shoare shippe did make a couenant with you that he would bring them safe to such a place then surely you ought to pay no fare for them that bee dead l Id. in d. singu ad regu praedict but if the couenant were to take them into the ship and to carrie them to such a place theÌ„ the law wil be otherwise and so if a 2 If a child be borne in sea-faring nothing is to be paied for that child child be borne in the ship whilest it is vpon the sea there is nothing due in respect of that child m ff locat l. si adest §. si quis mulier Canonolog All contractes are bonae fidei and what is a contract but stipulatio verborum so that it is to be taken as the words doe sound no violence being offered to apparant equitie n Pecki ad reg iur Anglonomoph In our law there is a case not much swaruing from this purpose if we stand not too much vpon the common and verball way to go to the end of a question I. B. did 3 The barrister putteth a case of carrying a horse safe and sound ouer Humber declare by bill that A. at a certaine day and yeare vpon Humber did assume to carrie his horse being taken into his barge ouer the water of Humber sound and safe and the said A. did surcharge his barge with other things by which meane his horse perished in the water and this was held a good cause of action o 22. Assis pl. 41. but surely in this case without
thē both x 28. H. 6. 7. de tempore quo c. dum ipsa solafuit but whereas a man a woman be receiuors they after entermarie in the writ they shal be both named receptores a 4. E. 4. 26. 19 H. 6. 5. but a writ of account wil not lie against an infant as bailie or receiuor to any man because the law will not intend that any man will put confidence or trust in him who wanteth discretion experience b 17. E. 2. Accompt 121. 16. E. 3. Accompt 57. 27. E. 3. 77. 19. H. 6. 5. Canonol There is nothing in our law which oppugneth any thing that you haue said Nomomath If the master of the baylie happen to die whether may his executors charge 3. Diuision the bailie with an accompt Codicgnost By our law they may c ff acti mandat direc l. si vero §. f. 1 Anglonomoph That likewise is warranted by 1 Accompt ought to be made to executors by the ciuill law our law for if any haue cause to haue an actiof accompt against his bailie or receiuor if he dye his executors may haue this action yet the common law at the first was otherwise d 7. E. 3. 62 But now it is altered by the statute of Westminst 2. c. 23. and agreeth fully with your law in this For 38. E. 3. one was bailie of a woode to two ioyntenants a writ of accompt was maintained by the executors of him that suruiued e 38. E. 3. 8. to which accordeth 19. E. 3. and that the heire shall not haue a writte of accompt against him 2 The same is warranted by the common law that was receiuor to his father f 19. E. 3. Accompt 56. And 3. Eliz. the administrator brought a writ of accompt g 3. Elizab. 202. Dy. 3 That a writt of accompt by the common law will not lie against executors vnlesse it be in some speciall cases But a writte of accompt will not lie against the executors or administrators of a bailie or receiuor for the receit and occupation of their testator h Fitzh N. B. 117. C. vnlesse it be in the kings case i Littlet tit socage But if the executors doe once enter into an accompt a writte of accompt will lie against them in the case of a common person k 12. E. 4. 10. Or if the bailie or receiuor bee found to bee in arrerrages of accompt and die an action of debt lyeth against his executors vpon an insimul computauerunt l 2. H. 4. 13. And it appeareth by that booke that in the writ he must be named executor and a bailie may haue a writ of debt against the executors of his master for a surplusage of accompt m 13. H. 6. executor 21. Canonol This I can not withstand by any reason in our law Nomomath I pray you let me know the force 4 Diuision and substance of the authoritie which the master may giue to the bailie Codicgnost It is no more but when a man 1 What authoritie may be assigned to a bailife by the ciuill law may do a thing by himselfe hee committeth it to another to be done of him n Gaxalu verb. mandat And hee that doeth execute the authoritie ought not to exceed the limits of his authoritie o Iusti manda §. si is qui. But this difference 2 The difference of an authoritie a charge and command by the ciuil law we put betwixt an authoritie a command and a charge The commaund is determined by the death of him that commandeth the authoritie is not neither is the charge as by this verse though somewhat obscure is not obscurely signified p In his de verbo sig Praeceptum non praecipitat mors praecipientis Mandatum mandatore cadente cadit Canonol But some hold opinion that all these 3 The canon law is against the difference so likewise is the common law three authoritie command charge doe expire by the death of him that commaundeth chargeth or giueth authoritie q Ioan. 14. q. 1 quod praecipit Anglonomoph In deed that is more agreable to our lawe especially in this matter of bailieship as may appeare by diuerse authorities in our law r 2. Eliz. 177. Dy. 5. Eliz. 219 Dy. 2 E. 4. 4. 10. Eliz. 270. Dy. Nomomath I pray you let me know the difference ◠Diuision betwixt a bailie a solicitor an atturney and deputie that I may haue more distinct knowledge of that which I endeuour to know Codicgnost A bailie is he to whom a speciall charge of procuring a mans profite and the valuable 1 The difference betwixt a bailie a solicitor and attourney and a deputie is shewed out of the ciuill law increase of his wealth is committed ſ Gazalup in ver villici an Attourney which wee tearme by the name of Procurator adiudicia is he which in place of iudgement doth for an other man by his warrant complaine or defend t ff mandat l. 1. §. 1. and this may bee done either in the presence or absence of the master but a solicitor which of vs is tearmed Procurator ad negotia is hee that handleth the cause of his master being absent And an Attourney by our law must at the least bee of the age of xxv yeares but a sollicitor may bee though he be but seuenteene yeares olde u c. fi de procu l. 6 A deputie is hee to whome a speciall authoritie is committed to deale in a certaine businesse x c. de offic eius qui vic gerit And there is this difference betwixt a bailie or a deputie and an attourney or a sollicitor because in a baily or deputie the businesse which is committed to them which we call negotium extra iudicium beginneth at the ministerial partie that is the bailie or deputie and is transferred vnto the Lord or master for the effect of the businesse whether it be profit or charge belongeth to the Lord but the busines of the Attourney or sollicitor which we call negotium in iudicio is originally in the Lord or master after as we say transfunditur in procuratorē it is conueied to the attorney or sollicitor a l. si procurator meus ff de neg ge Canonol We make no such difference in our 2 The difference holdeth not in the canon law law for euerie one which doth administer an other mans busines we cal by the name of procurator b 1. q. 3. saluat Anglon The common law doth in this more agree with that which Codicgn hath said I will 3 The cōmon law according to the aforesaid difference doth more agree with the ciuil then with the canon law speake of this difference as the cases in our law concerning it shall come to my memorie The name and office or duetie of a sollicitor
stretcheth verie farre in our law for it may extend to the procheinamy the next friend by whom an infant or one within age shall sue an action or to the warden of the infant by whome the infant shall be defendant in an action c 13. E. 3. Attorney 76. 40. E. 3. 16. And an infant was receiued to sue a writte of error by his warden d 27. Assi pl. 53. Fitz. N. B. 27. H. And an infant shall not remoue hir warden nor disauow his next freind which sueth an action for him e 34. Assis pl. 5. 27. Assis pl. 53. But by a writte out of the Chauncerie the infant may remoue his warden or the Court by their discretion may remoue him f Fitzh N. B. 27. M. 27. Assis pl. 53. But as to the making of an Attourney we haue this rule in our lawe Nemo potest facere Atturnatum nisi habeat proprietatem in re ideo custos non potest facere Atturnatum quia non habet proprietatem g 13. E. 1. Attourney 103. In a writte of Attaint the defendant made an Atturney in the Chauncerie by a common writte de Attornato faciendo the tenor whereof was ad lucrandum perdendum in loquela quae est coram Iustitiarijs per breue nostrum inter I. S. petentem I. N. tenentem de placito terrae c. but the warrant of the plaintifs attourney must be thus ad conuincendum 12. Iur. de placito terrae c. per viginti quatuor c. h 2. E. 3. Garrant dattour 21. But the power authoritie of the attourney is by the iudgement determined and carried backe to the master Wherefore it was saide 4. E. 3. that after iudgement the attourney was not receiued to release the dammages nor to acknowledge satisfaction i 4. E. 3. Attourney 18. 34 E. 3. 95. 34. H. 6 51. 1. E. 2. Garrant 22. contrarie to the booke of 33. H. 6. k But there is great difference betwixt a bailie a deputie for though a bailie haue a larger scope of authoritie and power then an atturney or sollicitor yet he hath but an authority but a deputie hath an imperfect interest mixt with an authoritie which by cases accomodated to this purpose shall be euident The bailie of a mannor cannot lease the lands of his Lord but onely at the will of the Lorde for I doe not take the booke of 2. E. 4. to be law that the bailie may lease lands to hold at his owne will yet that booke giueth an action of debt if a rent bee reserued vpon the lease to the Lorde not to the bailie l 2. E. 4. 4. but 8. E. 4. is the better law in my opinion where it is helde that the baily of a mannor cannot make any lease of the mannor nor of any parcell of it without speciall commaundement of the Lord to doe it m 8. E. 4. 13. But if he cut downe trees or kill any beastes going vpon the land of the manour without lawfull cause an action of the case will lie against him n 2. E. 4. 13. And 19. E. 3. it was held that by no vsage in the world a Bailie or Steward of a manour could lease the freehold o 19. E. 3. Feoff 68. But it is held by Catesby 8. E. 4. that the Lord may giue power in expresse wordes to his bailie to lease land and if the bailie hauing receiued such authoritie doe lease an acre of land vnto a stranger and doth not giue to the Lord notice thereof if the Lord enter into this acre the lessee may punish him by an action of Trespas and yet he had no notice thereof but the reason is because he had before giuen such a power to the bailie p 8. E. 4. 1. et 9. Dutch de Suffolkes c. per Catesb And therefore I thinke that the book of 2. R. 3. which is that the bailie hath power to lease land and to improoue it is to be intended by speciall warrant and authoritie of the Lord committed vnto him But it seemeth that of himselfe he may sell trees if there be great abundance and may repaire houses with them but he cannot reedifie houses with them if they be falne q 2. R 3. 14. 12. H. 7. 25 But that a deputie hath an interest conioined with an authoritie in the thing which is deputed vnto him may be thus prooued 11. Elizab. it was cleerely resolued that two daughters being heires to the Constable of England might make their sufficient Deputie to exercise the office for them and after mariage that the husband of the elder onelie might performe the office r 11. Elizab. 285. Dy. And 39. H. 6. it was agreed by all the Iustices that if a man haue an office and maketh a deputie which misuseth the office the grauntee or inheritour of the office shall forfait it for the deputie is sub officiario and the officer remaineth officer vntill the forfaiture Å¿ 39. H. 6. 32. And these wordes that the deputie is sub officiario are so in my conceit to be vnderstood as the lessee at will is vnder the lessor in case of a demise of land But there may be a forfaiture in the one case and not in the other because in the office deputed there is a speciall authoritie mixt with a speciall interest And Quaere whether for the dette of the deputie the office may not be extended whilest it is in the deputies handes Codign Surelie it seemeth that the deputie 4. That by the ciuil Law contrarie to the common Law there is no maner of interest in a deputie hath no interest at all in the office and that may appeare by the obseruation of auncient times For if a man may compare greater things with lesse the Quaestor of a Prouince was a deputie to the President or Gouernour of a prouince in his absence but yet their power was diuerse and the interest was not assigned but resembled as Caesar doth rightlie distinguish them Aliae sunt legati partes aliae imperatoris alter omnia agere ad praescriptum alter libere ad summam rerum consulere debet t Caes lib. 3. de bello ciuil The office of a Deputie or Lieutenant and the office of a Gouernour or Commaundour are diuerse the one of them that is the deputie doth all thinges by the prescript of his commaundour the other freelie prouideth for the maine and principall consequence of thinges And briefely and substancially he thus describeth the duetie of a Deputie Officium legati fiduciariam operam obtinere u Caes lib. 2. de bel ciui And that a deputie is but as a minister to the principall officer may appeare by Ciceroes precept to his brother Sit annulus tuus non vt vas aliquod sed tanquam ipse tu non minister alienae voluntatis sed testis tuae a Cicer. ad Q. fratr Let not
and deplore the iniurie of the times which did cause her crasines I perceiuing this waied mine owne frailtie which in one and this very spring tide haue in my selfe knowne the force of seasons and to the glorie of God acknowledged it I had no meanes of comfort wherewith to refresh this drooping Ladie but onely with a plaine English mantle to attire her and recommend her vnto thee She will report many things vnto thee of the renowmed Assyrians the valiant Persians the spirit-guided Hebrewes the prudent Grecians the admirable Romanes the noble harted Carthaginians the victorious Macedonians the deliberatiue Turkes the politike Italians the chiualrous French the most puissant inuictis Romano Marte Britannis a Tibul. 4. Elegi 1. she will manifest vnto thee their iudgements their censures their aduises and practises Et quae mox imitere scias nec desinet vnquam Tecum Graia loqui tecum Romana vetustas Antiquos audito duces assuesse futurae Militiae Latium retrò te confer in aeuum b Claudi de quart Consulat Honor. I commit this booke gentle reader to thy curtesie it is the first to my knowledge that hath bin written of this matter if my paines be not correspondent to the dignitie of the subiect the pardon lyeth in the beneficence of thy curtesie Euerie one cannot be a Scipio or a Laelius to ouertake euerie thing which they vndertake euerie one cannot say as one of them said Sapientis non est dicere non putaram Appelles could but only describe the head and face of Venus Achilles killed many Troianes could not surprise their citie and Virgill before he commeth to the death and tombe of Aeneas fayleth and slippeth into the description of the death and tombe of a Gnat. Perfection is a rare birde which flieth from many that with sweating and breathing follow it Yet some handle that which they can not gripe and their endeuour is not disliked Some make a bolde attempt and fayle of the victorie whose audacitie is accompted a vertue Some in not despairing of that they purposed haue been thanked for their hope For mine owne part I craue no thankes but good woordes and good will and thy fauourable acceptance friendly Reader which being an effectuall benefite may perfit all imperfections Farewell in the Lord. March 30. Anno Domini 1602. Thine in all kind respect WILLIAM FVLBECK A Table of the contents of the Chapters of this booke Chap. 1. OF the differences of Times and seasons by the Law of Nations fol. 1 Chap. 2. That by the Law of Nations Emperors Kinges and absolute Monarches haue full power and authoritie to seise the landes and goodes of their subiectes condemned for heinous offences fol. 9 Chap. 3. That the worthines of bloude hath been principally respected of all Nations fo 14 Chap. 4. That in making Title by prescription and continuance of time immemoriall all Nations haue consented fol. 19 Chap. 5. That by the consent of all Nations consent principally maketh a lawfull mariage fol. 22 Chap. 6. That by the practise of all Nations Democracie hath been bette down and Monarchie established fol. 28 Chap. 7. Of the Law and Iustice of Armes of Leagues of Embassages denouncing of warre of Truce of Safeconduct Captiues Hostages Stratagems and Conquestes according to the Law of Nations fol. 33 Chap. 8. That in the Lawes Constitutions touching Cities corporations liberties franchises and immunities and the good gouernment and administration of them all Nations haue agreed fol. 52 Chap. 9. That the distinguishing of demesnes and the difference of the degrees and callings of men is according to the Law of Nations fol. 60 Chap. 10. That in the Law of Tributes Subsidies and Prerogatiues roiall all Nations haue consented fol. 68 Chap. 11. That all Nations haue both secretelie and by the course of their ouert actions acknowledged and yeelded to the Truth of the Lawes and commandements of the second Table of the Decalogue fol. 75 Chap. 12. That the rules of warre and Law of Nations are not to be obserued and kept with Pyrates Rebels Robbers Traytors Reuoltes and Vsurpers fol. 81 Chap. 13. That by the Law and practise of Nations warre is not to be mainteined against Infidels onely because they are Infidels And that Princes in their Realmes may inflict punishment for straunge worships fol. 85. The first Chapter Of the differences of times and seasons by the Law of Nations AL Nations in putting difference betwixt times and seasons haue rather followed a populer and common obseruation then the precise rules and principles of Astronomy accompting it more conuenient and requisite that sithence all contracts and matters of entercourse doe fall within the listes and precincts of time that therefore the moments and measures of time should be publikely and familiarly knowne to populer conceit In setting downe the definition of Time they agree in the substance and matter it selfe though in wordes and tearmes they be somewhat dissonant Aristotle a great Philosopher amongst the Graecians defineth Time to be the measure of motion according to prioritie and posterioritie a short and subtill definition but yet true sound Varro as great and famous amongst the Romanes defineth it to be interuallum mundi motus the space of the world and motion a briefe definition and verie nimble if it be nimbly vnderstood for by the world he meaneth the course of time by motion the course of thinges Others as the Egyptians haue defined it a dimension perceyued by the conuersion of the heauens Plato who of these matters had in his trauayle conference with Arabians Egyptians and Chaldeans defineth it to be a moueable and chaungeable representation of Eternitie c Plat. in Tim. and truely and aptly doth he tearme it a chaungeable representation or image of Eternitie for as Censorinus noteth Time in regarde of Eternitie is but a winters day d Censo c. 4. de di na But though time be as much obscured in eternitie as a small penny is amongest the riches of Craesus yet as that was part of his riches so time must needes be a part of Eternitie Cicero defineth time more vulgarly to be a part of Eternitie with a certaine difference of a yearely monethly daily and nightly distance e Cic. lib. de sin 4. so that Plato his definition hath relation to the cause of time Ciceroes to the persons that make vse of time Philosophers haue left to posteritie many subtill deepe and learned discourses of time but bidding their definitions and disputations farewell I will examine and weye the distinct partes of time with a popular ballance and according to common sence taking that course to be most sutable to my profession The partes of time according to the generall diuision of Nations are a yeare a moneth a day an howre and a moment for the Olympiads and Lustra as being proper to the Graecians and Romanes must be secluded from this Treatise and Seculum as being a thing