betwixt cleane and vncleane and they shall iudge my lawes and my precepts i Ezech. c. 44 And in another place Aaron and the priestes shall iudge betwixt leprosie and leprosie k Leuit. 13 Iosaphat the King of Iuda when he did appoint Iudges in all the Cities of Iuda he did appoint also in Ierusalem Leuites and Priests that they might adiudge iustice and the cause of the Lord vnto the inhabitantes and he appointed them to iudge of euery cause of their brethren which was betwixt kinred kinred whensoeuer question should be of lawe of commaundement of ceremonies of iustifications and he appointed Amasias the high Priest in these things which belong to God l Paralipom 2. c. 19. afterward the high Priest Iesus Christ did giue diuine laws rules vnto his people m Epistol ad Hebr. c. 3. 4. 5. 8. 9. after him his Apostels n Actor 15. 2 ad Theslalo 2. then Bishops and Prelates in their dioses o De potest summ pontif in Canon cuncta per mundum 9. quaesti 3. their power their Cannons their lawes were approued by diuerse Emperours and Kings Philip Valentinian Marcus Iustinian Constantine the great Honorius and Theodosius p L. cum l. 4. de sacros eccles lib. 1. C. tit 5. priuileg quae general l. 12. eod tit §. 1. in ecclesiast tit in authent collat 9. tit 6. Rusin lib. 10. hist eccles c. 1. and many others And by King Henry the eight of famous memory late King of England in his Parliament helde the 25. yeere of his most prosperous raigne and reuiued in the first yeere of our renowmed Queene and Soueraigne Lady Elizabeth q 25. H. 8. c. 19. 1. Elizab. c. 1. As to the originall of the Ciuill law I doe not thinke that that which may properly be called Ciuill lawe and was so called at the first is any other then ius Romanum or ius antiquum Romanorum or that which hath beene commented thereupon or added thereunto It is manifest that Romulus did establish lawes r Dionys Halicarn li. 3. and so did the other kings that followed him and that the law was brought into a conuenieÌ„t forme in these times it is very apparaÌ„t by this that M. Tullius being one of the dunmuirs was thrust into a sacke and by Tarquin his coÌ„mandement was cast into the sea because corrupted by lucre and rewarde he did suffer the booke contayning the secrets of the sacred lawes of their Citie to be copied and written out by Petronius a Sabine Å¿ Valer. Maxim lib. 1. c. 1. and P. Papyrius is said to haue brought al the regal laws into one volume t Valer. Maxim lib. 2. in princip E◠§. iur ciuil de â—eter iur enudeat and for the perfitting of the other lawes the lawes of the 12. tables were giuen forth by the decem-uiri u L. 1. § exactis de origin iur Diodor. Sicul 12. Dioâ—s Halicarnas lib. 2. 10. which excellent lawes if they were well and at large explained would giue such light intelligence to the makers of lawes that nothing in my simple coniecture more coÌ„modious could euer happeÌ„ to any coÌ„mon-weale these together with other constitutions made vpoÌ„ principal occasion were obserued retained as the leuil of the Romane gouernmeÌ„t whereas in the times of ciuil dissention they were repealed or discontinued Augustus Caesar that admirable and worthy Emperour did reuiue the good laws reformed the badde by the perfection of that Common-weale brought about by him the cicle of the whole world as resting vpon that center became presently and vniuersally peaceable quiet a Veller Pater c. lib. 2 histor but the Emperours succeeding him hauing more care to be great then to be good made smal reckoning of these laws but by voluÌ„tary conceit coÌ„manding forbidding they rather raged theÌ„ raigned the decrees of some of theÌ„ namely Tiberius Caligula CoÌ„modus are wittily tearmed of the lerned ciuiliaÌ„ furores noÌ„ iudicia b Alber. Gentil lib. lecti Et Epi. 3. c. 18. but these laws in the times of Archadius Theodosius IustiniaÌ„ recouered their streÌ„gth shining to al the CoÌ„mon weals of Europe as the Sun to al the climats of the earth haue for their worthines necessary vse emploimeÌ„t receiued intertainmeÌ„t countenaÌ„ce great reward of Emperors Kings and Princes The law of this Realme hath as the Realme it selfe suffered chaunge by conquest yet as farre as I can perceiue by record of auncient times rather reason then soueraignety and consent rather then commaund was the principall agent in the alteration our greatest lawmakers in former times were Ina Alured Guthran Edwarde Ethelstane Edmund Edgar Ethelred Canutus after their Raignes ended and their lawes established K. Edward the Confessor after his inauguration in the throne of England finding in the garden of the Common-weale some lawes like to weeds others like to flowers as a diligent bee he extracted a good iuice out of the better laws and the worser by him neglected by disusing withered King William the Conqueror hauing wholly subdued this Realme perceiuing that his subiects did with great applause sauor the lawes of King Edward yer seeing in them somewhat which himselfe and others in politike consideration disliked imitating the frugall huswife who knoweth that the best hony cannot be good vntill it be clarified and refined singled out twelue persons out of euery shire imitating perhaps the Romanes who appointed decemuirs for the making of their lawes Men of approued skil and fidelity who might by exploratioÌ„ seuer the drosse from the the gold and the erronious lawes from the conuenient and commodious c Lambard lib. archaeon adding therunto some customes of Normandie d Lib. des customes de Norman whereof many for the resonablenes of them haue to this day continued This lawe hath had daily increase many of the olde lawes standing vnaltered some of them by reason of some sinister effect or sequele happening by them iustly chaunged and others by reason of newe accidents adioyned vnto them It hath florished long in this good estate and of the continuance and prosperitie of it three reasons in my shallow conceit may be rendred First because it so agreeth with the law religion and discipline of the holy Catholike and true Church of Christ that there is nothing in it which to the lawe of God is crosse or opposite Secondly because other nations with whom we haue commerce entercourse doe not find their commodities or liberties to be impeached by this lawe Thirdly because they are rather popular then peremptorie rather accepted then exacted and rather embraced then perswaded And with this I conclude leauing these lawes to your further and more considerate commendation Thine in all duetifull respect William Fulbecke The Table of the seuerall Titles of the fifteene Dialogues ensuing 1 Of Contractes Fol. 1. a. 2 Of Gifts and Graunts 7. b. 3
fit to iudge of these matters then any aboue mentioned is Polibius a man highly commended by a learned ciuilian q Alberi GeÌ„til lib. de arm Rom. 2. c. 13. as a good soldier experienced in warlike affaires Å¿ Bonus qui rebus interfuit miles as a good Captaine in the regiment of soldiers t Bonus qui rebus praefuit ductor as a good Iudge in the controuersies of great Princes u Bonus qui summis imperatoribus adfuit arbiter his opinion of the cause of the Romane glory is this Fortune onely saith he did not purchase to the Romans the vniuersal Empyre of the world but vertue and discipline he meaneth I doubt not the discipline of religion of armes and of law being all of them fit instruments for such an effect w Polyb. lib. 1 Non fortuna Romanis vniuersale imperiuÌ„ peperit sed virtus disciplina apta ad tantaÌ„ rem omnia and the law is prophecied by Anchises that graue Troian to be the very ground and occasion of the Romane felicitie for thus he saith to Aeneas Regard thou O Romane to gouerne nations by iust commaund these shall be thy artes to bee mercifull to the meeke and sterne to the proude and to prescribe order to peace x Virgil. lib. Acneid 6. Tu regere imperio populos Romane memento Hae tibi eruÌ„t artes pacique imponere morem Parcere subiectis debellare superbos and Hannoes speach in the Senate house of Carthage was that the best education of young men was to be brought vppe in the obedience of Lawes hee speaketh thus of Hanniball I thinke it most fit to schole and trayne vppe this younge man vnder Lawes and magistrates and that hee shoulde bee taught to liue in iust manner amongest others leaste from this little sparke a greate scale-fire doe growe y Ego istum inuenem sub legibus sub magistratibus doceÌ„duÌ„ viuere equo iure cuÌ„ caeteris censeo ne quandoque paruus hic ignis incendiuÌ„ ingens exsuscitet Liuius lib 21. and as lawes haue supported and vpheld euery estate into which they were entertained so the decay of them hath beene the desolation and downefall of all estates and the common-weale of Rome if euer any hath tasted the lamentable bitter and wonderfull experiment hereof For Cicero in the person of Scipio that excellent man doth euidently and amply according to his manner describe the ruine and declining of the Romane glorie Scipio is opinion that the common-weale cannot be gouerned without great iustice and that as in musicall instruments a concent or harmonie is made of distinct sounds which being chaunged and distuned the eares are offended with an vnplesant iarring so of the principall meane and inferior sorts of men agreeing amongest themselues the good estate of a Citie doth grow and that which in musicke is called harmonie in a common-weale is tearmed concord which can neuer be without iustice but when iustice was obscured suppressed in the Romane common-weale there was not then a vicious common-weale but which was a great deale worse then that there was no common-weale at all but a apparant disorder and confusion a Cicer. in Laelio And this was well perceiued by that ancient writer Ennius for he bewailing the great alteration and decay of the Roman common-weale doth withall disclose the cause of that straunge accident alas whether is the power and strength of Italy vanished into what a slender shadow are we shrunke the state of Rome cannot stand without the ancient manners and magistrates b Heu mihi quo latiae vires vrbisque potestas Decidit in qualeÌ„ paulatiâ— fluximus vmbraÌ„ Moribus antiquis stat res Romana virisque Fragm Enn. for these ancient manners which he affirmeth to be wholly preserued and retained by the iust gouernment of Magistrates Cicero auoucheth by way of comment vpon Ennius his speach to be good lawes and customes Before our memorie saith he our auncestors by custome did preferre excellent men to the Magistracie and themselues being worthie men did obserue the auncient customes and the lawes of our forefathers c Fragm 5. lib Ciceron de repub Ante nostraÌ„ memoriam mos ipse patrius praestantes viros adhibebat veterum morem ac maiorum instituta retinebant excellentes viri and Saint Augustine a better iudge then any that spoke yet layeth all the fault blame of the miserable and wretched estate of the Romanes vpon the breach and contempt of lawes For saith Augustine the noble and vn-noble were put to death not by laws and iudgement of Magistrates but by quarrels and malice of minde d D. Augustiâ—us lib. de ciuit dei 3. c. 24. Neque enim legibus ordine potestatuÌ„ sed turbis animorumque conflictibus nobiles ignobilesque necabantur This may suffice to conclude and and conuince my former assertions that no Common-weale can flourish without lawes and if they be once receyued and approoued and afterward altered defaced and trode vnder foote such contempt and carelesse neglect of lawes procureth the sodaine and finalâ— miserie calamitie and distreputation of that Common-weale Nowe heare me a little proouing likewise vnto you the antiquitie and long continuance of these three lawes wherof the Dialogues ensuing doe beare plentifull discourse for the good administration and regiment of all Common-weales The Cannon lawe is more auncient then the other twayne and of greater continuance For amongst the ancieÌ„t Egyptians priests were iudges e Elia 〈…〉 lib. 14. vari Histor c. 54. The Druidae the priestes of the aunciente Galles did iudge of all controuersies as well priuate as publike and for offences they did ordaine and inflict punishment and if any man did not obey their decree they did interdict him their sacrifices which was the greatest punishment amongest them for all other did auoid the speech and company of such persons as a contagious euill f Iuli. Caes lib. 6. com Numa Pompilius the second King of the Romans instituted a high priesthood with an inferior order and he gaue them power to make lawes concerning spirituall things without the controle or countermaund of any and as a parcel and member of religious matters they had in charge the administration of poore mens causes and of all such matters which in the Ciuill lawe are called piae causae g Plinius secun lib. de viris illustri c. 3. Eutropi lib. 1. histor Dionis Halicarnas lib. 2. Liui lib. 1. Fenestel lib. de sacerdot Rom. Plin. li. 13. c. 13 Cicer. pro doÌ„ sua de aruspec respon But what need heathen examples when the Common-weale of Iudaea that is Gods owne Common-weale doth afford pleÌ„tiful example and authoritie herein Heli and Samuel the priests of God did gouerne amongst the people of Israel h 1. Reg. c. 1. 1 Reg. c. 7. 8. And so God hath expressely commaunded My priests shall teach my people what difference there is
tenancie of whom fealtie is demaunded and he refuseth to perfourme it ſ C. vnico que fuit prima causa §. sed non est alia so that the Lorde doe demaunde fealtie at due times and allowed by Lawe because if he should demaund it euerie yere the vassalle should not loose his tenancie t §. si vastallus si de feud de funct ' §. licet vastallus c. domino guerrā in tit hic finit lex c. also the vassall looseth his tenancie if 2 Many causes of the tenants forfaiture in the ciuil Law being at full age he be not in expedition with his Lord or if he doe not depute some able person for the discharge of the duetie or if he doe not pay to his Lord stipendia militiae pro quantitate feodi when he is lawfully demaunded u de pace iuram firm §. fin and that is said to be a due quantitie of a knights see whē the vassall which goeth not in war nor sendeth a sufficient man doth yeelde the halfe part of the yerely value of his tenancy to the Lord. x C. Imperialem § firmiter de prohi feud alien p Freder Angonomo There be many conclusions in our 3 Some cause of forfaiture at the common Law Lawe aunswerable to that which you haue said for it hath bin affirmed that if a man holde his land of his Lord by homage and fealtie and he hath done homage and fealtie to his Lorde and the Lorde hath issue a sonne and dyeth and the seignorie discendeth to the sonne in this case the tenaunt which hath done homage to the father shal not do homage to the sonne because when a tenaunt hath once done homage to his Lorde hee is excused for tearme of lyfe to doe homage to any other heire of the Lord a Litt ' lib. 2. c. 7. sect 13. But if a man bee seised of a Mannour and an other man holdeth lande of him as of the foresayde Mannour by homage and hath done his homage vnto him and a straunger bringeth a Precipe quod reddat against the owner of the Mannour and recouereth the Mannour against him and sueth execution in this case the tenaunt shall agayne doe homage to him that recouered the Mannour though he haue done homage before because the estate of him who receiued the first homage is defeated by the recouerie and it lyeth not in the mouthe of the tenaunt to falsifye or defeate the recouerie which was against his Lorde b Litt ' ibid ' sect ' 17. And if if a tenaunt which ought by his tenure to doe homage to his Lorde come to his Lorde and say vnto him that hee is readie to doe him homage for the tenements which hee holdeth of him and the Lorde doth then refuse to receiue it after such refusall the Lord cannot distreigne the tenaunt for the homage before the Lorde require him to doe homage vnto him and he refuseth c Litt ' lib. 2. c. 7. sect ' 19. 20. and he that holdeth by Knights seruice of the King neede not goe to warre with him if hee will finde a sufficient person conueniently armed and fitte to goe with the King and this seemeth good reason For it may bee that hee that holdeth by such seruices doth languishe in sickenesse so that he cannot goe nor ryde And a Feme sole which holdeth by such seruices may not in such case goe in proper person and it hath beene said that Escuage shall not bee graunted vnlesse the King goe to warre himselfe in proper person and after such a voyage royall it hath beene likewise affirmed that by authoritie of Parliament Escuage shall be assessed and put in certaine how much euery one that holdeth by an entier fee of Knightes seruice which was not with the King by himselfe or by an other for him shall pay to his Lord of whom he holdeth by Escuage as if it be ordeigned by authoritie of Parliament that euery one which holdeth by an entier fee of Knights seruice that was not with the King nor any other c. for him shall pay to his Lord fortie shillinges then euery one that holdeth of his Lord by the moitie of a Knights fee shall pay to his Lorde fortie shillinges and he that holdeth by a fourth parte tenne shillinges and soe pro rata d Litt ' lib. 2. e. 3. sect ' 5. 6. 8. 7. E. 3. 29. Nomom Resolue me I pray you whether when 9. Diuision the tenant hath committed treason or felonie and thereof is conuicted and attainted he shal as to his tenancie incurre any preiudice Codicgn In such case either the offence is 1 Whether when the tenant hath cōmitted felony or treason and is attainted he shall suffer any preiudice in his tenancie 2 A diuersitie in the Ciuil law where the offence is committed against the person of the Lord and where against the person of a straunger committed against the person of his Lord and so he doth preiudice all these that are to succeede him in the land by order and course of Law depriuing them of the aduantage of inheritance e Cap. vnico §. denique in si in illis verbis si tamen fuerit paternumt it que fuit prima causa ben amitt or he hath offended against some other person and not against the person of the Lord then the children onely and such as were to take benefit by the person of the father as issuing from his bodie are repulsed from the inheritance f §. Si vassallus culpam si de feud◠defunct ' and then it goeth to them of the kinred which are nearer in degree g Gloss super verbo reuocabuntur in d. si vassallus culpam Anglonomoph By our Lawe where the tenant is outlawed of felonie it is in the Lords election to haue a writ of Escheate supposing that his tenant was outlawed of felony or that he dyed without heire for by the attainder the bloud is corrupted h 48 E. 3. 2. But it seemeth by Nicholses case 3 That by the common law by attainder of felonie or treason the bloud is corrupted and in the one case the land shall eschete to the king and in the other to the immediate Lord. that the partie attainted ought to bee dead before the lande can escheate for according to the opinion of Dyer and Barham in the Kinges case after the attainder and till Office be found the see simple shall bee in facto in the person attainted so long as he shall liue for as he hath a capacitie to take land of a new purchase so he hath power to hold his auncient possessions and he shall be tenant to euery Precipe and if he died before office found and the land be held of the King the lande shall goe to the King in nature of a common eschete i 18. Eliz. Com̄ 477. Nichols case but this is to be intended in
such as enter into suit ar not vtterly reiected of our law for as to the 2. first which concerne profit and necessitie our law doth rigorously exact them as to the other it is not against it for it doth not forbid nor hinder any man to be curteouse to an other but it being a science rather politike then morall doth more respect the Iustice of causes then the curteous gestures of men our law doth vrge men to deale well and honestly if they do otherwise it doth punish thē but curtesy is a free spontaneal ingenious quality to which no inforcement may be vsed but I wil first examine by your patience how farreforth our law regardeth the abilitie of the person which is to impleade an other and then by course will examine all the partes of your precedent speech inquiring by our bookes howe they may sort and be sutable to our law First it hath beene receiued of vs as a currant rule from all antiquitie that the desendant may 4 Disablemēts in the person of the plaintife at the comon Law plead outlawrie in disablement of the plaintife but if he doe imparle nowe he cannot plead outlawrie to the disablement of his person but yet he may well plead it in barre of the action n 32. H. 6. 32. 35. H. 6. 36. so in a writ brought by one as sonne and heire to I. S. after imparlance the tenant cannot pleade to the writte that hee is bastarde or that hee is not heire but he may verie well pleade it in barre of the action o 22. E. 4. 35. and so outlawrie is a good plea in barre of an action of debt for by the outlawrie of the plaintife the debt if it growe by especialtie is vested in the Queene otherwise it is of an action of debt vpon a contract p 16. E. 4. 4. for in that case the debtor might wage his lawe against the debtee who is outlawed and as it seemeth by 10. Hen. 7. the outlawrie goeth rather in barre of the action then to the writte for there it is sayde that where a man cannot pleade to the writte but by shewing of a matter in barre there he may shewe it and conclude to the writte for in an action of debt a man may pleade outlawrie in the plaintife and conclude to the person and yet the matter goeth in barre and he may pleade it also in barre q 10. H. 7. 11. and conclude to the action and after that a voucher is counterpleaded and the tenant put to an other aunswere hee may notwithstanding plead that the demaundant is outlawed r 21. E. 4. 64. but after voucher the tenant may not plead to the fourme of the writte ſ 5. E. 3. 223. and 32. Hen. 6. is verie playne that where a man pleadeth that the plaintife is an alien borne or a villaine or an outlawed person it is left to his choise whether he will conclude these special matters to the writte or to the action t 32. H. 6. 27. and though the defendant haue made an attourney in a repleuin yet he may afterward alleadge that the plaintife is his villaine u 29. E. 3. 24. So 21. R. 2. in Assise brought by the husbande and wife against diuerse persons the tenantes sayde that the wife of the plaintife was entred into religion in the house of B. and there was a Nun professed demaunded iudgment if she should be aunswered and the Assise was adiorned into the common place and a writte was sent to the Bishoppe to certifie who certified that she was professed wherefore the defendants praied that the husband and wife might be barred foreuer and it was helde by the whole Court that forsomuch as the pea did stretche onely to disable the wife of the plaintife and if the husbande and wife had purchase iointly that the baron should notwithstanding the disablement haue an Assise of the whole but otherwise it is if the husbande and wife bring an Assise and a feoffement or release of the husbande or the wife or of some auncestour of one of them bee pleaded in barre both of them shall be barred therefore in this case it was helde that the iudgement ought not to be that the husbande should be barred but by the aduise of the whole Court it was awarded that the husbande and the wife nihil capiant per breue suum sed essent in misericordia x 21. R. 2. Judgem̄t 263. and in the thirde yeare of Henry the sixth it was held a good plea to say that the demandant was an alien borne in Portugall which is out of the Kings legeance with conclusion sil serra respondu a 3. H. 6. 11. and therefore Master Theloall in his Digest of writtes well obserueth that an exception taken to a writ propter defectum nationis vel potius defectum subiectionis vel ligeantiae is peremptorie and that the action can not bee reuiued by peace or league subsequent and that the King may graunt lycence to aliens to impleade and likewise that such aliens as come into the Realme by the Kinges licence and safe conduite may vse personall actions by writte though they bee not made denizens and that denizens lawfully made by the Kinges graunt and such aliens borne which are within the expresse wordes of the statute of 25. of Edward the thirde may vse actions reall by originalll writte b Thelo Digest de briefes lib. 1. ca. 6. And where a man is excommunicated and hee sueth an action reall or personall the tenant or defendant may pleade that the plaintife is excommunicated and hereof he ought to shewe the Bishoppes letters vnder his seale testifying the excommunication and then he may demaunde iudgement whether he ought to bee aunswered c Litt ' lib. 2. ca. 11. sect ' 42. but if the demaundant or plaintife cannot denie this the writ shal not abate but the iudgement shal be that the tenant or def shall go quite without day because when the demandāt or plaintife hath purchased letters of absolution and they are shewed forth to the Court he may haue a resummons or reattachement vpon his originall according to the nature of his writte d Litt ' ibid. and whereas you say that it behoueth the plaintife to be sure that he haue a good cause of action least he pay the costes that now by statute is made common Law for by the statute of 23. H. 5 The statute of 23. H. 8. of giuing damages to the defendant is cōpared with the rule of the ciuil Law 8. it is enacted that if any person or persons commence or sue in any Court of Recorde or elsewhere in any other Court any action bille or plaint of trespasse vpon the statute of King Richarde the seconde made in the fifthe yeare of his raigne for Entries into landes or tenements where no entrie is giuen by the Law or any action bill or plaint
Dy. 210. Nomomath Wee will proceed no further in this matter but will now passe to the title consequently ensuing The thirtenth Dialogue of Treason and Rebellion NOmomath Let me know Codicgnostes before we enter into particuler 1. Diuision inquirie of the thinges which are in themselfes and ipso facto treason what in auncient times other common weales hath bene taken to be treason how hath it bin punished for I thinke that will giue great light to matters subsequent because that which is past was the originall of that which is present and it is good in matters of Common weale to haue a diligent retrospect to the course of former ages 1. The reason is shewed by Codicgnostes wherfore treason is aptly tearmed a fault against the dignitie of man Codicgn It is true and first I will shew how aptly you haue tearmed this offence to bee a crime or fault against the dignitie of man for as nothing should more debase mans nature theÌ„ if against maÌ„ whom God hath made little inferiour to the Angels whom he hath crowned with glorie worship whom he hath made Lord of the workes of his hands and hath put all things vnder his feete a Psal 8. ver 6. 7. 8. 9. If I say against him the beastes of the fielde should rage and rebell as it happened in Roome when as a preamble of the fatall confusion of that Citie all the beastes subiecte and necessarie to mans vse namely dogges horses asses oxen c. would not suffer their Masters to touche them or come neare them without destruction and perill b Orosi lib. 5. Iuli ObsequeÌ„s in lib. de prodit D. Augustin lib. 3. de ciuitat dei c. 23. so surely when they who are in subiection to a Prince or monarche doe violently and mutinously breake the bonde of obedience and loyaltie and will doe as they list and thereupon rebell and trecherously conspire against the life of their Prince this is against the dignitie of man who being Lorde of brutishe creatures doth imitate them and becommeth as wilde and sauage and disobedient as they Now I will call to remembrance how this disloyaltie or trecherie in the highest degree hath in other ages receiued censure and punishment Traytors 2 The punishment of treasoÌ„ in auncienâ— times were alwaies loathed detested and sharpely punished of the Romanes and treason was accoÌ„pted farre more greeuous then paricide c Dionis Halicarnass tit 2. 8. somtime they were throwne headlong downe a rocke as Cassius sometime hanged as Lentulus and others of Catilines seditious societie or by some speciall kind of infamous death executed as Suetonius reporteth d Sueton in Neron c. 49. and they which conspired against Augustus when he was newly come to the Empire bore the smart of their treacherous designements and were seuerely punished for the imagination of that heinous mischiefe e Dio Nicae in August This Iustice of the heathens is iustified by diuine authoritie Non mittam manum meam in vnctum domini f 1. Reg. c. 24 Quare non timuisti mittere manum tuam vt occideres vnctum domini g 2. Reg. c. 1. for surely the maiestie of a Prince offended and hurt doth require a deepe reuenge and if Nemesis that is Reuenge it selfe doe take sharpe punishment of those which offer any violence to the person of an Embassador h Appianâ—in select representing a Prince or monarche with what extremitye of payne are they to bee tortured which imagin or goe about to compasse the death and downefall of their liege and dread soueraigne Wherefore worthily doth the excellent Lawier out of the Code applye these titles of Maiestie vnto kings Monarches Celeste oraculum diuinitas Eternitas Eternales vultus hh Alberâ—c Gentilis lib. 2. lection epistolar c. 14. Maiestie therefore which by some is said to be the daughter of honor reuereÌ„ce ought alwaies and in al things to be respected with honor reuerence Nomom Shew me I pray you what may properly 2. Diuision and iustly be termed treason by your lawes 1. The diuerse kindes of treason by the ciuil law Codicgn It is treason when any thing is sediciously attempted against the Prince or common weale Likewise to help the enemies of the king or common weale with munition money or couÌ„sail likewise to take any castles fortresses or holds against the king or common weale also to suffer him to goe out of prison who is accused of this fault and he that coineth or causeth false mony i l. 1. 2. 3. 4. ff ad l. Iul maiest l. quisquis C. eo C. de fals monet l. pen which may be committed diuerse waies I. WheÌ„ he coineth money which hath no authority to 2 The diuerse kinds of treason by coyning of money in the ciuil law coine k l. qui falsam l. qui nomine l. lege Cornelia testam ff ad leg Cor de fals because to coine or forme money ad regalia pertinet l C. vnico quae sunt regalia in vsib fâ—ud l. 2. §. de inde cum aeratium ff de origaur 2. When money is coined in an vnlawful disproportionable matter as when the diuers impressions of particuler coines of siluer and gold are stamped vpon copper brasse or tin or pewter m l. 1. in prin C. de fals monet l. quicuÌ„que nummos ff ad l. Corn de fals 3. When one that hath authority or licence to coine mony with a peculiar impression or character doth vse a strange and vnlawful stampe of his owne deuising n d. l. lege Cornelia testam in princ 4. When the lawful ordinarie weight of the coine is falsified altered by one that hath no authority to alter o c. quanto de iurâ— iur extra l. 1. de veteris numism potest C. li. 11. 5. To vtter or cause to be vttered false mony knowing 3 The punishments of traytors by the ciuil law it to be false p l. lege Cornel cauetur ff de fals In all which cases except the last the offenders doe suffer punishment of death some of them being burnt by fier r gloss in l. 2. C. de fals Moneta sup verb flammaruÌ„ in 3. solut ad argum l 1. other some being throwne to deuouring beasts Å¿ l quicunque cuÌ„ sequent ff ad leg Cor defal their goods be confiscated t l si quis in prine C. de fal mon but he which vttereth false coine is punished with seruing all his life time to them which dig in mines for mettal u ff de varijs extra or crim and the punishment of them that clippe mony is by our law capital a d. l. quicunque ff ad leg Cor de fals But he that coineth mony with the impression of a strange prince is not punished with a natural but with a ciuill
absolutely prohibited by the ciuill law to make any contract infants are disabled with a certaine qualification 4. That by the common law priors vnder the obedience of a soueraigne and which were datife and remouerable could not implead or be impleaded without their soueraigne vnlesse it were by speciall custome 5. The same law was of the Knights of S. Iohn of Ierusalem 6. The infants contract for his meate apparrell and necessaries is good if he be of the age of fourteene yeeres 7. That which the infant doth without actuall liuerie may be auoided by action with out entrie or seisure but that which he doth by actuall liuerie cannot be auoided without entrie or seisure The 2. Diuision 1. Whether the cōtract of the seruant shal be accounted in law the cōtract of the master 2. That according to the cōmon law the master shall be bound by the contract of a knowne seruant if the thing marchandised be come to his vse and he shal be bound by the contract of his factor though the goods neuer come to his possession 3. The act of a mans attorney or his generall receiuer doth not bind the master without speciall warrant The 3. Diuision 1. Whether the wifes contract made in the behalfe of the husband will binde the husband 2. That by the common law an action of debt brought vpon a contract made by the wife for the behoofe of the husband must be brought onely against the husband without naming the wife 3. That by the ciuill lawe the husband is in no sort to be charged by the contract of his wife The 4. Diuision 1. How contractes may stand or fall by their materiall causes o◠the defect of them The 5. Diuision 1. Some contracts are ordered by the lawe of nations 2. An Embassador may according to the Ciuill lawe be impleaded by the lawe of nations for a contract made whilest hee is Embassadour The 6. Diuision 1. Whether contracts made with Pirates or robbers in the high way be good in law 2. That Pirates and robbers are not to haue aduantage of lawe in matters of contract 3. That D. Hotoman erreth greatly in maintaining that pirates and robbers may lawfully contract The 7. Diuision 1. That by the Common lawe a consideration is the proper materiall cause of a contract and that it may be expressed or implied 2. That a contract is not good without money paid in hand or a certaine day limited for the paiment The 8. Diuision 1. Whether the defect of forme doe destroie the contract 2. That solemnitie and concurrence of circumstances is required in contractes by the Ciuill lawe 3. That matrimoniall contractes if there be no assumpsit in them ar to be deuided by the ecclesiasticall law if there be an assumpsit by the Common lawe The diuisions and principall contents of the second Dialogue of giftes and graunts The first Diuision 1. WHat things may be giuen or granted 1. That all things that lie in commerce and may be receiued may be giuen 3. That things ecclesiasticall though they be not consecrate cannot regularly be granted 4. That if an Abbott did alien landes giuen in Frankalmoigne to his house the donor might haue a writ contra formam collationis The 2. Diuision 1. The diuerse kindes of giftes some being free and some compensatorie 2. What is wrought by the Queenes grant ex mero motu 3. What is wrought by her Maiesties graunt by of informamur c. 4. Whether vpon a false considelation expressed an vse shal be raised in a common persons case 5. That a consideration may be auerred which is not repugnant to the vse expressed 6. That an vse may be altered by a consideration not valuable The 3. Diuision 1. In what cases graunts shall be taken most beneficially for the grauntee 2. That a graunt noncertaine must be taken most strongly against the grauntor 3. That a graunt may be good in part and for parcell not 4. How the Queenes graunts and licences shall be construed and interpreted 5. A graunt is not to be fauored contrarie to the manifest sense of the words The 4. Diuision 1. That by the Common lawe a graunt that is not good at the first may not be made good by matter ex post facto nor by the Ciuill lawe The 5. Diuision 1. Whether a tenaunt at will may graunt ouer his estate 2. That the estate of the tenaunt at will is in manner no estate The Diuisions and principall contentes of the third Dialogue of bargaines and sales The first Diuision 1. WHat things are forbidden to be solde 2. That by the Cannon law things consecrate and religious may not be solde 3. That poysons by the Ciuill law are forbidden to be solde 3. That there be some poysons which be medicinable and profitable and the prohibition extendeth not to these 5. That some poisons are medicinable alone some with the mixture of other things 6. What things are forbidden to be solde by the Common lawe The 2. Diuision 1. Where a thing was not solde at the first and where it was solde but the sale was defeasible vpon condition 2. A difference betwixt a perfit sale and a sale to be perfited vpon a condition performed 3. That a prouiso though it be placed amongest couenants may defeat a bargaine and sale 4. That where a bargaine and sale is perfit but defeasible vpon condition the vendee shal take the profits till the condition be performed The 3. Diuision 1. When no day is limited for the payment of a summe of money what time the law will require 2. In such case the partie charged with the payment shall by the ciuill lawe haue threescore daies 3. That by the common law when no day is limited the money is presently due yet in some cases by some authoritie the discretion of the Iudges is to limit a time 4. The definition of time according to the opinion of Aristotle The 4. Diuision 1. That a bargaine and sale may be auoyded by the defect of some substantiall thing belonging to the act 2. That fraud and deceit in the contract by the ciuill law doth defeate the contract 3. A difference where the default of the thing sold is Latens or Patens 4. That whether the default be Latens or Patens if the bargainor doe warrant the thing sold to be without fault he is bound by the warrantie by the ciuill law 5. That bargaines and sales matters in writing and obligatorie may be auoyded by alleaging that they were made or done per minas or by duresse 6. That by the common lawe a warrantie made vpon a bargaine and sale doth binde otherwise it is if the warrantie be made after the bargaine bee concluded 7. That the warranting of a thing which is euident to the sense is no cause to bring a writ of disceit by the common lawe The 5. Diuision 1. That by the common lawe the bargaine and sale or the grant of the profits of land is the grant of the
land it selfe 2. That by the ciuill lawe a man may grant and demise the vse of a thing and yet not grant the thing it selfe The 6. Diuision 1. When a man selleth land wherein treasure is hidden and the vendor knoweth not of it whether the vendee shall haue the treasure 2. How this word treasure is taken in the ciuill lawe 3. That by the ciuill law money and other things necessarie to the common vse of this life are forbidden to be hidden and buried in the ground 4. Plato his superstitious opinion of things hidden in the earth 5. How the ciuill lawe doth order and dispose of treasure 6. What the common lawe doth determine of treasure The diuisions and principall contents of the fourth Dialogue of seignories and seruices The first Diuision 1. THe description of a seignorie by the ciuill lawe 2. By the Canon law 3. Likewise by the common law The 2. Diuision 1. What homage is and how it is to be performed by the common law 2. That homage hath beene practised in ancient time The 3. Diuision 1. What a Manor is and whereof it consisteth 2. The originall of a Manor The 4. Diuision 1. Statutes made for the preseruation of seignories and Manors The 5. Diuision 1. Fealtie is the most generall seruice in the common law 2. In the ciuill law 3. That by the ciuill law the common law and the Canon law a religious man ought to do fealtie The 6. Diuision 1. The diuerse kinds of seruices in the ciuill law and their definitions 2. The diuers kinds of seruices in the common lawe and their definitions 3. The originall of villenage and the nature thereof 4. The tenure whereby a man holdeth of an honour or manor is described and by examples illustrated 5. Certaine honours which be not of the ancientnes of the Crowne 6. Some honours which be annexed to the Crowne The 7. Diuision 1. Whether one within age be compellable by lawe to doe all manner of seruice either by himselfe or some other 2. A diuersitie in the Ciuill lawe whether the father of such an infant died in a iust warre or at home in his bed 3. That by the Common lawe the infant shall be in warde if his father died seised of lande held by Knights seruice without anie such diuersitie 4. A diuersitie in the Common lawe where the heire of the tenaunt by Knightes seruice is within age and a Knight at the time of his fathers death and where not The 8. Diuision 1. What penalties lie vpon the tenaunt if he doe not his seruice 2. Many causes of the tenaunts forfeiture in the Ciuill law 3. Some causes of forfeiture by the Common lawe The 9. Diuision 1. Whether when the tenaunt hath committed felonie or treason and is attainted he shall suffer any preiudice in his tenauncie 2. A diuersitie in the Ciuill lawe where the offence is committed against the person of the lord and where against the person of a straunger 3. That by the Common lawe by the attainder of felonie or treason the bloud is corrupted and in the one case the land shal eschet to the King in the other to the immediate Lord. 4. The aforesaid determinations and conclusions of Ciuill and Common lawe touching the forfeiture of the offendorare examined by the law of God The Diuisions and Principall contents of the fifth Dialogue of iointenauncie and tenauncie in common The first Diuision 1. THat iointenaunts and tenauntes in common ought to haue equall profit 2. That by the Common lawe a writ of account will lie if one iointenaunt take all the profits The 2. Diuision 1. That iointenauncie is dissolued by death vnlesse there be some clause in the creation of the estate to the contrarie The 3. Diuision 1. That by the Ciuill lawe by the ioint gift of all the goods of a man all corporall things passe 2. That by the Common lawe if a man deuise the third part of his goods to his wife it shall so be rated as they were at the time of the death of the testator That the Queene may graunt a thing in action The 4. Diuision 1. That iointenauncie by the Ciuill lawe may be of all such things as lie in contract 2. That the limitation of tenauncie in common is by the partie but the construction of it by the lawe The 5. Diuision 1. That an assignee of a moitie in the Ciuill law is bound by the couenant of his grauntor 2. That by the Common lawe in such case the assignee is bound by the couenant The Diuisions and principall contents of the sixth Dialogue of exchaunges The first Diuision 1. THat by the Ciuill lawe contractes for a certaine price are not exchaunges 2. That by the Common lawe the word excambium must be vsed in the exchaunge 3. That the estates must be equall 4. That the things exchaunged must be in esse 5. That an exchaunge is good though one part of it doe inure by way of extinguishment The 2. Diuision 1. That the incumbents may not exchaunge their benefices by the Cannon lawe 2. That the Chapiter may warrant permutations sede vacante in such benefices wherein they haue interest or authoritie 3. That by the Common law ecclesiasticall persons their patrons and ordinaries ioining together cannot make anie good exchaunge of ecclesiasticall benefices 4. That the statute of mortmaine is most strict and pregnant in words The Diuisions and principall contents of the seuenth Dialogue of Deuises and Legacies The first Diuision 1. THe antiquitie of willes 2. Plato his exception against Solons law concerning willes 3. Solons lawe is maintained and defended against Plato The 2. Diuision 1. Such as be vncapable of inheritaunces and goods may not be deuisees heires or executors by the ciuill lawe 2. A difference in the ciuill law betwixt the making of a deuisee and the making of an executor 3. That by the Common lawe all persons to whom a grant may be made a deuise may be made vnlesse it otherwise happen in some fewe cases 4. That the deuisee must be a person capaple of the thing deuised 5. That by the common lawe the deuisee ought to be capable at the time of the death of the deuisor The 3. Diuision 1. That by the ciuill lawe all such things may be deuised as the testator hath in his owne right at the time of the deuise 2. The three degrees of a testament by the common lawe 3. A difference in the common lawe where a man deuiseth a thing whereof he is not seised particularly and by name and where not 4. That thinges which are not in esse at the time of the deuise made may be deuised 5. That the deuise of tenaunt for life or tenaunt in dower of the corne growing at the time of their death is good 6. That when the partie hath a certaine and lawfull interest in a thing â—e may lease it grant it or deuise it before the existence of it 7. That a deuise may