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
wiseman and hauing the whole administration of that estate committed to his handes did enact and establishe Lawes with such moderation and equitie that the greatest parte of the Lawe called the Lawes of the xij Tables that absolute president and worthy platforme of all Iustice to the full opening and cleare expouÌ„ding of which it might be wished that some very learned man would put to his painefull hand are said to be the fruite and issue of his deepe and peereles iudgement The Lacedemonian common weale was established by Lycurgus that famous lawmaker by whose profitable directions and ordinances that common weale did for the space of sixe hundred yeeres exceedingly florishe in equitie and glorie but when the neglect of these Lawes had entred and pearced into the body of that common weale and wantonnes licentiousnes and desire of monie had encroched into the place of these commodious orders they lost their renowme with their libertie and the deformitie of mens manners did wholy disfigure the bewtifull and decent proportion of that goodly Common weale Now I come by your fauour to the Romane estate that is to the miracle of miracles if any humane thing may beare so gorgious a title surpassing farre her predecessours in greatnes happines and continuance of time the cause of which rare felicitie is no other in truth then the prescript of good Lawes made by Numa and others howsoeuer some partially affected doe as their seuerall fansies led theÌ„ ascribe attribute the same to seueral causes whose censures opinioÌ„s giue me leaue by your patience and permission in humblenes and modestie to examine That saying of Cicero seemeth not true vnto me that militarie vertue hath purchased to the people of Rome credit and to the Citie eternall glory and hath made the whole world obedient to that Empyre d Cicer. pro Murenâ— Virtus militaris populo Romano nomen vrbi aeternam gloriaÌ„ peperit orbem terraruÌ„parere huic imperio coegit nor that of Lactantius accusing the Romanes of vniustice in these wordes Howe much profit differeth from iustice the people of Rome doe testifie who proclaiming warre by their heraults and doing iniurie in forme of lawe and alway desiring other mens goods altering the propertie by violence haue atchieued to themselues the possession of the whole world e Lactant. lib. 4. institutioÌ„ c. 9. Quantum a iustitia recedat vtilitas populus ipse Romanus docet qui per faeciles bella indicendo legitime iniurias infereÌ„do semperque aliena cupâ—endo rapiendo possessionem sibi totius orbis occupauit nor that of Liuie who is directly opposite to Lactantius The gods saith he fauour religion and loyaltie by which the Romanes ascended to such an height of estate f Liuius lib. 42. Fauent pietati fideique Dij per quae populus Romanus ad tantum fastigij venerit nor that of Dio vttered in the person of Caesar Our auncestors did make our Citie so great as now it is by hazarding exposing to daunger their owne wealth as if it had beene other mens goods but other Princes Dominions as belonging vnto them they did not doubt to seise g Dio lib. 38. Maiores nostri tantam vrbem nostraÌ„ fecerunt cum suas fortunas tanquam alienam possessionem semper periculis obiecerunt alioruÌ„ autem ditioneÌ„ tanquam pertinentem ad se haud cunctanter suam facerent nor that of Orosius The Citie of Rome like an vnsatiable belly did deuoure all and yet was alwaies hungrie For into her bosome all the wealth and treasure of other nations robbed and spoiled by the Romanes was conueyed and transported h Oroisius lib. lib 5. c 18. Quasi inexplebilis venter Roma cuncta consumens semper esuriens cum in sinus ipsius euersarum omniuÌ„ vrbium nudaturumque terrarum abrasae vndique opes cogerentur whereupon he further exclaymeth Looke how happily she ouercommeth so vnhappily other nations are vanquished and ouercommed the happines of this Citie is the vnhappines of the whole world O vnhappy world vnder this conquerour a subtile vnderminer abitter enemy a bloudy tyrant i Quam vincit illa foeliciter taÌ„ infaeliciter quidquid extra est vincitur faelicitas vrbis infoelicitas orbis Infoelicem sub isto victore orbem arguto insidiatore hoste infesto domin immiti Orosius lib. 5. c. 1. lib. 6. c. 12. though Arnobius a man of great sanctimony doe in like sort surmise that this onely Citie was bred for the destruction of all mankind k Ciuitatem vnam in humaÌ„i generis pernitiem natam Arnob. adu gen neither doe I like Claudian his straunge and paradoxicall opinion auouching patience to be the cause of the Romans prosperity Rome saith he neuer sunke vnder the burden of mishappe and no wound dismaied it after the great slaughter of Cannae and the daungerous warre of Trebia she did more lift vp her head when flames of warre did on each side beseige her and the enemies ramme menaced the wal she sent her army into the farthest and most remote parts of Spaine l Nunquam succubuit daÌ„nis territa nullo Vulnere post Cannas maior Trebiamque fremebat Et cum iam premereÌ„t flaÌ„mae muruÌ„que feriret Hostis in extrem acieÌ„ mittebat Iberos Claudi 3. stilie neither do I agree to Florus and Ammianus both agreeing in opinion The people of Rome saith Florius was tossed by many labours dangers so that vertue and fortune might seeme to haue contended for the procuring of her soueraintie m Populus Romanus laboribus periculisque iactatus est vt ad coÌ„stitueÌ„duÌ„ eius imperiuÌ„ coÌ„teÌ„disse virtus fortuna videreÌ„tur Flor. in proaem histor to whom Ammianus subscribeth saying vertue and fortune did herein iumpe n Ammian lib. 14. for the most part iarring but the aforesaid Claudian being at another time better aduised doth very fully truly describe the causes of the Romane prosperity Rome was the mother of military disciplin and lawes by these meanes dilated stretched her principalitie ouer al countries prescribed vnto theÌ„ their first laws orders o ArmoruÌ„ leguÌ„que pareÌ„s quae fuÌ„dit in omnes ImperiuÌ„ primique dedit cunabula iuris Claudi 3. stilie for the good gouernment n Virtus hic conuenit fortuna pleruÌ„que dissideÌ„tes of their Common-weale at home did make their warres to prosper abroade and the giuing of lawes to others made others at peace with them and to beare the yoake of more inclinable obedience and they which so obey find more good by the direction of lawes then the protection p. Quò arma vestra peâ—uenerunt còdem ius vestruÌ„ hinc profectum peruenâ—at of armes Wherefore the Rhodians did very wisely make suite to the Romanes for their lawes rather then for their garrisons Whether your weapons haue pearced there let your lawes arriue p Liuius lib. 37. but more
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
within yeares of discreâ—ion b l. 5. ff ad leg Falcid l. 12 de leg and the contract or couenant of such persons is not ratified by oath which by law are forbidden to contract c l. non dubiuÌ„ C. de legib as Monkes and Fryers and such like religious persons Canonologus Indeede such persons are said in our lawe to be mortui mundo dead to the world d 16. q. vltim c. si and they cannot liue without their Cloister no more then a fish without the water e 16. q. 1. plac and he can haue nothing priuate or proper to himselfe and therefore the rule of the Canon-law is Monachus habens aliquid de proprio sepeliri debet in sterquilinio f De sta mo c. 2. C. ad monaster Ca. 1. 2. de postula 16. q. 1. monach c. religios de procur in cler and he caÌ„ not be any mans aduocate in a cause or any mans proxie without the consent of his Abbot or Soueraigne and that must be to the vse and behoofe of his monasterie and the like law is of Friers h Cle. dud de sepul Cle. exâ—ri de parad de verbo sig Nomomathes But is there no differeÌ„ce in the Lawe betwixt the contracts of infants and the contracts of Monkes and Friers Codicgn Yes very great For Monkes and 3. Monkes are absolutely ê“hibited by the Ciuill lawe to make any coÌ„tract infants are disabled with a certaine qualification Friers are prohibited by Lawe to make any contract so that as I haue abouesaid their contract can not be good though it be coÌ„firmed by oath But infants are not ture prohibiti but inhabiles ex iuris dispositione and therfore their contracts may by oath be established i Authent sacramenta puberuÌ„ cum tota sua materia C. si aduer veÌ„dit in corpore vnde sumitur Anglonomoph As the former Lawes haue very greatly disabled Monkes and religious persons who are tied to a certaine rule so our Law hath very much diminished their ability as to their intermedling in secular matters In a Scire facias brought by a Prior against a parson out of a recouery had against his predecessor it was 4. That by the Common law Priors vnder the obedience of a Soueraigne and which weare datife and remoueable could not impleade or bee impleaded without their soueraigne vnlesse it were by speciall custome held that the defendant should not be estopped by the admittance of his predecessor in the first action to pleade in this Scire facias that the Priour was a Monke professed vnder the obedience c. and was datife and remoueable k 34. H. 6. 2. for though it haue beene helde that a Prior perpetuall may prescribe to implead and to be impleaded without his Soueraigne yet by common intent a Prior datife and remoueable at the will of the party shall haue no action by such vsage but if he wil haue any plea he must shew some special matter 39. E 3. 34. and it hath bene said that the knights of S. Iohn of Ierusalem had their possessions seuerall 5. The same Lawe was of the knights of S. Iohn of Ierusalem yet they could not vse an action without their Prior m 32. H. 6. 5 31. and a Prior which was presentable and had Couent and Common seale could not before the dissolution of Abbeys and Priories charge his house in perpetuum without the assent of the Patron and Ordinarie neyther could hee haue the Writte De aduocatione decimarum nor a iuris vtrum n 12. H. 4. Stath tit Charge and a writte was abated beyng brought against a Prioresse because the Prior of S. Iohnes was commaunder of the house whereof shee was Prioresse and because she was made Prioresse by him and was vnder his obedience and remoueable at his will notwithstanding that shee had Couent and Common seale and had her possessions seuerall and was wonte to Lease the lande for tearme of yeares o 12. R. 2. Nonabilitie 4. and if a contract bee made with an Abbotte and his Monke the writ that hath beene grouÌ„ded vpon this contract hath bene brought against the Abbot onely p 33. E. 3. Bâ—â— 913. 2. H. 4. 21. and so hath a writte of Detinue bene brought being coÌ„ceiued vpoÌ„ a deliuery of goods made to the Monke to the vse of the Abbot q Ibidem yet it hath bene thought that an action will lie against a Monke if he be not in subiection to some Soueraigne r 14. H. 4. 37. But it hath bene taken for a general learning with vs that Monkes Friers Canons professed the like could not grant any thing Å¿ 14. H. 8. 16. 2. R. 3. 5. 32. H. 6. 31. neither could they be grauÌ„tees of any thing t 5. H. 7. 25. 19. H. 6. 25. neither are they capable by way of deuise u Perk. tit Deuis sect 537 the coueÌ„t of an Abbey or Priorie can yeeld so little aduantage to the house in matter of purchase that if in former times land had beene giuen to an Abbot and to his couent this could not be good saue onely during the life of the Abbot for the want of this word successors a 11. H. 4. 84. â— Curi but touching the abilitie of infants in contractes and purchases the Lawe is diuerse according to the diuersitie of cases and if an infant do buy of any a coate or necessarie vestmeÌ„t for a certaine summe or if he make a couenant for his meate paying 12. d. a weeke according to M. Paston his opinion this couenant is void yea and if 6. The infants contract for his meate apparell and necessaries is good if he be of the age of fourtene yeres hee make a bonde for it the bonde likewise is void but Markeham thinketh the contrarie if the infant that is so bond be of the age of fourtene yeares b 21. H. 6. 31. 18. E. 4. 2. Perk. Grau 4. D. S. dial 2. fo 113. and by M. Brookes opinion this is the better Law c Br. Labourers 30. and if an infant lease land for tearme of yeares rendring a rent or doe sell a horse or 7. That which an infant doth without actual liuery may bee auoyded by action without entre oâ— seisure but that which he doth by actuall liuery can not be auoided without entre oâ— seisure any other thing he may chose to haue an action of dette for the rent reserued vpon the Lease or a writte of trespasse for the occupation of the lande and so he may haue an action of trespasse for the occupation of a thing sold by him and if an infant doe giue to one a horse without actuall deliuerie of the horse into his hands at the time of the gift and the donee taketh the Horse by reason of this gifte the infant may haue an action of Trespasse
not in such case to be named in the writte that is to be brought hereupon Å¿ 2. H. 4. 21. p. Markeham Codicgn By our Law no mans contract made 3. That by the Ciuill Law the husband is in no sorte to be charged by the contract of his wife in the behalfe of an other will binde the other but such a persons contract who may be bound for the other Å¿Å¿ C. ff de pact in congr tit Nomom You haue shewed vnto me aboundantly how contracts may stand good and how they may be infringed by reason of the persons which are parties or agents in the stipulation or contract and efficient causes thereof by reason of their ability or disability possitiuely set down in Law now I would haue you proceed to declare how by the materiall causes of contracts they may stand or fall Codicgn A contract hath a materiall substance 4. Diuision 1 How contractes may stand or fal by their material causes or the defect of theÌ„ whereof it is made as well as other thinges and the materiall cause of a contract is the thing for which wee doe contract for as in mechanicall and artificiall thinges there is required some apt matter t D. L. adeo §. cum quid whereof a thing may be wrought so in contracts and conuenants as well these which are determinable by the Law of nations as these which are sentenced by the Ciuil Law and other Lawes to the end they may be well perfited and v ff de verb. oblig l. inter Stipulant §. sacramÌ„et de praescripÌ„ verb. l. insula concluded some materiall cause is requisite u Nomom Why are any contractes ordered by 5. Diuision 1 Some contracts are ordered by the law of NatioÌ„s the Law of Nations Codicgn Yea for by that Law an Embassador may be impleaded for such contracts as he maketh during the time of his Embassage least as Iulianus 2 An Embassador may according to the Ciuil Law be impleaded by the Law of nations for a coÌ„tract made whilest he is Embassador sayeth hee presume to take other mens goods with him into his owne countrey a L. 25. D. de iud or as Paulus reasoneth plainely and pithily least men fearing to contract with them if they be not in this regarde subiect to Lawe they be excluded from all commerce and entercourse of bargaine b L. 24. de min. l. 11. ad Vell. l. 12. de adm tu and this Law is supported by that excellent rule of equitie that no man ought to growe ritcher by an other mans losse and if one that is no Embassador doe contract with one and after bee made an Embassador yet he is now chargeable with the contract likewise an action will lye against an Embassador by the Law of Nations if hee couenant to performe a thing when hee is Embassador if it so fall out that the charge and credit of Embassage be committed vnto him c L. 3. D. de lega African L. 2. p. 1. de iud Nomom I am verie desirous to knowe Codignostes 6. Diuision 1 Whether coÌ„tracts made with Pirats or robbers in the high way be good in Law whether contractes made with Pirats and with robbers by the high way are auaileable of force by the Ciuil law or the Law of nations Codig I doe not thinke that Pirates and robbers are to haue aduantage by any Lawe in matter of contract because they haue cast aside all care of humane societie and seeke to reduce the world as much as lieth in their power to the pristinate wildnes and sauagnes of nature when men did liue like beastes and as Lucretius sayeth d Lucret. li. 5. Quod praedae obtulerat fortuna cuique ferebat Sponte sua sibi quisque valere viuere doctus And such persons may not enioy the benefitte of 2 That Pirates and robbers are not to haue aduantage of law in matters of contract Law to which they are enemies e Paul l. 63. ad leg Falc To such men which haue withdrawne themselues from the communion and societie of men and as Florus e Flor. lib. 3. sayeth haue broken the league of mankind why shoulde the Lawe of nations which is nothing els but the communion and league of nations extende any fauour Pirates as Plinie saieth are enemies to all men liuing f Plini lib. 2. ca. 46. and therefore Cicero auoucheth that if thou doest not bring to robbers or Pirates the raunsome which thou hast promised for thy life there is neither offence nor fraudulent dealing in thee no though thou hast promised with an oathe g Cicer. pro leg Manil. 3. de offic Therefore some doe wonder that D. Hotoman dare affirme h Hotom 7. Illust question that the 3 That D. Hotoman erreth greatly in mainteining that Pirats robbers may lawfully contract Lawe of nations doth extende to fugitiues and robbers and his chiefe reason is because there is no Law which doth intredict and forbid to couenant or contract with them and such thinges in his opinion as are not verbally forbidden are implicatiuely permitted This reason is of no validitie for it may be implicatiuely forbidden and in that they may be enemies to all men and doe spare no man they ought not to protect themselues by the Lawe of nations which is the Law of al men The question is not what may be done vnto them or how many men haue dealt with them but howe by rule of equitie and soundnes of reason they ought to be dealt with For to dispute of Lawe is to dispute of a publike bond whereby we are bound and obliged but we are not bound to such lawles disorderly and incorrigible persons by any common respecte of duetie Nomom I will not trouble you farther Codicg 7. Diuision with more ample discourse of this matter but wil rest wel apaied with that which you haue already spoken Now I loÌ„g to here somwhat of Anglono touching the matteriall causes of contracts Anglonomo A consideration which is the proper 1 That by the common Law a consideration â—s the proper materâ—al cause of a contract and that it may be expressed or implyed material cause of a coÌ„tract may in the concluding of bargains be either expressed or implied expressed as if I buy a horse of you for xx s. you may keepe the horse til I haue paied you the mony i 10. E. 4. 18. and M. Choke is of opinion that if you buy of one a horse in Smithfield for a certaine summe of money and doe not pay him the money presently hee may sell the horse to any other incontinent and you can not haue any remedy against him for otherwise hee might bee compelled to keepe his horse for euer against his will k 17. E. 4. 1. per Choke For it is implyed in the bargaine that the vendee must pay the money incontinent otherwise he cannot
retractetur l. ea quae §. quaed ff de cōtrahen emp. but if it bee a secrete fault then a distinction must be vsed for eyther it was in beginning and growing at the time of the sale so that it may easily be cured and yet not easily perceiued then the seller is not any way to be charged or els the secrete fault was some festered and inueterate disease and in such case the seller is to be charged n L. mortis C. de per com rei vend but if the thing that is sold be liquide and gustable and the buyer doth taste of it or if it be measurable and hee doth measure it as corne or if it be ponderable and he doth wey it as mettall or if he marke a beast which hee hath bought and the beast be afterward chaunged in all these cases the dammage resteth vpon 4. That whether the fault be Latens or Patens if the bargainor do warrant the thing sold to be without fault hee is bound by the warranty by the Ciuill law the buyer o L. 1. l. q◠si neque §. si ff de per com rei vend l. 2. C. eo but if the things aforesaid be not tasted measured weyed or marked but be sold at a venture as if a man sell all his wine or oyle in such a house and doth warrant it to be good and merchantable or if he warrant the beasts that he selleth to be sound the seller in such cases is punishable p l. si vna ff de per com rei vend but if he had not warrāted it then the lawe is otherwise q d. l. 1. §. 1. C. eo l. quod saepe §. in his ff eo Anglonomoph In these cases which you haue now put our Lawe as I take it differeth very little or nothing from yours for whereas you 5. That bargaines sales matters in writing and obligatory may be auoyded by alleaging that they were made or done per menasse or by duresse say that a bargaine or sale enforced by terror may be auoyded in our Lawe euen matters in writing obligatory may be for the same cause defeated and frustrated and if a man seised of an acre of lande doe giue it in taile by deed and maketh a letter of Attourney to deliuer seisin and al this is done by duresse of imprisonment and liuerie of seisin is made this is a disseisin to the donor and the deed of gift and liuerie may by Law be auoided r 41. E. 3. 9. 2. E. 4. 19. per Littl. Park tit Graunts Sect. 17. and if a man menasse me to kill me if I wil not grant to him an annuitie of xx s. for doubt of death I grant it vnto him this graunt is voidable ſ 11. R. 2. Duresse 13. But if a man grant an annuitie to an other by threatning him that he wil cary away his goods whereupō he granteth vnto him the annuitie this grāt is not voidable by reason of such menacing because he may haue an actiō to recouer the goods if they be takē away t 7. E. 4. 21. Park tit Grāts Sect. 18. but a threatning of battery is a good cause to auoid a deed u 4. E. 2. Duresse 9. and so is the threatning of imprisonment a good cause to auoid a bonde x 8. H. 6. 12. but otherwise it is of a threatning to burne my house a 39. H. 6. 51. and a duresse or menacing at one place shall auoid an obligation made at an other place b 38. H. 6. 13. ◠Moyle 33. H. 6 24. 2. H. 5. 10. as to that which you haue spoken of fraud deceite in bargaines and sales the warranting of a thing to be good and sound which is nought corrupt I could put many cases agreing with your assertiōs diuersities 6. That by the Common law a warrantie made vpō the concluding of a bargaine and sale doth binde otherwise it is if the warrantie be made after the bargaine concluded If a mā sell vnto one certaine cloth warrant it to be of such a length and it is not of that lēgth he which buieth the cloth may haue an actiō of disceit against him by vertue of the warrātie but if the warrantie be made at some other time after the bargain he may not haue a writ of disceite c Fitzh N. B. 98. K. if a ma sell to an other seeds warrant thē to be of a certaine coūtrie if they be not so a writ of disceit will lie otherwise it had bin if he had warrāted that they should haue growne or if he should warrant that the horse which he selleth should go 50. miles in a day and a writ of deceite lieth for selling corrupt victuale without warrātie but not for selling rottē sheepe though it be with warrātie the warrāting of a thing to 7. That the warranting of a thing which is euident to the sense is no cause to bring a writte of disceite by the Common law be black which is blew where the colours is euident to sense is no cause of bringing a writ of disceit but is merely void otherwise it is if the buyer be blind or the thing that is bought be absēt d 11. E. 4. 7. 13. H. 4. 1. if a man sell a horse which hath a disease in his body or if he sel certain quarters of corne which is ful of grauel a writ of disceite will lie without warrātie e 20. H. 6. 36. ◠Paston 11. H. 6. 22. if one sell to an other certaine tūnes of wine warrāt thē to be good they be corrupt the vendee may haue an actiō vpō the case against the vendor f Fitz. N. B. 94. the actiō wil lie without warrātie g 7. H. 4. 14. according to the opiniō of some but M. Fitz. saith that there ought to be a warrātie or els no actiō will lie for in such case his taste may be his iudge h Fitz. N. B. 94. C. but where it is with warrātie the writte must say that the defend at the time of the warrantie made knew that the wine which he sold was corrupted i 9. H. 6. 53. Nomom You haue spokē enough of this matter 5. Diuision now shew me whether by a bargain sale of of the profites of land the land it selfe do passe Anglono The grant or bargaine sale of the 1. That by the Common law the graunt or sale of the profits of land is the grant of the lād it self profits of the land is the grant of the lād it self k 45. Ed. 3. Grants 90. 4. Eliz. 219. Dy. if a mā do lease to one an acre of lād for life reseruing to himselfe the herbage this reseruation is void for he hath reserued the same thing in substance l 38. H. 6.
34. because the profites of land the land it self are one the selfe same thing in substance m 10. H. 7. 9. 6. â— 6. 71. Dy. but he may lease his Parke excepting the wood vnderwood his maÌ„nor reseruing the warren but the soile of the wood and warren shall goe to the lessee n 14. H. 8. 1. 33. H. 8. Br. Reseruat 39. Codicgn By our Lawe a man may grant and 2. That by the Ciuill law a man may graÌ„t and demise the vse of a thing and yet not grant the thing it selfe demise the vse of a thing and yet not graunt the thing it selfe Suppose a man graunt vnto mee his mare for a certaine time I may during the time vse the mare at my pleasure but I may not lend her or set her ouer to some other to vse neither caÌ„ I haue the fole which coÌ„meth of her for by the graunt I may claime vsum onely but not vsumfructum and so hee to whom the vse of a mans ground is granted may take the profites of the ground to his owne vse but may not sell theÌ„ to others o Gâ—â—atup in vocabular verbo vti frui Nomom I would gladly know when a man 6. Diuision 1. When a maÌ„ selleth land in which treasure is hidde and the vendor knoweth not of it whether shall the vendee haue the treasure 2. How this word treasure is taken in the Ciuill lawe selleth his land in which there is treasure hidde whether the vendee shall haue the treasure because the vendor knew not of it at the time of the sale Codign It may bee you take the worde Treasure generally not properly as it is vsed strictly in our Lawe for if a man do hide any thing in the grouÌ„d for gaine or through feare or to keep it more safely within time of memorie this may not properly haue the name of treasure p l. nunquam D. de acquir rer domin for a treasure properly is when money or things of good value haue lyen from time out of minde hidden in the ground so that no man now hath propertie in it q d. l. nunquaÌ„ It hath bene forbidden by many 3. That by the Ciuil law money and other things necessary to the commoÌ„ vse of this life are forbidden to be hidden buried in the ground lawes that money may not be buried r l. 4. D. ad leg Iul pecul and these Lawes haue reason for them for it is against the s Aristot Nicomach 5. nature of monie that it should be buried being inuented for the daily and common vse of men and the same may be affirmed of other thinges which are hidden t L. 5. l. â— D. de vsufr ca. re que vs coâ— and these prohibitory lawes are fortified with this penaltie that things so hidden shall be forfeited to the Treasurie Plato had 4. Plato his superstitious opinion of thinges hidden in the earth such a scrupulous or rather such a superstitious conscience that he made by his lawes treasures to be immobâ—les Dijs inferis sacros and his precept is straunge in this case Quae minime deposuisti ne tollito u Plat. lib. 11. de legi Adrianus Caesar made a law as Spartianus reproteth that if any man had found treasure in his owne ground himselfe should haue it if in an other mans he should giue the halfe to the owner of the soyle if in a publique place he should deuide it equally with the treasurie This law was abrogated by other lawes following and reuiued by Iustinian but nowe 5. How the Ciuil law doth order and dispose of treasure and long time agoe our law hath transferred it to the Prince in whose Realme it is found x L. 3. §. Nerati D. de acquir posses Alberic Gentilis Disputati Decad. 1. c. 10. So that I cannot possibly see how the vendee in your case proposed shall by our law haue it Auglonomoph Nor by our law which saith Quod the saurus competit domino regi non domino libertatis si non sit per verba specialia aut per praescriptionem y Fitz. Coro 281. 436. And in this case though he selle 6. What the Common law doth determine of treasure vnto him the profit de terra yet he doth not sell vnto him the profits in terra which treasures are z Plowd coâ—en le informa pur mines Nomom I will content my selfe with this difference which you haue put and will now proceede according to the platforme of our forementioned order to learne something of seignories and seruices The fourth Dialogue of Seignories and seruices NOmomathes Because things are better 1. Diuision and more certainly knowne by the definition of them therefore I pray you let me first haue of you some definition or description of a seignorie Codicgn A seignorie which we call feudum 1. The description of a seignorie by the Ciuill law may be thus described A bountifull granting of land for doing homage or some other speciall seruice a Glo. in vsi feu tit quib mod feod acquir in princip c. vnico §. in primis tit in quib caus feud amit de feud dat mi. valuas ca. vnico melius tit de feud dat in vicem leg coÌ„missor reprob cap vnic Anglonomoph A seignorie with vs is nothing 2. Likewise by the Common law else but a relation of delitie betwixt the tenant and the Lord. Canonolog In our Canon law it is shortly desined 3. By the Canon law The granting of land for homage b C. ex diligenti de simon Nomomath Shew me I pray you how homage 2. Diuision and other seruices had their first existence and beginning but first shew me what homage is Anglonomoph Homage is thus performed The 1. What homage is and how it is to be performed by the Common law tenant that is to doe homage must haue his head discouered and his Lord sitting he must kneele before him vpon both his knees and shall hold forth both his hands betweene the hands of his Lord and shall say as followeth I become your man from this time forward of life and member and earthly honour and to you shall be faithfull and loyall and shall beare vnto you faith for the tenements which I claime to hold of you sauing the faith which I beare to our Lord the King which being done the Lord sitting shall kisse him c Littlet lib. 2. c. 1. Nomom Hath this ceremonie beene auncient Codicgn The kneeling and giuing of a kisse 2. That Homage hath bene practised in auncient times at the doing of such seruice is very auncient for Tiridates the King of Armenia did kneele down before Nero the Emperor whom Nero lifted vp and gaue him a kisse d Tranquil in Neron And longe before his time Alexander the great did imbrace and
religious man ought to doe fealtie tenaÌ„t ought to do such seruice yea though he be a religious man and professed vnder rule p ca. vnico tit de natura feudi Et tit qualiter vassall iur deb sideli domi Et in ca. vnico tit quib mod feud amittatur Et in quib causis feudum amitt tit quae â—uit pri causa benef amit Canonolog But such a religious man may not say Ego deuenio homo vester nor humiliate himself to execute the rite of homage q C. venieÌ„s C. ex diligenti de Simon grauem de excess praelat cap. fin de re Iud Anglonomo By our Law he may do homage but may not say to his Lord ego deuenio homo vester because he hath professed himself to be onely God his man but he may say I doe vnto you homage and to you shal be faithfull and loyall r Littlet lib. 2. c. 1. Sect. 2. Nonoma Shewe me I pray you some speciall 6. Diuision kinds of these seruices that I may know them morefully and more distinctly Codicgn Seruices are diuersified according 1. The diuerse kindes of seruices in the ciuill Law and their definitions to the qualities of the persons to whom they are to be done if it be to bee done to an Emperour it is to be tearmed an Imperiall seruice if to a King a regall seruice Å¿ Cap. 1. de feud march ducatâ— in ca. 1. quis dicat dux comes marchio if to Religious persons Ecclesiasticall if to Lay men secular t Tit. de his qui feud dar pos tit Episcop vel Abbat but when it is to bee done to a lesser estate then to an Emperour or King as to a Duke Marquesse or Earle then it is called feudum honoratum sometime land is giuen by inferior persons meaner men without expressing any seruice and theÌ„ the Law intendeth that fealty onely is to be done this is called FrancuÌ„ or LiberuÌ„ u Ca. 1. de no. form fidel sometime it is giuen with reseruation of speciall seruice that is feudum non nobile a Ca. fâ— de capilan qui cur vendid somtime it is giueÌ„ in perpetuuÌ„ sometime but for tearme of life and then it is called Perpetuum vel temporale b De feud march in prin de alien feud in fine de feud guard castald But though by the oath of fealtie the vassalle be bound to serue his Lord in warre yet this is limited to such case where the warre is not notoriously vniust or vnlawfull for if it be otherwise though hee doe him no seruice in warre yet he shall not forfeite his tenement c In cap Domino guerram in prin in tit hic sini lex deinde c. neither is he bound to do his seruice to his Lord if his Lorde bee excommunicate or bannished vntill he haue obteined absolution or a recalling from bannishment but d D. cap. Domino guerraÌ„ in sin in a iust warre the vassalle is bound to helpe his Lorde against euery other person who is not the Lorde of the vassalle yea euen against his father brother or sonne Anglonomoph Seruices in our Law are of diuerse 2. The diuerse kindes of seruices in the Common law and their definitions sorts some being more noble and some lesse noble of these which are more noble some belong to the king and some both to the king to subiects of these that belong to the king some be domestical only as Petite Sergeancie some bellicall onely as Knights seruice in Capite some both domesticall bellicall as grand sergeancie some of the more noble seruices belong vnto subiects as well as to the king as knights seruice and homage these which be lesse noble may be diuided into two braÌ„ches for either they are ingenuous or seruile the ingenuous are of two sorts either performable by particular men or a certaine people as fealtie rent seruice the like which make socage tenure or els performable by a certaine people onely as burgage the seruile or base seruice is villenage Of all these seruices saue such only as haue bin before described I will speake somewhat seuerally briefly and in order Petite Sergeancie is where a man holdeth his land of the King paying yerely vnto him a Bow or a speare or a dagger or a launce or a spurre of golde c. e Littlet lib. 2. ca. 9. sect ' 1. Knights seruice in Capite is where a man holdeth his landes or tenements of the king as of his crowne immediatly ab antiquo by doing some warlike seruice Graund sergeancie is where a man holdeth his lands or tenements of the king as of his Crowne immediatly by doing some speciall seruice to the King in person as by carying his banner or launce or by being his marshall or sewer or caruer or butler c. f Litt ' li. 2. ca. 8. sect ' 1. 23. H. 3. Gard 148 of homage and fealtie hath beene spoken before Rent seruice is where the tenant holdeth his lande of his Lorde by a certaine rent for which if it be behinde at the day wherein it ought to be paied the Lord may distreigne for it of common right Burgage is where the tenants of an auncient borough doe holde landes within the Borough of the King or some other person as of his borough by a certaine rent g Litt ' lib. 2. c. 10. sect ' 1. 2. Villenage is where a man holdeth of his Lorde either by doing vnto him some partiticuler base seruice and such a one is called a tenant by villenage or by doing generally whatsoeuer base seruice his Lorde will commaund and impose vpon him such a tenant he is tearmed in our Law a villaine h Litt. lib. 2. c 11. sect ' 1. 2 This miserable estate of villenage had his beginning soone after the diluge and now by the consent of all nations it is ratified for the West Indians though they haue 3 The original of villenage and the nature thereof no knowledge of diuine or humane Lawes yet bondmen they haue and the Mahometistes make Christians their bondeslaues the Portugallians make villaines of the Mahometistes which they sell by companies as flockes of sheepe in the market i Bodin lib. 1. de repub c. 5. The Romains had power by their law to sel or kil their villains k Tacit. li. 14. but for mittigation of cruelty the Law Petronia was made whereby it was forbidden that none should put his villaine to death without cause which law was executed by Nero l Senec. lib. 3. de benefic after by Adrianus m Sparcian in Adrian but our law a more concionable fauorer of life hath restrained the hands of the Lord from the bloudshed of his villaine and from the mayming of him n Litâ— ' lib. 2. c. 11. sect ' 32. hauing regard to
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
6. 1. p Newt Nomomath Whether ought he to whom the 3. Diuision goods be deliuered make them good if they be stolne and embeasilde from him or by some other mischance doe perishe Codicgn He is not to be charged if the goods 1 That the bailie is not to be charged with the losse of the goods which happeneth merely by casualty be lost by any casualtie but onely in such case where there is default deceipt and couin or apparant negligence in him x l. quod Nerua Iaco But in l. in re mandata C. Mandati Iustit quib mod re contra oblig §. penult Anglonomoph If a man deliuer to me his goods to keepe and I put them amongest mine owne they be embesiled I shal not be charged for the goods y 29. Ass pl. 28 and if a man be bounde to bring mee a summe of money and he is robbed of it by the way he shall be by Law excused z 40. E. 3. 6. But 9. E. 4. he shall not be excused vnlesse he vndertake to keepe it and to bring it as he wil his owne goods and then he may pleade this in discharge of accompt before auditors but not in barre of Accompt so that it appeareth by this Booke that if he vndertake generally to bring the goods he must bring them at his perill But 3. H. 7. is that if a 9. E. 4. 40. the Baily be robbed of the goods he shall not be further charged but if the goods be taken away by a trespassor whom the Baily doth know he shal be charged ouer to his Bailor because he may haue an action against the trespassor b 3. H. 7. 4. But 20. E. 4. it is said that if I. S. deliuer goods to one to keepe and a straunger taketh them out of his possession I. S. may haue an action against him or against his Bailie c 20. E. 4. 11. but in that case if the goods be stolne from the Bailie in the endictment of the felon the wordes must bee bona I. S. in custodia talis d 7. E. 4. 14. Lamb. Eirenar 494. 495. The tenth Dialogue of the forme of ordinarie proceeding in matters of Law NOmomat It remaineth Codicgn that 1. Diuision ye should now speak of the forme and manner of ordinarie proceeding in matters of Lawe which because it dependeth wholy vpon the practise and custome of Courts in which I haue imployed no great trauaile nor obseruance I must therefore request you to stretche your sinewes in this regarde and not onely to argue but open things vnto me and be not angrie with me if in the handeling of these matters I bring ye from the hil that is your high and intricate pointes to the valley or plaine that is to matters more plaine and easie and againe from the valley to the hill when I finde in my selfe strengthe of vnderstandinge to ascende First I pray you shew vnto me what is to bee done at the commencement or beginning of a suit or action Codicgn Because in euery controuersie of law 1 The things which are to be obserued of the plaintife at the beginning of a suit by the Ciuil law there must be a plaintife and a defendant it is not amisse nor impertinent to mention such thinges as ought to be obserued regarded of the plaintife when he draweth any man into suit and they are three in number the one concerning profit the other necessitie and the third vrbanitie It is a point of profit or warinesse for the plaintife before he commence suit against any to be well aduised and assured whether himselfe be a lawfull person to stande in iudgement and to demaunde that which he bringeth into question a l. 1. C. qui legit person standi in iud hab he ought likewise to be sure that he haue a good cause of controuersie or els in some cases hee must be adiudged to pay the costes to the defendant in other some he must beare the losse of the charges of the suit b l. eum quem temere ff de iudicijs likewise he ought to beware least he draw the defendant before an incompetent Iudge 2. It is a point of necessitie that the partie whom the plaintife sueth be cited or summoned before for against the partie not summoned nor heard nothing can bee determined c l. de vnoquo que ff de re iud c. 1. exc de caus poss ê“prietat Citation as we say is parcell or the 2 Citation is proued to be of the substaÌ„ce of the proceeding contrary to the opinion of some ciuilians Lawe of nature d Clem pastoralis de re iud therefore of necessitie the partie defendant must be summoned because in euerie action the iudgement hath a retrospect to the originall and to the summons and as we say in plaine tearmes to that part of the action which is de in ius vocando e Ext. de procurat C. in nostra in sin l. prolatam C. de sent interloq om iud otherwise the iudgemeÌ„t is erronious f Iusti de offic iud in princ in §. omnem in authen delitigios Gloss in cap prudentia §. 1. de offic de leg because Citation is of the substance of the proceeding for that is the beginning of the suit howsoeuer some holde opinion that the suit is not begun ante litis contestationem g d. authen de litigios §. si vero a preside l. apertisaimi C. de Iudic before the appearance of the party def and the libel exhibited in Court notice taken thereof by the def by by some responsory act because say they post litis contestationeÌ„ non potest forum declinari h ff de iudic l. 1. 2. C. de litis Contest the iurisdiction cannot be auoided after the apparaÌ„ce the exhibiting of the libel any kind of aunswere applied but others hold in my opinioÌ„ more agreable to the truth that it is one of the fundamentall beginnings of the suit and one of the essentiall and formall parts of the iudgement because the omitting of it doth frustrate the iudgement i l. de vno quoque ff de re iud in c. 1. de caus poss ê“prietat extra 3. The other point is a matter of ciuilitie or curtesie because humanitie doth require that before any man doe contende in suite and doe prepare and addresse himselfe ad experiendum summum ius that hee friendly and mildely doe admonishe him with whom he is to deale of his duetie that if by faire meanes he may be wonne the rigor of Law may not be exercised m l. quid vberius ff de seruitut vrban praed l. debitores C. de pign Anglonomoph These cautels which your Law 3 The cautch to be obserued at the commoÌ„ law in the coÌ„mencement of an action prescribeth to
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
and A. the wife of T. by diuerse praecipes in the summons A. was omitted wherefore the writte abated a 2. E. 3. 39. 8. E. 3. 44. 10. E. 3. 532. 27. H. 6 6 likewise in a writ of dower by seuerall praecipes the name of one of the tenants was omitted in the clause inde queritur and in the summons whereupon the writte was abated b 12. E. 3. Brief 671. furthermore if a man recouer in a writ of waste by the default of the defendant where hee was not summoned hee may haue a 9. That by the default of lawfull summons the proceeding of the plaintife is frustrated by the Common law writ of disceit c 19. E. 3. Disceit 3. 20. E. 3. Disceit 5. 29. E. 3. 54. 48. E. 3. 19. 19. E. 2. Disceit 56. 17. E. 3. 58. Fitzh N. B. 98. b. 105. a. in this writ of disceit if there weare two summoners returned vpon the writ in which the summons failed if the Sheriffe do returne one of the summoners dead yet the other summoner shall be examined and if it be found that he did not summon the partie he shal be restored to his land d 8. E. 3. Disceit 7. 1. E. 2. Disceit 48. but if the summons be returned to be made by foure men whereas in truth they did not execute the summons of the writ as long as two of them liue the tenant who lost in the writ may haue a writ of disceit e Fitzh N. B. 98. D. but if three of thē die a writ of disceit may not be brought f 35. H. 6. 46. but an action vpon the case g 1. H. 6. 1. in a Praecipe quod reddat against the husband and the wife if at the grand Cape the husband appeare in person and the wife appeareth by Attorney who hath a warrant of Attorney which is not sufficient therefore iudgement is giuen vpon the wifes default against the husband and wife yet they may haue a writ of disceit if they were not summoned h 18. E. 2. Disceit 54. 55. Fitzh N. B. 99. B. and how necessarie a summons is may appeare verie plainly by the booke of 7. H. 6. where in a Formedon they were at issue and the tenant at the Nisi prius made default the demandant shewed how hee was in prison in the warde of the Marshall and praied that they would sende for him to appeare otherwise hee would saue his default afterward by imprisonment wherefore the Court sent for him and he came i 7. H. 6. 38. Nomomath Yee haue spent a great deale of 2. Diuision time in treating of the commencement or beginning of a suit or action yet I desire to haue some further knowledge of the nature of a citation or summons therefore resolue mee when a man is summoned to appeare within two or three daies after such a returne whether shall the second or third daie be accompted in the citation so that then he that is cited may well enough appeare when as in the one case one daie is past so that he doth not appeare within the two daies appearing first in the morning of the second daie in the other case two daies be past so that he appearing the third daie doth not appeare within the three daies so that if he will saue his default me thinketh he should appeare the first day of al. Codicgn This question is easily resolued for if 1. That by the Ciuill law if a man be boūd to appeare within tenne daies the tēth day is taken inclusiue he appeare within the two daies or three daies it is clearely sufficient because the last daie that is put in the citation doth implie that he may differre his appearaunce vnto the last daie k ff de verb. oblig l. qui ante Calendas l. eum qui ita ff eod and though an appeale be to be brought within 10. daies after the iudgement yet the last daie is taken inclusiue and not exclusiue l ff de success edict l. 1. §. dicimus and if time be giuen to one either by the partie or by Lawe that he may paie so much monie within or doe or propound anything de iure suo within 10. daies or from hence vntill 10. daies he may paie do or propound the 10. daie without any preiudice or surcease of time m Instit de verb. oblig §. si in diem Anglonomo If a man be bound to paie monie in festo sanctae Trinitatis if he tender the monie in the vigil of the feast it is not good nor in the octaues but the tender must be made the very daie of the feast but if the paimēt had bin limited on this side the feast or before the feast then it may well be made in the vigill of the feast n 21. E. 4. 52. and these words ab octabis sanctae Trinitatis must be intēded à 4. die octabis Trinitatis thereupon M. Brooke noteth that to this intent the first daie and the 2. That the first day and the fourth day of appearance are all one at the Common law fourth daie al the daies meane are but one day in law o 21. E 4. 43. Br. Iour iours en court 57. therfore if after the day of the returne of the writ of Capias and before the fourth day which is ful tearme the Sheriffe doth arrest a mā this arrest is not iustifiable because the first day and the fourth day be all one daie p 33. H. 6. 42. Nomom I would not haue you to insist longer 3. Diuision vpon this matter but now shewe vnto mee how causes are opened declared disclosed in your Courts and how faults and wrongs are manifested to the iudges Anglonomoph Al wrōgs offences are either 1. A diuersitie of opening prosecuting of priuate and publike offences at the Cōmon law priuate or publique priuate offences which are done by one mā to the hurt of an other are made knowne to the Court remedied by originall writte bil or plaint publique offences which are committed by the partie against the Queene and Commonweale are opened punished by way of enditement and information which is put in practise by common informers Nomom The māner of such informing seemeth 2. Exceptiō is taken to informations vsed by common informers to me to be a very harde course of Iustice for by that meane lewde persons are animated to terrifie impeach poore simple men and to bring them into danger for what mischiefe will they not do when a reward is proposed vnto them Codicg It is true our law doth generally disallow such proceeding therfore the name of a delator or informer is in our law accompted dishonest q L. 3. C. de Iniur and therefore it saith expresly Delatores 3. Many obiections are made out of the Ciuill lawe against common informers
statuts is to foreit incurre for by reward the spirits of a maÌ„ are stirred vp quickned without it they linger languish consume away why is reward due vnto such men The causes and reasons be many without informatioÌ„ there wil be hardly any punishmeÌ„t inflicted vpoÌ„ manie offendors sithence nothing is more acceptable to God or beneficiall to the common weale then that offendors should receiue their proper coÌ„digne punishment all lawful meanes must be assaied to atteine to this effect and what doth restraine men more froÌ„ coÌ„mitting offences theÌ„n a continuall feare of the informers eie to be cast vpon theÌ„ or his eares to be opeÌ„ for the harkning out of their offences wherfore as the HuÌ„tsmaÌ„ doth bestow vpoÌ„ his dogs some part of these beasts which he taketh killeth in hunting that by such inticements they may bee afterwarde drawne to pursue there praie fiercely eagerly so it behoueth a lawmaker diligently to hunt out the domestical lions wolfes and to allow some reward to the hounds of the Common weale which informers are b Plutar. in Lucul Conanus the king of Scots did make a law that in euery great Church there should be a cheste hauing some holes in the top into which the informers might put in at pleasure their seuerall billes of information wherein the fault committed the place the time the witnesses and the parties accused weare conteined then the Magistrate openeth the cheste bringeth the matter into question and the guiltie person being condemned the halfe parte of the goods forfeited goeth to the informer which lawe is now put in practise by them of Millaine c Bodin li. 4. de repub c. 6. Nomomath You haue spoken enough of this 4. Diuision matter Anglonomoph I desire greatlie to know whether if a man doe alleage some impediment happened by the acte of God whereby he could not appeare this be a sufficient excuse of his default in Law Codicgn Processe of conteÌ„pt which we cal literas Defaults are dispensed with all by the Ciuill and Common law wheÌ„ they happen by the acte of God coÌ„tumaciales are neuer addressed against such as be hindred by ineuitable accident as namely wheÌ„ the place where the court is held is besieged of enemies or wheÌ„ the plague is hote in that place for citatus ad locuÌ„ non tutum non arctatur coÌ„parere d De appell extra C. ex parte in Clem. Pastoralis ibi glos sup verbo Notorum de re iudicat so it is if through great snow or inundation of water the waies passages be stopped and shut vp in these and the like cases the Law doth dispense with defaults and therefore the matter of delaies is for the most parte committed arbitrio iudicis e L. 2. ff de re iudicata who may take certaine notice of these things Anglonomo It is a receiued opinion with vs that infirmitie or the fall of a maÌ„ from his horse whilest he was in his iourney though the partie be by the fall in daunger of death is no sufficient cause to saue a default but the swelling and ouerflowing of waters is a good and sufficient cause so is an imprisonment f 38. H. 6. 12. for though the imprisonment do originaly happen by the acte of the partie yet it is an impediment of apparance against his will it is a restraint imposed by acte of Lawe g 3. H. 6. 46. so that the partie is as it were by Law made corpus immobile therfore his default must needs be excused 4. H. 5. sicknes was held a good excuse to auoid an outlawrie h 4. H. 5. Chalenge 153. Br. Sauer de def 45. but M. Br. doubteth of that because sicknesse may be feined yet vpoÌ„ the booke of 4. H. 4. cited in the boke called the abridgment of assises because there maladie was pleaded against outlawry was admitted i Abridgem dâ—ssise 48. he beginneth to wayuer in opinioÌ„ k Br. Sauer de def 48. therfore I may with more colour leaue it doubtfull Nomomath Which is the most common actioÌ„ 5. Diuision in your law Codicgnostes Codcignost The action which is called actio 1. The most coÌ„mon action in the Ciuill law is actio iniurariuÌ„ which is either ciuilis or praetoria iniurariuÌ„ which is either ciuilis or praetoria Ciuilis if a man do assault an other or do beat him or do enter into his house l ff de iniur l. lex Cornelia in all other cases it is praetoria but both kinds agree in this that the fault iniurie is punished m Instit de iniur §. penult ff de iniur l. iniuriarum and in the pursuing of it a man may deale either ciuilly or criminally but one of the waies being choseÌ„ the other may not be entred into n L. quod senatus l. praetor §. 1. ff de Iniurijs and if the partie bring ciuilem actioneÌ„ iniuriarum he shal recouer the damages o ff Iniur eod l. IdeÌ„ apud §. si quis seruo but if he bring praetoriam he shall effect nothing thereby but vindictam the punishment of the partie which hath offended Anglonomoph This your speech teÌ„deth to no other purpose as it seemeth theÌ„ to insinuate that such wrongs may be pursued by actioÌ„ or enditement 2. Actions and enditements at the Common law are compared with Ciuill praetorian actions wherein our Law doth not any whit disagree For if foure men enter into land and one of them entreth by force this is force in them all they may be impleaded by action or impeached by enditemeÌ„t p 2. E. 3. 12. li. ass 33. CroÌ„pt I. P. 61. but if a maÌ„ enter by force where his entre is lawful so that there is no fault in the matter of his title but in the manner of his entre onely he shall not be punished by way of actioÌ„ but by way of enditement q 15. H. 7 17. Fitzh I. P. fol. 117. Br. Forcib entre 11. 9. H. 6. 19. Fitzh N. B. 248. and so if the disseisor hold possession by force during the space of three yeares if the disseisie bring an action vpon the Statute of 8. H. 6. hee shall be barred by this matter pleaded but otherwise it is in an inditement vpoÌ„ that statute which is the Queenes suit and vpon such inditement the partie shall haue restitution though hee may not haue an action r 14. H. 7. 29. per Fineux Reade Tremaile and if the disseisie oute the disseisor with force the disseisor shall not haue an action but yet the disseisie may bee indited vpon the aforesaid statute and the disseisor shall thereby be restored 6. Diuision Å¿ 15. H. 7. 17. Fitz. N. B. 248. Nomomath I would haue you to proceed Codicgnostes in describing vnto mee the forme of
the equity and direct meaning of these statutes diuers amendementes haue bin made and vsed in our law and therfore in an action of debt grounded vpon a recouerie of damages had in an assise the date of the writ of Assise was not put in the writ of debt and it was held that it should be amended because the Clarke had the recorde for his instruction h 13. H. 7. 21. but whereas a writte of debt was brought per Iohannem Gargraue Esquire and the obligation was Ioan Gargraue onely this was not amended but abated because this misprision came of the plaintifes part Quaere tamen but 8. E. 4. and 11. E. 4. if an action of debt the Clarke of the Chauncerie haue the obligation with him at the time of the making of the writte and there be variance betweene the writte and the obligation it is clerely amendable but if no addition bee giuen to the defendant that is not amendable i 8. E. 4. 4. 11. E. 4. 2. and 22. Ed. 4. if an action of debt bee brought against executors of the debt of the testator if the writ be in the Debet and Detinet it is not amendable k 22. E. 4. 21. per Cur. and in a writte of Audita querela the surname of the defendant was Langawaite and in the Indenture of Defeasance his name was Langwaite without the letter a in the middest whereuppon the writ was amended by statute because that was not of the substance of the name or surname and also it was to bee intended that the Clarke had the Indenture of Defeasance at the time of the making of the writte l 21 H. 6. 8. and so in an action of debt where the writte was Hille and the Obligation was Hulle the writte was amended m 22. H. 6. AmendmÌ„t 31. 37. H. 6. 32. and where more was in the Obligation then in the writte it was amended n 19. H. 6. AmendmÌ„t 47. but 41. E. 3. it is helde by Finch that a writte originall shall abate for default of forme and shall not bee amended in the Courtes of common Lawe for though it be pleadable there yet as Master Statham reasoneth the Chauncerie is an other Court and a superiour Court o Stath tiâ— Amend 20. H. 6. and therefore the things done there cannot bealtered in Courts of common Law p 41. E. 3. 14. â— Finch 9. H. 7. 16. per Vauis 2â— E. 4. 20. and for the more ful forcible destruction of delayes and ambushes in pleading it is by the common Lawe ruled that euerie demurrer vpon a plea which goeth in barre and to the disproofe of the Title is peremptorie and thoughe a plea in Abatement of a writte bee not peremptorie but a respondeat vlterius yet if the plea in Abatement of a writte bee tryed by the Cuntrie this is doubtlesse peremptorie for the delay of the partie q 48. E. 3. 10. â— Finch 34. H. 6. 8. 50. E. 3. 20. 34. H. 6. 37. But it is peremptorie onely against the tenant or defendant not against the plaintife or demaundant for he is still at large r 5. E. 4. 90. 2. E. 4. 10. Nomomath Let mee interrupt you Anglonomoph for I doe verie much desire to heare of you and Codicgnostes the fourmes of the defences or barres which the defendants are to make against these declarations before recited by you Codicgn I will make knowne vnto you the most common and vsuall forme of pleading in barre in this case Vt vobis clarissimo magnifico 16 The forme of a defence or barre in an action of iniuries c. constet legitâ—me appareat de innocentijs inculpabilitatibus legitimisque defensionibus predicti Sempronij delati preuenti seu inquisiti ipsumque ad malam iniustam dolosam iniquam nonnullorum suorum maleuolorum inimicorum delationeÌ„ instigationem seu denunciationem fuisse preuentum in processu inuolutuÌ„ et per vos vestramque definitiuaÌ„ sententiaÌ„ dictus c. delatus seu pÌ„uentus seu inquisitus pronuncietur declaretur innocens exoneratus minime culpabilis sibi impositorum vt ab eisdem impositis eadem vestra sententia absoluatur dictus vero denuntiator in omnibus damnis interesse expenssis erga eundem praeuentum delatum seu inquisitum condemnetur condemnatusque ad refarciendum soluendum cogatur compellatur aliâs ius iusticia eidem praeuento intitulato fiat administretur Inprimis igitur dicit ponit asserit quatenùs opus erit prout supra iustificare intendit quòd ipse praeuentus seu denunciatus ex nobilibus catholicis legalibus probis honestis in omni genere virtutis exercitatis parentibus seu genitoribus traxit originem Item dicit ponit quòd dictus intitulatus preuentus vestigia dictorum parentum suorum insequens toto tempore vitae suae fuit est catholicus legalis probus honestus absque eo praeter id quòd Titius praedictus querens de eodem intitulato seu praeuento aliqua laborauerit infamia sinistra suspicione aut mala fama Item quòd semper pacifice quiete inter omnes se habuit conuersatus fuit omnibus prodessendo neminem ledendo seu offendendo Item negat se dictum Tittum pulsasse verberasse ei vel cuiquam alteri via facti seu dicti seu aliâs nocuisse vulnera liuores vel concussiones intulisse Ex quibus apparet dictum intitulatum seu praeuentum fuisse esse a sibi impositis innocentem minime culpabilem indebiteque iniuste intulatum preuentum in processu inuolutum fuisse per consequentiam in via absolutionis relaxationis fore esse Nomomat This barre is somewhat longe let me heare the forme of your barre Anglonomoph which I hope is a great deale shorter Anglonomoph It is so if you will haue the ordinary plea in barre which comprehendeth the 17. The forme of a defence in an action vpoÌ„ the case generall issue For it is no more then this Et praedictus P. L. per R. attornatum suum venit defendit vim iniuriam quando c. dicit quòd ipse non dixit retulit nec propalauit de praedicto W. verba praedicta c. modo forma quibus idem H. superiùs versus eum queritur de hoc ponit se super patriam praedictus H. similiter c. Nomomath This is briefe and substantiall but now what is to be done according to the order of your proceeding Codcign Now that the matter is growne to 18. The forme of triall by the Ciuill law this ripenes so that the one maketh perfite affirmation the other absolute deniall the matter is to be tried by proofes witnesses which now are to be examined Anglonomoph So it is with vs for the cause 19. The forme of triall by the CommoÌ„ law
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