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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A01292	A parallele or conference of the ciuill law, the canon law, and the common law of this realme of England VVherein the agreement and disagreement of these three lawes, and the causes and reasons of the said agreement and disagreement, are opened and discussed. Digested in sundry dialogues by William Fulbecke. At the end of these dialogues is annexed a table of the sections ...; Parallele or conference of the civill law, the canon law, and the common law of this realme of England. Part 1	Fulbeck, William, 1560-1603?	1601 (1601)	STC 11415; ESTC S102689	180,892	262

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 conueniēt forme in these times it is very apparāt by this that M. Tullius being one of the dunmuirs was thrust into a sacke and by Tarquin his cōmandement 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 ſ 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 ●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. Dio●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 cōmodious could euer happē to any cōmon-weale these together with other constitutions made vpō principal occasion were obserued retained as the leuil of the Romane gouernmēt 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 volūtary conceit cōmanding forbidding they rather raged thē raigned the decrees of some of thē namely Tiberius Caligula Cōmodus are wittily tearmed of the lerned ciuiliā furores nō iudicia b Alber. Gentil lib. lecti Et Epi. 3. c. 18. but these laws in the times of Archadius Theodosius Iustiniā recouered their strēgth shining to al the Cōmon weals of Europe as the Sun to al the climats of the earth haue for their worthines necessary vse emploimēt receiued intertainmēt countenāce 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 exploratiō 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

religious man ought to doe fealtie tenāt 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 ●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. veniēs 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 ſ Cap. 1. de feud march ducat● 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 thē the Law intendeth that fealty onely is to be done this is called Francū or Liberū u Ca. 1. de no. form fidel sometime it is giuen with reseruation of speciall seruice that is feudum non nobile a Ca. f● de capilan qui cur vendid somtime it is giuē in perpetuū 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 guerrā 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 brāches 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 Lit● ' 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

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 ●e may lease it grant it or deuise it before the existence of it 7. That a deuise may