thē both x 28. H. 6. 7. de tempore quo c. dum ipsa solafuit but whereas a man a woman be receiuors they after entermarie in the writ they shal be both named receptores a 4. E. 4. 26. 19 H. 6. 5. but a writ of account wil not lie against an infant as bailie or receiuor to any man because the law will not intend that any man will put confidence or trust in him who wanteth discretion experience b 17. E. 2. Accompt 121. 16. E. 3. Accompt 57. 27. E. 3. 77. 19. H. 6. 5. Canonol There is nothing in our law which oppugneth any thing that you haue said Nomomath If the master of the baylie happen to die whether may his executors charge 3. Diuision the bailie with an accompt Codicgnost By our law they may c ff acti mandat direc l. si vero §. f. 1 Anglonomoph That likewise is warranted by 1 Accompt ought to be made to executors by the ciuill law our law for if any haue cause to haue an actiof accompt against his bailie or receiuor if he dye his executors may haue this action yet the common law at the first was otherwise d 7. E. 3. 62 But now it is altered by the statute of Westminst 2. c. 23. and agreeth fully with your law in this For 38. E. 3. one was bailie of a woode to two ioyntenants a writ of accompt was maintained by the executors of him that suruiued e 38. E. 3. 8. to which accordeth 19. E. 3. and that the heire shall not haue a writte of accompt against him 2 The same is warranted by the common law that was receiuor to his father f 19. E. 3. Accompt 56. And 3. Eliz. the administrator brought a writ of accompt g 3. Elizab. 202. Dy. 3 That a writt of accompt by the common law will not lie against executors vnlesse it be in some speciall cases But a writte of accompt will not lie against the executors or administrators of a bailie or receiuor for the receit and occupation of their testator h Fitzh N. B. 117. C. vnlesse it be in the kings case i Littlet tit socage But if the executors doe once enter into an accompt a writte of accompt will lie against them in the case of a common person k 12. E. 4. 10. Or if the bailie or receiuor bee found to bee in arrerrages of accompt and die an action of debt lyeth against his executors vpon an insimul computauerunt l 2. H. 4. 13. And it appeareth by that booke that in the writ he must be named executor and a bailie may haue a writ of debt against the executors of his master for a surplusage of accompt m 13. H. 6. executor 21. Canonol This I can not withstand by any reason in our law Nomomath I pray you let me know the force 4 Diuision and substance of the authoritie which the master may giue to the bailie Codicgnost It is no more but when a man 1 What authoritie may be assigned to a bailife by the ciuill law may do a thing by himselfe hee committeth it to another to be done of him n Gaxalu verb. mandat And hee that doeth execute the authoritie ought not to exceed the limits of his authoritie o Iusti manda §. si is qui. But this difference 2 The difference of an authoritie a charge and command by the ciuil law we put betwixt an authoritie a command and a charge The commaund is determined by the death of him that commandeth the authoritie is not neither is the charge as by this verse though somewhat obscure is not obscurely signified p In his de verbo sig Praeceptum non praecipitat mors praecipientis Mandatum mandatore cadente cadit Canonol But some hold opinion that all these 3 The canon law is against the difference so likewise is the common law three authoritie command charge doe expire by the death of him that commaundeth chargeth or giueth authoritie q Ioan. 14. q. 1 quod praecipit Anglonomoph In deed that is more agreable to our lawe especially in this matter of bailieship as may appeare by diuerse authorities in our law r 2. Eliz. 177. Dy. 5. Eliz. 219 Dy. 2 E. 4. 4. 10. Eliz. 270. Dy. Nomomath I pray you let me know the difference ◠Diuision betwixt a bailie a solicitor an atturney and deputie that I may haue more distinct knowledge of that which I endeuour to know Codicgnost A bailie is he to whom a speciall charge of procuring a mans profite and the valuable 1 The difference betwixt a bailie a solicitor and attourney and a deputie is shewed out of the ciuill law increase of his wealth is committed ſ Gazalup in ver villici an Attourney which wee tearme by the name of Procurator adiudicia is he which in place of iudgement doth for an other man by his warrant complaine or defend t ff mandat l. 1. §. 1. and this may bee done either in the presence or absence of the master but a solicitor which of vs is tearmed Procurator ad negotia is hee that handleth the cause of his master being absent And an Attourney by our law must at the least bee of the age of xxv yeares but a sollicitor may bee though he be but seuenteene yeares olde u c. fi de procu l. 6 A deputie is hee to whome a speciall authoritie is committed to deale in a certaine businesse x c. de offic eius qui vic gerit And there is this difference betwixt a bailie or a deputie and an attourney or a sollicitor because in a baily or deputie the businesse which is committed to them which we call negotium extra iudicium beginneth at the ministerial partie that is the bailie or deputie and is transferred vnto the Lord or master for the effect of the businesse whether it be profit or charge belongeth to the Lord but the busines of the Attourney or sollicitor which we call negotium in iudicio is originally in the Lord or master after as we say transfunditur in procuratorē it is conueied to the attorney or sollicitor a l. si procurator meus ff de neg ge Canonol We make no such difference in our 2 The difference holdeth not in the canon law law for euerie one which doth administer an other mans busines we cal by the name of procurator b 1. q. 3. saluat Anglon The common law doth in this more agree with that which Codicgn hath said I will 3 The cōmon law according to the aforesaid difference doth more agree with the ciuil then with the canon law speake of this difference as the cases in our law concerning it shall come to my memorie The name and office or duetie of a sollicitor
there be two kindes of contention one by triall of Law the other by triall of Armes so we may not vse the later if we may haue helpe by the former This was the cause that the Romanes were wont to mooue them with whom they dealt that their quarrels might be ended by mutuall debating and course of iudgement rather then by blowes and weapons And so the Ardeates and Aricines the Neapolitanes and Nolanes did referre their controuersies to the iudgement of the Romanes g Liui. 3. Dionys vlt. Cicer. 1. de offic So the Samnites did prouoke the Romanes to debate their coÌ„mon cause betwixt their common friendes h Liui. lib. 8. And Archidamus said that it was not lawfull to wage battaile against them which did offer themselues to bee ordered by peaceable iudgement i Thucid. l. 1. and Cyrus who is proposed as a patterne of an excellent prince by Xenophon a principall Philosopher and very wise Gouernor maketh the king of the Indians an Vmpier betwixt himselfe and the Monarch of Assiria k Xenoph. Cyropaed 2. therfore they which flie from this peaceable kind of triall which is nothing els but a disseptation of of words and reasons do digresse from iustice humanity commendable examples but it is good to bee prouided for armes when the parties will not tollerate indifferent hearing of the cause which the poets seeme to haue signified when they feygned Chiron the Centaure whose vpper part did resemble a man the inferior part a horse to be tutor to Achilles l Statius Achilles lib. 1. that they might giue vs to vnderstand that when a controuersie could not be moderated by reason the strength of the horse should be vsed for against them which will not be ruled by equitie and reason force is not vniust But as Scipio said a gouernor in warr ought like a Phisitian to vse iron and launcing in the last place m Plut. in apophth And as to the bearing of armes it is certaine manifest that priuate men and people subiect and inferiour princes haue no such necessitie to make triall by battaile because they may pursue their right by other lawfull meanes in some court of iustice neither haue priuate men any authority to assemble a multitude It is Plâ—â—es law Si quis prinatim sine publico scitu pacem bâ—â—â—â—ue fecerit capital esto n Plut. lib. vit de legi If any man priuately without publike knowledge doe make warre or peace let it be capitall vnto him for it belongeth to the power of the supreme gouernor to make warre or peace o Deci. cong 20. and therefore by the law of Iulius it was high treason for any to leuie armes without the consent or command of the prince p l. 3. ad l. Iu. ma. the Romanes did thinke it conuenient to yeeld such a man into the hands of them whom hee had prouoked by weapons q Appian Plut. in cat mi. and vppon such occasion they demanded the person of Annibal and so the Philistines vpon like cause demaunded Sampson to whome the Iewes yeelded him r Iudic. 15. and Cato thought that the army was to be recalled Caesar to bee yeelded vp into the enemies power because he maintained warre in Fraunce without the warrant of the people in whose handes the commandement of warre and peace was Å¿ Liui. lib. 4. 16. 18. 19. but without vrgent cause and lawfull authoritie there should be no taking of armes or raysing of multitude therfore it is well prouided by the statutes of the two soueraigne Queenes sisters Marie Elizabeth of England That no man without authoritie by ringing of any bell or by sounding of any drumme trumpet or horne or any other instrument by the fiering of any beacon or any other instrument c. with force and armes shall alter any lawes or statutes t 1. Mari. parliam 1. c. 12. 1. Eliz. c. 7. And in ancient times kings had the supremacie ouer other of commaunding or commencing war and of mâ—stering men as appeareth by the sacred historie â—et sometime vpon a great or u 1. Reg. cap. 8 necessarie cause as if there be daunger in delay or the soueraigne prince be absent warre may be vndertaken without the commaundement of the prince if it be vpoÌ„ occasion of iust defence which by the law of nature is graunted to euery one and there is an excellent example to this purpose in the Romane history of L. Pinarius who was the captain of a garrison at Enna in Sicely who wheÌ„ he did foresee the reuolt defection of the citizens of Enna to the Carthaginians and hee could not conueniently send ambassadors to the Consul Marcellus though he were not far froÌ„ thence suddenly he did kil all the citizens by which act Enna was still reteigned for the Romanes Marcellus did not disallow the deed a Liui. lib. 24. therefore Cicero commendeth the enterprise of Octauius Caesar who not expecting the decree of the Senate did of his own head vndertake war against Antonius for the time of coÌ„sultation was not yet come but if he had theÌ„ omitted the time of battel he did well foresee that the coÌ„mon weale being oppressed nothing could bee decreed by Senate b Cice. Philip. pic 8. and the Senate did after allow by publike authority the war vndertakeÌ„ by Octauius of his owne priuate aduise c Cic. Philip 5. so Scipio Nasica did deserue exceeding coÌ„mendation who did voluntarily offer himself a captain to all good Romans for the oppressing of Ti. Gracchus together with his treacherous confederates d Valeri Maxi. lib. 3. c. 1 Appi. de bel ciui lib. 1. For it is necessarie as Cicero sayth in such perturbation and tumult rather to obey times then customes for in peace wee must follow custome in warre profite but nowe as to the iustice of warres e lib. 2. de rep c. 5. if bellum haue his denomination a belluis as some doe imagine it should seeme to be vndecent and discrepant from the nature of man Heare of that matter Sencea Wee punish homicides and particular murders why doe wee not punish wares and the glorious sinne of people slaughtered Couetousnes crueltie know no measure By Senate-counsell and popular assent bloody actions are executed and publikely commaunded which are priuately forbidden f Senec. epist 96. Men a mild kind of creature are not ashamed to boast of bloudshed when as dumbe and reasonlesse creatures haue peace amongst themselues g Cuia Critic not 1. c. 2. de cla desp Lipsi 2. mili Rom. 12. And at the first sight this is a great argument that if dumb creatures which can not debate the causes of their anger haue peace amongst themselues how much more ought men to doe the like vnlesse they will be more beasts then the beasts themselues Cyprian hath the like saying Homecide when particular men doe it is accompted a
subiectes to come to anie place at the Citation of Bishops ad faciend'aliquas recognitiones vel sacramenta praestanda nisi solùm in causis matrimonialibus et testamentarijs And M. Fitzherb thinketh that 4. The Barrister disproueth the general citations of Bishops ad sacramenta prestanda by the common Law these generall Citations which Bishops make to cite men to appeare before them pro salute animae without mentioning any speciall cause is against Law b Fitzh nat bre 41. A. Nomomath Why may they not vse such generall Citations as well as a Iustice of peace 5. Nomomathes encountreth him in this point by your Law may make a precept to bring one before him to aunsweare to such things as shall be obiected against him without shewing any speciall cause c Crompt Iust p. 131. et 132. And if by your Law they can receiue no oath but onelie in matters Matrimoniall and Testamentarie then it must needs be intended that though their processe be generall ad sacramenta praestanda yet it is specially meant of Matrimoniall or Testamentarie causes For I remember a good rule in the Canon Law to this purpose Quando constat de lege sufficit generalis allegatio d 28. q. 1. sicut enim in si But what saie you to this matter of oathes Codicgnostes Codicgn Our Law differeth little or nothing 6. The Ciuill Law agreeth with the Canon in matter of Oathes from the Canon law in the discourse of oathes And as the Canonistes wee make two sortes of Oathes Conuentionale and Iudiciale Conuentionale or Promissorium is when we sweare de futuro that we will giue some thing or do some thing c e Bartol in l. si quis ff de si dâ—nstrum Iudiciale is when the Iudge for the triall of the truth of a controuersie and the infourming of his owne conscience vrgeth the partie to take an oath f ff eo tit l. ius iurand Of both these riseth an action triable wel enough by the Canon Law for in this matter the Canon is the sterne and motiue of our iudgements and therefore we hold the rule of the Canon Law firmely Praestans et recipiens iuramentum contra Canones punitur g Gl. verb. paena capi grauis de censi Nomomath Well I will trouble you no further about questioning of things belonging to seuerall iurisdictions but will now passe to inquire somewhat of such thinges whereof an Action of the case will lie The second Dialogue Of Actions vpon the Case NOnomath I haue some time meruailed Codicgn wherefore an Action vpon the case which you tearme actionem iniuriarum should not haue a speciall name aswell as other actions when as at the Common Law euery action beside this hath his speciall name As an action of Dette of Accompt of Wast of Detinue of Couenant c. And in your Law there is 1. Diuision Actio ex stipulatu actio empti actio depositi actio de pauperie c. I pray you therefore let me know the reason hereof Codicgn What is more ebbing and flowing then mans inuention for some things it hath wordes too many for some it wanteth names Therefore Iuuenal when he sought for an apt name for that age which ensued the fower famous ages being this last age of the world and worse theÌ„ the yron age he nameth it by giuing it no name for his inueÌ„tion could not find out any proper appellation and thus resolueth quorum sceleri non inuenit ipsa Nomen et a nullo posuit natura metallo And because our sage Maisters of the Law could not deuise as manie seuerall names as there be seuerall iniuries for what Dictionarie could conteine so many names and because the name of the signe should be ample and large enough for the thing named or signified 1. The reason is shewed wherefore actio iniuriarum hath so generall a name at the ciuill Law therefore they deuised that actio iniuriarum might serue for all wrongs for which they could not frame particular names Anglonomoph Indeede as D. Stephens his water was fit for manie diseases and yet had neuer any speciall name but was generallie 2. The Barrister compareth an Action vpon the case at the common Law to D. Stephens his water tearmed Doctor Stephens his water so likewise an Action vpon the case stretcheth as a remedy against manie offences Yet it hath no other name then an Action vpon the case And it is therefore so tearmed because euerie mans case must be in that action speciallie and at large set downe for in that action the writ ought to comprehend the speciall matter as well as the declaration a 7. H. 6. 47. Wherfore in an Action vpon the case brought against one who was reteined to buie a Manor for the plaintife which he after purchased for himselfe in deceit of the plaintife and the plaintife did not shew of whom the Manor should be bought in the writ but onelie in the declaration the writ was abated b 16. H. 6. Action sur le case 44. 48. E. 3. 6. Brief 627. 33. H. 6. 26. 11. H. 6. 2. 22. H. 6. 53. Nomomath I pray you satisfie me in this If 2. Diuision a man be enterteined or lodged in an Inne and some of his goodes be taken from him out of the Inne by a straunger whether may he haue an Action vpon the case against the Inne-keeper Anglonomoph Doubtles he may if it were a common Inne in which hee was lodged c 2. H. 4. 7. 5. Mar. 158. Dyer And if the partie so preiudiced doe bring an 1. An Action vpon the case lieth against the keeper of a coÌ„mon Inne if goodes be imbeasiled Action vpon the case against the hoast it is no plea for him to saie that the plaintife did not deliuer any goodes vnto him or that the plaintife himselfe had the key of the chamber And an Elegit hath been awarded in such case of the land which the defendant had the daie of the iudgement giuen and not the daie of the writ brought And a Capias ad satisfaciendum lieth not because it was a laches and no wrong d 42. E. 3. 11. And therefore the wordes of the writ be pro defectu ipsius B. e Fitzh nat bre 94. B. But the opinion of Hill is 11. H. 4. that if the Inne-keeper in such case doe notifie vnto the guest that he can not attende vpon him and notwithstanding he will needes be harboured there at his perill the Inne-keeper is discharged f 11. H. 4. 45. per Hill And 22. H. 6. the difference 2. If a stranger lodge with me by my consent and do imbeasill goodes the Inne-keeper shall not be charged is taken that if a man doe lodge in chamber with me by my consent meerlie and not by the appointment of the hoast and he robbeth me the hoast shall not be charged Otherwise is it
hath partes distantes yours in this for either a thing hath partes cohaerentes as a house and this may be diuided by a seuerall occupation Or els it hath partes distantes as a load of woode or a flocke of sheepe and this may be membratim or corporally seuered and diuided y Ber. de exces prae lab lib. 6. Codicgn The verie same difference doth our Law reteine z L. non ampli §. cum bonorum ff de legat 1. Nomomath Well I will sticke no longer in this plaine title Now prepare your selfes for the sifting of more intricate pointes then haue heretofore been handled by yee sithence the beginning of this second conference The seuenth Dialogue Of Conditions NOmomath In the treating of Conditions I will not trouble you with any exquisite definition of Conditions because I doe imagine that I shall draw that out of the resolution of the cases which I shall propose vnto you My first question therefore is this Whether doth the word 1. Diuision Si alwaies import and signifie a condition in matter of contract and limitation of estate Codicgnost It doth not alwaies signifie a condition 1. Si doth not alwaies signifie a condition in the ciuill law but sometime it signifieth an vncertain cause as I promise to Titius ten pound if he do accomplish my busines Sometime it signifieth 2 Sometime it signifieth an vncertain cause 3 Sometime it signifieth a certaine cause 4 Sometime an vncertaine euent a certaine cause as if the iudge do giue iudgement for me sometime it signifieth an vncertain euent conditional as I promise thee twentie pound if I. S. be in Westminster hall such a day and sometime it signifieth a condition or 5 Sometime a condition a conditionall disposition which alwaies suspendeth the premisses or matter precedent a l. itaqueff si cert pet l. de monstra ff de condi demonstr § fi Insti de verb. oblig as if I promise vnto you Stichus my bondseruant if I do not deliuer him vnto you within such a day then I will giue vnto you twentie pound nomine paenae here is both a condition likewise conuentio paenalis which is presently to take effect vpon the breach of the condition b l. Stipulatus §. 1. ff de verb. obli So if the testator say if my bondwoman shall bring forth three children at three labors let thē be free now if the woman bring forth foure children at two labours they shall all bee free for though there bee foure children yet there is but a double labour and in the eye of law bringing forth but two children for all that bee brought forth at one birth are but as one child in regard of their natiuitie as our law intendeth because the law respecteth that quod plerunquefit and for the most part one child is borne at a birth and not two or more c l. Aretusa ff de stat homi l. cum mater § fi ff de fidei commis And in this case benigna interpretatio facienda est in fauorem libertatis And because it can not bee well vnderstood whether of the two children shall be free therefore both by construction of law shall be free Nomomath This seemeth straunge to mee that two children should bee one childe two procreations one birth vnlesse it bee because the parents were one person in law when they begot them And surely Quintilian maketh two distinct procreations in your case therfore he saith Quid refert an ex eisdem prima illa duorum corporum animorumque compago seminibus oriatur sibi quisque firmatur sibi quisque componitur duo pluresue fratres nascuntur fato singulorum d Quintil. in Gemin languent And Esau and Iacob famous twinnes were borne so continuatly as I may say together that the later did holde the fate of the former e Genes 25. Yet God forbid that wee should accompt these two one Saint Augustine boldly and wittily distinguisheth them thus Vnus duxit mercenariam seruitutem alius non seruirit vnus a matre diligebatur alius non diligebatur vnus honorem qui magnus apud eos habebatur amisit aliter ademptus est Quid de vxoribus quid de filiijs quid de rebus quanta diuersitas f August lib. 5. de ciuitat De. c. 4. And therfore surely in this point I take your law to be contrarie to the course of nature Codicgnost It is not in the supposall of one procreation of two twinnes eyther contrarie to nature or arte not contrarie to nature because as there is one conception of two twinnes so there is one puerpercie though it bee finished at diuers times for the labour still continueth not contrarie to arte for the Astronomers hold that twinnes are alwaies borne vnder one Horoscope vnder the same constellation and the same situation of the starres for the Horoscope in Astronomy if it be formally taken is nothing els but horae inspectio if it bee materially taken it is that part of the Zodiacke which ascendeth vpon our hemisphere for the Zodiacke circle is alwayes rowled about and some portion of it doeth alwayes arise to vs some doth alway decline some is in one region of the heauens some in another and children being borne vnder one situation of the stars as they be like in the qualities both of the bodie and minde so in the producing them to light there is but one labour in their cressence in the wombe there is but one operation of nature Nomomath You haue rather aunswered mee then satisfied mee for I am perswaded that I shall neuer bee of your opinion whilest I liue neyther will I applaude to your lawe in this But Anglonomophilax I hinder you from examining the parcels of Codicgnost his precedent speech of conditions Anglonomoph I will not meddle with Codicgnost his midwiferie in handling matters of law but will turne saile from it as Cato disliked to prattle with women in the Senate house g Liui. li. 34. But as to the assertions of law which he hath set downe they shal not glance frō me without touch Whereas he hath said that this word si doth signifie an vncertaine cause in 6. Si doth signifie an vncertaine cause at the commō law their law so it doth likewise in ours as appeareth by Boldes case in my L. Dyers reportes which was thus R. Bolde brought an action of debt against Molineux for 30. pound vpon an obligation endorsed with this condition that if it fortune Ioane Molineux to decease before the feast of S. Iohn baptist which shall be in the yeare of our Lord 1553. without issue male of her bodie by the said R. B. lawfully ingendred then liuing that then c. and the defendant said that after the making of the said writing before the said feast the aforesaid Ioane at B. in the countie of L. dyed without issue male of the bodie of the said woman
by the said R. B. lawfully ingendred then liuing and the plaintife said that hee ought not to bee barred from his action for he said that after the making of the said writing before the said feast namely the 12. of Iune anno c. the said plaintife at M. in the countie of Lancaster tooke to wife the said I. and they had issue betwixt them H. Bolde and after before the said feast the said I. and the said B. dyed the said H. being the sonne of them both at the time of the death of the said I. being then full liuing and after and before the said feast namely the twelfth of Iune the saide H. B. at B. aforesaid dyed and the defendant hereupon did demurre in law And the question was whether this word tunc in the condition should be referred to the time of the death of the wife and it seemed to Mountague and Baldwin that it should not but that it ought to bee referred to a time certaine for euerie tunc relateth to his quando but they thought that it should bee referred to the feast which is certaine and not to the death of the woman which is vncertaine but Shelley and Knightley thought otherwise For in diuers cases relation shall not bee made ad proximum antecedens as if a man make a lease for life the remainder in taile the remainder ouer to I. S. in forma praedicta this shall not bee referred to the estate taile which doth next preceed because it wanteth the word heires to make an estate tayle and therefore it shall be referred to the first estate Which later opinion if it bee lawe then by our law si may signifie and may make other wordes to signifie an vncertaine cause of the accomplishment of a condition h 28. H. 8. 14. Dy. Boldes C. And whereas hee hath said that sometimes it signifieth a certaine cause as if the iudge doe giue iudgement for me So likewise it signifieth a certain cause in our law 7. Si signifieth a certaine cause at the common law for 8. E. 4. the case was this An action of debt was brought vpon an obligation by the Dutchesse of Suffolke the defendant said that it was endorsed with this conditiō that if the defendant should stand to the arbiterment of the said Dutchesse touching all maner of suits c. betwixt him one B. that then the obligation should be void c. And this was admitted to be good and thereupon it may be concluded that si sometimes in our lawe importeth a cause certaine as the Dutchesse in this case was a certaine cause of the arbiterment i 8. E. 4. 1. 9 Dutchesse de Suffolke C. So 23. Eliz. the case was that two were bound to stand to the arbiterment of two if they did make their awarde within two daies after the date or making of the said obligation and the obligation bore date die Sabbati ante prandium and the award was made the same day post prādium and this was held to be good because it shall bee intended that it may be made at any time after the date of the obligation vntill two daies immediatly following be past And as in 8. Si by the common law may signifie an vncertaine euent the ciuill law so likewise by our law si whether it be expressed or implyed may signifie an vncertaine euent for if a rent be graunted for life to I. S. the remainder to him that shall first come to Paules the next day in the morning this remainder is good though it be vpon a si implyed if I. S. dye not before the next day and if one come to Paules the next day in the morning and if hee which commeth thither be a person able to take by the graunt k Assis pl. 47. Perk. 13. sect 56. And whereas he saith that by their law it signifieth 9. Si. signifieth a condition by the common law a condition or a conditionall disposition so it doth likewise in our law as it is well recited in my Lord Dyers reports out of Bracton Scito quòd vt modus est si conditio quia causa And as l 4. Mari. 139. Dy. to his conceited case of the puerperie I take his reason to bee verie good that benig na interpretatio facienda est in fauorem libertatis Codicgnost What say you now sir Nomomathes I say that as for such a paradoxical fantasie Non persuadebis etiamsi persuaseris 2 Diuision But I pray you resolue me this If I sel to another certain land for an hundred pound vnlesse another the next moneth following doe giue more for it by fiue pound at the least whether doth this word vnlesse make a condition or it is an idle clause and vneffectuall Codicgn I take it clearely to make a good condition for though the sale be pure and vnconditionall 1 The word nisi or vnlesse doth sometime signifie a condition at the ciuill law yet it is resoluble and defeasible vpon a condition contingent m l. 2. §. si in diem ff pro emp. for the words following may qualifie and gouerne a direct graunt or deuise as if the testator say I deuise vnto A. a C. li. for the making of my tombe n l. quib diebus §. fi ff de condi de mon. or if he said I deuise vnto him a hundred li. pro eura liberorum meorum sustinenda or if he said I deuise vnto him so much to endow certaine poore maydens or to ransome certaine prisoners out of captiuitie here there is no condition implyed but onely a limitation or modification to what intent or purpose the deuise is o l. mille C. de epi. et cle So if the testator say I deuise to Titius C. li. 2 Law is a modification or limitation of a graunt is made which I will shall be paied vnto him out of my money which I haue in such a place as namely in such a closet or such a chest if in the closet or chest there bee no money then there is nothing due but if there be a lesse summe yet all the mony is due by reason of the intent p l. quidam testamento ff de leg 1. l. Lucius ff de ali ciba And if the testator deuise to euerie one of his free men a seuerall certaine yearely maintenance out of his landes in Dale if his landes in Dale be not sufficient for these seuerall maintenances yet they ought to be supplyed of his other landes q l. Paulo Callimacho §. fi de leg because the adiection and mentioning of the place was onely vsed for a certaine demonstration of the lande which should bee charged with payment and not for the taxation or restraint of the legacie for legatum non restringitur But if a man deuise ten pound to his daughter vntil she mary by this is intended a yearely paiment of x. li. r
because he did not giue vnto him the moitie of the other fishe This was adiudged in the Kinges Bench. But now suppose that the condition doth extende onelie to some particular estates whether shall the other estates depending bee totallie defeated by the breach of the condition And surelie our Law is that the breach of the condition shall defeat no estate but onelie that whereunto it is annexed For the case was 3. Mar. that a man deuised land to his wife vppon condition that shee should bring vp his eldest sonne the remainder to the second sonne The elder sonne entreth for the condition broken hee shall onelie defeate the estate of the wife And if the tenant for life and hee in the remainder ioine in a feoffement vppon condition that if such an acte be not done that the tenant for life shall reenter this doth not defeate the entire estate of the feoffee i 3. Mar. 125. Dy. And if a gift of land be made in taile the remainder to the right heires of the donee vppon condition that if hee alien in fee then the donour may enter if the donour enter for the condition broken the estate taile is onelie defeated k 11. H. 7. 6. 13. H. 7. 23. 10. H. 7. 11. So if a man lease land for life by deede indented the remainder ouer in fee rendring a rent with clause of reentrie for non payment by the tenant for life and to reteigne the land during his life If hee enter for the condition broken he shall haue the land onlie during the life of the tenant for life l 29. Ass pla 17. Nomomath I giue yee great thankes for the vnwearied continuance of your paines and though I bee in questioning at a non-plus yet I see your inuention and memorie are not grauelled nor dryed vp parched as it were with summers drought I praie you therefore let vs still conuerse together vnder one roofe within my walles there is no Sinon no Dauus no Momus but chast learning cabboned with frugall contentment that if God doe still vouchsafe the Moone-diall of this darksome life with the reflexe of his intellectuall illumined influence this triple-wheeled clocke may still be kept in motion by the diuine agilitie of his Lawfauouring spirit A TABLE OF THE Sections or Diuisions of the principall pointes matters and questions which are handled in euerie Dialogue The Diuisions and principall contents of the first Dialogue of Prohibitions and Consultations The 1. Diuision 1. THe originall of tithes is inquired of 2. The councell of Constance is said to haue condemned Wicklife for holding tithes to bee pure almes The 2. Diuision 1 The originall of tithes is demonstrated to be by the law of God 2. God his deputies for the receipt of tithes are set downe 3. The heathens which knew not God had great regard of of paying tithes 4. Lucullus is specially commended for the paying of tithes 5. Camillus is likewise commended for his diligence in procuring tenth to be payed 6. The Romanes carefull in paying first fruits 3. Diuision 1 Whether Parsons ought to haue no more liuing then tithes 2. It is denyed by the Canonist that they ought to haue no more liuing 4. Diuision 1 A lay man by the Canon-law may prescribe in paying a speciall portion in lieu of tithes 2. The ciuill lawe agreeth thereunto 3. By the common lawe a man may prescribe in paying a temporall recompence in lieu of tithe 5. Diuision 1 Two sortes of tithes are set downe by the Canonist some feudall some ecclesiasticall 2. The Church onely holdeth conusaunce of the right of tithes by the Cannon lawe 3. The king of Fraunce his edict touching tithes is sette downe 4 That by the Canon law where the question of tithes is facti and not iuris the examination thereof may belong to a laye iudge 5. Where the suite of tithes is betwixt clergie men though it bee meerely possessorie yet it be longeth to an ecclesiasticall iudge by the Canon law 6. Diuision 1 The nature of feudall tithes is opened by the Canonist 2 Charles Martle is accused of Church-pillage 3. The Canonist telleth a strange tale of Charles Martle 4. It is thought of Nomomathes to bee but a fable 5. One of the ancient statutes of England is compared with the aforesaid edict of the king of Fraunce 6. The common law agreeth with the Canon in the attributing of the decision of the right of tithes to the spirituall iudge 7. Where one parson may sue a spoliation against the other in the spirituall court 8. The executors may bee sued in the spirituall court 9. Of what trees tithes may bee demaunded by the statute of 45. E. 3. 10. That the rent payed for tithes vpon a lease for yeares is a laye chattell 7. Diuision 1 A precept issueth with a monition vnder payne of excommunication for the due satisfaction of tithes 8. Diuision 8 The degrees which the Canon law obserueth in punishing offences in the clergie 2. Two sorts of excommunication sette downe by the Canonist 3 The compulsorie statutes of England for payment of tithes are mentioned by the barrister 4. Impropriate tithes at the common law are compared with feudall tithes 9. Diuision 1 The Ordinarie ex officio may cite men to pay tythes 10. Diuision 1 Two sortes of heretickes formatus and suspectus 2. In what cause the wife and children of heretickes shall enioy their landes 3. Heretickes by the ciuill law not punishable by fire 4. The Canonist poasteth the punishment of heretickes to the common law 5. The professor of common law bandeth backe againe the punishment of heretikes to the Canon law 11. Diuision 1 What thinges may bee tearmed Church-land by the ciuill law 2. Of Churchyards the spirituall Court shall hold iurisdiction by the common lawe 3. The right of gleabe lande is triable by the common law 4. Lands deuised not subiect to the iurisdiction of the ecclesiasticall Court 5. Suites for chattels real must be in the spirituall court 12. Diuision 1 That ius patronatus by the Canon law is determinable in the ecclesiasticall court and that it passeth by the word ecclesia 2. The diuers significations of the word ecclesia at the common lawe 3. The interest of the Parson patron and Ordinarie in the Church is shewed 4. What thinges doe make a patron by the Canon law 5. Ius patronatus is one of the proper obiects of the common law 6. That an aduowson lieth in tenure 13. Diuision 1 Punishment pro laesione fidei concerning a temporall acte is not to be adiudged in the ecclesiastical Court 2. Periurie in an ecclesiasticall court punishable in an eclesiasticall court 3. Lindwoods authoritie touching punishment pro laesione fidei in temporall matters at the ecclesiasticall law is not admitted 4 The barrister disproueth the generall citations of Bishoppes ad Sacramenta praestanda by the common lawe 5. Nomomath encountreth him in this point 6. The ciuill law agreeth with the Canon in matter
by the Canon Law 3. The common Law agreeth with them 7. Diuision 1 Two sortes of Accomptants by the Ciuill Law 2. Likewise by the Canon Law 3. And also by the common Law The diuisions and principall contents of the fifth Dialogue of Wast done in a mans ground 1. Diuision 1. OF what thinges Wast may be committed by the Ciuill Law 2. Cutting of Wood in Sylua caedua by the ciuill Law is no Wast 3. The common Law agreeth with the ciuill that Wast may be in the decaie of an house 4. A speciall couenant will binde the partie to repaire houses and walles battered downe by violence vnresistable by the common Law 5. The tenant by the common Law may cut Trees for the reparation of houses 6. The common Law agreeth with the Ciuill in the cutting of silua caedua 7. The common Law agreeth with the Ciuill in tollerating the lopping of Trees which may be auaileable for their groweth 2. Diuision 1 That both by the Ciuill and common Law where land is empeired by the inundation of water this is wast 3. Diuision 1 That by the common Law he that commeth to land by an other mans graunt ought to vse it according to the graunt 2. The digging for coale or claie in the land demised is Wast by the common Law 3. The suffering of the ground to become rushie or weedie by the common Law is Wast 4. That the Ciuill Law agreeth with the common Law in suffering one to amend conduit-pypes in an other mans ground 3. Diuision 1 The punishment of Wast by the Ciuill Law 2. The punishment of Wast by the common law The diuisions and principall contents of the sixth Dialogue of Parceners 1. Diuision 1. TWo sortes of Parceners Parceners by the common Law and Parceners by Custome 2. Who be Parceners by the common Law 3. Who be Parceners by the Custome 4. That by the ciuill Law where 3. heires are instituted they are not reputed as one heire 5. That by the common Law Parceners are reputed as one heire as to the discent of the land 6. Parceners in regard of the particion are accepted as seuerall persons 2. Diuision 1 The Statute of 31. H. 8. giueth a writ de Partitione facienda as well to Iointenants and Tenants in common as to parceners 2. The three seuerall actions against Parceners Iointenants and Tenants in common by the Ciuill Law 3. Diuision 1 Diuerse kindes of Particion at the common Law First A particion to haue a third part or a 4. part 2. A particion by way of release 3. Particion by the graunt of a thing de nouo 4. Particion by way of reseruation 5. Particion by taking the third part or the fourth part of the profites 6. A difference in the Ciuill Law where a thing that hath partes cohaerentes is diuided and where a thing that hath partes distantes The diuisions and principall contents of the seauenth Dialogue of Conditions 1. Diuision 1. SI doth not alwaie signifie a condition in the Ciuill Law 2. Sometime it signifieth an vncertaine cause 3. Sometime it signifieth a certaine cause 4. Sometime an vncertaine euent 5. Sometime a condition 6. Si doth signifieth an vncertaine cause at the common Law 7. Si signifieth a certain cause at the common Law 8. Likewise an vncertaine euent by the common Law 9. Likewise a condition 2. Diuision 1 The word Nisi or vnlesse doth sometimes signifie a condition at the Ciuill Law 2. How a modification or limitation of a graunt is made 3. A difference betwixt a limitation and a condition at the common Law 4. The common Law is more ample and large-handed then the Ciuill Law in matters of limitation 3. Diuision 1 Rursus or the word againe signifieth once againe by the Ciuill Law 2. How farre forth a word of restraint is to be extended by the common Law 4. Diuision 1 An agreement by word may defeat a matter in writing by the ciuill Law 2. The common Law is quite contrarie to the aforesaid assertion of the uill Law 5. Diuision 1 Three sortes of impossibilities at the Ciuill Law 2. What impossibilitas iuris is at the Ciuill Law 3. What impossibilitas facti is at the Ciuill Law 4. Impossibilitas naturae by the Ciuill Law 5. Which be conditions against Law by the censure of the Canon Law 6. What conditions impossible in fact are at the common Law 6. Diuision 1 Conditions by the ciuill law are taken according to equitie 2. The common lawe taketh conditions many times strictly 7. Diuision 7 There may bee a substitution conditionall of one heire after another or one executor after an other at the ciuill law 2. The heire at the ciuill law must succedere in vniuersum ius defuncti 3. By will according to the common law an entre may be limited to a straunger 4. The aduantage of entry limited to a stranger is in the late reports doubted of 5. That the entry for the condition broken defeateth the whole estate Errata Faultes Page Corrections  nations fol. 2. a. matrons There want these words fol. 4. a. There bee two sorts of tithes ecclesiasticall and feudall stande fol. 6. b. sue There want these wordes fol. 10. a. or Darius linea 22. Tertorike 17. b. Teutonike  harde 38. a. pore fate 59. b. foote puerpercie 60. a. puerperie lande 69. b. Lord. FINIS THE PANDECTES OF the law of Nations CONTAYNING seuerall discourses of the questions points and matters of Law wherein the Nations of the world doe consent and accord Giuing great light to the vnderstanding and opening of the principall obiects questions rules and cases of the Ciuill Law and Common law of this Realme of England Compiled by WILLIAM FVLBECKE Opinionum commenta delet dies Nationum iudicia confirmat LONDON Imprinted by Thomas Wight 1602. To the curteous Reader CVrteous Reader when Sulpitius returning out of Asâ—a sailed from Aegina to Megara he began to cast his eye and bend his contemplation to the regions round about him behind him was Aegina before him Megara on the right hand Piraeus on the left hand Corinth which had bene in ancient time verie flourishing Cities but were now ruinated prostrated and buried in dust that wise Romane whose eye did alwaies ayme at some conuenient marke and whose mind made perfect vse of her selected obiect when he saw these carkasses of townes considered his owne estate which was far more brittle I likewise wandring in my thoughts through the paradise of learning amongst many delightfull apparitions espied foure excellent lawes the first was the canon-law to which for the grauity I bowed the second the Ciuil which for the wisedom I admired the third the Common law to which I did my homage the fourth the law of Nations which I submissiuely reuerenced yet the hew and state of her seemed to bee much chaunged and the iniquitie of crabbed times had set the print of her metamorphosis vppon her Her other three sisters did condole with her
time and of late time in the ciuill Law is rather plain theÌ„ ponderous Vetus accipietur quod non est nouum r In l. 11. de triui leg And therefore the law of the twelue Tables they call their auncient Law and that which followeth it the new Law Å¿ l. 1. l. 3. D. de pet haered But in this sense the Law of Nations should be the auncient Law and all other humane Lawes new Lawes but auncient by the interpretation of a good Ciuilian is that cuius initij memoria non extat t l. 2. in prin de ag plu ar c. §. idem lab aut si in agr and he expoundeth this to be if there be none aliue which knoweth when it had his beginning Neither hath any heard of the beginning of the thing of those which did know it u Idem Lab. aut cum quaeritur eo A certaine time is that which hath a certaine beginning and ending An vncertaine time is directly contrary Certaine times are the yeare the day the moneth c. An vncertaine time is signifyed by these wordes before after in times past some time about such a time c. But there be diuers sortes of vncertaine times First either that which is altogether vncertaine as when such a ship shall come out of Asia for we know not whether it shall at any time come from thence or when it shall come Secondly that is said to be vncertain which though it be vncertaine whether it shall be or no yet if it be admitted to be it is certaine when it shall be as if I graunt vnto one the Corne that shall grow in such a ground for I know not whether it shall grow or no Or if I promise to be a godfather to that child which shall be borne of Martha within three daies after it be borne for I know not whether any shall be borne Or if I promise to pay such a summe of money when Titius shall be of full age here it is well knowne when Titius shall be of full age but it is vncertaine whether he shall liue till he come to full age 3. that is vncertaine which though it be certaine that it shall be yet it is vncertaine when it shall be as the howre of death The present time is so small and vnsensible that it is almost of no continuance and it is but the conioyning of that time which is past to that which is to come Time past is that which wanteth his beginning And time future is that which neuer had ending A conuenient time is after diuers sorts First either it is conuenient for some and not for all as when some causes are to be heard and not other some Secondly or profitable for all but not alwaies as the Termes whilest there are no dayes of vacation dies non iuridici Thirdly or it is profitable for all and alwaies as the Assises The second Chapter That by the Law of Nations Emperors Kinges and absolute Monarches haue full power and aucthoritie to seise the Landes and Goods of their subiects condemned for heinous offences IF any man be so straitly minded that he thinketh this prerogatiue to be too large and ample for an absolute Monarche let him think there withall that himselfe is so base minded that he cannot sufficiently iudge of the great worth and demerit of so high an estate for the name of a king importeth so great paines and charge that a kingdome seemeth not to be a sufficient or counteruailable recompence For Themistocles his choise must either be verie reasonable or exceeding desperate when he accompted it better to sinke into his graue then to ascende to a throan Wherfore not doubting of the great charge of it let vs examin the continuall custome of Nations in the executing of this power S. Lewis the French king famous in that nation for integritie iustice doubted not by publike iudgement to prescribe the farmes lordships and landes of Peter the Earle of Dreux And so were the goods and possessions of Charles Duke of Burbon seised and forfeited c Bodi lib. 5. de repub c. 3. And they haue a Law in Scotland that the goodes of persons condemned shall go wholie to the Eschequer without any deduction or reprisall to wife creditor or children The Romanes did allot their fines penalties and forfaitures to the sacrifice and seruice of their Goddes and therefore they were called Sacramenta d Festus in verb. sacrament But the Athenians did giue onely the tenth part of the goodes that were forfeited to religious vses as may appeare by the record of the condemnation of Archiptolemus and Antiphon which runneth in these tearmes Archiptolemus Antiphon vndecim-uiris capitalibus ad extremum supplicium traditi bona eorum publicata decima Mineruae data domus eorum solo aequatae And although Iustinian the Emperour did vpon some scrupulous conceit abrogate the Law of giuing the goods of condemned persons to the publike treasury and did therefore establish a Law that they should remaine to their children f Authent bona damnato de bonis dâ—mnator C. Yet diuers held this Law to be new different from the course of auncient Law-makers for euen in the most auncient times in case of high Treason in all common weales of the world such forfeitures haue been admitted for it was thought that the goodes of such persons condemned were either by fraude violence or other corrupt courses wrested from the common weale and therefore were to be restored to it againe or els because such persons hauing offended against the common weale should satisfy it that way therfore were such goodes conueyed away by Law from wife and children because for the most part they were vniustly heaped together for the aduancement of wife and children But such prerogatiues haue been in auncient time so firmely annexed to the Septer and estate roiall that by the ciuill Law such things which are properly called iura maiestatis by the common Law iura regalia cannot be seuered from the regall dignity therfore Baldus calleth them g sacra sacrorum and Cynus indiuidua h the inseparable incidents of a kingdom And by the ciuil Law such things can not be seuered from the princely Diadem neither can any man prescribe in them i Bald. con 174. lib. 3. et con 193. eo And so it is said in our Law that where the King hath any commoditie in the right of his Crowne as if he haue a Mine conteining in it gold or siluer by the graunt of the land in which it is conteined the Mine doth not passe because he hath that by his prerogatiue royall and they be two seuerall thinges and of diuers degrees k 10. Elizab. Com. Informacion pur Mines 310. per Wray And whereas the Priorie of Wenlocke was one of the auncient Priories which were of the foundation of the Crowne and the King graunted the said Priorie in ample words yet
§ Sed natural instit de iu. na as I haue sufficiently shewed in my Direction to the study of the Law Cap. 7. 8. but onely of such thinges as belong to them by the Ciuill law yet by the opinion of the later Ciuilians this is helde to bee no law but that the Princes haue for speciall causes free disposall of their landes and goods as Decius fully proueth k Deci. Cons 209. in casu 2. 69. consultus 390. quoniam 519. visis 557. accurate and this later opinion seemeth to bee more reasonable and more consonant to the truth for first though the distinction of demesnes and the propertie of goods be parcel of the law of nations yet the meanes wherby they are acquired are prescribed by the ciuill and common lawe so that they are not altogether parcell of the law of nations l Bal. â—a in l. omnes C. Si con ius vel vtilitat pub Againe the right of demesne and property is not alike in all nations m Herodot li. 4. Strab. lib. 11. Arist lib. 2. polit Tacit. de mor. Germa Caes lib. 4. 6. de bel Gal. but is moderated and ordered by the lawes of particular coÌ„mon weales But suppose that the king wil take away from any of his subiectes the right and power of vsing and pursuing an action for the recouery of their lands goods chattels or dammages Surely this is permitted by no law but by the ciuill n l. 2. C. de prec imp off and common law expressely prohibited for the king cannot grant to any person that he shal not be impleaded or sued in this or that action though his highnesse may graunt that I. S. for trespasses or any thing done wrongfully in his mannor of Dale shal hold conisance of pleas within the same mannor yet in this case he doth not take away the action of the partie but doth onely restreine him to bring his actioÌ„ in a certain place o 8. H. 6. 19. But here it may be obiected that a king or absolute monarch may p li. vlt. C. de consul without cause seise the lands goods of his subiects for it is plaine that a king hath more power ouer his subiectes then the father hath ouer his children but by the ciuil law the father may take away the goods of his children when hee will q l. placet 79. D. de acquir haere l. acquirit 10. D. de acquir re do therefore the king may take away c. To this reason grounded vpon the ciuill lawe I do thus answere that by the law of nations kinges haue not such an indefinite power ouer their subiects as fathers by the ciuill law haue ouer their children for by the law of nations kinges were chosen and ordeined at the first for the safegard and protection of the lands goods persons of their subiects so that they may not without cause bereaue them of their goods and therefore there is a good rule in the ciuill law that in priuatorum agris nihil ne publico quidem consilio cum ipsorum iniuria capi ius est r l. Venditor 13. D. de com praed And to that purpose Cicero speaketh well Videndum erit ei qui rempub administrabit vt suum quisque teneat neque de bonis priuatorum publice diminutio fiat and for this cause God did appoint a certain portion of land to euery tribe of the Israelites Å¿ Deutero 17 and by reason of a priuate title Naboth would not sell or chaunge his vineyard with Achab t 1. Reg. 21. and in the inauguration of the king of Hungarie this was exacted of him by oath vt iura regni integra conseruaret u C. in tellect 33. ex tr de iureiuran And in the ciuill law it is said Qui pleno iure Dominus est alienandi dissipandi disperdendi ius habet a l. 7. cod de relig l. sed etsi l. 25. §. consuluit D. de haeâ—ed petit And againe suae quisque rei arbiter ac moderator est b l. in remandat 21. C. de mand So that it is euident that without cause the propertie which subiectes haue in goodes and landes may not bee altered by their prince And therefore wittily sayeth D. Gentilis that they which argue to the contrarie do not dispute or drawe their arguments ex castis fontibus Philosophiae aut ex ipsis iurisprudentiae riuis sed escholis sophistarum hallucinati sunt Theologi adulati sunt iurisconsulti qui omnia principibus licere asceuerarunt c Alberic Gentil Dec. 1. disput 2. disput I would not be mistaken in this Chapter sithence I hold an indifferent course betwixt prince and people neither consenting to them which say that princes may seise the lands and goods of their subiects without cause nor to them which thinke that they may not seyse their lands and goods for any cause but my resolution is and the summe of this discourse is if it bee diligently and impartially obserued that princes may lawfully claime and take to their owne vse the lands and goods of their subiects for the causes abouesaid and prescribed by lawe and not otherwise and by this word Princes I meane none but absolute Monarches for the law of nations alloweth this prerogatiue to none other And therfore I do greatly like of that saying of Hipocrates vrged in the ciuill law Lex est rerum omnium domina quia scilicet ciuitatis cuiusque ciuium singuloruÌ„ patrimonium constituit definit tuetur Lex sola dominiuÌ„ rerum confert sola dominij acquirendi modos constituit citra quos acquiri nullius rei dominium potest f §. 2. de bon posses apud Vlpi eo tit reg 19. This foundation being laid I hope my assertion may firmely stande that the law of England in giuing to the Queene the lands and goods of subiects for some peculiar causes is iust and reasonable as when a true man is pursued as a felon and he flieth and waiueth his owne goods these are forfeited as if they had beene goods stolne g 29. E. 3. 29. 37. H. 8. Br. Estray 9. Stam. fol. 186. a. And so if a man be outlawed of felony or treason he shall forfeyt all the landes tenements which he had at the time of the felony or treason coÌ„mitted or at any time after as well as if he had beene attainted by verdict h 28. H. 6. 5. howsoeuer M. Parkins holdeth opinion that attaynder by outlawrie shall haue relation to the exigent as to the landes and tenements so that a feoffement of land or a graunt of rent made before the exigent awarded by him that is attainted in such manner is good in his conceit but he saith that as to an attainder by verdict that it shal haue relation to the time of the felony done according to the supposall of the inditement as to
consent hath been the ground of Matrimoniall contractes may appeare by the vsuall course and practise of nations Wherefore Virgill exclaymeth against Romulus for marrying the Sabine women against their willes and accompteth it rather a rape then a mariage Raptas sine more Sâ—binas sine more that is contrarie to the custome of nations e Virgil. 8. Aeneid And Propertius inueyeth against him for this more vehemently ee Propert. 2. Eleg. 6. tu criminis author Nutritus duro Romule lacte lupae Tu rapere intactas docuisti impune Sabinas Yea diuines Tertullian and S. Augustine haue sharpely reprooued this fact of Romulus f Tertul. de de spect et adu val and Cyprian agreeth vnto them reprehending Romulus in this maner Vt Matrimonium facias rem concordiae per discordiam auspicaris rapis faerocis fallis nuptiae tibi sunt rupta hospitij faedera g Cypri lib. 4. de ido na By the Ciuill Law mariage may bee concluded by an oath which beeing but a contract it called sponsalia de futuro h ff de verb. sing l. verbum erit And so in auncient time the Law seemed to be as may appeare by these wrested words of Cydippe to Acontius Iuro tibi sanè per mystica sacra Dianae Me tibi venturam comitem sponsamque futuram i Ouid. in epistol The mariage betwixt Dido and Aeneas was by consent accorded by consent prosecuted by consent executed beeing witnessed and celebrated coelo tonante and no otherwise k Virgil. lib. 4. for the Phrygian and Tyrian Lordes followed their hunting whilest the great hound of all caried away the hare And the mariage betwixt Martia and Cato wittily described by Lucan had no publique attestation but the presence of Brutus onelie Pignora nulla domus nulli coiere propinqui Iunguntur taciti contentique auspice Bruto l Luca. lib. 2. But I would not be so vnderstood as though I should haue this meaning that nothing els is requisite to the perfection of mariage but onelie the bare consent For to explane my meaning more at large I hold that euen by the Law of Nations consent is onlie the efficient cause of mariage but the materiall cause is corporum coniunctio the formall the bringing of the wife into the husbandes house et aquae et ignis interuentus and therefore in my opinion D. Hotoman is not iustly reprooued of D. Gentilis m Alberic Gentil lib. 3. lectio et epistolar c. 6. for holding that this deductio in domum is the formall cause of mariage for though the Emperour say n L. 15. D. de cond et dem vxor fuisti deductio in domum ostendit so that by the opinion of Gentilis this deductio shall be onely a proofe and argument of the mariage no substantiall forme of it yet by his fauour this is nether logike nor reason for may not an argument be drawne à causa formali and because anima is a signe corporis animati for a man may reason thus animam habet ergo est corpus animatum therefore shall not anima be the forme of a lyuing bodie But if we will be ruled by Iustinian the opinion of D. Hotoman seemeth in this to be neerer to the truth though his learning and iudgement if I haue any iudgement be farre inferiour to the worthines of Gentilis yet I acknowledge them both to be worthy men et vitulo tu dignus hic But to examin the rule of the Emperour which before I spake of non impletur nuptiarum conditio nisi nuptiarum accedat festiuitas o L. sancimus 24. C. de nup. it seemeth that there must be necessarilie deductio in mariti domum as may appeare by the auncient custome of the Romanes in their mariages which is briefely glaunced at by Virgill in these wordes Sparge marite nuces p Virgil. in Bucolic to which there is a custome in some part of England somewhat correspondent which hath been much vsed namely that the husband breaketh a cake ouer the head of the wife as soone as she is within the threshold of his house which custome and the like I will neither commend nor discommend but will onely censure them somewhat agreeably to Senecaes q Augusti lib. de ciuit dei 6. c. 10. ex Senec. lib. de super stiti et matrimon censure of certaine pointes of the ciuill theologie of the Romaines Haec omnia populus seruabit tanquam coÌ„suetudine recepta non tanquam deo accepta And though Gentilis presse Hotoman with this obiection out of the ciuill Law that the mariage may be celebrated by an other viro absente but not muliere absente r l. 5. D. de ri nup. Yet that is no ordinarie course of mariage but extraordinarie As when the parties cannot conueniently come together as being seuered by Sea which hapned lately in the case of Iames king of Scots who was maried to Anne the sister of the king of Denmarke by a substitute or enter-deux as Chythraeus reporteth Å¿ Chytr lib. de reb orb arcto ab anno 1580. vsque an 1590. Eyzinger in thes princip And the cannon Law which D. Gentilis too hastilie calleth irrationale erroneum caecum auarum totum t Alberic Gentil lib. 1. lecti et epistolar c. 11. will shew this difference vnto him for it maketh two sorts of mariage both lawfull and perfite yet the one it tearmeth verum the other praesumptum Verum Matrimonium is thus defined Which is made betwixt lawfull persons by apt wordes all impediment of law remoued The other is thus defined which by the interuention of some other is celebrated betwixt lawfull persons by the arbitrage of some others and there doth not immediatly succeede copula carnalis u Gof in tract de contrah But in deed these verie wordes duxisse vxorem which signifieth the complementall act of mariage doth sufficiently import the necessitie of the forme of mariage aboue mentioned The efficient materiall and formall causes of mariage haue been aboue shewed The finall cause as all will agree is the propagation of children x l. si vicin 9. c. de nup. and the restraint of wanton lust If this assertion should be examined by the ciuill Law it might receiue great disputation varying and straying wholie from scripture the authentike of Religion yet wholie for consent for the ciuill Law is so strange for consent that it is positiuely set downe by a great Ciuilian That if a man doe vse too familiar acquaintance with a gentlewoman that setteth not her bodie to sale vnto him that this is not concubinage but mariage a Modestin in l. in liber 24. D. de rit nup. An other Ciuilian holdeth that a woman to whom one hath shewed an husbandlie affection ought in continuancc of time to be accompted his wife b Papin in l. donation 31. D. de donat To
fault when it is publikely done it is accounted a vertue the greatnes of crueltie not the reason of innocencie doeth purchase impunitie and pardon And fitly to the same purpose though not purposely for the same Lawes haue agreed to sinnes and that is admitted to bee lawfully which is publike h Cypr. 2. ep 2 And Seneca againe Small theftes are punished great are caried in triumph i Senec. ep 88 Tertullian saith that wrong is proper to warre and as farre as his authoritie stretcheth prohibiteth battaile to Christians k Tertullia adu Iud. but sithence the time of Tertullian these opinions haue beene confuted of Diuines Ciuilians and Philosophers for warre is according to lawe though many mischeefes do steigne it for there doeth ensue good of it when rebels are reduced to obedience and when peace is accorded and that whose end is good is also good it selfe for the end of war is peace to which and to common equitie without bloudshed and these iniuries of warre men do seldome attain Neither doth Seneca disalow all warres for he praiseth the warres of Hercules l Senec. lib. 1. de benefi as to Tertullians saying hee did speak it vpon the consideration of such things which are vniust and are often done in warre not impeaching that which is vsually done of them that be iust to Lactantius Cyprian answere may be made after the same sort Notwithstanding I would not haue this poyson of war admitted into any commonweale vnlesse it be to expell an other poison nor this furie to be let loose vnlesse it bee to coole the furie of others or vpon like necessitie But now let vs sift the precedent definition of warre more narrowly and consider how warre may bee iustly maintained on both sides which both Diuines Ciuilians m Conua reg peccat §. 18. Soto 5. de iust q. 1. 7. view relect haue thus expounded saying that it may bee truely and verily iust on the one side on the other by ignorance as by the voice of God the Iewes did iustly moue warre against the Cananites and the Cananites did iustly resist the Iewes not knowing God his will and defending themselues and therefore it was well said of Pope Pius the second to the embassadors of the king of Hungarie who did speake against the Emperour that he thought the king of Hungarie would not depart from right and reason and hee knew likewise that the Emperour was a louer of iustice howsoeuer nowe they did discent by warre and that neither of them thought that hee had an vniust cause of warre n Com. Pij 2. lib. 3. Cicero speaketh fittely to this purpose of the faction of Caesar and Pompey There was some obscuritie there was variance betwixt two excellent Captaines many doubted what was the best many what was expedient for them many what was decent some what was lawfull o Cice. pro. Marcel but the Ciuil law doth attribute the rightes of warre vnto both parties the things that be possessed by warre it giueth to the possessor captiues it maketh bond seruants to both Now it is conuenient to discend into a more particular consideration of the causes of warre which must not be attempted onely vpon an immoderate desire of enlarging dominions or increasing riches To assault thy neighbours by warre saith Augustine and to vexe people that doe thee no hurt through an ambitious desire what is it els but a great robberie p D. August in 4. de ciuitat Dei Therefore the saying of the Barbarian was as barbarous as himselfe That is most iust in prosperous fortune which is most forcible and that it belongeth to a master of a familie to keepe his own but to a king to contend for that which other men possesse But Attila which did not attend any cause or occasion of warre did therefore worthely dedeserue the hatred of all men as being an enemie to q Tacit. Ana li. 15. all men r Ior. de o◠but the Turkes do otherwise who most commonly pretend a cause of warfare and therfore Soliman when hee endeuoured to winne the kingdome of Cyprus from the Venetians beganne to consider what pretenses he might make for the taking of armes because it is not as one saith the custome of the Ottomans vpon a rage or heate of mind to enterprise warre ſ Natal com lib. 1. It is a beastly part hauing receiued no iniurie to commit slaughters of men and depopulations of cities and countries therefore princes many times pretende causes of war where in truth there is no cause And Moyses sought for a good cause of quarrelling with the Emorites though hee had a cause absolutely iust namely the commandement of God For when by vertue of the same commandement he was to make warre against the Emorites vtterly to destroy them hee sent messengers to their king which might signifie thus much I will passe by thy land we will not turne into thy field nor vineyard nor drinke the water of thy well wee will keepe the right path vntill we be past thy borders Therefore let there be a cause of warre and let it be no small cause for parum a nihilo vix distat And as Propertius saith Frangit attollit vires in milite causa Quae nisi iusta subest excutit arma pudor Iust cause of warre is the defence of our countrie our selues our friends our fellowes goods A defensiue warre is grounded vpon the lawe of Nature therefore C. Pontius the Captaine of the Samnites said well That warre was iust vnto them to whom it was necessarie and that their armes are honest which haue no hope of safetie but in weapons Likewise it is a iust warre which is taken in hand for the recouerie of thinges wrongfully and by force taken from vs by our enemies t c. iustum q. 2 August q. 10. sup Iosu lib. 2. or that the authors of the iniurie at least may be yeelded vp into our hands to bee punished if they did it not by publike decree but by priuate malice therfore Dauid after the death of Saule did maintain warre against Isboseth the sonne of Saule who did go about to vsurpe the kingdome of Israel which God by Samuel the Prophet had giuen vnto Dauid u 2. Reg. c. 2. and Romulus did therefore fight against the Sabines because their Dictator Cluitius would not restore the things taken from the Romanes by violence nor yeelde vp into his handes them that did wronge a Dionis Halicarn lib. 3. And the reuenge of an iniurie most despightfully done is likewise a good cause of warre Therefore Dauid did iustly wage battell against the King of the Ammonites for the disgrace and abuse offered to his ambassadors b 2. Regu c. 20 duob sequenti and that prince hath iust cause of warre who pursueth by armes rebelles and such as swarue from obedience c c. auctor it vs. quaesti 6. cap. scir 103.
namely when one of the league is to helpe the other when he suffereth iniurie but not when hee offereth iniurie for it is a good rule in the ciuil law rei turpis societas nō intelligitur c l. 5. 7. vbi Bal. pro sor Therfore he that couenanteth to defend a castell or farelet is not bound if warre bee raised through his fault to whome hee made the couenant d Alexand. 3. cons 114. and Castrensis auoucheth that this ought to be vnderstood of a necessarie not of a voluntarie warre But this is cleare and certaine in this case that he that is bound so to defend is bound to defend by weapons e Deci. li. 59. de reg iur 3. cons 117. and he that is bound in such case personally to helpe an other is much more bound to helpe him with money f Alci 3. consi 2. yet that must be thought to be onely then required at his handes when the other can not prouide for his owne necessities Now it is to be considered whether eyther of the parties may depart from the league And I thinke vpon iust occasion such a departure may bee made Faedus non violatur si ab eo disceditur ob rationem iustam g l. 14. 15 16. pro soc But this must not bee for a light cause for light causes are alwaies arising and all contracts would bee most weake if for a small and worthlesse cause it should be broken or not regarded But a prince may safely depart frō the league if some part of the league bee broken by the other partie h Cagnol l. 41. Cod. de trans and leagues as all other contractes bee indiuidua i Deci. Cons 265. cep 455. 461. for there be alwaies exceptions vnderstoode in euery league as these for example Nisi causa superueniat nisi culpa accesserit eius cui promissio ista fit pactio foederis rebus sic stantibus Thus we haue spoken of warre and peace generally now it remaineth to discourse of the particular circumstances of these two principall points and moments of a common weale 3 Before warre be maintained by one prince against an other it behooueth him that commenceth war to denounce the warre solemnly by ambassadors and by that meane to certifie him of his purpose For this course is prescribed by the lawe of God k Deut. 20. Ioseph 5. antiquitat Aug. iudic q. 49. And it was practised by the Grecians Barbarians and most of all by the Romaines l Aerod lib. 5. Xenop Ages Diony 2. Liui. 1. Whereupon Cicero saith Nullum bellum iustum haberi videtur nisi nuntiatum nisi indictum nisi repetitis rebus m Cice. 1. de offi n. c. 1. 23. q. 2. Which saying is cited and auowched in the Canon law n c. 1. 23. q. 2. And this is likewise affirmed in the ciuill law o l. 24. de capt And therefore it is held by the interpreters of the ciuill law Proditoriè agit qui non indictum mouet bellum p Ias Bald. l. 5. de iust l. 4. c. de obs p. And Varro reporteth that iust warres did cease to bee waged in his time because they ceased altogether to bee lawfully denounced q Var. lib. 4. de ling. Lati. For the auncient Romanes did not affoarde a triumph to anye vnlesse the warre were solemnely proclaymed r Sigon de anti iur pro vin And Alciat accompteth this the law of nations ſ Alcia 14. de si cor And because warre is a publike contention if in priuate causes summons and citations be vsed surely in vndertaking warre denuntiation ought to bee vsed t Bald. l. 12. de serui vrb praed for which cause the Romanes were in this point so precise that they did often denounce war when they needed not euen when the law of nations was apparantly violated by other nations so that they might iustly haue enforced them as the rule of the common law is to haue taken notice of their owne wrong In this sort they proclaymed warre against the Senones who had slayne their ambassadors against the Illyrians and Tarentines who had contumeliously abused them u Liui. 12. 20. And this is noted of them in the case of the Saguntines Non statim ad arma procurrunt dum prius more legitimo queri malunt x Flor. lib. 2. So Liuie reporteth of the Frenchmen Erant qui extemplo Romam eundum censerent sed vicere seniores vt legati prius mitterentur questum iniurias postulatumque vt pro iure gentium violato Fauij dederentur a Liui. lib. 5. Wherefore Xerxes doeth greatly inuey against the Graecians because they did not first aslay to end their cōtrouersies without weapons b Herodot l. 7 and for the same cause Ioab is iustly reproued in the scripture of the wise woman c 2. Sam. 20. neither was hee vnwise in this pointe that said Omnia prius experiri verbis quam armis sapientem decet Qui scis an quae iubeam sine vi faciat d Ter. in Eunuch Yea euen Tullus a most warlike man is of this opinion Quae verbis componi non possunt armis decernantur e Dionis li. 3. So Theseus a notable Captaine saith in Euripides Si oratione non persuadeo bellum laudo Vade dic Creonti Theseus amanter repelit a te cadauera hic primus sermo si nihil efficis secundus vt f Eurip. in Supp me armatum expectet And so Theodorius said truely to Alaricus Tunc ad arma cum locum apud aduersarium iustitia non potest inuenire And againe Quid opus homini lingua si causam manus agat armata g Cassiod 5. Var. 1. 7. Thus it is euident that by the lawe of nations warre should be denounced 4 Somewhat must be spoken of truce which is thus defined in the ciuill law Induciae sunt cum in breue et in presens tempus conuenit ne inuicem se lacessant h lib. 19. de capt And Gellius maketh mention of a truce which was made for an houre onely i Gel. li. 1. c. 25. Vergill calleth truce pacem sequestrā because it sequestreth as it were and suspendeth war for a time Varro tearmeth it Ferias belli warres holiday k Virgil. 11. Aenei In that it is called sequestra pax it is to bee noted that it is not simplie a peace In the Cannon lawe it is called tregna it is of this nature that by it warre is not ended but deferred onely and so it is middle betwixt warre and warre euen as sequestration is middle inter duos altercantes betwixt two parties that are at variance But peace properly so tearmed is of another nature because it is perpetuall and vnder the name of peace truce is not comprehended no though truce be concluded for a long time as the Veientines made a truce
Alciat hath obserued f Alci l. 27. de V. S. neyther am I of the minde of Phillip Commineus who denieth generally that princes may command tributes ff Philip. Commi comment for I make no doubt but a conqueror may commaund tribute and all that come in vnder the conquerour by the law of nations and therefore the Romane generall saith vnto the French men Iure victoriae tributum vobis addidimus g Tacit. 4. histor And Iustinian doth commaund that tributes may be imposed vpon the Zani being conquered vt victos se agnoscerent and the Iewes though they had beene clearly conquered for their citie was sacked their temple possessed their Sanctum sanctorum looked into for as Florus saith Impiae gentis arcanum illud vidit sub aureo vti coelo h Flor. lib. 3. histor yet craftily after their manner because they would haue Christ to haue challenged their earthly kingdome by that mean to draw him into hatred with Caesar they demaunded of him whether it were lawful to giue tribute to Caesar but he that alway professed Regnum meum non est ex hoc mundo gaue them a bone to gnawe Date quod est Caesaris Caesari and quod Dei Deo i Mat. 22. for in deed tributes are allowed by the law of God k Deut. 20. therefore Cicero saith excellently that tribute is victoriae praemium poena belli l Cicer. in verr 5. And Orosius almost as excellently that it is vinculum pacis monumentum belli m Oros lib. 5. c. 1. And though the Spaniards Germanes and English doe seeme rather to offer a tribute to their Monarch then the Monarch to commaund it for the curtesie of England is great the clemencie of their princes greater yet for England thus much I dare speake vnder the rule of modestie protest that sithence the vniuersal conquest of William who first commanded and imposed tribute vpon this land for conquerours may commaund tribute and subsidie haue beene as iustly both by the law of God and the law of nations payed in England as in Iewrie yea and iustly continued as a remembrance of a conquest wherefore it is diuinely said of that great diuine Tertullian Agri tributo onusti hominum capita stipendio censa notae sunt captiuitatis Lands charged with tribute polles with taxe are signes of conquest n Tertull. i◠Apolog. Bodinus in my mind giueth good counsell to princes to set a great impost vpon such thinges as corrupt the manners of their subiectes as namely vppon these compounded perfumes these paintings of the face these Margarites these Marchpanes Wines o Bodin lib. 6. de rep c. 2. and Tobacco but vainely and contradictorily to himselfe doth Bodinus say that Haec principi prohibenda non sunt nec si velit possit prouing it out of the fifth booke of Plato because such is the nature of men that these things quae sanctissime vetantur auidiùs expetant By this reason there could bee no fault nor default forbidden as for Bodinus I excuse him thus Nullum fuit magnum ingenium sine mixtura dementiae which Seneca obserueth oo Senec. in fin lib. de ira And as to Platoes authoritie this is but errare cum Platone Plato did erre with Plato Sometime hee did erre as in the discourse of intemperate banquets in the brutish lust inward itch of Alcibiades in his fond vnclean fables of Athenaeus hee is more sharpely noted to bee inuidissimus rabiosé male dicentissimus mendacissimus improbissimus ridicule ambitiosissimus p lib. 4. 5. 11. by his darke amphibologicall writing he is said to be the cause of the death of that thrise-worthy Romane M. Cato q Plut. in Cat. whose death at Vtica gaue him his dismall name and Solons lawes though hee were his ancestor a great deale wiser and farre more imployed in matters of estate could not content him but hee must haue visioned lawes such as were neuer vsed sithence his time and therefore as it is likely neuer shall be vsed For what is it that hath beene that that shall bee and what is it that hath beene done that which shall bee done And there is no new thing vnder the sunne r Eccleast c. 1. and that that shal be hath now beene rr Eccles c. 3. But to come to my purpose again and to another prerogatiue of princes Princes likewise maintayne their realmes and their estate royall by importing and bringing in such things as be of value or price Wherefore Liuie noteth of Carnileus Consul ſ Liui. lib. 9. that all the brasse and all the siluer he brought into the treasurie and he saith of Fuluius that hee brought out of Spaine into the treasurie an hundred fortie two thousand pound of siluer and an hundred twentie seuen thousand pound of gold and of Camillus t Liui. li. 3. that when hee had ouercome the French nation beyond the Alpes hee brought in a hundred threescore and tenne thousande pounde of siluer and of brasse three hundred twentie thousand and of Flaminius u Liui. lib. 34. that he brought out of Greece eighteene thousande pounde of siluer in bullion and two hundred and seuentie thousand of plate fourescore and foure thousand shillinges and three thousand seuen hundredde and fourteene poundes of golde a buckler of golde entier Of Phillippes money a hundred fortie and fiue thousande pounde and an hundred fourteene pounde of golden crownes which the cities bestowed on him And Paulus Aemilius uu Liui. lib. 45. that president of a capitaine when he had surpised Macedonia brought into the treasurie a thousand and two hundred sestertians And Caesar hauing ouercome Fraunce foure thousand sestertians Fabius Maximus x Liui. lib. 27. brought in fourescore and three thousand pound of golde beside great quantitie of siluer And Scipio commonlie called Asiaticus y Liui. lib. 36. 38. 39. did bring in after his victorie had against Antiochus two hundred thirtie and three poundes in golden crownes two hundred fortie and seauen thousand poundes of siluer of Phillippes rials a hundred fortie thousand and a thousand and twentie foure poundes of gold Who can number that which Cato brought from Cyprus a Flor. lib. 3. that which Pompeie b Lucan lib. 3. brought from the Easterne Southern warres These by doing thus did make that common wealth great others by doing the like may make others like And Alexander the great did replenish all Greece with siluer when hee had atchiued the victorie of Darius and the Persians Looke vpon my whole armie said he they which before had nothing but coates of steele do now lye in siluer beds c Curti. lib. 8. And much did Anniball enrich the Carthaginian treasurie when after his victory at Cannae he sent into the Senate of Carthage d Liui. lib. 23. three strike of golden ringes and so compassed them by measure though
late king of Spaine did to certaine Flemings which came to him as embassadors though they were neuer vnder his legeance or subiection their estates hauing bin free frō time immemorial as al histories of account do with clear voice pronoūce And Dionisius did imprisō the embassadors of the Sir acusanes because that city hauing driuen the tirant into his tower did set themselues at libertie e Plutarch in Dio. but Buchanan seemeth to erre which compareth two iust princes nay such as himself confesseth to be most iust f Buch. in lib. de re Scot. namely Hiero of Siracuse and Cosimo Medices Duke of Tuscana to two great theeues which did iustly diuide the pray did rule well though they came vniustly by it for how was Cosimo a robber if hee did vndertake the gouernement of that citie which did willingly offer vnto him the gouernment he shold perhaps haue suffered it to be subdued by some forreigne Lord or els haue left the regiment to others who would haue hazarded that ship vpon rocks and tempests whereas that excellent man knew well how to keepe the ship in the hauen but it seemeth that the law of armes is not bee kept to an vsurper and therefore Constance the Emperour could not iustly bee reproued if hee had punished these embassadors which Iulianus being consorted with him in the Empire by the French armie did send vnto him as he threatned hee would for both Iulianus and the armie were rebels g Amm. li. 21 But this is to bee vnderstood onely of such rebelles and such vsurpers as haue beene sometimes in subiection and vnder the leigeance of some absolute Monarch for they which doe onely breake league or friendship or ancient entercourse are not to bee excluded from the right and benefit of embassage h Alber. Gentil l. 2. de legat c. 7. for how often did the Volscians Latines Spaniards and many others reuolt from the Romanes and yet sent embassadors to them without hurt or fear of danger i Liui. lib. 5. 6. 29. c. Appi. lib. 1 de bel ciuil they may lawfully claime the right of embassage because they had and enioyed it before their reuolt but otherwise it is of subiects because they had it not so neither is it reason that they should gaine any new right or haue any aduauntage by their crime or offence The thirteenth Chapter That by the law and practise of nations warre is not to be maintained against infidels onely because they are infidels and that princes in their realmes may inflict punishment for straunge worships IF religion be of that nature that no man ought against his will to bee cōpelled vnto it by force of armes and that be tearmed a new and vnusuall preaching which exacteth faith by blowes then it followeth that such war is not iust a c. 35. 23. q. 5. c. 1. 3. disti 45. c. 3. de babt It is a point of irreligiousnes saith Tertullian to forbidde the opinion conceiued of the deitie and that it shall not bee lawfull for mee to worship whom I would but I shall bee constrained to worship whom I would not b Tertul. Apolog. et ad Scap. Faith is to be perswaded not to be enforced saith Barnard c Barn cantic ser 66. And Hilarie saith that by a newe example men are compelled by armes to beleeue d Erasm pref Hill So Lactantius saith that religion must be established by words not by swords f Lactant. 5. Iustin 20. 21. so Arnobius saith to his aduersaries Because ye can do much by force and weapons doe ye therefore thinke that ye do exceed vs in the knowledge of the truth g Arnob. adu ge 4. Ye haue heard authors now heare reasons That which is against the nature of a thing cannot tend to the effecting or preseruing of that thing but to the destroying of it That which standeth by his owne strength is not to bee vpheld by other supporters This opinion of not mouing armes for religion Franciscus a Victoria a verie learned man affirmeth h Victor relect to bee allowed of all writers none exempted therefore he saith that this could bee no iust cause to his countrimen the Spaniardes to maintaine warre against the Indians And Didacus a Couarruuia a Spaniard likewise a learned Lawier i Couarer reg pre §. 10. doth vouch many Canonistes and Diuines which doe teach the same Baldus also affirmeth that it is not lawful to wage battell against infidels liuing with vs in peace and not being iniurious vnto vs k Bald. lib. 5. de iustir yet Didacus saith that Aquinas is of a contrarie opinion l Couar vbi supr And the fathers of the councell of Toletum did make a decree touching the afflicting of hereticks by warre which is recorded in the cannon lawe m c. 3. de her c. 5. dist 45. And Barnard mouing Lewis king of Fraunce against Asia saith Can any war seeme more iust to the then that which is most holy The Lacedemonians also amongst other obiections made this a cause of their warre amongst the Athenians and said that they were prophaners of religion and the Athenians did on the contrarie parte charge the Lacedemonians with this that they did drawe them that yeelded themselues out of the temples and killed them n Thuc. lib. 1. But surely such pretenses are but colorus of auarice and crueltie for there is no religion so barbarous which moueth vs to slay men of a contrarie religion o Na. Co. li. 1. King Ferdinand entitled the Catholike did couer all his dishonest desires with the vaile of religion as Guicchiardine noteth p Guicc li. 12. And Charles the Emperor the nephew of Ferdinād did not garnish his ambitious enterprises with any other colour q Iou. lib. 30. But the warres of the French and other people of Europe which did relieue the Christians vexed of the Turkes and reuenging the iniuries done to Christ haue beene liked allowed of r Couar reg pecc §. co but that is an other question of defensiue war which without all doubt is lawful if it be maintained by them that may vndertake the defence lawfully But now the question is whether only by pretence of religion war may be vndertaken and this hath bin denied and the reason is ſ Alber. Gentill lib. 1. de iur bel c. 9. for that the cause of religiō is not betwixt man man but betwixt man and God neither is the right of any man preiudiced for a diuers religion because the bond of religion is onely to God it is a law betwixt God and man But here wee doe not speake of such which are altogether voide of religion and liue rather the life of beastes then of men For they like pirates the common and dayly enemies of all men are to be pursued by war to be brought by armes into compasse and to the order of ciuill