hym no disobedience / for a disobedience implieth a knowelege of that he shulde haue obeyed vnto ¶ Student It semeth iÌ„ this case that he shulde be coÌ„pelled to take knowlege of the sute at his peryll / for sythe he hathe atteÌ„pted to offeÌ„de the lawe it semeth reasoÌ„ that he shal be compelled to take hede what the lawe wyll do agaynst hym for it / and nat onely that but that he shulde rather offre amendes for his trespasse than for to tary tyll he were sued for it And so it semeth the ignoraunce of the sute is of his owne defaute / specially syth iÌ„ the lawe is set suche ordre that euery man may knowe if he wyll what sute is taken agaynst hym / and may se the recordes therof whan he wyll / so it semeth that neyther the partye nor the lawe be nat bounden to gyue hym no knowlege therin And ouer this I wolde somwhat moue ferther in this mater thus That though the accioÌ„ were vntrue / the defendauÌ„t nat gylthy / that yet the goodes be forfeyted to the kyng for his nat apparauÌ„ce in lawe also in conscieÌ„ce / that for this cause / the kyng as souereyne hed of the lawe is bouÌ„den of iustice to grauÌ„t such writtes and such ê“cesses as be oppoynted in the lawe to euery ê‘sone that wyll complayne be his surmyse true or false / there vpon the kynge of iustice oweth as well to make processe to bryng the defendaunt to answere whaÌ„ he is nat gyltye as whan he is gyltie / thaÌ„ whaÌ„ there is no maxime in the lawe that if a man be outlawed in suche maner as before apê‘eth that he shall forfayte all his goodes to the kynge / maketh no excepcioÌ„ whether the accioÌ„ be true or vntrue / it semeth that the sayd maxime more regardeth the generall ministracion of iustice than the particuler ryght of the party that therfore the property by the outlawry by the sayd maxime ordeyned for ministracion of iustice is altered and is gyuen to the kynge as byfore appereth / that both in lawe and coÌ„science as wel as if the accion were true And than the ê‘tie that is so outlawed is dryuen to sue for his remedy agaynste hym that hath so caused hym to be outlawed vpon an vntrue accioÌ„ ¶ Doct. If he haue nat sufficient to make recompence or dye before recouere can be had / what remedy is than ¶ Student I thynke no remedy / and for a ferther declaracion in this case and in suche other lyke cases where the propertie of goodes maye be altered without asseÌ„t of the owner it is to coÌ„sydre that the ê“pertie of goodê be nat gyueÌ„ to the owners directly by the law of reason nor by the lawe of god but by the lawe of man / is suffred by the lawe of reason by the law of god so to be For at the begynnyng al goodê were in comoÌ„ / but after they were brought by the lawe of man into a certeyne ê“pertie so that euery man myght knowe his owne thaÌ„ whan such ê“pertie is gyueÌ„ by the law of maÌ„ the same lawe may assigne such coÌ„dicioÌ„s vpoÌ„ the ê“pertie as it lysteth / so they be nat agaynst the lawe of god ne the lawe of reason / and may lawfully take away that it gyueth / appoynt howe longe the ê“perty shall continue And one coÌ„dicioÌ„ that goeth with euery ê“perty iÌ„ this realme is if he that hathe the ê“perty be outlawed accordyng to such proces as is ordeyned by the lawe / that he shal forfayte the propertie vnto the kyng / and diuerse other cases there be also wher by propertie in goodê shal be altered in the lawe and the ryght in landes also without assente of the owner / wherof I shall shortely touche some without laynge any aucthorite therin / for the more shortnes Fyrst by a sale in open marked the propertie is altered Also goodes stolen and seased for the kynge or weyued be forfaite oneles appelle or enditement be sued Also strayes if they be proclaymed and be nat after claymed by the owner within the yere be forfayte / also a deodand is forfayte to whome so euer the property was byfore / except it belonged to the kynge and shal be disposed for the soule of hym that was slayne therwith and a fyne with a nonclayme at the comoÌ„ lawe was a barre if claime were nat made within a yere as it is nowe by statute if the clay We be nat made withiÌ„ .v. yeres And al these forfaytures were ordeyned by the lawe vpon certayne consideracions whiche I omit at this tyme / but certeyne it is that none of theÌ„ was made vpoÌ„ a better coÌ„sideracion than this forfayture of outlagary was For if no especiall punisshemeÌ„t shulde haue ben ordeyned for offenders that wolde absent them selfe nat appere whan they were sued in the kyngê courtes many sutes in the kinges courtes shulde haue ben of smale effecte And sythe this maxime was ordeyned for the execucion of Iustice and as moche done therin by the comon lawe as policie of maÌ„ coulde reasonably deuise to make the partie haue knowelege of the sute and nowe is added therto by the statute made the syxte yere of kynge Hnry the .viii. that a writte of proclamacion shal be sued if the partie be dwellynge in a nother shyre / it semeth that such title as is gyueÌ„ to the kyng therby is good in coÌ„scieÌ„ce / especially seyng that the kyng is bounden to make processe vpon the surmyse of the playntyfe may nat examine but by the ple of the partie whether the surmyse be true or nat But if the partie be retourned .v. tymes called where in dede hf was neuer called as in the seconde case oe the laste Chapitre of the sayd dialogue iÌ„ latyne is conteyned / than it semeth the partie shall haue good remedy by petition to the kynge / specially if he that made the returne be nat sufficient to make recoÌ„pence or dye byfore recouere can be had ¶ Doct. Nowe syth I haue herde thyne opinion in this case wherby it appereth that many thyngê muste be sene or a ful and a playne declaracion can be made in this behalfe / seyng also that the plaine answere to this case shall gyue a great lyght to dyuerse other cases that may come by suche forfeyture I pray the gyue me a ferther respyte or that I shewe the my ful opinion therin / and here after I shall ryght gladly do it And therfore I pray the procede nowe to some other case ⧠The thyrde question of the student The fourth Chapitre STudent If a straunger do waste in laÌ„des that a nother holdeth for terme of lyfe without assent af the tenaunt for terme of lyfe wether may he in the reuercion recouer treble damages and the place wasted agaynste the tenaunt for terme of lyfe accordyng to the statute in conscience as he may by the lawe if
haue no couÌ„sayle / thaÌ„ to dryue hym to plede after the strayte rules formalities of the lawe that he knoweth nat ¶ Doctoure But what if he be knowen for a comon offender / or that the Iuges knowe by examinacioÌ„ or by an euident presumpcion that he is gylty he asketh sent wary / or pledeth misnomer or hath some recorde to plede that he can nat plede after the fourme Maye nat the Iuges in suche cases byd hym plede at his peryll ¶ Student I suppose that they may nat / for though he be a comon offender or that he be gyltye / yet he oughte to haue that the law gyueth hym / that is that he shal haue the effecte of his plees of his matters entred after the forume of the law / and also somtyme a man by examinacion by wytnes may appere gyltye that is nat gyltye And in likewyse there may be a vehement suspicion that he is gyltye that yet he is nat gyltye / therfore for suche susspicious or vehement presumpcious me thynketh a man may nat with conscieÌ„ce be put fro that he ought to haue by the lawe ne yet all though the Iuges knew it of theyr owne knowlege But if it were in appele I suppose that the Iuges might do therin as they shulde thynke best to be done in coÌ„science / for there is no lawe that byndeth them to iÌ„structe hym / but as they do comoÌ„ly the partyes of fauoure in all other cases but they may if they will byd them plede at theyr peryll by aduise of theyr couÌ„cell / if the appelle be pore haue no couÌ„cell the court muste assigne hym couÌ„cell if he aske it as they muste do iÌ„ all other plees / that me thynketh they are bouÌ„de to do in conscience though the appelle were neuer so great an offender / and though the Iuges knewe neuer so certaynly that he were gyltye / for the lawe byndeth theÌ„ to do it And some thynketh that there is great diuersite betwene an indicte an appelle And the reason why the lawe prohibiteth nat couÌ„cell in appelle as it dothe in an inditement I suppose is this There is no appell brought but that of comon presumpcion the appellauÌ„t hath great malice agaynst the appelle As whan the appele is broughte by the wyfe of the deth of her husbande / or by the sone of the deth of his father / or that an appele of robbery is brought for steliÌ„g of goodes And therfore if the iuges shulde in those cases shewe them selfe to instructe the appells the appellauntes wolde grutche thynke theÌ„ perciall / therfore as wel for the indeÌ„pnitie of the court as of the appelle in case that he be nat gyltye the law suffereth the appelle to haue couÌ„cell / but whaÌ„ that a maÌ„ is indicted at the kynges sute / the kiÌ„ge inteÌ„deth nothyng but iustice with fauour that is to the rest quietnes of hê faithful subiectê / to pul away misdoers amoÌ„g them charitably / therfore he wyll be contented that his iustices shall helpe forthe the offenders accordyng to the trouthe as feâ—te as reasone iustice may sufice And as the kynge wyll be contented therein it is to presume that his couÌ„sayle wyll be coÌ„tented And so there is no daunger therby neyther to the couâ—â— ne to the party / as I suppose for this treason it bega that they shulde haue no councell vpoÌ„ inditementes that hath so longe continued that it is nowe growe into a custome into a maxi of the lawe that they shall none haue ¶ Doctoure But if the iuges knowe of theyr owne knowlege that the induer is gylty / than he pledeth misnomer or a recorde that he was autre â—oytz arraynded acquyt of the same murdre or felony / the iuges of theyr owne knowlege know that the plee is vntru may they nat than bid hiÌ„ plede at his peryll ¶ Student I thynke yes but if they know of theyr owne knowlege that he were gylty of the murdre or felonye but that the plee was vntrewe they knewe nat but by coÌ„iecture or informacioÌ„ I thynke they mighte nat then byd hym pleade at his peryll ☞ The seconde question of the Doctoure whether the warrantie of the ionger brother that is taken as heyre bycause it is nat knoweÌ„ but that the eldest brother is ded / be in conscience a barre vnto the elder brother as it is in the lawe ⸫ The .xlix. Chapitre DOctoure A man seased of landes in see hathe issue two sonnes the eldest sone goth beyonde the see bycause a comon voyce is that he is ded the ionger brother is takeÌ„ for heyre / the father dyeth the ionger brother entreth as heyre alieneth the lande with a warantye dyeth without any heyre of his body / after the elder brother cometh agayne claymeth the lande as heyre to his father / whether shall he be barred by that warantye in conscience as he is in the lawe ¶ StudeÌ„t It is an maxime in the lawe that the eldest brother shall in that case be barred And that maxime is taken to be of as stroÌ„ge effecte in the lawe as if it were ordeyned by statute to be a barre And it is as old a law that suche a waraÌ„tye shall barre the heyre as it is that the enheritaunce of the father shall onely descende to the eldest sone And syth the lawe is so why shulde nat thaÌ„ conscieÌ„ce folow the lawe as well as it doth in that poynt that the eldest sone shall haue the lande ¶ Doctour For there appereth no resonable cause wherupon that maxime mighte haue a lawfull begynnynge / for what reason is it that the warantye of an auncestre that hath no right to the lande shulde barre hym that hath righte And if it were ordeyned by statute that one maÌ„ shuld haue a nother maÌ„nes laÌ„de no cause is expressed why he shulde haue it / in that case though he mighte holde the lande by force of that statute / yet he coulde nat holde it in conscience without there were a cause why he shulde haue it these cases be nat lyke as me semyth to the forfeture of goodes by an outlawrye / for I wyll agree for this tyme that that forfeture staÌ„deth with conscience bycause it is ordeyned for ministracioÌ„ of iustice / but I caÌ„ nat ê‘ceyue any suche cause here therfore me thinketh that this case is lyke to the maxime that was at the comoÌ„ law of wrecke of the see / that is to say that if a maÌ„nes goodes had beÌ„ wrecked vpoÌ„ the see that the goodes shuld haue ben iÌ„mediatly forfayted to the kyng And it is holdeÌ„ by all doctors that that law is agaiÌ„st coÌ„science except certayne cases that were to longe to reherce now And it was ordeyned by the statute at Westmynster the first that if a dogge or cat come alyue to the
the husbande and the wyfe as one persone in the lawe shall take onlye the one halfe the thyrde person the other half / but these cases be alway to be vnderstande where the sayde estates be made without ani recompence And for as moche as in this principall case / the intent of the feoffour is groundid agaynst the lawe that there is no recompence appoynted for the feffement me thynketh that the feffour hath neyther right to the lande by lawe nor conscience / for if he shulde haue it by conscience / that coÌ„science shulde be grounded vpon the lawe of reason that it can nat / for condicions be nat grouÌ„ded vpoÌ„ the lawe of reason / but vpoÌ„ the maxymes custome of the realme And therfore it might be ordeyned by statute / that al condicioÌ„s made vpoÌ„ lande shuld be voyd And whaÌ„ a condicioÌ„ is voyde by the maximes of the lawe / it is as fully voyde to euery intent as if it were made voyde by statute / so me thynketh that in this case the feffour hath no righte to the lande in law nor in conscience ¶ Doctoure I am content thy opinion stande tyll we shall haue hereafter a better leasure to speke ferther in this matter ☞ The .v. question of the Student The .xxv. Chapitre STudent If a fine with proclamacioÌ„ be leuyed accordynge to the statute no clayme made within .v. yeres cÌ„ whether is the righte of a straunger extincted thereby in conscience / as it is in the lawe ¶ Doctoure Vpon what consideracion was that statute made ¶ StudeÌ„t that the righte of landes and tenementes myghte be the more certaynly knowen and nat to be so vncertayne as they were byfore that statute ¶ Doctoure And whan any lawe of man is made for a coÌ„mon welthe / or for a good peace and quietnes of the people / or for any inconuenience or hurte to be saued from them / that lawe is good thoughe percase it extincte the right of a straunger and must be kept in the courte of conscience for as it is said before in the .iiii. chapitre By lawes rightewysely made by man it appereth who hath righte to the landes and goodes for what so euer a man hathe by suche a lawe he hath it rightewisely And what so euer he holdeth agaynste suche a lawe he holdeth vnrightwisely And ferthermore as it is sayde there all lawes made by man / whiche be nat contrarye to the lawe of god muste be obserued and kepte / and that in conscience And he that dispiseth them dispiseth god and that resisteth them resisteth god / also it is to be vnderstande that possessions / and the righte thereof be subiecte to the lawes / so that they therefore with a cause reasonable maye be translated and altered from one man to another by the acte of the lawe And of this consideracion that lawe is grounded that by a contracte made in feyres and markettes the propretye is altered excepte the propretye be to the kynge / so that the byer paye tolle / or do suche other thynges as is a customed there to be done vpon suche contractes / and that the byer knoweth nat the former propretye And in the lawe Ciuile there is a lyke lawe that if a man haue another mannes good with a title .iii. yere thynkynge that he hath righte to it he hath the very righte vnto the thynge and that was made for a lawe to the intente that the propretye and ryghte of thynges shulde nat be vncertayne / that variaunce stryfe shulde nat be amonge the people And for as moche as the sayd statute was ordayned to gyue a certeiÌ„te of title in the landes tenemeÌ„tes comprised in the fyne / It semeth that that fyne extiÌ„cted the title of all other / as well in conscieÌ„ce as it dothe in the lawe And sythe I haue answered to thy question I praye the let me knowe thy mynde in one question concernynge tayled landes than I will trouble the no ferther at this tyme. ☞ A questioÌ„ made by the Doctour / how certayne recoueries that be vsed iÌ„ the kynges courtes to defete tayled lande may stande with conscience The .xxvi. Chapitre DOctour I haue herde say that whaÌ„ a man that is seased of laÌ„des in the tayle selleth the lande That it is coÌ„monly vsed that he that byeth the lande shal for his suertye / for the auoydyng of the tayle in that behalfe / cause some of his frendes to recouer the sayde landes agaiÌ„st the sayd tenaunt in tayle whiche recouerye as I haue ben credably enformed shal be had in this maner / the demaundauÌ„tes shall suppose in theyr writte declaracion that the tenaÌ„t hath no entre / but by suche a straunger as the byer shall liste to name appoynte / where in dede the demaundauntes neuer had possession therof / nor yet the sayde straunger And thereupoÌ„ the sayde tenaunte in tayle shall appere in the court by coueÌ„ by alient of the parties / shall vouche to warrante one that he knoweth well hath nothynge to yelde in value And that vouche shall appere the demaundauntes shall declare agaynst hym / therupon he shall take a day to enperle iÌ„ the same terme at that day by assent couen of the partyes / he shall make defaulte vpoÌ„ whiche default bycause it is a default in despite of the court / the demaundauntê shall haue iugemeÌ„t to recouer agaynst the tenaunt in tayle / he ouer in value agaiÌ„st the vouche this iugement recouery in value / is taken for a barre of the tayle for euer / howe may it therfore be taken that that lawe standeth with conscieÌ„ce that as it semeth aloweth fauoureth suche fayned recoueries ¶ StudeÌ„t If the tenaÌ„t in tayle sel the laÌ„de for a certayn suÌ„me of money as is agreed betwixte them at suche a pryce as is coÌ„monly vsed of other landes / for the suertye of the sale suffereth suche a recouerye as is aforesayd / what is the cause that moueth the to doubte whether the sayd contracte or the recouery made thereupon for the suertye of the byer that hath truely payd his money for the same shuld stande with conscience ¶ Doctour Two thynges cause me to doute therein / one is for that that aft our lorde had gyuen the lande of byheste to Abrahan to his sede / that is to saye to his chyldren in possession alwaye to continue / he sayde to Moyses as it appereth LeuiticeÌ„ xxv the lande shall nat be solde for euer / for it is myne And than our lorde assigned a certayne maner howe the lande might be redemed in the yere of Iubilie if it were sold byfore for as moche as our lorde wolde that the lande so gyuen to Abraham his chyldren shuld nat be solde for euer / it semeth that he dothe agaynst the ensample of god that alieneth or selleth the laÌ„de that is gyueÌ„ to him to
might growe to the party if he shulde be put to answere to suche auermentes in the chauncerye as if he were put to answere to thē at the comō lawe therfore they thynke that no sub pena lyeth in the sayd cases ne in other lyke vnto them Neuertheles I do nat take it that theyr opynion is that he that boughte the lande in this case may with good conscience holde the lande bycause he shall nat be compelled by no lawe to restore it / but that he is in conscience by the law of reason bounde to restore it or otherwyse to recompence the partye so as he shal be contented I suppose veryly it is so if he wyll kepe his soule out of peryll daūger And after some men to these cases may be resēbled the case of a fine with none clayme that is remembre before in the .xiiii. chapitre of this boke / where a mā knowyng another to haue right to certayne lande causeth a fine to be leuied therof with proclamacion and the other suffereth fyue yeres to passe without clayme in that case he hath no remedye nether by comon law nor by sub pena / that yet he that leuyed the fine is bounde to restore the lande in consciēce And me thynketh I coulde right well agre that it shulde be so in this case / that specially / by cause the partye hym selfe knoweth perfitelye that the sayde colaterall warrantye was obteyned by couen and agaynst conscience ☞ The fourth question of the doctour is of wrecke of the see ⸫ The .li. Chapitre DOctour I pray the let me now here thy mynde howe the lawe of Englāde concernynge goodes that be wrecked vpon the see may stande with consciēce for I am in great doute of it ¶ Student I pray the let me fyrste here thyne opiniō what thou thynkest therein ¶ Doctoure The statute of Westmynstre the fyrst / that speketh of wrecke is / that if any mā dogge or catte come alyue to the lande out of the shyppe or barge / thatt it shall nat be iuged for wrecke so that if the partie to whome the goodes belonge come within a yere a day proue them to be his that he shall haue them or els that they shall remayne to the kynge And me thynketh that the sayd statute standeth nat with conscience / for there is no lawfull cause why the party ought to forfet his goodes ne that the kīg or lordes ought to haue them for there is no cause of forfeture in the partye but rather a cause of sorowe heuines And so that lawe semeth to adde sorowe vpon sorowe 〈◊〉 therfore doctours holde comonly that he that hath suche goodes is boūde to restitucion that no custome may helpe for they say it is agaynst the cōmaūdemēt of god Le .xix. Where it is cōmaūded that a man shall loue his neyghboure as hym selfe / that they say he dothe nat that taketh away his neyghbours goodes / but they agre that if any mā haue cost labour for the sauynge of suche goodes wrecked specially suche goodes as wolde perysshe if they laye styll in the water / as suger / paper / salte / mele / and suche other / that he ought to be alowed for his costes and labour but he must restore the goodes except he coulde nat saue them without puttinge his lyfe in ieoperdie for them / than if he put his lyfe in suche ieoperdie the owner by comon presumpcion had had no waye to haue saued them thā it is moste comōly holden that he may kepe the goodes in cōscience / but of other goodes that wolde nat so lightly perysshe / but that the owner might of comon presumpciō saue them hym selfe or that might be saued without any perill of lyfe / the takers of them be bounde to restitucion to the owner whether he come within the yere or after the yere And me thīket this case is somwhat lyke to a case that I shall put / if there were a lawe a custome in this realme or if it were ordeyned by statute that if any aliē came throughe the realme in pylgrimage dyed / that all his goodes shulde be forfet / that lawe shulde be agaynst consciēce for there is no cause reasonable why the sayde goodes shulde be forfet And no more me thynketh there is of wrecke ¶ Student There be diuers cases where a mā shall lese his goodes no defaute in hym / as where beastes straye awaye fro a man they be taken vp proclaymed the owner hath nat herde of them within the yere the day / though he made sufficient diligence to haue herde of them / yet the goodes be forfet no defaute in hym / so it is where a mā kylleth a nother with the sworde of I. at style the sworde shal be forfet as a deodāde yet no defaute is in the owner / so me thynketh it may be in this case / that sith the comō lawe before the sayd statute was that the goodes wrecked vpon the see shal be forfet to the kyng that they be also forfet nowe after the statute excepte they be saued by folowynge the statute / for the lawe muste nedes reduce the propertye of all goodes to some man whan the goodes be wrecked it semeth the property is in no mā but admitte that the property remayne still in the owner thā if the owner percase wolde neuer clayme than it shulde nat be knowē who ought to taken thē so mighte they be distroyed no profite come of them / wherefore me thynketh it reasonable that the lawe shall appoynt who ought to haue thē / that hath the lawe appoynted to the kyng as souerayn hed ouer the people ¶ Doctoure In the cases that thou haste put before of the stray deodand there be consideracions why they be forfet / but it is nat so here / me thynketh that in this case it were nat vnresonable that the law shulde suffre any man that wolde take thē to take kepe them to the vse of the owner / sauinge his reasonable expēces / this me thynketh were more reasonable law than to pull the property out of the owner with oute cause But if a man in the see cast his goodes out of the shyp as forsaken there doctours holde that euery man may take them lawfully that wyll / but otherwyse it is as they say if he throw them out for fere that they shulde ouercharge the shyppe ¶ Studēt There is no suche law in this realme of goodes forsaken / for thoughe a man weyue the possession of his goodes sayth he forsaketh than / yet by the lawe of the realme the property remayneth still in hym / he may sease them after whā he wyll / if any man in the meane tyme put the goodes in saufegarde so the vse of the owner I thynke he dothe lawfully that he
enfeffed hym as before apereth it is vsed that he shall plede ferther saye that the pleyntyfe claming in by a coloure of a dede of feffemeÌ„t made by the sayd feffo r before the feffemente made to hym / where nought passed by the dede eÌ„tred / vpoÌ„ whome he entred asketh iugemente if the assiselye agaynste hym In this case bycause it appereth to be a dout to vnlerned meÌ„ whether the lande passe by the dede without lyuerey or nat / therfore the lawe suffreth the tenaÌ„t to haue that speciall matter to bring the matter to the determinacion of the Iuges And in suche case the Iuges may nat put the tenant fro the plee / for they knowe nat as Iuges but that it is trewe / so if any defaut be it is in the tenaunt nat in the court And though the trouthe be that there were no suche dede of feoffemeÌ„t made to the playntyfe as the tenaunt pleadeth / yet me thynketh it is no defaute in the tenant for he dothe it to a good inteÌ„t as before appereth ¶ Doctour If the tenante knowe that the feoffour made no suche dede of feoffement to the pleyntyfe / thaÌ„ there is a defaut in the tenant to plede it / for he wittingly sayth agaynste the trouthe / it is holden by all doctours that euery lye is an offence more or lesse / for if it be of malice to the hurte of his neyghbour / than it is called MendaciuÌ„ permiciosum that is dedely synne And if it be in sporte to the hurte of no man / nor of custome vsed / ne of pleasure that he hath in lyenge / than it is veniall synne / is called in latine meÌ„dacium iocosum And if it be to the profite of his neyghbour to the hurte of no man than it is also veniall synne / is called in latine mendacium officiosum And though it be the leeste of tho thre yet it is a veniall synne wolde be eschewed ¶ Student Thoughe the mydwyfes of Egipte lyed whan they had reserued the male chyldreÌ„ of the Ebrewes / saiÌ„g to the kyng Pharao / that the Ebrewes had women that were connyng in the same crafte whiche or they came had reserued the chyldren alyue where in dede they theÌ„selfe of pytye of drede of god reserued them yet saint Ierome expouÌ„deth the texte folowyng whiche sayth that our lorde therfore gaue theÌ„ houses that it is to be vnderstande that he gaue them spirituall houses that they had therfore eternall rewarde / if they synned by that lye all though it were but veniall / yet I caÌ„ nat se howe they shulde haue therfore eternall rewarde And also if a man intending to slee a nother aske me where that man / is it nat better for me to lye to say I can nat tell where he is though I know it / thaÌ„ to shewe where he is whereupon murder shulde folowe ¶ Doctour The dede that the mydwyfes of Egipte dyd in sauing that chyldren was meritorious deserued rewarde euerlastinge if they beleued in god dyd good dedes beside as it is to presume they dyd / whan they for the loue of god refused the dethe of the Innocentes / than though they made a lye after whiche was but veniall synne that coulde nat take fro them theyr rewarde / for a veniall synne dothe nat vtterly extincte charitie but letteth the feruour therof therfore it maye well stande with the wordes of saynt Ierome that they had for theyr good dede eternall houses / yet the lye that they made to be a veniall synne / but neuertheles if suche a lye that is of it selfe but veniall be affirmed with an othe / it is alwaye mortall if he know it befalse that he swereth And as to the other question it is nat lyke to this question that we haue in hande as me semeth / for somtyme a man for eschewing of the greater euyll may do a lesse euyll / than the lesse is no offence in hym / so it is in the case that thou hast put wherin bycause it is lesse offeÌ„ce to say he wotteth nat where he is though he knowe where he is than it is to shewe where he is / wherupon murdre shulde folowe / it is therfore no synne to saye he wotteth nat where he is / for euery maÌ„ is bounde to loue his neyghbour if he shewe in this case where he is knowynge his dethe shuld folowe therupon it semeth that he loued hym nat / ne that he dyd nat to hiÌ„ as he wolde be done to / but iÌ„ the case that we be in here / there is no suche synne eschewed / for though the partie pleded the generall issue the iury might finde the trouth in euery thyng / therfore in that he sayth that the pleyntyfe claymiÌ„ge in by the colour of a dede of feffement where nought passed entred cÌ„ knowynge that there was no suche feffemeÌ„t it was a lye in hym a veniall synne as me thynketh And euery maÌ„ is boundeÌ„ to suffre a deedly synne in his neyghbour / rather than a veniall synne in hiÌ„selfe ¶ StudeÌ„t Though the Iury vpoÌ„ the generall issue may finde the trouth as thou sayste / yet it is moche more daungerous to the Iury to enquere of many poiÌ„tê thaÌ„ to enquere onely of one poiÌ„t And for as moch as our lord hath gyueÌ„ a coÌ„mauÌ„demeÌ„t to euery maÌ„ vpoÌ„ hê neyghbour / therfore euery maÌ„ is bouÌ„d to forse as moch as iÌ„ hiÌ„ is that by hiÌ„ no occasioÌ„ of offeÌ„ce come to hê neyghbor. And for the same cause / the law hath ordeined diuers maximê principles whereby issues in the kynges court may be ioyned vpon one poynte in certayne as nyghe as may be / nat generaltye / lest offence might folowe therupon agaynst god / a hurte also vnto the Iuri / wherfore it semeth that he loueth nat in hys neyghboure as hym selfe ne that he dothe nat as he wolde be done to that offereth suche daunger to his neyghbour where he may well conueniently kepe it fro hym if he will folowe the order of the lawe / it semeth that he putteth hym selfe wilfully an ieoperdye that dothe it / it is written Ecclesiastici .iii. Qui amat periculum in illo peribit / that is to say / he that loueth peryl shall perysshe in it / and he that putteth his neyghbour in peryll to offende putteth hiÌ„ selfe iÌ„ the same / so shuld he do me semeth that wolde wilfully take the generall issue where he mighte coÌ„uenieÌ„tly haue the speciall matter / ferthermore it is none offeÌ„ce in princes rulers to suffre coÌ„tractes and byeÌ„g selliÌ„g in markettes / fayres / though bothe periure disceyte will folowe therevpon / bycause suche contractes be necessarye for the comon welthe / so it semeth lykewyse that there is no defaute in the partye that pleadeth suche a special mater
man shuld holde satisfi competently to the churche / to the whiche they be bounde to gyue it of right / no expences by the gyuinge of the sayd tythes deducte or withholden / but onely for the payment of tythes of craftes of byenge sellinge / vy reason of the sayde constitucions prouincials somtyme sutes be taken in the spirituall court for personall tythes / therof many men do meruayle / bycause the deduccions many tymes must be referred to the conscience of the parties And they meruayl also why a law shuld be made in this realme for paīge of personall tythes more than there is in other contreys And here I wolde moue the ferther in one thyng cōcernyng suche personall tythes to knowe thy mynde therin / that is / if a man gyue to another an horse / he selleth that horse for a certayne summe / shall he paye any tythe of that summe ¶ Doctoure what thīkest thou therin ¶ Student I thīke that he shall pay no tythe / for there as I take it the profite cometh nat to hī by his owne industri but by the gyfte of an other / as I take it personall tythes be nat payd for euery profite or aduauntage that cometh newly to a man except it come by his own industri or labour so it dothe nat here And also if he shulde paye tythe of that he solde the horse for he shuld pay tithe for the very hole value of the thinge And as I take it the personall tythes for byenge sellinge shall neuer be payde for the value of the thynge / but for the clere geynes of the thynge / and therfore I take the cases before rehersed where a man selleth his lande or pulleth downe a house and selleth the stuffe / that he shulde there paye no tythe / that it is there to be vnderstande that he hath the lande or howse by gyfte or by discent / for if a man bye lande / or bye the tymber stuffe of a howse and sell it for agayn I suppose that he shulde paye a personall tythe for that gayne / and this case is nat lyke to a fee or annuite graunted for counsayle where the hole fee shal be tythed / for the charges deducte or some certayn some for it by agrement / for there the hole fee cometh for his counsayle whiche is by his owne industrie But in the other case it is nat so / and the same reason as for the person all tythe might be made of trees whan they descende or be gyuen to any man and he selleth them to a nother that he shall paye no personall tythe ¶ Doctoure Me thynketh that if the horse amende in his kepynge than he sell the horse / that than the tythe shal be payd of that that the horse hath encreased in value after the gyft so it may be of trees that he shall pay tythe of that that the trees be amended after the gyft or discent ¶ Student Than the tythe muste be the .x. parte of the encrease the expences deducte / and than of trees the charges muste also be deducte / for it is than a personal tythe / and there is no tree that is so moche worthe as it hath hurte the grounde by the growynge / therfore there can no personal tythe be payd by the owner of the grounde whan he selleth thē though they haue increased in this tyme. Neuertheles I will speke no ferther of that matter at this tyme / but wyll shewe the that if tyme / lede / cole / or trees be solde that a myxte tythe can nat growe therby / for a myxt tythe is properly of calues / lābes / pygges / suche other that come part of the groūd that they be fedde of / part of the kepyng industri ouersight of the owners as it is sayd before / but tynne / lede / cole are parte of the groūde of the freholde / trees growe of thē selfe / be also annexed to the freholde will growe of themselfe / also the mixte tythe muste be payde yerely at certayne tymes appoīted by the law or by custome of the cōtrey / but it may happē that tīne / lede / cole / trees shall nat be felled nor taken in many yeres / so it semeth it can nat be any mixt tythe / these be some of the reasons whiche they that wolde mayntayne that statute prescripcion to be good make to proue theyr intēt as they thynke ¶ Doctour What thynke they if a man sell the loppes of his woode whether any tythe ought there to be payd ¶ Student They thynke all one lawe of the trees of the loppes ¶ Doctour And if he vse to fell the loppes ones in .xii. or .xvi. yere / what holde they thā ¶ Studēt That all his one ¶ Doctoure And what is theyr reason why tythe ought nat to be payde there as well as for woode vnder .xx. yere ¶ Student For they say that the loppes are to be taken of the same condiciō as the trees be what time so euer they be felled / and that no custome will serue in that case agaynst the statute / no more thā it shuld do of great trees ¶ Doctour And what holde they of the barke of the trees ¶ Studēt Therin I haue nat herde theyr opinions / but it semeth to be one law with the loppes ¶ Doctour I perceyue wel by that thou hast sayd before that thy mynde is that if a hole contrey prescribe to be quite of tithes of trees / corne / gres / or of any other tythes that that p̄scripcion is good so that the spirituall ministers haue sufficient beside to liue vpō / dost thou nat mene so ¶ Student yes verely ¶ Doctor. And than I wolde know thy mynde if any mā contrary to that prescripcion were sued in the spirituall court for corne gres or any other rythes whether a prohibicion shulde lye in that case as it dyd after thy mynde before the sayd statute where a man was sued in the spirituall court for tythe wood ¶ Student I thynke nay ¶ Doctoure And why nat there as well as is dyd where a man was sued for the tithe woode ¶ Studēt For as I take it there is great diuersiti bytwene the cases that for this cause / there is a maxime ī the law of Englande that if any sute be taken in the spirituall court wherby any goodes or landes might be recouered / whiche after the groūdes of the lawe of the realme ought nat to be sued there though percase the kynges court shall holde no plee therof that yet a prohibicion shuld lye / after whan it had continued longe that no tythes were payd of wood bycause of the sayd prohibicion that after by processe of time some curates began to aske tithes of wood contrary to the law cōtrary to the sayd prescripcion so that variaūce begā
strayte waye thereto Therfore thou shalte vnderstande that the lawe of Englande is grounded vpon syxe pryncipall grouÌ„des Fyrste it is grounded on the lawe of reason Seconde on the lawe of god Thyrdly on diuers generall customes of the realme Fourthly of diuers principles that be called maxymes Fyftly on diuers ê‘ticuler customes Sixtly on diuers statutes made in parliamentes by the kyng by the coÌ„mon couÌ„cell of the realme / of which grouÌ„des I shal speke by ordre as they be reherced before / fyrste of the lawe of reason ☞ Of the fyrste grouÌ„de of the lawe of Englande The .v. Chapitre STudent The fyrste grounde of the lawe of Englande is the lawe of reason / wherof thou haste treated before in the seconde chapitre / the whiche is kept in this realme as it is in al other realmes as of necessitie it muste nedes be as thou hast sayd before ¶ Doctour But I wolde knowe what is called the lawe of nature after the lawes of EnglaÌ„de ¶ Student It is nat vsed amonge them that be lerned in the lawes of Englande to reason what thynge is commaunded or prohibet by the lawe of nature what nat but all the resonynge in that behalfe is vndre thê maner as when any thyng is grounded vpon the lawe of nature they say that reason wyll that suche a thynge be done / if it be ê“hibite by the lawe of nature They say it is agaynst reason or that reason wil nat suffre that it be done ¶ Doctoure Then I praye the shewe me what they that be lerned in the lawes of the realme holde to be coÌ„mauÌ„ded or prohibite by the lawe of nature vndre suche termes after suche maner as is vsed amongest theÌ„ that be lerned in the sayde lawes ¶ Student There be put by them that be lerned iÌ„ the lawes of EnglaÌ„de two degrees of the law of reason / that is to say / the lawe of reasoÌ„ primarie / the lawe of reason secundarie by the lawe of reason primarie be ê“hibite in the lawes of Englande murther that is the deth of hym that is InnoceÌ„t / periurie / disceyte / brekynge of the peace many other lyke And by the same law also it is lawfull for a maÌ„ to defende hiÌ„ selfe agaiÌ„ste an vniuste power so he kepe dewe circumstaunce And also if any promyse be made by man as to the body it is by the law of reason voyde in the lawes of Englande The other is called the lawe of secuÌ„darie reason / the whiche is deuided in to two braunches / that is to saye in to the lawe of a secundarie reason generall / and in to a lawe of secundarie reason perticuler The lawe of a secundarie reason generall is grouÌ„ded deriuied of that general law or generall custome of propretie whereby goodes mouable vnmouable be brought in to a certayne propretie / so that euery man may knowe his owne thynge And by this brauÌ„che be prohibited in the lawê of Englande disseasons / trespasse in landes goodê rescues thefte vnlawfull with holdynge of another maÌ„nes goodes and suche other And by the same lawe it is a grouÌ„de in the lawes of Englande that satisfaccion muste be made for a trespasse / that restitucioÌ„ muste be made of suche goodes as one man hath that belonge to another man / that dettes muste by payde couenauÌ„tes fulfulled suche other And because disseasons / trespasse in landes and goodes thefte suche other had nat ben knowen / if the lawe of propretie had nat ben ordeyned Therfore all thynges that be diriuied by reason out of the sayde law of propretie / be called the lawe of reason secundarie generall / for that lawe of propretie is generally kept in al our couÌ„tres The lawe of reason secundarie perticuler is that lawe that is deriuied vpon diuers customes generall perticuler of diuers maximes statutes ordeyned in this realme And it is called the law of reason secuÌ„darie perticuler because that reason iÌ„ that case is deriuied of suche a law that is onely holden for law in this realme / in none other realme ♣ Addition ⧠Doctoure I pray the shewe me some speciall case of suche law of reason secuÌ„darie perticuler for an exaÌ„ple ¶ Student There is a law iÌ„ EnglaÌ„de / which is a law of custome that if a man take a distresse lawfully that he shall put it in a pounde ouerte there to remayne tyll he be satisfied of that he distrayned for And then therevpon maye be asked this question that if the beastes dye in pouÌ„de for lacke of meat at whose peryl dye they / whether dye they at the peryll of hym that distreyned or of hym that oweth the beastes ¶ Doctoure If the law be as thou sayste than a maÌ„ for a iuste cause taketh a distres putteth it in pounde ouerte no lawe compelleth hym that distreyneth to gyue theÌ„ meate / then it semeth of reason that if the distres dye in pounde for lacke of meate / that it dyed at the peryll of hym that oweth the beastes nat of hym that distrayned / for iÌ„ hym that distreyned there can be assigned no defaute / but in the other may be assigned a defaute / because the rente was vnpayde ¶ Student Thou haste gyuen a trewe Iugement who hath taughte the to do so / but reason diriuied of the sayd generall custome And the lawe is so full of suche secuÌ„darie reasons diriuied out of the generall customes maximes of the realme that some men haue affermed that all the lawe of the realme is the law of reasoÌ„ but that caÌ„ nat be ê“ued as me semeth as I haue partly shewed before more fully wyll shewe after And it is nat moche vsed in the lawes of Englande to reason what lawe is grouÌ„ded vpon the law of the fyrst reason primary / or of the law of reason secuÌ„darie / for they be moste coÌ„moÌ„ly openly knoweÌ„ of them selfe / but for the knowlege of the lawe of reason secuÌ„darie is greater difficultie / therfore therin dependeth moche the maner forme of argumeÌ„tes iÌ„ the lawes of EnglaÌ„de And it is to be noted that all the deriuieÌ„ge of reason iÌ„ the lawes of EnglaÌ„de procedeth of the fyrste principles of the lawe or of some thynge that is deriuied of theÌ„ And therfore no man may right wisely Iuge ne grouÌ„dly reason iÌ„ the lawes of Englande if he be ygnoraut in the fyrste principles Also all byrdes / fowles / wylde beastes as beastes of forestes warren suche other be excepted by the lawes of Englande out of the sayd generall lawe custome of ê“pretie For by the lawes of the realme no propretie maye be of them in any person oneles they be tame Neuerthelesse the egges of Hawkes / heroÌ„s / or suche other as buylde in the grouÌ„de of any person / be adiuged by the sayde lawes to be longe to hym that oweth the grounde ☞ Of the .ii. grounde of the
lawe of Englande The .vi. Chapitre STudent The secoÌ„de grounde of the lawe of Englande is the lawe of god therfore for punisshement of them that offended agaynst the law of god / it is enquered in many courtes in this realme / if any holde any opynions secretely or in any other maner agaynst the trewe catholicall faythe And also if any generall custome were directly agaynste the lawe of god / or if any statute were made directly agaynst it / as if it were ordayned that no almesse shulde be gyuen for no necessitie that custome statute were voyde Neuer thelesse the statute made in the .xxiii. yere of kyng Edwarde the .iii. wherby it is ordayned that no man vnder payne of ImprysonemeÌ„t shall gyue any almesse to any valyaunt beggers that may well laboure that they may so be compelled to laboure for theyr lyuynge is a good statute / for it obserueth the inteÌ„t of the law of god And also by auctoritie of this lawe there is a grounde in the lawes of Englande / that he that is accursed shall maynteyne no accion in the kynges courte / except it be in very fewe cases so that the same excoÌ„municacion be certified before the kynges Iustices in suche maner as the lawe of the realme hath appoynted And by the auctoritie also of this grounde / the lawe of Englande amitteth the spirituell IurisdiccioÌ„ of dysmes and offerynges And of all other thynges that of righte belonge vnto it And receyueth also all lawes of the Churche dewly made and that excede nat the power of them that made them In so moche that in many cases it behoueth the kinges Iustices to iuge after the lawê of the Churche ¶ Doctoure Howe may that be that the kynges Iustices shulde iuge in the kynges courtes after the lawe of the Churche / for it semeth that the Churche shuld rather gyue iugemente in suche thynges as it may make lawê of theÌ„ the kyngê Iusticê ¶ StudeÌ„t That may be done in many cases / wherof I shall for an exaÌ„ple put this case If a writ of right of warde be brought of the bodye c. And the tenauÌ„t confessyng the tenour and the noÌ„age of the InfaÌ„t / sayth that the InfaÌ„t was maryed in his auncesters dayes cÌ„ whervpon .xii. men besworne which gyue this verdyt / that the InfaÌ„te was maryed in the lyfe of his auncestour And that the woman in the lyfe of his auncestour sued a deuorce whervpon sentence was gyuen that they shulde be deuorced And that the heyre appeled whiche hangeth yet vndiscussed prayenge the ayde of the Iustice to knowe whether the Infante in this case shal be sayd maryed or nat In this case if the lawe of the Churche be that the sayde sentence of deuorce staÌ„deth in his strength vertue vntyll it be adnulled vpoÌ„ the said appele Than the Infante at the deth of his auncestoure was vnmaryed because the fyrste maryage was adnulled by that deuorce And if the lawe of the Churche be that the sentence of that deuorce standeth nat in effecte tyll it be affermed vpon the sayde appele / then is the Infante yet maryed / so that the value of his maryage caÌ„ nat beloÌ„ge vnto the lorde And therfore in this case IugemeÌ„t condicionell shal be gyuen cÌ„ And in lykewyse the kynges Iustice in many other cases shall Iuge after the lawe of the Churche lyke as the spirituell Iuges muste in many cases forme theyr Iugement after the kynges lawes ¶ Doctoure Howe may that be that the spirituel Iuges shulde iuge after the king lawes I pray the shewe me some certayn case therof ¶ StudeÌ„t Though it be somwhat a digressioÌ„ fro our fyrst purpose / yet I wyll nat with saye thy desire / but wyll with good wyll put the a case or two therof / that thou mayste the better perceyue what I meane If A. B. haue goodes ioyntly / A. by his laste wyll byqueteth his porcion therin to C. and maketh the sayde B. his executour dyed / C. asketh the execucion of this wyll in the spirituell courte In this case the Iuges there be bounde to Iuge that wyll to be voyde because it is voyde by the lawê of the realme And in likewyse if a maÌ„ be outlawed / aft by his wyll bequeteth certayn goodes to IohnÌ„ at stile / make his executours dye the kynge seaseth the goodes after gyueth theÌ„ agayne to the executours / after IohnÌ„ at style suyth a sitacion oute of the spirituell courte agaynste the executours to haue execucion of the wyll / in this case the Iuges of the spirituell court must iuge the wyll to be voyde as the lawe of the realme is that it is And yet there is no suche lawe of forfayture of goodes by out lagarie in the spirituell lawe ☞ Of the thyrde grounde of the lawe of Englande The .vii. Chapitre STudent The thyrde grounde of the lawe of Englande standeth vpon diuerse generall customes of olde tyme vsed through all the realme whiche haue ben accepted and approued by our soueraygne lorde the kynge and his progenitours and all theyr subgectes And by cause the sayde customes be neyther agaynst the lawe of god / nor the lawe of reason / haue ben alwaye taken to be good and necessarie for the coÌ„mon welth of al the real me Therfore they haue optayned the streÌ„ghte of a lawe / in so moche that he that doth agaynste them dothe agaynste Iustice And these be the customes that proprely be called the common law And it shall alway be determined by the Iustices whether there be any suche generall custome or nat / and nat by xii men And of these generall customes and of certayne principles that be called maximes whiche also take effecte by the olde custome of the real me / as shall appere in the Chapitre nexte folowynge dependeth moste parte of the lawe of this realme And therfore oure soueraygne lorde the kynge at his coronacion amonge other thynges taketh a solempne o the / that he shall cause all the customes of hys realme faythfully to be obserued ¶ Doctoure I praye the shewe me some of these generall customes ¶ Student I wyll with good wyll / and fyrst I shall shewe the how the custome of the realme is the very grounde of diuers courtes in the realme / that is to say of the ChauÌ„cerie of the kyngea benche / of the coÌ„mon place the Escheker / the whiche be courtes of recorde because none may sit as Iuge iÌ„ those courtes by by the kiÌ„ges letters pateÌ„tes And these courtê haue diuers auctorites wherof it is nat to treate at thê tyme. Other courtê there be also only grouÌ„ded by the custome of the realme that be of moche lesse auctorite theÌ„ the courtê before reherced / as iÌ„ euery shyre withiÌ„ the realme there is a court that is called the CouÌ„tye / another that is called the Shyryftes torne / iÌ„ euery maner is a courte that
lysteth may so accompte them / or if he wyll he may take theÌ„ for one grounde after his pleasure / of which maximes I shal hereafter shewe the parte ⧠Fyrst there is a maxime that escuage vncertayne maketh knyghtes seruice ⧠Also there is another maxime that escuage certayne maketh socage ⧠Also that he that holdeth by castelgarde / holdeth by knyghtes seruice / but he holdeth nat by escuage And that he that holdeth by .xx. s. to the garde of a castell holdeth by socage ⧠Also there is a maxime that a disceÌ„t taketh awaye an entre ⧠Also that no prescripcion in laÌ„des maketh a ryght ⧠Also that a prescripcion of rente of profites aprendre out of lande maketh a ryghte ⧠Also that the limitacioÌ„ of a ê‘scripcioÌ„ generally takeÌ„ is froÌ„ the tyme that no maÌ„nes mynde renuyth to the contrarie ⧠Also that assignes may be made vpoÌ„ laÌ„des gyueÌ„ in fee for terme of lyfe / or for tme of yeres though no meÌ„cioÌ„ be made of assignes / the same lawe is of a rent that is grauÌ„ted / but otherwyse it is of a waraÌ„tie of a couenaunte ⧠Also that a condicion to auoyde a freholde can nat be pleaded without dede / but to auoyde a gyft of a chatel it may be pleaded without dede ⧠Also that a release or a confirmacion made by hym that at the tyme of the release or coÌ„firmacion made had no ryghte is voyde in the law / though a righte come to hym after / except it be with warrauÌ„tye / theÌ„ it shall barre hym of all right that he shall haue after the warrauÌ„tye made ⧠Also that a right or title of accioÌ„ that onely dependeth in accion can nat be gyueÌ„ nor graunted to none other but onely to the tenaunt of the grouÌ„de / or to hym that hath the reuercion or remayndre of the same lande ⧠Also that in an accion of dette vpon a contracte the def maye wage his law / but otherwyse it is vpoÌ„ a lease of laÌ„des for terme of yeres or at wyll ⧠Also that if an exigent in case of felonye be awarded agaynste a man he hathe therby forthwith forfeted his goodes to the kynge ⧠Also if the sone be attaiÌ„ted in the lyfe of the father / and after he purchaseth his Chartour of pardon of the kynge / after the father dyed In this case the laÌ„de shall Eschete to the lorde of the fee in so moche that that though he haue a yoÌ„gerbrother yet the laÌ„de shall nat discende to hym / for by the atteyndre of the elder brother the blode is corrupte the father in the lawe dyed without heyre ⧠Also if an Abbot or a Priour alyene the landes of his house dyed / in that case though his successour haue right to the laÌ„de / yet he may nat entre but he muste take his accioÌ„ that is appoynted hiÌ„ by the law ⧠Also there is a maxime iÌ„ the law that if a villayne purchase landes the lord entre / he shall enioye the laÌ„de as his owne / but if the villayne alyene before the lorde entre / that alienacion is good And the same law is of goodes ⧠Also if a maÌ„ stele goodes to the value of .xii. d. or aboue it is felonye / and he shall dye for it And if it be vnder the value of .xii. d. then it is but petite larcinie he shall nat dye for it / but shal be otherwyse punysshed after the discrecioÌ„ of the Iuges except it be takeÌ„ fro the person / for if a maÌ„ take any thynge howe lytell so euer it be / from a maÌ„nes ê‘son felonously / it is called roberye he shall dye for it ⧠Also he that is areyned vpon an InditemeÌ„t of felonie shal be admitted iÌ„ fauoure of lyfe to chaleÌ„ge .xxxv. iurours pereÌ„torily but if he chaleÌ„ge any aboue that nombre / the law taketh hiÌ„ as one that hath refused the law because he hath refused thre hole enquestes / therfore he shal dye but with cause he may chaleÌ„ge as many as he hath cause of chaleÌ„ge to And further it is to be vnderstaÌ„de that suche peremtorie chaleÌ„ge shall nat be admitted in appeale because it is at the suyt of the partie ⧠Also the lande of euery man is in the law enclosed froÌ„ other though it lye iÌ„ the opeÌ„ felde And therfore if a maÌ„ do a trespas theriÌ„ the writ shal be quare clausuÌ„ fregit ⧠Also that reÌ„tes / coÌ„mons of pasture of turbary reuercioÌ„s remayndres / nor suche other thyngê which lye nat in manuell occupacioÌ„ may nat be gyuen nor grauÌ„ted to none other without writtynge ⧠Also that he that recouereth dette or damages in the kynges court by suche an accioÌ„ within a Capias lay in to the ê“cesse may withiÌ„ a yere after the recouerie haue a Capias ad satisfacienduÌ„ to take the bodye of the defendauÌ„t to coÌ„mit hiÌ„ to pryson tyll he haue payd the dette damagê but if there lay no Capias iÌ„ the fyrst accioÌ„ theÌ„ the pleyntyfe shall haue no Capias ad satisfacieÌ„duÌ„ / but muste take a Fierifacias or an Elegit withiÌ„ the yere or a Scire facÌ„ aft the yere or within the yere if he wyll ⧠Also if a release or confirmacioÌ„ be made to hym that at the tyme of the release made had no thynge in the laÌ„de cÌ„ the release or coÌ„firmacioÌ„ is voyde except certaiÌ„ cases as to vouchye certayne other whiche nede nat here to be remembred ⧠Also there is a maxime in the lawe of Englande that the kynge may dissease no maÌ„ / ne that no maÌ„ may dissease the kynge ne pull any reuercyon or remayndre out of hym ⧠Also the kynges excelleÌ„cie is so hygh in the law that no freholde may be gyuen to the kynge ne be deriuied from hym / but by matter of recorde ⧠Also there was somtyme a maxime a lawe in Englande that no man shulde haue a writte of right but by special suyt to the kynge And for a fyne to be made in the ChauÌ„cerie for it / but these maximes be chauÌ„ged by the statute of Magna carta the .xvi. Chapi where it is sayd thus Nulli negabimê° nulli vendemus rectum vel iusticiam And by the wordes nulli negabimus / a maÌ„ shall haue a writte of righte of course in the ChauÌ„cerie without suynge to the kynge for it And by the wordes nulli vendemê° He shall haue it without fyne and so many tymes the olde maximes of the law be chaunged by statutes ⧠Also though it be reasonable that for the many solde diuersities of accions that be in the lawes of Englande / that there shulde be diuersities of processe as in the reale accions after one maner / in personall accions after another maner yet it can nat be proued merely by reason that the same processe ought to be had none other / for by statute it might be altered And so
the grouÌ„de of the sayde processe is to be referred onely to the maximes customes of the realmes And I haue shewed the these maximes before reherced / nat to the inteÌ„t to shew the specially what is the cause of the law in theÌ„ / for that wolde aske a great respite / but I haue shewed them onely to the inteÌ„t that thou mayste perceyue that the sayde maximes other lyke may conueniently be sette for one of the groundes of the lawes of Englande / moreouer there be diuers cases / wherof I am in doute whether they be onely maximes of the lawe or that they be grounded vpoÌ„ the law of reason / wherin I pray the let me here thyn opinion ¶ Doctoure I pray the shewe those cases that thou meanest I shall make the answere therin as I shall se cause ☞ Hereafter foloweth diuers cases wherein the Student douteth whether they be onely maximes of the law or that they be grounded vpon the lawe of reason The .ix. Chapitre STudeÌ„t The law of EnglaÌ„de is that if a man coÌ„maunde another to do a trespasse he doth it / that the coÌ„mauÌ„dour is a trespasser And I am in doute whether that be onely by a maxime of the law / or that it be by the law of reason ⧠Also I am in doute vpon what law it is grounded that the Accessory shall nat be put to answere before the principal cÌ„ ⧠Also the lawe is that if an Abbot bye a thyng that commeth to the vse of the howse dyed that his successours shal be charge / I am somwhat in doute vpon what grounde that lawe dependeth ⧠Also that he that hathe possession of lande though it be by disseason hath right agaynste all men / but agaynste hym that hath ryghte ⧠Also that if an accion reall be sued agaynste any man that hath nothyng iÌ„ the thynge demaunded he writte shall abate as at the coÌ„mon lawe ⧠Also that the alienacioÌ„ of the tenauÌ„t hangynge the writ nor his entre in to religion / or if he be made a knyghte / or if she be a woman take an husbaÌ„de hangyng the writ / that the writ shall nat abate ⧠Also if lande rent that is goyng out of the same laÌ„de come in to one maÌ„nes haÌ„de of lyke estate lyke suertye of tytle / the rent is extincte ⧠Also if lande discende to hiÌ„ that hath right to the same lande before / he shal be remitted to his better tytle if he wyll ⧠Also if two tytles be concurraÌ„t togyther / the eldest tytle shal be preferred ⧠Also that euery man is bounde to make recompence for suche hurte as his beastes shall do in the corne or grasse of hys neyghboure though he knowe nat that they were there ⧠Also if the drmaundauÌ„t or playntyfe hangynge his writte wyll entre in to the thynge demauÌ„ded this writte shall abate And it is many tymes very harde and of great difficultie to knowe what cases of the lawe of Englande be grounded vpon the law of reason / what vpon custome of the realme / thoughe it be harde to discusse it yet is very necessary to be knoweÌ„ for the knowele of the parfyte reason of the lawe / if any man thynke that these cases before reherced be grounded vpon the lawe of reason / then he maye referre them to the fyrste grounde of the lawe of Englande whiche is the lawe of reason / wherof is made mencion in the .v. Chepi And if any man thynke that they be grouÌ„ded vpon the law of custome / then he may referre them to the maximes of the lawe / whiche be assigned for the thyrde grounde of the law of Englande / wherof mencion is made in the .viii. Chapitre as before appereth ¶ Doctoure But I praye the shewe me by what auctoritie is it proued in the lawes of EnglaÌ„de that the cases that thou haste put before in the .viii. Chapitre / and suche other whiche thou callest maximes oughte nat to be denyed / but ought to be taken as maximes / for sythe they can nat be proued by reason as thou agreest thy selfe they can nat / they may as lightly be denied as affermed onles there be some sufficient auctoritie to approue theÌ„ ¶ Student Many of the customes maximes of the lawes of Englande be knowen by the vse and the custome of the realme so apparantly that it nedeth nat to haue any law written therof / for what nedeth it to haue any law written that the eldest sone shall enherite his father / or that all the doughters shall enherite togyther as one heyre / if there be no sone / or that the husbande shall haue the goodes chatels of his wyfe that she hath at the tyme of the spouselles or after / or that a bastarde shall nat enheryte as heyre / or that executours shall haue the disposicion of all the goodes of theyr testatoure if there be no executours that the ordinarie shall haue it / that the heyre shall nat medled with the goodes of his auncestre but any particuler custome helpe hym The other maximes customes of the law that be nat so openly knowen amonge the people maye be knowen partly by the lawe of reason partly by the bokes of the lawes of EnglaÌ„de called yeres of termes / partly by diuers recordes remaynynge in the kynges courtes in his tresorie And specially by a boke that is called the regestre / also by diuers statutes wherin many of the sayde customes / maximes be ofte resited / as to a diligeÌ„t sercher wyll euideÌ„tly appere ☞ Of the .v. grounde of the lawe of Englande The .x. Chapitre STudent The .v. grouÌ„de of the law of Englande standeth in diuers particuler customes vsed in diuers countres townes / cyties / lordshyppes in this realme / the whiche ê‘ticuler custome because they be nat agaynste the lawe of reason / nor the law of god / though they be agaiÌ„st the sayde generall customes or maximes of the law yet neuertheles they stande in effecte and be taken for law / but if it ryse iÌ„ question in the kynges courtes whether there be any suche ê‘ticuler custome or nat it shal be tryed by .xii. men / nat by the Iuges / except the same particuler custome be of recorde in the same courte Of whiche particuler customes / I haue hereafter noted some for an example ⧠Fyrste there is a custome in KeÌ„t that is called Bauelkynde / that al the bretherne shall enherit togyther as systers at the common lawe ⧠Also there is another particuler custome / that is called burgheÌ„glisshe wher the yoÌ„ger sone shall enheryte before the eldest that custome is in Notynghame ⧠Also there is a custome in the cytie of LoÌ„don that fre meÌ„ there / may by theyr testameÌ„t inrouled byqueth theyr laÌ„des that they be seased of to whome they wyll / except to mortmayn And if they be cytizieÌ„s
grouÌ„de to make reparacions But the cause there as I suppose is for that the mynde of the makers of the sayde estatute shal be taken to be that / that case shulde be excepted And in all these cases the parties shal be holpen in the same courte by the comon lawe And thus it appereth that somtyme a man may be excepted fro the rigoure of a maxine of the lawe by another maxime of the lawe And somtyme fro the rigoure of a statute by the lawe of reason and som tyme by the intent of the makers of the statute but yet it is to be vnderstande that moste coÌ„monly where any thynge is excepted fro the generall customes or maximes of the lawes of the realme By the lawe of reason the partie must haue his remedie by a wryt that is called Sub pena yf a Subpena lye in the case but where a Subpena lyeth / and where nat it is nat our intent to treate of at this tyme. And in some case there is no remedye for suche an equytie by way of compulsion / but all the remedye therin muste be coÌ„mitted to the coÌ„science of the partie ¶ Docto r but in case where a Sub pena lyeth to whom shal it be directed whether to the Iuge or to the partie ¶ Stud It shall neuer be directed to the Iuge / but to the ê‘tie pleintyfe or to his attorney therupon an iniuÌ„ction coÌ„maundynge them by the same vnder a certayne payne therin to be coÌ„teyned that he ê“cede no ferther at the comon lawe / tyll it be determined in the kynges chauncerye whether the pleyntyfe hathe tytle in conscience to recouer or nat And whan the pleyntife by reason of suche an iniuÌ„ction seasseth to aske any ferther processe the Iuges wyll in lykewyse seasse to make any ferther ê“cesse in that behalfe ¶ Doctour Is there any mencion made in the lawes of Englande of any suche equyties ¶ Stud Of this terme equytie to that intent that is spoken of here there is no mencion made in the lawes of Englande / but of an equytie dyriuyed vpon certayne statutes mencion is made many tymes often in the lawe of Englande But that equytie is all of another effecte then this is / but of the effecte of this equytie that we nowe speke of meÌ„cion is made many tymes / for it is ofte tymes argued in the lawe of Englande where a Sub pena lyeth where nat and dayly bylles be made by men lernyd in the lawe of the realme to haue Sub penas And it is nat prohybite by the lawe / but that they may well do it so that they make them nat but in case where they ought to be made nat for vexacion of the partie / but accordynge to the trouth of the mater And the lawe wyl in many cases that there shal be suche remedye in the chauncerye vpon diuers thynges groundyd vpon suche equyties / and than the lorde Chanceller must ordre his conscieÌ„ce after the rules grouÌ„des of the lawe of the realme / in so moche that it had nat ben moche inconuenient to haue assigned suche remedye in the chauncerye vpon suche equyties for the .vii. grouÌ„de of the lawe of Englande / but for as moche as no recorde remaynethe in the kynges courtes of no suche bylle ne of the wrytte of Sub pena or Iniunction that is suyd thervpon therfore it is nat sette as for a speciall grouÌ„de of the law / but as a thinge that is suffred by the lawe ¶ Doc. Then sythe the parties oughte of ryght in many cases to be holpen in the chauncerye vpon suche equyties It semeth that if it were ordeyned by stutute / that there shulde be no remedye vpon suche equyties in the chauncerye nor in none other place / but that euery mater shulde be orderyd onely by the rules grouÌ„des of the comon lawe that that statute were agaynst ryght and coÌ„science ¶ StudeÌ„t I thynke the same / but I suppose there is no suche statute ¶ Doc. There is a statute of that effecte as I haue herde saye / wherin I wolde gladly here thy oppinion ¶ Student Shewe me that statute I shall with good wyll saye as me thynketh therin ¶ Whether the statute herafter reherced by the doctoure be agaynste coÌ„scieÌ„ce or nat The .xviii. Chapitre DOctoure There is a statute made in the .iiii. yere of kynge Henry the fourth the .xxii. chapitre / wherby it is enacted that iugementes gyuen in the kynges courtes / shall nat be examined in the chauncerye / parliameÌ„t / nor els where / by whiche statute it apperyth that if any iugement be gyuen in the kynges courtes agaynst an equytie or agaynst any mater of conscience / that there can be had no remedye by that equytie / for the iugement can nat be reformed wtout examinacion / and the examinacion is be the sayd statute prohibit wherfore it semyth that the sayd statute is agaynst coÌ„science / what is thyn oppinion therin ¶ Stud If iugemeÌ„tes gyuen in the kynges courtes shuld be examined in the chauncerye byfore the kyngê coÌ„ceyl or in any other place / the plaintifes or demandauntes shulde seldome come to the effecte of theyr suyte / ne the lawe shuld neuer haue ende And therfore to eschewe that incoÌ„uenice that statute was made And though peraueÌ„ture by reason of that statute / some singuler persone maye happen to haue losse Neuerthelesse the sayde statute is very necessarye to eschewe many great vexacions and iniust expences that wolde els come to many plaintifes that haue ryght wysely recouered in the kyngê courtes And it is moche more ê“uided for in the lawe of Englande that hurte nor damages shulde nat come to many than onelye to one And also the sayde statute doth nat ê“hybite equyte / but it ê“hybiteth only the examinacion of the iugement for the eschewynge of the incoÌ„uenieÌ„ce byfore reherced And so it semethe that the sayde statute standeth with good conscience And in many other cases where a man dothe wronge / yet he shall nat be coÌ„pellyd by waye of compulsion to reforme it / for many tymes it muste be lefte to the conscience of the partie / whether he wyll redresse it or nat And in suche case he is in coÌ„scieÌ„ce as well bounde to redresse it if he wyll saue his soule / as he were if he werre compellable therto by the lawe as it may appere in dyuers cases that maye be put vpon the same grounde ¶ Doctoure I pray the put some of those cases for an example ¶ Stud If the defendant wage his lawe in an accion of dette broughte vpon a true dette the pleintyfe hathe no meanes to come to his dette by waye of coÌ„pulsion / neyther by Subpena nor other wyse / yet the defendauÌ„t is bounde in conscieÌ„ce to pay hym Also if the grande Iury in attaynt afferme a false verdit gyuen by the pety Iurye there is no further remedy but the coÌ„scieÌ„ce of the
no more there is of diuersite other estopelles / which were to loÌ„ge to reherce now And yet the partie that may take auantage of such an estopel by the lawe / is bouÌ„de in coÌ„science to forsake that auantage specially if he were so estopped by ignorance / and nat by his owne knowlege assent for thoughe the lawe iÌ„ suche cases gyueth no remedye to hym that is estopped yet the law iugeth nat that the other hath ryght vnto the thynge that is in variaunce bytwyxte them ¶ Also it is vnderstaÌ„de that the lawe is to be lefte for coÌ„scieÌ„ce / where a thynge is tryed fouÌ„de by verdit agaynst the trouth / for in the comon law the iugement muste be gyuen accordynge as it is pleaded tried lyke as it is iÌ„ other lawes / that the iugement muste be gyuen accordynge to that / that is pleaded proued ¶ Also it is vnderstande that the lawe is to be lefte for coÌ„science / where the cause of the lawe doth cease for whan the cause of the lawe dothe cease / the lawe also dothe cease in conscience / as apperyth by this case here after folowynge ☞ Addicion ⧠A man maketh a lease for terme of lyfe / after a stranger doth waste / wherfore the lesse briÌ„geth an accion of TrnÌ„s hath iugemeÌ„t to recouer damagê hauyng regarde to the treble damagê that he shal yelde to hym iÌ„ the reuercion And aft he in the reuercion byfore accion of waste sued dyeth so that the accion of waste is therby extincted / then the tenant for terme of lyfe though he may sue execucion of the sayd iugemeÌ„t by the lawe yet he may nat do it by conscience for in conscience he maye take no more then he is hurted by the sayd trespasse / bycause he is nat chargyd ouer with the treble damages to his lessoure ¶ Also it is vnderstande where a lawe is grounded vpon a presumpcion / for if the presumpcion be vntrue / then the lawe is nat to be holden in coÌ„science And nowe I haue shewed the somwhat howe that question that is to say where the lawe shal be ruled after coÌ„science I pray the shewe me whether there be nat lyke diuersities in other lawes bytwyxte lawe conscience ¶ Docto r Yes verely very many wherof thou haste recyted one byfore / where a thynge that is vntrue is pleaded ê“ued / in whiche case iugement muste be gyuen accordynge as well in the lawe Cyuile as in the lawe Canon And another case is that if the heyre make nat his inuentory / he shal be bounde after the lawe Cyuile to all the dettes though the goodes amount nat to so moche And the lawe Canon is nat agaynste that lawe / and yet in conscience the heyre whiche in the lawes of Englande is called an executour is nat in that case charged to the dettes / but accordiÌ„ge to the value of the goodes And nowe I pray the shewe me some cases where coÌ„scieÌ„ce shal be ruled after the lawe ¶ Stud. I wyll with good wyll shewe the somwhat as me thynketh therin ⧠Here foloweth dyuers cases where conscience is to be orderyd after the lawe The .xx. Chapitre STudent The eldest sone shall haue enioy his father landes at the comon lawe in conscience / as he shall in the lawe And in Burghenglysshe the yonger sone shall enioy the inheritaunce / that in conscience And in Gauelkynde all the soÌ„nes shall inherite the lande togyther as doughters at the comon lawe and that in coÌ„scieÌ„ce And there can be none other cause assigned why coÌ„science in the fyrste case is with the eldest brother / in the seconde with the yonger brother / and iÌ„ the thyrde case with all the bretherne But bycause the lawe of Englande by reason of diuers customes dothe somtyme gyue the lande hollye to the eldest sone / somtyme to the yongest / and somtyme to all ¶ Also if a man of his mere mocion make a feffemeÌ„t of two acres of lande lyenge in two seuerall shyres / maketh lyuerey of season in the one acre in the name of both In this case the feffe hath ryght but only to that acre wherof lyuerey of season was made / bycause he hath no tytle by the law but if bothe acres had ben in one shyre he had had good ryght to both And in these cases the diuersitie of the lawe makyth the diuersitie of conscience ¶ Also if a man of his mere mocion make a feffement of a maner sayth nat to haue to holde cÌ„ with the appurtynances / in that case the feffe hath right to the demesne landes to the rentes / if there be atturnament to the comon parteynynge to the maner / but he hath nother ryght to the aduowsons appendaunt if any be / nor to the vylleins regardant but if this terme with thapurtynauÌ„ces had ben in the dede / the feffe had had ryght in coÌ„science aswell to the aduowsons vylleins / as to the residue of the maner but if the kynge of his mere mocion gyue a maner with the appurtynaunces / yet the donee hath neyther ryght in lawe nor coÌ„science to the aduowsons nor vylleins And the diuersitie of the lawe in these cases maketh the diuersitie of conscience ¶ Also if a man make a lease for terme of yeres yeldynge to hym to his heyres a certayne rent vpon condicion that if the rent be behynde by .xl. dayes cÌ„ that then it shal be lawful to the lessour his heyres to rentre And after the rent is behynde the lessour askyth the rent accordynge to the lawe it is nat payd / the lessour dyeth his heyre entreth In this case his entre is lawfull bothe in lawe and conscience but if the lessoure had dyed byfore he had demauÌ„dyd the rent / and his heyre demauÌ„de the rent / bycause it is nat payde he rentreth / in that case his rentre is nat lawfull nother in lawe nor in conscience ¶ Also if the tenaunt in dower sowe her lande and dye byfore her corne be rype / that corne in conscience belongeth to her executours / nat to hym in the reuercion / but otherwyse it is in coÌ„science of grasse frutes And the diuersitie of the lawe makyth ther also the diuersitie in coÌ„science ¶ Also if a man seased of landes in his demesne as of fee / byquethyth the same by his last wyll to another and to his heyres and dyeth In thê case the heyre nat with staÌ„dynge the wyll hath ryght to the lande in conscience And the reason is bycause the lawe iugeth that wyll to be voyde and as it is voyde in the lawe / so it is voyde in conscience ¶ Also if a man graunte a rente for terme of lyfe and make a lease of lande to the same grauÌ„te for terme of lyfe / and the tenaunte alyeneth both in fee. In this case he in the reuercion hath good tytle to the lande /
both iÌ„ lawe coÌ„scieÌ„ce nat to the rent And the reason is bycause the lande by that alienacion is forfeyt by the lawe to hym iÌ„ the reuercion nat the rent ☞ Addicion ⧠Also if landes be gyuen to two men to a woman in fee / after one of the men entermarieth with the woman alieneth the lande dyeth In this case the woman hath ryght but onely to the thyrde parte / but if the man the woman had ben maryed togyther byfore the fyrste feffement / then the woman natwithstaÌ„dyng the alienacion of her husbande shulde haue had ryght in lawe coÌ„science to the one halfe of the lande And so in these two cases coÌ„scieÌ„ce doth folowe the lawe of the realme ¶ Also if a man haue two sones / one byfore spousellys another after spouselles / after the father dyeth seased of certayne landes In that case the yonger sone shall enioye the landes in this realme as heyre to his father bothe in lawe coÌ„scieÌ„ce And the cause is / bycause the sone borne after spousellys / is by the lawe of this realme the very heyre / and the elder sone is a bastard And of these cases and many other lyke in the lawes of Englande maye be formed the Silogisme of coÌ„science / or the true iugemeÌ„t of coÌ„science in this maner Sinderesis ministreth the maior thus Ryghtwysenesse is to be done to euery man vpon whiche maior the lawe of EnglaÌ„de ministreth the minor thus The inheritance bylongeth to the sone borne aft spouselles / nat to the sone borne byfore spouselles / then coÌ„science maketh the coÌ„clusion sayth therfore the inheritaunce is in coÌ„scieÌ„ce to be gyuen to the sone borne after spousellys And so in other cases infinite may be formed by the lawe the Silogisme or the ryght iugemeÌ„t of coÌ„scieÌ„ce wherfore they that be lernyd in the lawe of the realme say that in euery case where any lawe is ordeyned for the disposicion of landes goodes / whiche is nat agaynst the lawe of god / nor yet agaynst the lawe of reason / that that lawe byndeth all them that be vnder the lawe in the courte of coÌ„science / that is to say inwardly iÌ„ his soule And therfore it is somwhat to meruayle that spirituall men haue nat endeuored theÌ„selfe in tyme past to haue more knowlege of the kynges lawes then they haue done / or that they yet do for by the ignoraunce therof they be oft tymes ignorant of that / that shuld ordre them accordynge to ryght iustice / as well coÌ„cernyng theÌ„selfe as other that come to them for coÌ„ceyll And nowe for as moch as I haue answered to thy questions as well as I can I praye the that thou wylte shewe me thy oppinion in diuers cases formed vpon the lawe of Eglande wherin I am in doute / what is to be holden therin in conscience ¶ Doctoure Shewe me thy questions I wyll saye as me thynketh therin ¶ The fyrste question of the student The .xxi. Chapitre STudent If an infaunt that is of the age of .xx. yere and hath reason and wysdome to gouerne hymselfe selleth his lande with the money therof byeth other lande of greater value then the fyrst was taketh the ê“fittes therof / whether maye that infaunte aske his fyrste lande agayne iÌ„ coÌ„scieÌ„ce / as he may by the lawe ¶ Doctour What thynkest thou in that question ¶ Stud Me semeth that for as moche as the lawe of EnglaÌ„de in this article is grounded vpon a presumpcion / that is to saye that infauntes commonly afore they be of the age of .xxi. yeres be nat able to gouerne them selfe / that yet for as moche as that presumpcion fayleth iÌ„ this infauÌ„te that he may nat in this case with conscience aske the lande agayne that he hath solde to his great auauntage as byfore appereth ¶ Doc. Is nat this sale of the infaunte and the feffemeÌ„t made thervpon if any were voydable in the lawe ¶ Stud. Yes verylye ¶ Doc. And if the feffe haue no ryght by the bargayne / nor by the feffement made therupon wherby shulde he then haue ryght therto as thou thynkest ¶ Stud. By conscience as me thynketh for the reason that I haue made byfore ¶ Docto r And vpon what lawe shulde that coÌ„scieÌ„ce be grouÌ„ded that thou spekest of / for it can nat be grouÌ„ded by the lawe of the realme as thou haste sayd thy selfe And me thynketh that it can nat be grounded vpon the lawe of god / nor vpon the lawe of reason for feffemeÌ„tes nor contractes be nat grounded vpon neyther of tho lawes / but vpon the lawe of man ¶ Stud After the lawe of propriete was ordayned / the people myght nat conueniently lyue togyther without contractes / therfore it semeth that coÌ„tractê be grouÌ„ded vpon the lawe of reason / or at the leste vpoÌ„ the lawe that is called Ius gentium ¶ Doct. Though contractes be grouÌ„ded vpon that law that is called Ius gentiuÌ„ / bycause they be so necessarye so generall amonge all people / yet that proueth nat that coÌ„tractes be grouÌ„ded vpon the lawe of reason for thoughe that lawe called Ius gentium be moche necessarye for the people yet it may be chaunged And therfore if it were ordayned by statute that there shulde be no sale of lande / ne no coÌ„tracte of goodes And if any were that it shulde be voyde / so that euery man shuld coÌ„tynewe styll seased of his landes possessed of his goodes / the statute were good And then if a man agaynst that statute solde his lande for a suÌ„me of money / yet the seller myghte lawfully retayne his lande accordynge to the statute And then he were bouÌ„de to no more / but to repaye the money that he receyued with resonable expeÌ„ces in that behalfe / and so iÌ„ lykewyse me thynketh that in this case the infant may with good coÌ„scieÌ„ce reentre in to his fyrst lande / bycause the coÌ„tracte after the maximes of the law of the realme is voyde / for as I haue herde the maximes of the lawe be of as greate strengthe in the lawe as statutes And so me thynketh that in this case the infaunt is bouÌ„de to no more / but only to repay the money to hym that he solde his laÌ„de vnto / with suche reasonable costes charges as he hath sustayned by reason of the same But if a man sell his lande by a sufficieÌ„t lawful coÌ„tracte thoughe there lacketh lyuerye of season or such other solempnities of the lawe yet the seller is bounde in conscience to performe the contracte / but in this case the contracte is insufficient / so me thynketh great diuersitie bytwyxt the cases ¶ Stud. For this tyme I holde me contented with thy opoinion ¶ The seconde question of the student The .xxii. Chapitre STudent If a man that hath landes for terme of lyfe be impanelled vpon an inquest / therupon leseth yssues
dyeth / where maye tho yssues be leuied vpon hym in the reuercion in coÌ„science as they may be by the lawe ¶ Doct. If they maye be leuied by the lawe / what is the cause why thou doost doute whether they may be leuied by conscience StudeÌ„t For there is a maxime in the lawes of Englande / that where two tytles ronne togyther / the eldeste tytle shal be preferred And in this case the tytle of hym in the reuercion is byfore the tytle of the forfetour of the yssues And therfore I doute somwhat whether they maye be lawfully leuyed ¶ Doct. By that reason it symeth thou arte in doute what the lawe is in thê case / but that must necessarely be knowen / for els it where in vayne to argue what conscience wyll therin ¶ Stud. it is certayne that the lawe is suche / so it is lyke wyse if the husbande forfet yssues dye / tho yssues shal be leuyed on the landes of the wyfe ¶ Doct. And if the lawe be such it symeth that coÌ„science is so in lykewyse / forsyth it is the lawe that for execucion of Iustice euery man shal be iÌ„panelled when nede requyreth it semeth reasonable / that if he wyll nat appere that he shulde haue some punysshemeÌ„t for his nat apperauÌ„ce for els the lawe shulde be clerely frustrate in that poynt And that payne as I haue herde is that he shal lese yssues to the kyng for his nat apperauÌ„ce / wherfore it semeth nat inconuenieÌ„t nor agaynste conscience though the lawe be that tho yssues shal be leuyed of hym iÌ„ the reuercion / for that coÌ„dicion was secretlye vnderstande in the lawe to passe with the lease whaÌ„ the lease was made And therfore it is for the lessour to beware and to preuent that daunger at the makynge of the lease / or els it shal be aiuged his owne defaute And than this pertyculer maxyme wherby suche yssues shall be leuyed vpon hym in the reuercyon is a pertyculer excepcyon in the lawe of Englande froÌ„ that generall maxyme that thou haste remeÌ„bred byfore that is to say that where two tytles ronne togyther / that the eldest tytle shal be preferred / so in this case that generall maxime in this poynt shall holde no place / nother in lawe nor in coÌ„science / for by this perticuler maxime the strengthe of that generall maxime is restreyned to euery intent / that is to saye / as well in lawe as in coÌ„science ¶ The thyrde question of the student The .xxiii. Chapitre STudeÌ„t If a tenant for terme of lyfe / or for terme of yeres do waste wherby they be bouÌ„de by the lawe to yelde to hym in the reuercion treble damagê And shall also forfet the place wasted / whether is he also bounde in conscience to pay tho damages / to restore the place wasted immediatly after the waste done / as he is the single damages / or that he is nat bounde therto tyll the treble damages the place wasted be recouered in the kynges courte ¶ Doctour Byfore iugemeÌ„t gyuen of the treble damagê and of the place wasted he is nat bounde in conscience to pay them For it is vncertayne what he shulde pay / but it suffiseth that he be redy tyl iugemeÌ„t be gyuen to yelde damages accordynge to the value of the waste / but after the iugement gyuen / he is bounden in coÌ„science to yelde the treble damages / also the place wasted And the same lawe is in all statutê penall / that is to saye / that no man is bouÌ„de in conscience to pay the penaltye tyll it be recouered by the lawe ¶ Stud. Whether maye he that hath offended agaynst suche a statute penal defende the accion hyndre the iugement to the intent he wolde nat paye the penaltie / but onely the single damagê ¶ Doctour If the accion be taken ryghtwysely accordyng to the statute and vpon a iuste cause / the defendant maye in no wyse defende the accion / onles he haue a true dylatorie mater to plede whiche shuld be hurtful to hym if he pleded it nat / though he be nat bounde to paye the penaltie tyll it be recouered ¶ The fourth question of the studeÌ„t The .xxiiii. chapitre STudent If a man infeffe another in certayne lande vpon condicion that if he infeffe any other that it shal be lawfull for the feffour and his heyres to reentre cÌ„ whether is this coÌ„dicion good in coÌ„scieÌ„ce though it be voyde in the lawe ¶ Doctour What is the cause why this condicion is voyde in the lawe ¶ Stud. The cause is this / by the lawe it is incideÌ„t to euery state of fee simple / that he that hath that estate may lawfully by the lawe by the gyfte of the feffoure make a feffement therof And than whan the feffoure restrayneth hym after that he shall make no feffement to no man agaynst his owne former graunt / also agaynste the puritie of the state of a fee simple / the lawe iugeth the condicion to be voyde / but if the condicion had ben that he shulde nat haue infeffed suche a man / or such a man that condicion had ben good / for yet he myght infeffe other ¶ Doctour though the sayde coÌ„dicion be agaynst the effecte of the stande of a fee simple also agaynste the lawe Neuerthelesse it is nat agaynst the intente that the parties agreed vpon and that at the tyme of the lyuerey And for as moche as the intent of the partie was that if the feffe infeffed any man of the lande / that the the feffour shuld entre / to that intent the feffe toke the estate after breke the intent it semeth that the lande in coÌ„science shulde returne to the feffour ¶ Stud. the intent of the parties in the lawes of Englande is voyde in many cases / that is to say if it be nat ordered accordyng to the lawe As if a man of his mere mocion without any recompence intendynge to gyue landes to another to his heyres make a dede vnto hym / wherby he gyueth hym the landes to haue to holde to hym for euer intendyng that by that worde for euer the feffe shuld haue the lande to hym to his heyres / in this case his intent is voyde / and the other shal haue the lande onely for terme of lyfe Also if a man gyue landes to another to his heyres for terme of .xx. yeres inteÌ„dyng that if the lessee dye within the terme / that than his heyres shulde enioye the lande durynge the terme In this case his inteÌ„t is voyde / for by the lawe of the realme all chatellys reall and personall shall go to the executoures / and nat to the heyre Also if a man gyue landes to a man to his wyfe / and to the thyrde person intendynge that euery of them shulde take the thyrde parte of the lande as thre common persons shuld his intent is voyde / for
the inheritaunce of many in this realme as well of spirituall as temporall / they be withoute payne in the lawe of the realme excepte suche recoueries as by the commoÌ„ course of the law be voydable in the lawe by reason of some vse / or of some other speciall matter / but what payne that is I wyll nat temerously iuge / but committe it to the goodnes of our lorde whose iugementes be very depe and profounde / nor I wyll nat fully afferme that they that haue landes by suche recoueries oughte to be compelled to restitucion / but this semeth to me to be good councell that euery maÌ„ hereafter holde that is certayne leue that is vncertaiÌ„ that is that he kepe hym self from suche recoueries and than he shal be fre from all sertrulousnes of conscience / in that behalf ¶ Student It semeth that in this question thou ponderest greatly the sayde statute of WestmÌ„ the .ii. that thoughe it be but onely a lawe made by maÌ„ / that yet for as moche as it is nat agaynst the lawe of reason / nor the lawe of god / thou thynkest that it muste be holden in conscience / and ouer that as it semeth thou arte somwhat in double whether those recoueries be any barre to the heyre in the tayle by the lawe of the realme onles that he haue in value in dede vpon the voucher / that thou wilt thereupoÌ„ take a respite or thou shewe thy full mynde therein / in lykewyse thou thiÌ„kest as I take it that those recoueries can nat be brought in to a custome but that the longer that they be suffred to continue if they be nat good by the lawe the greater is the offence agaynst god And therfore thou ponderest litle that custome / but yet thou agreest that it is good to spare the multitude of them that be paste leste a subuercion of the inheritaunce of many of thê realme might folowe great stryfe variaunce also if they shulde be adnulled for the tyme past except there be any other especiall cause to auoyde them by the lawe as thou haste touched in thy laste reason / but thou thynkest that it were good that from hensforth suche recoueryes shuld be clerely prohibit nat be suffred to be had in vse as they haue ben byfore thou couÌ„ceyllest all men therfore to refrayne them selfe from suche recoueries hereafter ¶ Doctour Thou takest well that I haue sayde accordynge as I haue mente it ¶ StudeÌ„t Now I pray the syth I haue harde thy question of these recoueries accordynge to thy desyre that thou woldest answere me to some perticuler questioÌ„s coÌ„cernynge tayled landes wherof thou hast at this tyme gyuen vs occasion to speke ¶ Doctoure shewe me those questions I wyll shewe the my mynde therein with good wyll ∴ ☞ The fyrste question of the Student concernynge tayled landes The .xxvii. Chapitre Student If a dissesour make a gyfte in the tayle to Iohan at style IohaÌ„ at style for the redemyng of the title of the dissesye agreeth with hym that he shall haue a certayne rent out of the same lande to him to his heyres / for the suertye of that rent it is diuised that the dissesye shall release his right in the lande cÌ„ that suche a recouery as we haue spokeÌ„ of byfore shal be had agaynste the sayd Iohan at style to the vse of the payment of the sayde rente and of the former tayle whether standeth that recouery well with coÌ„science or nat as thou thynkest ¶ Docto r I suppose it dothe for it is made for the strength and suertye of the tayle whiche the dissesye might haue clerely defeated auoyded if he wolde / therefore as I thinke if the sayde Iohan at style had graunted to the dissesye onely by his dede a certayne rente for the releasinge of his title that graunte shulde haue bounde the heyres in the tayle for euer And than if the dissesye for his more suertye wyll haue suche a recouerie a byfore appereth it semeth that that recouerye standeth with good conscience ¶ Student It semeth that thy oppynion is righte good in this matter And so it appereth that with a reasonable cause some particuler recoueries maye stande bothe with lawe and coÌ„science to barre a tayle ☞ The seconde question of the Student concernynge tayled landes ⸫ The .xxviii. Chapitre STudent I a tenaunt in tayle suffre a recouery agaynste hym of the landes entayled to the entent that the recouerers shall stande seased therof to the vse of a certayne woman whome he enteÌ„deth to take to his wyfe / for terme of her lyfe / and after to the vse of the fyrste tayle and after he maryeth the same woman / whether standeth that recouery with conscience though other recoueries vpon bargaynes and sales dyd nat ¶ Doctoure It semeth yes / for though the statute be / that they to whome the tenementes be so gyueÌ„ shulde nat haue power to aliene / but that the landes after theyr deth shulde remayne to theyr issues or reuert to the donours if the issues fayled yet if he to whome the landes were so gyuen take a wyfe dyeth seased without heyre of his body / and the donour entre the woman shall recouer agaynste hym the thyrde parte to holde in the name of her dowre for terme of her lyfe though the tayle be determined / the same law is of tenaÌ„t by the curtesy that is to say of hiÌ„ that happeneth to marye one that is an eÌ„heritrix of the laÌ„de entayled they haue issue the wyfe dyeth the issue dyeth / he shal holde the laÌ„des for terme of his lyfe as tenaÌ„t by the curtesye / natwithstanding the wordes of the statute whiche say that after the deth of the tenaunt in tayle without issue the landes shall reuert to the donour / I thynke the cause is bycause the intente of that statute shall nat be taken that it inteÌ„ded to put awaye suche titles as the lawe shulde gyue by reason of the tayle / so it semeth that a lyke enteÌ„t of the statute shal be taken for ioyntours / for els the statute might be somtyme a lettynge of matrymony / it is nat lyke that the statute intended so / therfore it semeth that by the onely deed of the tenaunt in tayle a ioyntour may be made by the intent of the statute / thoughe the wordes of the statute serue nat expressely for it / for many tymes the intent of the letter shal be taken nat the bare letter / as it appereth in the same statute where it is sayd that he to whome the landes be gyuen shall haue no power to alien / yet the same statute is construed that neyther he nor his heyres of his body shal haue no power to alyen / so me thynketh that suche an intent shal be taken here for sauyng of ioyntours ¶ Student trouth it is that somtyme the intent
of a statute shal be taken ferther than the expresse letter stretcheth / but yet there may no entent be taken agaynst the expresse wordes of the statute / for that shulde be rather an interpretacion of the statute than an exposicioÌ„ it can nat be reasonably taken / but that the inteÌ„t of the makers of the statute was that the lande shuld remayne continually in the heyres of the tayle as longe as the tayle endureth / there can no ioyntour be made neyther by dede nor be recouerye / but that the tayle must therby be discontinued / therfore this case of ioyntoure is not lyke to the sayd cases of tenant in dower or tenauÌ„t by the courtesie / for the title of dowrye of tenaunty by the curtesye groweth moste specially by the continuauÌ„ce of the possessioÌ„ in the heyres of the tayle but it is nat so of ioyntoures / therfore by the onely dede of the tenaunte in tayle / there maye no Ioyntour be lawfully made agaynste the expresse wordes of the statute And if there be any made by waye of recouerye / than it semeth that it muste be put vnder the same rewle as other recoueryes muste be of landes intayled ☞ The thyrde question of the Student / concernynge tayled landes ⸫ The .xxix. Chapitre STudent If IohnÌ„ at noke beyng seased of landes in fee of his mere mocioÌ„ make a feoffement of a certayne landes to the inteÌ„t that the feoffes shall therof make a gyfte to the sayde Iohan at noke to haue to him and to his heyres of his body and they make the gyft accordinge And after the sayd Iohan at noke falleth in to dette / wherefore he is taken put in pryson / and therupon for payment of his dettes he selleth the same lande / and for suertye of the byer he suffereth a recouerie to be had agaynst hym in suche maner as byfore appereth / whether standeth that recouerye with conscience or nat ¶ Docto r I wolde here make a litell digression to aske the another question or that I made answere to thyne that is to say to fele thy mynde howe that lawe by the whiche the body of the dettoure shal be taken caste in to pryson there to remayne tyll he haue payde the dette maye stande with conscieÌ„ce specially if the haue nothynge to paye it with / for as it semeth if he wyll relinquisshe his goodes / whiche in some lawes is called in laten Cedere bonis that he shall nat be inprysoned / and that is to vnderstande moste specially if he be fallen in to pouertye and nat through his owne defaute ¶ Student There is no lawe in this realme that the defendaunt may in any case Cedere bonê / and as me semeth if there were suche a lawe it shulde nat be indifferent / for as to the knowlege of hym that the money is owynge to the dettoure mighte Cedere bonis / that is to saye relinquisshe his goodes / and yet retayne to him selfe secretely greate ryches And therefore that lawe in suche case semeth more indiffereÌ„t and rightouse that committeth suche a dettour to the conscieÌ„ce of the plaiÌ„tyfe to whome the money is owynge thaÌ„ that coÌ„mitteth hym to the coÌ„science of hiÌ„ that is the dettour / for in the dettour some defaute maye be assigned / but in hym to whome the money is owynge maye be assinged no defaut ¶ Doctour But if he to whome the dette is owinge / knoweth that the dettoure hath nothyng to pay the det with / that he is falleÌ„ in to that pouertie by some casualtie And nat throughe his owne defaute / doth the lawe of Englande holde that he maye with good conscience kepe the dettour styll in pryson tyll he be payde ¶ Student nay verily but it thinketh more resonable to appoynt the libertie the iugement of conscience in that case to the dette than to the dettoure / for the cause byfore rehersed And than the dette / if he knowe the trouthe is as thou haste sayde bounde in conscience to lett hym go at lybertie though he be nat compellable thereto by the lawe And therfore admittynge it for this tyme / that the law of EnglaÌ„de in this poynt is good iuste I pray the that thou wilte make answere to my question ¶ Doctour I wyll with good wyll / therfore as me semeth for as moch as it appereth that the sayd gyft was made of the mere liberte fre wyll of the said Iohan at noke / without any recompeÌ„ce that therefore it can nat be otherwyse taken / but that the intent of the sayde IohaÌ„ at noke as well at the tyme of the sayd feoffement / as at the tyme that he receyued agayne the sayd gyfte in the tayle / was that if he happened afterwardes to falle in to pouertie / that he might alyen the sayd laÌ„de to releue hym with / for howe may it be though that a man wyll so moche pondre the welthe of his heyre / that he wyll forget hym selfe / so it semeth that nat onely the sayde recouerye standeth with conscience but also that if he had made onely a feoffement of the lande that that feoffement shulde be in conscience a good barre of the tayle / but if the sayd feoffement and gyfte had ben made in consideracioÌ„ of any recompence of money or for any matrimony or suche other / than the feoffemente of the sayd Iohan at noke shulde nat bynde his heyre / and if he than suffred any recouerye thereof than that recouerye shulde be of lyke effecte as other recoueries whereof we haue treated byfore / the whiche I sayd it was good to fauour rather for theyr multitude than for the conscience the same lawe is that if the sonne and the heyre of the sayd Iohan at noke in case that the sayde gyfte was made without recompence alyen the lande for pouertye after the deth of his father that recouerye byndeth nat but as other recoueries do / for it caÌ„ nat be thought that the enteÌ„t of the father was that any of his heyres in tayle shulde for any necessite dissherite all other heyres in tayle that shuld come after hym but for hiÌ„ selfe me thinketh it is resonable to iuge in suche maner as I haue sayd byfore ¶ Student And though the intent of the sayde Iohan at noke whan he made the sayde feoffement / and whan he toke agayne the sayde gyfte in tayle were that if he fell in nede that he mighte alien yet I suppose that he maye nat alien though percase for the more suerte he declared his intent to be suche vpon the lyueries of season for that intente was contrary to the gyfte that he frelye toke vpon hym and whan any intent or condicion is declared or reserued agaynst the state that any maÌ„ maketh or accepteth than suche an inteÌ„t or condicion is voyde by the lawe as by a case that hereafter foloweth wyll appere / that is to
seconde question of the Student The .xxii. chapitre Fo. 50. ¶ The thyrde question of the Student The .xxiii. chapitre Fo. 51. ¶ The fourth question of the Student The .xxiii. chapitre Fo. 52 ¶ The .v. question of the Student The .xxv. chapitre Fo. 54. ¶ A question made by the Doctoure / how certayn recoueries that be vsed in the kinges courtes to defete rayled lande maye stande with coÌ„scieÌ„ce The .xxvi. cha fo 55 ¶ The fyrst questioÌ„ of the studeÌ„t / coÌ„cerniÌ„g tayled laÌ„des The .xxvii. chapi Fo. 65. ¶ The .ii. questioÌ„ of the studeÌ„t / coÌ„cerning tayled laÌ„des The .xxviii. chapi Fo. 66. ¶ The thyrde question of the Student / concernynge tayled landes The .xxix. chapitre Fo. 68. ¶ The .iiii. question of the StudeÌ„t / coÌ„cernynge recoueries of enheritauÌ„ce entayled The .xxx. chapitre Fo. 70. ¶ The .v. question of the StudeÌ„t / concernynge tayled landes The .xxxi. chapitre Folio 72. ¶ The .vi. questioÌ„ of the StudeÌ„t / coÌ„cerniÌ„g tayled laÌ„des The .xxxii. chapi Fo. 74. Addicion Fo. 77. ¶ Finis Tabule ¶ Thus endeth the fyrste Dialogue in Englisshe / with the Addicions bytwene a Doctoure of diuinitie and a Student in the lawes of EnglaÌ„de which treateth of diuers thynges that be shortly touched in the fyrst lesse of thê present boke before the introduccion ¶ Imprynted at LondoÌ„ in the Fletestrete / by me Robert Redman dwellynge in saint Dunstones parysshe / nexte the churche In the yere of our lorde god M. CCCCC XXXii The fyrst day of the moneth of Iuly ∴ Robert Redman ¶ The seconde dyalogue in englysshe / bytwene a doctour of diuynyte and a student in the lawes of Englande / newly corrected and imprinted with newe addycions HEre after foloweth the Seconde dyaloge in englisshe bytwene a doctour of diuinite a student in the lawe of EnglaÌ„de In the begynnynge of which dyalogue the doctour answereth to certayne questions / whiche the student made to the doctoure before the makynge of this dyalogue concernynge the lawes of Englande conscieÌ„ce / as appereth in a dyalogue made bytwene them in latin the 24. chap. And he answereth also to diuers other questions that the studeÌ„t maketh to hym in thê dyaloge of the law of EnglaÌ„de and conscieÌ„ce And in diuers other chapiters of this present dyalogue is touched shortly / howe the lawes of Englande are to be obserued kepte in this realme / as to temporall thyngê as well in lawe as in conscieÌ„ce before any other lawes And in some of the chapitres therof is also touched that spirituall Iuges in diuers cases be bounde to gyue theyr iugemeÌ„tes accordynge to the kyngê lawe And in the later ende of the boke the doctoure moueth diuers cases concernynge the lawes of England / wherin he douteth howe they may stande with conscience / wherunto the student maketh answere in suche maner as to the reder wyll appere ¶ The introductyon STudent In the later ende of our fyrste dyalogue iÌ„ latyn / I put dyuers cases grounded vpon the lawes of EnglaÌ„de / wherin I douted and yet do what is to be holden therin in conscyence But for as moche as the tyme was than farre paste / I shewed the that I wolde not desyre the to make answere to theÌ„ forthwith at that tyme / but at some better leyser whervnto thou saydest thou woldest nat only shewe thyne opinyon in tho cases / but also in suche other cases as I wolde put wherfore I pray the now for as moche as me thinkethe thou haste good leyser that thou wylte shewe me thyne opinyon therin ¶ Doctour I wyll with good wyll acomplysshe thy desyre but I wolde that whan I am in doute what the lawe of this realme is in suche cases as thou shalte put / that thou wylte shewe me what the lawe is therin for though I haue by occasyon of our first dyalogue in latyn / lerned many thiÌ„ges of the lawes of this realme / which I knew nat before yet neuerthelesse there be many mo thynges that I am yet ignorant in / that peraueÌ„ture in these selfe cases that thou haste put / and entendest here after to put and as I sayd in the first dyalogue in latyn / the .xx. chapyter / to serche conscyence vpon any case of the lawe / it is in vayne / but where the lawe in the same case is perfytely knowen ¶ Student I wyll with good wyll do as thou sayest / I entende to put dyuers of the same questyons that be in the laste chapytre of the sayde dyalogue in latyn and somtyme I entende to alter some of them and to adde some newe questyons to them / suche as I shall be moste in doute of ¶ Doctour I pray the do as thou sayest / I shall with good wyll eyther make answere to them forthwith as well as I can / or shall take lenger respyte to be aduysed / or els perauenture agre to thyne opinyon therin / as I shall se cause But fyrst I wolde gladly know the cause why thou hast begon this dyalogue in the englysshe tonge / nat in the latyn toÌ„ge / as the fyrst cases that thou desyredest to knowe myne opinyon be in / or in frenche as the substaunce of the lawe is ¶ Student The cause is this It is ryght necessary to all men in this realme / bothe spirituall temporall for the good orderiÌ„ge of theyr coÌ„scieÌ„ce to knowe many thyngê of the lawe of Englande that they be ignoraunt in And thoughe it had ben more pleasaunt to them that be lerned in the latyne tonge to haue had it in latyne rather than in englysshe yet neuerthelesse for as moche as many can rede englysshe that vnderstaÌ„de no latyn / some that can nat rede englysshe by heriÌ„ge it redde may lerne diuers thynges by it that they shulde nat haue lerned if it were in latyn Therfore for the ê“fite of the multitude it is put into the englysshe tonge rather than into the latyn or freÌ„che tonge For if it had ben in frenche fewe shulde haue vnderstande it / but they that be lerned in the lawe / and they haue leste nede of it / for as moche as they knowe the law in the same cases wtout it / can better declare what conscieÌ„ce wyll therupon / than they that knowe nat the lawe nothiÌ„ge at all To them therfore that be nat lerned iÌ„ the lawe of the realme this treatice is specially made / for thou knowest well by suche studyes thou haste taken to some knowlege of the law of the realme that is to them moste expedient ¶ Doctoure It is true that thou sayest therfore I praye the nowe procede to thy questions ¶ The fyrst question of the Student The fyrste chapitre STtudent If tenant in tayle after possibilitie of issue extincte do wast / whether dothe he therby offende in conscience thoughe he be nat punysshable of waste by the lawe ¶ Doctoure Is the lawe clere that he is nat punysshable for
/ wherby it is ordeyned that a tenant for terme of lyfe shall haue in ayde / for he can nat say but that he toke a greater estate by the lyuerey of season that was made to hym whiche yet coÌ„tinueth than for terme of lyfe / so I thynke hym nat bounde to make any restitucion to hym in the reuercion in this case for the waste ¶ Do. Is thy mynde onely to proue that thê tenant is nat bounde to make restitucion to hym in the reuercion for the waste or that thou thynkest that he may with clere conscieÌ„ce do all maner of wast ¶ Stud. I entende to proue no more but that he is nat bouÌ„de to restitucion to hym in the reuercion ¶ Do. Than I wyll ryght well agree to thyn oppinion for the reason that thou haste made / but if thy mynde had ben to haue proued that he myght with clere conscience haue done all maner of waste I wolde haue thought the contrary therto / and that the tenant in fee simple may nat do all maner of waste destruction with conscieÌ„ce / as to pull downe houses make pastures of cyties townes / or to do suche other actes whiche be agaynst the comon welthe And therfore some wyll say that tenant in fee simple may nat with coÌ„scieÌ„ce destroye his wodes cole pyttes wherby a hole contrey for theyr money haue had fuell And yet though he do so he is nat bounde by conscience to make restitucion to no person in certayne But now I pray the or thou ê“cede to the seconde case that thou wylte somwhat shewe me what thou meanest whan thou sayest at the comon lawe it was thus or thus I vnderstande nat fully what thou meanest by that tme at the comon lawe ¶ Stud. I shall with good wyl shewe the what I mene therby ¶ What is ment by this terme whan it is sayd / thus it was at the comon lawe The seconde chapitre STudent The comon lawe is taken thre maner of ways Fyrst it is taken as the law of this realme of EnglaÌ„de disceyuered from all other lawes / vnder this maner taken It is oftentymes argued in the lawes of Englande what maters ought of ryght to be determined by the comon law / what by the admiralles courte or by the spirituall courte And also if an obligacion bere date out of the realme / as in Spayne / FrauÌ„ce / or suche other It is sayd in the lawe trouthe it is that they be nat pledable at the comon lawe Secondely the comon lawe is taken as the kynges courtes of his benche or of the comon place / it is so taken whan a ple is remoued out of auncien demeane for that the lande is franke fee and pledable at the comon lawe / that is to saye in the kynges courte nat in ancien demeane And vnder this maner taken / it is ofteÌ„tymes pleaded also in base courtes as in court Barons / the Contie the court of Pypouders and suche other that this mater or that cÌ„ ought nat to be determined in that courte but at the comon lawe / that is to saye in the kynges courtes cÌ„ Thyrdely by the comon lawe is vnderstande suche thyngê as were lawe before any statute made in that point that is in question so that / that poynt was holden for lawe by the general or particuler customes maximes of the realme or by the lawe of reason the lawe of god no other lawe added to them by statute nor otherwyse / as iÌ„ the case before rehersed in the fyrste chapitre where it is sayde that at the comon lawe tenante by the curtesy tenant in dower were punysshable of waste / that is to say / that before any statute of waste made they were punysshable of waste by the grounde maximes of the lawe vsed before the statute made in that pointe / but tenant for terme yf lyfe ne for terme of yeres were nat punysshable by the sayde groundes maximes tyll by the statute remedy was gyuen agaynste them therfore it is sayde that at the comon law they were nat punysshable of waste ¶ Doc. I pray the now procede vnto the seconde question ¶ The seconde question of the student The thyrde chapitre STudent If a man be outlawed neuer had knowlege of the sute / whether may the kynge take all his goodes reteyne them in conscience as he maye by the lawe ¶ Docour What is the reason why they be forfeyted by the lawe in that case ¶ Stud. The very reason is for that it is an olde custume an olde maxime in the lawe that he that is outlawed shall forfeyte his goodes to the kynge / and the cause why that maxime began was this WhaÌ„ a maÌ„ had done a trespace to another or an other offence wherfore processe of outlagary laye / he that the offence was done to had taken an accion agaynst hym accordyng to the lawe / if he had absented hym selfe and had had no laÌ„des there had ben no remedye agaynst hym for after the lawe of EnglaÌ„de no man shal be condemned without aunswere / or that he appere and wyll nat answere / except it be by reason of any statute Therfore for the punisshement of suche offenders as wolde nat appeare to make answere to be iustified in the kyngê courte / it hath ben vsed without tyme of mynde / that an attachemeÌ„t in that case shulde be directed agaynste hym returnable into the kynges benche or the comon place / and if it were returned there vpoÌ„ that he had nought wherby he might be attached that than shulde go forthe a Capias to take his persone / and after an alias Capias / than a Pluries and if it were returned vpon euery of the sayd Capias that he coulde nat be founde and he appered nat than shulde an ExigeÌ„t be dyrected agaynste hym whiche shulde haue so longe daye of returne / that fyue couÌ„ties myght be holden before the returne therof and in euery of the sayde fyue conties the defendant to be solemlye called and if he appered nat / than for his contumacy and disobedience of the lawe the coroners to gyue iugement that he shal be outlawed / wherby he shall forfeyt his goodes to the kynge lese diuers other aduantages in the law y nedeth nat here to be remeÌ„bred nowe And so bycause he was in this case called accordynge to the lawe appered nat it semeth that the kyng hath good tytle to the goodes bothe in lawe coÌ„scieÌ„ce ¶ Doctoure If he had knowelege of the sute in very dede it semeth the kynge hath good tytle in coÌ„science as thou sayest But if he had no knowlege therof it semeth nat so / for the defaut that is adiuged in hiÌ„ as it appereth by thyne owne reason is his contumacie and disobedience of the lawe / and if he were ignoraunt of the sute / than can there ben assigned in
the straunger be nat sufficient to make recompence for the wast done ¶ Doctoure Is the lawe clere in this case that he in the reuercion shal recouer agaynst the tenauÌ„t for terme of lyfe thoughe that he assented nat to the doyng of the wast ¶ Student ye verely / and yet if the tenauÌ„t for terme of lyfe had ben bouÌ„den in an obligacion in a certeyne suÌ„me of money that he shulde do no waste he shuld nat forfayt his boÌ„de by the wast of a strauÌ„ger / and the diuersite is this It hathe ben vsed as an auncient maxime in the lawe that tenaunt by the curtesy and tenauÌ„t in dower shuld take the lande with this charge / that is to saye / that they shulde do no waste them selfe ne suffre none to be done / and whan an accion of wast was gyuen after agaynst a tenaunt for terme of lyfe thaÌ„ was he taken to be in the same case as to that poynt of waste as tenaunt by the curtesy and tenaunt in dower was / that is to saye / that he shulde do no waste nor suffre none to be done / for there is a nother maxime in the lawe of Englande that all cases lyke vnto other cases shal be iuged aft the same lawe as the other cases be syth no resoÌ„ of diuersite can be assigned why thete naÌ„t for terme of lyfe after an accioÌ„ of wast was gyueÌ„ agaynst hiÌ„ shuld haue any more fauour iÌ„ the lawe thaÌ„ the tenaÌ„t by the curtesie or tenauÌ„t iÌ„ dower shuld / therfore be is put vnd the same maxime as they be / that is to say / that he shall do no wast ne suffre none to be done / and so it semethe that the lawe in this case dothe nat considre the abilite of the persone that dothe the waste whether he be able to make recompeÌ„ce for the wast or nat But the assent of the sayd tenauntes wherby they haue wylfully taken vpon theÌ„ the charge to se that no wast shal be done ¶ Doctor I haue herde that if houses of these tenauntes be destroyed with sodeyne tempest or with straunge enemies that they shall nat be charged with wast ¶ Student Trouthe it is ¶ Doct. And I thynke the reason is bycause they can haue no recouere ouer ¶ Student I take nat that for the reason but that it is an olde reasonable maxime iÌ„ the lawe that they shuld be discharged iÌ„ those cases / how be it some wyll saye that in those cases the lawe of reason doth discharge them therfore they saye that if a statute were made that they shulde be charged in those cases of wast that the statute were agaynst reason and nat to be obserued / but yet neuertheles I take it nat so / for they myght refuse to take suche estate if they wolde / and if they wyll take the state after the lawe made it semeth reasonable that they take it with the charge and with the condicion that is appoynted therto by the lawe thoughe hurte myght folowe to theÌ„ afterward therby / for it is oftentymes sene iÌ„ the lawe that the lawe doth suffre him to haue hurt without helpe of the lawe that wyll wylfully renne into it of his owne acte nat coÌ„pelled therto and aiugeth it is folly so to renne into it / for whiche folly he shall also be many tymes without remedy in conscience As if a man take landes for terme of lyfe and byndeth hym selfe by obligacion that he shall leue the lande in as good case as he founde it / if the houses be after bloweÌ„ downe with tempest or destroyed with straunge enemies as in the case that thou hast put byfore he shal be bouÌ„de to repayre them or els he shall forfayte his obligacioÌ„ in lawe conscience bycause it is his owne acte to bynde hiÌ„ to it / yet the lawe wolde nat haue bounde hym therto as thou hast sayd byfore So me thiÌ„keth that the cause why the sayd tenauntes be discharged in the lawe in an accion of wast whaÌ„ the houses be destroyed by sodeyne tempest or by straunge enemyes is by a speciall reasonable maxime in the lawe / wherby they be excepted fro the other generall bonde byfore reherced / that is to saye they shall at theyr peryl se that no waste shal be done and nat by the lawe of reason / and syth there is no maxime in this case to helpe this tenaunt ne that he can nat be holpeÌ„ by the lawe of reason / it semeth that he shal be charged in this case by his owne acte bothe in lawe conscience whether the straunger be able to recompence hym or nat ¶ Doctour I doute iÌ„ this case whether the maxime that thou spekest of be reasonable or nat / that is to say / that tenauntes by the curtesye tenauntes in dower were bounden by the comon lawe lawe that they shulde do no waste them selfe / and ouer that at theyr peryll to se that no waste shulde be done by none other For that lawe semeth nat reasonable that byndeth a man to an impossibilite And it is impossible to preuent that no wast shal be done by straungers / for it may be sodeynly done iÌ„ the nyght that the tenauÌ„tê can haue no notice of / or by great power that they be nat able to resyste / and therfore me thiÌ„keth they ought nat to be charged in those cases for the waste / without they may haue good remedy ouer and thaÌ„ percase the sayd maxime were sufferable / els my thynketh it is maxime agaiÌ„st reason ¶ StudeÌ„t As I haue sayd before no man shal be compelled to take that boÌ„de vpon hym but he that wyll take the lande and if he wyll take the lande it is reasoÌ„ he take the charge as the lawe hath appoynted with it / and thaÌ„ if any hurte growe to hym therby it is throughe his owne acte and his owne assent / for he myght haue refused the lease if he wolde ¶ Doctoure Thoughe a man may refuse to take estate for terme of lyfe or for terme of yeres / and a womaÌ„ may refuse to take her dower yet tenauÌ„t by the curtesy can nat refuse to take his estate for immedeatly after the deth of his wyfe the possession abideth styll iÌ„ hym by the acte of the lawe without entre / and thaÌ„ I put the case that after the deth of his wyfe he wolde weyue the possessioÌ„ after wast were done by a strauÌ„ger whether thiÌ„kest thou that he shuld answere to the wast ¶ Stu. I thynke he shulde by the lawe ¶ Doct. And howe staÌ„deth that with reasoÌ„ / seyng there is no defaut iÌ„ hiÌ„ ¶ Stu. It was his defaut / at his owne peryll that he wolde marye an enheritrice whervpon such dauÌ„ger myght folowe ¶ Doc. I put case that he were withiÌ„ age at the mariage or that the laÌ„de disceÌ„ded to his wyfe aft he maried her Stu. there thou mouest a 〈◊〉 doute than the fyrste question is /
though it were as thou sayst / yet thou cannest nat say but that there is as great defaut in hiÌ„ as is in hym in the reuercion / that there is as great reason why he shulde be charged with the waste as that he in the reuercion shulde be disherited and haue no maner remedy ne yet no profytte of the lande as the other hathe / and thoughe he sayd maxime may be thought very streyt to the sayd tenauntes yet is it for to be fauoured as moche as may be reasonably / bycause it helpeth moche the comon welthe / for it hurteth the comon welthe greately whan wodes and houses ben destroyed / if they shulde answere for no waste / but for waste done by them selfe there myght be waste done by straungers by theyr coÌ„mauÌ„demeÌ„t or assent in suche colourable maner that they iÌ„ the reuercion shulde neuer haue ê“fe of theyr assent ¶ Doctoure I am coÌ„tent thyne opinion stande for this tyme / and I praye the nowe procede to a nother question ⧠The fourth question of the student The .v. Chapitre STudente If he that is the very heyre be certified by the ordinarie bastarde and after bryng an accion as heyre agaynste an other ê‘sone / whether may any man knowyng the trouthe be of counsayle with the tenaunt and plede the sayd certificate agaynst the demaundaunt by conscience or nat ¶ Doctoure Is the lawe in this case that al other against whome the demaundaunt hathe tytle shall take aduaÌ„tage of this certificate as well as he at whose sute he is certified bastarde ¶ Student ye verely / that for two causes / wher of the one is this There is an old maxime in the lawe that a mischyfe shal be rather suffred thaÌ„ an inconuenieÌ„ce / than in this case if a nother writte shuld afterwarde be sent to a nother bysshope iÌ„ an other accion to certifie wether he were bastarde or nat / peraduenture that bysshope wolde certifie that he were mulier / that is to say lawfully begotten and than he shulde recouer as heyre / and so he shulde in one selfe court be taken as mulier bastarde / for auoydynge of whiche contrariosyte the lawe wyll suffre no mo wrytes to go forth in that case / and suffreth also all men to take aduauntage of that certificate rather thaÌ„ to suffre suche a contradicion in the courte whiche in the lawe called an inconuenieÌ„ce / the other cause is bycause this certificate of the bysshope is the hyest trial that is iÌ„ the law iÌ„ this behalfe But this is nat vnderstaÌ„de but where bastardy is layde in one that is ê‘ty to the wryt / for if bastardy be layde in one that is estraÌ„ge to the writ as iÌ„ a vouch pray en ayde or suche other / than that bastardy shal be tried by .xii. meÌ„ by which triall he iÌ„ whome the bastardy is layde shall nat be coÌ„cluded bycause he is nat priue to the trial may haue no attaiÌ„t / but he that is ê‘ty to the issue may haue attaint / therfore he shal be coÌ„cluded none other but he for as moche as the sayd maxime was or deyned to eschewe an incoÌ„uenieÌ„cy as byfore apê‘eth it semeth that euery man lerned may with coÌ„scieÌ„ce plede the said certificate for auoydyng therof / gyue couÌ„saill therin to the ê‘ty accordyng vnto the lawe for els the sayd incoÌ„uenieÌ„cy must nedely folowe But yet neuertheles I do nat meane therby that the party may after whan he hath barred the demauÌ„daÌ„t by the sayd certificate reteine the lande in coÌ„scieÌ„ce by reason of the sayd certificate / for though ther be no lawe to coÌ„pel hym to restore it / yet I thynke well that in coÌ„science he is bounde to restore it / if he knowe that the demaundauÌ„t is the very true heyre wherof I haue put diuerse cases lyke in the .xvii. chapi of our fyrst dialogue iÌ„ latyn but my enteÌ„t is that a maÌ„ lerned iÌ„ the lawe iÌ„ this case other lyke may with coÌ„scieÌ„ce gyue his counsayle accordynge to the lawe in auoydyng of such thyngê as the lawe thynke it shuld for a resonable cause be eschewed ¶ Doc. Though he that doth nat know whether he be bastarde or nat may gyue his counsayle also plede the sayd certificate yet I thynke that he that doth knowe hym selfe to be the very true heyre may nat plede it / that is for two causes Wherof the one is this Euery man is bounde by the lawe of reason to do as he wolde be done to / but I thynke that if he that pledeth that certificate were in lyke case he wold thynke that no maÌ„ knowyng the sayd certificate to be vntrue myght with conscience plede it agaynst hiÌ„ / wherfore no more may he plede it agaynst none other The other cause is this / although the certificate be pleded yet is the tenaunt bouÌ„den in conscience to make restitucion therof as thou hast sayd thy selfe / thaÌ„ in case that he wolde nat make restitucion / than he that pleadeth the plee shulde renne therby in lyke offence / for he hathe holpen to set the other man in suche a liberty that he may chose whether he wil restore the laÌ„de or nat / and so he shulde put hym selfe to the ieoparty of a nother mannes conscience And it is wryten Ecclesiasti .iii. Qui amat periculum peribit in illo That is / he that wylfully wyll put hiÌ„ selfe in ieoparty to offende shal perysshe therin / and therfore it is the surest way to eschew perylles / fro hym that knoweth that he is heyre nat to plede it / and as for the inconuenience that thou sayest must nedely folowe but the certificate be pleded as to that it may be answered that it maye be pleded by some other that knoweth nat that he is very heyre / and if the case be so farre put that there is none other lerned there but he than me thynketh that he shall rather suffre the sayd inconuenience than to hurt his owne conscience / for alwaye charite beginneth at him selfe so euery man ought to suffre all other offences rather than he hym selfe shulde offende And nowe that in this case I pray the procede to thou knowest myne opinion a nother question ⧠The .v. question of the student The .vi. Chapitre STudent Whether may a man with coÌ„science be of counsayle with the playntyfe in an accion of the comon lawe knowynge that the defendaunt hathe sufficient mater in conscience wherby he may be discharged by a Sub pena in the chauÌ„cery whiche he can nat pleade at the comoÌ„ lawe or nat ¶ Doctoure I praye the put a case therof in certeyne for els the questioÌ„ is very generall ¶ Student I wyll put the same case that thou puttest iÌ„ our fyrste dialogue in latyne the .x. Chapitre that is to say / if a man bounde in an obligacion / pay the money taketh none acquitaunce so that by
nat vouche for him excepte it be that he knoweth that the tenaunt hathe a true cause of voucher and of lyen / and that he doth it to brynge hym therto / in lykwyse he may nat pray in age for hym oneles he knowe the praye haue good cause of voucher and lyen ouer / or that he knowe that the pray hath somwhat to pleade that the tenaunt maye nat pleade as vyllen age in the demaundaunte or suche other ¶ Doctour Thoughe the playntyfe hath brought an accion that is vntrue and nat mayntenable in the lawe / yet the defendaunte dothe wronge to the playntyfe in the withholdynge of the profytes as wel byfore the accion brought as hangynge the accion / and that wronge as it semeth the couÌ„saylour doth mayntaine / and also sheweth hym selfe to fauoure the partie in that wronge whan he gyueth coÌ„cell agaynst the accion ¶ Sudent If the playntyfe do take that for a fauoure and a maynteynauÌ„ce of his wronge he iugethe ferther than the cause is gyuen / so that the couÌ„saylour do no more but gyue couÌ„sayle agaynst the accion / for though he gyue hiÌ„ couÌ„sayle to withstande the accioÌ„ for the vntruth of it / that he shulde nat coÌ„fesse it to make therby a fine to the kyng without cause / yet it may stande with that he may gyue counsayle to the partie to yelde the profytes / and therfore I thinke he may in this case of counsayle with hym at the comon lawe and be agaynst hym in the chauÌ„cery and in eyther courte gyue his couÌ„sayl without any contrariosite or hurte of conscience / and vpon this grounde it is that a man may with good conscience be of couÌ„sayle with hym that hath lande by discent or by a discontinuauÌ„ce withouten tytle / if he that hathe the ryght brynge nat his accion accordynge to the lawe for the recouerynge of his ryght in that behalfe ⧠The seuenth question of the studente The .viii. Chapitre STudent If a man take a distresse for dette vpon an obligacioÌ„ or vpon a coÌ„tracte or suche other thynge that he hath right title to haue but that he ought nat by the lawe to distrayne for it / and neuertheles he kepeth the same distresse in pounde tyll he be payed of his dutye / what restitucion is he bounde to make in this case / whether shall he repay the money bycause he is come to it by an vnlawfull menes or onely to restore the partye for the wrongfull takyng of the distres or for neyther I pray you shewe me ¶ Doctoure what is the lawe in this case ¶ Student That he that is distrayned may brynge a speciall accion of trespasse agaynst hiÌ„ that distreyned / for that he toke his beestê wroÌ„g fully and kept them tyll he made a fyne / therfore he shal recouer that fyne in damages as he shal do for the residue of trespas for that takyng of the money by suche coÌ„pulcion is taken in the lawe but as a fyne wrongfully taken / thoughe it be his duete to haue it ¶ Doctour yet though he may so recouer me thynketh that as to the repayment of the money he is nat bounde therto in coÌ„science so that he take no more thaÌ„ of ryght he ought to haue / for though he come to it by an vniust meane / yet whaÌ„ the money is payed hym it is his of ryght and he is nat bounde to repaye it oneles it be recouered as thou sayd / and than whan he hathe repayed it he is as me thynkethe restored to his fyrst accioÌ„ / but to the redelyuere of the beestes with suche damages suche hurte as he hathe by the distresse I suppose he is bounde to make recompence of them in conscience without compulcion or sute in the lawe / for thoughe he myght lawfully haue sued for his duete in suche maner as the lawe hathe ordred / yet I agre well that he maye nat take vpon hym to be his owne iuge and to come to his duty agaynst the order of the lawe / and therfore if any hurte come to the partie by that disorder he is bounde to restore it But I wolde thynke it were the more doute if a maÌ„ toke such a distresse for a trespasse done to hym and kepeth the distresse tyll amendes be made for the trespasse / for iÌ„ that cas the damages ben nat in certayne but be arbitrable eyther by assent of the parties or by .xii. men / and it semeth that there is no asseÌ„t of the partie in this case specially no fre assent / for that he dothe is by compulcion and to haue his dystres agayne / and so his assent is nat moche to be pondered in that case / for all is the assessynge of hiÌ„ that toke the distresse / and so he hathe made hiÌ„ selfe his owne iuge / and that is prohibited in all lawes / but in that case where the distresse is takeÌ„ for dette he is nat his owne iuge / for the dette was iuged incertaine by fore by the fyrst contracte / therfore some thynke great diuersite betwene the cases ¶ Student By that reason it semeth that if he that distrayneth in the fyrste case for the dette take any thynge for his damagê that he is bounde in conscience to restore it agayne / for damagê be arbitrable and nat certayne no more than trespasse is / me semeth that both in the case of trespasse and dette he is bouÌ„de in coÌ„scieÌ„ce to restore that he taketh / for thoughe he ought in ryghte to haue lyke suÌ„me as he resceyueth / yet he ought nat to haue that money that he receyueth / for he came to that money by an vniust menes / wherfor it semeth he ought to restore it agayne ¶ Doctour And if he shuld be coÌ„pelled to restore it againe shuld he nat yet for that he receyued it ones be barred of his fyrst accion nat withstaÌ„dyng the repaymeÌ„t ¶ Stud. I wyll nat at this tyme clerely assoyle the that question / but this I wyll say that if any hurte come to hym therby it is through his owne defaut for that he wolde do agaynst the lawe / but neuertheles a lytell I wyll say to thy questioÌ„ / that as me semeth whaÌ„ he hath repayed the money that he is restored to his first accioÌ„ As if a maÌ„ coÌ„deÌ„pned in an accion of trespasse pay the money / after the defendauÌ„t reuers the iugement by a wrytte of errour and haue his money repayed / than the playntyfe is restored to his fyrst accioÌ„ And therfore if he that iÌ„ this case toke the money restored that he toke by the wrong full distresse or that he ordred the mater so liberally that the other murmure nat necoÌ„playne nat at it / me semethe he dyd verey well to be sure in conscience and therfore I wolde aduyse euery man to be wel ware howe he distrayneth in suche case agaynst the lawe ¶ Doctoure Thy counsayle is good / and I note moche in
the feoffement was made to his owne vse And if the feoffemeÌ„t were made vpon a bargayne and a contracte betwene them / than it is to se whether they remembred the rent in in theyr bargayne / or that they remeÌ„bred it nat / if they remembred it in theyr bargayne and contracte / than coÌ„science must folowe the bargaine / as thus if they agreed that the grauntee shulde haue the rent after the porcion in the other acre than by conscience he ought to haue it thoughe it be extincted iÌ„ the lawe And if they agreed that the hoole rente shulde be extyncte and made theyr pryce accordynge than it is extyncte in lawe and conscience / and if they clerely forgete it and made no mencion of it / or for lacke of connynge toke the lawe to be that it shulde continue in the other acre after the porcion and made theyr price accordynge / ponderynge onely the value of the acre that was solde than me thynketh / it dothe continue in conscience after the porcion / and if the feoffement were made to the vse of the grauÌ„tee / than it semeth the hole rente is extyncte in lawe and conscience ¶ Student Than take that to be the case / that is to saye / that the feoffement was made to the vse of the grauÌ„tee ¶ Doctoure What is than thyne opinion therin ¶ Student That the rente shulde abyde in conscience after the porcion for the acre that remayneth in the handes of the grauntoure natwithstandynge it be extyncte in the lawe ¶ Doctoure Than shewe me thyne opinion iÌ„ this that I shall aske the. Of what lawe is it that grauntes of rent and of suche other profites out of landes maye be made and that they shal be good and effectual to the grauÌ„tees / whether is it by the lawe of reason or by the lawe of god or by the custome and lawe of the realme ¶ Studente I thinke it is by the lawe of reasoÌ„ / for by the same reason that a man may gyue awaye all his landes he maye as it semethe gyue awaye the profytes therof or graunte a rent out of the lande if he wyl ¶ Doctour But than by what lawe is it that a man maye gyue awaye his landes / I trowe by none other lawe but by the custome of the realme / for by statute all alienacions and gyftes of landes maye be prohibite / and than that reason proueth nat that grauntes of the ê“fytes of lande or of a rent shuld be good by cause he maye alien the lande / if alienacions of lande be by custome and nat by the lawe of reasoÌ„ as I suppose it is / wherof I touched somwhat in our fyrste dialogue in latyne the .xix. Chapitre And also if grauntes shulde haue theyr effecte by the lawe of reason than reason wolde that they shulde be good by the onely word of the grauntoure as well as by his dede / that is nat so / for without dede the graunt of rent is voyde in the lawe and so my thinketh that grauÌ„tes haue theyr effecte onely by the lawe of the realme ¶ StudeÌ„t Admyt it to be so what meanest thou therby ¶ Doctour I shal shewe the here after as I shall shewe the the cause why I thynke the rente is extyncte in conscience as well as in lawe And fyrste as I take it the reason why it is extyncte in the lawe is bycause the rent by the fyrst graunt was goynge out of bothe acres / and was nat goyng parte out of the one acre and part out of the other / but the hole rent was goyng out of bothe / and than whan the grauntee of his one foly wyll take estate in the one acre wherby that acre is discharged / than the other acre also muste be discharged oneles it shulde be apporcioned and the law wyl nat that any apporcionemeÌ„t shulde be in that case / but rather in as moche as the partie hathe by his owne acte discharged the one acre the lawe dischargeth also the other / rather than to suffre the other acre to be charged coÌ„trarie to the fourme of the graunte / for this reÌ„t begynneth all by the acte of the party and as I haue herde is called a reÌ„t agaynst comoÌ„ ryght / wherfore it is nat fauored iÌ„ the law as a rent seruice is / and than me thynketh that for as moch as it is nat grouÌ„ded by the lawe of reason that grauntes of rent shulde be made out of lande / but by the custome and law of the realme as I haue sayd byfore / that so in lyke wyse it remayneth to the lawe and custome of the realme to determine howe loÌ„g suche rentes shall continue And whan the lawe iugeth suche rentes to be voyde I suppose that so doth conscience also / except the iugement of the lawe be agaynste the lawe of reason or the lawe of god / as it is nat in this case for in this case he that taketh the feoffement hath profite by the feoffement / and knoweth that he hath suche a rent out of the lande / and that his purchace shulde extynct it / wherby it appereth that he asienteth vnto the lawe wherto he was nat compelled / and that is his owne acte and his owne defaut so to do / whiche shall extyncte his hole rent as well in consciente as in the lawe But if he haue no ê“fyte of the lande or be ignoraunt that he hathe suche a rent out of the lande whiche is called ignoraunce of the dede / or if he be ignorauÌ„t that the lawe wolde extyncte his hole reÌ„t therby / which is called ignorauÌ„ce of the lawe / than me thynkethe it remayneth in conscience after the porcion ¶ Student Ignoraunce of the lawe or of the dede helpeth nat but in fewe cases iÌ„ the lawe of Englande ¶ Doctoure And therfore it muste be refourmed by conscience / that is to say by the lawe of reasoÌ„ / for whaÌ„ the generall maximes of the lawe be iÌ„ any particuler cases against the lawe of reason as this maxime semeth to be bycause it excepteth nat theÌ„ that be ignorauÌ„t thoughe it be an ignoraunce in vincible thaÌ„ do they nat agree with the lawe of reason ¶ Student We thynketh that ignoraunce iÌ„ this case helpeth lytell / for whan a man byethe any lande or taketh it of the gyfte of any other he taketh it at his peryl / so that if the tytle be nat good ignorauÌ„ce caÌ„ nat helpe / for the byer muste byware what he byeth / and so in this case if the takyng of the one acre shulde extincte the hole rent in conscience if he were nat ignoraunt / some thynketh it shulde in lyke wyse extincte it also thoughe he be ignoraunt of the lawe or of the dede / for euery man must be compelled to take notyce of his owne tytle and out of what lande his rent is goynge / some thynketh ignoraunce is but lytell to be coÌ„sidered in this case ¶ Doctour
If a man bye laÌ„de or take it of the gyfte of an other it is reason that he take it with the peryll though he be ignorauÌ„t that a nother hath ryght / for it were nat standynge with reason that his ignoraunce shulde extyncte the ryght of a nother / but in this case ther is no doute of the ryght of the lande / but al the doute is howe the rent shal be ordred in conscience if he that hathe the rente take parte of the lande / and therin is great diuersite bytwene hym that is ignoraunt in the lawe / and him that knoweth the lawe / and knowethe well also that he hathe a rent out of that land and other For I put case that he asked counsayle of the grauntour hym selfe therin and he saynge as he thought tolde hiÌ„ that the takyng of the one acre shuld nat extyncte the rent but for the porcion and so he thynkynge the lawe to be toke the other acre of his gyfte Is it nat reasonable in that case that that ignoraunce shulde saue the rent in conscience ¶ Student yes / for there the grauntour hym selfe is partie to his ignoraunce and is in maner the cause therof ¶ Doctour And me thynkethe all is one if any other had shewed hym so / or if he had asked no counsayle at all / for me thynkethe it suffiseth in this case that he be ignorauÌ„t of the lawe / for why / it is more harde in this cas to proue that the rent shulde be extyncte in conscience thoughe he knowe it shal be extyncted in the lawe than to proue that it continueth in conscience after the porcion if he be ignoraÌ„t / thou thy self were of the same opinion / as it appereth in the begynnynge of this present Chapitre / but if that opinion were true it wolde be hard to ê“ue but that the sayd generall maxime were holly agaynste reason / thaÌ„ it were voyd / but I haue sufficiently answered therto as me semethe / and that it is extyncte in the lawe and also in conscience / excepte ignoraunce helpe it to be apporcioned And more ouer for as moch as apporcionemeÌ„t is suffred in the lawe where ê‘te of the land discendeth to the grauntee bycause no defaute can be assigned in hym / so me thynketh no defaute can be assigned in hym in conscience whaÌ„ he is ignorauÌ„t of the lawe or of the dede thoughe suche ignorauÌ„ce do nat excuse in the lawe of the realme ¶ Student I am contente with thyne opinion in this behalfe at this tyme. ⧠The .xv. question of the student The .xvii. Chapitre STudent A maÌ„ grauÌ„teth a reÌ„t charge out of two acres of lande / and after the grauntour enfeoffeth Henry hert in one of the sayd two acres to the vse of the sayd Henry herte and of his heyres / after the sayd Henry herte entendynge to extyncte all the rent causeth the sayd acre to be recouered agaynste hym to his owne vse in a wryt of entre in the post in the name of the grauntee and of other after the comon course / the grauntee nat knowyng of it / and by force of the sayd recouere the other demaundauÌ„tes entre and dye / lyuyng the grauntee / so that the grauÌ„tee is seased of al by the surueiour to the vse of the sayd Henry herte / whether is the sayd rent extyncte in conscience in parte nor in all or iÌ„ no parte ¶ Doctour I am in doute of the lawe in this case ¶ Student In what poynt ¶ Doctoure whether the hole rent be goynge out of the acre that remayneth in the handes of the grauÌ„tour bycause the grauntee cometh to the lande by waye of recouere / or that it shal be extyncte in the law / but after the porcioÌ„ by cause the grauÌ„tee hathe nat the acre to his owne vse / or that the hole reÌ„t shal be extincte iÌ„ the lawe ¶ Student The rent can nat be hoole goynge out of the acre that the grauntoure hathe / for this recouere is vpon a fayned tytle / the grauÌ„tour bycause he is strauÌ„ge to it shal be well resceyued to falsifie it But if the recouerye had ben vpon a true tytle than it had ben as thou sayest / for if the grauntee recouer the one acre agaynst the grauntour vpon a true tytle / the grauÌ„tour shall pay the hole rent out of that laÌ„de that remayneth in his haÌ„de / and as to the vse it maketh no mater to the grauntoure as to the lawe in whome the vse be / for the possession without the vse extynguyssheth the hole rent as agaynst hym in the lawe as well as if the possession vse were both ioyned to gether in the grauntee ¶ Doct. Than me thynkethe that the sayd Henry herte is bounden in conscience to paye the grauÌ„tee the rent after the porcion of that acre that was recouered / for it caÌ„ nat staÌ„de with conscience that he shulde lose his rent and haue no profites of the lande ¶ Student Than of whome shall he haue the other porcion of his rente ¶ Doctoure Is the lawe clere that the acre that the grauntour hath shal be in this case discharged in the lawe ¶ Student I take the lawe so ¶ Doctour And what in conscience ¶ Student As agaynste the grauntoure me thynketh / also it is extyncte in conscience for the reason that thou hast made in the .xvi. Chapitre / for it is all one in conscience in this case as agaynst the grauÌ„tour whether the recouere were to the vse of the grauntee or nat / especially seynge that the grauntoure is nat priuey to the recouery / for the vnite of possession is the cause of extinguisshemeÌ„t of the rent against the grauÌ„toure bothe in lawe and conscience where so euer the vse be / but if the grauntour had ben priuey to the cause of the extynguisshement as he was in the case that I put in the laste Chapitre where the grauntoure enfeoffed the grauntee of one of the acres to the vse of the grauntee there it is nat extyncte in conscience in that acre that remayneth in the handes of the grauntoure thoughe it be extyncted iÌ„ the lawe / bycause he was pryuey to the extynguisshement hiÌ„selfe / but he is nat so in this case / and therfore it is extyncte agaynst hym iÌ„ lawe and conscience And therfore me thynkethe that the grauntee shall in conscience haue the hoole rente of the sayd Henry herte that caused the sayd recouere to be had in his name / for in hym was all the defaute / but it is to be vnderstande that in all the cases where it is sayd byfore in this Chapitre or in the Chapitre nexte byfore that the rent is extincte in the lawe nat in conscience that in suche case all the remedies that the partie myght fyrste haue had for the rent at the comon lawe by distres assyse or otherwyse are determined / and the partie that ought to
it is no rent in the lawe / ne in the lawe he shall neuer haue remedy for it / thoughe it were assigned to hym to his heyres with out condicion / neyther by distresse / by Assyse / by writte of Annuite / nor otherwyse / but he shal be dryuen to sue in the chauncery for his remedy / and than whaÌ„ he sueth in the chauncery he must surmitte that he ought to haue it by conscience / and that he can haue no remedy for it in the lawe And than sythe he hathe no remedy to come to it but by way of coÌ„science it semeth it shal be taken that whan he hath recouered it that he ought to haue it in conscieÌ„ce and that to his owne vse without the contrarie cane be proued / and if the contrarie can be proued and that the entent of the feoffoure was that he shulde dispose it for hym as he shulde appoynt than hathe he the reÌ„t in vse to a nother vse / and so one vse shulde be depeÌ„dynge vpon a nother vse whiche is seldome sene and shall nat be intended tyll it be ê“ued / and so sythe no such matter is here expressed me thynkethe the rent shal be taken to be to the vse of hiÌ„ that it is payed to / that the lande in lykewyse that it is appoynted to hiÌ„ for nat paymeÌ„t of the sayd rent shal be also to his vse / howe thynkest thou / wyll conscience therin ¶ Doctour I thynke that as thou takest the lawe nowe that coÌ„science in this case the lawe be all one / for the lawe sercheth the same thynge in this case to knowe the vse that conscience doth / that is to say / the intent of the feoffour / and therfore I wold moue the ferther in one thynge ¶ Student What is that ¶ Doctoure That syth the intent of the feoffour / shal be so moch regarded iÌ„ this case why it ought nat also to be as moche regarded iÌ„ the case that is iÌ„ the last Chapitre next byfore this where the wordes be coÌ„dicionall / and gyue the feoffour a tytle of reentre / for me thynketh that though the feoffour may in that case reentre for the condicion broken that yet after his reentre he shal be seased of the lande after his entre to the vse of hym to whome the lande was assigned by the said indenture for lacke of payment of the rent bycause the intent of the feoffour shal be taken to be so in that case as well as in this And I praye the let me knowe thy mynde what diuersite thou puttest bytwene them ¶ Student Thou dryuest me nowe to a narowe diuersite / but yet I wyll answere thy therin as well as I can ¶ Doctour But fyrst or thou shewe me that diuersite I praye the shewe me howe vses began / why so moche lande hath ben put in vse in this realme as hath ben ¶ Stud. I wyll with good wyl say as me thinketh therin ⧠Howe vses of lande fyrst bygan / and by what lawe / and the cause why so moche land is put in vse The .xxii. Chapitre STudent Vses were reserued by a secondary conclusion of the lawe of reason in this maner / whan the generall custome of propertie wherby euery man knewe his owne good fro his neyghbours was brought in amonge the people It folowed of reason that suche landes and goodes as a man had ought nat to be taken fro hym but by his assent or by order of a lawe / and than syth it is so that euery man that hathe landes hathe therby two thynges in hym / that is to say / the possession of the laÌ„de whiche after the lawe of Englande is called the franketenement or the free holde / and the other is aucthoritie to take therby the profites of the lande / wherfore it foloweth that he that hathe lande intendeth to gyue onely the possession and free holde therof to a nother / and to kepe the profites to hym selfe ought in reason and conscience to haue the profites / seyng there is no lawe made to ê“hibite / but that in coÌ„science suche reseruacioÌ„ may be made And so whan a man maketh a feoffemente to a nother and inteÌ„deth that he hym selfe shal take the profites thaÌ„ that feffe is sayd seased to his vse that so enfeffed hym / that is to saye / to the vse that he shall haue the possession freeholde therof as in the lawe to that intent that the feoffoure shall take the profites / and vnder this maner as I suppose vses of lande fyrste began ¶ Doctour It semeth that the reseruyng of such vse is prohibite by the lawe / for if a man make a feoffemeÌ„te and reserue the profites or any parte of the profites as the gresse wode or such other / that reseruacioÌ„ is voyd in the lawe / and me thynkethe it is all one to say that the lawe iugeth suche a thynge if it be done to be voyde / and that the lawe prohibiteth that that thynge shall nat be done ¶ Student Trouthe it is that suche reseruacion is voyde in the lawe as thou sayest and that is by reason of a maxime iÌ„ the lawe that wylleth that suche reseruacion of parte of the same thyng shal be iuged voyde in the lawe / but yet the lawe dothe nat ê“hibite that no suche reseruacion shal be made / but if it be made it iugeth of what effecte it shal be that is to say that it shal be voyde / and so he that maketh such reseruacion offendeth no lawe therby / ne brekethe no lawe therby and therfore the reseruacion in conscience is good / but if it were prohibite by statute that no man shulde make suche reseruacion / ne that no feoffement of truste shulde be made / but that all feoffemeÌ„tes shulde be to the vse of hym to whome possession of the lande is gyuen / than the reseruacion of suche vse agaynst the statut shulde be voyde bycause it were agaynste the lawe / and yet suche a statute shulde nat be a statute agaynste reason bycause suche vses were fyrste grounded and reserued by the lawe of reasoÌ„ / but it shulde preuent the lawe of reason and shulde put away the coÌ„sideracion where vpon the lawe of reason was grounded byfore the statute made And than to thy other question / that is to saye / why so moche lande hathe ben put in vse / it wyll be somwhat longe and peradueÌ„ture to some tedious to shewe al the causes perticulerly / but the very cause whythe vse remayned to the feffe natwithstaÌ„dyng his owne feoffement or fyne and somtyme natwithstandynge a recouery agaynste hiÌ„ is al vpon one coÌ„sideracion after the cause and intent of the gyfte / fyne / or recouery / as is aforesayd ¶ Doctoure Thoughe reason may serue that vpoÌ„ a feoffement a vse may be reserued to the feoffour by the intent of the feoffour agaynste the fourme of his gyfte as thou hast sayde byfore
therin ¶ What is a nude contracte or naked promyse after the lawes of Englande / and whether any accion may lye thervpon The .xxiiii. Chapitre ¶ STudent Fyrste it is to be vnderstande that contractes be grounded vpon a custome of the realme and by the law that is called Ius gentium and nat dyrectely by the lawe of reason / for whan all thynges were in comon it neded nat to haue contractes / but after ê“perty was broughte in they were ryght expediente to all people / so that a man myght haue of his neyghboure that he had nat of his owne / and that coulde nat be lawfully but by his gyfte / by way of lendynge / concorde / or by some lease / bargaine / or sale / and suche bargaynes and sales be called contractes / and be made by assent of the parties vpon agrement bytwene them of goodes or landes for money or for for other recompence / but of money vsuell / for money vsuell is no contracte Also a concorde is properly vpoÌ„ an agremeÌ„t bytwene the parties with diuers artycles therin / some rysyng on the one ê‘t and some on the other / as if Iohan at style letteth a chambre to Henry herte and it is ferther agreed bytwene them that the said HeÌ„ry herte shall go to borde with the sayd Iohan at style / and the sayd Henry herte to paye for the chaÌ„bre and bordynge a certayne suÌ„me cÌ„ this is ê“perly called a concorde / but it is also a contracte and a good accion lyeth vpoÌ„ it / howe beit it is nat moche argued in the lawes of EnglaÌ„de what diuersitie is bytwene a coÌ„tracte / a coÌ„corde / a ê“myse / a gyfte / a loue / or a pledge / a bargayne / a couenaunt / or suche other / for the intente / of the lawe is to haue the effecte of the mater argued and nat the termes / and a nude contracte is where a man makethe a bargayne or a sale of his goodes or landes wtout any recoÌ„pence appoynted for it As if I saye to a nother I sell the all my lande or all my goodes and nothyng is assigned that the other shall gyue or pay for it / that is a nude contracte / and as I take it it is voyde in the lawe and conscience / and a nude or naked promyse is where a man promyseth an other to gyue hym certayne money suche a day or to buylde hym an house / or to do hym suche certayne seruyce / and nothynge is assigned for the money / for the buyldynge / nor for the seruyce / these be called naked promyses / bycause there is nothyng assigned why they shuld be made / and I thynke no accion lyethe in those cases thoughe they be nat perfourmed Also if I promyse to a nother to kepe hym suche certayne goodes sauely to such a tyme / and after I refuse to take theÌ„ ther lyeth no accion againste me for it / but if I take them and after they be lost or empeyred throughe my negligent kepynge / there an accion lyeth ¶ Doctour But what opinion holde they that be lerned in the law of EnglaÌ„de in suche promyses that be called naked or nude promyses / whether doo they holde that they that make the ê“myse be bouÌ„den in coÌ„science to perfourme theyr promyse thoughe they can nat be compelled therto by the lawe or nat ¶ Student The bokes of the lawe of EnglaÌ„de treate lytell therof / for it is lefe to the determinacion of doctoures / and therfore I pray the shewe me somewhat nowe of thy mynde therin / and than I shall shewe the therin somwhat of the myndes of diuerse that be lerned in the lawe of the realme ¶ Doctoure To declare that mater playnly after the saynge of doctoures it wolde aske a longe tyme and therfore I wyl touche it briefly to gyue the occasion to desyre to here more therin here after Fyrste thou shalte vnderstande that there is a promyse that is called an aduowe / that is a promyse made to god / and he that dothe make suche a vowe vpon a deliberate mynde entendynge to perfourme it is bounde in conscience to do it / thoughe it be onely made in the herte without pronouncynge of wordes / and of other promyses made to man vpon a certayne consideracion / if the promyse be nat agaynste the lawe As if A. promyse to gyue B. xx pounde / bycause he hathe made hym suche a house or hathe lente hym suche a thynge or suche other lyke / I thynke hym bouÌ„de to kepe his promyse But if his promyse be so naked that there is no maner of coÌ„sideracioÌ„ why it shulde be made / than I thynke hym nat bounde to perfourme it / for it is to suppose that there was some errour in the making of the promyse / but if suche a promyse be made to an vniuersitie / to a citie / to the churche / to the clergy / or to pore men of suche a place / and to the honoure of god or suche other cause lyke / as for mayntenaunce of lernynge / of the comon welthe / of the seruyce of god / or in relyefe of pouertie or suche other / than I thynke that he is bounden in conscience to perfourme it thoughe there be no coÌ„sideracion of worldly profite that the grauntour hath had or enteÌ„deth to haue for it / and in all suche promyses it must be vnderstande that he that made the promyse intended to be bounde by his ê“myse / for els comoÌ„ly after al doctoures he is nat bounde / oneles he were bounde to it byfore his promyse As if a man promyse to gyue his father a gowne that hathe nede of it to kepe hym fro colde / and yet thiÌ„keth nat to gyue it hym / neuertheles he is bouÌ„de to gyue it for he was bounde therto byfore Also after some doctours a man may be excused of suche a promyse in conscience by a casualite that cometh after the promyse if it be so that if he had knowen of that casualite at the makyng of the ê“myse he wolde nat haue made it And also suche promyses if they shall bynde they muste be honeste / lawful / and possible / and elles they are nat to be holden in conscience though there be a cause c. And if the promyse be good and with a cause thoughe no worldly profyte shall growe therby to hiÌ„ that maketh the promyse but onely a spirituall profyte as in the case byfore rehersed of a ê“myse made to an vniuersitie / to a citie / to the churche / or suche other and with a cause / as to the honoure of god other / there it is moste comonly holden that an accion vpon those promises lyeth in the lawe canon ¶ Stu. Whether dost thou meane in suche promyses made to a vniuersite / to a citie / or to suche other as thou haste reherced byfore / with a cause / as to the honoure of god or suche other That the
partie shal be bouÌ„de by his promyse if he inteÌ„ded nat to be bouÌ„den therby ye or nay ¶ Doctour I thynk naye no more than vpon ê“myses made vnto comon persones ¶ Student And than me thinketh clerely that no accion can lye agaynst hym vpon suche promyses / for it is secrete in his owne coÌ„cience whether he entended for to be bounde or naye And of the entente inwarde in the herte mannes lawe cane nat iuge / and that is one of the causes why the lawe of god is necessarye that is to say to iuge inwarde thynges / and if an accion shulde lye in that case in the lawe Canon / than shulde the lawe Canon iuge vpon the inwarde intente of the herte / whiche can nat be as me semeth And therfore after diuerse that be lerned iÌ„ the lawes of the realme all promyses shall be taken in this maner That is to say If he to whome the promyse is made haue a charge by reason of the promyse whiche hath also perfourmed than in that case he shall haue an accion for that thynge that was promysed thoughe he that made the promyse haue no worldly profite by it As if a maÌ„ saye to a nother / hee le suche a pore maÌ„ of his dissease / or make suche an hyghe waye / and I shall gyue the thus moche / and if he do it I thynke an accion lyeth at the comon lawe And more ouer thoughe the thynge that he shall do be al spirituall yet if he perfourme it I thynke an accion lyethe at the comon lawe As if a man say to a nother / fast for me all the next Lent and I shall gyue the .xx. pounde / he perfourmethe it / I thynke an accion lyeth at the comon lawe And in lyke wyse if a maÌ„ saye to a nother mary my doughter and I wyll gyue the .xx. pounde Vpon this promyse an accion lyeth if he mary his doughter / and in this case he cane nat discharge the promyse thoughe he thought nat to be bounde therby / for it is a good contracte / and he maye haue Quid pro quo / that is to saye / the prefermente of his doughter for his money But in those promyses made to an vniuersite or such other as thou hast remembred byfore / with such causes as thou hast shewed / that is to say / to the honoure of god / or to the encrease of lernynge / or suche other lyke / where the ê‘tie to whome the promyse was made is bounde to no newe charge by reason of the ê“myse made to hym but as he was bouÌ„de to byfore / there they thynke that no accion lyeth agaynst hiÌ„ though he perfourme nat his promyse / for it is no contracte / and so his owne conscience must be his iuge whether he intended to be bounde by his promyse or nat And if he intended it nat than he offended for his dissimulacion only / but if he intended to be bounde than if he perfourme it nat vntrouthe is in hym / and he proueth hym selfe to be a lyer whiche is ê“hibited as well by the lawe of god as by the lawe of reason / and ferthermore many of that be lerned in the lawe of Englande holde that a man is as moche bounden in conscience by a promyse made to a comon persone if he intended to be bounde by his ê“myse as he is iÌ„ the other cases that thou haste remembred of a promyse made to the churche / or to the clergie / or such other / for they say that as moche vntrouth is in the brekynge of the one as of the other / they say that the vntrouthe is more to be pondered than the persone to whome the promyses be made ¶ Doctoure But what holde they if the ê“myse be made for a thiÌ„g paste / as I promyse the .xl. pouÌ„de for that thou hast buylded me suche a house / lyethe an accion there ¶ StudeÌ„t They suppose nay / but he shal be bounde in conscience to perfourme it after his entente as is byfore sayd ¶ Doctour And if a man promyse to gyue a nother .xl. pounde in recompeÌ„ce for suche a trespas that he hathe done hym / lyeth an accion there ¶ Student I suppose nay / and the cause is for that suche ê“myse be no perfite contractes / for a contracte is properly where a man for his money shall haue by asseÌ„t of the other partye certayne goodes or some other profite at the tyme of the contracte or after / but if the thynge be ê“mysed for a cause that is past by way of a recompeÌ„ce theÌ„ it is rather an accorde then a contracte / but then the lawe is that vpon suche accorde the thynge that is ê“mysed in recompence muste be payde or delyuered in hande / for vpon an accorde there lyeth no accion ¶ Doct. But in the case of trespas whether holde they that he be bounde by his promise though he inteÌ„ded nat to be bounde thereby ¶ Student They thynke nay no more theÌ„ in the other cases that be put before ¶ Doct. In the other cases he was nat bounde to that he promysed but onely by his promyse / but iÌ„ this case of trespas he was bouÌ„de iÌ„ conscience before the promise to make recoÌ„pence for the trespas and therfore it semeth that he is bounde in conscience to kepe his promyse thoughe he inteÌ„ded nat to be bouÌ„den thereby ¶ Stu. Though he were bounde before the promyse to make recompeÌ„ce for his trespas yet he was nat bounden to no suÌ„me in certayne but by his promyse / and bycause that the suÌ„me may be to moche or to lytel and nat egal to the trespas / and that the party to whome the trespas was done natwithstaÌ„dyng the promyse is at lyberty to take his accioÌ„ of trespas if he will therfore they holde that he maye be his owne iuge in coÌ„science whether he inteÌ„dyd to be bounde by his promyse or nat as he may in other cases / but if it were of a dette / then they holde that he is bounden to performe his promyse in conscience ¶ Docctoure What if in the case of trespas he afferme his promyse with an othe ¶ Student Then they holde that he is bounde to performe it for sauinge of his outhe thoughe he intended nat to be bouÌ„den but if he inteÌ„ded to be bounde by his promise / then they say that an othe nedeth not but to enforce the ê“myse for they say he breketh the lawe of reasoÌ„ whiche is that we may do nothyng agaynste the trouthe / as well when he breketh his promyse that he thought in his owne herte to be bouÌ„de by as he dothe wheÌ„ he breketh his othe thoughe the offence be not so greate by reasoÌ„ of the periury more ouer to that thou sayste that vpon suche promyses as thou hast rehersyd before shal lye an accyoÌ„ after the lawe canon verylye as to that in this realme there caÌ„ no accioÌ„ lye theron in the spiritual courte if
one is this Two ioynttenauntes be of goodes the one of them by his laste wyl bequeteth all his parte to a strauÌ„ger and maketh the other ioynttenaunt his executor and dyeth / if he to whome the bequest is made sue the other iointtenaunt / vpon the legacie as executour c. vpoÌ„ this matter shewed / the iuges of the spirituall lawe are bounden / to iuge the wyll to be voyde / by cause it is voyde by the lawe of the realme wherby the iointtenaunt hath right to the hole goodes by the title of the suruiuour is iuged to haue the goodes as by the fyrst gyfte whiche is before the tytle of the wyl must therfore haue pÌ„ferremeÌ„t as the elder title if the iuges of the spiritual courte iuge other wyse they are bouÌ„de to restitucioÌ„ by lyke reason the executours of a man that is outlawed the tyme of his dethe may dyscharge them selfe in the spirituall courte of the perfourmyng of legacyes / bycause they be chargeable to the kynge and yet there is no suche lawe of outlagary in the spirituall lawe ¶ Doctoure By occasyon of that thou haste sayde before I wolde aske of the this question If a parson of a churche alyen a porcyon of dysmes accordyng as the spirituall lawe hathe ordeyned / is nat that alienacion sufficient thoughe it haue nat the solempnities of the temporall lawe ¶ Student I am in doute therin yf the porcion be vnder the fourth parte of the value of the churche but yf it be to the value of the .iiii. parte of the churche or aboue / it is not sufficient and therfore was the wrytte of ryght of dysmes ordeyned / if iÌ„ a wrytte of ryght of dysmes it be Iuged in the kynges court for the patrone of the successoure of hiÌ„ that alieneth bycause the alyenacyon was nat made accordynge to the comon lawe / than the Iuges of the spirituall lawe are bounden to gyue theyr iugement accordyng to the iugemeÌ„t gyueÌ„ in the kyngs court And in lyke wyse if a parson of a churche agre to take a pencyoÌ„ for the tythe of a mylle / yf the pencyoÌ„ be to the fourthe parte of the value of the churche or aboue / than it muste be alyened after the solempnytyes of the kynges lawes as landes tenementes muste / or elles the patrone of the successoure of hym that alyened maye brynge a wryt of ryght of dysmes recouer in the kynges courte / than the Iuges of the spirituall courte are bounden to gyue IugemeÌ„t in the spiritual courte accordyngly as is aforesayd ¶ Doccour I haue herde say that a wryt of ryghte of dysmes is gyueÌ„ by the statute of westmynster the seconde that speketh onely of dysmes and not of pencion ¶ Student where a parson of a churche is wrongfully deforcyd of his dysmes and is lette by an Indicauit to aske his dysmes in the spirituall court than his patroÌ„ may haue a wrytte of ryght of dysmâ— by the statute that thou spekest of / for there lay none at the comon lawe for the person had there good ryght thoughe he were let by the iÌ„dicauit to sue for his right But whan the persoÌ„ had no remedy at the spirituall lawe there a wrytte of ryght of dismes lay for the patroÌ„ by the comoÌ„ lawe as well of pencyons as of dysmes / some saye that in suche case it lay of lesse than of the fourthe parte by the comoÌ„ lawe but that I passe ouer And the reason why it lay at the comoÌ„ lawe if the dysme or pencyoÌ„s were aboue the fourth parte c. was this by the spirituall lawe the alienacyoÌ„ of the persoÌ„ with assent of the bisshope and of the chapitre shall barre the successour without assente of the patrone / and so the patrone might lese his patronage he nat assentinge therto for hys encuÌ„bent myght haue no remedy but iÌ„ the spirituall court and there he was barred wherfore the patrone iÌ„ that case shall haue his remedy by the comon lawe where the assent of the ordinarie and chapitre without the patrone shall nat serue as is sayd before But where the encumbent had good ryght by the spirituall lawe there lay no remedy for the patrone by the comoÌ„ lawe though the encumbeÌ„t were let by an indicauit / for that cause was the sayde statute made and it lyeth as wel by the equitie for offeringê and pensions as for dismes Than farther I wolde thynke that where the spirituall court may holde ple of a temporall thiÌ„ge that they must iuge after the temporall lawe / that ygnoraunce shall not excuse them in that case for by takynge of theyr office they haue bouÌ„de them selfe to haue knowlege of as moch as beloÌ„geth to ther offyce as al Iuges be spiritual teÌ„poral But if it were in argument in this case whether the eldest soÌ„ne myght be a preste by cause he is a bastarde iÌ„ the teÌ„poral lawe that shuld be iuged after the spiritual lawe for the matter is spiritual ¶ Doct. yet notwithstandynge all the reasons that thou haste made I caÌ„ not se howe the iuges of the spirituall lawe shall be compelled to take notice of the temporall lawe seynge that the most parte of it is in the frenche tonge for it were harde that euery spirituall iuge shulde be compelled to lerne that toÌ„ge But if the lawe of the realme were set iÌ„ suche order that they that iÌ„tende to studye the lawe canoÌ„ might first haue a syght of the lawe of the realme as they haue now of the lawe ciuil that some bokê treatises were made of cases of coÌ„scieÌ„ce coÌ„cernynge those two lawes as there be nowe coÌ„cernynge the lawe ciuil and the lawe canoÌ„ I wolde asseÌ„t that it were ryght expedyeÌ„t thaÌ„ reasoÌ„ myght serue the better that they shulde be compelled to take notyce of the lawe of the realme as they be nowe bounden in suche countreys as the lawe ciuill is vsed to take notyce of that lawe ¶ Student Me thynketh thyne oppinion is ryght good and reasonable but tyll suche an order be taken they are bouÌ„de as I suppose to enquere of theym that be lerned iÌ„ the comon lawe what the lawe is / and so to gyue theyr iugement accordyng / if they wyll kepe them selfe fro offence of coÌ„scyence / and for as moche as thou haste well satisfied my mynde in all these questions before I praye the nowe that I maye soÌ„what fele thy mynde in dyuers artycles that be wryten in dyuers bokes for the orderynge of coÌ„scyence vpon the lawe canon and ciuill / for me thynketh that there be dyuers conclusyoÌ„s put in dyuers bokes / as iÌ„ the suÌ„mes callyd Summa angelica / and Summa rosella / and dyuers other for the good order of coÌ„scieÌ„ce that be agaynst the lawe of this realme rather blynde conscience thaÌ„ to gyue any lyght vnto it ¶ Docto. I pray the shewe me some of those cases
¶ Student I wyll with good wyll ⧠Whether an abbot may with coÌ„scieÌ„ce present to an aduouson of a churche that beloÌ„geth to the house without assente of the couent The .xxvi. chapitre DOctour It appereth iÌ„ the chapitre Eanoscitur de hus que fiunt a prelates / the whiche chapitre is recited in the summe called Summa angelica in the title abbas the .xxvii. article that he maye nat without any costume or any speciall priuilege do helpe there iii. Student Trouthe it is that there is suche a decretale / but they that be lerned in the lawe of Englande holde that decretale byndeth not in thys realme / and thys is the cause why they do holde that oppynyon By the lawe of the realme the hole disposicion of the laÌ„des and goodes of the abbey is the abbot only for the tyme that he is abbot not in the couent / for they be but as deed persones iÌ„ the lawe therfore the abbot shall sue be sued onely without the coueÌ„t do homage fealtie atturne make leases preseÌ„t to aduousons onely in his owne name / they saye farther that this aucthoritie can not be taken fro hym but by the lawe of the realme / and so they say that the makers of that decretale excedyd theyr power wherfore they say it is not to be holden in conscience / no more than if a decre were made that a lease for terme of yeres or at wyll made by the abbot withoute the coueÌ„te shuld be immedyatly voyde / so they thynke that the abbot may iÌ„ thys case preseÌ„t iÌ„ his owne name without offeÌ„ce of coÌ„science by cause the sayd decretale holdeth nat iÌ„ this realme ¶ Doctoure But many be of oppynyoÌ„ that no man hath aucthorytye to present in ryght and conscience to any benefice with cure but the pope or he that hath his aucthorytye thereiÌ„ deriuied fro the Pope for they saye that for as moche as the Pope is the vycar general vnder god hath the charge of the soules of all people that be in the floke of Christes churche it is reasoÌ„ that syth he cannat ministre to all ne do that is necessarie to all the people for theyr soule helthe in his owne persoÌ„ that he shall assygne deputyes for his dyscharge iÌ„ that behalfe / bycause patrons clayme to present to churches in this realme by theyr owne ryght without tytle deriuied fro the Pope they saye that they vsurpe vpon the popes authoritie / therfore they conclude that thoughe the abbot haue title by the lawe of the realme to present iÌ„ this case iÌ„ his owne name that yet bycause that title is against the popes prerogatiue that that title ne yet the lawe of the realme that mayntenyth that tytle holdeth not iÌ„ coÌ„scyence And they say also that it belongeth to the lawe canon to determine the ryght of pÌ„sentmeÌ„t of benefices for it is a thynge spirituall and belongeth to the spirituall iurisdiccioÌ„ as the depryuacioÌ„ fro a benefice doth so they saye the sayd decretale biÌ„deth iÌ„ coÌ„scyeÌ„ce thoughe iÌ„ the lawe of the realme it binde nat ¶ StudeÌ„t As to thy fyrste coÌ„sideracion I wolde ryght well agre that if the patroÌ„s of churches in this realme claymed to put encumbentes in to suche churches as shulde fall voyde of theyr patronage without pÌ„seÌ„ting them to the bysshop or if they claymed that the bhysshop shold admit suche encumbent as they shulde present without any examinacion to be made of his abylite in that behalfe / that that clayme were agaiÌ„st reasoÌ„ and coÌ„scyeÌ„ce for the cause that thou hast rehercyd but for as moche as the patroÌ„s iÌ„ thê realme clayme no more but to pÌ„sent theyr encuÌ„bentes to the bisshop theÌ„ the bysshop to examin the abylitie of the encumbeÌ„t / if he fynde hym by the examinacyoÌ„ nat able to haue cure of soule / he theÌ„ to refuse hiÌ„ the patrone to preseÌ„t another that shal be able / if he be able thaÌ„ the bisshop to admit hiÌ„ iÌ„stitute hiÌ„ iÌ„ducte him I thiÌ„ke that this clayme theyr pÌ„sentemeÌ„tes therupon stande with good reason and coÌ„scyence / and as to the seconde consideracyoÌ„ it is holden in the lawes of the realme that the right of preseÌ„tement to a churche is a temporall enherytauÌ„ce shall desceÌ„de by course of enheritauÌ„ce fro heyre to heyre as laÌ„des tenementes shall shall be takeÌ„ as an asses as laÌ„des tenemeÌ„tes be for the tryall of the ryght of patronages be ordeyned iÌ„ the lawe diuers accyoÌ„s for theÌ„ that be wroÌ„ged in that behalfe as writtes of ryght of aduouson Assises of â—aren presentement Quare impedit diuers other / whiche alwaye withoute / time of mynde haue ben pledyd in the kynges courtes as thinges preteyning to his crowne roiall dygnytie / and therfore they saye that in this case his lawes ought to be obeyed in lawe and conscience ¶ Doctoure If it come in variaunce whether he that is so pÌ„sented be able or nat able be whome shall the abilitie be tried ¶ StudeÌ„t if the ordinarie be nat partie to the accyon it shall be tried be the ordinarie / and if he be partie it shall be tryed be the metropolitane ¶ Doctoure Than the lawe is more reasonable in that poynt than I thought it had ben but iÌ„ the other poynt I will take aduisement in it tyll a nother tyme / and I pray the shewe me thy mynde in thê poynt if an abbot name his couent with hym in his presentacyon doth that make the pÌ„sentacion voyde in the lawe or is the presentacyon good that nat withstaÌ„ding ¶ Student I thynke it is nat voyd therfore but the namyng of theym is voyde a thyng more thaÌ„ nedeth / for if the abbot be disturbed he muste brynge hys accion in hys owne name withoute the couente ¶ Doctoure Then I perceyue well that it is nat prohibit in the lawe of Englande but that the abbot may name the couent iÌ„ his presentacion with hym / and also take theyr assent whom he shall presenet if he wyll / and then I holde it the surest waye that he so do / for in so doynge he shall nat offeÌ„de nother in lawe nor coÌ„scieÌ„ce ¶ Student To take the asseÌ„t of the coueÌ„t whome he shall presente and to name them also in the presentacyon / knowynge that he may do otherwyse bothe iÌ„ lawe and conscience if he will / is no offeÌ„ce But if he take theyr assent or name them with hym in the presentacyon thinkynge that he is so bounde to do in lawe and conscyence / settyng a coÌ„science where none is / and regareth nat the lawe of the realme that wyll dyscharg his conscyence in this behalfe if he will so that he present an able man as he maye do without theyr assent / there is an erroure and offence of conscynce in the abbot And in lyke wise if the abbot preseÌ„t iÌ„ his owne name / and therfore the couent
/ but this must be alway excepte that if at the fyrste auoydaunce that shal be after the dethe of the comon auncestre the kynge haue the warde of the longest doughter / that thaÌ„ the kyng by his prerogatiue shall haue the presentement And at the nexte auoydauÌ„ce the eldest syster so by turne But it is to vnderstande that if after the dethe of the comon auÌ„cestre the churche voydeth the eldest syster presented togyder with another of the systers / the other systers euery one iÌ„ theyr owne name or togyder that in that case the ordinarie is nat bounden to receyue none of theyr clerkes but may suffre the churche to renne in to the lapas as it is sayd before for he shall nat be bounde to receyue the clerke of the eldest syster but where she presenteth in her owne name And in this case where the patrones varye in presentement the churche is nat properlye sayd letigiouse so that the ordinarie shuld be bouÌ„de at his perill to directe a writte to enquere de Iure patronatus for that writ lieth where two presente by seuerall titles / but these patroÌ„s present all in one title / therfore the ordinarie maye suffre it to passe if he wyll in to the laps / this maner of presentemeÌ„tes muste be obserued in this realme in lawe conscience ☞ Howe loÌ„ge tyme the patron shal haue to presente to a benefice The .xxxi. Chapitre DOctoure Thê questioÌ„ is asked iÌ„ SuÌ„ma aÌ„gelica iÌ„ the title Ius patronaâ—ê° the .xvi. article / there it is aÌ„swered that if the patron be a lay maÌ„ that he shall haue .iiii. monethes / if he be a clerke he shall haue .vi. monethes ¶ Student And by the comon lawe he shall haue .vi. monethes whether he be a lay man or a clerke / I se no reason why a clerke shulde haue more respite than a lay maÌ„ but rather the contrary ¶ Doctour Fro what tyme shal the .vi. monethes be accoÌ„pted ¶ StudeÌ„t That is in diuers maners after the maner of the voydance / for if the churche voyde by dethe / creacion / or cession the .vi. monethes shal be coÌ„pted fro the dethe of the encumbent / or fro the creacion / or cession / wherof the patron shal be coÌ„pelled to take notice at his peryll / if the voydance be by resignacion or depriuacion than the .vi. monethes shall begyn whan the patron hath knowlege gyuen hym by the bisshop of the resignacion or depriuacion ¶ Doctoure what if he haue knowlege of the resignacion or depriuacion nat by the bisshope but by some other / shall nat the syxe monethes begyn thaÌ„ fro the tyme of that knowlege ¶ Student I suppose that it shall nat begyn tyll he haue knowlege gyuen hym by the bisshope ¶ Doctoure An vnion is also a cause of voydaunce howe shall the .vi. monethes be rekened there ¶ StudeÌ„t There can no Vnion be made but the patrons muste haue knowlege / it muste be apoynted who shall present after that vnion / that is to saye / one of them or bothe / eyther ioiÌ„tly or by tunre one after another as the agrement is vpon the vnioÌ„ / sythe the patron is priuy to the auoidaÌ„ce is nat ignorante of it the .vi. monethes shal be accompted fro the agremente ¶ Doctour I se well by the reason that thou haste made in this chapitre that ignoraunce soÌ„tyme excuseth in the lawe of Englande / for in some of the sayde auoydaunces it shall excuse the patrones as it appereth by thy reasons aboue / in some it shal nat / wherefore I pray the shewe me somwhat where ignoraÌ„ce excuseth in the lawe of Englande where nat after thyne oppinion ¶ Student I wyll with good wil here after do as thou sayste if thou put me in remembrauÌ„ce thereof But I wolde yet moue the somwhat ferther in suche questions as I haue moued the before / concernyng the diuersities betwene the lawes of EnglaÌ„de other lawes / for there be many mo cases therof that as me semeth haue right greate nede for the good order of conscience of many persons to be reformed to be brought in to one oppinion bothe amonge spirituall teÌ„porall / as it is in the case where doctours holde opinion that the statutes of laymen that restrayne libertie to gyue landes to the churche shulde be voyde / they saye ferther that if it were prohibit by a statute that no gyfte shulde be made to foreyns / that yet a gifte made to the churche shulde be good / for they say that the inferiour may nat take away the aucthoritie of the superioure this sayeng is directly agaynst the statutes wherby it is prohibit that landes shulde nat be gyueÌ„ in to mortmayne / they say also that byquestes gyftes to the churche muste be determined after the lawe canon nat after the lawes statutes of lay meÌ„ / so they regarde moche to whome the gifte is made whether to the churche or to make causes / or to comoÌ„ persones / bere more fauoure in giftes to the churche than to other / the law of the realme beholdeth the thyng that is gyuen pretendeth that if the thynge that is gyuen be of landes or goodes that the determinacion therof of right beloÌ„geth in this realme to the kynges lawes whether it be to spirituall maÌ„ or teÌ„poral / to the churche or to other / so is greate diuisioÌ„ in thê behalfe whan one preferreth his opinioÌ„ another his / one this iurisdiccion / another that that as it is to fere more of singularitie thaÌ„ of charite wherfore it semeth that they that haue the greatest charge ouer the people / specially to the helthe of theyr soules / are moste bounde in conscience before other to loke to this matter to do that in them is in all charitie to haue it reformed / nat beholdynge the teÌ„porall iurisdiccion nor spirituall iurisdiccion but the comon welthe quietenes of the people / and that vndoutedly wolde shortlye folowe if this diuisioÌ„ were put away / whiche I suppose veryly wyll nat be but that all men within the realme bothe spirituall teÌ„porall be ordered ruled by one lawe as to teÌ„porall thynges nat wihstandynge for as moche as the purpose of this writtyng is nat to treate of this matter therfore I wil no ferther speke thereof at this tyme. ¶ Doctoure Than I praye the procede to another question as thou sayst thy mynde is to do ¶ Student I wyll with good wyll ☞ If a man be excoÌ„menged / whether he may in any case be assoyled without makynge satisfaccioÌ„ The .xxxii. Chapitre STudent In the summe called SuÌ„ma rosella in the title absolucio quarta the seconde article it is sayd that he that is excoÌ„municate for a wronge if he be able to make satisfaccion ought nat to be assoyled but he do satisfy / that they offende
onely maye disherite the house as by his cesser / or by leuieng of a crosse vpoÌ„ a house agaiÌ„st the statute therof made / in whiche case the house therby shall lese the laÌ„de / some say that by the comon lawe vpon his disclaymour in auourie a writ of righte of disclamour lieth / but if the gyfte be vpon condicion it standeth nether with law nor coÌ„scieÌ„ce that the Abbot shulde haue any more perfite or sure estate than was gyuen vnto hiÌ„ / therfore as the sayd estate was made to the house vpoÌ„ coÌ„dicioÌ„ so that estate may he auoyded for nat performyng of the coÌ„dicion / I thynke verily that this that I haue sayd is to beholdeÌ„ in this realme bothe in lawe conscience / that the decrees of the churche to the contrari bynde nat in thys case But if laÌ„des be gyuen to an Abbot to his coueÌ„t to the inteÌ„t to fynde a laÌ„pe / or to gyue certayne almes to poore meÌ„ / though the inteÌ„t be nat in those cases fulfilled / yet the feoffer nor hê heyres may nat reeÌ„tre for he reserued no reentre by expresse wordes / ne in the wordes whaÌ„ he sayth the entente to fynde a lampe or to gyue almes cÌ„ Is implyed no reentre / ne the feoffoure nor his heyres shall haue no remedye in suche cases / onelesse it be within the case of the statute of Westmynster the secoÌ„de that gyueth the Cessauâ—t de cantaria ☞ Whether a couenauÌ„t made vpoÌ„ a gyfte to the churche that it shall nat be aliened be good The .xxxv. Chapitre STudent In the sayde summe called Summa rosella in the sayde title alienacio / the .xiii. article is asked thê question / whether a couenaunt made vpon a gyft to the churche that it shall nat be aliened be good And the same question is moued agayne in the sayd summe called rosella / in the title condicio the fyrst article in Summa angelica / in the title Donatio prima / the .li. .lii. articles / the inteÌ„te of the question there is whether nat withstandynge that the condicion be good to some alienacions whether that yet it be good to restrayne alienacions for the redemption of them that be in captiuite vnder the infideles or for the greater aduauntage to the house / though the better opinioÌ„ be there that the condicion may nat be broken for redempcion of them that be in captiuite yet it is in maner a hole opinioÌ„ that it may be solde for the greater aduauntage to the house / for it is sayd there that it maye nat be taken but that the intente of the gyuer was so / therfore they calle the condicion that prohibiteth it to be solde condicio turpis that is to saye / a vyle condicion / wherfore they regarde it nat but verilie as I take it if a condicion may restrayne any maner of alienacion than it shall as well restrayne alienacions for the two causes before reherced as for any other causes / and thoughe me thynketh that that condicion is good after the lawes of the realme that vpon giftes to the church restrayneth alienacions yet I shal touche one reason that is made to the coÌ„trary / that is this There is a clere grounde in the lawe that if a feoffement be made to a comon person in fee vpon condicion that the feoffe shal nat alieÌ„ to no man that that condicion is voyde because it is contrary to the estate of a fee simple to bynde hym that hath that estate that he shulde nat aliene if he liste / some say that an Abbot that hath lande to hym to his successours hath as hygh as perfite a fee simple as hath a laye maÌ„ that hath lande to hym to his heyres / and therfore they say that it is as well agaynst the law of the realme to prohibit that the Abbot shall nat alien as it is to prohibit a lay maÌ„ therof / though it be therein true as they say as to the hyghnes of the estate yet me thynketh there is great diuersite betwene the cases concernyng theyr alienacioÌ„s / for whan landes be gyuen in fee simple to a comon person the inteÌ„t of the lawe is that the feoffe shall haue power to aliene / if he do aliene it is nat agaynst the inteÌ„t of the lawe ne yet agaynst the inteÌ„t of the feoffer / but whan landes be gyuen to an Abbot to his successours the intent of the lawe is also of the gyuer as it is to presume that it shulde remayne in the house for euer / therfore it is called mortmayne / that is to saye a ded haÌ„de as who saythe that it shall abyde there alway as a thynge ded to the house And therfore as I suppose the lawe will suffre that coÌ„dicioÌ„ to be good that is made to restrayne that suche mortmayne shulde nat be aliened that yet it may ê“hibit the same coÌ„dicion to be made vpon a feoffemeÌ„t made in fee simple to a maÌ„ to his heyres for that is the moste hyghe / the moste free the moste purest state that is in the law But the lawe suffreth suche a condicioÌ„ he made vpon a gyfte in tayse because the statute prohibiteth that no altenacion shulde be made therof And than as the law suffereth suche a condicion vpoÌ„ a gyfte in mort mayne / that is to saye / that it shall nat be aliened / to be good / than it iugeth the condicioÌ„ also accordyng to the wordes / that is to say / if the coÌ„dicion be generall that they shall aliene to no man as this case is that it shal be taken generaly accordynge to the wordes / it shall nat be takeÌ„ that the inteÌ„t of the gyuer was otherwyse thaÌ„ he expressed in his gift though percase if he were alyue hym selfe the questioÌ„ where asked hiÌ„ whether he wold be coÌ„teÌ„ted it shuld be alieued for the sayd two causes or nat / he wolde say ye / but whaÌ„ he is ded no maÌ„ hath authoritie to iÌ„terpretate his gyft otherwise thaÌ„ the law suffereth / ne otherwyse thaÌ„ the wordes of the gift be And if the coÌ„dicioÌ„ be special that is to say / that the laÌ„de shall nat be aliened to suche a maÌ„ or such a maÌ„ / thaÌ„ the coÌ„dicioÌ„ shal be takeÌ„ accordyng to the wordes / thaÌ„ they may be aliened as for that condicioÌ„ to any other but to them to whome it is expresselie prohibite that the lande shuld nat be aliened to And if the laÌ„des in that case be aliened to one that is nat excepte in the condicion / than he may aliene the lande to hym that is fyrste excepted withoute brekynge of the condicion / for condicions be taken straytely in the lawe without equitie And thus me thynketh that because the sayde condicion is generall restreyneth all alienacions / that it may nat be aliened nether by the lawe of the realme
ne yet by conscieÌ„ce / no more for the sayd two causes than it may for any other cause / this case muste of necessitie be iuged after the rules groundes of the law of the realme after no other lawe as me semeth ☞ If the patrone present nat within .vi. monethes who shall presente The .xxxvi. Chapitre STudent In the sayde summe called Summa rosella in the title Beneficio in principio it is asked / if the patrone present nat within .vi. monethes who shal present within what tyme the presentement muste be made And it is answered there that if the patroÌ„ present nat within vi monethes that the chapitre shall haue vi monethes to pÌ„sent / if the chapitre present nat within .vi. monethes that thaÌ„ the Bisshope shall haue other .vi. monethes And if he be necligent / than the Metropolitane shall haue other .vi. monethes / if he present nat than the presentement is deuolute to the Patriarke And if the metropolitane haue no superiour vnder the Pope / than the presentemeÌ„t is deuolute to the Pope And so as it is sayde there the archebisshope shall supplye the necligence of the Bisshope if he be nat exempte / if he be exempte the presentement immediatly shall fall fro the Bisshope to the Pope An as I suppose these diuersities holde nat in the lawes of the realme ¶ Doctour ThaÌ„ I pray the shewe me who shall present by the lawes of the realme if the patron do nat present within his .vi. monethes ¶ StudeÌ„t Than for defaute of the patrone the Bisshope shall present / oneles the kyng be patrone / if the Bisshop present nat withiÌ„ vi monethes / than the metropolitane shal present whether the Bisshope be exempte or nat And if the metropolitane presente nat within the tyme limitted by the lawe / than there be diuers oppinions who shall present / for some say that the Pope shall present / as it is sayd before / some say the kiÌ„ge shall present ¶ Doctoure what reasoÌ„ make they that say the kyng shulde present in that case ¶ StudeÌ„t This is theyr reason they saye that the kynge is patrone peramounte of all the benifices within the real me And they say further that the kynge his progenitours kiÌ„ges of EnglaÌ„de without tyme of mynde haue had authoritie to determine the right of patronages in this realme in theyr owne courtes / are bounden to se theyr subiectes haue right in that behalfe withiÌ„ the realme / that in that case fro hym lieth no appele And than they say that if the Pope in this case shulde present that than the kynge shulde nat onely lese his patronage peramounte / but also that he shulde nat somtyme be able to do right to his subiectes ¶ Doctoure In what case were that ¶ Student It is in this case / the lawe of the realme is / that if a benefice falle voyde / that the patrone shal present within .vi. monethes if he do nat that thaÌ„ the ordinarie shal ê‘sent but yet the law is ferther iÌ„ that case that if the patroÌ„ presente before the ordinari put in his clerke that thaÌ„ the patroÌ„ of right shal inioye his presentement / so it is / thoughe the tyme shulde fall after to the metropolitane or to the Pope / if the presentement shulde fall to the Pope / than thoughe the aduouson abode styll voyde / so that the patrone might of right present / yet the patrone shulde nat knowe to whome he shulde present / oneles he shuld go to the Pope / so he shuld fayle of right within the realme And if percase he wente to the Pope presented an able clerke vnto hym / yet his clerke were refused another put in at the collacioÌ„ of the Pope or at the presentement of a strauÌ„ger yet the patrone coulde haue no remedie for that wroÌ„ge within the realme / for the encumbente myghte abyde stille out of the realme And therfore the lawe wyll suffre no title in this case to fall to the Pope And they say that for alyke reasoÌ„ it is that the law of the realme will nat alowe an excoÌ„mengemeÌ„t that is certified in to the kynges court vnder the popes bulles For if the partie offered sufficieÌ„t ameÌ„des / yet coulde nat obteyne his letters of absolucion / the kynge shulde nat knowe to whome to writ for the letters of absolucioÌ„ / and so the partie coulde nat haue righte / that the lawe wyll in no wyse suffre ¶ Doctoure The patrone in that case may present to the ordinarie as longe as the churche is voyde / if the ordinarie accepte hym nat / the patrone may haue his remedie agaynst hym within the realme But if the Pope wyll put in an encumbeÌ„t before the patrone present / it is reason that he haue the prefermeÌ„te as me semeth before the kynge ¶ Student Whan the ordinarie hath surcessed his tyme he hath loste his power as to that presentement / specially if the collacion be deuolute to the pope And also whan the presentement is in the Metropolitane he shall put in the clerke hym selfe nat the ordinarie / so there is no defaute in the ordinarie though he present nat the clerke of the patrone if his tyme be past / so there lieth no remedie agaynst hym for the patrone ¶ Doctour Though the encumbeÌ„t abyde styll out of the realme yet maye a Quare impedit lye agaynste hym within the realme / if the encuÌ„bent make defaute vpon the distresse appere nat to shew his title than the patron shall haue a writt to the Bisshope accordyng to the statute / so he is nat without remedy ¶ StudeÌ„t But in this case he can nat be sommoned / attached / nor distrayned / within the realme ¶ Doctoure He maye be somoned by the churche as the tenaunt may in a writte of right of auouson ¶ Student There the auouson is in demaunde / here the presentement is onely in debate / so he can nat be somoned by the churche here no more than if it were in a writte of annuitie / and there the comon returne is quod clericus est beneficiatus non habens laicum feodum vbi potest summoniri And thoughe he might be somoned in the church / yet he might nether be attached nor distrayned there / so the patrone shulde be withoute remedie ¶ Doctoure And if he were with out remedie / he shulde yet be in as good case as he shulde be if the kyng shulde preseÌ„t / for if the title shulde be gyuen to the kynge the patrone had lost his presentement clerely for that tyme though the churche abyde styll voyd For I haue herde saye that in in suche presentementes no tyme after the lawe of the realme renneth vnto the kyng ¶ StudeÌ„t That is true / but there the presentement shulde be takeÌ„ fro hym by right by the lawe here it
the realme / all prouisours executours of the sayd collacioÌ„s prouisioÌ„s al theyr atturneys / notaries / mainteners shal be out of the proteccioÌ„ of the kyng / shall haue like punisshemeÌ„t as they shulde haue for executing of benefices voyding withiÌ„ the realme ¶ Doctor. But I caÌ„ nat se howe the sayd statute may staÌ„de with coÌ„scieÌ„ce that so farre restrayneth the Pope of his libertie / whiche as me semeth he ought iÌ„ this case right to haue ¶ StudeÌ„t Because as I suppose the patroÌ„s ought of right to haue theyr pÌ„sentemeÌ„tes vnder suche maner as they clayme theÌ„ in thê realme as I haue sayd before / as in the .xxvi chapi of this boke appereth more at large also for as moche as it apereth euideÌ„tly that greate inconuenient folowed vpoÌ„ the sayd prouisions / that the sayde estatute was made to auoyde the same / which syth that tyme hath ben suffred by the Pope hath ben alway vsed in this realme withoute resistaunce that the sayde estatute shulde therfore staÌ„de with good conscieÌ„ce ☞ If a house by chaunce falle vpon a horse that is borowed who shall bere the losse ⸫ The .xxxviii. Chapitre STudent In the sayde summe called Summa rosella / in the title casus for tuitus / iÌ„ the begiÌ„nyng is put this case if a man lende to another a horse whiche is called there deposituÌ„ a house by chauÌ„ce falleth vpoÌ„ the horse whether in that case he shal answere for the horse And it is answered there that if the house were lyke to falle that than it can nat be taken as a chaunce but as the defaut of hym that had the horse deliuered to hiÌ„ But if the house were stronge of likeliholde by comoÌ„ presumpcion in no dauÌ„ger of fallyng but that it fell by sodayne tempeste or suche other casueltie that than it shal be taken as a chaunce / he that had the kepynge of the horse shal be discharged / thoughe his diuersite agreeth with the lawes of the realme yet for the more playner declaracion therof and for other lyke cases chaunces that may happeÌ„ to goodes that a maÌ„ hath in his keping that be nat his owne I shal adde a littell more therto that shal be somwhat necessarie as me thynketh to the orderinge of conscieÌ„ce Fyrst a maÌ„ may haue of another by way of lone or borowynge / money / corne / wyne / suche other thinges where the same thynge can nat be deliuered if it be occupied but another thynge of lyke nature lyke value muste be redeliuered for it / suche thynges he that they be lâ—â—e to may by force of that lene vse as his owne And therfore if they perysshe it is at his ieoperdye this is mooste properly called a loone Also a maÌ„ may leÌ„de to another a horse / an oxe / a carte / or suche other thynges that maye be deliuered agayne / they by force of that leue may be vsed occupied reasonablie iÌ„ such maner as they were borowed for / or as it was agreed at the tyme of the loone that they shulde be occupied / if suche thynges be occupied / otherwyse thaÌ„ accordyng to the intente of the lone / in that occupacioÌ„ they perysshe in what wyse so euer they perysshe / so it be nat in defaute of the owner / he that borowed them shal be charged therwith in law conscience / if he that borowed them occupie them in suche maner as they were lent for / in that occupacion they perysshe in defaute of hym that they were lente to thaÌ„ he shall answere for them And if they perysshe nat through his defaute than he that oweth them shall bere the losse Also if a man haue goodes to kepe to a certayne day for a certayne recompence for the kepynge he shall stande charged or nat charged after as defaute or no defaute shal be in hym / as before appereth / so it is if he haue nothyng for the kepynge / but if he haue for the kepynge make promyse at the tyme of the deliuerye to redeliuer them saufe at his peryll than he shal be charged with all chaunces that may fall But if he make that promyse haue nothynge for kepyng I thynke he is bounde to no suche casuelties / but that be wilfull and his owne defaute / for that is a nude or a naked promyse wherupon as I suppose no accion lyeth Also if a man fynde goodes of another if they be after hurte or loste by wilfull necligence he shal be charged to the owner / but if they be lost by other casuelte as if they be layde in a house that by chaunce is burned / or if he deliuer theÌ„ to another to kepe that renueth away with theÌ„ I thynke he be discharged / these diuersites hold most comonly vpoÌ„ pledges / or where a maÌ„ hurith goodes of his neyghbour to a certayn day for certayne money / many other diuersities be in the law of the realme what shal be to the ieopardy of the one what of the other whiche I will nat speke of at thê tyme. And by this it may appere that as it is comonly holden in the lawes of EnglaÌ„de if a comon caryer go by by wayes that be daungerous for robbynge / or driue by nyghte or in other vnconueniente tyme and be robbed / or if he ouer charge a horse whereby he falleth into the water or otherwyse / so that the stuffe is hurte or empeyred / that he shall stande charged for his misdemeanoure / if he wolde percase refuse to carye it / onelesse promyse were made vnto hym that he shall nat be charged for no misdemeanour that shulde be in him that promise were voyde For it were agaynste reason and agaynst good maners and so it is in all other causes lyke And all these diuersities be grouÌ„ded by secondarie conclusions diriuied vpoÌ„ the law of reasoÌ„ without any estatute made iÌ„ that behalfe And peraduenture the lawes the conclusioÌ„s therin be the more playne the more opeÌ„ For if any statute were made theron I thynke verely mo doutes questioÌ„s wolde rise vpoÌ„ that statute thaÌ„ dothe now whaÌ„ they be onely argued and iuged after the comon lawe ☞ If a preste haue woÌ„ne moche by saieÌ„g of masse / whether he may gyue those goodes or make a wyll of them The .xxxix. Chapitre STudeÌ„t In the sayd summe called SuÌ„ma rosella in the title clericus quartê° the thyrde article / is asked this question if a preste hath woÌ„ne moche goodes by sayenge of masse whether he may gyue those goodes or make a wyll of theÌ„ / whereto it is answered there that he may giue them or make a wyll of theÌ„ specially whaÌ„ a man bequeteth money for to haue masses sayd for hym / that lyke law is of suche thynges as a clerke wynneth by the reason of an office For it
made in that case nat by the generall rules of the lawe / soÌ„tyme in diuers statutes penalles they that be ignoraunt be excused by the selfe statute as it is vpon the statute of Rycharde the .ii. the .xiii. yere / the secoÌ„de statute the last chapitre where it is enacted that if any persone take a benefice by prouision that he shal be banysshed the realme forfet all his goodes / that if he be in the realme he auoid within .vi. wekes after he hath accepted it that none shall receyue hiÌ„ that is so banysshed after the sayd .vi. wekes vpon lyke forfeture / if he haue knowlege / so he that hath no knowlege is excused by the expresse wordes of the statute And in lykewyse he that offendeth agaynste Magna carta is nat excoÌ„menged but he haue knowlege that it is prohibit that he dothe For they be onely excoÌ„menged by the senteÌ„ce called SeÌ„tentia lata suê‘ cartas that dothe it wilfully or that dothe it by ignorauÌ„ce / correcte nat the selfe within .xv. days after they haue warninge And somtyme the that be ignoraunte of a statute be excused fro the penaltie of statute bycause it shal be takeÌ„ that the inteÌ„te of the makers of the statute was that none shal be bounde but they that haue knowlege / but that any man shulde be discharged in the lawe by ignoraunce of the lawe onely for that he is ignorante I knowe fewe causes excepte it might be applied to infantes that be in theyr infancy within yeres of discrecion / for if ignorauÌ„ce of the lawe shulde excuse in the lawe many offenders wolde pretende ignoraunce ¶ Doctour Shall an infaunte that hath discrecion knoweth good fro euyll be punisshed by a penall statute that he is ignoraÌ„t in ¶ StudeÌ„t If the statute be that for the offence he shulde haue corporall payne I thynke he shal be excused haue no corporall payne / but I suppose that that is nat for the ignoraunce / for thoughe he knewe the statute wittigly offeÌ„ded / yet I thike he shall haue no corporall payne as where he pleeded I ointenauncie by dede that is fouÌ„de agaist hym / or if he piede a recorde iÌ„ assise fayleth of it at his day / but that is bycause the lawe presumeth that it was nat the intente of the makers of the statute that he shulde haue that punishement / but if he be of yeres of discrecion to knowe good fro euyll whether he shall than forfet the penaltie of a penall statute it is more doute / for it is comoÌ„ly holden that if an infauÌ„t had nat ben excepted in the statute of foriugemeÌ„t that the foriugemeÌ„t shulde haue bouÌ„de hiÌ„ / so shall his cesser hê leuieÌ„ge of a crosse agaiÌ„st the stat / or if he be a gardeiÌ„ of a prysone suffre a prysoner escape he shall pay the derte bycause the statutes be generall if he shulde by tho statutes be bouÌ„de within age lyke reason wyll that he may by a statute penall liese his goodes ¶ Doctour If an infaunt do a murder or a felonye at suche yeres as he hath discrecion to knowe the lawe / shall he nat haue the punisshement of the lawe as one of full age ¶ StudeÌ„t I thynke yes / but that is by an olde maxime of the lawe for eschewynge of murders felonyes / so it is of a trespas / but these cases renne nat vpon the grouÌ„de of ignoraunce / but with what acre infantes shal be punisshable or nat punisshable / for the tendernes of theyr age though they be nat ignoraunce ¶ Doctoure Be nat yet knyghtes noble men that are bounde moste properly to set theyr studye to actes of chyualrye for defeÌ„ce of the realme And husbande men that muste vse tyllage husbandry for the susteynaunce of the cominaltie / that maye nat by reason of theyr laboure put theÌ„ selfe to knowe the lawe discharged by ignorance of the lawe ¶ StudeÌ„t No verely / for sith all were makers of the statute the law presumeth that all haue knowlege of that that they make / as it is sayd before / as they be bouÌ„de at theyr peryll to take knowlege of the statute that they make so be all that come after theÌ„ And as for knyghtes other nobles of the realme me semeth that they shulde be bounde to take knowlege of the lawe as well as any other within the realme except them that gyue theÌ„ selfe to the study exercyse o the law except spirituall iuges that in many cases be bouÌ„de to take knowlege of the law of the realme as is sayd before in the .xxv. chapitre For though they be bouÌ„de to actes of chyualry for defeÌ„ce of the realme / yet they be bouÌ„den also to the actes of iustice / that as it semeth more thaÌ„ other be by reasoÌ„ of theyr great possessions auctoritie And for the well orderynge of they tenantes / seruaÌ„tes neyghbours that many tymes haue nede of theyr helpe / also bycause they be ofte called to be of kynges couÌ„sayle to the generall counsayles of the realme / where theyr couÌ„sayle is right expedieÌ„t neccessarie for the comon welthe / therfore if the noble men of this realme wolde se theyr chyldren brought vp in suche maner that they shulde haue lerniÌ„ge knowlege more than they haue comonly vsed to haue in tyme past / specially of the groundes principles of the lawe of the realme wherin they be enheryte / though they had nat the hygh coÌ„nynge of the hole body of the lawe / but after suche maner as mayster Fortescue iÌ„ in his boke that he intitelleth the boke de laudibus legum Anglie auertisith the priÌ„ce to haue knowelege of the lawes of hys realme / I suppose it wolde be a great helpe hereafter to the ministracion of Iustice in this relame A greate surely for theÌ„ selfe a righte greate gladnes to all the people for certayn it is the more parte of the people wolde more gladly here that theyr rulers gouernours entended to order them with wisdome Iustice than with power greate retynues But ignoraunce of the dede many tymes excuseth in the lawes of Englande And I shall shortely touche some cases thereof to shewe where it shall excuse and wbere it shall nat excuse / thaÌ„ the reder maye adde to it after his pleasure and as he shall thynke to be conueniente ☞ Certayne cases groundes where ignoraunce of the dede excuseth in the lawes of Englande where nat The .xlvii. Chapitre STudent If a man bye a horse in open market of hym that in righte hath no propertye in hym nat knowynge but that he hath righte / he hath good title and righte to the horse / and that ignoraunce shall excuse hym But if he had bought hym oute of open market / or if he had knowen that the seller had no righte / the byeng in opeÌ„
market had nat excused hym Also if a man reteyne a nother mannes seruaunt nat knowynge that he is reteyned with hym / that ignoraunce excuseth hym bothe for the offence that was at the comoÌ„ lawe agaynst the maxime that prohibited suche reteynynge of a nother mannes seruauÌ„t And also agaynst the statute of .xxiii. of Edwarde the .iii. whereby it is ê“hibite vpon payne of inprysonemente that none shall reteyne no seruaunte that departeth within his terme without licence or reasonable cause / for it hath ben alwaye taken that the intente of the makers of the sayde statute was that they that were ignorauÌ„t of the fyrste reteynoure shulde nat renne in any penaltye of the statute And the same lawe is of hym that reteyneth one that is warde to another / nat knowynge that he is his warde And if homage be due the tenaunt after that the homage is due maketh a feoffement / after the lorde nat knowynge of the feoffement distreyneth for the homage in that case that ignoraunce shall excuse hym of dammages in a Repleuin / thoughe he can nat auowe for the homage but if he had knowen of the feoffemente he shulde haue yelded damages for the wroÌ„gfull takynge Also if a man be bouÌ„de in an obligacioÌ„ that he shall repayre the houses of hym that he is bounde to by suche a certayne tyme as ofre as nede shall require / after the houses haue nede to be repayred but he that is bounde knoweth it nat / that ignorauÌ„ce shall nat excuse him for he hath bounde hym selfe to it / so he muste take knowlege at his peryll / but if the condicioÌ„ had ben that shulde repayre suche houses as he to whome he was bounde shulde assigne / after he assigneth certayne houses to be repayred / but he that is bounde hath no knowlege of that assignement / that ignoraunce shall excuse hym in the lawe / for he hath nat bounde hym selfe to no reparacioÌ„s in certayne / but to suche as the party will assigne / and if he none assigne he is bouÌ„de to none / therfore syth he that shuld make the assignement is priuye to the dede he is bounde to gyue notice of his owne assignement / but if the assignement had ben appoynted to a strauÌ„ger thaÌ„ the oblegour muste haue taken knowlege of the assignement at his peryll Also if a man bye laÌ„des whereunto a nother hath title whiche the byer knoweth nat / that ignoraunce excuseth hym nat in the lawe no more than it dothe of goodes Also if a seruaÌ„t come with his maysters horse to a towne that by custome may attache goodes for det / vpon a playnte agaynst the seruauÌ„te an officer of the towne by informacion of the party attacheth the maysters horse thynkynge that it were the seruantes horse / that ignoraunce excuseth hym nat / for whan a man wyll do an acte as to entre in to lande / sea se goodes / take a distresse or suche other / he muste by the law at his peryll se that that he doth be lawfully done as in the case before reherced And in lykewyse if a shyryfe by a repleuyn deliuer other beastes than were distreyned / thoughe the partye that distreyned shewed hym they were the same beastes / yet an accion of trespas lyeth agaynst hym / ignoraunce shall nat excuse hym for he shal be compelled by the law as all officers comonly be to execute the kynges writte at his peryll accordynge to the tenour of it to se that the acte that he dothe be lawfully done But otherwyse it is after some men if vpon a somons in a Precipe quod reddat the shyryfe by informacion of the demaundaunt somoneth the tenauÌ„t in a nother maÌ„nes lande thynkynge it for the tenauntes lande there they say he shal be excused / for in that case he dothe nat sea se the lande ne take possession in the lande / but onely dothe somon the tenaunt vpoÌ„ the lande / the writte coÌ„maundeth hym nat that he shall somon the tenaunt vpon hys owne lande but generally that he shall somon hym nameth nat in what lande than by an olde maxime in the lawe it is taken that he shall somon hym vpon the laÌ„de in demaunde / therfore though he mistake the lande ignoraunt of it / yet if the demaundaunt enforme hym that that is the lande that he demaundeth that suffyseth to the shyryfe as to his entre for the so monynge as they saye though it be nat the tenauÌ„tes lande And here I make an ende of these questions for this tyme. ¶ Doctour I praye the yet or we departe take a litell more payne at my desire ¶ StudeÌ„t what is that ¶ Doctour That thou woldest shewe me thy mynde in diuers cases of the law of the realme / whiche as me semeth stande nat so clerely with conscience as they shulde do And therfore I wolde gladly here thy conceyte therein how they may stande with conscience ¶ Student Put the cases I shall with good will say as I thynke to them ¶ Addition ☞ The fyrste question of the Doctour Howe the lawe of Englande maye be sayd reasonable that prohibiteth them that be arreyned vpon an Inditemente of felony or murdre to haue couÌ„cell The .xlviii. Chapitre STudent Me thynketh that the lawe in that poynte is very good indifferent takynge the lawe therein as it is ¶ Doctoure why what is the lawe in this poynt ¶ Student The lawe is as thou sayst that he shall haue no couÌ„cell / but thaÌ„ the law is ferther / that in all thynges that perteyne to the ordre of pledynge the Iuges shall so instructe hym so ordre hym that he shall renne into mo ieopardye by his mispleadyng / as if he wyll pleade that he neuer knewe the man that was slayne / or that he neuer had a peny worthe of the goodes / that is supposed that he shulde steele in these cases the Iuges are bouÌ„de in conscience to enforme hym that he muste take the general yssue plede that he is nat gyltye / for thouh they be set to be 〈◊〉 bytwene the kynge the partye as to the partye as to the principall matter as they be in all other matters yet they be 〈◊〉 this case to se that the partye haue no hurt in fourme of pleadynge in suche induces as he shall shewe to be the truthe of the matter / that is a greate fauoure of the lawe / for iÌ„ appell though the Iustices of fauour wyll moste comonly helpe fourth the partye soÌ„tyme his counsell also in the forme of pleadynge as they do also many tymes in common plees / yet they might in tho cases if they wolde byd the party his counsayle plede at theyr peryll But they maye nat do so with conscience vpon enoâ—â—ementes as me semeth / for it were a greate vnreasonablenes in the lawe if it shulde prohibit hym that standeth in ieopardy of his lyfe that he shulde
sāde that the owner if he proue the goodes within a yere a daye to be his shall haue thē whereby the sayde lawe of wreckes of the see is made more sufferable thā it was before / some thynketh in this case that this warrantie is no barre in cōscience though it be a barre in the law ¶ Studēt I pray the kepe that case of wrecke of the see ī thy remembraunce put it hereafter as one of thy questions thereupon shewe me thy ferther mynde therein / I shall with good wyll shewe the mynde / and as to this case that we be in nowe me thynketh the maxime wherby the warrātye shal be a barre is good resonable / for it semeth nat agaīst reason that a man shal be bounde as to tēporall thynges by the acte of his aūcestre to whome he is heyre / for lyke as by the lawe it is ordeyned that he shall haue aduauntage by the same auncestre haue al his landes by dissent if he haue any righte so it semeth that it is nat vnreasonable though the lawe for the priuity of blode that is bytwene them suffre hym to haue a disaduauntage by the same auncestre / but if the maxime were that if any of his auncestres though he were nat heyre to hī made suche a warrantye that it shulde be a barre I thynke that maxime were agaynst conscience / for in that case there were no groūde nor cōsideraciō to proue howe the sayd maxime shulde haue a lawfull begynnyng wherefore it were to be taken as a maxim agaynst the lawe of reason / but me thynketh it is otherwyse ī this case for the reason that I haue made before ¶ Doctour If the father bynde hym his heyres to the paymente of a dette dye / in that case the sone shall nat be bounde to pay the det oneles he haue asses by discent fro his father And so I wolde agree that if this mā had asses by discent fro the aūcestre that made the warranty that he shulde haue be barred / but elles me thynketh it shulde stande hardly with conscience that it shulde be a barre ¶ Student In that case of the obligaciō the law is as thou sayst / the cause is for that the maxime of the law in that case is none other but that he shal be charged if he haue asses by discente / but if the maxyme had ben generall that the heyre shulde be bounden in that case without any asses / or if it were ordeyned by statute that it shulde be so / I thynke that bothe the maxime the statute shulde well stande with consciēce And lyke law is where a mā is vouched as heyre / he may entre as he that hath nothynge by discent / but where he claymeth the lande in his owne right there the warrantie of his auncestre shal be a barre to hī though he haue no assesse fro the same aūcestre / though it be sayd in Ezechiel the .xviii. chapitre That the sone shal nat bere the wyckednes of the father / that is vnderstande spiritually But as to tēporall goodes the opinion of doctours is / that the sone somtyme maye bere the offence of his father ¶ Doctour Nowe that I haue herde thy mynde in this case I wyll take aduisement therein tyll a better leasure And wil nowe procede to another question ¶ Studēt I praye the do as thou sayste I shall with good wyll make answere thereto as well as I can ☞ The thyrde question of the Doctoure if a man procure a collaterall warrātye to extincte a right that he knoweth a nother man hath to lāde / whether it be a barre in conscience as it is ī the lawe or nat ⸫ The .l. Chapitre DOctoure A man is disseased of certayne lāde the disseasoure selleth the lāde c̄ the aliene knowynge of the disseason optayneth a release with a warātye of an auncrestre colaterall to the disseasie that knoweth also the right of the disseasye The auncestre colaterall dyeth after whose deth the warrātye discendeth vpon the disseasye / whether maye the aliene in that case holde the lande in conscience as he may by the lawe ¶ Studēt Syth the warantye is discended vpon hym wherby he is barred in the lawe / me thynketh that he shall also be barred in conscience / and that this case is lyke to the case in the next chapitre before / wherein I haue sayd that as me thynketh it is a barre in conscience ¶ Doctour Though it might be takē for a barre in conscience in that case / yet me thynketh in this case it can nat / for in that case the longer brother entred as heyr knowynge none other but that he was heyre of right / after whan he solde the lāde the byer knewe nat but that he that solde it had good right to sell it / so he was ignoraunt of the title of the eldest brother and that ignoraunce came by the defaut absence of hym selfe that was the elder brother But in this case as well the byer as he that made the colaterall warrātie knew the righte of the disseasye dyd that they coulde to extincte that right / so they dyd as they wolde nat shulde haue be done to them / so it semeth that he that hath the lāde may nat with cōsciēce kepe it ¶ Student Though it be as thou sayste that all they offended in opteynyng of the sayd colaterall warrantie / yet suche offence is nat to be cōsidered in the lawe but it be in very speciall cases / for if suche alegiaūce shulde be accepted in the law / relesses other writtinges shuld be of smal effecte / vpō euery light surmise all writtinges might come ī triall whether they were made with cōsciēce or nat Therfore to auoyde that incōueniēce the law will driue the partye to āswere onely whether it be his dede or nat / nat whether the dede were made with consciēce or agaynst conscience / though the partye may be at a mischyefe thereby / yet the lawe wyll rather suffre that mischiefe thā the sayd inconuenience And lyke law is if a woman couert for drede of her husbande by cōpulcion of hym leuye a fyne / yet the woman after her husbādes dethe shall nat be admitted to shewe that matter in auoydynge of the fyne for the incōueniēce that might folowe therupon And after the opinion of many men there is no remedye in these cases in the chauncery for they saye that were the comon lawe in cases concernyng enheritaunce putteth the party fro any auerment for eschewynge of an inconuenience that might folowe of it amonge the people / that if the same inconuenience shulde folowe in the chauncery if the same matter might be pleaded there that no sub pena shulde lye in suche cases / so it is in the cases before reherced For as moch vexacion / delay / costes / expences
shal be alowed for his reasonable expences in that behalfe as he shal be of goodes fouÌ„de / but he shall haue no property in theÌ„ no more thaÌ„ in goodes fouÌ„d And I wolde agre that if a maÌ„ prescribe that if he fynde any goodes withiÌ„ his maner that he shulde haue theÌ„ as his owne that that prescripcion were voyd / for there is no coÌ„sideracioÌ„ how that pÌ„scriptioÌ„ might haue a lawfull beginninge / but in this case me thiÌ„keth there is ¶ Doctor. what is that ¶ StudeÌ„t It is this The kyng by the olde custome of the realme as lord of the narow see is bouÌ„de as it is sayd to scour the see of pyrates petyt robbers of the see And so it is redde of the noble kyng saiÌ„t Edgare that he wolde twise in the yere scour the see of suche pyrattes / but I mean nat therby that the kiÌ„g is bouÌ„d to coÌ„duct his marchaÌ„tes vpoÌ„ the see agaiÌ„st al outward enemies but that he is bouÌ„d onely to put away such pyratê petite robers And bycause that can nat be done without greate charge it is nat vnreasonable if he haue suche goodes as be wrecked vpoÌ„ the see towarde that charge ¶ Doctour Vpon that reason I wyll take a respite tyll a nother tyme. ☞ The .v. question of the Doctoure whether it stande with conscience to prohibit a Iury of meate drinke tyll they be agreed The .lii. Chapitre DOctour If one of the .xii. men of an enquest know the very trouth of his owne knowlege instructeth his felowes thereof they wyll in no wyse giue credence to hym / and thereupon bycause meate and drynke is prohibit them he is dryuen to that poynte that eyther he must assente to them and gyue the verdyte agaynst his owne knowlege agaynste his owne conscience / or dye for lacke of meat / howe may that law than staÌ„de with conscieÌ„ce that will dryue an innoceÌ„t to that extremitie to be eyther forsworn or to be famisshed dye for lacke of meat ¶ StudeÌ„t I take nat the law of the realm to be that iury after they be sworne may nat eate nor driÌ„ke tyll they be agreed of the verdicte but trouth it is there is a maxime an olde custome in the lawe that they shall nat ease nor drynke after they be sworne tyll they haue gyuen theyr verdit without the assente â—â—tece of the iustice / that is ordeyned by the lawe for the eschewynge of diuers inconuenieÌ„ces that might folow thervpoÌ„ / that specially if they shulde eate or driÌ„ke at the costes of the partyes / therfore if they do the coÌ„trarye it may be sayde in areste of the iugement / but with the assente of the Iustices they may bothe ere driÌ„ke as it any of the Iurours fall sycke before they be agreed of theyr verdit to sore that he may nat comon of the verdit / thaÌ„ by the assent of the Iustices he may haue meate drynke also suche other thynges as be necessary for hym / and his felowes also at theyr owne costes or at the indifferent costes of the partyes if they so agre by the assent of the iustices may bothe eate driÌ„ke therfore if the case happeÌ„ that thou now spekest of that the Iuri can in no wyse agree in theyr verdit / that appereth to the Iustices by examinacioÌ„ the Iustices may in that case suffre them haue bothe meate drynke for a tyme to se wheter they wyll agre / if they wil in no wyse agre I thiÌ„ke that than Iustices may set suche order in the matter as shall seme to them by theyr discrecion to stande with reason conscience by awardynge of a newe enqueste by settinge sines vpon theÌ„ that they shal finde in defaute or otherwise as they shall thiÌ„ke best by theyr discrecion lyke as they maye do if one of the Iury dye before verdit or if any other lyke casualties fall in that behalfe But what the iustices ought to do in this case that thou haste put by theyr discrecioÌ„ I wyll nat tret of at this tyme. ☞ The .vi. question of the Doctour whether the colours that be gyueÌ„ at the comon lawe in assises / accions of trespas / diuers other accions stande with conscience bycause they be moste comonly feyned be nat trew The .liii. Chapitre DOctour I pray the let me here thy mynde to what intente suche colors be gyuen / syth they be comonly vntrue how they may stande mith conscience ¶ StudeÌ„t The cause why suche colours be gyuen is this / there is a maxime and a grounde in the lawe of Englande that if the defendant or tenant in any accioÌ„ plede a plee that amouÌ„teth to the generall issue that he shal be compelled to take the generall issue / if he will nat / he shal be condeÌ„pned for lacke of answere / the generall issue in assise is / that he that is named the disseasoure hath done no wronge nor no disseason And in a writte of entre in the nature of assise the general issue is that he disseased hym nat / in an accioÌ„ of trespas that he is nat gyltye so euery accioÌ„ hath his generall issue assigned by the lawe / the tenaunt muste of necessitie eyther take that generall issue / or plede some plee in abatement of the writt / to the iurisdiccioÌ„ / to the persone or elles some barre or some matter by way of conclusion And therfore if Iohan at style infeffe Henry herte of laÌ„de a straunger bryngeth an assise agaiÌ„st the sayd Henry herte for that lande whose title he knoweth nat In thê case if he shuld be coÌ„pelled to plede to the poynt of the assise / that is to say / that he hath done no wroÌ„ge ne no disseason the matter shulde be put in the mouthes of .xii. laye men whiche be nat lerned in the lawe / therefore better it is that the law be so ordered that it be put in the determinacion of the iuges than of lay men And if the sayd Henry hert in the case before reherced wolde plede in barre of the assise that Iohan at style was seased infessed hym / byforce whereof he entred asked iugement if that assise shulde lye agaynste hym that ple were nat good for it amouÌ„teth but to the general issue therefore he shal be compelled to take the generall issue or els the assise shal be awarded agaynst hiÌ„ for lacke of answere And therefore to the intente the matter may be shewed pleded before the iuges rather than before Iury / the tenantes vse to gyue the pleyntyfe a coloure / that is to say a colour of accion wherby it shall appere that it were hurtfull to the tenant to put that matter that he pleadeth to the iugemeÌ„t of .xii. meÌ„ / the moost eomon coloure that is vsed in suche case is this / whan he hath pleded that suche a maÌ„
spirituall ministracion to the people / hath ben grounded in diuers maners Fyrste before the lawe written a certayne porcion sufficient for the spirituall ministers was due to them by the lawe of nature / whiche after them that be lerned in the lawe of the realme is called the lawe of reason / that porcion is due by all lawes in the lawe written the Iewes were bounde to gyue the .x. parte to theyr prestes as well by the sayde auowe of Iacob as by the lawe of god in the olde testamente called the Iudicials And in the newe law the payenge of the tenth parte is by a lawe that is made by the churche And the reason wherfore the teÌ„the parte was ordeyned by the churche to be payde for the tythe was this There is no cause why the people of the new lawe ought to paye lesse to the ministers of the newe lawe / than the people of the olde testament gaue to the ministers of the olde testamente / For the people of the newe lawe be bounde to greater thynges / than the people of the olde law were as it appereth Mathe .v. where it is sayde / but your good workes habouÌ„de aboue the workes of the scribes the pharisees / ye maye nat entre in to the kyngdome of heuen And the sacrifice of the olde law was nat so honourable as the sacrifice of the new law is / for the sacrifice of the olde lawe was onely the figure / the sacrifice of the new lawe is the thynge that is figured / that was the shadowe / this is the trouth And therfore the churche vpon that reasonable coÌ„sideracion ordeyned that the .x. parte shuld be payde for the sustenaunce of the ministers in the newe lawe as it was for the sustenaunce of the ministers in the olde law / so that lawe with a cause may be encreased or minisshed to more porcion or to lesse as shal be necessary for them ¶ Doctoure It appereth Genesis .xiiii. that Abraham gaue to Melchisedech dismes that is taken to be the .x. parte that was longe before the lawe writteÌ„ / therfore it is to suppose that he dyd that by the lawe of god ¶ Student It appereth nat by any scripture that he dyde that by the commaundement of god / ne by any reuelacioÌ„ And therfore it is rather to suppose that he dyd parte of duyte parte of his owne fre wyl / for in that he gaue the dismes / as a resonable porcioÌ„ for the sustenauÌ„ce of Melchisedech his ministers / he dyd it by commaundemeÌ„t of the lawe of reason as before appereth / but that gaue the .x. parte that was of his free wyll / bycause he thought it sufficient resonable but if he had thoughte the .xii. parte or the .xiii. parte had suffised might haue gyuen it that with good conscience And so I suppose that in the newe law the gyuinge of the .x. parte is by a law of the churche nat by the law of god / oneles it be taken that the lawe of the church is the lawe of god / as it is somtyme taken to be / but nat appropriatly nor immediatli for that is takeÌ„ appropriatly to be the law of god / that is conteyned in scripture that is to say in the olde testameÌ„t or in the new ¶ Doctour It is somwhat daungerous to saye that tythes be grounded onely vpoÌ„ the lawe of the churche / for some men as it is sayd say that maÌ„nes law byndeth nat iÌ„ conscience / so they might happen to take a boldnes therby to denye theyr tythes ¶ StudeÌ„t I truste there be none of that opinion / if there be it is greate â—ytye And neuertheles they may be coÌ„pelled in that case by the law of the churche to pay their tythes as well as they shuld be if payenge of tythes were grounded meerely vpoÌ„ the lawe of god ¶ Doctour I thynke well it be as thou sayste therfore I holde me coÌ„tended therin But I praye the shewe me thy mynde in this question / if a hole countrey prescribe to pay no tythes for corne or hey nor suche other / whether thou thynke that that prescripcion is good ¶ StudeÌ„t That question dependeth moche vpon that that is sayde before / for if payenge of the .x. parte be by the lawe of reason or by the lawe of god / than the prescripcion is voyde but if it be by the lawe of man / than it is a good prescripcion so that the ministers haue a syfficient porcion beside ¶ Doctoure IohaÌ„ gerson whiche was a doctour of diuinite in a treatice that he named regule morales sayth that dismes be payd to prestes by the lawe of god ¶ StudeÌ„t The wordes that he speketh there of that matter be these Solutio decimarum sacerdotibê° est de iure diuino quarenê° I de sustenteÌ„tur sed quotaÌ„ haÌ„c vel illaÌ„ assignare aut iÌ„ alios redditus coÌ„mutare positiui iurê existit That is thus moche to say / the payeÌ„ge of dismes to prestes is of the lawe of god / that they maye thereby be susteyned / but to assigne thê porcioÌ„ or that / or to chauÌ„ge it to other rentes / that is by the lawe positiue / if it shulde be taken that by that worde decimarum whiche in englysshe is called dysmes or tythes / that he ment the tent parte that that .x. parte shulde be payde for tythe by the lawe of god / than is the senteÌ„ce that foloweth after agaynst that sayenge / for as it appereth aboue the text sayth afterwarde thus / but to assigne this porcion or that or to / chaunge it in to other rentes belongeth to the lawe positiue / that is to the law of man / if the .x. parte were assigned by god / than may nat a lesse parte be assigned by the lawe of man for that shuld be contrary to the lawe of god / so it shuld be voyde And me thynketh that it is nat likely that so famous a clerke wolde speke any sentence contrary to the law of god or contrary to that he had spoken before / to proue that he mente nat by that terme decime that dismes shulde alway be takeÌ„ for the tenth parte / yet appereth in the .iiii. parte of his workes in the .xxxii. title litte ray / where he sayth thus NoÌ„ vocatur porcio curatis debita propterea decime eo qd semper sit decima pars immo est interduÌ„ vicesima aut tricesima That is to say the porcion due to curates / is nat therfore called dismes for that it is alway the .x. parte for somtyme it is the .xx. or the .xxx. parte / so it appareth that by this worde decimarum he mente in the texte before reherced a certayne porcion and nat precisely the .x. parte / that that porcion shulde be payde to prestes by the lawe of god to susteyne them with / takynge as
neuerthiles bycause it hath ben suffered to the coÌ„trary that in many places tithe hath ben payd therof I passe it ouer but where tithe hath nat be payd of wood vnder .xx. yere I thinke none ought to be payd at this day in law nor conscience but admitte it that the sayd constitucioÌ„ taketh effecte for paymeÌ„t of tithe wood vnder .xx. yere as of a predial tithe / yet I can nat se how the tithe therof shuld be payde by the possessoure of the wode if he sell theÌ„ but that it shuld be payd rather by hym that hath the trees / for the constitucion is that the tythe shal be payde as a reall or a predial tithe / that is the .x. parte of the same trees as it is of corne / if a man bye corne vpon the grouÌ„de the byer shall pay the tythe nat the seller so it shulde seme to be here what the constitucion mente to decree the contrari in tythe wode I can nat tell oneles the meanyng were to enduce the owners to pay tyths of great trees whan they fell theÌ„ to theyr owne vse whiche me thynketh shulde be very harde to proue to stande with reason though the sayd statute had neuer be made as I haue sayd before And ferthermore I wolde here vnder correccion moue one thynge that is this that as it semeth they that were at the makynge of the sayde constitucion that knewe the sayd prescripcion dyd nat folow the directe order of charite therin so perfitely as they might haue done / for whan they made the sayd constitucion prouinciall directely agaiÌ„st the said pÌ„scripcioÌ„ / they set law agaiÌ„st custome / power agaiÌ„st power in maner the spiritualtie agaiÌ„st the teÌ„poraltie / whereby they might well knowe that greate variauÌ„ce sute shuld folowe / therfore if they had clerely sene that the sayde prescripcion had ben agaynste conscience they shulde fyrste haue moued the kynge his counsayle the nobles of the realme to haue assented to the reformacion of that pÌ„scripcion nat to make a lawe as it were by authorite power agaynst the prescripcion than to threte the people make theÌ„ byleue that they all were accursed that kept the sayd prescripcioÌ„ or that mayntayne it / it semeth to stande hardely with conscieÌ„ce to reporte so many to staÌ„de accursed for folowinge of the sayd statute of the sayd pÌ„scripcion as there do yet to do no more than hath be done to bringe them out of it ¶ Doctour Me thinketh that it is nat coÌ„uenieÌ„t that lay meÌ„ shuld argue the lawes the decrees or constitucioÌ„s of the church therfore it were better for them to gyue credence to spirituall rulers that haue cure of theyr soules than to truste to theyr owne opinions / if they wolde do so than suche matters wolde moche the more rather cesse than they will do by suche reasoningê ¶ StudeÌ„t In that that beloÌ„geth to the articles of the faythe I thynke the people be bounde to byleue the church / for the churche gadered to gyder in the holy ghoste can nat erre in suche thynges as belonge to the catholike fayth but where the churche maketh any lawes wherby the goodes or possessions of the people maye be bounde / or by this occasion or that may be taken fro them there the people may lawfully reason whether the lawes bideth theÌ„ or nat for in suche lawes the churche may erre be deceyued deceyue other eyther for singularite or for couetyce for some other cause / for that consideracion it perteyneth moste to theÌ„ that be lerned in the lawe of the realme to knowe suche lawes of the churche as trete of the orderynge of landes or goodes to se whether they may stande with the lawes of the realme or nat therfore it is necessarie for them to know the lawes of the churche that treate of dismes of executours of testamentes of legacies bastardye matrimonie diuers other wherin they be bounde to knowe whaÌ„ the lawe of the church must be folowed whaÌ„ the law of the realme / wherof bycause it is nat our purpose to treate I leue to speke any more at this tyme / and wyll resorte agayne to speke of tythes / wherin some meÌ„ say that of tynne / cole / leade no tythe shulde be payde whan they be solde by the owne of the grounde bycause it is parte of the enheritaunce it is more rather a distruccion of the enheritaunce than an encreace / therfore they say that if a maÌ„ take a tyn werke gyue the lorde the tenthe dysshe accordynge to the custome that the lord shall pay no tythe of that tenth dysshe neyther prediall nor personall but if the other that taketh the werke haue geyns aduauntage by the werke it semeth that it were nat agaynste reason that he shuld pay a personall tythe of his geyns the charges deducte ¶ Doctoure I pray the shewe me fyrst what thou takest for a personall tythe and vpon what grouÌ„d personal tithes be payd as thou thinkest so that one of vs mystake nat a nother theriÌ„ ¶ StudeÌ„t I will with good wyll therfore thou shalt vnderstaÌ„de that as I take it personall tythes be nat payde for any increase of the grounde / but for suche ê“fite as cometh by the labour or industrie of the person / as by byeng sellynge suche other / suche personall tythes as I take it muste be ordered after the custome the churche hath nat vsed to leuye those tythes by compulsion but by conscience of the parties / neuertheles Raymond sayth that it is good to pay personal tythes or with the assente of the person to distribute them to pore meÌ„ / or els to pay a certayn porcioÌ„ for the hole / but as InnoceÌ„ sayth / where the custome is that they shuld be payde the people be bounde to pay theÌ„ as well as predialles / the expences deducte / howe be it in the churche of EnglaÌ„de they vse to sue for suche personall tythes as wel as for predialles that is by reason of a coÌ„stitucioÌ„ prouinciall that was made by Robert wynchelsey late archebisshope of CauÌ„torbury / by the whiche it was ordeyned that personall tythes shuld be payd of craftes marchandyse / of the lucre of byeng sellinge / in lykewise of carpeÌ„ters / smythes / weuers / masons all other that worke for hyre that they shall pay tythes of theyr hyre except they will gyue any thyng certayne to the vse or to the light of the churche if it so please the person / in another place the sayd archebisshoppe saythe that of the pawnage of woodes suche other thiÌ„ges cÌ„ of fysshynges / trees / bees / downes / of diuers other thinges there remembred / of craftes / of byenge sellynge of the profites of diuers other thinges there receyted / euery