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
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
it semeth the lawe of reason in that sayeÌ„ge for the law of god as it maye one way be well conuenieÌ„tly taken bycause the lawe of reason is gyuen to euery reasonable creature by god And than it foloweth pursueantlye that it beloÌ„geth to the lawe of maÌ„ / to assigne this porcion or that as necessite shall requyre for theyr sustenaunce / than his sayenge agreeth well to that that is sayde before / that is to saye / that a certayne porcion is due for prestes for theyr spirituall ministracioÌ„ by the law of reason And than it wolde folowe therupon that if it were ordeyned for a lawe that al payeÌ„ge of tythes shuld fro heÌ„sforth cesse / that euery curate shulde haue assigned to hym suche certayne porcion of lande rent or annuite as shulde be sufficieÌ„t for hym for suche ministers as shulde be necessary to be vnder hym accordynge to the nombre of the people there / or that euery parisshene or housholder shulde gyue a certayne of money to that vse I suppose the lawe were good / that was the meanyng of IohaÌ„ gerson as it semeth in his wordes before rehersed / where he saith / but to chauÌ„ge tythes in to other rentes is by the law positiue / that is to say by the law of man And so me thynketh that if a hole couÌ„trey prescribe to be quyte of tythes of corne or gres so that the spirituall ministers haue a sufficient porcion beside to lyue vpon / that it is a good prescripcion / that they shulde nat offende / that in suche couÌ„treys payde no tythes / for it were harde to say that all the men of italie or of the cest parties be dampned bycause they pay no tythes but a certayne porcioÌ„ after the custome therfore certayne it is to pay suche a certayn porcioÌ„ as well they as all other be bouÌ„de if the churche aske it / any custome nat withstanding / but if the church aske it nat it semeth that by that nat asking the church remitteth it an exaÌ„ple therof we may take of the apostle Poule that though he might haue taken his necessari liuing of theÌ„ that he preched to / yet he toke it nat / neuertheles they that gaue it him nat dyd nat offeÌ„de bycause he dyd nat aske it / but if one maÌ„ iÌ„ a towne wolde pÌ„scribe to be discharged of tythes of corne gres / me thinketh the pÌ„scripcioÌ„ is nat good / oneles he caÌ„ proue that he recoÌ„penseth it in another thyng / for it semeth nat reasonable that he shuld paye lesse for hys tythes thaÌ„ his neyghbours do / seyng that the spirituall ministers are bouÌ„de to take as moche diligence for hym as they be for any other of the parysshe / wherfore it might staÌ„de with reason that he shuld be coÌ„pelled to pay his tythes as his neyghbours do / oneles he caÌ„ proue that he payeth in recoÌ„peÌ„ce therof more thaÌ„ the .x. ê‘te in another thinge Neuertheles I leue that mater to the iugemeÌ„t of other / thaÌ„ for a ferther profe that the said pÌ„scripcioÌ„ of nat payeÌ„ge tythes for trees of .xx. yere aboue / thoughe it were nat good of corne gres shulde be good / some make this reasoÌ„ / they say that there is no tythe but it is eyther a prediall tythe a ê‘sonal tythe / or a mixt tithe / they say that if a tythe shuld be payd of trees whaÌ„ they be so sold that that tythe were nat a pÌ„dial tythe / for the pÌ„dial tythe of trees is of such trees as briÌ„g forth frutes eÌ„crease ye rely / as apple trees / nut trees / pere trees / such other wherof the pÌ„dial tythe is the apples / nutê / perê such other frutê as com of them yerely whan the frutes be tithed if the owner after fell the trees / there is no tythe due therby / for two tythes may nat be payed of one thyng / of these tythes that is to saye of prediall tythes was the commaundement gyuen in the olde law to the Iewes / as appereth Leuitici xxvii where it is sayd Omnes decime terre siue de pomis arborum siue de frugibus domini suÌ„t illi sanctificantur that is to saye / all tythes of the erthe eyther of apples / of trees / or of graines be our lordes / to hym they be sanctified / and though the said lawe spekyth onely of apples / yet yt was vnderstaÌ„de of all maner of frutes And bycause yt sayth that all the tythes of the erthe be our lordes therfore calues / lambes / such other muste also be tythed / they be called by some men prediall tythes / that is saye / tythes that come of the grounde / howe be it thy call them onely predialles mediate / they be the fame tythes that in this writtyng be called mixt tythes / the other tythes that is to saye tythes of apples and corne suche other be called predialles immediate / for they come immediatly of the grounde / so do nat mixte tythes as euidently appereth ¶ Doctoure But what thinkest thou shal be the prediall tythes of asshes / elmes / salowes / alders / such other trees as bere no frutes / wherof any profite cometh / why shall nat the .x. parte of the selfe thynge be the tythe therof if they be cut downe as well as it is of corne gras ¶ Student For I thynke that there is to that inteÌ„te great diuersite betwene corn gres / trees / that for diuers consideracions wherof one is this The propertie of corne gras is nat to growe ouer one yere if it do it wyll perysshe come to nought so the cuttynge downe of it is the perfeccioÌ„ preseruacioÌ„ therof / the special cause that any encrease foloweth of the same And therfore the .x. parte of that encrease shal be payde as a predyall tythe / there no deduccion shal be made for the charges of it / so it is of shepe beastes that muste be taken kylled in tyme / for els they may perysshe come to nought But whaÌ„ trees be felled that fellynge is nat the perfeccioÌ„ of the trees / ne it causeth nat them to encrease but to decay / for most comonly the trees wolde be better if they might growe styll And therfore vpoÌ„ that that is the cause of the decaye distruccioÌ„ of them it semeth there can no prediall tythe ryse / some meÌ„ say that this was the cause why our lorde in the said chapiter of Leuitici .xxvii. gaue no coÌ„mandement to tythe the trees but the frutes of the trees onely ¶ Doctour It appereth in Paralape .xxxi. that the Iewes in the tyme of the kyng Ezechias offered in the temple all thynges that the groude brought forth / that was trees as well as corne gres ¶ StudeÌ„t It appereth nat that they dyd that by
that he shall nat call executours to accoÌ„pte ¶ Student I am somwhat in dout theriÌ„ / but it semeth that if it myght be enacted by statute that all willes shulde be voyde as is aforesayde that thaÌ„ it myght be enacted that no man shulde haue auctoritie to call none to accompte vpon suche willes but suche as the statute shall therin appoiÌ„te / for he that may do the more may do the lesse / nat withstandynge I wyll nothynge speke determinately in that poynt at this tyme / ne I meane nat that it were good for to make a statute that all wylles shulde be voyde / for I thynke them righte expedient / but myne inteÌ„t is to proue that the comon lawe may ordeyne the tyme of the full age / as well in wylles of temporal thynges as otherwyse / also that no will shal be made And if it may so do than moche stronger it belongeth to the kynges lawes to interpretate willes concernyng teÌ„porall thynges as well whan they come iÌ„ argument before his Iuges as whaÌ„ they come in argument before spirituall Iuges that they ought nat to be iuged by seuerall lawes that is to saye by the spiritual iuges in one maner by the kinges iuges in another maner ☞ If a man be conuicte of heresye before the ordinari / whether his goodes be forfayth The .xxix. Chapitre DOctoure It appereth in Summa angelica in the title Donatio prima the .xiii. article / that he that is an heretyke may nat make executoures / for in the lawe his goodes be forfet / what is the lawe of the realme therin ¶ Student If a man be conuicte of heresie and abiure he hath forfet no goodes / but if he be conuicte of heresye be deliuered to laye meÌ„nes haÌ„des than hath he forfet all his goodes that he hath at the tyme that he is deliuered to them / thoughe he be nat put in execucion for the heresye / but his landes he shall nat forfet excepte he be dede for the heresye / than he shall forfet theÌ„ to the lordes of the fee / as in case of felonie excepte they be holden of the ordinarie / for thaÌ„ the kynge shal haue the forfeture / as it appereth by a statute made the seconde yere of kynge Henry the .v. the .vii. Chapitre ¶ Doctour Me thynket that as it belongeth onely to the churche to determine heresyes / that so it belongeth to the churche to determine what punisshemeÌ„t he shall haue for his heresye / excepte deth whiche they maye nat be iuges in / but if the churche decre that he shall therefore forfet his goodes me thiÌ„keth that they be forfet by that decre ¶ Student Nay veryly for they be teÌ„porall belonge to the iugement of the kynges court I thynke the ordinarie might haue set no fine vpon none empeched of heresye tyll it was ordeyned by the statute of Henry the .iiii. that he maye set a fyne in that case if he se cause / and than the kynge shall haue that fyne as in the sayde statute appereth ☞ Where diuers patrons be of an auousâ— the churche voydeth / the patroÌ„s varie in theyr presentementes / whether the bisshope shall haue libertye to present whiche of the encuÌ„beÌ„tes that he wyll or nat ⸫ The .xxx. Chapitre DOctoure This question is asked in SuÌ„ma rosella iÌ„ the title Patronê° the ix article there it appereth by the better oppinion that he may present whether clerke he wyll / howe be it the maker of the sayde summe / sayth that by the / rigoure of the lawe the bisshope in suche case may present a strauÌ„ger because the patroÌ„s agre nat / in the same chapitre patronus the .xv. article It is sayde that he muste be preferred that hath the moste merites and hath the moost parte of the patrons And if the nombre be egall / that than it is to coÌ„syder the merites of the patrons if they be of lyke merite / than maye the bisshop coÌ„mauÌ„de them to agre to present agayne And if they can nat yet agre than the libertie to present is gyueÌ„ to the bisshop to take whiche he wyll / if he may nat yet present without greate trouble than shall the bisshop order the churche in the beste maner he can / if he can nat order it / than shal he suspende the churche take awaye the relikes / to the rebuke of the patroÌ„s / if they will nat be so ordered than muste he aske helpe of the temporalitie / in the .xv. article of the sayde title Patronê° / It is asked whether it be expedient in suche case that the more parte of the patroÌ„s agre hauyng respecte to all the patrons / or that it suffise to haue the more parte in coÌ„parison of the lesse parte as thus There be .iiii. patrons two present one clerke the thyrde presenteth another the fourth another / he that is presented by .ii. hath nat the more parte in comparison of all patrons for they be egall / but he hath the more parte hauynge respect to the other presentemeÌ„tes / to this question it is answered that other the presentement is made of them that be of colage there is requisite the more parte hauiÌ„ge respecte to all the colage / or elles euery maÌ„ presenteth for hym selfe as comoÌ„ly do laye men that haue the patronage of theyr patrimony / than it suffiseth to haue the more parte in respecte of the other partes / doth nat the law of EnglaÌ„de agre to these diuersities ¶ StudeÌ„t No veryly ¶ Doctour What order than shal be takeÌ„ in the lawe of Englande if the patrons varie in theyr presentementes ¶ Student After the lawes of Englande this order shal be taken / if they be ioyntenauÌ„tes or tenauntes in comon of the patronage / they vary in presentemente the ordinary is nat bounden to admitte none of theyr clerkes nether the more parte nor the lesse / if the vi monethes passe or they agre theÌ„ he may present by the laps But he may nat preseÌ„t within the .vi. monethes / for if he do they maye agre brynge a Quare impedit agaynste hym / remoue his clerke / so the ordinarie shal be as distourboure And if the patrons haue the patronage by disceÌ„te as coperceners than is the ordinarie bounde to admitte the clerke of the eldest syster for the eldest shall haue the preferment in the lawe if she wyll / than at the nexte auoydaunce the nexte syster shal present so by turne one syster after another tyll all the systers or theyr heyres haue presented / and than the eldest syster shall begyn agayne / this is called a presentynge by turne / it holdeth alway betwene coperceners of an aduouson / excepte they agre to preseÌ„t togyder / or that they agre by coÌ„posicion to presente in some other maner / if they do so that agrement muste staÌ„de
moste parfite knowlege of any lawe or cunnyng And of the most parfite and moste true applyenge of the same / to any particuler acte of man / foloweth the moste ê“fite / the most pure / the most beste conscieÌ„ce And if therebe defaute in knowynge of the trouthe of suche a lawe / or in the applyenge of the same to any ê‘ticuler acte / than therupon foloweth an errour or defaute in conscience / as it may appere by this example Sinderesis ministeryth a vniuersal principle that neuer erreth / that is to say / that an vnlawful thiÌ„ge is nat to be done And than it myght be taken by some man that euery othe is vnlawful / bycause our lorde saythe Matth. v. Ye shall in no wyse swere And yet he that by reason of the sayde wordes wyll holde that it is no lawfull in no case to swere / erreth in conscieÌ„ce / for he hath nat the ê“fite knowlege and vnderstandynge of the trouth of the sayd gospel / nor he reduceth nat that sayeng of scripture / to other scriptures / in whiche it is grauÌ„ted that iÌ„ some case an othe may be lawfull and the cause why conscience maye so erre in the sayd case and in other lyke / is bycause conscience is formed of a certayne particuler ê“posicion or question grouÌ„ded vpon vntuersal rewles ordeyned for suche thynges as are to be done And bycause a particuler proposicion is nat knowen of hymselfe / but must appere beserched by a diligeÌ„t serche of reason / therfore in that serche in the conscience that shulde be formed therupon may happen to be errour / therupon it is sayd that there is errour in coÌ„science / whiche errour commeth eyther bycause he dothe nat assente to that he ought to assent vnto / or els bycause his reason wherby he dothe referre one thynge to another is disceyued For further declaracion wherof it is to vnderstande that errour in coÌ„scieÌ„ce coÌ„meth .vii. maner of wayes Fyrste is throughe ignorance and that is whan a man knoweth nat what he ought to do / what he ought nat to do and than he ought to aske conceyll of them that he thynketh moste experte in that science wherupon his doute ryseth And if he can haue no conceyll / thaÌ„ he muste holly coÌ„myt hym to god he of his goodnes wyll so ordre hym / that he wyll saue hym from offence The seconde is through necligence / as whan a man is necligent to serche his owne conscience / or to enquere the trouthe of other The thyrde is throughe pryde / as whan he wyll nat mekyn hym selfe ne beleue them that be better and wyser than he is The fourthe is throughe singularitie as when a man foloweth his owne wyt / and wyll nat conferme hym selfe to other / nor folowe the good common wayes of good men The fyfth is through an in ordinat affeccion to hym selfe / wherby he maketh coÌ„sciensce to folowe his desyre / so he causeth her to go out of her ryght course The sixte is throughe pusillaminite whereby some persone dredeth oft tymes suche thinges as of reasoÌ„ he ought nat to drede The seuynth is throughe perplexitie / that is when a man beleueth hym selfe to be so set betwyxte two sinnes that he thynketh it vnpossible / but that he shall fall in to the one but a man can neuer be so proplexed iÌ„ dede but through an Erour in conscience if hy wyll put away that errour he shal be deliuered Therfore I praye the that thou wylte alwayes haue a good conscience if thou haue so / thou shalt always be mery / if thyne owne herte reproue the nat thou shalte alwayes haue inwarde peace The gladnes of rightewyse men is of god in god / theyr ioye is always in trouth and goodnes There be many diuersities of coÌ„science / but there is none better then that / wherby a man truely knoweth hym selfe Many men know many great hygh coÌ„nynge thynges yet know nat them selfe truely he that knoweth nat hym self knoweth no thyng wel Also he hath a good a clene conscience / that hath puritie clennes in his herte / trouth in his worde / and rightwysenes in his dede And as a lighte is sette in a lanterne that all that is in the house maye ben seen therby so almyghty god hath sette conscience in the myddes of euery resonable soule as a lyght wherby he may discerne know what he ought to do / what he ought nat to do Therfore for as moche as it behoueth the to be occupyed in suche thynges as perteyne to the lawe It is necessary that thou euer holde a pure a clene coÌ„scieÌ„ce / specially in suche thyngê as coÌ„cerne restitucion for the synÌ„e is nat forgyuen / but the thynge that is wrongfully taken be restored And I conceyll the also that thou loue that is good / and flye that is euyll / and that thou do to another as thou woldest shulde be done to the that thou do no thinge to other that thou woldest nat shulde be done to the. That thou do no thyng agaynste trouth / that thou lyue peasablye with thy neyghboure / that thou do iustice to euery man as moche as in the is And also that in euery generall rule of the lawe / thou do obserue kepe equite and if thou do thus I trust the lyght of thy lanterne / that is thy conscience shall neuer be extyneted ¶ Stud. But I pray the shewe me what is that equitie that thou haste spoken of byfore / that thou woldest that I shulde kepe ¶ Doctour I wyll with good wyll shewe the somwhat therof ☞ What is Equytie The .xvi. Cha. Doctoure Equytie is a ryghtwystnes that considereth all the ê‘ticuler circuÌ„stances of the dede / the whiche also is tempered with the swetnes of mercy And suche an equytie muste alway be obserued in euery lawe of man / and in euery generall rule therof / that knewe he well that sayd thus Lawes couet to be rewled by equytie And the wyse man sayth Be nat ouer moche ryghtwyse for the extreme ryghtwysenes is extreme wronge / as who sayth yf thou take all that the wordes of the lawe gyueth the / thou shalte somtyme do agaynste the lawe And for the playner declaracion what equytie is thou shalte vnderstaÌ„de that syth the dedes and actes of men / for whiche lawes ben ordeyned happen in diuers maners infinitlye It is nat possible to make any general rule of the lawe / but that it shal fayle in some case And therfore makers of lawes take hede to suche thynges as may often come nat to euery particuler case / for they coulde nat though they wolde And therfore to folowe the wordes of the lawe / were in some case both agaynst Iustice the comon welth wherfore in some cases it is necessary to leue the wordes of the lawe / to folowe that reason
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
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
fourth lesson the thyrde corollarie sayth that god wyl that makers of lawes iuge only of outwarde thynges reserue secrete thinges to him And so it appereth that man maye nat iuge of the inward intent of the deed / but of suche thynges as be apparaūt / certayne it is that it is nat apparaunte that there was any suche corrupte entent in the makers of the sayd statute / howe may it therfore be sayd that that lawe is good or right wyse / that nat only suffereth suche thynges agaynst the statute / but also agaynst the commaundement of god ¶ Studēt To that some answere say that whan the lande is solde a recouery is had therupon in the kīges court of recorde that it sufficeth to barre the tayle in conscience / for they saye that as the tayle was fyrste ordayned by the lawe So they saye that by the lawe it is adnulled agayne ¶ Doctoure Be thou thy self iuge if in that case there be lyke auctorite in the makynge of the tayle as there is in the adnullynge therof / for it was ordayned by auctorite of parliament / the which is alway taken for the moste hyghe court in this realme byfore any other / and it is anulled by a false supposell for that that they that be named demaundaūtes shulde haue right to the lande where in trouthe they neuer had right therto whereupō foloweth a false supposell in the writte / a false supposell in the declaracion a voucher to warraūte by couyn of suche a person as hath nothynge to yelde in value thereupon by couyn collucion of the perties foloweth the default of the vouchee by the whiche default the iugement shall be gyuen And so al that iugemente is deriuyed grounded of the vntrue supposell ouyn of the parties / whereby the lawe of realme that hath ordayned suche a writte of entre to helpe them that haue righte to landes or tenementes is defrauded the courte is desceyued the heyre is disherited as it is to doubte the byer the seller theyr heyres assignes hauing knowlege of the tayle be bounde to restitucion / and verily I haue herde many tymes / that aft the lawe of the realme suche recoueries shulde be no barre to the heyre in the tayle if the lawe of the realme might be therein indifferently harde ¶ Studēt I can nat se but that after the lawe of the realme it is a barre of the tayle / for whan the tenāt in tayle hath vouched to warrauntie / and the vouchee hathe appered entred in to the warrauntye / after hath made defaut in despite of the court whereupō iugemēt is gyuen for the demaundaunt agaynste the tenaunt / for the tenaunt that he shal recouer in value agaynst the vouchee / the heyre in the tayle shulde after brynge his forme done and recouer the landes intayled / and after vouchee purchaseth landes / than shulde the heyre also haue execucion agaynst hym to the value of the landes entayled as heyre to his auncestre that was tenaunt in the fyrst accion and so he shulde haue his owne landes / and also the landes recouered in value and therefore bycause of that presumpcion that the vouchee maye purchase landes after the iugement / some be of opinion that it is in the lawe a good barre of the tayle ¶ Doctor. I suppose that in that case thou haste put that the vouche maye barre the heyre in tayle of his recouerie in value bycause he hath recouered the fyrste landes Neuerthelesse I wyll take a respite to be aduised of that recouerye in value And if thou can yet shewe me any other consideracion why the sayde recoueries shuld stāde with conscience / I praye the let me here thy cōceyte therein / for the multitude of the said recoueries is so great that it were greate pytye that all they shuld be bounde to restitucion that haue landes by suche recoueries syth there is none that as far as I can here disposeth them to restore ¶ Student Some men make an other reason to proue that the sayde recoueries shulde be sufficient by the lawe to a voyde the state of west than if they be sufficiēt therto / they be sufficient in conscience ¶ Doctour What is theyr reason therin ¶ Student In the .vii. yere of kynge Hēry the .viii. the .iiii. chapitre amonge other thynges it is enacted / that all recouers theyr heyres assignes may aduowe and iustifie for rentes seruice and customes by them recouered as they agaynste whome they recouered mighte haue done And than they saye that whā the parliamēt gaue to suche recouerers auctorite to aduowe iustifie for suche rētes customes seruices as they recouered / that the entēt of the parliament was that suche recouers shulde haue right to that for the whiche they shulde aduowe or iustifi for els they saye that it shuld be in vayne to gyue thē suche power / that the parliament shulde els be takē in maner as fortifiers of wrōg full rules so they say that suche recouerers by reason of the sayde statute haue right the law ¶ Doctour That statute as it semeth was made onely to gyue to the recouerers a forme to aduowe iustyfie / whiche they had nat byfore though they had recoueryd vpon a good tytle And the cause why they had no forme to aduowe or iustifie byfore the sayde statute was for as moche as the recouerers dyd nat by the pretence of theyr acciō afferme the possession of him or thē agaīst whome they recouered / nor claymed nat by them / but rather disafermed and distroyed theyr astate And therfore they cā nat alege any continaunce of theyr title by thē / as they may that haue rentes or seruices / or such other of the graunt of other by dede or by fyne And therfore as it semeth the moste principall intent of that statute was that suche recouerers shuld auowe iustify for rentes seruices customes as they shulde or might do that had them by fine or dede nat hauinge any respect as it semeth whether they recouered agaynst tenaūt in fee simple or in fee tayle / nor whether the recoueries were had vpon a rightfull title And therfore as me semeth the sayd estatute neyther affermeth nor disaffermeth the title of the recoueries wherby they do aduowe for if a man had right byfore the recouerye that right shulde remayne vnto hym natwithstandynge the sayd statute so me semeth that the title of them that haue the landes entayled by suche recoueries is nothynge fortyfyed nor affermyd by the said estatute but that they are ī the same case as they were byfore what thynkest thou therin ¶ Student / this mater is great / for as thou sayste there be so many that haue tayled landes by suche recoueries / that it were great pytie heuynes to condempne so many persones to iuge that they all were bounde to restitucion For I thynke there
there shulde nat be so great expenses in the law nor so great variaunce amonge the people ne yet so greate offence of conscience as there is nowe in many persones ¶ Student Verily me thynketh that thy oppinion is righte good and charitable in this behalfe And that the rewlers be boūde in conscience to loke well vpon it to se it reformed and broughte in to good ordre And verily by that thou haste sayde therein thou haste broughte me in to remembraunce that there be diuerse lyke snares concernynge spirituall matters suffred amonge the people / whereby I dowte that many spirituall rewlers be in greate offēce agaynste god As it is of that poynte that the spirituall men haue spoken so moche of that preestes shulde nat be putte to answere byfore laye men specially of felonies and murders / and of the statute of xlv E. iii. the .iii. chapitre / where it is said that a prohibicion shall lye / where a mā is sued in the spirituall courte for tythe of wood / that is aboue the age of .xx. yere / by the name of Silua cedua as it hathe done byfore / and they haue in open Sermons and in diuerse other open communicaciōs and counsayles causes it to be openly notefied and knowen that they shulde be all accursed that put preestes to answere / or that maynteyne the sayd estatute / or any other lyke to it And after whā they haue right well perceyued that nat withstandynge all that they haue done therein / it hath ben vsed in the same poītes through all the realme in lyke maner as it was by fore Than they haue sitte styll and lette the matter passe / and so whan they haue broughte many persones in greate daunger / but moste specially them that haue gyuen credence to theyr saynge / and yet by reason of the olde custome haue done as they dyd before / than there they haue lett thē / but verily it is to feare that there is to thēselfe right great offēce therby / that is for to say to s◠so many ī so great daunger as they say they be And to do no more to bringe them out of it than they haue done for if it be trewe as they saye / they oughte to sticke to it with effecte in all charite till it were reformed And if it be nat as they say thā they haue caused many to offende that haue gyuen credēce to them / and yet countrary to theyr owne conscience do as they dyd byfore / and that percase shulde nat haue offēded if suche saynges had nat ben And so it semeth that they haue ī these matters done eyther to moch or to libel And I beseche all mighty god that some good man may so call vpon all these matters that we haue nowe cōmoned of / so that they that be in auctorite maye somwhat pondre them / to ordre them in suche maner that offence of cōscience growe nat so lightly thereby hereafter as it hathe done in tyme paste And verily he that on the crosse knewe the pryce of mānes soule wil hereafter aske a righte strayte accompt of rewlers for euery soule that is vnder them and that shall perysshe through theyr defaulte ¶ Addition THus I haue shewed vnto the ī this litle Dialoge howe the law of Englande is grounded vpō the lawe of reason the lawe of god / the generall customes of the realme / and vpon certayne principles that be called maximes vpon the particuler customes vsed in diuerse Cities countries / and vpon statutes whiche haue ben made in diuerse parliamentes by our soue rayne lorde the kynge and his progenitoures / and by the lordes spirituall temporall / all the cōmons of the realme And I haue also shewed the in the .ix. chapitre of this boke / vnder what maner the sayd generall customes maximes of the lawe may be proued affermed if they were denyed / diuers other thynges be conteyned in this presente Dialoge / whiche wyll appere in the table / that is in the latter ende of the boke / as to the reders wyll appere And in the ende of the sayd Dialoge I haue at thy desyre shewed the my cōceyte concernīge recoueries of tayled landes / and thou haste vpon the sayde recoueries shewed me thyne oppinion And I beseche our lorde sette them shortelye in a good clere way / for surely it wyll be right expediente for the well ordrynge of conscience in many persones that they be so And thus god of peace and loue be alway with vs. Amen ¶ Here endeth the fyrste Dialogue in Englisshe / with newe Addicions betwixte a Doctoure of diuinite / and a Student in the lawes of Englande And here after foloweth the Table ⸫ ¶ Tabula Here aft foloweth the table with certayne Addiciōs newly added therto And ouer all the Chapitres and questions whiche be newly added Ye shall fynde entite led this worde Addicion bothe in the Table and also in the boke THe introduccion Fo. 2. ¶ Of the lawe eternall The fyrst chapitre Fo. 3. ¶ Of the lawe of reason / the whiche by Doctours is called the lawe of nature of reasonable creature The. seconde chapitre Folio 5. ¶ Of the lawe of god The iii. chapitre Folio 7. ¶ Of the lawe of man The .iiii. chapitre Folio 9. ¶ Of the fyrste grounde of the law of Englande The .v. chapitre Fo. 11. ¶ Addicion Fo. 12 ¶ Of the seconde grounde of the lawe of Englande The .vi. chapitre Folio 14. ¶ Of the thyrde grounde of the lawe of Englande The .vii. chapitre Folio 16. ¶ Of the .iiii. grounde of the law of Englande The .viii. chapitre Fo. 21. ¶ Of diuerse cases / wherein the Student dowteth whether they be onely maximes of the lawe / or that they be grounded vpō the lawe of reason The .ix. chapitre Folio 25. ¶ Of the .v. grounde of the lawe of Englande The .x. chapitre Fo. 27. ¶ Of the .vi. grounde of the lawe of Englande The .xi. chapitre Folio 28. ¶ The fyrste question of the Doctoure / of the lawe of Englande and conscience The .xii. chapitre Fo. 29. ¶ what Sinderisis is The .xiii. chapitre Folio 31. ¶ Of reason The .xiiii. cha Fo. 32. ¶ Of cōscience The .xv. cha Fo. 33. ¶ what is Equtie The .xvi. chapitre Folio 36. ¶ In what maner a man shal be holpē by equities in the lawes of Englande The .xvii. chapitre Fo. 38. ¶ whether the statute hereafter reherced by the Doctoure be agaynst conscience or nat The .xviii. chapitre Fo. 41. ¶ Of what lawe this question is to be vnderstande / that is to saye where consciēce shal be rewled after the lawe The .xix. chapitre Fo. 42. ¶ Addicion Fo. 44. ¶ Addicion Fo. 45. ¶ Of diuerse cases / where cōscience is to be ordered after the lawe The .xx. chapitre Fo. 46. ¶ Addicion Fo. 47. ¶ The fyrste question of the Student The .xxi. chapitre Fo. 49. ¶ The
/ 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
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
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
/ yet I meruayle howe suche an vse may be reserued against a fyne that is one of the hyghest recordes that is in the law / and is taken in the lawe of so hyghe effecte that it shulde make an ende of all stryffes / or agaynst a recouere that is ordeyned in the lawe for them that be wronged to recouer theyr ryght by / and me thiÌ„keth that great encoÌ„uenience and hurte may folowe whan suche recordes may so lyghtly be auoyded by a secrete intente or vse of the ê‘ties and by a nude and bare auerment and mater in dede / and specially sythe suche a mater in dede maye be aleged that is nat true wherby may rise great strife bytwene the parties / and great coÌ„fusion and vncertaynte in the lawe / but neuertheles sythe our intente is nat at this tyme to treate of that mater I pray the touche shortly some of the causes why there hath ben so many persones put in estate of landes to the vse of other as there hathe ben / for as I here say / fewe men be sole seased of theyr owne landes ¶ Student There hath ben many causes therof / of the whiche some be put away by diuerse statutê / and some remayne yet / wherfore thou shalte vnderstande that some haue put theyr lande in feoffent secretely to the inteÌ„t that they that haue ryght to the lande shuld nat knowe agaynst whome to bryng theyr accion / that is moche what remedied by diuerse statutes that gyue accioÌ„s agaynst pernours and takers of the profites And somtyme suche feoffemeÌ„tes of trust haue ben made to haue mayntenaunce and berynge of theyr feoffes / whiche peraduenture were great lordes or rulers in the countreye / and therfore to put a way suche mayntenaunce treble damagê be gyuen by statute against theÌ„ that make suche feoffementes for mayntenauÌ„ce And soÌ„tyme they were made to the vse of mort mayne whiche myght than be made with out forfayture thoughe it were prohibite that the freeholde myght nat be gyuen in mortmayne But that is put away by the statute of Rycharde the seconde And somtyme they were made to defraude the lordes of wardê / relyefs / harryots / and of the landes of theyr vylleyns / but those poiÌ„tes be put away by diuerse statutes made iÌ„ the tyme of kynge Henry the .vii. Somtyme they were made to auoyde execucions vpon statutes Staple / Statute MarchauÌ„te / Recognisaunce / and remedy is prouided for that that a maÌ„ shall haue execucion of all suche landes as any persone is seased of to the vse of hym that is so bounde at the tyme of execucion sued iÌ„ the .xix. yere of H. the .vii. And yet remayne feoffementes / fynes / and recoueres in vse for many other causes / in maner as many as there dyd byfore the sayde estatutes And one cause is why they be yet thus vsed is to put away tenauncy by the curtesy and tytles of dower An other cause is for that landê in vse shall nat be put in execucion vpon a statute staple / statute marchaunt / nor recognisaunce / but suche as be in the handê of the recognisour tyme of the execucion sued And somtyme landê be put iÌ„ vse that they shulde nat be put in execucion vpon a wryt of Extendi facias ad valenciaÌ„ And somtyme suche vses be made that he to whose vse cÌ„ may declare his wyl theron / somtyme for surety of diuerse couenauntes in indentures / of mariage / other bargains / and these two last articles be the chyefe principal causes why so moche laÌ„de is put in vse Also landê in vse be no asses neyther in a Fourmedone nor in an accion of Det agaynste the heyre ne they shall nat be put in execucion by an Elegit sued vpon a recouere as some men say and these be the very chyefe causes as I nowe remeÌ„bre why so moche lande standeth iÌ„ vse as there doth / and all the sayd vses be reserued by the intente of the parties vnderstande or agreed bytwene them / and that many tymes dyrectely agaynst the wordes of feoffement / fyne / or recouere / and that is done by the lawe of reason as is aforesayd ¶ Doctour May nat an vse be assigned to a straunger as well as to be reserued to the feoffour if the feoffour so appoynted it vpon his feoffement ¶ Student yes as well / in lykewyse to the feoffe and that vpon a fre gyfte without any bargayne or recompence if the feoffour so wyl ¶ Doctour What if no feoffement be made but that a man grauÌ„t to his feoffe that fro thens forthe he shall stande seased to his owne vse / is nat the vse chaunged though there be no recompence ¶ Student I thynke yes for there was an vse in Esse byfore the gyfte whiche he may as lawfully gyue away as he myght the lande if he had it in possession ¶ Doc. And what if a man beynge seased of lande in fee graunte to a nother of his mere mocion without bargayne or recompeÌ„ce that he fro thens forthe shal be seased to the vse of the other / is nat that graunte good ¶ Student I suppose that it is nat good / for as I take the lawe a man can nat commence an vse but by lyuerey of seasoÌ„ or vpon a bargayne or some other recompence ¶ Doctoure I holde me contented with that thou haste sayd in this Chaphitre for this tyme and I pray the shewe me what diuersite thou putteste bytwene those two cases that thou hast byfore reherced in the xx Chapitre and in the .xxi. Chapitre of this present boke ¶ Student I wyl with good wyll ⧠The diuersite bytwene two cases here after folowynge / wherof one is put in the .xx. Chapitre and the other in the .xxi. Chapitre of this present boke The .xxiii. Chapitre ¶ STudent The fyrste case of the sayd two cases is this A man maketh a feoffement by dede indented vpon a condicion that the feoffe shall paye a certayne rente yerely to a straunger cÌ„ if he paye it nat that it shal be lawfull to the straunger to entre into the lande In this case I sayd byfore in the .xx. Chapitre that the strauÌ„ger myght nat entre bycause that he was nat pryuey vnto the condicion But I sayd that iÌ„ that case the feoffour myght lawfully reentre by the fyrste wordê of the indenture bycause they implye a condicioÌ„ in the lawe that the other wordes that is to saye that the straunger shulde entre be voyde in lawe and conscience And therfore I sayd ferther that whan the feoffour had reeÌ„tred that he was seased of the laÌ„de to his owne vse nat to the vse of the straÌ„ger / thoughe his entent at the makyng of the feoffement were that the straunger after his entre shuld haue had the laÌ„d to his owne vse if he myghte haue entred by the law And the cause why I thynke that the
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
the law that if a Bisshope be vouched to warrātie the tenaunt byndeth hī to the warrātye by reason of a lease made to hym by the Bisshope by the deane the chapitre yelding a rente / that in that case the Bisshoppe may nat disclayme in that reuercion without the assent of the deane chapitre But yet if a reuercion were graūted to a deane a chapitre the deane refuse / the graunt is voyde / so it appereth that a deane may refuse to take a gyfte or graunte of landes or goodes or of a reuercion made to hym to the chapitre that yet he maye nat disagre to a remaīdre or deuise / the diuersite is because the remayndre deuise be caste vpon hym without any assent / wherunto nether the deane nor the chapitre by them selfe maye in no wyse disagre without the assent of the other / but a gifte or graūt is nat good to them without they bothe assēt in suche giftes as I suppose an Infaunt may disagre as well as one of full age / but if a woman couert disagre to a gifte the husbande agre that gyfte is good ¶ Doctoure what if the landes in that case of a man his wyfe be charged with damages or be charged with more rent than the lande is worthe / the husbande dye shall the wyfe be charged to the damages or to the rent ¶ Studēt I thynke nay if the wyfe refuse the occupacion of the grounde after her husbande deth / I thynke the same lawe to be if a lease be made to the husbande to the wyfe yelding a greater rent thā the lande is worth that the wyfe after the husbandes dethe maye refuse the lease to saue her fro the payment of the rente / so may the successour of an Abbot ¶ Docto. And if the husbande in that case ouerliue the wyfe than make his executours and dye / whether may his executours in lykewyse refuse the lease ¶ Student If they haue goodes sufficient of theyr testatoure to pay the rente I thynke they may nat refuse it / but if they haue no goodes sufficient of theyr testatours to pay the rente to the ende of the terme / I thynke if they relinquisshe the occupacion they may by special pleedynge discharge them selfe of the rent and the lease / and if they do nat they may lightly charge them selfe of theyr owne goodes And if a lease be made for terme of lyfe the remayndre to an Abbot for terme of the lyfe of Iohan at style / reseruynge a greater rente than the lande is worthe / and after the tenaunte for terme of lyfe dyeth the Abbot may refuse the remayndre for the cause before reherced / and in case that the Abbot assent to the remaindre wherby he is charged to the rēt durynge the tyme that is Abbot / after he dyeth or is deposed liuynge the sayd Iohā at style / in that case his successoure maye discharge hym selfe by refusinge the occupacion of the lande as is aforesayd But I thynke that if suche a remayndre were made to a deane / to the chapitre / the deane agre without the assent of the chapitre that in that case the deane the chapitre maye afterwarde disagre to the remayndre and that the acte of the deane without the assēt of the chapitre shall nat charge the chapitre ī that behalfe / thus it appereth though the meaninge of the sayde chapitre article in the sayde summe be / that a prelate may nat disagre vnto a legacie for hurtīge of the house / yet he may after the lawes of the realme disagre thereto where it shulde hurte his house And if in a Precipe quod reddat there be but one tenaunt be he spirituall or temporall / he refuse by waye of disclaymoure in suche case where he maye disclayme by the lawe / there the lande shal veste in the demaundaunt / if there be two tenauntes than it shall veste in his felowe / if he wyll take the hole tenaūcie vpon him or els it shall veste in the demaundaunte But if an Abbot or a laye man refuse the takynge of the profites / shewe a speciall cause why it shulde hurte hym if he dydde assente be therby discharged as is sayde before / In whome the lande shall than veste it is more doute whereof I wyll no ferther speke at this tyme. And thus it appereth by diuerse of the cases that be put in this chapitre that he that is ignoraunt in the lawe of the realme / shall lacke the true iugement of conscience in many cases / For in many of these cases that that maye be done therein by the lawe muste also be obserued in conscience c̄ ☞ Whether a gyfte made vnder a condicion be voyde if the souerayne onely breke the condicion ⸫ The .xxxiiii. Chapitre SLudent In Sūma rosella in the title alienacio / the .xii. article is asked this question whether a gyfte made vnder a certayne forme may be auoyded or reuoked because the prelate or souereyne onely dyd breke the forme / it is there answered that it may nat for that the dede of the prelate onely ought nat to hurte the churche / if those wordes vnder a maner be vnderstande of a gyfte vpon condicion as they seme to be / than the sayd solucion holdeth nat in this realme nether in lawe nor consciēce ¶ Doctoure What is than the law of Englande if a man enfeffe an Abbot by dede intented vpon condicion that if the Abbot paye nat to the feffoure a certayne some of money at suche a daye / that than it shal be lawfull to the feoffour to reentre / at that day the Abbot fayleth of his paymēt may the feoffer lawfully reentre put out the Abbot ¶ Student ye veryly for he had no right to the lande but by the gyfte of the feffour his gyfte was condicionell therfore if the condicion be broken it is lawfull by the lawe of Englāde for the feffoure to reentre to take his lande agayn to holde it as in his fyrst estate by which reentre after the lawes of the realme he disproueth the fyrste lyuerey of season al the meane actes done betwene the fyrst feffement the reētre / it forceth litle in the lawe in whome the defaute be that the cōdicion was nat performed whether in the Abbot or in his couēt or ī bothe / or in any other persone what so euer he be excepte it be in the feffoure hīselfe And it is great diuersitie betwene a clere gyfte made to an Abbot without cōdiciō / where it is made with cōdictō / for whan it is made without cōdiciō the acte of the Abbot onely shal nat by the comō lawe disherite the house but it be in very fewe cases / but yet vpon diuers statutes the sufferaūce of the Abbot
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
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
the coÌ„maÌ„dement of god therfore it is lyke that they dyd it of theyr owne deuocion of a fauour that they had aboue theyr dutye to the repayrynge of the temple whiche the kynge Ezechias had theÌ„ coÌ„manded to be repayred / so that 〈◊〉 proueth nothynge that tythe shuld be payde for trees / therefore they say ferther that trouth it is that if a man to the entent he wolde pay no tythe wolde wilfully suffer his corne gres to stande still to perisshe / he shuld offende coÌ„scieÌ„ce therby / but thoughe he suffer his trees to staÌ„de still coÌ„tinually withoute fellinge bycause he thiÌ„keth a tythe wold be asked if he felled theÌ„ so that he do it nat of an euill will of the curate he offeÌ„deth nat iÌ„ coÌ„scieÌ„ce / ne he is nat bouÌ„de to restitucioÌ„ therfore as he shuld be if it were of corne gres as before apereth / another diuersiti is thê In this case of rythe worde / the tythe therof wolde serue so litle so that purpose that tythes be payd for that it is nat likely that they that made the law for paymeÌ„t of tythes enteÌ„ded that any fythe shuld be payde for trees or wode / for the spirituall ministers muste of necessitie spende dayly wekely / therfore the tythe of trees or wode that cometh so seldoÌ„ wold serue so litell to the purpose that it shuld be payd for that it wolde nat helpe theÌ„ in theyr necessite so that if they shulde be driuen to truste therto though it might helpe hiÌ„ in whose time it shulde happeÌ„ to fall yet it shuld deceyue the that trusted to it in the meane tyme also shulde leue the parysshe without any to minister to theÌ„ ¶ Doctor. I wolde well agre that for trees that bere frute there shuld no predial tythe be payd whaÌ„ they be solde / for the prediall tythe of theÌ„ is the frutes that come of theÌ„ so there caÌ„ nat be two pÌ„diales of one thiÌ„ge / as thou hast sayd But of other tres that bere no frute me thiÌ„keth that a pÌ„dial tythe shuld be payd whaÌ„ they be solde / so it appereth that there ought to be by the coÌ„stitucioÌ„ prouinciall made by the reuerente father in god Robertte whyncelse late archebisshope of Cauntorbury where it is sayd declared that silua cedua is or euery kynde of trees that haue beyng in that that they shuld be curte or that be able to be cutte wherof we wyll sayth he that the possessoure of the sayd woodes be coÌ„pelled by the censures of the churche to pay to the parysshe churche / or mother church the tythe as a reall or prediall tythe so by vertue of that constitucion prouinciall a prediall tythe muste be payde of suche trees as haue no frute / for I wolde well agre that the sayd constitucion prouinciall stretched nat to trees that bere frutes though the wordes be general for all trees as before appereth ¶ Student I take nat the reason why a prediall tythe shulde nat be payde for trees that bere frute to be bycause two prediall tythes can nat be payde for one thynge / for whan the tythe is payd of lambes yet shall tythe be payde of wolle of the same shepe / for it is payde for a nother increase / so it might be sayd that the frut of a tree is one encrease the fellyng a nother / but I take the cause to be for the two causes byfore reherced also for as moche as the fellynge is nat properly an increase of the trees but a distruccioÌ„ of the trees as it is sayd before And ferther I wolde here thy mynde vpon the said coÌ„stitucion prouincial whiche wyll that tythe shulde be payde for trees by the possessoures of the woode that if the possessour sell the woode for C. li. gyue the byer a certayne tyme to sell it in / what tythe shall the possessour paye as longe as the woode standeth ¶ Doctoure I thynke none for the prediall tythe cometh nat tyl the woode be felled a personall tythe he can nat pay / no more than if a man plucke downe his how se and selleth it / or if he sell all his lande / in whiche cases I agre well he shall paye no tythe neyther prediall nor personall ¶ Student And than I put case that the byer selleth the woode agayne as it is staÌ„dyng vpon the grouÌ„de to a nother for .cc. li. what tythe shal be payde than ¶ Doctoure Than the fyrste byer shall pay tythe of the surplusage that he taketh ouer the C. li. that he payde as a personall tythe ¶ Student And than if the seconde byer after that cut it downe sell it whan it is cut downe for lesse than he payd / what tythe shall than be payde ¶ Doctour ThaÌ„ shall he that felleth them paythe tythe for the trees as a predial tythe ¶ Student I can nat se howe that ca be for he nether hath the trees that the predial tithe shulde be payd for if any oughte to be payde / nor he is nat possessour of the grouÌ„d where the trees grow therfore if any predial tythe shuld be payd it shuld be payd eyther by the fyrst possessour by reason of the wordes of the sayd constitucioÌ„ prouincial whiche be that the tythe shal be payd by the possessoure of the wood / or by the last byer bycause he hath the trees that shuld be tythed by the fyrst possessour the tythe can nat be payde as a pÌ„dial for he cut nat theÌ„ downe ne they were nat cut downe vpon his bargayne / by the laste byer it caÌ„ nat be payde neyther as a predial tythe for the sayd constitucion sayth that the possessours of the wodes shuld be coÌ„pelled to pay it And therfore I suppose that the trouth is that in that case no â—â—the shal be payde / for as to the last seller he shall pay no personall tithe for he gayned nothyng as it appereth before / no pÌ„diall tithe shal be payd / for it shuld be agaynst the sayd prescripcioÌ„ / also the cuttinge downe is the distruccion of trees nat theyr pÌ„seruacion as is sayd before ¶ Doctour ThaÌ„ takest thou the sayd constitucion to be of smale effect as it semeth ¶ StudeÌ„t I take it to be of this effect that of woode aboue .xx. yere it bindeth nat bycause it is coÌ„trari to the comoÌ„ law to the sayd prescripcion that staÌ„deth good in the comoÌ„ law / but of wood vnder .xx. yere wherof tithe hath beÌ„ accustomed to be payd the coÌ„stitucioÌ„ is nat agaynst the sayd pÌ„scripcion bycause pateÌ„g of tythe vnder .xx. yere is nat prohibit but suffred by the sayd statute howe be it some say that by the very rigour of the comon lawe tithes shuld nat be payd for wood vnder .xx. yere no more than for aboue .xx. yere that a ê“hibicioÌ„ in that case lieth by the comon lawe /