no more there is of diuersite other estopelles / which were to loÌ„ge to reherce now And yet the partie that may take auantage of such an estopel by the lawe / is bouÌ„de in coÌ„science to forsake that auantage specially if he were so estopped by ignorance / and nat by his owne knowlege assent for thoughe the lawe iÌ„ suche cases gyueth no remedye to hym that is estopped yet the law iugeth nat that the other hath ryght vnto the thynge that is in variaunce bytwyxte them ¶ Also it is vnderstaÌ„de that the lawe is to be lefte for coÌ„scieÌ„ce / where a thynge is tryed fouÌ„de by verdit agaynst the trouth / for in the comon law the iugement muste be gyuen accordynge as it is pleaded tried lyke as it is iÌ„ other lawes / that the iugement muste be gyuen accordynge to that / that is pleaded proued ¶ Also it is vnderstande that the lawe is to be lefte for coÌ„science / where the cause of the lawe doth cease for whan the cause of the lawe dothe cease / the lawe also dothe cease in conscience / as apperyth by this case here after folowynge ☞ Addicion ⧠A man maketh a lease for terme of lyfe / after a stranger doth waste / wherfore the lesse briÌ„geth an accion of TrnÌ„s hath iugemeÌ„t to recouer damagê hauyng regarde to the treble damagê that he shal yelde to hym iÌ„ the reuercion And aft he in the reuercion byfore accion of waste sued dyeth so that the accion of waste is therby extincted / then the tenant for terme of lyfe though he may sue execucion of the sayd iugemeÌ„t by the lawe yet he may nat do it by conscience for in conscience he maye take no more then he is hurted by the sayd trespasse / bycause he is nat chargyd ouer with the treble damages to his lessoure ¶ Also it is vnderstande where a lawe is grounded vpon a presumpcion / for if the presumpcion be vntrue / then the lawe is nat to be holden in coÌ„science And nowe I haue shewed the somwhat howe that question that is to say where the lawe shal be ruled after coÌ„science I pray the shewe me whether there be nat lyke diuersities in other lawes bytwyxte lawe conscience ¶ Docto r Yes verely very many wherof thou haste recyted one byfore / where a thynge that is vntrue is pleaded ê“ued / in whiche case iugement muste be gyuen accordynge as well in the lawe Cyuile as in the lawe Canon And another case is that if the heyre make nat his inuentory / he shal be bounde after the lawe Cyuile to all the dettes though the goodes amount nat to so moche And the lawe Canon is nat agaynste that lawe / and yet in conscience the heyre whiche in the lawes of Englande is called an executour is nat in that case charged to the dettes / but accordiÌ„ge to the value of the goodes And nowe I pray the shewe me some cases where coÌ„scieÌ„ce shal be ruled after the lawe ¶ Stud. I wyll with good wyll shewe the somwhat as me thynketh therin ⧠Here foloweth dyuers cases where conscience is to be orderyd after the lawe The .xx. Chapitre STudent The eldest sone shall haue enioy his father landes at the comon lawe in conscience / as he shall in the lawe And in Burghenglysshe the yonger sone shall enioy the inheritaunce / that in conscience And in Gauelkynde all the soÌ„nes shall inherite the lande togyther as doughters at the comon lawe and that in coÌ„scieÌ„ce And there can be none other cause assigned why coÌ„science in the fyrste case is with the eldest brother / in the seconde with the yonger brother / and iÌ„ the thyrde case with all the bretherne But bycause the lawe of Englande by reason of diuers customes dothe somtyme gyue the lande hollye to the eldest sone / somtyme to the yongest / and somtyme to all ¶ Also if a man of his mere mocion make a feffemeÌ„t of two acres of lande lyenge in two seuerall shyres / maketh lyuerey of season in the one acre in the name of both In this case the feffe hath ryght but only to that acre wherof lyuerey of season was made / bycause he hath no tytle by the law but if bothe acres had ben in one shyre he had had good ryght to both And in these cases the diuersitie of the lawe makyth the diuersitie of conscience ¶ Also if a man of his mere mocion make a feffement of a maner sayth nat to haue to holde cÌ„ with the appurtynances / in that case the feffe hath right to the demesne landes to the rentes / if there be atturnament to the comon parteynynge to the maner / but he hath nother ryght to the aduowsons appendaunt if any be / nor to the vylleins regardant but if this terme with thapurtynauÌ„ces had ben in the dede / the feffe had had ryght in coÌ„science aswell to the aduowsons vylleins / as to the residue of the maner but if the kynge of his mere mocion gyue a maner with the appurtynaunces / yet the donee hath neyther ryght in lawe nor coÌ„science to the aduowsons nor vylleins And the diuersitie of the lawe in these cases maketh the diuersitie of conscience ¶ Also if a man make a lease for terme of yeres yeldynge to hym to his heyres a certayne rent vpon condicion that if the rent be behynde by .xl. dayes cÌ„ that then it shal be lawful to the lessour his heyres to rentre And after the rent is behynde the lessour askyth the rent accordynge to the lawe it is nat payd / the lessour dyeth his heyre entreth In this case his entre is lawfull bothe in lawe and conscience but if the lessoure had dyed byfore he had demauÌ„dyd the rent / and his heyre demauÌ„de the rent / bycause it is nat payde he rentreth / in that case his rentre is nat lawfull nother in lawe nor in conscience ¶ Also if the tenaunt in dower sowe her lande and dye byfore her corne be rype / that corne in conscience belongeth to her executours / nat to hym in the reuercion / but otherwyse it is in coÌ„science of grasse frutes And the diuersitie of the lawe makyth ther also the diuersitie in coÌ„science ¶ Also if a man seased of landes in his demesne as of fee / byquethyth the same by his last wyll to another and to his heyres and dyeth In thê case the heyre nat with staÌ„dynge the wyll hath ryght to the lande in conscience And the reason is bycause the lawe iugeth that wyll to be voyde and as it is voyde in the lawe / so it is voyde in conscience ¶ Also if a man graunte a rente for terme of lyfe and make a lease of lande to the same grauÌ„te for terme of lyfe / and the tenaunte alyeneth both in fee. In this case he in the reuercion hath good tytle to the lande /
the inheritaunce of many in this realme as well of spirituall as temporall / they be withoute payne in the lawe of the realme excepte suche recoueries as by the commoÌ„ course of the law be voydable in the lawe by reason of some vse / or of some other speciall matter / but what payne that is I wyll nat temerously iuge / but committe it to the goodnes of our lorde whose iugementes be very depe and profounde / nor I wyll nat fully afferme that they that haue landes by suche recoueries oughte to be compelled to restitucion / but this semeth to me to be good councell that euery maÌ„ hereafter holde that is certayne leue that is vncertaiÌ„ that is that he kepe hym self from suche recoueries and than he shal be fre from all sertrulousnes of conscience / in that behalf ¶ Student It semeth that in this question thou ponderest greatly the sayde statute of WestmÌ„ the .ii. that thoughe it be but onely a lawe made by maÌ„ / that yet for as moche as it is nat agaynst the lawe of reason / nor the lawe of god / thou thynkest that it muste be holden in conscience / and ouer that as it semeth thou arte somwhat in double whether those recoueries be any barre to the heyre in the tayle by the lawe of the realme onles that he haue in value in dede vpon the voucher / that thou wilt thereupoÌ„ take a respite or thou shewe thy full mynde therein / in lykewyse thou thiÌ„kest as I take it that those recoueries can nat be brought in to a custome but that the longer that they be suffred to continue if they be nat good by the lawe the greater is the offence agaynst god And therfore thou ponderest litle that custome / but yet thou agreest that it is good to spare the multitude of them that be paste leste a subuercion of the inheritaunce of many of thê realme might folowe great stryfe variaunce also if they shulde be adnulled for the tyme past except there be any other especiall cause to auoyde them by the lawe as thou haste touched in thy laste reason / but thou thynkest that it were good that from hensforth suche recoueryes shuld be clerely prohibit nat be suffred to be had in vse as they haue ben byfore thou couÌ„ceyllest all men therfore to refrayne them selfe from suche recoueries hereafter ¶ Doctour Thou takest well that I haue sayde accordynge as I haue mente it ¶ StudeÌ„t Now I pray the syth I haue harde thy question of these recoueries accordynge to thy desyre that thou woldest answere me to some perticuler questioÌ„s coÌ„cernynge tayled landes wherof thou hast at this tyme gyuen vs occasion to speke ¶ Doctoure shewe me those questions I wyll shewe the my mynde therein with good wyll ∴ ☞ The fyrste question of the Student concernynge tayled landes The .xxvii. Chapitre Student If a dissesour make a gyfte in the tayle to Iohan at style IohaÌ„ at style for the redemyng of the title of the dissesye agreeth with hym that he shall haue a certayne rent out of the same lande to him to his heyres / for the suertye of that rent it is diuised that the dissesye shall release his right in the lande cÌ„ that suche a recouery as we haue spokeÌ„ of byfore shal be had agaynste the sayd Iohan at style to the vse of the payment of the sayde rente and of the former tayle whether standeth that recouery well with coÌ„science or nat as thou thynkest ¶ Docto r I suppose it dothe for it is made for the strength and suertye of the tayle whiche the dissesye might haue clerely defeated auoyded if he wolde / therefore as I thinke if the sayde Iohan at style had graunted to the dissesye onely by his dede a certayne rente for the releasinge of his title that graunte shulde haue bounde the heyres in the tayle for euer And than if the dissesye for his more suertye wyll haue suche a recouerie a byfore appereth it semeth that that recouerye standeth with good conscience ¶ Student It semeth that thy oppynion is righte good in this matter And so it appereth that with a reasonable cause some particuler recoueries maye stande bothe with lawe and coÌ„science to barre a tayle ☞ The seconde question of the Student concernynge tayled landes ⸫ The .xxviii. Chapitre STudent I a tenaunt in tayle suffre a recouery agaynste hym of the landes entayled to the entent that the recouerers shall stande seased therof to the vse of a certayne woman whome he enteÌ„deth to take to his wyfe / for terme of her lyfe / and after to the vse of the fyrste tayle and after he maryeth the same woman / whether standeth that recouery with conscience though other recoueries vpon bargaynes and sales dyd nat ¶ Doctoure It semeth yes / for though the statute be / that they to whome the tenementes be so gyueÌ„ shulde nat haue power to aliene / but that the landes after theyr deth shulde remayne to theyr issues or reuert to the donours if the issues fayled yet if he to whome the landes were so gyuen take a wyfe dyeth seased without heyre of his body / and the donour entre the woman shall recouer agaynste hym the thyrde parte to holde in the name of her dowre for terme of her lyfe though the tayle be determined / the same law is of tenaÌ„t by the curtesy that is to say of hiÌ„ that happeneth to marye one that is an eÌ„heritrix of the laÌ„de entayled they haue issue the wyfe dyeth the issue dyeth / he shal holde the laÌ„des for terme of his lyfe as tenaÌ„t by the curtesye / natwithstanding the wordes of the statute whiche say that after the deth of the tenaunt in tayle without issue the landes shall reuert to the donour / I thynke the cause is bycause the intente of that statute shall nat be taken that it inteÌ„ded to put awaye suche titles as the lawe shulde gyue by reason of the tayle / so it semeth that a lyke enteÌ„t of the statute shal be taken for ioyntours / for els the statute might be somtyme a lettynge of matrymony / it is nat lyke that the statute intended so / therfore it semeth that by the onely deed of the tenaunt in tayle a ioyntour may be made by the intent of the statute / thoughe the wordes of the statute serue nat expressely for it / for many tymes the intent of the letter shal be taken nat the bare letter / as it appereth in the same statute where it is sayd that he to whome the landes be gyuen shall haue no power to alien / yet the same statute is construed that neyther he nor his heyres of his body shal haue no power to alyen / so me thynketh that suche an intent shal be taken here for sauyng of ioyntours ¶ Student trouth it is that somtyme the intent
of a statute shal be taken ferther than the expresse letter stretcheth / but yet there may no entent be taken agaynst the expresse wordes of the statute / for that shulde be rather an interpretacion of the statute than an exposicioÌ„ it can nat be reasonably taken / but that the inteÌ„t of the makers of the statute was that the lande shuld remayne continually in the heyres of the tayle as longe as the tayle endureth / there can no ioyntour be made neyther by dede nor be recouerye / but that the tayle must therby be discontinued / therfore this case of ioyntoure is not lyke to the sayd cases of tenant in dower or tenauÌ„t by the courtesie / for the title of dowrye of tenaunty by the curtesye groweth moste specially by the continuauÌ„ce of the possessioÌ„ in the heyres of the tayle but it is nat so of ioyntoures / therfore by the onely dede of the tenaunte in tayle / there maye no Ioyntour be lawfully made agaynste the expresse wordes of the statute And if there be any made by waye of recouerye / than it semeth that it muste be put vnder the same rewle as other recoueryes muste be of landes intayled ☞ The thyrde question of the Student / concernynge tayled landes ⸫ The .xxix. Chapitre STudent If IohnÌ„ at noke beyng seased of landes in fee of his mere mocioÌ„ make a feoffement of a certayne landes to the inteÌ„t that the feoffes shall therof make a gyfte to the sayde Iohan at noke to haue to him and to his heyres of his body and they make the gyft accordinge And after the sayd Iohan at noke falleth in to dette / wherefore he is taken put in pryson / and therupon for payment of his dettes he selleth the same lande / and for suertye of the byer he suffereth a recouerie to be had agaynst hym in suche maner as byfore appereth / whether standeth that recouerye with conscience or nat ¶ Docto r I wolde here make a litell digression to aske the another question or that I made answere to thyne that is to say to fele thy mynde howe that lawe by the whiche the body of the dettoure shal be taken caste in to pryson there to remayne tyll he haue payde the dette maye stande with conscieÌ„ce specially if the haue nothynge to paye it with / for as it semeth if he wyll relinquisshe his goodes / whiche in some lawes is called in laten Cedere bonis that he shall nat be inprysoned / and that is to vnderstande moste specially if he be fallen in to pouertye and nat through his owne defaute ¶ Student There is no lawe in this realme that the defendaunt may in any case Cedere bonê / and as me semeth if there were suche a lawe it shulde nat be indifferent / for as to the knowlege of hym that the money is owynge to the dettoure mighte Cedere bonis / that is to saye relinquisshe his goodes / and yet retayne to him selfe secretely greate ryches And therefore that lawe in suche case semeth more indiffereÌ„t and rightouse that committeth suche a dettour to the conscieÌ„ce of the plaiÌ„tyfe to whome the money is owynge thaÌ„ that coÌ„mitteth hym to the coÌ„science of hiÌ„ that is the dettour / for in the dettour some defaute maye be assigned / but in hym to whome the money is owynge maye be assinged no defaut ¶ Doctour But if he to whome the dette is owinge / knoweth that the dettoure hath nothyng to pay the det with / that he is falleÌ„ in to that pouertie by some casualtie And nat throughe his owne defaute / doth the lawe of Englande holde that he maye with good conscience kepe the dettour styll in pryson tyll he be payde ¶ Student nay verily but it thinketh more resonable to appoynt the libertie the iugement of conscience in that case to the dette than to the dettoure / for the cause byfore rehersed And than the dette / if he knowe the trouthe is as thou haste sayde bounde in conscience to lett hym go at lybertie though he be nat compellable thereto by the lawe And therfore admittynge it for this tyme / that the law of EnglaÌ„de in this poynt is good iuste I pray the that thou wilte make answere to my question ¶ Doctour I wyll with good wyll / therfore as me semeth for as moch as it appereth that the sayd gyft was made of the mere liberte fre wyll of the said Iohan at noke / without any recompeÌ„ce that therefore it can nat be otherwyse taken / but that the intent of the sayde IohaÌ„ at noke as well at the tyme of the sayd feoffement / as at the tyme that he receyued agayne the sayd gyfte in the tayle / was that if he happened afterwardes to falle in to pouertie / that he might alyen the sayd laÌ„de to releue hym with / for howe may it be though that a man wyll so moche pondre the welthe of his heyre / that he wyll forget hym selfe / so it semeth that nat onely the sayde recouerye standeth with conscience but also that if he had made onely a feoffement of the lande that that feoffement shulde be in conscience a good barre of the tayle / but if the sayd feoffement and gyfte had ben made in consideracioÌ„ of any recompence of money or for any matrimony or suche other / than the feoffemente of the sayd Iohan at noke shulde nat bynde his heyre / and if he than suffred any recouerye thereof than that recouerye shulde be of lyke effecte as other recoueries whereof we haue treated byfore / the whiche I sayd it was good to fauour rather for theyr multitude than for the conscience the same lawe is that if the sonne and the heyre of the sayd Iohan at noke in case that the sayde gyfte was made without recompence alyen the lande for pouertye after the deth of his father that recouerye byndeth nat but as other recoueries do / for it caÌ„ nat be thought that the enteÌ„t of the father was that any of his heyres in tayle shulde for any necessite dissherite all other heyres in tayle that shuld come after hym but for hiÌ„ selfe me thinketh it is resonable to iuge in suche maner as I haue sayd byfore ¶ Student And though the intent of the sayde Iohan at noke whan he made the sayde feoffement / and whan he toke agayne the sayde gyfte in tayle were that if he fell in nede that he mighte alien yet I suppose that he maye nat alien though percase for the more suerte he declared his intent to be suche vpon the lyueries of season for that intente was contrary to the gyfte that he frelye toke vpon hym and whan any intent or condicion is declared or reserued agaynst the state that any maÌ„ maketh or accepteth than suche an inteÌ„t or condicion is voyde by the lawe as by a case that hereafter foloweth wyll appere / that is to
thynketh iÌ„ this case that the feoffe oughte in coÌ„scyence to paye the damages fro the deth of her husband seinge that immediately after his deth she ought too haue her dower ¶ Student Thoughe she oughte too be endowed immediately after the dethe of her husbande / yet she can lay no defaute in the feoffe tyll she demaunde her dower vppon the grounde / and that the tenaunte be not there too assigne it / or if he be there that he wyl not assigne it / for he that hath the possessyon of lande whervnto any womaÌ„ hath tytle of dower hath good auctorytye as agaynste her to take the ê“fytes tyll she requyre her dower for euery womaÌ„ that demaundeth dower affermeth the possessyon of the tenaunt as agaynste her and therfore all thoughe she recouer it by accyoÌ„ she leueth the reuercyon alwey in him agaynst whome she recouereth thoughe he be a dysseasour bryngeth nat the reuercyon by her recouery to hym that hath righte as other tenauntes for terme of lyfe do And for this reason it is that the tenaunte in a wrytte of dower where the husbande dyed seased if he appere the fyrst day may saye to excuse hymselfe of damages that he is and all tymes hathe ben redy to yelde dower if it had ben demaunded / so he shall nat be receyued to do iÌ„ a wryt ofcosynage nether iÌ„ the case that thou remembrest aboue / for in bothe cases the renauntes be supposed by the wrytte to be wronge doers / but it is nat so in this case / and so me thynketh it clere that the feoffe iÌ„ this case shall nether be bounde by lawe nor conscience to yelde damages for the tyme that passed byfore the requeste / but for the tyme after the requeste is greater doute / howe be it some thynketh hym nat there bounde to yelde damages bycause his tytle is good as is sayd byfore and that it is her defaute that she brought nat her accyon ¶ Doctour As vnto the tyme byfore the requeste I holde me contente with thyne opinion so that he assigne the dower whan he is required / but whan he refuseth to assigne it than I thynke hym bounde in conscience to yelde damages for bothe tymes though he shall none recouer by the lawe And fyrste as for the tyme after the refusell it appereth euidentely that whan he denied to assigne her dower he dyd agaynste conscieÌ„ce / for he dyd nat that of ryght to haue done by the lawe / ne as he wolde shulde haue ben done to him / and so after the request he holdeth her dower fro her wrongfully ought in conscience to yelde damages therfore And as to the defaute that thou assignest in her that she toke nat her accioÌ„ / that forceth lytel for accioÌ„s nede nat / but where the partie wyll nat do that he ought to do of ryght And for that he ought of right to haue done and dyd it nat / he can take none aduauntage / and than as to the damages byfore the request me thynketh hym also bounden to paye theÌ„ / for whan he was requyred to assygne dower and refused It appereth that he neuer inteÌ„ded to yelde dower fro the begynnyng / so he is a wrong doer in his owne coÌ„science / and more ouer if the husbande dye seased the lawe is such that if the tenaunt refuse to assigne dower whan he is requyred wherfore the womaÌ„ bryngeth a wrytte of dower agaynst him / that in that case the woman shall recouer damages as wel for the tyme byfore the request as after / and yet he ought nat iÌ„ that case after thyne opinioÌ„ to haue yelded any maner of damages if he had ben redy to assigne dower whan it was demaunded / and so me thynketh here ¶ Studente The cause in that case that thou haste put is for that the statute is general that the demauÌ„dauÌ„t shall recouer damages where the husbande dyed seased / and that statute hathe ben alwaye construed that where the tenaunt maye nat saye that he is and hathe ben alway redy to yelde dower cÌ„ that the demaundaunt shall recouer damages fro the dethe of her husbande But in this case there is no law of the realme that helpeth for the damaundauÌ„t neyther comon lawe nor statut / forthermore though it myght be proued by his refusell that he neuer entended fro the deth of the husbande to assigne her dower yet that proueth nat / but that he had good ryght to take the ê“fites of her thyrde parte for the tyme as well as he had of his owne two partes tyl request be made as is afore sayd / and so me thynketh that nat withstandyng the denyer he is nat bounde to yelde damagê in this case but fro the tyme of the request / and nat for the tyme byfore ¶ Doctoure For this tyme I am content with thy reason ⧠The .xii. question of the student The .xiiii. Chapitre STudent A maÌ„ seased of certayne landê knowyng that an other hath good ryght and tytle to them leuieth a fyne with proclamacion to the entent he wolde extyncte the ryght of the other man / the other man makethe no clayme within the .v. yeres / whether may he that leuyed the fyne holde the lande in coÌ„scieÌ„ce as he may do by the lawe ¶ Doctoure By this question it semeth that thou doste agre that if he that leuyeth the fyne had no knowlege of the other mannes ryght that his ryght shulde than be extyncted by the fyne in conscience ¶ Student ye verely / for thou dydest shewe a reasoneble cause why it shulde be so in oure fyrste dialogue in latyne the .xxiiii. Chapitre as there appereth But if he that leuyeth a fyne and that wolde extyncte the ryghte of an other / knowynge that the other hathe more ryghte than he than I doute therin for I take thyne opinion in our fyrste dialogue to be vnderstaÌ„de in conscience where he that wolde extincte former ryghtes by suche a fyne with proclamacioÌ„ knoweth nat of any former tytle but for his more surety if any suche former ryght be he taketh the remedy that is ordeyned by the lawe ¶ Doctoure Whether dost thou meane in this case that thou puttest now that he that hath right knoweth of the fyne and wylfully lettethe the .v. yere pas without claime or that he knoweth nat any thynge of the fyne ¶ Student I pray the let me knowe thyne opinion in bothe cases and whether thou thinke that he that hathe ryght be barred in eyther of the cases by conscience as he is by the law or nat ¶ Doctour I wyll with good wyl here after shewe me thy mynde therin / but at this tyme I praye the gyue a lytell sparyng and procede nowe for this tyme to some other question ⧠The .xiii. question of the student The .xv. Chapitre STudent A man seased of certayne landes in fee hath a doughter whiche is his heyre apparauÌ„te / the doughter taketh a
feoffour was seased iÌ„ that case to his owne vse I shall shewe the afterwarde The seconde case is this A man maketh a feoffement in fee / and it is agreed vpon the feoffement that the feoffe shal pay a yerely reÌ„t to a strauÌ„ger / and if he pay it nat that thaÌ„ the straunger shall entre into the lande In this case I sayd as it appereth in the sayd .xxi. Chapitre / that if the feoffe payed nat the rent that the straunger shuld haue the vse of the lande thoughe he maye nat by the rules of the laÌ„de entre into the laÌ„de / the diuersite bytwene the cases me thynkethe to be this In the fyrste case it apperethe as I haue sayd byfore in the sayde xx Chapitre / that the feoffour myght lawfully reentre by the lawe for nat payment of the rent / and than whaÌ„ he entred accordynge he by that entre auoyded the fyrste lyuery of season / in so moche that after the reentre he was seased of the lande of lyke estate as he was byfore the feoffemente And soo remaynethe noo thynge / whervpon the straunger myght grounde his vse / but onely the bare graunte or entente of the feoffour whaÌ„ he gaue the land to the feoffe vpon condicion that he shulde pay the rente to the straunger / and if nat / that it shulde be lawful to the straunger to entre / for the feoffement is auoyded by the reentre of the feoffour as I haue sayd byfore / and as I sayd in the last Chapitre as I suppose a nude or bare graunte of hym that is seased of lande is nat sufficiente to begynne an vse vpon ¶ Doctour A bare graunte maye chaunge an vse as thou thy selfe agredest in the last Chapitre why thaÌ„ may nat an vse as well begyn vpon a bare graunt ¶ Student Whan an vse is iÌ„ Esse he that hathe the vse may of his mere mocion gyue it awaye if he wyll without recompence as he myght the lande if he had it in possession / but I take it for a grounde that he can nat so begynne an vse without a lyuerey of season or vpon a recompence or bargayne / that there is suche a grouÌ„d in the lawe that it maye nat so begynne it appereth thus / it hath ben alwaye holden for lawe that if a man make a dede of feoffement to a nother and delyuer the dede to hym as his dede / that in that case he to whome the dede is delyuered hath no tytle ne medelynge with the lande afore lyuerey of season be made to hym but only that he may entre and occupie the laÌ„de at the wyll of the feoffour / and there is no boke saythe that the feoffour in that case is seased there of byfore lyuerey to the vse of the feoffe And in lykewyse if a man make a dede of feoffement of two acres of lande that lye in two shyres intendyng to gyue them to the feoffe and maketh lyuerey of season in the one shyre nat in the other / in this case is it comonly holden in bokes that the dede is voyde to that acre where no lyuerey is made excepte it lye within the viewe saue onely that he maye entre occupie at wyl as is aforsayde / and there is no boke that sayth that the feoffe shulde haue the vse of the other acre / for if an vse passed therby than were nat the dede voyde to all intentes / and yet it apperethe by the wordes of the dede that the feoffour gaue the landes to the feoffe / but for lacke of lyuerey of season the gyfte was voyde and some thynketh it is here without lyuerey of seasoÌ„ be made accordynge But in the seconde case of the sayd two cases the feoffe may nat reentre for non payment of the rente / and so the fyrste lyuerey of season continueth and standeth in effecte / and thervpon the fyrste vse maye wel begynne take effecte in the straunger of the lande whaÌ„ the rent is nat payed vnto hym accordynge to the fyrst agrement And so me thynketh that in the fyrst case the vse is determined by cause the lyuerey of season where vpon it coÌ„menced is determined / and that in the seconde case the vse of the lande taketh effecte iÌ„ the straÌ„ger for nat paymeÌ„t of the reÌ„t by the grauÌ„t made at the fyrste lyuerey whiche yet continueth in his effecte / and this my thiÌ„keth is the diuersite bytwene the cases ¶ Doc. yet natwithstandyng the reason that thou haste made me thynketh that if a man seased of landes makethe a gyfte therof by a nude promyse without any lyuerey of season or recompeÌ„ce to hym made and grauÌ„t that he shal be seased to his vse that thoughe that ê“myse be voyde in the lawe that yet neuertheles it muste holde and stande good in conscience and by the lawe of reason / for one rule of the lawe of reason is / that we may do nothynge against the trouthe / and syth the trouthe is that the owner of the grounde hathe graunted that he shall be seased to the vse of the other that grauÌ„t muste nedes stande in effecte or els there is no trouth in the grauntour ¶ Student It is nat agaynste the trouthe of the grauÌ„tour in this case thoughe by that graunte he be nat seased to the vse of the other / but it proueth that he hathe grauÌ„ted / that the lawe wyll nat waraunt hym to graunte / wherfore his graunte is voyde But if the grauntour had gone ferther and sayd that he wolde also suffre the other to take the ê“fites of the landes without let or other interupcion / or that he wolde make hiÌ„ estate in the lande whan he shulde be requyred / than I thynke in those cases he were bouÌ„den in conscience by that rule of the lawe of reason that thou hast remembred to perfourme them / if he intended to be bounden by his ê“myse / for elles he shulde go agaiÌ„st his owne trouthe and agaynste his owne ê“myse But yet it shal make no vse in that case / nor he to whome the promyse is made shall haue no accion in the lawe vppon that promyse althoughe it be nat perfourmed / for it is called in the lawe a nude or a naked promyse And thus me thynkethe that in the fyrste case of the said two cases the graunte is nowe auoyded in the lawe by the reentre of the feoffoure / feoffour / and that the feoffour is nat bounden by his graunte neyther in lawe nor coÌ„science but that iÌ„ the secoÌ„d case he is bouÌ„d / so that the vse passethe froÌ„ hym as I haue sayd byfore ¶ Doctoure I holde me content with thy conceite for this tyme / but I pray the shewe me somwhat more at large what is taken for a nude coÌ„tracte or a naked promyse in the lawes of EnglaÌ„de / and where an accion maye lye there vpon and where nat ¶ Student I wyll with good wyll say as me thynketh
¶ 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
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
better vnderstande that I shall say of conscience / I shall fyrst shewe the what sinderesis is / then what reason is / then what conscience is And howe these thre differ amoÌ„ge them selfe I shall somwhat touche ☞ What sinderesis is The .xiii. Chapitre ⸫ DOctoure Sinderesis is a naturall power of the soule set iÌ„ the hyghest parte therof / mouynge sterrynge it to good / abhorrynge euyll And therefore Sinderesis neuer sinneth nor erreth And this Sinderesis our lorde put in maÌ„ to the intent that the ordre of thynges shulde be obserued For after saiÌ„t Deonise the wysdome of god ioyneth the begynnynge of the secoÌ„de thynges to the laste of the fyrste thynges / for Aungell is of a nature to vnderstande without serchynge of reason to that nature man is ioyned by Sinderesis / the whiche Sinderesis maye nat hollye be extincted nether in man ne yet in dampned soules But neuerthelesse as to the vse exersise therof / it may be let for a tyme eyther through the darkenesse of ignoraunce / or for vndiscrete delectacioÌ„ or for the hardnes of obstinacie Fyrste by the darkenes of ygnoraunce Sinderesis may be lette that it shall nat murmure agaynst euyll / because he beleueth euyll to be good / as it is in heretykes / the whiche when they dye for the wickydnes of theyr Erroure beleue that they dye for the very trouthe of the fayth And by vndiscrete delectacion / Sinderesis is somtyme so ouer layde that remorce or grudge of conscieÌ„ce for the tyme can haue no place For the hardnes of obstinacie sinderesis is also let that it may nat styrre to goodnes as it is in dampned soules that be so obstinate in euyll / that they may neuer be enclined to good And though sinderesis may be sayd to that poynt extincte in dampned soules yet it may nat be sayd that it is fully extincte to all intentes For they alway murmure agaynst the euyll of the payne that they suffre for synne And so it may nat be sayde that it is vniuersally / to all intentes / to all tymes extincte / and this sinderisis is the begynnnynge of all thynges that may be lerned by speculacion or studye / and mynystreth the generall groundes priÌ„ciples therof And also of all thynges that are to be done by man / an example of suche thinges as many be lerned by speculacioÌ„ appereth thus sinderesis sayth that euery hole thynge is more then any one parte of the same thyng / that is a sure grouÌ„de that neuer fayleth And an exaÌ„ple of thynges that are to be done / or nat to be done is where sinderesis saythe no euyll is to be done but that goodnes is to be done folowed / euyll to be fledde and suche other And therfore sinderesis is called by some men the lawe of reason / for it mynistreth the prynciples of the law of reson / the whiche be in euery man by nature in that he is a reasonable creature ☞ Of reason The .xiiii. Chapitre Doctoure whan the fyrste maÌ„ AdaÌ„ was create / he receyued of god a double eye / that is to say An outwarde eye / wherby he might se visible thiges / know his bodely enemyes eschew them And an inwarde eye / that is the eye of the reason / wherby he myght se his spirituel enemyes that fighteth agaynst his soule beware of them And amonge all gyftes that god gaue to man / this gifte of reasan is the moste noblest / for therby maÌ„ precelleth all beestes / is made lyke to the dignitie of Aungelles / discernynge trouth from falsshede / euyll froÌ„ good Wherfore he gothe farre from that effecte that he was made to wheÌ„ he taketh nat hede to the trouth or wheÌ„ he preferreth euyll before good And therfore after Doctourê reason is that power of the soule / that discerueth betwene good euil / betwene good better coÌ„pariÌ„g the one to the other the which also sheweth vtues / loueth god / fleeth vices And reasoÌ„ is called ryghtwyse good for it is conformable to the wyll of god that is the fyrste thynge the fyrste rewle that all thynges muste be rueled by / and reason that is nat rightwyse nor strayte but that is sayd culpable is eyther because she is deceyued with an errour that might be ouercome / or els through her pryde or slouthfulnê she enquereth nat for knowelege of the trouth that ought to be enquered Also reason is deuided in two parties that is to say in to the hygher parte / in to the lower parte The hygher parte hedeth heuenly thynges eternall / and reasoneth by heuenly lawes / or by heuenly resons what is to be done / and what is nat to be done / and what thynges god commaundeth / and what he prohibiteth And thys hygher parte of reason hath no regarde to transitorie thynges / or temporall thynges but that somtyme as it were by maner of councell she bryngeth forthe heuenly reasons / to ordre well temporall thynges The lower parte of reson worketh moste to gouerne well temporall thynges And she grounded her reasons moche vpon lawes of maÌ„ / vpoÌ„ reason of maÌ„ / wherby she concludeth that that is to be done / that is honest expedient to the coÌ„moÌ„ welth / or nat to be done for it is nat expedieÌ„t to the coÌ„mon welth And so that reason wherby I knowe god suche thinges as perteyne to god / belongeth to the hygheste parte of reason And that reason wherby I knowe creatures belongeth to the lower ê‘te of reason And though these two partes / that is to say / the hygher ê‘te the lower parte be won iÌ„ dede essence / yet they differ by reason of theyr working of theyr office as it is of one self eye that somtyme loketh vpwarde / and somtyme downewarde ☞ Of conscience The .xv. Chapitre DOctoure This worde conscieÌ„ce / whiche in latyn is called CoÌ„scieÌ„cia is compowned of this preposicion cum / that is to say in englysshe with / and with this nowne scientia / that is to say in englysshe knowlege / so coÌ„scieÌ„ce is as moche to saye as knowelege of one thynge with another thynge / conscience so takeÌ„ in nothynge els / but an applienge of any scieÌ„ce or knowlege to some particuler acte of maÌ„ And so coÌ„science may somtyme erre somtyme nat erre And of coÌ„science thus taken doctours make many discripcions wherof one doctoure sayth / that conscieÌ„ce is the law of our vnderstaÌ„dyng Another that conscience is an habite of the mynde discernyng betwixt good euyll Another that conscieÌ„ce is the iugemeÌ„t of reason / iugynge on the particuler actes of man / all which sayenges agre in one effecte / that is to say that coÌ„scieÌ„ce is an actuell applyeng of any coÌ„nyng or knowlege to suche thynges as be done wherupoÌ„ it foloweth that vpon the
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
partie Also where there can be had no sufficieÌ„t prouffe / there can be no remedye in the Chauncerye / no more than there maye be in the spirituall courte And bycause thou haste gyuen an occasion to speke of conscience / I wolde gladly here thy oppynion where coÌ„scieÌ„ce shal be ruled after the lawe / and where the lawe shal be ruled after conscieÌ„ce ¶ Doc. And of that mater I wolde lykewyse gladly here thy oppinion / specially in cases grouÌ„dyd vpon the lawes of Enlgande / for I haue nat herde but lytell therof in tyme past / but byfore thou put any cases therof I wolde that thou woldest shewe me how those two questioÌ„s after thy oppinion are to be vnderstande ¶ Of what lawe this question is to be vnderstande that is to say / where coÌ„scieÌ„ce shal be ruled after the lawe The .xix. Chapitre STudent The lawe wherof mencion is made in this question that is to say where conscience shal be ruled by the lawe / is nat as me semeth to be vnderstande only of the lawe of reason / of the lawe of god / but also of the lawe of man that is nat contrary to the lawe of reason nor the lawe of god but that it is supperadded vnto them for the better orderynge of the comon welth / for suche a lawe of man is alwayes to be sette as a rule in coÌ„science so that it is nat lawful for no man to go fro it on the one syde ne on the other / for suche a lawe of man hath nat only the strength of mannes lawe / but also of the lawe of reason / or of the law of god / wherof it is dyriuied / for lawes made by man whiche haue receyued of god power to make lawes be made by god And therfore coÌ„scieÌ„ce muste be ordered by that lawe / as it muste be vpon the lawe of god / vpon the lawe of reason And ferthermore that lawe wherof meÌ„cion is made in the latter ende of the chapitre next byfore that is to saye in that question wherin it is asked where the lawe is to be lefte forsaken for conscience / is nat to be vnderstande of the lawe of reason nor of the lawe of god for tho two lawes maye nat be lefte / nor it is nat to be vnderstande of the lawe of man that is made in particuler cases / that is consonant to the lawe of reason / to the lawe of god / that yet that lawe shuld be lefte for coÌ„science for of suche a lawe made by man coÌ„scieÌ„ce muste be ruled / as is sayd byfore Nor it is nat to be vndepstaÌ„de of a lawe made by man coÌ„maundynge or prohybitynge any thynge to be done that is agaynste the lawe of reason or the lawe of god For if any lawe made by man / bynde any person to any thyng that is agaynste the sayd lawes / it is no lawe / but a corrupcion a manifeste errour Therfore after them that be lerned in the lawes of Englande / the sayde question that is to saye where the lawe is to be lefte for coÌ„science and where nat / is to be vnderstande in diuers maners after diuers rules / as here after shall somwhat be touched ¶ Fyrste many vnlerned persones byleue that it is lawfull for them to do with good conscience / all thynges whiche if they do them / they shall nat be punysshed therfore by the lawe / though the law doth nat warraunt them to do that they do / but onely when it is done doth nat for some reasonable coÌ„sideracion punysshe hym that dothe it / but leuyth it onely to his coÌ„science And therfore many persones do oft tymes that they shulde nat do / kepe as theyr owne that / that in coÌ„scieÌ„ce tey ought to restore / wherof there is in the lawes of Englande this case ¶ If two men haue a woode ioyntly / the one of them selleth the wood kepeth all the mony hollye to hym selfe In this case his felowe shall haue no remedye agaynste hym by the lawe / for as they whan they toke the woode ioyntlye put eche other in truste / were contented to occupy togyther so the lawe sufferyth them to ordre the profittes therof accordynge to the truste that eche of them put other in And yet if one toke all the profittes / he is bounde in coÌ„science to restore the halfe to his felowe for as the lawe gyueth hym ryght onlye to the halfe lande / so it gyueth hym ryght only in coÌ„scieÌ„ce to the halfe ê“fittes And yet neuertheles it can nat be sayd in that case / that the lawe is agaynst coÌ„science / for the lawe neyther wyllyth ne coÌ„maundyth that one shulde take all the ê“fittes / but leuyth it to theyr coÌ„science so that no defaute can be founde in the lawe / but in hym that taketh al the profittes to hym selfe may be assigned defaute / whiche is bounde in conscieÌ„ce to reforme if he wyll saue his soule / though he can nat be compelled therto by the lawe And therfore in this case other lyke / that oppinion which some haue / that they may do with coÌ„science all that they shal nat be punysshed for by the lawe if they do it / is to be lefte for coÌ„scieÌ„ce / but the lawe is nat to be lefte for conscience ☞ Addicion ⧠Also many men thynke that if a man haue laÌ„de that another hath tytle to / if he that hath the ryght shal nat by the accion that is gyuen hym by the law to recouere his ryght by recouere damagê / that then he that hath the lande is also discharged of damages in conscience and that is a great errour in conscience / for though he can nat be compelled to yelde the damagê by no mannes lawe / yet he is compelled therto by the lawe of reason by the lawe of god / wherby we be bounde to do as we wolde be done to / and that we shal nat coueyte our neyghbours good And therfore if tenant in tayle be disseased the disseasour dyeth seased / and then the heyre iÌ„ the tayle bryngeth a Formedon recoueryth the lande / no damages for the lawe gyueth hym no damage in that case yet the tenant by coÌ„scieÌ„ce is bounden to yelde damages to the heyre in tayle fro the dethe of his ancestre Also it is taken by some men / that the lawe muste be lefte for conscience where the lawe dothe nat suffre a man to denye that he hath byfore affermed in court of record / or for that he hath wylfully excluded hym selfe therof for some other cause / as if the doughter that is only heyre to her father wyll sue lyuerey with her suster that is bastarde / in that case she shall nat be after receyued to say that her suster is bastarde in so moche that if her suster take halfe the lande with her / there is no remedy agaynst her by the law And
both iÌ„ lawe coÌ„scieÌ„ce nat to the rent And the reason is bycause the lande by that alienacion is forfeyt by the lawe to hym iÌ„ the reuercion nat the rent ☞ Addicion ⧠Also if landes be gyuen to two men to a woman in fee / after one of the men entermarieth with the woman alieneth the lande dyeth In this case the woman hath ryght but onely to the thyrde parte / but if the man the woman had ben maryed togyther byfore the fyrste feffement / then the woman natwithstaÌ„dyng the alienacion of her husbande shulde haue had ryght in lawe coÌ„science to the one halfe of the lande And so in these two cases coÌ„scieÌ„ce doth folowe the lawe of the realme ¶ Also if a man haue two sones / one byfore spousellys another after spouselles / after the father dyeth seased of certayne landes In that case the yonger sone shall enioye the landes in this realme as heyre to his father bothe in lawe coÌ„scieÌ„ce And the cause is / bycause the sone borne after spousellys / is by the lawe of this realme the very heyre / and the elder sone is a bastard And of these cases and many other lyke in the lawes of Englande maye be formed the Silogisme of coÌ„science / or the true iugemeÌ„t of coÌ„science in this maner Sinderesis ministreth the maior thus Ryghtwysenesse is to be done to euery man vpon whiche maior the lawe of EnglaÌ„de ministreth the minor thus The inheritance bylongeth to the sone borne aft spouselles / nat to the sone borne byfore spouselles / then coÌ„science maketh the coÌ„clusion sayth therfore the inheritaunce is in coÌ„scieÌ„ce to be gyuen to the sone borne after spousellys And so in other cases infinite may be formed by the lawe the Silogisme or the ryght iugemeÌ„t of coÌ„scieÌ„ce wherfore they that be lernyd in the lawe of the realme say that in euery case where any lawe is ordeyned for the disposicion of landes goodes / whiche is nat agaynst the lawe of god / nor yet agaynst the lawe of reason / that that lawe byndeth all them that be vnder the lawe in the courte of coÌ„science / that is to say inwardly iÌ„ his soule And therfore it is somwhat to meruayle that spirituall men haue nat endeuored theÌ„selfe in tyme past to haue more knowlege of the kynges lawes then they haue done / or that they yet do for by the ignoraunce therof they be oft tymes ignorant of that / that shuld ordre them accordynge to ryght iustice / as well coÌ„cernyng theÌ„selfe as other that come to them for coÌ„ceyll And nowe for as moch as I haue answered to thy questions as well as I can I praye the that thou wylte shewe me thy oppinion in diuers cases formed vpon the lawe of Eglande wherin I am in doute / what is to be holden therin in conscience ¶ Doctoure Shewe me thy questions I wyll saye as me thynketh therin ¶ The fyrste question of the student The .xxi. Chapitre STudent If an infaunt that is of the age of .xx. yere and hath reason and wysdome to gouerne hymselfe selleth his lande with the money therof byeth other lande of greater value then the fyrst was taketh the ê“fittes therof / whether maye that infaunte aske his fyrste lande agayne iÌ„ coÌ„scieÌ„ce / as he may by the lawe ¶ Doctour What thynkest thou in that question ¶ Stud Me semeth that for as moche as the lawe of EnglaÌ„de in this article is grounded vpon a presumpcion / that is to saye that infauntes commonly afore they be of the age of .xxi. yeres be nat able to gouerne them selfe / that yet for as moche as that presumpcion fayleth iÌ„ this infauÌ„te that he may nat in this case with conscience aske the lande agayne that he hath solde to his great auauntage as byfore appereth ¶ Doc. Is nat this sale of the infaunte and the feffemeÌ„t made thervpon if any were voydable in the lawe ¶ Stud. Yes verylye ¶ Doc. And if the feffe haue no ryght by the bargayne / nor by the feffement made therupon wherby shulde he then haue ryght therto as thou thynkest ¶ Stud. By conscience as me thynketh for the reason that I haue made byfore ¶ Docto r And vpon what lawe shulde that coÌ„scieÌ„ce be grouÌ„ded that thou spekest of / for it can nat be grouÌ„ded by the lawe of the realme as thou haste sayd thy selfe And me thynketh that it can nat be grounded vpon the lawe of god / nor vpon the lawe of reason for feffemeÌ„tes nor contractes be nat grounded vpon neyther of tho lawes / but vpon the lawe of man ¶ Stud After the lawe of propriete was ordayned / the people myght nat conueniently lyue togyther without contractes / therfore it semeth that coÌ„tractê be grouÌ„ded vpon the lawe of reason / or at the leste vpoÌ„ the lawe that is called Ius gentium ¶ Doct. Though contractes be grouÌ„ded vpon that law that is called Ius gentiuÌ„ / bycause they be so necessarye so generall amonge all people / yet that proueth nat that coÌ„tractes be grouÌ„ded vpon the lawe of reason for thoughe that lawe called Ius gentium be moche necessarye for the people yet it may be chaunged And therfore if it were ordayned by statute that there shulde be no sale of lande / ne no coÌ„tracte of goodes And if any were that it shulde be voyde / so that euery man shuld coÌ„tynewe styll seased of his landes possessed of his goodes / the statute were good And then if a man agaynst that statute solde his lande for a suÌ„me of money / yet the seller myghte lawfully retayne his lande accordynge to the statute And then he were bouÌ„de to no more / but to repaye the money that he receyued with resonable expeÌ„ces in that behalfe / and so iÌ„ lykewyse me thynketh that in this case the infant may with good coÌ„scieÌ„ce reentre in to his fyrst lande / bycause the coÌ„tracte after the maximes of the law of the realme is voyde / for as I haue herde the maximes of the lawe be of as greate strengthe in the lawe as statutes And so me thynketh that in this case the infaunt is bouÌ„de to no more / but only to repay the money to hym that he solde his laÌ„de vnto / with suche reasonable costes charges as he hath sustayned by reason of the same But if a man sell his lande by a sufficieÌ„t lawful coÌ„tracte thoughe there lacketh lyuerye of season or such other solempnities of the lawe yet the seller is bounde in conscience to performe the contracte / but in this case the contracte is insufficient / so me thynketh great diuersitie bytwyxt the cases ¶ Stud. For this tyme I holde me contented with thy opoinion ¶ The seconde question of the student The .xxii. Chapitre STudent If a man that hath landes for terme of lyfe be impanelled vpon an inquest / therupon leseth yssues
dyeth / where maye tho yssues be leuied vpon hym in the reuercion in coÌ„science as they may be by the lawe ¶ Doct. If they maye be leuied by the lawe / what is the cause why thou doost doute whether they may be leuied by conscience StudeÌ„t For there is a maxime in the lawes of Englande / that where two tytles ronne togyther / the eldeste tytle shal be preferred And in this case the tytle of hym in the reuercion is byfore the tytle of the forfetour of the yssues And therfore I doute somwhat whether they maye be lawfully leuyed ¶ Doct. By that reason it symeth thou arte in doute what the lawe is in thê case / but that must necessarely be knowen / for els it where in vayne to argue what conscience wyll therin ¶ Stud. it is certayne that the lawe is suche / so it is lyke wyse if the husbande forfet yssues dye / tho yssues shal be leuyed on the landes of the wyfe ¶ Doct. And if the lawe be such it symeth that coÌ„science is so in lykewyse / forsyth it is the lawe that for execucion of Iustice euery man shal be iÌ„panelled when nede requyreth it semeth reasonable / that if he wyll nat appere that he shulde haue some punysshemeÌ„t for his nat apperauÌ„ce for els the lawe shulde be clerely frustrate in that poynt And that payne as I haue herde is that he shal lese yssues to the kyng for his nat apperauÌ„ce / wherfore it semeth nat inconuenieÌ„t nor agaynste conscience though the lawe be that tho yssues shal be leuyed of hym iÌ„ the reuercion / for that coÌ„dicion was secretlye vnderstande in the lawe to passe with the lease whaÌ„ the lease was made And therfore it is for the lessour to beware and to preuent that daunger at the makynge of the lease / or els it shal be aiuged his owne defaute And than this pertyculer maxyme wherby suche yssues shall be leuyed vpon hym in the reuercyon is a pertyculer excepcyon in the lawe of Englande froÌ„ that generall maxyme that thou haste remeÌ„bred byfore that is to say that where two tytles ronne togyther / that the eldest tytle shal be preferred / so in this case that generall maxime in this poynt shall holde no place / nother in lawe nor in coÌ„science / for by this perticuler maxime the strengthe of that generall maxime is restreyned to euery intent / that is to saye / as well in lawe as in coÌ„science ¶ The thyrde question of the student The .xxiii. Chapitre STudeÌ„t If a tenant for terme of lyfe / or for terme of yeres do waste wherby they be bouÌ„de by the lawe to yelde to hym in the reuercion treble damagê And shall also forfet the place wasted / whether is he also bounde in conscience to pay tho damages / to restore the place wasted immediatly after the waste done / as he is the single damages / or that he is nat bounde therto tyll the treble damages the place wasted be recouered in the kynges courte ¶ Doctour Byfore iugemeÌ„t gyuen of the treble damagê and of the place wasted he is nat bounde in conscience to pay them For it is vncertayne what he shulde pay / but it suffiseth that he be redy tyl iugemeÌ„t be gyuen to yelde damages accordynge to the value of the waste / but after the iugement gyuen / he is bounden in coÌ„science to yelde the treble damages / also the place wasted And the same lawe is in all statutê penall / that is to saye / that no man is bouÌ„de in conscience to pay the penaltye tyll it be recouered by the lawe ¶ Stud. Whether maye he that hath offended agaynst suche a statute penal defende the accion hyndre the iugement to the intent he wolde nat paye the penaltie / but onely the single damagê ¶ Doctour If the accion be taken ryghtwysely accordyng to the statute and vpon a iuste cause / the defendant maye in no wyse defende the accion / onles he haue a true dylatorie mater to plede whiche shuld be hurtful to hym if he pleded it nat / though he be nat bounde to paye the penaltie tyll it be recouered ¶ The fourth question of the studeÌ„t The .xxiiii. chapitre STudent If a man infeffe another in certayne lande vpon condicion that if he infeffe any other that it shal be lawfull for the feffour and his heyres to reentre cÌ„ whether is this coÌ„dicion good in coÌ„scieÌ„ce though it be voyde in the lawe ¶ Doctour What is the cause why this condicion is voyde in the lawe ¶ Stud. The cause is this / by the lawe it is incideÌ„t to euery state of fee simple / that he that hath that estate may lawfully by the lawe by the gyfte of the feffoure make a feffement therof And than whan the feffoure restrayneth hym after that he shall make no feffement to no man agaynst his owne former graunt / also agaynste the puritie of the state of a fee simple / the lawe iugeth the condicion to be voyde / but if the condicion had ben that he shulde nat haue infeffed suche a man / or such a man that condicion had ben good / for yet he myght infeffe other ¶ Doctour though the sayde coÌ„dicion be agaynst the effecte of the stande of a fee simple also agaynste the lawe Neuerthelesse it is nat agaynst the intente that the parties agreed vpon and that at the tyme of the lyuerey And for as moche as the intent of the partie was that if the feffe infeffed any man of the lande / that the the feffour shuld entre / to that intent the feffe toke the estate after breke the intent it semeth that the lande in coÌ„science shulde returne to the feffour ¶ Stud. the intent of the parties in the lawes of Englande is voyde in many cases / that is to say if it be nat ordered accordyng to the lawe As if a man of his mere mocion without any recompence intendynge to gyue landes to another to his heyres make a dede vnto hym / wherby he gyueth hym the landes to haue to holde to hym for euer intendyng that by that worde for euer the feffe shuld haue the lande to hym to his heyres / in this case his intent is voyde / and the other shal haue the lande onely for terme of lyfe Also if a man gyue landes to another to his heyres for terme of .xx. yeres inteÌ„dyng that if the lessee dye within the terme / that than his heyres shulde enioye the lande durynge the terme In this case his inteÌ„t is voyde / for by the lawe of the realme all chatellys reall and personall shall go to the executoures / and nat to the heyre Also if a man gyue landes to a man to his wyfe / and to the thyrde person intendynge that euery of them shulde take the thyrde parte of the lande as thre common persons shuld his intent is voyde / for
the 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
be but fewe ī this real me that haue landes of any notable value but that they or theyr aūcestours / or some other by whome they clayme haue had parte therof by such recoueries / In so moche that lordes spirituall tēporal knyghtes / squyres ryche men / poore / monasteries / collegies / and hospitalles haue suche landes / for suche recoueries haue ben vsed of longe tyme / who may thynke therfore without great heuines that so many men shulde be bounde to restitucion / and that yet as thou sayste / no man disposeth hym to make restitucion And so I am in maner perplexed and wot nat what to saye in this case / but that yet I truste that ignoraunce maye excuse many persons in this behalfe ¶ Doctoure Ignoraunce of the dede maye excuse / but ignoraunce of the lawe excuseth nat but it be inuincible / that is to saye that they haue done that ī them is to knowe the trouthe as to councell with lerned men and to aske thē what the lawe is in that behalfe and if they answere them that they may do this or that lawfully / than they be thereby excused in conscience / but yet in mannes lawes they be nat thereby discharged / but they that haue taken vpon them to haue knowlege of the law be nat excused by ignoraunce of the lawe / ne no more are they that haue a wilfull ignoraunce that wolde rather be ignoraunt than to know the trouth And therfore they will nat dispose them to aske any councell in it / if it be of a thynge that is agaynste the lawe of god / or the lawe of reason / no man shal be excused by ignoraunce / and to there be but fewe that be excused by ignoraūce ¶ Studēt what than shall we condempne so many so no table men ¶ Doctoure We shall nat condempne them / but we shall shewe them theyr peryll ¶ Student yet I truste that theyr daunger is nat so greate that they shulde be bounde to restitucion For Iohā Gerson sayth in the sayd boke called Devintate ecclesiastica consideracione secunda / quod cōmunie error facitius That is to saye a common errour maketh a right / of whiche wordes as it semeth some trust maye be had / that though it were fully admitted that the sayd recoueries were fyrst had vpon an vnlawfull grounde and agaynste the good ordre of conscience that yet neuertheles for as moche as they haue ben vsed of longe tyme / so that they haue ben taken of diuers men that haue ben righte well lerned in maner as for a lawe / that the byers partly be excused so that they be nat bounde to restituciō And moreouer it is certeyn that that statute of westm̄ the. 2 nor none other statute made by mā cā nat be of greater vertue or strength / thā was the bonde of matrimonie that was ordayned by god And though that bonde of matrimoni was indissoluble / yet neuertheles Moyses suffred a byll of refusell to the Iewes / whiche in latine is called Libellū repudu / and so they mighte thereby forsake theyr wyfes As it appereth Deutro xxiii therefore lyke as a dispensacion was sufred agaynst that bōde / so it semeth it may be agaynst this statute ¶ Doctour as to that reason that thou haste laste made of a byll of refusell / let all purchasours of lāde here what our lorde sayth in the Gospell to the Iewes of that byll of refusell Mathei xix where he sayth thus / To the hardnes of iour hertes / Moyses suffred you to leue your wyfes / for at the begynnynge it was nat so / of whiche wordes Doctours holde commonly that thoughe suche a byll of refusell was lawfull so that they that refused theyr wyfes therby / shulde be without payne in the lawe / that yet it was neuer lawfull so that it shuld be with out synne And so likewyse it may be sayd in this case / that suche recoueries be suffred for the hardnes of the hertes of Englisshemen / whiche desyre lande possessions with so great gredynes that they cā nat be withdrawne from it neyther by the lawe of god / nor by the lawe of the realme And therefore that ryche men shulde nat take the possessions of poore mē from thē by power without coloure of title / that is to saye eyther by open disseson / or by the onely sale of the tenaunte in tayle so to holde them agaynste the expresse wordes of the statute / suche recoueryes haue ben suffred And though for theyr great multitude they maye haplye be without payne as to the lawe of the realme yet it is to feare that they be nat without offence as agaynst god / as to thy other reason that a common errour shulde make a right those wordes as me semeth be to be thus vnderstande / that a custome vsed agaynst the lawe of man shal be taken in some coūtres for lawe if the people be suffred so to continue And yet some mē call suche a custome an errour bycause that the continuance of that custome agaynst the lawe was partlye an errour in the people / for that that they wolde nat obey to the law that was made by theyr superiours to the contrarye of that custome but it is to be vnderstande that the sayd recoueries though they haue ben longe vsed may nat be taken to haue the strength of a custome / for many as well lerned as vnlerned haue alwaye spokē agaynste thē and yet do And furthermore as I haue herde say a custome or a p̄scripcion in this realme agaynste the statutes of the realme preuayle nat in the lawe ¶ Studēt though a custome in this realme preuayleth nat agaynst a statute as to the lawe / yet it semeth that it may preuayle agaynste the statute in conscience / for though ignoraunce of a statute excuseth nat in the lawe / neuertheles it may excuse in conscience / so it semeth that it may do of a custome ¶ Doctoure But it suche recoueries can nat be brought in to a lawful custome in the lawe / it semeth they maye nat be brought in to a custome in conscience / for conscience muste alway be groūded vpon some lawe in this case it can nat be grounded vpon the lawe of reason / nor vpon the lawe of god and therefore if the lawe of man serue nat / there is no groūde wherupon conscience in this case may be grounded / at the begynnynge of suche recoueries they were taken to be goood / bycause the lawe shuld warraunt them to be good and nat by reason of any custome and so if the reason of the lawe wyll nat serue in tho recoueries / the custome cā nat helpe for an euyll custome is to be put awaye And therfore me semeth that tho recoueries be nat without offence against god / thoughe haplye for theyr great multitude / and that there shulde nat be as it were a subuersion of
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
seconde question of the Student The .xxii. chapitre Fo. 50. ¶ The thyrde question of the Student The .xxiii. chapitre Fo. 51. ¶ The fourth question of the Student The .xxiii. chapitre Fo. 52 ¶ The .v. question of the Student The .xxv. chapitre Fo. 54. ¶ A question made by the Doctoure / how certayn recoueries that be vsed in the kinges courtes to defete rayled lande maye stande with coÌ„scieÌ„ce The .xxvi. cha fo 55 ¶ The fyrst questioÌ„ of the studeÌ„t / coÌ„cerniÌ„g tayled laÌ„des The .xxvii. chapi Fo. 65. ¶ The .ii. questioÌ„ of the studeÌ„t / coÌ„cerning tayled laÌ„des The .xxviii. chapi Fo. 66. ¶ The thyrde question of the Student / concernynge tayled landes The .xxix. chapitre Fo. 68. ¶ The .iiii. question of the StudeÌ„t / coÌ„cernynge recoueries of enheritauÌ„ce entayled The .xxx. chapitre Fo. 70. ¶ The .v. question of the StudeÌ„t / concernynge tayled landes The .xxxi. chapitre Folio 72. ¶ The .vi. questioÌ„ of the StudeÌ„t / coÌ„cerniÌ„g tayled laÌ„des The .xxxii. chapi Fo. 74. Addicion Fo. 77. ¶ Finis Tabule ¶ Thus endeth the fyrste Dialogue in Englisshe / with the Addicions bytwene a Doctoure of diuinitie and a Student in the lawes of EnglaÌ„de which treateth of diuers thynges that be shortly touched in the fyrst lesse of thê present boke before the introduccion ¶ Imprynted at LondoÌ„ in the Fletestrete / by me Robert Redman dwellynge in saint Dunstones parysshe / nexte the churche In the yere of our lorde god M. CCCCC XXXii The fyrst day of the moneth of Iuly ∴ Robert Redman ¶ The seconde dyalogue in englysshe / bytwene a doctour of diuynyte and a student in the lawes of Englande / newly corrected and imprinted with newe addycions HEre after foloweth the Seconde dyaloge in englisshe bytwene a doctour of diuinite a student in the lawe of EnglaÌ„de In the begynnynge of which dyalogue the doctour answereth to certayne questions / whiche the student made to the doctoure before the makynge of this dyalogue concernynge the lawes of Englande conscieÌ„ce / as appereth in a dyalogue made bytwene them in latin the 24. chap. And he answereth also to diuers other questions that the studeÌ„t maketh to hym in thê dyaloge of the law of EnglaÌ„de and conscieÌ„ce And in diuers other chapiters of this present dyalogue is touched shortly / howe the lawes of Englande are to be obserued kepte in this realme / as to temporall thyngê as well in lawe as in conscieÌ„ce before any other lawes And in some of the chapitres therof is also touched that spirituall Iuges in diuers cases be bounde to gyue theyr iugemeÌ„tes accordynge to the kyngê lawe And in the later ende of the boke the doctoure moueth diuers cases concernynge the lawes of England / wherin he douteth howe they may stande with conscience / wherunto the student maketh answere in suche maner as to the reder wyll appere ¶ The introductyon STudent In the later ende of our fyrste dyalogue iÌ„ latyn / I put dyuers cases grounded vpon the lawes of EnglaÌ„de / wherin I douted and yet do what is to be holden therin in conscyence But for as moche as the tyme was than farre paste / I shewed the that I wolde not desyre the to make answere to theÌ„ forthwith at that tyme / but at some better leyser whervnto thou saydest thou woldest nat only shewe thyne opinyon in tho cases / but also in suche other cases as I wolde put wherfore I pray the now for as moche as me thinkethe thou haste good leyser that thou wylte shewe me thyne opinyon therin ¶ Doctour I wyll with good wyll acomplysshe thy desyre but I wolde that whan I am in doute what the lawe of this realme is in suche cases as thou shalte put / that thou wylte shewe me what the lawe is therin for though I haue by occasyon of our first dyalogue in latyn / lerned many thiÌ„ges of the lawes of this realme / which I knew nat before yet neuerthelesse there be many mo thynges that I am yet ignorant in / that peraueÌ„ture in these selfe cases that thou haste put / and entendest here after to put and as I sayd in the first dyalogue in latyn / the .xx. chapyter / to serche conscyence vpon any case of the lawe / it is in vayne / but where the lawe in the same case is perfytely knowen ¶ Student I wyll with good wyll do as thou sayest / I entende to put dyuers of the same questyons that be in the laste chapytre of the sayde dyalogue in latyn and somtyme I entende to alter some of them and to adde some newe questyons to them / suche as I shall be moste in doute of ¶ Doctour I pray the do as thou sayest / I shall with good wyll eyther make answere to them forthwith as well as I can / or shall take lenger respyte to be aduysed / or els perauenture agre to thyne opinyon therin / as I shall se cause But fyrst I wolde gladly know the cause why thou hast begon this dyalogue in the englysshe tonge / nat in the latyn toÌ„ge / as the fyrst cases that thou desyredest to knowe myne opinyon be in / or in frenche as the substaunce of the lawe is ¶ Student The cause is this It is ryght necessary to all men in this realme / bothe spirituall temporall for the good orderiÌ„ge of theyr coÌ„scieÌ„ce to knowe many thyngê of the lawe of Englande that they be ignoraunt in And thoughe it had ben more pleasaunt to them that be lerned in the latyne tonge to haue had it in latyne rather than in englysshe yet neuerthelesse for as moche as many can rede englysshe that vnderstaÌ„de no latyn / some that can nat rede englysshe by heriÌ„ge it redde may lerne diuers thynges by it that they shulde nat haue lerned if it were in latyn Therfore for the ê“fite of the multitude it is put into the englysshe tonge rather than into the latyn or freÌ„che tonge For if it had ben in frenche fewe shulde haue vnderstande it / but they that be lerned in the lawe / and they haue leste nede of it / for as moche as they knowe the law in the same cases wtout it / can better declare what conscieÌ„ce wyll therupon / than they that knowe nat the lawe nothiÌ„ge at all To them therfore that be nat lerned iÌ„ the lawe of the realme this treatice is specially made / for thou knowest well by suche studyes thou haste taken to some knowlege of the law of the realme that is to them moste expedient ¶ Doctoure It is true that thou sayest therfore I praye the nowe procede to thy questions ¶ The fyrst question of the Student The fyrste chapitre STtudent If tenant in tayle after possibilitie of issue extincte do wast / whether dothe he therby offende in conscience thoughe he be nat punysshable of waste by the lawe ¶ Doctoure Is the lawe clere that he is nat punysshable for
the waste ¶ StudeÌ„t ye verely ¶ Doct. And what is the lawe of tenantes for tme of lyfe or for tme of yeres if they do waste ¶ Student They be punysshable of wast by the statute shall yelde treble damagê / but at the comon lawe before that statute they were nat punysshable ¶ Doctour But whether thynkest thou that before that statute they myght haue done waste with conscieÌ„ce bycause they were nat punysshable by the law StudeÌ„t I thynke nat / for as I take it the doyng of the wast of suche particuler tenantes for terme of lyfe / for terme of yeres / or of tenantes in dower / or by the curtesye is prohibite by the lawe of reason / for it semeth of reason that whan suche leases be made / or that suche tytles in dower or by the curtesy be gyuen by the lawe that there is onely gyueÌ„ vnto them the annuall ê“fites of the lande and nat the houses trees the grauel to dygge cary away / wherby the hole ê“fite of them in the reuercion shulde be taken away for euer And therfore at the comon lawe for waste done by tenant in dower or tenant by the curtesy there was punysshemeÌ„t ordeyned by the lawe by a ê“hibicion of waste wherby they shulde haue yelded damages to the value of the waste But agaynst tenant for terme of lyfe or for tme of yeres lay no suche ê“hibicion / for there was no maxime iÌ„ the lawe therin agaynst them as there was agaynste the other And I thynke the cause was for as moche as it was iuged a folye in the lessour that made suche a lease for terme of lyfe / or for terme of yeres that at the tyme of the lessee he dyd nat prohibite them that they shulde nat do waste / and sythe he dyd nat prouide no remedye for hym selfe the lawe wolde none ê“uide But yet I thynke nat that the intent of the lawe was that they myght lawfully with good coÌ„scieÌ„ce do waste / but agaynst tenantes in dower by the curtesye the lawe prouided remedy for they had theyr tytle vy the lawe Do. And verely me thynketh that this tenant in tayle as to doyng of waste / shuld be lyke to a tenaunt for terme of lyfe / for he shall haue the lande no lenger than for terme of his lyfe no more thaÌ„ a tenant for terme of lyfe shall / and the waste of this tenant is as great hurte to hym in the reuercion or remayndre / as is the waste of a tenant for terme of lyfe and if he alyene / the donoure shall entre for the forfeyture as he shall vpon the alyenacion of a tenant for terme of lyfe / and if he make defaute in a Precipe ê™ reddat the donour shal be receyued as he shal be vpon the defaute of a tenant for terme of lyfe / and therfore me thynketh he shal also be punysshable of wast / as tenant for terme of lyfe shall ¶ Student If he alyen the donour shal entre / as thou sayst bycause that alyenacion is to his disheritance / and therfore it is a forfeyture of his estate and that is by an auncient maxime of the lawe that gyueth that forfeyture in that selfe case / and if he make defaute in a PrecÌ„ ê™ redd he in the reuercion / as thou sayest shal be receyued / but that is by the statute of West .ii. for at the comon lawe ther was no suche receyt / and as for the statute that gyueth the accion of waste agaynst a tenant for terme of lyfe and for terme of yeres it is a statute penall shall nat be taken by equite / so there is no remedy gyuen agaynste hym / neyther by comon lawe nor by statute / as there is agaynste tenant for terme of lyfe / therfore he is vnpunysshable of waste by the lawe ¶ Doctour And thoughe he be vnpunysshable of waste by the lawe yet neuerthelesse me thynketh he maye nat by conscieÌ„ce do that / that shal be hurtefull to the inheritaunce after his tyme / sythe he hathe the lande but for terme of his lyfe no more than a tenaunte for terme of lyfe may / for than he shulde do as he wolde nat be done to / for thou agreest thy selfe that thoughe a tenaunt for terme of lyfe was nat punysshable of wast before the statute that yet the lawe iuged nat that he myght ryghtfully with good conscieÌ„ce do wast And therfore at this day if a feffement be made to the vse af a man for terme of lyfe / thoughe there lye no accion agaynst hym for waste / yet he offendeth conscience if he do waste as the tenaunte for terme of lyfe dydde afore the statute whan no remedye lay agaynste hym by the lawe ¶ Stud. That is true / but there is great diuersite bytwene this tenant a tenant for terme of lyfe for this tenaunt hath good authorite by the donour to do waste / so hathe nat the tenaunte for terme of lyfe / as it is sayd before For the estate of a tenaunt in tayle after possibilite of yssue extyncte is in this maner Whan landes be gyuen to a man to his wyfe and to the heyres of theyr two bodyes begotten / and after the one of them dyeth without heyres of their bodyes begotten / than he or she that ouerlyueth / is called tenant in tayle after possibilite of yssue extyncte / bycause there can neuer by no possibilite be any heyre that may inheryte by force of that gyfte And thus it apereth that the donees at the tyme of the gyfte receyued of the donour estate of enheritance / which by possibilite might haue continued for euer / wherby they had power to cut downe trees to do all thiÌ„ge that is wast / as tenant iÌ„ fee simple myght and that authorite was as stronge in the lawe as if the lessour that maketh a lease for terme of lyfe say by expresse wordes in the lease that the lesse shall nat be punysshable of waste And therfore if the donour in this case had graunted to the donees that they shulde nat be punisshable of wast that graunt had ben voyde bycause it was included in the gyfte before as it shulde be vpon a gyfte in fe simple so for as moch as by the fyrste gyfte and by the lyuere of season made vpon the same the donees had authorite by the donour to do waste Therfore though the one of the donees be nowe deed without yssue / so that it is certayne that after the dethe of the other the lande shall reuerte to the donour / yet the authorite that they had by the donour to do waste coÌ„tinueth as longe as the gyfte and the lyuerey of season made vpon the same coÌ„tinueth and I take this to be the reason why he shal nat haue in ayde as tenaunt for terme of lyfe shal / that is to say / for that he can nat aske helpe of that maxime
/ 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
the straunger be nat sufficient to make recompence for the wast done ¶ Doctoure Is the lawe clere in this case that he in the reuercion shal recouer agaynst the tenauÌ„t for terme of lyfe thoughe that he assented nat to the doyng of the wast ¶ Student ye verely / and yet if the tenauÌ„t for terme of lyfe had ben bouÌ„den in an obligacion in a certeyne suÌ„me of money that he shulde do no waste he shuld nat forfayt his boÌ„de by the wast of a strauÌ„ger / and the diuersite is this It hathe ben vsed as an auncient maxime in the lawe that tenaunt by the curtesy and tenauÌ„t in dower shuld take the lande with this charge / that is to saye / that they shulde do no waste them selfe ne suffre none to be done / and whan an accion of wast was gyuen after agaynst a tenaunt for terme of lyfe thaÌ„ was he taken to be in the same case as to that poynt of waste as tenaunt by the curtesy and tenaunt in dower was / that is to saye / that he shulde do no waste nor suffre none to be done / for there is a nother maxime in the lawe of Englande that all cases lyke vnto other cases shal be iuged aft the same lawe as the other cases be syth no resoÌ„ of diuersite can be assigned why thete naÌ„t for terme of lyfe after an accioÌ„ of wast was gyueÌ„ agaynst hiÌ„ shuld haue any more fauour iÌ„ the lawe thaÌ„ the tenaÌ„t by the curtesie or tenauÌ„t iÌ„ dower shuld / therfore be is put vnd the same maxime as they be / that is to say / that he shall do no wast ne suffre none to be done / and so it semethe that the lawe in this case dothe nat considre the abilite of the persone that dothe the waste whether he be able to make recompeÌ„ce for the wast or nat But the assent of the sayd tenauntes wherby they haue wylfully taken vpon theÌ„ the charge to se that no wast shal be done ¶ Doctor I haue herde that if houses of these tenauntes be destroyed with sodeyne tempest or with straunge enemies that they shall nat be charged with wast ¶ Student Trouthe it is ¶ Doct. And I thynke the reason is bycause they can haue no recouere ouer ¶ Student I take nat that for the reason but that it is an olde reasonable maxime iÌ„ the lawe that they shuld be discharged iÌ„ those cases / how be it some wyll saye that in those cases the lawe of reason doth discharge them therfore they saye that if a statute were made that they shulde be charged in those cases of wast that the statute were agaynst reason and nat to be obserued / but yet neuertheles I take it nat so / for they myght refuse to take suche estate if they wolde / and if they wyll take the state after the lawe made it semeth reasonable that they take it with the charge and with the condicion that is appoynted therto by the lawe thoughe hurte myght folowe to theÌ„ afterward therby / for it is oftentymes sene iÌ„ the lawe that the lawe doth suffre him to haue hurt without helpe of the lawe that wyll wylfully renne into it of his owne acte nat coÌ„pelled therto and aiugeth it is folly so to renne into it / for whiche folly he shall also be many tymes without remedy in conscience As if a man take landes for terme of lyfe and byndeth hym selfe by obligacion that he shall leue the lande in as good case as he founde it / if the houses be after bloweÌ„ downe with tempest or destroyed with straunge enemies as in the case that thou hast put byfore he shal be bouÌ„de to repayre them or els he shall forfayte his obligacioÌ„ in lawe conscience bycause it is his owne acte to bynde hiÌ„ to it / yet the lawe wolde nat haue bounde hym therto as thou hast sayd byfore So me thiÌ„keth that the cause why the sayd tenauntes be discharged in the lawe in an accion of wast whaÌ„ the houses be destroyed by sodeyne tempest or by straunge enemyes is by a speciall reasonable maxime in the lawe / wherby they be excepted fro the other generall bonde byfore reherced / that is to saye they shall at theyr peryl se that no waste shal be done and nat by the lawe of reason / and syth there is no maxime in this case to helpe this tenaunt ne that he can nat be holpeÌ„ by the lawe of reason / it semeth that he shal be charged in this case by his owne acte bothe in lawe conscience whether the straunger be able to recompence hym or nat ¶ Doctour I doute iÌ„ this case whether the maxime that thou spekest of be reasonable or nat / that is to say / that tenauntes by the curtesye tenauntes in dower were bounden by the comon lawe lawe that they shulde do no waste them selfe / and ouer that at theyr peryll to se that no waste shulde be done by none other For that lawe semeth nat reasonable that byndeth a man to an impossibilite And it is impossible to preuent that no wast shal be done by straungers / for it may be sodeynly done iÌ„ the nyght that the tenauÌ„tê can haue no notice of / or by great power that they be nat able to resyste / and therfore me thiÌ„keth they ought nat to be charged in those cases for the waste / without they may haue good remedy ouer and thaÌ„ percase the sayd maxime were sufferable / els my thynketh it is maxime agaiÌ„st reason ¶ StudeÌ„t As I haue sayd before no man shal be compelled to take that boÌ„de vpon hym but he that wyll take the lande and if he wyll take the lande it is reasoÌ„ he take the charge as the lawe hath appoynted with it / and thaÌ„ if any hurte growe to hym therby it is throughe his owne acte and his owne assent / for he myght haue refused the lease if he wolde ¶ Doctoure Thoughe a man may refuse to take estate for terme of lyfe or for terme of yeres / and a womaÌ„ may refuse to take her dower yet tenauÌ„t by the curtesy can nat refuse to take his estate for immedeatly after the deth of his wyfe the possession abideth styll iÌ„ hym by the acte of the lawe without entre / and thaÌ„ I put the case that after the deth of his wyfe he wolde weyue the possessioÌ„ after wast were done by a strauÌ„ger whether thiÌ„kest thou that he shuld answere to the wast ¶ Stu. I thynke he shulde by the lawe ¶ Doct. And howe staÌ„deth that with reasoÌ„ / seyng there is no defaut iÌ„ hiÌ„ ¶ Stu. It was his defaut / at his owne peryll that he wolde marye an enheritrice whervpon such dauÌ„ger myght folowe ¶ Doc. I put case that he were withiÌ„ age at the mariage or that the laÌ„de disceÌ„ded to his wyfe aft he maried her Stu. there thou mouest a 〈◊〉 doute than the fyrste question is /
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
a simple coÌ„tracte ¶ Doctoure To pay the dettes for that is certayne and the trespas is arbitrable ¶ Student Than for the playner declaracion of this matter and other lyke I praye the shewe me thy mynde by what lawe it is that a man maye make executours and that the executours if they take vpon them be bouÌ„de to perfourme the wyl and to dispose the goodê that remayne for the testatour ¶ Doctour I thynke that it is by the lawe of reason ¶ Student And me thynketh it shulde be rather by the custome of the realme ¶ Doctour In al coÌ„treys in all landes they make executours ¶ StudeÌ„t That semeth to be rather by a generall custome after that the lawe and custome of propertie was brought in than by the lawe of reason / for as longe as all thynges were in comon there were no executours ne wylles ne they neded nat thaÌ„ / and whan property was after brought in me thynketh that yet makynge of executours disposyng of goodê by wyll after a maÌ„nes deth folowed nat necessarely there vpoÌ„ / for it myght haue ben made for a law that a man shulde haue had the ê“pertie of his goodê only duryng his lyfe / that thaÌ„ his dettes payed / all his goodê to haue ben lefte to his wyfe clyldren or nexte of his kynne without any legacies makyng ther of so myght it nowe be ordeyned by statute / the statut good nat against reasoÌ„ / wherfor it appereth that executours haue no auctorite by the law of reasoÌ„ but by the lawe of man And by the olde lawe and custome of this realme a man may make executours and dispose his goodê by his wyl / than his executours shall haue the execucion therof his heyres shal haue nothiÌ„g / but if any particuler custome helpe / the executours shall also haue the hole possession ad disposicion of all his goodes and catels / as well reall as personal / thoughe no worde be expressely spoken in the wyl that they shall haue them / and they shall haue also accions to recouer al dettes due to the testatour thoughe all dettes and legacies of the testatour by payed byfore / and shall haue the disposicion of them to the vse of the testatour and nat to theyr owne vse / so me thynketh that the auctorite to make executours and that they shall dispose the goodes for the testatour is by the custome of the realme But than I thynke as thou sayest that by the lawe of god they shal be bounde to doo that fyrste / that is to the moste profite of the soule of theyr testatour where the disposicion therof is lefte to theyr discrecion / and that I agre wel is to pay dettes vpon contractes and to make amendes for wroÌ„ges done to the testatour thoughe they be nat compelled therto by the lawe and custome of the realme if ther be none other dette nor legacie that they be bounde to paye by the lawe / but if two seuerall dettes be payable by the lawe thaÌ„ which dette they shall do fyrst in conscieÌ„ce I am somwhat in doute ¶ Doctoure Let vs fyrste knowe what the comon lawe is therin ¶ Student The comon lawe is that if the testatoure owe .x. li. to two men seuerally by obligacion or by suche other maner that an accion lyeth agaynst his executours therof by the lawe / and he leueth goodes to pay the one and nat both / that in that case he that can fyrst optaine his iugement agaynst the executours shal haue execucion of the hole / and the other shall haue nothynge / but to whiche of them he shall in conscience owe his fauoure the comon lawe treateth nat ¶ Doctour Ther in muste be considered the cause why the dettes beganne / and than he must after coÌ„science bere his lawfull fauoure to hiÌ„ that hathe the clerest cause of dette / and if both haue lyke cause than in coÌ„science he muste bere his fauoure where is moste nede and greatest charite ¶ Student May the executours in that case delay that accioÌ„ that is fyrst taken if it stande nat with so good conscience to be payed as a nother dette wherof no accion is brought and procure that an accion may be brought therof and than to confesse that accion / that he maye so haue execucion / and thaÌ„ the executours to be discharged agaynst the other ¶ Doctour Why may he nat in that case pay the other without accion and so be discharged in the lawe agaynst the fyrste ¶ Sudent No verely for after an accion is taken the executoure maye nat ministre the goodes so / but that he leue so moch as shall pay the dette wherof the accion is taken / if he do he shall paye it of his owne goodes / excepte a nother recouer and haue iugement agaynst hym hangynge that accion and that without couyn ¶ Doctour ThaÌ„ to answere to thy question I thynke that by delayes that be lawfull as by Essoyne / emperlaunce / or by a Dilatory plee in abatement of the wrytte that is true / he may delay it / but he may plede no vntrue ple to preferre the other to his duetie But I pray the what is the lawe of legacies restitucions and dettes vpon coÌ„tractes that perease ought rather after charite to be payed thaÌ„ a dette vpon an obligacioÌ„ what may the fauoure of the executoures do in those cases ¶ Student Nothynge for if they eyther perfourme legacies / make restitucions / or paye dettes vpon contractes kepe nat sufficient to paye dettes whiche they are compellable by the lawe to paye / that shal be taken as a deuastauerunt bona testatoris / that is to saye / that they haue wasted the goodes of theyr testatour and therfore they shal be compelled to paye the dettes of theyr owne goodes / and so it is if they paye a dette vpon an obligacion wherof the day is yet to come thoughe it be the clerer dette that it be the more charite to haue it payed ¶ Doc. yet in that case if he to whome the dette is al redy owynge forbere tyl after the daye of the other obligacion is paste / than he may paye him without daunger ¶ Student That is true if there be no accion taken vpon it though there be / yet if that accioÌ„ may be delayd by lawfull meanes as thou hast spoken of byfore tyll after the day and than an accion is taken vpon it than may the executours confesse that accion and than after iugement he may paye the dette without dauÌ„ger of the lawe ¶ Doctour Is nat that confessyng of the accion so done of purpose a couyn in the lawe ¶ Student No verely / for couyn is where the accioÌ„ is vntrue / and nat where the executours bere a lawfull fauoure ¶ Doctour The ordinary vpon the accompte in all the cases byfore reherced wyl regarde moche what is best for the testatour ¶ StudeÌ„t
the feoffement was made to his owne vse And if the feoffemeÌ„t were made vpon a bargayne and a contracte betwene them / than it is to se whether they remembred the rent in in theyr bargayne / or that they remeÌ„bred it nat / if they remembred it in theyr bargayne and contracte / than coÌ„science must folowe the bargaine / as thus if they agreed that the grauntee shulde haue the rent after the porcion in the other acre than by conscience he ought to haue it thoughe it be extincted iÌ„ the lawe And if they agreed that the hoole rente shulde be extyncte and made theyr pryce accordynge than it is extyncte in lawe and conscience / and if they clerely forgete it and made no mencion of it / or for lacke of connynge toke the lawe to be that it shulde continue in the other acre after the porcion and made theyr price accordynge / ponderynge onely the value of the acre that was solde than me thynketh / it dothe continue in conscience after the porcion / and if the feoffement were made to the vse of the grauÌ„tee / than it semeth the hole rente is extyncte in lawe and conscience ¶ Student Than take that to be the case / that is to saye / that the feoffement was made to the vse of the grauÌ„tee ¶ Doctoure What is than thyne opinion therin ¶ Student That the rente shulde abyde in conscience after the porcion for the acre that remayneth in the handes of the grauntoure natwithstandynge it be extyncte in the lawe ¶ Doctoure Than shewe me thyne opinion iÌ„ this that I shall aske the. Of what lawe is it that grauntes of rent and of suche other profites out of landes maye be made and that they shal be good and effectual to the grauÌ„tees / whether is it by the lawe of reason or by the lawe of god or by the custome and lawe of the realme ¶ Studente I thinke it is by the lawe of reasoÌ„ / for by the same reason that a man may gyue awaye all his landes he maye as it semethe gyue awaye the profytes therof or graunte a rent out of the lande if he wyl ¶ Doctour But than by what lawe is it that a man maye gyue awaye his landes / I trowe by none other lawe but by the custome of the realme / for by statute all alienacions and gyftes of landes maye be prohibite / and than that reason proueth nat that grauntes of the ê“fytes of lande or of a rent shuld be good by cause he maye alien the lande / if alienacions of lande be by custome and nat by the lawe of reasoÌ„ as I suppose it is / wherof I touched somwhat in our fyrste dialogue in latyne the .xix. Chapitre And also if grauntes shulde haue theyr effecte by the lawe of reason than reason wolde that they shulde be good by the onely word of the grauntoure as well as by his dede / that is nat so / for without dede the graunt of rent is voyde in the lawe and so my thinketh that grauÌ„tes haue theyr effecte onely by the lawe of the realme ¶ StudeÌ„t Admyt it to be so what meanest thou therby ¶ Doctour I shal shewe the here after as I shall shewe the the cause why I thynke the rente is extyncte in conscience as well as in lawe And fyrste as I take it the reason why it is extyncte in the lawe is bycause the rent by the fyrst graunt was goynge out of bothe acres / and was nat goyng parte out of the one acre and part out of the other / but the hole rent was goyng out of bothe / and than whan the grauntee of his one foly wyll take estate in the one acre wherby that acre is discharged / than the other acre also muste be discharged oneles it shulde be apporcioned and the law wyl nat that any apporcionemeÌ„t shulde be in that case / but rather in as moche as the partie hathe by his owne acte discharged the one acre the lawe dischargeth also the other / rather than to suffre the other acre to be charged coÌ„trarie to the fourme of the graunte / for this reÌ„t begynneth all by the acte of the party and as I haue herde is called a reÌ„t agaynst comoÌ„ ryght / wherfore it is nat fauored iÌ„ the law as a rent seruice is / and than me thynketh that for as moch as it is nat grouÌ„ded by the lawe of reason that grauntes of rent shulde be made out of lande / but by the custome and law of the realme as I haue sayd byfore / that so in lyke wyse it remayneth to the lawe and custome of the realme to determine howe loÌ„g suche rentes shall continue And whan the lawe iugeth suche rentes to be voyde I suppose that so doth conscience also / except the iugement of the lawe be agaynste the lawe of reason or the lawe of god / as it is nat in this case for in this case he that taketh the feoffement hath profite by the feoffement / and knoweth that he hath suche a rent out of the lande / and that his purchace shulde extynct it / wherby it appereth that he asienteth vnto the lawe wherto he was nat compelled / and that is his owne acte and his owne defaut so to do / whiche shall extyncte his hole rent as well in consciente as in the lawe But if he haue no ê“fyte of the lande or be ignoraunt that he hathe suche a rent out of the lande whiche is called ignoraunce of the dede / or if he be ignorauÌ„t that the lawe wolde extyncte his hole reÌ„t therby / which is called ignorauÌ„ce of the lawe / than me thynkethe it remayneth in conscience after the porcion ¶ Student Ignoraunce of the lawe or of the dede helpeth nat but in fewe cases iÌ„ the lawe of Englande ¶ Doctoure And therfore it muste be refourmed by conscience / that is to say by the lawe of reasoÌ„ / for whaÌ„ the generall maximes of the lawe be iÌ„ any particuler cases against the lawe of reason as this maxime semeth to be bycause it excepteth nat theÌ„ that be ignorauÌ„t thoughe it be an ignoraunce in vincible thaÌ„ do they nat agree with the lawe of reason ¶ Student We thynketh that ignoraunce iÌ„ this case helpeth lytell / for whan a man byethe any lande or taketh it of the gyfte of any other he taketh it at his peryl / so that if the tytle be nat good ignorauÌ„ce caÌ„ nat helpe / for the byer muste byware what he byeth / and so in this case if the takyng of the one acre shulde extincte the hole rent in conscience if he were nat ignoraunt / some thynketh it shulde in lyke wyse extincte it also thoughe he be ignoraunt of the lawe or of the dede / for euery man must be compelled to take notyce of his owne tytle and out of what lande his rent is goynge / some thynketh ignoraunce is but lytell to be coÌ„sidered in this case ¶ Doctour
haue the rent in coÌ„science shal be dryuen to sue for his remedy by Sub pena ¶ Doctour I am coÌ„tent with thy conceyte in this matter for this tyme. ⧠The .xvi. question of the student The .xviii. Chapitre STudent A vylleyne is graunted to a maÌ„ for terme of lyfe / the vylleyne purchaseth landes to hym and to his heyres / the tenaunt for terme of lyfe entre the / in this case by the lawe he shall enioye the landes to hym and to his heyres / whether shall he do so in lyke wyse in conscienec ¶ Doctour Me thynketh it fyrst good to se whether it maye stande with conscience that one man may clayme an other to be his vylleyne / and that he maye take fro hiÌ„ his landes and goodes and put his body in prysoÌ„ if he wyll / it semeth he loueth nat his neyghbour as hym selfe that dothe so to hym ¶ Sudent That lawe hathe bene so longe vsed in this realme and in other also / and hath ben admitted so long in the lawes of this realme and of diuerse other lawes also and hath bene affermed by bisshoppes / abbotes / priors / and many other men bothe spirituall and temporall which haue take aduauntage by the sayd lawe haue seased the landes and goodê of theyr vylleyns therby and cal it theyr ryght enheritaunce so to do that I thynke it nat good / nowe to make a doute ne to put it in argument whether it stand with conscieÌ„ce or nat / and therfore I pray the admittyng the lawe in that behalfe to stande in conscience shewe me thyne opinion in the question that I haue made ¶ Doctour Is the lawe clere that he that hath the vylleyne but only for the terme of lyfe shal haue the landes that the vylleyne purchaseth in fee to hym and to his heyres ¶ Student I verely I take it so ¶ Doctour I wolde haue take the lawe otherwise / for if a seygnoury be graunted to a man for terme of lyfe and the tenaunt attourne / and after the lande eschete and the tenauÌ„t for terme of lyfe entreth he shal haue there none other estate iÌ„ the lande than he had in the seygnourye / and me thynketh that it shuld be lyke law in this case / and that the lorde ought to haue in the lande but suche estate as he hathe in the vyllayne ¶ Stud. The cases be nat lyke / for in that case of the eschete the tenaunt for terme of lyfe of the seygnourye hathe the landes in the lieu of the seignourie / that is to saye / in the place of the seignourie / the seignourie is clerely extincte / but in this case he hathe nat the lande iÌ„ the lieu of the vylleyne / for he shal haue the villeyne styl as he had byfore / but he hath the landes as a ê“fyte come by meanes of the vylleyne whiche he shall haue in lyke case as the vylleyne had them / that is to saye / of all goodes and catalles he shal haue the hole propertie and of a lease for terme of yeres he shall haue the hole terme / and for terme of lyfe he shall haue the same estate / the lorde shall haue the lande durynge the lyfe of the vyleyne of lande in fee simple of an estate tayle that the vylleyne hath / the lorde shall haue the hole fee simple / all thoughe he had the vylleyne but onely for terme of yeres so that he entre or sease accordyng to the lawe byfore the vylleyne alien or elles he shall haue nothynge ¶ Doctoure Verely and if the lawe be so / I thynke conscience folowethe the lawe therin / for admyttynge that a man maye with conscience haue an other man to be his hylleyne / the iugement of the lawe in this case as to termine what estat the lord hath in the lande by his entre is neyther agaynst the lawe of reason nor agaynst the lawe of god / and therfore conscience muste folowe the lawe of the realme / but I pray the let me make a lytell dygression to here thyne opinion in a nother case somewhat perteynynge to the question / and it is this if an executour haue a vylleyne that is his testatoure had for terme of yeres he purchaseth landes in fee and the executour entreth in to the lande / what estate hathe he by his entre ¶ Student A fee simple / but that shal be to the behoue of the testatoure and shal be an assesse in his handes ¶ Doctoure Well than I am contented with thyne conceyte at this tyme in this case and I praye the procede to a nother question ¶ Ttudente For as moche as it appereth in this case and in some other byfore that the knowlege of the law of EnglaÌ„de is ryght necessarie for the good orderynge of conscience I wolde here thyne opinion if a man mistake the lawe what dauÌ„ger it is in conscience for the mistakynge of it ¶ Doctour I praye the put some case in certayn therof that thou doutest in / and I wyll with good wyll shewe the my mynde therin for elles it wyll be somwhat longe or it can be playnly declared / and I wolde nat be tedious in this wrytynge ⧠The .xvii. question of the student The .xix. Chapitre STudent A man hath a vylleyne for terme of lyfe the vylleyne purchaseth landes in fee as in the case in the laste Chapitre and the tenauÌ„t for terme of lyfe entreth and after the vylleyne dyeth / he in the reuercion pretendynge that the tenauÌ„t for terme of lyfe hath nothyng in the land but for terme of lyfe of the vylleine / asketh counsayle of one that sheweth him that he hath good ryght to the lande and that he may lawfully entre / and through that couÌ„sayle he in the reuercion entreth / by reason of the whiche entre great sutes and expences folowe in the lawe to the great hurte of bothe parties / what daunger is this to hym that gaue the counsayle ¶ Doctour Whether meanest thou that he that gaue the counsayle gaue it wyttyngly agaynste the lawe / or that he was ignoraunt of the lawe ¶ Student That he was ignorauÌ„t of the lawe for if he knewe the lawe gaue counsayle to the contrarie I thynke hym bounde to restitucion both to hym against whome he gaue the counsayle / and also to his client if he wolde nat haue sued but for his counsayle of all that they be dampnified by it ¶ Doctour Than wyl I yet ferther aske the this question / whether he of whome he asked counsayle gaue hym selfe to lernynge to haue knowlege of the law after his capacite or that he toke vpon hiÌ„ to gyue counsayle and toke no study competent to haue lernynge / for if he dyd so I thynke he be bounden in conscience to restitucion of all the costes and damages that he susteyned to whome he gaue counsayle if he wolde nat haue sued but throughe his counsaile And also
to the other partie / but if a man that hathe taken sufficient studye in the lawe / mystake the lawe in some poiÌ„t that is harde to come to the knowle of he is nat bounden to suche restitucion / for he hath done that in him is / but if suche a maÌ„ knowyng the lawe gyue couÌ„sayle agaynst the lawe he is bounde in conscience to restitucion of costes damages as thou hast sayd byfore / and also to make amendes for the vntrouthe ¶ Student What if he aske counsayle of one that he knowethe is nat lerned and he gyueth him counsayle iÌ„ this case to entre by force wherof he entreth ¶ Doctoure Than be they bothe bounde in conscience to restitucion / that is to say / the party if he be sufficient and els the couÌ„sayloure bycause he assented and gaue couÌ„sayle to the wronge ¶ StudeÌ„t But what is the counsaylloure in that case bounden to / to hym that he gaue counsayle to ¶ Doctoure To nothynge for there was as moche defaut in him that asked the couÌ„sayle as in hym that gaue it / for he asked couÌ„sayle of hym that he knewe was ignoraunt / and in the other was defaut for the presumpcion that he wolde take vpon him to gyue counsaile in that he was ignorauÌ„t in ¶ Stud. But what if he that gaue the counsayle knewe nat but that he that asked it had trust in hym that he coulde and wolde gyue hym good counsayle and that he asked couÌ„sayle for to order wel his conscience howe be it that the truth was that he coulde nat so do ¶ Doct. Than is he that gaue the counsayle bouÌ„den to offer to the other amendes / but yet the other may nat take it in conscience ¶ Student That were somwhat perilous for haply he wold take it thoughe he haue no ryght to it / excepte the worlde be well amended ¶ Doc. What thynkest thou in that amendement ¶ Sudent I trust euery maÌ„ wyl do nowe in this worlde as they wolde be done to / speake as they thynke / restore where they haue done wroÌ„g / refuse money if they haue no ryght to it though it be offred them do that they ought for to do by coÌ„scieÌ„ce / though they can nat be coÌ„pelled to it by no lawe that none wyl gyue couÌ„saile but that they shal thynke to be accordynge to coÌ„science / and if they do to do that they can to refourme it / and nat to entremit them selfe with suche maters as they be ignoraunt in / but in suche cases to sende them that aske the counsayle to other that they shall thynke be more connynge than they are ¶ Doct. It were very well if it were as thou haste sayd / but the more petie is it is nat alwaye so / specially there is great defaute in gyuers of counsayle / for some for theyr owne lucre and profyte gyue couÌ„sayle to coÌ„forte other to sue that they knowe haue no ryght / but I truste there be but fewe of theÌ„ / some for drede / some for fauoure / some for malyce / and some vpon confederacies and to haue as moche done for them a nother tyme to hyde the trouthe And some take vpon them to gyue counsayle in that they be ignoraunt in / and yet whaÌ„ they knowe the trouthe wyll nat withdrawe that they haue misdone / for they thynke it shulde be greately to theyr rebuke / and suche ê‘sones folowe nat this couÌ„sayle that sayth That we haue vnaduisedly done lette vs with good aduyse reuoke agayne ¶ Student And if a maÌ„ gyue couÌ„sayle in this realme after as his lerninge and coÌ„science gyueth hym / and regardethe nat the lawes of the realme / gyueth he good counsayle ¶ Doc. If the lawe of the realme be nat iÌ„ that case agaynst the lawe of god nor agaynste the law of reasoÌ„ he gyueth nat good couÌ„sayle / for euery man is bouÌ„de to folowe the lawe of the contrey where he is / so it be nat agaynste the sayd lawes / so maye the case be that he may bynde hym selfe to restitucion ¶ Student At this tyme I wyll no ferther trouble the in this question ⧠The .xviii. question of the student The .xx. Chapitre ¶ STudent If a man of his mere mocion gyue landê to Henry herte and to his heyres by indenture vpon condicion that he shall yerely at a certayne daye pay to Iohanat Style out of the same lande a certayne rent / and if he do nat that than it shal be lawful to the sayd Iohan at style to entre c. if the rent iÌ„ this case be nat paied to Iohan at style / whether maye the sayd Iohan at style entre in to the landes by coÌ„science thoughe he maye nat entre by the lawe ¶ Doctour May he nat entre in this case by the lawe syth the wordê of the indenture be that he shall entre ¶ StudeÌ„t No verelye for there is an auncient maxime in the lawe that no man shall take aduauntage of a condicion but he that is ê‘tie or priuey to the condicion / and this maÌ„ is nat partie nor priuey / wherfore he shall haue none aduauntage of it ¶ Doctoure Thoughe he can haue none aduauntage of it as partie yet bycause it appereth euidentely that the intente of the gyuer was that if he were nat payed of the rente that he shulde haue the lande It semeth that in coÌ„science he ought to haue it thoughe he can nat haue it by the lawe ¶ Student In many cases the entente of the partie is voyde to all intentes if it be nat grounded accordynge to the lawe And therfore if a man make a lease to a nother for terme of life / and after of his mere mocion he confermeth his estate for terme of lyfe / to remayne after his dethe to a nother and to his heyres / in this case that remayndre is voyde in lawe and conscience / for by the lawe there can no remayndre depeÌ„de vpon no estate but that the same estate begiÌ„neth at the same time that the remaiÌ„dre dothe / and in this case the estate beganne byfore and the confirmacion enlarged nat his estate nor gaue hym no newe estate / but if a lease be made to a man for terme of a nother mannes lyfe and after the lessour onely of his mere mocion confermeth the lande to his lesse for terme of his owne lyfe the remayndre ouer in fee / this is a good remayndre in lawe and conscience / and so me thynketh the intent of the partie shall nat be regarded in this case ¶ Doctoure And in the fyrst case that thou hast put me thynketh though it passe nat by way of remayndre that yet it shall passe as by waye of graunt of the reuercion / for euery dede shal be takeÌ„ most stronge agaynst the grauÌ„tour and the takyng of the dede iÌ„ this case is an attournament in it selfe ¶ StudeÌ„t That can nat be / for he in the remayndre
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
/ but this must be alway excepte that if at the fyrste auoydaunce that shal be after the dethe of the comon auncestre the kynge haue the warde of the longest doughter / that thaÌ„ the kyng by his prerogatiue shall haue the presentement And at the nexte auoydauÌ„ce the eldest syster so by turne But it is to vnderstande that if after the dethe of the comon auÌ„cestre the churche voydeth the eldest syster presented togyder with another of the systers / the other systers euery one iÌ„ theyr owne name or togyder that in that case the ordinarie is nat bounden to receyue none of theyr clerkes but may suffre the churche to renne in to the lapas as it is sayd before for he shall nat be bounde to receyue the clerke of the eldest syster but where she presenteth in her owne name And in this case where the patrones varye in presentement the churche is nat properlye sayd letigiouse so that the ordinarie shuld be bouÌ„de at his perill to directe a writte to enquere de Iure patronatus for that writ lieth where two presente by seuerall titles / but these patroÌ„s present all in one title / therfore the ordinarie maye suffre it to passe if he wyll in to the laps / this maner of presentemeÌ„tes muste be obserued in this realme in lawe conscience ☞ Howe loÌ„ge tyme the patron shal haue to presente to a benefice The .xxxi. Chapitre DOctoure Thê questioÌ„ is asked iÌ„ SuÌ„ma aÌ„gelica iÌ„ the title Ius patronaâ—ê° the .xvi. article / there it is aÌ„swered that if the patron be a lay maÌ„ that he shall haue .iiii. monethes / if he be a clerke he shall haue .vi. monethes ¶ Student And by the comon lawe he shall haue .vi. monethes whether he be a lay man or a clerke / I se no reason why a clerke shulde haue more respite than a lay maÌ„ but rather the contrary ¶ Doctour Fro what tyme shal the .vi. monethes be accoÌ„pted ¶ StudeÌ„t That is in diuers maners after the maner of the voydance / for if the churche voyde by dethe / creacion / or cession the .vi. monethes shal be coÌ„pted fro the dethe of the encumbent / or fro the creacion / or cession / wherof the patron shal be coÌ„pelled to take notice at his peryll / if the voydance be by resignacion or depriuacion than the .vi. monethes shall begyn whan the patron hath knowlege gyuen hym by the bisshop of the resignacion or depriuacion ¶ Doctoure what if he haue knowlege of the resignacion or depriuacion nat by the bisshope but by some other / shall nat the syxe monethes begyn thaÌ„ fro the tyme of that knowlege ¶ Student I suppose that it shall nat begyn tyll he haue knowlege gyuen hym by the bisshope ¶ Doctoure An vnion is also a cause of voydaunce howe shall the .vi. monethes be rekened there ¶ StudeÌ„t There can no Vnion be made but the patrons muste haue knowlege / it muste be apoynted who shall present after that vnion / that is to saye / one of them or bothe / eyther ioiÌ„tly or by tunre one after another as the agrement is vpon the vnioÌ„ / sythe the patron is priuy to the auoidaÌ„ce is nat ignorante of it the .vi. monethes shal be accompted fro the agremente ¶ Doctour I se well by the reason that thou haste made in this chapitre that ignoraunce soÌ„tyme excuseth in the lawe of Englande / for in some of the sayde auoydaunces it shall excuse the patrones as it appereth by thy reasons aboue / in some it shal nat / wherefore I pray the shewe me somwhat where ignoraÌ„ce excuseth in the lawe of Englande where nat after thyne oppinion ¶ Student I wyll with good wil here after do as thou sayste if thou put me in remembrauÌ„ce thereof But I wolde yet moue the somwhat ferther in suche questions as I haue moued the before / concernyng the diuersities betwene the lawes of EnglaÌ„de other lawes / for there be many mo cases therof that as me semeth haue right greate nede for the good order of conscience of many persons to be reformed to be brought in to one oppinion bothe amonge spirituall teÌ„porall / as it is in the case where doctours holde opinion that the statutes of laymen that restrayne libertie to gyue landes to the churche shulde be voyde / they saye ferther that if it were prohibit by a statute that no gyfte shulde be made to foreyns / that yet a gifte made to the churche shulde be good / for they say that the inferiour may nat take away the aucthoritie of the superioure this sayeng is directly agaynst the statutes wherby it is prohibit that landes shulde nat be gyueÌ„ in to mortmayne / they say also that byquestes gyftes to the churche muste be determined after the lawe canon nat after the lawes statutes of lay meÌ„ / so they regarde moche to whome the gifte is made whether to the churche or to make causes / or to comoÌ„ persones / bere more fauoure in giftes to the churche than to other / the law of the realme beholdeth the thyng that is gyuen pretendeth that if the thynge that is gyuen be of landes or goodes that the determinacion therof of right beloÌ„geth in this realme to the kynges lawes whether it be to spirituall maÌ„ or teÌ„poral / to the churche or to other / so is greate diuisioÌ„ in thê behalfe whan one preferreth his opinioÌ„ another his / one this iurisdiccion / another that that as it is to fere more of singularitie thaÌ„ of charite wherfore it semeth that they that haue the greatest charge ouer the people / specially to the helthe of theyr soules / are moste bounde in conscience before other to loke to this matter to do that in them is in all charitie to haue it reformed / nat beholdynge the teÌ„porall iurisdiccion nor spirituall iurisdiccion but the comon welthe quietenes of the people / and that vndoutedly wolde shortlye folowe if this diuisioÌ„ were put away / whiche I suppose veryly wyll nat be but that all men within the realme bothe spirituall teÌ„porall be ordered ruled by one lawe as to teÌ„porall thynges nat wihstandynge for as moche as the purpose of this writtyng is nat to treate of this matter therfore I wil no ferther speke thereof at this tyme. ¶ Doctoure Than I praye the procede to another question as thou sayst thy mynde is to do ¶ Student I wyll with good wyll ☞ If a man be excoÌ„menged / whether he may in any case be assoyled without makynge satisfaccioÌ„ The .xxxii. Chapitre STudent In the summe called SuÌ„ma rosella in the title absolucio quarta the seconde article it is sayd that he that is excoÌ„municate for a wronge if he be able to make satisfaccion ought nat to be assoyled but he do satisfy / that they offende
the realme / all prouisours executours of the sayd collacioÌ„s prouisioÌ„s al theyr atturneys / notaries / mainteners shal be out of the proteccioÌ„ of the kyng / shall haue like punisshemeÌ„t as they shulde haue for executing of benefices voyding withiÌ„ the realme ¶ Doctor. But I caÌ„ nat se howe the sayd statute may staÌ„de with coÌ„scieÌ„ce that so farre restrayneth the Pope of his libertie / whiche as me semeth he ought iÌ„ this case right to haue ¶ StudeÌ„t Because as I suppose the patroÌ„s ought of right to haue theyr pÌ„sentemeÌ„tes vnder suche maner as they clayme theÌ„ in thê realme as I haue sayd before / as in the .xxvi chapi of this boke appereth more at large also for as moche as it apereth euideÌ„tly that greate inconuenient folowed vpoÌ„ the sayd prouisions / that the sayde estatute was made to auoyde the same / which syth that tyme hath ben suffred by the Pope hath ben alway vsed in this realme withoute resistaunce that the sayde estatute shulde therfore staÌ„de with good conscieÌ„ce ☞ If a house by chaunce falle vpon a horse that is borowed who shall bere the losse ⸫ The .xxxviii. Chapitre STudent In the sayde summe called Summa rosella / in the title casus for tuitus / iÌ„ the begiÌ„nyng is put this case if a man lende to another a horse whiche is called there deposituÌ„ a house by chauÌ„ce falleth vpoÌ„ the horse whether in that case he shal answere for the horse And it is answered there that if the house were lyke to falle that than it can nat be taken as a chaunce but as the defaut of hym that had the horse deliuered to hiÌ„ But if the house were stronge of likeliholde by comoÌ„ presumpcion in no dauÌ„ger of fallyng but that it fell by sodayne tempeste or suche other casueltie that than it shal be taken as a chaunce / he that had the kepynge of the horse shal be discharged / thoughe his diuersite agreeth with the lawes of the realme yet for the more playner declaracion therof and for other lyke cases chaunces that may happeÌ„ to goodes that a maÌ„ hath in his keping that be nat his owne I shal adde a littell more therto that shal be somwhat necessarie as me thynketh to the orderinge of conscieÌ„ce Fyrst a maÌ„ may haue of another by way of lone or borowynge / money / corne / wyne / suche other thinges where the same thynge can nat be deliuered if it be occupied but another thynge of lyke nature lyke value muste be redeliuered for it / suche thynges he that they be lâ—â—e to may by force of that lene vse as his owne And therfore if they perysshe it is at his ieoperdye this is mooste properly called a loone Also a maÌ„ may leÌ„de to another a horse / an oxe / a carte / or suche other thynges that maye be deliuered agayne / they by force of that leue may be vsed occupied reasonablie iÌ„ such maner as they were borowed for / or as it was agreed at the tyme of the loone that they shulde be occupied / if suche thynges be occupied / otherwyse thaÌ„ accordyng to the intente of the lone / in that occupacioÌ„ they perysshe in what wyse so euer they perysshe / so it be nat in defaute of the owner / he that borowed them shal be charged therwith in law conscience / if he that borowed them occupie them in suche maner as they were lent for / in that occupacion they perysshe in defaute of hym that they were lente to thaÌ„ he shall answere for them And if they perysshe nat through his defaute than he that oweth them shall bere the losse Also if a man haue goodes to kepe to a certayne day for a certayne recompence for the kepynge he shall stande charged or nat charged after as defaute or no defaute shal be in hym / as before appereth / so it is if he haue nothyng for the kepynge / but if he haue for the kepynge make promyse at the tyme of the deliuerye to redeliuer them saufe at his peryll than he shal be charged with all chaunces that may fall But if he make that promyse haue nothynge for kepyng I thynke he is bounde to no suche casuelties / but that be wilfull and his owne defaute / for that is a nude or a naked promyse wherupon as I suppose no accion lyeth Also if a man fynde goodes of another if they be after hurte or loste by wilfull necligence he shal be charged to the owner / but if they be lost by other casuelte as if they be layde in a house that by chaunce is burned / or if he deliuer theÌ„ to another to kepe that renueth away with theÌ„ I thynke he be discharged / these diuersites hold most comonly vpoÌ„ pledges / or where a maÌ„ hurith goodes of his neyghbour to a certayn day for certayne money / many other diuersities be in the law of the realme what shal be to the ieopardy of the one what of the other whiche I will nat speke of at thê tyme. And by this it may appere that as it is comonly holden in the lawes of EnglaÌ„de if a comon caryer go by by wayes that be daungerous for robbynge / or driue by nyghte or in other vnconueniente tyme and be robbed / or if he ouer charge a horse whereby he falleth into the water or otherwyse / so that the stuffe is hurte or empeyred / that he shall stande charged for his misdemeanoure / if he wolde percase refuse to carye it / onelesse promyse were made vnto hym that he shall nat be charged for no misdemeanour that shulde be in him that promise were voyde For it were agaynste reason and agaynst good maners and so it is in all other causes lyke And all these diuersities be grouÌ„ded by secondarie conclusions diriuied vpoÌ„ the law of reasoÌ„ without any estatute made iÌ„ that behalfe And peraduenture the lawes the conclusioÌ„s therin be the more playne the more opeÌ„ For if any statute were made theron I thynke verely mo doutes questioÌ„s wolde rise vpoÌ„ that statute thaÌ„ dothe now whaÌ„ they be onely argued and iuged after the comon lawe ☞ If a preste haue woÌ„ne moche by saieÌ„g of masse / whether he may gyue those goodes or make a wyll of them The .xxxix. Chapitre STudeÌ„t In the sayd summe called SuÌ„ma rosella in the title clericus quartê° the thyrde article / is asked this question if a preste hath woÌ„ne moche goodes by sayenge of masse whether he may gyue those goodes or make a wyll of theÌ„ / whereto it is answered there that he may giue them or make a wyll of theÌ„ specially whaÌ„ a man bequeteth money for to haue masses sayd for hym / that lyke law is of suche thynges as a clerke wynneth by the reason of an office For it
is sayde there that suche thynges come to hym by reason of his owne persone / whiche saiÌ„ges I thinke accorde with the lawe of the realme But for as moche as in the sayd article in diuers other places of the sayd chapitre / in diuers other chapitres of the sayd summe is put great diuersitie betwene suche goodes as a clerke hathe by reason of his churche and suche goodes as he hath by reason of his person and that he muste dispose suche goodes as he hath by reason of his churche in suche maner as is appoiÌ„ted by the lawe of the churche / so that he maye nat dispose them so liberally as he may the goodes that come by reasoÌ„ of his owne persone / therfore I shall a litle touche what spirituall meÌ„ may do with theyr goodes after the lawe of the realme Fyrst a Bisshop of suche goodes as he hath with the deane the chapitre he may nether make gyfte nor byquest / but of suche goodes as he hath of his owne by reason of his churche or of the gifte of his auncestres or of any other / or of his patrimony he maye bothe make giftes byquestes lawfullye And an Abbot of the goodes of his church may make a gyfte the gyft is good as to the lawe But what it is in conscieÌ„ce that is after the cause intente qualitie of the gyfte / for if it be so moche that it notablie hurteth the house or the couent / or if he gyue away the bokes or the chalyces / or suche other thynges as belonge to the seruice of god / he offendeth in conscience / yet he is nat punisshable in the lawe / ne yet by a sub pena after some meÌ„ ne in none other wyse but by the lawe of the churche as a waster of the goodes of his monastery But neuertheles I will nat fully holde that opinion as to that that belongeth necessaryly to the seruice of god / whether any remedye lye agaynst hym or nat / but remyt it to the iugement of other And a deane a chapitre a mayster bretherne of goodes that they haue to them selfe And also of goodes that they haue with the chapitre bretherne the same diuersite holdeth as appereth before of a Bisshope the deane chapitre / excepte that in the case of a mayster bretherne the goodes shal be ordered as shal be assigned by the fundacion And moreouer of a parson of a churche vicar / chaunterie preest / or suche other / all suche goodes as they haue / as well suche as they haue by reson of the personage / vicarage / or chauÌ„tery / as that they haue by reason of theyr owne persone they maye lawfully gyue bequethe where they will after the comoÌ„ lawe And if they dispose parte amonge theyr parysshens parte to the byldinge of churches / or gyue parte to the ordinarie / or to poore men / or in suche other maner as is apoynted by the law of the churche they offende nat therein / oneles they thynke them selfe bounden therto by duetie by authorite of the lawe of the churche / nat regardynge the kiÌ„ges lawes / for if they do so it semeth they resiste the ordenaunce of god / whiche hath gyuen power to princes to make lawes But there as the Pope hath soueraintie in temporal thynges as he hath in spirituall thynges / there some saye that the goodes of prestes muste in conscience be disposed as is conteyned in the sayd summe / but that holdeth nat iÌ„ thê realme / for the goodes of spuÌ„al meÌ„ be teÌ„poral iÌ„ what maner so euer the come to theÌ„ / muste be ordered after the temporal law as the goodes of the teÌ„porall meÌ„ muste be How be it if there were a statute made iÌ„ this case of lyke effecte in many poiÌ„tes / as the law of the churche is I thynke it were a right good a profitable statute ☞ Who shall succede a clerke that dyeth intestate ⧠The .xl. Chapitre STudent In the sayd summe called rosella in the chapitre Clericus quartus the .vii. article / is asked this question / who shall succede to a clerke that dyeth intestate And it is answered that in goodes gotteÌ„ by reason of the churche the churche shall succede But in other goodes his kinnesmen shall succede after the order of the law / if there be nat kinnesmen than the churche shall succede And it is there sayd forther that goodes gotten by a canon seculer by reason of his churche or prebende shall nat go to his successour in the prebende / but to the chapitre But where one that is beneficed is nat of the congregacioÌ„ / but he hath a benefice clerely seperate / as if he be a parsone of a parysshe churche or is a president or an archedeacon nat beneficed by the chapitre / than the goodes gotteÌ„ by reason of his benefice / shall go to his successoure nat to the chapitre / none of these sayenges holde place in the lawes of Englande ¶ Doctour what is thaÌ„ the law if a paÌ„rsone of a churche or a vycar in the countrey dye intestate / or if a chanon seculer be also a parson haue godes by reason therof also by a prebende that he hath in a cathedrall church he dye intestate / who shall haue his goodes ¶ Student At the comon law the ordinarie in all these cases may administre the goodes after he must commit administracion to the next faythe full frendes of hym that is ded intestate that wyll desyre it as he is bounde to do where lay men that haue goodes dye intestate And if no maÌ„ desyre to haue administracion than the ordinarie may administre sethe dettes payde he muste beware that he paye the dettes after suche order as is appoynted in the comon law / for if he pay dettes vpon simple coÌ„tractes before an obligacion he shal be coÌ„pelled to pay the dette vpon the obligacion of his owne goodes if there be nat goodes sufficieÌ„t of hym that dyed intestate / though it be suffered in suche case that the ordinarie maye pay pouÌ„de pounde like that is to apporcion the goodes amonge the dettours after his discrecion / yet by the rigoure of the comon lawe he might be charged to hym that caÌ„ fyrste haue his iugement agaynst hym And ferthermore by that is sayde afore in the laste chapitre appereth if a Bisshope that hath goodes of his patrimony / or a mayster of a colage / or a deane of goodes that they haue of theyr owne onely to them selfe dye intestate / that the ordinarie shall commit administracion therof as before appereth if they make executours than the executours shall haue the ministracion thereof But the heyres nor the kynnesmeÌ„ by that reason onely that they be heyres or of kynne to hym that is decessed shall haue no medlyng with his goodes except it be by
into a towne that hath auctoritie to make attachementes of goodes vpon playntes of dette cÌ„ there vpon a playnte of dette made agaynste the seruant the maysters horse is atached by the officers thynkinge that the horse were his owne / bycause the seruaunt appereth nat the officers sease the horse as forfeyt / iÌ„ this case the lorde shall haue an accion of trespas agaynst the officers / this attachemeÌ„t for the det of his seruauÌ„t shall nat binde hiÌ„ cÌ„ but that an host or a keper of a tauerne shal be charged for theyr ghestes oneles it be done by theyr asseÌ„t or coÌ„mandement I do nat remembre that I haue rede it in the lawes of Englande ¶ Addition ☞ Whether a villayne or abonde man maye gyue away his goodes The .xliii. Chapitre DOctoure It appereth in the sayd suÌ„ne called Summa angelica in the citle donatio prima the .9 Paragrafe that a bonde man nor a religious maÌ„ / nor a monke / ne suche other that hath nothiÌ„g in propre may nat gyue but it be by the licence of theyr superiour / but that sayenge is nat as it is sayd there to be vnderstande of religious persones that haue lawfull ministracioÌ„ of goodes / for if they giue with a cause reasonable it is good / but without cause they may nat ⧠Also if they by the licence if theyr prelate with the councell of the more parte of the couent abyde at scole or go on pilgrimage they may gyue as other honest scolers pilgrymes be reasonably wonte to do / and they maye also gyue almes where there is great nede if they haue no tyme to aske licence ⧠Also if they se one in extreme necessite they may gyue almes though theyr superiours prohibite them / for than all thiÌ„ges be in comon by the lawe of god And therfore they be bounden for to do it / as appereth in the aforesayd summe called SuÌ„ma angelica in the title Elemosina the .6 Pagrafe Dothe nat the lawe of Englande agree with these diuersities ¶ Student For as moche as the question is onely made whether a villayne or a boÌ„de man may gyue awaye his goodes or nat And it semeth that after the forsayd Summe in the title whiche thou haste before reherced / that he ne none other that hath no propertie may nat gyue / whereby it appereth that the sayd Summe taketh it that a bondeman shulde haue no propertie in his goodes / that therfore his gyfte shulde be voyde I shall somwhat touche what propertie what autoritie a villayn hath in his goodes after the lawe of the realme / what auctoritie the lorde hath ouer them And I wyll leue the diuersities that thou hast remeÌ„bred before of religiouse persones to them that liste to treate ferther therin hereafter ⧠Fyrst if a villayne haue goodes either by his owne proper byenge sellynge / or otherwyse by the gyfte of other men / he hath as perfite a propertie also as 〈◊〉 interest in them / maye as lawfully gyue theÌ„ away as any free man hath may But if the lordes sease theÌ„ before his gifte than they be the lordes / the interest of the villayne therein is determined ⧠Also if the lorde sease parte of the goodes of his villayne in the name of all the goodes that the villayne hath or shall hereafter haue that seasure is good for all the goodes that he had at that tyme / thoughe they were nat there present at the tyme of the sesure But if goodes come to the villayne after the seasure he maye lawfully gyue them away nat withstandynge the sayde seasure ⧠Also if the lorde clayme all the goodes of the villayne and seasith no parte of theÌ„ that seasure is voyde / and the gyfte of the villayne is good nat withstandynge that seasure ⧠Also if a man be bounde to villayne in an obligacion in a certayne summe of money / the lorde seaseth the obligacion thaÌ„ the obligacion is his / but yet he can take no accion there vpon but in the name of the villayne / and therfore if the villayne release the dette the lord is barred by that release ⧠Also if a woman be a nyef / she maryeth a free man / the goodes immediately by the mariage be the husbandes / and the lorde shall come to laâ—e to make any seasure / if the husbaÌ„de in that case maketh his wyfe his executrix dyeth / and the wyfe taketh the same goodes agayne as executrix to her husbande / yet it shall nat be lawfull for the lorde to take them frome her thoughe she be a nyefe as she was before the maryage ⧠Also if goodes be gyuen to a maÌ„ to the vse of a villayne / the lorde seaseth those goodes / that seasure after some meÌ„ is good by the statute made in the .xix. yere of kiÌ„ge Henry the .vii. whereby it is enacted that the lord shall entre iÌ„ to laÌ„des wherof other persons be seased to the vse of his villayne they say that the same statute shal be vnderstande by equitie of goodes in vse / as well as of landes in vse ☞ Also if a villayn be made a preste / yet neuertheles the lord may sease his goodes laÌ„des as he might before And vntill the seses he may alien them gyue them awaye as he might before he was preste And in this case the lorde maye order hym so that he shall do hym suche seruice as belongeth to a preste to do before any other but he may nat put hym to no laboure nor other busines but that is honeste and lawfull for a preste to do ⧠Also if a villayn entre in to religion 〈◊〉 his yere of proffe he maye dispose his goodes as he might haue done before he toke the habitte vpoÌ„ hym And in likewyse the lorde maye sease his goodes as he myghte haue done before but if he aftre make executours be professed And the executours take the goodes to the perfourmaunce of the wyll than the lorde maye nat seise the goodes though the executours haue them to the perfourmaunce of the wyll of hym that is his villayne nor in that case the lorde may nat sease his bodye ne put hym to no maner of laboure but muste suffre hym to abyde in his religion vnder the obedience of his superiour as other religiouse persoÌ„s do that be no bondmen And the lord hath no remedye in that case for losse of his boÌ„d man but onely to take an accioÌ„ of trespas agaynst hym that receyued hym into religion without his licence / therevpoÌ„ to recouer dammages as shal be assessed by .xii. men Many other cases there be coÌ„cerniÌ„g the gyfte of the goodes of a vilayn wherof I wyll speke no more at thê tyme for this that I haue sayde suffiseth to shewe that the knowlege of the kynges lawe is right expediente to the good ordre of conscience coÌ„cernynge suche goodes â§
sāde that the owner if he proue the goodes within a yere a daye to be his shall haue thē whereby the sayde lawe of wreckes of the see is made more sufferable thā it was before / some thynketh in this case that this warrantie is no barre in cōscience though it be a barre in the law ¶ Studēt I pray the kepe that case of wrecke of the see ī thy remembraunce put it hereafter as one of thy questions thereupon shewe me thy ferther mynde therein / I shall with good wyll shewe the mynde / and as to this case that we be in nowe me thynketh the maxime wherby the warrātye shal be a barre is good resonable / for it semeth nat agaīst reason that a man shal be bounde as to tēporall thynges by the acte of his aūcestre to whome he is heyre / for lyke as by the lawe it is ordeyned that he shall haue aduauntage by the same auncestre haue al his landes by dissent if he haue any righte so it semeth that it is nat vnreasonable though the lawe for the priuity of blode that is bytwene them suffre hym to haue a disaduauntage by the same auncestre / but if the maxime were that if any of his auncestres though he were nat heyre to hī made suche a warrantye that it shulde be a barre I thynke that maxime were agaynst conscience / for in that case there were no groūde nor cōsideraciō to proue howe the sayd maxime shulde haue a lawfull begynnyng wherefore it were to be taken as a maxim agaynst the lawe of reason / but me thynketh it is otherwyse ī this case for the reason that I haue made before ¶ Doctour If the father bynde hym his heyres to the paymente of a dette dye / in that case the sone shall nat be bounde to pay the det oneles he haue asses by discent fro his father And so I wolde agree that if this mā had asses by discent fro the aūcestre that made the warranty that he shulde haue be barred / but elles me thynketh it shulde stande hardly with conscience that it shulde be a barre ¶ Student In that case of the obligaciō the law is as thou sayst / the cause is for that the maxime of the law in that case is none other but that he shal be charged if he haue asses by discente / but if the maxyme had ben generall that the heyre shulde be bounden in that case without any asses / or if it were ordeyned by statute that it shulde be so / I thynke that bothe the maxime the statute shulde well stande with consciēce And lyke law is where a mā is vouched as heyre / he may entre as he that hath nothynge by discent / but where he claymeth the lande in his owne right there the warrantie of his auncestre shal be a barre to hī though he haue no assesse fro the same aūcestre / though it be sayd in Ezechiel the .xviii. chapitre That the sone shal nat bere the wyckednes of the father / that is vnderstande spiritually But as to tēporall goodes the opinion of doctours is / that the sone somtyme maye bere the offence of his father ¶ Doctour Nowe that I haue herde thy mynde in this case I wyll take aduisement therein tyll a better leasure And wil nowe procede to another question ¶ Studēt I praye the do as thou sayste I shall with good wyll make answere thereto as well as I can ☞ The thyrde question of the Doctoure if a man procure a collaterall warrātye to extincte a right that he knoweth a nother man hath to lāde / whether it be a barre in conscience as it is ī the lawe or nat ⸫ The .l. Chapitre DOctoure A man is disseased of certayne lāde the disseasoure selleth the lāde c̄ the aliene knowynge of the disseason optayneth a release with a warātye of an auncrestre colaterall to the disseasie that knoweth also the right of the disseasye The auncestre colaterall dyeth after whose deth the warrātye discendeth vpon the disseasye / whether maye the aliene in that case holde the lande in conscience as he may by the lawe ¶ Studēt Syth the warantye is discended vpon hym wherby he is barred in the lawe / me thynketh that he shall also be barred in conscience / and that this case is lyke to the case in the next chapitre before / wherein I haue sayd that as me thynketh it is a barre in conscience ¶ Doctour Though it might be takē for a barre in conscience in that case / yet me thynketh in this case it can nat / for in that case the longer brother entred as heyr knowynge none other but that he was heyre of right / after whan he solde the lāde the byer knewe nat but that he that solde it had good right to sell it / so he was ignoraunt of the title of the eldest brother and that ignoraunce came by the defaut absence of hym selfe that was the elder brother But in this case as well the byer as he that made the colaterall warrātie knew the righte of the disseasye dyd that they coulde to extincte that right / so they dyd as they wolde nat shulde haue be done to them / so it semeth that he that hath the lāde may nat with cōsciēce kepe it ¶ Student Though it be as thou sayste that all they offended in opteynyng of the sayd colaterall warrantie / yet suche offence is nat to be cōsidered in the lawe but it be in very speciall cases / for if suche alegiaūce shulde be accepted in the law / relesses other writtinges shuld be of smal effecte / vpō euery light surmise all writtinges might come ī triall whether they were made with cōsciēce or nat Therfore to auoyde that incōueniēce the law will driue the partye to āswere onely whether it be his dede or nat / nat whether the dede were made with consciēce or agaynst conscience / though the partye may be at a mischyefe thereby / yet the lawe wyll rather suffre that mischiefe thā the sayd inconuenience And lyke law is if a woman couert for drede of her husbande by cōpulcion of hym leuye a fyne / yet the woman after her husbādes dethe shall nat be admitted to shewe that matter in auoydynge of the fyne for the incōueniēce that might folowe therupon And after the opinion of many men there is no remedye in these cases in the chauncery for they saye that were the comon lawe in cases concernyng enheritaunce putteth the party fro any auerment for eschewynge of an inconuenience that might folowe of it amonge the people / that if the same inconuenience shulde folowe in the chauncery if the same matter might be pleaded there that no sub pena shulde lye in suche cases / so it is in the cases before reherced For as moch vexacion / delay / costes / expences
of the byll is to enquyre whether he dyd the felony withiÌ„ the shyre or no / therfore the iustices before whome suche inditemeÌ„tes be takeÌ„ most comoÌ„ly enfourme the Iury that they are bouÌ„de to regarde the effecte of the byll nat the fourme And therfore there is no vntrouthe iÌ„ this case neyther in hym that made the byll ne yet iÌ„ the iury as me semeth ¶ Doctour But if the partye that ought the horse bryng an accion of trespas declareth that the defendaunt toke the horse with force armes where he toke hiÌ„ without force armes Howe may the playntyfe there be excused of an vntruthe ¶ StudeÌ„t And if the plaiÌ„tyfe surmit an vntruthe / what is that to the court or to the law / for they must beleue the playntyfe tyll that that he sayth be denied by the defendant And yet as this case is there is no vntruth in the playntyfe to say he toke the horse with force armes thoughe he came neuer so secretely withoute weapon / for euery trespas is in the lawe done with force armes / so that if he be attaiÌ„ted fouÌ„de gyltie of the trespas he is at taynted of the force armes And syth the lawe adiugeth euery trespasse to be done with force therefore the playntyfe saythe trewely that he toke hym with force as the lawe meneth to be force For thoughe he toke the horse as a fellon yet vpon that felonouse takynge the owner may take an accion of trespasse if he wyll for euery fellony is a trespasse and more And so I haue shewed the some parte of my mynde to proue that in those cases there is no vntrouthe neyther in the parties / neyther in the Iurye / nor in the lawe lawe Neuerthelesse at a better leasure I wyll shewe the my mynde more fully theriÌ„ with good wyl as thou haste promysed me to do in the cases of the colours of the assise of the oustre that be before rehersed ☞ The .viii. question of the Doctour whether the statute of .xlv. of Edwarde the thyrde of Silua cedua stande with coÌ„science The .lv. Chapitre DOctour In the .xlv. yere of the reygne of kynge Edwarde the thyrde / it was enacted that a prohibicioÌ„ shuld lye where a man is empleded in the courte cristien for dismes of woode of the age of xx yere or aboue by the name of Silua cedua / howe may that statute stande with conscience that is so directely agaynst the lybertye of the churche that is made of suche thynges as the parlyament had no auctorite to make any lawe of ¶ StudeÌ„t It appereth in the sayde statute that it is enacted that a prohibicion shulde lye in that case as it had vsed to do before that tyme if the prohibicion lay by a prescripcioÌ„ before that statute why is nat thaÌ„ the statute good as a confirmacion of that prescripcion ¶ Doctour If there were suche a prescripcion before that statute that prescripcion was voyde / for it prohibiteth the payment of tythes of trees of the age of .xx. yere or aboue / payenge of tythes is grounded as well vpon the lawe of god as vpon the lawe of reason agaynste tho lawes liet no prescripcion as it is holden moste comoÌ„ly by all meÌ„ ¶ StudeÌ„t That there was suche a prescripcion before the sayde statute / that if a man before the sayd statute had ben suyd in the spirituall courte for tythes of wode of the age of .xx. yere or aboue that a prohibicion lay / appereth in the sayd statute / it can nat be thought that a statute that is made by authoritie of the hole realme / as well of the kynge of the lordes spirituall teÌ„porall as of all the comons / will recyte a thynge agaynste the trouth And ferthermore I can nat se how it can be grounded by the lawe of god or by the lawe of reason that he tenthe parte shulde be payed for tythe none other porcion but that but I thynke that it be grouÌ„ded vpoÌ„ the law of reason that a maÌ„ shulde gyue some reasonable porcion of his goodes temporall to them that myninstre to hym thynges spirituall / for euery man is bouÌ„de to honour god of his proper substâ—â—ce / the gyuyng of suche porcion hath nat ben onely vsed amonge faythfull people / but also amoÌ„g vnfaythfull people as it appereth Genesis .xlvii. where corne was gyueÌ„ to the prestes in Egipte the or comoÌ„ barnes And saint Poule in his epistles affermeth the same in many places / as in his fyrste epistle to the Corinthies the .ix. chapitre where he saythe he that worketh in the churche shall eate of that that belongeth to the churche And in this epistle to the Galathes the .vi. chapitre he sayth / let hiÌ„ that is instructed in spirituall thynges departe of his goodes to hym that iÌ„structed hym And sainte Luke in the .x. chapitre sayth that the workmaÌ„ is worthy to haue his hyre / all whiche saynges may right coÌ„ueniently be taken applied to his purpose that spiritual men whiche ministre to the people spirituall thynges / ought for theyr ministracion to haue a competent lyuinge of them that they minister to But that the x. parte shulde be assigned for suche a porcioÌ„ neyther more nor lesse I can nat perceyue that that shulde be grouÌ„ded by the law of reason nor immediatly by the law of god for before the law writteÌ„ there was no certayne porcioÌ„ assigned for the spirituall ministres neyther the .x. parte nor the .xii. parte vnto the tyme of Iacob / for it appereth Gene. xxviii that Iacob auowed to paye Dismes whiche was amonge the Iewes for the .x. parte / if our lorde prospered hym in his iourney / if the .x. parte had beÌ„ his dutye before that auowe / it had ben in vayne to haue auowed it / and so it had 〈◊〉 it had ben grouÌ„ded by the law of reason / as to that that is spokeÌ„ in the Euangelistes in the newe law of tythes / it belongeth rather to the gyuinge of tythes in the tyme of the olde lawe than of the newe lawe as appereth Mathe .xxiii. Lu. xi where our lorde speketh to the phariseis sayth / wo be to you phariseis that sythe mynies / rewe / herbes / forgette the Iugement and the charitie of god / these it behoueth you to do and the other nat to omitte / that is to say / it behoueth you to do iustice and charite of god an nat to omitte payenge of tythes though it be of smale thynges as of myntes / rewe / herbes / suche other And also that that the pharisei saythe Luce .xvii. I paye my tythes of all that I haue / is to be ferred too the olde lawe nat to the tyme to the tyme of the newe lawe Therfore as I take it that the paynge of tythes or of a certayne porcion to spirituall meÌ„ for theyr
spirituall ministracion to the people / hath ben grounded in diuers maners Fyrste before the lawe written a certayne porcion sufficient for the spirituall ministers was due to them by the lawe of nature / whiche after them that be lerned in the lawe of the realme is called the lawe of reason / that porcion is due by all lawes in the lawe written the Iewes were bounde to gyue the .x. parte to theyr prestes as well by the sayde auowe of Iacob as by the lawe of god in the olde testamente called the Iudicials And in the newe law the payenge of the tenth parte is by a lawe that is made by the churche And the reason wherfore the teÌ„the parte was ordeyned by the churche to be payde for the tythe was this There is no cause why the people of the new lawe ought to paye lesse to the ministers of the newe lawe / than the people of the olde testament gaue to the ministers of the olde testamente / For the people of the newe lawe be bounde to greater thynges / than the people of the olde law were as it appereth Mathe .v. where it is sayde / but your good workes habouÌ„de aboue the workes of the scribes the pharisees / ye maye nat entre in to the kyngdome of heuen And the sacrifice of the olde law was nat so honourable as the sacrifice of the new law is / for the sacrifice of the olde lawe was onely the figure / the sacrifice of the new lawe is the thynge that is figured / that was the shadowe / this is the trouth And therfore the churche vpon that reasonable coÌ„sideracion ordeyned that the .x. parte shuld be payde for the sustenaunce of the ministers in the newe lawe as it was for the sustenaunce of the ministers in the olde law / so that lawe with a cause may be encreased or minisshed to more porcion or to lesse as shal be necessary for them ¶ Doctoure It appereth Genesis .xiiii. that Abraham gaue to Melchisedech dismes that is taken to be the .x. parte that was longe before the lawe writteÌ„ / therfore it is to suppose that he dyd that by the lawe of god ¶ Student It appereth nat by any scripture that he dyde that by the commaundement of god / ne by any reuelacioÌ„ And therfore it is rather to suppose that he dyd parte of duyte parte of his owne fre wyl / for in that he gaue the dismes / as a resonable porcioÌ„ for the sustenauÌ„ce of Melchisedech his ministers / he dyd it by commaundemeÌ„t of the lawe of reason as before appereth / but that gaue the .x. parte that was of his free wyll / bycause he thought it sufficient resonable but if he had thoughte the .xii. parte or the .xiii. parte had suffised might haue gyuen it that with good conscience And so I suppose that in the newe law the gyuinge of the .x. parte is by a law of the churche nat by the law of god / oneles it be taken that the lawe of the church is the lawe of god / as it is somtyme taken to be / but nat appropriatly nor immediatli for that is takeÌ„ appropriatly to be the law of god / that is conteyned in scripture that is to say in the olde testameÌ„t or in the new ¶ Doctour It is somwhat daungerous to saye that tythes be grounded onely vpoÌ„ the lawe of the churche / for some men as it is sayd say that maÌ„nes law byndeth nat iÌ„ conscience / so they might happen to take a boldnes therby to denye theyr tythes ¶ StudeÌ„t I truste there be none of that opinion / if there be it is greate â—ytye And neuertheles they may be coÌ„pelled in that case by the law of the churche to pay their tythes as well as they shuld be if payenge of tythes were grounded meerely vpoÌ„ the lawe of god ¶ Doctour I thynke well it be as thou sayste therfore I holde me coÌ„tended therin But I praye the shewe me thy mynde in this question / if a hole countrey prescribe to pay no tythes for corne or hey nor suche other / whether thou thynke that that prescripcion is good ¶ StudeÌ„t That question dependeth moche vpon that that is sayde before / for if payenge of the .x. parte be by the lawe of reason or by the lawe of god / than the prescripcion is voyde but if it be by the lawe of man / than it is a good prescripcion so that the ministers haue a syfficient porcion beside ¶ Doctoure IohaÌ„ gerson whiche was a doctour of diuinite in a treatice that he named regule morales sayth that dismes be payd to prestes by the lawe of god ¶ StudeÌ„t The wordes that he speketh there of that matter be these Solutio decimarum sacerdotibê° est de iure diuino quarenê° I de sustenteÌ„tur sed quotaÌ„ haÌ„c vel illaÌ„ assignare aut iÌ„ alios redditus coÌ„mutare positiui iurê existit That is thus moche to say / the payeÌ„ge of dismes to prestes is of the lawe of god / that they maye thereby be susteyned / but to assigne thê porcioÌ„ or that / or to chauÌ„ge it to other rentes / that is by the lawe positiue / if it shulde be taken that by that worde decimarum whiche in englysshe is called dysmes or tythes / that he ment the tent parte that that .x. parte shulde be payde for tythe by the lawe of god / than is the senteÌ„ce that foloweth after agaynst that sayenge / for as it appereth aboue the text sayth afterwarde thus / but to assigne this porcion or that or to / chaunge it in to other rentes belongeth to the lawe positiue / that is to the law of man / if the .x. parte were assigned by god / than may nat a lesse parte be assigned by the lawe of man for that shuld be contrary to the lawe of god / so it shuld be voyde And me thynketh that it is nat likely that so famous a clerke wolde speke any sentence contrary to the law of god or contrary to that he had spoken before / to proue that he mente nat by that terme decime that dismes shulde alway be takeÌ„ for the tenth parte / yet appereth in the .iiii. parte of his workes in the .xxxii. title litte ray / where he sayth thus NoÌ„ vocatur porcio curatis debita propterea decime eo qd semper sit decima pars immo est interduÌ„ vicesima aut tricesima That is to say the porcion due to curates / is nat therfore called dismes for that it is alway the .x. parte for somtyme it is the .xx. or the .xxx. parte / so it appareth that by this worde decimarum he mente in the texte before reherced a certayne porcion and nat precisely the .x. parte / that that porcion shulde be payde to prestes by the lawe of god to susteyne them with / takynge as
fre men / then they may also byqueth laÌ„des to mortmayne ⧠Also in gauelkynde though the father be hanged the sone shal enheryt / for theyr custome is the father to the bough / the son to the ploughe ⧠Also in some countres the wyfe shall haue the halfe of the husbandes landes in the name of her dowrye as longe as she lyueth sole ⧠Also in some couÌ„tre the husbaÌ„de shall haue the halfe of the enheritauÌ„ce of hê wyfe / though he haue no yssue by her ⧠Also in some couÌ„tre an Infante when he is of the age of .xv. yere maye make a feoffement / and the feoffement good And in some countre when he can mete an elle or clothe ∴ ☞ Of the .vi. grounde of the lawe of Englande The .xi. Chapitre STudent The .vi. grouÌ„de of the lawe of EnglaÌ„de standeth in dyuers statutes made by our soueraygne lord the kynge his progenitours / by the lordes spiritual temporall / the coÌ„mons in diuers parlyamentes in suche cases where the law of reason / the law of god / customes / maximê / ne other grouÌ„des of the law semed nat to be sufficieÌ„t to punysshe euyll meÌ„ / to rewarde good meÌ„ And I remeÌ„bre nat that I haue sene any other grouÌ„des of the law of EnglaÌ„de / but onely these that I haue before remeÌ„bred Furthermore it appereth of that I haue sayd before that oft tymes two or thre grouÌ„des of the lawe of EnglaÌ„de must be ioyned togyther / or that the playntyfe caÌ„ open declare his right / as it may appere by thê example If a maÌ„ entre in to another maÌ„nes lande by force after maketh a feffemeÌ„t for maiÌ„tenauÌ„ce to defraunde the pleyntyfe froÌ„ his accion In this case it appereth that the sayd vnlawfull entre is ê“hibite by the law of reason / but the playntyfe shall recouer treble damages / that is by reason of the statute made in the .viii. yere of kyng Henry the .vi. the ix Cha. And that the dammages shal be seased by .xii. men that is by the custome of the realme And so in this case .iii. grouÌ„des of the law of Englande mayntene the playntyfes accion And so it is in diuers other cases that nede nat to be remeÌ„bred now thus I make an ende for this tyme / to speke any ferther of the groundes of the lawe of Englande ¶ Doctoure I thaÌ„ke the for the greate payne that thou haste takeÌ„ therin / neuertheles for as moche as it appereth that thou haste sayde before that the lerned men of the lawe of Englande pretende / to veryfie that the law of Englande wyll nothynge do / ne attempte agaynst the law of reason / nor the law of god / I pray the aÌ„swere me to some questioÌ„s grouÌ„ded vpoÌ„ the law of EnglaÌ„de howe as the thynketh the law may staÌ„de with reason or coÌ„scieÌ„ce in theÌ„ ¶ StudeÌ„t Put the case I shal make answere theriÌ„ as well as I can ☞ The fyrst question of the Doctoure of the lawe of Englande and conscieÌ„ce The .xii. Chapitre DOctoure I haue harde say / that if a man that is bouÌ„de in an obligacioÌ„ paye the money but he taketh no acquitaunce or if he take one it happeneth hiÌ„ to lese it / that in that case he shall be compelled by the lawes of Englande to paye the money agayne / howe maye it be sayd then / that that law staÌ„deth with reason or conscience / for as it is grounded vpon the law of reason that dettes ought of right to be payde / so it is grouÌ„ded vpon the law of reason as me semeth that wheÌ„ they be payde that he that payed them shulde be discharged ¶ Student Fyrste thou muste vnderstande that it is nat the law of EnglaÌ„de / that if a maÌ„ that is bouÌ„de in an obligacion pay the money without acquitaunce / or if he take acquitauÌ„ce lese it that therfore the law determineth that he ought of right to paye the money eftesones / for that lawe were bothe agaynste reason conscience / but trougth it is that there is a generall maxime in the lawe of Englande / that in an accion of dette sued vpon an obligacion / the defendaunt shall nat plede that he oweth nat the money / ne can in no wyse discarge hiÌ„slefe in that accion / but he haue acquitaunce or some other writtynge sufficiente in the lawe or some other thynge lyke / witnessynge that he hath payde the money / that is ordayned by the law to auoyde a great inconuenience that els myght happen to come to many people that is to say that euery maÌ„ by a nude paroll and by a bare auerment shulde auoyde an oblygacyon / wherfore to auoyde that inconuenience the law hath ordayned that as the defendauÌ„t is charged by a sufficieÌ„t writting / that so he must be discharged by sufficieÌ„t writtynge / or by some other thynge of as hygh auctoritye as the obligacion is And though it may folowe thervpon that in some particuler case a man by occasion of that generall maxime may be compelled to pay the money agayne that he payde before / yet neuertheles no defaute can be therfore assigned in the law For lyke as makers of lawes take hede to suche thynges as maye oft fall / and do moste hurte amonge the people rather theÌ„ to particuler cases So in lykewyse the generall groundes of the lawe of Englande / hede more what is good for many / then what is good for one singuler person onely And because it shulde be a hurte to many / if an obligacion shulde be so lightly auoyded by worde Therfore the law specially preueÌ„teth that hurte vnder suche maner as before appereth And yet intendeth nat / nor commauÌ„deth nat that the money of ryghte ought to be payde agayne / but setteth a general rule / whiche is good and necessary to all the people / that euery man maye well kepe / without it be through his owne defaute / if suche defaut happen in any persone / wherby he is without remedie at the common lawe yet he may be holpen by a Subpena / so he maye in many other cases where conscieÌ„ce serueth for hym / that were to loÌ„ge to reherce now ¶ Doctour But I praye the shewe me vnder what maner a maÌ„ may beholpen by conscience And whether he shal be holpeÌ„ in the same courte or in an other ¶ Student Because it can nat be well declared where a maÌ„ shal be holpen by conscience where nat / but it be fyrst knowen what conscience is therfore because it perteyneth to the moste proprelye / to treate of the nature and qualitie of conscience / therfore I praye the that thou wylte make me some brief declaracion of the nature qualitie of conscieÌ„ce and then I shall answere to thy question as well as I caÌ„ ¶ Doctour I wyll with good wyll do as thou sayste / to the inteÌ„t that thou mayste the