¶ Student I wyll with good wyll ⧠Whether an abbot may with coÌ„scieÌ„ce present to an aduouson of a churche that beloÌ„geth to the house without assente of the couent The .xxvi. chapitre DOctour It appereth iÌ„ the chapitre Eanoscitur de hus que fiunt a prelates / the whiche chapitre is recited in the summe called Summa angelica in the title abbas the .xxvii. article that he maye nat without any costume or any speciall priuilege do helpe there iii. Student Trouthe it is that there is suche a decretale / but they that be lerned in the lawe of Englande holde that decretale byndeth not in thys realme / and thys is the cause why they do holde that oppynyon By the lawe of the realme the hole disposicion of the laÌ„des and goodes of the abbey is the abbot only for the tyme that he is abbot not in the couent / for they be but as deed persones iÌ„ the lawe therfore the abbot shall sue be sued onely without the coueÌ„t do homage fealtie atturne make leases preseÌ„t to aduousons onely in his owne name / they saye farther that this aucthoritie can not be taken fro hym but by the lawe of the realme / and so they say that the makers of that decretale excedyd theyr power wherfore they say it is not to be holden in conscience / no more than if a decre were made that a lease for terme of yeres or at wyll made by the abbot withoute the coueÌ„te shuld be immedyatly voyde / so they thynke that the abbot may iÌ„ thys case preseÌ„t iÌ„ his owne name without offeÌ„ce of coÌ„science by cause the sayd decretale holdeth nat iÌ„ this realme ¶ Doctoure But many be of oppynyoÌ„ that no man hath aucthorytye to present in ryght and conscience to any benefice with cure but the pope or he that hath his aucthorytye thereiÌ„ deriuied fro the Pope for they saye that for as moche as the Pope is the vycar general vnder god hath the charge of the soules of all people that be in the floke of Christes churche it is reasoÌ„ that syth he cannat ministre to all ne do that is necessarie to all the people for theyr soule helthe in his owne persoÌ„ that he shall assygne deputyes for his dyscharge iÌ„ that behalfe / bycause patrons clayme to present to churches in this realme by theyr owne ryght without tytle deriuied fro the Pope they saye that they vsurpe vpon the popes authoritie / therfore they conclude that thoughe the abbot haue title by the lawe of the realme to present iÌ„ this case iÌ„ his owne name that yet bycause that title is against the popes prerogatiue that that title ne yet the lawe of the realme that mayntenyth that tytle holdeth not iÌ„ coÌ„scyence And they say also that it belongeth to the lawe canon to determine the ryght of pÌ„sentmeÌ„t of benefices for it is a thynge spirituall and belongeth to the spirituall iurisdiccioÌ„ as the depryuacioÌ„ fro a benefice doth so they saye the sayd decretale biÌ„deth iÌ„ coÌ„scyeÌ„ce thoughe iÌ„ the lawe of the realme it binde nat ¶ StudeÌ„t As to thy fyrste coÌ„sideracion I wolde ryght well agre that if the patroÌ„s of churches in this realme claymed to put encumbentes in to suche churches as shulde fall voyde of theyr patronage without pÌ„seÌ„ting them to the bysshop or if they claymed that the bhysshop shold admit suche encumbent as they shulde present without any examinacion to be made of his abylite in that behalfe / that that clayme were agaiÌ„st reasoÌ„ and coÌ„scyeÌ„ce for the cause that thou hast rehercyd but for as moche as the patroÌ„s iÌ„ thê realme clayme no more but to pÌ„sent theyr encuÌ„bentes to the bisshop theÌ„ the bysshop to examin the abylitie of the encumbeÌ„t / if he fynde hym by the examinacyoÌ„ nat able to haue cure of soule / he theÌ„ to refuse hiÌ„ the patrone to preseÌ„t another that shal be able / if he be able thaÌ„ the bisshop to admit hiÌ„ iÌ„stitute hiÌ„ iÌ„ducte him I thiÌ„ke that this clayme theyr pÌ„sentemeÌ„tes therupon stande with good reason and coÌ„scyence / and as to the seconde consideracyoÌ„ it is holden in the lawes of the realme that the right of preseÌ„tement to a churche is a temporall enherytauÌ„ce shall desceÌ„de by course of enheritauÌ„ce fro heyre to heyre as laÌ„des tenementes shall shall be takeÌ„ as an asses as laÌ„des tenemeÌ„tes be for the tryall of the ryght of patronages be ordeyned iÌ„ the lawe diuers accyoÌ„s for theÌ„ that be wroÌ„ged in that behalfe as writtes of ryght of aduouson Assises of â—aren presentement Quare impedit diuers other / whiche alwaye withoute / time of mynde haue ben pledyd in the kynges courtes as thinges preteyning to his crowne roiall dygnytie / and therfore they saye that in this case his lawes ought to be obeyed in lawe and conscience ¶ Doctoure If it come in variaunce whether he that is so pÌ„sented be able or nat able be whome shall the abilitie be tried ¶ StudeÌ„t if the ordinarie be nat partie to the accyon it shall be tried be the ordinarie / and if he be partie it shall be tryed be the metropolitane ¶ Doctoure Than the lawe is more reasonable in that poynt than I thought it had ben but iÌ„ the other poynt I will take aduisement in it tyll a nother tyme / and I pray the shewe me thy mynde in thê poynt if an abbot name his couent with hym in his presentacyon doth that make the pÌ„sentacion voyde in the lawe or is the presentacyon good that nat withstaÌ„ding ¶ Student I thynke it is nat voyd therfore but the namyng of theym is voyde a thyng more thaÌ„ nedeth / for if the abbot be disturbed he muste brynge hys accion in hys owne name withoute the couente ¶ Doctoure Then I perceyue well that it is nat prohibit in the lawe of Englande but that the abbot may name the couent iÌ„ his presentacion with hym / and also take theyr assent whom he shall presenet if he wyll / and then I holde it the surest waye that he so do / for in so doynge he shall nat offeÌ„de nother in lawe nor coÌ„scieÌ„ce ¶ Student To take the asseÌ„t of the coueÌ„t whome he shall presente and to name them also in the presentacyon / knowynge that he may do otherwyse bothe iÌ„ lawe and conscience if he will / is no offeÌ„ce But if he take theyr assent or name them with hym in the presentacyon thinkynge that he is so bounde to do in lawe and conscyence / settyng a coÌ„science where none is / and regareth nat the lawe of the realme that wyll dyscharg his conscyence in this behalfe if he will so that he present an able man as he maye do without theyr assent / there is an erroure and offence of conscynce in the abbot And in lyke wise if the abbot preseÌ„t iÌ„ his owne name / and therfore the couent
¶ The fyrst dialogue in Englisshe / with newe additions ✚ Here after foloweth the fyrste Dyaloge in Englysshe / betwyxte a Doctour of Diuinite / and a StudeÌ„t in the lawes of EnglaÌ„de of the groundes of the sayde Lawes / of conseyence / newly corrected eft sones Enprynted with new additions ☞ The Introduccion A Doctoure of diuinitie that was of greate acquayntaunce / familiaritie with a Student in the lawes of Englande sayde thus vnto hym / I haue had great desyre of longe tyme to knowe where vpoÌ„ the law of Englande is grounded / but bycause moche parte of the lawe of EnglaÌ„de is written in the frenche tonge Therfore I can nat through myne owne studye atteygne to the knowlege therof for in that tonge I am nothynge experte And bycause I haue always founde the a faythfull freÌ„de to me in all my busynes Therfore I am bolde to come to the before any other to knowe thy mynde what be the very grouÌ„des of the lawe of Englande as thou thynkest ¶ Student that wolde aske a great leasure / it is also aboue my connynge to do it Neuerthelesse that thou shalt nat thynke that I wolde wilfully refuse to fulfyll thy desire I shall with good wyll do that in me is to satisfie thy mynde / but I pray the that thou wylte fyrste shewe me somwhat of other lawes that pertayne moste to this matter that Doctoures treate of howe lawes haue begonne And then I wyll gladly shewe the as me tynketh what be the grouÌ„des of the lawe of EnglaÌ„de ¶ Doctoure I wyll with good wyl do as thou sayste wherfore thou shalt vnderstaÌ„de that Doctours treate of foure lawes / the whiche as me semeth pertayne moste to this mater The fyrste is the law eternall The secoÌ„de is the lawe of nature of reasonable creature / the whiche as I haue harde saye is called by them that be lerned in the lawe of EnglaÌ„de the law of reason The thyrde is the law of god The fourth is the lawe of man And therfore I wyll fyrste treate of the law eternall ☞ Of the lawe eternall The fyrste Chapitre DOctoure lyke as there is in euery artificer a reason of suche thynges as are to be made by his crafte / so lyke â—â—se it behoueth that in euery gouernour there be a reason afore syght in the gouernour of suche thynges as shal be ordered done by hym to theÌ„ that he hath the gouernauÌ„ce of And for as moche as almightye god is the creatour maker of all creatures / to the which he is compared as a workemaÌ„ to his workes And is also the gouernour of all dedes and mouynges that be founde in any creature Therfore as the reason of the wysdome of god in asmoche as creatures be creat by hym hath the reason foresight of all craftes warkes that haue ben or shal be / so the reason of the wysdome of god mouynge all thynges by hym made to a good ende / opteyneth the name reason of a law / that is called the lawe eternal And this law eternall is called the fyrste lawe / it is well called the fyrste / for it was before all other lawes And all other lawes be deriuied of it / whervpon saynt Augustin sayth in his fyrste boke of fre arbytrement that in temporall lawes nothynge is rightwyse ne lawfull / but that the people haue deriuied to them out of the lawe eternall wherfore euery man hath right tytle to haue that he hath rightwysely of the rightwyse Iugement of the fyrste reason / whiche is the lawe eternall ¶ Student but howe may this lawe eternall be knowen / for as the Apostle writtet in the .v. chapitre of his fyrste Epistle to the Corynthies QuesuÌ„t dernemo scit nisi spiritus dei That is to say no man knoweth what is in god / but the spirite of god / wherfore it semeth that he openeth his mouth in to heueÌ„ that attempteth to know it ¶ Doctoure this lawe eternall no man may knowe as it is in it selfe / but onely blessed soules that se god face to face / but almyghty god of his goodnes sheweth of it as moche to hê creatures as is necessary for them / for els god shulde bynde his creatures to a thyng inpossible whiche may in no wyse be thoughte in hym Therfore it is to vnderstaÌ„de that thre maner of wayes almightye god maketh this lawe eternall knowen to his creatures reasonable Fyrste by the light of naturall reason Seconde by heueÌ„ly reuelacion Thyrdly by the ordre of a prince or of any other secoÌ„darie gouernour that hath power to bynde his subgectes to a lawe And whan the lawe eternall or the wyll of god is knowen to his creatures resonable by the lighte of natural vnderstandynge / or by the light of naturall reason / then it is called the lawe of reason And when it is shewed by heuenly reuelacion in suche maner as hereafter shall appere / then it is called the lawe of god And when it is shewed vnto hym by the ordre of a prynce / or of any other secundarye gouernoure that hathe power to set a lawe vpon his subgectes / then it is called the lawe of maÌ„ though originallie it be made of god / for lawes made by man / that hath receyued therto power of god be made by god Therfore the sayd thre lawes that is to saye / the lawe of reason / the lawe of god / the lawe of man the whiche haue seuerall names after the maner as they be shewed to man / be called in god one lawe eternall And this is the lawe of whome it is written ProuerbioruÌ„ octauo / where it is sayd ♣ Perme reges regnant et leguÌ„ conditores iusta descernuÌ„t that is to saye by me kynges reygne / makers of lawes descerne the trouth And this sufficeth for this tyme of the lawe eternall ☞ Of the lawe of reason / the whiche by Doctoures / is called the law of nature of reasonable creature ⸫ The .ii. Chapitre DOctoure Fyrste it is to be vnderstaÌ„de / that the lawe of nature maye be considered in two maners / that is to say generally specially / when it is coÌ„sidered generally / then it is referred to al creatures / aswel resonable as vnresonable / for all vnresonable creatures lyue vnder a certayne reule to them gyuen by nature / necessarie for them to the conseruacion of theyr beyng / but of this lawe it is nat our intent to treate at this tyme. The lawe of nature specially considered whiche is also called the lawe of reason pertaineth onely to creatures resonable that is maÌ„ / which is create to the ymage of god And this lawe ought to be kept aswell amonge Iewes gentels / as among cristen meÌ„ And this lawe is alway good rightwyse styryng enclynyng a man to good / abhorrynge euyll as to the orderynge of the dedes of maÌ„ it is preferred
lawe of Englande The .vi. Chapitre STudent The secoÌ„de grounde of the lawe of Englande is the lawe of god therfore for punisshement of them that offended agaynst the law of god / it is enquered in many courtes in this realme / if any holde any opynions secretely or in any other maner agaynst the trewe catholicall faythe And also if any generall custome were directly agaynste the lawe of god / or if any statute were made directly agaynst it / as if it were ordayned that no almesse shulde be gyuen for no necessitie that custome statute were voyde Neuer thelesse the statute made in the .xxiii. yere of kyng Edwarde the .iii. wherby it is ordayned that no man vnder payne of ImprysonemeÌ„t shall gyue any almesse to any valyaunt beggers that may well laboure that they may so be compelled to laboure for theyr lyuynge is a good statute / for it obserueth the inteÌ„t of the law of god And also by auctoritie of this lawe there is a grounde in the lawes of Englande / that he that is accursed shall maynteyne no accion in the kynges courte / except it be in very fewe cases so that the same excoÌ„municacion be certified before the kynges Iustices in suche maner as the lawe of the realme hath appoynted And by the auctoritie also of this grounde / the lawe of Englande amitteth the spirituell IurisdiccioÌ„ of dysmes and offerynges And of all other thynges that of righte belonge vnto it And receyueth also all lawes of the Churche dewly made and that excede nat the power of them that made them In so moche that in many cases it behoueth the kinges Iustices to iuge after the lawê of the Churche ¶ Doctoure Howe may that be that the kynges Iustices shulde iuge in the kynges courtes after the lawe of the Churche / for it semeth that the Churche shuld rather gyue iugemente in suche thynges as it may make lawê of theÌ„ the kyngê Iusticê ¶ StudeÌ„t That may be done in many cases / wherof I shall for an exaÌ„ple put this case If a writ of right of warde be brought of the bodye c. And the tenauÌ„t confessyng the tenour and the noÌ„age of the InfaÌ„t / sayth that the InfaÌ„t was maryed in his auncesters dayes cÌ„ whervpon .xii. men besworne which gyue this verdyt / that the InfaÌ„te was maryed in the lyfe of his auncestour And that the woman in the lyfe of his auncestour sued a deuorce whervpon sentence was gyuen that they shulde be deuorced And that the heyre appeled whiche hangeth yet vndiscussed prayenge the ayde of the Iustice to knowe whether the Infante in this case shal be sayd maryed or nat In this case if the lawe of the Churche be that the sayde sentence of deuorce staÌ„deth in his strength vertue vntyll it be adnulled vpoÌ„ the said appele Than the Infante at the deth of his auncestoure was vnmaryed because the fyrste maryage was adnulled by that deuorce And if the lawe of the Churche be that the sentence of that deuorce standeth nat in effecte tyll it be affermed vpon the sayde appele / then is the Infante yet maryed / so that the value of his maryage caÌ„ nat beloÌ„ge vnto the lorde And therfore in this case IugemeÌ„t condicionell shal be gyuen cÌ„ And in lykewyse the kynges Iustice in many other cases shall Iuge after the lawe of the Churche lyke as the spirituell Iuges muste in many cases forme theyr Iugement after the kynges lawes ¶ Doctoure Howe may that be that the spirituel Iuges shulde iuge after the king lawes I pray the shewe me some certayn case therof ¶ StudeÌ„t Though it be somwhat a digressioÌ„ fro our fyrst purpose / yet I wyll nat with saye thy desire / but wyll with good wyll put the a case or two therof / that thou mayste the better perceyue what I meane If A. B. haue goodes ioyntly / A. by his laste wyll byqueteth his porcion therin to C. and maketh the sayde B. his executour dyed / C. asketh the execucion of this wyll in the spirituell courte In this case the Iuges there be bounde to Iuge that wyll to be voyde because it is voyde by the lawê of the realme And in likewyse if a maÌ„ be outlawed / aft by his wyll bequeteth certayn goodes to IohnÌ„ at stile / make his executours dye the kynge seaseth the goodes after gyueth theÌ„ agayne to the executours / after IohnÌ„ at style suyth a sitacion oute of the spirituell courte agaynste the executours to haue execucion of the wyll / in this case the Iuges of the spirituell court must iuge the wyll to be voyde as the lawe of the realme is that it is And yet there is no suche lawe of forfayture of goodes by out lagarie in the spirituell lawe ☞ Of the thyrde grounde of the lawe of Englande The .vii. Chapitre STudent The thyrde grounde of the lawe of Englande standeth vpon diuerse generall customes of olde tyme vsed through all the realme whiche haue ben accepted and approued by our soueraygne lorde the kynge and his progenitours and all theyr subgectes And by cause the sayde customes be neyther agaynst the lawe of god / nor the lawe of reason / haue ben alwaye taken to be good and necessarie for the coÌ„mon welth of al the real me Therfore they haue optayned the streÌ„ghte of a lawe / in so moche that he that doth agaynste them dothe agaynste Iustice And these be the customes that proprely be called the common law And it shall alway be determined by the Iustices whether there be any suche generall custome or nat / and nat by xii men And of these generall customes and of certayne principles that be called maximes whiche also take effecte by the olde custome of the real me / as shall appere in the Chapitre nexte folowynge dependeth moste parte of the lawe of this realme And therfore oure soueraygne lorde the kynge at his coronacion amonge other thynges taketh a solempne o the / that he shall cause all the customes of hys realme faythfully to be obserued ¶ Doctoure I praye the shewe me some of these generall customes ¶ Student I wyll with good wyll / and fyrst I shall shewe the how the custome of the realme is the very grounde of diuers courtes in the realme / that is to say of the ChauÌ„cerie of the kyngea benche / of the coÌ„mon place the Escheker / the whiche be courtes of recorde because none may sit as Iuge iÌ„ those courtes by by the kiÌ„ges letters pateÌ„tes And these courtê haue diuers auctorites wherof it is nat to treate at thê tyme. Other courtê there be also only grouÌ„ded by the custome of the realme that be of moche lesse auctorite theÌ„ the courtê before reherced / as iÌ„ euery shyre withiÌ„ the realme there is a court that is called the CouÌ„tye / another that is called the Shyryftes torne / iÌ„ euery maner is a courte that
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
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
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
ne yet by conscieÌ„ce / no more for the sayd two causes than it may for any other cause / this case muste of necessitie be iuged after the rules groundes of the law of the realme after no other lawe as me semeth ☞ If the patrone present nat within .vi. monethes who shall presente The .xxxvi. Chapitre STudent In the sayde summe called Summa rosella in the title Beneficio in principio it is asked / if the patrone present nat within .vi. monethes who shal present within what tyme the presentement muste be made And it is answered there that if the patroÌ„ present nat within vi monethes that the chapitre shall haue vi monethes to pÌ„sent / if the chapitre present nat within .vi. monethes that thaÌ„ the Bisshope shall haue other .vi. monethes And if he be necligent / than the Metropolitane shall haue other .vi. monethes / if he present nat than the presentement is deuolute to the Patriarke And if the metropolitane haue no superiour vnder the Pope / than the presentemeÌ„t is deuolute to the Pope And so as it is sayde there the archebisshope shall supplye the necligence of the Bisshope if he be nat exempte / if he be exempte the presentement immediatly shall fall fro the Bisshope to the Pope An as I suppose these diuersities holde nat in the lawes of the realme ¶ Doctour ThaÌ„ I pray the shewe me who shall present by the lawes of the realme if the patron do nat present within his .vi. monethes ¶ StudeÌ„t Than for defaute of the patrone the Bisshope shall present / oneles the kyng be patrone / if the Bisshop present nat withiÌ„ vi monethes / than the metropolitane shal present whether the Bisshope be exempte or nat And if the metropolitane presente nat within the tyme limitted by the lawe / than there be diuers oppinions who shall present / for some say that the Pope shall present / as it is sayd before / some say the kiÌ„ge shall present ¶ Doctoure what reasoÌ„ make they that say the kyng shulde present in that case ¶ StudeÌ„t This is theyr reason they saye that the kynge is patrone peramounte of all the benifices within the real me And they say further that the kynge his progenitours kiÌ„ges of EnglaÌ„de without tyme of mynde haue had authoritie to determine the right of patronages in this realme in theyr owne courtes / are bounden to se theyr subiectes haue right in that behalfe withiÌ„ the realme / that in that case fro hym lieth no appele And than they say that if the Pope in this case shulde present that than the kynge shulde nat onely lese his patronage peramounte / but also that he shulde nat somtyme be able to do right to his subiectes ¶ Doctoure In what case were that ¶ Student It is in this case / the lawe of the realme is / that if a benefice falle voyde / that the patrone shal present within .vi. monethes if he do nat that thaÌ„ the ordinarie shal ê‘sent but yet the law is ferther iÌ„ that case that if the patroÌ„ presente before the ordinari put in his clerke that thaÌ„ the patroÌ„ of right shal inioye his presentement / so it is / thoughe the tyme shulde fall after to the metropolitane or to the Pope / if the presentement shulde fall to the Pope / than thoughe the aduouson abode styll voyde / so that the patrone might of right present / yet the patrone shulde nat knowe to whome he shulde present / oneles he shuld go to the Pope / so he shuld fayle of right within the realme And if percase he wente to the Pope presented an able clerke vnto hym / yet his clerke were refused another put in at the collacioÌ„ of the Pope or at the presentement of a strauÌ„ger yet the patrone coulde haue no remedie for that wroÌ„ge within the realme / for the encumbente myghte abyde stille out of the realme And therfore the lawe wyll suffre no title in this case to fall to the Pope And they say that for alyke reasoÌ„ it is that the law of the realme will nat alowe an excoÌ„mengemeÌ„t that is certified in to the kynges court vnder the popes bulles For if the partie offered sufficieÌ„t ameÌ„des / yet coulde nat obteyne his letters of absolucion / the kynge shulde nat knowe to whome to writ for the letters of absolucioÌ„ / and so the partie coulde nat haue righte / that the lawe wyll in no wyse suffre ¶ Doctoure The patrone in that case may present to the ordinarie as longe as the churche is voyde / if the ordinarie accepte hym nat / the patrone may haue his remedie agaynst hym within the realme But if the Pope wyll put in an encumbeÌ„t before the patrone present / it is reason that he haue the prefermeÌ„te as me semeth before the kynge ¶ Student Whan the ordinarie hath surcessed his tyme he hath loste his power as to that presentement / specially if the collacion be deuolute to the pope And also whan the presentement is in the Metropolitane he shall put in the clerke hym selfe nat the ordinarie / so there is no defaute in the ordinarie though he present nat the clerke of the patrone if his tyme be past / so there lieth no remedie agaynst hym for the patrone ¶ Doctour Though the encumbeÌ„t abyde styll out of the realme yet maye a Quare impedit lye agaynste hym within the realme / if the encuÌ„bent make defaute vpon the distresse appere nat to shew his title than the patron shall haue a writt to the Bisshope accordyng to the statute / so he is nat without remedy ¶ StudeÌ„t But in this case he can nat be sommoned / attached / nor distrayned / within the realme ¶ Doctoure He maye be somoned by the churche as the tenaunt may in a writte of right of auouson ¶ Student There the auouson is in demaunde / here the presentement is onely in debate / so he can nat be somoned by the churche here no more than if it were in a writte of annuitie / and there the comon returne is quod clericus est beneficiatus non habens laicum feodum vbi potest summoniri And thoughe he might be somoned in the church / yet he might nether be attached nor distrayned there / so the patrone shulde be withoute remedie ¶ Doctoure And if he were with out remedie / he shulde yet be in as good case as he shulde be if the kyng shulde preseÌ„t / for if the title shulde be gyuen to the kynge the patrone had lost his presentement clerely for that tyme though the churche abyde styll voyd For I haue herde saye that in in suche presentementes no tyme after the lawe of the realme renneth vnto the kyng ¶ StudeÌ„t That is true / but there the presentement shulde be takeÌ„ fro hym by right by the lawe here it
the realme / all prouisours executours of the sayd collacioÌ„s prouisioÌ„s al theyr atturneys / notaries / mainteners shal be out of the proteccioÌ„ of the kyng / shall haue like punisshemeÌ„t as they shulde haue for executing of benefices voyding withiÌ„ the realme ¶ Doctor. But I caÌ„ nat se howe the sayd statute may staÌ„de with coÌ„scieÌ„ce that so farre restrayneth the Pope of his libertie / whiche as me semeth he ought iÌ„ this case right to haue ¶ StudeÌ„t Because as I suppose the patroÌ„s ought of right to haue theyr pÌ„sentemeÌ„tes vnder suche maner as they clayme theÌ„ in thê realme as I haue sayd before / as in the .xxvi chapi of this boke appereth more at large also for as moche as it apereth euideÌ„tly that greate inconuenient folowed vpoÌ„ the sayd prouisions / that the sayde estatute was made to auoyde the same / which syth that tyme hath ben suffred by the Pope hath ben alway vsed in this realme withoute resistaunce that the sayde estatute shulde therfore staÌ„de with good conscieÌ„ce ☞ If a house by chaunce falle vpon a horse that is borowed who shall bere the losse ⸫ The .xxxviii. Chapitre STudent In the sayde summe called Summa rosella / in the title casus for tuitus / iÌ„ the begiÌ„nyng is put this case if a man lende to another a horse whiche is called there deposituÌ„ a house by chauÌ„ce falleth vpoÌ„ the horse whether in that case he shal answere for the horse And it is answered there that if the house were lyke to falle that than it can nat be taken as a chaunce but as the defaut of hym that had the horse deliuered to hiÌ„ But if the house were stronge of likeliholde by comoÌ„ presumpcion in no dauÌ„ger of fallyng but that it fell by sodayne tempeste or suche other casueltie that than it shal be taken as a chaunce / he that had the kepynge of the horse shal be discharged / thoughe his diuersite agreeth with the lawes of the realme yet for the more playner declaracion therof and for other lyke cases chaunces that may happeÌ„ to goodes that a maÌ„ hath in his keping that be nat his owne I shal adde a littell more therto that shal be somwhat necessarie as me thynketh to the orderinge of conscieÌ„ce Fyrst a maÌ„ may haue of another by way of lone or borowynge / money / corne / wyne / suche other thinges where the same thynge can nat be deliuered if it be occupied but another thynge of lyke nature lyke value muste be redeliuered for it / suche thynges he that they be lâ—â—e to may by force of that lene vse as his owne And therfore if they perysshe it is at his ieoperdye this is mooste properly called a loone Also a maÌ„ may leÌ„de to another a horse / an oxe / a carte / or suche other thynges that maye be deliuered agayne / they by force of that leue may be vsed occupied reasonablie iÌ„ such maner as they were borowed for / or as it was agreed at the tyme of the loone that they shulde be occupied / if suche thynges be occupied / otherwyse thaÌ„ accordyng to the intente of the lone / in that occupacioÌ„ they perysshe in what wyse so euer they perysshe / so it be nat in defaute of the owner / he that borowed them shal be charged therwith in law conscience / if he that borowed them occupie them in suche maner as they were lent for / in that occupacion they perysshe in defaute of hym that they were lente to thaÌ„ he shall answere for them And if they perysshe nat through his defaute than he that oweth them shall bere the losse Also if a man haue goodes to kepe to a certayne day for a certayne recompence for the kepynge he shall stande charged or nat charged after as defaute or no defaute shal be in hym / as before appereth / so it is if he haue nothyng for the kepynge / but if he haue for the kepynge make promyse at the tyme of the deliuerye to redeliuer them saufe at his peryll than he shal be charged with all chaunces that may fall But if he make that promyse haue nothynge for kepyng I thynke he is bounde to no suche casuelties / but that be wilfull and his owne defaute / for that is a nude or a naked promyse wherupon as I suppose no accion lyeth Also if a man fynde goodes of another if they be after hurte or loste by wilfull necligence he shal be charged to the owner / but if they be lost by other casuelte as if they be layde in a house that by chaunce is burned / or if he deliuer theÌ„ to another to kepe that renueth away with theÌ„ I thynke he be discharged / these diuersites hold most comonly vpoÌ„ pledges / or where a maÌ„ hurith goodes of his neyghbour to a certayn day for certayne money / many other diuersities be in the law of the realme what shal be to the ieopardy of the one what of the other whiche I will nat speke of at thê tyme. And by this it may appere that as it is comonly holden in the lawes of EnglaÌ„de if a comon caryer go by by wayes that be daungerous for robbynge / or driue by nyghte or in other vnconueniente tyme and be robbed / or if he ouer charge a horse whereby he falleth into the water or otherwyse / so that the stuffe is hurte or empeyred / that he shall stande charged for his misdemeanoure / if he wolde percase refuse to carye it / onelesse promyse were made vnto hym that he shall nat be charged for no misdemeanour that shulde be in him that promise were voyde For it were agaynste reason and agaynst good maners and so it is in all other causes lyke And all these diuersities be grouÌ„ded by secondarie conclusions diriuied vpoÌ„ the law of reasoÌ„ without any estatute made iÌ„ that behalfe And peraduenture the lawes the conclusioÌ„s therin be the more playne the more opeÌ„ For if any statute were made theron I thynke verely mo doutes questioÌ„s wolde rise vpoÌ„ that statute thaÌ„ dothe now whaÌ„ they be onely argued and iuged after the comon lawe ☞ If a preste haue woÌ„ne moche by saieÌ„g of masse / whether he may gyue those goodes or make a wyll of them The .xxxix. Chapitre STudeÌ„t In the sayd summe called SuÌ„ma rosella in the title clericus quartê° the thyrde article / is asked this question if a preste hath woÌ„ne moche goodes by sayenge of masse whether he may gyue those goodes or make a wyll of theÌ„ / whereto it is answered there that he may giue them or make a wyll of theÌ„ specially whaÌ„ a man bequeteth money for to haue masses sayd for hym / that lyke law is of suche thynges as a clerke wynneth by the reason of an office For it