¶ 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
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
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