l. legatum ff de annu lega because the worde vntill doeth signifie in this case a limitation And though there ought to be a multiplcation of paiments yet there is a limitation ad tempus nubēdi that afterward the paiment shall not be due but if a mā deuise to his daughter his lands which he bought of Cornelius vntill she marie this signifieth not a yerely legacie because subiect a materia non patitur vt sit multiplicabile But it onely signifieth an extinction of the legacie whē the mariage is accomplished For if a man deuise his land in Dale to A. vntill he be Shirife of London as soone as he is Shirife of London the legacie is determined and immediatlie reuerteth to the heire ſ L. fi C. de leg For as it is in the power of the Testatour to make the legacie begin at a certaine time so likewise it is in his power to make it end at a certaine time Nomomath You haue put good and perspicuous diuersities betwixt a condition and a limitation I pray you Anglonomoph shew what your Law determineth of this difference Anglonomoph The verie same difference is 3. A difference betwixt a limitation and condition at the common Law in our Law which by cases shall be explaned A man graunteth to an other his manour of B. so that he paie 10. li. yearely to the lessour during the life of the lessour and if the said rent be behind that then it shall be lawfull for the lessour to distraine for it in the lessees manour of S. the lessour hath a franktenement in the rent sub modo depending vpon the will of the lessee and the lessour and there is a limitation implied by Law though not verbally expressed t 3. E. 3. 15. Assise 172. So if a man make a Lease to one for life paying the first six yeares 3. quarters of corne and if he will hold it longer a C. s. the word If in this case maketh but a limitation u 15. E. 3. Execution 63. So if a rent of 5. pound be graunted to I. as long as the grauntour his heires or assignes shall hold the manour of W. this was adiudged to be a freehold in the grauntee but yet with a limitation uu 10. Ass pla 8. Br. Estates 31. as long as the grauntour should hold the manour of W. So if a man graunt a common in his land in Dale when he putteth in his beastes or graunteth an estouer of Wood when he commeth to his manour of D. the grauntee hath a freehold but qualified with certaine limitations a 17. Ass pla 7. So it is if the king graunt an office to I. S. donec bene fideliter se gesserit b 3. Ass pla 9. et 6. So if land be leased to one quamdiu se bene gesserit c 37. H. 6. 29. So if a man deuise his land to his eldest sonne in taile with seuerall remainders in taile and that the partie morgaging incumbring entangling or aliening the land shall be clearelie discharged excluded and dismissed touching the intaile and the conueyance of the intaile shal be of no force vnto him this is not a condition but a limitation for if it were a condition the right heire might enter for the breach and defeat all the meane remainders in taile which is not consonant to the intent of the Deuisour d 13. et 14. Eliz. Com̄ Newyses c. 403. And whereas you haue said that a man by way of limitation may deuise money to be paied out of his chest or coffer and if there be no money in the chest or coffer there is no money due our Law dealeth 4. The common Law is more ample and large then the Ciuil law in matter of limitation more amplie and beneficially in like cases For if a man graunt to me an annuitie of x. li. to receiue out of his coffers if he haue neither coffers nor money in thē yet his person shal be charged with the annuitie e Fitzh Nat. bre 152. A. 9. H. 6. 17. because the graunt it selfe induceth a charge vpon the grauntour Yet an annuitie may be graunted with a limitation as if an annuity be granted to take at euery time as often as the grauntour shall come to his manour of S. or as often as the grauntee shall come to the house of the grauntour f 14. E. 4. 4. So if I graunt an annuitie of x. li. out of my land in Dale and I haue no land in Dale this graunt is not void but my person shall be charged g 9. H. 6. 53. per Newt et Cot. Nomom Pause here Anglonom What is Canonologus drowsie or entred into some dreame Canonolog I was neither drowsie nor dreaming but the eies of my mind were somewhat closed and shut as the hares be when she watcheth for the houndes for if I could haue taken any aduantage of the speeches of my two companions I would not haue been so long silent But in truth our Law in the matters of condition before handled hath no other oracle but the Ciuil Law if hereafter there happen any variance I will not conceal it from you Nomomath Let me then aske you this question 3. Diuision Codicgn A man deuiseth to R. x. li. and if he wast or spend it then he deuiseth vnto him x. li againe Suppose that he do spende twentie pound whether may he afterward demaunde 10. li. because the deuise is indefinite Codicgnost The deuise is not indefinite 1. Rursus or the word againe signifieth once againe by the Ciuill Law for this word againe signifieth as much as once againe according to the rule of our Law Rursus verificari potest in vna vice h l. fidei commiss §. si quis ff de leg 3. Otherwise it might be that the executor should be charged to the full value of all the goodes of the Testatour For if the deuisee were an Acolastus though the executor were by the executorship a Craesus yet all would not serue Anglonomoph Your reason is good but yet I would not be peremptorie in this matter for it is not in our Law so cleere For two Iudges were opposed against other two in the like case There is a Prouiso in a Lease that 2. How farre forth a word of restraint is to be extended at the common Law neither the lessee nor his assignes shall not alien to any without the assent of the lessour but onely to the wife or the children of the lessor and the lessee alieneth to one of the sonnes of the lessour It was left ambiguous whether the restraint were now determined i Mar. 152. Dy. Nomomath Let this be the case I am bound to paie you twentie pound if your ship come 4. Diuision from Russia and after the ensealing and deliuerie of the bond we make this condition that the twentie pound which I did before owe
I substitute the one of them to the other that is if the one die the other shall haue all and the mother nothing at all t Gazalup verb. substitutio brem loqua Anglonomoph I haue noted in your wordes Codign two thinges which haue no small coherence and agreement with matters of our Law First in that by will according to your Law an entrie may be limitted to a straunger 2. In that ye hold that he which defeateth the estate of him that breaketh the condition shall defeat his whole estate and shal entirely claime the possession Which two assertions I shall seuerally prooue by cases of Law beginning with the first A man seised in fee of landes deuisable 3. By Will according to the common Law an entrie may be limitted to a stranger did deuise them to one for terme of his life and that he should be a Chapplein and that he should chaunt for his soule all his life time and that after his decease the tenements should remaine to the Cominaltie of a certaine village to finde a chappleine perpetuall for the same tenements and he died and the deuisee entred and held the landes sixe yeares and was no chappleine and the heire of the deuisour outed him and he brought an Assise And it seemed to the Court that the limitation that he should be a chappleine was no condition and that the heire could not enter for then the remainder should be defeated which may not be because by the intent a perpetuall chappleine ought to found u 29. Ass pla 17. Whereby it appeareth that they in the remainder were to take aduantage in this case of the breach of the thing that was to be done and not the heire So in Fitz Iames his case the clause of entrie was limitted to him in the remainder for breach of the condition by the particular tenant for it was helde that the limitation might determine the estate and that being determined he in the remainder might enter uu 13. et 14. Elizab. Com̄ 403. Newyses case Also 34. E. 3. the case was that a man had issue a sonne and a daughter and deuised land deuisable to one for life vpon condition that if the sonne should disturbe the tenant for life that the land should remaine to the daughter and the heires of her bodie the father dieth the sonne disturbeth the tenant for life who dieth the daughter brought a Formedon and it was allowed a 34. E. 3. Formedon pla vlt. But yet the aduantage of 4. The aduantage of entrie limitted to a stranger is in the late reports doubted of entrie by vertue of the limitation is not in other late reportes so cleare but hath been greatlie doubted of Stubes being Cestuy que vse deuised to his wife certaine land during her life ita quòd non faceret vastum the remainder to his yonger sonne in taile and died after the Statute of 27. of ioyning the possession to the vse is made the woman dieth the question was who should enter for the condition broken the heire the feoffees or he in the remainder b 3. Mar. 117. Dy. And an other case was equally doubtfull Wilford was bound in an Obligation without daie of payment limitted and deuised his land to his executors vppon condition that if they did not paie the said summe according to the obligation that the deuise should be voide and that then A. should haue the land to him and to his heires vppon condition that hee paied the money Wilford died A. died the executors are requested to pay the money and they would not pay it the question of the booke left vndecided is whether the heire of A. may enter into the land and paie the money c 3. Mar. 128. Dy. In like maner land in Gauelkind was deuised to the eldest sonne vpon condition that he should paie 100. li. to the wife of the deuisour he fayled of the payment it was questioned by Manwood whether the yonger sonne might enter into the moitie as by an implied limitation d 15. Eliz. 317. Dy. But touching such entries by force of some speciall limitation or condition Mast. Frowike giueth a good rule 21. H. 7. that an estate of inheritance can not cease by vertue of a condition broken onelie but there ought to be also an entrie But otherwise it is of a particular estate and the reason is because such an estate may be determined by word as by surrender and by the same reason it may cease by the wordes of the condition e 21. H. 7. 12. per Frowike Now that the 5. That the entrie for the condition broken defeateth the whole estate whole estate of the feoffee or donee is defeated by the breach of the condition and the entrie of the partie may be prooued by diuerse authorities in our Law and that there can be no fraction of the condition 14. Elizab. all the Iustices agreed And so was iudgement giuen in Winters case that by the graunt of the reuersion of part of the landes with which a condition runneth the condition is wholie confounded because it is a thing penall and entire and may not be apportioned nor diuided f 14. Elizab. 308. Dy. And 33. of Henrie the eight according to Mast. Brookes report it was helde for Law that if a man giue land in taile or lease it for life rendring rent with a condition for default of payment to reenter now if he lease part of the land to the donour or lessour or if the donour or lessour enter into part of the land he cannot enter for rent behind after but the condition is wholie suspended because a condition cannot be apportioned or diuided Therefore some scruple may with good reason be made of the case 16. Elizab. in my Lord Dyers reportes A man leased land for yeares vppon condition that the lessee should not alien the land to anie person without the assent of the lessour nor any part of the land the lessour giueth licence to alien part and the lessee alieneth the residue without licence it was adiudged that the lessour may enter notwithstanding the dispensation of the condition ex parte g 16. Elizab. 334. Dy. Howsoeuer 5. Edw. 6. be to the same purpose that a man enfeoffed two vppon condition to make backe a lease for life to the feoffour the remainder in fee to a straunger the one of them onelie maketh estate accordingly And by the opinion of manie this is good for a moitie by the dispensation of the partie who might take aduantage of the condition by his acceptance of estate h 5. Ed. 6. 69. Dy. For 23. Elizab. the case was such A man was bound in an hundred pound to giue to the obligee the moitie of all the fishes taken by his water-mille he tooke twentie one fishes and gaue tenne to the obligee and an action of Dette was brought vpon the obligation and the plaintife recouered
lands and tenementes and so it is of an attainder by confession i Parkins Graunts 6. But M. Stamford being better aduised saith that as soone as any of the offences aforesaid are committed hee is restrained to make a gift or any other alienation of his lande and if he doe it shall presently bee made void by his attainder and it is not materiall whether the attainder be by outlawrie or verdict and this is agreeable to the booke of 38. E. 3. fol. 37. k Stamford fol. lib. 3. 31. â— but he saith that the forfeiture of the goods by attainder by outlawrie shall haue relation to the exigent and forfeiture by attainder by verdict shall haue relation to the verdict l Stamford 192. The third Chapter That the worthinesse of blood hath beene principally respected of all nations THe diuision of inheritances in stirpes in capita hath made great diuision in diuerse common weales yet in all of them the worthinesse of bloud hath beene regarded By the Romane law the sonne of the elder sonne who is dead shall equally succeede in the inheritance with the second sonne And whereas in Germanie there was a contention betwixt the vncles and nephewes of the right of inheritances and for the deciding of it the Emperour Otto the first did cause a Parliament or generall assemblie of estates to be held for the disceptation and deciding of this doubt When after much busines and argument no determination could be had the matter was ordeined to be tried by single combate an vsuall thing in these daies for it was about the yeare of the incarnation of our Sauiour nine hundred fortie and two a Witichindus lib. 2. histor 2. Sigebert in chronic Ottonis 1. and a formall triall referred to God when mans wit was at a nonplus But in this case that part ouercame which did accompt the sonnes of elder sonnes as sonnes and therefore it was ratified by Law that they should equally diuide the inheritance with their vncles Amongest other nations diuers contentions haue risen about this matter for when Eunomus the King of the Lacedemonians had two sonnes Polydectes the elder and Lycurgus the yonger and Polydectes deceased leauing no sonne lyuing at the time of his death and therefore Eunomus being dead the septer of that kingdome came to the handes of Lycurgus afterward when Polydectes his widow had brought forth a sonne Lycurgus did willingly and readilie yeeld to him the septer b Plut. in vit Lycurg Iustin lib. hist 3. Which act of Lycurgus agreeth fully with our Law whereby it is ruled that if a man haue a sonne and a daughter and the sonne purchaseth land and dyeth and the daughter entreth and after the father begetteth an other sonne of the same wife this sonne shall haue the land c 19. H. 6. 6. So if a man enfeoffe an other vpon condition and the condition is broken and the feoffor dyeth without issue his wife priuement enseint and the brother of the feoffor entreth for the condition broken and after a sonne is borne he shall auoide the possession of his vncle may lawfully claime the inheritance d 9. H. 7. 25. And it is likewise said that after two or more discents the heire afterward borne claiming by discent may enter into the land but he shall not haue a writ of Accompt for the mesne profites nor any writ of Wast e 9. H. 6. 23. But in cases of purchase the Law taketh a difference and therfore it is said 5. E. 4. by Billing that if a man deuise land to a man and his heire and the deuisee dieth hauing issue a daughter his wife being priuement enseint with a sonne who is afterward borne the daughter shal reteine the land in perpetuum which the Court graunted f 5. E. 4. 6. And 9. H. 6. it is said that if a remainder cannot veste in any at the time when it falleth it shall not veste in him that is borne afterward where an other hath entred before g 9. H. 6. 23. 2. Eliz. 190. pla 18. But to retourne to the examination of this matter by historie Pausanias reporteth that Cleomenes the king of the Lacedaemonians being dead a controuersie sprung betwixt Areus the sonne of Acoratus the eldest sonne of Cleomenes who died before his father and Cleonymus the second sonne the vncle of Areus but by Senate-decree the kingdome was adiudged to Areus h Pausan lib. 3. And Polydore Virgill reporteth that king Edward the third being deceased Richard the second the sonne of his eldest sonne obteined the kingdome and was preferred before Iohn Edmund and Thomas the sonnes of king Edward i Polyd. virg in hist reg Angl. Paulus Aemilius an excellent writer of the matters of Fraunce likewise telleth that when Hanno had inuaded the kingdome and expulsed Erkenbalde the sonne of his elder brother this matter was brought into question in the ende Hanno was constrayned to laie aside armes and to stande to the iudgement of the Peeres who adiudged that Erkenbalde should haue the same power and interest in the kingdome which his father might haue had if he had suruiued k Paul Aemil. in tit Carol. Crass Neither will I denie that examples may be produced on the contrarie part as namelie the contention betwixt Artemenes and Xerxes for the kingdome of Persia for it is deliuered by Herodotus l Herodot lib. 7. Iustin m Iustinus lib. 11. Plutarch n Plut. in Artaxerx that a controuersie beeing raysed in the kingdome of Persia betwixt Artabazanes as Herodotus Artemenes as Iustinus calleth him and Xerxes the sonnes of Darius Hystaspes about the succession in the Monarchie of Persia Demaratus was at the same time there who was driuen and expulsed out of the kingdome of Sparta and he signified vnto them that the Law and custome of the Spartanes was that the sonne that was borne after the father had attained to the kingdome was to be preferred before the elder brother who was borne before for which cause the kingdome was adiudged to Xerxes the yonger sonne who was borne of Darius being king whereas the other was begotten of him being a priuate man But this iudgement was after reuersed For when after the death of Darius the same controuersie was handled betwixt Arsica begotten of Darius being a priuate man and Cyrus being borne of him after his aduauncement to the kingdome and Parysatis the mother did in the behalf of Cyrus vrge and reuiue the controuersie betwixt Xerxes and his brother the Persians notwithstanding the former iudgement did now adiudge the kingdome to Arsica o Plut. in vit Artaxerx Neither am I moued though in the contention for the Dukedome of Millayne betwixt Lodwike and Galeatius bretheren whereof the one was borne before his father obteined the Dukedome the other after the contrarie were determined for Law p Guicciard lib. 1. histor For by the most examples of euery
Heresie subiect to the censure of the Canon Law onelie or to the iurisdiction of all your Lawes I pray you shew me how and how 10. Diuision farre forth it is punishable Canonolog There be two thinges which make Heresie First it must respect and concerne the Articles of our Faith Secondly there must be a stubborne and pertinacious affirmation for there must be error in ratione and pertinacia in voluntate h Cle. 1. §. porro de sum trini for where there is error but not obstinacie there the partie can 1. Two Sorts of Heretikes formatus and suspectus not be said to be formatus but suspectus haereticus and then he holdeth the error inquisitiue but not adhaesiue But he that is formatus haereticus is thus punished in our Law he is excommunicated he is bereaued of all ecclesiasticall promotion he is deliuered vp to the secular power and all his goodes and landes be confiscated and taken away from him i c. ad abolend de haeretic c. Excommunicamus de haeret et c. secundū leges eo tit lib. 6. But in two cases their landes are reserued and left to their children First if they reueale their fathers heresie k c. Vergent in sen de haeret c. vt inquisit de haere lib. 6. 2. If they haue been so long in possession 2. In what case the wife and children of Heretikes shall enioy their landes that they may prescribe l c. vt officium de haere lib. 6. But the dowrie of the wife of an Heretike is not forfeited vnlesse she do marie him knowing of the heresie m c. de creu eo tit lib. 6. Codicgn Our Law agreeth to that which you haue said And further prescribeth an other punishment which you haue not mencioned against such offendors for it saith that they shall be burnt aliue n l. quisquis C. ad l. Iul. maiest Et c. vt inquisitionis de haeretic lib. 6. Nomomath Yet I haue read in a learned Ciuilian that in the whole bodie of the ciuill 3. Heretikes by the ciuill Law not punishable by fire Law it is not recorded that Heretikes should be put to death by fire and therefore he is somewhat bold with the Canonistes and calleth them igniuomos canonistas o Alber. Gentil lib. lecti 2. Codign Indeed our Law as to that point is wholie grounded vpon the Canon oo c. ad abolend de haeretic Canonolog It is not grounded vpon the Canon for we referre the matter wholie and finallie to the secular Magistrate as your writ de Haeretico comburendo Anglonomoph doth testifie Anglonomoph Indeed in our Realme in auncient 4. The Canonist poasteth the punishment of Heretikes to the cōmon Law time he that was to be burnt for Heresie was first to be conuicted of the same before the Bishop of the diocese c. and ought to abiure it And if he did after relapse into it againe and were thereof condemned in the said Dioces then he should be sent to the secular power to doe with him whatsoeuer should please the king ooo Fitzherb nat bre 269. But afterward by the Statute of 15. of king Henry the eight p 15. H. 8. cap. 14. it was ordeined that he who had once abiured heresie and was relapsed 5. The professor of the common Law bandeth back againe the punishment of Heretikes to the Canon Law and was conuicted hereof before his Ordinarie that notwithstanding the Ordinarie ought not to commit him to the laie power without the kinges writ first purchased herevpon to burne him Nomomath Then I perceiue the whole act both of adiudging to the fire and of sending the partie to receiue that punishment dependeth now wholie vpon the Canon Law and the sentence of the Bishop framing the style of his iudgement according to the Canon Law Canonol The secular power putteth him to death but we are discharged of it Nomom Nay verily no more then Nabuchadnezer can be acquited of exposing the life of Daniell to hazard for he might as well haue excused himselfe and said that he did not meane to kill him but did onelie commit him to the curtesie of the lyons And as he did not personally put him into the caue within the grate so neither do ye personally thrust these which you tearme Heretikes into the fire nor bind thē vnto the stake Nabuchadnezers punishment I haue reade of which was grieuous and horrible But I doe not reade of the admittance of such excuse And when the Iudge of Iudges shall examine such firie proceedings it will be in vaine to excuse themselues by the fire and the chaine and the stake or by the Shirife and the Bailifes if the Iudgement haue been wrongfull and vniust It will be like the excuse that Phillip king of Macedonia made when he was charged with the expugnation and ouerthrow of the Citie of Chius Nequè ego Chium expugnaui sed Prusiam socium amicum expugnantem adiuui q Liuius lib. 32. for so Prusias might haue said that he did it not but onelie encouraged his men to do it So Brutus and Cassius might be excused from killing themselues because they did non inflict the wound but did will and commaunde others to doe it r Flor. lib. 4. histor After as bad a sort Dido cleareth her selfe of her death though not any waie to be cleared Praebuit Aeneas et causam mortis et ensem Ipsa sua Dido concidit vsa manu rr Ouid. Fastor 3. But I will insist no more of this matter Now 11. Diuision resolue me whether any Church-land be demaundable at the Spirituall Law Codicgn Religious houses and landes belonging 1. What things may be tearmed Church-land by the Ciuill Law vnto them deputed to holie vse are comprehended in our Law vnder the name of Church-land or lyuing And all landes which belong to Oratories or priuate Chappels annexed to the particular houses of laie men by the authority of the Diocesan and the landes belonging to them are comprised vnder the name Church-land or Church liuing ſ C. de epis cler in lib. Orpha Likewise that plott or parcell of ground in which a dead man is buried or wherein his head or any part of him is buried becommeth consecrate and religious and therefore cannot be morgaged nor pledged t ff de reli sump fune C. quae res oblig poss l. 1. and of such landes our lawe taketh notice and holdeth full iurisdiction Canonol But in strict reason such things do belong to the iurisdiction of the spirituall court u 42. Disti oratorium Anglonomoph These matters are diuersly taken in our law for in action of trespasse conceiued by the Vicar against the Parson for the breaking of his close and for his lambes taken away whereas the close supposed was the Churchyard parcell of the vicarage of the 2 Of Church-yards the spirituall court
slaunder and diffamation which blemisheth the good name of others it detesteth and vtterly disfauoureth condemneth punisheth as a stepdame vnto rancor violent speeches the abortiue children of malice Wherefore an action vpon the case will lye at our law for calling the plaintife theefe Å¿ 27. H. 8. 22. and for calling the pr a false and periured man t 28. H. 8. Br. Acti sur le case 3. 30. H. 8. Br. Acti sur le case 104. so an action vpon the case lyeth for calling the pr false iustice of peace u 4. E. 6. Br. Acti sur le case 112. But to publish one for his villaine who in truth is his villain is no slander nor actionable x 2. E. 4. 5. nor to publish one to be a bastard who is in deed a bastard if the defendant doe make title to the bastardes lande and did therefore tearme him bastard that the matter might bee produced into question and triall y 25. Eliz. Baâ—isters case Nomomath Enough of this wee will passe now to other matters The third Dialogue Of Dettes NOmomath I pray you let me know 1 Diuision Codicgnostes all the waies meanes wherby one man may become indebted to another so that remedie may be had by processe of law for the debt Codign A dette may grow by writing or especialtie 1 Dette may grow by writing or especialtie as when the dettor confesseth himselfe to bee obliged and bound to his creditor and such bond or obligation may be by deede indented sub eadem forma verborum by mutuall deliuerie it becommeth the deed of them both a l. seruuÌ„ filij § eum qui chirographum ff de leg 1. Such a kind of writing wee call instrumentum 2 An obligation may be by deed indented at the ciuill law priuatum because it is done in the name and by the hand of a priuate man not in the name of any king or prince and this kind of instrument ought to haue the subscription of three witnesses b C. de proba l. but there is a priuate instrument of more solemnity which is called of 3 What instrumentum garraÌ„tigiae is at the ciuill law vs instrumentum garrantigiae an instrument of warrantie vpon which a man shall haue present execution as if it do specifie that one man is indebted to another this being presently exhibited in place of iudgement the iudge ought presently to awarde execution c ff de re iudi and such writings obligatorie if they haue any razure in them in any materiall place are of no credit in law d c. ex liter in glo 2. de fid instrument and there bee in our law three sorts of bonds Naturalis Ciuilis Praetoria Naturalis 4 Three sortes of bonds by the ciuill law is when as by mutuall contract one of the parties becommeth mutually bounde to the other Ciuilis is that which is made in forme of law whereof we haue aboue spoken wherein one of the parties confesseth and acknowledgeth himselfe to bee indebted to the other in a certaine summe of money and bindeth himselfe for the payment of the saide summe Praetoria which is deuised and conceiued of the Pretor and Iudge in precise termes specifijng the debt e Insti de obli in prin Likewise debt may accrue 5 Dette may grow by way of contract vnto one by way of contract which is nothing els but the coÌ„sent of 2. persons for a thing to be done or giuen by the one to the other and it is on both sides obligatorious f de pac l. 1. §. 1. for if two doe consent in this true proposition Titius est homo or in this false assertion Titius est Asinus yet this is no contract because non vtrobique obligat f Gazalup verb. pactum for if the wordes or acte be obligatorie then the contract is obligatorie as contrariwise if the words or acte tend to acquittance then the contract is nothing els but an acquittall as if the creditor doe redeliuer the writing obligatorie vnto his dettor this is an acquittance in lawe for otherwise the redeliuerie should worke nothing g ff de pac l. labeo but if the creditor should redeliuer a pledge vnto the dettor this will not amount to any acquitall or release of the dette because the redeliuerie in that case may haue an other effect namely the vse of the pledge for a certaine time h l. sequent ff eo ti And if the instrument or especialtie of the dette be come to the hands of the dettor the law will intend prima facie that it was redeliuered by the cteditor in lieu of an acquittance i l. si chirograph ff de pig but this must be limited with this restreint if the dettor be a meere stranger in facto vnto the creditor but if he be his seruant or one of his familie conuersing in house with him then the intendment will bee otherwise for then the law will presume that he might easily come by the bond without the priuitie of the creditor k l. vnica §. ille C. de lati li. tol Canonol I haue not at any time obserued any thing in our lawe which maketh head against 6 The canon law agreeth with the ciuill in matters of bonds or dettes these determinations of lawe by you mentioned Anglonomoph Our law with some of these assertions fully agreeth and from some flatly disagreeth as I meane to manifest by examining 7 Dette may grow by contract by the common law in order the particulars of Codicgnostes his speech Dettes with vs may grow many waies and euerie way an action of dette will lye for it may grow by contract as Codicgnost hath auowched For if the husband sell trees growing vpon the land of his wife and the wife dieth before they be cut downe yet the husband may maintaine an action of dette so it is of a vendition by the tenant in taile so where a man hath a horse by wrong and selleth him to another for a certaine summe of money and before the deliuerie of the horse he dyeth or the owner taketh him away yet an action of dette lyeth vpon the vendition l 18. E. 4. 6. So if a man sell ten acres of land to another for ten pound and after he will make no assurance of the land yet he may maintain an action of dette for the money and the other is put to his action vpon the case but if it bee agreed that the assurance shall be made before a certaine day and the ten pound to be payed vpon the perfecting of the assurance then the lawe is otherwise For if hee make not the assurance before the day but after hee shall not haue an action of dette for the ten pound m 22. H. 6. 50. ê‘ Newt But if a tailor doe make a garment for mee if we bee
an elme tree in the place where the waste was assigned and did make a ditch in that place to water cattell which went vpon that ground which was necessary because the water was very lowe and almost dryed vp in that place by that meane he deduced water out of the earth and this was adiudged a good answere r 33. E. 3. Double plea. 9 Codicg That which you haue said is to reason consonant to our law correspondent for as to your first case of the clearing or amending of the conduit-pipes c. Though it be in another mans ground this in our law is not accompted iniurious Å¿ l. 1. c. de quae duc l. 11. l. de cernimus eo ti li. 2. But wee haue a rule in our 4 That the ciuil law agreeth with the common law in suffering and to amend conduit-pipes in another mans ground lawe that if a man ought to conuey water per subterraneos meatus through certain chinkes or crauies of the earth in an other mans ground he must not doe this by a leuill of stones but with pipes of leade because the other mans grounde is by stones more annoyed and empaired t ff de contrah emp. l. si aquae duct But for the improouing of ground from worse to better is clearely permitted by our law As to turne waste grounde into arable or fennish ground into firme ground this we accompt rather a benefite to the owner of the soyle then an iniurie u c. de fund patr l. si li. 11. So it is if a wood become arable x c. quod per noual de verb. signif but to destroy any thing in an other mans ground or to digge a pitte and so to alter the forme and nature of the soyle and by that meane to make it worse is accounted of vs very iniurious but to repaire an olde building or to make some commodious addition is not wrongfull but beneficiall because Non videtur nouum opus facere sed vetus reficere a ff de noua l. 1. §. nouum et §. si quis aedificium Canonol Our lawe doth not withstand any of these assertions Nomomath Well now I pray you proceed 3. Diuision to speake of the penaltie which hee is to suffer by your lawes that committeth waste Codicgn By our Law he that in such case 1. The punishment of wast by the Ciuill Law will denie the wrong done shall be punished with double damages But if he iustifie and it be found against him with single b ff de insti l. 1. §. 1. But he that doth breake the sluces of Nilus so that verie great iniurie is done and to verie manie he is burnt in the same place where the fault was committed in a fire of the height of twelue cubites and his goodes and landes are confiscated because it is crimen quasi laesae Maiestatis c C. de agge Ni non rump l. vâ— â—â— Canonol Our Law in this doth not gainsay you Anglonomoph By an action of Wast at our 2. The punishment of wast by the common Law Law the plaintife if it be found for him shall recouer treble dammages d Fitzh nat bre 58. H. and execution may be had by Elegit of the landes which the defendant had at the time of the inquest taken e 17. E. 3. 5. 18. E. 3. 38. 31. E. 3. Execut 66. and he shall recouer likewise the place wasted f Stat Glouc. cap. 6. Nomomath I will put you to no more paines in this matter but will discend to other things which haue not yet been discussed The sixt Dialogue Of Parceners NOmomath Let me know Codign whether in your Law there be any definition set downe established 1. Diuision touching Parceners as they are tearmed at the common Law and concerning the making of Particion betwixt them agreeable to the common Law Codicgn I would first that Anglonomoph should shew who be Parceners at the common Law and in what sort partition is made otherwise I should but roue at an vncertaine marke Nomomath I pray you do so Anglonomoph for that course is not to be disliked Anglonomoph Mast. Littleton a learned man 1. Two sortes of Parceners Parceners by the common Law and Parceners by custome in our Lawes and a great patriarch of our profession maketh two sortes of Parceners Parceners by the common Law and Parceners by custome Parceners by the common Law are when a man or woman seised of landes or tenements in fee simple or fee taile haue no issue but daughters and die and the tenements discende to the daughters and they enter into the said landes or tenements now they are Parceners and how manie daughters so euer they be they are but one heire to their auncestour And they are called Parceners 2. Who be Parceners by the common Law because by the writ which is called de Particione facienda the Law will compell them to make particion of the land Also if a man seised of tenements in fee simple or in fee taile do die without issue of his bodie ingendred and the tenements discende to his sisters they are Parceners by our Law So if his landes discende to his Auntes a Littlet lib. 3. c. 1. fol. 54. And none bee called Parceners in our Law but women or the heires of women which come to landes and tenements by discent For if two sisters purchase landes or tenements thereof they be called Iointenants and not Parceners b Littlet ibidem fol. 56. But bretherne may be Parceners by the custome as by the custome of Gauelkind in Kent bb Littlet ibid. 59. Codicgn We haue an action in our Law 3. Who be Parceners by the Custome verie like to your aboue mencioned writ of Particione facienda and it is called actio familiae herciscundae and it lieth for them which haue a common inheritance to bee deuided betwixt them As when two sisters brothers or kinsfolkes are instituted heires and by that meane are reputed as seuerall heires to the auncestor or him that instituteth them c ff famil hercis l. 1. et 2. C. de verb. sign l. sin For if the Testatour pointing with his finger at three seuerall persons doe saie vnto them quilibet vestrum haeres mihi esto his 4. That by the Ciuill Law where three heires are instituted they are not reputed as one heire meaning by our Law is taken to be this that euery one of them should be heire in parte non in solidum for maeteria subiecta the thing it selfe doth require it because it is vnpossible by our Law that euery one of them should haue the inheritance in solidum d L. hoc artic ff in fi ff de haere insti But if he doe not speake distributiue but collectiue as if he said Quisquis mihi haeres erit det Titio centum solidos now whether there be one heire or
more heires then one yet Titius shall haue but fiue pounds because of the collectiue word quisquis e L. ab omnibus in princip ff de leg 1. et l. si quis in fundi vocabul in fi eo ti But if the Testator doe say Quicunque primò ingressus fuerit Castrum habebit centum solidos and two doe enter the Castle together they shall euery of them haue fiue poundes because of the distributiue word quicunque which may be verified either in one or moe doing the same act at one time because primus est qui alium ante se non habet f L. qui filium §. 1. ff de leg 1. And if the Testator saie Quilibet haeredum meorum det Titio decem solidos Titius shall haue as many tenne shillinges as theire be heires g L. si pluribus et ibi no. gl ff de leg 2. which prooueth that by our Law the seuerall heires are not accompted as one heire Canonolog Our Law holdeth not the contrarie Nomomath You haue good reason for it But I pray you resolue me Anglonomoph are these which you call Parceners reputed in your Law as one heire to all intents Anglonomoph Yea to all intentes in regard 5. That by the common Law parceners are reputed as one heire as to the discent of landes of the discent though as to the making of particion it accompteth them as seuerall persons gg Fitzh nat bre 197. A. For a Nuper obisâ— ought to be brought by that Coparcener who is deforced from the 6. Parceners in regard of the particion are accompted as seuerall persons tenements against all the other Coparceners which do deforce her although some of them haue nothing in the tenancie h 32. E. 3. Nuper obijt 7. 9. Ass pla 8. For seuerall tenancie or nontenure is no plea in a Nuper obijt because of the priuitie of bloud i 7. E. 3. 16. 9. E. 3. Nuper obijt 8. 8. H. 6. 8. Nomomath Whether shall a writ de Particione 2. Diuision facienda be vsed against Iointenants or tenants in common as well as against Parceners or some other remedie shall be vsed against them Anglonomoph Before the Statute of 31. H. 1. The statute of 31. H. 8. giueth a writ de Particione facienda as well to Iointenants and tenants in common as to parceners 8. Iointenants and Tenants in common were not compelable by writ to make particion of landes and tenements which they vndiuidedly held But by that Statute a writ de Particione facienda may be sued against them as against Parceners k 31. H. 8. c. 1. Rastall Particion 3. But by the common Law Iointenants may make particion by mutuall assent without deede l 47. E. 3. 22. 19. Ass pla 1. And by such particion the iointure is seuered m 30. Ass pla 8. 2. The three seueral actions against Parceners Iointenants and tenants in common at the Ciuill Law Codicgn By our Law seuerall remedies are vsed against these which be both of one bloud or one familie which you haue tearmed Parceners as an action de familia herciscunda and an other maner of action against such as come to the land by ioint title though not by one discent which you haue tearmed Iointenants namely an action which is called of vs Actio pro socio and an other against these which come not in by ioint title but yet claime vnder these which came to the land by ioint title as by your Law are Tenants in common against whom or betwixt whom for the effecting of particion an action lieth at our Law which we call Actionem de communi diuidundo Canonolog To this our Law is not contradictorie Nomomath Let me now vnderstand in 3. Diuision what sort particion of landes or tenements and other thinges is made by your Lawes Anglonomoph Of landes and tenements the 1. Diuers kinds of partion at the common Law particion by our Law is to haue a seuerall part or portion as to haue a third part if there be 1. A particion to haue a third part or a fowerth part three Coparceners or a fowerth part if there be fower c. And if there be two Coparceners and one of them releaseth to the other 2. A particion by way of release with warrantie this hath been helde to be a good particion in Law n 44. E. 3. Counterplee de vouch 22. 34. E. 1. Partition 17. And particion of landes is sometime made by the graunt of 3. Particion by the graunt of a thing de nouo a thing de nouo as if an hundred shillinges of rent be graunted by one of the Coparceners to two of her sisters for equalitie of particion o 2 H. 6. 14. So when land entailed is deuided betwixt Parceners and a rent is reserued vpon 4. Particion by way of reseruation the particion for equalitie the rent reserued shall be in taile and of the same condition whereof the land was at the time of the particion made p 2. H. 7 5. 15 H. 7. 14. But a particion of a Mill is by taking the third part or the fowerth part of 5. Particion by taking the 3. part or the 4. part of the profites the profites as the case requireth q 11. E. 3. Briefe 478. And 45. Ed. 3. it was ruled that Milles Douecots and the like could not be actuallie locallie and as I may saie artuatim as it were by iointes diuided But if a woman ought to bee endowed of the third part of such thinges the third part of the profites ought to bee assigned vnto her r 45. E. 3. Dower 50. Yet 47. Edw. 3. the case was that two Iointenants were of a Mill and they agreed to repaire the Mill the one of them of the one side and the other on the other side in perpetuum and after the Mill was leased to farme and they tooke the rent seuerallie according to the moities and the Inquest said that their meaning was that the particion should bee good against them and their heires Å¿ 47. E. 3. lib. Ass pla 22. But Quaere whether the Shirife by writ de Particione facienda may make any such particion Likewise particion may be of a reuersion that one of the parceners shall haue the reuersion of three acres and the other the reuersion of other three acres and it may be without deede t Fitzh nat bre 62. D. 28. H. 6. 2. And so particion may bee made of a waie u 21. E. 3. 2. And also of a seigniourie uu 27. E. 3. 29. But of an aduowson the particion is to present by tourne x 38. H. 6. 9. 42. Eliz. 87. Corbets case per Iust Walmesley Co. Canonolog Our Law agreeth fully with 6 A difference in the Ciuill law where a thing that hath partes cohâ—rentes is diuided and where it
is not enlarged because the condition was against law the estate should haue beene enlarged by the performance of the condition but notwithstanding such condition yet the lease is good because that did not beginne by the condition But if an obligation be endorsed with a condition directly contrarie to law both the obligation the condition be void a 8. E. 4. 13. 2. E. 4. 3. And if a man be bound that he shall keepe the obligee without damages and doe not shew wherein such condition is voide because hee may suffer damages for committing treason murder or other felonie which thinges are against law and it is also against law to saue him without damages for such thinges so that the cōdition is void but the obligation is not void because such things are not expressely rehearsed within the condition so that the condition is not directly contrarie to law b 9. H. 4. Conditions 6. And conditions which are repugnant in themselues are voide in law as if a feoffement or gift in tayle be made that the feoffee or donee may not take the profits or vpon condition that they shall make no waste or vpon condition that the wife of the feoffee c. shal not be endowed or if a lease for life be made vpon condition that the lessee shall doe no fealtie these estates be good and the conditions voide or if an annuitie be granted prouiso that it shal not charge the person of the grauntor the graunt is good the condition is voide c 21. H. 30. 20. E. 4. 8. But if a man seised of land in fee lease the said land for yeares by indenture rendring rent prouiso that the lessor shall not distrein for the rent this is a good prouiso because the lessor may haue an action of dette d 5. H. 7. 7. but land or rent may be giuen to a man in taile so that he may alien to the profits of his issue and this is a good condition for it is agreeable to law and the donor may as wel giue conditionally as simpliciter in the taile e 46. E. 3. 4. G. garrantie 18. And 7. H. 6. it was held by all the Iustices in the eschequer chamber beside Iune that if a man make a feoffement with warrantie prouiso that the feoffee shall not vouch him and his heires and that if he doe the warrantie shall be voide this is a good prouiso But if the prouiso had beene that he should neyther vouche nor rebutte the prouiso had beene void for that had cut off all the force of the warrantie f 7. H. 6. 44. And if two grant custodiam parci de A. to I. capiendo feoda quae B. nuper parcarius cepit prouiso quòd scriptum non extendat ad onerandum vn des grauntors this prouiso was taken to be void because it restreyneth all the effect of the graunt in regarde of him and if land bee giuen in taile the remainder in fee vpon condition that if the donee or his heires do alien in fee that the donor or his heires may enter the opinion of the court was that this was a good condition for a man may make a condition in the negatiue of any thing which is prohibited by the law as if he make a feoffement prouiso that the feoffee shall not not committe felonie or that hee shall alien within age or in mortmayne and a man may enfeoffe A. and his wife vpon condition that they shall enfeoffe none other for that were a discontinuance otherwise it is that they shall not leuie a fine for that is contrarie to their estate g 10. H. 7. 8. So if a man make two executors prouiso that the one of them shall not administer this is a void prouiso because it restrayneth all the authoritie giuen in the premises as to him and the intent which agreeth not with lawe is to no purpose h 19. H. 8. 4. Dy. p Brud Englef And it hath beene agreede that if a man doe limitte an vse in taile with a prouiso that if cesty que vse doe such an acte his estate shall cease during his naturall life that this prouiso is repugnant and against lawe for the estate can not be determined in part And Iustice Walmsley sayd that when an estate is giuen to one it may bee defeated wholly by condition or limitation but it cannot bee determined in parte to one and giuen in parte to another for that is repugnant to the rules of law as if a man make a lease for life vpon condition that if the lessee pay not twentie pound that a nother shal haue part of the land this future limitation 6 What conditions impossible in fact are at the common law is voide i 41. Eliza. Corbets case 86. b. Com̄ And as to conditions impossible in facte such conditions if they go to the defeasans of an estate the estate notwithstanding remaineth good but estates cannot bee enlarged by such a condition impossible and if an obligation bee endorsed with a condition impossible the obligation is good and the condition is voide Therefore if a man seised of land doe enfeoffe a straunger vpon condition that if the feoffor go on foote from London to Stamford in a day that then it shall bee lawfull for him and his heires to reenter the condition is voide quia impossibile the estate good e 14. H. 8. 32. but if A. bee bound to B. that C. shall appeare in the common place Octab. Trin. in an action of debt brought by the said B. against C. retournable at the same day and C. appeareth the same day and his appearance is not recorded now the obligation is forfeited But if in this case C. had dyed before the day of the returne the obligation had beene saued because the condition became impossible by the acte of God f 9. E. 4. 25. 15. H. 7. 2. 38. H. 6. 19. Nomomath Now I pray you shew vnto me 6. Diuision whether conditions are to bee expounded strictly and according to the rigorous sence of the wordes are according to equitie and the exigence of the case so that the circumstances of a mans speech or actions shal haue the regiment of conditions Codicgn Conditions are in our lawe taken 1. Conditions in the ciuill law are taken according to equitie according to equitie For if I graunt to one an annuitie of ten pound yearely quamdiu res meas gesserit the law maketh this sence of these wordes that he shall haue ten pound yearely si res meas gesserit together with a limitation g l. pater §. fi ff de condi demon So if I buy of one the fishes which are taken by him though he haue not alreadie taken any fishes yet the wordes doe imply a condition that that the buyer shall haue them if any bee taken So if I say Acceptis centum solidis a Titio instituo eum haeredem it is
because he did not giue vnto him the moitie of the other fishe This was adiudged in the Kinges Bench. But now suppose that the condition doth extende onelie to some particular estates whether shall the other estates depending bee totallie defeated by the breach of the condition And surelie our Law is that the breach of the condition shall defeat no estate but onelie that whereunto it is annexed For the case was 3. Mar. that a man deuised land to his wife vppon condition that shee should bring vp his eldest sonne the remainder to the second sonne The elder sonne entreth for the condition broken hee shall onelie defeate the estate of the wife And if the tenant for life and hee in the remainder ioine in a feoffement vppon condition that if such an acte be not done that the tenant for life shall reenter this doth not defeate the entire estate of the feoffee i 3. Mar. 125. Dy. And if a gift of land be made in taile the remainder to the right heires of the donee vppon condition that if hee alien in fee then the donour may enter if the donour enter for the condition broken the estate taile is onelie defeated k 11. H. 7. 6. 13. H. 7. 23. 10. H. 7. 11. So if a man lease land for life by deede indented the remainder ouer in fee rendring a rent with clause of reentrie for non payment by the tenant for life and to reteigne the land during his life If hee enter for the condition broken he shall haue the land onlie during the life of the tenant for life l 29. Ass pla 17. Nomomath I giue yee great thankes for the vnwearied continuance of your paines and though I bee in questioning at a non-plus yet I see your inuention and memorie are not grauelled nor dryed vp parched as it were with summers drought I praie you therefore let vs still conuerse together vnder one roofe within my walles there is no Sinon no Dauus no Momus but chast learning cabboned with frugall contentment that if God doe still vouchsafe the Moone-diall of this darksome life with the reflexe of his intellectuall illumined influence this triple-wheeled clocke may still be kept in motion by the diuine agilitie of his Lawfauouring spirit A TABLE OF THE Sections or Diuisions of the principall pointes matters and questions which are handled in euerie Dialogue The Diuisions and principall contents of the first Dialogue of Prohibitions and Consultations The 1. Diuision 1. THe originall of tithes is inquired of 2. The councell of Constance is said to haue condemned Wicklife for holding tithes to bee pure almes The 2. Diuision 1 The originall of tithes is demonstrated to be by the law of God 2. God his deputies for the receipt of tithes are set downe 3. The heathens which knew not God had great regard of of paying tithes 4. Lucullus is specially commended for the paying of tithes 5. Camillus is likewise commended for his diligence in procuring tenth to be payed 6. The Romanes carefull in paying first fruits 3. Diuision 1 Whether Parsons ought to haue no more liuing then tithes 2. It is denyed by the Canonist that they ought to haue no more liuing 4. Diuision 1 A lay man by the Canon-law may prescribe in paying a speciall portion in lieu of tithes 2. The ciuill lawe agreeth thereunto 3. By the common lawe a man may prescribe in paying a temporall recompence in lieu of tithe 5. Diuision 1 Two sortes of tithes are set downe by the Canonist some feudall some ecclesiasticall 2. The Church onely holdeth conusaunce of the right of tithes by the Cannon lawe 3. The king of Fraunce his edict touching tithes is sette downe 4 That by the Canon law where the question of tithes is facti and not iuris the examination thereof may belong to a laye iudge 5. Where the suite of tithes is betwixt clergie men though it bee meerely possessorie yet it be longeth to an ecclesiasticall iudge by the Canon law 6. Diuision 1 The nature of feudall tithes is opened by the Canonist 2 Charles Martle is accused of Church-pillage 3. The Canonist telleth a strange tale of Charles Martle 4. It is thought of Nomomathes to bee but a fable 5. One of the ancient statutes of England is compared with the aforesaid edict of the king of Fraunce 6. The common law agreeth with the Canon in the attributing of the decision of the right of tithes to the spirituall iudge 7. Where one parson may sue a spoliation against the other in the spirituall court 8. The executors may bee sued in the spirituall court 9. Of what trees tithes may bee demaunded by the statute of 45. E. 3. 10. That the rent payed for tithes vpon a lease for yeares is a laye chattell 7. Diuision 1 A precept issueth with a monition vnder payne of excommunication for the due satisfaction of tithes 8. Diuision 8 The degrees which the Canon law obserueth in punishing offences in the clergie 2. Two sorts of excommunication sette downe by the Canonist 3 The compulsorie statutes of England for payment of tithes are mentioned by the barrister 4. Impropriate tithes at the common law are compared with feudall tithes 9. Diuision 1 The Ordinarie ex officio may cite men to pay tythes 10. Diuision 1 Two sortes of heretickes formatus and suspectus 2. In what cause the wife and children of heretickes shall enioy their landes 3. Heretickes by the ciuill law not punishable by fire 4. The Canonist poasteth the punishment of heretickes to the common law 5. The professor of common law bandeth backe againe the punishment of heretikes to the Canon law 11. Diuision 1 What thinges may bee tearmed Church-land by the ciuill law 2. Of Churchyards the spirituall Court shall hold iurisdiction by the common lawe 3. The right of gleabe lande is triable by the common law 4. Lands deuised not subiect to the iurisdiction of the ecclesiasticall Court 5. Suites for chattels real must be in the spirituall court 12. Diuision 1 That ius patronatus by the Canon law is determinable in the ecclesiasticall court and that it passeth by the word ecclesia 2. The diuers significations of the word ecclesia at the common lawe 3. The interest of the Parson patron and Ordinarie in the Church is shewed 4. What thinges doe make a patron by the Canon law 5. Ius patronatus is one of the proper obiects of the common law 6. That an aduowson lieth in tenure 13. Diuision 1 Punishment pro laesione fidei concerning a temporall acte is not to be adiudged in the ecclesiastical Court 2. Periurie in an ecclesiasticall court punishable in an eclesiasticall court 3. Lindwoods authoritie touching punishment pro laesione fidei in temporall matters at the ecclesiasticall law is not admitted 4 The barrister disproueth the generall citations of Bishoppes ad Sacramenta praestanda by the common lawe 5. Nomomath encountreth him in this point 6. The ciuill law agreeth with the Canon in matter
§ Sed natural instit de iu. na as I haue sufficiently shewed in my Direction to the study of the Law Cap. 7. 8. but onely of such thinges as belong to them by the Ciuill law yet by the opinion of the later Ciuilians this is helde to bee no law but that the Princes haue for speciall causes free disposall of their landes and goods as Decius fully proueth k Deci. Cons 209. in casu 2. 69. consultus 390. quoniam 519. visis 557. accurate and this later opinion seemeth to bee more reasonable and more consonant to the truth for first though the distinction of demesnes and the propertie of goods be parcel of the law of nations yet the meanes wherby they are acquired are prescribed by the ciuill and common lawe so that they are not altogether parcell of the law of nations l Bal. â—a in l. omnes C. Si con ius vel vtilitat pub Againe the right of demesne and property is not alike in all nations m Herodot li. 4. Strab. lib. 11. Arist lib. 2. polit Tacit. de mor. Germa Caes lib. 4. 6. de bel Gal. but is moderated and ordered by the lawes of particular coÌ„mon weales But suppose that the king wil take away from any of his subiectes the right and power of vsing and pursuing an action for the recouery of their lands goods chattels or dammages Surely this is permitted by no law but by the ciuill n l. 2. C. de prec imp off and common law expressely prohibited for the king cannot grant to any person that he shal not be impleaded or sued in this or that action though his highnesse may graunt that I. S. for trespasses or any thing done wrongfully in his mannor of Dale shal hold conisance of pleas within the same mannor yet in this case he doth not take away the action of the partie but doth onely restreine him to bring his actioÌ„ in a certain place o 8. H. 6. 19. But here it may be obiected that a king or absolute monarch may p li. vlt. C. de consul without cause seise the lands goods of his subiects for it is plaine that a king hath more power ouer his subiectes then the father hath ouer his children but by the ciuil law the father may take away the goods of his children when hee will q l. placet 79. D. de acquir haere l. acquirit 10. D. de acquir re do therefore the king may take away c. To this reason grounded vpon the ciuill lawe I do thus answere that by the law of nations kinges haue not such an indefinite power ouer their subiects as fathers by the ciuill law haue ouer their children for by the law of nations kinges were chosen and ordeined at the first for the safegard and protection of the lands goods persons of their subiects so that they may not without cause bereaue them of their goods and therefore there is a good rule in the ciuill law that in priuatorum agris nihil ne publico quidem consilio cum ipsorum iniuria capi ius est r l. Venditor 13. D. de com praed And to that purpose Cicero speaketh well Videndum erit ei qui rempub administrabit vt suum quisque teneat neque de bonis priuatorum publice diminutio fiat and for this cause God did appoint a certain portion of land to euery tribe of the Israelites Å¿ Deutero 17 and by reason of a priuate title Naboth would not sell or chaunge his vineyard with Achab t 1. Reg. 21. and in the inauguration of the king of Hungarie this was exacted of him by oath vt iura regni integra conseruaret u C. in tellect 33. ex tr de iureiuran And in the ciuill law it is said Qui pleno iure Dominus est alienandi dissipandi disperdendi ius habet a l. 7. cod de relig l. sed etsi l. 25. §. consuluit D. de haeâ—ed petit And againe suae quisque rei arbiter ac moderator est b l. in remandat 21. C. de mand So that it is euident that without cause the propertie which subiectes haue in goodes and landes may not bee altered by their prince And therefore wittily sayeth D. Gentilis that they which argue to the contrarie do not dispute or drawe their arguments ex castis fontibus Philosophiae aut ex ipsis iurisprudentiae riuis sed escholis sophistarum hallucinati sunt Theologi adulati sunt iurisconsulti qui omnia principibus licere asceuerarunt c Alberic Gentil Dec. 1. disput 2. disput I would not be mistaken in this Chapter sithence I hold an indifferent course betwixt prince and people neither consenting to them which say that princes may seise the lands and goods of their subiects without cause nor to them which thinke that they may not seyse their lands and goods for any cause but my resolution is and the summe of this discourse is if it bee diligently and impartially obserued that princes may lawfully claime and take to their owne vse the lands and goods of their subiects for the causes abouesaid and prescribed by lawe and not otherwise and by this word Princes I meane none but absolute Monarches for the law of nations alloweth this prerogatiue to none other And therfore I do greatly like of that saying of Hipocrates vrged in the ciuill law Lex est rerum omnium domina quia scilicet ciuitatis cuiusque ciuium singuloruÌ„ patrimonium constituit definit tuetur Lex sola dominiuÌ„ rerum confert sola dominij acquirendi modos constituit citra quos acquiri nullius rei dominium potest f §. 2. de bon posses apud Vlpi eo tit reg 19. This foundation being laid I hope my assertion may firmely stande that the law of England in giuing to the Queene the lands and goods of subiects for some peculiar causes is iust and reasonable as when a true man is pursued as a felon and he flieth and waiueth his owne goods these are forfeited as if they had beene goods stolne g 29. E. 3. 29. 37. H. 8. Br. Estray 9. Stam. fol. 186. a. And so if a man be outlawed of felony or treason he shall forfeyt all the landes tenements which he had at the time of the felony or treason coÌ„mitted or at any time after as well as if he had beene attainted by verdict h 28. H. 6. 5. howsoeuer M. Parkins holdeth opinion that attaynder by outlawrie shall haue relation to the exigent as to the landes and tenements so that a feoffement of land or a graunt of rent made before the exigent awarded by him that is attainted in such manner is good in his conceit but he saith that as to an attainder by verdict that it shal haue relation to the time of the felony done according to the supposall of the inditement as to
part of the father that the land shall discend to the next heire of the parte of the mother that is to the race of the heyre of the males of whence the mother is discended rather then to others and in this case of Clere because the bloud which was betwixt the vncle of the part of the mother of the heire and the heire himselfe came immediatly by the womā but the bloud which was betwixt the cosin germane of the fathers side him though it came originally from the woman namely the grandmother yet it is deriued to the heire by the males so that the dignitie of the bloud doth surprise and excell the proximitie of the degree therefore it was adiudged that the cosin should haue the land i 15. Eliz. comm cleres case 442. The fourth Chapter That in making title by prescription and continuance of time immemoriall all nations haue consented OF all worldly thinges time is most puissant for it endeth some things quickly some things once and at last some things it preserueth some things it continueth vnto the end of the world and the force of time is pretily described in these poems Res omnes aeurum chalibem deglutio ferrum stagna lacus fontes ebibo tum fluuios Tabida consumit lignum lapidesque vetustas nullaquè res maius tempore robur habet If by the course of nature time be such an incroacher vpon other things then surely arte law doth imitate nature which giue vnto it such power and authoritie as to chaunge to raise to alter to defeat to strengthen and to establish titles neither doth the law of nations attend the strict circumstances of the ciuil or common law in which these two lawes doe square for by the ciuill lawe there is required iust title which the common law requireth not and bona fides a Gl. si c. illud de prescrip which the common law requireth not and continuall possession which the common lawe onely requireth Prescription was first brought in that there might be a certainty of titles and peaceable possession without contradiction for a long time might turne to a right wherefore it is well obserued in the ciuill lawe bono publico intraducta est vsucapio praescriptio vt sit aliquis litium finis b b. lib. 1. de vsucap whereupon that speech of the Lacedemonians in Isocrates is grounded Wee holde this lande giuen vnto vs by the posteritie of Hercules confirmed by the Delphicke Oracle and the inhabitantes of it being ouercome of vs heere note a triple title in showe and yet all these in effect but a prescription yee knowe well that all possessions eyther priuate or publike to bee confirmed by prescription of long time we haue held Messana more then foure hundred yeares c Isocra in Arch. And so Iepthe did pleade prescription against the Ammonites d Iudic. c. 11. This land said he haue wee possest three hundred yeares The French maintaine their title of Fraunce onely by prescription as Bodinus confesseth dd Bodin lib. de repub for conquered it was by king Edward the third that happie triumphant Monarch assured to King Henry the fifth and his heires e Graft in H. 5 not to Queene Katherine and her heyres f Pet. Mar. comm in lib. iud And some Diuines holde for others doe oppose themselues against this lawe of prescription g Aug. de te ser 105. Epiphan and obserue that the Iewes neuer made question of the title of their Semi because the Cananites did defend themselues by the prescription of 500. yeares wherefore Artabanus the Parthian king did as Tacitus sayeth Per vaniloquentiam vainely demaund of Tiberius the territories possessions of the Macedonians hauing bin h Tacit ann li. 6 a long time possest of Cyrus and Alexander And Soliman more soundly did demaunde the rightes of Constantine the Emperour after a thousande yeares i Ioui 30. 34. But most vnaduisedly of all did the king of Persia demaund all these thinges which did belong to the Persian Empire from the first foundation of their Monarchie vnto the conquest of Alexander Magnus of Constantine and his sonne and of Alexander Seuerus k Herodia li. 6. zon Ammi lib. 17. as if the auncient inhabitants of Pannonia should now claime Hungarie which the Hunnes did conquer name and to this day keepe and vaine was the quarrell which Masinissa made to the Carthaginians lande l Liui. lib. 34. alleadging that they ought to haue no more then Dido the Tyrian Queene enioyed which was no more then coulde bee compassed by the hyde of an Oxe being curt into thonges for they had possest these landes almost seauen hundred yeares likewise weake was the title which Antiochus the great pretended against the Aetolians and the Ionians because these people were once subiect vnto his auncestors hee is well confuted of the Romanes by the lawe of prescription that though his great grandfather did atchiue these cities by warre yet his grandfather and father neuer enioyed them but the cities enioyed their libertie There be some interpreters of the lawe which thinke the king of Fraunce by prescription to be exempted from the Emperours subiection m Fulg. Sacc lib. 1. C. tit 1. against whom rather adulatoriously then aptly Alciat replyeth that no prescription of time wil hold place against the Empire n Alciat lib. 5. de iust for that is not true in a prescription of time which is immemoriall that is when no man as it may be commonly beleeued hath eyther seene or heard the contrary and this by the ciuill law is the space of one hundred yeares o Alexan. 5. Cons 16. Alciat 3. cons 24. But here before I wil grant that such prescription will hold against a king or an Emperor this is onely in such case where neyther possession hath beene had nor clayme made against the said king or Emperor for if claime only haue beene made as the kings and Queenes of England haue done in entitling themselues kings and Queenes of Fraunce and beare in their scutchions the ensignes and armes of that kingdome and so keep the ciuil possession of that kingdome though they haue lost the corporall possession in such case I do not thinke that the prescription of a thousand yeares ought to preuaile but in a case of a common person prescription will hardly run against the prince Therefore it hath beene held in our bookes that if the kinges tenant in Capite bee seised of an aduowson and the church happeneth voide and hee dyeth and the sixe monethes doe passe nay suppose sixe score yeares doe passe p 14. H. 7. fol. 22. then an office is found the king shal haue the presentment notwithstanding the laps before the office But if the question be asked whether the ordinary may present by laps against the king and if he may not how the cure shall bee serued in the meane time
vaine sophistrie in steade of true religion and such societies and such families whether of loue or of lust I can not well define which delight in latebris are worthy to be sent ad carceres that they may there liue in tenebris for it is fit to send corrupt humors which ouerloden and pester the bodie in latrinam For surely such Fanatickes may doe as great hurt in a common weale as the Pythagoreans did in Greece and Italie who pretending themselues to bee professors of wisedome did bring a great number to the admiration and imitation of them and finding such strength in the weakenesse of the multitude they beganne to plant their ramme and sette their force against kingdomes common weales and had thought vtterly to haue subuerted them but their companies were quickly dispersed and the greatest parte of these companions was destroyed by fire and sword a Polyb. li. 3. Now to speake somewhat of the liberties of a citie S. Paul when he was by the commandemēt of the magistrates apprehended being accused that he troubled the publike tranquilitie by seditious assemblies professing himselfe to bee a citizen of Rome hee appealed to Caesar b Act. 25. v. 11 though hee were by nation a Cilician by bloud an Israelite by tribe a Beniaminite yet because his father c Acto 22. v. 28. had beene a citizen of Rome the liberties were affoarded vnto him he likewise when he was commanded to be scourged pleaded for himselfe that he was a Romane d ibid. v. 25. But because the abundance of liberties of all the cities of Asia Africke and Europa are sufficiently knowne I will not stay any longer vpon this point but wil passe to matters of greater importance and more difficultie The ninth Chapter That the distinguishing of demesnes the difference of the degrees callings of men is according to the law of nations COnfusion breedeth alwaies contention partition peace according to the old prouerb Diuide et impera for which cause our ancestors did thinke it best to distinguish their dominions and inheritances by lottes and boundaries as Abraham Lot in Palestine Masinissa and the Carthaginians in Numidia and Mauritania the Romanes and Nolanes in Italie the Romanes and Carthaginians in Spayne and Sicilie the Emperour Valens and the Gothes in Missia and the regions on this side Danubius through the whole tracte of the Romane Empire was a partition made by Theodosius betwixt his sonne Archadius whom he prefected ouer Bizance and all the orientall partes and his other sonne Honorius to whom he allotted Roome and all the occidentall countries and so Darius would haue made a partition with Alexander of the whole world that the one of them shold haue all on the one side of Euphrates the other all on the other side yet in the first age and infancie of the world this kind of partitioin was vnused and vnknowne as may appeare by these authorities first of Virgill who saith Ne signare quidem aut partiri limite campum Fas erat a Virgi Georg. 1. And of Tibullus non fixus in agris Qui regeret certis finibus arua lapis b Tibul. 1. Elegi 3. And that of Seneca Nullus in campo sacer Diuisit agros arbiter populis lapis c Senec. in Hippoli act 2. yet the case was altered when Ouid writ thus Gentibus est alijs tellus data limite certo Romanae spatium est vrbis orbis idem d Ouid. 2. Fasto And vpon good reason was it altered for as Boetius saith well Dimensiones terrarum terminis positis vag antibus ac discordantibus populis pacis vtilia praestiterunt e Boeti in geomet And the great vse of limits and boundaries Plutarch sheweth when he condemneth the vnsatiable couetousnes and illimited encroachment or inuasion of Romulus verie wittily Noluit Romulus mensurâ proprij agri prodere mensuram alieni siquidem virium compedes terminos esse nouit seruarentur iniuriae iudicium si non seruarentur f Plut. in Num. pr. R. 15. And this was the cause that Numa Pompilius the king of the Romanes did cause as well a publik perambulation to be made throughout his whole kingdome as priuate limitations bounds betwixt partie partie and for the more solemne and effectuall confirmation and establishing of this course he did dedicate a chappell vpō the top of the Tarpeian hill vnto Terminus and this idoll was made of stone g Plut. in Num. He was set in a chappell as not fit to be remoued hee was made of stone as hard to be remoued he was placed vpon a high rocke as not possible to bee remoued and to this idoll nothing was sacrificed but cakes pulse and the first fruites of the field the meaning doubtles of Numa was good if it had not beene signified set forth by an euill meane For to make him immoueable was to good purpose and agreeable to the truth of diuine iustice Wherefore Salamon saith that which also is commaunded in Deuteronomie Thou shalt not remoue the auncient boundes which thy fathers haue made h Deut. 27. 17 Prou. 22. v 28. 23. v. 10. but the manner of diuiding lands dominions according to the custome of nations is fully set downe by M. Littleton though applyed to another purpose it is fiue-fold 1. By setting out an equal rate of the lands to be diuided 2. By the agreement of frends or intermediation of others 3. By casting lots 4. By writ de partitione facienda at the commō law the action de herciscunda familia at the ciuill law 5. By making an vnequall partition equall by a forrein reseruation i Littlet lib. 3. c. 1. Distinctions likewise of the degrees of men hath beene in all nations in all ages established obserued and vsed For the aduancing of noble men aboue them of lesse note and the preferring of the gentleman before the yeoman and peasant is very ancient and hath beene vniformely reteigned neither is it to bee maruelled at for nature her selfe hath tought the nations her schollers this lesson Trauaile through all her kingdome that is through the whole world you shall find this difference in force and of great validitie Consider the scituation of the celestiall orbes and ye shall note that the fierie heauen is placed aboue the chrystaline as more worthie both these aboue the firmament the firmament aboue the other Spheares as surpassing them Marke the birdes of the ayre ye shall perceyue that the Eagle the Phaenix and the Parott holde preheminence aboue the rest Looke vpon the riuers ye shall obserue Euphrates in his forme and compasse of his streame to be more excellent then Ganges Ganges better then Danubius Danubius better then Tagus Tagus then Padus Padus then Tempse Tempse then Seuerne Note the fishes of the sea yea shall find these to haue place aboue the rest the Whale the Dolphin the Sturgeon
common weale and by the continuall practise of nations most ciuill which onely course I obserue in this discourse the right of Primogeniture or elder-brothership is fenced supported and defended against this last decree of the Millanasses and that first of the Persians For Herod the king of the Iewes did preferre in the succession of his kingdome Antipater who was borne before he was king before Alexander and Aristobulus begotten after he was king q Ioseph lib. antiquit 16. And many yeares after in Hungarie Bela their king being dead Geysa being borne when he was a priuate man was inuested with the Crowne r Fl. Blondus Decad. 2. lib. 6. Micha Ritius lib. de regi Hungar. 2. and before that Otto the first could be setled in the Empire of Rome his brother Henry made a quarrell to it because he was borne when his father was Emperor But the matter discending to armes and battaile victorie did adiudge the Empire to Otto ſ Sigebert in Chron. Wherefore two or more contrarie examples are not in this case to be regarded As that of Genzericus the king of the Vandales who made his testament in this forme or rather this Law in forme of his testament Si Rex moritur qui ei genere proximus et natu maximus erit regni haeres esto for Procopius noteth his great age when he made this Law and it may be that others will note him for his dotage if he did amisse for his discretion if he did it to preuent a daunger t Procop. lib. de bel Vandal 3. So when Charles the king of Sicely died he had two sonnes Charles Martell and Robert Martellus died liuing his father but leauing a sonne whereupon the Lawyers had plentiful matter of disputation offered vnto them whether the sonnes sonne should be preferred before the vncle in the possession of his graundfather but by the Popes meanes Robert obteyned the kingdome But the Emperour Fredericke reuersed this sentence and the Pope cancelled his rescriptr. But D. Bartolus giueth this reason of the Popes doinges because the kingdome of Sicilia was one of the fees of the Church of Rome so that it did not belong to Robert by any lawfull succession but by the graunt and inuestiture of the Lord of the fee x Barto in Arth. post fratr C. de legit haered Neither is it materiall that the Nomades Barbarians did preferre the yonger bretherne before the children of the elder bretherne as Strabo reporteth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Strabo lib. 16. yet I will graunt that in the succession of regall dignities the worthines of bloud is lesse to bee respected then in the succession of common inheritances because in that case the commoditie of the subiectes and the abilitie of them that are to succeede is politikelie to bee respected And therefore diuers Ciuilians doe with vnited consent pronounce that the good estate of the kingdome and subiectes the profite peace and safetie of the same is more to be heeded quà m sanguinis series the course of bloud b Luc. de Pen. in 5. nepot C. qui num lib. 10. et in l. 1. C. de lyro lib. 12. Bald. in c. 1. de feud March And Roboam preferred Abias his yonger sonne before his elder bretherne in the succession of his kingdome c 2 paralip 11 And Salomon the yonger brother d 2. Reg. 1. was preferred before his elder bretherne But this must be done warilie and by the warrant of a good conscience otherwise it can neyther please God nor profite man least a king doe by his choise preiudice his subiectes as Micipsa did by the adoption of Iugurtha e Salust in bel Iugurth But the reasons are manie and forceable wherefore the worthines of bloude shall in the course and conueiance of inheritances bee principally respected First Ius quod personae inest per modum substantiae est ab ea inseparabile et in nullo alio subiecto potest verificari f Arg. l. for did C. de excus mun lib. 10. But ius primogeniturae is in the eldest sonne or in his issue per modum substantiae therefore it is inseparable from him and cannot extende to any other Secondly the aucthoritie of Vlpian prooueth it affirming that hee is a patritian who is borne before his father was made a Senator as well as he who is borne after that hee is possessed of the Senatorie calling g l. Senator S. D. de Senat. Thirdly it is apparant by manie places in the feudall Law that sonnes and nephewes may succeede in the fees and inheritances of Dukes Marquesses and Earles and so it is of the inferiour and vulgar sort of men And it is well said of D. Hotoman Ius sanguinis quod in legitimis successionibus spectatur ipso natiuitatis tempore quaesitum est Fourthly it should bee against all Lawes proximitatis graduum that they which are in a more remote degree the worthines of consanguinitie should be preferred before them that are in a neerer degree Fifthly because Primogenitura is an inseparable incident to the eldest sonne and whatsoeuer is claymed by this must bee claymed by the person of the eldest sonne and none can succeede in the place of the first begotten as first begotten because there cannot be two first begotten But no Law more respecteth the worthines of bloud then the common Law which preferreth the brother before the sister in case of discent the elder brother before the yonger whereas the middle brother purchaseth land the sister before the vncle and the vncle before the cosin h Littlet tit Fee simple and all these particular prerogatiues of kinred Mast. Littleton windeth vp as it were in one clew when he saith that when a man purchaseth land in fee simple and dieth without issue euery one that is his next cosin collaterall for default of issue may inherite and therefore it was well and wisely agreed by the Iustices decimo quinto Elizab. in Cleeres case that in a collaterall discent from any which purchaseth landes and tenements and dyeth without issue the heires of the part of the father and which are of the bloud of the auncestors males in the lineall ascension by the father in the same degree as the brother of the graundfather of the fathers side and his issues be they male or female shall be preferred before the brother of the graundmother of the father side and his issues And so the brother of the great graundfather of the fathers side namely the brother of the father of the father of the father of the purchasour and his issues bee they male or female shall bee preferred before the mother of the great grandmother namely the brother of the mother of the father of the father of the purchasor and his issues For the female sexe is more base then the male in lawe And it was likewise agreede that if the purchasor dyed without issue and hath not any heire of the