lie against him as receiuor of his money But if his bailie be also bailie of his mannour and this Obligation be deliuered vnto him as bailie of the mannour then an Accompt will lie against him as bailie of the mannour habentem curam of this Obligation b 2. R. 2. Accompt 46. for a bailie of a mannour may well be tearmed a generall bailie And Brian 2 R. 3. putteth an expresse difference betwixt a generall and a speciall bailie A man saith he may be bailie of a mannour or of an house if he be bailie of a manour he hath 3. What things belong to the charge of the bailie of a manour charge of all the oxen horses ploughes belonging to the manour and of all the profites arising and growing out of the manour and he shall be accomptable for them But if he be bailie of an house he shall not be accomptable but onelie for the house c 2. R. 3. 14. per Br. But this is the difference betwixt a bailie and a receiuor according to the bringing of a writ of Accompt A writ of Accompt will not lie against one as bailie for a certaine and a peculier thing But whereas A. giueth twentie pound to B. to merchandize for him and to his vse for the profite hereof because it is a thing vncertaine a writ of Accompt will lie to the ende that by the writ of accompt the incertaintie may be brought to certaintie d 9. H. 5. 3. per Hyl. But in your case proposed the bailie is to bee intended a speciall bailie But this generall and currant rule we haue touching all bailies as well generall as speciall If the bailie be preiudiciall to his his master he is to make recompence to his master As if my bailie sell a quarter of corne 4. That by the common Law if the baile be preiudiciall to his Master he is to make recompence for fortie pence whereas he might haue sold it for vj. s' viij pence he must aunsweare for this e 6. R. 2. Accompt 47. per Belkn So if he buy thinges for xx pound which are not worth x. li. he shall not be allowed this vpon his accompt though he did as much as he could according to his knowledge f 41. E. 3. 3. per Finch But if a baylie doe a thing which toucheth his bayliwicke and which duetie bindeth him to doe as if hee pay rentes or other dueties which are due of the mannour he shall be satisfied for this otherwise it is if hee doe any thing which toucheth not his bailiwike for then hee ought to haue speciall warrantie g 42. E. 3. 6. per Belkn Canonol Our law dissenteth not from these assertions Nomomath Suppose I giue money to Titius 2 Diuision to buy for mee and to my vse the land of Sempronius lying in dale whether is Titius accomptable to me for this Codicgnost There is no question but he is h ff acti mandat direct l. si vero §. fi but if your selfe or some other to your vse doe 1 By the ciuill law the bailie is discharged if the maister intermeddle buy the lande of Sempronius now is Titius discharged vnlesse he more expediently and with lesse cost might haue bought it of Sempronius i ff eod tit l. si procurator §. mandat act Anglonomoph This is not repugnant to our law and in all cases a writte of accompt lyeth where a man is put in trust to procure the profite 2 That by the common law as wel as by the ciuill hee that is put in speciall trust to puocure the profit of an other is accomptable of another and is not his apprentice for if the king graunt to a village certaine tolle of things which shall bee fold in the same village and the townesmen of the village make collectors to receiue the toll if afterward the collectors will not make accompt hereof they may haue a cōmission out of the Chauncerie to enquire who hath receyued this tolle or money and to heare their accomptes and to determine the matter k Fitzher N. B. 119. f. 114. c. And 8. E. 4. it was said by Nedham that the Churchwardens of a certaine parish might haue a writte of accompt against their predecessors but the parishioners could not l 8. E. 4. 6. per Nedh And so the master of an hospitall may haue a writte of accompt against him that was receyuor or bailie in the time of his predecessor m Fitz. N. B. 117. F. And 30. E. 3. a writ of accompt was made by a master of an hospitall against one as the bailie of his Church and this forme of writ was allowed and the action was brought by him as parson he being not named parson in the writ and yet the writte was allowed because hee demanded nothing which might continue to the Church for euer as he must do in a Iuris vtrū n 30. E 3. 1. 13. H. 4. Accompt 124. 29. E. 3. 60. And 4. E. 3. a writ of accompt was brought for a receit of certain money in the time of his predecessor o 4. E. 3. Accompt 97. and 34. E. 3. in a writ of accompt against one as the bailie of his woode the pr declared how the def was the bailie of his wood to cut it and to sell it and the declaration was allowed without saying that hee did any way administer for this must come in by way of answere and so the writte may bee against the bailie of a mannor habentē administrationem bonorum Moubrays opinion was that the bailie of a wood ought to make account for the fruits of the trees herons and hawkes p 34. E. 3. Accompt 131. But a writ of account cannot be brought against one as his bailie vnlesse he be the bailie of his house land or mannor q 9. E. 3. Accompt 95. And if one ought to be bailie by reason of his tenure though he do not occupie the office yet he shall be charged in a writt of accompt r 18. H. 8. 2. And if a receiuor or bailie do make a deputie yet the writ of account ought to be brought against the bailie himselfe or against the receiuor himself not against their deputies for the deputies resceiue the money and administer the goods to the vse of the master ſ Fitzh N. B. 119. B. but a writte of accompt will lie for the receiuor against his deputie as for the vicount against his deputie t 11. R. 2. Accompt 48. And a man may haue a writte of accompt against a woman as receptrix denariorum u 8. E. 2. brief 847. Fitzh N. B. 118. D. And 4. E. 4. there is an excellent difference taken where a woman is bailie or receiuor to a man and after she taketh a husband a writ of account lyeth against them both as econuerso it lyeth for
stretcheth verie farre in our law for it may extend to the procheinamy the next friend by whom an infant or one within age shall sue an action or to the warden of the infant by whome the infant shall be defendant in an action c 13. E. 3. Attorney 76. 40. E. 3. 16. And an infant was receiued to sue a writte of error by his warden d 27. Assi pl. 53. Fitz. N. B. 27. H. And an infant shall not remoue hir warden nor disauow his next freind which sueth an action for him e 34. Assis pl. 5. 27. Assis pl. 53. But by a writte out of the Chauncerie the infant may remoue his warden or the Court by their discretion may remoue him f Fitzh N. B. 27. M. 27. Assis pl. 53. But as to the making of an Attourney we haue this rule in our lawe Nemo potest facere Atturnatum nisi habeat proprietatem in re ideo custos non potest facere Atturnatum quia non habet proprietatem g 13. E. 1. Attourney 103. In a writte of Attaint the defendant made an Atturney in the Chauncerie by a common writte de Attornato faciendo the tenor whereof was ad lucrandum perdendum in loquela quae est coram Iustitiarijs per breue nostrum inter I. S. petentem I. N. tenentem de placito terrae c. but the warrant of the plaintifs attourney must be thus ad conuincendum 12. Iur. de placito terrae c. per viginti quatuor c. h 2. E. 3. Garrant dattour 21. But the power authoritie of the attourney is by the iudgement determined and carried backe to the master Wherefore it was saide 4. E. 3. that after iudgement the attourney was not receiued to release the dammages nor to acknowledge satisfaction i 4. E. 3. Attourney 18. 34 E. 3. 95. 34. H. 6 51. 1. E. 2. Garrant 22. contrarie to the booke of 33. H. 6. k But there is great difference betwixt a bailie a deputie for though a bailie haue a larger scope of authoritie and power then an atturney or sollicitor yet he hath but an authority but a deputie hath an imperfect interest mixt with an authoritie which by cases accomodated to this purpose shall be euident The bailie of a mannor cannot lease the lands of his Lord but onely at the will of the Lorde for I doe not take the booke of 2. E. 4. to be law that the bailie may lease lands to hold at his owne will yet that booke giueth an action of debt if a rent bee reserued vpon the lease to the Lorde not to the bailie l 2. E. 4. 4. but 8. E. 4. is the better law in my opinion where it is helde that the baily of a mannor cannot make any lease of the mannor nor of any parcell of it without speciall commaundement of the Lord to doe it m 8. E. 4. 13. But if he cut downe trees or kill any beastes going vpon the land of the manour without lawfull cause an action of the case will lie against him n 2. E. 4. 13. And 19. E. 3. it was held that by no vsage in the world a Bailie or Steward of a manour could lease the freehold o 19. E. 3. Feoff 68. But it is held by Catesby 8. E. 4. that the Lord may giue power in expresse wordes to his bailie to lease land and if the bailie hauing receiued such authoritie doe lease an acre of land vnto a stranger and doth not giue to the Lord notice thereof if the Lord enter into this acre the lessee may punish him by an action of Trespas and yet he had no notice thereof but the reason is because he had before giuen such a power to the bailie p 8. E. 4. 1. et 9. Dutch de Suffolkes c. per Catesb And therefore I thinke that the book of 2. R. 3. which is that the bailie hath power to lease land and to improoue it is to be intended by speciall warrant and authoritie of the Lord committed vnto him But it seemeth that of himselfe he may sell trees if there be great abundance and may repaire houses with them but he cannot reedifie houses with them if they be falne q 2. R 3. 14. 12. H. 7. 25 But that a deputie hath an interest conioined with an authoritie in the thing which is deputed vnto him may be thus prooued 11. Elizab. it was cleerely resolued that two daughters being heires to the Constable of England might make their sufficient Deputie to exercise the office for them and after mariage that the husband of the elder onelie might performe the office r 11. Elizab. 285. Dy. And 39. H. 6. it was agreed by all the Iustices that if a man haue an office and maketh a deputie which misuseth the office the grauntee or inheritour of the office shall forfait it for the deputie is sub officiario and the officer remaineth officer vntill the forfaiture Å¿ 39. H. 6. 32. And these wordes that the deputie is sub officiario are so in my conceit to be vnderstood as the lessee at will is vnder the lessor in case of a demise of land But there may be a forfaiture in the one case and not in the other because in the office deputed there is a speciall authoritie mixt with a speciall interest And Quaere whether for the dette of the deputie the office may not be extended whilest it is in the deputies handes Codign Surelie it seemeth that the deputie 4. That by the ciuil Law contrarie to the common Law there is no maner of interest in a deputie hath no interest at all in the office and that may appeare by the obseruation of auncient times For if a man may compare greater things with lesse the Quaestor of a Prouince was a deputie to the President or Gouernour of a prouince in his absence but yet their power was diuerse and the interest was not assigned but resembled as Caesar doth rightlie distinguish them Aliae sunt legati partes aliae imperatoris alter omnia agere ad praescriptum alter libere ad summam rerum consulere debet t Caes lib. 3. de bello ciuil The office of a Deputie or Lieutenant and the office of a Gouernour or Commaundour are diuerse the one of them that is the deputie doth all thinges by the prescript of his commaundour the other freelie prouideth for the maine and principall consequence of thinges And briefely and substancially he thus describeth the duetie of a Deputie Officium legati fiduciariam operam obtinere u Caes lib. 2. de bel ciui And that a deputie is but as a minister to the principall officer may appeare by Ciceroes precept to his brother Sit annulus tuus non vt vas aliquod sed tanquam ipse tu non minister alienae voluntatis sed testis tuae a Cicer. ad Q. fratr Let not
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
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
shall hold iurisdiction by the common law plaintife it was held by the better opinion that in this case wherein the close supposed in the writte is admitted by both parties to bee a churcyard the spirituall Court onely should hold iurisdiction a 13. R. 2. iurisdict 19. And an assise likewise was brought of a house against a Parson who pleaded in bar that he was Parson of P. and that the house demanded was parcel of his said church from time out of mind and that there was sepulture of deade persons there wherefore Perseis opinion was that the court temporall ought not to holde plea in this case b 44. Ass pl. 8. but if 3 The right of gleabe land is triable by the common law the Parson of A. and the Parson of B. do contend in suite for a parcell of lande the one claiming it to bee his gleabe the other his it hath beene held in this case that the spirituall court shall not hold iurisdiction c 19. H. 6. 20. And Bracton likewise affirmeth that a thing giuen in frankalmoigne remaineth laye fee d Bract. li. 5. c. 16. and by 4 Lands deuised not subiect to the iurisdiction of the ecclesiasticall court our lawe a prohibition lyeth for chaunteries chappels prebendes and vicarages e Fitzh N. B. 40. G. 35. b. and if a man deuise lands or tenements deuisable the partie to whome the deuise is made shall not sue in court spirituall and if he doe the other shall haue a prohibition and therefore as Bracton saith the deuisee may enter without the 5 Suites for chattels reall must be in the spiritual court licence of the executor f Bracton vbi supr Perk. tit deuis but if a deuise bee made of goods and chattels reall as of a lease for tearme of yeares or of a warde there the suite must be in the spirituall court g Fitzh N. B. 43. G. and if a termor of certaine land doe deuise his croppe and dye the spirituall court shall hold plea for this croppe h 8. H. 3. prohibit 19. and if a man deuise corne or other goods to a man and a straunger will not suffer the executor to performe the testament in this point they may sue the stranger hereupon in the spirituall court but if a man take goods deuised out of the possession of the executors the law is otherwise for then they shal haue an action of trespasse at the common lawe i 4. H. 3. prohibit 28. but if a man sue another in the spirituall court for a rent reserued vpon a lease of tithes or offerings a prohibition wil lie in such case because it is a laye rent k 44. E. 3. 32 Nomomath Let me now know Canonol whē 12. Diuision a man graunteth to one ius patronatus of the church of Dale if this title bee controuersed in question whether shall the ecclesiasticall court or temporall hold iurisdiction Canonolog Surely I thinke it is determinable 1 That ius patronatus by the Canon law is determinable in the ecclesiasticall court and that it passeth by the word ecclesia in the ecclesiastical court because the right of patronage may passe by the word ecclesia as if a man said vnto me dono tibi ecclesiam S. Petri in Dale the aduowson of the church doeth passe l c. quod autem de iur patronat Anglonomop The word ecclesia is otherwise taken in our law for it is most commonly vsed for a place wherein baptisme and the sepulture of mens bodies is celebrated m 34. E. 1. quar impedit 187. And M. Fitzherbert saith that by this word ecclesia is meant onely a parsonage n Fitzh N. B. 32. G. and therefore if a presentment bemade to a chappell as to a church by the name of this word ecclesia this doth change and metamorphize the nature of it and maketh 2 The diuers significations of the word ecclesia at the common law it presently a Church o 17. E. 3. 58. 47. E. 3. 5. 21 13. H. 4. Briefe 870. and because by this word church is meant a church parochial therfore if a man haue an oratory or chappel within his mannor of Dale and he giueth part of the demesnes of the said mannor to a Chapleine for life to sing there yet hee hath not by this made it a Church but it remaineth still an oratorie and his freehold for here was no effectuall operation of lawe to force such a chaunge p 36. E. 3. 13. But if a writte bee brought of a Church in Dale and in Dale there bee both a Church and a Chappell yet the writte shall stand good for the reason aboue shewed q 20. E. 3. Brief 684. 13. H. 6. 4. 9. E. 3. 451. 22. E. 3. 2. 8. H. 6. 33. and sometime it signifieth the Church which consisteth of stones walles and roofe r 8. H. 5. 4. Rolf. and sometimes the demesnes and profits of the benefice ſ 45. E. 3. 4. but verie seldome if at any time it is vsed for ius patronatus But if as you say the patronage shold passe by these words dono ecclesiam in all reasonable vnderstanding the patronage is to be distinguished frō the Church or benefice And therefore Pollard 12. H. 8. t 12. H. 8. 7. Prior. de Hunting c. doth well 3 The interest of the patron parson and ordinarie in the church is shewed distinguish the interest of the parson patron ordinarie as in a seuerall thing the parson saith hee hath a spirituall possession in the church the ordinarie hath charge of the church to see the cure serued the patron ius presentandi to the church which being well weied doth clearely bewray the imbecilitie in consequence of your proposed argument Canonol neither can you by any solide reason of law entitle the spirituall court to iurisdiction in this case as I shall hereafter shewe Nomomath What say you of this matter Codign Codign Wee rely wholy for these matters vpon the Canon law which in these pointes is verie pregnant and copious Canonolog It is so in deed but by that lawe ius patronatus is meerely spirituall and not temporall as Anglonomoph would perswade for it is wholly after a spirituall manner carried ordered for though the patronage do arise of three things the foundation the edifying and 4 What things do make a patron by the Canon lawe the endowment u 26. q. 7. filijs ca. quicunque 18. q. 2. Abbat according to the ancient saying patronum faciunt dos aedificatio fundus yet it is no temporall thing because though a man bee condemned and his goods bee confiscated yet hee shall not lose his right of presenting x Gl. est in ver subiect § rursus in fi c. pastor al. in Cle. de re iudi neyther is this repugnant that to a Church parochiall hee may present to a Church
collegiate the lawe is that though his assent goe not to the election of the partie who is to be the gouernor yet our law commandeth that after the election it should bee registred a c. nobis de iur patronat Yet it seemeth to be spirituall because if a laye patron doe present one and after will varie and present another nowe it is left to the arbiterment of the Ordinarie which of them hee will admit b 2. dist c. ecclesiastic et c. quod autem de iur patronat and hee which is so refused by the Bishop hath no remedie against the second presentee but he may haue remedie against the Bishop for his vniust refusall or wrongfull delay and his remedie in this case is a duplex querela against an inferior Ordinarie and this must be handled in the spirituall court c Pastoralis co tit Anglonomoph Yea but the reason of that is giuen in our lawe because the right of patronage shall not come in debate d Regist 55. Canonol This is petere principium but let me proceed There is such a mutuall correspondence betwixt the patron the Church that they may not bee seuered either in gouernment or in iurisdiction for though the patron hath aliquid honoris as we said because he is to haue the first place in the procession e 16. q. 7. piae mentis yet hee hath also aliquid oneris for he is bound by our lawe to defend the Church from all oppressions f 17. q. 7. filiis and in that regard if he fall into pouertie he is to be mainteined de bonis ecclesiae g Praealleg c. filijs Anglonomoph These circumstances do not inferre the conclusion which you labour for It shall appeare to you Canonologus by our law and by verie strong reason that the right of patronage 5 Ius patronatus is one of the proper obiects of the common law or the aduowson of the Church is one of the proper obiects of the common law First it is a rule with vs that if a man be sued in the spirituall court for a laye fee a prohibition will lye that is for lands and tenementes as M. Fitzh well expoundeth it h Fitzh N. B. 40. I. Now that an aduowson is a tenement lyeth in tenure may 6 That an aduowson lyeth in tenure by seuerall authorities be auouched and therfore a tenure ought as well to bee found by office of an aduowosn as of a mannor i 14. H. 7. 28. â— Bri. 17. E. 3. 10. and a lease for yeares may be made of an aduowson and if the lessee alien in fee this is a disseisin to the lessor k 7. E. 3. 11. and 15. H. 7. all the Iustices agree that an aduowson lyeth in tenure l 15. H. 7 8. And for that cause if one hold and aduowson of the king and graunt it to another without licence the grauntee shall pay a fine m 21. E. 3. 31. 20. E. 3. Estoppel 187. And generally vpon any surmise that a man is sued in the spirituall court for a temporall thing a prohibition will lie n Fitzh 43. h. Now the aduowson is temporall though the admission institutioÌ„ be spiritual Nomomath Let me aske you further this question 13. Diuision if a man sweare to me that he will make me a feofement of certaine land before such a day and he doth it not whether may I sue him in the spirituall court pro laesione fidei Anglonomoph No for if you do a prohibition 1 Punishment pro laesione fidei concerning a temporall acte is not to be adiudged in the ecclesiasticall court will lie by our law because the acte which is to be done is a temporal acte is to be tried by the commoÌ„ law o 38. H. 6. 29. Fitzh 43. D. 2. H. 4. 15. 24. E. 1 Br. praemuni 16. D. S. lib. 2. c. 24. and if men be sworne to giue true euidence to a iurie and they doe so whereupon certain persons be endited of some misdemeanor if they which be endited do sue them that gaue euidence against them in the spirituall Court for this diffamation doone with an oath they may make a prohibition p Fitzh N. B. 42. F. 11. H. 4. 88. prohib 12. but if any periurie be committed in a spirituall 2 Periurie in an ecclesiasticall court punishable in an ecclesiasticall court court there the spirituall court shall haue iurisdiction q Stat. de circumspect agat 13. E. 1. 5. Elizab c. 23. c. 9. but the Ordinarie in temporall cases maye punishe the partie which hath committed periurie ex officio though not at the suite of the partie r 20. E. 4. 10. and if a woman haue title to sue a Cui in vita and she maketh oath to the tenant of the land that she will not sue any cui in vita against him if after she sue a Cui in vita and thereupon the tenant sueth her in the spirituall court pro laesione fidei shee may haue a prohibition because the oath toucheth a temporall thing namely land Å¿ Fitzh N. B. 42. â— 4. H. 3. prohibit 19. Bracton lib. 5. c. 2. And if a man sweare to one that hee will pay to him twentie pound which he oweth him at a certaine day and at the day hee fayleth of the paiment hee may not now be sued in the spirituall court for the periurie because an action of debt lyeth at the commoÌ„ law for the principal t 22. E. 4. 11. H. 4. 88. prohib 12. But 34. H. 6 it is saide that if a man buy an horse for fiue pounde soluend such a day and sweareth to make paiment at the day but when the day is come fayleth of payment an action of debt lyeth at the common lawe and an other at the spirituall lawe pro laesione fidei and a writ of prohibition lyeth not because they be two distinct thinges u 34. H. 6. 30 Br. prohib 2. yet 2. H. 4. is that a prohibition lyeth in such case x 2. H. 4. 10. Canonolog But Lindwood sheweth that a libell may be so framed that no Prohibition will lie in your last recited case as namelie the libell may be That the partie hath damnablie broken his oath pretending that he was not bound by it a Lindw in capit aeter sanctio verb. periur Anglonomoph That is but a weake support 3. Linwoods authoritie touching punishment pro lâ—sione fidei in temporall matters at the ecclesiasticall Law is not admitted of the spirituall iurisdiction for it is one thing to be punished for periurie an other for his irreligious pretence And surelie I take it to be agreeable to all Lawes that pretenses and intents are not punishable but onelie in crimine laesae Maiestatis And a man may sue a Prohibition directed to the Shirife that he shall not permit nor suffer the Queenes lay
with the Ciuill Law in the three sorts of bonds two I haue shewed that our Law agreeth with yours and as to the last it agreeth in the substance of the thing though not in the sound of the name For an action of Dette may by our Law be brought vpon a recouerie or iudgement conteining the dette For if a man recouer dammages in a writ of Wast he may sue a writ of Dette vpon this recouerie if he will l Fitzh Nat. be 122. C. 20. H. 7. 3. And so for dammages recouered in a Redissesin a writ of Aiel Cosinage and a writ of Entre sur disseisin m 43. E. 3. 2. But in that you said that 15. The common Law dissenteth from the Ciuill in not making the redeliuerie of a bond an acquitance the redeliuerie of a writing Obligatorie vnto the obligee is in steede of an acquitance this is not so in our Law For though it be notably well obiected by Fineux 1. H. 7. that there be as manie waies for him to whom a deede is made to dissolue the deede as for him who maketh a deede to make it a deede as where as it is ensealed he may break the seale and whereas it is deliuered as the bond of the partie he may redeliuer it in steede of an acquitance m 1. H. 7. Dones C. per Fin. Yet it is better aunswered by Mast. Keble that a redeliuerie may be either of a deede executorie or a deede executed The redeliuerie of a deede executorie hath some operation in Law n ibi per Keble as if a man deliuer a writing obligatorie as a scroule to I. S. to deliuer as his deede to I. N. vpon a certaine condition perfourmed if I. S. deliuer the scroule back to the bailor before the deliuerie of it to I. N. and before the condition perfourmed the bailor shall not anie way be charged by vertue of this bond But if it had been deliuered at the first as his deede to I. N. vpon a condition perfourmed o Perkins tit Faits Now the redeliuerie of it nequè ligat nequè soluit worketh nothing because a deede can haue but one deliuerie and if the first deliuerie be good the second is voide if the first be not good the second may be good p 1. H. 6. 4. And so it is of a release executed for if a man be disseised and after release to the disseisor and after the disseisor redeliuereth the deede of release to the disseisee and saith that he will not haue aduantage of it yet this is to no purpose for by the release executed no right may bee demaunded by him to whom the deede is redeliuered but a right may be defended by him who is in possession to whom the first deliuerie was q 1. H. 7. Dones c. per Vauisor Keble But if the disseisee reenter vpon the disseisor and the disseisor bringeth an Assise and hath not the deed of release readie to intitle himselfe to the land the other may still hold possession of the land but then the redeliuerie of the deede of release doth him no good directlie but onelie per accidens because the want of it doth hurt to the disseisor Nomomath Now I pray you resolue vpon 2. Diuision this whether shall the Executor or Administrator be charged in all respects with the dettes and Legacies of the testator or how farre forth they shall be charged For I accompt a Legacie to be a kind of dette Codicgn The making of an Executor which 1. By the Ciuil Law the Executor succeedeth in vniuersum ius desuncti of vs is tearmed haeredis institutio is to appoint one to be an vniuersall successor in the right of all his goodes after his death by his Testament or last will r C. de haere l. 1. which is not of force till the death of the testator but vntill that time it is kept clausum signatum and as Isiodore saith rather according to the truth of the thing then according to the true deriuation of the word as manie times he doth it is therefore called Testamentum quia non valet nisi post testatoris monumentum vntil the testator be laied in his graue ſ Isiodor li. 5. And such Testaments must be insinuated to 2. Insinuation of a wil necessarie by the ciuill Law the Officiall or Commissarie of the Bishop of the Dioces within foure monethes after the death of the testator which insinuation is appointed by Law Ad euitandum falsitatem et sciendum veritatem Testamenti t L. iubemus C. de test l. si C. de fideicom But de iure Praetorio though a Testament be not made yet some person may be appointed by the Praetor to administer the goodes u Iusti de bo poss §. 1. et ff eo tit And as well the administrator 3. By the Ciuill Law the executour or administrator ought to make an Inuentorie of the goodes of the partie deceased as the executor ought to make an Inuentorie or sufficient Catalogue of all the goodes of the partie in whose right they succeede which shall come to their handes And it is a good and safe waie for them so to doe for if they doe so they shall not be charged further with anie debtes then the goodes of the testator or him that died intestate will extend And such an Inuentorie by our Law cannot be disprooued vnlesse the number of the witnesses that disprooue the Inuentorie be twice as manie in number as they which doe prooue it which are commonly called Prizors uu cum Io. de si instru And the Inuentorie ought to be begun by the Executor within 30. daies after the death of the testator or at least within 30. daies after that he hath notice that he is made Executor and it ought to be finished or consummated within thirtie daies after or at least within a yeare after if the thinges be farre distant and dispersed in remote places and then he shall be charged no further then the goodes will stretch otherwise he shall be charged in solidum for the whole dette d Gazal in verb. Inuentar Canonolog These thinges which you haue proposed are not reiected of vs but are of validitie in our Law Nomomath I pray you Anglonomoph rip vp the particulars of Codicgnostes his late discourse as distinctlie as you can for these things vttered by him are of great importance and vse at this day wherefore I would haue you studiouslie and with care to discusse these things Anglonomoph In the substance of these matters 4. The power of the Executor dependeth wholie vpon the will of the Testator by the common Law which he hath mencioned I doe not see at the first glimse any discordance in our Law but in the circumstance there will be some dissonancie and variance First to speake of the power of an Executor by our Law it dependeth wholie
thy ring be as a vessell to be vsed at any mans pleasure but as thy selfe not as a seruant to an other mans will but as a witnesse of thine owne Nomomath What if the Master doe promise â— Diuision vnto his Bailie or Attourney that if he can procure him the possession of the land in question he shall haue the halfe or some part of it for his rewarde Will your Lawes allow of such an assumpsit Codicgn Our Law doth not allow it But 1. That the bailie or attourney may not take halfe the land for purchasing or compassing the other half he may safelie take a speciall collaterall reward for that particular effect b Gazalup in ver procurat Canonolog So in our Law he that giueth part of the profites of a benefice to be admitted to the benefice is so far from being allowed 2. That the like matter is forbidden by the Canon Law that his fault is accompted to be enorme and indispensabile c 13. disti nerui For it is held to be simonie corrupt cheuisance if any valuable consideration be giuen in such regard pacto vel facto And he that buyeth so is called Simoniacus of Simon Magus and he that selleth so is called Gieziticus of Giezi d 1. q. 1. Studet Anglonomoph In our Law it is held that 3. The common Law agreeth with them there is no diuersitie where a man selleth land depending a writ petitorie of the same land or doe giue it depending the writ for in both cases there is Champertie e 8. E. 4. â—9 Nomomath I praie you let me know whether 7. Diuision anie persons be accomptable by the meere and sole operation and enforcement of Law Codicgn Yes there be two sortes of accomptes publike and priuate The publike 1. Two sortes of accomptants by the ciuill Law accomptes are such as are to be made by a publique officer who is charged with some speciall administration appertaining to the common weale ee L. officialis c. de epis et cler For the Presidents of Prouinces amongest the Romanes did customablie vse to make vp their accompts before they departed out of the Prouince to which accompt they were obliged by Law Therefore Cicero saith Illud certe factum est quod Lex iubebat vt apud duas ciuitates Laodicensem et Apamensem quoniam ita necesse erat rationes confectas et consolidatas deponeremus f Cicer. ad Rufum Priuate accomptes are such as belong to priuate men by the administration of their goodes or affaires as the proxies or bailifes of priuate men Canonolog The same difference doe we 2. Likewise by the common Law hold in matters of accompt g d. l. officialis ibid. Anglonomoph And by our Law there be 3. And also by the common Law some which be accomptable by Law some by a particular charge imposed vpon them or vndertaken of them And in the former case a writ of Accompt will lie though there be no priuitie infacto but onlie in Law Wherefore Mast Prisot said 33. H. 6. that the king might bring a writ of Accompt against one as his bailie who did occupie the land de son tort demesne of his owne wrong And the same Law is as he there affirmeth if a man occupie the manour of a common person de son tort demesne And according to Wangf opinion if a man seise an Infant as wardein in Socage and is not the prochein amy yet a writ of Accompt lieth against him but there he claimeth to the vse of the Infant h 33. H. 6. 2. per Prisot et Wangf And the same Law seemeth it to be to Mast. Brooke i Brook Accompt 8. where a man presumptuouslie and of his owne head vndertaketh to be my bailie a writ of Accompt will lie in such case But if he enter to his owne vse there it seemeth saith he that a writ of Accompt will not lie for there Ne vnques son Receiuor pur accompt render is a good plea. And 49. E. 3. a writ of Accompt was brought against the Lord by the tenant as occupier of the land which the tenant now plaintife holdeth of the defendant in Socage and the def said that the auncestor of the plaintife did hold the land of him by knights seruice wherfore he seised the land in warde k 49. E. 3. 10. By which case it appeareth that a writ of Accompt is admitted to lie against the occupier of the land without any priuitie in facto And 4. H. 7. it is held by Brian that if a man receiue my rent of my tenants without my assent yet I shall charge him for the possession and receit of the rent l 4. H. 7. 6. But a writ of Accompt will not lie against a disseisor because that cannot be without priuitie in Law or in facto as by assignement or as Warden or in like sort or by the pretence of the defendant of occupying to the vse of the plaintife m 2. Mar. Br. Accompt 89. Nomomath I will not presse you any further with mouing doubtes of Accompts but will now make transition to other matters that remaine to be discussed The fifth Dialogue Of Wast done in a mans Ground NOmomath The next matter that by order offereth it selfe to your conference is to treat of Wast done in a mans land And for my more perfit apprehension of the thinges concerning that point I will prescribe vnto you certaine particulars wherein you may imploy your trauell for my further instruction First of what things Wast may be committed 2. What thing properly your Lawes censure and determine to be wast 3. What punishment by your lawes is to be inflicted vpon these that commit wast You shall doe me great pleasure in vnfolding the secrecie of your knowledge hereof And first to begin 1. Diuision with the first let me know of what things wast may be committed Codicgnost Wast may be committed in suffering 1. Of what things wast may be committed by the ciuill Law the walles of houses or closes to fall a Gazalup verb. rudera So if there be a wood which is thick with great tymber trees which in Latin is called Saltus or which is but thinly set with slender trees wherin hunters may ride vp and downe which the Latinists do call Nemus spoile or hauock made in such woods may be accompted wast b C. de â—un pa. et Salluen li. 11. But 2. Cutting of wood in silua caedua by the ciuill Law is â—o wast to cut wood in silua caedua which is apt to be cut is no wast and therfore it is said apt to be cut because it groweth easilie again Neither doth wast seeme to be committed in silua pascua if brush-wood small wood or vnderwood be cut for the better pasturage of the beasts that go vpon the soyle Likewise wast may be
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
vnto you vpon the aforesaid condition I shall now owe vnto you absolutelie and without condition whether in this case is the agreement of any force to defeat the condition Codicgn By our Law it is of force to ouerthrow 1. An agreement by word may defeat a condition in writing at the ciuill Law the condition for it is a renewing of the bond as we tearme it and so the later bond shall preiudice and swallow vp the former k ff de nous et C. eo ti Anglonomoph Our Law holdeth the contrarie 2. The common Law is quite contrarie to the aforesaid assertion of the Ciuill Law and the reason is this because it is an inconuenience in reason that an especialtie sealed and solempnlie deliuered should be auoyded by the bare agreement of the parties which is but a meere matter in facto l 1. H. 7. 14. Dones case per Dauers Yet in some cases it is not inconuenient that an obligation should be auoided by a matter in fasto where there is a strong and peremptorie operation in Law As if a man be bound to a feme sole and afterward he marieth her Or if a man be bound to a villaine and after he purchaseth the manour to which the villeine is regardant the mariage the purchase may be pleaded in auoidance of the especialtie So in an auoydance of a statute merchant it is a good plea to saie that part of the land is purchased by the reconusee So in a writ of Annuitie it is a good plea to saie that he hath paied it in a foreine countie So if a man by deede graunt a rent if the grauntee surrender the rent with the especialtie this is a good auoydance of the especialtie m 1. H. 7. Dones case per Keble But where a man was bound to paie xx nobles at a certaine day and if he failed that then he would loose x. li. paiable at the same day an action of Dette was brought for the x. pound and it was allowed n 26. E. 3. 71. for here there were two seuerall bandes one of them consequent vppon the other but not abolishing the other And if a defeasance vpon a statute marchant be that the payment of the money should be made at Bristowe and the conusee receiued it at an other place this is a good discharge of the statute for now the Law hath discharged it o 46. E. 3. 4. But one matter of recorde may be auoided by an other Therefore the case was 20. E. 3. in a writ of Accompt the defendant said that the plaintife by a deede which he shewed forth did graunt that if the defendant did make a reconusance vpon statute marchant such a daie at Canterburie to the plaintife that the writ of accompt should be held as voide This was admitted by the Court to be a good agreement to auoide the writ of annuitie as soone as the statute is deliuered to the plaintife p 20. E. 3. Accompt 79. Nomomath I would know Codicgn what your Law doth determine of impossible conditions whether it doth vtterlie reiect them or what force and effect it assigneth vnto them Codicgn Impossibilitie our Law maketh 1. Three sortes of impossibilities at the Ciuill Law three-fold iuris facti et naturae Iuris as when there is a repugnancie in the condition so that the Law doth wholie frustrate and disanull the condition or els it is directlie contrarie to the Law As if a man should contract with a 2. What impossibilitas iuru is at the Ciuill Law woman si prolem euitauerit or si adulteram se praestiterit the one of these being against the Law of nature the other against the Law of God both of them are by our Law made voide q C. fi de condi appo And indeed there is a repugnancie betwixt the contract and the condition mariage being a thing instituted and ordeined for the procreation of children and the auoyding of fornication Impossibilitas facti is when 3. What impossibilitas facti is at the Ciuill Law there is great difficultie in the thing that is to be done and it is not possible to bee easilie done howbeit it is not absolutelie impossible to be done this impossibilitie of the condition doth frustrate the act precedent As if I say that Stichus my villeine shall be free if he will giue a thousand pound for his freedome this though it be not impossible yet it is verie difficult for a villein to performe because of the difficultie the Law will imagine that I did but trifle by this forme of enfranchisement and so Stichus shall gaine nothing by it r L. cum haere §. 1. ff de sta li. So it is if a man being at Yorke bee bound to paie to an other at London x. pound before sunne-set this though it be not impossible in it selfe because a Pegasus or poast-horse may help the matter yet because it can not with any facilitie be pefourmed within so short time our Law holdeth the condition to be voide ſ Insti de verb. obli §. loca Impossible by nature that is said to be which is 4. Impossibilitas naturae by the Ciuil Law repugnant to naturall reason and contrarie to the course of nature As if I giue a horse to one vppon condition that he shall touch heauen with one of his fingers or that he shall extinguish fire with oyle or that he shall build a village in the cloudes t Ioan. ad reg Nemo li. be reg iur Nomomath These differences haue been well opened by Codicgnostes Now I will request you Anglonomoph to explane and illustrate them by cases Anglonomoph I will particularlie speake of 5. Which be conditions against Law by the censure of the common Law them all And first of Conditions against Law If estates in land be made vppon conditions contrarie to Law the estates be good and the conditions voide But then the estates must not begin neither take effect by force of the condition neither depende vpon such conditions as to the existence of them But if a man seised of land doe enfeoffe a straunger vppon condition that if the feoffour doe kill I. S. one of the Queenes subiectes it shall be lawfull for him to reenter the estate is good and the condition voide u 4. H. 7. 4. 2. H. 4. 9. So it is if one enfeoffe an other vpon condition that if the feoffour doe burne the houses of I. S. it shall bee lawfull for him to reenter uu Perk. Condic 139. for such conditions are impossible to bee good by Law But if a lease for life be made or a lease for yeares of land vpon condition that if the lessee kill I. S. within such a day that then he shall haue and hold the land to him and to his heyres foreuer notwithstanding that the lessee do kill I. S. within the day yet his estate
not meant that in regard of fiue pounde receiued of Titius I doe make him my heire or executor but the words are conditionally meant if the testator doe receiue 5. li. of Titius c h l. a testatore ff de condi demon So if I deuise to one xx li. pro docendo talem discipulum this pro doth signifie a condition because by common vsage prius docendus est discipulus quà m soluendū salarium magistro i l. nec semel ff qu. di le ce So if I doe contract with a woman in this sort I promise vnto you A. that you shal be my wife donec terra ponatur super oculos meos these words are not generally to bee vnderstood for so the partie may lay earth vpon his eyes and slip the collar and breake promise but they must be vnderstood according to common intendement that she shall be his wife vntill his carkasse bee couered with earth that is vntill he be buried so it is if he should haue said Donec oculi os mihi claudantur k c. ex literis 1. de spon Angl. Our law many times taketh the words 2 The commō law taketh conditions many times strictly of a condition strictly to preserue an estate A lease was made to one vpon conditiō that the lessee shal not alien to A. the lessee alieneth to B. who alieneth to A. the cōditiō is not brokē for a condition which goeth to defeat an estate must be taken strictly l 31. H. 8. 45. Dy. And 28. H. 8. the case was thus A lease for yeares was made by indenture the lessee did couenant and grant that if he his executors or assignes did alien that it shold be lawful to the lessor to reenter after he made his wife his executrix and dyed the woman tooke an other husband which aliened The first question was whether the wordes of the couenant abouesaid did make a cōdition And if it were a condition the 2. question was whether there were any breach of condition in the case Some held that there was no breach of condition because the husband was possessed of the tearme by acte of law is not an assignee no more then a tenant by the curtesie is or the land of a villaine But Browne and Shelley held that the husband was an assignee in law and that the land was subiect to the cōdition into whose hands soeuer it did come m 28. H. 8. 6. Dy. But lately in Ridgeleys case the condition was extēded by equity for the safegard of the party The case was thus A man was bound to another in a c. l. that he shold discharge the obligee saue him harmeles of all suits incumbrances against I. S. and after the said I. S. sued the obligee proceeded vnto iudgement wherefore the obligee brought an action of det vpon the obligation and the defendant pleaded non damnificatus est And Beamond Sergeant did maintayne the plea in his argument because that hee was not damnified in the eye of law vntill the goodes or the lande or the person of the plaintife were actually charged For before that time he was onely chargeable but not charged Sergeant Harris argued to the cōtrarie for he said that he was chargeable to the execution of the partie so not saued harmelesse two sorts of damages were held by Iustice Walmesley the one executorie the other executed executorie which a man may in future time sustayne Executed as if the land or the person shoulde bee in present execution And if the disseisee make a release to the disseisor and a straunger cancelleth the deede of release the disseisor may haue an action of trespasse against him and yet the disseisor doth continue possession and is not as yet actually damnified And Iustices saide that the land of the party was in some sort charged for none in such case would buy the land of the partie but onely vnder the value because of the iudgement executorie n 33. Eliz. Ridgeleys c. But wee haue a rule in our law that when a condition is to bee performed to a straunger it is to bee performed most strictly and if the condition bee performed at an other place this is not sufficient o 36. H. 6. 8. And 21. H. 6. it is said that if a man be bound that he or his feoffees of the mannor of W. shal graunt to the obligee 20. s. rent for tearme of life and he hath three feoffees two of the feoffees cannot graunt this rent p 21. H. 6. 19. But 7. E. 4. it was affirmed in the kings bench that if a man were bound to make one a sure sufficient and lawfull estate in certaine land by the aduise of I. S. if he make an estate according to the aduise of I. S. be it it sufficient or not or lawfull or not he is excused of his bond and a like matter was in the common place the same terme and they were of the same opinion q 7. E. 4. 13. Nomomath I wold gladly be satisfied in this when a man maketh one his heire or executor 7 Diuision and if hee refuse to performe any thing that is comprised in his will then he willeth that I. S. shall bee his heire or executor and shall performe his will and shal seise his goods and enter into his lands post haereditatē aditam though the heyre or executor haue intermedled with the will and haue performed some thinges according to the intent of it Now if the Testatour die and the heire or executor haue perfourmed some thinges of the will but refuseth to perfourme other some and hath seised the goodes and entered into the landes of the partie deceased Whether may I. S. enter vpon him for the condition broken and defeat his whole interest in the landes or goodes or shall he still reteine part of the landes and goodes because he hath perfourmed part of the will Codicgn I. S. or the substitute of the Testatour 1. There may be a substitution of one heire after an other or of one executor after an other at the Ciuill Law is now by the will and breach of the the condition become directly the heire or executor to the Testatour And all the authoritie or interest of the fomer heire or executor is vtterlie determined frustrated and defeated r Insti de vulga substi §. quo casu 2 The heire at the ciuill Law must succedere in vniuersum ius defuncti for the authoritie or interest of the heire or executor by our Law may not be apporcioned but he must succedere in vniuersum ius defuncti ſ ff de verb. signif l. nihil aliud est haereditas et l. bonor eo tit And there is an other substitution in our Law which we call a reciprocall substitution and it is thus The Testatour saith I doe make S. and T. my sonnes within age my heires and
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
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
the King onely did medle with the Mines of gold and siluer that were in it l Fitz. Na. br Corrod 232. And by the graunt omnium singularum Minerarum these Mines shall not passe m Com. Inf. pur Mines ib. And though the king graunt to one the retourne of all maner of writtes yet he shall not haue the retourne of the summons of the Eschequer because that toucheth the Crowne and is not betwixt partie and partie n 22. E. 3. lib. Assis pla 49. Neither by the Law of England can any man prescribe in such thinges For it is said 1. H. 7. that no fraunchise may prescribe to hold plea of Treason and whether the king may graunt any such libertie or no the Iustices were in great doubt o 1. H. 7. 23. But 46. E. 3. it was held by Kniuet Iustice that a man might claime a fraunchise of Infangtheefe and Outfangtheefe and waife and straye by prescription but he cannot haue the chattels of Fugitiues or Felons vnlesse it be by especiall graunt because that it belongeth vnto the King as to his Crowne and therefore can not passe from him but by speciall graunt p 46. E. 3. 16. and 21. H. 6. this diuersitie is taken such thinges as accrue to the king by matter of recorde as the fines issues and amerciamentes of courtes doe not lie in prescription but in such things as belong to the crowne the title of thē doth not grow by matter of record as waife stray wrecke of the sea treasure founde and the like a man may praescribe in q 21. H. 6. praescript 44. but as these are speciall prerogatiues which are graunted to a prince so they are graunted for speciall causes by which princes must bee directed not by their owne voluntary conceits or vnsatiable desires least it happen that magna imperia be magna latrocinia for good gouernours will not imitate the lewd monarches of nations as Caligula Nero Caracalla Carinus Romaine Emperours nor Seleucus nor Alexander the great or rather the proud which did claime a generall and absolute power indefinite illimitate ouer all mē ouer all things without difference or exception which did thinke that they might giue lawes to others and not to bee bound by any which pretended that there was but one law for all common weales and that was to obey euerie thing which the king commaunded and that that was iust in regard of the subiectes which was profitable to their ruler like to that prince of pirats and robbers in Heliodorus r Heliod lib. 1. Aethiop histor Si imperij lege vtendum fuisset prorsus mihi velle suffecisset Like to that saying of Iulius Caesar the vsurper Sylla literas nescijt qui dictaturam deposuit mecum homines consideratius loqui debent ac pro legibus habere quae dico ſ Sueton in Caesar like to that of Iulianus though spiced with some sprinkle of mildnesse Polliceor absque omni praerogatiua principum qui quod dixerint vel sensuerint pro potestate authoritatis iustum esse existimant t Ammian Marcell lib. 23. or like to that sinister clause of the Popes insolent vanitie de plenitudine potestatis the last of which wordes Baldus playing withall putteth in steade of it tempestatis u Alciat reg 3. praes 8. et ad L. 2. C. de in ius voc yet I will easilie graunt that if any prince doe by sword and conquest subdue any countrie as the whole countrey is gained and possessed by this exploit so all the landes and goods of euery inhabitant in that countrey are his vntill hee did giue them or restore them vnto the former owners As by the lawe of this realme of England if a man be attainted of felonie and the Queene pardoneth him all fellonies and executions and doth likewise pardon and release all forfeitures of lands and tenements and of goods and chattels this pardon and this release cannot serue but onely for the life of the partie if the office be found for then the land is the Queenes by matter of recorde and therefore there must bee expresse wordes of restitution and as to the goodes the Queene is entituled to them without office x 29. H. 8. Br. chart de pard 52. so if it be found by office that I. N. the Queenes tenant was seised of certayne landes and dyed seysed and that W. his heyre intruded and after by acte of parliament the Queene pardoneth all intrusions in this case the entrie and offence are pardoned and released but not the issues and profits for the Queene was before entitled by matter of recorde a 33. H. 8. Br. charters de par 71. intrusi 21. Issues ret 22. for when any thing commeth to princely possession which did before belong to any inferior person it cannot bee restored to him without actuall donation And Xenophon sayeth that it hath beene a perpetuall lawe amongest all men that all thinges taken by warre whether they bee money goods or men doe belong to them which tooke them b Xenoph. lib. 7. Cyropae and Thucydides affirmeth the same to bee a common lawe to all nations c Thucyd. l. 3 howbeit the Romanes rather by mercy then rigor of lawe were onely content with the tenth parte of the goods and did remitte the residue to the conquered persons d Appian lib. de bel ciuil 2. And it hath alwaies beene accompted the propertie of barbarous nations to haue no lawe written nor ratified by common consent neither touching these rights nor prerogatiues nor other matters but onely the voluntarie conceite of the monarch as Liuie hath iudiciously obserued e Liui. lib. 37. But Aristotle maketh one exception from the rule and that is of the Spartan Kings whome hee affirmeth to haue directed their actions by prescript of lawe and Diodorus f Ar. 3. polit Siculus saith that the Aegyptian kings did first beginne to rule by a setled and determinate lawe and that all other nations were gouerned by the chaungeable wil of their soueraigne g Diodor. Sicul lib. 2. and the Romanes did after refine themselues as appeareth by Plinie speaking to Traian Te legibus subiecisti legibus Caesar quas nemo principi scripsit And presently after he saith Quod ego nunc primum audio nunc primum dico non est princeps supra leges sed leges supra principem h Plin. in Panegyr But to open and declare further the soueraigne and ample authoritie of monarches ouer the lands and goodes of their subiects though it haue beene in auncient times held and affirmed by the ciuill law that such thinges as are parcell of the law of nations could not be taken away by the prince from his subiectes and therefore they might not be depriued of their demesnes or inheritance of lands or of the property of their goods and chattels which they enioy by the law of nations i
§ 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
betwixt the laps and the kinges presentment q Ibid. fol. 21. It is answered by some that the ordinarie may present one who shall be remouable at the kings will and some thinke that he shal sequester the profites of the benefice to serue the cure but in some case the King may not surcease his time as if the tenant for terme of life do forfeit his estate to the king if he be not seised during his life hee may not afterward seise it qq 8. H. 5. Trauers 47. but in this case the reason is because hee can haue no other estate then he which forfeiteth and he which commeth in of the estate of an other can haue no greater right then he had for if a man haue land in the right of his wife or in the right of a Church hee can not haue it otherwise then the Church or the wife hath it r 18. E. 3. 20. so if there be Lord and tenant and the tenant alieneth in mortmaine and the Lorde entreth yet hee shall haue onely such right in the land as he hath in the seigniorie notwithstanding that the statute do say Quod proximus dominus intrabit retinebit in feodo ſ 39. E. 3. 38. 50. E. 3. 21. l. 5. E. 4. 61. For this is grounded vpon naturall reason and naturalia sunt immutabilia and the princely prescription must bee maintained bona fide Wherefore the Duke of Sauoy which had the Cittie of Nice in pledge of the French King did vniustly withhold that Cittie frō the king being the lawful owner then because hee had inueterate possession in the same for by the ciuil law a man may not prescribe in a pledge t l. 9. C. de pl. act Deci. 3. consi 108. and Iouius is likewise angrie against the king of Fraunce himselfe for keeping Perpinianum in the like sort Parum sincera fide saith he veteris pacti conditionem multis cauillationibus inuoluebat u Iou. lib. 1. for it is true that Cephalus saith in quaestione valde dubitabili non est praescriptio x Ceph cons 102. But surely bonafides is requisite in such matters of prescription except it be apparāt that the will of God is for the prescription Wherefore Bellarmin confesseth that the Turke doth lawfully possesse such thinges as hee hath taken from vs because God his will is that for our sins we should be cast out of the land wherein we and our ancestors inhabited a Bellar. 5. contr But he doth not possesse them bonafide because hee can not by any speciall meane conuey them particularly to himselfe for as Doctor Gentilis hath well obserued An Turcae opinio latrocinantis cogitat de iusta voluntate Dei b Alb. Gentil lib. de iu. bel 1. 22. Aratus the Sicyonian was so strong and peremptorie for the title of prescription that hee did not thinke it conuenient to remoue or take away from the vsurpers any thing that they haue violently taken from the owner if they haue had possession during the space of fiftie yeares onely c Cicer. 2. de offic Prescription hath alwayes beene of force to hinder these that had right to pursue their clayme Wherefore Demosthenes sayth well Hee that hath helde an other mans landes or goodes a long time should not please himself therewith but impute it to fortune which hath hindred the lawfull owners d Demosth ad maca Is any thing more to bee laughed at then that which is said of some interpreters of the law who are not to bee laughed at that the kingdome of Spaine may now be claimed by the Romane Emperour by reason of his ancient imperiall right whereas it is manifest that sithence the time of the ancient Romane Emperours it hath beene a long time possest of the Saracens a long time of the Spaniards The fifth Chapter That by the consent of all nations consent principally maketh a lawfull mariage IF a man should examine the seueral rites circumstances and ceremonies of the diuers people of the worlde in the knitting and celebrating of mariage he might as well number and obserue the diuerse-couloured spottes of the Chamaeleon for euery nation hath had in this by some fatall lotte both their custome and chaunge of custome I will onely endeuor to proue that which is conteined in my assertion that by the consent of all nations c. The definition of thinges is alway the best proofe therefore it is good to beginne this discourse with the definition of mariage Mariage is the lawfull coniunction of man and woman conteining an indiuiduall societie of life and the participation of diuine and humane right a 30. q. c. nullam where it is said a lawfull coniunction nothing els is meant but a free consent executed by the contract which as it is the beginning of the definition so it is the ground of the mariage and these wordes conteining an indiuiduall societie of life do signifie that they shall continue foreuer together as long as they liue Howbeit the rule of the common Law do in this sauour of the irregular Religion Post contractum matrimonij ante carnalem copulam possit alter altero inuito religionem intrare b Gazalup in verb. nuptiae And for the further proofe that the ground of mariage is consent there be three thinges by the Canon Law required to mariage c Codi ap C. vlti c. 27. q. 2. Fides Proles and Sacramentum Fidelitie which is put in the first place is the hart of mariage and it springeth of consent and therefore if a man do contract with a woman in this sort Contraho tecum si te pro quaestu adulter andum exposueris this is no contract of mariage because it is contra bonum fidei which consisteth in this that neither of the maried couple shall break the bond of mariage but shall faithfully and vnitedly obserue it Likewise Progenie is an other thing that mariage requireth and therefore it can not be a good contract of mariage if it be made in this forme Contraho tecum si generationem prolis euites or si venenum sterilitatis accipias because mariage was instituted of God for the solace of man and the multiplication of mankind by children Thirdly a solemne promise is requisite in mariage and therefore if a man do contract with a woman donec ditiorem vel pulchriorem habeat faeminam this is no good league of mariage because it is contrarie to the oath of an indiuiduall societie And so if any man in a foreine land sucking as yet the smoak of the Popes Tobaccho be a votarie to Religion and a bondslaue to his cloyster for England the Lord be praised is at this day as free from Monkes as it is from wolues Three things are required at his handes namely chastitie obedience and the abdication of propertie as well in landes as in goodes d Gazalup in verb. matrimon But that