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
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
lawfulnes and necessarie vse may appeare which hath not seldome by diuers obiections and quarrellous surmises been shaken and some haue engaged themselues so deepelie into this controuersie that they haue suffered great affliction therefore if not losse of life 2. The councell of Constance is said to haue condemned VViclif for holding Tythes to be pure almes Canonologus It is true And amongest the 189. Articles of Wiclif condemned by the Councell of Constance that was noted especiallie to be erronious that he held Tythes to be nothing else but pure and frank almes and that the Parishioners might withhold them from their Pastors if they were wicked men And for that especiallie he is said to haue been burnt aa Rebuff in tractat de Deci. 5. qu. for that which belongeth to God may not at mans pleasure be derogated detracted or diminished Nomoma Yea but how doe you proue 2. Diuision that they belong to God Canonol I can easilie prooue that by their 1. The originall of Tythes is demonstrated to be by the Law of God originall and lawfull institution of them which was thus God hath set downe this rule in Exodus Decimas primitias tuas non tardabis offerre a Exod. c. 22. And in Leuiticus more particularlie he hath appointed the payment of Tythe Omnes decimae terrae siue de pomis arborum siue de frugibus domini sunt illi sanctificantur b Leuit. c. vlt. Neither is that dissonant which is written in the Prouerbes of Salomon Honora dominum de tua substantia et de primitijs frugum tuarum da pauperibus c Prouerb 3. Tythes certainlie 2. God his deputies for the receit of Tithes are set downe are God his tributes and as the Canon saith are giuen him in signum specialis dominij d c. cum non sit eod And it is likewise set down who should be God his deputies for the receit of such Tythes Filijs Leui dedi omnes decimas pro ministerio quo seruiunt mihi in tabernaculo foederis e Numb c. vlti The reason is set downe by Ezechias Vt possent vacare legi Dei f 2. Paralipo c. 13. And by the apostle Paul Qui altari seruit de altari viuere debet g 1. Corinth 9. And of paying Tythes the verie Heathen 3. The Heathens which knew not God had great regarde of paying Tithes which knew not God had great regarde as may appeare by Plinies report where he saith That Frankensence being gathered was conueyed on Camels backes to Sabola there being but one way to carie it and to go out of that waie was capitall and at the gate which was at the end of the way the Priestes did receyue Tythes of the things that were caried for their God called Sabis which Tythe or Tenth part they tooke by measure not by weight And before such payment of Tythe there was not permitted any merchandize of them h Plini lib. 12. c. 14. And the Romanes did paie such a Tithe vnto Hercules And they accompted Lucullus 4. Lucullus is specially commended for paying Tithe who was verie skilfull of their Lawes and customes to haue been greatlie increased in his wealth and stocke especiallie for this because in the due performance of his Tithe he was alwaies diligent and exquisite i Alex. lib. genia 3. c. 22. And when Veios being taken gold should haue been sent to Apollo of Delphos in the name of the Tenth of the pray which Camillus had vowed vnto 5. Camillus is likewise commended for his diligēce in procuring Tenth to be paid him and in the treasurie there was no great store of gold for that defrayment the Romane nations brought into the treasurie as much golde of their iewels and ornaments as did serue for that purpose rather hauing regarde of publike duetie then priuate profite k Liui. lib. 5. And Plinie likewise testifieth that the Romanes 6. The Romanes carefull in paying first fruites did not taste nor make anie vse of their new corne or wine vntill they had giuen their first fruits vnto the Priestes l Plini lib. 18. c. 2. And Pharao in the time of the great famine of Aegypt did allow to the Priestes a certaine liuelode of corne out of the barnes m Genes 47. which is not discrepant from the ordinance of God as it is set downe in the prophecie of Malachie Inferte omnem decimam in horreum meum vt sit cibus in domo mea probate me super hoc n Malach. 3. Certaine it is that they which dutifully and plentifully pay their Tythes without fraude and miserable pinching or malicious quarrelling with their Pastor or Curate do more florish and prosper in their wealth substance and their profits of the earth then such as prophanely and iniuriously deteine them Cura dijs dij sunt et qui coluere colentur o Ouid. in Metamorph. And there is a good similitude or obseruation collected by Rebuffe vpon the affliction of the Philistines that whilest the Philistines withheld the Arke of God they were punished with manie scourges penalties and corrections For the fruites of their fieldes was deuoured of the Mise and Locustes and so he saith that the lay people as long as they with hold the lawfull Tythes from their Ministers shall be with diuerse losses and crosses afflicted p Rebuff tractat de Deci. qu. 15. Nomomath If Parsons ought to haue tithes as you haue plainely proued then they ought to be contented therewith and not to haue any lands or tenements which now they haue for 3 Diuision 1. Whether Parsons ought to haue no more liuing then tythe 2. It is denyed by Canonologus that they ought to haue no more liuing as there is an affirmatiue precept in the law of paying tithes so there is another negatiue ordinance that the Leuites should possesse nothing els Canonol But that negatiue law was not made to be perpetuall as may appeare by the last Chapter of Leuiticus by the 27. and likewise by the 25. Chapter where it is expressely said Domus vrbium Leuiticorum pro possessionibus sunt inter filios Israel suburbana autem eorum non veneant quia possessio sempiterna est Nomomath Whether by your law may a man prescribe in not paying tithes Canonol No man by our law may prescribe 4. Diuision in not paying tythe q Dom. in c. 2. col ill de prae in 6. and a man is bound to pay tythe though by an hundred yeeres hee haue not payed because if it be an offence to pay slowlie it is a greater offence not to pay at all r c. decim in princip 16. qu. 1. and the longer the tythes are with-held the offence is so much greater because as the reason of our law is diutius detinent infaelicem animam alligatam ſ c. fin de consuetu but a
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
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
an elme tree in the place where the waste was assigned and did make a ditch in that place to water cattell which went vpon that ground which was necessary because the water was very lowe and almost dryed vp in that place by that meane he deduced water out of the earth and this was adiudged a good answere r 33. E. 3. Double plea. 9 Codicg That which you haue said is to reason consonant to our law correspondent for as to your first case of the clearing or amending of the conduit-pipes c. Though it be in another mans ground this in our law is not accompted iniurious Å¿ l. 1. c. de quae duc l. 11. l. de cernimus eo ti li. 2. But wee haue a rule in our 4 That the ciuil law agreeth with the common law in suffering and to amend conduit-pipes in another mans ground lawe that if a man ought to conuey water per subterraneos meatus through certain chinkes or crauies of the earth in an other mans ground he must not doe this by a leuill of stones but with pipes of leade because the other mans grounde is by stones more annoyed and empaired t ff de contrah emp. l. si aquae duct But for the improouing of ground from worse to better is clearely permitted by our law As to turne waste grounde into arable or fennish ground into firme ground this we accompt rather a benefite to the owner of the soyle then an iniurie u c. de fund patr l. si li. 11. So it is if a wood become arable x c. quod per noual de verb. signif but to destroy any thing in an other mans ground or to digge a pitte and so to alter the forme and nature of the soyle and by that meane to make it worse is accounted of vs very iniurious but to repaire an olde building or to make some commodious addition is not wrongfull but beneficiall because Non videtur nouum opus facere sed vetus reficere a ff de noua l. 1. §. nouum et §. si quis aedificium Canonol Our lawe doth not withstand any of these assertions Nomomath Well now I pray you proceed 3. Diuision to speake of the penaltie which hee is to suffer by your lawes that committeth waste Codicgn By our Law he that in such case 1. The punishment of wast by the Ciuill Law will denie the wrong done shall be punished with double damages But if he iustifie and it be found against him with single b ff de insti l. 1. §. 1. But he that doth breake the sluces of Nilus so that verie great iniurie is done and to verie manie he is burnt in the same place where the fault was committed in a fire of the height of twelue cubites and his goodes and landes are confiscated because it is crimen quasi laesae Maiestatis c C. de agge Ni non rump l. vâ— â—â— Canonol Our Law in this doth not gainsay you Anglonomoph By an action of Wast at our 2. The punishment of wast by the common Law Law the plaintife if it be found for him shall recouer treble dammages d Fitzh nat bre 58. H. and execution may be had by Elegit of the landes which the defendant had at the time of the inquest taken e 17. E. 3. 5. 18. E. 3. 38. 31. E. 3. Execut 66. and he shall recouer likewise the place wasted f Stat Glouc. cap. 6. Nomomath I will put you to no more paines in this matter but will discend to other things which haue not yet been discussed The sixt Dialogue Of Parceners NOmomath Let me know Codign whether in your Law there be any definition set downe established 1. Diuision touching Parceners as they are tearmed at the common Law and concerning the making of Particion betwixt them agreeable to the common Law Codicgn I would first that Anglonomoph should shew who be Parceners at the common Law and in what sort partition is made otherwise I should but roue at an vncertaine marke Nomomath I pray you do so Anglonomoph for that course is not to be disliked Anglonomoph Mast. Littleton a learned man 1. Two sortes of Parceners Parceners by the common Law and Parceners by custome in our Lawes and a great patriarch of our profession maketh two sortes of Parceners Parceners by the common Law and Parceners by custome Parceners by the common Law are when a man or woman seised of landes or tenements in fee simple or fee taile haue no issue but daughters and die and the tenements discende to the daughters and they enter into the said landes or tenements now they are Parceners and how manie daughters so euer they be they are but one heire to their auncestour And they are called Parceners 2. Who be Parceners by the common Law because by the writ which is called de Particione facienda the Law will compell them to make particion of the land Also if a man seised of tenements in fee simple or in fee taile do die without issue of his bodie ingendred and the tenements discende to his sisters they are Parceners by our Law So if his landes discende to his Auntes a Littlet lib. 3. c. 1. fol. 54. And none bee called Parceners in our Law but women or the heires of women which come to landes and tenements by discent For if two sisters purchase landes or tenements thereof they be called Iointenants and not Parceners b Littlet ibidem fol. 56. But bretherne may be Parceners by the custome as by the custome of Gauelkind in Kent bb Littlet ibid. 59. Codicgn We haue an action in our Law 3. Who be Parceners by the Custome verie like to your aboue mencioned writ of Particione facienda and it is called actio familiae herciscundae and it lieth for them which haue a common inheritance to bee deuided betwixt them As when two sisters brothers or kinsfolkes are instituted heires and by that meane are reputed as seuerall heires to the auncestor or him that instituteth them c ff famil hercis l. 1. et 2. C. de verb. sign l. sin For if the Testatour pointing with his finger at three seuerall persons doe saie vnto them quilibet vestrum haeres mihi esto his 4. That by the Ciuill Law where three heires are instituted they are not reputed as one heire meaning by our Law is taken to be this that euery one of them should be heire in parte non in solidum for maeteria subiecta the thing it selfe doth require it because it is vnpossible by our Law that euery one of them should haue the inheritance in solidum d L. hoc artic ff in fi ff de haere insti But if he doe not speake distributiue but collectiue as if he said Quisquis mihi haeres erit det Titio centum solidos now whether there be one heire or
more heires then one yet Titius shall haue but fiue pounds because of the collectiue word quisquis e L. ab omnibus in princip ff de leg 1. et l. si quis in fundi vocabul in fi eo ti But if the Testator doe say Quicunque primò ingressus fuerit Castrum habebit centum solidos and two doe enter the Castle together they shall euery of them haue fiue poundes because of the distributiue word quicunque which may be verified either in one or moe doing the same act at one time because primus est qui alium ante se non habet f L. qui filium §. 1. ff de leg 1. And if the Testator saie Quilibet haeredum meorum det Titio decem solidos Titius shall haue as many tenne shillinges as theire be heires g L. si pluribus et ibi no. gl ff de leg 2. which prooueth that by our Law the seuerall heires are not accompted as one heire Canonolog Our Law holdeth not the contrarie Nomomath You haue good reason for it But I pray you resolue me Anglonomoph are these which you call Parceners reputed in your Law as one heire to all intents Anglonomoph Yea to all intentes in regard 5. That by the common Law parceners are reputed as one heire as to the discent of landes of the discent though as to the making of particion it accompteth them as seuerall persons gg Fitzh nat bre 197. A. For a Nuper obisâ— ought to be brought by that Coparcener who is deforced from the 6. Parceners in regard of the particion are accompted as seuerall persons tenements against all the other Coparceners which do deforce her although some of them haue nothing in the tenancie h 32. E. 3. Nuper obijt 7. 9. Ass pla 8. For seuerall tenancie or nontenure is no plea in a Nuper obijt because of the priuitie of bloud i 7. E. 3. 16. 9. E. 3. Nuper obijt 8. 8. H. 6. 8. Nomomath Whether shall a writ de Particione 2. Diuision facienda be vsed against Iointenants or tenants in common as well as against Parceners or some other remedie shall be vsed against them Anglonomoph Before the Statute of 31. H. 1. The statute of 31. H. 8. giueth a writ de Particione facienda as well to Iointenants and tenants in common as to parceners 8. Iointenants and Tenants in common were not compelable by writ to make particion of landes and tenements which they vndiuidedly held But by that Statute a writ de Particione facienda may be sued against them as against Parceners k 31. H. 8. c. 1. Rastall Particion 3. But by the common Law Iointenants may make particion by mutuall assent without deede l 47. E. 3. 22. 19. Ass pla 1. And by such particion the iointure is seuered m 30. Ass pla 8. 2. The three seueral actions against Parceners Iointenants and tenants in common at the Ciuill Law Codicgn By our Law seuerall remedies are vsed against these which be both of one bloud or one familie which you haue tearmed Parceners as an action de familia herciscunda and an other maner of action against such as come to the land by ioint title though not by one discent which you haue tearmed Iointenants namely an action which is called of vs Actio pro socio and an other against these which come not in by ioint title but yet claime vnder these which came to the land by ioint title as by your Law are Tenants in common against whom or betwixt whom for the effecting of particion an action lieth at our Law which we call Actionem de communi diuidundo Canonolog To this our Law is not contradictorie Nomomath Let me now vnderstand in 3. Diuision what sort particion of landes or tenements and other thinges is made by your Lawes Anglonomoph Of landes and tenements the 1. Diuers kinds of partion at the common Law particion by our Law is to haue a seuerall part or portion as to haue a third part if there be 1. A particion to haue a third part or a fowerth part three Coparceners or a fowerth part if there be fower c. And if there be two Coparceners and one of them releaseth to the other 2. A particion by way of release with warrantie this hath been helde to be a good particion in Law n 44. E. 3. Counterplee de vouch 22. 34. E. 1. Partition 17. And particion of landes is sometime made by the graunt of 3. Particion by the graunt of a thing de nouo a thing de nouo as if an hundred shillinges of rent be graunted by one of the Coparceners to two of her sisters for equalitie of particion o 2 H. 6. 14. So when land entailed is deuided betwixt Parceners and a rent is reserued vpon 4. Particion by way of reseruation the particion for equalitie the rent reserued shall be in taile and of the same condition whereof the land was at the time of the particion made p 2. H. 7 5. 15 H. 7. 14. But a particion of a Mill is by taking the third part or the fowerth part of 5. Particion by taking the 3. part or the 4. part of the profites the profites as the case requireth q 11. E. 3. Briefe 478. And 45. Ed. 3. it was ruled that Milles Douecots and the like could not be actuallie locallie and as I may saie artuatim as it were by iointes diuided But if a woman ought to bee endowed of the third part of such thinges the third part of the profites ought to bee assigned vnto her r 45. E. 3. Dower 50. Yet 47. Edw. 3. the case was that two Iointenants were of a Mill and they agreed to repaire the Mill the one of them of the one side and the other on the other side in perpetuum and after the Mill was leased to farme and they tooke the rent seuerallie according to the moities and the Inquest said that their meaning was that the particion should bee good against them and their heires Å¿ 47. E. 3. lib. Ass pla 22. But Quaere whether the Shirife by writ de Particione facienda may make any such particion Likewise particion may be of a reuersion that one of the parceners shall haue the reuersion of three acres and the other the reuersion of other three acres and it may be without deede t Fitzh nat bre 62. D. 28. H. 6. 2. And so particion may bee made of a waie u 21. E. 3. 2. And also of a seigniourie uu 27. E. 3. 29. But of an aduowson the particion is to present by tourne x 38. H. 6. 9. 42. Eliz. 87. Corbets case per Iust Walmesley Co. Canonolog Our Law agreeth fully with 6 A difference in the Ciuill law where a thing that hath partes cohâ—rentes is diuided and where it
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
t Varro lib. 5. de lingua Lat. Cicer. lib. 2. de natur de or moneth twentie seauen dayes and eight howers others twentie nine dayes and twelue howers they doe measure by the motion of the Moone from poynt to poynt in the Circle that is when it is reuolued from one point to the same point These do set downe for the moneth that course of the Moone in which it doth tend reciprocally to the Sunne from which it newly digressed The Athenians did obserue the later order of the moneth froÌ„ whom though the Romanes did in circumstance agree yet in substance they accorded for their twelue monethes did not exceed that number of daies which doth coÌ„sist of the twelue lunarie monethes so that it is apparant that both these nations as all other follow the Moone in this businesse and for the more perfit obseruation of this course Sosigenes the Aegiptian perswaded and moued Caesar somewhat to alter the monethes and by consequence the yeare u Plut. in vit Caesar neither is this abhorrent from commen vse for let the case be that A. promiseth to B. that hee will for some consideration pay vnto B. the next moneth 20. li. and the assumpsit is made the eyght day of March whether may A. haue the space of the whole moneth of Aprill to pay the money in or hee must needes paye it before the eight day of Aprill next ensuing accompting the moneth from the eight daye of March Surely by commoÌ„ intendement he hath the whole moneth of Aprill to pay it in for the common people making more accompt of the Calender then of the Calendes doe set downe for a moneth as they find in the calender not as curious wits may measure by the calendes or by like proportion x L. 4. § Sti. si haered de statut Et stat August lib. 1. emend c. 2. The name of day in Latine dies Varro deriueth a deo or dio both which tend to one purpose In this discourse my endeuour is rather to open the natures then the names of things The day is thus defined by Plato in his booke De definitionibus if that booke be his Dies est ab ortibus ad occasus so that how many risings settings there are of the Sunne so many dayes he maketh Aristotle more exquisitly Dies est motus Solis supra nostrum horizontem a Aristotle Topic. 5. Two kinds of daies are most in vse the ciuill day and the naturall day the ciuill day it is therefore tearmed because diuers cities and countries made great diuersities of daies to which they did allot seuerall compasse of time The Romains did deduce the day from midnight to midnight u Plinie lib. 2. c. 77. next following placing the day as it were betwixt two nightes as in the beginning of the world night was before the day and night followed it but the day of the Vmbrians was from midday to midday of the Athenians from Sun sett to Sunne-set of the Babilonians from the ryse of Sunne to Sunne rysing the naturall day is that which consisteth of 24. howers being the space wherein the Sunne is rowled about by the motion of the whole bodie of the heauen from a certaine poynt to the same point The Astronomers make the beginning of this day at noone day or midday as the Vmbrians because to all inhabitants of nations continuing still in their regions the sun commeth alwayes at that time to their Meridian and to that circle which is caried through the toppes and poales of the heauen and euery region hath his meridian of one sort though they haue diuers meridians in number in particular but the rising falling of the sunne is not in any region alway of one sort because the points are chaunged and we see the sun diuersly to rise fall so that the Vmbrians may seeme in this to haue done rightly the Athenians and Babilonians not rightly the Romaines most rightely who haue not as the other nations contrary to the order of nature placed the night in the middest of the day but haue made the night as the two extremes of the day therefore haue placed part of the night in the beginning of the day and part in the end of which consideration our law may seeme to haue takeÌ„ regard in that the forepart of the night it assigneth to the day going before the later part to the day following which may euidently appeare by the inditements of burglary b Crompt I. P. tit indictamenta in sin lib. fol. 224. but the reason of the Romane constitution is learnedly deliuered by Plutarche c Plut. in quaest Roman qu. 83. at midnight saith he when the day of the Romains doth begin the sunne is in that region in the lowest point of the heauen from which it beginneth to tende and to returne to vs and to ascend to our Hemispheare wherefore rightly doth the day beginne then when the sunne that is the cause of the day doth moue toward vs therefore this constitution of the Romanes must needs seeme more probable then that of the Vmbrians because the beginning of a thing is rather to bee referred to that time when the thing groweth to existence then when it declineth and beginneth to leaue his existence so that the opinion seemeth to be good 11. Elizab. in my Lord Dyer his reports that whereas the case was that a lease was made to one of land the eight day of May to haue to hold for twentie one yeares thence next after ensuing the lessee entred the eight day and his entrie seemed lawfull and that he did not enter as a disseisor for by the word thence the first instance of the day in which the demise was made is to be intended and not the next day ensuing the date d 11. Eliz. 2â—6 Dyer so that I cannot see vpon what reason in the accompting of the sixe monethes according to the statute of 27. H. 8. of enrolments the day of the date of the deede of bargaine sale shall not be accompted for any e 5. Eliz. 2â—â— Dyer but the vulgar and common sort of men of all countries doe accompt the day from light to darkenesse which order the Canonistes do obserue f Comment ad l. Titius § Luci. de lib. post the night as Plato defineth it g Plat. in lib. de definit according to common admittance is nothing els but darkenesse Euentide is immediately after Sunset twilight is a doubtful time equally consisting of light and darknesse which is alwaies after euentide For as betwixt knowledge and ignorance there bee two meanes namely doubting and opinion so betwixt day night there is euentide twilight IgnoraÌ„ce is like to night doubting like to twilight opinioÌ„ is like to euentide because as opinion knoweth after a sort but knoweth not truely surely because it is not grounded vpon certain reason so euentide is after a
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
common weale and by the continuall practise of nations most ciuill which onely course I obserue in this discourse the right of Primogeniture or elder-brothership is fenced supported and defended against this last decree of the Millanasses and that first of the Persians For Herod the king of the Iewes did preferre in the succession of his kingdome Antipater who was borne before he was king before Alexander and Aristobulus begotten after he was king q Ioseph lib. antiquit 16. And many yeares after in Hungarie Bela their king being dead Geysa being borne when he was a priuate man was inuested with the Crowne r Fl. Blondus Decad. 2. lib. 6. Micha Ritius lib. de regi Hungar. 2. and before that Otto the first could be setled in the Empire of Rome his brother Henry made a quarrell to it because he was borne when his father was Emperor But the matter discending to armes and battaile victorie did adiudge the Empire to Otto ſ Sigebert in Chron. Wherefore two or more contrarie examples are not in this case to be regarded As that of Genzericus the king of the Vandales who made his testament in this forme or rather this Law in forme of his testament Si Rex moritur qui ei genere proximus et natu maximus erit regni haeres esto for Procopius noteth his great age when he made this Law and it may be that others will note him for his dotage if he did amisse for his discretion if he did it to preuent a daunger t Procop. lib. de bel Vandal 3. So when Charles the king of Sicely died he had two sonnes Charles Martell and Robert Martellus died liuing his father but leauing a sonne whereupon the Lawyers had plentiful matter of disputation offered vnto them whether the sonnes sonne should be preferred before the vncle in the possession of his graundfather but by the Popes meanes Robert obteyned the kingdome But the Emperour Fredericke reuersed this sentence and the Pope cancelled his rescriptr. But D. Bartolus giueth this reason of the Popes doinges because the kingdome of Sicilia was one of the fees of the Church of Rome so that it did not belong to Robert by any lawfull succession but by the graunt and inuestiture of the Lord of the fee x Barto in Arth. post fratr C. de legit haered Neither is it materiall that the Nomades Barbarians did preferre the yonger bretherne before the children of the elder bretherne as Strabo reporteth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Strabo lib. 16. yet I will graunt that in the succession of regall dignities the worthines of bloud is lesse to bee respected then in the succession of common inheritances because in that case the commoditie of the subiectes and the abilitie of them that are to succeede is politikelie to bee respected And therefore diuers Ciuilians doe with vnited consent pronounce that the good estate of the kingdome and subiectes the profite peace and safetie of the same is more to be heeded quà m sanguinis series the course of bloud b Luc. de Pen. in 5. nepot C. qui num lib. 10. et in l. 1. C. de lyro lib. 12. Bald. in c. 1. de feud March And Roboam preferred Abias his yonger sonne before his elder bretherne in the succession of his kingdome c 2 paralip 11 And Salomon the yonger brother d 2. Reg. 1. was preferred before his elder bretherne But this must be done warilie and by the warrant of a good conscience otherwise it can neyther please God nor profite man least a king doe by his choise preiudice his subiectes as Micipsa did by the adoption of Iugurtha e Salust in bel Iugurth But the reasons are manie and forceable wherefore the worthines of bloude shall in the course and conueiance of inheritances bee principally respected First Ius quod personae inest per modum substantiae est ab ea inseparabile et in nullo alio subiecto potest verificari f Arg. l. for did C. de excus mun lib. 10. But ius primogeniturae is in the eldest sonne or in his issue per modum substantiae therefore it is inseparable from him and cannot extende to any other Secondly the aucthoritie of Vlpian prooueth it affirming that hee is a patritian who is borne before his father was made a Senator as well as he who is borne after that hee is possessed of the Senatorie calling g l. Senator S. D. de Senat. Thirdly it is apparant by manie places in the feudall Law that sonnes and nephewes may succeede in the fees and inheritances of Dukes Marquesses and Earles and so it is of the inferiour and vulgar sort of men And it is well said of D. Hotoman Ius sanguinis quod in legitimis successionibus spectatur ipso natiuitatis tempore quaesitum est Fourthly it should bee against all Lawes proximitatis graduum that they which are in a more remote degree the worthines of consanguinitie should be preferred before them that are in a neerer degree Fifthly because Primogenitura is an inseparable incident to the eldest sonne and whatsoeuer is claymed by this must bee claymed by the person of the eldest sonne and none can succeede in the place of the first begotten as first begotten because there cannot be two first begotten But no Law more respecteth the worthines of bloud then the common Law which preferreth the brother before the sister in case of discent the elder brother before the yonger whereas the middle brother purchaseth land the sister before the vncle and the vncle before the cosin h Littlet tit Fee simple and all these particular prerogatiues of kinred Mast. Littleton windeth vp as it were in one clew when he saith that when a man purchaseth land in fee simple and dieth without issue euery one that is his next cosin collaterall for default of issue may inherite and therefore it was well and wisely agreed by the Iustices decimo quinto Elizab. in Cleeres case that in a collaterall discent from any which purchaseth landes and tenements and dyeth without issue the heires of the part of the father and which are of the bloud of the auncestors males in the lineall ascension by the father in the same degree as the brother of the graundfather of the fathers side and his issues be they male or female shall be preferred before the brother of the graundmother of the father side and his issues And so the brother of the great graundfather of the fathers side namely the brother of the father of the father of the father of the purchasour and his issues bee they male or female shall bee preferred before the mother of the great grandmother namely the brother of the mother of the father of the father of the purchasor and his issues For the female sexe is more base then the male in lawe And it was likewise agreede that if the purchasor dyed without issue and hath not any heire of the