☞ Of the lawe eternall. The fyrste Chapitre.

lyke as there is in euery artificer a reason of suche thynges as are to be made by his crafte / so lyke [...]se it behoueth that in euery gouernour there be a reason & afore syght in the gouernour of suche thynges as shalbe or­dered & done by hym: to thē that he hath the gouernaūce of. And for as moche as almightye god is the creatour & maker of all creatures / to the which he is compared as a workemā to his workes. And is also the gouernour of all dedes and mouynges that be founde in any creature. Therfore as the reason of the wysdome of god in asmoche as creatures be creat by hym hath the reason & foresight of all craftes & warkes that haue ben or shalbe / so the reason of the wysdome of god mouynge all thynges by hym made to a good ende / optey­neth the name & reason of a law / & that is called the lawe eternal. And this law eternall is called the fyrste lawe / & it is well [Page] called the fyrste / for it was before all other lawes. And all other lawes be deriuied of it / whervpon saynt Augustin sayth in his fyrste boke of fre arbytrement that in temporall lawes nothynge is rightwyse ne lawfull / but that the people haue deriuied to them out of the lawe eternall. wherfore euery man hath right & tytle to haue that he hath rightwysely of the rightwyse Iugement of the fyrste reason / whiche is the lawe eternall.

but howe may this lawe eternall be knowen / for as the Apostle writtet in the .v. chapitre. of his fyrste Epistle to the Corynthies. Quesūt dernemo scit nisi spiritus dei. That is to say: no man knoweth what is in god / but the spirite of god / wherfore it semeth that he openeth his mouth in to heuē that at­tempteth to know it.

this lawe eternall no man may knowe as it is in it selfe / but onely blessed soules that se god face to face / but almyghty god of his goodnes sheweth of it as moche to hꝭ creatures as is necessary for them / for els god shulde bynde his creatures to a thyng in­possible. whiche may in no wyse be thou­ghte in hym. Therfore it is to vnderstāde that thre maner of wayes almightye god [Page 4] maketh this lawe eternall knowen to his creatures reasonable. Fyrste by the light of naturall reason. Seconde by heuēly re­uelacion. Thyrdly by the ordre of a prince or of any other secōdarie gouernour that hath power to bynde his subgectes to a lawe. And whan the lawe eternall or the wyll of god is knowen to his creatu­res resonable by the lighte of natural vn­derstandynge / or by the light of naturall reason / then it is called the lawe of reason And when it is shewed by heuenly reuelacion in suche maner as hereafter shall ap­pere / then it is called the lawe of god. And when it is shewed vnto hym by the ordre of a prynce / or of any other secundarye gouernoure that hathe power to set a lawe vpon his subgectes / then it is called the lawe of mā: though originallie it be made of god / for lawes made by man / that hath receyued therto power of god be made by god. Therfore the sayd thre lawes: that is to saye / the lawe of reason / the lawe of god / & the lawe of man the whiche haue seuerall names after the maner as they be shewed to man / be called in god one lawe eternall. And this is the lawe of whome it is written. Prouerbiorū octauo / where [Page] it is sayd. ♣ Perme reges regnant et legū conditores iusta descernūt: that is to saye by me kynges reygne / & makers of lawes descerne the trouth. And this sufficeth for this tyme of the lawe eternall.

☞ Of the lawe of reason / the whiche by Doctoures / is called the law of nature of reasonable creature ⸫ The .ii. Chapitre.

Fyrste it is to be vnderstā de / that the lawe of nature maye be considered in two maners / that is to say generally & specially / when it is cōsidered generally / then it is referred to al creatures / aswel resonable as vnresonable / for all vnresonable creatures lyue vnder a certayne reule to them gyuen by nature / ne­cessarie for them to the conseruacion of theyr beyng / but of this lawe it is nat our intent to treate at this tyme. The lawe of nature specially considered: whiche is also called the lawe of reason pertaineth onely to creatures resonable that is mā / which is create to the ymage of god. And this lawe ought to be kept aswell amonge Iewes & gentels / as among cristen mē. And [Page 5] this lawe is alway good & rightwyse sty­ryng & enclynyng a man to good / & abhorrynge euyll: & as to the orderynge of the dedes of mā it is preferred before the law of god. And it is writtē ī the hert of euery man techynge hym what is to be done & what is to be fled. And bycause it is writ­ten in the herte / therfore it may nat be put away / ne it is neuer chaūgeable by no dy­uersitie of place ne tyme. And therfore a­gaynste this lawe prescripciō / statute / nor custome may nat preuayle / and if any be brought in agaynst it they be no prescrip­cions statutes nor customes / but thynges voyd & agaynst iustice. And al other lawes aswell the lawes of god as to the actes of men as other be grounded therevpon.

syth the lawe of reason is written in the herte of euery man / as thou haste sayde before techynge hym what is to be done & what is to be fled / & the which thou sayste maye neuer be put out of the herte / what neded it than to haue any o­ther lawe brought in to ordre the actes & dedes of the people.

though the lawe of reason maye nat be chaunged nor hollye put away: neuertheles before the lawe written it was greatly lette and [Page] blynded by euyll customes & by many synnes of the people beside the originall syn­ne / in so moche that it myghte hardly be discerned what was rightwyse & what was vnrightwyse / & what good & what euyll / wherfore it was necessarye for the good ordre of the people to haue many thynges added to the law of reason aswel by the Churche: as by seculer prynces ac­cordynge to the maners of the countre & of the people / where suche additions shuld be excersised. And this lawe of reason dif­fereth fro the lawe of god in two maners / for the lawe of god is gyuen by reuelaciō of god / & this lawe is gyuen by a naturall light of vnderstandyng. And also the law of god ordereth a man of it selfe by a nighe way to the felicitie that euer shall endure. And the lawe of reason ordered a man to the felicitie of this lyfe.

but what be tho thynges that the lawe of reason techeth to be done / & what to be fled / I pray the shewe me.

the law of reason techeth that good is to be loued & euyll is to be fled. Also that thou shalte do to another that thou woldest another shulde do to the. Also that we may do no­thyng agaynste trouth. Also that a man [Page 6] muste lyue peacefully with other. That iustice is to be done to euery man: & that wronge is nat to be done to any mā. And also that a trespasser is worthy to be pu­nisshed & suche other / of the whiche folow diuers other secundarie cōmaundemētes the whiche be as necessarie conclusions deriuied of the fyrste / as of that cōmaunde­ment that good is to be beloued it folo­weth that a man shall loue his benefac­tour: for a benefactour in that he is a benefactour includeth in hym a reason of goodnes for els he ought nat to be called a be­nefactour / that is to say a good doer: but an euyll doer. And so in that he is a bene­factour / he is to be beloued in all tymes / & in all places. And this lawe also suffereth many thinges to be done / as that it is lawful to put away force with force. And that it is lawfull for euery mā to defende hym selfe & his goodes agaynst an vnlawfull power. And this lawe renneth with euery mānes lawe / & also with the lawe of god as to the dedes of man / & muste be always kept & obserued / and shall alwaye declare what ought to folo vpon the generall rewles of the lawe of man / & shall restrayn thē if they be in any thynge contrary vnto it. [Page] And here it is to be vnderstāde / that after some men / that lawe wherby all thynges were in cōmon was neuer of the lawe of reason / but onely in the tyme of extreme necessitie. For they saye that the lawe of reason may nat be chaūged / but they say it is euident that the law wherby all thī ­ges shulde be in cōmon is chaūged / wher­fore they conclude that it was neuer the lawe of reason.

☞ Of the lawe of god. The .iii. Chapitre.

the lawe of god is a cer­tayne lawe gyuen by reuelacion to reasonable creature shewynge hym the wyl of god / wyllyng that creature reasonable to be bounde to do a thyng or nat to do it for optaynynge of the felicitie eternall. And it is sayde (for the optaynyng of the felicitie eternall) to exclude the lawes shewed by reuelacion of god for the politicall rewle of the people the whiche be cal­led Iudicials: for a lawe is nat proprely called the law of god bycause it was she­wed by reuelacion of god / but also because it directeth a mā by the nerest way to the [Page 7] felicitie ternall as bē the lawes of the olde Testament that be called Morals / & the lawe of the Euāgelistes: the whiche were shewed in moche more excellēt maner: thē the lawe of the olde Testament was: for that was shewed by the mediacion of an Aungell. But the lawe of the Euāgelistes was shewed by the mediacion of our lorde Iesu Christe god an man / & the lawe of god is alwaye rightwyse & iuste / for it is made & gyuen after the wyll of god. And therfore all actes & dedes of man be called rightwyse & iuste when they be done accordynge to the lawe of god & be cōformable to it. Also somtyme a lawe made by man: is called the lawe of god. As when a lawe taketh his principall grounde vpon the lawe of god / & is made for the declara­cion or cōseruacion of the faythe / & to put away heresyes / as diuers lawes Cannōs & also diuers lawes made by the common people somtyme do. The whiche therfore are rather to be called the law of god / thē the lawe of man / yet neuerthelesse all the lawes Cānō be nat the lawes of god. For many of them be made onely for the poli­ticall rewle & conuersation of the people whervpon Iohn̄ Gerson in the treatyse [Page] of the spirituell lyfe of the soule the secōde Lesson / & the thyrde cororally sayth thus. all the Cānons of Popes nor theyr decres be nat the lawe of god. For many of them be made onely for the political cōuersaciō of the people. And if any mā wyll saye be nat all the goodꝭ of the Churche spirituel For they belōge to the spiritualitie & leed to the spiritueltie / we answere that in the hole politicall cōuersacion of the people / there be some specially deputed & dedicate to the seruice of god / the whiche moste specially as by an excellēcie are called spiri­tuell mē as religious mē are. And other though they walke in the way of god / yet neuertheles because theyr office is moste specially to be occupyed aboute such thynges as pertayne to the cōmon welth / & to the good ordre of the people / they be ther­fore called seculer men or lay men / neuer­theles the goodꝭ of the fyrst may no more be called spirituell / thē the goodes of the other for they be thynges mere temporall & kepyng the body as they do in the other And by lyke reason lawes made for the politicall ordre of the Churche be called many tyme spirituell / or the lawes of god Neuerthelesse it is but vnproprely: & other [Page 8] be called Ciuile or the law of man. And in this poynt many be ofttymes deceyued / & also deceyue other / the whiche Iuge tho thynges to be spirituell / the whiche al mē know be thīges materiall & carnal. These be the wordes of Iohn̄ Gerson in the place alleged before. Furthermore besyde the lawe of reason & the lawe of mā it was necessarie to haue the lawe of god for foure reasons. The fyrste because man is ordeyned to the ende of eternal felicite the whi­che excedeth the proportion & facultie of mānes power. Therfore it was necessarie that beside the law of reason & the lawe of man: he shulde be directed to his ende by a lawe made of god. Seconde for asmoche as for the vncerteinte of mānes Iugemēt specially of thynges ꝑticuler & seldō fallīg It hapeneth oft tymes to folowe diuers Iugementes of diuers men / & also diuersities of lawes / & therfore to the entent that a man without any doubte maye knowe what he shulde do / and what he shulde nat do. It was necessary that he shulde be directed in all his dedes by a lawe heuenly gyuen by god / the whiche is so appa­rante that no man maye swarue fro it as is the lawe of god. Thyrdly man [Page] may onely make a lawe of suche thynges as he may Iuge vpon / & the Iugement of man may nat be of inwarde thynges / but onely of outwarde thynges / & neuertheles it belongeth to perfeccion that a man be well ordered in bothe / that is to say / aswel inwarde as outwarde. Therfore it was necessary to haue the law of god / the which shulde ordre a man aswell of inwarde thynges as of outwarde thynges. The fourth is bycause as saint Augustyn sayth in the fyrste boke of fre arbitrement / the lawe of man maye nat punisshe all offences: for if all offences shulde be punisshed / the cōmon welth shulde be hurte as it is of cōtractes for it can nat be auoyded / but that as lōge as contractes be suffered many offences shall folowe therby / & yet they be suffered for the cōmon welthe. And therfore that no euyll shulde be vnpunysshed / it was necessary to haue the law of god that shulde leue no euyll vnpunisshed.

☞ Of the lawe of man ∴ The .iiii. Chapitre.

The law of mā the which somtyme is called the lawe positiue [Page 9] is deriuied by reason as a thynge whiche is necessarily & probably folowyng of the lawe of reason / & of the lawe of god. And that is called probable that appereth to many & specially to wyse men to be trewe. And therfore in euery lawe positiue well made is somwhat of the lawe of reason / & of the lawe of god: & to discerne the lawe of god & the lawe of reason fro the law positiue is very harde / & thoughe it be harde yet it is moche necessary in euery morall doctryne / & in all lawes made for the common welth. And that the lawe of man be Iuste & rightwyse / two thynges be neces­sary / that is to say / wysdome & auctorite. wysdome that he may Iuge after reason / what is to be done for the cōminaltie / and what is expedient for a peasible conuersacion / & necessary sustentacion of thē. Auc­toritie that he haue auctoritie to make la­wes. For the lawe is named of Ligare: that is to say / to bynde. But the sentence of a wyse man dothe nat bynde the cōmi­nalte / if he haue no rewle ouer them. Also to euery good lawe be requyred these propreties: that is to saye that it be honeste / rightwyse / possible in it selfe / & after the custome of the countre / conueniente for the [Page] place & tyme / necessary / profitable / & also manifeste that it be nat capcious by any darke sentēce ne myxte with any pryuate welth / but all made for the cōmon welth. And after saynt Bryget in the fourth bo­ke in the .C. xxix. Chapitre / euery good law is ordeyned to the helthe of the soule & to the fulfillinge of the lawes of god: & to enduce the people to flye euill desyres & to do good warkꝭ. Also as the cardinal of Camer writtet what so euer is rightwyse in the lawe of mā is rightwyse in the law of god / for euery mānes lawe muste be cō ­sonant to the law of god. And therfore the lawes of prynces / the commaundemētes of prelates / the statutes of cōmynalties / ne yet the ordinaunce of the Churche is nat rightwyse nor obligatorie / but it be cō sonant to the law of god. And of suche a law of man that is consonant to the law of god / it appereth who hath righte to lā des & goodes / & who nat: for what so euer a man hath by suche lawes of mā he hath rightwyslye. And what so euer is had a­gaynst suche lawes is vnrightwyslie had For lawes of mā nat contrary to the law of god / nor to the lawe of reason muste be obserued in the lawe of the soule / and he [Page 10] that dispiseth thē dispiseth god & resisteth god. And furthermore as Gracian sayth because euyll men fere to offende for fere of payne. Therfore it was necessary that diuers paynes shulde be ordeyned for dy­uers offences / as Phisicions ordayne dy­uers remedyes for seuerall disseases. And suche paynes be ordeyned by the makers of lawes after the necessitie of the tyme / and after the disposiciō of the people. And thoughe that lawe that ordeyneth suche paynes hath therby a confermitie to the law of god: for that the law of god cōmaū deth that the people shall take away euyl from amonge them selfe / yet they belōge nat so moche to the lawe of god / but that other paynes stādyng the fyrste prīciples myghte be ordayned and appoynted / and therfore that is the law that is called mo­ste proprely the lawe positiue and the law of man. And the Phylosopher sayd in the thyrde boke of his Etykes / that the entēt of a maker of a lawe is to make the peo­ple good and to brynge them to vertue. And though I haue somwhat in a generalitie shewed the whervpon the law of Englāde is groūded. For of necessitie it muste be groūded of the sayde lawes / that is to [Page] say of the lawe eternall / of the lawe of reason / & of the lawe of god. Neuerthelesse I pray the shewe me more specially where­vpon it is grounded as thou thynkest / as thou before haste promysed to do.

I wyll with good wyll doo therin that lyeth in me / for thou hast she­wed me a righte playne & a strayte waye thereto. Therfore thou shalte vnderstande that the lawe of Englande is grounded vpon syxe pryncipall groūdes. Fyrste it is grounded on the lawe of reason. Seconde on the lawe of god. Thyrdly on diuers generall customes of the realme. Fourthly of diuers principles that be called maxy­mes. Fyftly on diuers ꝑticuler customes Sixtly on diuers statutes made in parlia­mentes by the kyng & by the cōmon coū ­cell of the realme / of which groūdes I shal speke by ordre as they be reherced before / & fyrste of the lawe of reason.

☞ Of the fyrste groūde of the lawe of Englande. The .v. Chapitre.

The fyrste grounde of the lawe of Englande is the lawe of rea­son / wherof thou haste treated before [Page 11] in the seconde chapitre / the whiche is kept in this realme as it is in al other realmes & as of necessitie it muste nedes be as thou hast sayd before.

But I wolde knowe what is called the lawe of nature after the lawes of Englāde.

It is nat vsed amonge them that be ler­ned in the lawes of Englande to reason what thynge is commaunded or prohibet by the lawe of nature & what nat: but all the resonynge in that behalfe is vndre thꝭ maner: as when any thyng is grounded vpon the lawe of nature: they say that reason wyll that suche a thynge be done / & if it be ꝓhibite by the lawe of nature. They say it is agaynst reason or that reason wil nat suffre that it be done.

Then I praye the shewe me what they that be lerned in the lawes of the realme holde to be cōmaūded or prohibite by the lawe of nature vndre suche termes & after suche maner as is vsed amongest thē that be lerned in the sayde lawes.

There be put by them that be lerned ī the lawes of Englāde two degrees of the law of reason / that is to say / the lawe of reasō primarie / & the lawe of reason secundarie by the lawe of reason primarie be ꝓhibite [Page] in the lawes of Englande murther that is the deth of hym that is Innocēt / periurie / disceyte / brekynge of the peace & many other lyke. And by the same law also it is lawfull for a mā to defende hī selfe agaīste an vniuste power so he kepe dewe circum­staunce. And also if any promyse be made by man as to the body it is by the law of reason voyde in the lawes of Englande. The other is called the lawe of secūdarie reason / the whiche is deuided in to two braunches / that is to saye: in to the lawe of a secundarie reason generall / and in to a lawe of secundarie reason perticuler.

The lawe of a secundarie reason generall is groūded & deriuied of that general law or generall custome of propretie whereby goodes mouable & vnmouable be brought in to a certayne propretie / so that euery man may knowe his owne thynge. And by this braūche be prohibited in the lawꝭ of Englande disseasons / trespasse in lan­des & goodꝭ rescues thefte vnlawfull with holdynge of another mānes goodes and suche other. And by the same lawe it is a groūde in the lawes of Englande that satisfaccion muste be made for a trespasse / & that restituciō muste be made of suche goo­des [Page 12] as one man hath that belonge to another man / that dettes muste by payde: co­uenaūtes fulfulled & suche other. And be­cause disseasons / trespasse in landes and goodes: thefte & suche other had nat ben knowen / if the lawe of propretie had nat ben ordeyned. Therfore all thynges that be diriuied by reason out of the sayde law of propretie / be called the lawe of reason secundarie generall / for that lawe of pro­pretie is generally kept in al our coūtres. The lawe of reason secundarie perticuler is that lawe that is deriuied vpon diuers customes generall & perticuler & of diuers maximes & statutes ordeyned in this realme. And it is called the law of reason secū darie perticuler because that reason ī that case is deriuied of suche a law that is one­ly holden for law in this realme / & in none other realme.

☞ Of the .ii. grounde of the lawe of Englande. The .vi. Chapitre.

The secōde grounde of the lawe of Englande is the lawe of god & therfore for punisshement of them that offended agaynst the law of god / it is enquered in many courtes in this realme / if any holde any opynions secretely or in any other maner agaynst the trewe catholicall faythe. And also if any generall cu­stome were directly agaynste the lawe of god / or if any statute were made directly agaynst it / as if it were ordayned that no almesse shulde be gyuen for no necessitie that custome & statute were voyde. Neuer thelesse the statute made in the .xxiii. yere of kyng Edwarde the .iii. wherby it is or­dayned that no man vnder payne of Im­prysonemēt shall gyue any almesse to any valyaunt beggers that may well laboure that they may so be compelled to laboure for theyr lyuynge is a good statute / for it obserueth the intēt of the law of god. And also by auctoritie of this lawe there is a [Page 14] grounde in the lawes of Englande / that he that is accursed shall maynteyne no accion in the kynges courte / except it be in very fewe cases so that the same excōmu­nicacion be certified before the kynges Iustices in suche maner as the lawe of the realme hath appoynted. And by the auctoritie also of this grounde / the lawe of Englande amitteth the spirituell Iurisdicciō of dysmes and offerynges. And of all o­ther thynges that of righte belonge vnto it. And receyueth also all lawes of the Churche dewly made and that excede nat the power of them that made them. In so moche that in many cases it behoueth the kinges Iustices to iuge after the lawꝭ of the Churche.

Howe may that be that the kynges Iustices shulde iuge in the kynges courtes after the lawe of the Churche / for it semeth that the Churche shuld rather gyue iugemente in suche thynges as it may make lawꝭ of thē the kyngꝭ Iusticꝭ.

That may be done in many cases / wherof I shall for an exāple put this case. If a writ of right of warde be brought of the bodye. &c. And the tenaūt confessyng the tenour and the nōage of the Infāt / sayth that the Infāt [Page] was maryed in his auncesters dayes. &c̄. whervpon .xii. men besworne which gyue this verdyt / that the Infāte was maryed in the lyfe of his auncestour. And that the woman in the lyfe of his auncestour sued a deuorce whervpon sentence was gyuen that they shulde be deuorced. And that the heyre appeled whiche hangeth yet vndis­cussed prayenge the ayde of the Iustice to knowe whether the Infante in this case shalbe sayd maryed or nat. In this case if the lawe of the Churche be that the sayde sentence of deuorce stādeth in his strength & vertue vntyll it be adnulled vpō the said appele. Than the Infante at the deth of his auncestoure was vnmaryed because the fyrste maryage was adnulled by that deuorce. And if the lawe of the Churche be that the sentence of that deuorce standeth nat in effecte tyll it be affermed vpon the sayde appele / then is the Infante yet ma­ryed / so that the value of his maryage cā nat belōge vnto the lorde. And therfore in this case Iugemēt condicionell shalbe gyuen. &c̄. And in lykewyse the kynges Iustice in many other cases shall Iuge after the lawe of the Churche lyke as the spiri­tuell Iuges muste in many cases forme [Page 15] theyr Iugement after the kynges lawes.

Howe may that be that the spirituel Iuges shulde iuge after the king lawes. I pray the shewe me some certayn case therof.

Though it be somwhat a digressiō fro our fyrst purpose / yet I wyll nat with saye thy desire / but wyll with good wyll put the a case or two therof / that thou mayste the better perceyue what I meane. If A. & B. haue goodes ioyntly / & A. by his laste wyll byqueteth his porcion therin to C. and maketh the sayde B. his executour & dyed / & C. asketh the execucion of this wyll in the spirituell courte. In this case the Iuges there be bounde to Iuge that wyll to be voyde: be­cause it is voyde by the lawꝭ of the realme And in likewyse if a mā be outlawed / & aft by his wyll bequeteth certayn goodes to Iohn̄ at stile / & make his executours & dye the kynge seaseth the goodes & after gy­ueth thē agayne to the executours / & after Iohn̄ at style suyth a sitacion oute of the spirituell courte agaynste the executours to haue execucion of the wyll / in this case the Iuges of the spirituell court must iu­ge the wyll to be voyde as the lawe of the realme is that it is. And yet there is no [Page] suche lawe of forfayture of goodes by out lagarie in the spirituell lawe.

☞ Of the thyrde grounde of the lawe of Englande. The .vii. Chapitre.

The thyrde grounde of the lawe of Englande standeth vpon di­uerse generall customes of olde tyme vsed through all the realme: whiche haue ben accepted and approued by our soue­raygne lorde the kynge and his progeni­tours and all theyr subgectes. And by cause the sayde customes be neyther agaynst the lawe of god / nor the lawe of reason / & haue ben alwaye taken to be good and necessarie for the cōmon welth of al the real me. Therfore they haue optayned the strē ghte of a lawe / in so moche that he that doth agaynste them dothe agaynste Iustice. And these be the customes that proprely be called the common law. And it shall alway be determined by the Iustices whether there be any suche generall custome or nat / and nat by. xii. men. And of these generall customes and of certayne princi­ples that be called maximes whiche also [Page 16] take effecte by the olde custome of the real me / as shall appere in the Chapitre nexte folowynge dependeth moste parte of the lawe of this realme. And therfore oure soueraygne lorde the kynge at his coro­nacion amonge other thynges taketh a solempne othe / that he shall cause all the customes of hys realme faythfully to be obserued.

I praye the shewe me some of these generall customes.

I wyll with good wyll / and fyrst I shall shewe the how the custome of the realme is the very grounde of diuers courtes in the realme / that is to say of the Chaūcerie of the kyngea benche / of the cō mon place: & the Escheker / the whiche be courtes of recorde because none may sit as Iuge ī those courtes by by the kīges let­ters patētes. And these courtꝭ haue diuers auctorites wherof it is nat to treate at thꝭ tyme. Other courtꝭ there be also only groū ded by the custome of the realme: that be of moche lesse auctorite thē the courtꝭ before reherced / as ī euery shyre withī the realme there is a court that is called the Coū tye / & another that is called the Shyryftes torne / & ī euery maner is a courte that is called a courte Baron. And to euery [Page] fayre & market is incident a court that is called a court of Pypowdres. And though in some statutes is made mēcion somtyme of the sayd courtes / yet neuertheles of the fyrste Institucion of the sayd courtes: and that suche courtes shulde be / there is no statute nor law writtē in the lawes of Englande. And so all the groūde & begynnīg of the sayde courtes depēde vpō the custome of the realme the whiche custome is of so hygh auctoritie that the sayde courtes ne theyr auctorities maye nat be altered / ne theyr names chaunged without Par­lyament.

❧Also by the olde custome of the realme no mā shalbe takē īprysoned disseased nor otherwyse destroyed / but he be put to an­swere by the lawe of the lande: & this custome is cōfermed by the statute of Magnacarta the .xxvi. chapitre.

❧Also by the olde custome of the realme all men great & small shal do & receyue Iustice in the kinges courtes / & this custome is cōfermed by the statute of Marl the .i. Chapitre.

❧Also by the olde custome of the realme the eldest sone is onely heyre to his auncestour / & if there be no sones but doughters [Page 17] then all the doughters shalbe heyre: & so it is of susters & other kynneswomen. And if there be nother sone / doughter / brother / nor suster / then shall the enheritaunce dis­cende to the nexte kynnesman or kynnes­woman of the hole blode to hym that had the enhitaūce of howe many degrees so euer they be from hym. And if there be no heyre generall nor speciall / then the lande shall Eschete to the lorde of whome the lande is holden.

❧Also by the olde custome of the realme landes shall neuer ascende / nor discēde frō the sone to the father or mother / nor to any other auncestre in the right lyne / but it shall rather Eschete to the lorde of the fee.

❧Also if any alyē haue a sone that is an alyen & after is made Denizyn / & hath a­nother sone / & after purchaseth lādes and dyed / the yōger sone shall enherite as heyr & nat the eldest.

❧Also if there be thre bretherne & the mydlest brother purchase landes & dyed without heyre of his body / the eldest bro­ther shall inheryt as heyre to hym: & nat the yonger brother.

❧Also if lande in fee symple discēde to [Page] a man by the ꝑre of his father & he dyed without heyre of his body / then that inheritaunce shall discende to the next heyre of the parte of his father. And if there be no suche heyre of the parte of his father / then if the father purchased the lādes it shal go to the next heyre of the fathers mother / & nat to the next heyres of the sonesmother but it shall rather Eschete to the lorde of the fee: but if a man purchase lādes to him & to his heyres & dye without heyre of his body as is sayd before / thē that lāde shall discēde to the next heyre of the parte of his father if there be any / & if nat then to the next heyre of the parte of his mother.

❧Also if the sone purchaseth lādes ī fee & dye without heyre of his body / the lande shall discende to his vncle & shall nat ascē ­de to his father / but if the father haue a sone thoughe it be many yeres after the deth of the elder brother / yet that sone shal put out his vncle & shall enioye the lande as heyre to his elder brother for euer.

❧Also by the custome of the realme the chylde that is borne before spouselles is bastarde & shall nat inheryte.

❧Also the custome of the realme is that no maner of goodes nor catalles reall nor [Page 18] parsonell shall neuer go the the heyre / but to the executours / or to the ordinary or administratours.

❧Also the husbande shall haue all the Chatelles parsonelles that his wyfe had at the tyme of the spouselles or after: and also Chatelles real if he ouer lyue hꝭ wyfe but if he sell or gyue away the Chatelles realles & dye by that sale or gyfte the enterest of the wyfe is determined / & els they shall remayne to the wyfe if she ouer lyue her husbande.

❧Also the husbāde shall haue all the in­heritaūce of his wyfe wherof he was sea­sed in dede in the right of his wyfe during the spouselles in fee or in fee tayle general for terme of lyfe / if he haue any chylde by her to holde as tenaunt by the curtesye of Englāde / & the wyfe shall haue the thyrde parte of the inheritaunce of her husbande wherof he was seased in dede or in lawe after the spouselles. &c. but in that case the wyfe at the deth of her husbande muste be of the age of .ix. yere or aboute / or els she shall haue no dowrye.

what if the husbande at his deth be within the age of .ix. yere.

I suppose she shall yet haue her dower.

[Page] ❧Also the olde lawe & custome of the re­alme is that after the deth of euery tenāte that holdeth his landes by knyghtes ser­uice the lord shall haue the warde & mariage of the heyre tyll the heyre come to the age of .xxi. yere. And if the heyre in that case be of full age at the deth of his auncestre / then he shall paye to his lorde his re­lyefe / whiche at the cōmon lawe was nat certayne / but by the statute of Magna carta / it is put in certayne: that is to saye for euery hole knyghtes fee to pay. C.s̄. And for a hole baronye to pay a.C. marke for relyef. And for a hole erledom to pay a.C. li. & after the rate. And if the heyre of such a tenaūt be a womā / & she at the dethe of her auncestre be within the age of .xiiii. yeres / then by the cōmon law she shuld haue ben inwarde onely tyll .xiiii. yere / but by the statute of Westm̄ the fyrste in suche ca­se she shalbe inwarde tyll .xvi. yere. And if at the deth of the auncestre she be of the age of .xiiii. yere or aboue / she shalbe out of warde / though the lādes be holden of the kynge. And thē she shall pay relyef as an heyre male shall.

❧Also of landes holden in socage if the auncestre dye / his heyre beynge withī the [Page 19] age of .xiiii. yeres / the next frēd of the heyt to whome the inheritaūce may nat discende shall haue the warde of his body & lan­des tyll he shall come to the age of .xiiii. yere / & thē he may entre. And whē the heyre cōmeth to the age of .xxi. yere / thē the gardeyn shall yelde hym accōpte for the ꝓfettes therof by hym receyued.

❧Also suche an heyre in socage for his relyefe shall double his rent to the lorde the yere folowyng the deth of his aunce­stre / as if his aūcestre helde by .xii. d. rente the heyre in the yere folowynge shall paye that .xii. d. for his rēt / & other .xii. d for his relyef. And that relyefe he muste paye though he be within age at the deth of his auncestre.

❧Also there is an olde law & custome in this realme that a freholde by way of fef­fement gyfte or lease passeth nat without lyuery of season be made vpō the lāde ac­cording though a dede of feffemēt be ther­of made & deliuered: but by way of surrendre particion & eschaūge a freholde maye passe without liuery.

❧Also if a mā make a wyll of lāde wherof his is seased ī his demesne as of fee / that wyll is voyde / but if it had stande in feffes [Page] handes it had ben good. And also in London suche a wyll is good by the custome of the cytie if it be inrowled.

❧Also a lease for terme of yeres is but a chatel in the lawe / & therfore it may passe without any liuery of season / but otherwise it is of a state for terme of lyfe for that is a freholde in the law / & therfore lyuerey muste be made therof or els the freholde passeth nat.

❧Also by the olde custome of the realme a man may distreyne for a rent seruice of cōmon right. And also for a rent reserued vpō a gifte in tayle / a lease terme of lyfe / of yeres & at wyll / & in suche case the lorde may distreyne the tenauntes of beestes as soon as they come vpō the groūde / but the beastꝭ of straūgers that come ī but by maner of an escape / he may nat distreyne tyll they haue bē leuāt & couchāt vpō the groū de: but for dette vpō an obligaciō nor vpō a contracte / nor for accompte ne yet for arerages of accōpte / nor for no maner of trespasse / reparacions / nor suche other no man may distreyne.

❧Also by the olde law & custome of the realme all yssues that shalbe ioyned be­twixte partie & partie in any court of recorde [Page 20] within the realme except a fewe wher­of it nedeth nat to treate at thꝭ tyme / must be tryed by .xii. fre & lawfull mē of the vis­ne that be nat of affinitie to none of the parties. And in other courtes that be nat of recorde / as in the countye / court baron / hundred & suche other lyke / they shalbe tryed by the other of the ꝓtyes & nat other wyse oneles the partyes assente that it shalbe tryed by the homage. And it is to be noted that lordes / Barons / & all pyers of the realme be excepted out of suche trialles if they wyll / but if they wyll wylfully be sworne therin / some say it is no erroure And they may if they wyll haue a writte out of the Chauncerie directed to the Shyryfe cōmaundynge hym that he shal nat impanell them vpon no enqueste.

And of this that is saydbefore it appereth that the customes aforesayd nor other lyke vnto thē / wherof be very many in the lawes of Englande can nat be proued to haue the strenght of a law onely by reasō for how may it be proued by reason that the eldest sone shall onely enherite his fa­ther & the yōger to haue no parte / or that the husbāde shall haue the hole lāde for terme of his lyfe as tenaunt by the courtesye [Page] in suche maner as before appereth. And that the wyfe shall haue onely the thyrde parte in the name of her dower / & that the husbande shall haue all the goodes of his wyfe as his owne. And that if he dye ly­uynge the wyfe / that his executours shall haue the goodes / & nat the wyfe. All these & suche other can nat be proued onely by reason that it shulde be so & no otherwyse all though they be reasonable / & that with the custome therī vsed suffiseth in the law And a statute made agaynst suche gene­rall customꝭ ought to be obserued because they be nat merely the law of reason.

❧Also the law of ꝓpretie is nat the law of reason / but a law of custome how be it that it is kept / & is also right necessarie to be kept in all realmes & amōge all people And so it may be nōbred amōge the gene­rall customes of the realme. And it is to vnderstande that there is no statute that treateth of the begynnyng of the sayd cu­stomes: ne why they shulde beholden for law. And therfore after thē that be lerned in the lawes of the realme: the olde custo­me of the realme is the onely & sufficiente auctoritie to them in that behalfe. And I pray the shewe me what doctours holde [Page 21] therin / that is to say whether a custome onely be sufficient auctoritie of any lawe.

doctours holde that a law groūded vpon a custome is the moste su­rest law / but this muste always vnderstā ­de therwith that such a custome is nother cōtrarie to the lawe of reason / nor to the law of god. And now I pray the shewe me somwhat of the maxymes of the lawe of Englande wherof thou haste made men­ciō before in the .iiii. chapitre.

I wyll with good wyll.

☞ Of the .iiii. grounde of the lawe of Englande. The .viii. Chapitre.

The .iiii. groūde of the law of Englāde standeth in diuers principles that be called in the lawe maxi­mes / the which haue ben always takē for law ī this realme / fo that it is nat lawfull for none that is lerned to denye them / for euery one of those maximes is sufficiente auctoritie to hym selfe. And whiche is a maxime / & whiche nat shall alway be de­termined by the Iuges / & nat by .xii. men And it nedeth nat to assigne any reason / why they were fyrste receyued for maxi­mes [Page] for it suffiseth that they be nat agaīst the law of reason nor the law of god / and that they haue alway be taken for lawe. And suche maximes be nat onely holden for law / but also other cases lyke vnto thē & all thynges that necessarily foloweth vpō the same / ar to be reduced to lyke law And therfore moste cōmēly there be assigned some reasons or cōsideracion why su­che maximes be resonable to the intente that other cases lyke may the more conueniently be applyed to them. And they be of the same strength & effect in the law as statutes be. And though the generall cu­stome of the realme be the strength & war­raunte of the sayd maximes: as they be of the generall customes of the realme / yet because the sayd generall customes be in maner knowen throughe the realme as well to them that be vnlerned as lerned / & may lightly be had & knowen and that with lytell studye. And the sayd maximes be onely knowē in the kynges courtes or amōge them that take great studie in the lawe of the realme / & amonge fewe other persones. Therfore they be set in this writtynge for seuerall groundes & he that ly­steth may so accompte them / or if he wyll [Page 22] he may take thē for one grounde after his pleasure / of which maximes I shal here­after shewe the parte.

❧Fyrst there is a maxime that escuage vncertayne maketh knyghtes seruice.

❧Also there is another maxime that es­cuage certayne maketh socage.

❧Also that he that holdeth by castelgarde / holdeth by knyghtes seruice / but he holdeth nat by escuage. And that he that holdeth by .xx. s. to the garde of a castell hol­deth by socage.

❧Also there is a maxime that a discēt taketh awaye an entre.

❧Also that no prescripcion in lādes maketh a ryght.

❧Also that a prescripcion of rente & of profites aprendre out of lande maketh a ryghte.

❧Also that the limitaciō of a ꝑscripciō generally takē is frō the tyme that no mā nes mynde renuyth to the contrarie.

❧Also that assignes may be made vpō lādes gyuē in fee for terme of lyfe / or for t­me of yeres though no mēciō be made of assignes / & the same lawe is of a rent that is graūted / but otherwyse it is of a warā ­tie & of a couenaunte.

[Page] ❧Also that a condicion to auoyde a fre­holde can nat be pleaded without dede / but to auoyde a gyft of a chatel it may be pleaded without dede.

❧Also that a release or a confirmacion made by hym that at the tyme of the release or cōfirmacion made had no ryghte is voyde in the law / though a righte come to hym after / except it be with warraūtye / & thē it shall barre hym of all right that he shall haue after the warraūtye made.

❧Also that a right or title of acciō that onely dependeth in accion can nat be gyuē nor graunted to none other but onely to the tenaunt of the groūde / or to hym that hath the reuercion or remayndre of the same lande.

❧Also that in an accion of dette vpon a contracte the def. maye wage his law / but otherwyse it is vpō a lease of lādes for terme of yeres or at wyll.

❧Also that if an exigent in case of felo­nye be awarded agaynste a man: he hathe therby forthwith forfeted his goodes to the kynge.

❧Also if the sone be attaīted in the lyfe of the father / and after he purchaseth his Chartour of pardon of the kynge / & after [Page 23] the father dyed. In this case the lāde shall Eschete to the lorde of the fee in so moche that that though he haue a yōgerbrother yet the lāde shall nat discende to hym / for by the atteyndre of the elder brother the blode is corrupte & the father in the lawe dyed without heyre.

❧Also if an Abbot or a Priour alyene the landes of his house & dyed / in that case though his successour haue right to the lā de / yet he may nat entre: but he muste take his acciō that is appoynted hī by the law.

❧Also there is a maxime ī the law that if a villayne purchase landes & the lord entre / he shall enioye the lāde as his owne / but if the villayne alyene before the lorde entre / that alienacion is good. And the same law is of goodes.

❧Also if a mā stele goodes to the value of .xii. d. or aboue it is felonye / and he shall dye for it. And if it be vnder the value of .xii. d. then it is but petite larcinie & he shall nat dye for it / but shalbe otherwyse punysshed after the discreciō of the Iuges except it be takē fro the person / for if a mā take any thynge howe lytell so euer it be / from a mānes ꝑson felonously / it is called roberye & he shall dye for it.

[Page] ❧Also he that is areyned vpon an Inditemēt of felonie shalbe admitted ī fauoure of lyfe to chalēge .xxxv. iurours perētorily but if he chalēge any aboue that nombre / the law taketh hī as one that hath refused the law because he hath refused thre hole enquestes / & therfore he shal dye: but with cause he may chalēge as many as he hath cause of chalēge to. And further it is to be vnderstāde that suche peremtorie chalēge shall nat be admitted in appeale because it is at the suyt of the partie.

❧Also the lande of euery man is in the law enclosed frō other though it lye ī the opē felde. And therfore if a mā do a trespas therī the writ shalbe quare clausū fregit.

❧Also that rētes / cōmons of pasture of turbary reuerciōs remayndres / nor suche other thyngꝭ which lye nat in manuell occupaciō may nat be gyuen nor graūted to none other without writtynge.

❧Also that he that recouereth dette or damages in the kynges court by suche an acciō within a Capias lay in to the ꝓcesse may withī a yere after the recouerie haue a Capias ad satisfaciendū to take the bo­dye of the defendaūt & to cōmit hī to pry­son tyll he haue payd the dette & damagꝭ [Page 24] but if there lay no Capias ī the fyrst acciō thē the pleyntyfe shall haue no Capias ad satisfaciēdū / but muste take a Fierifacias or an Elegit withī the yere: or a Scire fac̄ aft the yere or within the yere if he wyll.

❧Also if a release or confirmaciō be made to hym: that at the tyme of the release made had no thynge in the lāde. &c̄. the release or cōfirmaciō is voyde except certaī cases as to vouchye & certayne other whiche nede nat here to be remembred.

❧Also there is a maxime in the lawe of Englande that the kynge may dissease no mā / ne that no mā may dissease the kynge ne pull any reuercyon or remayndre out of hym.

❧Also the kynges excellēcie is so hygh in the law that no freholde may be gyuen to the kynge ne be deriuied from hym / but by matter of recorde.

❧Also there was somtyme a maxime & a lawe in Englande that no man shulde haue a writte of right: but by special suyt to the kynge. And for a fyne to be made in the Chaūcerie for it / but these maximes be chaūged by the statute of Magna carta the .xvi. Chapi. where it is sayd thus Nulli negabimꝰ nulli vendemus rectum vel [Page] iusticiam. And by the wordes nulli negabimus / a mā shall haue a writte of righte of course in the Chaūcerie without suynge to the kynge for it. And by the wordes nulli vendemꝰ. He shall haue it without fyne and so many tymes the olde maximes of the law be chaunged by statutes.

❧Also though it be reasonable that for the many solde diuersities of accions that be in the lawes of Englande / that there shulde be diuersities of processe as in the reale accions after one maner / & in perso­nall accions after another maner: yet it can nat be proued merely by reason that the same processe ought to be had & none other / for by statute it might be altered.

And so the groūde of the sayde processe is to be referred onely to the maximes & cu­stomes of the realmes. And I haue she­wed the these maximes before reherced / nat to the intēt to shew the specially what is the cause of the law in thē / for that wolde aske a great respite / but I haue shewed them onely to the intēt that thou mayste perceyue that the sayde maximes & other lyke may conueniently be sette for one of the groundes of the lawes of Englande / moreouer there be diuers cases / wherof I [Page 25] am in doute whether they be onely maxi­mes of the lawe or that they be grounded vpō the law of reason / wherin I pray the let me here thyn opinion.

I pray the shewe those cases that thou meanest: & I shall make the answere therin as I shall se cause.

☞ Hereafter foloweth diuers cases wherein the Student douteth whether they be onely maximes of the law or that they be grounded vpon the lawe of reason. The .ix. Chapitre.

The law of Englāde is that if a man cōmaunde another to do a trespasse & he doth it / that the cōmaū dour is a trespasser. And I am in doute whether that be onely by a maxime of the law / or that it be by the law of reason.

❧Also I am in doute vpon what law it is grounded that the Accessory shall nat be put to answere before the principal. &.c̄.

❧Also the lawe is that if an Abbot bye a thyng that commeth to the vse of the howse & dyed that his successours shalbe charge / & I am somwhat in doute vpon [Page] what grounde that lawe dependeth.

❧Also that he that hathe possession of lande though it be by disseason hath right agaynste all men / but agaynste hym that hath ryghte.

❧Also that if an accion reall be sued a­gaynste any man that hath nothyng ī the thynge demaunded he writte shall abate as at the cōmon lawe.

❧Also that the alienaciō of the tenaūt hangynge the writ nor his entre in to religion / or if he be made a knyghte / or if she be a woman & take an husbāde hangyng the writ / that the writ shall nat abate.

❧Also if lande & rent that is goyng out of the same lāde come in to one mānes hā de of lyke estate & lyke suertye of tytle / the rent is extincte.

❧Also if lande discende to hī that hath right to the same lande before / he shalbe remitted to his better tytle if he wyll.

❧Also if two tytles be concurrāt togy­ther / the eldest tytle shalbe preferred.

❧Also that euery man is bounde to make recompence for suche hurte as his bea­stes shall do in the corne or grasse of hys neyghboure though he knowe nat that they were there.

[Page 26] ❧Also if the drmaundaūt or playntyfe hangynge his writte wyll entre in to the thynge demaūded this writte shall abate. And it is many tymes very harde and of great difficultie to knowe what cases of the lawe of Englande be grounded vpon the law of reason / & what vpon custome of the realme / & thoughe it be harde to discusse it: yet is very necessary to be knowē for the knowele of the parfyte reason of the lawe / & if any man thynke that these cases before reherced be grounded vpon the lawe of reason / then he maye referre them to the fyrste grounde of the lawe of Englande whiche is the lawe of reason / wherof is made mencion in the .v. Chepi. And if any man thynke that they be groū ded vpon the law of custome / then he may referre them to the maximes of the lawe / whiche be assigned for the thyrde grounde of the law of Englande / wherof mencion is made in the .viii. Chapitre. as before appereth.

But I praye the shewe me by what auctoritie is it proued in the la­wes of Englāde that the cases that thou haste put before in the .viii. Chapitre / and suche other whiche thou callest maximes [Page] oughte nat to be denyed / but ought to be taken as maximes / for sythe they can nat be proued by reason as thou agreest thy selfe they can nat / they may as lightly be denied as affermed onles there be some sufficient auctoritie to approue thē.

Many of the customes & maximes of the lawes of Englande be knowen by the vse and the custome of the realme so apparantly that it nedeth nat to haue any law written therof / for what nedeth it to haue any law written that the eldest sone shall enherite his father / or that all the doughters shall enherite togyther as one heyre / if there be no sone / or that the husbande shall haue the goodes & chatels of his wyfe that she hath at the tyme of the spouselles or after / or that a bastarde shall nat enheryte as heyre / or that execu­tours shall haue the disposicion of all the goodes of theyr testatoure: & if there be no executours that the ordinarie shall haue it / & that the heyre shall nat medled with the goodes of his auncestre: but any particuler custome helpe hym. The other maximes & customes of the law that be nat so openly knowen amonge the people maye be knowen partly by the lawe of reason: & [Page 27] partly by the bokes of the lawes of En­glāde called yeres of termes / & partly by diuers recordes remaynynge in the kynges courtes & in his tresorie. And specially by a boke that is called the regestre / & also by diuers statutes wherin many of the sayde customes / & maximes be ofte resited / as to a diligēt sercher wyll euidētly appere.

☞ Of the .v. grounde of the lawe of En­glande. The .x. Chapitre.

The .v. groūde of the law of Englande standeth in diuers particuler customes vsed in diuers countres townes / cyties / & lordshyppes in this realme / the whiche ꝑticuler custome because they be nat agaynste the lawe of reason / nor the law of god / though they be agaīst the sayde generall customes or maximes of the law: yet neuertheles they stande in effecte and be taken for law / but if it ryse ī question in the kynges courtes whether there be any suche ꝑticuler custome or nat it shalbe tryed by .xii. men / & nat by the Iuges / except the same particuler custome be of recorde in the same courte. Of whiche particuler customes / I haue hereafter noted [Page] some for an example.

❧Fyrste there is a custome in Kēt that is called Bauelkynde / that al the bretherne shall enherit togyther as systers at the common lawe.

❧Also there is another particuler custome / that is called burghēglisshe wher the yōger sone shall enheryte before the eldest & that custome is in Notynghame.

❧Also there is a custome in the cytie of Lōdon that fre mē there / may by theyr testamēt inrouled byqueth theyr lādes that they be seased of to whome they wyll / ex­cept to mortmayn. And if they be cytiziēs & fre men / then they may also byqueth lā ­des to mortmayne.

❧Also in gauelkynde though the father be hanged the sone shal enheryt / for theyr custome is the father to the bough / the son to the ploughe.

❧Also in some countres the wyfe shall haue the halfe of the husbandes landes in the name of her dowrye as longe as she lyueth sole.

❧Also in some coūtre the husbāde shall haue the halfe of the enheritaūce of hꝭ wyfe / though he haue no yssue by her.

❧Also in some coūtre an Infante when [Page 28] he is of the age of .xv. yere maye make a feoffement / and the feoffement good. And in some countre when he can mete an elle or clothe ∴

☞ Of the .vi. grounde of the lawe of Englande. The .xi. Chapitre.

The .vi. groūde of the lawe of Englāde standeth in dyuers statu­tes made by our soueraygne lord the kynge & his progenitours / & by the lordes spiritual & temporall / & the cōmons in di­uers parlyamentes in suche cases where the law of reason / the law of god / custo­mes / maximꝭ / ne other groūdes of the law semed nat to be sufficiēt to punysshe euyll mē / & to rewarde good mē. And I remēbre nat that I haue sene any other groūdes of the law of Englāde / but onely these that I haue before remēbred. Furthermore it appereth of that I haue sayd before that oft tymes two or thre groūdes of the lawe of Englāde must be ioyned togyther / or that the playntyfe cā open & declare his right / as it may appere by thꝭ example. If a mā entre in to another mānes lande by force: & after maketh a feffemēt for maītenaūce [Page] to defraunde the pleyntyfe frō his accion. In this case it appereth that the sayd vnlawfull entre is ꝓhibite by the law of reason / but the playntyfe shall recouer treble damages / that is by reason of the statute made in the .viii. yere of kyng Henry the .vi. the: ix. Cha. And that the dammages shalbe seased. by .xii. men that is by the custome of the realme. And so in this case .iii. groūdes of the law of Englande mayntene the playntyfes accion. And so it is in diuers other cases that nede nat to be remē ­bred now. & thus I make an ende for this tyme / to speke any ferther of the groundes of the lawe of Englande.

I thāke the for the greate payne that thou haste takē therin / neuertheles for as mo­che as it appereth that thou haste sayde before that the lerned men of the lawe of Englande pretende / to veryfie that the law of Englande wyll nothynge do / ne attempte agaynst the law of reason / nor the law of god / I pray the āswere me to some questiōs groūded vpō the law of Englāde howe as the thynketh the law may stāde with reason or cōsciēce in thē.

Put the case & I shal make answere therī as well as I can.

☞ The fyrst question of the Doctoure of the lawe of Englande and consciēce. The .xii. Chapitre.

I haue harde say / that if a man that is boūde in an obligaciō paye the money: but he taketh no acquitaunce or if he take one & it happe­neth hī to lese it / that in that case he shall be compelled by the lawes of Englande to paye the money agayne / & howe maye it be sayd then / that that law stādeth with reason or conscience / for as it is grounded vpon the law of reason that dettes ought of right to be payde / so it is groūded vpon the law of reason (as me semeth) that whē they be payde that he that payed them shulde be discharged.

Fyrste thou muste vnderstande that it is nat the law of Englāde / that if a mā that is boūde in an obligacion pay the money without acquitaunce / or if he take acquitaūce & lese it: that therfore the law determineth that he ought of right to paye the money eftesones / for that lawe were bothe agaynste reason & conscience / but trougth it is that there is a generall maxime in the lawe of Englande / that in an accion of dette sued [Page] vpon an obligacion / the defendaunt shall nat plede that he oweth nat the money / ne can in no wyse discarge hīslefe in that accion / but he haue acquitaunce or some other writtynge sufficiente in the lawe or some other thynge lyke / witnessynge that he hath payde the money / & that is ordayned by the law to auoyde a great inconuenience that els myght happen to come to many people that is to say that euery mā by a nude paroll and by a bare auerment shulde auoyde an oblygacyon / wherfore to auoyde that inconuenience the law hath ordayned that as the defendaūt is char­ged by a sufficiēt writting / that so he must be discharged by sufficiēt writtynge / or by some other thynge of as hygh auctoritye as the obligacion is. And though it may folowe thervpon that in some particuler case a man by occasion of that generall maxime may be compelled to pay the mo­ney agayne that he payde before / yet ne­uertheles no defaute can be therfore assigned in the law. For lyke as makers of la­wes take hede to suche thynges as maye oft fall / and do moste hurte amonge the people rather thē to particuler cases. So in lykewyse the generall groundes of the [Page 30] lawe of Englande / hede more what is good for many / then what is good for one singuler person onely. And because it shulde be a hurte to many / if an obligacion shulde be so lightly auoyded by worde.

Therfore the law specially preuēteth that hurte vnder suche maner as before appe­reth. And yet intendeth nat / nor commaū deth nat that the money of ryghte ought to be payde agayne / but setteth a general rule / whiche is good and necessary to all the people / & that euery man maye well kepe / without it be through his owne de­faute / & if suche defaut happen in any persone / wherby he is without remedie at the common lawe: yet he may be holpen by a Subpena / & so he maye in many other cases where consciēce serueth for hym / that were to lōge to reherce now.

But I praye the shewe me vnder what maner a mā may beholpen by conscience. And whether he shalbe holpē in the same courte or in an other.

Because it can nat be well declared where a mā shalbe holpen by conscience & where nat / but it be fyrst knowen what conscience is therfore because it perteyneth to the moste proprelye / to treate of the nature and qualitie of conscience / therfore I praye the [Page] that thou wylte make me some brief declaracion of the nature & qualitie of consciēce and then I shall answere to thy question as well as I cā.

I wyll with good wyll do as thou sayste / & to the intēt that thou mayste the better vnderstande that I shall say of conscience / I shall fyrst shewe the what sinderesis is / & then what reason is / & then what conscience is. And howe these thre differ amōge them selfe I shall somwhat touche.

☞ What sinderesis is. The .xiii. Chapitre ⸫

Sinderesis is a naturall power of the soule set ī the hyghest parte therof / mouynge & sterrynge it to good / & abhorrynge euyll. And there­fore Sinderesis neuer sinneth nor erreth. And this Sinderesis our lorde put in mā to the intent that the ordre of thynges shulde be obserued. For after saīt Deonise the wysdome of god ioyneth the begyn­nynge of the secōde thynges to the laste of the fyrste thynges / for Aungell is of a na­ture to vnderstande without serchynge of reason: & to that nature man is ioyned by [Page 31] Sinderesis / the whiche Sinderesis maye nat hollye be extincted nether in man ne yet in dampned soules. But neuerthelesse as to the vse & exersise therof / it may be let for a tyme eyther through the darkenesse of ignoraunce / or for vndiscrete delectaciō or for the hardnes of obstinacie. Fyrste by the darkenes of ygnoraunce Sinderesis may be lette that it shall nat murmure a­gaynst euyll / because he beleueth euyll to be good / as it is in heretykes / the whiche when they dye for the wickydnes of theyr Erroure beleue that they dye for the very trouthe of the fayth. And by vndiscrete delectacion / Sinderesis is somtyme so ouer layde that remorce or grudge of consciēce for the tyme can haue no place. For the hardnes of obstinacie sinderesis is also let that it may nat styrre to goodnes as it is in dampned soules that be so obstinate in euyll / that they may neuer be enclined to good. And though sinderesis may be sayd to that poynt extincte in dampned soules: yet it may nat be sayd that it is fully ex­tincte to all intentes. For they alway murmure agaynst the euyll of the payne that they suffre for synne. And so it may nat be sayde that it is vniuersally / & to all inten­tes [Page] / & to all tymes extincte / and this sinderisis is the begynnnynge of all thynges that may be lerned by speculacion or stu­dye / and mynystreth the generall groun­des & prīciples therof. And also of all thynges that are to be done by man / an exam­ple of suche thinges as many be lerned by speculaciō appereth thus: sinderesis sayth that euery hole thynge is more then any one parte of the same thyng / & that is a sure groūde that neuer fayleth. And an exā ple of thynges that are to be done / or nat to be done: is where sinderesis saythe: no euyll is to be done: but that goodnes is to be done & folowed / & euyll to be fledde and suche other. And therfore sinderesis is called by some men the lawe of reason / for it mynistreth the prynciples of the law of reson / the whiche be in euery man by nature in that he is a reasonable creature.

☞ Of reason. The .xiiii. Chapitre.

whan the fyrste mā Adā was create / he receyued of god a double eye / that is to say. An out­warde eye / wherby he might se visible thiges / & know his bodely enemyes & eschew [Page 32] them. And an inwarde eye / that is the eye of the reason / wherby he myght se his spi­rituel enemyes that fighteth agaynst his soule & beware of them. And amonge all gyftes that god gaue to man / this gifte of reasan is the moste noblest / for therby mā precelleth all beestes / & is made lyke to the dignitie of Aungelles / discernynge trouth from falsshede / & euyll frō good. Wherfore he gothe farre from that effecte that he was made to whē he taketh nat hede to the trouth: or whē he preferreth euyll before good. And therfore after Doctourꝭ reason is that power of the soule / that discerueth betwene good & euil / & betwene good & better cōparīg the one to the other: the which also sheweth vtues / loueth god / & fleeth vices. And reasō is called ryghtwyse & good for it is conformable to the wyll of god & that is the fyrste thynge & the fyrste rewle that all thynges muste be rueled by / and reason that is nat rightwyse nor strayte: but that is sayd culpable is eyther because she is deceyued with an errour that might be ouercome / or els through her pryde or slouthfulnꝭ she enquereth nat for knowe­lege of the trouth that ought to be enque­red Also reason is deuided in two parties [Page] that is to say in to the hygher parte / & in to the lower parte. The hygher parte he­deth heuenly thynges & eternall / and rea­soneth by heuenly lawes / or by heuenly resons what is to be done / and what is nat to be done / and what thynges god com­maundeth / and what he prohibiteth.

And thys hygher parte of reason hath no regarde to transitorie thynges / or temporall thynges: but that somtyme as it were by maner of councell she bryngeth forthe heuenly reasons / to ordre well tem­porall thynges. The lower parte of reson worketh moste to gouerne well temporall thynges. And she grounded her reasons moche vpon lawes of mā / & vpō reason of mā / wherby she concludeth that that is to be done / that is honest & expedient to the cōmō welth / or nat to be done for it is nat expediēt to the cōmon welth. And so that reason wherby I knowe god & suche thinges as perteyne to god / belongeth to the hygheste parte of reason. And that reason wherby I knowe creatures belongeth to the lower ꝑte of reason. And though these two partes / that is to say / the hygher ꝑte & the lower parte be won ī dede & essence / yet they differ by reason of theyr working [Page 33] & of theyr office as it is of one self eye: that somtyme loketh vpwarde / and somtyme downewarde.

☞ Of conscience. The .xv. Chapitre.

This worde consciēce / whiche in latyn is called Cōsciēcia is compowned of this preposicion: cum / that is to say in englysshe: with / and with this nowne scientia / that is to say in englysshe knowlege / & so cōsciēce is as moche to saye as knowelege of one thynge with another thynge / & conscience so takē in nothynge els / but an applienge of any sciēce or knowlege to some particuler acte of mā. And so cōscience may somtyme erre & somtyme nat erre. And of cōscience thus taken doctours make many discripcions: wherof one doctoure sayth / that consciēce is the law of our vnderstādyng. Another that conscience is an habite of the mynde discernyng betwixt good & euyll. Another that consciēce is the iugemēt of reason / iugynge on the particuler actes of man / all which sayenges agre in one effecte / that is to say that cōsciēce is an actuell applyeng of any cōnyng or knowlege to suche thyn­ges [Page] as be done: wherupō it foloweth that vpon the moste parfite knowlege of any lawe or cunnyng. And of the most parfite and moste true applyenge of the same / to any particuler acte of man / foloweth the moste ꝓfite / the most pure / & the most beste consciēce. And if therebe defaute in know­ynge of the trouthe of suche a lawe / or in the applyenge of the same to any ꝑticuler acte / than therupon foloweth an errour or defaute in conscience / as it may appere by this example. Sinderesis ministeryth a vniuersal principle y ^t neuer erreth / that is to say / that an vnlawful thīge is nat to be done. And than it myght be taken by some man that euery othe is vnlawful / bycause our lorde saythe Matth. v. Ye shall in no wyse swere. And yet he that by reason of the sayde wordes wyll holde that it is no lawfull in no case to swere / erreth in con­sciēce / for he hath nat the ꝓfite knowlege and vnderstandynge of the trouth of the sayd gospel / nor he reduceth nat y ^t sayeng of scripture / to other scriptures / in whiche it is graūted that ī some case an othe may be lawfull: and the cause why conscience maye so erre in the sayd case and in other lyke / is bycause conscience is formed of a [Page 34] certayne particuler ꝓposicion or question groūded vpon vntuersal rewles ordeyned for suche thynges as are to be done. And bycause a particuler proposicion is nat knowen of hymselfe / but must appere & beserched by a diligēt serche of reason / ther­fore in that serche & in the conscience that shulde be formed therupon may happen to be errour / & therupon it is sayd that there is errour in cōscience / whiche errour com­meth eyther bycause he dothe nat assente to that he ought to assent vnto / or els by­cause his reason wherby he dothe referre one thynge to another is disceyued. For further declaracion wherof it is to vnder­stande that errour in cōsciēce cōmeth .vii. maner of wayes. Fyrste is throughe ignorance: and that is whan a man knoweth nat what he ought to do / & what he ought nat to do: and than he ought to aske con­ceyll of them that he thynketh moste ex­perte in that science wherupon his doute ryseth. And if he can haue no conceyll / thā he muste holly cōmyt hym to god: & he of his goodnes wyll so ordre hym / that he wyll saue hym from offence. The seconde is through necligence / as whan a man is necligent to serche his owne conscience / [Page] or to enquere the trouthe of other. The thyrde is throughe pryde / as whan he wyll nat mekyn hym selfe ne beleue them that be better and wyser than he is.

The fourthe is throughe singularitie as when a man foloweth his owne wyt / and wyll nat conferme hym selfe to other / nor folowe the good common wayes of good men. The fyfth is through an in ordinat affeccion to hym selfe / wherby he maketh cōsciensce to folowe his desyre / & so he causeth her to go out of her ryght course. The sixte is throughe pusillaminite whereby some persone dredeth oft tymes suche thinges as of reasō he ought nat to drede. The seuynth is throughe perplexitie / & that is when a man beleueth hym selfe to be so set betwyxte two sinnes y ^t he thynketh it vn­possible / but that he shall fall in to the one but a man can neuer be so proplexed ī dede but through an Erour in conscience: & if hy wyll put away that errour he shalbe deliuered. Therfore I praye the that thou wylte alwayes haue a good conscience & if thou haue so / thou shalt always be mery / & if thyne owne herte reproue the nat thou shalte alwayes haue inwarde peace. The gladnes of rightewyse men is of god & in [Page 35] god / & theyr ioye is always in trouth and goodnes. There be many diuersities of cōscience / but there is none better then that / wherby a man truely knoweth hym selfe. Many men know many great & hygh cō ­nynge thynges: & yet know nat them selfe & truely he that knoweth nat hym self knoweth no thyng wel. Also he hath a good & a clene conscience / that hath puritie & clennes in his herte / trouth in his worde / and rightwysenes in his dede. And as a lighte is sette in a lanterne that all that is in the house maye ben seen therby: so almyghty god hath sette conscience in the myddes of euery resonable soule as a lyght wherby he may discerne & know what he ought to do / & what he ought nat to do. Therfore for as moche as it behoueth the to be occupyed in suche thynges as perteyne to the lawe. It is necessary that thou euer holde a pure & a clene cōsciēce / specially in suche thyngꝭ as cōcerne restitucion: for the syn̄e is nat forgyuen / but the thynge that is wrongfully taken be restored. And I con­ceyll the also that thou loue that is good / and flye that is euyll / and that thou do to another as thou woldest shulde be done to the: & that thou do no thinge to other that [Page] thou woldest nat shulde be done to the. That thou do no thyng agaynste trouth / that thou lyue peasablye with thy neygh­boure / & that thou do iustice to euery man as moche as in the is. And also that in euery generall rule of the lawe / thou do obserue & kepe equite: and if thou do thus I trust the lyght of thy lanterne / that is thy conscience shall neuer be extyneted.

But I pray the shewe me what is that equitie that thou haste spoken of byfore / & that thou woldest that I shulde kepe.

I wyll with good wyll shewe the somwhat therof.

☞What is Equytie. The .xvi. Cha.

Equytie is a ryghtwyst­nes that considereth all the ꝑticuler circūstances of the dede / the whiche also is tempered w ^t the swetnes of mercy. And suche an equytie muste alway be ob­serued in euery lawe of man / and in euery generall rule therof / & that knewe he well that sayd thus. Lawes couet to be rewled by equytie. And the wyse man sayth. Be nat ouer moche ryghtwyse: for the extre­me ryghtwysenes is extreme wronge / as who sayth: yf thou take all that the wor­des [Page 36] of the lawe gyueth the / thou shalte somtyme do agaynste the lawe. And for the playner declaracion what equytie is thou shalte vnderstāde that syth the dedes and actes of men / for whiche lawes ben ordeyned happen in diuers maners infi­nitlye. It is nat possible to make any ge­neral rule of the lawe / but that it shal fayle in some case. And therfore makers of lawes take hede to suche thynges as may often come & nat to euery particuler case / for they coulde nat though they wolde. And therfore to folowe the wordes of the lawe / were in some case both agaynst Iu­stice & the comon welth: wherfore in some cases it is necessary to leue the wordes of the lawe / & to folowe that reason and Iu­stice requyreth / & to that intent equytie is ordeyned: that is to say to tempre & mitti­gate the rygour of the lawe. And it is cal­led also by some men Epicata / the whiche is no other thyng but an excepcion of the lawe of god / or of the lawe of reason from the general rules of y ^e law of man: whan they by reason of theyr generalytie wolde in any particuler case iuge agaynste the lawe of god / or the lawe of reason / the whiche excepcion is secretly vnderstāde in [Page] euery generall rule of euery positiue lawe. And so it appereth that equyte taketh nat awaye the very ryght / but only that / that semeth to be ryght by the general wordes of the lawe: nor it is nat ordeyned agaynst the cruelnes of the lawe / for the lawe in suche case generally taken is good in hym selfe / but equytie foloweth the lawe in all particuler cases where ryght & Iustice re­quyreth / nat withstandynge that a gene­rall rule of the law be to the cōtrary: wherfore it appereth y ^t if any lawe were made by man without any suche excepcion ex­pressed or implyed it were manifestly vn­resonable and were nat to be suffered / for such cases myght come that he that wolde obserue that lawe shulde breke bothe the lawe of god & the lawe of reason. As if a man make a vowe that he wyl neuer eate whyte meate / & after it happeneth hym to come there where he can gette none other meate. In this case it behouyth hym to breke his auowe / for that particuler case is excepted secretely frome his generall auowe by this equytie or epykay / as it is sayd byfore. Also if a lawe were made in a cytie that no man vnder the payne of deth shulde open the gates of the cytie before [Page 37] the sonne rysynge: yet if the cytezens by­fore that houre fleynge frome theyr enne­myes come to the gates of the cytie / & one for sauynge of the cytyzens openeth the gates byfore the houre appoynted by the lawe / yet he offēdeth nat the lawe / for that case is excepted from the sayde generall lawe by equytie / as is sayd byfore: and so it appereth that equytie rather foloweth the intent of the lawe / then the wordes of the lawe. And I suppose that there be in lykewyse some lyke equyties grounded vpon the generall rules of the lawe of the realme.

ye yerely wherof one is this. There is a general ꝓhybicion in the lawes of Englande: that it shall nat be lawful to no man to entre ī to the freholde of another w ^t out auctoritie of the owner or of the lawe: but yet it is excepted from the sayd ꝓhybicion by the lawe of reason: that if a man dryue beastes by the hyghe waye & the beastes haphen to escape in to the corne of his neyghboure. And he to brynge out his beastes that they shulde do no hurte gothe in to the groūde & fetteth out the beastes: there he shall iustifye that entre in to the grounde by the lawe. Also nat withstandyng the statute of Edwarde [Page] the thyrde made the. 23. yere of his reygne / wherby it is ordeyned that no man vpon payne of imprisonement shulde gyue any almesse to any valiant begger / that is wel able to laboure: yet if a man mete with suche a valiāt begger in so colde a wether & so lyght apparell / that if he haue no clo­thes he shall ī at be able to come to any towne to haue succoure / but is lykely ra­ther to dye by the waye: & he therfore gy­ueth hym apparell to saue his lyfe he shal be excused of the sayde statute by suche an excepcion of the lawe of reason as I haue spoken of.

I knowe well that as thou sayest he shalbe exceptyd of the sayde statute by cōscience / and ouer that / that he shall haue great rewarde of god / for his good dede / but I wold wytte whether the partie shalbe also discharged in the comon lawe by suche an excepcion of the lawe of reason or nat / for though ignoraūce inuincible of a statute excuse the partie agaynst god / yet as I haue herde it excusyth nat in the lawes of the realme / ne yet in the chauncerye as some say all thoughe the case be so that the partie to whome the forfeyture is gyuen may nat with cōscience leue it.

verely by thy question [Page 38] thou haste put me in a great doute / wher­fore I praye the gyue me a respite therin to make the an answere / but as I suppose for the tyme howe be it I wyll nat fully afferme it to be as I say / but it shulde seme that he shulde well plede it for his dischar­ge at the comon lawe / bycause it shalbe taken that it was the intēt of the makers of the statute to excepte suche cases. And the Iuges maye many tymes iuge after the mynde of the makers as farre as the letter may suffre & so it semyth they maye in this case. And diuers other excepcions there be also from other generall groūdes of the law of the realme by such equyties / as thou hast remembred byfore that were to longe to reherce nowe.

But yet I pray the shewe me shortly somwhat more of thy mynde vnder what maner a man may be holpen ī this realme by such equytie.

I wyll with good wyll shewe the somewhat therin.

¶In what maner a man shalbe hol­pen by equyties in the lawes of Englāde. The .xvii. Chapitre.

Fyrst it is to be vnderstande there be in many cases diuers excep­cions from the generall groūdes of the lawe of the realme by other reasona­ble groundes of the same lawe / wherby a man shalbe holpen in the comon lawe / as it is of this generall groūde that it is nat lawful for no man to entre vpon a discent / yet for the reasonablenes of the lawe ex­cepteth from that groūde an infante that hath ryght & hath suffered suche a discent / & hym also that maketh cōtinuell clayme and suffereth them to entre / natwitstan­dynge the dyscent. And of that excepcion they shall haue auantage in the comon lawe: & so it is lykewyse of diuers statutes as of the statute wherby it is ꝓhybit / that certayne particuler tenauntes shall do no waste: yet if a lease for terme of yeres be made to an infante that is within yeres of discrecion / as of y ^e age of .v. or .vi. yeres and a stranger do waste / in this case this infante shal nat be punysshed for the wast / for he is excepted & excused by the lawe of reason. And a woman couerte to whome suche a lease is made after the couerture shalbe also discharged of waste after her husbandes deth by a reasonable maxime [Page 39] and custome of the realme. And also for reparaciōs to be made vpon y ^e same groūde: it is lawfull for suche particuler tenantes to cute downe trees vpon the same groūde to make reparacions. But the cause there as I suppose is for that the mynde of the makers of the sayde estatute shalbe taken to be that / that case shulde be excepted. And in all these cases the parties shalbe holpen in the same courte & by the comon lawe. And thus it appereth that somtyme a man may be excepted fro the rigoure of a maxine of the lawe by another maxime of the lawe. And somtyme fro the rigoure of a statute by the lawe of reason: and som tyme by the intent of the makers of the statute: but yet it is to be vnderstande that moste cōmonly where any thynge is ex­cepted fro the generall customes or maxi­mes of the lawes of the realme. By the lawe of reason the partie must haue his remedie by a wryt that is called Sub pena. yf a Subpena lye in the case: but where a Subpena lyeth / and where nat: it is nat our intent to treate of at this tyme. And in some case there is no remedye for suche an equytie by way of compulsion / but all the remedye therin muste be cōmitted to [Page] the cōscience of the partie.

but in case where a Sub pena lyeth to whom shal it be directed: whether to the Iuge or to the partie.

It shall neuer be directed to the Iuge / but to the ꝑtie plein­tyfe or to his attorney & therupon an in­iūction cōmaundynge them by the same vnder a certayne payne therin to be cōtey­ned that he ꝓcede no ferther at the comon lawe / tyll it be determined in the kynges chauncerye: whether the pleyntyfe hathe tytle in conscience to recouer or nat. And whan the pleyntife by reason of suche an iniūction seasseth to aske any ferther pro­cesse: the Iuges wyll in lykewyse seasse to make any ferther ꝓcesse in that behalfe.

Is there any mencion made in the lawes of Englande of any suche e­quyties.

Of this terme equytie to that intent that is spoken of here there is no mencion made in the lawes of En­glande / but of an equytie dyriuyed vpon certayne statutes mencion is made many tymes & often in the lawe of Englande. But that equytie is all of another effecte then this is / but of the effecte of this equytie that we nowe speke of mēcion is made many tymes / for it is ofte tymes argued [Page 40] in the lawe of Englande where a Sub pena lyeth & where nat: and dayly bylles be made by men lernyd in the lawe of the realme to haue Sub penas. And it is nat prohybite by the lawe / but that they may well do it so that they make them nat: but in case where they ought to be made & nat for vexacion of the partie / but accordynge to the trouth of the mater. And the lawe wyl in many cases that there shalbe suche remedye in the chauncerye vpon diuers thynges groundyd vpon suche equyties / and than the lorde Chanceller must ordre his consciēce after the rules & groūdes of the lawe of the realme / in so moche that it had nat ben moche inconuenient to haue assigned suche remedye in the chauncerye vpon suche equyties for the .vii. groūde of the lawe of Englande / but for as moche as no recorde remaynethe in the kynges courtes of no suche bylle ne of the wrytte of Sub pena or Iniunction that is suyd thervpon: therfore it is nat sette as for a speciall groūde of the law / but as a thinge that is suffred by the lawe.

Then sythe the parties oughte of ryght in many cases to be holpen in the chauncerye vpon suche equyties. It semeth that if it were [Page] ordeyned by stutute / that there shulde be no remedye vpon suche equyties in the chauncerye nor in none other place / but that euery mater shulde be orderyd onely by the rules & groūdes of the comon lawe: that that statute were agaynst ryght and cōscience.

I thynke the same / but I suppose there is no suche statute.

There is a statute of that effecte as I haue herde saye / wherin I wolde gladly here thy oppinion.

Shewe me that statute & I shall w ^t good wyll saye as me thynketh therin.

¶Whether the statute herafter reherced by the doctoure be agaynste cōsciēce or nat. The .xviii. Chapitre.

There is a statute made in the .iiii. yere of kynge Henry the fourth the .xxii. chapitre / wherby it is enacted that iugementes gyuen in the kynges courtes / shall nat be examined in the chauncerye / parliamēt / nor els where / by whiche statute it apperyth that if any iugement be gyuen in the kynges courtes agaynst an equytie or agaynst any mater of conscience / that there can be had no re­medye by that equytie / for the iugement [Page 41] can nat be reformed w ^tout examinacion / and the examinacion is be the sayd statute prohibit: wherfore it semyth that the sayd statute is agaynst cōscience / what is thyn oppinion therin.

If iugemētes gyuen in the kynges courtes shuld be exa­mined in the chauncerye byfore the kyngꝭ cōceyl or in any other place / the plaintifes or demandauntes shulde seldome come to the effecte of theyr suyte / ne the lawe shuld neuer haue ende. And therfore to eschewe that incōuenice y ^t statute was made. And though perauēture by reason of that sta­tute / some singuler persone maye happen to haue losse. Neuerthelesse the sayde sta­tute is very necessarye to eschewe many great vexacions and iniust expences that wolde els come to many plaintifes that haue ryght wysely recouered in the kyngꝭ courtes. And it is moche more ꝓuided for in the lawe of Englande that hurte nor damages shulde nat come to many than onelye to one. And also the sayde statute doth nat ꝓhybite equyte / but it ꝓhybiteth only the examinacion of the iugement for the eschewynge of the incōueniēce byfore reherced. And so it semethe that the sayde statute standeth with good conscience.

[Page]And in many other cases where a man dothe wronge / yet he shall nat be cōpellyd by waye of compulsion to reforme it / for many tymes it muste be lefte to the con­science of the partie / whether he wyll re­dresse it or nat. And in suche case he is in cōsciēce as well bounde to redresse it if he wyll saue his soule / as he were if he werre compellable therto by the lawe as it may appere in dyuers cases that maye be put vpon the same grounde.

I pray the put some of those cases for an ex­ample.

If the defendant wage his lawe in an accion of dette broughte vpon a true dette the pleintyfe hathe no meanes to come to his dette by waye of cōpulsion / neyther by Subpena nor other wyse / & yet the defendaūt is bounde in consciēce to pay hym. Also if the grande Iury in attaynt afferme a false verdit gyuen by the pety Iurye there is no further remedy but the cōsciēce of the partie. Also where there can be had no sufficiēt prouffe / there can be no remedye in the Chauncerye / no more than there maye be in the spirituall courte. And bycause thou haste gyuen an occasion to speke of conscience / I wolde gladly here thy oppynion where cōsciēce [Page 42] shalbe ruled after the lawe / and where the lawe shalbe ruled after consciēce.

And of y ^t mater I wolde lykewyse gladly here thy oppinion / specially in cases groū ­dyd vpon the lawes of Enlgande / for I haue nat herde but lytell therof in tyme past / but byfore thou put any cases therof: I wolde that thou woldest shewe me how those two questiōs after thy oppinion are to be vnderstande.

¶Of what lawe this question is to be vnderstande: that is to say / where cōsciēce shalbe ruled after the lawe. The .xix. Chapitre.

The lawe wherof mencion is made in this question: that is to say where conscience shalbe ruled by the lawe / is nat as me semeth to be vnder­stande only of the lawe of reason / & of the lawe of god / but also of the lawe of man that is nat contrary to the lawe of reason nor the lawe of god: but that it is supper­added vnto them for the better orderynge of the comon welth / for suche a lawe of man is alwayes to be sette as a rule in cō ­science: so that it is nat lawful for no man to go fro it on the one syde ne on the other / [Page] for suche a lawe of man hath nat only the strength of mannes lawe / but also of the lawe of reason / or of the law of god / wher­of it is dyriuied / for lawes made by man whiche haue receyued of god power to make lawes be made by god. And therfore cōsciēce muste be ordered by that lawe / as it muste be vpon the lawe of god / & vpon the lawe of reason. And ferthermore that lawe wherof mēcion is made in the latter ende of the chapitre next byfore: that is to saye in that question wherin it is asked where the lawe is to be lefte & forsaken for conscience / is nat to be vnderstande of the lawe of reason nor of the lawe of god: for tho two lawes maye nat be lefte / nor it is nat to be vnderstande of the lawe of man that is made in particuler cases / & that is consonant to the lawe of reason / & to the lawe of god / & that yet that lawe shuld be lefte for cōscience: for of suche a lawe made by man cōsciēce muste be ruled / as is sayd byfore. Nor it is nat to be vndepstāde of a lawe made by man cōmaundynge or pro­hybitynge any thynge to be done that is agaynste the lawe of reason or the lawe of god. For if any lawe made by man / bynde any person to any thyng that is agaynste [Page 43] the sayd lawes / it is no lawe / but a corrupcion & a manifeste errour. Therfore after them that be lerned in the lawes of En­glande / the sayde question: that is to saye where the lawe is to be lefte for cōscience and where nat / is to be vnderstande in di­uers maners & after diuers rules / as here after shall somwhat be touched.

¶Fyrste many vnlerned persones byleue that it is lawfull for them to do w ^t good conscience / all thynges whiche if they do them / they shall nat be punysshed therfore by the lawe / though the law doth nat warraunt them to do that they do / but onely when it is done doth nat for some reasonable cōsideracion punysshe hym that dothe it / but leuyth it onely to his cōscience. And therfore many persones do oft tymes that they shulde nat do / & kepe as theyr owne that / that in cōsciēce tey ought to restore / wherof there is in the lawes of Englande this case. ¶If two men haue a woode ioyntly / & the one of them selleth y ^e wood & kepeth all the mony hollye to hym selfe. In this case his felowe shall haue no re­medye agaynste hym by the lawe / for as they whan they toke the woode ioyntlye put eche other in truste / & were contented [Page] to occupy togyther: so the lawe sufferyth them to ordre the profittes therof accor­dynge to the truste that eche of them put other in. And yet if one toke all the pro­fittes / he is bounde in cōscience to restore the halfe to his felowe: for as the lawe gy­ueth hym ryght onlye to the halfe lande / so it gyueth hym ryght only in cōsciēce to the halfe ꝓfittes. And yet neuertheles it can nat be sayd in that case / that the lawe is agaynst cōscience / for the lawe neyther wyllyth ne cōmaundyth that one shulde take all the ꝓfittes / but leuyth it to theyr cōscience: so that no defaute can be founde in the lawe / but in hym that taketh al the profittes to hym selfe may be assigned de­faute / whiche is bounde in consciēce to re­forme if he wyll saue his soule / though he can nat be compelled therto by the lawe. And therfore in this case & other lyke / that oppinion which some haue / that they may do with cōscience all that they shal nat be punysshed: for by the lawe if they do it / is to be lefte for cōsciēce / but the lawe is nat to be lefte for conscience.

❧ Here foloweth dyuers cases where conscience is to be orderyd after the lawe. The .xx. Chapitre.

The eldest sone shall haue & enioy his father landes at the comon lawe in conscience / as he shall in the lawe. And in Burghenglysshe the yonger sone shall enioy the inheritaunce / & that in conscience. And in Gauelkynde all the sōnes shall inherite the lande togyther as [Page 46] doughters at the comon lawe and that in cōsciēce. And there can be none other cau­se assigned why cōscience in the fyrste case is with the eldest brother / & in the seconde with the yonger brother / and ī the thyrde case with all the bretherne. But bycause the lawe of Englande by reason of diuers customes dothe somtyme gyue the lande hollye to the eldest sone / somtyme to the yongest / and somtyme to all.

¶Also if a man of his mere mocion make a feffemēt of two acres of lande lyenge in two seuerall shyres / & maketh lyuerey of season in the one acre in the name of both In this case the feffe hath ryght but only to that acre wherof lyuerey of season was made / bycause he hath no tytle by y ^e law: but if bothe acres had ben in one shyre he had had good ryght to both. And in these cases the diuersitie of the lawe makyth the diuersitie of conscience.

¶Also if a man of his mere mocion make a feffement of a maner & sayth nat to haue & to holde. &c̄. with the appurtynances / in that case the feffe hath right to y ^e demesne landes & to the rentes / if there be atturna­ment & to the comon parteynynge to the maner / but he hath nother ryght to the [Page] aduowsons appendaunt if any be / nor to the vylleins regardant: but if this terme with thapurtynaūces had ben in the dede / the feffe had had ryght in cōscience aswell to the aduowsons & vylleins / as to the re­sidue of the maner: but if the kynge of his mere mocion gyue a maner with the ap­purtynaunces / yet the donee hath neyther ryght in lawe nor cōscience to the aduow­sons nor vylleins. And the diuersitie of the lawe in these cases maketh the diuer­sitie of conscience.

¶Also if a man make a lease for terme of yeres yeldynge to hym & to his heyres a certayne rent vpon condicion that if the rent be behynde by .xl. dayes. &c̄. that then it shalbe lawful to the lessour & his heyres to rentre. And after the rent is behynde the lessour askyth the rent accordynge to the lawe & it is nat payd / the lessour dyeth his heyre entreth. In this case his entre is lawfull bothe in lawe and conscience: but if the lessoure had dyed byfore he had de­maūdyd the rent / and his heyre demaūde the rent / & bycause it is nat payde he ren­treth / in that case his rentre is nat lawfull nother in lawe nor in conscience.

¶Also if the tenaunt in dower sowe her [Page 47] lande and dye byfore her corne be rype / that corne in conscience belongeth to her executours / & nat to hym in the reuercion / but otherwyse it is in cōscience of grasse & frutes. And the diuersitie of the lawe ma­kyth ther also the diuersitie in cōscience.

¶Also if a man seased of landes in his de­mesne as of fee / byquethyth the same by his last wyll to another and to his heyres and dyeth. In thꝭ case the heyre nat with stādynge the wyll hath ryght to the lande in conscience. And the reason is bycause the lawe iugeth that wyll to be voyde: and as it is voyde in the lawe / so it is voyde in conscience. ¶Also if a man graunte a rente for terme of lyfe and make a lease of lande to the same graūte for terme of lyfe / and the tenaunte alyeneth both in fee. In this case he in the reuercion hath good ty­tle to the lande / both ī lawe & cōsciēce & nat to the rent. And the reason is bycause the lande by that alienacion is forfeyt by the lawe to hym ī the reuercion & nat y ^e rent.

¶The fyrste question of the student. The .xxi. Chapitre.

If an infaunt that is of the age of .xx. yere and hath reason and wysdome to gouerne hymselfe selleth his lande & with the money therof byeth other lande of greater value then the fyrst was & taketh the ꝓfittes therof / whether maye that infaunte aske his fyrste lande agayne ī cōsciēce / as he may by the lawe.

What thynkest thou in that question.

Me semeth that for as moche as the lawe of Englāde in this article is grounded vpon a presumpcion / that is to saye that infauntes commonly afore they be of the age of .xxi. yeres be nat able to gouerne them selfe / that yet for as moche as that presumpcion fayleth ī this infaūte that he may nat in this case with conscience aske the lande agayne that he hath solde to his great auauntage as by­fore appereth.

Is nat this sale of the infaunte and the feffemēt made ther­vpon if any were voydable in the lawe.

Yes verylye.

And if the [Page 49] feffe haue no ryght by the bargayne / nor by the feffement made therupon: wherby shulde he then haue ryght therto as thou thynkest.

By conscience as me thynketh for y ^e reason that I haue made byfore.

And vpon what lawe shulde that cōsciēce be groūded that thou spekest of / for it can nat be groūded by the lawe of the realme as thou haste sayd thy selfe. And me thynketh that it can nat be grounded vpon the lawe of god / nor vpon the lawe of reason: for feffemētes nor con­tractes be nat grounded vpon neyther of tho lawes / but vpon the lawe of man.

After the lawe of propriete was ordayned / the people myght nat conueni­ently lyue togyther without contractes / & therfore it semeth y ^t cōtractꝭ be groūded vpon the lawe of reason / or at the leste vpō the lawe that is called Ius gentium.

Though contractes be groūded vpon that law that is called Ius gentiū / bycause they be so necessarye & so generall amonge all people / yet that proueth nat that cōtractes be groūded vpon the lawe of reason: for thoughe that lawe called Ius gentium be moche necessarye for the people yet it may be chaunged. And ther­fore [Page] if it were ordayned by statute y ^t there shulde be no sale of lande / ne no cōtracte of goodes. And if any were that it shulde be voyde / so that euery man shuld cōtynewe styll seased of his landes & possessed of his goodes / the statute were good. And then if a man agaynst y ^t statute solde his lande for a sūme of money / yet the seller myghte lawfully retayne his lande accordynge to the statute. And then he were boūde to no more / but to repaye the money that he re­ceyued with resonable expēces in that be­halfe / and so ī lykewyse me thynketh that in this case the infant may with good cō ­sciēce reentre in to his fyrst lande / bycause the cōtracte after the maximes of the law of the realme is voyde / for as I haue herde the maximes of the lawe be of as greate strengthe in the lawe as statutes. And so me thynketh that in this case the infaunt is boūde to no more / but only to repay the money to hym that he solde his lāde vnto / with suche reasonable costes & charges as he hath sustayned by reason of the same. But if a man sell his lande by a sufficiēt & lawful cōtracte thoughe there lacketh ly­uerye of season or such other solempnities of the lawe: yet the seller is bounde in con­science [Page 50] to performe the contracte / but in this case the contracte is insufficient / & so me thynketh great diuersitie bytwyxt the cases.

For this tyme I holde me contented with thy opoinion.

¶The seconde question of the stu­dent. The .xxii. Chapitre.

If a man that hath landes for terme of lyfe be impanelled vpon an inquest / & therupon leseth yssues & dyeth / where maye tho yssues be leuied vpon hym in the reuercion in cōscience as they may be by the lawe.

If they maye be leuied by the lawe / what is the cause why thou doost doute whether they may be leuied by conscience.

For there is a maxime in the lawes of En­glande / that where two tytles ronne to­gyther / the eldeste tytle shalbe preferred. And in this case the tytle of hym in the re­uercion is byfore the tytle of the forfetour of the yssues. And therfore I doute som­what whether they maye be lawfully le­uyed.

By that reason it symeth thou arte in doute what the lawe is in thꝭ case / but that must necessarely be knowen / for els it where in vayne to argue what [Page] conscience wyll therin.

it is cer­tayne that the lawe is suche / & so it is lyke wyse if the husbande forfet yssues & dye / tho yssues shalbe leuyed on the landes of the wyfe.

And if the lawe be such it symeth that cōscience is so in lykewyse / forsyth it is the lawe that for execucion of Iustice euery man shalbe īpanelled when nede requyreth it semeth reasonable / that if he wyll nat appere that he shulde haue some punysshemēt for his nat apperaūce: for els the lawe shulde be clerely frustrate in that poynt. And that payne as I haue herde is that he shal lese yssues to y ^e kyng for his nat apperaūce / wherfore it semeth nat inconueniēt nor agaynste conscience though the lawe be that tho yssues shalbe leuyed of hym ī the reuercion / for that cō ­dicion was secretlye vnderstande in the lawe to passe with the lease whā the lease was made. And therfore it is for y ^e lessour to beware and to preuent that daunger at the makynge of the lease / or els it shalbe aiuged his owne defaute. And than this pertyculer maxyme wherby suche yssues shall be leuyed vpon hym in the reuercyon is a pertyculer excepcyon in the lawe of Englande frō that generall maxyme that [Page 51] thou haste remēbred byfore: that is to say that where two tytles ronne togyther / that the eldest tytle shalbe preferred / & so in this case that generall maxime in this poynt shall holde no place / nother in lawe nor in cōscience / for by this perticuler ma­xime the strengthe of that generall maxi­me is restreyned to euery intent / that is to saye / as well in lawe as in cōscience.

¶The thyrde question of the student. The .xxiii. Chapitre.

If a tenant for terme of lyfe / or for terme of yeres do waste wherby they be boūde by the lawe to yelde to hym in the reuercion treble damagꝭ. And shall also forfet the place wasted / whether is he also bounde in conscience to pay tho damages / & to restore the place wasted im­mediatly after the waste done / as he is the single damages / or that he is nat bounde therto tyll the treble damages & the place wasted be recouered in the kynges courte.

Byfore iugemēt gyuen of the treble damagꝭ and of the place wasted he is nat bounde in conscience to pay them. For it is vncertayne what he shulde pay / but it suffiseth that he be redy tyl iugemēt [Page] be gyuen to yelde damages accordynge to the value of the waste / but after the iuge­ment gyuen / he is bounden in cōscience to yelde the treble damages / & also the place wasted. And the same lawe is in all statutꝭ penall / that is to saye / y ^t no man is boūde in conscience to pay the penaltye tyll it be recouered by the lawe.

Whether maye he that hath offended agaynst suche a statute penal defende the accion & hyndre the iugement to the intent he wolde nat paye the penaltie / but onely the single da­magꝭ.

If the accion be taken ryghtwysely accordyng to the statute and vpon a iuste cause / the defendant maye in no wyse defende the accion / onles he haue a true dylatorie mater to plede: whiche shuld be hurtful to hym if he pleded it nat / though he be nat bounde to paye the pe­naltie tyll it be recouered.

¶The fourth question of the stu­dēt. The .xxiiii. chapitre.

If a man infeffe another in certayne lande vpon condicion that if he infeffe any other: that it shalbe lawfull for the feffour and his heyres to reentre &c̄. whether is this cōdicion good [Page 52] in cōsciēce though it be voyde in the lawe

What is the cause why this condicion is voyde in the lawe.

The cause is this / by the lawe it is incidēt to euery state of fee simple / that he that hath that estate may lawfully by the lawe & by the gyfte of the feffoure make a feffe­ment therof. And than whan the feffoure restrayneth hym after that he shall make no feffement to no man agaynst his owne former graunt / & also agaynste the puritie of the state of a fee simple / the lawe iugeth the condicion to be voyde / but if the con­dicion had ben that he shulde nat haue in­feffed suche a man / or such a man that condicion had ben good / for yet he myght in­feffe other.

though the sayde cōdicion be agaynst the effecte of the stan­de of a fee simple & also agaynste the lawe. Neuerthelesse it is nat agaynst the intente that the parties agreed vpon and that at the tyme of the lyuerey. And for as moche as the intent of the partie was that if the feffe infeffed any man of the lande / that the the feffour shuld entre / & to that intent the feffe toke the estate & after breke the intent it semeth that the lande in cōscience shulde returne to the feffour.

the intent [Page] of the parties in the lawes of Englande is voyde in many cases / that is to say if it be nat ordered accordyng to the lawe. As if a man of his mere mocion without any re­compence intendynge to gyue landes to another & to his heyres make a dede vnto hym / wherby he gyueth hym the landes to haue & to holde to hym for euer intendyng that by that worde (for euer) the feffe shuld haue the lande to hym & to his heyres / in this case his intent is voyde / and the other shal haue the lande onely for terme of lyfe. Also if a man gyue landes to another & to his heyres for terme of .xx. yeres intēdyng that if the lessee dye within the terme / that than his heyres shulde enioye the lande durynge the terme. In this case his intēt is voyde / for by the lawe of the realme all chatellys reall and personall shall go to y ^e executoures / and nat to the heyre. Also if a man gyue landes to a man & to his wyfe / and to the thyrde person intendynge that euery of them shulde take the thyrde parte of the lande as thre common persons shuld his intent is voyde / for the husbande and the wyfe as one persone in the lawe shall take onlye the one halfe & the thyrde per­son y ^e other half / but these cases be alway [Page 53] to be vnderstande where the sayde estates be made without ani recompence And for as moche as in this principall case / the intent of the feoffour is groundid agaynst the lawe: & that there is no recompence appoynted for the feffement: me thynketh y ^t the feffour hath neyther right to the lan­de by lawe nor conscience / for if he shulde haue it by conscience / that cōscience shulde be grounded vpon the lawe of reason & y ^t it can nat / for condicions be nat groūded vpō the lawe of reason / but vpō the maxymes & custome of the realme. And therfo­re it might be ordeyned by statute / that al condiciōs made vpō lande shuld be voyd. And whā a condiciō is voyde by the maximes of the lawe / it is as fully voyde to euery intent as if it were made voyde by statute / & so me thynketh that in this case the feffour hath no righte to the lande in law nor in conscience.

I am content thy opinion stande tyll we shall haue hereafter a better leasure to speke ferther in this matter.

☞The .v. question of the Student. The .xxv. Chapitre.

If a fine with proclamaciō be leuyed accordynge to the statute & no clayme made within .v. yeres. &c̄. whether is the righte of a straunger extincted thereby in conscience / as it is in the lawe.

Vpon what conside­racion was that statute made.

that the righte of landes and tenementes myghte be the more certaynly knowen and nat to be so vncertayne as they were byfore that statute.

And whan any lawe of man is made for a cō ­mon welthe / or for a good peace and quietnes of the people / or for any inconuenien­ce or hurte to be saued from them / that lawe is good thoughe percase it extincte the right of a straunger and must be kept in the courte of conscience for as it is said before in the .iiii. chapitre. By lawes rightewysely made by man: it appereth who hath righte to the landes and goo­des: for what so euer a man hathe by su­che a lawe he hath it rightewisely.

And what so euer he holdeth agaynste suche a lawe he holdeth vnrightwisely. And ferthermore as it is sayde there all lawes made by man / whiche be nat contrarye to the lawe of god muste be obser­ued [Page 54] and kepte / and that in conscience.

And he that dispiseth them dispiseth god: and that resisteth them resisteth god / also it is to be vnderstande that possessions / and the righte thereof be subiecte to the lawes / so that they therefore with a cause reasonable maye be translated and altered from one man to another by the acte of the lawe. And of this consideracion that lawe is grounded that by a contrac­te made in feyres and markettes the propretye is altered excepte the propretye be to the kynge / so that the byer paye tolle / or do suche other thynges as is a custo­med there to be done vpon suche contrac­tes / and that the byer knoweth nat the former propretye. And in the lawe Ciuile there is a lyke lawe that if a man haue another mannes good with a title .iii. yere thynkynge that he hath righte to it he hath the very righte vnto the thynge: and that was made for a lawe to the in­tente that the propretye and ryghte of thynges shulde nat be vncertayne / & that variaunce & stryfe shulde nat be amonge the people. And for as moche as the sayd statute was ordayned to gyue a certeīte of [Page] title in the landes & tenemētes comprised in the fyne / It semeth that that fyne extīcted the title of all other / as well in consciē ce as it dothe in the lawe. And sythe I haue answered to thy question I praye the let me knowe thy mynde in one question concernynge tayled landes & than I will trouble the no ferther at this tyme.

☞ A questiō made by the Doctour / how certayne recoueries that be vsed ī the kynges courtes to defete tayled lande may stande with conscience. The .xxvi. Chapitre.

I haue herde say that whā a man that is seased of lādes in the tayle selleth the lande. That it is cō monly vsed that he that byeth the lande shal for his suertye / & for the auoydyng of the tayle in that behalfe / cause some of his frendes to recouer the sayde landes agaīst the sayd tenaunt in tayle: whiche recoue­rye as I haue ben credably enformed shal be had in this maner / the demaundaūtes shall suppose in theyr writte & declaracion that the tenāt hath no entre / but by suche [Page 55] a straunger as the byer shall liste to name & appoynte / where in dede the demaun­dauntes neuer had possession therof / nor yet the sayde straunger. And thereupō the sayde tenaunte in tayle shall appere in the court & by couē & by alient of the parties / shall vouche to warrante one that he knoweth well hath nothynge to yelde in va­lue. And that vouche shall appere & the demaundauntes shall declare agaynst hym / & therupon he shall take a day to enperle ī the same terme: & at that day by assent & couen of the partyes / he shall make defaulte vpō whiche default bycause it is a default in despite of the court / the demaundauntꝭ shall haue iugemēt to recouer agaynst the tenaunt in tayle / & he ouer in value agaīst the vouche & this iugement & recouery in value / is taken for a barre of the tayle for euer / howe may it therfore be taken that that lawe standeth with consciēce that as it semeth aloweth & fauoureth suche fay­ned recoueries.

If the tenāt in tayle sel the lāde for a certayn sūme of money as is agreed betwixte them at suche a pryce as is cōmonly vsed of other landes / & for the suertye of the sale suffereth suche a recouerye as is aforesayd / what is the [Page] cause that moueth the to doubte whether the sayd contracte or the recouery made thereupon: for the suertye of the byer that hath truely payd his money for the same shuld stande with conscience.

Two thynges cause me to doute therein / one is for that y ^t aft our lorde had gyuen the lande of byheste to Abrahan & to his sede / that is to saye to his chyldren in pos­session alwaye to continue / he sayde to Moyses as it appereth Leuiticē. xxv. the lande shall nat be solde for euer / for it is myne. And than our lorde assigned a cer­tayne maner howe the lande might be re­demed in the yere of Iubilie if it were sold byfore: & for as moche as our lorde wolde that the lande so gyuen to Abraham & his chyldren shuld nat be solde for euer / it se­meth y ^t he dothe agaynst the ensample of god y ^t alieneth or selleth the lāde that is gyuē to him & to his chyldrē as lādes in­tayled be gyuen. Another cause is this: it appereth by the cōmaūdemēt of god that thou shalt nat coueyt the house of thy neyghboure. &c̄. And if the cōcupiscēce be ꝓhibited more strōger the vnlawfull takinge & withholding therof is prohibit / & for as moche as tayled lande whā the auncestre [Page 56] is deed is a thynge that of righte is belongynge to his heyre / for that he is heyre accordynge to the gyfte / how may that lāde with right or consciēce be holden frō hym

Natwithstandynge that pro­hibicion of almighti god: wherby the lāde that was gyuen to Abraham & to his seed might nat be aliened for euer / yet landes within walled townes might lawfully be aliened for euer / excepte the landes of the leuites as it appereth in the sayde chapi­tre of Leuitici .xxv. And so it appereth y ^t the sayd prohibicion was nat generall for euery place: & that amonge the Iewes.

And it appereth also that it was gyuen onely for Abraham & his chyldren / & so it was nat generall to all people. And it ap­pereth also that it extended nat but onely to the lande of promission / as it appereth by the wordes of the sayd chapitre / where it is sayde thus all the region of your possession shalbe solde vnder the condicion of redemynge / whereby appereth that lan­des in other countres be nat bounde to y ^t condicion / and as they be nat bounde to y ^t condicion: by the same reason / it folo­weth that they be nat bounde to the same succession. Therefore the sayde lawe [Page] that wyll that the lande gyuen to Abrahā & to his seed shall nat be solde for euer / bindeth no lande out of the lande of promis­sion / & some men will say that sythen the passion of our lord was promulgate & knowen it byndeth nat there. And to the secō de reason whiche is grounded vpon the cō maūdemēt of god: It must nedes be graū ted that it is nat lawfully to any man vn­lawfully to couere the howse of his neyghbour / & that than more stronger he maye nat vnlawfully take it from hym: but thā it remayneth for the yet to proue / howe in this case this tayled lande that is solde by his auncestre / & whereof a recouery is had of recorde in the kynges courte maye be sayd the lande of the heyres.

that may be proued by the law of the real me / that is to say by the statute of westmī ster the seconde the fyrste chapitre / where it is sayd thus. The wyll of the gyuer ex­pressely contayned in the dede of his gyfte shalbe from hensforth obserued / so y ^t they to whome the tenementes be so gyuē shal nat haue power to alyen / but that the landes after theyr deth shall remayn to theyr issue or retourne to the donour if the issue fayle / by the whiche statute it appereth [Page 57] euidently that though they to whome the tenementes were so gyuen aliened them awaye / that yet neuerthelesse they in law & conscience by reason of the sayde statute ought to remayn to the heyres according to the gyfte / for it is holden commonly by all Doctoures that the cōmaundementes & rewles of the lawe of mā or of a positiue lawe that is lawfully made / bynde all y ^t be subiectes to that lawe accordyng to y ^e mynde of the maker & that in the court of conscience.

Doest thou thīke that if a man offende agaynst a statute penall that he offendeth in conscience admit that he do it nat of a wilfull disobedience for that he wyll nat obey the law / for if he do it of disobedience I thynke he offēdeth

If it be but onely a statute y ^t is called Populare it byndeth nat in conscience to the payment of the penalitie / til it be recouered by the lawe. And than it dothe bynde in conscience / but if a statute be made principally to remedy the hurte of the partye / & for that hurte it gyueth a penaltye to the partye in that case the of­fendour of the statute is bounde immediatly to restore the damages to the value of the hurt as it is vpon the statute of waste / [Page] but the penaltye aboue the hurte he is nat bounde to pay tyll iugement be gyuen as it is sayd byfore / but statutes by y ^e which it is assigned who shall haue right or pro­ꝑtye to these lādes & tenemētes / or to these goodes or catailes if it be nat agaynst the lawe of god / nor agaynst the lawe of rea­son bynde all them that be subgecte to the lawe: in lawe & conscience / & suche a statu­te is the statute of westminster the .ii. whereof we haue treated byfore / wherefore it must▪ be obserued in conscience.

But some holde that the sayde statute of Westmynster▪ the .ii. was made of a singu­laritie & presumpcion of many that were at the sayd parliament for exaltinge and magnifienge of theyr owne blode: & therfore they saye that that statute made by su­che a presumpcion byndeth nat in consciē ce.

It is very perillous to iu­ge for certayne that the sayde statute was made of suche a presumpcion as thou spekest of / for there be many consideracions to proue that the sayd statute was nat made of suche a presumpcion but rather of a very good mynde of all the parlyamente / or at the leste of the more parte thereof / & for the common welthe of all the realme / [Page 58] & fyrste in the kyng the whiche in the said parliament was the hede and moste chyef & principall parte of the parliament as he is in euery parliament / can nat be noted no suche intēt / For it is nat necessary nor it was nat than in vse that landes of the crowne shulde be entayled: & in spirituall men ne yet in certayne burgesies & cytizēs of the sayde parlyamente whiche at that tyme had no lande / there can be noted no suche singularitie / nor yet in the noble mē & gentilmen nor suche other as were of y ^e sayd parliamēt & had landes & tenemētes It is nat good to iuge ī certayn that they dyd it of suche a presūpcion / but it is good and expedient in this case as it is in other cases that be in doubte to holde the surer waye / and that is that it was made of charitie / to the intente that he nor the heyres of hym to whome the lande was gyuen shulde nat falle in to extreme pouertye / and thereby haplye to ronne in to offence agaynste god / and thoughe it were tre­we as they saye that it was nat made of charytie but of presumpcion and singu­laritie as they speke of. Neuerthelesse for as moche as the statute is nat agaynste the lawe of god nor agaynste the lawe of [Page] reason it must be obserued by all thē that be subiectes vnto that lawe / For as Iohn̄ Gerson sayth in the treatyse that he entituleth in latine De vita spirituali anime: the fourth lesson & the thyrde corollarie: sayth that god wyl that makers of lawes iuge only of outwarde thynges & reserue secrete thinges to him. And so it appereth that man maye nat iuge of the inward intent of the deed / but of suche thynges as be apparaūt / & certayne it is that it is nat apparaunte that there was any suche corrupte entent in the makers of the sayd statute / howe may it therfore be sayd that y ^t lawe is good or right wyse / that nat only suffereth suche thynges agaynst the statute / but also agaynst the commaundement of god.

To that some answere & say: that whan the lande is solde & a re­couery is had therupon in the kīges court of recorde that it sufficeth to barre the tayle in conscience / for they saye that as the tayle was fyrste ordayned by the lawe.

So they saye that by the lawe it is adnulled agayne.

Be thou thy self iuge if in that case there be lyke auctorite in the makynge of the tayle as there is in the adnullynge therof / for it was orday­ned [Page 59] by auctorite of parliament / the which is alway taken for the moste hyghe court in this realme byfore any other / and it is anulled by a false supposell: for that that they that be named demaundaūtes shulde haue right to the lande where in trouthe they neuer had right therto: whereupō foloweth a false supposell in the writte / & a false supposell in the declaracion & a voucher to warraūte by couyn of suche a per­son as hath nothynge to yelde in value & thereupon by couyn & collucion of the perties foloweth the default of the vouchee: by the whiche default the iugement shall be gyuen. And so al that iugemente is deriuyed & grounded of the vntrue supposell & ouyn of the parties / whereby the lawe of realme that hath ordayned suche a writte of entre to helpe them that haue righte to landes or tenementes is defrauded: the courte is desceyued the heyre is disherited: & as it is to doubte the byer & the seller & theyr heyres & assignes hauing knowlege of the tayle be bounde to restitucion / and verily I haue herde many tymes / that aft the lawe of the realme suche recoueries shulde be no barre to the heyre in the tayle if the lawe of the realme might be therein [Page] indifferently harde.

I can nat se but that after the lawe of the realme it is a barre of the tayle / for whan the tenāt in tayle hath vouched to warrauntie / and the vouchee hathe appered & entred in to the warrauntye / & after hath made defaut in despite of the court: whereupō iugemēt is gyuen for the demaundaunt agaynste the tenaunt / & for the tenaunt that he shal recouer in value agaynst the vouchee / the heyre in the tayle shulde after brynge his forme done and recouer the landes intay­led / and after vouchee purchaseth lan­des / than shulde the heyre also haue execucion agaynst hym to the value of the lan­des entayled as heyre to his auncestre y ^t was tenaunt in the fyrst accion: and so he shulde haue his owne landes / and also the landes recouered in value: and therefore bycause of that presumpcion that the vouchee maye purchase landes after the iugement / some be of opinion that it is in the lawe a good barre of the tayle.

I suppose that in that case thou haste put that the vouche maye barre the heyre in tayle of his recouerie in value bycause he hath recouered the fyrste landes. Neuer­thelesse I wyll take a respite to be aduised [Page 60] of that recouerye in value. And if thou can yet shewe me any other consideracion why the sayde recoueries shuld stāde with conscience / I praye the let me here thy cō ­ceyte therein / for the multitude of the said recoueries is so great that it were greate pytye that all they shuld be bounde to re­stitucion that haue landes by suche reco­ueries syth there is none that as far as I can here disposeth them to restore.

Some men make an other reason to proue that the sayde recoueries shulde be sufficient by the lawe to a voyde the state of west. than & if they be sufficiēt therto / they be sufficient in conscience.

What is theyr reason therin.

In the .vii. yere of kynge Hē ry the .viii. the .iiii. chapitre amonge other thynges it is enacted / that all recouers theyr heyres & assignes may aduowe and iustifie for rentes seruice and customes by them recouered: as they agaynste who­me they recouered mighte haue done.

And than they saye that whā the parlia­mēt gaue to suche recouerers auctorite to aduowe & iustifie for suche rētes customes & seruices as they recouered / that y ^e entēt of the parliament was y ^t suche recouers [Page] shulde haue right to that: for the whiche they shulde aduowe or iustifi: for els they saye that it shuld be in vayne to gyue thē suche power / & that the parliament shulde els be takē in maner as fortifiers of wrōg full rules: & so they say that suche recoue­rers by reason of the sayde statute haue right the law.

That statute as it semeth was made onely to gyue to the recouerers a forme to aduowe & iusty­fie / whiche they had nat byfore though they had recoueryd vpon a good tytle. And the cause why they had no forme to aduowe or iustifie byfore the sayde statute was for as moche as the recouerers dyd nat by the pretence of theyr acciō afferme the possession of him or thē agaīst whome they recouered / nor claymed nat by them / but rather disafermed and distroyed theyr astate. And therfore they cā nat alege any continaunce of theyr title by thē / as they may that haue rentes or seruices / or such other of the graunt of other by dede or by fyne. And therfore as it semeth the moste principall intent of that statute was: that suche recouerers shuld auowe & iustify for rentes seruices & customes as they shulde or might do that had them by fine or dede [Page 61] nat hauinge any respect as it semeth whether they recouered agaynst tenaūt in fee simple or in fee tayle / nor whether the re­coueries were had vpon a rightfull title. And therfore as me semeth the sayd esta­tute neyther affermeth nor disaffermeth the title of the recoueries wherby they do aduowe for if a man had right byfore the recouerye that right shulde remayne vnto hym natwithstandynge the sayd statute: & so me semeth that the title of them that haue the landes entayled by suche recoue­ries is nothynge fortyfyed nor affermyd by the said estatute but that they are ī the same case as they were byfore: what thynkest thou therin.

/ this mater is great / for as thou sayste there be so many that haue tayled landes by suche reco­ueries / that it were great pytie & heuynes to condempne so many persones & to iuge that they all were bounde to restitucion: For I thynke there be but fewe ī this real me that haue landes of any notable value but that they or theyr aūcestours / or some other by whome they clayme haue had parte therof by such recoueries / In so moche that lordes spirituall & tēporal knyghtes / squyres ryche men / & poore / monaste­ries [Page] / collegies / and hospitalles haue suche landes / for suche recoueries haue ben vsed of longe tyme / who may thynke therfore without great heuines that so many men shulde be bounde to restitucion / and that yet as thou sayste / no man disposeth hym to make restitucion. And so I am in ma­ner perplexed and wot nat what to saye in this case / but that yet I truste that igno­raunce maye excuse many persons in this behalfe.

Ignoraunce of the dede maye excuse / but ignoraunce of the lawe excuseth nat but it be inuincible / that is to saye that they haue done that ī them is to knowe the trouthe as to coun­cell with lerned men: and to aske thē what the lawe is in that behalfe and if they an­swere them that they may do this or that lawfully / than they be thereby excused in conscience / but yet in mannes lawes they be nat thereby discharged / but they that haue taken vpon them to haue knowlege of the law be nat excused by ignoraunce of the lawe / ne no more are they that haue a wilfull ignoraunce & that wolde rather be ignoraunt than to know the trouth. And therfore they will nat dispose them to as­ke any councell in it / & if it be of a thynge [Page 62] that is agaynste the lawe of god / or the lawe of reason / no man shalbe excused by ignoraunce / and to there be but fewe that be excused by ignoraūce.

what than shall we condempne so many & so no table men.

We shall nat con­dempne them / but we shall shewe them theyr peryll.

yet I truste that theyr daunger is nat so greate that they shulde be bounde to restitucion. For Iohā Gerson sayth in the sayd boke called Devintate ecclesiastica consideracione secun­da / quod cōmunie error facitius. That is to saye a common errour maketh a right / of whiche wordes as it semeth some trust maye be had / that though it were fully admitted that the sayd recoueries were fyrst had vpon an vnlawfull grounde and a­gaynste the good ordre of conscience that yet neuertheles for as moche as they ha­ue ben vsed of longe tyme / so that they haue ben taken of diuers men that haue ben righte well lerned in maner as for a lawe / that the byers partly be excused so y ^t they be nat bounde to restituciō. And moreouer it is certeyn that y ^t statute of westm̄ the. 2 nor none other statute made by mā cā nat be of greater vertue or strength / thā was [Page] the bonde of matrimonie that was ordayned by god. And though that bonde of matrimoni was indissoluble / yet neuertheles Moyses suffred a byll of refusell to the Iewes / whiche in latine is called Libellū re­pudu / and so they mighte thereby forsake theyr wyfes. As it appereth Deutro. xxiii. & therefore lyke as a dispensacion was sufred agaynst that bōde / so it semeth it may be agaynst this statute.

as to that reason that thou haste laste made of a byll of refusell / let all purchasours of lā ­de here what our lorde sayth in the Gos­pell to the Iewes of that byll of refusell Mathei. xix. where he sayth thus / To the hardnes of iour hertes / Moyses suffred you to leue your wyfes / for at the begyn­nynge it was nat so / of whiche wordes Doctours holde commonly that thoughe suche a byll of refusell was lawfull so that they y ^t refused theyr wyfes therby / shulde be without payne in the lawe / that yet it was neuer lawfull so that it shuld be with out synne. And so likewyse it may be sayd in this case / that suche recoueries be suf­fred for the hardnes of the hertes of En­glisshemen / whiche desyre lande & posses­sions with so great gredynes that they cā [Page 63] nat be withdrawne from it neyther by the lawe of god / nor by the lawe of the realme And therefore that ryche men shulde nat take the possessions of poore mē from thē by power without coloure of title / that is to saye eyther by open disseson / or by the onely sale of the tenaunte in tayle & so to holde them agaynste the expresse wordes of the statute / suche recoueryes haue ben suffred. And though for theyr great multitude they maye haplye be without payne as to the lawe of the realme: yet it is to feare that they be nat without offence as agaynst god / & as to thy other reason that a common errour shulde make a right those wordes as me semeth be to be thus vn­derstande / that a custome vsed agaynst the lawe of man shalbe taken in some coūtres for lawe if the people be suffred so to continue. And yet some mē call suche a custome an errour bycause that the continuance of that custome agaynst the lawe: was partlye an errour in y ^e people / for that y ^t they wolde nat obey to the law that was made by theyr superiours to the contrarye of y ^t custome: but it is to be vnderstande that the sayd recoueries though they haue ben longe vsed may nat be taken to haue the [Page] strength of a custome / for many as well lerned as vnlerned haue alwaye spokē a­gaynste thē and yet do. And furthermore as I haue herde say a custome or a p̄scripcion in this realme agaynste the statutes of the realme preuayle nat in the lawe.

though a custome in this real­me preuayleth nat agaynst a statute as to the lawe / yet it semeth that it may preuayle agaynste the statute in conscience / for though ignoraunce of a statute excuseth nat in the lawe / neuertheles it may excuse in conscience / & so it semeth that it may do of a custome.

But it suche recoueries can nat be brought in to a lawful custome in the lawe / it semeth they maye nat be brought in to a custome in conscience / for conscience muste alway be groūded vpon some lawe: & in this case it can nat be grounded vpon the lawe of reason / nor vpon the lawe of god: and therefore if the lawe of man serue nat / there is no groūde wherupon conscience in this case may be grounded / & at the begynnynge of suche recoueries they were taken to be goood / bycause the lawe shuld warraunt them to be good and nat by reason of any custome and so if the reason of the lawe wyll nat [Page 64] serue in tho recoueries / the custome cā nat helpe for an euyll custome is to be put a­waye. And therfore me semeth that tho recoueries be nat without offence against god / thoughe haplye for theyr great multitude / and that there shulde nat be as it were a subuersion of the inheritaunce of many in this realme: as well of spirituall as temporall / they be withoute payne in the lawe of the realme: excepte suche recoueries as by the commō course of the law be voydable in the lawe by reason of some vse / or of some other speciall matter / but what payne that is I wyll nat temerous­ly iuge / but committe it to the goodnes of our lorde whose iugementes be very depe and profounde / nor I wyll nat fully af­ferme that they that haue landes by su­che recoueries oughte to be compelled to restitucion / but this semeth to me to be good councell that euery mā hereafter holde that is certayne & leue that is vncertaī & that is that he kepe hym self from suche recoueries and than he shalbe fre from all sertrulousnes of conscience / in that behalf

It semeth that in this que­stion thou ponderest greatly the sayde statute of Westm̄. the .ii. & that thoughe it be [Page] but onely a lawe made by mā / that yet for as moche as it is nat agaynst the lawe of reason / nor the lawe of god / thou thynkest that it muste be holden in conscience / and ouer that as it semeth thou arte somwhat in double whether those recoueries be any barre to the heyre in the tayle by the lawe of the realme onles that he haue in value in dede vpon the voucher / & that thou wilt thereupō take a respite or thou shewe thy full mynde therein / & in lykewyse thou thī kest as I take it that those recoueries can nat be brought in to a custome but that y ^e longer that they be suffred to continue if they be nat good by the lawe the greater is the offence agaynst god. And therfore thou ponderest litle that custome / but yet thou agreest that it is good to spare the multitude of them that be paste: leste a subuercion of the inheritaunce of many of thꝭ realme might folowe & great stryfe & va­riaunce also: if they shulde be adnulled for the tyme past: except there be any other especiall cause to auoyde them by the lawe as thou haste touched in thy laste reason / but thou thynkest that it were good that from hensforth suche recoueryes shuld be clerely prohibit & nat be suffred to be had [Page 65] in vse as they haue ben byfore: & thou coū ceyllest all men therfore to refrayne them selfe from suche recoueries hereafter.

Thou takest well that I haue sayde & accordynge as I haue mente it

Now I pray the syth I haue harde thy question of these recoueries ac­cordynge to thy desyre that thou woldest answere me to some perticuler questiōs cō cernynge tayled landes: wherof thou hast at this tyme gyuen vs occasion to speke.

shewe me those questions: & I wyll shewe the my mynde therein with good wyll∴

☞ The fyrste question of the Student concernynge tayled landes. The .xxvii. Chapitre.

If a dissesour make a gyfte in the tayle to Iohan at style & Iohā at style for the redemyng of the title of the dissesye agreeth with hym that he shall haue a certayne rent out of the same lande to him & to his heyres / & for the suertye of that rent it is diuised that the disse­sye shall release his right in the lande. &c̄. & that suche a recouery as we haue spokē [Page] of byfore shalbe had agaynste the sayd Iohan at style to the vse of the payment of y ^e sayde rente and of the former tayle whe­ther standeth that recouery well with cō ­science or nat as thou thynkest.

I suppose it dothe for it is made for the strength and suertye of the tayle whiche the dissesye might haue clerely defeated & auoyded if he wolde / & therefore as I thinke if the sayde Iohan at style had graunted to the dissesye onely by his dede a cer­tayne rente for the releasinge of his title that graunte shulde haue bounde the heyres in the tayle for euer. And than if the dissesye for his more suertye wyll haue su­che a recouerie a byfore appereth it se­meth that that recouerye standeth with good conscience.

It semeth that thy oppynion is righte good in this matter. And so it appereth that with a reasonable cause some particuler recoue­ries maye stande bothe with lawe and cō science to barre a tayle.

☞ The seconde question of the Student concernynge tayled landes ⸫ The .xxviii. Chapitre.

I a tenaunt in tayle suffre a recouery agaynste hym of the landes entayled to the entent that the reco­uerers shall stande seased therof to the vse of a certayne woman whome he entēdeth to take to his wyfe / for terme of her lyfe / and after to the vse of the fyrste tayle: and after he maryeth the same woman / whe­ther standeth that recouery with conscience though other recoueries vpon bargaynes and sales dyd nat.

It se­meth yes / for though the statute be / that they to whome the tenementes be so gyuē shulde nat haue power to aliene / but that the landes after theyr deth shulde remay­ne to theyr issues or reuert to the donours if the issues fayled: yet if he to whome the landes were so gyuen take a wyfe & dyeth seased without heyre of his body / and the donour entre the woman shall recouer a­gaynste hym the thyrde parte to holde in y ^e name of her dowre for terme of her lyfe though y ^e tayle be determined / & the same law is of tenāt by y ^e curtesy: y ^t is to say of hī y ^t happeneth to marye one y ^t is an ēheritrix of y ^e lāde entayled: & they haue issue the wyfe dyeth & y ^e issue dyeth / he shal holde the lādes for terme of his lyfe as tenāt [Page] by the curtesye / natwithstanding the wordes of the statute whiche say that after y ^e deth of the tenaunt in tayle without issue the landes shall reuert to the donour / & I thynke the cause is bycause the intente of that statute shall nat be taken that it intē ded to put awaye suche titles as the lawe shulde gyue by reason of the tayle / & so it semeth that a lyke entēt of the statute shal be taken for ioyntours / for els the statute might be somtyme a lettynge of matrymony / & it is nat lyke that the statute inten­ded so / & therfore it semeth that by the onely deed of the tenaunt in tayle a ioyntour may be made by the intent of the statute / thoughe the wordes of the statute serue nat expressely for it / for many tymes the intent of the letter shalbe taken & nat the bare letter / as it appereth in the same sta­tute where it is sayd that he to whome y ^e landes be gyuen shall haue no power to alien / yet the same statute is construed y ^t neyther he nor his heyres of his body shal haue no power to alyen / & so me thynketh that suche an intent shalbe taken here for sauyng of ioyntours.

trouth it is that somtyme the intent of a statute shalbe taken ferther than the expresse let­ter [Page 67] stretcheth / but yet there may no entent be taken agaynst the expresse wordes of y ^e statute / for that shulde be rather an inter­pretacion of the statute than an exposiciō & it can nat be reasonably taken / but that the intēt of the makers of the statute was that the lande shuld remayne continually in the heyres of the tayle as longe as the tayle endureth / & there can no ioyntour be made neyther by dede nor be recouerye / but that the tayle must therby be discontinued / & therfore this case of ioyntoure is not lyke to the sayd cases of tenant in do­wer or tenaūt by the courtesie / for the title of dowrye & of tenaunty by the curtesye groweth moste specially by the continuaū ce of the possessiō in the heyres of the tayle but it is nat so of ioyntoures / & therfore by the onely dede of the tenaunte in tayle / there maye no Ioyntour be lawfully ma­de agaynste the expresse wordes of the statute. And if there be any made by waye of recouerye / than it semeth that it muste be put vnder the same rewle as other recoueryes muste be of landes intayled.

☞ The thyrde question of the Student / concernynge tayled landes ⸫ The .xxix. Chapitre.

If Iohn̄ at noke beyng sea­sed of landes in fee of his mere mociō make a feoffement of a certayne lan­des to the intēt that the feoffes shall ther­of make a gyfte to the sayde Iohan at noke to haue to him and to his heyres of his body and they make the gyft accordinge. And after the sayd Iohan at noke falleth in to dette / wherefore he is taken & put in pryson / and therupon for payment of his dettes he selleth the same lande / and for suertye of the byer he suffereth a recouerie to be had agaynst hym in suche maner as byfore appereth / whether standeth that recouerye with conscience or nat.

I wolde here make a litell digression to aske the another question or that I made answere to thyne: that is to say to fele thy mynde howe that lawe by the whiche the body of the dettoure shalbe taken & caste in to pryson there to remayne tyll he haue payde the dette maye stande with consciē ce specially if the haue nothynge to paye it with / for as it semeth if he wyll relinquis­she [Page 68] his goodes / whiche in some lawes is called in laten Cedere bonis that he shall nat be inprysoned / and that is to vnderstande moste specially if he be fallen in to pouertye and nat through his owne defaute.

There is no lawe in this realme that the defendaunt may in any case Cedere bonꝭ / and as me semeth if there were suche a lawe it shulde nat be indiffe­rent / for as to the knowlege of hym that the money is owynge to the dettoure mi­ghte Cedere bonis / that is to saye relin­quisshe his goodes / and yet retayne to him selfe secretely greate ryches. And there­fore that lawe in suche case semeth more indifferēt and rightouse that committeth suche a dettour to the consciēce of the plaī tyfe to whome the money is owynge thā that cōmitteth hym to the cōscience of hī that is the dettour / for in the dettour some defaute maye be assigned / but in hym to whome the money is owynge maye be assinged no defaut.

But if he to whome the dette is owinge / knoweth that the dettoure hath nothyng to pay the det with / & that he is fallē in to that pouertie by some casualtie. And nat throughe his owne defaute / doth the lawe of Englande [Page] holde that he maye with good conscience kepe the dettour styll in pryson tyll he be payde.

nay verily: but it thinketh more resonable to appoynt the liber­tie & the iugement of conscience in that case to the dette than to the dettoure / for the cause byfore rehersed. And than the dette / if he knowe the trouthe is as thou haste sayde bounde in conscience to lett hym go at lybertie though he be nat compellable thereto by the lawe. And therfore admit­tynge it for this tyme / that the law of Englāde in this poynt is good & iuste. I pray the that thou wilte make answere to my question.

I wyll with good wyll / & therfore as me semeth for as moch as it appereth that the sayd gyft was made of the mere liberte & fre wyll of the said Iohan at noke / & without any recompēce that therefore it can nat be otherwyse ta­ken / but that the intent of the sayde Iohā at noke as well at the tyme of y ^e sayd feoffement / as at the tyme that he receyued agayne the sayd gyfte in the tayle / was y ^t if he happened afterwardes to falle in to pouertie / that he might alyen the sayd lā ­de to releue hym with / for howe may it be though that a man wyll so moche pondre [Page 69] the welthe of his heyre / that he wyll for­get hym selfe / & so it semeth that nat one­ly the sayde recouerye standeth with con­science: but also that if he had made onely a feoffement of the lande that that feoffe­ment shulde be in conscience a good barre of the tayle / but if the sayd feoffement and gyfte had ben made in consideraciō of any recompence of money or for any matrimony or suche other / than the feoffemente of the sayd Iohan at noke shulde nat bynde his heyre / and if he than suffred any reco­uerye thereof: than that recouerye shulde be of lyke effecte as other recoueries whe­reof we haue treated byfore / & the whiche I sayd it was good to fauour rather for theyr multitude than for the conscience: & the same lawe is that if the sonne and the heyre of the sayd Iohan at noke in case y ^t the sayde gyfte was made without recompence alyen the lande for pouertye after the deth of his father that recouerye byn­deth nat but as other recoueries do / for it cā nat be thought that the entēt of the fa­ther was that any of his heyres in tayle shulde for any necessite dissherite all other heyres in tayle that shuld come after hym but for hī selfe me thinketh it is resonable [Page] to iuge in suche maner as I haue sayd by­fore.

And though the intent of the sayde Iohan at noke whan he made the sayde feoffement / and whan he toke a­gayne the sayde gyfte in tayle: were that if he fell in nede that he mighte alien: yet I suppose that he maye nat alien though percase for the more suerte he declared his intent to be suche vpon the lyueries of season: for that intente was contrary to the gyfte that he frelye toke vpon hym: and whan any intent or condicion is declared or reserued agaynst the state that any mā maketh or accepteth: than suche an intēt or condicion is voyde by the lawe as by a case that hereafter foloweth wyll appere / that is to saye if a man make a feoffement in fee vpon condiciō that the feffe shall nat alien it to any man that condiciō is voyde for it is incidente to euery state of the fee simple that he that is so seased may alien. And lyke as in a fee simple there is inci­dent a power to aliene / so in a state tayle there is a secrete intent vnderstande in the gyfte / that no alienacion shalbe made.

And therefore thoughe the intente of the sayde Iohan at noke were that if he fell in to pouertie that he might sel: & though [Page 70] he at the takynge of the gyfte openly de­clared his intente to be so / yet that intent shulde be voyde by the lawe as me semeth and if it be voyde by the lawe it is also voyde in conscience / and so the sayde recouery muste be taken in this case to be of the same effecte as recoueryes of other landes intayled be / and in none other maner.

☞ The .iiii. question of the Student / cō ­cernynge recoueryes of enheritaūce entayled. The .xxx. Chapitre.

If an annuite be graunted to a man to haue & to perceyue to the graunt and to the heyres of his body of the cofers of the grauntour. And after the graunte suffereth a recouere agaynste hym in a writte of entre by the name of a rent in dale of lyke summe as the annuite is of with vouchers & iugemēt after y ^e cō mon course / & bothe parties intende that y ^t annuite shalbe recouered: whether shal that recouere binde the heyre ī the tayle of his annuite.

what if it were a rēt goynge out of lāde of what effect shuld [Page] the recouere be than.

It shuld be than of lyke effecte as if it were of lan­de.

And so it semeth to be of this annuite / for as me thynketh a rēte & an annuite be of one effecte / for the one of them shalbe payde in redye money as the other shal.

That is trouth and yet there be many greate diuersities betwixte them in the lawe.

I praye the shewe me some of tho diuersities.

Parte I shall shewe y ^e / but I wot nat whether I can shew the al but fyrste thou shalte vnderstāde that one diuersitie is this. Euery rente be it rente seruice / rente charge / or rēt seke / is goyng out of lande / but an annuite goth nat out of any lande / but chargeth onely the per­son: that is to saye the grauntoure or hys heyres that haue assez by discente / or the howse if it be graunted by a howse of a religion to perceyue of theyr cofers. Also of an annuyte there lyeth no accion but onely a writ of annuite agaynst the graū tour his heyres or successours / & that writ of annuite lyeth neuer agaynste the per­noure: but onely agaynste the grauntour or his heyres / but of a rente the same ac­cions maye lye as do of lande as the case [Page 71] requyreth: & it lyeth somtyme of rente a­gaynste the tenaunte of the grounde / and somtyme agaynst the pernour of the rent / that is to saye agaynste hym that taketh the rent wrongefully / & somtyme agaynst neyther: as of a rente seruyce assise maye lye for the lorde agaynste the mesme and a dissesoure / or somtyme agaynste the mesne onely if he dyd also the disseason. Also an annuite is neuer taken for an asses by­cause it is no freholde in the law / ne it shal nat be put in execucion vpō a statute marchaunt / statute staple ne elegit as rente maye. And bycause the sayde writte of entre laye nat in this case of this annuite. And that it can nat be entēded in the law to be the same annuite / though it be of ly­ke summe with the annuite: ne though y ^e parties assented and mente to haue the­same annuite recouered by the sayde writ­te of entre / therefore the sayde recouerie is voyde in lawe and conscience / but if suche a recouerie be had of rente with a vouchere ouer than it shalbe ta­ken to be of lyke effecte as re­coueries of landes be in suche maner as we haue treated of before.

☞ The .v. question of the Student / concernynge tayled landes. The .xxxi. Chapitre.

If landes be gyuen to a mā and to his wyfe in the name of his ioyntoure by the father of the husbā de to haue and to holde to them and to y ^e heyres of theyr two bodyes begotten / and after they haue issue & the husbande dyeth and the wyfe alieneth the lande / & against the statute of .xi. H. vii. suffereth a recoue­rye thereof to be had agaynste her to the vse of the byer / and after her sone & heyre apparaunte / that is heyre to the tayle re­leaseth to the recouerers by fyne & dyeth hauynge a brother on lyue / and after the mother dyeth who hath righte to that lā de the byer or the brother of hym that re­leased.

what is thyne oppi­nion therein / I praye the shewe me.

We semeth that the byer hathe righte / for by the sayd statute made in the .xi. yere of kynge Henry the .vii. a­monge other thynges it is enacted that if any man / whiche hath landes of the gyft of her husbande / or of the gyfte of any of [Page 72] the auncestoures of the husbande / suffre any recouerye thereof agaynste her by couyne / that than suche recouerye shall be voyde / and that it shalbe lawfull to hym that shulde haue the lande after the dethe of the woman to entre and it to holde as in his fyrste righte / prouided alwaye that that statute shall nat extende where he y ^t shulde haue the lande after the dethe of the woman is agreable to any suche alie­nacion or recouerye: so that / that agre­mente be of recorde. And for as moche as the heyre in this case agreed to the said recouerye by fyne / whiche is one of the hyest recordes in the lawe / it semeth that the byer hath righte agaynste that heyre that agreed and agaynste all that shalbe heyres of the tayle / and that nat onely by the sayde recouery / but also by the sayde statute whereby the sayde recouerye with assent of the heyre is affermed.

Though the byer in this case haue righte during the lyfe of the heyre that released / yet neuertheles after his dethe his heyre as it semeth maye lawfully entre / for the agremēt wherof the statute speketh must as I suppose eyther be had before the recouery / or els at y ^e tyme of y ^e recouery: for if [Page] a title by reason of y ^e sayd statute be ones deuolute to the heyre in the tayle / than y ^t right as it semeth can nat be extincte nor put awaye by the onely fyne of the heyre / no more than if he had dyed and the nexte heyre to hym had released to the byer by fyne / in whiche case the release coulde nat extincte the righte of the rayle / nor the ri­ghte of entre that is gyuen by the statute / & so as me semeth his nexte heyre maye therefore entre.

As I per­ceyue all thy dowte is in this case bycause the assent of the heyre was after the reco­uerie / for if it hadde ben at the tyme of the recouerie as if the heyre had ben vouched to warrantye in the same recouerie and he had enterred: and thereupon the Iuge­mente had be gyuen thou agreest well / y ^t that recouerye shulde haue auoyded the tayle for euer.

That is true for it is in the expresse wordes of the statute / but whan the assente is after the reco­uerye / than me thynketh it is nat so / ne y ^t the right of the fyrste tayle / whiche was reuyed by the sayde statute shall nat be ex­tincte by his fyne / no more than it shall in other tayles.

I wyll be ad­uised vpon thy opinion in this mater / but [Page 73] yet one thynge wolde I moue ferther vpō this statute and that is this. Some saye that by this statute all other recoueries that haue ben had / ouer and beside these recoueries of [...] be affermed / for they say that syth the parliamēt at the makīg of this statute / knewe well that many o­ther recoueries were than vsed and had to defete tayles and that it was lyke y ^t they wolde so continue / which neuertheles the parliament dyd nat prohibite for the time to come as it dyde the sayde recoueries of ioyntours: that it is therefore to suppose that they thought that they shulde stāde with lawe and consciēce: but bycause iointoures were made rather for the sauynge of the inheritaunce of the husbande / than to destroy the inheritaunce / they say that the parliament thought and adiuged the alienacions and recoueries of suche ioyn­tours to be agaynste the lawe and consciē ce and nat the alienacion of other landes entayled / for if they had they say / that the parliament wolde haue aduoyded recoue­ries of tayled landes generally aswell as it dyd of recoueries of ioyntoures.

As to that opinion I wyll [Page] answere the thus for this tyme / that though that the makers of the sayde estatute onely put awaye recoueries of ioyn­toures / and nat other recoueries that yet it can nat be taken therfore that theyr entent was that the other recoueries shulde stande good and perfite / for they speke thā onely of ioyntours bycause there was no complaynte made in the parliament at y ^t tyme / but agaynst recoueries had of ioyn­tours / and therfore it semeth that they in­tended nothynge concernynge other recoueries: but that they shulde be of the same effecte as they were byfore and no other­wyse. And that will appere more playnly thus / though the makers of the sayd esta­tute entended to put awaye and adnull suche recoueries as shulde be made of ioyn­tours after a certayne day limitted in the statute / that yet they entended nat to ad­uoyde ne afferme suche recoueries of ioyntours as were passed byfore that tyme: & if they intended nat to aduoyde ne affer­me the recoueries had of ioyntoures by­fore that tyme: than howe can it be taken that they intended to put awaye or affer­me other recoueries that were passed by­fore [Page 74] that tyme and nat of ioyntours / that wolde nat afferme ne put awaye recoue­ries passed of ioyntoures byfore that time And so as it semeth they intended to spa­re the multitude of them that were passed of bothe and nat to comforte any to take them after that tyme.

I am contente thy oppinion stande for this tyme / and I wyll aske the another que­stion.

☞ The .vi. question of the Student / concernynge tayled landes. The .xxxii. Chapitre.

If tenaunt in tayle be disseased / and dye and an auncestre collate­rall to the heyre in tayle release with a warrauntye and dye / and the warrātye descendeth vpō the heyre in the tayle / whether is he thereby barred in conscience / as he is in the law.

Bycause our principall intēt at this tyme is to speke of recoueries and nat of warrāties: and also bycause it hath ben of longe tyme takē for a principall maxime of the law y ^t it shuld be a barre to y ^e heyre as well y ^t claymeth [Page] by a fee simple as by a state tayly / and for that also that it was nat put away by the sayde statute of westminster the .i. which ordayned the tayle I wil nat at this time make the an answere then / but will take a respite to be aduised.

Than I praye the yet or we departe shewe me what was the moste principall cause that moued the so moue this question of reco­ueries had of tayled landes.

This moued me thereto / I haue percey­ued many tymes that there be many dy­uers oppinions of those recoueries: whe­ther they stande with conscience or nat / & that it is to dowte that many persones rē into offence of conscience thereby. And therefore I thought to fele thy mynde in them whether I coulde perceyue that it were clere / that they serued to breke the tayle in lawe & conscience / or that it were clerely agaynste conscience so to breke the the tayle / or that it were a mater in dowt and if it appered a matter in dowte / or y ^t it appered that the matter were vsed clerely agaynste conscience / than I thoughte to do somwhat to make the mater appere as it is to the intent: that they that haue [Page 75] the rewle and the charge ouer the people as well the spirituall men as temporall men / shulde the rather endeuer them to se it reformed for the common welth of the people / as well in bodye as in soule. For whan any thynge is vsed to the displesure of god / it hurreth nat onelye the body but also the soule. And tēporall rewlers haue nat onely cure of the bodyes / but also of the soules / and shall answere for them if they perysshe ī theyr defaute: and bycause it semeth by the more apparaunt reason that the tayles be nat brokē ne fully auoyded by the sayd recoueries / & that yet ne­uertheles the great multitude of thē that be passed is righte moche to be pondered Therefore it were very good to prohibite them for tyme to come / to put awaye su­che ambiguities and dowtes as ryse now by occasion of the sayde recoueries / and so they be but as snares to deceyue the peo­ple / and so wyll they be as longe as they be suffered to continue. And me thynketh verily that it were therfore right expediēt that tayled landes shulde from hensforthe eyther be made so stronge in the lawe that the tayle shulde nat be brokē by recouerie [Page] fyne with proclamacion collaterall war­rantye nor otherwyse / or els that all tayls shulde be made fee simple / so that euery man that liste to sell his lande mighte sell it by his bare feoffement and without any scriple or gruge of conscience: & thā there shulde nat be so great expenses in the law nor so great variaunce amonge the peo­ple: ne yet so greate offence of conscience as there is nowe in many persones.

Verily me thynketh that thy oppinion is righte good and charitable in this behalfe. And that the rewlers be boū de in conscience to loke well vpon it to se it reformed and broughte in to good ordre And verily by that thou haste sayde the­rein thou haste broughte me in to remembraunce that there be diuerse lyke snares concernynge spirituall matters suffred a­monge the people / whereby I dowte that many spirituall rewlers be in greate offē ce agaynste god. As it is of that poynte that the spirituall men haue spoken so moche of that preestes shulde nat be putte to answere byfore laye men specially of fe­lonies and murders / and of the statute of xlv. E. iii. the .iii. chapitre / where it is said [Page 76] that a prohibicion shall lye / where a mā is sued in the spirituall courte for tythe of wood / that is aboue the age of .xx. yere / by the name of Silua cedua as it hathe done byfore / and they haue in open Sermons and in diuerse other open communicaciōs and counsayles causes it to be openly no­tefied and knowen that they shulde be all accursed that put preestes to answere / or that maynteyne the sayd estatute / or any other lyke to it. And after whā they haue right well perceyued that nat withstan­dynge all that they haue done therein / it hath ben vsed in the same poītes through all the realme in lyke maner as it was by fore. Than they haue sitte styll and lette the matter passe / and so whan they haue broughte many persones in greate daun­ger / but moste specially them that haue gyuen credence to theyr saynge / and yet by reason of the olde custome haue done as they dyd before / than there they haue lett thē / but verily it is to feare that there is to thēselfe right great offēce therby / that is for to say to s [...] so many ī so great daunger as they say they be. And to do no more to bringe them out of it than they haue done [Page] for if it be trewe as they saye / they oughte to sticke to it with effecte in all charite till it were reformed. And if it be nat as they say thā they haue caused many to offende that haue gyuen credēce to them / and yet countrary to theyr owne conscience do as they dyd byfore / and that percase shulde nat haue offēded if suche saynges had nat ben. And so it semeth that they haue ī the­se matters done eyther to moch or to libel And I beseche all mighty god that some good man may so call vpon all these mat­ters that we haue nowe cōmoned of / so y ^t they that be in auctorite maye somwhat pondre them / & to ordre them in suche maner that offence of cōscience growe nat so lightly thereby hereafter as it hathe done in tyme paste. And verily he that on the crosse knewe the pryce of mānes soule wil hereafter aske a righte strayte accompt of rewlers for euery soule that is vnder them and that shall perysshe through theyr de­faulte.

¶The fyrst question of the Student The fyrste chapitre.

If tenant in tayle after pos­sibilitie of issue extincte do wast / whe­ther dothe he therby offende in con­science thoughe he be nat punysshable of waste by the lawe.

Is the lawe clere that he is nat punysshable for the waste?

ye verely.

And what is the lawe of tenantes for tme of lyfe or for tme of yeres if they do waste.

They be punysshable of wast by the statute & shall yelde treble damagꝭ / but at the comon lawe before that statute they were nat punysshable.

But whether thynkest thou that before that statute they myght haue done waste with consciēce bycause they were nat pu­nysshable by the law?

I thynke nat / for as I take it: the doyng of the wast of suche particuler tenantes for terme of lyfe / for terme of yeres / or of tenantes in [Page 4] dower / or by the curtesye: is prohibite by the lawe of reason / for it semeth of reason that whan suche leases be made / or that suche tytles in dower or by the curtesy be gyuen by y ^e lawe that there is onely gyuē vnto them the annuall ꝓfites of the lande and nat the houses & trees & the grauel to dygge & cary away / wherby the hole ꝓfite of them in the reuercion shulde be taken away for euer. And therfore at the comon lawe for waste done by tenant in dower or tenant by the curtesy there was punysshemēt ordeyned by the lawe by a ꝓhibicion of waste wherby they shulde haue yelded damages to the value of the waste. But agaynst tenant for terme of lyfe or for tme of yeres lay no suche ꝓhibicion / for there was no maxime ī the lawe therin agaynst them as there was agaynste the other. And I thynke the cause was for as moche as it was iuged a folye in the lessour that made suche a lease for terme of lyfe / or for terme of yeres: that at the tyme of the lessee he dyd nat prohibite them that they shulde nat do waste / and sythe he dyd nat prouide no remedye for hym selfe: the lawe wolde none ꝓuide. But yet I thynke nat that the intent of the lawe was that [Page] they myght lawfully & with good cōsciēce do waste / but agaynst tenantes in dower & by the curtesye the lawe prouided remedy for they had theyr tytle vy the lawe.

And verely me thynketh that this tenant in tayle as to doyng of waste / shuld be lyke to a tenaunt for terme of lyfe / for he shall haue the lande no lenger than for terme of his lyfe: no more thā a tenant for terme of lyfe shall / and the waste of this tenant is as great hurte to hym in the reuercion or remayndre / as is the waste of a tenant for terme of lyfe: and if he alyene / the donoure shall entre for the forfeyture as he shall vpon the alyenacion of a tenant for terme of lyfe / and if he make defaute in a Preci­pe ꝙ reddat: the donour shalbe receyued as he shalbe vpon the defaute of a tenant for terme of lyfe / and therfore me thynketh he shal also be punysshable of wast / as tenant for terme of lyfe shall.

If he alyen: the donour shal entre / as thou sayst bycause that alyenacion is to his disheri­tance / and therfore it is a forfeyture of his estate: and that is by an auncient maxime of the lawe that gyueth that forfeyture in that selfe case / and if he make defaute in a Prec̄. ꝙ redd: he in the reuercion / as thou [Page 5] sayest shalbe receyued / but that is by the statute of West .ii. for at the comon lawe ther was no suche receyt / and as for the statute that gyueth the accion of waste agaynst a tenant for terme of lyfe and for terme of yeres it is a statute penall & shall nat be taken by equite / & so there is no re­medy gyuen agaynste hym / neyther by comon lawe nor by statute / as there is a­gaynste tenant for terme of lyfe / & therfore he is vnpunysshable of waste by the lawe.

And thoughe he be vnpu­nysshable of waste by the lawe: yet ne­uerthelesse me thynketh he maye nat by consciēce do that / that shalbe hurtefull to the inheritaunce after his tyme / sythe he hathe the lande but for terme of his lyfe no more than a tenaunte for terme of lyfe may / for than he shulde do as he wolde nat be done to / for thou agreest thy selfe that thoughe a tenaunt for terme of lyfe was nat punysshable of wast before the statute that yet the lawe iuged nat that he myght ryghtfully & with good consciēce do wast. And therfore at this day if a feffement be made to the vse af a man for terme of lyfe / thoughe there lye no accion agaynst hym for waste / yet he offendeth conscience if he [Page] do waste as the tenaunte for terme of lyfe dydde afore the statute whan no remedye lay agaynste hym by the lawe.

That is true / but there is great diuersite bytwene this tenant & a tenant for terme of lyfe: for this tenaunt hath good autho­rite by the donour to do waste / & so hathe nat the tenaunte for terme of lyfe / as it is sayd before. For the estate of a tenaunt in tayle after possibilite of yssue extyncte is in this maner. Whan landes be gyuen to a man & to his wyfe and to the heyres of theyr two bodyes begotten / and after the one of them dyeth without heyres of their bodyes begotten / than he or she that ouer­lyueth / is called tenant in tayle after possibilite of yssue extyncte / bycause there can neuer by no possibilite be any heyre that may inheryte by force of that gyfte. And thus it apereth y ^t the donees at the tyme of the gyfte: receyued of the donour estate of enheritance / which by possibilite might haue continued for euer / wherby they had power to cut downe trees & to do all thīge that is wast / as tenant ī fee simple myght and that authorite was as stronge in the lawe as if the lessour that maketh a lease for terme of lyfe say by expresse wordes in [Page 6] the lease that the lesse shall nat be punys­shable of waste. And therfore if the donour in this case had graunted to the donees that they shulde nat be punisshable of wast that graunt had ben voyde bycause it was included in the gyfte before as it shulde be vpon a gyfte in fe simple: & so for as moch as by the fyrste gyfte and by the lyuere of season made vpon the same: the donees had authorite by the donour to do waste. Therfore though the one of the donees be nowe deed without yssue / so that it is cer­tayne that after the dethe of the other: the lande shall reuerte to the donour / yet the authorite that they had by the donour to do waste: cōtinueth as longe as the gyfte and the lyuerey of season made vpon the same cōtinueth: and I take this to be the reason why he shal nat haue in ayde as te­naunt for terme of lyfe shal / that is to say / for that he can nat aske helpe of that ma­xime / wherby it is ordeyned that a tenant for terme of lyfe shall haue in ayde / for he can nat say but y ^t he toke a greater estate by the lyuerey of season that was made to hym: whiche yet cōtinueth than for terme of lyfe / & so I thynke hym nat bounde to make any restitucion to hym in the reuer­cion [Page] in this case for the waste.

Is thy mynde onely to proue that thꝭ tenant is nat bounde to make restitucion to hym in the reuercion for the waste: or that thou thynkest that he may with clere consciēce do all maner of wast.

I entende to proue no more but that he is nat boūde to restitucion to hym in the reuercion.

Than I wyll ryght well agree to thyn oppinion for the reason that thou haste made / but if thy mynde had ben to haue proued that he myght with clere conscience haue done all maner of waste: I wolde haue thought the contrary therto / and that the tenant in fee simple may nat do all maner of waste & destruction with consciēce / as to pull downe houses & make pastures of cyties & townes / or to do suche other actes whiche be agaynst the comon welthe. And therfore some wyll say that tenant in fee simple may nat with cōsciēce destroye his wodes & cole pyttes wherby a hole contrey for theyr money haue had fuell. And yet though he do so he is nat bounde by conscience to make restitucion to no person in certayne. But now I pray the or thou ꝓcede to the seconde case: that thou wylte somwhat shewe me what thou [Page 7] meanest whan thou sayest: at the comon lawe it was thus or thus: I vnderstande nat fully what thou meanest by that tme at the comon lawe.

I shall with good wyl shewe the what I mene therby.

¶What is ment by this terme whan it is sayd / thus it was at the comon lawe. The seconde chapitre.

The comon lawe is taken thre maner of ways. Fyrst it is taken as the law of this realme of Englāde disceyuered from all other lawes / & vnder this maner taken. It is oftentymes ar­gued in the lawes of Englande what ma­ters ought of ryght to be determined by the comon law / & what by the admiralles courte or by the spirituall courte. And also if an obligacion bere date out of the real­me / as in Spayne / Fraūce / or suche other It is sayd in the lawe & trouthe it is that they be nat pledable at the comon lawe.

Secondely the comon lawe is taken as the kynges courtes of his benche or of the comon place / & it is so taken whan a ple is remoued out of auncien demeane for that the lande is franke fee and pledable at the comon lawe / that is to saye in the kynges [Page] courte & nat in ancien demeane. And vnder this maner taken / it is oftētymes pleaded also in base courtes as in court Barons / the Contie & the court of Pypouders and suche other that this mater or that. &c̄. ought nat to be determined in that courte but at the comon lawe / that is to saye in the kynges courtes. &c̄. Thyrdely by the comon lawe is vnderstande suche thyngꝭ as were lawe before any statute made in that point that is in question: so that / that poynt was holden for lawe by the general or particuler customes & maximes of the realme or by the lawe of reason & the lawe of god: no other lawe added to them by statute nor otherwyse / as ī the case before rehersed in the fyrste chapitre: where it is sayde that at the comon lawe tenante by the curtesy & tenant in dower were punys­shable of waste / that is to say / that before any statute of waste made they were pu­nysshable of waste by the grounde & maxi­mes of the lawe vsed before the statute made in that pointe / but tenant for terme yf lyfe ne for terme of yeres were nat pu­nysshable by the sayde groundes & maxi­mes tyll by the statute remedy was gyuen agaynste them: & therfore it is sayde that [Page 8] at the comon law they were nat punysshable of waste.

I pray the now pro­cede vnto the seconde question.

¶The seconde question of the stu­dent. The thyrde chapitre.

If a man be outlawed & ne­uer had knowlege of y ^e sute / whether may the kynge take all his goodes & reteyne them in conscience as he maye by the lawe.

What is the reason why they be forfeyted by the lawe in that case.

The very reason is for that it is an olde custume & an olde maxime in the lawe: that he that is outlawed shall forfeyte his goodes to the kynge / and the cause why that maxime began was this. Whā a mā had done a trespace to another or an other offence wherfore processe of outlagary laye / & he that the offence was done to had taken an accion agaynst hym accordyng to the lawe / if he had absented hym selfe and had had no lādes: there had ben no remedye agaynst hym: for after the lawe of Englāde no man shalbe condem­ned without aunswere / or that he appere and wyll nat answere / except it be by rea­son of any statute. Therfore for the punis­shement of suche offenders as wolde nat [Page] appeare to make answere & to be iustified in the kyngꝭ courte / it hath ben vsed with­out tyme of mynde / that an attachemēt in that case shulde be directed agaynste hym returnable into the kynges benche or the comon place / and if it were returned there vpō that he had nought wherby he might be attached that than shulde go forthe a Capias to take his persone / and after an alias Capias / & than a Pluries: and if it were returned vpon euery of the sayd Ca­pias that he coulde nat be founde and he appered nat: than shulde an Exigēt be dyrected agaynste hym whiche shulde haue so longe daye of returne / that fyue coūties myght be holden before the returne therof and in euery of the sayde fyue conties the defendant to be solemlye called: and if he appered nat / than for his contumacy and disobedience of the lawe: the coroners to gyue iugement that he shalbe outlawed / wherby he shall forfeyt his goodes to the kynge & lese diuers other aduantages in the law y nedeth nat here to be remēbred nowe. And so bycause he was in this case called accordynge to the lawe & appered nat: it semeth that the kyng hath good ty­tle to the goodes bothe in lawe & cōsciēce.

If he had knowelege of the sute in very dede it semeth the kynge hath good tytle in cōscience as thou sayest. But if he had no knowlege therof: it semeth nat so / for the defaut that is adiuged in hī (as it appereth by thyne owne reason) is his contumacie and disobedience of the lawe / and if he were ignoraunt of the sute / than can there ben assigned in hym no disobedience / for a disobedience implieth a knowe­lege of that he shulde haue obeyed vnto.

It semeth ī this case that he shulde be cōpelled to take knowlege of the sute at his peryll / for sythe he hathe attēpted to offēde the lawe: it semeth reasō that he shalbe compelled to take hede what the lawe wyll do agaynst hym for it / and nat onely that: but that he shulde rather offre amendes for his trespasse than for to tary tyll he were sued for it. And so it semeth the ignoraunce of the sute is of his owne defaute / specially syth ī the lawe is set su­che ordre that euery man may knowe if he wyll what sute is taken agaynst hym / and may se the recordes therof whan he wyll / & so it semeth that neyther the partye nor the lawe be nat bounden to gyue hym no knowlege therin. And ouer this I wolde [Page] somwhat moue ferther in this mater thus That though the acciō were vntrue / & the defendaūt nat gylthy / that yet the goodes be forfeyted to the kyng for his nat appa­raūce in lawe & also in consciēce / & that for this cause / the kyng as souereyne & hed of the lawe is boūden of iustice to graūt such writtes and such ꝓcesses as be oppoynted in the lawe to euery ꝑsone that wyll com­playne: be his surmyse true or false / & there vpon the kynge (of iustice) oweth as well to make processe to bryng the defendaunt to answere whā he is nat gyltye as whan he is gyltie / & thā whā there is no maxime in the lawe that if a man be outlawed in suche maner as before apꝑeth that he shall forfayte all his goodes to the kynge / & maketh no excepciō whether the acciō be true or vntrue / it semeth that the sayd maxime more regardeth the generall ministracion of iustice: than the particuler ryght of the party: & that therfore the property by the outlawry & by the sayd maxime ordeyned for ministracion of iustice is altered and is gyuen to the kynge as byfore appereth / & that both in lawe and cōscience as wel as if the accion were true. And than the ꝑtie that is so outlawed is dryuen to sue for his [Page 10] remedy agaynste hym that hath so caused hym to be outlawed vpon an vntrue acciō

If he haue nat sufficient to make recompence or dye before recouere can be had / what remedy is than.

I thynke no remedy / and for a ferther decla­racion in this case and in suche other lyke cases where the propertie of goodes maye be altered without assēt of the owner: it is to cōsydre that the ꝓpertie of goodꝭ be nat gyuē to the owners directly by the law of reason nor by the lawe of god but by the lawe of man / & is suffred by the lawe of reason & by the law of god so to be. For at the begynnyng al goodꝭ were in comō / but after they were brought by the lawe of man into a certeyne ꝓpertie so that euery man myght knowe his owne: & thā whan such ꝓpertie is gyuē by the law of mā the same lawe may assigne such cōdiciōs vpō the ꝓpertie as it lysteth / so they be nat agaynst the lawe of god ne the lawe of reason / and may lawfully take away that it gyueth / & appoynt howe longe the ꝓperty shall con­tinue. And one cōdiciō that goeth with euery ꝓperty ī this realme: is if he that hathe the ꝓperty be outlawed accordyng to such proces as is ordeyned by the lawe / that he [Page] shal forfayte the propertie vnto the kyng / and diuerse other cases there be also: wher by propertie in goodꝭ shalbe altered in the lawe and the ryght in landes also without assente of the owner / wherof I shall shor­tely touche some without laynge any auc­thorite therin / for the more shortnes. Fyrst by a sale in open marked the propertie is altered. Also goodes stolen and seased for the kynge or weyued be forfaite oneles appelle or enditement be sued. Also strayes if they be proclaymed and be nat after clay­med by the owner within the yere be for­fayte / & also a deodand is forfayte to who­me so euer the property was byfore / except it belonged to the kynge and shalbe dispo­sed for the soule of hym that was slayne therwith: and a fyne with a nonclayme at the comō lawe was a barre if claime were nat made within a yere as it is nowe by statute if the clay We be nat made withī .v. yeres. And al these forfaytures were ordeyned by the lawe vpon certayne considera­cions whiche I omit at this tyme / but certeyne it is that none of thē was made vpō a better cōsideracion than this forfayture of outlagary was. For if no especiall pu­nisshemēt shulde haue ben ordeyned for of­fenders [Page 11] that wolde absent them selfe & nat appere whan they were sued in the kyngꝭ courtes many sutes in the kinges courtes shulde haue ben of smale effecte. And sythe this maxime was ordeyned for the execu­cion of Iustice and as moche done therin by the comon lawe as policie of mā coulde reasonably deuise to make the partie haue knowelege of the sute and nowe is added therto by the statute made the syxte yere of kynge Hnry the .viii. that a writte of pro­clamacion shalbe sued if the partie be dwellynge in a nother shyre / it semeth that such title as is gyuē to the kyng therby is good in cōsciēce / especially seyng that the kyng is bounden to make processe vpon the sur­myse of the playntyfe & may nat examine but by the ple of the partie whether the surmyse be true or nat. But if the partie be retourned .v. tymes called where in dede hf was neuer called as in the seconde case oe the laste Chapitre of the sayd dialogue ī latyne is conteyned / than it semeth the par­tie shall haue good remedy by petition to the kynge / specially if he that made the re­turne be nat sufficient to make recōpence or dye byfore recouere can be had.

Nowe syth I haue herde thyne opinion in [Page] this case wherby it appereth that many thyngꝭ muste be sene or a ful and a playne declaracion can be made in this behalfe / & seyng also that the plaine answere to this case shall gyue a great lyght to dyuerse o­ther cases that may come by suche forfey­ture. I pray the gyue me a ferther respyte or that I shewe the my ful opinion therin / and here after I shall ryght gladly do it.

And therfore I pray the procede nowe to some other case.

❧The thyrde question of the student. The fourth Chapitre.

If a straunger do waste in lā des that a nother holdeth for terme of lyfe without assent af the tenaunt for terme of lyfe: wether may he in the reuercion recouer treble damages and the place wasted agaynste the tenaunt for terme of lyfe accordyng to the statute in conscience as he may by the lawe: if the straunger be nat sufficient to make recompence for the wast done.

Is the lawe clere in this case that he in the reuercion shal recouer agaynst the tenaūt for terme of lyfe thoughe that he assented nat to the doyng [Page 12] of the wast.

ye verely / and yet if the tenaūt for terme of lyfe had ben boū den in an obligacion in a certeyne sūme of money that he shulde do no waste: he shuld nat forfayt his bōde by the wast of a straū ger / and the diuersite is this. It hathe ben vsed as an auncient maxime in the lawe that tenaunt by the curtesy and tenaūt in dower shuld take the lande with this charge / that is to saye / that they shulde do no waste them selfe ne suffre none to be done / and whan an accion of wast was gyuen after agaynst a tenaunt for terme of lyfe: thā was he taken to be in the same case as to that poynt of waste as tenaunt by the curtesy and tenaunt in dower was / that is to saye / that he shulde do no waste nor suffre none to be done / for there is a nother maxime in the lawe of Englande that all cases lyke vnto other cases shalbe iuged aft the same lawe as the other cases be & syth no resō of diuersite can be assigned why thete nāt for terme of lyfe after an acciō of wast was gyuē agaynst hī shuld haue any more fauour ī the lawe thā the tenāt by the curtesie or tenaūt ī dower shuld / therfore be is put vnd the same maxime as they be / that is to say / that he shall do no wast ne suffre [Page] none to be done / and so it semethe that the lawe in this case dothe nat considre the a­bilite of the persone that dothe the waste whether he be able to make recompēce for the wast or nat. But the assent of the sayd tenauntes wherby they haue wylfully ta­ken vpon thē the charge to se that no wast shalbe done.

I haue herde that if houses of these tenauntes be destroyed with sodeyne tempest or with straunge enemies that they shall nat be charged with wast.

Trouthe it is.

And I thynke the reason is bycause they can haue no recouere ouer.

I take nat that for the reason: but that it is an olde reasonable maxime ī the lawe that they shuld be discharged ī those cases / how be it some wyll saye that in those cases the lawe of reason doth discharge them & therfore they saye that if a statute were made that they shulde be charged in those cases of wast that the statute were agaynst rea­son and nat to be obserued / but yet neuer­theles I take it nat so / for they myght re­fuse to take suche estate if they wolde / and if they wyll take the state after the lawe made: it semeth reasonable that they take it with the charge and with the condicion [Page 13] that is appoynted therto by the lawe thoughe hurte myght folowe to thē afterward therby / for it is oftentymes sene ī the lawe that the lawe doth suffre him to haue hurt without helpe of the lawe that wyll wyl­fully renne into it of his owne acte nat cō ­pelled therto and aiugeth it is folly so to renne into it / for whiche folly he shall also be many tymes without remedy in conscience. As if a man take landes for terme of lyfe and byndeth hym selfe by obligacion that he shall leue the lande in as good case as he founde it / if the houses be after blo­wē downe with tempest or destroyed with straunge enemies as in the case that thou hast put byfore he shalbe boūde to repayre them or els he shall forfayte his obligaciō in lawe & conscience bycause it is his owne acte to bynde hī to it / & yet the lawe wolde nat haue bounde hym therto as thou hast sayd byfore. So me thīketh that the cause why the sayd tenauntes be discharged in the lawe in an accion of wast whā the houses be destroyed by sodeyne tempest or by straunge enemyes: is by a speciall reasonable maxime in the lawe / wherby they be excepted fro the other generall bonde byfore reherced / that is to saye they shall at theyr [Page] peryl se that no waste shalbe done and nat by the lawe of reason / and syth there is no maxime in this case to helpe this tenaunt ne that he can nat be holpē by the lawe of reason / it semeth that he shalbe charged in this case by his owne acte bothe in lawe & conscience whether the straunger be able to recompence hym or nat.

I doute ī this case whether the maxime that thou spekest of be reasonable or nat / that is to say / that tenauntes by the curtesye & tenauntes in dower were bounden by the comon lawe lawe that they shulde do no waste them selfe / and ouer that at theyr peryll to se that no waste shulde be done by none other. For that lawe semeth nat rea­sonable that byndeth a man to an impossibilite. And it is impossible to preuent that no wast shalbe done by straungers / for it may be sodeynly done ī the nyght that the tenaūtꝭ can haue no notice of / or by great power that they be nat able to resyste / and therfore me thīketh they ought nat to be charged in those cases for the waste / with­out they may haue good remedy ouer. and thā percase the sayd maxime were suffera­ble / & els my thynketh it is maxime agaīst reason.

As I haue sayd before [Page 14] no man shalbe compelled to take that bōde vpon hym but he that wyll take the lande and if he wyll take the lande: it is reasō he take the charge as the lawe hath appoynted with it / and thā if any hurte growe to hym therby: it is throughe his owne acte and his owne assent / for he myght haue refused the lease if he wolde.

Thoughe a man may refuse to take estate for terme of lyfe or for terme of yeres / and a womā may refuse to take her dower: yet tenaūt by the curtesy can nat refuse to take his estate for immedeatly after the deth of his wyfe: the possession abideth styll ī hym by the acte of the lawe without entre / and thā I put the case that after the deth of his wyfe he wolde weyue the possessiō & after wast were done by a straūger: whether thī kest thou that he shuld answere to the wast

I thynke he shulde by the lawe.

And howe stādeth that with rea­sō / seyng there is no defaut ī hī.

It was his defaut / & at his owne peryll that he wolde marye an enheritrice whervpon such daūger myght folowe.

I put case that he were withī age at the mariage or that the lāde discēded to his wyfe aft he maried her.

there thou mouest a [...] [Page] doute than the fyrste question is / & though it were as thou sayst / yet thou cannest nat say but that there is as great defaut in hī as is in hym in the reuercion / & that there is as great reason why he shulde be char­ged with the waste as that he in the reuer­cion shulde be disherited and haue no ma­ner remedy ne yet no profytte of the lande as the other hathe / and thoughe he sayd maxime may be thought very streyt to the sayd tenauntes: yet is it for to be fauoured as moche as may be reasonably / bycause it helpeth moche the comon welthe / for it hurteth the comon welthe greately whan wodes and houses ben destroyed / & if they shulde answere for no waste / but for waste done by them selfe there myght be waste done by straungers by theyr cōmaūdemēt or assent in suche colourable maner that they ī the reuercion shulde neuer haue ꝓfe of theyr assent.

I am cōtent thyne opinion stande for this tyme / and I praye the nowe procede to a nother ques­tion.

❧ The fourth question of the student. The .v. Chapitre.

If he that is the very heyre be certified by the ordinarie bastarde: and after bryng an accion as heyre agaynste an other ꝑsone / whether may any man knowyng the trouthe be of counsayle with the tenaunt and plede the sayd certi­ficate agaynst the demaundaunt by conscience or nat.

Is the lawe in this case that al other against whome the demaundaunt hathe tytle shall take aduā ­tage of this certificate as well as he at whose sute he is certified bastarde.

ye verely / & that for two causes / wher of the one is this. There is an old maxime in the lawe that a mischyfe shalbe rather suffred thā an inconueniēce / & than in this case if a nother writte shuld afterwarde be sent to a nother bysshope ī an other accion to certifie wether he were bastarde or nat / peraduenture that bysshope wolde certifie that he were mulier / that is to say lawful­ly begotten and than he shulde recouer as heyre / and so he shulde in one selfe court be taken as mulier & bastarde / for auoydynge of whiche contrariosyte: the lawe wyll suffre no mo wrytes to go forth in that case / and suffreth also all men to take aduaun­tage of that certificate rather thā to suffre [Page] suche a contradicion in the courte whiche in the lawe called an inconueniēce / & the o­ther cause is bycause this certificate of the bysshope is the hyest trial that is ī the law ī this behalfe. But this is nat vnderstāde but where bastardy is layde in one that is ꝑty to the wryt / for if bastardy be layde in one that is estrāge to the writ as ī a vouch pray en ayde or suche other / than that ba­stardy shalbe tried by .xii. mē by which tri­all he ī whome the bastardy is layde shall nat be cōcluded bycause he is nat priue to the trial & may haue no attaīt / but he that is ꝑty to the issue may haue attaint / & therfore he shalbe cōcluded & none other but he & for as moche as the sayd maxime was or deyned to eschewe an incōueniēcy (as by­fore apꝑeth) it semeth that euery man ler­ned: may with cōsciēce plede the said certi­ficate for auoydyng therof / & gyue coūsaill therin to the ꝑty accordyng vnto the lawe for els the sayd incōueniēcy must nedely folowe. But yet neuertheles I do nat meane therby that the party may after whan he hath barred the demaūdāt by the sayd certificate reteine the lande in cōsciēce by reason of the sayd certificate / for though ther be no lawe to cōpel hym to restore it / yet I [Page 16] thynke well that in cōscience he is bounde to restore it / if he knowe that the demaun­daūt is the very true heyre: wherof I haue put diuerse cases lyke in the .xvii. chapi. of our fyrst dialogue ī latyn: but my entēt is that a mā lerned ī the lawe ī this case & o­ther lyke may with cōsciēce gyue his counsayle accordynge to the lawe in auoydyng of such thyngꝭ as the lawe thynke it shuld for a resonable cause be eschewed.

Though he that doth nat know whether he be bastarde or nat may gyue his coun­sayle & also plede the sayd certificate: yet I thynke that he that doth knowe hym selfe to be the very true heyre may nat plede it / & that is for two causes. Wherof the one is this. Euery man is bounde by the lawe of reason to do as he wolde be done to / but I thynke that if he that pledeth that certifi­cate were in lyke case: he wold thynke that no mā knowyng the sayd certificate to be vntrue myght with conscience plede it a­gaynst hī / wherfore no more may he plede it agaynst none other. The other cause is this / although the certificate be pleded: yet is the tenaunt boūden in conscience to make restitucion therof as thou hast sayd thy selfe / & thā in case that he wolde nat make [Page] restitucion / than he that pleadeth the plee: shulde renne therby in lyke offence / for he hathe holpen to set the other man in suche a liberty that he may chose whether he wil restore the lāde or nat / and so he shulde put hym selfe to the ieoparty of a nother mannes conscience. And it is wryten Ecclesia­sti .iii. Qui amat periculum: peribit in illo. That is / he that wylfully wyll put hī selfe in ieoparty to offende: shal perysshe therin / and therfore it is the surest way to eschew perylles / fro hym that knoweth that he is heyre: nat to plede it / and as for the incon­uenience that thou sayest must nedely folowe but the certificate be pleded: as to that it may be answered that it maye be pleded by some other that knoweth nat that he is very heyre / and if the case be so farre put that there is none other lerned there but he: than me thynketh that he shall rather suffre the sayd inconuenience than to hurt his owne conscience / for alwaye charite be­ginneth at him selfe & so euery man ought to suffre all other offences rather than he hym selfe shulde offende. And nowe that in this case I pray the procede to thou knowest myne opinion a nother question.

❧The .v. question of the student. The .vi. Chapitre.

Whether may a man with cō science be of counsayle with the playntyfe in an accion of the comon lawe knowynge that the defendaunt hathe suf­ficient mater in conscience wherby he may be discharged by a Sub pena in the chaū ­cery whiche he can nat pleade at the comō lawe or nat.

I praye the put a case therof in certeyne for els the questiō is very generall.

I wyll put the same case that thou puttest ī our fyrste dialogue in latyne the .x. Chapitre. that is to say / if a man bounde in an obligacion / pay the money & taketh none acquitaunce so that by the comon lawe he shalbe com­pelled to pay the money agyne for suche cō sideracion as appereth in the .xv. chapitre of the sayd dialogue where it is shewed euidently howe the lawe in that case is made vpon a good reasonable groūde moche ne­cessary for all the people / howe be it that a man may somtyme throughe his owne defaut take hurte therby / wherin I pray the shewe me thyne opinion

this case semeth to be lyke to the case that thou haste put nexte byfore this / & that he that [Page] knoweth the payment to be made doth nat as he wolde be done to if he gyue coūsayle that an accion shulde be taken to haue it payd agayne.

If he be sworne to gyue counsayle accordynge to the lawe as sergeauntes at the lawe be: it semeth he is bounde to gyue counsayle accordyng to the lawe / for els he shulde nat ꝑfourme his othe.

In those wordes (accordyng to the lawe) is vnderstande the lawe of god and the lawe of reason: as well as the lawe & customes of the realme / for as thou hast said thy selfe ī our fyrst dialogue in latyn that the lawe of god and the lawe of reason be two especiall groundes of the lawes of Englād. Wherfore as me thīketh he may gyue no coūsaile (sauing his othe) neyther agaynste the lawe of god nor the lawe of reason / and certayne it is that this article that is to say / that a man shall do as he wolde done to: is groūded vpon both the sayd lawes. And fyrst that it is groun­ded vpon the lawe of reason: it is euidēt of it selfe. And in the .vi. Chap. of saynt Luke it is said. Et prout vultis vt faciant vobis homines: et vos facite illis similiter. That is to saye / all that ye wyll that other men shulde do to you: do you to them / & so it is [Page 18] groūded vpon the lawe of god / wherfore: if he shulde gyue coūsayle agayne the defen­daūt in that case: he shulde do agaynst both the sayd lawes.

If the defendaunt had none other remedy but at the comon lawe: I wolde agree well it were as thou sayest / but in this case he maye haue good remedy by a Sub pena / & this is the waye that shall induce hī directly to his Sub pena / that is to say / whā it appereth that the playntyfe shal recouer by the law.

Though the defēdāt may be discharged by Sub pena / yet the bryngyng ī of his ꝓfes there wyll be to the charge of the defēdāt / & also the ꝓfes may dye or they come in. Also ther is a groūde ī the lawe of reasō / qd nihil possimꝰ cōtra veritatem / that is / we may do nothīg agaīst the trouth / & syth he knowethe it is trouthe that the money is paid he may do nothīg agaīst the trouth & if he shuld be of cōsayle with the plaītyf he must suppose & auerre that it is the verey due det of the plaītyfe / & that the defēdaūt withholdeth it fro hī vnlawfully / which he knoweth hī selfe to be vntrue / wherfore he may nat with cōsciēce ī this case be of coū sayle with the plaītyfe / knowyng that the plaītyf is paied al redy / wherfor if thou be [Page] contented with this answere I praye the procede to some other question.

I wyll with good wyll.

❧The .vii. question of the student. The .vii. Chapitre.

A man maketh a feoffement to the vse of hym and of his heyres / & after the feoffour putteth in his bees­tes to manure the grounde and the feoffe taketh them as damages fesaunt and putteth them in pounde / and the feoffour bryngeth an accion of trespasse agaynste hym for entryng into his grounde. &c̄. whether may any man knowyng the sayd vse be of coūsayle with the feoffe to auoyde that ac­cion.

Maye he by the comon lawe auoyde that accion seynge that the feoffour ought in conscience to haue the ꝓfytes.

ye verely / for as to the comon lawe the hole interest is ī the feoffe and if the feoffe wyll breke his conscience & take the profytes: the feoffour hath no re­medy by the comon lawe: but is dryuen in that case to sue for his remedy by Sub pena for the profytes / and to cause hym to refeoffe him againe / and that was somtyme the moste comon case where the Sub pena was sued / that is to say / byfore the statute [Page 19] of Rycharde the thyrde but syth that sta­tut the feoffour may lawfully make a feof­fement. But neuertheles for the profytes receyued: the feoffour hathe yet no remedy but by Sub pena as he had byfore the said estatute. And so the supposell af this acciō of trespasse is vntrue in euery poynt as to the comon lawe.

Thoughe. the accion be vntrue as to the lawe: yet he that sueth it ought (in conscience) to haue that he demaundeth by the accion / that is to say / damages for the profytes / and as it semeth no man may with conscience gyue counsayle agaynste that he knoweth con­science wolde haue done.

Thouhe conscience wolde he shulde haue the profy­tes / yet conscience wyll that for the attay­ning therof the feoffour shulde make an vntrue surmyse. Therfore agaynste that vn­true surmyse euery man may with consci­ence gyue his counsayle / for in that doyng he resysteth nat the playntyfe to haue the profytes / but he withstādeth hym that he shulde nat maintaine an vntrue accion for the profites. And it suffiseth nat ī the lawe ne yet in conscience as me semethe that a man haue ryghte to that he sueth for / but that also he sue be a iust meanes / and that [Page] he haue bothe good ryght and also a good and a true cōueyaūce to come to his right for if a man haue ryght to landes as heyre to his father and he wyll bryng an accion as heyre to his mother that neuer had ry­ght / euery man may gyue coūsayle agaīst that accion thoughe he knowe he haue ry­ght by an other meanes / & so as me thyn­keth he may do in dilatories / wherby the partie may take hurte if it were nat plea­ded / thoughe he knowe the plaintyfe haue ryght as if the ꝑtie or the towne be misna­med / or if the degrees in wryttes of entre be mistaken / but if the partie shuld take no hurte by admittynge of a dilatorye there he that knoweth that the playntyfe hath ryght may nat pleade that dilatorie with conscience as in a Forme done to pleade in abatement of the wrytte bycause he hathe nat made hym selfe heyre to hī that was last seased / or in a wrytte of ryght for that the demaundaunt hath omitted one that tended right ne suche other / ne he may nat assent to the castyng of an Essoyne nor proteccion for hym if he knowe that the demā daūt hathe ryght / ne he maye nat vouche for him excepte it be that he knoweth that the tenaunt hathe a true cause of voucher [Page 20] and of lyen / and that he doth it to brynge hym therto / & in lykwyse he may nat pray in age for hym: oneles he knowe the praye haue good cause of voucher and lyen ouer / or that he knowe that the pray hath som­what to pleade that the tenaunt maye nat pleade as vyllen age in the demaundaunte or suche other.

Thoughe the playntyfe hath brought an accion that is vntrue and nat mayntenable in the lawe / yet the defendaunte dothe wronge to the playntyfe in the withholdynge of the pro­fytes as wel byfore the accion brought as hangynge the accion / and that wronge as it semeth the coūsaylour doth mayntaine / and also sheweth hym selfe to fauoure the partie in that wronge whan he gyueth cō ­cell agaynst the accion.

If the playntyfe do take that for a fauoure and a maynteynaūce of his wronge: he iugethe ferther than the cause is gyuen / so that the coūsaylour do no more but gyue coūsayle agaynst the accion / for though he gyue hī coūsayle to withstande the acciō for the vntruth of it / & that he shulde nat cōfesse it & to make therby a fine to the kyng without cause / yet it may stande with: that he may gyue counsayle to the partie to yelde the [Page] profytes / and therfore I thinke he may in this case of counsayle with hym at the co­mon lawe and be agaynst hym in the chaū cery and in eyther courte gyue his coūsayl without any contrariosite or hurte of con­science / and vpon this grounde it is that a man may with good conscience be of coū sayle with hym that hath lande by discent or by a discontinuaūce withouten tytle / if he that hathe the ryght brynge nat his accion accordynge to the lawe for the recouerynge of his ryght in that behalfe.

❧ The seuenth question of the studente. The .viii. Chapitre.

If a man take a distresse for dette vpon an obligaciō or vpon a cō ­tracte or suche other thynge that he hath right title to haue: but that he ought nat by the lawe to distrayne for it / and ne­uertheles he kepeth the same distresse in pounde tyll he be payed of his dutye / what restitucion is he bounde to make in this case / whether shall he repay the money by­cause he is come to it by an vnlawfull me­nes or onely to restore the partye for the wrongfull takyng of the distres or for neyther [Page 21] I pray you shewe me.

what is the lawe in this case.

That he that is distrayned may brynge a speciall accion of trespasse agaynst hī that distreyned / for that he toke his beestꝭ wrōg fully and kept them tyll he made a fyne / & therfore he shal recouer that fyne in damages as he shal do for the residue of trespas for that takyng of the money by suche cō ­pulcion is taken in the lawe but as a fyne wrongfully taken / thoughe it be his duete to haue it.

yet though he may so recouer: me thynketh that as to the re­payment of the money he is nat bounde therto in cōscience so that he take no more thā of ryght he ought to haue / for though he come to it by an vniust meane / yet whā the money is payed hym it is his of ryght and he is nat bounde to repaye it oneles it be recouered as thou sayd / and than whan he hathe repayed it he is as me thynkethe restored to his fyrst acciō / but to the rede­lyuere of the beestes with suche damages suche hurte as he hathe by the distresse. I suppose he is bounde to make recompence of them in conscience without compulcion or sute in the lawe / for thoughe he myght lawfully haue sued for his duete in suche [Page] maner as the lawe hathe ordred / yet I a­gre well that he maye nat take vpon hym to be his owne iuge and to come to his duty agaynst the order of the lawe / and ther­fore if any hurte come to the partie by that disorder he is bounde to restore it. But I wolde thynke it were the more doute if a mā toke such a distresse for a trespasse done to hym and kepeth the distresse tyll amen­des be made for the trespasse / for ī that cas the damages ben nat in certayne but be arbitrable eyther by assent of the parties or by .xii. men / and it semeth that there is no assēt of the partie in this case specially no fre assent / for that he dothe: is by compulcion and to haue his dystres agayne / and so his assent is nat moche to be pondered in that case / for all is the assessynge of hī that toke the distresse / and so he hathe made hī selfe his owne iuge / and that is prohibited in all lawes / but in that case where the di­stresse is takē for dette: he is nat his owne iuge / for the dette was iuged incertaine by fore by the fyrst contracte / & therfore some thynke great diuersite betwene the cases.

By that reason it semeth that if he that distrayneth in the fyrste case for the dette take any thynge for his damagꝭ [Page 22] that he is bounde in conscience to restore it agayne / for damagꝭ be arbitrable and nat certayne no more than trespasse is / & me semeth that both in the case of trespasse and dette he is boūde in cōsciēce to restore that he taketh / for thoughe he ought in ryghte to haue lyke sūme as he resceyueth / yet he ought nat to haue that money that he re­ceyueth / for he came to that money by an vniust menes / wherfor it semeth he ought to restore it agayne.

And if he shuld be cōpelled to restore it againe: shuld he nat yet (for that he receyued it ones) be barred of his fyrst accion nat withstādyng the repaymēt.

I wyll nat at this tyme clerely assoyle the that question / but this I wyll say that if any hurte come to hym therby: it is through his owne defaut for that he wolde do agaynst the lawe / but neuertheles a lytell I wyll say to thy que­stiō / that as me semeth whā he hath repayed the money that he is restored to his first acciō. As if a mā cōdēpned in an accion of trespasse pay the money / & after the defen­daūt reuers the iugement by a wrytte of errour and haue his money repayed / than the playntyfe is restored to his fyrst acciō. And therfore if he that ī this case toke the [Page] money: restored that he toke by the wrong full distresse: or that he ordred the mater so liberally that the other murmure nat necō playne nat at it / me semethe he dyd verey well to be sure in conscience: and therfore I wolde aduyse euery man to be wel ware howe he distrayneth in suche case agaynst the lawe.

Thy counsayle is good / and I note moche in this case that the party may haue an accion of trespasse agaynste hym that distrayned so that he is taken in the lawe but as a wrong doer / and therfore to pay the money agayne is the sure way as thou hast sayd byfore.

And I praye the nowe shewe me for what thynge a man maye lawfully distrayne as thou thynkest.

❧For what thyng a man may lawfully distrayne. The .ix. Chapitre.

A mā may lawfully distrayn for a rent seruice and for all maner of seruices / as homage / fealty / escuage / sute of court / relyefs and suche other. Also for a rent reserued vpon a gyfte in tayle / a lease for terme of lyfe / for yeres / or at wyl / if he reserue the reuercion: the feoffour shal [Page 23] distrayne of comon ryght though there be no distresse spoken of. But in case a man make a feoffement & that in fee by inden­ture reseruyng a rent he shal nat distrayne for that rent oneles a distres be expressely reserued / and if the feoffemēt be made with outen dede reseruyng a rent that reseruacion is voyde in the lawe / and he shall haue the rent onely in conscience and shal nat distrayne for it / & lyke lawe is where a gyfte in tayle or a lease for terme of lyfe is made the remayndre ouer in fee reseruyng a rent that reseruacion is voyd in the lawe. Also if a man seased of landes for terme of lyfe graunteth away his hole estate reseruyng a rent / that reseruacion is voyd ī the lawe without it be by endenture / & if it be by en­denture: yet he shall nat distrayne for the rent but a distresse be reserued. Also for a merciamente in a leete the lorde shall di­strayne. But for a merciament in a courte Baron he shal nat distrayne. Also if a man make a lease at Mighelmasse for a yere / reseruynge a rent payable at the feaste of the Annunciacion of our Lady and saynt Michell the Archaungell / in that case he shal distrayne for the rent due at our Lady aye / but nat for the rent due at Mighel­masse [Page] / bycause the terme is expired. But if a man make a lease at the feast of Christe­masse for to endure to the feast of Christe­masse next folowynge / that is to say for a yere a reseruyng a rent at the aforsayd feast of the Annunciacion of our Lady & saynte Michel the Archaungell: there he shall di­strayne for both the rentes as long as the terme continueth / that is to say tyll the a­forsayd feast of Christemasse. ¶Also if a man haue lande for terme of lyfe of Iohā at Noke / and maketh a lease for terme of yeres reseruynge a rente / that rente is be­hynde / and Iohan at Noke dieth / there he shal nat distrayne bycause his reuercion is determined. ¶ Also if he to whos vse feffes ben seased maketh a lease for terme of ye­res / or for terme of lyfe / or a gyfte in tayle reseruynge a rent / there the reseruacion is good and the lessour shall distrayne.

¶Also if a towneshype be amercied & the neyghboures by assent assesseth a certaine summe vpon euery inhabitaunt / and agre that if it be nat payed by suche a day: that certayne persones therto assigned shall di­strayne. In this case the distresse is lawe­ful. If lorde and tenaūt be / and the tenaūt dothe holde of the lorde by fealtye & rent / & [Page 24] the lorde dothe graunt awaye the fealtie reseruynge the rent / and the tenaunt attorneth in this case / he that was lorde maye nat distrayne for the rent / for it is become a rent secke. But if a man make a gyfte in tayle to a nother reseruyng fealty and cer­tayne rent / and after that he graunteth a­waye the fealty reseruyng the rent and the reuercion to hym selfe / in this case he shall distrayne for the rent / for the graūte of the fealty is voyde / for the fealty can nat be seuered fro the reuercion. Also for heryof seruice the lorde shall distrayne and for heriot custome he shall sease and nat distrayne.

Also if a rent be assigned to make a parti­cion or assignemente of dower egall he or she to whome that rent is assigned maye distrayne and in all these cases aboue sayd where a man may distrayne he may nat distrayne in the nyght / but for damages fe­saunt / that is to say / where beestes do hurt in his grounde he may distrayne in the nyght. Also for wastes / for repera­cions / for accomptes / for det­tes vpon contractes or suche other no mā may lawfully distrayne.

❧The .viii. question of the student. The .x. Chapitre.

If a man do a trespasse and after make his executours and dye byfore any amendes made whether be his executours boūde in coscience to make amendes for the trespasse if they haue sufficient goodes therto though there be no remedy agaynst them be the lawe to compel them to it.

It is no doute but they are bounde therto in cōscience byfore any other dede in charite that they may do for hym of theyr owne deuotion.

Than wolde I wete if the testatour made legacies by his wyll / whether the executo­res be boūd to do fyrst / that is to say / to make amendes for the trespasse or to paye the legacies / in case they haue no goodes to do bothe.

To pay legacies. For if they shulde fyrst make recompēce for the trespasse / and than haue nat sufficiente to pay the legacies: they shulde be taken ī the lawe as wasters of theyr testatours goodꝭ for they were nat compellable by no lawe to make amēdes for the trespasse bycause euery trespas dyeth with the persone / but the legacies they shulde be cōpelled by the lawe spirituall to fulfyl / and so they shulde [Page 25] be compelled to paye the legacies of theyr owne goodes / and they shall nat be cōpel­led therto by no lawe ne conscience / but if the case were that he leue sufficient goodes to do both: thā me thynketh they be boūde to do both / & that they be boūden to make amendes for the trespasse byfore they may do any other charitable dede for the testa­toure of theyr owne mynde as I haue said byfore / excepte the funerall expēces that be necessary whiche muste be alowed byfore all other thynges.

And what the prouyng of the testament.

The ordinarie may nothyng take by con­science therfore / if there be nat sufficiēt goodes besyde for the funeralles to pay the dettes and to make restitucion. And in lyke wyse the executours ben bounde to pay dettes vpon a simple contracte byfore any o­ther dede of charite that they maye do for theyr testatoure of theyr owne deuocion thoughe they shal nat be compelled therto by the lawe.

And whether thinkest thou that they be bounde to do fyrste / that is to say / to make amendꝭ for the tres­passe or to pay the dettes vpon a simple cō tracte.

To pay the dettes for that is certayne and the trespas is arbitrable.

Than for the playner de­claracion of this matter and other lyke I praye the shewe me thy mynde by what lawe it is that a man maye make execu­tours and that the executours if they take vpon them be boūde to perfourme the wyl and to dispose the goodꝭ that remayne for the testatour.

I thynke that it is by the lawe of reason.

And me thynketh it shulde be rather by the cu­stome of the realme.

In al cō ­treys & in all landes they make executours

That semeth to be rather by a generall custome after that the lawe and custome of propertie was brought in than by the lawe of reason / for as longe as all thynges were in comon: there were no ex­ecutours ne wylles ne they neded nat thā / and whan property was after brought in: me thynketh that yet makynge of execu­tours & disposyng of goodꝭ by wyll after a mānes deth folowed nat necessarely there vpō / for it myght haue ben made for a law that a man shulde haue had the ꝓpertie of his goodꝭ only duryng his lyfe / & that thā his dettes payed / all his goodꝭ to haue ben lefte to his wyfe & clyldren or nexte of his kynne without any legacies makyng ther [Page 26] of & so myght it nowe be ordeyned by sta­tute / & the statut good & nat against reasō / wherfor it appereth that executours haue no auctorite by the law of reasō but by the lawe of man. And by the olde lawe and custome of this realme a man may make executours and dispose his goodꝭ by his wyl / & than his executours shall haue the execucion therof & his heyres shal haue nothīg / but if any particuler custome helpe / & the executours shall also haue the hole possession ad disposicion of all his goodes and ca­tels / as well reall as personal / thoughe no worde be expressely spoken in the wyl that they shall haue them / and they shall haue also accions to recouer al dettes due to the testatour thoughe all dettes and legacies of the testatour by payed byfore / and shall haue the disposicion of them to the vse of the testatour and nat to theyr owne vse / & so me thynketh that the auctorite to make executours and that they shall dispose the goodes for the testatour: is by the custome of the realme. But than I thynke as thou sayest that by the lawe of god they shalbe bounde to doo that fyrste / that is to the moste profite of the soule of theyr testatour where the disposicion therof is lefte to [Page] theyr discrecion / and that I agre wel is to pay dettes vpon contractes and to make amendes for wrōges done to the testatour thoughe they be nat compelled therto by the lawe and custome of the realme if ther be none other dette nor legacie that they be bounde to paye by the lawe / but if two seuerall dettes be payable by the lawe: thā which dette they shall do fyrst in consciēce: I am somwhat in doute.

Let vs fyrste knowe what the comon lawe is therin.

The comon lawe is that if the testatoure owe .x. li. to two men seuerally by obligacion or by suche other maner that an accion lyeth agaynst his executours therof by the lawe / and he leueth goodes to pay the one and nat both / that in that case he that can fyrst optaine his iugement agaynst the executours shal haue execucion of the hole / and the other shall haue nothynge / but to whiche of them he shall in conscience owe his fauoure: the co­mon lawe treateth nat.

Ther in muste be considered the cause why the dettes beganne / and than he must after cō science bere his lawfull fauoure to hī that hathe the clerest cause of dette / and if both haue lyke cause: than in cōscience he muste [Page 27] bere his fauoure where is moste nede and greatest charite.

May the ex­ecutours in that case delay that acciō that is fyrst taken if it stande nat with so good conscience to be payed as a nother dette wherof no accion is brought and procure that an accion may be brought therof and than to confesse that accion / that he maye so haue execucion / and thā the executours to be discharged agaynst the other.

Why may he nat in that case pay the other without accion and so be discharged in the lawe agaynst the fyrste.

No verely for after an accion is taken the executoure maye nat ministre the goodes so / but that he leue so moch as shall pay the dette wherof the accion is ta­ken / & if he do he shall paye it of his owne goodes / excepte a nother recouer and haue iugement agaynst hym hangynge that accion and that without couyn.

Thā to answere to thy question I thynke that by delayes that be lawfull as by Es­soyne / emperlaunce / or by a Dilatory plee in abatement of the wrytte that is true / he may delay it / but he may plede no vntrue ple to preferre the other to his duetie. But I pray the what is the lawe of legacies restitucions [Page] and dettes vpon cōtractes that perease ought rather after charite to be payed thā a dette vpon an obligaciō what may the fauoure of the executoures do in those cases.

Nothynge for if they eyther perfourme legacies / make restitucions / or paye dettes vpon contractes & kepe nat sufficient to paye dettes whiche they are compellable by the lawe to paye / that shalbe taken as a deuastauerunt bona testatoris / that is to saye / that they haue wasted the goodes of theyr testatour and therfore they shalbe compelled to paye the dettes of theyr owne goodes / and so it is if they paye a dette vpon an obligacion wherof the day is yet to come thoughe it be the clerer dette & that it be the more charite to haue it payed.

yet in that case if he to whome the dette is al redy owynge for­bere tyl after the daye of the other obliga­cion is paste / than he may paye him with­out daunger.

That is true if there be no accion taken vpon it & though there be / yet if that acciō may be delayd by lawfull meanes as thou hast spoken of byfore: tyll after the day and than an accion is taken vpon it than may the executours confesse that accion and than after iuge­ment [Page 28] he may paye the dette without daū ­ger of the lawe.

Is nat that confessyng of the accion so done of purpose a couyn in the lawe.

No vere­ly / for couyn is where the acciō is vntrue / and nat where the executours bere a law­full fauoure.

The ordinary vpon the accompte in all the cases byfore re­herced wyl regarde moche what is best for the testatour.

But he maye nat dryue them to accompte agaynst the order of the comon lawe.

❧The .ix. question of the student. The .xi. Chapitre.

A mā is indetted to another vpon a simple contracte in .xx. li. and he makethe his wyll and byquetheth xx. li. to Henry harte and dyeth and leueth goodes to his executours onely to bury hī with / ano to perfourme the sayd legacie / & after the sayd executoures delyuer the goodes of theyr testatour in perfourmaunce of the sayd byquest / whether is he to whome the byquest is made: bounde in conscience to pay the sayd dette vpon the simple con­tracte to the sayd Henry harte or nat.

Is he nat bounde therto by the [Page] lawe.

No verely.

And what thynkest thou he is in consciēce

I thynke that he is nat boūde therto in conscience / for he is neyther ordinarie administratour / nor executour. And I haue nat herde that any man is bounde to pay dettes of any man that is decessed / but he be one of those thre / for the goodes that the testatour lefte to the executoures were neuer charged with the dette / but the ꝑsone of the testatour whyle he lyued was onely charged with the dette and nat his goodꝭ / & his executours that represent his estate after his deth hauynge goodes therto of the testatoures be charged also with the dettes and nat the goodes. And ther­fore if an executour gyue awaye or sell all the goodes of the testatoure or otherwyse waste them: he that hathe the goodꝭ is nat charged with the dettes in lawe nor con­science / but the executours shalbe charged of theyr owne goodes / and in lyke wyse if Iohan at Noke owe to A. B. xx. li. and A. B. oweth to C.D. xx. li. and after A.B. dyeth intestate hauynge none other goodes but the sayd .xx. li. whiche the sayd Iohan at Noke oweth hī / yet the sayd C. D. shall haue no remedy agaynst the sayd Iohan [Page 29] at Noke / for he standeth nat charged to hī in lawe nor conscience. But the ordinarie in that case muste cōmitte administracion of the goodes of the sayd A. B. And the sayd administratour must leuy the money of the sayd Iohan at Noke and paye it to the sayd C.D. And the sayd Iohan at N. shall nat pay it hym selfe bycause he is nat chargeth therwith to hī / and no more me thynketh ī this case that he to whome the byquest is made is neyther chargeth to hī that the money was owynge to ī lawe nor conscience.

Than shewe me thy mynde by what lawe it is groūded as thou thynkest that executores be boūde to paye dettes byfore legacies / whether is it by the lawe of god / or by the lawe of resō / or by the lawe of man as thou thynkest.

I thynke that it is both by the lawe of reasō and by the lawe of god / for reason wyll that they shal do fyrst that is best for the testatour / and that is to pay dettes that his testatour is bounde to pay byfore legacies that he is nat bounde to.

And also by the lawe of god they are boūd to pay the dettes fyrste / for sythe they are bounden by the lawe of god to loue theyr neyghboure / they are bounde to do for him [Page] that shall be best for hym whan they haue taken the charge therto / as executours do whan they agre to take the charge of the wyll of theyr testatour vpon them / and it is better for the testatour that his dettes be payed: wherfore his soule shal suffre paine: than that his legacies be ꝑfourmed / wherfore he shall suffre no payne for the nat ꝑ­fourmynge of them. And that is to be vn­derstande where the legacie is made of his owne fre wyl and nat where it is made as a satisfaccion of any dute. And after the sayenge of saynte Gregory / the very true proffe of loue is the dede. But this man is nat ī that case / for he neuer toke the charge vpon hym to paye the dettes of the testa­tour. And therfore he is nat bounde to thē in lawe nor conscience as me semeth. But rather the executoures shulde haue bene ware or they had paied the legacies seyng there were dettes to paye.

The executours might none otherwise haue done in this case but to pay the legacies for thē they shulde haue ben compelled by the law to haue payed / and so they coulde nat haue bene to haue payed the dette vpon a con­tracte. And therfore they dyd well in per­fourminge [Page 30] of the legacie / but he to whome the legacie was made ought nat to haue taken them / but ought in conscience to haue suffred them to haue gone to the payment of the dette / & sythe he dyd nat so but toke them where he had no ryght to them / it semeth that whan he toke them / he toke thē with the charge in conscience to paye the dette / for syth the executours were compellable by the lawe to perfourme the byquest and nat to paye the dette / therfore whan they perfourmed that byqueste / they were discharged therby agaynste hym that the dette was owynge to in the lawe and con­science and than the charge rested vpon hī that toke the goodes where he ought nat in conscience to haue taken them / but if it had ben a dette vpon an obligacion or such other dette / whervpō remedy myght haue ben had agaynste the executoures by the lawe / there I suppose that thoughe the executoures had perfourmed the legacy that yet he to whome the legacye was made and perfourmed had nat bene charged in conscience to the payment of the dette / for the executoures stode styll charged there to of theyr owne goodes / and he to who­me that byqueste was made was [Page] onely bounde in consciende to repaye that he receyued to the executoures bycause he had no ryght to haue receiued it / for agaīst the executours he had no ryght therto.

Than it semeth in this case that in lyke wyse he to whome the bequest was made shulde repay that he receiued to the executours / and than they to pay it ra­ther than he.

The executours haue no ferther medlynge with it as this case is / for whan they perfourmed the by­quest they were discharged agaynst bothe the other in lawe and conscience / and also he to whome the byqueste was made stode nat in this case charged to the executours / for as agaynste them he had good tytle by the lawe / and so this charge standeth only agaynste hym that the dette is owyng to / and the same lawe that is in this case vpō a dette vpon a contracte is if the testatour had done a trespasse whervpō he ought to haue made restitucion / that is to say / that he to whome the byquest is made is boūde to make the amendes for the trespasse / for it shulde be no discharge to hym to paye it agayne to the executoures without they payed it ouer / and it were vncertayne to hī whether they wolde paye it or nat. And [Page 31] therfore to be out of peryll: it is necessarye that he paye it hym selfe / and than is he surely discharged agaynst all men.

❧The .x. question of the student. The .xii. Chapitre.

A man seased of certayne lande in his demeane as of fee / hathe issue two sones and dyeth seased / after whose dethe a straunger abateth / & taketh the profytes / and after the eldest sone dieth without issue and his brother bringeth an assise of Mortdaūcestre as sone and heyre to his father nat makynge mencion of his brother and recouereth the lande with da­mages fro the deth of his father as he may wel by the lawe / whether ī this case is the yonger brother bounde in cōscience to pay to the executours of the eldest brother the value of the profytꝭ of the sayd lande that belonged to the eldest brother in his lyfe or nat.

What is thyne opinion therin.

That lyke as the said profytes belonged of right to the eldest brother in his lyfe / and that he had full auctorite to haue released as well the ryghte of the sayd lande as of the sayd ꝓfytꝭ / whiche [Page] release shulde haue ben a clere barre to the yonger brother for euer. That the ryght of the said damages whiche be in the lawe but a chatell / bylonge to his executoures and nat to the heyre / for no maner of cha­tell neyther reall nor parsonall shall nat after the lawe of the realme discende vnto the heyre.

Thou saydest to the case next byfore / that it is nat of the lawe of reason that a man shall may make executours / and dispose his goodes by his wyll / and that the executoures shall haue the goodes to dispose but by the lawe of man / and if it be lefte to the terminacion of the lawe of man. Thā in suche cases as the lawe gyueth suche chatelles vnto the executoures / they shall haue good ryghte vnto them / and in suche cases as the lawe takethe suche chatelles frome them: they bene ryghtfully taken frome them. And therfore it is thoughte by many that if a man sue a wrytte of ryghte of warde of awarde that he hathe by his owne fee and dyeth hangynge the wrytte / and his heyre sue a resomons accordynge to the statute of Westmester seconde / and recouereth: that in that case the heyre shal enioye the war­deshype agaynste the executoures / and yet it is but a chatel / and they take the reason [Page 32] to be bycause of the sayd estatute / and so myghte it be ordeyned by statute that all wardes shulde go to the heyres and nat to the executoures. Ryght so ī this case syth the lawe is suche that the yonger brother shall in this case haue an assyse of Mort dauncestre as heyre to his father: nat ma­kynge any mencion of his elder brother & recouer damages as well ī the tyme of his brother as in his owne tyme: it appereth that the lawe gyueth the right of these damages to the heyre / and therfore no recompence ought to be made to the executoures as me semeth / and it is nat lyke to a wryt of Ayel: where as I haue lerned ī Latyn (syth our fyrste dialogue) the demaundaūt shall recouer damages onely fro the deth of his father if he ouer lyue the Ayel / and the cause is for the demaūt though his Ayel o­uer lyued his father must of necessite make his cōueyaūce by his father & muste make hī selfe sone & heyre to his father & cosyn & heyre to his Ayel / & therfore in that case if the father ouer liued the Ayel: the abatour were boūden in cōscience to restore to the executours of the father the profytes rēne in his tyme / for no lawe taketh thē fro hī / but otherwyse is ī this case as me semeth.

If the yonger brother in this case had entred into the lande without ta­kyng any assyse of Mort dauncestoure as he myght if he wolde / to whome were the abatour than bounden to make restituciō for those profytes as thou thynkest.

To the executours of the el­dest brother / for ī that case there is no law that taketh them from them / and therfore the general grounde whiche is that al chatels shall go to the executoures: holdeth in that case / but in this case that grounde is broken and holdeth nat for the reason that I haue made byfore / for comonly there is no general grounde in the lawe so sure: but that it fayleth in some particuler case.

❧The .xi. question of the student. The .xiii. Chapitre.

A man seased of lande in fee taketh a wyfe / and after alieneth the lande and dyeth / after whose deth his wyfe asketh her dower and the aliene refu­seth to assigne it vnto her / but after she as­keth her dower agayne and he assigneth it vnto her / whether is the alme in this case bounde in conscience to gyue the woman [Page 33] damages for the profites of the land after her thyrde parte fro the dethe of her hus­bande / or fro the fyrst request of her dower or neyther the one nor the other.

what is the lawe in this case.

By the lawe the woman shall recouer no damagꝭ / for at the comō lawe the demaū ­daunt ī a wrytte of dower shulde neuer ha­ue recouered damages. But by the statute of Marton yt is ordeyned that where the husband dyeth seased that the womā shall recouer damages whiche is vnderstande the profytes of the land sythe the dethe of her husband / & suche damagꝭ as she hathe by the forberynge of it / but in this case the husbande dyed not seased / where fore she shall recouer no damages by the lawe

yet the lawe is that immedia­tely after the dethe of her husbande the wyfe ought of ryght to haue her dower yf she aske it thoughe her husbande died not seased.

That is trewe.

And sithe she ought to haue her dower fro the dethe of her husbande yt semeth that she ought in cōscience to haue also the profytes fro the dethe of her hus­bande though she haue no remedy to come to them by the lawe / for me thynketh that [Page] that this case is lyke too a case that thou puttest in our fyrste dyalogue in latyn the xvii. chapytre. That if a tenaunte for ter­me of lyfe be dysseased & dye / & the dissea­soure dyeth / and his heyre entreth and ta­keth the profytes / & after he in the reuer­cyon recouereth the lādꝭ against the hey­re as he ought too do by the lawe / that in that case he shall recouer no damages by the lawe. And yet thou dydest agree that ī that case the heyre is bounde in concience to pay the damages to the demaundaunt & so me thynketh ī this case that the feoffe oughte in cōscyence to paye the damages fro the deth of her husband seinge that immediately after his deth she ought too ha­ue her dower.

Thoughe she oughte too be endowed immediately after the dethe of her husbande / yet she can lay no defaute in the feoffe tyll she demaun­de her dower vppon the grounde / and that the tenaunte be not there too assigne it / or if he be there that he wyl not assigne it / for he that hath the possessyon of lande wher­vnto any womā hath tytle of dower hath good auctorytye as agaynste her to take the ꝓfytes tyll she requyre her dower for euery womā that demaundeth dower af­fermeth [Page 34] the possessyon of the tenaunt as agaynste her and therfore all thoughe she recouer it by accyō she leueth the reuercy­on alwey in him agaynst whome she reco­uereth thoughe he be a dysseasour & bryn­geth nat the reuercyon by her recouery to hym that hath righte as other tenauntes for terme of lyfe do. And for this reason it is that the tenaunte in a wrytte of dower where the husbande dyed seased if he ap­pere the fyrst day may saye to excuse hymselfe of damages that he is and all tymes hathe ben redy to yelde dower if it had ben demaunded / & so he shall nat be recey­ued to do ī a wryt ofcosynage nether ī the case that thou remembrest aboue / for in bothe cases the renauntes be supposed by the wrytte to be wronge doers / but it is nat so in this case / and so me thynketh it clere that the feoffe ī this case shall nether be bounde by lawe nor conscience to yelde damages for the tyme that passed byfore the requeste / but for the tyme after the re­queste is greater doute / howe be it some thynketh hym nat there bounde to yelde damages bycause his tytle is good as is sayd byfore and that it is her defaute that she brought nat her accyon.

[Page]As vnto the tyme byfore the requeste I holde me contente with thyne opinion so that he assigne the dower whan he is re­quired / but whan he refuseth to assigne it: than I thynke hym bounde in conscience to yelde damages for bothe tymes though he shall none recouer by the lawe. And fyrste as for the tyme after the refusell: it appereth euidentely that whan he denied to assigne her dower: he dyd agaynste con­sciēce / for he dyd nat that of ryght to haue done by the lawe / ne as he wolde shulde haue ben done to him / and so after the request he holdeth her dower fro her wrongfully & ought in conscience to yelde damages therfore. And as to the defaute that thou assignest in her that she toke nat her acciō / that forceth lytel for acciōs nede nat / but where the partie wyll nat do that he ought to do of ryght. And for that he ought of right to haue done and dyd it nat / he can take none aduauntage / and than as to the damages byfore the request me thynketh hym also bounden to paye thē / for whan he was re­quyred to assygne dower and refused. It appereth that he neuer intēded to yelde dower fro the begynnyng / & so he is a wrong doer in his owne cōscience / and more ouer [Page 35] if the husbande dye seased the lawe is such that if the tenaunt refuse to assigne dower whan he is requyred wherfore the womā bryngeth a wrytte of dower agaynst him / that in that case the woman shall recouer damages as wel for the tyme byfore the request as after / and yet he ought nat ī that case after thyne opiniō to haue yelded any maner of damages if he had ben redy to assigne dower whan it was demaunded / and so me thynketh here.

The cause in that case that thou haste put is for that the statute is general that the demaū daūt shall recouer damages where the husbande dyed seased / and that statute hathe ben alwaye construed that where the te­naunt maye nat saye that he is and hathe ben alway redy to yelde dower. &c̄. that the demaundaunt shall recouer damages fro the dethe of her husbande. But in this case there is no law of the realme that helpeth for the damaundaūt neyther comon lawe nor statut / & forthermore though it myght be proued by his refusell that he neuer en­tended fro the deth of the husbande to as­signe her dower yet that proueth nat / but that he had good ryght to take the ꝓfites of her thyrde parte for the tyme as well as [Page] he had of his owne two partes: tyl request be made as is afore sayd / and so me thyn­keth that nat withstandyng the denyer he is nat bounde to yelde damagꝭ in this case but fro the tyme of the request / and nat for the tyme byfore.

For this tyme I am content with thy reason.

❧ The .xii. question of the student. The .xiiii. Chapitre.

A mā seased of certayne lan­dꝭ knowyng that an other hath good ryght and tytle to them leuieth a fyne with proclamacion to the entent he wolde extyncte the ryght of the other man / & the other man makethe no clayme within the .v. yeres / whether may he that leuyed the fyne holde the lande in cōsciēce as he may do by the lawe.

By this que­stion it semeth that thou doste agre that if he that leuyeth the fyne had no knowlege of the other mannes ryght: that his ryght shulde than be extyncted by the fyne in conscience.

ye verely / for thou dy­dest shewe a reasoneble cause why it shulde be so in oure fyrste dialogue in latyne the .xxiiii. Chapitre as there appereth. But if [Page 36] he that leuyeth a fyne and that wolde ex­tyncte the ryghte of an other / knowynge that the other hathe more ryghte than he (than I doute therin) for I take thyne opinion in our fyrste dialogue to be vnderstāde in conscience where he that wolde extincte former ryghtes by suche a fyne with pro­clamaciō knoweth nat of any former tytle but for his more surety if any suche former ryght be: he taketh the remedy that is or­deyned by the lawe.

Whether dost thou meane in this case that thou puttest now that he that hath right: knoweth of the fyne and wylfully lettethe the .v. ye­re pas without claime or that he knoweth nat any thynge of the fyne.

I pray the let me knowe thyne opinion in bothe cases and whether thou thinke that he that hathe ryght be barred in eyther of the cases by conscience as he is by the law or nat.

I wyll with good wyl here after shewe me thy mynde therin / but at this tyme I praye the gyue a ly­tell sparyng and procede nowe for this tyme to some other question.

❧ The .xiii. question of the student. The .xv. Chapitre.

A man seased of certayne landes in fee hath a doughter whiche is his heyre apparaūte / the doughter taketh a husbande and they haue issue: the father deyeth seased / & the husbande as sone as he hereth of his deth goeth towarde the lande to take possession / and byfore he can come there: his wyfe dieth / whether ought he to haue the lande in cōscience for terme of his lyfe as tenaunt by the courtesie by­cause he hath done that in hym was to haue had possession in his wyues lyfe so that he myght haue ben tenaunt by the courte­sie accordynge to the lawe / or that he shall neyther haue it by lawe nor conscience.

Is it clerely holdē in the law that he shall nat be tenaunt by the curtesy in this case bycause he had nat possession in dede.

ye verely / and yet vpō a possessiciō in lawe a womā shal haue her dower / but no man shalbe tenaunte by the curtesie of lāde without his wyfe haue pos­session in dede.

A man shalbe tenaunt by the curtesie of a rent thoughe his wyfe dye byfore the day of payment / & in lyke wyse of an aduowson thoughe she dye byfore the auoydaunce.

That is trouthe / for the olde custome and [Page 37] maxime of the lawe is that he shall be so / but of lande there is no maxime that ser­ueth hym but his wyfe haue possession in dede

And what is the reason that there is suche a maxime in the lawe of the rent and of the aduowson rather thā of lande / whan the husbāde doth as moche as in hym is to haue possessiō and can nat

Some assigne the reason to be bycause it is impossible to haue possession in dede of the rent or of aduouson byfore the daye of payment of the rent / or byfore the auoydaunce of the aduouson.

And so is impossible that he shal haue pos­session in dede of lande if his wyfe dye so sone that he maye nat by possibilitie come to the lande after her fathers dethe / and in her lyfe as this case is.

The lawe is suche as I haue shewed the byfore and I take the verey cause to be for that there is a maxime serueth for the rent and the aduouson / and nat for the landes as I haue sayd byfore / and as it is sayd in the viii. chapitre of our fyrst dialogue / it is nat alwaye necessarie to assigne a reason or cō sideraciō why the maximes of the lawe of Englande were fyrst ordeyned and admit­ted for maximes / but it suffisethe that they [Page] haue ben alwaye taken for lawe and that they be neyther cōtrarie to the lawe of reason nor to the lawe of god as this maxime is nat / and therfore if the husbande in this case be nat holpen by cōscience he can nat be holpen by the lawe.

And if the lawe helpe hym nat: cōscience can nat helpe hym in this case / for conscience must alwaye be grounded vpon some lawe / and it can nat in this case be groūded vpon the lawe of reason nor vpon the lawe of god / for it is nat dyrectely by those lawes that a man shalbe tenaūt by the curtesy / but by the custome of the realme. And therfore if that custome helpe hī nat: he can nothyng haue in this case by conscience / for consci­ence neuer resysteth the lawe of mā nor addeth nothynge to it / but where the lawe of man is in it selfe dyrectly against the lawe of reason or els the lawe of god / and than properly it can nat be called a lawe but a corrupcion / or where the generall groun­des of the lawe of man worketh in any particuler case agaynste the sayd lawes as it may do / and yet the lawe good as it appe­reth in diuerse places in our fyrst dialogue in latyne / or els where there is no lawe of man prouided for hym that hathe ryghte [Page 38] to a thynge by the lawe of reason or by the lawe of god. And than somtyme there is remedy gyuen to execute that in cōscience / as by a Sub pena but nat in all cases / for somtyme it shalbe referred to the consciēce of the partie / and vpon this grounde (that is to saye) that whan there is no tytle gy­uen by the comon lawe: that there is no tytle by conscience. There be diuerse o­ther cases wherof I shall put some for an example. As if a reuercion be graunted vnto one / but there is none attournement / or if a newe rente be graunted by worde with out dede: there is no remedy by conscience oneles the sayd grauntes were made vpon consideracions of money or suche other.

And in lyke wyse where he that is seased of landes in fee simple maketh a wyll therof / the wyll is voyde in conscience bycause the grounde seruethe nat for hym wherby the conscience shulde take effecte / that is to saye / the lawe / and if the tenaunte make a feoffement of the lande that he holdeth by priorite and taketh estate agayne and dy­eth (his heyre within age) the lorde of whome the lande was fyrst holden by prioritie shall haue no remedy for the body by con­science / for the lawe that fyrste was with [Page] hym / is nowe agaynste hym / and therfore cōsciēce is altered in lyke wyse as the lawe altereth / and diuerse and many cases lyke be in the lawe that were to long to reherce nowe. And thus me thynketh that if the lawe be as thou sayest: the husbande ī this case hathe neyther ryght by the lawe nor conscience.

❧ The .xiiii. question of the student. The .xvi. Chapitre.

A rent is graunted to a man ī fee to perceyue of two acres of land / and after the graūtour enfeoffeth the grauntee of one of the sayd acres / whether is the hole rente extyncte therby in consci­ence as it is in the lawe.

Thy case is somwhat vncertayne / for it appe­reth nat whether the grauntour enfeoffed hym on truste: or that he gaue the acre to hym of his mere mocion to the vse of the sayd feoffe / or els that the feoffement was made vpon a bargayne / and if it were but onely a feoffement of truste / than I thinke the hole rent abydeth in conscience though it be extyncted in the lawe / and fyrste that it continueth in that case in conscience / [Page 39] for that parte that the grauntee hathe to the vse of the grauntour / it is euidente / for he may nat take the profytes of the lande / and it is agaynste conscience that he shulde lese bothe / and in lyke wyse it abydeth ī cō science for the acre that remayneth in the handes of the grauntour thoughe it be ex­tyncte in the lawe / for there was a defaute in the grauntoure that he wolde make the feoffement to the grauntee as well as ther was in the grauntee to take it. And it is no conscience that of his owne defaute he shulde take so great auayle to be dischar­ged of the hole rent seynge that the feoffe­ment was made to his owne vse. And if the feoffemēt were made vpon a bargayne and a contracte betwene them / than it is to se whether they remembred the rent in in theyr bargayne / or that they remēbred it nat / & if they remembred it in theyr bar­gayne and contracte / than cōscience must folowe the bargaine / as thus if they agre­ed that the grauntee shulde haue the rent after the porcion in the other acre than by conscience he ought to haue it thoughe it be extincted ī the lawe. And if they agreed that the hoole rente shulde be extyncte and made theyr pryce accordynge than it is extyncte [Page] in lawe and conscience / and if they clerely forgete it and made no mencion of it / or for lacke of connynge toke the lawe to be that it shulde continue in the other acre after the porcion and made theyr price accordynge / ponderynge onely the value of the acre that was solde: than me thyn­keth / it dothe continue in conscience after the porcion / and if the feoffement were made to the vse of the graūtee / than it semeth the hole rente is extyncte in lawe and con­science.

Than take that to be the case / that is to saye / that the feoffe­ment was made to the vse of the graūtee.

What is than thyne opini­on therin.

That the rente shulde abyde in conscience after the porci­on for the acre that remayneth in the handes of the grauntoure natwithstandynge it be extyncte in the lawe.

Than shewe me thyne opinion ī this that I shall aske the. Of what lawe is it that grauntes of rent and of suche other profi­tes out of landes maye be made and that they shal be good and effectual to the graū tees / whether is it by the lawe of reason or by the lawe of god or by the custome and lawe of the realme.

I [Page 40] thinke it is by the lawe of reasō / for by the same reason that a man may gyue awaye all his landes: he maye as it semethe gyue awaye the profytes therof or graunte a rent out of the lande if he wyl.

But than by what lawe is it that a man maye gyue awaye his landes / I trowe by none other lawe but by the custome of the realme / for by statute all alienacions and gyftes of landes maye be prohibite / and than that reason proueth nat that graun­tes of the ꝓfytes of lande or of a rent shuld be good by cause he maye alien the lande / if alienacions of lande be by custome and nat by the lawe of reasō as I suppose it is / wherof I touched somwhat in our fyrste dialogue in latyne the .xix. Chapitre. And also if grauntes shulde haue theyr effecte by the lawe of reason: than reason wolde that they shulde be good by the onely word of the grauntoure as well as by his dede / & that is nat so / for without dede the graunt of rent is voyde in the lawe and so my thinketh that graūtes haue theyr effecte onely by the lawe of the realme.

(Ad­myt it to be so) what meanest thou therby

I shal shewe the here after as [Page] I shall shewe the the cause why I thynke the rente is extyncte in conscience as well as in lawe. And fyrste as I take it the rea­son why it is extyncte in the lawe is by­cause the rent by the fyrst graunt was go­ynge out of bothe acres / and was nat go­yng parte out of the one acre and part out of the other / but the hole rent was goyng out of bothe / and than whan the grauntee of his one foly wyll take estate in the one acre wherby that acre is discharged / than the other acre also muste be discharged o­neles it shulde be apporcioned and the law wyl nat that any apporcionemēt shulde be in that case / but rather in as moche as the partie hathe by his owne acte discharged the one acre: the lawe dischargeth also the other / rather than to suffre the other acre to be charged cōtrarie to the fourme of the graunte / for this rēt begynneth all by the acte of the party and as I haue herde is called a rēt agaynst comō ryght / wherfore it is nat fauored ī the law as a rent seruice is / and than me thynketh that for as moch as it is nat groūded by the lawe of reason that grauntes of rent shulde be made out of lande / but by the custome and law of the realme as I haue sayd byfore / that so in [Page 41] lyke wyse it remayneth to the lawe and custome of the realme to determine howe lōg suche rentes shall continue. And whan the lawe iugeth suche rentes to be voyde: I suppose that so doth conscience also / except the iugement of the lawe be agaynste the lawe of reason or the lawe of god / as it is nat in this case for in this case he that ta­keth the feoffement hath profite by the fe­offement / and knoweth that he hath suche a rent out of the lande / and that his pur­chace shulde extynct it / wherby it appereth that he asienteth vnto the lawe wherto he was nat compelled / and that is his owne acte and his owne defaut so to do / whiche shall extyncte his hole rent as well in con­sciente as in the lawe. But if he haue no ꝓfyte of the lande or be ignoraunt that he hathe suche a rent out of the lande whiche is called ignoraunce of the dede / or if he be ignoraūt that the lawe wolde extyncte his hole rēt therby / which is called ignoraūce of the lawe / than me thynkethe it remay­neth in conscience after the porcion.

Ignoraunce of the lawe or of the dede helpeth nat but in fewe cases ī the lawe of Englande.

And therfore it muste be refourmed by conscience / [Page] that is to say by the lawe of reasō / for whā the generall maximes of the lawe be ī any particuler cases against the lawe of reason as this maxime semeth to be bycause it excepteth nat thē that be ignoraūt thoughe it be an ignoraunce in vincible thā do they nat agree with the lawe of reason.

We thynketh that ignoraunce ī this case helpeth lytell / for whan a man byethe any lande or taketh it of the gyfte of any other he taketh it at his peryl / so that if the tytle be nat good: ignoraūce cā nat helpe / for the byer muste byware what he byeth / and so in this case if the takyng of the one acre shulde extincte the hole rent in consci­ence if he were nat ignoraunt / some thyn­keth it shulde in lyke wyse extincte it also thoughe he be ignoraunt of the lawe or of the dede / for euery man must be compelled to take notyce of his owne tytle: and out of what lande his rent is goynge / & some thynketh ignoraunce is but lytell to be cō sidered in this case.

If a man bye lāde or take it of the gyfte of an other: it is reason that he take it with the peryll though he be ignoraūt that a nother hath ryght / for it were nat standynge with rea­son that his ignoraunce shulde extyncte [Page 42] the ryght of a nother / but in this case ther is no doute of the ryght of the lande / but al the doute is howe the rent shalbe ordred in conscience if he that hathe the rente take parte of the lande / and therin is great di­uersite bytwene hym that is ignoraunt in the lawe / and him that knoweth the lawe / and knowethe well also that he hathe a rent out of that land and other. For I put case that he asked counsayle of the graun­tour hym selfe therin and he saynge as he thought tolde hī y ^t the takyng of the one acre shuld nat extyncte the rent but for the porcion: and so he thynkynge the lawe to be: toke the other acre of his gyfte. Is it nat reasonable in that case that that igno­raunce shulde saue the rent in conscience.

yes / for there the grauntour hym selfe is partie to his ignoraunce and is in maner the cause therof.

And me thynkethe all is one if any other had shewed hym so / or if he had asked no counsayle at all / for me thynkethe it suffi­seth in this case that he be ignoraūt of the lawe / for why / it is more harde in this cas to proue that the rent shulde be extyncte in conscience thoughe he knowe it shalbe ex­tyncted in the lawe: than to proue that it [Page] continueth in conscience after the porcion if he be ignorāt / & thou thy self were of the same opinion / as it appereth in the begyn­nynge of this present Chapitre / but if that opinion were true: it wolde be hard to ꝓue but that the sayd generall maxime were holly agaynste reason / & thā it were voyd / but I haue sufficiently answered therto as me semethe / and that it is extyncte in the lawe and also in conscience / excepte igno­raunce helpe it to be apporcioned. And more ouer for as moch as apporcionemēt is suffred in the lawe where ꝑte of the land discendeth to the grauntee bycause no de­faute can be assigned in hym / so me thyn­keth no defaute can be assigned in hym in conscience whā he is ignoraūt of the lawe or of the dede thoughe suche ignoraūce do nat excuse in the lawe of the realme.

I am contente with thyne o­pinion in this behalfe at this tyme.

❧The .xv. question of the student. The .xvii. Chapitre.

A mā graūteth a rēt charge out of two acres of lande / and after the grauntour enfeoffeth Henry hert [Page 43] in one of the sayd two acres to the vse of the sayd Henry herte and of his heyres / & after the sayd Henry herte entendynge to extyncte all the rent causeth the sayd acre to be recouered agaynste hym to his owne vse in a wryt of entre in the post in the na­me of the grauntee and of other after the comon course / the grauntee nat knowyng of it / and by force of the sayd recouere the other demaundaūtes entre and dye / lyuyng the grauntee / so that the graūtee is seased of al by the surueiour to the vse of the sayd Henry herte / whether is the sayd rent ex­tyncte in conscience in parte nor in all or ī no parte.

I am in doute of the lawe in this case.

In what poynt.

whether the hole rent be goynge out of the acre that remayneth in the handes of the graūtour bycause the grauntee cometh to the lande by waye of recouere / or that it shalbe extyncte in the law / but after the porciō by cause the graū tee hathe nat the acre to his owne vse / or that the hole rēt shalbe extincte ī the lawe.

The rent can nat be hoole go­ynge out of the acre that the grauntoure hathe / for this recouere is vpon a fayned tytle / & the graūtour bycause he is straūge [Page] to it: shalbe well resceyued to falsifie it.

But if the recouerye had ben vpon a true tytle: than it had ben as thou sayest / for if the grauntee recouer the one acre agaynst the grauntour vpon a true tytle / the graū ­tour shall pay the hole rent out of that lāde that remayneth in his hāde / and as to the vse it maketh no mater to the grauntoure as to the lawe in whome the vse be / for the possession without the vse extynguyssheth the hole rent as agaynst hym in the lawe as well as if the possession & vse were both ioyned to gether in the grauntee.

Than me thynkethe that the sayd Henry herte is bounden in conscience to paye the graūtee the rent after the porcion of that acre that was recouered / for it cā nat stāde with conscience that he shulde lose his rent and haue no profites of the lande.

Than of whome shall he haue the o­ther porcion of his rente.

Is the lawe clere that the acre that the grauntour hath shalbe in this case discharged in the lawe.

I take the lawe so.

And what in conscience.

As agaynste the grauntoure me thynketh / also it is extyncte in consci­ence for the reason that thou hast made in [Page 44] the .xvi. Chapitre / for it is all one in conscience in this case as agaynst the graūtour whether the recouere were to the vse of the grauntee or nat / especially seynge that the grauntoure is nat priuey to the recouery / for the vnite of possession is the cause of extinguisshemēt of the rent against the graū toure bothe in lawe and conscience where so euer the vse be / but if the grauntour had ben priuey to the cause of the extynguisshement as he was in the case that I put in the laste Chapitre where the grauntoure enfeoffed the grauntee of one of the acres to the vse of the grauntee there it is nat extyncte in conscience in that acre that re­mayneth in the handes of the grauntoure thoughe it be extyncted ī the lawe / bycause he was pryuey to the extynguisshement hī selfe / but he is nat so in this case / and ther­fore it is extyncte agaynst hym ī lawe and conscience. And therfore me thynkethe that the grauntee shall in conscience haue the hoole rente of the sayd Henry herte that caused the sayd recouere to be had in his name / for in hym was all the defaute / but it is to be vnderstande that in all the cases where it is sayd byfore in this Cha­pitre or in the Chapitre nexte byfore: [Page] that the rent is extincte in the lawe & nat in conscience that in suche case all the re­medies that the partie myght fyrste haue had for the rent at the comon lawe by di­stres assyse or otherwyse are determined / and the partie that ought to haue the rent in cōscience shalbe dryuen to sue for his re­medy by Sub pena.

I am cō ­tent with thy conceyte in this matter for this tyme.

❧The .xvi. question of the student. The .xviii. Chapitre.

A vylleyne is graunted to a mā for terme of lyfe / the vylleyne purchaseth landes to hym and to his heyres / the tenaunt for terme of lyfe entre the / in this case by the lawe he shall enioye the landes to hym and to his heyres / whether shall he do so in lyke wyse in conscienec.

Me thynketh it fyrst good to se whether it maye stande with conscience that one man may clayme an other to be his vylleyne / and that he maye take fro hī his landes and goodes and put his body in prysō if he wyll / it semeth he loueth nat his neyghbour as hym selfe that dothe so [Page 45] to hym.

That lawe hathe bene so longe vsed in this realme and in other also / and hath ben admitted so long in the lawes of this realme and of diuerse other lawes also and hath bene affermed by bis­shoppes / abbotes / priors / and many other men bothe spirituall and temporall which haue take aduauntage by the sayd lawe & haue seased the landes and goodꝭ of theyr vylleyns therby and cal it theyr ryght en­heritaunce so to do: that I thynke it nat good / nowe to make a doute ne to put it in argument whether it stand with consciēce or nat / and therfore I pray the admittyng the lawe in that behalfe to stande in conscience shewe me thyne opinion in the question that I haue made.

Is the lawe clere that he that hath the vylleyne but only for the terme of lyfe shal haue the landes y ^t the vylleyne purchaseth in fee to hym and to his heyres.

I ve­rely I take it so.

I wolde haue take the lawe otherwise / for if a seygnoury be graunted to a man for terme of lyfe and the tenaunt attourne / and after the lande eschete and the tenaūt for terme of lyfe en­treth he shal haue there none other estate ī the lande than he had in the seygnourye / [Page] and me thynketh that it shuld be lyke law in this case / and that the lorde ought to haue in the lande but suche estate as he hathe in the vyllayne.

The cases be nat lyke / for in that case of the eschete the te­naunt for terme of lyfe of the seygnourye hathe the landes in the lieu of the seignou­rie / that is to saye / in the place of the seig­nourie / & the seignourie is clerely extincte / but in this case he hathe nat the lande ī the lieu of the vylleyne / for he shal haue the villeyne styl as he had byfore / but he hath the landes as a ꝓfyte come by meanes of the vylleyne whiche he shall haue in lyke case as the vylleyne had them / that is to saye / of all goodes and catalles he shal haue the hole propertie and of a lease for terme of yeres he shall haue the hole terme / and for terme of lyfe he shall haue the same estate / the lorde shall haue the lande durynge the lyfe of the vyleyne & of lande in fee simple & of an estate tayle that the vylleyne hath / the lorde shall haue the hole fee simple / all thoughe he had the vylleyne but onely for terme of yeres so that he entre or sease ac­cordyng to the lawe byfore the vylleyne a­lien: or elles he shall haue nothynge.

Verely and if the lawe be so / I thynke conscience folowethe the lawe [Page 46] therin / for admyttynge that a man maye with conscience haue an other man to be his hylleyne / the iugement of the lawe in this case as to termine what estat the lord hath in the lande by his entre is neyther agaynst the lawe of reason nor agaynst the lawe of god / and therfore conscience muste folowe the lawe of the realme / but I pray the let me make a lytell dygression to here thyne opinion in a nother case somewhat perteynynge to the question / and it is this if an executour haue a vylleyne that is his testatoure had for terme of yeres & he pur­chaseth landes in fee and the executour entreth in to the lande / what estate hathe he by his entre.

A fee simple / but that shalbe to the behoue of the testatoure and shalbe an assesse in his handes.

Well than I am contented with thyne conceyte at this tyme in this case and I praye the procede to a nother question.

For as moche as it appereth in this case and in some other byfore y ^t y ^e knowlege of the law of Englāde is ryght necessarie for the good orderynge of conscience. I wolde here thyne opinion if a man mistake the lawe what daūger it is in conscience for the mistakynge of it.

I praye the put some case in certayn therof that thou doutest in / and I wyll with good wyll shewe the my mynde therin for elles it wyll be somwhat longe or it can be playnly declared / and I wolde nat be tedious in this wrytynge.

❧The .xvii. question of the student. The .xix. Chapitre.

A man hath a vylleyne for terme of lyfe the vylleyne purchaseth landes in fee as in the case in the laste Chapitre and the tenaūt for terme of lyfe entreth and after the vylleyne dyeth / he in the reuercion pretendynge that the tenaūt for terme of lyfe hath nothyng in the land but for terme of lyfe of the vylleine / asketh counsayle of one that sheweth him that he hath good ryght to the lande and that he may lawfully entre / and through that coū sayle he in the reuercion entreth / by reason of the whiche entre great sutes and expen­ces folowe in the lawe to the great hurte of bothe parties / what daunger is this to hym that gaue the counsayle.

Whether meanest thou that he that gaue the counsayle gaue it wyttyngly agaynste [Page 47] the lawe / or that he was ignoraunt of the lawe.

That he was ignoraūt of the lawe for if he knewe the lawe & gaue counsayle to the contrarie I thynke hym bounde to restitucion both to hym against whome he gaue the counsayle / and also to his client if he wolde nat haue sued but for his counsayle of all that they be dampni­fied by it.

Than wyl I yet ferther aske the this question / whether he of whome he asked counsayle gaue hym selfe to lernynge & to haue knowlege of the law after his capacite or that he toke vpon hī to gyue counsayle and toke no study com­petent to haue lernynge / for if he dyd so I thynke he be bounden in conscience to restitucion of all the costes and damages that he susteyned to whome he gaue counsayle if he wolde nat haue sued but throughe his counsaile. And also to the other partie / but if a man that hathe taken sufficient studye in the lawe / mystake the lawe in some poīt that is harde to come to the knowle of: he is nat bounden to suche restitucion / for he hath done that in him is / but if suche a mā knowyng the lawe gyue coūsayle agaynst the lawe: he is bounde in conscience to re­stitucion of costes & damages as thou hast [Page] sayd byfore / and also to make amendes for the vntrouthe.

What if he aske counsayle of one that he knowethe is nat lerned and he gyueth him counsayle ī this case to entre by force wherof he entreth.

Than be they bothe bounde in conscience to restitucion / that is to say / the party if he be sufficient and els the coū sayloure bycause he assented and gaue coū sayle to the wronge.

But what is the counsaylloure in that case bounden to / to hym that he gaue counsayle to.

To nothynge for there was as moche defaut in him that asked the coū sayle as in hym that gaue it / for he asked coūsayle of hym that he knewe was igno­raunt / and in the other was defaut for the presumpcion that he wolde take vpon him to gyue counsaile in that he was ignoraūt in.

But what if he that gaue the counsayle knewe nat but that he that as­ked it had trust in hym that he coulde and wolde gyue hym good counsayle and that he asked coūsayle for to order wel his con­science howe be it that the truth was that he coulde nat so do.

Than is he that gaue the counsayle boūden to offer to the other amendes / but yet the other may [Page 48] nat take it in conscience.

That were somwhat perilous for haply he wold take it thoughe he haue no ryght to it / ex­cepte the worlde be well amended.

What thynkest thou in that amendement.

I trust euery mā wyl do nowe in this worlde as they wolde be done to / speake as they thynke / restore where they haue done wrōg / refuse money if they haue no ryght to it though it be offred them do y ^t they ought for to do by cōsciēce / though they can nat be cōpelled to it by no lawe & that none wyl gyue coūsaile but that they shal thynke to be accordynge to cōscience / and if they do: to do that they can to refourme it / and nat to entremit them selfe with suche maters as they be ignoraunt in / but in suche cases to sende them that aske the counsayle to other that they shall thynke be more connynge than they are.

It were very well if it were as thou haste sayd / but y ^e more petie is: it is nat alwaye so / & specially there is great defaute in gy­uers of counsayle / for some for theyr owne lucre and profyte gyue coūsayle to cōforte other to sue that they knowe haue no ry­ght / but I truste there be but fewe of thē / & some for drede / some for fauoure / some for [Page] malyce / and some vpon confederacies and to haue as moche done for them a nother tyme to hyde the trouthe. And some take vpon them to gyue counsayle in that they be ignoraunt in / and yet whā they knowe the trouthe: wyll nat withdrawe that they haue misdone / for they thynke it shulde be greately to theyr rebuke / and suche ꝑsones folowe nat this coūsayle that sayth (That we haue vnaduisedly done: lette vs with good aduyse reuoke agayne)

And if a mā gyue coūsayle in this realme after as his lerninge and cōscience gyueth hym / and regardethe nat the lawes of the realme / gyueth he good counsayle.

If the lawe of the realme be nat ī that case agaynst the lawe of god nor agaynste the law of reasō he gyueth nat good coūsayle / for euery man is boūde to folowe the lawe of the contrey where he is / so it be nat a­gaynste the sayd lawes / & so maye the case be that he may bynde hym selfe to restitu­cion.

At this tyme I wyll no ferther trouble the in this question.

❧The .xviii. question of the student. The .xx. Chapitre.

If a man of his mere mocion gyue landꝭ to Henry herte and to his heyres by indenture vpon condicion that he shall yerely at a certayne daye pay to Iohanat Style out of the same lande a certayne rent / and if he do nat that than it shalbe lawful to the sayd Iohan at style to entre. &c. if the rent ī this case be nat paied to Iohan at style / whether maye the sayd Iohan at style entre in to the landes by cō science thoughe he maye nat entre by the lawe.

May he nat entre in this case by the lawe syth the wordꝭ of the indenture be that he shall entre.

No verelye for there is an auncient maxi­me in the lawe that no man shall take ad­uauntage of a condicion but he that is ꝑ­tie or priuey to the condicion / and this mā is nat partie nor priuey / wherfore he shall haue none aduauntage of it.

Thoughe he can haue none aduauntage of it as partie yet bycause it appereth eui­dentely that the intente of the gyuer was that if he were nat payed of the rente that he shulde haue the lande. It semeth that in cōscience he ought to haue it thou­ghe he can nat haue it by the lawe.

In many cases the entente of [Page] the partie is voyde to all intentes if it be nat grounded accordynge to the lawe.

And therfore if a man make a lease to a nother for terme of life / and after of his mere mocion he confermeth his estate for terme of lyfe / to remayne after his dethe to a no­ther and to his heyres / in this case that remayndre is voyde in lawe and conscience / for by the lawe there can no remayndre depēde vpon no estate but y ^t the same estate begīneth at the same time y ^t the remaīdre dothe / and in this case the estate beganne byfore and the confirmacion enlarged nat his estate nor gaue hym no newe estate / but if a lease be made to a man for terme of a nother mannes lyfe and after the lessour onely of his mere mocion confermeth the lande to his lesse for terme of his owne lyfe the remayndre ouer in fee / this is a good remayndre in lawe and conscience / and so me thynketh the intent of the partie shall nat be regarded in this case.

And in the fyrst case that thou hast put me thynketh though it passe nat by way of remayndre that yet it shall passe as by waye of graunt of the reuercion / for euery dede shalbe takē most stronge agaynst the graū tour and the takyng of the dede ī this case [Page 50] is an attournament in it selfe.

That can nat be / for he in the remayndre is nat partie to the dede and therfore it can nat be taken by waye of graunte of the reuercion / for no graūte can be made but to hym that is partie to the dede excepte it be by way of remayndre / and therfore if a mā make a lease for terme of life / and after the lessour graunt to a staūger that the tenaūt for terme of lyfe shal haue the lande to him and to his heyres / that graunt is voyde if it be made onely of his mere mocion with­out recompence. And in lyke wyse if a mā make a lease for terme of lyfe & after graūt the reuerciō to one for terme of lyfe / the re­mayndre ouer in fee / and the renaūt attur­neth to hym that hath the state for terme of lyfe onely / intēdyng that he onely shulde haue aduauntage of the graūte: his entēt is voyde / and both shall take aduauntage therof / and the atturnament shalbe taken good accordynge to the graunte / and so in this case though the feoffoure entended y ^t if the rente were nat payed: that the straū ger shulde entre / yet bycause the lawe gyuethe hym no entre in that case that in­tent is voyde / and the same staunger shall neyther entre into the lande by lawe nor [Page] conscience.

What shal than be done with the lande as thou thynkest after the cōdicion broken.

I thynke that the feoffour in this case may lawfully reentre / for whan the feoffemēt was made vpon condicion that the feoffe shulde pay a rent to a straunger: in tho wordes is con­cluded in the lawe that if the rent were nat payed to the straunger that the feoffoure shulde reentre for tho wordes vpon condi­cion / implie so moche in the lawe thoughe it be expressed. And than whā the feoffour went ferther and sayd that if the rēt were nat payed that the straunger shulde entre / those wordes were voyde in the lawe / and so the effecte of the dede stode vpon the fyrst wordes wherby the feoffour maye reentre in lawe and conscience: but if the fyrst wordes had nat ben cōdicionall I wolde haue holden it the greater doute.

I praye the put the case therof in certayne with suche wordes as be nat condicionall that I may the better perceyue what thou meanest therin.

❧The .xix. question of the studente. The .xxi. Chapitre.

A man maketh a feoffement by dede indetted / and by the same dede it is agreed y ^t y ^e feffe shal pay to A.B. & to his heyres a certayne rēt yerely at certayn dayes / & y ^t if he pay nat the rēt: thā it is agreed that A.B. or his heyres shall en­tre into the lande / and after the feoffe pay­eth nat the rent / than the question is who ought in cōscience to haue this lande and rent.

Or we argue what conscience wyll: let vs knowe fyrste what the lawe wyll therin.

I thynke that by the lawe neyther the feoffoure ne yet the sayd A.B. shall neuer entre into the lande in this case for nat paymente of the rent for there is no reentre in this case gy­uen to the feoffour for nat payment of the rent as there is in the case next byfore / and the entre that is gyuen to the sayd A. B. for nat paymēt therof is voyde in the lawe bycause he is estraūge to the dede as it appereth also in the next Chapitre byfore.

And therfore me thynketh that the grea­test doute in this case is to se to what vse this feoffement shalbe taken.

There appereth in this case as thou haste put it: no consideracion ne recompence gy­uen to the feoffour whervpon any vse may [Page] be deriuied / & if the case be so in dede & that the feoffour declared neuer his mynde therin / to what vse shall it thā be takē.

I thynke it shalbe taken to be to the vse of the feoffe as longe as he payeth the rente / for there is no reason why the feoffe shulde be busied with paymēt of the rent hauyng nothynge for his labour / ne it may nat cō ­ueniently be taken that the intent of the feoffour was so / excepte he expressed it / & thā it must be taken that he intended to recō ­pense the feffe for the busynes that he shuld haue in the payment ouer / and by the wordes folowyng his intent appereth to be so as me thynketh / for if the rēt were nat payed he wolde that A.B. shulde entre / and so it semeth he entended nat to haue any vse hym selfe and thus as me semeth this case shulde varye fro the comō case of vses / that is to saye / if a man seased of lande make a feoffement therof: and it apperethe nat to what vse the feoffement was made ne it is nat vpon any bargayne or other recom­pence: than it shalbe taken to be to the vse of the feoffoure / excepte the contrarie can be proued by some bargaine or other lyke / or that his intēt at the tyme of the lyuerey of season was expressed that it shulde be to [Page 52] the vse of the feoffe or of some other / & than it shall go accordynge to his entent / but in this case me thynketh it shalbe taken that his entent was that it shulde fyrst be to the vse of the feoffe for the cause byfore reher­ced excepte the contrarie can be proued / & so the knowlege of the intēt of the feoffour is the greatest certaynte for knowelege of the vse in this case as me semeth / but whā the feoffour goeth ferther and sayeth that if the rent be nat payed: thā the sayd A.B. shulde entre into the lande / thā it appereth that his entent was that the rente shulde cease / and that A. B. shulde entre into the lande / and thoughe he maye nat by those wordes entre into the lande after the rules of the lawe / and to haue freholde / yet those wordes seme to be sufficient to proue that the intēt of the feoffour was that he shulde haue the vse of the lande / for sythe he had the rente to his owne vse and nat to the vse of the feoffoure: so it semeth he shal ha­ue the vse of the lande that is assigned to hym for nat paymente of the rente.

But I am somwhat in doute whether he had the rente to his owne vse / for the intēt of the feoffour myght be that he shuld pay the rēt for hī to some other or [Page] some other vse myght be appoynted ther­of by the feoffour.

If suche an entēt can be proued: than that intent must be obserued / but we be ī the case to wete to what vse it shalbe taken if the entēt of the feoffour can nat be proued / & thā me thyn­keth it can nat be otherwyse takē but that it shalbe to the vse of hī to whome it shulde be payed / for though it be called a rent yet it is no rent in the lawe / ne in the lawe he shall neuer haue remedy for it / thoughe it were assigned to hym & to his heyres with out condicion / neyther by distresse / by As­syse / by writte of Annuite / nor otherwyse / but he shalbe dryuen to sue in the chaunce­ry for his remedy / and than whā he sueth in the chauncery: he must surmitte that he ought to haue it by conscience / and that he can haue no remedy for it in the lawe.

And than sythe he hathe no remedy to co­me to it but by way of cōscience: it semeth it shalbe taken that whan he hath recoue­red it that he ought to haue it in consciēce and that to his owne vse without the con­trarie cane be proued / and if the contra­rie can be proued: and that the entent of the feoffoure was that he shulde dispose it for hym as he shulde appoynt than hathe [Page 53] he the rēt in vse to a nother vse / and so one vse shulde be depēdynge vpon a nother vse whiche is seldome sene and shall nat be in­tended tyll it be ꝓued / and so sythe no such matter is here expressed: me thynkethe the rent shalbe taken to be to the vse of hī that it is payed to / & that the lande in lykewyse that it is appoynted to hī for nat paymēt of the sayd rent shalbe also to his vse / howe thynkest thou / wyll conscience therin.

I thynke that as thou takest the lawe nowe: that cōscience (in this case) & the lawe be all one / for the lawe sercheth the same thynge in this case to knowe the vse that conscience doth / that is to say / the intent of the feoffour / and therfore I wold moue the ferther in one thynge.

What is that.

That syth the intent of the feoffour / shalbe so moch regarded ī this case: why it ought nat also to be as moche regarded ī the case that is ī the last Chapitre next byfore this where the wordes be cōdicionall / and gyue the feoffour a tytle of reentre / for me thyn­keth that though the feoffour may in that case reentre for the condicion broken: that yet after his reentre he shalbe seased of the lande after his entre to the vse of hym to [Page] whome the lande was assigned by the said indenture for lacke of payment of the rent bycause the intent of the feoffour shalbe ta­ken to be so in that case as well as in this. And I praye the let me knowe thy mynde what diuersite thou puttest bytwene them

Thou dryuest me nowe to a narowe diuersite / but yet I wyll answere thy therin as well as I can.

But fyrst or thou shewe me that diuersite: I praye the shewe me howe vses began / & why so moche lande hath ben put in vse in this realme as hath ben.

I wyll with good wyl say as me thinketh therin.

❧Howe vses of lande fyrst bygan / and by what lawe / and the cause why so moche land is put in vse. The .xxii. Chapitre.

Vses were reserued by a se­condary conclusion of the lawe of rea­son in this maner / whan the generall custome of propertie wherby euery man knewe his owne good fro his neyghbours was brought in amonge the people. It folowed of reason that suche landes and goodes as a man had: ought nat to be ta­ken [Page 54] fro hym but by his assent or by order of a lawe / and than syth it is so that euery man that hathe landes hathe therby two thynges in hym / that is to say / the possession of the lāde whiche after the lawe of Englande is called the franketenement or the free holde / and the other is aucthoritie to take therby the profites of the lande / wherfore it foloweth that he that hathe lande & intendeth to gyue onely the possession and free holde therof to a nother / and to kepe the profites to hym selfe ought in reason and conscience to haue the profites / seyng there is no lawe made to ꝓhibite / but that in cōscience suche reseruaciō may be made. And so whan a man maketh a feoffemente to a nother and intēdeth that he hym selfe shal take the profites thā that feffe is sayd seased to his vse that so enfeffed hym / that is to saye / to the vse that he shall haue the possession & freeholde therof as in the lawe to that intent that the feoffoure shall take the profites / and vnder this maner as I suppose vses of lande fyrste began.

It semeth that the reseruyng of such vse is prohibite by the lawe / for if a man make a feoffemēte and reserue the profites or any parte of the profites as the gresse [Page] wode or such other / that reseruaciō is voyd in the lawe / and me thynkethe it is all one to say that the lawe iugeth suche a thynge if it be done to be voyde / and that the lawe prohibiteth that that thynge shall nat be done.

Trouthe it is that suche reseruacion is voyde in the lawe as thou sayest and that is by reason of a maxime ī the lawe that wylleth that suche reseruacion of parte of the same thyng shalbe iuged voyde in the lawe / but yet the lawe dothe nat ꝓhibite that no suche reseruacion shal be made / but if it be made it iugeth of what effecte it shalbe that is to say that it shalbe voyde / and so he that maketh such reserua­cion offendeth no lawe therby / ne brekethe no lawe therby and therfore the reseruaci­on in conscience is good / but if it were prohibite by statute that no man shulde make suche reseruacion / ne that no feoffement of truste shulde be made / but that all feoffemē tes shulde be to the vse of hym to whome possession of the lande is gyuen / than the reseruacion of suche vse agaynst the statut shulde be voyde bycause it were agaynste the lawe / and yet suche a statute shulde nat be a statute agaynste reason bycause suche vses were fyrste grounded and reserued by [Page 65] the lawe of reasō / but it shulde preuent the lawe of reason and shulde put away the cō sideracion where vpon the lawe of reason was grounded byfore the statute made.

And than to thy other question / that is to saye / why so moche lande hathe ben put in vse / it wyll be somwhat longe and perad­uēture to some tedious to shewe al the causes perticulerly / but the very cause whythe vse remayned to the feffe natwithstādyng his owne feoffement or fyne and somtyme natwithstandynge a recouery agaynste hī is al vpon one cōsideracion after the cause and intent of the gyfte / fyne / or recouery / as is aforesayd.

Thoughe reason may serue that vpō a fe­offement a vse may be reserued to the feof­four by the intent of the feoffour agaynste the fourme of his gyfte as thou hast sayde byfore / yet I meruayle howe suche an vse may be reserued against a fyne that is one of the hyghest recordes that is in the law / and is taken in the lawe of so hyghe effecte that it shulde make an ende of all stryffes / or agaynst a recouere that is ordeyned in the lawe for them that be wronged to re­couer theyr ryght by / and me thīketh that great encōuenience and hurte may folowe [Page] whan suche recordes may so lyghtly be a­uoyded by a secrete intente or vse of the ꝑ­ties and by a nude and bare auerment and mater in dede / and specially sythe suche a mater in dede maye be aleged that is nat true wherby may rise great strife bytwene the parties / and great cōfusion and vncer­taynte in the lawe / but neuertheles sythe our intente is nat at this tyme to treate of that mater I pray the touche shortly some of the causes why there hath ben so many persones put in estate of landes to the vse of other as there hathe ben / for as I here say / fewe men be sole seased of theyr owne landes.

There hath ben many causes therof / of the whiche some be put a­way by diuerse statutꝭ / and some remayne yet / wherfore thou shalte vnderstande that some haue put theyr lande in feoffent secretely to the intēt that they that haue ryght to the lande shuld nat knowe agaynst whome to bryng theyr accion / & that is moche what remedied by diuerse statutes that gyue acciōs agaynst pernours and takers of the profites. And somtyme suche feoffemē tes of trust haue ben made to haue mayn­tenaunce and berynge of theyr feoffes / whiche peraduenture were great lordes or ru­lers [Page 56] in the countreye / and therfore to put a way suche mayntenaunce: treble damagꝭ be gyuen by statute against thē that make suche feoffementes for mayntenaūce. And sōtyme they were made to the vse of mort mayne whiche myght than be made with out forfayture thoughe it were prohibite that the freeholde myght nat be gyuen in mortmayne. But that is put away by the statute of Rycharde the seconde. And som­tyme they were made to defraude the lor­des of wardꝭ / relyefs / harryots / and of the landes of theyr vylleyns / but those poītes be put away by diuerse statutes made ī the tyme of kynge Henry the .vii. Somtyme they were made to auoyde execucions vp­on statutes Staple / Statute Marchaūte / & Recognisaunce / and remedy is prouided for that that a mā shall haue execucion of all suche landes as any persone is seased of to the vse of hym that is so bounde at the tyme of execucion sued ī the .xix. yere of H. the .vii. And yet remayne feoffementes / fynes / and recoueres in vse for many other causes / in maner as many as there dyd byfore the sayde estatutes. And one cause is why they be yet thus vsed is to put a­way tenauncy by the curtesy and tytles of [Page] dower. An other cause is for that landꝭ in vse shall nat be put in execucion vpon a statute staple / statute marchaunt / nor recognisaunce / but suche as be in the handꝭ of the recognisour tyme of the execucion sued.

And somtyme landꝭ be put ī vse that they shulde nat be put in execucion vpon a wryt of Extendi facias ad valenciā. And som­tyme suche vses be made that he to whose vse. &c̄. may declare his wyl theron / & som­tyme for surety of diuerse couenauntes in indentures / of mariage / & other bargains / and these two last articles be the chyefe & principal causes why so moche lāde is put in vse. Also landꝭ in vse be no asses neyther in a Fourmedone nor in an accion of Det agaynste the heyre: ne they shall nat be put in execucion by an Elegit sued vpon a recouere as some men say and these be the ve­ry chyefe causes as I nowe remēbre why so moche lande standeth ī vse as there doth / and all the sayd vses be reserued by the in­tente of the parties vnderstande or agreed bytwene them / and that many tymes dy­rectely agaynst the wordes of feoffement / fyne / or recouere / and that is done by the lawe of reason as is aforesayd.

May nat an vse be assigned to a straunger [Page 57] as well as to be reserued to the feoffour if the feoffour so appoynted it vpon his feof­fement.

yes as well / & in lykewyse to the feoffe and that vpon a fre gyfte without any bargayne or recompence if the feoffour so wyl.

What if no feoffement be made but that a man graūt to his feoffe that fro thens forthe he shall stande seased to his owne vse / is nat the vse chaunged though there be no recompence

I thynke yes for there was an vse in Esse byfore the gyfte whiche he may as lawfully gyue away as he myght the lande if he had it in possession.

And what if a man beynge seased of lande in fee graunte to a nother of his mere mo­cion without bargayne or recompēce that he fro thens forthe shalbe seased to the vse of the other / is nat that graunte good.

I suppose that it is nat good / for as I take the lawe: a man can nat commence an vse but by lyuerey of seasō or vpon a bargayne or some other recompence.

I holde me contented with that thou haste sayd in this Chaphitre for this tyme and I pray the shewe me what diuersite thou putteste bytwene those two cases that thou hast byfore reherced in the [Page] xx. Chapitre and in the .xxi. Chapitre of this present boke.

I wyl with good wyll.

❧The diuersite bytwene two cases here after folowynge / wherof one is put in the .xx. Chapitre and the other in the .xxi. Chapitre of this pre­sent boke. The .xxiii. Chapitre.

The fyrste case of the sayd two cases is this. A man maketh a feoffement by dede indented vpon a condicion that the feoffe shall paye a certayne rente yerely to a straunger. &c̄. & if he paye it nat: that it shalbe lawfull to the straun­ger to entre into the lande. In this case I sayd byfore in the .xx. Chapitre: that the straūger myght nat entre bycause that he was nat pryuey vnto the condicion. But I sayd that ī that case the feoffour myght lawfully reentre by the fyrste wordꝭ of the indenture bycause they implye a condiciō in the lawe & that the other wordes (that is to saye) that the straunger shulde entre be voyde in lawe and conscience. And therfore I sayd ferther that whan the feoffour had reētred that he was seased of the lāde to his owne vse & nat to the vse of the strā ­ger [Page 58] / thoughe his entent at the makyng of the feoffement were that the straunger af­ter his entre shuld haue had the lād to his owne vse if he myghte haue entred by the law. And the cause why I thynke that the feoffour was seased ī that case to his owne vse I shall shewe the afterwarde. The se­conde case is this. A man maketh a feoffe­ment in fee / and it is agreed vpon the feof­fement that the feoffe shal pay a yerely rēt to a straūger / and if he pay it nat: that thā the straunger shall entre into the lande.

In this case I sayd as it appereth in the sayd .xxi. Chapitre / that if the feoffe payed nat the rent: that the straunger shuld haue the vse of the lande thoughe he maye nat by the rules of the lāde entre into the lāde / & the diuersite bytwene the cases me thynkethe to be this. In the fyrste case it appe­rethe as I haue sayd byfore in the sayde xx. Chapitre / that the feoffour myght lawfully reentre by the lawe for nat payment of the rent / and than whā he entred accor­dynge: he by that entre auoyded the fyrste lyuery of season / in so moche that after the reentre he was seased of the lande of lyke estate as he was byfore the feoffemente.

And soo remaynethe noo thynge / [Page] whervpon the straunger myght grounde his vse / but onely the bare graunte or en­tente of the feoffour whā he gaue the land to the feoffe vpon condicion that he shulde pay the rente to the straunger / and if nat / that it shulde be lawful to the straunger to entre / for the feoffement is auoyded by the reentre of the feoffour as I haue sayd by­fore / and as I sayd in the last Chapitre as I suppose a nude or bare graunte of hym that is seased of lande is nat sufficiente to begynne an vse vpon.

A bare graunte maye chaunge an vse as thou thy selfe agredest in the last Chapitre: why thā may nat an vse as well begyn vpon a bare graunt.

Whan an vse is ī Esse he that hathe the vse may of his mere mo­cion gyue it awaye if he wyll without re­compence as he myght the lande if he had it in possession / but I take it for a grounde that he can nat so begynne an vse without a lyuerey of season or vpon a recompence or bargayne / & that there is suche a groūd in the lawe that it maye nat so begynne it appereth thus / it hath ben alwaye holden for lawe that if a man make a dede of feoffement to a nother and delyuer the dede to hym as his dede / that in that case he to [Page 59] whome the dede is delyuered hath no tytle ne medelynge with the lande afore lyuerey of season be made to hym but only that he may entre and occupie the lāde at the wyll of the feoffour / and there is no boke saythe that the feoffour in that case is seased there of byfore lyuerey to the vse of the feoffe.

And in lykewyse if a man make a dede of feoffement of two acres of lande that lye in two shyres intendyng to gyue them to the feoffe and maketh lyuerey of season in the one shyre & nat in the other / in this case is it comonly holden in bokes that the dede is voyde to that acre where no lyuerey is made excepte it lye within the viewe saue onely that he maye entre & occupie at wyl as is aforsayde / and there is no boke that sayth that the feoffe shulde haue the vse of the other acre / for if an vse passed therby than were nat the dede voyde to all inten­tes / and yet it apperethe by the wordes of the dede that the feoffour gaue the landes to the feoffe / but for lacke of lyuerey of sea­son the gyfte was voyde and some thyn­keth it is here without lyuerey of seasō be made accordynge. But in the seconde case of the sayd two cases the feoffe may nat re­entre for non payment of the rente / and so [Page] the fyrste lyuerey of season continueth and standeth in effecte / and thervpon the fyrste vse maye wel begynne & take effecte in the straunger: of the lande whā the rent is nat payed vnto hym accordynge to the fyrst a­grement. And so me thynketh that in the fyrst case the vse is determined by cause the lyuerey of season where vpon it cōmenced is determined / and that in the seconde case the vse of the lande taketh effecte ī the strā ger for nat paymēt of the rēt by the graūt made at the fyrste lyuerey whiche yet con­tinueth in his effecte / and this my thīketh is the diuersite bytwene the cases.

yet natwithstandyng the reason that thou haste made me thynketh that if a man seased of landes makethe a gyfte therof by a nude promyse without any lyuerey of sea­son or recompēce to hym made: and graūt that he shalbe seased to his vse: that thou­ghe that ꝓmyse be voyde in the lawe: that yet neuertheles it muste holde and stande good in conscience and by the lawe of rea­son / for one rule of the lawe of reason is / y ^t we may do nothynge against the trouthe / and syth the trouthe is that the owner of the grounde hathe graunted that he shall be seased to the vse of the other: that graūt [Page 60] muste nedes stande in effecte or els there is no trouth in the grauntour.

It is nat agaynste the trouthe of the graū tour in this case thoughe by that graunte he be nat seased to the vse of the other / but it proueth that he hathe graūted / that the lawe wyll nat waraunt hym to graunte / wherfore his graunte is voyde. But if the grauntour had gone ferther and sayd that he wolde also suffre the other to take the ꝓfites of the landes without let or other in­terupcion / or that he wolde make hī estate in the lande whan he shulde be requyred / than I thynke in those cases he were boū ­den in conscience by that rule of the lawe of reason that thou hast remembred to perfourme them / if he intended to be bounden by his ꝓmyse / for elles he shulde go agaīst his owne trouthe and agaynste his owne ꝓmyse. But yet it shal make no vse in that case / nor he to whome the promyse is ma­de shall haue no accion in the lawe vppon that promyse althoughe it be nat perfour­med / for it is called in the lawe a nude or a naked promyse. And thus me thyn­kethe that in the fyrste case of the said two cases the graunte is nowe auoyded in the lawe by the reentre of the feoffoure / [Page] feoffour / and that the feoffour is nat boun­den by his graunte neyther in lawe nor cō science but that ī the secōd case he is boūd / so that the vse passethe frō hym as I haue sayd byfore.

I holde me con­tent with thy conceite for this tyme / but I pray the shewe me somwhat more at large what is taken for a nude cōtracte or a naked promyse in the lawes of Englāde / and where an accion maye lye there vpon and where nat.

I wyll with good wyll say as me thynketh therin.

¶What is a nude contracte or naked pro­myse after the lawes of Englande / and whether any accion may lye thervpon. The .xxiiii. Chapitre.

Fyrste it is to be vnderstande that contractes be grounded vpon a custome of the realme and by the law that is called (Ius gentium) and nat dy­rectely by the lawe of reason / for whan all thynges were in comon: it neded nat to haue contractes / but after ꝓperty was brou­ghte in: they were ryght expediente to all people / so that a man myght haue of his neyghboure that he had nat of his owne / and that coulde nat be lawfully but by his [Page 61] gyfte / by way of lendynge / concorde / or by some lease / bargaine / or sale / and suche bargaynes and sales be called contractes / and be made by assent of the parties vpon a­grement bytwene them of goodes or lan­des for money or for for other recompence / but of money vsuell / for money vsuell is no contracte. Also a concorde is properly vpō an agremēt bytwene the parties w ^t diuers artycles therin / some rysyng on the one ꝑt and some on the other / as if Iohan at style letteth a chambre to Henry herte and it is ferther agreed bytwene them that the said Hēry herte shall go to borde with the sayd Iohan at style / and the sayd Henry herte to paye for the chābre and bordynge a certayne sūme. &c̄. this is ꝓperly called a con­corde / but it is also a contracte and a good accion lyeth vpō it / howe beit it is nat moche argued in the lawes of Englāde what diuersitie is bytwene a cōtracte / a cōcorde / a ꝓmyse / a gyfte / a loue / or a pledge / a bar­gayne / a couenaunt / or suche other / for the intente / of the lawe is to haue the effecte of the mater argued and nat the termes / and a nude contracte is where a man makethe a bargayne or a sale of his goodes or lan­des w ^tout any recōpence appoynted for it. [Page] As if I saye to a nother I sell the all my lande or all my goodes and nothyng is as­signed that the other shall gyue or pay for it / that is a nude contracte / and as I take it: it is voyde in the lawe and conscience / and a nude or naked promyse is where a man promyseth an other to gyue hym certayne money suche a day or to buylde hym an house / or to do hym suche certayne ser­uyce / and nothynge is assigned for the money / for the buyldynge / nor for the seruyce / these be called naked promyses / bycause there is nothyng assigned why they shuld be made / and I thynke no accion lyethe in those cases thoughe they be nat perfour­med. Also if I promyse to a nother to kepe hym suche certayne goodes sauely to such a tyme / and after I refuse to take thē ther lyeth no accion againste me for it / but if I take them and after they be lost or empey­red throughe my negligent kepynge / there an accion lyeth.

But what o­pinion holde they that be lerned in the law of Englāde in suche promyses that be cal­led naked or nude promyses / whether doo they holde that they that make the ꝓmyse be boūden in cōscience to perfourme theyr promyse thoughe they can nat be compel­led [Page 62] therto by the lawe or nat.

The bokes of the lawe of Englāde treate lytell therof / for it is lefe to the determina­cion of doctoures / and therfore I pray the shewe me somewhat nowe of thy mynde therin / and than I shall shewe the therin somwhat of the myndes of diuerse that be lerned in the lawe of the realme.

To declare that mater playnly after the saynge of doctoures: it wolde aske a longe tyme and therfore I wyl touche it briefly to gyue the occasion to desyre to here more therin here after. Fyrste thou shalte vnderstande that there is a promyse that is called an aduowe / & that is a pro­myse made to god / and he that dothe ma­ke suche a vowe vpon a deliberate mynde entendynge to perfourme it is bounde in conscience to do it / thoughe it be onely made in the herte without pronouncynge of wordes / and of other promyses made to man vpon a certayne consideracion / if the promyse be nat agaynste the lawe.

As if A. promyse to gyue B. xx. pounde / bycause he hathe made hym suche a house or hathe lente hym suche a thynge or suche other lyke / I thynke hym boūde to kepe his promyse. But if his promyse be so naked [Page] that there is no maner of cōsideraciō why it shulde be made / than I thynke hym nat bounde to perfourme it / for it is to suppose that there was some errour in the making of the promyse / but if suche a promyse be made to an vniuersitie / to a citie / to y ^e churche / to the clergy / or to pore men of suche a place / and to the honoure of god or suche other cause lyke / as for mayntenaunce of lernynge / of the comon welthe / of the seruyce of god / or in relyefe of pouertie or suche o­ther / than I thynke that he is bounden in conscience to perfourme it thoughe there be no cōsideracion of worldly profite that the grauntour hath had or entēdeth to ha­ue for it / and in all suche promyses it must be vnderstande that he that made the pro­myse intended to be bounde by his ꝓmyse / for els comōly after al doctoures he is nat bounde / oneles he were bounde to it byfore his promyse. As if a man promyse to gyue his father a gowne that hathe nede of it to kepe hym fro colde / and yet thīketh nat to gyue it hym / neuertheles he is boūde to gyue it for he was bounde therto byfore.

Also after some doctours a man may be excused of suche a promyse in conscience by a casualite that cometh after the promyse if [Page 63] it be so that if he had knowen of that casu­alite at the makyng of the ꝓmyse he wolde nat haue made it. And also suche promyses if they shall bynde they muste be honeste / lawful / and possible / and elles they are nat to be holden in conscience though there be a cause. &c. And if the promyse be good and with a cause thoughe no worldly profyte shall growe therby to hī that maketh the promyse but onely a spirituall profyte as in the case byfore rehersed of a ꝓmyse ma­de to an vniuersitie / to a citie / to the chur­che / or suche other and with a cause / as to the honoure of god other / there it is moste comonly holden that an accion vpon those promises lyeth in the lawe canon.

Whether dost thou meane in suche promy­ses made to a vniuersite / to a citie / or to su­che other as thou haste reherced byfore / & with a cause / as to the honoure of god or suche other. That the partie shalbe boūde by his promyse if he intēded nat to be boū ­den therby ye or nay.

I thynk naye no more than vpon ꝓmyses made vnto comon persones.

And than me thinketh clerely that no accion can lye agaynst hym vpon suche promyses / for it is secrete in his owne cōcience whether he [Page] entended for to be bounde or naye. And of the entente inwarde in the herte: mannes lawe cane nat iuge / and that is one of the causes why the lawe of god is necessarye (that is to say) to iuge inwarde thynges / and if an accion shulde lye in that case in the lawe Canon / than shulde the lawe Canon iuge vpon the inwarde intente of the herte / whiche can nat be as me semeth.

And therfore after diuerse that be lerned ī the lawes of the realme: all promyses shall be taken in this maner. That is to say: If he to whome the promyse is made: haue a charge by reason of the promyse whiche hath also perfourmed: than in that case he shall haue an accion for that thynge that was promysed thoughe he that made the promyse haue no worldly profite by it. As if a mā saye to a nother / heele suche a pore mā of his dissease / or make suche an hyghe waye / and I shall gyue the thus moche / and if he do it I thynke an accion lyeth at the comon lawe. And more ouer thoughe the thynge that he shall do be al spirituall: yet if he perfourme it I thynke an accion lyethe at the comon lawe. As if a man say to a nother / fast for me all the next Lent and I shall gyue the .xx. pounde / & he per­fourmethe [Page 64] it / I thynke an accion lyeth at the comon lawe. And in lyke wyse if a mā saye to a nother mary my doughter and I wyll gyue the .xx. pounde. Vpon this pro­myse an accion lyeth if he mary his doughter / and in this case he cane nat discharge the promyse thoughe he thought nat to be bounde therby / for it is a good contracte / and he maye haue Quid pro quo / that is to saye / the prefermente of his dough­ter for his money. But in those pro­myses made to an vniuersite or such other as thou hast remembred byfore / with such causes as thou hast shewed / that is to say / to the honoure of god / or to the encrease of lernynge / or suche other lyke / where the ꝑ­tie to whome the promyse was made is bounde to no newe charge by reason of the ꝓmyse made to hym but as he was boūde to byfore / there they thynke that no accion lyeth agaynst hī though he perfourme nat his promyse / for it is no contracte / and so his owne conscience must be his iuge whether he intended to be bounde by his pro­myse or nat. And if he intended it nat: than he offended for his dissimulacion only / but if he intended to be bounde: than if he per­fourme it nat: vntrouthe is in hym / and he [Page] proueth hym selfe to be a lyer whiche is ꝓhibited as well by the lawe of god as by the lawe of reason / and ferthermore many of that be lerned in the lawe of Englande holde that a man is as moche bounden in conscience by a promyse made to a comon persone if he intended to be bounde by his ꝓmyse as he is ī the other cases that thou haste remembred of a promyse made to the churche / or to the clergie / or such other / for they say that as moche vntrouth is in the brekynge of the one as of the other / & they say that the vntrouthe is more to be pon­dered than the persone to whome the pro­myses be made.

But what holde they if the ꝓmyse be made for a thīg paste / as I promyse the .xl. poūde for that thou hast buylded me suche a house / lyethe an accion there.

They suppose nay / but he shalbe bounde in conscience to perfourme it after his entente as is byfore sayd.

And if a man promyse to gyue a nother .xl. pounde in recompēce for suche a trespas that he hathe done hym / lyeth an accion there.

I suppose nay / and the cause is for that suche ꝓmyse be no perfite contractes / for a contracte is properly where a man for his money shall [Page 65] haue by assēt of the other partye certayne goodes or some other profite at the tyme of the contracte or after / but if the thynge be ꝓmysed for a cause that is past by way of a recompēce thē it is rather an accorde then a contracte / but then the lawe is that vpon suche accorde the thynge that is ꝓ­mysed in recompence muste be payde or delyuered in hande / for vpon an accorde there lyeth no accion.

But in the case of trespas whether holde they that he be bounde by his promise though he intē ­ded nat to be bounde thereby.

They thynke nay no more thē in the other cases that be put before.

In the other cases he was nat bounde to that he promysed but onely by his promyse / but ī this case of trespas he was boūde ī consci­ence before the promise to make recōpence for the trespas and therfore it semeth that he is bounde in conscience to kepe his pro­myse thoughe he intēded nat to be boūden thereby.

Though he were bounde before the promyse to make recompēce for his trespas yet he was nat bounden to no sūme in certayne but by his promyse / and bycause y ^t y ^e sūme may be to moche or to lytel and nat egal to the trespas / and that [Page] the party to whome the trespas was done natwithstādyng the promyse is at lyberty to take his acciō of trespas if he will ther­fore they holde that he maye be his owne iuge in cōscience whether he intēdyd to be bounde by his promyse or nat as he may in other cases / but if it were of a dette / then they holde that he is bounden to performe his promyse in conscience.

What if in the case of trespas he afferme his promyse with an othe.

Then they holde that he is bounde to per­forme it for sauinge of his outhe thoughe he intended nat to be boūden but if he intē ded to be bounde by his promise / then they say that an othe nedeth not but to enforce the ꝓmyse for they say he breketh the lawe of reasō whiche is y ^t we may do nothyng agaynste the trouthe / as well when he breketh his promyse that he thought in his owne herte to be boūde by as he dothe whē he breketh his othe thoughe the offence be not so greate by reasō of the periury more ouer to that thou sayste that vpon suche promyses as thou hast rehersyd be­fore shal lye an accyō after the lawe canon verylye as to y ^t in this realme there cā no acciō lye theron in y ^e spiritual courte if y ^e [Page 66] promyse be of a temporall thynge for a ꝓ­hybicion or a premunire facias shulde lye in that case.

That is meruayle syth there can no accyon lye theron in the kynges courte as thou sayst thy selfe.

That maketh no mater / for though there lye no accion in the kynges courte agaynst executours vpō a symple contracte / yet if they be suyd in that case for the dette in the spirituall court a pro­hybicion lyeth. And in lyke wyse if a mā wage his lawe vntruly in an accyō of dette vpō a cōtracte in the kynges courte / yet he shall not be sued for that periury in the spirituall courte / and yet no remedy lyeth for that periurye in the kynges courte / for the prohybicion lyeth not onely where a man is sued in the spirituall courte of su­che thynges as the partye maye haue his remedie ī y ^e kynges courte but also where the spirituall courte holdeth plee in suche case where they by the kynges p̄rogatiue and by the aūcyent custome of the realme ought none to holde.

I wyl take aduysement vppon that thou haste sayde in this matter tyll another tyme & I praye the nowe procede to another que­styon.

¶The .xx. question of the student. The .xxv. chapitre.

A man hath two sones / one borne before espousels and the other after espousels and the father by his wyll bequetheth to hys sonne and heyre all hys goodes whyche of these two son­nes shall haue the goodes in conscience.

As I sayd in our fyrste dya­logue in latyn the last chapitre / the doute of this case depēdeth not in the knowyng what conscyence wyll in the case / but ra­ther in knowynge whiche of the sones shall be iuged heyre (that is to saye) whe­ther he shalbe takē for heyre that is heyre by the spirituall lawe or he that is heyre by the law of the realme / or els that it shal be Iuged for hym that the father toke for heyre.

As to that poynte ad­myt the fathers mynde not to be knowen or els that his mynde was that he shulde be taken for heyre that sholde be iuged for heyre by that law that in thꝭ case it ought to be iuged by. And thā I pray the shewe me thy mynde therin / for though the que­styon be not dyrectly dependynge vpon that poynte to se what consicence wyll in [Page 67] this case / yet it is ryght expedient for the well orderynge of cōscience that it be kno­wen after what lawe it shalbe Iuged for if it ought to be iuged after the temporall lawe who shulde be heyre: than it were agaynste conscience if the Iuges in the spirituall lawe shulde Iuge hym for heyre that is heyre by the spirituall lawe / & I thynke they shulde be bounde to restitu­cion therby / & therfore I pray the shewe me thyn oppinion after what lawe it shall be iuged.

Me thynketh that in this case it shalbe iuged after the lawe of the churche / for it apperth that the by­quest is of goodes / and therfore if any sute shalbe taken vpon the execucyon of the wyll for that bequest it muste be takē in the spirituall courte & when it is depen­dynge in the spirituall courte me thyn­keth it muste be iuged after the spirituall lawe for of the temporall lawe they haue no knowlege / nor they are not bounde to knowe it as me thynketh & more stronger not to iuge after it. But if the byquest had ben of a chatell reall as of a lease for terme of yeres or of a warde or suche other then the matter shulde haue come ī debate in the kynges courte / and thē I thynke [Page] the iuges there shulde iuge after the lawe of the realme and that is that the yonger brother is heyre / and so me thynketh the dyuersytye of the courtes shall make the dyuersytye of the iugement.

Of that myght folowe a greate inconue­nyēce as me semeth / for it myght be that in suche case bothe chatels realle & chatels personel were in y ^e wyll / & thā after thyne opinion y ^e one sonne shulde haue the cha­tels personel: & the othersone the chatels real & it can nat be cōuenyently taken as me thīketh but that the fathers wyll was that the one sōne sholde haue all & not to be deuyded. Therfore me thynketh that he shal be iuged for heyre that is heyre by the comon lawe. And that the iuges spiritu­all in this case be bounde to take notyce what the comō lawe is for syth the thyn­ges that be in varyaunce be temporall that is to say / the goodes of the father / it is reason that the ryght of them in thys realme shall be determyned by the lawe of the realme.

Howe maye that be for the Iuges spirituall knowe not the lawe of the realme ne they can not knowe it as to the mooste parte of it for moche parte of the lawe is in suche speche that fewe men haue knowlege of it & there [Page 68] is no meanes ne famylyarytye of study bytwene them that lerne the sayd lawes / for they be lerned in seuerall places & after dyuers wayes & after diuers maners of techynges & in diuers speches & comonly the one of them haue none of the bokes of the other / and to bynde the spirituall Iuges to gyue iugement after that lawe that they knowe not / ne that they can not come to the knowlege of / it semeth nat resonable.

They must do therin as the kynges Iuges must do when any matter cometh before them that ought to be Iuged after the spirituall lawe / whereof I put dyuers cases in our fyrste dialoge in englyssh the .vii. chapitre / that is to say / they muste eyther take / knowlege of it by theyr owne studye / orelles they muste enquere of thē that be lerned in the lawe of the churche what the lawe is & in lykewyse muste they do. But it is to doute that some of them wolde be lothe to aske any suche questyon in suche case / or to confesse that they are bounde to gyue theyr iugement after the tēporall lawe & surely they may lyghtly offend theyr con­science.

I suppose that some be of opynion that they are not boūden to [Page] knowe the lawe of the realme and verelye to my remēbraūce I haue not herde that iuges of the spirituall lawe are bounde to knowe the lawe of the realme

And I suppose that they are nat onely bounden to knowe the lawe of the realme or to do that in them is to knowe it whan the knowlege of it openeth the ryght of the matter that dependeth byfore thē but that they be also boūden to knowe where and ī what case they ought to Iuge after it / for in suche cases they muste take the kynges lawe as the lawe spiritual to that poynte and are bounden in conscience to folowe it as it may appere by diuers cases wherof one is this. Two ioynttenauntes be of goodes & the one of them by his laste wyl bequeteth all his parte to a straūger and maketh the other ioynttenaunt his executor and dyeth / if he to whome the be­quest is made sue the other iointtenaunt / vpon the legacie as executour &c. vpō this matter shewed / the iuges of the spirituall lawe are bounden / to iuge the wyll to be voyde / by cause it is voyde by the lawe of the realme wherby the iointtenaunt hath right to the hole goodes by y ^e title of the suruiuour & is iuged to haue y ^e goodes as [Page 69] by the fyrst gyfte whiche is before y ^e tytle of y ^e wyl & must therfore haue p̄ferremēt as y ^e elder title & if y ^e iuges of y ^e spiritual courte iuge other wyse: they are boūde to restituciō & by lyke reason the executours of a man that is outlawed the tyme of his dethe may dyscharge them selfe in the spirituall courte of the perfourmyng of legacyes / bycause they be chargeable to the kynge and yet there is no suche lawe of outlagary in the spirituall lawe.

By occasyon of that thou haste sayde before I wolde aske of the this question. If a parson of a churche alyen a porcyon of dysmes accordyng as the spiri­tuall lawe hathe ordeyned / is nat that alienacion sufficient thoughe it haue nat the solempnities of the temporall lawe.

I am in doute therin yf the porcion be vnder the fourth parte of the value of the churche but yf it be to the va­lue of the .iiii. parte of the churche or a­boue / it is not sufficient and therfore was the wrytte of ryght of dysmes ordeyned / & if ī a wrytte of ryght of dysmes it be Iu­ged in the kynges court for the patrone of the successoure of hī that alieneth bycause [Page] the alyenacyon was nat made accordynge to the comon lawe / than the Iuges of the spirituall lawe are bounden to gyue theyr iugement accordyng to the iugemēt gyuē in the kyngs court. And in lyke wyse if a parson of a churche agre to take a pen­cyō for the tythe of a mylle / yf the pencyō be to the fourthe parte of the value of the churche or aboue / than it muste be alye­ned after the solempnytyes of the kynges lawes as landes & tenementes muste / or elles the patrone of the successoure of hym that alyened maye brynge a wryt of ryght of dysmes & recouer in the kynges courte / & than the Iuges of the spirituall courte are bounden to gyue Iugemēt in the spi­ritual courte accordyngly as is aforesayd

I haue herde say that a wryt of ryghte of dysmes is gyuē by the statute of westmynster. the seconde & that speketh onely of dysmes and not of pencion.

where a parson of a chur­che is wrongfully deforcyd of his dysmes and is lette by an Indicauit to aske his dysmes in the spirituall court than his patrō may haue a wrytte of ryght of dys­m [...] & by the statute that thou spekest of / for there lay none at the comon lawe for the [Page 70] person had there good ryght thoughe he were let by the īdicauit to sue for his right But whan the persō had no remedy at the spirituall lawe there a wrytte of ryght of dismes lay for the patrō by the comō lawe as well of pencyons as of dysmes / & some saye that in suche case it lay of lesse than of the fourthe parte by the comō lawe but that I passe ouer. And the reason why it lay at the comō lawe if the dysme or pen­cyōs were aboue the fourth parte. &c. was this by the spirituall lawe the alienacyō of the persō with assent of the bisshope and of the chapitre shall barre the successour without assente of the patrone / and so the patrone might lese his patronage & he nat assentinge therto for hys encūbent myght haue no remedy but ī the spirituall court and there he was barred wherfore the pa­trone ī that case shall haue his remedy by the comon lawe where the assent of the ordinarie and chapitre without the patrone shall nat serue as is sayd before. But where the encumbent had good ryght by the spirituall lawe there lay no remedy for the patrone by the comō lawe though the encumbēt were let by an indicauit / & for that cause was the sayde statute made and [Page] it lyeth as wel by the equitie for offeringꝭ and pensions as for dismes Than farther I wolde thynke that where the spirituall court may holde ple of a temporall thīge that they must iuge after the temporall lawe / & that ygnoraunce shall not excuse them in that case for by takynge of theyr office they haue boūde them selfe to haue knowlege of as moch as belōgeth to ther offyce as al Iuges be spiritual & tēporal. But if it were in argument in this case whether the eldest sōne myght be a preste by cause he is a bastarde ī y ^e tēporal lawe that shuld be iuged after y ^e spiritual lawe for y ^e matter is spiritual.

yet notwithstandynge all the reasons that thou haste made I cā not se howe the iuges of the spirituall lawe shall be compelled to take notice of the temporall lawe seynge that the most parte of it is in the frenche tonge for it were harde that euery spiri­tuall iuge shulde be compelled to lerne that tōge: But if the lawe of the realme were set ī suche order y ^t they that ītende to studye y ^e lawe canō might first haue a syght of the lawe of the realme as they haue now of y ^e lawe ciuil & y ^t some bokꝭ & treatises were made of cases of cōsciēce [Page 71] cōcernynge those two lawes as there be nowe cōcernynge the lawe ciuil and the lawe canō I wolde assēt y ^t it were ryght expedyēt & thā reasō myght serue y ^e bet­ter y ^t they shulde be compelled to take no­tyce of the lawe of the realme as they be nowe bounden in suche countreys as the lawe ciuill is vsed to take notyce of that lawe.

Me thynketh thyne oppinion is ryght good and reasonable but tyll suche an order be taken they are boūde as I suppose to enquere of theym that be lerned ī the comon lawe what the lawe is / and so to gyue theyr iugement accordyng / if they wyll kepe them selfe fro offence of cōscyence / and for as moche as thou haste well satisfied my mynde in all these questions before. I praye the nowe that I maye sōwhat fele thy myn­de in dyuers artycles that be wryten in dyuers bokes for the orderynge of cōscy­ence vpon the lawe canon and ciuill / for me thynketh that there be dyuers conclusyōs put in dyuers bokes / as ī the sūmes callyd Summa angelica / and Summa rosella / and dyuers other for the good order of cōsciēce that be agaynst the lawe of this realme & rather blynde conscience [Page] thā to gyue any lyght vnto it.

I pray the shewe me some of those cases

I wyll with good wyll.

❧Whether an abbot may with cōsciēce present to an aduouson of a churche that belōgeth to the house with­out assente of the couent. The .xxvi. chapitre.

It appereth ī the chapitre Eanoscitur de hus que fiunt a pre­lates / the whiche chapitre is re­cited in the summe called Summa ange­lica in the title abbas the .xxvii. article that he maye nat without any costume or any speciall priuilege do helpe there iii.

Trouthe it is that there is su­che a decretale / but they that be lerned in the lawe of Englande holde that decretale byndeth not in thys realme / and thys is the cause why they do holde that oppynyon. By the lawe of the realme the hole disposicion of the lādes and goodes of the abbey is the abbot only for the tyme that he is abbot & not in the couent / for they be but as deed persones ī the lawe & therfore the abbot shall sue & be sued onely without [Page 27] the couēt do homage fealtie atturne make leases & presēt to aduousons onely in his owne name / & they saye farther that this aucthoritie can not be taken fro hym but by the lawe of the realme / and so they say that the makers of that decretale excedyd theyr power wherfore they say it is not to be holden in conscience / no more than if a decre were made that a lease for terme of yeres or at wyll made by the abbot with­oute the couēte shuld be immedyatly voy­de / & so they thynke that the abbot may ī thys case presēt ī his owne name without offēce of cōscience by cause the sayd decre­tale holdeth nat ī this realme.

But many be of oppynyō that no man hath aucthorytye to present in ryght and conscience to any benefice with cure but the pope or he that hath his aucthorytye thereī deriuied fro the Pope for they saye that for as moche as y ^e Pope is the vycar general vnder god & hath the charge of y ^e soules of all people that be in the floke of Christes churche it is reasō y ^t syth he cannat ministre to all ne do y ^t is necessarie to all the people for theyr soule helthe in his owne persō that he shall assygne deputyes for his dyscharge ī that behalfe / & bycause [Page] patrons clayme to present to churches in this realme by theyr owne ryght without tytle deriuied fro the Pope they saye that they vsurpe vpon the popes authoritie / & therfore they conclude that thoughe the abbot haue title by the lawe of the realme to present ī this case ī his owne name that yet bycause that title is against the popes prerogatiue that that title ne yet the lawe of the realme that mayntenyth that tytle holdeth not ī cōscyence. And they say also that it belongeth to the lawe canon to de­termine y ^e ryght of p̄sentmēt of benefices for it is a thynge spirituall and belongeth to the spirituall iurisdicciō as the depry­uaciō fro a benefice doth & so they saye y ^e sayd decretale bīdeth ī cōscyēce thoughe ī the lawe of the realme it binde nat.

As to thy fyrste cōsideracion. I wolde ryght well agre that if the patrōs of chur­ches in this realme claymed to put encumbentes in to suche churches as shulde fall voyde of theyr patronage without p̄sēting them to the bysshop or if they claymed that y ^e bhysshop shold admit suche encumbent as they shulde present without any examinacion to be made of his abylite in that behalfe / that that clayme were agaīst [Page 73] reasō and cōscyēce for the cause that thou hast rehercyd but for as moche as the pa­trōs ī thꝭ realme clayme no more but to p̄ ­sent theyr encūbentes to the bisshop & thē the bysshop to examin the abylitie of the encumbēt / & if he fynde hym by the exami­nacyō nat able to haue cure of soule / he thē to refuse hī & y ^e patrone to presēt another that shalbe able / & if he be able thā y ^e bis­shop to admit hī īstitute hī & īducte him. I thīke y ^t this clayme & theyr p̄sentemētes therupon stande with good reason and cō ­scyence / and as to the seconde considera­cyō it is holden in the lawes of the realme that the right of presētement to a churche is a temporall enherytaūce & shall descēde by course of enheritaūce fro heyre to heyre as lādes & tenementes shall & shall be takē as an asses as lādes & tenemētes be & for the tryall of the ryght of patronages be ordeyned ī the lawe diuers accyōs for thē that be wrōged in that behalfe as writtes of ryght of aduouson Assises of [...]aren presentement Quare impedit & diuers other / whiche alwaye withoute / time of mynde haue ben pledyd in the kynges courtes as thinges preteyning to his crowne & roiall dygnytie / and therfore they saye that in [Page] this case his lawes ought to be obeyed in lawe and conscience.

If it come in variaunce whether he that is so p̄sented be able or nat able be whome shall the abilitie be tried.

if the ordi­narie be nat partie to the accyon it shall be tried be the ordinarie / and if he be partie it shall be tryed be the metropolitane.

Than the lawe is more rea­sonable in that poynt than I thought it had ben but ī the other poynt I will take aduisement in it tyll a nother tyme / and I pray the shewe me thy mynde in thꝭ poynt if an abbot name his couent with hym in his presentacyon doth that make the p̄sentacion voyde in the lawe or is the presen­tacyon good that nat withstāding.

I thynke it is nat voyd therfore but the namyng of theym is voyde & a thyng more thā nedeth / for if the abbot be distur­bed he muste brynge hys accion in hys owne name withoute the couente.

Then I perceyue well that it is nat prohibit in the lawe of Englande but that the abbot may name the couent ī his presentacion with hym / and also take theyr assent whom he shall presenet if he wyll / and then I holde it the surest waye [Page 74] that he so do / for in so doynge he shall nat offēde nother in lawe nor cōsciēce.

To take the assēt of the couēt whome he shall presente and to name them also in the presentacyon / knowynge that he may do otherwyse bothe ī lawe and conscience if he will / is no offēce. But if he take theyr assent or name them with hym in the pre­sentacyon thinkynge that he is so bounde to do in lawe and conscyence / settyng a cō ­science where none is / and regareth nat the lawe of the realme that wyll dyscharg his conscyence in this behalfe if he will so that he present an able man as he maye do without theyr assent / there is an erroure and offence of conscynce in the abbot. And in lyke wise if the abbot presēt ī his owne name / and therfore the couent sayth that he offendeth conscyence ī that he obserueth nat the lawe of the churche for that he ta­keth nat theyr assente / than they offende in iuginge hym to offende / that offendeth nat And therfore the sure way is ī this case to Iuge bothe the sayd lawes of suche effecte as they be / and nat to set an offence of con­science by brekyng of the said decre whiche standeth nat ī effecte ī this behalfe within this realme.

¶If a man fynde beastes in his grounde doynge hurte / whether may he by his owne auctoritie take them and kepe them tyl he be satysfyed for the hurt. The .xxvii. Chapitre.

This question is made in the Sūme called summa rosella in the title of restytucyō / that is to saye restitucio .xiii. the .ix. article / and there it is answered that he may nat take them for to holde them as aplegd tyll he be satisfied for the hurte: but that he may take them & kepe them tyll he knowe who oweth them that he may therby lerne agaynst whome to haue his remedye. Is nat the lawe of the realme so in lyke wise.

No verily / for by the lawe of the realme: he y ^t in y ^t case hath the hurte may take the bea­stes as a dystresse and put them ī a pounde ouert so it be within the same shyre / & there let them remayn tyll the owner will make hym amendes for the hurt.

what callest thou apound ouerte.

A pounde ouerte is nat onely suche poundes as be comonly made in townes and lordshyppes for to put in beestes that [Page 75] be dystreyned / but it is also euery place where they may be ī lawfully nat makīge the own our an offēder for ther beyng ther & that it be there also that the owner may lawfully gyue the beestes meate & drīke whyle they be ī pounde.

And if they dye ī poūde for lake of mete whose ieopereye is it.

If it be suche a poū de ouerte as I speke of it is at the peryll of him that owyth the beestes so that he that had the hurte shall be a lybertie to take his accion for the trespas if he wyll & if it be nat a lawfull pounde thē it is at the peryll of hym that dystrayned / and so it is if he driue them out of the shyre And they dye there.

I put case that he that owyth the beestes offer suffycyēt amē des & the other wyll nat take it but kepeth the beastes styll in pounde / may nat the ouer take them out.

No for he may nat be his owne iuge. And if he do an accyon lyeth agaynst hym for brekyng of the pounde / but he must sue a repleuyn to haue his beastes delyuered hym out of pounde / and therupon it shall be tryed by .xii. men whether the amendis that was offred were suffyciēt or nat / & if it be founde that the offer was nat suffycyent: than he [Page] that hath the hurte shall haue suche amendes as the .xii. mē shall asses.

If it be founde by the .xii. men that the amendes were suffycent / shall he that re­fused to take it haue no punysshment for his refusell & for kepyng of the beestes in pounde after that tyme.

I thynke no / but that he shall yeld damages in the repleuyn because the yssue is tryed agaynste hym.

I put case that the beastes after that refusell dye in poūde for lacke of meate at whose ieoperdie is it than.

At the ieoperdie of him that owid the beastes as it was before for he is bounde at his peryll by reason of that wronge that was done at the begyn­nynge to se that they haue meate as lōge as they shalbe in poūde: oneles the kynges writte come to deliuer them & he resisteth it / for after that tyme it wyll be at his ieo­perdye if they dye for lacke of meate & the dammages shalbe recouered in an accion broughte vpon the statute for disobeynge the kynges writte.

☞Whether a gyfte made by one vnder the age of .xxv. yere be good. The .xxviii. Chapitre.

It appereth in Summa angelica in the title donacio prima the .vii. article that a mā before the age of .xxv. yere may nat gyue withoute it be with the auctoritie of his tutoure. Is it nat so likewyse at the comon lawe.

The age of Infaūtes to gyue or selle theyr landes & goodes in the law of Englāde at his .xxi. yere / or aboue / so that after that age the gifte is good / and before that age it is nat good / by whose assent so euer it be / except it be for his meate & drin­ke or apparell / or that he do it as execu­tour in perfourmaunce of the will of his testatour or in some other lyke cases that nedeth nat to be reherced here / and that age muste be obserued in this realme in lawe & conscience & nat the sayde age of .xxv. ye­re.

I put case it were ordey­ned by a decree of the churche y ^t if any mā by his will bequethe goodes to an other / & willeth that they shalbe deliuered to hym at hꝭ full age & y ^t ī that case .xxv. yere shal be takē for y ^e ful age shal nat that decre be obserued & stande good after the lawe of Englāde.

I suppose it shal nat for though it belōge to y ^e churche to haue y ^e ꝓbate & y ^e execuciōs of testamētꝭ made of goodes & chatels except it be in certayne [Page] lordshypes & seygnories that haue thē by prescripcion / yet the churche maye nat as it semeth determine what shalbe the law­full age for any persone to haue the goodes for that belōgeth to the kynge & his lawes to determine / & therfore if it were ordey­ned by a statute of y ^e realme that he shulde nat in suche case haue the goodes tyll he were of the age of .xxv. yere that statute were good & to be obserued as well in the spirituall lawe as in the law of the realme & if a statute were good in that case / than a decre made therof is nat to be obserued / for the orderynge of the age may nat be vnder two seuerall powers / & one ꝓpertie of eue­ry good lawe of man is that the maker ex­cede nat his auctoritie / and I thynke that the spirituall Iuges in that case ought to iuge the full age after the lawe of the real­me seynge that the matter of the age con­cerneth temporall goodes / & I suppose ferther that as the kynge by auctoritie of his parliament may ordeyne that all wylles shalbe voyde & that the goodes of euery mā shalbe disposed in suche maner as by statute shulde be assigned: that more stronger he maye appoynte at what age suche wil­les as be made shalbe perfourmed.

[Page 77]Thynkest thou than that the kyng may take awaye the power of the ordina­rie that he shall nat call executours to ac­cōpte.

I am somwhat in dout therī / but it semeth that if it myght be en­acted by statute that all willes shulde be voyde as is aforesayde: that thā it myght be enacted that no man shulde haue auctoritie to call none to accompte vpon suche willes but suche as the statute shall therin appoīte / for he that may do the more may do the lesse / nat withstandynge I wyll no­thynge speke determinately in that poynt at this tyme / ne I meane nat that it were good for to make a statute that all wylles shulde be voyde / for I thynke them righte expedient / but myne intēt is to proue that the comon lawe may ordeyne the tyme of the full age / as well in wylles of temporal thynges as otherwyse / & also that no will shalbe made. And if it may so do: than mo­che stronger it belongeth to the kynges lawes to interpretate willes concernyng tē ­porall thynges as well whan they come ī argument before his Iuges: as whā they come in argument before spirituall Iuges & that they ought nat to be iuged by seue­rall lawes (that is to saye) by the spiritual [Page] iuges in one maner: & by the kinges iuges in another maner.

☞ If a man be conuicte of heresye before the ordinari / whether his goodes be forfayth. The .xxix. Chapitre.

It appereth in Summa angelica in the title Donatio prima the .xiii. article / that he that is an heretyke may nat make executoures / for in the lawe his goodes be forfet / what is the lawe of the realme therin.

If a man be conuicte of heresie and abiure he hath forfet no goodes / but if he be conuicte of heresye & be deliuered to laye mēnes hā des than hath he forfet all his goodes that he hath at the tyme that he is deliuered to them / thoughe he be nat put in execucion for the heresye / but his landes he shall nat forfet excepte he be dede for the heresye / & than he shall forfet thē to the lordes of the fee / as in case of felonie excepte they be holden of the ordinarie / for thā the kynge shal haue the forfeture / as it appereth by a sta­tute made the seconde yere of kynge Hen­ry the .v. the .vii. Chapitre.

Me thynket that as it belongeth onely to [Page 78] the churche to determine heresyes / that so it belongeth to the churche to determine what punisshemēt he shall haue for his he­resye / excepte deth whiche they maye nat be iuges in / but if the churche decre that he shall therefore forfet his goodes me thī keth that they be forfet by that decre.

Nay veryly for they be tēpo­rall & belonge to the iugement of the kyn­ges court & I thynke the ordinarie might haue set no fine vpon none empeched of heresye tyll it was ordeyned by the statute of Henry the .iiii. that he maye set a fyne in that case if he se cause / and than the kynge shall haue that fyne as in the sayde statute appereth.

☞Where diuers patrons be of an auous [...] & the churche voydeth / the patrōs varie in theyr presentementes / whe­ther the bisshope shall haue libertye to present whiche of the encūbētes that he wyll or nat ⸫ The .xxx. Chapitre.

This question is asked in Sūma rosella ī y ^e title Patronꝰ y ^e ix. article & there it appereth by the [Page] better oppinion that he may present whe­ther clerke he wyll / howe be it the maker of the sayde summe / sayth that by the / ri­goure of the lawe the bisshope in suche case may present a straūger because the patrōs agre nat / & in the same chapitre patronus the .xv. article. It is sayde that he muste be preferred that hath the moste merites and hath the moost parte of the patrons. And if the nombre be egall / that than it is to cō syder the merites of the patrons & if they be of lyke merite / than maye the bisshop cō maūde them to agre & to present agayne. And if they can nat yet agre than the libertie to present is gyuē to the bisshop to take whiche he wyll / & if he may nat yet present without greate trouble than shall the bis­shop order the churche in the beste maner he can / & if he can nat order it / than shal he suspende the churche & take awaye the re­likes / to the rebuke of the patrōs / & if they will nat be so ordered than muste he aske helpe of the temporalitie / & in the .xv. arti­cle of the sayde title Patronꝰ / It is asked whether it be expedient in suche case that the more parte of the patrōs agre hauyng respecte to all the patrons / or that it suffise to haue the more parte in cōparison of the [Page 79] lesse parte as thus. There be .iiii. patrons two present one clerke: the thyrde presen­teth another: & the fourth another / he that is presented by .ii. hath nat the more parte in comparison of all patrons for they be egall / but he hath the more parte hauynge respect to the other presentemētes / to this question it is answered that other the pre­sentement is made of them that be of colage & there is requisite the more parte ha­uīge respecte to all the colage / or elles eue­ry mā presenteth for hym selfe as comōly do laye men that haue the patronage of theyr patrimony / & than it suffiseth to ha­ue the more parte in respecte of the other partes / doth nat the law of Englāde agre to these diuersities.

No veryly

What order than shalbe takē in the lawe of Englande if the patrons varie in theyr presentementes.

After the lawes of Englande this order shalbe taken / if they be ioyntenaūtes or te­nauntes in comon of the patronage / & they vary in presentemente the ordinary is nat bounden to admitte none of theyr clerkes nether y ^e more parte nor the lesse / & if the vi. monethes passe or they agre thē he may present by the laps. But he may nat presēt [Page] within the .vi. monethes / for if he do they maye agre & brynge a Quare impedit a­gaynste hym / & remoue his clerke / & so the ordinarie shalbe as distourboure. And if y ^e patrons haue the patronage by discēte as coperceners than is the ordinarie bounde to admitte the clerke of the eldest syster for the eldest shall haue the preferment in the lawe if she wyll / & than at the nexte auoy­daunce the nexte syster shal present & so by turne one syster after another tyll all the systers or theyr heyres haue presented / and than the eldest syster shall begyn agayne / & this is called a presentynge by turne / & it holdeth alway betwene coperceners of an aduouson / excepte they agre to presēt togyder / or that they agre by cōposicion to presente in some other maner / & if they do so that agrement muste stāde / but this must be alway excepte that if at the fyrste auoydaunce that shalbe after the dethe of the comon auncestre the kynge haue the warde of the longest doughter / that thā the kyng by his prerogatiue shall haue the presentement. And at the nexte auoydaūce the el­dest syster & so by turne. But it is to vnder­stande that if after the dethe of the comon aūcestre the churche voydeth & the eldest syster [Page 80] presented togyder with another of the systers / & the other systers euery one ī theyr owne name or togyder that in y ^t case the ordinarie is nat bounden to receyue none of theyr clerkes but may suffre the churche to renne in to the lapas as it is sayd before for he shall nat be bounde to receyue the clerke of the eldest syster but where she presenteth in her owne name. And in this ca­se where the patrones varye in presente­ment the churche is nat properlye sayd le­tigiouse so that the ordinarie shuld be boū de at his perill to directe a writte to enquere (de Iure patronatus) for that writ lieth where two presente by seuerall titles / but these patrōs present all in one title / & therfore the ordinarie maye suffre it to passe if he wyll in to the laps / & this maner of pre­sentemētes muste be obserued in this realme in lawe & conscience.

☞ Howe lōge tyme the patron shal haue to presente to a benefice. The .xxxi. Chapitre.

Thꝭ questiō is asked ī Sū ma āgelica ī y ^e title Ius patrona [...]ꝰ the .xvi. article / & there it is āswered [Page] that if the patron be a lay mā that he shall haue .iiii. monethes / & if he be a clerke he shall haue .vi. monethes.

And by the comon lawe he shall haue .vi. monethes whether he be a lay man or a clerke / & I se no reason why a clerke shulde haue more respite than a lay mā: but rather the contrary.

Fro what tyme shal the .vi. monethes be accōpted.

That is in diuers maners after the maner of the voydance / for if the churche voyde by dethe / creacion / or cession: the .vi. mone­thes shalbe cōpted fro the dethe of the en­cumbent / or fro the creacion / or cession / wherof the patron shalbe cōpelled to take notice at his peryll / & if the voydance be by resignacion or depriuacion: than the .vi. monethes shall begyn whan the patron hath knowlege gyuen hym by the bisshop of the resignacion or depriuacion.

what if he haue knowlege of the re­signacion or depriuacion & nat by the bis­shope but by some other / shall nat the syxe monethes begyn: thā fro the tyme of that knowlege.

I suppose that it shall nat begyn tyll he haue knowlege gyuen hym by the bisshope.

An vnion is also a cause of voydaunce howe [Page 81] shall the .vi. monethes be rekened there.

There can no Vnion be made but the patrons muste haue knowlege / & it muste be apoynted who shall present after that vnion / that is to saye / one of them or bothe / eyther ioītly or by tunre one after another as the agrement is vpon the vniō / & sythe the patron is priuy to the auoidāce & is nat ignorante of it: the .vi. monethes shalbe accompted fro the agremente.

I se well by the reason that thou haste made in this chapitre that ignoraunce sōtyme excuseth in the lawe of En­glande / for in some of the sayde auoydaunces it shall excuse the patrones as it appe­reth by thy reasons aboue / & in some it shal nat / wherefore I pray the shewe me som­what where ignorāce excuseth in the lawe of Englande & where nat after thyne op­pinion.

I wyll with good wil here after do as thou sayste if thou put me in remembraūce thereof. But I wolde yet moue the somwhat ferther in suche que­stions as I haue moued the before / concernyng the diuersities betwene the lawes of Englāde & other lawes / for there be many mo cases therof that as me semeth haue right greate nede for the good order of conscience [Page] of many persons to be reformed & to be brought in to one oppinion bothe a­monge spirituall & tēporall / as it is in the case where doctours holde opinion that y ^e statutes of laymen that restrayne libertie to gyue landes to the churche shulde be voyde / & they saye ferther that if it were prohibit by a statute that no gyfte shulde be made to foreyns / that yet a gifte made to the churche shulde be good / for they say that the inferiour may nat take away the aucthoritie of the superioure & this sayeng is directly agaynst the statutes wherby it is prohibit that landes shulde nat be gyuē in to mortmayne / & they say also y ^t byquestes & gyftes to the churche muste be determined after the lawe canon & nat after the lawes & statutes of lay mē / & so they regarde moche to whome the gifte is made whether to the churche or to make causes / or to comō persones / & bere more fauoure in gif­tes to the churche than to other / & the law of the realme beholdeth the thyng that is gyuen & pretendeth that if the thynge that is gyuen be of landes or goodes that the determinacion therof of right belōgeth in this realme to y ^e kynges lawes whether it be to spirituall mā or tēporal / to y ^e churche [Page 82] or to other / & so is greate diuisiō in thꝭ behalfe whan one preferreth his opiniō & another his / & one this iurisdiccion / & ano­ther that & that as it is to fere more of sin­gularitie thā of charite wherfore it semeth that they y ^t haue the greatest charge ouer the people / specially to the helthe of theyr soules / are moste bounde in conscience be­fore other to loke to this matter & to do y ^t in them is in all charitie to haue it refor­med / nat beholdynge the tēporall iurisdic­cion nor spirituall iurisdiccion but the co­mon welthe & quietenes of the people / and that vndoutedly wolde shortlye folowe if this diuisiō were put away / whiche I suppose veryly wyll nat be but that all men within the realme bothe spirituall & tēpo­rall be ordered & ruled by one lawe as to tē porall thynges nat wihstandynge for as moche as the purpose of this writtyng is nat to treate of this matter therfore I wil no ferther speke thereof at this tyme.

Than I praye the procede to another question as thou sayst thy mynde is to do.

I wyll with good wyll.

☞ If a man be excōmenged / whether he may in any case be assoyled with­out makynge satisfacciō. The .xxxii. Chapitre.

In the summe called Sūma rosella in the title absolucio quarta y ^e seconde article: it is sayd that he that is excōmunicate for a wronge if he be able to make satisfaccion ought nat to be assoyled but he do satisfy / & that they offende y ^t do assoyle hym / but yet neuertheles he is assoyled / and if he be nat able to make amendes that he muste yet be assoyled / takynge a sufficiente gage to satysfie yf he be able here after / or elles that he make an othe to satisfie if he be able.

And these sayenges in many thynges hol­de nat in the lawes of Englande.

I pray the shewe me wherī the law of the realme varieth therfro.

If a man be excommunicate in the spiri­tuall courte for det / trespas / or suche other thynges as belong to the kynges crowne & to his royall dignite there he oughte to be assoyled without makynge any satisfaccion / for the spirituall courte exceded theyr [Page 83] power in that they helde ple in those cases & the party if he wyll may therupon haue a Premunire facias as well agaynste the partye that sued hym as agaynst the iuge & therfore in this case they oughte in con­science to make absolucion withoute any satisfaccion / for they nat onely offēded the party in callynge hym to answere before thē of suche thynges as belong to the law of the realme: but also the kynge / for he by reason of suche sutes maye lese greate ad­uauntages by the reason of the writtes originals / iudicials / fynes / amerciamentes / & suche other thynges as mighte growe to hym if suche sutes had bē takē in his courtes accordynge to his lawes / & accordyng to his saynge: it apperet in diuers statutes that if a man laye violent handes vpon a clerke & bete hym / that for y ^e betynge amē des shalbe made in the kynges court / & for the layeng of violent hādes vpō the clerke amendes shalbe made in the courte cristiē. And therfore if the iuge in the court cristiē wolde awarde the partie to yelde damages for the betynge: he dyd agaynste the statu­te / but admitte that a man be excommen­ged for a thynge that the spirituall courte may awarde the party to make satisfacciō [Page] of / as for the nat inclosinge of the churche yarde / or for nat apparellīge of y ^e churche conueniently. Than I thynke the partye muste make restitucion or lay a sufficiente causion if he be able or he be assoyled / but if the partye offre sufficient amēdes & haue his absolucion / & the iuge wyll nat make hym his letters of absolucion if the excommengemente be of recorde in the kynges courte thā the kynge may writte vnto the spirituall iuge cōmaundyng hym that he make the party his letters of absolucion vpon payn of a contempte / & if the sayd ex­communicaciō be nat of recorde in y ^e kyn­ges courte than the partye maye in suche case haue his accion agaynst the Iuge spirituall for that he wolde nat make hī his lettres of absolucion but if he be nat assoyled or if he be nat able to make satisfaccion & therfore the iuge spirituall wyll nat as­soyle hym / what the kynges lawes maye do ī tha case I am somwhat in doute / and wyll nat moche speke of it at this tyme / but as I suppose he may as well haue his accion in that case for the nat assoylynge hym as where he is assoyled & that y ^e Iu­ge will nat make hī his letters of absolu­cion / & I suppose the same law to be where [Page 84] a mā is accursed for a thyng that he iuge had no power to accurse hī in / as for dette / trespasse / or suche other.

There he may haue other remedies as a premu­nire facias or suche other / & therfore I suppose y ^e other acciō lieth nat for hī.

The iuge & the partie may be ded / & thā no premunire lieth / & though they we­re alyue & were cōdēpned in a Premunire / yet that shulde nat auoyd the e [...]cōmenge­ment / & therfore I thynke the accion lieth specially if he be therby delayed of accions that he might haue in the kynges court if the sayd excōmengement had nat ben.

☞Whether a Prelate may refuse a legaci. The .xxxiii. Chapitre.

It is moued in y ^e sayd summe named Rosella in the title alienacio. xx. the .xi. article whether a p̄late may refuse a legaci / where in diuers opynions be recited there / whiche as me thynketh haue nede after the lawes of the realme to be more playnly declared.

I praye the shewe me what the law of the realme will therin.

I thinke y ^t euery p̄late & suffereyn that may onely sue [Page] & be suyd in his owne name as Abbates▪ Priours: & suche other may refuse any le­gaci that is made to the house: for the legacie is nat perfyte tyl he to whome it is made assent to take it: for els if he mighte nat refuse it he might be compelled to haue lā des wherby he myghte in some case haue greate losse but than if he intende to refuse he muste as sone as his title by the legacy falleth relinquisshe to take the profites of the thyng bequethe / for if he ones take the profites therof he shall nat after refuse the legaci: but yet his successour may if he will refuse the takynge of the profites to saue the house fro yeldynge of damages or fro arrerages of rentes if any suche be: & lyke lawe is of a remayndre as is in legaci: for though in the case of a remaindre & also of a deuise as moste men say the freholde is caste vpon hym by the lawe whan the re­mayndre or deuise falleth: yet it is in his libertie to refuse the takynge of the profites & to refuse the remaīdre or deuise if he wyll as he myghte do of a gyfte of landes or goodes for if a gyfte be made to a man that refuseth to take it / the gyfte is voyde: & if it be made to a man that is ab­sent the gifte taketh nat effecte in hym tyll [Page 85] he assent: no more than if a mā dissease one to another mānes vse / he to whose vse the disseason is made hath nothyng in that lā de ne is no disseasoure tyll he agre. And to suche disseasons & gyftes an Abbot or Priour may disagre as well as any other mā but after some men a Bisshope of a deuise or remayndre that is made to the Bisshop & to the deane & chapitre nor a deane and a chapitre of a deuise or remayndre made to thē ne yet the mayster of a colage of suche a deuise or remayndre made to hī & to his bretherne / maye nat disagre withoute the chapitre or bretherne for the Bisshoppe of of suche landes as he hath with the deane & chapitre: ne the deane nor mayster: of su­che lande as they haue with the chapitre or bretherne may nat answere without y ^e chapitre & bretherne: & therfore some saye that if the deane or mayster wyll refuse or disclayme in the landes that they haue by the deuise or remaindre that that disclay­mour without the chapitre or bretherneis voyde. And therfore it is holdē in the law that if a Bisshope be vouched to warrātie & the tenaunt byndeth hī to the warrātye by reason of a lease made to hym by y ^e Bisshope & by the deane & the chapitre yelding [Page] a rente / that in that case the Bisshoppe may nat disclayme in that reuercion without the assent of the deane & chapitre. But yet if a reuercion were graūted to a deane & a chapitre & the deane refuse / the graunt is voyde / & so it appereth that a deane may refuse to take a gyfte or graunte of landes or goodes or of a reuercion made to hym & to the chapitre & that yet he maye nat dis­agre to a remaīdre or deuise / & the diuersite is because the remayndre & deuise be caste vpon hym without any assent / wherunto nether the deane nor the chapitre by them selfe maye in no wyse disagre without the assent of the other / but a gifte or graūt is nat good to them without they bothe assēt & in suche giftes as I suppose an Infaunt may disagre as well as one of full age / but if a woman couert disagre to a gifte & the husbande agre that gyfte is good.

what if the landes in that case of a man & his wyfe be charged with damages or be charged with more rent than the lande is worthe / & the husbande dye shall the wyfe be charged to the damages or to the rent.

I thynke nay if the wyfe refuse the occupacion of the grounde after her husbande deth / & I thynke the same [Page 86] lawe to be if a lease be made to the husbande & to the wyfe yelding a greater rent thā the lande is worth that the wyfe after the husbandes dethe maye refuse the lease to saue her fro the payment of the rente / & so may y ^e successour of an Abbot.

And if the husbande in that case ouerliue the wyfe & than make his executours and dye / whether may his executours in lyke­wyse refuse the lease.

If they haue goodes sufficient of theyr testatoure to pay the rente I thynke they may nat refuse it / but if they haue no goodes sufficient of theyr testatours to pay the rente to the ende of the terme / I thynke if they relin­quisshe the occupacion they may by special pleedynge discharge them selfe of the rent and the lease / and if they do nat they may lightly charge them selfe of theyr owne goodes. And if a lease be made for ter­me of lyfe the remayndre to an Abbot for terme of the lyfe of Iohan at style / re­seruynge a greater rente than the lande is worthe / and after the tenaunte for ter­me of lyfe dyeth the Abbot may refuse the remayndre for the cause before reherced / and in case that the Abbot assent to the re­maindre wherby he is charged to y ^e rēt durynge [Page] the tyme that is Abbot / & after he dyeth or is deposed liuynge the sayd Iohā at style / in that case his successoure maye discharge hym selfe by refusinge the occu­pacion of the lande as is aforesayd. But I thynke that if suche a remayndre were made to a deane / & to the chapitre / & the deane agre without the assent of the chapitre y ^t in that case the deane & the chapitre maye afterwarde disagre to the remayndre: and that the acte of the deane without y ^e assēt of the chapitre shall nat charge the chapi­tre ī y ^t behalfe / & thus it appereth though the meaninge of the sayde chapitre & arti­cle in the sayde summe be / that a prelate may nat disagre vnto a legacie for hurtīge of the house / yet he may after the lawes of the realme disagre thereto where it shulde hurte his house. And if in a Precipe quod reddat there be but one tenaunt be he spirituall or temporall / & he refuse by waye of disclaymoure in suche case where he maye disclayme by the lawe / there the lande shal veste in the demaundaunt / & if there be two tenauntes than it shall veste in his felowe / if he wyll take the hole tenaūcie vpon him or els it shall veste in the demaundaunte. But if an Abbot or a laye man refuse the [Page 87] takynge of the profites / & shewe a speciall cause why it shulde hurte hym if he dydde assente & be therby discharged as is sayde before / In whome the lande shall than ve­ste it is more doute whereof I wyll no fer­ther speke at this tyme. And thus it appe­reth by diuerse of the cases that be put in this chapitre that he that is ignoraunt in the lawe of the realme / shall lacke the true iugement of conscience in many cases / For in many of these cases that that maye be done therein by the lawe muste also be ob­serued in conscience. &c̄.

☞ Whether a gyfte made vnder a condi­cion be voyde if the souerayne onely breke the condicion ⸫ The .xxxiiii. Chapitre.

In Sūma rosella in the title alienacio / the .xii. article is asked this question whether a gyfte made vnder a certayne forme may be auoyded or reuo­ked because the prelate or souereyne onely dyd breke the forme / & it is there answered that it may nat for that the dede of the prelate onely ought nat to hurte the churche / & if those wordes vnder a maner be vnder­stande [Page] of a gyfte vpon condicion as they seme to be / than the sayd solucion holdeth nat in this realme nether in lawe nor con­sciēce.

What is than the law of Englande if a man enfeffe an Abbot by dede intented vpon condicion that if the Abbot paye nat to the feffoure a certayne some of money at suche a daye / that than it shalbe lawfull to the feoffour to reentre / & at y ^t day y ^e Abbot fayleth of his paymēt may the feoffer lawfully reentre & put out the Abbot.

ye veryly for he had no right to the lande but by the gyfte of the feffour & his gyfte was condicionell & therfore if the condicion be broken it is lawfull by the lawe of Englāde for the feffoure to reentre & to take his lande agayn & to holde it as in his fyrst estate by which reentre after the lawes of the realme he disproueth the fyrste lyuerey of season & al the meane actes done betwene the fyrst feffement & the reētre / & it forceth litle in the lawe in whome the defaute be that the cō ­dicion was nat performed whether in the Abbot or in his couēt or ī bothe / or in any other persone what so euer he be: excepte it be in the feffoure hīselfe. And it is great diuersitie betwene a clere gyfte made to an [Page 88] Abbot without cōdiciō / & where it is made with cōdictō / for whan it is made without cōdiciō the acte of the Abbot onely shal nat by the comō lawe disherite the house but it be in very fewe cases / but yet vpon diuers statutes the sufferaūce of the Abbot onely maye disherite the house as by his cesser / or by leuieng of a crosse vpō a house agaīst the statute therof made / in whiche case the house therby shall lese the lāde / & some say that by the comon lawe vpon his disclay­mour in auourie a writ of righte of discla­mour lieth / but if the gyfte be vpon condi­cion it standeth nether with law nor cōsciē ce that the Abbot shulde haue any more perfite or sure estate than was gyuen vnto hī / & therfore as the sayd estate was made to the house vpō cōdiciō so that estate may he auoyded for nat performyng of the cōdicion / & I thynke verily y ^t this that I haue sayd is to beholdē in this realme bothe in lawe & conscience / & that the decrees of the churche to the contrari bynde nat in thys case. But if lādes be gyuen to an Abbot & to his couēt to the intēt to fynde a lāpe / or to gyue certayne almes to poore mē / though the intēt be nat in those cases fulfilled / yet y ^e feoffer nor hꝭ heyres may nat reētre [Page] for he reserued no reentre by expresse wor­des / ne in the wordes whā he sayth the entente to fynde a lampe or to gyue almes. &c̄. Is implyed no reentre / ne the feoffoure nor his heyres shall haue no remedye in suche cases / onelesse it be within the case of the statute of Westmynster the secōde that gyueth the Cessau [...]t de cantaria.

☞ Whether a couenaūt made vpō a gyfte to the churche that it shall nat be aliened (be good.) The .xxxv. Chapitre.

In the sayde summe called Summa rosella in the sayde title alienacio / the .xiii. article is asked thꝭ question / whether a couenaunt made vpon a gyft to the churche that it shall nat be aliened be good. And the same question is moued agayne in the sayd summe called rosella / in the title condicio the fyrst article & in Summa angelica / in the title Donatio prima / the .li. & .lii. articles / & the intēte of the question there is: whether nat withstan­dynge that the condicion be good to some alienacions whether that yet it be good to restrayne alienacions for the redemption [Page 89] of them that be in captiuite vnder the infi­deles or for the greater aduauntage to the house / & though the better opiniō be there that the condicion may nat be broken for redempcion of them that be in captiuite: yet it is in maner a hole opiniō that it may be solde for the greater aduauntage to the house / for it is sayd there that it maye nat be taken but that the intente of the gyuer was so / & therfore they calle the condicion that prohibiteth it to be solde (condicio turpis) that is to saye / a vyle condicion / wherfore they regarde it nat: but verilie as I take it if a condicion may restrayne any ma­ner of alienacion than it shall as well re­strayne alienacions for the two causes be­fore reherced as for any other causes / and thoughe me thynketh that that condicion is good after the lawes of the realme that vpon giftes to the church restrayneth alienacions: yet I shal touche one reason that is made to the cōtrary / that is this. There is a clere grounde in the lawe that if a feoffement be made to a comon person in fee vpon condicion that the feoffe shal nat aliē to no man: that that condicion is voyde because it is contrary to the estate of a fee simple to bynde hym that hath that estate [Page] that he shulde nat aliene if he liste / & some say that an Abbot that hath lande to hym & to his successours hath as hygh & as perfite a fee simple as hath a laye mā y ^t hath lande to hym & to his heyres / and therfore they say that it is as well agaynst the law of the realme to prohibit that the Abbot shall nat alien as it is to prohibit a lay mā therof / & though it be therein true as they say as to the hyghnes of the estate: yet me thynketh there is great diuersite betwene the cases concernyng theyr alienaciōs / for whan landes be gyuen in fee simple to a comon person: the intēt of the lawe is that the feoffe shall haue power to aliene / & if he do aliene it is nat agaynst the intēt of the lawe ne yet agaynst the intēt of the feoffer / but whan landes be gyuen to an Abbot & to his successours the intent of the lawe is & also of the gyuer as it is to presume that it shulde remayne in the house for euer / & therfore it is called mortmayne / that is to saye a ded hāde as who saythe that it shall abyde there alway as a thynge ded to the house. And therfore as I suppose the lawe will suffre y ^t cōdiciō to be good y ^t is made to restrayne that suche mortmayne shulde nat be aliened & that yet it may ꝓhibit the [Page 90] same cōdicion to be made vpon a feoffemēt made in fee simple to a mā & to his heyres for that is the moste hyghe / the moste free & the moste purest state that is in the law. But the lawe suffreth suche a condiciō he made vpon a gyfte in tayse because the statute prohibiteth that no altenacion shulde be made therof. And than as the law suffereth suche a condicion vpō a gyfte in mort mayne / that is to saye / that it shall nat be aliened / to be good / than it iugeth the condiciō also accordyng to the wordes / that is to say / if the cōdicion be generall that they shall aliene to no man as this case is that it shalbe taken generaly accordynge to the wordes / & it shall nat be takē y ^t the intēt of the gyuer was otherwyse thā he expressed in his gift though percase if he were alyue hym selfe & y ^e questiō where asked hī whether he wold be cōtēted it shuld be alieued for y ^e sayd two causes or nat / he wolde say ye / but whā he is ded no mā hath authori­tie to īterpretate his gyft otherwise thā y ^e law suffereth / ne otherwyse thā y ^e wordes of y ^e gift be. And if y ^e cōdiciō be special y ^t is to say / that the lāde shall nat be aliened to suche a mā or such a mā / thā the cōdiciō shalbe takē accordyng to the wordes / & thā [Page] they may be aliened as for that condiciō to any other but to them to whome it is ex­presselie prohibite that the lande shuld nat be aliened to. And if the lādes in that case be aliened to one that is nat excepte in the condicion / than he may aliene the lande to hym that is fyrste excepted withoute bre­kynge of the condicion / for condicions be taken straytely in the lawe & without equitie. And thus me thynketh that because y ^e sayde condicion is generall & restreyneth all alienacions / that it may nat be aliened nether by the lawe of the realme ne yet by consciēce / no more for the sayd two causes than it may for any other cause / & this case muste of necessitie be iuged after the rules & groundes of the law of the realme & after no other lawe as me semeth.

☞If the patrone present nat within .vi. monethes who shall presente. The .xxxvi. Chapitre.

In the sayde summe called Summa rosella in the title Beneficio in principio it is asked / if the patrone present nat within .vi. monethes who shal present & within what tyme the presente­ment [Page 91] muste be made. And it is answered there that if the patrō present nat within vi. monethes that the chapitre shall haue. vi. monethes to p̄sent / & if the chapitre present nat within .vi. monethes that thā y ^e Bisshope shall haue other .vi. monethes. And if he be necligent / than the Metropolitane shall haue other .vi. monethes / & if he present nat than the presentement is deuolute to the Patriarke. And if the metropolitane haue no superiour vnder the Po­pe / than the presentemēt is deuolute to the Pope. And so as it is sayde there the archebisshope shall supplye the necligence of the Bisshope if he be nat exempte / & if he be ex­empte the presentement immediatly shall fall fro the Bisshope to the Pope. An as I suppose these diuersities holde nat in the lawes of the realme.

Thā I pray the shewe me who shall present by y ^e lawes of the realme if the patron do nat present within his .vi. monethes.

Than for defaute of the patrone the Bisshope shall present / oneles the kyng be patrone / & if the Bisshop present nat withī vi. monethes / than the metropolitane shal present whether the Bisshope be exempte or nat. And if the metropolitane presente [Page] nat within the tyme limitted by the lawe / than there be diuers oppinions who shall present / for some say y ^t the Pope shall present / as it is sayd before / & some say y ^e kīge shall present.

what reasō make they that say the kyng shulde present in that case.

This is theyr reason they saye that the kynge is patrone pera­mounte of all the benifices within the real me. And they say further that the kynge & his progenitours kīges of Englāde with­out tyme of mynde haue had authoritie to determine the right of patronages in this realme in theyr owne courtes / & are bounden to se theyr subiectes haue right in that behalfe withī the realme / & that in that case fro hym lieth no appele. And than they say that if the Pope in this case shulde present that than the kynge shulde nat onely lese his patronage peramounte / but also that he shulde nat somtyme be able to do right to his subiectes.

In what case were that.

It is in this case / the lawe of the realme is / that if a benefice falle voyde / that y ^e patrone shal present within .vi. monethes: & if he do nat that thā the ordinarie shal ꝑsent but yet y ^e law is ferther ī y ^t case that if the patrō presente [Page 92] before the ordinari put in his clerke: that thā the patrō of right shal inioye his presentement / & so it is / thoughe the tyme shulde fall after to the metropolitane or to the Pope / & if the presentement shulde fall to the Pope / than thoughe the aduouson abode styll voyde / so that y ^e patrone might of right present / yet the patrone shulde nat knowe to whome he shulde present / oneles he shuld go to the Pope / & so he shuld fayle of right within the realme. And if percase he wente to the Pope & presented an able clerke vnto hym / & yet his clerke were refused & another put in at the collaciō of the Pope or at the presentement of a straūger yet the patrone coulde haue no remedie for that wrōge within the realme / for the en­cumbente myghte abyde stille out of the realme. And therfore the lawe wyll suffre no title in this case to fall to the Pope.

And they say that for alyke reasō it is that the law of the realme will nat alowe an excōmengemēt that is certified in to the kynges court vnder y ^e popes bulles. For if the partie offered sufficiēt amēdes / & yet coulde nat obteyne his letters of absolucion / the kynge shulde nat knowe to whome to writ for the letters of absoluciō / and so the par­tie [Page] coulde nat haue righte / & that the lawe wyll in no wyse suffre.

The patrone in that case may present to the ordinarie as longe as the churche is voyde / & if the ordinarie accepte hym nat / the pa­trone may haue his remedie agaynst hym within the realme. But if the Pope wyll put in an encumbēt before the patrone present / it is reason that he haue the prefermē te as me semeth before the kynge.

Whan the ordinarie hath surcessed his tyme he hath loste his power as to y ^t presentement / specially if the collacion be deuolute to the pope. And also whan the presentement is in the Metropolitane he shall put in the clerke hym selfe & nat the ordinarie / & so there is no defaute in the ordinarie though he present nat the clerke of the patrone if his tyme be past / & so there lieth no remedie agaynst hym for the pa­trone.

Though the encumbēt abyde styll out of the realme yet maye a Quare impedit lye agaynste hym within the realme / & if the encūbent make defaute vpon the distresse & appere nat to shew his title: than the patron shall haue a writt to the Bisshope accordyng to the statute / & so he is nat without remedy.

But [Page 93] in this case he can nat be sommoned / attached / nor distrayned / within the realme.

He maye be somoned by the churche as the tenaunt may in a writte of right of auouson.

There the auouson is in demaunde / & here the presentement is onely in debate / & so he can nat be somoned by the churche here no more than if it were in a writte of annuitie / and there the comon returne is (quod clericus est & beneficiatus non habens laicum feo­dum vbi potest summoniri). And thoughe he might be somoned in the church / yet he might nether be attached nor distrayned there / & so the patrone shulde be withoute remedie.

And if he were with out remedie / he shulde yet be in as good case as he shulde be if the kyng shulde presēt / for if the title shulde be gyuen to the kynge the patrone had lost his presentement cle­rely for y ^t tyme though the churche abyde styll voyd. For I haue herde saye that in in suche presentementes no tyme after the lawe of the realme renneth vnto the kyng

That is true / but there the presentement shulde be takē fro hym by right & by the lawe & here it shulde be taken fro hym agaynst the lawe / & there as the lawe [Page] coulde nat helpe hym & that the lawe wyll nat suffre.

yet me thynketh alway y ^t the title of the laps ī such case is gyuen by the lawe of the churche & nat by the tēporall lawe / & therfore it forseth but littell / what the temporall lawe wyll in it as me semeth.

In suche countreys where the Pope hath power to determine the righte of temporall thynges I thynke it is as thou sayest / but in this realme it is nat so. And the righte of presente­ment is a temporall thynge & a temporall enheritaunce / & therfore I thynke it belongeth to the kynges lawe to determine / & also to make lawes who shall present after the .vi. monethes / as wel as before / so that the title of examinacion of abilitie or none abilitie be nat therby taken fro the ordinaries / & in lykewise it is of auoydaūce of be­nefices / that is to say / that it shalbe iuged by the kynges lawes whan a benefice shal be sayd voyde & whā nat / & nat by the law of the churche as whan a person is made a Bisshope or accepteth another benefice without licēce / or resigneth / or is depriued in these cases the comō law sayth that the benefices be voyde & so they shulde be tho­ugh a law were made by the churche to the [Page 94] cōtrary / & so if the Pope shulde haue any title in this case to present / it shulde be by the lawe of the realme. And I haue nat sene ne herde that the lawe of the realme hath gyuē any title to y ^e Pope to determine any tēporall thyng that may be lawfully determined by the kynges court.

It semeth by that reason that thou haste made nowe that thou preferrest the kynges authoritie in presentemētes before the Popes / & that me thynketh shulde nat stande with the lawe of god: syth the Pope is the vicar generall vnder god.

That I haue sayd proueth nat that / for y ^e hyghest prefermēt in presentemētes is to haue authoritie to examine the abylitie of the person that is p̄sented / for if the present be able / it suffiseth to the discharge of the ordinarie / by whome so euer he be p̄sented & that authoritie is nat denied by the law of the realme to belōge alwaye to y ^e spiri­tuall iurisdicciō / but my meanyng is that as to the right of presentementes & to de­termine who ought to present & who nat & at what tyme / & whā the churche shalbe iuged to be voyde & whā nat / belōgeth to the kyng & his lawes / for elles it were a thing in vayne for him to holde ple of aduousons [Page] or to determine the righte of patronage in his owne courtes & nat to haue aucthorite to determyne the right therof / & these claymes semeth nat to be agaynste the lawe of god. And so me semeth in this case the presentement is gyuen the kynge.

And if the kynge shulde haue right to pre­sent than might the churche happen to cō tinue voyde for euer for as we haue sayde before no tyme renneth to the kyng in su­che presentementes.

If any suche case happen if the kynge present nat than may the ordinary set in a deputie to serue the cure as he may do whā necligēce is in other patrons that may present & do nat / & also it can nat be thoughte that the kyng whiche hath the rule & gouernaūce ouer the people nat onely of theyr bodyes but also of theyr soules wyll hurte his conscience & suffre a benefice continually to stande withoute a curate no more than he doth in auousons that be of his owne pre­sentemente.

☞Whether the presentement & collaciō of all benefices & dignities voydynge at Rome belonge onely to the Pope The .xxxvii. Chapitre.

In the sayde summe called Summa rosella in the title Beneficiū primum / ī the .xiii. article. It is sayde that benefices / dignities / & ꝑsonages / voy­dynge in the courte of Rome maye nat be gyuen but by the Pope & likewyse of the Popes seruauntes & of other that come & go fro the courte if they dye in places nye to the court within two dayes iourney all these belonge to the Pope / but if the Pope presente nat within a moneth: than after the moneth they to whome it belōgeth to present may present by them selfe onely or by theyr vicar generall if they be in farre parties & these saynges holde nat in the lawes of the realme.

what is the cause that they holde nat ī this realme as well as in all other realmes.

One cause is this. The kyng ī this realme accordyng to the aūciēt right of his crowne / of all his aduousons that be of his pa­tronage oweth to present. And in likewise other patrons of benefices of theyr presentement / & the plee of the right of presente­mentes of benefices within this realme belonge to the kyng & his crowne. And these titles can nat be taken fro the kynge & his subiectes but by theyr assent / & so the lawe [Page] that is made therin to put away that title byndeth nat in this realme / & ouer that before the statute of .xxv. of Edwarde the .iii there was a great inconueniēce & mischief by reason of diuers prouisiōs & reseruaciōs that the Pope made to benefices in thys realme cōtrari to the olde right of y ^e kyng & other patrons in this realme as well to archebisshopryches / Bisshopryches / deau­ries / & Abbes: as to other dignities & benefices of the church. And many tymes aliēs therby had benefices within the realme y ^t vnderstode nat the englisshe tonge / so that they coulde nat counsayle ne conforte the people whan nede requyred / & by that occasion great ryches was cōuayed out of the realme / wherfore to auoyde suche inconueniences: it was ordeyned by the sayd statute that all patrōs as well spirituall as tē ­porall shulde haue theyr presentemētes frely / & in case y ^t collaciō or prouisiō were made by the Pope in disturbaūce of any spirituall patrō: that thā for that tyme the kīg shulde haue the p̄sentemēt / & if it were ī di­sturbaūce of any lay patrō: that thā if the patrō p̄sented nat withī the halfe yere af­ter suche voydāce: nor the Bisshope of the place withī a moneth after the halfe yere: [Page 96] that thā the kyng shulde haue also the p̄sentement / & y ^t the kyng shulde haue the profites of the benefices so occupied by prouisiō except abbes & priours & other houses that haue colage & couēt / & there the colage & couēt to haue the profites / & bycause the sta­tute is generall & excepteth nat suche benefices as shall voyde in the courte of Rome or in suche other place as before appereth / therfore they be takē to be withī the prouisiō of the sayd estatute as well as the benefices that voyde withī the realme / & all prouisours & executours of the sayd collaciōs & prouisiōs & al theyr atturneys / notaries / & mainteners shalbe out of the protecciō of the kyng / & shall haue like punisshemēt as they shulde haue for executing of benefices voyding withī the realme.

But I cā nat se howe the sayd statute may stāde with cōsciēce that so farre restrayneth the Pope of his libertie / whiche as me semeth he ought ī this case right to haue.

Because as I suppose y ^e patrōs ought of right to haue theyr p̄sentemētes vnder suche maner as they clayme thē in thꝭ realme as I haue sayd before / & as in the .xxvi chapi. of this boke appereth more at large & also for as moche as it apereth euidētly [Page] that greate inconuenient folowed vpō the sayd prouisions / & that the sayde estatute was made to auoyde the same / which syth that tyme hath ben suffred by the Pope & hath ben alway vsed in this realme with­oute resistaunce that the sayde estatute shulde therfore stāde with good consciēce.

☞ If a house by chaunce falle vpon a horse that is borowed who shall bere the losse ⸫ The .xxxviii. Chapitre.

In the sayde summe called Summa rosella / in the title casus for tuitus / ī the begīnyng is put this case if a man lende to another a horse whiche is called there depositū & a house by chaūce falleth vpō the horse whether in that case he shal answere for the horse. And it is an­swered there that if the house were lyke to falle that than it can nat be taken as a chaunce but as the defaut of hym that had the horse deliuered to hī. But if the house were stronge & of likeliholde & by comō presumpcion in no daūger of fallyng but that it fell by sodayne tempeste or suche other casueltie that than it shalbe taken as a [Page 97] chaunce / & he that had the kepynge of the horse shalbe discharged / & thoughe his di­uersite agreeth with the lawes of the realme yet for the more playner declaracion therof and for other lyke cases & chaunces that may happē to goodes that a mā hath in his keping that be nat his owne. I shal adde a littell more therto that shalbe som­what necessarie as me thynketh to the orderinge of consciēce. Fyrst a mā may haue of another by way of lone or borowynge / money / corne / wyne / & suche other thinges where the same thynge can nat be deliue­red if it be occupied but another thynge of lyke nature & lyke value muste be redeliuered for it / & suche thynges he that they be l [...]e to may by force of that lene vse as his owne. And therfore if they perysshe it is at his ieoperdye & this is mooste properly called a loone. Also a mā may lēde to ano­ther a horse / an oxe / a carte / or suche other thynges that maye be deliuered agayne / & they by force of that leue may be vsed & occupied reasonablie ī such maner as they were borowed for / or as it was agreed at the tyme of the loone that they shulde be occupied / & if suche thynges be occupied / otherwyse thā accordyng to the intente of [Page] the lone / & in that occupaciō they perysshe in what wyse so euer they perysshe / so it be nat in defaute of the owner / he that boro­wed them shalbe charged therwith in law & conscience / & if he that borowed them oc­cupie them in suche maner as they were lent for / & in that occupacion they perysshe in defaute of hym that they were lente to: thā he shall answere for them. And if they perysshe nat through his defaute: than he that oweth them shall bere the losse. Also if a man haue goodes to kepe to a certayne day for a certayne recompence for the ke­pynge he shall stande charged or nat char­ged after as defaute or no defaute shalbe in hym / as before appereth / & so it is if he ha­ue nothyng for the kepynge / but if he haue for the kepynge & make promyse at the tyme of the deliuerye to redeliuer them saufe at his peryll: than he shalbe charged with all chaunces that may fall. But if he make that promyse & haue nothynge for kepyng I thynke he is bounde to no suche casuel­ties / but that be wilfull and his owne de­faute / for y ^t is a nude or a naked promyse wherupon as I suppose no accion lyeth. Also if a man fynde goodes of another if they be after hurte or loste by wilfull necligence [Page 98] he shalbe charged to the owner / but if they be lost by other casuelte as if they be layde in a house that by chaunce is bur­ned / or if he deliuer thē to another to kepe that renueth away with thē: I thynke he be discharged / & these diuersites hold most comonly vpō pledges / or where a mā hu­rith goodes of his neyghbour to a certayn day for certayne money / & many other di­uersities be in the law of the realme what shalbe to the ieopardy of the one & what of the other whiche I will nat speke of at thꝭ tyme. And by this it may appere that as it is comonly holden in the lawes of Englā ­de if a comon caryer go by by wayes that be daungerous for robbynge / or driue by nyghte or in other vnconueniente tyme and be robbed / or if he ouer charge a horse whereby he falleth into the water or o­therwyse / so that the stuffe is hurte or empeyred / that he shall stande charged for his misdemeanoure / & if he wolde percase refuse to carye it / onelesse promyse were made vnto hym y ^t he shall nat be charged for no misdemeanour that shulde be in him that promise were voyde. For it were a­gaynste reason and agaynst good maners and so it is in all other causes lyke.

[Page]And all these diuersities be groūded by se­condarie conclusions diriuied vpō the law of reasō without any estatute made ī that behalfe. And peraduenture the lawes & the conclusiōs therin be the more playne & the more opē. For if any statute were made theron: I thynke verely mo doutes & que­stiōs wolde rise vpō that statute thā dothe now whā they be onely argued and iuged after the comon lawe.

☞If a preste haue wōne moche by saiēg of masse / whether he may gyue those goodes or make a wyll of them. The .xxxix. Chapitre.

In the sayd summe called Sū ma rosella in the title clericus quartꝰ the thyrde article / is asked this que­stion if a preste hath wōne moche goodes by sayenge of masse whether he may gyue those goodes or make a wyll of thē / whe­reto it is answered there that he may giue them or make a wyll of thē specially whā a man bequeteth money for to haue mas­ses sayd for hym / & that lyke law is of su­che thynges as a clerke wynneth by the [Page 99] reason of an office. For it is sayde there y ^t suche thynges come to hym by reason of his owne persone / whiche saīges I thinke accorde with the lawe of the realme. But for as moche as in the sayd article & in di­uers other places of the sayd chapitre / & in diuers other chapitres of the sayd summe is put great diuersitie betwene suche goo­des as a clerke hathe by reason of his churche and suche goodes as he hath by reason of his person: and that he muste dispose suche goodes as he hath by reason of his churche in suche maner as is appoī ted by the lawe of the churche / so that he maye nat dispose them so liberally as he may the goodes that come by reasō of his owne persone / therfore I shall a litle tou­che what spirituall mē may do with theyr goodes after the lawe of the realme. Fyrst a Bisshop of suche goodes as he hath with the deane & the chapitre he may nether make gyfte nor byquest / but of suche goodes as he hath of his owne by reason of his churche or of the gifte of his auncestres or of any other / or of his patrimony he maye bothe make giftes & byquestes lawfullye. And an Abbot of the goodes of his church may make a gyfte & the gyft is good as to [Page] the lawe. But what it is in consciēce that is after the cause & intente & qualitie of y ^e gyfte / for if it be so moche that it notablie hurteth the house or the couent / or if he gyue away the bokes or the chalyces / or su­che other thynges as belonge to the seruice of god / he offendeth in conscience / & yet he is nat punisshable in the lawe / ne yet by a sub pena after some mē ne in none other wyse but by the lawe of the churche as a waster of the goodes of his monastery.

But neuertheles I will nat fully holde y ^t opinion as to that that belongeth necessaryly to the seruice of god / whether any re­medye lye agaynst hym or nat / but remyt it to the iugement of other. And a deane & a chapitre & a mayster & bretherne of goodes that they haue to them selfe. And also of goodes that they haue with the chapi­tre & bretherne the same diuersite holdeth as appereth before of a Bisshope & the deane & chapitre / excepte that in the case of a mayster & bretherne the goodes shalbe or­dered as shalbe assigned by the fundacion. And moreouer of a parson of a churche vi­car / & chaunterie preest / or suche other / all suche goodes as they haue / as well suche as they haue by reson of the personage / vicarage [Page 50] / or chaūtery / as that they haue by reason of theyr owne persone they maye lawfully gyue & bequethe where they will after the comō lawe. And if they dispose parte amonge theyr parysshens & parte to the byldinge of churches / or gyue parte to the ordinarie / or to poore men / or in suche other maner as is apoynted by the law of the churche they offende nat therein / one­les they thynke them selfe bounden therto by duetie & by authorite of the lawe of the churche / nat regardynge the kīges lawes / for if they do so it semeth they resiste the ordenaunce of god / whiche hath gyuen po­wer to princes to make lawes. But there as the Pope hath soueraintie in temporal thynges as he hath in spirituall thynges / there some saye that the goodes of prestes muste in conscience be disposed as is con­teyned in the sayd summe / but that holdeth nat ī thꝭ realme / for y ^e goodes of spūal mē be tēporal ī what maner so euer y ^e come to thē / & muste be ordered after the temporal law as the goodes of y ^e tēporall mē muste be. How be it if there were a statute made ī this case of lyke effecte in many poītes / as the law of y ^e churche is. I thynke it were a right good & a profitable statute.

☞Who shall succede a clerke that dyeth intestate. ❧ The .xl. Chapitre.

In the sayd summe called rosella in the chapitre Clericus quartus the .vii. article / is asked this question / who shall succede to a clerke that dyeth in­testate. And it is answered that in goodes gottē by reason of the churche the churche shall succede. But in other goodes his kinnesmen shall succede after the order of the law / & if there be nat kinnesmen than the churche shall succede. And it is there sayd forther that goodes gotten by a canon se­culer by reason of his churche or prebende shall nat go to his successour in the prebende / but to y ^e chapitre. But where one that is beneficed is nat of the congregaciō / but he hath a benefice clerely seperate / as if he be a parsone of a parysshe churche or is a president or an archedeacon nat beneficed by the chapitre / than the goodes gottē by reason of his benefice / shall go to his successoure & nat to the chapitre / & none of these sayenges holde place in the lawes of En­glande.

what is thā the law if a pārsone of a churche or a vycar in the [Page 51] countrey dye intestate / or if a chanon secu­ler be also a parson & haue godes by reason therof & also by a prebende that he hath in a cathedrall church & he dye intestate / who shall haue his goodes.

At the comon law the ordinarie in all these cases may administre the goodes & after he must commit administracion to the next faythe full frendes of hym that is ded intestate y ^t wyll desyre it as he is bounde to do where lay men that haue goodes dye intestate.

And if no mā desyre to haue administra­cion than the ordinarie may administre & sethe dettes payde & he muste beware that he paye the dettes after suche order as is appoynted in the comon law / for if he pay dettes vpon simple cōtractes before an obligacion he shalbe cōpelled to pay the dette vpon the obligacion of his owne goodes if there be nat goodes sufficiēt of hym that dyed intestate / & though it be suffered in suche case that the ordinarie maye pay poūde & pounde like that is to apporcion the goodes amonge the dettours after his discre­cion / yet by the rigoure of the comon lawe he might be charged to hym that cā fyrste haue his iugement agaynst hym. And ferthermore by that is sayde afore in y ^e laste [Page] chapitre appereth if a Bisshope that hath goodes of his patrimony / or a mayster of a colage / or a deane of goodes that they haue of theyr owne onely to them selfe dye intestate / that the ordinarie shall commit administracion therof as before appereth & if they make executours than the execu­tours shall haue the ministracion thereof. But the heyres nor the kynnesmē by that reason onely y ^t they be heyres or of kynne to hym that is decessed shall haue no med­lyng with his goodes except it be by custo­me of some contreys where the heyres shal haue heyre lomes. Or where the chyldren / the dettes & legacis payde / shall haue a reasonable parte of the goodes after the custome of the countrey.

¶Addition. ❧If a man be owtlawed of felony or be attaynted for murdre or felony: or that is an ascismus maye be slayne by euery straun­geour ⸫ The .xli. Chapitre.

It appereth in the sayde sū me called Summa angelica in the .xxi. chapitre. in the title of Ascismus the .2. Paragraf y ^t he is an ascismus that will slee men for money at the instaunce of euery man that will moue hym to it / & su­che man may lawfully be slayn nat onely by the Iuge but by euery priuate persone. But it is sayde there in the .4. Paragrafe. that he muste fyrst be iuged by the law as an ascismꝰ or he may be slayne or his goo­des seased. And it is sayde ferther there in the .2. Paragraf that also in conscience su­che an ascismus may be slayne if it be done through a zele of iustice and elles nat. Is nat the lawe of the realme lykewise of mē outlawed / abiured / or iuged for felony.

In the law of the realme the­re is no suche lawe that a man shalbe adiuged as an ascismus / ne if a man be in full purpose for a certayne sūme of money that he hath receyued to slee a man: yet it is no felony ne murdre in the law tyll he hath done y ^e acte for y ^e intēt in felony nor murdre is nat punisshable by y ^e comō law of y ^e re­alme though it be dedly syn afore god / but ī treasō or ī som other ꝑticuler cases by statute y ^e ītēt may be punisshed. And though [Page] a man in suche case kyll a man for money: yet he shall nat be attaynted that he is an ascismus. For as it is sayde before: there is no suche terme of ascismus in the law of the realme: but he shall in suche case be ar­rayned vpon the murdre. And if he confesse it or plede that he is nat gylty & is foūde gylty by .xii. men: he shall haue iugemente of lyfe & of membre / & shall forfeyte his landes & goodes. And lyke law is if in appele brought of the murdre: he stande dombe & wyll nat answere to the murdre: he shalbe attaynted of the murdre & shall forfeyt lyfe landes / & goodes / but if he arrayned of the murdre vpon an Inditemēt at the kynges sute: & there vpon standeth dombe & wyll nat answere: there he shal nat be attainted of y ^e murdre / but he shall haue payne forte & dure (that is to saye) he shalbe pressed to dothe & he shall there forfayte his goodes & nat his lādes. But in none of these cases (that is to saye) though a mā be outlawed for murdre or felony / or be abiured / or that he be otherwyse attaīted: yet it is nat law­full for no man to murdre hym or slee hym ne to put hym in execucion but by auctori­tie of the kynges lawes. In so moche that if a mā be adiuged to haue payne forte and [Page 53] dure / & the officer by hedeth hym / or on the contrary wyse putteth hym to payne forte & dure where he shulde byhede hym: he of­fendeth the lawe.

❧And if an officer whiche hath auctori­tie to put a man to dethe (maye nat put hī to deth but accordynge to the iugemente) than me thynket it shuld folowe that more stronger a straunger may nat put suche a man to dethe of his owne auctoritie with­out cōmaundement of the lawe.

❧But if the iugement be that he shalbe hanged in chaynes / & the officer hangeth hym in other thynges & nat in chaynes I suppose he is nat gylty of his dethe / but some say he shall there make a fyne to the kynge bycause he hathe nat folowed the wordes of the iugement.

❧Also if a man that is no officer wolde a rest a man that is outlawed / abiured / or attaynted of murdre or felony as is afore­sayd / & he disobeyeth the arrest / & by reason of that disobedience he is slayn: I suppo­se the other shall nat be empeched for hys dethe / for it is lawfull vnto euery man to take suche persones & to brynge thē forthe that they may be ordered accordyng to the lawe. But if a capias be directed vnto the [Page] Sheryfe to take a man in an accion of dette or trespas: there no man maye take that man but he haue auctoritie from the Sheryfe. And if any man attempte of hys owne auctorite to take hym & he resisteth / & in that resistinge is slayne: he that wolde haue taken hym is gylty of his dethe.

¶Addition. ❧Whether a man shalbe boūden by that acte or offence of his ser­uaunt or officer ⸫ The .xlii. Chapitre.

In the sayd sūme called Sū ma āgelica in the title dominꝰ .4. Paragrafe: Is asked this question / whe­ther a mā shalbe charged for his housholde And it is sayde there that he shall whā the housholde offendeth in an office or ministerie that the mayster is the chyefe officer of: & he hath the werke & the profite of y ^e housholde. For it shalbe his defaut y ^t he wolde chuse suche seruaunte / for he ought to ap­poynte honeste persones / but it is sayde there that that is to be vnderstande ciuilly [Page 54] & nat criminally / wherby as is sayde there he that is a gouernour is bounde for the offēce of his officers / & that the same is to be holdē of a Captayne / that he shalbe boūde for the offence of his squiers. And an hoste for his ghest & suche other. Neuerthelesse it is sayd there y ^t certayne doctours there reherced / & therto y ^t if the office be an open or a publyke office / as an office of power or other lyke: It sufficeth to brynge forthe hym that offended. But it is otherwyse. If it be nat a publike office: but an hoste or a tauerner or otherlyke. But if the housholde offended nat in the office: the lorde is nat bounde as to the law: but in consciē ce he is bounde if he were in defaut by nat correctinge them / for he is bounde to cor­recte them bothe by worde and example / and if he fynde any incorrigible he is boū ­de to put hym awaye excepte that he hath presumpcious that if he do so: he wyll be the worse / and than he maye do that he thynketh beste / and he is escused and el­les nat. For to suche persons it is sayde (Error qui nō resistitur: approbatur) that is to saye (An errour that is resisted: is approued. And thoughe diuers of the saynges before reherced agre with the lawe [Page] of the realme / yet all do nat so / & also tho that do: are to be obserued by auctoritie of the lawe of the realme & nat by the aucto­rite alledged in the sayd paragrafe. And therfore I entēde to treate sōwhat where the mayster shalbe charged by his seruāte or deputie / or by them that be vnder hym in any office / & where nat / & than I entēde to touche some other thynges where the mayster after the lawes of the realme shal be charged by the acte of his seruaunte in other cases nat concernynge offices & where nat.

❧Fyrst if a man be committed to warde vpon arrerages of accompte: & the keper of the prysō suffereth hym to go at large: thā an acciō of det shall lye agaynst hym. And if he be nat sufficient: than it lieth agaynst hym that committed the pryson vnto him & that is by reason of the statute of West in the .ii. the .xi. Chapitre.

❧Also if Baylyfes of frauncheses that haue returne of writtes make a false returne the partie shall haue auerment against it as well of to litle yssues as of other thyn­ges as well as he shall haue agaynste the Sheryfe / but all the punisshemente shalbe onely vpon the bayly & nat vpon the lorde [Page 100] of the fraunchese / & that dothe appere by the statute made in the fyrste yere of kynge Edwarde the .iii. the .v. chapitre. But if an vnder Sheryfe make a returne where vpō the sheryfe shalbe amercied there y ^e hyghe sheryfe shalbe amercied for the returne is made expressely in his name. But if it be a false returne where vpon an accion of dis­ceyt lieth: in that case it may be brought a­gaynst the vnder sheryfe / & se therof the statute that is called Statutū de male returnantibus breuia.

❧Also if the kynges butteler make deputies he shall auswere for his deputies as for hym selfe. As appereth in the statute made in the .xxv. yere of kynge Edwarde the thyrde. De prodicionibus the .xxi. Chapitre.

❧Also in the statute that is called statutum scaccaru it is enacted amonge other thynges that no officer of the eschequer shall put any clerke vnder hym but suche as he will answere for. And for as moche as the statute is general: it semeth that he shall answere as well for an vntrouthe in any suche clerke as for an ouer sighte.

❧Also in the .xiiii. yere of kynge Edwarde the thyrde the .ix. chapitre: it is enacted [Page] that all Gayles shalbe adioyned agayne to the shyres / & that the sheryfe shall haue the kepynge of thē / & that the sheryfe shall make suche vnder gardeyns for the which they wil answere. And neuerthelesse I suppose that if there be an escape by defaute of the Gayler: that the kynge may charge the Gayler if he w l. But it is no dout but he may charge the sheryte by reason of his statute it he will / But if it be a wilfull esca­pe in the Gayler whiche is felonye in him the sheryfe shall nat be boūde to answere to that felonye ne none other but the Gayler hym selfe and they that assented to hym.

❧Also if a man haue a shyrefwyke / con­stableship / or bayly wyke in see / wherby he hath the kepynge of prysoners / if he lette any to repleuyn that be nat repleuisshable & thereof be attaynt / he shall lefe the office. &c̄. And if it be an vndersheryfe / constable / or baylyfe that hath the kepyng of the pryson that doeth it without knowelege of the lorde: he shall haue enprysonement by. iii. yeres / & after shalbe raunsomed at the kynges will / as appereth in the statute of Westm̄. the fyrst the .xv. chapitre. And so it appereth that in this case he that is the [Page 101] lorde of the pryson is nat bounde to aun­swere for the offence of them that haue the rule of the prysō vndre hym: but that they shall haue the punisshment them selfe for theyr misdemeanoure.

♣Also there is a statute made ī the .xxvii. yere of kyng Edwarde the .iii. the .xix. chapitre is called the statute of the Staple whereby it is ordeyned that no marchaūt ne none other man shall nat lese theyr goodes for the trespas or forfayte of theyr ser­uantes / onelesse it be by commaundement of his mayster / or that the offende in the office that his mayster hath put hym in / or els that the mayster shalbe bounde to an­swere for the dede of his seruaunte by the lawe marchaunte / as in some place it is vsed.

❧Also it is enacted in the .xiiii. yere of kyng Edwarde the .iii. the .viii. chapitre that wapentakes and hundredes that be seuered frome the counties shalbe adioy­ned agayne vnto them / and that if the sheryfe holde thē in his owne handes: that he shal put in thē suche baylyfes that haue landes sufficiēt / & for the whiche he wyll answere / and that if he let them to ferme: [Page] that they be let to the auncient ferme / but after it is prohibited by the statute of the .xxiii. yere of kynge Henry the .vi. the .x. chapitre. That no sheryfe shall let his bay­lywykes nor wapentakes [...]o ferme. And so whan they be ones in the sheryfes owne handes & the sheryfe putteth in baylyfes: they be but as vnder baylyfes to the kyng & the sheryfe the hyghe baylyfe / & they in maner the sheryfes seruaūtes & put in one­ly by hym. And therfore by the sayd statu­te of kynge Edwarde the .iiii. He shall an­swere for them if they offende in theyr offi­ce / but if the sheryfe let them to ferme: thā though the sheryfe offende the stature in y ^t doynge / yet whether he shalbe charged for theyr misdemeanor in the office or nat: is a great doubte to some men / for they saye that this statute is onely to be vnderstāde where the baylywykes be in the sheryfes handes: but here they be nat so / ne the baylyfes be nat his seruātes but his fermours And therfore they saye that if the sheryfe shalbe charged for them: It is by the comō lawe & nat by the statute aforesayd.

❧Also in the .ii. yere of kyng Henry the .vi. the .xiiii. chapitre it is enacted that officers by patente in euery court of the kyng [Page 102] that by vertu of theyr office haue power to make clerkes ī y ^e sayd courtes shalbe charged & sworne to make suche clerkes vnder thē for whome they will answere.

❧Also the Hospitelers & Templers be prohibit that they shall holde no plee that bylōgeth to the kynges courtes vpō payn to yelde damages to the party greued & to make raunsome to the kynge / & that the superiours shall answere for theyr obediēces as for theyr owne dede. Westm̄ the .ii. the xliii. Chapitre.

❧Also the sergeaunt of the caterye shall satisfie all the dertes / damages / an execu­cions that shalbe recouered agaynste any that is purueyour or achatour vnder hym & that offende agaynst the statute of .xxxvi of Edwarde the thyrde / or agaynste thys statute of .xxiii. of Hēry the .vi. In case y ^t the purueyour or achatour be nat sufficiēt &c̄. And the party pleyntyfe shall haue a Scire facias agaynst the sayd sergeaunte in this case to haue execucion as appereth in the .xxiii. yere of kyng Henry the .vi. y ^e fyrste Chapitre.

❧Also if a man be sent to pryson vpon a statute marchaunt by the Mayre / before whome the recognisaunce was taken / and [Page] the Gayler wyll nat receyue hym: he shall answere for the det if he haue where with / & if nat: than he shall answere that com­mitted the Gayler to hym / as appereth in the statute called the statute marchaunte.

❧Also if outrageous tolle be taken in a towne marchāt / if it be the kynges towne let to seeme: the kynge shall take the fraunchese of the market into his handes. And if it be done by the lorde of the towne: the kynge shall do ī like wyse. And if it be done by the baylyfe vnknowynge the lorde: he shall yelde agayne as moche as he hath taken / & shall haue enprysonmēt of .xl. days. And so it appereth that y ^e lord in this case shall nat answere for his bayly. Westm̄ the fyrst the .xxx. chapitre. And in all the cases before reherced where y ^e superiour is charged by the defaut of hym that is vnder hī: he in whose defaut his superiour is so charged: is bounde in conscience to restore him that is so charged through his defaut. Excepte the case before reherced of the hospi­telers / for all that the obediencer hathe: is the superiours if he wyll take it. And ther­fore what recompence shalbe made by the obeciencer in that case: is all at the wyll of the superiour. And nowe I entende to [Page 103] shewe the some perticuler cases where the mayster after the lawes of the realme shal be charged by the acte of his seruaūt / bay­lyfe / or deputie / & where nat / & so for to ma­ke an ende of this chapitre.

❧Fyrst for trespas of batery or of wrōg full entre into lādes or tenementes: ne yet for felony or murdre the mayster shall nat be charged for his seruaūte / oneles he dyd it by his commaundement.

❧Also if a seruaunt borowe money ī his maysters name: the mayster shall nat be charged with it oneles it come to his vse & that by his assente / and the same lawe is if the seruaunte make a contracie in hys maysters name / the contracie shall nat binde his mayster oneles it were by his may­sters commaundement or that it came to the maisters vse by his assent. But if a mā sende his seruaunt to a fayre or market to bye for hym certayne thynges / though he cōmaunde hym nat to bye them of no mā in certayne: & the seruaūt do. he according the mayster shalbe charged / but if the ser­uaunt in that case bye thē in his owne na­me nat spekynge of his mayster: the maester shall nat be charged onelee [...] [Page] bought come to his vse.

❧Also if a man sende his seruant to the market with a thynge which he knoweth to be defectiue to be solde to a certayne mā & he selleth it to hym: there an accion lieth agaynst the mayster / but if y ^e mayster biddeth hym nat selle it to any persone in cer­tayne but generally to whome he cā. And he selleth it accordyng: there lieth no acciō of disceyt agaynste the mayster.

❧Also if the seruant kepe the maysters fyre necligētly / wherby his maysters hou­se is brent & his neyghbours also / there an accion lieth agaynst the mayster. But if the seruaunte bere fyre necligently in the strete & therby the house of a nother is brē ­ned / there lyeth no accion agaynste the mayster.

❧Also if a man desyre to logge with one that is no comon hostiler & one that is seruāte to hym that he lodgeth with: robbeth his chamber / his mayster shal nat be charged for that robbynge / but if he had ben a comon hostyler he shulde haue ben char­ged.

❧Also if a man be gardeyn of a pryson wherin is a man that is condempned in a certayne somme of money / & another that [Page 104] is in pryson for felonye & a seruaunt of the gardeyn that hathe the rule of the pryson vnder hym wylfully letteth them bothe escape in this case the gardeyn shal answere for the det & shall pay a fyne for the escape of the other as for a neclygent escape and the seruaunt onely shalbe put to answere to the felonye for the wylful escape ¶Also if a mā make a nother his generall recey­ueure / & that receyuoure receyuith money of a credytoure of his mayster & makyth hym an acquytaunce and after payeth nat his maister yet that payment dyschargeth the credytoure: but yf the credytoure had takē an acquytaunce of hym without payeng hym any money: that acquytaunce onely were no barre to the mayster / onles he made hym recyueour by wrytynge and gaue hym aucthoritie to make acquytaunces / and than that aucthorytye must be shewed. And yf y ^e creby four ī suche case by agrement bytwene the receyuoure & hym: deliuer to y ^e receyuour a horse or an other thynge ī recompence of the dete: that dely­uery dyschargeth nat the credytour onles yt be delyuered ouer vnto the mayster and he agre to it. For the receyuoure hath no suche power to make no suche cōmutacion [Page] but his mayster gyue hym speciall cōmaū dement therto.

❧Also if a seruaunte shewe a creditoure of his mayster that his mayster sence hym for his money / & he payeth it vnto hym / y ^t payment dischargeth hym nat if the may­ster dyd nat sende hym for it in dede / except that it come after vnto the vse of the may­ster by his assent.

❧Also if a man make a baylyfe of a ma­ner & after the lorde of whome the maner is holden graunted the seygnoury to ano­ther & the baylyfe after payeth the rente vnto the graunt: that payment of the rent countreuayleth no attournant thoughe it were by fyne / ne shall nat bynde his may­ster tyll he atturne him selfe / but if the lord of whome the lande is holden dye seased of the seynoury & the baylyfe payeth the rent to the heyre of the lorde: that is a good season to the heyre though the baylyfe had no commaundement of his mayster to pay it For it belongeth to his office to paye ren­tes seruice but nat rentte charge as some men saye.

❧Also an encrochemente by the baylyfe shall bynde the mayster in auowry if he [Page 105] had no commaundementte of the mayster to paye it.

❧Also if there be lorde Mesne & tenaunt & the renaunte holdeth of the Mesne as of his maner of D the Mesne maketh a baylyfe. And after the tenaunt maketh a feof­fement: the feoffe rendeth notice to the baylyfe & he accepteth his rente with the arrerages / this notice shall nat bynde the lorde ne compell hym to alter his auowry / for the office of a baylyfe stretcheth nat therto but he muste haue there in a speciall com­maundement of his mayster. Also if a ser­uaunt ryde on his maysters horse to do an erraunt for his mayster into a towne that hath auctoritie to make attachementes of goodes vpon playntes of dette &c̄. & there vpon a playnte of dette made agaynste the seruant: the maysters horse is atached by the officers thynkinge that the horse were his owne / & bycause the seruaunt appereth nat: the officers sease the horse as forfeyt / ī this case the lorde shall haue an accion of trespas agaynst the officers / & this attachemēt for the det of his seruaūt shall nat binde hī. &c̄. but y ^t an host or a keper of a tauerne shalbe charged for theyr ghestes oneles it be done by theyr assēt or cōmandement. [Page] I do nat remembre that I haue rede it in the lawes of Englande.

¶Addition. ☞Whether a villayne or abonde man maye gyue away his goodes. The .xliii. Chapitre.

It appereth in the sayd sū ne called Summa angelica in the citle donatio prima y ^e .9. Paragrafe that a bonde man nor a religious mā / nor a monke / ne suche other that hath nothīg in propre may nat gyue but it be by the li­cence of theyr superiour / but that sayenge is nat as it is sayd there to be vnderstande of religious persones that haue lawfull ministraciō of goodes / for if they giue with a cause reasonable: it is good / but without cause they may nat.

❧Also if they by the licence if theyr pre­late with the councell of the more parte of the couent abyde at scole or go on pilgri­mage: they may gyue as other honest sco­lers & pilgrymes be reasonably wonte to do / and they maye also gyue almes where [Page 106] there is great nede if they haue no tyme to aske licence.

❧Also if they se one in extreme necessite they may gyue almes though theyr supe­riours prohibite them / for than all thīges be in comon by the lawe of god. And therfore they be bounden for to do it / as appe­reth in the aforesayd summe called Sūma angelica in the title Elemosina the .6. Pagrafe. Dothe nat the lawe of Englande a­gree with these diuersities.

For as moche as the question is onely made whether a villayne or a bōde man may gyue awaye his goodes or nat. And it se­meth that after the forsayd Summe in y ^e title whiche thou haste before reherced / y ^t he ne none other y ^t hath no propertie may nat gyue / whereby it appereth y ^t the sayd Summe taketh it that a bondeman shulde haue no propertie in his goodes / & y ^t ther­fore his gyfte shulde be voyde: I shall som­what touche what propertie & what auto­ritie a villayn hath in his goodes after y ^e lawe of the realme / & what auctoritie the lorde hath ouer them. And I wyll leue the diuersities that thou hast remēbred before of religiouse persones to them that liste to treate ferther therin hereafter.

[Page] ❧Fyrst if a villayne haue goodes either by his owne proper byenge & sellynge / or otherwyse by the gyfte of other men / he hath as perfite a propertie & also as [...] interest in them / & maye as lawfully gyue thē away as any free man hath may. But if the lordes sease thē before his gifte: than they be the lordes / & the interest of the vil­layne therein is determined.

❧Also if the lorde sease parte of the goo­des of his villayne in the name of all the goodes that the villayne hath or shall he­reafter haue that seasure is good for all y ^e goodes that he had at that tyme / thoughe they were nat there present at the tyme of the sesure. But if goodes come to the vil­layne after the seasure: he maye lawfully gyue them away nat withstandynge the sayde seasure.

❧Also if the lorde clayme all the goodes of the villayne and seasith no parte of thē: that seasure is voyde / and the gyfte of the villayne is good nat withstandynge that seasure.

❧Also if a man be bounde to villayne in an obligacion in a certayne summe of mo­ney / & the lorde seaseth the obligacion: thā the obligacion is his / but yet he can take [Page 107] no accion there vpon but in the name of the villayne / and therfore if the villayne release the dette: the lord is barred by that release.

❧Also if a woman be a nyef / & she mary­eth a free man / the goodes immediately by the mariage be the husbandes / and the lorde shall come to la [...]e to make any seasu­re / & if the husbāde in that case maketh his wyfe his executrix & dyeth / and y ^e wyfe ta­keth the same goodes agayne as executrix to her husbande / yet it shall nat be lawfull for the lorde to take them frome her thou­ghe she be a nyefe as she was before the maryage.

❧Also if goodes be gyuen to a mā to the vse of a villayne / & the lorde seaseth those goodes / that seasure after some mē is good by the statute made in the .xix. yere of kīge Henry the .vii. whereby it is enacted that the lord shall entre ī to lādes wherof other persons be seased to the vse of his villayne & they say that the same statute shalbe vn­derstande by equitie of goodes in vse / as well as of landes in vse.

☞Also if a villayn be made a preste / yet neuertheles y ^e lord may sease his goodes & lā des as he might before. And vntill y ^e seses [Page] he may alien them & gyue them awaye as he might before he was preste. And in this case the lorde maye order hym so that he shall do hym suche seruice as belongeth to a preste to do before any other: but he may nat put hym to no laboure nor other busi­nes but that is honeste and lawfull for a preste to do.

❧ Also if a villayn entre in to religion [...] his yere of proffe he maye dispose his goodes as he might haue done before he toke the habitte vpō hym. And in likewyse the lorde maye sease his goodes as he myghte haue done before: but if he aftre make exe­cutours & be professed. And the executours take the goodes to the perfourmaunce of the wyll: than the lorde maye nat seise the goodes though the executours haue them to the perfourmaunce of the wyll of hym that is his villayne: nor in y ^t case the lorde may nat sease his bodye ne put hym to no maner of laboure but muste suffre hym to abyde in his religion vnder the obedience of his superiour as other religiouse persōs do that be no bondmen. And the lord hath no remedye in that case for losse of his bōd man but onely to take an acciō of trespas agaynst hym that receyued hym into reli­gion [Page 108] without his licence / & therevpō to re­couer dammages as shalbe assessed by .xii. men. Many other cases there be cōcernīg the gyfte of the goodes of a vilayn wherof I wyll speke no more at thꝭ tyme for this that I haue sayde suffiseth to shewe that the knowlege of the kynges lawe is right expediente to the good ordre of conscience cōcernynge suche goodes.

❧ If a clerke be promoted to the title of his patrimonie & after selleth his patrimonye & after falleth to pouertye whether shall he haue his title therin or nat. The .xliiii. Chapitre.

In the sayd sūme called Ro­sella in the title Clericus quartus / the xxiiii. article it is asked if a clerke be promoted to y ^e title of his patrimony whether he maye aliene it at his pleasure and whether in that alienacion the solempnite nedeth to be kepte that is to be kept in alienaciō of thynges of the churche / & it is an­swered there that it may nat be aliened no more thā y ^e goodes of a spirituall benefice [Page] if it be accepted for a title & expressely assigned vnto hym / so that it shulde go as in to a rhynge of the churche / except he haue after an other benefice wherof he may lyue. But if it be secretely assigned to his title: some agree it may be aliened / & in this case by the lawes of the realme it may be law­fully aliened whether it be secretely or opē ly assigned to his title / for the ordinarie ne yet the party hym selfe after the olde customes of the realme haue no auctorite to bī de any inheritaunce by aucthoritie of the spirituall lawe / & therfore the lande after it is assigned & accepted to be his title standeth: in the same selfe case to be boughte / solde / charged / or put in execuciō as it dyd before. And therfore it is somwhat to be maruayled that ordinaries will admitte suche lande for a title to the intēte that be that is promoted shulde nat fall to extreme pouerty or go openly a beggynge / without knowynge howe the comon lawe will ser­ue therin / for of mere right all enheritaūce within this realme ought to be ordered by the kynges lawes / & inheritaunce can nat be bounden in this realme but by fine or some other matter of recorde / or by feoffe­mēt / or suche other or at leste by a bargain [Page 109] that chaungeth an vse. And ouer that to assigne a stare for terme of lyfe to him that hath a fee simple before: is voyde in the la­wes of Englande without it be by suche a matter that it worke by way of conclusiō or estapell / & in this case is no suche mater of conclusion / & therfore all that is done in suche case in assignynge of the sayd title is voyde. Also there is no interest that a mā hath in any maner landes or tenementes for terme of lyfe / for terme of yerꝭ / or otherwyse / but that he by the law of the realme may put away his right therein if he will. And than whan this man alieneth his lā ­de generally: it were against the lawe of y ^e realme y ^t any interest of suche a title shuld remayne in hym agaynste his owne sale / & there is no diuersite whether the assigne­ment of the title were open or secrete / & so that title is voyde to all intentes. And in in lykewise if a house of religion or any o­ther spirituall man that hath graunted a title after the custome vsed in suche titles sell all the landes & goodes that they haue that sale in the lawes of Englāde is good as agaynste that title / & the byer shall ne­uer be put to answere to y ^t title. Also some saye that vpon the comō titles y ^t be made [Page] dayly in suche case that if he fall to pouer­tie that hath the title he is without reme­dy / for they be so made that at the comon lawe there is no remedye for them / & if he take a sute in the spirituall court may men saye that a prohibiciō or a premunire lieth And therfore it were good for ordinaries ī suche case to counsayle with them that be lerned in the lawe of the realme to haue suche a forme deuised for makynge of suche titles / that if nede be wolde serue thē that they be made vnto / or elles lette thē be promoted without any title / & to truste in god that if they serue hym as they ought to do he wyll prouide for them to haue sufficient for them to lyue vpon. And beside these ca­ses that I haue remembred before / there be many other cases put in the sayde sum­mes for the well orderynge of conscience / that is as me thynketh are nat to be obserued in this realme neyther in lawe nor in conscience.

Doste thou than thynke that there was defaute in them y ^t drewe the sayd sūmes & put there in suche cases & suche solucions that as thou thyn­kest hurte conscience / rather than to gyue any light to it / specially as in this realme.

I thynke no defaute in them / [Page 110] but I thynke that they were righte well & charitably occupied to take so greate payn & labour as they dyd therin for the welthe of the people & clerynge of theyr conscien­ces / for they haue therby gyuen a righte greate light in conscience to all countreys where the lawe Ciuile & the lawe Canon be vsed to temporall thynges. But as for the lawes of this realme they knewe them nat ne they were nat bounde to know thē / & if they had knowen them it wolde litell haue holpen for the countreys that they mooste specially made theyr treatices for / & in this countrey also they be right neces­sary & moche profitable to all men for su­che doutes as ryse in conscience in diuers other maners nat concernyng the lawe of the realme. And I meruayle greatlye that none of them that in this realme are most bounden to do that in them is to kepe the people in a right iugement & in a clerenes of conscience: haue done no more in tyme past to haue the lawe of the realme knowē than they haue done / for though ignorāce may somtyme excuse / yet the knowlege of the trouth & the true iugemente is moche better / & somtyme though ignoraūce excu­seth in parte it excuseth nat ī all / & therfore [Page] me thīketh they dyd very well if they wol­de yet be callers on to haue that poynt re­formed as shortly as they could. And now bycause thou haste well satisfied my minde in many of these questions that I haue made: I purpose for this tyme to make an ende.

I praye the yet shewe me or that thou make an ende mo of y ^e cases that after thyne oppynion be set in di­uers bokes for clerynge of conscience that as thou thynkest for lacke of knowynge of the lawes of the realme do rather blynde conscience than gyue a light vnto it / for if it be so than surely as thou haste sayde it wolde be reformed / for I thynke veryly y ^e lawes of the realme ī many cases muste in this realme be obserued as well in consciē ce as in the iudiciall courtes of the realme

I will with good will shewe to the shortely some other questions that be made in the sayde summe to gyue the & o­ther occasion to se therin the oppinions of the sayde summes / & to se ferther therupon howe the opiniōs & y ^e lawes of the realme do agre togyder. And yet beside these que­stiōs y ^t I intēde to shew vnto the there be many other questiōs in the sayd summes that had as greate nede to be more plainly [Page 111] declared accordinge to the lawes of y ^e real me as those that I shal shew the hereafter or as I haue spokē of before / but to the ca­ses that I shall speke of hereafter I wyll shewe the nothyng of my conceyt in them / but will leue it to other that wyll of chari­tie take some ferther payne hereafter in y ^t behalfe.

❧Diuers questions taken out by the student of the summes called Summa rosella / & Sūma angelica / which he thynketh necessari to be loked vpon and to be sene howe they stande & a­gre with the lawe of the realme. The .xlv. Chapitre.

THe fyrste question is this / whether a custome may breke a lawe positiue Summa rosella / titulo consuetudo. Paragrafe. 13.

❧ The seconde is if a man attaynted or banisshed be restored by the prīce / whether shall that restitucion stretche to the goodes Summa rosella in the title Dampnatus ī principio.

[Page] ❧Item if a man be outlawed of felony / abiured / or attaynted / of murdre or felony or he that is an ascimus may be slayne by estrāgers & se lyke mater therto / Sūma angelica / in the title Ascismus. Para. 2.

❧This question is somwhat answered to in a newe addicion as appereth before in the .xli. Chapitre.

❧Item whether the mayster shalbe boū de by the acte or offence of his seruaunt or officer Summa angelica in the title dominus. Para. 4.

❧This questiō is answered to in a newe Addicion / as appereth before in the .xlii. Chapitre.

❧Item whether a villayn may gyue a­way his goodes / Summa angelica / in the title donacio prima. Para. 9.

❧This questiō is answered to in a new Addition as appereth before in the .xliii. Chapitre.

❧Itē whether an Abbot may gyue. &c̄. Summa angelica / in the title Donatio .1. Para. 10. &. 39.

❧Item whether a woman couert maye giue away any good / & it is answered / Sū ma angelica / in the title donatio .1. Para­grafe .11. that she may nat without she ha­ue [Page 112] goodes besyde her dowrye but onely in almes.

❧Item if a man do treason whether his gyfte of goodes after before atteyndre be good / Summa angelica / In the title donacio .1. Para. 12. & it semeth there nay / & loke Summa angelica / in the title alienacio. Paragrafe .24.

❧Item if a man wittyngly make a contracte betwene two kinnesfolke or other that may nat lawfully marie togyder whether he hath forfeth his goodes / Summa angelica / in the title donacio .1. Paragra­fe. 14.

❧Item whether y ^e father may gyue to the sone / Summa angelica / in the title donacio .1. Para. 19. & Summa rosella / in the title donacio .2. Para. 42.

❧Item whether a man may gyue abo­ue. v.c.s. abs (que) insinuacione / Summa an­gelica / in the tytle donatio. prima Para­grafe. 20.

❧Item whether a gyfte shalbe auoyded by an ingratitude / Summa rosella in the title denatio .1. Paragrafe .17. & .29. & there it is sayd that y ^e gyfte is voyde by the law of nature / and looke Summa angelica / in the title donatio prima. Para. 42. & .45.

[Page] ❧Itē whether any gyft betwene the husbande & the wyfe may be good / & it is sayde ye whan the husbāde gyueth it causa re­maneracionis / Sūma rosella / in the title donatio .1. Paragrafe .32.

❧Item if a mā make a will & entre into religion whether he may after reuoke the wyll & it is sayd that freres minours may nat / & other maye / Summa rosella / in the title donacio prima. Paragrafe .35. in fine ⸫

❧Item if a man gyue a nother a towne with all the rightes y ^t he hath in the same whether the patronage. &c̄. & the tithes passe / Sūma rosella / in the title donatio pri­ma. Paragrafe .56.

❧Item wheter all that is bought with the money of the churche be the churches Summa rosella / in the title ecclesia. 1. Paragrafe. 7.

❧Itē if a gyft made to a monasteri may be auoyded by that the gyuer hath chyl­drē after the gyfte. Sūma angelica in the title donatio .1. Para. 43.

❧Itē if a mā bye a thyng vnder the half pryce / whether he be boūde by the lawe to restore. &c̄. Sūma rosella / ī the title emptio & venditio. Para. 6.

[Page 113] ❧Itē whether a comō thefe vel cōmunꝭ depopulator agro (rum) may abiure / Sūma rosella / in the title emunitas .2. in principio. Et habetur ibi ī fine qd licet leges excipiāt plures personas tū per ius canonicū legi­bus derogatum est.

❧Itē whether a mā shal take y ^e church for great enormious offēces y ^t is nat murder nor felonye. Sūma rosella / in the tytle Emunitas .2. Paragrafe .3. & .11.

❧Item if a man take one in the hyghe way & draw hym out & there beteth hym / whether he shall haue punisshemēt that is ordeyned for thē y ^t stryke one in the hyghe way / Sūma rosella in the title emūtas .2. Paragrafe .6.

Itē whether he y ^t taketh y ^e church may after for that offence be iuged to dethe / Sū ma rosella / in the title Emunitas .2. Pa­ragrafe .8.

❧Itē whether the Bisshopes paleys be sentuary. Summa rosella / in the title emunitas .2. Para. 24.

❧Itē whether the dignite of a Bisshope or presthode discharged boūdage / Sūma rosella / in the title episcopus / in principio.

❧Itē whether a clerke is boūde to paye any imposicions or tallages for his patrimoney [Page] or otherwyse. Summa rosella / in the title excommunicatio. 1. diuisione octaua. Para. 4. & .5. & .6. & diuisione nona Pa­ragrafe .1.

❧Item if it were ordeyned by statute y ^t if a man selle. &c̄. he shall gyue to the kyng 11. d. whether a clerke be bounde to gyue it if he sell of his prebende / Summa rosella / in the title excommunicatio. 1. diuisione no na. Paragrafe .3

❧Item if it be ordeyned by statute that there shall nat be layde vpon a ded persone but suche a certayne clothe / or thus many tapers or candels / whether the statute be good & it is lefte for a question. Sūma ro­sella / in the title excōmunicatio. 1. diuisio­ne .18. Para. 8. in fine.

❧Item if a man make a lease of a mylle for terme of yeres and it is agreed that the losse shall grynde the lessoure tolle fre du­ringe the terme / after the lessoure is made an Erle or a Duke & hath greater housholde than before / whether the lesse be bounde therto. &c̄. Sūma rosella / in the title fami­lia. Paragrafe .5.

❧Item if a mayster wyll nat pay his seruaūtes wages that hath serued hym faith fully whether that the seruaunt may take [Page 114] secretlye as moche goodes of the maysters &c̄. & if he do whether he be bounde to resti­tuciō / Summa rosella / in the title familia Paragrafe .6.

❧Itē thynges immouable of y ^e church may nat be gyuen / Summa rosella / in the title of odū. Para. 1. & se there in principio what feodum is.

❧Itē whether the sones bastardes & the sones lawfully begotten shall enherit togyder / Summa rosella / in the title filius. Paragrafe .1.

❧Itē whether father & mother may succede to theyr bastardes / Summa rosella / ī the title filius. Paragrafe .4.

❧Item whether the father maye leue any of his goodes to his basterde / Sum­ma rosella / in the title filius. Paragra. 5. & Summa rosella / in the title societas. Pa­grafe .23.

❧Item whether the offēce of the father shall hurte the sone in temporall thynges / Summa rosella / in the title filius. Para­grafe .10.

❧Itē if a man gyue all his landes & goodes to his chyldren / whether a bastarde shall haue any parte / Sūma rosella / in the title filius. Paragrafe .22.

[Page] ❧Item to whome treasoure sounde be­longeth / Summa rosella / in the title fur­tum. Para. 11.

❧Itē if a dere or other wilde beaste that is so sore hurt that he may be takē cometh in to another mannes grounde whether it be his that oweth the grounde or his that strake hym / Sūma rosella / in the title fur­tum. Para. 13.

❧Itē whether thiefte be in a littell thīg as well as in a greate thynge / Summa rosella / in the title furtum. Para. 18.

❧Itē what payne a thefe shal haue / Sū ma rosella / in the title furtum. Para. 22.

❧Itē the goodes of ded men go to the heyres & that of dampned men. s. de terris Summa rosella / in the title hereditas. Paragrafe .1.

❧Itē whether a mā shalbe sayde gyltie of murder by cōmaundemente coūsayle or assent / Summa rosella in the title homici­dium .2. per totum / & lyke matter is homicidium .4. in principio and diuers other cases.

❧Itē a man maketh a priuy contracte with a womā & after hath a chylde by her / & after maryed a nother woman & hath a chylde she nat knowīge of the fyrst cōtract [Page 115] whiche of the chyldren shalbe his heyre / Summa rosella / in the title Illegitimus. Paragrafe .3.

❧Itē whether the Pope may legittimate one to temporall thynges & to succede / Summa rosella / in the title Illegittimus Paragrafe .25.

❧Itē if goodes be founde that were left of the owner as forsaken who hath righte to them / Sūma rosella / in the title Inuenta. Paragrafe .2. And loke Summa rosel­la / in the title furtum. Paragrafe .17. And thus I make an ende of these questions / & bycause thou desyredest me in the .xxxi. chapitre to shewe the somwhat where ignorā ce excuseth in the lawe of the realme and where nat / I wil answere somwhat to thy question & so cōmit the to god.

☞Where ignorance of the lawe excuseth in the lawes Englāde & where nat. The .xlvi. Chapitre.

Ignorāce of the law though it be inuincyble dothe nat excuse as to the lawe but in fewe cases / for euery man is bounde at his peryll to take know­lege what the law of y ^e realme is as well y ^e law made by statute as y ^e comō law / but [Page] ignoraunce of the dede whiche may be called the ignoraunce of the trouth of the dede may excuse in many cases.

I put case that a statute penall be made & it is enacted that y ^e statute shalbe proclaymed before suche a day in euery shyre / & it is nat proclaymed before the daye / & after the day a man offendeth agaynst the statute shal he renne in the penalty.

I thynke ye / if there be no ferther wordes in the statute to helpe hym / that is to say / that if the proclamacion be nat made that no man shall be bounde by the statute / and the cause is this / there is no statute made in this realme but by the assēt of y ^e lordes spirituall & temporall & of all the comons / that is to say / by the knightes of the shyre Cytezens / & Burgeses that be chosen by assente of the comons / whiche in the parlia­ment represente the estate of the hoole co­mons. And euery statute there made is of as stronge effecte in the lawe as if all the comons were there present personallie at the makyng therof / & lyke as there neded no proclamacion if all were there presente in theyr owne persone / so the lawe presu­meth / there nedeth no proclamacion whan it is made by theyr authoritie / & than whā [Page 116] it is enacted that it shalbe proclaymed. &c̄. that is but of the fauoure of the makers of the statute & nat of necessite / and it can nat therefore be taken that theyr intente was that it shulde be voyde if it were nat pro­claymed. Neuertheles some be of oppiniō that if a man before the day appoynted for the proclamacion offende the estatute that he shulde nat in that case be punisshed / for they say that the intente of the makers of the statute shalbe takē to be y ^t none shulde be punisshed before that daye / whiche is a doute to some other / but admitte it be as they saye that he shalbe excused / yet he is nat excused by the ignoraunce of the lawe / but by cause the intent of the makers excu­sed hym.

It is enacted in the vii. yere of kyng Rycharde the seconde the vi. chapitre that euery shyryfe shall pro­clayme the statute of Wynchestre thre ty­mes euery yere in euery market towne to the intent that offenders shall nat be excu­sed by ignorance / & it semeth by those wor­des that if no proclamacion be made that the offender may be excused by ignoraunce

Some take the intente of that statute to be that the people by that proclamaciō shulde haue knowlege of the statute [Page] of Winchestre to the intēt that the forfeture therein may be taken as well in consciē ce as in lawe / & some take the statute to be of suche effect as thou spekest of / that is to say / that no forfeture shulde growe vpon the statute of Wynchestre agaynst thē that were ignoraunt but proclamacion were made accordyng to the sayd statute of Rychard. And if it be so taken thā the statute of Wynchestre is of small effecte agaynste moste parte of the people: for certayne it is that the sayd proclamacion is nat made / but admitte it be as they say / thā they that be ignoraunte be excused by the sayd per­ticuler estature specially made in that case & nat by the generall rules of the lawe / & sōtyme in diuers statutes penalles they y ^t be ignoraunt be excused by the selfe statute as it is vpon the statute of Rycharde the .ii. the .xiii. yere / the secōde statute & the last chapitre where it is enacted y ^t if any per­sone take a benefice by prouision that he shalbe banysshed the realme & forfet all his goodes / & y ^t if he be in the realme he auoid within .vi. wekes after he hath accepted it & that none shall receyue hī that is so ba­nysshed after the sayd .vi. wekes vpon lyke forfeture / if he haue knowlege / & so he that [Page 117] hath no knowlege is excused by y ^e expres­se wordes of the statute. And in lykewyse he that offendeth agaynste Magna carta is nat excōmenged but he haue knowlege that it is prohibit that he dothe. For they be onely excōmenged by the sentēce called (Sētentia lata suꝑ cartas) y ^t dothe it wil­fully or that dothe it by ignoraūce / & correcte nat the selfe within .xv. days after they haue warninge. And somtyme y ^e y ^t be ignoraunte of a statute be excused fro the penaltie of statute bycause it shalbe takē that the intēte of the makers of y ^e statute was that none shalbe bounde but they that ha­ue knowlege / but that any man shulde be discharged in the lawe by ignoraunce of the lawe onely for that he is ignorante. I knowe fewe causes excepte it might be applied to infantes that be in theyr infancy & within yeres of discrecion / for if ignoraū ce of the lawe shulde excuse in the lawe many offenders wolde pretende ignoraunce.

Shall an infaunte that hath discrecion & knoweth good fro euyll be pu­nisshed by a penall statute y ^t he is ignorāt in.

If the statute be that for y ^e offence he shulde haue corporall payne I thynke he shalbe excused & haue no corpo­rall [Page] payne / but I suppose that that is nat for the ignoraunce / for thoughe he knewe the statute & wittigly offēded / yet I thike he shall haue no corporall payne as where he pleeded I ointenauncie by dede that is foūde agaist hym / or if he piede a recorde ī assise & fayleth of it at his day / but that is bycause the lawe presumeth that it was nat the intente of the makers of the statu­te that he shulde haue that punishement / but if he be of yeres of discrecion to knowe good fro euyll whether he shall than forfet the penaltie of a penall statute it is more doute / for it is comōly holden that if an in­faūt had nat ben excepted in the statute of foriugemēt y ^t y ^e foriugemēt shulde haue boūde hī / & so shall his cesser & hꝭ leuiēge of a crosse agaīst the stat / or if he be a gardeī of a prysone & suffre a prysoner escape he shall pay the derte bycause the statutes be generall & if he shulde by tho statutes be boūde within age lyke reason wyll that he may by a statute penall liese his goodes.

If an infaunt do a murder or a felonye at suche yeres as he hath discre­cion to knowe the lawe / shall he nat haue the punisshement of the lawe as one of full age.

I thynke yes / but that is [Page 118] by an olde maxime of the lawe for esche­wynge of murders & felonyes / & so it is of a trespas / but these cases renne nat vpon the groūde of ignoraunce / but with what acre infantes shalbe punisshable or nat punisshable / for the tendernes of theyr age though they be nat ignoraunce.

Be nat yet knyghtes & noble men that are bounde moste properly to set theyr studye to actes of chyualrye for defē ce of the realme. And husbande men that muste vse tyllage & husbandry for the su­steynaunce of the cominaltie / & that maye nat by reason of theyr laboure put thē selfe to knowe the lawe: discharged by ignorance of the lawe.

No verely / for sith all were makers of the statute: the law presumeth that all haue knowlege of that that they make / as it is sayd before / & as they be boūde at theyr peryll to take knowlege of the statute that they make: so be all that come after thē. And as for knyghtes & other nobles of the realme me semeth y ^t they shulde be bounde to take knowlege of the lawe as well as any other within the realme except them that gyue thē selfe to the study & exercyse o the law & except spirituall iuges that in many cases be boūde [Page] to take knowlege of the law of the realme as is sayd before in the .xxv. chapitre. For though they be boūde to actes of chyual­ry for defēce of the realme / yet they be boū den also to the actes of iustice / & that as it semeth more thā other be by reasō of theyr great possessions & auctoritie. And for the well orderynge of they tenantes / seruātes & neyghbours that many tymes haue nede of theyr helpe / & also bycause they be ofte called to be of kynges coūsayle & to the ge­nerall counsayles of the realme / where theyr coūsayle is right expediēt & neccessarie for the comon welthe / & therfore if the noble men of this realme wolde se theyr chyldren brought vp in suche maner that they shulde haue lernīge & knowlege more than they haue comonly vsed to haue in tyme past / specially of the groundes & principles of the lawe of the realme wherin they be enheryte / though they had nat y ^e hygh cōnynge of the hole body of the lawe / but after suche maner as mayster Fortescue ī in his boke that he intitelleth the boke (de laudibus legum Anglie) auertisith the prī ­ce to haue knowelege of the lawes of hys realme / I suppose it wolde be a great hel­pe hereafter to the ministracion of Iustice [Page 119] in this relame. A greate surely for thē selfe & a righte greate gladnes to all the people for certayn it is the more parte of the peo­ple wolde more gladly here that theyr ru­lers & gouernours entended to order them with wisdome & Iustice than with power & greate retynues. But ignoraunce of the dede many tymes excuseth in the lawes of Englande. And I shall shortely touche some cases thereof to shewe where it shall excuse and wbere it shall nat excuse / & thā the reder maye adde to it after his pleasu­re and as he shall thynke to be conue­niente.

☞Certayne cases & groundes where ig­noraunce of the dede excuseth in the lawes of Englande & where nat. The .xlvii. Chapitre.

If a man bye a horse in open market of hym that in righte hath no propertye in hym nat knowynge but that he hath righte / he hath good title and righte to the horse / and that ignoraunce shall excuse hym. But if he had bought hym oute of open market / or if he had knowen that the seller had no righte / the byeng in opē market had nat excused hym [Page] Also if a man reteyne a nother mannes seruaunt nat knowynge that he is reteyned with hym / that ignoraunce excuseth hym bothe for the offence that was at the comō lawe agaynst the maxime that prohibited suche reteynynge of a nother mannes ser­uaūt. And also agaynst the statute of .xxiii. of Edwarde the .iii. whereby it is ꝓhibite vpon payne of inprysonemente that none shall reteyne no seruaunte that departeth within his terme without licence or reaso­nable cause / for it hath ben alwaye taken that the intente of the makers of the sayde statute was that they that were ignoraūt of the fyrste reteynoure shulde nat renne in any penaltye of the statute. And the same lawe is of hym that reteyneth one that is warde to another / nat knowynge that he is his warde. And if homage be due & the tenaunt after that the homage is due ma­keth a feoffement / & after the lorde nat knowynge of the feoffement distreyneth for y ^e homage in that case that ignoraunce shall excuse hym of dammages in a Repleuin / thoughe he can nat auowe for the homage but if he had knowen of the feoffemente he shulde haue yelded damages for the wrōgfull takynge. Also if a man be boūde in an [Page 120] obligaciō that he shall repayre the houses of hym that he is bounde to by suche a certayne tyme as ofre as nede shall require / & after the houses haue nede to be repayred but he that is bounde knoweth it nat / that ignoraūce shall nat excuse him for he hath bounde hym selfe to it / & so he muste take knowlege at his peryll / but if the condiciō had ben that shulde repayre suche houses as he to whome he was bounde shulde as­signe / & after he assigneth certayne houses to be repayred / but he that is bounde hath no knowlege of that assignement / that ig­noraunce shall excuse hym in the lawe / for he hath nat bounde hym selfe to no repa­raciōs in certayne / but to suche as the party will assigne / and if he none assigne he is boūde to none / & therfore syth he that shuld make the assignement is priuye to the dede he is bounde to gyue notice of his owne assignement / but if the assignement had ben appoynted to a straūger thā the oblegour muste haue taken knowlege of the assignement at his peryll. Also if a man bye lādes whereunto a nother hath title whiche the byer knoweth nat / that ignoraunce excu­seth hym nat in the lawe no more than it dothe of goodes. Also if a seruāt come with [Page] his maysters horse to a towne that by cu­stome may attache goodes for det / & vpon a playnte agaynst the seruaūte: an officer of the towne by informacion of the party attacheth the maysters horse thynkynge that it were the seruantes horse / that ignoraunce excuseth hym nat / for whan a man wyll do an acte as to entre in to lande / sea se goodes / take a distresse or suche other / he muste by the law at his peryll se that that he doth be lawfully done as in the case be­fore reherced. And in lykewyse if a shyryfe by a repleuyn deliuer other beastes than were distreyned / thoughe the partye that distreyned shewed hym they were the same beastes / yet an accion of trespas lyeth a­gaynst hym / & ignoraunce shall nat excuse hym for he shalbe compelled by the law as all officers comonly be to execute the kyn­ges writte at his peryll accordynge to the tenour of it & to se y ^t the acte that he dothe be lawfully done. But otherwyse it is af­ter some men if vpon a somons in a Precipe quod reddat the shyryfe by informacion of the demaundaunt somoneth the tenaūt in a nother mānes lande thynkynge it for the tenauntes lande there they say he shal­be excused / for in that case he dothe nat sea [Page 121] se the lande ne take possession in the lande / but onely dothe somon the tenaunt vpō y ^e lande / & the writte cōmaundeth hym nat that he shall somon the tenaunt vpon hys owne lande but generally that he shall so­mon hym & nameth nat in what lande & than by an olde maxime in the lawe it is taken that he shall somon hym vpon the lā de in demaunde / & therfore though he mis­take the lande & ignoraunt of it / yet if the demaundaunt enforme hym that that is the lande that he demaundeth that suffy­seth to the shyryfe as to his entre for the so monynge as they saye: though it be nat y ^e tenaūtes lande. And here I make an ende of these questions for this tyme.

I praye the yet or we departe take a litell more payne at my desire.

what is that.

That thou woldest shewe me thy mynde in diuers cases of the law of the realme / whiche as me se­meth stande nat so clerely with conscience as they shulde do. And therfore I wolde gladly here thy conceyte therein how they may stande with conscience.

Put the cases & I shall with good will say as I thynke to them.

¶Addition. ☞The fyrste question of the Doctour. Howe the lawe of Englande maye be sayd reasonable that prohibi­teth them that be arreyned vpon an Inditemente of felony or murdre to haue coūcell. The .xlviii. Chapitre.

Me thynketh that the lawe in that poynte is very good & indiffe­rent takynge the lawe therein as it is

why what is the lawe in this poynt.

The lawe is as thou sayst that he shall haue no coūcell / but thā the law is ferther / that in all thynges that perteyne to the ordre of pledynge: the Iu­ges shall so instructe hym & so ordre hym that he shall renne into mo ieopardye by his mispleadyng / as if he wyll pleade that he neuer knewe the man that was slayne / or that he neuer had a peny worthe of the goodes / that is supposed y ^t he shulde steele in these cases the Iuges are boūde in con­science to enforme hym that he muste take [Page 122] the general yssue & plede that he is nat gyltye / for thouh they be set to be [...] bytwene the kynge & the partye as to the partye as to the principall matter as they be in all other matters: yet they be [...] this case to se that the partye haue no hurt in fourme of pleadynge in suche induces as he shall shewe to be the truthe of y ^e matter / & that is a greate fauoure of the lawe / for ī appell though the Iustices of fauour wyll moste comonly helpe fourth the par­tye & sōtyme his counsell also in the forme of pleadynge as they do also many tymes in common plees / yet they might in tho cases if they wolde byd the party & his coun­sayle plede at theyr peryll. But they maye nat do so with conscience vpon eno [...]ementes as me semeth / for it were a greate vn­reasonablenes in the lawe if it shulde pro­hibit hym that standeth in ieopardy of his lyfe that he shulde haue no coūsayle / & thā to dryue hym to plede after the strayte ru­les & formalities of the lawe that he kno­weth nat.

But what if he be knowen for a comon offender / or that the Iuges knowe by examinaciō or by an euident presumpcion that he is gylty & he as­keth sent wary / or pledeth misnomer or [Page] hath some recorde to plede that he can nat plede after the fourme. Maye nat the Iu­ges in suche cases byd hym plede at his peryll.

I suppose that they may nat / for though he be a comon offender or that he be gyltye / yet he oughte to haue y ^t the law gyueth hym / & that is that he shal haue the effecte of his plees & of his mat­ters entred after the forume of y ^e law / and also somtyme a man by examinacion & by wytnes may appere gyltye that is nat gyltye. And in likewyse there may be a vehe­ment suspicion that he is gyltye & that yet he is nat gyltye / & therfore for suche susspicious or vehement presumpcious me thynketh a man may nat with consciēce be put fro that he ought to haue by the lawe: ne yet all though the Iuges knew it of theyr owne knowlege. But if it were in appele I suppose that the Iuges might do therin as they shulde thynke best to be done in cō science / for there is no lawe that byndeth them to īstructe hym / but as they do comō ly the partyes of fauoure in all other cases but they may if they will byd them plede at theyr peryll by aduise of theyr coūcell / & if the appelle be pore & haue no coūcell: the court muste assigne hym coūcell if he aske [Page 123] it as they muste do ī all other plees / & that me thynketh they are boūde to do in con­science though the appelle were neuer so great an offender / and though the Iuges knewe neuer so certaynly that he were gyltye / for the lawe byndeth thē to do it. And some thynketh that there is great diuersite betwene an indicte & an appelle. And y ^e reason why the lawe prohibiteth nat coū ­cell in appelle as it dothe in an inditement I suppose is this. There is no appell brought but that of comon presumpcion the ap­pellaūt hath great malice agaynst the ap­pelle. As whan the appele is broughte by the wyfe of the deth of her husbande / or by the sone of the deth of his father / or that an appele of robbery is brought for stelīg of goodes. And therfore if the iuges shulde in those cases shewe them selfe to instructe the appells: the appellauntes wolde grut­che & thynke thē perciall / & therfore as wel for the indēpnitie of the court as of the appelle in case y ^t he be nat gyltye the law suffereth the appelle to haue coūcell / but whā that a mā is indicted at y ^e kynges sute / y ^e kīge intēdeth nothyng but iustice with fa­uour & y ^t is to y ^e rest & quietnes of hꝭ faithful subiectꝭ / & to pul away misdoers amōg [Page] them charitably / & therfore he wyll be contented that his iustices shall helpe forthe the offenders accordyng to the trouthe as fe [...]te as reasone & iustice may sufice. And as the kynge wyll be contented therein: it is to presume that his coūsayle wyll be cō tented. And so there is no daunger therby neyther to the cou [...] ne to the party / & as I suppose for this treason it bega that they shulde haue no councell vpō inditementes & that hath so longe continued that it is nowe growe into a custome & into a maxi of the lawe that they shall none haue.

But if the iuges knowe of theyr owne knowlege that the induer is gylty / & than he pledeth misnomer or a re­corde that he was autre [...]oytz arraynded & acquyt of the same murdre or felony / & the iuges of theyr owne knowlege know that the plee is vntru: may they nat than bid hī plede at his peryll.

I thynke yes: but if they know of theyr owne know­lege that he were gylty of the murdre or felonye: but y ^t the plee was vntrewe they knewe nat but by cōiecture or informaciō I thynke they mighte nat then byd hym pleade at his peryll.

☞The seconde question of the Doctoure whether the warrantie of the ionger brother that is taken as heyre by­cause it is nat knowē but that the eldest brother is ded / be in conscience a barre vnto the elder bro­ther as it is in the lawe ⸫ The .xlix. Chapitre.

A man seased of landes in see hathe issue two sonnes the eldest sone goth beyonde the see & bycause a comon voyce is that he is ded the ionger brother is takē for heyre / the father dyeth the ionger brother entreth as heyre & alie­neth the lande with a warantye & dyeth without any heyre of his body / & after the elder brother cometh agayne & claymeth the lande as heyre to his father / whether shall he be barred by that warantye in conscience as he is in the lawe.

It is an maxime in the lawe that the eldest brother shall in that case be barred. And that maxime is taken to be of as strōge effecte in the lawe as if it were ordeyned by statute to be a barre. And it is as old a law [Page] that suche a warātye shall barre the heyre as it is that the enheritaunce of y ^e father shall onely descende to the eldest sone. And syth the lawe is so why shulde nat thā consciēce folow the lawe as well as it doth in that poynt y ^t the eldest sone shall haue the lande.

For there appereth no resonable cause wherupon that maxime mighte haue a lawfull begynnynge / for what reason is it that the warantye of an auncestre that hath no right to the lande shulde barre hym that hath righte. And if it were ordeyned by statute that one mā shuld haue a nother mānes lāde & no cause is expressed why he shulde haue it / in that case though he mighte holde the lande by force of that statute / yet he coulde nat holde it in conscience without there were a cause why he shulde haue it & these cases be nat lyke as me semyth to the forfeture of goo­des by an outlawrye / for I wyll agree for this tyme that that forfeture stādeth with conscience bycause it is ordeyned for ministraciō of iustice / but I cā nat ꝑceyue any suche cause here: & therfore me thinketh y ^t this case is lyke to the maxime y ^t was at the comō law of wrecke of the see / that is to say that if a mānes goodes had bē wrecked [Page 125] vpō the see that the goodes shuld haue ben īmediatly forfayted to the kyng. And it is holdē by all doctors y ^t y ^t law is agaīst cōscience except certayne cases that were to longe to reherce now. And it was ordeyned by the statute at Westmynster the first that if a dogge or cat come alyue to the sā ­de that the owner if he proue the goodes within a yere & a daye to be his shall haue thē whereby the sayde lawe of wreckes of the see is made more sufferable thā it was before / & some thynketh in this case y ^t this warrantie is no barre in cōscience though it be a barre in the law.

I pray the kepe that case of wrecke of the see ī thy remembraunce & put it hereafter as one of thy questions & thereupon shewe me thy ferther mynde therein / & I shall with good wyll shewe the mynde / and as to this case that we be in nowe me thynketh the maxime wherby the warrātye shalbe a barre is good & resonable / for it semeth nat agaīst reason that a man shalbe bounde as to tē ­porall thynges by the acte of his aūcestre to whome he is heyre / for lyke as by the lawe it is ordeyned that he shall haue ad­uauntage by the same auncestre & haue al his landes by dissent if he haue any righte [Page] so it semeth that it is nat vnreasonable though the lawe for the priuity of blode y ^t is bytwene them suffre hym to haue a dis­aduauntage by the same auncestre / but if the maxime were that if any of his aunce­stres though he were nat heyre to hī made suche a warrantye that it shulde be a barre I thynke that maxime were agaynst con­science / for in that case there were no groū de nor cōsideraciō to proue howe the sayd maxime shulde haue a lawfull begynnyng wherefore it were to be taken as a maxim agaynst the lawe of reason / but me thyn­keth it is otherwyse ī this case for the rea­son that I haue made before.

If the father bynde hym & his heyres to y ^e paymente of a dette & dye / in that case the sone shall nat be bounde to pay the det oneles he haue asses by discent fro his father. And so I wolde agree that if this mā had asses by discent fro the aūcestre that made the warranty: that he shulde haue be bar­red / but elles me thynketh it shulde stande hardly with conscience that it shulde be a barre.

In that case of the obligaciō the law is as thou sayst / & y ^e cause is for that the maxime of the law in y ^t case is none other but that he shalbe charged if he [Page 126] haue asses by discente / but if the maxyme had ben generall that the heyre shulde be bounden in that case without any asses / or if it were ordeyned by statute that it shulde be so / I thynke that bothe the maxime & the statute shulde well stande with consciē ce. And lyke law is where a mā is vouched as heyre / he may entre as he that hath no­thynge by discent / but where he claymeth the lande in his owne right there the warrantie of his auncestre shalbe a barre to hī though he haue no assesse fro the same aū ­cestre / & though it be sayd in Ezechiel the .xviii. chapitre. That the sone shal nat bere the wyckednes of the father / that is vnderstande spiritually: But as to tēporall goo­des the opinion of doctours is / y ^t the sone somtyme maye bere the offence of his fa­ther.

Nowe that I haue herde thy mynde in this case I wyll take aduisement therein tyll a better leasure. And wil nowe procede to another question.

I praye the do as thou sayste & I shall with good wyll make answere thereto as well as I can.

☞The thyrde question of the Doctoure if a man procure a collaterall warrā ­tye to extincte a right that he knoweth a nother man hath to lā de / whether it be a barre in conscience as it is ī the lawe or nat ⸫ The .l. Chapitre.

A man is disseased of cer­tayne lāde the disseasoure selleth the lāde. &c̄. the aliene knowynge of the disseason optayneth a release with a warā tye of an auncrestre colaterall to the disseasie that knoweth also the right of y ^e disseasye. The auncestre colaterall dyeth after whose deth the warrātye discendeth vpon the disseasye / whether maye the aliene in that case holde the lande in conscience as he may by the lawe.

Syth the warantye is discended vpon hym wherby he is barred in the lawe / me thynketh that he shall also be barred in conscience / and that this case is lyke to the case in the next chapitre before / wherein I haue sayd that as me thynketh it is a barre in conscience.

Though it might be takē for [Page 127] a barre in conscience in that case / yet me thynketh in this case it can nat / for in that case the longer brother entred as heyr knowynge none other but that he was heyre of right / & after whan he solde the lāde the byer knewe nat but that he that solde it had good right to sell it / & so he was igno­raunt of the title of the eldest brother and that ignoraunce came by the defaut & ab­sence of hym selfe that was the elder bro­ther. But in this case as well the byer as he that made the colaterall warrātie knew the righte of the disseasye & dyd that they coulde to extincte that right / & so they dyd as they wolde nat shulde haue be done to them / & so it semeth that he that hath the lāde may nat with cōsciēce kepe it.

Though it be as thou sayste that all they offended in opteynyng of the sayd co­laterall warrantie / yet suche offence is nat to be cōsidered in the lawe but it be in very speciall cases / for if suche alegiaūce shulde be accepted in y ^e law / relesses & other writtinges shuld be of smal effecte / & vpō euery light surmise all writtinges might come ī triall whether they were made with cōsciē ce or nat. Therfore to auoyde that incōue­niēce y ^e law will driue y ^e partye to āswere [Page] onely whether it be his dede or nat / & nat whether the dede were made with consciē ce or agaynst conscience / & though the partye may be at a mischyefe thereby / yet the lawe wyll rather suffre that mischiefe thā the sayd inconuenience. And lyke law is if a woman couert for drede of her husbande & by cōpulcion of hym leuye a fyne / yet the woman after her husbādes dethe shall nat be admitted to shewe that matter in auoy­dynge of the fyne for the incōueniēce that might folowe therupon. And after the opinion of many men there is no remedye in these cases in the chauncery for they saye that were the comon lawe in cases concernyng enheritaunce putteth the party fro any auerment for eschewynge of an inconuenience that might folowe of it amonge the people / that if the same inconuenience shulde folowe in the chauncery if the same matter might be pleaded there that no sub pena shulde lye in suche cases / & so it is in the cases before reherced. For as moch vexacion / delay / costes / & expences might gro­we to the party if he shulde be put to answere to suche auermentes in the chauncerye as if he were put to answere to thē at the comō lawe & therfore they thynke that no [Page 128] sub pena lyeth in the sayd cases ne in other lyke vnto them. Neuertheles I do nat ta­ke it that theyr opynion is that he y ^t bou­ghte the lande in this case may with good conscience holde the lande bycause he shall nat be compelled by no lawe to restore it / but that he is in conscience & by the law of reason bounde to restore it or otherwyse to recompence the partye so as he shalbe contented & I suppose veryly it is so if he wyll kepe his soule out of peryll & daūger. And after some men to these cases may be resē ­bled y ^e case of a fine with none clayme that is remembre before in the .xiiii. chapitre of this boke / where a mā knowyng another to haue right to certayne lande causeth a fine to be leuied therof with proclamacion and the other suffereth fyue yeres to passe without clayme in y ^t case he hath no remedye nether by comon law nor by sub pena / & that yet he that leuyed the fine is bounde to restore the lande in consciēce. And me thynketh I coulde right well agre that it shulde be so in this case / & that specially / by cause the partye hym selfe knoweth perfi­telye that the sayde colaterall warrantye was obteyned by couen and agaynst con­science.

☞ The fourth question of the doctour is of wrecke of the see ⸫ The .li. Chapitre.

I pray the let me now here thy mynde howe the lawe of Englā de concernynge goodes that be wrecked vpon the see may stande with consciēce for I am in great doute of it.

I pray the let me fyrste here thyne opiniō what thou thynkest therein.

The statute of Westmynstre the fyrst / that speketh of wrecke is / that if any mā dogge or catte come alyue to the lande out of the shyppe or barge / thatt it shall nat be iuged for wrecke so that if the partie to whome the goodes belonge come within a yere & a day & proue them to be his that he shall haue them or els that they shall remayne to the kynge. And me thynketh that the sayd statute standeth nat with conscience / for there is no lawfull cause why the party ought to forfet his goodes ne that the kīg or lordes ought to haue them for there is no cause of forfeture in the partye but ra­ther a cause of sorowe & heuines. And so that lawe semeth to adde sorowe vpon so­rowe [...] therfore doctours holde comonly [Page 129] that he that hath suche goodes is boūde to restitucion & that no custome may helpe for they say it is agaynst the cōmaūdemēt of god. Le .xix. Where it is cōmaūded that a man shall loue his neyghboure as hym selfe / & that they say he dothe nat that ta­keth away his neyghbours goodes / but they agre that if any mā haue cost & labour for the sauynge of suche goodes wrecked specially suche goodes as wolde perysshe if they laye styll in the water / as suger / pa­per / salte / mele / and suche other / that he ought to be alowed for his costes and la­bour but he must restore the goodes except he coulde nat saue them without puttinge his lyfe in ieoperdie for them / & than if he put his lyfe in suche ieoperdie & the owner by comon presumpcion had had no waye to haue saued them thā it is moste comōly holden that he may kepe the goodes in cō ­science / but of other goodes that wolde nat so lightly perysshe / but y ^t the owner might of comon presumpciō saue them hym selfe or that might be saued without any perill of lyfe / the takers of them be bounde to re­stitucion to the owner whether he come within the yere or after the yere. And me thīket this case is somwhat lyke to a case [Page] that I shall put / if there were a lawe & a custome in this realme or if it were ordey­ned by statute that if any aliē came throughe the realme in pylgrimage & dyed / that all his goodes shulde be forfet / that lawe shulde be agaynst consciēce for there is no cause reasonable why the sayde goodes shulde be forfet. And no more me thynketh there is of wrecke.

There be diuers cases where a mā shall lese his goo­des & no defaute in hym / as where beastes straye awaye fro a man & they be taken vp & proclaymed & the owner hath nat herde of them within the yere & the day / though he made sufficient diligence to haue herde of them / yet the goodes be forfet & no de­faute in hym / & so it is where a mā kylleth a nother with the sworde of I. at style the sworde shalbe forfet as a deodāde & yet no defaute is in the owner / & so me thynketh it may be in this case / & that sith the comō lawe before the sayd statute was that the goodes wrecked vpon the see shalbe forfet to the kyng that they be also forfet nowe after the statute excepte they be saued by folowynge the statute / for the lawe muste nedes reduce the propertye of all goodes to some man & whan the goodes be wrec­ked [Page 130] it semeth the property is in no mā but admitte that the property remayne still in the owner thā if the owner percase wolde neuer clayme than it shulde nat be knowē who ought to taken thē: & so mighte they be distroyed & no profite come of them / wherefore me thynketh it reasonable that the lawe shall appoynt who ought to haue thē / & that hath the lawe appoynted to the kyng as souerayn & hed ouer the people.

In the cases that thou haste put before of the stray & deodand there be consideracions why they be forfet / but it is nat so here / & me thynketh that in this case it were nat vnresonable that the law shulde suffre any man that wolde take thē to take & kepe them to the vse of y ^e owner / sauinge his reasonable expēces / & this me thynketh were more reasonable law than to pull the property out of the owner with oute cause. But if a man in the see cast his goodes out of the shyp as forsaken: there doctours holde that euery man may take them lawfully that wyll / but otherwyse it is as they say if he throw them out for fere that they shulde ouercharge the shyppe.

There is no suche law in this realme of goodes forsaken / for thoughe a [Page] man weyue the possession of his goodes & sayth he forsaketh than / yet by the lawe of the realme the property remayneth still in hym / & he may sease them after whā he wyll / & if any man in the meane tyme put the goodes in saufegarde so the vse of the owner: I thynke he dothe lawfully & that he shalbe alowed for his reasonable expen­ces in that behalfe as he shalbe of goodes foūde / but he shall haue no property in thē no more thā in goodes foūd. And I wolde agre that if a mā prescribe that if he fynde any goodes withī his maner y ^t he shulde haue thē as his owne: that y ^t prescripcion were voyd / for there is no cōsideraciō how that p̄scriptiō might haue a lawfull beginninge / but in this case me thīketh there is

what is that.

It is this. The kyng by the olde custome of the realme as lord of the narow see is boūde as it is sayd to scour y ^e see of pyrates & petyt robbers of the see. And so it is redde of the noble kyng saīt Edgare: y ^t he wolde twise in the yere scour the see of suche pyrattes / but I mean nat therby that y ^e kīg is boūd to cōduct his marchātes vpō y ^e see agaīst al outward enemies: but y ^t he is boūd onely to put away such pyratꝭ & petite robers [Page 131] And bycause y ^t can nat be done without greate charge it is nat vnreasonable if he haue suche goodes as be wrecked vpō the see towarde y ^t charge.

Vpon that reason I wyll take a respite tyll a no­ther tyme.

☞The .v. question of the Doctoure whether it stande with conscience to prohibit a Iury of meate & drinke tyll they be agreed. The .lii. Chapitre.

If one of the .xii. men of an enquest know the very trouth of his owne knowlege & instructeth his felowes thereof: & they wyll in no wyse giue credence to hym / and thereupon bycause meate and drynke is prohibit them: he is dryuen to that poynte that eyther he must assente to them and gyue the verdyte a­gaynst his owne knowlege & agaynste his owne conscience / or dye for lacke of meat / howe may that law than stāde with con­sciēce that will dryue an innocēt to that extremitie to be eyther forsworn or to be fa­misshed & dye for lacke of meat.

I take nat y ^e law of y ^e realm to be y ^t iury [Page] after they be sworne may nat eate nor drī ­ke tyll they be agreed of the verdicte: but trouth it is there is a maxime & an olde custome in the lawe that they shall nat ease nor drynke after they be sworne tyll they haue gyuen theyr verdit without the assente & [...]tece of the iustice / & that is ordeyned by the lawe for the eschewynge of diuers inconueniēces that might folow thervpō / & that specially if they shulde eate or drīke at the costes of the partyes / & therfore if they do the cōtrarye: it may be sayde in a­reste of the iugement / but with the assente of the Iustices they may bothe ere & drīke as it any of the Iurours fall sycke before they be agreed of theyr verdit to sore that he may nat comon of the verdit / thā by y ^e assent of the Iustices he may haue meate & drynke & also suche other thynges as be necessary for hym / and his felowes also at theyr owne costes or at the indifferent co­stes of the partyes if they so agre by the assent of the iustices may bothe eate & drīke & therfore if the case happē that thou now spekest of & that the Iuri can in no wyse agree in theyr verdit / & that appereth to y ^e Iustices by examinaciō: the Iustices may in that case suffre them haue bothe meate [Page 132] & drynke for a tyme to se wheter they wyll agre / & if they wil in no wyse agre: I thīke that than Iustices may set suche order in the matter as shall seme to them by theyr discrecion to stande with reason & conscien­ce by awardynge of a newe enqueste & by settinge sines vpon thē that they shal finde in defaute or otherwise as they shall thīke best by theyr discrecion lyke as they maye do if one of the Iury dye before verdit or if any other lyke casualties fall in y ^t behalfe But what the iustices ought to do in this case that thou haste put by theyr discreciō: I wyll nat tret of at this tyme.

☞ The .vi. question of the Doctour whe­ther the colours that be gyuē at the comon lawe in assises / accions of trespas / & diuers other accions stande with conscience bycause they be moste comon­ly feyned & be nat trew. The .liii. Chapitre.

I pray the let me here thy mynde to what intente suche colors be gyuen / & syth they be comonly vntrue: how they may stande mith conscience

The cause why suche colours be gyuen is this / there is a maxime and a grounde in the lawe of Englande: that if the defendant or tenant in any acciō plede a plee that amoūteth to the generall issue that he shalbe compelled to take the gene­rall issue / & if he will nat / he shalbe condēpned for lacke of answere / & the generall is­sue in assise is / that he that is named the disseasoure hath done no wronge nor no disseason. And in a writte of entre in the nature of assise the general issue is that he disseased hym nat / & in an acciō of trespas that he is nat gyltye & so euery acciō hath his generall issue assigned by the lawe / & the tenaunt muste of necessitie eyther take that generall issue / or plede some plee in abatement of the writt / to the iurisdicciō / to the persone or elles some barre or some matter by way of conclusion. And therfore if Iohan at style infeffe Henry herte of lā ­de & a straunger bryngeth an assise agaīst the sayd Henry herte for that lande whose title he knoweth nat. In thꝭ case if he shuld be cōpelled to plede to the poynt of the as­sise / that is to say / y ^t he hath done no wrō ­ge ne no disseason the matter shulde be put in the mouthes of .xii. laye men whiche be [Page 133] nat lerned in the lawe / & therefore better it is that the law be so ordered that it be put in the determinacion of the iuges than of lay men. And if the sayd Henry hert in the case before reherced wolde plede in barre of the assise that Iohan at style was seased & infessed hym / byforce whereof he entred & asked iugement if that assise shulde lye a­gaynste hym that ple were nat good for it amoūteth but to the general issue & there­fore he shalbe compelled to take the gene­rall issue or els the assise shalbe awarded agaynst hī for lacke of answere. And there­fore to the intente the matter may be she­wed & pleded before the iuges rather than before Iury / the tenantes vse to gyue the pleyntyfe a coloure / that is to say a colour of accion wherby it shall appere y ^t it were hurtfull to the tenant to put that matter that he pleadeth to the iugemēt of .xii. mē / & the moost eomon coloure that is vsed in suche case is this / whan he hath pleded y ^t suche a mā enfeffed hym as before apereth it is vsed that he shall plede ferther & saye that the pleyntyfe claming in by a coloure of a dede of feffemēt made by y ^e sayd feffo ^r before the feffemente made to hym / where nought passed by y ^e dede ētred / vpō whome [Page] he entred & asketh iugemente if the assiselye agaynste hym. In this case bycause it appereth to be a dout to vnlerned mē whether the lande passe by the dede without lyuerey or nat / therfore the lawe suffreth the tenāt to haue that speciall matter to bring the matter to the determinacion of the Iuges. And in suche case the Iuges may nat put the tenant fro the plee / for they knowe nat as Iuges but that it is trewe / & so if any defaut be it is in the tenaunt & nat in the court. And though the trouthe be that there were no suche dede of feoffemēt made to the playntyfe as the tenaunt pleadeth / yet me thynketh it is no defaute in the te­nant for he dothe it to a good intēt as be­fore appereth.

If the tenante knowe that the feoffour made no suche de­de of feoffement to the pleyntyfe / thā there is a defaut in the tenant to plede it / for he wittingly sayth agaynste the trouthe / & it is holden by all doctours that euery lye is an offence more or lesse / for if it be of mali­ce & to the hurte of his neyghbour / than it is called (Mendaciū permiciosum) & that is dedely synne. And if it be in sporte & to the hurte of no man / nor of custome vsed / ne of pleasure that he hath in lyenge / than [Page 134] it is veniall synne / & is called in latine mē ­dacium iocosum. And if it be to the profite of his neyghbour & to the hurte of no man than it is also veniall synne / & is called in latine mendacium officiosum. And though it be the leeste of tho thre yet it is a veniall synne & wolde be eschewed.

Thoughe the mydwyfes of Egipte lyed whan they had reserued the male chyldrē of y ^e Ebrewes / saīg to the kyng Pharao / that the Ebrewes had women that were connyng in the same crafte whiche or they came had reserued the chyldren alyue where in dede they thēselfe of pytye & of drede of god reserued them. yet saint Ierome expoūdeth the texte folowyng whiche sayth that our lorde therfore gaue thē houses y ^t it is to be vnderstande that he gaue them spirituall houses & that they had therfore eternall rewarde / & if they synned by that lye all though it were but veniall / yet I cā nat se howe they shulde haue therfore eter­nall rewarde. And also if a man intending to slee a nother aske me where that man / is it nat better for me to lye & to say I can nat tell where he is though I know it / thā to shewe where he is whereupon murder shulde folowe.

The dede that [Page] the mydwyfes of Egipte dyd in sauing y ^t chyldren was meritorious & deserued re­warde euerlastinge (if they beleued in god) & dyd good dedes beside as it is to presume they dyd / whan they for the loue of god re­fused the dethe of the Innocentes / & than though they made a lye after whiche was but veniall synne that coulde nat take fro them theyr rewarde / for a veniall synne dothe nat vtterly extincte charitie but let­teth the feruour therof: & therfore it maye well stande with the wordes of saynt Ierome that they had for theyr good dede eter­nall houses / & yet the lye that they made to be a veniall synne / but neuertheles if suche a lye that is of it selfe but veniall be affirmed with an othe / it is alwaye mortall if he know it befalse that he swereth. And as to the other question it is nat lyke to this question that we haue in hande as me semeth / for somtyme a man for eschewing of the greater euyll may do a lesse euyll / & than the lesse is no offence in hym / & so it is in the case that thou hast put wherin by­cause it is lesse offēce to say he wotteth nat where he is though he knowe where he is than it is to shewe where he is / wherupon murdre shulde folowe / it is therfore no synne [Page 135] to saye he wotteth nat where he is / for euery mā is bounde to loue his neyghbour & if he shewe in this case where he is kno­wynge his dethe shuld folowe therupon it semeth that he loued hym nat / ne that he dyd nat to hī as he wolde be done to / but ī the case that we be in here / there is no su­che synne eschewed / for though the partie pleded the generall issue the iury might finde the trouth in euery thyng / & therfore in that he sayth that the pleyntyfe claymīge in by the colour of a dede of feffement where nought passed entred. &c̄. knowynge y ^t there was no suche feffemēt it was a lye in hym & a veniall synne as me thynketh. And euery mā is boundē to suffre a deedly synne in his neyghbour / rather than a ve­niall synne in hīselfe.

Though the Iury vpō the generall issue may finde the trouth as thou sayste / yet it is moche more daungerous to the Iury to enquere of many poītꝭ thā to enquere onely of one poīt. And for as moch as our lord hath gyuē a cōmaūdemēt to euery mā vpō hꝭ ney­ghbour / therfore euery mā is boūd to forse as moch as ī hī is y ^t by hī no occasiō of of­fēce come to hꝭ neyghbo ^r. And for y ^e same cause / y ^e law hath ordeined diuers maximꝭ [Page] & principles whereby issues in the kynges court may be ioyned vpon one poynte in certayne as nyghe as may be / & nat gene­raltye / lest offence might folowe therupon agaynst god / & a hurte also vnto the Iuri / wherfore it semeth y ^t he loueth nat in hys neyghboure as hym selfe ne that he dothe nat as he wolde be done to that offereth suche daunger to his neyghbour where he may well & conueniently kepe it fro hym if he will folowe the order of the lawe / & it semeth that he putteth hym selfe wilfully an ieoperdye that dothe it / & it is written Ec­clesiastici .iii. Qui amat periculum in illo peribit / that is to say / he that loueth peryl shall perysshe in it / and he that putteth his neyghbour in peryll to offende putteth hī selfe ī the same / & so shuld he do me semeth that wolde wilfully take the generall issue where he mighte cōueniētly haue the spe­ciall matter / & ferthermore it is none offēce in princes & rulers to suffre cōtractes and byēg & sellīg in markettes / fayres / though bothe periure & disceyte will folowe there­vpon / bycause suche contractes be neces­sarye for the comon welthe / so it semeth lykewyse that there is no defaute in the partye that pleadeth suche a special mater [Page 136] to auoyde fro his neyghbour the daunger of periurie / ne yet in the court though they enduce hym to it / as they do somtyme for the intent before reherced / & in lykewyse some wyll say that if the rulers of Cytyes & communaltyes somtyme for the punis­shement of felons / murderers / & such other offenders wyll to the intēte they wolde haue thē to cōfesse the trouth say to thē that be suspected that they be informed in such certayne defautes or misdemeanours ī the offenders & that they do to the intente to haue thē to confesse the truth that though they were nat so informed that yet it no offence to saye they were so īformed bycause they do it for the comō welthe / for if offen­ders were suffered to go vnpunisshed y ^e co­mon welth wolde soone decay & vtterly perysshe.

I wyll take aduisemēt vpō the reason in this matter tyll an other season & I wyll now aske the another que­stion somwhat lyke vnto this. I praye the let me here thy mynde therein.

Let me here thy question and I shall with good wyll say as I thynke therein.

¶Addition. ☞The .vii. question of the Doctoure concerneth the pleadynge in assise whereby the tenauntes vse sō ­tyme to pleade in such maner that they shall cō ­fesse no ouster ⸫ The .liiii. Chapitre.

It is comonly vsed as I haue herde say that whan the tenāt in assise pleadeth that a straūge our was seased & enfeoffede hym & gyueth the plaītyfe a colour in suche maner as before appereth in the .liii. chapitre / that the te­nant many tymes whan he hath pleaded thus: & the pleyntyfe claymyng in by a co­lour of a dede of feoffemente made by the sayd straūgeour / where nought passed by the dede entred / & that than they vse to say ferther vpon whome. A. B. entred vpon whome the tenant entred / where in dede y ^e sayd. A. B. neuer entred / ne haplye there was neuer no suche man. Howe can thys pleadynge be excused of an vntruthe / and what reasonable cause can be why suche a [Page 137] pledynge shulde be suffred agaynste the trouthe.

The cause why that maner of pleading is suffred is this. If y ^e tenaūt by his pleadyng cōfessed an imme­diate entrye vpō the plaītyfe: or an imme­diate putting out of the playntyfe / whiche in frenche is called an oustre / thā if the title were after founde for the playntyfe: the tenaūt by his confession were attayned of the disseason. And bycause it maye be that though the playntyfe haue good title to the lande: that yet the tenaūt is no dissea­sour. Therfore the tenaūtes vse many ty­mes to pleade in suche maner as thou hast sayd before to saue them selfe fro cōfessing of an oustre / & so if there be any defaut it is nat in the courte ne in the lawe / for they know nat the trouth therin tyll it be tried & me thynketh also that there is in this case right litle defaut or none in y ^e tenāt nor in his coūsell / specially if the coūcell know that the tenant is no dissesour. But as to that poynt I praye the that lyke as thou haste takē a respite to be aduysed or that thou shewe thy ful mynde in the questiō of a colour gyuē in assise whereof menciō is made in the sayde .liii. chapitre / that I in lykewyse maye haue a lyke respyte in [Page] this case tyll other tyme to be aduised / & than I shall with good wyll shewe the my full mynde therin.

I am con­tent it be as thou sayest but I pray the y ^t I may yet adde a nother question to the two questiōs before rehersed of y ^e colours in assise & fele thy mynde therein / bycause that sowneth moche to the same effecte y ^t the other do (that is to saye) to proue that there be diuers thynges suffred in the law to be pleaded that be agaynst the trouthe / & I pray the let me hereafter knowe thy mynde in all thre questiōs / & thou shal thā with a good wyll knowe myne.

I praye the shewe me the case that thou spekest of.

If a mā stele an horse secretely in the nighte: It is vsed that there vpon he shalbe Indyted at the kynges suyte / & it is vsed that in that In­dytement it shalbe supposed that he suche a daye & place with force & armes / that is to saye / with staues / swordes / & knyues. &c̄ felonouslye stele the horse agaynst the kin­ges peace / & that fourme muste be kepte in euery Indytement / though the fellon had neyther sworde nor other weapō with hī: but that he came secretely without weapō Howe can it therfore be excused but that [Page 138] therein is an vntrouthe.

It is nat alleged in the Indytement by matter in dede that he had suche weapon / for the fourme of an Indytement is this. In­quiratur pro domino Rege si. A. tali die & Anno apud talem locum vi & armis videlicet gladus &c̄. talem equam talis hominis felonice cepit. &c̄. And than the twelue mē be onely charged with the effect of the byl. That is to saye / whether he be gylty of y ^e felonye or nat / & nat whether he be gyltye vnder suche maner and fourme as the bylle specifieth or nat / and so whan they saye (billavera) they saye trewe as they take the effecte of the bylle to be. And therefore if there were false latine in the byll of Indictement: & the Iury sayth (billa vera) yet theyr verdit is trewe / for theyr verdite stretcheth nat to the trouth or fals hede of the latine: but to the felonye / ne to the fourme of the wordes: but to the effect of the mater / & that is to enquyre whether there were any suche felonye done by that person or nat / & though the byll vary from the day / fro the yere / & also from the place where the felony was done in / so it vary nat fro the Shyre y ^t the felony was done in. And the Iury saythe (billa vera) they [Page] haue gyuē a trew verdite / for they are boū de by theyr othe to gyue theyr verdite ac­cordinge to the effecte of the byll: & nat ac­cordinge to the fourme of the byll. And so is he that maketh auow boūde likewyse to that that by the law is the effecte of his a­uowe / & nat onely to the wordes of his a­uow. As if a man auowneuer to eat whyte meate / yet in tyme of extreme necessitie he may eate whyte meat rather thā dye & nat breke his auow thoughe he affermed it with an othe / for by the effecte of his ad­uowe: extreme necessitye was excepted: though it were nat expressely excepted in the wordes of the auowe / and so lykewyse though y ^e wordes of the byl be to enquire whether suche a mā suche a daye & yere & in suche a place dyd suche a felony / yet the effecte of the byll is to enquyre whether he dyd the felony withī the shyre or no / & therfore the iustices before whome suche indi­temētes be takē: most comōly enfourme y ^e Iury that they are boūde to regarde the effecte of the byll & nat the fourme. And therfore there is no vntrouthe ī this case: neyther in hym that made the byll: ne yet ī the iury as me semeth.

But if the partye y ^t ought the horse bryng an ac­cion [Page 139] of trespas & declareth that the defen­daunt toke the horse with force & armes: where he toke hī without force & armes.

Howe may the playntyfe there be excused of an vntruthe.

And if the plaī ­tyfe surmit an vntruthe / what is that to y ^e court or to the law / for they must beleue y ^e playntyfe tyll that that he sayth be denied by the defendant. And yet as this case is: there is no vntruth in the playntyfe to say he toke the horse with force & armes thou­ghe he came neuer so secretely & withoute weapon / for euery trespas is in the lawe done with force & armes / so that if he be attaīted & foūde gyltie of y ^e trespas: he is at taynted of the force & armes. And syth the lawe adiugeth euery trespasse to be done with force: therefore the playntyfe saythe trewely that he toke hym with force as the lawe meneth to be force. For thoughe he toke the horse as a fellon: yet vpon that felonouse takynge: the owner may take an accion of trespasse & if he wyll for eue­ry fellony is a trespasse and more. And so I haue shewed the some parte of my mynde to proue that in those cases there is no vntrouthe neyther in the parties / neyther in the Iurye / nor in the lawe. [Page] lawe. Neuerthelesse at a better leasure I wyll shewe the my mynde more fully therī with good wyl as thou haste promysed me to do in the cases of the colours of the assise & of the oustre that be before rehersed.

☞ The .viii. question of the Doctour whether the statute of .xlv. of Ed­warde the thyrde of Silua ce­dua stande with cōscience. The .lv. Chapitre.

In the .xlv. yere of the reygne of kynge Edwarde the thyrde / it was enacted that a prohibiciō shuld lye where a man is empleded in the courte cristien for dismes of woode of the age of. xx. yere or aboue by the name of Silua cedua / howe may that statute stande with conscience that is so directely agaynst the lybertye of the churche & that is made of suche thynges as the parlyament had no auctorite to make any lawe of.

It appereth in the sayde statute that it is enacted that a prohibicion shulde lye in y ^t case as it had vsed to do before that tyme & if the prohibicion lay by a prescripciō be­fore that statute why is nat thā the statu­te [Page 140] good as a confirmacion of that prescripcion.

If there were suche a prescripcion before that statute y ^t prescripcion was voyde / for it prohibiteth the payment of tythes of trees of the age of .xx. yere or aboue / & payenge of tythes is groun­ded as well vpon the lawe of god as vpon the lawe of reason & agaynste tho lawes liet no prescripcion as it is holden moste comōly by all mē.

That there was suche a prescripcion before the sayde statute / & that if a man before the sayd sta­tute had ben suyd in the spirituall courte for tythes of wode of the age of .xx. yere or aboue that a prohibicion lay / appereth in the sayd statute / & it can nat be thought y ^t a statute that is made by authoritie of the hole realme / as well of the kynge & of the lordes spirituall & tēporall as of all the co­mons / will recyte a thynge agaynste the trouth. And ferthermore I can nat se how it can be grounded by the lawe of god or by the lawe of reason that he tenthe parte shulde be payed for tythe & none other por­cion but that but I thynke that it be groū ded vpō the law of reason that a mā shulde gyue some reasonable porcion of his goo­des temporall to them that myninstre to [Page] hym thynges spirituall / for euery man is boūde to honour god of his proper subst [...] ­ce / & the gyuyng of suche porcion hath nat ben onely vsed amonge faythfull people / but also amōg vnfaythfull people as it appereth Genesis .xlvii. where corne was gyuē to the prestes in Egipte y ^e or comō barnes. And saint Poule in his epistles affer­meth the same in many places / as in his fyrste epistle to the Corinthies the .ix. cha­pitre where he saythe he that worketh in the churche shall eate of that y ^t belongeth to the churche. And in this epistle to the Galathes the .vi. chapitre he sayth / let hī that is instructed in spirituall thynges de­parte of his goodes to hym that īstructed hym. And sainte Luke in the .x. chapitre sayth that the workmā is worthy to haue his hyre / all whiche saynges may right cō ueniently be taken & applied to his purpo­se that spiritual men whiche ministre to y ^e people spirituall thynges / ought for theyr ministracion to haue a competent lyuinge of them that they minister to. But y ^t the x. parte shulde be assigned for suche a por­ciō & neyther more nor lesse. I can nat perceyue that y ^t shulde be groūded by the law of reason nor immediatly by y ^e law of god [Page 141] for before the law writtē there was no certayne porciō assigned for the spirituall ministres neyther the .x. parte nor the .xii. parte vnto the tyme of Iacob / for it appe­reth Gene. xxviii. that Iacob auowed to paye Dismes whiche was amonge the Iewes for the .x. parte / if our lorde prospered hym in his iourney / & if the .x. parte had bē his dutye before that auowe / it had ben in vayne to haue auowed it / and so it had [...] it had ben groūded by the law of reason / & as to that that is spokē in the Euangelistes & in the newe law of tythes / it belongeth ra­ther to the gyuinge of tythes in the tyme of the olde lawe than of the newe lawe as appereth Mathe .xxiii. & Lu. xi. where our lorde speketh to the phariseis sayth / wo be to you phariseis that sythe mynies / rewe / & herbes / & forgette the Iugement and the charitie of god / these it behoueth you to do and the other nat to omitte / that is to say / it behoueth you to do iustice and charite of god an nat to omitte payenge of tythes though it be of smale thynges as of myn­tes / rewe / herbes / & suche other. And also that y ^t the pharisei saythe Luce .xvii. I paye my tythes of all that I haue / is to be ferred too the olde lawe nat to the tyme [Page] to the tyme of the newe lawe. Therfore as I take it that the paynge of tythes or of a certayne porcion to spirituall mē for theyr spirituall ministracion to the people / hath ben grounded in diuers maners. Fyrste before the lawe written a certayne porcion sufficient for the spirituall ministers was due to them by the lawe of nature / whiche after them that be lerned in the lawe of y ^e realme is called the lawe of reason / & that porcion is due by all lawes & in the lawe written the Iewes were bounde to gyue the .x. parte to theyr prestes as well by the sayde auowe of Iacob as by the lawe of god in the olde testamente called the Iudicials. And in the newe law the payenge of the tenth parte is by a lawe that is made by the churche. And the reason wherfore the tēthe parte was ordeyned by the chur­che to be payde for the tythe was this.

There is no cause why y ^e people of y ^e new lawe ought to paye lesse to the ministers of the newe lawe / than the people of the olde testament gaue to the ministers of the olde testamente / For the people of the newe lawe be bounde to greater thynges / than the people of the olde law were as it appereth. Mathe .v. where it is sayde / but [Page 142] your good workes haboūde aboue the workes of the scribes & the pharisees / ye maye nat entre in to the kyngdome of heuen.

And y ^e sacrifice of the olde law was nat so honourable as the sacrifice of the new law is / for the sacrifice of the olde lawe was onely the figure / & the sacrifice of the new lawe is the thynge that is figured / y ^t was the shadowe / this is the trouth. And ther­fore the churche vpon that reasonable cō ­sideracion ordeyned that the .x. parte shuld be payde for the sustenaunce of the mini­sters in the newe lawe as it was for the sustenaunce of the ministers in the olde law / & so that lawe with a cause may be encreased or minisshed to more porcion or to lesse as shalbe necessary for them.

It appereth Genesis .xiiii. that Abraham gaue to Melchisedech dismes & that is ta­ken to be the .x. parte & that was longe be­fore the lawe writtē / & therfore it is to suppose that he dyd that by the lawe of god.

It appereth nat by any scripture that he dyde that by the commaundement of god / ne by any reuelaciō. And therfore it is rather to suppose that he dyd parte of duyte & parte of his owne fre wyl / for in that he gaue the dismes / as a resonable [Page] porciō for the sustenaūce of Melchisedech & his ministers / he dyd it by commaunde­mēt of the lawe of reason as before appe­reth / but that gaue the .x. parte that was of his free wyll / & bycause he thought it sufficient & resonable but if he had thoughte the .xii. parte or the .xiii. parte had suffised might haue gyuen it & that with good conscience. And so I suppose that in the newe law the gyuinge of the .x. parte is by a law of the churche & nat by the law of god / oneles it be taken that the lawe of the church is the lawe of god / as it is somtyme taken to be / but nat appropriatly nor immediatli for that is takē appropriatly to be the law of god / that is conteyned in scripture that is to say: in the olde testamēt or in the new

It is somwhat daungerous to saye that tythes be grounded onely vpō the lawe of the churche / for some men as it is sayd say that mānes law byndeth nat ī conscience / & so they might happen to take a boldnes therby to denye theyr tythes.

I truste there be none of y ^t opinion / & if there be it is greate [...]ytye. And neuertheles they may be cōpelled in that case by the law of the churche to pay their tythes as well as they shuld be if payenge [Page 143] of tythes were grounded meerely vpō the lawe of god.

I thynke well it be as thou sayste & therfore I holde me cō ­tended therin. But I praye the shewe me thy mynde in this question / if a hole coun­trey prescribe to pay no tythes for corne or hey nor suche other / whether thou thynke that that prescripcion is good.

That question dependeth moche vpon y ^t that is sayde before / for if payenge of the .x. parte be by the lawe of reason or by the lawe of god / than the prescripcion is voyde but if it be by the lawe of man / than it is a good prescripcion so that the ministers haue a syfficient porcion beside.

Iohā gerson whiche was a doctour of di­uinite in a treatice that he named regule morales: sayth that dismes be payd to pre­stes by the lawe of god.

The wordes that he speketh there of y ^t matter be these (Solutio decima (rum) sacerdotibꝰ est de iure diuino quarenꝰ ide sustentētur: sed quotā hāc vel illā assignare: aut ī alios redditus cōmutare positiui iurꝭ existit). That is thus moche to say / the payēge of dismes to prestes is of the lawe of god / that they maye thereby be susteyned / but to assigne thꝭ porciō or that / or to chaūge it to other [Page] rentes / that is by the lawe positiue / & if it shulde be taken that by that worde: deci­marum: whiche in englysshe is called dys­mes or tythes / that he ment the tent parte & that that .x. parte shulde be payde for ty­the by the lawe of god / than is the sentēce that foloweth after agaynst that sayenge / for as it appereth aboue the text sayth af­terwarde thus / but to assigne this porcion or that or to / chaunge it in to other rentes belongeth to the lawe positiue / that is to the law of man / & if the .x. parte were assigned by god / than may nat a lesse parte be assigned by the lawe of man for that shuld be contrary to the lawe of god / & so it shuld be voyde. And me thynketh that it is nat likely that so famous a clerke wolde speke any sentence contrary to the law of god or contrary to that he had spoken before / & to proue that he mente nat by that terme: decime: that dismes shulde alway be takē for the tenth parte / yet appereth in the .iiii. parte of his workes in the .xxxii. title: litte ray / where he sayth thus (Nō vocatur porcio curatis debita propterea: decime: eo qd semper sit decima pars immo est interdū vicesima aut tricesima). That is to say y ^e porcion due to curates / is nat therfore cal­led [Page 144] dismes for that it is alway the .x. parte for somtyme it is the .xx. or the .xxx. parte / & so it appareth that by this worde decimarum: he mente in the texte before reherced a certayne porcion and nat precisely the .x. parte / & that that porcion shulde be payde to prestes by the lawe of god to susteyne them with / takynge as it semeth the lawe of reason in that sayēge for the law of god as it maye one way be well & conueniētly taken: bycause the lawe of reason is gyuen to euery reasonable creature by god. And than it foloweth pursueantlye that it belō geth to the lawe of mā / to assigne this porcion or that as necessite shall requyre for theyr sustenaunce / & than his sayenge a­greeth well to that that is sayde before / y ^t is to saye / that a certayne porcion is due for prestes for theyr spirituall ministraciō by the law of reason. And than it wolde folowe therupon that if it were ordeyned for a lawe y ^t al payēge of tythes shuld fro hēs­forth cesse / & that euery curate shulde haue assigned to hym suche certayne porcion of lande rent or annuite as shulde be sufficiēt for hym & for suche ministers as shulde be necessary to be vnder hym accordynge to the nombre of the people there / or y ^t euery [Page] parisshene or housholder shulde gyue a cer­tayne of money to that vse: I suppose the lawe were good / & that was the meanyng of Iohā gerson as it semeth in his wordes before rehersed / where he saith / but to chaū ge tythes in to other rentes is by the law positiue / that is to say by the law of man. And so me thynketh that if a hole coūtrey prescribe to be quyte of tythes of corne or gres so that the spirituall ministers haue a sufficient porcion beside to lyue vpon / y ^t it is a good prescripcion / & that they shulde nat offende / that in suche coūtreys payde no tythes / for it were harde to say that all the men of italie or of the cest parties be dampned bycause they pay no tythes but a certayne porciō after the custome therfore certayne it is to pay suche a certayn porciō as well they as all other be boūde: if y ^e churche aske it / any custome nat withstanding / but if y ^e church aske it nat it semeth y ^t by that nat asking y ^e church remitteth it & an exāple therof we may take of y ^e apostle Poule y ^t though he might haue taken his necessari liuing of thē that he preched to / yet he toke it nat / & neuertheles they y ^t gaue it him nat dyd nat offēde bycause he dyd nat aske it / but if one mā ī a towne wolde [Page 145] p̄scribe to be discharged of tythes of corne & gres / me thinketh the p̄scripciō is nat good / oneles he cā proue that he recōpen­seth it in another thyng / for it semeth nat reasonable that he shuld paye lesse for hys tythes thā his neyghbours do / seyng that the spirituall ministers are boūde to take as moche diligence for hym as they be for any other of y ^e parysshe / wherfore it might stāde with reason that he shuld be cōpelled to pay his tythes as his neyghbours do / oneles he cā proue that he payeth in recō ­pēce therof more thā the .x. ꝑte in another thinge. Neuertheles I leue that mater to y ^e iugemēt of other / & thā for a ferther profe that the said p̄scripciō of nat payēge ty­thes for trees of .xx. yere & aboue / thoughe it were nat good of corne & gres shulde be good / some make this reasō / they say that there is no tythe but it is eyther a prediall tythe a ꝑsonal tythe / or a mixt tithe / & they say y ^t if a tythe shuld be payd of trees whā they be so sold: that y ^t tythe were nat a p̄ ­dial tythe / for y ^e p̄dial tythe of trees is of such trees as brīg forth frutes & ēcrease ye rely / as apple trees / nut trees / pere trees / & such other wherof y ^e p̄dial tythe is the ap­ples / nutꝭ / perꝭ & such other frutꝭ as com of [Page] them yerely & whan the frutes be tithed: if the owner after fell the trees / there is no tythe due therby / for two tythes may nat be payed of one thyng / & of these tythes (y ^t is to saye) of prediall tythes was the com­maundement gyuen in the olde law to the Iewes / as appereth Leuitici. xxvii. where it is sayd (Omnes decime terre: siue de po­mis arborum: siue de frugibus: domini sūt: & illi sanctificantur) that is to saye / all ty­thes of the erthe eyther of apples / of trees / or of graines be our lordes / & to hym they be sanctified / and though the said lawe spekyth onely of apples / yet yt was vnderstā de of all maner of frutes. And bycause yt sayth that all the tythes of the erthe be our lordes: therfore calues / lambes / & such other muste also be tythed / & they be called by some men prediall tythes / that is saye / tythes that come of the grounde / howe be it thy call them onely predialles mediate / & they be the fame tythes that in this writtyng be called mixt tythes / & the other ty­thes (that is to saye) tythes of apples and corne & suche other: be called predialles immediate / for they come immediatly of the grounde / & so do nat mixte tythes as eui­dently appereth.

But what [Page 146] thinkest thou shalbe the prediall tythes of asshes / elmes / salowes / alders / & such other trees as bere no frutes / wherof any profite cometh / why shall nat the .x. parte of the selfe thynge be the tythe therof if they be cut downe as well as it is of corne & gras.

For I thynke that there is to that intēte great diuersite betwene corn gres / & trees / & that for diuers considera­cions wherof one is this. The propertie of corne & gras is nat to growe ouer one yere & if it do: it wyll perysshe & come to nought & so the cuttynge downe of it: is the perfecciō & preseruaciō therof / & the special cause that any encrease foloweth of the same.

And therfore the .x. parte of that encrease shalbe payde as a predyall tythe / & there no deduccion shalbe made for the charges of it / & so it is of shepe & beastes that muste be taken & kylled in tyme / for els they may perysshe & come to nought. But whā trees be felled: that fellynge is nat the perfecciō of the trees / ne it causeth nat them to en­crease but to decay / for most comonly the trees wolde be better if they might growe styll. And therfore vpō that y ^t is the cause of the decaye & distrucciō of them it semeth there can no prediall tythe ryse / & some mē [Page] say that this was the cause why our lorde in the said chapiter of Leuitici .xxvii. gaue no cōmandement to tythe the trees but y ^e frutes of the trees onely.

It appereth in Paralape .xxxi. that the Ie­wes in the tyme of the kyng Ezechias of­fered in the temple all thynges that the groude brought forth / & that was trees as well as corne & gres.

It appe­reth nat that they dyd that by the cōmādement of god & therfore it is lyke that they dyd it of theyr owne deuocion & of a fa­uour that they had aboue theyr dutye to the repayrynge of the temple whiche the kynge Ezechias had thē cōmanded to be repayred / & so that [...] proueth nothynge that tythe shuld be payde for trees / & therefore they say ferther that trouth it is that if a man to the entent he wolde pay no ty­the: wolde wilfully suffer his corne & gres to stande still & to perisshe / he shuld offende cōsciēce therby / but thoughe he suffer his trees to stāde still cōtinually withoute fel­linge bycause he thīketh a tythe wold be asked if he felled thē (so y ^t he do it nat of an euill will of the curate) he offēdeth nat ī cō sciēce / ne he is nat boūde to restituciō therfore as he shuld be if it were of corne & gres [Page 147] as before apereth / & another diuersiti is thꝭ In this case of rythe worde / the tythe therof wolde serue so litle so that purpose that tythes be payd for: that it is nat likely y ^t they y ^t made y ^e law for paymēt of tythes entēded that any fythe shuld be payde for trees or wode / for the spirituall ministers muste of necessitie spende dayly & wekely / & therfore the tythe of trees or wode that cometh so seldō wold serue so litell to the purpose that it shuld be payd for that it wolde nat helpe thē in theyr necessite so y ^t if they shulde be driuen to truste therto though it might helpe hī in whose time it shulde happē to fall yet it shuld deceyue the that trusted to it in the meane tyme: & also shulde leue the parysshe without any to minister to thē.

I wolde well agre that for trees that bere frute there shuld no predial tythe be payd whā they be solde / for the prediall tythe of thē is the frutes that come of thē & so there cā nat be two p̄diales of one thīge / as thou hast sayd. But of other tres that bere no frute me thīketh that a p̄dial tythe shuld be payd whā they be solde / & so it appereth that there ought to be by y ^e cō stituciō prouinciall made by the reuerente father in god Robertte whyncelse late [Page] archebisshope of Cauntorbury where it is sayd & declared that (silua cedua) is or eue­ry kynde of trees that haue beyng in that that they shuld be curte or that be able to be cutte wherof we wyll sayth he that the possessoure of the sayd woodes be cōpelled by the censures of the churche to pay to y ^e parysshe churche / or mother church the tythe as a reall or prediall tythe & so by ver­tue of that constitucion prouinciall a pre­diall tythe muste be payde of suche trees as haue no frute / for I wolde well agre that the sayd constitucion prouinciall stretched nat to trees that bere frutes though the wordes be general for all trees as before appereth.

I take nat the reason why a prediall tythe shulde nat be payde for trees y ^t bere frute to be bycause two prediall tythes can nat be payde for one thynge / for whan the tythe is payd of lambes yet shall tythe be payde of wolle of the same shepe / for it is payde for a nother increase / & so it might be sayd that the frut of a tree is one encrease & the fellyng a no­ther / but I take the cause to be for the two causes byfore reherced & also for as moche as the fellynge is nat properly an increase of the trees but a distrucciō of the trees as [Page 148] it is sayd before. And ferther I wolde here thy mynde vpon the said cōstitucion pro­uincial whiche wyll that tythe shulde be payde for trees by the possessoures of the woode that if the possessour sell the woode for .C. li. & gyue the byer a certayne tyme to sell it in / what tythe shall the possessour paye as longe as the woode standeth.

I thynke none for the pre­diall tythe cometh nat tyl the woode be felled & a personall tythe he can nat pay / no more than if a man plucke downe his how se and selleth it / or if he sell all his lande / in whiche cases I agre well he shall paye no tythe neyther prediall nor personall.

And than I put case that the byer selleth the woode agayne as it is stā ­dyng vpon the groūde to a nother for .cc. li. what tythe shalbe payde than.

Than the fyrste byer shall pay tythe of the surplusage that he taketh ouer the .C. li. that he payde as a personall tythe.

And than if the seconde byer after that cut it downe & sell it whan it is cut downe for lesse than he payd / what ty­the shall than be payde.

Thā shall he that felleth them paythe tythe for the trees as a predial tythe.

[Page]I can nat se howe that ca be for he nether hath the trees that the predial tithe shulde be payd for if any oughte to be payde / nor he is nat possessour of the groūd where the trees grow: & therfore if any predial tythe shuld be payd it shuld be payd eyther by y ^e fyrst possessour by reason of the wordes of the sayd constituciō prouincial whiche be y ^t the tythe shalbe payd by the possessoure of the wood / or by the last byer bycause he hath the trees that shuld be tythed & by y ^e fyrst possessour the tythe can nat be payde as a p̄dial for he cut nat thē downe ne they were nat cut downe vpon his bargayne / & by the laste byer it cā nat be payde neyther as a predial tythe for the sayd constitucion sayth y ^t the possessours of the wodes shuld be cōpelled to pay it. And therfore I suppose that the trouth is that in that case no [...] the shalbe payde / for as to the last seller he shall pay no personall tithe for he gayned nothyng as it appereth before / & no p̄diall tithe shalbe payd / for it shuld be agaynst y ^e sayd prescripciō / & also the cuttinge downe is the distruccion of trees & nat theyr p̄ser­uacion as is sayd before.

Thā takest thou the sayd constitucion to be of smale effect as it semeth

I take [Page 149] it to be of this effect that of woode aboue .xx. yere it bindeth nat bycause it is cōtrari to the comō law & to the sayd prescripcion that stādeth good in the comō law / but of wood vnder .xx. yere wherof tithe hath bē accustomed to be payd: y ^e cōstituciō is nat agaynst the sayd p̄scripcion bycause patēg of tythe vnder .xx. yere is nat prohibit but suffred by the sayd statute howe be it some say that by the very rigour of the comon lawe tithes shuld nat be payd for wood vnder .xx. yere no more than for aboue .xx. ye­re & that a ꝓhibiciō in that case lieth by y ^e comon lawe / neuerthiles bycause it hath ben suffered to the cōtrary & that in many places tithe hath ben payd therof. I passe it ouer but where tithe hath nat be payd of wood vnder .xx. yere. I thinke none ought to be payd at this day in law nor conscience: but admitte it that the sayd constituciō taketh effecte for paymēt of tithe wood vnder .xx. yere as of a predial tithe / yet I can nat se how the tithe therof shuld be payde by the possessoure of the wode if he sell thē but that it shuld be payd rather by hym y ^t hath the trees / for the constitucion is that the tythe shalbe payde as a reall or a pre­dial tithe / & that is the .x. parte of the same [Page] trees as it is of corne / & if a man bye corne vpon the groūde the byer shall pay the ty­the & nat the seller & so it shulde seme to be here & what the constitucion mente to de­cree the contrari in tythe wode I can nat tell oneles the meanyng were to enduce y ^e owners to pay tyths of great trees whan they fell thē to theyr owne vse whiche me thynketh shulde be very harde to proue to stande with reason though the sayd statu­te had neuer be made as I haue sayd before. And ferthermore I wolde here vnder correccion moue one thynge & that is this that as it semeth they y ^t were at the ma­kynge of the sayde constitucion that kne­we the sayd prescripcion dyd nat folow y ^e directe order of charite therin so perfitely as they might haue done / for whan they made the sayd constitucion prouinciall di­rectely agaīst y ^e said p̄scripciō / they set law agaīst custome / & power agaīst power & in maner the spiritualtie agaīst the tēporal­tie / whereby they might well knowe that greate variaūce & sute shuld folowe / & ther­fore if they had clerely sene that the sayde prescripcion had ben agaynste conscience they shulde fyrste haue moued the kynge & his counsayle & the nobles of the realme to [Page 150] haue assented to the reformacion of that p̄ scripcion & nat to make a lawe as it were by authorite & power agaynst the prescripcion & than to threte the people & make thē byleue that they all were accursed y ^t kept the sayd prescripciō or that mayntayne it / & it semeth to stande hardely with consciē ce to reporte so many to stāde accursed for folowinge of the sayd statute & of the sayd p̄scripcion as there do & yet to do no more than hath be done to bringe them out of it

Me thinketh that it is nat cō ueniēt that lay mē shuld argue the lawes & the decrees or constituciōs of the church & therfore it were better for them to gyue credence to spirituall rulers that haue cu­re of theyr soules than to truste to theyr owne opinions / & if they wolde do so than suche matters wolde moche the more ra­ther cesse than they will do by suche reasoningꝭ.

In that that belōgeth to the articles of the faythe I thynke the people be bounde to byleue the church / for the churche gadered to gyder in the holy ghoste can nat erre in suche thynges as belonge to y ^e catholike fayth but where the churche maketh any lawes wherby y ^e goodes or possessions of the people maye be [Page] bounde / or by this occasion or that may be taken fro them there the people may law­fully reason whether the lawes bideth thē or nat for in suche lawes the churche may erre & be deceyued & deceyue other eyther for singularite or for couetyce for some o­ther cause / & for that consideracion it per­teyneth moste to thē that be lerned in the lawe of the realme to knowe suche lawes of the churche as trete of the orderynge of landes or goodes & to se whether they may stande with the lawes of the realme or nat & therfore it is necessarie for them to know the lawes of the churche that treate of dismes of executours of testamentes of lega­cies bastardye matrimonie & diuers other wherin they be bounde to knowe whā the lawe of the church must be folowed & whā the law of the realme / wherof bycause it is nat our purpose to treate. I leue to speke any more at this tyme / and wyll resorte a­gayne to speke of tythes / wherin some mē say y ^t of tynne / cole / & leade no tythe shulde be payde whan they be solde by the owne of the grounde bycause it is parte of the enheritaunce & it is more rather a distruc­cion of the enheritaunce than an encreace / & therfore they say that if a mā take a tyn [Page 151] werke & gyue the lorde the tenthe dysshe accordynge to the custome that the lord shall pay no tythe of that tenth dysshe neyther prediall nor personall: but if the other that taketh the werke haue geyns & aduaunta­ge by the werke it semeth that it were nat agaynste reason that he shuld pay a personall tythe of his geyns the charges deducte.

I pray the shewe me fyrst what thou takest for a personall tythe and vpon what groūd personal tithes be payd as thou thinkest so that one of vs mystake nat a nother therī.

I will with good wyll & therfore thou shalt vnderstāde that as I take it personall tythes be nat payde for any increase of the grounde / but for suche ꝓfite as cometh by the labour or industrie of the person / as by byeng & sel­lynge & suche other / & suche personall ty­thes as I take it muste be ordered after y ^e custome & the churche hath nat vsed to leuye those tythes by compulsion but by conscience of the parties / neuertheles Ray­mond sayth that it is good to pay personal tythes or with the assente of the person to distribute them to pore mē / or els to pay a certayn porciō for the hole / but as Innocē sayth / where y ^e custome is y ^t they shuld be [Page] payde the people be bounde to pay thē as well as predialles / the expences deducte / howe be it in the churche of Englāde they vse to sue for suche personall tythes as wel as for predialles & that is by reason of a cō stituciō prouinciall that was made by Robert wynchelsey late archebisshope of Caū torbury / by the whiche it was ordeyned y ^t personall tythes shuld be payd of craftes & marchandyse / & of the lucre of byeng & sel­linge / & in lykewise of carpēters / smythes / weuers / masons & all other that worke for hyre that they shall pay tythes of theyr hyre except they will gyue any thyng certayne to the vse or to the light of the churche if it so please the person / & in another place the sayd archebisshoppe saythe that of the pawnage of woodes & suche other thīges &c̄. & of fysshynges / trees / bees / downes / & of diuers other thinges there remembred / & of craftes / & of byenge & sellynge & of the profites of diuers other thinges there re­ceyted / euery man shuld holde satisfi com­petently to the churche / to the whiche they be bounde to gyue it of right / no expences by the gyuinge of the sayd tythes deducte or withholden / but onely for the payment of tythes of craftes & of byenge & sellinge / [Page 152] & vy reason of the sayde constitucions pro­uincials somtyme sutes be taken in the spirituall court for personall tythes / & therof many men do meruayle / bycause the deduccions many tymes must be referred to the conscience of the parties. And they mer­uayl also why a law shuld be made in this realme for paīge of personall tythes more than there is in other contreys. And here I wolde moue the ferther in one thyng cō cernyng suche personall tythes to knowe thy mynde therin / & that is / if a man gyue to another an horse / & he selleth that horse for a certayne summe / shall he paye any tythe of that summe.

what thī kest thou therin.

I thīke that he shall pay no tythe / for there as I take it the profite cometh nat to hī by his owne industri but by the gyfte of an other / & as I take it: personall tythes be nat payd for euery profite or aduauntage that cometh newly to a man except it come by his own industri or labour & so it dothe nat here.

And also if he shulde paye tythe of that he solde the horse for: he shuld pay tithe for the very hole value of the thinge. And as I take it: the personall tythes for byenge & sel­linge shall neuer be payde for the value of [Page] the thynge / but for the clere geynes of the thynge / and therfore I take the cases be­fore rehersed where a man selleth his lan­de or pulleth downe a house and selleth the stuffe / that he shulde there paye no tythe / that it is there to be vnderstande that he hath the lande or howse by gyfte or by dis­cent / for if a man bye lande / or bye the tymber & stuffe of a howse and sell it for agayn I suppose that he shulde paye a personall tythe for that gayne / and this case is nat lyke to a fee or annuite graunted for coun­sayle where the hole fee shalbe tythed / for the charges deducte or some certayn some for it by agrement / for there the hole fee cometh for his counsayle whiche is by his owne industrie. But in the other case it is nat so / and the same reason as for the person all tythe might be made of trees whan they descende or be gyuen to any man and he selleth them to a nother that he shall paye no personall tythe.

Me thynketh that if the horse amende in his kepynge & than he sell the horse / that than the tythe shalbe payd of that that the horse hath encreased in value after y ^e gyft & so it may be of trees that he shall pay tythe of that that the trees be amended after [Page 153] the gyft or discent.

Than the tythe muste be the .x. parte of the encrease the expences deducte / and than of trees the charges muste also be deducte / for it is than a personal tythe / and there is no tree that is so moche worthe as it hath hurte the grounde by the growynge / & therfore there can no personal tythe be payd by the owner of the grounde whan he selleth thē though they haue increased in this tyme. Neuertheles I will speke no ferther of y ^t matter at this tyme / but wyll shewe the that if tyme / lede / cole / or trees be solde that a myxte tythe can nat growe therby / for a myxt tythe is properly of calues / lā ­bes / pygges / & suche other that come part of the groūd that they be fedde of / & part of the kepyng industri & ouersight of the ow­ners as it is sayd before / but tynne / lede / & cole are parte of the groūde & of the freholde / & trees growe of thē selfe / & be also an­nexed to the freholde & will growe of themselfe / & also the mixte tythe muste be payde yerely at certayne tymes appoīted by the law or by custome of y ^e cōtrey / but it may happē that tīne / lede / cole / & trees shall nat be felled nor taken in many yeres / & so it semeth it can nat be any mixt tythe / & these [Page] be some of the reasons whiche they that wolde mayntayne that statute & prescrip­cion to be good: make to proue theyr intēt as they thynke.

What thynke they if a man sell the loppes of his woode whether any tythe ought there to be payd

They thynke all one lawe of the trees & of the loppes.

And if he vse to fell the loppes ones in .xii. or .xvi. yere / what holde they thā.

That all his one.

And what is theyr reason why tythe ought nat to be payde there as well as for woode vnder .xx. yere.

For they say that the loppes are to be taken of the same condi­ciō as the trees be what time so euer they be felled / and that no custome will serue in that case agaynst the statute / no more thā it shuld do of great trees.

And what holde they of the barke of the trees.

Therin I haue nat herde theyr opinions / but it semeth to be one law with the loppes.

I perceyue wel by that thou hast sayd before that thy mynde is that if a hole contrey prescribe to be quite of tithes of trees / corne / & gres / or of any other tythes: that that p̄scripcion is good so that the spirituall ministers haue suffi­cient [Page 154] beside to liue vpō / dost thou nat mene so.

yes verely.

And than I wolde know thy mynde if any mā contrary to that prescripcion were sued in the spirituall court for corne & gres or any other rythes whether a prohibicion shulde lye in that case as it dyd after thy mynde before the sayd statute where a man was sued in the spirituall court for tythe wood.

I thynke nay.

And why nat there as well as is dyd where a man was sued for the tithe woode.

For as I take it: there is great diuersiti bytwene the cases & that for this cause / there is a maxime ī the law of Eng­lande that if any sute be taken in the spirituall court wherby any goodes or landes might be recouered / whiche after the groū des of the lawe of the realme ought nat to be sued there: though percase the kynges court shall holde no plee therof: that yet a prohibicion shuld lye / & after whan it had continued longe that no tythes were payd of wood bycause of the sayd prohibicion & that after by processe of time some curates began to aske tithes of wood contrary to the law & cōtrary to the sayd prescripcion: so that variaūce begā to ryse bytwene cu­rates [Page] & theyr parysshens in that behalfe / than for appeasinge of the sayd variaunce the sayd statute was made / & that as it se­meth more at the callynge on of the spiri­tualty thā of the tēporalty / for the statute doth nat expressely graunt that the prohi­bicion in that case of tythe wood shulde lye so largely as some saye it laye by the lawe: howe be it / it doth nat restrayn the comon lawe therin as it appereth euidently by y ^e wordes of the statute / & so after some men it appered before the statute & also after y ^e statute as I haue touched before / that the spirituall courte ought nat in that case to haue made any processe for [...]ythe wood: & therfore if they dyd a prohibicion laye by the comon lawe: & lyke lawe is if the spiri­tuall courte make processe vpon suche a le­gaci as by the law of the realme is voyde. As if a man bequethe so one a nother mā ­nes horse / & the spirituall courte thervpon maketh processe to execute y ^t legaci: there a prohibiciō lyeth / for it appereth euidētly in the lybell if all the trouth appere in the lybell that in the law of the realme that legaci is voyd to all entētes. And that he to whome the legacy is made shall neyther haue the horse nor the value of the horse. [Page 155] And in lykewyse if a man sell his lande for C. li. & he is sued after ī the spirituall court for the tythe of the sayd. C. li. There a prohibicion shall lye / for it appereth in that case opēly in the lybel that no tythe ought to be payd / & that the spirituall law ought nat in that case to make any processe whereby the goodes of hym that solde the lāde myght be taken fro hym agaynste the law of the realme / and vpon this grounde it is that if a man were sued in the spiritual courte nowe sythe the statute for a mor­tuary that a prohibicion shulde lye / for it appereth in the lybell: that sythe the sta­tute there oughte no sure to be taken for mortuaryes / and the same lawe is if any sute were taken in the spirituall court for a newe duty that is of late taken in some places vpon leases of personages and vy­carages whiche is called a dimission no­ble / for it appereth euidently in the lybell if any be made therupon that no suche processe oughte by the lawe of the realme to be made in that behalfe / but in the case of tythe corne / or gresse / or suche other thīges whereī thou haste desyred to know my mynde / there appereth nothyng in the lybel but that the sute thereof of right per­teyneth [Page] to the spirituall lawe & so for any thynge that appereth the partye maye be holpen in the spirituall court by that pre­scripcion / and if the case were soo farre put that in the spirituall court they wolde nat alowe the sayd prescripcion / yet I thī ke no prohibicion shulde lye / for thoughe the spirituall iuges in a spirituall matter denye the parties of iustice / yet the kinges lawes can nat reforme that / but muste re­mitte it to theyr conscience. But if there were some remedye prouided in that case / it were well done / for some saye that in the spirituall courte they will admitte no plee agaynst tythes. And also if a composicion were made by assent of the patrone & also of the ordinari bytwene a persone and one of his parysshens that the person and his successours shuld haue for a certayne groū de so many quarters of corne for his tythe yerely / and after contrary to that compo­sicion the persone in the spirituall courte asketh the tythes as they fall / that in this case no prohibiciō shuld lye / ne yet though the case were further put that the compo­sicion were pleaded in the courte and were disalowed / but all resteth in the conscience of the iuges spirituall as is sayde before [Page 156] how be it bycause some be of opinion that a prohibicion shulde lye in this laste case / therfore I well referre it to the iugemente of other / but in the case of the prescripcion before rehersed I take it for y ^e clerer case / that no prohibiciō shall lye as I haue said before. And I beseche our lorde that this matter and suche other lyke thereto maye be so charitably loked vpon that there be nat here after suche diuisions ne suche di­uersities of opinions therein as hath ben in tyme paste wherby hath folowed great costes and charges to many persons in this realme & y ^t hath moued me to speke so farre in this chapitre and in diuers o­ther chapitres of this presente boke as I haue done / nat entendynge thereby to gyue occasion to any persone to witholde his tythes that of righte oughte to be payde / ne to alter the porcion therein be­fore accustomed / but that as me thynketh they oughte to be claymed by the same title as they oughte to be payde / & by none other / & that it may also sōwhat appere y ^t the sayde statute of .xlv. of Edwarde the .3. was well and lawfully made and vpon a good reasonable consideracion / and that [Page] the sayde prescripcion is good also / so that no man was in any daunger of excommunicacion for the makynge of the sayd sta­tute / nor yet is nat for the obseruyng thereof / ne yet of the sayde pre­scripcion as it is noted by some persons that there shulde be. And thus I cōmit the vnto our lorde: who euer haue bothe the and me in his blessed kepyng euerlastīgly. Amē.